COURT FILE NO.: 16/575 DATE: 2017/07/04 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN v. R.D.T.

BEFORE: Justice I.F. Leach

COUNSEL: Elizabeth Wilson, for the Crown Gordon D. Cudmore, for the Accused

HEARD: February 24 and 28, 2017

Endorsement

[1] For the reasons outlined below, this particular pretrial decision deals only with the voluntariness of statements made by the accused herein during a formal police interview, although other issues, (i.e., hearsay issues formally raised by the Crown and contemplated Charter issues to be raised by the accused), remain outstanding.

[2] As this matter is subject to an order restricting publication, made pursuant to s.486.4(2.1) of the Criminal Code of Canada, (“the Code”), I will refer to the accused and other lay persons involved only by their initials.

Overview and Procedural History

[3] The accused R.D.T. is charged with the following three offences:

i. sexual assault, contrary to section 271 of the Code; ii. sexual interference, contrary to section 151 of the Code; and iii. sexual exploitation, contrary to section 153 of the Code.

[4] The charges were laid following the tragic suicide of J.A., (a 15-year-old step-sister of the accused, and his alleged victim in relation to the offences charged), in the autumn of 2015.

[5] I will have more to say later about the specifics of underlying events, based on evidence presented to me during the course of a voir dire. However, by way of brief initial overview and summary:

• When J.A. was found unresponsive in her bedroom, owing to an apparent suicide attempt, police were called to investigate. In the relevant bedroom, the police discovered a white-covered personal diary, maintained by J.A., which contained entries indicating that J.A. had been the victim of unwanted sexual contact with the accused.
• J.A. died the next day.
• Following J.A.’s death, the police spoke with one of her friends, H.L., who indicated that J.A. had maintained another personal diary with an animal print cover. The police searched the relevant bedroom again, and located a second diary. That second diary also contained entries indicating that J.A. had been the victim of unwanted sexual contact with the accused.
• At or about the same time, another friend of J.A., H.D., came forward to advise family members that J.A. had shared confidential information, in the weeks before her death, indicating that she had been the victim of unwanted sexual contact by a step-relative. The police interviewed H.D., who provided further information concerning the allegations made by J.A., including information that J.A. had identified the relevant step-relative through details that included the first name of the accused. According to H.D., J.A. also informed H.D. that J.A. had shared the confidential information with only one other individual; i.e., a male friend named N.A.
• The police interviewed N.A., who confirmed that J.A. had shared confidential information with him, indicating that J.A. had been the victim of unwanted sexual contact by her stepbrother, (whom J.A. identified by name at the time, but whose name N.A. could no longer remember at the time of his police interview).
• The police then interviewed the accused, who admitted during the course of the interview that he had engaged in inappropriate sexual contact with J.A. prior to her death. The accused was arrested during the course of the interview, and spoke with duty counsel. The police interview of the accused thereafter resumed and continued, with the accused confirming many of his earlier admissions and making further admissions regarding inappropriate sexual contact with the accused.

[6] To understand the nature of the application material now before the court, and the circumstances which have led to these reasons having a more narrow focus than that material might otherwise suggest, some procedural background is required. In that regard:

• Following a judicial pretrial held in August of 2016, this matter was spoken to in the next assignment court, held on September 9, 2016. On that date, with the input of Crown counsel and counsel appearing as agent for defence counsel of record, a timetable was set for seeing this matter through to completion. In particular:
  • the matter was adjourned to November 28, 2016, for the scheduling of an anticipated s.278.3 defence application, in relation to disclosure of J.A.’s diaries, to be heard within the trial sittings commencing that day;
  • the matter would then be adjourned to February 13, 2017, for the scheduling of 3-4 days allocated to the hearing of anticipated Crown and defence pre-trial applications; and
  • the matter thereafter would be adjourned to September 5, 2017, for the scheduling of a trial, (estimated to last 3 days), within the trial sittings scheduled to start that day.
• On November 28, 2016, the parties appeared as scheduled to address the s.278.3 defence application, at which time the Crown consented to the granting of specified disclosure relief, granted that day, in relation to the diaries. After imposition of the s.486.4 publication ban, noted above, the matter was adjourned to February 13, 2017, pursuant to the established timetable.
• On or about January 20, 2017, the Crown delivered its pretrial application record, including a notice of application requesting the following relief:
  • an order permitting the filing of J.A.’s personal diary entries as evidence at trial;
  • an order permitting the admission, at trial, of hearsay evidence from H.D. and N.A. regarding allegations made to them by J.A. prior to her death; and
  • an order permitting the admission, at trial, of the video recorded statements made by the accused to Detective McGregor on December 9, 2015.
• On January 26, 2017, the Crown supplemented its application record by delivery of a factum and book of authorities dealing with the issues of hearsay and voluntariness raised by the Crown’s pretrial application.
• On February 9, 2017, the Crown also delivered a brief of transcripts, containing transcripts of the video-recorded police interviews of H.D., N.A. and the accused.
• On February 13, 2017, (the first day of the three week trial sitting starting that day), the matter came back before me, pursuant to the established timetable, for the scheduling of appropriate pretrial application hearing time within that trial sitting. By that time, the only pretrial application before the court was that brought by the Crown, described above. The defence had brought no pretrial application whatsoever. Nor had the defence filed any material responding to the Crown’s pretrial application. The matter was assigned two days of hearing time, on February 24 and 28, 2017, (a Friday and following Tuesday), on the understanding that it might have to be continued later in the trial sitting, (on March 2, 3 or 6, 2017), if the allocated two days proved to be insufficient to complete hearing of the pretrial application issues before the court.
• On February 21, 2017, (i.e., three days before the scheduled hearing of the Crown’s application), defence counsel filed a responding factum that not only contested the relief being sought by the Crown in its application, but also raised arguments asserting that there had been breaches of the accused’s rights guaranteed by sections 7, 9, 10 and 11(a) of the Canadian Charter of Rights and Freedoms, (“the Charter”). Reference also was made to s.11(c) of the Charter, although that appears to have been a typographical error, as remaining portions of the factum refer only to s.11(a) of the Charter, and not s.11(c). The factum went on to argue that the accused’s statements to Detective McGregor accordingly should be excluded, pursuant to s.24(2) of the Charter. It also was argued that such an exclusion would militate in favour of also excluding the contemplated hearsay evidence sought to be admitted by the Crown, (i.e., in relation to the diary entries of J.A. and the testimony from J.A.’s friends concerning allegations said to have been made to them by J.A. before her death), since the corroboration offered in that regard by the accused’s statements to Detective McGregor would no longer be available to the Crown. All of these arguments were raised and advanced only by way of the responding factum delivered by the defence. No formal cross-application had been delivered by the defence. Nor were the arguments outlined in the factum supported by any related defence application material, or any book of authorities.
• Later on the afternoon of February 21, 2017, Crown counsel sent an email message to the trial co-ordinator, copied to defence counsel. Amongst other things, Crown counsel indicated:
  • that the factum filed that day by defence counsel suggested the bringing of a defence Charter application;
  • that the Crown nevertheless wanted to proceed with the scheduled hearing of its pretrial application and associated voir dire dealing with the hearsay and voluntariness issues raised by the Crown; and
  • that further time would be needed for preparation of material associated with the Charter application intended by the defence, and argument of that application.
• By the time the matter came back before me as scheduled, on February 24, 2017, the defence still had not delivered any formal cross-application of any kind, nor any material or authorities in support of the Charter-related arguments raised in the responding factum filed by the defence. The Crown understandably therefore had not filed any material responding to the intended Charter arguments and requests for relief not yet formally advanced by the accused. In the circumstances:
  • Defence counsel confirmed that there was no reason for the late raising of Charter issues, or the absence of a formal cross-application and materials addressing such issues, and accepted full responsibility for any ensuing scheduling complications and delay. [^1]
  • Crown counsel indicated that the Crown would not be objecting to the defence raising such Charter issues, but confirmed that the Crown was not in a position to address such issues, (i.e., whether evidence of the accused’s statement to the police should be excluded owing to alleged violation of the accused’s rights under the Charter), without having a further opportunity to review, consider and respond to any and all material the defence had filed or would be filing in that regard.
  • Both counsel also confirmed my preliminary view that issues relating to admission of the hearsay evidence could not be determined without determination of the Charter issues, insofar as such hearsay issues turned in part on whether evidence of the accused’s statement to the police would be available to provide a degree of corroboration for the hearsay allegations of accused misconduct by J.A. in her diary entries and verbal statements to her friends.
  • Crown counsel submitted that it nevertheless would be possible and appropriate to deal with the voluntariness issues in advance of the Charter and hearsay issues. Defence counsel initially was uncertain whether that was the case.
  • Both counsel nevertheless confirmed that all concerned were prepared to embark on hearing of the anticipated voir dire evidence relating to the voluntariness, hearsay and Charter issues, including anticipated examination and cross-examination of Detective McGregor, the sole witness contemplated by the Crown.
  • Relying on the submissions of counsel, and in order not to waste the court time already allocated to the matter, I directed that we would embark on presentation of the contemplated voir dire evidence in relation to the voluntariness, hearsay and contemplated Charter issues, with my making a ruling thereafter as to whether the voluntariness issue could be dealt with discretely in advance of the hearsay and Charter issues. I noted, in relation to the latter, that I had been provided with no authority indicating that issues of voluntariness, (which existed at common law and predated the Charter), were so inextricably linked with Charter issues that they could not be addressed and resolved separately, without prejudice to the ability of an accused to raise and argue Charter issues as well.
  • During the course of the ensuing voir dire, both Crown counsel and defence counsel then confirmed that they were content, after conclusion of the voir dire evidence, to have me focus upon and decide the voluntariness issues raised by the Crown’s application, before further steps were taken to address any hearsay and Charter issues that might then remain for consideration.
  • During the course of the interruption that occurred during the scheduled two day hearing of the voir dire, Crown counsel filed a supplementary book of authorities providing additional cases dealing with voluntariness and the provision of cautions by the police. Defence counsel chose not to file any authorities. [^2]

[7] In the result, evidence led during the voir dire hearing before me on February 24 and 28, 2017, extended to issues not restricted to voluntariness, including the hearsay evidence the Crown asks to lead at trial, and evidence potentially relevant to the Charter issues the accused intends to raise formally.

[8] However, oral submissions and argument during the hearing were focused on whether or not the accused’s statements during his formal interview with Detective McGregor should be considered voluntary, so as to render them admissible at trial.

[9] By mutual agreement and consent of the parties, that was the question I was asked to address and determine first, as a discrete issue, with matters relating to further filings and submissions addressing hearsay and Charter issues being deferred to a time following release of my decision concerning voluntariness.

