Court File and Parties
Court File No.: Brampton 11-8139 Date: April 22, 2013 Ontario Court of Justice
Between: Her Majesty the Queen — and — R.W.
Before: Justice George S. Gage
Heard on: September 4-7, 10 and 17, 2012
Ruling on: Charter Applications and Voluntariness Voir Dire
Released on: April 22, 2013
Counsel:
- L. Stokes, for the Crown
- M. Moon, for the accused
Introduction
[1] The Crown seeks the admission of a video and audio taped statement given by the defendant R.W. to Peel Regional Police Officer Michael McKenzie on June 14, 2011. The statement was made at the Toronto Hospital for Sick Children in an electronically monitored interview room located in the SCAN (Suspected Child Abuse and Neglect) unit. The onus is on the Crown to establish beyond a reasonable doubt that the statement is voluntary.
[2] The defence applies pursuant to section 10(b) and section 24(2) of the Canadian Charter of Rights and Freedoms (hereinafter the "Charter") for exclusion of the entire statement. The onus is on the defendant to demonstrate on a balance of probabilities that her section 10 right was breached or infringed and pursuant to the analysis mandated by the Supreme Court of Canada in R. v. Grant that the statement should be excluded.
[3] A voluntariness voir dire was conducted. The evidence called on the voir dire consisted of the testimony of Officer McKenzie, the video recording of the interview that he conducted and the evidence of Constable Irving of Peel Regional Police.
[4] An important feature of the Charter analysis relates to the question of whether it can be said that R.W. was detained and if so at what point.
[5] It is common ground that in the event that R.W. was detained the manner in which her 10(b) rights were referenced in the course of the interview will not pass constitutional muster.
Background
[6] At some time around 1 pm on June 13, 2011 J.W., then two months old, sustained a broken leg. Shortly after the injury occurred his mother, R.W., called a taxicab and took him to the Brampton Civic Hospital. At the hospital she spoke to the treating health professionals. She provided a description of the mechanism by which the injury had been sustained. The treating professionals did not accept her description as a credible explanation for the manner in which the injury was sustained. They suspected that the injury might be the result of abuse. They arranged for J.W. to be transferred to the SCAN (Suspected Child Abuse and Neglect) unit Toronto Hospital for Sick Children. The Toronto Children's Aid Society was alerted to the situation.
[7] In addition to providing treatment, the health professionals at the Hospital for Sick Children took X-rays the interpretation of which suggested that J.W. had also sustained, at some earlier time in his life, injuries to his ribs and jaw. Prior to her interview R.W. was not informed of these additional findings. She was not advised that the health professionals doubted her explanation or suspected that the injuries had been sustained as a result of abuse. She was not aware that the CAS was involved.
[8] The interview of R.W. on June 14, 2011 started at 2:28 pm. It was conducted in a closed video monitored interview room within the SCAN unit at the Hospital. At the point the interview began J.W. and R.W. had been at the Hospital for Sick Children for almost 24 hours. It is not clear how much sleep or what quality of sleep R.W. would have had over that time frame. The interview lasted a total of three hours.
[9] Officer McKenzie was assigned to the investigation on June 14 at 12:15 pm. Prior to the commencement of the interview Officer McKenzie familiarized himself with police records relating to R.W. and he was briefed by the CAS worker and two of the treating physicians as a result of which he learned:
- that J.W. had sustained a fracture of the right femur;
- that R.W. was J.W.'s primary caregiver, that she lived with J.W. on her own, that the child's father was not involved and that she had limited community support;
- that R.W. had explained to the treating health professionals at the Brampton Civic Hospital and the Hospital for Sick Children that the injury occurred when the child fell off a futon bed while she was turned away in the course of changing a diaper;
- that the treating doctors did not believe R.W.'s explanation of how the injury had occurred;
- that the treating doctors suspected abuse;
- that J.W.'s immediate injuries had been addressed and the doctors were content that he be released from medical care at the hospital that afternoon;
- that further radiological investigations had disclosed the existence of other healing bone fractures also suspected to have been caused by abuse;
- that R.W. had been previously convicted of manslaughter in relation to the death of her infant Starlin;
- that in the investigation of the death of Starlin, R.W. had originally claimed that Starlin had died as a result of falling off a couch;
- that the Coroner's Post Mortem of Starlin had concluded that the cause of death was blunt force trauma;
- that R.W. had denied to CAS that she had any other children; and,
- that the CAS planned to take J.W. into temporary care immediately.
