Court File and Parties
COURT FILE NO.: CR-18-000155 DATE: 20191220
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SONNY BROKENSHIRE Defendant
COUNSEL: Michael Flosman and Sarah Sullivan, for the Crown Margaret Wyszomierska and Allison Lee, for the Defendant
HEARD: August 26, 27, and 28, 2019
REASONS FOR DECISION
1Mr. Brokenshire is charged with first degree murder in relation to the death of Joseph Simonds on or about June 4, 2017. There are two co-accused, Martin Forget and Brian Quesnel. A jury trial is scheduled to commence on February 2, 2020.
2These Reasons deal with two pre-trial motions that were heard together in a blended fashion. In the first motion, the Crown seeks a voluntariness determination in relation to a video recorded statement made by Mr. Brokenshire to police on June 7, 2017. In the second motion, the defence seeks to exclude the statement on Charter grounds, particularly sections 10(a) and (b), and section 7.
3In terms of voluntariness, I note at the outset that the Crown bears the onus of proving voluntariness beyond a reasonable doubt. If the Crown fails to meet this burden, the statement is inadmissible for any purpose.
4On the Charter issues, the defence bears the burden of demonstrating on a balance of probabilities that the police violated Mr. Brokenshire’s rights in taking the statement. If successful, the defence bears the further onus under section 24(2) of the Charter of demonstrating that the admission of the statement will bring the administration of justice into disrepute.
Background to Alleged Homicide
5On June 4, 2017, at approximately 3:50 a.m., police were called to a residence in Orillia and were advised that a male at the residence had been shot. Upon arrival, police observed a male lying on his back in the living room of the apartment with an apparent gunshot wound to the chest. The male, who was later identified as Joseph Simonds, was taken to hospital where he was pronounced dead.
6Ms. Bionca Jeffries, Mr. Simonds’ girlfriend, gave a statement to police wherein she advised that she and Mr. Simonds were sitting on the couch, when she observed lights from a car on their driveway. There was a knock at the door, which Mr. Simonds answered though no one appeared to be there. Moments later, a gunshot was heard and Mr. Simonds struggled back from the doorway and fell to the floor in the living room.
7The police investigation revealed that the deceased was in an earlier relationship with a woman named Brandie Lalonde. The deceased and Ms. Lalonde had a child. Ms. Lalonde also had a child with the accused, Mr. Brokenshire.
8Police also learned that an allegation of sexual assault had been made in Quebec against Mr. Simonds. The allegation was that he had sexually assaulted Mr. Brokenshire’s child. Police were advised that Mr. Brokenshire and Mr. Simonds engaged in a Facebook exchange over the allegations of sexual assault. This exchange was believed to have occurred on the night of the murder, though there is some uncertainty as to when the exchange actually took place.
9Mr. Forget, a co-accused, is Ms. Lalonde’s step-father. He is connected to a vehicle, a black Chrysler 300, alleged to be the vehicle that was seen leaving the scene of the shooting. The police investigation revealed that Mr. Brokenshire was picked up at his residence in a black, four door car, on the night of the homicide.
10Further police investigation revealed two witnesses, Nicole Pinto and Jessica Henry, who claimed knowledge that the shooting had been planned in advance. Ms. Henry indicated that Mr. Brokenshire eventually admitted a role in the shooting.
11On June 7, 2017, Mr. Brokenshire was visited at his home by police officers who invited him to go to the police station to discuss Mr. Simonds’ death. Once at the station, Mr. Brokenshire provided a statement essentially broken into three segments. The first segment started at 22:16 and continued into the morning hours of June 8, 2017, ending with Mr. Brokenshire’s arrest for murder at approximately 2:22 a.m. In this portion of the statement, Mr. Brokenshire eventually admits his presence at the scene of the shooting but denies any other involvement. He indicates that he went with Mr. Forget to Mr. Simonds’ home “to talk.” However, Mr. Simonds was not up for talking so he “walked away.”
12The second segment of the statement runs from 2:24 a.m. to 3:44 a.m. In this segment, Mr. Brokenshire mainly refuses to speak, though the interviewing officer employs a number of suggestive techniques to prompt further statements. The interview ends without any further inculpatory comments and Mr. Brokenshire is escorted to a cell. The Crown acknowledges that there is no evidentiary value to the second segment of the statement.
13The third segment commences later that morning, at approximately 10:14 a.m., and ends at 11:29 a.m. In this portion of the statement, the interviewing officer presses Mr. Brokenshire who makes further admissions including that he brought a baseball bat to the deceased’s residence.
Evidence on the Voir Dire
14On the voir dire, I received a transcribed copy of Mr. Brokenshire’s statement as well as the video. I heard viva voce evidence from Det. Sgt. Jennifer Van Allen who conducted the interview of Mr. Brokenshire, and also Det. Cst. Mark Stadig who was assigned to assist her. I also received an agreed statement of fact regarding the evidence of a jail guard and an excerpt of the preliminary inquiry evidence of Jessica Henry. A summary of the relevant evidence follows.
15On June 7, 2017, Det. Sgt. Van Allen became involved in the investigation into Mr. Simonds’ death. She was tasked to conduct a cautioned interview of Mr. Brokenshire who was at the time a possible suspect and, at the very least, a potential witness to the murder. She was provided some basic background information including the fact that Mr. Brokenshire was 20 years of age, had no adult criminal record and had a few minor run-ins with the law. She was aware that there had been an investigation into a sexual assault allegation against Mr. Simonds in relation to Mr. Brokenshire’s daughter. She was also aware of certain Facebook posts which police believed were between Mr. Brokenshire and the deceased on the night of the shooting. In these posts, Mr. Brokenshire calls Mr. Simonds a “diddler.” She also learned that the deceased’s mother reported that her son and Mr. Brokenshire were “beefing” and that Mr. Brokenshire wanted to meet him to fight.
16At approximately 20:30, after collecting and reviewing background information, Det. Sgt. Van Allen and her partner Det. Cst. Stadig went to the home where Mr. Brokenshire was staying. They knocked on the door and were greeted Stacey Pinto, who is Nicole Pinto’s mother. Nicole Pinto was Mr. Brokenshire’s girlfriend at the time.
17Police learned that Mr. Brokenshire was not home, but they then saw him walking up the driveway holding a fast food bag. They identified themselves as police officers and engaged Mr. Brokenshire in discussion. They indicated they wanted to speak with him about Mr. Simonds’ death and asked whether he was prepared to make a statement. Mr. Brokenshire asked if he could give a statement “on the driveway”, and he was told that it had to be done at the station so that it could be formally video recorded. Mr. Brokenshire acknowledged he was aware of Mr. Simonds’ death and expressed shock when the topic was mentioned by the police officers. He was not told at this time that he was a suspect in the murder.
18The officers let Mr. Brokenshire enter his home as he indicated he wanted to drop off the food he had with him. A few minutes later, he came back outside and spoke to the police officers through the driver’s side window of the police vehicle. He asked if he was being charged, and he was advised that he was not being charged and was not being detained. He was also advised that he could contact a lawyer and that this would be further explained once at the station.