[10] Moreover, I independently was satisfied that embarking on the voluntariness inquiry as a discrete initial issue, without simultaneous argument of the contemplated hearsay or Charter issues, was appropriate in the circumstances. In particular:

a. In relation to the intended hearsay arguments, it seemed to me that both parties would benefit from knowing what statements of the accused might be excluded, by such a determination concerning voluntariness, before being called upon to address the level of corroboration that the accused himself may or may not have provided for the hearsay evidence contemplated by the Crown. b. In relation to the Charter issues, I was mindful of the reality that considerations of voluntariness and the corresponding “confessions rule” predate and exist independently of the Charter, as well as the Supreme Court of Canada’s confirmation, in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paragraphs 29-31, that the Charter did not subsume such common law rules, and that the latter arguably is more powerful insofar as a violation of the confessions rule always warrants exclusion in contrast to the balancing exercise mandated by Article 24(2) of the Charter. Similarly, I was mindful of the Supreme Court of Canada’s finding that there is a functional equivalence between the tests relating to the confessions rule and section 7 of the Charter, at least in the context of police interrogation of a person in detention where the detainee knows he or she is speaking to a person in authority. See R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at paragraph 8.

[11] The above procedural history hopefully will help to explain why my findings of fact herein extend beyond those strictly relevant to the voluntariness issue, and why the analysis and decision which follow have been limited to that issue for the time being.

Evidence and Findings

[12] During the course of the voir dire, evidence led by the Crown included, on consent, the following items submitted with the Crown’s application material:

• copies of selected diary entries from the personal diaries maintained by J.A., which were discovered after her death and included in the application record filed by the Crown; and
• a “Brief of Transcripts”, containing transcripts corresponding to the video recordings made during the successive police interviews of H.D., N.A. and the accused.

[13] The Crown also led further evidence through one police witness: Detective Constable Jeffrey McGregor. In addition to his oral testimony, Detective McGregor introduced and presented, as unchallenged exhibits:

• a video recording of the police interview of H.D., conducted by Detective Scott Campbell;
• a video recording of the police interview of N.A., conducted by Detective McGregor; and
• a video recording of the police interview of the accused, conducted by Detective McGregor.

[14] In that regard, copies of the video recording were played in open court during the course of the voir dire, but disks of the recording also were filed as exhibits.

[15] While defence counsel cross-examined Detective McGregor, the defence chose to lead no evidence of its own during the course of the voir dire.

[16] In the course of these reasons, I will have more to say about certain specifics of underlying events. However, based on the voir dire evidence presented, the following findings of fact form the basis of my analysis:

• R.D.T. was born in August of 1992, and J.A. was born in September of 2000, such that the accused was approximately 8 years older than his alleged victim.
• In or around 2008 or 2009, (when R.D.T. was approximately 16 or 17, and J.A. was approximately 8 or 9), the biological father of R.D.T. and the biological mother of J.A. entered into a relationship. Shortly after the relationship began, J.A. and her mother came to live in the same residence occupied by R.D.T. and his father.
• In August of 2010, the blended family was expanded when the union of R.D.T.’s father and J.A.’s mother led to the birth of another child. All five members of the blended family continued to live in the same residence until R.D.T. left the family home at the age of 18 or 19 to thereafter maintain a separate residence. He nevertheless continued to return to the home for visits, including weekly dinners.
• From at least September of 2014 to the time of her death, J.A. seems to have maintained personal diaries. In that regard:
  • The earliest known diary has an “animal print” on the cover, (and will be described hereafter as the “animal print diary”). It contains 58 numbered and chronologically dated entries made during the period from September 1, 2014, to September 6, 2015, inclusive. The entries are written in pencil, pencil crayon and ink.
  • The last known diary has generally white covers, (and will be described hereafter as the “white diary”). It contains 12 numbered and chronologically dated entries made during the period from September 26, 2015, to November 12, 2015, inclusive. Once again, the entries are written in pencil, pencil crayon and ink.
  • On or about June 22, 2015, J.A. made an entry in her animal print diary. [^3] The latter part of the entry, with original punctuation and spelling, reads as follows: “earlier [R.] tried to put his hand down my pants again whished that he would stop. he always does this and its gross. he’s always trying to get in my pants I don’t wanna tell anyone Because I might get in trouble but I didn’t do anything wrong its [R.] trying to be a pedo rapist. Im sorry I don’t know what I did But please Stop.”
  • The biological father of the accused and the biological mother of J.A. were formally married in July of 2015.
  • On or about July 12, 2015, J.A. made another entry in her animal print diary. The entry reads, in part, with original punctuation and spelling, as follows: “So yesterday my mom got married. (yeah) … I also told [a female friend identified by name] I DiDn’t like [R.] well she asked why I looked so uncomfortable around him, I said he was a perve as she then goes on of saying he’s never touched you right? my silence was her answer. She new! as I quickly thought to say I Don’t want to talk about it Cause Im tired and as I rolled over and went to sleep.”
  • On or about November 9, 2015, J.A. made an entry in her white diary. The entry included a numbered list under the title “Things no one really knows about me”. The fifth item on that list reads as follows: “My Step Brother has held me against my will and I was sexually touched. Rape.” (R.D.T. was J.A.’s only step-brother.)
  • On or about Thursday, November 12, 2015, at or around 5pm, (according to a notation indicating “5-?”), J.A. made another and final entry in her white diary. It conveyed, in various words, that J.A. wanted to die.
• Later on the evening of November 12, 2015, J.A. was found unresponsive in her bedroom of the family residence, following apparent efforts to hang herself. Efforts were made to secure immediate medical attention for J.A., including hospitalization. In addition to uniformed police officers, Detective McGregor attended at the family’s residence and began looking into what had happened. He was looking in particular for any note J.A. may have left, as the making and leaving of such notes are common in relation to such incidents. On a lower bunk bed in the bedroom of J.A., Detective McGregor found the white diary, laying open to the last entry made by J.A. a few hours earlier.
• On Friday, November 13, 2015, J.A. died from her self-inflicted injuries. The cause of death was confirmed to be death by hanging. That same day, one of J.A.’s female friends, H.D., went with her mother to visit grieving members of J.A.’s family, and to volunteer troubling information said to have been conveyed orally by J.A. to H.D., in confidence, in the weeks before J.A.’s death. The information included indications that J.A. had been touched inappropriately and “molested” by a relative when he visited J.A.’s home for weekly dinners. H.D. thought J.A. had indicated the relative in question was a “step-cousin”, and that the weekly dinners in question had occurred on Sundays.
• On November 14, 2015, Detective McGregor continued his investigation by meeting with H.L., another of J.A.’s female friends. During that meeting, H.L. spoke of J.A. maintaining a diary with an animal print on the cover. When shown the covers of the white diary discovered by Detective McGregor, H.L. indicated that was not the diary of J.A. that H.L. knew about, and which H.L. had been describing. Acting on that information, and with the permission of J.A.’s mother, Detective McGregor then returned to J.A.’s bedroom with a colleague, Constable Peck, to conduct a further search. Constable Peck located the animal print diary, described by H.L., in the drawer of a cabinet in J.A.’s bedroom. It too then was seized by Detective McGregor. As Detective McGregor acknowledged during cross-examination, a review of both diaries maintained by J.A., including the particular entries outlined above, led Detective McGregor to expand the scope of his investigation; i.e., to include not only the circumstances of J.A.’s death, but also the possibility that J.A. had been the victim of a sexual assault, (as Detective McGregor described it).
• On November 19, 2015, H.D. was interviewed by Detective Campbell, another officer who was assisting with investigation into the circumstances of J.A.’s death. In the course of that interview, (which was recorded on audio and video), H.D., then 15 years old, provided indications that included the following:
  • H.D. and J.A. had known each other since the fourth grade, and had thereafter been in the same class each year up until the time of J.A.’s death.
  • J.A. sent H.D. a text on the morning of Tuesday, November 3, 2015, asking to meet and speak during the school lunch break. (Although H.D. initially had indicated to J.A.’s grieving relatives that the relevant meeting and conversation with J.A. had taken place approximately three weeks before J.A.’s death, H.D. subsequently had been able to locate the relevant text message from J.A. to confirm the precise date.)
  • When H.D. and J.A. then met over that lunch hour, on a bench in front of their school:
    • J.A. initially expressed a desire to relocate to a smaller space, as she did not want others to hear what she was about to say. H.D. could tell J.A. wanted to tell her something, but also that it was hard for J.A. to say it.
    • J.A. then indicated that her older sister had exposed her to sexual molestation when J.A. was approximately 8 years old, but that had stopped and had not happened for a while.
    • J.A. also indicated, after a two minute pause, that a male relative named “R.”, (saying the full first name of the accused to H.D.), and whom H.D. thought J.A. also had identified as a “step cousin”, would come to J.A.’s house for weekly dinners, (which H.D. thought J.A. had said took place “every Sunday”), after which the relative in question would go alone upstairs with J.A. to her bedroom, to “catch up”. However, J.A. said the relative then had started “touching” and “feeling” J.A. “inappropriately”. While never indicating to H.D. “exactly what happened”, and not describing to H.D. “in detail” what had happened, J.A. responded positively to H.D.’s inquiry asking whether J.A. had been “molested”. H.D. also was made to understand that “it wasn’t to the point where it got to like rape or anything”, because H.D. had wanted to know that as well. In any event, J.A. repeatedly informed H.D. that, “after the fact”, J.A. had felt she was going to be sick to her stomach.
    • J.A. indicated to H.D. that she previously had told only one other person about such things; i.e., a male friend named N.A., (whom J.A. had dated “around Halloween” of 2015, but who also had been friends with J.A. “for a really long time”). In particular, J.A. informed H.D. that J.A. previously had shared the same confidential information with N.A. over Facebook, as J.A. “felt really close to him at the time”.
    • J.A. told H.D. not to say anything to anyone about the information J.A. had shared. At the time, H.D. agreed and informed J.A. that she would be ready to support J.A. when J.A. was “ready to say stuff”.
  • After J.A’s death, however, H.D. felt that J.A. had told her the relevant confidential information “for a reason”. H.D. therefore felt she could not “keep it in”, and instead “had to tell the people that needed to know”, including J.A.’s family.
• On December 2, 2015, N.A. was interviewed by Detective McGregor. At the outset of the interview, Detective McGregor expressly advised N.A. that he could have an adult sit in on the interview if N.A. wanted that, but that N.A. was “not in any trouble” such that there was no “need to caution” N.A. in the circumstances. In the course of the ensuing interview, (which was recorded on audio and video), N.A., then 13 years old, provided indications that included the following:
  • J.A. felt N.A. shared and understood her feelings of depression, to the point where she could tell him “pretty much anything” without judgment. As a result, she talked to him “about a few things”.
  • One thing J.A. told N.A. “not to tell anybody” about was information shared with N.A. in October of 2015, during text communications exchanged via Facebook. In particular:
    • N.A. was in his room on his I-pad, and J.A. indicated she was in her room on her phone, when J.A. sent him a message about “being depressed”.
    • J.A. then described “one time” when “her stepbrother came down from her dad’s place”, came to J.A.’s house, went upstairs to J.A.’s room as she “started to draw or whatever”, and “closed the door”. J.A. and her stepbrother then were sitting in her room, on her bed, when the stepbrother “started rubbing her leg or something like that, trying to turn her on”. J.A. told the stepbrother to “get his hands off her”, but he then “kind of pinned her up against the wall and started to put his hand down her pants”. J.A. “was screaming”, and “telling [her stepbrother] to stop, but he didn’t wanna and he didn’t stop”, and was “putting his hands down her pants”. J.A. then was screaming “Mom, help” or “Help Mom”, while pulling the stepbrother’s hand out from her pants.
    • J.A. indicated her stepbrother’s name at the time she shared that information with N.A., but N.A. could no longer remember the stepbrother’s name by the time of his interview with Detective McGregor
    • J.A. did not say whether or not her stepbrother ever put his fingers inside her.
    • N.A. also was not sure when the incident described by J.A. had happened.
    • J.A. did ask N.A. “not to tell a single person” about the information she had shared.
    • N.A. told J.A. the “wrong thing” the stepbrother had done to her would “never happen again” because he was sure that J.A., her mom and others would not “let it happen”, (although N.A. also did not think J.A.’s mother knew about it).
    • N.A. and J.A. never discussed the shared confidential information again before her death.
  • At the time of his interview with Detective McGregor, N.A. emphasized that J.A. had asked him “not to tell anybody” about the incident with her stepbrother, and that Detective McGregor was the first and only person he had told about the stepbrother incident J.A. had described. N.A. also emphasized that he “believed it happened to her”, “one hundred percent”, and felt it be “the truth” because he knew J.A. “very, very well” and “she wouldn’t lie about any of that”.
  • N.A. nevertheless no longer had the relevant Facebook text messages. J.A. had asked him to delete the messages, “so that…if [N.A.’s] mother came in or something, she wouldn’t see them”. N.A. then also deleted his Facebook account entirely, and made a new one, when random people began “tagging” his former account with unwanted posts.
• On the afternoon of December 7, 2015, at approximately 4:05pm, Detective McGregor attended at the residence of the accused, in an attempt to speak to R.D.T., but the accused was not at home. Detective McGregor instead spoke with the accused’s landlord, leaving Detective McGregor’s contact information, (including a telephone number and extension at the local police service), along with a request for the accused to call him.
• On the afternoon of December 8, 2015, at approximately 12:57pm, the accused telephoned Detective McGregor as requested. He was told by Detective McGregor that the officer was “currently speaking or looking to speak to families [and] friends of [J.], in regards to circumstances around her death”. The accused was asked if he could “make time to come in and speak to” Detective McGregor. The accused agreed, and made an appointment to meet with Detective McGregor the following day, at 1pm, at an annex police facility located near to the community’s main police facility.
• On the morning of December 9, 2015, Detective McGregor was obliged to attend out of town on another matter, making it impossible to return to Stratford in time for the scheduled 1pm meeting with the accused. At Detective McGregor’s request, the meeting accordingly was rescheduled to 2:30pm the same day. At or about that time, the accused voluntarily attended at the agreed police annex location for his first “face to face” meeting with Detective McGregor, (who was not in uniform but wearing a jacket, shirt and tie), and an ensuing interview. In that regard, Detective McGregor testified, and I accept:
  • that the purpose of the meeting was for Detective McGregor to speak with the accused “in regards to the diary entries [noted above], about J.’s death, and about the things that her friends [H.D. and N.A.] had said”;
  • that Detective McGregor had formed a suspicion before commencement of his interview of the accused, (based on the diaries of J.A., the police interviews of H.D. and N.A., and Detective McGregor’s knowledge of a an offence in or about 2011 involving similar conduct between the accused and a person other than J.A.), that the accused was the stepbrother described in the aforesaid diary entries and comments made by J.A. to H.D. and N.A., and that the accused possibly could have assaulted J.A.;
  • that Detective McGregor nevertheless did not yet subjectively believe that he had grounds to arrest the accused; [^4]
  • that Detective McGregor had said nothing to the accused about aspects of the investigation relating to sexual assault, and instead had spoken to the accused only about investigation concerning the circumstances of J.A.’s death, in respect of which the accused was volunteering to provide help; [^5]
  • that preliminary conversation between Detective McGregor and the accused, in the front meeting area of the relevant police annex facility, prior to commencement of the formal interview depicted in the video-recording of what then took place in the interview room, was limited to Detective McGregor thanking the accused for coming in and Detective McGregor introducing himself, without the giving of any form of promises or threats to the accused, and without any caution or recitation of rights being made to the accused, before Detective McGregor then led the accused into the interview room; and
  • that, before and during the interview, the accused seemed articulate and appropriately dressed, without any exhibiting any indications of drug or alcohol consumption, or any other abnormal behaviour that would suggest concerns about his condition.
• To the knowledge of the accused, the ensuing interview between Detective McGregor and the accused on December 9, 2015, took place in a room equipped with audio and video recording equipment, and a recording was made of the interview. (The recording was made and monitored by another police officer, Detective Constable Johnson, with whom the accused nevertheless had no contact.) The interview began at approximately 2:30pm, and continued with occasional pauses until 3:26pm. While particulars of the interview are addressed further in the course of my analysis below, they include the following:
  • The room’s cameras and microphones were drawn to the attention of the accused, (who independently had noticed them already), and Detective McGregor repeatedly indicated that the interview was being recorded. The stated purpose of that being done was to “capture” and provide an “accurate reflection” of what was said during the interview.
  • In the early stages of the interview, nothing was said about the accused being suspected of any offence. Detective McGregor instead described the intended purpose of the interview to the accused in a number of different ways. For example, Detective McGregor said the following:
    • “I just turned my phone into airplane mode… I just don’t want any distractions, so we can have a nice chat”.
    • “I appreciate you coming down, uh, here to talk a little bit about your sister, your stepsister”;
    • “What I’m trying to do, R., is, uh, talk to as many people as I can, um, friends and family members. Um, there is a lot of people…um, who cared for J. And, uh, see if I, I can’t come up with some answers.”
    • “What always happens in cases, um, such as this is…is you’ll, you’ll start talking to people and, and because of her age and the nature of her death, sometimes more questions come up than answers…and I think that’s kind of what’s been happening in this case with, with your sister….and, uh, and I do appreciate you coming in and talking to me and, and, uh, you know, I’ve talked to a number of people who, who have been close and affected by this as well.”
    • “What, what I’ve been telling everyone, um, in regards to J.’s case is that, um, you know, there’s things that have come up, um, that I need to talk and get into more detail with people about.
    • “I wanna talk about the family dynamic, things like that with you, to try and get a better understanding.”
    • “You can understand why I’m doing this I think. I think you can understand why it’s important to talk to people about J….at her age. … And ultimately all I want from everyone I speak to, including you, um, is the truth. … And, um, I think that there’s some factors that…contributed to, to J.’s life and I wanna talk about those factors with everybody and, and they’re different factors for different people. … And different people know different things.”
  • As for the accused being advised of rights and/or cautioned in the early stages of the interview, and corresponding initial indications by the accused as to his possible understanding of his rights and the intended purpose of the interview, relevant comments exchanged between Detective McGregor and the accused were limited to the following: McGREGOR: “…And I always wanna make sure that people are comfortable talking to me and know that they, you know, as Canadian citizens, have some things that they can do and if, I don’t know if you spoke to a lawyer before coming in to speak to me today. ACCUSED: “No, I, I just-, not even-, I, I can’t even afford one.” McGREGOR: “Well, there’s duty counsel…” ACCUSED: “Yeah.” McGREGOR: “…which is free…” ACCUSED: “No, I didn’t… McGREGOR: “…right?” ACCUSED: “…really feel much n-, need to be able to do that anyways.” McGREGOR: “I appreciate that. And… ACCUSED: “I just…” McGREGOR: “…I just wanna have an honest conversation.” ACCUSED: “No, it’s - , yeah, no. Like, uh, when I talked to you on the phone and stuff I was just like, okay. I was-, I wanted-, well, I, I wanted to be able to share, you know, like I want-, my sister was something else to and he-, she meant a lot to me as-, and stuff too. Like when they first came into my life, like…” McGREGOR: “And that’s good to hear. …” And later: McGREGOR: “So a-, and that’s why I do this, just to get an accurate recording so that we know that anything we, we talk about is recorded accurately, and I think… ACCUSED: “Oh yeah…” McGREGOR: “…you can…” ACCUSED: “…no.” McGREGOR: “…understand that.” ACCUSED: “Uh, uh, you know what, I have no problem with it. Like, I mean, if it helps in any way to (inaudible). McGREGOR: “And, you know, I told you that the room is recorded. That door is closed. It’s not locked, okay? At anytime you’re free to go, uh, if you don’t wanna talk. Um, uh, things are gonna-like things-, it’s difficult already for you …” ACCUSED: “It is.” McGREGOR: “…to talk about this…” ACCUSED: “It is. I haven’t…” McGREGOR: “…so…” ACCUSED: “…talked much about her in-, since it happened.” McGREGOR: “And I, I can appreciate that. We’re guys, right?” ACCUSED: “Yeah, we try not to… McGREGOR: “So, um… ACCUSED: “... (inaudible). McGREGOR: “…you know, if at any time you wanna get up, you can get up, okay?” ACCUSED: “Thanks. No, that’s-, thank you.” [^6]