[10] Officer McKenzie arranged to have R.W. escorted to the SCAN interview room by hospital personnel.
[11] The interview room is a sparse room with a table and chairs and a two way mirror which allows persons outside the room to monitor the process inside the room without allowing the persons inside to know they are being observed. The door to the room is locked to the outside but openable by those within it. During the interrogation of R.W. the room was monitored through the two way mirror by Constable Irving of PRPS.
[12] At the commencement of the interview the audio recording device is not yet engaged. When the recording begins McKenzie is advising R.W. that the reason she has been brought to the room is that her son has some injuries – one of which she knows about (broken leg) and others she does not (ribs and jaw). McKenzie tells her that whenever a child as young as J.W. is injured there is an investigation that "needs" to be done by the doctors and the CAS and the police. He tells her that he is from the special victims unit of the Peel Regional Police.
[13] McKenzie tells R.W. that they need to find out exactly what happened for a number of reasons but "mainly" so that "we'll be able to help him".
[14] McKenzie next establishes with R.W. that she is the primary caregiver and begins the process of building some empathy by identifying with her as a parent. Shortly after that McKenzie tells R.W. that if "at the end" it "turns out" that the injuries to J.W. were caused by some "inappropriate force or neglect or some other means" there "could" be criminal consequences for her. He asks her if she understands that and she acknowledges that she does.
[15] McKenzie next, within the space of one page of transcript or roughly 47 seconds of DVD time confirms with R.W. that: 1 – she does not have to talk to him if she does not want to; 2 – that the interview is being video recorded and if she says something that causes "me to believe that you assaulted J.W." it can be used against her in court; and 3 – that if she wants she can "seek some legal advice" from a lawyer before she talks to him.
[16] Immediately following this brief exchange McKenzie returns to the parental theme – "I am sure you are a responsible parent" – and the need to be forthcoming "for the sake of J.W.".
[17] This is followed by a brief exchange in which McKenzie asks R.W. if she is comfortable in answering questions and telling her that she can stop the interview at any time, that she can get up and leave if she wants to, and that in that event he would have to find out what happened to J.W. through other means.
[18] During the next portion of the interview Detective McKenzie encourages R.W. to provide a detailed description of what occurred the day before that caused J.W. to be injured. The questions are open ended.
[19] After an hour and twenty minutes of questioning McKenzie leaves the room. Before he departs he asks R.W. if she would like a glass of water and offers to see if he can get one for her when she indicates that she does. He also asks if R.W. needs to use the washroom. She indicates by a shaking of her head that she does not need to use the washroom. He is out of the room for 5 minutes. When he returns he has a glass of water for R.W. and a doll which is used as a prop in further questioning. The questioning continues to be open ended. R.W. is asked to provide a diagram of her bedroom. She complies. She is asked to demonstrate how the child fell and she complies with that request as well.
[20] At a point approximately one hour and forty eight minutes into the interview the fundamental character of the interview abruptly shifts from discussion to confrontation. McKenzie references the "very badly broken" leg and the other injuries to the ribs and jaws and tells R.W. that the explanation she has provided "doesn't add up". He tells her that he does not believe her story and neither do the doctors.
[21] Immediately following this interchange McKenzie returns to the "we are both parents" theme and he describes an incident (p. 82-84) involving his infant child in which he infers that he might have acted inappropriately toward his child if it had not been for the timely intervention of his wife. The paraphrased thrust of this vignette and what McKenzie says immediately thereafter (page 84) is that this type of incident can happen to anyone and nobody is perfect.
[22] At this crucial juncture in the interview the following interchange, quoted directly from the transcript, occurs:
MCKENZIE: And I'm not here to say-, I'm not gonna judge you at all, okay?
R.W.: Mm-hmm.
MCKENZIE: But we need to know the truth. We need to know because one, um, if you don't accept responsibility for what happened.
R.W.: Mm-hmm.
MCKENZIE: Then I don't know if you're gonna be allowed to, to see J.W. again. And I, I don't mean that as a threat, okay? But also, uh, uh, (inaudible) as I've got, I've got some concerns.
[23] The immediate impact of that brief statement is palpably and poignantly demonstrated by R.W.'s reaction on video. Even the bare transcript captures something of the powerful effect on her:
R.W.: (Crying) He's the only family I have.
