Ontario Court of Justice
Between:
HIS MAJESTY THE KING
— AND —
CHRISTOPHER MILFORD
Before: Justice H. Borenstein
Heard on: January 17, 18, 19, April 9 & May 3, 2024
Reasons for Judgment released on: June 7, 2024
Counsel: A. Kocula, for the Crown T. Schnare, for the accused Christopher Milford
Endorsement
Overview
1Christopher Milford is charged with two counts of voyeurism with respect to surreptitiously recorded videos of two women whom I refer to by their first names; Patricia and Esther.
2This is my ruling on the admissibility of his confession, video tapes and other evidence seized under the authority of two warrants which Milford challenges under sections 8, 10(a) and 10(b) of the Charter.
3Police had an arrest and search warrant for Milford in relation to charges of voyeurism and child pornography all in relation to the complainant; K. Those charges were eventually withdrawn by the Crown.
4In August 2019, D.C. Marks and a team of officers attended Mr. Milford’s apartment shortly after six in the morning, armed with an arrest warrant and a search warrant for Milford’s home. The search and arrest warrants related to charges of voyeurism and child pornography all in relation to a complainant “K”.
5Milford was arrested for those offences and given his right to counsel. At around 6:20 a.m., he told D.C. Marks that he wanted to speak to counsel. She told him there was no privacy on scene during the search but he would be put in contact with counsel at the station.
6Officer Marks turned Milford over to transporting officers Ventura and Konkle who re-advised him of his right to counsel, transported him to the police station where he was paraded before the booking officer. That all ended at 7:08 a.m. and Milford was placed in a soft interview room where he remained for over two hours before a call to counsel was made.
7While Milford was at the station, officers were still searching his apartment and found the video tapes in relation to Esther and Patricia, which form the basis for the charges now before the Court. Marks told Detective Thomas and told him about these videos. It was decided two additional charges of voyeurism would be laid.
8Marks went into the station and, around 9:00 a.m., she told Milford he would be facing two further charges. A major issue in this Application is whether Marks told Milford the new charges related to Patricia and Esther or even two new complainants or whether she simply told him he would be facing two additional charges.
9Marks testified she told Milford the new charges related to further victims but did not recall if she told him their names. In her notes, she wrote she told Milford of new charges, not further victims or not any other names. She testified however that she remembered telling Milford there were further complainants. She was testifying about events that occurred four and a half years earlier.
10After Marks spoke to Milford, a call was placed to duty counsel just after 9:00 am, about two and a half hours after Milford was read his right to counsel. Milford spoke with duty counsel and was then brought to an interview room where he was interviewed by Detective Rob Thomas for over seven hours. That interview was recorded in its entirety. I would describe the interview as masterful. Detective Thomas was compassionate, caring and very effective. In that statement, Milford vehemently denied any involvement in relation to K. As noted, the charges relating to K were withdrawn. However, about four hours into the interview, Detective Thomas shifted focus from K to tapes involving others. From the interview, it seems apparent Milford had no idea he was facing charges in relation to Patricia or Esther. When the subject turned from K, Milford asked to have a lawyer present. Detective Thomas tells him he was not entitled to have counsel present. He did not re-read his right to counsel or offer Milford an opportunity to re-consult with counsel. Milford went on and spoke for another three hours during which he incriminated himself with respect to Patricia and Esther and told Detective Thomas where the police could find the hidden camera. At the officer’s suggestion, Milford wrote Patricia and Esther an apology. Following his confession, the police obtained a further search warrant based largely on the confession and seized the camera.
11Officers Thomas and Marks testified on the Application as did the transporting officers.
Detective Thomas
12Detective Thomas began with introductory matters. He asked Milford whether he understood the arrest and rights that occurred at his apartment. Milford replied that it had been a very stressful moment and was pretty much a blur. He said D.C. Marks told him: “I was gonna be arrested and, uh, there was some charges against me that, uh, it had to do with [K].”
