COURT FILE NO.: CRIM 1117/11

DATE: 20130222

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

C. Coughlin, for the Crown

• and -

MARICANNE KING

J. Struthers and M. Alves, for the Defendant

Defendant

V O I R D I R E R U L I N G

O’Connor J.

1During a confrontation at a house party in Brampton over the evening of October 31, and the early morning hours of November 1, 2009, Franklin Thomas sustained a large gash on his right arm. Although he was rushed to hospital by ambulance, he lost a significant amount of blood and succumbed to his wound about 12 hours later.

2A hasty initial investigation by Peel Region Police Service (PRPS) Criminal Investigation Division (CID) that night led to the arrest and interview of Maricanne King, also known as Debbie King, who was Mr Thomas’ common law spouse.

3In 2009 Ms King was 36 years old. She, Mr Thomas and their children from different relationships, had been living together in Brampton for about five and a half years. She is the mother of three girls, who were aged 16, 12 and 9 in 2009. Mr Thomas had two sons, aged 21 and 18. She worked as a pre-cook for Compass Group at Sheridan College, preparing and serving food at the cafeteria. Mr Thomas was a truck driver for the City of Toronto.

4Ms King was taken into custody at 7.26 am on November 1, while Mr Thomas was still alive. She was advised by Constable Lloyd Dixon of the PRPS that she would be charged (not that she was charged) with aggravated assault, and “…I’m gonna caution you um, for, basically for murder, okay?...” She was asked if she understood, and she answered “yeah”. I am not sure she could have understood what the officer meant about being cautioned for murder because I do not know what he meant and he could not explain when asked. The procedure is not one with which I am familiar. No one had died; thus, no caution for a homicide was warranted.

5She was questioned intermittently by the officer for the following 15 & 1/2 hours. Mr Thomas died at 2:42 pm that day. However, Ms. King was not told of his passing until 9:22 pm. She was released in the company of her mother at 9:50 without being charged with any offence.

6Const. Dixon had been a police officer for four years at the time, although he had never investigated a homicide. He had no training in the interviewing or questioning of suspects. He was assisted and directed by a team of officers, listening outside the interview room, led by Sgt. Jeff Jensen.

7During the weeks following the death of Mr Thomas, the Peel Homicide Bureau continued the investigation, including locating and interviewing about 35 largely reluctant and uncooperative witnesses who had been at the party. Witnesses said that over the course of the lengthy party Mr Thomas had confronted Ms King several times with an accusation that she had been unfaithful to him. They also argued about his wishing to drive home despite his having consumed a large quantity of alcohol. He allegedly was also physical with her. He threatened to hit her with a wine bottle. She allegedly picked up a bottle, broke it and either slashed at him, catching his arm, or threw the bottle at him, causing the cut.

8As a result of the investigation, on November 25, 2009 Ms King was again arrested, but this time charged with manslaughter. She was lodged in an interview room and questioned for about 10 hours, from 1:25 pm until 11:46 pm.

9The Crown seeks a ruling that a portion of the statement made on November 1 was voluntarily given and the product of a willing choice by Ms King to speak to the police; therefore, it should be admitted into evidence at her trial.

10After a voir dire lasting most of six days, the Crown conceded that the portion of the November 1 interview that took place after the death of Mr Thomas and the whole of the November 25 interview cannot be proven to have been voluntarily given.

11The Crown’s concession was wisely taken. When a suspect’s jeopardy is significantly increased by a change in the circumstances that existed when she was initially detained and received legal advice, she must be told of the altered situation and given a further opportunity to consult with counsel; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at paras. 15, 51.

12In this case, the death of Mr Thomas undoubtedly increased Ms King’s jeopardy from a probable charge of aggravated assault to one of manslaughter. Yet, the officers did not advise her of the death for nearly seven hours. During the seven hours Const. Dixon continued intermittently questioning her. He said the reason his team decided to withhold this vital piece of information was:

…it’s still an investigation, and we needed to speak to her. We wanted the truth to come out and by speaking to her in a way that was, you know, where she was still calm more information would come out. The decision was made to tell her later on…

13This obvious denial of her right to further legal advice rendered inadmissible anything she said after the increased jeopardy became known to the officers.

