COURT FILE NO.: CR-19-400000688-0000

DATE: 20201217

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Imran Shaikh, for the Crown

Applicant

• and -

RYAN SIMPSON

Barry Fox, for the Defendant

Defendant/Respondent

HEARD: By Zoom trial conducted on November 16-19, 2020, at Toronto, Ontario

Michael G. Quigley J.

Reasons for Judgment

Table of Contents

Introduction................................................................................................................................. 2

Overview....................................................................................................................................... 3

Issues............................................................................................................................................. 7

Some relevant legal principles................................................................................................. 8

Analysis...................................................................................................................................... 10

(i) Was the Defendant detained?........................................................................................ 10

(ii) Were the first utterances voluntary and admissible?................................................. 14

(iii) Charter s. 10(b) Analysis.............................................................................................. 17

(iv) Charter s. 24(2) analysis.............................................................................................. 23

(iv) Voluntariness of the Video Statement.......................................................................... 28

(v) Has the Crown proven the charges beyond a reasonable doubt?............................... 38

Final disposition....................................................................................................................... 48

Introduction

[1] On October 3, 2018, officers of the Toronto Police Service executed a search warrant at residential unit # 618 at 16 Dallimore Circle in Toronto. They were acting on information that a user of the so called “peer-to-peer” software, “Shareaza”, had downloaded and uploaded numerous files containing child pornography (sometimes “CP”) from an Internet Protocol (“IP”) address associated with that residence.

[2] When the police knocked on the door at approximately 0618 hours, it was answered by the accused, Ryan Simpson. Nine police officers entered the apartment that he shared with his wife, Nora Simpson. Within 15 minutes, after searching a home office/computer room, police found, among a number of other electronic devices, an HP desktop computer S/N USC 3160970 (Property Tag # 6585346).

[3] They seized that computer after initial examination confirmed that it contained a significant amount of child pornography. Later forensic examination revealed that the two hard drives within the impugned computer contained 996 unique images and 852 unique videos, all of it containing child pornography.

[4] The Defendant is charged with two counts each of possessing and accessing child pornography, and one count of making child pornography available. These offences are alleged to have occurred over a period of six months between May and October of 2018.

[5] At the commencement of the trial, conducted over five days by Zoom, the Crown sought voluntariness rulings relative to alleged “utterances” and “statements” made by the respondent to police:

(i) The first was a spontaneous but inculpatory utterance made by the accused to his wife in the presence of police, which the police overheard as they commenced the execution of a search warrant at that residence on October 3, 2018; and

(ii) The second comprises the statements and words spoken in the course of a formally recorded video interview conducted by D.C. Davies and D.C. Jodoin at 32 Division.

That statement was recorded later in the morning following Mr. Simpson’s arrest, and after he had spoken to duty counsel. A DVD recording and transcript of that statement was entered as an exhibit on this voir dire.

[6] The trial proceeded as a blended voir dire and trial, with the evidence to be received both on the voluntariness application and in the ultimate determination of whether the charges are proven beyond a reasonable doubt. The accused testified, but only for the purposes of the voir dire.

[7] These reasons contain my rulings on (i) whether the accused was detained, (ii) the Crown’s voluntariness application on the initial utterances, (iii) the Defence challenge to the admissibility of those statements based on ss. 7 and 10(b) of the Canadian Charter of Rights and Freedoms[^1] (the “Charter”), (iv) the voluntariness and admissibility of the video statement of the accused after he had received legal advice, and finally, (v) my reasons for judgment on whether Crown counsel has proven the charges themselves on the available evidence beyond a reasonable doubt.

Overview

[8] The investigation that led to these charges commenced when D.C. Earl Davies of the TPS was attending a continuing education course at Police College in August of 2018. D.C Davies has been a member of the Child Exploitation section of the Toronto Police Service Human Trafficking Unit for 12 years. As part of the course he was attending, designed to teach enhanced investigation and tracing techniques relating to so-called “peer to peer” (sometimes “P2P”) sharing networks, he was tasked with a live assignment to look on the Internet for Internet Protocol (“IP”) addresses in the Toronto area that appeared to contain and be active in sending, receiving and possessing child pornography. A search of the Internet can reveal the presence of child pornography on individual computers anywhere in the world, because every computer device in the world has an entirely unique IP identification number assigned to that computer alone.

[9] On August 21, 2018 D.C. Davies identified a computer address that appeared to be participating in the uploading, downloading and exchange of “pre-teen hardcore pornography”(“PTHC”). The IP number of that computer was IP 184.146.206.171. By browsing files at that location the officer could see key words identifying the presence of CP. D.C. Davies noted the names of three specific files. He identified that the user at that IP address was using the Shareaza software to access the P2P network. Importantly, Shareaza is not a broad based collectivity user tool, but instead creates only one direct computer and Internet link with the end user. D.C. Davies successfully instructed his computer to download files from IP 184.146.206.171. The summary reports generated by Shareaza of the files downloaded from IP 184.146.206.171 revealed four video files and five files consisting of only single still images. D.C. Davies determined that all of the video files and most if not all of the still images constituted CP within the meaning set out in s. 163.1 of the Criminal Code of Canada (the “Code”). He was able to complete the downloads of the target material on August 24, 2018 when he observed the presence of “Globally Unique Identifiers”(“GUIDs”)

[10] Next, D.C. Davies generated a new case number and commenced his investigation of the IP 184.146.206.171, which was attached to the Bell Canada network. By September 14, the police had obtained a production order. When Bell disclosed the account information, it revealed that the account was in the name of Nora Simpson, with an email address of noramien@hotmail.com, and a residential address of residential Unit 618, at 16 Dallimore Circle in Toronto. The account information also disclosed a secondary user on the account, Ryan Simpson.

[11] Armed with this information, D.C. Davies learned the address associated to IP 184.146.206.171, and he learned that Nora Simpson of that address had filed a motor vehicle accident report in 2014. He did other confirmatory investigation through open source checks like Facebook, conducted MTO searches for both Ryan and Nora Simpson, and personally conducted surveillance on the building where they lived. Once he had confirmed that the appearance of the two individuals who lived there was the same as the photos he had of Nora and Ryan Simpson, found on Facebook pages and in government licensing records, and that this was the location where the target IP address was located, D.C. Davies prepared an Information to Obtain a search warrant under the Code. A first warrant was issued but it contained an administrative error, so a subsequent warrant was issued on September 27, 2018. It authorized police to enter and search the Simpson residence on October 3, 2018 between 0600 and 1700 hours.

[12] On October 3, as Officer in Charge, D.C. Davies called a briefing for 0528 at 32 Division. It was short. It ended six minutes later at 0534. He had recruited a number of officers to assist in the execution of the warrant. These included D.C. Jodoin who served as assistant to the OIC, P.C. Saini as the technical forensic officer, D.C. Alexa as the exhibits officer, and D.C. Marks (the only female officer), D.C. Bai, D.C. Firth and D.C. McInnes. All of these officers were in plain clothes and driving unmarked cars, but there was no uniformed police officer in a marked scout car brought along or stipulated to be available in case an arrest was made and a suspect required transport to the police station for booking or be allowed to promptly exercise rights to counsel.

[13] D.C. Davies confirmed in his evidence that both Nora Simpson and Ryan Simpson were “persons of interest”, but he testified that neither was yet “arrestable.” I find, however, that the evidence as a whole compels the opposite conclusion. They were both potentially arrestable and it is plain from D.C. Jodoin’s evidence that he clearly had a different view from D.C. Davies and believed an arrest would be made that day. He knew from the briefing that there were believed to be two lone occupants residing at the target address, and that those known occupants would be Ryan and Nora Simpson.

[14] The police knew that Nora Simpson worked for Bell. They had information that her husband worked with computers at IBM in an earlier job, and was presently working in a high-tech capacity at Manulife. When asked what the expression "preview prior to arrest" meant, as reflected in his notes, D.C. Jodoin explained that prior to an arrest being made, the police would want to confirm whether there were only the two known occupants in residence, or other persons as well.

[15] D.C. Jodoin knew D.C. Davies had already observed child pornography associated with the computer in the search location for the IP address associated to that residential address. That made him quite confident that someone from that IP address was downloading child pornography, so it had to be somebody with access to that apartment and access to that computer. He did not know which, if not both of the occupants, or someone else would be arrested, but it was clear to him and he testified that an arrest would definitely be made that day. The police had also determined they would make a so-called “soft entry”, that is, without breaking down the door, because there were no concderns for the preservation of evidence or officer safety.

[16] When the police arrived at 0606, 32 minutes after the briefing ended, and then knocked on the door of Unit # 618 on October 3, 2018, at 0618, Mr. Simpson threw on jeans and a T-shirt and went to answer the door. His wife, Nora Simpson, was asleep in their bedroom. The nine undercover police officers involved rushed past him into the apartment. The only female officer, D.C. Marks, went into the bedroom to awaken Mrs. Simpson. She did not respond to a verbal request to awake, because she slept with earplugs. Instead, she awoke with a start when D.C Marks touched on the shoulder. Once she awoke, she was allowed time to dress, and then D.C. Marks escorted her to attend the living room to sit beside Mr. Simpson on their couch.

[17] At 0622, D.C. Davies handed the couple a copy of the search warrant that had been issued authorizing the search, and they reviewed it while the officer explained why the police were there to search the residence, and the process they would follow.

[18] Moments later, Mr. Simpson asked to use the washroom. D.C. Davies accompanied him to the washroom in the Master Bedroom. The officer remained in the bedroom with Mr. Simpson, and also insisted that the accused keep the bathroom door ajar while he used the facilities. As he emerged, Mr. Simpson asked to speak to D.C. Davies alone, out of his wife’s presence. Davies said Mr. Simpson’s eyes began to tear up as he made a first self-incriminatory utterance. He said, “the stuff is all mine. My wife has nothing to do with any of this.”

[19] D.C. Davies stopped him from speaking further. He gave Mr. Simpson an informal, casual type of warning, a caution in casual language, sometime between 0622 and 0629. The exact words, as he recalled them, were: “I told him to stop talking, that anything else he tells me I'm going to write down, and if he tells me anything else it could cause him to get into further trouble, or get ‑‑ to get into trouble.” This is not the formal caution that is normally provided to suspects, and specifically, it contained no informational component to advise Mr. Simpson of his right to retain and instruct counsel without delay.

[20] Mr. Simpson was then escorted back to sit on the couch beside his wife. Mrs. Simpson was very upset and weeping. It was at this time, as they were looking at the warrant, that his wife allegedly said to him, through her tears, “this must be a mistake.” The police officers’ notes are not entirely consistent, as I will discuss, but Mr. Simpson allegedly replied, “they’re going to find what they’re looking for. [pause] There is child porn here. [pause] It is what it is”, while rubbing her back. D.C. Davies and D.C. Bai both claimed to overhear these spontaneous utterances. Each of them were standing between 3-5 feet away from Mr. and Mrs. Simpson at the time of the utterance, D.C Davies close to Mr. Simpson and D.C. Bai at the other end of the sofa, closer to Mrs. Simpson. However, their records of what was said and the context in which it was said were arguably significantly different in their respective recollections.

[21] Only minutes later, at 0633, D.C. Davies received confirmation from D.C. Jodoin that D.C. Saini had found child pornography on the desktop computer in the home office/computer room of the residence. In the absence of a uniquely identifying signature belonging to Mr. Simpson on those computers, and absent his utterance, there was no evidence of what caused police to determine that the person who was viewing CP was Mr. Simpson and that he alone should be arrested. D.C. Davies asked Mr. Simpson to come with him alone into the bedroom, separate from Mrs. Simpson. The officer placed Mr. Simpson under arrest and only then formally informed him of his Rights to Counsel. When asked whether he wished to speak to counsel, Mr. Simpson said he would, but later. D.C. Davies made an audio recording of that arrest, and both the recording and transcript of the arrest audio were entered as Exhibits 17(a) and (b).

[22] Four minutes later, at 0637, someone called for a police scout car to transport Mr. Davies to 32 Division. D.C. Jodoin thought he made that call. Even though there were nine police officers present for the execution of the warrant, the police on scene had to wait for a scout car to transport Mr. Simpson to 32 Division. They had to wait because all of the officers involved in the execution of the warrant were in plain clothes, and in unmarked vehicles, but prisoners are required to be transported in marked vehicles.

[23] It is not known how long it took for police radio dispatch to radio for a scout car after the initial call was made, but a uniformed officer, P.C. Buggea, did not finally arrive to take control of Mr. Simpson until 0748, more than an hour after he was arrested. At 0810, a half hour later, Mr. Simpson was again informed of his rights to counsel during the transport to 32 Division, and he acknowledged his understanding by stating “yes I believe so” and confirmed he understood why he was under arrest by stating, “yes I do”. The transport video was identified as Exhibit 20 on the blended voir dire and trial.

[24] At 0855 am, during the booking process in front of Staff Sgt. Lloyd, Mr. Simpson confirmed he wanted to speak to Duty Counsel and understood why he was at the station by answering “yes”. The booking video is Exhibit 21.

