R. v. Gittens and McCalla, 2019 ONSC 3370

Court File No.: CR-17-10000225 Date: 2019-05-31 Superior Court of Justice - Ontario

Re: R. v. Marcia Gittens and Horace McCalla

Before: H. McArthur J.

Counsel: D. Moskovitz, Counsel for the Crown R. Parker and M. Andrews, Counsel for Marcia Gittens G. Grill, Counsel for Horace McCalla

Heard: February 19, 20, 21, 22, 27, 28, March 1, 4, 5, 6, 7, and April 11, 2019 and by written submissions filed March 19, 2019

Introduction

[1] Marcia Gittens and Horace McCalla are charged with failing to provide the necessaries of life and criminal negligence causing bodily harm in relation to their son, Phoenix McCalla.

[2] Both Ms. Gittens and Mr. McCalla gave statements to the police when they were at the hospital with their son. The Crown seeks to have the statements admitted, arguing that they were voluntary and constitutionally compliant. Defence counsel counter that the Crown has failed to establish voluntariness beyond a reasonable doubt. Moreover, defence counsel argue that the police violated Ms. Gittens’ and Mr. McCalla’s rights pursuant to ss. 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms, and that their statements should be excluded pursuant to s. 24(2).

[3] For the reasons set out below, I find that Ms. Gittens’ statement is inadmissible as the Crown has not established beyond a reasonable doubt that it was involuntary. I also find that the police breached Ms. Gittens’ s. 10(b) rights, and that her statement should be excluded pursuant to s. 24(2). As it relates to Mr. McCalla, I find that his statement is admissible as it was voluntary and obtained in compliance with the Charter.

[4] I propose to briefly outline the facts. I will then consider the legal issues in relation to Ms. Gittens, before turning to the arguments advanced with respect to Mr. McCalla.

Brief Overview of the Facts

a) Ms. Gittens and Mr. McCalla Bring Phoenix to the Hospital

[5] On the morning of Tuesday March 15, 2016, Ms. Gittens and Mr. McCalla brought their then five-year-old son Phoenix to the Hospital for Sick Kids. They told the doctors that Phoenix had fallen down the stairs on Sunday, but that he seemed fine until Tuesday morning, when he was unable to get out of bed on his own.

[6] Both Ms. Gittens and Mr. McCalla stayed with their son overnight at the hospital. Ms. Gittens testified that neither she nor her husband slept. In the morning, Ms. Gittens went home to prepare some food for Phoenix, while Mr. McCalla stayed at the hospital with their son. Ms. Gittens returned a short while later, and both parents continued to stay with their son.

b) The Police and the Children’s Aid Society Become Involved

[7] The medical staff became concerned about Phoenix’s condition and contacted Lynne Maitland with the Children’s Aid Society (CAS). Ms. Maitland consulted with an officer with the Toronto Police Services at the Child and Youth Advocacy Centre. They made the decision to embark on a joint investigation.

[8] At 3:30 p.m., on March 16, 2016, Ms. Maitland, along with Officers George Maxwell, Crystal McLeod, and Conrad Wong, met with Dr. Emma Cory and Dr. S. Schwartz. A CAS supervisor, Pat Sisson, also participated in the meeting by way of the telephone.

[9] At the briefing, the doctors advised that Phoenix was severely malnourished; he had several nutritional deficiencies, including vitamin B12, vitamin D, calcium and folate. The police were also told that Phoenix’s bones were fragile and that he had multiple fractures in his arms and legs, in various stages of healing. The doctors told the police that the information provided by Ms. Gittens and Mr. McCalla about Phoenix’s nutrition seemed inconsistent with his physical condition. The doctors specifically told the police that the fractures seemed inconsistent with the parents’ explanation about a fall down the stairs. The police were advised that the CAS was apprehending Phoenix.

c) Ms. Gittens and Mr. McCalla are Told the Police Want to Speak with Them

[10] By approximately 4:30 p.m. on March 16, both Ms. Gittens and Mr. McCalla were waiting to speak with police in a video interview room at the Suspected Child Abuse and Neglect (SCAN) unit video-interview room at the hospital. None of the police were able to say how they got there.

[11] Ms. Gittens testified that she and her husband were at Phoenix’s bedside when Dr. Cory and another woman, whom she could not identify, came to tell them that the police had concerns about Phoenix’s condition and wanted to speak with them. Ms. Gittens said that when she and her husband said they did not want to leave their son, the two women kept telling them that the police wanted to speak with them about the concerns that they had about Phoenix.

[12] Ms. Gittens initially said that it took a “few” minutes of the women asking them to speak to the police before she and her husband agreed to go. In cross-examination, she agreed that it could be up to 10 minutes, although she was only estimating. Ms. Gittens agreed that they were not told that they would be arrested or that their son would be taken away if they did not go to speak to the police. That said, she testified she felt pressured and like she had no choice but to go and speak with the police; if she did not, she could be arrested and prevented from being able to stay with her son.

[13] Ms. Gittens said that when they left their son’s room to go to the SCAN unit, Officer Maxwell was waiting in the hall. He introduced himself and walked with them to the SCAN unit. He did not say anything of import along the way.

[14] The Crown called Dr. Cory in reply. Dr. Cory testified that she had no memory of taking Ms. Gittens and Mr. McCalla to the SCAN unit, and that it seemed unlikely that she did so. That said, Dr. Cory also testified that it was possible that she did ask them. If she was the one who told the parents that the police wanted to speak to them, Dr. Cory has a mental script that she follows in such situations. Dr. Cory said that she would provide her name and tell parents that the police and CAS were there and she would like to take parents to meet with them. Dr. Cory said she would not use the word suspect, as “words are powerful” and she does not like the connotation that parents might get from that word. Despite that, however, Dr. Cory also said that she would tell parents that she worked with the Suspected Child Abuse and Neglect unit rather than using the acronym SCAN. Dr. Cory agreed that she might use the word “concern” when talking to parents about why the police wished to speak with them.

