Court File and Parties

OSHAWA COURT FILE NO.: 12350/10 DATE: 20160929 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty the Queen – and – Jason Rodgerson

Counsel: Michael Newell and David Parke, for the Crown Christopher Hicks and Josh Tuttle, for Mr. Rodgerson

HEARD: September 12, 13, 14, 19, 20 and 22, 2016

RULING ON THE ADMISSIBILITY OF STATEMENTS

Bird J.:

Introduction

[1] Jason Rodgerson is charged with second degree murder in the death of 21 year old Amber Young who was killed in the early morning hours of October 27, 2008. It is the Crown’s theory that Ms. Young was suffocated during the course of a violent altercation with Mr. Rodgerson. Mr. Rodgerson is expected to admit having caused Ms. Young’s death, but will say he acted in self-defence. When he was arrested, he was found to have four stab wounds and multiple long scratches on his back. If his killing of Ms. Young is found to be unlawful, he will submit that the Crown cannot prove the requisite intent for murder.

[2] The facts leading up to Ms. Young’s death are well established and not in dispute. She met Mr. Rodgerson for the first time on the evening of Sunday October 26, 2008 in the Down Omer Bar & Grill in Oshawa. According to witnesses, Mr. Rodgerson and Ms. Young were getting along well and left the bar together at approximately 11:30 p.m. They went directly to Mr. Rodgerson’s home which was just down the street. Both had been drinking alcohol.

[3] Mr. Rodgerson’s friend, Stephen Roberts, stopped by the home just before midnight and saw Mr. Rodgerson and Ms. Young in the home. Mr. Roberts described them both as being “whacked out”. He believed that they were both under the influence of alcohol and drugs, possibly ecstasy. According to Mr. Roberts, the house was “trashed”. There was broken glass on the floor and Mr. Rodgerson said that he was “off” and had lost it. Ms. Young did not appear to be injured at this time. She and Mr. Rodgerson seemed to be getting along. Mr. Roberts did not stay at the home long because Mr. Rodgerson gestured to him that he was hoping to engage in sexual activity with Ms. Young.

[4] Mr. Roberts returned to the home the following day at about noon. He did not see Ms. Young at this time. The house was in the same condition as it had been 12 hours earlier, but Mr. Rodgerson told him not to go upstairs. Mr. Rodgerson also told Mr. Roberts that he had been stabbed and showed him injuries on his back. However, he did not provide any further details about how he got stabbed. Mr. Rodgerson said that he got into some trouble and needed to burn something. He also asked Mr. Roberts to get him a shovel. Mr. Rodgerson appeared to be upset.

[5] Mr. Roberts did bring a shovel to the home as requested but left immediately after dropping it off. Forensic officers ultimately located Ms. Young’s body in a freshly dug grave in the backyard of the home. She was naked and her jewellery had been removed.

[6] In order to rebut self-defence and to prove that Mr. Rodgerson intended to murder Ms. Young, the Crown will rely primarily on the nature and extent of her injuries. However, there is other evidence on this point, including bloodstain pattern analysis and post-offence conduct. The Crown wishes to lead statements made by Mr. Rodgerson upon and after his arrest which it alleges contain multiple lies, as post-offence conduct to rebut self-defence.

[7] The defence does not take issue with the fact that the statements are relevant as post-offence conduct on the issue of self-defence and whether the killing was unlawful. However, Mr. Rodgerson takes the position that the Crown cannot prove the voluntariness of the statements. Further, he alleges that they were obtained in contravention of Sections 8, 9, 10(a) and 10(b) of the Charter and seeks to have them excluded pursuant to Section 24(2).

Factual Background of the Statements

[8] On the evening of Monday October 27, 2008, Ms. Young’s mother called the police to report that she was missing. Officers attended her home and completed an occurrence report. The deceased’s mother said that her daughter was in frequent contact every day with her family and friends by phone and no one had heard from her in almost 24 hours. In addition, Ms. Young had missed an anger management counselling session on Monday evening.

[9] Ms. Young had made arrangements with her boyfriend via text message to spend the night of Sunday October 26 at his residence. At 11:30 p.m. she sent him a text message saying that she was on her way to his house right now. She never arrived. Her boyfriend made repeated attempts to contact her by calling and texting her cellular phone but did not receive any response.

[10] Officers went to the Down Omer Bar & Grill and spoke with a bartender who confirmed that Ms. Young had been there on Sunday night. She was intoxicated and left the bar with a male who was unknown to the bartender but is admitted to be Mr. Rodgerson. The bartender provided a description of the male to the police and told them she had heard him say that he lived about five houses away from the bar.

[11] Ms. Young’s cellular phone company was contacted by the officers investigating the missing person’s report, and they advised that she had last used her phone to make a call at 9:33 p.m. on October 26.

[12] On the afternoon of Tuesday October 28, Mr. Roberts showed up at 17 Division in Oshawa and asked to speak with a police officer. He provided police with some information that was not formally recorded. He also gave a statement to Constable Kennedy of the Drug Enforcement Unit that evening. Mr. Roberts said that he and Mr. Rodgerson had a marijuana grow operation in the basement of the home at 307 Bloor Street East. He told the police about seeing Ms. Young and Mr. Rodgerson in the house around midnight on Sunday night. He identified a photograph of her during his interview.

[13] Mr. Roberts also told the police about his return to the home at about noon the following day. He described his observations of Mr. Rodgerson and the request for him to get a shovel. When he initially spoke with officers shortly after his arrival at 17 Division, Mr. Roberts said he felt that Mr. Rodgerson may have killed someone.

[14] Based solely on the information provided by Mr. Roberts, a decision was made to apply for a Controlled Drugs and Substances Act (CDSA) search warrant. The information to obtain this warrant was written by Constable Kennedy. The search warrant was signed by a Justice of the Peace in the early morning hours of Wednesday October 29.

[15] Detectives Henderson and Dingwall of the homicide squad were called in and asked to attend 17 Division on the evening of Tuesday October 28. They denied that they were taking over the investigation at that point. In their view, the matter could involve a possible homicide so they were there to assist the drug enforcement officers.

[16] The homicide officers learned shortly after their arrival at the station that Constable Kennedy’s interview with Mr. Roberts had not been properly recorded. As a result, Detective Dingwall conducted a second interview with him at approximately 2:30 a.m. on Wednesday October 29. This statement was video and audio recorded. At the outset of the interview, Detective Dingwall said that he was a member of the homicide squad. He advised Mr. Roberts that if Ms. Young was dead or injured and he was involved in any way, he could be charged with murder or accessory after the fact to murder. No other criminal offences were referred to.

[17] In this statement, Mr. Roberts repeated the information he had already provided to Constable Kennedy. Mr. Roberts also said that he believed that something “crazy” had happened in the house in relation to Ms. Young. He said he had a feeling that she had been hurt. During his interview, Mr. Roberts presented as lacking in focus and detail. However, the police clearly felt that he was credible and reliable because the grounds for the CDSA search warrant came entirely from their interview of him.

[18] Members of the Durham Regional Police Service (DRPS) Drug Enforcement Unit executed the warrant on Mr. Rodgerson’s home shortly after 5:00 a.m. on Wednesday October 29. As they entered through the back door, Mr. Rodgerson ran out the front door. He was pursued by Constables French and Thompson. As he was going down the steps of the front porch, Mr. Rodgerson was grabbed and taken to the ground.

[19] Constable French testified that both he and Constable Thompson struggled with Mr. Rodgerson to gain control of him. Mr. Rodgerson was resisting arrest by pulling his arms under his body. Constable French said that either as he was in the process of handcuffing Mr. Rodgerson or immediately thereafter, Mr. Rodgerson spontaneously said “I didn’t do it, it wasn’t me”. He blurted this out before Constable French had the opportunity to tell him that he was under arrest, caution him and read him his rights to counsel. Constable French did not know exactly where Constable Thompson was when this utterance was made.

[20] Constable Thompson’s account differed from that of Constable French. He testified that by the time he oriented himself after landing on the ground at the bottom of the steps, Constable French already had Mr. Rodgerson under control. He denied having any physical contact with Mr. Rodgerson or assisting in his arrest. Constable Thompson did not hear either Constable French or Mr. Rodgerson say anything.

[21] After the spontaneous utterance was made, Constable French placed Mr. Rodgerson under arrest for two drug offences. According to the officer, Mr. Rodgerson lifted his head from the ground to look up at him and seemed shocked. Constable French advised Mr. Rodgerson of his right to counsel and cautioned him. Mr. Rodgerson said that he wanted to speak with duty counsel. He was then transported to 17 Division by uniformed officers.

[22] At the police station, Mr. Rodgerson was paraded in the usual course and the injuries to his back were documented. Just after 6:00 a.m., Detective Henderson spoke to Staff Sergeant Elliott, who was in charge of the cells, and asked that Mr. Rodgerson be isolated. At 6:21 a.m., Mr. Rodgerson spoke with duty counsel for seven minutes. He spoke to the bail court duty counsel for an additional six minutes just before 9:00 a.m.

[23] During the execution of the CDSA warrant, officers detected an overpowering smell of bleach in the home. There were rubber gloves and a mop in the kitchen. It was obvious that the home had recently been thoroughly cleaned. In addition, carpet had been ripped out in one of the bedrooms. In the backyard of the home, officers saw a mattress with what appeared to be a large bloodstain on it. Beside the mattress was a bottle of bleach and a garbage bag. There was a large area of freshly dug earth covered by a tarp near the garage of the home. Two patio stones were leaning against the wall near the excavation site and a small shovel was seen nearby.

[24] Upon learning of these observations, Detective Henderson decided to arrange for a Criminal Code search warrant to be obtained so that officers could conduct a further search of the home and backyard for evidence in relation to Ms. Young. Detective Henderson did not believe he had reasonable and probable grounds to arrest Mr. Rodgerson for murder at this time. He still considered it to be a possible homicide investigation. He did not know where Ms. Young was or what condition she was in. In Detective Henderson’s mind, he could have been dealing with anything from an assault to murder.

[25] At 10:20 a.m., Staff Sergeant Elliott removed Mr. Rodgerson from the cells and turned custody of him over to Detective Henderson. Mr. Rodgerson was taken directly to an interview room that was equipped with audio and video recorders. I am satisfied that at no time did any officer have any substantive conversation with Mr. Rodgerson that was not recorded on video.

[26] Detective Henderson began the interview by ensuring that Mr. Rodgerson knew why he was at the police station and understood his rights to counsel. He quickly told Mr. Rodgerson that he wanted to speak with him about what had happened in the home. Specifically, Detective Henderson made reference to the extensive cleaning efforts that had obviously been undertaken. He told Mr. Rodgerson that his jeopardy had increased because he believed that something had happened inside the home. Detective Henderson said it could be a simple assault, a serious assault, an attempted murder or a murder.

