COURT FILE NO.: CR-17-70000767-0000

DATE: 20180724

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

– and –

ACHINT RANHOTRA

Applicant

Darren Hogan and Katherine Stewart

for the Respondent Her Majesty the Queen

Robert S. Richardson and Yoni S. Rahamim

for the Applicant

RULINGS RE A) UTTERANCE TO P.C. PARLIAMENT and B) STATEMENT TO DETECTIVES MAHONEY AND GOMES

THEN J.:

1At the commencement of the trial the accused sought an order excluding the utterance attributed at the scene to the accused by P.C. Parliament, who in response to the 911 call by the accused asked the accused “what happened”.

2The accused also sought to exclude the entirety of the videotaped statement subsequently made by the accused to Detective Mahoney and Detective Gomes at the police station after his arrest for careless use of a firearm and aggravated assault and after being informed that the deceased was dead.

3After a blended voir dire during which evidence was adduced outlining the circumstances of the utterance by the accused to P.C. Parliament, in order to expedite the trial, I held, on a bottom-line basis, that the utterance made to P.C. Parliament was admissible. In my view, the Crown had proved beyond a reasonable doubt that the utterance was voluntary and that the accused had failed to establish on a balance of probabilities that the utterance was obtained in contravention of sections 7, 10(a), and 10(b) of the Charter of Rights and Freedoms as in the circumstances a caution was unnecessary and the accused had not been detained.

4I also held that the videotaped statement to Detective Mahoney and Detective Gomes was inadmissible as the statement was in breach of s.10(a) and 10(b) of the Charter, as the police failed to inform the accused of the increase in his liability upon the death of the deceased with respect to the offence of manslaughter which had changed from the offences for which he was arrested, i.e., careless use of a firearm and aggravated assault and, as well, the police failed to inform him that he was being investigated for the offence of murder. The police did not give him an opportunity to consult with counsel in that regard.

5The following are my more elaborate reasons for admitting the utterance of the accused to P.C. Parliament into evidence and for ruling his statement to Detective Mahoney and Detective Gomes inadmissible.

The Utterance to P.C. Parliament

1. Factual Background

6On Saturday, March 8, at 2:35 pm the accused phoned 911 asking for police and ambulance. The dispatcher asked “Tell me exactly what happened”. The accused replied “My gun accidentally went off, my girlfriend got shot”. The accused elaborated that the gun was on the dining room table and that he was alone with his girlfriend who was still breathing, although she had been shot through the head. The accused was instructed to open the apartment door and was given specific instruction to administer first aid. The accused takes no issue with the admissibility of the 911 call.

7Four police officers arrived shortly at the apartment and entered through the open door with their guns drawn for reasons of officer safety, given the involvement of a firearm. Upon entering the bedroom P.C. Wells and P.C. Cirque observed the accused administering first aid to the victim while still on the phone to the dispatcher. Both holstered their firearms. P.C. Cirque immediately took over the administration of first aid and P.C. Wells removed the cell phone and spoke to the dispatcher informing that the police arrived. P.C. Wells then nudged the accused toward the door out of the bedroom.

8P.C. Parliament testified that he entered the bedroom immediately after the first two officers and escorted the accused out of the bedroom by placing his hand on the accused’s elbow, not to arrest him, but so as to provide P.C. Cirque and P.C. Wells with more room to attend to the victim. As P.C. Parliament and the accused exited the bedroom, P.C. Parliament asked the accused “what happened?” in order to obtain further information as to her medical condition so as to assist the victim. He did not caution the accused or advise the accused of his right to retain counsel. The accused replied “I was cleaning my gun and it went off in her head. I have to help her. I have to help her.”

9P.C. Parliament then asked the accused if there were any other firearms in the apartment and his partner P.C. Chen retrieved a rifle at the direction of the accused. No further questions were asked concerning the incident and P.C. Parliament escorted the accused out of the apartment where he informed the accused of his arrest for the offenses of reckless discharge of a firearm and aggravated assault in the hallway outside the apartment at 2:32 p.m.. P.C. Parliament read him his right to counsel and arrested him for these offences because he could not think of any others in the circumstances and read him his right to counsel.

10At 2:37 pm in the squad car the accused asked to speak to duty counsel and was informed that he would be able to do so at the police station. All of the officers testified that the demeanour of the accused at the scene was unusually calm, although PC. Parliament observed the accused to be somewhat shaken up. All of the officers also testified that with respect to radio calls by dispatchers, they keep an open mind with respect to the accuracy of the information, as their experience is that often the information given to them by police dispatchers proves to be inaccurate with respect to what they encounter at the scene.

