day9.md

Byron's Trial, Day 9 (Week 2)

(Can't play video for half an hour)

• Prosecution: There were technical difficulties with the video.

• Judge: When did you get here to set it up?

• Prosecution: 9:15 ???

• Judge: Next time get here at 8. We can't have this.

• Defense: I lost the coin toss [and have to tell you instead of the prosecution]. We can't do it in this time...

• Judge: ... Please provide some authorities for your statements about one charge failing causing the warrant to fail over the weekend. I've looked at Church of Scientology that doesn't seem to be the case. My clerk hasn't been able to find any such cases...

• Defense lists cases on severability:

  • Justice Casey Hill: M. N. M
  • Brampton of the Ontario Court of appeal, 2001
  • Justice Furgeson
    • Jacobson, 2003 or 2004? (referred to in Hill)
    • Chung [corrected alter to Lee]

• Judge: Could you give authorities for the warrant not issuing...

• Defense: ...

• Judge: You've been going on an all or nothing basis... Please prepare a factum for this... You're going to argue the computer issue, with the 24(2) analysis, all as one, as soon as possible.

• Judge: You raised a number of arguments that would have been fatal, but I didn't find any of them to be the case...

• Judge: If there is severance, things seem fairly clear.

• Defense agrees to exchange memorandums about law by email.

• Judge asks Byron if he's OK with them discussing this by email.

• Byron says yes.

• Judge makes timeline for next week...

• Defense: If you agree that there were no grounds for search of the computers because of explosive we might be in agreement....

• Judge is frustrated by how late some of this is late, how she keeps needing to give rulings for them to proceed, risking hiatus and forcing her to work weekend.

• Defense was not disclosed something until first week...

• Prosecution argues that the details of individual files on the harddrive is to specific to disclose about the reasons for seizure...

• Defense talks more about things not disclosed, including expert.

• Judge asks Prosecution if there is any other evidence that they plan to bring in and haven't disclosed.

• Judge asks if there is any evidence that Oullet will be asked about.

• Prosecution: We're just bringing Oullet in to explain how to access the harddrive.

• Defense: If they aren't going to ask about Justification.

• Prosecution: My motivation is just to avoid the unfair treatment like French received where the Defense could speculate...

• Judge: So you're just making him available.

• Prosecution: Yes.

• Defense: If she is going to try adverse inferences from me asking questions... Well, I'm not in a position to ask questions without disclosure...

• Prosecution: I can't discuss every file...

• Judge: It would be good if you still wrote a will-say about how it was conducted in general.

• Prosecution: I thought this was covered in agreed statement of fact...

• Judge: Defense & Prosecution should talk and give a general....

Sergeant Shane Penton

Video of Byron's arrest.

• Byron taken off of pulled over bus.
• Don't see anything for a few minutes
• Handcuffed Byron put in car.
  • Convinced to sit sideways with feet on seat for comfort.
  • Told it would not be disrespectful.
• Byron laughs a bit.
• Few minutes of silence again.
• Byron: Contact info of my lawyer is in my wallet
• Read charter rights
• Byron agrees that he can wait to get to the station to get his lawyer -- impractical here.
• Byron explains contact info is for an arrest help line
• Byron asks if they were waiting for him to go out in public to make the arrest.
• Byron wiggling around, presumably trying to get comfortable
• Officer asks about temperature in the back.
• Byron mutters about jay-walking
• "Comfortable? As comfortable as one can be, given..."
• Byron asks what would have happened if he'd been driving a car.
• Byron: "Well, here goes my day."
• Byron starts whistling.

(Judge asks about whether there is an value. Prosecution says it is to demonstrate that Mr. Sonne wasn't stressed by his arrest.)

• Byron says he doesn't see how he could have been committing mischief, wonders aloud about whether this is to put the fear of the state in him.

• Byron starts talking about technology around the car. Makes a crack about operating system use [presumably they are using Windows].

• Byron comments on how the police go outside the car to talk.

