R. v. Xiu Jin Teng, 2017 ONSC 567

CITATION: R. v. Xiu Jin Teng, 2017 ONSC 567

DATE: 20170126

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

XIU JIN TENG

Respondent

Joshua Levy and Robert Fried, for the Applicant

The Respondent is self-represented

HEARD: November 4, 7 and 10, 2016

Ruling re Statements at the Scene

MacDonnell, J.

[1] On November 16, 2016 I ruled that the statements that the defendant was alleged to have made to Police Constables Kumar and Shearer shortly after they arrived at her residence in response to a 911 call were voluntary and not obtained in a manner that infringed the defendant’s rights under the Charter and, accordingly, that those statements were admissible in evidence. I stated that I would provide reasons in writing for that ruling. These are those reasons.

A. The Evidence

[2] For the purposes of the voir dire, the Crown tendered what was said to be a recording of a 911 call made by the defendant at approximately 12:58 p.m. on February 29, 2012. It is a reasonable inference that at the time the defendant was making that call her landlord, Kenneth Wang, was also making a 911 call and that both the defendant and Mr. Wang were inside the defendant’s basement apartment. Both the defendant and Mr. Wang made reference to the presence in the apartment of the dead body of the defendant’s husband. As a result of one or both of those calls, Officers Kumar and Shearer attended at the apartment.

(i) the evidence of Constable Kumar

[3] Constable Kumar arrived first. He testified that he was working alone in uniform in a marked police vehicle when the request for officers to attend the scene was broadcast over the police radio. His recollection was that it was described as an “unknown trouble” call. He said that the information was that the female tenant in the basement was trying to move out, “and her husband’s dead body was maybe in the basement, that she had told her landlord, Mr. Wang, that he died of a heart attack last week.”

[4] Constable Kumar arrived within minutes of receiving the call and entered the premises. He heard the voices of a male and female in the basement apartment. When he proceeded downstairs he observed the defendant standing in the kitchen speaking on a telephone. He heard her say “the police are here” and she hung up. Mr. Wang was also standing in the kitchen. Kumar testified that both persons tried to talk to him at the same time, and that “there was a little bit of a language barrier to understand what was going on.” He said that he separated the two individuals and advised the defendant to stay in the bedroom area. He then spoke to Mr. Wang, who said that Ms Teng was his tenant and that she was packing all her bags and planning to move out. When Kumar asked whether Ms Teng had paid the rent Mr. Wang did not respond directly.

[5] At that point, Kumar decided that this was a mere landlord and tenant dispute and he voiced that opinion over the police radio. When Mr. Wang heard this, he interjected that the defendant was hiding her husband’s body and he pointed to a storage room on the opposite side of the apartment. The door to the room was open and the lights were on and Kumar observed what looked like a body lying on the floor, covered from head to toe with some kind of sheet.

[6] Kumar alerted dispatch that there was a dead body in the apartment. He returned to the kitchen and spoke again to Mr. Wang. Wang told him that when he discovered the body it was totally covered with boxes and other items. Kumar told Wang to go upstairs and to wait for the investigators to arrive. He called for the defendant to come out of the bedroom and he asked her for identification. He did this, he said, “because it’s a basement apartment, and Wang had said she was hiding the husband dead body, and so for me, she’s the wife, so I wanted to ID her also.” Ms Teng identified herself with an Ontario Health Card. She told Kumar that her two-year-old daughter was at daycare.

[7] At that point, Kumar testified, “I asked her the general question, ‘what happened’?” He testified that “she advised that her husband had suffered a heart attack last Friday [five days earlier] and died as a result. She advised that at that time she did not know what to do and that’s why she never told anybody that her husband had passed away”.

[8] With respect to why he asked the defendant what had happened, Kumar testified that he was trying to figure out “what’s going on”, “so it’s a general question as of what happened over here.” He was asked how he was viewing the defendant at the time and he responded: “As a person whose husband’s dead body is there and she’s the wife… She appeared to be a normal person” The Crown asked “Was she a suspect?” He answered: “At that point, yes, to reason to find out what happened to her husband… A suspect in a way like there’s a dead body which is belong to her husband and she’s the wife and when she told me he died of a heart attack the body is there since last Friday, so that’s why I asked her what happened and suspect of further ongoing investigation.”

