R. v. Plaha, 2004 CanLII 21043 (ON CA)

minicounsel

DATE: 20040826

DOCKET: C35157

CATZMAN, DOHERTY and ARMSTRONG JJ.A.

David E. Harris

for the appellant

Respondent

and -

Roger A. Pinnock

for the respondent

Appellant

Heard: March 12, 2004

On appeal from the conviction entered by Justice Bruce Durno of the Superior Court of Justice, sitting with a jury, on October 29, 1999.

Overview

1The appellant was convicted of the second degree murder of his wife and sentenced to life imprisonment without eligibility for parole for 12 years. He appeals from his conviction.

2The appellant made several statements to the police in the 14 hours following the homicide. The trial judge excluded all of the statements except one. The appellant contends that he erred in law in not excluding that statement.¹

3I would allow the appeal. Although the impugned statement was made after the appellant had spoken with counsel, it was, because of breaches of the appellant’s right to counsel that occurred prior to that consultation, obtained in a manner that infringed the appellant’s rights under s. 10(b) of the Charter and should have been excluded under s. 24(2) of the Charter.

The Homicide

4The appellant and the deceased were married in an arranged marriage in 1994. The marriage was not a happy one. The appellant and the deceased quarrelled often, especially when the appellant had been drinking.

5On the evening of June 10, 1998, the appellant and his wife were at home with their two children. They argued over financial matters and the deceased’s alleged disrespectful treatment of the appellant’s mother who lived with them. The appellant was drinking during the argument. He stabbed the deceased once in the heart and she died within moments. A woman who lived in the same house on the upper floor arrived at the scene within seconds of the stabbing and saw the appellant holding a knife. He had blood on his shirt. By the time the police arrived a few minutes later, the appellant had changed his clothing, cleaned the knife and put it away.

6At trial, it was conceded that the appellant stabbed his wife and was guilty of manslaughter. He testified that they had argued all night and that he was drinking heavily. He also said that his wife insulted him in the course of the argument in a way that was particularly demeaning given his ethnic and cultural background. He insisted that although he could not recall stabbing his wife, he had not intended to kill her.

7The trial judge instructed the jury on the intent necessary for the crime of murder and also put the defence of provocation to the jury.

III

The Appellant’s Statements

(i) Overview

8The appellant was arrested at his home within a few moments of the stabbing. The arresting officer tried to advise him of his right to counsel, but quickly appreciated that the appellant had only a rudimentary understanding of English. He spoke Punjabi. The appellant was taken to the police station, arriving there at 11:34 p.m. He was placed in an interview room at about 11:43 p.m. Over the next 14 hours, the appellant answered questions put to him from time to time by the investigating officers. The questions were posed in Punjabi and translated into English by a police officer who spoke Punjabi and English. In the statements, the appellant repeatedly denied knowing how his wife had died. He said he had been sleeping in the bedroom, woke up, and went out into the living room to find her lying on the couch with her two children. She had been stabbed.

9The Crown sought to introduce all of the statements made by the appellant from the time he was detained at the scene at about 11:15 p.m. on June 10^th until approximately 1:30 p.m. the next afternoon, June 11^th. The defence argued that none of the statements should be admitted. It was the position of the defence that the statements were involuntary and inadmissible at common law, and that they were taken in a manner that infringed the appellant’s right to counsel and should be excluded under s. 24(2) of the Charter.

10It is convenient to divide the statements into five groups. Although each group consists of a number of utterances made in response to questions put by the police, I will refer to each group as a numbered statement:

statements made after the appellant was detained at the scene of the homicide at about 11:15 p.m. and before he arrived at the police station at about 11:34 p.m. (statement #1);
statements made by the appellant after he was placed in the interview room at about 11:43 p.m. until he was fully cautioned at about 1:23 a.m. on June 11^th (statement #2);
statements made by the appellant after he was cautioned at about 1:23 a.m., but before he had an opportunity to consult with a Punjabi speaking lawyer at about 9:15 a.m. on June 11^th (statement #3);
statements made after the appellant had consulted counsel at about 9:15 a.m., beginning at about 10:14 a.m. and ending at about 11:12 a.m. (statement #4); and
statements made to Officer Gill and Officer Sandhu beginning about 12:24 p.m. and ending at about 1:23 p.m. (statement #5).