[27] When asked whether he understood what was being investigated, Mr. Rodgerson responded by saying “an assault or something seriouser”. Once again, Detective Henderson told him that it was something serious, potentially even murder. He then asked Mr. Rodgerson if he had his own lawyer or wanted to speak with duty counsel again. Mr. Rodgerson did not have a lawyer so Detective Henderson told him that he would contact duty counsel again. Mr. Rodgerson responded by saying “about”. Detective Henderson reiterated that his jeopardy had increased because the police had moved from investigating drug offences to “murder all the way down to a simple assault”. Detective Henderson further explained that the current investigation involved a “much more serious offence” than drugs and involved the potential for a lengthy period of time in jail.

[28] Mr. Rodgerson was returned to the cells so that duty counsel could be contacted. Detective Henderson spoke with duty counsel prior to putting the call through to the cells. He told the lawyer that they were investigating a missing person and believed that something had happened inside Mr. Rodgerson’s home that could range from simple assault to homicide. Detective Henderson explained that Mr. Rodgerson had been arrested on drug charges after a CDSA warrant was executed on his home, but that the investigation was no longer focused on drugs. He summarized the observations of the officers who executed the warrant including the cleaning efforts, the bloodstained mattress and the freshly dug earth.

[29] After Detective Henderson provided this information to duty counsel, the call was put through to Mr. Rodgerson in the cells. He was given as much time as he wished to speak with counsel privately. Mr. Rodgerson spoke with duty counsel for eight minutes on this occasion. At no time did he ever express any dissatisfaction with the advice he received from duty counsel to Staff Sergeant Elliott. Nor did he ask to call anyone else.

[30] Mr. Rodgerson was returned to the interview room at 12:20 p.m., and was interviewed by Detective Henderson until 1:38 p.m. During this portion of the interview, Detective Henderson made it abundantly clear that the police believed Mr. Rodgerson had harmed Ms. Young. Detective Henderson outlined the majority of the evidence the police knew about, and told Mr. Rodgerson that Mr. Roberts had given them a statement. Mr. Rodgerson did not make any admissions during this portion of the statement. In fact, at one point he appears to suggest that Mr. Roberts may have been involved in whatever happened to Ms. Young. When shown a photograph of Ms. Young, he denied knowing her.

[31] Less than two minutes after Detective Henderson finished speaking with Mr. Rodgerson, Detective Dingwall went in to continue the interview. He asked Mr. Rodgerson if he wanted something to eat and brought him a burger and fries at 2:05 p.m. Detective Dingwall took a more casual approach in speaking with Mr. Rodgerson and engaged him in conversation about the East Coast.

[32] Detective Dingwall then turned to the investigation and told Mr. Rodgerson that forensic officers would be going to the home and would find even the smallest pieces of evidence. He said they would do DNA testing on the bloodstain on the mattress and would check to see what had been buried in the backyard. Detective Dingwall told Mr. Rodgerson that he would be in a “world of trouble” if it was Ms. Young who had been buried. Several times during his conversation with Detective Dingwall, Mr. Rodgerson said “I’m not a killer”. When asked if the police were going to find Ms. Young’s body in the backyard, Mr. Rodgerson said “no, and I didn’t kill anybody”. Detective Dingwall ended his interview with Mr. Rodgerson after he said four times that he needed to speak with counsel again. This portion of the statement ended at 3:47 p.m.

[33] Mr. Rodgerson was left alone in the interview room with the video camera running and was not given another opportunity to speak with counsel. Approximately 30 minutes after Detective Dingwall left, Detective Hoard entered to continue the interview with Mr. Rodgerson. When he walked into the room, Mr. Rodgerson asked him if he was “the lawyer”. About seven minutes into this portion of the statement, Mr. Rodgerson told Detective Hoard that he was not a killer. He said this repeatedly throughout the rest of the interview, which consisted primarily of Detective Hoard imploring Mr. Rodgerson to tell the truth. The interview was interrupted at 5:45 p.m., when someone knocked on the door and asked to speak with Detective Hoard. It was at this point that Detective Hoard learned that Ms. Young’s body had been found in the grave in Mr. Rodgerson’s backyard.

[34] Although the officer continued to speak with Mr. Rodgerson after getting this information, the Crown does not seek to tender that portion of the statement. The Crown takes the position that the discovery of Ms. Young’s body was a significant event that changed Mr. Rodgerson’s jeopardy, such that he should have been given another opportunity to speak with counsel at that point. Mr. Rodgerson was not formally arrested for the murder of Amber Young until 6:50 p.m.

Issues

[35] Has the Crown proven that Mr. Rodgerson’s spontaneous utterance was voluntary? If so, is its probative value outweighed by its prejudicial effect?

[36] Did the execution of the CDSA warrant contravene Section 8 of the Charter?

[37] Were the videotaped statements obtained in violation of Sections 10(a) and 10(b) of the Charter?

[38] Has the Crown proven that Mr. Rodgerson’s videotaped statements were voluntary?

[39] Were Mr. Rodgerson’s Section 9 rights violated because he was not brought before a Justice of the Peace within 24 hours of his arrest on the drug charges?

The Spontaneous Utterance

[40] Mr. Rodgerson takes the position that the Crown cannot prove the voluntariness of the utterance he allegedly made to Constable French because of the frailties in the evidence on this issue. Specifically, he asserts that inconsistencies in the testimony of Constables French and Thompson render the record so unreliable that the statement ought not to be admitted. In contrast, the Crown submits that it is for the jury to determine whether a statement was, in fact made, provided there is some evidence on this point.

[41] In R. v. Park, [1981] S.C.J. No. 63, the court held that provided a statement is voluntary, determining whether it was actually made is a matter for the trier of fact. There must be some evidence that a statement was made. It is then for the jury to decide whether to accept the evidence of the officer about the contents of the statement, and to decide how much weight to place on it.

[42] Similarly, in R. v. Clarke, 2012 ONSC 1485, [2012] O.J. No. 1120 (S.C.J.), Code J. held that an oral statement recorded in a police memobook was admissible. In doing so, he distinguished between issues that affected the voluntariness of the statement and those that related to its accuracy and authenticity. It was for the jury to determine whether the statement was actually made (at paragraph 34).

[43] In R. v. Moore-McFarlane, [2001] O.J. No. 4646 (C.A.), the court made strong comments about the necessity for the police to provide an accurate recording of a statement in order for it to be proven to be voluntary. However, the court affirmed the admissibility of a spontaneous utterance made by the accused on the street immediately upon arrest (at paragraph 11).

[44] There is a difference in the evidence of Constables French and Thompson about where Constable Thompson was at the moment the utterance was made. Constable Thompson testified that he was not physically involved in restraining Mr. Rodgerson. He was not in a position to hear anything that was said by either Mr. Rodgerson or Constable French. In contrast, Constable French testified that Constable Thompson actively assisted in the arrest of Mr. Rodgerson by taking control over his lower body. Constable French did not know exactly where Constable Thompson was at the moment the handcuffs were being applied. However, he testified that Constable Thompson did not leave the area until Mr. Rodgerson was under control.

[45] The jury will be well positioned to assess the testimony of both officers and decide whether the fact that Constable Thompson did not hear Mr. Rodgerson say anything means that no utterance was made. In his videotaped statement to Detective Henderson, Mr. Rodgerson admitted making a spontaneous utterance when he was on the ground in front of his home. According to him, he said “don’t shoot, don’t shoot”. While he disagreed with Constable French about what he said, Mr. Rodgerson acknowledged making a brief statement. This reduces the significance of the fact that Constable Thompson did not hear Mr. Rodgerson say anything.

[46] There is nothing about the circumstances that gives rise to a concern about the voluntariness of anything that was said by Mr. Rodgerson. Any utterance he made was spontaneous. It was not the result of any threats or inducements. Nor was it made in an atmosphere of oppression. None of the classic voluntariness concerns exist in this case. I am satisfied beyond a reasonable doubt that anything said by Mr. Rodgerson was spontaneous and fully voluntary. There is sufficient evidence from Constable French that a statement was made, to permit it to go to the jury for them to determine how much weight to give it. The exact words uttered by Mr. Rodgerson are a matter of fact to be determined by the jury.

[47] The second issue Mr. Rodgerson raises with respect to the spontaneous utterance is whether its probative value is exceeded by its prejudicial effect. He submits that the statement is ambiguous and was likely a reference to the illegal marijuana grow operation in the home. Again, this is a factual matter to be assessed by the jury. They can consider any competing interpretations and determine how much weight, if any, to place on the statement.

[48] The same submissions the defence makes in relation to the utterance could apply to Mr. Rodgerson’s flight from his home. He could argue that he ran from the house because he did not want to be connected to the marijuana grow operation in the basement. However, the Court of Appeal in this case found that evidence of Mr. Rodgerson’s flight from his home was “clearly relevant” to issues at trial, including a determination of whether he killed Ms. Young in self-defence (R. v. Rodgerson, 2014 ONCA 366, [2014] O.J. No. 2232 at paragraph 53). Further, the court stated that post-offence conduct does not need to support only one inference to be admissible. If the inference urged by the Crown is reasonably available, the evidence ought to be left with the jury to assess the competing inferences (at paragraph 51). As a result, Mr. Rodgerson’s utterance to Constable French upon arrest is admissible as post-offence conduct to be considered by the jury, along with all of the other evidence.

Section 8

[49] Mr. Rodgerson claims that in executing the CDSA warrant, the officers violated his Section 8 rights in two ways. First, they failed to obtain a separate Feeney warrant, even though they knew that he was in the home and they intended to arrest him. Second, they used a dynamic entry rather than knocking and announcing their presence.

[50] In R. v. Feeney, [1997] S.C.J. No. 49, the court found that entry into a dwelling house to affect an arrest, in the absence of judicial authorization, violated Section 8 of the Charter. A similar conclusion was reached in R. v. Adams, [2001] O.J. No. 3240 (C.A.). However, in my view neither of those cases assists Mr. Rodgerson because they are distinguishable on their facts. The police did not have any lawful basis for being in the homes in those cases.

[51] In contrast, in this case the police did have prior judicial authorization in the form of a CDSA warrant to enter Mr. Rodgerson’s home. Constable Kennedy’s Information to Obtain (ITO) in support of the warrant disclosed his belief that Mr. Rodgerson would be found in the house. In R. v. Lucas, 2009 ONSC 5333, [2009] O.J. No. 5333 (S.C.J.), Nordheimer J. specifically considered whether a Feeney warrant was necessary when the police entered the accused’s home pursuant to a search warrant and arrested him inside. He found that requiring the police to obtain a companion authorization to enter the same home they had a valid search warrant for would be redundant (at paragraph 28). The appellants did not challenge this aspect of Nordheimer J.’s ruling on appeal (R. v. Lucas, 2014 ONCA 561, [2014] O.J. No. 3471 (C.A.) at paragraph 252, leave to appeal dismissed [2014] S.C.C.A. No. 460).

