COURT FILE NO.: CR-12-40000365 DATE: 20140916
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
ALLANNAH MIHM AND PAUL STORNELLI
Counsel: John Rinaldi, for the Crown Jessyca Greenwood, for the accused, Allannah Mihm Ed Schofield, for the accused, Paul Stornelli
HEARD: April 2-5, 2013
BEFORE: K.L. Campbell J.
Pre-Trial Ruling: Admissibility of Oral Utterance by the Accused
A. Overview
[1] The two accused, Allannah Mihm and her father Paul Stornelli, pled not guilty to ten charges flowing from the results of a search warrant executed at their home, located on St. Clarens Avenue in Toronto, on August 30, 2011. First, the police encountered Mr. Stornelli and detained him in anticipation of the search. The police then attended at his home. Almost immediately upon entering the residence, the police placed Ms. Mihm under arrest. The police quickly secured the premises by ensuring that there were no other people in the residence. Then, while continuing to detain the two accused, the police searched the premises. They were looking for a firearm.
[2] Approximately 35 minutes after first entering the residence, and during the course of their execution of the search warrant, the police discovered a briefcase located behind a sofa in the living room containing a loaded .22 calibre firearm, a second handgun with a sealed barrel, ammunition, nine different doctor’s drug prescription pads (some with handwriting), approximately $58,000 in bundled cash, and hundreds of tablets of oxycodone.
[3] Immediately upon the discovery of this briefcase of contraband, both of the accused were arrested for a number of alleged offences, including offences related to the firearm, the ammunition, and the oxycodone. They were both advised of their right to counsel under s. 10(b) of the Charter, and cautioned not to say anything until they had spoken to a lawyer. Upon being advised of her right to counsel, Ms. Mihm confirmed that she understood her rights. When asked if she wished to immediately contact a lawyer, Ms. Mihm said: “I use it for protection,” apparently referring to the gun in the briefcase. At that point, Mr. Stornelli turned to his daughter and, under his breath, told her to “shut up.” When the question was posed again as to whether she wished to call a lawyer immediately, Ms. Mihm replied in the affirmative.
[4] The Crown seeks to tender the oral utterance allegedly made by Ms. Mihm, after being advised of her right to counsel, in which she indicated: “I use it for protection.” The Crown contends that the statement is admissible. More particularly, the Crown argues that the statement: (1) is relevant and probative on the issue of Ms. Mihm’s knowledge of the contents of the briefcase and her alleged possession of its contents; (2) was voluntarily made to the police as a spontaneous utterance after she was fully and properly advised of her right to counsel; and (3) to the extent that there was any potential breach of s. 10 of the Charter, the utterance should nevertheless be admissible under s. 24(2) of the Charter.
[5] Counsel for Ms. Mihm, on the other hand, contends that this alleged utterance by the accused was not voluntarily provided, and only obtained by the police following breaches of ss. 7, 10(a), and 10(b) of the Charter. Accordingly, the statement should be excluded under s. 24(2) of the Charter.
[6] At the conclusion of the evidentiary voir dire conducted in relation to this blended joint application by the Crown and Ms. Mihm (the co-accused Mr. Stornelli played no part in the hearing), and after hearing the submissions of counsel, I determined that the oral utterance allegedly made by Ms. Mihm was admissible. I indicated that I would subsequently provide reasons in support of that conclusion. These are those reasons.
B. The Background Facts
1. Introduction
[7] While the parties advance starkly different positions in relation to the appropriate inferences to be drawn and the legal analysis to be undertaken in consideration of the admissibility of the alleged oral utterance by Ms. Mihm, there is little controversy over the basic facts leading up the utterance. The voir dire proceeded on the viva voce evidence of three Toronto Police Service (TPS) officers who were involved in the execution of the search warrant on the evening of August 30, 2011, and who dealt personally with the accused while they were in police custody. The accused did not testify. The relevant facts are as follows.
2. The Detention of Mr. Stornelli
[8] Once the police obtained the search warrant for the premises of the accused and were preparing for its execution, Mr. Stornelli was observed leaving the premises with another male, and driving away in a motor vehicle. Shortly thereafter, the police stopped the vehicle and detained Mr. Stornelli. He was advised that they had a search warrant for his house, and that he would be returned home for the execution of the warrant. Given the physical disabilities of Mr. Stornelli, he was placed in a police van and then transported home by Det. Jacobs.
3. The Initial Police Entry of the Residence
[9] Det. Jacobs and Cst. Daniels were two of the first officers to enter the premises of the accused. They knocked on the door at 6:27 p.m. on August 30, 2011, and yelled “Police – Search Warrant.” Both officers were wearing ballistic vests that clearly identified them as police officers. Ms. Mihm answered the door. The police officers identified themselves, presented their badges and their warrant card identification, and told Ms. Mihm that they were there to execute a search warrant. Accordingly, from the outset, Ms. Mihm knew the specific reason for the attendance of the police at her home.
[10] The first few officers inside the residence did not have the search warrant in their possession, but Ms. Mihm did not ask to see the search warrant. In any event, within a minute or two of entering the residence, Cst. Lionti arrived at the residence with a copy of the search warrant.
[11] Det. Jacobs entered the premises and immediately began walking around the house in order to secure the premises. Most of the other five or six officers who attended at the residence to assist in the execution of the warrant were similarly engaged. They were concerned about officer safety as they were looking for a firearm, and were not sure who else might be in the premises. It was a potentially dangerous situation and the officers wanted to ensure that no one else was in the home. Ms. Mihm had advised the police that she was home alone, but the police wanted to check for themselves. Det. Jacobs quickly searched the kitchen and the basement area.
