COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Corner, 2023 ONCA 509

DATE: 20230727

DOCKET: C65487

Doherty, Feldman and Trotter JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Keenan Corner

Appellant

Stephanie DiGiuseppe and Jessica Zita, for the appellant

Andrew Cappell and Samuel Greene, for the respondent

Heard: March 1 and 2, 2023

On appeal from the conviction entered by Justice Michael K. McKelvey of the Superior Court of Justice, sitting with a jury, on November 8, 2017, and from the sentence imposed on March 6, 2018, with reasons reported at 2018 ONSC 1529.

Doherty J.A.:

I

overview

[1] The appellant, a drug dealer, shot and killed his friend and drug dealing partner, Shabir Niazi. The shooting occurred in the late afternoon of February 19, 2014, in the garage of the home of the appellant’s parents. The appellant lived with his parents.

[2] In the minutes, hours, days, and weeks that followed the homicide, the appellant told a friend, the 9-1-1 operator, other friends, family members, family members of Mr. Niazi, and several police officers, that Mr. Niazi had been shot and killed during a “drug rip off”. The appellant told different versions of this story, some more detailed than others. In essence, he indicated that several men had burst into the garage intent upon stealing the marihuana that he and Mr. Niazi stored there. The robbers pistol whipped the appellant and shot and killed Mr. Niazi before fleeing the scene. I will refer to the various versions of this narrative as the “Robbery Story”. Not only did the appellant repeatedly tell the Robbery Story, but on February 26, 2014, seven days after the homicide, the appellant placed an anonymous call to the Crime Stoppers tip line, reporting that he had seen four men fleeing the scene of the homicide.

[3] Within days of the homicide, the police located the gun used to kill Mr. Niazi. The appellant had hidden the gun in a wooded area near his home, along with the sweater that he was wearing at the time of the shooting.

[4] By the time of trial, the appellant had abandoned the Robbery Story. As he recalled the events at trial, he had shot and killed Mr. Niazi in self-defence. According to the appellant’s trial testimony, Mr. Niazi became angry over what he perceived to be a shortfall in the proceeds from their joint drug sales. Mr. Niazi pointed a firearm at the appellant. The appellant managed to wrestle the gun from Mr. Niazi, loaded it, and fired two warning shots. Undeterred, Mr. Niazi picked up a baseball bat and swung it at the appellant’s head. The appellant ducked to avoid the bat and, as he saw Mr. Niazi winding up for a second swing, the appellant shot and killed him.

[5] The autopsy revealed that Mr. Niazi was hit with at least eight shots. Three of the bullets entered his head, one entered from the back of his head and travelled through the brain. A fourth bullet went through Mr. Niazi’s heart.

[6] The appellant explained that he repeatedly told the false Robbery Story because he feared retaliation from Mr. Niazi’s family, if he admitted killing Mr. Niazi.

[7] The jury convicted the appellant of second degree murder and the trial judge imposed a sentence of life imprisonment without eligibility for parole for 14 years. The appellant appeals both his conviction and sentence. The Crown submits that both appeals should be dismissed. For the reasons that follow, I would hold that the trial judge erred in admitting some of the statements made by the appellant to the police. I would allow the appeal and direct a new trial.

II

the conviction appeal

[8] There are three issues:

• Did the trial judge err in failing to stay the proceedings on the ground that the appellant had been denied his right to trial within a reasonable time?

• Did the trial judge err in refusing to admit certain expert evidence proffered on behalf of the appellant?

• Did the trial judge err in admitting the appellant’s statements to the police made on February 19, 2014, the day of the homicide, and on March 1, 2014, the day of the appellant’s arrest?

A. Did the trial judge err in finding that there was no breach of s. 11(b) of the Charter? (R. v. Corner, [2017 ONSC 5629](https://www.minicounsel.ca/scj/2017/5629))

[9] Like many murder trials in present day Ontario, this trial took a long and winding road from charge to verdict through the seemingly ever-increasing complexities of the criminal process. However, unlike almost every other murder case, this trial’s path to completion took a detour through the Supreme Court of Canada for an interlocutory appeal brought with leave of that court by a third party while the criminal trial was ongoing. The impact of that detour on the determination of the net delay in bringing the prosecution to completion is a central issue on the s. 11(b) ground of appeal.

[10] The parties agreed that the total delay from charge to verdict was 44 months, 15 days (March 2014 to November 2017). They also agreed that a defence delay of 11 months, 1 day (May 2016 to April 2017) should be deducted from the total delay, leaving a delay of 33 months, 2 weeks. This remaining total is beyond the 30-month ceiling created in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. A net delay of over 30 months is presumptively unreasonable and the onus falls on the Crown to demonstrate that the delay was nonetheless reasonable in the circumstances.

[11] At trial, the Crown argued that two further time periods should be deducted from the 33-month delay to arrive at the effective net delay. One period of 2 months, 24 days (February 8 to May 2, 2016) was said by the Crown to be attributable to the unexpected length of time needed to complete the pretrial motions. The second time period, 5 months, 22 days (April 3, 2017 to September 25, 2017), was attributed by the Crown to the resolution of the interlocutory appeal taken to the Supreme Court of Canada by Crime Stoppers, a third party in the criminal proceedings, challenging an evidentiary ruling made during the pretrial motions.

[12] The trial judge found that both periods of time should be deducted from the total delay, resulting in a net delay of about 22 months and 17 days. The appellant concedes that if the net delay is under 30 months, he cannot demonstrate that the delay was nonetheless unreasonable within the meaning of s. 11(b) of the Charter.

[13] I need only address the delay that the trial judge attributed to the appeal taken by Crime Stoppers to the Supreme Court of Canada. In my view, the trial judge correctly held that the period between April 2017 and September 2017 was attributable to that appeal and deductible from the total delay, leaving a net delay of 27 months and 9 days.

The s. 11(b) chronology

[14] A week after the shooting on February 19, 2014, Crime Stoppers received an anonymous call from a person who said that he had information about the homicide. He indicated that he had witnessed four men at the scene of the homicide. He claimed to have seen these men leave the area of the appellant’s home and proceed to a lake where he saw them throwing various objects into the water.

[15] The Crown had evidence that the anonymous caller was in fact the appellant. The Crown contended that the false report to Crime Stoppers was intended to support the Robbery Story that the appellant had already told to the 9-1-1 operator, police officers, and several other persons. The Crown maintained that informer privilege, which attaches to the identity of a Crime Stoppers tipster, did not apply in circumstances in which the tip was made in an effort to interfere with the due administration of justice.

[16] The appellant was committed to stand trial in February 2015. On March 31, 2015, shortly after the matter had been transferred to the Superior Court of Justice, the Crown completed a pretrial conference form, indicating that it intended to rely on an alleged statement made by the appellant to the police after the shooting. This was a misleading reference to the appellant’s call to Crime Stoppers. Although the call had been answered by a police officer in his capacity as the Crime Stoppers Coordinator for the Durham Regional Police, the status of the recipient of the call as a police officer had nothing to do with the admissibility of the identity of the tipster. The admissibility of the evidence depended on the scope of the informer privilege.

[17] It is not readily apparent exactly when the Crown first made it clear that it intended to introduce evidence of the identity of the anonymous caller who had provided the tip to Crime Stoppers. A series of emails exchanged between the Crown and counsel for Crime Stoppers between late July and late August 2015 indicates that counsel for Crime Stoppers and the Crown were discussing the matter and counsel for Crime Stoppers was aware that the Crown was alleging that the call was made by the appellant.

[18] At some point before September 8, 2015, the Crown disclosed the Crime Stoppers tip sheet and related items to counsel for the appellant. On September 8, Fuerst J. signed a consent order releasing the Crime Stoppers tip sheet and related items to the appellant.

[19] At an earlier pretrial, Fuerst J. had allocated three weeks for the hearing of the pretrial motions. The pretrial motions began on November 30, 2015. The trial was scheduled for February 8, 2016.

[20] The pretrial hearing began with motions relating to the admissibility of several statements that the appellant had made to the police. The pretrial motions were not close to being completed during the three weeks allocated for their hearing. It became clear that the trial could not commence in February 2016, and that the February dates would have to be used to complete the various pretrial motions. The trial was rescheduled for May 2, 2016.

[21] The motion to admit the identity of the Crime Stoppers tipster commenced on March 29, 2016. The trial judge delivered oral reasons on April 14, 2016, holding that the Crown could lead the evidence identifying the appellant as the tipster. Written reasons were given on April 21, 2016: R. v. Corner, 2016 ONSC 2671.

[22] On March 31, 2016, during argument on the admissibility of evidence of the identity of the Crime Stoppers tipster, counsel for Crime Stoppers advised the court that, should the court grant the Crown’s motion to admit the evidence, Crime Stoppers would likely seek a stay of that order so that it could bring an appeal to the Court of Appeal. Although there is, in fact, no appeal available to the Court of Appeal, counsel’s statement put the parties on notice that Crime Stoppers could bring an interlocutory appeal if the trial judge’s decision went against Crime Stoppers’ position.

[23] On April 15, 2016, the defence brought a motion to adjourn the trial which was scheduled to begin on May 2, 2016. The defence advised that an important defence witness was unavailable. The judge hearing the request for the defence adjournment made it clear to counsel that any adjournment would inevitably be a lengthy one, given the nature of the court’s schedule. The defence provided an unequivocal waiver of any s. 11(b) rights for any delay flowing from the requested adjournment. The judge granted the adjournment and put the matter over to set a date.