[15] Dr. Cory said that if parents did not want to go and speak to the police, she would ask them why, but she would not pressure a parent to talk to the police. Dr. Cory said that parents being asked to speak with the police in the SCAN unit can experience a range of emotions and that is it a stressful time for them; she also said she understood how a parent might have a difficult time understanding the roles of the various personnel involved. While Dr. Cory said that SCAN has principles and guidelines about the right approach to use in such a situation, everyone is different and others might choose different language; she could only speak to what she might say.

[16] Officer Maxwell testified that he never went up to the floor Phoenix was on, and that he met the parents for the first time on the 6th floor of the hospital where the SCAN unit is located.

[17] I agree with Crown counsel that there are some issues with Ms. Gittens’ evidence as to who met with them to tell them that the police wanted to speak to them, and precisely what was said. Given Dr. Cory’s evidence, it seems unlikely that she was the one who went to speak to Ms. Gittens and Mr. McCalla. Moreover, given that they were on a hospital ward with their son, it seems unlikely that medical staff pressured Ms. Gittens and Mr. McCalla for up to 10 minutes to go and speak with the police. This would be potentially disruptive to other patients and their families.

[18] Further, given the timing of the briefing and what can be seen on the videos, it seems unlikely that Officer Maxwell went to the medical ward to escort the parents down to the SCAN unit.

[19] On the other hand, I accept that Ms. Gittens was exhausted and had already dealt with numerous medical staff by the time she was told that the police wanted to speak to them. It is not surprising in these circumstances that she would not clearly remember which staff members alerted her to the fact that the police were there to speak with them about Phoenix. While there may be some reliability issues with Ms. Gittens’ evidence, however, I do not find that she was being purposely misleading. Ms. Gittens candidly admitted that the medical staff did not ever tell her that she had to speak to the police, that she would be arrested if she did not speak with the police or that she would not be able to stay with her son if she refused to speak with the police. If Ms. Gittens had wanted to make up a story, it would have been easy for her to say that some unknown medical staff came to her room and made such threats. Similarly, while Ms. Gittens recalls Officer Maxwell meeting them in the hallway outside of her son’s room, she did not accuse him of saying anything improper there or on the walk to the SCAN unit. Thus, while I have some issues with the reliability of Ms. Gittens’ evidence about the interaction with the medical staff that led her to go to the SCAN unit, as well as her recollection of meeting Officer Maxwell outside of Phoenix’s room, in my view it does not detract from her credibility.

[20] Ms. Gittens said that she was told that the police wanted to speak with her because they had concerns about Phoenix’s condition. This is in line with what Dr. Cory testified would have been said to a parent. Ms. Gittens said that when they told the staff that they did not want to leave their son’s bedside, they were told again that the police wanted to speak to them because they had concerns about their son. While I do not accept that the staff pressured Ms. Gittens and Mr. McCalla for a lengthy time, based on Dr. Cory’s evidence I accept that they did not simply accede to Ms. Gittens’ stated position that she did not want to leave her son, and instead followed up with further questions and comments. The import of this finding will be addressed in my analysis.

d) The Initial Interview with Both Ms. Gittens and Mr. McCalla

[21] At approximately 4:30 p.m. on March 16, Ms. Maitland and Officers Maxwell, McLeod and Wong entered the interview room on the SCAN unit where Ms. Gittens and Mr. McCalla were seated on a couch. The entire interaction was captured on video. Ms. Gittens testified that at the time the police entered, she and her husband were exhausted. The video depiction of them when the police first walked into the room supports her evidence on this point.

[22] Officer Maxwell introduced everyone, and said that “…all of our best interests are the same, which is Phoenix”. As a result, he was “optimistic” that they could take statements, with Ms. Gittens providing her statement in that room, and Mr. McCalla giving his statement in the room across the hall. Both Ms. Gittens and Mr. McCalla seemed surprised to hear that their interviews would be conducted separately, telling Officer Maxwell that the “lady” they spoke with said that the police wanted them to do the interview together.

[23] When asked if they had any questions, Mr. McCalla responded by asking where Phoenix was. Ms. Gittens said that they had been told they could go back and Phoenix would be where they left him. Officer Maxwell replied that hospitals were “famous” for making people wait and that this would be a “good window of opportunity” to talk.

[24] Officer Maxwell told both parents that it was important that they understood that they did not have to give a statement. He then said that the police were there with an “open mind”, but at the same time they had received “concerning information” from the doctors and so they wanted to “clear [them] as much as find out if something bad has happened to Phoenix.”

[25] Mr. McCalla responded by asking what the officer meant by “clearing”. Officer Maxwell replied that they wanted to “explore” why Phoenix was there, as there are reasons that are “non-criminal in nature, people are not necessarily doctors and they’re acting in good faith, parenting their child”. Officer Maxwell said “sometimes there’s medical errors” and they wanted to “explore those as well”.

[26] Following that exchange, Officer Maxwell said to Mr. McCalla “[s]o if you’ll join me, we’re just going right across the hall”. To Ms. Gittens he said, “[a]nd you can stay here… unless you have to go the bathroom or something”. At that, he and Officer McLeod left the interview room with Mr. McCalla, leaving Ms. Gittens in the room with Officer Wong and Ms. Maitland.

e) Ms. Gittens’ Interview

[27] Ms. Gittens’ interview lasted almost two hours. Officer Wong started the interview by telling Ms. Gittens that the door was “simply closed”, not locked, and that she could end the statement at any time. Ms. Gittens responded that while Officer Maxwell had said that they did not have to give a statement that “it’s in our best interests to do it, right?” Officer Wong replied that the more information they had the better off they were, as at the “end of the day, our best interest is… Phoenix”. He then said that Phoenix would not be there unless there was some sort of a medical issue and that they needed to know as much information as they could. Officer Wong then gave the example that if Ms. Gittens had ever needed paramedics, she would know that they always speak with the family to ask about medical history. Similarly, he said that by Ms. Gittens speaking to the police, it would assist them in figuring out what is going on, and “the doctors, more importantly, would need that information as well”.

