Supreme Court of Canada

R. v. Beaver

SUPREME COURT OF CANADA

Appeals Heard: February 14, 2022 Judgment Rendered: December 9, 2022 Dockets: 39480, 39481

Between: James Andrew Beaver — Appellant and His Majesty The King — Respondent — and — Attorney General of Ontario and Canadian Civil Liberties Association — Interveners

And Between: Brian John Lambert — Appellant and His Majesty The King — Respondent — and — Attorney General of Ontario — Intervener

Indexed as: R. v. Beaver

2022 SCC 54

File Nos.: 39480, 39481.

2022: February 14; 2022: December 9.

Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

Headnotes

Reasons for Judgment: (paras. 1 to 137) Jamal J. (Wagner C.J. and Moldaver, Rowe and Kasirer JJ. concurring)

Dissenting Reasons: (paras. 138 to 233) Martin J. (Karakatsanis, Côté and Brown JJ. concurring)

Criminal law — Evidence — Admissibility — Confessions rule — Voluntariness — Individual unlawfully detained after reporting death of roommate — Individual given police caution and advised of right to retain and instruct counsel without delay but refusing to contact lawyer and confessing to involvement in death — Individual later charged with manslaughter and seeking exclusion of confession as involuntary — Trial judge admitting confession and entering conviction — Whether confession admissible at trial.

Criminal law — Arrest — Warrantless arrest — Reasonable and probable grounds — Warrantless arrests by police of two individuals for murder after they reported death of roommate — Whether police had reasonable and probable grounds for arrests.

Constitutional law — Charter of Rights — Remedy — Exclusion of evidence — Police detaining two individuals with respect to death of roommate in breach of several of their Charter rights — Police attempting to make fresh start by later advising individuals of Charter rights and arresting them for murder — Whether confessions obtained in a manner that infringed Charter rights — Whether admitting confessions would bring administration of justice into disrepute — Canadian Charter of Rights and Freedoms, ss. 9, 10(a), (b), 24(2).

The accused, L and B, shared a townhouse with the deceased. One morning, L called 9‑1‑1 and alleged that he and B had arrived home to find the deceased dead in a puddle of blood. L told the 9‑1‑1 operator that they did not know how the deceased had died, but admitted that there had been altercations between them and the deceased all week. When police arrived at the scene, they unlawfully detained L and B under the Medical Examiners Act, which did not authorize detention. L and B were transported to the police headquarters where a homicide detective, after reviewing the file, directed that they be arrested for murder. The homicide detectives who conducted the subsequent interviews advised L and B of their right to retain and instruct counsel without delay and cautioned them on their right to silence. L consulted a lawyer, while B declined. After several hours of interrogation, L confessed to his involvement in the deceased's death. B also eventually confessed, in part after seeing a video of L's confession.

At issue at trial was the admissibility of these confessions. On voir dire, the trial judge held that the Crown had proved the voluntariness of the accused's confessions beyond a reasonable doubt and that neither of their confessions should be excluded under s. 24(2) of the Charter, as they had not been "obtained in a manner" that breached the Charter because the homicide detectives had made a "fresh start" from the earlier Charter violations.

Held (Karakatsanis, Côté, Brown and Martin JJ. dissenting): The appeals should be dismissed.

Per Wagner C.J. and Moldaver, Rowe, Kasirer and Jamal JJ.: B's confession was voluntary and thus admissible under the common law confessions rule, and the police had reasonable and probable grounds to arrest both accused for murder. However, although homicide detectives made a "fresh start" from the earlier Charter breaches in L's case, they did not do so in B's case. Nonetheless, admitting B's confession would not bring the administration of justice into disrepute.

The common law confessions rule provides that a confession to a person in authority is presumptively inadmissible, unless the Crown proves beyond a reasonable doubt that it was voluntary. Under this rule, an involuntary confession always warrants exclusion. But a voluntary confession will not always be admissible; it may also be excluded under s. 24(2) of the Charter if the accused establishes that the evidence was "obtained in a manner" that breached the Charter and that admitting it would bring the administration of justice into disrepute.

Voluntariness, broadly defined, is the touchstone of the confessions rule. It is a shorthand for a complex of values engaging policy concerns related to not only the reliability of confessions, but also to respect for individual free will, the need for the police to obey the law, and the fairness and integrity of the criminal justice system.

The police have statutory authority to arrest a person without a warrant under s. 495 of the Criminal Code, which allows a peace officer to arrest a person if, on reasonable grounds, they believe the person has committed or is about to commit an indictable offence. A warrantless arrest requires subjective and objective grounds to arrest. Contemporaneous notes are generally desirable in establishing reasonable grounds for a warrantless arrest, but they are not mandatory in all cases.

"Reasonable and probable grounds" as a basis for a warrantless arrest is a higher standard than "reasonable suspicion". Reasonable suspicion requires a reasonable possibility of crime, while reasonable and probable grounds requires a reasonable probability of crime.

Determining whether evidence should be excluded under s. 24(2) of the Charter proceeds in two parts. The first component — the threshold requirement — asks whether the evidence was "obtained in a manner" that infringed or denied a Charter right or freedom. The threshold requirement insists that there be a nexus between the Charter breach and the evidence.

Evidence will not be "obtained in a manner" that breached the Charter when the police made a "fresh start" from an earlier Charter breach by severing any temporal, contextual, or causal connection between the Charter breach and the evidence obtained or by rendering any such connection remote or tenuous. The concept of a "fresh start" was adopted from the common law "derived confessions rule".

In the instant case, deference is owed to the trial judge's conclusion that B's confession was voluntary, as B has not established that any palpable and overriding error infected the trial judge's findings of fact. Furthermore, when examining all the information before the homicide detective through the eyes of a reasonable person with knowledge, training, and experience comparable to that detective, the police had reasonable and probable grounds to arrest both accused for murder.

However, the trial judge erred in law by failing to apply the correct legal test and by applying an incorrect legal principle in his "fresh start" analysis by unhelpfully and inaccurately describing the police as having "cured" the earlier Charter breaches. The Charter breaches still occurred and merit condemnation. In L's case, the police effectively made a "fresh start" such that L's confession was not "obtained in a manner" that breached the Charter. In B's case, however, the same cannot be said, as the homicide detective referred back to the earlier caution given during B's unlawful detention, retaining a contextual connection with the Charter breaches. Having regard to all the circumstances, including the seriousness of the breaches, their minimal impact on B's Charter-protected interests, and society's strong interest in having the case adjudicated on the merits, the admission of B's confession would not bring the administration of justice into disrepute.

Per Karakatsanis, Côté, Brown and Martin JJ. (dissenting): The appeals should be allowed, the evidence obtained in a manner that infringed the accused's Charter rights excluded, the convictions set aside, and new trials ordered. There is disagreement with the majority's conclusion that it was lawful to arrest the accused for murder.

The police must have reasonable grounds to believe an individual committed or was about to commit an indictable offence in order to lawfully arrest them without prior judicial authorization. The reasonable belief must relate to two elements: whether an offence has been committed, and whether the person to be arrested committed the offence. Both elements require particularized evidence that goes beyond mere suspicion.

The need to establish reasonable grounds before effecting an arrest is not a mere procedural requirement — it is a constitutional imperative. An arrest is a key investigative step on which much hinges, both for the police and for the arrestee. It triggers intrusive police powers relating to detention, search, and questioning.

It is well‑recognized that police notes are crucial to the court's ability to meaningfully review the exercise of police power without prior judicial authorization, including the arrest power. The absence of notes is a factor to be considered in deciding whether to accept the police officer's testimony.

In the instant case, the information that the homicide detective explained formed the basis of his decision to arrest the accused may have given rise to a reasonable suspicion, but to accept that it formed the basis of reasonable grounds to believe that they killed the deceased would erode the reasonable grounds standard.

The notion of a "fresh start" is not part of the law in Canada and should not be so recognized. It is unnecessary because the established holistic approach is more than adequate to the task. The concept of a "fresh start" detracts from the broad and generous approach that the Court has adopted for the "obtained in a manner" requirement of s. 24 of the Charter.

Because the trial judge erred in concluding that there were reasonable grounds to arrest the accused and in relying on the concept of a "fresh start", his conclusion that the evidence was not "obtained in a manner" within the meaning of s. 24(2) of the Charter is not owed deference. There is a strong case for exclusion on all three Grant factors, and the admission of the evidence would bring the administration of justice into disrepute.

Cases Cited

By Jamal J.

Applied: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; considered: R. v. Tessier, 2018 ABQB 387, rev'd 2020 ABCA 289, 12 Alta. L.R. (7th) 55, rev'd 2022 SCC 35, [2022] 2 S.C.R. 660; R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235; R. v. Simon, 2008 ONCA 578, 269 O.A.C. 259; referred to: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3; R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500; R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405; Boudreau v. The King, [1949] S.C.R. 262; R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Brown, 2015 ONSC 3305; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; R. v. Storrey, [1990] 1 S.C.R. 241; R. v. Latimer, [1997] 1 S.C.R. 217; R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220; R. v. Golub (1997), 34 O.R. (3d) 743; R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63; R. v. Debot, [1989] 2 S.C.R. 1140; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100; R. v. Henareh, 2017 BCCA 7; R. v. Loewen, 2010 ABCA 255, 490 A.R. 72; R. v. Al Askari, 2021 ABCA 204, 28 Alta. L.R. (7th) 129; R. v. Omeasoo, 2019 MBCA 43, [2019] 6 W.W.R. 280; R. v. Summers, 2019 NLCA 11, 4 C.A.N.L.R. 156; R. v. Ha, 2018 ABCA 233, 71 Alta. L.R. (6th) 46; R. v. MacCannell, 2014 BCCA 254, 359 B.C.A.C. 1; R. v. Rezansoff, 2014 SKCA 80, 442 Sask. R. 1; R. v. Biron, [1976] 2 S.C.R. 56; R. v. Brayton, 2021 ABCA 316, 33 Alta. L.R. (7th) 241; R. v. Montgomery, 2009 BCCA 41, 265 B.C.A.C. 284; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657; R. v. Stairs, 2022 SCC 11, [2022] 1 S.C.R. 169; R. v. Nguyen, 2017 BCPC 131; R. v. Kroeker, 2019 BCPC 127; R. v. Rauch, 2022 BCPC 117; R. v. Daley, 2015 ONSC 7367; R. v. Broyles, [1991] 3 S.C.R. 595; R. v. Plaha (2004), 189 O.A.C. 376; R. v. Strachan, [1988] 2 S.C.R. 980; R. v. McSweeney, 2020 ONCA 2, 451 C.R.R. (2d) 357; R. v. Lauriente, 2010 BCCA 72, 283 B.C.A.C. 215; R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721; R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3; R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561; R. v. Lewis, 2007 ONCA 349, 86 O.R. (3d) 46; R. v. Woods, 2008 ONCA 713; R. v. Hamilton, 2017 ONCA 179, 347 C.C.C. (3d) 19; R. v. I. (L.R.) and T. (E.), [1993] 4 S.C.R. 504; R. v. R. (D.), [1994] 1 S.C.R. 881; R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688; R. v. Dawkins, 2018 ONSC 6394; R. v. Chung, 2020 SCC 8; R. v. Keror, 2017 ABCA 273, 57 Alta. L.R. (6th) 268; R. v. Goldhart, [1996] 2 S.C.R. 463; R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R. v. Lafrance, 2022 SCC 32, [2022] 3 S.C.R. 393; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202; R. v. G.T.D., 2017 ABCA 274, 57 Alta. L.R. (6th) 213, rev'd 2018 SCC 7, [2018] 1 S.C.R. 220; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689; R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135; R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561; R. v. Godoy, [1999] 1 S.C.R. 311; R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643; R. v. Chapman, 2020 SKCA 11, 386 C.C.C. (3d) 24.

By Martin J. (dissenting)

R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Goldhart, [1996] 2 S.C.R. 463; R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Storrey, [1990] 1 S.C.R. 241; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Baron v. Canada, [1993] 1 S.C.R. 416; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657; Wood v. Schaeffer, 2013 SCC 71, [2013] 3 S.C.R. 1053; R. v. Lotfy, 2017 BCCA 418, 357 C.C.C. (3d) 516; R. v. Faulkner, 2020 ABQB 231; R. v. Abdulatif, 2017 ONSC 2089; R. v. Mascoe, 2017 ONSC 4208, 350 C.C.C. (3d) 208; United States of America v. Sheppard, 2013 QCCS 5260, 295 C.R.R. (2d) 113; R. v. Davidoff, 2013 ABQB 244, 560 A.R. 252; R. v. Odgers, 2009 ONCJ 287; R. v. Fisher, 2005); R. v. Feeney, [1997] 2 S.C.R. 13; R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561; R. v. Simon, 2008 ONCA 578, 269 O.A.C. 259; R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721; R. v. Hamilton, 2017 ONCA 179, 347 C.C.C. (3d) 19; R. v. McSweeney, 2020 ONCA 2, 451 C.R.R. (2d) 357; R. v. Plaha (2004), 189 O.A.C. 376; R. v. Reilly, 2020 BCCA 369, 397 C.C.C. (3d) 219, aff'd 2021 SCC 38; R. v. Black, [1989] 2 S.C.R. 138; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202; R. v. Kokesch, [1990] 3 S.C.R. 3; R. v. Genest, [1989] 1 S.C.R. 59; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494; R. v. Washington, 2007 BCCA 540, 248 B.C.A.C. 65; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460; R. v. Prosper, [1994] 3 S.C.R. 236; R. v. Ross, [1989] 1 S.C.R. 3; R. v. Noel, 2019 ONCA 860; R. v. Burlingham, [1995] 2 S.C.R. 206.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 7, 8, 9, 10(a), (b), 24.

