CITATION: R. v. Luckese, 2016 ONSC 1204

COURT FILE NO.: CRIM J (P) 632/13

DATE: 2016 03 14

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Amber Lepchuk, Counsel for the Crown

• and -

APRIL LUCKESE

Stephen Whitzman, Counsel for the Accused

HEARD: October 26, 27, 28, 29, 30, November 3,18, and 23, 2015

RULING – RE: STATEMENT ADMISSIBILITY AND VOLUNTARINESS

Lemon J.

INDEX

The Issue. 4

Background. 4

1. The Statement to Constable Hackenbrook. 7

Evidence of Constable Hackenbrook. 7

Evidence of Ms. Luckese. 14

Positions of the Parties. 18

Legal Authorities. 20

Detention. 20

Analysis. 22

Charter Breach. 25

2. Statement to Detective Bruce Thomson (Interview) 25

Background. 25

Evidence of Detective Thomson. 25

Evidence of Ms. Luckese. 36

Positions of the Parties. 38

Legal Authorities. 39

Voluntariness. 39

Analysis. 43

Voluntariness. 43

Charter Breach. 44

Positions of the Parties. 44

Legal Authorities. 45

Analysis. 46

Fresh Start In Time. 46

Section 24(2) 52

3. Ms. Luckese’s Call to Her Husband. 52

Evidence of Detective Thomson. 52

Evidence of Ms. Luckese. 54

Positions of the Parties. 55

Legal Authorities. 55

Analysis. 57

Charter Breach. 57

Section 24(2) 58

4. Statement to Detective Thomson (Walk- Through of the Home) 59

Evidence of Detective Thomson. 59

Evidence of Ms. Luckese. 62

Positions of the Parties. 63

Legal Authorities. 64

Analysis. 65

Voluntariness. 65

Charter Breach. 66

Section 24(2) 66

4. Statement to Detective Thomson (Cruiser) 66

Evidence of Detective Thomson. 66

Evidence of Ms. Luckese. 67

Positions of the Parties. 67

Legal Authorities. 68

Analysis. 69

5. Statement to Constable McNulty. 70

Background. 70

Evidence of Constable McNulty. 70

Evidence of Ms. Luckese. 80

Positions of the Parties. 82

Legal Authorities. 84

Analysis. 85

Voluntariness. 85

Charter Breach. 86

6. Ms. Luckese’s Call to Her Husband. 87

Positions of the Parties. 87

Analysis. 87

The Issue

[1] Ms. Luckese is charged with the manslaughter of a 14 month old child. The Crown seeks a ruling that various admissions made by Ms. Luckese to members of the Peel Regional Police were made voluntarily.

[2] In response, the defence submits that those same statements were involuntary or obtained by the violation of Ms. Luckese’s s. 10(a) and 10(b) rights and that they should be excluded pursuant to s. 24(2) of the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. (Charter).

[3] As a result of delays, the applications were extended very close to the commencement of trial. Accordingly, I provided rulings with reasons to follow. These are those reasons.

Background

[4] Ms. Luckese had been operating a daycare out of her home at 2075 Asta Drive, Unit 33, in the City of Mississauga. Duy-An Nguyen was the 14- month-old daughter of An and Loc Nguyen. Duy-An’s first day with Ms. Luckese was January 4, 2011.

[5] On January 5, 2011, a 911 call was made at 4:23 p.m., in regards to an unconscious one year-old child at Ms. Luckese’s address. That child was Duy-An.

[6] Constable Tonya Hackenbrook of the Peel Regional Police was the first police officer to respond. Upon arriving at the residence at 4:32 p.m., she spoke with Ms. Luckese who identified herself as the daycare provider.

[7] Ms. Luckese gave further statements to Constable Hackenbrook which are the subject of these applications.

[8] Later that day, Detective Bruce Thomson took a statement from Ms. Luckese. That statement was videotaped at a Peel Regional Police station. During the statement, Detective Thomson charged Ms. Luckese with aggravated assault. The admission of that statement is in dispute.

[9] After completing the statement, Detective Thomson and Ms. Luckese returned to the home. A videotaped “walk-through” was carried out. The walk-through and Ms. Luckese’s statements on that occasion are in dispute.

[10] After the walk-through was completed, Detective Thomson drove Ms. Luckese back to the Peel Regional Police station. There was a conversation between the two of them in the cruiser. The admissibility of Ms. Luckese’s statements at that time is in dispute.

[11] By January 7, 2011, Duy-An had passed away. Accordingly, the Peel Regional Police determined that Ms. Luckese should be charged with second degree murder. Constable Geraldine McNulty arrested Ms. Luckese and took a statement from her. The admissibility of that statement is in dispute.

[12] On November 23, I made the following ruling:

I have now heard evidence and argument with respect to the admissibility of a variety of statements by Ms. Luckese. For reasons to follow, I find that:

1.Ms. Luckese was detained as of leaving Constable Hackenbrook's cruiser to go to the washroom. The Crown conceded that if I were to find a detention, any statement made to Constable Hackenbrook after the point of detention was inadmissible. The Defence conceded that statements to Constable Hackenbrook prior to detention were admissible.

2. Except as set out below, Ms. Luckese’s statement to Detective Thomson is admissible.

3. Ms. Luckese’s telephone conversation with her husband during the statement to Detective Thomson is inadmissible. For simplicity, it would seem best to delete the evidence in the transcript from 20:42 to 20:50.

4. The balance of the statement with Detective Thomson is admissible.

5. The videotape of the "walk-through" and Ms. Luckese’s statements at that time are admissible.

6. Ms. Luckese’s statements to Detective Thomson in the cruiser on the way back to the police station are admissible.

7. The statement to Constable McNulty is inadmissible.

1. The Statement to Constable Hackenbrook

Evidence of Constable Hackenbrook

[13] On January 5, 2011, Constable Hackenbrook was working the afternoon shift from 6 a.m. to 6 p.m. She was in uniform and driving a marked cruiser. She was first dispatched at 4:23 p.m. to go to the residence for an "unconscious one-year-old child". She was advised that the child was breathing but could not be awakened. This apparently occurred at a home daycare while the parents were not present. The child had been crying all day and would not wake up.

[14] Constable Hackenbrook attended alone at 4:32 p.m. Although other officers arrived, she was the first police constable in attendance. When she arrived, she found the front door open. The residence was a townhouse. There were three adults and two children standing in the driveway. Those individuals did not live at the residence but used it as a home daycare. Constable Hackenbrook could see paramedics working on the child in the living room. The child was purple-blue in color and completely limp.

[15] Constable Hackenbrook spoke to a female in the foyer of the residence. This was Ms. Luckese.

[16] After speaking with Ms. Luckese, Constable Hackenbrook went outside to speak with the others in the driveway. She left Ms. Luckese in the house. Ms. Luckese did not go outside with her.

[17] While she was speaking with the parents in the driveway, Ms. Nguyen arrived and left with the child in the ambulance.

[18] Constable Hackenbrook was told by her sergeant that they needed to secure the residence until there was further information about the cause of the child’s condition. Constable Hackenbrook said that the house was sealed because, among other reasons, it was potentially a crime scene. There was no tape or markers put up around the house.

[19] In Constable Hackenbrook’s mind, Ms. Luckese was not being detained at that point. She denied that she directed Ms. Luckese to stay in the house and not speak with others.

[20] It was cold and windy outside and with no other place to talk, Constable Hackenbrook took Ms. Luckese and her children to her cruiser. Ms. Luckese did not ask any questions about why she was leaving the house. Constable Hackenbrook did not recall what she said to Ms. Luckese to get her to go to the cruiser.

[21] Constable Hackenbrook sat in the front seat and the others sat in the back. The cruiser door was closed because it was cold. The doors in the cruiser locked automatically.

[22] Shortly after entering the cruiser, Ms. Luckese’s husband arrived and the children went to sit with their father in his truck. Ms. Luckese remained with Constable Hackenbrook. Constable Hackenbrook did not know how long the children were in her car and she cannot remember how they went to their father’s truck.

[23] Ms. Luckese was very upset and distraught. She repeatedly asked what was wrong with the child and if she would be okay.

[24] Constable Hackenbrook testified that she was attempting to gather as much information as possible in order to relay that information to the hospital. While in the cruiser, Ms. Luckese told her that Duy-An was 14 months old and in her second day at the daycare. That day, Duy-An had arrived at approximately 10:30 a.m. when dropped off by her father. The child had been crying all day from the time she was dropped off. At 12:00 p.m., she was fed a lunch of chicken noodle soup and Cheerios along with some milk or formula that had been provided by her parents. Though there were no apparent medical issues, she was crying on and off.

[25] At 2:00 p.m., Duy-An was put down for a nap along with all of the other children. She was still crying a lot. She slept for a half an hour and then woke up crying. Ms. Luckese changed her diaper. The child was crying and fighting with her one moment and the next moment “there was nothing”. When she slept, her eyes were open and she was snoring. When Ms. Luckese picked her up, she was limp.

[26] Ms. Luckese called Duy-An’s mother and expressed her concerns about the child sleeping with her eyes open. Duy-An’s mother said that was okay, that the child sometimes slept that way and that she would arrive between 5:15 and 5:30 p.m.

[27] Ms. Luckese said that she repeatedly checked on the child's condition and noted that she was unresponsive.

[28] When other parents arrived to pick up their children at approximately 4:00 p.m., Ms. Luckese asked them to have a look at the child and to say what they thought.

[29] Constable Hackenbrook asked her if there had been anyone ill in the house and Ms. Luckese said that she had the flu on New Year's Day but was otherwise well. None of the other children were unwell. She was not aware of any medical conditions or allergies for the child. Constable Hackenbrook was told nothing else in the cruiser.

[30] Constable Hackenbrook testified that she was asking questions to assist with the child’s medical care and was not endeavoring to take a statement from Ms. Luckese.

[31] At 5:06 p.m., Constables McAllister and Biring of the Peel Criminal Investigations Bureau arrived and she briefed them. This occurred outside the cruiser while Ms. Luckese remained in the back of the cruiser. Constable McAllister said that members of the Special Victims Unit (SVU) were coming. Constable Hackenbrook then got back in the car and continued to speak with Ms. Luckese. Ms. Luckese wanted to know if there was any update of information on the child. She was upset and distraught. Ms. Luckese told her that she had been operating a daycare for 15 years; eight years in that location. Before that, she had been a live-out nanny. She also provided the details of her husband and two children.

[32] Ms. Luckese then asked to use a washroom. Constable Hackenbrook took her to the neighbour’s house and went along in case it was necessary to explain her situation. In cross-examination, she agreed that, in the end, Ms. Luckese was capable of explaining her own need for a washroom. Constable Hackenbrook waited outside the house. She said that she had not completed gathering information from Ms. Luckese and therefore brought Ms. Luckese back to the cruiser.

[33] Ms. Luckese said she did not want to be in the cruiser, so they waited on the street corner by Ms. Luckese’s residence. It was cold and windy and within five minutes they went back into the car where they continued to wait for the SVU. She does not remember who suggested going back into the car.

[34] Detective Thomson of the SVU arrived at 6:34 p.m. During that time, Ms. Luckese did not ask to go anywhere. Constable Hackenbrook said that if Ms. Luckese wanted to, she would have allowed her to do so. In her mind, she was not holding or detaining Ms. Luckese.

[35] She told Ms. Luckese that Detective Thomson wanted to speak with her at the station. She does not remember what she said and has no notes of what was said but Ms. Luckese agreed to go. Constable Hackenbrook had no further contact with Ms. Luckese and left the scene at 6:50 p.m.

