Ontario Court of Justice

Date: 2023 05 19 Court File No.: Toronto 22-70005828

BETWEEN:

HIS MAJESTY THE KING

— AND —

RICARDO CHARLESTON

Application to Exclude Evidence Charter of Rights and Freedoms sections 8, 9, 10(a), 10(b) and 24(2) Voluntariness Voir Dire

Before: Justice B. Jones

Heard on: April 3, 4, and May 12, 2023 Reasons for Judgment released on: May 19, 2023

Counsel: E. Jackson, counsel for the Crown H. Gonzalez, counsel for R. Charleston

Jones J.:

Introduction

[1] Mr. R. Charleston is charged with one count of assault against Ashely Draper on August 31, 2022.

[2] The Crown seeks to introduce utterances Mr. Charleston provided to PCs Singh and Williams during their investigation. The Crown must prove these statements were provided voluntarily.

[3] Mr. Gonzalez filed an application seeking a ruling that his client’s rights were violated under sections 8, 9, 10(a) and 10(b) of the Charter and that any statements be deemed inadmissible under section 24(2). He also seeks a ruling that the officers’ observations of Ms. Draper’s injuries be excluded as they were obtained as a result of a warrantless search of his client’s residence.

[4] A blended hearing was conducted on April 3, 4 and May 12, 2023.

Overview of the Evidence

[5] On August 31, 2022, PCs Singh and Williams were on duty with the Toronto Police Service. They received information about multiple “unknown trouble” calls at 50 River Street. One caller said that a female was asking “for another black eye” and the caller could hear banging noises, someone running around, and a male person’s voice. The caller indicated the female said, “Stop hitting me”, and was screaming. Another caller stated that it “sounded like a woman was getting hit.”

[6] PC Singh arrived at 50 River Street at approximately 8:38 or 8:39 pm. He believed he was there to investigate a domestic abuse situation. His primary goal was to find the female victim. He turned on his body-worn camera and his interactions with the residents of 50 River Street were recorded.

[7] 50 River Street was a standard townhouse but PC Singh’s investigation quickly revealed that it was divided inside into multiple units. Each unit had a resident or residents.

[8] PC Singh spoke to a male resident who opened the door. He claimed to not have heard anything troubling. Shortly after this conversation began, another male person, subsequently identified as Mr. Charleston, approached the officers. He was complaining about his ankle bracelet and wanted to know if the officers were sent to assist him with fixing it.

[9] While PC Singh believed he should prioritize finding the female victim described in the calls, he also turned his attention towards assisting Mr. Charleston. He believed this might assist him to determine who else lived at 50 River Street.

[10] The officers and Mr. Charleston walked down a narrow path between 50 River Street and another building to the back. There, Mr. Charleston stood on a set of stairs that lead into the rear entrance of the home. Mr. Charleston told the officers if they could not help with the bracelet he just wanted them to leave. He was not very cooperative with their requests for information and would not even provide his name. He was concerned they might want to arrest him due to the problem with his bracelet.

[11] To allay any of his fears, the officers informed Mr. Charleston that he could remain inside his unit and that they would talk to him later.

[12] While they were speaking to Mr. Charleston outside the rear entrance, a man and a woman exited the building. They resided in one of the units inside. They refused to cooperate with the police and left very quickly. PC Singh did not see any injuries on the woman and assumed the call was not about her without any other information.

[13] PC Singh was able to contact one of the original callers to get more information about what she heard and why she called the police. She indicated the noise was coming from a unit on the main level of the house. She was a resident as well who had left before the police arrived. She did not feel safe there and did not want to associate with the man and woman she believed were the focus of her call.

[14] PCs Singh and Williams left Mr. Charleston alone for a considerable period of time while they continued their investigation. They did not consider him to be detained. He was, at most, a possible suspect for the domestic assault call. They still needed to locate the female in need of assistance. They could not conclude Mr. Charleston was involved in any criminal activity at this point. All they knew was that a male person was responsible, but there were multiple male persons at this address.

[15] The officers contacted Recovery Sciences Corporation (“RSC”) for more information about the situation regarding Mr. Charleston’s bracelet. They learned he was subject to court-ordered conditions and he was arguably breaching at least one of those conditions by not turning himself into the police when the bracelet malfunctioned. At approximately 10:38 pm they told him he was not under arrest, but he was under their custody. In cross-examination, PC Singh accepted Mr. Charleston was detained at this point and he was obligated to provide Mr. Charleston with his right to counsel. Yet he did not.

