Court File and Parties

COURT FILE NO.: CR-21-0174 (London) DATE: 20240418

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Nathaniel Veltman Accused

Counsel: Jennifer Moser, Fraser Ball, Counsel for the Provincial Crown Sarah Shaikh and Kim Johnson, Counsel for the Federal Crown Christopher Hicks and Peter Ketcheson, Counsel for the Accused

Heard: as pre-trial motions in 2022 and 2023

Ruling on statements

Pomerance R.S.J.:

[1] The accused was charged with four counts of first degree murder and one count of attempted murder. The charges arose from an incident in which the accused drove his vehicle into a Muslim family as they were walking down the street together in London, Ontario. The sole survivor of the incident was a young boy.

[2] The Crown alleged two alternate bases of liability for first degree murder: planning and deliberation pursuant to s. 231(2) of the Criminal Code, R.S.C. 1985, c. C-46; and terrorist activity pursuant to s. 231(6.01).

[3] The accused’s trial began on September 5, 2023, and ran for ten weeks. A number of issues were canvassed in pre-trial motions, including the admissibility of the accused’s statements to police. Prior to trial, I provided a brief ruling setting out, in concise form, my decision and the reasons in support of it. I advised at the time that I reserved the right to supplement that decision with fuller reasons. These are those reasons.

[4] The statements in question consisted of those made by the accused to a 911 call-taker; spontaneous statements made to the police officer who arrested him (and others in the vicinity of the arrest); and two videotaped statements to a police detective who interviewed him after his arrest. The Crown did not seek to introduce statements elicited by the police before the accused had opportunity to call a lawyer. (At trial, the Crown did not ultimately lead evidence of the spontaneous statements made by the accused to the arresting officer.)

[5] The defence sought to exclude the statements, arguing that the Crown failed to prove the voluntariness of the utterances. It was further argued that the accused’s rights under s. 10(b) of the Charter of Rights and Freedoms were infringed and that all utterances should be excluded under s. 24(2) of the Charter.

[6] The Crown resisted the application. The Crown called extensive evidence consisting of live testimony and video surveillance, including video footage of much of the accused’s time in detention. The Crown argued that voluntariness is amply proved on the criminal standard of proof, and that, in the volatile circumstances of the case, the police did not violate s. 10(b) of the Charter. The Crown said that, if there were breaches early on, they were “cured” by the fresh start offered by the detective at the police station. In the alternative, it is argued that any evidence obtained in a manner that violated the Charter should be admitted under s. 24(2).

[7] At the time of the voir dire, the defence had yet to offer any admissions. At the trial, the defence agreed to various facts. The agreed facts do not impact on the admissibility of the statements and therefore will not be chronicled in this decision. Similarly, some of the witnesses who testified on the voir dire testified at trial before the jury. This decision will consider only the evidence heard on the voir dire.

Contextual Considerations

[8] Context is important. The events of June 6, 2021, presented extraordinary and unprecedented challenges for law enforcement authorities. Early investigation revealed that a significant and tragic event had occurred, but it was some time before a full picture could be pieced together. Both the scene of the event and the scene of the arrest were chaotic, dynamic and unpredictable. At about 8:41 p.m., the first calls began coming in to the 911 call centre, reporting an accident at the intersection of Hyde Park Road and South Carriage Road. It did not take long for the volume of calls to increase exponentially. The police investigation unfolded rapidly, calling for quick and decisive action by officers at both scenes. The events of that day consumed virtually all of the London Police Services (“LPS”) resources. Those events raised genuine concern about public and officer safety.

[9] Hindsight is not the lens through which to view police conduct. The calm of the courtroom does not and cannot replicate the pressures that bear on police in real time. Faced with uncertain exigencies, police must take action without time for leisurely reflection. We now know – looking through the rear-view mirror – that, once the accused was arrested, there was no continuing danger presented to the community or the police. The police did not have that vantage point. They could not predict the end of the story while they were still in the middle of it.

[10] The arresting officer, Police Constable Sarah Cochrane – first on the scene at the location of the arrest – had been with LPS a mere two years when she encountered and arrested the accused. Upon seeing the black pickup truck in the Cherryhill Mall parking lot, she took the initiative to enter the area, where she first arrested the accused. It is fair to say that this interaction would have been challenging for seasoned veteran officers, let alone an officer with just a few years experience. For the most part, the arresting officer discharged her duties in admirable fashion. However, there were some missteps that resulted in violations of s. 10(b) of the Charter.

[11] These violations must be assessed according to law. The chaos of the situation, and the gravity of the charges, do not excuse Charter breaches. To the contrary, there is a strong public interest in ensuring that the rights of all persons are respected. Indeed, the more serious the circumstances, the more imperative it is that constitutional rules be obeyed. Violations of s. 10(b) of the Charter are serious violations. There is however a practical reality underlying the events of this case, namely, that police were confronted with, as one officer put it: “a day where nothing was normal”. This did not suspend the obligation to act in accordance with the law. It does, however, help to explain some of the transgressions.

[12] Another contextual factor concerns the apparent attitude and intentions of the accused. The evidence supports the inference that the accused had an enthusiastic desire to speak to police, both at the scene and later at the police station. The accused offered spontaneous utterances at the scene of arrest, and while in the back of PC Cochrane’s cruiser. He explained to Detective Bourdeau that he wanted the world to know why he did what he did. He wanted to inspire others to act in a similar fashion. It is open to inference that the accused’s plan to commit the offence included a plan to speak about his motives in the aftermath. This desire to speak is relevant to the s. 24(2) analysis, and the question of whether the accused would have spoken even absent breaches of his Charter rights.

[13] At this point in time, the trial has concluded. At trial, the defence sought to argue that the accused’s statements to the police are not reliable and that they should be accorded little weight by the jury. My ruling on the voir dire was of course not binding on the jury. The defence may point the jury to circumstances of detention and argue that they affect the reliability of the statement. This is so even if the trial judge has rejected such arguments and has ruled the statements to be voluntary.

[14] The final contextual point is this. While issues of voluntariness and s. 10(b) dovetail to some extent, and often engage the same evidence, they remain distinct and discrete legal issues. The Crown bears the onus to prove voluntariness beyond a reasonable doubt. The defence bears the onus to prove a Charter breach on a balance of probabilities. I have instructed myself accordingly when addressing and resolving these related but distinct issues.

The Evidence

The taxi driver

[15] Azeddin Jahanghiri was working as a taxi driver on June 6, 2021. His shift began later than usual after 8:00 p.m., when he went to get coffee at the Cherryhill Mall in London. At around 8:45 p.m., he saw a black truck in the mirror coming towards him. The man in the truck, subsequently identified as the accused, asked him to call the police. Mr. Jahanghiri asked what was going on, and the accused said, “just shut up, call the cop”. Upon refreshing his memory from his statement, Mr. Jahanghiri testified that the accused also said, “I just hit someone and I killed someone”. Mr. Jahanghiri asked the accused yet again what was going on, and the accused said again, “just shut up, just call the cop”.

[16] At that point Mr. Jahanghiri could see that the front of the truck was damaged and smoke was coming from the engine. Mr. Jahanghiri called 911. The call-taker asked his name and he said, “I’m cab driver, somebody’s asking me to call the cop”. During this time, the accused was saying “send the cops, send the cops” to the call-taker. Mr. Jahanghiri told the call-taker that someone told him to call. She asked what his name is, prompting Mr. Jahanghiri to place his phone on speaker mode. The call-taker asked for the licence plate number. Mr. Jahanghiri went behind the truck and gave the number to the call-taker.

[17] It was at that point that Mr. Jahanghiri saw police cruisers coming towards the mall parking lot. He took his phone and ran towards Oxford Street to flag them down. When he came back towards his taxi, one of the police vehicles turned into the parking lot. At that time the accused asked Mr. Jahanghiri to make a video.

[18] When the police arrived, the accused turned to Mr. Jahanghiri and said, “I told you should make a video”. When they arrested him and he was passing by Mr. Jahanghiri he said again, “I told you, make a video”.

[19] According to Mr. Jahanghiri the man was back in his truck in the driver’s seat. As the police went toward the truck, the accused came out and went down onto his knees with his hands up. The police then handcuffed him.

[20] Mr. Jahanghiri saw that he was wearing a helmet and some kind of bulletproof vest. When the police removed the vest, he saw that the accused was wearing a white shirt with a cross sign on it. Mr. Jahanghiri testified that the accused was, “really calm and kind of laughing”.

[21] Mr. Jahanghiri saw that the front of the truck was damaged and body tissue and blood was visible near the front headlight and by the side fender.

The 911 call

[22] Jennifer Carrothers was the 911 call-taker working on June 6, 2021, when the call from Mr. Jahanghiri came in.

[23] At around 8:41 p.m., Ms. Carrothers noticed an alert for a code one priority call. A co-worker had input information about an accident at Hyde Park Road and South Carriage Road. Shortly after that, all of the 911 lines lit up. Ms. Carrothers took a few calls from civilians who were close to the scene. The call centre became chaotic with phone lines ringing and dispatchers relaying information over the air.

[24] At approximately 8:45 p.m., Ms. Carrothers received a call from a male individual who said he was a taxi driver. He said that he was at Cherryhill Mall and that there was a black truck there and he was with someone who claimed that he hit someone. By the time this call came in, Ms. Carrothers knew that there had been a collision, that people were lying on the roadway and that there was possibly a child involved.

[25] In cross-examination, defence counsel repeatedly suggested that she was asking questions “of an investigative nature”. Her response was that these were just routine questions that she was trained to ask on the job. She testified, “I’m not really investigating the incident myself. That is done by police officers.” Her job was to collect information so that officers arriving at the scene would have a better understanding of the situation.

[26] Ms. Carrothers asked what kind truck it was, and just to get more details, she asked for a name because she wanted to identify the person who was driving the truck. At some point after receiving the accused’s date of birth she asked if he was injured. She asked this question so that she could determine whether EMS was required. She asked if he had been drinking or had consumed drugs. This was a standard question asked in any motor vehicle accident to assess mental state and the possibility of impairment.

[27] The call ended when officers showed up on the scene.

Staff Sergeant takes charge

[28] Joshua Silcox is a staff sergeant with LPS. At 8:42 p.m., a call came in that a motor vehicle collision had occurred with pedestrians struck at Hyde Park Road and South Carriage Road. It was a code one call – lights and sirens, priority response. SSgt. Silcox travelled from the eastern part of the city down Oxford Street toward the west. Updates were coming in over the radio regarding the description of the truck and the suspect name and eventually information that the suspect had called in from Cherryhill Mall.