[28] Following that exchange, Officer Maxwell told Ms. Gittens again that the door was simply closed and that if she wanted to end the interview at any time, to let him know and he would facilitate that. He also told her that if she wanted a break for water, or just a break, that he would “facilitate that as best as [he could]”.

[29] Officer Wong then read Ms. Gittens what is often referred to as a “KGB” caution: R. v. B.(K.G.), [1993] 1 S.C.R. 740. He told her that she may be a witness at a trial concerning the events and that if “at that time” she recanted her statement, the statement may be used at the trial and she could be liable for prosecution. He warned her about fabricating evidence, obstructing justice and public mischief. Finally he told her that she was not obliged to give the statement and that if anyone had attempted to persuade her to give the statement, that she should disregard that persuasion and only give the statement if she freely chose to do so.

[30] Ms. Gittens responded by saying that while they kept saying she had a choice, “at the same time” if she did not give a statement, “it could be an issue, right?” Officer Wong responded that he was “not saying that it is an issue” but that no one was forcing her to give the statement, and that she had to make a decision in everyone’s best interest, like he mentioned “about Phoenix”. Once again, he told her that if at any point she wanted to end the statement, he was “more than happy to end it”.

[31] Officer Wong then asked her if she was prepared to give a videotape statement at that time. Ms. Gittens responded by saying, “…oh, ‘cause you guys are taping it… right? And if I say no?” After some further discussion, in which Ms. Gittens said that she hated video cameras, Officer Wong stated:

… this does not get shown to anybody else, right? Um, i.., it’s gonna be a, a police copy, it’s gonna be my copy so that one, I can reflect on (inaudible) with me and I can look over that stuff and I can have it-, I can refresh my memory on it right? It’s gonna assist me with my notes. Um, that’s one of the main reasons, right, because I ask things and I forget things after I’ve asked you them and then I can actually go back and take a look at it afterwards. Right? So it assists in that sense.

[32] Ms. Gittens then told Officer Wong that she was a bit emotional because of her son. She said “I don’t wanna leave him by himself, he’s all- it’s new- you know, he’s upstairs by himself, I’m just hoping he’s okay.”

[33] After canvassing with Ms. Gittens what she had been told about her son’s condition, Officer Wong told her that if a parent did not provide the necessaries of life, that from a “criminal perspective” that is when the police can get involved. That, he said, was part of the reason that they were talking to Ms. Gittens, to make sure that was not what was going on.

[34] Officer Wong then went on to say that if there were criminal charges, Ms. Gittens would have the right to call a lawyer, although he was not saying that they were going down that route. Officer Wong then said:

I’ll also let you know that while I’m talking with you, if you say anything to me where I think, um, it would basically incriminate yourself or where you would be held criminally liable for something…what I will do is I will stop… and I will let you know that you have your rights because I don’t want you to continue without consulting a lawyer.

[35] Officer Wong then gave as an example that if Ms. Gittens were to admit that she beat her son with a belt, that he would have a duty to stop her and tell her that she could not talk about anything else until she spoke to a lawyer “because of the fact that you’ve just basically implicated yourself in a criminal offence”, and he would then need to give Ms. Gittens her rights.

[36] Officer Wong then asked Ms. Gittens if she wanted to speak to a lawyer for any reason, and she said no. But she then said “[h]ow would i-, if I wanted the lawyer, do you have to call a lawyer? No, I’m just curious, I just like to ask questions”. As she did so, she gave a little laugh, which Ms. Gittens testified was nervous laughter. Officer Wong responded to her question by saying that if she had a lawyer, he could get in contact with that lawyer for her and if not, he could contact another lawyer for her. He then went to get her a glass of water.

[37] Upon his return, Officer Wong asked Ms. Gittens numerous questions about Phoenix’s day-to-day life. When he asked Ms. Gittens to draw the layout of their home, she said that she was not good at drawing.

[38] At another point, Officer Wong asked Ms. Gittens if she had any pictures of Phoenix. In response, Ms. Gittens took out her phone and scrolled through to show him and Ms. Maitland pictures. Ms. Gittens then asked if the other officers were still speaking with her husband, and Officer Wong left the room to check. He returned and said they were still talking to her husband. He then told her she could put away her phone, which she did.

[39] At one point, when Ms. Gittens said that they did not give Phoenix any dairy, Ms. Maitland asked if he had ever been checked to determine if he was lactose intolerant. Ms. Gittens said no and that she hoped that they would not hold that against her. Officer Wong responded, “…I don’t want you to think that we’re here judging you or anything like that, ‘cause we’re not” and that he did not want her to worry about that.

[40] As the interview progressed, Officer Wong became increasingly confrontational with Ms. Gittens. He told her that he was giving her the opportunity to tell him anything that could possibly have caused Phoenix’s injuries. He then told her that he wanted her to think about how the injuries could have happened and that he was going to give her “a little bit of a break… a little bit of a breather” while he went to get her water. He instructed her to think about it while he was gone, and to go through the past three months to think about anything that could “possibly reasonably explain” how Phoenix got his injuries.

[41] When Officer Wong returned with water, Ms. Gittens asked about her husband. Officer Wong left the room to check on him. When he did, Ms. Gittens asked Ms. Maitland if she could say hi to her husband. Ms. Maitland responded, “I think it’s better just to wait until we’re done.”