[16] PC Singh heard a female voice coming from a window next to them. He was concerned this may be the woman at the centre of the call. PC Williams testified that the woman exited the building temporarily and went back inside. PC Singh turned the audio for his body-worn camera off. There was no explanation for why this occurred. He testified he could not remember why he muted the audio. The video portion of the footage demonstrated that he was speaking to Mr. Charleston at this time. There is therefore no record of what was said to Mr. Charleston or what he said to the officers. Neither PC Singh nor PC Williams made any notes that could assist them with their testimony for this time.

[17] Eventually, a representative from RSC attended and replaced Mr. Charleston’s bracelet. Mr. Charleston believed he was free to leave and attempted to walk away. PC Singh testified that Mr. Charleston was no longer detained regarding the bracelet matter at this point. Nonetheless, when Mr. Charleston attempted to leave, the officers insisted that they still needed to enter his home to find the woman who was the subject of their original investigation.

[18] Mr. Charleston entered the residence alone, and then quickly returned to the officers to inform them that the woman was sleeping. The officers insisted on speaking to her themselves and they had Mr. Charleston lead them into the building to locate her. Mr. Charleston asked the officers if they wanted to come to his place, and PC Singh replied, “Yeah, we just gotta make sure.” [1] He also told Mr. Charleston that “We need to talk to her.” [2]

[19] Mr. Charleston took the officers to his bedroom where they located Ms. Draper. She had blood on her leg, and injuries to her eye, upper lip and face. While she told the officers she was not assaulted by Mr. Charleston they did not accept her version of events. PC Singh took PC Williams aside and asked if they should arrest Mr. Charleston at 11:09 pm. Shortly thereafter, they decided to arrest him for assault at 11:13 pm.

[20] PC Singh remained with Ms. Draper who was emotionally very upset and threatening to harm herself. She screamed that Mr. Charleston did not assault her. PC Williams escorted Mr. Charleston to a marked police vehicle and then returned to assist PC Singh. For at least ten minutes, Mr. Charleston was left alone in the police vehicle. He had not been provided with his rights to counsel.

[21] At 11:31 p.m. PC Singh provided Mr. Charleston with his rights to counsel in the squad car. He indicated he wanted to speak to Mr. Alan Lobel. After being transported to 51 Division, the officers attempted to contact Mr. Lobel unsuccessfully. Instead, Mr. Charleston spoke to duty counsel.

Position of the Parties

[22] Mr. Gonzalez submits that the Crown has failed to meet its onus that any statements made by Mr. Charleston were provided voluntarily. The primary flaw in the Crown’s application is the lack of a proper evidentiary record. The officers’ turned off the body-worn camera for various periods and did not create any reliable notes about what occurred. Nor did they have an independent recollection when they testified.

[23] Regarding the Charter, he submits his clients’ rights under sections 8, 9, 10(a), and 10(b) were violated. Mr. Charleston was detained for a domestic violence investigation far earlier than the officers’ accepted, and certainly well before he was formally arrested. The officers may have been relatively polite with Mr. Charleston but made it clear to him that they viewed him as a suspect and did not believe everything he said. They should have provided him with his rights under sections 10(a) and (b) but instead allowed him to be subject to an ongoing investigation without understanding the jeopardy he was facing for hours. At multiple points in the investigation, the officers had time to place Mr. Charleston in contact with counsel but simply failed to do so.

[24] Mr. Gonzalez also submits that the lack of any information identifying Mr. Charleston specifically as a suspect who may have committed the assault renders any detention that did occur arbitrarily.

[25] The search of Mr. Charleston’s unit was done without a warrant. The doctrine of exigent circumstances cannot assist the Crown as the officers’ conduct demonstrates they did not view this situation as exigent.

[26] Ms. Jackson submits Mr. Charleston’s utterances in the initial portion of the officers’ interactions with him were voluntary. He initiated the contact and nothing oppressive happened. She concedes he was detained at 10:38 pm once the officers learned he was on court-ordered conditions for the ankle bracelet and does not seek to introduce any statements made after that point as the officers were obligated to provide him with his right to counsel.