4. The Arrest/Detention of Ms. Mihm
[12] When Cst. Daniels entered the residence, he escorted Ms. Mihm into the living room. He took her by the arm at her elbow, and he walked her down the hallway to the living room. Cst. Daniels testified that he told her, almost immediately, that she was under arrest. He did not tell her why she was under arrest, and Ms. Mihm did not ask. Cst. Daniels explained that, at that point, it was a “safety issue” with the possibility of a firearm in the house, and he wanted to detain Ms. Mihm in the house.
[13] Cst. Daniels did not at that point advise Ms. Mihm of her right to counsel under s. 10(b) of the Charter, nor did he caution her or advise her of her right to remain silent. Cst. Daniels explained that, while he understood that normally persons under arrest are entitled to be advised of their rights, he did not do so at that point as there were “officer safety concerns” and they were trying to secure the house. There was just no time to then advise Ms. Mihm of her rights.
[14] When they got to the living room, Cst. Daniels told Cst. Bruno that Ms. Mihm was under arrest, and asked Cst. Bruno to stand with her. Cst. Daniels then went upstairs to assist the other police officers in securing the premises. There were two locked bedroom doors upstairs. Cst. Daniels yelled down for any key to the rooms. When a key was not forthcoming, he kicked open the doors of these two rooms in the interests of officer safety. There was no one inside either of these rooms.
[15] When Cst. Daniels returned downstairs, Ms. Mihm inquired as to what they were doing in the house, and he replied that they had a search warrant, and were looking for a firearm, and that she was detained. At that point, Cst. Daniels asked her who she was, and Ms. Mihm verbally identified herself. At that time, Ms. Mihm was upset about the police being there, but she appeared to understand what was happening.
5. Reviewing the Search Warrant Materials
[16] Once the house was “cleared” and secured by this quick search of the premises, Mr. Stornelli was brought into the house. He had been outside in a police van. This took some time given his physical disabilities. Once Mr. Stornelli was inside the residence, he and his daughter, Ms. Mihm, were directed to sit down on the couch in the living room.
[17] When Cst. Lionti entered the premises, he went into the living room, where the two accused were seated, and he gave Mr. Stornelli a copy of the search warrant and the information to obtain the warrant. Mr. Stornelli appeared to review the documents, and he then passed them to his daughter. Neither of the accused had any questions about these search warrant materials. Cst. Lionti then helped search the kitchen area of the premises.
6. The Search of the Living Room – Finding the Briefcase of Contraband
[18] Shortly thereafter, at approximately 6:45 p.m., Cst. Lionti moved the two accused from the living room into the adjoining kitchen area, where they sat together on two chairs provided to them. They were removed from the living room so that the police could conduct a more extensive search of the living room. While he was in the kitchen with the two accused, Cst. Lionti noted their identifying particulars, including their respective dates of birth, and some physical descriptors, but the officer did not ask either of the accused any questions in connection with the police investigation. Cst. Lionti agreed that given that the residence had been secured by this point, there was no reason why he could not have then advised the two accused of their rights to counsel and their rights to remain silent.
[19] At approximately 7:02 p.m., Cst. Daniels found a black briefcase behind the back of a sofa. He pulled it out from under the sofa, put it on a table, and opened it up. Inside the briefcase there were two firearms (one black, and a smaller silver one in a holster), a pouch with small pharmacy bottles of pills (some labeled), and three large stacks of money (one with an American bill on top and the two others with $100 Canadian bills on top). In the pocket in the top of the briefcase there was an envelope with some “prescription pads.” There was also a clear container with some ammunition inside.
[20] At that point, Cst. Daniels announced to the other police officers in the house that he had found firearms in the briefcase. Cst. Daniels then advised Cst. Lionti, who was in the kitchen next to the two accused about five feet away, that two firearms, ammunition, money, and a bottle of “oxys” had been found in the briefcase, so that Cst. Lionti could provide the accused with their rights to counsel.
7. The Rights to Counsel – The Spontaneous Utterance by Ms. Mihm
[21] When Cst. Daniels advised him of the contents of the briefcase, Cst. Lionti immediately advised the two accused of their constitutional rights. At this point, the accused were sitting in the kitchen side-by-side. Cst. Lionti employed the standard “right to counsel” information from his police Memo Book. Cst. Lionti testified that he started this process at approximately 7:02 p.m.
[22] First, he spoke directly to Mr. Stornelli. Cst. Lionti advised him that he was under arrest for the offences of “possession for the purpose” regarding oxycodone, possession of proceeds of crime regarding the money, possession of a restricted weapon, possession of ammunition, and careless storage of ammunition.
[23] Cst. Lionti then read Mr. Stornelli the details of his rights to counsel as guaranteed by s. 10(b) of the Charter. These details included the right to retain and instruct counsel without delay, the right to telephone any lawyer Mr. Stornelli wished, the right to free legal advice from a legal aid lawyer, and the right to apply for assistance from the Ontario Legal Aid program if he was charged with any offence. Cst. Lionti also provided Mr. Stornelli with a specific 1-800 phone number by which he could obtain immediate free legal advice from Legal Aid duty counsel.
[24] Once Cst. Lionti finished providing Mr. Stornelli with his rights to counsel from his Memo Book, he asked Mr. Stornelli if he understood. Mr. Stornelli replied: “It’s my mother’s money, she died.” Cst. Lionti ignored that response and asked again if he understood his rights, and this time Mr. Stornelli replied in the affirmative. Cst. Lionti then inquired whether he wanted to “call a lawyer now,” and Mr. Stornelli indicated that his lawyer was “Ed Schofield.” Cst. Lionti then indicated that they would call Mr. Schofield at the police station when he had “some privacy.” Cst. Lionti then told Mr. Stornelli “not to say anything until he speaks to his lawyer.” At that point both Mr. Stornelli and Ms. Mihm nodded their heads, indicating their understanding of the caution not to say anything until Mr. Stornelli spoke to his lawyer.
