ONTARIO COURT OF JUSTICE
DATE: 2025-02-27
Information No.: 23-2252
West Region
Parties
Between:
His Majesty the King
Shane Wright, for the Crown
Respondent
- and -
Dylan Smith
Aaron Prevost, for the Applicant
Applicant
Heard: February 6, 2025
RULING ON PRE-TRIAL APPLICATION
Justice of the Peace: T. Oudekerk
Endorsement
[1] The endorsement was provided in writing to the parties on February 24, 2025: “The application is granted and the January 7, 2023 statement is excluded by section 24(2) of the Canadian Charter of Rights and Freedoms [1].” The parties were informed at that time the reasons would follow in writing.
Reasons
I. Overview
[2] Dylan Smith is charged on information 23 P1092 with two offences under the [Highway Traffic Act][2] as follows:
On or about the 7th day of January in the year 2023 at the City of London in the County of Middlesex did commit the offence of drive a vehicle carelessly on Oxford Street East near Colborne Street by driving without due care and attention and thereby cause death to Kevin MOURANT, contrary to Section 130, Subsection (3) of the Highway Traffic Act.
On or about the 7th day of January in the year 2023 at the City of London in the County of Middlesex did commit the offence of drive a motor vehicle on Oxford Street East near Colborne Street without holding a valid licence issued to him, contrary to Section 32, subsection (1) of the Highway Traffic Act.
[3] Dylan Smith brought an application under sections 7 and 10 of the Charter for an order excluding the Applicant’s statement pursuant to section 24(2). A voir dire was held to determine the admissibility of the statement prior to the commencement of the trial.
[4] The application was heard by this Court on February 6, 2025. The materials filed by the Applicant include the Application Form 1, a factum, and copies of the authorities the Applicant is relying on for his legal arguments. The Respondent, Crown Attorney on behalf of His Majesty the King, filed a record consisting of the Response Form 2, a factum, and copies of the authorities the Respondent is relying on for their legal arguments. London Police Service Constable Keegan Dew testified at the hearing. No other oral evidence was presented to the court.
[5] The issue in the application is if Dylan Smith was denied his right to counsel pursuant to section 10 of the Charter.
II. Facts
[6] The facts are not in dispute regarding this application. On January 7, 2023 London Police Service Constable Keegan Dew received a message from dispatch to attend the scene of an accident. He arrived at the scene in a police cruiser with lights and sirens operating and he was in full police uniform. Constable Dew observed multiple individuals standing in close proximity to a person on the ground who appeared to have been struck by a motor vehicle. He made inquiries about who was driving the motor vehicle and identified Dylan Smith as the driver.
[7] Dylan Smith was visibly upset and Constable Dew took steps to get him away from the individual who was struck by the vehicle. Constable Dew’s oral evidence at the hearing was that he said something similar to “let’s go for a walk, let’s go over here”. Dylan Smith walked away and Constable Dew followed him. Dylan Smith was then approached by paramedics at which point Constable Dew moved about 10 feet away to give Dylan Smith privacy while he received medical attention from the paramedics.
When Dylan Smith was done with the paramedics, Constable Dew walked back towards him. They were standing on someone’s front lawn. It was January, dark outside and in close proximity to the individual who was struck by the vehicle. Constable Dew asked Dylan Smith to go have a seat in his cruiser, which was located approximately 50 feet away, just west of the intersection.
[8] Dylan Smith was not touched, handcuffed or otherwise physically restrained while they walked to the cruiser. Constable Dew opened the back door to the cruiser, Dylan Smith got in and Constable Dew closed the door. Constable Dew then sat in the front, driver’s seat of the cruiser. There was plexiglass dividing the backseat from the front seat and the rear doors and windows of the cruiser cannot be opened from the inside.
[9] Constable Dew cannot recall his conversation with Dylan Smith, but he does recall taking it slow with him and being calm and empathetic. His motivation for having them go to the cruiser was that it was a more appropriate place to be in the circumstances.
[10] Constable Dew also recalls telling Dylan Smith that he would be needing a statement from him. Before taking the statement he read a caution from his Duty Book. He cautioned Dylan Smith that he may be charged with the Criminal Code offence of Dangerous Driving, that he did not have to say anything and that anything Dylan Smith said may be given in evidence. Constable Dew did not inform Dylan Smith of his right to counsel prior to taking Dylan Smith’s statement.
