Her Majesty the Queen v. Robert McGregor, 2020 ONSC 4802

minicounsel

Footnotes

Para. 32.
Para. 50.
Paras. 204 and 205.
Para. 76.
R. v. Evans, 1991 CanLII 98 (SCC), [1991] S.C.J. No. 31 at paragraph 31.
Para. 28.
Para. 30.
Para. 31.
Para. 30.
R. v. Bartle 1994 CanLII 64 (SCC), [1994] S.C.J. No. 74 at paragraph 18.
Para. 41.
Bartle at paragraph 18.
Bartle at paragraph 19.
R. v. McCrimmon 2010 SCC 36, [2010] S.C.J. No. 36 at paragraphs 17 and 18.
Para. 58.
Para. 45.
R. v. Ross 1989 CanLII 134 (SCC), [1989] S.C.J. No. 2 at paragraph 14.
Para. 14.
Prosper at paragraph 44.
Para. 30.
Paras. 33-36.
Para. 37.
Para. 44.
Para. 50.
Para. 14.
Para. 14.
Para. 69.
Para. 27.
Paras. 28 and 45.
Para. 38.
Para. 47.
Para. 53.
Para. 13.
Para. 25.
Para. 24.
E.T. at paragraph 29.
E.T. at paragraph 30.
R. v. E.C. 1997 CanLII 1636 (ON CA), [1997] O.J. No. 857 (C.A.) at paragraph 37.
E.T. at paragraph 31.
E.T. at paragraph 32.
E.T. at paragraph 35.
E.T. at paragraph 39.
Para. 36.
Para. 21.
Para. 49.
Para. 72.
Para. 74.
Para. 34.
Para. 36.
Para. 47.
Para. 28.
Para. 16.
Para. 22.
Para. 44.
Para. 43.
Para. 30.
Para. 12.
Para. 50.
Para. 57.
Para. 58.
Para. 55.
Paras. 116 and 117.
Para. 62.
Para. 48.
Para. 149.
Para. 50.
Para. 48.
Para. 164.
Paras. 45 and 48.

DATE: 20200813

BETWEEN:

Her Majesty the Queen

– and –

Robert McGregor

Lisa Wannamaker and Andrew Midwood, for the Crown

Christopher Hicks and Joanne Griffiths, for Mr. McGregor

HEARD: July 24 and 28, 2020

bird J.

Introduction

1Robert McGregor is charged with first degree murder in the death of Joanne MacKenzie who was killed sometime before noon on July 2, 2011. Ms. MacKenzie was stabbed to death and her throat was slit. Her body was ultimately found buried in a shallow grave in a field near Mr. McGregor’s home on the afternoon of July 6. Mr. McGregor is expected to admit having caused Ms. MacKenzie’s death, but may say he acted in self-defence. If his killing of Ms. MacKenzie is found to be unlawful, he will submit that the Crown cannot prove the requisite intent for murder.

2Mr. McGregor and Ms. MacKenzie dated in high school and shared a five-year-old daughter, MacKenzie. Ms. MacKenzie was MacKenzie’s primary caregiver, but Mr. McGregor had parenting time with his daughter regularly. MacKenzie was in his care on the weekend of July 2. Mr. McGregor contacted Ms. MacKenzie early on the morning of July 2 and asked her to meet with him to discuss a concern about their daughter. Mr. McGregor said that he was worried about the possibility that she was being sexually touched by Ms. MacKenzie’s new boyfriend, Drew Jessup.

3Ms. MacKenzie agreed to meet with Mr. McGregor and left Mr. Jessup’s home on foot to do so at approximately 9:00 a.m. on the morning of July 2. She told Mr. Jessup that she would return shortly. Ms. MacKenzie met up with Mr. McGregor near a Tim Horton’s in Peterborough and voluntarily got into his truck. A surveillance video later recovered by the police showed her doing so and the truck driving away. According to Mr. McGregor, he took Ms. MacKenzie to a field near his home where they smoked marijuana. They began discussing their daughter and Mr. McGregor’s concerns about Mr. Jessup. It was during the course of this discussion that Ms. MacKenzie was killed.

4Mr. McGregor returned to his home, spoke to his mother and made arrangements for his fiancée, Amanda Wells, to come over. When she did not return as expected, Ms. MacKenzie’s family became concerned and reported her missing that evening. The Peterborough police immediately began an investigation that included interviewing Ms. MacKenzie’s family and friends. Over the course of the ensuing days, the police spoke with Mr. McGregor on several occasions. He provided statements on July 2, 3 and 4 while out of custody. Generally speaking, he told the same story to the police each time. Mr. McGregor claimed that while he had arranged to meet with Ms. MacKenzie on the morning of July 2, she did not show up as expected. Mr. McGregor said that he got out of his truck to look for her and was beaten up by 5 or 6 unknown males. He then left the area and returned home, never having seen Ms. MacKenzie.

5Although the police did not believe Mr. McGregor’s version of events, there was no evidence to contradict it until they came into the possession of a surveillance video from Tim Horton’s showing Ms. MacKenzie getting into his truck. On the strength of that video, Mr. McGregor was arrested for the offence of obstruct police at 3:05 p.m. on July 5, 2011. Over the course of the ensuing 32 hours, Mr. McGregor provided several further statements while in police custody. Initially, he maintained his position that he had not seen Ms. MacKenzie on July 2. During his second in custody videotaped statement, Mr. McGregor confessed to stabbing her and burying her body in a field. Later that day, he took the police to the burial site. Mr. McGregor made further statements when he was back at the police station and also made an utterance en route to court on the morning of July 7, 2011.

6The Crown seeks a ruling that all statements made by Mr. McGregor were voluntary and are admissible. Mr. McGregor takes the position that the Crown cannot prove the voluntariness of any of his statements with the exception of those made on July 2. Further, he alleges that the statements made on July 5, 6 and 7 were obtained in contravention of sections 7, 9, 10(a) and 10(b) of the Charter and seeks to have them excluded pursuant to section 24(2).

7This is Mr. McGregor’s second trial. He was found guilty of first degree murder in a trial presided over by Mullins J. in 2015. A new trial was ordered by the Court of Appeal in Reasons for Judgment reported at 2019 ONCA 307, [2019] O.J. No. 1998. At the first trial, a voir dire was held into the admissibility of Mr. McGregor’s statements. Justice Mullins’ Ruling finding them all to be voluntary and admissible was not a ground of appeal.

8Due to the COVID-19 pandemic, I heard submissions via videoconference with the consent of all parties and Mr. McGregor who participated from the correctional centre he is housed in. The parties relied on the evidence given at the first trial and did not call any additional viva voce evidence.

Factual Background of the Statements

9After receiving the report that Ms. MacKenzie was missing, the Peterborough police immediately commenced an investigation which included interviewing her friends and family. The first contact the police had with Mr. McGregor was over the telephone. At 9:35 p.m., Constable Self of the Peterborough police went to Mr. McGregor’s home. He lived in a trailer behind a house occupied by his aunt. Mr. McGregor was not home but his aunt contacted him on his cellular phone and Constable Self spoke with him. Mr. McGregor agreed to return home to speak with the officer.

10At 10:05 p.m. on July 2, Constable Self spoke with Mr. McGregor at the side of the road in front of his home. Mr. McGregor was cooperative with the officer and spoke with him about his relationship with Ms. MacKenzie and his activities that day. Specifically, Mr. McGregor said that he had spoken with Ms. MacKenzie on the phone that morning and asked her to meet with him to discuss concerns he had about their daughter. According to Mr. McGregor, Ms. MacKenzie agreed to meet him at the Rehill parking lot, which was close to a Tim Horton’s in Peterborough. He and Ms. MacKenzie planned to go to Mr. McGregor’s home together from there to speak with their daughter, who was staying with him for the weekend.

11Mr. McGregor told Constable Self that he arrived in the Rehill parking lot at approximately 9:30 a.m. He was alone. Mr. McGregor said that he did not see Ms. MacKenzie and when he stepped out of his truck to look for her, he was attacked by five or six unknown males. He got back into his truck and drove home. Mr. McGregor sent Ms. MacKenzie a text message asking her if she had set him up to be attacked. He did not receive a response. Mr. McGregor advised that he and Ms. Wells had gone to visit Ms. MacKenzie’s drug dealer in Curve Lake that evening in an attempt to find her.

12Constable Self asked Mr. McGregor to lift up his shirt so that he could see if Mr. McGregor had any visible injuries. Mr. McGregor did as requested and the officer did not see any obvious marks. Constable Self did not believe Mr. McGregor’s account of being beaten up, but did not have grounds to arrest him for any criminal offence. Constable Self left Mr. McGregor’s property and resumed his investigation by speaking again with Mr. Jessup and Ms. MacKenzie’s mother.

13The defence concedes the voluntariness of Mr. McGregor’s conversations with Constable Self and does not raise any Charter arguments in relation to them. These two statements are admissible.

14The police returned to Mr. McGregor’s home at 4:05 a.m. on July 3. Ms. MacKenzie’s mother had told Constable Self that it was possible that her daughter was with Mr. McGregor and did not want her family to know. As a result, the police re-attended at Mr. McGregor’s home to speak further with him and determine whether Ms. MacKenzie was there. Because Mr. McGregor’s home was in a jurisdiction policed by the Ontario Provincial Police, the Peterborough police notified them of the investigation and their intention to go to the address.

15Constable Self arrived at Mr. McGregor’s home at 4:05 a.m. and was accompanied by four other uniformed officers. The officers knocked on the door of the trailer. When Mr. McGregor answered, Sergeant Wilson asked him to move away from the area immediately in front of the trailer so they could speak. Mr. McGregor said “I guess you got a warrant”. When an officer asked for what Mr. McGregor replied “to arrest me”. He was told there was no warrant for his arrest and that the officers just wished to speak further with him.

16While Sergeant Wilson spoke with Mr. McGregor, Constable Self entered the trailer to see if Ms. MacKenzie was inside. She was not, but Mr. McGregor’s girlfriend Ms. Wells was. Constable Self spoke with her. Ms. Wells said that she had arrived at the trailer at approximately 11:00 a.m. that morning and had not left the property since. This contradicted what Mr. McGregor had told the police about having gone to Curve Lake with Ms. Wells on the evening of July 2.

17Sergeant Wilson went over Mr. McGregor’s account of what he alleged happened in the Rehill parking lot and expressed some concerns about the logic of the story. The officer asked Mr. McGregor if he had ever harmed Ms. MacKenzie and he said that he had not. Mr. McGregor did say that she had some mental health issues which he wanted her to seek help for. Sergeant Wilson also asked Mr. McGregor about the fact that he had told members of Ms. MacKenzie’s family that his daughter was with him at the Rehill parking lot. Mr. McGregor denied saying this.

18Sergeant Wilson concluded his conversation with Mr. McGregor by telling him that the investigation was not criminal but rather was in relation to a missing person. He also told Mr. McGregor that the police may wish to speak with him again. Sergeant Wilson believed that Mr. McGregor was lying about having been assaulted in the Rehill parking lot but had no grounds to arrest him for any criminal offence. Sergeant Wilson did suspect that Mr. McGregor knew where Ms. MacKenzie was and advised him that he was a person of interest in the missing person investigation.

19Mr. McGregor next spoke with Constable Tweedie on the afternoon of July 4. This was a videotaped interview conducted at the Peterborough police station. Constable Tweedie was a member of an investigative unit of the Peterborough police and had been assigned to the case that morning. It was his intention to start fresh and to interview any people of significance including Ms. MacKenzie’s mother, her aunt, Mr. Jessup and Mr. McGregor.

20Constable Tweedie telephoned Mr. McGregor on the afternoon of July 4 and asked him to come in to give a formal statement. Mr. McGregor agreed to do so. The only concern he expressed was about the timing of the interview in relation to an appointment he had to meet with his family law lawyer that afternoon. Constable Tweedie testified that Mr. McGregor was very cooperative.

21Mr. McGregor drove to the police station on his own and entered through the front door used by members of the public. He waited in a lobby area until Constable Tweedie brought him into an interview room. This interview room was the one normally used to conduct interviews with victims of crime and witnesses. It was not used to interview people who were under arrest and in custody.

22Constable Tweedie had concerns about the veracity of Mr. McGregor’s prior statements about having been attacked in the Rehill parking lot on the morning of July 2. However, he did not have any evidence to contradict that version of events nor any grounds to arrest Mr. McGregor for a criminal offence. Notably, Constable Tweedie had not viewed the surveillance video from Tim Horton’s which showed Ms. MacKenzie getting into Mr. McGregor’s truck. It was not yet in the possession of the police. Another officer had viewed the video at the Tim Horton’s but did not realize the significance of it.

23Constable Tweedie’s videotaped interview with Mr. McGregor began at 2:46 p.m. on July 4 and ended at 4:20 p.m. At the outset, the officer told Mr. McGregor that their conversation was being recorded and gave him a KGB caution. Mr. McGregor asked if he needed a lawyer before signing the KGB form. Constable Tweedie told him that he was conducting a missing person investigation in relation to Ms. MacKenzie but also advised Mr. McGregor that he did have the right to speak to a lawyer and told him about the availability of duty counsel. While he did not read the formal rights to counsel from a police memobook, Constable Tweedie gave Mr. McGregor the substance of the information. He told Mr. McGregor that if, during the interview, he wanted to speak to a lawyer, he would stop and make a phone call for him.

24Further, he cautioned Mr. McGregor that anything that he did say could be used against him in court if he was more involved in Ms. MacKenzie’s disappearance than he had thus far admitted. Constable Tweedie told Mr. McGregor that he was not obliged to give a statement, that he was not detained and was free to leave at any time. Finally, the officer gave Mr. McGregor an informal secondary caution with respect to conversations he had previously with other police officers.

25The interview began with Constable Tweedie getting background information from Mr. McGregor about his life and his relationship with Ms. MacKenzie. The questions were open ended. Mr. McGregor gave long detailed answers to the questions he was asked. In terms of his activities on July 2, Mr. McGregor repeated the same story he had told officers previously. After giving him an opportunity to explain what happened, Constable Tweedie told Mr. McGregor that he found it strange that the altercation with the unknown males was not captured by any video surveillance cameras in the area. He said he was skeptical of Mr. McGregor’s account of being attacked. Mr. McGregor maintained his position and assured Constable Tweedie that he had been beaten up.

26Notwithstanding the fact that he expressed some disbelief of Mr. McGregor’s story, Constable Tweedie was, at all times, polite and respectful. He did not raise his voice or aggressively question Mr. McGregor. He pointed out his concerns but did not challenge Mr. McGregor’s responses. At the end of the interview, Mr. McGregor asked who he should call if he thought of any additional information. Constable Tweedie gave Mr. McGregor his business card and told him to call if anything arose. Once the interview was finished, Constable Tweedie escorted Mr. McGregor back to the lobby so that he could leave the building.

27At 12:30 p.m. on July 5, Constable Tweedie watched the surveillance video from Tim Horton’s for the first time. In his opinion, the video clearly showed Ms. MacKenzie getting into Mr. McGregor’s truck on the morning of July 2. After Ms. MacKenzie entered the vehicle, the truck drove away. This video was irrefutable evidence that Mr. McGregor had lied to the police about not having seen Ms. MacKenzie on the morning she disappeared. A decision was made to arrest him for the criminal offence of obstructing a police officer.

28Mr. McGregor was arrested for obstruct police at 3:05 p.m. on July 5. The arrest took place on a street in Peterborough. Mr. McGregor was read his rights to counsel and the primary caution. At that time, Mr. McGregor did not ask to call a lawyer.

29When he arrived at the Peterborough police station, Mr. McGregor was paraded before the Sergeant on duty. Sergeant MacLean reviewed Mr. McGregor’s rights with him and asked if he wanted to speak with a lawyer. Mr. McGregor said that he did want to speak to his own lawyer, Mr. McFadden.

30Constable Tweedie was tasked to call Mr. McFadden, which he did at 4:00 p.m. Constable Tweedie was told that Mr. McFadden was out of the province and that his associate, Trevor Burgis was in court. Constable Tweedie called the courthouse to arrange for a message to be delivered to Mr. Burgis. Mr. Burgis called the Peterborough police station and spoke with Mr. McGregor privately on the telephone from 7:23 p.m. to 7:41 p.m.

31While Mr. McGregor was in the cells waiting to speak with his lawyer, Constable Bell brought him dinner. When she did so, Mr. McGregor asked her whether Mr. Burgis had called yet and said he needed to speak with him because he had done something bad. Constable Bell did not ask Mr. McGregor any questions and he did not explain what he meant by his utterance. The officer left the cell area without having any further conversation with Mr. McGregor.

32In the meantime, the Peterborough police had asked for assistance with the missing person investigation from the Ontario Provincial Police. Detective Inspector Kari Dart worked in the Criminal Investigative Bureau of the O.P.P. and was assigned to attend at the Peterborough police station to provide assistance. Detective Inspector Dart became the case manager responsible for the investigation.

