ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. O’Leary, 2015 ONSC 1346
COURT FILE NO.: CR14-052
DATE: 20150302
BETWEEN:
Her Majesty the Queen
Mr. M. Martin, for the Crown
- and -
Codi O’Leary
Mr. B. Barrie, for the Defendant
Defendant
HEARD: February 17, 18, 19, 23 and 24, 2015
REASONS FOR DECISION – ADMISSIBILITY OF STATEMENT
Conlan J.
I. Introduction
[1] Mr. O’Leary is being tried before me in Owen Sound, without a jury, on a two-count Indictment.
[2] Count 1 alleges that, on or about January 8, 2013, at the Township of Georgian Bluffs, Mr. O’Leary did operate a motor vehicle in a race with another motor vehicle on a highway, to wit Highway 6 and 21, in a manner that was dangerous to the public and thereby caused the death of Tyler Steven Dodd, contrary to subsection 249.4(4) CCC.
[3] Count 2 alleges that, on the same date and at the same place, Mr. O’Leary committed the same offence and thereby caused bodily harm to Ben Vollering, contrary to subsection 249.4(3) CCC.
[4] On February 17, 18, 19 and 23, 2015, a blended voir dire was held to determine the admissibility of a statement given by the accused to Detective Constable Paddon (“Paddon”) on January 10, 2013.
[5] The Defence takes issue with the voluntariness of that statement.
[6] Further, the Defence has brought an Application which alleges that Mr. O’Leary’s section 10(b) and/or section 7 Charter right(s) was/were violated, and thus, the statement ought to be excluded from the evidence at trial under subsection 24(2) of the Charter.
[7] Both sides have filed Application Records, written arguments and Books of Authorities. Oral submissions by counsel were heard at Court on February 24, 2015.
II. The Facts
[8] It is undisputed that, on January 8, 2013, on a highway in Georgian Bluffs just west of the City of Owen Sound, there was a serious motor vehicle accident.
[9] There was a collision between a car driven by Tyler Dodd and a van being operated by Ben Vollering. The two vehicles were travelling in opposite directions at the time of the accident. Mr. Dodd was driving westbound, away from the City of Owen Sound. Mr. Vollering was driving eastbound, towards the City.
[10] Tragically, Mr. Dodd was killed. Mr. Vollering was seriously injured.
[11] It is undisputed that, at the time of the collision, a car being driven by Mr. O’Leary was in the vicinity and travelling in the same direction as Mr. Dodd – westbound.
[12] It is alleged, but not admitted by the Defence, that Mr. O’Leary and Mr. Dodd were racing. The theory of the Crown is that Mr. Dodd lost control of his motor vehicle during the race and collided with the oncoming van being driven by Mr. Vollering.
[13] At some point, the accused learned about the accident. He heard a radio broadcast that the police were looking for the driver of a light coloured motor vehicle that had been travelling with the car that was involved in the collision.
[14] Mr. O’Leary, in the morning on January 10, 2013, after hearing the radio broadcast on his way to work, attended at the Ontario Provincial Police (“OPP”) detachment in Chatsworth. That is just south of the City of Owen Sound. It is the headquarters for the OPP in Grey County.
[15] Mr. O’Leary was introduced to Paddon. The detective had been working on the case but was not the officer in charge of the investigation.
[16] The OPP had, the day before, issued a media release which said, in part, the following: “Grey County OPP continues to investigate the fatal motor vehicle collision which occurred at approximately 10:15 p.m. last night…Police have obtained video depicting a light coloured vehicle travelling with the deceased’s vehicle just prior to and after the collision. Police would like to speak with the person operating this vehicle or anyone who may have any information regarding the driver and or the vehicle in question”.
[17] After being introduced to Paddon, an audio-video recorded statement followed.
[18] With some pauses and breaks, the interview lasted approximately 65 minutes (less than 40 minutes of actual speaking time). It began just before 8:20 a.m. on January 10, 2013. It concluded at about 9:25 a.m. The transcript of the interview is 58 pages long.
[19] The entire audio-video interview was played in Court during the voir dire.
III. The Burdens and Standards of Proof
[20] The Crown has the burden of proving that Mr. O’Leary’s statement to the police was a voluntary one. That must be proven beyond a reasonable doubt.
[21] The Defence has the burden of proving a Charter violation. And the Defence has the burden of establishing that, if there was a violation, the statement ought to be excluded from the evidence at trial. Those items must be proven by the Defence on a balance of probabilities.
IV. Analysis
The Positions of the Crown and the Defence and the Evidence on the Voir Dire
[22] In a nutshell, the Crown’s position is that the accused was not detained on January 10, 2013; that he therefore could not possibly have had his section 10(b) Charter right to counsel violated; that he did not have his section 7 Charter right to silence violated; that his statement to the police was a voluntary one; and that there is no reason, whether under the Charter or at common law, to exclude the statement from the evidence at trial.
[23] The position of the Defence is that the accused was detained on January 10, 2013, shortly after the interview began; that his section 10(b) Charter right to counsel was violated in that, although it was read to him along with the cautions, there was never any clear and unequivocal waiver of it; that his section 7 Charter right to silence was violated; that the statement ought to be excluded from the evidence at trial under subsection 24(2) of the Charter; that the statement was not a voluntary one and ought to be inadmissible on that ground as well or in the alternative to the Charter issues; and, finally, that the statement ought to be excluded under the common law authority to keep out evidence unfairly obtained by the police, absent any requirement of a finding of detention and without the need to establish any breach under the Charter.
[24] On the latter point, the Defence focusses on alleged improper conduct on the part of Paddon and his alleged dishonesty at Court.
[25] On voluntariness, the Defence concentrates on the alleged vulnerabilities of Mr. O'Leary, alleged inducements made to him by Paddon during the interview, alleged improper police trickery by Paddon and alleged oppressive circumstances during the interview.
[26] The Crown paints a more robust picture of Codi O'Leary. The Crown disputes the existence of any improper inducements. The prosecution takes issue with the suggestion that the interview was in any way oppressive or that Paddon engaged in any form of improper police trickery.
[27] On the Charter issues, the focus of the Defence is on the right to counsel and the alleged failure on the part of Paddon to obtain a valid waiver. Very little time was spent, in evidence or in submissions, on the right to silence.