[24] Following on that exchange Detective McKenzie returns quickly to the notion that cooperation is necessary for the proper medical treatment of J.W. – "we need to know exactly what caused the injury in order to help him get better" and "but we don't know exactly happened with him….we're not going to be able to treat him properly".
[25] Later in the interview Detective McKenzie follows up on the suggestion that answering questions in a manner he is prepared to accept may result in R.W. being reunited with her child. At page 87 he says: "you know what, and, and there's no reason why he can't be a big part of your life" – a statement that based on the knowledge that he has of her background he must have known was unlikely at best. His statement at page 96 of the transcript: "I personally am very concerned about sending him back to you in this situation until these problems are resolved" suggests fairly directly and unambiguously that McKenzie has the power to decide if R.W. has custody of her child.
[26] During the balance of the interrogation, after page 85, R.W. gives information that is either clearly or arguably inculpatory. Her demeanor changes and it is clear that her emotional composure gradually unravels.
Ruling on Voluntariness
[27] The statement that the Crown seeks to admit was given to Detective McKenzie of Peel Regional Police. There is no doubt that he was a person in authority relative to R.W. at the relevant time. The Crown bears the onus of proving that the statement was voluntary. The applicable standard is beyond a reasonable doubt. The fundamental governing principle of the law relating to confessions is stated by Viscount Sumner in Ibrahim v. The King:
It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear or prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Lord Hale.
[28] The confessions rule has two intertwined goals: "protecting the rights of the accused without unduly limiting society's need to investigate and solve crimes".
[29] In reviewing the admissibility of a statement for voluntariness the trial judge must examine the totality of the circumstances. The analysis is contextual. A voluntary statement will not be induced by threats or promises although not all inducements will lead to the exclusion of the statement. The atmosphere of the questioning and the use of trickery or false or misleading evidence will factor into the analysis with the overriding issue being whether, in all the circumstances the statement of the accused is the product of an operating mind capable of choosing or deciding between alternatives. As Rand J. said in R. v. Fitton:
The strength of mind and will of the accused, the influence of custody or its surroundings, the effect of questions or of conversation, all call for delicacy in appreciation of the part they have played behind the admission, and to enable a Court to decide whether what was said was freely and voluntarily said, that is, was free from the influence of hope or fear aroused by them.
[30] In this case the interrogating officer was polite and professional throughout. The questioning was video and audio taped throughout. While the interview room was somewhat stark it was not physically uncomfortable. While certain inferences might be drawn from the fact that R.W. had been with her injured child at the hospital for about 24 hours when the interrogation commenced I have no evidence from her about her physical state and the video tape does not suggest obvious physical distress or emotional vulnerability at the outset of the questioning. The circumstances cannot be described as oppressive.
[31] The questioning of R.W. by Detective McKenzie closely follows the pattern of a "Reid" interrogation, that is to say a free flowing, unstructured, non-accusatory interview accompanied by empathy building which is followed by a more structured confrontational interrogation. The use of this technique has given rise to concerns about voluntariness in other cases particularly where the interviewee is naïve, unsophisticated and emotionally vulnerable. While the use of this methodology in relation to R.W., who appears to be naïve and in all the circumstances could be expected to be emotionally vulnerable at the time, is a circumstance of concern I would not exclude her statement solely on that account.
[32] The crux of the difficulty with the admission of this statement lies in the presence of two significant inducements embedded in the interrogation of R.W. by Detective McKenzie.
[33] Almost as soon as the interrogation begins Detective McKenzie is actively promoting the notion that unless R.W. provides him with an explanation of the mechanism of the injury the medical professionals will not be able to properly treat her child. It is a theme that McKenzie returns to periodically in the course of the interview. The clear implication is that the child will suffer needlessly unless she answers the questions put to her by McKenzie. In fact the proper treatment of the serious but relatively simple fracture of the femur was in no way dependant on the doctors being provided with R.W.'s description of how the fracture was sustained. In that sense these assertions are dishonest and arguably contain an element of objectionable trickery. This ploy however is, in essence, a form of moral encouragement of the type that Oikle indicates will not ordinarily result in exclusion. Standing alone I would not be prepared to find that this inducement was of sufficient force to cast doubt upon whether the statement given by R.W. was the product of her free will.