[42] After Officer Wong returned, he asked a few further questions about what caused Phoenix’s injuries and what she fed him. The interview then ended at 6:23 p.m.

f) The Interview with Mr. McCalla

[43] Officer Maxwell and Officer McLeod interviewed Mr. McCalla in a boardroom across the hall from the interview room in which Ms. Gittens’ interview took place. His interview started at approximately 4:32 p.m. and ended at 6:04 p.m.

[44] When Mr. McCalla was told at the outset that the interview would be videotaped, he asked if he had a choice whether to turn it on. Officer Maxwell explained that the video was so that the police could not put words in his mouth. Mr. McCalla responded by asking “do I have a say”, to which Officer McLeod replied that he did have say, just like he had a say “whether or not to even talk to us right now.” Mr. McCalla then asked, “[a]nd if I refuse to talk to you guys right now?” When Officer Maxwell told him he could do that, Mr. McCalla responded that “talking is not the issue” but rather, “it’s the camera”.

[45] After Officer Maxwell further explained why police wanted to use the camera, Mr. McCalla said, “but wouldn’t that be the same as me requesting a lawyer before I even say anything?” I note that I do not have the benefit of Mr. McCalla’s evidence to understand what he meant by this comment, which seemed unrelated to the topic being discussed. In any event, Officer Maxwell responded by telling Mr. McCalla that he was free to consult a lawyer if wanted to, and that he was “not allowed to trick” Mr. McCalla or “misrepresent the police intentions”. Officer Maxwell then reiterated that Mr. McCalla could speak to a lawyer if he wanted and if he would feel more comfortable doing so.

[46] Officer Maxwell then advised Mr. McCalla that he and Officer McLeod only dealt with criminal offences, which would include failure to provide the necessaries of life, for example, children who are malnourished or neglected by their parents. He told Mr. McCalla that “would be the most relevant right now for the police concern”.

[47] Officer Maxwell next told Mr. McCalla that whenever they spoke with someone “who could be in legal jeopardy”, if it turned out that that person spoke about things that are “criminal in nature”, that would mean that person could be arrested. At that point a “lawyer would be relevant”. Even when a lawyer is not relevant, however, he said that they had to read Mr. McCalla a “disclaimer”.

[48] Officer McLeod then specifically told Mr. McCalla that they were investigating whether there was any criminality, and in particular told him that they were investigating the allegation of failing to provide the necessaries of life. She then read him the primary caution, advising him that he was not obliged to say anything unless he wished to do so, but that whatever he said could be given in evidence. She further explained that the “main part” about why they cautioned people was to establish the truth and to ensure that the person they were interviewing was not lying to them.

[49] Officer Maxwell then told Mr. McCalla that he was not offering anything for the statement, that he was not trading anything and that he had not promised anything. He noted that he had just met Mr. McCalla five minutes ago and that he was being interviewed, along with his wife, to “find out more about Phoenix and his medical condition”.

[50] Officer Maxwell then told Mr. McCalla that Phoenix’s injuries and nutritional deficiencies were such that he could have passed away, so it was a good thing the parents had brought him in. Mr. McCalla responded that the medical staff had not made that known to them. Officer Maxwell then began to ask Mr. McCalla questions about Phoenix’s day-to-day life and how it was that he became injured.

[51] Later in the interview, Mr. McCalla said, “we are almost like suspects. And I mean, you’re not saying that, but the whole situation that’s how it’s looking right now”.

[52] After expressing how hard it was to be away from his son, Mr. McCalla then wondered when the interview would be over and when he would be able to see his son. Mr. McCalla then said that he fully understood how “the whole thing appear[ed]”, but expressed how hard it was to think of his child being taken away.

[53] Towards the end of the interview, Officer Maxwell asked Mr. McCalla about his thoughts on inviting the police into their home to see what it looked like. When Mr. McCalla responded that regardless of whether he invited the police in or not, they would probably get a warrant, Officer Maxwell said “[w]e could” and that they could also seal his house.

[54] Mr. McCalla then said that he wanted to know where Phoenix was and what the medical staff were doing to him, and expressed that the interview had taken a long time. He said he could not imagine what his son was going through, not seeing either one of his parents. At that, Officer Maxwell said that although they had closed the door, it was not locked. Mr. McCalla responded, “No, no, I’m not saying. No, I’m not implying…that you tried to hold my-,… No, I’m not saying that…. It’s just what I’m feeling right now, you know?” The interview ended shortly thereafter.

g) After the Interviews

[55] After the interviews, both Ms. Gittens and Mr. McCalla returned to their son’s bedside. The officers then met with Dr. Cory. Officer McLeod said that at this meeting, Dr. Cory told them that she did not believe that Phoenix would have been able to walk for at least one week before he came to the hospital. Although Dr. Cory had told them in the earlier briefing that she had doubts that Phoenix could reach the stairs, she had yet to examine him at that point. By the time of the second briefing, however, Dr. Cory had seen Phoenix. Officer McLeod said based on that, they felt that they had reasonable and probable grounds to arrest the parents.

[56] Officer Maxwell then met with Ms. Gittens and Mr. McCalla and told them that he now had the grounds to arrest them. Despite that, Ms. Gittens and Mr. McCalla were not arrested until June 2016.

[57] Later that day, Officer Maxwell prepared the Information to Obtain (ITO) a Search Warrant to search Ms. Gittens and Mr. McCalla’s home. He submitted the ITO at 9:30 a.m. on March 17.

[58] I turn now to my analysis regarding Ms. Gittens’ statement.

Analysis of Issues Regarding Ms. Gittens’ Statement

Issue One: Has the Crown proven beyond a reasonable doubt that Ms. Gittens’ statement was voluntary?

