Court File and Parties

Date: November 27, 2023 Ontario Court of Justice Old City Hall - Toronto

Between: HIS MAJESTY THE KING — AND — BRITTANY SHEIN

For the Crown: A. Nash For the Defendant: W. Dutcher-Walls

Heard: November 14-17, 2023

Reasons for Judgment

RUSSELL SILVERSTEIN, J.:

Introduction

[1] This case is yet another example of the fraught intersection of mental illness and the criminal law.

[2] Ms. Shein is charged with the following criminal offences (as set out in the information), all alleged to have been committed in the City of Toronto on July 9, 2023.

(1) “carrying a weapon, namely large piece of asphalt (sic), for a purpose dangerous to the public peace”, contrary to s. 88(1) of the Criminal Code;

(2) Failing to comply with the terms of a release order, “namely Do not attend at a playground, school ground or daycare where persons under the age of 16 years are present or can reasonable (sic) expected to be present” contrary to s. 145(5)(a) of the Criminal Code;

(3) Failing to comply with the terms of a release order, namely “Do not possess any weapon as defined by the criminal code” contrary to s. 145(5)(a) of the Criminal Code;

(4) Failing to comply with the terms of a release order, “namely Do not approach individuals known to you to be under the age of 16 for the purpose of communication” contrary to s. 145(5)(a) of the Criminal Code.

[3] The charges arise out of an incident at Grange Park, which is bordered by the Art Gallery of Ontario to the north, Stephanie Street to the south, McCall Street and the Ontario College of Art and Design to the east and Beverly Street to the west. It is a mixed-use park, with a large central grassy lawn, walking/bike paths, a splash pad, and some child playground areas.

[4] On July 9, 2023, Ms. Shein, who, it is admitted was bound by certain bail conditions at the time, entered the park carrying a piece of asphalt. She went directly to the grassy area of the park and had a verbal confrontation with Colin Smith, the father of a family who were sitting under a tree having a picnic. She held the piece of asphalt above her head while behaving and speaking in a very bizarre fashion. Several people in the park, including Mr. Smith, called the police and several officers converged quickly, responding to a radio call regarding Ms. Shein’s “threatening” behaviour. Ms. Shein was arrested and handcuffed then escorted out of the park to a police car on Stephanie Street. Approximately seven minutes after her arrest, she was told why she was arrested and informed of her rights to counsel. She made clear that she wanted to speak to her lawyer. The police decided that a private call to her lawyer would have to wait until she was back at 52 Division. The police did immediately afford her the opportunity to speak to her lawyer, although not in private. She was then driven to 52 Division where, more than an hour later she spoke to her lawyer in private after he called the station. The entire police interaction with Ms. Shein was captured on police body-worn video cameras.

[5] While no expert evidence was offered by either party, it is apparent that Ms. Shein was suffering from a significant mental disturbance throughout the entire incident.

[6] Mr. Dutcher-Walls, on behalf of Ms. Shein, alleges several s. 10 Charter violations. He argues that:

(1) The arresting officers failed to inform Ms. Shein of the reason for her arrest in a timely fashion – a breach of s. 10(a).

(2) The arresting officers failed to inform Ms. Shein of her right to counsel in a timely fashion – a breach of the informational component of s. 10(b).

(3) The arresting officers failed to afford Ms. Shein the opportunity to speak privately to her lawyer in a timely fashion – a breach of the implementation component of s. 10(b).

[7] Mr. Dutcher-Walls also contests the voluntariness of Ms. Shein’s utterances to police.

[8] Mr. Dutcher-Walls seeks the exclusion of all post-arrest police observations of Ms. Shein, including all her utterances. Ms. Nash argues that Ms. Shein’s Charter rights were not violated, but if they were, the violations do not support the exclusion of the evidence. She further argues that the voluntariness of Ms. Shein’s utterances to police has been proven beyond a reasonable doubt.

[9] Mr. Dutcher-Walls further argues that with or without the exclusion of the evidence, the Crown has failed to prove the guilt of Ms. Shein beyond a reasonable doubt on any of the charges.

[10] The trial before me was conducted in a blended fashion. Evidence on the Charter application and evidence on the trial itself were heard together.

