COURT FILE NO.: CR-11-1614-00

DATE: 20130228

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

JILL PRENGER, for the Crown

• and -

NICOLE THEORET

JOEL HECHTER, for the Respondent/Accused

RULING RE: ADMISSABILITY OF ACCUSED’S STATEMENT

Durno J.

1Nicole Theoret is charged with aggravated assault and mischief to private property in relation to events on December 31, 2010. The Crown seeks to introduce her statements to police officers given that night and seeks a ruling the statements were voluntarily given. The accused contests their admissibility submitting I should have a reasonable doubt the utterances were voluntary. She submits the police conduct created an atmosphere of oppression that should raise at least a reasonable doubt that her statements were made voluntarily.

2Ms. Theoret seeks to exclude the statements pursuant to s. 24(2) of the Charter submitting her s. 10(b) rights to counsel were violated. The Crown concedes the breach, but argues the evidence should not be excluded under s. 24(2).

3Ms. Theoret’s statements can be divided into four areas. First, around 3:00 a.m. she called 9-1-1 to report she had been assaulted. There is no issue that statement was voluntarily given and no Charter issues arise. The statement is admissible.

4Second, Ms. Theoret first came into contact with P.C. McDonald around 3:00 a.m. and approached him as the victim who made the 9-1-1 call. There is no issue those statements were voluntary and no Charter issue arises. The statements are admissible.

5At 3:35 a.m. as a result of the directions from Sergeant Wood, who had been in the house, Ms. Theoret was arrested for assault causing bodily harm and placed inside the cruiser by P.C. McDonald. While in the cruiser, she speaks to Constable McDonald before she is driven to the station. Those comments will be reviewed later in the reasons. Finally, the contentious statement is a videotaped statement to P.C. McKean at 22 Division between 7:39 a.m. and 9:37 a.m.

6Dealing first with voluntariness, has the Crown established beyond a reasonable doubt the statements was voluntarily given?

The Law on Voluntariness

7The Supreme Court of Canada held in R. v. Oikle 2000 SCC 38, [2000] 2 S.C.R. 3 that there were two approaches to voluntariness, the first reflected in the rule from Ibrahim v. The King, [1914] A.C. 599 (P.C.), at p. 609:

… no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.

8In R. v. Ward, 1979 14 (SCC), [1979] 2 S.C.R. 30 and R. v. Horvath, 1979 16 (SCC), [1979] 2 S.C.R. 376 the operating mind criteria emerged and in R. v. Hobbins v. The Queen, 1982 46 (SCC), [1982] 1 S.C.R. 553, at pp. 556-57, Laskin C.J. noted that in determining the voluntariness of a confession, courts should be alert to the coercive effect of an "atmosphere of oppression," even though there was "no inducement held out of hope of advantage or fear of prejudice, and absent any threats of violence or actual violence."

9An atmosphere of oppression was addressed by the Supreme Court of Canada as follows in Oikle:

58 There was much debate among the parties, interveners, and courts below over the relevance of "oppression" to the confessions rule. Oppression clearly has the potential to produce false confessions. If the police create conditions distasteful enough, it should be no surprise that the suspect would make a stress-compliant confession to escape those conditions. Alternately, oppressive circumstances could overbear the suspect's will to the point that he or she comes to doubt his or her own memory, believes the relentless accusations made by the police, and gives an induced confession.

59 A compelling example of oppression comes from the Ontario Court of Appeal's recent decision in R. v. Hoilett (1999), 1999 3740 (ON CA), 136 C.C.C. (3d) 449. The accused, charged with sexual assault, was arrested at 11:25 p.m. while under the influence of crack cocaine and alcohol. After two hours in a cell, two officers removed his clothes for forensic testing. He was left naked in a cold cell containing only a metal bunk to sit on. The bunk was so cold he had to stand up. One and one-half hours later, he was provided with some light clothes, but no underwear and ill-fitting shoes. Shortly thereafter, at about 3:00 a.m., he was awakened for the purpose of interviewing. In the course of the interrogation, the accused nodded off to sleep at least five times. He requested warmer clothes and a tissue to wipe his nose, both of which were refused. While he admitted knowing that he did not have to talk, and that the officers had made no explicit threats or promises, he hoped that if he talked to the police they would give him some warm clothes and cease the interrogation.