  • Over the course of the first half of the interview, (from approximately 2:30pm to 3:15pm), questioning and extended answers from the accused addressed general family history, interactions and living arrangements, including indications by the accused that he attended for weekly family dinners after moving out of the family home, (with the accused saying he thought that happened on Mondays), and that he would visit his stepsister in her room from time to time to watch videos and talk about common interests.
  • Approximately half way through the interview, (at approximately 3:15pm), Detective McGregor began to direct the conversation more specifically to the subject of matters that may have been bothering J.A., leading to her suicide. For example, he asked the accused: ‘Do, do you have any ideas in your own head of what might have contributed to J. wanting to, to hurt herself and ultimately take her own life?”
  • A relatively short time later, Detective McGregor began to move the conversation towards the subject of the revelations contained in the diaries J.A. was maintaining. For example, at approximately 3:21pm, Detective McGregor asked the accused if J.A. was “an honest person”, and at approximately 3:24pm, said this: “So, R., one, one of my issues here is that, um-, and I wouldn’t say issues as much as, um, fact findings is that J. kept diaries.” That was followed quickly by other indications from Detective McGregor which included the following:
    • that the diaries contained “events that had happened to her that shaped her, fears that she had, um, all of that sort of thing”;
    • that J.A. undoubtedly “left them to be found”;
    • that the diaries were “revealing” and included things about people that were “not flattering”;
    • that Detective McGregor wanted to know if the accused thought there was any reason Detective would find some “not flattering” things in the diaries about the accused; and
    • that Detective McGregor had been “talking to a lot of people”, and had found that things indicated by J.A. in her diaries had been “corroborated by other people”, including “a couple of very close friends”.
  • At that point, (approximately 3:27pm), the accused indicated that he hated “to interrupt”, but wanted to ask if he could use the “bathroom” as he really needed to “pee”. Detective McGregor quickly said “You betcha”. Although Detective McGregor’s transcribed comments indicate that he would “take” the accused to the “bathroom”, subsequent non-transcribed comments after the two men stand up, which nevertheless are audible on the video recording, indicate that Detective McGregor simply provided the accused with directions as to where the bathroom in the police facility was located. In cross-examination, Detective McGregor testified, and I accept, that he in fact did not go with the accused to the facility’s washroom.
  • The interview resumed a very short time later, at approximately 3:28pm, in the same room. After some further discussion about the toilet break, (during which Detective McGregor said “no worries” and asked the accused to let him know if such a need “ever comes up again”), Detective McGregor echoed some of his initial interview indications with the following comments: “Again, everything that we talked about before is, is, uh, right, you know, taped and all that. We’re still going. … And you’re not obligated to be, be here by any means and the door is not locked and all of those things, okay?”
  • Detective McGregor then quickly returned to the subject of the diaries. In particular, for approximately the next eight minutes of the interview, (from approximately 3:28pm to 3:36pm), Detective McGregor indicated, in various ways and without providing specifics, that the diaries contained corroborated references to misconduct by the accused in respect of which the accused was being invited to provide more information. For example, Detective McGregor said the following:
    • “It’s also clear to me … from J.’s writings that, that there was something that, that happened, um, that involved you…and I think you know what I’m talking about.”
    • “…I know it’s gonna be tough to talk about, but I think I want to give you an opportunity to talk about that before I have to talk to the family about it, and, and discuss things, um, that are gonna be sensitive.”
    • “And reading through those I’ve kind of felt J.’s pain and J. spoke to me. She had friends who she reached out to in confidence, and they were good friends who kept this until, until J. took her life. But there were some things that happened to J., and there were things that happened between you and J. that she detailed. … And they’re not easy to talk about, and I know that. …”
    • “And the problem here now that we have, to be honest, R., is that I have to do a full investigation … into J. … and I’m gonna have to reveal answers to people, and things are gonna come out. And the question is, is how do [you] wanna get ahead of some of the things s-, so that the family is, is able to understand them, okay? And that’s why I wanted to have you in today and I wanted to have a good talk with you.”
    • “You’ve made some mistakes with J. … You, you and J. had a, a relationship where you spent some time together, uh, in the house and you spent some time together in her room and you just kind of had a, a fun relationship. … And sometimes that stuff gets out of hand, and I think that’s what happened here and things went a little too far. Unfortunately, we, we have to talk about them because everybody’s gonna know about them. We-, the diaries go back to the family, okay? I can’t keep these. … I can’t give them to you. I can’t give them to anybody else, right? And you know what’s in these. … I think you do what’s in them, and I think … I think you’re scared of how much I know that’s in them.”
    • “But you know what happened between you and J. that was inappropriate maybe. R., we can’t, we can’t keep this secret.”
  • Throughout all of these initial comments by Detective McGregor concerning diary references to the accused, (from approximately 3:28pm to 3:36pm), the accused repeatedly indicated, in various ways, that he was not really following or understanding what Detective McGregor was talking about. For example, he shook his head, said he was “kind of lost”, indicated that he did “not really” know what was in the diaries, that he “literally” and “never even knew” what J. ever put in her diaries, and that he was “just trying to get on what page [Detective McGregor was] on”.
  • At approximately 3:37pm, there was a further exchange in which Detective McGregor finally provided the accused with an express indication of the relevant misconduct to which he was referring, and the accused seemed to realize what was being discussed: McGREGOR: “R., there was some contact between you and J. which because of, of everything, her age and everything else…” ACCUSED: “Okay.” McGREGOR: “…would be inappropriate.” ACCUSED: “Okay, I think I may know somewhere where you’re at in the lines of now.” [^7]
  • Over the course of the next 15 minutes, (from approximately 3:37pm to 3:52pm), the accused then made a number of further statements and admissions to Detective McGregor, in response to further questioning. For example, the accused indicated and/or acknowledged the following:
    • that he and J. had sexual contact with each other;
    • that he felt the sexual contact had gone “both ways”;
    • that it never progressed to sexual intercourse;
    • that he had his hands down J.’s pants;
    • that he thought J. was wearing underwear at the time, and did not think her pants were removed;
    • that he thought he had “just rubbed her vagina”, without penetrating J. with his fingers;
    • that he possibly felt J.’s breasts;
    • that he could not say when it first happened or last happened, although he was “pretty sure” it happened in the spring and before the wedding between his father and J.’s mother;
    • that it happened at the house, in J.’s bedroom; and
    • that he thought it happened just once, but it may have happened more than once.
  • At various points during that same period of questioning by Detective McGregor and responses from the accused, (between 3:37pm and 3:52pm), Detective McGregor also made a number of additional comments apparently intended to encourage further responses from the accused. Such comments included the following:
    • “It has happened. My, my question is, is R., is-an, an-, and so you-, like so-, I have to investigate that, you understand that.”
    • “R., I w-, I do, and I’m sincere in that I want to, I want to help you get ahead of this a little bit, okay? All right?”
    • “But I think it’s important we get ahead of this. Do you, do you understand what I’m saying and why I think it’s important for that? … Cause then we can start coming up with, um, you, you know, how we’re gonna move forward, okay? And we’ll talk about that. … We’ll move forward.”
    • “It’s good to get it out, R. Okay? Shake my hand. It takes a big man to get that out, okay? … You’re doing it for her now because… she needs some peace. … We, we, we need to get some peace for J. Would you agree with that? Would you agree with me on that R.?”
    • “R., it’s important. We, we wanna, we wanna get ahead of this now, right? So it’s important that we, we have it all out ‘cause only then can we start to move on. It, it-, I know it doesn’t seem like it now R., but it’s the truth.”
    • “We have to get ahead of this for J.”
  • At approximately 3:52pm or 3:53pm, there were indications that Detective McGregor was formally placing the accused under arrest, which the accused clearly seemed to understand, and which Detective McGregor confirmed. [^8] Following that apparent arrest [^9], there was a further discussion of rights while the accused pleaded repeatedly with Detective McGregor for permission to leave instead of being arrested. For reasons outlined in my analysis below, and given its possible relevance to the Charter issues contemplated by the accused, I think it helpful to set out and confirm the complete exchange of comments in that regard which proceeded, over the next five minutes, as follows: McGREGOR: “R., uh, right now I’m gonna lock the door. You’re not free to go anymore.” ACCUSED: “Please, don’t arrest me. I…” McGREGOR: “You, you ha-, you have to be…” ACCUSED: “Not again.” McGREGOR: “And your st-…” ACCUSED: “Please.” McGREGOR: “All your rights…” ACCUSED: “Just…” McGREGOR: “…are still…” ACCUSED: “Please.” McGREGOR: “All your rights are still what they are. You can still speak to a lawyer at any time.” ACCUSED: “I can’t deal with this, man. I’m s-, no, I, I just-no, please, I can’t do this all again. My parents, Just…” McGREGOR: “I’ll be right back, R., okay?” ACCUSED: “…please don’t arrest me. I have…” McGREGOR: “R., I, I ha-, I have to.” ACCUSED: “I didn’t do anything. I can’t do this anymore. My parents are gonna kill me. I can’t go back to jail, man.” McGREGOR: “R., do you wanna speak to a lawyer now?” ACCUSED: “I can’t do this. Please, I just wanna go home and my sister just died. My parents…” McGREGOR: “I know.” ACCUSED: “…aren’t gonna be able to deal with this. My si-, little sister. I just can’t do this, man. Please.” McGREGOR: “But, R. …” ACCUSED: “I will help in any way, just don’t…” McGREGOR: “R.” ACCUSED: “…charge…” McGREGOR: “And, and…” ACCUSED: “…and arrest me.” McGREGOR: “And I will too.” ACCUSED: “I will do whatever it ha-, takes. I just can’t put my family or myself through this anymore.” McGREGOR: “I understand. We’re gonna deal with this, okay?” ACCUSED: “Please don’t.” McGREGOR: “But it’s 3:52-, 3:53 now. It just turned, okay?” ACCUSED: “Everybody’s gonna hate me…” McGREGOR: “I, I told you about a lawyer bef-” ACCUSED: “…for the rest of my life.” McGREGOR: “I told you about a lawyer before and I just wanna make sure that you’re well aware that you can…” ACCUSED: “But I was just…” McGREGOR: “…speak to a lawyer.” ACCUSED: “…trying to help my sister, and now I’m getting…” McGREGOR: “Do you want to speak to a lawyer…” ACCUSED: “…in trouble for it.” McGREGOR: “…at this point R.? And if you would like, we can offer you duty counsel, that’s free, or any lawyer of your choice.” ACCUSED: “I just wanna go home.” McGREGOR: “I understand. But do you want to speak to a lawyer at this point? I need a yes or a no.” ACCUSED: “I wanna speak to my parents. I wanna go over to their place and just tell them every-” McGREGOR: “R-, and, you know…” ACCUSED: “So I don’t get hated.” McGREGOR: “R., R., that’s commendable.” ACCUSED: “I just don’t…” McGREGOR: “What you just said is commendable.” ACCUSED: “I just don’t wanna be hated for the rest of my life.” McGREGOR: “R., that’s really commendable w-, that your first thought is that you wanna be the one to tell your parents.” ACCUSED: “Cause I don’t want them to have to get a call that I’m arrested. I don’t want them to be… McGREGOR: “That shows me what type of person you are.” ACCUSED: “I just don’t wanna be here.” McGREGOR: “Well…” ACCUSED: “I don’t wanna be in trouble. I know…” McGREGOR: “But we ha-” ACCUSED: “…these things were wrong.” McGREGOR: “We ha-, okay.” ACCUSED: “But I wanna be able to fix it myself.” McGREGOR: “I…” ACCUSED: “I owe it to my sister.” McGREGOR: “You owe it to your sister? R., R., that’s commendable. I have some Kleenex here.” ACCUSED: “I don’t wanna do this. I can’t. I don’t want people to think…” McGREGOR: “Take your Kleenex.” ACCUSED: “…I’m a bad person. I don’t wanna be going to jail.” McGREGOR: “R., I don’t think you’re a bad person.” ACCUSED: “I don’t wanna be…” McGREGOR: “I think you made a mistake.” ACCUSED: “…charged with anything. I don’t wanna have to…” McGREGOR: “Of course you don’t.” ACCUSED: “…go away from my parents, my friends, lose my job, start over. I just wanna be able to live my life and try and keep j’s alive.” McGREGOR: “You made a mistake.” ACCUSED: “I just wanna (inaudible)…” McGREGOR: “You made a mistake.” ACCUSED: “…my sister.” McGREGOR: “Who hasn’t? ” ACCUSED: “No, I love her.” McGREGOR: “That-, of course you do.” ACCUSED: “I don’t wanna be in trouble by Christmas.” McGREGOR: “You made a mistake, R.” ACCUSED: “So please let me fix it myself.” McGREGOR: “And how would you fix thi-, uh, let-, you need…” ACCUSED: “I know.” McGREGOR: “You need to answer my question first though. Do you want to speak to a lawyer at this point.” ACCUSED: “I don’t know. I don’t know.” McGREGOR: “Well I’m gonna say that’s a yes. Do you have a lawyer in your-, in mind?” ACCUSED: “I don’t-, I can’t afford a lawyer.” McGREGOR: “I will call duty counsel on your behalf if you would like that. They’re free legal advice. I will call them.” ACCUSED: “I just wanna go.” McGREGOR: “Okay? And, again, I told you that there-, anything we said was being recorded and, and, and you didn’t have to talk. Uh…” ACCUSED: “I thought I was helping.” McGREGOR: “… (inaudible). You are helping.” ACCUSED: “I didn’t know I was gonna get…” McGREGOR: “Well…” ACCUSED: “…in trouble…” McGREGOR: “…I told…” ACCUSED: “…or anything.” McGREGOR: “I told you that anything that we said could be talked about.” ACCUSED: “I know, but…” McGREGOR: “You know?” ACCUSED: “Please…” McGREGOR: “I know.” ACCUSED: “…just let me go home.” McGREGOR: “We’re gonna talk more, but I’m gonna call a lawyer first, okay?” ACCUSED: “I don’t wanna be in trouble.” McGREGOR: “I’m gonna call a lawyer for you right now, okay? Are you done with your coffee?” ACCUSED: “Yeah.” McGREGOR: “Okay.” ACCUSED: “Oh, God, my life is over.” McGREGOR: “R., do you have anything on you? I, I should…” ACCUSED: “I, I…” McGREGOR: “…check your pockets at this point.” ACCUSED: “I…” McGREGOR: “Can you just stand up for me?” ACCUSED: “I don’t. I just have my wallet.” McGREGOR: “Okay. Can you give me your wallet? I need to take that.” ACCUSED: “It’s just-, I have a little thing in it. ” McGREGOR: “I’ll just take that. Can-, and your hat? I’m just gonna put this in your hat so we can keep it there. Anything else? Can you take off your bracelets for me? R., it’s okay. You did the right thing.” ACCUSED: “I don’t want to (inaudible).” McGREGOR: “Now, we can start moving on.” ACCUSED: “But moving on is losing my life.” McGREGOR: “R., we had to deal with this. Could you…” ACCUSED: “I don’t…” McGREGOR: “Could you imagine if this, if this-, and, and, and…” ACCUSED: “I don’t want it to end this way. I don’t wanna get in trouble with things be-, wh-” McGREGOR: “Can you stand up. I just want to see your pockets and everything, okay?” ACCUSED: “I don’t wanna end up…” ACCUSED: “I know you don’t.” ACCUSED: “…going to…” McGREGOR: “Anything in these?” ACCUSED: “No.” McGREGOR: “No?” ACCUSED: “I just wanna go home and see my parents and let them know.” McGREGOR: “I’m just gonna take this coat out.” ACCUSED: “Yeah.” McGREGOR: “That’s commendable. It really is.” ACCUSED: “I can’t do this again. I won’t…” McGREGOR: “It’s now 3:57. I’m just gonna exit the room…” ACCUSED: “She was my little sister.” McGREGOR: “…and call the lawyer for you.” ACCUSED: “She was my little sister. I just loved her.”
  • From 3:57pm to 4:33pm, the accused then was left alone in the interview room, apart from Detective McGregor bringing in and connecting a telephone, which the accused used to speak with duty counsel.
  • At 4:33pm, Detective McGregor returns to the interview room and, before embarking on further substantive questioning, has further conversation with the accused to confirm consultation with counsel, continued recording of the interview, and the ability and intention of the police to make use of the recording. Specifically, all of that is addressed in the following exchange: McGREGOR: “You had an opportunity to speak to a lawyer, is that right? ACCUSED: “ Yeah.” McGREGOR: “Can you-, sorry, R., I know it’s tough but can you verbalize that for me?” ACCUSED: “Yeah, sorry.” McGREGOR: “Okay. And are you satisfied with that lawyer?” ACCUSED: “I guess, yeah.” McGREGOR: “You guess or you want to speak to somebody else?” ACCUSED: “He was fine.” McGREGOR: “Okay.” ACCUSED: “(Inaudible)” McGREGOR: “And, and all those things we talked about before are still in play, right? Do you, um…” ACCUSED: “(Inaudible) talk to anybody.” McGREGOR: “You know we’re being recorded and, and that anything that’s said is recorded for accuracy purposes and we can use it if we, if we needed to, and in this case it’s important that we do.”
  • Substantive questioning of the accused by Detective McGregor then resumes and continues from approximately 4:34pm to 4:45pm. Developments during that time include the following:
    • The accused expressly acknowledges that he should not be speaking further with Detective McGregor. In particular, he states: “I- I’m not supposed to be talking any more than I am, but I just so-, don’t want to get into trouble.”
    • The accused nevertheless confirms and expands upon the details of his sexual contact with J.A., with indications and admissions that include the following:
      • that he put his hands down her pants;
      • that he touched and rubbed her vagina;
      • that he felt her breasts under her shirt;
      • that she touched his penis with her hand, over his clothes in his genital area;
      • that there was no sexual intercourse;
      • that the sexual contact described above occurred on the same day; and
      • that the accused thought it happened only once.
    • Detective McGregor made further albeit fewer intermittent comments, (some of which echoed those made before the accused spoke with duty counsel), apparently intended to encourage further responses from the accused while also making it clear he was unable to make any “deals” with the accused. Such comments included the following:
      • “I’m just trying to get it all out now, R. That’s all I’m trying to do.”
      • “Like you-, again, it’s up to you, R. But I just wanna get it all out there…”
      • “You’re not going home today.”
      • “I want you to know that…my plan is to hold you…in custody. … And noth-, and nothing you can say to me… I’m not going to make a deal with you. … You understand…that though? …. But you need to understand that. … I’m not here to make a deal though. … I will…let you talk…but you need to understand…”
      • “What would you say to J. right now if she was here?”
      • “J. is listening. W-, put her-, give her some peace. Give yourself some peace. If J. was sitting here, if J. was in this room, tell her what you would say to her.”
      • “You’re gonna see a judge in the morning.”
      • “I, I’m not-, I can’t make a deal, R.”
      • “I have to do my job and I have…to do it so that…in a nature that keeps everything, including the investigation’s integrity, plus…anybody safe. … Okay? … I can’t make a deal. I, I, I’m sorry.”
  • At 4:45pm, Detective McGregor exits the interview room again for another 5 minutes before returning and indicating that the accused would be taken to another police building. At that point, the accused asks to use the “bathroom” again, and Detective McGregor immediately says “You bet.”
• The accused then was led by Detectives McGregor and Johnson over to the main police facility and placed in a holding cell, without any further substantive questioning.