[25] Cst. Lionti then addressed Ms. Mihm. He told her that she was under arrest for the same charges. Cst. Lionti actually repeated the same list of charges that he had mentioned to Mr. Stornelli. Cst. Lionti then advised Ms. Mihm of her right to counsel as guaranteed by s. 10(b) of the Charter. In this regard, Cst. Lionti repeated the same process he had just gone through with Mr. Stornelli, again employing the right to counsel details outlined in his Memo Book. During this process, Ms. Mihm appeared to listen and understand what Cst. Lionti was telling her.
[26] After he had concluded advising Ms. Mihm of her right to counsel in this way, Cst. Lionti asked her if she understood, and she replied affirmatively. Cst. Lionti then asked her: “Do you wish to call a lawyer now?” In response to this question, Ms. Mihm said: “I use it for protection.” At that point, Mr. Stornelli turned to Ms. Mihm and, under his breath, told her to “shut up.”
[27] Cst. Lionti realized that the comment by Ms. Mihm, “I use it for protection,” was not in response to his question as to whether she wanted to call a lawyer, but that was her clear and unprompted utterance at the time. Cst. Lionti ignored her comment, and did not ask her about what she meant, because he wanted her to talk to a lawyer before she said anything else. Accordingly, Cst. Lionti simply repeated the question: “do you wish to call a lawyer now?” and Ms. Mihm responded: “yeah.” Cst. Lionti subsequently recorded this comment by Ms. Mihm, verbatim, in his police notebook, as indicated by the quotation marks that he used around the recorded substance of the comment.
[28] Cst. Lionti did not provide Ms. Mihm with any further “cautions” in relation to making statements to the police as, when he had told Mr. Stornelli not to say anything until they had spoken to a lawyer, she had nodded indicating that she understood the cautions that had just been provided to Mr. Stornelli.
[29] That concluded their exchange. Cst. Lionti stayed in the kitchen with the two accused until approximately 7:30 p.m., when Cst. Gardner, a female police officer, attended at the residence to pick up Ms. Mihm and transport her back to the police station.
[30] Subsequently, the officers continued their investigation at the premises, including taking photographs of the “scene of the crime.” The police left the accused’s premises at approximately 8:21 p.m. on August 30, 2011.
8. The Subsequent Events at the Police Station
[31] Cst. Daniels arrived back at the 13 Division police station at approximately 8:45 p.m. At that point, he dealt with the inventory of the seized property to ensure that it was properly and securely stored. This took some time. The inventory included the Jennings J22 semi-automatic handgun with rounds, the Walter P225 black semi-automatic gun with a sealed barrel, a magazine with ammunition, and the remaining contents of the briefcase.
[32] Cst. Daniels then tried to make arrangements for the accused to speak to a lawyer. First, at 9:16 p.m., Cst. Daniels tried to contact Mr. Stornelli’s requested lawyer, and left a message. When this proved unsuccessful, Cst. Daniels took steps to put the two accused in touch with duty counsel. More specifically, Cst. Daniels contacted duty counsel at 10:28 p.m., and left a message, and the call was returned at 10:35 p.m., at which point Ms. Mihm was permitted to speak privately with duty counsel.
9. No Threats, Promises or Inducements
[33] The evidence of all of the police officers was uniformly to the effect that from the outset of their dealings with the two accused, there were never any threats, promises, or inducements of any kind from any person in authority to either accused. Indeed, at no point did any officer seek to elicit any statement from either accused. Ms. Mihm was not even the “target” of the search. At no point was Ms. Mihm ever physically assaulted or abused by any police officer. There was never any swearing or yelling by the police. Further, according to the testimony of the police officers, the two accused appeared to understand the reason for the arrival of the police and, while not happy about the execution of the search warrant in their premises, neither accused raised any issue or complaint about the conduct of the police at any point.
C. The Positions of the Parties
1. The Position of the Defence
[34] Ms. Greenwood, on behalf of Ms. Mihm, argued that as the accused was detained and/or arrested as soon as the police entered the premises shortly after their arrival at 6:27 p.m., and yet she was not told of the reasons for her arrest or detention or advised of her right to counsel until after the discovery of the contents of the brief case at approximately 7:02 p.m., the police violated the accused’s rights under ss. 7, 10(a), and 10(b) of the Charter.
[35] Defence counsel argued that there was no basis for her initial arrest or detention, and as the residence was quickly secured by the police, there was no justification for this more than 35 minute delay by the police in advising Ms. Mihm of her constitutional rights. Defence counsel argued that, in any event, the utterance of Ms. Mihm was not provided voluntarily, but rather was obtained in violation of her right to remain silent.
[36] Ms. Greenwood also relied upon the fact that Ms. Mihm did not actually get to consult with a lawyer until approximately 10:35 p.m. as further evidence that the investigating police officers conducted themselves with little regard for the constitutional rights of the accused.
2. The Position of the Crown
[37] Mr. Rinaldi, on behalf of the Crown, fairly conceded that the police ought to have advised Ms. Mihm of her constitutional rights much earlier, as soon as the residence had been “cleared” and secured by the police. The Crown argued that notwithstanding this violation of Ms. Mihm’s Charter rights, the evidence of her spontaneous utterance, claiming that she used the firearm for protection, should still be admissible as evidence.
[38] In this regard, the Crown argued that the police never sought to obtain any statement from Ms. Mihm who was never a target of the search, and that the violation of her Charter rights was not willful or reckless, but simply an oversight.
[39] Moreover, the Crown contended, as the accused made this statement spontaneously after she was advised of her rights under the Charter, this evidence would inevitably have been discovered by the police in any event.