[52] The same conclusion was reached by Pardu J. (as she then was) in R. v. Pierre, 2011 ONSC 3388 (S.C.J.) at paragraph 46 and the Newfoundland Court of Appeal in R. v. Al-Amiri, 2015 NLCA 49 at paragraph 55. As a result, Mr. Rodgerson’s Section 8 rights were not violated by the failure of the police to obtain a separate Feeney warrant in this case. It was unnecessary to do so in the face of a valid CDSA warrant authorizing them to enter Mr. Rodgerson’s home.

[53] The police entered Mr. Rodgerson’s home in the early morning hours of October 29 without knocking, announcing their presence and advising him of the fact that they had a search warrant. In his ITO, Constable Kennedy requested authorization for a dynamic entry and set out his grounds for believing one was necessary. Specifically, he relied on the fact that Mr. Rodgerson was potentially involved in inflicting violence on a missing person. The Justice of the Peace did not make any notation on the search warrant with respect to the manner of entry.

[54] In Al-Amiri, supra, the court held that the law does not require the police to obtain prior judicial authorization for a dynamic entry. In fact, the police are not even obligated to disclose their intention to enter the home in this manner in advance (at paragraph 54). Code J. came to a similar conclusion in R. v. Thompson, 2010 ONSC 2862, [2010] O.J. No. 2070 (S.C.J.) at paragraph 59.

[55] The presumption remains that the police will knock and announce their presence prior to entering a home to execute a search warrant. If they depart from this procedure, the onus is on the police to explain why it was necessary to do so. The Crown must provide an evidentiary foundation to support a finding that the police had reasonable grounds to be concerned about the possibility of harm to themselves or occupants of the home, or about the destruction of evidence (R. v. Cornell, 2010 SCC 31, [2010] S.C.J. No. 31 at paragraph 20).

[56] In Lucas, supra, Nordheimer J. found that the police were justified in using a dynamic entry in relation to an accused who had no known connection to firearms. The fact that the accused was involved in the drug trade, which was a notoriously dangerous business, provided a reasonable basis to believe that he may have had access to weapons. In addition, items such as debt lists and small quantities of drugs could be quickly destroyed (at paragraph 19). The court found that while the concerns about this accused were not as strong as in relation to others, the level of proof necessary to justify a dynamic entry is not high (at paragraph 20). The Court of Appeal agreed that there was ample evidence to conclude that exigent circumstances existed to justify the use of a no-knock entry in relation to this accused (Lucas, supra, (C.A.) at paragraphs 262 and 263).

[57] In Thompson, supra, the use of a dynamic entry in that case was not found to violate Section 8 of the Charter, even though the police were searching for a large quantity of marijuana which would be more difficult to destroy quickly.

[58] The fact that the accused was a person of interest in a homicide investigation was one factor that provided a basis for the use of a dynamic entry in R. v. Cox, [2006] O.J. No. 4467 (S.C.J.). Where concerns exist that an occupant of the home may be violent, the police are justified in using a no-knock entry to ensure officer safety.

[59] In this case, the police had reasonable grounds to be concerned about their safety and the destruction of evidence. While a large marijuana grow operation could not be dismantled in minutes, efforts could be made to destroy debt lists and small quantities of prepared product. In addition, money could be hidden.

[60] However, the more significant concern was the potential volatility of the situation inside Mr. Rodgerson’s home. The police knew that he was connected to a missing person, and that there was very good reason to believe that she was the victim of some type of violence that had occurred in the home. Mr. Rodgerson had been stabbed, which provided a basis to believe that a weapon was present. Mr. Roberts described the home as being trashed, which again is consistent with violent, out of control behaviour. Mr. Roberts also told the police that Mr. Rodgerson was under the influence of alcohol and/or drugs on both Sunday and Monday and was acting in a bizarre manner. Further, on Sunday night Mr. Rodgerson said that he was “off” and had lost it. All of these factors provided a strong basis to believe that Mr. Rodgerson was capable of violent and erratic behaviour. As a result, it was reasonable for the police to use a dynamic entry to ensure their safety. Constable Kennedy disclosed their intention to do so in the ITO even though he was not legally required to do so. As soon as the police entered the home they announced their presence by yelling “police, search warrant”. Their conduct in all of the circumstances was justified. Therefore, there was no violation of Mr. Rodgerson’s Section 8 rights as a result of the manner in which the CDSA search warrant was executed.

Sections 10(a) and 10(b)

[61] In alleging that his Section 10(a) and 10(b) rights were violated, Mr. Rodgerson submits that he was not properly advised of the full extent of his jeopardy prior to beginning his videotaped statement at 12:20 p.m. Specifically, he asserts that Detective Henderson had reasonable and probable grounds to arrest him for murder and should have done so prior to interrogating him. The “sliding scale” of potential jeopardy referred to by Detective Henderson was so vague that it did not adequately inform him about the real reason for his detention. As a result, he was unable to meaningfully exercise his right to counsel.

[62] The Crown submits that while the police had good reason to suspect that Ms. Young was dead, they did not have enough evidence to give them reasonable grounds to arrest Mr. Rodgerson for murder until her body was found. Prior to interviewing him, Detective Henderson fairly advised him about the nature of the investigation and the potential range of offences he could be charged with, including murder. Further, the Crown relies on Mr. Rodgerson’s subjective knowledge of what had occurred in the home as providing him with a full understanding of the nature of his jeopardy.

[63] Section 10(a) of the Charter requires that a person who is arrested or detained be informed promptly of the reasons therefor.

[64] The first issue to be determined is the extent of the information the police had prior to commencing their videotaped interview of Mr. Rodgerson. Obviously, the police can only inform a detainee in accordance with their own knowledge. The reason for a person’s detention is based on the information available to the police at that point in time.

[65] Prior to the execution of the search warrant the police had the following information: (a) Amber Young had been missing for 2 ½ days. It was completely out of character for her to not be in touch with her family and friends. Her cellular phone was last used to make a call at 9:33 p.m. on Sunday October 26. (b) Ms. Young had left the Down Omer Bar & Grill with Mr. Rodgerson on October 26, just before midnight. (c) Ms. Young and Mr. Rodgerson were together in his home at about midnight on October 26. The house had been “trashed” but neither party appeared to be injured. Mr. Roberts believed they were both under the influence of alcohol and/or drugs. (d) The police investigation had not turned up anyone who had seen or spoken to Ms. Young after Mr. Roberts left her in Mr. Rodgerson’s home shortly after midnight. (e) When Mr. Roberts returned at noon on Monday October 26, he did not see Ms. Young in the house. The house was in the same condition it had been 12 hours earlier, but Mr. Rodgerson told him not to go upstairs. (f) Mr. Rodgerson told him that he had been stabbed and showed him a fresh injury to his back. (g) Mr. Rodgerson appeared upset and was talking about digging something up and burning something. (h) Mr. Rodgerson asked Mr. Roberts to bring him a shovel. Mr. Roberts retrieved one and left it by the garage.

[66] Both Detectives Dingwall and Henderson testified that based on this information they were suspicious and felt they might be dealing with a possible homicide investigation. Mr. Roberts was not particularly articulate or focused during his videotaped statement. He did not provide a lot of detail about his observations or the statements made by Mr. Rodgerson. There was every reason to believe that he was telling the truth. Mr. Roberts came into the police station of his own volition and confessed to his involvement in the grow operation. He was clearly concerned about what he saw in the home and expressed a belief that Ms. Young had been harmed or possibly killed. Given the uncertainty that existed at this early stage of the investigation and the concerns about Mr. Roberts’ reliability, I accept that there were not, from an objective or subjective perspective, reasonable and probable grounds to believe that Mr. Rodgerson had killed Ms. Young.

[67] It was reasonable for the police to continue their investigation and apply for the CDSA search warrant. The ITO, sworn in support of that warrant, disclosed the details of the missing person investigation that was ongoing with respect to Ms. Young. Based on what Mr. Roberts had told the police, there were reasonable grounds to believe that evidence in relation to the specified drug offences would be found in the home.

[68] The execution of the search warrant resulted in the following additional information: (a) There was an overwhelming smell of bleach in the home, consistent with it having been thoroughly cleaned recently. (b) There were gloves in the sink and a mop in the kitchen. (c) Carpet in one of the bedrooms had been ripped out. (d) There was a bloodstained mattress in the backyard. There was a bottle of bleach and a partially open garbage bag beside the mattress. (e) There was an area of freshly excavated earth in the backyard roughly consistent in size with that of a human body. It was covered by a tarp and there were two patio stones leaning up against a nearby wall. A small shovel was also observed nearby. (f) When Mr. Rodgerson was paraded on the drug charges, he was observed to have four stab wounds and multiple long scratches on his back.

[69] The observations made during the execution of the search warrant confirmed everything that Mr. Roberts had told the police. Adding together the information the police had prior to entering Mr. Rodgerson’s home and the observations made during the execution of the search warrant, the only reasonable inference that could be drawn was that he had killed Ms. Young. At that point there was no realistic possibility that she was going to be found alive. She had vanished without a trace 2 ½ days earlier and had not contacted anyone. That was totally out of character for her. Ms. Young’s family had checked with the local hospitals to confirm that she was not there. The bloodstained mattress provided evidence that she had been hurt, and the freshly dug earth ought to have told the police exactly where they would find her body. In my view, prior to 10:20 a.m. on October 29, objectively there were more than reasonable grounds to believe that Ms. Young was deceased and that Mr. Rodgerson was responsible for her death.

[70] Mr. Rodgerson submits that the police should have arrested him for murder once the reasonable grounds to do so existed. Had Detective Henderson done so prior to beginning the video statement, Mr. Rodgerson would have been clear on what his jeopardy was. In contrast, the Crown’s position is that even when reasonable grounds exist, the police are not obligated to arrest someone. The issue is whether Mr. Rodgerson understood the general nature of the jeopardy he was in. If he did, there was no violation of Section 10(a) of the Charter.

[71] I agree with the Crown that the police are not required to arrest someone the moment that they have the reasonable and probable grounds to do so. The language of Section 495(1) of the Criminal Code is permissive. It states that an officer may arrest a person without a warrant provided there are reasonable grounds to believe that person has committed an indictable offence. The section does not require that an arrest be made once reasonable grounds exist.

[72] In R. v. Latimer, [1997] S.C.J. No. 11, the police did not arrest the accused for murder even though reasonable grounds to do so clearly existed. Instead, he was told that he was being detained in relation to the death of his daughter. The fact that Mr. Latimer was not formally arrested did not, in itself, establish a violation of Section 10(a). The court held that it had to look beyond the exact words used to determine whether the accused understood the basis for his detention and the extent of his jeopardy (at paragraphs 30 and 31).