(a) General Principles

[59] In R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38, the Supreme Court noted that for statements made to a person in authority to be admissible, the Crown must establish beyond a reasonable doubt in light of all of the circumstances that the will of the defendant has not been overborne. The court should look to whether there have been any threats or inducements, oppressive circumstances or a lack of an operating mind. In addition, there must not be any police trickery that unfairly denies the defendant his or her right to silence. Oickle makes it clear that the proper approach to considering the admissibility of statements is to consider the above as factors that alone or in combination can result in a statement being ruled involuntary.

(b) Positions of the Parties

[60] Counsel for Ms. Gittens argues that the totality of the circumstances militate in favour of finding that her statement was involuntary. In particular, she argues that (1) Ms. Gittens was improperly pressured by medical staff to speak to the police; (2) the police comments about wanting to clear Ms. Gittens and her husband, along with the comments about the statement being in Phoenix’s best interests amounted to improper inducements; (3) Ms. Gittens did not have an operating mind as the police failed to properly caution her that whatever she said could be used in evidence against her and as Officer Wong specifically told her that the video was for his purposes only; and (4) Ms. Gittens was exhausted and emotional. Defence counsel argues that Ms. Gittens testified credibly that she felt that she had no choice but to speak with the police, and despite a lengthy and vigorous cross-examination, her evidence on this point was not shaken. The totality of the evidence should leave me with a reasonable doubt that the statement was voluntary.

[61] Crown counsel counters that that Ms. Gittens’ statement was clearly voluntary. She argues that Ms. Gittens’ evidence that she was pressured by medical staff to speak to the police is incredible, and that even if the staff did pressure her, they were not persons in authority. Ms. Gittens, she argues, chose to provide a statement as she wanted the police to know that she was a good parent. She points to the fact that Ms. Gittens was specifically told that she did not have to give the statement, and that she was twice told she could end the statement at any time. She notes that Officer Wong offered to get (and did get) Ms. Gittens water a number of times and that he and Ms. Maitland were kind to Ms. Gittens. If there were any inducements, they were not the kind of quid pro quo that would lead to exclusion of the evidence. Further, while Ms. Gittens was not given the primary caution, she was provided with a KGB caution, which would have brought home to her that the evidence she gave could be used in a prosecution. While Ms. Gittens may have been tired, she was not so exhausted that the voluntariness of the statement should be questioned.

(c) Analysis on Voluntariness

[62] Given the totality of the circumstances, I am left with a reasonable doubt as to whether Ms. Gittens’ statement was voluntary.

[63] In my view, two initial comments made by the officers to Ms. Gittens were problematic: (1) the comment by Officer Maxwell that the officers wanted to speak to Ms. Gittens in order to clear her; and (2) the comments made by both Officers Maxwell and Wong that speaking would be in Phoenix’s best interests. Officer Wong’s comments about the best interests of Phoenix were especially problematic, as Officer Wong explained to Ms. Gittens that her providing information to him was like speaking to a paramedic. He specifically told Ms. Gittens that the information she provided would be particularly helpful to the doctors. This, of course, was not the case. Officer Wong was not seeking medical information to assist the doctors, but instead was gathering information for a criminal investigation. I agree with defence counsel that both the comments about being cleared and speaking being in Phoenix’s bests interests can be seen as inducements. As Ms. Gittens testified, the comments made her feel as if she had no choice but to speak; if she did not, then she would not be cleared, which would mean she would be arrested and not be allowed to go back to her son’s bedside.

[64] That said, standing on their own, I would not find that the above two comments rendered the statement involuntary. As explained in Oickle, at para. 57, an effort by the police to convince a suspect to make an admission becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne.

[65] In Ms. Gittens’ case, however, the two comments do not stand on their own. The context here is important. Ms. Gittens had been in the hospital overnight with her very ill child. She was exhausted. She was emotional. At times she broke down in tears. It was clear from the video, and from the evidence of the officers, that she was worried about her son and wanted to be back by his side.

[66] The Crown argues that Ms. Gittens was not overly emotional, and in fact, appeared comfortable on the video. I cannot agree. In making this submission, the Crown asserts that Ms. Gittens felt comfortable taking out her phone and scrolling through it during the interview. But Ms. Gittens only took out the phone when asked if she had photos of her son. She scrolled through the phone to find and show the pictures. She put the phone away as soon as the officer told her to put it away. The Crown also argues that Ms. Gittens laughed a number of times during the interview, which shows that she felt comfortable. Ms. Gittens, however, testified that when she laughed, it was nervous laughter. Having watched the video a number of times, I accept Ms. Gittens’ evidence on this point. In my view, the video does not establish that Ms. Gittens was comfortable and at ease in the interview. Rather, the video supports her evidence that she was exhausted, devastated and lost. Her emotional and physical condition are factors of import when determining whether the statement was voluntary.

[67] Moreover, how Ms. Gittens wound up speaking with the police is also an important factor. Ms. Gittens knew that her son was in the hospital and that the situation was serious. She was told that the police had concerns. She was told that the police wanted to speak to her. Based on the evidence of Dr. Cory, it is likely that she was told that the police wanted to speak to her at the Suspected Child Abuse and Neglect unit. Given this context, it is not at all surprising that Ms. Gittens would feel pressured to speak to the police. While I agree with Crown counsel that this pressure was essentially internal, and did not flow directly from anything said or done by the police, that does not mean that it is an irrelevant consideration for the purposes of the voluntariness voir dire. Rather, in my view, it should be clear, as a matter of common sense and human experience, that a parent at a hospital with a sick and injured child who is asked to go to the Suspected Child Abuse and Neglect unit to speak with police because of concerns that the police have about their child would feel some pressure to speak. Thus, it is particularly important that when the police do meet with the parent that they scrupulously ensure that parent is given the appropriate information so that they understand their rights and their potential legal jeopardy.