[28] The Crown, likewise, spent very little time, in evidence or submissions, on the right to silence. Both counsel recognize that it is interrelated with the concepts of the right to counsel and voluntariness. On the right to counsel, the Crown disputes the assertion that there was any failure on the part of Paddon to obtain a valid waiver. Besides, argues the Crown, it does not matter because there was no detention. According to the Crown, the case law is clear that the concept of detention does not include every instance where the police have grounds to arrest someone but choose to hold off and question the individual or elicit evidence in some other manner.
[29] On detention, the Defence concentrates on the circumstances of the interview itself and the evidence of the accused that he felt psychologically detained.
[30] The prosecution is adamant that there was no detention. The Crown argues that the accused is not a credible witness and ought not to be believed when he claims that he felt detained.
[31] On the latter point, I pause to note that I decline to assess the credibility of Mr. O'Leary for the purposes of this decision. I will accept his evidence that he felt psychologically detained (my words).
[32] The ruling can be made without a fulsome discussion of the credibility of the accused. And, in cases where that is possible on a pretrial application, that is preferable in the event that the case proceeds to trial and the accused testifies before the same judge as the trier of fact.
[33] The main exception is on the issue of inducements. I am forced to say something about the credibility of the evidence of the accused in order to resolve that item of the analysis, and I do so below. I also comment on the credibility of the accused regarding his evidence that he wanted to call a lawyer during the interview.
[34] Finally, on subsection 24(2) of the Charter, counsel take opposing views. The Defence argues that, on a breach of the right to counsel, at least the first two of the three factors discussed in Grant, supra favour exclusion of the statement. The prosecution argues that all three factors favour admission.
[35] I have taken the time to outline, in detail, the positions of counsel as put in closing submissions for two reasons. The first is to recognize the hard work and professionalism of both counsel, who exemplify the highest standards of advocacy that can reasonably be expected. The other reason is to make clear that I have considered the arguments of counsel on each and every issue. I have read the entire casebooks filed. My failure to not refer to every decision filed is not meant as any offense to counsel. It simply is not possible to do so. Dozens of cases were filed. I have, where necessary, outlined the important principles referred to by counsel, whether by reference to a specific decision or not.
[36] At the voir dire to determine the admissibility of the statement given to the police by the accused, I heard from two witnesses called by the Crown: Ms. Freeman (the administrative clerk at the OPP detachment on January 10, 2013) and Paddon.
[37] On behalf of the Defence, I heard from Mr. O’Leary.
The Law on Voluntariness
[38] To decide whether a statement by an accused to a person in authority is voluntary, a judge must examine and evaluate all of the circumstances surrounding the making of the statement. The approach is contextual. Watt’s Manual of Criminal Evidence (2014), section 37.04 on page 625.
[39] The rationale for the confessions rule is that involuntary confessions are more likely to be unreliable. The rule protects the rights of the accused while not unduly limiting society’s need to investigate and solve crime. Watt’s, supra.
[40] The framework for the confessions rule was set out at paragraph 33 of the decision of the Supreme Court of Canada in R. v. Oickle, 2000 SCC 38, [2000] S.C.J. No. 38, citing an earlier decision authored by Justice Martin of the Court of Appeal for Ontario.
- In defining the confessions rule, it is important to keep in mind its twin goals of protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes. Martin J.A. accurately delineated this tension in R. v. Precourt (1976), 1976 CanLII 692 (ON CA), 18 O.R. (2d) 714 (C.A.), at p. 721:
Although improper police questioning may in some circumstances infringe the governing [confessions] rule it is essential to bear in mind that the police are unable to investigate crime without putting questions to persons, whether or not such persons are suspected of having committed the crime being investigated. Properly conducted police questioning is a legitimate and effective aid to criminal investigation. . . . On the other hand, statements made as the result of intimidating questions, or questioning which is oppressive and calculated to overcome the freedom of will of the suspect for the purpose of extracting a confession are inadmissible. . . .
All who are involved in the administration of justice, but particularly courts applying the confessions rule, must never lose sight of either of these objectives.
[41] In determining voluntariness, there is no exhaustive list of factors that a judge ought to consider. But relevant considerations include evidence of (i) threats, (ii) promises and/or inducements, (iii) oppression, (iv) the operating mind requirement and (v) police trickery. Watt’s, supra, at pages 625-626.
[42] Not every threat, promise or inducement will render a confession involuntary. In each case, a contextual approach is required.
[43] Generally speaking, offers of lenient treatment or a reduced charge in return for a confession are likely to warrant exclusion of the statement. And inducements that are within the control of the person in authority are more likely to lead to a finding of involuntariness than those that are not within the control of the police officer. Watt’s, supra, at page 626.
[44] The Supreme Court of Canada summarized the law on threats, promises and inducements as follows, at paragraphs 57 and 71 of its decision in Oickle, supra.
- In summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. On this point I found the following passage from R. v. Rennie (1981), 74 Cr. App. R. 207 (C.A.), at p. 212, particularly apt:
Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated. If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said or done by a person in authority. More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession.
The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise.
- Again, I would also like to emphasize that the analysis under the confessions rule must be a contextual one. In the past, courts have excluded confessions made as a result of relatively minor inducements. At the same time, the law ignored intolerable police conduct if it did not give rise to an “inducement” as it was understood by the narrow Ibrahim formulation. Both results are incorrect. Instead, a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all the aspects of the rule discussed above. Therefore a relatively minor inducement, such as a tissue to wipe one’s nose and warmer clothes, may amount to an impermissible inducement if the suspect is deprived of sleep, heat, and clothes for several hours in the middle of the night during an interrogation: see Hoilett, supra. On the other hand, where the suspect is treated properly, it will take a stronger inducement to render the confession involuntary. If a trial court properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for “some palpable and overriding error which affected [the trial judge’s] assessment of the facts”: Schwartz v. Canada, 1996 CanLII 217 (SCC), [1996] 1 S.C.R. 254, at p. 279 (quoting Stein v. The Ship “Kathy K”, 1975 CanLII 146 (SCC), [1976] 2 S.C.R. 802, at p. 808) (emphasis in Schwartz).
[45] Regarding the notion of moral or spiritual inducements in particular, the Supreme Court of Canada, at paragraph 56 in Oickle, supra, stated as follows.
