Court File and Parties

COURT FILE NO.: CR-16-10000153-0000 DATE: 20170502 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant/Respondent – and – ERIC BROWN Respondent/Applicant

Counsel: Marnie Goldenberg, for Her Majesty The Queen Adam Forbes, for Eric Brown

HEARD: March 28 and 29, 2017

RULING ON VOLUNTARINESS and ss. 10(a) and (b) of the CHARTER

DUNNET J. (Orally)

Overview

[1] Eric Brown is charged with dangerous driving causing death and criminal negligence causing death. The Crown seeks a ruling that statements made by Mr. Brown about consuming “weed” and looking at his cellular telephone just before the motor vehicle accident were made voluntarily and are admissible at his trial. The onus is upon the Crown to prove beyond a reasonable doubt that the statements were voluntary.

[2] The defence seeks a ruling that Mr. Brown’s statements were made in violation of ss. 10(a) and (b) of the Canadian Charter of Rights and Freedoms and should be excluded from the evidence at his trial. The onus is upon the defence to prove on a balance of probabilities that Mr. Brown’s Charter rights were infringed and that admission of the evidence would bring the administration of justice into disrepute.

The Evidence

Erin Ronningen

[3] On August 18, 2014, Erin Ronningen was a rear seat passenger in a taxi travelling westbound on Queen Street East in Toronto. Ms. Ronningen heard a thump and the screech of brakes. The driver stopped the taxi and Ms. Ronningen got out of the vehicle. She saw a sport utility vehicle (“SUV”) stopped on the north side of the road and a man lying on the road ten feet in front of the SUV. Ms. Ronningen went over to the man and held his hand, but he was not responding.

[4] A man got out of the driver’s seat of the SUV. He appeared frantic and upset and asked Ms. Ronningen to call 911. The man told her that he was going to get his brakes fixed.

Police Officer Robert Rodriguez

[5] Robert Rodriguez has been a police officer for 29 years. At 1:28 a.m. on August 18, 2014, he received information about an accident on Queen Street East at Tracy Street. Queen Street East is divided into two eastbound and two westbound lanes. At the time of the accident, the roadway was straight, level, dry and well lit with good visibility.

[6] When Officer Rodriguez arrived at the scene at 1:35 a.m., emergency service vehicles had already arrived. The officer testified that ten minutes later, he was told that the victim had succumbed to his injuries.

[7] An SUV with extensive front end damage was located on the north sidewalk of Queen Street East facing north-west against a tree. An aluminum street sign pole and two bicycle ring locking stations on the sidewalk had been knocked down. Parts of a garbage container were located on the sidewalk and along the centre line of Queen Street East.

[8] Officer Rodriguez saw a man standing on the sidewalk behind the SUV. He was on his cellular telephone, “crying in hysterics.” The officer canvassed the crowd to ascertain the driver of the SUV. Mr. Brown, who was the man on the cell phone, identified himself as the driver. Mr. Brown told the officer that he had an issue with his brakes and was going to be taking his vehicle to a mechanic to have the brakes repaired. When the officer asked to see his driver’s licence, Mr. Brown told him that his licence was under suspension.

[9] The officer testified that although Mr. Brown was visibly shaken, he did not smell of alcohol or drugs. Nonetheless, Officer Rodriguez did not rule out impairment at that point and wanted to continue to observe him. Officer Rodriguez detailed Police Officer Matthew Miller to stay with Mr. Brown, primarily to ensure that he did not leave the scene.

[10] When the media arrived on scene, Officer Rodriguez asked Mr. Brown if he wanted to have a seat in a police vehicle. He told Mr. Brown that he was not under arrest. He told Officer Miller that if Mr. Brown needed water or wanted to get out of the vehicle, he was to let him out. Mr. Brown entered the police vehicle at 2:11 a.m.

[11] At 2:16 a.m., Officer Rodriguez opened the driver’s side rear door of the police vehicle. Between 2:16 a.m. and 2:18 a.m., the officer and Mr. Brown had a conversation that was video and audio recorded by the recording system installed in the police vehicle. Officer Rodriguez asked Mr. Brown if he had taken any drugs. Mr. Brown replied that he just smokes “weed.” Officer Rodriguez asked Mr. Brown if he was smoking weed that night and Mr. Brown said, “Yeah, I smoke a lot of weed.” When the officer asked him when was the last time he smoked weed that night, Mr. Brown replied:

Probably like half hour ago, hour ago. This – this is before this happened, like just before this happened. Not too long actually.

