R. v. Gordon (B.) et al., (1999) 94 O.T.C. 175 (GD)

• Judge: O'Connor, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: March 05, 1999
• Jurisdiction: Ontario
• Citations: (1999), 94 O.T.C. 175 (GD)

R. v. Gordon (B.) (1999), 94 O.T.C. 175 (GD)

MLB headnote and full text

Temp. Cite: [1999] O.T.C. TBEd. MR.151

Her Majesty The Queen v. Barrington Gordon

(File No. 2057/98)

Indexed As: R. v. Gordon (B.) et al.

Ontario Court of Justice

General Division

O'Connor, J.

March 5, 1999.

Summary:

Six accused were charged with drug conspiracy charges, including importing and possession of and trafficking in narcotics. The charges related to the airport seizure of two shipments of cocaine. The Crown intended to introduce at trial intercepted private communications and alleged that one of the voices was that of the accused Barrington. Barrington applied to have excluded evidence the Crown intended to use to prove the identity of his voice on some of the wiretaps (i.e., witness relying on Barrington's response to a police question, after asserting his right to remain silent, to identify his voice on the wiretap), submitting that the voice identification evidence violated his s. 7 Charter right to remain silent. The only reason for asking the accused the question was to hear his voice to identify it at trial.

The Ontario Court (General Division) held that the accused's s. 7 Charter right to remain silent was deliberately breached by police to obtain evidence to identify his voice at trial. The court held that this evidence, which was conscriptive, was to be excluded at trial under s. 24(2) of the Charter.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent (Charter, s. 7) - See paragraphs 12 to 25.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - See paragraphs 12 to 25.

Civil Rights - Topic 4613

Right to counsel - General - Requirement of arrest or detention and notice of reasons for - See paragraphs 12 to 25.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - See paragraphs 12 to 25.

Cases Noticed:

R. v. Stinchcombe (1991), 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 6].

R. v. Symonds (1983), 1 O.A.C. 103; 9 C.C.C.(3d) 225 (C.A.), refd to. [para. 7].

R. v. Chambers (No. 2) (1990), 119 N.R. 321; 59 C.C.C.(3d) 321 (S.C.C.), refd to. [para. 8].

R. v. Rendon, [1997] O.J. No. 5505 (Gen. Div.), dist. [para. 9].

R. v. Hebert (1990), 110 N.R. 1; 57 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 12].

R. v. Therens (1985), 59 N.R. 122; 40 Sask.R. 122; 18 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 14].

R. v. Thomsen (1988), 84 N.R. 347; 27 O.A.C. 85; 40 C.C.C.(3d) 411 (S.C.C.), refd to. [para. 14].

R. v. Broyles (1991), 131 N.R. 118; 120 A.R. 189; 8 W.A.C. 189; 68 C.C.C.(3d) 308 (S.C.C.), refd to. [para. 21].

R. v. Collins (1987), 74 N.R. 276; 33 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 23].

Counsel:

C. Michaelson and C. Welsch, for the Crown/respondent;

Reid D. Rusonik, for the applicant.

This application was heard before O'Connor, J., of the Ontario Court (General Division), whose following judgment was delivered on March 5, 1999.