[36] In Constable Hackenbrook’s mind, Ms. Luckese was not detained. She had not been placed under arrest. She had no reasonable and probable grounds to arrest because she had no basis to determine that an offence had occurred. Ms. Luckese was cooperative throughout and appeared to want to solve the problem as well. Constable Hackenbrook made no threats, promises or inducements.

[37] Constable Hackenbrook agreed that she was advised that there were no other adults in the house other than the parents she spoke to in the driveway. They were let go because they had nothing to add to the investigation at that point. She was not afraid that Ms. Luckese would flee. Although she could have let Ms. Luckese go after collecting her contact information and followed up with her later, she just did not do so. She only wanted to get information to help the child. She confirmed that Ms. Luckese was with her from 4:32 to 6:42 p.m. except for when she was speaking with the other witnesses in the driveway between 4:32 p.m. and 5:06 p.m.

[38] Constable Hackenbrook testified that Ms. Luckese was not going anywhere except where Detectives Thomson and McAllister told her to go.

[39] Constable Hackenbrook had no idea what had happened to the child. There were a number of reasonable possibilities but it could also have been as a result of a criminal act. If so, the only adult in attendance was Ms. Luckese. Accordingly, there could be serious consequences for her. She did not tell Ms. Luckese of that and did not advise her of her right to counsel or that she could go at any time.

Evidence of Ms. Luckese

[40] Ms. Luckese is now 40 years of age. At the time of these events, she was 35. She had finished high school and had one year of postsecondary education in early childhood education.

[41] In 2011, her daycare had been at the same location for seven years. She had been two years at another location. She employed one other person to help her with her son. Ms. Luckese did the accounting, the taxes and the contracts for the business.

[42] She agreed that she would have done anything possible to assist with the child's care.

[43] At the time of the 911 call, she was panicked, distraught and crying. She believes that the paramedics were the first to arrive. She knew it was important for them to know what had occurred. She had no problem telling them about what had occurred that day to assist them. The parents had also asked what occurred and she told them.

[44] The paramedics were a male and a female. Ms. Luckese was in a state of shock at that time of their arrival and the scene was chaotic. Ms. Luckese agreed that the male twice told her to move away from the child. When she told the paramedics that she waited about an hour before calling, the female paramedic raised her voice and said “why did you wait?" She took that to be an accusation.

[45] She remembers that when Constable Hackenbrook arrived, she asked Ms. Luckese who she was. They stood in the hallway of the house. Constable Hackenbrook told her not to touch anything and not to talk with anyone and then went outside to speak with the others. She denied that she may have been confused and that those instructions may have come from one of the paramedics.

[46] Constable Hackenbrook then came back to speak with her but Ms. Luckese was not sure how long the officer was away. Ms. Luckese was then told by Constable Hackenbrook that they needed to leave the home but she did not recall the reason other than it had to do something to do with the child; she did not ask why she had to leave the house.

[47] She got her sons, Bradley, who was three and Matthew, who was six. They left to sit in Constable Hackenbrook’s cruiser parked in front of the house. Constable Hackenbrook said to go to the cruiser because it was cold and there was nowhere else to go. She was told to get into the backseat while Constable Hackenbrook sat in the driver’s seat. She thought that it was reasonable to go to the cruiser since her husband was not yet there.

[48] She wanted to help with Duy-An’s care and she thought that it was natural for her to be asked questions about what had happened. She asked Constable Hackenbrook if the child would be okay. She thought that Constable Hackenbrook was as concerned about the child as she was. She did not disagree with what Constable Hackenbrook said that she had said.

[49] She wanted to go to the washroom and Constable Hackenbrook said that she could not go back in the house. They therefore went together to a neighbour's house. Constable Hackenbrook came inside with her and waited for her at the bottom of the stairs. She was surprised that Constable Hackenbrook came inside.

[50] They then went back to the cruiser but she stayed outside. She said that she did not want to go back into the cruiser and Constable Hackenbrook said that was okay. She just generally did not want to be in the cruiser. It was nothing that Constable Hackenbrook had said. She was uncomfortable and intimidated in the cruiser. She had never been in a cruiser before nor had she ever dealt with the police before.

[51] It was cold outside so she soon went back inside the cruiser. Constable Hackenbrook was beside her and she had no other place to go. When she got cold, she asked Constable Hackenbrook to allow her back into the cruiser.

[52] She did not know exactly why she was with Constable Hackenbrook. Constable Hackenbrook was asking her questions to help with the child and she wanted to cooperate.

[53] It seemed correct to her that she waited from 4:30 to 6:30 p.m. for Detective Thomson to arrive. Over those two hours, Constable Hackenbrook asked a lot of questions including questions about the daycare. Constable Hackenbrook asked about the child but Ms. Luckese did not recall any questions about what had happened.

[54] She thought that she was a suspect of what had happened because of the way Constable Hackenbrook told her not to touch anything or speak to anyone. Further, it was her view that if a person in authority told one to do something, “you do it”.

Positions of the Parties

[55] Although voluntariness is an issue with respect to the other statements, in argument, defence counsel Mr. Whitzman conceded that these statements made to Constable Hackenbrook were made voluntarily. The real issue is whether Ms. Luckese was, at any point, detained by Constable Hackenbrook and, if so, whether Ms. Luckese’s Charter rights were breached thereafter.

[56] The defence submits that Ms. Luckese was detained from the moment Constable Hackenbrook assumed control of her at her residence or, at least when she entered the cruiser. I should accept that Ms. Luckese was instructed by Constable Hackenbrook not to speak to anyone and not to touch anything. From there, she was directed to the police cruiser and remained with Constable Hackenbrook until Detective Thomson arrived. Ms. Luckese was treated differently than the other witnesses who were allowed to leave. It was not suggested to her that she could join her husband upon his arrival. Constable Hackenbrook accompanied her to the neighbour’s house. All of those factors would lead an ordinary person, without experience with the police, to believe that they had no other choice than to remain with the officer and answer questions.

[57] In response, the Crown submits that the conduct of Constable Hackenbrook, taken as a whole, shows that there was no detention. Of significance, Ms. Luckese did not testify that she felt detained by anything Constable Hackenbrook did. Rather, she testified that her feeling of being detained came from her thoughts alone. All Constable Hackenbrook knew was that there was an unconscious child at the scene. Without more, there were no grounds for arrest and Constable Hackenbrook was simply obtaining information to assist the child. Having run her own small business, Ms. Luckese was sophisticated enough to know that she would have the choice to answer. The questions were not focused and there is no evidence to suggest that the questions were authoritative. On all of the grounds, Ms. Luckese was not detained.

Legal Authorities

Detention

[58] In R. v. Wong, 2015 ONCA 657, at paras. 39-42, Strathy, C.J.O. discussed the circumstances in which detention may be effected:

[39] In Grant, the majority judgment referred to the observations of Le Dain J. in R. v. Therens, to the effect that “[d]etention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist.”

[40] The majority in Grant said that this must be determined objectively, having regard to all the circumstances, including the conduct of the police:

[T]he focus must be on the state conduct in the context of the surrounding legal and factual situation, and how that conduct would be perceived by a reasonable person in the situation as it develops.

[41] The court stated that “psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.”

[42] The court identified a non-exhaustive list of circumstances to determine whether a reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice:

(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. [Emphasis added.]

[59] In R. v. Suberu, [2009] S.C.C. No. 33, at para. 24 the court discussed the principles of detention:

[24] As explained in Grant, the meaning of “detention” can only be determined by adopting a purposive approach that neither overshoots nor impoverishes the protection intended by the Charter right in question. It necessitates striking a balance between society’s interest in effective policing and the detainee’s interest in robust Charter rights. To simply assume that a detention occurs every time a person is delayed from going on his or her way because of the police accosting him or her during the course of an investigation, without considering whether or not the interaction involved a significant deprivation of liberty would overshoot the purpose of the Charter.

[60] In R. v. Grant, 2009 SCC 32, at para. 41, the Supreme Court of Canada discussed the following factors to consider when determining whether a detention took place:

[41] As discussed earlier, general inquiries by a patrolling officer present no threat to freedom of choice. On the other hand, such inquiries can escalate into situations where the focus shifts from general community-oriented concern to suspicion of a particular individual. Focussed suspicion, in and of itself, does not turn the encounter in a detention. What matters is how the police, based on that suspicion, interacted with the subject. The language of the Charter does not confine detention to situations where a person is in potential jeopardy of arrest. However, this is a factor that may help to determine whether, in a particular circumstance, a reasonable person would conclude he or she had no choice but to comply with a police officer’s request. The police must be mindful that, depending on how they act and what they say, the point may be reached where a reasonable person, in the position of that individual, would conclude he or she is not free to choose to walk away or decline to answer questions.

Analysis

The circumstances giving rise to the encounter:

[61] Whether or not Ms. Luckese was directed, as she says, by Constable Hackenbrook, I do not take those comments to mean that Ms. Luckese was detained at that time. Constable Hackenbrook had very little information of what had occurred and had no reason to suspect Ms. Luckese of anything. At worst, she was a bit brusque in her management of potential witnesses but nothing more than that.

[62] Offering the only warm location to get further information, without more, was also not a detention of Ms. Luckese. However, as time went on, the circumstances changed. The Criminal Investigation Bureau arrived. It was determined that Ms. Luckese should wait for the arrival of the SVU.

[63] Constable Hackenbrook apparently did not consider the option of allowing Ms. Luckese to wait with her own family or to depart, and be interviewed later. The house was sealed and Ms. Luckese could not return to it until the police allowed her to do so. Ms. Luckese was kept in the backseat of the cruiser with at least one other police vehicle in attendance in full view of her neighbours. As information was obtained, Constable Hackenbrook would be aware that there was only one adult in the premises when something happened to the child. Then, when she needed to use the washroom, the officer followed her.

[64] Both Ms. Luckese and Constable Hackenbrook acknowledged that they were aware that she could become a suspect.

The nature of the police conduct:

[65] While I accept that Constable Hackenbrook had no reasonable and probable grounds to arrest, her inability to consider Ms. Luckese’s situation points towards an objective finding of detention. She simply did not consider letting the distraught Ms. Luckese go to her family. She simply did not consider obtaining Ms. Luckese’s contact information and following up with her later as she did with the other parents in attendance. For want of any other plan, Constable Hackenbrook maintained Ms. Luckese’s presence with her for most of two hours.

[66] Objectively, MS. Luckese was kept in a locked cruiser when Constable Hackenbrook went to speak with other officers. She was kept from her family. She was escorted to use the washroom. She was questioned throughout. It would be reasonable for her to think that she had no other choice.

The characteristics and circumstances of the accused:

[67] I agree with the Crown that Ms. Luckese did not specifically testify that she felt detained while with Constable Hackenbrook. However, she did make it clear that, besides cooperating for the good of the child, when told by someone in authority to do something “you do it”.

[68] Ms. Luckese was intimidated in the police cruiser. She did not understand why Constable Hackenbrook attended with her to go to the washroom. She did not know why she was with Constable Hackenbrook. It is reasonable on all the evidence to find that she was detained.

[69] Although Ms. Luckese was with Constable Hackenbrook for approximately two hours, that is not to say that she was detained for two hours. Part of the time, Constable Hackenbrook was speaking with the other parents in the driveway. Some of the time in the cruiser was spent appropriately questioning about the circumstances. Some unknown part of the time was spent waiting for Mr. Luckese to arrive. On the other hand, by the time Detective Thomson arrived, I have no doubt that Ms. Luckese was detained. In my view, the dividing line is when Ms. Luckese was escorted to the neighbour’s house to use the washroom. By that point, I have no doubt that she was objectively detained.