[29] SSgt. Silcox’s priority was responding to the collision location. He ordered cars closest to the scene to attend that area as a priority for preservation of life. Information came in that the vehicle may be at Cherryhill Mall. SSgt. Silcox was crossing through the downtown part of the city and would have passed by the mall, but made a decision to keep going because one of his sergeants – Sergeant Krissy Cochrane – was going to the mall while he continued to the scene. He felt it more important that he be at the collision scene.

[30] At this time, information was pouring in, with constant updates coming from officers and 911 dispatchers. It was SSgt. Silcox’s job to assess priorities. He determined that it was most important for him to manage resources at the collision scene.

[31] He arrived at the scene at about 8:45 p.m. It was chaotic, with several civilians milling about. Five civilian victims were located along the side of the roadway. Tire marks led to where the five victims were situated on the ground. A young boy was being tended to by emergency personnel. An elderly female was deceased and had significant trauma to her body. A 15-year-old girl was in the grass with CPR being performed on her. Just past her location, an adult male and female were also receiving CPR. The young boy was conscious and was screaming and crying. He was apparently in a lot of pain.

[32] Given the gravity of the situation, SSgt. Silcox ordered all available police cruisers in the city to attend the location to assist with management of the crime scene and victim care. He also called in all duty officers to assist where possible. Officers were needed to identify witnesses and to set up a containment area. Sergeants working for the emergency response unit were put in emergency control of the city with instructions to hold all calls unless they were priority calls. In effect, all police resources were directed to the scene of the collision. SSgt. Silcox testified that he had never had to do that before. According to him, it was like “nothing I’d ever seen before”, and it required as many resources as possible to respond to it.

The Arrest

Police Constable Sarah Cochrane arrives

[33] PC Cochrane was hired by the LPS in April of 2019. On June 6, 2021, PC Cochrane had just retrieved her police vehicle when, just before 8:42 p.m., she heard a dispatch requesting cars to respond to a collision on Hyde Park Road. Dispatch reported that several people had been struck around the roadway and that the vehicle in question was a black Dodge Ram.

[34] She was using lights and sirens and on her way to the scene when she heard over the radio that the driver was calling into 911 and reporting that he was at the Cherryhill Mall. She recalled hearing that the driver indicated that it had possibly been done on purpose. PC Cochrane made her way to the mall and as she was approaching towards the parking lot she could see a black Dodge Ram and a taxi. She pulled into the parking lot and saw two individuals. She was the first officer on the scene of the arrest.

[35] The driver’s side door to the Dodge Ram was open and a male was standing directly outside the car. The taxi driver was standing outside of the taxi, holding a cell phone and speaking on the phone. PC Cochrane was the first police cruiser to arrive at the mall.

[36] When she pulled into the mall, she believed that she had grounds to arrest the driver for dangerous operation of a motor vehicle, based on the fact that several people had been injured in a collision.

The approach

[37] As PC Cochrane pulled into the parking lot and began approaching the Dodge Ram, the accused got down onto his knees and put his hands above his head. She could see that he was wearing a leather jacket with something underneath it, and a “camo helmet” that was fastened at the bottom of his chin. He was wearing tactical style pants with many pockets along the side.

[38] She parked her car and exited her vehicle. When she saw the accused on the ground she was “very concerned”. As she put it:

I was very concerned, I didn’t know why he was doing that, it’s a position of disadvantage that police use when they’re arresting people who are highly armed or dangerous, and so I was – at this point in time, given the fact that he had possibly on purpose struck these individuals and then now had stopped and was calling in to turn himself in and then now is in a position of disadvantage presenting himself to me, I was concerned about my own safety, about the safety of other civilians in the area and about his safety.

[39] She was also concerned about the potential presence of weapons. She explained:

I didn’t know if he had any weapons hidden or concealed on his person that he could – obviously when people have weapons concealed, they’re very accessible to them because they know where they’re concealed, and we do not. So I was concerned that he had a weapon concealed, that he could hurt himself, myself or a civilian nearby with. I was also concerned that I could see something underneath of his jacket, but I could not tell what it was. So I didn’t know if it was, I didn’t know if it was a bomb underneath of his jacket.

[40] PC Cochrane approached the accused and told him to get on his stomach. He was cooperative and compliant. She took control of his right arm, brought it to his back and began the arrest. At this time, she was still the only officer on scene.

[41] Another officer, PC Chamberlain, arrived at the mall parking lot, but only after PC Cochrane had physical control of the accused on the ground. PC Chamberlain assisted her by taking control of the accused’s left hand, bringing it to his lower back and allowing PC Cochrane to secure the left hand with a handcuff. While the accused was on the ground, PC Cochrane arrested the accused for dangerous operation of a motor vehicle. The officers searched the accused for any weapons. PC Cochrane rotated him onto his right hip so that his left hip was up in the air. She located an empty knife sheath on his left hip. She continued the search but found no other weapons on his person. The accused was compliant.

[42] When PC Cochrane unzipped the accused’s jacket, she saw a bulletproof vest. That caused her concern because it suggested that the accused was anticipating needing protection from bullets. She unfastened the Velcro on the bottom of the vest to determine whether there were any weapons disguised or hidden underneath the vest. She did not discover any weapons. She removed the bulletproof vest while the accused was handcuffed to the rear of the vehicle. She also removed the helmet. She saw that he was wearing a white t-shirt with a black spray-painted “cross” or “t” on the front and back. She removed the helmet to make sure nothing was hidden in it.

[43] PC Cochrane asked the accused why he was wearing a bulletproof vest. He responded by saying that it was not how he wanted his plan to go, but he had changed his mind. When asked why she asked this question, she offered the following evidence:

I again – this is an extraordinary situation that I’ve never run into before, I’ve never arrested someone who was wearing a bulletproof vest and I was very concerned about the reasons why. I did not know if there were additional threats that were anticipated coming to the area, if he had reason to be concerned, if he still had something disguised on him. It’s still – the question was asked for his safety, my safety and safety of the public, I wanted to ensure that there were no additional threats on his…

If he had a weapon concealed on his person which could be accessible to him, again as we’ve mentioned, but maybe perhaps that I had not located or was very well concealed. I was concerned that maybe there were more individuals involved in this incident, that this was – maybe perhaps they knew where he was coming to after the incident. If, if it in fact was on purpose and he had planned before to come to this specific location, I did not know if he was – if he had other people working alongside him or supporting him who, who were planning to ambush or hurt other police officers. The – it’s an extremely dynamic situation that I didn’t – again, I’ve never been in this type of situation before, and I didn’t know if we needed to be fearful for our safety or anticipate a different threat.

[44] By this time other officers had arrived at the scene, including Sergeant Krissy Cochrane.

[45] PC Cochrane asked PC Nicole Thyhurst to watch the accused while PC Cochrane briefed Sgt. Cochrane.

[46] At around the same time, SSgt. Silcox was arriving at the scene of the collision, where the bodies of the victims lay scattered along the road. The young boy who survived was being tended to by emergency services. Paramedics were attempting to perform lifesaving maneuvers on others with no success. SSgt. Silcox, a 19-year veteran of the force, had never seen such a thing. All available police cruisers were dispatched to the scene of the collision, with enforcement of other matters being left to the emergency response unit.

[47] As this was taking place, police cruisers were driving past the scene of arrest with sirens blaring. Information was broadcast across the police radio at dizzying intervals, with changes coming fast and furious.

Waiting before right to counsel

[48] Once PC Cochrane had physical control of the accused, outside of the cruiser, she advised him that he was under arrest for “dangerous operation”. She did not advise him of his right to counsel at the time of arrest. This occurred at 8:47 p.m.

[49] In cross-examination, PC Cochrane testified that she knew that she was to inform an accused person of the right to counsel and caution them, but she did so as soon as she could say it was safe to do so. PC Cochrane testified that she was concerned about the dynamic and unique nature of the situation, the empty knife sheath and what the accused was wearing under his leather jacket. She testified that she did not know if he was working alone or with somebody else or a group of individuals, or if others were coming and the officers were going to be ambushed in some fashion.

[50] When asked if these concerns were purely conjectural, PC Cochrane responded, “I was not satisfied at this time that any of these things would not happen”.

[51] It was put to her that at one point, there was no safety concern because various other officers were at the scene. PC Cochrane acknowledged that the presence of other officers did slightly change the situation. However, it did not dispense with the need for caution in the face of unpredictability.

Moving toward the cruiser

[52] Officers Cochrane and Chamberlain stood the accused up and escorted him to PC Cochrane’s police cruiser which was nearby. As they walked toward the cruiser, the accused said something akin to, “I did it on purpose, fuck the Muslims”. PC Cochrane was certain about most words in the sentence, though not the small words. She explained that:

It was a very ongoing dynamic situation, I had a lot of officer safety concerns, concerns for [the accused], concerns for the public. So I did not have the time at that moment or believe it was practical when I was not satisfied with our safety to take out my duty book and record word for word the the’s and the and’s…

[53] PC Cochrane knew that it was her responsibility to provide someone under arrest their right to counsel and caution. She did not do so at that time because she was concerned about her safety, the accused’s safety and the safety of the public. It was for that reason that she waited before informing the accused of his rights under s. 10 of the Charter.

Arrest for attempt murder

[54] Once the accused was placed in the cruiser, PC Cochrane got into the front seat. It was at that time that she informed the accused of his right to counsel and gave him the standard primary caution. At the same time, PC Cochrane was advised over the police radio that the accused was arrestable for attempted murder, given the injuries suffered by the victims. She arrested the accused again, this time for attempted murder. This arrest took place at 8:50 p.m. She immediately provided him with his right to counsel, using the language from the front of her duty book.

[55] When she asked, “do you understand?”, the accused replied, “What if it wasn’t attempt murder and I only wanted to hurt them?”

[56] She asked, “Do you wish to call a lawyer now?”, to which he responded, “I would”. She then read the primary caution and asked, “do you understand?”, to which he responded, “Yes, I do”.

Arrest for first degree murder

[57] During this time the accused was seated in the back of the cruiser; he was smiling and looking out of the windows of the vehicle. PC Cochrane went over to brief Sgt. Cochrane. PC Thyhurst stayed with the accused.