- A final threat or promise relevant to this appeal is the use of moral or spiritual inducements. These inducements will generally not produce an involuntary confession, for the very simple reason that the inducement offered is not in the control of the police officers. If a police officer says “If you don’t confess, you’ll spend the rest of your life in jail. Tell me what happened and I can get you a lighter sentence”, then clearly there is a strong, and improper, inducement for the suspect to confess. The officer is offering a quid pro quo, and it raises the possibility that the suspect is confessing not because of any internal desire to confess, but merely in order to gain the benefit offered by the interrogator. By contrast, with most spiritual inducements the interrogator has no control over the suggested benefit. If a police officer convinces a suspect that he will feel better if he confesses, the officer has not offered anything. I therefore agree with Kaufman, supra, who summarized the jurisprudence as follows at p. 186:
We may therefore conclude that, as a general rule, confessions which result from spiritual exhortations or appeals to conscience and morality, are admissible in evidence, whether urged by a person in authority or by someone else. [Emphasis in original.]
[46] With regard to oppressive circumstances, again, there is no exhaustive list of factors that a judge should consider. Relevant items include (i) depriving the accused of food, drink, sleep, medication or medical attention, clothing and/or shelter, (ii) denying the accused access to counsel, (iii) overly aggressive or intimidating questioning over a long time and (iv) the use of nonexistent evidence. Watt’s, supra, at page 626.
[47] In Oickle, supra, at paragraphs 60 and 61, the Supreme Court of Canada had this to say about oppression and its connection to the issue of voluntariness.
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. For similar examples of oppressive circumstances, see R. v. Owen (1983), 1983 CanLII 3604 (NS CA), 4 C.C.C. (3d) 538 (N.S.S.C., App. Div.); R. v. Serack, 1973 CanLII 1664 (BC SC), [1974] 2 W.W.R. 377 (B.C.S.C.). 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.
A final possible source of oppressive conditions is the police use of non-existent evidence. As the discussion of false confessions, supra, revealed, this ploy is very dangerous: see Ofshe & Leo (1997a), supra, at pp. 1040-41; Ofshe & Leo (1997), supra, at p. 202. The use of false evidence is often crucial in convincing the suspect that protestations of innocence, even if true, are futile. I do not mean to suggest in any way that, standing alone, confronting the suspect with inadmissible or even fabricated evidence is necessarily grounds for excluding a statement. However, when combined with other factors, it is certainly a relevant consideration in determining on a voir dire whether a confession was voluntary.
[48] On the issue of the requirement that the maker of the statement have an operating mind, the threshold is not a high one. What is required is simply a limited degree of cognitive ability. The accused must be able to understand what he is saying. He must be able to comprehend, generally, the evidence that may be used against him. He must speak to the police officer by choice – an exercise of his own free will. Watt’s, supra, at page 626.
[49] The police trickery criterion is concerned primarily with maintaining the integrity of the criminal justice system. Even where police trickery does not undermine voluntariness, the confession may still be excluded where the conduct of the police is so appalling that it shocks the community. Oickle, supra.
[50] Of course, one must remember that an interrogation is, by its very nature, susceptible to some friction between the police officer and the suspect. Not very many accused persons walk in to an interview room and exclaim “you got me; I did it”. We do not expect police officers to behave as they would at the family dining table. Police officers are entitled to, and I think that most informed members of the public expect them to, employ legitimate tactics to ease the suspect in to talking. As Justice Lamer stated in R. v. Rothman, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640, at page 697, “[t]he investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queenberry’s rules”.
[51] There is a line, however. It is not a bright one easily defined except to say that the police cannot engage in trickery or conduct that (i) overcomes the will of the accused such that the statement is extracted by compulsion, or (ii) is so egregious that the confession must be excluded on public policy grounds, to maintain the integrity of our criminal justice system, quite apart from whether the conduct of the police rendered the statement involuntary.
The Charter Rights of the Accused – the Legal Principles
[52] Section 7 of the Charter provides that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.
[53] It has long been established that section 7 includes the right of a detained person to remain silent. That right to remain silent is broader than the confessions rule and is based upon the fundamental concept that a suspect has the right to choose whether to speak to the authorities or not. R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151.
[54] There is a strong interrelationship between the Charter-protected right to silence and the issue of voluntariness. The focus on both issues is on the conduct of the police and its effect on the ability of the accused to exercise his or her free will. With regard to both issues, voluntariness and the right to silence, the personal make-up of the accused is important. R. v. Singh, [2007] 3 S.C.J. No. 48.
[55] Section 10(b) of the Charter provides that “[e]veryone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right”.
[56] “Detention” refers to the suspension of a person’s liberty interest by a significant physical or psychological restraint. R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
[57] Psychological detention can arise where the suspect has a legal obligation to comply with the police demand. Or it can arise where a reasonable person would consider that she had no choice but to comply. Grant, supra.
[58] With regard to the latter, the inquiry is an objective one. The entire interaction between the police officer and the accused must be considered. It serves no purpose to parse minute words or actions in isolation. Grant, supra.
[59] There is no exhaustive list of ingredients for the recipe of psychological detention. A judge may consider, first, the circumstances which precipitated the encounter between the police officer and the suspect. For example, were the police making general inquiries or were they singling out this accused for focussed investigation of a specific event? Second, a judge may consider the nature of the police conduct. For example, where did the interview occur? For how long? How did the suspect get there? Was anyone else present? Third, a judge may consider the particular characteristics of the accused – his age, size, minority status and level of sophistication, as examples. Grant, supra.
[60] In R. v. Moran, 1987 CanLII 124 (ON CA), [1987] O.J. No. 794, Justice Martin, for the Court of Appeal for Ontario, outlined some of the factors that may be considered in deciding whether someone was detained at the time that he was questioned by the police at the police station. Justice Martin set out the following non-exhaustive list of seven considerations (pages 23 and 24).
The precise language used by the police officer in requesting the person who subsequently becomes an accused to come to the police station, and whether the accused was given a choice or expressed a preference that the interview be conducted at the police station, rather than at his or her home;
whether the accused was escorted to the police station by a police officer or came himself or herself in response to a police request;
whether the accused left at the conclusion of the interview or whether he or she was arrested;
the stage of the investigation, that is, whether the questioning was part of the general investigation of a crime or possible crime or whether the police had already decided that a crime had been committed and that the accused was the perpetrator or involved in its commission and the questioning was conducted for the purpose of obtaining incriminating statements from the accused;
whether the police had reasonable and probable grounds to believe that the accused had committed the crime being investigated;
the nature of the questions: whether they were questions of a general nature designed to obtain information or whether the accused was confronted with evidence pointing to his or her guilt;
the subjective belief by an accused that he or she is detained, although relevant, is not decisive, because the issue is whether he or she reasonably believed that he or she was detained. Personal circumstances relating to the accused, such as low intelligence, emotional disturbance, youth and lack of sophistication are circumstances to be considered in deter-mining whether he had a subjective belief that he was detained.
