R. v. Raios, 2018 ONSC 6867

COURT FILE NO.: CR-16-10000748-0000

DATE: 20181129

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

APOSTOLOS PAUL RAIOS

Defendant/Applicant

Michael Callaghan, for the Crown/Respondent

Boris Bytensky, for the Defendant/Applicant

HEARD: November 13 & 14, 2018

REASONS FOR JUDGMENT

faieta j.

INTRODUCTION

1In the early morning of December 26, 2013, the Defendant is alleged to have stabbed another man at a nightclub and, as a consequence, he is charged with three offences: (1) assault with a weapon contrary to s. 267 of the Criminal Code, R.S.C. 1985, c. C-46; (2) aggravated assault contrary to s. 268 of the Criminal Code; and (3) possession of a weapon for the purpose of committing an indictable offence contrary to s. 88(1) of the Criminal Code.

2The Defendant was formally arrested at 4:40 a.m. on December 26, 2013 and transported by police to 52 Division of the Toronto Police Service (“TPS”). By 9:45 a.m., the investigating police officer had decided that he would charge the Defendant with aggravated assault. Bail court sittings at the Old City Hall court commenced at 10 a.m. and closed for the day at 12:43 p.m. At 1:01 p.m., the investigating police officer commenced interviewing the Defendant at the police station. The Defendant admitted that he caused the victim’s injuries using a piece of glass and provided an explanation for his conduct. After completing this interview, the investigating police officer prepared the paperwork for the Defendant’s bail hearing. The investigating officer supported the release of the Defendant with conditions. The Defendant was not brought before a justice to determine the issue of bail until 10:59 a.m. on December 27, 2013. On consent, the Defendant was released with conditions.

3At the commencement of trial, the Defendant brought an application to exclude the statement that he gave to police while detained on the basis that the TPS failed to comply with the mandatory requirements of s. 503(1) of the Criminal Code. Pursuant to this section, the police are required to bring a person who has been arrested before a justice, where a justice is available within a period of 24 hours after the arrest, without unreasonable delay and in any event within that 24 hour period of that person’s arrest. Since the Defendant did not appear before a justice within 24 hours of his arrest although one was available, he asserts that his statement to police was obtained in a manner that infringed ss. 7, 9 and 11(e) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11, and that it should be excluded as evidence pursuant to s. 24(2).

4The main point in dispute at the hearing of this application was whether the exclusion of the Defendant’s confession was the appropriate remedy for breach of the Defendant’s s. 9 rights. The Crown submitted that the Defendant’s confession should not be excluded and that the appropriate remedy is an enhanced calculation of the Defendant’s pre-trial credit at sentencing.

5For the reasons described below, I have granted the Defendant’s application.

BACKGROUND

6The application proceeded on the basis of the following evidence:

(1) The oral evidence of Detective Constable (“D.C.”) Jason Shankaran;

(2) The affidavit evidence of Adam Goodman and Anna Toutchinsky; and

(3) The statement of D.C. Neil Madill of the TPS that was admitted on consent of the parties.

7The following is a chronology of the events that are relevant to this application which is based largely on the evidence of D.C. Shankaran:

Date and Time

Events

December 26, 2013, 3:11 a.m.

Police notified of the stabbing incident.

December 26, 2013, between 3:11 a.m. and 4:05 a.m.

Police officers arrive at the nightclub and interview various witnesses. Police learn that two persons may be responsible: the Defendant and NS, an off-duty police officer employed by the York Regional Police.

December 26, 2013, 4:04 a.m.

Defendant handcuffed by Police Constable (“P.C.”) Brookes and placed in a police scout car for investigation detention.

December 26, 2013, 4:20 a.m.

NS arrested as a party to the assault.

December 26, 2013, 4:40 a.m.

Defendant formally arrested for aggravated assault.

December 26, 2013, 5:32 a.m.

Defendant is booked at 52 Division. D.C. Neil Madill states that he was the booking Sergeant when the Defendant was paraded before him by P.C. Brookes and P.C. Lamanna. He completed the booking process within several minutes, after which he had no further contact with the Defendant. The Defendant was then investigated by the day shift Investigation Bureau (D.C. Shankaran).

December 26, 2013, 6:00 a.m.