60 Under these circumstances, it is no surprise that the Court of Appeal concluded the statement was involuntary. Under inhumane conditions, one can hardly be surprised if a suspect confesses purely out of a desire to escape those conditions. Such a confession is not voluntary. Without trying to indicate all the factors that can create an atmosphere of oppression, such factors include depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time.

10Here, the accused argues the video tape of Ms. Theoret’s booking where she is seen to be sobbing and crying, having her bra taken off of her, without speaking to counsel and saying she did not want to speak to P.C. McKean created an atmosphere of oppression rendering the statement involuntary. I disagree.

11The police conduct did not create an atmosphere of oppression that would impact on Ms. Theoret’s ability to choose whether to speak to the officers or not on this record. While I do not minimize the impact of being arrested, that a detainee was crying in itself does not lead to an inference it was oppressive at the booking time or later in the interview. It is clear Ms. Theoret is agitated and talking in the booking video that has no audio but why that is so cannot be determined and certainly cannot lead to an inference the police created an atmosphere of oppression as defined in the case law. There was one request by Ms. Theoret regarding a tampon that was accommodated immediately. Her bra was removed off camera and in the presence of a female officer. Her other request, to speak to the complainant was understandably refused. Saying once in a two hour interview that she did not want to talk anymore does not reflect an oppressive atmosphere, whatever Ms. Theoret meant.

12The Crown has established beyond a reasonable doubt the statement is voluntary within the Ibrahim, Ward and Horvath tests, and considering the atmosphere of oppression criteria.

The Charter Application

13On this application, the onus is on Ms. Theoret, on a balance of probabilities, to establish a breach and on the same standard to establish the evidence should be excluded pursuant to s. 24 (2) of the Charter.

The Right to Counsel

14Section 10(b) states: everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. The section has been described as follows in R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173:

16 The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfil those obligations: R. v. Manninen, 1987 67 (SCC), [1987] 1 S.C.R. 1233, at pp. 1242-43. This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him or herself. Accordingly, a person who is "detained" within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty: Brydges, at p. 206; R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, at pp. 176-77; and Prosper. Under s. 10(b), a detainee is entitled as of right to seek such legal advice "without delay" and upon request. As this Court suggested in Clarkson v. The Queen, 1986 61 (SCC), [1986] 1 S.C.R. 383, at p. 394, the right to counsel protected by s. 10(b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process.

15In Bartle, the Supreme Court further noted at para. 41:

... Since the informational obligations s. 10(b) imposes on state authorities are not onerous, it is not unreasonable, in my view, to insist that these authorities resolve any uncertainty that might exist regarding the detainees knowledge of his or her rights, something they can do by simply reading the standard caution, as they are required to do in cases where the detainee does not clearly and unequivocally indicate the desire to waive the informational component.

16The section imposes three duties on the police: providing the detainee with the rights to counsel, known as the informational component; facilitating the exercise of those rights where the detainee indicates his or her desire to exercise the right, known as the implementational component, and the obligation not to ask further questions or have the detainee participate in the production of evidence until he or she has exercised the rights to counsel, known as the duty to hold off.

17It is with respect to the informational component that the breach occurred in this case. That component has been described as follows in Bartle:

19 ... it is critical that the information component of the right to counsel be comprehensive in scope and that it be presented by police authorities in a "timely and comprehensible" manner: R. v. Dubois, 1990 3298 (QC CA), [1990] R.J.Q. 681 (C.A.), (1990), 54 C.C.C. (3d) 166, at pp. 697 and 196 respectively. Unless they are clearly and fully informed of their rights at the outset, detainees cannot be expected to make informed choices and decisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as their right to silence: Hebert.

20 Indeed, the pivotal function of the initial information component under s. 10(b) has already been recognized by this Court. For instance, in Evans, McLachlin J., for the majority, stated at p. 891 that a "person who does not understand his or her right cannot be expected to assert it". In that case, it was held that, in circumstances which suggest that a particular detainee may not understand the information being communicated to him or her by state authorities, a mere recitation of the right to counsel will not suffice. Authorities will have to take additional steps to ensure that the detainee comprehends his or her s. 10(b) rights. R. v. Smith (Norman MacPherson), 1991 91 (SCC), [1991] 1 S.C.R. 714, at pp. 724-29, and Brydges, at p. 205.