[27] She further concedes he should have been provided with his right to counsel at that point but argues he was not formally detained on the domestic violence investigation until the officers formed grounds to arrest him at 11:09 p.m. She also conceded no questions should have been asked of Mr. Charleston after this point.

[28] Ms. Jackson asks me to consider the very chaotic situation that arose for the officers after they located Ms. Draper. The officers may not have acted perfectly but perfection is not the standard by which their conduct should be reviewed. They were genuinely trying to assist Mr. Charleston throughout the night and any lapses in their obligations were borne out of their inexperience.

[29] The decision to search Mr. Charleston’s residence was justified by exigent circumstances even if the officers should have acted sooner. They were entitled to ensure the possible victim of abuse was located and safe, however long it took them.

[30] Despite Ms. Jackson’s very fair concessions, I find it necessary to fully adjudicate the defence application to assess the totality of any Charter violations that occurred in this case and to provide full context for a section 24(2) analysis.

Law and Analysis

(i) Charter sections 9, 10(a) and (b)

[31] Central to any determination of voluntariness in this case as well as the various Charter arguments is determining when Mr. Charleston was detained by the investigating officers. In R. v. Grant, 2009 SCC 32, at para. 41, the Supreme Court summarized the appropriate factors to consider when determining whether a reasonable person in the circumstances of the accused would conclude that she had been detained. Three factors must be considered and balanced:

(a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintain general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[32] The fundamental question is whether a reasonable person, in his circumstances, would have felt deprived of the freedom to simply leave the scene of the investigation: see R. v. Le, 2019 SCC 34, at para. 25.

[33] Mr. Charleston chose to approach the officers initially. He asked them for assistance with his ankle bracelet, mistakenly believing they had been sent to his location for that purpose. However, as their conversation continued, it was clear Mr. Charleston viewed the presence of the officers with some trepidation. He voiced, repeatedly, concerns for his own liberty interests and his subjective assessment that the officers would inevitably take him into custody. For example, he made the following statements within the first 20 minutes of the officers’ arrival:

• “You gonna arrest me right now?” [3]
• “Arrest me” [4]
• “You’ll fucking lock me up” [5]
• “I’m gonna go to jail” [6]

[34] He also informed the officers he would not cooperate with their investigation. When he was asked if anyone was in his unit, he told them, “I’m not answering any more questions.” [7] He later told the officers to “get out of my house”. [8]

[35] The officers continued to speak to Mr. Charleston and explained that they were simply trying to determine what happened and if there is a woman in potential jeopardy. They assured him they were going to help him with his ankle-bracelet problem. He ultimately accepted their office of assistance. As time passed, he became increasingly relaxed in their presence. He joked with them while he sat on the stairs to the rear entrance to the building. He took a cigarette from PC Williams.

[36] PCs Singh and Williams testified that they did not consider Mr. Charleston detained during this initial portion of their investigation. I accept this portion of their testimony. Furthermore, viewed objectively, I do not find that Mr. Williams was detained. He was able to control the conversation with the officers and nothing about his demeanour on the video footage suggests he felt intimidated by their presence. Whatever his original apprehensions about the officers’ reasons for being at 50 River Street, he was not physically nor psychologically detained at this time.

[37] The officers left Mr. Charleston’s presence for over an hour and they attempted to gather information to assist with their investigation. They returned and located Mr. Charleston outside the rear entrance to the building at 10:38 pm, nearly two hours after they originally arrived. They learned that he was on court-ordered conditions regarding the ankle bracelet and informed him he was “in their custody” and he must await the arrival of the technician from RSC. Ms. Jackson does not dispute that Mr. Charleston was detained for a criminal purpose as a result. I find that he was detained for a possible breach of his court-ordered conditions relating to his ankle bracelet, but that the officers had a lawful basis to do so.

[38] Despite detaining Mr. Charleston, the officers did not inform him of his right to counsel. This is a straightforward violation of his section 10(b) Charter right. While he was detained, Mr. Charleston responded to several police questions. The officers saw a woman walking inside the residence near what might be Mr. Charleston’s unit, and they asked him if it was his girlfriend. He said, “I don’t know what that is, bro.” He was then asked if the woman was in his bedroom, and he replied, “I don’t know man.” PC Singh testified these observations and responses from Mr. Charleston formed part of the basis for his subsequent decision to re-enter the residence and seek out this woman to ensure her safety.