[68] But here, Officer Wong failed to provide Ms. Gittens with essential information. Specifically, he failed to tell Ms. Gittens that whatever she said could be used in evidence against her. As noted in Oickle at para. 30, the confessions rule applies whenever a person in authority questions a suspect. While Officer Wong claimed that he did not provide this caution because Ms. Gittens was not a suspect, I had concerns about his evidence on this point. At the time that Officer Wong interviewed Ms. Gittens, he knew that Phoenix had severe nutritional deficiencies, that he was significantly underweight, that he had multiple fractures throughout his body in various stages of healing, and that the doctors felt that the information being provided by Ms. Gittens and Mr. McCalla was inconsistent with Phoenix’s injuries and physical condition. Officer Wong also knew that Ms. Gittens and Mr. McCalla were Phoenix’s primary caregivers. Despite this information, Officer Wong testified, twice, that he did not believe there was even a chance that Ms. Gittens would be facing any legal jeopardy. In my view, this testimony undermined his credibility, something that Officer Wong seemed to realize, as later in his evidence (after we had taken the lunch break), he sought to clarify and said he did not mean that there was no chance at all that Ms. Gittens would be facing legal jeopardy.

[69] I also find it difficult to accept the evidence of Officers McLeod and Maxwell that they did not consider Ms. Gittens and Mr. McCalla to be suspects. Officer McLeod had the same information as Officer Wong and had referred to Phoenix as a victim in her notes before she ever met with the parents. Officer Maxwell agreed that on the basis of the information he had before the interview, it was “getting close” to reasonable and probable grounds. Given that, it is difficult to accept that he did not then have, at a minimum, reasonable suspicion.

[70] In any event, as conceded by Crown counsel, the facts known to the police at the time the interview took place could be seen as objectively grounding a reasonable suspicion that Ms. Gittens was implicated in a crime in relation to her son Phoenix. I agree with this concession. Objectively there were both reasonable grounds to suspect that a crime had occurred and reasonable grounds to suspect that Ms. Gittens and Mr. McCalla were possibly implicated in that crime. That is, they were objectively suspects as the information known to the police at the time would objectively tend to implicate Ms. Gittens and Mr. McCalla in a crime, or would alert any reasonably competent investigator to the realistic potential that Ms. Gittens and Mr. McCalla had failed to provide the necessaries of life to Phoenix: R. v. Morrison, at para. 50; and R. v. Worrall, at para. 104.

[71] Given that Ms. Gittens was a suspect, she should have been cautioned that whatever she said to the police could be used in evidence against her. While the absence of a warning does not necessarily render a statement involuntary, it is a factor to consider, and in some cases, an important factor: Boudreau v. The King, [1949] S.C.R. 262, per Kerwin J. at p. 267; and R. v. Singh, 2007 SCC 48, at paras. 31-34. Given the context in Ms. Gittens’ case (where an exhausted and worried mother was asked to go to the Suspected Child Abuse and Neglect unit to speak to police about concerns they had about her son’s condition), in my view it was particularly important for the police to provide the proper caution.

[72] The Crown, however, argues that the failure to give a primary caution is not a significant factor in Ms. Gittens’ case, as Officer Wong provided her with a KGB caution. This, she argues, is similar to the situation in R. v. E.B., 2011 ONCA 194, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 455. There, the court held that while a standard caution was not given to the defendant, the KGB warning he was given would have brought home to him that he did not have to give the statement and that there were potential adverse consequences in so doing. Thus, the court found the statement to be voluntary despite the lack of a proper caution. In the same way, Crown counsel argues that since Ms. Gittens was provided with the KGB caution, she would have been aware of the potential consequences of giving the statement and chose to continue despite that.

[73] Ms. Gittens’ case, however, is distinguishable from that of E.B. in two important respects. First, Officer Wong also told Ms. Gittens that if she gave a videotaped statement, it would never be seen by anyone else; it was for his purposes only. This is an important factor when considering the impact of Officer Wong’s failure to caution Ms. Gittens that whatever she said could be used in evidence against her. Second, Officer Wong told Ms. Gittens that if she said anything that could possibly implicate herself, he would stop the interview and provide her with rights to counsel. The reassurance of Officer Wong to Ms. Gittens that he would stop her if she said anything incriminating, along with his pledge that he would not show the video to anyone else, makes the failure to tell Ms. Gittens that whatever she said could be used in evidence against her particularly problematic, especially when considering whether she had an operating mind.

[74] The operating mind requirement means that a defendant must know what he or she is saying and that he or she is saying it to a police officer who can use it to his or her detriment: Oickle, at para. 63. There is no dispute that Ms. Gittens knew what she was saying and that she was saying it to a police officer. But given the failure to tell Ms. Gittens that what she said could be used in evidence against her, along with Officer Wong’s comments that the video was for his purposes only and that if she said anything that could incriminate her that he would stop her, questions arise as to whether Ms. Gittens knew that what she said could be used to her detriment.

[75] Ms. Gittens testified that despite being told that she did not have to give a statement, she felt that she had no choice. Given the inducements offered, her emotional and physical condition when she gave the statement, the failure to provide a primary caution, the assurance that the video would not be shown to anyone and was just for Officer Wong’s purposes, and the comments that he would stop her if she said anything incriminating, I am left with a reasonable doubt as to the voluntariness of Ms. Gittens’ statement.

[76] Ms. Gittens’ statement is not admissible.

Issue Two: Did the police violate Ms. Gittens’ rights pursuant to ss. 10(a) and 10(b) of the Charter and, if so, should the evidence be excluded pursuant to s. 24(2)?

[77] Given my findings on voluntariness, it is not strictly necessary for me to consider the constitutional issues raised by defence counsel. That said, I will briefly consider the Charter issues.