18While the Crown concedes there was a breach of s. 10(b) of the Charter, a brief overview of the facts will place the issues in context for the s. 24(2) analysis that follows. Constable MacDonald responded to Ms. Theoret’s 9-1-1 call around 3:30 a.m. While the call directed the officer to 34 Mary Croft, he saw Ms. Theoret on the sidewalk a couple of houses away.

19He described her as irate, upset, drunk, extremely or heavily intoxicated, and as having a strong odour of alcohol on her breath. At the preliminary inquiry he said she was loud. He was trying to get ‘yes’ or ‘no’ answers out of her. He said, “It seemed like she wasn’t listening to me. She basically had a story going on in her mind, and she kept verbalizing that story over and over again.” He let her ramble as she kept saying, “she threw me through the window,” she stole my necklace, she had been in a fight with another party who was still in the house and the woman in the house had a steak knife.

20He had no problem obtaining her name and may have been shown a health card. He said she was intoxicated so he did not know what was going on in her head. There was no real way of knowing if she understood the rights to counsel, sometimes people say they do, yet do not. When they arrived at the station at 4:22 a.m., she had to be directed to the cells and officers had to prompt her to get her to do things.

21Constable Sarah Jones attended the scene and conducted the search incident to arrest of Ms. Theoret. She described the applicant as appearing to be under the influence of alcohol, unsteady on her feet, almost falling down a couple of times, disoriented, not co-operative, not staying in one spot, a little un-cooperative, a little hesitant, it was more that she was not happy about being arrested.

22At 3:35 a.m., after arresting Ms. Theoret for assault causing bodily harm, P.C. MacDonald put her in his cruiser, sat in the front seat and read her the rights to counsel and the police caution from his memo book. He broke the elements of the rights down into several components and after each element asked the applicant if she understood. When told she was under arrest for assault causing bodily harm and asked if she understood Ms. Theoret said, “She threw me through the window.” He asked her two or three more times and she gave the same answer or said nothing. For the balance of the questions, the ones relating to her s. 10(b) rights, when asked if she understood, Ms. Theoret said nothing. The final question was do you wish to call a lawyer?” Ms. Theoret said, “She stole my necklace.”

23The officer had a notation that he gave Ms. Theoret the standard police caution and received no answer when he asked if she understood.

24The officer said he went out of his way to make sure the applicant understood. When reading the rights to counsel he looks for a nod, a yes or a no. Here, there was nothing. He concluded Ms. Theoret understood her rights to counsel because she was making choices what to say and did not speak over him. He thought she was choosing not to answer.

25While never directly saying so, it is implicit in his answers that he thought she was waiving her rights to speak to a lawyer. Ms. Theoret never said she understood her rights to counsel.

26Constable MacDonald admitted that there was an option of re-visiting the rights to counsel later but he had things to do at the station and there was only so much time available to him. He understood the importance of the rights to counsel but he only had so much time. In any event, he did not believe it would have made any difference if he had asked further questions. He felt Ms. Theoret was intentionally being difficult.

27Finally, P.C. MacDonald said he told Constable McKean he had given Ms. Theoret her rights to counsel and caution but could not recall if he had told that officer about her responses.

28P.C. McKean testified Constable MacDonald gave him the details of the incident, the basic background etc. I infer it did not include the time of arrest because P.C. McKean thought she had been arrested much later than she had been. He said Constable MacDonald gave him no information regarding the rights to counsel. Constable McKean assumed Ms. Theoret had been read her rights to counsel and understood when arrested, on his belief a short time before he saw her. He noted that she would have been seen by the officer in charge of division when she was booked in and her rights would have been reviewed at that time.

