Court File and Parties

OSHAWA COURT FILE NO.: CR-19-14971 DATE: 20200330 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – PAUL JAGLAL Defendant

Counsel: Michael Gillen and Greg Black, for the Crown Nathan Gorham and Breana Vanderbeek, for the Defendant

HEARD: March 11, 2020

RULING ON 10(B) APPLICATION

LEIBOVICH J.

Overview

[1] Mr. Jaglal is charged with first degree murder in relation to the death of his landlord, Jefferey Johnson. Mr. Jaglal gave two statements to the police: one on December 17, 2017 before he was arrested and charged, and a second on January 25, 2018, after he was arrested and charged. Mr. Jaglal concedes that the December 17, 2017 statement was given voluntarily and is admissible at trial. A blended voir dire was held on March 10th and 11th, 2020 to determine if the January 25, 2018 statement was given voluntarily and in compliance with section 10(b) of the Charter. After Constable Firth testified on the voir dire, the defence conceded that the statement was given voluntarily. The motion continued on the issue of whether Mr. Jaglal’s rights under s.10(b) of the Charter were violated and, if they were, should the statement be excluded pursuant to section 24(2) of the Charter.

[2] It is the defence’s position that the accused’s rights were violated when the police did not allow Mr. Jaglal to contact his stepmother to arrange to speak with his counsel of choice. As a result, he only spoke with duty counsel for 10 minutes before speaking to the police, where, after being confronted with the strength of the police’s case, he admitted that he had killed his landlord, but in self-defence. The defence submits that the statement should be excluded pursuant to s. 24(2) because it was serious and resulted in the creation of evidence now being used against Mr. Jaglal. The Crown submits that there was no breach of s.10(b), as Mr. Jaglal was not reasonably diligent in exercising his right to counsel. If there was a breach, the evidence should not be excluded as the police acted in good faith, the accused still spoke with duty counsel, and this is a first-degree murder case requiring the trier of fact to have all the relevant information. For the reasons set out below, I find that Mr. Jaglal’s s.10(b) rights were violated and the January 25, 2018 statement is to be excluded pursuant to s.24(2) of the Charter.

Facts

[3] Constable Firth, one of the arresting officers, testified at the voir dire along with Mr. Jaglal and Mr. Jaglal’s stepmother. The audio recordings of the arrest, the transportation to the police station, and the booking at the police station were played during the hearing.

[4] Constable Firth testified that at 2:35 p.m. she arrived at the Liberty Street Motel. A surveillance unit was in the area. Detective Snow was present in order to meet with an animal shelter as it was understood that the accused had many cats at the motel that had to be taken care of. When Constable Firth was advised by surveillance that the accused was outside of the motel room, she approached the accused and told him that he was under arrest for first degree murder. He asked to call his stepmother. The officer said no. Subsequently, there was a brief discussion with the accused on several issues, including the cats in the motel room.

[5] Constable Firth read the accused his right to counsel. She asked him if he understood. He said “Yeah. Yeah.” The following exchange ensued:

Constable Firth: Do you wish to call a lawyer now?

Mr. Jaglal: Um, I’d actually, like to call my stepmother, so she could organise everything.

Constable Firth: Okay. Well, right now, your right is to legal advice.

Mr. Jaglal: Okay.

Constable Firth: So, we can organize.

Mr. Jaglal: She – she would be able to obtain that for me.

Constable Firth: Your right is for you to speak to counsel not for her.

[6] Mr. Jaglal responded “okay”. The officer then asked Mr. Jaglal if he would like to speak to a lawyer and if he had a lawyer. He said that he did not have a lawyer. The officer than advised him again of duty counsel at which point Mr. Jaglal said that he would like to speak with duty counsel.

[7] Mr. Jaglal was then transported to the police station. While en route, he asked when he would be able to speak with duty counsel. He was told that he would be able to speak with duty counsel upon arrival at the police station. Mr. Jaglal also asked if his stepmother could be contacted to deal with his pets and advised that her number was in the motel room. He was told that the police would discuss this.