11On cross-examination P.C. Parliament stated that given the information provided on the 911 call by the accused as to the accidental nature of the shooting there was only a possibility that the accused was a suspect and not a certainty, as the 911 call did not preclude others from being involved. P.C. Parliament stated that when he asked what happened he did so to investigate the extent of her injuries, i.e. to confirm that she had been shot in the head and to determine if there were other injuries.

12In re-examination, he reiterated that prior to the utterance the accused was a potential suspect but not a determined suspect. P.C. Parliament testified that in the circumstances no one would have been free to leave the scene, as he was engaged in an investigative detention.

analysis

1) Position of counsel

13The general position of the accused is that the utterance to P.C. Parliament was involuntary in that the officer knew that the accused was a suspect immediately upon his arrival at the scene and that his failure to caution the accused before inquiring “what happened” rendered the accused’s subsequent utterance involuntary in breach of section 7 of the Charter.

14Secondly, it is submitted that removing the accused from the bedroom by grabbing him by the arm constituted both a psychological and physical detention and accordingly the officer was obliged to inform the accused of his right to retain and instruct counsel. Accordingly, his failure to do so constituted a breach of sections 10(a) and 10(b) of the Charter.

15The Crown submits that the court accept the evidence of P.C. Parliament that the accused was not a suspect and that accordingly no caution was necessary or, alternatively, that the Crown has proved beyond a reasonable doubt on all the evidence that the will of the accused was not overborne and that, accordingly the statement of the accused was voluntary despite the absence of a caution.

16Secondly, the Crown submits that the removal of the accused from the bedroom so as to better permit the police to administer first aid in circumstances where the accused clearly wished to remain to help the deceased does not constitute a detention, nor did the simple question by way of general inquiry require the police officer to have extended the accused his rights to counsel under s.10(a) and 10(b) of the Charter.

17In my view the actions of P.C. Parliament in removing the accused from the bedroom to facilitate the administration of first aid to the deceased, during which the voluntary utterance of the accused occurred, did not constitute a detention necessitating either a caution or the proffering of rights to counsel.

2. Detention

18Whether a detention occurred in the circumstances of this case requires a consideration of the meaning of “detention”. In R. v. Mann, 2004 SCC 52, [2004] S.C.J. No. 49 the Supreme Court stated the following at para. 19:

"Detention" has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to "detain" within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for 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.

(emphasis added)

19In R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 the Supreme Court elaborated on the criteria to be utilized in determining whether detention had occurred where there is no significant physical or psychological restraint. The Court stated the following at para. 44:

In summary, we conclude as follows:

1. Detention 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. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual 's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

(a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

20In this case, given the contents of the 911 call in which the accused stated he had shot the deceased in the head and given his presence with the deceased in the apartment upon the arrival of the police, there were objective grounds for the police to investigate the accused when they first encountered him at the scene.

21However, subjectively, I accept the evidence of P.C. Parliament that he considered the accused to only be a potential suspect and not a determined suspect. In that regard P.C. Parliament knew only that an “accidental” shooting had occurred on the basis of radio dispatch and was uncertain as to whether more than one person was involved. All officers at the scene testified that in their experience the information provided by radio dispatch often proved to be unreliable. Moreover, it was evident that the accused had placed the 911 call and appeared to be very solicitous in his efforts to provide assistance to the deceased. These aspects of the accused’s actions support P.C. Parliament’s conclusions as to whether the accused was a suspect.

22In my view, P.C. Parliament in placing his arm on the elbow of the accused in escorting him out of the bedroom did not physically detain the accused. I accept the evidence of P.C. Parliament that he was merely removing the accused from the bedroom, a process begun by P.C. Wells, so that P.C. Wells and P.C. Cirque could provide first aid to the deceased. I find that any physical contact was not in the nature of restraint, but rather benign in order to facilitate assistance to the deceased and that it would have been perceived by a reasonable person and indeed was perceived by the accused in that light. It is clear from the utterance of the accused that he did not wish to leave but rather wished to continue to provide first aid to the deceased.

23In my view, the question asked by P.C. Parliament: “What happened?” constituted a general inquiry and not a focused investigation.

24I accept the evidence of P.C. Parliament that the purpose of his question was to obtain further information as to any injuries that the deceased may have suffered in addition to the shot in the head. The question and answer were of extremely short duration, perhaps less than ten seconds. There is no allegation that the tone of the question was coercive in nature.

25Once the answer was given by the accused the only other question was whether there were other firearms present in the apartment. Clearly this question was permissible on the basis of officer safety and the accused does not raise any issue with respect to that question by the police and the information provided by the accused as to the location of other firearms.