[11] Dylan Smith provided a statement. The process of obtaining the statement took approximately 45 minutes. He was never informed he could ask to leave and he did not ask to leave the vehicle at any time.
[12] After Constable Dew collected the statement, he left Dylan Smith in the back of the cruiser for approximately 5 minutes while he spoke to his Staff Sergeant about the status of Dylan Smith’s cell phone. He was informed Dylan Smith could not get his cell phone returned to him. The motor vehicle was seized as part of the investigation. Constable Dew requested Dylan Smith’s keys, which were also seized as part of the investigation. Constable Dew then drove Dylan Smith home. Constable Dew contacted victim services for Dylan Smith upon his return home.
[13] Constable Dew did not charge Dylan Smith with any offences. Dylan Smith was charged 12 days later on January 19, 2023 with the 2 counts under the Highway Traffic Act as described above.
III. Analysis
[14] Section 10(b) of the Charter reads:
- Everyone has the right on arrest or detention
(b) to retain and instruct counsel without delay and to be informed of that right;
[15] The issue in this application is whether Dylan Smith’s statement was obtained in a manner that breached his rights under the Charter. The Supreme Court of Canada has addressed this issue in [R. v. Grant][3] and [R. v. Suberu][4]. The Supreme Court’s approach to the definition of “detention” is purposive. It is summarized in Suberu as follows:
In Grant, we adopted a purposive approach to the definition of "detention" and held that a "detention" for the purposes of the Charter refers to a suspension of an individual's liberty interest by virtue of a significant physical or psychological restraint at the hands of the state. The recognition that detention can manifest in both physical and psychological form is consistent with our acceptance that police actions short of holding an individual behind bars or in handcuffs can be coercive enough to engage the rights protected by ss. 9 and 10 of the Charter.
While a detention is clearly indicated by the existence of physical restraint or a legal obligation to comply with a police demand, a detention can also be grounded when police conduct would cause a reasonable person to conclude that he or she no longer had the freedom to choose whether or not to cooperate with the police. As discussed more fully in Grant, this is an objective determination, made in light of the circumstances of an encounter as a whole. [5]
[16] In the case before this court Constable Dew arrived at the scene of an accident and asked a group of bystanders who was driving the vehicle. The preliminary questioning at the scene by Constable Dew was a legitimate exercise of police powers. At this stage, a reasonable person would not have concluded they were being deprived of their right to choose how to act. It is clear there was no detention at the time Constable Dew obtained information that Mr. Smith was the driver. This is not at issue in this appeal and is consistent with the findings in [R. v. Grant][6] and a number of Ontario Court of Appeal decisions the Respondent submitted as authorities in their response to this application. [7]
[17] The issue in this application is whether Dylan Smith was detained when he gave his statement while he was seated in the police cruiser. Mr. Smith argues that the police breached his Charter rights by failing to advise him of his right to speak to a lawyer contrary to section 10. The Crown argues that Dylan Smith was not arrested or detained at the time he provided his statement and there was no breach because his Charter rights under section 10 were not triggered at that time.
[18] All parties agree that Mr. Smith was entitled to be advised of the right to counsel if he was detained when he gave his statement. They also agree that if the court decides he was detained, the statement should be excluded pursuant to section 24(2) of the Charter.
[19] A summary of the factors relevant to the issue of detention are set out in Grant and Suberu as follows:
Detention under ss.9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:
a. The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or singling out the individual for focused investigation.
b. The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
c. The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. [8]
[20] The Respondent submitted the Supreme Court of Canada case of [R. v. Therens][9]. That case addresses a temporary restraint that falls short of formal arrest in the context of s.234 and 236 of the Criminal Code of Canada for the purpose of carrying out procedures authorized by law. Although that case involves potential consequence of criminal charges for failing to comply with the demand made by the officer, Justice Le Dain (dissenting, but the majority agreed with him regarding his analysis on detention) goes further than the fact scenario before them to address the viewpoint of an average citizen in situations similar to the one before this court where there is no risk of prosecution for refusing to give a statement:
In my opinion, it is not realistic, as a general rule, to regard compliance with a demand or direction by a police officer as truly voluntary, in the sense that the citizen feels that he or she has the choice to obey or not, even where there is in fact a lack of statutory or common law authority for the demand or direction and therefore an absence of criminal liability for failure to comply with it. Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for willful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand. The element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty reasonably believes that the choice to do so does not exist. [10]
[21] Both Grant [11] and Suberu [12] make it clear that rights subsidiary to detention, including the right to remain silent and the right to counsel, are triggered at the point when the individual is detained.