[58] At 8:54 p.m., PC Cochrane returned to the vehicle, at which time she was advised over the air that the accused was arrestable for first degree murder. She was standing outside of the cruiser when she got that information. She went into the cruiser, rolled the accused’s window down part way, stood directly beside him outside the cruiser and told the accused that he was under arrest for first degree murder. This took place at 8:55 p.m.

[59] The accused said, “I thought it was attempt, not first degree”. PC Cochrane responded by letting him know that one of the individuals had died. At 8:56 p.m. she again advised the accused of his right to counsel from the front of her duty book. When asked, “do you understand?”, he said, “Yeah, I appreciate it”. When asked “do you wish to call a lawyer now?”, he responded, “I don’t have a phone”. The officer did not respond to that statement but went on to re-read the primary caution.

The “okay” symbol

[60] According to PC Nicole Thyhurst, she observed the accused while he was sitting in the back of PC Cochrane’s cruiser. She saw him smiling at her, as she made direct eye contact with him, he brought his hands around to the left side of his body and was making what the officer believed to be the “okay” symbol with his hand. As he did this, he was smiling and laughing.

[61] PC Mathew Heitkamp arrived at Cherryhill Mall at which time the accused was already in the backseat of PC Cochrane’s vehicle. When PC Heitkamp arrived, he noticed that the accused was looking around, he seemed happy and smiling. He was giddy, and looking around, moving his head from left to right.

[62] PC Heitkamp followed PC Cochrane’s cruiser to LPS headquarters.

Utterances in the Cruiser

[63] While in the back of PC Cochrane’s vehicle, the accused made various statements in an apparently spontaneous fashion.

[64] PC Cochrane left the scene with the accused at 8:58 p.m. Between 8:56 p.m. and 8:58 p.m., while she was looking up information on the MTO portal, he said to her, “A white man finally had enough and did something about it”.

[65] As they were leaving the scene for cells at LPS headquarters, the accused offered the following spontaneous utterances:

“I hope you have kids, otherwise you are a part of cunt class”.

“I’ll give you my forgiveness if you have kids”. And

“I hope the news is here”.

[66] After those utterances were made, PC Cochrane immediately departed.

[67] PC Cochrane took notes of the statements. She did not have a recording device in the vehicle. She did not use her personal phone to record. She did not ask the accused to confirm what he said.

Arrival at the Cell Bay Doors

[68] The cruiser arrived at LPS headquarters at 9:08 p.m. and parked outside of the cell bay doors. At the time, the doors were closed, which signaled to PC Cochrane that officers were either booking someone else in, or they were otherwise not ready to receive the accused. She did not know why there was a delay.

[69] PC Heitkamp arrived at the cell bay doors as well. He approached PC Cochrane’s cruiser while she was waiting for the doors to open. As they were in the car, the accused said to PC Cochrane, “It was weird, all of a sudden I didn’t want to die, I could have kept going”. PC Cochrane did not respond.

Delay

[70] There was delay after arriving at the station. PC Cochrane arrived in the bay at 9:08 p.m. It was 9:29 p.m. when the bay doors went down and 9:35 p.m. when the accused was brought in before the booking sergeant. The accused was placed in a room with a phone at 9:46 p.m.

[71] PC Cochrane did not alert anyone in the police station to the fact that she had the accused with her. Nor did she try to expedite the process of getting the accused to a phone. She testified that she did not think that she could “jump the queue”. It was put to her that she did not appreciate the urgency of the matter. She disagreed with this suggestion insisting that she got the accused into the station as quickly as she could. She testified that this matter was outside of her control, because other matters were being processed in the police station. She testified that there was no possible way to jump the queue. Nor did she ask. She did not mention the urgency of the request to Sgt. Cochrane.

Bay doors open

[72] At 9:12 p.m. the bay doors opened and the vehicle was able to enter. While waiting, PC Cochrane asked the accused for his address and cell phone number. She asked him whether he lived alone and how long he had lived there. While she could not recall asking these specific questions, she recorded the answers in her notebook.

[73] At 9:29 p.m., the officers were at liberty to remove the accused from the vehicle.

[74] The accused was searched, as are all prisoners, before entering the booking area. PC Heitkamp searched him and asked if he had any needles on him to ensure his safety. PC Heitkamp pushed him up against the wall and took the handcuffs off. Nothing was located during the search.

Entry

[75] At 9:35 p.m., PC Heitkamp and PC Cochrane came into the booking area of the police station with the accused. PC Cochrane informed the book in sergeant of the accused’s statement in the cruiser, and she added that it was a possible “suicide by cop” attempt. PC Cochrane testified that she felt it was important that the booking sergeant be aware of this.

[76] Asked if he wanted to speak to a lawyer, the accused responded, “For the heck of it, sure”.

The Call to Duty Counsel

[77] The accused was placed in the room at 9:46 p.m. Sgt. Adderley contacted duty counsel at 9:51 p.m. Duty counsel called back at 10:34 p.m. and was transferred to speak to the accused at 10:35 p.m.

The First Interview

[78] At 1:16 a.m., the first interview began with Detective Micah Bourdeau. He made it clear that the accused now faced four counts of first degree murder. He provided the accused with a fresh recital of the right to counsel, as well as a primary and secondary caution. Because of the significance of this preliminary exchange, I have reproduced it at some length below:

60 MB: …so I wanted to make sure you are aware of your rights in relation to the four 61 counts of murder and one count of attempt murder and if you want to speak to a 62 lawyer again…because you have…you know there has been a change in your 63 jeopardy, I want to give you a chance to do that. 64 NV: Well I already talked to one 65 MB: okay 66 NV: like I… 67 MB: So before you say anything else I want to let you know that you are changed or 68 could be charged with four counts of murder, one count of attempt murder. You 69 are not obliged to say anything unless you wish to do so but whatever you say may be given into evidence, do you understand that? 71 TIME STAMP: 08:36 72 NV: yes 73 MB: okay now here is one more thing for you before we get going here um 74 you’ve…this is a little bit worry so I’m gonna read it to you but then I’m gonna 75 explain it to you if you don’t understand okay. If you’ve spoken to any other 76 police officer or to anyone else with authority or any such person has spoken to 77 you in connection with this charge, I want it clearly understood that I do not want 78 it to influence you in making any statement, do you understand what that means? 79 NV: yes 80 MB: okay what does that mean to you? 81 NV: so basically if I were to think… oh f...if I was like oh shoot I already said to the 82 officer I might as well confess… 83 MB: uh huh 84 NV: …that’s what I think that means 85 MB: um well here is what…the way I interpret it…you’ve spoken to ah…I’m not the 86 first police officer that you’ve communicated with tonight… 87 NV: no 88 MV: …so police officers have a level of authority in the community all right…so that’s 89 a fact they do and I want to make sure that nobody with any kind of authority be 90 that of a police officer or somebody else that you hold in some kind of authority 91 position has said something to you like you need to talk to the police…you have 92 to talk to the police… 93 TIME STAMP: 09:48 94 NV: oh no, no 95 MB: okay no one has made any threats or any promises or anything like that about 96 talking to the police 97 NV: no, no, no threats 98 MB: You are treated okay since you’ve been here? 99 NV: yeah, I’m a little shaky but…I was shock but I’m fine 100 MB: Totally understandable that you would be shaky, it’s a pretty serious deal right… 101 NV: yeah TIME STAMP: 16:05 141 NV: thank you 142 MB: got you those…So you spoke with a lawyer um are you…you satisfied with the 143 advice you got from the lawyer? 144 NV: No but…it’s just… 145 MB: I don’t want to know what they said to you, that’s none of my business 146 NV: It’s just…I know the deal already pretty much...I’ve done…I’ve done so much 147 research before I did what I did like I kind of…I kind of know the deal 148 MB: okay do you want to talk to a lawyer again…this is… 149 NV: maybe later but I’m happy to talk to you right now 150 MB: okay I just want to make sure you…because I’m not here to…I don’t want to trick 151 you…I’m not trying to trick you 152 NV: Well regardless of whether or not you were or are…I’d…I am not um I am not 153 planning on…on being dishonest or…how do I put it um I…I’m going…I 154 basically…I’m gonna be honest with what I did. I’m not gonna try to… 155 MB: okay 156 NV: …I’m not gonna be trying to oh how can I get a lower sentence and… 157 MB: okay I appreciate that 158 NV: …it’s not because…it’s not at all bad, it’s ah well I’ll explain it later I guess when 159 you ask me questions 160 MB: um ok I just like…again I want to make sure that you have advice, you have 161 spoken to someone, they are aware of your situation and that you are satisfied 162 with the advice you get. 163 TIME STAMP: 17:44 164 NV: I…I’m aware that anything that I tell you can be used to make my ah sentence ah 165 worst. I know that…I know that if you are trying to you know get the least 166 sentence or get the least whatever, your best bet is to never talk to a cop…like 167 don’t talk to the cops at all but a lawyer but that’s not my intention to do…I’m not 168 planning on pleading insanity. I’m not planning on claiming that I was ah in a 169 psychotic state...I’m not…I want…I want the world to know why I did what I did so 170 I’m gonna…I’m just gonna tell you 171 MB: okay and I…you know like I’m a detective. I am in the Major Crime Section so 172 you know what my job is…is to find out the whys and the who’s and the what’s, 173 all that…so all the details 174 NV: yep 175 MB: um but before we do that, I just…I want to make sure that you are completely 176 aware of your rights… 177 NV: yes I know I have every right of not talking to you at all. I know I could just be 178 quiet and not say anything 179 MB: exactly 180 NV: and if I was trying to…say if I was like oh I regret doing that…I wish…I want a 181 lawyer…I don’t want to spend the rest of my life in jail then what I would do is I 182 would not talk to you at all and I would get a lawyer and I would try to plead 183 insanity but I’m not gonna do that 184 MB: So just…one of the things you said that just kind of made me just twit my interest 000016 there is that you were talking about me trying to get more of a worst sentence or 186 lessor sentence…so that…just so you know, it’s not up to me right 187 TIME STAMP: 19:17 188 NV: right but I…what I’m telling you right now can and will be used against me 189 MB: yes absolutely 190 NV: I know all that 191 MB: I just want to make sure it’s your…you are aware and you’ve said it several times 192 now… 193 NV: yeah 194 MB: …I just want to make it crystal clear that um your ah anything you say to me is of 195 your doing. You are voluntarily telling me things 196 NV: yep 197 MB: okay and I will not play games with you, I’m not gonna try to trick you. I’m 198 just…my job is to find out those details and what happened…things that 199 happened and why that happened 200 NV: yep 201 MB: um so please if you would love…would like to speak to a lawyer again…at any 202 point from the whole time you and I are together um please just say the word… 203 NV: okay 204 MB: …and I will get you out of here and get you in touch with a lawyer okay 205 NV: I’ll let you know 206 MB: okay um so I could call you Nate? 207 NV: Yep 11 208 TIME STAMP: 20:13 209 MB: and that’s what most people would call you…that’s what you go by… 210 NV: yep 211 MB: okay. Um my name is Micah okay 212 NV: Nice to meet you 213 MB: Nice to meet you um if you need anything to drink…anything more to drink 214 again… 215 NV: I’m fine for now 216 MB: …if you want some food 217 NV: yeah I’ll let you know 218 MB: okay, um 219 NV: thank you 220 MB: I do…to be honest with you Nate I have a lot of questions for you but… 221 NV: you’re gonna get them 222 MB: …but ah what…what I’d like to do is just give you the floor so to speak and ah I’d 223 like you to tell me what happened but I’d like to tell me what happened in as 224 much details as possible, as best as you can recall and it, I’d like you to start at 225 the beginning wherever ah wherever the beginning is for you…that could be 20 226 years ago… 227 NV: okay