[12] Officer Rodriguez asked Mr. Brown, “So what happened?” and Mr. Brown replied:

My phone must have rang, but I never picked it up. To tell you the truth, I looked at it and as soon – as soon as I looked up quick like, I don’t know if he was crossing the street. I don’t know what happened, sir, to tell you the truth, and this boom. I just see the man on the floor. Like, it was like, so quick, sir. It was like, so quick.

[13] At approximately 2:19 a.m. Mr. Brown had a telephone conversation with his mother during which he made the following statement to her:

They asked if I’m un – under the influence. I told them I just smoked a little bit of weed. And they asked me what happened. I said I was coming along Queen and my phone rang. I looked up. As soon as I looked up, like, I think the guy was crossing. I don’t know what happened and it happened so quick.

[14] As Mr. Brown was speaking to his mother, Officer Miller reminded him that whatever he was saying was being audio and video recorded, and that the cameras were rolling, the microphone was working, and his conversations were not private. Mr. Brown replied that he was aware of that and he was not hiding anything. (This exchange was also captured on the recording.)

[15] Officer Rodriguez testified that as Mr. Brown’s responses to his questions were forthcoming and logical, he was able to rule out impairment. Officer Rodriguez stated that he was wearing his uniform but that he did not have his firearm drawn when he was speaking with Mr. Brown. He made no threats or promises and did not offer any inducements to Mr. Brown. Further, Mr. Brown did not express any discomfort or complain of any injuries or ask to leave the police vehicle.

[16] Officer Rodriguez stated that he spent two or three hours taking statements, dealing with police officers, preparing an accident report and contacting a reconstruction expert. In his estimation, the area of impact was 0.7 metres north of the north curb of Queen Street East and 3.65 metres west of the west curb of Tracy Street. There was nothing on the road surface or on the sidewalk that indicated any skidding or loss of control before the initial impact with the aluminum pole. Another pedestrian was struck by the SUV and his injuries were minimal.

[17] Officer Rodriguez testified that when he left the scene of the accident, he had not come to any conclusion about what charges he would have laid, primarily because of Mr. Brown’s admission about his brakes being defective. The officer stated that once he determined that impairment was not an issue, “everything slows down as far as charges go; there’s no rush.”

[18] In cross-examination, Officer Rodriquez said that because he was the first officer on the scene, it became his investigation and his responsibility to decide whether or not to place Mr. Brown under arrest or under investigative detention.

[19] Officer Rodriguez agreed that although he knew the victim had died before Mr. Brown was put into the police vehicle, he did not advise Mr. Brown of this. He was not certain if he ever advised Mr. Brown that the victim had died.

[20] Officer Rodriguez testified that his primary reason for putting Mr. Brown into the police vehicle was to get him out of the public eye and to make further observations about whether or not Mr. Brown was impaired. He agreed that he detailed Officer Miller to stay with Mr. Brown primarily to ensure that he did not leave the scene. If he had tried to leave the scene, Mr. Brown would have been placed under detention or “potentially” arrested.

[21] Officer Rodriguez denied that he directed Officer Miller to put Mr. Brown into the police vehicle. He did not advise Mr. Brown that there would be a camera recording system inside the police vehicle. He did not advise Mr. Brown that he did not have to speak with the officer or that anything he said could later be used in a prosecution against him.

Police Officer Matthew Miller

[22] Police Officer Matthew Miller arrived at the scene at approximately 1:41 a.m. About 20 minutes later, Officer Rodriguez told him that Mr. Brown was the driver of the SUV and directed him to put Mr. Brown into the back of his police vehicle.

[23] Officer Miller told Mr. Brown that once he was in the rear of the police vehicle, he would be audio and video recorded. He sat Mr. Brown in the vehicle and activated the recording system immediately.

[24] Officer Miller described Mr. Brown’s demeanour as calm and rather remorseful. Mr. Brown was also concerned about the well-being of the victim and kept asking Officer Miller how the victim was doing. Officer Miller told him that as soon as he had any information, he would pass it along to Mr. Brown.

[25] At 5:20 a.m., Police Sergeant Blain Young advised Officer Miller that the victim had died and directed Officer Miller to place Mr. Brown under investigative detention. At 5:22 a.m. Officer Miller told Mr. Brown that he was under investigation for criminal negligence causing death and read him his rights to counsel.

