Court File and Parties

COURT FILE NO.: 16-DV6834 DATE: 2019/04/01

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN – and – MAURICE LANDRIAULT

Counsel: Stephen Donoghue, for the Crown Sarah Ahsan, for the Accused Lara Malashenko, Counsel for the Ottawa Police Service (Respondent on the First and Third Party Records Application only) Gavin Johnston, Counsel for Shannon Ashford (Respondent on the First and Third Party Records Application only)

HEARD: December 12-14, 2018

RULING ON PRE-TRIAL APPLICATIONS First and Third Party Records Voluntariness of Statement Alleged Charter Breaches (ss. 7, 8, 10(a), and 10(b))

Oral Reasons Given on January 4, 2019

Corthorn J.

[1] The trial of this action commenced on February 13, 2019, before a judge and jury, and concluded with the jury’s verdict of “Not Guilty” on March 9, 2019. This ruling was written prior to the commencement of the trial; it was not released until after the jury rendered its verdict.

Background

[2] Maurice Landriault (“Mr. Landriault”) is charged with two offences: criminal negligence causing bodily harm and dangerous driving causing bodily harm pursuant to ss. 221 and 249(3), respectively, of the Criminal Code, R.S.C. 1985, c. C-46. The charges stem from an incident that occurred on August 12, 2016.

[3] On that date, a disagreement arose between Mr. Landriault and Shannon Ashford (“Ms. Ashford”), the mother of the couple’s then seven-year old daughter Lilly. The couple argued about whether Mr. Landriault would exercise his weekend parenting time with Lilly and, if so, on what terms. The disagreement had begun earlier in the week, when Mr. Landriault spoke with Ms. Ashford by telephone. The disagreement continued when Mr. Landriault arrived at Ms. Ashford’s home.

[4] Mr. Landriault ultimately left Ms. Ashford’s home with Lilly, and secured her in the back seat of his pick-up truck. Before, or as, Mr. Landriault drove away (a) Ms. Ashford put an arm inside the driver’s side window and was hanging onto the truck, and (b) Cody Ashford (“Cody”) got into the rear bed of the truck. Cody is Ms. Ashford’s son from another relationship. He was in his late teenage years at the time.

[5] As Mr. Landriault drove away, Ms. Ashford fell from the truck, to the road, and was run over by one of the truck’s rear tires. She sustained a fracture to one of her legs.

[6] Following Ms. Ashford’s fall, Mr. Landriault saw, from one of the mirrors on his truck, that Ms. Ashford had been run over. He pulled over to a nearby residential parking lot, and placed a 9-1-1 call. In response to that call, three members of the Ottawa Police Service (“OPS”) arrived at the location to which Mr. Landriault had driven.

[7] After discussion between Mr. Landriault and Cst. Showler, Mr. Landriault was arrested for assault and placed in Cst. Showler’s police cruiser. At the time of the arrest, Mr. Landriault was cautioned and advised of his right to counsel.

[8] Approximately 12 hours after his arrest, Mr. Landriault was interviewed by Det. Riopel at the Ottawa Police Station. The interview lasted slightly more than an hour. During the interview, Det. Riopel informed Mr. Landriault that the “allegations [the OPS] was looking into” included aggravated assault, dangerous driving, and assault with a weapon.

The Applications

a) The Records for Which Disclosure is Sought

[9] It is anticipated that Ms. Ashford will testify at trial as part of the Crown’s case. She has a criminal record. A copy of Ms. Ashford’s criminal record was disclosed by the Crown to defence counsel. In response, a request was made for disclosure of documents related to the entries in Ms. Ashford’s criminal record. There has been no further disclosure in response to that request.

[10] Accordingly, Mr. Landriault requests an order for disclosure of “documents, notes, occurrence reports and other records” (“the Documents”) from the OPS with respect to four specific entries in Ms. Ashford’s criminal record. Those entries reflect convictions for the following offences:

• Jan. 17/06 Assault a peace officer and carry a concealed weapon;
• Mar. 15/06 Assault a peace officer and resist arrest;
• Sept. 22/06 Obstruct a peace officer; and
• Jul. 17/09 Assault, with Mr. Landriault the victim of the assault.

[11] Defence counsel classifies the Documents as first party records, to be produced in accordance with the Crown’s disclosure obligations pursuant to the decision of the Supreme Court of Canada in R. v. Stinchcombe, [1991] 3 S.C.R. 326. In the alternative, a request is made for disclosure of the Documents, as third party records, pursuant to the two-step process established by the Supreme Court of Canada in R. v. O’Connor, [1995] 4 S.C.R. 411.

[12] The Crown, the OPS, and Ms. Ashford each submit that the Documents are third party records. With respect to the documents related to Ms. Ashford’s 2006 convictions, the Crown, the OPS, and Ms. Ashford take a uniform position; they submit that none of those documents are “likely relevant” in the context of the first step of the two-part O’Connor analysis.

[13] For the documents related to the 2009 conviction, the Crown and the OPS acknowledge they are “likely relevant” in the context of the first step of the two-part O’Connor analysis. Ms. Ashford takes a different position; she disputes the likely relevance of the documents related to the 2009 conviction.

b) Voluntariness of Statement

[14] The Crown seeks a declaration that the statements made by Mr. Landriault during the interview by Det. Riopel were voluntary. The statements include the playback of an audio recording made by Mr. Landriault, on a recording device, of the events of August 12, 2016 (“the Recording” and “the Device”).

[15] Mr. Landriault opposes the Crown’s application. He submits that the statements were not voluntary because (a) during the interview with Det. Riopel, there was a significant change in the jeopardy Mr. Landriault faced, and (b) at no time did Det. Riopel caution Mr. Landriault or advise him of his right to counsel.

c) Alleged Charter Breaches

[16] Mr. Landriault is seeking (a) a declaration that his rights pursuant to one or more of ss. 7, 8, 10(a), and 10(b) of the Canadian Charter of Rights and Freedoms were infringed, and (b) an order pursuant to s. 24(2) of the Charter excluding from evidence at trial the entirety of the statements made by Mr. Landriault during the interview with Det. Riopel and the re-playing, during that interview, of the Recording.