11The trial judge found that statement #1 was voluntary but should be excluded under s. 24(2) of the Charter as the appellant had not been informed of his right to counsel in a language he could understand. The trial judge found that statements #2 and #3 were involuntary and also properly excluded under s. 24(2) because of several breaches of the appellant’s right to counsel. The trial judge found that statement #4 was the only statement that was admissible. He concluded that it was voluntary and was not connected to any of the prior breaches of s. 10(b) of the Charter. Finally, the trial judge held that statement #5 was inadmissible. On his findings, Officer Sandhu, a respected member of the appellant’s community had made certain inducements during the taking of statement #5 that rendered it involuntary.

12Statement #4 was exculpatory, but it was entirely inconsistent with the position that the appellant advanced at trial. In the statements, he denied any involvement in his wife’s death and went so far as to suggest she may have killed herself. At trial, he acknowledged stabbing her. The Crown led statement #4 during its case and used it to cross-examine the appellant.

(ii) The evidence on the voir dire

13As none of the trial judge’s rulings, except his ruling that statement #4 was admissible, are in issue, a detailed review of all of the evidence is unnecessary. The evidence came exclusively from Crown witnesses. The appellant did not testify on the voir dire.

14The appellant was arrested at the scene at about 11:15 p.m. The arresting officer could not advise the appellant of his right to counsel because the appellant did not speak English, so he contacted the station and told them that a Punjabi interpreter would be needed to advise the appellant of his rights. The appellant arrived at the police station at about 11:33 and was placed in a small interview room about ten minutes later. He remained in that room under videotape observation, except for three washroom trips, for the next 14 hours.

15The appellant sat in the room from about 11:43 p.m. until about 1:06 a.m. when Detective Neilsen, the officer in charge of the investigation and Constable Gill entered the room. Constable Gill spoke Punjabi. Detective Neilsen and Constable Gill visited the appellant on several occasions over the next 11 hours. Detective Neilsen made statements or put questions to the appellant in English and Constable Gill paraphrased those statements or questions in Punjabi to the appellant. The appellant answered in Punjabi and Officer Gill translated those statements into English. Constable Gill also made certain statements to the appellant and put certain questions to the appellant in Punjabi which did not come from Detective Neilsen. He translated the appellant’s answers into English.

16At about 1:10 a.m., Constable Gill, speaking Punjabi, tried to advise the appellant of his right to counsel and to caution him that he was not required to say anything, but that anything he did say could be used in evidence against him. During this exchange between Constable Gill and the appellant, the appellant said three times that he had nothing to say to the police. He also said that he had not done anything and did not know what had happened to his wife.

17When Constable Gill told the appellant that he had a right to counsel, the appellant said that he wished to speak to a Punjabi speaking lawyer. He did not know that lawyer’s full name. Immediately after the appellant said he wanted to speak to a lawyer, Constable Gill asked him whether he could identify his wife’s assailant. The appellant responded that he could not and explained that he had been asleep and had gone to wake her up when he discovered that she had been stabbed. This interview concluded about 1:27 a.m. when the officers took the appellant’s clothing for forensic examination.

18Between 1:30 a.m. and 9:17 a.m. when the appellant spoke to counsel, he spent most of the time alone in the interview room. He appeared to be asleep for a considerable part of this time. Detective Neilsen and Constable Gill did, however, visit the appellant from time to time. On two of these occasions, they questioned him, albeit briefly, about his wife’s death. At 2:40 a.m., Detective Neilsen and Constable Gill told the appellant that they were having trouble finding a Punjabi speaking lawyer. Gill asked the appellant if he wanted anything to eat or drink and then said in Punjabi:

You think of anything that can help us find out what happened to your wife.