[8] After Mr. Jaglal arrived at the police station and was processed, a call was placed to duty counsel at 3:59 p.m. When duty counsel did not call back, a second call was placed at 4:19 p.m. Duty counsel called back at 4:23 p.m. and spoke with Mr. Jaglal. He was returned to his cell at 4:34 p.m.

[9] Constable Firth testified that she did not allow Mr. Jaglal to speak to his stepmother because she believed that he simply wanted her to take care of the pets. She testified that while her notes, the arrest report, the transcripts of the arrest, transport and booking all refreshed her memory, she had an independent recollection of the event. She testified that she recalls believing that Mr. Jaglal wanted to speak to his stepmother about organizing the pets. She did not realize that he wanted to speak to his stepmother about obtaining counsel. If she had, she would have allowed him to speak to his stepmother as she understood that she was required to facilitate contact with a lawyer through a third party.

[10] She testified that in hindsight, and from listening to the conversation, Mr. Jaglal was asking for his stepmother to contact a lawyer. She testified that had she realized this at that time, she would have allowed the request. She did not recall Mr. Jaglal clarifying that point. She was not trying to deprive him of obtaining legal advice. There was no concern about destruction of evidence in the motel room.

[11] Mr. Jaglal testified on the voir dire that he wanted to speak to his stepmother so she could contact a lawyer. He knew that she had a lawyer that she trusted. He did not repeat this request because the officer told him that it was not an option. He agreed in cross-examination that he felt comfortable repeating other requests (such as having a cigarette) and raised the issue about contacting his stepmother about the pets several times. He agreed that nothing prevented him from asking the police again if he could contact his stepmother so she could contact a lawyer.

[12] He testified that he spoke with duty counsel before he gave his statement and that he knowingly went against the advice given to him by duty counsel. He agreed in cross-examination that he told the police at the end of his interview that he was waiving every right. In re-examination, he testified that at the beginning of his police interview he did not explain what happened. However, when the police presented him with the evidence against him, he realized he had “no hope in hell”, so he “started talking”. At no point was he told that he could contact a third party to call a lawyer. If he knew his stepmother could contact a lawyer for him, he would have asked again.

[13] Mr. Jaglal’s stepmother testified that in 2015 she was in a car crash and injured. She had a wonderful personal injury lawyer. She was in contact with Mr. Jaglal and if he had called her, she would have called her lawyer for assistance or to refer Mr. Jaglal to another lawyer who could assist.

The Law

[14] Section 10(b) of the Charter provides:

Everyone has the right on arrest or detention:

(b) to retain and instruct counsel without delay and to be informed of that right.

[15] Section 10(b) imposes three positive duties on police officers who make an arrest or detain a person:

(a) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

(b) if the detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent or dangerous circumstances); and

See: R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Brydges, [1990] 1 S.C.R. 190; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429; R. v. Ector, 2018 SKCA 46, [2018] S.J. No. 251

[16] This pre-trial motion deals with the second and third duties, known as implementational duties which are triggered when the detainee indicates a desire to exercise his or her right to counsel. The police have a duty to facilitate access to a lawyer immediately upon the detainee's request to speak with counsel. The police have a duty to facilitate access to a lawyer, not a third party, unless they are informed that the purpose in contacting a third party is so that the third party can provide access to a lawyer. As noted by MacPherson J.A. in R. v. J.B., 2015 ONCA 684, 341 O.A.C. 23 at para. 14:

The purpose of the right to counsel is to provide the accused with legal advice and to ensure that the accused understands his or her right to silence: see R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at paras. 24-26; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 38. Police have a duty to facilitate access to a lawyer immediately and that includes the right to contact counsel of choice as well as the right to contact a third party to facilitate access to counsel: see R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 24; R. v. K.W.J., 2012 NWTCA 3, at paras. 32-33. [Emphasis added]

[17] When a detainee asks to speak to a third party, the police are under no obligation to ask why he or she wishes to contact the third party; R. v. Mumtaz, 2019 ONSC 468. However, when the police are informed that the purpose of the contact is to facilitate contact with counsel, the police must, as set out above, facilitate that contact.

