Moot # 3 – Her Majetsy the Queen v. S.(K.W.)

KINGSTON SUPERIOR COURT OF JUSTICE

K.W.S.

Accused

v.

Her Majesty the Queen

Crown

File No.: K29152

September 5, 2008

Present: Wilson J.

ON APPEAL FROM THE KINGSTON SUPERIOR COURT OF JUSTICE

[1] I have convicted the Accused of the offences of break-and-enter and theft and have sentenced him to twenty-five months in jail.  These are my reasons on the issue of admissibility of evidence, in case the accused decides to follow the special appeal route to the Kingston Supreme Court under s. 45.2 of the Kingston Criminal Code.  They will be brief reasons, which will suffice given the Kingston Supreme Court’s rejection of all of the Supreme Court of Canada’s adequacy of reasons case law, and the special standard of review of factual findings, set out in s. 45.3: “The Supreme Court may draw whatever inferences from the evidence that it considers appropriate.”

[2] The Appellant is a high school student at Mullan Private Institute of Learning in Kingston.  He is 16 years old.  MPIL is a private school, not governed by any School Board, but rather by a private board of directors.  It is, however, regulated under the Education Act of Kingston (R.S.K. 1990, c. E-5), which is exactly the same as the Education Act of Ontario.

[3] On June 3, 2006, a break-and-enter and theft took place at the Koha Smoke and Gifts, with $14,350 in cash stolen.  The cash was kept in a canvass bag in the back storeroom, and from visual observation it could be seen that the bag had been cut open with a sharp knife.  The store closed at 9 p.m.  The owner, Mary Singh, forgot a sweater she had bought for a friend, and returned to the store at 11:05 p.m.  She discovered and reported the theft, and Constable Kraft was assigned to the case. 

[4] The Koha Smoke and Gifts was next door to the Mullan Private Institute of Learning.  On the morning of June 4, 2006, Constable Kraft entered onto school property and wandered over to a student, Kim Gradine, who was standing outside the front door of the school.  Constable Kraft asked if he could ask Ms. Gradine a couple of questions.  She tried to walk away but Constable Kraft went around and blocked her way, without touching her and he asked her to “wait a moment.”  At this point, Ms. Gradine stopped and listened.   

[5] Constable Kraft asked her whether she had any information about the theft that had taken place at the Koha Smoke and Gifts.  She declined to answer.  Constable Kraft told her in a loud voice, “You must answer.”  Ms. Gradine testified that at this point she felt she had no choice and she began to talk.  She told the Constable that she had seen the Accused with a group of boys who called themselves the “Knifers” around 9 p.m., assembling at the school.   She saw them walk in the direction of the Smoke and Gifts.  In response to the Constable’s question, she saw no knives or other weapons at any time, though she said that the Accused had been hanging around that group quite a bit.  The Constable was familiar with the “Knifers,” and knew that two people who considered themselves part of that group had robbed an area store six months ago using knives, but were acquitted on the basis that s. 8 Charter violations were committed.  The Constable also knew that there had been a knife fight on the playing fields next to the school two months earlier and two students had been stabbed and nearly bled to death.  Also tires of teachers’ cars parked at the school had occasionally been slashed as well, and three notes threatening further vandalism to teachers’ cars had been left in classrooms.  The Constable thanked Ms. Gradine, who replied, “I had no choice, you forced me.” (Ms. Gradine was so upset by the incident, she took the day off and went home.) 

[6] The Constable then went straight into the school (without search warrant or invitation) and headed toward the Principal’s office.

[7] At that very moment, the Accused, then a grade 11 student, excused himself from his history class to go to the washroom. 

[8] Constable Kraft visited Principal Julie Frank. He informed her that he had information suggesting that the Appellant had committed a break-and-enter and theft during the previous night of the Koha Smoke and Gifts, with $14,300 in cash stolen, all in 100’s.  The cash was kept in a canvass bag in the back storeroom, and the bag had been cut open with a knife.  Principal Frank expressed surprise: she noted that the Appellant was a solid B+ student and while he got into fights from time to time and while she had heard reports that the Accused was associated closely with some who were known to carry pocketknives in the school in defiance of the school’s ban on them, he was never disciplined for carrying a knife.   She mentioned that one of the cars parked last evening in the school’s parking lot had its tires slashed.

[9] At 9:20 am, Principal Frank accompanied Constable Kraft to the Accused’s  history class.  The history class ran from 9:15 am until 10:30 am.  Principal Frank knocked on the door.  The teacher, Mary Fraser, came to the door and told them that the Appellant was not present.

[10] Constable Kraft said to the Principal, “You know what to do.”  The Principal nodded in agreement and said “I understand.”  They both entered the class.  She went to the desk immediately, in full view of the class.

[11] The desktop could be lifted up, revealing a storage space.  Students typically store items in the desk.  This was temporary storage, as the students moved physically from classroom to classroom as the day progressed from one class subject-matter to another. 

[12] The Appellant’s desk was vacant while he was in the washroom.  The Principal, accompanied by the Constable, in full view of the class, lifted up the desktop, revealing a backpack.  The backpack was unzipped and open, but it was too dark to see inside. 