[39] At approximately 10:56 pm Mr. Charleston’s bracelet was replaced and he was no longer detained for that purpose. He attempted to leave the officers’ presence and the following exchange took place, which is found on page 64 of the transcript:

OFFICER 1: Hey, Ricardo, before you leave, man. CHARLESTON: What? OFFICER 1: That’s a tight alleyway, yo. CHARLESTON: Yeah, bye, man. OFFICER 1: Yo. CHARLESTON: Huh? OFFICER 1: I have to talk to your partner, man. I gotta let you know right now I gotta talk to your partner, man. CHARLESTON: Who’s my partner? OFFICER 1: The one that’s in the bedroom over there. CHARLESTON: She’s not in the bedroom, man. OFFICER 1: Yeah, we saw her, man. You lied to us about that. We have to talk to her about anything, just tell her to come out and talk to us. CHARLESTON: Who are you talking about? OFFICER 1: The girl that went into your bedroom over there. CHARLESTON: There was nobody going in my bedroom, man. OFFICER 1: The one with the red dress.

[40] The officers were not satisfied with his responses and were unwilling to depart until they located the woman in question. They believed Mr. Charleston lied to them and that she was in his bedroom. While they testified that Mr. Charleston was not detained at this point as a suspect for a possible domestic assault, I do not accept their testimony. Mr. Charleston would not have been permitted to simply walk away from them. Officer Williams testified that Mr. Charleston was allowed back into his residence but he agreed Mr. Charleston would not have been allowed to walk down the street or board a TTC bus. The officers were genuinely, and legitimately, concerned for this woman and were lawfully entitled to take reasonable investigative steps to ensure her safety. Yet to state that Mr. Charleston was not detained is simply not credible. Furthermore, even if the officers sincerely believed that he was not detained, a reasonable person in Mr. Charleston’s position would have felt compelled to remain with the officers until their investigation was completed.

[41] I find that the detention was justified. The officers had reliable information that a woman at this address was being abused and that it was likely a case of domestic violence. Mr. Charleston was evasive about whether he was involved with this woman. The officers saw her enter a bedroom on the same floor where the caller explained she heard the sounds of violence. This was a sufficient basis in the context of responding to a 911 call to temporarily detain Mr. Charleston to ensure the woman’s safety.

[42] However, the officers again failed to provide Mr. Charleston with his right to counsel or to inform him of the reason for his detention in unambiguous language. At most, he knew there was an investigation involving a possible female victim of an assault, but not that he was specifically being viewed as a suspect. There were no urgent circumstances that prevented the officers from explaining to Mr. Charleston his status in their investigation. I find the informational component of his section 10(b) Charter right was violated as was his right to be informed of the reason for his detention under section 10(a): see R. v. Willier, 2010 SCC 37, at paras. 29-33; and R. v. Roberts, 2018 ONCA 411, at para. 78.

[43] At the same time, I do not find any fault with the officers choosing to prioritize locating the woman who may have been a victim of domestic violence over implementing Mr. Charleston’s right to counsel immediately. While the officers were under a constitutional obligation to inquire if Mr. Charleston wished to speak to a lawyer and facilitate that access at the first reasonable opportunity, the Crown has satisfied me they were justified in holding off implementing contact with counsel until they located the potential victim and confirmed she was safe: see R v. Taylor, 2014 SCC 50, at para. 24.

[44] By 11:09 pm the officers located Ms. Draper. She was injured, but she refused medical attention and was not in any imminent peril. Based on their observations of her, and the information provided to them from other sources, they formed reasonable and probable grounds to arrest Mr. Charleston. However, they did not arrest him when they spoke to him again at 11:13 pm. Instead, they asked him more questions related to their investigation. He stated, “I’m not answering any questions.” Undeterred, they asked him more questions regardless. They did not provide him with a caution, inform him that he would be arrested, or provide him with his right to counsel.

[45] A few minutes later, after he made more utterances, they arrested him formally for domestic assault and provided him with his right to counsel. He immediately indicated he wished to speak to Alan Lobel. Unfortunately, Mr. Charleston was left alone in a police car for over ten minutes when there were more than enough officers present for one of them to have been able to facilitate his access to counsel.