[18] The detainee’s right is not absolute, and the police’s obligation is contingent on the detainee being reasonably diligent in attempting to contact counsel; R. v. Willier 2010 SCC 37, [2010] 2 S.C.R. 429 at para 33; R v. Tremblay, [1987] 2 S.C.R. 435; R. v. Black, [1989] 2 S.C.R. 138. What constitutes reasonable diligence will depend on all the circumstances in a given situation; see R v. Tremblay and R v. Black at page 154-155. To be clear, the right to contact counsel in section 10(b) is the right to contact counsel of choice, but again the detainee must be reasonably diligent in exercising this right and in contacting counsel of choice. As explained in R. v. Willier, at para. 35 [emphasis added]:

Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation: Black. If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended: R. v. Ross, [1989] 1 S.C.R. 3; and Black.

[19] Lamer J. explained in R. v. Ross, [1989] 1 S.C.R. 3, at pp. 10-11, the difference between exercising one’s right to counsel of choice upon detention and at trial:

On being arrested, for example, the detained person is faced with an immediate need for legal advice and must exercise reasonable diligence accordingly. By contrast, when seeking the best lawyer to conduct a trial, the accused person faces no such immediacy. Nevertheless, accused or detained persons have a right to choose their counsel and it is only if the lawyer chosen cannot be available within a reasonable time that the detainee or the accused should be expected to exercise the right to counsel by calling another lawyer.

[20] The right to contact a third party to contact counsel is not absolute as in some instances there may be investigative concerns about allowing such contact as it is possible that it might lead to the destruction of evidence or the warning of an accomplice; R. v. Ector at paras. 48 and 49.

Analysis

Were Mr. Jaglal’s section 10(b) rights violated?

[21] I have had the opportunity to listen again to the audio of the exchange between Constable Firth and Mr. Jaglal after she advised him of his right to counsel. In my view, the audio makes it quite clear that Mr. Jaglal asked to speak to his stepmother so she could obtain counsel for him. Constable Firth then told Mr. Jaglal that the right was for him to contact counsel not his stepmother. This is wrong. The law, as set out above, requires the police to facilitate contact with a third party if the third party is to facilitate contact with counsel. Constable Firth testified that had she understood the request, she would have done just that. There was no reason not to allow contact with the stepmother and, in fact, the stepmother was contacted slightly later about the cats. There were no investigative concerns that would have prevented contact.

[22] The Crown submits that Mr. Jaglal was not reasonably diligent and should have renewed his request to contact his stepmother so she could contact counsel. Constable Firth testified that she did not appreciate at the time that the request was for the stepmother to contact a lawyer. However, a review of the audio shows that she directly responded to Mr. Jaglal’s request by stating that Mr. Jaglal had the right to contact a lawyer, not his stepmother. Constable Firth’s response was, in my view, a very clear “no” to the request. I do not see why Mr. Jaglal would have had to repeat the request nor is he required to repeat his request; R. v. Vernon, 2015 ONSC 3943, 340 C.R.R. (2d) 213, at para. 44, leave to appeal denied 2016 ONCA 211.

[23] The Crown submits that Mr. Jaglal’s repeated requests for cigarettes and requests to contact his stepmother about the pets show that he was comfortable with the police and should have repeated his request to allow him to call his stepmother so she could contact a lawyer. I agree that Mr. Jaglal appears to have been comfortable with the police. However, asking for permission to bend the rules about smoking is not quite the same as asking the police to change, what he was told, was the rule in a first-degree murder investigation. When he was advised of his right to counsel and then asked if he wanted to speak to a lawyer, Mr. Jaglal’s first response was that he actually wanted to speak to his stepmother. He was told that the right was about obtaining legal advice. Mr. Jaglal pursued his request and said that his stepmother could obtain a lawyer for him. He was then still told no. I don’t see any reason why Mr. Jaglal, having followed up once, would have thought that repeated requests would change the answer he was given. This can be contrasted with his repeated requests to speak to duty counsel, which he was told was forthcoming, and his repeated requests to have his stepmother contacted about the cats, which he was told was being considered by the police. The record supports his testimony that had he thought it was permissible for his stepmother to contact a lawyer, Mr. Jaglal would have pursued it further.