[73] Further support for the conclusion that the police are not obligated to arrest anyone comes from cases decided in the context of detentions. For instance, in R. v. Hall, [2004] O.J. No. 5007 (C.A.), the police had warrants compelling the accused to provide samples of his DNA and an impression of his hands. They chose to ask the accused to attend the police station voluntarily for an interview rather than executing the warrants and compelling his attendance. The accused asserted that the fact that the police had the ability to compel his attendance meant that he was detained. In rejecting this argument, the court held that the police were not obligated to execute the warrants or even advise the accused that they existed (at paragraphs 22 and 23).

[74] Similarly, in R. v. Pomeroy, 2008 ONCA 521, [2008] O.J. No. 2550 (C.A.), the police had reasonable grounds to arrest the accused for failing to comply with a probation order prior to him attending the station to give a statement in a murder investigation. They chose not to arrest him as they hoped to gain information about the murder. However, partway through his statement, the officer conducting the interview made the decision that he was going to arrest the accused for breaching his probation. He did not advise the accused of this intention and continued on with the interview. The accused argued that he was effectively detained at the moment the police decided that he was going to be arrested. The court did not accept this submission and found that the focus of the inquiry could not be limited to the intention or perception of the police (at paragraph 38).

[75] These cases provide additional support for the conclusion that the failure of the police to arrest someone whom they have reasonable grounds to believe committed an offence is not determinative of whether there was a violation of Section 10(a). The proper approach is to consider all of the circumstances and to apply a contextual analysis.

[76] There are two fundamental components to the rights enshrined in Section 10(a) of the Charter. First, no one is required to submit to an arrest without knowing the reasons for it. Secondly, a person can only exercise their Section 10(b) right to counsel in a meaningful way if they understand the extent of their jeopardy (R. v. Evans, [1991] S.C.J. No. 31 at paragraph 31). It is the second aspect of the Section 10(a) rights that is in issue in this case.

[77] As stated in R. v. Black, [1989] 2 S.C.R. 138, a purposive approach should be taken when interpreting Charter provisions (at page 152). In R. v. Nguyen, 2008 ONCA 49, the court explained that the purpose of Section 10(b) was to ensure that a person who has been arrested or detained understands his or her right to silence, and can make a meaningful choice about whether to exercise it (at paragraph 20).

[78] In R. v. Sawatsky, [1997] O.J. No. 3561 (C.A.), the court stated that in situations where a person is being interviewed about something other than what they were detained on, the police must inform them of both the reason for the detention and the proposed subject matter of the interview. This is necessary so that the detainee can make an informed choice about whether to speak to counsel. A person must be aware of their risk of self-incrimination.

[79] In R. v. Smith, [1991] 1 S.C.R. 714, the court considered in detail the purpose of Section 10(a). Applying a purposive approach, it held that an accused person must understand generally the jeopardy he or she is in, in order to appreciate the consequences of waiving the right to counsel.

[80] The court considered the purpose of the Section 10(b) rights in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310. It found that in the context of a custodial interrogation, the primary purpose of the right to counsel is to make sure that the detainee understands their right to silence such that they can make an informed choice about whether to speak with the police or not. Section 10(b) ensures that a detainee’s decision to cooperate with the police is free and informed. It does not guarantee that a person’s choice is a wise one, nor can it safeguard against subjective factors that may influence a decision to speak to the police (at paragraphs 24 and 26).

[81] A contextual approach must be applied to the facts of each case to determine whether a detainee had a sufficient understanding of the extent of his jeopardy to make informed choices about whether to exercise his right to counsel and his right to remain silent. In Evans, supra, the court stated that it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used by the police. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to effectively exercise his right to counsel (at paragraph 35).

[82] Mr. Evans, who had cognitive delays, was originally arrested for drug offences. During a police interview he was told that things had taken quite a change and that the police thought it was possible that he was involved in the murder. The court found that this knowledge suggested that the requirements of Section 10(a) had been satisfied (at paragraphs 36 and 37).

[83] In Latimer, supra, the accused was told that he was being detained in relation to the death of his daughter. One of the officers who dealt with him advised him that what he was about to say had very serious consequences. The court found that in the circumstances, Mr. Latimer understood the reason for his detention and the extent of his jeopardy, notwithstanding the fact that he had not been arrested for murder.

[84] In Smith, supra, the court stated that an accused person does not need to have complete information in order to waive his Section 10(b) rights. The failure of the police to precisely identify the charge a detainee is facing is not necessarily fatal (at page 728). The focus of the inquiry should be on the reality of the total situation as it impacted the accused’s understanding, and not on the technical detail of what he may or may not have been told. The question is whether the accused had enough information to make an informed choice about whether and how to exercise his rights (at page 729).

[85] In R. v. Bos, 2000 BCCA 359, [2000] B.C.J. No. 1249 (C.A.), the accused was charged with manslaughter in relation to the death of his infant daughter. He gave a statement to the police shortly after she died. When explaining the reason for his detention, the police officer told him that they were investigating the “apparent assault” of his baby. In light of the fact that the child had died, this could be viewed as minimizing the extent of Mr. Bos’ jeopardy. While the focus of the appeal was on the fact that the officer did not expressly refer to the toll free number for duty counsel, no concern was raised over the fact that the accused was cautioned in relation to an apparent assault and not manslaughter.

[86] In R. v. O’Donnell, [1991] N.B.J. No. 531 (C.A.), the accused had been in a serious motor vehicle accident in which a child was severely injured. Mr. O’Donnell appeared to be impaired so the police made a demand for him to provide a sample of his breath. In explaining the reason for his detention, the officer told him only that there were grounds to believe he had consumed alcohol and committed an offence under Section 253 of the Criminal Code. There was no evidence that Mr. O’Donnell was familiar with that section. Furthermore, in the time between the taking of the first and second breath samples, the police were made aware that the child had died. They did not inform Mr. O’Donnell of this development or re-advise him of his right to counsel.

[87] Mr. O’Donnell sought to have the results of his breath tests excluded on the basis that the police had not complied with Section 10(a) of the Charter. The court found that while the breath demand was mechanical, all of the possible charges Mr. O’Donnell faced arose out of events which he had complete knowledge of. The officer was not required to advise Mr. O’Donnell of all of the potential charges he might face, or the possible sentences that could result. The accused knew that he had been drinking and had been involved in a serious accident. As a result, he was possessed of sufficient knowledge to understand generally the jeopardy that he faced, and was in a position to properly decide whether to exercise his right to speak with a lawyer.

[88] Mr. Rodgerson submits that the description by Detective Henderson of a sliding scale of potential offences ranging from assault to murder was too broad to adequately inform him of the true extent of his jeopardy. He points to the fact that Mr. Roberts, who was being interviewed as a witness and not a suspect, was only cautioned in relation to murder and accessory after the fact to murder. There was no reference to the far less serious offence of assault.

[89] The defence relies on the case of R. v. Carter, 2012 ONSC 94, as being factually similar. In Carter, the accused were being investigated in relation to two missing persons. Pomerance J. found that when the police conducted the interview in question, they knew or ought to have known that the victims were dead. As a result, they were required to inform the accused that he was a suspect in a homicide investigation, and not what she described as “an innocuous inquiry into missing persons”. Pomerance J. found that the police were not obligated to charge the accused with murder until the victims’ bodies were found, but did have to tell him what he was really being questioned about. In that case, the reference to a missing persons investigation was not sufficient and constituted a violation of Section 10(a).

[90] Each case must be decided on its own facts. The question that must be answered is whether, based on the totality of the circumstances, Mr. Rodgerson understood that his jeopardy included murder. Anything less would not be sufficient to comply with Section 10(a) of the Charter in the circumstances as they were known to the police prior to 10:20 a.m. on October 29.

[91] Detective Henderson’s purpose in speaking with Mr. Rodgerson at 10:20 a.m. was to advise him of the change in the investigation and to encourage him to contact counsel again. The officer began by making sure that Mr. Rodgerson understood his rights to counsel as they had been explained to him by the arresting officers. Mr. Rodgerson said that he did and that it was “pretty basic”.

[92] Detective Henderson then began to explain that the focus of the police investigation had changed. He told Mr. Rodgerson that he was not talking about the plants, but rather wanted to ask him about the cleaning that had taken place in the home. When Mr. Rodgerson responded by saying that everyone cleans, Detective Henderson told him that based on what the officers saw in his home, his jeopardy had gone up. He said that he believed something had happened in the home that could be as simple as an assault. He also said that it could be a very serious assault, an attempted murder or a murder. Detective Henderson advised Mr. Rodgerson that he was looking into all of those different types of incidents. He then advised Mr. Rodgerson of his right to counsel.

[93] Detective Henderson made it clear that he was not investigating the drug offences and referred again to “something that potentially happened inside your home”. When he asked Mr. Rodgerson if he understood, he nodded affirmatively. Detective Henderson then asked him to repeat what he had just been told. Mr. Rodgerson replied by saying that he understood that the police were investigating “an assault or something seriouser”. Detective Henderson said “Yeah. Something serious. Potentially even murder so I want you to understand that”. Once again, Mr. Rodgerson nodded affirmatively.

[94] Detective Henderson then told Mr. Rodgerson that he wanted him to speak to counsel again. He asked if he had a lawyer he dealt with on a regular basis. When Mr. Rodgerson said that he did not, Detective Henderson said he could call duty counsel for him. Mr. Rodgerson asked “about?” Detective Henderson told him his jeopardy had gone up because he was now being investigated for “murder all the way down to a simple assault”. When asked if he understood, Mr. Rodgerson said he understood what the officer was saying but did not understand. Detective Henderson asked how he could improve what he was saying to help Mr. Rodgerson understand. He then explained what he meant by an increase in jeopardy. Specifically, he told Mr. Henderson that he could be charged with a more serious offence than the original drug offences. He said that what he was investigating was a “much more serious offence”, and that the jeopardy included the potential to go to jail for a long period of time. When Detective Henderson asked if that made sense, Mr. Rodgerson said he understood.

[95] Detective Henderson then told him that they would call duty counsel and that Mr. Rodgerson should explain the new information to the lawyer. He then went on to tell Mr. Rodgerson that he was under no obligation to talk to him. Detective Henderson asked if any other police officer had treated him poorly and provided Mr. Rodgerson with the secondary caution. Mr. Rodgerson was then returned to his cell so that duty counsel could be contacted.

[96] As noted above, prior to putting the call through to the cells, Detective Henderson explained the focus of his investigation to duty counsel. Mr. Rodgerson then spoke with counsel for eight minutes. While he was being escorted back to his cell after this call by Staff Sergeant Elliott, Mr. Rodgerson said that was the last call he would be making for a while and asked whether jail was similar to the police holding cell.