33Detective Inspector Dart requested the attendance of an O.P.P. officer with specialized training in conducting interviews after becoming aware that Mr. McGregor had previously lied to Peterborough police officers. In her testimony on the voir dire, Detective Inspector Dart said it was “paramount that a conversation needed to happen with Mr. McGregor”. She also testified that “our goal was to find Joanne MacKenzie and knowing that she was last seen and observed on video with Mr. McGregor, it was paramount that we speak with Mr. McGregor and get him to, well, I use the word “get”, but to express to him how incredibly important it is for him to tell us where she is so we could find her.”

34Detective Inspector Dart described Mr. McGregor as a person of interest in the disappearance of Ms. MacKenzie. She said the police had suspicions that he may have been involved in her disappearance but did not have reasonable and probable grounds to arrest him for anything other than obstruct police.

35Detective Sergeant Steven Coburn was the O.P.P. officer brought in for the specific purpose of questioning Mr. McGregor beginning on July 5. At that time, he was a 20-year veteran of the police service and was a member of what he referred to as the polygraph unit of the O.P.P. His role as a member of that unit involved administering polygraphs, conducting interviews and interrogations and teaching other officers about interviewing and interrogations.

36Detective Sergeant Coburn had no role in the investigation other than to interview Mr. McGregor. In his evidence before Mullins J., Detective Sergeant Coburn was asked “You understood that the reason why you were called into this case, though, was to interrogate Mr. McGregor about the whereabouts of Joanne MacKenzie, correct?” He responded “That’s correct. We wanted to find out where Miss MacKenzie was”.

37The following is a series of questions asked of and answers given by Detective Sergeant Coburn in cross-examination on the reason for his attendance at the Peterborough police station:

Q: So the purpose of your attendance then, you’d agree, was to get a statement from Mr. McGregor right?

A: Well, my purpose for being there, like I said, through the whole entire thing is to actually find out what the truth is.

Q: Right. And how are you going to do that, Detective Sergeant Coburn?

A: Yeah. Interview Robert McGregor.

Q: Right. And if he remained silent, you’re not going to achieve your goal are you?

A: That’s his right, but I’m going to try the best I can.

Q: Right. So, again, I think you’d agree with me then that the purpose of your attendance was to get a statement from Mr. McGregor, right?

A: To get him to speak, yes.

Q: Okay. And that was the only person that you were tasked with interviewing, right?

A: That’s correct.

Q: Okay. You were not advised of any other people that the local police wanted you to interview, right?

A: Nope. That was, my specific goal was to speak to Mr. McGregor.

38Detective Sergeant Coburn began his first videotaped statement with Mr. McGregor at 11:16 p.m. on July 5. The interview took place in a small room with a table and two chairs. Mr. McGregor sat in a corner with Detective Sergeant Coburn across from him in front of the door. The tone of the interview was friendly. Detective Sergeant Coburn introduced himself and brought coffee for himself and Mr. McGregor.

39The interview with Mr. McGregor began with Detective Sergeant Coburn stating that his understanding was that Mr. McGregor had been arrested earlier that day for obstructing justice. While Mr. McGregor was actually under arrest for obstruct police, nothing turns on the fact that Detective Sergeant Coburn referred to it as obstructing justice. Mr. McGregor immediately advised the officer that his lawyer told him to sit there and wait until the morning and that he wasn’t supposed to say anything at all. Mr. McGregor said his only understanding of the charge he was facing was that it was in relation to his ex-girlfriend, Joanne MacKenzie.

40Detective Sergeant Coburn acknowledged the legal advice Mr. McGregor had been given saying he wasn’t surprised to hear that but that Mr. McGregor was almost 26 years old and could make decisions on his own. He then asked Mr. McGregor if he was satisfied with the advice he had received from his lawyer. Mr. McGregor said that he would still like to talk to his lawyer a little more but Mr. Burgis advised him to “keep my mouth shut and wait til tomorrow”.

41Mr. McGregor went on to explain that Mr. Burgis had told him that he couldn’t really talk over the phone and that an in-person conversation the following morning at the courthouse would be better. It was clear throughout this statement that Mr. McGregor expected to be taken to court the following morning. Further, he expected to meet with Mr. Burgis in person at the courthouse.

42After the initial discussion about his consultation with counsel, Mr. McGregor began asking Detective Sergeant Coburn if he could smoke a cigarette. Detective Sergeant Coburn initially told Mr. McGregor that he would see what he could do about that later on. Mr. McGregor had cigarettes in his possession when he was arrested and they were with his property. Some time later, Detective Sergeant Coburn retrieved Mr. McGregor’s cigarettes and he was permitted to smoke as many as he wished in the interview room while the conversation continued.

43Detective Sergeant Coburn then turned to the missing person investigation in relation to Ms. MacKenzie. He told Mr. McGregor that he would be “negligent” in the circumstances if he didn’t let Mr. McGregor know that investigations of this nature often end in homicide. He advised Mr. McGregor that “if it is revealed at the end of the day that you’re responsible for anyway of Joanne’s disappearance and if it does lead to homicide you know, then you may be charged with murder”.

44Detective Sergeant Coburn then asked Mr. McGregor what his understanding of his rights was. Mr. McGregor replied “Say nothing or say everything or whatever. I, right to counsel, and to have a lawyer present while you question me”. Detective Sergeant Coburn told Mr. McGregor that he did not have the right to have a lawyer present during questioning. He then went into a long explanation of the Charter which included saying:

First of all, you’re under arrest for obstructing justice but you’re not under arrest for homicide okay. So, if any time you want me to stop this conversation or just, Steve I don’t want to talk to you anymore, just let me know and that fine with me, okay. If at any time you want to stop this process just let me know and that’s not an issue for me whatsoever, okay. If you want to phone a lawyer please advise me and I’ll make a phone available for you. In fact, Robert, should you wish to speak to a lawyer at anytime today you know, be sure to let me know and I’m going to immediately get you a phone okay.

45Detective Sergeant Coburn went on to explain the availability of legal aid. He repeated that he would “immediately” get a phone for Mr. McGregor if he wished to talk to a legal aid lawyer or his own lawyer at any time. He then asked Mr. McGregor if he wanted to speak with a lawyer. Mr. McGregor replied “I would love to, but he said to wait until tomorrow morning”. At that point, Detective Sergeant Coburn said “Okay. But that’s him. Duty counsel is available for you at anytime. It’s 24-7. It’s 1-800-265-0451. I can make that phone call for you. It’s toll free and you can speak to a lawyer in a private booth.” Mr. McGregor said “He said it would be in my best interest to wait til tomorrow morning. That’s, I’ll go by his advice”.

46More discussion followed and Detective Sergeant Coburn said “So, Mr. Burgis, so he said that he’s not going to speak with you until tomorrow morning which is fair. But you can still speak to duty counsel if you want. That’s not an issue for me”. Mr. McGregor responded “I trust his advice. He’s never steered me wrong before.” Detective Sergeant Coburn said “Okay. But it’s your decision. So that’s what I’m telling you. We can call Mr. Burgis and if he answers, great”. Mr. McGregor said “Oh, I know he won’t”. Detective Sergeant Coburn said “He won’t. Okay. But we can still call duty counsel for you and you can speak to them.” Mr. McGregor replied “Got no reason really to speak to duty counsel right now. I just wanna, you know, why I’m being charged. That’s it”. At this point, it was 11:32 p.m.

47Mr. McGregor said that obstruction of justice could be a wide range of things but was willing to help if he could. Detective Sergeant Coburn told him that he wasn’t talking about the obstructing justice charge. He said they had “kind of dealt with that” and were dealing with homicide. He then said “And they’re two separate things. So, in regards to Mr. Burgis he said, you said he won’t speak to you until the morning. But do you want to speak to duty counsel. Do you want to speak to legal aid?”.

48Mr. McGregor then asked if he was being charged with “homicide or anything like that”. Detective Sergeant Coburn told him that he may be charged with homicide if, at the end of the investigation it was revealed that he was responsible for Ms. MacKenzie’s disappearance and it goes towards homicide or murder. Mr. McGregor said he understood.

49Once again, Detective Sergeant Coburn asked “Do you want to speak to legal aid?” Mr. McGregor said “No, I’ll wait and talk to Trevor”. The substantive portion of the interview then began. Beginning at 11:55 p.m., Mr. McGregor started making repeated requests to speak to his lawyer. Detective Sergeant Coburn responded in different ways. He did not, as he said he would, immediately stop to get Mr. McGregor a phone. When Mr. McGregor stated again that he wanted to talk to his lawyer at 11:56 p.m., Detective Sergeant Coburn said “Let me tell you something, Robert. What I found always, is no matter what, you can never go wrong with the truth, okay.”

50A couple of minutes later, in response to Detective Sergeant Coburn saying they were talking about the truth, Mr. McGregor repeated his desire to speak to his lawyer first. He told Detective Sergeant Coburn that he had given Ms. MacKenzie his word about something and he didn’t want the police to think he was not being forthcoming. Detective Sergeant Coburn did not acknowledge this request to speak to counsel and continued to talk about Ms. MacKenzie being missing.

51The transcript of the interview is replete with more requests from Mr. McGregor to speak with Mr. Burgis. He also said repeatedly that he wanted to follow his lawyer’s advice not to answer questions.

52A significant moment in the interview occurred when Detective Sergeant Coburn pulled up the surveillance video from Tim Horton’s on his computer for Mr. McGregor to watch. There is no evidence that Mr. McGregor had ever seen the video or been told of its existence prior to this time. Detective Sergeant Coburn began showing Mr. McGregor the video at 1:16 a.m., exactly two hours into the interview.

53Detective Sergeant Coburn moved his chair closer to Mr. McGregor, leaned towards him and asked “Okay, what’s the video tape going to show me? I’ve seen it already.” Mr. McGregor replied “I don’t know, honestly. Whatever it shows you. But either way, can I just ask to stop this so that way I’m not going to incriminate myself or incriminate you or anything.” Detective Sergeant Coburn answered “Well, you’re not going to incriminate me cuz”. Mr. McGregor interjected “No, but you know what I mean. Incriminate myself or anything. I’m asking to stop this”.

54Detective Sergeant Coburn asked Mr. McGregor about the truck that was visible in the surveillance video. He told Mr. McGregor that it was clearly his truck to which Mr. McGregor replied “Now’s the time I would like this to stop”. Detective Sergeant Coburn said “Okay. It can’t stop.” Mr. McGregor said that he didn’t want to be disrespectful. Detective Sergeant Coburn told him there were inconsistencies in his statements, that Ms. MacKenzie had gotten into his truck and hadn’t been seen since and said “that’s a problem”. He then told Mr. McGregor “Alright. And this can’t stop because I’ve got a young twentyish young girl that hasn’t come home for almost four days now and I’ve got a five year old girl that doesn’t know where her mom is and this is not gonna stop.” Mr. McGregor said “okay” and Detective Sergeant Coburn repeated “It can’t stop”. Mr. McGregor then said “Okay, but I mean like til I talk to my lawyer I want to stop”. Detective Sergeant Coburn responded “The cog in the wheel is you, right. Okay. It’s you alright and we need the truth.” He continued by telling Mr. McGregor that they needed to bring Ms. MacKenzie home in whatever state she was in and that he was the person who could bring her home.

55From this point onwards, Mr. McGregor made many more requests to speak to his lawyer. At 1:26 a.m., Detective Sergeant Coburn, after a series of lengthy soliloquies ended by saying “Having said that, we gotta bring Joanne home. Okay. We gotta deal with it, okay. And we both know that right”. Mr. McGregor said “Right. Well, if you let me talk to my lawyer I will be forthcoming and everything else, but let me talk to my lawyer first”. Detective Sergeant Coburn said “Robert, we’re past that, okay.”

56At 1:30 a.m., after Mr. McGregor repeated his desire to speak to his lawyer, Detective Sergeant Coburn did offer to call him. Mr. McGregor declined the offer saying that he didn’t want to wake Mr. Burgis up. Detective Sergeant Coburn asked again “Do you want to speak to Mr. Burgis right now?” Mr. McGregor answered “If I could speak to him face to face, sure. But I doubt it”. After further discussion about talking to Mr. Burgis on the phone, Mr. McGregor was asked again if he wanted to talk to him and he said “not right this second”.

57Shortly after that, Detective Sergeant Coburn again told Mr. McGregor that they had to get to the truth. Mr. McGregor reiterated his wish to speak to Mr. Burgis in the morning so that he could get proper advice on what to do. Detective Sergeant Coburn said “you don’t need advice on the truth Robert”.

58A few minutes later, Detective Sergeant Coburn was pressing Mr. McGregor to tell the truth and said “Robert, I’ll tell you right now, hiding behind people, hiding behind lawyers is not going to bring Joanne home. The truth will bring Joanne home”.

59The conversation continued with Mr. McGregor repeatedly saying that he wanted to speak with his lawyer. Detective Sergeant Coburn told him that Ms. MacKenzie would still be alive if he hadn’t called her. Mr. McGregor said she was still alive. Detective Sergeant Coburn responded “That’s the problem you got right now is that if you can tell me where she’s alive and you’re not doing it, what does that look like?” Mr. McGregor replied “I know it looks bad on me but that’s what my lawyer told me to do is not to say anything”. Detective Sergeant Coburn said “You see, that’s the foolish talk. If you knew she was alive and you could bring her home and let her daughter know that mommy’s alive and you refused to do it, what does that look like?”.

60Shortly after this exchange, Detective Sergeant Coburn asked Mr. McGregor what his mother would want him to do. In the course of that discussion the officer said “The issue is why would you need a lawyer present to tell the truth because if you had nothing to do with it just tell the truth.” Mr. McGregor started to answer by referring to the fact that he was put in handcuffs and Detective Sergeant Coburn interrupted stating “Robert, we both know the only reason why you would want a lawyer present because you know when you tell the truth it’s only going to tell you what you did to Joanne and we both know that right, cuz if you did nothing to Joanne you wouldn’t need a lawyer present but we both know that that’s the reason why.”

61As the interview continued, Mr. McGregor made it clear to Detective Sergeant Coburn that he expected to appear in court later that morning. He referred to the fact that Mr. Burgis had told him that he would “deal with me tomorrow, deal with it tomorrow morning at arraignment”.

62At 2:01 a.m., Mr. McGregor told Detective Sergeant Coburn that he didn’t want to look guilty. Detective Sergeant Coburn said “Well, you do.” Mr. McGregor replied “I know I do. It’s not what I want” to which Detective Sergeant Coburn said “It’s, really guilty okay.” Mr. McGregor then said he’d had the worst luck his whole life. Detective Sergeant Coburn told him “Well, what gonna happen is it’s gonna get even worse unless we deal with these issues right now.”

63Towards the end of the interview, Mr. McGregor said “I just wanna get this over with but I really want to wait”. Detective Sergeant Coburn replied “Robert, the only way to get over with is to tell us where she is”. This interview with Mr. McGregor ended at 2:37 a.m. and he was returned to his cell.

64During the course of this videotaped interview, Mr. McGregor said he wanted to speak with his lawyer 31 times. He also asserted his right to remain silent 10 times. However, whenever he said that he wanted to talk to his lawyer, it was clear that Mr. McGregor did not want to continue speaking with Detective Sergeant Coburn until he had done so. Many times when making these requests, Mr. McGregor apologized to the officer and said he was not trying to be disrespectful. He simply wanted the opportunity to exercise his rights as Detective Sergeant Coburn had promised him he could do at the outset.

65In testimony before Mullins J., Detective Sergeant Coburn was asked why he did not end the interview when Mr. McGregor said he wanted to stop. He answered “I kept on proceeding, Your Honour, because this was a missing person investigation and, like I said from the onset, time is of the essence. So we will, we’re gonna continue on because our goal was to find Joanne MacKenzie.”

66In cross-examination, Detective Sergeant Coburn was asked to confirm that he didn’t permit Mr. McGregor to stop the interview despite his repeated requests and he said “I don’t stop the interview because of the investigation”. He went on to explain that he could not stop the investigation because a young woman was missing. Detective Sergeant Coburn testified that he respected the right to remain silent but also understood that he is still entitled to speak to the subject and let him know how the investigation was proceeding.

67However, further into his cross-examination, Detective Sergeant Coburn was asked again about his alleged failure to respect Mr. McGregor’s right to remain silent. He testified “Well, I wouldn’t say “respect”. So, it’s a missing person investigation, so I cannot end the interview, to, I cannot stop the investigation. I’ve gotta keep on proceeding. I’ve got to try and find it. I’ve got an indication where he, she, he might know where she’s alive and so, he doesn’t have to talk to me. I totally understand that. That doesn’t mean I can’t talk to him.”

68Detective Sergeant Coburn was also asked about his failure to permit Mr. McGregor to speak to counsel during the statement. He referred to the judgment of the Supreme Court of Canada in R. v. Sinclair 2010 SCC 35, [2010] S.C.J. No. 35 and said that there was no change of jeopardy during his interview with Mr. McGregor. Further, Detective Sergeant Coburn said that he did not feel that he had any legal obligation to stop the interview and wait until the morning because “I knew he had already spoken to his lawyer of choice and he was satisfied with that advice.”

69While Detective Sergeant Coburn was correct in his understanding of Sinclair, he failed to appreciate that Mr. McGregor had not had an initial consultation with counsel in relation to the investigation into Ms. MacKenzie’s disappearance. He had only spoken to Mr. Burgis about the charge of obstruct police.