The Issues

[17] The issues to be determined are:

1. Are the Documents first party or third party records?
2. If the Documents are third party records: a) Has Mr. Landriault met the burden with respect to production for review by the court in accordance with O’Connor (step one in the two-part O’Connor analysis); and b) Based on that review which, if any, of the Documents are to be disclosed—subject to any redaction that may be ordered to protect the privacy interests of Ms. Ashford and of individuals other than Mr. Landriault (part two in the O’Connor analysis)?
3. Were the statements made by Mr. Landriault during the interview with Det. Riopel voluntary?
4. Which, if any, of Mr. Landriault’s Charter rights were breached in the investigation of the incident that occurred on August 12, 2016?
5. If any of Mr. Landriault’s Charter rights were breached, is the evidence obtained as a consequence of the breach or breaches to be excluded from evidence at trial?

Issue No. 1 - Are the Documents first party or third party records?

a) Positions of the Parties

[18] Mr. Landriault argues that the Documents are first party records because they are relevant to the issues at trial and to his right to make full answer and defence to the charges he faces.

[19] Mr. Landriault submits that upon receipt of the request for production of the Documents, the Crown had an obligation to review and provide disclosure in accordance with Stinchcombe. He describes the Crown as having an obligation, in response to a disclosure request, to bridge the gap that exists between the OPS (who are in possession of the Documents) and the Crown (which does not have possession of the Documents). Mr. Landriault emphasizes that, for the purpose of disclosure of first party records, the Crown and the OPS are not distinct entities.

[20] In response, the Crown argues that documents with respect to matters of investigation of someone other than the accused fall within the scope of third party records.

[21] The OPS adopts the Crown’s position. The OPS submits that the Documents are entirely unrelated to and are not “fruits of the investigation” of Mr. Landriault. As such, they are third party records.

[22] Ms. Ashford also adopts the Crown’s position. She submits that the fact she is now an alleged victim of a crime does not make the Documents first party records.

[23] For the purpose of the first step of the two-part O’Connor analysis, the Crown and the OPS concede that the documents related to Ms. Ashford’s July 2009 conviction for assaulting Mr. Landriault are “likely relevant”. Ms. Ashford does not make that concession.

b) Analysis

[24] As a general rule, in the absence of a nexus between a third party and the subject investigation, a criminal investigation file involving someone other than the accused falls within the scope of third party records. Disclosure obligations are therefore determined on an O’Connor application (R. v. Jackson, 2015 ONCA 832, 128 O.R. (3d) 161, at para. 81, leave to appeal to the S.C.C. refused, 36829 (30 June 2016) and R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 25).

[25] Both the Supreme Court of Canada and the Ontario Court of Appeal have recognized that exceptions to the general rule exist. In McNeil, at para. 17, Charron J. described the disclosure obligations of the Crown as extending beyond matters the Crown intends to adduce at trial:

Stinchcombe made clear that relevant information in the first party production context includes not only information related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence. [Citation omitted.]

[26] That passage was essentially repeated by Watt J.A. in Jackson, at para. 82.

[27] Defence counsel informed the court that the Documents are relevant to Mr. Landriault’s right to make full answer and defence. She and highlighted the following:

a) Necessity and self-defence are defences that may each be advanced at trial; b) Ms. Ashford’s credibility will be an issue at trial; and c) Mr. Landriault’s state of mind may be relevant to the mens rea element of the charge of dangerous operation of a motor vehicle causing bodily harm.

[28] The respondents rely heavily on the term, “fruits of the investigation”. They focus on the investigation of the charges against Mr. Landriault. That approach overlooks the Crown’s disclosure obligations with respect to information “of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence” (McNeil, at para. 17).

[29] In a number of decisions subsequent to McNeil, reference is made to an article by Professor (now Justice) Paciocco titled, “Stinchcombe on Steroids: the Surprising Legacy of McNeil” (2009), 62 C.R. (6th) 26. In that article, Professor Paciocco describes as “aggressive”, the Supreme Court of Canada’s interpretation of a prosecuting Crown’s disclosure obligations. That interpretation is said by Professor Paciocco to be “the innovation in McNeil that will have the greatest significance”.

[30] Defence counsel referred to five decisions in which records related to a witness, rather than to the subject accused, were found to fall within the scope of the Crown’s first party disclosure obligations. All but one of the decisions post-dates the decision in McNeil.

[31] In each of the five decisions, disclosure on a first party basis was ordered with respect to documents related to a Crown witness, whether the witness was the complainant or someone other than the complainant. In summary, the types of records for which disclosure was ordered on a first party basis include:

• A current and unedited Canadian Police Information Centre report that lists all charges against a Crown witness, in a murder case, including charges disposed of other than by way of conviction (R. v. Pickton, 2007 BCSC 718). Pickton is post-Stinchcombe and pre-McNeil.
• A Police Information Retrieval System report setting out any entry in which a Crown witness was recorded as being charged, a suspect, or the subject of a complaint (Pickton).
• In a break-and-enter case, all complaints made by the complainant, about the accused, to the investigating police force (R. v. Oliver, 2013 SKQB 187, 421 Sask. R. 18).
• Police occurrence reports related to past incidents involving a Crown witness in a murder case, including those that led to convictions and those that did not (R. v. Pinacie-Littlechief, 2017 SKQB 392).
• Occurrence reports of police investigations of the complainant in a case in which a police officer was charged with assault stemming from an arrest of the complainant (R. v. Furlotte, 2012 ONCJ 365).
• Occurrence notes, statements, and police notes from the investigating police force regarding criminal dispositions and convictions of the witnesses for the Crown in a case where a youth was charged with a number of serious offences (R. v. E.A., [2018] O.J. No. 5155 (Ct. J.)).