[79] The accused then began speaking and did so without interruption or questioning Detective Bourdeau for some time. He appeared quite anxious to speak and to explain the motivations for his actions. He offered a detailed soliloquy describing, among other things, the evolution of his beliefs from the age of 13; his growing attraction to the views of right wing extremists; his belief in so-called “Muslim grooming gangs”; his decision to refrain from joining a group or presenting an on-line presence for fear he would be stopped; the inspiration that he derived from other mass murderers, most prominently the man responsible for a mass killing in Christchurch, New Zealand; and his desire to inspire others to act in similar fashion.

[80] Detective Bourdeau remained relatively passive during his interview with the accused. From time to time, he asked clarifying questions, but he did not engage in the sort of active manipulation that is characteristic of the notorious “Reid technique”. To the contrary, Detective Bourdeau gave the floor to the accused to speak, and the accused took that opportunity to speak at some length and with some enthusiasm.

[81] On at least ten occasions, Detective Bourdeau asked the accused if he wanted to speak to counsel. When the accused initially said that he was not happy with the advice he received from duty counsel, Detective Bourdeau offered a clear opportunity for the accused to call another lawyer. The accused declined each of these offers, saying that he might avail himself of counsel later.

[82] The accused had ingested intoxicating substances (magic mushrooms) earlier that weekend but asserted that he was not under the influence at the time of the interview. None of the officers perceived any symptoms of intoxication, describing him as alert and responsive throughout their dealings with him. The video footage of the booking area and the statements of the accused similarly disclose no evidence of intoxication.

The Second Interview

[83] The first interview concluded at 1:15 a.m. on June 7. The accused was taken to a cell where he could sleep. The video evidence reveals that the cell was barren, with a cement slab posing as a bed, and no pillow, blanket or other source of comfort. Video evidence also depicts that the accused was taken for fingerprinting at approximately 6:00 a.m., interrupting any sleep that the accused might have been able to achieve in his assigned cell.

[84] The second interview with Detective Bourdeau commenced at 9:46 a.m. At this time, the accused appeared more solemn and introspective than he had the day before. He continued to speak when he wished, while “passing” on questions that he did not wish to answer.

Analysis

Voluntariness

[85] Having considered the whole of the evidence, and the arguments of counsel, I have determined that the statements made to the 911 call-taker, to the arresting officer, and the video statements made to Detective Bourdeau have been proved to be voluntary beyond a reasonable doubt.

[86] I will explain why in the reasons that follow.

General Principles

[87] The confessions rule has a long history in Canadian jurisprudence. Since R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, the courts have adopted a functional approach to the voluntariness of statements. The question is not merely whether police offered promises threats or inducements. The question is whether, if such events occurred, they operated as a quid pro quo that prompted the subject to speak. The question looks at two vantage points: 1) the conduct of police; and 2) the actual impact of that conduct on the will of the subject. The ultimate question is whether the will of the subject has been overborne by the circumstances in which the statement was elicited.

[88] There are various components to the voluntariness inquiry. The court must consider whether there were inducements to speak, or disincentives to remain silent – often referred to as promises, threats or inducements. The court must inquire into whether the circumstances were oppressive, causing the subject to speak to escape them. Were the circumstances so intolerable that the person did not make a free and voluntary decision to speak to police? The court must consider whether the subject had an operating mind. Ultimately, the Crown must prove beyond a reasonable doubt that the statements were voluntary. This is one of the few admissibility determinations that is governed by the ultimate standard of proof. The sheer power of a confession and its impact on the fact-finding process commands that voluntariness be held to a strict standard of proof.

[89] The rule is predicated on twin pillars of fairness and reliability. An involuntary confession is less likely to be reliable. Similarly, the rule concerns itself with the proper and fair treatment of individuals who interact with persons in authority. The inquiry is contextual and highly fact-specific.

[90] The Supreme Court of Canada has recently affirmed the importance of the voluntariness inquiry, and its constituent elements. In R. v. Tessier, 2022 SCC 35, 473 D.L.R. (4th) 317, at para. 70, Kasirer J. noted for the majority:

The rule is animated by both reliability and fairness concerns, and it operates differently depending on context. As Iacobucci J. explained in Oickle, while the doctrines of oppression and inducement are primarily concerned with reliability, other aspects of the confessions rule, such as the presence of threats or promises, the operating mind requirement, or police trickery, may all unfairly deny the accused’s right to silence. A statement may be excluded as involuntary because it is unreliable and raises the possibility of a false confession, or because it was unfairly obtained and ran afoul of the principle against self‑incrimination and the right to silence, whatever the context indicates. It may be excluded if it was extracted by police conduct [translation] “[that] is not in keeping with the socio‑moral values at the very foundation of the criminal justice system”.

[Citations omitted.]

[91] Similarly, in R. v. Beaver, 2022 SCC 54, 420 C.C.C. (3d) 421, at paras. 47 and 48, Jamal J. stated the following for the majority:

[47] Voluntariness, broadly defined, is the "touchstone" of the confessions rule. Voluntariness is a shorthand for a complex of values engaging policy concerns related to not only the reliability of confessions, but also to respect for individual free will, the need for the police to obey the law, and the fairness and repute of the criminal justice system. Involuntary confessions can be unreliable, unfair, and harmful to the reputation of the criminal justice system. A statement may be involuntary “because it is unreliable and raises the possibility of a false confession, or because it was unfairly obtained and ran afoul of the principle against self-incrimination and the right to silence”.

[48] The application of the confessions rule is necessarily flexible and contextual. When assessing the voluntariness of a confession, the “trial judge must determine, based on the whole context of the case, whether the statements made by an accused were reliable and whether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to a person in authority”. The trial judge must consider all relevant factors, including the presence of threats or promises, the existence of oppressive conditions, whether the accused had an operating mind, any police trickery that would “shock the community”, and the presence or absence of a police caution. These factors are not a checklist that supplants a contextual inquiry.

[Citations omitted.]

[92] In Tessier, the Supreme Court affirmed the importance of a caution in the assessment of voluntariness, at paras. 78 and 79:

[78] … [T]he weight to be given to the absence of a caution will fall on a spectrum. At one end, the significance attached to the failure to caution an uninvolved individual — such as the person on the street corner — will typically be negligible. The relative lack of vulnerability of an uninvolved individual or witness who is questioned by police means that a caution will typically be unnecessary to show that the statements were voluntary. To require that police caution every person to whom they address questions in a criminal investigation, even where those questions are asked at a police station, would be — as the Court of Appeal rightly noted here — an unworkable standard. It would unduly limit the broader societal interest in investigating crime by excluding reliable and fairly obtained statements in circumstances that do not warrant it.

[79] At the other end of the spectrum, the vulnerability and legal jeopardy faced by detainees cement the need for a police caution. Fairness commands that they know of their right to counsel and, by extension, of their right to remain silent so that they can make an “informed choice” whether or not to participate in the investigation (I borrow the expression “informed choice” from Singh, at para. 33). The balance courts seek to achieve in applying the confessions rule in this context tilts in favour of protecting the rights of the detained person and of limiting society’s interest in the investigation of crime. The weight attached to the absence of a caution in these circumstances, while not determinative of the question of voluntariness owing to the contextual analysis required, will be at the highest end.

[Citations omitted.]

The 911 call

[93] The statements made by the accused to the 911 call-taker may or may not be subject to the voluntariness rule. It is not clear that a 911 call-taker is a person in authority, such that a voir dire on admissibility is required. According to the evidence in this case, the call-taker conveyed information to police but was not a member of the police. She cannot exercise any powers of arrest, detention or search. It is true that she communicates with persons who do have the power to arrest, but that is not her role. During cross-examination, counsel for the accused put to the 911 call-taker that she was asking “investigative” questions. She did not agree. Her purpose in asking questions is not to investigate crime; it is to receive and relay information to authorities so that they can effectively respond to emergency situations.

[94] A person in authority is “generally someone engaged in the arrest, detention, interrogation or prosecution of the accused”: R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at para. 37. There are both subjective and objective components to the “person in authority” analysis. The subjective component essentially asks whether the accused believed the recipient to have the power to influence any legal proceedings flowing from the investigation, such that failure to make a statement would be to the accused's detriment, while making a statement would lead to better treatment. This belief must be objectively reasonable: see Grandinetti, at para. 37; R. v. Hodgson, [1998] 2 S.C.R. 449, at paras. 37-38; and R. v. Louangrath, 2014 ONSC 1126 at paras. 19-20, aff’d on other grounds, 2016 ONCA 550, 340 C.C.C. (3d) 170.

[95] It is open to argument that the call-taker was not a person in authority for purposes of the voluntariness rule. Yet, I also accept that the accused may have perceived that the 911 call-taker could facilitate an arrest. During the call, he continually urged her to send someone to come and arrest him. If she was a person in authority, I find that the accused’s statements were voluntarily offered. It was the accused who initiated the call to 911 through the taxi driver on scene. There can be little doubt that the accused was not only willing, but anxious, to communicate with law enforcement authorities immediately after the incident. The call-taker offered no promises threats or inducements. There was no part of the exchange that could have overborne the will of the accused.

[96] That determination to speak continued virtually unabated in the hours that followed the accused’s arrest.