Criminal Code, R.S.C. 1985, c. C-46, ss. 495, 503(1).

Fatality Inquiries Act, R.S.A. 2000, c. F‑9.

Authors Cited

Ewaschuk, E. G. Criminal Pleadings & Practice in Canada, 3rd ed. Toronto: Thomson Reuters, 2022 (loose-leaf updated September 2022, release 1).

Marin, René J. Admissibility of Statements, 9th ed. Toronto: Thomson Reuters, 1996 (loose‑leaf updated September 2022, release 2).

McWilliams' Canadian Criminal Evidence, 5th ed. by S. Casey Hill, David M. Tanovich and Louis P. Strezos, eds. Toronto: Thomson Reuters, 2013 (loose‑leaf updated July 2022, release 3).

Paciocco, David M., Palma Paciocco and Lee Stuesser. The Law of Evidence, 8th ed. Toronto: Irwin Law, 2020.

Penney, Steven, Vincenzo Rondinelli and James Stribopoulos. Criminal Procedure in Canada, 3rd ed. Toronto: LexisNexis, 2022.

Sankoff, Peter J. The Law of Witnesses and Evidence in Canada. Toronto: Thomson Reuters, 1991 (loose-leaf updated September 2022, release 3).

Watt, David. Watt's Manual of Criminal Evidence. Toronto: Thomson Reuters, 2021.

APPEALS from a judgment of the Alberta Court of Appeal (O'Ferrall, Wakeling and Feehan JJ.A.), 2020 ABCA 203, 4 Alta. L.R. (7th) 301, [2020] 7 W.W.R. 550, 393 C.C.C. (3d) 175, 459 C.R.R. (2d) 105, [2020] A.J. No. 581 (QL), 2020 CarswellAlta 933 (WL), affirming a decision of Yamauchi J., 2019 ABQB 125, 88 Alta. L.R. (6th) 337, [2019] A.J. No. 292 (QL), 2019 CarswellAlta 462 (WL). Appeals dismissed, Karakatsanis, Côté, Brown and Martin JJ. dissenting.

Sarah Rankin and Kelsey Sitar, for the appellant James Andrew Beaver.

Jennifer Ruttan and Michael Bates, for the appellant Brian John Lambert.

Rajbir Dhillon and Andrew Barg, for the respondent.

Mabel Lai and Nicholas Hay, for the intervener the Attorney General of Ontario.

Samara Secter and Reakash Walters, for the intervener the Canadian Civil Liberties Association.

Majority Reasons

The judgment of Wagner C.J. and Moldaver, Rowe, Kasirer and Jamal JJ. was delivered by

Jamal J. —

I. Introduction

[ 1 ] At the heart of these appeals is the balance between the protection of the rights of the accused in the criminal process and society's interest in the effective investigation and prosecution of serious crimes. The appeals raise three issues: (1) the voluntariness of one of the appellants' confessions; (2) whether the police had reasonable and probable grounds to arrest the appellants for murder; and (3) whether the appellants' confessions should be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms.

[ 2 ] The appellants, Brian John Lambert and James Andrew Beaver, shared a townhouse in Calgary with the deceased, Sutton Bowers. One morning, Lambert called 9-1-1 and alleged that he and Beaver had arrived home to find Bowers dead in a puddle of blood. Lambert told the 9-1-1 operator that they did not know what had happened to Bowers, but admitted that there had been altercations between them all week. When police responded to the 9-1-1 call, they unlawfully detained Lambert and Beaver pursuant to the Medical Examiners Act, which did not authorize their detention. Lambert and Beaver were transported to the police headquarters, where they were kept in separate rooms. Once a homicide detective took over the case and was informed of the circumstances of their detention, he directed other detectives to arrest the appellants for murder. The homicide detectives who conducted the subsequent interviews each advised Lambert and Beaver of their right to retain and instruct counsel without delay and cautioned them on their right to silence. After several hours of interrogation, Lambert confessed to his involvement in Bowers' death. After seeing a video of Lambert's confession, Beaver also confessed.

[ 3 ] It is not disputed that the police officers who attended the scene in response to the 9-1-1 call breached the appellants' Charter rights by detaining them and taking them to the police station without lawful authority. It is also not disputed that when homicide detectives realized that their colleagues had unlawfully detained the appellants, they made efforts to "restart" the process. The appellants argue that these efforts were insufficient. As I will explain, only Beaver's confession was "obtained in a manner" that infringed his Charter rights. Even so, I will conclude that admitting Beaver's confession would not bring the administration of justice into disrepute under s. 24(2) of the Charter, because the Charter breaches had minimal impact on his protected interests and society has a strong interest in having the case adjudicated on its merits.

[ 4 ] At trial, the appellants argued that their confessions were involuntary and thus inadmissible under the common law confessions rule. The appellants also asserted that the police lacked reasonable and probable grounds to arrest them for murder. In the alternative, the appellants claimed that because the police failed to effect a "fresh start" from the earlier Charter violations arising from their unlawful detention, their confessions were "obtained in a manner" that breached the Charter.

[ 5 ] On voir dire, the Court of Queen's Bench of Alberta disagreed with the appellants and admitted their confessions into evidence (2019 ABQB 125, 88 Alta. L.R. (6th) 337). Based on this decision, the appellants entered an agreed statement of facts in which they admitted their role in the killing of Bowers. The trial judge convicted the appellants of manslaughter.

[ 6 ] I would dismiss the appeals, but for somewhat different reasons than the decisions under appeal. As I will explain, I agree with the lower courts that Beaver's confession was voluntary and thus admissible under the common law confessions rule. I also agree that the police had reasonable and probable grounds to arrest the appellants for murder. I disagree, however, with the trial judge's conclusion that the police "cured" the earlier Charter breaches. This description is both unhelpful and inaccurate. Nonetheless, I conclude that Lambert's confession was not "obtained in a manner" that breached the Charter. As for Beaver, his confession was "obtained in a manner" that breached the Charter, but admitting it would not bring the administration of justice into disrepute. I would therefore dismiss both appeals.

II. Background Facts

A. Three Roommates: Bowers, Lambert, and Beaver

[ 7 ] The appellants, Lambert and Beaver, and the deceased, Bowers, were roommates in a townhouse in Calgary. Bowers was the landlord of the property, as his father owned the townhouse and allowed him to live there rent-free and earn income by renting out rooms. Beaver and Lambert were tenants.

B. The Suspicious 9-1-1 Call

[ 8 ] On October 9, 2016, at 9:59 a.m., Lambert called 9-1-1 to report that "there's a guy in a puddle of blood . . . inside [his] house" (R.R., at p. 16). He told the 9-1-1 and Calgary Police Service operators that there had been "altercations all week", including when he came home the previous night and Bowers had told Beaver and him to "get the hell out" (p. 17). Lambert insisted he did not know how Bowers had died, saying that Bowers "was pretty angry at us" (p. 25).

[ 9 ] The Calgary Police Service operator told Lambert that the situation would be treated with "just a little bit of a suspicion because [they] don't know what's goin' on at this point" (pp. 24-25). Lambert insisted he did not know what happened to Bowers, repeating "[h]e was pretty angry at us, so we left. We came back and now he's dead" (p. 25).

C. The Police Find Bowers Dead

[ 10 ] Within minutes, police and emergency medical services arrived and found Bowers at the foot of the staircase, where he lay dead. The senior police officer, Sgt. James Lines, directed that this was a crime scene. He ordered two other officers, Csts. Trent Taylor and Alana Husband, to detain Lambert and Beaver, respectively.

D. The Police Detain Lambert

[ 11 ] As directed, Cst. Taylor told Lambert that he was being detained under the Medical Examiners Act. He advised Lambert that he had the right to retain and instruct a lawyer without delay and cautioned him, saying that he could be charged with an offence and that he did not have to say anything but that anything he said could be used as evidence. Lambert said he understood and wanted to talk to a lawyer.

[ 12 ] While Cst. Taylor drove Lambert to police headquarters, he asked him what had happened. Lambert repeated what he had told the 9-1-1 operator. On the voir dire, Cst. Taylor conceded that he had "messed up" and that he should not have questioned Lambert during the drive because he had asked to speak to a lawyer.

E. The Police Detain Beaver

[ 13 ] Cst. Husband placed Beaver in her police car. When Beaver was alone in the car, the car video recorded him saying"[t]hey're gonna take my statement" (A.R., vol. III, at p. 26). Cst. Husband then told him: "I just have to read you the legalities here. . . . I am investigatively, detaining you for, uh, whatever's going on in there, (laughing)" (p. 28).

[ 14 ] When Cst. Husband asked Beaver what had happened, he responded with a narrative consistent with Lambert's 9-1-1 call. She then drove him to police headquarters, told him he was still under investigative detention, and asked him again if he wanted to speak to a lawyer. Once again, he declined.

F. The Arrival of a Seasoned Homicide Detective

[ 15 ] Soon afterwards, a medical investigator from the Office of the Chief Medical Examiner contacted the Calgary Homicide Unit to communicate that Bowers' death appeared suspicious. At 10:36 a.m., S/Sgt. Colin Chisholm telephoned Det. Christian Vermette, a seasoned homicide detective, and told him of the suspicious death.

[ 16 ] At 10:46 a.m., Det. Vermette received an email from S/Sgt. Chisholm with the subject line "Looks like New homicide" and which confirmed what the Staff Sergeant had just told him by phone.

[ 17 ] At 11:22 a.m., Det. Vermette arrived at police headquarters, and at 11:39 a.m., he met with Csts. Taylor and Husband, who told him that Lambert and Beaver had been "Chartered and cautioned" (p. 210). Det. Vermette then "review[ed] the file", which included an Event Information document that summarized the 9-1-1 call and a Police Information Management System ("PIMS") report (pp. 209-10).

G. Lambert and Beaver Arrive at Police Headquarters

[ 18 ] At 11:15 a.m., Lambert and Beaver arrived at police headquarters. Lambert spoke to a lawyer by telephone. Beaver declined the opportunity to do so.

[ 19 ] Two homicide investigators, Dets. Matthew Demarino and Reagan Hossack, were tasked with interviewing Lambert and Beaver, respectively.

[ 20 ] At 12:09 p.m., Det. Demarino, who believed that Lambert and Beaver were already under arrest, began interviewing Lambert. He confirmed that Lambert had spoken to a lawyer and that he understood his lawyer's advice. Det. Demarino advised Lambert that, regardless of anything anyone had previously said to him"we're going to start from the very beginning" (A.R., vol. II, at p. 4). He also told Lambert that "this is a very, very serious matter", then cautioned him on his right to silence and informed him that he was being investigated for murder. Lambert again waived his right to counsel, choosing instead to invoke his right to silence.

[ 21 ] Det. Demarino asked Lambert if he knew the deceased. At first, Lambert responded that he "[d]on't wanna talk about nothin'", saying that the police "have ways to figure out who [the deceased] is without [him] having to talk to [them] about it" (A.R., vol. II, at pp. 7-8). Later, he confirmed that he knew Bowers and that he was his roommate.

[ 22 ] When Det. Demarino left the interview to give this information to the homicide team, he spoke with Cst. Husband. It was only at this time that Det. Demarino learned that neither Lambert nor Beaver had been arrested. At this point, Beaver's interview had not yet begun.

[ 23 ] At about 12:20 p.m., Det. Vermette was advised that neither Beaver nor Lambert had been arrested. At 12:22 p.m., Det. Vermette directed Dets. Demarino and Hossack to arrest Lambert and Beaver for murder. When making this direction, Det. Vermette believed that he had reasonable and probable grounds to direct the arrests.

H. Lambert Is Arrested for Murder

[ 24 ] At 12:29 p.m., Det. Demarino arrested Lambert for murder and then continued to interview him, underscoring that "this is a very, very serious matter" (p. 17). Det. Demarino tried to distance his interaction with Lambert from the earlier unlawful conduct by (1) telling him they were going to "start from the very beginning"; (2) cautioning him that he did not have to say anything but that "anything [he said] will be taken down and may be given in evidence against [him]"; (3) advising him of his right to retain and instruct counsel; and (4) informing him that he was being investigated for murder and arresting him for murder.