[32] Two decisions of this court released in 2018 provide further support for Mr. Landriault’s characterization of the Documents as first party records. Both decisions are cited in E.A.

[33] Chronologically, the first of the two decisions is that of Nakatsuru J. in R. v. Pompey, 2018 ONSC 1003. Disclosure, on a first party basis, was ordered of the Crown brief regarding an assault charge laid against the complainant in which the accused, Pompey, was the alleged victim. Nakatsuru J. found that the documents requested were relevant to the defence theory of “some provocation or an element of self-defence” (Pompey, at para. 13). He also found that the documents were relevant to the credibility of the complainant, which was an issue for the Crown to consider.

[34] The second decision is that of Reid J. in R. v. MacGarvie, 2017 ONSC 2745. Three accused were each charged with first degree murder. One of the accused, supported by the other two, applied for the production of the criminal record and occurrence reports, statements, and police notes from the investigating police force, which reasonably could be expected to contain information that might assist an accused in the exercise of the right to make full answer and defence. The request was for the disclosure of those documents for each of the 35 Crown witnesses.

[35] On the return of the application (a) the Crown agreed to produce the criminal records for each of the witnesses, and (b) the accused restricted the request for production of occurrence reports to those for nine of the 35 Crown witnesses. The reports were said to be relevant to the credibility of the witnesses and to the reliability of their evidence. Disclosure of the reports was ordered on a first party basis. Reid J. concluded that, “Police occurrence reports involving Crown witnesses reasonably can be expected to contain information that may assist an accused in the exercise of the right to make full answer and defence” (MacGarvie, at para. 20).

c) Discussion

[36] The Crown disclosed a copy of Ms. Ashford’s criminal record as a first party record. The Crown’s disclosure obligations did not end there. As the decisions cited above demonstrate, the Crown has an obligation to review documents related to the entries in the criminal record, and to disclose documents that have a reasonable possibility of assisting Mr. Landriault in making full answer and defence.

[37] The Crown cannot doubt that Ms. Ashford’s credibility will be an issue at trial.

[38] Defence counsel’s assessment of Ms. Ashford’s credibility has an impact on defence strategy from the outset, the development of defence theories, the accused’s decision whether to call any evidence, and the accused’s decision whether to testify. If the accused’s ability to make any one or more of those decisions is impeded, then he is not in a position to make full answer and defence to the charges against him.

[39] I find that defence counsel took a focussed approach by limiting the disclosure request to four entries in Ms. Ashford’s criminal record.

[40] In Pinacie-Littlechief, Kalmakoff J. listed a number of factors to be considered on an application of this kind. The following factors are listed at para. 33: “(i) the nature of the charge(s); (ii) the nature of the defence(s) being raised; (iii) the role that the witness or witnesses to whom the records relate play in the investigation and trial; and (iv) the evidence led on the application.”

[41] Based on the first three factors, I find that (a) the Documents are first party records, and (b) the Crown has an obligation to review the Documents and provide disclosure in accordance with Stinchcombe.

[42] In concluding that the Documents are first party records, I rely on the copy of Ms. Ashford’s criminal record included as a document in the application record. Ms. Ashford’s criminal record was produced by the Crown as a first party record. There is no dispute as to the authenticity or accuracy of the document.

[43] I also rely on the representations made by defence counsel with respect to the relevance of the Documents to the defence of the charges against Mr. Landriault. Defence counsel is an officer of the court. In the circumstances, an affidavit from someone other than defence counsel, listing the potential defences at trial and identifying Ms. Ashford’s credibility as an issue is not required.

[44] I turn to the fourth factor listed in Pinacie-Littlechief—the evidence led on the application. The respondents are critical of the lack of inclusion of affidavit evidence in support of the request for disclosure—whether on a first party or a third party basis. While the inclusion of affidavit evidence may be preferable on an application for disclosure of first party records, the lack of an affidavit is not fatal to Mr. Landriault’s request in that regard.

[45] In MacGarvie, Reid J. concluded that a third party records disclosure application was not properly before the court because the application was not supported by affidavit evidence (at paras. 11-13). The lack of a supporting affidavit did not, however, preclude the court from making an order for disclosure of documents as first party records.

[46] In response to Mr. Landriault’s request for additional disclosure, one or more of the respondents raised the issue of restrictions on the use that can be made at trial of the Documents, if disclosed. To the extent that there are restrictions, for example, in the use of the Documents during cross-examination of Ms. Ashford, that is an issue to be determined at trial. Those potential restrictions are not a factor in determining the Crown’s first party records disclosure obligations.

d) Summary

[47] I find that (a) the Documents are first party records, and (b) the Crown has an obligation to review the Documents and make such additional disclosure as may be required to comply with its obligations in accordance with Stinchcombe.

Issue No. 2 - The Documents as Third Party Records

[48] Given the outcome of Issue No. 1, it is not necessary for me to determine Issue No. 2. I am, in any event, satisfied on the materials before me that the O’Connor standard of “likely relevant” would be met with respect to not only the documents related to the July 2009 conviction, but to the three other convictions as well.

[49] In O’Connor, at para. 22, the Supreme Court of Canada explained that “likely relevance” means that “the presiding judge must be satisfied that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify.” For the reasons discussed above under Issue No. 1, I am satisfied that the Documents meet the “likely relevant” test.

[50] If proceeding on the basis of a decision on a third party records application, the Documents would be ordered produced to the court for review. Disclosure would then be addressed pursuant to step two of the O’Connor analysis.

Issue No. 3 - Voluntariness of Statement

a) Evidence on the Crown’s Application

[51] The Crown called four witnesses on the application: the three constables who attended at the location where Mr. Landriault parked his truck; and Det. Riopel. No witnesses were called on behalf of Mr. Landriault.

