SOSNA J.:

Introduction

[1] The Applicant David Knight is charged with first-degree murder, conspiracy to commit murder, and arson in the death of his wife Carmella Knight (Carmella). He applies to exclude into evidence a DVD statement (the “Statement”) provided to the police, pursuant to s. 24 (2) of the Canadian Charter of Rights and Freedoms. He contends the statement was obtained in violation of ss. 7 and 10(a) and (b) of the Canadian Charter of Rights and Freedoms.

[2] The Applicant further submits that the Statement’s admission is contingent on the Crown proving that the Statement was provided voluntarily.

[3] The Crown submits that the Applicant’s allegedly breached Charter rights were not yet engaged because he was neither under arrest nor detained at the time he made the Statement. Consequently, the Applicant’s ss. 7 and 10(a) and (b) rights were not violated, so the Statement is admissible.

[4] The Crown further argues that the Statement was elicited in the absence of any promises, favours, inducements, violence or threats of violence. Therefore, the Statement was provided voluntarily and is admissible.

[5] The Statement was filed as Exhibit 1 and the accompanying transcript Exhibit 1 B in this application.

Surrounding Facts

[6] At 7:56 P.M. on September 15, 2014, PC Fong of the Durham Regional Police responded to an assist fire call at 1164 Pebble Stone Crescent in Pickering, the registered home of the Applicant and Carmella. Their garage was engulfed in flames and a car registered to Carmella was parked in the driveway. A neighbour advised Fong that the home owners were amid a separation and custody dispute. A police record check confirmed that police attended the residence on a previous occasion regarding a domestic complaint.

[7] Fong was advised that a body burned beyond recognition was discovered in the garage and that a purse located in the residence contained Carmella’s identification. Fong called Carmella’s mobile phone number but received no reply. Fong then called the Applicant’s mobile number and asked him to visit the police station. The Applicant responded to the call while in transit on Highway 401. He asked Fong if his requested attendance involved Carmella making another complaint against him. Fong provided no response. The Applicant arrived at the police station shortly thereafter.

[8] At the station, the Applicant was met by Supervising Staff Sergeant McNally and taken to a private interview room. Again, the Applicant asked if his wife had filed a complaint against him. McNally explained that a fire occurred at his home and a body was located inside. McNally indicated that police were uncertain the body was Carmella’s but that “one would tend to believe it was” (p. 5, at 26-27). He stated that the Applicant probably had a hundred questions that could be answered by a detective who would speak to him shortly. McNally left the interview room, and within moments Detective McArthur entered.

[9] McArthur asked if the Applicant was agreeable to answer some questions for a couple of minutes to find out what was going on. He reiterated that police were uncertain if the charred body discovered was his wife or someone else. He questioned the Applicant for two hours, while remaining inside the interview room over two-and-a-half hours. He advised the Applicant that the interview would be recorded but did not advise him that he had no obligation to answer any questions and was free to go whenever he wished.

Applicable Statutory Principles

[10] Section 7 of the Charter states:

Life, liberty and security of person - Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with principles of fundamental justice.

[11] Section 10(b) of the Charter:

Arrest or detention - Everyone has the right on arrest or detention

(a) To be informed promptly of the reasons therefore;

(b) to retain and instruct counsel without delay and to be informed of that right.

The Test for Voluntariness and Relationship to the Charter

[12] The test for voluntariness of a statement at common law was set out in Ibrahim v. R., [1914] A.C. 599 (Hong Kong P.C.) at p. 609; the Supreme Court of Canada adopted the "Ibrahim rule" in many cases, including R. v. Rothman, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640:

…no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.

[13] As noted in R. v Oikle, 2000 SCC 38, [2000] 2 S.C.R. 3:

[71] …the analysis under the confessions rule must be a contextual one…a court should strive to understand the circumstances surrounding the confession and ask if it gives a rise to a reasonable doubt as to the confessions voluntariness…If a trial court properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one…

[14] Further in R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405:

[35] This modern expansive view of the confessions rule… clearly includes the right of the detained person to make a meaningful choice whether or not to speak to state authorities…

[36] On the question of voluntariness, as under any distinct s. 7 review based on an alleged breach of the right to silence, the focus is on the conduct of the police and its effect on the suspect's ability to exercise his or her free will. The test is an objective one. However, the individual characteristics of the accused are obviously relevant considerations in applying this objective test.

