COURT FILE NO.: CR-19-300000341
DATE: 20210512
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KATHIRGAMANATHAN SUPPIAH
Rosemarie Juginovic and Alex Penny for the Crown
Monte MacGregor and Amanda Warth for Kathirgamanathan Suppiah
HEARD: March 29, 2021
Supplementary Reasons re Admissibility of the Defendant’s Statements
MacDonnell, J
[1] On the defendant’s trial for the second degree murder of his wife, the Crown proposed to adduce statements that he made to the various police officers with whom he had dealings in the hours following the discovery of his wife in a vital signs absent state within the family home on December 12, 2017. For the purposes of the admissibility analysis, the statements can be grouped into three time periods:
(i) between the arrival of the first police officer at 2:15 p.m. and the arrest of the defendant for murder at 3:05 p.m.;
(ii) between the defendant’s arrest at 3:05 p.m. and the conclusion of his first conversation with the homicide detectives at 8:36 p.m.; and
(iii) between 11:16 p.m., when the first video-recorded interview with the homicide detectives began, and 1:29 a.m. when the second video-recorded interview ended.
[2] Before the defendant’s statements could be admitted into evidence, the Crown was required to prove beyond a reasonable doubt that they were voluntary. The position of the defence was that the Crown had not met its burden in that respect. The defence further submitted that after the defendant was placed under arrest and he expressed a desire to speak to counsel, the police failed to facilitate that desire for more than six hours, thus infringing his right under s. 10(b) of the Charter to retain and instruct counsel “without delay”. Accordingly, the defence submitted, all of the statements that the defendant made following his arrest were obtained in a manner that infringed his rights and they should be excluded under s. 24(2) of the Charter.
[3] As the case was being tried without a jury, the parties agreed to blend the evidentiary hearings in relation to both voluntariness and the Charter into the trial itself and to argue the admissibility issues at the conclusion of the Crown’s case.
[4] On March 30, 2021, after hearing from counsel, I ruled as follows:
(i) with the exception of one particular utterance, all of the statements made by the defendant between 2:15 p.m. and 3:05 p.m., were admissible;
(ii) none of the statements made by the defendant between 3:05 p.m. and 8:36 p.m. were admissible; and
(iii) all of the statements made subsequent to 11:16 p.m. were admissible.
[5] At the time I made that ruling, I provided brief oral reasons and indicated that I would expand upon them in writing. These are those expanded reasons.
I. The Voluntariness Issues
[6] Before a statement made by a defendant to a police officer can be admitted into evidence at the instance of the Crown, the Crown must prove beyond a reasonable doubt that the statement was voluntary. The assessment of voluntariness is contextual and case-specific. While all of the circumstances surrounding the making of the statement will be relevant, of prime concern will be whether the statement was induced by hope of advantage or fear of prejudice emanating from the police in the form of promises, threats or other mistreatment, whether the police employed improper trickery, whether the statement was obtained in oppressive circumstances, and whether the defendant had an operating mind.
[7] The defence conceded that at no point did anyone make any promises or threats to induce the defendant to speak, that he was not physically mistreated, and that no trickery was employed. The sole issues raised in relation to voluntariness were whether the circumstances in which the statements were made were oppressive, and whether at the time the statements were made the defendant had an operating mind.
(i) Oppression
[8] At 1:38 p.m. on December 12, 2017, Sophia Nathan, the daughter of the defendant, called 911 after discovering her mother unconscious on the floor of a third-floor bedroom in the family home. The first pair of paramedics arrived at 1:46 p.m., followed almost immediately by a number of firefighters. The defendant was sitting on the floor in the hallway in the area in which the paramedics were attempting to perform CPR. He was drunk, and in the way, and he was asked a number of times to move. Eventually, he got up and went downstairs, accompanied by two of the firefighters. He went to the living room and sat by himself on the sofa. The police had not yet arrived.
[9] The first police officer, Constable Sneep, arrived at 2:15 p.m. Over the next 16 minutes three other police officers arrived – Constables Kelloway and Vukovic and Sgt Delio. The defendant remained on the sofa in the living room until 2:53 p.m., when he was escorted out of the house to an ambulance to receive first aid for a gash to the back of his head. The statements that the defendant says were the product of oppressive circumstances were made in the 38-minute interval between 2:15 and 2:53 p.m.