[97] Detective Henderson began the substantive portion of his interview with Mr. Rodgerson at 12:20 p.m. At the outset, he confirmed that Mr. Rodgerson had spoken with duty counsel and asked if he understood why he was there. Mr. Rodgerson said that he did and that he understood what duty counsel had told him. Detective Henderson then outlined the observations that officers had made in the home including the smell of bleach, the fact that carpet had been pulled up in one of the bedrooms, the bloodstained mattress in the backyard and the freshly dug earth. He also told Mr. Rodgerson that he was concerned about the young lady that he had met at the Down Omer Bar & Grill. Detective Henderson said that Ms. Young had not been seen since late Sunday night. He advised Mr. Rodgerson that Mr. Roberts had told them that he saw Ms. Young in the home on Sunday night. All of this information was provided to Mr. Rodgerson within the first five minutes of the interview and prior to Mr. Rodgerson making any meaningful statement.

[98] While it would have been preferable for Detective Henderson to have focused exclusively on the offence of murder and not included any reference to assault, I am satisfied that Mr. Rodgerson nevertheless understood the general nature of his jeopardy. Detective Henderson used the word “murder” three times in his conversation with Mr. Rodgerson at 10:20 a.m. He told Mr. Rodgerson several times that his jeopardy had increased and that the offence he was investigating was much more serious than drugs. This was not a situation where Detective Henderson was deliberately minimizing the potential legal consequences of the acts being investigated. Detective Henderson’s words, demeanour and actions in insisting that Mr. Rodgerson speak to counsel again, all made it clear that the situation was extremely serious. There is no possibility that Mr. Rodgerson’s concerns were inappropriately allayed by the conduct of the police. To the contrary, the evidence as a whole supports the finding that Mr. Rodgerson was aware that his situation was one of grave seriousness (Smith at page 730).

[99] In addition, Detective Henderson outlined in considerable detail the nature of his investigation for duty counsel, including the fact that the police were concerned for the safety of a missing person. The police are not required or entitled to inquire about the quality of the advice an accused person receives from counsel. Unless a detainee indicates that the advice he received was inadequate, the police can assume that he is satisfied with his exercise of his right to counsel and can commence their interview (R. v. Willier, 2010 SCC 37, [2010] S.C.J. No. 37 at paragraphs 41 and 42). In this case, Detective Henderson did everything he could to ensure that Mr. Rodgerson was able to effectively exercise his right to counsel in relation to the investigation into Ms. Young. Although Mr. Rodgerson asked some questions about the difference between duty counsel and a lawyer that is privately retained, he never expressed any dissatisfaction with the advice he had received.

[100] In fact, on several occasions during the interview, Mr. Rodgerson said that he intended to follow the advice he had been given by duty counsel. For instance, just over three minutes into his statement, Mr. Rodgerson said “I was told not to say, just the duty counsel told me to tell my name, you know, and go to Court”. A few minutes later he said “I’m not answering any questions. Not that I don’t wanna help ya, I’m not trying to harm your investigation, but I’m just gonna take advice from my Legal Aid I guess, right. Sorry.” When Detective Henderson was asking him about Mr. Roberts, Mr. Rodgerson said “I don’t wanna talk anymore. You guys will probably ask questions all day but I don’t wanna talk, okay. I don’t have to right?” Detective Henderson confirmed that he did not have to speak. A similar conversation occurred when Detective Henderson showed Mr. Rodgerson Ms. Young’s photograph. Mr. Rodgerson said “I don’t really wanna look at any photographs, I don’t wanna talk, cuz I don’t have to right?” Once again Detective Henderson agreed that he did not. When he was being interviewed by Detective Dingwall, Mr. Rodgerson said that he did not really have a story and had not said too much “because they tell me not to say anything”.

[101] All of these comments by Mr. Rodgerson make it clear that he received appropriate advice from counsel about his right to remain silent in relation to the investigation into Ms. Young. Therefore, the purpose of Sections 10(a) and 10(b) was satisfied. Mr. Rodgerson had sufficient information to effectively exercise his right to counsel and to make an informed choice about whether or not to speak to the police.

[102] In addition, although it is not necessary to rely on Mr. Rodgerson’s subjective knowledge to conclude that he adequately understood his jeopardy, in my view it can be taken into account. Mr. Rodgerson submits that considering his subjective knowledge undermines the presumption of innocence because it assumes that he is guilty of the offence charged. In support of this position he relies on R. v. Borden, [1994] 3 S.C.R. 145. In that case, the police used a consent DNA sample provided in relation to one sexual assault to further their investigation on a different one. The Crown attempted to argue that the accused’s consent was informed and voluntary because he knew that he had committed the second sexual assault several weeks earlier. In rejecting this position, the court stated that the logical extension of this argument would be that Charter rights do not apply to people who are guilty of the offence for which they are being detained. This would obviously be an incorrect and unconstitutional result (at page 163).

[103] Mr. Rodgerson’s case can be distinguished from Borden, supra, because there is a firm evidentiary foundation in relation to his subjective knowledge. Any conclusions drawn about what Mr. Rodgerson knew when he was speaking to the police do not come from an impermissible presumption of guilt, but rather are founded on the evidence. This is a critical distinction and one that has been recognized in several cases.

[104] In Smith, the court found that it was reasonable to infer from the evidence that the accused either knew or strongly suspected that he had killed his victim. The court relied on the facts of the shooting and Mr. Smith’s post offence conduct in coming to this conclusion. As a result, it was satisfied that he was aware that his situation was of the utmost seriousness when he waived his right to counsel, notwithstanding the fact that he had been told that he was being detained in relation to a shooting rather than a murder (at page 729).

[105] In R. v. Eakin, [2000] O.J. No. 1670 (C.A.), the accused was told he was under arrest for sexual assault but was not given any details about the allegations. He argued that his Section 10(a) rights were violated because he assumed that he was being investigated for something that had taken place on the date of his arrest. Since had not committed any offence on that date, he did not feel that he needed to speak with counsel. In reality, the sexual assault had occurred several weeks earlier. In rejecting the accused’s submission, the court stated that it was noteworthy that the accused was aware that he had been found prowling in a local hotel where he was on the lookout for another victim. The court concluded that it could be inferred from all of the circumstances that he had sufficient information to make an informed waiver of his rights. The reference to the accused’s knowledge of having been caught prowling demonstrates that the court took into account his subjective knowledge on the Section 10(a) issue.

[106] Similarly, in R. v. Boomer, 2001 BCCA 270, [2001] B.C.J. No. 760 (C.A.), the accused sought to exclude the results of his breath tests because he was not informed that his passenger had died. When he was detained, Mr. Boomer was told it was because he was the driver in a serious injury motor vehicle accident and had been consuming alcohol. The accused submitted that his Section 10(a) rights had been violated because he was not aware of the full extent of his jeopardy once his passenger died. In rejecting this argument the court referred to the circumstances that were known to the accused at the time of his detention, including the fact that his passenger had been seriously injured. The court found that it would be a stretch to say that he was not aware that he faced jeopardy on a serious matter in those circumstances.

[107] In the case at bar, Mr. Rodgerson knew more than the police did when his videotaped statement began. He knew that Ms. Young was dead and was buried in his backyard. This finding is not based on an impermissible assumption that Mr. Rodgerson is guilty of any offence. His guilt or innocence is a matter for the jury to determine. If the jury has a reasonable doubt about whether he killed Ms. Young in an act of self-defence, he will be found not guilty.

[108] However, on the issue of Mr. Rodgerson’s understanding of his jeopardy it is appropriate to consider the totality of the circumstances, including those facts known to him, as established by the evidence. Mr. Rodgerson admits that he caused Ms. Young’s death and buried her body in his backyard. As a result, he could not possibly have been misled by the references to an assault or an attempted murder. He knew Ms. Young was dead. In those circumstances he would have fully understood the nature of the police investigation, particularly since Detective Henderson used the word “murder” three times. While that word has a specific legal meaning in terms of the elements of the offence that must be proven, it is commonly understood by laypeople to refer to an act of violence that has resulted in death.

[109] Based on all the circumstances, including the explanation provided to Mr. Rodgerson by Detective Henderson about the focus of his investigation, the information Detective Henderson gave duty counsel before Mr. Rodgerson spoke with him and Mr. Rodgerson’s knowledge of Ms. Young’s condition and location at the time the interview began, I am satisfied that he fully understood the extent of his jeopardy. As a result, there was no violation of his Section 10(a) or 10(b) Charter rights.

[110] A second issue with respect to Section 10(b) is the fact that at several points in his statement Mr. Rodgerson indicated that he wanted to speak to counsel again. For instance, approximately 50 minutes into his conversation with Detective Henderson, he said “I wonder if I should get a lawyer to come right into this building”. The officer responded by saying “be my guest”. A discussion then ensued about how much that would cost and Mr. Rodgerson did not pursue the matter at that time.

[111] During his interview with Detective Dingwall, Mr. Rodgerson said “I need to call somebody or figure something out, I don’t know, my mind”. He did not specifically ask to speak to a lawyer again at that point. A few minutes later, Mr. Rodgerson said “I need someone, I need to get someone to explain, I need to use the phone. I gotta make a call. I need an outside source.” When Detective Dingwall told him that was not going to be permitted, Mr. Rodgerson replied “Oh. I just wanted to call a lawyer”. Detective Dingwall said “You’ve spoken to a lawyer. You’re jeopardy hasn’t changed. You’re in the exact same boat you were when you spoke to him last time”. Mr. Rodgerson answered “Yeah, exactly”.

[112] At the end of his conversation with Detective Dingwall, Mr. Rodgerson was obviously feeling the stress of the situation he was in. He had been confronted by two homicide officers who made it clear that they believed he had harmed Ms. Young. He was told that forensics officers were combing his house for evidence and that they would find even the smallest drop of blood. Mr. Rodgerson would have known it was only a matter of time before her body was discovered in his backyard. When Detective Dingwall told him that he was destroying his credibility by refusing to be honest about what happened, Mr. Rodgerson said twice “I need legal counsel”. He also said that he did not understand, that he had questions and that he wanted to request counsel. When Detective Hoard entered the room to commence the third portion of the videotaped statement, Mr. Rodgerson asked him if he was the lawyer. When Detective Hoard said he was a police officer, Mr. Rodgerson did not say anything else about wanting a lawyer.

[113] There is no constitutional right to consult counsel repeatedly. In R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, the court explained that the purpose of Section 10(b) was to support the detainee’s Section 7 right to choose whether or not to cooperate with the police investigation. Normally, this purpose is achieved by a single consultation with counsel at the time of detention or shortly thereafter (at paragraph 47).

[114] In certain circumstances, new developments will require that an accused be given a second opportunity to consult with counsel. It may be necessary for the detainee to get additional advice in order to make an informed decision about whether to cooperate with the police. The concern is that new circumstances will render the initial advice inadequate (Sinclair, supra, at paragraph 48). Among the situations that could trigger a right to a second consultation is a change in the accused’s jeopardy. If the investigation takes a new and more serious turn, the original advice may not be sufficient in relation to the jeopardy now faced by the detainee (Sinclair at paragraph 51).