[9] The Crown asked whether at the time Kumar saw the dead body he had any reason to know the cause of death and he said that he did not. Further:

Q. Did you at the time have any reason to think that the death could have been attributed to anything other than a heart attack?

A. No sir.

Q. So what is it that you are investigating?

A. The dead body of her husband was in the basement covered in some sheet, the landlord told me that there were boxes that he removed, it’s already been suspicious over there, there’s suspicion.

Q. In what way in your mind at the time does that potentially involve the police?

A. Who will hide a dead body, wrapped in a sheet and in a storage area covered with the boxes?

Q. Before you asked the question, did you believe a crime had been committed?

A. Yes sir, suspicion is there … a dead body covered in a sheet and on top the boxes, who would hide a dead body like that.

[10] Kumar was asked why he had not cautioned the defendant before asking her what happened. He said that he did not do so because he “was trying to figure out or establish what happened here, it’s a general question you ask the person most of the time when you arrive on scene.” In an effort to clarify Kumar’s evidence with respect to whether he regarded the defendant as a suspect, Crown counsel asked him “in your mind, a suspect in what crime?” He responded: “I did not have a crime in mind, a suspect situation, a potential dead body, she can be involved in that situation, or she can be a witness to that situation.”

Q. So, when you use the word ‘suspect’, what do you take that word to mean?

A. I’m thinking like two people only living in the basement, husband and wife and husband was located as dead, wrapped in a sheet, so there is something that happened, something going on and in that way I think of that suspect, being involved in that situation… It is still an investigation going on so nothing is coming forward like what crime happened over there beside what we located.

Q. Did you have reason to think when you asked her the question that any crime had been committed?

A. No, just a general question, what happened.

[11] Kumar was also asked: “At any point were you detaining her?” He responded: “She’s there with me and so she’s not allowed to go anywhere, so if you call that detained, yes”. “Why was she not allowed to go anywhere?” “As I say, (inaudible) dead body in the basement and a further investigation into that, so at that point I don’t know what actual happened to her husband… Her husband’s dead body was located in a suspicious manner, wrapped in the sheets, with boxes on top, so at that point I don’t know what actually happened over there but the suspicion is there and it’s pending further investigation by the other units coming on the scene”.

[12] In cross-examination, it was suggested that when he started to question the defendant, she would not have been permitted to just wander off, for example to pick up daughter, or go shopping. Kumar responded “I believe it’s an ongoing investigation, her husband’s body had been found, so I would like to ask her a few questions before she wandered around, or go pick up her daughter

Q. So the answer is that she would not have been permitted to just leave?

A. Without ID’ing herself?

Q. yes.

A. Yeah, I would like to talk to her about her identification, her name…

Q. Well, after she identified herself with her health card… and you knew who she was, or you confirmed who she was, at that point if she said ‘I just want to leave now, good afternoon officer’, would you have just let her leave the premises?

A. She can be a potential witness or even a victim too for that incident happened, so I would say no, like we want to know what happened.

Q. So the answer is ‘no, she would not have been permitted to leave’?

A. No, as I say she could be like a victim or a witness…

Q. Or somebody who caused or contributed to the death of the body of her husband?

A. At that time I don’t know that.

Q. You certainly had gathered some information that led you to the conclusion that these were very suspicious circumstances?

A. Very suspicious.

[13] It was suggested to Constable Kumar that with all the information he had and the physical observations he had made of the body, he believed that a crime had been committed. He responded, “Yes, there was a suspicion.”

(ii) The evidence of Constable Shearer

[14] Constable Shearer was the second uniformed officer to attend at the scene in response to the 911 call. His recollection was that the dispatcher had radioed that the call had come from the owner of the residence with respect to ‘unknown trouble’ concerning the downstairs tenant whose husband’s dead body might be in a downstairs cupboard. The information included the name of the owner, Kenneth Wang, and the tenant, Ms Teng. The dispatcher reported that the tenant was trying to move out, and that she had told Mr. Wang that her husband had died last week. The husband was said to have died of a heart attack. The information was that the tenant was still on scene.