Charter Breach

[70] In argument, the Crown specifically took the position that if I found that Ms. Luckese was detained, any statements made by her after that point should be inadmissible. On that basis, I need not carry out a Charter analysis pursuant to section 24(2).

2. Statement to Detective Bruce Thomson (Interview)

Background

[71] After Detective Thomson took over the investigation, he obtained a statement from Ms. Luckese. That statement was videotaped. The videotape and the transcript were made exhibits.

[72] While other witnesses testified, it appears that was only to clarify whether there were any threats, promises or inducements given to Ms. Luckese by others to obtain a statement from her. Since no reference was made to these witnesses in argument, I have left their testimonies out of these summaries.

Evidence of Detective Thomson

[73] Detective Thomson has been with Peel Regional Police since July 1988. In January 2011, he was with the SVU. He was first involved in this case on January 5, 2011. At 4:45 p.m. he was advised that there was a one-year-old child with “vital signs absent’. The child had been on her second day at a daycare at 2075 Asta Road, unit 33. He was given an occurrence number and no other information.

[74] At 5:10 p.m., he went to the address with Constable McPherson. They arrived at 5:40 p.m. At the location, he was briefed by Constables McAllister and Biring of the Criminal Investigation Bureau. He then spoke to Constable Hackenbrook. Constable Hackenbrook pointed out Ms. Luckese as the person from the daycare.

[75] Before speaking with Ms. Luckese, he did not know what he was investigating. He introduced himself to Ms. Luckese. He explained that he was with Peel Regional Police and the SVU. He was in business casual clothing. He said that he would like to speak with her since she was looking after the victim and would be able to provide insight as to what had occurred. She appeared to be open to that. She appeared to be appropriately concerned. He asked to interview her on video at the SVU.

[76] During this interaction she was upset, but appropriately so in the circumstances. Nothing else was discussed at that time. She had no issue with accompanying him to the SVU. In his mind, Ms. Luckese was not detained; she was only a witness. He denied that Ms. Luckese was in detention but he did not ask if she had been detained before he arrived.

[77] In asking Ms. Luckese to accompany him to the SVU, Detective Thomson said something like “would she be willing to”. He did not offer that she could come on her own. She came to the SVU in his car. That would be convenient and she was agreeable to that. He had made no arrangements to return her. The police could have returned her. However, such arrangements would depend on how the interview went. If she had not agreed to come to the station, she would have been under no obligation to do so. However, she was reasonable and concerned. She agreed to give a statement.

[78] Constable McPherson drove the unmarked car. There was no barrier between the seats. Detective Thomson sat in the back with Ms. Luckese. They left at 6:28 and arrived at 6:42. At this point, he had no grounds to arrest and was not yet aware of whether an offence had even occurred. The child's condition may have been as a result of illness, other medical problems or injury.

[79] They had no conversation with Ms. Luckese in the car. Detective Thomson did not wish to speak with her and thought it best to wait until making the video statement to do so. Ms. Luckese was upset and he left her to her own thoughts.

[80] Once at the SVU, they parked and walked in the front entrance. She asked to go to the washroom and Detective Thomson allowed her to do so. He then took her to the interview room.

[81] He was aware that Ms. Luckese was the only adult present in the house when the events occurred. However, there was a possibility that her six-year-old son or someone in the days prior could have caused injury to the child.

[82] At the beginning of the interview, she was not under arrest but he did not know where the interview would go. He could not rule her in or out as a suspect so he thought it best to advise her of her rights. He wanted to make sure that she had a full comprehension of her situation.

[83] The video starts at 7:07 p.m. Ms. Luckese is still dressed in her coat and tearful. Detective Thomson makes it clear that she is not under arrest but also explains her right to counsel, cautions about her statements and gives her an opportunity to call duty counsel at any time. She was told that she is not under arrest and free to leave. He said the following to Ms. Luckese:

Detective Thomson: Okay. Um, do you know Canada’s a great country and stuff like that; any time the police are involved in an-, in an investigation um, and I tell everyone this upfront um, the you’re certainly not under arrest, okay? And I just wanna be clear with that to you, cause that’s obviously a concern in people’s minds or something they can have that concern and I just, I wanna tell you that, you know, right now, you know I’m on a kind of like a fact finding mission, because I wanna find out exactly you know um, what happened to this child if anything. I don’t know there might be a very valid medical reason um, um, that something’s gone on with her. I don’t know.

Ms. Luckese: Okay.

Detective Thomson: Okay? Um, but you know, since we live in Canada and it’s such a great country that we, we do have certain rights, okay? We obviously have lots of responsibilities too but we do have-, we do have uh, certain rights under the law and uh, one of them is that any time that uh, you know the police are involved in an investigation of, of any such nature and stuff like that and some of the people that we speak to um, you know those people certainly have the right um, to retain and instruct counsel without delay. And what that means is they can speak to a lawyer at any point in time that the-, that they wish to. And you know, because I’m speaking to you um, that, that certainly is your right at any point in time, okay, do you understand that?

Ms. Luckese: Yeah.

Detective Thomson: Okay. And because of that you, you can phone any lawyer that you want if you wish at any point in time. And some people don’t have a lawyer; if I don’t have a lawyer and you can also call to get free advice from a Legal Aid lawyer at any point in time. A Legal Aid lawyer is a lawyer um, just like any other lawyer but it’s one that we can get a, a hold of um, through the telephone, there’s kind of like uh, a centre that houses, a, a few different lawyers and I guess they, you know, they take turns type thing. And we can call them there and, in quite short order um, you know anyone can be speaking with a, a lawyer at any point in time and that’s free of charge as well.

Ms. Luckese: Okay.

Detective Thomson: Okay? So I just wanted to let you know about that. And you know if anyone is charged um, in any criminal investigation that the police conduct um, they can apply to the Ontario Legal Aid Plan for legal assistance depending on you know like obviously if a person makes a million dollars a year they can probably afford their own lawyer, but if uh, people don’t have as much money then they can apply for legal assistance and uh, a lawyer will be provided for them.

Ms. Luckese: Okay.

DetectiveThomson: Okay? And that phone number that I was telling you about that we can speak with a lawyer at any point in time it’s a 1-800, a 100 number and I don’t expect you to rememberize[Sic] it but I’ll, I’ll, I’ll tell you now anyway, it’s 1-800-265-0451 and that will put you in contact with a Legal Aid Duty counsel lawyer for free legal advice uh, right now, okay? And as I said uh, that’s something that at any point in time if you wish you just have to say Bruce um, I’d like to speak with a lawyer and I can certainly uh, do that, okay? And uh, so do you understand what I’ve told you about that?

Ms. Luckese: Yes.

Detective Thomson: Okay. And do you wish to call a, a lawyer right now?

Ms. Luckese: No.

Detective Thomson: Okay. And at any point in time as I say, if anything changes you can just let me know and uh, I’ll certainly do that, but I, I do appreciate you very much coming back with us and uh, I’m very concerned as well for how, how she’s doing and stuff. Okay?

Ms. Luckese: (Nods head yes.)

Detective Thomson: And anytime as well that a person’s speaking with the police and I don’t know what kind of investigation that this, you know where this is going cause as I say they’re, they’re still doing many, many tests on the, on this girl. But uh, no one ever has to talk to the police unless (Inaudible)-, unless they wish to do so. Um, but you know obviously whatever you say to me if uh, and you-, it’s being recorded, okay? And anything that obviously is told to a police officer can be used in, in court if it-, any, any investigation ever wound up in court obviously something that’s told to a police officer can be told to a judge, so do you understand that?

Ms. Luckese: Yes.

Detective Thomson: Okay. Now you may have spoken to another police officer down at the uh, I know there was a uh, a woman police officer um, that was keeping you, keeping you warm in her car and stuff like that. And to-, cause I guess your house, your house right now it’s-, and I guess it’s being what we would call frozen right now; you know there’s a police officer outside, you know we’re trying to uh, understand like is this a, I, I don’t know it’s the flu season as well that’s going around right now, so who knows at this point in time. And we wanna make sure that everyone’s safe and um, so that’s the reason why that is being done until we know, until we know more I guess is what i-, is the best way to describe it. So…

Ms. Luckese: Okay.

Detective Thomson: Um, but if you have spoken to any police officer or to anyone in authority or if any such person has spoken to you in connection with this I wan-, I want it clearly understood that just because you’ve spoken to them doesn’t mean you have to speak to me or, or any-, or any other police officer or anyone else in authority. Do you understand that?

Ms. Luckese: Yep.

Detective Thomson: Okay. All right. Um, now are you comfortable?

Ms. Luckese: Yeah.

[84] He did not read her the rights from his notebook card but he may have referred to it when he spoke with her.

[85] He thought that she appeared to be aware of why she was there.

[86] At 7:55 p.m., on a break, Detective Thomson obtained further information from the hospital.

[87] Early in the interview, Ms. Luckese denies knowing what happened to the child. By 8:20 p.m., however, she says that she tripped when she was bringing the child out of her playpen, and the child hit her head on the banister.

[88] As a result of her answers, Detective Thomson then arrested her for aggravated assault. He arrested her because he did not believe her explanation of the injuries to the child. The injuries were not consistent with the information that he had received from the hospital. Therefore, at that moment, he first believed that he had grounds to arrest.

[89] Detective Thomson then said the following to Ms. Luckese:

Detective Thomson: Okay. Okay, right now I have to tell you that you’re under arrest, okay, for aggravated assault, okay? And all those things that I told you about earlier you can certainly speak with a lawyer at any point in time that you wish. I can-, and you don’t have to tell me anything about this unless you wish to do so, okay?

Ms. Luckese: I didn’t mean to; it was an accident.

Detective Thomson: Do you, do you, do you understand though that what I’ve told you that you’re under arrest for aggravated assault?

Ms. Luckese: (Nods head yes.)

Detective Thomson: I’m sorry?

Ms. Luckese: Yes.

Detective Thomson: Okay, and do you understand you can call a lawyer at any point in time?

Ms. Luckese: (Nods head yes.)

Detective Thomson: I’m sorry?

Ms. Luckese: Yes.

Detective Thomson: Okay. And all you need to do is say Bruce I’d like to call a lawyer, do you understand that?

Ms. Luckese: Yes.

[90] At 8:25 p.m., Detective Thomson leaves the interview and returns with a baby doll so that she can re-enact what occurred. She cries and says “I can’t” and he drops the idea.

[91] At 8:28 p.m., she says that she shook the child and agrees that she did not trip and fall, causing the child to hit the banister.

[92] At 8:30 p.m., Detective Thomson asks if she is sure she does not want to speak with a lawyer. Ms. Luckese responds that she should. Detective Thomson holds off on questioning until she completes her call.

[93] At 9:14 p.m., she is able to speak to duty counsel for a total of three minutes. She then goes to the washroom.

[94] At 9:21, she confirms that she understood what she was told by duty counsel but Detective Thomson continues to ask questions and she continues to answer.

[95] At 9:23, she says:

Ms. Luckese: He-, he told me not to talk anymore. I, I don’t even know what I’m supposed to do right now. Is she okay? Have you heard anymore?

Detective Thomson: I have not heard anymore.

Ms. Luckese: Okay.

Detective Thomson: It’s entirely up to you what you want to do April; but I think you’re a very decent person.