[61] There are two parts to the section 10(b) Charter right: the information component and the implementation component. The former, in plain language, means the obligation on the part of the police to tell the accused what he has the right to know. The latter refers to the requirement that the police facilitate the accused exercising his right to counsel.
[62] The right to counsel is not easily waived. The standard required for an effective waiver is high. The Crown has the burden of establishing unequivocal waiver. The waiver must be free and voluntary. And it must be informed – one cannot waive something without knowing what is being given up. R. v. Prosper (1994) 1994 CanLII 65 (SCC), 92 C.C.C. (3d) 353 (S.C.C.).
[63] Turning now to the issue of remedy where a violation of a Charter right is found, section 24(2) states that “[w]here, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”.
[64] There are three lines of inquiry. First, an examination of the seriousness of the Charter-infringing state conduct. There is a spectrum, from inadvertent or minor violations to wilful or reckless disregard for the constitutional rights of an accused person. The question is whether admission of the evidence would send the wrong message to society that the courts condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. Second, an evaluation of the impact on the Charter-protected interests of the accused. The more serious the impact, the greater the risk that admission of the evidence would breed public cynicism and bring the administration of justice into disrepute. Third and finally, an assessment of society’s interest in the adjudication of the case on its merits. The more reliable the evidence is and the more important it is to the case for the prosecution, the greater the chance that the evidence will be admitted. The question is whether the truth-seeking function of the criminal trial process would be better served by admission or exclusion of the evidence. Grant, supra.
The Evidence and Findings on the Key Issues to be Decided
(i) Was Mr.O’Leary Detained?
[65] There is evidence that is before the Court which is capable of supporting a finding that the accused was detained when being interviewed by Paddon. The following are just some examples.
[66] First, there is the testimony of Paddon that, by about page 9 of the 58-page transcript of the interview, he had reasonable and probable grounds to arrest Mr. O’Leary for dangerous driving and other offences.
[67] Second, there are instances during the interview when Paddon tells the accused to “sit for a second”. There are three references to that at pages 47 and 50 of the transcript. I will return to that later.
[68] Third, there is the testimony of Mr. O’Leary that, as early as the discussion between him and Paddon at page 17 of the transcript, he felt that he could not leave the room. Further, generally speaking, Mr. O’Leary’s evidence was that he at no point during the interview believed that he could just get up and go. More specifically, according to the accused, when Paddon mentioned “family” at page 13 of the transcript, Mr. O’Leary felt that he had no choice but to stay there and talk. Mr. O’Leary testified that he felt stuck there. And, according to the accused, until the very end of the interview, he did not know if he was going to be able to leave when the questioning finally ended.
[69] Fourth, there is the fact that Paddon gave to Mr. O’Leary his right to counsel and cautions. I will return to that later.
[70] On the other hand, there is evidence before the Court which is capable of supporting a finding that the accused was not detained when being interviewed by Paddon. The following are just some examples.
[71] First, Paddon specifically told Mr. O’Leary that he could get up and walk out if he wanted – see, for example, page 17 of the transcript.
[72] Second, the nature and tone of the interview was fairly calm and non-confrontational. It took place in a small room with the participants in relatively close proximity to each other, however, there was absolutely nothing aggressive or angry about the conversation.
[73] Third, there are the circumstances precipitating the interview itself. Mr. O’Leary arrived at the police station on his own, unannounced. He chose to attend there.
[74] Fourth, there is the fact that Mr. O’Leary was never touched or restrained by Paddon, inside or outside of the interview room.
[75] Fifth, there is the fact that Paddon never seized anything from the accused, whether before, during or after the interview. That includes the cell phone that the accused was visibly using during breaks in the interview while Paddon was outside of the room.
[76] Sixth, there is the testimony of Paddon that he neither intended to nor actually did detain Mr. O’Leary at any point in time.
[77] Having regard to the evidence before me, I conclude that Mr. O’Leary was not detained while he was at the police station on January 10, 2013.
[78] It is clear that there was no physical detention.
[79] With regard to the question of psychological detention, it is clear that Mr. O’Leary had no legal obligation to comply with any police demand or to answer any of Paddon’s questions.
[80] So the issue boils down to whether a reasonable person would consider that he had no choice but to comply, that is, to stay at the police station and talk to Paddon.
[81] Again, as said above, the inquiry is an objective one. The entire interaction between the police officer and the accused must be considered.
[82] In terms of some of the factors outlined in Grant, supra and Moran, supra, I make the following observations.
[83] Clearly, the circumstances which precipitated the encounter between Paddon and the accused do not favour a finding of detention. Mr. O’Leary drove himself to the police station. He was not asked or expected to attend. He chose to attend. He did not ask for the interview to be done over the telephone or take place somewhere else. He met Paddon in the lobby and then followed the officer in to the interview room.
[84] Likewise, the manner in which the interview ended points away from a finding of detention. Mr. O’Leary walked out and drove away on his own accord. He was not arrested. He was not charged.
[85] In terms of the stage of the investigation, that consideration is neutral on these facts.
[86] The interview started with general inquiries by Paddon. In fact, the detective wanted to know why the accused was even there.
[87] Although it is true that the interview then became more focussed on Mr. O’Leary’s alleged involvement in the fatal motor vehicle accident, the conduct of Paddon throughout the interview was professional and relatively benign.
[88] By page 9 of the transcript of the interview, Paddon had reasonable and probable grounds to arrest the accused. Although he had no intention of doing so and was not the officer in charge of the investigation, the fact that he had those grounds is a consideration that points in favour of a finding of detention for the remainder of the interview.
[89] In terms of the nature of the questions generally, that consideration is neutral on these facts. For much of the interview, the accused was indeed confronted with evidence pointing to his guilt. But it is also true that the manner and tone of the questioning was anything but aggressive. And, on some important points, Paddon appeared to accept what the accused was saying. For example, it appeared that Mr. O’Leary eventually convinced Paddon that his car had not contacted the other motor vehicle.
[90] The place of the interview and the fact that the door was closed to a rather small room certainly point in favour of detention.
[91] The length of the interview is neutral. It was not very brief. It was certainly not long. It included multiple breaks.
[92] The particular characteristics of Mr. O’Leary, generally, are neutral factors. He was an adult but still young. He was smaller than Paddon but not significantly. Mr. O’Leary is not a minority. His vocabulary and demeanour during the interview suggest that Mr. O’Leary was of average sophistication for a young man of his age.