[25] At 1023, having finally spoken to Duty Counsel, been offered food, and having used the washroom, Mr. Simpson was interviewed on video by D.C.’s Davies and Jodoin – Exhibit 18(a) and (b). In the course of that interview, D.C. Davies engaged in a number of long monologues. Based upon the advice of duty counsel, Mr. Simpson repeatedly stated that he did not wish to answer their questions. Nevertheless, the officers persisted in asking questions and ultimately, over the course of the interview, the accused did provide certain utterances and factual acknowledgements to the police.

Issues

[26] For a brief five-day blended voir dire and trial, there are a panoply of issues to be determined in this case. They include the following:

(i) Whether the police detained the accused and his spouse when they commenced the execution of the search warrant at the defendant’s home;

(ii) Whether the initial utterances made by the accused and overheard by police were voluntary and otherwise admissible in evidence against him under common law rules;

(iii) Regardless whether the defendant’s initial utterances were voluntary, did police breach his s. 10(b) Charter right to retain and instruct counsel without delay

(iv) If so, are any utterances made before he received a formal caution and notice of his rights to counsel prima facie inadmissible against him, and not saved by s. 24(2) of the Charter;

(v) Whether the “statements” made to police in the course of the videotaped interview with the defendant, after he was formally cautioned and after he had exercised his rights to counsel, are admissible or inadmissible as involuntary based on alleged circumstances of oppression; and

(vi) Even if the all of the utterances of the defendant are ruled inadmissible, is the remaining circumstantial and physical evidence that is admissible, and the reasonable and non-speculative inferences that may reasonably be drawn from that evidence, sufficient to establish the guilt of the accused of these offences beyond a reasonable doubt.

Some relevant legal principles

[27] The decision of the Supreme Court of Canada in R. v Oickle[^2] is the leading case on the voluntariness rule since the advent of the Charter. In Oickle, the Court reaffirms that when statements are given by an accused to a person in authority (a police officer), the statement is presumptively inadmissible and the burden is on the prosecution to establish voluntariness beyond a reasonable doubt.

[28] An assessment of the voluntariness of a statement is “highly fact specific.” As the Trial Judge, I am required to engage in a contextual analysis that considers all of the relevant factors when assessing voluntariness. These factors include (i) whether threats or promises were made to induce the statement, (ii) the presence of oppression, (iii) whether the person making the statement had an “operating mind”, as the case law has described it, and finally (iv) whether there is evidence of the statement having been induced by any other “police trickery.”[^3]

[29] The law is clear that voluntariness includes conformity with both the common law and the constitutional right to remain silent. It involves the exercise of free will in choosing whether to speak to the police or to remain silent. That is why the standard police caution informs a person of his or her right to remain silent: it ensures that a person of interest or suspect knows before they provide a statement to the police or other persons in authority that they have a common law right to remain silent.[^4]

[30] This in turn engages the Charter protected values in sections 7, and 10(b) that require that targets of police investigations must be cautioned and given their rights to counsel in circumstances of detention. In R. v. Singh, the Supreme Court of Canada instructs that the police should give a caution when they have reasonable grounds to suspect the person with whom they are speaking has committed an offence. Referring to other authorities, at paras. 32-33, the court notes, in part, as follows:

…The importance of reaffirming the individual’s right to choose whether to speak to the authorities after he or she is detained is reflected in the jurisprudence concerning the timing of the police caution. René Marin, in his text Admissibility of Statements (9th ed. (looseleaf)), at pp. 2-24.2 and 2-24.3, provides a useful yardstick for the police on when they should caution a suspect:

The warning should be given when there are reasonable grounds to suspect that the person being interviewed has committed an offence. An easy yardstick to determine when the warning should be given is for a police officer to consider the question of what he or she would do if the person attempted to leave the questioning room or leave the presence of the officer where a communication or exchange is taking place. If the answer is arrest (or detain) the person, then the warning should be given.

33 These words of advice are sound. Even if the suspect has not formally been arrested and is not obviously under detention, police officers are well advised to give the police caution in the circumstances described by Marin. Of course, with the advent of the Charter, the s. 10 right to counsel is triggered upon arrest or detention. The right to counsel has both an informational and an implementational component. It seeks to ensure that persons who become subject to the coercive power of the state will know about their right to counsel and will be given the opportunity to exercise it so they can make an informed choice whether to participate in the investigation against them. Therefore, if the detainee has exercised his s. 10 Charter right to counsel, he will presumably have been informed of his right to remain silent, and the overall significance of the caution may be somewhat diminished. Where the suspect has not consulted with counsel, however, the police caution becomes all the more important as a factor in answering the ultimate question of voluntariness.^5 [My emphasis]

[31] These passages emphasize the importance of a caution in the contextual assessment of voluntariness, when the accused has not exercised his or her right to counsel.[^6] In such cases, courts have on numerous occasions found that such statements were not proven to be voluntary.[^7]

[32] Despite the admonition in Oickle, there is no requirement to record a statement in a particular way, but the Crown still bears the onus to establish a sufficient record of the interaction between the police and the suspect to permit a conclusion of voluntariness to be reached. I am required to scrutinize and assess the completeness, accuracy and reliability of the record of the statement given the Crown’s burden to prove the statement voluntary.

[33] The right to counsel and the voluntariness rule are complementary, but different. In R. v. Holmes[^8], the learned Justice Rosenberg explained that the state is required to permit a suspect to make an informed choice whether to speak to them, and potentially assist in his own prosecution, but also even where there is proof that the suspect exercised his Charter guaranteed right to counsel, that will not necessarily establish that any statement made was voluntary. Rosenberg J.A. emphasized that all of the circumstances must be taken into account contextually when determining the voluntariness of a statement. The fact that a suspect was able to consult with a lawyer is simply one, albeit an important, circumstance.

[34] Finally, the Supreme Court’s decision in R. v T. (S.G.)[^9] instructs that I must also take a contextual and fact-based approach in assessing whether a determination that one statement is inadmissible, either as involuntary or for breach of Charter compliance, can or should lead to a determination that another statement be ruled inadmissible.

[35] In assessing the degree of connection between statements, a number of factors must be considered, including “the time span between the statements, advertence to the previous statement during questioning, the discovery of additional incriminating evidence subsequent to the first statement, the presence of the same police officers at both interrogations and other similarities between the two circumstances”.

[36] If an analysis of those factors demonstrates that the two statements are connected, but that the second statement is claimed to be tainted by the first, I will need to determine whether the contents of the second statement can nevertheless be received under s. 24(2) of the Charter. In considering this question, the analysis of Watt J.A. in R. v. D. (M.), sets out the tests to be applied.[^10]

Analysis

(i) Was the Defendant detained?

[37] In R. v. Edwards[^11], the court observed that “[d]etention may come in many forms.” In his analysis that canvasses earlier authorities, Whelan J. notes that the limits of detention could range from potentially involving explicit control by the police or subjecting the citizen to police commands, to a mere fleeting circumstance or an ongoing delay.

[38] In the Supreme Court’s seminal decision in R. v. Therens,[^12] Le Dain J. observed that a person will be considered to be detained where he or she submits or acquiesces to being deprived of their liberty, in circumstances where they reasonably believe that there is no alternative or choice available to them.^13 The detention thereby removes the subject’s sense of intellectual or physical freedom to do otherwise. Where those circumstances are present, section 10(b) triggers the availability of the detainee’s right to counsel, which protects their freedom to choose whether to cooperate with the authorities in an investigation by giving a statement.

[39] Physical detention does not depend on the intention of the police, but rather on an objective view of their action in directing or taking control of a person.[^14] There was no physical detention or physical restraint exercised here. Mr. Simpson was not placed in handcuffs until after he was arrested and was being transported to 52 Division by Officer Buggea. Neither, does he appear to have been subjected to direct verbal commands before he was formally arrested.

[40] However, psychological constraint amounting to detention has also been recognized in situations where the subject is not legally required to comply with a restrictive or coercive direction or demand, but where a reasonable person in the subject's position would feel obligated to comply and not free to leave.[^15] Thus, the Supreme Court recently observed in R. v. Le[^16] that:

Most citizens, after all, will not precisely know the limits of police authority and may, depending on the circumstances, perceive even a routine interaction with the police as demanding a sense of obligation to comply with every request (see S. Penney, V. Rondinelli and J. Stribopoulos, Criminal Procedure in Canada (2nd ed. 2018), at p. 83).

[41] To determine the psychological state of the accused, and the expectations of the police officers in this case at the time the warrant was executed on October 3, 2018, it is useful to consider the timeline of events that took place, before and during the execution of the warrant.

[42] At 0528 hours, a briefing was held in relation to the planned execution of the search warrant at the Defendant’s home. D.C. Davies testified that he thought that the Simpson’s were simply persons of interest and not arrestable at that time, but D.C. Jodoin’s notes seem to contradict that position. He felt it was clear, as I do, that the officers went to the residence with the specific intent to make an arrest.

[43] Ryan and Nora Simpson were the known occupants of the residence to be searched and the targets of the search. D.C. Jodoin testified that someone was going to be arrested that morning. Given the information then in possession of the police, the only thing preventing them from arresting somebody, was the need to turn on of the computer with the address IP 184.146.206.171 and to confirm the images that were located there, because they otherwise had all the information they needed for a warrant. The police obtained their search warrant based on “reasonable and probable grounds” that there was child pornography on that computer. As D.C. Jodoin said, it was just a matter of having that confirmation, following which somebody, either or both of the two known occupants of that residence, was going to be arrested.

[44] At 0618, the search warrant was executed and the police assumed control of the premises. The defendant’s wife, Nora, was asleep, but she was awakened by a female police officer entering their bedroom and tapping her on her shoulder. Officer Marks acknowledged that Nora Simpson was startled to be awakened by a police officer since she sleeps with earplugs and had heard nothing up to that point.

[45] At 0622, D.C. Davies’ notes indicate that the respondent “asks to use washroom.” At 0625, D.C. Firth noted that the respondent was “provided” a glass of water “at his request”. D.C Davies testified that he was controlling the situation but that Mr. Simpson was free to move about within the apartment “within reason”, as he, the Officer-in-Charge, might and would determine, but that was plainly subject to his direction ad control.

[46] The Crown argues there was no psychological or physical detention in this case because the defendant was free to roam about his home and sit where he desired. I accept that not every police-citizen interaction will become a detention within the meaning of s. 9, but it is evident to me and I find that there was a “significant physical or psychological restraint” present in this case.

[47] Nine police officers, all in plain clothes with “POLICE” vests on, all armed and one armed as well with a Taser, moved in quickly to take control of and secure the respondent's apartment. There is no doubt in my mind that this was a show of force that would leave the impression that compliance by Mr. and Mrs. Simpson was not a mere suggestion or optional.

[48] Whether Mr. Simpson was directed to sit on the couch is unclear, but it seems he was pointed in that direction and that he got the message. Once Mrs. Simpson was awakened, she was directed by D.C. Marks into the living room and ended up sitting upon the same couch immediately next to Ryan Simpson. It seems most likely to me that she was directed to do so, because that was a position of safety and the police could control his and their movements from that point on.

[49] Specifically, the presence of a control and power imbalance in these circumstances is also evident in the positioning of D.C.’s Davies and Bai, stationed at either end of that sofa, in close proximity only three to five feet away from the defendant and his wife. In his evidence, D.C. Davies explained that the reason he stood where he did was because that was where the balcony door was located. He was standing there to make sure that Mr. Simpson did not escape. However, there was not a scintilla of evidence to suggest this was a meaningful risk. This acknowledgement adds to the weight of two conclusions: first, that absent D.C. Davies’ permission, Mr. Simpson's right of movement was limited to the couch in the living room, and second that Mr. and Mrs. Simpson were detained.

[50] D.C. Davies admitted in cross-examination that the accused was not free to leave the apartment, and Ryan Simpson testified that he felt he could not leave. Mr. Simpson testified on the voir dire that he felt he was not at liberty to do anything, but sit there on the couch in the living room beside his wife while there were nine police officers roaming and combing through their small apartment, consisting of only about 1,000 square feet.

[51] I find that elements of psychological detention are also evident in Mr. Simpson’s own behavior. He felt the need to ask the police for permission to use his own bathroom in his own home, and even then he was followed into the bedroom and required to keep the door ajar with D.C. Davies standing watch just outside that door as Mr. Simpson used the facilities. When he wanted a glass of water, he felt compelled to ask permission – to ask if he could be provided with a glass of water from his own kitchen.

[52] In summary, I find that this was a focused and controlled criminal investigation of two individuals who were clearly arrestable before the police arrived, based upon the prior investigation of D.C. Davies and the precise identification characteristics of the IP number of the computer that they knew was inside, within the confines and control of the defendant’s home. D.C. Davies had identified child pornography on this particular computer connected to this particular IP address. On that basis police had more than “reasonable grounds to suspect”, the lower threshold that would have engaged the need to caution the targets immediately upon arrival, and the police could have arrested either or both of the two known occupants upon their arrival, and then seized the computer.