[34] The second threat/inducement is found in the statements quoted above at paragraphs 22 and 23 herein and the follow up remarks quoted above at paragraph 25 clearly represent a threat containing a quid pro quo - effectively – if you do not tell us the truth, or an explanation that we are prepared to accept as plausible, you may not see your child again. It is almost impossible to conceive of a threat to the mother of a new born that would be more powerful or more likely to utterly destroy, let alone overbear, her free will. The inculpatory admissions of R.W. follow shortly after (within 20 pages – most of which constitutes a monologue by Detective McKenzie) the utterance of the threat. I am satisfied that the threat and the inculpatory confession are causally related.
[35] The impugned statements at pages 85, 87 and 96 of the transcript, standing either alone or in conjunction with the less objectionable inducement described in paragraph 33 above, are more than sufficient to raise a reasonable doubt as to the voluntariness of the totality of the statements made by R.W. occurring after page 85 of the transcript. The Crown has not satisfied the burden of proof. The statement of R.W. after the point at page 85 where the threat is made is inadmissible.
Ruling on Charter Application
[36] R.W. applies for exclusion of her statement to Detective McKenzie on the basis that her rights under sections 10(a) and 10(b) of the Charter were infringed.
Was there a breach of section 10?
[37] Pursuant to section 10 of the Charter R.W., immediately upon being detained, had the right to be (a) informed promptly of the reason for detention, and (b) to retain and instruct counsel without delay and to be informed of that right.
[38] While it is properly described as less than perfect I am satisfied for the purposes of this application that, assuming for the moment that R.W. is detained, the following exchange between Detective McKenzie's and R.W. near the beginning of the interrogation is sufficient to satisfy the requirements of section 10(a) of the Charter:
MCKENZIE: ...at the end, if it turns out...
R.W.: Mm-hmm.
MCKENZIE: ...that his injuries were caused by you...
R.W.: Mm-hmm.
MCKENZIE: ...um, either by, uh, using some inappropriate force on him...
R.W.: Mm-hmm.
MCKENZIE: ...um, or by neglect or some other means, there could be some...
R.W.: Mm-hmm.
MCKENZIE: ...some criminal consequences...
R.W.: Mm-hmm.
MCKENZIE: ...for you. Uh, do you understand that?
R.W.: Yes.
[39] The same cannot be said concerning either the informational or the implementation components of section 10(b). Again assuming detention, the manner in which R.W.'s right to counsel was communicated to her was seriously deficient. The information provided by McKenzie did not conform to the standard recitation of rights found in every police notebook. It omits reference to the availability free legal advice. It omits reference to the toll free duty counsel telephone line. Finally and most significantly it omits any form of offer to accommodate access to legal advice. The identical deficiencies were addressed at length in the Supreme Court of Canada decision in R. v. Bartle where the recitation was found to be constitutionally insufficient and the Crown properly concedes that in the event that R.W. is found to have been detained the provision of rights to counsel by Detective McKenzie in this instance will not survive Charter scrutiny.
The Question of Detention
[40] The right to be properly advised of section 10(b) rights is not triggered unless the applicant is arrested or detained. The question of whether R.W. was detained at the time is the issue creating the most difficulty and the issue to which counsel directed the bulk of their submissions.
[41] The guiding authorities in relation to this question are the decisions of the Supreme Court of Canada in R. v. Grant and R. v. Suberu.
[42] The discussion of the question of detention in this case is usefully commenced by reference to the overarching principles which inform the rights triggered by detention.
[43] The Charter recognizes that:
Detention represents a limit on the broad right to liberty enjoyed by everyone in Canada at common law and by virtue of s. 7 of the Charter, which guarantees that liberty will only be curtailed in accordance with the principles of fundamental justice. Section 9 of the Charter establishes that "everyone has the right not to be arbitrarily detained or imprisoned". Section 10 accords certain rights to people who are arrested or detained, including the right to retain and instruct counsel.
[44] The Grant analysis of the question of detention is described as "claimant centered". A part of the focus of the determination is the vulnerability of the position of the person subject to state direction or control and the effect that may have on the right against self-incrimination.
"Detention" also identifies the point at which rights subsidiary to detention, such as the right to counsel, are triggered. These rights are engaged by the vulnerable position of the person who has been taken into the effective control of the state authorities. They are principally concerned with addressing the imbalance of power between the state and the person under its control. More specifically, they are designed to ensure that the person whose liberty has been curtailed retains an informed and effective choice whether to speak to state authorities, consistent with the overarching principle against self-incrimination. They also ensure that the person who is under the control of the state be afforded the opportunity to seek legal advice in order to assist in regaining his or her liberty.
