WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18 .
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .
COURT OF APPEAL FOR ONTARIO
DATE: 20200107 DOCKET: C64881
Strathy C.J.O., Doherty and Tulloch JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Peter James McSweeney Appellant
Counsel: Mark C. Halfyard, for the appellant Sarah Shaikh, for the respondent
Heard: October 4, 2019
On appeal from the conviction entered by Justice Mary Teresa E. Devlin of the Ontario Court of Justice, on October 27, 2017.
Strathy C.J.O.:
[1] The appellant appeals his convictions for possession of child pornography and distribution of child pornography, contrary to ss. 163.1(4) and 163.1(3) of the Criminal Code, R.S.C. 1985, c. C-46.
[2] His trial was conducted exclusively as a Charter application. He alleged that his rights under ss. 7 and 10(b) of the Charter were infringed with respect to statements he made to police before and after his arrest and that the statements should be excluded pursuant to s. 24(2). After the trial judge found those statements to be admissible, the defence conceded that the Crown could prove the charges based on his admissions and the court was invited to make a finding of guilt.
[3] The appellant submits that the trial judge erred in finding that he was not detained when he made his first statement and in refusing to exclude both statements pursuant to s. 24(2).
[4] For the reasons that follow, I would allow the appeal.
I. BACKGROUND
A. The search
[5] As the circumstances of the appellant’s statements are central to the analysis of whether his Charter rights were breached, they require careful examination.
[6] In May 2016, Detective Constable Lockwood of the Internet Child Exploitation Unit (ICE) of Durham Regional Police received a report that certain images, identified as child pornography, had been uploaded to the social networking site, Tumblr. Further investigation determined that the uploads originated from an internet account registered to a subscriber at an address in Whitby, Ontario. The appellant’s wife was the subscriber. The address was occupied by the appellant, his wife, and their two teenage children.
[7] Police officers prepared a search warrant for the address to seize electronic storage devices, computers, and other devices capable of accessing the internet. The warrant was executed at approximately 6:03 a.m. on June 15, 2016. Nine police officers entered the house, including two from the Sexual Assault Unit; an Identification Officer; two officers from the E-Crimes Unit; three from the ICE Unit; and a patrol officer. Some of the officers were in police uniform and others wore vests identifying them as police.
[8] The appellant’s wife admitted the officers in to the home after they knocked on the door. The appellant was upstairs in the shower and the children were still in bed. The appellant came downstairs shortly after police arrived. D.C. Lockwood showed him the warrant and let him read it. He then asked the appellant whether he knew why police were at his house. The appellant denied knowing anything about child pornography.
[9] As the appellant continued to read through the warrant, D.C. Lockwood asked him whether he could direct him to a computer in the house that might have child pornography on it. The appellant replied, “I’m not saying anything until I get my thoughts together.”
[10] D.C. Lockwood acknowledged that he did not address questions of this nature to the appellant’s wife. He admitted that he did not have a “good answer” for why he did not.
[11] In response to defence counsel’s suggestions that both questions were designed to have the appellant incriminate himself, D.C. Lockwood acknowledged: “They can be very incriminating, yes.”
[12] Within about 10 minutes of the police arriving, the family had been gathered in the living room. The operational plan for the search was to secure the scene to ensure that electronic equipment was no longer transmitting, and to make areas containing electronics “off-limits” to the family. Until that was done, the occupants would not be free to move about the home for fear that they would potentially interfere with the search or destroy evidence. D.C. Lockwood explained to the family what would be taking place during the search. They were told that they were not permitted to use their electronic devices, including cell phones. A police officer was stationed in the living room while this discussion took place and she remained there with the family throughout the search. The appellant’s wife wrote down the officers’ names and badge numbers. She asked whether she could go to the kitchen to use the land line to make a call and D.C. Lockwood told her that she could.