[11] Ms. Nash called several civilian and police witnesses and filed, among other exhibits, video footage of the incident with Mr. Smith, and of Ms. Shein’s arrest, and her behaviour and utterances to police after her arrest.

[12] Several agreed statements of fact were also filed.

[13] Ms. Shein did not testify and called no evidence.

[14] On November 18, 2023, I told counsel for both parties by email that I am finding Ms. Shein not guilty on all counts.

[15] These are my reasons for doing so.

The Evidence

Introduction

[16] I do not intend to summarize all the evidence heard in this trial. Rather, I shall set out my material findings of fact with reference to the relevant testimony where required.

Critical Findings of Fact

[17] From the moment Ms. Shein entered the park to the moment she entered the police station she was suffering from some sort of mental illness. Even in the absence of expert testimony on the issue, her interactions with Mr. Smith and with the police were so bizarre that this lay opinion is inescapable. Likely as a result of whatever mental illness afflicted her, Ms. Shein’s speech and thoughts were highly disorganized. She spoke almost incessantly and most of what she said made next to no sense.

[18] Mr. Smith also formed the opinion that Ms. Shein was mentally unwell that day. Both counsel would appear to agree.

[19] When P.C. Moore arrested Ms. Shein and handcuffed her, he did not tell her why she was being arrested. Even when she asked why she was being arrested he did not immediately tell her. It was not until seven minutes later after he and several other officers had escorted her to a scout car that she was told that she was under arrest for threatening. One minute later P.C. Moore informed her of her rights to counsel and cautioned her.

[20] Even before she was told why she was under arrest she told all the officers that she wanted to speak to her lawyer. She had also told them her lawyer’s name.

[21] Approximately three minutes later, P.C. Moore, having decided that Ms. Shein would not be given a private call until she was booked at the station nonetheless made a call to Samara Secter, Ms. Shein’s lawyer. Ms. Shein had supplied her name and number to P.C. Moore. Ms. Secter and Ms. Shein spoke to each other over speakerphone before Ms. Shein was put into the scout car and then again shortly thereafter. Ms. Secter told Ms. Shein several times not to speak to the police and that she would speak to her in private later. Ms. Shein cried several times during her conversation with Ms. Secter.

[22] Ms. Shein was driven to 52 Division where she waited 35 minutes, handcuffed in the back of the scout car before being paraded. She was taken to a holding cell at 3:07 pm. Mr. Dutcher-Walls called the station at 3:24 pm and was connected privately to Ms. Shein. This occurred again at 5:29 pm. There is no evidence of the police taking any steps to put Ms. Shein in contact with her lawyer prior to her lawyer’s call to the station at 3:24 pm.

Were Ms. Shein’s Utterances Voluntary?

[23] There is no suggestion that police threatened Ms. Shein nor made her any promises. If there is any doubt as to voluntariness, that doubt would relate to whether Ms. Shein had an operating mind when she made her many utterances while in police custody.

[24] The onus of proving voluntariness is on the Crown. It must be proven beyond a reasonable doubt. Failure by the Crown to prove voluntariness results in the exclusion of the accused’s utterances to police.

[25] In R. v. Whittle, [1994] 2 S.C.R. 914, at paras 45 and 49 Sopinka J. says this about the role of an “operating mind” in the voluntariness enquiry:

The operating mind test, therefore, requires that the accused possess a limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused. Indeed it would be hard to imagine what an operating mind is if it does not possess this limited amount of cognitive ability. In determining the requisite capacity to make an active choice, the relevant test is: Did the accused possess an operating mind? It goes no further and no inquiry is necessary as to whether the accused is capable of making a good or wise choice or one that is in his or her interest…

The operating mind test, which is an aspect of the confessions rule, includes a limited mental component which requires that the accused have sufficient cognitive capacity to understand what he or she is saying and what is said. This includes the ability to understand a caution that the evidence can be used against the accused.

[26] Just before Ms. Shein was read her rights to counsel and the standard police caution, she was speaking very rapidly to the police. What she was saying was sometimes partly responsive to questions asked of her, but most of what she said made no sense at all. She seemed to understand some of what was said to her, but not all. When asked if she understood her rights to counsel, she said that she “knew the ones that she read everywhere else on the planet in existence.” In further response to her rights to counsel she gave the police three mostly accurate names of lawyers in Mr. Addarios’s office but also said something about his office belonging to a judge of the “Superior Court of Canada”. Her response to being told that what she said would be taken down and could be given in evidence was “I would hope so”.