[45] As the Supreme Court of Canada notes in Grant the words "arrest or detention" in section 10 of the Charter suggests that a detention may exist when the deprivation of liberty may have legal consequences.
[46] The burden of proving detention is upon the applicant to the standard of a balance of probabilities.
[47] A deprivation of liberty leading to a conclusion of detention may arise by way of an unambiguous assertion or exercise of significant physical restraint. A detention may also arise in a context in which a person "submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist."
[48] In determining the answer to the question of whether there was detention in the psychological context the Court is directed to objectively and realistically examine and appraise all of the circumstances relevant to the interaction between the police and the individual asserting that she was detained. This will, according to Grant, inter alia, include:
(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.
(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
[49] The overall context includes an analysis of the circumstances under which R.W. found herself in an interview room with Detective McKenzie.
[50] As of June 14, 2011 R.W. was the single black mother of a newborn. She was, and is, slight of stature.
[51] The biological father of J.W. had an intermittent relationship with R.W. which in his mind was strictly for sexual purposes. When he learned of the pregnancy he encouraged her to abort the child. He was not interested in assisting her with child rearing. He was not much interested in providing financial support. She is a woman who, at least in this most recent romantic episode, was capable of being exploited.
[52] She had no family. She was unemployed.
[53] Her 9 week old child had sustained a fractured femur the day before. Whatever else might be said about R.W.'s parenting skills, it is clear that as soon as the injury occurred she brought her child to the Brampton hospital nearest her home for care and treatment. As of the commencement of the police interview she had been in one hospital or another for close to twenty four hours. For reasons that were not fully or truthfully explained to her, she and her baby had been shuffled from a hospital close to her home to a different hospital in a different City some distance from her home.
[54] She had no friends or external support available to her at the hospital. Throughout the interview/interrogation encounter R.W. was isolated in a room with Detective McKenzie. Notwithstanding her criminal record the video/audio recording does not disclose a seasoned or savvy criminal. Her level of sophistication may be inferred in the fact that it does not occur to her, once, to ask why, if the need for an explanation is driven by J.W.'s medical care, she is not talking to his doctors instead of a police officer. The rapidity of her emotional disintegration after she is challenged on her explanation also speaks to her level of sophistication.
[55] Members of the hospital medical team were tasked to bring R.W. from her child's bedside to the SCAN unit interview room. There is no indication that the invitation/directive that they delivered contained an element of choice for R.W.
[56] Important medical information concerning her child's condition was not disclosed to her by the treating medical professionals. Up to the very commencement of the interview R.W. was not aware that prior rib and jaw fractures had been diagnosed, and, up to a point half way into the interview R.W. had no indication from any of the medical professionals to whom she had previously spoken that any of them had any difficulty with the explanation she had offered about how the injury to J.W. had occurred.
[57] The setting of the interview forms a part of the context. The interview did not take place at J.W.'s bedside. It was not on the street. It was not at R.W.'s home or in her own community.
[58] The interview room had restricted access via one door. That door remained closed throughout the interview except when Detective McKenzie exited and entered.
[59] Shortly after R.W. arrived she was advised by Detective McKenzie that the room in which she was to be interviewed was audio and video taped and that her interview would be recorded. She was not offered any choice about where she was to be interviewed or whether that interview would be recorded.
[60] R.W. was told that she could talk to a lawyer if she wanted but she was neither given nor offered any method or means of doing so. At a point in the interview R.W. was asked if she would like to have something to drink. She confirmed that she would like a glass of water. McKenzie told her that he would "see" if he could get a glass of water for her. She was not invited to get the water herself.
[61] When all of these circumstances regarding the setting of the interview are taken into account it is evident that a person standing in the shoes of R.W. would reasonably conclude that he or she was in an environment that was under the complete control of the police.
[62] This was not a chance encounter. It was not a brief encounter. The police were not merely gathering information.
[63] Given everything that Detective McKenzie knew going into the interview – that the child was 9 weeks old; that R.W. was the primary caregiver; R.W.'s admission that she was present when the injury occurred; that she had provided an explanation that the treating medical professionals considered implausible; that she had been convicted of manslaughter in relation to the death of her first infant; and that her initial explanation concerning the death of her first infant was similar to her explanation for J.W.'s injury – it is difficult to credit Detective McKenzie's assertion that he did not feel that he had reasonable and probable grounds until just prior to her arrest. At the very least there was a strong inference available that criminal conduct was implicated in one or more of the injuries and R.W. was the primary suspect. The manner in which the interview unfolded makes it clear that the objective was to secure a statement from R.W.