• Video ends.

Prosecution asks Penton question:

• Is that the back seat of a police car?
  • Yes, mine
• Is that your voice we hear asking Byron if he's comfortable and if the air conditioning needs to go up?
  • Yes.

( Break )

• Defense: I've received disclosure of a notebook of my clients. I haven't seen it before. I don't know what significance, if any, that will have. I've asked my friend how it is that we got such late disclosure and who has had access to it. I just wanted to bring this to the attention of the court.

Defense crosses Penton

• Just arresting, no prior or later involvement in

• Originally just told that there was a count of mischief times 2, but later found out that

• Give right to counsel and then gave the second caution. Mean that at first was the right to counsel.

• Clear Mr. Sonne wanted to talk to counsel.

• Not practical in the car but you said you'd help once you get to the station.

• Not aware of a plan to deny phone access.

• Advised intel that the search was going on and gives no calls.

• Sign outside room with Mr. Sonne telling not to give access to phone.

  • Wording of note seems to suggest he was told by intel officers
    • I recall being the one told.
    • Madanian told him to ensure no calls

• Seized knapsack. Doesn't remember...

• Put him in an interview room A because it was empty.

• Any reason you put him in an interview room?

  • People either go in an interview room or a cell.

• But you might intend to interview someone you put in an interview room?

  • Really a holding room
  • Ask some basic questions about who he is.

...

Prosecution:

• What is a scanner?
  • A police scanner. Like our portable radio. Traps our radio waves to listen to our conversations.

Detective-Sargent Bui (Part 3)

(Continue watching video)

• We're going to have to talk about a strategy, me, your lawyers and you for a guilty plea.
• I want you to see how this case is growing and how it ... Kristen ..
• Police brings up posts about Byron "testing the security apparatus"
• Talks about
• Bought cold packs at pharma plus on bank cards
  • Bui: This shows that you were open.
• "Man up and take responsibility for the stupid things you've done..."
• "She had nothing to do with any of this!"
• "The big issue is explosives..."
• I don't know that she'll be able to get bail, given that comment.
• "If we knew when you started to buy chemicals and that the comment predated it... When?"
  • "April..."
    • "All of it?"
      • Most of it.
  • Can we prove that you were using the wave cannon at the time.
• "Are you telling me that you didn't buy any chemicals to produce explosives before then?"
  • "I can't think of anything Christmas"...
• "I know your lawyers will tell you not to talk to me... But I'm still going to show you stuff. You don't have to talk if you don't want. I won't be offended."
• "She's everything to me."
• "I don't think I purchased anything in cash. You can get the credit cards and find out when everything was bought."
• "Where did you buy stuff?"
  • Leaside Home Depot...
• "Why did you go to those? Kind of far from home..."
  • "I've spent a lot of my life keeping the Don Valley clean and safe, getting supplies, building ramps. I know all locations around there.."
• "Evidence that will exonerate your wife..."
• "Might not be good for you, bu it would help your wife and I think you've come to terms with you..."
• "Please do what you can for Kristen. I couldn't live with myself if she got shoved in some hole..."
• "Your lawyers will tell you never to talk to me again, but... Kristen ..."

Prosecution asks questions:

• Was that a fair depiction of your interaction with Mr. Sonne?
  • Yes, thought the audio jumped a bit.
• Didn't speak to him further and you don't know of anyone else doing so?
  • Yes.

(Lunch)

• Prosecution: I would like to file a new exhibit, with my friends consent, four short documents. Community mobilization, arrest hotline, "what to do if the police come knocking" -- Byron linked to these ("Everyone should read these PDFs).

• Judge: I don't want to leave counsel with the impression that they are in control of the time schedule. We're wildly over the time estimate.