D. Analysis
1. Voluntariness – The Right to Remain Silent – [Section 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter of Rights](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
[40] While Ms. Greenwood focused most of her arguments concerning the admissibility of Ms. Mihm’s oral utterance upon the alleged violations of the accused’s constitutional rights under ss. 10(a) and (b) of the Charter, she also advanced the argument that the Crown had failed to establish that Ms. Mihm’s utterance was voluntary. Defence counsel also alleged that the involuntary utterance by Ms. Mihm was heard by the police in violation of her right to remain silent protected by s. 7 of the Charter.
[41] I am satisfied, however, that the Crown has established, beyond any reasonable doubt, that the brief oral utterance allegedly made by Ms. Mihm, after being advised of her rights to counsel, was made voluntarily by Ms. Mihm. I am also satisfied that there was no violation of Ms. Mihm’s right to remain silent in the circumstances of this case.
[42] As I have already indicated, the testimony of the police officers on this pre-trial motion was to the effect that there were no threats, promises, or inducements of any kind emanating from any person in authority in relation to Ms. Mihm (or Mr. Stornelli for that matter). No police officer ever physically assaulted or intimidated Ms. Mihm, or even spoke directly to her with a raised voice during the relatively brief period of time she was detained in police custody in her residence while the police executed their search warrant. Indeed, on the testimony of all of these police officers, at no point during their interactions with Ms. Mihm, did any person in authority try to elicit any statement from Ms. Mihm. According to the police officers, Ms. Mihm was simply not the “target” of the search. Rather, it was Mr. Stornelli who the investigating police officers believed was involved in the unlawful possession of the firearm. To the police officers, Ms. Mihm was simply someone who happened to be in the residence when the police went there to execute their search warrant.
[43] There is simply nothing in the evidence adduced on the voir dire that could realistically cast any potential doubt on the voluntariness of the utterance by the accused. Rather, it is apparent that Ms. Mihm made the comment freely. Moreover, she only chose to make this comment after she had been told of the reason for her arrest, the pending charges against her, the details of her right to counsel, and had heard the usual caution in relation to her right to remain silent and making any statement to the police (i.e. like her father, Ms. Mihm nodded in understanding when Mr. Stornelli was cautioned in this regard).
[44] In any event, as I have indicated, I am satisfied beyond any reasonable doubt that the oral utterance made by Ms. Mihm was made voluntarily, as that term has been explained in the jurisprudence, and not in violation of her right to remain silent under s. 7 of the Charter. See: R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, at pp. 164-173, 181-186; R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at pp. 22-45, 60-61; R. v. Singh, 2007 SCC 48, [2007] 3 SCR 405, at paras. 27-40.
2. [Sections 10(a)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) and (b) of the [Charter of Rights](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
[45] According to ss. 10(a) and 10(b) of the Charter, everyone has the right on arrest or detention “to be informed promptly of the reasons thereof” and “to retain and instruct counsel without delay and to be informed of that right.” These two constitutional rights are closely linked. One of the important reasons the police are required to inform a person of the reasons for their detention or arrest is to permit that person to make an informed choice as to whether they wish to exercise their right to counsel, and to permit them to secure sound legal advice based on an accurate understanding of the extent of their potential jeopardy. See: R. v. Black, 1989 75 (SCC), [1989] 2 S.C.R. 138, at pp. 152-153; R. v. Smith, 1991 91 (SCC), [1991] 1 S.C.R. 714, at p. 728; R. v. Borden, 1994 63 (SCC), [1994] 3 S.C.R. 145, at p. 166.
[46] Significantly, in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 2, 37-42, the Supreme Court of Canada held that the “right to counsel” duties that are imposed upon the police by s. 10(b) of the Charter are triggered immediately upon an arrest or detention. The court held, in short, that the phrase “without delay” in s. 10(b) means “immediately.” In the result, upon any detention or arrest, the informational duty and implementation obligation cast upon the police must be immediately executed. This is so, as the court in Suberu explained, because concerns over compelled self-incrimination and interferences with individual liberty are triggered as soon as a citizen is detained or arrested, and citizens must accordingly be protected. The Supreme Court held that the immediacy of the obligation cast upon the police is subject only to concerns for officer or public safety, or reasonable limits that are prescribed by law and justified under s. 1 of the Charter.
[47] In my view, in the circumstances of the present case, the police effectively complied, in a timely way, with their obligations to advise Ms. Mihm of the reasons for her arrest or detention as required by s. 10(a) of the Charter, but did not properly fulfill their constitutional obligations under s. 10(b) of the Charter to ensure that Ms. Mihm was informed of her right to counsel in a timely way.
[48] While Cst. Daniels testified that he placed Ms. Mihm “under arrest” shortly after the police entered the residence, his apparent intention was simply to detain her securely while the search warrant was executed and the police searched for the presence of an unlicensed firearm in the home. After all, at the time, Cst. Daniels simply had no grounds to arrest her. Needless to say, while Cst. Daniels was entitled to detain Ms. Mihm for the purpose of securing the residence, he should not have initially told her that she was “under arrest.”
[49] Cst. Daniels explained that he did not immediately explain to Ms. Mihm why she was being arrested, as there was an “officer safety issue” given that the police were searching for a firearm. Cst. Daniels understood that, normally, arrested individuals are entitled to be advised of their rights, but he explained that there was simply no time to do so when they were trying to secure the premises. I accept his evidence in this regard. Moreover, in my view, in all of the circumstances of this case, it was open to him to temporarily delay complying with his obligations to “promptly” inform Ms. Mihm of the reasons for her arrest and advise her “without delay” of her rights to counsel. As the Supreme Court of Canada held in Suberu, at para. 42, even the obligation of the police under s. 10(b) of the Charter to “immediately” advise all arrested or detained individuals of their right to counsel is “subject to concerns for officer and public safety.” [emphasis added].