[93] The subjective belief of the accused points in favour of a finding of detention. I will accept Mr. O’Leary’s evidence that he felt detained (my words), although that evidence was not consistent on when during the interview he felt detained. In fact, at one point Mr. O’Leary stated that he felt, even before attending at the police station, that one must stay and talk to a police officer if one finds himself in that position. Surely, if that is true, I must question the weight to be attached to Mr. O’Leary’s subjective belief. Presumably, he would have felt detained if he had been speaking with Paddon at Mr. O’Leary’s own home, at the invitation of the accused.
[94] In terms of other factors, it is of course relevant that Paddon told the accused in plain and simple language that he was not in custody and could leave at any time. That points away from a finding of detention.
[95] Further, Paddon never searched or seized anything from Mr. O’Leary. He never touched the accused. He never physically directed his movements. He did not physically restrain him in any way. He did not stand over him in the interview room. He did not shout at him. He did not get visibly angry with him. He did not berate him. All of those things point away from a finding of detention, even psychologically.
[96] The Defence urges me to find that the provision of the right to counsel and cautions is something that points in favour of a finding of detention. I disagree. In plain language, the right to counsel included a reference to “if” Mr. O’Leary is charged with an offence. Contrary to what the Defence submits, the right to counsel was read by Paddon clearly and at a normal cadence (not slow but not fast either). The right to counsel was almost immediately followed by Paddon telling the accused that he was not in custody and could get up and walk out. And then the officer also clarified that the accused “may” be charged with certain offences (see pages 16-18 of the transcript of the interview for the sequence of events).
[97] I accept Paddon’s evidence that he gave the right to counsel to be fair to the accused and to cover the bases (my words) in the event that the matter ended up in Court.
[98] The provision of the right to counsel and cautions, on these facts, points neither in favour nor against a finding of detention.
[99] The Defence urges me to find that the accused’s texting with his cell phone while Paddon was out of the room is a sign of detention. I disagree. It points away from a finding of detention. Although he was told specifically that the room was being recorded, the accused felt comfortable enough to take out his phone, in plain view, and text, multiple times and at length.
[100] The Defence urges me to find that Paddon saying things like “sit for a second” points in favour of detention. I disagree. The comments were made in a friendly tone and were made in the context of Paddon doing something in the absence of the accused, such as photocopying outside of the interview room (page 50 of the transcript of the interview). It was a figure of speech and not a command.
[101] The Defence urges me to find that Mr. O’Leary’s comment at page 55 of the transcript of the interview, “am I gonna be able to talk to my parents after this?”, is a sign of detention. I disagree. Frankly, I do not know what to make of that comment. It is completely nonsensical. The officer had just asked the accused if he is going to talk to his mom and dad (page 54). Obviously, that question implied that the accused would be able to do so. In any event, if it is a sign of detention, it falls under the subjective belief of the accused, a factor that I have already accepted as pointing in favour of detention.
[102] This is not an exercise of counting checkmarks in columns of “for” or “against” a finding of detention.
[103] I have watched the entire audio-video interview multiple times. I have read the transcript several times. In my view, no reasonable person in the shoes of Mr. O’Leary would have considered that he had no choice but to stay at the police station and talk with Paddon. No reasonable person in the shoes of Mr. O’Leary would have felt psychologically detained at any point before, during or after the interview. No reasonable person who watches the interview would conclude that the accused was detained.
[104] The accused was not detained.
(ii) Was Mr. O’Leary’s Statement to the Police a Voluntary One?
[105] The Crown must prove, beyond a reasonable doubt, that Mr. O’Leary’s statement to the police was given voluntarily.
[106] If not, then, regardless of any Charter analysis, the statement is not admissible in evidence at the trial.
[107] In my opinion, the statement was clearly voluntary. I am convinced of that beyond a reasonable doubt.
[108] First, operating mind is not relevant here. The issue has not been raised by the Defence. I have watched the recorded interview. There is not a shadow of a doubt that Mr. O’Leary had an operating mind throughout.
[109] Second, threats and promises are not relevant here. No issue in that regard has been raised by the Defence. I have watched the recorded interview. No threats or promises were made by Paddon.
[110] Third, oppression is not relevant here. There is absolutely nothing oppressive about the conversation between Paddon and the accused. The officer interrupts him a few times. The officer confronts him with the alleged evidence. The officer asks a fair number of questions. If those things amount to oppressive circumstances as defined in Oickle, supra, then it is likely that every police interview is susceptible to being excluded from evidence.
[111] Fourth, there are no improper inducements here. The Defence points to three comments made by Paddon at pages 12 and 13 of the transcript of the interview. I set out here an excerpt from line 19 on page 12 of the transcript to line 26 on page 13.
OFFICER STEVE PATON: But you wanted to be found, just because your conscience, and I appreciate that, and I knew that was gonna happen. I bet on it last night that somebody, whoever it was, is gonna realize the mistake that was made that cost a person his life, and come in here. And we have another guy heading for London for surgery. The guy in the van, okay? He’s, it’s not life threatening, but he’s got to have surgery on his foot and his hand, okay? And I don’t know if you know who that guy is?
CODI J. O’LEARY: He works at Springmount.
OFFICER STEVE PATON: Yeah. So, and it’s probably some place where you stop and get gas once in a while…
CODI J. O’LEARY: Every morning, yeah.
OFFICER STEVE PATON: …yeah. Yeah. So we have, it’s like a family kind of thing we’ve got goin’ on here. This isn’t people from Toronto that were involved in this.
CODI J. O’LEARY: Yeah.
OFFICER STEVE PATON: These are all Owen Sound people.
CODI J. O’LEARY: Mhm.
OFFICER STEVE PATON: And we’ve got to make it right, okay? And like I say, that’s why I appreciate you coming in.
[112] Paddon’s references to “conscience” on page 12 and to “family” on page 13 are not improper inducements. I specifically reject the evidence of Mr. O’Leary that those statements made him feel like he had to stay and talk to the police officer. I find that evidence to be incredible.
[113] These are the types of alleged moral or spiritual inducements that will rarely give rise to a finding of involuntariness. Paddon had no control over Mr. O’Leary’s conscience or his sense of family. There was no quid pro quo. In addition, the recorded interview makes it clear that the comments had no effect on the accused. And, finally, the accused himself testified that the fact that Mr. Vollering was injured in the accident, although known to Mr. O’Leary, was not significant in the accused deciding to attend at the police station to begin with. As for the deceased young man, he was a stranger to Mr. O’Leary.