19The appellant responded that he did not know what had happened to his wife. Constable Gill then asked him who was at home when the incident occurred. The appellant replied that he, his mother and his children were present with his wife.

20Neilsen and Gill returned to the interview room at about 3:20 a.m. Constable Gill asked the appellant if he had any concerns about his wife’s death and again asked him if he could help the police in any way in their investigation. The appellant explained, for at least the second time, that he had been sleeping in his bedroom, had woke up, and come out into the living room to find his wife lying on the sofa.

21Neilsen and Gill returned to the interview room on three occasions between 3:20 a.m. and 8:00 a.m. to check on the appellant. They did not question the appellant about the events. On one occasion, forensic tests were performed on the appellant’s hands.

22At 8:16 a.m., Neilsen and Gill told the appellant that they had finally contacted a Punjabi speaking lawyer. The appellant spoke to that lawyer on the telephone at 9:17 a.m. for about 15 minutes. Shortly after this conversation was over, Neilsen and Gill arranged for the appellant to get tea and donuts.

23At 10:14 a.m., about 45 minutes after the appellant had spoken with counsel, Detective Neilsen and Constable Gill re-entered the interview room. After a brief question about the donuts, Constable Gill said:

At this time we would like to find out what happened last night. … At this time we want to ask you your point of view. If you want to say anything about that.

24Neilsen and Gill did not make any mention of the prior statements made by the appellant and did not tell the appellant that he was not obliged to speak with them and that nothing he had already said to them should in any way affect his decision to speak to them at that time.

25The appellant immediately responded:

I didn’t do anything … I didn’t do anything in this. No sir.

26The appellant then began to explain, for the third time, how he had come to find his wife’s body when Detective Neilsen interrupted and directed Gill to ask him about the argument he was having with his wife. The appellant responded that it was about the children and it wasn’t “a big deal”.

27On this occasion, unlike the earlier occasions when the officers had asked only one or two questions, they persisted in their questioning of the appellant. Various pieces of evidence were put to the appellant and he was asked for explanations. At one stage in the interview, the appellant was asked what could have happened to his wife. He responded:

She may have stabbed herself.

28On the basis of the physical evidence, suicide was very unlikely. The knife was nowhere near the body. The officers pressed the appellant for some explanation of where the knife may have gone if the deceased had stabbed herself. He could offer no explanation.

29As the interview continued, the police said:

We want to give you a chance at this time to explain to us if you want to tell us anything what happened today.

30The appellant responded:

You have already told me all this before. These are same things.

31The questions from the police officers became more accusatory as the interview progressed. About a half an hour into the interview, Constable Gill told the appellant that the police already knew that he was responsible for his wife’s death, but they were trying to find out why he had killed his wife. The appellant maintained his innocence and insisted that he had told the police everything. Constable Gill then suggested to the appellant that he may have acted in anger as a result of his wife’s misconduct. The appellant again insisted that he did not kill his wife and that he did not see any knife near her body.

32The interview then turned to the appellant’s prior relationship with his wife and specifically certain incidents that had lead to criminal charges against the appellant. After listening to the appellant’s explanation, Constable Gill made it clear to him that the police knew he was lying about those events.

33Shortly after noon, Constable Gill told the appellant that the knife had been found. He told the appellant that what he said could be used in evidence and it would not help the appellant if the story he told the police did not make any sense. He offered the appellant an opportunity to tell the police a story that would make sense. The interview ended when the appellant asked to be taken to the washroom.

(iii) The trial judge’s rulings

(a) The voluntariness ruling

34The trial judge rejected most of the arguments made in support of the contention that the Crown had not proved that the statements were voluntary. He did, however, find that the caution as to the potential use of any statement the appellant might make provided by Constable Gill at around 1:15 a.m. was confusing and inadequate. After acknowledging that the failure to provide an accurate and comprehensive caution did not automatically render a statement involuntary, the trial judge concluded that in the circumstances of this case, the Crown had not established that the appellant understood the caution and potential effect of giving a statement. The trial judge was not satisfied that any of the statements made after the accused was at the police station, but prior to consulting counsel, were voluntary.