29For some reason, the booking video equipment does not have the capacity to audio record. Accordingly, the best evidence of what the applicant was told and what she said is not available. While I appreciate police services, like all who rely on public funds, face significant fiscal challenges, it is difficult to see why there is no audio capacity. While not all, other police services have audio and video of the bookings. It is a great assistance in terms of rights to counsel, as well as the condition of detainees, and the detainee’s complaints or requests. All that the video alone does is present their physical condition and actions, albeit silently. An audio tape of what was said would have been of great assistance to the court. It might have impacted on the need for an application and/or the length of application. Officers being in court costs police services money that might have been saved had the audio been available.

30Some of the paperwork from Ms. Theoret’s time at the division has been filed but there is no reference to rights to counsel. P.C. MacDonald said he believed the officer in charge would have asked about rights, that there was a discussion but he had no recollection of what Ms. Theoret’s answers were. Presumably, that includes no recollection of the details of what was said to her.

31The applicant was arrested at the scene for assault causing bodily harm only. By the time she gets into the interview room 4 hours later, she was charged with aggravated assault and mischief to private property. There is no evidence she was ever told about those charges before she spoke to P.C. McKean.

32P.C. McKean said, “… unfortunately he went on the assumption the applicant had been given her rights to counsel and understood previously.” He never addressed the issue at the outset on the tape recorded interview except to say:

Q: Okay. Um, I understand right now you’ve been arrested for two charges which is aggravated assault and mischief.

A: No

Q: Okay, No, I’m not asking you if you’re guilty of these offences but that’s what you’re arrested for.

A: Well that’s ridiculous man.

Q: Okay. But …

A: No, like that’s – this is ridiculous, honestly.

Q: Right, just hear me out, okay. That’s what the officer arrested you for, that’s why you’re back here, okay. We need to cover that off in a sense that I need to ensure that you understand that that’s what you got arrested for and …

A: But ...

Q: … that’s why you’re here.

A: I called the police.

Q: No, we’ll get to all that, okay. What this is, is an opportunity for you to explain to me what happened because nobody has heard your side of the story yet.

A: They just arrested me.

Q: Okay. But I wanna ensure that you understand that that’s what you’ve been arrested for. I’m not asking if you’re guilty of it but you need to understand. Remember when you were back at the house I assume an officer wearing uniform arrested you, right?

A: Mm-hmm

Q: Put handcuffs on you?

A: Mm-hmm. (Nods head, yes)

Q: Okay. He probably told you you’re under arrest?

A: Mm-hmm.

Q: Told you the charges.

A: In the car, yeah.

Q: In the car, okay.

A: Yeah

Q: Read you your rights.

A: Mm-hmm.

Q: Right, And …

A: Yeah

Q: … now you’re back here.

33That is the only reference in the interview to right to counsel. It does not include whether she understood what she was read, whether she had exercised her rights or waived them, and there is no reference to a caution or secondary caution regarding what other officers might have said. However, the failure to administer a caution in itself does not lead to exclusion of statements taken by persons in authority.

34P.C. McKean said he has learned from this case and now always addresses the rights to counsel in interviews. He said he had a false assumption Ms. Theoret understood her rights to counsel, that if she wanted to speak to a lawyer she would ask to do so, although it was not a clear “yes” that she understood.

35While the Crown concedes there was a breach of Ms. Theoret’s rights to counsel, identifying and explaining the breach will inform the s. 24(2) analysis. In her factum, Ms. Prenger wrote at para. 11:

The Crown agrees that the Peel Regional Police should have fully revisited Ms. Theoret’s rights to counsel with her sometime before the police pursued questions with her during Ms. Theoret’s recorded interview. It was their duty to pursue and obtain a clear answer from Ms. Theoret as to what her choice was regarding her rights to counsel before they pursued information from her. They did not. In this absence of duty, they breached Ms. Theoret’s Charter rights.

36I agree there was an obligation on the police to provide the right to counsel and to determine if Ms. Theoret’s comprehended her rights and wanted to exercise them in the circumstances of this case. The determination of Charter breaches is a fact-specific one, not a blanket ruling applicable to anyone with some or even all of the same circumstances.