[15] Shearer arrived shortly after Kumar. He proceeded downstairs to the basement apartment, where he saw Kumar, Ms Teng and Mr. Wang in the kitchen area talking in what appeared to be a calm tone. When Shearer looked across the apartment, he could see, through an open door, the shape of a human body on the floor of a storage closet The body was covered with what appeared to be a black blanket. Shearer was asked whether at that point he had any opinion about what was going on? He responded: “I thought ‘this is kind of strange’, but we see a lot of strange things in the course of being a police officer, and so while I recognized it as a dead body but sometimes we see dead bodies every day for a week straight…”

[16] At that point, Shearer asked Kumar what was going on. His recollection was that Kumar had not learned anything more than what had been broadcast over the radio. Shearer was asked whether he had formed any thoughts about whether a crime had been committed. He said: “No. Obviously it’s strange that she is saying to us that her husband had died the week before and he’s in a closet covered with some blankets and some grey foam tiles over his head, but there could have been some cultural differences, I didn’t know, that was the first thought that went through my mind, that it was very strange, but I did not know that anything criminal had happened.” Even though the information was that the deceased had died the week before, he testified, he still regarded it as a sudden death.

[17] Accordingly, Shearer asked Ms Teng what had happened. He was asked whether he had considered cautioning her before asking that question. He responded: “No, because she was simply a victim in my mind, and I just tried to get an idea of what had happened… I tried to get the who, what, where of the whole situation, and she said that that was her husband, and that he had died of a heart attack last Friday. I asked how she knew he had died of a heart attack and she said that he had had many heart attacks before. I asked her where he died, and she said she had dragged him from the bedroom to the closet.”

[18] Shearer testified that his perception of what he was looking at and what the scene meant did not change as a result of his conversation with the defendant. He said, “It was strange, and it may have gotten stranger, but no, my perception of her had not changed.” He did have Kumar take her over to the kitchen table and have her sit down but he did this, he testified, because he was concerned about her fainting. Further, he assumed that she would be upset that her husband was dead and he wanted to keep her away from his body. He said that “as we would anytime there was a sudden death, I was just protecting the scene.”

[19] He was asked what he would have done had the defendant attempted to leave. He said “She never did try to leave, so it’s kind of a moot point, but if she did try to leave I would maybe have to detain her”. Why? “Because we do need to speak to her about her dead husband and what has happened there, so she can’t just walk away.” In cross-examination, he said “if she wanted to leave and tried to leave I would have stopped her”. He repeated, however, that it was a hypothetical, because she did not try to leave. He explained that trying to leave could have changed his view of her, that it might have indicated that she was possibly more than a mere victim.

B. The Issues

[20] The defendant is self-represented. In anticipation of this situation, the case management judge (Justice McMahon) made an order on July 19, 2016 appointing Richard Litkowski to act as amicus curiae. Because of her view that to require her to proceed without counsel is unfair and unlawful, the defendant refused to participate in the voir dire to determine the admissibility of her statements to Kumar or Shearer. In order to ensure that I was apprised of all the circumstances in relation to the voluntariness issue, I authorized Mr. Litkowski to cross-examine the witnesses called by the Crown and to make submissions in relation to whether the Crown had met its burden of proof.

[21] The defendant did not file any applications to exclude her statements to the police on the basis of violations of the Charter. Because counsel who had represented her in the past had taken the position that the defendant’s statements should be excluded on the basis of violations of ss. 10(a) and (b) of the Charter, I authorized Mr. Litkowski to cross-examine the police witnesses on the voluntariness voir dire with a view to bringing to light anything that might suggest that the statements were obtained in a manner that breached the defendant’s Charter rights and to make any submissions he deemed to be justified in support of a position that such breaches occurred.

[22] In his cross-examination of Constables Kumar and Shearer, Mr. Litkowski focused on two questions of importance, namely whether at the time the statements were made the defendant was a suspect and whether she was detained.