[24] The parties subsequently appeared before Fuerst J. The appellant asked that the matter be adjourned until September 2017. Fuerst J. fixed a trial for April 3, 2017, 11 months after the scheduled trial date in May 2016. The appellant accepts full responsibility for this 11-month delay and agrees that it must be subtracted from the total delay for the purposes of the Jordan analysis.

[25] On June 6, 2016, Crime Stoppers brought an application for leave to appeal to the Supreme Court of Canada from the trial judge’s decision permitting disclosure of the appellant as the Crime Stoppers tipster. At this stage, the trial was scheduled to proceed ten months later in April 2017. The defence made a further request in August 2016 to delay the trial from April 2017 to September 2017. In support of its request for a further adjournment, the defence referred to the possibility that the trial could not proceed as early as April 2017 if the appeal before the Supreme Court of Canada was still pending. The request for an adjournment to September 2017 was dismissed by Fuerst J. The trial remained fixed for April 2017.

[26] In October 2016, the Supreme Court of Canada granted leave to appeal to Crime Stoppers. After a case management meeting on November 7, 2016, Fuerst J. indicated that the April 3, 2017 trial date would remain in place. However, she further noted that counsel had recognized the possibility that the Crime Stoppers appeal might still be pending before the Supreme Court of Canada in April 2017. She indicated:

[I]t was agreed that if the Supreme Court of Canada decision was not released by March 20^th, 2017, counsel would jointly ask that the trial be adjourned to start on September 25^th, 2017.

[27] The Supreme Court of Canada heard the Crime Stoppers appeal on January 20, 2017. The appeal was still under reserve on March 20, 2017, so the Crown moved, pursuant to the earlier agreement, to adjourn the matter to September 25, 2017. The defence took the position that it had earlier dates available when the September backup dates had been agreed upon and would, therefore, not waive any s. 11(b) rights in respect of the delay between April 2017 and September 2017.

[28] The court adjourned the trial to September 25, 2017. The Supreme Court of Canada released its judgment on September 22, 2017 and the trial proceeded as scheduled.

The ruling on the Crime Stoppers appeal to the Supreme Court of Canada

[29] Moldaver J., speaking for a unanimous court in the Crime Stoppers appeal, held that the trial judge had correctly determined that the appellant’s call to Crime Stoppers was admissible. The scope of the informer privilege did not extend to the identity of persons engaged in conduct intended to further criminal activity or interfere with the administration of justice: R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45, [2017] 2 S.C.R. 157, at para. 22. Moldaver J. further determined that the trial judge had adopted a reasonable procedure in determining whether the informer privilege applied: Durham Regional Crime Stoppers Inc., at para. 49. He was, however, critical of the Crown’s disclosure to the defence of the Crime Stopper tip sheet and relevant information before any determination of the applicability of the informer privilege. He concluded that the Crown was obliged to assume the existence of the privilege until a court had determined otherwise: Durham Regional Crime Stoppers Inc., at para. 48.

Should the time period between April 2017 and September 2017 be subtracted from the total delay?

[30] It is clear that no one at the trial anticipated that the trial would proceed while the appeal by Crime Stoppers remained outstanding in the Supreme Court of Canada. Had the appeal been decided by the agreed upon date in March 2017, there is no reason to think that the trial would not have proceeded as scheduled in April 2017. The appeal was on reserve at that time, and the trial was put over until September, a date that the parties had agreed upon as a backup date.

[31] In these circumstances, the delay between April 2017 and September 2017 seems directly attributable to the outstanding proceedings in the Supreme Court of Canada, something neither the Crown, nor the defence could possibly control or influence. Nor can it be gainsaid that interlocutory appeals to the Supreme Court of Canada while criminal proceedings are ongoing are rare events. In the language of Jordan, the time period between April 2017 and September 2017 would seem to be properly characterized as a consequence of a discrete exceptional event, to be subtracted from the total period of delay for purposes of determining the net delay to which the 30-month ceiling must be applied:Jordan, at paras. 69-75.

[32] The appellant submits, however, that a closer look at the trial record demonstrates that the “poor decision-making by the Crown” caused the delay, which the Crown seeks to attribute to the Crime Stoppers appeal to the Supreme Court of Canada. The appellant points to the Crown’s improper disclosure of the Crime Stoppers tip sheet and related documents to the defence very early in the process, the delay in notifying counsel for Crime Stoppers of the Crown’s intention to lead evidence identifying the tipster, and the delay in providing counsel for Crime Stoppers with documents necessary for the motion.

[33] The appellant is correct in asserting that the Crown should not have disclosed the tip and related documents to the accused without judicial authorization. It is also true that the Crown should have brought an ex parte motion, on notice to counsel for Crime Stoppers, to resolve the process by which the admissibility of the identity of the tipster would be litigated.

[34] I cannot see, however, how the addition of a further, albeit essential, procedural hearing could possibly have expedited the matter. Once the trial judge had settled on the appropriate procedure, a hearing on the merits of the Crown’s application to introduce the evidence of the identity of the tipster would still have been necessary. An ex parte process governing disclosure of the relevant documents, while essential to the preservation of informer privilege, would not have removed the need for a determination of the ultimate merits of the Crown’s application to reveal the identity of the informant. If anything, an extra layer of ex parte proceedings may have further delayed the ultimate determination of the merits.

[35] There is no reason to think that the motion to decide whether the Crown could lead evidence identifying the appellant as the Crime Stoppers tipster would have been conducted at an earlier time had the Crown not improperly disclosed the Crime Stoppers material to the defence, but instead first moved ex parte to determine the proper procedure for proceeding with its motion. Nor, can it be argued that the outcome might have somehow been different had the proper disclosure procedures been followed. There is also no reason to think that Crime Stoppers would not have gone to the Supreme Court of Canada in an attempt to vindicate its contention that the informer privilege was absolute, had the Crown followed the proper disclosure procedures. I do not agree that the Crown’s mistaken disclosure of information relating to the tip caused any delay in the ultimate determination of whether the Crown could lead evidence identifying the informant.

[36] The Crown cannot be criticized for the order in which the pretrial motions proceeded. All counsel have a role to play in organizing the conduct of pretrial proceedings: see e.g. Jordan, at para. 116. The ultimate responsibility lies with the trial judge. No one ever suggested that the Crime Stoppers motion should be given priority in the pretrial motions process. The first suggestion that the Crime Stoppers motion could lead to an interlocutory appeal which might interfere with the progress of the trial was made on March 31, 2016, very near the end of the pretrial motions. I do not accept that the Crown caused any of the relevant delay by the manner in which it brought forward the various pretrial motions.

[37] As the trial judge noted, there were Crown missteps early in the process. These included the misdescription of the tip as a statement to a police officer and delay in providing Crime Stoppers counsel with relevant documentation, including the applicable notice of motion. The Crown missteps did not, however, delay the hearing of the motion to determine whether the identity of the tipster could be revealed. Nor did the determination of that motion delay the trial. The trial judge decided that motion on April 14, 2016. The trial was scheduled to proceed on May 2, 2016. It did not proceed on that date because the defence successfully obtained an adjournment to allow for the attendance of a defence witness. Pursuant to the defence request, the matter was adjourned 11 months to April 2017. The defence had actually sought an even longer adjournment to September 2017.

[38] As the April 2017 trial date approached, the Supreme Court of Canada was reserved on the Crime Stoppers appeal. As the parties had agreed several months earlier, the trial was adjourned to September 2017 to await the decision of the Supreme Court of Canada. The Crown’s shortcomings in its conduct of the proceedings in the spring and summer of 2015 had no connection to any delay in the proceedings between April and September 2017.

[39] The trial judge correctly held that the interlocutory appeal brought with leave to the Supreme Court of Canada by Crime Stoppers was a discrete event, constituting exceptional circumstances for the purposes of the Jordan calculation. He properly deducted 5 months and 22 days (April 3, 2017 to September 25, 2017) from the total delay, leaving a net delay of slightly over 27 months. The trial judge did not err in dismissing the s. 11(b) motion.

C. The admissibility of the expert evidence

[40] At trial, the appellant sought to put forward the evidence of Dr. Julian Gojer, a psychiatrist, as expert evidence. Counsel proposed to elicit evidence from Dr. Gojer laying out the behavioural, neurological and physiological explanations for conduct associated with “fight or flight” syndrome. The defence submitted that Dr. Gojer’s explanation of the science underlying the conduct associated with “fight or flight” syndrome would assist the jury in evaluating the appellant’s testimony describing his response to Mr. Niazi’s attack on him. Dr. Gojer had never met or spoken with the appellant and did not know what the appellant’s evidence would be about his response to Mr. Niazi’s attack on him.

[41] The trial judge excluded the evidence: R. v. Corner, 2017 ONSC 412; R. v. Corner, 2017 ONSC 6468 (supplemental ruling). He held that the medical and scientific explanations offered by Dr. Gojer for behaviour associated with “fight or flight” syndrome were not necessary for the jury to properly understand and assess the appellant’s testimony about how he reacted to Mr. Niazi’s threats. The trial judge noted that the fight or flight reaction as described by Dr. Gojer was a “basic animal instinct”, which “almost everyone has experienced”. The trial judge was satisfied that a proper assessment of the appellant’s evidence describing his reaction to Mr. Niazi’s alleged attack fell well within the day-to-day experience of the jury. In his view, it was not necessary for the jury to understand the science underlying the kind of reaction by the appellant that Mr. Niazi’s alleged attack could have precipitated.