[13] At approximately 6:29 a.m., D.C. Lockwood asked the appellant’s wife to come to the front porch of the home to give an audio statement. She agreed to do so. The officer testified that the purpose of the interview was to determine who had access to the computers in the home, but he acknowledged that most of the discussion was taken up with questions from the appellant’s wife. He described the interview as “light-hearted” and acknowledged in cross-examination that the appellant’s wife was “never a suspect”. At some point during the interview, the appellant’s wife asked whether she could get the children ready for school and the officer permitted her to tell the children to do so. The appellant remained in the living room while his wife was questioned on the porch. The interview lasted approximately 20 minutes.
[14] At about 6:53 a.m., D.C. Lockwood asked the appellant to come to the porch to give a recorded statement. The officer acknowledged that he had not cautioned the appellant up to that point. Nor did he caution the appellant before he took the statement or inform him of his right to counsel. He admitted that his failure to do so was a mistake, because he considered the appellant a suspect.
B. The first statement
[15] After D.C. Lockwood explained the background leading up to the issuance of the warrant, and that experts would be examining the family computers for images of child pornography, the interview continued:
Lockwood: So, you know, I talked with [the appellant’s wife] and we kinda debated back-and-forth who could be responsible for this.
The Appellant: Ok.
Lockwood: Is there anything you’d like to talk about?
The Appellant: I’m not sure what to say, at this point.
Lockwood: Well, Peter, I want to be, I’ll be honest, I think it was you, man .
The Appellant: Ok.
Lockwood: Because it wasn’t your kids.
The Appellant: True.
Lockwood: Ok, kids can stumble into…
The Appellant: [Inaudible]…
The Appellant: So, I don’t want to, uh, I don’t want to say anything until I talk to people that could either help me, or not help me .
Lockwood: You’re talking about a lawyer .
The Appellant: Sure. Um, but then you’re going to say, well, you’re not under arrest anyways, so [inaudible]…
Lockwood: Everything you have to say is voluntary. I’m not here to make you talk about anything you don’t want to talk about, ok?
The Appellant: Um, so what’s the easiest course of action?
Lockwood: I not [sic], I can’t even tell you what the easiest course of action is. I am here to give you a chance to tell me everything I should know.
The Appellant: Yeah, ok.
Lockwood: Um, anything you feel I should take into account, and you, if you think there’s someone in the house I should be questioning, I want you to tell me .
The Appellant: No.
Lockwood: Ok?
The Appellant: I think we’re, I think we’re, uh, we’re, we both know … that … it’s … myself .
Lockwood. Ok, so what I want to do.
The Appellant: [Inaudible] you know.
Lockwood: So what I want to do is this, ok? I appreciate that honesty.
The Appellant: Right.
Lockwood: Ok? I don’t want you to say anything else to incriminate yourself .
[Emphasis added.]
[16] Moments later, the officer said, “I do appreciate your honesty because I don’t want to drag your kids into this.”
[17] After the interview, the appellant was arrested, cautioned, informed of his right to counsel, and taken to the police station.
C. The second statement
[18] After being processed at the station, the appellant was taken to an interview room at approximately 10:11 a.m. He indicated that he wished to speak to duty counsel and arrangements were made for him to do so.
[19] After the appellant had spoken to duty counsel, the recorded interview continued at approximately 11:10 a.m. At the outset of the interview, D.C. Lockwood gave a secondary caution, followed by an awkward and inaccurate attempt to explain it:
Lockwood: … [G]otta [inaudible] you now because, I haven’t been with you the whole time. If you spoke to a police officer or anyone with authority or any special persons spoken to you in connection with this case, I want it clearly understood that I do not want it to influence you in making any statements, do you understand that?
The Appellant: Mm-hm. [Head nod, “Yes”].