[52] Cst. Showler was the arresting officer. The other two officers who attended with or to assist Cst. Showler were Cst. Day and Cst. Shaw. The former’s primary responsibility was to ensure that Lilly and Mr. Landriault’s dog, who were both in the truck, were taken to places of safety. The latter’s primary responsibility was to have the truck towed for inspection, as part of the OPS investigation of the incident.

[53] Each of the officers who testified described Mr. Landriault as being upset to some degree. Cst. Showler described Mr. Landriault as “very distraught”, “upset”, “nervous”, “shocked”, and “angry”. When he left Mr. Landriault at the police station, there was no doubt in Cst. Showler’s mind that Mr. Landriault was upset because of everything that had happened.

[54] When she first encountered Mr. Landriault, Cst. Day could see that he had been crying and was “very upset”. Cst. Shaw’s interaction with Mr. Landriault was brief. Cst. Shaw’s evidence is that Mr. Landriault was “emotional”, “visibly upset”, in a “heightened state”, and “shaken up”.

[55] Both Cst. Showler and Cst. Day testified that despite Mr. Landriault’s apparent level of upset, he appeared to (a) be functioning fine, and (b) understand what was transpiring, including at the time of his arrest.

[56] Cst. Showler’s uncontradicted evidence is that Mr. Landriault was informed he was being arrested for assault. Mr. Landriault was given a caution and advised of his right to counsel. Cst. Showler read directly from his notebook when advising Mr. Landriault of his right to counsel. According to Cst. Showler, when being advised of his right to counsel, Mr. Landriault still appeared to be visibly distraught about what had happened.

[57] Neither Cst. Day nor Cst. Shaw were present when Cst. Showler cautioned Mr. Landriault and advised him of his right to counsel.

[58] Mr. Landriault arrived at the police station at approximately 12:00 p.m. He was placed in a holding cell. Cst. Showler asked Mr. Landriault if he wished to speak with a lawyer, to which he responded in the affirmative. Cst. Showler placed each call and was successful in reaching the third lawyer whose name he was asked by Mr. Landriault to call.

[59] When he connected with the lawyer, Cst. Showler gave his name, provided Mr. Landriault’s name and date of birth, and advised the lawyer that Mr. Landriault had been charged with assault. Cst. Showler testified that he left it up to Mr. Landriault to describe to the lawyer the events giving rise to the charge. Cst. Showler’s evidence is that Mr. Landriault had the opportunity to speak with counsel privately and that he did so for approximately 12 minutes. The lawyer to whom Mr. Landriault spoke is someone other than his defence counsel.

[60] Cst. Showler testified that he assumed Mr. Landriault was still upset when they were in the cell block area. Regardless, Mr. Landriault appeared at that time to be able to speak in a calm manner.

[61] At approximately midnight on August 12, 2016, Det. Riopel met up with Mr. Landriault in the cell block area and escorted him to an interview room. The interview was recorded. A transcript and a video recording of the interview are both exhibits on the application. The video recording was played, in its entirety, during Det. Riopel’s testimony.

[62] Det. Riopel testified that he began the interview by exchanging pleasantries with Mr. Landriault, in an effort to build a rapport with him. Det. Riopel described the rapport-building as a “fluid process”. His evidence is that he ended the rapport-building, using his “best judgment possible” as to when to caution Mr. Landriault.

[63] Approximately 1.5 minutes into the interview, Det. Riopel tells Mr. Landriault:

… and I’ll tell you Maurice (sic), uh, I’ve reviewed a lot … I’ve reviewed everything so far we have … I’ve spoken to … there’s tons of witnesses … I’ve spoken with everybody and the last piece of the puzzle for us is to hear your version of events and I am dying to hear what you have to say today because I honestly believe that you have a (inaudible) information (missing word) me that’s …

[64] Det. Riopel continues by stating “And I want to make sure I cover everything. Um because you have rights…um, legal rights and I want to make sure that you understand what those rights are”. Mr. Landriault tells Det. Riopel that he understands that he was arrested for “domestic violence”.

[65] At that point, Det. Riopel explains that the OPS is “looking into” allegations of aggravated assault, dangerous driving, and assault with a weapon. Det. Riopel explains to Mr. Landriault that the OPS is “still sorting things out”. Mr. Landriault acknowledges that he understands those allegations and what the OPS is investigating.

[66] Approximately five minutes into the interview, Det. Riopel questions Mr. Landriault as to what occurred at the time of the arrest. He confirms that Mr. Landriault (a) was read and understood “some rights”, (b) spoke with a lawyer, whom he did not know, when given an opportunity to speak with counsel, and (c) was informed by the lawyer that he was under no obligation to speak with the police.

[67] Immediately thereafter, Det. Riopel inquires as to how Mr. Landriault had been treated from the time of arrest to the start of the interview. Mr. Landriault complains of a sore hip from lying on the concrete slab in his cell. Mr. Landriault also inquires as to the whereabouts of his daughter and is told that she is safe and remains with her school friend. Mr. Landriault confirms that at no time was he threatened by any member of the OPS. He acknowledges that no one is forcing him to participate in the interview.

[68] Det. Riopel informs Mr. Landriault that everything said during the interview is being recorded and “may be used as evidence”. Det. Riopel concludes that portion of the interview by stating, “[a]nd those are the house rules that I have”. Mr. Landriault is given the opportunity to inform Det. Riopel of anything he does not understand and to ask questions. Mr. Landriault’s response is, “What I don’t understand is like, how am I…when I’m getting attacked. That’s what I don’t understand”.

[69] The interview continues for approximately another hour, during which time:

a) Mr. Landriault describes the events that transpired; b) Det. Riopel retrieves the Device from another officer; c) Det. Riopel plays the Recording made by Mr. Landriault; and d) Det. Riopel poses questions of Mr. Landriault based on the Recording.

b) The Positions of the Parties

[70] The Crown acknowledges that it has the onus to prove beyond a reasonable doubt that the statements made by Mr. Landriault during the interview with Det. Riopel were voluntary.