[10] The argument that the atmosphere in that time period was oppressive rests on the testimony of the defendant. He testified that he was deprived of his liberty to move from the sofa. He said that the police officers were standing right in front of him and that when he tried to stand up, he was told to sit down. He said that he was already scared and that this made his fear worse. He said that the officers refused to let him go to the washroom to urinate, and that when he asked if he should urinate on the sofa, they just smiled at him. He also said that the officers did not listen to him, and that they did not respect him like a human being, “like a Canadian”.
[11] All four of the officers who heard the defendant make statements in the living room testified. None of the defendant’s allegations of mistreatment were put to any of them in cross-examination. It is unnecessary to attempt to fashion a remedy for this breach of the rule in Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H.L.), however, because I reject the defendant’s account of how he was treated. His evidence is inconsistent with the credible testimony of the officers, whose description of their dealings with the defendant contained nothing to support a suggestion that he was treated with anything other than courtesy, professionalism and respect.
[12] Both Constable Sneep and Constable Kelloway, who arrived separately, testified that the only information that they had when they attended was that a female had been found in the premises not breathing, that paramedics were on the scene, that a family member had been drinking and making things difficult for the paramedics, and that a police presence was requested. Sneep testified that when he arrived, he observed the defendant sitting on the sofa in the living room, alone. He was yelling, but Sneep could not make out what he was saying. As Sneep approached, the defendant pointed upstairs and said, “Mind your business”. Sneep noted that the defendant had glossy eyes and that there was an odor of alcohol around him. Sneep did not speak to the defendant, ask him any questions, or give him any direction. Unprompted, the defendant said: “I thought she was sleeping”, and “How’s my wife?” The defendant repeated those statements multiple times while Sneep was in the premises.
[13] Constable Sneep headed upstairs to make sure that the paramedics were alright. While he was on his way up, he encountered a paramedic who advised him that there were obvious signs of trauma to the patient, that this might be a homicide, and that the patient was going to be transported to hospital. Sneep immediately began clearing a path for the paramedics. He was aware that the defendant was still seated on the sofa in the living room, but he had no further dealings with him.
[14] Constable Kelloway arrived at 2:16 p.m., one minute after Sneep. Kelloway testified, unchallenged, that as far as he was concerned this was just a medical call and that his only role was to ensure that members of the family who had been drinking did not interfere with the paramedics. He proceeded up to the living room, where he found the defendant sitting alone and speaking on a cordless phone. He heard the defendant say something along the lines of ‘the police are here’. He extended the phone toward Kelloway, offering it to him, and saying either ‘my lawyer’ or ‘a lawyer’. Kelloway declined the offer. After the call ended, the defendant volunteered that he had run upstairs when he heard his daughter crying and that he had fallen and hit his head. He said that he had thought that his wife was sleeping. Over the next 30 minutes or so, unsolicited, the defendant repeated those remarks a number of times.
[15] The defendant’s son, Lageevan, arrived home from school at about 2:20 p.m. He and the defendant had a conversation in a mixture of Tamil and English. The only thing that Kelloway could make out was one specific sentence, which was said in English: “You know she makes me angry”.
[16] For most of the time that he was inside the house, Kelloway remained in the living room with the defendant, but he did not interact with him, ask him any questions or give him any directions. He testified that he still did not have any information that this was a homicide investigation, and that at no point did he receive information that the patient had signs of trauma.
[17] Sergeant Delio arrived at 2:28 p.m. He attended the scene because Sneep had requested additional units due to the defendant’s emotional condition. By the time he arrived, the paramedics had left with the patient. Delio proceeded to the living room, where he met Kelloway. The defendant was seated on the sofa. Delio asked Kelloway what was going on and Kelloway said he had no idea. Delio went up the third floor to take a view and then returned to the living room.