Defense:

• You've interviewed many people.
• Especially those accused of crime.
• Certain formalities.
• You are a person in authority.
• You are not allowed to provide any inducement.
• Not allowed to make threats or promises, or extend hope.
• Particularly important to not tie your promise to consequences.
• You watched the two videos.
• Is it your impression that you made any promises?
• I don't believe so.
• Threats?
• No.
• Did you lie to Mr. Sonne?
• Define lie. I might suggest things, or put things implicit in a question.
• Second interview: Any promises or threats?
• No.
• Any lies?
• No.
• Your unit was the Asian Join Crime Task Force?
• Yes, since 2008. One of the supervisors.
• You were a supervisor?
  • Yes
• And your unit usually involves more serious? Cases involving warrants, wire taps, confidential source? Complicated investigations.
  • Yep.
• Lots of planning involved?
  • Yes.
• In advance of the take down of a major case, you do lots of planning?
  • Yes.
• There's a detailed plan in place before a bunch of arrests and searches?
  • Yes.
• Not just things on the ground? Planning of investigation?
  • Yes.
• Of the interrogation of a arrested person?
  • Yes.
• Better to due it before they go before the court 24 ours later?
  • Yes.
• Because they're better informed?
  • Yes.
• Better to interrogate when they know less?
  • There's a tactic.
• You want to control the information?
  • Yes.
• Lots of units broken up and... ?

(Court clerk's phone goes off)

• More people assigned to criminal investigation around G20?

  • Yes.

• Your unit wanted to stick together?

  • Yes. For a specific reason.

• I assume because you want to deal with important cases arrising?

  • We were already running an important investigaton and didn't want to be split up.

• Nothing to do with this case?

  • Yes.

• So you'd handle criminal cases arrising from the G20?

  • Yes.

• No previous involvement with Mr. Sonne?

  • Yes.

• Contacted? Went to 13 division?

  • Yes. Got there at 23:05

• Heard a briefing involving...

  • a briefing involving Sargent Chong, [2 names missed]

• Detective Supermarang guarding crime scene?

  • Yes.

• Lopez and Supermarang came from crime scene to 13 Division?

  • Lopez wasn't at crime scene.
  • Lopez arrived at the same as me
  • Supermarang later, after first briefing.

• What happened then?

  • Asked about what they found at the home?

• Arrival of ... after Mr. Sonne is given his rights?

• Supermarang is... ?

  • From organized crime as well, seconded to the Joint Intelligence Group.

• You've watched most the court case?

  • Yes.

• Supermarag was described as being in intelligence. Would you agree he was in an intelligence role?

  • Yes.

• Really started learning once you arrived at 13 division?

  • Yes.

• Did you review the ITO before 11:50? Speak to French?

  • No.

• Speak with Hill or Garrow?

  • No. But I spoke with a Detective Bakus.

• Subsequently had a chance to read the information to obtain?

  • Yes.

• Wanted to read before talking to Mr. Sonne?

  • Able to look over it.

• Certainly, you'd want to know the nature of the allegations before you interact withe the subject of such a significant investigation?

  • Yes. I thought the synopsis helps me.
  • I was able to view the synopsis but not the ITO before seeing Mr. Sonne.

• You understood that these were very serious allegations regarding the G20 before meeting Mr. Sonne?

  • Yes.

• You were aware there were concerns about the G20 fence, electronic interruptions, explosive substances.

• You first described "explosive substances" and then caught yourself and said "chemicals that could be used to make explosives". Do you recall?

  • No, but I don't think that would be unreasonable.

• You understand the difference?

  • yes.
  • I meant by "chemicals that could be used to make explosives" that we didn't know for sure that they were explosives.

• I'm trying to understand what you knew at the time?

  • I heard a lot of different things at the time.

• You understand that there's been an ongoing issue regarding whether there was a completed explosive substance or whether there was chemicals that could be used to make explosives?

  • Yes.

• And that Officer French claimed there were explosives?

  • Yes

• You testified that there was HTMD, an explosive substance, at a bail hearing?

  • Yes.

• When did you, as the officer in charge, that you understood that there was no explosive?

