Three men burst into the garage and shot Shabir Niazi. It was a drug rip off. That’s what Keenan Corner told the police at the scene. But at his trial for second degree murder he told an Oshawa jury he shot Mr. Niazi in the garage of his parents home when he came at him swinging a baseball bat. It was self defence. The two versions reside at the heart of a case that has meandered its way through the Ontario justice system for nine years. And it isn’t over yet.

1. Introduction

On February 19, 2014, following the shooting, Mr. Corner told various versions of the robbery story to friends, the police and a 911 operator. Several men had entered the garage that he and Mr. Niazi used to store marijuana as part of a drug dealing enterprise. The assailants pistol whipped Mr. Corner and shot Mr. Niazi. Mr. Corner then called Crime Stoppers nine days later and reported that he saw four men fleeing the scene. The call to Crime Stoppers raised a question whether the tipster was a confidential informant entitled to anonymity that I discussed in a previous post to On The Wire. (here) On September 22, 2017, the Supreme Court of Canada ruled that informant privilege does not exist where a person contacts Crime Stoppers with the intention of furthering criminal activity or interfering with the administration of justice. (here)

2. Trial

The trial was initially scheduled to begin on February 8, 2016, two years after the shooting. But the length of pretrial motions and the interlocutory appeal by Crime Stoppers to the Supreme Court of Canada triggered various adjournments until the trial was finally scheduled for September 25, 2017, over three and one-half years after the shooting. On September 22, 2017, three days before the trial was scheduled to begin, an application by Mr. Corner for a stay of proceedings for unreasonable delay under s. 11(b) of the Charter of Rights and Freedoms was dismissed by the trial judge. (here) The trial then proceeded as scheduled. On November 8, 2017, the jury convicted Mr. Corner of second degree murder and, on March 6, 2018, Justice M.K. McKelvey of the Ontario Superior Court of Justice sentenced him to life imprisonment without parole eligibility for fourteen years. (here) He appealed.

3. Appeal

On July 27, 2023, the Ontario Court of Appeal set aside the conviction and ordered a new trial in a unanimous opinion indexed as R. v. Corner. (here) Justice David H. Doherty, writing for the panel, held that the trial judge erred in failing to exclude from evidence statements that Mr. Corner made to the police. The statements were relied upon by the Crown in argument as “powerful post-offence conduct evidence that seriously undermine[d] the appellant’s self-defence claim.”

There were two other grounds of appeal that I will briefly mention. First, it was held that the trial judge did not err in dismissing the delay motion under s. 11(b) of the Charter. Although the Crime Stoppers appeal figured prominently in the analysis, the panel agreed with the trial judge that it constituted an exceptional circumstance for purposes of calculating the delay. Second, the panel also agreed with the ruling of the trial judge excluding expert psychiatric evidence “laying out the behavioural, neurological and physiological explanations for conduct associated with ‘fight or flight’ syndrome.” (here and here) I will, then, limit my comments in this post to the issue regarding admissibility of Mr. Corner’s statements to the police.

The statements were categorized by Justice Doherty as falling into three groups: (a) statements made to the police at the scene on February 19, 2014, between 4:30 p.m. and 5:00 p.m.; (b) statements made during an interview with a detective on February 19, 2014, beginning at 5:50 p.m. and continuing until 3:30 a.m. the next morning; and, (c) statements made to another detective on March 1, 2014, after Mr. Corner was arrested and charged with murder and on March 2, 2014, when that detective spoke with him in police cells.

(a) Statements Made at the Scene

Mr. Corner was standing in the driveway near the garage when the police arrived. A constable ordered him to “show me your hands” and a pat-down search was done. The trial judge concluded that the detention was lawful and in compliance with s. 9 of the Charter. Justice Doherty found that the “real dispute” regarding the statements made at the scene revolved around Mr. Corner’s status after the brief physical detention ended and he was asked to sit in a police vehicle. Detention for the purposes of s. 9 of the Charter refers to circumstances in which an individual’s liberty interests are significantly restrained by state authority. Psychological detention is established if state conduct would cause a reasonable person in the circumstances to conclude that their liberty interest was compromised such that they were under the control and direction of the police. (here)