[24] The Crown seeks to draw support from the Supreme Court of Canada’s decision in R. v. Willier where the accused asked to speak to counsel but when counsel did not return his call, the police discussed the option of waiting or speaking with duty counsel. The accused opted to speak with duty counsel but complained later that his section 10(b) rights were breached. The facts are summarized in the judgment at paras. 11 and 12 as follows:

After Cst. Lahaie informed him that Mr. Royal would not likely be available until the next day, given the office closure, and of the immediate availability of Legal Aid, Mr. Willier opted to speak with duty counsel a second time. The exchange leading to Mr. Willier’s subsequent call to Legal Aid went as follows:

Lahaie: Did you, you left a message there, did you?

Willier: Yes

Lahaie: Did you wanna talk to any other lawyer this morning ...

Willier: No

Lahaie: to, to talk directly to a lawyer? We can phone this number here again, the after hours number, if you'd like.

Willier: No, I think I'll just wait for (inaudible). I just told the lawyer that.

Lahaie: Well, their offices are closed, they said…

Willier: Yeah.

Lahaie: ...on the answering machine. So they're not gonna be available until tomorrow.

Willier: Oh (inaudible).

Lahaie: Unless they, unless they check their messages all weekend. So if you wanna talk to a lawyer today, a direct lawyer, you can call, that's why we have these after hours, why the Legal Aid sign has these.

Willier: Sure, let's phone them. [A.R., vol. 2, at p. 241]

After a brief one-minute conversation with a Legal Aid lawyer, the police returned Mr. Willier to his cell.

Approximately 50 minutes later, Sgt. Gillespie initiated an investigative interview with Mr. Willier. After confirming Mr. Willier's prior consultations with Legal Aid, Sgt. Gillespie reinformed him of his right to retain and instruct counsel and offered him another opportunity to contact a lawyer before continuing with the interview. Mr. Willier indicated that he was satisfied with the advice he had received from Legal Aid. Sgt. Gillespie re-cautioned Mr. Willier as to his right to remain silent, informing him that anything he said may be used as evidence against him. He asked Mr. Willier to repeat the nature of the caution back to him to ensure that he understood its meaning, and Mr. Willier did so. Sgt. Gillespie indicated that he would proceed with the interview, but that Mr. Willier would be free at any time during the interview to stop and call a lawyer.

[25] In R. v. Willier, the Supreme Court of Canada found at para. 42 that Mr. Willier’s 10(b) rights were not violated:

As noted, s. 10(b) aims to ensure detainees the opportunity to be informed of their rights and obligations, and how to exercise them. However, unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview. In this case, despite the brevity of Mr. Willier's conversations with Legal Aid, Mr. Willier gave no indication that these consultations were inadequate. Quite the contrary, he expressed his satisfaction with the legal advice to the interviewing officer, prior to questioning. Mr. Willier is not entitled to express such satisfaction, remain silent in the face of offers from the police for further contact with counsel, remain silent in the voir dire as to the alleged inadequacies of the actual legal advice received, and then seek a finding that the advice was inadequate because of its brevity. A s. 10(b) Charter breach cannot be founded upon an assertion of the inadequacy of Mr. Willier's legal advice.

[26] The Crown states that this case is similar. Mr. Jaglal spoke with duty counsel, made no complaint about the advice he received and then willingly spoke to the police. I disagree. In this case, Mr. Jaglal was not choosing duty counsel over waiting for or contacting his counsel of choice. Nor was this a matter where there was an unreasonable delay in contacting counsel of choice as arranged through the stepmother. Rather, in this case, Mr. Jaglal was not even given the opportunity to arrange, through his stepmother, his counsel of choice. Mr. Jaglal testified that he was not waiving his right to choose his own counsel and that if he knew he was allowed to contact his stepmother to arrange counsel he would have repeated the request. Duty counsel was, in essence, the only choice provided to Mr. Jaglal. Duty counsel cannot be used to “trump a detainee's right to counsel of choice”. As summarized by Ducharme J. in R. v. Singh, 2020 ONSC 1342 at para. 17:

Police are not entitled to “default to duty counsel” when a detainee wants to contact a specific lawyer. Police are not discharged of their obligation to connect a detainee with their counsel of choice simply because duty counsel is on the other line. As Durno J. noted in Kumarasamy, “[t]he availability of duty counsel 24 hours a day cannot be used to trump a detainee's right to counsel of choice.” The police must hold off until reasonable efforts have been made to contact the accused's lawyer of choice, including in most cases permitting the accused to contact family or friends to assist in obtaining their lawyer's number: R. v. Kumarasamy, 22 M.V.R. (4th) 234 (Ont. S.C.), at paras. 21 and 25.

Also see R. v. Traicheff, 2010 ONCA 851, at para. 2.

[27] For the reasons given above, I find that Mr. Jaglal’s s.10(b) rights were violated.

Should Mr. Jaglal’s January 25, 2018 statement to the police be excluded pursuant to s.24(2) of the Charter?

[28] Statements obtained in breach of a person’s s.10(b) rights are presumptively admissible. The onus is on Mr. Jaglal to satisfy the court, on a balance of probabilities, that the admission of the proposed evidence could bring the administration of justice into disrepute pursuant to section 24(2) of the Charter. The section 24(2) analysis is contextual and must account for all the circumstances. The key to the s. 24(2) analysis is the balancing of the following factors: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society's interest in the adjudication of the case on the merits: R. v. Grant, 2009 SCC 32, [2009] S.C.R. 353, at para. 71.

[29] The evidence that the accused seeks to exclude is a statement to the police. There is no automatic rule of exclusion for statements obtained in violation of the Charter. The Supreme Court of Canada in R. v. Grant went through each of the above factors and explained how they generally tend to weigh in favour of the statement being excluded. They concluded at para 98:

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

[30] However, as noted by the Court of Appeal recently in R. v. Gignac, 2020 ONCA 42 at para. 12:

In Grant at paras. 91-98, the Supreme Court of Canada pointed out that courts have tended to exclude statements obtained in breach of the Charter. Having said that, the court also noted at para. 96 that particular circumstances may attenuate a Charter breach's impact on the accused's protected interests, for example:

[I]f an individual is clearly informed of his or her choice to speak to the police, but compliance with s. 10(b) was technically defective at either the informational or implementational stage, the impact on the liberty and autonomy interests of the accused in making an informed choice may be reduced. Likewise, when a statement is made spontaneously following a Charter breach, or in the exceptional circumstances where it can confidently be said that the statement in question would have been made notwithstanding the Charter breach, the impact of the breach on the accused's protected interest in informed choice may be less. [Citation omitted.]

[31] I now turn to the individual factors.

The seriousness of the breach

[32] In my view, the breach was serious. Constable Firth testified that she did not appreciate at the time that Mr. Jaglal was seeking to contact his stepmother so she could obtain counsel for him. I agree with defence counsel that Constable Firth’s testimony is simply unreliable on this point. Constable Firth’s testimony stands in contrast with the audio recording. The audio shows that Constable Firth responded directly to Mr. Jaglal’s request and denied it because he was only allowed to contact a lawyer, not his stepmother. The audio recording does not support Constable Firth’s testimony that she misunderstood the rationale for the request at the time.

[33] I do not think that Constable Firth lied at the voir dire. It is perhaps understandable that given the pre-arrest focus on the pets and the subsequent conversation with the accused where he asked if his stepmother could attend the motel to look after the pets, the officer confabulated the two issues when she incorrectly provided the pets as the explanation for why she believed that Mr. Jaglal wanted to contact his stepmother. Her memory is simply wrong on this point.