[17] With the above evidence and findings in mind, I turn now to consideration of whether or not statements made by the accused to Detective McGregor were voluntary in the sense required by law, so as to permit, (subject to the further Charter arguments contemplated by the accused), the Crown leading evidence of such statements at trial.

Analysis

[18] General principles relating to voluntariness were restated and emphasized by the Supreme Court of Canada in the seminal case of R. v. Oickle, 2000 SCC 38, supra, and have since been repeated in decisions such as R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500. They include the following:

• Statements by an accused will not be admissible if they are made under circumstances that raise a reasonable doubt as to voluntariness.
• The burden is on the prosecution to prove beyond a reasonable doubt that a statement was voluntary.
• Application of the “confessions rule” or voluntariness rule is necessarily contextual, because “hard and fast” rules cannot account for the wide variety of circumstances that may vitiate voluntariness, including sensitivity to the particularities of the accused.
• A trial judge therefore must consider all relevant factors when reviewing such statements, always keeping in mind the twin goals or objectives of protecting the rights of an accused without unduly limiting society’s need to investigate and solve crimes. However, the factors to be considered include the following: i. Whether statements were induced by threats, (including but not limited to threats of violence), or promises, (including but not limited to offers of leniency, counselling, or other forms of “quid pro quo” in exchange for the accused speaking with police). ii. Whether a statement was induced by a desire to escape oppressive conditions, (including but not limited to deprivation of food, clothing, water, sleep or medical attention, denial of access to counsel, and/or excessively aggressive or intimidating questioning for a prolonged period of time); iii. Whether an ostensible statement by the accused was made at a time when the accused lacked “an operating mind”; a requirement which, according to the Supreme Court of Canada, “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment”; and iv. Whether the police used “trickery” to obtain a statement from the accused, (recognizing that courts must be wary not to unduly limit police discretion, and that resort to tricks and other forms of deceit are not prohibited so long as they are not “so appalling as to shock the community”.

[19] Again, that list of factors is not exhaustive, but those are the four principal areas or situations giving rise to possible doubt concerning voluntariness identified by the Supreme Court of Canada, which therefore understandably have been the focus of subsequent decisions.

[20] With the above in mind, I turn to the suggestions and concerns raised by the defence in relation to the Crown’s assertion that the statements made by the accused to Detective McGregor in this case, during the course of the accused’s formal police interview, were voluntary.

[21] In doing so, I nevertheless do not lose sight of the fact that it is the Crown which bears the onus of proving the voluntariness of the accused’s statements beyond a reasonable doubt.