[22] In the judgment delivered by Chief Justice McLachlin and Justice Charron in Grant they explain that the above referenced Therens case held “that detention for Charter purposes occurs when a state agent, by way of physical or psychological restraint, takes away an individual’s choice simply to walk away.” [13]
[23] The fundamental right to choose is discussed in Grant as follows:
The general principle that determines detention for Charter purposes was set out in Therens: [page 378] a person is detained where he or she "submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist" (per Le Dain J., at p. 644). This principle is consistent with the notion of choice that underlies our conception of liberty and, as such, shapes our interpretation of ss. 9 and 10 of the Charter. When detention removes the "choice to do otherwise" but comply with a police direction, s. 10(b) serves an indispensable purpose. It protects, among other interests, the detainee's ability to choose whether to cooperate with the investigation by giving a statement. The ambit of detention for constitutional purposes is informed by the need to safeguard this choice without impairing effective law enforcement. This explains why the extremes of formally asserted control on the one hand and a passing encounter on the other have been rejected; the former restricts detention in a way that denies the accused rights he or she needs and should have, while the latter would confer rights where they are neither necessary or appropriate.
The language of ss. 9 and 10 is consistent with this purpose-based approach to detention. The pairing of "detained" and "imprisoned" in s. 9 provides textual guidance for determining where the constitutional line between justifiable and unjustifiable interference should be drawn. "Imprisonment" connotes total or near-total loss of liberty. The juxtaposition of "imprisoned" with "detained" suggests that a "detention" requires significant deprivation of liberty. Similarly, the words "arrest or detention" in s. 10 suggest that a "detention" exists when the deprivation of liberty may have legal consequences. This linguistic context requires exclusion of police stops where the subject's rights are not seriously in issue. [14]
[24] An individual is detained when their “choice to do otherwise” but comply with police direction is removed. Safeguarding that choice without impairing effective law enforcement is the constitutional purpose and the reason section 10 extends beyond formal arrests to other circumstances where the deprivation of liberty may have legal consequences.
[25] There are two forms of psychological detention described in Grant:
- Where the subject is legally required to comply with a direction or demand; and
- Where there is no legal obligation to comply with a restrictive or coercive demand, but a reasonable person in the subject’s position would feel so obligated. [15]
[26] The first form of psychological detention does not apply to Dylan Smith’s situation. Pursuant to section 199 of the Highway Traffic Act Dylan Smith was legally required to report the accident to police and provide the officer the information concerning the accident as may be required by the officer. [16] He was not under any legal requirement to provide a statement. [17]
[27] The second form of psychological detention is the applicable form under review for this Application. It is acknowledged in Grant that this form of psychological detention is difficult to define. [18] This case is no exception to that finding.