Ms. Luckese: (Nods head yes.)

[96] At 9:24 p.m., Detective Thomson asks if she wishes to write an apology letter to the parents. She accepts his idea and writes the apology letter. After she writes the letter she says the following to Detective Thomson:

Ms. Luckese: What am I supposed to do? He told me not to say anything but I wanna cooperate with you.

[97] At 10:06 p.m., she asked for some food since she had not eaten since the morning. At 11:23 p.m., Detective Thomson allowed her to pick up food at a Tim Hortons on the way back to her house.

[98] Although Detective Thomson said that the information he was requesting would assist with Duy-An’s treatment, he did not take her to the hospital because the information could be relayed to the doctor from the interview. He relayed that information at 11:14 p.m. but not earlier. He denied that it was a ruse to get her to give information by saying that it would assist with the medical help. However, he was never requested by a doctor to obtain the information. He did not believe that the information would assist with the medical treatment. Eventually, he agreed that this was an appeal to her conscience to provide information rather than to provide information to the treating physicians.

[99] He agreed that he used tactics such as minimization of her responsibility, appeals to her sense of conscience and sense of guilt as well as deflection to get her to give a statement. He did not plan a strategy in advance but rather relied on his experience in similar interviews. He said that he treated her as a fellow human being and that he treated all persons in that situation as he would expect to be treated. He found that such conduct encouraged witnesses to make admissions. He was, however, sincere in his compliments to her.

[100] He did not agree that he was suggesting answers. He did not interrupt her. He did agreed that he got her to agree to his leading questions. He denied that he badgered her. He agreed that using the doll was too much for her.

[101] He agreed that he had her write an apology letter to allow her to show remorse but also to provide an additional piece of evidence. He denied that he tried to lull her into a false sense of security to make admissions.

[102] He agreed that she was upset, concerned and emotional at times.

Evidence of Ms. Luckese

[103] Ms. Luckese introduced himself. He said that he was from the SVU and wanted to speak with her. She cannot remember whether she was inside the cruiser or out when he arrived. He asked her to go in his car and she did so.

[104] At the SVU, she was very upset. She was worried, scared and did not know what was happening. She saw the child leaving in the ambulance and did not know how she was going to be. She was asked to give information that would help with the child's medical care and she wanted to assist.

[105] Detective Thomson did not say that she had to go with him and she did not ask to drive herself. She knew that he was looking for any information that would explain what had happened to the child. She thought that she could be a possible suspect. She knew that she was being audio and videotaped during her interview. She knew that she could call a lawyer but she chose not to do so. She thought that she could not leave but that came “from her own thought process” and not from anything that Detective Thomson said. She understood her rights before and after arrest. She chose not to call a lawyer. She understood that she did not have to speak to Detective Thomson.

[106] It was not true that she tripped with the child. She thought that he thought that she had done something wrong and so she thought that she should say something about it. She was surprised when she was arrested. It is not true that she shook the child. It was a lie to say that she tripped over the mat. She felt that she needed to agree with Detective Thomson so that he would stop asking her questions.

[107] When she spoke with duty counsel, she was told not to talk to the police. She did not follow that advice because Detective Thomson “kept at her”.

[108] She wrote the apology letter because she thought that something had happened to the child but then when things had settled, she realized that was not true. She believed the letter to be true at the time. She came to believe it because Detective Thomson suggested it.

Positions of the Parties

[109] The Crown submits that there is simply no evidence that there were inducements, threats, promises or an overbearing of Ms. Luckese’s will. Rather, Ms. Luckese wanted to cooperate by answering questions despite the advice that she received from counsel. Cooperating was her own choice, freely given and voluntary.

[110] In response, the defence submits that I should consider the individual involved. Ms. Luckese is not a “shrewd and sophisticated criminal” and I should be concerned whether her statements were voluntary. Since some of her statement is demonstrably false, I should examine it carefully to see if it was induced.

[111] The defence objects to the various tactics that were used by Detective Thomson and raises the concern that they created a danger of eliciting an unreliable confession.

[112] In particular, the defence submits that Detective Thomson deceived Ms. Luckese by suggesting that her information was needed for the child’s medical treatment. Not only was this a trick to obtain the information, I should be concerned about Detective Thomson’s credibility given his failure to admit the obvious.

[113] The defence submits that there was oppression of Ms. Luckese in that Detective Thomson should have known that she had not eaten since the morning and should have provided her with food before he conducted the interview.

Legal Authorities

Voluntariness

[114] In order for such a statement to be admitted, the Crown must prove beyond a reasonable doubt that the statement was made on a voluntary basis.

[115] In R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 33,47,68 and 71, (Oickle) Iacobucci J. clarified the confessions rule:

33 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 . . :

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.

2. The Contemporary Confessions Rule

47 The common law confessions rule is well-suited to protect against false confessions. While its overriding concern is with voluntariness, this concept overlaps with reliability. A confession that is not voluntary will often (though not always) be unreliable. The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.

(e) Summary

68 While the foregoing might suggest that the confessions rule involves a panoply of different considerations and tests, in reality the basic idea is quite simple. First of all, because of the criminal justice system’s overriding concern not to convict the innocent, a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. Both the traditional, narrow Ibrahim rule and the oppression doctrine recognize this danger. If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it. Between these two extremes, oppressive conditions and inducements can operate together to exclude confessions. Trial judges must be alert to the entire circumstances surrounding a confession in making this decision.

71 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. On the other hand, where the suspect is treated properly, it will take a stronger inducement to render the confession involuntary. [References Omitted]

[116] Continuing with this analysis, Iacobucci J. stated the following at paras. 58, 60 and 61:

(b) Oppression

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

60 . . . Under inhumane conditions, one can hardly be surprised if a suspect confesses purely out of a desire to escape those conditions. . . .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.

61 A final possible source of oppressive conditions is the police use of non-existent evidence. . . . .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.

[117] Further, in R. v. Amos [2009] O.J. No. 4852, (Amos) J. R. McKinnon made the following remarks about confessions rule at paras. 12, 13 and 15:

12 The historic core of the rule is that a confession by a suspect will be inadmissible if it is the result of “fear of prejudice or hope of advantage” exercised or held out by a person in authority. Threats or inducements made to obtain a confession become improper where a reasonable doubt exists as to whether the will of the subject has been overborne – that is, that the subject’s will to resist and effectively control his right to choose to speak or remain silent has been sapped.

13 Even if a police interrogation contains subtly coercive elements, this will not necessarily result in a finding that the confession was involuntary and inadmissible. It must be apparent that there be some clear, causal connection between the alleged police misconduct and the subsequent confession for a ruling of inadmissibility.

15 . . . . I keep in mind the instruction of the Supreme Court of Canada in R. v. Rothman, where the court held that police must sometimes of necessity, resort to tricks or other forms of deceit – as long as it is not conduct that shocks the community.

[118] In Amos, Justice McKinnon reviewed all the various techniques that the constable used. His Honour considered direct positive confrontation, a quid pro quo arrangement, the highlighting of the accused’s redeeming qualities, as well as the interviewer’s use of deceit, minimizing the accused’s moral responsibility and moral inducements. Justice McKinnon found none of those tactics to be contrary to the accused’s rights.

Analysis

Voluntariness

[119] Although Ms. Luckese is obviously upset and crying from time to time throughout the interview, she is also clearly trying to assist Detective Thomson. At other times, she is calm, responsive and appears to be well. She makes no complaints to stop the interview at any time. When Detective Thomson takes a break at approximately 8:00 p.m., she sits calmly and awaits his return.

[120] Throughout the interview, Detective Thomson is calm. He does not badger her in any way or is anything but fair with her. Indeed, both in that interview and in her evidence at trial, Ms. Luckese agreed that he was fair with her. While the view of the accused is not determinative, it may be a factor that I can take into consideration to determine whether her statements to Detective Thomson are voluntary.

[121] While Detective Thomson may have attempted to persuade Ms. Luckese to give a statement under the guise of asking for medical advice, I do not see that tactic as something that would shock the conscience of the community.

[122] The balance of his tactics, even collectively, did not amount to trickery that would shock the conscience. Furthermore, I find that his tactics did not overwhelm her choices.

[123] There is no evidence of any threats, promises or inducements.

[124] I am satisfied beyond a reasonable doubt that Ms. Luckese’s statements to Detective Thomson were voluntary.

Charter Breach

[125] Since Constable Hackenbrook detained Ms. Luckese prior to meeting Detective Thomson, there can be no doubt that Ms. Luckese was detained with Detective Thomson. The legal issue I must resolve is whether she was given her required Charter rights.

Positions of the Parties

[126] The defence submits, firstly, that Detective Thomson’s review of Ms. Luckese’s rights at the outset of the interview were paraphrased; they were provided in a pro forma and confusing manner. Further, he was vague as to the scope of the investigation and did not provide Ms. Luckese with enough information about her jeopardy. Since he placed those rights in the future tense, she would not be certain of whether she was a potential suspect or an accused.

[127] Secondly, when Ms. Luckese’s position changed from a potential suspect to an accused, she should have been advised of her rights to counsel again and thoroughly.

[128] In response, the Crown submits that the rights given to Ms. Luckese at the outset of the interview were satisfactory and there was no Charter breach. Further, the detective’s reference back to that discussion after she was charged is sufficiently close in time to satisfy Detective Thomson’s obligations and protect Ms. Luckese’s Charter rights.

Legal Authorities

[129] In R. v. Schmautz, 1990 CanLII 134 (SCC), [1990] S.C.J. No. 21 at para. 51, Gonthier J. said the following about an accused’s right to counsel under s. 10(b) of the Charter:

In this respect, the fact that the advice is given before detention is not determinative. As Wallace J.A. pointed out in the Court of Appeal below, while s. 10(b) does not require the state to inform a person under mere investigation of his or her right to retain and instruct counsel before he or she is detained or arrested, there is nothing that prohibits, as a general rule, the investigating constables from giving such a warning when investigation begins or during its course. It cannot be that a warning falls short of being sufficient compliance with s. 10(b) of the Charter for the sole reason that it is given before the exact moment in time when detention commences. The concept of detention has evolved since the Charter came into force and it is not always easy to determine in given circumstances whether and when it legally occurs. From the mere investigation to which a person wilfully collaborates to the custodial arrest of that person, there is a wide spectrum encompassing the varying degrees of legal jeopardies in which the state can put individuals; in some cases, the precise moment when detention arises is by no means easy to ascertain. Keeping that in mind, it is understandable that police constables sometimes lean towards greater caution to make sure that a person is aware of his or her rights at any relevant time and give the warning when investigation commences or during its course. Finding a Charter violation upon the sole fact that the warning was read before detention arose would be demonstrative of a legalistic and technical approach having little regard to the purpose of s. 10(b), as reflected by its very wording. It provides in its English version that "[e]veryone has the right on arrest or detention" (emphasis added) to retain and instruct counsel without delay and to be informed thereof. The French version reads: "[c]hacun a le droit, en cas d'arrestation ou de détention" (emphasis added). If one reads the two versions together it becomes clear that s. 10(b) refers to a factual connection between the detention and the right to a warning rather than a mere coincidence in time. It is true that the temporal aspect becomes vital at one point because the warning must be given "without delay”. . . If the warning is given before detention, however, the only requirement is a close factual connection relating the warning to the detention and the reason therefor. The existence of the required link will depend on the facts of each case.[References removed.]