26Moreover, the question asked is identical to the question asked by the 911 operator when the accused sought to obtain the assistance of the police. In those circumstances a reasonable person would have expected that the police, upon arrival at the scene, would confirm the information that had voluntarily been provided to the 911 operator.

27In this regard I adopt the words of Boswell J. in R. v. Johnson, 2017 ONSC 711 at paras. 77-78:

77 The narrative in this case began with the 911 call. Any reasonable person who calls 911 expects emergency service providers to respond to the call. Indeed, that is the very reason for the call - to summon emergency assistance. Moreover, any reasonable person who summons emergency responders will anticipate being asked the obvious question: "what happened?"

78 In my view, a reasonable person would anticipate that police would respond to a VSA call, along with paramedics. PC Stones was the first police officer on the scene. He quite naturally asked Mr. Johnson what happened. Mr. Johnson responded and provided more or less the same information that he had given during the 911 call.

(emphasis added)

28In my view, because of the exculpatory nature of the answer given by the accused in which the accidental nature of the shooting and the accused’s concern for the welfare of the deceased is emphasized, I find that the accused not only expected a general inquiry, but appeared to be prepared for one.

29It should be noted that while P.C. Parliament described the demeanour of the accused as somewhat shaken, all of the officers at the scene testified that the accused appeared to be unusually calm in the circumstances. There is no evidence of any particular characteristics of the accused that are relevant to his perception of the situation.

30I recognize that the inquiry is objective, even though the accused carries the burden of proof to demonstrate a Charter violation and that the subjective intentions of the police are not determinative. Nevertheless, I find that in all the circumstances P.C. Parliament did not exercise his authority to detain the accused. Although he questioned the accused about what happened, he did so in a general way and in a non-coercive manner that would not convey significant physical or psychological restraint to a reasonable person. The accused did not testify to the contrary.

[31] I therefore find that the accused was not detained when questioned by P.C. Parliament and that accordingly, there was no breach of the accused’s section 10 Charter rights. (See also: R. v. Dupuis 2014 ONSC 2751 (S.C.J.); R. v. Griecken, [2009] O.J. No. 5035 (S.C.J.).

3. Voluntariness

32In my view, the Crown has proved beyond a reasonable doubt that the utterance to P.C. Parliament was voluntary.

33The focus of the inquiry as to voluntariness is on the conduct of the police and the effect of that conduct on the applicant’s ability to exercise free will. In that regard the court will consider the protection of the accused’s rights, as well as the need to investigate and solve crimes in order to protect the public. Among the factors to consider include inducements by threats or promises, whether the circumstances in which the utterance was obtained were oppressive, whether the statement was made by a person with an operating mind and whether the police resorted to trickery. (See R. v . Oickle, [2000] 3 C.J. No. 38 (S.C.C.) at paras. 33, 47, 47-71; R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405 at para. 53).

34In the circumstances of this case the accused called 911 and asked for both an ambulance and the police. He informed the 911 operator that he had shot the deceased in the head and that he did so by accident. There is no issue that the accused’s 911 statements are voluntary. Although the police arrived on scene with their guns drawn because of concerns for officer safety, given the involvement of a firearm, the guns were immediately holstered. Once it was determined the accused was unarmed, the focus of all officers turned to providing medical assistance to the deceased and to obtaining information to facilitate that assistance. P.C. Parliament removed the accused from the bedroom in order to allow the other officers to better provide medical assistance and not, as I have found, to take control of him or to detain him. In my view, in the circumstances of this case there is no evidence of inducements, threats, promises, trickery, deceit or oppression in the manner in which the police dealt with the accused.

35Moreover, as I have held the question by P.C. Parliament “what happened?” did not constitute a focused, directed, probing inquiry, but rather constituted a general inquiry that was both justified in the circumstances and not unexpected, given that the accused requested the presence of the police. The answer of the accused confirmed the information voluntarily given to the 911 operator and went on to provide an exculpatory explanation of the accidental shooting and an expression of concern for the wellbeing of the deceased.

36Finally, while there is some evidence of the accused’s emotional upset in his conversation with the 911 operator and with P.C. Parliament, all of the officers testified that the accused was abnormally calm in the circumstances. Moreover, it is apparent that the accused was able to clearly explain what happened to the deceased and was able to understand and apply the instructions of the 911 operator with respect to placement of the gun, the opening of the apartment door and the rendering of first aid to the deceased as well as to provide an exculpatory explanation of what happened to P.C. Parliament.

37In all the circumstances I am satisfied that the accused had an operating mind.

38The accused submits that the absence of a caution rendered his utterance to the police involuntary.