[28] To determine if a reasonable person in Dylan Smith’s position would feel obligated to give Constable Dew a statement, this court must consider several factors. As held in Grant and Suberu the determination is an objective one, taking into consideration all the circumstances of the particular legal and factual situation and analyzing how a reasonable person in the situation would perceive the conduct of Police Constable Dew. [19]
[29] The test is set out in Grant as follows:
The objective nature of this inquiry recognizes that the police must be able to know when a detention occurs, in order to allow them to fulfill their attendant obligations under the Charter and afford the individual its added protections. However, the subjective intentions of the police are not determinative. (Questions such as police "good faith" may become relevant when the test for exclusion of evidence under s. 24(2) is applied, in cases where a Charter breach is found.) While the test is objective, the individual's particular circumstances and perceptions at the time may be relevant in assessing the reasonableness of any perceived power imbalance between the individual and the police, and thus the reasonableness of any perception that he or she had no choice but to comply with the police directive. To answer the question whether there is a detention involves a realistic appraisal of the entire interaction as it developed, not a minute parsing of words and movements. In those situations where the police may be uncertain whether their conduct is having a coercive effect on the individual, it is open to them to inform the subject in unambiguous terms that he or she is under no obligation to answer questions and is free to go. It is for the trial judge, applying the proper legal principles to the particular facts of the case, to determine whether the line has been crossed between police conduct that respects liberty and the individual's right to choose, and conduct that does not. [20]
[30] Suberu confirms that the applicant has the onus to show that in the circumstances they were effectively deprived of their liberty of choice. [21] Dylan Smith did not testify or provide affidavit evidence at the application to provide the court with information regarding his perspective about what occurred on January 7, 2023. The test is an objective one, so his decision not to testify is in no way fatal to his Application.
[31] The Respondent submitted several cases with different situations illustrating when the section 10 Charter rights line is and is not crossed.
[32] In Grant the individual’s liberty to choose to remain or leave was taken away by the conduct of police officers who blocked his path.
[33] In Suberu, which is described by the Supreme Court of Canada as the companion case to Grant, the individual was not detained during a brief exchange of some initial investigative questions prior to his arrest. The line between general questioning and focused interrogation is addressed and it was held the initial part of the encounter was the police officer orienting himself to the situation. He was trying to sort out if Mr. Suberu was involved in a criminal act such that he would need to detain or arrest him. The police officer was engaged in a general inquiry and had not yet zeroed in on Mr. Suberu. [22] Factors considered in Suberu include: the officer making no move to obstruct Mr. Suberu’s movement, the very brief duration of the encounter; and the purpose of the questioning to find out whether to proceed further. [23]
[34] In the Ontario Court of Appeal cases [R. v. Esposito][24] and [R. v. Bazinet][25] (pre-date Grant and Suberu) police attended at suspects’ residences and questioned them there. They were possible suspects at the time and they provided some incriminating evidence in response to questions put to them by the police. The Ontario Court of Appeal held in both cases that they were not detained during questioning.
[35] Similarly, in [R. v. Nicholas][26], the Ontario Court of Appeal held there was no deprivation of liberty where police attended at the residence and informed the person about offences they were investigating. There was no detention when he voluntarily provided a DNA sample in those circumstances.
[36] In [R. v. Hicks][27] the individual was a suspect and voluntarily attended the police station with his lawyer. A single question was asked while he was in an interview room to determine if he was the driver of the motor vehicle. He was arrested as soon as the police determined he was the driver. He was not detained when the question was asked.
[37] [R. v. Guenter][28] is similar to Dylan Smith’s situation in that Mr. Guenter was taken to a police cruiser. Unlike Dylan Smith’s situation, the purpose of moving Mr. Guenter to the cruiser was for the production of documentation, not for any kind of statement. Only four minutes had elapsed from the time officers arrived on scene to when Mr. Guenter was arrested. Mr. Guenter was not placed in the back of the cruiser until he was arrested, at which time he was read his rights to counsel and caution. The encounter between Mr. Guenter and the police took place during the initial stages of an accident investigation preliminary to any focus on possible charges.
[38] Another case involving a police cruiser is [R. v. Rowson][29]. The individual was walked over to a police vehicle and placed in the back seat. He was placed there for his own safety and comfort. He was not necessarily detained at that time, but detention occurred while he was still seated in the cruiser once the police began to suspect a criminal offence had been committed and once they told him he was no longer free to use his cell phone.
[39] The Respondent submitted several cases that speak to the status of detention prior to police demands or arrest. There is a common finding in those cases that there is no detention prior to police determining they have reasonable grounds to make a demand or an arrest. Factors considered in those cases include:
- The officer’s subjective intent is accompanied by actual conduct; [30]
- Exigent circumstances [31] or rapid events in a fluid and dynamic situation [32];
- The officer making no move to obstruct movement; [33]
- The purpose for the officer’s questions (preliminary questioning to understand what had transpired does not amount to detention); [34]
- The officer’s conduct (intimidating or inducing overtones, hostile or coercive); [35]
- Inhumane or oppressive conditions; [36]
[40] An additional factor raised by the Applicant is the presence of any practical barriers to the officer(s) fulfilling the Charter requirements. [37] The Applicant submits there were no barriers and Constable Dew should have held off on obtaining the statement from Dylan Smith until he had an opportunity to speak to counsel or waive his right to do so. He relies on the case of [R. v. Tutu][38] for the finding that failure to inform and provide rights to counsel is compounded where information is elicited in furtherance of an investigation in those circumstances.