13Detective Thomas then said: “My understanding is…Detective Marks would have said something along the lines of you’re gonna be arrested for one count of voyeurism, one count of make child pornography, one count of possess child pornography and one count of make available child pornography. Do you remember that?”
14Milford said he remembered. Thomas asked if he knew what voyeurism and the child pornography meant. Milford explained what those offences meant.
15Thomas confirmed Milford was read his rights relating to those four offences.
16Thomas then reviewed with Milford that he was taken to the station and booked. He asked Milford whether he spoke to a lawyer right away. Milford replied he did after a few hours in the cell. The following exchange then occurred: (pp19-20 of 277)
Okay. And that would have been as a result of, um, uh, a visit from Detective Marks. My understanding is she later came in to advise you that you would be – youre gonna be charged with two further counts of Milford: Yeah Thomas: voyeurism. Okay. Milford: Yeah Thomas: “so, in essence, it’s three counts of voyeurism and then the remaining possession, possession child pornography, make child pornography, make available child porn. And then my understanding is – do you remember her telling you that? Milford: Yeah Thomas: Okay. And then my understanding is, uh, from there, she contacted duty counsel. You didn’t have a lawyer. You didn’t have a personal lawyer is that right? Milford: Yeah
17Thomas confirmed Milford spoke to duty counsel and Milford understood what the lawyer told him. Thomas asked Milford if he wanted to speak to a lawyer again. Milford said he knew as much as he needed to know. He was formally cautioned as well.
18Detective Thomas never mentioned Patricia and Esther or any further victims in this case other than K. Not for several hours.
19Milford spoke about his depression and anxiety and began answering Thomas’ questions. As I said, Detective Thomas was compassionate and skillful. Milford was adamant he never did anything untoward in relation to K.
20247 minutes into the interview, at page 161 of 277, the focus of the interview changed from K. I reproduce that part here.
Detective Thomas asked: “Chris. Have you ever videotaped anyone without their knowledge?” Milford: That I definitely want, I want a lawyer present if I answer that cause, like I said, I’ve done stupid things but nothing involving her. I’ve never done anything involving her.
21Detective Thomas advised Milford, accurately, that he did not have a right to have a lawyer present and tells him “what if I told you we have evidence you recorded it”. Milford replied he would be shocked. I infer Milford still thought the interview was about K.
22Detective Thomas then said – “what if I told you we have information you recorded other people”.
23This is the first time Thomas makes mention of other complainants. Milford replied that is something I don’t want to answer but I have done stupid things. Thomas continued questioning Milford for three hours and Milford told Thomas the names of Esther and Patricia, where he bought the recording device and where it would be found and wrote a letter of apology.
24Thomas testified he did not mention Patricia and Esther for strategic reasons explaining he wanted to hold that information back to test the veracity of anything Milford said and, if he confessed, to ensure it was not a false confession. He also did not know if he recorded others beyond Esther and Patricia.
25Thomas was asked whether Marks told Milford there were other victims and replied she told him she advised of other charges and he would assume, with other charges, that meant other victims. He agreed Milford seemed concerned when told of other victims.
Detective Marks
26Officer Marks testified that, when she arrived at Milford’s apartment, she gave Milford and his roommate Aaron a copy of the search warrant. She told Milford he was under arrest for four counts in relation to K. She cautioned and read him his right to counsel. Milford replied that K was like his little sister and he did not know what this was about. He wanted to speak to a lawyer. Marks explained he could do so at the station. He was transported to the station. When the recordings of Patricia and Esther were found, she told Detective Thomas she would be laying additional charges.
27Marks attended the station and, at 8:56 a.m., she told Milford about two further charges of voyeurism. She was asked what exactly she told Milford. She replied she told him they found videos at his apartment and would be laying voyeurism charges in relation to additional victims. She did not recall if she named the two women. She did not recall if Milford had any questions but she definitely made clear there were two more victims.