[26] Officer Miller stated that Mr. Brown appeared to have a good command of English and he understood what the officer was saying to him. Officer Miller did not draw his gun or use force, nor did he make any threats or promises or offer any inducements in order to encourage Mr. Brown to speak to him. Mr. Brown did not ask if he could leave the vehicle.

[27] In cross-examination, Officer Miller stated that Officer Rodriguez did not tell him why he was instructing him to put Mr. Brown into the police vehicle. Officer Miller stated that he was there to assist and he was following Officer Rodriguez’s direction.

[28] He explained that it is police procedure to activate the in-car camera recording system to capture what is being said in the back of the police vehicle and to ensure the safety of the occupant and police officers. He agreed that once Mr. Brown was in the back of the police vehicle, he was technically detained.

[29] Officer Miller agreed that during the time he was with Mr. Brown inside the vehicle, he told Mr. Brown that he could not leave because he was the subject of an investigation. He explained that Mr. Brown was not allowed to leave because Officer Miller’s directions were to have Mr. Brown stay there while the investigation was running its course.

[30] Officer Miller agreed that he did not tell Mr. Brown that anything he said could be used against him in a criminal prosecution.

[31] Officer Miller agreed that Mr. Brown was placed in the police vehicle at 2:11 a.m. and did not leave until approximately 6:23 a.m. He was inside the vehicle the whole time without food or drink.

[32] The officer testified that if Mr. Brown had asked to use the washroom, he would have kept Mr. Brown in the vehicle and would have driven to the police station where Mr. Brown would have been allowed to use the facilities.

[33] Officer Miller testified that before placing Mr. Brown in the police vehicle at 2:11 a.m. he did not provide Mr. Brown with information as to why he was detained because he was not “running the show.” He stated, “I was given a directive and I followed it.” Although he agreed that Mr. Brown was physically detained, he stated that he did not turn his mind to the question of whether it would be a good idea to tell Mr. Brown the reason for his detention.

[34] Officer Miller testified that when he was inside the police vehicle, Mr. Brown used his cell phone several times, including to have a conversation with a lawyer sometime after 2:19 a.m. while Officer Miller was seated in the vehicle. That conversation was captured on the in-car video and audio recording system.

Collision Reconstruction Report

[35] The collision reconstruction report states that at approximately 1:25 a.m. on August 18, 2014, the SUV driven by Mr. Brown was travelling westbound on Queen Street East at an unknown rate of speed. As the SUV approached Tracy Street, it mounted the north-west curb and proceeded westbound along the north sidewalk. The SUV struck a pedestrian who was standing on the sidewalk in front of 412 Queen Street East. The pedestrian was transported to hospital and succumbed to his injuries at 1:51 a.m.

[36] The non-posted speed limit on Queen Street East was 50 kilometres per hour. There were no tires marks from before or after the collision observed at the scene.

[37] On the north sidewalk of Queen Street East, a steel street sign pole and two bicycle ring locking stations were knocked down. A refuse container base was located on the north sidewalk and the other parts of the container were located on the sidewalk near 402 Queen Street East and along the yellow centre line of the roadway.

[38] A damaged bicycle was located in front of 404 Queen Street East at one of the bicycle locking stations with its front wheel lying in the westbound curb lane of Queen Street East.

[39] The location of the debris field suggested that the SUV entered the sidewalk at a shallow angle. A surveillance video showed the SUV approaching the victim along the north sidewalk with the right wheels on the sidewalk and the left wheels on the roadway. After striking the pedestrian, the SUV continued along its path into a tree. Upon striking the tree, the SUV rotated clockwise about the tree and came to a stop.

John Haas

[40] John Haas testified as an expert automotive service technician. On August 27, 2014, Mr. Haas examined the SUV driven by Mr. Brown and concluded that there was no defect in the braking system that would have caused or contributed to the accident. His opinion was that the SUV was functioning properly before the collision.

Were the Statements Voluntary?

[41] The defence takes no issue with the voluntariness of the statements made to Officer Rodriguez when the officer first arrived at the scene.