70Constable Tweedie made several attempts to contact Mr. Burgis early on the morning of July 6. At 8:00 a.m., Mr. Burgis returned Constable Tweedie’s phone call. He testified that Mr. Burgis agreed to attend the police station to speak with Mr. McGregor. Mr. McGregor spoke privately with Mr. Burgis from 8:54 a.m. until 9:20 a.m. At the conclusion of his meeting with Mr. McGregor, Mr. Burgis advised Constable Tweedie that Mr. McGregor wanted to speak further with the police to give them some additional information.

71During the voir dire at the first trial, Constable Tweedie was asked why the investigative team permitted an in-person consultation between Mr. McGregor and his lawyer that morning. He replied “I believe it was in relation to just proceeding with the investigation that Mr. McGregor was indicating that he had more information regarding Joanne’s condition or safety. So, it was something that was discussed to have him talk with his counsel and to see if things could proceed further, that we could, we’re still in the stage where we’re determining what her condition, where her safety’s at, at that point”.

72Detective Sergeant Coburn’s second interview with Mr. McGregor began at 9:51 a.m. on the morning of July 6. The interview took place in the same room as the first interview. Detective Sergeant Coburn returned to the Peterborough police station at 7:00 a.m. that morning. The officer’s return to the station is significant in determining what the intention of the police was with respect to Mr. McGregor. If I find that his first videotaped statement was not voluntary or was obtained in a manner that infringed the Charter, I must determine whether the July 6 statements are tainted as a result.

73In light of Detective Sergeant Coburn’s evidence that his only role in the investigation was to “interrogate” Mr. McGregor with a view to finding out where Ms. MacKenzie was, I find that his re-attendance at the police station early on the morning of July 6 was for the purpose of conducting a further interview with Mr. McGregor.

74The fact that Constable Tweedie invited Mr. Burgis to attend at the police station to speak with Mr. McGregor is consistent with the police intending to hold Mr. McGregor for further investigation rather than sending him to bail court that morning. Mr. McGregor said repeatedly during his first videotaped statement that he had made arrangements with Mr. Burgis to speak to him at the courthouse that morning. Constable Tweedie was monitoring this interview and would have known that. If the police intended to take Mr. McGregor to bail court without re-interviewing him, there would have been no reason for Mr. Burgis to have come to the police station.

75Detective Sergeant Coburn was asked during his testimony before Mullins J. what prompted his second interview with Mr. McGregor. In examination in chief he answered:

Again, this is missing person investigation. We need to find Joanne. I know he had spoken with Mr. Burgis, which is what he had requested during the first interview and that would have been facilitated. I wanted again to speak to Mr. McGregor, again, with the objective of trying to find Ms. MacKenzie.

76In cross-examination it was suggested to Detective Sergeant Coburn that the police facilitated the meeting with Mr. Burgis in the hope that Mr. McGregor would then provide them with additional information. Detective Sergeant Coburn replied:

“Who knows what he would say, but he wanted to speak to Mr. Burgis so we allowed that conversation. And whether he wanted to speak to us afterwards, whatever admission gleaned we would see what he would say”.

77Based on all of the evidence, I am satisfied that the police intended to speak to Mr. McGregor again on the morning of July 6 and did not do so only because Mr. Burgis told them that Mr. McGregor had further information to give them.

78At the outset of the July 6 video statement, Mr. McGregor told Detective Sergeant Coburn that he felt a lot better after speaking with Mr. Burgis. He also said that he was worried because he had lied to the police previously. Mr. McGregor said that his lawyer told him that as long as he told the truth he should be fine. Detective Sergeant Coburn responded by saying “The bottom line is Robert, it is the truth. We talked about that last night.”

79Detective Sergeant Coburn advised Mr. McGregor that he did not have to say anything further but that anything he did say could be used as evidence in court. He also gave him a brief secondary caution in relation to anything Mr. McGregor had told other police officers. Detective Sergeant Coburn did not relate the secondary caution to his first interview with Mr. McGregor.

80Detective Sergeant Coburn told Mr. McGregor that if it was revealed that he was responsible for the murder of Ms. MacKenzie he could be charged with murder. He then reviewed his rights to counsel with him including the availability of duty counsel. Detective Sergeant Coburn asked Mr. McGregor if he was satisfied with the legal advice he had received from Mr. Burgis and Mr. McGregor said it was great. Detective Sergeant Coburn advised Mr. McGregor again that he did not have to speak with the officer.

81Detective Sergeant Coburn then told Mr. McGregor that he was there to listen and invited him to explain what he did the weekend Ms. MacKenzie went missing. At that point, Mr. McGregor launched into a detailed account of what he did on July 1 and 2. During this portion of the interview, Detective Sergeant Coburn said very little. Mr. McGregor spoke at length and told a story about having seen Ms. MacKenzie get into a van to go to Windsor.

82After Mr. McGregor gave his new account, Detective Sergeant Coburn played him the Tim Horton’s surveillance video and engaged in a question and answer with Mr. McGregor. During this portion of the interview, Detective Sergeant Coburn asked questions to clarify what Mr. McGregor was saying but did not challenge his version of events. It was not until 11:12 a.m. that Detective Sergeant Coburn began to confront Mr. McGregor with the obvious difficulties in his story.

83Within minutes, the officer made it clear that he did not believe Mr. McGregor’s Windsor story. Further, he said that he knew Ms. MacKenzie was not going to come back. He told Mr. McGregor “you were the last one with her Robert, the last one with her and this is not gonna go away, okay. This will never go away until we bring her home to MacKenzie”.

84The conversation continued until 11:23 a.m. when Mr. McGregor asked Detective Sergeant Coburn to step outside of the interview room with him “so that it’s not recorded”. The officer explained the importance of recording their conversation and Mr. McGregor told him it was fine to bring the audio recorder. He did not want to be on video but just wanted to talk to Detective Sergeant Coburn “man to man”.

85Detective Sergeant Coburn asked Mr. McGregor to just tell him what he wanted to say. Mr. McGregor said “I don’t wanna say it over this. I would rather talk to Trevor before I say something like that, okay. So if you don’t mind just stepping outside the door for two seconds with me and you, we can step back in. I just want your advice.” Detective Sergeant Coburn told Mr. McGregor that he could not give him advice.

86The two men did leave the interview room. Detective Sergeant Coburn’s audio recorder captured their conversation. Mr. McGregor said that he would “full out admit to everything” but wanted to go to his home to apologize to his daughter, talk to his fiancé and smoke marijuana. Detective Sergeant Coburn told him that he would have to talk to people about that request and said he needed to know where Ms. MacKenzie was. Mr. McGregor said that she was buried in a field near his house. He said Ms. MacKenzie had pulled a knife on him and he had used it on her.

87Mr. McGregor and Detective Sergeant Coburn returned to the interview room and the video resumed. Mr. McGregor suggested talking to a lawyer to work out a deal. Mr. McGregor was distraught and said that he didn’t remember what happened. At 11:32 a.m., Detective Sergeant Coburn advised him that he was under arrest for first degree murder and read him his rights to counsel.

88When asked whether he wanted to call a lawyer, Mr. McGregor said he wanted to talk to his mother. He then said that he knew a lawyer would tell him to keep his mouth shut but he wanted the police to be able to put the matter to rest. He then said that if he could do what he asked for he would be up for anything. Detective Sergeant Coburn confirmed that Mr. McGregor wanted to apologize to his daughter and smoke marijuana.

89After some further brief conversation, Mr. McGregor decided that he did wish to speak with duty counsel. Detective Sergeant Coburn told him he would call duty counsel for him. Mr. McGregor asked the officer to stay with him because he did not want to be alone. Detective Sergeant Coburn did leave the room to contact duty counsel and to get Mr. McGregor a coffee.

90Mr. McGregor spoke with duty counsel from 11:56 p.m. to 12:05 p.m. After this consultation, the conversation between Mr. McGregor and Detective Sergeant Coburn continued. It was primarily focused on Mr. McGregor’s desire to see his daughter, mother and fiancé and perhaps smoke marijuana. Detective Sergeant Coburn did not immediately tell him that was not possible. The two men had a lengthy conversation about various ways in which Mr. McGregor’s request could be accommodated.

91For instance, Detective Sergeant Coburn said that he could talk to the inspector about whether Mr. McGregor could see his daughter but said they had to have the full truth first. He did make it clear to Mr. McGregor that it would not be possible for him to smoke marijuana. As the negotiations continued, Mr. McGregor suggested that he talk to the judge or the Crown. Detective Sergeant Coburn told him that he would not be speaking to a judge and that the Crown would need to know the truth first.

92For a considerable period of time, Detective Sergeant Coburn led Mr. McGregor to believe that speaking to his daughter, mother or fiancé might be possible. During these exchanges, the officer told Mr. McGregor that they needed to make progress. At various points Mr. McGregor said that he wanted to speak to a lawyer again. During one of these discussions, Detective Sergeant Coburn confronted Mr. McGregor with the fact that he had lied to Mr. Burgis earlier that morning and asked if he was going to lie to him again.

93Mr. McGregor very doggedly pursued his desired goal for a considerable period of time during the interview. He came up with new variations of his plan including a suggestion that he be released on bail for a day. Detective Sergeant Coburn made it clear that he did not control whether someone got bail and said that he had never heard of that scenario occurring.

94Mr. McGregor did speak with Mr. Burgis again on the telephone between 1:31 p.m. and 1:41 p.m. After that consultation, Mr. McGregor continued to pursue his request to speak with his daughter, mother and fiancé. Detective Sergeant Coburn agreed to call Mr. McGregor’s mother and to have MacKenzie and Ms. Wells at the McGregor home too. Following that, Mr. McGregor would take them to Ms. MacKenzie’s body. Detective Sergeant Coburn also said “So we’re gonna go do that. I just don’t know if it can work. You’re gonna have my word that you and go and speak to those people but I think we should”. Mr. McGregor interjected “but it’s gonna hafta be before. I can’t do it after. Like I said, I hafta explain to my daughter”.

95The negotiations continued with Mr. McGregor asking for a guarantee that he would be able to speak to his family. After some further conversation, Detective Sergeant Coburn shifted his position, telling Mr. McGregor that perhaps he could see his family in jail or telephone them.

96Mr. McGregor left the police station at approximately 2:30 p.m. with several officers including Detective Sergeant Coburn. The deal Mr. McGregor had proposed was not in place. Nevertheless, he agreed to take the officers to the location where he had buried Ms. MacKenzie’s body. The trip to and from the scene was captured on audio. There was some video taken at the scene and on the drive back to the police station.

97Mr. McGregor directed the police to a field near his home and showed them where he had buried Ms. MacKenzie’s body. He also said that he threw the knife into a nearby creek.

98When they arrived back at the police station, Detective Sergeant Coburn put Mr. McGregor back in an interview room and left him alone for some time. The video continued to record Mr. McGregor. He was very upset and repeatedly said that he was sorry and scared. He did not want to be alone. He also thanked the police for “everything” and said he couldn’t take it anymore. Detective Sergeant Coburn returned with a coffee for Mr. McGregor and spoke with him until 5:43 p.m. During that time, the officer assisted Mr. McGregor in writing a short letter of apology to his daughter.

99A forensics officer came in to seize Mr. McGregor’s clothing and take photographs of him. She was not attempting to take a statement from Mr. McGregor and did not ask him questions about the homicide. He made several statements to her about his involvement in the offence. Mr. McGregor also told this officer that all of the police officers he had dealt with since his arrest had been nice to him which is why he confessed.

100Because Mr. McGregor was emotionally distraught, Detective Inspector Dart arranged for a police officer to sit near him in the cell area to monitor him. Constable Sejrup was assigned to this duty at approximately 7:00 p.m. on July 6. He had assisted in the execution of one search warrant related to the investigation but had no knowledge of the case. Constable Sejrup was not even aware of what charges Mr. McGregor was facing. He was in possession of an audio recorder because the cell area was video but not audio recorded.

101When Constable Sejrup began monitoring Mr. McGregor, he read him a secondary caution. He then sat down in a chair and read a magazine. At 9:32 p.m., Mr. McGregor called Constable Sejrup over to the cell and asked to talk to him. Constable Sejrup agreed and told Mr. McGregor that their conversation would be recorded. Mr. McGregor provided information about the homicide of Ms. MacKenzie and at one point demonstrated the stabbing and cutting of her throat.

102Mr. McGregor was removed from his cell at 8:56 a.m. on July 7 for transport to court. While en route, Mr. McGregor made inculpatory utterances that were overheard and later noted by the transporting officers. The officers did not ask Mr. McGregor any questions or respond to his utterances.

Issues

103Has the Crown proven that Mr. McGregor’s statements were voluntary?

104Were Mr. McGregor’s videotaped statements to Detective Sergeant Coburn obtained in violation of sections 7, 10(a) or 10(b) of the Charter?

105If there was a violation of section 7, 10(a) or 10(b) in relation to any of Mr. McGregor’s statements or if the Crown has failed to prove voluntariness, are subsequent statements tainted?

106Were Mr. McGregor’s section 9 rights violated because he was not brought before a Justice of the Peace in accordance with section 503 of the Criminal Code of Canada on the charge of obstruct police?

107If there was a Charter violation in relation to any of Mr. McGregor’s statements should they be excluded pursuant to section 24(2)?

The July 3 Statement

108The only issue Mr. McGregor raises with respect to the admissibility of the statement he made to Sergeant Wilson is the fact that he was not given a caution prior to being questioned. It is his position that he was already a suspect at that time.

109The case law does not provide one clear definition of the term “suspect”. However, in R. v. Singh 2007 SCC 48, [2007] S.C.J. No. 48, the Court adopted the following statement about when a person being interviewed should be cautioned: “The warning should be given when there are reasonable grounds to suspect that the person being interviewed has committed an offence.”¹

110In R. v. Morrison [2000] O.J. No. 5733 (S.C.J.), Trafford J. stated that a person is a suspect when, objectively viewed, the evidence collected during an investigation tends to implicate him in a crime.²

111In the early morning hours of July 3 when the police went to speak to Mr. McGregor for the second time, the investigation into Ms. MacKenzie was still in its early stages. She had been missing for less than 24 hours. Although Constable Self did not believe Mr. McGregor’s story about having been attacked in the Rehill parking lot, there was not yet any evidence to contradict him. More importantly, the police had no evidence that Mr. McGregor did meet up with Ms. MacKenzie on the morning of July 2.

112In addition to speaking with Mr. McGregor that morning, the police also interviewed Ms. MacKenzie’s mother and Mr. Jessup. I find that Mr. McGregor was not being treated any differently than anyone else who was closely associated to Ms. MacKenzie. The police were attempting to gather information from people whom they believed could assist in locating Ms. MacKenzie. While the fact that she was missing was very concerning, there were not, at this early stage, objective grounds to believe that anyone had committed a criminal offence. As a result, the police were not obligated to caution Mr. McGregor prior to speaking to him.

113There is otherwise nothing about the circumstances of Mr. McGregor’s conversation with Sergeant Wilson that gives rise to a concern about the voluntariness of anything that he said. None of the classic voluntariness issues exist in terms of inducements, threats or an atmosphere of oppression. The discussion was adequately recorded by Sergeant Wilson in his memobook. The conversation was relatively brief and Mr. McGregor expressed no reluctance about speaking to the police.

114As a result, I am satisfied beyond a reasonable doubt that Mr. McGregor’s statements to the police at his home on the morning of July 3 were voluntary and are admissible.

The July 4 Statement

115When Mr. McGregor attended at the police station to speak with Constable Tweedie on the afternoon of July 4, Ms. MacKenzie had been missing for approximately 54 hours. At this point it was, at a minimum, reasonable to suspect that she had been harmed and possibly killed. However, the police still did not have any evidence that Mr. McGregor had seen Ms. MacKenzie on the morning of July 2.

116Although an officer had watched the Tim Horton’s surveillance video, she did not realize the significance of it. I accept that when Constable Tweedie interviewed Mr. McGregor on July 4, he was not aware that the video showed Ms. MacKenzie getting into his truck on July 2. It was not until 12:30 p.m. the following day that Constable Tweedie watched the Tim Horton’s video and made that important observation.

117Constable Tweedie had taken over the investigation into Ms. MacKenzie’s disappearance on the morning of July 4. It was his intention to re-interview the people closest to her in case other officers had missed anything of importance. His list of people to re-interview included Mr. McGregor, Ms. MacKenzie’s mother, aunt and Mr. Jessup. Constable Tweedie knew about Mr. McGregor’s account of what happened to him on July 2 and had reservations about the veracity of that story. However, I accept that he did not have grounds to arrest Mr. McGregor for any criminal offence. Nor were there reasonable grounds to suspect that he had committed a specific criminal offence.

118At most, the police believed that harm had come to Ms. MacKenzie and that Mr. McGregor had more information about her disappearance than he had disclosed thus far. I recognize that his situation was far more precarious by this time than it was when he spoke with Sergeant Wilson. However, I am of the view that Mr. McGregor was not yet a suspect in relation to a criminal offence.