[115] However, it is not enough for an accused to assert after the fact that he was confused or needed help. There must be an objective indication that further legal advice was necessary to permit him to make a meaningful choice about whether to continue to cooperate with the investigation (Sinclair at paragraph 55).

[116] The presumption is that the initial legal advice received by a detainee was correct and sufficient. A refusal to permit a further consultation with counsel will only result in a violation of Section 10(b) when it is clear that new information or developments rendered the initial advice insufficient or incorrect (Sinclair at paragraph 57). A request by a detainee, without more, is not enough to retrigger the Section 10(b) right to counsel. There must be a change in circumstance that suggests that the choice faced by the accused has been significantly altered, such as to require further legal advice (Sinclair at paragraph 65). The fact that the police progressively reveal more information to demonstrate the strength of the case against the accused is not enough to trigger the right to a further consultation with counsel (Sinclair at paragraph 60).

[117] In this case, there was no new information or development during the portion of the videotaped statement that the Crown seeks to adduce. Detective Henderson outlined very early in his conversation with Mr. Rodgerson what the nature of the evidence against him was. Detectives Dingwall and Hoard were more persistent in telling him that his continued denials of knowledge about Ms. Young’s condition and whereabouts were untenable. However, this did not result from any new information. Nothing of significance about the investigation changed from the time Detective Henderson began speaking with Mr. Rodgerson until Ms. Young’s body was discovered. The Crown does not seek to tender the statement beyond that point.

[118] I find that Mr. Rodgerson’s requests to speak to a lawyer were not the result of any confusion that he was experiencing. Nor were they caused by a material change in the nature of the investigation. There was nothing that occurred during the statement that could have rendered the initial legal advice he had been given insufficient or incorrect. Mr. Rodgerson had already spoken with duty counsel three times before giving his videotaped statement. He had a seven minute conversation with duty counsel in relation to the drug charges. He then spoke to the bail court duty counsel, who may not have given him any advice about his right to silence or how to handle a request to speak with the police. Finally, he spoke to duty counsel again for eight minutes after being told that he was being investigated in relation to whatever had happened in his home. His repeated references to his right to remain silent demonstrate that he received appropriate advice that was sufficient to allow him to make an informed decision about whether to cooperate with the police. The fact that Mr. Rodgerson never made any admissions during the roughly 4 ½ hours that he spoke with three seasoned homicide officers confirms that he was fully aware of his right to remain silent. Consequently, I am satisfied that Mr. Rodgerson was not entitled to consult counsel again during the course of his videotaped statement. The failure of the police to stop the interview to facilitate a further call to counsel did not violate Section 10(b) of the Charter.

[119] For the foregoing reasons, I am satisfied that Mr. Rodgerson’s videotaped statement was obtained in a manner that was fully compliant with Sections 10(a) and 10(b) of the Charter.

The Voluntariness of the Videotaped Statements

[120] Mr. Rodgerson did not allege that he was subjected to any threats, inducements or improper use of physical force. All of his contact with the three homicide officers who interviewed him was captured on video, so there is a full and complete record of his statement. One issue the defence does raise is with respect to the caution given by Detective Henderson because it was not complete. Mr. Rodgerson was told that he did not have to say anything. However, Detective Henderson did not advise him that anything he did say would be recorded and could be used as evidence. The defence submits that the lack of a full caution renders the statement involuntary.

[121] In R. v. E.B., 2011 ONCA 194, [2011] O.J. No. 1042 (C.A.), the court held that the absence of a standard caution is only one factor to be considered in the voluntariness analysis. The fact that an accused person was cautioned does not automatically render a statement voluntary. Conversely, the absence of a full caution does not necessarily preclude a finding of voluntariness. In each case, the issue must be decided based on a full consideration of all of the circumstances surrounding the taking of the statement (at paragraph 88).

[122] In R. v. Singh, 2007 SCC 48, [2007] S.C.J. No. 48, the court recognized the importance of police cautions but stated that the significance of a caution may be diminished if the detainee has spoken to a lawyer, because he will presumably have been advised by counsel of his right to remain silent (at paragraph 33).

[123] In this case, Mr. Rodgerson was read the full primary caution immediately after his arrest for the drug offences. This occurred only seven hours before he began his videotaped statement. While the caution related to his arrest for drugs, it provided him with the correct information about his right to remain silent and the consequences of waiving that right. Furthermore, Mr. Rodgerson spoke to duty counsel in relation to the drug charges and in relation to the investigation surrounding Ms. Young. It is reasonable to infer that one or both of those lawyers would have explained his right to remain silent and the consequences of speaking to the police. It is clear from the comments Mr. Rodgerson made at several points during his statement that he fully understood his right to remain silent. As a result, the failure of Detective Henderson to read him the complete primary caution does not raise a reasonable doubt about the voluntariness of the videotaped statement.

[124] At several points in his statement, Mr. Rodgerson indicated that he wished to remain silent. As noted in Singh, supra, the right to remain silent does not mean that a person has the right not to be spoken to by the police. The court recognized the importance of police questioning in the fulfillment of their investigatory role (at paragraph 28). The significant societal interest in the proper investigation of criminal offences was also acknowledged in Smith. The court stated that a rule requiring the police to automatically cease questioning a suspect who said he wished to remain silent, would not strike the proper balance between the public’s interest in the investigation of crimes and the suspect’s interest in being left alone (at page 343).

[125] In this case, the police had a compelling and legitimate reason to speak to Mr. Rodgerson. A young woman had been missing for 2 ½ days and there was every reason to believe that Mr. Rodgerson had killed her. The police were trying to confirm Ms. Young’s condition and location so that they could advise her family. One can only imagine the anguish that Ms. Young’s family endured while they were waiting for news of her whereabouts. There was a strong societal interest in speaking to Mr. Rodgerson in an attempt to gain information that the police could share with Ms. Young’s family.

[126] While the police were at times persistent in questioning Mr. Rodgerson, at no time did their conduct approach the point of being oppressive or aggressive enough to deprive Mr. Rodgerson of the ability to choose whether or not to speak to them. During his conversation with Detective Henderson, Mr. Rodgerson challenged the officer on certain points. For instance, he asked Detective Henderson if he had ever taken psychology based on the officer’s interpretation of an answer he had given. Mr. Rodgerson went on to analyse the officer’s interpretation in an animated manner. Shortly after that, Mr. Rodgerson disagreed with Detective Henderson when the officer claimed that he had said he was having difficulty remembering what had happened. Mr. Rodgerson corrected Detective Henderson on this point. Further on in the statement, he responded to Detective Henderson’s statement that he had no doubt that Mr. Rodgerson was responsible for whatever had happened to Ms. Young by saying he thought the officer was “a cop not a judge”. These comments demonstrate that Mr. Rodgerson was not intimidated by Detective Henderson.

[127] The interview with Detective Dingwall began quite casually. The officer brought food into the room for himself and Mr. Rodgerson and they had a pleasant conversation about life on the East Coast. There was some confusion over Mr. Rodgerson’s date of birth. While they were discussing that, Mr. Rodgerson laughed and suggested that maybe the police had the wrong person. At no time did any police officer raise his voice to Mr. Rodgerson or treat him in a disrespectful manner.

[128] At several points in the interview, the officers encouraged Mr. Rodgerson to tell them the truth. Several times they made reference to Ms. Young’s family and their desire to know what had happened. In R. v. Oickle, 2000 SCC 38, [2000] S.C.J. No. 38, the court recognized that few suspects will spontaneously confess to an offence. Normally, the police somehow have to convince the accused that it is in his or her best interest to confess. This only becomes improper when the inducement, either standing alone or in combination with other factors, is strong enough to raise a reasonable doubt about whether the accused’s will was overborne (at paragraph 57).

[129] The use of phrases suggesting it would be best if the subject told the truth should not automatically result in exclusion. All of the circumstances surrounding the statement must be considered in context to determine whether there is a reasonable doubt about its voluntariness (Oickle, supra, at paragraph 54). In Oickle, the police told the accused that he would feel better if he confessed and that his fiancée and members of the community would have greater respect for him. The court characterized these comments as “merely moral inducements” and not improper threats or inducements. It pointed out that the accused was never mistreated nor was he given any implied promises. While the police suggested possible benefits of confessing, the accused was never offered a quid pro quo for doing so. As a result, the comments did not undermine the voluntariness of the statement.

[130] The comments by Detectives Henderson, Dingwall and Hoard, encouraging Mr. Rodgerson to tell the truth, similarly do not give rise to a concern about the voluntariness of the statement. The officers never offered Mr. Rodgerson anything in exchange for providing them with information. They merely attempted to appeal to his conscience so that they could give Ms. Young’s family some answers about what had happened to her. Their comments clearly did not have the effect of overcoming Mr. Rodgerson’s will because he never admitted to having killed Ms. Young and buried her in his backyard. Mr. Rodgerson steadfastly maintained his position that he did not know Ms. Young and had not killed her, over the course of the 4 ½ hours he spoke with the police.

[131] Taking into account all of the circumstances surrounding the videotaped statement, I am satisfied beyond a reasonable doubt that it was voluntary.

Section 9

[132] Mr. Rodgerson submits that his right not to be arbitrarily detained or imprisoned under Section 9 of the Charter was violated by the failure of the police to bring him before a Justice of the Peace within 24 hours on the drug charges, as they are required to do by virtue of Section 503 of the Criminal Code. He seeks the exclusion of all three portions of his videotaped statement on the basis that it was his lengthy interview with the police that caused him to miss bail court on October 29.

[133] There is no dispute that Mr. Rodgerson was not brought before a Justice of the Peace on his drug charges within 24 hours. Equally uncontentious is the fact that he did appear in bail court within 24 hours of his arrest on the charge of murder. The Crown takes the position that because the violation of Section 9 occurred in relation to the drug charges, Mr. Rodgerson cannot seek a remedy in relation to the murder charge. According to the Crown, he ought to have sought a stay of proceedings or a reduction in his sentence on the drug charges if his Section 9 rights were violated.

[134] Mr. Rodgerson was arrested in relation to two drug offences at 5:13 a.m. on October 29. He was brought to 17 Division immediately and began the parading process at 5:44 a.m. He was lodged in a cell at some point prior to 6:21 a.m. Staff Sergeant Elliott was the officer in charge of 17 Division. He was responsible for the well-being of every prisoner in the police station. In my view, this includes making sure that each prisoner is brought to court in accordance with the requirements of Section 503. He testified that he began his shift as Mr. Rodgerson was brought into the station. There is no evidence about when Staff Sergeant Elliott went off duty. It is reasonable to assume that he would have been relieved by another Staff Sergeant who would have had the same responsibility with respect to all prisoners in the custody of the police.