[42] The Crown seeks to admit into evidence Mr. Brown’s statements made between 2:16 a.m. and 2:18 a.m. about consuming marihuana and looking at his telephone just before the accident happened. It is the Crown’s contention that the statements made by Mr. Brown inside the police vehicle on his cell phone to his mother about what he told the police about his consumption of drugs and looking at his phone just before the accident are also admissible because the statements were not made to a person in authority.

[43] The analysis of the voluntariness of a statement is contextual. All of the circumstances surrounding the making of the statement should be considered in order to determine whether there is a reasonable doubt about the statement’s voluntariness. Relevant factors include:

(a) the existence of threats, promises, or inducements; (b) oppressive conditions; (c) the lack of an operating mind; and (d) police trickery. R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 47-71.

[44] The voluntariness requirement is ultimately concerned, in part, with protecting the right of the accused to make a meaningful choice whether or not to speak to the authorities. R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 35.

[45] The Crown submits that the statements were made at the initial stages of the investigation and no caution was required because the police did not have enough information to advise Mr. Brown that he was detained.

[46] In support of its position that Mr. Brown’s statements were voluntary, the Crown notes that before Mr. Brown was seated inside the police vehicle, the police did not apply handcuffs. Mr. Brown was permitted to use his cell phone. Further, the interaction with Officer Rodriguez lasted less than two minutes. There were no threats, promises, inducements, or oppressive conditions. Mr. Brown’s actions were indicative of an operating mind and at no time did the police resort to any type of trickery. It is submitted that there is nothing in the evidence to suggest that the statements were not voluntary.

[47] The defence agrees that there were no threats, promises, or inducements that led to the statements made by Mr. Brown inside the police vehicle.

[48] The position of the defence is that Mr. Brown was initially detained outside the police vehicle as soon as Officer Rodriguez told Officer Miller to stay with Mr. Brown. Officer Rodriguez agreed that if Mr. Brown had tried to leave at that point, he would have been placed under detention.

[49] The defence submits, in the alternative, that Mr. Brown was detained when Officer Rodriguez directed Officer Miller to put Mr. Brown inside the police vehicle and Mr. Brown made the impugned statements to Officer Rodriguez in response to the officer’s questions. At that point, Officer Rodriguez knew that the victim had died and failed to tell Mr. Brown, despite Mr. Brown’s expressed concerns about the well-being of the victim.

[50] The position of the defence is that the Crown cannot prove beyond a reasonable doubt that Mr. Brown’s statements were voluntarily made in the context of the present case, including the circumstances of the collision and its effect on Mr. Brown, his detention in the police vehicle and the failure of the police to caution him.

[51] In R. v. Brown, 2010 ONCA 622, 268 O.A.C. 168, at para. 10, the Ontario Court of Appeal stated:

Where, as here, the accused was detained, whether or not formally arrested and charged, the presence or absence of a caution is a factor, and in many cases an important factor, in answering the ultimate question of voluntariness. This well-established principle was reiterated by Charron J. in R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405 at paras. 31 and 33.

[52] In Singh, at paras. 32-33, Charron J. held:

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. … 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 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. René Marin, in his text Admissibility of Statements (9th ed. (looseleaf)), 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.

[53] In R. v. Worrall, [2002] O.J. No. 2711, 2002 CarswellOnt 5171 (Sup. Ct.), Watt J., as he then was, came to the following conclusion, as summarized by Brown J. in R. v. Higham, [2007] O.J. No. 2147, 2007 CarswellOnt 3431 (Sup. Ct.), at para. 6:

[A] police officer should tell a person that his answers could be used in evidence in a prosecution brought against him once the officer has information that would alert any reasonably competent investigator to the realistic prospect that the deceased’s death may have been associated with an unlawful act committed by the interviewee, even though he is not arrested or detained.

[54] Officer Rodriguez agreed that if Mr. Brown had tried to leave the accident scene, he would have, at the very least, been placed under detention. Officer Miller agreed that Mr. Brown could not leave because he was the subject of an investigation. Officer Miller acknowledged that the in-car recording system that he activated as a matter of police policy captured what Mr. Brown said to the police, his mother and his lawyer.

[55] Mr. Brown had been sitting inside the vehicle for five minutes before Officer Rodriguez opened the door to speak with him. At that point, Officer Rodriguez knew that the victim had died and did not advise Mr. Brown.

[56] The evidence of Officer Rodriguez was that once he concluded that impairment was not a factor in the accident, there was no need to rush to charge Mr. Brown. However, as I discuss further below, by the time Mr. Brown was placed in the back of the police vehicle, he was detained by the police. The fact of his detention placed him in a more vulnerable position and may have caused him to feel compelled to speak to the police: Singh.