39In my view, P.C. Parliament was under no obligation to caution the accused before asking him what happened. The involvement of the police in the incident had just begun and there was no clear indication that a crime had been committed. There was only an admission that the accused shot the deceased, but had done so accidentally. Also, in the circumstances P.C. Parliament considered the accused to be a potential suspect, but not a determined suspect. I agree with this conclusion. If a person is not a suspect or if the police do not know a crime has been committed there is no obligation to provide a caution. (See: R. v. Carroll, [2009] O.J. No. 3993 at para. 69-83) R. v. Singh, supra, at paras. 32-33).

40Moreover, even if the accused was a suspect, the absence of a caution does not render the utterance involuntary, although it can be an important factor. The critical issues with respect to voluntariness will invariably be whether the accused’s will was overborne. In R. v. Pearson, [2017] O.J. 253 the Court of Appeal stated the following at paras. 19-20:

19 Secondly, whether or not the appellant was a suspect, the applicable appellate authority makes clear that, although the absence of a caution is a factor to be considered on the voluntariness inquiry, it is not determinative: R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 31. This proposition applies regardless of whether the police do or ought to regard the person being questioned as a suspect. This court's decision in R. v. Bottineau, 2011 ONCA 194, 269 C.C.C. (3d) 227, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 455, is instructive. The appellant in Bottineau argued that the trial judge erred in ruling that his incriminating statements were voluntary because the police failed to provide him with a caution when he was "by any objective standard ...a 'suspect' at the time [the police] took his statement rather than a mere 'person of interest' as they professed to him he was": para. 85. This court declined to interfere with the trial judge's ruling. It wrote, at para. 88:

We do not think much turns, in these circumstances, on whether N.K. was a "suspect" or someone more benignly viewed by the police. 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. As the trial judge noted, "[h]ard and fast rules are incapable of accounting for the myriad circumstances that may vitiate voluntariness," and all the circumstances must be scrutinized carefully: see R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 47 and 71.

[Emphasis added.]

Thus, the voluntariness inquiry is a contextual one that considers all the relevant circumstances and eschews rigid and strict rules. See also R. v. Rowe-Boothe, 2016 ONCA 987, at paras. 16-21; and R. v. Pepping, 2016 ONCA 809, at para. 5.

20 In the present case, it was abundantly clear that, in his interactions with the police as of March 24, 2008, the appellant freely chose to speak to police. …

41Similarly, in the present case I am unable to find, based on the objective circumstances and in the absence of any evidence from the accused, that the will of the accused was overborne by the conduct of the police. Rather, I find, based on all the circumstances, that the accused in providing what he considered to be an exculpatory utterance freely chose to speak to the police and that accordingly his statement to the police was voluntary.

B. the statement to detective mahoney and detective gomes

1. Factual Background

42After his arrest and on the way to the police station and again after the booking procedure had been completed, Mr. Ranhotra inquired as to the condition of the deceased. P.C. Parliament advised him accurately that he did not know her status on the way to the station, although the deceased died shortly after. However, at the police station P.C. Parliament stated that he had no information as to her condition, even though at that point he had been informed of her passing. An investigator who he could not remember advised him not to disclose her death to the accused.

43P.C. Parliament called duty counsel at 5:41 and duty counsel retuned the call at 6:22 and spoke to the accused. P.C. Parliament did not inform duty counsel of the death of the deceased and reiterated to the accused that he had no information as to her status when the accused asked about the condition of the deceased after speaking to duty counsel. At 6:36 the accused was lodged in the cells. The accused did not ask for anything in the cells. To this point the accused had been arrested but not charged for reckless discharge of a firearm and aggravated assault.

44Detective Mahoney or Detective Gomes of the Homicide Squad commenced a videotaped interview of the accused at 5:04 am, approximately 13.5 hours after his arrest and concluded the interview at 8:40 a.m.

45In the first part of the interview, Detective Mahoney confirmed that the accused had received his right to counsel and understood that right and that he had received legal advice.

46Detective Mahoney asked the accused if he knew what he had been arrested for and he answered “aggravated assault and reckless firearm discharge”.

47At this point the accused was not advised that given the death of the deceased he was now effectively under arrest for the offence of manslaughter, but was led to believe, as he did not know of the death of the deceased that his arrest for reckless discharge of a firearm and aggravated assault was still operative. Detective Mahoney reviewed the primary and secondary caution with the accused and stated the following:

Our job is to investigate serious crime. We are both from the homicide squad OK? Unfortunately I have some bad news for you to tell you and that she has passed away today.