[46] These were severe violations of Mr. Charleston’s rights under sections 10(a) and (b) of the Charter. As soon as they located Ms. Draper and confirmed she was safe, they were constitutionally obligated to provide Mr. Charleston with his rights to counsel regarding the assault investigation and to facilitate those rights had he wished to exercise them. After agreeing they would arrest him, the officers’ subsequent decision not to inform him of his rights again and instead to continue asking questions that they knew had the potential to incriminate him was absolutely inexcusable. This conduct cuts to the very core of what section 10(b) is meant to protect.

(ii) Charter Section 8

[47] Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. The officers’ entry into Mr. Charleston’s residential unit was done without a warrant. The onus to justify a warrantless search falls upon the Crown: see R. v. Shepherd, 2009 SCC 35, at para. 16. Ms. Jackson submits that the common law doctrine of exigent circumstances justified the officers’ decision to compel Mr. Charleston to grant them entry into his room. [9]

[48] In R. v. Godoy, [1999] 1 S.C.R. 311 at paras. 16-22, the Supreme Court held that police officers had the authority to forcibly enter a dwelling house without a warrant to ensure the safety of a 911 caller. In that case, the police were responding to “unknown trouble” as the call was dropped before the caller could speak. The Supreme Court found that police officers have a general duty to protect the lives and safety of the public and held as follows, at para. 23:

A threat to life and limb more directly engages the values of dignity, integrity and autonomy underlying the right to privacy than does the interest in being free from the minimal state intrusion of police entering an apartment to investigate a potential emergency.

[49] In R. v. Stairs, 2022 SCC 11, the Supreme Court examined this principle in the context of domestic violence allegations. The police were responding to a 911 caller who reported seeing a man repeatedly hitting a woman in a car. Officers located the car in the driveway of a house. After no one responded to their knocking, the officers entered. A woman with fresh injuries to her face came up from the basement.

[50] The Supreme Court held that domestic violence calls can be “dangerous and even life-threatening for responding officers and persons at the scene.” Police officers are often placed in the difficult position of responding to these calls with limited information, a problem that is “further exacerbated when victims at the scene of the arrest are uncooperative”: see paras. 93-94.

[51] Had PCs Singh and Williams entered into all the residential units at 50 River Street shortly after they initially arrived to ensure that all female occupants of the building were safe, their actions would have been entirely justified under the common law exigent circumstances doctrine. Yet I have serious reservations that when the officers finally entered into Mr. Charleston’s unit their actions still fell within the ambit of that doctrine.

[52] Exigent circumstances may justify a warrantless search when there is an imminent threat to the police or public safety, or the imminent destruction of evidence: see R. v. Campbell, 2022 ONCA 666, at para. 80. PCs Singh and Williams had been on the premises of 50 River Street for well over two hours before they finally compelled Mr. Charleston to grant them entry to his bedroom. They knew he was a potential suspect in a domestic violence investigation yet allowed him out of their sight several times. Even after told him they thought he lied to them about the woman in his bedroom, they allowed him to return inside the residence to locate this potential victim on his own. They already concluded she may have been the victim they were searching for and he was likely the man who committed the assault. Not only was this a shocking display of professional negligence given the unknown status of the woman’s health and safety at the time, but it also seriously undermined any claim that the officers believed they were truly facing exigent circumstances. They apparently felt it was safe to allow their primary suspect to be alone with his victim.

[53] Indeed, the officers failed to prioritize their investigation into a potential domestic abuse victim almost as soon as they saw Mr. Charleston upon their arrival at 50 River Street. They spent over an hour addressing his ankle bracelet rather than searching the entire home to locate the female person who required assistance. While they did speak to some of the other residents, they knew there were portions of the residence they had not yet inspected when they chose instead to assist Mr. Charleston.

[54] In R. v. Jones, 2013 BCCA 345, the British Columbia Court of Appeal held that whether or not an unauthorized search is justifiable in the exercise of the duty to protect the public is generally fact-driven and depends on the circumstances of the individual case. The standard is objective, and the evidence must reveal a reasonable basis for a police officer’s subjective belief that public safety concerns necessitated a search: see para. 27.