D.C. Shankaran, who later interviews the Defendant and becomes the case manager, reports for duty and is briefed on the status of the investigation.

December 26, 2013, between 6:40 a.m. and 7:28 a.m.

D.C. Shankaran conducts a videotaped interview with a civilian witnesss, Alexander Andrews, who confirmed that NS was not a party to the stabbing.

December 26, 2013, 8:04 a.m.

D.C. Shankaran reviews the nightclub’s CCTV videos. After viewing the videos, he concluded that the Defendant was the “right person” and that NS was not involved in the stabbing nor did he assist the Defendant afterwards. D.C. Shankaran knew after watching the videos that he would proceed with charges against the Defendant but not against NS.

December 26, 2013, 9:45 a.m.

D.C. Shankaran returns to 52 Division. At that point, he decided to charge the Defendant with aggravated assault. He felt that the CCTV cleared NS of aggravated assault but he still wanted to take a statement from NS.

December 26, 2013, 10:00 a.m.

Two bail courts at Old City Hall commence their sittings.

December 26, 2013, 10:23 a.m.

D.C. Shankaran commences to interview NS as a witness to the events that happened at the club.

December 26, 2013, 10:26 a.m.

NS was advised that he would be released with no charges relating to the assault. NS was told that he would be providing a statement as a witness.

December 26, 2013, 11:03 a.m.

Interview of NS is completed. D.C. Shankaran notes that “at this point, there are no RPG [reasonable and probable grounds] to believe that [NS] had any involvement in the stabbing”.

December 26, 2013, 12:41 p.m.

Courtroom 111 at Old City Hall completes its bail court sittings for the day.

December 26, 2013, 12:43 p.m.

Courtroom 101 at Old City Hall completes its bail court sittings for the day.

December 26, 2013, 1:01 p.m.

D.C. Shankaran commences to interview the Defendant. For the first 30 minutes of the interview, the Defendant denies any wrongdoing. But after being told that the police had clear video evidence of him committing the offence (which was not true), the Defendant admitted that he caused the victim’s injuries, explained why he did so, and apologized to the victim.

December 26, 2013, 1:50 p.m.

Interview of the Defendant is completed. The Defendant is kept in a holding room on the 2^nd^ floor of 52 Division’s Criminal Investigation Bureau until he is brought downstairs to the cells at about 3:40 p.m. by D.C. Shankaran.

December 26, 2013, 3:40 p.m.

Defendant is brought before a booking officer in the booking hall of 52 Division outside the cell area. Before being transferred to Cell #8 within 52 Division, the booking officer, who is the officer in charge of prisoners, asks D.C. Shankaran whether the Defendant is to await a show cause hearing the following day at Old City Hall, as opposed to being released from the police station. D.C. Shankaran advises that the Defendant is to be brought for a show cause hearing.

December 27, 2013, 10:59 a.m.

Defendant first appears before a justice and consent release proceedings begin.

8The affidavit evidence of Adam Goodman, a criminal defence lawyer, is that he is familiar with the practice of the bail courts at Old City Hall. It is his evidence that there are two bail courts that operate at Old City Hall on weekends and holidays. They are the only two courts in the City of Toronto that cover bail matters. The practice of these two courts is that they will not hear any requests for bail unless the arrested person has arrived at Old City Hall by 12:30 p.m. Mr. Goodman states that this practice is well known among police officers that he has dealt with regarding any weekend or statutory holiday bail issues. Mr. Goodman has observed justices refusing to hear any bail requests where the arrested person had not arrived by 12:30 p.m. with the result that the arrested person would be returned to bail court on the following day. On the other hand, Mr. Goodman has also observed on several occasions that a bail application was heard when the arrested person arrived at Old City Hall after 12:30 p.m.

9The statement of D.C. Madill includes the following:

When Mr. Raios was brought to 52 Division I was the booking Sergeant working in a uniform capacity. Constable Brookes and Constable Lamanna paraded Mr. Raios before me. After several minutes I completed the booking process. Mr. Raios was then investigated by the day shift Investigation Bureau. I had no further contact with Mr. Raios.

I am aware that a prisoner is required to appear before a Justice within 24 hours; however, there may be extenuating circumstances in which a prisoner does not meet this requirement.

