CITATION: R. v. Merritt, 2016 ONSC 7009

COURT FILE NO.: CRIMJ(P) 1459/16

DATE: 20161110

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and -

MELISSA MERRITT and CHRISTOPHER FATTORE

Applicants

COUNSEL: Brian McGuire and Eric Taylor, for the Crown David Berg and Joel Hechter, for Melissa Merritt Peter Zaduk and Jennifer Myers, for Christopher Fattore

HEARD: September 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 26, 27, 28, 29; October 11, 12, 13, 14, 17, 18, 19, 2016 in Kitchener

RULING No. 2: Admissibility of the Pre-Arrest Statements of the Accused

RESTRICTION ON PUBLICATION Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

F. DAWSON J.

[1] Melissa Merritt and Christopher Fattore are charged with first degree murder in relation to the deaths of Melissa Merritt’s former husband, Caleb Harrison, on August 23, 2013. They are also both charged with first degree murder in relation to the earlier death of Caleb Harrison’s mother, Belinda (Bridget) Harrison, on April 21, 2010. Christopher Fattore is further charged with second degree murder in relation to the still earlier death of Caleb Harrison’s father, William (Bill) Harrison, on April 16, 2009. Each of the victims was found dead in the same Mississauga residence.

[2] Bill Harrison’s death was initially considered to be a naturally occurring unexplained death. Bridget Harrison’s death was initially considered to be a suspicious death. However, a police investigation, including a forensic autopsy, eventually concluded that there was no evidence of “foul play”.

[3] When Caleb Harrison was found dead in his bed on August 23, 2013 the coroner was immediately suspicious and it was determined at a forensic autopsy that his death was a homicide. This led to a reinvestigation of the deaths of Bill and Bridget Harrison. On January 28, 2014 the accused were arrested and charged with the murders.

[4] This ruling considers the admissibility of various pre-arrest statements made by each of the accused during the course of the police investigations. The admissibility of Mr. Fattore’s post-arrest statement confessing to the murders of Bridget and Caleb Harrison will be dealt with in a separate ruling.

[5] A blended voir dire was conducted to consider whether the Crown has proven the voluntariness of the statements beyond a reasonable doubt and whether the accused have established on a balance of probabilities that ss. 7 and 10(b) of the Charter have been violated in respect of certain statements and the evidence should be excluded pursuant to s. 24(2) of the Charter.

[6] Crown and defence counsel agree that I may consider all of the evidence adduced on the voir dire in respect of the various statements in relation to the admissibility of any particular statement. I will describe the nature of the voluntariness and Charter issues raised in relation to particular statements in more detail as I deal with each statement in turn.

The Background in More Detail

[7] Melissa Merritt and Caleb Harrison were married in October 2002 and had two children together, M.1 and M.2. They separated in June of 2005. A bitter custody dispute over the children followed. It lasted for years.

[8] Melissa Merritt met Christopher Fattore in February 2006 and they entered into a commonlaw relationship. They eventually had four children together.

[9] In 2008 Caleb Harrison was convicted of impaired driving causing death and related charges and received a jail sentence. He was serving that sentence when his father, Bill Harrison, was found dead in the main floor powder room of the family home in Mississauga on April 16, 2009. Bill was found by his wife, Caleb Harrison’s mother, Bridget. Emergency responders and the police attended.

[10] A non-forensic autopsy led to the conclusion that Bill Harrison had a broken sternum. The pathologist concluded that Bill Harrison either had a heart arrhythmia and fell breaking his sternum or that he fell and broke his sternum which caused a heart arrhythmia, leading to death. Bill Harrison was in his mid-sixties and in good health. His body was cremated. Neither of the accused were interviewed in relation to Bill’s death, which was attributed to natural causes.

[11] On April 15 or 16, 2009 Melissa Merritt and Chris Fattore left Ontario taking the children, M.1 and M.2, with them. This was in close proximity to Bill’s death. They moved initially to Alberta and then to Nova Scotia. Although Bridget Harrison was dealing with her husband’s death, she applied to the court and was granted an order for full custody of M.1 and M.2.

[12] In November 2009 it was discovered that Melissa Merritt and Christopher Fattore were living in Nova Scotia with the children. Melissa Merritt was arrested, returned to Ontario and charged with parental child abduction. The two children were returned to Ontario and resided with Bridget Harrison pursuant to the custody order.

[13] In due course Caleb Harrison was released from jail. In the months and years that followed various court proceedings continued with respect to the children. Melissa Merritt obtained supervised access and then gradually more liberal access to M.1 and M.2. By then she and Chris Fattore had other children of their own.

[14] On April 21, 2010 Bridget Harrison failed to attend to pick up M.1 and M.2 after school as usual. The school allowed M.1, who was old enough to do so, to go home on his own. At approximately 3:30 p.m. he found his grandmother dead at the bottom of the stairs on the main floor of the house. He sought assistance from a neighbour.

[15] Bridget Harrison was found lying on her back with her head and shoulders on the first and second step and her feet and legs on the floor. She had an abrasion on her chin and red marks on her neck. She had “crocs” on her feet. There was no sign of forced entry but the doors were unlocked.

[16] The coroner attending the scene was concerned about the marks on the neck. A forensic autopsy was conducted on April 22, 2010. Bridget Harrison was found to have broken ribs and broken vertebrae in her neck. The police were advised that the autopsy did not reveal a cause of death. However, the pathologists who reviewed the results were concerned about the neck injuries. Dr. Pollanen, the Chief Pathologist of Ontario, told the police it was “worrisome” that the victim had broken vertebrae to both the front and back of her neck. According to police briefing notes Dr. Pollanen also “expressed concerns over the circumstances surrounding” the death of Bill Harrison.

[17] Christopher Fattore and Melissa Merritt, as well as a number of other people, were carefully interviewed during the police investigation into Bridget Harrison’s death. The admissibility of those statements is now challenged. However, the police investigation concluded that Bridget’s death, while unexplained, was not a homicide.

[18] Caleb Harrison continued to live in his parents’ home in Mississauga. M.1 and M.2 lived with him pursuant to court ordered custody. However, as mentioned, Melissa Merritt gradually obtained more access to the children. By August 2013, when Caleb Harrison was killed, M.1 and M.2 were spending extended periods of time with Melissa Merritt and Christopher Fattore. A prolonged period of summer access was scheduled to end on the day Caleb was found dead. The accused were to return M.1 and M.2 to Caleb Harrison later on the day of August 23, 2013.

[19] Melissa Merritt and Christopher Fattore had a number of contacts with the Peel Regional Police (PRP) in the days and weeks following Caleb’s death. The admissibility of some of the resulting statements are challenged on voluntariness and/or Charter grounds.

[20] An extensive police investigation continued. It increasingly focused on the accused. While I am not yet apprised of all of the details, numerous production orders and search warrants were obtained. The police also obtained judicial authorizations to intercept the private communications of both accused. Wiretaps, room probes and computer key logging software were employed by the police in their investigation of the accused.

[21] Following Caleb’s death Melissa Merritt obtained custody of M.1 and M.2. The accused and all of the children eventually moved to a rural property in Nova Scotia. The police continued their electronic surveillance of the accused in Nova Scotia. The police employed various techniques to “stimulate” conversations between the accused about the homicide. Emails were sent to the accused and undercover officers posed as a private investigator and as a family friend to provide the accused with “information” about the police investigation.

[22] A team of PRP officers travelled to Nova Scotia and arrested the accused on the morning of January 28, 2014. They were assisted by the Royal Canadian Mounted Police (RCMP) and the Halifax Regional Police (HRP). All six children living in the home were apprehended by the Children’s Aid Society (CAS). The accused were taken to the HRP building for interviews. Both were extensively interviewed. The Crown tenders an audio and video recorded statement by Mr. Fattore, which is approximately 15 hours in length. In that statement he eventually confessed to murdering Caleb and Bridget Harrison. The admissibility of that statement is challenged on voluntariness and Charter grounds.

[23] The Crown does not seek to introduce any post-arrest statement from Melissa Merritt.

[24] Following their arrests the two accused were eventually placed in a room together at the Halifax airport prior to their transport back to Ontario. This was orchestrated by the police who had planted listening devices in the room. The Crown relies on the interception obtained at that time and on several pre-arrest intercepted communications between the accused to assist in establishing voluntariness of Christopher Fattore’s post-arrest statement.

[25] There is a considerable amount of additional evidence, some of which I will refer to below. Over 15 days of evidence and over five days of argument were heard on the voir dire. While some evidence was called on behalf of the accused, neither accused testified on the voir dire.

The Issues in Overview

[26] The issues that arise with respect to the pre-arrest statements focus on voluntariness. With respect to most of the statements, whether in relation to Bridget or Caleb Harrison’s death, the accused argue that they met the definition of a “suspect” and should, therefore, have been cautioned that they need not speak to the police and that anything they did say could be used against them. I will refer to this as a “primary caution”.

[27] There are two distinct submissions made in relation to two of Ms. Merritt’s statements which extend beyond the “caution issue”. One of these seeks to extend s. 7 Charter protection of the right to remain silent to persons not under detention.

[28] The issues related to the admissibility of Mr. Fattore’s extensive post-arrest interview are more varied and are based on both voluntariness and Charter issues, including the right to counsel pursuant to s. 10(b).

Method of Proceeding

[29] I will deal with the police investigation in chronological order; deciding the admissibility of the statements of each accused in relation to the death of Bridget Harrison first. I will then consider the pre-arrest statements in relation to the investigation of Caleb Harrison’s death. Due to developments subsequent to the conclusion of this pretrial application it has become important to release my decision with respect to the admissibility of the pre-arrest statements as soon as possible so that another pretrial application can proceed in an orderly fashion. Therefore, I will deal with the admissibility of Mr. Fattore’s post-arrest statement in a separate ruling to be released later.

[30] As there are certain common legal issues that arise in relation to all of the pre-arrest statements I will first briefly describe the general legal principles that are applicable. I will add to these legal principles during the analysis of the admissibility of individual statements.

The Applicable Legal Principles – An Overview

[31] I will start with the significance and timing of a caution as that is the focus of many of the submissions in relation to the pre-arrest statements.

[32] The first point of importance is that the failure to provide a primary caution is not necessarily fatal to admissibility. There is no hard and fast rule that a primary caution is required before a statement will be admissible. The presence or absence of a primary caution is, however, one factor to be considered on the voluntariness issue and it may be an important factor, depending on the circumstances of a particular case: R. v. Boudreau, 1949 CanLII 26 (SCC), [1949] S.C.R. 262. This holds true even when an accused may be considered a “suspect” at the time of the statement: R. v. E.B., 2011 ONCA 194, 269 C.C.C. (3d) 227, at paras. 86-88.

[33] Despite the foregoing, it has generally been thought to be good practice for the police to provide a primary caution at the point where a person being interviewed has become a suspect. This makes sense because in recent years voluntariness, the common law right to remain silent and the right to counsel have been rationalized and brought together to form a semi-cohesive package of rights and protections focused on an accused’s right to make a meaningful choice whether to speak to the police or not. See generally Sidney N. Lederman, Alan W. Bryant and Michelle K. Fuerst, The Law of Evidence in Canada, 4th ed. (Markham, Ont: LexisNexis Canada, 2014), at pp. 446-53.