Statements in the cruiser

[97] As noted above, the Crown did not tender at trial any statements made by the accused in answering police questions before arriving at the station. The Crown sought only to lead those statements that were made absent any form of elicitation – those that were offered in an apparently spontaneous fashion.

[98] I am satisfied that officers at the scene offered no promises, threats or inducements. Nor did they engage in any other conduct capable of vitiating voluntariness. The accused was given a primary caution at the scene. He understood both his right to silence, and the fact that what he said could be used in evidence against him.

[99] The following statements, made at the scene, were spontaneous and unprompted by police questioning. The inescapable inference is that the accused’s assertions reflected an exercise of his free will, and his decision to speak:

a. Something similar to, “I did it on purpose. Fuck the Muslims.” (Recipient: PC Cochrane);

b. “I did it on purpose, fucking Jews and Muslims” (Recipient: PC Chamberlain);

c. “What if it wasn't attempt murder and I only wanted to hurt them?” (Recipient: PC Cochrane);

d. “A white man finally had enough and did something about it.” (Recipient: PC Cochrane);

e. “I hope the news is here.” (Recipient: PC Cochrane); and

f. “It was weird, all of a sudden I didn't want to die, I could have kept going.” (Recipient: PC Cochrane).

[100] While I have found these statements to be voluntary, as a postscript to this ruling, I note that the Crown refrained from eliciting the above statements at the trial.

Statements made to Detective Bourdeau

[101] The statements made to Detective Bourdeau were voluntary. Detective Bourdeau conducted both interviews of the accused in an exemplary fashion. He offered the right to counsel on several occasions, repeatedly cautioned the accused, offered food and drink, and generally assumed the role of a passive listener. He did not set out to manipulate or control the interviews. He offered no promises threats or inducements. At one point when the accused mentioned sentence, Detective Bourdeau was quick to point out that he had no input or control over what sentence the accused might receive.

[102] Detective Bourdeau provided a fulsome reading of the right to counsel and confirmed that the accused had consulted duty counsel, as had been his request. He confirmed that the accused understood the primary and secondary cautions, and had the accused repeat that information back to him accurately.

[103] At the outset of the first interview, Detective Bourdeau confirmed for the accused that the stakes were high: he was under arrest for four counts of first degree murder and one count of attempt murder. The accused was offered food and water. He declined food but accepted water. Detective Bourdeau made clear that if the accused changed his mind about food, he need only let him know, and he would be fed. Another offer of food was made and declined well into the first statement. The evidence on the voir dire left no suggestion that the accused was under the influence of substances while in police custody. He asserted that he felt fine and that he was not under the effects of the magic mushrooms he had taken some time before.

[104] The accused agreed, as the first interview was drawing to a close, that Detective Bourdeau had really “hammered home” that the accused need only ask if he wished another consultation with legal counsel.

[105] After the accused’s lengthy opening soliloquy, Detective Bourdeau stated his intention to focus the interview. In measured tones, he began asking the accused open-ended questions about the time leading up to the killing of the Afzaal family. He made it clear to the accused that his job was to “tease out these details”. As the interview continued, Detective Bourdeau sought more specific information on various points. The questions were clear, the answers responsive and appropriate to the subject-matter. The accused sought and received clarification at times, and at times corrected Detective Bourdeau.

[106] As the first statement progressed, and throughout the second statement, the accused began more regularly exercising his right to silence regarding certain areas of inquiry. At points in the first statement, he explained his growing reticence to continue the interview. For example, nearing the end of the first statement, the following exchange took place:

MB: Um it seems to be a sticking point for you to talk about ah knowing where you're going, when you put these things in your car, I'm not sure why NV: No I just don't enjoy talking about what I did because I just don't enjoy it because like it was very ... it was very ah very, very, very distasteful so ah it's just ... so MB: okay NV: ... but eventually I will MB: I mean that's ... that NV: No I just don't enjoy talking about what I did because I just don't enjoy it because like it was very ... it was very ah very, very, very distasteful so ah it's just ... so MB: okay NV: ... but eventually I will MB: I mean that's ... that is part ... you are talking about the motivations, the reasons why you did it NV: yes but it's difficult even with all my motivation, it is difficult ah to speak of what I did.

[107] Nothing done by Detective Bourdeau precipitated the accused’s growing circumspection. Rather, his reticence was attributable to something internal and self-generated, to a growing appreciation of the significance of his actions and their consequences:

MB: Do you think that the reality of the, of the situation is starting to set in a little bit? NV: Yes sir.

MB: And it seems to maybe, it seems to have changed your demeanor somewhat, since ... NV: Yes sir. 102 38.

[108] Yet, even as the accused’s demeanour changed, the clarity of his convictions did not. He continued choosing, freely and voluntarily, when to speak with Detective Bourdeau throughout both their interviews. The accused told Detective Bourdeau at the outset, “I want the world to know why I did what I did so I'm gonna ... I'm just gonna tell you”. As his second interview was winding down, the accused remained steadfast about his message and his motives. From start to finish, the accused maintained his culpability, acknowledged he had “sacrificed” the rest of his life, and that he had done so to deliver a “warning” and exact “revenge” on the global Muslim community.

[109] Police may be properly accusatorial when interviewing a subject. Officers may exhort a subject to tell the truth and express disbelief of things said. So long as it is not done in such a fashion that the free will of the subject is overborne, officers may confront subjects with evidence and logic designed to demonstrate the strength of the case and the futility of protestations to the contrary. Detective Bourdeau never resorted to such tactics. Sitting opposite a willing conversant, his tone was gentle and reassuring.

[110] This is not a case like Oickle where police used any number of manipulative tricks to elicit speech. Nor is it a case like R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, where there was a potential for a quid pro quo. He did not set out to break down the will of the suspect. He asked only open-ended questions, and listened while the accused offered his account.

[111] The Crown has also proved that the accused had an operating mind at the time he spoke with Detective Bourdeau. The accused clearly understood that he had a right to silence. Detective Bourdeau took pains to ensure that the accused understood his rights and both the primary and secondary caution. Detective Bourdeau had the accused repeat back his understanding of the caution. There is no question that the accused fully understood that he was under no obligation to speak and that, if he chose to speak, what he said might be used in evidence against him. The accused was very much in control of what he would and would not say; the questions he would and would not answer. His decision to speak was not just voluntary; it was deliberate and enthusiastic.

[112] As it relates to the statements given to Detective Bourdeau, the defence relied on the circumstances of the accused’s detention after being brought into the LPS headquarters. During the voir dire, the Crown played several hours of video chronicling the accused’s detention in cells, the booking process, the fingerprinting process, and, of course, the videos of the interviews themselves. I agree with the defence that the circumstances of the accused’s detention were less than optimal. The accused was placed in a barren cell, with a cement slab for a sleeping area, and no pillows or blankets. He was taken to the cell for the night only to be escorted out at around 6:00 a.m. the following morning for fingerprints. The second interview then began at about 9:45 a.m. The accused was not given significant time to rest; nor was he given a particularly comfortable space in which to do so. It is not clear to me why the accused had to be woken up for fingerprinting, rather than later on the following morning.

[113] While the conditions were less than ideal, Detective Bourdeau took steps during both interviews to increase the accused’s level of comfort – offering food, drink and a blanket. The accused declined some requests and accepted others. The reason that oppressive circumstances may affect voluntariness is that the person who is cold, hungry, tired or otherwise experiencing discomfort may perceive that the discomfort will abate if he or she speaks. That is decidedly not the case here. First, the accused’s choices to speak or not speak continued throughout the process. Second, Detective Bourdeau made clear that if the accused wished food, drink, a blanket, or other items of comfort, he need only ask.

[114] I find that the conditions in this case fall far short of the type of oppression that is capable of casting doubt on voluntariness. In this regard, I rely upon the decision of the Supreme Court in Beaver, in which a 13-hour interview, while lengthy, was found not to be oppressive in all of the circumstances:

[67] Lastly, the trial judge found as fact that the circumstances of Beaver’s interview were not oppressive. I disagree with Beaver’s claim that Det. Hossack created an oppressive atmosphere by asking increasingly confrontational questions during an interview that spanned 13 hours. Although Beaver’s interview was long, it was not the type of “excessively aggressive and intimidating” interview contemplated as oppressive in Oickle. The trial judge described the interview as “conversation[al]” in nature and highlighted that Det. Hossack was “respectful” when interviewing Beaver, before becoming only “somewhat more confrontational” when presenting him with Lambert’s videotaped confession. Although the trial judge accepted that, in principle, “subjecting the accused person to aggressive and prolonged questioning” can be an oppressive tactic affecting voluntariness, he found as fact that the atmosphere of the interview did not “break [Mr. Beaver’s] will”. Instead, the trial judge found that what broke Beaver’s will was having to face “the version of events that Mr. Lambert had provided to Det. Demarino” in the videotaped confession.

[Citations omitted.]

[115] In this case, there is no evidence to indicate that the decision to speak was a function of the circumstances of detention. There is no apparent causal connection between the circumstances of the accused’s detention and his decision to speak. Nor was there any apparent quid pro quo whereby the decision to speak would generate some type of benefit. The accused did not testify on the voir dire and there is no evidence to displace the common-sense inferences that flow from reviewing the statements. Those inferences compel a conclusion that the Crown has proved voluntariness beyond a reasonable doubt.

Right to Counsel

Overview of findings

[116] I have found the following violations of the accused’s rights under s. 10(b) of the Charter:

a. The failure of the arresting officer to comply with the informational obligation immediately upon arrest. This is a technical breach, as the accused was informed of his right to counsel just a few minutes later, once he was secured in the cruiser.

b. The failure of the arresting officer to respond more fully when the accused said, in response to the question “do you want to call a lawyer now?”, “I don’t have a phone”.

c. The delay between the accused’s assertion that he wished to speak with a lawyer and the time that he was put in touch with duty counsel.

d. The failure to hold off until the right was exercised. The police did elicit certain responses from the accused by asking direct questions. The Crown did not seek to introduce those responses at trial.

[117] While I have found some Charter violations at the scene of the arrest, the statements given to Detective Bourdeau at the police station were not marred by Charter infringements. To the contrary, Detective Bourdeau did an admirable job of explaining, to the accused, his rights under the Charter as well as the primary and secondary caution. He repeatedly offered the right to counsel to the accused, who declined, stating that he might call a lawyer later. The officer was at liberty to continue questioning the accused. The duty to hold off was suspended, given the accused’s failure to act diligently in the exercise of his rights.