[135] Mr. Rodgerson spoke to duty counsel in relation to the drug charges twice: for seven minutes beginning at 6:21 a.m. and again for six minutes at 8:48 a.m. The second call was with duty counsel who was working in the bail court that day. Staff Sergeant Elliott testified that bail court duty counsel calls the division to speak with all persons who are in custody and are waiting for bail hearings. While there was no evidence on this point, it is reasonable to infer that the purpose of this call would be to advise each accused about the bail process and ask whether he intends to seek release. The duty counsel would be expected to inquire about potential sureties, and if none are available to advise about alternatives such as the Bail Program. The fact that Mr. Rodgerson spoke with the bail court duty counsel for six minutes suggests that they had a meaningful conversation about the bail process.

[136] There is no evidence that the police were actively investigating the drug offences during the time Mr. Rodgerson was being held at 17 Division. The officers who executed the CDSA warrant went into the basement of Mr. Rodgerson’s home and made observations consistent with there being a marijuana grow operation in existence. By 6:00 a.m., the police had enough information to complete the basic components of the Crown brief that would have been required for bail court on the drug charges.

[137] Detective Henderson testified that he effectively put an end to the drug investigation at 5:30 a.m. when he took control of Mr. Rodgerson’s home. He instructed the drug enforcement officers to leave the premises because he intended to obtain a Criminal Code search warrant. While this was a legitimate investigative step to take in relation to the investigation into Ms. Young, it meant that the drug investigation was at an end. The failure to bring Mr. Rodgerson to bail court on October 29 was not related to any work that was being done in relation to the drug charges. The delay was caused solely by the ongoing homicide investigation.

[138] Unfortunately, the evidentiary record on the Section 9 application is far from robust. Neither Crown nor defence counsel asked Detective Henderson, who was the senior homicide officer, any questions on this issue. In fairness to the Crown, Mr. Rodgerson did not file this Charter application until after Detective Henderson and Staff Sergeant Elliott had completed their testimony. However, the Crown was given the opportunity to call any evidence it wished in response to this application and declined to do so. This important issue must be decided on the basis of the limited evidence before me, and any matters which are uncontroversial enough for me to take judicial notice of.

[139] For instance, I heard very little evidence about the procedure for making sure that a prisoner is brought to bail court in a timely fashion in Oshawa. Staff Sergeant Elliott testified that “normally” a prisoner is taken to bail court on the same day he or she is arrested. However, he said that a person who is paraded by 6:00 a.m. is definitely not in bail court by 9:00 a.m. Prisoners in 17 Division do not have to be physically transported to court but can appear by video from the police station. I heard no evidence about how that is arranged or how much time it takes to move a prisoner from the cells to the video booth. Staff Sergeant Elliott testified that it is the staff in bail court that calls the list and decides in which order to deal with prisoners. No evidence was led about what time the bail court staff were ready to deal with Mr. Rodgerson. It is reasonable to infer that at some point on October 29, someone from bail court would have contacted 17 Division to advise that they were ready to address his matter.

[140] I did not hear any evidence about the hours that a Justice of the Peace was available to deal with Mr. Rodgerson on October 29. In the absence of evidence on this point, it is reasonable to infer that bail court follows the same schedule as the other courts in the Ontario Court of Justice in Oshawa, which run between 9:30 a.m. and 4:30 p.m. However, it is quite common for a court to end for the day prior to 4:30 p.m. if all of its matters are complete. I have no evidence about what time bail court actually ended on October 29. It may very well have been some time prior to 4:30 p.m. This type of information would be readily available to the parties but was not provided to me. In my view, it is the Crown who must bear the responsibility for this deficit in the evidentiary record. When it is clear that an accused person has not been brought before a Justice of the Peace in accordance with the provisions of the Criminal Code, the Crown bears the onus of explaining this failure.

[141] There is similarly no evidence to suggest that an after-hours Justice of the Peace was available to deal with prisoners who did not make it to bail court before the end of the day. If any such person existed, there is no evidence that any effort was made to access the service for Mr. Rodgerson. Staff Sergeant Elliott testified that he knew that an accused person has a right to have a bail hearing as soon as possible. He did not know what time Mr. Rodgerson was brought to bail court.

[142] There was no evidence called about any safeguards that the police employ at 17 Division to keep track of when prisoners are brought in and taken to court. In my view, the Staff Sergeant in charge of the station has an overriding duty to make sure that the rights of all prisoners are respected. From 12:20 p.m. until at least 6:50 p.m., Mr. Rodgerson was in an interview room and in the custody of the homicide officers. This did not relieve Staff Sergeant Elliott of his responsibility to ensure that Mr. Rodgerson was being dealt with in an appropriate manner. There is no evidence that when he went off duty, Staff Sergeant Elliott had a conversation with the homicide officers or the Staff Sergeant who was replacing him about the need to get Mr. Rodgerson to bail court. It would appear that Staff Sergeant Elliott did not take any steps to make sure this occurred, notwithstanding the fact that he was in charge of the division and knew of the requirements of Section 503.

[143] Detective Dingwall testified that Mr. Rodgerson did not go to bail court because the homicide unit was continuing its investigation. He agreed that Mr. Rodgerson was kept in the cells as an investigative measure and that was the reason he was not taken to court. Detective Dingwall did not seem at all concerned about the impact that his desire to interview Mr. Rodgerson in relation to Ms. Young had on his ability to be brought to court on the drug charges. While it is understandable to view the drug charges as insignificant in relation to a murder investigation, the homicide officers showed a complete disregard for Mr. Rodgerson’s right to be brought before a Justice of the Peace in a timely manner.

[144] Although the third homicide officer who interviewed Mr. Rodgerson did not testify, he did discuss bail court during his portion of the statement. Mr. Rodgerson raised the issue with Detective Hoard almost immediately after the officer entered the room to speak with him at 4:20 p.m. Mr. Rodgerson said “Except for how long do I get held for? I thought it was 24 hours and then you see a judge.” Detective Hoard said “yeah” and then they discussed what time Mr. Rodgerson had been arrested. Detective Hoard advised Mr. Rodgerson that his 24 hours was not up until 5:00 a.m. the following morning. Mr. Rodgerson then said “they’re not running it that late, eh?”, to which Detective Hoard answered “they do video stuff”. There is no evidence that a Justice of the Peace was available by video at 5:00 a.m. Detective Hoard then continued on with the interview by telling Mr. Rodgerson that the police needed to find out the truth about what had happened.

[145] Mr. Rodgerson brought up his concern about bail court again a few minutes later by saying “So I gotta wait here til 5:00 this morning and there’s gonna be….” Detective Hoard said “you’ll go to bail court.” He then continued to ask Mr. Rodgerson about what had happened in his home. Detective Hoard’s persistence in questioning Mr. Rodgerson in the face of repeated inquiries about his right to appear in bail court is of concern. It is consistent with the pattern of disregard shown by all of the officers who dealt with Mr. Rodgerson for the provisions of Section 503 of the Criminal Code.

[146] Section 503 actually requires the police to bring an arrested party before a Justice of the Peace without unreasonable delay, and sets 24 hours as the outer limit of the acceptable period of time in which to do so, provided a Justice of the Peace is available. This was made clear in R. v. Simpson, [1994] N.J. No. 69 (C.A.), in which the court stated that an unreasonable delay can occur in less than 24 hours. It should not be assumed that a violation of Section 503 did not occur, simply because an accused was brought before a Justice of the Peace in less than 24 hours (at paragraph 34). The court also described Section 503 as one of the most important procedural provisions in the Criminal Code because the liberty of the subject is dominant (at paragraph 36). The police have a duty to make sure that a prisoner is not detained any longer than is “absolutely necessary” (at paragraph 39). The court concluded that Ms. Simpson’s detention was arbitrary and in contravention of Section 9, because it involved a major violation of a statutory provision that is designed to protect a fundamental right (at paragraph 47).

[147] In R. v. Holmes, [2002] O.J. No. 4178 (C.A.), Rosenberg J.A. characterized the failure of the police to bring the accused before a Justice of the Peace in accordance with Section 503 as being disturbing. He further stated that the police are obliged to do so without reasonable delay, and do not have the power to detain a person for 24 hours for investigative purposes (at paragraph 22).

[148] The legitimate interest of the police in continuing their investigation after an arrest was recognized by the court in R. v. Storrey, [1990] S.C.J. No. 12. On the facts of that case, an 18 hour delay in bringing the accused before a Justice of the Peace was found to be reasonable in the circumstances because it was fully explained. It is significant that in Storrey the accused was not held in contravention of Section 503, so his detention was not unlawful. In R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, the court made it clear that a detention that is unlawful is necessarily arbitrary within the meaning of Section 9 of the Charter.

[149] In R. v. E.W., 2002 NFCA 49, [2002] N.J. No. 226 (C.A.), the accused was held in custody for almost 24 hours before being brought before a Justice of the Peace. The police did not begin taking his statement until he had been in custody for more than 21 hours. The court accepted that a continuing police investigation can provide justification for a delay in taking an accused before a Justice of the Peace. However, the investigation must in fact be ongoing (at paragraph 16). In the absence of evidence, a court cannot speculate that a Justice of the Peace would have remanded the accused in custody to permit the police to continue their investigation (at paragraph 17). Notwithstanding the fact that the accused was brought before a Justice of the Peace in slightly less than 24 hours, the court found that he had been arbitrarily detained. There was no explanation for the failure of the police to have made attempts to interview him earlier than they did.

[150] As noted, the investigation into Mr. Rodgerson’s drug offences was not ongoing during the afternoon of October 29. The homicide officers had put a stop to it and were focused entirely on the murder investigation. The delay in bringing Mr. Rodgerson before a Justice of the Peace was entirely due to the desire of the homicide investigators to interview him in relation to Ms. Young. By utilizing his detention on the drug charges to keep Mr. Rodgerson at the division, the officers did not start the clock running on the 24 hour period set out in Section 503 in relation to the murder until he was arrested later that evening. Whether this was an intentional tactic or not, it had the effect of extending the time that Mr. Rodgerson could be held in relation to the murder because Section 503 only applies to a person who has been arrested.

[151] The Crown’s position on this application seeks to capitalize on the advantage that was gained by the police relying on the detention on the drug charges. The Crown asserts that any Section 9 breach was only in relation to the drug charges because Mr. Rodgerson was brought before a Justice of the Peace within 24 hours of his arrest on the murder. The evidence discloses only that at some point on October 30. Mr. Rodgerson appeared by video in bail court on both the drug charges and the murder. The time of his appearance was not noted on the information but given the hours that bail court normally sits, it is reasonable to infer that his matter was dealt with at some point prior to 4:30 p.m. He had been arrested on the murder less than 24 hours prior to that time.

[152] This fact alone cannot be determinative of the issue. The Court of Appeal recently considered the meaning of the phrase “obtained in a manner” as it appears in Section 24(2). Laskin J.A. stated that the phrase should be given a generous interpretation and the court should consider the entire chain of events between the accused and the police. Where the evidence and the breach are part of the same transaction or course of conduct, the evidence can be said to have been obtained in manner that infringed the Charter. The connection between the evidence and the breach can be temporal, causal or contextual (at paragraph 72).