[34] Making a meaningful choice involves the knowledge of one’s rights. Constitutional protections exist once a person is detained. At that point s. 10(b) requires that rights to counsel and an opportunity to consult counsel, if desired by the detainee, be afforded. Once contact with counsel has been facilitated we assume that the detainee is aware of their rights. The constitutional protection of the right to remain silent provided by s. 7 of the Charter also kicks in at the point of detention: R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64. It is protected by the right to counsel provided for in s. 10(b). However, prior to detention constitutional protections do not exist and the voluntariness rule, which has evolved in recent years in a manner consistent with developing constitutional protections, is the primary means of protecting an accused against the use of statements obtained from them by the police in contravention of the common law right to remain silent: R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405. That right is the right to choose whether to speak to the police.

[35] The issue then arises as to when or in what circumstances a person being spoken to by the police should receive a primary caution, while still acknowledging the current undoubted state of the law that the presence or absence of a primary caution is only one factor to be considered in the voluntariness analysis. A great deal has been written about this in this court in recent years, most but not all of it, focused on how to determine when a person becomes a suspect: R. v. Morrisson, [2000] O.J. No. 5733 (S.C.J.), at para. 50; R. v. Worrall, [2002] O.J. No. 2711 (S.C.J.), at para. 104; R. v. J.R., [2003] O.J. No. 718 (S.C.J.); R. v. Dalzell, [2003] O.J. No. 4901 (S.C.J.), at paras. 63-75; R. v. Papadopoulos, [2006] O.J. No. 5423 (S.C.J.), at paras. 28-32; R. v. Smyth, [2006] O.J. No. 5527, at paras. 81-84; R. v. Buchanan, 2006 CanLII 6200 (ON SC), [2006] O.J. No. 814 (S.C.J.); R. v. Boothe-Rowe, 2014 ONSC 571, at paras. 30-32; R. v. Belbin, 2015 ONSC 5346, paras. 101-111, 120-122; R. v. Millard, 2015 ONSC 6704, [2015] O.J. No. 7205, at paras. 31-43.

[36] While these cases may still be helpful, I conclude they have been largely overtaken by the following clarifying comments of Charron J. in Singh, at paras. 32-33:

32 Although the confessions rule applies whether or not the suspect is in detention, the common law recognized, also long before the advent of the Charter, that the suspect’s situation is much different after detention. (As we shall see, the residual protection afforded to the right to silence under s. 7 of the Charter is only triggered upon detention.) After detention, the state authorities are in control and the detainee, who cannot simply walk away, is in a more vulnerable position. There is a greater risk of abuse of power by the police. The fact of detention alone can have a significant impact on the suspect and cause him or her to feel compelled to give a statement. The importance of reaffirming the individual’s right to choose whether to speak to the authorities after he or she is detained is reflected in the jurisprudence concerning the timing of the police caution. Ren Marin, in his text Admissibility of Statements (9th ed. (loose-leaf)), at pp. 2-24.2 and 2-24.3, provides a useful yardstick for the police on when they should caution a suspect:

The warning should be given when there are reasonable grounds to suspect that the person being interviewed has committed an offence. An easy yardstick to determine when the warning should be given is for a police officer to consider the question of what he or she would do if the person attempted to leave the questioning room or leave the presence of the officer where a communication or exchange is taking place. If the answer is arrest (or detain) the person, then the warning should be given.

33 These words of advice are sound. Even if the suspect has not formally been arrested and is not obviously under detention, police officers are well advised to give the police caution in the circumstances described by Marin. Of course, with the advent of the Charter, the s. 10 right to counsel is triggered upon arrest or detention. The right to counsel has both an informational and an implementational component. It seeks to ensure that persons who become subject to the coercive power of the state will know about their right to counsel and will be given the opportunity to exercise it so they can make an informed choice whether to participate in the investigation against them. Therefore, if the detainee has exercised his s. 10 Charter right to counsel, he will presumably have been informed of his right to remain silent, and the overall significance of the caution may be somewhat diminished. Where the suspect has not consulted with counsel, however, the police caution becomes all the more important as a factor in answering the ultimate question of voluntariness.[Emphasis added.]

[37] The portion of the above quote which I have placed in italics now sets the test for when a person becomes a suspect and should be given a primary caution. That should be done when there are “reasonable grounds to suspect” that the person being spoken to by the police has committed a crime. This is a test that has also recently been applied in other contexts, such as investigative detention and the police use of “sniffer dogs”: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45; R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456.

[38] In Kang-Brown, at para. 75, Binnie J., on behalf of himself and McLachlin C.J.C. in a concurring minority opinion, wrote: “A ‘reasonable’ suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.” Justice Binnie went on to indicate that to be reasonable a suspicion must be supported by objectively ascertainable facts. He then, at para. 76, made approving reference to R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 12 O.R. (3d) 182 (C.A.). There Doherty J.A. spoke, at p. 202, of requiring “a constellation of objectively discernible facts” to give rise to reasonable grounds to suspect. Binnie J. noted that Doherty J.A.’s description of “articulable cause” in Simpson had been treated as the equivalent of “reasonable suspicion” in R. v. Jacques, 1996 CanLII 174 (SCC), [1996] 3 S.C.R. 312, at paras. 24 and 52. He adopted this as the test to be applied in Kang-Brown.

[39] In accordance with this authority I conclude that before someone can be considered a suspect for the purpose of determining whether a primary caution should be given there must be a constellation of objectively discernible facts which, returning to what was said by Charron J. in Singh at paras. 31-32, gives rise to a reasonable suspicion that the person being interviewed has committed an offence. I take this test to be different than a mere subjective suspicion or investigative hunch. It accords with the concept found in various versions of the Major Case Manual used by the police in Ontario, that there must be some evidence which tends to demonstrate culpability before the police consider someone to be a suspect.

[40] Before moving on I wish to add that I included everything said by Charron J. at paras. 31-32 in the block quote above because the distinctions made by Charron J. in that passage between the circumstances of a person in custody and someone who is not detained are important in the context of the current discussion. The voluntariness rule applies in both circumstances but does not make a primary caution an absolute requirement. The pre-arrest statements in this case are being dealt with on the basis that the accused were not detained at the time they made those statements.[^1]

[41] The fact that the voluntariness rule applies prior to as well as after detention and that additional protections, such as the s. 10(b) right to counsel, apply after detention, may offer some rationale for the presence or absence of a caution being only a factor in the voluntariness assessment. The confessions rule requires that the full context surrounding the making of a statement must be considered and therefore the significance of the presence or absence of a caution can be assessed on an individual case basis.

[42] The Supreme Court of Canada comprehensively restated the voluntariness rule in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3. The burden is on the Crown to prove voluntariness beyond a reasonable doubt. One of the main objectives of the rule is the prevention of false confessions.

[43] Voluntariness is defined broadly and represents a complex of values: Oickle, at paras. 70-74. The focus is not simply on the presence or absence of inducements but on determining whether there is a reasonable doubt that the statement was in fact improperly induced. The court must endeavour to come to an understanding of what motivated an accused to make a particular statement: Oickle, at para. 71. A full contextual analysis of all the surrounding circumstances is required. This includes, but extends beyond, a consideration of whether the statement was the result of fear of prejudice or hope of advantage held out by a person in authority. The presence of any oppressive circumstances, as described in Oickle at paras. 27, 58-61, and 87 must also be taken into account.

[44] A determination of voluntariness also requires a finding that an accused had an operating mind at the time the statement was made: Oickle, at paras. 63-64. However, as held in R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914, at p. 936, [1994] S.C.J. No. 69, at para. 37, an operating mind “does not imply a higher degree of awareness than of what the accused is saying and that he is saying it to a police officer who can use it to his detriment.”

[45] One of the themes that runs throughout modern cases on voluntariness as well as cases dealing with the right to remain silent, both at common law and as protected by the Charter, is that a balance must be struck between the right of an accused not to speak to the police and the right and duty of the authorities to investigate crime: Oickle, at para. 57; Hebert, at paras. 62-64. The police are entitled to question people and may offer inducements in order to get a subject to talk: Oickle, at para. 57; Hebert, at para. 53. The right to remain silent does not mean that an accused has the right not to be spoken to: Singh, at para. 28. A statement will only be rendered involuntary where there is a reasonable doubt about whether the will of the accused was overborne by threats, improper inducements, oppression or a combination of circumstances arising from the context in which the statement was made. Apart from the question of whether the accused has an operating mind “the focus is on the conduct of the police and its effect on the suspect’s ability to exercise his or her free will. The test is an objective one”: Singh, para. 36.

[46] The presence or absence of a quid pro quo may be an important factor in determining whether a statement is voluntary: Oickle, at paras. 56, 57, 78 and 80. However, in R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at paras. 15 and 19, the court clarified that “while a quid pro quo is an important factor in establishing the existence of a threat or promise, it is the strength of the inducement, having regard to the particular individual and his or her circumstances, that is to be considered in the overall contextual analysis into the voluntariness of the accused’s statements”.

[47] Police trickery is a separate inquiry under the voluntariness rule as restated in Oickle. Police tricks may render a statement involuntary if they are dirty tricks of the sort that would shock the community: Oickle, at paras. 65-67. Police trickery which falls below this threshold remains a general factor to be considered in the voluntariness analysis: Oickle, at paras. 91 and 124.

[48] As I mentioned at the outset, there has been a convergence of the confessions rule and various Charter protections. It is now well understood that where a detainee is interviewed by someone known by them to be a person in authority a finding of voluntariness will be determinative of the detainee’s right to remain silent as protected by s. 7 of the Charter: Singh, at paras. 8 and 25. This consideration only applies to Mr. Fattore’s post-arrest statement, subject to the outcome of Ms. Merritt’s submission that this s. 7 protection should be extended in the case of one of her statements.

[49] Inducements made in relation to a third party is an issue that arises in relation to Mr. Fattore’s post-arrest statement. I will deal with that in my separate ruling on the admissibility of that statement.

[50] It has been said that the “threshold for a finding of involuntariness appears to be high: see The Law of Evidence in Canada, 4th ed., at p. 455. In R. v. Brown, 2015 ONSC 3305, at para. 86, my colleague Fairburn J. described the voluntariness rule as “strong” but noted that in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 93, Binnie J. said that the voluntariness rule as set out in Oickle, is “rightly seen as setting a high barrier to exclusion”. Binnie J. was writing in dissent, but not on this point.

The Admissibility of Statements Relating to Bridget Harrison’s Death

[51] Numerous people were interviewed in relation to Bridget Harrison’s sudden death. It must be remembered that the police had no evidence that a crime had been committed. While Dr. Pollanen and other pathologists involved expressed concern, in the end the death was considered to be unexplained. It was not considered to be the result of a criminal act until it was re-investigated following Caleb Harrison’s death three years later.

[52] Christopher Fattore was interviewed on April 29, 2010. Melissa Merritt was interviewed on May 5, 2010. Both interviews were audio and video recorded. They were conducted at 11 Division of the PRP.

[53] S/Sgt. Greg Amaroso testified that he was an acting detective in 11 Division when on April 22, 2010 he was assigned to lead the investigation of the sudden death of Bridget Harrison. He did that for about one week before being assigned to unrelated duties. He was briefed on the family history. He explained that when there is a sudden death the police are assisting a coroner’s investigation. The police are trying to determine the cause of death. The purpose of the investigation was to determine whether the death was accidental or possibly a homicide. The police were looking into whether the death could be the result of a fall down the stairs. Bridget Harrison’s head was resting on the stairs and she had broken ribs and broken vertebrae in her neck. As she was wearing crocs on her feet there was a concern she may have slipped on the stairs.

[54] D/Sgt. Amaroso said he ordered a canvass of the neighbourhood and directed investigators to follow various leads and to interview various people to try to find out what occurred. He testified that the police had to take care to do a proper investigation. If the death was accidental they needed to be able to explain it. If it turned out something nefarious had happened they had to have been thorough.