[55] In R. v. Wilhelm, 2014 ONSC 1637, Justice Hill, sitting as a Summary Conviction Appeal Court, held that officers must consider “the availability of reasonable alternatives as an aspect of the reasonable necessity analysis in the context of the constitutionality, and in turn the lawfulness, of exceptional police conduct to exercise warrantless powers respecting real and personal property”: see para. 145.

[56] In R. v. Fava, 2020 ONSC 5520, Justice Conlan held that even in the context of a domestic violence investigation, officers should turn their minds to whether or not they could speak to a potential victim through an open door or ask her to step outside to ensure her safety before entering into a person’s home without a warrant: see para. 35.

[57] Nothing in his judgment should be meant to call into question the split-second decisions police officers often have to make in very tumultuous situations involving domestic violence calls. As I previously stated, the officers would have been entirely justified to search the entirety of 50 River Street when they first arrived if they genuinely believed that was the only means by which to ensure the safety of any victim. The Supreme Court’s decision in Stairs could not be any more explicit about the potentially devastating consequences that can result from a failure to properly investigate these 911 calls.

[58] But in this case, by the time the officers chose to finally locate Ms. Draper, they should have considered reasonable alternatives. They could have spent more time calling out to Ms. Draper to have her attend at the door to speak to check on her condition. They had already viewed her through a window and in the backyard. They had Mr. Charleston in their custody. She was no longer in any imminent peril.

[59] I find the officers’ warrantless entry into Mr. Charleston’s unit was not justified under the exigent circumstances doctrine and thus constituted a breach of his rights under section 8 of the Charter.

(iii) Charter Section 24(2)

[60] Section 24(2) of the Charter provides that, where evidence was obtained in a manner that infringed a Charter right or freedom, that evidence shall be excluded if it is established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute.

[61] In Grant, the Supreme Court of Canada identified three distinct lines of inquiry that must govern a court’s decision into whether the admission of evidence obtained by a violation of an accused person’s Charter rights would bring the administration of justice into disrepute. The Court must consider:

• The seriousness of the state’s Charter-infringing conduct;
• The impact of the breach on the Charter-protected interests of the accused; and
• Society’s interest in the adjudication of the case on its merits.

Seriousness of the Charter-infringing conduct

[62] The actions of the police are the focus of this part of the test, and the Charter infringing state conduct must be situated on a “scale of culpability”: see R. v. Paterson, 2017 SCC 15 at para. 43. In R. v. McColman, 2023 SCC 8, the Supreme Court held that “profoundly intrusive” breaches fall at the far end of this scale.

[63] Mr. Charleston was not provided with this right to counsel from the moment he was detained by PCs Singh and Williams at 10:38 pm until after his arrest for assault at 11:31 pm. During this period he was questioned repeatedly by the officers and provided various responses that the Crown seeks to introduce at his trial to prove his guilt. He was also not clearly informed of the reason for his detention after the ankle bracelet issue was resolved.

[64] I find the conduct of the police, in this case, showed a careless and ultimately indefensible disregard for his right to counsel. While the officers were very new and may have simply made a series of “rookie mistakes”, that does not render the failure to provide Mr. Charleston with his right to counsel less serious. In particular, after they decided to arrest him, the officers asked Mr. Charleston several questions before providing him with his right to counsel. Even in light of their inexperience, this was a terrible violation of Mr. Charleston’s rights and resulted in him making potentially incriminating statements.

[65] Regarding the section 8 violation, an unreasonable search that intrudes upon an area in which an individual reasonably enjoys a high expectation of privacy is more serious than one that does not: see Grant, at para. 78. It is beyond dispute that the warrantless search of someone’s home is a serious violation of one’s privacy rights. However, I accept that the officers were acting in good faith when they entered Mr. Charleston’s unit. They believed they needed to locate a possible victim of domestic violence and their subjective reliance on exigent circumstances was understandable. They did not unnecessarily search his bedroom, but rather only made observations of Ms. Draper.

[66] Nevertheless, it is artificial to view the section 8 and 10(b) violations that occurred as entirely separate events. I agree with Mr. Gonzalez that if Mr. Charleston had been informed of his right to counsel earlier in the evening, it likely would have affected how, or even if, this search of his residence occurred. For example, he may have refused to cooperate with the officers and/or exercised his right to silence. The events formed a continuum of Charter infringing state conduct.