[22] In this case, I think it fair to say that there really were no suggestions or concerns raised by the defence in relation to threats or promises, and I independently find in any event that there was no evidence of threats or inducements sufficient to raise any reasonable doubt about the voluntariness of the accused’s statements to Detective McGregor. In that regard:

• Throughout all of the presented evidence of police interaction with the accused, (which essentially was limited to interaction between Detective McGregor and the accused), the accused was treated with courtesy and respect. Questioning by Detective McGregor consistently was done in a benign and friendly tone, and included comments conveying professed empathy and sympathy for the situation of the accused.
  • During such interaction, the accused was never mistreated. Nor, in my view, were there any express or implicit threats of ill treatment or more punitive consequences for the accused if he failed to speak with Detective McGregor.
  • Similarly, in my view there were no relevant promises made, or “quid pro quos” offered by Detective McGregor, to induce any statement from the accused. In particular:
    • While the accused was encouraged by Detective McGregor to “get ahead of” events, and to help matters “move forward” and “move on”, there was never any suggestion that consequences of any misconduct by the accused somehow could be avoided. For example, it was not suggested to the accused that disclosure of possible misconduct on his part in relation to J.A. could be avoided or minimized if the accused spoke with Detective McGregor. To the contrary, it expressly was made clear to the accused that the diaries of J.A. eventually would be returned to the family, that “everybody” was going to know about them, and that inappropriate conduct by the accused in relation to J.A. could not be kept secret.
    • Although Detective McGregor made a number of comments suggesting that the accused could bring “some peace” to J.A. by making full disclosure to Detective McGregor, I think such comments clearly fall within the category of “moral or spiritual inducements” addressed by the Supreme Court of Canada in R. v. Oickle, 2000 SCC 38, supra, at paragraph 56. As the Supreme Court made clear, “with most spiritual inducements the interrogator has no control over the suggested benefit”, so that “if a police officer convinces a suspect that he will feel better if he confesses, the officer has not offered anything”. That is true in this case, in relation to Detective McGregor’s ability to ensure “peace” for J.A. if the accused made a fulsome confession of his possible improprieties in relation to his stepsister. Those aspects of Detective McGregor’s questioning and resulting statements by the accused accordingly fall within the general rule, emphasized by the Supreme Court of Canada, that “confessions which result from spiritual exhortations or appeals to conscience and morality are admissible in evidence”.
    • Although Detective McGregor occasionally indicated a desire to “get it all out now”, such indications are never coupled with any indication that statements by the accused to Detective McGregor will result in any “hope of advantage”, as far as criminal proceedings are concerned. More generally, at no point during the interview does Detective McGregor promise or offer leniency in exchange for statements from the accused. [^10]
    • In my view, there accordingly was no “promised benefit…of such a nature that, when considered in light of the relationship between [Detective McGregor] and the accused, and all the surrounding circumstances of the confession, would tend to induce the accused to make an untrue statement”. [^11]

[23] I also think it fair to say that, in this case, there really were no defence suggestions that statements by the accused may have been induced by the accused being subjected to “oppression” or oppressive conditions, and I independently find in any event that the evidence presented to me in the voir dire contained nothing to suggest any such concerns. In that regard:

• In R. v. Oickle, 2000 SCC 38, supra, at paragraphs 58-62, the Supreme Court of Canada provided descriptions and examples of the sort of “inhumane” or “distasteful” conditions that may be created by police to create oppressive circumstances sufficient to overbear a suspect’s will to the point of making him or her doubt his or her own memory, and/or offer a “stress compliant confession” to escape such conditions. In particular, the Supreme Court offered an expressly non-exhaustive list of relevant factors in that regard, mentioned above, which included the following: “depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and aggressive, intimidating questioning for a prolonged period of time”. [^12] Another possible source of oppressive conditions was said to be police use of non-existent evidence. [^13]
• In my view, there were no such conditions evident in the case before me. Without limiting the generality of the foregoing;
  • The accused was permitted to attend the interview voluntarily, at a negotiated time in the mid-afternoon when he normally could be expected to have attended for the interview having slept and ate sufficiently, and without needing medical attention. The accused himself provided no indication to the contrary.
  • Although the accused occasionally commented on the cool temperature of the interview room, he entered the room with a toque, coat and other items of clothing that were available to him at all times.
  • From the outset, the accused was told about his ability to speak with a lawyer, including the provision of duty counsel, if he wanted such assistance.
  • As noted above, Detective McGregor conducted his questioning in a benign, friendly and courteous tone throughout the interview. In my view, such questioning was never aggressive or intimidating, and the entire interview, (including extended breaks, and the provision of an opportunity for the accused to speak by telephone with duty counsel), lasted no more than 2 hours and 20 minutes.
  • Until the accused was arrested approximately 82 minutes into the interview, it was made clear to him that the door to the interview room was not locked, and that he was free to get up and go at any time if he did not want to talk. The accuracy of that indication was confirmed when the accused asked to leave the room, in order to use a washroom, and immediately was permitted to do so without being escorted to and from the washroom. Even after his arrest, the accused was permitted to use the washroom again the moment he asked to do so.
  • In my view, Detective McGregor made no use of fabricated evidence. He alluded to the contents of the diaries made by J.A., and corroborative statements said to have been made by friends of J.A., who had maintained her confidence until her death. However, for the reasons noted herein, such evidence exists, (even if its admissibility is now in dispute).

[24] In this case, possible concerns raised by the defence about voluntariness essentially focused on alleged police trickery, and on whether the accused may have lacked an “operating mind” in the sense required.

[25] In relation to alleged “police trickery”, defence counsel submitted that the accused was encouraged to make statements to Detective McGregor “under false pretences”. In particular, the defence submits:

• that the stated reasons for Detective McGregor’s contemplated interview of the accused were limited to indications that the police were speaking to friends and relatives of J.A. in order to learn more about the circumstances of her death;
• that the accused accordingly attended voluntarily at the police station to share his thoughts and feelings about his stepsister’s death;
• that Detective McGregor’s references to meeting with other friends and family of J.A., (including indications that the detective wanted to ensure that all “the people” he was meeting with were “comfortable talking to” the detective, and that “they” knew they had rights “as Canadian citizens” to do certain things, such as speaking with a lawyer), wrongly and falsely suggested to the accused that he was there for the same purpose as other friends and family of J.A., and in the same position as those other people, whereas the real or primary purpose of Detective McGregor’s interview was investigation of a suspected sexual assault on J.A. by the accused.

[26] In my view, there is truth in this.

[27] Clearly, not all friends and family being spoken to by Detective McGregor, in relation to J.A.’s death, were in the same position or being approached for questioning in the same manner. [^14] To the extent Detective McGregor’s express statements to the accused suggested otherwise, that was misleading.

[28] Moreover, even if what Detective McGregor said to the accused regarding the purpose of his contemplated interview may have been literally accurate, (e.g., insofar as possible misconduct by the accused vis-à-vis J.A. arguably formed part of the “circumstances around her death”, according to the reasons offered by J.A. herself in her diary entries as to why she was feeling sad and suicidal), it seems clear that Detective McGregor omitted any mention of the diary entries or possible misconduct by the accused when arranging or embarking on his interview of the accused, and that the omission was deliberate. [^15] To the extent the omission understandably may have caused the accused to believe that the focus of intended questioning would be on J.A., rather than any possible misconduct by the accused, that too arguably was misleading.

[29] However, to the extent such misleading indications and omissions by Detective McGregor might be characterized as “police trickery”, I do not think they rise to the level of trickery, contemplated by the Supreme Court of Canada in R. v. Oickle, 2000 SCC 38 supra, and other decisions, that is required to vitiate the voluntariness and admissibility of an accused’s statements to the police.

[30] In that regard, I am mindful of the Supreme Court of Canada’s emphasis that, in contrast to consideration of threats and promises, oppression and the need for an “operating mind”, use of police trickery is not only related to voluntariness, (insofar as may have induced an accused to make a statement that is unreliable and untrue), but involves a distinct inquiry insofar as it also has the more specific objective of maintaining the integrity of the criminal justice system. [^16]

[31] However, I also am mindful of the Supreme Court of Canada’s emphasis on bearing in mind the twin goals of protecting the rights of an accused without unduly limiting society’s need to investigate and solve crimes, and its acknowledgement that a level of police trickery is tolerated so as not to frustrate the latter goal. In particular, I think it helpful to bear in mind the Supreme Court’s indications, in relation to alleged police trickery and voluntariness, that:

• Courts should be wary not to unduly limit police discretion. [^17]
• The investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. The police, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not, through the confession or voluntariness rule, be hampered in their work. What should be repressed vigorously is conduct on the part of the police that shocks the community. [^18]
• There may be situations in which police trickery, though neither violating the right to silence nor undermining voluntariness per se, is so appalling as to shock the community. [^19] However, the situations and occasions deserving such “immediate and vigorous rebuke” will be “very rare” and “very few”. [^20] In particular, to meet that standard the trick resorted to by the police must be “a dirty trick” that “shocks the community”, and that is a “very high threshold”; a threshold “higher … than that to be attained to bring the administration of justice into disrepute in the context of a violation of the Charter”. [^21]
• Examples of police trickery that might “shock the community”, in the sense required, include the following: a police officer pretending to be a lock up chaplain and hearing a suspect’s confession; a police officer pretending to be a duty legal-aid lawyer to elicit incriminating statements from an accused; and police injecting truth serum into a diabetic suspect, pretending it is the suspect’s daily shot of insulin, in order to use resulting statements in evidence. [^22]

[32] In my view, the alleged “police trickery” of Detective McGregor in this case obviously pales in significance to the examples provided by the Supreme Court of Canada, and does not rise to the very high threshold required to satisfy the “community shock test”. Nor do I see anything in the evidence to suggest that any conduct of Detective McGregor, in that regard, somehow undermined the reliability of what the accused may have told him.

[33] I turn next to consideration of whether the accused, at the time of his statements to Detective McGregor, had an “operating mind” in the sense required to render his statements “voluntary”.

[34] In that regard, as noted above, the Supreme Court of Canada has explained that the relevant “operating mind” requirement “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment”. [^23]

[35] The limited nature of the threshold that has to be met in that regard also has been described and emphasized by the Supreme Court of Canada in the following terms:

The operating mind test … requires that the accused possess a limited degree of cognitive ability to understand what he or she is saying, and to comprehend that the evidence may be used in proceedings against the accused. Indeed it would be hard to imagine what an operating mind is if it does not possess this limited amount of cognitive ability. In determining the requisite capacity to make an active choice, the relevant test is: Did the accused possess an operating mind? It goes no further, and no inquiry is necessary as to whether the accused is capable of making a good or wise choice or one that is in his or her interest. [^24]

[36] In this case, I think there is no evidence to indicate or suggest that the accused lacked the cognitive ability to understand what he was saying to Detective McGregor.