28She then contacted duty counsel who spoke to Milford in private. At 9:20, he was brought back to the CIB and, at 10:10, brought into the interview room where he was interviewed by Detective Thomas.
29In cross-examination, Marks confirmed that, on arrest, she told Milford the charges related to K. The search and arrest warrants shown to Milford all related to K. In her notes, there was nothing about telling Milford about other victims or their names. She wrote she provided information regarding additional charges.
Transporting Officers
30Officers Ventura and Konkle testified about transporting Milford to the station and re-advising him of his right to counsel. Nothing in this Application turns on their evidence.
31Milford did not testify.
Submissions
Defence
32Milford submits the there were no reasonable grounds to believe evidence would be found at his apartment and the first warrant should not have been granted. If that search was warrantless and unlawful, he submits all evidence seized during the search and his confession and evidence seized under the second warrant should be excluded under s. 24(2) of the Charter.
33He further submits that, irrespective of the first warrant, his seven-hour recorded statement should be excluded based on violations of sections 10(a) and 10(b). He submits the whole of the evidence shows on a balance of probabilities that he was not advised of the two further complainants and he was therefore not advised of the reasons for his arrest and detention. He submits when a detainee’s jeopardy increases, he must be advised of that fact and re-advised of his right to counsel in order to meaningfully exercise his right to counsel and to decide whether to speak to the police. He submits there is no reliable evidence Marks told him there were other victims beyond K and I should reject her testimony that she had told him so. If the confession was obtained in breach of the Charter, the second warrant ought never have been granted as it was based largely on that confession.
34He also submits s. 10(b) was breached by the delay in facilitating his contact with counsel following his arrest. The delay to the station was reasonable but not the further two-hour delay at the station. This delay amounts to a breach even though the police did not question him before his call with counsel.
Crown
35The Crown submits there were reasonable grounds to believe evidence would be found at Milford’s apartment and the first warrant was valid. As for the confession, the Crown submits I should accept Marks’ evidence that Milford was advised of further victims and 10(a) and (b) were not breached and the second warrant was also valid. The Crown acknowledges the unexplained delay in implementing Milford’s right to counsel but submits the police did not question him until after he spoke to counsel. Any breach ought not to result in exclusion of any evidence under 24(2) of the Charter.
Analysis and Decision
The First Warrant
36I begin with the first warrant. In my view, it is valid.
37Section 487 of the Criminal Code provides that a justice may issue a warrant authorizing a search of a place and seizure of evidence where the justice is satisfied, on information under oath, that there are reasonable grounds to believe evidence will be found in the place to be searched.
38As noted by Justice Rosenberg in Hosie (1996), OCA No. 21596 quoting Chief Justice Dickson in Hunter et al. v. Southam Inc. [cite omitted], reasonable grounds to obtain a search warrant exists where “the state's interest in detecting crime prevails over the individual's interest in being left alone and a search warrant may issue where "credibly-based probability replaces suspicion".
39Justice Lacelle in R. v. Wise, 2020 ONSC 7716 reviewed the meaning of reasonable grounds and summarized the principles relating to reviewing an ITO and warrant. At paragraphs 43-45, Justice Lacelle, J. writes:
43A judicially authorized warrant is presumptively valid, lawful, and therefore, reasonable (R. v. Alizadeh, 2013 ONSC 5417 at para. 33). The Applicant bears the burden of demonstrating, on a balance of probabilities, that the ITO is insufficient: R. v. Campbell, 2011 SCC 32, [2011] 2 S.C.R. 549 at para. 14; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para. 131.
44I am mindful of the law that sets out the correct approach to reviewing the sufficiency of an ITO. In conducting this review, I am not substituting my view for that of the justice who issued the warrant. The task of the reviewing judge is to consider whether the record before the issuing justice contains sufficient credible and reliable evidence to permit the issuance of the warrant once the ITO is “trimmed of any extraneous or unconstitutionally obtained information, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO”: see R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641 at para. 99; Morelli at paras. 40-42; Campbell at para. 14; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at paras. 54 and 59.