The impact of the breach on the Charter-protected interests of the accused

[67] In R. v. Davis, 2023 ONCA 227, the Ontario Court of Appeal stressed the importance of a detained person being provided with the informational component of the right to counsel immediately. The Court held that a detained person must know they can contact counsel so they “are not entirely at the mercy of the police” and that they are entitled to a “lifeline to the outside world”: see para. 8.

[68] Mr. Charleston expressed concerns to the officers as soon as he interacted with them that they might seek to arrest him or place him in jail. They knew or should have known, how vital it was that he be made aware of his rights once he was under a criminal investigation. I find the impact on his 10(b) rights extremely serious. Repeatedly questioning Mr. Charleston without affording him his right to counsel left him in a terrible power imbalance compared to the officers. He was furthermore never cautioned that he did not have to speak to them.

[69] I also find the impact on his section 8 rights was serious, although I appreciate that the police officers would inevitably have located Ms. Draper even if they had not entered without a warrant, somewhat attenuating the impact of this breach: see R. v. Tsekouras, 2017 ONCA 290, at para. 112.

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

[70] This portion of the test asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry requires courts to consider both the negative impact of admission of the evidence on the repute of the administration of justice and the impact of failing to admit the evidence: see McColman at para. 69.

[71] Intimate partner violence is a criminal problem of the highest magnitude. Society has a strong interest in ensuring these cases are decided on their merits.

Balancing the factors

[72] Mr. Charleston’s statements are not a form of reliable evidence that is critical to the Crown’s case. They were uttered while he was unaware of his rights and detained by the officers. The violations of his right to counsel were not merely inadvertent – they were repeated and inexcusable.

[73] The cumulative weight of the first two lines of inquiry must be balanced against the third line of inquiry: McColman at para. 74. Both the first and second lines of inquiry pull strongly against the admission of any statements and far outweigh any weight associated to the third line of inquiry. All Mr. Charleston’s statements made after he was detained are excluded from evidence at his trial. To admit them would cause lasting damage to the repute of the administration of justice.

[74] The officers’ observations of Ms. Draper in Mr. Charleston’s bedroom are also excluded. They conducted a warrantless search of his bedroom when other means were available to them of locating Ms. Draper. This breach of his section 8 privacy rights cannot be divorced from the earlier and ongoing violations of his section 10(b) right to counsel. Mr. Charleston was effectively compelled to offer assistance to the police in searching his residence without knowing he had the right to speak to counsel. I accept that the officer’s observations of Ms. Draper’s injuries constitute reliable evidence, but the third line of inquiry cannot result in a “rubber-stamp” where nearly all evidence is deemed sufficiently reliable to warrant inclusion: see R. v. Harrison, 2009 SCC 34, at paras. 33-34.

[75] To provide clarification for counsel, if Ms. Draper is called as a witness by the Crown at the upcoming trial, she may still personally testify as to the extent and causes of her injuries. That form of evidence has no connection to the violations of Mr. Charleston’s Charter rights. To prevent the complainant herself from testifying about her injuries would over-extend the protections of section 24(2) of the Charter and produce an outcome that was entirely contrary to the pressing need for courts to fairly evaluate allegations of intimate partner violence. Furthermore, while the observations of the officers were obtained in a manner that violated Mr. Charleston’s Charter rights, Ms. Draper’s ability to testify about her own injuries exists independently of any Charter violations: see R. v. Martin, 2023 ONSC 2909, at paras. 35-37.

(iv) Voluntariness

[76] Due to my rulings on the Charter, the only statements that require a voluntariness analysis are those made before Mr. Charleston’s detention. A statement made by an accused to a person in authority is not admissible unless the Crown proves beyond a reasonable doubt it was given voluntarily: R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38. The court must employ a contextual analysis and weigh the relevant factors based on the circumstances of the particular case. Several factors are to be considered including the making of threats or promises, oppression, the operating mind doctrine, and police trickery: see R. v. Tessier, 2022 SCC 35 at para. 68.

[77] For the portions of the officers’ interactions with Mr. Charleston that are audio and video recorded, there is a comprehensive record available for the court. At no point do the officers threaten him or offer him an inducement. Mr. Charleston speaks clearly and understands what the officers are communicating to him. The officers do not attempt to trick him into speaking to them.

