Court File and Parties
Ontario Court of Justice
Date: 2018-11-14
Court File No.: Brampton 17-5437
Between:
Her Majesty the Queen
— and —
Romario McKnight
Before: Justice P.T. O'Marra
Heard on: June 4, 5, 6, 7, 2018
Reasons for Decision: Voluntariness and Admissibility of Statements
Released on: November 14, 2018
Counsel
Shanna Ferrone — counsel for the Crown
Adele Monaco and Ashley Dresser — counsel for the accused Romario McKnight
Introduction
[1] Romario McKnight was charged with one count of robbery and one count of unauthorized use of a stolen credit card, arising out of a home invasion style robbery that occurred on February 21, 2017 in Brampton. He elected to be tried in the Ontario Court of Justice.
[2] On February 21, 2017, it is alleged that two individuals were robbed by two assailants at their residence located at 67 Huntingwood Crescent, Brampton. One suspect held a knife and the other a handgun. The items stolen included jewelry, cash and credit/debit cards.
[3] On March 16, 2017, the police arrested Shavan Brown. He was charged separately but with the same offences as Mr. McKnight. A search warrant was executed at Mr. Brown's residence and on a 2010 Silver Nissan Altima that was registered to Mr. McKnight. A search of the car revealed that there was a car rental agreement for a Volkswagen in his name from a car rental agency near the airport. In addition, the police located two orange construction vests and two sets of licence plates.
[4] On March 16, 2017, Constable Langdon contacted Mr. McKnight to attend 21 Division of the Peel Regional Police Service in respect to the Nissan that had been seized. Constable Langdon told Mr. McKnight that it was in his best interest to come to the Division to obtain a tow tag in order to retrieve his motor vehicle rather than incur further impoundment fees. Mr. McKnight attended 21 Division. Upon Mr. McKnight's arrival, Constable arrested him for the aforementioned offences.
[5] After Mr. McKnight spoke to his counsel of choice, Ms. Monaco, Mr. McKnight provided a video recorded statement.
[6] The Crown sought a determination that the video recorded statement by Mr. McKnight was voluntary. Mr. McKnight maintained that the statement was not voluntary. In addition, Mr. McKnight brought a Notice of Application to apply for an order pursuant to section 24(2) excluding the video recorded statement as a result of breaches of his right to counsel pursuant to sections 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms. Specifically, Mr. McKnight alleged that he was not advised of the reasons for his detention and that he was not informed of the right to counsel upon his detention. As well, it was argued that Constable Langdon denigrated the role and advice of defence counsel.
[7] The Crown argued that there were no violations of section 10(a) and 10(b). Constable Langdon advised Mr. McKnight of the charges that he was arrested for. He subsequently provided the rights to counsel without delay and provided the primary and secondary cautions to Mr. McKnight. Mr. McKnight's counsel of choice, Ms. Monaco was contacted and Mr. McKnight spoke to counsel for approximately twenty (20) minutes. The Crown submitted that Mr. McKnight was satisfied with his discussion with counsel. After Mr. McKnight was brought into the interview room, Constable Langdon affirmed on video that Mr. McKnight had been given his rights to counsel, and reviewed the secondary caution with him. Constable Langdon confirmed that Mr. McKnight had spoken with counsel of choice and was satisfied with that communication. It was further submitted that Constable Langdon's reference to the role of counsel in providing advice was not meant to undermine the legal advice that was provided to Mr. McKnight.
[8] The Crown submitted that the video recorded statement was voluntary on the basis that Constable Langdon provided Mr. McKnight with the informational and implementation components of the rights to counsel. In addition, Constable Langdon provided the primary and secondary cautions to Mr. McKnight before he was interviewed. During the time Mr. McKnight spoke to Constable Langdon, Mr. McKnight had an operating mind. Finally, Mr. McKnight was not threatened or induced to speak to Constable Langdon. He spoke to Constable Langdon voluntarily.
[9] At the conclusion of the voir dire I indicated that I would provide counsel with both my ruling and my reasons before the commencement of the trial in this matter which is scheduled to commence the week of December 17, 2018 for five (5) days.
The Circumstances of Mr. McKnight's Statement
[10] Mr. McKnight was born in Jamaica. He is 23 years old. He came to Canada as a child but then returned to Jamaica very early in elementary school. He moved back to Canada and did one year in high school before he was offered to play semi-professional soccer in Austria. He lived in Austria for two years until he was injured and returned to Canada. He completed his high school education in Hamilton and worked at a few jobs. After Mr. McKnight completed grade 12 he left for Jamaica to play soccer. In 2015 he injured his meniscus and returned to Canada for surgery. He recovered and left for Malaysia for six (6) months to play soccer. Unfortunately he re-injured his knee and returned to Canada in 2016. He has remained in Canada since then and has worked several full time jobs. Currently he works at a company in Toronto. Mr. McKnight has no criminal record. At the time of his arrest he lived with his girlfriend and a friend in Hamilton. Currently, he lives with his grandmother and mother.
[11] Mr. McKnight testified that he was contacted by Constable Langdon at approximately 1:40 pm on the date of his arrest. At the time of the call Mr. McKnight was in bed. Constable Langdon advised Mr. McKnight that his car had been "confiscated" and that he needed to pick up his car or it would cost him more money if he chose to pick up the car on a later date. According to Mr. McKnight he was hesitant to pick up the car as he had to go to work at 6:00 pm that day. Mr. McKnight admitted that before Constable Langdon called, he had prior knowledge that his cousin Shavan Brown was arrested earlier that day and Mr. McKnight's car was seized by the police. His Aunt Carol had called him approximately 40 minutes earlier. Mr. McKnight testified that he lent Mr. Brown his car, as Mr. Brown was trying to sell his own car.
[12] Constable Langdon testified that he had every intention of arresting Mr. McKnight and charging him with the offences. He claimed that he was uncertain if he was going to interview Mr. McKnight. Constable Langdon stated the he did not advise Mr. McKnight that he was going to be arrested. It is not a typical police practice to advise the suspect of this information during a phone call as the suspect may flee in order to avoid the arrest.
[13] At approximately 3:00 pm, Mr. McKnight arrived at 21 Division with his friend Dominique. While on route to the Division, Constable Langdon called Mr. McKnight to confirm his arrival time. Constable Langdon advised that he was only five (5) minutes away.
[14] According to Mr. McKnight when he arrived he approached Constable Reis, a uniform officer at the front desk. He advised Constable Reis that he was present to pick up his car as his cousin was in trouble and that his car had been seized. Mr. McKnight was told to have a seat. Mr. McKnight stepped outside for a few minutes. He returned to wait in the lobby with Dominique. At this point Constable Langdon came through a door next to the front desk. Mr. McKnight testified that Constable Langdon introduced himself and asked Mr. McKnight his name which he provided. Immediately Constable Langdon asked that Mr. McKnight follow him. The officer turned to Dominique and said "we will be right back".