(a) Section 10(a) of the Charter

[78] Section 10(a) of the Charter provides that the police must inform the person detained “promptly” of the reason for his or her detention. The Ontario Court of Appeal has determined that this means immediately: R. v. Kelly (1985), 7 O.A.C. 46 (C.A.); and R. v. Nguyen, 2008 ONCA 49, at paras. 16-22. It is clear that there are no technical requirements as to what a police officer needs to say to a detained person to discharge his or her s. 10(a) obligations. Rather, it is the substance of what the defendant can reasonably be supposed to have understood which must govern: see R. v. Roberts, 2018 ONCA 41, at para. 78; and R. v. Evans, [1991] 1 S.C.R. 869, at pp. 886-888. In my view, assuming for a moment that Ms. Gittens was detained, the information provided by the police would have brought home to her that the police were investigating her for potential crimes against Phoenix. Thus, Ms. Gittens’ s. 10(a) rights were not violated.

(b) Section 10(b) of the Charter

[79] Section 10(b) of the Charter provides that upon arrest or detention, everyone has the right “to retain and instruct counsel without delay and to be informed of that right”. Without delay means that the police must advise an individual of their right to retain and instruct counsel immediately upon arrest or detention, subject to legitimate concerns for officer or public safety: R. v. Suberu, 2009 SCC 33, at paras. 41-42; and R. v. McGuffie, 2016 ONCA 365 at para. 42.

[80] There is no dispute that if Ms. Gittens was detained, the police did not comply with their s. 10(b) obligations. The key question is whether Ms. Gittens was in fact detained. Crown counsel argues that Ms. Gittens was not detained. The door was not locked, and the police twice told Ms. Gittens it was not locked. Ms. Gittens was told that she could leave, and that she could end the statement at any time. Defence counsel counters that Ms. Gittens testified credibly that she felt detained. Defence counsel acknowledges that Ms. Gittens was told that she could leave, but argues that the context, along with a number of comments made by the officers, led Ms. Gittens to feel psychologically detained from the outset. Alternatively, defence counsel argues that as the interview progressed and became increasingly confrontational, Ms. Gittens became psychologically detained.

[81] In my view, given the clear comments at the outset of the interview that the door was unlocked, and that Ms. Gittens could leave at any time, she was not objectively detained from the outset. However, I find that a detention crystalized as the interview progressed and as Officer Wong became more confrontational and accusatorial. In making this finding, I keep in mind that despite telling Ms. Gittens that she could end the statement and that the door was unlocked, Officer Wong made comments that undermined this message. For example, Officer Wong told her that if she needed a break, he would “facilitate that as best” as he could. But if Ms. Gittens was free to leave, it would not be up to the officer to facilitate a break, rather, it would be in Ms. Gittens’ control. He also told her that the police “have to” make sure that nothing criminal was going on, which could suggest that Ms. Gittens would “have to” answer their questions. Further, when Ms. Gittens asked what would happen if she wanted a lawyer, Officer Wong responded that he could get in contact with that lawyer for her and if not, he could contact another lawyer for her. Again, this could send the message that Ms. Gittens was under the control of the police; they would contact her lawyer for her, she could not simply leave to contact the lawyer herself. Those comments, in combination with the increasingly focused and confrontational questions of Officer Wong, lead me to conclude that certainly by the time Officer Wong left the room and instructed Ms. Gittens to think about the past three months before he returned to question her further, she was psychologically detained.

[82] As noted above, there is no dispute that if Ms. Gittens was detained, that the police failed to comply with the informational requirements of s. 10(b). As a result, I turn now to the s. 24(2) analysis.

(c) Section 24(2) of the Charter

[83] Section 24(2) provides that evidence that was obtained in a manner that infringed or denied any Charter rights shall be excluded if its admission would bring the administration of justice into disrepute. While the Charter violation here only arose mid-way through the interview, the earlier part of the interview allowed Officer Wong to move seamlessly into the more confrontational approach that led to Ms. Gittens’ psychological detention. Thus, in my view there is a sufficient causal, temporal and contextual connection between the breach and the earlier part of the statement to consider the entire interview in the exclusion analysis: R. v. Pino, 2016 ONCA 389.

[84] The framework for the application of s. 24(2) was set out by the Supreme Court in R. v. Grant, 2009 SCC 32. The court must consider three lines of inquiry: i) the seriousness of the Charter-infringing state conduct; ii) the impact on the Charter-protected interests of the defendant; and iii) society’s interest in an adjudication on the merits.

[85] In my view, the Charter-infringing state conduct was serious. Ms. Gittens was detained and in need of legal advice. Officer Wong purposefully left Ms. Gittens with the impression that if she said anything incriminating, he would stop her and provide her with her rights to counsel. Yet even as he questioned her in an increasingly focused and confrontational way, he failed to advise her of her rights.

[86] Moreover, the impact on Ms. Gittens’ Charter-protected interests was significant. Without being properly advised of her rights, she provided a statement which could incriminate her in a serious criminal matter. As noted recently by the Court of Appeal in R. v. Fountain, 2017 ONCA 596, at para. 61, statements obtained in violation of the right to counsel will generally be excluded: see also Grant, at paras. 95-96.

[87] Finally, if Ms. Gittens’ statement is excluded, the trial will still proceed: society’s interest in an adjudication on the merits will thus be met. Moreover, the first two branches of the Grant inquiry favour exclusion. As explained by Doherty J. in McGuffie at para. 63, “If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility.”

[88] Thus, balancing the three considerations in Grant, I find that Ms. Gittens’ statement should be excluded pursuant to s. 24(2) of the Charter, as its admission would bring the administration of justice into disrepute.

[89] I turn now to an assessment of Mr. McCalla’s statement.

Analysis of Issues Regarding Mr. McCalla’s Statement

Issue One: Has the Crown established beyond a reasonable doubt that Mr. McCalla’s statement was voluntary?