[78] For reasons that were never made clear during the voir dire, PC Singh turned the audio off on his body-worn camera several times while he was interacting with Mr. Charleston. On the video footage, Mr. Charleston is speaking to the officers, sometimes in response to questioning. Neither PC Singh nor PC Williams could recall what was being said at these times. They made no notes that could assist them while testifying either.

[79] The Ontario Court of Appeal has repeatedly held that fully recording any statements given by a suspect is a best practice. When the police fail to create an independent record of a statement, that may raise voluntariness concerns. The circumstances of the case must be examined: see R. v. Swanek, at para. 9. In R. v. Picard, 2016 ONSC 6424, Justice Parfett of the Superior Court of Justice lists the factors a court should consider when determining whether the accuracy of the record is sufficient to determine voluntariness. These include material gaps in the evidence about what was said, where the police had available technology to record the missing interactions, and whether the police cannot recall all questions asked and answered: see para. 32.

[80] PC Singh chose not to record many of his discussions with Mr. Charleston. I have no evidence whatsoever of what occurred when the audio recording was muted. While not every interaction between officers and a suspect must be recorded, the Crown bears the onus of establishing a sufficient record of a suspect’s interactions with police officers: see R. v. Kromah, 2022 ONSC 4815, at paras. 39-41; R. v. Moore-McFarlane, at para. 65.

[81] Without a comprehensive record, I cannot determine what was said to Mr. Charleston when the audio on PC Singh’s body-worn camera was muted. I do not know if anything was said that could have influenced his decision to speak to the officers. This is not a minor problem in this case. There were significant periods that passed without any record of what was said between the officers and Mr. Charleston. It only takes a moment for something consequential to have occurred to possibly affect the voluntariness of a statement.

[82] The introduction of these statements into evidence would also raise a significant problem regarding Mr. Charleston’s right to a fair trial. If he were to testify in his defence, it might be impossible for him to adequately respond to questions about why he made certain statements to the police without a proper record to place those statements in an appropriate context: see R. v. C.M., 2022 ONCJ 372, at para. 64.

[83] I find that the Crown has not proven that Mr. Charleston’s statements were voluntarily provided after the audio recording was intermittently muted by PC Singh beginning at 9:07 pm.

[84] The Crown has satisfied me that the audio-video recording of Mr. Charleston’s statements to the officers before that time were provided voluntarily and before he was detained. They are admissible at his trial.

Concluding Remarks

[85] This was a complicated blended application requiring hours of police testimony, and the presentation of video evidence. I commend both lawyers for a well-argued and thoughtful presentation of their respective positions. I also greatly appreciate Mr. Gonzalez’s focused cross-examination of the officers and narrowly tailored submissions on the areas of the law that were most applicable to the issues before me.

[86] Ms. Jackson made appropriate, helpful concessions and acknowledged some of the more unfortunate errors in the conduct of the officers. Her arguments overall were made in a manner that was commensurate with her role as a Minister of Justice.

[87] This style of advocacy, for both Crown and defence counsel, will enable courts to adjudicate these applications in a timely and efficient manner while ensuring that they can be rightly decided on their merits.

Released May 19, 2023 Signed: Justice Brock Jones

[1] Transcription of PC Singh’s Body Worn Camera Footage at page 67. [2] Transcription of PC Singh’s Body Worn Camera Footage at page 68. [3] Transcription of PC Singh’s Body-Worn Camera Footage, at page 2. [4] Transcription of PC Singh’s Body-Worn Camera Footage, at page 10. [5] Transcription of PC Singh’s Body-Worn Camera Footage, at page 14. [6] Transcription of PC Singh’s Body-Worn Camera Footage, at page 29. [7] Transcription of PC Singh’s Body-Worn Camera Footage, at page 17. [8] Transcription of PC Singh’s Body-Worn Camera Footage, at page 19. [9] Crown and defence counsel both made reference to Criminal Code section 529.3 as well on the topic of exigent circumstances. I have confined my analysis to the common law doctrine instead, as the officers did not enter into the residential unit “for the purpose of arresting or apprehending a person” as that section requires. Regardless, the substance of the issues underlying the Charter claim in this case is unaffected.