[64] This was a highly focused, directed and sophisticated interrogation. An examination of the opening dialogue is instructive. At the time that the interview began R.W. had been at the hospital with her son for almost 24 hours. During that time she had been given no information about any injuries or condition other than the fracture of the femur. The opening dialogue proceeds as follows:
MCKENZIE: Okay. So the, the reason why, uh, I wanted to meet with you...
R.W.: Mm-hmm.
MCKENZIE: ...is the-, you brought your, your child-, you sought medical help for...
R.W.: Yeah,
MCKENZIE: ...for J.W..
R.W.: Yes, yes.
MCKENZIE: And, uh, I guess they had done some x-rays. They found out that he's got a broken bone and...
R.W.: Hmm, yeah.
MCKENZIE: ...some other injuries.
R.W.: Some other-, he has other injuries?
MCKENZIE: Uh, yes, and currently there is-, uh, he's got a, uh, a broken leg, he's got a broken leg.
R.W.: Oh, yeah, yeah, yeah, um, yeah, I know about that and that's when, um...
MCKENZIE: Yeah. And they found some evidence of, uh, of some broke-, breaks his ribs as well?
R.W.: Really? I don't know about that.
MCKENZIE: And, uh, possibly, uh, a, a fracture in his jaw?
R.W.: Oh, no.
[65] R.W. had no way of knowing how it could be that Detective McKenzie had knowledge about the condition of her son. She is not told that these injuries are historic rather than current. She has no idea what the treatment might be. She learns that strangers know more about her son's condition than she does. Literally within seconds of introducing himself, Detective McKenzie, in the course of three sentences, has managed to, not only unsettle whatever equilibrium she, or any other reasonable person in the same circumstances, might have managed to hang on to by that point in time, but he has also, demonstrated to R.W. that even though he has just arrived he already has more medical information concerning her son than she had learned in 24 hours by her son's bedside. In this way he has made it crystal clear who is in control of information and the agenda. It is a probable assumption that any person standing in the shoes of R.W. would reasonably perceive that Detective McKenzie, entirely apart from the power and control inherent in his position as an officer of the law, was in control of the room.
[66] In the first part of the questioning Detective McKenzie appeals to a common bond of parenthood and encourages R.W. to physically demonstrate, provide detail and otherwise elaborate upon an explanation that he already knows is medically implausible. In the art of cross examination this is referred to as the "pinning down" phase. It is reasonable to assume that these stratagems would exert influence on the state and frame of mind of R.W.
[67] These circumstances taken together are more than sufficient to persuade me on a balance of probabilities that R.W.'s acquiescence to the control, direction, and questioning of Detective McKenzie was a result of her reasonable apprehension that she had no other choice.
[68] The question remains whether, notwithstanding the extent of control over R.W. exhibited by the setting, the words used, the length of the interrogation, and the manipulative techniques deployed, the "you do not have to answer my questions and you can leave when you want" statements by McKenzie to R.W. at the commencement of the questioning are sufficient to dispel the effect of the control otherwise demonstrated. While standing alone, it might achieve that effect; I find that it does not do so in this instance where it is mixed with the message that an explanation is necessary "mainly" to help J.W.. Effectively, "you can go if you like but your child will suffer." The effect of this co-existing message was to dilute or diminish the impact of the statement that she was free to leave.
[69] I am persuaded on the foregoing basis, beyond a balance of probabilities, that R.W. was psychologically detained well within 3 minutes of the commencement of the interview.
[70] It is telling that Detective McKenzie advised R.W., near the beginning of the encounter, that the right to remain silent and the right to counsel were rights that he "needed" to tell her about. He had that part right.
[71] Following the release to counsel of paragraphs 1-70 of these reasons the Crown addressed the issue of exclusion under section 24(2) of the Charter. In light of the content of the foregoing reasons and having regard to the direction of the Supreme Court of Canada in Grant surrounding the treatment of statements secured in breach of section 10 that is found at paragraphs 89-98 of Grant the Crown graciously and properly conceded that the balancing of the relevant factors would mandate exclusion of the statement. I agree with the Crown's analysis. The statement is excluded.
Signed: Justice George Gage