10D.C. Shankaran testified that he prepared the paperwork for the Defendant’s release following his interview with the Defendant. He acknowledged that prior to interviewing the Defendant, he had not turned his mind to ensuring that the Defendant was released from police custody within the prescribed period. He stated:

… I did not turn my mind to doing the addition to show that he would be over the 24 hour period once we lodged him into the cells. I did not know when the courts were down at Old City Hall that day. That wasn’t in my mind. But, myself, I did not do the calculation in my own head that he would be over that 24 hour period.

11When asked whether there was anyone else within 52 Division that was responsible for ensuring that the Defendant was brought before a justice within the prescribed period, he gave the following answer:

According to the Toronto Police Service procedures, ultimately that responsibility rests with the Officer in Charge. But, the way a police station works I am a supervisor as well. I am as much as in charge of the people in our custody as the Officer in Charge, any supervisor at a police station would be. So, it is incumbent on me if I knew that he was going to be held over the 24 hour period, it would be incumbent on me to let the Officer in Charge know that this is going to take place. So, although there is a cluster of people that is ultimately in charge of the care of prisoners at the police station, ultimately it was my case, it was not my arrest per se, but I was handling the paper work for it, I was in charge of the accused as he was upstairs in the CIB. It was my duty to inform the officer in charge that he would have been overstayed at that point. …

12D.C. Shankaran stated that he was unaware, at the time that he prepared the paperwork for the Defendant’s transfer to bail court, that the Defendant would have been detained by police for more than 24 hours. He stated:

That was my grave error in all this. … If I had known that he would be over the 24 hour period I would have released him on a Form 10/11. That would have been the only way at that point, if I was aware of it, to remedy the situation. The reason why I didn’t think of releasing him on a Form 10/11, I was thinking in kind of a traditional detective way that this is a very serious offence, someone had received a serious injury, the nature of the injury that I got from the confession was that he had picked up a piece of glass and there was a period of time before the events, the offence had been committed, and I knew that alcohol had been involved. From my perspective I wanted Mr Raios to have a surety to ensure he abided by his conditions especially the alcohol component of it. Knowing what I know now I would have pushed for him to promise to those conditions in front of the officer in charge.

13The statements of D.C. Shankaran and D.C. Madill reflect a misunderstanding of the police’s right to detain an arrested person. In this case, a justice was available within the 24 hour period following the Defendant’s arrest and, accordingly, s. 503(1)(a) of the Criminal Code is applicable. It requires that a person arrested by the police be brought before a justice “without unreasonable delay and in any event within [24 hours]”. Both D.C. Shankaran and D.C. Madill appear to be under the misapprehension that there is an unqualified right to detain an arrested person for 24 hours. As is discussed below, no such right exists. In his evidence, D.C. Shankaran indicated that no formal training was provided by the TPS regarding the obligation to bring an arrested person to bail court although it was “something you learned”. Although D.C. Madill raises the issue of “extenuating circumstances”, neither D.C. Madill nor anyone else submitted that such circumstances existed in this case. Finally, it appears that D.C. Shankaran assumed sole responsibility for ensuring that the Defendant was brought to bail court in accordance with s. 503 of the Criminal Code and that there were no “checks and balances” to ensure that any slips in ensuring compliance were discovered.

ISSUE

14Should the Defendant’s statement to the police be excluded pursuant to s. 24(2) of the Charter?

ANALYSIS

15In asking that his statement to the police be excluded from the evidence at trial, the Defendant relies upon the following provisions of the Charter:

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

8. Everyone has the right not to be arbitrarily detained or imprisoned.

9. (e) Any person charged with an offence has the right not to be denied reasonable bail without just cause.

10. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

16To obtain an order excluding evidence, the Defendant must prove, on a balance of probabilities, that:

(1) Such evidence was obtained in a manner that infringed a Charter right; and

(2) The admission of such evidence would bring the administration of justice into disrepute: R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 36.

ISSUE #1: WAS THE DEFENDANT’S CHARTER RIGHT(S) INFRINGED?

17It is axiomatic that, in Canada, a person’s liberty cannot be taken away except in accordance with the law.