19Mr. Brokenshire indicated that he had to drop off some rent money at a new residence that he was moving into. The officers indicated that he could do so and they offered to drive him to the location. Mr. Brokenshire asked if he could give the statement another time, and the officers indicated that he would be doing them a favour on a very serious case if he went with them to the police station to do the interview.
20At that point, Mr. Brokenshire agreed to accompany the officers to the station and he entered the police vehicle. From that stage forward, the interaction with police was either audio or video recorded.
21During the drive over to the police station, police stopped near an apartment at the request of Mr. Brokenshire. He exited the vehicle and walked over to the apartment, returning to the police car approximately fifteen minutes later. They next proceeded to two fast food restaurants and eventually arrived at the OPP station in Barrie. While the OPP station in Orillia was closer to their original location, there was a power outage at that station and it could not be used for the statement.
22Upon arrival at the Barrie OPP station, Mr. Brokenshire asked if he could have a cigarette. He remained outside alone while Det. Sgt. Van Allen and Det. Cst. Stadig went inside to set up for the interview. Once they were ready, Det. Sgt. Van Allen went outside and escorted Mr. Brokenshire into the station through the main doors. He was placed in an interview room and the video recorded statement commenced. The interview starts at approximately 22:16 hours.
23At the outset of the interview, Det. Sgt. Van Allen asks Mr. Brokenshire to confirm his understanding as to why he is at the station. He indicates that it is in relation to the investigation of Mr. Simonds’ murder. She next asks Mr. Brokenshire if he understands his rights and Mr. Brokenshire indicates that he has the right to remain silent.
24Det. Sgt. Van Allen tells Mr. Brokenshire that “we all have” the same rights under the Charter, and that anytime someone is under arrest or detention they have the right to a lawyer. She then indicates that he is not under arrest and is not under detention. Mr. Brokenshire confirms his understanding that he is not under arrest or being detained, and Det. Sgt. Van Allen indicates that the door to the interview room is closed for privacy, but it is unlocked and he is free to leave at any time. She also indicates that despite not being under arrest or detained, Mr. Brokenshire is free to consult counsel if he so wishes. He declines the offer.
25Mr. Brokenshire is cautioned that if any evidence arises or if he says something that implicates him in Mr. Simonds’ death, he could be charged with a criminal offence including murder. Mr. Brokenshire indicates that he understands. Det. Sgt. Van Allen then askes whether in view of this caution, Mr. Brokenshire wishes to speak with counsel. He again declines. He is advised that if he changes his mind at any time, he will be provided with access to counsel in private. Mr. Brokenshire responds by asking whether requesting counsel would “make it worse on me?” Det. Sgt. Van Allen indicates that she is not sure what he means by this question, but that if he changes his mind and wishes to speak to counsel at any time, he can ask.
26Det. Sgt. Van Allen then returns to the issue of detention. In response to a question about how long the interview will take, she indicates that it will take more than an hour but indicates that she is not forcing him to stay in the interview room and the door to the interview room is not locked.
27Det. Sgt. Van Allen completes this portion of the interview by asking Mr. Brokenshire to explain in his own words what he understands about the right to counsel and the caution. Mr. Brokenshire indicates that he knows he can speak to a lawyer “at any time that I want to.” He further indicates that he is “voluntarily allowed to walk out if needed to be.” Lastly, he confirms his understanding that anything he says could be used against him, and that anything said to him by other officers prior to the statement should not compel him to speak.
28Against that backdrop, the interview starts with Det. Sgt. Van Allen canvassing Mr. Brokenshire’s personal background. She is told that he is on ADHD medications and takes medications for anxiety and stress. He also indicates that he has arthritis and uses marijuana for medicinal purposes. Mr. Brokenshire also discusses his family background including where he grew up, his relationship with his mother and her boyfriends, his relationship with his brother and his relationship with his girlfriend.
29The tone of this portion of the interview is open and friendly. The officer is obviously attempting to build a rapport with Mr. Brokenshire and on a number of occasions offers positive comments to encourage further discussion. Mr. Brokenshire is engaged and forthcoming. He demonstrates no reticence and indeed carries most of the conversation. This portion of the interview lasts approximately 45 minutes, from 22:30 to 23:16.
30Det. Sgt. Van Allen then signals that she is changing the topic to discuss Joe Simonds’ death and she directly asks Mr. Brokenshire whether he killed him. Mr. Brokenshire denies killing him and further denies knowing who killed him. In asking this question, Det. Sgt. Van Allen cautions Mr. Brokenshire that depending on his answers, he might be charged with a criminal offence. She also explains that a person might be involved in a murder in a number of different ways, including actually committing the murder or even disposing of evidence after the fact.
31During this portion of the interview, starting at approximately 23:20, Det. Sgt. Van Allen focusses on the time frame immediately preceding the murder, and she asks Mr. Brokenshire to recount what he was doing during the time leading up to Mr. Simonds’ death. Mr. Brokenshire engages with Det. Sgt. Van Allen and readily provides a detailed narrative of events.
32When asked about Joe Simonds, Mr. Brokenshire indicates that he has an animus against him and then offers a long, detailed explanation as to why. The answer covers almost six pages of transcript. The conversation continues with Det. Sgt. Van Allen exploring the nature and extent of Mr. Brokenshire’s relationship with Mr. Simonds. The tone of this portion of the interview is not confrontational. Mr. Brokenshire is engaged and is openly answering all questions asked. The discussion turns to the Facebook posts and Mr. Brokenshire acknowledges that he engaged Mr. Simonds in an exchange on Facebook, though he indicates that the exchange occurred a week prior.
33As the interview continues, Det. Sgt. Van Allen begins using some techniques to steer the conversation and prompt admissions. She tells Mr. Brokenshire that the police will obtain information from Facebook that will show who he has been communicating with and when. The discussion prompts Mr. Brokenshire to indicate that he learned of Mr. Simonds’ death through Facebook.
34At 00:38:03 hours, Det. Sgt. Van Allen asks Mr. Brokenshire, “What do you think happened to Joe?” He indicates that he doesn’t know but can think of a few scenarios. He further indicates that he heard through friends that Mr. Simonds had been shot. He indicates that the killing could have been a “set up” or could have been “random.”
35At 00:58:48, the tone of the interview starts to shift. Det. Sgt. Van Allen directly asks Mr. Brokenshire “…tell me why you’re not the person that killed Joe.” In response, Mr. Brokenshire maintains his denial of any involvement. A few minutes later, Det. Sgt. Van Allen asks Mr. Brokenshire what he thinks should happen to the person who killed Mr. Simonds. She then builds on certain themes, including the fact that Mr. Simonds was not a nice person who had many enemies, and that Mr. Brokenshire is a “protector” of his children and family. She also continues to tell Mr. Brokenshire how the police are collecting surveillance video and how they have facial recognition software that allows them to recognize faces on those videos. She tells Mr. Brokenshire that police will be analysing computer and cell phone data. She indicates that she does not want something he says to later be contradicted by what the police discover and she implores him to be honest. She then suggests a polygraph test, ostensibly for the purpose of ruling Mr. Brokenshire out “100%.” Mr. Brokenshire demurs, though ultimately suggests that he will “consider it.”