[18] Delio testified: “Clearly, [the defendant] was nervous. He was fidgety. He would get up, take a small pace, we asked him to sit down. I advised him that our whole purpose was to find out what was going on here.” At this point, however, “I didn’t formulate that he was a suspect, I was just putting it together”. He noticed that there was dried blood on the defendant’s hands, and he asked him where it had come from. The defendant reached to the back of his head, and Delio saw that he now had wet blood on his hands. Delio asked him: “What happened?” The defendant said that he had heard his daughter crying, that he went upstairs, and that as he came down the stairs he had fallen and suffered the injury to his head. Delio did not believe that explanation – the stairs were carpeted, and he did not see blood. He asked for a further explanation but the defendant wasn’t answering: “There was a lot of pausing, and I was thinking that he did not want to say what was going on…I felt he was being selective in terms of what he wants to tell me and what he doesn’t want to say”.
[19] Because of the blood that was oozing from the cut to the back of the defendant’s head, Sgt. Delio instructed Constable Kelloway to call for another ambulance to attend at the scene. After doing that, Constable Kelloway went out to his cruiser, retrieved a first aid kit, returned, cut off a section of gauze, and gave it to the defendant. The defendant held the gauze to his head, but he kept taking his hand away. Kelloway had Lageevan move over beside his dad and hold the gauze to his head.
[20] Constable Vukovic arrived at 2:31 p.m. He was aware that the patient had been taken to hospital with vital signs absent, that there were signs of trauma, and that the situation looked suspicious. He accompanied Delio up to the third floor. When he came back down to the living room, the defendant was still seated on the couch. He was talking, not to anyone in particular, and not in response to any questions. Vukovic testified that this was a pattern that repeated itself on many occasions through the rest of the afternoon. The defendant stated that he had been sleeping, that his daughter woke him up, that his wife wasn’t waking up, that he had run to check on her, and that when he did that he fell and hit his head. He also said that it was a bad neighbourhood. As had the other officers, Vukovic noticed the odor of alcohol coming from the defendant and he recalled that his speech was strongly slurred. A couple of times the defendant asked about the condition of his wife. Vukovic believed that they told him that she was at the hospital.
[21] It seems that Vukovic regarded the defendant as a suspect from the time he came back downstairs. However, he did not caution him until 2:43 p.m., when the defendant started to get up to leave, ostensibly to go to the hospital to see his wife. At this point, both Delio and Sneep were outside the house, and the only persons in the living room with the defendant were Kelloway and Vukovic. As the Crown observed, the fact that the defendant got up to leave is an indication that up to that point he did not believe that he was detained. Vukovic now advised him that he was being detained for a serious criminal investigation. He cautioned him and advised him of his right to counsel. The defendant told Vukovic that he did not need to speak to a lawyer because he had already done so. Vukovic testified that prior to the caution he had not asked the defendant any questions nor had he attempted to engage him in conversation.
[22] With the exception of Sgt Delio, all of the officers who were in the presence of the defendant within his home that afternoon carefully avoided questioning him about anything to do with what had happened to his wife. Sgt Delio did ask a question, but it was about what had happened to the defendant, not about what had happened to the deceased. Delio testified that when he asked that question, he did not regard the defendant as a suspect. I believe Delio, but I accept that a reasonable investigator might well have taken a different view of the defendant’s status, and thus the failure to caution him before asking the question is relevant to whether his response was voluntary.[^1] The absence of a caution is not determinative, however, and I am satisfied that in this case a caution would not have made any difference. The defendant had no interest in keeping silent about what had happened. Even after Constable Vukovic cautioned him, he continued to volunteer his account of how he came to discover that his wife was in medical distress.
[23] I reject the suggestion that the officers showed a lack of respect for the defendant, or that they refused to let him use the washroom. The testimony of Constable Kelloway that he left the premises to get a first aid kit to deal with the injury to the back of the defendant’s head was unchallenged, as was the evidence that Sgt Delio gave an instruction to call for paramedics to attend to provide further treatment. The conduct of the police in this respect is inconsistent with an allegation of a lack of respect.