  • I'd say 10 days, 2 weeks, before we fully understood.

• I'm going to hand over your affidavit at the November 22 bail hearing? [Defense counsel hands Detective Tam Bui copy of his affidavit.]

• Specifically may I direct you to paragraph 21.

• Bui flips pages, last page (reviews paragraphs)

  • You swore in November that there was HTMD located...

• Not the case?

  • Yes. That was a mistake.

• Trying to be true to the court?

  • Yes.

• Would you agree that you might be back filling what you know now to the past?

  • ...

• So, you've got six charges.

  • yes

• When you went to Mr. Sonne, where they all there?

  • yes.

• Defense goes through all charges getting him to agree with them?

  • yes.

• Potato Gun was a weapon?

  • We saw the boards with holes and realized they must be weapons to do that sort of damage.
  • Dissembled version...

• Fifs walk-through?

  • Possibly after midnight.

• Learn about what French is doing? Detectives Hill & Garrow spoke to Mr. Sonne?

  • Yes, yes, spoke to Hill and Garrow.

• You understood that Hill & Garrow spoke to Mr. Sonne, before he spoke to a lawyer.

• Let's recap:

  • Important investigation.
  • You thought actual explosives
  • You know he's spoken to an intelligence officer, though he hadn't spoken to a lawyer.

• Did you arrange for recording of your first interaction...

• Interview room A?

  • No video recording.

• Bring portable recorder?

  • Yes, audio on the 26th.

• If you had wanted a video camera, you could have got one?

  • Yes.

• It would have been a best practice to record that interaction with Mr. Sonne with regards to his interview?

  • No. We oten don't.

• Did you intend to interview him?

  • Yes.

• You would want to follow all the formalities so that it could be used as evidence?

  • Yes.

• Would you agree that it is best practice to ensure there is no doubt about rights in criminal investigations?

  • Yes.

• Depite the fact that this is a best practice, there are sometimes instances where you have reasons not to...

  • Yes.

• For example, to make things informal or when things are done on a confidential basis.

  • Sure, amongst other reasons.

• You want to avoid formality because it makes them less likely to speak to you?

  • I don't want to use the word 'formality'. It's rapport building.

• You give his rights from memory?

  • Yes.

• Risks involved. You could make mistakes?

  • I am comfortable with it.

• I understand that you are comfortable, but you understand that a court may not be?

  • I mitigate the risks by putting them in counsel.

• You might use more informal language?

  • Often people don't understand the wording at the back of the booklet. It's a piece of paper slipped in by a printing company...

• Primary caution: people are usually familiar with this one from American TV.

• Secondary caution often isn't as well understood by people, I suggest. They shouldn't be influenced by what other people have said to them or they've said.

  • Spirit is important.

• Yesterday, you were persuaded that

• You remember that Dumlaw said Mr. Sonne said he didn't understand. Do you disagree?

  • Yes, but I was convinced he understood.

• [says it should be understood as a comment about charges...]

• Said he wanted a lawyer.

  • Yes.

• You made a mistake yesterday when you gave the secondary caution:

  • Yes.

• And then my friend followed up asking about if you said anything about the interactions of other officers, and you said no.

  • Yes, but my notes say I gave the secondary caution.

• I'm going to suggest you made the same mistake in your notes...

  • No.

• But you agree that the question Mr Byrne asked did not prompt your memory?

  • No.

• His question confused you?

  • I took it as asking about what other people said to Mr. Sonne.

• Certainly didn't tell Mr. Sonne to disregard anything Hill & Garrow said?

  • No.

• So, was it your notebook that refreshed your memory?

  • Yes.

• Did you speak to other officers and allow that conversation to influence your evidence?

  • That I made a mistake on the stand.

• Again, did you speak to other officers and allow that conversation to influence your evidence?

  • I spoke to the crown...

• Did any other officer bring your mistake to your attention?

  • I spoke to the crown...

• Did any other officer bring your mistake to your attention?

  • Impossible, no.