C. The Applicable Principles

(i) Voluntariness

[23] The nature and incidence of the burden of persuasion in relation to voluntariness is well settled. In order for a statement made by a defendant to a person in authority to be admissible at the instance of the Crown, the Crown must prove beyond a reasonable doubt that the statement was voluntary. The assessment is contextual and case-specific. While all of the circumstances surrounding the making of the statement will be relevant, of prime concern will be whether the statement was induced by hope of advantage or fear of prejudice emanating from the police in the form of promises, threats or other mistreatment, whether the statement was obtained in oppressive circumstances, whether the maker of the statement had an operating mind, whether the police employed improper trickery, and whether the defendant was aware of his or her jeopardy. The last concern is important because “voluntariness implies an awareness about what is at stake in speaking to persons in authority, or declining to assist them”: R. v. Worrall, [2002] O.J. No. 271, at paragraph 106 (Sup. Ct.); R. v. Roy, [2002] O.J. No. 5541, at paragraph 255 (Sup. Ct.). Those concerns are not separate tests but rather factors than may operate together to undermine confidence in the voluntariness of what was said to the police.

[24] Not all statements made by a defendant to a person in authority are subject to the requirement of proof of voluntariness. Whether the requirement is engaged depends on the status of the defendant at the time the statement was made. In R. v. Oickle (2000), 2000 SCC 38, 147 C.C.C. (3d) 321 (S.C.C.), Justice Iacobucci stated, at page 340, “the confessions rule applies whenever a person in authority questions a suspect”. The distinction between suspects and mere witnesses is drawn because what is at stake in speaking to an investigator for a person suspected of culpable involvement is significantly different than what it is for a mere witness. In order to ensure that a person suspected of culpable involvement is aware of what is at stake, the counsel of prudence is to caution the person that he or she need not say anything and that if the person does speak what the person says can be given in evidence: R. v. A.D., [2003] O.J. No. 4901, at paragraph 69 (Sup. Ct.).

[25] The assessment of whether a person questioned by the police was a suspect has implications for the admissibility of the person’s responses, therefore, in two respects. First, it determines whether the voluntariness rules apply at all. Second, if those rules do apply, it is relevant to a determination of whether the person was aware of what was at stake in deciding to speak to the police. That is not to say that persons suspected of involvement in a crime have a right to be told that they are suspects. Generally speaking, the significance of a failure to provide that information is confined to its impact on the assessment of voluntariness. Even where a person is a suspect, “the absence of the standard caution is only one factor to be considered in the voluntariness analysis – just as the presence of such a caution does not automatically lead to the conclusion that a statement is voluntary”: R. v. E.B., 2011 ONCA 194, at paragraph 88.

[26] Various formulations of the test to be applied in deciding whether a person was a suspect can be found in the case law. One formulation, articulated by Justice Watt J. in Worrall, supra, at paragraph 104, is whether the facts known to the investigators “would alert any reasonably competent investigator to the realistic prospect” that the person may have been culpably involved in the matter being investigated.” In R. v. J.R., [2003] O.J. No. 718 (Sup. Ct.), at paragraph 19, Justice O’Connor observed that whether the requirements of the test are met “is a question of fact in each case.” See also R. v. Morrison, [2000] O.J. No. 5733, at paragraph 50 (Sup. Ct.), and R. v. A.D., supra, at paragraph 75.

[27] In the course of his helpful submissions, Mr. Litkowski referred to the judgment of the Supreme Court of Canada in R. v. Singh, 2005 SCC 48, at paragraphs 32 and 33, where the majority adopted as sound advice the following statement from Justice Marin’s text Admissibility of Statements (9th ed.):

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

[28] The majority stated that “even if the suspect has not formally been arrested and is not obviously under detention, police officers are well advised to give the police caution in the circumstances described by Marin.” [emphasis added]

[29] I do not read the Supreme Court’s approval of Justice Marin’s advice as an effort to define when a person becomes a suspect. The majority introduced the quoted passage by saying that it “provides a useful yardstick for the police on when they should caution a suspect” [emphasis added]. That is, the issue being addressed was when someone who is a suspect should be given a caution, not what makes a person a suspect to begin with. I do not think that the Supreme Court can be taken to have held that the fact that a police officer would have detained a person had the person attempted to leave the scene establishes that the person was a suspect. To ask what the police would have done had a witness or other person attempted to walk away is to introduce an additional circumstance beyond those that actually existed at the time of the interaction. Depending on the situation, attempting to walk away may be a suspicious circumstance.