[55] Amaroso said he wanted officers to speak to Caleb Harrison, to a downstairs tenant and to a department store delivery man, as well as to Melissa Merritt and Christopher Fattore. He did not consider anyone to be a suspect as he had no information a crime had been committed. He explained the contact he had with the coroner and pathologists and testified they could not say what caused the death. Although they had concerns, there was nothing to indicate it was a homicide.

[56] D/Sgt. Amaroso asked Caleb Harrison to take a polygraph test. The police had no reason to think Caleb was involved in his mother’s death but Amaroso emphasized the police did not know what had happened and were trying to find out. He said he wanted to “stay mainstream”, collect evidence and let the evidence guide them. He said that at one point he thought of polygraphing everyone, including the tenant, the delivery person and Ms. Merritt and Mr. Fattore.

[57] D/Sgt. Amaroso also described a number of contacts he had with the CAS or tasks he issued that involved the CAS. As these have particular relevance to the admissibility of Ms. Merritt’s May 5, 2010 statement I will defer comment on them until I deal specifically with that issue.

[58] In cross-examination D/Sgt. Amaroso gave detailed evidence about why he did not consider anyone to be a suspect. He explained that while Dr. Pollanen said there were “worrisome” aspects to the post-mortem findings, Dr. Pollanen also said he had never seen such injuries in a homicide and he could not say that the injuries were not possible from a fall. While there was a concern about asphyxia, the hyoid bone in the front of the neck was not broken.

Christopher Fattore’s Statement of April 29, 2010

The Evidence

[59] Csts. Andrew Cooper and John Raposo (now Sgt. Raposo) were part of the investigative team. They were tasked with making certain inquiries regarding the CAS which I will refer to later. On April 29, 2010 they were tasked with obtaining a statement from Christopher Fattore. That morning they attended an address on Passway Road in Mississauga where Ms. Merritt and Mr. Fattore operated a daycare. Upon speaking to Mr. Fattore he agreed to drive in his own vehicle to 11 Division to provide a statement.

[60] Mr. Fattore was interviewed by Cst. Cooper on video at 11 Division from 10:39 a.m. to 11:59 a.m. He was not cautioned or provided with rights to counsel. Cst. Cooper said he did not do so as Mr. Fattore was regarded as a witness. There were no suspects to his knowledge because the police were not aware that a crime had been committed. Cst. Cooper conducted a very thorough and searching interview to document all of Mr. Fattore’s movements around the time of Bridget Harrison’s death. He asked Mr. Fattore whether he was right or left handed and asked many questions, which, if the case turned out to be a homicide, might have been helpful. Cst. Cooper explained that he was simply doing what police do when investigating. He said the death was suspicious and the police were trying to determine whether it was a homicide, not investigate someone for committing a homicide.

[61] Prior to the interview Cst. Cooper said he had been in touch with the RCMP in Deep Water, Nova Scotia regarding a warrant they may have held for Mr. Fattore’s arrest. Mr. Fattore was not arrested during the interview. There is no suggestion by anyone that he was detained.

[62] Neither officers Cooper nor Raposo had any notes of the conversation they had at the Passway Road residence when they asked Mr. Fattore if he would agree to an interview. Both said it was brief and that Mr. Fattore readily agreed to attend for an interview. There is no evidence before me that anything was said at that time, or any other time on April 29, 2010, that could be considered any form of threat or improper inducement.

[63] Sgt. Raposo also gave evidence on the voir dire. He said that on April 29, 2010 he was tasked to attend at Melissa Merritt’s residence and to arrange an interview and a polygraph. He was also asked to arrange an interview with Mr. Fattore. He could not recall if he was to ask Mr. Fattore for a polygraph as well.

[64] Sgt. Raposo monitored Cst. Cooper’s interview of Mr. Fattore. Near the end of the interview the video shows there was a knock on the door. Cst. Cooper left briefly. When he returned he asked Mr. Fattore if he would be willing to take a polygraph test. Mr. Fattore declined on the basis that he had been told by Melissa Merritt’s father, a former Toronto Police Service homicide officer, that they were unreliable.

[65] Cst. Cooper said he asked for a polygraph to assist in ascertaining whether Mr. Fattore’s statements were truthful. Cst. Cooper said that when he left the room he spoke to Sgt. Raposo. Raposo could not recall having any conversation with Cooper during the breaks and did not recall asking Cooper to request a polygraph, although he acknowledged it was possible as he was trying to recall events that occurred six years ago.

[66] Sgt. Raposo testified that he did not regard Mr. Fattore or Ms. Merritt as suspects. The information available in the case did not warrant that and no other member of the team had suggested it. He viewed them as associates of the deceased in a sudden or suspicious death case.

[67] In examination-in-chief Sgt. Raposo said he was told this was an “unexplained” death investigation. The coroner could not determine the actual cause of death. He had been involved in over 10 such investigations. Typically the Criminal Investigation Bureau (CIB) handles such investigations with the coroner and pathologist. If it is found to be a homicide it is then referred to the Homicide Bureau. Raposo said the police focus was on trying to determine a cause of death.

[68] D/Sgt. Amaroso said that the Homicide Bureau was not involved in the investigation, although they were being kept apprised of the investigation.

Analysis

[69] As previously indicated, the thrust of the accused’s submission is that he was a suspect and should have been cautioned. I reject this submission. Based on a consideration and comparison of all the evidence, I accept the testimony of D/Sgt. Amaroso, Cst. Cooper and Sgt. Raposo that they did not regard either Mr. Fattore or Ms. Merritt to be suspects. I note that Ms. Merritt does not raise this concern in relation to her May 5, 2010 statement.

[70] More significantly, I conclude that reasonable grounds to suspect that either accused had committed a crime did not exist. While the death was suspicious the police and forensic pathologists never did conclude that it was the result of a homicide. That may not in itself be determinative but it is a very significant factor to be taken into account.

[71] Ms. Myers on behalf of Mr. Fattore advanced the following factors during her cross-examination of Cst. Cooper as pointing to Mr. Fattore as a suspect:

1. Bill Harrison’s death in the same house one year before was unexplained;
2. Melissa Merritt was charged with abduction of the children and was due to go to court around the time of Bridget’s death;
3. The history of a custody dispute with Bridget Harrison obtaining custody while Caleb Harrison was in jail;
4. Melissa Merritt had been charged with breach of a bail order on the abduction charge by attending at the Harrison home;
5. Melissa Merritt and Christopher Fattore had a blue minivan that had reportedly been seen near the children’s school;
6. Dr. Pollanen described Bridget Harrison’s injuries as “worrisome” and noted that there were injuries to both the front and back of her neck;
7. Bridget Harrison exhibited petechial hemorrhages.

[72] Cst. Cooper agreed that he was generally aware of all of this information. I am satisfied that D/Sgt. Amaroso was as well. I note, however, that in the absence of evidence supporting the conclusion that this was a homicide it is difficult to conclude from the whole of the evidence that there was a reasonable basis for suspicion that Christopher Fattore was implicated in such a crime. I accept D/Sgt. Amaroso’s evidence that he understood Dr. Pollanen to have said that while the injuries were worrisome he had never seen such injuries in a homicide and that the injuries were possibly from a fall.

[73] The factors counsel pointed to, as well as other similar factors, caused the police to take care in investigating the actions and whereabouts of Mr. Fattore and Ms. Merritt at the time of the death, just as it was advisable for the police to take similar steps in relation to Caleb Harrison, the tenant who lived in the house and the department store delivery person. But I conclude that an assessment of all of the evidence does not give rise to a reasonable suspicion they were involved in a crime.

[74] Counsel for Mr. Fattore placed considerable emphasis on the very detailed nature of the questions asked of Mr. Fattore. Counsel refers to the fact that the police were obtaining information about phone numbers and methods of payment for purchases made by Mr. Fattore at relevant times so that they could seek search warrants or production orders to verify his account of his whereabouts. Counsel mentions that D/Sgt. Amaroso tasked an officer to obtain security video from a Sobeys store because Mr. Fattore said he attended that store twice on the day Bridget Harrison died. Counsel also places considerable emphasis on the fact that D/Sgt. Amaroso wanted a polygraph of Mr. Fattore.

[75] In my respectful view this after the fact analysis made with the benefit of hindsight adds little to the submission. The police were trying to determine what happened. They conducted a thorough investigation. However, it was not focused on Ms. Merritt or Mr. Fattore. Others who had some form of relationship or connection to the deceased were similarly investigated to obtain their accounts of where they were at the likely time of death. Caleb Harrison was also asked to take a polygraph. There was no focus on Mr. Fattore. There was no determination that a crime had been committed.

[76] I note that in Worrall, at para. 102, Watt J. (as he then was) held that investigators had no reason to caution Mr. Worrall at a time when they had no evidence that a crime had been committed.

[77] In R. v. Peterson, 2013 MBCA 104, 304 C.C.C. (3d) 164, at para. 52, the court held: “The fact that the police asked pointed questions about the crime does not necessarily turn a person of interest into a suspect.” This statement was cited with apparent approval by the Court of Appeal for Ontario in a case where a police officer believed he was speaking to a witness, not a suspect: R. v. Wong, 2015 ONCA 657, 127 O.R. (3d) 321, at para. 37.

[78] I also note that in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 38, the court commented that the police, “unbeknownst to them at that point in time, may find themselves asking questions of a person who is implicated in the occurrence and, consequently, is at risk of self-incrimination. This does not preclude the police from continuing to question the person in the pursuit of their investigation.”

[79] While the circumstances and contexts of each of these cases is slightly different, the general point being made is applicable. Hindsight cannot be allowed to influence the determination of when someone has become a suspect. Police are entitled and required to ask probing questions during the course of an investigation. Doing so does not render a person a suspect in the absence of reasonable grounds to suspect that the person being interviewed is implicated in the commission of an offence. That objective standard is not met in this instance. Consequently, the police had no reason to caution Mr. Fattore.

[80] However, even if they should have cautioned him I would still conclude that this statement was voluntary. Based on my review of all of the evidence I am satisfied that Mr. Fattore’s statement of April 29, 2010 has been proven voluntary beyond a reasonable doubt. There is no hint of any promise, threat or improper inducement. There was no atmosphere of oppression. The interview was conducted in a polite and non-confrontational manner. Mr. Fattore attended of his own accord. He was never detained. He left at the end of the interview.

[81] The April 29, 2010 statement of Christopher Fattore is admissible.

Melissa Merritt’s Statement of May 5, 2010

The Evidence

[82] According to Sgt. Raposo he and Cst. Cooper attended at the Passway Road home where Melissa Merritt operated a daycare at 2:01 p.m. on April 29, 2010 to ask her if she would agree to an interview. Sgt. Raposo testified that she said her criminal lawyer told her not to give a statement. I observe that at that time she was still facing child abduction charges. Sgt. Raposo told her that she was not a suspect and that it would assist the police if she would agree to an interview. She said she would consider it and mentioned that she had to attend 11 Division on Saturday to report as required by her bail conditions. Sgt. Raposo testified that he passed that information on.

[83] D/Sgt. Amaroso testified that on May 1, 2010 at 6:30 p.m. Melissa Merritt came to the front desk at 11 Division to report as required by her bail. She was with her father Michael Merritt, a retired Toronto police officer. Amaroso was alerted to their presence and went to speak to them. He asked Ms. Merritt if she would agree to an interview. She said her lawyer told her she did not have to. Amaroso said he confirmed that was correct but told her that he wanted to do an interview as part of due diligence. She said she would discuss it further with her lawyer.

