R. v. Cardle, 2020 ONSC 7878

COURT FILE NO.: CR-20-30000422-0000

DATE: 20201130

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Beverley Olesko, Anita Kocula, for the Crown

HER MAJESTY THE QUEEN

– and –

JOSIPH CARDLE

Accused

Corbin Cawkell, for the Accused

HEARD: November 9, 10, 12, 13, &17 2020

a.J. O’Marra J. (Delivered Orally)

VOLUNTARINESS AND SECTIONS 7, 9, 10 CHARTER APPLICATION

1Mr. Josiph Cardle is charged with first degree murder in the death of his spouse, Ms. Carolyn Campbell on July 5, 2018. It is alleged that Mr. Cardle deprived Ms. Campbell, who suffered from end stage Chronic Obstructive Pulmonary Disease (COPD), of home oxygen, which led to her death.

2On July 5, 2018 at 9:40 a.m. a 911 call was made to the Toronto Police from the phone at 417 Pharmacy Avenue, Apt. No. 3 where Ms. Campbell and Mr. Cardle lived. There was no response on the 911 call and no answer on a call back.

3P.C. Jerome Desrochers was dispatched to the address to conduct an address check. He arrived at 11:03 a.m. where he was met at the door by Mr. Cardle. The officer advised he was there in response to the 911 call where there had been no answer on the call back. Mr. Cardle told the officer, words to the effect, she’s unresponsive without further comment. He led the officer down a short hallway. As they reached the end hallway the officer saw Mr. Cardle reach down to a blue rectangular object and push a button, later found to be Ms. Campbell’s home oxygen tank. At the same time, the officer saw a woman sitting in a rocking chair in the living room, slumped to her right. She was not breathing, and he found she had no pulse.

4During attempts to resuscitate Ms. Campbell by the officer and other emergency personnel, Mr. Cardle made a number of utterances and statements the Crown seeks to have adduced in evidence as having been made voluntarily.

5The defence position is that any statements made by Mr. Cardle were involuntary having been obtained in an oppressive atmosphere where he did not have an operating mind. Moreover, in the circumstances the defence contends that his Charter rights under s. 7, 9, 10(a) and 10(b) were violated and that any utterances and statements made to the police officers as well as to a supervising paramedic in attendance should be excluded pursuant to s. 24(2) of the Charter of Rights and Freedoms.

Overview of the Evidence

Constable Jerome Desrochers

6On July 5, 2018 at 11:03 a.m. Constable Jerome Desrochers of 41 Division of the Toronto Police Service attended at 417 Pharmacy Avenue, Apt. No. 3 for an address check as a result of the no response to the 911 call made earlier. The only other information known to the officer was that there had been previous calls from the location for medical complaints.

7On arrival he knocked on the apartment door and received no response. When he knocked again Mr. Cardle came to the door. He was wearing only shorts and looked upset to the officer. The officer explained to him that he was there due to the 911 call and that there had been no answer on the call back. At that point, Mr. Cardle stated something to the effect that “she’s unresponsive”. Constable Desrochers entered the apartment and followed Mr. Cardle down a short hallway toward the living room. As he followed Mr. Cardle, the officer noticed him reach down and turn on a blue machine with tubes attached. The officer later learned that it was an oxygen machine and that the tubes went to Ms. Campbell.

8On entering the small living room, the officer saw a woman, Ms. Campbell sitting in a rocking chair slanted over to the right, with a cordless phone in her lap. Her eyes and mouth were open. She was not breathing and the officer found no pulse. There were tubes around her head running to her nose. He could see no observable injuries. He took her from the chair and placed her on the floor. There he started administering CPR in an attempt to resuscitate Ms. Campbell. As he did so, he updated dispatch and requested an ambulance, another police unit and supervisor to attend.

9The tubes from the oxygen machine led to her nose where the officer could hear a wheezing sound coming from the tubes. He knew that the oxygen machine had been turned on by Mr. Cardle as a result of a clicking sound coming from it and a light that came on after he had pushed the button.

10As he commenced CPR, he asked Mr. Cardle what had happened and how long had she been like the way he found her.