Was the Appellant Detained Prior to Providing His Statement?
[41] This is not a case where the facts easily fall to one end of the spectrum or the other that would make the status of detention apparent. As such, the analysis must consider the entire interaction as it developed and make a determination about the reasonableness of any perceived power imbalance between Dylan Smith and Constable Dew and the perception that Dylan Smith had no choice but to comply with the police directive to provide a statement.
[42] The Crown submits that the detention of Dylan Smith did not crystalize when he gave Constable Dew his statement on January 7, 2023. There are several factors that weigh in favour of this position. Constable Dew was respectful and compassionate the entire time. His conduct was not intimidating, hostile or coercive. He did not use tactics to induce Dylan Smith to provide a statement. During his testimony, Constable Dew informed the court that he considered the cruiser a more appropriate place to sit and wait. He was concerned about Dylan Smith’s welfare and moved him there to keep him warm and protected from the chaos of the horrific accident scene. His recollection of events is that he asked and never ordered Dylan Smith to do things that evening. He explained that if Dylan Smith had refused to do anything he asked him to do, that would be fine. Dylan Smith never asked to leave.
[43] Constable Dew does not recall touching Dylan Smith. He was never handcuffed and was never placed under arrest. Constable Dew does not recall exactly what he said to Dylan Smith when they approached the cruiser, but told the court he would typically say something like, “you are not under arrest or anything, just have a seat”. Constable Dew did not charge him with any offences.
[44] Constable Dew recalled telling Dylan Smith that he would be needing a statement from him. He cautioned him prior to taking the statement by informing him that he may be charged with an offence, that he did not have to say anything and that anything he did say could be used as evidence. Dylan Smith acknowledged his understanding of the caution provided to him. The Respondent submits that Dylan Smith voluntarily provided his statement knowing he did not have to say anything.
[45] Dylan Smith submits that he was detained at the time he gave his statement to Constable Dew on January 7, 2023. Dylan Smith was cooperative and did everything Constable Dew asked of him that evening. Constable Dew stayed in close proximity to Dylan Smith from the moment he learned that Dylan Smith was the driver until he dropped him off at home. That included moving away from the individual who was struck, giving minimal space for privacy while Dylan Smith was obtaining medical attention from paramedics, walking to the police cruiser and while seated in the cruiser.
[46] While Dylan Smith was seated in the back of the police cruiser he had no independent means of leaving that space. There is no evidence he was informed that he could leave or that he could ask to leave. Constable Dew was seated in the front seat and they were separated by a plexiglass barrier. While Dylan Smith was seated in the back of the cruiser Constable Dew gathered both physical (car keys) and verbal (statement) evidence. The police cruiser was not just a place to sit and wait as Constable Dew indicated in his evidence. It was a place where Constable Dew was obtaining evidence for his investigation.
[47] Constable Dew had enough information prior to obtaining the statement to caution Dylan Smith that he may be charged with the Criminal Code of Canada offence of Dangerous Driving. He told Dylan Smith conflicting information about the statement. He said he would be needing a statement from him and he also cautioned him that he did not have to say anything.
[48] The Crown wants to use Dylan Smith’s statement at the trial. It is reasonable to assume his statement contains at least some incriminating evidence.
[49] To determine if a reasonable person in Dylan Smith’s circumstances would conclude they were detained, this court must consider the factors set out in Grant and Suberu [39] as follows:
- The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or singling out the individual for focused investigation.