(ii) Detention

[30] In R. v. Grant, 2009 SCC 32, the Supreme Court affirmed what had previously been stated in R. v. Mann, 2004 SCC 52, at paragraph 19, namely:

[The] police cannot be said to ‘detain’, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be ‘detained’ in the sense of ‘delayed’, or ‘kept waiting’. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.

[31] The majority in Grant added:

[While] the forms of interference s. 9 guards against are broadly defined to include interferences with both physical and mental liberty, not every trivial or insignificant interference with this liberty attracts Charter scrutiny. To interpret detention this broadly would trivialize the applicable Charter rights and overshoot their purpose. Only the individual whose liberty is meaningfully constrained has genuine need of the additional rights accorded by the Charter to people in that situation.[^1]

[32] The majority in Grant concluded that “[d]etention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.”[^2] With respect to psychological detention, the majority stated that “the focus must be on the state conduct in the context of the surrounding legal and factual situation, and how that conduct would be perceived by a reasonable person in the situation as it develops.”[^3] This requires “a realistic appraisal of the entire interaction as it developed, not a minute parsing of words and movements”[^4]. In that regard, the majority held:

We may rule out at the outset situations where the police are acting in a non-adversarial role and assisting members of the public in circumstances commonly accepted as lacking the essential character of a detention. In many common situations, reasonable people understand that the police are not constraining individual choices, but rather helping people or gathering information. For instance, the reasonable person would understand that a police officer who attends at a medical emergency on a 911 call is not detaining the individuals he or she encounters. This is so even if the police, in taking control of the situation, effectively interfere with an individual's freedom of movement. Such deprivations of liberty will not be significant enough to attract Charter scrutiny because they do not attract legal consequences for the concerned individuals. [emphasis added]

Another often-discussed situation is when police officers approach bystanders in the wake of an accident or crime, to determine if they witnessed the event and obtain information that may assist in their investigation. While many people may be happy to assist the police, the law is clear that, subject to specific provisions that may exceptionally govern, the citizen is free to walk away: R. v. Grafe (1987), 1987 CanLII 170 (ON CA), 36 C.C.C. (3d) 267 (Ont. C.A.). Given the existence of such a generally understood right in such circumstances, a reasonable person would not conclude that his or her right to choose whether to cooperate with them has been taken away. This conclusion holds true even if the person may feel compelled to cooperate with the police out of a sense of moral or civic duty…. [emphasis added]

In the context of investigating an accident or a crime, the police, unbeknownst to them at that point in time, may find themselves asking questions of a person who is implicated in the occurrence and, consequently, is at risk of self-incrimination. This does not preclude the police from continuing to question the person in the pursuit of their investigation. Section 9 of the Charter does not require that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Nor does s. 10 require that the police advise everyone at the outset of any encounter that they have no obligation to speak to them and are entitled to legal counsel.[^5]

D. Application to this Case

(i) Voluntariness

(a) the statement to Constable Kumar

[33] Whether the admissibility of the statement that the defendant made to Constable Kumar is subject to a requirement of proof of voluntariness depends on whether the defendant was a suspect at the time she spoke to Kumar.

[34] Constable Kumar was a confused and confusing witness on this issue. It was obvious that he has an imperfect grasp of the meaning in law of the concepts of ‘suspect’ and ‘detention’. Notwithstanding his contradictory and confusing answers I am satisfied that at the time he asked the defendant ‘what happened’, she was not a suspect in the relevant sense. To paraphrase the test suggested by Justice Watt in R. v. Worrall, supra, the facts known to Kumar at the time, minutes after he had arrived in the apartment, would not have alerted a reasonably competent investigator to the realistic prospect that the defendant was culpably involved in the death of her husband. At that point, Kumar had no idea and could not have had any idea how the deceased had met his death or, if it was not a natural death, who was involved in causing it. The situation may well have merited the adjective ‘suspicious’, but the fact that a situation is suspicious does not mean that every person present is a suspect.