45Information obtained unconstitutionally must be excised from the ITO, and what remains, as amplified on review, must be assessed to determine whether the warrant could have issued: Mahmood at para. 116, Araujo at para. 52. Prior unconstitutional conduct may also be relevant to the decision about the admissibility of evidence obtained by a later Charter infringement where there is a sufficient nexus between the prior infringement and the later gathering of evidence: Mahmood at para. 117; R. v. Grant, [1993] 3 S.C.R. 223 at para. 71.
And in paragraph 52
52More recently, the meaning of “reasonable grounds” was efficiently summarized in R. v. McKenzie, 2016 ONSC 245 at para. 46 (where the court was considering an ITO for a search warrant):
This standard does not require proof beyond a reasonable doubt, or even the establishment of a prima facie case. Instead, this standard is one of credibly-based probability, and requires proof of reasonable probability or reasonable belief. At the same time, it requires more than an experienced-based “hunch” or reasonable suspicion. In other words, if the inferences of criminal conduct and the recovery of evidence are reasonable on the facts disclosed in the ITO, then the [warrant] could have issued.
40With those principles in mind, I turn to the ITO in support of the first warrant. The challenge here is not whether there were reasonable grounds to believe an offence was committed but whether there were reasonable grounds to believe evidence would be found in Milford’s apartment.
41The affiant believed on reasonable grounds that Milford committed the offences by recording K. We know now those charges have been withdrawn but that is not the issue. The issue is whether that belief was reasonable and whether the belief evidence would be found at Milford’s apartment was reasonable.
42I excise from the ITO the comments from some family members that Milford acted weirdly and overcrowded K. Excising those comments, a justice could still reasonably come to the conclusion Milford recorded the videos and evidence would be found in his apartment.
43There were grounds to believe K was secretly recorded in the washroom of two homes, one of which occurred when she was in her pajamas at night. Milford, his cousin and K’s father were the only ones there both times and who slept over when K slept over and was in her pajamas. That, together with the police interviews of the father and the information in paragraph 19(h) regarding Milford’s relationship could have lead a justice to reasonably conclude there were reasonable grounds to believe Milford was the one who committed this offence though I hasten to add he did not and the police no longer believe that he did.
44In my view, accepting there were grounds to believe Milford recorded the videos, it is a reasonable inference that someone who records videos like these would possess a copy of same, either on his person or in his home. Such recordings contain sensitive material that would not be simply strewn about in coffee shops or parks. They would be kept in one’s home if not deleted. Police confirmed Milford lived in a basement apartment. Accepting for the sake of this discussion that there was a reasonable basis to believe he secretly recorded K using a recording device, there is a reasonable inference, beyond a hunch, that he would possess those files in his home, whether those files were on a SD card, computer or other device. Accordingly, the first warrant is valid.
The Video Statement and Second Search Warrant
45If the confession is excluded, it follows the second warrant could never have been granted as it was based largely on the confession.
46Milford submits his seven-hour recorded confession should be excluded as it was obtained in violations of sections 10(a) and 10(b) of the Charter. He submits:
the delay of almost three hours in facilitating his call to counsel breached his 10(b) right to consult with counsel without delay; and
the failure of the police to advise him they were also investigating him on charges relating to Esther and Patricia, or even to any further complainants violated his s.10 (a) right to be informed of the reasons for his arrest and detention and also violated s. 10(b) right to be able to meaningfully consult counsel.
Implementational Delay
47Milford was read his right to counsel in relation to K at around 6:20 in the morning and immediately said he wanted to speak to a lawyer. Officer Marks explained he could not be given privacy at his apartment but would be able to consult with counsel at the station. He was taken to the station and the booking ended around 7:10 a.m. Milford was placed in an interview room. No one placed a call to counsel for another two hours until after Officer Marks went into his room around 9:00 a.m. Milford spoke to counsel shortly after as soon as a call was made, two hours and fifty minutes after he said he wanted to speak to counsel and two hours after the booking was complete.