37There are a series of cases, starting with R. v. Anderson (1984), 1984 2197 (ON CA), 10 C.C.C. (3d) 417 in our Court of Appeal, and R. v. Baig (1987), 1987 40 (SCC), 37 C.C.C. (3d) 181, affirmed by the Supreme Court of Canada from our Court of Appeal that stand for the proposition that when the police give a person his or her rights to counsel, absent some indication regarding a lack of comprehension, officers can proceed on the basis the rights were understood. However, where there are “red flags” regarding the detainee’s comprehension of those rights known to the officer something more is required. The red flags can include language comprehension issues, the detainee’s state of sobriety as a result of the consumption of drugs and/or alcohol, the intelligence level of the detainee and mental health issues. Where there are red flags known to the officer, he or she cannot proceed on the basis the rights were understood. Where comprehension issues arise because of these or other reasons there is an obligation to go further.

38The applicant’s position, with which the Crown agrees, is that there were red flags regarding the rights to counsel administered by P.C. MacDonald. In the particular circumstances of this case, the police were required to again address the rights to counsel before attempting to take a statement. Those red flags included that Ms. Theoret never said she understood and never answered when she was asked if she wanted to call a lawyer. I would add that Ms. Theoret was very intoxicated when she was given her rights to counsel as referenced earlier from the evidence of Constables MacDonald and Jones.

39There are some similarities, and I stress some, between this case and the British Columbia Court of Appeal judgment in R. v. Cotter (1991), 1991 1068 (BC CA), 62 C.C.C. (3d) 423 where in response to the rights to counsel the detainee told the officer to “Fuck off.” Cotter was significantly impaired, taken to the division, slept for a while, including two unsuccessful efforts by officers to wake him up. The officers succeeded on the third try, and when taken to the interview room Mr. Cotter was given a caution but no rights to counsel. The Court of Appeal held there was a s. 10(b) breach.

40This ruling does not impact at all on impaired driving cases as the Crown contended during my questions in submissions. There are time restrictions in those offences and again, each case is specific. Even if there is a breach of the rights to counsel the result is not automatic exclusion of the evidence. R. v. Mohl 1989 101 (SCC), [1989] 1 S.C.R. 1389.

41The Crown does not submit there was a waiver of Ms. Theoret’s rights to counsel as it appears P.C. MacDonald concluded. Ms. Prenger is correct. A waiver of the rights to counsel has been described as follows:

In Korponay v. Attorney General of Canada, 1982 12 (SCC), [1982] 1 S.C.R. 41 at p. 49, the validity of a waiver of a procedural right "... is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect..."

... the standard required for an effective waiver of the right to counsel is very high: Clarkson v. The Queen, 1986 61 (SCC), [1986] 1 S.C.R. 383, Manninen, and Evans. As I said in Bartle, at pp. 192-94 and 206, a person who waives a right must know what he or she is giving up if the waiver is to be valid.

R. v. Prosper (1994), 1994 65 (SCC), 92 C.C.C. 3d 353 S.C.C.

Furthermore, the rights guaranteed by s. 10(b) may be waived by the detainee, although the standard for waiver will be high, especially in circumstances where the alleged waiver has been implicit: Clarkson, at pp. 394-96; Manninen, at p. 1244; Black, at pp. 156-57; Brydges, at p. 204; and Evans, at pp. 893-94.

42On this record there was no waiver of the rights to counsel.

43I turn next to s. 24(2) of the Charter. The applicant says she has established that the evidence should be excluded on the three bases in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. Ms. Prenger says the applicant has succeeded on the first prong only and that the remaining bases support the admission of the evidence.

44Before addressing the three grounds under s. 24(2), I will address one of the Crown’s arguments, that starting with the 9-1-1 call and throughout Ms. Theoret displayed a fixed intention, if not an obsession, with “telling her story.” Notwithstanding the breach, she was going to talk anyway. I am not persuaded the evidence supports that conclusion.

45First, there is a significant differences between someone calling the police to lodge a complaint about a theft and someone who within 15 minutes of the call being arrested while extremely intoxicated and given rights to counsel. I accept that with P.C. MacDonald, the applicant repeatedly stated her three points: she stole my ring, she threw me through a window and the woman in the house has a butcher knife or similar words. However, there were no responses to all but two questions in the charge, rights to counsel and caution. Her few verbal responses to P.C. McKean’s questions, no doubt show her obsession with what she said had happened to her. In the videotaped statement, she was answering questions.