48At this point the accused appeared to cry for some time, although Detective Mahoney did not detect any tears. Once the accused regained his composure Detective Mahoney stated the following:

I know it's very shocking for you to hear but we have an obligation to tell what's going on? Ok? That may change how you want to deal with this whole situation. As I said to you earlier we investigate serious crimes. Ok? These serious crimes result in some serious penalties and that's our job to determine what happened here and it may put you in a situation with a lot of jeopardy. And because of that and the serious nature of this I want you to understand that you can have an opportunity to speak to a lawyer again before you talk to us about any of this.

(emphasis added)

49At this point Detective Mahoney offered the accused an opportunity to consult with duty counsel, which the accused accepted. Before leaving to contact duty counsel, Detective Mahoney stated the following:

We are investigators investigating the fact that you are responsible for this body’s death OK? You should know that and that way you can seek the advice about that. That there is a responsibility on your part. OK?

50Detective Mahoney testified that he did not in terms inform the accused that he was effectively under arrest for manslaughter and being investigated for murder, but advised duty counsel in recording a message that the accused was under arrest for aggravated assault and reckless discharge of a firearm and that the accused was responsible for the death of the deceased. Detective Mahoney was not sure if he used the word “manslaughter” in his message to duty counsel, although he may have done so.

51In her evidence, Detective Gomes confirmed that Detective Mahoney had used the word “manslaughter” in his message to duty counsel. In cross-examination she testified as follows, with respect to her understanding of the jeopardy facing the accused:

Q. Right but you know he used the word manslaughter when he, when he left the recording for the duty counsel.

A. Yes.

Q. All right. So I'm just curious to know why it had to be kept such a big secret from Mr. Ranhotra?

A. It wasn't kept a secret, he, it was made clear to him that he was responsible for her death.

Q. Yeah, but he knew he was responsible for her death because he had already said I accidentally shot her in the head. He'd already said that. He knew he was responsible for her death, right, but you didn't tell him that, yeah, you're responsible for her death but now we're investigating manslaughter. Nobody told him that, correct?

A. That's right.

Q. Right but the point is that you went in saying that there wasn't anything more than - even if it was an accident it’s still careless use of a firearm, right?

A. Yes.

Q. Right and the careless use of the firearm caused her death, right?

A. Yes.

Q. So isn't that manslaughter?

A. In the end, yes.

Q. Right, so when he walked into the room, you're already, you told the Crown that you hadn't turned your mind to it all but you’d already, you were already of the opinion that even if it's an accident it's a careless use of a firearm, which caused the death of the person, which equals manslaughter.

A. He confirmed that for me when I was speaking directly to him.

Q. Right but if he hadn't confirmed it, if he had just said nothing you still would have been left with the information that he had told the 9-1-1 Officer and Officer Parliament that it was an accident. You had that information, right?

A. Yes.

Q. So if he said, if you said to him was it an accident and he said, I can't answer that, that wouldn't have changed anything.

A. It may have, I would have had a different conversation at the end of it to say we're back at where we were ...

Q. And you had what you had at the beginning. A careless use of a firearm that, that caused the death of the deceased. That's what you had at the beginning, that's what you started with, right?

A. Yes.

Q. And just to be clear, I know you weren't the lead but nobody told him that he was in jeopardy of being charged with manslaughter prior to speaking with duty counsel the second time. Just told him that she’s died, it’s serious and you’re responsible for the death. That’s what was told him, correct?

A. Yes.

52After his second call to duty counsel the second part of the interview commenced at 5:50 a.m. Detective Mahoney reminded the accused that he had already told the police that he was responsible for shooting the deceased and that it was very serious because it involved a firearm. Approximately 15 minutes into this part of the interview the following exchange occurred, which I find makes it clear that the accused did not appreciate the jeopardy that he was in as a result of the death of the deceased, as he was under the mistaken apprehension that he was still in jeopardy for the mandatory minimum of five years for the offence of reckless discharge of a firearm and not specifically advised that with the death of the deceased his jeopardy was at least with respect to the offence of manslaughter. The exchange is as follows:

Mahoney: [...] I'm trying to understand what's going on between the two of you.

Ranhotra: My life is already over. Very well aware about that.

M: Your life is not over. You're sitting here talking to me about a situation.

R: Sir ---

M: --- the situation ---

R: --- I know I'm gonna (sic) go to a penitentiary.

M: Why you going to a penitentiary? What makes you say you're going to a penitentiary?

R: Cuz (sic) the first duty counsel said that, minimum five years. [My life is done.] I don't know ---

M: -- I don't need to hear that ---

R: --- so ---

M: --- the advice you're given but I wanna (sic) understand why you think you're going to a penitentiary.

R: Cuz (sic) that's what the first duty counsel said.