[15] Mr. McKnight followed Constable Langdon into a small room adjacent to the front desk. The door was closed. Constable Langdon asked Mr. McKnight if he knew why he was there. Mr. McKnight told him that he was there to pick up his car and as a result of a robbery. Constable Langdon asked him if that was "everything?" Mr. McKnight responded to the officer "yes". According to Mr. McKnight, Constable Langdon expressed to him that he was "mixed up with bad company" and asked him if he had any information about the robbery? Mr. McKnight answered "no". At this point Constable Langdon got up and said that he "would be right back". He returned shortly carrying a folder, sat down and said to Mr. McKnight that there was a "change in plans…..you are being charged with robbery and unauthorized use of credit card". Mr. McKnight shook his head and sighed. According to Mr. McKnight, Constable Langdon asked him if he knew anything about the allegations and said words to the effect, 'if you can prove that this is all a misunderstanding…..I am not usually wrong about these things'.
[16] Mr. McKnight testified that at this point while in the room Constable Langdon arrested him and started to use "fancy" words. Mr. McKnight asked him about the meaning of the word "counsel". Mr. McKnight was escorted to the booking area and told Constable Langdon that he had a family lawyer named "Mrs. Adele" that had acted for a lot of family and friends. He stated that he did not remember if Constable Langdon advised him about Legal Aid, or used the expression "say anything in answer to the charge", or "a statement could be used against me", or whether or not if he wanted to speak to a lawyer. However, Mr. McKnight was clear that he wished to speak to his counsel of choice.
[17] Mr. McKnight testified that at first he described his emotional level while in the room as "mixed up" but then he became "kinda relaxed" as he felt that this was just a mistake. Mr. McKnight further testified that he relaxed when Constable Langdon stated to him that if he "could prove that he was wrong I could go back to work". Mr. McKnight testified that he was in the room for five (5) minutes.
[18] Mr. McKnight was taken to the booking cell area. At this point Mr. McKnight claimed that he and Constable had a "small chat". Constable Langdon advised him not to say anything and that they will talk later. Mr. McKnight told the officer that this was the first time that he was ever under arrest.
[19] Mr. McKnight was searched by the booking officer.
[20] Constable Langdon left the cell area and returned shortly. Mr. McKnight testified that he asked to speak to his lawyer. Mr. McKnight told the officer that his Aunt could provide his lawyer's number. Constable Langdon allowed Mr. McKnight to retrieve his phone and provided his Aunt's number and his employer's number. He wanted to let his employer know that he was going to be late for work. Constable Langdon called his Aunt and who then called his lawyer.
[21] Mr. McKnight said that while he was waiting for his lawyer to call back, he and Constable Langdon talked about sports, and other small talk. According to Mr. McKnight when he took off his shoes during the search, Constable Langdon came over and stated the following to him:
"Lawyers don't have your best interests in mind. They don't want you to talk. It is the police decision to help you".
[22] Mr. McKnight testified that his interpretation from Constable Langdon's statement was whatever advice that his counsel tells him will not be of any assistance. He felt that the officer was imploring him to talk to the police and prove that he did nothing wrong and then he could leave and go to work.
[23] Mr. McKnight testified that no police officer told him that any utterances or statements that he made could be used against him.
[24] The booking area at 21 Division is video recorded however, there is no audio on the video recording. Peel Police do not audio record the interactions in this area. The video recording was played in its entirety for the court and entered as an exhibit on the blended voir dire. The recording commenced at 3:32 pm and ended at 4:20 pm. It is not necessary to outline the entire chronology of the events captured on the video recording. However, it is important to highlight the relevant time stamps and corresponding observations that in my view are relevant to the voir dire:
3:32 pm Mr. McKnight was brought into the booking area by a uniformed officer, Constable Reis.
3:33 pm Constable Langdon entered the booking area.
From 3:33 pm until 3:40 pm Mr. McKnight was searched. His jacket was searched. His earrings, shirt, watch and the contents of his pockets were removed. He took off his shoes and removed the laces. Constable Langdon took out his driver's license from his wallet and copied the information into his notebook. During this time frame there seemed to be a lot of conversation between Constable Reis and Constable Langdon.
3:40 pm Constable Langdon handed to Mr. McKnight his cellphone. Contemporaneously Constable Langdon wrote something down.
3:41 pm Constable Langdon returned, retrieved the cellphone and put it on the booking desk. Mr. McKnight's property was placed in a bag.
3:44 Constable Langdon talked to Mr. McKnight while holding a pen in his hand. Mr. McKnight was seated on a bench in close proximity to the booking desk. Constable Langdon spoke to him while standing near the booking desk. He moved toward Mr. McKnight and stood over him.
3:44:54 pm Constable Langdon pointed or gestured his right arm in the direction of a door and the hallway leading into the booking area. Mr. McKnight opened his hands and had his palms turned upward.
3:45:56 pm Both were still talking. Constable Langdon again pointed his finger in the direction of the hallway. (The hallway led to the interview room that Mr. McKnight was taken for his interview)
3:46 pm Mr. McKnight signed the bag that contained his personal items.
3:48:29 pm Mr. McKnight and Constable Langdon were still talking. Constable Langdon waved his arm in the air during the conversation.
3:54 pm Mr. McKnight entered the privacy room to consult with counsel. Constable Langdon continued talking to Constable Reis.
4:01 pm and 4:03 pm Constable Langdon looked through the window to check on Mr. McKnight.
4:03 pm Constable Langdon left the booking area.
4:19 pm Mr. McKnight left the privacy room and sat on the bench.
4:20 pm Mr. McKnight was removed from the booking area by Constable Reis and taken to the interview room down the hall.
[25] Mr. McKnight testified that at 3:44:46 pm Constable Langdon advised him that they were waiting for his lawyer to call back. At this point, Mr. McKnight alleged that the officer told him that the lawyer would tell him not to talk to the police as it would not be in his best interests. As Constable Langdon was seen pointing in the direction of the interview room, the officer "asked" Mr. McKnight if they could talk in the interview room after he consulted with counsel. Mr. McKnight's hand movements on video were indications of his acquiescence and agreement to discuss the matter in order to prove that it was all a misunderstanding.
[26] Mr. McKnight testified that when he came out of the privacy room, Constable Reis asked him what he was going to do. Mr. McKnight told him that, "my lawyer told me not to say anything and to bring me to a cell". At this point Constable Reis responded that he was going to take him to Constable Langdon in order for the officer to talk to him. According to Mr. McKnight he was escorted down the hall and his custody was passed over to Constable Langdon outside of the interview room. Constable Langdon asked him what he was going to do. Mr. McKnight reiterated his lawyer's advice that he was told not to say anything and that he wanted to be taken to a cell. Constable Langdon said "let's talk about the robbery" and asked Mr. McKnight if he was aware that his cousin was involved. Constable Langdon pointed to the interview room and was told to enter the interview room. Mr. McKnight felt that he did not have any other option. Mr. McKnight testified that while he sat in the interview he felt the following:
"I was taking everything in and everything was coming down on me and I was feeling very stressed. I was told that I must talk to the officer so I could go home. I was conflicted and concerned about what he said about my lawyer not having my best interests".
[27] According to Mr. McKnight after he sat down in the room, Constable Langdon entered with a folder, got him some water and said to him "tell me about the robbery".
[28] Mr. McKnight claimed the officer never told him that anything he said in the interview could be used against him. Mr. McKnight was shown a portion of the beginning of his statement in his direct examination which contained the following exchange between Mr. McKnight and Constable Langdon:
LANGDON: Okay? So we're being audio and video recorded right now. Uh, first things first I'm gonna read you what's called a Secondary Caution.