[50] There came a point in time, however, not long after the police first entered the premises, when the police had “cleared” and effectively secured the premises. At that point, the police were obliged to meet their obligations under ss. 10(a) and 10(b) of the Charter.
[51] In my view, Cst. Daniels took the necessary steps to comply with the obligations cast upon the police by s. 10(a) of the Charter. When Cst. Daniels came back downstairs after the residence was secure, he reminded Ms. Mihm that the police were in the house pursuant to a search warrant and that they were looking for a firearm, and he told Ms. Mihm that she was “detained.” In so doing, Cst. Daniels effectively clarified that Ms. Mihm was detained (as opposed to being under arrest), and he advised her of the reasons for her detention, namely, that the police were in the residence in order to execute the search warrant. As Cst. Daniels advised Ms. Mihm of the reasons for her detention as soon as the house was secure and there were no further concerns for officer safety, it seems to me that the police complied with their obligation under s. 10(a) of the Charter. In other words, Ms. Mihm was advised of the reasons for her detention immediately after there were no longer any concerns for officer safety.
[52] It was also at this point in time, however, that the police were obliged to comply with their advisory obligations regarding the right to counsel pursuant to s 10(b) of the Charter. At a minimum, these important obligations ought to have been discharged when Mr. Stornelli was brought into the house and seated by Ms. Mihm in the living room of their home. However, it was not. In failing to promptly and fully honour those obligations, and inform Ms. Mihm of her right to retain and instruct counsel as soon as the house was secure, the constitutional rights of Ms. Mihm under s. 10(b) of the Charter were breached.
3. The Admissibility of the Statement Under s. 24(2) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
a. Introduction
[53] As Ms. Mihm made her comment about having the gun for protection after the investigating police officers violated her constitutional rights under s. 10(b) of the Charter, the next step is to determine the admissibility of her utterance under s. 24(2) of the Charter. This requires a contextual, case-specific factual inquiry into whether the admission of the evidence that was “obtained in a manner” that violated the Charter rights of the accused would bring the administration of justice into disrepute. See: R. v. Goldhart, 1996 214 (SCC), [1996] 2 S.C.R. 463; R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235; R. v. Manchulenko, 2013 ONCA 543, 301 O.R. (3d) 182, at paras. 68, 71-73, 76, 88-93. Needless to say, I am satisfied the evidence was “obtained in a manner” that infringed the Charter. The scope of application of s. 24(2) was summed up in R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, at para. 47, as follows:
Generally speaking, so long as it is not too remotely connected with the violation, all the evidence obtained as part of the “chain of events” involving the Charter breach will fall within the scope of s. 24(2). This means that in the initial inquiry under s. 24(2) as to whether evidence has been “obtained in a manner that infringed or denied” Charter rights, courts should take a generous approach. However, it should be borne in mind that the presence and strength of the causal connection between the evidence and the Charter breach may be a factor for consideration under the second, more important, branch of s. 24(2).
[54] According to 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, there is a three-pronged test to be applied. The court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. In undertaking this three-pronged analysis, however, the court must conduct this balancing assessment considering all the circumstances of the case. See also: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 45-48; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 80-98; R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, at para. 45-52.
b. The Governing Legal Approach to the Admissibility of Statements
[55] In R. v. Grant, the Supreme Court of Canada discussed, at para. 89-98, the applicable principles relating to the admissibility of statements by an accused under s. 24(2) of the Charter. At the outset of this discussion, the court observed, at para. 89, that statements by an accused engage the fundamental “principle against self-incrimination,” one of the “cornerstones of our criminal law.” The court noted that a number of other common law and Charter-based rules emanate from the principle against self-incrimination, including the confessions rule, the right to silence, the right to counsel, the right of non-compellability, and the rules regarding use immunity. Further, residual protection of the principle against self-incrimination has constitutional underpinnings deriving from s. 7 of the Charter. See also: R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, at para. 2; R. v. White, 1999 689 (SCC), [1999] 2 S.C.R. 417, at para. 44.
[56] The court in R. v. Grant noted, at para. 90, that the common law voluntariness rule concerning the admissibility of confessions provides a “significant safeguard” against the “improper use” of such statements when made to persons in authority. It is only where such statements survive scrutiny under the confessions rule that potential exclusion under s. 24(2) of the Charter need be considered, most commonly as a result of a violation of the additional protections under s. 10(b) of the Charter.
[57] In R. v. Grant, the court commented, at para. 91, that while there is “no absolute rule of exclusion” of Charter-infringing statements under s. 24(2) such as there is under the voluntariness rule, there has been a tendency, as a matter of practice, to exclude statements obtained in breach of the Charter. Moreover, the court confirmed, at para. 92, that the “three lines of inquiry” under s. 24(2) of the Charter as articulated in Grant, “support the presumptive general, although not automatic, exclusion of statements obtained in breach of the Charter.” More particularly:
Seriousness of the Charter-Infringing Conduct: Under the first inquiry, namely, the seriousness of the Charter-infringing state misconduct, the court in Grant noted, at para. 93-94, that the focus is on whether the admission of the statement would harm the repute of the administration of justice by “associating the courts with illegal police conduct.” The court noted that police conduct in “obtaining statements” has “long been strongly constrained” in an effort to preserve public confidence in the justice system by requiring the police to adhere to the Charter. The court also noted that the negative impact on the justice system in admitting evidence obtained through “police misconduct” increases with the seriousness of the violation, and that condoning “serious police misconduct” is more harmful to the repute of the administration of justice than the “acceptance of minor or inadvertent slips.”