M: No, you said to me you're going to a penitentiary. Why is that?

R: Because he that's what he told me.

(my emphasis)

53It appears clear that at this point the accused is under the mistaken apprehension that he is still in jeopardy for the offence of reckless discharge of a firearm and is therefore unaware that his jeopardy has changed with the death of the deceased, nor was he specifically advised of that change by Detective Mahoney. I agree with counsel for the accused that it is clear that the accused had not read between the lines and understood he was in jeopardy of at least the offence of manslaughter when Detective Mahoney obliquely advised him that his jeopardy may have changed with the death of the deceased. Once again Detective Mahoney had a positive duty to specifically advise the accused of his increased jeopardy for the offence of manslaughter and to give him the opportunity to consult with counsel in that regard.

54Near the end of the interview the following exchange occurred between Detective Gomes and the accused:

Gomes: And you're gonna (sic) be charged with the death of your girlfriend.

Ranhotra: I understand.

G: We made it clear for you at the beginning, clear with you from the beginning that she had died and that you were responsible for her death, right?

R: I understand.

G: Do you understand?

R: Yes.

G: And you understood that from the beginning, is that right?

R: Yes.

55I agree with defence counsel that in the absence of a specific statement by the detectives that the accused’s jeopardy had changed from the offences of reckless discharge of a firearm and aggravated assault for which he was arrested to that of at least manslaughter, the accused’s exchange with Detective Gomes cannot be taken as confirming that the accused understood that his jeopardy had changed from the offences for which he had been arrested.

56The second part of the interview lasted almost three hours. On 218 occasions the accused refused to answer questions citing the advice of counsel. The refusals were predominantly with respect to how the “accident” had occurred, but he also refused to answer some questions about his relationship with the deceased. Although the accused was resilient in refusing to answer questions about the shooting, his demeanour, particularly during the refusals, was emotional.

57However, the accused also answered many questions, and gave exculpatory answers, with respect to his relationship with the deceased, whom he professed to love and wanted to marry. It is these answers in the statement which the Crown seeks to have admitted, as there is evidence in the deceased’s diaries and from Ms. Peldon that the accused and the deceased were on the verge of breaking up.

58Shortly after the interview concluded, the accused was formally charged with manslaughter.

2. Position of Counsel

59The accused submits that, based on the facts which I have outlined, the police deliberately misinformed the accused as to his jeopardy prior to his first call with duty counsel. He had been arrested for discharge firearm recklessly and aggravated assault, but a superior officer had decided that he should not be told the deceased had already died prior to the first phone call.

60The accused further submits that Detective Mahoney and Detective Gomes also misinformed the accused as to his jeopardy prior to his second call with duty counsel which occurred immediately before the videotaped statement was made. The accused was not aware of the extent of his jeopardy at this point because at the same time that the police finally told the accused that the deceased had died, they nevertheless reaffirmed that the accused was still under arrest for discharge firearm recklessly and aggravated assault, the same offences for which the accused had been arrested at the scene. The police deliberately or negligently did not tell the accused that he was effectively under arrest for the significantly more serious offence of manslaughter at that point and also under investigation for murder. It is clear from the videotape itself that even after the second call to counsel the accused considered that he was still in jeopardy on the less serious charge of discharging a firearm recklessly and again was not informed of his increased jeopardy.

61I agree with these submissions.

3. Failure to advise of increased jeopardy

62The Crown submits that while Detective Mahoney did not specifically advise the accused of his jeopardy for the more serious offence of manslaughter, the accused could have inferred that his jeopardy had increased from the remarks that Detective Mahoney had directed at the accused.

63I accept that the authorities do not require a specific formula, especially in cases involving persons familiar with the criminal justice system (See R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869 at page 15). However, it is clear in this case from the statement of the accused on videotape that the vague references to potential increase in jeopardy made by Detective Mahoney coupled Detective Mahoney’s reference to the accused’s continuing arrest for the lesser offences of reckless discharge of firearm and aggravated assault did not, nor reasonably could not, inform the accused, unfamiliar with the criminal justice system, of his actual jeopardy for manslaughter.

64In R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138 the Supreme Court of Canada has made it clear that the accused must be advised of his change in jeopardy in order to understand the charge that he faces and to exercise his rights to counsel in respect of that charge, as guaranteed by section 10(a) and 10(b) of the Charter. At pages 11-12 the Court stated the following:

The Crown argued with some force that the appellant fully exercised her rights when she had a brief conversation with a lawyer, Mr. Digby, immediately upon her arrival at the police station. It was the Crown's view that the information subsequently given to the accused that the charge against her would be changed from attempted murder to first degree murder was immaterial to the exercise of the appellant's rights. The Crown argued that there was only one arrest or detention and that arrest or detention was in respect of one occurrence or transaction. Accordingly, the appellant's rights were respected when she was allowed to contact her lawyer upon arrival at the station.