Analysis

Fresh Start In Time

[130] The defence conceded that there had been a “fresh start” in time between the failures of Constable Hackenbrook to advise Ms. Luckese of her right to counsel and the statement she gave to Detective Thomson. In other words, the defence concedes that a breach of s. 10(b) by Constable Hackenbrook did not taint the statements to Detective Thomson that followed. However, it appears that I still need to analyze that issue as per R. v. Manchulenko 2013 ONCA 543 (Machulenko).

[131] In Machulenko, at paras. 67-73, Watt J.A. said the following about “fresh starts”:

[67] Sometimes, something of evidentiary value, considered alone, does not appear to fall foul of any admissibility rule. Nevertheless, the evidence, for example a confession of crime, may be sufficiently connected to an earlier involuntary (hence inadmissible) confession that it is considered involuntary by this association. The derived confessions rule excludes statements which, despite not being involuntary when considered alone, are sufficiently connected to an earlier involuntary confession to be rendered involuntary and hence inadmissible. Each subsequent confession may be involuntary if the tainting features that disqualified the first continued to be present, or if the fact the first statement was made, was a substantial factor contributing to the making of the second or subsequent statement. Where the earlier contaminant is a Charter breach, s. 24(2) provides its own formula for exclusion.

[68] In some circumstances, conduct by investigators prior to a second statement may sever the link between the original taint and the subsequent statement. In other words, investigators may attempt a “fresh start” in order to insulate the second statement from the taint that rendered the earlier statement inadmissible. Where the antecedent taint is a Charter infringement, a fresh start may clearly sever the subsequent statement from the earlier Charter breach. Ultimately, the sufficiency of the connection between the Charter breach and the subsequent collection of the evidence requires a case-specific factual inquiry to determine whether the post-breach acquired evidence was “obtained in a manner that infringed or denied” any enumerated Charter right of the person charged.

[69] Where the evidence tendered for admission is a subsequent statement to persons in authority, a consultation with counsel may have the effect of severing the subsequent statement from an earlier breach of the right to counsel. But no bright line rule automatically immunizes the subsequent statement from the prior Charter breach. The effect of the later consultation on a determination of whether the subsequent statement was “obtained in a manner” that infringed an accused’s right to counsel requires and falls to be decided on the basis of a fact-specific inquiry.

[70] No principled reason exists to confine the “fresh start” jurisprudence to cases involving successive statements made to persons in authority. The rationale that underpins the “fresh start” principle is the same irrespective of the specific form the evidence proposed for admission takes.

[71] Section 24(2) of the Charter only excludes evidence where an accused has demonstrated, on a balance of probabilities, an infringement or denial of his or her enumerated Charter rights or freedoms, and that the evidence proposed for admission was “obtained in a manner” that infringed or denied the accused’s Charter right or freedom. This latter requirement insists that there be a nexus, expressed in the language “obtained in a manner” in s. 24(2), between the infringement and the evidence proposed for admission. In the absence of a nexus, or of an infringement, s. 24(2) has no application and the admissibility issue must be resolved otherwise.

[72] To determine whether the nexus requirement has been met, the trial judge must undertake a contextual and case-specific analysis. Courts have adopted a purposive and generous approach to the nexus requirement. An accused need not establish a strict causal relationship between the breach and the subsequent evidence. The subsequent evidence will be tainted if the breach and the evidence can be said to be part of the same transaction or course of conduct. The essential nexus between the breach and the evidence acquired later may be temporal, contextual, causal, or the three in combination. Remote or tenuous connections fall short of establishing the necessary nexus.

[73] As a general rule, a temporal connection between the Charter breach and the acquisition of the evidence will suffice to make out the nexus requirement under s. 24(2). But the temporal connection involves more than simply counting up the time that has elapsed between the two events. What happened between the breach and the evidence collection can colour the significance of the passage of time.

[132] Further, Watt J.A. referred to this issue in R. v. M.D., 2012 ONCA 841 at paras. 53-57 and 59:

The Derived Confessions Rule

[53] The derived confessions rule is a common law rule that governs the admissibility of a confession that has been preceded by an involuntary, thus inadmissible confession. The derived confessions rule is not a per se or bright line rule that excludes all subsequent confessions on the ground that they are tainted, irrespective of the degree of their connection to the prior inadmissible statement . . .

[54] To determine whether a subsequent statement will be excluded under the derived confessions rule because of the taint left by its involuntary and thus inadmissible predecessor, a trial judge must examine all the relevant circumstances to determine the degree of the connection between the two statements . . . The Supreme Court of Canada has set out some of the relevant circumstances or factors to consider in determining the degree of connection between the two statements, and thus the influence of the antecedent taint . . . These include but are not limited to:

• the time span between the statements;

• advertence to the earlier statement during questioning in the subsequent interview;

• discovery of additional information after completion of the first statement;

• the presence of the same police officers during both interviews; and

• other similarities between the two sets of circumstances.

[55] The application of these factors will render a subsequent statement involuntary if either the tainting features that disqualified the first continue to be present, or if the fact that the first statement was made was a substantial factor that contributed to the making of the second statement . . . It will generally be easier to establish that tainting affected the first when both these conditions are present. In the end, however, what matters most and mandates exclusion is that the connection is sufficient for the second to have been contaminated by the first . . .

[56] The inquiry required when the derived confessions rule is invoked to exclude a subsequent statement is essentially a causation inquiry that involves a consideration of the temporal, contextual, and causal connections between the proffered and earlier statements. . . The inquiry is a case-specific factual inquiry . . .

[57] Despite its origins as a common law rule where lack of voluntariness is the contaminating factor, the derived confessions rule is of more general application. The contaminating factor may be constitutional infringement, say a breach of s. 10(b) of the Charter. There, the subsequent statement is tainted if the breach and impugned statement can be said to be part of the same transaction or course of conduct. The admissibility analysis in these cases is performed under s. 24(2) of the Charter. . .

[59] To determine whether the derived confessions rule will warrant exclusion of a subsequent statement, a trial judge must follow a contextual and fact-based approach . . . The nature of the inquiry and the findings required in the derived confessions analysis have implications for the scope of appellate review. The admissibility of a confession that has been preceded by an involuntary (or otherwise) inadmissible confession, in other words, the application of the derived confessions rule, involves a factual determination based on factors designed to ascertain the degree of connection between the two statements . . . This determination, like a determination of whether a statement is voluntary or compliant with s. 146(2) YCJA, is largely a question of fact. Appellate review of the judge’s decision is limited to deciding whether the judge erred in her assessment of the evidence, failed to consider relevant circumstances, or failed to apply the correct principles . . .[References removed.]

[133] With the above cases in mind, I cannot find a tainting breach on this record. It appears that Ms. Luckese gave no statements after she was taken to the neighbour’s house by Constable Hackenbrook and before the start of the video statement by Detective Thomson. There was no evidence led or submissions made by the defence to establish a connection between her detention and the statements she gave. For reasons set out below, I can find that Ms. Luckese was properly advised of her rights and provided with an opportunity to speak with counsel when her interview commenced with Detective Thomson.

[134] Accordingly, there is no concern for tainting made out on this record.

[135] I found Detective Thomson to be, in most respects, a credible witness. The video shows him to be respectful of Ms. Luckese and her rights. Notably, Detective Thomson provided Ms. Luckese with her rights and reminded her of them seven times in this interview which lasted approximately four hours. Each time he did so, she acknowledged that she understood. She eventually accepted his opportunity to speak with counsel.

[136] Ms. Luckese’s jeopardy did not change without notice. Initially, she was told that she was only a witness but that she might need counsel. She was arrested when Detective Thomson believed that he had reasonable and probable grounds to arrest. While the defence submits that there may have been grounds to arrest shortly before that depending on how one interpreted her answers, I cannot fault Detective Thomson for the timing of the arrest.

[137] It is clear on the record that Ms. Luckese understood her right to contact counsel at any time. Detective Thomson’s instructions to her, “You just have to say Bruce, I’d like to speak with a lawyer and I can certainly do that”, cannot be much clearer. Detective Thomson did not have to stop from time to time to ask if she wished to speak with a lawyer.

[138] The evidence at hearing was that there was no food readily available in the station during the hours of her interview and that there was none nearby. I cannot find that food was intentionally or unintentionally kept from Ms. Luckese. Efforts were made by Detective Thomson as soon as Ms. Luckese raised the issue. She did not testify that a lack of food affected her decision making. She said that Detective Thomson was fair with her. The absence of food does not rise to the level of oppression as set out above.

[139] Ms. Luckese testified that she understood her rights and chose to answer Detective Thomson. Except for what I set out below, I find no breach of Ms. Luckese’s rights by Detective Thomson.

Section 24(2)

[140] Since I find no breach of Ms. Luckese’s rights, I need not carry on to analyze whether her statements should be excluded.

3. Ms. Luckese’s Call to Her Husband

Evidence of Detective Thomson

[141] At 8:30, Detective Thomson prompts Ms. Luckese to call a lawyer and she says “I think I should”. However, she did not know of a lawyer. She asked to speak with her husband to see if he knew of a lawyer. Detective Thomson says:

“Okay. Um, so you would like me to call your husband then to see if he knows of a lawyer?” She nods yes.

[142] Detective Thomson then arranges that call. It was relatively easy for him since Mr. Luckese was being videotaped while answering questions at another station.

[143] The conversation between Mr. and Ms. Luckese was then video and audio taped in the interview room while Detective Thomson sat beside Ms. Luckese.

[144] Detective Thomson testified that he allowed her to speak with her husband to see if he knew of a lawyer. This is not usually allowed. He remained to write down the lawyer’s name and number. It was his view that the information obtained from the call was not privileged. He testified that, in any event, she knew that the phone call was being video and audio recorded and that he was sitting with her. He was aware that Mr. Luckese was also being recorded at the same time.

[145] Detective Thomson agreed that she would have a right to privacy to speak with her counsel. However, in his view, she was not exercising her right to counsel but only speaking with her husband. When she was speaking with counsel, he stopped the recording.

Evidence of Ms. Luckese

[146] Ms. Luckese said that she was aware that Detective Thomson was there when she spoke with her husband. She did not think that she could tell him to leave. She knew that the phone call to Mr. Luckese was about getting a lawyer. She knew that her conversation with her husband was taped.

[147] In that call, she said:

Ms. Luckese: (Speaking on the telephone) Rob? … Hi… No …I’m in trouble…I’m sorry. (Crying)…I’m sorry. I hurt her. I hurt her…I shook her…I don’t know…I don’t know…I’m sorry, I’m so sorry…Rob?...I need a law-, I don’t know what to do…I’m a monster; sorry I’m a monster…

Detective Thomson: Does Rob know the name of a lawyer?

Ms. Luckese: The Detective’s asking if you know the name of a lawyer…

Detective Thomson: If that’s what you want to do April.

Ms. Luckese: …Do I get-, what?...Do I get them to get me a lawyer?...I’m so sorry…Okay…Do you even want to?...Do you even want to?...Okay…Okay…Okay…I’m sorry…Uh, snapped…I don’t know…I wish I could take it back…Yeah, I know…Okay. Okay. Take care of the boys. I love you. I’m sorry. Bye. (Hands up the telephone)

Positions of the Parties

[148] The defence submits that by remaining in the interview room when Ms. Luckese called her husband, Detective Thomson breached her rights to retain and instruct counsel without delay. The defence asserts that failing to allow her to have privacy in this call shows an “extraordinary ignorance of the law in this area.” He argues that this is an egregious breach of Ms. Luckese’s rights and as such, her statement should be excluded.

[149] Further, the defence submits that Detective Thomson’s breach of privacy is so serious that the entirety of her statement, both before and after she called her husband, should be excluded.