[37] To the contrary, in my view the behaviour and responses of the accused throughout much of the interview make it abundantly clear that he was intelligent, articulate and appropriately responsive to Detective McGregor’s questions and comments, without any indications whatsoever that the cognitive ability of the accused was impaired by matters such as lack of sleep, drugs or alcohol.

[38] Although the accused clearly became emotionally upset during the course of the interview, I think there is nothing in the evidence presented during the voir dire to indicate or suggest that the accused somehow lost the cognitive ability to understand what he was saying.

[39] Submissions before me instead essentially focused on the second component of the “operating mind” requirement described above; i.e., on whether the accused had awareness or knowledge that what he was saying to Detective McGregor could be used “to his detriment”, in “proceedings against the accused”.

[40] In that regard, defence counsel placed considerable emphasis on Detective McGregor’s failure to provide the accused with a primary caution in the standard form; i.e., an express statement by the police, specifically indicating to a suspect that he or she may be charged with a criminal offence but has the right to remain silent, and that anything said during a police interview can be used against the suspect if he or she is charged with a crime. [^25]

[41] Similarly, defence counsel emphasized that Detective McGregor also failed to provide the accused with a secondary caution; i.e., a reminder to the accused, after the making of potentially incriminating statements, that regardless of what he already may have said, he was not obliged to say anything further, and that whatever he might say thereafter also could be used as evidence in proceedings against him.

[42] In approaching the second component of the “operating mind” requirement in this case, I think it helpful to note some of the more particular and explanatory descriptions of that component which were canvassed and relied upon by Justice Sopinka, in R. v. Whittle, supra, when formulating the summary of the “operating mind” requirement adopted and since repeated by the Supreme Court of Canada. In that regard, reference was made to:

• the comments of Justice Beetz in Horvath v. R., [1979] 2 S.C.R. 376, who indicated at p.425 that the component refers to “an awareness of what is at stake in making a statement to a person in authority”; and
• the comments of Justice McIntyre in R. v. Clarkson, [1986] 1 S.C.R. 383, who indicated at p.399 that the focus is on whether the accused “was aware of the consequences of making the statement on the particular occasion in question”, and that “to be aware of the consequences in this particular context simply means to be capable of understanding that [his or] her statement could be used in evidence in proceedings to be taken against [him or] her”.

[43] Police provision of an express caution in the standard form may go a long way towards establishing, beyond a reasonable doubt, that an accused had the requisite awareness of consequences contemplated by the “operating mind” requirement. [^26]

[44] However, as emphasized by our Court of Appeal in R. v. E.B., 2011 ONCA 194, supra, at paragraph 88, the provision of such a caution is neither a requirement nor a guarantee of voluntariness:

Even where a person is a suspect, the absence of the standard caution is only one factor to be considered in the voluntary analysis – just as the presence of such a caution does not automatically lead to the conclusion that a statement was voluntary.

[45] In the same case, our Court of Appeal also indicated that, despite the absence of a caution in the standard form, its purpose might be achieved in other ways; e.g., if it otherwise was “brought home” to an accused that he or she “did not have to give the statement and that there were potential adverse consequences in doing so”. [^27]

[46] In my view, having regard to all the circumstances, there is good reason to doubt, at least up until the time of his apparent arrest, whether the accused had any awareness of “what was at stake”, in terms of the statements the accused was making to Detective McGregor possibly being used in criminal proceedings against the accused. My considerations in that regard include the following:

• There is nothing to suggest that the accused, prior to attending at the police facility, had any idea that he was suspected of having engaged in inappropriate sexual contact with J.A., and that one purpose of the contemplated interview was to assist Detective McGregor in determining whether there were grounds for the accused to be arrested in that regard. As noted above, the accused instead was told only that he was one of numerous family and friends of J.A. being invited to discuss the “circumstances around her death”. The accused attended voluntarily at the police station to provide help only in that regard.
• Upon meeting the accused, Detective McGregor provided the accused with no caution or recitation of rights before commencement of the recorded interview.
• When the interview commenced, the accused once again was provided with no indication that he was suspected of sexual misconduct in relation to J.A., or that one purpose of the interview was to determine whether there were grounds to arrest him in that regard. The accused instead was told that he was there for “a nice chat”; e.g., “to talk a little bit about [his] stepsister”, “things that have come up”, “the family dynamic [and] things like that”, and “factors that…contributed to J.’s life”.
• When the interview commenced, Detective McGregor also provided no caution to the accused in the standard form. The accused was told that he did not have to speak to Detective McGregor, that he was free to go at any time, that he could speak to a lawyer, (including free duty counsel), and that everything said during the interview was being recorded for accuracy. However, noticeably missing from such indications was any comment by Detective McGregor alerting the accused to the possibility that things said by the accused during the interview might be used in criminal proceedings against him.
• In response to such opening comments by Detective McGregor, the accused himself made comments strongly suggesting that he was oblivious to the potential criminal jeopardy he was in; i.e., that criminal proceedings might be taken against him based on statements he might make to Detective McGregor. In particular, in addition to saying that he could “not even afford” a lawyer, the accused expressly indicated that he “didn’t…really feel much n-, need to be able to do that anyways”, and that he had “no problem” with his statements being recorded “if it helps in any way”.
• When the accused returned to the interview after a washroom break, Detective McGregor repeated his initial cautions to the accused by way of reference; i.e., by making reference to “everything that we talked about before”, repeating that the interview as being “taped”, repeating that the accused was not obliged to stay and free to leave, and making a general reference to “all of those things”. Again, however, what Detective McGregor talked about “before”, at the start of the interview, had not included anything to alert the accused to the possibility of his interview statements being used against him in criminal proceedings. Moreover, there was a similar noticeable omission in the cautionary comments made by Detective McGregor to the accused when the accused returned from the washroom.
• When Detective McGregor brought up the subject of the diaries maintained by J.A., and made only vague reference to unspecified “things” that had happened to J.A. which were going to “come out”, and which the accused was supposed to know about, the reaction and comments of the accused made it clear that the accused still had no idea that his possible sexual misconduct in relation to J.A. was a subject of discussion during the police interview.
• Even after that was made clear to the accused, and he made numerous admissions in that regard, the accused still seems to have been oblivious to the possibility that such statements might be used against him in criminal proceedings. In my view, that was made clear by his highly emotional and surprised reaction to his apparent arrest, and a number of his corresponding immediate statements and pleas to Detective McGregor. In that regard, I have in mind such comments as the following:
  • “But I was just…trying to help my sister, and now I’m getting…in trouble for it”; and
  • “I thought I was helping. … I didn’t know I was gonna get…in trouble…or anything”.

[47] For all such reasons, in relation to statements made by the accused during his police interview prior to his apparent arrest, I think there is good reason to doubt that the accused comprehended that what he was saying to Detective McGregor could be used to his detriment; i.e., as evidence in criminal proceedings against the accused.

[48] I therefore similarly think there is good reason to doubt that the accused had an “operating mind”, in the sense required for voluntariness, prior to that apparent arrest.

[49] I therefore find that, in relation to the statements made by the accused to Detective McGregor prior to his apparent arrest, (i.e., prior to the point where Detective McGregor informs the accused that the interview room door is being locked and he is “not free to go anymore”, at approximately 3:52pm during the interview), the Crown has failed to prove voluntariness of the accused’s statements beyond a reasonable doubt, and evidence of such statements accordingly should not be admissible at trial.

[50] In relation to statements made by the accused to Detective McGregor after that point, however, I think the situation is markedly different.

[51] In particular, after that point, the accused was keenly aware that his statements to Detective McGregor could be used to his detriment, in criminal proceedings against the accused, because they were being used that way. In particular, he clearly realized that he was apparently was being arrested and detained by Detective McGregor because of what had been said during the interview.

[52] In my view, that realization is evident throughout the entire extended exchange that takes place between the accused and Detective McGregor immediately after the arrest, but is also expressly indicated by the same particular comments noted above; i.e., wherein the accused notes that he spoke to Detective McGregor in an effort to help his stepsister but was “getting …in trouble for it”, and his similar comment made immediately in response to Detective McGregor’s expressed reliance on prior indications that statements during the interview were being recorded.

[53] From the time of his apparent arrest, I therefore think the accused had an “operating mind” in the sense required, when making his subsequent statements to Detective McGregor. In my view, there accordingly is no reasonable doubt about the voluntariness of such statements in that regard.

[54] Without limiting the generality of the foregoing, I think the voluntariness of the accused’s post-arrest statements to Detective McGregor was reinforced and continued after the accused exercised his opportunity to speak with duty counsel. In that regard:

• the Supreme Court of Canada repeatedly has indicated that, if a detainee has exercised his right to counsel, he presumably will have been informed of his right to remain silent, and therefore his right to choose whether or not to volunteer information to the police; [^28]
• the accused in this case, after speaking with duty counsel, and confirming his satisfaction with the advice he had received, expressly indicated that he was “not supposed to be talking any more”; and
• the accused in this case nevertheless chose to continue speaking with Detective McGregor, repeating and expanding upon admissions he had made prior to his apparent arrest.

[55] For all such reasons, I think the Crown has proven the voluntariness of the post-arrest statements made by the accused to Detective McGregor, after the apparent arrest, beyond a reasonable doubt.

[56] In my view, none of the factors identified by the Supreme Court of Canada in R. v. Oickle, 2000 SCC 38, supra, either separately or together, give rise to any reasonable doubt concerning the voluntariness of the accused’s statements to Detective McGregor, following the apparent arrest, during the remainder of the police interview. Such statements accordingly should be admissible at trial, subject to the outcome of the remaining Charter arguments contemplated by the accused.

Relevance of R. v. Hamilton

[57] As noted above, defence counsel wrote to me with the concurrence of Crown counsel, just over three weeks after the voir dire and submissions regarding voluntariness, to provide me with a copy of R. v. Hamilton, 2017 ONCA 179, released on March 2, 2017.

[58] The decision was forwarded to me without any written submissions from either counsel as to what relevance it might have to the voluntariness decision I had under reserve, apart from an indication from defence counsel that he thought it “might be of some assistance to [me] in [my] deliberations”.

[59] In the result, I was left to determine, independently and without the benefit of any assistance from counsel, whether the Hamilton decision should have any bearing on my decision outlined above.

[60] I concluded that it should not.

[61] In R. v. Hamilton, 2017 ONCA 179, supra, the Court of Appeal was focused on a failure by the trial judge to apply the test set forth in R. v. Plaha (2004), 188 C.C.C. (3d) 289 (Ont.C.A.), for determining whether, in circumstances when the police have obtained a statement in violation of s.10(b) of the Charter, and the suspect gives a second statement after having consulted a lawyer, the second statement was obtained in a manner that infringed the Charter.