11The officer testified that Mr. Cardle said that he did not know because he had gone to bed. The officer had asked why the 911 call had been placed. Mr. Cardle stated that he had called because she had asked him to call and because she had not been feeling well and was having trouble breathing. He gave her the phone and he went to his bedroom.

12The officer asked him why the oxygen machine had been turned off as he continued CPR. Mr. Cardle said he had turned it off. When asked “why” by the officer he made no response. When he was asked what illnesses Ms. Campbell had, he told the officer she had lots of illnesses, cancer and breathing problems.

13Constable Desrochers stated that he asked those questions in order to get information from Mr. Cardle which could assist the attending paramedics and others in treating Ms. Campbell when they arrived. In his mind it was a medical emergency and any information about her condition might help to save her.

14He continued administering CPR for 11 minutes until the arrival of Toronto Fire, and ambulance personnel arrived to take over. At the same time the additional police unit arrived, Constables Bertrand and Stratton.

15When Constable Desrochers had been performing CPR, Mr. Cardle sat on a couch opposite them and asked him a number of times if she would be all right. He could hear Ms. Campbell’s ribs cracking from the chest compressions.

16As resuscitation efforts continued with the other emergency services, the small apartment was very hot, very crowded, and very active. Constable Desrochers, who felt it was “just not a good scene” for Mr. Cardle to be watching them work on his spouse, asked Constable Janet Bertrand, one of two officers who had arrived, to take Mr. Cardle out of the room. He asked the other officer, Constable Ken Stratton to locate Ms. Campbell’s identification in the apartment.

17Constable Desrochers remained with the paramedics. He was advised at 11:28 a.m. that they had restored her pulse. He contacted the Criminal Investigation Bureau at 41 Division to advise of the new information. Then he left with the ambulance as they transported her to the hospital.

18Throughout his involvement in the situation he considered it to be a medical call and at no time considered Mr. Cardle a suspect in any crime, or that the apartment was a crime scene. The only information that he had on arrival at the apartment was that there had been previous calls to that address for medical assistance. In finding Ms. Campbell’s vital signs absent he asked questions to understand the medical situation, which could help save Ms. Campbell. He denied the suggestion that he was investigating a crime and that Mr. Cardle was a suspect.

19When questioned as to why he would ask for another police unit and supervisor to come to the location he stated that the other officers would be there to assist as necessary and the supervisor would be able to help facilitate whatever was needed at the scene. Further, it was the usual practice to have a supervisor attend in such situations.

20In his notes of the occurrence, the officer referenced having asked Mr. Cardle why the oxygen machine had been turned off followed by two question marks and the word “why” written followed by three question marks. It was suggested to him in cross-examination that it was an indication he suspected a crime had been committed and the only person there to suspect was Mr. Cardle. The officer stated, if she had trouble breathing, he could not understand why the oxygen machine had been turned off in dealing with the medical situation. While peculiar, he did not suspect Mr. Cardle of any “foul play”.

21Indeed, he was surprised later to learn that Mr. Cardle had been charged with an offence arising out of the situation. The last observation he had of Mr. Cardle was when he left the living room with Constable Bertrand.

Constables Janet Bertrand and Ken Stratton

22Constable Janet Bertrand and her escort Constable Ken Stratton, on uniform patrol at 11:03 a.m. heard Constable Desrochers’ call to dispatch for a police unit to assist at 417 Parliament Ave. Apt. 3 where he was administering CPR to a female without vital signs.

23Constables Bertrand and Stratton arrived at approximately 11:16 a.m. to the small apartment at the same time as the Toronto Fire, and Ambulance personnel. The small apartment was very hot, without air conditioning. Constable Desrochers was performing CPR on Ms. Campbell. Mr. Cardle was seated on a sofa opposite them. Constable Desrochers asked Constable Stratton to find Ms. Campbell’s identification and he asked her to take Mr. Cardle to another room and to ask him about Ms. Campbell’s situation.

24Constable Bertrand testified, she asked Mr. Cardle to come with her, stating, “I don’t want you seeing this”. Initially, he walked toward a bedroom, which looked like it was used for storage, without any place to sit. Then he turned and entered the next bedroom where he sat on the edge of the bed. He was bent over holding his head in his hands with his elbows on his knees. She stood at the door and hallway.