35The trial judge held, however, that the statement made to Neilsen and Gill (statement #4) after the appellant had spoken to counsel was voluntary. He assumed that counsel had properly advised the appellant and cleared up any misapprehension that the appellant may have been under as to the use that the police could make of any statement he might give to them. The trial judge also concluded that statement #4 was not an extension of, prompted by or otherwise tainted by the earlier involuntary statements.

36The trial judge did, however, exclude the statements made to Officers Gill and Sandhu beginning at about 12:25 p.m. (statement #5). As indicated above, he found that certain specific inducements were made by Officer Sandhu during that interview.

(b) The Charter ruling

37The trial judge found four breaches of the appellant’s right to counsel under s. 10(b) of the Charter:

The appellant was questioned after he was detained at his home and before his arrival at the police station. He had not been advised of his right to counsel before he was questioned.
After the appellant arrived at the police station, he was not advised of his rights under s. 10(b) “without delay”. He was held for an hour and a half before a Punjabi speaking police officer advised him of his right to counsel at about 1:15 a.m. That officer had been available since the appellant’s arrest.
During the interview that commenced at about 1:10 a.m., the appellant was questioned about the circumstances surrounding his wife’s death by Constable Gill before Constable Gill had completed advising him of his rights to counsel under s. 10(b).
The appellant was questioned concerning his wife’s death, albeit briefly, on three occasions after he was advised of his right to counsel at about 1:20 a.m., and had told police he wished to speak to a lawyer, but before he had had a reasonable opportunity to exercise that right.

38The trial judge held that the infringements of s. 10(b) warranted the exclusion under s. 24(2) of the Charter of all statements made by the appellant at the police station prior to his conversation with a Punjabi speaking lawyer at about 9:17 a.m.

39The trial judge then turned to the statement made after the appellant had spoken with counsel (statement #4). He first held that there were no further breaches of s. 10(b) after the appellant had spoken with a lawyer. In determining the effect of the prior breaches of s. 10(b) on the admissibility of statement #4, the trial judge found that the statement could not be characterized as a continuation of the statements that had been made before the appellant had a chance to speak with a lawyer. The trial judge further held that nothing said in the prior statements induced the making of statement #4 or tainted that statement. He concluded:

Once it is determined that the second statement stands alone, apart from the violation of s. 10(b), the post duty counsel statements were not obtained in a manner which infringed the Charter and are admissible.

40The trial judge’s conclusion that statement #4 was not obtained in a manner that infringed the appellant’s right under the Charter rendered the exclusionary remedy provided by s. 24(2) inapplicable. The trial judge did, however, on the assumption that he was wrong in holding that the statement was not obtained in a manner that violated s. 10(b), go on to consider the admissibility of the statement under s. 24(2). He found that the admissibility of the statement would not compromise the fairness of the trial because the Crown had established on the balance of probabilities that the appellant “would have acted no differently had none of the violations occurred”. Although the trial judge acknowledged the seriousness of some of the violations, particularly the questioning of the appellant during the “hold off” period between 1:15 and 9:15 a.m., he ultimately found that the appellant had not met the burden of demonstrating that the admission of statement #4 would bring the administration of justice into disrepute.

Was Statement #4 Admissible?

41The admissibility of statements made to persons in authority by a detained person raises common law issues and Charter issues. Questions pertaining to the voluntariness of a statement are often closely intertwined with questions pertaining to Charter admissibility. As I am satisfied that statement #4 should have been excluded under s. 24(2), I need not consider the admissibility of that statement under the common law voluntariness rule.