36At 1:28:20, Mr. Brokenshire asks if he can go for a smoke. Det. Sgt. Van Allen says yes, but then offers to let him smoke in the interview room. In her evidence before me, Det. Sgt. Van Allen explained that her portable audio recorder was not working and she wanted to maintain a record of her interaction with Mr. Brokenshire so she decided to let him smoke in the interview room which was being videotaped.
37Shortly thereafter, Det. Sgt. Van Allen leaves the interview room for approximately five minutes. While out of the interview room, she is advised that the police have interviewed Nicole Pinto who has revealed that Mr. Brokenshire was picked up in a black car on the evening of the murder. This revelation is significant as police believed that the co-accused, Martin Forget, was linked to a black vehicle and a black vehicle was seen at the scene of the murder.
38Once Det. Sgt. Van Allen returns to the interview room, the tone of the interview becomes more confrontational. She reminds Mr. Brokenshire of the importance of telling the truth. She then asks him to again go over the details of his whereabouts on the weekend of the murder. During this portion of the interview, Det. Sgt. Van Allen suggests to Mr. Brokenshire that she has more information than she is revealing, and that some of the information contradicts the version of events he is proffering. Specifically, she indicates that she has information suggesting that Mr. Brokenshire left in a black car on the night of the murder. Shortly after 1:50:47, Det. Sgt. Van Allen directly confronts Mr. Brokenshire about the black car and indicates that his failure to mention the black car “is a problem.” She urges him to tell the truth and says “we have to answer this problem.”
39Mr. Brokenshire responds by suggesting that his “weed guy” drives a black car and that he was in that car over the weekend. The officer suggests he is not being truthful and she continues to confront him. She tells Mr. Brokenshire that she is trying to help him, that he has been treading water and now it appears that he is sinking. She accuses him of changing his story.
40At approximately 2:00:00, Det. Sgt. Van Allen directly confronts Mr. Brokenshire stating that she believes he saw Mr. Simonds on the night of his death, and she invokes the moral play of Mr. Brokenshire being a “protector” who would have wanted to protect his daughter who had been allegedly abused by Mr. Simonds. She indicates that she does not believe he is a “bad person”, though she believes that he is being untruthful. This portion of the interview culminates with Det. Sgt. Van Allen indicating “…so this is the chance right now for you to tell me exactly what happened…” She then suggests a possible theory that Mr. Brokenshire and others went to Mr. Simonds’ house to scare him but with no intention of hurting him.
41At this point, Mr. Brokenshire admits that he “maybe” knocked on the door and walked away. Det. Sgt. Van Allen, then tells Mr. Brokenshire that the whole story is going to come out. She then states, “…so if there’s an explanation for why you were at Joe’s I need to know it now because otherwise after today you have no credibility, because this is the only opportunity…that I could sit you down…”
42Mr. Brokenshire admits that he went to Mr. Simonds’ home. His intention was to speak to Mr. Simonds about the issues relating to the alleged sexual assault on his daughter. He indicated that he saw Mr. Simonds and walked away. Mr. Brokenshire denies that Martin Forget fired the gun that killed Mr. Simonds. He denies knowing that Mr. Forget and the third person intended to harm Mr. Simonds. When Det. Sgt. Van Allen asks if he saw Mr. Simonds get shot he says “no”, but agrees that he was “in the area.” He also indicates that the shot “scared the shit” out of him.
43At 2:09:14, Det. Sgt Van Allen indicates that based on what Mr. Brokenshire just stated, he is no longer free to leave. He replies “I thought that was going to happen.” Despite the detention, Det. Sgt. Van Allen continues the interview. Mr. Brokenshire re-iterates that all he did was knock on the door and walk away. Det Sgt. Van Allen explains that he is being detained for “accessory to murder” and potentially as a “party to murder.” Shortly after 2:11:25, Det. Sgt. Van Allen asks whether Mr. Brokenshire now wishes to speak to counsel.
44Det. Sgt. Van Allen steps out of the interview room for approximately two minutes and when she returns, she tells Mr. Brokenshire that he is under arrest for murder. He is provided his right to counsel and indicates that wants to speak with Neils Peterson. Det. Sgt. Van Allen then undertakes efforts to locate his counsel of choice. This portion of the interview ends at approximately 2:22:33.
45The next portion of the interview commences at 2:25:56 and lasts until 3:44:52. The Crown concedes that there is no evidentiary value to this portion of the interview other than completing the record on the voir dire. During this portion of the interview, Det. Sgt. Van Allen explains her efforts to locate Mr. Peterson. She also advises Mr. Brokenshire that he can speak with duty counsel and arrangements are made for that consultation. Following consultation with duty counsel, Det. Sgt. Van Allen implores Mr. Brokenshire to tell her the “whole story.” She tells him that he is in a “tough spot”, and also tells him if he doesn’t tell her what happened she will have to piece it together from other sources.
46At approximately 3:21:31, Det. Sgt. Van Allen tells Mr. Brokenshire “…after today, like I said, I don’t have a chance to get the truth anymore, okay? And I know…I know there’s more to the story….”
47At approximately 3:23:22, Det. Sgt Van Allen states “And so this is my last plea to you to say I’m here to listen to anything that you wanna tell me because I know that you’re not in this by yourself.”
48Det. Sgt. Van Allen continues to press Mr. Brokenshire. She tells him that in murder cases, loyalty goes out the window and “its every man for themselves.” She then states “that’s why I’m here in this room and this is your chance to tell me exactly what your involvement was, okay? Because I don’t…I wanna get the truth about what it was and I don’t want anyone to paint you with a brush of anything that you didn’t do….”
49Mr. Brokenshire indicates that “legally” he can’t say anything. Det. Sgt Van Allen tells him that “legally” he can say what he wants, its not “against the law” and its his decision. When Mr. Brokenshire is reminded that he is under arrest for murder, he replies “I am, I’m already in exactly where I thought I was gonna be in this situation.”