MCKNIGHT: Okay.
LANGDON: Remember how I went through your rights to counsel and caution and everything? So you were in cells, you were with the (16:30 Cells Officer, so if you have spoken to any Police Officer or to anyone with authority or if any such person has spoken to you in connection with this case, I want it clearly understood that I do not want it to influence you in making any statements.
MCKNIGHT: Okay.
LANGDON: Do you understand that?
MCKNIGHT: Yeah.
LANGDON: So the only other Officer you came in contact with since I read you your rights to counsel and caution was the Officers there in cells.
MCKNIGHT: Yeah.
LANGDON: And whatever they said to you I don't want it to influence you in talking to me or saying anything that you don't wanna say.
MCKNIGHT: Okay.
LANGDON: Do you understand that?
MCKNIGHT: Yep.
LANGDON: Great. So you spoken to Adel [Ph]?
MCKNIGHT: Yeah.
LANGDON: Yep. Did she explain everything to you satisfactory?
MCKNIGHT: Fairly, yeah, enough, I guess.
LANGDON: Enough?
MCKNIGHT: Yeah.
LANGDON: Okay. You got any questions of me, just uh, just let me know, okay?
[29] Mr. McKnight claimed in his examination in chief that he did not understand the secondary caution. He also indicated that during this portion of the interview that he just agreed with Constable Langdon for the sake of it as he claimed that he was "confused…and kept thinking am I going to work or home" and "there was already a trust issue because he had already lied to me".
[30] In cross examination, Mr. McKnight agreed when he was inside the small room adjacent to the front desk at 21 Division that Constable Langdon did ask for his identification. He conceded that he failed to mention that fact in his examination in chief. However, he vehemently disagreed with the Crown's suggestion that when he provided his identification that Constable Langdon advised him that he was under arrest for robbery and unauthorized use of credit cards and commenced reading his rights to counsel to him. After he indicated in his testimony that the right to counsel was not provided, Mr. McKnight back tracked on this point and agreed that he did hear the word "counsel" and asked Constable Langdon what the word meant. Mr. McKnight agreed in cross-examination that he was told in the room that he could speak to a lawyer. He also vehemently denied that while in the room that Constable Langdon told him that he did not have to say anything or whatever he said to the officer could be used against him. However, in direct examination he stated that he did not "recall' whether Constable Langdon said that to him. When pressed by the Crown regarding the differences between the two answers he responded "it is a little bit of both. I told Ms. Dresser what was in my memory". He agreed that the answer "I don't recall" was consistent with "I don't remember".
[31] He agreed that over all the details of the conversation that he had with Constable McKnight were vague.
[32] In cross-examination, Mr. McKnight claimed that Constable McKnight was initially kind towards him, however, after he had consulted with his counsel Constable Langdon's "body language changed and he was more persistent". He also said that the officer was more "genuine" in the small room and more dis-genuine during the taking of his statement.
[33] In cross-examination, Mr. McKnight testified that he did not think that while examining his phone on the video that he also provided Constable Langdon with Dominique's phone number in order for her to call his work. However, he then agreed that the officer took down both his Aunt Carol and Dominique's phone numbers. He agreed that he wanted his Aunt Carol to call both his counsel and his work. He thought that Constable Langdon would call Dominique and ask her to call his employer as well.
[34] In cross-examination, Mr. McKnight agreed in his testimony at 3:48 pm on the video recording of the cell area, when he signed his property bag, he tried to discuss the robbery. He also testified that Constable Langdon said to him "chill" and "stop talking" until he had an opportunity to talk to his lawyer. He denied that at this point all Constable Langdon said to him was where they would go and what would happen after he talked to his counsel. Mr. McKnight testified that although engaged in "small talk" Constable Langdon stated "lawyers don't have your best interests in mind" and "they always say don't talk to the police".
[35] According to Mr. McKnight when he entered the interview room he no longer had concerns about his employment situation since his Aunt Carol had called his work. As Constable Langdon re-iterated and confirmed his rights and cautions, Mr. McKnight agreed that he understood, however he told the court that he only agreed for the sake of it and that he "just wanted to move on". He agreed that a reasonable inference when he answered "yeah" was that he understood the questions being asked. Mr. McKnight did not express that his counsel told him to not talk until page 67 of the transcript. The second expression of his willingness to follow his counsel's advice was at page 79 of the transcript. He was directed to page 79 during his cross-examination and was asked about the following passage:
MCKNIGHT: So I don't know man, I'm just fucked up right now, like I can't, I don't know how to, I want, like I know my lawyer's telling me not to talk but like what am I supposed to say, like it was in front of me, like you know? (Inaudible)
[36] He testified that he did not want to tell Constable Langdon how he got caught up in the robbery but rather he just wanted to tell the officer what he wanted to hear in order that he would be released from custody.
[37] Constable Langdon testified that when he met Mr. McKnight in the lobby of the police Division he was accompanied by a woman. He greeted Mr. McKnight and introduced himself. Constable Langdon asked if he could speak with him. His intention was to arrest McKnight in the small private room adjacent to the front desk instead of arresting him in the public lobby and in front of the woman. Once they were inside the room, Constable Langdon asked for identification. He received Mr. McKnight's health card and his driver's license. At 3:26 pm he placed Mr. McKnight under arrest for the index offences. Constable Langdon testified that he read to Mr. McKnight his rights to counsel, the primary and secondary cautions from the Peel Police standard issue card. Constable Langdon testified that Mr. McKnight did not understand "duty counsel", after which he explained the meaning to him. Constable Langdon testified that Mr. McKnight understood both cautions and the right to counsel. Mr. McKnight did want to speak to counsel. Constable Langdon called counsel at 3:45 pm. Counsel called back at 3:51 pm.
[38] After Mr. McKnight was taken to the cell area and searched by Constable Reis, Constable Langdon testified that Mr. McKnight wanted his phone to retrieve his Aunt Carol's number in order that the officer could call his lawyer. Since Mr. McKnight was advised that he would not be making his night shift he also wanted to retrieve his work number. Constable Langdon testified that they both agreed that the number would be provided to Dominque so she could call his work to let them know that he was not going to be making it into work due to "personal legal matters". Constable Langdon testified that he stepped out while Mr. McKnight was speaking to his counsel, and told Dominique to call his work and arrange with his Aunt Carol to pick up Mr. McKnight's car.
[39] Constable Langdon testified that while they waited for counsel to call back, he explained to Mr. McKnight the procedure after he had spoken to his counsel. This included that after he spoke to counsel, Mr. McKnight would be brought to the interview room and he would be interviewed. Constable Langdon told him that he would be provided an overview of the investigation and that it was his option whether or not Mr. McKnight wanted to speak to him. Constable Langdon testified that he never promised to let Mr. McKnight to go to work if he talked to him. Constable Langdon did tell Mr. McKnight that his lawyer would probably tell him not to say anything, but regardless they would still be going into the interview room and it was his option whether or not he wished to say anything to him. Constable Langdon denied that he said to Mr. McKnight that his lawyer did not have his best interests in mind.
[40] After McKnight spoke to his counsel, Constable Reis brought Mr. McKnight to the interview room. Constable Langdon testified that he met Mr. McKnight outside the room. There was no conversation outside the room. He denied that he asked Mr. McKnight what his counsel said to him. Constable Langdon entered the room after Mr. McKnight sat down.