Arrest of the Accused

Was the officer entitled to suspend the right to counsel based on safety issues?

[118] As noted at the outset of these reasons, this was a fluid and dynamic situation. While the accused voluntarily surrendered, the police did not know what they did not know. It was appropriate that they treated the unfolding situation as one of exigency: see R. v. Ahmed, 2022 ONCA 640.

[119] The delay between the accused’s arrest and his being advised of the right to counsel was technically in violation of the s. 10(b) imperative to advise of the right “without delay”. Without delay has been interpreted as meaning immediately: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 24. Even a three-minute delay is contrary to the language of without delay read strictly. Section 10(b) of the Charter imposes a time-sensitive obligation on police to inform occupants of the right to counsel immediately, subject to concerns for officer or public safety.

[120] Within the relative calm of the courtroom, it is easy to second guess tactical and operational decisions made by police in a volatile and dynamic event. It is difficult to imagine a more potentially volatile event than that of June 6, 2021. After the accused drove into the Afzaal family, there began a level of chaos that consumed police resources, and instilled a fear of what might follow. Police did not know if the accused had accomplices, or whether other violent events had yet to be discovered. Calls were flooding the 911 system, and police from all units were dispatched to deal with this emergency.

[121] The defence argued that, once the accused was arrested and under the control of the police, any potential danger had dissipated. The accused was cooperative and compliant with police demands. He did not have access to weapons. He acted alone and there were no accomplices planning further violence. There was no longer any risk to officer or public safety.

[122] This accurately describes the situation as we now know it. It does not, however, reflect what the police knew at the time that the events were unfolding. We must not lose sight of the exigencies presented by this event – a violent, and tragic incident that sent shock waves through the community, including the police community. The officers at the scene did not have the luxury of hindsight. They did not know whether the accused had partnered with others. They did not know whether other violent plans were to be executed, whether the threat had been neutralized. The police did not yet know what they did not yet know.

[123] I have no difficulty concluding that the police were justified in their concerns about safety. They would have been derelict in their duties had they not considered the possibility of an ongoing threat to the community.

[124] This perspective is supported by the case law. In R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.), police were responding to a gun call. It was not clear whether others were in the apartment after the accused exited. The entry was justified on the basis of exigency. As it was put by Doherty J.A., at p. 757:

In deciding whether the police were justified in taking steps to ensure their safety, the realities of the arrest situation must be acknowledged. Often, and this case is a good example, the atmosphere at the scene of an arrest is a volatile one and the police must expect the unexpected. The price paid if inadequate measures are taken to secure the scene of an arrest can be very high indeed. Just as it is wrong to engage in ex post facto justifications of police conduct, it is equally wrong to ignore the realities of the situations in which police officers must make these decisions.

[125] One cannot ask the police to place themselves in potentially dangerous situations in order to effect an arrest without, at the same time, acknowledging their authority to take reasonable steps to protect themselves from the dangers to which they are exposed. As it was put in Golub, at pp. 758-9:

If the circumstances of an arrest give rise to a legitimate cause for concern with respect to the safety of those at the scene, reasonable steps to allay that concern may be taken. The nature of the apprehended risk, the potential consequences of not taking protective measures, the availability of alternative measures, and the likelihood of the contemplated danger actually existing, must all be considered. The officers making this assessment must, of course, do so on the spot with no time for careful reflection. In my opinion, a reasonable suspicion, based on the particular circumstances of the arrest, that someone is on the other side of a closed door with a loaded sub-machine gun, or that someone is lying injured on the other side of that door, creates a legitimate cause for concern justifying entry and search of the apartment for persons. [Emphasis added.]

[126] Similar comments were offered by Cromwell J. in R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142:

[23] First, the decision by the police must be judged by what was or should reasonably have been known to them at the time, not in light of how things turned out to be. Just as the Crown cannot rely on after-the-fact justifications for the search, the decision about how to conduct it cannot be attacked on the basis of circumstances that were not reasonably known to the police at the time. Whether there existed reasonable grounds for concern about safety or destruction of evidence must not be viewed “through the ‘lens of hindsight’”.

[24] ... The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback.

[Citations omitted.]

[127] Most recently, the Supreme Court echoed these sentiments in R. v. Stairs, 2022 SCC 11, 412 C.C.C. (3d) 283, quoting approvingly from Golub:

[73] In concluding that reasonable suspicion applies to searches of a home incident to arrest, Doherty J.A. balanced the privacy interests in the home and the relevant police objectives. Given the factual matrix in Golub, he was particularly concerned about the police interest in protecting the safety of persons at the scene of the arrest. In that regard, he made the following astute observations, with which we fully agree:

. . . I am concerned with the police interest in protecting the safety of those at the scene of the arrest. This interest is often the most compelling concern at an arrest scene and is one which must be addressed immediately. In deciding whether the police were justified in taking steps to ensure their safety, the realities of the arrest situation must be acknowledged. Often, and this case is a good example, the atmosphere at the scene of an arrest is a volatile one and the police must expect the unexpected. The price paid if inadequate measures are taken to secure the scene of an arrest can be very high indeed. Just as it is wrong to engage in ex post facto justifications of police conduct, it is equally wrong to ignore the realities of the situations in which police officers must make these decisions. [Emphasis added; p. 757.]

[74] When assessing police conduct, the reviewing judge must be alive to the volatility and uncertainty that police officers face — the police must expect the unexpected. This reality is inherent in the police’s exercise of their common law powers, as well as their statutory duties, including “the preservation of the peace, the prevention of crime, and the protection of life and property”. Given their mandate, “police officers must be empowered to respond quickly, effectively, and flexibly to the diversity of encounters experienced daily on the front lines of policing”. A reasonable suspicion standard ensures that the police may carry out these duties, while also balancing the enhanced privacy in a person’s home.

[96] Our colleague Justice Karakatsanis maintains that the police acted on generalized suspicion, as opposed to reasonable suspicion. With respect, we disagree. In assessing whether the conduct of the police was objectively reasonable in the circumstances of this case, we are reminded of the invaluable insight provided by Doherty J.A. in Golub, at p. 757: in volatile circumstances where the police must expect the unexpected, it is “wrong to ignore the realities of the situations in which police officers must make these decisions”. While it is critical that the line between generalized suspicion and reasonable suspicion be maintained, in cases like the present one, we must assiduously avoid using twenty-twenty hindsight as the yardstick against which to measure instantaneous decisions made by the police.

[Citations omitted.]

[128] The above passages have direct application to this case.

[129] To be clear, I am not saying that the events of that day created a “Charter-free zone”. The fact that a charge is serious does not suspend the requirements of the law. If anything, there is an even greater public interest in Charter compliance where the investigation involves multiple homicides: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The point is simply that the police must not be held to an impossible standard.

[130] In this case, police knew that there were multiple victims. They knew that the accused had effectively surrendered, wearing a helmet and bulletproof vest. They knew that there were weapons in his vehicle. They knew that a Muslim family had been hit by the accused’s vehicle. They knew that there was a mosque near the scene of the event.

[131] I have found that s. 10(b) was breached by the delay between the arrest of the accused and the first time that he was advised of his right to counsel. That delay was admittedly brief, but inconsistent with the dictates of s. 10(b). I note as well that the arresting officer asked the accused why he was wearing a bulletproof vest before providing him with either a caution or his rights under s. 10(b). I do understand that, in the heat of the moment, the officer acted instinctively in asking this question, in order to gauge the level of danger. However, it is not clear to me that the question could not wait until after a caution had been provided. Similarly, it would have taken but a few moments to inform the accused of his rights at the time of the arrest, rather than waiting until he was in the cruiser. There is something of a technical quality to this breach, as the delay between arrest and recitation of rights was not long by any means. Moreover, the Crown did not seek to elicit the answer to the question posed about the bulletproof vest. Nonetheless, and despite the exigencies presented, I find that there was some non-compliance with s. 10(b). As I will later explain, this is very much a good faith breach, given the surrounding exigencies and uncertainties.

Was the officer required to follow up when the accused said, “I don’t have a phone”?

[132] A second breach hinges on PC Cochrane’s failure to respond when the accused said, in response to the question, “do you want to call a lawyer”, that he did not have a phone. That comment arguably called for an explanatory response. The fact that the accused did not have a phone did not determine the scope of his rights. His comment called for PC Cochrane to advise the accused that a phone would be provided to him, as would a call to a duty counsel for legal advice. In this way, PC Cochrane’s response, or lack thereof, technically fell short of the informational component of the s. 10(b) requirements.

Did the officer fail to hold off?

[133] I also note that PC Cochrane did not honour the implementational duty to hold off on questioning the accused until such time as he had an opportunity to exercise his rights. With the exception of the question about the bulletproof vest, the questions asked were about relatively non-contentious matters, such as where the accused lived. The Crown did not seek to lead evidence of elicited statements, no doubt in recognition of the fact that the questions were asked before the accused was given access to a phone.

[134] The statements that the Crown did initially seek to lead were not elicited by police statements or police questions. They were spontaneous statements offered by the accused without any elicitation on the part of the officers. At the time, the accused had been advised of his right to counsel and had been cautioned on the right to silence. He was aware that what he said could be used in evidence against him. He chose to offer spontaneous remarks, presumably because it was important to him to express his views. That inference is buttressed by his comments during the first statement to Detective Bourdeau in which he offered a lengthy description of his motivations and his political views.

The delay

[135] Finally, I find that there are constitutional ramifications attaching to the delay between the arrest of the accused and the facilitation of his right to counsel.

[136] The delay was due to the fact that other prisoners were being processed when PC Cochrane arrived at the LPS bay outside the booking area. While there were other persons being booked at the time, neither PC Cochrane nor PC Heitkamp told the booking sergeant who was in the back of PC Cochrane’s cruiser. We do not know what would have happened had that information been conveyed. One would hope, however, that there would have been efforts to expedite the accused’s access to a telephone. The accused had been arrested for first degree murder; there were multiple victims; and he had indicated that he wanted to speak with a lawyer. While it is important to facilitate the rights of all detainee’s, the accused’s circumstances injected an additional layer of urgency. While others were being booked, and there was concern over drugs that had been dropped in the booking bay, the delay between the arrest and the provision of a phone to the accused exceeded constitutional limits.