50Det. Sgt. Van Allen continues to press Mr. Brokenshire for more details about what happened at the scene of the murder. She tells him that she has never believed that he was the one who pulled the trigger. She then states as follows:
I’m not here to put words in your mouth, okay? But you need to think about yourself and you need to think about your daughter because when this comes out in court down the road this is your only opportunity to be credible and tell the…tell the truth of what actually happened. And if you got dragged into this or you got pulled into it or whatever the story is, now is the time that we need to deal with that and we can do that, I’m here talking to you because I want us to cross that bridge and get the whole story out, but now is the only time we can do that, and after we walk outta this room its gone, okay? And those two guys are not gonna protect you when they’re sitting in a chair…arrested for murder. [Emphasis added]
51At 3:32:30, Det. Sgt. Van Allen, then says the following:
Is all up to you, it is. I mean things…things can change. And…well not cha--…they…they…the change in that the story of what actually occurred, okay? And you’re under arrest and…and, yes, that’s not going to change right now, but the whole thing is when I walk outta here whatever you have decided not to tell me, the portion of the story you’ve told…decided not to tell is gonna get told for you, okay. It’s gonna get told through Martin, its gonna get told through the other guy and you and I both know who he is, its gonna get told through all the evidence, its gonna get told through everything that’s coming from search warrants that’s coming down the pipes, and that’s gonna -- . And you know what I’m gonna have to assume because you are not telling me otherwise, I’m going to have to assume that maybe this was your idea to begin with and maybe you planned this and you brought those other --. “Cuz maybe that’s what they’re gonna say and you decided not to tell me otherwise today. So you need to think about that. Being arrested for murder is one thing, but when it comes out and it looks like you’re the one that planned this whole thing, unless you tell me otherwise, Sonny, you need to understand that that’s how this is gonna look…So if that’s how you want it to go down, that’s your choice, its your life man. [Emphasis added]
52At approximately 3:35:29, Det. Sgt. Van Allen exits the interview room and shortly thereafter, another police officer enters the interview room to search Mr. Brokenshire before he is lodged in a cell for the balance of the evening.
53The following morning at approximately 10:14:53, Det. Sgt. Van Allen has Mr. Brokenshire brought back into the interview room and she resumes taking a statement. At the outset of this portion of the interview, Mr. Brokenshire is provided a blanket after he indicates that he is cold and has not slept well.
54This portion of the interview commences with Mr. Brokenshire being reminded that he is under arrest for murder and that “nothing has changed since you and I last spoke.” He confirms that he has spoken with a lawyer and that he is satisfied with the advice. Det. Sgt. Van Allen again tells Mr. Brokenshire that this is the last opportunity for her to get his side of the story and she cautions him that others will be telling their side of the story. She indicates that she wants to give him one more chance because it will be “important down the road.”
55At approximately 10:29:13, Det. Sgt. Van Allen asks Mr. Brokenshire what his co-accused Martin Forget told him. Mr. Brokenshire offers a few details but then indicates that “there’s nothing else I can give you.” Det. Sgt. Van Allen continues to ask Mr. Brokenshire about the murder and his role in it. Mr. Brokenshire admits that he went with Martin Forget and a third individual to Mr. Simonds’ home. He admits that he went and knocked on the door and heard a gun shot. He maintains that the gun shot was a surprise, as he did not go there with the intent or knowledge that Mr. Simonds was going to be shot. He also maintains that after he knocked on the door and exchanged some words with Mr. Simonds, he walked away and did not see what happened next.
56Mr. Brokenshire explains that he had his own reasons for confronting Mr. Simonds relating to the allegations involving his daughter. While he admits that he brought a baseball bat “for insurance purposes”, he explains that he left it in the car and did not have it in his hands when he knocked on the door.
57At approximately 10:58:13, after the admissions are made, Det. Sgt. Van Allen tells Mr. Brokenshire, “…at least you’re walking outta here with a lot more credibility than most people. I mean most people…I mean you manned up, right…and that’s a big thing”.
58At approximately 11:09:32, Mr. Brokenshire asks Det. Sgt. Van Allen for her opinion on how the case will go. She explains that in her opinion, bail does not usually occur right away and that he should not have any false hopes. She then returns to the theme of credibility and tells Mr. Brokenshire again, that “today…like last night” is the only time “you are going to have credibility.” She then continues to question him about details regarding the third person involved in the shooting. Mr. Brokenshire provides some further, relatively vague details, and re-iterates that he did not pull the trigger and further that he had no intention of killing Mr. Simonds. The interview ends at approximately 11:29:29.
Voluntariness
59In R. v. Oickle, 2000 SCC 38, [2000] 2 SCR 3, the Supreme Court of Canada confirmed that a confession will not be admissible if it is made in circumstances that leave a reasonable doubt as to voluntariness. In assessing whether a statement is voluntary, the relevant factors include threats, promises or other improper inducements, oppression, the lack of an operating mind and police trickery.
60In R. v. Singh, 2007 SCC 48, [2007] 3 SCR 405, the Supreme Court noted that the confessions rule encompasses the right to silence, meaning the right of the accused person to make a meaningful choice about whether or not to speak to the police. The focus of the assessment is on the conduct of the police and its effect on the accused’s choice. The test is objective, but the accused’s individual characteristics are a relevant consideration. Police persistence in the face of repeated assertions of the right to silence may give rise to real concerns about the voluntariness of a statement.
61The right to silence does not extend to the right not to be spoken to by authorities, nor does the right to silence prohibit questions. Indeed, police persuasion which falls short of denying the accused the right to choose whether to speak does not breach the right to silence.
62The analysis is contextual and there are no hard and fast rules as to what will render a statement involuntary. The totality of the circumstances, including the particularities of the accused, must be considered. In this regard, it is to be remembered that the onus of proving voluntariness rests entirely with the Crown beyond a reasonable doubt. The accused is not obligated to call any evidence, and the presence of a reasonable doubt on voluntariness renders the statement inadmissible. Ultimately, in order for the statement to be admissible for any purpose, I must be sure that it is voluntary.
63In determining whether a statement is voluntary, the presence or absence of a caution is one factor to be considered. There is no mandatory requirement that a caution be given. Similarly, the police are not required in all cases to advise a person that he or she is a suspect, see R. v. Campbell, [2018] ONCA 837, R. v. Pepping, 2016 ONCA 809 at paras. 4-5 and R. v. Pearson, 2017 ONCA 389 at para. 19. However, depending on the circumstances of the case, the failure to accurately caution a person including their status as a suspect may be a significant factor in relation to voluntariness, see R. v. Worrall, [2002] O.J. No. 2711, and R. v. Barges, 2005 CanLII 47766 (ON SC), [2005] O.J. No. 5595 at paras. 44-47.
64In terms of inducements, in R. v. Fernandes, 2016 ONCA 722, the Court of Appeal offers the following guidance, at paras. 26 and 27:
Where the state induces a suspect to confess, regardless of whether the inducement comes in the form of a threat or a promise, the confession will be inadmissible when the inducement, whether standing alone or in combination with other factors, is strong enough to raise a reasonable doubt about whether the will of the subject has been overborne: Oickle, at para. 57.
The most important consideration in determining whether the accused's statement has been induced by such a threat or promise is whether there was a quid pro quo offer by the interrogators. A quid pro quo offeris an inducement for the suspect to confess that raises the possibility that the suspect is confessing, not because of any internal desire to confess, but merely in order to gain the benefit offered by the interrogator: R. v. Heatley, 2015 BCCA 350, 375 B.C.A.C. 194, at para. 6, and Oickle, at para. 56.
65While the existence of a qui pro quo often signals concerns about voluntariness, it is not the quid pro quo itself that renders the statement involuntary. Rather, as stated by Deschamps J. in R. v. Spencer, 2007 SCC 11 at para 19, “…while a quid pro quo may establish the existence of a threat or promise, it is the strength of the alleged inducement that must be considered in the overall contextual inquiry into voluntariness.”