I. Beaver Is Arrested for Murder

[ 25 ] At roughly the same time, Det. Hossack arrested Beaver for murder. Unlike Det. Demarino, however, Det. Hossack did not caution Beaver again. Instead, she referred to Cst. Husband's earlier caution, saying"it's no different than what uh, Constable Husband read to you [a] little while ago" (A.R., vol. III, at p. 50). She later told Beaver that nothing had changed from when he was "read [his] rights" earlier in the day. She told Beaver that she was "starting off fresh" by arresting him for murder, but then qualified this by saying that "everything" that Cst. Husband had told him still applied and that "essentially [it's] the same" (A.R., vol. I, at p. 102).

J. Det. Vermette Confirms His Earlier Decision to Arrest the Appellants

[ 26 ] At 12:35 p.m., just a few minutes after Det. Vermette had directed that the appellants be arrested for murder, he learned that Bowers had sent Facebook messages to a friend the previous evening highlighting his conflicts with Beaver and Lambert:

6:36 p.m. im taking brian and jim down they fucked me

9:13 p.m. I just destroyed brian and jim now I can get some worthy roommates any suggestions

(R.R., at p. 45)

[ 27 ] These messages confirmed Det. Vermette's earlier decision to arrest the appellants.

K. After Police Questioning, Lambert Confesses

[ 28 ] Det. Demarino questioned Lambert for over 12 hours. At first, Lambert maintained that he had found Bowers dead in the townhouse and that he had nothing to do with his death. But at the tail end of the interview, Det. Demarino confronted Lambert with inculpatory evidence that led him to confess to his involvement in Bowers' death.

L. After Seeing a Video of Lambert's Confession, Beaver Confesses

[ 29 ] During the first 12 hours of his interview, Beaver also maintained that he had nothing to do with Bowers' death. He insisted that he did not remember details of events that took place before his arrival at the police headquarters because he had been drinking the night before. He continued to deny any involvement in Bowers' death after Det. Hossack left the room. Late in the interview, Beaver saw a video of Lambert's confession. He eventually confessed to his role in Bowers' death.

M. Beaver and Lambert Are Charged With Manslaughter and Obstruction of Justice

[ 30 ] Beaver and Lambert were charged with manslaughter for their involvement in Bowers' death and obstruction of justice for misleading the police in the investigation into Bowers' death.

III. Judgments Below

A. Court of Queen's Bench of Alberta (Yamauchi J.)

(1) The Voir Dire Ruling, 2019 ABQB 125, 88 Alta. L.R. (6th) 337

[ 31 ] On a blended voir dire, the trial judge held that the Crown had proved the voluntariness of the appellants' confessions beyond a reasonable doubt and that neither of their confessions should be excluded under s. 24(2) of the Charter.

[ 32 ] First, the trial judge held that Beaver's confession to Det. Hossack was voluntary. Applying R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, the trial judge concluded that Beaver had an operating mind and that the police did not extract his confession through threats, promises, police trickery, or oppression.

[ 33 ] Second, the trial judge held that the police had reasonable and probable grounds to arrest both appellants for murder. Det. Vermette subjectively believed he had reasonable and probable grounds to arrest the appellants (at para. 151), and his belief was objectively reasonable "based on the totality of the information available to the police at the time of the appellants' arrest" (para. 157).

[ 34 ] Third, the trial judge held that the homicide detectives "cured" the Charter breaches arising from the appellants' unlawful detention by making a "fresh start" and arresting the appellants for murder at the police headquarters (paras. 191 and 209). The Crown conceded and the trial judge found that the appellants' ss. 9, 10(a), and 10(b) Charter rights had been breached from the time of their initial detention until the time of their arrests for murder.

[ 35 ] Fourth, in the alternative, the trial judge held that admitting the appellants' confessions would not bring the administration of justice into disrepute (para. 254). Although the seriousness of the Charter-infringing state conduct in the initial police interactions favoured excluding the confessions, the impact of the Charter breaches on the appellants' Charter-protected interests was minimal.

(2) The Trial Decision

[ 36 ] With the confessions admitted into evidence, the parties submitted an agreed statement of facts inviting the trial judge to convict Lambert and Beaver for manslaughter and to make the following factual findings and inferences: (1) Lambert and Beaver verbally argued with Bowers about the rent that Bowers claimed they owed; (2) during this argument, Lambert and Beaver struck Bowers multiple times; (3) Bowers fell down the stairs and died as a result of blunt force injuries to his head; and (4) Lambert and Beaver left and did not seek help for Bowers.

[ 37 ] The trial judge accepted the agreed statement of facts, made the invited factual findings and inferences, and convicted the appellants of manslaughter. The Crown then stayed the obstruction of justice charges.

[ 38 ] The trial judge sentenced the appellants to four years' imprisonment, less credit for pretrial custody, and imposed various ancillary orders (2019 ABQB 235, paras. 78-81 ). He found that the appellants killed Bowers in a "two on one" attack involving "gratuitous violence" (para. 31).

B. Court of Appeal of Alberta, 2020 ABCA 203, 4 Alta. L.R. (7th) 301 (O'Ferrall, Wakeling and Feehan JJ.A.)

[ 39 ] The Court of Appeal dismissed the conviction appeals. There was no reviewable error in the trial judge's assessment of voluntariness (paras. 30-31). The police also had reasonable and probable grounds to arrest the appellants for murder and "made a practical and common-sense decision" to arrest them based on the information available (para. 37).

[ 40 ] The Court of Appeal agreed that the homicide detectives made a "fresh start" in arresting the appellants, such that their confessions were not "obtained in a manner" that breached the Charter (paras. 15 and 18). The police gathered little evidence of significance when the appellants were unlawfully detained (para. 16). Moreover, both appellants were advised of their rights upon being arrested for murder, either through a fresh caution (Lambert) or with reference to the earlier caution (Beaver) (para. 17).

[ 41 ] The Court of Appeal later dismissed the sentence appeals (2021 ABCA 227).

IV. Issues

[ 42 ] These appeals raise three issues:

A. Was Beaver's confession voluntary?

B. Did the police have reasonable and probable grounds to arrest the appellants for murder?

C. Should the appellants' confessions be excluded under s. 24(2) of the Charter?

V. Analysis

A. Was Beaver's Confession Voluntary?

[ 43 ] Before this Court, only Beaver challenges the voluntariness of his confession. He argues that his confession was involuntary and therefore inadmissible under the common law confessions rule. Beaver notes that the trial judge was the same trial judge as in R. v. Tessier, 2018 ABQB 387, a decision subsequently overturned by this Court (2022 SCC 35, [2022] 2 S.C.R. 660), and invites the Court to conclude that the trial judge applied the same flawed approach in this case.

[ 44 ] As I will elaborate, I do not accept that Beaver's confession was involuntary. It therefore need not be excluded under the common law confessions rule.

(1) The Common Law Confessions Rule

(a) General Principles

[ 45 ] The common law confessions rule provides that a confession to a person in authority is presumptively inadmissible, unless the Crown proves beyond a reasonable doubt that the confession was voluntary (Oickle, at paras. 30 and 68; R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 14; R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 27).

[ 46 ] At the heart of the confessions rule is the delicate balance between individual rights and collective interests in the criminal justice system (Singh, at paras. 1, 21, 27-28, 31 and 34; Tessier (SCC), at paras. 4 and 69; Oickle, at para. 33). The "twin goals" of the rule involve "protecting] the rights of accused persons" and "facilitat[ing] the search for truth" (Singh, at para. 27).

[ 47 ] Voluntariness, broadly defined, is the "touchstone" of the confessions rule (Oickle, at paras. 27, 32 and 69; Spencer, at para. 11; Singh, at para. 31). Voluntariness is a shorthand for a complex of values engaging policy concerns related to not only the reliability of confessions, but also to respect for individual free will, the need for the police to obey the law, and the fairness and integrity of the criminal justice system (Oickle, at para. 27).

[ 48 ] The application of the confessions rule is necessarily flexible and contextual. When assessing the voluntariness of a confession, the "trial judge must determine, based on the whole context of the case, whether the statements made by an accused were reliable and whether the conduct of the state was acceptable" (Singh, at para. 38).

(b) Oppression

[ 49 ] Oppression focusses on the atmosphere of a police interview. This Court has accepted that "[o]ppression clearly has the potential to produce false confessions" because a suspect may "confes[s] purely out of a desire to escape [inhumane] conditions" (Oickle, at paras. 58 and 60). The non-exhaustive factors informing oppression include "depriving the suspect of food, clothing, water, sleep, or medical attention; . . . making threats or promises; . . . or . . . excessively aggressive, intimidating questioning for a prolonged period of time" (Oickle, at para. 60; see also Tessier (SCC), at para. 68).

(c) The Role of a Police Caution

[ 50 ] The role of a police caution in the voluntariness analysis was recently clarified in Tessier (SCC), where Kasirer J. affirmed, at para. 5, that "the presence or absence of a police caution is an 'important' factor in answering the question of voluntariness", based on Charron J.'s guidance in Singh (at para. 29).

[ 51 ] In Tessier (SCC), Kasirer J. explained that if the accused was a suspect, the absence of a caution is prima facie evidence of — but does not itself establish — involuntariness (paras. 11 and 89). Neither a caution nor proof of actual knowledge of the right to silence is a necessary condition for voluntariness (paras. 8 and 88).

[ 52 ] When the police have not given a caution, the Crown must "show that the absence of a caution did not undermine the suspect's free choice to speak to the police as part of the contextual examination of voluntariness" (Tessier (SCC), at para. 8). The absence of a caution may be afforded less weight when the accused had other indications of their right to silence or the consequences of speaking with the police (para. 88):

While not necessary for the Crown to demonstrate, proof that the accused was in fact subjectively aware of their right to silence or aware of the consequences of speaking will be powerful evidence that the absence of a caution did not undermine voluntariness. In such an instance, doubts as to fairness . . . from the absence of a caution plainly do not arise.

[ 53 ] Some of the non-exhaustive factors that can help show the suspect was subjectively aware of their right to silence or of the consequences of speaking to the police include (1) the suspect's awareness of being recorded; (2) indications that the suspect is directing the conversation; (3) the suspect's prior experience with the criminal justice system; (4) statements by the suspect showing knowledge of their right to silence; (5) the suspect's reliance on the right to silence; and (6) a direction by the suspect's legal counsel to remain silent (Tessier (SCC), at para. 89).

[ 54 ] Absent an error of law in relation to the applicable legal principles, a trial judge's application of the voluntariness framework is a question of fact or of mixed fact and law attracting appellate deference (Oickle, at para. 22; Spencer, at paras. 16-18; Tessier (SCC), at para. 46). Mere disagreement with the trial judge's findings is insufficient to displace this deference; only "palpable and overriding" errors of fact will suffice (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 10).

(2) Application

[ 55 ] Beaver claims that the trial judge and the Court of Appeal erred by taking a narrow approach to voluntariness that merely glossed over whether he had been denied his right to silence or had made a meaningful choice to speak with the police. He claims that the trial judge mechanically reviewed the Oickle factors and ignored the overall context.

[ 56 ] As I will explain, I disagree with Beaver's submission that his confession was involuntary.

(a) The Trial Judge Correctly Stated the Law and Concluded That Beaver's Confession Was Voluntary Based on Three Findings of Fact

[ 57 ] As the Court of Appeal held (at paras. 28-29), the trial judge correctly cited the general legal principles of voluntariness from Oickle and Singh (paras. 43-46). He properly noted that voluntariness is the touchstone of the confessions rule and must be examined contextually (para. 44). He also appropriately considered whether Beaver's confession resulted from oppression (paras. 95-96), whether a police caution was given and understood (paras. 90-92), and whether Beaver had an operating mind (para. 93).

[ 58 ] In my view, the trial judge made three findings of fact that justified his conclusion that Beaver's confession was voluntary: (1) Beaver was given a police caution and understood that he did not have to speak to the police and that anything he said could be used in evidence; (2) Beaver knew exactly why Det. Hossack was interviewing him in a murder investigation; and (3) Beaver's interview was not oppressive.

(i) Beaver Was Given a Police Caution and Understood It

[ 59 ] First, the trial judge found as fact that Beaver was given a police caution and understood it (paras. 90-91). He was given a police caution at the scene, even if only when he was unlawfully detained. Cst. Husband used standard wording, telling him: "You're not obliged to say anything unless you wish to do so, but anything you say may be given in evidence" (A.R., vol. III, at p. 28). Beaver acknowledged that he understood the caution.

[ 60 ] The trial judge appreciated that the question before him was whether Beaver's confession was voluntary, even though Det. Hossack did not caution Beaver during her interview at the station but referred back to Cst. Husband's caution at the scene (paras. 90-91). The trial judge stated that "[t]he fact that Cst. Husband did not review the Charter caution with Beaver before he arrived at the Homicide Unit offices does not impair Beaver's right to silence" (para. 91).