This Court has on numerous occasions stated that a purposive analysis must be undertaken when interpreting Charter provisions: see Hunter v. Southam Inc.,1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, and R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295. The Court held in Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, that s. 10(b) was concerned with fostering the principles of adjudicative fairness. Quoting from p.394:

This constitutional provision is clearly unconcerned with the probative value of any evidence obtained by the police but rather, in the words of Le Dain J. in Therens, supra, at pp. 641-42, its aim is "to ensure that in certain situations a person is made aware of the right to counsel" where he or she is detained by the police in a situation which may give rise to a "significant legal consequence".

Moreover, s. 10(b) should not be read in isolation. Its ambit must be considered in light of s. 10(a). Section 10(a) requires the police to advise an individual who is arrested or detained of the reasons for such arrest or detention. The rights accruing to a person under s. 10(b) arise because he or she has been arrested or detained for a particular reason. An individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy.

When the appellant contacted Mr. Digby she had been told that she was under arrest for attempted murder, or, depending upon which evidence one accepts, for a "stabbing". This is significantly different from a charge of first degree murder. First, while the Crown must prove that the accused intended to kill the victim in a charge of attempted murder (see R. v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225), such a strict mens rea requirement is negatived in some instances in ss. 212 and 213 of the Criminal Code, R.S.C. 1970, c. C-34, the sections which set forth the elements necessary to sustain a murder conviction. Second, in the case of a "stabbing" or an attempted murder, the victim may be able to testify to either inculpate or exculpate the accused. Obviously, this is not possible in the case of a murder charge. Third, and perhaps most importantly, the psychological impact of a first degree murder charge on an accused will be much more severe than in the case of a charge for attempted murder or "stabbing". There is, after all, no more serious offence known to our law than first degree murder.

The Crown argued that, despite the change in the charge, the preliminary legal advice which the appellant received might well have been unchanged. This may be so. On the other hand, given the differences in the charges as discussed above, to conclude that the advice would inevitably have been the same is sheer conjecture. In my opinion, it is improper for a court to speculate about the type of legal advice which would have been given had the accused actually succeeded in contacting counsel after the charge was changed. If the Crown's argument on this point were sound, each time an accused was asked to blow into a breathalyzer there would be no need to advise the accused of his s. 10(b) rights since it might be assumed that counsel would advise the accused that he should submit to the breathalyzer on the basis that failure to do so constitutes a criminal offence. Such reasoning runs directly afoul of this Court's judgments in R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, and Trask v. The Queen, 1985 CanLII 30 (SCC), [1985] 1 S.C.R. 655. It also totally defeats the purpose of s. 10(b).

I would, therefore, reject the Crown's first line of argument.

(See also R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869)

65In both Black, supra and Evans, supra, the Supreme Court declined to apply s.24(2) of the Charter as it was held that to admit the impugned statements would affect trial fairness so as to bring the administration of justice into disrepute.

66In R. v. Grant, [2000] 2 S.C.R. 353 the Supreme Court formulated the following approach under section 24(2) of the Charter to the admissibility of evidence obtained in breach of the Charter. At para. 71 the court stated:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

67The court emphasized at para. 92 that with respect to statements: “The three lines of inquiry described above suggest the presumptive general, although not automatic, exclusion of statements obtained in breach of the Charter.”

68The court outlined the focus of the first line of the inquiry that must be made with respect to statements obtained in breach of the Charter at paras. 93-94 as follows:

93The first inquiry focusses on whether admission of the evidence would harm the repute of justice by associating the courts with illegal police conduct. Police conduct in obtaining statements has long been strongly constrained: The preservation of public confidence in the justice system requires that the police adhere to the Charter in obtaining statements from a detained accused.

94The negative impact on the justice system of admitting evidence obtained through police misconduct varies with the seriousness of the violation. The impression that courts condone serious police misconduct is more harmful to the repute of the justice system than the acceptance of minor or inadvertent slips.

(emphasis added)

69In assessing the seriousness of the police misconduct in not informing him of his increased jeopardy for manslaughter prior to taking the videotape statement I agree with the accused’s position that the police did not specify his increased jeopardy for manslaughter as part of a deliberate and calculated strategy of how to deal with the accused in order that he would keep his guard down and be more willing to talk. In that regard the fact of the deceased’s death was deliberately withheld from the accused until immediately before the taking of the statement in order to increase his vulnerability. Also, immediately before the taking of the statement his arrest for the less serious charges was reaffirmed. Rather than simply specifying his increased liability for manslaughter the police engaged in vague references that clearly the accused did not appreciate, as it is clear that he believed that he was till liable for the less serious offences, as his comments in the statement demonstrate. Finally, the “soft” interview room, the polite demeanour of the officers and the apparent willingness of the detectives to view the incident as an “accident” formed part of the strategy.