25Constable Bertrand asked Mr. Cardle what had happened. She testified she wanted to know about his spouse’s health condition and why she was not responsive. She told him there had been a 911 hang up call, with no answer on a call back. He replied, he did not call 911. Then he said he did make the call, but Ms. Campbell had taken the phone from him and she hung up.

26He told her he turned off Ms. Campbell’s oxygen tank to get a reaction out of her and he went to bed. He said he assumed she would turn it back on herself.

27When he stated he had turned the oxygen tank off the officer thought there might be some charge for doing it but did not know what it might be if any. She had been an officer for only a year. She did not know why he told her he had turned the oxygen tank off and she did not know whether Ms. Campbell needed the oxygen to survive. From her perspective, she said it was still a medical emergency response, but felt there would be some investigation, but she did not know if it would be criminal. She wanted to consult her patrol partner who had more experience.

28However, she decided she should caution him about saying anything further. Instead of telling him “you are charged with…”, she told him she did not know if there is a charge in the situation, but he was under investigation. Then she provided him the rest of the standard caution that he was not obliged to say anything and if he did say anything it could be used in evidence against him. He indicated he understood. She asked him if he had anything to say, and he said he did not.

29Notwithstanding the caution given to him at 11:38 a.m., Mr. Cardle continued to speak to the officer, even after she told him a number of times, “You need to stop talking.”

30He told her, he and his spouse had been together for 20 years and that he was sick and tired taking care of her. He had not slept himself for over 48 hours. He had pulled a hamstring and that he had just gotten out of the hospital. The only other time that he was away from her was when he went out to get groceries. He told her Ms. Campbell had cancer but was cancer free for the past two years. He said she relied on oxygen too much and that she would turn the oxygen tank on and off to smoke cigarettes.

31After Constable Stratton found her health card in the kitchen and turned it over to the paramedics, he left the apartment to canvas the number of paramedics and emergency services personnel who attended and to obtain run numbers for their reports. On arriving outside the apartment building he observed a number of residents and took the opportunity to speak with a number of them to obtain a history of any occurrences at Apt. No. 3. He was told by residents and on one occasion some yelling had been heard, but there is nothing of concern.

32On his return to the apartment he was told by Constable Bertrand that Mr. Cardle had made an odd or suspicious statement about turning off her oxygen, which led her to have cautioned Mr. Cardle from saying anything. Both agreed it was suspicious but did not know if there was anything criminal about it. It was not known whether Ms. Campbell relied on oxygen all the time.

33After Ms. Campbell was removed from the apartment at approximately 11:42 a.m. Constable Stratton called the Criminal Investigation Bureau at 41 Division to get their opinion. Detective Constable Manson-Hing called back at 12:05 p.m. told them that a decision had been made to charge Mr. Cardle with criminal negligence causing bodily harm. The officers had also been told to remain at the apartment to await relief by another police unit to secure it.

34Constable Stratton testified that although what he had been told by Constable Bertrand what Mr. Cardle had said and done, in his view, it had not become a criminal matter until advised by the Detective Constable from the Criminal Investigation Bureau at 41 Division he was to be charged. Until then their attendance was solely to deal with a medical emergency.

35Right after Detective Manson-Hing’s call Constable Bertrand told Mr. Cardle that he was going to be arrested for criminal negligence causing bodily harm. He was not advised of his rights to counsel or cautioned at that time. She described it as “informally” arresting him because they had to remain at the scene to hold it until relieved.

36Mr. Cardle was calm, cooperative and had asked to smoke a cigarette and take care of the cats. He was allowed to put on his shirt and shoes, to get his medication, to have cigarettes and to take care of his cats. Constable Stratton said if they arrested him then he would have to be handcuffed and it would have been difficult for him to move about the apartment while they waited.

37However, as before, he continued to talk, and repeat what he had said earlier about his spouse and her oxygen. The officers had not asked him any questions and tried to change the topic, such as by asking him if he wanted to call any family to tell them what has happened.