[ 61 ] Here, the fact that Det. Hossack did not caution Beaver again upon his arrest is not "prima facie evidence that the suspect has been unfairly denied their choice to speak to the police" (Tessier (SCC), at para. 11). Unlike the accused in Tessier, Beaver had been cautioned and understood the caution given by Cst. Husband.

(ii) Beaver Knew the Police Were Interviewing Him in a Murder Investigation and Subjectively Understood the Consequences of Speaking With the Police

[ 62 ] Second, and relatedly, the trial judge found as fact that Beaver knew why Det. Hossack was interviewing him after he had been arrested for murder and what he would be questioned about (paras. 83, 93 and 246). Before proceeding with the interview, Det. Hossack told Beaver "right now you're under arrest for murder" (A.R., vol. III, at p. 51).

[ 63 ] Beaver subjectively knew the consequences of speaking with the police upon his arrest (Tessier (SCC), at para. 88). For example, in formally waiving his right to counsel, Beaver confirmed that he understood that Det. Hossack could only take a statement from him if Det. Hossack was sure that Beaver understood what he was doing "when [he] voluntarily [chose] to speak with [her]" and "that any statement [he gave] could be used in evidence" (A.R., vol. I, at p. 101).

[ 64 ] Because the trial judge found as fact that Beaver "knew exactly why Det. Hossack was interviewing him" (para. 93), this is a case in which "doubts as to fairness . . . from the absence of a caution plainly do not arise" (Tessier (SCC), at para. 88).

[ 65 ] Even so, Beaver argues that Det. Hossack unfairly deprived him of a meaningful choice about whether to speak to the police. He says that Det. Hossack was "deliberately casual" when arresting him for murder, including by telling him the caution was "no different than what uh, Constable Husband read to you [a] little while ago" (A.R., vol. III, at p. 50) and by telling him that being arrested for murder did not necessarily mean that he would be charged with murder.

[ 66 ] I do not agree. It was legally and factually accurate for Det. Hossack to tell Beaver that being arrested for murder did not necessarily mean he would be charged with murder (see R. v. Brown, 2015 ONSC 3305, at para. 124 ). Beaver also says that Det. Hossack sent a mixed signal about the seriousness of the arrest by saying that it was "no different" from when Cst. Husband took him into custody "for whatever's going on in there". However, even if Det. Hossack minimized the seriousness of the arrest, this does not amount to trickery sufficient to render Beaver's confession involuntary.

(iii) Beaver's Interview Was Not Oppressive

[ 67 ] Lastly, the trial judge found as fact that the circumstances of Beaver's interview were not oppressive (paras. 95-96). I disagree with Beaver's claim that Det. Hossack created an oppressive atmosphere by asking increasingly confrontational questions during an interview that spanned 13 hours. The trial judge's finding that the interview was not oppressive was reasonable and was supported by evidence in the record.

(b) Conclusion: Beaver's Confession Was Voluntary

[ 68 ] The trial judge properly applied the relevant legal principles in deciding that Det. Hossack's interview of Beaver raised no concern as to the voluntariness of his confession. Because Beaver has not established that any palpable and overriding error infected the trial judge's findings of fact, deference is owed to his conclusion that Beaver's confession was voluntary. As a result, Beaver's confession is not inadmissible under the common law confessions rule.

B. Did the Police Have Reasonable and Probable Grounds to Arrest the Appellants for Murder?

[ 69 ] The second issue is whether the police had reasonable and probable grounds to arrest the appellants for murder. It is uncontested that Det. Vermette instructed the homicide detectives to arrest the appellants after they had been arbitrarily detained for just over two hours. The appellants claim that Det. Vermette's decision to arrest them was rash and unsupported by credible evidence, and that he lacked both subjective and objective grounds to arrest them. I approach this issue with the vigilance required to ensure that the police do not use unlawful detentions as a first step to finding grounds for an arrest.

[ 70 ] As I will elaborate, even with this vigilance in mind, I do not accept that the appellants' arrest for murder was unlawful.

(1) Legal Principles Governing a Warrantless Arrest

[ 71 ] The police have statutory authority to arrest a person without a warrant under s. 495 of the Criminal Code, R.S.C. 1985, c. C-46. The applicable part of s. 495 in this appeal, s. 495(1)(a), allows a peace officer to arrest a person without a warrant if, on reasonable grounds, they believe the person has committed or is about to commit an indictable offence.

[ 72 ] The essential legal principles governing a warrantless arrest are settled:

1. A warrantless arrest requires subjective and objective grounds to arrest. The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint (R. v. Storrey, [1990] 1 S.C.R. 241, at p. 250).

2. In assessing the subjective grounds for arrest, the question is whether the arresting officer honestly believed that the suspect committed the offence (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 17). Subjective grounds for arrest are often established through the police officer's testimony. This requires the trial judge to evaluate the officer's credibility, including whether the officer actually believed they had reasonable grounds to make the arrest (Storrey, at p. 250).

3. The arresting officer's subjective grounds for arrest must be justifiable from an objective viewpoint. This objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person standing in the officer's shoes with the officer's knowledge, training, and experience (R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234, at para. 56; R. v. Ha, 2018 ABCA 233, 71 Alta. L.R. (6th) 46, at paras. 13-16).

4. Evidence based on the arresting officer's training and experience should not be uncritically accepted, but neither should it be approached with "undue scepticism" (R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 64-65). Although the analysis is conducted from the perspective of a reasonable person in the officer's shoes, courts must independently review the officer's reasoning to ensure that the arrest was lawful.

5. In evaluating the objective grounds to arrest, courts must recognize that"[o]ften, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which may be incomplete" (R. v. Latimer, [1997] 1 S.C.R. 217, at para. 29).

6. "Reasonable and probable grounds" is a higher standard than "reasonable suspicion". Reasonable suspicion requires a reasonable possibility of crime, while reasonable and probable grounds requires a reasonable probability of crime (R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 27; R. v. Debot, [1989] 2 S.C.R. 1140, at pp. 1168-69).

7. The police cannot rely on evidence discovered after the arrest to justify the subjective or objective grounds for arrest (R. v. Biron, [1976] 2 S.C.R. 56, at p. 72; R. v. Brayton, 2021 ABCA 316, 33 Alta. L.R. (7th) 241, at para. 43; Ha, at paras. 20-23; R. v. Montgomery, 2009 BCCA 41, 265 B.C.A.C. 284, at para. 29).

8. When a police officer orders another officer to make an arrest, the police officer who directed the arrest must have had reasonable and probable grounds. It is immaterial whether the officer who makes the arrest personally had reasonable and probable grounds (Debot, at pp. 1166-67).

[ 73 ] The existence of reasonable and probable grounds for a warrantless arrest is based on the trial judge's factual findings reviewable only for palpable and overriding error. Whether the facts as found by the trial judge amount to reasonable and probable grounds is a question of law reviewable for correctness (Shepherd, at paras. 20-21).

(2) Contemporaneous Police Notes Are Desirable but Not Mandatory in a Warrantless Arrest

[ 74 ] The appellants do not question the legal principles above. Instead, they contend that a warrantless arrest is unlawful where the police fail to take detailed contemporaneous notes of their grounds for arrest and the material relied on in forming those grounds. They claim that the lack of contemporaneous notes frustrates a court's ability to review the existence of subjective grounds for arrest, the information known to the officer at the time of arrest, and whether this information justifies the subjective grounds from an objective viewpoint.

[ 75 ] I agree that contemporaneous notes are generally desirable when determining whether the police had reasonable and probable grounds for a warrantless arrest, but I disagree that such notes should be mandatory in all cases. This Court has insisted on detailed notes to justify the police conducting warrantless cell phone searches (R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 82), and has encouraged them in several contexts, including for strip searches (R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 101), for warranted searches of a computer (R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 70), and after searching a home incident to arrest (R. v. Stairs, 2022 SCC 11, [2022] 1 S.C.R. 169, at para. 81). However, our law has never insisted on contemporaneous notes for all warrantless arrests, nor would I impose such a requirement. Insisting on contemporaneous notes in all cases could undermine the ability of the police to respond appropriately to the dynamic situations they face each day.

[ 76 ] The lack of contemporaneous notes does not necessarily frustrate judicial review of warrantless arrests. Courts routinely evaluate the existence of reasonable and probable grounds based on the arresting officer's testimony and other evidence (see, e.g., R. v. Nguyen, 2017 BCPC 131; R. v. Kroeker, 2019 BCPC 127; R. v. Rauch, 2022 BCPC 117; R. v. Daley, 2015 ONSC 7367).

[ 77 ] I therefore conclude that contemporaneous notes are not legally required for a warrantless arrest in all cases. Nor, as I will explain, does the absence of such notes frustrate judicial review here.

(3) Application

(a) Det. Vermette Had Reasonable and Probable Grounds to Arrest the Appellants

[ 78 ] Here, the trial judge accepted Det. Vermette's testimony that he had subjective reasonable and probable grounds to direct the appellants' arrests for murder (paras. 151, 153, 157, 232 and 240). That finding is uncontested. The contested issue is whether those grounds were objectively reasonable. The appellants argue that the absence of contemporaneous notes defeats the trial judge's conclusion that Det. Vermette had objectively reasonable grounds to arrest them.

[ 79 ] I do not agree. I readily accept that some of the evidence Det. Vermette had when he formed his reasonable and probable grounds may have pointed towards Bowers' death being an accident rather than murder. This includes, for example, Lambert's statement to the 9-1-1 operator that "[Beaver] says he's had too much to drink" the night before (R.R., at p. 23) and that Bowers fell down a flight of stairs.

[ 80 ] I also readily accept that the police relied on circumstantial evidence to establish reasonable and probable grounds to arrest the appellants, but this is not unusual. When the police learn of a suspicious death and there is no direct evidence of who may be responsible, they routinely look to circumstantial evidence, such as opportunity, motive, and the suspicious circumstances of the death, to assess whether there is a reasonable probability that a person killed the deceased.

[ 81 ] Here, the trial judge's factual findings confirm that Det. Vermette's belief that the appellants were connected to Bowers' death was objectively reasonable when he directed their arrest. Far from having a mere suspicion, Det. Vermette had compelling and credible information that the appellants had a motive and opportunity to kill Bowers, that Bowers' death was suspicious, and that the appellants were the most likely suspects.

(i) The Appellants Had Motive and Opportunity to Kill Bowers

[ 82 ] The trial judge found that both appellants had the motive and opportunity to kill Bowers (para. 159). These factual findings were amply supported by the information before Det. Vermette when he formed his subjective reasonable and probable grounds. The appellants had motive to kill Bowers based on the physical altercations between them in the days leading up to his death and Bowers' threat to evict them from the townhouse the night before his death.

(ii) Bowers' Death Was Suspicious

[ 83 ] The totality of the circumstances also showed that Bowers' death was suspicious.

[ 84 ] First, Det. Vermette, a seasoned homicide detective, viewed the death as suspicious. His view was supported by the call he had received from S/Sgt. Chisholm calling him into work. S/Sgt. Chisholm had advised him that he had spoken with the medical investigator's office, which had "vast experience in deciding what cases need further investigation" (ABQB voir dire reasons, at para. 158), and that Bowers' death appeared suspicious.

[ 85 ] Second, the evidence of the appellants' motive and opportunity reinforced the suspicious nature of the death. Bowers was found dead in the townhouse he lived in with the appellants, the morning after he had argued with them and had angrily told them to "get the hell out". This atmosphere of volatility and acrimony strongly suggested that the death was not accidental.

[ 86 ] Finally, police found Bowers lying face down in a pool of blood with apparent trauma to his body, and the townhouse was being treated as a crime scene (ABQB voir dire reasons, at para. 158).

(b) Det. Vermette Did Not Form His Grounds to Arrest in Two Minutes

[ 87 ] I also do not accept the appellants' argument that Det. Vermette's decision to arrest the appellants for murder was a "hurried decision" made "two minutes after being advised the appellants were unlawfully detained" (Lambert factum, at para. 48; Beaver factum, at para. 44). Det. Vermette was not acting on only two minutes of information. He had first been telephoned about the death at 10:36 a.m. He had received an email at 10:46 a.m. confirming that the death appeared to be a homicide. He had arrived at the police headquarters at 11:22 a.m. and spent 17 minutes reviewing the file. He then met with Csts. Taylor and Husband at 11:39 a.m. It was only at about 12:20 p.m. — approximately an hour and forty minutes after Det. Vermette arrived at police headquarters — that he learned neither appellant had been arrested. His decision was not made in two minutes.