[53] Since I have found that the defendant and his wife were detained within the meaning of s. 9 of the Charter from the beginning of the execution of the warrant, a caution should have been given to Mr. and Mrs. Simpson at that time. They were entitled to be advised of their rights to retain and instruct counsel of their choice or duty counsel without delay, at that time, not hours later.

[54] In the absence of being advised of those rights, any statements made by Mr. Simpson to a person in authority, such as D.C. Davies, clearly were made in contravention of the protections of s. l0 of the Charter, and as such are prima facie inadmissible. I will return later to consider the seriousness of the Charter breaches in this case, and whether the statements obtained, either initially or during the recording of Mr. Simpson’s video statement, should be excluded on an analysis under R. v. Grant.[^17]

(ii) Were the first utterances voluntary and admissible?

[55] The Crown seeks to introduce the incriminating utterance made by the respondent to his wife that was overheard by D.C. Davies and D.C. Bai, as voluntary and admissible.

[56] Contextually, the accused was sitting beside his wife on their living room sofa, with two police officers standing less than five feet away, while she was reading the warrant, and then apparently looked to him. He was looking at the warrant with his wife, Nora Simpson, at the same time.

[57] The Crown argues that the utterance overheard was, "they're going to find what they're looking for. There is child porn here. It is what it is", but the actual notation provided by D.C. Davies as reflected in his notes shows them as three separate and distinct quotes.

[58] In R. v. Ferris[^18], the leading decision in Canada dealing with overheard utterances, the Supreme Court affirmed the Alberta Court of Appeal's decision that the utterance in issue there had no probative value, given that it was void of context and because it was extremely prejudicial. Sopinka J. wrote:

In our opinion, with respect to the evidence that the respondent was overheard to say "I killed David", if it had any relevance, by reason of the circumstances fully outlined by Conrad J.A. [reported at (1994), 1994 ABCA 20, 27 C.R. (4th) 141 (Alta. C.A.)], its meaning was so speculative and its probative value so tenuous that the trial judge ought to have excluded it on the ground its prejudicial effect overbore its probative value.

[59] Ferris was followed in this province in R. v. Hunter[^19] where Goudge J.A. wrote as follows at para. 19:

In my view, Sopinka J.'s reasoning is anchored in the important role that context can play in giving meaning to spoken words. Where an overheard utterance is known to have a verbal context, but that context is itself unknown, it may be impossible to know the meaning of the overheard words or to otherwise conclude that those words represent a complete thought regardless of context. Even if the overheard words can be said to have any relevance, where their meaning is speculative and their probative value therefore tenuous yet their prejudicial effect substantial, the overheard words should be excluded.

[60] The Defendant argues that the utterances allegedly made to his wife should not be admitted, not only because he claims they were effectively elicited by the police officers, who were persons in authority, but also because the absence of context and inconsistency in the evidence of what was said means that they cannot be relied upon, either for the inferences sought to be drawn or as voluntary.

[61] Even if the utterances made between them while Mr. Simpson and Mrs. Simpson were sitting on the couch were not made directly to persons in authority, they were certainly overheard by persons in authority. I find it difficult to accept that was a mere coincidence.

[62] Ryan and Nora were not responding directly to questions put to them by D.C. Davies and D.C. Bai, but in my view, despite D.C. Davies’ refusal to acknowledge the obvious, these two persons were put in the position where it was going to be very easy to overhear, if not impossible not to overhear any conversation between them. By seating them together on the couch explaining what they were doing there and then giving them the search warrant to review together, it is plain that D.C. Davies and D.C. Bai were creating a situation which they hoped was likely to elicit a response from Ryan and Nora Simpson, even if only indirectly

[63] This conclusion is supported by the manner in which D.C. Davies and D.C. Bai stationed themselves in proximity to where Ryan and Nora were seated. The officers said they were three to five feet away from the Simpsons, but Mr. Simpson said it was only three feet. I find that to be the more likely distance given the entirety of the evidence on that point, including the photograph of the living room area and the evidence of the police officers pointing to where they were standing. Of course the police did not know there would be a response from the targets, but it would be foolish to suggest they did not hope there would be, and they created circumstances to increase the likelihood of that result. This cannot avoid characterization as a statement elicited by a person in authority, in circumstances where if any utterances were made, they would be heard by persons in authority.

[64] There are three different versions of the utterances. D.C. Davies said he overheard Mrs. Simpson saying "Must be a mistake." And then, following a pause, he testified that he heard Mr. Simpson say "They're going to find what they're looking for" and then a further pause followed by the accused saying "There is child porn here". And then, it is claimed there was a further pause and then Mr. Simpson said "It is what it is."

[65] Given the importance of context[^20], I note that uncertainty on what was said could have been avoided had D.C. Davies recorded that period of time. He was in possession of a recorder, it was powered up, and he did use that recorder to record what was said minutes later when Mr. Simpson was arrested, but unfortunately the recorder was not turned on when the utterances were made. Without attributing malevolence on the part of TPS officers, this is not surprising to me because he would have to have told them his recorder was turned on. Had he done so, it could have easily caused an easing up of conversation and could also have caused any conversation between them to turn off. The authorities recognize that on a voluntariness approach to admissibility, the presence of an inadequate record of what was said may, itself, be a sufficient basis to exclude the utterances.[^21]

[66] Detective Bai was standing beside or very close to Mrs. Simpson, perhaps three to four feet away from her given the configuration of the furniture. He heard things somewhat differently. He heard Mr. Simpson say “They'll find child porn”, and “It is what it is.” However he did not record and did not remember Mrs. Simpson saying “There must be a mistake”, nor did he remember or record the accused saying, “They're going to find what they're looking for.” Both officers say that they heard the accused say “It is what it is”, but Mr. Simpson testified that was not what he said. He also denied that it was a figure of speech he ever used.

[67] D.C. Bai also explained that the conversation between Ryan and Nora Simpson did not just last a second or two. He said it transpired over a matter of minutes, but the evidence simply provides “snippets” of a conversation, a characterization that D.C. Bai agreed was correct in his testimony. As a result, I cannot know the entire context within which the utterances took place, and I cannot know what, if anything, was said before, or in between the words, or in the conversation after the utterance. Both officers claimed that they were not listening to what was being said, but their ears certainly perked up, when they heard this portion of the conversation, and yet their versions of the conversation are different.

[68] D.C. Davies said that “nothing of evidential value” was said between the three separate phrases, or before and after these three statements. His evidence was that in between these statements. He used the word “pause” and “nothing being said in between the statements.” Yet the expression he used was “nothing of evidential value”, an expression which suggests to me that there was something said, but that D.C. Davies’ view was that is had no probative value in this matter. But that is also problematic, because as trier of fact, it leaves me unable to determine whether anything was said, and whether it was of evidential value. While the circumstances are different from Ferris and Hunter, the result is that there are conflicting accounts of what was said[^22], and that potentially important context is missing.

[69] D.C. Bai's evidence was that that there was conversation over a period of minutes. He said “They were just having a conversation. They were not yelling. They were not whispering.” He then reported surprise, “[b]ecause he's confessing to his wife.”… “He virtually confessed to his wife.” Even that evidence is unclear – did he confess or did he not? I am unable to know what the word “virtually” meant in that content.

[70] In summary there are not only conflicting accounts of what was said, but an absence of reliable context as well. The accounts given by the police officers and the account given by the accused all conflict relative to the content of the statement. In these circumstances, I find that the initial utterances of the accused are neither voluntary nor are admissible under common law rules.

(iii) Charter, s. 10(b) Analysis

[71] Even if the initial utterances of the accused are voluntary or admissible under common law rules, I must consider (i) whether police violated the accused’s s. 10(b) Charter rights in their failure to formally caution Mr. Simpson once he was detained, as I have found he was, and (ii) whether they breached the implementational side of those rights since there was more than a three hour delay before the accused was permitted to talk to duty counsel. If either element of the accused’s s. 10(b) Charter rights were breached, the question will be whether his utterances and statement are admissible or ought to be excluded under s. 24(2) of the Charter.

[72] Given my finding that the defendant and his wife were detained within the meaning of s. 9 from the beginning of the execution of the warrant at 6:18 am, their detention triggered the police officers’ obligation under s. 10 of the Charter. A caution should have been given. Further, Mr. and Mrs. Simpson were entitled to be advised of their rights to retain and instruct counsel of their choice or duty counsel without delay. In R. v. Suberu[^23], the Supreme Court instructs what the timeliness of that obligation requires:

41 A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.

Even if the defendant was aware that he had no obligation to speak to the police or to tell them anything, and there was no evidence here that either he or his wife were actually aware of that, it does not obviate the need for compliance with s. 10(b).[^24]

[73] The police did not immediately provide Mr. Simpson or his wife with the formal caution and notification of rights to counsel, and thereby failed to comply with their s. 10 Charter obligations. Crown counsel claims that a short time later, between 6:22 and 6:29 am, after Mr. Simpson used the ensuite washroom in the master bedroom and spoke to D.C. Davies, that he was “cautioned”, and he relies upon this as satisfying the police obligation to caution and provide rights to counsel.

[74] The words, as D.C. Davies recalled them, were “to stop talking, that anything else he tells me I'm going to write down, and if he tells me anything else it could cause him to get into further trouble, or get ‑‑ to get into trouble.” D.C. Davies then escorted Mr. Simpson back to sit on the couch beside his wife. This was not the formal caution that is normally provided to suspects, as contained in printed cards in all police officers’ notebooks, and specifically, it contained no informational component to advise Mr. Simpson of his right to retain and instruct counsel without delay.

[75] The evidence does not explain why D.C. Davies used incomplete and more casual words of warning at that moment, instead of the strong explanatory language that is embraced on the official words of the caution. Defence counsel suggested that it may be because D.C. Davies did not actually want to dissuade Mr. Simpson from making any statements, and the formal words of caution would have had that stronger impact. He did have his notebook with him so he did have the actual formal wording available at that time, but in the moment in reaction to Mr. Simpson, the fact is he simply chose to give Mr. Simpson a more casual warning. The result is the same.

[76] The authorities show, and I find, that s. 10 remained in a state of non-compliance at that time, and that the simple informal caution provided did not meet the informational requirements of the rights to counsel. Both elements are required.[^25] As such, it did not cure the failure to comply formally with section 10 at that time, before the couch utterances were made. Formal caution and rights to counsel were provided to Mr. Simpson only some minutes later, at 0633, coincident with his arrest.

[77] It was at 0633 that the clock started to run on the police obligation to provide the accused with the opportunity to obtain legal counsel from a lawyer of his choice or duty counsel without delay. Mr. Simpson acknowledged at that time that he would want to speak to counsel, but later and just not at that particular moment.

[78] Defence counsel argues there were cell phones present that had been cleared and that could have been used to permit Mr. Simpson to make a call to a lawyer from the privacy of the bedroom. The Crown retorts, however, that circumstances did not permit that. Something untoward might have happened. Mr. Simpson might have tried to harm himself. He could not be left alone. It would only be safe and his privacy could only be ensured if he was delayed in calling counsel until he had been transported and booked at the police station.

[79] In R. v. Rover[^26], Doherty J.A. sets out the nature of the implementational requirements and the limits of acceptable delay. Section 10(b) obliges the police to advise a detained person of the right to speak with counsel without delay and, if the detained person exercises that right, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel. However, he notes that courts have always recognized that specific circumstances may justify some delay in providing a detainee access to counsel, for example in circumstances that relate to police safety, public safety, or the preservation of evidence. Doherty J.A continued at paras. 27 and 28:

27 These cases have, however, emphasized that concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay access only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel. Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel: see e.g. R. v. Patterson, 2006 BCCA 24, 206 C.C.C. (3d) 70, at para. 41; R. v. Soto, 2010 ONSC 1734, at paras. 67-71; Learning, at para. 75; R. v. Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78.

28 Wu, at para. 78, provides a helpful summary of the law. That summary includes the following:

The assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination. The case law on this issue reveals some general guiding principles that provide a framework for this assessment:

a. The suspension of the right to counsel is an exceptional step that should only be undertaken incases where urgent and dangerous circumstances arise or where there are concerns for officer or public safety

e. Police officers considering whether circumstances justify suspending the right to counsel must conduct a case by case assessment aided by their training and experience. A policy or practice routinely or categorically permitting the suspension of the right to counsel in certain types of investigations is inappropriate. [Emphasis added]

[80] It would certainly have been preferable had the police arranged for Mr. Simpson to have contacted counsel while still at the apartment, and I was not persuaded by Crown counsel that the circumstances did not permit that to happen. But even if that was not possible, that is a very long and far cry from then permitting the accused to languish for almost three hours before being put into contact with Duty Counsel by D.C. Jodoin. Moreover, Mr. Simpson is never asked if there is a particular lawyer who he wishes to contact, despite that being part of the obligation as it has been interpreted.