38At 12:26 p.m. Constable Bertrand “formally” arrested Mr. Cardle, as she described it, for criminal negligence causing bodily harm, read him his rights to counsel, and cautioned him again. Constable Stratton handcuffed him to the rear. He was read his rights to counsel. He advised he understood and that he did not have a lawyer, he needed duty counsel. Constable Bertrand told him it could be done at the station.

39The officers were relieved, and they transported Mr. Cardle to 41 Division at 1:02 p.m. where he was paraded before the booking sergeant at 1:49 p.m. They had arrived at 1:11 p.m. but had been delayed gaining access to the sallyport entrance occupied by another police unit.

40After parading Mr. Cardle, Constable Bertrand called duty counsel. She did not receive an answer and as a result left information on a voicemail. Duty counsel called back and was connected to Mr. Cardle by another officer. Subsequently, Constable Bertrand called duty counsel believing her call had not been returned and was advised duty counsel had already spoken with Mr. Cardle.

41Constable Bertrand received information that Mr. Cardle would also be charged with failing to provide the necessaries of life. As a result, she called duty counsel again and notified them of the new charge. When duty counsel called back Constable Bertrand had gone for the day.

Mitchell Zwicker

42Mitchell Zwicker is a Level III advanced care paramedic, the highest skill level of paramedic with the Toronto Paramedic Services trained to administer medications. He was dispatched to the scene and received information while on route it involved a female, 51 in cardiac arrest, found vital signs absent.

43On arrival he found the police, fire department personnel and a basic life support Level 1 paramedic crew on scene in the living room. The Toronto Fire personnel were doing chest compressions, CPR and the paramedics were doing ventilations. The first question he asked the paramedics as to whether the patient was in rhythm, which would dictate cardiac treatment.

44Another Level III supervisor showed up moments later. The paramedics were dealing with her airway and breathing. He initiated the IV access to administer the first round of epinephrine at 11:24 a.m., the first cardiac drug given in a cardiac arrest situation. He testified that there is generally a three to four-minute period before another round of epinephrine is administered to try to start circulation. That time period gave him an opportunity to go and speak with Mr. Cardle, the patient’s spouse, to get information about her medical history which could assist in the treatment to be given. It was also when he could advise a family member there was no pulse and the possibility of having to pronounce death.

45He spoke with Mr. Cardle just south of the little hallway in the apartment. He identified himself as the lead paramedic so Mr. Cardle would know who to talk to because of the number of people in the apartment trying to resuscitate his spouse. Mr. Zwicker did not see any police officer with him at the time they spoke.

46Mr. Zwicker asked Mr. Cardle when the patient was last seen alive and the circumstances - information which could be pertinent to her treatment. Mr. Cardle told him that at about 9:20 a.m. she had been gasping for breath and she was on home oxygen because she had COPD. He said, at that time, he turned off the oxygen and left the apartment to see if she would improve. When he returned at approximately 10:45 a.m. she was not responding.

47He also found out that there had been no CPR done prior to the emergency services arrival. He was not sure if that information came from Mr. Cardle or not. Again, he learned that she had multiple cancers but that she was in remission, also information he was not sure whether it came from him.

48At 11:27 a.m. circulation had returned to Ms. Campbell. She had a pulse, but she was still unconscious and not breathing on her own. At 11:40 a.m. the patient was moved to a stretcher by the paramedics and that at 11:42 a.m. they made their way to the ambulance and transported to the hospital at 11:51 a.m. They arrived at the hospital at 12:01 p.m. where she was taken directly to the resuscitation room and turned over to the hospital emergency staff and physician.

49Mr. Zwicker testified that when told by Mr. Cardle he turned off Ms. Campbell’s oxygen when she had difficulty breathing and, left for an hour and half without calling 911 he considered it suspicious behaviour. Later, he passed on to the police what he had been told.

Utterances and Statements

50There are four distinct periods during which Mr. Cardle made utterances to the first responders:

i) Utterances made to Constable Desrochers as he performed CPR on Ms. Campbell between 11:04 a.m. and 11:16 a.m.

ii) Responses to inquiries made by Mr. Zwicker after 11:24 a.m.

iii) When Mr. Cardle was with Constable Bertrand in the bedroom where he was cautioned at 11:38 p.m. until 12:05 p.m. when he was told he was to be arrested.

iv) Utterances made after he was told he was to be arrested by Constables Bertrand and Stratton after 12:05 p.m.