The Issues

[15] The three issues in this application are as follows:

a. Was the statement given to McArthur voluntary/compliant with s. 7 of the Charter?

b. Was the statement given to McArthur taken in violation of s. 10(a) and (b) of the Charter?

c. Do s.7 and/or s. 10(a) and (b) violations warrant exclusion of the Statement under s. 24(2) of the Charter?

The Applicant’s Position

[16] The Applicant submits that he was continually detained for two-and-a-half hours, beginning at the moment he spoke to McNally and concluding at the end of McArthur’s questioning. He submits he was never advised that he was free to leave and under no legal obligation to provide a statement. In these circumstances the Applicant was deprived of the ability to make a meaningful choice to exercise his right to silence, thus breaching his s. 7 rights.

[17] The Applicant further submits that during his detention he was never informed of the reasons for the detention pursuant to s. 10(a), nor was he advised that he could retain and instruct counsel without delay pursuant to s. 10(b). As the Charter violations independently and or collectively were deliberate and serious, the Applicant argues the entirety of the police questioning as set out in Exhibit 1 A and 1 B. be excluded from evidence pursuant to s. 24(2).

Crown’s Position

[18] The Crown submits that the Applicant attended voluntarily at the police station. The Crown argues that, based on discovery of an unexplained fire and unidentified charred body in the Applicant’s home garage, McArthur exercised his to authority to interview the Applicant pursuant to the Coroners Act, R.S.O. 1990, c. C.37 and the Fire Marshals Act, R.S.O. 1990, c. F.17. Additionally, as a police officer, he was authorized to make inquiries about an unexplained incident to shed light on what might have happened.

[19] The Crown argues that police had not yet commenced a criminal investigation when the Applicant was interviewed, since the cause of the fire was yet undetermined, and the identity of the body and cause of death remained unknown. During the interview McArthur expressed sympathy and empathy for the Applicant’s possible loss. The Applicant responded freely and comfortably to the questions posed and was free to leave at any time.

[20] In the absence of a criminal investigation the Crown submits the Applicant was never detained or arrested. As such, the police questioning of did not engage or breach ss. 7 and 10(a) and (b). Alternatively, if any breach is found, the Crown argues it was inadvertent and committed in good faith by an experienced officer, thus admissible into evidence pursuant to s. 24(2).

Analysis and Findings

(a) Was the statement given to Detective McArthur voluntary/compliant with section 7 of the Charter?

[21] McArthur testified that, during his entire questioning, he considered the Applicant a victim of an unexplained fire at his home and a victim of his wife’s possible death. He testified he did not consider the Applicant a suspect who may have had some involvement in the fire at his home and possibly the death of his wife. He testified the information provided by the Applicant could assist the police, the Coroner and Fire Marshall to determine what happened. As such, with the same goals in mind, he considered the Applicant and he were on the same team.

[22] In cross examination McArthur acknowledged that—as a detective and police officer with 16 years’ experience—an unexplained fire and charred body in the garage of the home, raised three possibilities: suicide, death by misadventure, or foul play. He testified the three possibilities took no precedence. When challenged that the investigative inquiries he put to the Applicant were in reality questions that would be posed to a suspect, McArthur adamantly denied it.

[23] In over two hours of questioning McArthur partly canvassed the following:

a. The Applicant’s whereabouts and activities on the day of the fire from waking up to the body’s discovery to the requested for his attendance at the police station;

b. The Applicant’s whereabouts and activities the full day before the fire;

c. If he could confirm those activities through outside sources;

d. The last time the Applicant contacted or communicated with his wife, under what circumstances, and what was said;

e. The state of the Applicant’s marriage: if it was happy; if the parties separated; if so, what were the issues in dispute and level of acrimony; if the Applicant caused the estrangement; if the Applicant had an extramarital affair and if so what the name and email of the other party was; and if his wife Carmella had an affair;

f. How much money the Applicant paid lawyers in the domestic disputes;

g. If Carmella contemplated suicide;

h. If the Applicant accessed online pornographic sites;

i. Details of the Applicant’s employment, present and historical: his present income; and if he was ever fired;

j. if his wife Carmella had life insurance?

[24] McArthur testified he had authority to investigate the matter and question the Applicant pursuant to the Fire Marshalls Act and Coroners Act. There is no question he is correct, considering he was advised of an unexplained fire and a charred body in a garage. However, there is no relevance between the Applicant’s pornographic site access, extramarital affairs, or wife’s life insurance and the Fire Marshalls Act and Coroners Act.