[42] In addition to concluding that Dr. Gojer’s evidence did not meet the necessity requirement for expert evidence, the trial judge further held in his supplementary ruling that he would have excluded the evidence in any event in the exercise of his gatekeeping functions. In the trial judge’s view, Dr. Gojer’s explanations of the underlying medical and scientific account for conduct associated with “fight or flight” syndrome added very little, if anything, that would assist the jury when assessing the appellant’s evidence. The trial judge was concerned that Dr. Gojer’s evidence could, however, be given unwarranted weight because it came from a person presented to the jury as an expert.

[43] On appeal, the appellant essentially renews the argument that failed at trial. At the hearing, this court did not call on the Crown. We agree with the trial judge’s conclusion. This ground of appeal fails.

D. The admissibility of the appellant’s statements

(i) Overview

[44] At trial, the Crown tendered statements made by the appellant to police officers on February 19, the day of the homicide, and on March 1-2, after the appellant’s arrest on the murder charge. The statements made by the appellant all repeated, with varying levels of detail, the Robbery Story that the appellant had told the 9-1-1 operator, his friends, family members, and family members of Mr. Niazi. In none of the statements did the appellant admit any responsibility for Mr. Niazi’s death, suggest that he had been assaulted by Mr. Niazi, or that he killed Mr. Niazi in self-defence.

[45] In his evidence, the appellant indicated that the Robbery Story was false. He had shot and killed Mr. Niazi in self-defence. The Crown argued that the timing and repetition of the false and sometimes very detailed Robbery Story, coupled with the appellant’s false “tip” to Crime Stoppers, constituted evidence from which a jury could infer that the appellant had not acted in self-defence when he killed Mr. Niazi. The Crown further submitted that the statements were admissible to challenge the credibility of the appellant’s evidence should he testify that he acted in self-defence.

[46] The statements made by the appellant fall into three groups:

• Statements made to Constable Micallef and Constable MacKinnon at the scene of the homicide on February 19, 2014 between about 4:30 p.m. and about 5:00 p.m.

• Statements made during an interview with Detective Melnick at 19 Division on February 19, 2014, beginning at about 5:50 p.m. and carrying on until about 3:00 a.m. the next morning;

• Statements made to Detective Horrocks on March 1, 2014, after the appellant was arrested and charged with murder, and on March 2 when Detective Horrocks spoke with the appellant in the cells.

(ii) The relevant Charter provisions

[47] The relevant Charter provisions are as follows:

Detention or imprisonment

9 Everyone has the right not to be arbitrarily detained or imprisoned.

Arrest or detention

10 Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right;

(iii) The proceedings at trial

[48] In a hard-fought voir dire, the defence argued that all of the statements were inadmissible, because they were involuntary, and/or infringed s. 9 and s. 10 of the Charter, and should be excluded under s. 24(2) of the Charter. The Crown took the position that all of the statements were admissible. The trial judge ultimately admitted some of the statements, and excluded others.

[49] In his ruling, the trial judge held that all of the statements made to Constables Micallef and MacKinnon at the scene of the homicide were admissible. He broke the statement made to Detective Melnick at 19 Division down into two parts. The trial judge held that the first part of the statement, commencing at 5:50 p.m. and ending at about 7:40 p.m., was admissible. However, the second part of the statement, beginning at about 7:40 p.m. and continuing until 3:00 a.m., was obtained in violation of the appellant’s Charter rights and was excluded under s. 24(2) of the Charter. The trial judge divided the statements made by the appellant to Detective Horrocks on March 1 into three parts. He ruled the first two parts admissible, and the third part involuntary and inadmissible. The trial judge also excluded the March 2 statement as involuntary on the basis that it was closely connected to the involuntary portion of the March 1 statement.

(iv) Positions on appeal

[50] On appeal, counsel for the appellant takes the position that the statements excluded by the trial judge were properly excluded, and that all of the statements admitted at trial should also have been excluded. In support of the argument that the admitted statements should have been excluded, the appellant does not advance any voluntariness arguments, but relies exclusively on Charter-based submissions.

[51] Counsel contends that the interaction between the appellant and the police from the time they arrived at the scene until the appellant’s release from the police station at 3:00 a.m. the next morning, must be viewed as a single, ongoing transaction and not as a series of isolated events. Counsel argues, that viewed this way, the appellant was unlawfully detained at the scene of the homicide no later than when he was questioned by Constable MacKinnon while sitting in Constable MacKinnon’s cruiser. He remained unlawfully detained until he was released from the police station almost 11 hours later.

[52] Furthermore, submits counsel, whether all or part of the detention was lawful or unlawful, the appellant was not, either at the scene, or at 19 Division, ever given his rights under s. 10 of the Charter in relation to the homicide investigation. Counsel contends that all of the statements made by the appellant from the time he was questioned in Constable MacKinnon’s police cruiser shortly before 5:00 p.m. until his release from 19 Division the next morning at 3:00 a.m. were obtained in a manner that infringed s. 9 and/or s. 10 of the Charter and should have been excluded under s. 24(2).

[53] With respect to the March 1 statements, counsel acknowledges that the appellant knew he was charged with murder, had received his rights to counsel, and spoken with counsel twice before he gave the statement to Detective Horrocks on March 1. Counsel submits, however, that the post-arrest statement on March 1 was sufficiently connected to the Charter-infringing statement taken on February 19 to render all of the March 1 statements “obtained in a manner” that violated the Charter. Counsel contends that, on a proper application of s. 24(2) of the Charter, the March 1 statements should have been excluded.

[54] On appeal, Crown counsel accepts the trial judge’s ruling in its entirety, including the parts of the ruling which excluded some of the statements. Most significantly, the Crown accepts the trial judge’s finding that the appellant was unlawfully detained and denied his constitutional rights under s. 9 and s. 10 of the Charter, beginning at about 7:40 p.m. and throughout the taking of the second part of the statement by Detective Melnick at 19 Division on the evening of February 19 and the early morning of February 20. The Crown also accepts that the second part of the statement was properly excluded under s. 24(2) of the Charter.

[55] With respect to the March 1 statements, the Crown argues that there is an insufficient connection between the March 1 statements and the statements made 9 days earlier on February 19 to justify the exclusion of the March 1 statements on account of the February 19 Charter breaches. The Crown does not take issue with the exclusion of the third part of the March 1 statements, and the March 2 statement, as involuntary.

(v) The statements made at the scene

(a) The evidence

[56] At 4:25 p.m. on February 19, 2014, Constable Micallef began conducting surveillance on the appellant’s home from his vehicle parked about 100 metres away. The police suspected that the appellant was a drug dealer and that he carried firearms.

[57] At about 4:31 p.m., Constable Micallef saw the appellant walking up the driveway toward his house. Two minutes later, Constable Micallef received a radio call, advising that there had been a shooting at the appellant’s residence. Constable Micallef had not heard any shots and had not seen anyone at the residence other than the appellant since his arrival at 4:25 p.m.

[58] Constable Micallef approached the home with his gun drawn and held at his side. As Constable Micallef had not heard any shots fired, he was concerned that someone may have reported a shooting, hoping to lure a responding police officer into a trap. Constable Micallef saw the appellant standing at the door to his home with his cellphone in his hand. Unbeknownst to Constable Micallef, the appellant was speaking to a 9-1-1 operator.

[59] Constable Micallef approached the appellant and conducted a quick pat-down safety search. He asked him who had been shot. The appellant responded that the person was in the garage. Constable Micallef took the appellant by the arm and walked towards the garage. He still had his weapon drawn. Constable Micallef remained concerned about his personal safety and did not want to lose control of the appellant.

[60] When the appellant and Constable Micallef arrived at the garage, the door was open. Constable Micallef could see a body on the floor of the garage. He asked the appellant who that person was and the appellant responded that it was Mr. Niazi. Constable Micallef let go of the appellant and entered the garage to examine the victim. The appellant remained on the driveway.

[61] Constable Micallef was only in the garage for about 15 seconds. He walked back to the appellant and asked him what happened. The appellant told Constable Micallef that intruders, intent upon stealing the marihuana belonging to the appellant and Mr. Niazi, had shot and killed Mr. Niazi. The appellant had his cellphone with him and was still connected to 9-1-1.

[62] Constable Micallef had holstered his weapon before he exited the garage. He did not believe that the appellant was a suspect in the shooting and, consequently, did not provide him with his right to counsel or give him a caution. Constable Micallef’s only physical contact with the appellant was when he held his arm as they walked along the driveway toward the garage. He described the appellant as cooperative. Constable Micallef had no interaction with the appellant after Constable MacKinnon arrived on the scene.

[63] Constable MacKinnon was on patrol near the appellant’s home when he heard the radio call about the shooting. He arrived at the home at about 4:35 p.m. and walked up the driveway with his firearm drawn and held by his side. He saw the appellant standing on the driveway and Constable Micallef standing just inside the garage.

[64] Constable MacKinnon told the appellant to show him his hands. The appellant did so and also told Constable MacKinnon that he was on the phone with 9-1-1. Constable MacKinnon re-holstered his firearm.