42This appeal presents a fact pattern well known in the case law. The appellant’s rights under s. 10(b) were violated. He gave statements to the police which were clearly inadmissible by virtue of s. 24(2). He was then properly advised of his right to counsel and chose to exercise that right. After he had exercised that right, he gave another statement to the police. On this fact scenario, if the last statement is considered in isolation from the earlier statements, there is no Charter violation and hence no question of excluding the evidence under s. 24(2). The case law demonstrates, however, the last statement cannot be considered in isolation. As Sopinka J. said in R. v. T.(E.) (1993), 86 C.C.C. (3d) 289 at 306 (S.C.C.):

… If a statement is followed by a further statement which in and of itself involves no Charter breach, its admissibility will be resolved under s. 24(2) of the Charter. …

43The relevant part of s. 24(2) provides:

Where, …

A court concludes that evidence was obtained in a manner that infringed or denied any right or freedom guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

44There are two components to s. 24(2). The first is a threshold requirement. The impugned evidence, in this case, statement #4, must be obtained “in a manner that infringed” a right under the Charter. If the threshold is crossed, one then turns to the evaluative component of s. 24(2) – could the admission of the impugned evidence bring the administration of justice into disrepute?

45The jurisprudence establishes a generous approach to the threshold issue. A causal relationship between the breach and the impugned evidence is not necessary. The evidence will be “obtained in a manner” that infringed a Charter right if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three. The connection must be more than tenuous: R. v. Goldhart (1996), 107 C.C.C. (3d) 481 at 492-97 (S.C.C.).

46As I read the trial judge’s reasons, he held that as statement #4 was not tainted or induced by the earlier statements or a continuation of those statements, it could not be said to be obtained in a manner that infringed the appellant’s right to counsel. I cannot agree with this interpretation. Whether one statement is tainted by another is essentially a causation inquiry: R. v. Caputo (1997), 114 C.C.C. (3d) 1 at 13 (Ont. C.A.). The determination of whether statement #4 was obtained in a manner that infringed the appellant’s right to counsel required a consideration of the temporal, contextual and causal connections between statement #4 and the earlier statements taken in violation of the appellant’s s. 10(b) rights. The entire chain of events from the arrest of the appellant to the end of his interrogation, some 15 hours later, must be considered in deciding whether statement #4 was obtained in a manner that infringed the appellant’s right to counsel: R. v. Ricketts (2000), 144 C.C.C. (3d) 152 at 157 (Ont. C.A.); R. v. Caputo, supra; R. v. Robinson (2000), 2000 BCCA 75, 142 C.C.C. (3d) 521 at 534 (B.C.C.A.).

47The appellant’s consultation with counsel was part of that chain of events. A consultation with counsel can sometimes have the effect of severing a subsequent statement from an earlier breach of the right to counsel. It does not, however, automatically immunize the subsequent statements from that earlier Charter breach. The effect of that consultation on the question of whether the subsequent statement was obtained in a manner that infringed the accused’s right to counsel must be a case-specific inquiry: R. v. T.(E.), supra, at p. 305; R. v. Caputo, supra, at p. 16.

48A temporal connection between the Charter breach and the subsequent obtaining of a statement will usually suffice to bring the statement within the ambit of s. 24(2): R. v. Caputo, supra, at pp. 13-14. In this case, statement #4 was made about six and a half hours after the last breach of the appellant’s right to counsel. This was considerably longer than the time gap between the breach and the subsequent statement in cases like R. v. Caputo, supra; R. v. Ricketts, supra; and R. v. McIntosh (1999), 141 C.C.C. (3d) 97 (Ont. C.A.), leave to appeal to S.C.C. refused (2000), 146 C.C.C. (3d) vi. It was, however, considerably shorter than the gap in R. v. T.(E.), supra, where the challenged statement was made the day after the breach, and after the accused had spoken with counsel twice. Sopinka J., at p. 307, referred to the “close temporal relationship” between the statement and the prior breach in holding the statement should have been excluded under s. 24(2).