The trial judge found that the police asked Mr. Corner to sit in the police vehicle to “get a more detailed description of the homicide.” The evidence of the police was that it was too cold to have that conversation while standing outside. Justice Doherty agreed. “[A] reasonable person, having called 9-1-1 to report the shooting, would expect to report the details of that event to the investigative officers,” he said. “An invitation to do so in the relative comfort of the police cruiser would not be viewed, by a reasonable person in the accused’s circumstances, as an intrusion upon the accused’s liberty interests.” There was, therefore, no detention for s. 9 purposes and Mr. Corner’s right to counsel under s. 10(b) of the Charter was not engaged.

(b) Statements Made During a Police Interview

The police transported Mr. Corner to the police station where he was put in a “soft interview room”. At that point he was not free to move about the rest of the police station nor come and go as he pleased. According to the police, he was being treated as a witness and a sworn statement was taken. Mr. Corner was not told he had a right to remain silent, a right to speak with counsel or a right to discontinue the interview and leave the police station. At around 7:40 p.m., Mr. Corner asked to use the washroom. The police said he could use the washroom but he could not wash his hands – presumably because the police had not yet administered a gunshot residue test. The officer left the interview room and, when he returned, he confronted Mr. Corner with inconsistencies in his statements. The police did not believe the robbery story. Mr. Corner was then advised of his right to counsel regarding a potential obstruction of justice charge but not the homicide. He left the police station around 3:30 a.m.

Justice Doherty concluded that the trial judge’s inference that Mr. Corner’s right “to leave the police station had ended” at about 7:40 p.m. was unreasonable. The only reasonable inference was that the police were not prepared to allow him to leave the interview room until they were finished questioning him. The police assumed total control over him from the time he arrived until he left ten hours later. He was thus detained for purposes of s. 9 of the Charter. Mr. Corner was not informed of the reason for the detention nor advised of his right to counsel under s. 10 of the Charter which constituted an “unreasonable error” in respect of a “fundamental police power and obligation.” The trial judge had excluded the statements made after 7:40 p.m. and Justice Doherty held that “[m]oving the time of the unconstitutional detention forward two hours exacerbate[d] the negative impact of the unlawful detention on the appellant’s liberty interests.” The statements made between 5:50 p.m. and 7:40 p.m. were therefore excluded.

(c) Statements Made Following Arrest

The trial judge divided this category of statements into three parts. The first took place during a police interview following arrest on March 1, 2014, during which Mr. Corner maintained the robbery story. The second took place in a park where the police took Mr. Corner. The police pretended to find a gun in the park presumably hoping to elicit an incriminating statement. The third took place back at the police station. The trial judge ruled that the third part, and statements made in police cells the next day, were involuntary and inadmissible. The issue then arose whether the other statements made by Mr. Corner on March 1, 2014, should have been excluded.

The trial judge ruled that the statements on March 1, 2014, were not sufficiently connected to the Charter violations nine days earlier. It was argued on appeal that the trial judge erred by requiring that a “causal relationship” between the Charter violations and the obtaining of the statements on March 1, 2014, was a prerequisite to finding they were obtained in a manner that violated the Charter pursuant to leading authorities of the Supreme Court of Canada and the Ontario Court of Appeal. (here and here) It is, of course, well established in the jurisprudence that a causal link between a Charter violation and the challenged evidence is not essential to trigger exclusion under s. 24(2). In this case, Justice Doherty concluded that, reading the reasons of the trial judge as whole, made it clear that the trial judge understood that “a causal connection was but one factor to be taken into account.”

4. Conclusion

There was one issue left unresolved. It was argued that the Charter violations during the interview at the police station “tainted” the statements made by Mr. Corner at the scene. However, it appears this issue was not raised at trial. The trial judge made no reference to it. Although the point was raised in Mr. Corner’s factum, it was not pressed in oral argument. Certainly, Justice Doherty recognized that evidence can be tainted by a subsequent Carter violation and subject to exclusion under s. 24(2). (here) It is not controversial that the necessary relationship may be “causal, contextual, temporal, or some combination of the three”. That debate, however, will have to await the new trial.