[137] The protocol at the police station was such that PC Cochrane did not think that she could “jump the queue”. However, she did not make any inquiries to find out whether the accused could or should be give priority. She did not advise the booking sergeant that the person in her cruiser was the person believed to be responsible for striking the Muslim family with a pickup truck. She did not advise that the person in her cruiser was suspected of killing four people and injuring a fifth child. We cannot predict what would have happened had that information been conveyed. However, it is open to inference that the accused might have been ushered into the booking area more quickly so that he could be provided with a phone and exercise his right to counsel.

[138] The booking sergeant, Sgt. Adderly, testified that, had he known who was in the cruiser, he would not have expedited the accused’s access to a phone as the police proceed with booking in order of attendance. Even if that be the case, it is not clear that it should be the case. The police have an obligation to facilitate access to counsel for all detainees. However, where a detainee is facing the sort of jeopardy that is at issue in this case, it is, at the very least, advisable to take extra steps to ensure that his rights are protected. Police must know that, where protocol ends up delaying access to a phone, there is a very real possibility that the court will find a violation of the duties imposed by s. 10(b) of the Charter.

[139] In this regard, I rely on R. v. Desilva, 2022 ONCA 879, 421 C.C.C. (3d) 177:

[84] Having suspended the right to counsel prior to the appellant’s placement in the station cell for the reasons articulated above, it was incumbent upon the officers to facilitate access to counsel as soon as the circumstances reasonably permitted.

[85] The failure to provide access to counsel at the time of arrest, during transportation to the police station and before the appellant was searched, was reasonable under the circumstances.

[86] However, this delay made it all the more important for the police to take all reasonable steps to facilitate the right to counsel as soon as reasonably practical thereafter. No good explanation was given for the additional one-hour delay while the officers engaged in non-essential tasks. I would therefore agree with the appellant that the roughly one-hour delay in providing the appellant with access to duty counsel between 3:55 and 4:50 a.m. constitutes a breach of the appellant’s section 10(b) Charter right to counsel.

[Citations omitted.]

[140] The Court of Appeal addressed the gravity of this violation as follows:

[87] Nonetheless, there is no evidence that the police delayed access strategically or attempted to elicit inculpatory statements from the appellant during the delay. While this does not the render the police conduct any less of a breach of the appellant’s section 10(b) right, it is a factor that may be considered in assessing the severity of the impact of the Charter breach on the appellant’s protected interests under section 24(2). [Citations omitted.]

[141] Defence counsel argued that the delay in getting to a phone caused the accused to give up on calling a lawyer. At the scene, he said that he did want to speak with a lawyer. At the booking area, when asked if he wanted to speak to a lawyer, he responded by saying: “for the heck of it”. The defence argued that because of the delay, the accused came to believe that there was no use in asking for a lawyer. Hence, his response became less firm over time, and when asked by the booking sergeant, he said he would call a lawyer “for the heck of it”.

[142] I do not agree with the defence characterization. It is not clear to me that the accused was resigned to not speak with counsel. Subsequent events would strongly suggest that whatever the advice he received, he was intent on speaking and sharing with Detective Bourdeau. The accused was ultimately given a full opportunity to exercise his right by speaking to duty counsel and was offered numerous additional opportunities to speak to a lawyer by Detective Bourdeau.

The statements to Detective Bourdeau

Overview

[143] The law governing voluntariness, the right to silence and the right to counsel tends to explore the balance of power in the interrogation room. Courts are mindful of the fact that the detainee is usually an important source of evidence for police investigators. At the same time, detained persons are in a vulnerable position vis-à-vis the state, as they cannot just walk away. It is critical to ensure that, if and when detainees speak, the evidence emanating from them was not the subject of coercion, oppression, the override of the individual’s freedom of will, or a lack of awareness of one’s rights.

[144] In R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, the Supreme Court ruled that the detainee always has the ultimate power during a police interview, as he or she can simply remain silent. This, it is said, is the way in which the detainee can exert his or her will. In some instances, this is easier said than done. Some detainees present with vulnerabilities and/or limitations. Police are at liberty to use manipulative questioning techniques that can break down the detainee’s commitment to say nothing. In Sinclair, Binnie J. took issue with the majority’s statement. He observed that the right to assert silence may be a hollow right in the face of persistent and prolonged questioning.

[145] In this case, however, the balance of power in the interview room favoured the accused more than it did the police. Throughout the interviews, the accused maintained absolute control over what he would and would not say to Detective Bourdeau. The accused was not trying to remain silent. Rather, he very much wanted to speak. He was intent on sharing his ideology with Detective Bourdeau, and beyond that, with the world at large. Detective Bourdeau was a part of the broader audience that he was seeking to communicate with, through his actions and his later explanation for why he did what he did.

[146] Indeed, it is open to inference that it was the accused who was controlling the circumstances at hand. He claimed to be unhappy with the legal advice he received, yet he would not avail himself of a second opportunity to speak to counsel. His assertions that he might do so later reflected a lack of diligence. Similarly, he chose to withhold information and decline to answer questions from time to time. In this case, the accused was the one who held his rights hostage. He was given ample opportunity to speak to a counsel of his choice. His coy deferral of the opportunity to call a lawyer did not prevent police from continuing the interview.

[147] During the second interview, the accused was more subdued, and solemn. He was less enthusiastic about proselytizing. He seemed more withdrawn. It may well be that the reality of what he had done had more firmly rooted itself into his consciousness. However, this shift of mood does not reflect a relinquishment of his will. To the contrary, during the second interview, he continued to control the dialogue, choosing what he would and would not say to Detective Bourdeau. The officer did not press, but rather accepted the accused’s decision about what he would and would not say.

[148] The Charter protects individuals from interference by the state. It does not and cannot protect individuals from themselves. The case law is replete with examples of detainees not following their lawyers’ advice to remain silent. The factors that motivate detainees to speak are varied. In this case, however, it can be inferred that the accused wanted the world to know what he had done, and why he had done it. He wanted to serve as an inspiration for other like-minded individuals. He wanted to send a “brutal” message to the Muslim community that they are not welcome in Canada. He was looking for media. He wanted a platform to share his beliefs.

Effect of him saying “not now”

[149] As noted above, Detective Bourdeau offered the accused the right to counsel on various occasions throughout the interviews. He began the first interview with a full exposition of the accused’s rights, by telling him of his jeopardy, by providing primary and secondary cautions, and by having the accused repeat back his understanding of his rights. There can be no question but that the accused was fully and comprehensively advised of the full panoply of his constitutional entitlements when he spoke to Detective Bourdeau.

[150] When offered the opportunity to re-consult counsel, the accused deferred, saying “not now” and “maybe later”. The defence argues that by this point, the accused was worn down. He had spoken to duty counsel and had expressed dissatisfaction with the call to Detective Bourdeau.

[151] It is true that the accused expressed dissatisfaction with the advice received from duty counsel. Detective Bourdeau was not at liberty to probe the reason for the dissatisfaction. Nor is the court entitled to either inquire or speculate on this point. However, the officer did exactly what the law requires him to do in this instance. He offered another opportunity to speak to a lawyer and repeated that offer on at least ten occasions during the first interview. The accused’s resistance to calling another lawyer reflects a lack of diligence in the exercise of his rights. The accused’s enthusiastic speech, and his assertion that he wanted the world to know what he had done, would suggest that his intention was to speak despite knowing that he had the right to remain silent.

[152] It is not clear that there was anything else that police could do in this situation. The police are not to insist that a detainee consult with a lawyer. What they can do is reiterate the right and offer to facilitate it. It is here that the detainee has a duty to act diligently in the exercise of his rights. A detainee cannot hold the process hostage by claiming dissatisfaction with legal advice yet declining repeated offers to speak to a different lawyer. The implementational duty to hold off binds the police unless and until it can be said that the detainee is not being diligent. That is the situation in this case.

[153] The accused repeatedly said that he would call a lawyer later but not then. That was his choice, however, the police were not obliged to hold off until he decided that he was ready to speak to counsel.

[154] I find that the interviews conducted by Detective Bourdeau were constitutionally compliant and did not result in any violations of the Charter.

Section 24(2)

[155] As it relates to s. 24(2) of the Charter, I find the statements made by the accused at the scene, spontaneously, and without elicitation, are admissible despite the violations of s. 10(b). The statements that the Crown seeks to introduce were offered by the accused without any prompting or inquiry by police. It is apparent that the accused wished to make certain statements, and was intent on doing so, regardless of his rights. This conclusion is buttressed by the later statements of the accused, in which he told Detective Bourdeau that he wanted the world to know what he did and why he did it. This is one of the rare cases in which the accused demonstrated an “irresistible desire to” speak. I find that he would have made the statements even if police had achieved perfect compliance with the Charter. To that extent the spontaneous statements, while temporally connected to the Charter violations at the scene of the arrest, are admissible at trial.

[156] As for the breaches at the scene of arrest, I find that the officers acted throughout in good faith, while trying to manage and contain a dramatic and uncertain situation. The breaches were of a largely technical nature and did not reflect a deliberate wilful or flagrant disregard of the accused’s rights. The inquiry into the seriousness of the Charter-infringing conduct favours admission of the spontaneous statements made at the scene. So too does the second inquiry into the impact of the Charter-infringing conduct on the accused’s rights. All indications are that the accused was determined to be arrested by police and was determined to speak his mind upon and after his arrest. The spontaneous and non-elicited statements would have been made even absent the Charter infringements. Finally, as it relates to the societal interest covered by the third inquiry, the statements at the scene are not pivotal to the Crown’s case. (From the current vantage point, we now know that the Crown did not introduce those statements into evidence at trial.) Nonetheless, the nature of the offences is such that there is strong and compelling interest in the prosecution. On balance, I find that the statements at the scene are properly admitted under s. 24(2) of the Charter.

[157] What about the statements made to Detective Bourdeau? Here, one must consider, not only the breaches at the scene of the arrest, but the delay at the police station. These were the events leading up to interviews, in which the accused offered a lengthy and incriminating statement in which he admitted to deliberately killing the Afzaal family as an act of “terrorism” – one that was “100 percent politically motivated”.

[158] I must first assess whether the statements made to Detective Bourdeau were obtained in a manner that infringed the accused’s rights under the Charter. That is, I must assess whether there is a sufficient nexus between the breaches at the scene, and the statements made to Detective Bourdeau such as to trigger a full s. 24(2) analysis. Conversely, I must consider whether the statements made by Detective Bourdeau at the outset of the interview generated a “fresh start”, such as to sever any link between those statements and the earlier breaches.