[57] By the time Mr. Brown was placed in the police vehicle, the police should also have reasonably known that the deceased’s death may have been associated with an unlawful act committed by Mr. Brown. Therefore, he should have been advised that he was not required to speak to the police and that anything he said might be used in a prosecution against him: Singh; Worrall.

[58] In my view, the failure to tell Mr. Brown that anything he said could be used in evidence in a prosecution is an important factor because Mr. Brown was simply unaware of the consequences of giving a statement. He did not understand that anything he said could be used against him. Thus, he was unable to fully assess his jeopardy and to make a free and meaningful choice whether or not to speak to the police.

[59] Accordingly, the Crown has failed to discharge its onus of proving beyond a reasonable doubt that the statements were made voluntarily.

Were Mr. Brown’s Charter Rights Infringed?

[60] The defence bears the onus of establishing that Mr. Brown’s rights under ss. 10(a) and (b) of the Charter were infringed.

[61] Pursuant to s. 10(a) of the Charter, Mr. Brown has the right on arrest or detention to be informed promptly of the reasons therefor. Pursuant to s. 10(b) of the Charter, Mr. Brown has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.

[62] The defence submits that Mr. Brown was detained as soon as Officer Rodriguez determined that he would place Mr. Brown under detention if he tried to leave the scene of the accident. Alternatively, Mr. Brown was detained when he was placed into the back of the police vehicle and was not allowed to leave.

[63] The defence submits that it was a violation of s. 10(a) of the Charter for Mr. Brown not to have been advised of the reason for his detention before he made the impugned statements at 2:16 a.m. Further, at no point was Mr. Brown advised that the victim had succumbed to his injuries, despite the fact that Officer Rodriguez was informed of the victim’s death shortly after he arrived at the scene. It is asserted that the information about the victim’s death was not communicated to Mr. Brown by a police officer until 5:22 a.m. when he was placed under investigative detention and read his rights to counsel.

[64] The defence submits further that Mr. Brown should have been informed of his right to retain and instruct counsel immediately upon his detention and the failure to fulfil the informational requirements of s. 10(b) was a clear infringement of this Charter right.

[65] The position of the Crown is that Mr. Brown was not detained until 5:22 a.m. when Officer Miller was told to advise Mr. Brown that he was under investigative detention for criminal negligence causing death, at which time Officer Miller also read Mr. Brown his rights to counsel.

[66] The Crown submits that Mr. Brown was placed into the police vehicle during the early stages of the investigation when Officer Rodriguez was securing the scene and obtaining witness statements. Officer Rodriguez testified that he was concerned about getting Mr. Brown out of the public eye and determining whether Mr. Brown was showing any signs of impairment.

[67] The Crown states that Officer Rodriguez did nothing to convey to Mr. Brown the state of mind that he could not leave the police vehicle. In fact, he told Mr. Brown that he was not under arrest.

[68] The Crown submits that Officer Miller, at this point, only knew that Mr. Brown had been the driver of the SUV and that he was asked to put Mr. Brown into his police vehicle.

[69] The Crown submits that the impugned statements were made within minutes of sitting in the police vehicle with full knowledge that the in-car recording system was operating.

[70] Mr. Brown was not detained when Officer Rodriguez was initially speaking to him immediately after the officer arrived at the scene of the accident. Officer Rodriguez was engaged in preliminary questioning in an attempt to orient himself to the situation that was unfolding in front of him. Although the officer detailed Officer Miller to stay with Mr. Brown in order to ensure that he did not leave, he did nothing to convey to Mr. Brown that he could not leave. See R. v. Chui, 2015 ONSC 552, [2015] O.J. No. 382, at paras. 58-61.

[71] However, by the time Mr. Brown was placed into the back of the police vehicle, he had been identified as the driver of the SUV. At that point, the police had zeroed in on him as someone whose movements must be controlled. See R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 31. Once inside the police vehicle with the recording system activated, Mr. Brown’s liberty was curtailed and he should have been given a caution in order to make an informed choice regarding self-incrimination.

[72] Officer Rodriguez knew that the victim was dead before he spoke to Mr. Brown inside the police vehicle and this information was never conveyed to Mr. Brown, despite the concerns expressed by Mr. Brown about the well-being of the victim.