[150] In response, the Crown submits that the case law, properly read and understood, does not support the view that calls made to a person other than a lawyer must be made in privacy. Calls to people other than lawyers could jeopardize an investigation, particularly here, where the investigation was at a very early stage.

Legal Authorities

[151] In R. v. Kumarasamy, 2002 O.J. No. 303, Durno J. summarized the case law to that point and made the following conclusion at paras. 25-26:

[25] In the vast majority of cases, once the detainee has expressed a desire to contact counsel, police must facilitate the detainee’s efforts to do so. . . This obligation includes facilitating contact with counsel of choice where a request has been made to speak to a specific counsel. This is so whether the person has counsel’s number available or not. It also includes permitting a phone call to a friend or relative to obtain the name of counsel of choice.

[26] This is not to say that a detainee is always entitled to make one or a series of calls to friends or relatives. The determination must be made on a case by case basis. No doubt there will be rare cases where a call to a friend or relative in private could jeopardize an ongoing investigation. For example, if the detainee has accomplices who had not been arrested, or if persons or property could be placed in jeopardy by permitting a call to someone other than a lawyer, a delay might be justified. That is not the case here. [References removed.]

[152] In R. v. Underhill, 1992 CanLii 7709 (ON S.C.), Carter J said:

What then is encompassed by the words "in the process of exercising his or her s. 10(b) rights to retain and instruct counsel without delay"?

In R. v. McNeilly, the non-lawyer contacted by the detainee was a private organization that provided legal advice for truckers.

In R. v. Oester, the detainee had declined to call an "attorney" but asked if he might call a friend or his boss, and in fact called his boss and asked him if he should comply with the police request to "blow". The police constable was present throughout the entire telephone conversation.

In determining whether the detainee's rights under s. 10(b) of the Charter had been breached, Fraser J. of the Alberta Court of Queens Bench said:

The Courts have been prepared to accept that in exercising the right to retain and instruct counsel, an accused may need to use a third party intermediary. The Courts have also demonstrated a willingness to extend the right to privacy to communications with such third parties for the purpose of retaining and instructing legal counsel. But it does not follow that discussions between an accused and another person, for other purposes, should enjoy the same status, with a concomitant right to privacy, as those involving the exercise by an accused of his rights under s. 10(b).

In R. v. Wiebe, Low Co. Ct. J. of the B.C. County Court, held that if an accused sought to contact some person other than a lawyer for that purpose, he should make it clear to the constable that he wished to do so.

It would seem to me therefore that the right to privacy would attach to a call made by a detainee to a non-lawyer if the purpose of the call is to assist the detainee to retain and instruct counsel, but that there is no right of privacy attaching to such call in the absence of evidence showing such purpose. [Emphasis mine.]

Analysis

Charter Breach

[153] On the specific facts of the situation, I am satisfied that Ms. Luckese should have been granted privacy during her conversation with her husband.

[154] Detective Thomson knew that the reason for the call was for Ms. Luckese to obtain counsel. He knew that Mr. Luckese was being spoken to at another station. He knew that the house was sealed pending the investigation. There was no evidence of a risk to the investigation. There was only one purpose to the call and that purpose was approved of by Detective Thomson; it should have been in private.

[155] That failure to provide the phone call in privacy amounts to a breach of Ms. Luckese’s s. 10 (b) Charter rights.

Section 24(2)

[156] Following the factors set out in R.v.Grant, 2009 SCC 32, (Grant factors), Detective Thomson’s failure to allow Ms. Luckese privacy while calling her husband is a serious breach given that it deals with an accused’s rights to counsel. On the other hand, I do not accept the defence submission that it amounts to an egregious breach based on ignorance of the law. Neither counsel was able to find a case directly on point. While I have not accepted the Crown’s analysis of the various cases referred to, I accept that it is a nuanced point of law and one that the officer may well not have appreciated.

[157] I would not go so far as to suggest that such a breach rises to the gravity required to exclude other evidence as considered in R. v Mian [2011] 2 SCR 689 or R. v. Provo 2015 ONCJ 311 but the breach does suggest that the evidence should be excluded.

[158] The statements made by Ms. Luckese when speaking with her husband could be significant evidence in this case. For the Crown to obtain her statements in breach of her right to speak to counsel would have a serious impact on her rights. That too supports exclusion.

[159] Finally, I find that the exclusion of this evidence, in light of all of the other admissible evidence, would not seriously hamper the Crown’s case on the merits. That favours exclusion of the statements.

[160] Balancing those three factors, the evidence arising from this phone call should be excluded.

4. Statement to Detective Thomson (Walk- Through of the Home)

Evidence of Detective Thomson

[161] At 9:51 p.m., Detective Thomson raises the issue of a consent search of Ms. Luckese’s house along with a video of where the events occurred. He takes her through a consent form along with the usual rights and cautions. He explains what he would be looking for in the home and why.

[162] Ms. Luckese then asks “Then what? Detective Thomson asks “I’m sorry?” and she repeats “And then what?”

[163] In answer to that question he describes the bail process. Ms. Luckese asks “So it’s in my best interests to do this?” To which he responds, “Well I wouldn’t necessarily -, necessarily say it’s in your best interest, okay? But it would provide a very clear picture of your residence.” He then tells her that she can speak with a lawyer at any time if she wishes. She signs the consent form.

[164] She then asks to use the washroom and he arranges for that. Because the DVD recording is about to come to the end of its time duration, Ms. Luckese is then moved to a second room for the recording to continue. At 10:54 p.m., Detective Thomson advises her that the child has been moved to Sick Kids Hospital in Toronto to relieve pressure caused by bleeding in her skull. He asks her again if she is still willing to go to the residence and confirms that the decision is hers and hers alone. She says that she wishes to go and he says once again that if at any time she wishes to speak with a lawyer all she need do is tell him. She confirms that she wishes to go to the home with him. What follows then is a discussion that needs to be set out in detail.

Ms. Luckese: After this, will my family be able to go home?

DetectiveThomson: Um, right now we’re, we’re holding, holding the scene obviously or your, your house and once we’re completed our investigation, um, this should have no impact on though, on your decision though, um, we’ve two options basically that are open to us. One is we can seek judicial approval, um, so by way of a, a search warrant or a general warrant to enter your home with the approval of the justice of the peace. In the case of a search warrant, or a general warrant, which would require a judge’s signature. The general warrant, if the judge agreed with us, would give us permission to go into your home and that would be to take pictures, as-, now it’s up to the judge whether they agree or not to give us that warrant.

Ms. Luckese: Okay.

Detective Thomson: I cannot speak for them, obviously. Um, the other avenue for us is to, ah, with your consent is to go in and take pictures and then also, was while we’re in there, for you, if you wish to show me, as far as, you know, where the child was, kind of do a re-enactment as to where things occurred and stuff like that.

Ms. Luckese: Okay.

Detective Thomson: And, ah, after we either, um, complete this or we go by way of a warrant, um, and I can see no further reason to, um, hold your residence.

Ms. Luckese: Okay.

Detective Thomson: Now that should not have any bearing whatsoever on your decision as far as whether you wish to do this or not. Okay and I don’t want it to have any effect whatsoever.

Ms. Luckese: Okay.

Detective Thomson: ‘Cause whether you grant your consent or not…

Ms. Luckese: Let’s just do this.

Detective Thomson: …has no effect, I, I’m saying-, what I’m saying is whether you grant your consent or not, has no effect on what we would do as far as releasing the, the residence, your-, the residence would be released, um, in due course.

Ms. Luckese: Okay.

Detective Thomson: As quickly as possible.

Ms. Luckese: Let’s just do this.

Detective Thomson: Are you sure?

Ms. Luckese: Yes.

[165] At 10:11 p.m., she confirms that there have been no threats or promises.

[166] At the start of the walk-through, she is calm but she is clearly upset by the end of it. She asks that it comes to an end and it does.

[167] Detective Thomson testified that he wanted a re-enactment at the house but that he also wanted to see if there was any blood or vomit samples to be taken as evidence.

[168] He denied that there was a quid pro quo with respect to the consent release. He was simply telling her the two options available, her consent or a warrant. He denied that he was persistent but, rather, she was cooperative.

Evidence of Ms. Luckese

[169] With respect to the consent to the walk-through, Detective Thomson did not tell her that he was going to ask her to show what had occurred.

[170] He told her that he would unseal the house after the walk-through. She thought that if she did the walk-through, her family would get home sooner. She thought that the search of her house would be faster if done on consent. She thought that the search would happen whether she consented or not and that her consent would speed the process. She thought that it would take time to get a warrant. These perspectives arose only from her own thinking and nothing that Detective Thomson said. Detective Thomson did not say there was a connection between the consent and getting the house open.

[171] Ms. Luckese also thought that if she cooperated with Detective Thomson, he would not oppose her bail. He did not say that but she thought that he might change his mind. Again, these perspectives arose from her thoughts, not from anything that he said to her.

[172] She was emotional at the house because the whole situation was upsetting. She agreed that Detective Thomson stopped when she asked him to stop. She thought that Detective Thomson treated her fairly.

Positions of the Parties

[173] The defence submits that when Detective Thomson decided to pursue the re-enactment, he was obliged to, again, advise her of her right to counsel. Further, he offered a quid pro quo for that consent. That is to say, if she consented to the search and the walk-through, things would go better for her family and at the bail hearing.

[174] In response, the Crown submits that Ms. Luckese’s cooperation was both voluntary and in compliance with the Charter.

Legal Authorities

[175] In R. v. Spencer, 2007 SCC 11, [2007] S.C.J. No. 11, at paras. 12 and 13, Deschamps J., said:

[12] In Oickle, the Court recognized that there are several factors to consider in determining whether there is a reasonable doubt as to the voluntariness of a statement made to a person in authority, including the making of threats or promises, oppression, the operating mind doctrine and police trickery. Threats or promises, oppression and the operating mind doctrine are to be considered together and “should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule”. . . On the other hand, the use of “police . . . trickery” to obtain a confession “is a distinct inquiry . . . [given that] its more specific objective is maintaining the integrity of the criminal justice system” . . .

[13] With respect to promises, which are at issue in the present appeal, this Court has recognized that they “need not be aimed directly at the suspect . . . to have a coercive effect”. . . While Iacobucci J. recognized in Oickle that the existence of a quid pro quo is the “most important consideration” when an inducement is alleged to have been offered by a person in authority, he did not hold it to be an exclusive factor, or one determinative of voluntariness. On the contrary, the test laid down in Oickle is “sensitive to the particularities of the individual ” . . ., and its application “will by necessity be contextual” . . . Furthermore, Oickle does not state that any quid pro quo held out by a person in authority, regardless of its significance, will necessarily render a statement by an accused involuntary. For example, an offer of psychiatric or psychological assistance, although “clearly an inducement, . . . is not as strong as an offer of leniency and regard must be had to the entirety of the circumstances”. . . Inducements “becom[e] improper only when . . . standing alone or in combination with other factors, [they] are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne”. . .[References removed.]

Analysis

Voluntariness

[176] I have set out the conversation between Detective Thomson and Ms. Luckese in detail because it shows that there was no quid pro quo suggested by Detective Thomson. Rather, he was answering Ms. Luckese very apt questions. She wanted to know what occurred after the search. He answered that. She asked if it would be in her best interests to consent to the search. He candidly answered that. She asked if her family would be able to go home. He candidly answered that. There is nothing in his answers that would suggest a quid pro quo for her consent. Indeed, he takes pains to show that that is not a quid pro quo arrangement.