[41] Constable Langdon testified that he never threatened or offered any inducements to Mr. McKnight in order to obtain a statement. He was never handcuffed during the process. In his opinion, Mr. McKnight was a respectful, cooperative and a mature adult at all times.
[42] The interview started at 4:07 pm and ended at 6:58 pm. At approximately 5:38 pm (page 54) Mr. McKnight admitted that he was in the vicinity of the home invasion robbery. He admitted that he drove the principles to the address and initially he waited outside in his car. However, Mr. McKnight entered the house to find out why they took so long to come out. He confessed that they took cash, jewelry, and credit/debit cards. At 5:56 pm (page 69) Mr. McKnight wept. After the police interview had concluded, Mr. McKnight was permitted to call his Aunt Carol and more or less admits his culpability to her over the phone and on video.
[43] Constable Langdon testified that he did not try to persuade Mr. McKnight to disregard his counsel's advice to remain silent during the following exchange found at page 79:
MCKNIGHT: So I don't know man, I'm just fucked up right now, like I can't, I don't know how to, I want, like I know my lawyer's telling me not to talk but like what am I supposed to say, like it was in front of me, like you know? (Inaudible)
18:25
LANGDON: You know, you know what, when it-, obviously me, being a Police Officer and a lawyer being a Defence Lawyer we have opposite points of view, okay? Um, the lawyer doesn't want you to say anything cause it makes their job difficult when it comes to defending you, right? But I'm the type of person, if I did something I did it, right? It's my responsibility, it's not somebody else's, it's mine. But a Defence Lawyer doesn't want you to say anything because it makes their job harder, you know, it's easy to defend an innocent person because they're innocent; if they're not innocent then you know?
[44] Constable Langdon testified that at that moment, he offered his personal opinion that if an accused talked to the police, the defence counsel's ability to defend his/her client became more difficult.
[45] In cross-examination, Constable Langdon confirmed that he had every intention to arrest Mr. McKnight when he attended 21 Division but was uncertain if he was going to be the officer that would be interviewing him. He also resisted the suggestion that the identification evidence in the case was weak and that was why he needed to interview Mr. McKnight. Constable Langdon testified that Mr. McKnight's car was seen on closed circuit video just after the robbery, but did acknowledge the police did not know who was inside the car at the time. Constable Langdon downplayed his desire to interview Mr. McKnight, notwithstanding that the police required evidence as to the identity of the other suspect(s).
[46] In cross-examination, Constable Langdon did not recall if he spoke to Dominque when he met Mr. McKnight in the lobby. He agreed that between 3:20 and 3:26 he left his car, entered 21 Division, met Mr. McKnight in the lobby, escorted him in to the small room, requested and received Mr. McKnight's health card and driver's license and placed him under arrest for robbery and the unauthorized use of stolen credit cards. He denied that there was any other conversation during that time frame. He never asked him about the robbery or stated to him there was a "change in plans", or that he was "mixed up with bad company". He also denied that he promised to release Mr. McKnight if he proved that he was not involved. He never said to Mr. McKnight that he was usually correct about these things.
[47] In cross-examination, Constable Langdon admitted that he was aware before the arrest that Mr. McKnight had never been arrested before.
[48] In cross-examination Constable Langdon denied that he escorted Mr. McKnight to the cell area. But once in the cell area, Constable Langdon agreed that Mr. McKnight asked several times what was going to happen next. Constable Langdon testified that he advised Mr. McKnight they will go into the interview room and have a discussion. He testified that at no point did Mr. McKnight state "I don't know anything about this" or that "I'm not involved". The officer denied that he was aware that there was no audio recording in the holding facilities notwithstanding that he has been a Constable with Peel Police Service for fifteen (15) years.
[49] When it came to Mr. McKnight's concerns about his work, Constable Langdon testified that the issue came up once and that it was agreed that Dominique would call his employer to advise that he would not be coming into work that evening.
[50] In cross-examination, Constable agreed that while waiting for counsel to call back he did say to Mr. McKnight that his counsel would tell him that he should not talk. But Constable Langdon disagreed that he made any comment regarding his counsel would not have his best interests in mind. He said that lawyers always provide that kind of advice and that all he said was regardless of the advice they were still going into the room and he was going to present the evidence. It was up to Mr. McKnight if he wished to respond. Constable Langdon did not tell Mr. McKnight that he could go to a cell rather than the interview room.
[51] In cross-examination, Constable Langdon testified that he never pressured Mr. McKnight to say anything to him in the interview room. Notwithstanding that during the interview Constable Langdon rolled up his sleeves, his demeanor changed and he increased his use of foul language. Finally, he felt that his use of the term "prove to me" was not pressure.
[52] Constable Reis testified that when he was at the front desk that afternoon he received a telephone call from Constable Henderson. He was advised that Mr. McKnight was attending 21 Division and will be arrested. Constable Reis was tasked to take Mr. McKnight into the booking area to search him. After Mr. McKnight spoke to counsel he took Mr. McKnight to the interview room. He testified that he never asked Mr. McKnight what he wanted to do after speaking to his counsel.
The Voluntariness Test
[53] When statements have been made to a person in authority, they are admissible only if the prosecution establishes beyond a reasonable doubt that the statement was not the result of oppression, threat (fear or prejudice), promise or as a result of circumstances of oppression or other police trickery. See: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 (S.C.C.), R. v. Singh, (2007), 225 D.L.R. (4th) 103 (S.C.C.), R. v. Hodgson, 127 C.C.C. (3d) 449 (S.C.C.) and R. v. T.(S.G.), 2010 SCC 20, 255 C.C.C. (3d) 1 (S.C.C.). No statement by an accused to a person in authority is admissible as part of the Crown's case, or in cross-examination, unless it is proved beyond a reasonable doubt to have been voluntary.
[54] Voluntariness is almost completely contextual. Because of the variety and complicated interaction of circumstances that can vitiate voluntariness, the inquiry is governed more by guidelines than by rules. A court should consider the entire circumstances surrounding the statement and ask if it gives rise to a reasonable doubt as to voluntariness.
[55] Oickle appears to suggest a two-stage test for voluntariness. First is the determination of whether the police acted improperly in obtaining the statement. If so, the second stage is the determination of the effect of the improper conduct on the accused. Does the improper conduct, in all the circumstances, raise a reasonable doubt that the will of the accused was overborne? If not, the statement is voluntary despite the improper conduct. (See: Oickle, supra.)
[56] A court should not focus on any particular aspect of the police conduct in isolation. Rather, factors going to voluntariness may work in combination. (See: Oickle, supra.)
[57] The basic consideration is whether there was a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise. A quid pro quo in an offer by a person in authority is the most important consideration when inducements are alleged, but not of itself determinative of voluntariness. The court must then determine whether the improper inducements be such that "standing alone or in combination with other factors, [they] are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. … While a quid pro quo may establish the existence of a threat or promise, it is the strength of the alleged inducement that must be considered in the overall contextual inquiry into voluntariness." (See: R. v. Spencer, 2007 SCC 11, 217 C.C.C. (3d) 353 (S.C.C.)).