[84] D/Sgt. Amaroso testified that Michael Merritt was angry. Michael Merritt said that Melissa Merritt’s supervised visits with her children had been cancelled by the CAS. Amaroso testified that he told the Merritts that the decision to suspend access was made by the CAS and that the police had nothing to do with it. Mr. Merritt asked him if he had spoken to the CAS and he said he had. D/Sgt. Amaroso testified that due to Michael Merritt’s attitude he advised him that if Mr. Merritt wanted to document their conversation they should do so on video. Mr. Merritt declined. Mr. Merritt demanded to know if it was a homicide investigation. Amaroso said he would not discuss the investigation with him.

[85] In cross-examination D/Sgt. Amaroso recalled that he also told Mr. Merritt that he supported the CAS decision, while stressing that it was a decision made by the CAS. He added that everyone was looking after the children. Melissa Merritt was present at that time.

[86] Cst. Jessica Innes testified that D/Sgt. Amaroso tasked her to interview Melissa Merritt. She called Ms. Merritt and left a message. On May 4, 2010 Ms. Merritt called Cst. Innes back and said she would attend for an interview on May 5, 2016.

[87] The May 5, 2010 interview commenced at 9:55 a.m. and continued to 11:40 a.m. The interview was video and audio recorded. Overall, I would characterize the interview as being like a chat between friends. While the officer asked questions, Ms. Merritt did most of the talking. The interview was not confrontational in any way. It was very casual in nature and friendly throughout. There was some joking around or light hearted banter.

[88] That said, at the very beginning of the interview Melissa Merritt read out a statement she said had been prepared by her lawyer. That statement was as follows:

You told me that you’re investigating the accidental death of Bridget Harrison. I understand I’m not a suspect because you have told me so. If I am a suspect, I wish to stop this statement right now and speak to my lawyer. I’m here to make a statement for the following reasons. I’ve been told that if I do not make a statement the police officers will come to-, will, sorry, will continue to come to my house until I do. I have spoken to the Access Centre; I have supervised access with my children.

And the police, and I’ve been advised that the police have spoken to them and therefore made my access to my children very difficult and so far its been stopped. You told me, I’ve been told by the police if I didn’t make a statement, you would, the police would speak to my Crown or the Crown in charge of my previous charges.

And unless my lawyer tells me to do so, I will not sign any document nor take a polygraph. If you wish to discuss this with my lawyer his name is David Berg and his office number is 4-1-6 5-1-6 8-3-7-7.

[89] Cst. Innes seemed surprised by this and asked what was going on at the Access Centre. Ms. Merritt said she had been told by the Access Centre that the police contacted them after Bridget Harrison’s death. She was supposed to have access every Saturday. She was told that the police said to stop her access. She then added that her access had been suspended until “after May 13”. She later explained that a meeting with the CAS on May 13 would determine whether her access would be reinstated.

[90] Cst. Innes did not in any way promote the idea that if Ms. Merritt cooperated by giving a statement the police would intervene to assist in restoring access. Nor did she in any way suggest the opposite. She simply asked a few more questions about what had occurred. In response Ms. Merritt said that she and her family lawyer knew access had been stopped and added, “the problem we have is that no one is telling me why its being stopped.” Ms. Merritt repeated that she had been told that the police contacted the centre and told them to stop her access. She did not say who told her this.

[91] No evidence was called on the voir dire to contradict the testimony of D/Sgt. Amaroso that the police had nothing to do with the decision by the CAS to stop Ms. Merritt’s access to her children. I will refer to that evidence momentarily. I also note the rather obvious point that anything said by Ms. Merritt in her May 5, 2010 statement about being told the police requested that her access to her children be cut off is hearsay which cannot be used to prove the truth of that proposition.

[92] In concluding submissions Mr. Berg, on behalf of Ms. Merritt, contends that I should have a reasonable about the voluntariness of the statement on the basis that the only reason Ms. Merritt agreed to an interview was because the CAS had cut off her access to her children at the behest of the police. Although other reasons were also advanced by Ms. Merritt in the prepared statement she read at the beginning of her interview, counsel did not make submissions based upon them. Before dealing further with this submission I will return to the evidence regarding police contact with the CAS.

[93] The evidence concerning contact between the police and the CAS does not fit together perfectly. Certain questions that may have clarified matters were not asked. As previously mentioned, no one called any witnesses from the CAS or the Access Centre referred to in the statement read by Ms. Merritt at the beginning of her May 5, 2010 interview. The evidence also does not speak directly to the relationship between the CAS and the Access Centre.

[94] D/Sgt. Amaroso said near the beginning of his cross-examination by Mr. Berg that prior to April 28, 2010 he had tasked someone to notify the CAS that M.1 had found his grandmother dead. He had no note of who that was. He said it would be noted on the task list from the file but that was not available in court.

[95] D/Sgt. Amaroso said in chief that it was police policy to notify the CAS when a child is involved in an incident under investigation. He pointed out that M.1 may need counselling or support. Amaroso also pointed out that Bridget Harrison had legal custody of M.1 and she was now deceased. Both circumstances required the police to notify the CAS. Amaroso said he assigned this task before he spoke with Susan Martin of the CAS. I will refer to that contact in a moment. I infer that whomever he tasked, it was not Cooper or Raposo as he had a specific recollection that he also tasked them to contact the CAS.

[96] D/Sgt. Amaroso testified in examination-in-chief that on April 27, 2010 he tasked Cst. Cooper and Sgt. Raposo to contact the CAS. He wanted to know whether the CAS was investigating Ms. Merritt and Mr. Fattore. He testified in cross-examination that if Ms. Merritt was a good mother the police should know that. He understood that Cooper and Raposo contacted Marilyn Vanderkool of the CAS and that the CAS was already aware of the police investigation. I observe this may have been due to his earlier tasking. He added that if the police did not notify the CAS of a police investigation where children were involved and something happened, the police would be negligent.

[97] Amaroso also said that he had learned Ms. Merritt, who was facing child abduction charges, was running a daycare. He wanted the CAS advised of that. If the CAS had no issue with that then the police had none.

[98] Cst. Raposo testified that on August 27, 2010 he was tasked to find out if Ms. Merritt had a valid licence to operate a daycare centre. He assumed there was a concern related to the child abduction charges and to ensure that everything was above board. Sgt. Raposo testified that he made a number of inquiries. The CAS told him daycares were regulated by the Ministry. The City of Mississauga told him no licence was required. The Region of Peel said the same thing. The Ministry of Community and Social Services advised that regulations only dealt with daycares where there were more than five children under a certain age. On April 27, 2010 he said he spoke to Ms. Merritt and learned she was only caring for one young child other than her own. Therefore, she was in compliance. There is no evidence that Sgt. Raposo or Cst. Cooper said anything to the CAS about cutting off Ms. Merritt’s access to her children.

[99] D/Sgt. Amaroso said that on April 27, 2010 a woman from York CAS called to tell him that the CAS had concerns. The evidence does not clearly reveal how York CAS was involved. She told Amaroso that during a supervised access visit between Ms. Merritt and the children a CAS worker saw Mr. Fattore’s van parked down the street. She said this was a “breach of the rules”, as Mr. Fattore was not to be near the visit. This caused concerns for the CAS. Again, it must be remembered Ms. Merritt faced charges for abducting the children. Mr. Fattore had not been charged but he had been with Ms. Merritt at the time.

[100] Possibly as a result of this information, D/Sgt Amaroso left a message for Susan Martin of the CAS. He did not know where he got her name from. She called him back on August 28, 2010 and they discussed the situation. According to Amaroso, Ms. Martin repeated that the CAS was concerned about the presence of Mr. Fattore’s van due to the abduction charge. She told Amaroso the CAS was in the process of revoking visitation until there was a safer plan. Amaroso made no mention in his evidence about whether he was told of the May 13 meeting between Ms. Merritt and the CAS that Ms. Merritt told Cst. Innes about during the May 5 interview.

[101] D/Sgt. Amaroso testified that on April 29, 2010 Susan Martin called him to advise him the CAS had decided to suspend Ms. Merritt’s supervised visits indefinitely. D/Sgt. Amaroso testified that at no time did he give the CAS information about whether Ms. Merritt and Mr. Fattore were cooperating with the police investigation. At no time did he or any other police officer, to his knowledge, say anything to the CAS about using Ms. Merritt’s supervised access as a threat or inducement in relation to her giving an interview to the police. He stressed that the police and the CAS make their decisions independently and did so on this occasion. He said the police did not seek or have any input into the CAS decision. D/Sgt. Amaroso’s evidence stands uncontradicted on these important points.

Analysis

[102] I return now to the submission on behalf of Ms. Merritt to the effect that the Crown has failed to prove the voluntariness of her statement of May 5, 2010 beyond a reasonable doubt. In essence, Mr. Berg submits that D/Sgt. Amaroso is not a credible witness. He points out that Amaroso’s comments about due diligence and about concern for M.1 as a reason why the police contacted the CAS in the first place are not in his notes. That was not a point of significant cross-examination. Mr. Berg also submits that Sgt. Raposo said he was tasked on April 27 to contact the CAS and that it is not in D/Sgt. Amaroso’s notes that he tasked Raposo to do so. Again, this was not a major point in cross-examination. I also note that, as previously mentioned, the evidence supports an inference that someone other than Cooper and Raposo was also tasked to contact the CAS. Amaroso said he did task Cooper and Raposo to contact the CAS. It is apparent that tasks were kept track of in separate lists in the case file.

[103] Mr. Berg also questions why Raposo spoke to the CAS about abduction in connection with his task to speak about the “circumstances of the incident” and points out that Raposo did not say anything to the CAS about M.1 perhaps needing counselling. Mr. Berg submits that “ultimately” the evidence of D/Sgt. Amaroso makes no sense viewed in the light of Sgt. Raposo’s evidence and that this gives rise to a reasonable doubt in relation to the concern expressed by Ms. Merritt at the beginning of her statement that the police told the CAS to cancel her access. He submits that these factors should lead me to conclude that the statement has not been proven voluntary.

[104] No submissions were advanced to support the comments in Ms. Merritt’s introductory remarks that she had been told the police would contact the Crown in her abduction case if she did not agree to an interview. There is no evidence before me to suggest that any such threat was made beyond the statement that Ms. Merritt read, while not under oath, that was prepared by her lawyer. Nor were any submissions made in support of what Ms. Merritt read out about being harassed into making a statement.

[105] I conclude that D/Sgt. Amaroso gave credible evidence regarding the interaction he had with or directed towards the CAS. His explanations for what occurred and why in that regard are in accord with common sense. The police have an obligation to ensure that other agencies charged with important public responsibilities of a protective nature are aware of information that comes to the attention of the police during the course of their investigations that could impact the exercise of those protective responsibilities. Consequently, there were good reasons for the contact between the police and the CAS in this case. A police officer would not be expected to keep notes about matters of police policy that were behind the actions of the police.

[106] I also note that all of the witnesses who testified were recalling events that took place six and a half years ago. It seemed to me that D/Sgt. Amaroso had a relatively good, if not perfect, recall. Sgt. Raposo appeared not to have a particularly good recall for details of events so long ago. He readily acknowledged this in his evidence. I observe that the tasks list and other documents that may have helped to refresh memories were not produced to the witnesses. The minor differences in testimony, or the fact that the evidence does not fit together in a perfect matter at this late date is understandable and does not contribute to a reasonable doubt in my mind about voluntariness.