[62] In other words, both the Hamilton and Plaha decisions are very much concerned with alleged Charter violations, and the proper application of s.24(2) of the Charter to address and resolve questions of admissibility in relation to statements, made after consultation with counsel, that nevertheless may be “tainted” by breaches of an accused’s right to counsel prior to such consultation.

[63] Nothing in the Hamilton decision suggests that the Court of Appeal thought its decision related to voluntariness, as opposed to the specific “Plaha” Charter issues noted above.

[64] To the contrary, writing on behalf of the panel, Justice Gillese noted that the defence had conceded the voluntariness of all the statements under review, and that the application brought by the accused in that case had asked to have the statements excluded on Charter grounds.

[65] Moreover, reference by the trial judge in that case to determining the “voluntariness” of the statements, (despite the reality that voluntariness had been conceded, and accordingly was not in issue in relation to the Charter application brought by the accused), was expressly identified by Justice Gillese as one of the reasons why the Court of Appeal could not assume “that the trial judge applied the correct legal test”.

[66] As I read the Hamilton decision, it therefore not only had nothing to do with voluntariness, but also indicates that the principles being applied therein were different from those applicable to determinations of voluntariness.

[67] It may be that defence counsel in this case was suggesting the development of some kind of test, analogous to that in R. v. Plaha (2004), supra, to be applied in the context of voluntariness.

[68] For example, it might be suggested that the court should exclude later and apparently voluntary statements, in situations where their making was influenced and “tainted” by the making of earlier involuntary statements that somehow overcame the accused’s freedom of will to make a truly voluntary statement on the later occasion.

[69] As a matter of fact, I do not think that was the case here.

[70] In any event, however, I was presented with no authority or counsel submissions in that regard, and think it inappropriate, in the circumstances, to expand upon or deviate from the well-established voluntariness analysis mandated by the appellate authorities noted above. Again, I think that the Crown has proven the voluntariness of the accused’s post-arrest statements to Detective McGregor after the apparent arrest beyond a reasonable doubt, according to that mandated analysis.

Conclusion

[71] For the reasons outlined herein, the Crown has failed to prove, beyond a reasonable doubt, the voluntariness of the statements made to Detective McGregor by the accused during the course of his police interview, prior to his apparent arrest, (i.e., prior to the point where Detective McGregor indicated that he was going to lock the door of the interview room and that the accused was no longer free to go), and evidence of those statements accordingly will be excluded at trial.

[72] In contrast, the Crown has proven, beyond a reasonable doubt, the voluntariness of the subsequent statements made to Detective McGregor by the accused during the remainder of his police interview; i.e., the statements made by the accused following his apparent arrest. Evidence of those statements accordingly will not be excluded at trial on the basis of voluntariness. However, their admissibility at trial is still subject to the outcome of the Charter arguments contemplated by the accused.

[73] This matter currently is scheduled to be back before me again, to be spoken to, on July 18, 2017. At that time, I would appreciate submissions from counsel concerning a timetable for the preparation and filing of further material relating to the remaining aspects of the Crown’s original application, and the contemplated Charter arguments of the accused, in advance of trial.

Justice I.F. Leach Date: July 4, 2017

[^1]: As I noted at the time, failure to have all pre-trial issues formally raised and ready for argument in a timely way was particularly unfortunate, as several extra days of hearing time could have been made available for this matter during that same trial sittings. [^2]: On or about March 22, 2017, (approximately three weeks after conclusion of the voir dire hearing before me), defence counsel wrote with the concurrence of Crown counsel to provide me with a copy of R. v. Hamilton, 2017 ONCA 179, which had been released on March 2, 2017. The relevance of that decision is addressed in my analysis below. [^3]: The dates provided for the diary entries described herein are based on the date indications made by J.A. in the entries themselves. By itself, such information provides no guarantee that the dates noted by J.A. accurately reflect the timing of the relevant entries. However, there also was no evidence to suggest otherwise. [^4]: In that regard, Detective McGregor emphasized during the course of his testimony that he had no prior knowledge of J.A., and he accordingly was concerned about the possibility that J.A., perhaps knowing about the accused having engaged in similar conduct in or about 2011, may have been taken that incident, directed towards a different person, and inaccurately/improperly described it as having happened to herself. In the circumstances, Detective McGregor subjectively believed that, if R.D.T. himself did not tell Detective McGregor anything indicating or acknowledging nefarious behaviour on his part in relation to a possible sexual assault vis-à-vis J.A., Detective McGregor lacked grounds to arrest R.D.T., and R.D.T. was “a free man”; i.e., someone able to leave if he wanted to go. In Detective McGregor’s mind, one purpose of his intended interview with R.D.T. was to determine whether there was something to the suspicions Detective McGregor had about a possible sexual assault; e.g., by obtaining information, admissions or even a confession from R.D.T. in that regard, during the course of the contemplated interview. Detective McGregor agreed that, depending on what R.D.T. said during the interview, he “could be in trouble”. [^5]: Detective McGregor agreed that, to his knowledge, the accused was not aware that one purpose of the contemplated interview was to “see if there was something to” Detective McGregor’s suspicions that R.D.T. may have engaged in a sexual assault vis-à-vis J.A. [^6]: In cross-examination, Detective McGregor confirmed that, in terms of providing the accused with a caution at the outset of the interview, or advising the accused of his rights, nothing was said about a suspected sexual assault of J.A. by R.D.T. [^7]: In cross-examination, Detective McGregor emphasized that, up to and including this point during the interview, he still did not know what the accused would tell him, in relation to the suspicions of a possible sexual assault. However, this particular comment by the accused encouraged a belief by Detective McGregor that he was “on the right track”. [^8]: Detective McGregor testified and I accept that, although he initially did not use the term “arrest”, it was his intention to place the accused under arrest at that point, based on the content of the interview to that point and admissions made by the accused. Moreover, I find that any suggestion of uncertainty in that regard, in relation to Detective McGregor’s intentions or the accused’s understanding of those intentions, are dispelled by the dialogue which followed immediately thereafter. In particular, (and as noted in full context below), when Detective McGregor tells the accused “You’re not free to go anymore”, the accused promptly responds by saying “Please don’t arrest me”, and Detective McGregor in turn promptly says “You have to be”. Detective McGregor nevertheless confirmed, and I independently find, that the accused was never expressly told, at that point or at any later point during the interview, of the formal charge or charges underlying his arrest. [^9]: In the balance of these reasons, I intend to use the term “apparent arrest” rather than “arrest” because the timing and lawfulness of any arrest were not fully addressed in counsel submissions to date, and any such final determinations may be relevant to determination of the Charter issues contemplated by the accused. [^10]: Detective McGregor expressly and repeatedly confirms his inability and unwillingness to make any “deals” with the accused only towards the end of the interview, in response to pleas from the accused, and offers by the accused to “help in any way”, “do whatever it takes”, return at any time, or provide anything Detective McGregor needs if the accused is permitted to leave. However, that does not take away from the reality that Detective McGregor neither offered nor suggested any leniency before then in exchange for the accused’s willingness to talk. [^11]: With the insertion of Detective McGregor’s name, this is the articulation offered by McIntyre J.A. (as he then was) in R. v. Jackson (1977), 34 C.C.C. (2d) 35 (B.C.C.A.), adopted by the Supreme Court of Canada in R. v. Oickle, 2000 SCC 38, supra, at paragraph 51, of the type of promised benefit needed to vitiate the voluntariness of a confession. [^12]: R. v. Oickle, 2000 SCC 38, supra, at paragraph 60. [^13]: R. v. Oickle, 2000 SCC 38, supra, at paragraph 61. [^14]: That seems obvious from a simple comparison of how Detective McGregor approached his interviews with N.A. and the accused. N.A. explicitly was told, at the outset of his interview by Detective McGregor, “There’s no trouble for you here”, and “You’re not in any trouble here so I, I don’t need to caution you…or anything like that, okay, there’s nothing like that”. There was no such indication made by Detective McGregor to the accused at the start of his interview. Moreover, as noted above, Detective McGregor acknowledged in cross-examination that the accused was not only suspected of having committed a possible sexual assault on J.A., but also facing the prospect of arrest depending on answers and statements given during the contemplated interview. [^15]: Steps taken during the course of the investigation being led by Detective McGregor make it clear that considerable importance was placed by the police on obtaining and reviewing the diary entries made by J.A., and on following up with friends of J.A. who seemed able to provide possible corroboration in relation to the diary entries suggesting inappropriate sexual touching of J.A. by the accused. In his testimony during the voir dire, Detective McGregor acknowledged that the purpose of his intended interview of the accused included speaking with the accused about those diary entries and the things the friends of J.A. had said. The conduct of the resulting interview of the accused, (to which Detective McGregor brought the diaries), confirms that raising of the subject was planned and deliberate. In the circumstances, I think it quite reasonable to infer that Detective McGregor’s omission of any reference to such matters, during the course of arranging and embarking on his interview of the accused, also was quite deliberate. [^16]: See R. v. Oickle, 2000 SCC 38, supra, at paragraph 65. [^17]: Ibid., at paragraph 66. [^18]: See Rothman v. The Queen, [1981] 1 S.C.R. 640, at p.697; and R. v. Oickle, 2000 SCC 38, supra, at paragraph 66. [^19]: See R. v. Oickle, 2000 SCC 38, supra, at paragraph 67. [^20]: See Rothman v. The Queen, supra, at p.697. [^21]: See R. v. Collins, [1987] 1 S.C.R. 265, at pp.286-287. [^22]: See R. v. Rothman, supra, at p.697; and R. v. Oickle, 2000 SCC 38, supra, at paragraph 66. [^23]: See R. v. Whittle, [1994] 2 S.C.R. 914, at p.936, and R. v. Oickle, 2000 SCC 38, supra, at paragraph 63. [^24]: See R. v. Whittle, supra, at p. 939. [^25]: See R. v. E.B., 2011 ONCA 194, [2011] O.J. No. 1042 (C.A.), at paragraph 91. [^26]: Indeed, as noted by Justice McIntyre in Clarkson v. R., supra, at p.399, the familiar and customary warning, derived from the English Judges’ Rules, “was designed to ensure knowledge of the consequences of the statement, that is, its possible use in proceedings against the accused”. [^27]: See R. v. E.B., 2011 ONCA 194, supra, at paragraph 91. [^28]: See, for example, R. v. Hebert, [1990] 2 S.C.R. 151, at p.184; and R. v. Singh, 2007 SCC 48, supra, at paragraph 33.