[177] Further, her assessment that it would be quicker with the consent and would occur in any event shows a sensible weighing of her options in choosing to assist.

[178] I am satisfied beyond a reasonable doubt that her cooperation with the walk-through was voluntary.

Charter Breach

[179] Between 9:53 and 11:00 p.m., Detective Thomson repeatedly reminds Ms. Luckese of her opportunity to speak with counsel again. By my count this is the sixth, seventh and eighth time that he advised her of her right to counsel. All of his reminders occur within four hours of his initial review of her rights. All of these reminders are part of the same interview. Although Ms. Luckese’s prejudice changed at the time of her arrest from the start of the interview, it did not change between her arrest and the end of the walk-through. I can find no fault with Detective Thomson’s efforts to bring Ms. Luckese’s Charter rights to her attention and can find no breach.

Section 24(2)

[180] For the reasons set out above, I need not carry out this analysis.

4. Statement to Detective Thomson (Cruiser)

Evidence of Detective Thomson

[181] On the drive back from the house to the station, Detective Thomson asked Ms. Luckese about her education. She answered that she had partially completed an early childhood education course at Seneca College. She left after one year. He asked her if she had ever been told not to shake a child and she said “yes”. He asked her whether she learned that from her course or from her general knowledge and she said “both”. She then volunteered “I know it is wrong” “I just snapped.” “I guess I hit a breaking point”. He wrote these replies down verbatim in his notebook as she said them.

[182] He made no threats, promises or inducements and did not hear any threats, promises or inducements from any other constables.

[183] He asked questions in the car because the questions came to his mind at that time. He realized that he had not yet asked her about her education. He agreed that it would have been better to have asked these questions on video.

Evidence of Ms. Luckese

[184] Ms. Luckese did not deny the evidence of Detective Thomson. She did not testify about the incident at all.

Positions of the Parties

[185] The defence submits that as the statements were not videotaped, they should be excluded. On this record, I should not be satisfied beyond a reasonable doubt that the statement was voluntary. No good explanation was given by the officer as to why it was not videotaped. Although there may have been notes taken, they were only taken of her answers and not of both the questions and the answers.

[186] In response, the Crown submits that a video recording was not readily available when Ms. Luckese answered Detective Thomson’s questions in the police cruiser. In any event, by assessing the officer’s credibility and in light of the fact that he took notes as the statement was made, I should find that his notes are an adequate record of her statement. Further, given that Ms. Luckese did not deny the statement, the record is sufficiently reliable to be admissible.

Legal Authorities

[187] In R. v. Moore-McFarlane (2001), 2001 CanLII 6363 (ON CA), 47 C.R. (5th) 203, 160 C.C.C. (3d) 493 (Ont. C.A.) (Moore-McFarlane), Charron J.A. said:

[64] I agree that there is no absolute rule requiring the recording of statements. It is clear from the analysis in both Hodgson and Oickle that the inquiry into voluntariness is contextual in nature and that all relevant circumstances must be considered. Iacobucci J. says so expressly in Oickle in the following words. . . :

The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over-and under-inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.

[65] However, the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. That onus may be readily satisfied by the use of audio, or better still, video recording. Indeed, it is my view that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect. In such cases, it will be a matter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video tape record has been provided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt.

[66] The sufficiency of the record does not go exclusively to the question of ultimate reliability and weight as contended by the Crown. One of the cases relied upon by the Crown on this point is the decision of this court in R. v. Lapointe, . . . where the [Ontario Court of Appeal] stated as follows. . .:

Questions regarding the accuracy of the recording of an accused person's words by reason of unconscious editing on the part of the police have to do with the authenticity of the statement and do not fall to be decided by the judge on the voir dire. If he does so, as apparently the learned trial judge did in the present case, he is usurping the function of the trier of fact. The 12 bilingual jurors at this trial were eminently capable of resolving the issues of accurate or inaccurate recording of the respondents' words, of unconscious or deliberate inaccuracy, editing or deliberate fabrication. They are issues of authenticity and are not to be confused with issues of admissibility [References omitted.].

Analysis

[188] In my view, Moore-McFarlane makes it clear that the absence of videotaped evidence does not automatically make such evidence inadmissible. I agree with the defence that the statement ought to have been videotaped, particularly since they were on their way back to a police station that would, presumably, have video equipment. However, I find that Detective Thomson’s credibility was not seriously attacked. On this voir dire, I found him to be credible. He had taken notes as the statements were made. Ms. Luckese has not denied making the statements. Ms. Luckese had been cooperative and answered questions up to that point. I find that her statement was given voluntarily. It will be up to the trier of fact to assess Detective Thomson’s credibility and reliability of the notes. For now however, this evidence is admissible.

5. Statement to Constable McNulty

Background

[189] By January 7, 2011, Duy-An had passed away. Accordingly, the decision was made to arrest Ms. Luckese for second-degree murder.

Evidence of Constable McNulty

[190] At 7:50 a.m., on January 7, 2011, Constable McNulty was advised by her sergeant that she was to be involved in the investigation with respect to the child’s death. At 12:25 p.m. she was advised that she would be conducting the interview of Ms. Luckese.

[191] She arrived at Ms. Luckese’s house at 1:19 p.m. along with three other officers. She said that Ms. Luckese came to the door and invited them into the house. The children were sent upstairs. Constable McNulty and another officer went into the kitchen.

[192] At 1:22 p.m., Constable McNulty advised Ms. Luckese that Duy-An had passed away. Ms. Luckese cried. She was then immediately arrested for second-degree murder. Constable McNulty read Ms. Luckese her rights to counsel, cautioned Ms. Luckese about any statements to her and gave Ms. Luckese a secondary caution about any statements that she may have given to others. Constable McNulty read Ms. Luckese’s rights from her notebook. To be sure that Ms. Luckese understood, she had her reiterate those rights back to her. All of this was at 1:22 p.m.

[193] Ms. Luckese needed to go to the washroom and so Constable McNulty went with her. The door was not closed entirely to allow her some privacy. Ms. Luckese collected some of her personal belongings in a grocery bag and they went back downstairs.

[194] By then, Mr. Luckese was present. He was asked if they had a lawyer and he said that calls were being made. He did not say who or when he might have a lawyer. Constable McNulty provided Mr. Luckese with her business card and told him to have a lawyer call her at the homicide bureau. Ms. Luckese was standing with Mr. Luckese when she handed over her business card to him.

[195] Ms. Luckese was allowed to go upstairs to give her sons a hug. She was then cuffed to the front to make it more comfortable for the ride to the station. Constable McNulty allowed Ms. Luckese to pull her hood over her face to give her privacy since there were members of the media on the front lawn and Ms. Luckese had expressed her concern about them. They left the house at 1:34 p.m.

[196] On the way to the station, Ms. Luckese said she was nauseated because she had not been able to eat or sleep. They arrived at the station at 1:50 p.m. and she was taken into the interview room at 1:52 p.m. The interview then commenced.

[197] Ms. Luckese was then given her rights again. Again, Ms. Luckese reiterates her understanding of these rights.

[198] At 1:55 p.m., Ms. Luckese asks to speak to a lawyer and says that she does not have a particular lawyer. She specifically asks to speak to duty counsel and Constable McNulty leaves to arrange for the call. While she waits for Constable McNulty to return, Ms. Luckese is clearly upset and crying. She either has her head in her hands or a blank face. After 12 minutes, when the officer returns with a phone, Ms. Luckese still has her head in her hands. She is red in the face and sniffles.

[199] From 2:23 p.m. to 2:46 p.m., Ms. Luckese speaks with duty counsel and then asks for something to eat.

[200] At 2:48 p.m., she asks to speak to her husband to see about her own lawyer and Constable McNulty reminds her that she gave a card to her husband with a number to call when he found a lawyer.

[201] At 3:50 p.m., food is provided to her as ordered by her.

[202] At 3:52 p.m., Constable McNulty called Mr. Luckese because she had told him to have his lawyer phone and she had still not heard from him or the lawyer. During the phone call, Mr. Luckese said that no lawyer had called him back. She told him that he should keep trying to find Ms. Luckese a lawyer.

[203] At Ms. Luckese’s request, she is taken to the washroom at 4:05 p.m.

[204] At 4:11 p.m., the interview starts in earnest.

[205] Constable McNulty confirmed that the only time constraint for the interview was that Ms. Luckese needed to be in court the next day. Ms. Luckese was arrested at 1:20 p.m., which gave Constable McNulty the whole day to examine her. She did not wait for Ms. Luckese’s lawyer to call back because, as she testified, she had no idea when or if a lawyer would call. She did not, in fact, wait until 4:11; rather, that was how long it took to get food and duty counsel for Ms. Luckese. By then, Ms. Luckese had spoken to duty counsel. Constable McNulty later allowed Ms. Luckese to speak with her own lawyer even though she had already spoken to duty counsel.

[206] Constable McNulty asks if she is satisfied with the advice she received from duty counsel. Ms. Luckese replys “I don’t know”. Although Ms. Luckese said “I don’t know”, she knew that her husband was trying to get her a lawyer. Constable McNulty had also offered her the lawyers’ telephone book.

[207] Constable McNulty asks if there was a name of a particular lawyer that she wishes to speak to and Ms. Luckese says that she does not know any lawyers. Again, Constable McNulty reminds her that her husband is attempting to get a hold of a lawyer and that if that lawyer calls, Ms. Luckese will still have an opportunity to speak with that lawyer.

[208] At 4:12 p.m., Ms. Luckese says that she is nauseous and cold. The fact that Ms. Luckese said that she had nausea was not of concern to Constable McNulty because she said that it was because of her situation and not a health concern. She could do nothing about the situation.

[209] At 4:16 p.m., Ms. Luckese is visibly upset. Even so, Constable McNulty continues questioning her. Constable McNulty inquiries into Ms. Luckese’s former abusive partner. By 4:18 p.m., Ms. Luckese discusses her education but she is barely able to speak.

[210] From 4:29 p.m. through to 4:36 p.m., Constable McNulty continually refers to how Duy-An’s parents must feel with the result that Ms. Luckese is nothing less than distraught.

[211] At 4:36 p.m., Ms. Luckese says that she does not want to speak but she is simply met with a long speech from Constable McNulty that runs for the next four minutes.

[212] At 4:50 p.m., Ms. Luckese is hardly saying anything.

[213] At 5:01 p.m., Ms. Luckese explains that she has not been eating or sleeping since these events occurred. She is slumped in her chair.

[214] At 5:03 p.m., there is a steady monologue from Constable McNulty that gets only whispers in response.

[215] At 5:11 pm., Ms. Luckese provides her 20th refusal to answer her questions and says “I need a lawyer”. Constable McNulty responds to that by saying, “When your husband calls we’ll certainly make that call for you. In the interim, you know what, at any time, did Duy-An fall by herself?”

[216] At 5:27 p.m., Ms. Luckese says, for the 24th time, “I’m not supposed to talk anymore”. In response, Constable McNulty says “You’re talking because you’re a decent human being. You’re talking because you’re so full of remorse for what has happened.” And then Constable McNulty goes on for another monologue for three minutes and starts asking questions again. This despite Ms. Luckese complaints, once again, that she is cold.

[217] At 5:31 p.m., Ms. Luckese makes an exculpatory statement.

[218] At 5:39 p.m., Ms. Luckese says that she may have blacked out.

[219] At 5:41 p.m., Constable McNulty advises that Ms. Luckese’s husband has been able to speak to her lawyer. While Ms. Luckese waits to speak to her lawyer, she appears to gag.