Lockwood: So that means what another police officer told you, you better talk to Jeff Lockwood, uuh, they’re wrong, they’re not supposed to do that. Ok. Everything we say is voluntary, umm, sometimes we come in here and we have long chats, sometimes we come in here and just questions about where do we go from here and either way I’m fine with that, umm, I don’t play mind games and I don’t trick anybody, I’ve been around too long to do that now, and I’m just tired, ok?
[20] Throughout most of the interview, the appellant maintained that he wished to remain silent. However, at one point in the interview, D.C. Lockwood asked the appellant whether there was “any chance that anybody else in the house is involved”, to which the appellant replied, “[a]bsolutely not.”
II. REASONS ON CHARTER APPLICATION
[21] The trial judge found that both statements were admissible. She found that the appellant was not detained during the search of his home. Her reasons on the issue of detention were contained almost exclusively in para. 8 of her reasons:
In the case before me, there is no evidence that Mr. McSweeney was physically restrained. There was also no evidence of psychological detention . Not only was Mr. McSweeney free to come and go during the search, he was present when his wife asked to use the landline telephone and get the children ready for school and these requests were granted. In reaching the conclusion that Mr. McSweeney was not detained I have rejected the submission that because an officer remained in the living room with the family, Mr. McSweeney felt he was under police guard and not free to leave. There was no evidence to support this submission . Also, Mr. McSweeney never asked to leave the living room even though he saw his wife and children leave and go about their daily business. [Emphasis added.]
[22] The trial judge observed that while D.C. Lockwood admitted that he should have cautioned the appellant before interviewing him on the porch, he was not legally obliged to do so, and the existence of a caution was only one of the factors to be considered in determining whether the statement was voluntary. Moreover, despite the absence of a caution, the appellant appeared to be well-aware of his right to remain silent.
[23] The defence submitted that when the appellant made the comment about talking to “people that could either help me, or not help me” and D.C. Lockwood confirmed that he was referring to a lawyer, the officer was under a duty to inform him of his right to counsel and to facilitate his request. The trial judge rejected this submission, finding that (1) the appellant was not detained when he made the comment; (2) he did not actually ask to speak to a lawyer, but simply confirmed his wish to remain silent until he spoke to one; and (3) he did not further pursue the issue.
[24] The trial judge thus found that the appellant’s 10(b) rights were not engaged, that the police did not improperly elicit his confession during the statement on the porch, and that the statement was both Charter compliant and admissible.
[25] The trial judge also found that since the first statement was Charter-compliant and voluntary, there was no basis to find that it “tainted” the second statement.
III. ISSUES
[26] This appeal raises four issues:
- First, whether the appellant was detained at the time of his first statement, thereby triggering his s. 10(b) right to be informed of his right to retain and instruct counsel without delay;
- Second, whether the appellant’s second statement was obtained in a manner that infringed a s. 10(b) right;
- Third, if either or both statements were obtained in a manner that infringed the appellant’s Charter rights, whether they should be excluded pursuant to s. 24(2); and
- Fourth, if the s. 10(b) issue were decided in favour of the Crown, whether the appellant’s first statement should nevertheless have been excluded as being involuntary and infringing s. 7.
IV. ANALYSIS
A. Was the appellant detained at the time of the first statement?
(1) Section 10(b)
[27] Section 10(b) of the Charter provides that:
Everyone has the right on arrest or detention:
(b) to retain and instruct counsel without delay and to be informed of that right.
[28] The s. 10(b) right attaches immediately on detention, subject to concerns for officer safety. It creates the right to retain and instruct counsel without delay and the right to be informed of that right, in order to effectively exercise it. A detained person who chooses to exercise their right must be given a reasonable opportunity to do so, and police must refrain from eliciting incriminating evidence from the detained person until he or she has had a reasonable opportunity to consult with counsel: see R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 41; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 38, 42; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 20-26.
[29] In Suberu, at para. 40, the court explained:
[T]he purpose of s. 10(b) is to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion, which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.