[65] Constable MacKinnon asked the appellant if he had any weapons and the appellant said that he had a knife in his pocket. Constable MacKinnon performed a pat-down search and removed the knife from the appellant’s pocket. The appellant was speaking to the 9-1-1 operator and Constable MacKinnon at the same time. He told the 9-1-1 operator that his friend had been shot in the head. In response to questions from Constable MacKinnon, the appellant described the robbers as “three Middle Eastern guys”.

[66] The appellant and Constable MacKinnon walked along the driveway toward the street. Constable MacKinnon asked the appellant to get into the police cruiser at the end of the driveway. The appellant sat in the backseat of the cruiser. Constable MacKinnon told him he could end the 9-1-1 call as the police were now on the scene.

[67] The appellant sat in the backseat of the cruiser while Constable MacKinnon helped to secure the scene. It is unclear whether the backdoor of the cruiser was closed or open. About two or three minutes later, Constable MacKinnon returned to the cruiser and asked the appellant to accompany him to his cruiser a short distance away. The appellant did so. He was not advised that he had any choice in the matter. When they arrived at Constable MacKinnon’s cruiser, the appellant sat in the backseat and Constable MacKinnon sat in the front seat. The front and back doors were closed. According to Constable MacKinnon, he closed the doors of the cruiser because it was very cold outside.

[68] Once the appellant was seated in the back of Constable MacKinnon’s cruiser, Constable MacKinnon asked him for details about the shooting. The appellant told Constable MacKinnon that he and Mr. Niazi were cutting marihuana in the garage when three Middle Eastern men knocked on the door and rushed in. They shot Mr. Niazi several times and pistol whipped the appellant.

[69] According to Constable MacKinnon, the appellant told the Robbery Story in great detail. He appeared anxious and eager to tell his story. As the appellant was telling the Robbery Story to Constable MacKinnon, Constable MacKinnon was relaying the details, including descriptions of the assailants, to other officers over the police radio.

[70] At about 5:00 p.m., the appellant agreed to accompany Constable MacKinnon to 19 Division so that he could give a videotaped statement to a detective. There is no evidence that Constable MacKinnon told the appellant that he could decline the invitation to go to the police station and he was under no obligation to speak to the police. In Constable MacKinnon’s mind, the appellant was an eyewitness to a homicide with information to give to the detectives investigating the homicide. He was not a suspect as far as Constable MacKinnon was concerned when Constable MacKinnon asked him to go to the police station with him.

[71] Constable MacKinnon testified that throughout his encounter with the appellant at the scene, he considered the appellant to be a witness to, and not a suspect in, the homicide.

(b) The trial judge’s ruling (R. v. Corner, [2016 ONSC 2045](https://www.minicounsel.ca/scj/2016/2045))

[72] The trial judge was satisfied that Constable Micallef physically detained the appellant from their initial encounter at the door of the appellant’s home until Constable Micallef entered the garage to examine the body. On the trial judge’s findings, the appellant was under Constable Micallef’s physical control when Constable Micallef performed a pat-down search at the door to the residence and as Constable Micallef and the appellant moved down the driveway toward the door of the garage. The detention ended when Constable Micallef was in the garage, had holstered his weapon, and no longer had physical control of the appellant, who was standing in the driveway.

[73] The trial judge also held that the appellant was detained by Constable MacKinnon from the time Constable MacKinnon approached the appellant, who was standing on the driveway near the garage, and ordered him to “show me your hands”. That detention continued until Constable MacKinnon had completed a pat-down search of the appellant on the driveway and retrieved the knife. The trial judge was satisfied that the police actions resulted in a “significant”, but “very brief” physical detention of the appellant.

[74] The trial judge concluded that the brief physical detention of the appellant was lawful and in compliance with s. 9 of the Charter. Both officers had genuine safety concerns justifying the brief physical detention and pat-down searches of the appellant. The trial judge went on to find that the appellant’s detention had effectively ended before the officers could reasonably have given the appellant his rights under s. 10 of the Charter. The trial judge said, at para. 59:

[I]f the detention ends before the section 10 rights can reasonably be given, the underlying rationale for providing those rights is no longer in existence and it would not make sense to require police to give a person section 10 rights advice where the underlying rationale for giving that advice is no longer operative.

[75] The trial judge also determined that, apart from this very brief physical detention, the appellant was not detained physically or psychologically at any time at the scene of the homicide. In his view, the police did not assume an adversarial position with the appellant, once the brief physical detention was over, but instead treated him like a witness who had called 9-1-1 seeking police assistance and had important information to provide to the police about a shooting.

(c) Were the appellant’s rights infringed during his interaction with the police at the scene?

[76] The appellant properly concedes that the brief physical detention of the appellant by Constables Micallef and MacKinnon was justified and lawful. That detention lasted seconds and not minutes. At the time, the officers were responding to a 9-1-1 call and were engaged in the performance of their duties. They had reasonable grounds to believe that there may have just been a shooting at the scene. The officers were under a duty to respond to the 9-1-1 call and investigate. They were stepping into what could reasonably be viewed as a dangerous situation. They were entitled to take reasonable protective measures. The very brief physical detention of the appellant and the relatively unintrusive pat-down searches conducted by both officers amounted to reasonable protective measures, taken in a reasonable manner in the circumstances: R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at paras. 31-38; R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at paras. 30-33; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 34, 45; and R. v. Tim, 2022 SCC 12, 412 C.C.C. (3d) 147, at paras. 53-64.

[77] I also agree with the trial judge that there was no s. 10(b) breach during the brief physical detention. A brief delay in implementing the s. 10 rights to allow the police to address safety concerns does not run afoul of the immediacy requirement in s. 10: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 42; R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 26.

[78] As the trial judge observed, it would hardly promote the purpose of s. 9 or s. 10 of the Charter if persons were detained even when there was no longer any reason to detain them, solely so that they could be advised of their constitutional rights upon detention. When the basis for a brief physical detention is gone, the police should release the detainee, not continue what would be an unlawful detention for the purposes of advising the detainee of his s. 10 Charter right.

(d) Was the appellant detained while in Constable MacKinnon’s cruiser?

[79] The real dispute in respect of the statements made at the scene revolves around the appellant’s status after the brief physical detention ended. On the appellant’s argument, he was psychologically detained at least from the time that he sat in Constable MacKinnon’s vehicle, shortly before 5:00 p.m. On the trial judge’s finding, apart from the brief physical detention on the driveway, the appellant was not detained in any fashion during the rest of his interaction with Constables Micallef and MacKinnon at the scene.

[80] Detention for the purposes of s. 9 and s. 10 of the Charter refers to circumstances in which an individual’s liberty interests are significantly restrained by state authority. Psychological detention is established if state conduct would cause a reasonable person in the circumstances of the individual to conclude that their liberty interest was compromised such that they were under the control and direction of the police and unable to come and go as they wish: Suberu, at para. 29; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 31-32, 44; and R. v. Le, 2019 SCC 34, 2019 SCC 692, [2019] 2 S.C.R. 692, at para. 25.

[81] The “reasonable person” standard clearly connotes an objective test. However, the subjective perceptions of the individual as they relate to the interaction with the police may assist in gauging the nature and degree of any power imbalance which may exist between the individual and the officer at the relevant time: Grant, at para. 32. The appellant did not testify on the voir dire, so there is no direct evidence of how he perceived his interaction with Constables Micallef and MacKinnon.

[82] Issues relating to detention, especially psychological detention, are fact-specific and context sensitive. The concept of detention as articulated in Grant “is premised upon a practical reality of interactions between police and citizen, especially where the interaction concerns a criminal investigation”: R. v. Lafrance, 2022 SCC 32, 416 C.C.C. (3d) 183, at para. 37. In circumstances in which psychological detention is a live issue, that “practical reality” will almost always include a power imbalance in favour of the police: Lafrance, at paras. 37-38. To decide whether detention arises in a particular case demands a “realistic appraisal of the entire interaction as it developed, not a minute parsing of words and movements”: Grant, at para. 32. See also Le, at para. 27; R. v. Tessier, 2022 SCC 35, 473 D.L.R. (4th) 317, at para. 108.

[83] The ultimate determination of whether a detention arises in a given situation is a question of law, reviewable on a correctness standard: Grant, at paras. 43-44; R. v. Reid, 2019 ONCA 32, 370 C.C.C. (3d) 265, at para. 18; and Lafrance, at para. 23. However, to the extent that the determination of that question rests on findings of fact, as it almost inevitably will, the trial judge’s factual findings are owed the usual deference on appeal. An appellate court can interfere with findings of fact only if a finding is tainted by a material misapprehension of evidence, a failure to consider material evidence, or if the finding cannot reasonably be supported on the evidence: Grant, at paras. 43-45.

[84] The court in Grant, at paras. 30-31, and the many cases that have followed Grant, identify three broad categories which capture the many specific factual considerations relevant to the psychological detention inquiry. Those categories are:

• The circumstances giving rise to the encounter as they would reasonably be perceived by the individual;

• The nature of the police conduct during the encounter; and

• The particular circumstances or characteristics of the individual, including things like age and minority status.

See e.g. Le, at para. 31; Tessier, at para. 105; and Lafrance, at para. 22.

[85] The categories identified in Grant are not mutually exclusive. Some factual considerations may fit into more than one. Nor, can I accept the Crown’s submission, that the second category, the nature of the police conduct during the encounter, is limited to conduct known to the individual. The nature of the conduct, in and of itself, may shed light on whether an individual is, on an objective assessment of the totality of the circumstances, detained by the police. For example, by the time the appellant arrived at the interview room at 19 Division, the police had decided to test his hands for gunshot residue. Even though the appellant was unaware of the police intentions, their decision to test for gunshot residue was relevant, both to whether objectively viewed the appellant had become more than merely a witness to a homicide in the eyes of the police, and to whether the appellant was free to leave the company of the police if he so chose. The gunshot residue test would have no value to the police unless they maintained control over the appellant until the test was administered.