[58] Although the test is largely subjective, dependent on whether there was such hope or fear in the mind of the accused, there must be some action by those in authority providing an objective basis for the subjective response. If there is no oppression or inducement, an accused's own timidity or subjective fear of the police will not make a statement inadmissible, unless external circumstances brought about by the police cast doubt on the voluntariness, or other circumstances such as not an operating mind are present. (See: R. v. Hobbins, 66 C.C.C. (2d) 289 (S.C.C.)).
[59] Once an accused in custody has had an opportunity to receive legal advice, the mere fact that he then states that he does not wish to speak to the police does not require the police to cease any questioning. (See: Singh, supra. and R. v. Hebert, [1990] 2 S.C.R. 151 at p.184).
[60] The presence or absence of a police caution is "not necessarily decisive" of the issue of voluntariness. It is "one factor and in many cases an important one". (See: R. v. Boudreau, 94 C.C.C. 1 (S.C.C.) at p. 3.
Analysis: Is the Statement Voluntary?
[61] The principles enunciated in R. v. W. (D.) are necessary to apply to assess credibility and reliability of Mr. McKnight and Constable Langdon testimony in this voir dire. I also bear in mind that trial fact-finders are "entitled to believe all, some or none of a witness's evidence." See: R. v. H. (S.M.), 2011 ONCA 215, 2011 CarswellOnt 1761 at para 8, leave to appeal refused 2011 CarswellOnt 12837, 2011 CarswellOnt 12838 (S.C.C.).
[62] I agree with the Crown's submission there were no overt threats of violence that prompted Mr. McKnight to participate in the video recorded interview. He did seem relaxed but uncertain while on video. He was not intoxicated by a drug or alcohol. He was not ill. However, I am persuaded by the defence submissions that the statement was involuntary based upon a number of factors that when taken together, in the context of this case, may have overborne Mr. McKnight's free will and right to silence.
[63] The factors that I have considered included the following:
(1) A violation of his right pursuant to section 10(b) section by undermining the advice that counsel provided.
(2) A veiled threat.
(3) An atmosphere of oppression.
(4) The systemic problem failing to audio record conversations between the arrested subjects and arresting police officers in the booking areas.
(5) The failure of Constable Langdon to keep notes of conversations in the small room and in the cell booking area.
[64] I found both witnesses compelling in the delivery of their testimony. Clearly Constable Langdon was an officer with a wealth of policing experience. In his fifteen (15) years' experience as a police constable he was very familiar with the criminal justice system, investigating criminal offences, dealing with accused parties, dealing with counsel, and interviewing suspects. But on the other hand, Mr. McKnight was a young adult, who had never been involved in the criminal justice system. Being arrested, taken into custody and interviewed were entirely unfamiliar occurrences to Mr. McKnight.
[65] I did not accept every aspect of Mr. McKnight's evidence. There were aspects to his testimony that gave me some pause for concern. For example, his abject denial that he was given the right to counsel and cautions by Constable Langdon were at odds with Constable Langdon's evidence that he provided the rights from his notebook while in the small room. I also struggled with his evidence on whether two numbers or just his Aunt Carol's number were taken from his phone. Coupled with his belief that the police must have entered into his property bag to obtain a second number. He obfuscated or muddled his evidence regarding whether or not he was given the primary caution at the outset of his detention. I would not expect an accused to recall those particular details with the same precision as would an experienced police officer.
[66] Mr. McKnight never resiled during a vigorous cross-examination regarding the nature of the off camera discussions. He was very clear that these discussions took place in the small room and in the booking area. Certainly the opportunity for the later conversations to have taken place were confirmed by the booking video and Constable Langdon's testimony. There was an abundance of conversation and arm gesturing that was observed on video while Mr. McKnight and the officer waited for the call back from counsel. Moreover, Constable Langdon was observed to approach and stand over Mr. McKnight. This, of course, was when according to Mr. McKnight, the officer denigrated counsel's advice. Constable Langdon testified that this was the moment that he told Mr. McKnight that counsel will just tell him to not say anything. This seemed to corroborate Mr. McKnight's version when the officer made the comments regarding counsel not having his best interests at heart. In my view, Mr. McKnight may have had a better recollection of the conversation since this was a unique event in his life rather than a customary booking and interview of a suspect for an experienced police officer such as Constable Langdon. Of course, an audio recording of the conversation in the booking area or fulsome notes, would have unequivocally resolved the issue. This is, of course, not a legal requirement. However, police services that choose to create imperfect video monitored and recorded evidence of the detainee while in custody, are inadvertently creating evidence that may adversely impact the Crown's ability to meet the voluntariness test. The fact that Peel Regional Police Service does not have audio recording capabilities along with the audio recording in the booking area is unacceptable. A police policy or practice of only video recording the booking area without an audio recording was recently criticized in the decision of R. v. Suyat-Pavalaraj, [2017] O.J. No. 5108. At para. 50 Justice West stated the following with respect to the same practice followed by the York Regional Police Divisions:
In York Regional police stations the booking area is only equipped with video monitoring and recording. The equipment used by YRP has no audio recording capability, which would detail the conversations between detainees and the booking sergeant or arresting officer. It is difficult to understand and frankly, it is unacceptable in our technologically modern society, why this practice continues. It is my understanding from cases I have heard in Toronto and Oshawa that booking areas in police stations in those jurisdictions are both video and audio recorded. It is my view adding audio to the recording of the booking area should be seriously considered by YRP given the number of occasions when an audio recording would establish exactly what was said by the booking sergeant and the accused.
[67] Having said that, I found that Constable Langdon was not an insincere witness. Far from that, he was measured and calm in his testimony. He did admit to losing his cool to a certain extent in the interview room by raising his voice and swearing. He did roll up his sleeves. He admitted that he touched on the role of counsel providing legal advice to a detainee and counsel's fundamental purpose in the criminal justice system both off camera in the booking area and on camera in the interview room. Which, in my mind did not necessarily enhance his testimony. In other words, his admissions and the court's observation of the video recorded interview added some support to counsel's submissions, whether intentionally or not, this created an atmosphere of oppression and veiled threats in the mind of Mr. McKnight. For example, at page 31 of the transcript of the interview, approximately 40 minutes into the interview, Constable Langdon said to Mr. McKnight the following:
LANGDON: You need to figure out how you're gonna explain and tell me that you were not involved in this home invasion, cause
16:58 I told you everything I have now.
MCKNIGHT: Yeah.
LANGDON: I'll go get some more. But you need to figure out what you're gonna show me now to prove that you were not involved in this home invasion robbery, do you understand?
MCKNIGHT: Okay.
[68] An accused does not have to do anything against his/her will nor does an accused have to prove anything and therefore, the above-mentioned statements made by Constable Langdon, in my view, contained a veiled threat that if he did not "prove" himself innocent, something adverse may have happened to him or he would be in further difficulty.
[69] In the transcript at page 54 at approximately one hour and twenty minutes into the interview. Constable Langdon stated the following to Mr. McKnight after which Mr. McKnight admitted some involvement:
LANGDON: Help me out here pal. Show you're remorseful for your mistakes, you're trying to help your cousin out, you were trying to protect your cousin. What was it? Were you forced into it, did he make you do it?
MCKNIGHT: No it wasn't-, I didn't-, he didn't make me like, I didn't, I didn't go in.
LANGDON: What do you mean you didn't go in? Who went in?