[81] P.C. Jodoin thought he only needed to put Mr. Simpson in touch with “duty counsel” and he made no inquiry whether Mr. Simpson wished him to contact a particular lawyer, or whether he might like to look at a phone book or other resource to assist him in identifying counsel he would like to contact. Once the call was arranged, he simply directed Mr. Simpson to duty counsel, but in doing so, apart from the unacceptable delay that was permitted to occur, he also ran roughshod over the accused’s right to contact counsel of choice.

[82] As Gordon R.S.J. of this court explains in R. v. Fisk[^27], where a detainee chooses to seek advice, the “right to counsel becomes the right to access to counsel.” Police have a duty to provide information and then to facilitate contact with a lawyer. In that case, the accused wanted to speak to counsel of choice but was not provided with the resources to find a phone number and was only permitted to speak to duty counsel. The court admonished that default to duty counsel does not correct the s. 10(b) breach.

[83] Most importantly here, however, is the overall seeming absence of care or understanding on the part of the police of the obligation to permit the accused to access the advice of counsel promptly, without delay. I find this to be the most egregious aspect of the breach of Mr. Simpson’s s. 10 Charter rights, but regrettably, experience in other cases shows that this is not as an uncommon occurrence.

[84] Police take all the necessary steps to properly investigate, obtain and execute a warrant and seize contraband or other evidence of the commission of a crime, but they are seemingly less concerned, even where it was known that an arrest was inevitable or most likely, to put in place measures that will insure an accused person’s right to counsel is exercised on a timely basis.

[85] In R. v. Mazza[^28], R. Raikes J. canvassed the authorities to list the principles emerge relative to permitted delay or suspension of an accused’s rights to counsel. Most importantly, the suspension of the right to counsel is an exceptional step and should not be used by police indiscriminately or as a matter of routine. It must only be for so long as is reasonably necessary and the determination of whether a detainee's right to counsel may be suspended or whether delay is permissible, will always be a function of the specific circumstances. In addition, he identifies three other principles of importance here:

(i) the suspension of the right will be permitted where there are reasonable grounds to believe that police or public safety may be imperilled if the right to counsel is permitted to be exercised immediately;

(ii) generally, delay may be permitted where the offence involves weapons or violence and ongoing or anticipated police action connected to the detainee and/or the activity that gave rise to the detention; and

(iii) the suspension of the right to counsel is a serious infringement of an important constitutional right that should be invoked by police only where the competing interests outweigh implementation of the right to counsel without delay.

[86] I can find none of these factors, or others present, that can justify the delay in this case in allowing the accused to exercise his rights to counsel. I find two telling aspects to this case that make the point: the first is what police knew before executing the warrant, and the second is the timeline from the time of arrest until the time Mr. Simpson was put in contact with duty counsel.

[87] As I have indicated previously, despite D.C. Davies’ view that Nora Simpson and Ryan Simpson were merely “persons of interest”, the entirety of the circumstances and the evidence of D.C. Jodoin showed that both of the target persons were “arrestable” at that time. Yet, despite that knowledge or at least strong belief or suspicion, no steps were taken to plan ahead to ensure any persons arrested would be able to be transported quickly to the Division and be permitted there to exercise rights to counsel as soon as possible.

[88] When an arrest is made, TPS policy only permits a suspect to be transported to the police station for booking by a uniformed police officer in a marked scout car. In this case, all nine of the officers who participated in the search were in plain clothes and driving unmarked cars. None of them were capable of transporting any arrested person. There was no uniformed police officer in a marked scout car brought along, or put on standby in case an arrest was made. That omission alone increased the likelihood of delay in accessing legal advice.

[89] Second, the timeline of the transportation of the accused reveals that neither the officer in charge, D.C. Davies, nor any of the other eight police officers who executed the warrant, seemed to regard transportation of Mr. Simpson to the Division to permit him to access legal advice as a matter of any urgency, certainly not so important to cause them to repeatedly call for transport, instead of being entirely focused on the CP content of the computers.

[90] While there was some uncertainty, I believe the request to transfer the accused to 32 Division was made by D.C. Jodoin at 0637, but it then took almost an hour, or at least until 0725 for uniformed Officer Buggea to arrive in a marked scout car to transport the accused.

[91] Although he arrived on scene at 0725, P.C. Buggea did not leave the residence to commence the transport to 32 Division until 0809. He arrived at 0841, about a half hour later. The accused was paraded at 0852. D.C. Jodoin then arrived at 32 Division at 0915, called duty counsel at 0921, and finally, at 0940 the accused was permitted to speak to a duty counsel. That means it took 3 hours and 7 minutes to implement Mr. Simpson’s right to counsel.

[92] Ryan Simpson was not allowed to exercise his right to counsel in his apartment, even if there was a landline or a phone in the apartment that could have been used, say, Nora Simpson’s cellphone which police had cleared. Officer Davies said there was no privacy, but given that D.C. Marks and D.C. Davies had both spent time in the bedroom, waking Mrs. Simpson, checking it out and watching Mr. Simpson while he used the washroom, there was no adequate explanation in my view for not permitting him to make the call at that time.

[93] There was no explanation for the delay of three quarters of an hour in commencing the transport of the accused. P.C. Buggea arrived on scene at 0725 but he did not leave until 0809, yet he was not part of the investigation, the accused had already been read his rights to counsel, and it is evident he was no longer required at the search address since the call for transport was made at 0637.

[94] But even once Mr. Simpson arrived at 32 Division, no call is made. D.C. Davies had said a telephone would be made available to Mr. Simpson “at any reasonable time” to make calls, and certainly another officer at 32 Division, or the Staff Sargeant, could have placed the call for Mr. Simpson. Instead, for unexplained reasons, no call was initiated until 0921, forty minutes after D.C. Jodoin arrived back at 32 Division at 0841. The promise was made but as the timeline shows, honoured more in the breach than in the observance.

[95] There was no evidence put before me to satisfactorily explain any of these delays. Neither in my view do any of these causes of delay fall within the permissible reasons articulated in Mazza or that fall within Doherty J.A.’s acknowledgement of exceptions to the rule that rights to counsel must be implemented promptly. The categories of permissible causes may not be closed, but there is nothing here relating to preservation of evidence, or public or officer safety that intervened to prevent the accused from being able to obtain legal advice long before he did, soon after his rights were read to him.

[96] It is trite that the explanation of the right has no meaning if it is not implemented without delay, as promptly as reasonable circumstances permit. It follows that any and all utterances obtained by police before the implementation of Mr. Simpson’s rights to counsel at 0940 on October 3, 2018 were obtained in breach of Mr. Simpson’s rights under s. 10 of the Charter.

(iv) Charter, s. 24(2) analysis

[97] It remains to conduct the three-step analysis required under R. v. Grant to determine whether this evidence obtained prior to the exercise of the accused’s Charter rights should be excluded from evidence on the basis that its admission under s. 24(2) would bring the administration of justice into disrepute. In reaching that determination, I am required to consider all the circumstances surrounding the evidence obtained in violation of the accused’s Charter rights. In the result, I find these initial utterances must be excluded.

[98] The first step requires an assessment of the seriousness of the Charter infringing conduct of the state. The focus is to preserve public confidence in the rule of law and the processes that are the foundation of our legal system. As such, evidence obtained through inadvertent or minor Charter violations will likely favour admissibility, but evidence obtained through wilful or reckless state disregard of Charter rights will favour exclusion. Where police authorities have acted in good faith, there will be less need for the court to disassociate itself from the impugned police conduct.

[99] I find that the Charter breaches in this case are serious. There is not one breach: there are a number, and in my view, none of them can be overlooked as a mere technicality. Second, the matter is serious because of the aggregation of a number of breaches.[^29] Even if one accepts Crown counsel’s position that the casual informal warning given by D.C. Davies was enough to save what followed it, and I have rejected that submission, the continuing failure thereafter to facilitate Mr. Simpson’s ability to exercise his s. 10(b) rights was even more serious.

[100] In R. v. Pino, above, the trial judge found that the police's failure to facilitate Ms. Pino’s right to counsel without delay was a “clear and serious breach” of s. 10(b), reflecting the police's disinterest in her rights. The Court of Appeal confirmed that that finding alone materially elevated the overall seriousness of the Charter breaches in that case, and showed how those breaches seriously compromised the Charter protected values of the accused.

[101] First, in this case, there was a failure to either caution Ryan or Nora Simpson, or to inform them of their rights to counsel, when they were detained, as I have found they were, at the commencement of the police execution of the warrant. Second, the casual caution given in the bedroom by D.C. Davies, far from curing the initial breach as Crown counsel contends, to my mind exacerbates it because it is incomplete when there was no reason at that time for the officer to not have provided the formal caution and rights to counsel. I find that to be a serious breach. Failure to provide one with their rights to counsel should never be considered to be a mere technical breach.

[102] Moreover, the seriousness of the breach is compounded by the continuing factors. The failure to implement the right to counsel in a timely fashion adds weight to the seriousness of the conduct, and the failure to allow the accused the right to even consider counsel of choice, or at least ask him if there was a specific lawyer he wished to try to contact, while not perhaps entirely damning on its own, adds further weight to the serious nature of the police conduct.

[103] Defence counsel suggests that these breaches in aggregate establish bad faith on the part of the police. He also suggests that the manner in which D.C. Davies set up Ryan and Nora Simpson in their living room to provide a statement prior to consulting with counsel, or being given their rights to counsel or caution, is an intentional police technique, which amounts to bad faith.

[104] I do not agree. To my mind the breaches instead betray sloppiness, a seeming lack of concern and incomplete Charter compliance, despite years of admonition from the courts. They are no less serious in those circumstances, however, and it is true that continuing failure to respect known and proclaimed Charter values may approach bad faith. I do not find the police conduct to be acceptable, but I would not make that finding here.

[105] One of the most serious aspects of the Charter violations in this case, in my view, is the totally lax and seemingly carefree police approach to implementation of the right to counsel. There was no persuasive or compelling reason for not permitting Mr. Simpson to exercise his rights to counsel in his own apartment, but even if that was excusable, there was no reason for the police to not have planned ahead, knowing how they believed events would unfold, to ensure that if one of them could not transport Mr. Simpson to permit him to exercise his rights, someone else would be on standby to do so. I find the willingness to permit a further three hours to pass before Mr. Simpson was connected with duty counsel, without even asking if there was a particular lawyer he wished to contact, is inexcusable. Based on their own evidence, the police should have foreseen the necessity of having transport available on a timely basis. That they did not is slipshod, careless and demonstrates a lack of care to ensure that Charter rights are respected.

[106] Both the informational and the implementational portions of their right to counsel, in this particular case, were breached, and for all of these reasons I consider it to be a serious breach, or aggregation of breaches of one of the most important Charter rights. It is a conclusion under step one that I find must strongly favour exclusion of the inculpatory evidence.

[107] The second step in Grant requires consideration of the effect of the breach on the accused’s Charter protected interests, and the extent to which the conduct undermines those interests. The impact may range from fleeting and technical to profoundly intrusive. As the impact of the breach on the protected interests of the accused increases in its seriousness, there will be greater risk that admission of the evidence will bring the administration of justice into disrepute in the eyes of the ordinary citizens of this land.

[108] Crown counsel argues that there was no impact on the Charter protected interests of the accused but I reject that conclusion and found this line of argument to be entirely unpersuasive. There was an important impact on Mr. Simpson’s Charter protected interests because in circumstances where it was fully expected one of the two occupants of that residence would be arrested and charged with offences involving CP, the failure to provide Mr. and Mrs. Simpson with a proper caution when they were obviously detained, put them in a position where any utterances that might have been made between them would have been capable of being overheard, thereby creating evidence capable of being used against the accused.

[109] Had the proper caution been provided at the time it ought to have been, rather than only later after the accused made the initial utterances, the accused would have been put on notice of the jeopardy he potentially faced from any utterances he might make. Had that notice and caution been properly given, I understand well that this accused may still have voluntarily made inculpatory statements or utterances – the case law contains many examples of accused persons seeking to unburden themselves by confessing to their unlawful conduct. But here, one cannot conclude that the utterances were voluntary or made by Mr. Simpson to unburden himself, because they were given without the benefit of police respecting his constitutional right to be cautioned and to be given rights to counsel from the moment that he and his wife were detained.

[110] As noted above, the law over two decades or longer establishes clearly that police delay in advising detained or accused persons of their rights to counsel is a serious breach. It is a point has been emphasized repeatedly in years of Supreme Court authority, yet it continues to be a concern that police have chosen in too many cases to treat as a mere suggestion.[^30] McGuffie unequivocally instructs that access to legal advice while detained is fundamental to individual liberty. Rover explains that access to counsel is the “lifeline” for detained individuals, providing exceptionally important psychological value and support to detained and accused person.