46It is not like Hill J.’s judgment in R. v. Dempsey, [1997] O.J. No. 196 (Gen. Div.) where a seasoned criminal’s rights to counsel were violated because the officers did not honour the hold off period.

47His Honour found Dempsey would not have acted any differently despite his unsuccessful attempt to contact his counsel, the police letting him call a friend who was going to call his lawyer and the police starting the questioning 10 minutes later. His Honour did not exclude the evidence because Dempsey was a mature offender with prior experience in the criminal justice system, had only let the phone ring 4 times at his counsel’s office, declined the opportunity to speak to duty counsel, and His Honour rejected his evidence in other areas.

48Most importantly, His Honour said,

The video interview was taken with the arrestee about an hour and a half after his arrest, more or less, and Mr. Dempsey in conduct and speak leads me to believe that he had every intention of acknowledging his guilt to the officers and was prepared to await contact with counsel until his bail hearing on Monday.

49The same finding cannot be made on watching the video. It is not until well into the interview that Ms. Theoret makes what can be regarded as incriminating admissions.

50The second reason I am not persuaded by the argument is it involves speculation about what would have happened had Ms. Theoret been given her rights and exercised them. While the authorities may be viewed as conflicting, I find it is reasonable to proceed on the basis any counsel would have told the applicant not to answer questions. To say, on this record, that Ms. Theoret would have ignored a lawyer’s advice, because she kept repeating her themes, is speculation, in itself improper and more importantly, prohibited uniformly by higher courts. R v. Bartle (1994), 1994 64 (SCC), 92 C.C.C. (3d) 289 (SCC)

Should the Evidence be Excluded under s. 24(2) of the Charter?

51While the approach to s. 24(2) changed with Grant, there is a common theme, the need for the trial to be fair. A fair trial “is one that satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused.” Grant, at para. 65, quoting from R. v. Harrer, 1995 70 (SCC), [1995] 3 S.C.R. 562, at para. 45.

52The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. While excluding evidence resulting in an acquittal may provoke immediate criticism, s. 24(2) focuses not on the immediate reaction to individual cases. Rather, it looks to whether the overall repute of the justice system will be adversely affected by the admission of the evidence in the long term. It is an objective inquiry: whether a reasonable person informed of all relevant circumstances and the values underlying the Charter, would conclude the admission of the evidence would bring the administration of justice into disrepute. Grant, at para. 68.

53The focus is prospective. Section 24(2) starts from the fact the breach has already done damage to the administration of justice and seeks to ensure evidence obtained through the breach(es) does not further damage the repute of the justice system. Grant, at para. 69.

54The Crown argued that there are no prospective concerns here because both officers have stated that they have learned from their mistakes. I disagree. With respect, that argument draws the focus target of 24(2) concerns too narrowly. If that were the case, every officer who breached rights could say, “I learned my lesson and won’t do it again.” Accordingly, there are no prospective concerns. It is the long-term respect for the administration of justice. No one is suggesting the issues here are systemic problems with these officers or the Peel Regional Police. However, courts must make it clear to more than the officers involved how Charter breaches are viewed. In some cases that will mean critical and/or constructive comments about the procedures with the evidence admitted. In others, the evidence will be excluded. Each case has to be determined on its own facts.

55Finally, the focus of s. 24(2) is societal, not aiming at punishing police or compensating the accused. Rather, the concerns are systemic: on the broad impact the admission of the evidence will have on the long-term repute of the justice system. Grant, at para. 70.

The Three Avenues of Inquiry

56The Supreme Court in Grant identified three avenues of inquiry, each based in the public interest engaged by s. 24(2) viewed in a long-term, forward looking and societal perspective: the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and society’s interest in the adjudication of cases on their merits.

The Seriousness of the Charter Infringing Conduct

57First, examining the seriousness of the violation(s), the question is whether admitting the evidence would bring the administration of justice into disrepute by sending the message to the public that courts will condone state deviation from the rule of law by failing to dissociate themselves from the fruits of the unlawful conduct. Grant, at para. 72.