119In any event, Constable Tweedie did provide Mr. McGregor with the substance of a primary caution, even though it was not read from a standard card. The officer told Mr. McGregor that the statement was being recorded and that if he provided the police with false information he could be charged with a criminal offence. It was made clear to Mr. McGregor that he was being interviewed in relation to a missing person investigation and that anything he said could be used in court if it was discovered that he was involved in Ms. MacKenzie’s disappearance. Further, Mr. McGregor was told that he was not detained, could leave at any time and had the right not to speak with Constable Tweedie.

120Mr. McGregor was also advised that he should not be influenced by any conversations he had already had with other police officers. In addition, he was told that he had the right to speak to a lawyer and that free legal advice through duty counsel was available.

121Mr. McGregor does not allege that he was detained while giving this statement. He does not submit that he was subject to any threats, inducements or oppressive circumstances. His only complaint in relation to his statement to Constable Tweedie is the fact that he was not read the formal primary caution and told that he was a suspect.

122In light of my finding that Mr. McGregor was not yet a suspect in relation to a criminal offence, it was not necessary for Constable Tweedie to caution him. Mr. McGregor was being interviewed as an important witness in the missing person case.

123Even if Mr. McGregor was a suspect at this time, the information given to him by Constable Tweedie provided him with the substance of a primary caution, a secondary caution and rights to counsel.

124In R. v. E.B. 2011 ONCA 194, [2011] O.J. No. 1042 (C.A.), the court found that not much turned on whether the accused was a suspect at the time he was interviewed. Whether or not a caution was read is only one factor to be considered in the voluntariness analysis. In that case, the trial judge carefully scrutinized the circumstances and relied on the fact that the accused attended the police station voluntarily, was told the statement would be under oath or affirmation, knew the police thought the child’s death was suspicious, was told he did not have to make a statement and that there were possible consequences to providing false information and that his statement could be used in court if he was a witness and recanted it. In those circumstances, the Court of Appeal held that even in the absence of a standard caution, it was brought home to the accused that he did not have to give a statement and that there were possible adverse consequences in doing so. The trial judge’s decision to admit the statement was upheld.

125Similarly, when Mr. McGregor gave his statement to Constable Tweedie he was well aware of the nature of the investigation, his right not to speak to the police and the potential consequences of doing so. He raises no other concerns with the voluntariness of this statement and could not reasonably do so. Mr. McGregor was treated with respect by Constable Tweedie throughout the statement and was not subjected to any threats or inducements. The atmosphere was far from oppressive. At the end of the interview, Mr. McGregor asked how he could get in contact with Constable Tweedie if he had further information to provide. I have no doubt that this statement was voluntary and it is therefore admissible.

The July 5 Cell Statement

126While under arrest for the offence of obstruct police and waiting to speak to counsel, Mr. McGregor made a spontaneous utterance to Constable Bell when she brought him his dinner. He asked if Mr. Burgis had called yet and said that he needed to talk to his lawyer because he had “done something bad”.

127Mr. McGregor does not raise any Charter or voluntariness issues in relation to this statement. It was a spontaneous utterance that Constable Bell did nothing to elicit. Rather, the position of the defence is that the words spoken by Mr. McGregor are so vague that their probative value does not outweigh their prejudicial effect. Mr. McGregor may have been talking about having obstructed the police as opposed to having caused harm to Ms. MacKenzie. It is on this basis that he seeks to have this statement excluded.

128It is the Crown’s position that it should be left to the jury to determine what, if any inferences can be drawn from Mr. McGregor’s utterance. It is possible that he was referring to the obstruct charge but also reasonable to infer that he was referring to the fact that he had killed Ms. MacKenzie. The Crown submits that the fact that there may be competing inferences does not render the statement inadmissible.

129In R. v. Luciano 2011 ONCA 89, [2011] O.J. No. 399 (C.A.), Watt J.A. defines relevant evidence as that which renders the fact which it seeks to establish slightly more or less probable. The fact that there may be competing inferences to be drawn from the evidence does not render it irrelevant.³

130If the trier of fact concludes that Mr. McGregor was referring to the death of Ms. MacKenzie when he said that he had done something bad, that is clearly probative of his involvement in her homicide. It is evidence from which the jury may infer that he killed her. In contrast, I find there is virtually no prejudicial effect arising from the utterance. The jury will be properly instructed on the use that can be made of the statement. It is not the type of evidence that could cause a jury to engage in improper reasoning by concluding that Mr. McGregor is generally a bad person who is therefore more likely to be guilty of murder. As a result, I find that the probative value of Mr. McGregor’s spontaneous utterance to Constable Bell exceeds its possible prejudicial effect. It is admissible.

The July 5 Statement to Detective Sergeant Coburn

131The defence raises numerous voluntariness and Charter issues with respect to the lengthy videotaped interview between Detective Sergeant Coburn and Mr. McGregor that began at 11:16 p.m. on July 5. Mr. McGregor alleges that the Crown cannot prove that this statement was voluntary due to improper inducements, the fact that Mr. McGregor expressed that he was in pain and an overbearing of his will in violation of his right to remain silent. The defence further submits that there were violations of sections 7, 10(a) and 10(b) of the Charter.

132It is the Crown’s position that nothing that Detective Sergeant Coburn said or did had the effect of overcoming Mr. McGregor’s ability to make a meaningful choice about whether to speak or not. Further, the Crown submits that Mr. McGregor was not a suspect in relation to any offence in relation to Ms. MacKenzie other than obstruct police until he confessed to her murder the following day. As a result, Detective Sergeant Coburn was not required to advise Mr. McGregor of his right to counsel in relation to Ms. MacKenzie’s disappearance. The Crown’s secondary submission is that the officer complied with the informational requirements of section 10(a) of the Charter. In addition, Mr. McGregor waived his right to counsel or was not reasonably diligent in pursuing the opportunity to speak to a lawyer.

Section 10(a)

133In alleging that his section 10(a) rights were violated, Mr. McGregor argues that he was not properly advised of the full extent of his jeopardy prior to beginning his videotaped statement. Specifically, he asserts that his arrest for the charge of obstruct police was a ruse and that the real purpose of his detention was to investigate him in relation to what was obviously a homicide.

134It is the Crown’s position that the investigation into Ms. MacKenzie’s disappearance was ongoing and that there was no evidence that she was dead. She may have left the area voluntarily. If harm had come to her, it was possible that it was due to an undiscovered accident or suicide. Even if the police had reason to suspect that Mr. McGregor had harmed Ms. MacKenzie, the Crown submits that prior to interviewing him, Detective Sergeant Coburn fairly advised him about the nature of the investigation and the potential range of offences he could be charged with, including murder.

135There is no doubt that the police had reasonable and probable grounds to arrest Mr. McGregor for the offence of obstruct police. There was incontrovertible evidence that he had lied to officers when he said that he had not seen Ms. MacKenzie on the morning of July 2. His arrest on that charge was lawful. The question is whether, when he spoke to Detective Sergeant Coburn, Mr. McGregor was also facing jeopardy in relation to the disappearance of Ms. MacKenzie, and if so, whether this was made clear to him.

136Section 10(a) of the Charter requires that a person who is arrested or detained be informed promptly of the reasons therefor. If a person is being detained in relation to more than one investigation, they are entitled to know that. This does not mean that a person who has been arrested needs to be aware of all possible charges he may face with respect to one transaction. However, when the police are investigating someone for two different offences, that person must be made aware of their potential jeopardy in relation to both.

137This was made clear in R. v. Roberts 2018 ONCA 411, [2018] O.J. No. 2279 (C.A.) where the court held that when the police want to use a person who is detained in relation to one offence as a source of self-incriminating information about a different offence, they must tell the detainee that before proceeding. Further, if the police interest in the other offence arises after the person has exercised his right to counsel, the police must give him a further opportunity to exercise that right.⁴

138The first issue to be determined is the extent of the information the police had prior to commencing their videotaped interview of Mr. McGregor. Obviously, the police can only inform a detainee in accordance with their own knowledge. The reason for a person’s detention is based on the information available to the police at that point in time.

139At the time of Mr. McGregor’s arrest at 3:05 p.m. on July 5, 2011 the police had the following information:

(a) Ms. MacKenzie had been missing for approximately 78 hours. It was completely out of character for her to not be in touch with her family and friends. Her cellular phone was last used at approximately 9:00 a.m. on July 2 and was turned off;

(b) Ms. MacKenzie had not contacted any of her family members or friends since getting into Mr. McGregor’s truck. Many people were trying to get in touch with her without success;

(d) Ms. MacKenzie did not have a car or driver’s licence;

(e) The police had contacted local hotels and hospitals and had not found Ms. MacKenzie;

(f) The last person known to have seen Ms. MacKenzie was Mr. McGregor who had repeatedly denied having seen her or knowing anything about her whereabouts;

(g) There was incontrovertible evidence that Mr. McGregor had lied to the police about meeting up with Ms. MacKenzie on July 2;

(h) Mr. McGregor and Ms. MacKenzie were involved in an ongoing custody dispute over their daughter;

(i) Ms. MacKenzie’s mother told the police that her daughter’s relationship with Mr. McGregor was volatile and she was concerned for her safety;

(j) Ms. MacKenzie had told her brother and cousin that Mr. McGregor and his friends and family had been threatening her;

(k) On July 1, Mr. McGregor had asked someone to beat up Mr. Jessup and Ms. MacKenzie;

(l) According to his mother, Mr. McGregor was upset when he left the house to meet Ms. MacKenzie on the morning of July 2 and was sweaty and worked up when he returned. His clothes were ripped and he had a bloody nose;

(m) Mr. McGregor asked his fiancé to lie and say she went to Curve Lake with him to talk to Ms. MacKenzie’s drug dealer on July 2; and

(n) Mr. McGregor told Ms. MacKenzie’s brother and cousin that his daughter was with him in his truck when he went to meet with Ms. MacKenzie on the morning of July 2.

140Based on the cumulative effect of this information, the only reasonable inference that could be drawn is that Ms. MacKenzie was likely dead and that Mr. McGregor was responsible. At that point, there was no realistic possibility that she was going to be found alive. She had vanished without a trace 3 ½ days earlier and had not contacted anyone. That was totally out of character for her. There was a history of animus between her and Mr. McGregor arising out of the ongoing custody dispute over their daughter. The day prior to Ms. MacKenzie’s disappearance, Mr. McGregor had asked someone to beat her up. Most significantly, Ms. MacKenzie was last seen getting into Mr. McGregor’s truck which is a fact he lied repeatedly about. In my view, prior to 11:16 p.m. on July 5, objectively there were reasonable grounds to believe that Ms. MacKenzie was deceased and that Mr. McGregor was responsible for her death. As a result, Mr. McGregor was entitled to know that he was also being investigated in relation to an offence involving harm to Ms. MacKenzie, including murder.

141There are two fundamental components to the rights enshrined in section 10(a) of the Charter. First, no one is required to submit to an arrest without knowing the reasons for it. Secondly, a person can only exercise their section 10(b) right to counsel in a meaningful way if they understand the extent of their jeopardy.⁵ It is the second aspect of the section 10(a) rights that is in issue in this case.

142In R. v. Sawatsky, 1997 ON CA 511, [1997] O.J. No. 3561 (C.A.), the court stated that in situations where a person is being interviewed about something other than what they were detained on, the police must inform them of both the reason for the detention and the proposed subject matter of the interview. This is necessary so that the detainee can make an informed choice about whether to speak to counsel. A person must be aware of their risk of self-incrimination.

143In R. v. Smith, 1991 CanLII 91 (SCC), [1991] 1 S.C.R. 714, the court considered in detail the purpose of section 10(a). Applying a purposive approach, it held that an accused person must understand generally the jeopardy he or she is in, in order to appreciate the consequences of waiving the right to counsel. The detainee does not need to know the precise charge he faces or be aware of all of the factual details of the case. The emphasis should be on the reality of the situation as it impacts the understanding of the accused and not on the technical details of what he was told.⁶

144A contextual approach must be applied to the facts of each case to determine whether a detainee had a sufficient understanding of the extent of his jeopardy to make informed choices about whether to exercise his right to counsel and his right to remain silent. In Evans, supra, the court stated that it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used by the police. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to effectively exercise his right to counsel.⁷

145Mr. Evans, who had cognitive delays, was originally arrested for drug offences. During a police interview he was told that things had taken quite a change and that the police thought it was possible that he was involved in the murder. The court found that this information suggested that the requirements of section 10(a) had been satisfied.⁸

146The defence relies on the case of R. v. Carter, 2012 ONSC 94, as being factually similar. In Carter, the accused was being investigated in relation to two missing persons. Pomerance J. found that when the police conducted the interview in question, they knew or ought to have known that the victims were dead. As a result, they were required to inform the accused that he was a suspect in a homicide investigation, and not what she described as “an innocuous inquiry into missing persons”. Pomerance J. found that the police were not obligated to charge the accused with murder until the victims’ bodies were found, but did have to tell him what he was really being questioned about. In that case, the reference to a missing persons investigation was not sufficient and constituted a violation of section 10(a).

147Each case must be decided on its own facts. The question that must be answered is whether, based on the totality of the circumstances, Mr. McGregor understood that his jeopardy included murder. Anything less would not be sufficient to comply with section 10(a) of the Charter in the circumstances as they were known to the police prior to 3:05 p.m. on July 5.

148Detective Sergeant Coburn could have been more concise and clear when he was explaining the focus of the investigation to Mr. McGregor at the outset of the first videotaped interview. However, it is important to recall that this was not the first time Mr. McGregor was speaking to the police about Ms. MacKenzie’s disappearance. At the end of his conversation with Mr. McGregor on July 3, Sergeant Wilson told him that he was a person of interest in the missing person investigation. Constable Tweedie advised Mr. McGregor that he was conducting a missing person investigation into Ms. MacKenzie and that any statements Mr. McGregor made could be used against him if he was involved in her disappearance. Therefore, Detective Sergeant Coburn was not the first police officer to alert Mr. McGregor to the fact that the investigation was focused on Ms. MacKenzie’s disappearance and his possible role in it.

149Detective Sergeant Coburn told Mr. McGregor twice that if the police learned that he was involved in Ms. MacKenzie’s disappearance he could be charged with murder. Detective Sergeant Coburn also said that even though it was a missing person investigation, in his experience cases of that nature usually go down the road of homicide.

150Mr. McGregor knew, of course, that Ms. MacKenzie was not merely missing. He ultimately told Detective Sergeant Coburn that he had killed her and buried her body in a field. In Smith, supra, the court found that it was reasonable to infer from the evidence that the accused either knew or strongly suspected that he had killed his victim. The court relied on the facts of the shooting and Mr. Smith’s post offence conduct in coming to this conclusion. Taking into account all of the circumstances, the court was satisfied that Mr. Smith was aware that his situation was of the utmost seriousness when he waived his right to counsel, notwithstanding the fact that he had been told that he was being detained in relation to a shooting rather than a murder.⁹

151Relying on Mr. McGregor’s subjective knowledge is not reversing the burden of proof when it is based on the established evidence. Any conclusions drawn about what Mr. McGregor knew when he was speaking to the police do not come from an impermissible presumption of guilt, but rather are founded on the evidence. Mr. McGregor could not have been misled by any references Detective Sergeant Coburn made to the case as a missing person investigation because he knew that Ms. MacKenzie was dead. Further, the officer used the word “murder” twice and “homicide” four times.

152Applying a contextual approach, I am satisfied that Mr. McGregor knew that he was being detained not only in relation to the charge of obstruct police, but also with respect to a possible murder investigation. As in Smith, he fully understood the nature of the police investigation and the potential extent of his jeopardy. As a result, there was no violation of his section 10(a) Charter rights.

Section 10(b)

153Mr. McGregor alleges three violations of his rights under section 10(b):

i) By failing to read the formal rights to counsel Detective Sergeant Coburn did not comply with the informational requirement of section 10(b);

ii) Detective Sergeant Coburn failed to give Mr. McGregor a Prosper (see R. v. Prosper 1994 CanLII 65 (SCC), [1994] S.C.J. No. 72) warning when it was required. Mr. McGregor did not waive his right to counsel and was reasonably diligent in attempting to exercise it. As a result, the officer was required to hold off interviewing him until the following morning after he had consulted with his lawyer; and

iii) Detective Sergeant Coburn belittled the importance of the right to counsel by making demeaning comments during the interview.

154Section 10(b) contains both an informational and implementational component. With respect to the first aspect of the right, the police must inform a detainee of his right to retain and instruct counsel without delay and about the existence and availability of legal aid duty counsel.¹⁰

155Detective Sergeant Coburn did not read Mr. McGregor his right to counsel from the standard police card. Instead, he reviewed the substance of the right in his own words. He began by confirming that Mr. McGregor had been read his rights to counsel in relation to the charge of obstruct police. In relation to the possible homicide of Ms. MacKenzie, Detective Sergeant Coburn gave Mr. McGregor the following information:

i) People who are arrested or detained must be advised of “their rights to counsel or to a lawyer”;

ii) If he wanted to phone a lawyer or speak to a lawyer at anytime he should advise Detective Sergeant Coburn who would get him a phone “immediately”; and

iii) Legal Aid lawyers give people free legal advice. Duty counsel is available “24/7” and their phone number is 1-800-265-0451. That is a toll-free number and Mr. McGregor could speak to a lawyer in a private booth.