• No notes in your notebook about discussion...

  • both cautions, do you understand? Answer yes.

• In interview, you try to not be abrasive, laugh, etc?

  • Yes.

• Tone was light when you spoke about your right to counsel?

  • Not as light. Not light.

• Told him not make things too seriously?

  • No.

(break)

(Judge: Distressed to hear that there was an instance of sexual assault [I couldn't catch context, other case])

(Judge: The trial will have to be bifurcated, short of a miracle)

• Before we leave the area of the interaction you had with Mr. Sonne regarding rights, would you agree with me that you corrected your evidence, that the one you gave me was a textbook, or should I say notebook version?

  • There are many different versions...

• But they weren't, verbatim, the words you used with Mr. Sonne?

  • Very similar...

• But would you agree that it was the notebook wording?

  • Very similar...

• Did you refresh yourself by looking at the card?

  • ... Yes.

• So the language you used was the from your notebook and not the one you used?

  • The language is the same.

• One more time, I would suggest that the language you used is that from your notebook that you looked at is the exchange...

  • No.

• Would you agree that the most important to thing in your interaction with Mr. Sonne at the time was giving the right to counsel?

  • Yes.

• Because you want evidence to be admissible?

  • Also for the persons benefit.

• Ever force someone to speak to counsel?

  • No.

• It was decided that you would be in charge of the case?

  • Lead investigator.

• Confusion?

  • Yes.

• You weren't sure who was the original officer in charge?

  • No.

• Unusual in such a serious case?

  • Yes.

• No further contact until the interview?

  • Yes.

• When did the interview commence?

  • 12:20

• A long night for you before hand, as I recall?

  • Yes.

• Half hour nap and shower?

  • Yes.

• Long night because you wanted to review as much materials as possible beforehand.

  • Yes.

• The ITO?

  • No. I didn't have the ITO.

• But the synopsis?

  • A draft of it.

• Mr. Sonne was arrested at 12:10 the previous day.

  • Yes.

• Were you aware of whether he had been brought before a justice at that time?

  • No, he hadn't.

• By my calculation, I that's 24 hours and 10 minutes.

  • Yes.

• And you're aware of the significance?

  • Yes.

• Were you aware of the time?

  • I realized as I arrived...

• Did you bring him before a justice?

  • No.

• You interviewed him instead of ...

  • I didn't control when the bail hearing was.

• Prevented him from counsel from speaking to Mr. Sonne during that interview -- that's caught on video -- a guard tells you that counsel is here...

  • Yes.

• Spoke to Supermarang about withholding the telephone? ??

  • Yes.

• You knew that ... were intelligence officers?

  • Yes.

• Detective Sergant Andrew Longstone, Detective French...

• You weren't surprised when you heard about the way they interviewed Mr. Sonne.

  • No.

• That they weren't concerned about Mr. Sonne's counsel rights?

  • No. It's a different interview source.

• You understand that sometimes there are tradeoffs between advancing the investigations and using the information in court.

  • Yes.

• Like Confidential Informants?

  • Yes.

• And there are sometimes monetary benefits?

  • Yes.

• [Dancing around whether there are benefits of not laying charges...]

• But sometimes sentences are reduced and such?

  • Through a highly structured process

• Sometimes people testify for benefits and that's called an induced statement?

  • Yes, but not confidential informants...

• Going back to the lack of concern that officers from the intelligence unit may have... Are you personally aware as to whether the investigation unit of the Toronto Police Service, ever employees a similar approach, a disregard to formalities, as regards search warrants...

(Prosecution objects: witness not qualified to answer this question. It is hearsay.)

(Defense: personally.)

• With regards to witnesses, yes.
• Are you personally aware as to whether the investigation unit of the Toronto Police Service, might disregard the formalities with regard, as regards search warrants...

(Objections: How is this relevant?)

(Bui asked to leave)

[Redacted]

(Judge: Hopefully I'll have my decision for Monday.)