Impact on Charter-Protected Interests: Under the second inquiry, namely, the impact on the Charter-protected interests of the accused, the court in Grant commented, at para. 95, that there must be an assessment of the impact of the Charter violation on the protected interests of the accused. The greater the impingement on the protected interests, the greater the potential harm to the repute of the administration of justice by the admission of the evidence. The court commented that the failure to properly advise the accused of the right to counsel undermines the right to make a “meaningful and informed choice” whether to speak to the police, the right to remain silent, and the protection against testimonial self-incrimination. These rights protect an individual’s interest in “liberty and autonomy.” The violation of these fundamental rights “tends to militate in favour of excluding the statement.”
Importantly, the court in Grant noted, at para. 96, that there may be circumstances that “may attenuate the impact of a Charter breach” on the accused’s “protected interests.” If compliance with s. 10(b) of the Charter, for example, was merely “technically defective” at either the informational or implementation stage,” the impact on the interests of the accused in making an informed choice as to whether or not to speak to the police may be reduced. Similarly, when a statement is made “spontaneously” following a Charter breach, or where it can confidently be concluded that the statement by the accused would have been made notwithstanding the violation of the Charter, the impact of the breach on the protected interests of the accused may be reduced. See, for example: R. v. Harper, 1994 68 (SCC), [1994] 3 S.C.R. 343. However, in the absence of such exceptional circumstances, the analysis under this second line of inquiry supports the general exclusion of statements taken in breach of the Charter.
Societal Interest in a Fair Adjudication on the Merits: Under the third inquiry, namely, society’s interest in a fair adjudication on the merits, the court in Grant, at para. 97, noted that the reliability of the evidence is a consideration. Statements taken in contravention of the Charter may, on occasion, be just as unreliable as involuntary statements. In this regard it should be recognized that individuals detained by the police, without counsel, may make untruthful statements based more on a “misconceived idea” of how to extricate themselves from their “predicament” with the police. Where this danger is present, it undercuts the argument that the “illegally obtained statement,” taken in violation of the Charter, is “necessary for a trial of the merits.”
[58] In conclusion, the Supreme Court of Canada in R. v. Grant stated, at para. 98, that the “heightened concern” with “proper police conduct” in obtaining statements from suspects, and the “centrality of the protected interests affected” will “in most cases” favour the exclusion of statements taken in breach of the Charter, while the third factor which focuses on obtaining a decision on the merits may be reduced by a lack of reliability. This analysis, in combination with the common law’s “historic tendency” to view the admissibility of statements by an accused differently from other evidence, explains why such statements “tend to be excluded” under s. 24(2) of the Charter.
c. The Application of the Governing Principles in the Present Case
1. Introduction
[59] The practical application of these principles, in the circumstances of the present case, leads me to conclude that the evidence of the spontaneous utterance made by Ms. Mihm to the police is admissible under s. 24(2) of the Charter. While statements by an accused are presumptively excluded following Charter violations, the unusual circumstances surrounding the oral utterance of Ms. Mihm brings this case within the recognized exception to this general rule, and renders the utterance admissible under s. 24(2) of the Charter.
2. The Seriousness of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)-Infringing Misconduct
[60] The violation of s. 10(b) of the Charter was relatively serious. In my view, the police ought to have complied with their advisory obligations under s. 10(b) of the Charter of Rights as soon as the house was secure and there were no further concerns over officer safety. The police could easily have complied with these obligations when Mr. Stornelli was brought into the house and seated with Ms. Mihm in the living room of their home, before the police began to search the premises.
[61] At the same time, however, no police officer was trying to elicit any kind of statement or utterance from Ms. Mihm. This was not at all a case where the police deliberately held off advising the accused of his or her rights to counsel in order to question the accused and secure some type of inculpatory statement or utterance from the accused. Rather, it appears that the police did not advise Ms. Mihm of her rights under s. 10(b) of the Charter in a more timely way as they had no plans to question her, and they were focused on fulfilling their obligations in the execution of the search warrant.
[62] While this explanation does not serve to wholly justify the police failure to abide by their constitutional obligations under s. 10(b) of the Charter, it does ameliorate the gravity of the “police misconduct” in this case. In short, the impugned police conduct in delaying compliance with the Charter, was not any kind of deliberate or wilful violation of the constitutional rights of the accused. Moreover, I am satisfied that the police officers in the present case were acting honestly and in good faith.
[63] While the police did not properly fulfill their fundamental obligations to adhere to the Charter, their delayed compliance with their duties under s. 10(b) was not deliberate, nor was it aimed at eliciting any kind of statement from the accused. For this reason, in considering the seriousness of the Charter-infringing state misconduct, the admission of the utterance by Ms. Mihm would not undermine the repute of the administration of justice by “associating the courts with illegal police conduct.” Overall, in my view this first consideration regarding the seriousness of the Charter-infringing conduct by the police tends, albeit only slightly, to favour the exclusion of the evidence.
3. The Impact on the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)-Protected Interests of the Accused
[64] In considering the second prong of the analysis under s. 24(2) of the Charter, in my opinion, the police violation of s. 10(b) of the Charter, in delaying full compliance with the informational aspect of that constitutional guarantee cannot be said to have had any significant impact upon the Charter-protected interests of Ms. Mihm.
[65] In this regard, it is critical to appreciate that the utterance by Ms. Mihm was made only after she was fully and properly informed of the reasons for her arrest, the pending charges against her, and all of the details of her right to counsel. Indeed, Ms. Mihm actually heard all of the details of the arrest, charges and counsel rights twice – once when they were fully explained to Mr. Stornelli, right in front of her, and then again when they were repeated to her directly. Importantly, it was only after twice hearing all of these Charter-compliant details of their arrest and rights to counsel that Ms. Mihm made her utterance.