156It is the position of the defence that the disjointed and loose manner in which Detective Sergeant Coburn reviewed Mr. McGregor’s right to counsel did not satisfy the informational component of section 10(b).

157The Crown submits that Detective Sergeant Coburn gave Mr. McGregor all of the information required even though it was not provided at one time and in the standard wording. The Crown also relies on the fact that Mr. McGregor was read his formal right to counsel using the standard wording at the time of his arrest earlier that day and had those rights reviewed during the booking process. When he was paraded at 3:35 p.m. on the charge of obstruct police, he was asked whether he understood his “right to counsel”, his “right to call any lawyer you wish”, and “your right to receive free legal advice from a legal aid lawyer”. Mr. McGregor said that he understood those rights and did want to talk to counsel. He spoke with Mr. Burgis from 7:23 p.m. to 7:41 p.m.

158In Bartle, Lamer C.J.C. stated that if a person had previously been given the full rights to counsel, it may be reasonable to assume that he remembers the substance of the rights.¹¹

159It would have been far preferable for Detective Sergeant Coburn to read Mr. McGregor his right to counsel using the standard wording. The change in jeopardy in this case was as great as it possibly could be – from a fairly minor offence to murder. In those circumstances, the police must be diligent in ensuring that the detainee understands fully his rights in relation to the new jeopardy. I am concerned that Mr. McGregor may not have understood that his right was to contact counsel without delay, as opposed to just generally. This is something that I will consider in relation to whether a Prosper warning was necessary. I do note that Detective Sergeant Coburn told Mr. McGregor that if he wanted to talk to a lawyer, the officer would get him a phone “immediately”. I am therefore not satisfied that Mr. McGregor has met his onus of establishing that the informational component of his section 10(b) rights was violated.

160The implementational component of the section 10(b) right requires the police to provide a detainee who has indicated that he wishes to exercise his right to counsel with a reasonable opportunity to do so. Further, the police must refrain from eliciting evidence from the detainee until he has had this reasonable opportunity.¹²

161The right to counsel is not without its limits. Unless a detainee invokes the right and is reasonably diligent in exercising it, the corresponding duty on the police to refrain from eliciting evidence will be suspended.¹³

162If an accused person’s lawyer of choice is not immediately available, he has the right to wait for a reasonable amount of time and to refuse to contact different counsel in the interim. As long as the detainee is reasonably diligent in the exercise of his rights, the police must hold off questioning him until he has had the opportunity to speak to his lawyer of choice. What amounts to a reasonable period of time will depend on the circumstances of the case including the seriousness of the charge and the urgency of the investigation.¹⁴

163The issue in this case is whether Mr. McGregor waived his right to counsel or was not reasonably diligent in exercising it when he said that he would wait to speak to Mr. Burgis in the morning. The defence submits that because he had asserted his wish to speak to a lawyer, Detective Sergeant Coburn was obliged to give him a Prosper warning if he was going to continue the interview.

164In this case, Mr. McGregor clearly stated his desire to speak to a lawyer in relation to his increased jeopardy. When asked for the first time in relation to the homicide if he wanted to speak to a lawyer his response was “I would love to, but he said wait til tomorrow morning.” As set out earlier in these reasons, a discussion ensued between Mr. McGregor and Detective Sergeant Coburn that involved the officer offering Mr. McGregor duty counsel which he refused.

165Detective Sergeant Coburn also said “we can call Mr. Burgis and if he answers great”, to which Mr. McGregor replied “oh, I know he won’t”. At this point, it was 11:32 p.m. Mr. McGregor had already spoken to Mr. Burgis and made plans to speak to him in person at the courthouse the following morning. As the interview progressed it was apparent that Mr. McGregor expected to be taken to bail court in the morning.

166The exchange between Detective Sergeant Coburn and Mr. McGregor raises issues of waiver, due diligence and the appropriateness of a Prosper warning. In this case, I find that Mr. McGregor did assert his right to counsel when he said he wanted to speak to Mr. Burgis and intended to do so in the morning.

167With respect to due diligence, the Crown submits that in failing to take Detective Sergeant Coburn up on his offer to attempt a call to Mr. Burgis at 11:32 p.m., Mr. McGregor was not reasonably diligent in the exercise of his rights. The Crown relies on the urgency of the situation facing the police in their quest to find Ms. MacKenzie in support of its argument that it was not reasonable to wait until the morning.

168It would be impossible to overestimate the agony Ms. MacKenzie’s family must have been in from the morning of July 2 when she didn’t return home, onwards. Undoubtedly, they spent every waking moment worrying about where she was and imagining what had happened to her. Minutes must have seemed like hours, and hours like days. The wait for information would have been torturous. It is perfectly understandable that the police wanted to find Ms. MacKenzie in whatever condition she was in as quickly as possible.

169However, I cannot accept the Crown’s submission that this laudable goal translated into the type of urgency that justified restricting Mr. McGregor’s ability to consult with his lawyer of choice. Unfortunately, there was almost no hope of finding Ms. MacKenzie alive. By the time of Mr. McGregor’s interview with Detective Sergeant Coburn, she had been missing without a trace for approximately 86 hours. It was simply not reasonable to believe that Ms. MacKenzie was alive and in need of urgent medical assistance.

170Permitting Mr. McGregor to speak to Mr. Burgis in the morning would have resulted in a delay of about 8 or 9 hours. In Sinclair, supra, the court noted that allowing a detainee a reasonable opportunity to consult with counsel of choice may result in long delays in pursuing an interrogation. The court cautioned against permitting suspects, particularly sophisticated ones to delay “needlessly and with impunity an investigation”.¹⁵

171There is no basis upon which I can conclude that Mr. McGregor was using his right to counsel to delay or thwart the investigation. When he was paraded, he said that he wanted to speak to his lawyer. When given the opportunity to do so, he talked to Mr. Burgis on the phone for 18 minutes. On the morning of July 6 when Mr. Burgis attended at the police station, Mr. McGregor consulted with him for a further 26 minutes. Throughout his interview with Detective Sergeant Coburn, Mr. McGregor spoke highly of his lawyer and said that he trusted the advice he had been given by him in the past. I find that Mr. McGregor’s expressed wish to speak to Mr. Burgis was genuine and not something he said simply to avoid being questioned.

172As pointed out by Doherty J.A. in R. v. Rover 2018 ONCA 745, [2018] O.J. No. 4646 (C.A.), the right to counsel is a lifeline for an accused person providing not only legal advice but also psychological comfort which cannot be underestimated.¹⁶ Mr. McGregor was an unsophisticated, relatively young man who was facing the greatest possible jeopardy. His need to speak to a lawyer he knew and trusted in those circumstances is understandable.

173In R. v. Smith 1989 CanLII 27 (SCC), [1989] S.C.J. 89, the accused chose not to call his lawyer of choice because it was 9:00 p.m. and he only had the office number. The police suggested he try in case someone was at the office or there was an alternate number provided on the answering machine. Mr. Smith refused, saying he would wait until the morning. In those circumstances, the court found that the police were justified in continuing to question him.

174Mr. Smith was not reasonably diligent in the exercise of his rights. The court was not able to conclude that it would have been impossible for him to contact counsel when he was first arrested at 7:00 p.m. or two hours later at the police station. However, the court said that the situation would have been very different if the accused had made an attempt to reach his lawyer and failed. In that case, he would have been justified in asking for a delay until the morning when the lawyer’s office opened.

175In concurring reasons, Sopinka J. described Mr. Smith as being “most casual in asserting his rights” and having “frittered away about two hours at a time when counsel was more likely to be available”. He said that the case was close to the line.

176The behaviour of Mr. McGregor can be contrasted with that of Mr. Smith. Firstly, it was much later at night when Detective Sergeant Coburn suggested that they try calling Mr. Burgis at home. Secondly, based on his earlier conversation with Mr. Burgis, Mr. McGregor believed that he would not be available. He had made arrangements to meet with Mr. Burgis at the courthouse in the morning. Mr. Burgis had provided him with legal advice on the only charge Mr. McGregor knew he was facing when they spoke. There was no reason for Mr. Burgis to believe that Mr. McGregor would need an additional consultation late that night.

177In addition, when Mr. McGregor did ask to speak to counsel when he was paraded, it took Mr. Burgis about 3 ½ hours to call back. Mr. McGregor was aware of this delay because he asked Constable Bell whether his lawyer had called yet when she brought him dinner in the cells. In all of the circumstances, the failure of Mr. McGregor to take Detective Sergeant Coburn up on his offer to call Mr. Burgis again was not demonstrative of a lack of due diligence.

178With respect to waiver, the law is clear that to be valid, a waiver must be informed and unequivocal. Once an accused has asserted his right to counsel, the burden to establish an unequivocal waiver is on the Crown.¹⁷

179In Ross, Lamer J. said that once an accused asserts his right to counsel, absent a clear indication that he had changed his mind, it was unreasonable for the police to proceed as if he had waived his right.¹⁸

180In R. v. Manninen 1987 CanLII 67 (SCC), [1987] S.C.J. No. 41, the court noted that the accused clearly asserted his right to counsel at the beginning and end of the interview and could not be viewed as having waived that right by answering questions. Throughout his interview with Detective Sergeant Coburn, Mr. McGregor repeatedly expressed his desire to speak with his lawyer of choice. The Crown has not established that he ever gave an informed and unequivocal waiver of that right.

181Even if Mr. McGregor did waive his right to counsel, he takes the position that it was not a fully informed waiver because he ought to have been told that by failing to attempt to contact counsel immediately, he was giving up his corresponding right to have the police hold off on their investigation. This is commonly known as a Prosper warning. It ensures that a person who has indicated a desire to speak to counsel and subsequently changes his mind understands exactly what he is giving up.¹⁹

182In R. v. Fountain 2017 ONCA 596, [2017] O.J. No. 3664 (C.A.), the court considered the interplay between reasonable diligence and the entitlement to a Prosper warning. In that case, the trial judge found that the accused lost his entitlement to a Prosper warning because he had not been reasonably diligent in seeking legal advice. The court found this was an error. The trial judge also erred in holding that Prosper did not apply because the accused did not expressly state that he did not want to speak to a lawyer.

183When Mr. Fountain was arrested, he asked the police to have his girlfriend call his lawyer. The investigating officer spoke to counsel’s office and was told he was out of town. Four hours later the officer left a message at the office asking the lawyer to call the police station. The officer then spoke with Mr. Fountain’s girlfriend who told him that the lawyer’s office had said that a lawyer would “be there in the morning”. The officer relayed this information to Mr. Fountain and asked him if he wanted to call another lawyer. He told Mr. Fountain that legal aid was open 24 hours a day. Mr. Fountain declined the opportunity to call another lawyer and said he would talk to his lawyer the following day.

184In considering whether Mr. Fountain ought to have been given a Prosper warning, the court noted that it is not required in all cases. If a detainee has not been reasonably diligent in exercising the right to counsel, the right to a Prosper warning will be lost since he will have forfeited his right to consult counsel without delay.²⁰

185In finding that the trial judge erred in concluding that Mr. Fountain had not been reasonably diligent in exercising his right to counsel because he chose to wait until the following day to speak with him, Paciocco J.A. said that this conclusion failed to take into consideration the context. Specifically, Mr. Fountain was not being obstinate or trying to impede the investigation. He was taking what was presented to him by the officer as a benign choice between two available options: speaking to his own lawyer the next morning or calling another lawyer. In those circumstances, Mr. Fountain would not have suspected that he was forfeiting the “hold off” protection by choosing to wait to speak with his lawyer.²¹ Paciocco J.A. stated that the purpose of a Prosper warning is to ensure that detainees know what they are giving up if they abandon their efforts to speak to a lawyer without delay.²²

186Further, Prosper is not about the waiver of the right to counsel in its entirety but rather about the waiver of the immediate right to consult counsel without delay. Mr. Fountain did not have to expressly state that he had changed his mind about wanting to speak to a lawyer without delay in order to trigger the entitlement to a Prosper warning.²³ On the facts of that case, Paciocco J.A. found that in the absence of a Prosper warning, it was not possible for the Crown to meet its burden of showing that Mr. Fountain had knowingly and effectively waived his right to counsel.²⁴

187Similarly, in this case, there is no evidence that Mr. McGregor understood that he was giving up the right to have the police hold off interviewing him if he failed to exercise his right to consult counsel without delay. It is important to recall that when Detective Sergeant Coburn was reviewing Mr. McGregor’s right to counsel, he never advised him that he had the right to speak to a lawyer without delay. There is no way that Mr. McGregor would have known that the police had to hold off on their investigation of him until he had a reasonable opportunity to consult counsel without delay. In light of the language used by Detective Sergeant Coburn, it was reasonable for Mr. McGregor to believe that he had a right to speak to a lawyer whenever he chose to do so.

188The fact that Mr. McGregor opted not to attempt to call Mr. Burgis after making it clear that he wanted to speak to him in relation to the homicide investigation is further support for a finding that he did not know what he was giving up. Faced with a detainee who stated that he wanted to talk to his lawyer and had arranged to do so in the morning, Detective Sergeant Coburn was obligated to tell him that his right was to consult counsel without delay and that failing to do so meant that the obligation of the police to hold off interviewing him would be suspended. It was apparent that Mr. McGregor did not want to give a statement until he had spoken to his lawyer. It is inconceivable that had he been told that the interview would proceed unless he attempted to call Mr. Burgis at home at 11:32 p.m., Mr. McGregor would not have asked Detective Sergeant Coburn to make that call.

189The Crown attempts to distinguish the Fountain case on the basis that the officer made two calls to counsel’s office which were not responded to. In this case, because no call was attempted at 11:32 p.m., the Crown asserts that Mr. McGregor gave up any right he had to a Prosper warning. With respect, this argument in somewhat circular in these circumstances. Particularly because he had not been told by Detective Sergeant Coburn that his right was to consult counsel without delay, Mr. McGregor cannot be expected to have understood the legal significance of attempting a phone call to counsel regardless of the time of night.

190If he had been given the Prosper warning and still elected not to call Mr. Burgis, the Crown would be in a much stronger position to establish that there was a valid waiver. As it stood, Mr. McGregor did not know about the obligation of the police to hold off on their investigation or that this duty would be suspended if he did not take immediate steps to contact a lawyer.

191Applying a contextual approach to the circumstances of this case, I find that Mr. McGregor asserted his right to counsel at the outset of his interview with Detective Sergeant Coburn and repeatedly throughout it. He never provided a clear, informed and unequivocal waiver of this right. Given the arrangement he had made to meet with his lawyer at court in the morning, Mr. McGregor did not exhibit a lack of reasonable diligence in failing to take other steps to contact Mr. Burgis or another lawyer that night. As a result, I find that his rights as guaranteed by section 10(b) of the Charter were violated.

192Mr. McGregor also alleges that his section 10(b) rights were infringed because the effect of several comments made by Detective Sergeant Coburn was to belittle the importance of his right to counsel. In R. v. Burlingham 1995 CanLII 88 (SCC), [1995] S.C.J. No. 39, Iacobucci J. stated that section 10(b) specifically prohibits the police from belittling an accused’s lawyer with the express goal or effect of undermining the accused’s confidence in and relationship with the lawyer.²⁵

193The Crown acknowledges that some things said by Detective Sergeant Coburn were unfortunate. However, the Crown submits that there is no evidence that the comments were made with the intention of undermining the relationship between Mr. McGregor and Mr. Burgis or with that effect. Mr. McGregor did not testify on this application and Detective Sergeant Coburn denied that it was his intention to denigrate the solicitor-client relationship.

194It would be surprising for an officer to admit that he intentionally said things for the purpose of undermining a detainee’s relationship with his lawyer. Most often, it will fall to the court to determine what the effect of the impugned comments was based on the totality of the circumstances. In this case, Detective Sergeant Coburn waded into dangerous territory almost immediately when he acknowledged that Mr. Burgis had told Mr. McGregor about his right to remain silent but reminded him that he was a 25-year-old man capable of making his own choices. While that is factually correct, police officers should refrain from commenting on the advice provided to a detainee by his lawyer. Were that the only comment made by Detective Sergeant Coburn, I would not find that it infringed section 10(b).

195However, in my view the following comments, considered in context, were inappropriate and had the effect of belittling the legal advice sought by Mr. McGregor:

i) When Mr. McGregor said that he wanted to speak to his lawyer in the morning to get proper advice, Detective Sergeant Coburn told him “You don’t need advice on the truth Robert”;

ii) When pressing Mr. McGregor to tell the truth, Detective Sergeant Coburn stated “Robert, I’ll tell you right now, hiding behind people, hiding behind lawyers is not going to bring Joanne home”;

iii) When Mr. McGregor said that his lawyer told him not to say anything Detective Sergeant Coburn described that advice as “the foolish talk” and asked “If you knew she was alive and you could bring her home and let her daughter know that mommy’s alive and you refused to do it, what does that look like?”;

iv) Detective Sergeant Coburn also said “the issue is why would you need a lawyer present to tell the truth because if you had nothing to do with it, just tell the truth”. When Mr. McGregor attempted to answer the officer interrupted and continued “Robert, we both know the only reason why you would want a lawyer present because you know when you tell the truth it’s only going to tell you what you did to Joanne and we both know that right, cuz if you did nothing to Joanne you wouldn’t need a lawyer present but we both know that’s the reason why”; and

v) When Mr. McGregor explained that he wanted to speak to his lawyer in person about representing him, he said “it’s not that I wanna look guilty, like it’s not”. Detective Sergeant Coburn interjected “well, you do”. Mr. McGregor said “I know I do, it’s not that I want” and Detective Sergeant Coburn added “it’s, really guilty okay”.