[24] I accept that the presence of a number of police officers in his home in the aftermath of a medical emergency involving his wife was stressful for the defendant, but I am satisfied that the stress never approached the level of oppression. Further, there is nothing to suggest that it played any role in the defendant’s decision to volunteer statements to the officers at the scene. Apart from his response to Sgt Delio, none of the statements were induced by anything the police did or by the atmosphere within the house. The defendant began advancing his position that he had nothing to do with what had happened to his wife as soon as he saw Constable Sneep enter the house, well before the alleged circumstances of oppression arose, and he continued to advance that position throughout the day. He spoke to the police because he thought it was in his interest to speak, but this was not a thought that was planted in his mind by the police.
[25] The defendant was arrested for murder at 3:05 p.m. He did not testify that there was anything oppressive about any of the dealings that he had with the police from that point forward. He claimed that he had no memory of those dealings. Nonetheless, the burden remained on the Crown to prove that his post-arrest statements were voluntary, and in that respect the Crown relied on the viva voce evidence of the officers who dealt with him, the video recording of the booking process, and the video recording of the two formal interviews that were conducted later that night by Detectives North and Patterson.
[26] At the time the defendant was placed under arrest for murder, he was advised of his right to counsel and cautioned. He indicated that he wished to speak to a lawyer. Constable Vukovic told him that he would have an opportunity to do so once they were at the police station. Prior to going to the station, however, Vukovic and Kelloway took the defendant to hospital to have the wound to the back of his head stapled. En route to the hospital, the defendant continued to make statements about what had happened, notwithstanding that the officers did not ask him any questions or attempt to engage him in conversation. Indeed, they told him he should stop talking because he was being recorded. They arrived at the hospital at 3:30 p.m. and remained with him in a treatment room for just over three hours. After he was cleared to leave the hospital, they took him to 42 Division, where he was booked into the station.
[27] The proceedings at the time of the booking were recorded on video. The defendant was treated politely and with respect throughout the booking process. He appeared to be relaxed. Constable Alagarajah, a Tamil-speaking officer, was present to act as an interpreter. The defendant immediately recognized him as the officer who had given him a POA ticket more than 20 months earlier. The defendant laughed and said that he was comfortable with Constable Alagarajah and that he liked him. After the booking, the defendant was placed in a cell. At 8:23 p.m., Detectives North and Patterson came to speak to him with the assistance of Constable Alagarajah and reviewed his right to counsel of choice. He was told that water and food would be provided to him. In the course of this discussion, the defendant twice told the detectives: “I’m happy”.
[28] Between 9:35 and 10:04 p.m. the defendant spoke to duty counsel with the assistance of a Tamil interpreter. Following that, he was fed, and at 11:16 p.m. the first of the two video-recorded interviews with the homicide detectives began. At multiple points in the first interview, the defendant laughed. At all times, North and Patterson were professional and polite in their communications with him. When, in the midst of the first interview, he decided that he wanted to stop answering questions, they did not press him, but instead gave him the opportunity to talk to a lawyer again. No doubt, Detective North became more pressing in the course of the second interview, after the defendant made it clear that he was not going to answer any more questions, but I do not consider the attempts by North to persuade the defendant to talk to have crossed the line into oppression.
[29] Apart from the testimony of the defendant with respect to what had happened at his house, there was no plausible basis for a suggestion that any of the statements he made to the police were made in oppressive circumstances. I rejected the defendant’s testimony concerning the way the officers at the scene treated him. I was satisfied beyond a reasonable doubt that none of the statements that the defendant made to the police from the time the first officer arrived until the end of the second video interview were made in an atmosphere of oppression.
(ii) Operating mind
[30] The submission that the defendant did not have an operating mind at the time he made statements to the police rested almost entirely on the evidence of his intoxication.
[31] I accept that the defendant was, in common parlance, drunk, when Constable Sneep arrived at the house, and that he remained drunk while in the presence of Constables Kelloway and Vukovic and Sgt Delio. I see no reason not to accept the defendant’s evidence with respect to the extent of his alcohol consumption that day. It is supported by the evidence of the defendant’s friend, Mr. Shivaprakasam, that when he and another friend, Moorthi, who had been drinking with the defendant in the morning, left the defendant’s house shortly before 1:00 p.m., they did not want the defendant to come with them because he was too drunk. Sophia Nathan, the defendant’s daughter, testified that when she came home at 1:35 p.m. and saw the defendant sitting on the floor of the master bedroom, she immediately recognized that he was drunk. The evidence of the firefighters Paul Kennedy and John McKeown and the police officers who came to the house provides confirmation for the assessments of Mr. Shivaprakasam and Ms Nathan.