[86] The trial judge, at para. 36, expressly referred to the three “Grant” categories. I will address each as they relate to the appellant’s interaction with Constables Micallef and MacKinnon at the scene.

[87] The first category, the circumstances giving rise to the encounter between the appellant and the police at the scene, strongly supports the conclusion that the appellant was not detained at the scene. The appellant had called 9-1-1 to report that his friend had been shot and killed by intruders. By placing the call, the appellant was clearly requesting the assistance of the police, and no doubt expecting that they would attend at his residence. When the police arrived at the scene of the homicide moments later, the appellant was still speaking to the 9-1-1 operator and giving her information about the shooting. After the brief physical detention described above, the police did exactly what a reasonable person who had just called 9-1-1 to report a shooting would expect the police to do. They asked the appellant what happened, and the appellant told them the Robbery Story. Constable MacKinnon then sought further details of the Robbery Story to assist in the search for the assailants: see e.g. R. v. Teng, 2021 ONCA 785, 158 O.R. (3d) 193, at para. 130; R. v. Ranhotra, 2022 ONCA 548, at para. 38.

[88] Turning to the second category in Grant, the nature of the police conduct, the trial judge found that the police interaction with the appellant after the very brief physical detention had ended, was not confrontational, either in a physical sense, or in terms of the attitude of the police toward the appellant. The officers, particularly Constable MacKinnon, who had more to do with the appellant than Constable Micallef, treated the appellant like someone who had called 9-1-1 to report a crime and who had important information to give to the police about a serious crime. Constable MacKinnon’s questioning in the cruiser was in no way accusatory, but rather solicited a more detailed description of the intruders to assist in the police search for the assailants. The trial judge, at para. 40, succinctly laid out his conclusion with respect to the nature of the interaction between the appellant and the officers at the scene:

It would have been apparent to a person in Mr. Corner’s position at this point, that police were not attempting to detain him, but rather to solicit information as part of their investigation.

[89] The appellant submits that by placing the appellant in his cruiser, Constable MacKinnon physically detained the appellant. He refers to R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, a case in which a person in the back of a police cruiser was found to be detained.

[90] The location of an individual when questioned by the police is part of the totality of the circumstances to be considered when determining whether that individual was detained: Grant, at para. 44; Le, at paras. 31, 43; Lafrance, at para. 34; and Tessier, at para. 108.

[91] The facts as found by the trial judge are important. He did not conclude that Constable MacKinnon placed the appellant in the cruiser. The trial judge found that Constable MacKinnon asked the appellant to sit in his cruiser so that Constable MacKinnon could get a more detailed description of the homicide. Constable MacKinnon explained that it was too cold on that late February afternoon to have that conversation while standing outside. The trial judge accepted this evidence. In my view, a reasonable person, having called 9-1-1 to report the shooting, would expect to report the details of that event to the investigating officers. An invitation to do so in the relative comfort of the police cruiser would not be viewed, by a reasonable person in the accused’s circumstances, as an intrusion upon the accused’s liberty interests.

[92] Constable MacKinnon’s conduct once the appellant was in the cruiser fully supported his evidence about his intentions when he asked the appellant to get into the cruiser. Constable MacKinnon took a detailed account of the robbery from the appellant, complete with descriptions of the assailants. He then repeated much of that information over the police radio, just as one would expect him to do having received pertinent information from an eyewitness to a serious crime.

[93] I must also reject the appellant’s submission that Constable MacKinnon’s decision to invite the appellant to sit in the cruiser, as opposed to inviting him to go into the residence to obtain the relevant information, is indicative of a detention. The police had just arrived on the scene. The residence was considered part of the crime scene and had not yet been secured by the police.

[94] The appellant further contends that the trial judge failed to give proper consideration to Constable MacKinnon’s evidence that had the appellant walked away from the scene, Constable MacKinnon would have gone after him. The appellant suggests that Constable MacKinnon’s response to this hypothetical question provides evidence that the appellant was detained.

[95] I reject this submission. First of all, as I understand the evidence, Constable MacKinnon testified that he would go after the appellant and ask him to come back and give a statement. That attitude is hardly consistent with a detention. In any event, what Constable MacKinnon may or may not have done, or believed, in a situation that never arose, is not particularly probative of whether a reasonable person in the appellant’s circumstances would have believed he was detained: see e.g.Reid, at para. 44. See also Lafrance, at paras. 26-27.

[96] Counsel for the appellant next submits that Constables Micallef and MacKinnon must have considered the appellant a suspect from the moment that they encountered him at the residence. The police knew the appellant was a drug trafficker and was believed to possess firearms. Counsel contends, that in those circumstances, the police would immediately view the appellant as a suspect.

[97] The trial judge considered this factor and determined that it did not tip the balance in favour of detention. It is important to bear in mind that the test for detention is objective. The police conduct, not what the police may or may not have believed, is the important consideration. As the trial judge observed, the police conduct at the scene was consistent with the treatment afforded to a witness who had placed a 9-1-1 call reporting a serious crime and requesting police assistance.

[98] I come now to the third category laid down in Grant, the appellant’s personal circumstances. The trial judge did not refer to the appellant’s personal circumstances when considering whether the appellant was detained at the scene. He did refer to the appellant’s age (22) and his “considerable experience with the criminal justice system” when considering whether the appellant was detained at the police station. The trial judge made no reference to the appellant’s Indigeneity at any stage of his ruling on the admissibility of the statements.

[99] A person’s prior experience, or lack of experience, with the police in a similar circumstance can have relevance to the detention inquiry because the reasonable person is placed in the shoes of that individual. An individual who has considerable experience in face-to-face adversarial encounters with the police may have a better understanding of his rights and the limits of police authority. This understanding may operate to reduce the power imbalance found in most adversarial encounters between an individual and the police. It is equally true, however, that a person with those same prior experiences may have come to expect that the police will assume control of everyone at the scene, and that it is neither wise, nor helpful to take issue with the police exercise of their powers. Prior experience with the police in similar circumstances can cut both ways on the question of what a reasonable person in the appellant’s circumstances would perceive or not perceive about his entitlement to walk away from the scene: Lafrance, at paras. 60-62.

[100] In this case, the appellant’s prior experience with the police included several arrests. In those situations, the appellant was the target of coercive police authority. In this case, the appellant called the police to report a crime and request their attendance and assistance. His very different prior experiences would not have had a significant impact on how a reasonable person with those prior experiences would have perceived the interaction with the police when they arrived at the scene in response to the appellant’s request.

[101] An individual’s age can also be a relevant consideration in the “Grant” analysis. I would not, however, ascribe any significant weight to this consideration as it relates to the appellant’s interaction with the police at the scene. The appellant is a young adult. It is not apparent to me how the appellant’s age assists in assessing the nature of the interaction between the appellant and the police who attended at his residence in response to his 9-1-1 call.

[102] The appellant is an Indigenous person. This circumstance can weigh significantly into a detention analysis. The historical discrimination against and the mistreatment of Indigenous persons in the criminal justice system cannot help but affect how the hypothetical reasonable Indigenous person would view a particular interaction between the police and that person: see Lafrance, at paras. 55-59.

[103] There was no evidence before the trial judge at the time of the pretrial motions that the appellant was an Indigenous person. The trial judge cannot be faulted for not taking the appellant’s Indigeneity into account. I do not understand counsel for the appellant to suggest that the appellant’s Indigeneity was material to whether the appellant was detained at the scene.

[104] The trial judge correctly laid out the law applicable to detention for the purposes of s. 9 of the Charter. His findings of fact relevant to the interaction between the appellant and the police at the scene reveal no material misapprehension of the evidence, and are not unreasonable. His finding that the appellant was not detained at the scene should stand. It follows that the rights in s. 10 of the Charter were not engaged. There was no Charter breach at the scene.

(vi) The Statement at 19 Division

(a) The Evidence

[105] Constable MacKinnon and the appellant proceeded to 19 Division. They entered through the front door and Constable MacKinnon took the appellant directly to what he referred to as a “soft interview room”. According to the police evidence, this room was used for questioning witnesses and was less spartan than the rooms used for questioning persons under arrest.

[106] Once the appellant was in the interview room, which is a non-public part of the police station, he was not free to move about the rest of the police station or come and go as he pleased. If he wanted to use the washroom, go outside, or go back to the general waiting area to speak to the other individuals in the waiting room, the appellant needed the permission of the police to leave the interview room and pass through the non-public part of the police station. With the exception of a brief visit with his parents in the early morning hours of February 20, only police officers came and went from the interview room in which the appellant was seated for almost ten hours.

[107] Although the evidence is not entirely clear, at some time shortly after the appellant arrived at 19 Division and before he went into the interview room, the police obtained his cellphone and wallet. Constable MacKinnon could not recall whether he had asked the appellant for his wallet and cellphone, but acknowledged that he may have done so.