MCKNIGHT: I was, I was pr-, I was the driver.
[70] Standing alone each statement to Mr. McKnight did not amount to a veiled threat, however, these comments considered together, the loud tone, the swearing, and a general change in demeanour, in my view, these were not serious threats but they would nevertheless be perceived as threats.
[71] With respect to the lack of a primary caution or a clearer explanation of the concept of whatever he may have said "could be given in evidence" vs "used against him", I am not satisfied that this was clearly understood by Mr. McKnight. Constable Langdon gave him the primary caution and even tried to explain the concept just after his arrest at 3:26 pm. At the outset of the interview the primary caution was noticeable absent. At page four (4) of the transcript Constable Langdon stated the following:
LANGDON: All right, just so you know like the cells (Inaudible) we're in an interview room here now at 21 Division, it's interview room four with audio and video.
MCKNIGHT: Okay.
LANGDON: Okay? So we're being audio and video recorded right now. Uh, first things first I'm gonna read you what's called a Secondary Caution.
MCKNIGHT: Okay.
LANGDON: Remember how I went through your rights to counsel and caution and everything? So you were in cells, you were with
16:30 the Cells Officer, so if you have spoken to any Police Officer or to anyone with authority or if any such person has spoken to you in connection with this case, I want it clearly understood that I do not want it to influence you in making any statements.
MCKNIGHT: Okay.
LANGDON: Do you understand that?
MCKNIGHT: Yeah.
LANGDON: So the only other Officer you came in contact with since I read you your rights to counsel and caution was the Officers there in cells.
MCKNIGHT: Yeah.
LANGDON: And whatever they said to you I don't want it to influence you in talking to me or saying anything that you don't wanna say.
MCKNIGHT: Okay.
LANGDON: Do you understand that?
MCKNIGHT: Yep.
LANGDON: Great. So you spoken to Adel [Ph]?
MCKNIGHT: Yeah.
LANGDON: Yep. Did she explain everything to you satisfactory?
MCKNIGHT: Fairly, yeah, enough, I guess.
LANGDON: Enough?
MCKNIGHT: Yeah.
LANGDON: Okay. You got any questions of me, just uh, just let me know, okay?
[72] The absence of a primary caution does not preclude or render a statement involuntary. See: R. v R.B., 2011 ONCA 194, [2011] O.J. No. 1042 (C.A). However, the primary caution was not particularly clear and was provided an hour before the interview commenced. In my view, it seemed incongruous that the officer did not review the primary caution when he reviewed the secondary caution with Mr. McKnight. The standard rights and cautions are generally understood by judges and police officers. However, officers need the wording provided on a card or recorded in a notebook. It is usual for officers who commence a video recorded interview of an accused to confirm with the accused that the rights and cautions that were given and understood. Often police officers confirm on the record that the accused has had an opportunity to speak to counsel and then repeat the caution and provide the secondary caution. See R. v. Crichton, 2016 ONSC 5693, [2016] O.J. No. 4785 paras. 30 and 31 (S.C.J.). Moreover, I found that Mr. McKnight was not unequivocal that he did understand counsel's advice when he answered "yeah, fair enough" on page four (4).
[73] I had some difficulty accepting Constable Langdon's evidence that he was not certain that he wanted to interview Mr. McKnight after his arrest. Constable Langdon testified that when he contacted Mr. McKnight that day that he was unsure if he or someone else would conduct an interview. I find that difficult to accept. He called Mr. McKnight a second time and asked him to wait for the officer at 21 Division. He was from a specialized bureau. He had other members of his unit at 21 Divisions that could have arrested and processed Mr. McKnight. This was a circumstantial case. Beside Mr. McKnight's cousin being involved, the police were looking for the third suspect's identity. I find as a fact that Constable Langdon wanted Mr. McKnight interviewed.
[74] I also had difficulty with Constable Langdon's assertion that he was unaware that the Peel Police booking facilities were not audio recorded. He was a police officer that has fifteen (15) years' experience with Peel Police Service, and I find that he would have knowledge of these area were only video recorded.
[75] Constable Langdon was cross-examined on whether or not he had a conversation outside of the interview room with Mr. McKnight before the interview commenced. The officer indicated that he did not as Mr. McKnight was already seated when he entered. However, the video recorded interview demonstrated that he and Mr. McKnight entered the room together. This did raise the possibility that Mr. McKnight and the officer may have had a discussion off camera outside of the interview room.
[76] Counsel argued that Constable Langdon offered an inducement to Mr. McKnight which motivated him to provide a statement. The inducement was offered in the form of a quid pro quo in exchange for his video recorded statement. Essentially, Mr. McKnight argued that the inducement was offered twice. The inducement alleged was that if Mr. McKnight talked to Constable Langdon, he would be released from the Division and make it to work that evening. I am not satisfied that this inducement was in fact made to Mr. McKnight. I accept the officer's evidence that he did not offer an inducement to Mr. McKnight. I also find that Mr. McKnight did not reasonably hold this belief that if he talked to the officer that he would get to work for the following reasons:
(1) Before Mr. McKnight entered the interview room he had already given his work number to Constable Langdon to pass on to Dominique to call. According to Mr. McKnight's testimony Dominique was to advise his work that he would not be coming in due to "personal legal issues".
(2) Furthermore, during his consultation with counsel, Mr. McKnight's Aunt was involved in the telephone call as well. According to Mr. McKnight's evidence his Aunt Carol asked to get a message to his work.
(3) During the interview Mr. McKnight never asked Constable Langdon if or when he could leave for work.
(4) He never expressed surprise or shock that he was going to be held for a bail hearing and not make it into work, Mr. McKnight only expressed an interest in his cousin's circumstances. Once told that he was being held for a bail hearing he asked Constable Langdon at page 68 the following:
MCKNIGHT: And how about my cousin, you can't discuss that or is it the same process?
LANGDON: The same process.
MCKNIGHT: So he's here too?
(5) When he talked to his Aunt Carol while he was inside the interview room, Mr. McKnight was surprised to learn that Dominique never came to pick up his Aunt Carol nor had she called his work. He wanted to send his work number to his Aunt Carol for her to call his work. I found that the issue that the work would be called had been settled before he entered the room.
[77] I disagree with counsel's submission that the act to lure Mr. McKnight to 21 Division was an act of police trickery or a ruse that was wrapped up in the inducement. I found that Constable Langdon acted reasonably when he did not disclose to Mr. McKnight that upon his arrival that he was going to be arrested. Appropriately, he did not want Mr. McKnight to flee. I did not accept that the ruse adversely impacted Mr. McKnight's state of mind. Mr. McKnight was aware that his car was seized, and that it was connected to a robbery that led to his cousin being charged. This is not to say that Mr. McKnight should have expected to be arrested but it was reasonable to assume that he may be asked a few questions about the car.
[78] I have considered Mr. McKnight's personal characteristics and the circumstances which included the following: (See Oickle, supra. para. 42 and R. v. Wabason, 2018 ONCA 187, [2018] O.J. No. 1012 (C.A.) paras. 20 and 21.
(1) His youthful age.
(2) The lack of previous police contact.
(3) Fifty-nine (59) pages or approximately one hour and twenty minutes of his refusal to admit any involvement or culpability.
(4) Two attempts to assert his counsel's advice not to say anything at pages 67 and 79 of the transcript.