[35] As indicated above, both Kumar and Shearer were asked whether, if the defendant had attempted to leave the apartment, they would have allowed her to go. As amicus, Mr. Litkowski submitted that Kumar’s response that he would not have allowed her to just walk away, even if she was only a witness or a victim, was an indication that she was a suspect. In that respect, he relied on the portion of the judgment in Singh that I discussed earlier. As I have said, one cannot read what was said in Singh as an attempt to define when a person becomes a suspect. Rather, it was an effort to assist with respect to when someone who is a suspect should be cautioned. If, having called 911 to report a dead body in her apartment, the defendant had attempted to leave the apartment upon the arrival of the police, her conduct would have altered the calculus with respect to her potential culpable involvement. That circumstance did not exist at the time of the defendant’s interaction with Kumar. Thus, it does not assist with respect to whether on the facts that did exist, and that were known to the Kumar, a reasonably competent investigator would have been alerted to a realistic prospect that the defendant was culpably involved in the death.

[36] However, assuming that the defendant was a suspect at the time Kumar asked her ‘what happened’, and thus that the admissibility of her response is subject to the voluntariness rules, I am satisfied beyond a reasonable doubt that the Crown has met its onus. The context in which Kumar came to ask the question that elicited the statement is important. He was at the scene, inside the defendant’s apartment, in part because of the 911 call she had made to report that her husband was dead. In making that call, she had to know that she was in effect inviting the police to come to her apartment to investigate what had happened. Once Kumar arrived, it took several minutes before he came to the realization that the defendant’s husband’s body was in a storage closet. As I have said, however, Kumar had no idea at that point how the deceased had met his death and whether it was due to natural causes. The question that he asked was not accusatorial. It was merely an attempt to understand what was undeniably a bizarre situation.

[37] Prior to asking the question, Kumar had done nothing that could have amounted to an inducement for the defendant to speak to him. He had done nothing that would have given the defendant either hope of advantage if she were to make a statement or fear of prejudice if she did not. He made no promise or threats. He did not in any other way mistreat her. The situation inside the apartment was chaotic and confusing, but the atmosphere was not oppressive. The direction that Kumar gave to the defendant prior to the discovery of the body to remain in the bedroom while he sorted the situation out could not reasonably have been seen as changing the role of the police in responding to her 911 call to an adversarial one.

[38] If the defendant was a suspect, the counsel of prudence would have been to provide her with a standard police caution. The absence of a caution to a suspect is a relevant consideration in relation to voluntariness but it is only one of many factors to be taken into account. It does not dictate a finding that a statement was not voluntary. In the particular circumstances of this case, I am satisfied that the absence of a caution does not give rise to a doubt with respect to the voluntariness of the defendant’s answer. To put it another way, notwithstanding the absence of a caution, I am satisfied beyond a reasonable doubt that the response that the defendant gave to Constable Kumar was voluntary.

(b) the statement to Constable Shearer

[39] Constable Shearer’s evidence was clear that he did not regard the defendant as a suspect. He testified that while he did not know what to make of the bizarre scene he encountered inside the defendant’s apartment, he was a long way from linking the defendant to culpable involvement in causing a death. I am satisfied that in the same circumstances, a reasonably competent investigator would have come to the same conclusion.

[40] As was the case with Constable Kumar, Shearer was asked what he would have done had the defendant attempted to leave the apartment. He said, “I would maybe have to detain her…because we do need to speak to her about her dead husband and what has happened there, so she can’t just walk away.” He explained that trying to leave could have changed his view of her, that it might have indicated that she was possibly more than a mere grieving widow. That is, it might have changed the calculus with respect to whether she was a suspect. For the reasons I set forth above with respect to the defendant’s statement to Kumar, I do not accept that the fact that attempting to leave may have changed the calculus means that without that added circumstance the defendant was a suspect.