[13] The class was quite startled by the presence of a uniformed Constable and their Principal in the middle of their classroom.  Some made jokes about the Accused, until the Principal told them to be silent.

[14] The Constable motioned toward the backpack and the Principal lifted it out from the desk and rooted around inside.  Inside, along with some books, was a pocketknife, which later testimony showed could have been the knife that cut open the canvas bag, and $4,200 in cash, all in 100’s. 

[15] At that moment, the Accused returned to the classroom.  The Constable went toward him.  The Accused tried to leave, but the Constable blocked his departure and said, calmly but not threateningly, “wait a sec, pal.”  At that point, the teacher dismissed the class, leaving behind only the Accused, the Principal and the Constable.  There was silence for 35 seconds, as the Principal continued to root around inside the backpack, and the Constable paid close attention to that, not looking at the Accused.  At this point, the money and knife were concealed in a bag held by the Constable and not seen by the Accused.  After the 35 seconds of silence, the Accused then said, “I didn’t do it.”  Another twenty seconds of silence followed and the Accused said “I hit that superfecta at Woodbine last night and won big.”  The Constable replied, “One doesn’t normally go to the track with a knife.”  The Accused said, “That isn’t mine.”

[16] The Constable then immediately frisked the Accused.  At this point he had not announced that he was arresting the Accused.  He felt something that he later testified felt “a little bit hard” in the Accused’s trouser pocket.  He was “pretty sure” that the object was not a safety concern (like a weapon, such as a knife), but he was only “95% or so” sure, so he removed it to inspect it.  It was a small daytimer book with cardboard covers.  The Accused objected, saying, “Hey, I note everything in there, it’s like a diary to me.”  He looked inside it.  Inside it was $1,500 in 100’s and a notation next to 8:30 p.m. on June 3: “School -- guys.”  Flipping through the pages, he saw no notations about any racetrack visits, but lots of private reminders and notes, including poetry that the Accused later explained were love poems to his girlfriend.  The Constable then said, pointing to an entry for June 3, “What is this 8:30 p.m. appointment about?”  The Accused said, “I want to speak to someone first.”  The Constable continued, looking toward the Principal, “It is about the ‘Knifers’ for sure”  The Accused remained silent.  At this point, the Constable took the Accused with the Principal to the Principal’s office, and the Principal continued to ask the Accused questions during the 4 minute walk to the office.  The Accused said nothing.  Once at the Principal’s office, the Constable read the Accused his s. 10 rights, arrested him, and took him to the police station, continuing to ask questions during the 20 minute drive. The Accused remained silent.

[17] The Principal said good-bye to the Constable, saying, “I am always pleased to assist the Police in keeping the school safe. As always, if you need to search someone like you did here, just let me know and I will do it.”  The evidence shows that the Police had only attended to conduct a search at the school once before.

[18] On arrival at the police station, the Accused called a lawyer, Thomas Fresk.  The lawyer advised the Accused not to speak at all until he arrived.  However, the lawyer warned the Accused that it would take him two hours to arrive.  The lawyer said the same thing to the Constable about the two hour delay after the lawyer spoke to the Accused.  

[19] The Constable left the Accused alone in the detention cell.  In the meantime, the Accused, tired from the night before, went into a deep sleep.  Constable Kraft entered the room seventy-five minutes later, and saw that the accused, while asleep, was making violent facial expressions.  Dr. Brown, testifying later for the Accused, said was consistent with a very graphic nightmare which “would focus the attention of the individual entirely on the visions presented by the nightmare” and “it would take at least a couple of seconds for someone to disengage from it, even when awakened.” 

[20] The Constable shook the Accused who had been sleeping for 75 minutes. The Constable admitted that this was done to wake up the Accused, and not to check on his health.  The Constable said, “Are you going to speak to us now? You did the theft at Koha’s, didn’t you.”  No further or additional Charter warning was given.  The Accused was “groggy but awake,” according to Constable Kraft’s testimony, but, as noted above by Dr. Brown, would have been not fully “disengaged” from the nightmare.  Constable Kraft testified that the Accused’s first words, “a second or two after he shook him,” were to mutter, “I did it, now leave me alone, dammit.”

[21] Before me, the Accused sought exclusion of everything seized: the backpack, the money ($4,200 and $1,500), the knife, the notebook, and all statements made by the accused.

[22] In argument, I was cited many authorities about investigative detention, s. 8 rights, rights to silence, rights to counsel, and search incident to arrest and investigative detention.  I do not need to review these.  In my view, the Charter rights of individuals in schools are very much attenuated, especially where, as here, knives are floating around the school.  The evidence here is “real evidence,” obviously admissible unless the breaches are severe, and highly probative of the Accused’s involvement in this serious crime.  Whatever breaches of the Charter may be here, they are not severe at all.  Police and school officials must guarantee the safety of the school.  If it is necessary to get into the details of things, I do not think that a backpack, left in a school desk that is only occupied temporarily, that has been left behind by a student, enjoys any sort of privacy.  Further, it was the Principal that did the search.  The Charter does not apply.

[23] I rule that all of the evidence is admissible.