[25] Similarly, McArthur is correct that his general duties as a police officer include investigating unexplained and/or suspicious incidents that may involve criminal conduct. McArthur testified he did just that: questioned the Applicant about an unexplained house fire in which his wife may have died. McArthur was adamant in cross examination that, in his eyes, the Applicant was never a suspect but rather a victim of tragic circumstances.

[26] I find it strains credulity that the Applicant as a victim and not a suspect would be asked probing and detailed questions about the state of his marriage, reasons for its breakdown his infidelity, his spouse’s infidelity, his income, his whereabouts the day of—and before—the fire, including names of witnesses to corroborate his movements.

[27] More directly, the following exchange contradicts McArthur’s assertion that the Applicant was never a suspect in the possible death of his wife:

McArthur And I’ve asked you before and I’m going to ask you again, so is-have- did you do anything to —that would have helped cause her [Carmella] – if it is her, but I’m going to assume right now that it is. If it is her that’s in the garage, did you do anything to cause that to happen?

Knight: No,

McArthur: No?

Knight: No.

McArthur: Do you understand why I would ask?

Knight: I understand why you’re asking.

McArthur: Cuz people aren’t…supposed to die.

(Transcript pg. 142 lines 29 -32. Pg. 143 lines 1-19.)

[28] Nor do I find, as the Crown submits, that because the causes of the fire and death and identity of the body were unknown, police had no grounds to embark on a criminal investigation, thus disengaging the Applicant’s allegedly breached Charter rights.

[29] The Court in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 does not adopt this restrictive view (although commenting on general inquiries made to by patrolling officers the observations are analogous in the present matter):

[41] …general inquiries by a patrolling officer present no threat to freedom of choice. On the other hand, such inquiries can escalate into situations where the focus shifts from general community-oriented concern to suspicion of a particular individual. Focussed suspicion, in and of itself, does not turn the encounter in a detention. What matters is how the police, based on that suspicion, interacted with the subject. The language of the Charter does not confine detention to situations where a person is in potential jeopardy of arrest....The police must be mindful that, depending on how they act and what they say, the point may be reached where a reasonable person, in the position of that individual, would conclude he or she is not free to choose to walk away or decline to answer questions.

[30] Given the circumstances—an unexplained fire in the home, and possible death of his wife—surrounding the Applicant’s questioning, the nature of McArthur’s probing questions singling him out for focused investigation, the questioning’s two hour duration and location at the police station, I find that the Applicant’s s. 7 Charter rights were breached when he was detained (Grant para.44).

[31] The Applicant’s detention is further borne out by McArthur’s concerted efforts to continue questioning, despite the Applicant’s request to leave the interview room for a cigarette.

[32] Approximately 90 minutes into the interview, McArthur advised the Applicant that he was about to leave the interview room to determine if police had any new information. McArthur conceded in cross examination that the true purpose of leaving the interview on this and earlier occasions was to consult with police officers who were monitoring the questioning.

[33] The Applicant then asked if he could leave the interview room, go outside and have a cigarette. McArthur neither approved nor denied but side-stepped the request as follows:

McArthur: […] So let me go talk to my partner and see if there’s any more information that they might have learned […] I’ll be back in a second.

Knight: There’s no chance of me going outside for a smoke?

McArthur: For a dart?

Knight: Yeah.

McArthur: I’ll go out for – with one in a little while. Okay? I’m not going to have one.

Knight: Well, I was…

McArthur: I might…

Knight: …going to say I don’t think you smoke.

McArthur: No, no, no, no, no. I’m too good looking for that, so – hang tight.

McArthur: Oh, man. Hang tight. Okay?

(p. 108, at 24-30, p. 109 at 1-25).

[34] McArthur left the interview room and returned 15 minutes later with a cup of coffee. The Applicant remained in the interview room.

McArthur: Still here? […] I just ran across the street and grabbed that for you [coffee].[…] So, I’m just going to ask you a couple of more questions and then will get you uh, we’re going to take you out for a dart.. Okay? […]

(p. 109, at 31-2, p. 110 at 1-7).

[35] McArthur then questioned the Applicant about witnesses who may have seen him at a hockey rink in Toronto when the fire happened. The Applicant provided two names. McArthur questioned the Applicant about possible incendiary products in the garage of his home. As previously, the Applicant was also questioned—among other things—about reasons for his marriage breakdown, if he had an affair, the name of the third party and her e-mail address, and his annual income.