66Where an interrogating officer resorts to techniques suggesting it would be “better” for the accused to tell the truth and confess, there is a risk that the language used will create a prohibited quid pro quo and render the statement involuntary, see R. v. Oickle, at para. 44, and R. v. Wabason, 2018 ONCA 187 at paras. 16-20. Similarly, language that suggests that a detainee’s credibility is at its highest during an interview can also suggest a prohibited quid pro quo that undermines both the right to silence and legal advice given by counsel, see R. v. Van Wyk, [1999] O.J. No. 3515 (S.C.) at paras. 160-168 and R. v. Othman, [2018] O.J. No. 6751 at paras. 12-19.
Analysis and Findings
67I will start my analysis with Mr. Brokenshire’s initial interaction with the police. In this regard, I note that the interaction leading up to Mr. Brokenshire’s agreement to accompany the police officers and his entry into the police vehicle is not recorded. While it would have been preferable for the police to have activated their recording device as soon as they approached Mr. Brokenshire, I am not concerned that their failure to do so in this case casts doubt on what occurred. More particularly, I accept the evidence that the intention of the police officers was to record the interaction once and if Mr. Brokenshire agreed to go with police and indeed, that is what happened. From the time Mr. Brokenshire entered the vehicle, the interaction is recorded and no issue was raised regarding anything that transpired during the transport to the station.
68In terms of the initial interaction, I accept that Mr. Brokenshire was a potential suspect and not merely a potential witness. When the police approached him, they did not have reasonable and probable grounds to arrest him, but he was clearly someone they believed might be involved in the murder in some fashion. He was not advised that this was their belief. Instead, he was told that the police wanted to speak to him about the murder, and that they were essentially speaking to “everybody” as part of their investigation. They asked him if he would assist with the investigation and in response to a question about whether he was under arrest, they replied that he was not under arrest and not being detained. He was also advised that he could call a lawyer and that his right to call a lawyer would be explained to him at the station.
69Mr. Brokenshire agreed to accompany the police officers. I find that he was not detained at this point. Rather, I find that he voluntarily agreed to accompany the police officers to the station. The interaction at this point was non-adversarial and non-coercive. More importantly, there was no attempt to ask Mr. Brokenshire any questions until he was taken to the police station.
70Once at the police station, Mr. Brokenshire was taken to an interview room. Again, I find that he was not detained at this time. The interview commences with a caution. Mr. Brokenshire is told that the police want to speak about the murder of Joe Simonds. Mr. Brokenshire himself confirms that he has the right to remain silent and that anything he says can be used against him in a court of law. Det. Sgt. Van Allen tells Mr. Brokenshire that he, like everybody, has the right to counsel, though he is not under arrest or being detained. Nonetheless, she offers Mr. Brokenshire an opportunity to consult counsel and he declines. She also tells him that he is not being detained and that he is free to leave whenever he wishes. He acknowledges that he is free to leave on more than one occasion.
71Importantly, Det. Sgt. Van Allen tells Mr. Brokenshire very clearly that if he says anything that implicates him in the death of Joe Simonds, he could be charged with a criminal offence including murder. She also explains that people can be involved in an offence in more than one way, including directly and indirectly. She asks whether in view of this information Mr. Brokenshire wishes to consult counsel and he again declines. She then reminds him that if he changes his mind at any point and wants to speak to counsel, all he has to do is ask.
72This portion of the interview concludes with Det. Sgt. Van Allen re-iterating that Mr. Brokenshire is free to leave, that what he says can be used against him in court and lastly, that anything said to him previously should not influence or compel him to speak. Mr. Brokenshire is asked to confirm his understanding of his rights and the cautions and he does so in his own words.
73The interview commences and the initial portion continues for a lengthy period of time, from 22:16:20 until 1:31:46. The tone of the interview is non-confrontational. It involves an open dialogue and Mr. Brokenshire is an engaged and willing participant.
74I see no voluntariness concerns with the initial portion of interview. I find that Mr. Brokenshire was sufficiently aware of his predicament and voluntarily chose to speak with the police. He was not detained during this period. There is no atmosphere of oppression or coercion. The tone of the interview is entirely professional. There are no inducements of any sort. Lastly, I am not troubled by the failure to specifically advise Mr. Brokenshire that he was a potential suspect. The subject matter of the interview was made perfectly clear. Mr. Brokenshire was cautioned more than once and was clearly told that if he said anything that implicated him in the murder he could be charged. In these circumstances, I do not see the failure to specifically state that he was a potential suspect as raising any concerns about the voluntariness of his statement.
75In terms of the next portion of the interview, it begins at approximately 1:31:57 when Det. Sgt. Van Allen leaves the interview room and is told by other investigators that Ms. Pinto has revealed that Mr. Brokenshire left her home on the night of the murder in a black car. The defence argues that the nature and tone of the interview changes when Det. Sgt. Van Allen learns of the information obtained from Ms. Pinto. The defence further argues that on the basis of this information, Det. Sgt Van Allen had reasonable and probable grounds to arrest Mr. Brokenshire for murder. In cross-examination, Det. Sgt. Van Allen disagreed with this suggestion. However, she did indicate that when she returned to the interview room to continue the questioning, she wanted to confront Mr. Brokenshire with this new information in order to get him to tell the truth.
76Det. Sgt. Van Allen returns to the interview room at approximately 1:34:03. I agree with the defence that the nature and tone of the interview visibly changes at this time. Det. Sgt. Van Allen becomes more confrontational with Mr. Brokenshire. Her physical presence changes. She leans forward in her chair and moves closer to him.
77At approximately 1:45:12, Det. Sgt. Van Allen suggests that she has information that contradicts Mr. Brokenshire and at 1:48:17, she specifically indicates that she has information about him being in a black car. When Mr. Brokenshire tries to offer an explanation for the black car, Det. Sgt. Van Allen quickly calls him on it and reminds him that she wants the truth. She then suggests to Mr. Brokenshire that his version of events regarding the black car is “a problem” that needs to be dealt with. At approximately 1:58:00, she tells Mr. Brokenshire that he has been treading water and that he is starting to sink. She indicates that she is throwing him a “life preserver.”
78At approximately 1:59:53, Det. Sgt. Van Allen directly accuses Mr. Brokenshire of not being 100% truthful. She further suggests that she believes he went to Joe Simonds’ house on the night of the murder and that he went there because he is a “protector.” She suggests that as a protector, Mr. Brokenshire is not a bad person. She then indicates that the whole story is going to come out and she implores him to tell the truth. At approximately 2:03:00, Mr. Brokenshire makes an admission about his involvement. At approximately 2:03:29, Det. Sgt. Van Allen tells Mr. Brokenshire again that the whole story is going to come out and that “its not even anywhere close to what you’ve told me so far.”
79She then tells Mr. Brokenshire that if he has an explanation for why he went to Joe Simonds’ house, she needs to know it “now” because “otherwise after today you have no credibility because this is the only opportunity…that I could sit down with you….” In response, Mr. Brokenshire offers further details about his involvement. He is asked whether Martin Forget is the one who pulled the trigger and he says no. He denies knowing that Joe Simonds was going to be shot and maintains that all he did was knock on the door and walk away.