(5) He was never given the option to go to the cells.
(6) He was told despite counsel's advice that he was being taken to the interview room and then could choose if he wished to provide a statement.
(7) Constable Langdon's change in tone and demeanour, including rolling up his sleeves and swearing.
(8) Constable Langdon's repeated use of terminology during the interview that Mr. McKnight "needed" to say something "to prove" that he was not involved. In my view, this was an effort to completely erode his confidence in his counsel's advice.
[79] In all the circumstances, collectively taken together and examined in context, Mr. McKnight's statements to Constable were not an expression of his free will to make that statement.
[80] At the conclusion of submissions, I did raise with counsel the issue of whether or not the video recording that captured Mr. McKnight speaking to his Aunt Carol was admissible. The Crown wished to rely upon it and the defence opposed its admissibility. I agree with the defence that since the other party cannot be heard, this was a one sided conversation which was not complete and without context. Furthermore, I cannot be certain that Mr. McKnight was aware that his conversation was being recorded.
[81] In my view, the Crown has failed to satisfy the onus of proving the statement to be voluntary.
[82] If I am incorrect in my assessment that the Crown failed to prove beyond a reasonable doubt that the statement was voluntarily made, I would still exclude the statement from the trial based on a violation of Mr. McKnight's right to counsel pursuant to section 10(b) of the Charter. I have declined to find a violation of Mr. McKnight's right under section 10(a) of the Charter. I will explain my reasons below.
The Charter of Rights and Freedoms — Section 10(a)
[83] Section 10(a) of the Charter provides that "everyone has the right on arrest or detention to be informed promptly of the reasons therefor".
[84] The reasons for detention must be provided immediately upon arrest or detention and may only be delayed on the basis of reasonable concerns for officer or public safety: See R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 (S.C.C.)
[85] The reasons for detention must be explained to the detainee "in clear and simple language, of the reasons for their detention". (See R. v. Mann, 2004 SCC 52, [2004] S.C.J. 49 (S.C.C.)
Analysis: Was There a Breach of Section 10(a) Rights?
[86] The onus is on the defence to establish that on a balance of probabilities that Mr. McKnight's Charter rights were breached.
[87] I see very little merit to this argument. Mr. McKnight was met by Constable Langdon in the public lobby of 21 Division. He was accompanied by Dominque. I am satisfied that Mr. McKnight was not fully aware of any criminal jeopardy that he may have been facing prior to attending 21 Division, despite that he had been told by his Aunt Carol that his car had been seized and his cousin had been charged with Robbery.
[88] While the decision had already been made to arrest Mr. McKnight, I find that it was perfectly proper to bring Mr. McKnight to the small room in order to perfect the arrest in order to protect his privacy. There was no delay in informing Mr. McKnight of the reasons for the arrest and his detention. At 3:26 pm Mr. McKnight was arrested. He was promptly told in "clear and simple language" that it was for robbery and unauthorized use of credit cards. There was only several minutes between the introductions until he was arrested. In these circumstances, I find there was no breach of section 10(b) of the Charter.
Section 10(b) of the Charter: Applicable Principles of Law
[89] Section 10(b) of the Charter states that "everyone has the right on arrest or detention to retain and instruct counsel without delay and be informed of that right".
[90] Detention is a suspension of one's liberty interest by a significant physical or psychological restraint. Absent physical restraint or legal obligation to comply with police demands, psychological detention is established if a reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice. Relevant factors include:
a) The circumstances that gave rise to the encounter as they would reasonably be perceived by an individual;
b) the nature of police conduct; and
c) the particular characteristics or circumstances of the individual where relevant.
[91] The inquiry should be a realistic appraisal of the entire interaction as it developed, not a minute parsing of words and movements. Police that are uncertain whether their conduct is having a coercive effect may state in unambiguous terms that there is no obligation to answer questions and that the subject is free to go. (See: R. v. Grant, 2009 SCC 32, 245 C.C.C. (3d) 1 (S.C.C.))
[92] The Supreme Court has recognized that it is a violation of section 10(b) for police to seek to undermine the lawyer-client relationship by belittling the accused's lawyer. In R. v. Burlingham, [1995] 2 S.C.R. 206 (S.C.C.) at para. 14:
It makes no sense for s. 10(b) of the Charter to provide for the right to retain and instruct counsel if law enforcement authorities are able to undermine wither an accused's confidence in his or her lawyer or the solicitor-client relationship.
[93] The Court of Appeal in R. v. Mujku, [2011] O.J. No. 284 commented on the vagaries of the police commenting on the quality or soundness of legal advice provided to a detainee at para. 36 which states:
The police tread on dangerous ground when they comment on the legal advice tendered to detainees. In our view, however, the trial judge did not err in finding that the impugned comment made by the police officer did not violate, or undermine to the point of breach, Chak's s. 10(b) right to counsel. It was open to the trial judge to find that the police officer simply made the point that it was up to Chak, not his lawyer, to decide whether or not to make a statement. The circumstances here are distinguishable from R. v. Burlingham, [1995] 2 S.C.R. 206, at para. 14, where the court held that "s. 10(b) specifically prohibits the police, as they did in this case, from belittling an accused's lawyer with the express goal or effect of undermining the accused's confidence in and relationship with defence counsel." We see no basis upon which to interfere with the trial judge's finding that the comments of the police officer in this case did not rise to that level.
[94] In R. v. Kapoor, [2017] O.J. No. 3677 Justice Wakefield stated at para. 17 The case at bar is very different from the police officer response as set out in R. v. Rose, [2009] O.J. No. 6445. Having been told counsel had advised against answering questions, "she said I shouldn't say nothing more to you", responded, "it's up to you. If you're following her advice, you follow her advice. I don't take offence to it". That response helped result in the subsequent statements of that accused being found admissible and no Charter breach.
[95] In R. v. Fulton, 2016 ONSC 2510, [2016] O.J. No. 1896 the court ruled that a suspect's statement was not proven to be voluntary. On the issue of undermining the suspect's legal advice the court stated: "He [the interviewing police officer] suggests that the advice given by duty counsel is contrary to the accused's best interests, because the accused could easily clear things up, by making what the police misrepresented to be an exculpatory statement."
[96] Justice Bielby in R. v. Crichton, 2016 ONSC 5693, [2016] O.J. No. 4785 (S.C.J.) stated at paras. 25 and 26:
In regards to lawyer denigration, I accept the submissions of the Crown that the comments made by the officer with respect to the respondent's lawyer did not amount to denigration to the extent necessary to impact on the voluntariness of the statement. In that regard I rely on R. v. Mujku [2011] O.J. No. 284, a decision of the Ontario Court of Appeal, which at paragraph 36 held,
"The police tread on dangerous ground when they comment on the legal advice tendered to detainees. In our view, however, the trial judge did not err in finding that the impugned comment made by the officer did not violate, or undermine to the point of breach, Chak's s. 10(b) right to counsel. It was open to the trial judge to find that the police officer simply made the point that it was up to Chak, not his lawyer, to decide whether or not to make a statement. The circumstances here are distinguishable from R. v. Burlingham, [1995] 2 S.C.R. 206, at para. 14, where the court held that "s. 10(b) specifically prohibits the police, as they did in this case, from belittling an accused's lawyer with the express goal or effect of undermining the accused's confidence in and relationship with defence counsel." We see no basis upon which to interfere with the trial judge's finding that the comments of the police officer in this case did not rise to that level."