Position of the Defence

51The defence position is that all the utterances of Mr. Cardle to the first responders are inadmissible.

i) The utterances made to Constable Desrochers were made while he was detained as a suspect, in a state of utter confusion and prior to any rights or cautions being given to him.

ii) The utterances made to Constable Bertrand and Stratton were made while he was detained as a suspect while lacking an operating mind and without having been given his right to counsel.

iii) With respect to his comments to the paramedic, Mitchell Zwicker, they were made contrary to s. 7 of the Charter not having been advised he was not a police officer and that it was as part of the police investigation.

Voluntariness

52It is well settled law that the Crown must prove beyond a reasonable doubt the voluntariness of statements made by an accused to a person in authority. The Crown must establish that the statement was made in the absence of any threats or inducements. The statements were made absent oppressive circumstances, the maker had an operating mind, and was aware of his or her jeopardy. The assessment is contextual and case specific.

53It was noted in R. v. Oickle 2000 SCC 38, 2000 147 CCC 3rd 321 at p. 340 by Iacobucci J. that “the confessions rule applies whenever a person in authority questions a suspect”.

54Determining whether voluntariness is engaged in a particular case hinges on the status of the person at the time the statement was made. Consequently, not all statements made by a defendant to a person in authority are subject to the proof of voluntariness. There is a distinction between a person being a suspect and a witness. If a “suspect”, the voluntariness rules apply and if so, a determination as to whether the person was aware of what was at stake in deciding to speak to the police.

a) Suspect

55Who then is a suspect? In R. v. Teng, [2017] O.J. No. 372, at para. 26 it was noted:

Various formulations of the test to be applied in deciding whether a person was a suspect can be found in the case law. One formulation articulated by Justice Watt in Worrall, supra at para. 104, is whether the facts known to the investigators, “would alert any reasonably competent investigator to the realistic prospect” that the person may have been culpably involved in the matter being investigated. In R. v. J.R., [2003] O.J. No. 718 (SCJ) at para. 19 Justice O’Connor observed that whether the requirements of the test are met “is a question of fact in each case”. See also R. v. Morrison, [2000] O.J. No. 5733 at para. 50 (SCJ) and R. v. A.D. supra, at para. 75.

56Further, as noted in R. v. Merritt, 2016 O.J. No. 7231 at para. 39 before someone can be considered a suspect there must be a constellation of objectively discernable facts which give rise to a reasonable suspicion that the person interviewed has committed an offence. There must be some evidence which tends to demonstrate culpability before the police considers someone a suspect.

57If a person is suspected of culpable involvement, to ensure that he or she is aware of what is at stake, it would be prudent for the police to caution the person that they need not say anything, but if that person does speak then what he or she says can be given in evidence. However, even where a person is considered a suspect, “the absence of the standard caution is only one factor to be considered in the voluntariness analysis – just as the presence of such a caution does not automatically lead to the conclusion that a statement is voluntary”. See R. v. E.B., 2011 ONCA 194 at para. 88.

b) Detention

58One of the other issues in considering if a person is a suspect and the Charter issues raised are applicable is whether or when the accused is detained.

59The Supreme Court in R. v. Grant, 2009 SCC 32 identified several situations in which police questioning and the interference with an individual’s movements would not give rise to investigative detention. There are many instances in which reasonable people would understand that the police were not constraining the individual’s movements as a means of detaining them as a suspect but rather gathering information in order to assist the public and respond to a situation. One such example identified by the court is that of medical emergencies where the police interference with an individual’s freedom of movement would not trigger an investigative detention.

60In considering a detention in the Charter rights context, an individual’s liberty interest may be constrained by physical or psychological detention. Notwithstanding either form of constraint, the court noted in Grant at para. 36:

We may rule out at the outset situations where the police are acting in a non-adversarial role and assisting members of the public in circumstances commonly accepted as lacking the essential character of a detention. In many common situations, reasonable people understand that the police are not constraining individual choices but rather helping people or gathering information. For instance, the reasonable person would understand that a police officer who attends at a medical emergency on a 911 call is not detaining the individuals he or she encounters. This is so even if the police, in taking control of the situation, effectively interfere with an individual’s freedom of movement. Such deprivations of liberty will not be significant enough to attract Charter scrutiny because they do not attract legal consequences for the concerned individuals.