48Section 10(b) provides:
Everyone has the right on arrest or detention:
b. to retain and instruct counsel without delay and to be informed of that right
49Milford submits this delay in facilitating his call to counsel violated his right to consult counsel without delay.
50Justice Doherty in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, (para. 45) explained the reason for this right:
The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.
51In R. v. Noel, (2019) ONCA 860, police executed a search warrant, seized drugs and arrested Noel for drug related charges. Noel was read his right to counsel at 10:30 p.m. and said he wanted to speak to a lawyer. The police took him to the station. It was not until 12:48 a.m. that a call was made and a message left for duty counsel who never called back. Noel sought to exclude the drugs seized on the basis his right to counsel without delay was breached. The trial judge found a breach but admitted the drugs. In overturning that decision, excluding the drugs and acquitting Noel, the Court of Appeal held:
[The] trial judge found the seriousness of the breach to have been “attenuated somewhat in this case, because the police complied with their obligation to hold off questioning the arrestee until after contact with counsel was facilitated.” This passage contains two errors.
First, had the police attempted to use Mr. Noel as a source of self-incriminating evidence before he had a reasonable opportunity to speak to counsel, that would have been yet another s. 10(b) breach. The seriousness of the breach the trial judge did find cannot be attenuated by the fact that the police did not commit an additional breach of Mr. Noel’s rights”. (paras 18-19)
52The Court held that the right that was breached was the right to consult counsel without delay and,
That interest is the right is to consult counsel without delay. The loss of this right is in no way neutralized because the right to consult counsel is delayed, as opposed to denied. Nor is the impact of delayed access to counsel neutralized where an accused fails to demonstrate that the delay caused them to be unable to have a late but meaningful conversation with counsel. It would be inconsistent with solicitor-client privilege to expect a detainee to lead evidence about the quality of their solicitor-client conversation. More importantly, this inquiry misses the mark.
The right to consult counsel without delay exists because those who are arrested or detained are apt to require immediate legal advice that they cannot access without help, because of their detention: R. v. Bartle, [1994] 3 S.C.R. 173, at p. 191; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41: R. v. Rover, 2018 ONCA 745, 143 O.R. (3) 135, at para. 34.
For example, an arrest and the search of one’s home can raise urgent legal issues about the lawfulness of the arrest and the obligation to submit, as well as the validity of the search warrant and the scope of authority that the search warrant gives to the police. Such information could be useful in preventing an unjustified search, before it happens: R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1144.
Detention also raises questions of immediate importance relating to the detainee’s rights during detention, including the right against self-incrimination”: Bartle, at p. 191; R. v. T.G.H, 2014 ONCA 460, 120 O.R. (3d) 581, at para. 4. (paras 22-25)
53The delay in facilitating contact with counsel to afford Milford privacy at the station was justified. However, there is no explanation, let alone justification, for the two-hour delay at the station following the booking before the police called counsel. For the same reasons as in Noel, section 10(b) of the Charter was violated. The Crown submits Milford was not questioned until he spoke to counsel and that is true and that may be relevant to s. 24(2) but not to whether there was a breach of the implementational duty to facilitate contact with counsel without delay.
Was There a Breach of the Informational Component
54In order to meaningfully exercise the right to counsel upon detention, a detainee must be informed of the reason for their detention and must be advised when their jeopardy increases. This includes advising the detainee when the reason for the detention shifts from one offence to different offences. Knowing one’s jeopardy directly relates to meaningfully consulting with counsel and deciding whether to speak to the police.