[27] In Whittle, evidence from two psychiatrists was heard at trial on the issue of Whittle’s state of mind when he confessed to police. The Supreme Court ultimately decided that the trial judge had misapplied the law to the psychiatric evidence that he had accepted. The Supreme Court held that that evidence supported a finding of an operating mind on the part of Mr. Whittle.

[28] There is no psychiatric evidence in the case at bar. I must decide the operating mind issue based on Ms. Shein’s bizarre behaviour, her disjointed monologue, her often flighty responses to questions and my lay impressions of Ms. Shein’s capacity to process information. I struggle to find the right term to describe my impression of her state of mind but whatever she was suffering from, I am not convinced beyond a reasonable doubt that she was capable of understanding that what she said to police could be used against her. She probably was, but I am not sure of it.

[29] The Crown has thus failed to prove voluntariness beyond a reasonable doubt and as a result, Ms. Shein’s utterances are not admissible.

The Alleged Section 10(b) Violations

Introduction

[30] I reiterate that Mr. Dutcher-Walls, on behalf of Ms. Shein, alleges several s. 10 Charter violations. He argues that:

(1) The arresting officers failed to inform Ms. Shein of the reason for her arrest in a timely fashion – a breach of s. 10(a).

(2) The arresting officers failed to inform Ms. Shein of her right to counsel in a timely fashion – a breach of the informational component of s. 10(b).

(3) The arresting officers failed to afford Ms. Shein the opportunity to speak privately to her lawyer in a timely fashion – a breach of the implementation component of s. 10(b).

The Section 10 Immediacy Issue

[31] Section 10(a) and (b) of the Charter stipulate that:

Everyone has the right on arrest or detention

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

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

[32] It is now well settled law that the police must inform a detainee of his or her rights to counsel immediately upon arrest unless there are exigent circumstances or to do so poses undue risk to the safety of officers or the public. R. v. Debot, [1989] 2 S.C.R. 1140 at paras 3 and 42; R. v. Suberu, 2007 ONCA 60 at paras 47-48; R. v. Pino, 2016 ONCA 389 R. v. Pileggi, 2021 ONCA 4, at paras. 57-62.

[33] No such circumstances existed in this case. There was nothing standing in the way of P.C. Moore reading Ms. Shein her section 10(a) information and 10(b) rights immediately after arresting her. No civilians sought to intervene in the arrest. Ms. Shein was not resisting. Her behaviour was challenging, and the police justifiably felt that the sooner she was moved out of the public arena the better. But this latter observation goes to the seriousness of the breach. Reading Ms. Shein her rights was eminently feasible. The alleged 10(a) and 10(b) breaches have been made out.

Section 10(b) – The Implementation Component

[34] The duty to facilitate access to a lawyer arises immediately upon the detainee’s request to speak to counsel. Where the police delay access to counsel the Crown bears the burden of demonstrating that the delay was reasonable in the circumstances. R. v. Taylor, 2014 SCC 50, at para. 24; R. v. Wu, 2017 ONSC 1003; R. v. Wong, 2022 ONCJ 566

[35] In R. v. Rover, 2018 ONCA 745 at paras. 26-28 Doherty J.A. summarizes the law on this issue as follows:

The s. 10(b) jurisprudence has, however, always recognized that specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relate to police safety, public safety, or the preservation of evidence. For example, in R. v. Strachan, [1988] 2 S.C.R. 980, the court accepted that the police could delay providing access to counsel in order to properly gain control of the scene of the arrest and search for restricted weapons known to be at the scene. Subsequent cases have accepted that specific circumstances relating to the execution of search warrants can also justify delaying access to counsel until the warrant is executed: see e.g. R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68, at paras. 71-75.

These cases have, however, emphasized that concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay access only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel. Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel: see e.g. R. v. Patterson, 2006 BCCA 24, 206 C.C.C. (3d) 70, at para. 41; R. v. Soto, 2010 ONSC 1734, at paras. 67-71; Learning, at para. 75; R. v. Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78.