[30] An individual’s s. 10(b) right is thus intimately connected to their control over their own person. While an individual confronted by the authority of the state ordinarily has the option to simply walk away, this choice can be removed by physical or psychological compulsion, resulting in detention. Once detained, however, “the individual’s choice whether to speak to the authorities remains, and is protected by the s. 10 informational requirements and the s. 7 right to silence”: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 19-23.
[31] The Supreme Court of Canada expanded on this interaction between ss. 7, 9, and 10 of the Charter, at para. 22 of Grant:
“Detention” also identifies the point at which rights subsidiary to detention, such as the right to counsel, are triggered. These rights are engaged by the vulnerable position of the person who has been taken into the effective control of the state authorities. They are principally concerned with addressing the imbalance of power between the state and the person under its control. More specifically, they are designed to ensure that the person whose liberty has been curtailed retains an informed and effective choice whether to speak to state authorities, consistent with the overarching principle against self-incrimination. They also ensure that the person who is under the control of the state be afforded the opportunity to seek legal advice in order to assist in regaining his or her liberty. [Emphasis in original.]
[32] The key task, therefore, in determining whether an individual’s s. 10(b) rights have been triggered, is to identify whether a detention has occurred.
[33] Detention can by physical or psychological. Psychological detention occurs where a person has a legal obligation to comply with a police direction, or where “the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand”: Grant, at paras. 30-31. In determining whether someone has been psychologically detained, the inquiry is an objective one, having regard to how a reasonable person would perceive the state conduct in the circumstances. An objective inquiry recognizes the need for police themselves to appreciate when detention occurs, so they can fulfill their Charter obligations to detained persons: Grant, at paras. 31-32; Suberu, at para. 22.
[34] The Supreme Court provided a helpful summary of the analysis of detention, at para. 44 of Grant:
In summary, we conclude as follows:
Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:
(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.
(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
[35] I accept the appellant’s submission that the trial judge erred in failing to apply the objective test mandated by Grant and Suberu, namely whether a reasonable person in the appellant’s circumstances would conclude by reason of the state conduct that he or she had no choice but to comply. While the trial judge referred to Grant and Suberu, her analysis reflects the error this court identified in R. v. Wong, 2015 ONCA 657, 127 O.R. (3d) 321: she treated the exercise largely as a subjective inquiry, asking whether there was evidence of the appellant’s state of mind. This was an error of law and this court is therefore required to apply the correct analysis.
(2) Detention in the context of the execution of a search warrant in a home
[36] This case was argued, in this court and in the court below, as one in which the appellant was detained, not as a result of a legal obligation to comply with a state request or demand, but as a case where a reasonable person would conclude that they had to comply. The Grant factors must therefore be applied.
[37] Before doing so, however, it is necessary to consider the fact that the encounter occurred in the exercise of the state’s authority through the lawful execution of a search warrant.
[38] There is no question that during the execution of a search warrant police are entitled to segregate the occupants of the premises to ensure officer safety, to prevent the loss or destruction of evidence, and to maintain the integrity of the search. They may give appropriate directions to that end: see R. v. Connor (2009), 202 C.R.R. (2d) 43 (Ont. S.C.), at para. 82; Ahmed et al. v. McCaskill et al., 2015 MBQB 68, 317 Man. R. (2d) 42, at para. 70; Water v. Toronto (Police Services Board), 2016 ONSC 7824.
[39] However, there are limits to these powers. I accept as accurate the observation in R. v Owen, 2017 ONCJ 731, 397 C.R.R. (2d) 63, at para. 33:
However, once the police have “cleared” the house and ensured that they have accounted for all the occupants, they must have a basis for any continued detention of any occupant(s). They are not permitted to simply keep the occupants in a room, incommunicado, while they go about their search of the house. Once police have ensured their safety, they are not justified in holding the occupants in a room unless the occupants are being arrested or otherwise be[ing] lawfully detained. Provided the occupants are not interfering with the search, they are permitted to stay in and move about the residence; or, they may leave.