[108] Because the appellant did not testify, there is no evidence from him as to how the police came to be in possession of his wallet and cellphone, or why they wanted these items. I cannot, however, accept the suggestion that the appellant may have asked the police to hold onto his wallet and cellphone. There is no evidence that he gave his cellphone and wallet to the police, and it makes no sense, that having gone to the police station to give a statement, the appellant would ask the police to take possession of his wallet and cellphone. The police eventually returned the appellant’s wallet to him the next morning when he left the station at 3:00 a.m. They kept his cellphone.

[109] By the time Detective Melnick joined the appellant in the interview room at about 5:50 p.m., the homicide investigation was moving forward on several fronts. Detective Melnick was aware that the appellant was a drug dealer and believed by the police to possess firearms. He also knew that the police were investigating the appellant’s residence as a crime scene and intended to test the appellant’s hands for gunshot residue. According to Detective Melnick, this was standard practice for anyone who had been at the scene of a shooting. Detective Melnick testified that he was not aware that the police were in the process of obtaining a search warrant for the appellant’s home.

[110] Before Detective Melnick began the interview, the police offered to get the appellant some food. The appellant was not told that he could go and get his own food and return to the interview if he so wished. The appellant placed his food order through the police and dinner was delivered to him while he was sitting in the interview room. He ate it while being questioned by Detective Melnick.

[111] Detective Melnick maintained that when he began the interview, he considered the appellant a witness only and, therefore, had a KGB caution administered. In the caution, the appellant acknowledged that he was under an obligation to tell the truth during the questioning. Detective Melnick asked the appellant, “what brings you to the police station?”. He followed up with, “what happened?”. The appellant responded with a detailed version of the Robbery Story, complete with descriptions of the assailants, background information about his drug dealings, and a list of various enemies that he and Mr. Niazi had made over the years in the drug business. Detective Melnick testified that he had a “great rapport” with the appellant and thought that they were “pretty comfortable with each other”. The atmosphere in this first part of the interview was not adversarial and Detective Melnick’s questions were not accusatory.

[112] At no time before 7:40 p.m. did Detective Melnick tell the appellant that he had a right to remain silent, a right to speak with counsel, or a right to discontinue the interview and leave the police station if he so wished. Nor did Detective Melnick advise the appellant that the police intended to test his hands for gunshot residue, or that his residence was considered a crime scene. According to Detective Melnick, he did none of these things because he viewed the appellant as a witness and not a suspect, and did not think the appellant was detained.

[113] At about 7:40 p.m., Detective Melnick appeared to be in the process of winding down the interview with the appellant. He asked the appellant to take a minute and think if there was anything that he had forgotten to tell him. The appellant replied, “Is there somewhere I could walk around while I think”. The Detective replied, “I can’t really let you leave”.

[114] The appellant then requested permission to use the bathroom. Detective Melnick told him that he could use the bathroom, but could not wash his hands, presumably because the police had not yet tested his hands for gunshot residue. Detective Melnick took the appellant to the bathroom and kept him under observation while he was there.

[115] Detective Melnick returned the appellant to the interview room after the appellant had finished in the bathroom. The appellant was not asked whether he had anything else to say, nor was he invited to leave the station if he did not. Instead, he was left sitting in the interview room while Detective Melnick received an update on the ongoing investigation from his colleagues. While the appellant was sitting in the interview room waiting for Detective Melnick to return, another officer entered the room and performed a gunshot residue test. She did not ask the appellant’s permission to perform the test and did not tell him he could refuse to submit to the test. This officer believed that the appellant was under arrest at the time.

[116] When Detective Melnick returned to the interview room some time later, his attitude toward the appellant had changed. He confronted the appellant with inconsistencies between the appellant’s statements and information that had been provided by other witnesses. Detective Melnick made it clear to the appellant that he did not believe the Robbery Story that the appellant had earlier told him.

[117] Detective Melnick told the appellant that he had a right to remain silent and that anything he said would be admissible in court. He also told the appellant that he had a right to speak to a lawyer. Detective Melnick, however, linked both the right to silence and the right to a lawyer to a potential obstruction of justice charge should the appellant be lying to him. Detective Melnick did not caution the appellant or provide him with his right to counsel in respect of the homicide.

[118] Throughout the rest of the interview, Detective Melnick insisted that the appellant was not telling the truth about what happened. In the face of Detective Melnick’s persistent questioning, the appellant changed some of the details of the Robbery Story, but otherwise maintained that story. A second detective joined Detective Melnick during the interview. That detective assumed a confrontational attitude toward the appellant. He asked the appellant flat out, “[d]id you shoot him?” The appellant insisted that he had not.

[119] The appellant remained in the interview room for several more hours. He was allowed to leave the station at about 3:00 a.m. Detective Melnick told the appellant that the police were keeping his clothing. He also asked the appellant for his cellphone number. The police already had his cellphone.

[120] Detective Melnick insisted that throughout this entire process, he regarded the appellant as a witness and did not consider the appellant to be detained.

(b) Was the appellant detained at 19 Division before about 7:40 p.m. on February 19?

[121] The appellant arrived at 19 Division sometime shortly after 5:00 p.m. with Constable MacKinnon. Constable MacKinnon escorted him directly into an interview room in the non-public part of the police station. Other potential witnesses were sitting in the public waiting area of the station. For the next ten hours, until 3:00 a.m. the next morning, the police maintained total control over the appellant. With one brief exception for a supervised visit to a washroom, and a second exception for a brief visit with his parents, the appellant remained in a police interview room exclusively in the company of police officers for ten hours.

[122] The trial judge found, and his finding is not challenged on appeal, that the appellant was detained for most of the time that he was in the interview room. On the trial judge’s finding, the detention began at about 7:40 p.m., almost two hours after the interview with Detective Melnick began, and about seven hours before he was released from the interview room.

[123] Counsel for the appellant submits that the trial judge wrongly held that the appellant was not detained for the first two hours that he was in the interview room. Counsel submits, that apart from the tone of some of the questions asked after Detective Melnick returned to the interview room, nothing changed throughout the time that the appellant was in the interview room. He remained under the total control of the police throughout that time. In the language of Grant, a reasonable person in the appellant’s position would believe, from the time Detective Melnick entered the interview room, that he was not going anywhere unless, and until, Detective Melnick allowed him to do so.

[124] I agree with the submissions of counsel for the appellant. The totality of the circumstances compels the conclusion that the appellant was detained from the time he was placed in the interview room.

[125] The total control by the police of an individual and the isolation of that individual from non-police personnel will often generate the kind of power imbalance that would cause a reasonable person to believe that he is no longer free to come and go as he pleases: Grant, at paras. 21-22, 44; Le, at para. 50; and Lafrance, at paras. 43-51. This is especially true when the police do and say nothing to dispel the perception flowing from that power imbalance.

[126] On the evidence, the police had total control of the appellant from the time he entered the police station. They immediately isolated him from all non-police personnel. He was never told that he had any choice in the matter. The police control extended to what he would eat, when he would eat it, and when he would be allowed to go to the bathroom.

[127] The total control that the police had assumed over the appellant while he was in the interview room is made clear from the exchange between the appellant and Detective Melnick at about 7:40 p.m. The appellant indicated that he would like to take the opportunity to walk around and think before continuing with the interview. Detective Melnick said “I can’t really let you leave”. While the Crown suggests that this is an indication only that the appellant could not move around in the non-public part of the police station, Detective Melnick’s comment is not qualified in any way. Surely, had Detective Melnick intended to tell the appellant that, while he could not walk around in the non-public part of the police station, he could leave the building and go wherever he wanted to go, Detective Melnick would have told the appellant exactly that.

[128] Detective Melnick’s indication to the appellant that he could only go to the washroom under police supervision is a further indication of the total control that the police had assumed over the appellant.

[129] The exchange between Detective Melnick and the appellant at about 7:40 p.m. also sheds light on the appellant’s perception of his situation. He believed that he needed permission from the police to leave the interview room and that he also needed permission to go to the bathroom. While the individual’s perceptions are not determinative of the detention question, they can shed some light on how a reasonable person in the individual’s circumstances would perceive his situation: Grant, at para. 32; Le, at para. 113.

[130] The trial judge interpreted the words of Detective Melnick as indicating that the appellant’s right “to leave the police station had ended” at about 7:40 p.m. With respect, this is an unreasonable inference from the evidence. Nothing in the evidence suggests that Detective Melnick would not have made exactly the same statement had the appellant indicated that he wanted to leave the interview room at any time between 5:50 p.m. and about 7:40 p.m. The only reasonable inference is that Detective Melnick was not prepared to allow the appellant to leave the interview room unattended by the police at any time until Detective Melnick was finished questioning him. It is mere happenstance that the appellant made the request which precipitated Detective Melnick’s clear indication that the appellant was not free to leave the interview room at about 7:40 p.m., as opposed to some earlier time in the interview.

[131] The evidence also indicates that the police no longer regarded the appellant as simply an eyewitness with information to provide. Their investigation was expanding to include the appellant. The decision to test the appellant’s hands for gunshot residue, the decision to keep the appellant’s cellphone and wallet, the decision to treat his residence as a crime scene, and the decision to seek a search warrant for his residence, all imply that the police had come to see the appellant as at least potentially involved in the homicide. To some extent at least, the police efforts had turned to gathering evidence potentially relevant to the appellant’s possible involvement in the homicide.

[132] The decision to test the appellant’s hands for gunshot residue is an indication that the appellant was no longer regarded as simply an eyewitness. The decision to test for gunshot residue is also significant to the question of detention in a second way. Clearly, the police were going to test the appellant for gunshot residue and had no intention of asking his permission. Equally clear, there was no point in testing for gunshot residue unless the police maintained control over the appellant’s movements until the test was performed. The police decision to test the appellant for gunshot residue ensured that he would not be free to leave the police station, at least until the test was completed.