18Subsection 503(1) of the Criminal Code provides that a peace officer who arrests a person shall cause the person to be detained in custody and, in accordance with the following provisions, to be taken before a justice to be dealt with according to law:

(a) where a justice is available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period, and

(b) where a justice is not available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice as soon as possible,

unless, at any time before the expiration of the time prescribed in paragraph (a) or (b) for taking the person before a justice,

(c) the peace officer or officer in charge releases the person under any other provision of this Part, or

(d) the peace officer or officer in charge is satisfied that the person should be released from custody, whether unconditionally under subsection (4) or otherwise conditionally or unconditionally, and so releases him. [Emphasis added.]

19Section 503 came into force in 1955 as s. 438(2). See Criminal Code, 1953-54, c. 51. In its original form, it required that an arrested person be brought before a justice within 24 hours if a justice was available, or as soon as possible if a justice was not available during that period. This provision has been amended several times. The term “unreasonable delay” was added by the Bail Reform Act, R.S.C. 1970, c.2 (2^nd^ Supp.) which came into force in 1972. This amendment codified the common law obligation that an arrested person must be brought before a justice within a reasonable time: Wright v. Court (1825), 4 B. & C. 596; 4 L.J. K.B. (O.S.) 17. This amendment also followed a recommendation made in a study by Professor Martin L. Friedland that the 24 hour requirement in the Criminal Code be modified by adding the phrase “without unreasonable delay” in order to reflect the common law as he had observed that “… some police officers believed that the 24 hour period mentioned in the Code permits them to hold a person for up to 24 hours”. See Martin L. Friedland, Detention Before Trial: A Study of Criminal Cases Tried in the Toronto Magistrates’ Court (Toronto: University of Toronto Press, 1965), at pp. 63-64.

20Under s. 503, a police officer must bring a person that has been arrested before a justice “without unreasonably delay” and, in any event, within 24 hours of that person’s arrest if a justice is available. In R. v. Brown, [2007] O.J. No. 2830, aff’d 2009 ONCA 633, 247 C.C.C. (3d) 11, at para. 9, Justice Nordheimer, as he then was, explained that the purpose of this provision is to “… ensure that a person who is arrested has the ability, at the earliest possible opportunity, to have a judicial officer review their detention and determine if the continuation of that detention is warranted”. Also see R. v. Vassell, 2015 ABCA 409, 29 Alta. L.R. (6th) 1, at paras. 69 and 70.

21While what amounts to “unreasonable delay” depends on the circumstances, it “… would appear to be unreasonable to hold a person after the routine paper work and investigation have been completed if there is a magistrate’s court sitting at that time”: R. v. Koszulap (1974), 1974 CanLII 1461 (ON CA), 20 C.C.C. (2d) 193 (Ont. C.A.), at p. 202; and R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 256-258. While a delay in bringing an arrested person to bail court is reasonable if the delay serves to ensure that the police have arrested the “right person”, the delay becomes unreasonable if it merely serves to gather additional evidence to support the case against the accused person: R. v. C.K., 2005 ONCJ 462, 36 C.R. (6th) 153, at paras. 42-44.

22In my view, a breach of s. 503 of the Criminal Code is also a breach of s. 9 of the Charter: a breach of s. 503 results in an unlawful detention of an accused and a “detention not authorized by law is arbitrary and violates s. 9.”: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 54; and R. v. E.W., 2002 NFCA 49, 216 Nfld. & P.E.I.R. 89, at para. 34. Having come to that conclusion, I find it unnecessary to consider whether ss. 7 and 11(e) of the Charter have also been breached in this case.

23The TPS knew that the accused person was the “right person” at 9:45 a.m. on December 26, 2013, if not earlier at 8:04 a.m., once D.C. Shankaran had decided that he would charge the Defendant with aggravated assault given the evidence before him. The Crown did not pursue the argument that it had advanced in its Factum that the failure of the TPS to deliver the Defendant to bail court on December 26, 2013 was the result of the bail courts closing “shockingly early” at 12:43 p.m. that day, given that neither D.C. Shankaran nor anyone else in a position of authority at the TPS had even turned their mind to ensuring that the Defendant was brought to bail court without unreasonable delay in accordance with s. 503 of the Criminal Code.