55In R. v. Borden (1994) SCC, the police had reasonable grounds to believe Borden committed a sexual assault but also suspected him in another sexual assault. He was arrested on the one sexual assault, given his right to counsel and consulted counsel. He agreed to give a statement to the police and to provide hair and blood samples. Prior to providing those samples, the police presented Borden with a consent form which referred to their use of the samples in the police investigations, plural. The “s” at the end of the investigation was the only reference to a further sexual assault investigation. The samples were analyzed and the results used to implicate Borden in the second sexual assault. At trial, he challenged the admissibility of the samples arguing his right to counsel was violated. The Supreme Court agreed holding:
Once matters reached a point at which the officers were investigating two offences, the respondent was detained in relation to both of them, and had the right to be informed of this dual investigative intention. Therefore, I find that the right of the respondent under s. 10(a) of the Charter to be informed of the reasons for his detention was violated in this case. As this Court has previously stated, the rights in s. 10(a) and 10(b) of the Charter are linked. One of the primary purposes of requiring the police to inform a person of the reasons for his or her detention is so that person may make an informed choice whether to exercise the right to counsel, and if so, to obtain sound advice based on an understanding of the extent of his or her jeopardy.
and further,
When the nature of the police investigations expanded, the respondent should have been reinformed of his right to counsel. As was stated by McLachlin J. in R. v. Evans, [1991] 1 S.C.R. 869, at pp. 892-93:
. . . there is a duty on the police to advise the accused of his or her right to counsel a second time when new circumstances arise indicating that the accused is a suspect for a different, more serious crime than was the case at the time of the first warning.... I add that to hold otherwise leaves open the possibility of police manipulation, whereby the police -- hoping to question a suspect in a serious crime without the suspect's lawyer present -- bring in the suspect on a relatively minor offence, one for which a person may not consider it necessary to have a lawyer immediately present, in order to question him or her on the more serious crime.
I should not be taken as suggesting that the police, in the course of an exploratory investigation, must reiterate the right to counsel every time that the investigation touches on a different offence. I do, however, affirm that. . . the police must restate the accused's right to counsel when there is a fundamental and discrete change in the purpose of the investigation, one involving a different or unrelated offence or a significantly more serious offence than the one contemplated at the time of the warning [emphasis added]
56While the voyeurism charges relating to Patricia and Esther are not more serious than the offences Milford was arrested for, they are further and unrelated offences and offences which had a very different impact on Milford and his decision whether to speak to the police. In his statement, he vehemently denied any connection to the offences relating to K. He was content to speak to the police about the charges relating to K. The voyeurism charges were a different matter. He did not want to speak to the police. He wanted his lawyer present. He was not entitled to that but should have been advised he was being detained in relation to those offences when given his right to counsel.
57The question is; did they?
58It is Milford’s onus on this Charter Application, and he did not testify. However, that is not necessarily fatal. There is the evidence of Officer Marks and the video interview which shows Milford’s reaction when the subject moves from the charges relating to K to other victims.
59Officer Marks testified she went in the interview room around 9:00 a.m., two and a half hours after Milford was arrested on charges relating to K and told him of additional charges and victims. Officer Marks did not recall what she said to Milford, or whether she told him the names of the victims, or what he said in response but was sure she told him there were additional victims. She was testifying about events four and a half years earlier. Her notes do not mention other victims or their names but say she provided info regarding additional charges.
60Officer Thomas did not mention additional victims in his preliminary discussion with Milford. He did not mention other potential victims until four hours into the interview. He testified he did not tell Milford about Esther and Patricia as he wanted to see if Milford would be honest in the interview.
61Detective Thomas was aware, from both Marks and Milford, that Marks advised Milford of further charges, He testified he assumed anyone would know further charges relates to further complainants. Such an assumption is not a sound basis to proceed.
62I note that Milford told Detective Thomas at the outset of the interview that he was confused but was arrested in relation to charges involving K. Again, Detective Thomas never mentioned further victims until four hours into the statement.