80At 2:09:14, Det. Sgt. Van Allen tells Mr. Brokenshire that he is no longer free to leave. She then explains that he is being detained for accessory to murder and potentially murder. At approximately 2:11:30, she asks Mr. Brokenshire whether he wishes call counsel and he indicates yes. Mr. Brokenshire is then arrested for murder. This portion of interview ends at approximately 2:20:07, when Det. Sgt. Van Allen exits the interview room to arrange for a consultation with counsel.
81The interview resumes at 2:25:56. This portion of the interview is essentially a continuation of the initial interview. It covers the interaction surrounding the implementation of the right to counsel and the interaction with Mr. Brokenshire following his consultation with duty counsel.
82During this portion of the interview, Det. Sgt. Van Allen returns to her earlier comments regarding how the interview would be Mr. Brokenshire’s last chance to tell the truth. She tells him that if she doesn’t have the story from him, she will have to piece it together from “everything else.” She re-iterates that “after today…I don’t get a chance to get the truth anymore…”
83Det. Sgt. Van Allen continues to implore Mr. Brokenshire to tell the truth and at approximately 3:30:15, she again tells Mr. Brokenshire that this is his “only opportunity to be credible and tell the…tell the truth of what actually happened.” She adds “I’m here talking to you because I want us to cross that bridge and get the whole story out, but now is the only time we can do that, and after we walk outta this room it’s gone ok?”
84Approximately two minutes later, Det. Sgt. Van Allen tells Mr. Brokenshire that unless he tells her otherwise, she is going to have to assume that the murder was his idea, that he planned it and brought his accomplices along with him. She indicates that she’s “certain” he’s in this situation because of his love for his children. She then indicates, “…Sonny, you’re not filling in the blanks and they’re gonna get filled in for you, okay?” The interview ends with Det. Sgt. Van Allen telling Mr. Brokenshire that “you’re not gonna say anything that’s gonna get you into more trouble right now, okay?”…“all you’re gonna do is provide clarity.” Mr. Brokenshire responds indicating that he does not believe her.
85The interview ends at 3:43:42 and Mr. Brokenshire is returned to his cell. The following morning, Det. Sgt. Van Allen has Mr. Brokenshire brought back in the interview room for a “second interview.” In my view, given the proximity in time and the fact that the interview is again conducted by Det. Sgt. Van Allen, this interview is essentially a continuation of the earlier interview from the night prior. Indeed, at the outset of this interaction, Det. Sgt. Van Allen tells Mr. Brokenshire that “nothing has changed” since the earlier interview. She reminds him again that this is the last opportunity for her to get a statement and that getting his side of the story will be important down the road. On two further occasions during this portion of the interview, she returns to the theme of credibility and during one of those occasions, she specifically reminds Mr. Brokenshire that this is the only time he is going to have credibility.
86The defence argues that during the latter part of the first portion of the interview, into the second portion of the interview and then into the third portion as well, Det. Sgt. Van Allen resorts to two main themes that render the statement involuntary. First, the defence highlights the use of the “sinking/drowning” metaphor and suggests that this amounts to an inducement or threat. The defence argues that read in context, the repeated references to this metaphor were meant to convey to Mr. Brokenshire that if he spoke, he could save himself and if he didn’t, he would drown.
87Second, the defence argues that the repeated references to Mr. Brokenshire only having credibility at the time of the interview and not later, serve to undermine the voluntariness of the statement in that they are legally incorrect and undermine the right to silence and the advice given by counsel.
88Tied to this second theme is the suggestion made by Det. Sgt. Van Allen that unless Mr. Brokenshire speaks and tells his version of events, she will assume that he is the one responsible for planning and carrying out the murder. Viewed in context, the defence argues that these comments amount to an implicit threat.
89Lastly, the defence argues that Mr. Brokenshire was not aware of the true extent of his jeopardy. In particular, the defence notes that once Ms. Pinto’s information came to light, Mr. Brokenshire’s role as a suspect became even more clear and he should have been advised that he was a suspect at that time.
90The Crown’s position is that none of the impugned comments taken alone or together raise concerns about voluntariness. The Crown argues that when the entire interaction between Det. Sgt. Van Allen and Mr. Brokenshire is viewed in context, its is clear that Mr. Brokenshire understood his legal predicament and made a voluntary decision to speak. Indeed, the Crown points to the advancement of a false alibi, which is supported by the preliminary inquiry evidence of Ms. Jessica Henry, and suggests this supports a conclusion that Mr. Brokenshire wanted to speak to police. Ultimately, the Crown argues that even if some of the comments made might be objectionable standing alone, the entire course of the interview suggests that Mr. Brokenshire’s decision to speak was not in any way linked to these comments.
91I start by addressing the issue of Mr. Brokenshire’s knowledge of his jeopardy. As indicated earlier, I see no concerns regarding Mr. Brokenshire’s knowledge of his jeopardy during the initial portions of the interview. He is cautioned on more than one occasion. He is made aware that if he makes an inculpatory statement he can be charged with a criminal offence, including murder. He knows he can leave and knows he has the right to remain silent. On the whole, this is not a case where the failure to specifically tell Mr. Brokenshire at the outset that he is a suspect leaves me with concerns about voluntariness.
92The issue during this second portion of the interview is whether the police ought to have informed him that he was a suspect once they learned of Ms. Pinto’s information. Again, I am not troubled by the failure to tell him he was a suspect at this stage. I reach this conclusion for two reasons. First, in view of the earlier interaction with police, I find that Mr. Brokenshire was provided with sufficient information regarding the nature and purpose of the interview, including the potential outcomes and his potential jeopardy. Second, given the change in nature and tone of the interview following receipt of the information from Ms. Pinto, it would have been obvious to Mr. Brokenshire that he was viewed as a suspect. Indeed, when told he is no longer free to leave, he replies indicating “I thought that was gonna happen.” Viewed within this context, I see no voluntariness concerns in this regard.
93Turning to the next arguments advanced by the defence, I find that this case is similar to the fact scenarios presented in both Othman and Wabason. Mr. Brokenshire is essentially told that he will lose credibility if he does not speak. Initially, this theme starts out with the officer simply telling him that this would be her only opportunity to speak to him, which while not true, is not overly objectionable. However, the theme develops into a direct suggestion that Mr. Brokenshire will only have credibility if he speaks during the interview. This is coupled with a suggestion that it is Mr. Brokenshire’s decision whether to speak to police regardless of the advice received from counsel. He is also told that unless he speaks, the officer will essentially have no option but to assume that he is the one responsible for the planning and execution of the murder.
94Taken together, these comments raise a concern regarding the voluntariness of the statement. In this regard, I note paras. 16-18 of Othman, which apply with equal force to this case:
As noted in R. v. Van Wyk, [1999] O.J. No. 3515 (S.C.), at paras. 160-68, police assertions to the effect that an accused’s credibility is at its highest during a police interview and that a trial court will see and take a negative view of a refusal to speak are legally incorrect and undermine the accused’s right to silence.