Wu, at para. 78, provides a helpful summary of the law. That summary includes the following:

The assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination. The case law on this issue reveals some general guiding principles that provide a framework for this assessment:

a. The suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerous circumstances arise or where there are concerns for officer or public safety.

e. Police officers considering whether circumstances justify suspending the right to counsel must conduct a case by case assessment aided by their training and experience. A policy or practice routinely or categorically permitting the suspension of the right to counsel in certain types of investigations is inappropriate.

See too R. v. La, 2018 ONCA 830; R. v. Mitchell, 2018 ONCJ 121; R. v. Campoli, [2020] O.J. No. 167.

[36] Neither P.C. Moore nor P.C. Dunstan, the transporting officer, offered any evidence that delaying Ms. Shein’s phone call to counsel until arrival at 52 Division was a considered one. Rather, as is evident from the discussion amongst them and other officers on Stephanie Street they considered this to be standard police practice. Moreover, I find that the circumstances cried out for allowing Ms. Shein to contact counsel privately on a police “connected phone” from the back of the police car, either at the scene on Stephanie Street or during the long wait in the sally port at 52 Division. As concerns privacy, the police could have simply turned off the police car’s recording equipment and put a connected phone on the seat beside Ms. Shein while the phone was in speaker-phone mode. See R. v. Ellacott, [2009] O.J. No. 5869; R. v. Tremblay, 2021 QCCA 24.

Should the Evidence Be Excluded?

[37] Section 24(2) of the Charter reads as follows:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[38] In my view, Ms. Shein’s utterances were obtained in a manner that infringed her s. 10(a) and 10(b) Charter rights. These utterances preceded her private access to counsel and were temporally very close to the informational breaches. The test in R. v. Tim, 2022 SCC 12, [2022] S.C.J. No. 12 is met. See too R. v. Davis, 2023 ONCA 227.

[39] Whether the admission of the evidence would bring the administration of justice into disrepute is governed by the test first articulated in the Supreme Court’s decision in R. v. Grant, 2009 SCC 32 at para. 71:

[W]hether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

See too R. v. Tim, 2022 SCC 12, [2022] S.C.J. No. 12

The Seriousness of the Breaches

[40] While the breaches in this case are numerous, in my view they were not egregiously serious. While the police did fail to provide timely information and timely private access to counsel when I find they could have and should have done so, they nonetheless treated Ms. Shein politely and with respect. They were relatively gentle with her. They also provided Ms. Shein with a public phone call to her counsel. There was no specific intent on the part of the police to deprive her of her Charter rights.

[41] I find that the degree of seriousness of the s. 10 breaches mildly supports the exclusion of the evidence.

The Impact of the Breaches on the Charter Protected Interests of the Accused

[42] The s. 10(a) breach created a period of seven minutes where Ms. Shein was detained and handcuffed while surrounded by many uniformed police without explanation. This must have caused her significant anguish. The fact that she frantically asked for a reason more than once supports that finding.

[43] I do not accept Ms. Nash’s argument that Ms. Shein must have known why she was arrested, especially given her disturbed state of mind that afternoon.

[44] In my view, the failure to advise her in a timely way of her right to consult counsel did not have a significant impact, when compared to the s. 10(a) breach and the s. 10(b) implementation breach.

[45] Ms. Shein expressed more than once her frustration at the prospect of not having a private discussion with Ms. Secter. She cried in anguish several times during the so called “courtesy call”.

[46] Ms. Shein was told several times by Ms. Secter, albeit not in private, that she should say nothing. Yet she disregarded that advice. This raises the likelihood that she would not have behaved differently if she had been afforded private contact with Ms. Secter.

[47] That said, Ms. Secter may have found a more convincing tack given the opportunity for privacy.

[48] Even though there is a strong possibility that the utterances would have occurred even if there had been a private call, I find that the emotional impact of the implementation breach was significant.

[49] The second Grant factor mildly favours exclusion.

Society’s Interest in the Adjudication of the Case on its Merits

[50] The Supreme Court in Harrison, supra, at paras. 33 and 34, deals with this factor as follows:

At this stage, the court considers factors such as the reliability of the evidence and its importance to the Crown’s case.