[114] Fifth, there was no improper police trickery here. It is one thing for a police officer to exaggerate the strength of the evidence against the accused; it is another thing for the officer to fabricate out of left-field evidence which simply does not exist.
[115] Here, the most that the Defence can point to are items like Paddon exaggerating the speeds of the two motor vehicles and referring to a video that, as it turns out, does not exist. These are not the types of police trickery that render an otherwise conversational statement legally inadmissible as involuntary.
[116] Sixth, when one watches the recorded interview, there is not a hint of involuntariness. There is not a hint of Mr. O’Leary having his will overborne by Paddon. There is not a hint of the accused being forced or compelled to talk. There is not a hint of Mr. O’Leary being deprived of his right to choose whether to speak or not. In fact, he talks freely and, at times, at length about what happened on the evening in question.
[117] In cross-examination at Court, the Crown took Mr. O’Leary through the statement and had him acknowledge that, in almost every instance, Paddon did or said nothing to force or compel the accused to say what he said.
[118] The Defence points to two examples of the accused being influenced by something communicated by the police. The first is an allegation that the accused admitted to “travelling with” the other vehicle because that is the language used in the OPP radio broadcast that Mr. O’Leary had heard before attending at the police station. It is true that the radio broadcast used that expression – “travelling with”. But I do not accept that the radio broadcast amounted to some kind of subconscious compulsion felt by Mr. O’Leary. The fact is that, for some distance, even on the evidence of the accused, the vehicles were in close proximity of each other. In common parlance, the accused was indeed travelling with the other vehicle.
[119] The second example is the comment by the accused, at page 23 of the interview transcript, “I blowed through that stop sign”, referring to the intersection at the Esso gas station. At page 21 of the transcript, Paddon had suggested that the accused turned right at that intersection, on a red light and without stopping.
[120] I fail to see the connection. The two are not the same. The comment from Paddon did not force or compel the accused to say what he said. If it is true that Mr. O’Leary had a green light at that intersection, as he states now, then he simply misspoke during the interview. It happens. The comment was not involuntarily made.
[121] The admission most concerning to the Defence comes at page 33 of the transcript of the interview, where the accused agrees with Paddon that he and the other vehicle were racing.
[122] I reject the Defence assertion that the said admission was made involuntarily. Although a leading question from the officer, the proposition was put to Mr. O’Leary plainly and calmly. Mr. O’Leary’s agreement with the officer’s suggestion was clearly audible and unequivocal.
[123] Mr. O’Leary handled himself very well during the interview and at Court. He stood up to Paddon numerous times. He remained steadfast throughout the interview that some of what Paddon was suggesting was false. Examples are the speed of the accused’s vehicle going up the West hill on 10^th^ Street, whether the accused saw the other vehicle on the East side of the City and whether the two vehicles contacted each other.
[124] It is too convenient that, on the penultimate question of whether the accused was racing, he was overcome by the police officer, yet he regained his free will almost immediately and was able to disagree with the officer, repeatedly, afterwards.
[125] The Defence chalks this up to the personal make-up of Mr. O’Leary – that he gets “scrambled” from time to time. I am sure that is true. It is true of everyone. But I am convinced that what he said to the officer, including the admission of racing, was a product of his own free will.
[126] In conclusion, the prosecution has proven, beyond a reasonable doubt, that the statement was a voluntary one, and I so find.
(iii) Was there a Breach of Mr. O’Leary’s Right to Counsel and/or his Right to Remain Silent?
[127] The Defence must establish, on a balance of probabilities, that Mr. O’Leary’s Charter right(s) was/were violated.
(a) The Right to Counsel – section 10(b) of the Charter
[128] The most simple answer to this question is to say that Mr. O’Leary was not detained (as I have found), and he was clearly not under arrest, thus, he had no right to counsel and, therefore, no breach of that right could possibly be made out.
[129] Not only would that be the most simple answer, it would also be the correct one in law. Support for that proposition is found in the decision of the Court of Appeal for Ontario in R. v. Hall, 2004 CanLII 46216 (ON CA), [2004] O.J. No. 5007. At paragraph 24 of that decision, Justice Doherty, for the Court, stated the following.
[24] The trial judge’s finding that the appellant was not detained when he made his statement on June 2 is fully supported by the facts as found by her. There is no basis upon which this court should interfere with her ruling. As counsel acknowledges, absent a finding that the appellant was detained, there is no argument against the admissibility of the statement or the shoes.
[130] As the Defence points out, paragraph 26 of the decision in Hall, supra makes it clear that the accused in that case, unlike Mr. O’Leary, called no evidence on the voir dire. That, however, does not change the general legal principle that, absent a detention, there can be no violation of section 10(b) of the Charter.
[131] It is not surprising that the Court of Appeal for Ontario made the point that it did at paragraph 24 in Hall, supra. About a decade before that case was decided, the Supreme Court of Canada had this to say in a very short endorsement released in the case of R. v. Hawkins, [1993] S.C.J. No. 50. I set out here all three paragraphs of the decision.
[1] This is an appeal as of right.
[2] We are all of the view that on the facts of this case the respondent was not detained. It follows that there could not be any infringement of his rights guaranteed by s. 10(b) of the Canadian Charter of Rights and Freedoms.
[3] The appeal is therefore allowed. The order of the Court of Appeal is set aside and the conviction restored.
[132] The Defence quite correctly points out that the rights and freedoms in the Charter ought to be interpreted generously and liberally. R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] S.C.J. No. 17, at paragraph 117.
[133] But such a generous and liberal interpretation cannot bring me to ignore the very clear wording of section 10(b), that it arises upon arrest or detention, and the binding legal authorities referred to above.
[134] Although unnecessary, in the event that this decision is appealed, I will go further and analyze the issue from the perspective of whether, because the officer chose to read to Mr. O’Leary the right to counsel and the cautions, given what transpired, there was or was not a violation.
[135] I reject the Defence argument that estoppel arises in these circumstances. That submission was not elaborated on by Mr. Barrie except to say that the state is estopped from arguing that there was no violation of the right to counsel on the basis that it was not required because the officer chose to read to the accused that right.
[136] I do not accept that argument. But it matters not because I will conduct the 10(b) assessment nonetheless.
[137] The only matter capable of amounting to a violation of the right to counsel, on these facts, is the issue of waiver.