[71] There are four factors to be considered on a voluntariness application (R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3). The Crown submits that the evidence on the application supports a finding in their favour with respect to each of the four factors:

i) There was no threat made to cause Mr. Landriault to make the statements; ii) There was nothing oppressive about the circumstances Mr. Landriault faced from the time of his first contact with the police to the conclusion of the interview; iii) Mr. Landriault had a fully operating mind from the time of his first contact with the police to the conclusion of the interview. His level of upset or distress, although apparent to the officers, did not detract from his ability to function when dealing with the police; and iv) There was no trickery by the police at all and, in any event, no trickery that would shock the community.

[72] Defence counsel argues that Mr. Landriault’s circumstances were somewhat oppressive. He was experiencing physical discomfort in his cell and during the interview. In addition, he was never informed of the actual whereabouts of his daughter, despite his repeated expressions of concern for her well-being and safety. By the time Mr. Landriault was interviewed by Det. Riopel, Lilly had been picked up from the police station by her grandfather. She was not at her friend’s home, as Det. Riopel told Mr. Landriault.

[73] Defence counsel also submits that Det. Riopel did not, at the outset of the interview, fairly portray the information he reviewed in preparation for it. Defence counsel argues that Det. Riopel’s conduct in that regard constitutes trickery.

[74] Defence counsel argues between the time of arrest and the interview, there was a significant change in the jeopardy that Mr. Landriault faced. Because of that change, Mr. Landriault had the right to once again be cautioned and advised of his right to counsel. The caution and right to counsel given at the time of arrest on the charge of assault were not sufficient to address the more significant potential charges of aggravated assault, dangerous driving, and assault with a weapon.

[75] Lastly, defence counsel submits that to the extent that Mr. Landriault’s rights under ss. 7 and 10(b) of the Charter were breached, those breaches are factors to be considered when determining the issue of voluntariness of the statements. In the absence of a second caution and right to counsel at the outset of the interview, the statements cannot be said to be voluntary.

c) Analysis

[76] The police have a duty to advise an accused person of his or her right to counsel (a) at the time of the initial arrest, and (b) in the event of a change in the accused’s circumstances, such as the accused becoming a suspect for a different, more serious crime than that for which the accused was initially advised of the right to counsel (R. v. Black, [1989] 2 S.C.R. 138 and R. v. Evans, [1991] 1 S.C.R. 869, at p. 892).

[77] At least three broad categories of a change in circumstances have been recognized (R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at paras. 48, 50-52). The categories include:

a) New procedures involving the accused as a detainee, such as a request to participate in a line-up; b) A change in jeopardy; and c) An indication that the accused person may not have understood his or her right to counsel when first advised of that right.

[78] Mr. Landriault submits that the nature of the changes in the circumstances that he faced fall into the first two of the three categories listed above. Given those changes in circumstance, the police were required to once again caution him and advise him of his right to counsel.

[79] First, Mr. Landriault argues that retrieving and playing the Recording constitutes a new procedure. He was entitled to be advised of his right to speak to counsel about that procedure before deciding whether to consent to the Recording being played and to being questioned about its contents.

[80] Second, Mr. Landriault submits that he faced a significant change in jeopardy when he was interviewed by Det. Riopel. Mr. Landriault was arrested for assault or, as he described to Det. Riopel, “domestic violence”. In that regard, I note the following:

• Cst. Showler informed the lawyer to whom Mr. Landriault spoke that the sole charge was assault; and
• In the early stage of the interview, Det. Riopel introduced himself as an investigator with the OPS, “Specifically, in the Domestic Violence Unit.”

[81] It was not until a few minutes into the interview that Det. Riopel informed Mr. Landriault that the OPS were investigating the additional charges of aggravated assault, dangerous driving, and assault with a weapon.

[82] The second point is broader in scope than the first. I will therefore deal with the second point first.

i) Change in Jeopardy

[83] When Mr. Landriault spoke with the lawyer, it was with respect exclusively to a charge of assault. I find that Mr. Landriault was never given the opportunity to speak to a lawyer about any charge or potential charge, other than that of “assault”. In the end, the indictment does not include the charge of assault; nor does the indictment include the charges of aggravated assault and assault with a weapon. Mr. Landriault was not cautioned or advised, prior to the interview, of his right to speak to counsel about the two offences with which he was ultimately charged.

[84] Det. Riopel was candid in his admission that at no time during the interview did he do any one or more of the following: (a) ask Mr. Landriault if he wished to speak to a lawyer; (b) arrest Mr. Landriault for a charge other than assault; (c) give Mr. Landriault a caution; or (d) advise Mr. Landriault of his right to consult counsel. Det. Riopel was unable to explain why, in the circumstances, he took none of those steps.

[85] Det. Riopel’s candour is also reflected in his admission that the change from a single charge of assault to three potential charges, including aggravated assault, dangerous driving, and assault with a weapon, constitutes a significant change in jeopardy. Det. Riopel testified that the proper procedure to have followed in the circumstances would have been to re-arrest Mr. Landriault, repeat the caution, and advise him again of his right to counsel.

[86] Det. Riopel’s description of the significance of the change in jeopardy that Mr. Landriault faced might, on its own, be sufficient to support a conclusion that his statement was not voluntary. That description is, in any event, supported by the case law.

[87] For example, in R. v. Moore, 2016 ONCA 964, 34 C.R. (7th) 213, a change in the charge from dangerous driving causing bodily harm to assault with a weapon (i.e., a motor vehicle) was found to be a significant change in jeopardy that gave rise to the accused’s right to be informed a second time of the right to speak to counsel (at paras. 7, 10). The change in jeopardy was measured on the basis of the difference in “moral blameworthiness” and of the change in the potential penalty faced by the accused from the original to the final charge (Moore, at para. 10).