24The Crown concedes that both s. 503 of the Criminal Code as well as s. 9 of the Charter were breached in this case. I agree.

ISSUE #2: WAS THE STATEMENT FROM THE DEFENDANT “OBTAINED IN A MANNER” THAT INFRINGED A CHARTER RIGHT?

25In order to exclude evidence, the Defendant must show that the evidence was “obtained in a manner” that infringed a Charter right. In R. v. Pino, at para. 72, the Ontario Court of Appeal provided the following guidance:

Based on the case law, the following considerations should guide a court's approach to the "obtained in a manner" requirement in s. 24(2):

• The approach should be generous, consistent with the purpose of s. 24(2)

• The court should consider the entire "chain of events" between the accused and the police

• The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct

• The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.

• But the connection cannot be either too tenuous or too remote.

26By 9:45 a.m. on December 26, 2013, there was no further reason to hold the Defendant as, by that time, D.C. Shankaran had investigated the incident and had decided to charge the Defendant.

27Given that bail courts in Toronto closed at 12:43 p.m. on December 26, 2013, and given that the TPS chose to commence a 49 minute-long interview with the Defendant at 1:01 p.m. on that same day, I have no difficulty finding that the Defendant would not have provided a confession to the police had the TPS complied with its duty to deliver the Defendant to a justice under s. 503 of the Criminal Code.

28I find that the statement provided to the police by the Defendant was obtained in a manner that infringed s. 9 of the Charter. The statement was obtained while the Defendant was illegally detained by the police because by 9:45 a.m., the TPS had decided that it had sufficient evidence to charge the Defendant with aggravated assault. It should have been able to prepare the related necessary paperwork and deliver the Defendant a short distance to Old City Hall well-before the bail courts closed at 12:43 p.m. that day.

ISSUE #3: WOULD THE ADMISSION OF THE DEFENDANT’S STATEMENT BRING THE ADMINISTRATION OF JUSTICE INTO DISREPUTE?

29In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, the Supreme Court of Canada 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.

30In R. v. Rover, 2018 ONCA 745, at para. 38, the Ontario Court of Appeal explained that the “… first two factors, taken in combination, represent the case for exclusion … [and the] third provides the counterbalance favouring admission of the evidence.”

Seriousness of the Charter-infringing state conduct

31In Grant, at para. 72, the Supreme Court of Canada stated that the “… more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.”

32The Crown concedes that the police conduct that resulted in the breach of s. 9 of the Charter was serious. The confession obtained from the Defendant was the result of a complete disregard of s. 503 of the Criminal Code and s. 9 of the Charter. Given that the requirement to bring an accused before a justice “without unreasonable delay” was added about 45 years ago to the Criminal Code, I would have expected that, by this time, the TPS would have an effective system in place to ensure compliance with s. 503 of the Criminal Code, and in particular to ensure that this fundamental safeguard is not overlooked simply as a result of one police officer’s inadvertence. It is incomprehensible that none of the members of the TPS who interacted with the Defendant, or who were responsible for his well-being while detained, turned their mind to ensuring that the Defendant was brought before a justice for the purposes of a bail hearing, or released by police with or without conditions, in accordance with s. 503 of the Criminal Code.

33The Crown did not dispute the Defendant’s assertion that the breach of s. 503 of the Criminal Code is a “systemic” problem. Further, in R. v. Mendez, 2014 ONSC 498, 306 C.C.C. (3d) 464, at para. 114, Justice Forestell found, on the evidence before her, that there had been a “systemic failure” within the TPS to comply with s. 503 of the Criminal Code for about a decade. It is not surprising that some have suggested that, despite s. 503 of the Criminal Code and s. 9 of the Charter, there is a culture of complacency with processing new arrests that calls for greater use of a stay of proceedings as a remedy in order to prevent such breaches: Gavin Wolch and Meryl Friedland, “The Culture of Complacency in Arrest Processing”, Defence Magazine, 38:4 (December 2017).