[220] From 5:42 p.m. to 7:36 p.m., (almost two hours) Ms. Luckese speaks with her lawyer, uses the washroom and is left to eat her sandwich.

[221] At 7:36 p.m., Constable McNulty updates her on what is going on with the house and her family. She tells Ms. Luckese that they have completed the search warrant.

[222] At 7:38 p.m., Constable McNulty tells Ms. Luckese of Duy-An’s autopsy. Constable McNulty received that information during one of the breaks from one of the constables who had been at the autopsy. She referred to the autopsy to appeal to Ms. Luckese’s conscience.

[223] When Constable Hackenbrook came back, Ms. Luckese says “I can’t, I don’t wanna talk”. Nevertheless she continues to ask Ms. Luckese questions. Constable McNulty testified that the “strategy is to get her to talk about the incident”.

[224] At 7:43 p.m., Ms. Luckese has her head in her hands again. She is unresponsive between 7:42 p.m. and 8:18 p.m.

[225] Constable McNulty agreed that, at approximately 8:06 p.m., she moved her chair up closer to Ms. Luckese; close enough to touch her face if she wished. She denied, however, that she was trying to intimidate. She was attempting to be reassuring. She agreed that she left the chair there for seven minutes.

[226] By 8:16 p.m., Ms. Luckese has her head on the table, is sighing, sniveling and whimpering.

[227] At 8:20, Constable McNulty takes a 45 minute break. When she returns, Ms. Luckese says that she is cold, does not feel well and is tired. That results in a speech from Constable McNulty that runs for five minutes.

[228] At 9:10, the following exchange occurs:

Constable McNulty: Do you have any questions?

Ms. Luckese: (No response.)

Constable McNulty: Concerns?

Ms. Luckese: (No response.)

Constable McNulty: What is it April?

Ms. Luckese: I’m so scared and I’m cold and I don’t feel good. I’m so cold.

Constable McNulty: You’re so cold?

Ms. Luckese: I’m so tired and so sick.

Constable McNulty: And why, why are you sick?

Ms. Luckese: My stomach.

Constable McNulty: Is it because of the stress of all this? Or is there something else going on?

Ms. Luckese: I don’t know. I don’t know.

Constable McNulty: Do you need anything else from me then? Like, you have a little bit more water, do you need any more water?

[229] By 9:11 p.m., Ms. Luckese is sick and cold. She is rocking and whimpering. She is only given a coat at 9:18 p.m. Even at 9:22 p.m., Constable McNulty tries to get Ms. Luckese to write another note of apology.

[230] Although Ms. Luckese said that she was cold and did not feel well, this did not concern Constable McNulty. She had been advised by Ms. Luckese that she did not feel well because of the situation and because she did not have food or sleep. Further, if she gave Ms. Luckese a coat, that could hurt the audio portion of the recording. She did not find it cold in the interview room. She knew that Ms. Luckese was nauseous and not feeling well. She addressed that issue by providing food. However, she did not provide medication or a trip to the hospital. If there had been a medical problem, she would need to address that. Because her nausea and feelings of cold were stress-related, there was nothing she could do.

[231] She agreed that although Ms. Luckese referred to cold on three different occasions, Constable McNulty does not recall if she did anything about it. The only blankets available in the station would interfere with the audiotape. She did not think to lend Ms. Luckese a sweater.

[232] She made no threats or promises or inducements. She did not hear any threats, promises or inducements from any other constable.

[233] Constable McNulty agreed that Ms. Luckese was under arrest for a half an hour before she entered the interview. Ms. Luckese left the interview room at 10:08 p.m. after eight hours and 16 minutes. There were long breaks when she was left alone without being told what was going on.

[234] She agreed that she tried to get Ms. Luckese to sign a letter of apology, even when Ms. Luckese made it clear that she was not going to speak.

[235] Constable McNulty agreed that every time Ms. Luckese asserted her right to silence, she continued to talk.

[236] In Constable McNulty’s mind, “At the end of the day, a statement as to what happened is the ultimate goal”.

Evidence of Ms. Luckese

[237] Ms. Luckese knew the police were coming that day but she did not know that they were coming to arrest her.

[238] When Constable McNulty told her that the child died, she was devastated. She was very upset throughout the day.

[239] She agreed that she received her rights to counsel and that she was cautioned. However, she did not recall the conversation between her husband and Constable McNulty, about having a lawyer call Constable McNulty.

[240] Others were working on getting her a lawyer. The search for a lawyer started after her release on January 6. Two days later, no lawyer had called back. She made no calls on January 7 but others were doing something on her behalf.

[241] She chose to talk to duty counsel during her interview with Constable McNulty at the station. She was allowed to call her lawyer during this occasion. She knew that she needed a lawyer during her interview. She understood her advice from duty counsel and she understood that she did not have to speak to the police. She understood that that the interview was recorded and could be used against her.

[242] Although she spoke with duty counsel, she felt that if she had her own lawyer he or she would have more of her interest in mind and would know more about what was going on. She did not want to proceed without her lawyer but did so anyway.

[243] She found Constable McNulty’s remarks to her upsetting, hurtful and made her “feel like garbage”.

[244] During the interview, she was sick, upset, freezing and uncomfortable.

[245] When Constable McNulty moved her chair forward towards her, she was uncomfortable and intimidated; Constable McNulty was in her personal space. When she told Constable McNulty that she wanted to stop and talk to her lawyer, she felt that she needed a lawyer right away and that duty counsel was not doing anything for her.

[246] She agreed that from 7:36 p.m. to 10:08 p.m., she refused to answer and was capable of asserting a right to silence. She was given food, water, washroom breaks and allowed to speak to her husband. During this time frame, when Constable McNulty moved closer to her, she still did not answer her questions.

Positions of the Parties

[247] With respect to voluntariness, the defence submits that the interview was inhumane and amounted to a violation of Ms. Luckese that the court should not condone. Given Constable McNulty’s extreme persistence and repetition of tactics, I should have a reasonable doubt as to voluntariness of the statement. Further, Constable McNulty simply disregarded Ms. Luckese’s assertion of her right to silence. Lastly, the defence submits that there was an atmosphere of oppression in the interview room. Although Ms. Luckese complained about being nauseous, hungry and cold, Constable McNulty trivialized those issues by doing nothing more about them.

[248] The defence submits that Constable McNulty should have held off questioning until Ms. Luckese’s lawyer called. Her lawyer called approximately one and a half hours after Constable McNulty began questioning. It is submitted that once Ms. Luckese invoked her right to her counsel of choice and was reasonably diligent in attempting to contact counsel, the police should have held off questioning for a reasonable amount of time to facilitate that effort.

[249] The defence asserts that there was no urgency to begin the interview, which was made obvious by the fact that Constable McNulty did not begin the interview for over two hours after arriving at the station with Ms. Luckese. Following a section 24(2) analysis, this statement should be excluded.

[250] Finally, the defence submits that the manner in which Mr. Luckese was examined by a different officer and the fact that yet another officer without the consent of either parent examined their child, the statement should be excluded.

[251] In response, the Crown points out that Constable McNulty allowed Ms. Luckese to have water, food, washroom breaks and an opportunity to speak with two different counsel. She was provided with her rights at the outset and her jeopardy never changed throughout the interview. The Crown submits that Constable McNulty’s tactics were legitimate and approved by other court decisions. Constable McNulty was entitled to continue asking questions despite Ms. Luckese’s expressed wish to not answer them. Ms. Luckese’s free will was not overborne, which was demonstrated by the fact that she did not answer many of the questions. Although it would have been better to provide Ms. Luckese with something warm, Constable McNulty’s failure to provide her with such did not overbear her will. In considering the facts in Oickle, the circumstances here were not such as to raise a reasonable doubt as to the voluntariness of the statements.

Legal Authorities

[252] As set out above, in Oickle, at para. 33, Iacobucci J. referred to R. v. Precourt (1976), 1976 CanLII 692 (ON CA), 18 O.R. (2d) 714, 39 C.C.C. (2d) 311 (Ont. C.A.) to confirm that, “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”. . . .

[253] In R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 33, Charron J., wrote the following about the continuing of an interview in spite of an interviewee’s wishes to remain silent:

[33] Under both common law and Charter rules, police persistence in continuing the interview, despite repeated assertions by the detainee that he wishes to remain silent, may well raise a strong argument that any subsequently obtained statement was not the product of a free will to speak to the authorities. As we shall see, the trial judge in this case was very much alive to the risk that the statement may be involuntary when a police officer engages in such conduct.

Analysis

Voluntariness

[254] Given all of the circumstances of this interview, I have a reasonable doubt about the voluntariness of this statement.

[255] The interview starts at 1:52 p.m. and ends at 9:23 p.m.. Although there are breaks for Ms. Luckese’s benefit, she is often left sitting alone in the room with no idea of when Constable McNulty will return.

[256] Despite Ms. Luckese’s repeated wish to not answer questions, Constable McNulty simply ignores them, at least 39 times by my count,. By 5:16 p.m., Ms. Luckese is answering questions because really she has no other choice.

[257] Throughout the interview Ms. Luckese is very emotional, as one would expect from being told that a child under her care has died. Despite that, Constable McNulty refers to the child’s autopsy and details the anguish of Duy An’s parents to inflame Ms. Luckese’s discomfort.

[258] Although in evidence Constable McNulty did not recollect being cold in the interview, on the recording she confirms that it is cold. Constable McNulty is wearing two layers; Ms. Luckese is wearing a T shirt. I am satisfied that the room was cold and that was intended to further discomfort Ms. Luckese.

[259] Ms. Luckese describes being ill, tired and hungry. She had been that way for three days. Nothing is done for her except to leave her alone in the interview room with her drink and a sandwich. Even when Ms. Luckese expressly says that she does not know why she is sick, Constable McNulty only offers a glass of water and carries on with her questions.

[260] It is difficult to describe the appearance of Ms. Luckese throughout the interview. She is often sobbing, sighing, rocking, whimpering and sitting with her head in hands or head on the desk. And the questioning carries on despite that because, as far as Constable McNulty is concerned, at the end of the day, a statement as to what happened is the ultimate goal.

[261] In those circumstances, I have a reasonable doubt that anything said by Ms. Luckese during this interview was voluntary.

Charter Breach

[262] Since I am not satisfied beyond a reasonable doubt that Ms. Luckese’s statements were voluntary, I need not deal with the arguments related to any Charter breach.

6. Ms. Luckese’s Call to Her Husband

[263] At 9:21 p.m., Constable McNulty told Ms. Luckese that her husband wished to speak to her. Constable McNulty left the room but the conversation with her husband was recorded.

[264] Constable McNulty testified that she let Ms. Luckese call her husband because he had asked to speak with her. Constable McNulty wanted to assure her that everything was okay at home to give her peace of mind.

Positions of the Parties

[265] Counsel have appeared to rely upon the submissions that they made with respect to Ms. Luckese’s call to her husband during the Detective Thomson interview.

Analysis

[266] This call was not made for the purposes of speaking with counsel and cannot be excluded on that basis. However, given the circumstances as set out above, I am not satisfied beyond a reasonable doubt that this conversation was recorded voluntarily. Ms. Luckese’s state at this point in the interview is such that I have a reasonable doubt that any of her actions or statements was voluntary. The statement has little probative value and, in view of the conduct of Constable McNulty, allowing it into evidence would have a prejudicial effect on Ms. Luckese. As such, the statement is excluded.

Lemon J.

Released: March 14, 2016