196Mr. McGregor’s repeated requests to speak to counsel to get legal advice about what to tell the police and Detective Sergeant Coburn’s comments must be considered in the context of the interview and the circumstances surrounding it. Mr. McGregor clearly did not want to give a statement until he had spoken with his lawyer.

197The effect of Detective Sergeant Coburn’s comments, which were made to a person who wanted to speak to his lawyer as arranged the following morning was twofold. First, they called into question the validity of the legal advice obtained thus far by referring to it as “foolish talk”. Secondly, all of the impugned comments suggest that only guilty people need lawyers. Honest people with nothing to hide don’t need legal advice and don’t hide behind lawyers. Detective Sergeant Coburn turned Mr. McGregor’s desire to speak to a lawyer into evidence of his guilt.

198It is reasonable to conclude that these comments had the effect of causing Mr. McGregor to believe that exercising his right to consult counsel and his right to remain silent signalled to the police that he was guilty. In addition, when Detective Sergeant Coburn told him that the advice his lawyer had given him was making him look guilty, that must have had the effect of undermining Mr. McGregor’s confidence in his lawyer. As the court said in Burlingham, it makes no sense for section 10(b) of the Charter to provide for the right to retain and instruct counsel if law enforcement authorities are able to undermine either an accused’s confidence in his or her lawyer or the solicitor-client relationship.²⁶

199For the foregoing reasons, I find that Mr. McGregor’s rights as guaranteed by section 10(b) of the Charter were violated during the first videotaped statement taken by Detective Sergeant Coburn.

Voluntariness

200Mr. McGregor challenges the voluntariness of his statement for three reasons. First, he alleges that he was in pain due to a problem with his teeth. He complained about this at various points in the statement. Detective Sergeant Coburn provided him with Advil during the interview.

201When Mr. McGregor was paraded that afternoon, he was asked if he had any injuries. Mr. McGregor said that he had a sore leg and tailbone as a result of the attack in the Rehill parking lot, which actually didn’t occur. He did not mention any tooth pain at that time. He also declined medical attention. Mr. McGregor ate his dinner and had both a cold and hot drink during the interview. Therefore, while I cannot conclude that Mr. McGregor was not in some discomfort, in my view any pain he was experiencing was mild and did not detract from the voluntariness of his statement.

202Mr. McGregor also submits that the voluntariness of his statement was negatively impacted because Detective Sergeant Coburn offered him cigarettes as an inducement to speak. I do not accept that submission. Mr. McGregor asked repeatedly for a cigarette during the interview and Detective Sergeant Coburn acquiesced. Doing so was not significantly different than providing Mr. McGregor with food and beverages. Furthermore, allowing him to smoke cigarettes did not involve a quid pro quo or have the effect of overcoming his will.

203The final concern the defence raises with the voluntariness of Mr. McGregor’s statement relates to his repeated assertions of his right to remain silent and his desire to stop the interview. While Mr. McGregor only specifically asserted his right to remain silent on 10 occasions, he asked 31 times to speak to his lawyer. His requests to speak to counsel were tied to his desire to remain silent until he had the benefit of legal advice. Mr. McGregor wanted to speak to his lawyer before giving a statement to the police. Therefore, when he asked to contact his lawyer, he was also implicitly asserting his right to remain silent.

204In R. v. Oickle 2000 SCC 38, [2000] S.C.J. No. 38, the Court explained that the confessions rule extends to protect a broader concept of voluntariness than simply threats, inducements and oppression. It protects an accused’s rights and promotes fairness in the criminal process.²⁷

205The court in Singh, supra provided extensive guidance on the interplay between section 7 of the Charter and the voluntariness rule. The common law right to silence reflects the general principle that absent statutory or legal compulsion, no one is obligated to respond to questioning by the police.²⁸

206The court was careful to distinguish between the right to remain silent and a right not to be spoken to by the police. The importance of police interrogation of suspects was recognized.²⁹ The question is whether a person was deprived of his ability to make a meaningful choice about whether to speak to the police. The mere presence of a doubt as to the exercise of a detainee’s free will in making the statement will be sufficient to ground a remedy as the Crown will have failed to prove that the statement was voluntary.³⁰

207While the police are permitted to use legitimate persuasion to convince a detainee to talk, persistence in continuing an interview in the face of repeated assertions by the subject that he wishes to remain silent “may well raise a strong argument that any subsequently obtained statement was not the product of a free will to speak to the authorities”.³¹ The number of times a detainee asserts his right to remain silent is part of the assessment of the circumstances but is not determinative.³²

208When assessing the significance of Mr. McGregor’s assertion of his right to remain silent and how Detective Sergeant Coburn responded to him, the context of the interview and the investigation generally is important. Detective Sergeant Coburn was facing great pressure to obtain an inculpatory statement from Mr. McGregor that night. He had been brought in from the O.P.P. as a trained interrogator for that single purpose. Three other police officers had already interviewed Mr. McGregor and gotten no meaningful information about Ms. MacKenzie’s whereabouts. She had been missing for 3 ½ days and the police were no further ahead in their investigation than they were on July 2 in terms of locating her.

209The police knew that the only person who could lead them to Ms. MacKenzie was Mr. McGregor. The pressure on the police, and Detective Sergeant Coburn, must have been enormous. As he pointed out several times during the interview with Mr. McGregor, Ms. MacKenzie had a five-year-old daughter and a family who needed to know where she was and what condition she was in. The only way to obtain that crucial information was from Mr. McGregor.

210There was time pressure by virtue of the fact that the police were obligated to bring Mr. McGregor before the court on the charge of obstruct police without unreasonable delay. All of these circumstances combined to cause Detective Sergeant Coburn to put pressure on Mr. McGregor to tell the truth and bring Ms. MacKenzie home. He wanted the truth about her condition and her whereabouts as soon as possible. As he said during his testimony before Mullins J., Detective Sergeant Coburn felt that he could not stop the interview with Mr. McGregor because of the nature of the investigation. While this is understandable in light of the need to give Ms. MacKenzie’s family some answers, it resulted in Mr. McGregor’s constitutional rights being sacrificed.

211In Singh, the accused asserted his right to remain silent 18 times. Each time he did, the officer either affirmed that Mr. Singh did not have to say anything or explained that he had a duty or desire to place the evidence before him.³³ In contrast, Detective Sergeant Coburn often ignored Mr. McGregor’s assertions of his right to silence or his wish to speak to his lawyer or responded by telling him that they had to get to the truth.

212This is particularly troubling in the context of Detective Sergeant Coburn’s assurances at the beginning of the interview that he would stop the interview anytime Mr. McGregor wanted to and would get a telephone for him “immediately” if he wanted to call a lawyer. In Manninen, supra, the court recognized that when a detainee has positively asserted his right to counsel and the police have ignored his request and proceeded to question him, he is likely to feel that his right has no effect and that he must answer.³⁴

213Furthermore, Detective Sergeant Coburn went beyond ignoring Mr. McGregor’s assertions of his rights on several occasions when he said the following:

i) In response to Mr. McGregor clearly stating: “Now’s the time I would like to stop this”, Detective Sergeant Coburn said: “it can’t stop”;

ii) Detective Sergeant Coburn then repeated this sentiment saying: “Alright and this can’t stop because I’ve got a young twentyish young girl that hasn’t come home for almost four days now. I’ve got a five year old girl that doesn’t know where her mom is and this is not gonna stop. It can’t stop”;

iii) Mr. McGregor asked again to speak with his lawyer and was told: “the cog in the wheel is you right. Okay. It’s you alright and we need the truth”;

iv) When Mr. McGregor asked again to speak his lawyer, Detective Sergeant Coburn replied: “Robert, we’re past that, kay”;

v) Detective Sergeant Coburn told Mr. McGregor: “what’s gonna happen is it’s gonna get even worse unless we deal with these issues right now”; and

vi) When Mr. McGregor said that he wanted to “get this over with” Detective Sergeant Coburn replied: “Robert, the only way to get over with is to tell us where she is”.

214Throughout the course of the interview, Detective Sergeant Coburn went far beyond persistence in the face of assertions of constitutional rights. Through his conduct and his words, he delivered the message that Mr. McGregor had no power to stop the interview or refrain from answering questions. Further, he told Mr. McGregor that he did not believe the version of events he had proffered and that the only way to end the interview was to tell him the truth about where Ms. MacKenzie was.

215Detective Sergeant Coburn testified that he did not mean the interview couldn’t stop but rather that the investigation into Ms. MacKenzie’s disappearance had to continue. Even if that is what he meant, that is not what he said. Mr. McGregor never asked the officer to stop his investigation. He did ask repeatedly to stop the interview and it was in that context that Detective Sergeant Coburn made the impugned comments. The only conclusion Mr. McGregor could have drawn from what Detective Sergeant Coburn said was that ending the interview was not an option.

216In R. v. Othman 2018 ONCA 1073, the court held that comments by an officer that suggest negative legal consequences if the accused fails to speak and positive consequences if he speaks constitute improper threats and inducements. Detective Sergeant Coburn told Mr. McGregor that things would get worse if he didn’t speak and said he looked really guilty when he attempted to follow his lawyer’s advice to remain silent. In contrast, the officer advised Mr. McGregor that “you can’t go wrong, no matter what, with the truth”.

217In Othman, the court found that comments made by the officer amounted to improper threats and inducements notwithstanding the fact that the immediate trigger for his inculpatory statement may have been his desire to watch his girlfriend’s statement. In order to render a statement involuntary, the threats and inducements do not have to be the sole contributing factor to the accused providing a statement.³⁵

218The combined effect of Detective Sergeant Coburn ignoring Mr. McGregor’s repeated assertion of his rights and then telling him that the interview could not stop and would only be over with when Mr. McGregor told the police where Ms. MacKenzie was must have led Mr. McGregor to conclude that his rights were meaningless and that his ability to choose whether or not to provide a statement was merely illusory.

219Taking into account all of the circumstances surrounding the videotaped statement, I am not satisfied beyond a reasonable doubt that Mr. McGregor’s first videotaped statement with Detective Sergeant Coburn was voluntary. It is therefore not admissible.

Tainting

220In R. v. E.T. 1993 CanLII 51 (SCC), [1993] S.C.J. No. 132, the court laid out the approach to be followed in determining whether a subsequent statement is tainted by issues of voluntariness or infringements of the Charter. In E.T., the accused’s first statement was found to be involuntary and obtained in contravention of section 10(b) of the Charter. There is a different approach to be taken with respect to each problematic aspect of the first statement.

221In dealing with the voluntariness aspect of the inquiry, the admission of a subsequent statement depends on a factual determination based on factors pertaining to the degree of connection between the two statements. These factors include the time span between the statements, advertence to the previous statement during the subsequent interview, the discovery of additional incriminating evidence, the presence of the same police officers and any other similarities in circumstances.³⁶

222A subsequent statement will be involuntary if either the tainting factors which impacted the first statement continue to be present or if the fact that the first statement was made was a substantial factor contributing to the making of the second statement.³⁷

223In dealing with a statement subsequent to an earlier involuntary statement, the burden is on the Crown to establish that the effect of the circumstances that rendered that first statement involuntary did not continue to operate. It is a test of causation. The Crown must demonstrate that the impugned police conduct did not influence the accused into making subsequent statements.³⁸

224The fact that a caution is given at the outset of the subsequent statement or the fact that an accused spoke to counsel between the two statements are factors to be considered but are not determinative. These interventions may go a long way to dissipate elements of compulsion or inducement resulting from the earlier conduct of the police but may have little or no effect in circumstances where the second statement is induced by the fact of the first.³⁹

225The court acknowledged that an explanation of an accused’s rights by a police officer or lawyer may not avail in the face of a strong urge to explain away a prior statement. Further, the court noted that unless the lawyer had some way of knowing that the first statement would be inadmissible, the best advice may not be to remain silent.⁴⁰

226A previous statement may operate to compel a subsequent statement notwithstanding explanations and legal advice. If a subsequent statement is simply a continuation of the first or if the first statement is a substantial factor contributing to the making of the second statement it will also be inadmissible.⁴¹

227The facts of E.T. are illustrative. The accused provided a videotaped statement that was found at trial to be involuntary. After visiting the scene of the crime with the officer, he had a 30 minute in-person consultation with his lawyer. The following morning, the accused telephoned the officer and told him he had remembered some things that he wanted to add to his statement. Immediately prior to providing his second statement, the accused spoke to his lawyer again on the phone.

228At the outset of the second interview, the officer confirmed that the accused did not want to have anyone present during the interview. He also gave him a secondary caution. Notwithstanding these efforts and the two intervening consultations with counsel, on appeal the second statement was found to be tainted by the first. There was a close temporal relationship between the two statements and the second one was a continuation of the first. They were taken less than a day apart by the same officer. There was no evidence that the police had gathered further evidence in the intervening period to which he might be asked to respond. The officer also continually adverted to the first interview during the second one.⁴²

229Similarly, Mr. McGregor’s second statement was taken shortly after the first one by the same officer, in the same room. The police had not obtained any additional evidence that they wished to ask him about. There was minimal reference to the first statement by Detective Sergeant Coburn. However, he did use the same analogy when explaining Mr. McGregor’s rights to him and he played the same Tim Horton’s video again.

230More significantly, Mr. McGregor referred to his first statement while he was walking to the interview with Detective Sergeant Coburn. He said that he felt better after speaking to his lawyer and that he “was worried right cuz I did lie to yas and stuff like that right”. He went on to say that his lawyer advised him that as long as he told the truth, he should be fine to which Detective Sergeant Coburn responded: “The bottom line is, Robert, it is the truth. We talked about that last night”.

231I find that Mr. McGregor’s reference to having lied to the police previously indicates that his motivation for providing the subsequent statement was to try to counteract the effect of his previous dishonesty. This is not surprising in light of the fact that Detective Sergeant Coburn told him dozens of times the night before that he had to tell the truth about what happened to Ms. MacKenzie. The officer made it clear that he did not believe Mr. McGregor’s account of being beaten up in the Rehill parking lot and having made some kind of promise to Ms. MacKenzie about not disclosing her whereabouts. Further, Detective Sergeant Coburn’s response to Mr. McGregor wanting to “get it over with” was to tell him that would only happen when he told the police where Ms. MacKenzie was.

232In those circumstances, Mr. McGregor’s first involuntary statement was a substantial contributing factor to his statements to Detective Sergeant Coburn beginning at 9:51 a.m. on July 6 and continuing for close to eight hours. While his consultation with counsel and the secondary caution read to him by Detective Sergeant Coburn may have reduced the elements of compulsion resulting from the earlier conduct of the police, those measures did not change the fact that the second statement was induced by the fact of the first. Therefore, the Crown has failed to establish that Mr. McGregor’s second statement was not tainted by the first and it is inadmissible for that reason.

233Given my finding that the second videotaped interview with Detective Sergeant Coburn was tainted, it is unnecessary to assess its voluntariness standing alone or consider whether there were any additional violations of the Charter.

234Mr. McGregor made two more statements after speaking to Detective Sergeant Coburn: one to Constable Sejrup in the cell area on the evening of July 6, and one while en route to court the following morning. Looking at those statements in isolation, there are no concerns about their voluntariness. Mr. McGregor was the person who initiated both conservations and none of the officers offered him any inducements or made any threats. There was no atmosphere of oppression and Mr. McGregor’s will to decide whether or not to speak was not overcome.

235Further, I find that these statements were not induced by the making of the first videotaped statement to Detective Sergeant Coburn. The location of the statements was different as were the officers involved. In addition, there is no evidence that any of the later officers had any knowledge of the fact that Mr. McGregor had made earlier statements, let alone the content of them.

236That does not end the analysis into the admissibility of Mr. McGregor’s last two statements. Because his first statement was obtained in violation of the Charter, I must consider whether any or all of his subsequent statements were obtained in a manner that violated the Charter such as to engage section 24(2). In E.T., the court held that this route to inadmissibility does not depend on there being a causal relationship between the first and subsequent statements.⁴³

237In R. v. Wittwer 2008 SCC 33, [2008] S.C.J. No. 33, the court confirmed that it is not necessary to establish a strict causal relationship between the breach and the subsequent statement. A subsequent statement will be tainted if the breach or the impugned conduct can be said to be part of the same transaction or course of conduct. This connection may be temporal, contextual, causal or a combination of the three. However, a connection that is merely remote or tenuous will not suffice.⁴⁴

238The court in R. v. Plaha 2004 CanLII 21043 (ON CA), [2004] O. J. No. 3484 (C.A.) stated that the jurisprudence establishes a generous approach to this threshold issue. Further, a temporal connection between the Charter breach and the subsequent statement will usually suffice to engage section 24(2).[^^45] In that case, there was a 6 ½ hour gap between the two statements in issue. The court noted that time does not pass the same way for a person in custody as it normally does. Mr. Plaha was under the total control of the authorities and his contact with the rest of the world was through the police and subject to their control.⁴⁶ The court found that there was a sufficient temporal connection to engage section 24(2).