Officer Deleeuw's comments were akin to those under review in Mujku and were not an attempt to belittle the respondent's lawyer and undermine the respondent's confidence in his lawyer.
[97] Justice Baltman's decision in R. v. Thind, 2011 ONSC 2054, [2011] O.J. No. 6397 (S.C.J.) was an example of police denigration of counsel at the extreme end of the spectrum which led to a finding of a gross infringement of section 10(b). She stated the following at paras. 124 and 125:
The extract that I've set out at para. 28 demonstrates that Detective Drover not only maligned the accused's counsel, but the entire defence bar. In so doing he betrayed the very system he is sworn to uphold. Defence counsel play a vital role in the criminal justice system. If accused persons are persuaded they cannot trust their lawyers, the defence bar becomes ineffective; judges and juries can then have no confidence that police powers are being held in check, and will therefore be reluctant to convict even where the evidence warrants such a result.
In any case, lawyer bashing does not promote public confidence in the administration of justice, any more than police bashing does. No doubt within each of those vocations there is a small percentage of individuals with questionable ethics. But that does not entitle police to vent their frustrations to suspects facing serious criminal charges. However stressful the circumstances he was working under, Detective Drover's prolonged denigration of the defence bar was a gross infringement of the accused's right to counsel.
Analysis: Was There a Violation of the Section 10(b) Rights?
[98] In order to find a breach of section 10(b) on a balance of probabilities I would have to make a finding that it was more likely than not that Constable Langdon said to Mr. McKnight that his lawyer did not have his best interests in mind by advising Mr. McKnight that he should not to say anything to the police. If that fact is established is that enough to undermine Mr. McKnight's confidence in his counsel's advice?
[99] I find that it was more likely than not that the statement was made by Constable Langdon to Mr. McKnight in the booking area. It is unfortunate that the booking area is only video recorded and not audio recorded as well. The officer was engaged in conversation with Mr. McKnight during the booking process. It was commendable that he took the proactive steps to contact counsel. His efforts to permit Mr. McKnight to access his phone to obtain his Aunt Carol's phone number was to facilitate counsel of choice. However, as can be seen on the video Constable Langdon left the booking desk to speak to Mr. McKnight while he was seated on the bench. Constable Langdon admitted in cross examination that he said to Mr. McKnight that "the lawyer is going to say that you should not talk". I find that Constable Langdon had every intention to interview Mr. McKnight regardless what his counsel had told him. In my view, the police can continue questioning in the face of repeated statements that the suspect does not wish to say anything on the advice of counsel. however, the timing of Constable Langdon's statement, according to Mr. McKnight, was proximate in time to the moment that Mr. McKnight claimed that the officer told him that his lawyer did not have his best interests in mind and will tell him not to say anything to the police.
[100] I also find that the officer did express these views on the basis that he provided his opinion on a further occasion during the formal interview at 6:25 pm (page 79) when he said to Mr. McKnight:
LANGDON: You know, you know what, when it-, obviously me, being a Police Officer and a lawyer being a Defence Lawyer we have opposite points of view, okay? Um, the lawyer doesn't want you to say anything cause it makes their job difficult when it comes to defending you, right? But I'm the type of person, if I did something I did it, right? It's my responsibility, it's not somebody else's, it's mine. But a Defence Lawyer doesn't want you to say anything because it makes their job harder, you know, it's easy to defend an innocent person because they're innocent; if they're not innocent then you know?
[101] In my view the comments were made to undermine Mr. McKnight's confidence in his counsel's advice and therefore I find that Constable Langdon breached Mr. McKnight's section 10(b) rights.
Section 24(2) of the Charter — Exclusion of the Statement
[102] As I have explained above, I have found that Mr. McKnight's right under section 10(b) was breached on the basis of the denigration and dismissiveness of the counsel's role that the advice that was provided. The issue is whether the statement and the admissions following the breach should be excluded from the evidence of Mr. McKnight's trial pursuant to section 24(2) of the Charter.
[103] The decision in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 sets out the three criterion a court must assess and balance when faced with an application for exclusion:
(1) The Seriousness of the Charter infringing state conduct – The more severe or deliberate the state conduct, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in, and ensure state adherence to, the rule of law.
(2) The Impact of the breach – To what extent did the breach actually undermine the interests of the accused protected by the infringed right? The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.
(3) Society's interest in the adjudication of the case on its merits – Will the truth seeking function of the criminal trial process be better served by admission or exclusion of the evidence? Reliability of the evidence and its importance to the Crown's case are relevant at this stage.
The Seriousness of the Charter-infringing State Conduct
[104] Counsel is an accused's ally in any contest between the individual and the forces of the state. In particular, the right to counsel is fundamental in preserving the right against self-incrimination.
[105] The effort to undermine the accused's confidence in the quality of counsel's advice is serious. The officer voiced his opinion on the advice that counsel would provide while Mr. McKnight was waiting to speak to his counsel. The officer was aware that Mr. McKnight had never been arrested before. He stood over Mr. McKnight while he was seated on the bench. The officer can be seen gesturing to the interview room.
[106] I cannot find the remarks were made in good faith or through error. On the first branch of Grant I find that this was misbehavior and points toward exclusion of the statement.
The Impact of the Breach on the Charter-protected Interests of the Accused
[107] Exclusion is the general rule because violation of the right to counsel undermines the detainee's right to make a meaningful and informed choice whether to speak, the related right to silence, and, most fundamentally, the protection against testimonial self-incrimination.
[108] Mr. McKnight testified that he was impacted by Constable Langdon's remarks. He testified that his remarks made him feel that his counsel was not on the phone to assist him and that he was "conflicted and concerned" about what the officer said about his lawyer not having his best interests in mind.
Society's Interest in the Adjudication of the Case on its Merits
[109] There are competing factors in the third branch. Constable Langdon's conduct should draw condemnation, but on the other hand society has a strong interest in seeing this serious case tried on its merits. Statements that are the product of an improper police tactic designed to undermine the fundamental right to counsel, may be unreliable and therefore favours exclusion.
[110] Unlike physical evidence, a statement obtained following a Charter will be considered less than reliable. See: R. v. Mahumud, 2010 ONSC 5305, at para. 25:
In most cases, a statement obtained following a Charter violation will be considered less than reliable. Unlike physical evidence, such as a weapon or drugs, or scientific evidence, such as DNA analysis, a statement does not possess any inherent reliability. A statement may be true or untrue. The risk of unreliability is increased when the statement is obtained following a charter violation.
[111] I was candidly advised by the Crown that the exclusion of Mr. McKnight's statement will not result in the Crown's case being completely undermined.
[112] In my opinion, the integrity of our criminal justice system is better protected by the exclusion of this evidence than by its admission.
Conclusion
[113] The statement at issue I deemed involuntary. The right to follow and have confidence in counsel's advice is of paramount importance in our criminal justice system. The serious Charter violation of the fundamental right to counsel cannot be condoned, particularly in the face of the officer's reckless statements and conduct. Accordingly, in my opinion, the evidence must also be excluded pursuant to section 24(2) of the Charter.
Released: November 14, 2018
Signed: Justice Paul O'Marra