The Arrest and Detention of Byron Sonne

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Original article by Chris Olah published here. Reproduced with permission.

Byron came to the attention of the Police on June 15th as a "suspicious male" filming and taking pictures of the G20 security fence. A high-priority call was put out, and Byron was stopped by Constable Simon, who positioned Byron between the front of his car and himself, in the view of his vehicle's camera. Constable Simon was soon joined by Constables Coffin and Wong, who used their bikes to box in Byron. The officers questioned Byron, who refused to identify himself, asserting his right to not do so. In response, the Police threatened to charge him with jay-walking (despite having, the officers have admitted, no grounds), allowing them to arrest him if he did not identify himself. At this point, Byron identified himself.

The police were deeply alarmed by this and, by the next day, Byron was under surveillance by a team of police officers. On June 18th, they observed that he went to "Tucker's Pottery Supply" and "Plastic World" but while this was considered very suspicious, police never went to the stores to find out what they sold. On the 21st, he bought gardening and barbecue supplies at the Home Depot. He spent the rest of the time around the house, some of it outdoors gardening or laying in a hammock.

During this time, but apparently independently, "open source research" (i.e. looking at publicly accessible information on the Internet) was conducted into Byron, in particular turning up his twitter stream, which the police found alarming.

Cumulatively, the observation and "open source research into the deep webs", raised sufficient concern for the police to seek a warrant to search Byron's house. The affidavit -- the document describing the reasons for the search which, when signed by a judge, becomes the warrant -- was written by one Officer French, an experienced and specially trained affiant. Since there is no defense attorney present when a warrant is signed, it is important that the affiant present both sides of the story, or, as they put it, be the 3 Fs: "Full, Fair, and Frank".

June 22 affidavit

It is surprising, then, that the affidavit is factually inaccurate, misleading, leaves out evidence in Byron's favor, lacks mention of several of its sources, and is occasionally ludicrous to anyone possessing basic scientific literacy. In fact, it failed to even reach the standards one expects of a middle school English assignment -- for example, putting quotes around content from Wikipedia, or otherwise signifying that it is not your own. One point in the affidavit that was of particular importance to French (he later described it as the "primary piece of evidence") and particularly disturbing for amateur science community, is Byron's microwave waveguide, which French claims "is used to send out sound waves that disrupts [sic] communication channels and can destroy them permanently" (in his testimony, it is revealed that French seems to believe that it could permanently destroy the radio waves).

Given the misleading nature of the warrant, it is unsurprising that it was signed.

Once the warrant was signed on June 22nd, authorizing them to search until 11:59pm, the police waited for Byron to leave his house, pulled over the bus he got on, and arrested him. Officer Penton, the arresting officer, did not give Byron his second caution. Apparently out of the concern that Byron might have someone interfere with the searches, an order was made to not allow Byron access to a telephone. It is not immediately clear why this continued for 12 hours, well after the premises of Byron's house was secured, or why when Byron's lawyers called and proved they were who they said, they were not allowed to speak to him. It is also not entirely clear who gave this order.

Meanwhile, in violation of the Police's obligation to withhold questioning until the accused has received their right to counsel, Officers Hill and Garrow began interviewing Byron at approximately 4pm. They informed him that they were intelligence officers, not interested in the charges presently facing him and not there to gather evidence regarding him, but rather that they were responsible for managing confidential sources and were interested in information about planned violence at the G20. According to them, they went in knowing essentially nothing about Byron's charges and just had a conversation to introduce themselves and build rapport. Strangely enough, this interview, as with other early interviews, were not recorded and we have no way of knowing exactly what happened in them. However, there is other evidence in the form or references in later recorded interviews that suggests they interrogated Byron about pictures he posted on the Internet, and possibly other topics. In any event, once they left Byron they shared the information they had learned with the other officers present, arguably in breach of confidential informant privilege.

Contemporaneously with these interviews, the search warrant was being executed for Byron's house. At some point they found a chemistry lab. Officer's Hill and Garrow were informed and returned to interview Byron further. The explained to him that this was a matter of officer safety and that he needed to explain what everything was so that no one would be injured in conducting the search. Naturally, Byron answered. Somehow this also resulted in him talking about things that could potentially injure an officer at his cottage, which resulted in him talking about his potato cannon.

Somewhere around this time, Byron was also interviewed by Detective Bui, in order to inform him of his rights and the charges against him. This interview was not recorded, and while Bui has testified that he gave Byron his secondary caution, this is contradicted by other evidence. When asked if he understood Byron said no -- possibly because, while he had been told about his right to counsel and repeatedly asked about it, he had not yet received it, or possibly because the charges were inadequately explained -- but Bui felt he did anyways and concluded the interview.

Back at Byron's house, the investigating officers came to believe that they had found the explosive HTMD (in fact, the lab only contained chemicals that could potentially be used to make explosives) and mistook a thermocouple for a detonator. They also found the waveguide they were looking for, disassembled and in a box.

Using the results of Byron's interviews and the mistaken findings at Byron's house, French wrote a new affidavit. Somehow French didn't find out that the "wavegun" (the waveguide) was disassembled. Again, the affidavit was, unsurprisingly, signed.

After finally getting in contact with counsel by phone and declining to make a statement to the police when asked, Byron was given the opportunity to get some rest. Unfortunately a metal bed and the stress of detention aren't the most relaxing environment.

By morning, 24 hours of detention was rapidly approaching. This is significant because, in Canada, detention must be reviewed by a Justice of the Peace or Judge within 24 hours. However, the police decided to have Detective Bui interrogate Byron instead. As such, Byron's detention became unlawful. During the interview (transcript), several unpleasant if legal tactics were used to try and get a confession from Byron, in particular lying about what they'd found and what Byron had previously said. Part way through the interview, an officer reported that Byron's lawyers were there and want to speak to him, but Bui instructed him to inform them that Byron was not available.

Later, Byron's detention was reviewed and his detention became lawful again.

A few days later Bui interviewed Byron again. Byron, prepared by his lawyers, began the second interview declining to talk. To get him talking, Bui leveraged the arrest of Byron's wife, Kristen, talking about how today "is her chance" to get bail and playing Byron's guilt to say something "that's going to help her." As the interview went on, Bui strengthened his language, urging Byron to "throw himself at the mercy of the court" to save Kristen. In response to Byron's explanations, Bui urged him to give "a reasonable explanation to save your wife." Bui also insinuated that Byron could end up falling outside the Canadian legal system, eventually saying, "I am going to fight tooth and nail to beat it, to have you be at a normal facility, where we can do this, and where you are subject to the regular rules of law in Canada... But that's not to say that those people aren't going to be looking at you."

Byron answered all Bui's questions, though Bui wasn't satisfied with his answers. As the pressure increased, Byron began talking about how he can't trust promises from Bui regarding Kristen, and how he'd need to to talk to his lawyer before making any deals. By the end, Byron was reduced to begging Bui: "Anything you can do to help my wife, Sir. She's everything to me."

That summarizes the publicly available knowledge about Byron's arrest and early detention. He would be held in jail awaiting trial for almost a year, substantially because, while the police have admitted they knew "and had fully processed" that Byron didn't have HTMD or a detonator within 10 days of his arrest, they continued claiming that he did for months afterwards.

Throughout all of this, there were horrendous breaches of Byron's Charter Rights. In Canada, a Charter violation doesn't necessarily mean that evidence gets thrown out; instead it must be found that "the admission of it in the proceedings would bring the administration of justice into disrepute." (Canadian Charter of Rights and Freedoms, 24(2) ) This is what Justice Spies, the Judge for Byron's Trial, is presently deciding on.

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