49The measurement of the temporal connection between a breach and a subsequent statement requires more than simply counting the minutes or hours between the two. Events that occur during the time interval can colour the significance of the passage of time. Here, the appellant was sitting by himself in a small interview room for almost the entire six and a half hours. He was under the total control of the authorities and his contact with the rest of the world was exclusively through the authorities and subject to their control. Virtually nothing had changed in the six and a half hours between the last breach of the appellant’s right to counsel and statement #4. I do not think time passed for the appellant in the same way it would for someone who was not in custody. To a large extent, time was frozen for the appellant. In such circumstances, the mere ticking of the unheard clock cannot distance statement #4 from the earlier events.

50The trial judge referred to the six and a half hour gap between the last breach of the appellant’s right to counsel and the commencement of statement #4. He did so, however, in the context of considering whether statement #4 was “tainted” by the earlier statements. He did not consider whether there was a sufficient temporal connection, apart from any tainting, to warrant the conclusion that statement #4 was obtained in a manner that breached s. 10(b) of the Charter. I think a sufficient temporal connection did exist to warrant that conclusion.

51There was, however, much more than a temporal connection between the earlier breaches of s. 10(b) and statement #4. The statements and the breaches were all part of the same interrogation process. Statements #2, #3 and #4 were taken in the same place, by the same two police officers, Neilsen and Gill, using the same approach with the appellant. Over the course of 14 hours, Neilsen and Gill came to be the appellant’s connection to the rest of the world. They were the source of his information, his food and his access to the washroom. Statement #4 began with inquiries about the food that Neilsen and Gill had provided to the appellant a short time earlier. Neilsen and Gill then moved quickly to the same kind of broad open-ended questions about the homicide that they had asked the appellant in their earlier contacts with him. Statement #4 is but another instalment in the interaction between the appellant and the two officers that had started about 9 hours earlier.

52The close connection between the statements that violated s. 10(b) and statement #4 is evident when one compares the last question put to the appellant at about 3:25 a.m. with the first question put to him in the course of statement #4. The interview at 3:25 ended with the police asking the appellant if there was anything he could tell them that would help them find out how his wife died. The significant part of statement #4 begins with Constable Gill telling the appellant that the police wanted to find out what happened last night and would like to know his “point of view”.

53It is significant that the police made no attempt to sever any connection between the earlier statements and statement #4. The police knew, or at least should have known that the statements elicited from the appellant while he was waiting to speak to counsel were taken in violation of s. 10(b) and would not be admissible. If the police hoped to obtain a statement free of the possible effects of the earlier Charter infringements, they should have made it clear to the appellant that he was not obliged to say anything to them and more importantly, that his decision whether to speak with them should not be influenced by anything he had already said to them: R. v. D.(R.) (1994), 89 C.C.C. (3d) 576 (S.C.C.), rev (1993), 84 C.C.C. (3d) 126 (Ont. C.A.). The absence of any attempt by the police to make a “fresh start” after the appellant had spoken with counsel further cements the connection between statement #4 and the earlier statements.

54In holding that statement #4 was not tainted by or connected with the earlier statements, the trial judge relied on the consistency in the appellant’s answers throughout the questioning and the exculpatory nature of those answers. While the consistency in the appellant’s answers may contraindicate any tainting, I think that same consistency confirms the contextual connection among all of the statements. The appellant’s answers were the same because the questions were basically the same. This repetition suggests a continuity that supports the conclusion that all of the statements were part of an ongoing interrogative process.

55I also cannot agree that the exculpatory nature of the appellant’s answers suggests that the statements were not part of the same ongoing process. While it is true, as the trial judge indicates, a person who has provided an inculpatory statement may feel compelled to explain that statement in a subsequent exculpatory statement, it is equally true that a person who has given an exculpatory statement may conclude that he or she cannot be harmed and may be helped by repeating that statement.