70In my view, the deliberate manipulation of the accused by not specifying his increased jeopardy is egregious. The police conduct cannot be characterized as a minor or inadvertent slip. In my view, the first line of inquiry favours exclusion, especially in light of the heightened concern with proper police conduct in obtaining statements.

71At paras. 95 and 96 the Supreme Court discussed the second line of inquiry as follows:

95The second inquiry considers the extent to which the breach actually undermined the interests protected by the right infringed. Again, the potential to harm the repute of the justice system varies with the seriousness of the impingement on the individual's protected interests. As noted, the right violated by unlawfully obtained statements is often the right to counsel under s. 10(b): The failure to advise of the right to counsel undermines the detainee's right to make a meaningful and informed choice whether to speak, the related right to silence, and most fundamentally, the protection against testimonial self-incrimination. These rights protect the invidual’s interest in liberty and autonomy. Violation of these fundamental rights tends to militate in favour of excluding the statement.

96This said, particular circumstances may attenuate the impact of a Charter breach on the protected interests of the accused from whom a statement is obtained in breach of the Charter. For instance, if an individual is clearly informed of his or her choice to speak to the police, but compliance with s.10(b) was technically defective at either the informational or implementational stage, the impact on the liberty and autonomy interests of the accused in making an informed choice may be reduced. Likewise, when a statement is made spontaneously following a Charter breach, or in the exceptional circumstances where it can confidently be said that the statement in question would have been made notwithstanding the Charter breach (see R. v. Harper, 1994 CanLII 68 (SCC), [1994] 3 S.C.R. 343), the impact of the breach on the accused's protected interest in informed choice may be less. Absent such circumstances, the analysis under this line of inquiry supports the general exclusion of statements taken in breach of the Charter.

(emphasis added)

72With respect to the impact of the breach on the accused’s protected rights, I am of the view that this factor also favours exclusion. In the course of his statement the accused refused to answer any questions concerning the shooting in excess of 200 times, citing the advice of counsel. He also refused to answer some questions pertaining to his relationship with the deceased, acting on the advice of counsel. However, he chose to answer a number of other questions pertaining to his relationship with the deceased, which the Crown seeks to demonstrate were either exaggerated or untrue and thereby to use the statement as inculpatory evidence. His lies to the police would have a serious impact on the accused’s rights against self-incrimination.

73In my view, had he been properly advised of his increased jeopardy for manslaughter and murder, he may not have chosen to reveal anything about his relationship or other background information. In my view, it cannot be said “confidently” that he would not have said anything different or that he would have been differently advised by counsel if he had known the true state of his jeopardy. This factor also favours exclusion.

74With respect to the third line of inquiry the court stated the following at para. 97:

97The third inquiry focusses on the public interest in having the case tried fairly on its merits. This may lead to consideration of the reliability of the evidence. Just as involuntary confessions are suspect on grounds of reliability, so may, on occasion, be statements taken in contravention of the Charter. Detained by the police and without a lawyer, a suspect may make statements that are based more on a misconceived idea of how to get out of his or her predicament than on the truth. This danger, where present, undercuts the argument that the illegally obtained statement is necessary for a trial of the merits.

75I agree with the accused’s position that this factor is neutral on the issue of exclusion. On the one hand there is an obvious public interest that a serious charge be presented on its merits. The exclusion of the evidence will not gut the Crown’s case, as the accused refused to answer questions pertaining to the shooting. On the other hand it is not unreasonable to conclude that had he been properly advised of his increased jeopardy for manslaughter and possibility for murder he may not have chosen to answer any questions pertaining to his relationship with the deceased, thereby incriminating himself.

76In determining how to strike the balance I refer to the observations of the Supreme Court at para. 98:

98In summary, the heightened concern with proper police conduct in obtaining statements from suspects and the centrality of the protected interests affected will in most cases favour exclusion of statements taken in breach of the Charter, while the third factor, obtaining a decision on the merits, may be attenuated by lack of reliability. This, together with the common law's historic tendency to treat statements of the accused differently from other evidence, explains why such statements tend to be excluded under s. 24(2).

77In my view, balancing the relevant factors under s.24(2) of the Charter favours exclusion in this case and accordingly the videotaped statement is ruled inadmissible.