58State conduct resulting in Charter violations varies in seriousness, running the “gamut from blameless conduct, through negligent conduct, to demonstrating a blatant disregard for Charter rights …” What is important is the proper placement of the police conduct along the fault line, not the legal label attached to the conduct. R. v. Kitaitchik (2002), 2002 45000 (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.), cited with approval in R. v. Harrison, 2009 SCC 4; 2009 SCC 34, 245 C.C.C. (3d) 86 at para. 23.

59Identifying where along the “misconduct continuum”¹ the state conduct lies is the essential question in the first avenue of inquiry. At the one end are inadvertent or minor Charter violations, the admission of which would minimally undermine public confidence in the rule of law. At the other end, is evidence obtained through wilful or reckless disregard for Charter rights, the admission of which would inevitably have a negative effect on public confidence in the rule of law and risk bringing the administration of justice into disrepute. Grant, at para. 74. The more severe or deliberate the state conduct that led to the Charter violation, the greater need for courts to dissociate themselves from that conduct by excluding the evidence linked to the conduct. Grant, at para. 72.

60Good faith on behalf of the police will reduce the need for the court to dissociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged. Negligence or wilful blindness cannot be equated with good faith. Conduct revealing wilful or flagrant disregard of the Charter may require the court to dissociate itself from such conduct. Trial courts are cautioned to keep in mind that for every Charter breach that comes before the courts, many others may go unidentified and un-redressed because they did not turn up relevant evidence leading to a criminal charge. Evidence that the Charter infringing conduct was part of a pattern of abuse will tend to support exclusion. Grant, at para. 75.

61Ms. Prenger concedes the breach is serious. The right to retain and instruct counsel on arrest is a cornerstone of our criminal justice system. It is at that time the detainee requires the input from counsel with the critical decisions she or he faces. While P.C. McDonald said he now understood that the issue was whether the applicant understood her rights to counsel and he was a relatively new officer at the time, being on the force, about a year, his “contribution” to the breach was not limited to 5 minutes in his cruiser. He drove Ms. Theoret to the division and then had a duty to advise the officer-in-charge and the officers who were going to deal with the applicant whether he had complied with his Charter obligations. To have not received any response to the key question is troubling assuming his evidence that he told P.C. McKean about the rights to counsel is accepted. If it is not, then he never mentioned whether he had given the rights and obviously nothing about the responses.

62When the interview starts P.C. McKean has neither been given nor inquired about the information he requires to make an informed decision about the right to counsel but then gives it a quick and incomplete “once over,” only asking whether her rights were read to her. When he says it is aggravated assault and mischief Ms. Theoret says, “No” which might be in answer to the two charges or might indicate that she was not guilty.

63I find the conduct is more along the fault line to towards the serious end, notwithstanding there is no finding a bad faith. Ignorance or negligence regarding Charter standards cannot be equated with good faith, rewarded nor encouraged. The first avenue of inquiry strongly supports exclusion.

The Impact of the Breach(es) on the Charter-Protected Interests of the Accused

64The second avenue of inquiry is the impact of the breach on the applicant’s Charter-protected interests: here, what is the impact on the Ms. Theoret’s Charter-protected interests, to be advised of her right to obtain legal advice and to make an informed decision whether to speak to the police. To what extent did the breach actually undermine the interest protected by the right infringed? Chief Justice McLachlin put the issue as follows in Harrison, at para. 28,

This factor looks at the seriousness of the infringement from the perspective of the accused. Did the breach seriously compromise the interests underlying the right(s) infringed? Or was the breach merely transient or trivial in its impact? These are among the questions that fall for consideration in this inquiry.

65Again, there is a spectrum to be examined. The impact of the breach may range from fleeting to technical to profoundly intrusive. The more serious the impact, the greater the risk the admission of the evidence may signal to the public that Charter rights are of little actual avail to citizens, breeding public cynicism and bringing the administration of justice into disrepute. Grant, at para. 76.

66Determining the seriousness of the infringement requires an examination of the interests engaged by the infringed right and the degree to which the violation impacted on those interests. The more serious the incursion, the greater the risk the admission of the evidence would bring the administration of justice into disrepute. For example, the interests engaged when an accused person’s rights to silence and to chose whether or not to speak to authorities all stem from the principle against self-incrimination. An unreasonable search may impact on the protected interest of privacy and human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not. Grant, at para. 77 and 78.