56I would add that the statement #4 is not entirely repetitious of the earlier statements. The questions posed by the police were more extensive in statement #4 and consequently the appellant went somewhat further in denying any liability. In particular, his suggestion that the deceased may have killed herself appears for the first time in statement #4. That suggestion, while not inculpatory, certainly had the potential to severely damage the appellant’s credibility when he ultimately testified that he was responsible for his wife’s death.

57Statement #4 was closely connected, both temporally and contextually, to the earlier breaches of the appellant’s right to counsel. It was obtained in a manner that infringed his right to counsel. The admissibility of statement #4, therefore, turned on whether its admission into evidence could bring the administration of justice into disrepute. That determination requires a consideration of the effect of admission on the fairness of the trial, the seriousness of the violations in issue, and the effect on the administration of justice of excluding the evidence: R. v. Collins (1987), 33 C.C.C. (3d) 1 (S.C.C.); R. v. Caputo, supra, at pp. 16-19.

58Statement #4 was conscriptive evidence. The admission of conscriptive evidence obtained by a Charter breach will generally impair the fairness of a trial, thereby necessitating its exclusion under s. 24(2): R. v. Caputo, supra, at p. 16. Exclusion of conscriptive evidence under s. 24(2) is all the more compelling where the breach of an accused’s right to counsel is a serious one. I agree with the trial judge’s conclusion that the police questioning of the appellant during the eight hour “hold-off” period when the appellant was waiting to speak to a lawyer was a serious breach of his s. 10(b) rights.

59Evidence that is conscriptive will not impair the fairness of a trial if the Crown can demonstrate on evidence that an accused would have provided the same conscriptive evidence had his or her constitutional rights been honoured: R. v. Bartle (1994), 92 C.C.C. (3d) 289 at 316 (S.C.C.); R. v. Dolynchuk (2004), 2004 MBCA 45, 184 C.C.C. (3d) 214 at 231-32 (Man. C.A.), application for leave to appeal to S.C.C. filed.

60The trial judge held that the Crown had met this onus. That finding was based on the fact that the appellant, without pressing or persistent questioning, provided the same answers to the questions posed by the police after he had spoken to counsel as he did before he was allowed the opportunity to exercise his right to counsel.

61With respect to the trial judge, I think this inference was unreasonable. The appellant’s conduct during statement #4 does not admit of any inference as to what he would have done had he been given his rights to counsel as required by the Charter. The appellant committed himself to a certain position with the police when he provided an exculpatory version of events without having been given his rights to counsel. No advice that counsel could give him after he had given this statement to the police could change that reality. It cannot be assumed, especially in the absence of any indication from the police that the prior statements were “off the table”, that the appellant would have offered the same exculpatory explanation offered in statement #4 had he not committed himself to that position when repeatedly questioned in violation of his right to counsel.

62This was not a case like R. v. Harper (1994), 92 C.C.C. (3d) 423 at 429 (S.C.C.) where the evidence supported the inference that this appellant was determined to speak to the police. On this record, it can only be said that the appellant may or may not have made statement #4 had his right to counsel not been violated earlier in the interrogation. Where such uncertainty exists, the Crown has not met the onus of demonstrating that the appellant would have provided the statements had the violations not occurred.

63Statement #4 was conscriptive and its admission into evidence would undermine the fairness of the trial. At least one of the breaches of the appellant’s right to counsel was serious. Considering the impact of the admission of the evidence on the fairness of the trial and the seriousness of at least one of the breaches, I think the appellant established that the admission of statement #4 could bring the administration of justice into disrepute. It should have been excluded.

64I do not understand the Crown to rely on the curative proviso. This is not an appropriate case for the application of the proviso.

65I would allow the appeal, quash the conviction and order a new trial.

RELEASED: “DD” “AUG 26 2004”

“Doherty J.A.”

“I agree: M.A. Catzman J.A.”

“I agree Robert P. Armstrong J.A.”

¹ Counsel also alleged that certain portions of the Crown’s cross-examination of the appellant were improper. The court did not require argument from the Crown on that ground of appeal, and I will not address that ground of appeal except to say that it is without merit.