Application to the Circumstances in this Case

61There are four distinct periods during which the accused made comments that the Crown seeks to adduce in evidence.

i) The first was in response to questions asked by Constable Desrochers with respect to what had happened when he found Ms. Campbell without vital signs of life.

ii) The second was when Mr. Cardle spoke with Constable Bertrand, in response to her question as to what had happened, and then utterances he made after she had cautioned him not to say anything further.

iii) The third time Mr. Cardle made statements against interest was in answer to the inquiries of the paramedic, Mitchell Zwicker as to when he had last seen his spouse alive and her medical history.

iv) The fourth time that he made comments was after Constables Bertrand and Stratton advised him that he was going to be arrested for criminal negligence causing bodily harm.

62Defence counsel contends that Mr. Cardle must have been considered a suspect from the moment Constable Desrochers observed him alone in the apartment with Ms. Campbell vital signs absent, which required at a minimum a caution not to say anything. The facts known to Constable Desrochers moments after arriving in the apartment would have alerted a reasonably competent investigator to the realistic prospect that Mr. Cardle was culpably involved in the death of his spouse.

63In this instance, it was clear in Constable Desrochers’ evidence that he was responding to a medical situation and had no idea, nor could he have had any idea as to how Ms. Campbell came to be in the state in which he found her. At the most, he found it odd as they moved toward her that Mr. Cardle had turned on a machine, which he later found out to be an oxygen tank. His inquiries were made to obtain information which could be used to assist Ms. Campbell. Constable Desrochers’ focus of attention was on rendering assistance to save Ms. Campbell as he continued CPR for 11 minutes in the small very hot apartment.

64Counsel submitted that Constable Desrochers must have known it was a situation that warranted criminal investigation because he called for a supervisor to attend. I accept Constable Desrochers’ evidence that the request for an ambulance, an additional police unit and a supervisor was one that would have been made in any medical emergency.

65Constable Desrochers’ evidence, which I accept, was that at no time did he consider Mr. Cardle a suspect. Clearly his focus was on Ms. Campbell in trying to save her life. He had no information as to what role, if any, the availability of oxygen had in her present circumstances, or that its lack of availability would be the cause of any bodily harm or death. He was surprised when he had learned later that Mr. Cardle had been charged with criminal negligence causing bodily harm, then failure to provide the necessaries of life.

66During the time Mr. Cardle was with Constable Desrochers he was not a suspect. The statements he made at the time do not require proof of voluntariness.

67However, even had he been a suspect, there is no evidence of constraint, physical or psychologically; that he was subject to an oppressive atmosphere, threats, inducements, or that he was so upset or confused that his utterances were made without an operating mind. I am satisfied beyond a reasonable doubt that his utterances made to Constable Desrochers were made voluntarily and Charter compliant.

68When Mr. Cardle left with Constable Bertrand at Constable Desrochers’ direction it was not a good scene. There were multiple emergency personnel in a small hot apartment trying to resuscitate Ms. Campbell. He was not being detained. There is no evidence to suggest otherwise. Rather, I accept Constable Desrochers’ evidence that he gave the direction in his belief it would lessen Mr. Cardle’s anguish in witnessing what was happening to his spouse.

69When Constable Bertrand was with Mr. Cardle and asked him what had happened, she had no information from Constable Desrochers as to any observation he may have made earlier. She knew there had been a 911 call with a no response call back, a female had been found unresponsive and CPR was being performed by Constable Desrochers. Her inquiry was in the context of a medical emergency. He was not a suspect to her.

70When he offered that he had turned off her oxygen, not knowing if his spouse required oxygen to survive, Constable Bertrand cautioned him in the belief he could be in jeopardy, but she did not know what that might be for. By cautioning him he was made aware of the possibility of some jeopardy, the nature of which was unknown but if he said anything it could be used against him in court. What Mr. Cardle said subsequent to the caution was of his own volition. The officer made no further inquires. I accept that Constable Bertrand, and later when Constable Stratton was present that they did not ask him any questions. Indeed, as he continued to speak with them, the officer told him several times that he should stop talking.