67Because the interest engaged by the right to counsel, including the right to silence and to obtain legal advice is a most important right to a detained person, the breach was neither technical nor trifling.

68How important was the Charter protected right? The Crown characterized the statement as basically exculpatory except for the end. I disagree. The statement evolves into a confession in the eyes of P.C. McKean. I agree with his assessment. By the end of the statement, the applicant has made significant admissions. That makes the statement inculpatory when viewed as a whole.

69I find the second branch favours exclusion.

Society’s Interest in an Adjudication of the Merits

70The final avenue is society’s interest in an adjudication on the merits. Society generally expects criminal allegations will be tried on their merits. The question is whether the truth-seeking function of the criminal trial process would be better served by the admission or exclusion of the evidence, reflecting society’s “collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to law.” In assessing whether the evidence should be admitted, the court must consider not only the negative impact of admission on the repute on the administration of justice but the impact of failing to admit it. Grant, at para. 79.

71The view that reliable evidence is admissible regardless of how it was obtained is inconsistent with the Charter’s affirmation of rights. However, public interest in truth-finding remains a relevant consideration and the reliability of the evidence is an important consideration in this line of inquiry. Excluding relevant and reliable evidence may undermine the truth-seeking function and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute. Those considerations must be weighed against factors favouring exclusion in order to “balance the interests of truth with the integrity of the justice system.” A court must ask whether excluding the evidence, extracts too great a toll on the truth seeking function. Grant, at para. 81 and 82. Society’s interest in an adjudication on the merits is seriously undercut where highly reliable and important evidence is excluded. R. v. Blake (2010), 2010 ONCA 1, 251 C.C.C. (3d) 4 (Ont. C.A.), at para. 31.

72The importance of the evidence to the prosecution’s case is another factor that may be considered. Admitting evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the prosecution’s case. Excluding highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy guts the prosecution. Grant, at para. 83.

73The seriousness of the offence, while a relevant consideration cuts both ways. Failing to prosecute serious charges may have an immediate impact on how citizens view the justice system. However, it is the long-term repute of the administration of justice that is the focus of s. 24(2). While the public has a vital interest in seeing determinations on the merits, the public also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes are high for the accused. Grant, at para. 84.

74Here, the evidence sought to be admitted by the Crown is not like the fruits of a search without which the prosecution does not have a case. This is an inculpatory statement the Crown seeks to introduce as part of its case. Without the statement, the Crown still has a case to present. I also consider and accept Ms. Prenger’s submission that the statement will provide relevant evidence in assessing whether the Crown has established Ms. Theoret’s guilt beyond a reasonable doubt. It would assist in the truth seeking function.

75The charges are fairly serious in the scheme of all criminal offences.

76Because the evidence is a statement and has been found to be voluntary, on the basis of that consideration alone and subject to further evidence, it could be reliable evidence for the trier or fact to consider. However, the Supreme Court of Canada has held that statements obtained where a detainee has not had access to a lawyer may be based more on a misconceived idea of how to get out of their predicament than truth. Grant, at para. 97.

77In all the circumstances, I find there is greater risk the admission of this evidence would bring the administration of justice into disrepute. In the result, the third category favours exclusion, but barely.

Balancing the Factors

78The three avenues of inquiry provide trial judges with a decision tree. Grant, at para. 86. Having examined the three lines of inquiry, the judge determines whether, on balance, the admission of the evidence would bring the administration of justice into disrepute. Grant, at para. 85. There is no overarching rule how the balance is to be struck; mathematical precision is not possible. Grant, at para. 86.

79In Harrison, at para. 36, McLachlin C.J.C. set out the approach as follows:

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

80Applying Harrison, I find the evidence should be excluded. All three lines of inquiry lead to the exclusion of the evidence, although the third by a very slim margin. Weighing the evidence on each line, I conclude the applicant has established that admitting the evidence would bring the administration of justice into disrepute.

Conclusion

81The evidence is excluded.

Durno J.

Footnotes

1. 1R. v. Blake, (2011), 2010 ONCA 1, 251 C.C.C. (3d) 4, at para. 25.