[111] However, accused or detained persons can benefit from that right only if police take seriously their obligation not only to caution and advise persons who are detained of the rights they have. Of equal if not greater importance, they must ensure those rights to talk to counsel of one’s choice if desired, or duty counsel at a minimum, are implemented promptly, not casually, and certainly as quickly as reasonable circumstances permit. It is not acceptable to treat the right as trivial, or one to be respected only when convenient.[^31] As such, under the second step of the Grant analysis, I find that the impact of the breaches on Mr. Simpson’s Charter protected values is significant, serious and not acceptable. This factor as well, as in the case of the seriousness of the Charter offending conduct, favours exclusion of the evidence.

[112] Finally, the third step in Grant acknowledges that our society always has a collective interest in ensuring that lawbreakers are tried and dealt with according to law. Our society generally expects that criminal allegations will be considered and adjudicated on their merits, so the third line of inquiry considers whether the truth-seeking goal of a trial is better served by the admissibility or the exclusion of the impugned evidence. Judges must consider not only the negative impact that may be caused to citizens’ confidence in the administration of justice by admitting the evidence, but also whether the administration of justice would fall into disrepute if the evidence were not to be admitted. The interest of the public in truth seeking remains a relevant consideration in this inquiry.

[113] The importance of the evidence to the prosecution’s case is a factor that must also be considered in this process. The exclusion of evidence may impact more negatively on the reputation of the administration of justice where the exclusion of the evidence “effectively guts the prosecution”[^32] The seriousness of the offence is also a valid consideration, because failure to effectively prosecute a serious charge, such as this one due to the exclusion of constitutionally tainted evidence, may have a more important long-term impact on the reputation of the criminal justice system.

[114] Nonetheless, the third test in Grant will seldom if ever tip the balance in favour of admissibility. In this particular case, however, Crown counsel acknowledged in detailed argument, that even if I were to exclude the statements, that will not bring the matter to an end. Often in other kinds of cases, such as drinking and driving, or narcotics cases, if the breathalyzer alcohol readings or the drugs are excluded owing to Charter breaches, that ends the prosecution. Here, however, Crown counsel has said that is not the case and that he still has a solid case to pursue, even if the statements are excluded. I appreciated Crown counsel’s candour and consideration in acknowledging that reality. The case and the evidence that remains will still require adjudication on the merits, just not an adjudication based on the utterances.

[115] In para. 86 of Grant, trial judges are tasked to weigh the various factors and balance them, but no overarching rule governs how the balance is to be struck and the goal is not mathematical precision. Nevertheless, I am mindful of the very practical guidance Doherty J.A. offers in R. v. McGuffie:[^33]

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence…. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility…. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant, at para. 140. (Emphasis added, citations omitted)

[116] On balance having considered the seriousness of the Charter offending conduct, and the impact of the Charter breaches on the Charter protected values of the accused, both of which strongly favour exclusion, but remembering that our society always has a collective interest in ensuring that lawbreakers are tried and dealt with according to law, I must nevertheless conclude that this evidence cannot be saved under s. 24(2). An additional consideration on that evidence, as noted below, is that its absence will not gut the Crown’s case. That evidence will be excluded.

(iv) Voluntariness of the Video Statement

[117] By the time Mr. Simpson was taken into a video surveillance interview room at 32 Division and provided his video statement, he had exercised his rights to counsel, having spoken to duty counsel on the telephone commencing at 0940. He did not provide any indication to D.C. Jodoin of a desire to contact any particular lawyer, and the officer did not ask him if there was any particular lawyer he wished to call, nor did the officer offer him a telephone book or list or other resource to assist in that inquiry. The fact is he spoke to duty counsel. The duration of the call is not known, However, Mr. Simpson seems to have been satisfied with the advice he received from Duty Counsel. When asked about the point, both D.C.’s Davies and Jodoin said Mr. Simpson showed no signs of concern or dissatisfaction with the advice he had received, at least as far as they could tell. Neither was there any visible sign I could detect from viewing the video recording that Mr. Simpson was unsatisfied with the advice he received. Instead, on numerous occasions he refers to duty counsel’s advice that he remain silent, and he does exactly that.

[118] The interview with the two officers commenced at 1023. The officers testified that their interview was “conversational”, that Mr. Simpson was generally cordial and co-operative as can be seen on the video. He did, on eight separate occasions say that he did not want to or was uncomfortable answering specific questions, based on the advice of duty counsel. The officers nevertheless pressed on, as they were entitled to, and Mr. Simpson did ultimately answer certain specific questions relating to the content of his storage devices and the fact that his proclivity and conduct had previously been unknown to his wife. Some of his “answers” are unhelpful and uncertain, being mere nods or shakes of the head, but on the other hand there are a number of questions asked in the second half of the interview that he answers clearly, directly, and without hesitation.

[119] Crown counsel asserts on this evidence that there was no breach of Mr. Simpson’s Charter rights in the video statement that was obtained, that there is no evidence of oppression in that interview room, and that the statements or specific answers Mr. Simpson gave in in the course of that interview, as the video and transcript reveal, were the product of an operating mind and admissible into evidence under the principles in Oickle.[^34] In his submission, none of the negative factors described in Oickle are present, and thus the statements, or at least some of them, should be ruled to be voluntary and admissible.

[120] There was no use of “police trickery” in that interview, although I do find, as discussed in the paragraphs that follow, that the extensive monologues of D.C. Davies were unnecessary, and gave a sense of oppressiveness to at least part of the interview, when looked at as a whole. Nevertheless, there is no evidence that there were any threats or promises made during the course of the interview or before, to induce Mr. Simpson to answer the questions as he did. I also accept and find that Mr. Simpson did have an operating mind at the time he gave these answers, seemingly voluntarily. He was pleasant, did not appear to be agitated, and was forthcoming in answering many of the officers’ questions.

[121] Regrettably, looked at in its entirety, the interview as a whole was not a “statement”, but rather a collection of disconnected brief utterances made seriatim by Mr. Simpson, interwoven with several lengthy monologues from the police officers, particularly D.C. Davies. Significant parts of the officer’s monologues were not only entirely unrelated to this case, but also in very poor taste, irrelevant, and given their composition and prejudicial content, raise doubts in my mind that the interview video and transcript could have been received in evidence by the jury, at least not without significant excision of prejudicial segments.

[122] The circumstances in this case in the interview room were not as bad as they appear to have been in R. v. Barges.[^35] There, even though Glithero R.S.J. would have excluded the accused’s statements based on voluntariness, he commented on the potential negative effects of such monologues at paras. 97-98:

97 More importantly, and whether I am correct on the voluntariness issue or not, I would exclude this statement on the basis that its probative value is slight and greatly outweighed by the prejudicial effect which would flow if the Crown was allowed to place before the jury pages and pages of police theorization, which is either un-responded to by the accused or where his attempts to respond are often thwarted.

98 The right to remain silent should be respected and not converted into a weapon to be used against an accused, which would be the result, if the jury were permitted to hear all these colourful and damning accusations by the police coupled with the choice of the accused to say nothing in response. The police theories have no probative value if un-adopted by the accused, but have prejudicial effect as constituting a theorization, which the officers would not be able to advance, directly, when giving their own evidence. [Emphasis added]

[123] The circumstances in every case are different. They are different here, but the case law properly points to the dangers of police monologues in interviews. They have the potential to impact on voluntariness, and may diminish the probative value of any words uttered by the accused.

[124] Of the 985 lines of enumerated text that comprise the transcript of Mr. Simpson’s “statement”, only 135 lines reflect Mr. Simpson speaking, or not speaking, but being recorded as having nodded his head, in either the affirmative or negative, or saying “Mmmm” or “uh-hun.” The remaining 850 lines of the transcript primarily record the voice of D.C. Davies, and to a lesser extent D.C. Jodoin, much of it in questions, but much of it also in lengthy sermon-like passages, a considerable portion of which contain distasteful and totally irrelevant references to another child pornography case.

[125] The video statement shows D.C. Davies, telling Mr. Simpson that in the course of interviewing child pornography suspects, he always likes to tell the story of Holly Jones and her killer, Michael Briere. That was a case that horrified Toronto in 2003, 17 years ago. Briere was a computer programmer who started to download and watch child pornography. Then, however, on one fateful day after viewing child pornography, he walked outside just as 10-year old Holly Jones passed in front of his home. He made the split-second decision that ended Holly’s life. He pulled her into his house, sexually abusedher, and then murdered her by strangulation within an hour of taking her hostage. The further horrors of the case need not be recounted here.

[126] There is no suggestion here, however, that Mr. Simpson has done or considered doing anything other than watching child pornography. That of course, if proven, is a serious crime and punishable as such, but stories relating to the rape and murder of a young girl seventeen years ago bear no relation to this case. Nonetheless, D.C. Davies confirmed that he regularly invoked that story as a tactic to “appeal to the morals” of the suspect, but obviously also in the plain if unspoken hope that the interviewee would seek to unburden their minds or souls to him.

[127] D.C. Jodoin had heard Davies use that tactic before in other interviews. He was uncomfortable with it, found it to be excessive and unnecessary, and said he would not use it. Despite the seeming disapproval of that technique, by a partner who had worked together with D.C. Davies on a number of cases, D.C. Jodoin acknowledged that he would not have considered suggesting to D.C. Davies that it was an inappropriate tactic.

[128] The presence of this aspect of the interview is troubling from both an institutional and lack of training perspective. It is a tool that risks causing intimidation and oppression and seems unlikely to cause any result other than to risk undermining the voluntariness of a statement by creating oppressive circumstances. I found the tactic entirely inappropriate, and admonish D.C. Davies for his continuing use of such offensive and potentially oppressive tactics.

[129] There were other examples, including D.C. Davies admonishing the accused that the officers knew that the only reason he wanted to possess child pornography was to masturbate to it, and D.C. Jodoin went so far as to ask Mr. Simpson whether he looks out his window and masturbates as he sees little girls in the park below him.

[130] The officers claimed these are important questions to assist them to categorize the level of risk that particular accused persons present to the community. I accept that proposition, and that it is important as part of their mandate to protect children from predators to be able to assess that issue at the commencement of an investigation. I could not understand, however, why that the technique was used in the context of this case because the officers actually acknowledged to Mr. Simpson that they did not need any more evidence – they already had all the evidence they needed.

[131] The police plainly told the accused that there was nothing he could say that would change anything, and in fact that they did not need him to say anything, because they already had sufficient evidence to convict him. Yet, they insist they will continue to press him for answers even after he tells them, on the basis of advice of counsel, that he will not answer any more questions. And they do continue to press until finally, Mr. Simpson tells them he is not answering any more questions, and that he is shutting up now. [^36] They tell him they will continue to question him, and they do.

[132] Defence counsel argued that at some particular point in time, the right to remain silent under s. 7 of the Charter must be given meaning. In Singh, above, Charron J. writes:

47 Mr. Singh takes particular issue with the leeway afforded to the police in questioning the detainee, even after he has retained counsel and has asserted his choice to remain silent. He submits that courts have erroneously interpreted the underlined passage above as permitting the police to ignore a detainee's expressed wish to remain silent and to use "legitimate means of persuasion". I say two things in response to this argument. First, the use of legitimate means of persuasion is indeed permitted under the present rule -- it was expressly endorsed by this Court in Hebert. This approach is part of the critical balance that must be maintained between individual and societal interests. Second, the law as it stands does not permit the police to ignore the detainee's freedom to choose whether to speak or not, as contended. Under both common law and Charter rules, police persistence in continuing the interview, despite repeated assertions by the detainee 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. As we shall see, the trial judge in this case was very much alive to the risk that the statement may be involuntary when a police officer engages in such conduct.[^37]

[133] In spite of Mr. Singh having told police at least 18 times that he would not answer questions, the majority found that his statement was admissible, although Fish J. does observe in dissent that the issue should not be determined as a mere counting exercise. In this case, Mr. Simpson invokes that claim eight times, but that is not the point. In Singh the statement was admissible because in spite of the complaints of the accused, the court found that his utterances and statements were the product of an un-oppressed, active, operating mind. That meets the test of voluntariness.

[134] In this case, the accused continued to volunteer answers to some questions, if not all, despite the likely advice of duty counsel to remain silent. Despite the problematic aspects of the officer monologues, I find that in the last portion of the interview, the accused and police are “engaged in conversation.” Unlike the first part of the interview, in the latter portions of the interview, having received legal advice, Mr. Simpson is co-operative and helpfully answers questions about the computer system, answers that plainly demonstrate it is his. There is no flavour of oppression at that time, there are no threats or promises being made, and Mr. Simpson plainly has an operating mind.

[135] Mr. Simpson was voluntarily engaging in a conversation that answered a number of the officer’s questions. The most relevant exchanges are the following:

Officer (Chris) I, I mostly saw your Shareaza, I saw the downloads, uh, in progress, um, and on the queue. Um, we’re gonna go through, we’re gonna have to go through all those images and what I’m gonna ask you right now - are we going to find any images of you sexually abusing children.

SIMPSON, Ryan: No.