(c) Conclusion: The Appellants Were Lawfully Arrested

[ 88 ] Examining all the information before Det. Vermette — including the appellants' motive to kill Bowers, the opportunity they had to act on this motive, and the evidence that Bowers' death was suspicious — through the eyes of a reasonable person with the knowledge, training, and experience comparable to Det. Vermette, I am satisfied that his belief that the appellants had committed an indictable offence was objectively reasonable. I therefore conclude that the police had reasonable and probable grounds to arrest the appellants for murder.

C. Should the Appellants' Confessions Be Excluded Under Section 24(2) of the Charter?

[ 89 ] The final issue is whether the appellants' confessions should be excluded from evidence under s. 24(2) of the Charter. The appellants say that because the police failed to effect a "fresh start" from the earlier Charter violations arising from their unlawful detention, their confessions were "obtained in a manner" that breached the Charter, such that their admission would bring the administration of justice into disrepute.

(1) The Charter Rights Infringed

[ 90 ] The s. 24(2) analysis requires identifying the Charter rights infringed. The Crown conceded, and the trial judge found, that the police breached the appellants' ss. 9, 10(a), and 10(b) Charter rights from when they were unlawfully detained until they were arrested for murder about two hours later.

[ 91 ] I do not accept the appellants' suggestion that the trial judge found that the police breached their s. 8 Charter rights. The trial judge considered only Lambert's s. 8 Charter rights and found that both his arrest for murder and the search of his person incident to arrest were lawful (para. 169).

[ 92 ] I also reject the appellants' suggestion that the trial judge found that the police breached their rights to silence under s. 7 of the Charter. The trial judge noted that because the appellants' confessions were voluntary, the argument that their confessions were obtained in a manner that breached their s. 7 rights had "no traction" (para. 193).

[ 93 ] As a result, I will consider whether the confessions should be excluded under s. 24(2) based solely on the ss. 9, 10(a), and 10(b) Charter violations. As I detail below, I have concluded that Lambert's confession was not "obtained in a manner" that breached the Charter, but that Beaver's confession was "obtained in a manner" that breached the Charter, even though I conclude that admitting it would not bring the administration of justice into disrepute.

(2) The "Obtained in a Manner" Threshold Requirement

[ 94 ] There are two components to determining whether evidence must be excluded under s. 24(2). The first component — the threshold requirement — asks whether the evidence was "obtained in a manner" that infringed or denied a Charter right or freedom. If the threshold requirement is met, the second component requires balancing three lines of inquiry to assess whether the admission of the evidence would bring the administration of justice into disrepute.

(a) "Fresh Start" and the Threshold Requirement

[ 95 ] Section 24(2) of the Charter is engaged only when the accused first establishes that evidence was "obtained in a manner" that breached the Charter. The threshold requirement "insists that there be a nexus" between the Charter breach and the evidence, absent which "s. 24(2) has no application" (R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 37; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44).

[ 96 ] The general principles governing the application of the threshold requirement were helpfully summarized by Moldaver J. in R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 38:

Whether evidence was "obtained in a manner" that infringed an accused's rights under the Charter depends on the nature of the connection between the Charter violation and the evidence that was ultimately obtained. The courts have adopted a purposive approach to this inquiry. Establishing a strict causal link between the violation and the evidence is not required. Rather, courts must examine "the entire relationship between the Charter violation and the evidence" to determine whether there is a sufficient connection between them.

See also R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 72, per Laskin J.A.; Tim, at para. 78.

[ 97 ] A large body of appellate jurisprudence and academic commentary has recognized that evidence will not be "obtained in a manner" that breached the Charter when the police made a "fresh start" from an earlier Charter breach by severing any temporal, contextual, or causal connection between the Charter breach and the evidence obtained or by rendering any such connection remote or tenuous.

[ 98 ] The concept of a "fresh start" under s. 24(2) of the Charter was adopted from the common law "derived confessions rule", under which a court examines whether an otherwise voluntary confession is sufficiently connected to a prior involuntary confession to be tainted (Penney, Rondinelli and Stribopoulos, at p. 9-34; R. v. I. (L.R.) and T. (E.), [1993] 4 S.C.R. 504; R. v. R. (D.), [1994] 1 S.C.R. 881).

[ 99 ] In some cases, evidence will remain tainted by a Charter breach despite subsequent Charter compliance. For this reason"[c]are should be taken in using the 'fresh start' label to resolve 'obtained in a manner' inquiries" (Paciocco, Paciocco and Stuesser, at p. 485). Whether evidence was "obtained in a manner" that breached the Charter is ultimately a case-specific factual inquiry that requires "examin[ing] 'the entire relationship between the Charter violation and the evidence'" (Mack, at para. 38).

(b) Cases Illustrating the "Fresh Start" Concept

[ 100 ] In Wittwer, Fish J. for this Court accepted that, in principle, the police can make a "fresh start" after a Charter violation, even though he found no "fresh start" on the facts. The accused had made two incriminating statements to the police that were inadmissible because they were made contrary to s. 10(b) of the Charter. Subsequent to these admissions, the police attempted to make a fresh start: the police brought in a new officer, who re-advised the accused of his right to counsel and went through the standard caution. The accused again waived his right to counsel. Fish J. held that the second statement was "tainted" by the initial Charter breach because any attempt at a fresh start failed to overcome the influence of the first statement on the accused's willingness to speak to the police (R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at paras. 20-22).

[ 101 ] By contrast, in Simon the Ontario Court of Appeal found that the police did make a "fresh start". In that case, the police had placed the accused under surveillance while investigating sexual assaults and arrested him for being in possession of a stolen van. They advised him of his right to counsel and he waived it. Shortly after, the police confronted him about the sexual assaults and obtained a confession. The Court of Appeal found no causal connection between the Charter breach and the evidence because the accused's decision to confess was made independently of his arrest for possession of the stolen van.

[ 102 ] These principles apply to any form of evidence that the police obtain following a Charter violation; they are not limited either to successive statements or to s. 10(b) Charter violations. Although many "fresh start" cases have involved successive statements to persons in authority (see, for example, R. v. Plaha (2004), 189 O.A.C. 376; R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721; R. v. McSweeney, 2020 ONCA 2, 451 C.R.R. (2d) 357; R. v. Hamilton, 2017 ONCA 179, 347 C.C.C. (3d) 19; R. v. Strachan, [1988] 2 S.C.R. 980), these principles are not exhaustive.

(c) Potential Indicators of a "Fresh Start"

[ 103 ] When undertaking the case-specific factual inquiry into whether the police effected a "fresh start", some potentially illustrative indicators include:

• Whether the police informed the accused of the Charter breach and dispelled its effect with appropriate language (R. (D.), at p. 882). What constitutes appropriate language will vary with the circumstances of the case. In some cases, it may be sufficient to say"we're going to start over"; in others, more may be required.

• Whether the police cautioned the accused after the Charter breach but before the impugned evidence was obtained (Plaha, at para. 53; Hamilton, at paras. 58-59; R. v. Woods, 2008 ONCA 713, at para. 9). Ideally, this would involve both a primary caution ("You are not obliged to say anything unless you wish to do so, but anything you say may be given in evidence") and a secondary caution addressing the accused's right to silence.

• Whether the accused had the chance to consult counsel after the Charter breach but before the impugned evidence was obtained (Manchulenko, at para. 69; Woods, at paras. 5 and 9; R. v. Dawkins, 2018 ONSC 6394, at para. 62 );

• Whether the accused gave informed consent to the taking of the impugned evidence after the Charter breach (Simon, at para. 74);

• Whether and how different police officers interacted with the accused after the Charter breach but before the impugned evidence was obtained (see R. v. Lewis, 2007 ONCA 349, 86 O.R. (3d) 46, at para. 32; Woods, at para. 9; McSweeney, at para. 62; I. (L.R.) and T. (E.), at p. 526; Dawkins, at para. 62); and

• Whether the accused was released from detention after the Charter breach but before the impugned evidence was obtained.

(3) Application

(a) The Trial Judge's "Fresh Start" Analysis Contained Errors of Law

[ 104 ] Although the trial judge reviewed the case law on "fresh start" principles, I have concluded that he erred in law by failing to apply the correct legal test and by applying an incorrect legal principle (R. v. Chung, 2020 SCC 8, at paras. 13 and 18).

[ 105 ] First, the trial judge failed to apply the correct legal test by focussing solely on the conduct of the police that was Charter-compliant, without expressly analyzing whether or how that conduct severed the temporal, causal, or contextual connection between the earlier Charter breaches and the appellants' confessions.

[ 106 ] Second, and relatedly, the trial judge applied the wrong legal principle by repeatedly referring to the police as having "cured" the earlier Charter breaches (paras. 191, 206, 215, 239 and 253). It is unhelpful and inaccurate to describe the police as having "cured" the earlier Charter breaches. The Charter breaches still occurred and they remain a condemnation of the conduct of Sgt. Lines, Cst. Taylor, and Cst. Husband. Describing those breaches as "cured" undermines the remedial purpose of s. 24(2) of the Charter and is inconsistent with the established principle that "the breach itself must still be condemned" (Goldhart, at para. 40).

[ 107 ] Because the trial judge erred in law in his analysis of the threshold requirement, no deference is owed to his conclusion that the evidence was not "obtained in a manner" that breached the Charter (Mack, at para. 39; R. v. Keror, 2017 ABCA 273, 57 Alta. L.R. (6th) 268, at para. 35). The threshold inquiry must therefore be conducted afresh, while respecting the trial judge's findings of fact.

(b) Lambert's Confession Was Not "Obtained in a Manner" That Breached the Charter

[ 108 ] In my view, the police took several steps that collectively severed any contextual connection between the breach of Lambert's Charter rights arising from his unlawful detention and his confession. These steps also rendered any temporal connection with the Charter breaches remote. Finally, there was no causal connection between Lambert's unlawful detention and his confession.

[ 109 ] Specifically, Det. Demarino severed any contextual connection with Lambert's earlier unlawful detention under the supposed Medical Examiners Act. He did so by telling Lambert that they were going to "start from the very beginning", by advising him that this is a "very, very serious matter", by cautioning him on his right to silence, and by informing him that he was being investigated for and arrested for murder.

[ 110 ] In addition, any temporal connection between the Charter breaches arising from Lambert's unlawful detention and his confession after he had been arrested for murder was at best tenuous. Lambert's confession was provided about 12 hours after the Charter breaches, which the Court of Appeal found "weighs in favour of there being a 'fresh start'" (para. 17).

[ 111 ] There was also no causal connection between the Charter breaches arising from Lambert's unlawful detention and his confession after he was arrested for murder. Lambert provided no incriminating information because of the Charter breaches and he continued to protest his innocence. Lambert confessed only after Det. Demarino confronted him with inculpatory evidence obtained independently of the Charter breaches.

[ 112 ] By taking the steps described above, the police ensured that Lambert's confession was not "obtained in a manner" that breached the Charter. It is therefore unnecessary to consider the evaluative component of s. 24(2) for Lambert. Since Lambert's confession was admissible, I would dismiss his appeal.

(c) Beaver's Confession Was "Obtained in a Manner" That Breached the Charter

[ 113 ] The same cannot be said of Beaver's confession. Although, like Lambert, Beaver was at first unlawfully detained and then arrested for murder, unlike Lambert, Beaver declined the several opportunities he was given to consult counsel. As a result, in Beaver's case it cannot be said that an intervening act of counsel broke any connection between the earlier Charter breaches and his confession.

[ 114 ] Most importantly, however, Det. Hossack referred back to Cst. Husband's earlier caution during Beaver's unlawful detention, when Beaver had been told that he was being "investigatively detained" for "whatever's going on" in the townhouse where Bowers had been found dead. By telling Beaver that the arrest for murder was "no different" from when Cst. Husband had taken him into custody for "whatever's going on in there", Det. Hossack failed to sever the contextual connection between the Charter breaches arising from Beaver's unlawful detention and his confession.

[ 115 ] Beaver's confession was thus "obtained in a manner" that breached the Charter. It is therefore necessary to consider whether it should be excluded under s. 24(2) of the Charter.

(4) Beaver's Confession Should Not Be Excluded Under Section 24(2) of the Charter

[ 116 ] Whether the administration of justice would be brought into disrepute by admitting Beaver's confession involves examining the impact its admission would have on public confidence in the administration of justice over the long term, based on a balancing of the three lines of inquiry described in Grant, at paras. 71-86: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused's Charter-protected interests; and (3) society's interest in adjudication of the case on its merits.

[ 117 ] Section 24(2) of the Charter is not an automatic exclusionary rule precluding the admission of all unconstitutionally obtained evidence. Such evidence will only be excluded when the accused establishes that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute. While the word "disrepute" necessarily implies some element of public opinion, the inquiry under s. 24(2) is "objective" in the sense that it assesses the impact that admission would have on "the reasonable person, dispassionate and fully apprised of the circumstances of the case" and "the long-term interests of the justice system" (Grant, at para. 68).