[66] In other words, the violation of Ms. Mihm’s Charter rights was not that the police failed to advise her of her right to counsel, but rather that the police did not advise her of her right to counsel “without delay.” The Charter violation by the police was simply a matter of timing. This is not meant to in any way diminish the importance of timely compliance with Charter requirements by the police, but rather only to illustrate that the unconstitutional delay had no impact on Ms. Mihm’s utterance.
[67] Indeed, the single, brief utterance to the police by Ms. Mihm was the epitome of an entirely voluntary and spontaneous utterance. The police had done nothing to elicit the utterance on the part of Ms. Mihm, but asked only whether she understood her constitutional rights. Ms. Mihm spoke at that time only because she wanted to. Moreover, I am satisfied that, as a matter of fact, Ms. Mihm would have made her comment regardless of whether or not the police had violated her constitutional rights. In such circumstances, as the Supreme Court of Canada indicated in Grant, at para. 96, the impact of the violation of the Charter rights of the accused is greatly reduced.
[68] In my opinion, consideration of this second factor in the governing s. 24(2) analysis strongly supports the admission of the freely given, spontaneous, oral utterance by Ms. Mihm.
4. Society’s Interest in a Fair Adjudication of the Merits of the Case
[69] As to the third avenue of inquiry, the court must determine whether the truth-seeking function of the trial is better served by admission of the evidence, or by its exclusion. The court must consider the impact of the admission of the evidence as well as the impact of failing to admit the evidence. The reliability of the evidence is, of course, an important factor in this step of the analysis. If the Charter violation has undermined the reliability of the evidence, this will support the exclusion of the evidence. However, the exclusion of reliable evidence undermines the accuracy and fairness of the trial from the perspective of the public and may tend to bring the administration of justice into disrepute. The importance of the evidence to the Crown’s case is also a factor to be considered under this aspect of the inquiry. The exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively terminates the prosecution. See: R. v. Grant, at paras. 79-84.
[70] In my view, the truth-seeking function of the trial, and the interest of society in a fair adjudication of criminal charges on their merits, supports the admission of the utterance by Ms. Mihm. The utterance has certain attendant circumstantial guarantees of trustworthiness, is potentially an important piece of evidence in this case, and its admission causes no real unfairness to Ms. Mihm.
[71] In some circumstances, statements by an accused person, obtained by the police following a violation of the accused’s Charter rights may prove unreliable – they may not be true. The courts have recognized that such individuals, especially where they are without the assistance of counsel, may make untruthful statements based on a desire to extricate themselves from their predicament with the police, or in response to pressure. In circumstances where this danger is present, the statement may undermine a fair trial on the merits of the case, given that the Charter violation undermines the reliability of the statement.
[72] In this case, however, there are some circumstantial guarantees of reliability surrounding the utterance made by Ms. Mihm. First, the utterance by Ms. Mihm was offered by her spontaneously and entirely of her own accord. Her utterance was not the result of any subtle pressure, persuasion, or suggestive questioning by the police. Such spontaneous utterances possess an inherent degree of reliability. Voluntary statements are themselves thought to possess some inherent reliability. After all, the historic rationale for the traditional confessions rule was that involuntary statements ought to be excluded because of their potential unreliability, while voluntary statements were admitted because they were viewed as inherently reliable. See, for example: R. v. Warickshall (1783), 168 E.R. 234. Even today, this concern over reliability remains the “primary reason” for the confessions rule. See: R. v. Singh, at paras. 29-30; R. v. Colson, 2008 ONCA 21, (2008), 230 C.C.C. (3d) 250, at paras. 30-34.
[73] But the utterance by Ms. Mihm was far more than just voluntary when measured against the confessions rule. It was a purely spontaneous comment she offered to the police in explanation for the firearm they found in the briefcase. As I have indicated, such comments have an inherent reliability.
[74] Second, as I have already indicated, the utterance by Ms. Mihm was made only after she had been fully and properly advised of the reasons for her arrest and her rights to counsel – twice (and after she had heard the caution about making statements and the right to remain silent). The timing of her utterance illustrates, in my view, that the unconstitutional delay by the police in providing Ms. Mihm with the informational component of s. 10(b) of the Charter did not affect the reliability of the utterance by Ms. Mihm. In other words, any potential unreliability is not the result of any Charter violation.
[75] It is also important to appreciate the potential importance of this evidence in the context of this case. The accused are charged with numerous firearm and illicit drug related crimes. There is a compelling public interest in the fair adjudication of such cases on their merits. The spontaneous, voluntary utterance by Ms. Mihm, apparently provided to explain her possession of the illegal firearm, is potentially a key piece of evidence. This evidence may, for example, go towards establishing that Ms. Mihm knew about the contents of the briefcase, where the firearm was located, and that the firearm belonged to her. Thus, this could potentially be a very important piece of evidence in the trial of the merits of this case. At the same time, notwithstanding the violation of the Charter by the police in their tardy Charter compliance, there is really nothing unfair to Ms. Mihm in permitting the jury to hear of her spontaneous utterance about the firearm.
[76] In any event, as I have indicated, in my opinion the third prong of the governing analysis under s. 24(2) of the Charter weighs in favour of the admission of the evidence of the utterance by Ms. Mihm.
5. Conclusion
[77] There is no overarching rule under s. 24(2) of the Charter that governs how these three factors should be weighed and balanced. Mathematical precision is not possible, but consideration of these factors provides a flexible and helpful decision tree. See: R. v. Grant, at para. 86. The balancing of these three important considerations against the background of all of the circumstances of this case, leads me to the conclusion that the spontaneous utterance of Ms. Mihm is admissible. I note that there are at least two judicial decisions that provide support for this conclusion.