[88] There is a difference in moral blameworthiness between a single charge of assault and the three charges individually or collectively of aggravated assault, dangerous driving, and assault with a weapon. In addition, the potential penalty faced is different as between assault (five-year maximum sentence) and any one or more of assault with a weapon (ten-year maximum, when proceeding is by indictment), dangerous driving (five-year maximum, when proceeding is by indictment), and aggravated assault (14-year maximum).

[89] The potential penalties for each of the offences with which Mr. Landriault was ultimately charged include a ten-year maximum sentence.

[90] In attempting to minimize the changes in jeopardy faced by Mr. Landriault, the Crown points to the difference in the mens rea element for the charge of assault (an intentional act) and dangerous driving causing bodily harm (conduct amounting to a marked departure from the standard of care a reasonable person would observe in the accused’s circumstances). Had the change in jeopardy that Mr. Landriault faced been restricted to one from a charge of assault to only the charge of dangerous driving causing bodily harm, the Crown’s submissions might have carried some weight. Even then, consideration would still have to be given to the change in the potential penalty—from a five-year to a ten-year maximum. I am not persuaded by the Crown’s submission.

[91] The Crown argues that the 12 minutes Mr. Landriault had to speak with a lawyer, by telephone and shortly after arriving at the police station, were sufficient to comply with his right to consult counsel pursuant to s. 10(b) of the Charter. The Crown submits that based on the conversation with Mr. Landriault, the lawyer would have understood that there was the potential for Mr. Landriault to face charges other than a single charge of assault.

[92] The Crown relies on Mr. Landriault’s willingness to tell his version of the events to Cst. Showler (at the location of the arrest) and to Det. Riopel, and asks the court to draw an inference and find that Mr. Landriault was equally forthcoming when explaining things to the lawyer with whom he spoke. The Crown asks the court to find that Mr. Landriault’s singular telephone conversation with the lawyer was fulsome and sufficient, the latter including for the purpose of the interview.

[93] I am unable to draw the inferences requested by the Crown. To draw such inferences would require the court to speculate about what was said by Mr. Landriault to the lawyer. It would also require speculation about what the lawyer said and would have said to Mr. Landriault, the latter in the event the lawyer was told of potential charges other than assault. It is not the court’s role to speculate in that manner (R. v. McDonald, 2018 ONSC 781, at para. 128).

[94] In summary, I find that because of the change in jeopardy that he faced, Mr. Landriault had the right to be cautioned and to be advised of his right to counsel before proceeding with the interview with Det. Riopel. As a result of the failure on the part of Det. Riopel, or any other officer involved in the investigation, to carry-out those steps, I find that the statements made by Mr. Landriault during the interview were not voluntary.

ii) Playback of the Recording

[95] I return to Mr. Landriault’s first point—the introduction, during the interview, of a new procedure.

[96] I agree with defence counsel’s description of the retrieval of the Device and replaying of the Recording as a “new and non-routine procedure”. Mr. Landriault mentioned the Recording within the first two minutes of the interview. In response, Det. Riopel said that he had forgotten the Recording and would need to leave the interview room to retrieve it. Before the Recording was played, Det. Riopel made the statement, quoted above, about “house rules”.

[97] Given the findings made above, Mr. Landriault was not advised of his rights, as was intended by Det. Riopel, (a) before the Recording was played, or (b) before Mr. Landriault responded to questions based on the Recording.

[98] Defence counsel submits that the replaying of the Recording and the interview constitute a single, continuous statement. I agree. In any event, to the extent that the replaying of the Recording and the answers given by Mr. Landriault with respect to it may be considered as distinct from the balance of the interview, I find that neither the replaying of the Recording nor the answering of questions about the recording was voluntary.

d) Summary

[99] I find that neither the statements made during the entirety of the interview nor the replaying of the Recording were voluntary. As such, the entirety of the interview and the replaying of the Recording are, on the basis of the common law confessions rule, excluded from evidence at trial.

Issue No. 4 - Alleged Charter Breaches

[100] Unless otherwise stated, all section numbers referred to in this section of the ruling are from the Canadian Charter of Rights and Freedoms.

a) Positions of the Parties

[101] Mr. Landriault’s position is that his rights pursuant to ss. 7, 10(a), and 10(b) were infringed because he was not cautioned or advised of his right to counsel before or at the outset of his interview with Det. Riopel.

[102] With respect to the Recording, Mr. Landriault’s position is that the seizure and search of the Device were carried out without a warrant and were therefore presumptively unreasonable. The Crown therefore bears the onus of establishing that Mr. Landriault consented to the search and, as a result the search was justified. Mr. Landriault once again relies on the lack of the second caution and second right to counsel in submitting that the Crown is unable in the circumstances of this case to establish consent.

[103] The breaches of Mr. Landriault’s Charter rights are said by defence counsel to meet the criteria under s. 24(2) for exclusion of the evidence obtained as a result of the breaches.

[104] The Crown denies that there were any breaches of Mr. Landriault’s Charter rights. It also submits that if any Charter breaches are found, they do not warrant exclusion of evidence under s. 24(2).

b) Sections 7, 10(a), and 10(b)

[105] Given the evidence reviewed and the findings made with respect to Issue No. 3, I shall address, collectively, the alleged breaches of ss. 7, 10(a), and 10(b). The search and seizure with respect to the Recording has yet to be addressed. I address the alleged breach of s. 8 as a distinct issue, below in sub-section (c) of this section of the ruling.

[106] In R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, the Supreme Court of Canada described the relationship between voluntariness and an accused person’s right to silence. At para. 37, Charron J. said:

The right to silence is defined in accordance with constitutional principles. A finding of voluntariness will therefore be determinative of the s. 7 issue. In other words, if the Crown proves voluntariness beyond a reasonable doubt, there can be no finding of a Charter violation of the right to silence in respect of the same statement. The converse holds true as well. If the circumstances are such that an accused is able to show on a balance of probabilities a breach of his or her right to silence, the Crown will not be in a position to meet the voluntariness test.