[138] The Defence has taken me to authorities which, on their face, are indeed capable of supporting a conclusion that, because Paddon failed to obtain a clear “yes” or “no” to the question of whether the accused wanted to contact a lawyer or duty counsel, there was a breach of section 10(b) of the Charter: three examples are R. v. Munro, [2009] O.J. No. 399 (S.C.J.), R. v. Gayle, 2013 ONSC 5282, [2013] O.J. No. 3770 (S.C.J.) and R. v. Owens, 2014 ONSC 7471, [2014] O.J. No. 6209 (S.C.J.).
[139] The problem for the Defence is that those cases do not directly address a situation, like here, where the accused appeared quite willing to speak to the police. The Defence authorities, generally speaking, assume a factual scenario where it is clear that the accused did not want to talk.
[140] That is not our case. I find that Mr. O’Leary wanted to talk. He spoke freely. He spoke at length. He provided detail. He never said that he did not want to speak. He never asserted his right to remain silent. He never protested to answering the questions from Paddon.
[141] This case is more like that in R. v. Santinelli, [2009] O.J. No. 3661 (S.C.J.). I set out here paragraphs 20 and 21 of that decision.
[20] I note that, unlike the circumstances in the cases cited by the Applicant, there were no obstacles or perceived obstacles to contacting a lawyer at the point at which Officer Theriault offered to put him in touch with a lawyer; see R. v. Brydges 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190, R. v. McLaughlin [2004] O.J. No. 2261. In fact, there is no dispute that Officer Theriault was not just asking if he wanted to contact a lawyer but was actually offering to put him in touch with a lawyer. This is also not a circumstance in which, as I have found the facts, an accused had previously indicated that he wished to speak to a lawyer as in R. v. Prosper, 1994 CanLII 65 (SCC), [1994] S.C.J. No. 72. In addition, this is not a situation where the accused person was impaired or otherwise unable to understand the information given; see R. v. Clarkson 1986 CanLII 61 (SCC), [1986] 1 S.C.R., 383, R. v. Plaha 2004 CanLII 21043 (ON CA), [2004] O.J. No. 3484 (Ont. C.A.).
[21] Moreover, and very significantly, Mr. Santinelli did not indicate that he did not wish to say anything unlike the accused persons in R. v. Manninen 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233; and R. v. McLaughlin, supra. On the contrary, Mr. Santinelli was quite willing to make a statement when Officer Theriault asked if he would. This distinguishes the situation from other cases such as R. v. Prosper, R. v. McLaughlin or R. v. Munro [2009] O.J. No. 399.
[142] The Justice in Santinelli, supra found no breach of section 10(b).
[143] Similarly, I find no breach in the case of Mr. O’Leary. The Defence has not met its burden on a balance of probabilities.
[144] Even accepting for the moment the evidence of Mr. O’Leary that he wanted to contact a lawyer during the interview, he certainly did or said nothing to indicate that to the officer. Quite the opposite, he said only that he did not have a lawyer (page 17). Paddon them immediately said that he had the number for legal aid, which comment was acknowledged by the accused with an “okay” (page 17). Seconds later, Paddon repeated the offer of a lawyer (page 18).
[145] I am satisfied that the prosecution has met the relatively high threshold of a valid waiver of the right to counsel, on these particular facts. It was freely and voluntarily given. It was clear and unequivocal, albeit imperfect (a “no” would have been perfect). It was informed.
[146] There was no violation of the right to counsel.
(b) The Right to Silence – [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](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)
[147] As indicated above, very little time was devoted to this issue by either side. It is clear to me that counsel recognize that my ruling on voluntariness will largely dictate my ruling on section 7.
[148] For much the same reasons attached to my ruling on voluntariness, I conclude that there was no breach of Mr. O’Leary’s section 7 Charter right to silence.
[149] He never expressed or implied, during the interview, that he did not want to speak. That is because he wanted to talk. He wanted to answer the questions. He wanted to tell his side of the story. He wanted to correct the officer’s misapprehensions. He did not want to remain silent, which is why he never asserted that right.
[150] Whether detained or not, there was no violation of the right to silence. The Defence has not met its burden on a balance of probabilities.
(iv) If there was a [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) violation, should the statement be excluded from the evidence at trial under [subsection 24(2)](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?
[151] In the event that this decision is reviewed by a higher Court, I will conduct a subsection 24(2) Charter analysis on the assumption that Mr. O’Leary’s right to counsel was indeed violated.
[152] I have not assumed, for the purpose of this analysis, that Mr. O’Leary’s right to silence was breached. I do not think that it is prudent to make that assumption. Given the current state of the law, I doubt that there is any reasonable chance of a breach of section 7 being made out on these facts.
[153] As to the first factor, the seriousness of the Charter-infringing state conduct, I conclude that the said consideration favours admission of the statement as part of the evidence at trial.
[154] No breach of a right as important as the right to counsel would likely ever be considered trivial. But, on these facts, there was absolutely no bad faith on the part of Paddon. There was no reckless or wilful disregard for Mr. O’Leary’s right to counsel. In fact, the right was not required to be given at all in these circumstances. It would appear very strange indeed, given that fact, to place the breach any worse than low to moderate on the spectrum of seriousness.
[155] This violation is not something that the Court must dissociate itself from by excluding the evidence.
[156] As for the allegation by the Defence that Paddon lied under oath at Court, I disagree. I touch on that later below. See the discussion under the heading “should the statement be excluded under the common law”.
[157] As to the second factor, the impact on the Charter-protected interests of the accused, I conclude that the said consideration also favours admission of the statement as part of the evidence at trial.
[158] It is clear to me that Mr. O’Leary, before and during the interview, had no intention of involving his parents, his family or a lawyer. The violation had minimal impact on his right to counsel.
[159] I specifically reject the assertion by Mr. O’Leary in his testimony that he wanted to call a lawyer during the interview. That is contrary to the fact that he chose not to contact one or tell his parents or family anything about his attendance at the police station, before his arrival. He knew the day before, on January 9, 2013, that someone had been killed in a motor vehicle accident that seemed to have some connection to what he saw with the car that slid out near him on the roadway the evening before. And it is contrary to the fact that the accused said not a word about wanting to contact a lawyer at any time during the entire interview, even when mentioned by Paddon, although Mr. O’Leary spoke freely and clearly about many other things.
[160] Admitting the statement would run no risk of breeding public cynicism or of harming the administration of justice.