[40] Owen itself bears some similarity to this case.
[41] Police arrived at the accused’s home just after 7:00 am. They knocked on the door and were greeted by his father. The police informed the father that they had a search warrant regarding child pornography and asked him to move into the living room. The accused was upstairs in his bedroom. The police brought him down to the living room. The accused and his father were seated in the living room for several minutes. An officer stayed with them. The police then called the accused into the kitchen for questioning. During the interview, the accused made several inculpatory statements and was arrested shortly afterward: at paras. 1-2, 5-8.
[42] The accused argued that he was psychologically detained when he was escorted from his room and “sequestered” in the living room with his father and then directed to go into the kitchen to speak to an officer: at paras. 30-31. The trial judge agreed, holding that the accused “was subject to a psychological detention from the time the police escorted him downstairs and had him sit in the living room”: at para. 32. The judge held that any reasonable person in the circumstances of the accused would conclude that they were detained: at para. 35. Further, even if there was no detention while the accused was placed in the living room, there was a detention when he was asked to speak with an officer in the kitchen: at para. 36.
[43] Other cases have followed a similar approach: R. v. Munkoh, 2010 ONSC 2253, 210 C.R.R. (2d) 87; Water; R. v. S.L., 2019 ONCJ 101.
[44] However, where police have acted solely to ensure the integrity of the search, where the interference with liberty was modest, and where any questioning was not focused on the person’s involvement in a crime, courts have found no detention: Munkoh, at paras. 31-40; Water, at paras. 72-83; R. v. S.L., at paras. 72-84.
(3) Application to this case
[45] The first consideration under the Grant test is the circumstances giving rise to the encounter. As outlined above, in the context of the execution of the search warrant, a key consideration is whether the police were acting solely to ensure the integrity of the search, or whether they were engaged in a focused investigation. In this case, the appellant was clearly singled out for focused investigation. From the very outset of the encounter, D.C. Lockwood posed questions that were accusatory and invited self-incrimination. In substance, his questions amounted to: “Do you know why we are here?” and “can you tell us the location of computers in this house with child pornography on them?” Those questions would cause a reasonable person in the position of the appellant to conclude that they were a suspect, perhaps the prime suspect, in a police investigation into child pornography in their own home. As was the case in Owen, the police were not merely executing the search warrant, they were targeting and questioning a suspect.
[46] The segregation of the family in one area of the home, without the use of phones and electronic devices, is also a circumstance to be taken into account. While the police were justified in clearing the house to ensure the integrity of the search, the prolonged sequestering of the family in the living room was unnecessary for that purpose. There was no suggestion that they attempted to interfere with the search or were anything other than co-operative. The fact that the appellant’s wife found it necessary to ask for permission to use the land line in the kitchen, speaks to a perception that she was not free to do so without permission. The same is true of her request to allow her children to get ready for school.
[47] While his wife was being interviewed outside on the porch, the appellant was left sitting in the living room with his children, with a police officer continuing to stand guard over them. His isolation and separation from his wife (whom the police had treated more deferentially than he) would add to the perception of a reasonable person that an investigation was taking place and that they were a suspect.
[48] D.C. Lockwood then asked the appellant to come out on the porch to speak to him and give a recorded statement. This would enhance the perception of a reasonable person, in the circumstances, that they were the focus of the investigation.
[49] The second factor under Grant is the nature of the police conduct, including the language used, the use of physical contact, the place where the interaction occurred, the presence of others, and the duration of the encounter.
[50] Physical contact does not feature in the detention analysis in this case. However, as already identified, the language used by D.C. Lockwood after police entered the house was targeted and accusatory.
[51] It is noteworthy that the warrant was executed at 6:03 a.m. when most people are just waking up and when working people with children are getting ready for their busy day. This element takes on particular flavour when one considers the presence of some nine police officers executing the warrant in what appears to have been a typical, middle-class home. This would cause a reasonable person to feel the weight of the state in their home, the most private of places.