The evidence of the drugs obtained as a consequence of the Charter breaches was highly reliable. It was critical evidence, virtually conclusive of guilt on the offence charged. The evidence cannot be said to operate unfairly having regard to the truth-seeking function of the trial. While the charged offence is serious, this factor must not take on disproportionate significance. As noted in Grant, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high. With that caveat in mind, the third line of inquiry under the s. 24(2) analysis favours the admission of the evidence as to do so would promote the public’s interest in having the case adjudicated on its merits.

[51] The offences charged are relatively minor, which in my view reduces the policy imperative that there be a trial on the merits.

[52] In any event, the impugned evidence is not a significant part of the Crown’s case. Moreover, the disjointed and rambling utterances are particularly unreliable. They are so wildly lacking in probative value, and so unreflective of Ms. Shein’s alleged knowledge or intention that they are of almost no value to the prosecution.

[53] I find that the third Grant factor favours exclusion of the evidence.

Balancing the Three Grant Factors

[54] The Supreme Court in Harrison, supra, at para. 36 explains the proper approach to balancing the three Grant factors:

The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth‑seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

[55] All three Grant factors support exclusion of the evidence.

[56] I find that in the circumstances of this case, admitting the evidence would bring the administration of justice into disrepute.

The Fail to Comply Charges

The Mens Rea Issue

[57] Martin J. in R. v. Zora, 2020 SCC 14 at para. 112 succinctly explains that:

An accused must know or be wilfully blind to their conditions in order to be convicted, although the accused does not need to know the legal consequences or the scope of the condition…

The accused must know the conditions of their release in order to possess the mens rea for the failure to comply offence.

[58] “Knowing” something is a state of mind. Even a normal human mind can know something one day and not know it one week later simply by forgetting that fact. Ms. Shein likely knew her conditions when she signed her bail order several weeks earlier. But Ms. Shein’s mental processes were so out of kilter on the day in question that I cannot be convinced beyond a reasonable doubt that she knew about her bail conditions that day. Her mind was not working properly when she entered the park, making it impossible to conclude that her mind was capable of knowing that fact.

The Actus Reus Issue

[59] Counsel made careful arguments as to whether the actus rei of the three fail to comply charges were proved. Because I have a reasonable doubt concerning Ms. Shein’s mens rea, it is unnecessary to deal with these arguments.

The Weapons Dangerous Charge

The Mens Rea Issue

[60] Possession of a weapon for a purpose dangerous to the public peace is a specific intent offence. As explained by Bastrache J. in R. v. Kerr, 2004 SCC 44 at para 23:

[T]he Crown must establish (i) that the accused possessed a weapon, and (ii) that the purpose of that possession was one dangerous to the public peace. The offence is qualified in the doctrine as a specific intent crime since "the prohibited conduct [must] be committed with an intent to achieve a particular result": see D. Stuart, Canadian Criminal Law: A Treatise (4th ed. 2001), at p. 236. In the present case, there is no issue as to possession; we are concerned squarely with the question of purpose.

[61] Mental illness falling short of rendering the accused not criminally responsible can, along with other evidence, raise a doubt as to intention in specific intent offences. R. v. Hilton, 34 C.C.C. (2d) 206 (Ont. C.A.); R. v. Damin, 2012 BCCA 504.

[62] Proof of some sort of purpose on the part of Ms. Shein must be accomplished before one can proceed to determine the details of that purpose. Proof of the details of that purpose must precede any determination of whether that purpose was dangerous to the public peace. If identifying her purpose is not possible, proof of dangerousness is also impossible. Purpose resides in the mind. If the mind of the accused is inscrutable, so is her purpose. R. v. Kerr, supra; Chandler v. Director of Public Prosecutions, [1962] 3 All E.R. 142.

[63] Much the same way as Ms. Shein’s mental illness leaves me in doubt as to what she knew as concerns the terms of her bail, I am left in doubt as to what purpose, if any, Ms. Shein had while possessing the piece of asphalt.

Conclusion

[64] All four charges are dismissed.

[65] Because of the unreliable nature of Ms. Shein’s utterances on the day in question, I would have arrived at the same conclusions even if I had admitted her utterances.

Released on November 27, 2023 Justice Russell Silverstein