Officer (Chris): No. Okay. Um, we also analyze chats, um, through various platforms. Is there gonna be any chats where you’re online talking to someone else known or unknown, talking about the sexual abuse of children.

SIMPSON, Ryan: No.[^38]

Officer (Chris): … Um, I’m concerned because there’s, like, just on your one (1) drive, uh, at just a glance there’s fourteen hundred plus (1,400+) files. Okay? Um, and then there was a NAS server, um, with - I think it had eighteen (18) terabyte storage capacity - there’s one (1) with eighteen (18) and there’s one (1) with eight (8) I think.

SIMPSON, Ryan: There’s a black one and a white one.[^39]

Officer (Chris): Uh, there’s a bag of, like, old hard drives, like, there was a S-, couple, uh, Seagates and couple Western Digitals. Are we gonna find material on there?

SIMPSON, Ryan: No.

Officer (Chris): No? Um, and then all the thumb drives, are there gonna be…

SIMPSON, Ryan: Nothing on them.

Officer (Chris): Nothing on it, just on the, the desktop and the…

SIMPSON, Ryan: And possibly the one NES.

Officer (Chris): The white one?

SIMPSON, Ryan: Yeah.

Officer (Chris): Yeah. Black and white. D-, which one’s eight (8)? The black or the white?

SIMPSON, Ryan: The white.

Officer (Chris): The white? Okay. So it’s a considerable volume of material. Okay?[^40]

Officer (Earl): Okay. Um, what other stuff that you have is password protected? Like, in your computer room let’s just say.

SIMPSON, Ryan: Other than the Windows itself on my machine what else is there? I don’t think you’re gonna find passwords on, uh…

Officer (Chris): Like, do you run any VMs or virtual machines or anything like that?

SIMPSON, Ryan: On the, uh, the black NAS I do have a virtual machine set up but that was just for - I was doing a little developing.

Officer (Chris): Okay.

SIMPSON, Ryan: Uh, testing two (2) different, uh, I was doing something for, uh, Nodes.js which allows you to have simultaneous communication like change a colour on my, on my phone and instantly changes so I do a virtual machine setup on, uh, on the black NAS.

Officer (Chris): For testing and stuff?

SIMPSON, Ryan: Yeah. But it’s just literally a web server for, uh, P2P developing, like it’s - you’ll probably find some changing colours.[^41]

[136] I have explained my reasons for not accepting the Crown’s position that D.C. Davies did nothing wrong in reciting those monologues. I do agree, however, that he was entitled to attempt to appeal to Mr. Simpson's morals, and that in and of itself would have been a laudatory goal, but the officers’ claimed moral intentions in the hope the accused would unburden himself do not justify his use of those offensive, and irrelevant dialogues.

[137] That said, it is plain to me, and I also accept that the evidence demonstrates that Mr. Simpson was “actively engaged” in the conversation. There were no promises, no threats, and no inducements offered. Mr. Simpson’s will was not overborne.

[138] Oickle shows that an assessment of the voluntariness of a statement is “highly fact specific.” Voluntariness includes the right to remain silent, involving the exercise of free will in choosing whether to speak to the police or to remain silent, but in determining voluntariness, a contextual analysis must be used that considers all of the relevant factors.

[139] Here there were no threats or promises made to induce Mr. Simpson to speak, nor was there other police trickery. While I have strongly criticized the police use of the monologue technique as it played out in this case, I do not find that conduct tainted the interview as a whole, when balanced and considered contextually, having regard to the apparent willingness of the accused to provide information in the course of the conversations noted above. That information is more than sufficient to establish that the running owner of the computer in the office/computer room was Mr. Simpson.[^42]

[140] I find that the utterances of the accused recorded above were the product of an operating mind, voluntary, and admissible. While the monologues were unnecessary and could and may have caused an air of oppression, that is only one and not the only consideration. Looked at fairly in the context of the environment displayed in the video, I find that there is no appearance that in answering the particular questions as he did, Mr. Simpson was not conversing with the police officers voluntarily. I find on this basis that they are admissible.

[141] However, there is another consideration. That is whether the statements ought to be found to be inadmissible by reason of the application of the derived confessions rule: see the leading decisions of the Supreme Court in R. v. T. (S.G.)[^43], and our Court of Appeal’s decision in R. v. D. (M.), where Watt J.A. sets out the test at paras. 54 and 57:

54 To determine whether a subsequent statement will be excluded under the derived confessions rule because of the taint left by its involuntary and thus inadmissible predecessor, a trial judge must examine all the relevant circumstances to determine the degree of the connection between the two statements: T. (E.), at p. 526. The Supreme Court of Canada has set out some of the relevant circumstances or factors to consider in determining the degree of connection between the two statements, and thus the influence of the antecedent taint: see T. (E.), at p. 526; Hobbins, at p. 558; and R. c. G. (B.), 1999 690 (SCC), [1999] 2 S.C.R. 475 (S.C.C.), at para. 21. These include but are not limited to:

• the time span between the statements;

• advertence to the earlier statement during questioning in the subsequent interview;

• discovery of additional information after completion of the first statement;

• the presence of the same police officers during both interviews; and

• other similarities between the two sets of circumstances.

57 Despite its origins as a common law rule where lack of voluntariness is the contaminating factor, the derived confessions rule is of more general application. The contaminating factor may be constitutional infringement, say a breach of s. 10(b) of the Charter. There, the subsequent statement is tainted if the breach and impugned statement can be said to be part of the same transaction or course of conduct. The admissibility analysis in these cases is performed under s. 24(2) of the Charter: R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235(S.C.C.), at para. 21; Simon, at para. 69; and Plaha, at paras. 42-45.

[142] I find that the otherwise admissible statements that were made by Mr. Simpson in the course of the second interview are Charter tainted by the first statement under the foregoing principles because they are a continuation of each other.

[143] In R. v. S. (S.)[^44], the court states:

69 Ultimately, the sufficiency of the connection between the Charter breach and the subsequent obtaining of the evidence for the purposes of engaging s. 24(2) can only be determined by a case-specific factual inquiry: see R. v. Plaha , supra, para. 47. As Fish J. noted in R. v. Wittwer , supra, at para. 3, the police can, where an interrogation is tainted by a Charter breach, make a “permissible fresh start” by clearly severing their subsequent interrogation from the effect of the earlier Charter breach.

[144] In this case, I am unable to find that there was a “fresh start” to the video statement given in the interview at 32 Division. I reach that conclusion on the basis of the officers’ and Mr. Simpson’s numerous references back to the discussion with, and caution from D.C. Davies, the entire recounting of everything that had transpired from the moment the police commenced the search at the Simpson residence, and the presence of the same two officers for the interview. Those factors show a connection and continuation between the Charter breaching events that took place there, at the Simpson residence, and the subsequent utterances made during the course of the video interview at 32 Division. I find that they are all part of the same transaction or series of events.

[145] Unlike the initial utterances, however, I find that the contents of the interview statement as noted above must survive s. 24(2) analysis in this case. While the continuing tainting breach is serious, as discussed aboveI can see no meaningful impact on the Charter protected values of the accused, because regardless of his s. 7 right to silence, I have found that Mr. Simpson voluntarily provided the answers he did during the interview, answers that make clear that he is the person who understands and has knowing control over the contents of the computer.

[146] In Grant, like here, the Charter violation was breach of Mr. Grant's s. 10(b) right to counsel. However, in that case, the investigating officer, by his own admission, was probing for answers that would give him grounds for search or arrest. Far from being spontaneous utterances, the incriminating statements in Grant were prompted directly by the pointed police questioning. The accused needed legal advice, but it was not provided. He was not told he could consult counsel. More importantly, the investigating officers testified that they would not have searched or arrested Mr. Grant but for his self-incriminatory statements.

[147] In contrast, the police already had almost all of the evidence they needed at the time of the video statement. Indeed, they specifically told Mr. Simpson that they did not need any more information from him, because they had the physical evidence, over 1,500 separate pieces of child pornography. In response, at the end of the matter, Mr. Simpson voluntarily provided them with sufficient information to show that he had knowing control over the computer and its contents.

[148] The third and final analytical step requires me to consider the effect of admitting Mr. Simpson’s identifying statements from the interview on the public interest in having a case adjudicated on its merits. The admission of the above portions of the video statement statement may not be a prerequisite to the Crown proving the offences in this case, and as explained below, the Crown asserts here that he believes a conviction will result from the hard evidence and reasonable inferences regardless whether the statements are admissible.

[149] The enormous quantity of pornographic content on the computer hard drives is highly reliable evidence. The statements of Mr. Simpson associate that evidence to him. Further, the seriousness of these offences and society’s abhorrence of criminal exploitation of children weighs in favour of admitting the statements along with the physical evidence, so that the matter may be decided on its merits

[150] Here, the alleged offences are serious and disturbing for the risk they cause to children being subjected to sexual abuse in order to provide gratification to the individuals who possess, access and make child pornography available to others. The third step in Grant requires that I consider and balance society’s interest in the adjudication of cases on their merits against the seriousness of the tainting breach and its impact on Mr. Simpson’s Charter protected interests.

[151] Returning to Doherty J.A.’s formulation in McGuffie[^45], if both of the first two inquiries under Grant provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence.[^46] In my view, that is the result here relative to the above noted content of the statement which I find to be admissible..

(v) Has the Crown proven the charges beyond a reasonable doubt?

[152] The effect of my rulings is to exclude the evidence of the utterances made by Mr. Simpson at his home, but to admit the answers noted above that Mr. Simpson gave to the officers in response to specific questions referenced on the interview. I have found no sign of Mr. Simpson being oppressed as he gave both exculpatory and inculpatory answers. Further, as noted, I have concluded on a s. 24(2) Grant analysis relative to the second set of statements, that unlike the first utterances, they ought to be admitted.

[153] Even if that had not been the case, however, and that evidence had been excluded Crown counsel argued there was still more than enough evidence to ground the charges and convict Mr. Simpson. As Crown counsel fairly and candidly put it:

And this again is an argument that doesn't favour the Crown, but what I'm saying is that even without these statements, the Crown has evidence of possession of child pornography on a computer where Mr. Simpson has possession, access, and usage.

[154] Mr. Simpson is charged with possession of child pornography (x 2), accessing child pornography (x 1), and making child pornography available (x 2), contrary to s. 163.1(4), and 173.1(4), s. 163.1(4.1) and (4.2), and s. 163.1(3), respectively of the Code. The nature of the charges requires the court to first consider whether the material in question constituted child pornography, and second, whether the evidence establishes that the material was in the possession of, accessed by, or made available by the accused.

[155] At the outset, I note the extensive agreed statement of facts concluded between counsel and entered as Exhibit 1 on the joint voir dire and trial. Amongst the many facts agreed are the following: (i) the dates of the period during which the offences occurred, (ii) that the photos taken at the accused’s residence at the time of the search are admitted, (iii) that the search warrant was issued in conformity with s. 8 of the Charter, (iv) continuity of the items seized, (v) that the video statement and transcript and the arrest audio statement and transcript are complete and accurate, (vi) that the images identified as child pornography meet the statutory definition of that term in the Code, and (vii) on the definitions and meaning of particular terms relating to Internet Protocols, the Shareaz peer to peer software and, abbreviation usages relating to child pornography.

[156] Counsel also agreed on the value and reliability of the identifying characteristics of computer identifications, a level of accuracy that I was advised exceeds the reliability of DNA analysis by five (5) decimal places!

[157] Two further important admissions in this case relate to the Crown’s forensic computer expert, and to the usage of the computers seized at the Simpson residence. First, it was agreed that D.C. Sushil Saini is a properly qualified expert in the area of forensic examination of computers and data recovery including, but not limited to, extraction, analyses, and allocation; as well as the employment of forensic software for these purposes. Finally the parties agree that both Mr. Ryan Simpson and Mrs. Nora Simpson had their personal information on the desktop seized and examined by D.C. Saini of the Toronto Police Service.

[158] The enormous number of still images and video images individually viewed and identified by D.C. Davies are all conceded to be child pornography as defined in the Code.[^47]

[159] The question is whether the remaining evidence, combined with the accused’s statements or utterances that I have ruled to be admissible, permits Crown counsel to establish the remaining elements of the offences, starting with knowing possession and control, beyond a reasonable doubt. The evidence does show that both Mr. Simpson and Mrs. Simpson had access to the computer. There is information pertaining to both of them on that computer. However, relative to the elements of the offences and taking account of Mr. Simpson’s answers to the questions referred to above, the Crown’s final submission is that the only reasonable inference capable of being drawn from that remaining direct and circumstantial evidence, establishes the guilt of the accused beyond a reasonable doubt.

[160] As explained in the reasons that follow, I agree with the Crown and find that the only reasonable inference in this case, having regard to the constellation of direct and circumstantial evidence, is that the guilt of the accused is established for all offences beyond a reasonable doubt.

[161] Section 4(3)(a) of the Criminal Code defines “possession” in the following terms:

For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; ....