[107] I also note the complete absence of any evidence from a representative of the CAS to support Ms. Merritt’s position. While the onus is on the Crown, I have direct evidence from police witnesses, which I find to be credible, that is contrary to the suggestion raised in the statement prepared by Ms. Merritt’s counsel and read out by her in an apparent attempt to inoculate her statement against subsequent admissibility. Much of what is in that statement is hearsay in terms of proving the underlying facts alleged by Ms. Merritt. In these circumstances I conclude there is nothing to support the sole inducement which it is submitted renders the statement involuntary. Based on the evidence I have I am satisfied that the police did not advise or request that the CAS terminate Ms. Merritt’s supervised access. It is apparent from the evidence that good reason existed for the CAS to do that on their own. Nor is there any evidence that the police tried to use that CAS decision to their advantage by suggesting that the situation with respect to access might change if Ms. Merritt agreed to an interview.

[108] I also note that there are some contradictions of Ms. Merritt’s position within her own statement. For example, while she says she was told the police wanted her access cut off she also said, at p. 8 of the transcript, that no one was telling her why her access was being cut off. At p. 8 she also said she did not know why the Access Centre agreed to stop her access because no one will tell her anything. At p. 6 and p. 89 she also referred to a meeting with CAS on May 13 which could lead to re-instatement of her access. She never said that she believed her cooperation in the police interview could affect the outcome of that meeting. Even if that could be inferred, I point out that there is no suggestion that such belief emanated from anything done by the police that was in any way connected to obtaining a statement from Ms. Merritt.

[109] Drawing back from the individual items of evidence and looking at all of the evidence in overview, based on my factual findings I am satisfied beyond a reasonable doubt that the statement is voluntary. There is no suggestion Ms. Merritt did not have an operating mind. Clearly she did. She had spoken to a lawyer, knew she was speaking to the police and that her statements could be used against her. I have found there were no threats or inducements. This was a friendly interview. There was no hint of oppression. There were no tricks. There is simply nothing that raises a reasonable doubt about whether the will of Ms. Merritt was overborne.

[110] There is also evidence in the statement made by Ms. Merritt three years later, on August 25, 2013, which bears on this issue. I stress, however, that I would find the May 5, 2010 statement voluntary even in the absence of considering that evidence.

[111] When Ms. Merritt spoke of access to her children during her August 25, 2013 interview she did not say anything about the police previously disrupting her access. At p. 19 of that statement she recounted that she had to go to a supervised access centre because of the concern she might abduct the children. There was considerable discussion about access to her children at around the time of Bridget Harrison’s death at pp. 204-206 of her August 26, 2013 statement. Then, at p. 215, Det. Rice raised the issue of CAS involvement at the time when she was reluctant to speak to the police about Bridget’s death. Despite this specific reference, Ms. Merritt said nothing to the effect that the police were responsible for interrupting her access at that time.

[112] Melissa Merritt’s May 5, 2010 statement to the police is admissible.

Pre-Arrest Statements Following the Death of Caleb Harrison

[113] Caleb Harrison was found dead in his bed at around 12:00 noon on August 23, 2013. Det. Derek Rice was the first homicide officer at the scene. He viewed the body with the coroner and an identification officer. He testified that it was not an obvious homicide but it was suspicious. According to Det. Rice the police did not learn the death was a homicide until shortly before 5:00 p.m. on August 24, 2013 when they were so advised by the pathologist.

[114] On August 23, 2013 Det. Rice was tasked to interview Melissa Merritt and Christopher Fattore. The evidence establishes that they were notified of the death by a uniformed officer at approximately 2:00 p.m. No statement was taken at that time. The children, M.1 and M.2, were with Ms. Merritt and Mr. Fattore on an extended period of summer access that was to end later that day.

[115] Det. Rice and Cst. Adam Minion attended at the Merritt and Fattore residence on Mississauga Road in Brampton just before 8:00 p.m. on August 23, 2013. They spoke to Ms. Merritt first in their unmarked police car. They then spoke with Christopher Fattore in the same manner. Both statements were openly audio recorded by means of a small digital recorder. Ms. Merritt’s interview commenced at approximately 7:42 p.m. and ended at 8:32 p.m. Mr. Fattore’s interview commenced at 8:52 p.m. and ended at 9:08 p.m. The last four minutes of Mr. Fattore’s interview were not recorded due to a malfunction of the recorder.

[116] The officers treated Ms. Merritt and Mr. Fattore in the same fashion during these separate interviews. At the outset of each interview each was advised that they were not suspects because, as they were expressly told, the police did not know at that time whether a crime had been committed. They were told the death was suspicious and that if their status changed and it should later be determined that they were involved in a crime, whatever they said now could be used against them. Each was told they had no obligation to speak to the police. Each was also told that they could speak to a lawyer before they said anything to the police if they wished to do so. Each was asked if they wanted to speak to a lawyer first and each declined. These cautions were referred to in court as “soft cautions” because they were not read out formally from an officer’s duty book.

[117] Melissa Merritt does not challenge the admissibility of her statement of August 23, 2013 on any basis. Christopher Fattore challenges the admissibility of his statement on voluntariness grounds.

The Admissibility of Christopher Fattore’s August 23, 2016 Statement

[118] Mr. Fattore submits that although he was told that he was not a suspect he was in fact a suspect. He submits, therefore, that he should have been formally cautioned. He submits that the failure of the police to formally caution him should lead me to conclude that I have a reasonable doubt about the voluntariness of his statement having regard to all the circumstances. This basic submission is bolstered by the submission that it is particularly significant that he was misled as to his status by being told that he was not a suspect. Ms. Myers submits that this undermined his ability to make an informed choice about whether to speak to the police. There is no suggestion that Mr. Fattore was detained at any time in relation to his August 23, 2013 statement.

[119] Turning specifically to the submission that Mr. Fattore was a suspect and should have been cautioned, I would point out that he was effectively cautioned. While the cautions were not read out formally all of the important components of a primary caution were put to him. He was told he did not have to speak, and that if he did and it turned out the police thought he was involved, whatever he said could be used against him. Based on my review of the evidence as a whole it is apparent that Mr. Fattore knew that he was speaking to a police officer and that his words could be used against him. The requirement that he possess an operating mind is established.

[120] As Mr. Fattore was not detained the police were not required to provide him with his s. 10(b) rights to counsel. This is not a situation where the waiver standard in relation to Mr. Fattore’s s. 10(b) rights to counsel applies. The only question is voluntariness.

[121] Because Mr. Fattore was not detained he did not have the protection of the right to remain silent that flows from s. 7 of the Charter. He did have the common law right to remain silent, which I am satisfied he was well aware of. Even if he did have the protection of s. 7, it is clear from Hebert, at para. 55, that the waiver standard does not apply. All that would be required is an operating mind which I have already found to exist.

[122] The foregoing is sufficient to dispose of Mr. Fattore’s submissions. However, I would add that I do not consider Mr. Fattore to have been a suspect as of August 23, 2013. As Det. Rice advised Mr. Fattore, the police did not yet know whether they had a crime on their hands. Det. Rice is a very experienced officer. He was at the scene and viewed the body with the coroner. I accept his testimony that while it was suspicious it was not an obvious homicide. That evidence is uncontradicted. Mr. Fattore was advised of that at the commencement of the interview, but he was also told the situation could change.

[123] To be sure, there were a number of suspicious circumstances, such as the two prior deaths in the same home, the family law dispute over custody and access in relation to M.1 and M.2, and the prior child abduction charges. There were many such factors referred to by Ms. Myers in cross-examination and submissions. However, as of August 23, 2013 those factors did not, in my view, provide reasonable grounds to suspect that Mr. Fattore was implicated in a crime. There were various possibilities. For example, Caleb Harrison was a drinker and the police were actively investigating whether he may have been injured in an altercation in a bar and died later at home. They were also investigating whether he fell getting out of his hot tub and died later in bed. There was no evidence that linked Mr. Fattore to the scene and no concrete evidence that he was implicated in the death.

[124] I observe that even Det. Arnold, the lead investigator, did not formulate her view that Ms. Merritt and Mr. Fattore were suspects until August 24, 2013 at about 1:30 p.m. I will have more to say about Det. Arnold’s assessment later in connection with statements made by the accused to the police subsequent to that point in time.

[125] I am unable to accept Mr. Fattore’s submission that the statement has not been proven voluntary. The audio recording that is available for most of the interview clearly demonstrates that up to the point where the battery failed the interview was conducted in a cordial, respectful and non-confrontational fashion. Both officers testified about what occurred during the last four minutes or so when the battery on the audio recorder failed. There is nothing in their evidence that gives rise to any voluntariness concerns. There is no evidence to contradict their testimony as to the nature of the interview. When I refer to voluntariness concerns I am referring to evidence of threats, promises, improper inducements, oppressive circumstances and police trickery as described in Oickle and other modern authorities.

[126] Taking all of the evidence into account pursuant to the principles outlined in Oickle, I conclude I am satisfied beyond a reasonable doubt that Mr. Fattore’s statement of August 23, 2013 is voluntary and admissible.

Statements Made on August 24 and 25, 2013

[127] The admissibility of these statements is not in issue but they contain important information relevant to the determination of the voluntariness of the statements made by the accused on August 26 and 27, 2013.

[128] On August 24, 2013 Det. Rice went to the coroner’s building in Toronto to view the autopsy. As the autopsy proved to be a lengthy process, Det. Rice was tasked to interview Caleb Harrison’s girlfriend and did so at a police station in Durham Region. As a result of these duties he missed the briefing held in connection with the case that day. He testified that he would have read the briefing notes from that day at a later point, prior to the August 26 and 27 interviews.

[129] Det. Arnold testified that she formed the view, at around 1:30 p.m. on August 24, 2013 that Ms. Merritt and Mr. Fattore were suspects. However, it is apparent from her evidence that that decision was never specifically briefed into the case for other investigators to see.

[130] Det. Rice testified that on August 24, 2013 at 5:10 p.m. Det. Arnold advised him that the death had been confirmed a homicide and tasked him to start notifying people of that fact. Det. Rice was the designated “victim liaison officer” for the case and contact with family members and friends of the deceased was to be through him. This included Melissa Merritt, as Caleb’s former spouse, and the two children, who were in Ms. Merritt and Mr. Fattore’s de facto care at that time.

[131] As a result, Det. Rice went to Ms. Merritt and Mr. Fattore’s residence. He spoke to them together from 5:29 to 5:41 p.m. The conversation was digitally recorded.

[132] The recording illustrates that Det. Rice advised the accused that Caleb’s death had been ruled a homicide and that the police were continuing their investigation and would need to have more in-depth interviews of them. Det. Rice provided his contact information. He spoke to them about notifying the children that Caleb’s death was a homicide and about contacting victim services for assistance.

[133] During the discussion mention was made that Ms. Merritt and Mr. Fattore were about to take the children to Stephanie Dunn’s residence. Ms Dunn was a friend or relative of Caleb Harrison. Other friends and relatives were gathering at her residence due to Caleb’s death. Ms. Dunn had asked Ms. Merritt to drop the children off for a visit with those grieving Caleb’s death. Det. Rice told Ms. Merritt and Mr. Fattore that he was on his way to the Dunn’s to provide the news that the death was a homicide. He asked Ms. Merritt and Mr. Fattore to delay their arrival with the children until he could complete that task.

[134] Later, at 6:30 p.m., Det. Rice encountered Ms. Merritt and Mr. Fattore again at the Dunn residence. By that time he had been tasked by Det. Arnold to arrange formal interviews with Merritt and Fattore. Det. Rice spoke to Ms. Merritt about coming in for a statement. She said her father had advised her not to go in. Det. Rice also asked Mr. Fattore to come in for an interview.