[78] First, in R. v. Y.(N.), 2012 ONCA 745, 113 O.R. (3d) 347, in the context of an appeal by a young person against a conviction for participating in terrorist activities contrary to s. 83.18 of the Criminal Code, the court dealt with the admissibility of a post-arrest interview statement by the accused, which was made following violations of his constitutional rights under ss. 10(a) and 10(b) of the Charter. The trial judge concluded that the police had erred in the manner in which the accused was advised about the reasons for his arrest and detention. Accordingly, when the accused spoke to duty counsel before speaking to the police, he was not aware of the true extent of his jeopardy. Nevertheless, without the benefit of the R. v. Grant decision, the trial judge admitted the videotaped statement of the accused because he was satisfied that it would not impact on the fairness of the trial. The trial judge drew this conclusion because he was satisfied that the accused “would not have acted any differently” in the police interview even if he had known the full extent of his jeopardy and his rights had been “fully respected,” and because the police had not acted in bad faith in violating his rights. In upholding the decision of the trial judge that the admission of the accused’s statement would not bring the administration of justice into disrepute, Blair J.A., delivering the judgment of the court, stated, at paras. 57-60:
Thus, to the extent there ever was one, since Grant there is no general rule that a statement obtained in violation of a Charter right, as in this case, is to be automatically excluded. Indeed, even prior to Grant, the Supreme Court had recognized that there may be circumstances – albeit rare – where, if the statement would have been made in any event, notwithstanding the violation, the impact of the breach may be tempered and the “all-but-automatic exclusion” rule not applied. As the Court noted in Grant, at para. 96: [quotation omitted] …..
Accordingly, just as they were central to the trial judge's analysis under the Collins criteria, the findings that the police violation was inadvertent, that the police acted in good faith, and that the appellant would have acted no differently had the breach not occurred, are central to the Grant analysis as well.
Any Charter violation is serious, but not all violations are equal on the seriousness spectrum. Given the finding that the police violation was inadvertent, that the police acted in good faith, and that the appellant would have acted no differently had the breach not occurred, it cannot be said that the breach here is sufficiently serious that admission of the statement would “send the message the justice system condones serious state misconduct” (the first Grant factor). For similar reasons, the impact of the breach on the Charter-protected interests of the accused is attenuated as well; the impact cannot have been significant if the appellant would have made the statements he made in any event (the second factor). Finally – particularly given the foregoing – society’s interests in having a serious case, such as this case, adjudicated on the merits is high (the third factor).
All of these considerations, taken individually, and balanced and assessed as a whole, weigh in favour of admissibility, in my opinion. The admissibility of the statement would not bring the administration of justice into disrepute.
[79] Similarly, in R. v. Mohamud, 2010 ONSC 5305, [2010] O.J. No. 5047, Pomerance J. considered the admissibility of statements made by an accused at the scene of his arrest, following a violation of his rights by the police in failing to properly provide him with the informational component of s. 10(b) of the Charter. Pomerance J. concluded that this Charter breach was “very serious,” it was not made in good faith, and “strongly favour[ed] exclusion of the evidence.” However, in dealing with the perceived impact of this violation on the Charter-protected rights of the accused, Pomerance J., at paras. 18-22, relying upon R. v. Grant at para. 96, concluded that the statement by the accused was not “causally linked” to the breach, in that his statement was “spontaneous,” not elicited by the police, and uttered of his “own accord” in response to something said by another arrestee. In these circumstances, according to Pomerance J., the link between the breach and the Charter-protected interests of the accused is “attenuated” and the impact of the breach “reduced.” Pomerance J. concluded that in the circumstances of that case, the statement uttered by the accused “would have been made absent the breach” of the Charter in any event. Accordingly, the breach was found to have had “little impact” on the Charter-protected interests of the accused, which weighed “strongly in favour of admission.” Finally, Pomerance J. determined, at paras. 28-29, that there was little risk that the admission of the statement would distort the fact finding process. Rather, the introduction of the statement would likely enhance the truth seeking function of a criminal trial.
[80] I do not mean to suggest that the accused has failed on this application due to a lack of causal connection between the breaches and the statement in question. It is well-established that the wording of s. 24(2) does not connote the need for a relationship of causation between a Charter breach and the obtaining of evidence. See: R. v. Grant, 1993 68 (SCC), [1993] 3 S.C.R. 223, at p. 255; R. v. Therens, [1985] 1. S.C.R. 613, at p. 649; R. v. Strachan, 1988 25 (SCC), [1988] 2 S.C.R. 980, at pp. 1005-1006. As I have previously indicated, I am satisfied the evidence was “obtained in a manner” that infringed the Charter. However, on the facts of this case, I find the accused would not have acted any differently had her rights been fully respected. In addition to the fact that the police violations were inadvertent and in good faith, there is no evidence that Ms. Mihm would not have made the statement absent a breach of her rights under s. 10(b) of the Charter. Indeed, the statement was made after full compliance with the police obligations under that provision. What’s more, the accused never testified on this voir dire to the effect that she would have had a different reaction had she been informed of her rights earlier. See: R. v. Schmautz, 1990 134 (SCC), [1990] 1 S.C.R. 398, at para. 49; R. v. Harper, 1994 68 (SCC), [1994] 3 S.C.R. 343, at para. 17.
E. Conclusion
[81] In the result, as I advised the parties earlier, pursuant to the three-part inquiry under s. 24(2) of the Charter, the evidence of the utterance allegedly made by Ms. Mihm to Cst. Lionti immediately following being advised of her rights to counsel on the evening of August 30, 2011, is admissible as evidence at the trial of this matter.
Kenneth L. Campbell J.
Released: September 16, 2014