[90] The Crown argues that she has established beyond a reasonable doubt that Mr. McCalla’s statement was voluntary. She notes that the officer were polite and respectful; the questioning never became confrontational or accusatorial. She highlights that the police told Mr. McCalla three times that he did not have to give a statement and that the door was unlocked. Mr. McCalla was also advised twice that he could consult a lawyer. Officer Maxwell specifically told Mr. McCalla that he was not offering, trading, or promising anything in exchange for the statement. The police provided the primary caution, and it was clear that Mr. McCalla understood his potential legal jeopardy. Looking at the totality of the evidence, there is no basis to suggest that Mr. McCalla’s will was overborne.

[91] Counsel for Mr. McCalla counters that Officer Maxwell offered two powerful inducements. First, by saying that the police wanted to “clear” him and second, by saying that speaking to them was in Phoenix’s best interests. As discussed above, I agree that the comments could be viewed as inducements, but on their own they are not sufficient to raise a reasonable doubt as to voluntariness.

[92] Counsel for Mr. McCalla also argues that he was emotional, exhausted and felt pressured to speak with the police. Crown counsel counters that Mr. McCalla did not testify and thus I have no evidence to support this submission. But as with Ms. Gittens, as a matter of common sense and human experience, I have no doubt that Mr. McCalla felt some internal pressure to speak to the police when told that they wanted to speak with him about concerns regarding his son. Further, having viewed the video statement it seems clear to me that Mr. McCalla was tired and upset. At the same time, it also seems clear that he was not so distraught or fatigued that he did not have an operating mind. Nor does the video support that there was an atmosphere of oppression.

[93] Finally, counsel for Mr. McCalla argues that the police failed to provide the appropriate information so that Mr. McCalla understood his potential legal jeopardy. The police had reasonable and probable grounds to arrest Mr. McCalla, he argues, yet they failed to advise him of that, or even that he was a suspect. He also notes that while the police told Mr. McCalla that he was not obliged to say anything, but that whatever he said could be used in evidence, they failed to say that the evidence could be used “against him”. Given that Mr. McCalla was not properly advised of his potential legal jeopardy or rights, defence counsel asserts he did not have an operating mind.

[94] I am unable to accept this argument. Even if the police had reasonable and probable grounds, they were not obligated to arrest before questioning Mr. McCalla; rather, they were required to provide Mr. McCalla with the necessary information for him to make a meaningful choice as to whether or not to speak to the police. In my view, they did so. The police clearly advised Mr. McCalla that they were investigating the offence of failing to provide the necessaries of life. It seemed clear from the video that Mr. McCalla understood that he could be in legal jeopardy. Mr. McCalla said that he felt that he was being treated almost as a suspect. He told the police he knew how things appeared, from which I took that Mr. McCalla knew that the police believed that he may be criminally implicated in his son’s medical condition. Of note, I have no testimony from Mr. McCalla to suggest that despite how it seems on the video, he did not actually understand he could be in legal jeopardy. Further, while Officer McLeod did not specifically say that the evidence could be used “against” Mr. McCalla, it was clear from the context that it could be so used. Similar to the case of E.B., in my view the police clearly brought home to Mr. McCalla that he did not have to give the statement and that there were potential adverse consequences if he did so.

[95] Mr. McCalla was told repeatedly that he did not have to say anything. Officer Maxwell made clear that they were not “offering” or “trading” anything for the statement. The comments made by Mr. McCalla on the video suggest that he understood that he had a choice. And of import, I have no evidence from Mr. McCalla that despite the clear comments of the police, he felt that he had no choice.

[96] Thus, looking at the evidence in its totality, I find that the Crown has established beyond a reasonable doubt that Mr. McCalla’s statement was voluntary.

Issue Two: Did the police violate Mr. McCalla’s rights pursuant to ss. 10(a) and 10(b) of the Charter and, if so, should the evidence be excluded pursuant to s. 24(2)?

[97] As with Ms. Gittens, assuming that Mr. McCalla was detained, I find that the police provided him with sufficient information to meet their s. 10(a) obligations. Indeed, Officer McLeod specifically told Mr. McCalla that they were investigating the allegation of failing to provide the necessaries of life.

[98] I also find that Mr. McCalla was not detained at any point in his interview. He was told from the outset that the door was unlocked and that he could leave at any time. The police told him that a number of times. The police did not subtly undermine that message in the same way that they did with Ms. Gittens. Moreover, unlike Ms. Gittens, the questions never became accusatorial and confrontational.

[99] At the end of the interview, when Officer Maxwell reminded Mr. McCalla that the door was unlocked, Mr. McCalla responded that he was not “implying” that the police “tried to hold my –“, which I viewed as an acknowledgment that Mr. McCalla knew that he had been free to leave the interview, but did not.

[100] Mr. McCalla did not testify that he felt detained at any point. Given the totality of the evidence, I am unable to find on a balance of probabilities that Mr. McCalla was detained. As a result, Mr. McCalla has failed to establish that the police violated his rights pursuant to s. 10(b).

Conclusion

[101] The Crown has failed to establish beyond a reasonable doubt that Ms. Gittens’ statement was voluntary. Further, the defence has established on a balance of probabilities that Ms. Gittens rights pursuant to s. 10(b) of the Charter were violated and that the statement should be excluded pursuant to s. 24(2) as its admission would bring the administration of justice into disrepute.

[102] The Crown has established beyond a reasonable doubt that Mr. McCalla’s statement was voluntary. Further, I am not satisfied that Mr. McCalla was detained, and thus the defence has failed to establish that his Charter rights were infringed. As a result, subject to a defence argument that the statement should be excluded because it has no probative value, which both sides agree should be heard at a later date, Mr. McCalla’s statement is admissible.

Justice Heather McArthur Date: May 31, 2019