[ 118 ] On appeal, a trial judge's findings of fact in applying s. 24(2) attract deference, but no deference is owed to the application of the law to the facts (Grant, at paras. 43 and 86; Lafrance, at para. 91). Deference is also not owed when the appellate court disagrees with the trial judge's weighing of the Grant factors (R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44; R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688, at paras. 33-36).

[ 119 ] As a result, no deference is owed to the trial judge's alternative analysis of the threshold requirement under s. 24(2). This Court must conduct the s. 24(2) analysis afresh, while respecting the trial judge's factual findings.

(a) The Seriousness of the Charter-Infringing State Conduct

[ 120 ] The first line of inquiry under s. 24(2) considers whether the Charter‑infringing state conduct is so serious that the court needs to dissociate itself from it. This inquiry requires the court to situate the Charter-infringing conduct on a scale of culpability. At one end of the scale is conduct that reflects a deliberate or reckless disregard for Charter rights, which demands a stronger response. At the other end is conduct that amounts to a mere technical breach (Grant, at para. 74).

[ 121 ] The breaches of Beaver's ss. 9, 10(a), and 10(b) Charter rights arising from his unlawful detention were serious. Sgt. Lines directed Beaver's detention under non‑existent legislation, the Medical Examiners Act. This involved a reckless disregard for Beaver's Charter rights and a significant departure from Charter standards. The resulting breaches deprived Beaver of his liberty and his right to know the reasons for his detention and to have recourse to counsel for about two hours.

[ 122 ] The first line of inquiry strongly favours exclusion of Beaver's confession.

(b) The Impact of the Breach on the Accused's Charter-Protected Interests

[ 123 ] The second line of inquiry under s. 24(2) considers the impact of the Charter breach on the accused's Charter-protected interests. This inquiry involves identifying the interests protected by the relevant Charter right and evaluating the extent to which the Charter breach "actually undermined" those interests (Grant, at para. 77; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 140).

[ 124 ] Three factors indicate that the Charter breaches arising from Beaver's unlawful detention had only minimal impact on his Charter-protected interests.

[ 125 ] First, and most importantly, Beaver's decision to confess was not caused by the Charter breaches arising from his unlawful detention. In appropriate cases, the lack of a causal connection between the breaches and the obtaining of the impugned evidence may mitigate the impact of the breach on the accused's Charter-protected interests (R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 69).

[ 126 ] Second, Beaver understood the basis for his interaction with the police. This diminished the impact the breach had on his s. 10(a) Charter right to be informed promptly of the reasons for his detention and his s. 10(b) Charter right to counsel. The trial judge found as fact that, during the drive to police headquarters, Beaver understood that the police were investigating Bowers' death (para. 89). Although Det. Hossack referred back to Cst. Husband's caution, Beaver understood that he was being arrested for murder.

[ 127 ] Finally, the impact of the breach on Beaver's "liberty from unjustified state interference" and "right to be left alone" protected under s. 9 of the Charter (Le, at paras. 152 and 155 (emphasis deleted)) was also attenuated because Beaver could not reasonably have expected to be left alone when police responded to a suspicious death in the house he shared with the deceased.

[ 128 ] In my view, because the Charter breaches arising from Beaver's unlawful detention had only minimal impact on his Charter-protected interests, the second line of inquiry favours neither exclusion nor inclusion of Beaver's confession.

(c) Society's Interest in an Adjudication of the Case on Its Merits

[ 129 ] The third line of inquiry under s. 24(2) considers societal concerns and asks whether the truth-seeking function of the criminal trial process would be better served by the admission or the exclusion of the evidence (Grant, at para. 79). Relevant factors under this inquiry include the reliability of the evidence (Grant, at para. 81) and the importance of the evidence to the Crown's case (Grant, at paras. 82-83).

[ 130 ] Here, the Charter breaches arising from Beaver's unlawful detention did not undermine the legality of Beaver's arrest for murder or the reliability of his confession. Nor is this a case where the Charter breaches effectively compelled Beaver to talk to the state after he had been arrested for murder.

[ 131 ] Excluding reliable evidence critical to the Crown's case, such as Beaver's confession, can also undermine the truth-seeking function of the justice system and render the trial unfair from the public's perspective, thus bringing the administration of justice into disrepute (see Grant, at paras. 82-83; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 34).

[ 132 ] The third line of inquiry therefore strongly supports admission of Beaver's confession.

(d) Final Balancing

[ 133 ] The final step in the s. 24(2) analysis involves weighing each line of inquiry to determine whether admitting the evidence would bring the administration of justice into disrepute. This balancing has a prospective function: it aims to ensure that evidence obtained through a Charter breach does not bring the administration of justice into disrepute over the long term.

[ 134 ] When undertaking this weighing exercise"it is the cumulative weight of the first two lines of inquiry that trial judges must consider and balance against the third line of inquiry" (Lafrance, at para. 90 (emphasis in original)). "[W]hen the two first lines, taken together, make a strong case for exclusion, this may outweigh a strong societal interest in admission on the merits; where the cumulative weight of the first two favours admission, or only marginally favours exclusion, the third inquiry may tip the balance in favour of admission" (Lafrance, at para. 90).

[ 135 ] In my view, the third line of inquiry is central to the s. 24(2) weighing exercise in this case. The first two lines of inquiry, taken together, do not make a strong case for excluding Beaver's confession. Only the seriousness of the Charter breaches strongly favours exclusion. The second line of inquiry does not favour exclusion. Admission of Beaver's reliable confession is strongly supported by the third line of inquiry.

[ 136 ] I would therefore admit Beaver's confession and confirm his conviction for manslaughter.

VI. Disposition

[ 137 ] I would dismiss both appeals.

Dissenting Reasons

The reasons of Karakatsanis, Côté, Brown and Martin JJ. were delivered by

Martin J. —

I. Overview

[ 138 ] On the morning of October 9, 2016, the appellants, Brian John Lambert and James Andrew Beaver, called 9-1-1 and reported arriving home from a night away to find their roommate's dead body. Shortly after arriving at the scene, police unlawfully detained the appellants pursuant to non-existent statutory authority. Approximately two hours later, a homicide detective, despite having been informed of the circumstances of the unlawful detention and the related Charter breaches, directed the arrest of the appellants for murder and authorized the interviewing detectives to continue questioning them. The appellants were each questioned by police for over 12 hours. They ultimately confessed.

[ 139 ] I part ways with the majority on two points. First, on whether it was lawful for the lead investigator, after learning of the circumstances of the appellants' unlawful detention, to immediately arrest them for murder and direct their continued questioning. I conclude that the information relied on to support the appellants' arrests did not constitute reasonable grounds. The arrests were therefore unlawful.

[ 140 ] Second, the test for inclusion under s. 24(2) is long established and well known. The focus is on the connection between the breach and the evidence obtained, with reference to temporal, contextual, and causal elements (R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Goldhart, [1996] 2 S.C.R. 463). The majority acknowledges this test and then accepts a "fresh start" doctrine that, in my respectful view, departs from the test in a manner that is unnecessary and contrary to a proper application of the Charter. I do not accept that the concept of a "fresh start" constitutes a distinct doctrine in Canadian law.

[ 141 ] The combination of these two conclusions is more than enough to allow the appeals, exclude all the evidence obtained in a manner that infringed the appellants' Charter rights, set aside the convictions, and order new trials. Thus, while I should not be taken as accepting the majority's voluntariness analysis, I will not address that issue.

II. Background

A. Facts

[ 142 ] Shortly before 10:00 a.m. on October 9, 2016, Mr. Lambert called 9‑1‑1 and reported finding his roommate and landlord, Sutton Raymond Bowers, lying face down in a puddle of blood inside their home. He told the 9‑1‑1 operator that he and Mr. Bowers had been having "altercations" all week. When asked what had happened, Mr. Lambert responded that Mr. Bowers had been drinking and angry and that he and Mr. Beaver had not seen what had happened to him.

[ 143 ] Police officers arrived at the scene within minutes. They observed the deceased lying at the base of "a fairly steep set of polished hardwood stairs" (2019 ABQB 125, 88 Alta. L.R. (6th) 337, at para. 7). An empty bottle of rum was left out on a table (para. 10). Mr. Lambert informed one officer that Mr. Bowers had been "drinking" (para. 6), and the officer observed that Mr. Bowers was found in "the position where someone fell down the stairs" (para. 11). There was no physical evidence of a fight.

[ 144 ] None of the officers at the scene believed they had grounds to arrest the appellants.

[ 145 ] Sgt. Lines was in charge at the scene. He directed two officers, Cst. Husband and Cst. Taylor, to detain the appellants under the Medical Examiners Act. He testified that he meant to refer to the Fatality Inquiries Act, R.S.A. 2000, c. F‑9, as he believed this legislation authorized police to detain individuals for investigative purposes. In fact, neither Act provides such authority.

[ 146 ] Cst. Husband took Mr. Beaver into custody. She told him that she had to "read [him] the legalities" and that she was "investigatively detaining [him] for, uh, whatever's going on in there, (laughing)" (A.R., vol. III, at p. 28). She testified that she did not know what Mr. Beaver was under investigation for.

[ 147 ] Cst. Taylor was in charge of Mr. Lambert's detention. He read Mr. Lambert his Charter warning and caution, informing him that he was detained under the Medical Examiners Act. Mr. Lambert replied that he understood and wished to speak to a lawyer.

[ 148 ] Cst. Taylor then transported Mr. Lambert to the station in his police vehicle. During the car ride, he asked Mr. Lambert about what had happened. Mr. Lambert described his version of what had occurred the previous night between himself, Mr. Beaver, and the deceased. He noted that a male he described as "the old guy" had told them to get out (A.R., vol. I, at p. 214). Cst. Taylor later admitted at trial that he had "messed up" and should not have questioned Mr. Lambert without first providing him with an opportunity to speak to counsel.

[ 149 ] Det. Vermette was assigned as the primary investigator on the file. At 10:36 a.m., he received a phone call from S/Sgt. Chisholm calling out the homicide unit to investigate a death. During this call, S/Sgt. Chisholm indicated that he had spoken to the medical investigator and a man had been found dead. S/Sgt. Chisholm communicated that the death was being treated as suspicious.

[ 150 ] Csts. Husband and Taylor and the appellants arrived at police headquarters at about 11:15 a.m. The appellants were both searched and Mr. Lambert was given an opportunity to speak with a lawyer. They were placed in separate holding rooms.

[ 151 ] At 11:39 a.m., Det. Vermette spoke with Csts. Husband and Taylor. They informed him that the appellants had been "Chartered and cautioned" and provided with an opportunity to speak with legal counsel (A.R., vol. I, at p. 210). Det. Vermette was "assuming" that they had been arrested for murder at that time (para. 162).

[ 152 ] Det. Vermette testified that when he met with Csts. Husband and Taylor, he did not have reasonable grounds to arrest the appellants.

[ 153 ] Det. Vermette then reviewed the material in the police file. The material included an "Event Information", which provided a summary of the case based on the 9‑1‑1 call and some remarks inputted from officers, and an "Event Chronology", which essentially repeated the content of the Event Information.

[ 154 ] The Event Information indicated that the 9-1-1 call was categorized as "medical – sudden death" (A.R., vol. III, at p. 321). It identified the townhouse as a location of interest, or "LOI", because Mr. Lambert had previously made a complaint about his landlord, Mr. Bowers. It also indicated that Mr. Lambert had told police that "there ha[d] been 'altercations all week' with [the] resident BOWERS" (p. 321).

[ 155 ] Mr. Lambert's complaint about Mr. Bowers was further detailed in a Police Information Management System ("PIMS") report, which also formed part of the file. The PIMS report indicated that three days before the 9-1-1 call, Mr. Lambert had reported to police that Mr. Bowers had been drinking and had become angry with Mr. Lambert and Mr. Beaver, and had told them to leave the townhouse; Mr. Bowers had apparently kicked Mr. Beaver's mattress, causing Mr. Lambert and Mr. Beaver to leave their home for the night. The report indicated that Mr. Bowers was the aggressor and neither Mr. Beaver nor Mr. Lambert were injured.

[ 156 ] Shortly after beginning Mr. Lambert's interview, Det. Demarino learned of the circumstances of the appellants' detention from Cst. Husband. Recognizing the serious legal issues engaged, he brought his concerns to Det. Vermette. Det. Vermette then instructed the interviewing detectives to arrest the appellants for murder.

[ 157 ] Det. Vermette took no notes of this interaction with Det. Demarino, or others, and did not record the grounds on which he based his decision to direct the appellants' arrests.

[ 158 ] Det. Demarino returned to Mr. Lambert's interview room and arrested him for murder. He provided Mr. Lambert with another opportunity to consult counsel and cautioned him on his right to silence. Cst. Arns photographed and swabbed Mr. Lambert. She told him"right now it's just you're one of the witnesses. So I just have to take your photo and take some swabs. So we'll just . . . get the paperwork done and then you'll be on your way" (A.R., vol. II, at p. 26).