[107] I note that a corollary was not identified specifically to the effect that a finding that a statement that was not voluntary means that the accused person was denied their right to silence.

[108] Sections 7 and 10(b) prescribe related rights. The relationship between those two sections was addressed by the Ontario Court of Appeal in R. v. Smith (1996), 28 O.R. (3d) 75. At para. 50 of that decision, Doherty J.A. said:

If the detainee has the right to counsel based on the operation of s. 10(b), then s. 7 (like s. 10(b)) requires that the detainee be informed of that right. Where s. 10(b) rights do not exist, then the s. 7 right to make an informed choice as to whether to speak to the police requires only that the police not engage in conduct that effectively and unfairly deprives the detainee of the right to choose whether to speak to the police.

[109] I have already concluded that Mr. Landriault (a) had the right to be cautioned and informed of his right to counsel a second time—on August 12 or in the early morning hours of August 13, 2016, and (b) was neither cautioned nor advised of his right to counsel a second time. For the reasons given on voluntariness application, I find that Mr. Landriault’s rights pursuant to s. 10(b) were breached.

[110] Taking into consideration the relationship between ss. 7 and 10(b), I find that Mr. Landriault was deprived of the ability to (a) seek the advice of counsel, and (b) make an informed choice about whether to be interviewed by Det. Riopel or to remain silent. I find that Mr. Landriault’s s. 7 right to silence was breached.

[111] I turn to s. 10(a), which provides that, “Everyone has the right on arrest or detention… to be informed promptly of the reasons therefore”. One of the reasons why an individual is entitled to receive information promptly of the reason for arrest or detention is so that they are in a position to decide whether or not to exercise their right to counsel.

[112] By the time Mr. Landriault was being interviewed by Det. Riopel, not only was he under arrest for assault, he was being detained as part of an investigation on charges of aggravated assault, dangerous driving, and assault with a weapon. Relying on findings made on the voluntariness application, I conclude that Mr. Landriault was not promptly informed of the additional reasons for his detention. I find that his rights pursuant to s. 10(a) of the Charter were breached.

c) Section 8

i) The Evidence

[113] Cst. Showler testified as to how he came into possession of the Device:

• When Mr. Landriault exited the house to which he had taken Lilly, he mentioned to Cst. Showler that he had the Device and used it in his dealings with Ms. Ashford;
• Cst. Showler’s initial response was to tell Mr. Landriault to put the Device away;
• Sometime later, while still at that location and at the time of the arrest, Cst. Showler searched Mr. Landriault, found the Device, and placed it in a property bag; and
• Cst. Showler did not detect any reaction from Mr. Landriault when the Device was taken from him.

[114] Cst. Day testified that, at the time of his arrest, Mr. Landriault was trying to play the Recording. Cst. Day’s evidence is that she and Cst. Showler prevented Mr. Landriault from playing the Recording because they first wanted Mr. Landriault to be advised of his rights. Cst. Day understood that the Recording could be evidence. She acknowledged that she heard a portion of the Recording before she and Cst. Showler stopped Mr. Landriault from playing the balance of it.

[115] Detective Riopel’s evidence was reviewed in part, above, in my reasons on the voluntariness application, including with respect to the logistics and timing of playing the Recording during the interview.

[116] In the context of the Charter application, it is important to review Det. Riopel’s evidence as to his practice with recording devices. Det. Riopel testified that his practice is to obtain a search warrant after the seizure of such a device and before searching it for content relevant to an investigation.

[117] Det. Riopel was aware before the interview began, that the Device had been seized. He was uncertain whether a warrant was obtained between Cst. Showler’s search of Mr. Landriault (at which time the Device was seized) and when the Device was played during the interview.

ii) Positions of the Parties

[118] The Crown submits that Det. Riopel’s practice of obtaining a warrant does not support a finding that a warrant was necessary in the circumstances.

[119] The Crown’s position is that Mr. Landriault had been trying to play the Recording for the police from the outset; he clearly consented not only to the police having the Device, but also to the police playing it. Mr. Landriault’s willingness to have the police hear the Recording is further demonstrated by his conduct during the interview:

a) Mr. Landriault was the first to bring up the existence of the Recording; b) Once Det. Riopel brought the Device to the interview room, Mr. Landriault asked to have it to play for the detective; and c) Mr. Landriault offered his assistance as Det. Riopel was playing the Recording.

[120] In addition, the Crown argues that the caution and right to counsel given to Mr. Landriault by Cst. Showler at the time of arrest were sufficient in the circumstances. From that point forward, Mr. Landriault understood that the Recording could be used as evidence in support of the charge against him. The changes to the charge or the potential charges were not relevant to Mr. Landriault’s understanding in that regard.

[121] Mr. Landriault asserts that he had a reasonable expectation of privacy with respect to the Recording. To waive that expectation requires informed consent. He was not informed of the change in the allegations being investigated until after he co-operated with the police by giving his consent to play the Recording. The search of the Device was unreasonable because it was without lawful basis.

iii) Analysis

[122] To the extent, if any at all, that the evidence supports a finding that Mr. Landriault initially consented to the Recording being played, such consent has to be considered in light of the circumstances as they evolved throughout August 12 and 13, 2016. I find that the failure of the OPS to both caution and advise Mr. Landriault of his right to counsel a second time deprived him of the “requisite informational foundation” for a true relinquishment of the right [to privacy]” (R. v. Borden, [1994] 3 S.C.R. 145, at para. 34).