[73] Officer Rodriguez testified that one of the reasons for putting Mr. Brown into the police vehicle was to ascertain if he was impaired. However, he was also actively eliciting information from Mr. Brown about what happened to cause the accident.

[74] Officer Miller testified that he was not running the show. He was simply following instructions. It is clear from his evidence that Officer Miller never turned his mind to whether Mr. Brown should have been advised that he was under investigative detention and advised of his Charter rights. Officer Miller advised Mr. Brown that he was going to be placed under investigative detention more than three hours after he put Mr. Brown into the back of the police vehicle, although nothing had changed during that time.

[75] In R. v. Nguyen, 2008 ONCA 49, 231 C.C.C. (3d) 541, at para. 20, the Court of Appeal reiterated its holding in R. v. Kelly (1985), 17 C.C.C. (3d) 419, 44 C.R. (3d) 17 (C.A.), at p. 424, that in s. 10(a) the word “promptly” is a positive term meaning “immediately.” The court in Nguyen, at para. 21, went on to say:

Once detained, an individual is at the mercy of state actors. Thus, in circumstances where the informational component of s. 10(a) of the Charter is easy to fulfill – as it was in this case – the breach of the obligation to provide that information cannot be considered a trivial matter. We say this because, as the jurisprudence illustrates, the right against self-incrimination is fundamental to the spirit of s. 10 of the Charter.

[76] In other words, “where the s. 10(a) right information can be easily and quickly communicated without impediment, there is no reasonable excuse not to do so”: R. v. Thompson, 2013 ONSC 1527, 1 C.R. (7th) 125, at para. 120.

[77] In my opinion, it would have been an easy matter to advise Mr. Brown that the victim had died and of the reason for Mr. Brown’s detention, as was Mr. Brown’s right under s. 10(a). Moreover, Mr. Brown could only exercise his s. 10(b) right in a meaningful way if he knew the extent of his jeopardy: R. v. Evans, [1991] 1 S.C.R. 869, 63 C.C.C. (3d) 289, at pp. 886-87.

[78] Pursuant to s. 10(b) of the Charter, the police have a duty to inform a detainee of his right to retain and instruct counsel and a duty to facilitate that right immediately upon detention. In Suberu, at para. 41, the Supreme Court stated:

If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.

[79] It goes without saying that the police must refrain from eliciting evidence from the detainee until he has had a reasonable opportunity to exercise his right to counsel. R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 29.

[80] Accordingly, I find that the police breached their duty to advise Mr. Brown of the reason for his detention as required by s. 10(a) of the Charter and to provide him with his right to counsel.

Should the Statements Be Excluded under s. 24(2) of the Charter?

[81] The defence submits that as a result of the violation of Mr. Brown’s s. 10 Charter rights, the appropriate remedy under s. 24(2) of the Charter is the exclusion from evidence of the statements he made to the police inside the police vehicle and his recorded telephone conversation with his mother inside the police vehicle.

[82] The court must assess and balance the effect of admitting the statements on society’s confidence in the justice system, having regard to the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused and society’s interest in the adjudication of the case on its merits: Grant, at paras. 71-86.

[83] In R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 62, Doherty J.A. explained as follows:

The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society’s interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33-34.

[84] The Crown submits that Officer Rodriguez and Officer Miller acted in good faith when dealing with Mr. Brown and any breach was inadvertent and not egregious. Further, because Mr. Brown was aware that his statements were being recorded, the impact of any breaches on Mr. Brown’s Charter interests was not serious or significant.

[85] The Crown asserts that driving offences involving injuries and death are prevalent in our society and there is a strong interest in adjudicating these cases where any Charter breaches are less serious. Further, the reliable and non-intrusive nature of the evidence weighs against exclusion of the statements.

[86] The defence submits that the seriousness of the police conduct and the significant impact on the Mr. Brown’s rights militate toward exclusion and that the third inquiry (into society’s interests in adjudication on the merits) does not tip the balance back in favour of admissibility.

[87] Courts “have tended to exclude statements obtained in breach of the Charter, on the ground that admission on balance would bring the administration of justice into disrepute”: Grant, at para. 91. In Grant, at para. 98, the Supreme Court held:

In summary, the heightened concern with proper police conduct in obtaining statements from suspects and the centrality of the protected interests affected will in most cases favour exclusion of statements taken in breach of the Charter, while the third factor, obtaining a decision on the merits, may be attenuated by lack of reliability. This, together with the common law’s historic tendency to treat statements of the accused differently from other evidence, explains why such statements tend to be excluded under s. 24(2).