[41] However, assuming that the defendant was a suspect and that the voluntariness rules were engaged, I am satisfied beyond a reasonable doubt that the Crown has met its onus of proving that her statements to Shearer were voluntary. The context in which Shearer came to ask the question that elicited the statements is largely the same as for the question asked by Kumar, namely that the officers were responding to the 911 call that the defendant had made. At the time Shearer asked his question of the defendant, he, like Kumar, had no idea how the deceased had met his death and whether it was due to natural causes. The question that he asked was merely an attempt to understand the strange situation that he had walked into.

[42] Prior to asking the question, Shearer had done nothing that would have given the defendant either hope of advantage if she were to make a statement or fear of prejudice if she did not. He made no promise or threats and he did not mistreat her in any other way. The atmosphere was not oppressive. As I have said, if the defendant was a suspect, the counsel of prudence would have been to provide her with a standard police caution. While the absence of a caution is a relevant consideration in relation to voluntariness it only one of many factors to be taken into account. In the particular circumstances of this case, I am satisfied that the absence of a caution does not give rise to a doubt with respect to the voluntariness of what the defendant said to Constable Shearer.

(ii) Was the defendant detained for the purposes of the Charter?

[43] I am satisfied that the defendant was not physically or psychologically detained, either at the time when she was questioned by Constable Kumar or at the time when she was questioned by Constable Shearer.

[44] The only evidence of an interference with the defendant’s freedom of movement that preceded Kumar’s question was his direction almost immediately after he arrived in the apartment that the defendant should wait in the area of the bedroom. Kumar did that because both the defendant and Mr. Wang were talking to him at once, in accented English, and he needed to separate them in order to find out what was going on. Bearing in mind that Kumar was in the apartment in part because of the defendant’s call to 911, a reasonable person in the defendant’s position would not think that the direction to wait in the bedroom constituted a detention. As the Supreme Court of Canada said in Grant, “such deprivations of liberty [are] not...significant enough to attract Charter scrutiny…”

[45] At some point Constable Shearer directed Kumar to have the defendant sit down at the kitchen table. My understanding of the evidence is that this occurred after Shearer’s conversation with the defendant, but whether it happened before or after it did not amount to a detention. Shearer gave that direction for two reasons: he was concerned about the defendant fainting, and he wanted to keep her away from her husband’s body because he thought seeing it might upset her. Whether or not she understood the reasoning, she would not reasonably have interpreted a direction to sit down at the table at this point as a detention.

[46] Accordingly, I am satisfied that the defendant was not physically detained at the time she spoke to either of the officers.

[47] With respect to psychological detention, the question is whether a reasonable person in the defendant’s position would conclude that she did not have the freedom to choose whether or not to cooperate with the police. In that respect, the circumstances giving rise to the encounter, as they would reasonably be perceived by the defendant, are a relevant consideration. As has been noted several times, Kumar and Shearer were in the defendant’s apartment in response to a 911 call that she had made in which she reported that her husband was dead. That call was in effect a request for the police to come to the scene. In Grant the majority stated that a reasonable person “would understand that a police officer who attends at a medical emergency on a 911 call is not detaining the individuals he or she encounters. This is so even if the police, in taking control of the situation, effectively interfere with an individual's freedom of movement.” The focus of the police involvement, namely to investigate the presence of a dead human body, had not changed prior to the questions asked by either officer (cf. R. v. Wong, 2015 ONCA 657).

[48] The nature of the police interaction with a defendant is also a relevant consideration in relation to psychological detention. In this case, there was minimal contact between the defendant and Kumar before he asked her ‘what happened’. The question was not adversarial or accusatorial. It was a completely natural question for a person responding to a 911 call to ask of the person who had made the call and I am satisfied that a reasonable person would see it that way. Similarly, there seems to have been no contact at all between Shearer and the defendant before he asked her what had happened. Again, his question was not adversarial or accusatorial and was no more that what a person who had called 911 would expect to be asked by a police officer responding to the call.

[49] Accordingly, I am satisfied that the defendant was not detained at the time she spoke to Constables Kumar and Shearer, and thus any statements that she made to them were not obtained in a manner that infringed her rights under the Charter.

MacDonnell, J.

Released: January 26, 2017

[^1]: At paragraph 26 [^2]: At paragraph 44 [^3]: At paragraph 31 [^4]: At paragraph 32 [^5]: Paragraphs 36 to 38