[135] On August 25, 2013 Det. Rice was again tasked to get more detailed statements from the accused. He and Cst. Hobson attended at the Merritt and Fattore residence. He audio recorded a statement with Melissa Merritt from 10:22 a.m. to 10:44 a.m. Ms. Merritt does not contest the admissibility of that statement.

[136] The contents of the August 25 statement are relevant to issues that arise in connection with Ms. Merritt’s subsequent detailed interview on August 26, 2013. The recording and transcript of the August 25, 2013 statement show that Ms. Merritt was aware of her rights. At pp. 2-3 of the transcript Ms. Merritt indicates “they” have been told they do not have to talk to the police and that they have a right to a lawyer. She indicates that her father had given her the number of a lawyer.

[137] At p. 4 of the transcript Det. Rice tells her that she and Chris are “potential suspects” and says he wants to speak to them in more detail to see if he can “eliminate” them as such. Ms. Merritt says she “kind of wants” to do an interview so the police will stop coming around and will leave her alone. At p. 6 she says her father has advised her that the police will compare what she said in the car on August 23, 2013 to what she says in an interview, that they will “nit-pick at it and throw me under the bus …” The “under the bus” comment can be heard on the recording, although the transcript says it is “inaudible”. Ms. Merritt says she would like the police to just go away. Det. Rice politely says he would like to but cannot until the police get a formal statement. He refers to the statement in the car as an informal statement at a time when the death was just suspicious. Ms. Merritt says, at p. 7, that she understands that now that it’s a homicide “it’s a completely different ballgame”. She said she had left a message for a lawyer. Det. Rice says the police are looking for the truth and emphasizes that the police would like her to agree to an interview and asks her to “see our side of things”.

[138] At p. 12 Det. Rice says that due to Ms. Merritt and Mr. Fattore’s past relationship with Caleb Harrison they “are two of the top agenda interviews for me to get done”. He asks her again to try to call a lawyer for advice and for her to call him once she has done so.

[139] At p. 16 Ms. Merritt again says that part of her wants to “do it” and get it over with, but that her father was “chirping in her ear” that she had to be really careful. Her comments show an awareness that what she might say could be used by the police to her detriment. At p. 18 she mentions that her father “worked in homicide for years”. When she says she is conflicted, Det. Rice says that the police don’t want to pressure her. At p. 19 she confirms she knows it’s her right not to talk to the police and that her father is telling her not to.

[140] At p. 21 Det. Rice asks about Mr. Fattore. Ms. Merritt says, at p. 22, that her father spoke to both of them at the same time. Ms. Merritt asks Det. Rice to give her until the following afternoon to decide, and he says, “okay”. The conversation was polite throughout and ended on a friendly note.

[141] Det. Rice testified that Ms. Merritt called him later on August 25, 2013 and said she would come in the next morning for an interview.

[142] There is also evidence of various telephone calls placed by Det. Rice to the cell phone used by Ms. Merritt and Mr. Fattore, and of the reasons for those calls. Det. Rice said he did not leave messages and that his phone would not show a “caller id”. He did have some telephone contact where Ms. Merritt provided information about Caleb’s email.

[143] The contents of these statements, the admissibility of which is not in issue, tend strongly to show that Ms. Merritt and Mr. Fattore were aware of their rights and knew they had a choice whether to speak to the police. While they also demonstrate some persistence on the part of the police it is difficult to characterize that as excessive, harassing, or oppressive.

Melissa Merritt’s August 26, 2013 Police Interview

[144] Melissa Merritt attended at 11 Division of the PRP on the morning of August 26, 2013. She was interviewed by Det. Rice on video from 9:21 a.m. until approximately 3:11 p.m. A transcript of the interview is 264 pages in length.

[145] Towards the end of the interview, at p. 254, Det. Rice left the interview room briefly and then came back and told Ms. Merritt that he had been instructed to seize the cell phone in her possession. He then took the phone without resistance or confrontation. The evidence shows that Det. Arnold instructed Rice to seize the cell phone during a break in the interview. A warrant was subsequently obtained to examine the phone.

[146] At the beginning of the interview Det. Rice clearly states that the police are investigating the murder of Caleb Harrison. Commencing at p. 4 Det. Rice goes over Ms. Merritt’s rights. He confirms she is there voluntarily. He tells her she is not a suspect and that she is not under arrest. She is told she does not have to be there if she does not want to and that she is free to leave at any time.

[147] Det. Rice says he knows she has spoken to a lawyer. She does not advise Det. Rice until much later in the interview that she has not yet spoken to a lawyer. I note that her comment about not speaking to a lawyer is contradicted by Mr. Fattore in his interview the next day. At p. 4 Det. Rice says that if she wants to speak to a lawyer at any time she can. He tells her the door is open, she can leave at any time and that she does not have to speak to him.

[148] Significantly, Det. Rice did not tell Ms. Merritt on this occasion that anything she said could be used against her. However, he did tell her that on August 23, and based on the August 25, 2013 transcript, she understood that. On August 23 she also said that if she did not like any of the questions she would not answer them, or words to that effect.

[149] Det. Rice then went over the entire history of his contact with Ms. Merritt. She confirmed that she had not been threatened or intimidated. She agreed that she was there of her own free will but added that she was there “mostly because you said that you really need me to come in”.

[150] Det. Rice then conducted a very detailed interview. The interview covered the entire history of her relationship with Caleb Harrison and the Harrison family, the child custody dispute and numerous other relevant matters. There was also a very detailed review of all of Ms. Merritt’s and Mr. Fattore’s movements around the time of Caleb’s death. At pp. 212-13 of the transcript Ms. Merritt was asked if she would agree to a polygraph examination which could help to eliminate her from suspicion. A few questions were also asked about Bridget Harrison’s death. Det. Rice said that at that point there was nothing to link the two deaths.

[151] Ms. Merritt and Mr. Fattore were some of the last people to see Caleb Harrison alive. They had attended M.2’s baseball game on the evening of August 22, 2013. Caleb Harrison was assisting in coaching M.2’s team. Det. Rice went very carefully over all of Ms. Merritt and Mr. Fattore’s movements following the baseball game. The same ground had been covered with both Ms. Merritt and Mr. Fattore on August 23, 2013. This has become important as evidence subsequently obtained indicates that both Ms. Merritt and Mr. Fattore left important matters out of their statements.

[152] Det. Rice later took the same approach when he subsequently interviewed Mr. Fattore on August 27, 2016. I mention this because Mr. Fattore challenges the admissibility of his August 27, 2013 statement on many of the same bases that are raised in connection with Ms. Merritt’s August 26, 2013 statement.

[153] I also mention this particular part of the interviews because the activities of Ms. Merritt and Mr. Fattore after the ball game on August 22 figure into subsequent developments related to when Det. Rice concluded Ms. Merritt and Mr. Fattore became suspects. As I will get to, Det. Rice testified that that did not occur until after certain discoveries were made upon examination of the garbage from the Merritt and Fattore residence that was picked up by the police on August 29, 2013. As previously mentioned, Det. Arnold formed the view that both accused were suspects by August 24, 2013 at about 1:30 p.m. However, her conclusion in that regard was not briefed into the major case file in express terms.

Analysis

[154] On behalf of Ms. Merritt, Mr. Berg submits that Det. Rice was engaged in police trickery when he told Ms. Merritt at the beginning of her August 26, 2013 interview that she was not a suspect. It is implicit in this submission that I should find that Det. Rice is not credible when he says that he did not regard Ms. Merritt and Mr. Fattore to be suspects as of August 26 and 27 or when he says that he was unaware of Det. Arnold’s view that they were suspects. I turn now to these factual matters.

[155] As a “major case” this investigation was dealt with in accordance with the Major Case Manual. Det. Kristine Arnold was assigned as the lead investigator. Her job was to assign tasks, move the case forward, collect information and conduct briefings.

[156] This was her third homicide investigation. She described how she worked in a project room. For the most part, she remained there. Other investigators were assigned tasks by her and reported to her. While her job was to know as much as possible about all aspects of the investigation at all times, that sometimes proved impossible due to the rapidity of developments and the large amount of information coming in. That was particularly so at the beginning of the investigation. As a result, she was not always in a position to advise officers why they were being assigned a task.

[157] Det. Rice was a member of the investigative team. Det. Arnold and Det. Rice held the same rank and Det. Rice was a more experienced investigator than Det. Arnold. However, because Arnold was designated as the lead investigator Rice was required to take direction from her.

[158] Det. Sgt. Cowan was the “major case manager”. His rank was higher than Det. Arnold’s and he was in charge of the investigation, although Det. Arnold decided upon and assigned the tasks.

[159] Another officer was designated as the “file coordinator”. That officer’s task was to brief all developments into the major case system. Briefing notes were distributed to all team members, who were expected to read them.

[160] Det. Arnold described a very hectic situation in the early days of the investigation into Caleb Harrison’s homicide. On August 24, 2013 at 10:53 a.m. she reviewed the occurrences relating to the deaths of Bill and Bridget Harrison. Those occurrences were “briefed in” to the record of this investigation in their entirety. This is significant in terms of what other officers would glean by reading the briefing notes. She said she struggled to maintain focus on the investigation of Caleb Harrison’s death due to the prior occurrences.

[161] Det. Arnold said that by about 1:30 pm. on August 24, 2013 she had concluded that Ms. Merritt and Mr. Fattore were suspects. There were other suspects to her mind as well, but as she put it, so much information was coming in so fast on Merritt and Fattore that they attained that status in her mind.

[162] Det. Arnold was called as a defence witness on behalf of Ms. Merritt. I relaxed the rules of examination-in-chief as Det. Arnold was potentially adverse in interest to the accused. However, as it turned out, Det. Arnold gave evidence that was quite favourable to the defence position on the suspect issue.

[163] Det. Arnold was cross-examined by Mr. Taylor for the Crown. Mr. Taylor took a respectful approach but was well prepared. Mr. Taylor took Det. Arnold step by step through the briefing notes to have her identify what it was she was relying upon to conclude that the accused were suspects. This proved to be fairly effective because it soon became apparent that Det. Arnold was placing considerable weight on the suspicions of friends and family of the deceased which were not supported by any concrete evidence. She was combining that information, which she described as “hearsay”, with evidence she called “similar act” relating to certain coincidental similarities but which would not fall within a lawyer’s understanding of that term, and evidence of potential motive related to the child custody dispute and a possible financial motive, to conclude that Ms. Merritt and Mr. Fattore were suspects.

[164] The types of things Det. Arnold said she relied upon included comments by family members, or friends of Caleb Harrison, that the only person Caleb had problems with were his ex-wife and her new partner, that Caleb’s ex-wife was a “psycho” and that another person said she thought Melissa Merritt was responsible for the deaths, but could not say why. Det. Arnold also took into account that M.1 had a key to Caleb’s house and that Ms. Merritt and Mr. Fattore took off with the children to Alberta and Nova Scotia in close proximity to Bill Harrison’s death. The factors set out in the briefing notes which Det. Arnold took into account where neatly collected and summarized at one point during her cross-examination by Mr. Taylor. I have not referred to all of them here.

[165] During this process of cross-examination Det. Arnold continued to volunteer additional factors, which she described as “red flags”, to convince Crown counsel and the court that there was a sound basis for her conclusion on the suspect issue. Yet, for the most part, these factors remained in the category of things that founded pure suspicion but which, viewed objectively did not provide tangible evidence that the accused were implicated in the commission of a crime. While there were many circumstances that raised suspicions they were not such that objectively they could have justified an investigative detention. See Singh, at para. 32.