[88] Officer Rodriguez testified that Mr. Brown was not allowed to leave the scene, and that although the officer had not made any determination about the charges to be laid while he was at the scene, he believed that charges would be laid. Officer Rodriguez stated that after he determined that Mr. Brown was not impaired, there was no rush or need to charge him at that time. In other words, Officer Rodriguez did not need to be concerned about whether or not to arrest Mr. Brown until later.

[89] However, Officer Rodriguez did need to be concerned that, whether or not he was prepared to arrest Mr. Brown, Mr. Brown was detained in the police vehicle and therefore entitled to be informed of the reason for his detention and of his right to consult counsel. Officer Rodriguez apparently did not turn his mind to Mr. Brown’s rights in this respect even though he was the officer in charge of the investigation, at least initially. Officer Miller likewise abrogated his responsibility to advise Mr. Brown of his rights apparently because he understood that the investigation was not his “show.”

[90] When Officer Rodriguez spoke to Mr. Brown, he knew that the victim had died. Yet, Officer Rodriguez did not inform Mr. Brown that the victim had died.

[91] I find that the Charter-infringing conduct of Officers Rodriguez and Miller was serious. Their actions and inactions in failing to advise Mr. Brown of the reasons for his detention constitute a departure from the standard of conduct expected of them.

[92] With respect to the second inquiry, the potential to harm the repute of the justice system varies with the seriousness of the impingement on the individual’s protected interests: Grant, at para. 95. This was not a technical breach. Mr. Brown was detained and he was not informed about his ss. 10(a) and (b) Charter rights before information about the offence was elicited from him and captured on video. Thus, the impact on his Charter-protected interests was significant.

[93] The Crown argues that the statements are reliable evidence because they were recorded. Further, they are critical to the Crown’s case. I would respectfully disagree. When the statements were made, Mr. Brown did not have a full awareness of the choice he had regarding whether to speak to the police or of the consequences of making his statements because he was not informed of his right to remain silent and his right to be protected against self-incrimination. This raises concerns about the reliability of the content of Mr. Brown’s statements. The fact that the statements were recorded does nothing to alleviate these concerns. Moreover, exclusion of the statements does not preclude the Crown from proceeding with the prosecution.

[94] Balancing the effect of admitting the statements on society’s confidence in the justice system, having regard to the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of Mr. Brown, and taking into account concerns about the reliability of the statements and the fact that the statements are not critical to the Crown’s case, I am of the opinion that the statements made to Officer Rodriguez while Mr. Brown was detained in the police vehicle should not be admitted into evidence.

[95] The Crown submits that the statement to Mr. Brown’s mother should be admitted into evidence because it was not made to a person in authority. In my view, the only reason that the statement exists is because Mr. Brown was detained in the police vehicle and everything he said was being recorded.

[96] In this regard, I find to be helpful the case of R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 72, where John Laskin J.A., writing for the court, held that the following considerations should guide a court’s approach to the “obtained in a manner” requirement in s. 24(2):

• The approach should be generous, consistent with the purpose of s. 24(2).
• The court should consider the entire “chain of events” between the accused and the police.
• The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct.
• The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.
• But the connection cannot be either too tenuous or too remote.

[97] Mr. Brown made the statement to his mother immediately after his statements to Officer Rodriguez. Mr. Brown told his mother what he told Officer Rodriguez about consuming drugs and about looking at his telephone just before the accident happened. Taking into account the entire chain of events and the temporal connection between the evidence and the breach, I conclude that the statement made to Mr. Brown’s mother was obtained in a manner that infringed his Charter rights.

[98] I am of the opinion that the statement to Mr. Brown’s mother should not be admitted into evidence for the reasons discussed above in relation to the statement Mr. Brown made directly to Officer Rodriguez while detained in the police vehicle.

[99] Accordingly, the statements made by Mr. Brown inside the police vehicle about consuming “weed” and looking at his phone just before the motor vehicle accident and the recorded telephone conversation Mr. Brown had with his mother inside the police vehicle are excluded from evidence at his trial.

Dunnet J.

Released: May 2, 2017