14Similarly, the concession by the Crown that the November 25 statement could not be proven to have been voluntarily given was appropriate. I would not have allowed any part of it into evidence at trial. The entire interview was rife with violations of the rules governing the proper questioning of suspects, from offering the hope of an advantage (a lesser sentence) if she made an inculpatory statement to creating a fear of prejudice (a longer sentence) if she did not, and creating clearly oppressive conditions and circumstances.

15They ignored her several pleas that she was in physical pain. The questioner often shouted over her protestations of innocence, banging on the table in front of her, and interrupting her answers with loud, derisive comments that she was lying to him. She repeated 52 times to Const. Dixon that on the advice of her lawyer, she did not wish to say anything. She repeated 132 times that she had not done it, meaning she had not cut her spouse or thrown a bottle at him. The officer simply ignored all such comments and continued his harangue.

16Const. Dixon’s interrogation of Ms King clearly fit the criteria of an oppressive atmosphere set out by Iacobucci J. in R. v. Oickle, 2010 SCC 38, [2000] 2 S.C.R. 3, at paragraph 60, where he described conduct that created an oppressive atmosphere as including:

…excessively aggressive, intimidating questioning for a prolonged period of time.

17The police also used the fabricated evidence ruse to an extent greater than it should be permitted: advising her numerous times that they had more than enough evidence of her guilt and that the only needed to know why she did it. It appears they had little or no reliable or substantive evidence of her guilt.

The Contested Portion of the November 1 Statement

The Crown Position

18The Crown argues that the police had the necessary reasonable and probable grounds to arrest Ms King in the early morning hours of November, 2009. Further, they say the police conducted the initial 7 hours and 15 minutes of the interview, until Mr Thomas died, in accordance with the requirements of the law, offering no hope of advantage nor fear of prejudice. Nor did they create an oppressive atmosphere, nor excessively fabricate evidence. They treated Ms. King with respect and dignity.

The Defence Position

19The Defence submits that the police conducted an initial superficial investigation and came to a hasty conclusion that fell well short of giving them reasonable and probable grounds to arrest and charge her. Her detention and interrogation on November 1 was a ruse to shortcut a proper investigation. It was illegal, and any admissions she made must be excluded from evidence at trial.

20Although Ms King was detained in the interview room for 15 hours and 24 minutes, she was left alone for nearly 11 hours during numerous absences by Const. Dixon. He would leave the room to consult with his team respecting tactics and the direction of the questioning.

The Reasonable and Probable Grounds Issue

21The evidence of the initial investigation leading to the police allegedly having the necessary reasonable and probable grounds to make the arrest was given by Const. Justin Torek of the CIB and Sgt. Jeff Jensen of the Homicide Bureau.

22Const. Torek was dispatched to the location of the party, 49 Lonestar Cres. in Brampton and arrived at 3:27 am. He testified he had been advised by dispatch that they had received an anonymous call. He said:

…There was a report of someone who’s bleeding. There was a lot of yelling; said there was approximately 20 people that were at the house… the caller was indicating that there was a victim that had been hit by a bottle that was thrown by a female, and no further information from my end at the time.

23When he arrived, he saw Mr Thomas lying on the floor in a pool of blood with a cut to his forearm, and with a towel wrapped around his arm. As he was slipping in and out of consciousness, the officer was unable to communicate with him.

24Const. Torek said a woman, who identified herself as the owner of the home and Ms King’s sister, told him that she believed that Ms King had been involved in an argument with Mr Thomas, and that she had hit him with a bottle. He did not ask her name, nor the source of her belief, and he did not make any notes of their conversation.

25Const. Torek was then dispatched to 21 Bushcroft Rd., Ms King’s home and arrived at 4:14 am. He spoke to a young man, who said Ms King was not home. He said at this point he had grounds to arrest her, based on the information he received from Ms King’s sister.

26He left at 5:01, returned to 49 Lonestar and then back to 21 Bushcroft at 5:30 am to await Ms King’s return. He spoke to Michelle Hudson, who said she had been upstairs at the party. She had heard Ms King and Mr Thomas having an argument in the basement, and she had heard breaking glass down there. However she did not see either of them until Ms King came up the stairs to the main floor and was followed by Mr Thomas.

27The officer then spoke to a woman on Ms Hudson’s phone, who said that Ms King would attend at 22 Division to speak to police.