[34] I do not find that Constable Firth, or any of the officers, set out to violate the accused’s right. They were polite and cordial throughout the interactions. However, there is no question that Constable Firth was wrong in prohibiting Mr. Jaglal from contacting his stepmother. Constable Firth herself testified that she understood the duty to facilitate contact with a lawyer, even through a third party. No one has suggested that there were exceptional circumstances or any reason not to allow the contact. This, in my view, has become an established area of the law and clear violations of well-established legal standards makes the violation more serious; R. v. Balendra, 2019 ONCA 68, 372 C.C.C. (3d) 318 at para. 65; R. v. Noel, 2019 ONCA 860 at para. 34. Furthermore, as the Supreme Court noted in R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 44, in some cases the exclusion of evidence may be warranted solely on the basis of “clear violations of well-established rules governing state conduct”.

[35] While I do not find that the police acted in bad faith, I do not find that they acted in good faith given, as set out above, the breach of a well-established rule for no reason. This factor points towards exclusion.

The impact of the breach on Mr. Jaglal's Charter-protected interests.

[36] The Crown submits that the impact of the breach on Mr. Jaglal’s rights were lessened because he was able to speak with duty counsel, did not complain about the advice given to him, clearly understood the advice was not to speak to the police but still proceeded to speak with the police, as evidenced by his comment in his January 25, 2018 statement that he “waived every right I have.” Defence counsel agrees that it does assist the Crown’s s.24(2) argument that Mr. Jaglal spoke with duty counsel as opposed to not speaking to any lawyer. However, Defence counsel submits that Mr. Jaglal was in a vulnerable position, facing charges of first-degree murder, and that in deciding whether to speak to the police he needed to get advice from a lawyer he trusted so he could make an informed decision. Defence counsel submits that it matters who gives the advice.

[37] In assessing this factor, it is important to recall the Supreme Court of Canada’s comments in R. v. Grant at para. 95 on this issue:

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

[38] Doherty J.A. in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135 at para. 45 described the lifeline that rights to counsel provide:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

Also see R. v. Noel, 2019 ONCA 860 at paras 23-27

[39] The Crown submits that, in essence, nothing would have changed even if Mr. Jaglal had spoken to his counsel of choice, as he would still have spoken to the police. I cannot say that this is one of those cases referenced in R. v. Grant, where “it can confidently be said that the statement in question would have been made notwithstanding the Charter breach.” This was a critical juncture for Mr. Jaglal and he should have been given a reasonable opportunity to counsel with a lawyer that he (or, in this case, his stepmother) trusted. The messenger of the advice may have mattered. The impact of the breach was significant as it affected his ability to make an informed choice. This factor points to the statement being excluded.

Society's interest in the adjudication of the case on its merits

[40] With respect to illegally obtained statements, the Supreme Court of Canada in R. v. Grant stated at para. 97:

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

[41] The Defence argues that the exclusion of the statement does not gut the Crown’s case as the Crown has other evidence of significance to offer. The Crown states that this statement is the only direct evidence of the murder, otherwise the Crown’s case is circumstantial. The Crown submits that this is a first-degree murder prosecution and there is a significant societal interest in the case being determined on its merits and the statement is needed to assess Mr. Jaglal’s credibility.

[42] It is conceded that the January 25, 2018 statement was given voluntarily. However, it did not exist independently of the Charter breach. The Crown agrees that it is not in the same category as physical evidence. Furthermore, the statement’s importance to the prosecution’s case is unknown. While the Crown has indicated that the absence of the statement turns its case from a direct one to a circumstantial one, the Crown has not decided if it even wants to tender the statement as part of its case. At this stage the Crown just wants to ensure that it has the option to use it to test the accused’s credibility if he testifies. It is difficult to see how one can state that the illegally obtained statement is “necessary for a trial of the merits” when there are no assurances that it will even be entered into evidence. I note that the accused’s December 17, 2017 statement is available for cross-examination.

[43] In my view, this factor also points to the exclusion of the statement.

Conclusion

[44] For the reasons set out above, and considering all the factors, the January 25, 2018 statement is excluded.

The Honourable Justice H. Leibovich

Released: March 30, 2020

R. v Jaglal, 2020 ONSC 1744

Case Summary