[50] This court recognizes the findings in Grant regarding the important role of police in gathering information and the necessity of interference with an individual’s freedom of movement to carry out that role (per McLachlin C.J. and Charron J. in Grant at paragraphs 36 to 39). This is not a situation where it was unbeknownst to Constable Dew that Dylan Smith was implicated in the occurrence. He knew at the time that there had been a serious accident, that the individual was or would soon be deceased and that Mr. Smith was the driver. It is fair to say that Dylan Smith was singled out at that point for a focused investigation.
- 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.
[51] Constable Dew’s intention may not have been to physically and/or psychologically restrain Dylan Smith or to implement tactics that were coercive enough to effectively remove Dylan Smith’s choice to walk away from the situation, but his intentions are not the legal test. The test is whether a reasonable person in Mr. Smith’s position would conclude they had been deprived of the liberty of choice. The interaction commenced when Constable Dew discovered Dylan Smith was the driver. He escorted him away from the scene, to the paramedics and then to his cruiser. The statement was taken while Dylan Smith was isolated from others in the back seat of a police cruiser with no independent ability to walk away or access to any form of electronic communication device. Constable Dew typically informs people in that situation that they are not under arrest, but he does not recall what he said to Dylan Smith that evening. Dylan Smith was not informed that he had the choice to walk away. He was cautioned about charges he may face and was aware of his right not to say anything as well as the potential consequences about how anything he does say may be used as evidence.
[52] The duration of obtaining the statement took approximately 45 minutes. Mr. Smith was left alone in the backseat of the cruiser for approximately 5 minutes after that while Constable Dew obtained information about the status of his cell phone from his Sergeant. Constable Dew offered to drive him home and Dylan Smith remained in the rear seat of the cruiser for that portion of the evening as well. It was not until after he provided his statement that Dylan Smith learned he was not being charged with any offences.
- The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
[53] Dylan Smith was 21 years old at the time. No evidence was presented to the court about his mental capacity or any previous experiences he has had with the police. He was upset about the accident and it is reasonable to conclude he was in a vulnerable emotional state at the time he provided his statement to Constable Dew.
[54] The situational examples from the cases noted above as well as the additional factors examined by those courts are considered as follows:
Constable Dew’s subjective intent was to move to a more comfortable environment to obtain a statement from Dylan Smith. Although his conduct was not aggressive in any way, a reasonable person would perceive the situation differently than Constable Dew. There was a power imbalance exacerbated by Dylan Smith’s young age and vulnerable emotional state. After being placed in the backseat of a cruiser, told the officer needed a statement from him and cautioned about a charge he may face, it is reasonable he felt he had no choice but to remain and provide his statement.
There were exigent circumstances and a very dynamic situation unfolding but, unlike other officers in some of the other authorities considered in this application, Constable Dew’s focus was only on Dylan Smith. There were no practical barriers to him fulfilling the informational requirements of s.10(b). He had the time and focus to provide Dylan Smith with a caution about the Criminal Code Offence, a warning he did not have to say anything and how information he did convey may be used.
Constable Dew did obstruct the movement of Dylan Smith when he placed him in the back of the cruiser with no independent means of departure.
Constable Dew was past the point of preliminary questioning when he took the statement from Dylan Smith. He was not orienting himself to the situation or figuring out the nature of Dylan Smith’s involvement. He knew what happened and that Dylan Smith was the driver. By cautioning him before he took the statement, he demonstrated an understanding that Dylan Smith may provide incriminating evidence at that point. Constable Dew was no longer entitled simply to expect cooperation from Dylan Smith once there was a risk that he felt compelled to incriminate himself. A reasonable person would feel their choice to walk away was removed while confined in the rear seat of a police cruiser and being told by the officer that he needed a statement from them.
Constable Dew’s conduct was not intimidating, inducing, hostile or coercive. Dylan Smith was not placed in inhumane or oppressive conditions. Despite these factors, for all the reasons noted above, the circumstances would lead a reasonable person to believe they had to remain and provide a statement.
[55] This is not a situation where Dylan Smith felt compelled to cooperate with police out of a sense of moral or civic duty. By the time Dylan Smith provided his statement to Constable Dew he was no longer a bystander whose freedom of movement was interfered with as a result of police taking control of the situation. Constable Dew had specific grounds to connect Dylan Smith to the commission of a crime. A reasonable person in Dylan Smith’s circumstances would conclude their choice to walk away was removed. Whether or not the intention of Constable Dew was to take control over Dylan Smith and to elicit incriminating information, the physical and psychological situation crossed that line.