In our view, the interviewing officer’s comments, as set out above, constituted both a threat and an inducement as they suggested negative legal consequences if the appellant failed to speak and positive consequences if he spoke.
Moreover, the combined suggestion that, despite legal advice, the 19-year-old appellant should make his own decision about whether to speak and that he would not be believed if he did not speak during the police interview, improperly undermined the advice the appellant received from his lawyer.
95When I consider the impugned comments in context and consider factors relating to Mr. Brokenshire’s age and his mental health challenges, I find that the comments about his credibility being at its highest during the interview, coupled with the comments regarding the assumptions the officer would have to make unless he explained his role, amount to an inducement and implied threat.
96Having considered the whole of the police interaction in context, I am left with a reasonable doubt about the voluntariness of the portion of the statement following the impugned comments. I am simply not satisfied beyond a reasonable doubt that the comments did not undermine his right to silence and his ability to make a free and informed decision about whether to talk to police.
97While the defence argues that there is a doubt about the statement’s voluntariness once Det. Sgt. Van Allen re-enters the room armed with the knowledge regarding Ms. Pinto’s information, I am not prepared to find that this is when the statement became involuntary. I acknowledge that the tone and nature of the statement changes at this stage and that the officer more openly resorts to techniques to encourage Mr. Brokenshire to speak. However, the change in tone and nature does not, standing alone, leave me with a doubt about voluntariness. I also acknowledge that the officer’s comments regarding “life saver” and “drowning” are potentially problematic as they might suggest an inducement and a quid pro quo. However, when viewed in context, I find that these references relate to the officer’s knowledge of facts that Mr. Brokenshire is not being candid about. She is telling him that she knows more, and gives him a hint about what she knows with a view to encouraging him to come clean. The “life preserver” is the hint of what she knows. She is effectively telling Mr. Brokenshire that she is testing his credibility against what she knows and he is sinking rather than accepting the hint. When I examine the context of this portion of the interview, I accept the Crown’s argument that comments made by Det. Sgt. Van Allen relating to sinking/drowning do not amount to an inducement, threat or promise sufficient to raise a doubt about the voluntariness of the statement.
98That changes, however, once the officer first resorts to the theme of credibility. The combination of all of the circumstances, together with the suggestion that Mr. Brokenshire will only have credibility at this stage, leaves me with a reasonable doubt that Mr. Brokenshire’s will may have been overborne.
99As such, I find beyond a reasonable doubt that the statement is voluntary up until the first mention of Mr. Brokenshire having no credibility after the interview. For clarity, that reference is found shortly after 2:03:29 on the video and page 295 of the accompanying transcript. From that point forward, I am not satisfied beyond a reasonable doubt that the statement is voluntary and the balance, including the statement taken the following morning, is inadmissible. In this regard, I note that the statement in the morning is essentially a continuation of the earlier statement. It is conducted by the same officer. There is no attempt to break the continuity between the statements. To the contrary, the officer essentially picks up where she left off, and quickly re-iterates the theme of this being the only opportunity for Mr. Brokenshire to have credibility and tell his side of the story. In view of the degree of connectivity between these statements, the morning statement is clearly tainted by the same voluntariness concerns.
Section 10(a) and (b) of the Charter
100The defence further argues that Mr. Brokenshire’s section 10(a) and (b) rights were violated because the police failed to properly advise him of the reason for his detention and failed to promptly advise him of his right to counsel upon detention.
101The defence did not argue that Mr. Brokenshire was detained at the outset of his interaction with police. That is a fair position on the facts. Indeed, I find that he was not detained at the outset of the interaction with the police. On the evidence before me, it is clear that the officers want Mr. Brokenshire to accompany them to give a statement, but it is also clear that he attends voluntarily. On the way to the station, the police take him to see his purported landlord. They drop him off a block away so that the police vehicle is not visible. He walks on his own to meet the landlord and returns a short while later. They then stop and pick up food. Once at the station, Mr. Brokenshire is left outside the police station on his own while the officers set up the interview room. He is accompanied through the front doors into an interview room and once in the interview room Mr. Brokenshire repeatedly confirms his understanding that he is free to leave at any point. On these facts, there can be no suggestion that Mr. Brokenshire was either actually or psychologically detained.
102Against that backdrop, the defence argues that once Det. Sgt. Van Allen learns of Ms. Pinto’s information, it is clear that Mr. Brokenshire is not leaving the interview room and is thereafter detained. The defence points to the change in tone and nature of the interview and notes that once the admission of participation is made, Mr. Brokenshire is actually told that he is under detention and is no longer able to leave. The defence argues that when the interaction is viewed in context, the decision to hold off on telling Mr. Brokenshire that he was detained was tactical. As soon as the admission was obtained, the officer revealed the fact that Mr. Brokenshire was, in fact, detained.
103In response, the Crown argues that there was no tactical game at play. Instead, once the officer received the admission of involvement she had grounds to arrest Mr. Brokenshire, and she promptly told him that he was detained and proceeded thereafter to tell him why and to provide him with his right to counsel.
104The onus of establishing a violation of section 10(a) and (b) of the Charter rests with the defence on a balance of probabilities. The police obligation to comply with section 10(a) and (b) arises upon arrest or detention. As such, the first issue to be decided is when Mr. Brokenshire was first detained.
105In assessing whether Mr. Brokenshire was detained within the meaning of the Charter once Det. Sgt. Van Allen returned to the interview room at approximately 1:34:03, I am guided by the Court of Appeal decisions in R. v. Reid, 2019 ONCA 32 and R. v. Moran (1987), 1987 CanLII 124 (ON CA), 36 C.C.C. (3d) 225 (Ont.C.A.). I note that in accordance with these decisions, a constitutional detention requires a significant physical or psychological restraint, see R. v. Mann, 2004 SCC 52 at para. 19.
106The issue of the existence of reasonable grounds to arrest is not determinative of the issue of detention. As a matter of law, police are not obligated to arrest or detain someone once they have grounds. Rather, the existence of sufficient grounds to arrest or detain are simply a condition precedent to a lawful arrest or detention. That said, the existence of grounds to arrest or detain can shed light on a police officer’s state of mind at the time of the interaction. In this regard, I accept the officer’s evidence that receipt of the information from Ms. Pinto did not give her reasonable and probable grounds to arrest Mr. Brokenshire. It was his admission of involvement in the murder that gave her grounds to arrest him and she advised him of this accordingly. That said, I accept that the information from Ms. Pinto certainly raised suspicions about Mr. Brokenshire’s involvement and gave the police a basis to investigatively detain him. However, I am not satisfied that this is what happened. Indeed, this was never suggested in cross-examination.
107In this case, I have no evidence from Mr. Brokenshire suggesting that he felt psychologically detained. That does not, of course, end the analysis, as psychological detention is assessed objectively, i.e. would a reasonable person in the circumstances feel that there was no choice but to comply; see R. v. Grant, 2009 SCC 32, at para. 44.