28In cross-examination, when asked if he “…believed that your witness [the home owner] was not being completely forthright with you, is that right?”, Const. Torek replied:

Well there’s always more information to obtain and especially when speaking with people in these circumstances, with a chaotic situation, they may not be able to relay all the necessary information at that particular time. It might be something that would be worth investigators speaking to later and after the situation has had some time to calm down…

29Sgt. Jensen arrived at 21 Bushcroft shortly after Const. Torek and saw Mr Thomas lying on the floor, bleeding heavily. He administered first aid to him and tried to talk to him, but he got no response. He said Const. Canonico told him that the home owner told him Ms King was responsible for the cut to Mr Thomas. Const. Canonico’s notes of what she heard from the home owner read:

Thomas Franklin (sic) and Debbie were observed in an argument, then he walked after, complainant didn’t observe her sister after that, just heard a breaking of a bottle and the victim bleeding.

30Therefore, the reasonable and probable grounds the Crown says the police had to arrest and charge Ms King rely on three pieces of evidence, all of very dubious quality – the anonymous 911 call about someone bleeding and someone hit by a bottle thrown by a female, and Ms Hudson’s comment that she heard glass breaking after she saw Ms King and Mr Thomas arguing, coming up the stairs, and the home owner who said she believed Ms King had hit Mr Thomas with a bottle (she later recanted at the police station).

31Ms Hudson did not see anything herself. Her information could have been received from someone else, and was thus hearsay, or perhaps a conclusion she reached based on hearing an argument and then breaking glass downstairs. Const. Canonico did not ask her the source of her belief. As such, Sgt. Jensen did not know whether he was receiving simple hearsay or even double or more hearsay. He had no information upon which to determine the reliability of the information; for example, what exactly the witness saw and heard, the state of sobriety or otherwise of the witness, or even whether there had been an actual eye-witness to Mr Thomas receiving his injury. He agreed that a lot was happening, and that he faced a confusing situation. He said there were a lot of people there who wanted to leave.

32Sgt. Jensen confirmed the arrest was made for “aggravated assault” and was not merely an investigative arrest. Further, he conceded the police did not have both reasonable and probable grounds to arrest. The following exchange occurred during his cross-examination:

Q. So this wasn’t an investigative detention, let’s bring her in and see what’s going on, let’s sort it out. It was arrest her. So you believed you had reasonable and probable grounds at that point, right? A. I had reasonable grounds to believe. Q. Okay. Not probable just reasonable, is that right? A. Reasonable grounds to believe that she committed the offence. Q. Okay, not probable just reasonable. A. Its reasonable grounds; it’s not reasonable and probable grounds.

33These remarks can be interpreted to mean he actually lacked probable grounds or that he believed that the test required only that he have reasonable grounds. Either way, his belief falls short of that required to arrest a person for a specific offence.

The Police Conduct at 22 Division

34Ms King attended at the police station and was arrested by Const. Dixon at 7:25 am on November 1. She was escorted through the detachment to the interview room by Const. Dixon. He could not recall whether or not they had come into contact with other police officers. Outside the room, he gave her what he described as a brief form of caution and her right to counsel, although he did not read them from his book, nor did he make notes of what he said. He agreed he did not give her, either outside or inside the room, the secondary caution, which reads:

If you have spoken to any other officer or person in authority, or if any such person has spoken to you in connection with this matter, I want it clearly understood that I do not want it to influence you in making any statement.

35At 9:00 am, before the substantive questioning got underway, the home owner and sister of Ms King, by this time identified as Bobette Slater, attended the police station and recanted her earlier comment that she believed her sister had caused the injury to Mr Thomas. Curiously, no officer made a note of her comment or questioned her as to what information she might have had to bring about the changed version of her story, nor even about the initial source of the information she gave to Const. Torek.

36Before commencing the questioning, Const. Dixon ushered into the interview room a woman whom he introduced as a Commissioner of Oaths. He said they were going to take a KGB statement, explaining that “…you have to either swear on the Bible that you’re gonna tell the truth that kinda thing. If you don’t then there’s um, consequences for making a false statement…” He then advised her of the provision of s.140 and s.139 of the Criminal Code and of the penalties for lying under oath. He also told her she “…may be a witness at a trial concerning the events you describe in your statement”, and that she could be charged under s. 137 of the Criminal Code if at trial she changes what she tells him. He then had her sign a document acknowledging she understood what he had told her.