[133] The police possession of the appellant’s wallet and cellphone throughout the time when he was in the interview room is also of some significance when considering whether he was detained. The trial judge focused almost exclusively on whether the appellant had established that the police had seized the cellphone and wallet within the meaning of s. 8 of the Charter. The trial judge was not satisfied that the evidence established a seizure.

[134] The evidentiary significance of the police possession of the appellant’s wallet and cellphone did not depend on whether the police had seized the wallet and cellphone. There is no question that the police had the wallet and cellphone from the time that the appellant entered the interview room until 3:00 a.m. the next morning. While the absence of evidence from the police or the appellant makes it impossible to say exactly how the police came to possess the cellphone and wallet, the only reasonable inference is that the police acquired the cellphone and wallet as a result of a police initiative. The appellant did not offer the police his wallet and cellphone.

[135] The police possession of the appellant’s cellphone suggests an interest in his movements and communications prior to and after the homicide. In addition, by taking possession of the appellant’s cellphone and wallet, objects most people would regard as their most important personal property, the police further secured their control over the appellant and his isolation from others while he was in the interview room.

[136] Detective Melnick’s actions as the interview appeared to be winding down at about 7:40 p.m. are a further indication that the appellant was not free to leave the interview room while being questioned. Detective Melnick appeared to have finished his questions. He did not, however, advise the appellant that he could leave if he had nothing more to tell the police. Instead, he left the appellant sitting in the interview room while he went to confer with his colleagues who were involved in the ongoing investigation. After some time, Detective Melnick returned to the interview room where the appellant had been sitting waiting for him. Detective Melnick was armed with many more questions and a different attitude.

[137] In laying out the steps that the police took which had the effect of controlling and isolating the appellant, I make no comment on the reasonableness of any of those actions. From the police perspective, these steps may have been entirely appropriate. However, as counsel for the appellant submits, the reasonableness of the police conduct is not the focal point of the detention inquiry and indeed, it has little to do with it. The detention inquiry is concerned with the impact of the totality of the circumstances, including the police conduct on the perception of a reasonable person in the accused’s circumstances: Grant, at para. 32; Le, at para. 116.

[138] For example, it may have made sense from the police perspective to take the appellant directly to an interview room rather than allowing him to sit in the public area of the police station with other potential witnesses. Nonetheless, the police conduct would certainly contribute to a sense of isolation and lack of control that a reasonable person in the shoes of the appellant would feel as he was escorted past other potential witnesses and directly into the non-public area of the police station. It would, of course, be open to the police to explain to someone in the appellant’s position why he was being taken directly to an interview room. That explanation, if offered, could offset, to some degree at least, the sense of isolation and lack of control that the reasonable person in those circumstances would otherwise experience.

[139] I referred earlier in these reasons to the appellant’s age and his prior experiences with the police as personal circumstances that can have relevance to the detention inquiry. Although I am satisfied that the appellant’s age and prior experience with the police did not factor into the detention inquiry at the scene, those factors do assist when considering whether the appellant was detained at the police station. A reasonable young person with a history of adversarial interactions with the police would feel, with particular force, the isolation, control, and police domination flowing from the treatment afforded to the appellant at the police station. A reasonable person, fixed with those personal characteristics, might well conclude that he was going nowhere until the police were finished questioning him. I would add that had the trial judge been made aware of the appellant’s Indigeneity, that, too, would have been material to whether the appellant was detained during the first part of the interview with Detective Melnick.

[140] In summary, the police assumed total and exclusive control over the appellant from the time he arrived at the police station. They relinquished that control only some ten hours later when the appellant left the station. That control was clearly designed to isolate the appellant from anyone other than the police while the police were engaged in taking various investigative measures, some of which targeted at the appellant. The police never told the appellant that he was free to leave the police station if he wished to do so.

[141] The appellant was detained within the meaning of s. 9 of the Charter from the time he entered the interview room. The appellant was not informed of the reason for his detention, advised of his right to counsel, or given an opportunity to exercise that right. Consequently, his rights under ss. 10(a) and 10(b) of the Charter were also infringed.

(c) Should the statements made at 19 Division to Detective Melnick before about 7:40 p.m. be excluded under s. 24(2)?

[142] Section 24(2) of the Charter provides that if evidence is obtained in a manner that infringes or denies the Charter right of the accused, the evidence:

[S]hall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[143] Admissibility under s. 24(2) is determined by the well known three-stage analysis first laid out in Grant, at paras. 67-87, and further developed in a series of decisions from the Supreme Court of Canada: see e.g. Lafrance, at paras. 89-101; R. v. Beaver, 2022 SCC 54, 420 C.C.C. (3d) 421, at paras. 116-135; Tim, at paras. 74-80; and R. v. McColman, 2023 SCC 8, 423 C.C.C. (3d) 423, at paras. 53-56.

[144] The three “Grant” factors are:

• The seriousness of the Charter-infringing conduct;

• The impact of the Charter infringement on the individual’s Charter-protected interests; and

• Society’s interest in an adjudication of the case on its merits.

[145] My s. 24(2) analysis can be relatively brief. After finding the appellant’s rights under ss. 9 and 10 of the Charter were infringed at about 7:40 p.m. during the interview with Detective Melnick and over the next several hours, the trial judge, applying Grant, held that the statements made after about 7:40 p.m. should be excluded under s. 24(2).

[146] In excluding the statements made after about 7:40 p.m., the trial judge described the Charter-infringing conduct, resulting in breaches of s. 9 and s. 10 of the Charter, as “serious” and favouring the exclusion of the evidence. He came to the same conclusion with respect to the negative impact of the infringements on the appellant’s constitutionally-protected rights. These too were serious and favoured exclusion. Finally, the trial judge held that the third factor, society’s interest in an adjudication on the merits, favoured receiving the evidence. Even if the statements were excluded, the appellant had told the Robbery Story to many people in addition to Detective Melnick. Their evidence remained available. The trial judge went on to hold that the balancing of the three factors favoured exclusion of the evidence.

[147] The Crown does not take issue with the trial judge’s s. 24(2) analysis as it relates to the statements after about 7:40 p.m. In my view, the trial judge’s analysis applies with equal, and indeed greater force, when the Charter infringements are moved forward to 5:50 p.m., at the commencement of the interview.

[148] Moving the time of the unconstitutional detention forward two hours exacerbates the negative impact of the unlawful detention on the appellant’s liberty interests. More importantly, the failure to advise the appellant of his right to counsel at the outset of his detention denied the appellant the opportunity to obtain legal advice at the most crucial point in time. He needed advice on two matters – was he required to remain in the police station and should he speak to the police?

[149] It is not unreasonable to think that, had the police complied with their obligations under s. 10 of the Charter, the appellant may have contacted counsel and after advice from counsel, at least asked Detective Melnick whether he was required to remain at the station. Assuming Detective Melnick would have taken the same position with the appellant that he ultimately took on the witness stand, Detective Melnick would have told the appellant that he was not detained and had no obligation to stay at the police station. On this scenario, the unlawful restriction on the appellant’s liberty would have ended relatively shortly after he arrived at the police station, and before he was put at risk of speaking to the police about the homicide without the advice of counsel and potentially incriminating himself in the responses he gave.

[150] It also cannot be assumed that had the police complied with their obligations and had the appellant been afforded an opportunity to speak with a lawyer, that he inevitably would have told the same Robbery Story to Detective Melnick. It is true that the false Robbery Story appears to have been conceived by the appellant very shortly after the homicide and put forward by him in a concerted effort to mislead everyone about the circumstances of the offence. However, it is also true that nine days later, after having had the opportunity to speak with his lawyer, the appellant invoked his right to silence on more than one occasion when being questioned by Detective Horrocks. He may have done the same thing when initially questioned by Detective Melnick, had he been given the opportunity to speak with counsel.

[151] I accept that the causal link between the statements made to Detective Melnick and the Charter breaches is, in the circumstances, not particularly strong. However, the force of the causal connection between the breach and the compromised evidence is only one factor to be taken into account in assessing the impact of the Charter breach on the accused’s Charter-protected interests: Beaver, at para. 125.

[152] In argument, Crown counsel submitted that the state misconduct, even assuming that the breaches occurred at the commencement of the interview, was mitigated by Detective Melnick’s good faith belief that the appellant was not detained. Counsel seems to use the phrase “good faith” to mean the absence of bad faith. Bad faith significantly increases the seriousness of Charter-infringing conduct. However, the absence of bad faith does not mitigate the breach or dictate a finding of good faith: Le, at para. 147.

[153] Detective Melnick based his belief that the appellant was not detained on his perception that he and the appellant had a good relationship during the interview. The appellant was cooperative and the interview was non-adversarial. Detective Melnick’s subjective belief about his relationship with the appellant was not determinative of the appellant’s status. Detective Melnick was obliged, as an experienced officer, to make an objective assessment of the entirety of the circumstances, bearing in mind the accused’s personal characteristics. It is difficult to accept that anyone looking at the situation in the interview room from an objective perspective would not, at the very least, conclude that the appellant’s circumstances were sufficiently uncertain to call for some clarification by the police as to his status. Detective Melnick’s failure to do anything to clarify the appellant’s status as they sat in the interview room suggests, either that he had a material misunderstanding of the nature of a detention, or he preferred to avoid the topic unless, and until the appellant raised it.