[123] Absent informed consent to the search of the Device, Mr. Landriault cannot be said to have waived the protection afforded him under s. 8 (R. v. Wills (1992), 7 O.R. (3d) 337, at paras. 46, 48 (C.A.)). Absent informed consent, there was no lawful basis upon which to search the Device. I find that the search, being the playback of the Recording as part of the interview, was unreasonable and a breach of Mr. Landriault’s s. 8 rights.

d) Summary

[124] I find that the interview of Mr. Landriault by Det. Riopel occurred as a result of the breach of Mr. Landriault’s ss. 7, 10(a), and 10(b) rights. In addition, I find that the playback of the Recording on the Device during the interview occurred as a result of a breach of Mr. Landriault’s s. 8 rights.

Issue No. 5 – Request for Exclusion of Evidence

[125] For the reasons given above, under Issue No. 4, Mr. Landriault has satisfied the first part of analysis required pursuant to s. 24(2) of the Charter. He has established that evidence was obtained “in a manner that infringed or denied [a number] of rights or freedoms guaranteed by [the] Charter”. To succeed under s. 24(2), however, Mr. Landriault must also satisfy the court that the evidence is to be excluded because, “having regard to all the circumstances, the admission of it [at trial] would bring the administration of justice into disrepute”.

[126] The framework for this analysis was set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71. The court is required to pursue three avenues of inquiry, each of which is rooted in maintaining, from a long-term perspective, the integrity of and public confidence in the justice system.

[127] This framework requires the trial judge to 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 conduct;
2. The impact of the breach of the Charter-protected interests of the accused; and
3. Society’s interest in the adjudication of the case on its merits.

[128] Given the attention already paid to and the analysis carried out with respect to the police conduct and the infringement of Mr. Landriault’s Charter rights, I shall deal briefly with the three avenues of inquiry.

a) Seriousness of the Charter-infringing State Conduct

[129] Det. Riopel acknowledged that Mr. Landriault faced a significant change in jeopardy from the time of his arrest to the time of the interview. Det. Riopel testified that when an accused person faces a significant change in jeopardy, his practice is to repeat both the caution and the right to counsel. Yet Det. Riopel offered no explanation for his failure on August 13, 2016 to follow that practice. I find that Det. Riopel was reckless in disregarding what he knew to be the practice to be followed in the circumstances.

[130] The interview occurred over more than an hour. Det. Riopel took two breaks during the interview—one to get Mr. Landriault something to drink and the other to retrieve the Device. There was nothing exigent about the circumstances that made it necessary for Det. Riopel to carry out the interview without repeating both the cautions and the right to counsel.

[131] I do not find that, when conducting the interview, Det. Riopel acted in bad faith or that he wilfully breached Mr. Landriault’s Charter rights. Regardless, the Charter-infringing conduct with respect to the interview as a whole and to the playback of the Recording is serious.

b) Impact of Charter Breaches on Accused’s Interests

[132] The various Charter breaches had a significant impact on Mr. Landriault’s Charter-protected interests. I agree with defence counsel’s summary of the impact of the breaches—they “undermined [Mr. Landriault’s] liberty, autonomy, and expectation of privacy”.

[133] It is not the role of the court to speculate as to what Mr. Landriault would have done had his rights pursuant to ss. 10(a) and (b) not been breached. There is no way of knowing what Mr. Landriault had already discussed and what he might otherwise have discussed with counsel, the latter if fully informed of his situation and given a second opportunity to consult counsel. I find that the decisions made by Mr. Landriault were not freely made on a fully-informed basis.

[134] The impact of the breaches is significant.

c) Society’s Interest in Adjudication on the Merits

[135] The inquiry into the circumstances in which the statements were made by Mr. Landriault and the Recording was played back on the Device has been broad. I have already determined that, on the basis of the common law confessions rule, the statements made by Mr. Landriault are to be excluded from evidence at trial.

[136] Independent of that ruling, I find that society’s interests in a trial on the merits is better-served by the exclusion of the statements pursuant to s. 24(2). While there is no absolute rule of exclusion for Charter-infringing statements, the Ontario Court of Appeal has noted that “as a matter of practice, courts have tended to exclude such statements on the ground that admission on balance would bring the administration of justice into disrepute” (R. v. Moore, 2016 ONCA 964, 34 C.R. (7th) 213, at para. 14).

[137] I find that the admission of the statements made during the interview, including the playback of the Recording, would bring the administration of justice into disrepute.

[138] Declining to admit the statements and the re-playing of the Recording does not undermine the ability of the Crown to proceed with the case. The Crown is still in a position to call Ms. Ashford, Cody Ashford, and other eyewitnesses to the incident.

Disposition

[139] At the conclusion of the hearing of these applications, counsel for the OPS filed two sealed packages with the court. The packages contain the documents, notes, occurrence reports, and other records related to each of the four entries in Ms. Ashford’s criminal record for which disclosure is requested. One package contains an unredacted version of the Documents (exhibit “A”) and the other package a redacted version of the Documents (exhibit “B”).

[140] The Crown is ordered to:

a) Examine the contents of exhibits “A” and “B”; b) Review the documents, notes, occurrence reports, and other records contained therein for the purpose of identifying those documents in respect of which there is a reasonable possibility that there is information that may assist the accused in the exercise of the right to make full answer and defence; and c) Disclose any documents in respect of which there is a reasonable possibility that there is information that may assist the accused in the exercise of the right to make full answer and defence.

[141] In the event that Mr. Landriault is not satisfied with the materials disclosed by the Crown, defence counsel may address the matter, and/or renew the third party records application, on the first date available before me prior to the commencement of trial.

[142] The entirety of the interview and the replaying of the Recording are excluded from evidence at trial (a) on the basis of the common law confessions rule, and (b) pursuant to s. 24(2) of the Charter.

Madam Justice Sylvia Corthorn Released: April 1, 2019

COURT FILE NO.: 16-DV6834 DATE: 2019/04/01 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – MAURICE LANDRIAULT

ruling on pre-trial applications First and Third Party Records Voluntariness of Statement Alleged Charter Breaches (ss. 7, 8, 10(a), and 10(b))

Madam Justice S. Corthorn Released: April 1, 2019