[153] In R. v. Koszulap, [1974] O.J. No. 726 (C.A.), the court took into consideration the fact that the accused had been held longer than 24 hours on a charge of break and enter when assessing the voluntariness of a statement in relation to an unrelated charge of theft. This case supports the proposition that the contravention of Section 503 does not necessarily have to be in relation to the charge before the court to be relevant.

[154] Applying the test as enunciated in Pino, supra, I have no difficulty in concluding that a portion of Mr. Rodgerson’s videotaped statement was obtained in a manner that contravened Section 9 of the Charter. Although his entire statement was completed within 14 hours of his arrest on the drug charges, and therefore long before the 24 hour time period had elapsed, that does not shield it from Charter scrutiny. In R. v. Gander, 2011 ONSC 3090, [2011] O.J. No. 2725 (S.C.J.), Thomas J. found that the detention of an accused person can become unreasonable well before the expiration of the 24 hour time period, if the police know that their continued investigation will mean that the time available for an appearance in bail court will expire (at paragraph 44).

[155] As noted in R. v. Mendez, 2014 ONSC 498, [2014] O.J. No. 317 (S.C.J.), the practical realities of the situation cannot be ignored. Forestell J. found that there was a temporal and causal contextual connection between the breach and obtaining the statement in Mendez, supra, notwithstanding the fact that the 24 hour time period set out in Section 503 had not elapsed by the time the interview was completed. The accused in that case would have had to have been in court no later than 2:00 p.m. in order to appear before a Justice of the Peace in bail court that day. By keeping him at the division beyond that time to obtain a statement, the police ensured that he would not be brought before a Justice of the Peace within 24 hours.

[156] Duncan J. came to the same conclusion in R. v. C.K., 2005 ONCJ 462, [2005] O.J. No. 4853 (C.J.), which involved statements that were completed approximately 11 hours after the arrest of the accused. However, by that time, bail court had ended and the accused were not brought to court until the following morning. Duncan J. recognized that an attempt by the police to elicit a statement from a suspect is a valid investigative measure. However, that goal cannot override the requirements of Section 503. A delay cannot be reasonable if its consequence is breaking the law. Knowing that a Justice of the Peace would be unavailable after a certain time, the police were not entitled to delay transporting the accused to court while they continued making efforts to obtain statements (at paragraph 44).

[157] There is no evidence that a Justice of the Peace was available to deal with Mr. Rodgerson after 4:30 p.m., at the very latest, on October 29. In order to comply with Section 503, the police had to take steps to ensure that he was brought to bail court prior to it ending that afternoon. They would have needed to contact the court to make arrangements to bring Mr. Rodgerson into the video cell. They would have had to allow sufficient time for Mr. Rodgerson to address his matter in a meaningful way, which potentially could have included conducting a show cause hearing. As a result, the police could not have waited until just prior to 4:30 p.m. to make the necessary arrangements.

[158] Detective Dingwall candidly acknowledged that the reason Mr. Rodgerson was not brought to bail court was so that that police could continue to interview him. They either gave no thought to, or did not care about the practical implications that desire would have on his ability to be brought before a Justice of the Peace in accordance with Section 503. Applying the contextual analysis mandated by Pino, I conclude that the interviews by Detectives Dingwall and Hoard were conducted in violation of Section 9 of the Charter.

[159] Given the high societal interest in confirming Ms. Young’s condition and location as soon as possible, it was reasonable for the police to attempt an interview with Mr. Rodgerson. Detective Henderson, who was a very experienced homicide officer, did that for 78 minutes beginning at 12:20 p.m. Had the police transferred Mr. Rodgerson back to the holding cell at 1:38 p.m. when that portion of the interview concluded, it is reasonable to infer that he would have appeared before a Justice of the Peace that afternoon. There would have been no violation of Section 503. Therefore, this portion of the videotaped statement was not taken in a manner that infringed Section 9 of the Charter.

[160] In C.K., supra, Duncan J. found that the court must assess the reasonableness of the investigative technique that delays the accused’s appearance in court. Once the right to silence is asserted, the police should be given a reasonable opportunity to persist and persuade the suspect to change his or her mind about cooperating. A delay beyond that point for further interrogation is unreasonable (at paragraph 43).

[161] Detective Henderson had a reasonable opportunity to persuade Mr. Rodgerson to cooperate with the investigation. He was unsuccessful in doing so, despite utilizing all of the interviewing techniques he had gained over the course of his many years of experience. Detective Henderson outlined in considerable detail the evidence the police had implicating Mr. Rodgerson. He told Mr. Rodgerson about Ms. Young’s family and implored him to do the right thing so that they could have peace of mind. Detective Henderson said he had no doubt in his mind that Mr. Rodgerson was responsible for what had happened to Ms. Young. He did everything he could in that interview to extract information from Mr. Rodgerson, with no success.

[162] There was no reason to believe that different police officers would have any better luck. As it turned out, neither Detective Dingwall nor Detective Hoard got any further than Detective Henderson did. Mr. Rodgerson steadfastly maintained his denials and did not give the police any additional information from 2:05 p.m. until 6:50 p.m when he was finally arrested. The police made their best efforts by having Detective Henderson interview Mr. Rodgerson for 78 minutes. Once that attempt was exhausted, it was not reasonable to hold him for further interrogation. The police were obligated at that point to take the necessary steps to bring Mr. Rodgerson before a Justice of the Peace that afternoon. The decision to hold him after 1:38 p.m. for additional questioning resulted in a violation of Section 503 and was, therefore, unlawful.

[163] Having found a violation of Section 9 in relation to the last two portions of Mr. Rodgerson’s videotaped statement, I must consider whether the Applicant has demonstrated that the admission of the evidence would bring the administration of justice into disrepute. The court in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, set out the three factors that must be assessed in making this determination.

[164] The first is the seriousness of the Charter-infringing state conduct. Several cases stand for the proposition that a deliberate decision by the police to investigate an accused person, knowing that will result in non-compliance with Section 503, is a very serious breach of Section 9. In R. v. Mangat, [2006] O.J. No. 2418 (C.A.), the police detained the accused in contravention of Section 503 for the purpose of obtaining a statement from him. While the court found that this conduct did not justify a stay of proceedings, it did state that the exclusion of the statement under Section 24(2) was an appropriate remedy.

[165] In Mendez, supra, Forestell J. characterized the failure to take the accused to court in accordance with Section 503 as being an extremely serious breach of Section 9. The police chose to continue their investigation at the expense of the accused’s statutory right (paragraphs 116 and 117).

[166] Likewise, in Gander, supra, the accused’s statement was excluded pursuant to Section 24(2), as a result of a finding that the Charter infringing conduct was serious in that it arose from a calculated investigatory decision. It was not a technical breach (at paragraph 62). The accused’s statement was also excluded in C.K. because Duncan J. found that the unreasonable delay created the opportunity for the police to gather evidence they otherwise would not have had (at paragraph 48).

[167] In this case, I find that the police deliberately disregarded Mr. Rodgerson’s statutory right to be brought before a Justice of the Peace as soon as possible and, in any event, within 24 hours. They did so in order to further their investigation on the homicide, even after Mr. Rodgerson made it clear during his interview with Detective Henderson that he was not going to be forthcoming with information. I find that the breach was further exacerbated when Detective Hoard did not respond in any meaningful way to Mr. Rodgerson when he voiced concerns about being brought to bail court. The police were aware of their obligation under Section 503 and ignored it. This weighs in favour of exclusion on the first branch of the Grant test.

[168] The second factor to be considered is the impact of the breach on the Charter-protected interests of the accused. The Crown relies on the fact that Mr. Rodgerson never applied for bail on the drug charges and so would not have been released had he been brought to bail court on October 29. In Gander, Thomas J. cautioned against that type of speculation (at paragraph 68). Further, in C.K., Duncan J. noted that the opportunity to secure release is not the only purpose of Section 503. It is also meant to swiftly bring an accused person under the protective umbrella of the court to be dealt with in accordance with the law (at paragraph 48).

[169] In Mr. Rodgerson’s case, taking him to bail court would almost certainly have forced the homicide investigators to arrest him on a charge of murder. It is inconceivable that they would have sent him to bail court where it was possible, if unlikely, that he would be released from custody. Detective Dingwall testified that by the end of Detective Henderson’s interview, he had reasonable grounds to believe that Ms. Young was dead. Mr. Rodgerson was, from his perspective, the only suspect. In those circumstances, Detective Dingwall would have arrested Mr. Rodgerson for murder before arranging for him to go to bail court because that is the only way he could have been certain that he would remain in custody.

[170] The cases of R. v. Ashmore, 2011 BCCA 18, [2011] B.C.J. No. 75 (C.A.), leave to appeal refused [2011] S.C.C.A. No. 280, R. v. Miller, [1987] O.J. No. 989 (C.A.) and R. v. Bhandher, 2012 BCCA 459, [2012] B.C.J. No. 2299 (C.A.), leave to appeal refused [2013] S.C.C.A. No. 5, all suggest that even after a prisoner is remanded the police can continue to interview him. However, it would be speculative to assume that Mr. Rodgerson would have continued to speak with the police after appearing in court, particularly if they had arrested him for murder. A person may cooperate during the investigative stage in the hope that they can persuade the police not to charge them. That same person may see no benefit to speaking once they have been arrested.

[171] As a result, it cannot be said that the impact of the breach on Mr. Rodgerson’s Charter-protected interest was insignificant, notwithstanding the fact that it is unlikely that he would have been granted bail on the drug charges.

[172] The final consideration is society’s interest in an adjudication of the matter on the merits. There is no question that there is an extremely high societal interest in having a murder charge determined on its merits. However, the statement in question was not a confession. The Crown’s case does not depend on the admission of this evidence. In fact, at Mr. Rodgerson’s first trial, the Crown elected not to adduce the statements as part of its case against him. I have concluded that his utterance to Constable French and the interview with Detective Henderson are admissible, so the jury will have some evidence from which they may infer that Mr. Rodgerson lied to the police because he knew that he had unlawfully killed Ms. Young.

[173] Balancing the three Grant factors, I conclude that admitting the second and third portions of Mr. Rodgerson’s videotaped statement would bring the administration of justice into disrepute. Consequently, anything said by him to the police after 1:38 p.m. is excluded from evidence pursuant to Section 24(2) of the Charter.

Conclusion

[174] For the foregoing reasons, Mr. Rodgerson’s utterance to Constable French and his statement to Detective Henderson are found to be voluntary. Those statements were not obtained in a manner that infringed the Charter so they are admissible. Any statements made by Mr. Rodgerson after 1:38 p.m. on October 29 are excluded from evidence, pursuant to Section 24(2) of the Charter.

Justice L. Bird

Released: September 29, 2016