239More recently, in R. v. Pino 2016 ONCA 389, [2016] O.J. No. 2656 (C.A.), the court provided further clarification on the meaning of the phrase “obtained in a manner” and held that the approach to this threshold question should be generous. A court should consider the entire chain of events between the accused and the police. When the evidence and the Charter breach are part of the same transaction or course of conduct that may suffice. The connection between the breach and the evidence can be causal, temporal, contextual or a combination of these factors.⁴⁷

240The term “contextual” was defined by the court as “pertaining to the surroundings or situation in which something happens”.⁴⁸ In Pino, the “something that happened” was the arrest of the accused.

241In this case, the statements made by Mr. McGregor were part of an ongoing series of events that began with his arrest on July 5. While it is not necessary to find a causal connection, it is highly unlikely that Mr. McGregor would have made the statements he did to Constable Sejrup and the officers who transported him to court if he had not already confessed to Detective Sergeant Coburn.

242Once he admitted to killing Ms. MacKenzie and burying her body, he seemed to have an almost compulsive need to talk about it. He was extremely distraught emotionally to the point of being put on a suicide watch on the evening of July 6. Mr. McGregor did not want to be left alone and repeatedly talked about how scared he was. The police were his only contact with the outside world and he was desperate for some type of companionship.

243Applying the language used in Pino, the context in this case was the arrest of Mr. McGregor followed shortly by multiple violations of his constitutional rights which ultimately led to him providing a tainted confession. To separate his later statements from that series of events would be to ignore the context. Consequently, I find that Mr. McGregor’s statements to Constable Sejrup and the transporting officers were obtained in a manner that infringed the Charter.

Section 9

244Mr. McGregor submits that his right not to be arbitrarily detained or imprisoned under Section 9 of the Charter was violated by the failure of the police to bring him before a Justice of the Peace without unreasonable delay on the charge of obstruct police, as they are required to do by virtue of section 503 of the Criminal Code. He seeks the exclusion of all of his post-arrest statements on the basis that he should not have been held in custody for a show cause hearing. Mr. McGregor had no criminal record or outstanding charges. He was ordinarily resident in the area and had a means of support. It is his position that he ought to have been released shortly after his arrest on a Promise to Appear and Undertaking.

245 Section 498 of the Criminal Code governs the release from custody of a person under arrest by the officer in charge of the police station. Subsection (1.1)(a)(iii) states that the officer in charge shall not release a person if the officer believes, on reasonable grounds, that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this part, having regard to all of the circumstances including the need to prevent the continuation or repetition of the offence or the commission of another offence.

246Notwithstanding the fact that Mr. McGregor did not have a criminal record or outstanding charges, I do not find that the decision of the police to hold him for a show cause hearing was unreasonable. Although the charge of obstruct police is generally not viewed as a particularly serious offence, the circumstances surrounding it in this case were unusual and of utmost seriousness. Mr. McGregor had demonstrated a willingness to lie to the police repeatedly. He also encouraged his fiancé to do the same. There were reasonable grounds to believe that his detention was necessary to prevent the repetition or continuation of the offence. As a result, the decision not to release him from the police station was not unreasonable and did not offend section 498.

247The question that remains is at what point in time did Mr. McGregor’s detention violate section 503 and was that overhold arbitrary within the meaning of section 9 of the Charter. Section 503 states that a person who has been arrested shall be taken before a justice without unreasonable delay and in any event within twenty-fours hours.

248There is no dispute that Mr. McGregor was not brought before a Justice of the Peace on the obstruct charge within 24 hours. In fact, Mr. McGregor did not leave the police station to go to court until approximately 9:00 a.m. on the morning of July 7 which was 42 hours after his initial arrest. The Crown concedes that the police did not comply with section 503 but submits that Mr. McGregor’s detention was not arbitrary. It is the Crown’s position that in light of the extenuating circumstances and Mr. McGregor’s willingness to cooperate in taking the police to Ms. MacKenzie’s body, his continued detention was considered and for a valid investigative purpose.

249Three officers testified on this issue before Mullins J. Constable Tweedie testified that he was aware of the requirement to bring Mr. McGregor before a Justice of the Peace within 24 hours and knew that leaving the police station with him to locate Ms. MacKenzie’s body on the afternoon of July 6 meant that would not occur. In his mind, despite Mr. McGregor’s confession to murder, there was still a chance that Ms. MacKenzie was alive and in need of assistance, so the ongoing investigation had to take priority over bail court. According to Constable Tweedie, the decision not to take Mr. McGregor to court within the time period specified in section 503 was a deliberate one. He believed that Detective Inspector Dart was the person who made the final decision on this issue.

250In her evidence on the voir dire, Detective Inspector Dart was asked about whether, on July 6, she thought about whether she was going to bring Mr. McGregor to court that day. She testified that she called the acting Crown Attorney, Mr. Murray around 2:00 p.m. She advised Mr. Murray that Mr. McGregor had been arrested for murder that morning but knew that “we were approaching the 24 hour mark in relation to his first arrest”. She said that she was mindful and respectful of the fact that the clock was running in relation to the arrest for obstruct police. However, she too felt that there was a small possibility that Ms. MacKenzie was still alive and so the discussions with Mr. McGregor had to continue. Her priority was to collect evidence in relation to the murder investigation and to locate Ms. MacKenzie.

251Detective Sergeant Coburn testified that prior to his second interview with Mr. McGregor beginning at 9:51 a.m. on July 6, no one had any discussions with him about the duty of the police to bring Mr. McGregor before a justice in accordance with section 503. Further, he said that he did not turn his mind to that issue because his only role in the investigation was to conduct the interview. In his view, “that component would have nothing to do with me”.

252Shortly after 1:00 p.m., Mr. McGregor asked Detective Sergeant Coburn to take him “to arraignment” so that he could speak to a judge about the type of sentence he might receive if he continued to cooperate in the investigation. The officer was asked about this portion of his interview with Mr. McGregor when he testified on the voir dire. He acknowledged that Mr. McGregor had asked to be brought before a justice and said that, to his knowledge, nothing was done to facilitate that request. Detective Sergeant Coburn testified that his sole focus was on the interview with Mr. McGregor and that Detective Inspector Dart was responsible for dealing with getting him to bail court.

253Mr. Murray was the acting Crown Attorney for Peterborough in July of 2011. He had been apprised of the investigation into the disappearance of Ms. MacKenzie. He testified on the voir dire about a phone call he received from Detective Inspector Dart around 2:00 p.m. on July 6. It was clear to Mr. Murray that taking Mr. McGregor to locate Ms. MacKenzie’s body meant that he would not be brought before a justice within 24 hours of his arrest on the charge of obstruct police. There was a concern that if Mr. McGregor was brought to court and remanded, the police would not have access to him to continue their investigation. Mr. Murray testified that the larger concern was the ongoing murder investigation. Mr. Murray consulted with a senior colleague and ultimately advised Detective Inspector Dart that because Mr. McGregor had been arrested for murder only hours earlier, the police could continue their investigation.

254The Crown did not call the Peterborough officer who was in charge of the police station on July 6. While Constable Tweedie and Detective Sergeant Coburn were of the view that Detective Inspector Dart was responsible for ensuring compliance with section 503, I disagree. The O.P.P. were guests in the Peterborough police station. Detective Inspector Dart may have been the case manager on the missing person investigation, but she was not in charge of the Peterborough police station. Nor was she responsible for Mr. McGregor.

255Mr. McGregor was arrested by the Peterborough police and was being held in their custody. It is the highest-ranking Peterborough police officer on duty in the station who is responsible for ensuring the well-being of prisoners in that facility. Often, this is the Staff Sergeant who is in charge of parading new arrestees. It is important for there to be oversight by someone who is independent of any investigations. Investigators may have a vested interest in obtaining information from a suspect. Independent oversight is necessary to ensure that the rights of prisoners are respected.

256The Crown did not call evidence to establish such oversight in relation to Mr. McGregor. There is no evidence that the Staff Sergeant on duty on the morning of July 6 took any steps to inquire into Mr. McGregor’s status and whether consideration had been given to taking him to court that morning. There was no evidence called about any safeguards that the police employ to keep track of when prisoners are brought in and taken to court. In my view, the Staff Sergeant in charge of a police station has an overriding duty to make sure that the rights of all prisoners are respected. I am not satisfied that anyone fulfilled this duty with respect to Mr. McGregor on July 6.

257There is no evidence that anyone considered transporting Mr. McGregor to court at 9:00 a.m. At that point, he had been in police custody for 18 hours. The only evidence is that Detective Inspector Dart first took steps to get advice on this issue at 2:00 p.m. when Mr. McGregor had already been in custody for 23 hours.

258Several witnesses testified that this is the only case they are aware of involving an overhold in violation of section 503. This supports the Crown’s position that this is not a systemic issue in Peterborough. I am nevertheless troubled by the complete lack of evidence of independent oversight by the officer in charge of Mr. McGregor’s well-being at the Peterborough police station.

259Another concern that arises on the evidence is the fact that all of the witnesses who testified on this issue seem to believe that section 503 only requires that an accused person be brought before a justice within 24 hours. Section 503 actually obligates the police to bring an arrested party before a justice without unreasonable delay and sets 24 hours as the outer limit of the acceptable period of time in which to do so, provided a Justice of the Peace is available.

260This was made clear in R. v. Simpson, 1994 CanLII 4528 (NL CA), [1994] N.J. No. 69 (C.A.), in which the court stated that an unreasonable delay can occur in less than 24 hours. It should not be assumed that a violation of section 503 did not occur, simply because an accused was brought before a Justice of the Peace in less than 24 hours.⁴⁹ The court also described section 503 as one of the most important procedural provisions in the Criminal Code because the liberty of the subject is dominant.⁵⁰ The police have a duty to make sure that a prisoner is not detained any longer than is “absolutely necessary” (at paragraph 39). The court concluded that Ms. Simpson’s detention was arbitrary and in contravention of section 9, because it involved a major violation of a statutory provision that is designed to protect a fundamental right.⁵¹

261This has been the law in Ontario for almost 50 years. In R. v. Koszulap 1974 CanLII 1461 (ON CA), [1974] O.J. No. 726 (C.A.), the court held that the police do not have “an unqualified right to keep such person in custody for the purposes of investigation for a period of 24 hours before taking such person before a justice”.⁵² Twenty-four hours is the outside limit of what a reasonable period of time is.

262In R. v. E.W., 2002 NFCA 49, [2002] N.J. No. 226 (C.A.), the accused was held in custody for almost 24 hours before being brought before a Justice of the Peace. The police did not begin taking his statement until he had been in custody for more than 21 hours. The court accepted that a continuing police investigation can provide justification for a delay in taking an accused before a Justice of the Peace. However, the investigation must in fact be ongoing.⁵³

263The Crown submits that because the police were actively investigating the disappearance of Ms. MacKenzie on the morning of July 6, it was reasonable to keep Mr. McGregor at the police station, particularly since he had met with Mr. Burgis who advised the police that he wanted to provide another statement. It is the Crown’s position that the obstruct police charge was inextricably connected to the missing person investigation and cannot be viewed separately. While this submission is initially attractive, it is important to recall what Mr. McGregor had actually been arrested for.

264The wording of the charge itself is informative. Mr. McGregor was charged with obstructing Constable Tweedie on July 4 by lying to him in the course of a missing person investigation. The lie Mr. McGregor told was that he did not see Ms. MacKenzie on the morning of July 2. Once the police had the surveillance video from Tim Horton’s, they had reasonable grounds to arrest Mr. McGregor for the offence of obstruct police and acted quickly to do so. That investigation was connected to the missing person investigation. However, the police were not detaining Mr. McGregor to gather further evidence in relation to the offence of obstruct police.

265Constable Tweedie acknowledged this in his testimony before Mullins J. when he was asked:

Q: Ultimately the next day, you do get the video, and you’ve convinced yourself that he’s obstructed the investigation, right?

A: Yes.

Q: Okay. And I mean that’s plain on its face on the video, right? Once you compare the two videos, of the video from Tim Horton’s, and the video statement that he gave to you, under caution, that he’s lied to you.

A: Yes.

Q: It’s not as though you really need to interview him about that to gather any other further evidence. It’s plain as day on a comparison of the two videos, you agree with that?

A: I’d agree with that.

266Constable Tweedie was asked about his understanding of Detective Sergeant Coburn’s attendance at the Peterborough police station on July 5. In response to the question: “And this interview was not about, specifically the obstruct charge, correct”, Constable Tweedie replied: “No, not specifically”.

267Detective Sergeant Coburn made it clear throughout his testimony on the voir dire that his focus was on the missing person investigation. For example, when asked what his goal or purpose was in conducting a further interview with Mr. McGregor on July 5 he responded: “There was, obviously, it’s a missing person investigation. We’re trying to find, if we can, Ms. MacKenzie. There’s some inconsistencies in Mr. McGregor’s statement so it was to find out why there are those inconsistencies”.

268In cross-examination the following exchange occurred:

Q: You understood that that reason why you were called into this case, though, was to interrogate Mr. McGregor about the whereabouts of Joanne MacKenzie, correct?

A: That’s correct. We wanted to find out where Ms. MacKenzie was.

269When explaining why he commenced the interview with Mr. McGregor so late in the evening, Detective Sergeant Coburn said “In relation to this investigation, time is of the essence. Under many different circumstances I wouldn’t conduct an interview at 11:16 p.m. but for this investigation I had to commence it then to help develop this investigation and hopefully try and locate Ms. MacKenzie”.

270In relation to his second interview with Mr. McGregor on the morning of July 6, Detective Sergeant Coburn testified “Again, this is a missing person investigation. We need to find Joanne. I know that he had spoken with Mr. Burgis, which is what he had requested during the first interview and that would have been facilitated and so I wanted again to speak to Mr. McGregor, again, with the objective of trying to find Ms. MacKenzie.”

271For all intents and purposes, the investigation into the charge of obstruct police was at an end when Mr. McGregor was arrested. The failure to bring Mr. McGregor to bail court on the morning of July 6 was the due to the ongoing homicide investigation. Mr. McGregor was kept at the police station as an investigative measure so that the police could interview him again in relation to the disappearance of Ms. MacKenzie and their belief that he had killed her.

272The officers used Mr. McGregor’s detention on the charge of obstruct police to keep him at the police station. The Crown’s position on this application seeks to capitalize on the advantage that was gained by the police relying on the detention on the obstruct police charge. This approach would permit the police to arrest someone on a relatively minor charge and keep him in custody to facilitate an investigation into a more serious allegation without engaging section 503 in relation to that other offence.

273Furthermore, the ability of the police to hold someone in custody for investigative purposes is not without its limits. In R. v. Holmes, 2002 CanLII 45114 (ON CA), [2002] O.J. No. 4178 (C.A.), Rosenberg J.A. characterized the failure of the police to bring the accused before a Justice of the Peace in accordance with section 503 as being disturbing. He further stated that the police are obliged to do so without reasonable delay, and do not have the power to detain a person for 24 hours for investigative purposes.⁵⁴

274The case of R. v. C.K., 2005 ONCJ 462, [2005] O.J. No. 4853 (C.J.) involved statements that were completed approximately 11 hours after the arrest of the accused. However, by that time, bail court had ended and the accused were not brought to court until the following morning. Duncan J. recognized that an attempt by the police to elicit a statement from a suspect is a valid investigative measure. That goal cannot override the requirements of section 503. A delay cannot be reasonable if its consequence is breaking the law. Knowing that a Justice of the Peace would be unavailable after a certain time, the police were not entitled to delay transporting the accused to court while they continued making efforts to obtain statements.⁵⁵

275In C.K., Duncan J. stated that the court must assess the reasonableness of the investigative technique that delays an accused’s appearance in court. Once the right to silence is asserted, the police should be given a reasonable opportunity to persist and persuade the suspect to change his or her mind about cooperating. A delay beyond that point for further interrogation is unreasonable.⁵⁶

276Given the high societal interest in confirming Ms. MacKenzie’s condition and location as soon as possible, it was reasonable for the police to attempt a focused interview with Mr. McGregor after his arrest for obstruct police. Detective Sergeant Coburn, who was a trained interrogator, did that for over 3 hours beginning at 11:16 p.m. on July 5. He made his best efforts to convince Mr. McGregor to tell him what had happened to Ms. MacKenzie and where she was.

277Detective Sergeant Coburn had a reasonable opportunity on the evening of July 5 to persuade Mr. McGregor to cooperate with the investigation. He was unsuccessful in doing so, despite his years of experience and specialized training in interviewing subjects. Detective Sergeant Coburn talked about Ms. MacKenzie’s family and particularly her daughter and implored him to do the right thing so that MacKenzie would know where her mother was. Detective Sergeant Coburn said he had no doubt in his mind that Mr. McGregor had done something to Ms. MacKenzie.