[161] As to the third factor, society’s interest in the adjudication of this case on its merits, I conclude that the said consideration also favours admission of the statement as part of the evidence at trial.
[162] The accused is facing extremely serious charges, including dangerous driving involving a race which caused the death of a young man and bodily harm to another man. Further, the statement, although not necessarily crucial to, is important to the case for the prosecution in that it is inculpatory on the issue of racing at the approximate time of the crash, or shortly before. Finally, in my view, the statement is reliable. Mr. O’Leary had no difficulty challenging Paddon on things that the police believed to be true which were not accurate from the point of view of the accused, including when he first saw the other motor vehicle and their speeds. What the accused did admit to, in my opinion, is reliable.
[163] The truth-seeking function of the criminal trial process is much better served by the admission of the statement than by its exclusion.
[164] Overall, I conclude that admission of the statement as part of the evidence at trial would not bring the administration of justice into disrepute. On the contrary, its exclusion would bring the administration of justice into disrepute.
[165] Therefore, even if I had found a violation of Mr. O’Leary’s right to counsel, I would not have excluded it from the evidence at trial. I would have admitted the statement as part of the evidence at trial notwithstanding the breach of Mr. O’Leary’s right to counsel.
[166] The Defence has not met its burden under subsection 24(2) of the Charter.
(v) Should the Statement be Excluded Under the Common Law?
[167] Quite apart from the authority to exclude evidence that arose from a Charter violation, there has long existed in Canada the common law jurisdiction for a Court to exclude evidence at trial on the ground of basic fairness to the accused.
[168] “[T]he common law acknowledges a discretionary power on the part of trial judges to exclude evidence obtained in a way that violates a principle of adjudicative fairness or fair treatment of the accused at the hands of the police, notwithstanding the otherwise reliable nature of such evidence”. R. v. Clarkson, 1986 CanLII 61 (SCC), [1986] S.C.J. No. 20, at paragraph 14, citing Hogan v. The Queen, 1974 CanLII 185 (SCC), [1975] 2 S.C.R. 574.
[169] In fact, I recognized this common law authority in a fairly recent decision in the case of R. v. Dhillon, 2014 ONSC 6287, at paragraph 103, citing R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562. In Dhillon, supra, absent a Charter violation of the accused, I held that evidence improperly obtained by the police through their interactions with a third party ought not to be considered in assessing whether the police had reasonable and probable grounds to arrest the accused.
[170] Here, the Defence argues that, if I find that Mr. O'Leary was not detained, and if I hold that there, consequently, could be no violation of his right to counsel under section 10(b), I should nonetheless exclude from the evidence at trial his statement to the police on the basis of improper conduct on the part of Paddon.
[171] I decline to accept that submission.
[172] I see nothing improper about the conduct of Paddon, and certainly not anything that rises to a level where it would be shockingly or grossly unfair to this accused to admit as part of the evidence at trial his statement to the police.
[173] The only area of fault that can be laid at the feet of Paddon is the failure to obtain a clear "yes" or "no" answer from Mr. O'Leary on whether he wished to contact a lawyer or duty counsel, a right which was not required to be given because there was no detention.
[174] I disagree with the Defence that Paddon deliberately chose not to arrest the accused so as to bait him in to thinking that this was a witness interview. That runs contrary to the fact that Paddon clearly explained to Mr. O'Leary his jeopardy and the possible charges that he was facing.
[175] I disagree with the Defence that Paddon deliberately subverted Mr. O'Leary's ability to exercise his right to counsel. Paddon did nothing to prevent or frustrate the accused from exercising that right. Besides, the right did not exist because there was no detention.
[176] I disagree with the Defence that Paddon was unprofessional, deceitful and/or abusive during his interaction with the accused. The Exhibit speaks for itself. Paddon was none of those things.
[177] I disagree with the Defence that Paddon set out to take advantage of a vulnerable young man. Mr. O’Leary was young and, no doubt, nervous. But he was hardly a debutant. This was not his first brush with the law. He had some knowledge, albeit basic and limited, of his rights. Paddon did not exploit him.
[178] I disagree with the Defence that Paddon did not want Mr. O’Leary to contact a lawyer. Then why give the right to counsel and cautions? And why mention a lawyer more than once?
[179] I disagree with the Defence that Paddon knew that the accused was detained but pretended that he was not. As I have found, there was no detention.
[180] I disagree with the Defence that Paddon acted improperly by not arresting the accused immediately once he had subjective, reasonable and probable grounds to do so (at page 9 of the transcript). First, the police have no obligation to do so. Second, Paddon was not the officer in charge of the investigation. Third, he did not know all of the details of the ongoing investigation. Finally, he never intended to arrest or charge the accused, and nothing he heard during the interview changed that intention. Even at the end of the interview, the accused walked out of the police station a free man.
[181] I disagree with the Defence that Paddon lied under oath in Court as to when he formed subjective reasonable and probable grounds to arrest Mr. O'Leary. At its highest, Paddon's evidence was uncertain on that point. Although he was steadfast that he never detained, arrested, charged or intended to detain, arrest or charge the accused, the officer was somewhat unclear as to whether he himself had the grounds to arrest Mr. O'Leary during the interview or only at its conclusion. Eventually, Paddon acknowledged that those grounds existed at the point in the interview found at page 9 of the transcript.
[182] All in all, the facts of this case do not come close to being one of those relatively rare circumstances where evidence ought to be excluded from the trial on the common law authority referred to above.
[183] Generally speaking, I find that Paddon conducted himself in a professional and respectful manner, both on January 10, 2013 and at Court in February 2015. He treated Mr. O'Leary fairly.
[184] Mr. Barrie, as usual, has put forward eloquent and passionate arguments. I just disagree.
[185] Police are not deserving of any special treatment by the Courts. A uniform and a badge do not equal integrity or fairness. There are bad apples and cases where things are done contrary to notions of basic fairness, even by experienced officers. This is not one of those cases.
V. Conclusion
[186] For all of the foregoing reasons, Mr. O’Leary’s statement to the police on January 10, 2013 is admissible at trial.
This matter was very well presented by two highly competent barristers. I thank them for their able assistance.
Conlan J.
Released: March 2, 2015
CITATION: R. v. O’Leary, 2015 ONSC 1346
COURT FILE NO.: CR14-052
DATE: 20150302
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
Codi O’Leary
Defendant
REASONS FOR DECISION – ADMISSIBILITY OF STATEMENT
Conlan J.
Released: March 2, 2015