[ 159 ] In a separate room, Det. Hossack arrested Mr. Beaver for murder and informed him of his right to counsel. She emphasized that nothing had changed from when he was previously cautioned — she was simply reading the caution to "start off fresh" (A.R., vol. III, at p. 50). When Mr. Beaver expressed surprise about being arrested for murder, she reassured him that this did not necessarily mean he was going to be charged: "Right now you're under arrest for murder but that doesn't necessarily mean you're going to be charged" (pp. 51-52).

[ 160 ] Mr. Beaver waived his right to counsel. For the first 12 hours of the interview, he maintained that he could not remember what had happened as he had been drinking the previous night. At around 1:00 a.m., after Det. Hossack started taking a more aggressive approach, he began adopting the incriminating evidence and eventually confessed.

B. Lower Court Decisions

[ 161 ] The trial judge denied the appellants' application to exclude the evidence as a remedy for the Charter breaches. He concluded that the appellants' detention at the scene was unlawful because there was no "clear nexus" between the appellants and Mr. Bowers' death; nor was it clear that Mr. Bowers had even been murdered at that time (paras. 150-51).

[ 162 ] Although he found it unnecessary to analyze whether to exclude the evidence under s. 24(2) of the Charter because the arrests constituted a "fresh start" that "cured" the breaches (at para. 215), the judge conducted an alternative analysis of the factors as outlined in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[ 163 ] The Court of Appeal of Alberta unanimously dismissed the appeal (2020 ABCA 203, 4 Alta. L.R. (7th) 301). The court agreed that there were reasonable grounds for the arrests, opining that Det. Vermette's decision to arrest was "a practical and common-sense decision" (para. 37). The court agreed that the arrests constituted a "fresh start" which broke the connection between the Charter breaches and the evidence.

III. Analysis

[ 164 ] My analysis will address three issues. First, were the appellants' arrests unlawful? Second, was the evidence provided in their statements "obtained in a manner" that infringed their Charter rights? Third, if so, should the evidence be excluded under s. 24(2)?

[ 165 ] I have no hesitation in answering each of these questions in the affirmative.

A. The Appellants' Arrests Were Unlawful

[ 166 ] It is well established that police must have reasonable grounds to believe an individual committed or was about to commit an indictable offence in order to lawfully arrest them without prior judicial authorization. The reasonable belief must relate to two elements: whether an offence has been committed, and whether the person to be arrested committed the offence. Both elements require particularized evidence that goes beyond mere suspicion (Storrey, at pp. 249-50).

[ 167 ] Reasonable grounds is a high threshold that is met at the point where a credibly based probability replaces suspicion (Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 167; Storrey, at pp. 249-50). "Mere suspicion" may be probable from the officer's standpoint, but it "falls short of the probability requirement and hence the credible based probability threshold" (Chehil, at para. 27).

[ 168 ] The need to establish reasonable grounds before effecting an arrest is not a mere procedural requirement — it is a constitutional imperative. An arrest is a key investigative step on which much hinges, both for the police and for the arrestee. It triggers intrusive police powers relating to detention, search, and questioning.

[ 169 ] It is worth setting out at some length Det. Vermette's testimony describing the basis on which he asserted that there were reasonable grounds to direct the appellants' arrests. He explained his grounds as follows:

. . . when I get called out, it's called out on a suspicious death. The -- the -- there is -- it is clear that there's a conversation between Staff Sergeant Chisholm and the medical examiner. That is communicated to me as suspicious death. I know that someone is deceased at the scene, and I start getting relationships based on that. I can tell you that Brian Lambert is the caller. He identifies himself as the roommate. And without getting into the specifics, I know the medical examiner has -- has flagged this as suspicious.

I know that someone is deceased at the scene, and I start getting relationships based on that. I can tell you that Brian Lambert is the caller. He identifies himself as the roommate. And without getting into the specifics, I know the medical examiner has -- has flagged this as suspicious.

. . . we talk about a prior altercation with roommates. So what I am looking at here, if I look at the totality, I look at the environment, I look at the violence, I look at the anger, I look at some of the history and I'm looking, you know, two roommates and a dead guy. And that combined with the fact that the medical examiner has deemed this suspicious and called us in, I'm looking at motive. I'm looking at opportunity. And I'm compiling that information.

Now, when I look at the PIMS report and then I look at that as corroborating some of the information that I saw, I start looking at motive. I start looking at motivation. And, again, in culmination with what I know. . . .

(A.R., vol. I, at pp. 226-27)

[ 170 ] The grounds relied on by Det. Vermette to direct the appellants' arrests do not come close to providing the particularized evidence required to ground a reasonable belief based on credible and compelling evidence that the appellants killed Mr. Bowers.

(1) There Were No Notes to Review on the Claimed Grounds for Arrest

[ 171 ] Det. Vermette did not take notes detailing the actual and individual information he claimed to rely on to support his decision-making at the time of the arrest. There is therefore no contemporaneous record of the information he actually relied on or his reasoning process.

[ 172 ] It is well recognized that police notes are crucial to the court's ability to meaningfully review the exercise of police power without prior judicial authorization, including the arrest power (see Wood v. Schaeffer, 2013 SCC 71, [2013] 3 S.C.R. 1053, at para. 68; R. v. Lotfy, 2017 BCCA 418, 357 C.C.C. (3d) 516, at para. 54; R. v. Faulkner, 2020 ABQB 231, at para. 43 ; R. v. Abdulatif, 2017 ONSC 2089, at paras. 56-57 ; R. v. Mascoe, 2017 ONSC 4208, 350 C.C.C. (3d) 208, at para. 12; United States of America v. Sheppard, 2013 QCCS 5260, 295 C.R.R. (2d) 113, at para. 38; R. v. Davidoff, 2013 ABQB 244, 560 A.R. 252, at para. 129 ; R. v. Odgers, 2009 ONCJ 287, at para. 31 ; R. v. Fisher, 2005).

[ 173 ] The absence of notes is a factor to be considered in deciding whether to accept the witness's testimony (R. v. Lotfy, 2017 BCCA 418, 357 C.C.C. (3d) 516, at para. 54; see R. v. Faulkner, 2020 ABQB 231, at para. 43 ). The absence of contemporaneous notes makes it difficult to assess whether the grounds given by the officer in court actually represent what the officer knew when the decision was made.

[ 174 ] In reviewing reasonable grounds, the absence of notes may inform the court's assessment of the officer's credibility, which is relevant to both the subjective and the objective elements of the test (see R. v. Feeney, [1997] 2 S.C.R. 13, at para. 24).

[ 175 ] It is unnecessary to decide whether the judge's acceptance of the officer's subjective belief was tainted by palpable and overriding error because it is clear that the asserted grounds, even if accepted as accurate, fall well short of the objective requirements.

(2) The Totality of the Information Relied on Is Insufficient to Meet the Reasonable Grounds Standard

[ 176 ] The grounds forming the basis on which Det. Vermette directed the appellants' arrests in their totality do not rise to the level of a credibly based probability required to meet the reasonable grounds standard.

[ 177 ] Det. Vermette admitted that when he spoke to Csts. Taylor and Husband at 11:39 a.m. — after his conversation with S/Sgt. Chisholm but before reviewing the materials in the police file — he did not have reasonable grounds to arrest the appellants. The only additional information he had after reviewing the file that he did not have at 11:39 a.m. was (1) that Mr. Bowers and the appellants had previously had "altercations" and (2) that the deceased had previously threatened to evict Mr. Beaver and Mr. Lambert.

[ 178 ] All of the information taken together does not amount to reasonable grounds. In addition, the information in the police reports could not have made up the difference needed to ground a credibly based probability that the appellants killed Mr. Bowers.

[ 179 ] Further, the grounds asserted by Det. Vermette and accepted by the lower courts fail to engage with the exculpatory evidence pointing away from Mr. Bowers' death being a homicide, and from the appellants' being responsible.

[ 180 ] With respect to the offence, information at the scene suggested that Mr. Bowers may have died in an intoxicated fall. This is reflected in the trial judge's finding that, at the time of the appellants' detention at the scene, the officers had only a "suspicion" that a crime had occurred.

[ 181 ] With respect to the individuals, the appellants' connection to the death was tenuous. There was no information about the time of death suggesting that it had occurred when the appellants would have been present. There was no physical evidence implying that the death resulted from an assault.

[ 182 ] Further, in all of the history in the police file, the deceased was the aggressor in the altercations. He was the only one with a history of violence. Neither of the accused had a criminal record.

[ 183 ] Moreover, there was nothing at all to suggest Mr. Beaver was involved in any of the prior incidents other than the argument the evening before the 9-1-1 call, which was already known to officers at the scene and did not ground their suspicion that a crime had even been committed.

(3) The Timing of the Arrests Suggests the Decision Was Made for Expediency

[ 184 ] The timing of Det. Vermette's direction to arrest the appellants also calls into question the reasonableness of the decision. On Det. Vermette's own evidence, he made the decision to arrest the appellants within 2 minutes of learning that they had not yet been arrested — an action, I would observe, that had its genesis in the desire to preserve the existing interviews.

[ 185 ] The circumstances of the appellants' unlawful detention and transport should have been a cause for concern not only because of the Charter breaches that resulted, but to prompt questioning into whether the prior detention had not already irreparably tainted any questioning at the police station.

(4) The Evidence Relied on for the Asserted Grounds Did Not Support a Reasonable Belief

[ 186 ] Finally, the individual pillars of evidence relied on for the asserted grounds do not support the officer's reasoning, either standing alone or in combination.

[ 187 ] I have already explained why the information relied on to support the appellants' "motive" and "opportunity" is not compelling. In addition, much was made in Det. Vermette's testimony of the fact that there had been prior "altercations" involving the occupants of the home. But the totality of the context indicates that the deceased was the aggressor in the prior incidents and the appellants were the victims of his behaviour, not the perpetrators of violence.

[ 188 ] For an investigator to rely on the "suspicious" nature of a death in support of reasonable grounds, this label must hold up to scrutiny on the basis of particularized, objectively verifiable information. There was nothing about the scene of death that could reasonably lead to the conclusion that the death was a homicide, rather than an accidental fall, other than a general indication of "suspicious" from the medical examiner's office.

[ 189 ] The information that Det. Vermette explained formed the basis of his decision to arrest the appellants may have given rise to a reasonable suspicion, but to accept that it formed the basis of reasonable grounds to believe that they killed the deceased would erode the reasonable grounds standard.

B. The Evidence Was "Obtained in a Manner" That Infringed the Appellants' Charter Rights

[ 190 ] The Crown conceded, and the trial judge found, that the police breached the appellants' ss. 9, 10(a) and 10(b) Charter rights. The trial judge also held that the arrests and the searches subsequent to the arrests were lawful. Given my conclusion that the arrests were unlawful, the breaches extend beyond those conceded by the Crown.

[ 191 ] In determining whether evidence was "obtained in a manner" that breaches the Charter, I agree with my colleague that courts should examine the entire relationship between the evidence and the Charter breach to determine the strength of the connection, with reference to temporal, contextual, and causal elements. I depart, however, from my colleague's endorsement of the "fresh start" doctrine as a distinct concept in Canadian law.

[ 192 ] The trial judge and Court of Appeal departed from this holistic assessment. They defined a "fresh start" as an attempt by police to "cure" an earlier breach so that any subsequently discovered evidence would be found to be free of any taint — i.e., not "obtained in a manner" that violated the Charter. Although my colleague disavows the trial judge's use of the word "cure", his endorsement of the "fresh start" doctrine departs in two important respects from the established test under s. 24(2).

[ 193 ] The arrests, even if they were lawful, do not constitute a "fresh start" that shields subsequent actions by the police from Charter scrutiny.

[ 194 ] I do not think this vague notion of a "fresh start" is already part of our law and I am convinced it should not be so recognized. The idea of a "fresh start" is unnecessary because the established holistic approach is more than adequate to the task. It asks courts to examine the entirety of the connection between the breach and the evidence, with reference to temporal, contextual, and causal links. It is flexible enough to accommodate the facts my colleague relies on in finding that Lambert's confession was not "obtained in a manner" that infringed his rights.

[ 195 ] I disagree with my colleague's contention that this Court has accepted that, in principle, the police can make a "fresh start" after a Charter violation (para. 100). I would not read Wittwer as endorsing this doctrine. In Wittwer, Fish J. was engaged in a holistic assessment of whether there was a sufficient connection between the Charter breach and the evidence, concluding that there was. He was not describing a categorical exception to the holistic analysis.

[ 196 ] Wittwer concerned the admissibility of an incriminating statement that the police obtained from the accused in a manner that violated his right to counsel. Another officer made a new attempt to obtain a statement from the accused, re-advising him of his rights and obtaining a waiver. Fish J. held that the second statement was tainted by the first statement because the earlier rights violation continued to exert a causal influence. Fish J. mentioned the possibility of a "fresh start" but did not endorse it as a distinct doctrine.