[32] The fact that a defendant was in a state of intoxication at the time he made a statement is relevant to a determination of whether the statement was the product of an operating mind, but it is not dispositive. In the leading case of R. v. Whittle, 1994 55 (SCC), [1994] 2 SCR 914, the Supreme Court stated at para. 45:
The operating mind test, therefore, requires that the accused possess a limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused. Indeed it would be hard to imagine what an operating mind is if it does not possess this limited amount of cognitive ability. In determining the requisite capacity to make an active choice, the relevant test is: Did the accused possess an operating mind? It goes no further and no inquiry is necessary as to whether the accused is capable of making a good or wise choice or one that is in his or her interest.
[33] The question, therefore, is whether notwithstanding the evidence of intoxication, the defendant had the capacity to understand what he was saying to the officers and the capacity to understand that it could be used in proceedings against him. If he had the capacity to understand those things, whether in fact he understood them is not relevant to whether he had an operating mind.
[34] The following considerations, among others, make it clear that the Whittle test is satisfied in this case:
(i) in the course of the 911 call, when Sophia Nathan was having difficulty describing the type of building they lived in, the defendant supplied the answer: “A townhouse”. Later, when the dispatcher asked for the age of the deceased, and Ms. Nathan said it was 45, the defendant corrected her, and said it was 46. He also followed her direction to go downstairs to make sure the front door was unlocked.
(ii) when Constable Vukovic advised the defendant that he was detained, the defendant tried to make a case for going to the hospital.
(iii) the paramedic Stephanie Chung conducted an awareness test of the defendant in the ambulance at 2:56 p.m., asking him where he was, who he was, and what the date was, and he answered all three questions appropriately. She also conducted a Glasgow Coma Scale assessment to measure his ability to obey commands, to keep his eyes open and to speak in an oriented manner. She scored him at the highest level. She said that she was able to communicate with him in English and that he did not seem confused.
(iv) at the time of booking, the defendant immediately recognized Constable Alagarajah as the officer who had given him a POA ticket more than 20 months earlier, and who had been at the courthouse for the trial of that matter about ten months after that. The defendant laughed and said that he was comfortable with Alagarajah and that he liked him.
(v) at 8:23 p.m., when the homicide detectives checked in with the defendant, he again recognized Alagarajah. When asked if he understood that he had been arrested for second degree murder, he said “I do understand but I won’t accept it”. When asked if he wanted to speak to a lawyer, he focused on the probable unavailability of his own lawyer and expressed a wish to follow the alternative course of speaking to duty counsel. He was asked if the two beers he said he had in the morning made him intoxicated now; he responded: “No, no, no”.
(vi) at 11:16 p.m., at the outset of the first video interview, the defendant and the detectives discussed his right to counsel of choice. There was nothing in that discussion that would support a suggestion that he lacked the cognitive ability to understand what he was saying and that it could be used against him.
(vii) after Detectives North and Patterson explained his right to speak to another lawyer if he was not happy with the advice from duty counsel, the defendant stated: “I don’t want any other lawyer now. I will continue with the lawyer I spoke to”. And then: “you don’t need to arrange another lawyer for me. Thanks for your offer.”
(viii) Detective North told the defendant: “At any time during this interview if you want to speak to your lawyer or to another lawyer, we can stop everything and give you another lawyer”. The defendant responded: “I understand that.” Later, he decided to take advantage of the opportunity that North had offered for him to get further advice from duty counsel.
(ix) the defendant told Detective North that his daughter Sophia went to university at Morningside and Ellesmere. When Detective North mistakenly referred to this as York University, the defendant interjected that York University is at Keele and Highway 7, and that it is the University of Toronto at Morningside and Ellesmere.
(x) when asked by the detectives for his wife’s cell phone number, the defendant immediately and without pauses provided all ten digits.