37Const. Dixon conducted the interrogation over the following 15&1/2 hours. The Crown seeks admission of the portion of the interview until the police became aware of Mr Thomas’ death, or just over seven hours of the total detention. At the conclusion of the 15&1/2 hours, they released her without charge.

38The Crown takes the position that the police had reasonable and probable grounds to arrest and charge Ms King. The Crown concedes her arrest was not an investigative detention.

The Law

39Reasonable and probable grounds was defined by the Supreme Court in Baron v. Canada, 1993 CanLII 154 (SCC), [1993] 1 S.C.R. 416, at pp. 446-47 as:

The standard … is one of credibility based probability, which is the standard required by s. 8 of the Charter…

40In R. v. Censoni, [2001] O.J. No. 5189 (S.C.) at paras. 29 through 40, Justice Hill articulated an in depth analysis of the law defining the concept and its place “…in a continuum of standards of proof within the criminal process.” (para. 29). He pointed out that the standard requires proof greater than that necessary for a prima facie case, but less than that necessary to establish proof beyond a reasonable doubt. (para.31).

41Reasonable and probable grounds has both a subjective and an objective component to it: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-51. At para. 35, Hill J. said, respecting the objective component;

In reviewing the objective component of reasonable grounds, the question is whether the officer’s opinion was supported by objective facts… In Storrey v. The Queen, supra, at 324, Cory J. spoke of a reasonable person standing in the shoes of the police officer believing reasonable and probable grounds existed…

42At para. 35, respecting the subjective component, he observed:

The subjective component amounts to an honest belief that the suspect committed an offence or that evidence can be seized relating to the commission of an offence…”

43In R. v. Musurichan (1990), 1990 CanLII 11054 (QC CA), 56 C.C.C. (3d) 570, (Alta. C.A.) the Alberta Court of Appeal noted at p. 574:

The important fact is not whether the peace officer’s belief…was accurate or not, it is whether it was reasonable. That it was drawn from hearsay, incomplete sources, or that it contains assumptions, will not result in legal rejection by resort to facts which emerge later. What must be measured are the facts understood by the peace officer when the belief was formed…

See also R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at paras. 66-67.

44Thus, to arrive at reasonable and probable grounds to believe a suspect committed an offence, the evidence upon which the officer relies must be such that a reasonable person would conclude it pointed to the suspect as probably guilty.

45Important to the analysis is that the investigating officer must have an honest belief that the person is probably guilty, and that belief must be reasonably based. Further, it must be supported by evidence collected during the investigation that has at least enough weight to make his honest belief credible. The evidence need not be overwhelming, nor even admissible at trial, eg. hearsay or incomplete evidence may suffice, but it must be sufficient to allow the officer to reach a belief that his grounds are both reasonable and probable.

46The officer must take into account all information available to him or her. Only information that is reasonably believed to be unreliable can be ignored: R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743, at p. 751, leave to appeal to S.C.C. dismissed, [1997] S.C.C.A. No. 571.

Analysis

47In this case, the evidence upon which the police relied to effect the arrest was simply so amorphous, so lacking in substance, and so fragile that it could not support a reasonable and probable belief that Ms King probably committed an offence. There was no eye-witness, at least none that spoke to the police that night, to commence the chain of hearsay comments that travelled from Bobette Slater to Const. Canonico to Sgt. Jensen.

48Sgt. Jensen’s comments under cross-examination are an admission that either he lacked probable grounds to arrest, or alternatively he understands the test to be that he need have only reasonable grounds to arrest. It is a recognition by the police that their arrest of Ms King was not founded on the requisite criteria.

49It appears the conclusion that Ms King was responsible for the injury and subsequent death of Mr Thomas was made by Const. Canonico based on what Ms Slater had said. And Ms Slater did not say that she believed or thought Ms King was responsible, just that she heard glass breaking and saw Mr Thomas bleeding.

50The curious procedure the police followed in summoning a Commissioner of Oaths and the explanation to Ms King respecting a KGB statement may also be a recognition of their lack of reasonable and probable grounds to arrest. The obtaining of a KGB statement is a procedure the police usually follow when interviewing a potential witness to an offence, not a suspect.