[52] The encounter itself, up to the time when the appellant was invited to give a statement on the porch, lasted approximately 40 minutes. It is not clear when the police had secured the areas they needed to secure, but there is no evidence of why it was necessary for the appellant to remain in the living room for that length of time. Nor is there evidence as to why police did not tell the appellant that he could leave or get ready for work, if he wished to do so.
[53] The final Grant factor to be considered is the particular characteristics of the individual where relevant, including age, physical stature, minority status, and level of sophistication.
[54] There are no characteristics of the appellant that are particularly germane to this inquiry. The appellant appears to have been a mature, educated, and articulate adult with some appreciation of his rights in the face of the officer’s inquiries.
(4) Conclusion on detention and s. 10(b)
[55] I conclude that the appellant was detained, at the very latest, at approximately 6:53 a.m. when D.C. Lockwood asked him to come to the porch to give a statement. Given all that had taken place during the preceding 50 minutes, including the focused and accusatory statements made to the appellant, the lengthy period of sequestration, under guard, and the officer’s request to come to another area of the home to make a recorded statement, a reasonable person in the appellant’s situation would conclude that they were obliged to comply. At no time before his arrest was the appellant informed of his right to counsel, even though D.C. Lockwood knew that he was required to do so. The appellant’s s. 10(b) right was infringed.
[56] I now turn to the question of whether the appellant’s second statement should also be excluded as a result of having been tainted by the Charter breach in relation to the first.
B. Was the appellant’s second statement, made after he had spoken to counsel and been cautioned, obtained in a manner that infringed a Charter right?
[57] As explained by the Supreme Court in R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at paras. 19-21, in order to determine whether a subsequent statement by an accused was obtained in a manner that infringed a Charter right, a court must assess whether the impugned statement is part of the same transaction or course of conduct as the earlier breach:
In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct: [R. v. Strachan, [1988] 2 S.C.R. 980, at p. 1005]. The required connection between the breach and the subsequent statement may be “temporal, contextual, causal or a combination of the three”: R. v. Plaha (2004), 189 O.A.C. 376, at para. 45. A connection that is merely “remote” or “tenuous” will not suffice: R. v. Goldhart, [1996] 2 S.C.R. 463, at para. 40; Plaha, at para. 45.
[58] In undertaking this analysis, the court must be alive to whether the police were able to “sever” the connection and establish a “fresh start”: Wittwer, at paras. 2-3; R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, at para. 68; and R. v. Hamilton, 2017 ONCA 179, 347 C.C.C. (3d) 19, at para. 54.
[59] The trial judge in this case did not apply this analysis, as she found there was no Charter breach in relation to the first statement. She also found that the two statements were unconnected to each other, as the second statement was made after a “fresh start” as described in Manchulenko. She accordingly held that the second statement was voluntary.
[60] Having found a Charter breach in relation to the first statement, I would also find that there was a temporal, contextual, and causal nexus between the first and the second statements.
[61] The statements were relatively close in time to each other. About four hours elapsed between the end of the first statement in the appellant’s home and the beginning of the second statement at the police station. In the meantime, the appellant went through what must have been a head-spinning and stressful process of arrest, transportation to the police station, parading and processing at the station, waiting, and consulting with duty counsel. In the context of this case, the passage of time was not sufficient to sever the link between the two statements.
[62] The statements were also linked contextually. At the end of the first statement, D.C. Lockwood told the appellant that the questioning would continue at the station: “[W]hen I come back to the station, I’d like to sit down and chat with you, but that, talk to your lawyer first, ok?” While the appellant did speak to counsel, D.C. Lockwood was the only person present at the second interview. The officer’s presence served to connect the two statements.