71In considering the circumstances there is nothing to suggest that he was compelled to speak to the officer as a result of any promises, threats or inducements. Further, while he was no doubt upset about his spouse’s situation, there is no evidence to suggest that he did not have an operating mind when he made any of his comments to the officers. All of his utterances made to the police were voluntary.

Utterances made to paramedic Mitchell Zwicker

72Defence counsel submitted that the statements made to Mr. Zwicker, the paramedic, were to a person in authority and subject to proof of voluntariness.

73The definition of who constitutes a “person in authority” was set out by the Supreme Court in R. v. Hodgson (1998), 1998 798 (SCC), 127 CCC 3rd 449 at para. 33 where comments made by McIntyre J.A. in R. v. Berger (1975), 1975 1250 (BC CA), 27 CCC 2nd 357 (BCCA) at pp. 385-86 were cited with approval:

The law is settled that a person in authority is a person concerned with the prosecution who, in the opinion of the accused, can influence the course of the prosecution. The test to be applied in deciding whether statements made to persons connected in such a way with the prosecution are voluntary is subjective. In other words what did the accused think? Whom did he think he was talking to? . . . Was he under the impression that the failure to speak to this person, because of his power to influence the prosecution, would result in prejudice or did he think that a statement would draw some benefit or reward? If his mind was free of such impressions the person receiving this statement would not be considered a person in authority and the statement would be admissible.

74In Hodgson at para. 34 the court added that the accused’s belief that he or she is speaking to a person in authority must be reasonable.

75In this instance, Mr. Zwicker was not a person in authority, nor could Mr. Cardle have perceived him as such. He was wearing a Toronto EMS paramedic’s uniform and identification. He introduced himself to Mr. Cardle as the lead paramedic, the person he should talk to if he had questions about his spouse. He asked Mr. Cardle questions with respect to Ms. Campbell’s medical circumstances in the context of an acute medical emergency. There were no officers present at the time he spoke to Mr. Cardle. He spoke with Mr. Cardle at approximately 11:24 a.m., prior to Constable Bertrand speaking with him and cautioning him at 11:38 a.m.

76There is no reasonable basis for Mr. Cardle to have believed Mr. Zwicker could influence the course of any investigation or prosecution of him. The only investigation at the time was a medical one in the context of the emergency personnel efforts to try to save Ms. Campbell’s life. There is no evidence to support a finding that Mr. Cardle believed that Mr. Zwicker could influence any legal proceeding against him. Nor is there any evidence that would support a reasonable basis for that belief.

77Mr. Zwicker was not a person in authority and any utterances made by Mr. Cardle to him are admissible.

Was Mr. Cardle detained for the purposes of the Charter?

78In R. v. Grant, supra at para. 19, the Supreme Court observed that constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint. Further, the court added that “only the individual whose liberty is meaningfully constrained has genuine need of the additional rights accorded by the Charter to people in that situation”. It must be significant, physical or psychological restraint. Psychological detention is established where there is a legal obligation on the person to comply with the restrictive request or demand or in a situation where a reasonable person could conclude by the state conduct that he has no choice but to comply.

79Here, there is no evidence that in the police involvement with Mr. Cardle, up to the point he was told by Constable Bertrand that he was “arrestable” for criminal negligence causing bodily harm that he was physically or psychologically detained.

80When Constable Desrochers commenced CPR on Ms. Campbell, Mr. Cardle chose to sit on a couch opposite and observe what was occurring. When the officer asked Constable Bertrand to get him out of there it was not a direction to detain him but rather an act of compassion to lessen his anguish. As the officer stated it was not “a good scene” in his view as he, Toronto Fire personnel and paramedics worked feverously to resuscitate Ms. Campbell.

81When Constable Bertrand requested that he come with her, she followed him to where he chose to sit. Mr. Cardle led the way initially to a bedroom where there was no place to sit, then he entered another bedroom where he sat on the edge of the bed. Nothing in the officers’ conduct or words could have been interpreted as a direction. Even if it could be so interpreted, it was done in the context of what was clearly a medical emergency and to keep him out of the way. As noted in Grant, a reasonable person would understand that police attending a medical emergency are not detaining the persons encountered.