51In my view, in this case it can be concluded that the KGB statement was employed with Ms King, not because they had reasonable and probable grounds to arrest and charge her, but because they needed her statement under oath in the event she was a witness to the event in the basement when Mr Thomas was cut.

Conclusion re Reasonable Grounds for Arrest

52The Crown has failed to demonstrate that the police possessed the requisite reasonable and probable grounds to arrest and charge Ms King on November 1, 2009.

53It was agreed with counsel that if I concluded the police lacked lawful grounds to arrest Ms King, as I have, counsel wished a further opportunity to address the Court respecting the voluntariness of any statement that followed, as well as whether the evidence should be excluded at common law, and, in light of the Crown’s concession that a s. 9 Charter breach would follow, under s. 24(2).

54Accordingly, I released my ruling finding that the police lacked objectively reasonable grounds for arrest and invited further submissions. These were provided in writing and orally at a continuation of the Application.

Voluntariness Issues/Residual Discretion to Exclude

The Crown Position

55The Crown argues there is no basis on the evidence to find the portion of the statement taken prior to when the police learned of Mr. Thomas’ death involuntary at common law. Further, there is no basis to conclude that the arrest and detention of Ms King was part of an intentional plan by the police to confine her for investigative purposes.

56The police acted in good faith. Even if the Court were to find they acted negligently in breaching Ms King’s s. 9 Charter rights, that cannot be equated with bad faith. The arrest was not a ruse perpetrated to extract an inculpatory statement. The Crown says Ms King ultimately made an informed choice to speak to the police. While the impact of the s. 9 breach was significant, there should be no concerns surrounding the reliability of the largely exculpatory statement, and the administration of justice would not be brought into disrepute by its admission.

The Defence Position

57The Defence argues that the police misused their arrest and detention powers to obtain information from Ms King. It was a ruse that ought not to be sanctioned by this Court. Such conduct raises a reasonable doubt as to the voluntariness of the statement. Ms King’s right to silence was infringed. She was denied the ability to choose to make a statement or not, by the use of the Commissioner of Oaths gambit by the police. Therefore, the Crown cannot meet the voluntariness test. In the alternative, the Court should exercise its discretion to exclude the statement to preserve trial fairness.

58Further, the statement should be excluded under s. 24(2) of the Charter as a result of the s. 9 breach, which is now conceded by the Crown without the need for a formal Charter application. Good faith cannot exist when stumbling ignorance and a pattern of misconduct is shown on the part of the police. In this case exclusion would not thwart the truth-seeking function because the Crown will still be able to proceed to trial and rely on the evidence of other witnesses in that respect.

Analysis

Right to Silence

59Central to both parties’ submissions was whether the police had used a calculated ruse or a façade to keep Ms King in custody for the sole purpose of questioning and eliciting incriminating evidence from her.

60In my view, whether the tactics the police employed that evening and early morning are characterized as a subterfuge, a ruse, or a trick is not determinative in this case. The police were confusing and misleading, and they violated Ms King’s right to silence and right against self-incrimination.

61Ms King had the right to know why she was being detained, either as a suspect or as a witness, as the rights and jeopardy associated with each status are obviously very different.

62One of the most troublesome aspects of the police conduct, amid the pattern of conduct that emerged, was the introduction of a Commissioner of Oaths to have Ms King provide a KGB statement shortly after speaking with counsel.

63This occurred in the context of being informed she was going to be charged, told that she had to either swear or affirm to tell the truth, advised of the three Criminal Code offences she could be charged with if she was untruthful, and warned that she could be a witness at a trial. She was instructed that “…you have to …” swear to tell the truth, and if she did not “…there’s, um, consequences for making a false statement…”

64Conversely, the Supreme Court has consistently held that the common law right to silence reflects the general principle that, absent statutory or other legal compulsion, no one is obligated to provide information to the police or to respond to questioning: Singh, at para. 27; R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519, at para. 41; Rothman v. The Queen, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640, at p. 683.

65Although the police were not precluded from questioning Ms King, even after she had continued to assert the right to silence, I find that faced with these limited options and the possibility of criminal penalty by a person introduced as a judicial authority figure, the effect could reasonably be said to have deprived Ms King of her ability to meaningfully exercise her free will and the choice of remaining silent, if she wished: R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at paras. 36, 53; R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, at p. 184.