[166] Det. Arnold said that she felt these “red flags” pointed towards the accused. As she put it, these were red flags that went towards “gut policing”. She said it was due to “gut feeling” that she wanted Det. Rice to caution Ms. Merritt and Mr. Fattore during their August 26 and 27 interviews. On several occasions during her cross-examination by Crown counsel Det. Arnold continued to refer to “gut feeling”. She told Mr. Taylor that he was correct in suggesting that she was “going with her gut” or words very close to that. She agreed she was relying upon speculation by the family to an extent.

[167] I am satisfied that Det. Arnold is completely credible when she said she was relying on her “gut instinct” and “gut policing”. The manner in which she gave her evidence shows that she was not in any way trying to assist the Crown in showing that the test to be applied to determine whether someone is a suspect had not been met. Contrary to what Crown counsel was trying to establish, Det. Arnold continued to volunteer additional factors to support the correctness of her position on the suspect issue.

[168] Based on observing the manner in which this all unfolded, I find that Det. Arnold was relying on her gut instincts as opposed to an articulable constellation of objectively discernable factors to reach her conclusion that Ms. Merritt and Mr. Fattore were suspects. I wish to add that in the context of this case it is understandable why an experienced officer might subjectively be quite suspicious of the accused. However, on the basis of Det. Arnold’s own description of how she reached her opinion, I conclude she used or applied the wrong test. While she testified that she felt her approach was similar to the test described in the Major Case Manual, I am of the view that what she described does not comport with the test promulgated by Charron J. in Singh at para. 32. Consequently, while Det. Arnold decided the accused were suspects and wanted them cautioned, I am not persuaded by her evidence or the other circumstances of the case that the accused met the test described in Singh.

[169] That does not end the matter, however, because Ms. Merritt maintains that Det. Rice is not credible when he says he was not aware that the lead investigator regarded the accused as suspects nor when he says that he did not regard them as such. I will deal with these two related submissions together.

[170] In cross-examination by Mr. Taylor, Det. Arnold agreed that her views on the “suspect issue” were not added into the briefing notes. Therefore, if Det. Rice kept up to date on the notes, as he said he did prior to the interviews on August 26 and August 27, 2013, he would not have seen any indication of her views.

[171] Det. Arnold also agreed that the occurrences from the investigations into Bill and Bridget Harrison’s deaths had been included in their entirety in the briefing notes. She agreed that the occurrence related to Bill Harrison’s death attributed it to unexplained natural causes and that the occurrence relating to Bridget Harrison’s death said there was no evidence of foul play. Anyone reading the briefing notes would see those conclusions.

[172] Det. Rice testified that he used a definition of suspect which he understood was contained in the Major Case Manual. He understood that there had to be some evidence of actual culpability for the crime under investigation. This appears to me to be more in keeping with the test adopted in Singh and it is a more onerous test than was actually applied by Det. Arnold.

[173] Det. Rice explained in his evidence that he did not consider Ms. Merritt and Mr. Fattore to be suspects until after the garbage was seized from their residence on August 29, 2013. The garbage was found to contain a pair of black latex gloves and a pair of running shoes that appeared to be brand new, as well as a cylindrical object that Det. Rice felt could have been used to cause a mark on Caleb Harrison’s chest. In short order, Det. Rice was able to establish that Mr. Fattore bought the shoes at Walmart on the evening of August 22, 2013 after leaving M.2’s ball game. Although Ms. Merritt and Mr. Fattore had given detailed accounts of being in the plaza where the Walmart in question was located on the evening of August 22 in order to attend at two fast food restaurants, each left out any reference to shoes being purchased at Walmart.

[174] These are circumstances which do, in my view, tend to demonstrate potential culpability for the crime under investigation. I find Det. Rice’s assessment of when the accused could reasonably be viewed as suspects to be credible and convincing. I find that his evidence about the test he applied is consistent with the test set out in Singh.

[175] I turn back to Det. Arnold’s evidence. Det. Arnold said that she met with Det. Rice on the morning of August 26, 2013 to discuss the interview of Ms. Merritt which he was about to conduct. Det. Arnold testified that she told Det. Rice that she wanted him to caution Ms. Merritt and give her her rights. She said Det. Rice “dug in his heels” and did not want to do that. This was just minutes before the interview was to start. Arnold said Rice did not understand why she wanted Ms. Merritt cautioned. Det. Arnold said she told him she just wanted it done. She testified that “homicides can be tricky these days” and she wanted the statements to be “Charter proof” and admissible. She said neither she nor Rice ever spoke about whether the accused were suspects nor why she thought they should be cautioned. When Rice dug his heels in she also said, “you never know”.

[176] As they were going back and forth D/Sgt. Cowan entered the room and told Det. Rice to just do what Det. Arnold wanted. Det. Arnold said she left it to Det. Rice, as a seasoned investigator, to decide how he would caution Ms. Merritt. She said that she did not watch any part of the interview and was not aware at the time that Det. Rice told Ms. Merritt she was not a suspect. Had she been aware of that she may have intervened.

[177] During her examination-in-chief by Mr. Berg, Det. Arnold was asked if Ms. Merritt’s status in the investigation was important to her. Det. Arnold said it was a “grey area” in her mind. Arnold said people who worked closely with her, or as she put it, “who sat with her” in her project room, would know that she considered Ms. Merritt and Mr. Fattore suspects. However, she added that she did not know what Det. Rice “pulled from the briefing notes”. She said what was more important was that the interviews be conducted so that they were admissible. The evidence shows that Det. Rice spent most of his time in the field.

[178] Det. Arnold said she did not have a separate similar conversation with Det. Rice about Mr. Fattore. However, in cross-examination by Mr. Zaduk she said she was sure that Det. Rice would know from the nature and content of their conversation that he should also caution Mr. Fattore. In other words, Det. Rice would know that she wanted both of the accused dealt with in the same manner. Clearly, Det. Arnold viewed both Ms. Merritt and Mr. Fattore as suspects.

[179] Det. Arnold said that in hindsight she wished she had spoken more to Det. Rice about “what she was getting” from the investigation. She testified that later Rice told her he did not have a bad feeling about Merritt and Fattore. I observe that Rice had considerable personal contact with Ms. Merritt and Mr. Fattore. Having listened to and viewed the recordings of the statements I would also observe that Ms. Merritt and Mr. Fattore spoke freely and appeared to be open and were providing significant details to the police. The conversations had a natural feeling about them. I have no evidence that Det. Arnold had any personal contact with Ms. Merritt or Mr. Fattore to this point in the investigation.

[180] Based on the evidence overall, I find that Det. Rice was unaware that Det. Arnold had determined that the accused were suspects. There was nothing in the briefing notes to indicate that. Moreover, I find that Det. Rice applied a test on the suspect issue which was generally in accord with Singh. His conclusion that the test was not met as of August 26 and 27, 2013 was objectively reasonable. Det. Arnold’s assessment, which was based on gut instinct, was not. It is understandable in these circumstances why Det. Rice would tell Ms. Merritt on August 26 and Mr. Fattore on August 27, 2013 that they were not suspects. He nonetheless issued “soft cautions”. Although those cautions were not perfect they go some distance towards addressing concerns about voluntariness.

[181] The fact that detailed investigative questions were asked by Det. Rice does not establish that Ms. Merritt was a suspect. One would expect the police to ask such questions during any important investigative interview whether or not the person was a suspect.

[182] Most significantly, these findings lead me to reject the submission that Det. Rice is not credible on these points. I find that he is. While it may have been unwise to tell the accused they were not suspects when different people might have different views of that, I am satisfied that this was not a police trick. I am satisfied that Det. Rice was not engaged in deliberately providing misinformation to the accused. Det. Arnold’s views were not known to him, beyond her wanting him to caution the accused. The fact that he, as an experienced homicide investigator, used a soft caution is some further evidence of the genuineness of his conclusion that the accused were not suspects. In addition, I conclude that on the basis of the correct test the threshold of being a suspect had not yet been crossed, despite Det. Arnold’s different view. I make my assessment of voluntariness of Ms. Merritt’s August 26, 2013 statement against the background of these factual findings.

Voluntariness

[183] I am satisfied that Melissa Merritt’s statement of August 26, 2013 has been proven voluntary beyond a reasonable doubt. I repeat that I have not yet heard the deferred argument that Ms. Merritt was detained at the time her cell phone was seized.

[184] First, I will comment on the interview itself. The interview was thorough and detailed. It was conducted in a polite and professional manner. Although important investigative questions were asked, it was not confrontational or accusatorial. Leaving the suspect issue aside, no submission has been made that there were threats, promises or improper inducements. Refreshment and washroom breaks were offered. The circumstances of the interview were not oppressive in any way. Ms. Merritt was advised that she did not have to speak, that the door was open and that she could leave or speak to a lawyer at any time. She spoke freely during the interview without any reluctance.

[185] Second, what took place on August 26, 2013 must be evaluated against the background of what occurred during the previous three days. Ms. Merritt had been effectively cautioned by the police on August 23, 2013. She was told she was not a suspect at that time, but also that that could change. While a caution was not formally read, all of the important elements of a primary caution were covered. Rights to counsel were similarly covered with her in an informal but reasonably thorough fashion. Ms. Merritt said on August 23, 2013 that if she was uncomfortable with any question she simply would not answer it. She was aware of her right to choose whether to speak to the police and of the consequences of her choice.

[186] It is also apparent from the recording of the conversation between Det. Rice and Ms. Merritt on August 25, 2013 that she was aware that she did not have to speak to the police and that if she did it could be used to her detriment.

[187] The evidence also shows that both Ms. Merritt and Mr. Fattore were receiving advice from Ms. Merritt’s father, described by both as a retired Toronto police officer who had worked in homicide. He told them not to talk to the police.

[188] It was against this background that Ms. Merritt made a choice to voluntarily attend a police station to participate in an interview. Once she arrived she was reminded of almost all of her rights and was told she could leave at any time. She chose to stay and spoke freely with Det. Rice. While he did not tell her again that what she said could be used against her I am satisfied she was well aware of that prior to August 26, 2013.

[189] I turn back now to counsel’s submission that Ms. Merritt was provided with misinformation when she was told she was not a suspect. Based on my findings Ms. Merritt was not misinformed because on the available evidence she did not fall within the category of suspect as defined in Singh.

[190] Furthermore, given my finding that Det. Rice is credible when he says he did not consider Ms. Merritt to be a suspect and that he was not aware that Det. Arnold had a different view, there was no police trickery. This finding is independent of the correctness of my assessment of the suspect issue.

[191] Given these conclusions there is simply nothing that raises a reasonable doubt in my mind about the voluntariness of Ms. Merritt’s August 26, 2013 statement.

[192] However, I have also considered the question of voluntariness on the assumption that I am wrong on the question of whether Ms. Merritt could properly be considered a suspect based on the test in Singh. Even if Ms. Merritt was provided with misinformation on the suspect issue I would still find the statement to be proven voluntary. This change in the scenario would not affect my determination that Det. Rice understood that she was not a suspect. There would still be no issue of police trickery to be considered.

[193] The question arises as to how the provision of such misinformation might affect the voluntariness analysis. I note that in Whittle, at para. 30, Sopinka J. said the following:

The preoccupation of the common law and Charter cases in preserving for the suspect the right to choose has been in relation to state action. Did the action of police authorities deprive the suspect of making an effective choice by reason of coercion, trickery or misinformation or the lack of information.