[36] McArthur ended that portion of the interview with this exchange:

McArthur: Okay. Just hang tight for a second. Okay?”

[McArthur left the interview room and returned after several minutes]

McArthur: Okay, a couple of quick questions. […] who’s [Carmella’s] uh, phone provider? Her cell phone provider?”

Knight: I believe it’s still with Telus.

(pp. 146, at 19-29).

The questioning concluded shortly after this exchange. In total, the Applicant remained in the interview room for a total of two-and-a-half hours without leaving.

[37] McArthur testified that he interpreted the Applicant’s statement: “[t]here’s no chance for me going outside for a smoke?” as merely expressing desire for a cigarette; not requesting permission to go outside for one. I find this interpretation as disingenuous and self-serving as McArthur’s previous testimony characterizing the Applicant as a victim and not a suspect in his questioning.

[38] I find there is no reason the Applicant would ask permission to leave the interview room for a cigarette unless he believed and/or perceived he could not leave without it.

[39] Accordingly, I find he was detained, particularly since police never advised him of the lack of any obligation to answer any questions nor of his freedom to leave at any time. As held in Grant:

[39] … police investigative powers are not without limits. The notion of psychological detention recognizes the reality that police tactics, even in the absence of exercising actual physical restraint, may be coercive enough to effectively remove the individual's choice to walk away from the police. This creates the risk that the person may reasonably feel compelled to incriminate himself or herself. Where that is the case, the police are no longer entitled simply to expect cooperation from an individual. Unless, as stated earlier, the police inform the person that he or she is under no obligation to answer questions and is free to go, a detention may well crystallize…

[40] Despite finding the Applicant was detained and his s.7 rights breached, I do not find his detention commenced with his conversation with McNally, as the Applicant submits.

[41] As noted earlier, McNally advised the Applicant of the fire at his home and the discovery of a charred body, possibly his wife. The Applicant, without prompt, gave information about his marriage breakdown and related conflicts, including his wife’s alleged breach of a custody agreement. The Applicant asked on two occasions if his attendance at the station was as a result of her alleging a further assault.

[42] McNally asked no questions and sought no further information from the Applicant. He did no more than advise the Applicant why he was asked to visit the police station. The contact between them was brief. In these circumstances, the Applicant was not detained. Therefore Exhibit 1B from pages 1 to 9 at line 10, the interaction between McNally and the Applicant, is admitted into evidence.

(b) Is the statement given to Detective McArthur in violation of s 10 (a) and (b) of the Charter?

[43] McArthur testified that, before questioning, he provided what he described as a “soft caution” to the Applicant in the following exchange:

McArthur: …Are you okay answering some questions? Okay. Now I have some certain rules of my job. I have to tell you about a couple of things.[...]

McArthur: […] So, everything we are saying in here is being recorded. So, why do you think we recorded it?

Knight: Cuz evidence.

McArthur: […] if you were to tell me that you did something, a crime, what do you think I would use it with the information that you gave me?

Knight: It would be evidence.

McArthur: Uh, and provided it to – to – potentially, it could be - go into court. Okay? [...]

McArthur: If you - down the road if you – if you were charged with an offense or we figured out that there was a criminal offense, you can get - there are lawyers that you can get. You could either speak to your lawyer or you – or we – there’s a duty counsel lawyer that we can put you in contact. So, if at any time you go I feel as if I should talk to a lawyer, you have that right. Okay, do you understand that?

Knight: Kind of.

McArthur: Okay. So one other thing, has anybody promised you anything, like so – did anybody say tell the police officers what happened at the fire or anything like that?

Knight: Nobody’s - this is the first time I ever heard it was a fire was…

McArthur; That’s – that’s fine. So, nobody’s – it’s one of the things we have to offer – say if you were promised. So, you haven’t been promised anything?

Knight: I didn’t…

McArthur: Okay. No, no, no, that’s fine. […] you have to understand that I’m a police officer. So, if you tell me something, like a crime, I potentially – charges could be laid.

(p. 10, at 14 to p. 12, at 4)

[44] I find McArthur’s “soft caution” is no more than an amalgamation of incomplete paraphrasing transported from the standard police caution, combined with a partial, qualified, and misleading rendition of the Charter’s s. 10(b). The wording in ss. 10(a) and (b) is clear. In part, once detained the subject must be informed promptly of the reason for detention and informed of the right to retain and instruct counsel without delay.