278Detective Sergeant Coburn made such a concerted effort to obtain a statement from Mr. McGregor that he violated Mr. McGregor’s constitutional rights in the process. He did everything he could in that interview to extract the desired information from Mr. McGregor, with no success.

279It must also be remembered that not only was he interviewed at great length by Detective Sergeant Coburn, but Mr. McGregor had also given statements to Constable Self, Sergeant Wilson and Constable Tweedie. The police had a reasonable opportunity to persist and attempt to persuade Mr. McGregor to provide a truthful statement prior to the morning of July 6.

280The Crown cannot rely on the fact that Mr. McGregor agreed to provide a further statement to Detective Sergeant Coburn after meeting with Mr. Burgis on the morning of July 6. He had made it clear in his first interview with the officer that he expected to be brought to court in the morning.

281The fact that Constable Tweedie asked Mr. Burgis to come to the police station on the morning of July 6 when Mr. McGregor had made arrangements to speak to him at the courthouse is evidence that that police did not intend to take him to court that morning. Detective Sergeant Coburn’s return to the police station at 7:00 a.m. also supports this conclusion.

282In E.W., supra, the accused did not complain about being held in custody. The court described that fact as “irrelevant” because the right to be brought before a justice pursuant to section 503 is not dependent on an accused person complaining about his situation.⁵⁷

283The impact of section 503 may be distasteful in some cases. If the police had taken Mr. McGregor to court on the morning of July 6, he likely would never have confessed to killing Ms. MacKenzie. It would be speculative to consider whether or when Ms. MacKenzie’s body would have been found. Understandably, this outcome would have been devastating for her family.

284However, the provisions of section 503 apply to all accused regardless of the offence they are charged with. Nordheimer J. (as he then was) made this point in R. v. Brown [2007] O.J. No. 2830 (S.C.J.) when he said “Regardless of the nature of the charges and the circumstances surrounding them, each of these applicants was entitled to have their rights respected and be accorded the safeguards provided by our law. Among other things, this means that each of these accused have the right to have the appropriateness of their detention determined at the earliest possible moment”.⁵⁸

285Iacobucci J. expressed a similar sentiment in Burlingham, supra when he said “I underscore that we should never lose sight of the fact that even a person accused of the most heinous crimes, and no matter what the likelihood that he or she actually committed those crimes, is entitled to the full protection of the Charter. Short-cutting or short-circuiting those rights affects not only the accused, but also the entire reputation of the criminal justice system”.⁵⁹

286In my view, the police were obligated to bring Mr. McGregor to bail court first thing on the morning of July 6. At that point, he had already been in custody for 18 hours on a relatively minor charge. The officers testified that they did not have reasonable and probable grounds to charge him with any other offence. Mr. McGregor had already been interviewed on four occasions by four different police officers. The police already had the opportunity to exercise reasonable persistence to persuade him to provide a truthful statement. Their lack of success was no doubt disappointing and frustrating. However, it is simply not permissible to hold a person in custody until such time as they provide the information the police want. The decision to keep Mr. McGregor at the police station on the morning of July 6 for additional questioning resulted in a violation of section 503 because the delay at that point was not reasonable. His detention from approximately 9:00 a.m. on July 6 onwards was consequently unlawful.

287The importance of section 503 was discussed in R. v. Poirier 2016 ONCA 582, [2016] O.J. No. 3873 (C.A.) where the court described it as reflecting a fundamental right, the liberty of the subject, which is not to be taken away except in accordance with the law.⁶⁰ Further, compliance with section 503 is not simply a matter of form. Nor does it matter if the accused was likely to have been released from custody.⁶¹

288The court cited with approval the following passage from the judgment in R. v. Truchanek (1984) 1984 CanLII 5683 (BC SC), 39 C.R. (3d) 137 (B.C. Co. Ct.) which is applicable to Mr. McGregor’s situation:

Even if the detention was but for hours, even if the detention was to obtain evidence of the commission of a serious crime, the deliberate illegal refusal to present the accused according to the law was in my view a matter of vital importance for the people of this community, as it opens up to the police the idea that any one of us who has the misfortune to be arrested could be held for any length of time in order to extract a confession, to locate evidence and, for that matter, for any other purpose at their whim.

289Having found that the detention of Mr. McGregor was unlawful from 9:00 a.m. onwards on July 6 when he should have been brought to bail court, I must determine if that also rendered it arbitrary within the meaning of section 9 of the Charter. In R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, the court stated that a detention that is unlawful is necessarily arbitrary within the meaning of section 9 of the Charter.⁶² In the context of a breach of section 503, the courts in R. v. MacPhail [2011] O.J. No. 1716 (C.J.) and R. v. Gander [2011] O.J. No. 2725 (S.C.J.) held that following Grant, an unlawful detention is an arbitrary one within the meaning of section 9 of the Charter. I came to the same conclusion in R. v. Rodgerson 2016 ONSC 6094, [2016] O.J. No. 5886 (S.C.J.).

290In the circumstances of this case, I have no difficulty in concluding that Mr. McGregor’s right not to be arbitrarily detained as protected by section 9 of the Charter was violated by the deliberate decision of the police not to bring him to court until he had been in custody for 42 hours on the charge of obstruct police.

Section 24(2)

291Having found violations of sections 9 and 10(b), I must consider whether Mr. McGregor has demonstrated that the admission of the evidence would bring the administration of justice into disrepute. Although Mr. McGregor’s first statement to Detective Sergeant Coburn was found to be involuntary, it also involved violations of section 10(b) and section 7 of the Charter. It is not necessary to resort to section 24(2) for either of the statements to Detective Sergeant Coburn because they are otherwise inadmissible. However, I will consider these statements in the context of section 24(2) as they are part of the course of conduct related to Mr. McGregor.

292The court in R. v. Grant, supra, set out the three factors that must be assessed in making this determination. The first is the seriousness of the Charter-infringing state conduct. Several cases stand for the proposition that a deliberate decision by the police to investigate an accused person, knowing that will result in non-compliance with section 503, is a very serious breach of section 9. In R. v. Mangat, 2006 CanLII 20227 (ON CA), [2006] O.J. No. 2418 (C.A.), the police detained the accused in contravention of section 503 for the purpose of obtaining a statement from him. While the court found that this conduct did not justify a stay of proceedings, it did state that the exclusion of the statement under section 24(2) was an appropriate remedy.

293In R. v. Mendez, 2014 ONSC 498, [2014] O.J. No. 317 (S.C.J.), Forestell J. characterized the failure to take the accused to court in accordance with section 503 as being an extremely serious breach of section 9. The police chose to continue their investigation at the expense of the accused’s statutory right.⁶³

294Likewise, in R. v. Gander, supra, the accused’s statement was excluded pursuant to section 24(2), as a result of a finding that the Charter infringing conduct was serious in that it arose from a calculated investigatory decision. It was not a technical breach.⁶⁴ The accused’s statement was also excluded in C.K. because Duncan J. found that the unreasonable delay created the opportunity for the police to gather evidence they otherwise would not have had.⁶⁵

295In this case, I find that the police deliberately disregarded Mr. McGregor’s statutory right to be brought before a Justice of the Peace without unreasonable delay and, in any event, within 24 hours. They did so in order to further their investigation of the homicide. There are two additional troublesome aspects of the section 9 violation in this case. First, all of the police witnesses who testified seem to believe, incorrectly, that they had the authority to hold Mr. McGregor for 24 hours. None of them testified that any consideration was given to what a reasonable delay was in the circumstances and whether Mr. McGregor ought to have been taken to court on the morning of July 6.

296Second, there is no evidence that the officer in charge of the Peterborough police station had any involvement in the decision about when to take Mr. McGregor to court. There is no evidence of any independent oversight by the person responsible for Mr. McGregor’s well-being during the time he was in the custody of the Peterborough police. While the police did obtain legal advice from Mr. Murray, this was after they had decided not to take Mr. McGregor to court on the morning of July 6 and only as the outside limit of 24 hours was approaching. The breach of Mr. McGregor’s section 9 right was a serious one.

297With respect to the breaches of sections 7 and 10(b), the conduct of Detective Sergeant Coburn is troubling for several reasons. He was a specially trained interviewer and testified that part of his job was to teach other officers about how to take statements. He ought to have known the limits imposed by the Charter. As the court said in R. v. Le 2019 SCC 34, [2019] S.C.J. No. 34, the police are rightly expected to know what the law is.⁶⁶

298In my view, he disregarded Mr. McGregor’s rights because he was determined, at all costs, to find out where Ms. MacKenzie’s body was. He believed that Mr. McGregor had killed her and knew that he was the only source of information about her location. Detective Sergeant Coburn was willing to do whatever was necessary to obtain a statement from Mr. McGregor and his zest to do so caused him to disregard his rights. There is no doubt that the police had a legitimate interest in speaking to Mr. McGregor. However, they also had a duty to ensure that they respected Mr. McGregor’s Charter interests in the process. They failed to do so.

299Furthermore, the breaches which occurred during Mr. McGregor’s first statement to Detective Sergeant Coburn were repetitive and occurred throughout the course of a long interview, conducted late at night. They were not transient or technical violations. In R. v. Adler 2020 ONCA 246, the court considered the fact that there were multiple Charter breaches which were all part of a continuum of conduct by the police.⁶⁷ Taking into account the totality of the Charter infringing conduct by the police in this case, I find the first factor weighs heavily in favour of excluding the evidence.

300The second factor to be considered is the impact of the breach on the Charter-protected interests of the accused. With respect to section 9, the Crown relies on the fact that Mr. McGregor was given an in-person consultation with Mr. Burgis on the morning of July 6. The Crown submits that, at all times, Mr. Burgis knew where his client was and what was happening. Mr. McGregor was not cast adrift.

301The decision to allow Mr. McGregor to speak with Mr. Burgis was not a generous charitable gift the police bestowed upon him. Mr. McGregor was entitled to speak to a lawyer and had planned to do so in person at the courthouse that morning. Mr. Burgis’ attendance at the police station was necessary because the police did not intend to take Mr. McGregor to court. Whether Mr. Burgis could have or should have done more to protect his client’s rights by insisting that he be transported to court is not the issue. The police were required to comply with section 503.

302The Crown also seeks to rely upon the fact that, once he was arrested for murder, Mr. McGregor could not have been released by a Justice of the Peace. This ignores that fact that Mr. McGregor was entitled to appear in bail court without unreasonable delay on the charge of obstruct police. Further, in C.K., Duncan J. noted that the opportunity to secure release is not the only purpose of section 503. It is also meant to swiftly bring an accused person under the protective umbrella of the court to be dealt with in accordance with the law.⁶⁸

303Mr. McGregor did not appear in bail court until he had been in custody for approximately 42 hours. That is an extremely lengthy period of time to be held in custody at the sole discretion of the police. The impact of the section 9 breach on Mr. McGregor’s Charter-protected interest was significant.

304Similarly, the effect of the section 7 and 10(b) breaches on Mr. McGregor were serious. In Rover, supra, there was a delay of almost six hours in allowing the accused to speak with his lawyer. The court found that his right to security of the person was clearly compromised and that there was significant psychological pressure brought to bear on him. Even in the absence of a causal connection between the Charter breach and the obtaining of the evidence, the violation was found to have had a significant negative impact on the accused’s Charter protected interests.

305In this case, Detective Sergeant Coburn promised Mr. McGregor at the outset of the interview that he would stop at any time Mr. McGregor wanted to. He also said that if Mr. McGregor wanted to speak with a lawyer he would immediately bring him a phone. Instead, when Mr. McGregor asserted his right to silence or said he wanted to talk to his lawyer, Detective Sergeant Coburn often ignored his requests. Mr. McGregor apologized several times during the interview for wanting to exercise his constitutional rights and said he was not trying to be disrespectful. He was told by the officer that remaining silent was making him look really guilty. This took place in the context of an interview in which significant psychological pressure was brought to bear on Mr. McGregor to tell the truth about what he had done to Ms. MacKenzie. The impact of the Charter violations on Mr. McGregor was substantial and weighs heavily in favour of excluding the evidence.

306There is no question that there is an extremely high societal interest in having a charge of this nature determined on its merits. The Crown’s case does not depend on the admission of the impugned statements. The Crown still has a powerful circumstantial case against Mr. McGregor which includes the history of animus with the deceased and her family, the ongoing custody dispute in relation to MacKenzie, the fact that Ms. MacKenzie was last seen getting into Mr. McGregor’s truck on the morning of July 2 and the discovery of her body. Mr. McGregor is not seeking to have Ms. MacKenzie’s body or the results of the post-mortem examination excluded. He may wish to make further submissions about how this evidence ought to be presented to the jury in the absence of Mr. McGregor’s statements. However, the jury will still have critical evidence about the number and nature of the injuries to Ms. MacKenzie which will be important in assessing self-defence and the intent of Mr. McGregor.

307In addition, I have found his statements to Constable Self, Sergeant Wilson, Constable Tweedie and Constable Bell to be admissible. However, the exclusion of Mr. McGregor’s final four statements will remove an important piece of the puzzle. As a result, this factor militates against excluding the evidence.

308Excluding a confession in a first degree murder case has to give rise to anxious consideration. However, as noted in Le, people who feel that this is an unpalatable result should understand that it is the direct product of the manner in which the police chose to conduct themselves and not reflective of an indifference by the court towards violence.⁶⁹

309Balancing the three Grant factors, I conclude that admitting any statements or utterances made by Mr. McGregor after 11:16 p.m. on July 5 would bring the administration of justice into disrepute. Consequently, anything said by him to the police after that time, including his statements to Detective Sergeant Coburn, Constable Sejrup and while en route to court on July 7, is excluded from evidence pursuant to section 24(2) of the Charter.

Conclusion

310For the foregoing reasons, Mr. McGregor’s statements to Constable Self, Sergeant Wilson, Constable Tweedie and Constable Bell are found to be voluntary. Those statements were not obtained in a manner that infringed the Charter so they are admissible. Any statements or utterances made by Mr. McGregor from 11:16 p.m. on July 5, 2011 onwards are not admissible, either because the Crown has not proven them to be voluntary or because they were obtained in contravention of the Charter and are excluded from evidence, pursuant to section 24(2) of the Charter.

The Honourable Justice L. Bird

Released: August 13, 2020

Footnotes

Para. 32.
Para. 50.
Paras. 204 and 205.
Para. 76.
R. v. Evans, 1991 CanLII 98 (SCC), [1991] S.C.J. No. 31 at paragraph 31.
Para. 28.
Para. 30.
Para. 31.
Para. 30.
R. v. Bartle 1994 CanLII 64 (SCC), [1994] S.C.J. No. 74 at paragraph 18.
Para. 41.
Bartle at paragraph 18.
Bartle at paragraph 19.
R. v. McCrimmon 2010 SCC 36, [2010] S.C.J. No. 36 at paragraphs 17 and 18.
Para. 58.
Para. 45.
R. v. Ross 1989 CanLII 134 (SCC), [1989] S.C.J. No. 2 at paragraph 14.
Para. 14.
Prosper at paragraph 44.
Para. 30.
Paras. 33-36.
Para. 37.
Para. 44.
Para. 50.
Para. 14.
Para. 14.
Para. 69.
Para. 27.
Paras. 28 and 45.
Para. 38.
Para. 47.
Para. 53.
Para. 13.
Para. 25.
Para. 24.
E.T. at paragraph 29.
E.T. at paragraph 30.
R. v. E.C. 1997 CanLII 1636 (ON CA), [1997] O.J. No. 857 (C.A.) at paragraph 37.
E.T. at paragraph 31.
E.T. at paragraph 32.
E.T. at paragraph 35.
E.T. at paragraph 39.
Para. 36.
Para. 21.
Para. 49.
Para. 72.
Para. 74.
Para. 34.
Para. 36.
Para. 47.
Para. 28.
Para. 16.
Para. 22.
Para. 44.
Para. 43.
Para. 30.
Para. 12.
Para. 50.
Para. 57.
Para. 58.
Para. 55.
Paras. 116 and 117.
Para. 62.
Para. 48.
Para. 149.
Para. 50.
Para. 48.
Para. 164.
Paras. 45 and 48.

Her Majesty the Queen v. Robert McGregor, 2020 ONSC 4802

Case Summary

Introduction

Factual Background of the Statements

Issues

The July 3 Statement

The July 4 Statement

The July 5 Cell Statement

The July 5 Statement to Detective Sergeant Coburn

Section 10(a)

Section 10(b)

Voluntariness

Tainting

Section 9

Section 24(2)

Conclusion

Footnotes

Her Majesty the Queen v. Robert McGregor, 2020 ONSC 4802

Case Summary

Introduction

Factual Background of the Statements

Issues

The July 3 Statement

The July 4 Statement

The July 5 Cell Statement

The July 5 Statement to Detective Sergeant Coburn

Section 10(a)

Section 10(b)

Voluntariness

Tainting

Section 9

Section 24(2)

Conclusion

Footnotes

Cited By (2 cases)

R. v. Jahfari, 2023 ONCJ 269

R. v. Wight, 2022 ONSC 1432

Cited By (2 cases)

R. v. Jahfari, 2023 ONCJ 269

R. v. Wight, 2022 ONSC 1432