I pause my quotation from Whittle to point out that at this point Sopinka J. was speaking collectively of common law and Charter considerations, which can be quite different depending upon whether the person the police are speaking to is detained. Sopinka J. then went on immediately as follows:

The issue in this case is whether, absent any conduct by the police, the suspect is deprived of the ability to choose by reason of mental incapacity.

[194] Whittle was a case where the accused suffered from a mental illness and the focus was on whether that deprived him of the ability to choose whether to speak to the police. In our case the issue flowing from this passage from Whittle, modified to fit this case and the current assumption, becomes whether Ms. Merritt was deprived of her ability to choose whether to speak to the police because she was mistakenly but not deliberately misinformed that she was not a suspect.

[195] Looking at all of the evidence and assuming that Ms. Merritt was misinformed as to her status, I am satisfied beyond a reasonable doubt that she was not deprived of her ability to choose whether to speak to the police. Nor was her actual choice overborne. Whether she was a suspect or not may well have been a factor she took into account in exercising her choice. However, Ms. Merritt was not detained and the standard is not that of waiver, which would apply in relation to her s. 10(b) rights, because they were not engaged. As mentioned previously, even if the s. 7 protection of the right to remain silent applied, the standard would not be that of waiver but rather the operating mind test: Hebert, at para. 55. Clearly, based on Whittle, that is the test that applies. Given all of the evidence that shows that Ms. Merritt understood her rights and the consequences of choosing to speak to the police, the provision of this one piece of misinformation would not change the outcome of my analysis. I remain satisfied beyond a reasonable doubt that Ms. Merritt’s will was not overborne. She knew that she was speaking to the police and that if she spoke to them what she said could be used against her. She voluntarily chose to speak to the police.

Section 7 of the Charter

[196] Finally, I must address Ms. Merritt’s argument that her statement should be excluded due to an independent violation of s. 7 of the Charter.

[197] As I understand Mr. Berg’s argument, he submits that because the police deliberately misled Ms. Merritt into thinking she was not a suspect, something which could affect her decision whether to speak to the police, I should extend the application of s. 7 protection of the right to remain silent to this non-custodial situation and find a s. 7 Charter violation.

[198] There are a number of impediments to the success of this submission, three of which I have already mentioned. First, I have found that Ms. Merritt was not misinformed. Second, I have noted that even if I am wrong and Ms. Merritt was misinformed, I accept Det. Rice’s evidence that he did not consider her a suspect and was unaware that Det. Arnold did. Therefore, there was no deliberate misleading. Third, I have pointed out that even if the right to remain silent as protected by s. 7 of the Charter did apply, the test for violation is not that of waiver but that of an operating mind: Hebert, para. 55. I have already found that Ms. Merritt had an operating mind.

[199] In addition, to this point in time the protection of the right to remain silent provided by s. 7 has always been restricted to circumstances of detention: Hebert, at para. 74; Singh, at para. 32. Ms. Merritt was not detained.

[200] In R. v. Osmar (2007), 2007 ONCA 50, 84 O.R. (3d) 321 (Ont. C.A.) the court considered a submission that s. 7 protection of the right to silence should be extended to a “Mr. Big” operation. Rosenberg J.A. commented, at para. 25, that Hebert and R. v. McIntyre, 1994 CanLII 95 (SCC), [1994] 2 S.C.R. 480 posed what “would appear to be insurmountable barriers” to the success of that argument. After a careful analysis he held, at para. 42, that such s. 7 protections might be able to be extended “to a case where the accused, although not in detention, was nevertheless under control of the state in circumstances functionally equivalent to detention and equally needing protection from the greater power of the state.”

[201] When pressed in oral argument Mr. Berg ultimately conceded that he could not meet this test, given that Ms. Merritt voluntarily attended at the police division and was told she was free to leave at any time.

[202] I also note that in R. v. Pomeroy, 2008 ONCA 521, 91 O.R. (3d) 261, the court rejected an argument, similar to that advanced by Mr. Berg, that s. 7 was violated because the police obtained a statement without advising the accused of his true status in the investigation. I would apply the reasoning in Pomeroy here. The submission that there is an independent s. 7 violation fails.

[203] Ms. Merritt’s August 26, 2013 statement is admissible.

Christopher Fattore’s August 27, 2013 Police Interview

[204] Mr. Fattore attended at a police station for an interview on August 27, 2013. He was interviewed on video by Det. Rice from 9:16 a.m. until 11:31 a.m.

[205] Mr. Fattore was offered water at the commencement of the interview. He had a cup of coffee with him. Det. Rice told Mr. Fattore he would try to be finished by 11:00 a.m. Mr. Fattore was told everything was being recorded.

[206] Det. Rice confirmed that the police were conducting a homicide investigation. He made references to his prior contacts with Ms. Merritt and Mr. Fattore. Det. Rice confirmed that Mr. Fattore was present of his own free will. He told Mr. Fattore that he was not a suspect and that he was free to leave at any time. He said the police had no information as to who was responsible.

[207] Mr. Fattore was asked if he had spoken to a lawyer. He said, “we talked to one” briefly. Mr. Fattore said the lawyer “told us that we didn’t have to come in”. Mr. Fattore was asked if he wanted to speak to a lawyer at that time and he said he did not.

[208] Det. Rice then cautioned Mr. Fattore without reading a formal caution. Mr. Fattore was told that he did not have to speak to the police and that anything he said could be used against him in court. Mr. Fattore indicated that he was still prepared to talk. Mr. Fattore was well aware that the cell phone he shared with Ms. Merritt had been seized by the police during her interview the previous day.

[209] Det. Rice then conducted a detailed investigative interview. He made efforts to elicit as much detail as possible. Topics covered included Caleb and Melissa’s relationship, Caleb’s drinking habits and behaviour, Ms. Merritt and Mr. Fattore’s movements and whereabouts on August 22 and 23, 2013 and their relationship to the Harrison family generally. Later in the interview some questions were asked about Bridget Harrison’s death. A few questions were asked about Bill Harrison. However, most of the interview focused on circumstances surrounding Caleb Harrison’s death.

[210] During the interview Det. Rice looked at Mr. Fattore’s hands, head, neck and shoe treads. Mr. Fattore explained that a small cut or mark on his hand was the result of putting a trampoline together for his children. Det. Rice later took photographs of Mr. Fattore’s hands.

[211] Det. Rice also asked questions that could be related to possible motives. Similar questions had been asked of Ms. Merritt the previous day. He also asked about Mr. Fattore’s vehicle and whether it would be seen on video anywhere near the Harrison residence on the night of August 22 or early morning of August 23, 2013.

[212] Towards the end of the interview Mr. Fattore asked if the Bridget Harrison investigation was “back open”. Det. Rice said that it was never closed. He added that Caleb’s death had been ruled a homicide while Bridget’s was still regarded as suspicious.

[213] The entire interview was conducted in a low key professional manner. It was not confrontational or accusatorial, although some pointed questions were asked to test parts of Mr. Fattore’s account.

[214] Based on my review of the video recording of the interview no obvious concerns about voluntariness arise. There is no evidence of threats, promises, improper inducements or oppressive circumstances.

[215] Ms. Myers, on behalf of Mr. Fattore, makes essentially the same arguments that Mr. Berg did on behalf of Ms. Merritt, but without any attempt to extend the reach of s. 7 Charter protection of the right to remain silent to circumstances where there is no detention. There is no suggestion that Mr. Fattore was detained at the time of his interview.

[216] I have already dealt with the “suspect issue” in regard to Ms. Merritt. The findings I have already made concerning whether Det. Arnold or Det. Rice made a correct appraisal on the suspect issue, and concerning the credibility of Det. Rice’s testimony that he did not regard either Ms. Merritt or Mr. Fattore as suspects and was unaware that Det. Arnold held a different view, apply here.

[217] I find that Mr. Fattore was not a suspect at the time of the interview. In any event, he was effectively cautioned. He had been cautioned on August 23, 2013 as well. He was also receiving advice from Ms. Merritt’s father and he had spoken to a lawyer. I conclude he was well aware of his rights and was aware that anything he said could be used against him. He had an operating mind.

[218] Based on my findings, I am satisfied that Mr. Fattore was not misinformed about his status in the investigation. If I am wrong in that, as in the case of Ms. Merritt’s August 26 statement, and for substantially the same reasons, that would not affect the outcome of my analysis. If he was misinformed it was not deliberate. There was no police trickery. Even assuming that Mr. Fattore was misinformed as to his status, the evidence overall satisfies me beyond a reasonable doubt that he voluntarily chose to speak to the police. His will was not overborne by anything that emanated from the police.

[219] There is an additional aspect to the “suspect” argument that I wish to address. Both Ms. Merritt and Mr. Fattore pointed to the seizure of a cell phone from Ms. Merritt during her August 26, 2013 statement and to the application by the police for a production order to obtain the records for that cell phone and a warrant to examine the phone itself, as an indication that the accused must be found to have been suspects. The cell phone was used by both of the accused.

[220] Once that submission was made I asked to see the informations to obtain (ITOs) for the production order and the warrant. They were produced and marked as exhibits on the voir dire.

[221] Exhibit 24 is the ITO for a production order for the records in relation to the cell phone used by both accused that was seized from Ms. Merritt at the end of her August 26, 2013 interview. Exhibit 25 is the ITO for a production order for the records for a second cell phone number for Ms. Merritt found in the contacts on Caleb Harrison’s phone. Exhibit 26 is the ITO for a search warrant to examine the phone seized from Ms. Merritt during her August 26, 2013 interview.

[222] The ITOs for the production orders were sworn on August 26, 2013 and are the most relevant. The ITO for the warrant was sworn on August 28, 2013, after both Ms. Merritt and Mr. Fattore’s interviews were completed. The same affiant swore all three ITOs.

[223] The ITOs for the production orders indicate that the police believed Caleb Harrison was murdered in his residence by “unknown persons”. They also indicate that Caleb Harrison’s last phone calls to his girlfriend were made using cell towers not normally utilized when making calls from his residence, and that his whereabouts at that time was unknown.

[224] The ITO for the production order for the records for the phone seized from Ms. Merritt states that those records will assist the police in identifying patterns of communication between her and Caleb Harrison and will help the police determine the whereabouts of Ms. Merritt and Mr. Fattore when the murder took place. The ITO indicates that such information could assist in verifying their alibis.

[225] The wording of each ITO is slightly different. However, the contents of the ITOs do not bear out that the police considered that they had evidence that the accused were culpable. Rather, the tenor of the ITOs is that the police needed to investigate to determine whether the accused had played any role in the murder and to assist in identifying a suspect.

[226] The ITOs also demonstrate that the affiant, who would have read the same briefing notes that Det. Rice did, had not drawn from those notes that Det. Arnold considered the accused to be suspects, even two days after Det. Arnold said she had reached that conclusion.

[227] I would add these observations to what I said previously when evaluating the admissibility of Ms. Merritt’s statement of August 26, 2013.

[228] It follows from all of the foregoing that I am satisfied beyond a reasonable doubt that Mr. Fattore’s statement of August 27, 2013 was made voluntarily. It is, therefore, admissible.

Conclusion

[229] The pre-arrest statements of both Melissa Merritt and Christopher Fattore are voluntary and admissible.

F. Dawson J.

Released: November 10, 2016

[^1]: Counsel for Ms. Merritt wishes to argue that detention arose at the end of her August 26, 2013 statement when a cell phone was seized from her. That issue has been deferred due to lack of timely notice by counsel for Ms. Merritt that it would be raised.