[45] The s. 10 warning McArthur gave the Applicant falls far short of the required rendition. Section 10(a) was omitted and the s. 10(b)’s explanation was incomplete and misleading. In totality, McArthur provided an incomprehensible s. 10 warning. When McArthur asked if the Applicant understood the overview just provided, he replied “[k]ind of”. Despite that answer, McArthur took no further steps to help the Applicant’s understand his full Charter rights.

[46] For these reasons, I find the statement provided to McArthur was obtained in violation of ss. 10(a) and (b).

(c) Do the Charter violations warrant exclusion of the statement provided to detective McArthur pursuant to s 24(2) of the Charter?

[47] Grant sets out three lines of inquiry to determine whether a Charter violation warrants exclusion of the evidence obtained: “the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits” (para. 85).

1. Seriousness of the Charter-Infringing Conduct.

[48] At this branch, the more severe or deliberate the breach, the greater the court’s need to disassociate itself from the breach.

[49] I find the ss. 7, 10(a) and (b) breaches to be serious. Contrary to McArthur’s characterization, he questioned the Applicant not as a victim but as a suspect. As such, the Applicant was under investigative detention. He was never explained the reasons for his detention and never informed of his rights to counsel.

Contrary to the Crown submissions, the Charter breaches were not inadvertent but rather deliberate and calculated. The police never fully and properly informed the Applicant of his Charter rights, so that he would continue answering questions ignorant of the Charter protections available in these circumstances: his rights to silence, to being informed of the reasons for his detention, and to instruct counsel without delay.

2. The impact on the Accused’s Charter-Protected Interests.

[50] As noted in Grant:

[76] This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. […] The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

[51] McArthur violated the Applicant’s basic protective interests under ss. 7 and 10(a) and (b). The Applicant’s basic rights to silence, to be informed of the reasons for his detention, and to instruct counsel without delay was significantly undermined by McArthur’s actions, which rendered his rights meaningless and hollow.

[52] Ignoring or glossing over McArthur’s actions in undermining the Applicant’s protected interests would encourage public belief in Charter rights’ insignificance. It would cultivate public cynicism and bring the administration of justice into disrepute.

3. Society’s Interest in Adjudication on the Merits.

[53] This stage of the inquiry deals with the societal interest in “[…] ensuring that those who transgress the law are brought to trial and dealt with according to law.” (R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199 (S.C.C.), at pp. 1219-20). This court must consider the reliability of the evidence and its importance to the Crown’s case. However, it must be borne in mind that it is inconsistent with the Charter’s affirmation of rights to admit that reliable evidence regardless of how was obtained. (Grant, at para. 80).

[54] The charges before the court are the most serious under the Criminal Code. However, the Crown’s case against the Applicant involves the testimony of civilian witnesses, a multitude of police witnesses, expert testimony, and forensic evidence. Exclusion of the the Applicant’s statement—not a confession but a potential credibility issue should he testify–will not defeat prosecution of this case.

[55] Considering all three lines of inquiry, individually and collectively with regard to all the circumstances—particularly concerning seriousness of the Charter breaches—I find that admitting the Applicant’s statement would bring the administration of justice into disrepute. McArthur’s questioning of the Applicant, set out in Exhibits 1A and B, is inadmissible into evidence.

[56] Lastly, finding the Applicant has satisfied this court on a balance of probabilities that his statement to McArthur was obtained in violation of his constitutional right to remain silent, the issue of the voluntariness of his statement is rendered moot (Oikle at para. 8).

Justice A. Sosna

Released: October 23, 2017

R v. Knight and MacDonald, 2017 ONSC 6334

Case Summary

SOSNA J.:

Introduction

Surrounding Facts

Applicable Statutory Principles

The Test for Voluntariness and Relationship to the Charter

The Issues

The Applicant’s Position

Crown’s Position

Analysis and Findings

(a) Was the statement given to Detective McArthur voluntary/compliant with section 7 of the Charter?

(b) Is the statement given to Detective McArthur in violation of s 10 (a) and (b) of the Charter?

(c) Do the Charter violations warrant exclusion of the statement provided to detective McArthur pursuant to s 24(2) of the Charter?

1. Seriousness of the Charter-Infringing Conduct.

2. The impact on the Accused’s Charter-Protected Interests.

3. Society’s Interest in Adjudication on the Merits.

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 3

Legislation 4