[ 197 ] Some have sought to elevate this ambiguous wording as endorsing the view that "fresh starts" may be permissible in appropriate cases, even if the one in Wittwer was found not to be (see R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, at para. 55; R. v. Plaha (2004), 189 O.A.C. 376, at para. 53; R. v. Simon, 2008 ONCA 578, 269 O.A.C. 259, at para. 57). But such a reading of Wittwer adds nothing to the established holistic approach.

[ 198 ] The concept of a "permissible fresh start" detracts from the broad and generous approach that this Court has adopted for the "obtained in a manner" requirement of s. 24 of the Charter. Regardless of whether evidence was obtained after a Charter breach, courts should examine the entirety of the connection between the breach and the evidence, with reference to temporal, contextual, and causal elements, without the use of a distinct "fresh start" doctrine.

[ 199 ] This is precisely the approach adopted by Fish J. in Wittwer (at para. 21) and is the only legal test endorsed by this Court. Although arguably, Fish J. refers to a "fresh start", he then unequivocally states that in determining whether evidence was "obtained in a manner" that violated the Charter, courts must examine the "entire relationship between the breach and the evidence". A "fresh start" is not a categorical threshold that, once met, ends the inquiry but rather a factor to be considered as part of the holistic examination.

[ 200 ] As with all remedial provisions, s. 24 of the Charter must be given a large and liberal interpretation consistent with its purpose. Taking a broad and generous approach to the "obtained in a manner" requirement is important, as it is the gateway to the focus of s. 24(2): whether the admission of evidence would bring the administration of justice into disrepute.

[ 201 ] Respectfully, the approach my colleague has taken to the "fresh start" doctrine leads to a replication of the trial judge's error. Though he rejects the trial judge's conclusion that police can "cure" Charter breaches, the majority's endorsement of a "fresh start" doctrine may have similar effects.

[ 202 ] By shifting the focus to the eventual Charter-compliant conduct, the "fresh start" doctrine distracts from the remedial nature of s. 24(2) and allows police to insulate their conduct from review. It also risks creating a perverse incentive — if police can make a "fresh start" simply by re-advising the accused of their rights, there may be less incentive to comply with Charter requirements from the outset.

[ 203 ] After reviewing the entire course of events, I conclude that the evidence was "obtained in a manner" that infringed the appellants' Charter rights. Because the trial judge erred in (1) concluding that there were reasonable grounds to arrest the appellants and (2) relying on the concept of a "fresh start", his conclusion that the evidence was not "obtained in a manner" within the meaning of s. 24(2) of the Charter is not owed deference.

C. Admission of the Evidence Would Bring the Administration of Justice Into Disrepute

[ 204 ] The final question to be addressed is whether, having regard to all the circumstances, the admission of that evidence would bring the administration of justice into disrepute. I have no doubt that it would.

[ 205 ] Given my conclusion that the trial judge erred in his analysis on whether there were reasonable grounds for arrest, his alternative analysis under s. 24(2) is not owed deference (R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 139; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 54).

(1) Seriousness of the Charter-Infringing State Conduct

[ 206 ] The Charter-infringing state conduct for which the appellants seek a remedy includes:

(i) their unlawful detention, transport, and search pursuant to a non-existent police power in non-existent legislation, resulting in breaches of ss. 7, 8, 9, 10(a) and 10(b);

(ii) Cst. Taylor's failure to hold off on questioning Mr. Lambert, violating his rights under ss. 7 and 10(b); and

(iii) their arrest for murder absent reasonable grounds, resulting in further arbitrary detention contrary to s. 9.

[ 207 ] The police conduct in this case can only be described as a string of extremely serious violations of well-established Charter principles. In no circumstances were the officers acting in areas of law that were unsettled or uncertain.

[ 208 ] The absence of bad faith conduct in breaching Charter rights does not mean that the breaches are not "severe" or at the serious end of the spectrum in the analysis under s. 24(2). Circumstances involving reckless disregard for Charter rights are still at the serious end of the spectrum (R. v. Kokesch, [1990] 3 S.C.R. 3, at p. 22; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 70).

[ 209 ] The concept of "good faith" has a particular legal meaning in the context of the s. 24(2) analysis. For conduct to be described as "good faith", the police must have conducted themselves in a manner that was objectively reasonable in all the circumstances. An honest belief that falls short of an objectively reasonable belief is not good faith (Paterson, at para. 44; R. v. Genest, [1989] 1 S.C.R. 59, at p. 87).

[ 210 ] The trial judge erred in failing to apply these principles to the actions of the officers in this case in the alternative analysis he conducted under s. 24(2).

[ 211 ] The trial judge found that in directing the appellants' arrests under the Medical Examiners Act, Sgt. Lines "was looking for a way to maintain control over Mr. Beaver and Mr. Lambert, but was unable to identify the appropriate legislation quickly enough given the time pressure created by the emergency" (at para. 242). I cannot agree that this finding establishes the officers were acting in good faith.

[ 212 ] As for Cst. Taylor's decision to start questioning Mr. Lambert in the car before having provided him with an opportunity to speak to counsel, the judge found that the questioning was not serious because Cst. Taylor's question was "innocuous" on its face (para. 244). The trial judge stated:

This Court cannot find Cst. Taylor's question completely blameless. Although innocent on its face, and likely intended not to illicit incriminating information, Cst. Taylor took the risk that Mr. Lambert would start talking about the death of Mr. Bowers as though Cst. Taylor had asked him specifically about the death.

[ 213 ] Respectfully, it is not possible to conclude that the failure to hold off on questioning Mr. Lambert was a "good faith" or non-serious error. In citing para. 75 of Grant for authority that good faith can be established by showing that a less serious breach was inadvertent (at para. 244), the trial judge failed to apply the correct standard.

[ 214 ] The legal implication of the trial judge's factual findings is that the s. 10(b) breach during the transportation of Mr. Lambert was serious and favoured exclusion of the evidence. Section 10(b) of the Charter requires that as soon as a detainee invokes the right to counsel, the police must hold off questioning until the accused has had a reasonable opportunity to speak to counsel (R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460; R. v. Prosper, [1994] 3 S.C.R. 236; R. v. Ross, [1989] 1 S.C.R. 3). Mr. Lambert had unambiguously invoked his right to counsel and immediately asked to speak to a lawyer. Yet Cst. Taylor questioned him without providing that opportunity.

[ 215 ] There was no uncertainty in the law, nor was there any sense of urgency that might have required the police to begin questioning Mr. Lambert before they could facilitate a call with counsel. The failure to hold off on questioning Mr. Lambert when he had invoked his right to counsel was a serious violation of his s. 10(b) Charter rights.

[ 216 ] Finally, the judge concluded that if he was wrong in finding there were reasonable grounds to arrest the appellants, Det. Vermette's conduct would not be serious. He relied on the fact that Det. Vermette "subjectively believed that he had reasonable and probable grounds to arrest the appellants" (para. 243).

[ 217 ] The decision to arrest the appellants constituted a serious violation of their Charter rights. A subjective belief in reasonable grounds does not excuse the decision to arrest in order to justify the exercise of Charter-infringing state power (Paterson, at para. 44).

[ 218 ] Contrary to the trial judge's conclusion, the officers were not acting in the type of "fluid situation" that might support a finding that there was insufficient time to undertake a complete analysis of the grounds for arrest. Det. Vermette had the time and the ability to take notes, review the file more carefully, and ask the officers what information had been gathered before directing the arrests.

[ 219 ] While the officer was right to be concerned with protecting the appellants' Charter rights when he was presented with the circumstances of their unlawful detention, there was an equally viable option available to him that would not have involved a further Charter breach: he could have ended the interviews and released the appellants. Instead, he made a precipitous arrest that extended the deprivation of liberty.

[ 220 ] While I find it unnecessary to determine whether it impacted the voluntariness of the statements, the post-arrest conduct of the police also indicates a lack of attention to ensuring the appellants' Charter rights were protected after the arrests. Cst. Arns told Mr. Lambert that he was "just one of the witnesses" and would "be on [his] way", even after he had been arrested for murder. And Det. Hossack told Mr. Beaver that nothing had changed from his earlier unlawful detention and cautioned him in a way that further minimized the seriousness of his situation.

[ 221 ] In sum, the state conduct in this case involved decisions by three separate officers to undertake actions in violation of well-established Charter standards, placing investigative expediency above the Charter rights of the appellants. The state conduct was, on the whole, at the serious end of the spectrum.

(2) Impact on the Appellants' Charter-Protected Interests

[ 222 ] Because of the Charter breaches, the appellants were deprived of their liberty for several hours without a lawful basis and without being informed of the reason, preventing them from being able to seek legal advice based on an accurate understanding of their situation.

[ 223 ] In the alternative analysis the trial judge conducted under s. 24(2), he failed to consider the impact of the appellants' inability to receive legal advice based on an informed understanding of their circumstances.

[ 224 ] I have significant concerns with these aspects of the trial judge's analysis. It does not follow from knowledge that the police are investigating a death that the appellants should have understood the significance of their legal jeopardy. The appellants were told that they were being held under a non-existent statutory authority, for "whatever's going on in there". Being told one is detained "for whatever's going on in there" does not inform the individual being detained that they may be a murder suspect.

[ 225 ] It is speculative to conclude that the appellants would have chosen to speak to police and provide the exculpatory narrative had they been properly notified of the circumstances of their jeopardy. They may have sought legal advice and been counselled not to speak to police at all, as opposed to providing the potentially self-incriminating accounts they gave during their initial contacts with police.

[ 226 ] The trial judge also commented on the impact of Cst. Taylor's breach of the duty to hold off on Mr. Lambert, determining that he "provided his explanation to Cst. Taylor spontaneously following Cst. Taylor's question" (para. 248). Whether what Mr. Lambert said was spontaneous or prompted is beside the point: the relevant question is whether the officer should have known — given that Mr. Lambert had clearly invoked his right to counsel — that the questioning was inappropriate.

[ 227 ] The Crown argues that the impact of the unlawful arrests is lessened by the fact that the police found out shortly after the arrests, at about 12:35 p.m., that Mr. Bowers had sent incriminating Facebook messages to a friend. This, it says, confirmed Det. Vermette's decision to arrest. There are several problems with this argument. First, this post-arrest information cannot be used to justify the arrests. Second, the key question is what the impact of the Charter breaches was on the accused's Charter-protected interests at the time of the arrest.

[ 228 ] I am doubtful that this information, which again corroborated an uncontroversial point and which pointed to the deceased — not the appellants — as the aggressor, would have made up the difference needed to ground a credibly based probability that the appellants killed Mr. Bowers.

[ 229 ] The comments by police after the appellants' arrests telling them that they were mere witnesses and the arrests were merely procedural further exacerbated the impact of the breaches on the appellants' rights. They suggested to the appellants that this was not as serious a situation as it was.

[ 230 ] This factor also weighs in favour of exclusion.

(3) Society's Interest in the Adjudication of the Case on Its Merits

[ 231 ] Society's interests in the adjudication of the case on its merits favours admission of the evidence, but not overwhelmingly so. It is not clear that the Crown's case would be "gutted" if the statements were excluded. The Crown may be able to proceed to trial without the statements. The Facebook messages also provide some evidence of a motive.

. . . I underscore that we should never lose sight of the fact that even a person accused of the most heinous crimes, and no matter the likelihood that he or she actually committed those crimes, is entitled to the full protection of the Charter. Short-term public clamour for punishment of those perceived to be guilty must never be allowed to trump the enduring public interest in a justice system that is fair and, above all, just.

(R. v. Washington, 2007 BCCA 540, 248 B.C.A.C. 65, at para. 68)

(4) Balancing

[ 232 ] On balance, I conclude that admission of the evidence in the proceedings would bring the administration of justice into disrepute and therefore the evidence must be excluded under s. 24(2) of the Charter. The circumstances of the accused's detention and questioning led to multiple officers breaching multiple Charter rights over the course of several hours.

IV. Conclusion

[ 233 ] I would therefore allow the appeals, exclude all the evidence obtained in a manner that infringed the appellants' Charter rights, set aside the appellants' convictions, and order new trials. Whether this means the appellants face no further prosecution is a matter for the Crown and the trial courts to decide.

Appeals dismissed, Karakatsanis, Côté, Brown and Martin JJ. dissenting.

Solicitors for the appellant James Andrew Beaver: McKay Ferg, Calgary; Sitar & Milczarek, Calgary.

Solicitors for the appellant Brian John Lambert: Ruttan Bates, Calgary.

Solicitor for the respondent: Alberta Crown Prosecution Service — Appeals and Specialized Prosecutions Office, Calgary.

Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Crown Law Office — Criminal, Toronto.

Solicitors for the intervener the Canadian Civil Liberties Association: Addario Law Group, Toronto.