63Based on Marks’ evidence recounting a brief conversation four and a half years earlier which she vaguely remembers, her notes which refer to additional charges not victims, the information Detective Thomas had that Milford was advised of additional charges, Milford’s comments that he believed the charges he was arrested for related to K, the fact that the discussion between Thomas and Milford at the outset of the interview did not mention Patricia or Esther or any other victims but only additional charges, and based on Milford’s response on the video when the subject turned to additional victims, I find it more likely than not that Milford was not made aware that he was detained and investigated in relation to anyone other than K. I rely heavily on the video and Milford’s reaction.
Conclusion on Charter Breaches
64Accordingly, there was a breach of Milford’s right to be informed the reason for his detention contrary to section 10(a) of the Charter which resulted in a breach of his ability to meaningfully consult counsel pursuant to 10(b). As already noted, there is also a breach of the implementational duty caused by the two-hour delay in putting Milford in touch with counsel at the police station.
65Given that second search warrant was based largely on the confession, that unconstitutionally obtained evidence should not have formed part of the ITO in support of the warrant. In Justice Lacelle’s words, quoted above:
Information obtained unconstitutionally must be excised from the ITO. In the absence of the confession, the warrant could not to have issued and the evidence seized under the authority of that second warrant was seized in violation of section 8 of the Charter.
Section 24(2)
66Milford’s confession will be excluded. Despite the compassion shown by Detective Thomas during the interview, the failure to advise Milford of the charges relating to Patricia and Esther which they were investigating and questioning him up while detained, and which are now before the Court, amounts to a serious failure to comply with section 10(a) of the Charter and Milford’s rights upon detention. While not malicious or even intentional, it remains a significant failure to comply with the Charter that had a significant impact on Milford’s Charter protected interests in this case. That failure undermined Milford’s right to meaningfully consult with counsel and his ability to make an informed decision whether to speak to the police. Giving a statement to the police when detained and being investigated is a significant, consequential act by a detainee. The decision must be voluntary and informed which means the detainee must be informed of the reasons for their detention in order to meaningfully consult counsel and make an informed decision whether to provide a statement to the police. I find that, had Milford been informed he was being investigated in relation to Patricia and Esther, or indeed anyone other than K, and consulted counsel, he likely would have not given a statement given his response as seen on the video. Perhaps Detective Thomas would have persuaded him otherwise, but I infer, based on the video, that he would have chosen not to give a statement if being question about other potential victims. While society’s interest in seeing cases determined on the merits favours admission, the impact on Milford’s Charter protected interests in particular weighs heavily in favour of exclusion. There is also the further breach of the implementational duty relating to facilitating Milford’s right to counsel to be factored in as well.
67Based on all those circumstances, considering the long term impact on the repute of the administration of justice of this breach, the confession will be excluded.
68Likewise, the evidence seized during the second search will also be excluded. That search was based on a warrant that itself was based on unconstitutionally obtained confession. While the police obtained a warrant and that lessens the seriousness of the Charter infringing conduct. The warrant itself was based on Charter infringing conduct. The first factor favours exclusion or, at best, is neutral.
Turning to The Impact on Milford’s Charter Protected Interests
69The evidence seized in this case was found based on Milford’s confession. He told them where they could find the evidence. The violation of Milford’s right to be secure against unreasonable search and seizure in his own home as well and his right to silence and the breach of this right to counsel, all of which lead to the entry into the home and the location of the evidence, amounts to a very significant impact on Milford’s Charter protected interests. Despite the reliable nature of the evidence found and society’s interest in cases being decided on the merits, the impact of these breaches drives this decision demands exclusion of the evidence. In the long term, it would cause damage to the repute of the administration of justice to allow unconstitutional confessions to result in search warrants into homes being granted and to then admit the evidence seized from those searches.
70To conclude, I find sections 8, 10(a) and 10(b) of the Charter were violated. Pursuant to section 24(2), I exclude Milford’s confession and all evidence seized pursuant to the second warrant.
Released: June 7, 2024 Signed: Justice H. Borenstein