66The police had detained her, without reasonable grounds, and were in complete control of her and the situation. She could not simply walk away. There was an inherent risk of abuse of power by the police: Singh at para. 32. Their added conduct and dialogue with her would reasonably have had the effect of confusing her, as it might anyone in her situation, as to her status, the jeopardy she faced, and her right to remain silent or to voluntarily speak to the police.

67At paragraph 68 of Oickle, the Supreme Court set out the “…panoply of different considerations and tests…” governing the confessions rule. In discussing “police trickery”, the Court reaffirmed the rule enunciated by Lamer J. in Rothman, that the issue is “…not whether the statement is or is not reliable, but

whether the authorities have done or said anything that could have induced the accused to make a statement which was or might be untrue…”.

68Lamer J. also recognized that the authorities must sometimes be permitted to resort to tricks or other forms of deceit, particularly when dealing with shrewd and often sophisticated criminals. However, in this case, Ms King is hardly a shrewd or sophisticated criminal. Having observed her for approximately 25 hours of interrogation, her demeanour and oral exchanges with her interrogators shows her to be a tired, often frustrated and sometimes confused, but clearly unsophisticated person.

69I find Ms King’s right to silence was infringed by the police. As a result, the Crown has not proven voluntariness beyond a reasonable doubt, and the statement must be excluded: Singh at paras. 8, 37.

Residual Discretion to Exclude

70However, even if I am incorrect in this conclusion or there had been no unlawful detention triggering s. 9 of the Charter, I am satisfied that the same police conduct which resulted in the unlawful arrest and detention of Ms King and breached her right to silence also justifies use of the Court’s residual discretion to exclude the statement to avoid rendering the trial, or the public perception of it, unfair, as constitutionalized under ss. 11(d) of the Charter: see R. v. Harrer, 1995 CanLII 70 (SCC), [1995], 3 S.C.R. 562, at paras. 21-24.

71As Chief Justice McLachlin noted in Harrer at para. 45, a trial must not only be fair, but must also be seen to be fair, “…both from the perspective of the accused and the perspective of the community… [A] fair trial is one which satisfies the public interest in getting to the truth, while preserving basic procedural fairness to the accused…”. See also R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at para. 22.

72Justice Arbour, for the Court in R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, further recognized that the Harrer jurisdiction is intended to confer common law discretion to exclude evidence obtained in such circumstances that admission would cause trial unfairness - the concern of course being that how the evidence was obtained may render it unreliable, or the police may have acted in such an abusive or unfair fashion that admission would adversely affect the fairness of the trial and/or irremediably taint the fairness of the trial: Harrer at para. 46.

73In my view, after unlawfully arresting Ms King, the confusion created by the police indecision as to whether Ms King was a suspect or a witness, then placing her under oath with the warning of criminal sanctions while telling her that she either had to swear or affirm the evidence she was required to give, all resulted in a failure to provide her with a choice of speaking to them or not.

74The cumulative effect of this pattern of conduct would at least result in the appearance of an unfair trial if her subsequent statement to the police were admitted into evidence, which cannot accord with the principles of fundamental justice and basic procedural fairness that Ms King and all members of the Canadian public are entitled to.

Section 24(2) of the Charter

75Given my conclusions on the voluntariness and trial fairness issues, it is not strictly necessary for me to consider admission under s. 24(2).

76However, based on the findings that I have made, I would have excluded the statement on this basis as well, pursuant to the Supreme Court decisions in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 and R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494.

77Counsel for the Crown fairly conceded that the impact of the s. 9 violation favours exclusion.

78I find that the seriousness of the violations also favour exclusion. The evidence reveals that the Charter-infringing conduct was part of a pattern of abuse or misconduct on the part of the police that resulted in the unlawful arrest and detention of Ms King, breached her right to silence, and deprived her of the right to re-consult counsel after her jeopardy increased when the police discovered that Mr Thomas had died: Grant at para. 75.

79Finally, as the breaches undermine the reliability of the evidence and the Crown has acknowledged that the evidence is not essential for the prosecution to proceed on its merits, I conclude that the societal interest and long term reputation of the administration of justice also favours exclusion of the statement in this case: Grant at paras. 79-86; Harrison at paras. 34, 39-42.

Result

80Ms King’s statement to the police of November 1, 2009 is excluded from evidence at her trial.

O’Connor J.