[35] Taken together, those circumstances show that notwithstanding the evidence of his intoxication, the defendant had an operating mind at all material times. He had the capacity to understand what he was saying and the capacity to understand that it could be used in proceedings against him. As Justice McIntyre observed in R. v. Clarkson, 1986 61 (SCC), [1986] 1 S.C.R. 383, at para. 27, “common sense would dictate that a very high degree of intoxication would be required” to give rise to a doubt that a defendant’s statement to a police officer was the product of an operating mind. The viva voce and video evidence demonstrate that there is no such doubt in this case.
(iii) summary re voluntariness
[36] As I stated earlier, the assessment of voluntariness is contextual and case-specific. While all of the circumstances surrounding the making of the statement will be relevant, of prime concern will be whether the statement was induced by hope of advantage or fear of prejudice emanating from the police in the form of promises, threats or other mistreatment, whether the police employed improper trickery, whether the statement was obtained in oppressive circumstances, and whether the defendant had an operating mind. In this case, the defence conceded that at no point did anyone make any promises or threats to induce the defendant to speak, that he was not physically mistreated, and that no trickery was employed. The sole issues raised in relation to voluntariness were whether the circumstances in which the statements were made were oppressive, and whether at the time the statements were made the defendant had an operating mind.
[37] For the foregoing reasons, I was satisfied beyond a reasonable doubt that none of the defendant’s statements were made in circumstances of oppression and that all of them were the product of an operating mind. I was satisfied beyond a reasonable doubt that all of the statements were voluntary.
II. Notwithstanding Voluntariness, Not All of the Statements Are Admissible
(i) The statement to the defendant’s son, Lageevan
[38] The fragment of the defendant’s conversation with his son that was overheard by Constable Kelloway – “You know she makes me angry” – is inadmissible. This utterance, which was said in English, was part of a larger conversation that the defendant was having with his son in the Tamil language, which Kelloway does not understand. There is no evidence with respect to what the larger conversation was about or the context within which the fragment in English emerged. In the absence of the surrounding context, the meaning of the utterance is too speculative to have probative value: R. v. Ferris, 1994 31 (SCC), [1994] 3 S.C.R. 756; R. v. Hunter (2001), 2001 5637 (ON CA), 155 C.C.C. (3d) 225 (Ont. C.A.). Accordingly, I excluded it.
(ii) the statements between 3:05 p.m. and 9:35 p.m.
[39] Although they had been shown to be voluntary, I ruled that none of the statements that the defendant made in the interval between his arrest at 3:05 p.m. and his consultation with counsel at 9:35 p.m. should be admitted. Those statements included the following:
(i) on multiple occasions while he was being driven to the hospital and at the hospital the defendant repeated to Constables Kelloway and Vukovic the statements that he had made within the home prior to his arrest.
(ii) on two occasions during the booking process, the defendant made statements in relation to what had happened to his wife. The first statement was elicited by Constable Alagarajah at the conclusion of a repetition of the caution. The second was ‘volunteered’ by the defendant later in the booking process.
(iii) in the course of booking, the booking sergeant asked the defendant about his consumption of drugs or beer and the defendant responded that he had only had two beer around 11 a.m.
(iv) during the first conversation that the homicide detectives had with the defendant, between 8:23 p.m. and 8:36 p.m., Detective North also asked the defendant how much beer and vodka he had consumed that day and the defendant told him that it was just two beer.
[40] All of those utterances were made while the defendant was in police custody, after he had asserted his right to consult counsel without delay, but before the police had made any effort to comply with their obligation to facilitate that right.
[41] I am prepared to assume, without deciding, that having regard to the police explanation for not immediately taking steps to facilitate the defendant’s access to counsel, the delay of more than 5 hours before beginning to do so did not in itself constitute an infringement of s. 10(b) of the Charter. That is, I am prepared to assume that none of the utterances were obtained in a manner that infringed the defendant’s right to consult counsel “without delay”. As well, I accept that the questions that were asked by the booking sergeant and Detective North about the amount that the defendant had to drink were not asked for the purpose of gathering evidence in support of the charge that the defendant was facing, that asking those questions did not infringe s. 10(b), and thus that the defendant’s statements in relation to his drinking were not obtained in violation of s. 10(b): see R. v. Dupe, 2010 ONSC 6594, reversed on other grounds, 2016 ONCA 653. The question asked by Constable Alagarajah is in a different position in that it was clearly aimed at eliciting evidence in relation to the murder charge. As the police had not yet put the defendant in a position to exercise his right to counsel, it was a violation of the obligation of the police to hold off in their attempts to acquire evidence from the defendant.