[159] The notion of a fresh start was addressed by the Supreme Court in Beaver, and has subsequently been considered in various cases, including R. v. Davis, 2023 ONCA 227, 425 C.C.C. (3d) 80. These cases recognize that the application of the fresh start doctrine must be sensitive to the facts of the case. The question is whether police conduct between the time of a s. 10(b) breach, and the taking of a subsequent statement, has effectively severed any link between the breach and the evidence. Where the link is sufficiently attenuated, it may be said that the statement is not evidence obtained in a manner that breached the Charter. That is, in that instance, the triggering pre-condition for a s. 24(2) analysis is not met.

[160] As it was put by Paciocco J.A. in Davis, at para. 33:

Jamal J.’s description [for the majority in Beaver] of the “fresh start” doctrine is explicitly grounded in the existing case law. After reviewing that case law, he recognized that “[i]n some cases” evidence will not be obtained in a manner that breached the Charter because the police have made a “fresh start” by later complying with the Charter, in circumstances that render the nexus between the initial breach and the evidence sought to be excluded too remote to satisfy the “obtained in a manner requirement”. Relying on existing principles, he made it clear that the key issue is whether the evidence remains tainted after the “fresh start”. And he explained that “[w]hether evidence was ‘obtained in a manner’ is not determined by whether the state eventually complied with its Charter obligation, but instead is based on whether [after the eventual Charter compliance] there remains a sufficient causal, temporal, or contextual connection between the Charter breach and the impugned evidence”. He also cautioned that care must be taken because in some cases “evidence will remain tainted by a Charter breach despite subsequent Charter compliance.” [Citations omitted.]

[161] And later at para. 38:

[A]s I will explain, unlike the cases relied upon by the Crown, in the circumstances of this case, the eventual compliance with s. 10(b) obligations did not dispel the damage that the initial breach of Mr. Davis’s s. 10(b) informational rights caused to his Charter-protected interest, making this a poor case for the application of the “fresh start” doctrine. In Beaver, Jamal J. recognized that a relevant consideration in applying the “fresh start” doctrine is whether the subsequent compliance by the police dispelled the effect of the initial breach. By parallel consideration, the “fresh start” doctrine has more obvious application in cases where the impact of an earlier Charter violation has been effectively dispelled by subsequent Charter compliance that occurs before the discovery of the subject evidence. [Citations omitted.]

[162] The question therefore is whether the recitals offered by Detective Bourdeau at the outset of his first interview with the accused had the effect of dispelling the effects of the earlier breaches – the breaches at the scene of arrest, and the delay in providing the accused with a telephone upon arriving at the station.

[163] I have carefully considered the reasons in Davis, focusing on the discussion of how the fresh start doctrine should be applied in the wake of Beaver. I accept that this is a limited doctrine, and one that should be applied sparingly, or at least, with a healthy dose of caution. This is because, as noted by Paciocco J.A., too liberal an application of the fresh start doctrine would erode and undermine the protection of rights under the Charter.

[164] The question in the fresh start analysis is whether the evidence in question was obtained in a manner that breached the Charter. This is the threshold for conducting a s. 24(2) analysis. It does not determine admissibility or exclusion, but it opens the door to consideration of whether admission of the evidence would bring the administration of justice into disrepute.

[165] Temporal, tactical and contextual links will usually suffice to trigger the s. 24(2) analysis. Even breaches that occur after the collection of evidence may warrant a finding that evidence was obtained in a manner that breached the Charter. This is a reflection of the generous approach that courts have taken to this issue.

[166] Accepting the need for a generous and purposive approach, and accepting that fresh start will only sever the link between a breach and evidence in clear cases, I find that the opening recitals given by Detective Bourdeau to the accused, before taking statements from him qualify as a fresh start. These recitals effectively severed the link between the breaches at the scene, the delay and the videotaped statements.

[167] The opening recitals were extensive, thorough and meaningful. Detective Bourdeau was not involved in the earlier events that gave rise to the breaches. He emphasized the accused’s right to counsel, and repeatedly cautioned the accused. He noted that the accused’s jeopardy had changed, that he was facing four counts of first degree murder and one count of attempted murder; that the stakes were high; that it was important he understand his rights; and that anything that happened earlier should not cause the accused to think that he should speak. The accused repeated back his rights, signaling a complete understanding of what he had been told. He was offered the opportunity to call a lawyer many times throughout the course of the first interview, but declined, just as he declined to answer certain questions.

[168] It was argued by the defence that the delay in implementing the s. 10(b) right caused a certain defeatist attitude on the part of the accused, who reasoned that he was not going to have a meaningful opportunity to get legal advice and therefore should not bother. I am not persuaded that this is the case, but even if it was, the conduct of Detective Bourdeau and his repeated offers of a telephone would have clearly dispelled any notion that it was futile to ask for a lawyer at that point in time.

[169] Detective Bourdeau did not expressly say ‘let’s start over’. Yet, there is no magical incantation for assessing a fresh start – it is to be a functional analysis rooted in the particular facts of the case. Similarly, Detective Bourdeau did not tell the accused that there had been earlier breaches of his Charter rights. In Beaver, the officer shared that information with the accused, but in that case, the breach was fairly obvious. The accused had been detained on the basis of a statute that did not exist. By way of contrast, in this case, the alleged breaches were hotly contested by the Crown. While I ultimately found that there were violations of s. 10(b), I would not have expected the police to predict the court’s ultimate conclusion on these issues. There were legitimate arguments to be made by the Crown, and while those arguments did not prevail, it cannot be said that the police were obliged to assume or communicate a breach that had yet to be judicially determined.

[170] The fresh start doctrine would in its operation, obviate the need for a full s. 24(2) inquiry into the statements given to Detective Bourdeau. If I am wrong, and there is no fresh start, I would nonetheless find the statements to be admissible. That is, conducting a full s. 24(2) analysis would lead me to the conclusion that the admission of the statements would not bring the administration of justice into disrepute.

[171] As noted above, I have found that the earlier Charter violations were conducted in good faith, in the context of a potentially volatile situation. As it relates to the impact on the accused, I have also found that the accused was intent on speaking to Detective Bourdeau, and would have done so, whether or not his rights had earlier been breached.

[172] Here I rely on Beaver, but not for the fresh start principle. In Beaver, the fresh start doctrine applied to statements made by the co-accused Lambert. It did not apply to the statements made by Beaver himself. Nonetheless, the majority of the Supreme Court admitted those statements, despite the existence of earlier serious violations of the Charter. Among the factors considered by the Supreme Court was the fact that Mr. Beaver’s decision to confess was a product of his co-accused’s statement, rather than the earlier breaches. As Jamal J. explained:

[125] First, and most importantly, Beaver’s decision to confess was not caused by the Charter breaches arising from his unlawful detention. In appropriate cases, the lack of a causal connection between the breaches and the obtaining of the impugned evidence may mitigate the impact of the breach on the accused’s Charter-protected interests. As this Court explained in Grant, the strength of the causal connection between the Charter infringement and the impugned evidence plays “a useful role . . . in assessing the actual impact of the breach on the protected interests of the accused”. Here, no such causal connection exists. The trial judge found that the Charter breaches arising from the unlawful detention “had little effect” on either appellant’s decision to confess. As the trial judge explained, Beaver’s confession had nothing to do with the Charter breaches arising from the unlawful detention and everything to do with “the evidence that was beginning to unfold”, including, most importantly, Lambert’s videotaped confession. The lack of a causal connection between the Charter breaches and Beaver’s confession mitigates the actual impact of the breaches on his Charter-protected interests.

[126] Second, Beaver understood the basis for his interaction with the police. This diminished the impact the breach had on his s. 10(a) Charter right to be informed promptly of the reasons for his detention and his s. 10(b) Charter right to counsel. The trial judge found as fact that, during the two hours when Beaver was arbitrarily detained, he “knew why [he was] being detained”. Because Beaver and Lambert placed the 9-1-1 call themselves, “[they both] knew, or had to have known, that they were going to be questioned concerning . . . Bowers’ death”. And before Beaver was even questioned, he was recorded saying to himself “[t]hey’re gonna take my statement”. Because Beaver understood the “substance” of the reasons for his detention, this attenuated the impact of the ss. 10(a) and 10(b) breaches on his Charter‑protected interests.

[Citations omitted.]

[173] The above paragraphs have clear application in this case. The accused initiated contact with police by demanding that a taxi driver call 911 and then directed that the police come to the scene because he killed people. The accused exhibited a fervent desire to speak at the scene of his arrest, in the police cruiser, and at the police station. He was intent on sharing his views with the officer and ultimately the broader public. Therefore, the impact of the breaches on the accused’s interests was minimal, and this factor favours admission.

[174] Finally, applying the third inquiry, relating to the public interest, I note the following comments from the majority decision in Beaver:

[130] Here, the Charter breaches arising from Beaver’s unlawful detention did not undermine the legality of Beaver’s arrest for murder or the reliability of his confession. Nor is this a case where the Charter breaches effectively compelled Beaver to talk to the state after he had been arrested for murder. Rather, Beaver spoke voluntarily with Det. Hossack for hours in an effort to deceive her and to obstruct justice. Beaver’s confession was also essential to the Crown’s case against him, as reflected in the agreed statement of facts at trial. And while the seriousness of the offence has the potential to “cut both ways”, the public has a heightened interest in seeing serious offences such as manslaughter and obstruction of justice adjudicated on the merits.

[131] Excluding reliable evidence critical to the Crown’s case, such as Beaver’s confession, can also undermine the truth-seeking function of the justice system and render the trial unfair from the public’s perspective, thus bringing the administration of justice into disrepute. These considerations apply forcefully here.

[Citations omitted.]

[175] These passages have equal application to this case. The public has a heightened interest in seeing that the crimes in this case be tried on their merits. Balancing the various factors at play, I have no hesitation in concluding that, despite the earlier breaches of s. 10(b) of the Charter, the admission of the statements made to Detective Bourdeau would not and could not bring the administration of justice into disrepute.

Conclusion

[176] For all of the above reasons, I conclude that the spontaneous statements made by the accused at the scene of his arrest, and the videotaped statements made by the accused to Detective Bourdeau are admissible at trial. The application to exclude the statements is therefore dismissed.

Original signed by Regional Senior Justice Pomerance

Renee M. Pomerance

Regional Senior Justice

Released: April 18, 2024

COURT FILE NO.: CR-21-0174 (London) DATE: 20240418 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – Nathaniel Veltman RULING ON statements Pomerance R.S.J. Released: April 18, 2024