[162] It will suffice for present purposes to note that to establish possession, the prosecution must prove that the accused had (i) physical contact with, or manual control over the material in question, (ii) knowledge of the material’s nature or character, and (iii) a measure of control over the material, whether exercised or not.[^48]

[163] There are three specific charges here: possession of child pornography, accessing child pornography, and making the video of child pornography available.

[164] On the charges of possession, R. v. Midwinter[^49] is the controlling decision. At paras. 12-14, the Court of Appeal instructs that

12 [t]o establish personal possession for the purposes of s. 4(3) of the Criminal Code, the Crown must establish that the accused had both control over and knowledge of the thing: R. v. Morelli, 2010 SCC 8 (S.C.C.), at para. 15. Control refers to power or authority over the thing, whether exercised or not: R. v. Chalk, 2007 ONCA 815, 88 O.R. (3d) 448 (Ont. C.A.), at para. 19.

13 In the context of data contained in an electronic file, in order to commit the offence of possession of child pornography, one must knowingly acquire the underlying data files and store them in a place under one's control: Morelli, at para. 66.

14 The requirement of knowledge encompasses two elements: the accused must be aware that he had physical custody of the thing in question and must be aware of what the thing is: Morelli, at para. 16. Possession requires knowledge of the criminal character of the item in issue: Chalk, at para. 18. Where the material in question reposes in an electronic file, the court may draw inferences about an accused's knowledge from circumstantial indicators such as ownership, access to, and usage of the computers on which the files are stored: R. v. Braudy, [2009] O.J. No. 347 (Ont. S.C.J.), at para. 52.

[165] Control means power or authority over the thing, whether exercised or not, but a finding of guilt requires the accused to knowingly acquire the underlying data files and store them in a place under his or her control. He must be aware that he had physical control of those files and he must be aware of what they comprise.[^50] He must also know that the files he possesses are criminal in character.[^51] Chalk also confirms, however, that I am permitted to draw inferences about the accused's knowledge of the circumstantial evidence that the electronic files present, such as ownership, access, and usage of the computer files on which these files were stored.[^52]

[166] The second charge under s. 163.1(3) is to have made child pornography available. This offence arises in the context of file sharing programs, such as the Shareaza peer-to-peer software that plainly was in use here on the Simpson’s computer. It operates by permitting a person to download a file to a shared folder, with or without the knowledge of the folder's owner. The actus reus of making child pornography available is made out, actively or passively, by permitting others to access child pornography through a file sharing program, like Shareaza. In R. v. Spencer[^53], the Supreme Court describes the elements of the mens rea of the offence para. 83

In the context of a file-sharing program, the mens rea element of making child pornography available under s. 163.1(3) requires proof of the intent to make computer files containing child pornography available to others using that program, or mere actual knowledge if a file sharing program makes files available to others.

[167] Finally, the defendant is charged with two counts of accessing child pornography under s. 163.1(4.1) and (4.2). The language of the section states that:

A person accesses child pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself.

[168] Simply viewing images online constitutes this separate crime of accessing child pornography. A person accesses child pornography by knowingly causing the child pornography to be viewed by or transmitted to him or herself.[^54] In Morelli, Fish J. distinguishes the two crimes of possession and accessing:

26 Parliament's purpose in creating the offence of accessing child pornography, as explained by the then Minister of Justice, was to "capture those who intentionally view child pornography on the [Inter]net but where the legal notion of possession may be problematic" (Hon. Anne McLellan, House of Commons Debates, vol. 137, 1st Sess., 37th Parl., May 3, 2001, at p. 3581).

27 What made a charge of possession "problematic", of course, is that possessing a digital file and viewing it are discrete operations — one could be criminalized without also criminalizing the other. In the case of child pornography, Parliament has now criminalized both. But viewing and possession should nevertheless be kept conceptually separate, lest the criminal law be left without the analytical tools necessary to distinguish between storing the underlying data file and merely viewing the representation that is produced when that data, residing elsewhere, is decoded. [Emphasis added]

[169] In this case, the admissible evidence is both direct and circumstantial. The later utterances of the accused are admissible and available to assist in the fact-finding process.

[170] The physical presence of an enormous quantity of still image and videos of child pornography found on the sophisticated homemade computer system located in the small and messy computer office within the Simpson residence, combined with the presence in that room and on those computers of information and materials connected with both Mr. Simpson and Mrs. Simpson, shows connection by both, but it does not itself permit guilt to be determined as between the two of them.

[171] The connection of both of them to the computer, and the process engaged in during the cross-examination on D.C. Saini of identifying items and information on the computer relating to both of them, led counsel to agree to a stipulation: that both Mr. Ryan Simpson and Mrs. Nora Simpson had their personal information on the desktop seized and examined by D.C. Saini of the Toronto Police Service. That is the same computer on which police found the Shareaza peer-to-peer software, as well as the two hard drives within the impugned computer hard drives that contained 996 unique still images and 852 unique videos, all of which comprised child pornography.

[172] The only witnesses in this case on the trial proper, were the police officers. Mr. Simpson did testify, but only with reference to the voluntariness of utterances he made so whether the Crown has established Mr. Simpson’s guilt of these charges requires satisfaction of the third step of R. v. W. (D.)[^55] This is the classic configuration of the required level of proof: Has Crown counsel proven the guilt of the accused beyond a reasonable doubt on the basis of the entire body of admissible evidence that I do accept, both direct and circumstantial?

[173] The evidence that the Crown relies upon to prove the offences charged in this case is predominantly circumstantial in nature, requiring the drawing of inferences, to conclude the elements of the offence are satisfied beyond a reasonable doubt, and that the defendant is guilty as charged. In such circumstances, a finding of guilt can only be made where it is the only reasonable inference that can be drawn from the circumstantial evidence, combined with the admissible direct evidence, taken as a whole. If more than one inference can reasonably be drawn, one that favours acquittal and one that favours conviction, then the charges will not be capable of being proven beyond a reasonable doubt.

[174] R. v. Villaroman[^56] is the leading recent decision on the use of inferential reasoning in the context of charges of possessing child pornography. In that case, a technician found images and digital movies/video clips containing child pornography in an anomalous music folder on the accused’s computer while making repairs and he notified the police. The accused was convicted of possessing child pornography, contrary to s. 163.1(4) of the Criminal Code. The Alberta Court of Appeal allowed the appeal by the accused, finding that a properly-instructed jury could not reasonably and judicially have found that the accused put child pornography on the computer or knew it was there, based on what it characterized as the skimpy, available circumstantial evidence.

[175] The Supreme Court allowed the Crown’s appeal and reinstated the trial decision as reasonable. The trial judge did not fail to properly consider reasonable inferences inconsistent with guilt that could have arisen from lack of evidence, stated the proper standard of proof in his reasons, and applied the law properly, putting the burden of proof beyond a reasonable doubt solely on the Crown. Specifically in the context of child pornography, Cromwell J. found that it was reasonable for the trial judge

(i) to find that the respondent knew that he had physical possession of the pornography that was in his computer’s memory;

(ii) to find that a user of the computer knowingly downloaded pornography, since the file-sharing software installed on the computer could not download files or other material without the user taking some action to download the file;

(iii) to find that a user of the computer had viewed some of the downloaded material and that the files had not been automatically opened; and

(iv) that the accused was knowingly in possession of the child pornography that had been saved on his computer.

Cromwell J. noted that the trial judge considered and rejected the accused’s submission that the evidence was not sufficient to establish knowledge of the nature of the material, and did not merely consider the fact that the accused owned the computer. He did not ignore hypothetical alternative explanations advanced by the accused, but rather found that they were speculative.

[176] Crown counsel here argues that applying the rule in Hodge’s case or Villaroman requires that guilt must be the only reasonable inference, but not necessarily the only “possible inference.” Possible inferences may or may not be reasonable. They are different from speculation, but an inference can only be a possible inference if there is evidence or an absence of evidence that may support it. The possibility of an inference does not mean it is the only reasonable inference. That is the test.

[177] Crown counsel’s position on the evidence was straightforward. First, he notes the testimony of the officers that the apartment itself was maintained in immaculately clean condition, whereas the computer room was very unkempt and messy. He says that is evidence that points to Mr. Simpson, rather than his wife, as the person who uses the computer equipment in the office. This was a weak argument and as defence counsel noted, there was no evidence of who did the housekeeping, of who actually kept the house in immaculate fashion, or which of them kept the computer room in a messy fashion. Certainly on its own, it could not be reasonable to attribute guilt as a sole reasonable inference of inconsistent housekeeping.

[178] Much more persuasive, in my view, was the Crown’s contention that there was strong evidence that nobody else could have taken remote control of the desktop computer than the accused, because the Shareaza software had the setting for remote access disabled, but that does still not point specifically to one or the other of them.

[179] Even more persuasive in my view was counsel’s argument referring to R. v. Braudy.[^57] In that case, the defendant had possession of the computers and the evidence established that the defendant interacted with the computers. There was evidence, as here, that the accused’s spouse used the computer, but unlike in this case, that evidence came from the testimony of the accused’s spouse herself. She testified as to her computer usage. There was no testimony here of the relative usage of the computer by either of the Simpsons. Nevertheless, what the evidence did show was there was an enormous amount of usage, on a very sophisticated system setup, both for purposes of storage of an enormous amount of child pornography over a continuing period of months, as well as other more mundane purposes, including the storage of regular screen movies, and quantities of adult pornography,

[180] The evidence in Braudy showed, as it did in this case based upon the testimony of D.C. Saini, that the user of the computer in that case was a sophisticated user. He had considerable computer experience and it would have been unreasonable for the Court to believe that the presence of child pornography would or could have gone unnoticed. Further, the court concluded that the enormous number of images could not be squared with a passive unknowing download of extensive child pornography images, or with the infiltration and infecting of the computer with child pornography be some unknown computer hacking assailant.

[181] The same is true here, with over 1,500 still images and videos of child pornography capable of being shared through the Shareza peer-to-peer software, and the Lace Report indicating that the child pornography was present on the Simpson computer for at least four months, from May until October 2018. I find it is not a credible suggestion that such an enormous quantity of child pornography could have been downloaded or accessed by that computer, located in the office of that apartment, without the active knowledge of at least one if not both of the occupants.

[182] Further, on October 3rd, 2018, the date of the search warrant execution, there was category 1 child pornography on that computer, downloading as the police commenced their search and seizure in the early morning hours. As D.C. Saini said, the user of that specific computer did not need to actively be present on the Shareaza site, or actively using it, for somebody else to be uploading files from him or her, comprising further evidence of sophisticated personal involvement.

[183] Importantly, it emerged in D.C. Saini’s evidence that the Shareaza software does not automatically choose where downloads will be stored on a hard drive. The user must manually create a file path in order to control the data. The user has full control and makes those choices as a user, choosing whether to house files and images or videos in a folder called “A” or “B” or “C”, or whatever name the user wants to give to the particular storage folder. His forensic evidence made clear that a specific “route” or “file pathway” had been adopted by the user of the Simpson computer. It was not mere happenstance. A person with sophisticated computer understanding and skills chose how to store those images, buried in various layers of firewall.

[184] Crown counsel’s position is that proof of the elements of the offence on the evidence in a case involving peer‑to‑peer software, like this case, is quite straightforward. The reason is simple. He argues persuasively that there can be no misapprehension in relation to what that software entails and how it operates, or for what purposes it is used.

[185] The evidence provided by the Lace Report, a forensic report, shows over four months of usage on the Shareaza peer-to-peer software, uploading and downloading child pornography to and from the Simpson computer. As such, I accept and find that there is no reasonable likelihood that this quantum of child pornography could ever have gone unnoticed by either or both of the Simpson’s, given how many child pornography files there were located on that computer, and that it is unreasonable to suggest the contrary.

[186] The material found on the Simpson’s computer meets the Code definition of child pornography. The evidence shows that it was present in a place where the accused, and possibly his spouse, had knowing control of that material. The Crown asserts that establishes the possession offences as against the accused. The difference between possession and accessing is the action, directly or indirectly through the use of software that results in a going out to obtain child pornography. Possession is simply the holding of the illegal content. Accessing requires action, either at the behest of the user, or simply as a function of the actions that the program allows. Crown counsel argues all of these tests are met to the criminal standard.

[187] The defence problem in its efforts to defer blame from Mr. Simpson, and raise the potential prospect of blame to Mrs. Simpson, or some other unknown person, as the tool to exculpate the accused, is that it is selective in the evidence that can inform the process of reaching reasonable inferences, and itself based on entirely impermissible speculation.

[188] The defence has no response to the reality that the offence of making child pornography available arises through the initial toggling of a permission switch on the Shareaza peer-to-peer software. The forensic evidence showed that switch had been activated on the version of Shareaza that was found on the Simpson’s computer. That is a version of the software located on the Simpson computer that allows others to go into the accused user’s computer spaces through Shareaza, to view what may be on this particular site, the site of the user.