[63] This connection was confirmed by the officer’s own words. At the beginning of the recorded statement at the second interview, D.C. Lockwood stated, in the appellant’s presence: “Detective Constable Lockwood interviewing Peter McSweeney, a continuation of an earlier statement which was cut short because the accused wished to talk to duty counsel (emphasis added).”
[64] The statements were also contextually linked by virtue of the officer's conduct. During the second interview, D.C. Lockwood continued to employ the same investigative techniques he had used in the first interview. One technique was to gain the appellant’s trust by being considerate of his well-being. For example, after taking the first statement, the officer told the appellant that he would not arrest him in front of his children, suggested he put on warm clothing because the cells were cold, and made sure he had his blood pressure pills with him: “I like to be prepared for the worst and hope for the best,” he said to the appellant. He re-assured the appellant by telling him that there were “a lot of reasons” why people view child pornography and that it did not make them pedophiles.
[65] This concern for the appellant continued at the police station, where D.C. Lockwood asked whether he had been treated well and whether he had any injuries: “None from the handcuffs or anything? You were cuffed up front so it’s a lot more comfortable than sitting on those things trust me.” He also asked whether anyone had called the appellant’s workplace to let them know that he would not be in. The appellant said he had not called and D.C. Lockwood said, “Ok… we’ll just let that sit for a while then. ‘Cause I’m, I’m not gonna phone them and get them suspicious. Uhh, not saying they won’t find out, it just, it won’t be from me.”
[66] While the officer’s solicitousness may have been genuine, and while he may have had legitimate reasons to ask about whether the appellant had received injuries at the jail, the officer’s statements had the effect of re-establishing the friendly and accommodating atmosphere he had created after obtaining the first statement.
[67] There was, however, another more calculated aspect of the questioning that was common to both statements. In both interviews, the officer used the implicit threat that if the appellant was not forthright, he would have to interview his children.
[68] During the first statement, a few moments before the appellant blurted out, “we both know… that… it’s… myself”, the officer said, “I’ll be honest. I think it was you, man. … because it wasn’t your kids.” The appellant replied, “[t]rue.” Moments later, the officer said “Ok, I do appreciate your honesty because I don’t want to drag your kids into this.”
[69] The clear inference was, “If you don’t cooperate with me, I am going to have to interview your kids and tell them about the child pornography we found on the computers in your home.”
[70] For most of the second interview, after he had spoken to duty counsel, the appellant was uncommunicative. His only inculpatory statement was made after D.C. Lockwood again asked whether his family might have been involved:
Lockwood: “[I]s there, is there any chance that anybody else in the house is involved?”
The Appellant: “Absolutely not.”
[71] Officer Lockwood already had a confession from the appellant. He had never suspected the appellant’s wife and the appellant had said that it was him, not his children. The officer was plainly using the appellant’s desire to shield his children from the details of the offence to extract more information from him. In this sense, there was also a causal nexus between the first and the second statements.
[72] In my view, informing the appellant of his rights and providing access to duty counsel did not serve to remove the taint of the initial Charter infringement or to sever the nexus between the two statements. The presence of the officer who was responsible for that breach, and who had taken the first statement a few hours earlier, the reference to the earlier statement and the use of the same interview techniques created a situation in which both interviews can reasonably be described as “all part of the same interrogation process.”: R. v. Lewis, 2007 ONCA 349, 86 O.R. (3d) 46, at para. 32.
[73] For these reasons, the second statement was “obtained in a manner” that infringed the appellant’s Charter rights.
C. Should the evidence be excluded under s. 24(2)?
[74] Section 24(2) of the Charter provides:
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms 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.
[75] As matters transpired in the court below, it was not necessary for the trial judge to conduct a s. 24(2) analysis, because she found there was no violation of the appellant’s Charter rights. As I have found there was such a violation, it is necessary to do that analysis: see R. v. Caputo (1997), 114 C.C.C. (3d) 1 (Ont. C.A.), at p. 13.