[154] I would not characterize Detective Melnick’s failure to comply with his Charter obligations as wilful, or even reckless. His failure to advise the appellant that he was detained, and could contact counsel was, however, an unreasonable error in respect of what is a fundamental police power and obligation. The error is not indicative of “good faith”: Tim, at paras. 84-85.

[155] In summary, the breaches of ss. 9 and 10 of the Charter that occurred when the interview began at about 5:50 p.m. only exacerbated the seriousness of the Charter-infringing conduct identified by the trial judge as occurring after about 7:40 p.m. The impact of the breaches beginning at 5:50 p.m. on the appellant’s Charter-protected interests, also rendered more serious the overall impact of the breaches which occurred while he was in the police interview room. Exclusion of the statements made between 5:50 p.m. and about 7:40 p.m. does remove some additional reliable evidence from the Crown’s case. There remains, however, significant evidence of the appellant’s fabrication of the Robbery Story.

[156] The s. 24(2) calculus, as applied to the breaches beginning at 5:50 p.m., is essentially the same as the trial judge’s analysis. The first two Grant factors favour exclusion of the statements made between 5:50 p.m. and at about 7:40 p.m. The third Grant factor favours, although not strongly, the admission of the evidence. As with the statements made after about 7:40 p.m., the balancing of the factors favours the exclusion of the statements made between 5:50 p.m. and about 7:40 p.m.

(vii) The March 1–2 Statements

(a) The evidence

[157] The appellant was arrested by Detective Melnick at around noon on March 1. He was charged with second degree murder, advised of his right to counsel, and spoke with counsel on two occasions before being interviewed by Detective Horrocks.

[158] The trial judge divided the March 1 statements into three parts. The first part lasted about an hour (5:39 p.m. – 6:47 p.m.). Detective Horrocks did almost all of the talking during this part of the interview. He made it clear to the appellant that the police did not believe the Robbery Story. He also repeatedly advised the appellant that the police had overwhelming evidence implicating the appellant in the homicide. Detective Horrocks tried various ways to get the appellant to move away from the Robbery Story. The appellant said little but maintained the Robbery Story.

[159] The second part of the statements occurred when the police took the appellant to a park area where they had previously found the gun used in the homicide. The police pretended to find the gun when they were in the park with the appellant, presumably hoping to elicit an incriminatory statement.

[160] The third part of the interview occurred after the police returned to the station with the appellant. The trial judge ruled this part of the statements involuntary and inadmissible. He made the same ruling in respect of the statement made in the cells on March 2.

(b) Should the March 1 statements have been excluded under s. 24(2) of the Charter?

[161] There is no doubt that the appellant was lawfully detained on March 1 when interviewed by Detective Horrocks. There is equally no doubt that he had been properly advised of the nature of the charge, his right to counsel, and had spoken to counsel of his choice on two occasions after his arrest and before speaking to Detective Horrocks. However, as the trial judge recognized, a prior Charter breach may taint subsequently obtained evidence even in the face of Charter-compliant police conduct subsequent to the initial breach.

[162] There may be a sufficient nexus between an earlier Charter breach and evidence subsequently obtained after compliance with the Charter to warrant the conclusion that the evidence subsequently acquired by the police was “obtained in a manner” that infringed the accused’s Charter rights. If the nexus is established, the evidence is subject to exclusion under s. 24(2) if the appellant can demonstrate that the admission of the evidence would bring the administration of justice into disrepute: Beaver, at paras. 95-115; Tim, at paras. 76-82.

[163] In Beaver, Jamal J., for the majority, at para. 95, explained the threshold requirement in s. 24(2) in these terms:

Section 24(2) of the Charter is engaged only when the accused first establishes that evidence was “obtained in a manner” that breached the Charter. Determining whether evidence was “obtained in a manner” that infringed the Charter involves a case-specific factual inquiry into the existence and sufficiency of the connection between the Charter breach and the evidence obtained. There is “no hard and fast rule”. [Citations omitted.]

[164] Jamal J., at para. 97, went on to consider the “fresh start” concept developed in the authorities:

A large body of appellate jurisprudence and academic commentary has recognized that evidence will not be “obtained in a manner” that breached the Charter when the police made a “fresh start” from an earlier Charter breach by severing any temporal, contextual, or causal connection between the Charter breach and the evidence obtained or by rendering any such connection remote or tenuous. In some cases, the police may make a “fresh start” by later complying with the Charter, although subsequent compliance does not result in a “fresh start” in every case. The inquiry must be sensitive to the facts of each case. [Citations omitted.]

[165] The trial judge referred to the controlling jurisprudence as it existed at the time of the trial. Based on his factual findings, the trial judge was satisfied that the March 1^st statements were not sufficiently connected to the Charter breaches some nine days earlier to warrant a finding that the March 1^st statements were obtained in a manner that violated the Charter. Consequently, s. 24(2) was not engaged and the March 1^st statements were admissible.

[166] Several facts favour the trial judge’s conclusion:

• There was a nine-day break between the Charter breaches (February 19) and the statements (March 1);

• The appellant was not in custody during that nine-day time period;

• Different officers were involved in taking the February 19 statement and the March 1 statements;

• Prior to the March 1 statements, the appellant was arrested and advised that he was charged with the murder of Mr. Niazi.

• Also prior to the March 1 statements, the appellant was advised of his right to counsel and given an opportunity to exercise that right.

• The appellant exercised his right to counsel on two occasions before the interview with Detective Horrocks by consulting with counsel of his choice;

• It is clear that the appellant received effective legal advice. On more than one occasion during the March 1 statements, the appellant declined to answer Detective Horrocks’ questions, indicating that he was acting on the advice of counsel.

• Detective Horrocks told the appellant at the outset of the interview that any previous contact with Detective Melnick or other police officers would have no impact on their interview. Detective Horrocks told the appellant that he was the person in charge of the investigation, and the appellant should pay no heed to any prior threat or promise made by any police officer.

• While there was some contextual connection between the February 19 statement and the March 1 statements, the purpose and tone of the questioning was entirely different. The March 1 interview was much less about gathering information from the appellant than it was an attempt to secure an admission from the appellant that the Robbery Story was false.

[167] The appellant submits that the trial judge erroneously required that there be a “causal relationship” between the Charter breach and the obtaining of the March 1 statements as a prerequisite to a finding that the March 1 statements were obtained in a manner that violated the Charter. It is well established in the jurisprudence that a causal link between the Charter breach and the challenged evidence is not essential to a finding that the necessary link exists between the breach and the challenged evidence to bring that evidence within the reach of s. 24(2): see e.g. Beaver, at paras. 96-99; R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 38; R. v. Lewis, 2007 ONCA 349, 86 O.R. (3d) 46, at paras. 31-32; and R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 24 C.R. (6th) 360 (Ont. C.A.), at para. 45.

[168] Read in isolation, the trial judge’s observation that “I have concluded that there is no causal relationship” might be seen as an indication that he looked no further than the presence or absence of a causal relationship in determining whether the March 1 statements were obtained in a manner that infringed the Charter. The trial judge’s reasons must, of course, be read as a whole. Reading his reasons in that manner makes clear that the trial judge understood that a causal connection was but one factor to be taken into account. Indeed, in the paragraph immediately before the paragraph relied upon by the appellant, the trial judge expressly recognizes that the necessary relationship could be “causal, contextual, temporal, or some combination of the three”. I am satisfied the trial judge understood and applied the correct legal principles when determining whether the March 1 statements were obtained in a manner that infringed the Charter.

[169] On the facts as found by the trial judge, and applying the correct law, it was open to him to find that the March 1 statements were not obtained in a manner that infringed the appellant’s Charter rights. I would not disturb that finding.

[170] For the sake of completeness, I would note that counsel in their factum submitted that the Charter breaches during the interview with Detective Melnick at the police station “tainted” the earlier statements made by the appellant to Constables Micallef and MacKinnon at the scene of the homicide. Counsel submits that because of the connection between the Charter breaches at the police station and the earlier statements, the earlier statements should be viewed as having been obtained in a manner that infringed the appellant’s Charter rights. It does not appear that this argument was made at trial. The trial judge made no reference to it in his extensive reasons. It is fair to say that counsel did not press the argument in oral submissions on the appeal.

[171] Evidence acquired by the police before a Charter breach can be found to be tainted by a subsequent Charter breach and subject to exclusion under s. 24(2) of the Charter: R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 72-78. The applicability of Pino to the present circumstances is open to debate. As I would order a new trial on this ground, and as the matter was not litigated at trial, it is unnecessary and inappropriate to resolve this issue on this appeal.

conclusion

[172] The failure to exclude the statements taken by Detective Melnick at the station on February 19 before 7:45 p.m. is an error in law. In their factum, Crown counsel, in support of the argument that the statements made before about 7:40 p.m. should be admitted, described those statements as “powerful post-offence conduct evidence that seriously undermines the appellant’s self-defence claim”. Given that position, it is not surprising that the Crown does not rely on the curative proviso to overcome the legal error made by the trial judge.

[173] The appeal is allowed. The conviction is quashed and a new trial is ordered on the charge of second degree murder.

Released: “July 27, 2023 DD”

“Doherty J.A.”

“I agree. K. Feldman J.A.”

“I agree. G.T. Trotter J.A.”