82Further, there was nothing asked by the officers that was adversarial or accusatory. Indeed, after Mr. Cardle was cautioned by Constable Bertrand, he was not asked any further questions. He chose to talk, even with the officer’s admonitions not to do so.

83I accept the evidence of the officers that there is nothing preventing Mr. Cardle from leaving, had he chosen to do so, up to the time they were told he was to be arrested for criminal negligence causing bodily harm.

84However, at 12:05 p.m. when Constables Bertrand and Stratton received information from Detective Mason-Hing of the CIB that Mr. Cardle was to be arrested for criminal negligence causing bodily harm, his status changed, and he was detained. At that time, he had the right on arrest or detention pursuant to s. 10(a) of the Charter “to be informed properly of the reason thereof” and s. 10(b) and “to retain and instruct counsel without delay and be informed of that right”.

85Even though the officers chose to delay formally arresting Mr. Cardle, to allow him to move freely about the apartment, to get dressed, smoke cigarettes and care for his cats, while they waited for their relief unit, he was detained within the meaning of s. 10 and entitled to be informed of his rights. Not to have done so at that time was a breach of his Charter right to have been advised of his right to retain and instruct counsel without delay.

Section 24(2)

86In R. v. Grant at para. 71 the Supreme Court sets out that where there is a Charter breach, the s. 24(2) analysis requires looking at the effect of admitting the evidence on the public confidence in the administration of justice in the long term, having regard to: 1) the seriousness of the Charter-infringing conduct; 2) the impact of the breach on the Charter-protected interests of the accused; and 3) society’s interest in the adjudication of the case on the merits.

87With respect to the seriousness of the Charter-infringing state conduct, I am to consider the police conduct along a continuum from the inadvertent and minor Charter violations at one end to violations at the other end that are a wilful or reckless disregard for the person’s Charter rights. The more serious the infringement it is more likely to have a negative effect on public confidence in the rule of law and bring the administration of justice into disrepute.

88Here, the officers decided to delay providing the accused with his right to access counsel for a period of approximately twenty minutes after telling him he was to be arrested. Later, when he was advised he told the officers he did not have a lawyer but wanted to speak with duty counsel. Not to have advised Mr. Cardle of his right to counsel earlier, while purposeful conduct, in my view it was done in good faith and with good intentions on the part of the officers to permit him to prepare himself to be removed from his home. It was thoughtless, but not done in bad faith on the part of the officers. It was conduct along the conduct continuum which pulls toward inclusion.

89In considering the impact of the breach I consider that the officers did not attempt to elicit any of the comments made by the accused thereafter. Rather, the officers tried to divert him from speaking about what happened by asking him whether he needed to speak to family or to let Ms. Campbell’s family members know. However, not being told of his rights, or as a result an opportunity to make an informed choice about speaking with a lawyer, and not saying anything further, favours exclusion.

90In considering society’s interest in the adjudication of the matter on the merits the question is whether the truth-seeking function of the trial process is better served by admission of the evidence, or by its exclusion. In R. v. McGuffie, 2016 ONCA 365 at para. 62 Doherty J.A. noted in this inquiry where the evidence is reliable and critical to the Crown’s case the pull toward inclusion of the evidence is particularly strong. In this case where the utterances that are not recorded verbatim or contemporaneously the reliability is tenuous at best. Further, the Crown’s case will neither rise nor fall on the admission of these utterances.

91In McGuffie at para. 63 the court notes that the third inquiry becomes important when one but not both of the first two inquiries pushes strongly toward exclusion of the evidence. In this assessment the second inquiry favours exclusion, whereas the first inquiry less so. The evidence is not necessary to fulfil the truth-seeking function of the trial and its admission is outweighed by the negative impact on the accused’s protected Charter rights.

92On balance, having regard to all of the circumstances, I am satisfied that the admission of Mr. Cardle’s utterances, made fallowing being told he was to be arrested, but not advised of his Charter rights, would bring the administration of justice into disrepute and shall be excluded as evidence in these proceedings.