[76] The s. 24(2) analysis looks at the effect of admitting the evidence on public confidence in the administration of justice in the long term, having regard to: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on the merits: Grant, at para. 71; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 2.
[77] I turn now to these considerations.
(1) The seriousness of the Charter-infringing state conduct
[78] This stage of analysis requires that I situate the police conduct on a “continuum of misconduct”: R. v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4, at para. 23; R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 761, at para. 31. In Grant, at para. 74, the Supreme Court spoke of a spectrum between inadvertent or minor Charter violations, on the one hand, and violations involving the wilful or reckless disregard for Charter rights, on the other. The more serious the infringement by the state authorities, the more likely it is to “have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute”: at para. 74.
[79] In my view, the Charter infringement in this case was serious and amounts to wilful disregard of the appellant’s Charter rights. The officer acknowledged that the appellant was a suspect from the outset and that he should have cautioned him. Instead, he pursued a tactical and focused interrogation. He ignored the appellant’s statement that he did not want to say anything and that he wanted to “talk to people that could either help [him], or not help [him].” The officer clearly understood that the appellant wanted to speak to a lawyer. As Gillese J.A. observed in Hamilton, at para. 71, “[t]he police obligation to ‘hold off’ questioning detainees who have requested a consultation with counsel is firmly established law of long-standing.” However, instead of holding off and allowing the appellant an opportunity to consult counsel, the officer persisted in his questioning. This wilful disregard of the appellant’s rights weighs heavily towards exclusion of the fruits of the interrogation.
(2) The impact of the breach on the Charter-protected interests of the accused
[80] The impact of the breach was serious. The appellant was detained and “at the mercy of state actors”: R. v. Nguyen, 2008 ONCA 49, 231 C.C.C. (3d) 541, at para. 21. Section 10(b) protects the detainee’s right to make an informed choice about whether to cooperate with the investigation by giving a statement: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at paras. 24-28. The actions of the police deprived him of that right.
(3) Society’s interest in the adjudication on the merits
[81] This inquiry asks whether the truth-seeking function of the criminal trial process is better served by the admission of the evidence or by its exclusion: Grant, at paras. 79-84. It considers both the negative effect of the admission of the evidence on the repute of the administration of justice, and the impact of a failure to admit the evidence. In McGuffie, this court observed, at para. 62, that the pull toward the inclusion of the evidence is particularly strong where the evidence is reliable and critical to the Crown’s case. On the other hand, where the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: McGuffie, at para. 63.
[82] In this case, the evidence is reliable, but it is not critical to the Crown’s case. The Crown has circumstantial evidence regarding the possession and use of the computers. This may be enough to proceed with the charges: see e.g., R. v. Taylor, 2019 ONCJ 110; R. v. Erskine, 2017 ONSC 6782; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.
(4) Conclusion on s. 24(2)
[83] The state conduct was willful and in disregard of the appellant’s asserted Charter rights. It had a serious impact on those rights and on his attempt to exercise them. While society has a strong interest in the adjudication of the charges on their merits, the exclusion of the evidence will not preclude the Crown from proceeding with the charges, if it chooses to do so, relying on forensic evidence obtained from the computers themselves. This is not a case in which the Crown’s case will be gutted by the exclusion of the improperly-obtained evidence. It may be more challenging to prove, but it has not been suggested that it would be impossible.
[84] For these reasons, the appellant’s statements should be excluded pursuant to s. 24(2).
D. Voluntariness
[85] As I have concluded that both statements resulted from breaches of s. 10(b) and should be excluded pursuant to s. 24(2), it is unnecessary to consider the trial judge’s conclusions on voluntariness.
V. CONCLUSION
[86] For these reasons, I would allow the appeal, quash the appellant’s convictions, and order a new trial.
Released: “GS” JAN 07 2020
“G.R. Strathy C.J.O.”
“I agree. Doherty J.A.”
“I agree. M. Tulloch J.A.”