[42] However, the fact that, apart from the response to Constable Alagarajah, none of the utterances between 3:05 p.m. and 9:35 p.m. were obtained in a manner that infringed the defendant’s rights is not the end of the admissibility issue. In my view, to permit the Crown to adduce any of the utterances that were made in the time period between his assertion of a desire to speak to a lawyer and the facilitation of that desire, 6½ hours later, would tend to render the trial unfair. The fact that the police may have been justified in delaying the defendant’s access to counsel upon his arrest does not mean that the prosecution has carte blanche to harvest any statements that the defendant made during the period of delay. In particular, to permit the Crown to adduce the statements that the defendant made at the time of booking and in his initial interaction with Detectives North and Patterson at 8:23 p.m. would undermine trial fairness. In that respect, I adopt what I said in analogous circumstances in R. v. Hector, 2014 ONSC 2037:
The fact that responses that a detainee has made to a booking sergeant were not obtained in a manner that infringed his rights under the Charter does not necessarily mean that to admit those responses in evidence would not give rise to Charter concerns. Had the booking sergeant been attempting to elicit evidence in relation to the offences, Mr. Hector's responses would clearly have been obtained in violation of s. 10(b). Notwithstanding the general duty to hold off that would otherwise have applied, the booking sergeant's questions are permitted because they are not aimed at acquiring evidence. To allow the responses to be used as evidence would overshoot the bounds of the permission, would offend the principle against self-incrimination, and would tend to render the trial unfair. In my view, the reasoning of Justice Moldaver in R. v. Milne (1996), 1996 508 (ON CA), 107 C.C.C. (3d) 118, at paragraphs 25 to 29, and Justice Doherty in R. v. Suberu, 2007 ONCA 60, at paragraph 61 (affirmed without reference to this point, 2009 SCC 33), provides support for this conclusion.
[43] Accordingly, I excluded all the statements that the defendant made in the interval between his arrest at 3:05 p.m. and his consultation with counsel at 9:35 p.m.
[44] I did not exclude the statements that the defendant made to Detectives North and Patterson in the two video-recorded interviews. As I stated earlier, I am satisfied that all the statements that the defendant made in those interviews were voluntary. Before the interviews began, the defendant had consulted duty counsel with the assistance of a Tamil interpreter and before proceeding with the interviews the detectives took time to ensure that the defendant understood that he had the right to consult with a lawyer of his choice and that if there was a particular lawyer he wished to speak to the detectives would facilitate contact. Detective North told him: “At any time during this interview if you want to speak to your lawyer or to another lawyer, we can stop everything and give you another lawyer”. The defendant responded: “I understand that.” They also inquired as to whether the defendant was satisfied with the advice he had received from duty counsel. The defendant made it clear that he was satisfied and that he did not wish to speak to any other lawyer. Only then did the interview proceed.
[45] In the circumstances, even if the delay between the defendant’s assertion of a desire to speak to counsel and the facilitation of that desire amounted to a violation of s. 10(b), I was satisfied that to admit the statements that the defendant made to Detectives North and Patterson after 11:19 p.m. would not bring the administration of justice into disrepute. In my view, the exclusion of all of the statements that the defendant made during the period of delay was an adequate remedy for that breach. It was also an adequate remedy for the infringement of s. 10(b) that was caused by Constable Alagarajah’s elicitation of a response at the conclusion of the caution that was provided to the defendant at the time of booking.
III. Conclusions
[46] Apart from the fragment of the conversation that Constable Kelloway overheard the defendant having with his son, the statements that the defendant was alleged to have made prior to his arrest were admitted into evidence, as were the statements made in the video-recorded interviews with Detectives North and Patterson. The statements that were made in the interval between the defendant’s arrest and the commencement of the video-recorded interviews were not admitted.
MacDonnell, J.
Released: May 12, 2021
[^1]: R. v. E.B., 2011 ONCA 194, at para. 88