108I agree with the defence that there is a visible change in the tone and nature of the interview. The interview becomes more confrontational. The officer, who up until that point generally sat back in her chair and was open and friendly, sits forward in her chair, closer to Mr. Brokenshire. Her tone becomes more assertive. However, nothing is said to suggest that Mr. Brokenshire is no longer free to leave. More particularly, nothing is said to change the clear understanding established at the outset of the interview that Mr. Brokenshire was free to leave whenever he wanted and that the door to the interview room was unlocked.
109Viewed objectively, this is a close call. Mr. Brokenshire is a young man with some mental health issues. He is not overly sophisticated. However, he was clearly advised that his attendance was voluntary and that he could leave the interview if he so chose. He was cautioned and was given the opportunity to consult counsel. On a balance of probabilities, I am not satisfied that he or a reasonable person in his situation would feel that he or she had no choice but to remain in the interview room once the interview resumed after Det. Sgt. Van Allen learned of Ms. Pinto’s information.
110That said, I find that Mr. Brokenshire was detained at approximately 2:09:14 when he was told by Det. Sgt. Van Allen that he was no longer free to go.
111As soon as he is advised that he is no longer free to go, Det. Sgt. Van Allen then states “But you and I are not done.” Rather than providing his 10(a) and (b) rights at that time, Det. Sgt. Van Allen continues with the interview. She tells Mr. Brokenshire that she is trying to help him and this prompts a further admission from Mr. Brokenshire. She then tells him that she has grounds to detain him for accessory to murder and, potentially, murder. Shortly after 2:11:25, Det. Sgt. Van Allen asks Mr. Brokenshire if he wants to speak to counsel and he says yes. The following exchange then takes place:
Van Allen: Right now my priority is you and I talking.
Brokenshire: Yes.
Van Allen: We haven’t got to the bottom of this.
Brokenshire: I mean --.
Van Allen: All I’m trying to make clear is that something has changed and you’re not walking outta this door right now, do you understand that? But you can talk to a lawyer right now if you want to?
Brokenshire: ‘Cuz I told you that I knocked on his door and he was alive and well?
Van Allen: And you went there with Martin in the black car and you know he got shot. All you’re telling me is that you’re saying you didn’t pull the trigger.
Brokenshire: I didn’t pull the trigger and I walked away, I’m telling you that.
Van Allen: And you said that you don’t know who pulled…well you don’t…
Brokenshire: Yeah.
Van Allen: …know the name of the person who pulled the trigger.
Brokenshire: Yeah.
Van Allen: But you and I both know you were there when he got shot and you went there with Martin in the black car. I just want you to sit here for a second, okay?
Brokenshire: So I’m going to jail, lovely. Thank you very much.
112Following this exchange, Det. Sgt. Van Allen leaves the interview room for approximately two minutes. When she returns, she states “You and I got stuff to talk about still, okay?” She then indicates to Mr. Brokenshire that he is under arrest for murder and she refers back to the right to counsel provided at the outset of the interview. Mr. Brokenshire then provides the name of a lawyer he wishes to speak to. Det. Sgt. Van Allen then states:
Sonny, I’m not gonna ask you a single question until I’ve had the chance to call a lawyer for you okay? But what I want you to keep in mind is that I know that I don’t have the full story yet and I think it’s very important to get that story.
113Following this exchange, Det. Sgt. Van Allen makes attempts to locate Mr. Brokenshire’s counsel of choice, but is unsuccessful. At approximately 2:25:56, she offers to contact duty counsel and Mr. Brokenshire accepts. Det. Sgt. Van Allen indicates that her “main priority” is getting Mr. Brokenshire in touch with counsel, though she also notes “I don’t even have anywhere close to the whole story, so I’m not gonna ask you a single question until I’ve… had a chance to get you a lawyer.”
114As soon as Mr. Brokenshire’s consultation with counsel was complete, Det. Sgt Van Allen confirmed that Mr. Brokenshire was satisfied with the advice provided, and she then indicated she had to put him in touch with counsel before asking him any further questions and that she now wanted to get the whole story from him.
115Against this backdrop, I turn to my analysis of the section 10(a) and (b) Charter issue. It is clear that once Det. Sgt. Van Allen tells Mr. Brokenshire that he is no longer free to leave, she has an obligation to comply with section 10(a) and (b). In my view, section 10(a) of Charter was adequately complied with. Mr. Brokenshire was under no misapprehension as to the reason for his attendance at the police station initially and later on for his detention. Indeed, when told that he is no longer free to leave, he replies “Yeah, I thought that was going to happen.”
116I also find that he was advised of his right to counsel, albeit not in formal terms. He indicates that he wishes to speak with counsel and rather than immediately holding off, Det. Sgt. Van Allen continues talking to him and tells him that her priority is to “get to the bottom of this.” She then engages Mr. Brokenshire in discussion by recapping his admissions. After stepping out of the room briefly, she then re-enters and tells Mr. Brokenshire that he is under arrest. She re-iterates that he has the right to counsel of his choice or duty counsel through Legal Aid, and Mr. Brokenshire again says he wants to speak to counsel. While Det. Sgt. Van Allen tells Mr. Brokenshire that she is not going to ask a single question until he speaks to counsel, she also tells him that she knows she has not been given the whole story and that it is important that she get the whole story.
117In my view, Det. Sgt. Van Allen violated Mr. Brokenshire’s section 10(b) rights by failing to hold off on questioning him until he had spoken to counsel. Rather than immediately bringing the discussion to end once Mr. Brokenshire initially indicated that he wished to speak to counsel after being advised that he was detained, she continued discussing his admissions with him and indicated that their discussion was her priority. She then left the room, returned moments later and indicated that he was now under arrest for murder. While she indicated that she would not ask another question until he spoke with counsel, she also made it clear to him that their discussion was not over and that she believed there was a lot more to the story.
118In terms of remedy, I note that the section10(b) violation arises during a portion of the statement that I have already ruled as inadmissible on the basis of the Crown’s failure to prove voluntariness beyond a reasonable doubt. As such, there is no need to consider the section 24(2) Charter analysis in relation to the statement. That said, I will note that if I had found the entire statement voluntary, I would have excluded the portion between the section 10(b) Charter breach and the eventual consultation with counsel. The failure to hold off on questioning a detainee who seeks to consult with counsel is a serious violation of the right to counsel. In the context of this case, during the holding off period, the officer also made it clear that their discussion was not done and that she knew there was more to the story. In brief, the officer used the holding off period to set the stage for a continued interview following consultation with counsel. On the basis of the analysis in R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont.C.A.), I also would have excluded the portion following the consultation with counsel. This was essentially a continuation of the earlier statement and it was tainted by the discussion that occurred during the holding off period.
119To conclude, I am satisfied beyond a reasonable doubt that the statement made by Mr. Brokenshire on June 7, 2017 between 22:16:20 and approximately 02:03:50 is admissible. The balance of the statement, including the statement the following morning, is inadmissible.
Justice J. Di Luca
Released: December 20, 2019