34In conclusion, I find the Charter-infringing state conduct to be serious. The flagrant, even if inadvertent, disregard for s. 503 of the Criminal Code and s. 9 of the Charter undermines public confidence in the rule of law, as well as in the TPS, and supports the exclusion of the statement obtained from the Defendant. To avoid undermining public confidence in the rule of law in the future, two steps should be taken by the TPS to minimize the risk of future breaches of s. 503 of the Criminal Code. First, whatever system(s), if any, the TPS has in place to ensure that the liberty of an accused person is not violated as a result of its disregard for s. 503 of the Criminal Code needs to be reviewed and improved to minimize as much as practicable the risk of future breaches of s. 503 of the Criminal Code. Second, given that the evidence of the two police officers adduced in this case shows that they operate under the misapprehension that they have an unqualified right to hold an arrested person for 24 hours, the TPS should provide training to its police officers to ensure that they understand that: (1) the police do not have the unqualified right to keep an arrested person in custody for the purposes of investigation for a period of 24 hours before taking such person to bail court: Koszulap, at para. 26; (2) the police are obliged to bring an arrested person to bail court, if it is open, without unreasonable delay which will typically mean once the police are satisfied that they have arrested the “right person” and have completed the related necessary paper work; and (3) in any event, the police must bring an arrested person to bail court, if open, within 24 hours of that person’s arrest.

Impact on the Charter-Protected Interests of the Accused

35In Grant, at para. 72, the Supreme Court of Canada stated that 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.”

36The detention of the Defendant contrary to s. 9 of the Charter resulted in his loss of liberty as he unnecessarily spent an evening in police custody. The Defendant’s loss of liberty was about 22 hours when calculated from the time that the bail courts closed on December 26, 2013 until the time that he appeared in bail court on the following day. On December 27, 2013, the Defendant was released on bail by a justice on conditions that the TPS had sought. Neither the Crown nor D.C. Shankaran explained why the police did not release the Defendant under ss. 503(1)(c) or 503(1)(d) of the Criminal Code sooner given the TPS was content with the Defendant’s release on conditions.

37I find that the impact of the breach of the Defendant’s right under s. 9 of the Charter was significant. This supports the exclusion of the Defendant’s statement.

Society’s Interest in an Adjudication on the Merits

38In Grant, at para. 79, the Supreme Court of Canada stated that a court must consider “… whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.” The court also stated, at para. 98, that “… 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)”.

39The Crown submits that for every hour that the Defendant spent in custody unlawfully, a deduction can be made from the total sentence that he should serve if convicted of aggravated assault. If, however, the confession is excluded, the Crown submits that it will withdraw the charges against the Defendant as the prosecution will fail without the inclusion of such evidence. The Defendant submits that if the confession is excluded, the Crown may still proceed to trial on these charges based on the evidence that led to the Defendant’s arrest.

40I accept that there is a strong societal interest in the adjudication of these charges on the merits which supports inclusion of the Defendant’s statement given that: (1) they are serious charges, and (2) the Crown will withdraw the charges against the Defendant if the Defendant’s confession is excluded.

Balancing of Interests

41Despite the strong societal interest in the adjudication of these charges on the merits, I find that the balancing of interests favours the exclusion of the confession.

42In Koszulap, Martin J.A. observed, at para. 32, that:

… the administration of criminal justice in this country is predicated upon the due observance of fundamental safeguards. It is the duty of the Courts, at all levels, to be vigilant in making sure that these safeguards are not overlooked or ignored.

43The Defendant spent about 22 hours unnecessarily in police custody. This loss of liberty is significant. As Justice Iacobucci stated in R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R 309, at para. 47:

At the heart of a free and democratic society is the liberty of its subjects. Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty.

44Further, it is very significant in my weighing of the competing interests that the Defendant’s confession would not have been provided to the police had the TPS complied with s. 503 of the Criminal Code.

45Finally, there is no dispute that non-compliance with the requirement in s. 503 of the Criminal Code that an accused be brought before an available justice “without unreasonable delay” remains a systemic problem even though this requirement has been a codified part of s. 503 for more than 45 years. To allow the Defendant’s confession to be admitted as the Crown asks would send the wrong message to the police as it would approve their complacency in complying with s. 503 of the Criminal Code and s. 9 of the Charter.

CONCLUSIONS

46For the reasons given, I find that the Defendant’s statement to police on December 26, 2013 is inadmissible at trial.

faieta j.