Conclusion
[56] Dylan Smith was detained when he provided his statement to Constable Dew while seated in the back of the police cruiser on January 7, 2023. At that point Mr. Smith’s liberty was constrained and he was in need of the Charter protection associated with section 10(b), to retain and instruct counsel without delay and to be informed of that right. He was denied that right.
Exclusion of the Evidence
[57] Section 24(2) of the Charter reads:
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. [40]
[58] At the start of these proceedings the parties agreed that if this court held that Dylan Smith was detained without his right to counsel, the statement should be excluded pursuant to section 24(2) of the Charter. Having regard to all the circumstances and the position of the parties on this point, I find that the admission of Dylan Smith’s statement would bring the administration of justice into disrepute.
Footnotes
[1] Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[2] R.S.O. 1990, c. H.8, ss. 130(3) and 32(1).
[3] R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
[4] R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460.
[5] R. v. Suberu, supra, at paras. 21-22.
[6] R. v. Grant, supra, at paragraph 37.
[7] R. v. Guenter, 2016 ONCA 572; R. v. Esposito, 1985 ONCA 118, [1985] O.J. No. 1002; R. v. Bazinet, 1986 ONCA 108, [1986] O.J. No. 187; R. v. Nicholas, 2004 ONCA 13008, [2004] O.J. No. 725.
[8] R. v. Grant, supra, at paragraph 44 and R. v. Suberu, supra, at paragraph 25.
[9] R. v. Therens, [1985] 1 S.C.R. 613.
[10] R. v. Therens, supra, at paragraph 53.
[11] R. v. Grant, supra, at paragraph 22.
[12] R. v. Suberu, supra, at paragraph 18.
[13] R. v. Grant, supra, at paragraph 25.
[14] R. v. Grant, supra, at paragraphs 28 to 29.
[15] R. v. Grant, supra, at paragraph 30.
[16] Highway Traffic Act, supra, s.199(1).
[17] R. v. Guenter, 2016 ONCA 572 and Gos v. Nicholson (1999), 41 M.V.R. (3d) 308 (Ont. C.A.).
[18] R. v. Grant, supra, at paragraph 31.
[19] R. v. Grant, supra at paragraph 31; R. v. Suberu, supra, at paragraph 28; R. v. Therens, supra, at paragraph.
[20] R. v. Grant, supra at paragraph 32.
[21] R. v. Suberu, supra, at paragraph 28.
[22] R. v. Suberu, supra, at paragraphs 29 to 32.
[23] R. v. Suberu, supra, at paragraph 33.
[24] R. v. Esposito, 1985 ONCA 118, [1985] O.J. No. 1002.
[25] R. v. Bazinet, 1986 ONCA 108, [1986] O.J. No. 187.
[26] R. v. Nicholas, 2004 ONCA 13008, [2004] O.J. No. 725.
[27] R. v. Hicks, 1988 ONCA 7148, [1988] O.J. No. 957.
[28] R. v. Guenter, supra.
[29] R. v. Rowson, 2015 ABCA 354, [2015] A.J. No. 1253.
[30] R. v. MacMillan, 2013 ONCA 109, [2013] O.J. No. 727 at paragraph 37.
[31] R. v. MacMillan, supra, at paragraph 39.
[32] R. v. Guenter, supra, at paragraph 46.
[33] R. v. Suberu, supra, at paragraph 33.
[34] R. v. Jin, 2018 ONSC 2898, [2018] O.J. No. 2523, at paragraphs 41 to 42.
[35] R. v. Esposito, supra, page 9 of 11.
[36] R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, paragraphs 6-9.
[37] R. v. Nguyen, 2008 ONCA 49 at paragraphs 21 to 22 and 54.
[38] R. v. Tutu, 2021 ONCA 805 at paragraphs 17 and 29.
[39] R. v. Grant, supra, at paragraph 44 and R. v. Suberu, supra, at paragraph 25.
[40] Canadian Charter of Rights and Freedoms, s. 24(2).