[189] In this case, that extensive library of pornographic images and videos of children categorized by police as category 1 child pornography, shows this material did not come to exist on the Simpson computer by accident. It came to exist there through the knowledge, ownership, access, and usage of the computer, by one or both users. The case law in respect of offences like these that occur in an electronic milieu shows that control with imputed knowledge over a file begins as soon as the file has begun downloading. The process need not even be complete, because it is the activation, actively or passively by using the software, that establishes the mental element of the offence.

[190] There is further evidence that shows that the computer software and layers of firewall set up on the Simpson computer could not have been put in place by anyone but a very sophisticated user. In order for a user to even download and use the software, from the beginning, at the front end, the user must enter into an agreement that by downloading and using the Shareaza program, they acknowledge that they will be using that software to download imagery. As well, however, by the very act of downloading the software, the user acknowledges that they consent to that same peer-to-peer software, being enabled, and permitted to be used by third parties to upload images from them, or download images to them.

[191] Defence counsel reviewed and commented extensively on what he regarded as deficiencies in the evidence, which he argued were incapable on their own of permitting a reasonable inference to be drawn permitting a finding of guilt beyond a reasonable doubt. He claims that there was no direct or circumstantial evidence that Mr. Simpson was the only user of the computer. He rejects that it is a rational reason that one would believe that it was Mr. Simpson's stuff in the computer room, merely because the house was “immaculate”, but the computer room was messy." I agree with the absence of persuasive value of that low level inference, but there are more connecting factors.

[192] There was evidence that established that Mrs. Simpson was the subscriber and Mr. Simpson was a user of the account, and evidence that might have suggested some presence of both of them in the computer room. However, I find that evidence to be slight, a mere product of police having found a few envelopes and letters in that room, some addressed to Mr. Simpson and at least one addressed to Mrs. Simpson. That, to my mind, does not suggest equal usage by the two spouses.

[193] The alternative explanation is either one of them used that room, but dealt there on that computer with matters pertaining to both of them. They both appear to have had access to the computer room, not just one person. There was no evidence that it was locked or available only to Mr. Simpson and not Mrs. Simpson. I find, however, that proves nothing, nor does it disprove potential inferences.

[194] Defence counsel argues there is no specific evidence that required that only Mr. Simpson operated the system, or that established that Mrs. Simpson was incapable of operating the computers in that room. While he did acknowledge the prosecution’s claim that Mr. Simpson is a sophisticated computer user and that he has sophisticated computer expertise, as he obviously had to, he continued to insist there was no evidence that supports that the only reasonable inference is the guilt of Mr. Simpson. He argued there was no direct evidence before the court that Mr. Simpson was a sophisticated computer operator and Mrs. Simpson was not, or vice-versa.

[195] In my view, in the absence of the statements ruled admissible from the video interview, there might have been considerable force to this submission. The hard evidence and the circumstantial evidence might not have permitted guilt to be attributed to one or the other of the two Simpson’s, were it not for the inculpatory impact of Mr. Simpson’s statements that I have ruled to be admissible.

[196] D.C. Saini acknowledged from his review that he could not say who was the operator of the computer as between Mr. and Mrs. Simpson. There was no specific signature. But it is critically important here that what he did say, emphatically, was that whoever was operating the Simpson computer, triplicate monitor screens, hard drives and the other sophisticated hardware and software in that room, hooked up in a very sophisticated manner that he had never seen before, and that he photographed in case he would ever see it again, had a very high level of computer expertise and advanced technical skill. He was able to give this evidence merely because of what was plainly observable on the Simpson’s computer.

[197] Defence counsel contends that there was no admissible evidence that indicated that Mr. Simpson had a specific expertise “beyond what's normal”, as he put it, such that any observation that he has this specific expertise cannot lead to the “inescapable inference that must be present” before a finding of guilt can be made. He insisted that between the two of them and beyond, there was no evidence but only mere speculation of whomever else would ever have had access to their apartment, and potentially tampered with the Simpson computer. Further, he contends that there was no evidence as to who did or who did not have computer expertise, and thus no foundation to conclude reasonably that it was Mr. Simpson, and not Nora Simpson, who possessed the expertise that needed to be present in order to attribute guilt to Mr. Simpson, rather than Mrs. Simpson who was not charged. I reject these arguments.

[198] This was a judge alone trial, involving a blended voir dire relative to whether the accused’s statements were admissible as voluntary, and the trial itself on the child pornography charges that was conducted at the same time as a blended proceeding. Having considered the matter long and hard, however, if I had not concluded and ruled that the recorded utterances of Mr. Simpson that took place in the course of the second interview at 32 Division were admissible, then I could well have been forced to conclude that I could not determine that the only reasonable inference was the guilt of Mr. Simpson, contrary to the submissions of Crown counsel.

[199] I feel obliged to observe that trial and voir dire circumstances like these necessarily put any trial alone judge in a very difficult analytical position. I have grappled for some weeks with the discipline of the required logic. At the end of the day, I have reached the conclusions I have, and I am satisfied of those conclusions beyond a reasonable doubt. I find that on the whole of the evidence that I have accepted and found to be admissible, the charges are proven beyond a reasonable doubt.

Final disposition

[200] To summarize, on the combined voir dire and trial I have reached the following determinations:

(i) The defendant and his wife were detained within the meaning of s. 9 of the Charter from the beginning of the execution of the warrant, such that a caution should have been given to Mr. and Mrs. Simpson at that time, and they were entitled to be advised at that time of their rights to retain and instruct counsel of their choice or duty counsel without delay;

(ii) The initial utterances of the accused are neither voluntary nor admissible under common law rules;

(iii) All utterances obtained by police before the implementation of Mr. Simpson’s rights to counsel at 0940 on October 3, 2018 were obtained in breach of Mr. Simpson’s rights under s. 10 of the Charter;

(iv) Even though our society always has a collective interest in ensuring that lawbreakers are tried and dealt with according to law, the balancing analysis mandated by Grant, strongly favours exclusion of the original utterances made at the Simpson apartment. I have also found that evidence cannot be saved under s. 24(2) of the Charter and is therefore inadmissible and excluded;

(v) The manner in which the interview was conducted had offensive elements, but some of its content, as I have identified, is more probative than prejudicial. It plainly identifies and associates the computer and content to Mr. Simpson alone. It was a series of voluntary utterances in the course of conversation with the police officers that shows the presence of an operating mind and voluntariness. Further, I have found that with respect to those statements or utterances, an analysis under s. 24(2) favours admissibility of this evidence;

(vi) On the whole of the admissible evidence, both direct and circumstantial, including the confirmatory utterances of the accused demonstrating his knowledge and control of the content of the computer, I find the only reasonable inference is the guilt of this accused on each of the five charges he faces.

[201] It necessarily follows that a conviction will be entered on all counts.

Michael G. Quigley J.

Michael G. Quigley J.

Released: December 17, 2020

COURT FILE NO.: CR-19-400000688-0000

DATE: 20201217

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and –

RYAN SIMPSON

Applicant

REASONS FOR JUDGMENT

Michael G. Quigley J.

Released: December 17, 2020

[^1]: Canadian Charter of Rights and Freedoms, s 8, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[^2]: R v Oickle, 2000 SCC 38, [2000] S.C.J. No 38 (S.C.C.).

[^3]: Ibid., at paras. 30, 47-48, 58, 65, 68 and 71; R. v. Singh, 2007 SCC 48, [2007] S.C.J. No. 48 at para 53.

[^4]: R. v. Singh, supra at para 31-33.

[^6]: R v. Singh, supra at para 33.

[^7]: See for example, R. v Smyth, [2006] O.J. No 5527 (Ont. Sup. Ct.), and R. v Dell’Unto, [2004] O.J. No 2208 (O.C.J.).

[^8]: 2002 45114 (ON CA), [2002] O.J. No. 4178 (C.A.) at para. 20.

[^9]: 2010 SCC 20, [2010] 1 S.C.R. 688 (S.C.C.) at para. 29.

[^10]: R. v. D.(M.), 2012 ONCA 841: Watt J.A. succinctly describes the nature and extent of the Derived Confessions Rule at paras. 53-59

[^11]: 2009 CarswellOnt 6324 (S.C.J.), 199 C.R.R. (2d) 171, 85 W.C.B. (2d) 358.

[^12]: 1985 29 (SCC), [1985] 1 S.C.R. 613, [1985] S.C.J. No. 30.

[^14]: R. v. Pomeroy, (2008), 2008 ONCA 521, 91 O.R. (3d) 261 (C.A.), at para. 30.

[^15]: Edwards, above at para. 288.

[^16]: 2019 SCC 34 at para 26.

[^17]: 2009 SCC 32, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 245 C.C.C. (3d) 1.

[^18]: R. v. Ferris (1994), 1994 ABCA 20, 149 A.R. 1 (C.A.).

[^19]: (2001), 2001 5637 (ON CA), 54 O.R. (3d) 695 (C.A.).

[^20]: Colpitts v. R. (1996), 1982 3836 (ON CA), 1 C.C.C. 146 at paras. 22-25.

[^21]: See R. v. Moore-McFarlane (2001), 2001 6363 (ON CA), 160 C.C.C. (3d) 493 (Ont. C.A.); R. v. Ahmed (2002), 2002 695 (ON CA), 170 C.C.C. (3d) 27 (Ont. C.A.) at paras. 15-20; R. v. Rajab (2004), 2004 93325 (ON CJ), 193 C.C.C. (3d) 436 (CJ) at para. 29.

[^22]: See R. v. Belle, 2010 ONSC 1618, at paras. 45-46,

[^23]: 2009 SCC 33, [2009] SCJ No. 33 at para. 41.

[^24]: R. v. H.(T.G.), 2014 ONCA 460 at paras. 27-33.

[^25]: R. v. Cotter, 1991 1068 (BC CA), [1991] BCJ No. 42, 62 C.C.C. (3d) 423 (BCCA), R. v. Leitch, 2016 ONSC 6117, [2016] O.J. No. 5470, at paras. 63-66.

[^26]: 2018 ONCA 745, at paras. 25-27.

[^27]: 2019 ONSC 7111, at paras. 23 and 28.

[^28]: 2016 ONSC 5581 at para 83.

[^29]: See R. v. Pino, 2016 ONCA 389 at para 101.

[^30]: R. v. McGuffie, 2016 ONCA 33 at paras. 2 and 37-42, R. v. Rover, above, and R. v. Muhamud, 2019 SKQB 115 at paras. 57-59, aff’d 2020 SKCA 21.

[^31]: R. v. Kowalchuk, 2018 ONCJ 688, at paras. 18-22.

[^32]: Grant, supra, at para. 83.

[^33]: 2016 ONCA 365, 336 C.C.C. (3d) 486, at para. 63.

[^34]: Oickle, above, at paras. 30, 47-48, 58, 65, 68 and 71; R. v. Singh, 2007 SCC 48, [2007] S.C.J. No. 48 at para 53.

[^35]: 2005 47766 (ON SC), 2005 O.J. No. 5595 (S.C.J.). See also R. v. Keats, 2014 NSPC 108 at para. 55, R. v. White, 2019 O.J. No. 762 (S.C.J. at paras. 48-52.

[^36]: Transcript of Ryan Simpson Interview, lines 685-714. Examples of other snarky or seemingly insulting dialogues can be found in that transcript at lines 251-258, 285-295, 327-337, 582-606, and 642-679

[^37]: Singh, above, at para. 47.

[^38]: Transcript, lines 442-459.

[^39]: Transcript, lines 620-628.

[^40]: Transcript, lines 793-810.

[^41]: Transcript, lines 846-874

[^42]: Oickle, above, at paras. 30, 47-48, 58, 65, 68 and 71.

[^43]: 2010 SCC 20, [2010] 1 S.C.R. 688 (S.C.C.) at para. 29.

[^44]: 2008 ONCA 578, [2008] O.J. No. 3072.

[^45]: McGuffie, above, at para 63.

[^46]: See also para. 140 of Grant.

[^47]: See R. v. Braudy, at para. 42.

[^48]: See: R. v. Hess (No. 1)(1948), 1948 349 (BC CA), 94 C.C.C. 48 (B.C. C.A.) (cited with approval by the Supreme Court in R. v. Beaver, 1957 14 (SCC), [1957] S.C.R. 531 (S.C.C.)).

[^49]: 2015 ONCA 150, [2015] O.J. No. 1099.

[^50]: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paragraph 60:

[^51]: R. v. Chalk, [2007] ONCA, page 815, paragraph 18.

[^52]: See also R. v. A.F. 2014 ONCA 823, 2014 ONCA, page 823, relative to CP allegedly downloaded to one’s computer by others.

[^53]: 2014 SCC 43, 2014, SCC, page 43.

[^54]: Morelli, above, at paras. 26-27.

[^55]: 1991 93 (SCC), [1991] 1 S.C.R. 742.

[^56]: 2016 SCC 33, [2016] 1 S.C.R. 1000, [2016] S.C.J. No. 33.

[^57]: 2009 CarswellOnt 390, [2009] O.J. No. 347.