COURT FILE NO.: CR-17-452
DATE: 20210729
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Michael Morris, for the Crown
- and -
FRANK O’DEA
L. Kurt Wildman, for Mr. O’Dea
HEARD: May 20-21, 25-28, 31 and June 1-2, 2021
REASONS FOR CHARTER and VOLUNTARINESS RULINGS
BALTMAN J
Introduction
[1] Shortly before midnight on April 20, 2015, Frank O’Dea called 911 to report that his 21-month old daughter, Victoria, had stopped breathing. When police and paramedics were unable to revive her, she was transported to Brampton Civic Hospital. Within minutes of arrival she was pronounced dead. The stated cause of death was extreme dehydration and malnutrition. As a result, Mr. O’Dea was ultimately charged with manslaughter and criminal negligence causing death.
[2] On April 21, Mr. O’Dea participated in two separate interviews with police at 22 Division. The first interview, with Constable Colp (“the Colp statement”), was approximately five hours long. Roughly three hours later, he was further interviewed by Detective Paul Quashie (“the Quashie statement”). That interview lasted over two hours. Both interviews were audio and video recorded.
[3] During both interviews Mr. O’Dea maintained his innocence, insisting that he had nourished and cared for Victoria diligently throughout her life. The Crown nonetheless seeks to rely on the statements as part of its case at trial, which is proceeding before me without a jury. The Crown asserts that while the statements are exculpatory, they are fabricated, and therefore support an inference of guilt.
[4] Mr. O’Dea alleges that the Crown has failed to establish either statement as voluntary. He further claims that police breached his rights under the Canadian Charter of Rights and Freedoms during both interviews, in particular ss. 9, 10(a) and 10(b).[^1] [^2] More specifically, Mr. O’Dea alleges that:
Constable Colp breached s. 10(a) at the outset of the interview, by failing to articulate the reasons for his detention;
Colp’s breach of 10(a) resulted in an arbitrary detention, thereby breaching s. 9;
When Mr. O’Dea’s jeopardy increased later in the interview, Colp breached s. 10(b) by “defaulting” to duty counsel rather than offering counsel of choice;
Colp breached s. 10(b) by failing to permit Mr. O’Dea a further consultation with counsel when police demanded his clothing; and
Detective Quashie breached s. 10(b) by failing to hold off questioning to permit Mr. O’Dea to speak with his counsel of choice.
[5] Of those five allegations, the defence classified #1 and #5 as the most significant breaches. The defence did not call any evidence on the voir dire.
[6] In this case the entirety of both statements was captured on videotape. They comprise approximately eight hours. The complete videos were played in court and I have watched them carefully. They helped to convey the general arc of the interviews and captured certain dynamics that are not available in the transcript.
[7] On June 9, 2021, I advised counsel that, for reasons to follow, I concluded the following:
a) Mr. O’Dea’s Charter application is dismissed;
b) The Crown’s voluntariness application for the statements to both Colp and Quashie is allowed. The statements are admissible as voluntary.
[8] These are my reasons. They contain several extracts from Mr. O’Dea’s interactions with the police. Unless otherwise indicated, all page references are to the transcripts of the Colp or Quashie statements, depending on the context. Any emphases in the quoted segments have been added by me.
Factual Overview
Background
[9] At the time of Victoria’s death Mr. O’Dea was 42 years old. He was a single parent and a “stay at home Dad” and received social assistance. He and Victoria resided in the basement apartment of a house in Brampton. His relationship with Victoria’s mother (Hilary Ashton) was acrimonious and at the time of her death the parents were in the midst of contentious legal proceedings, with a family court appearance scheduled that day (April 21).
[10] Mr. O’Dea also had a 19-year-old daughter from a previous relationship, and other family members (parents, etc.) who resided within the Central West region of Ontario.
Prelude and Drive to the Police Station
[11] After Mr. O’Dea contacted 911, several police officers attended his home, followed shortly by ambulance and fire services. The police officers included Constable Colp, Detective Bettes, Constable Allwyn and Sergeant Jones. Colp and Bettes immediately attempted to resuscitate Victoria. Allwyn spoke with Mr. O’Dea in order to gather any “lifesaving” or other information about Victoria’s medical history that could be passed on to the paramedics, who arrived within minutes of the police. Jones remained outside the house, controlling the perimeter. After the paramedics left to transport Victoria to the hospital, Allwyn stayed with Mr. O’Dea in his apartment. Colp and Bettes headed to the hospital.
[12] Jones was notified that Victoria had passed away at approximately 1:00 a.m. Shortly after, he shared that information with Mr. O’Dea. Allwyn then drove Mr. O’Dea to 22 Division, advising that he was to be interviewed for “more information about what had happened”. Mr. O’Dea was very cooperative. Allwyn and Mr. O’Dea arrived at 22 Division at approximately 1:40 a.m. Upon their arrival Allwyn left Mr. O’Dea sitting in the front lobby of the station, unaccompanied and unsupervised. Allwyn testified that at that point Mr. O’Dea was neither detained nor under arrest, otherwise someone would have been with him the entire time. There is no evidence that Mr. O’Dea perceived himself as detained at that point.
Preliminary Discussions regarding Rights and Liabilities
[13] At 1:52 a.m. Mr. O’Dea was escorted to an interview room for questioning. Colp entered the room at 1:55 a.m. and introduced himself to Mr. O’Dea as a Constable working with the Peel Regional Police Criminal Investigation Bureau. Mr. O’Dea indicated that he recognized Colp as one of the officers who had attended his home earlier that night. Colp confirmed that Mr. O’Dea was aware that his daughter had passed away. He then advised Mr. O’Dea that the doctors at the hospital had concerns regarding Victoria’s condition, which the police needed to look into:
Q. Sir, we were at the, uh – at the hospital, and given the circumstances, there was some concerns…
A. Okay.
Q. …um, with the condition of your – your daughter. And the doctor had some concerns, and there’s some things…
A. Okay.
Q. …things that we need to look into. And what I want you to understand is we need to look into these things to be fair to you…
A. Okay.
Q. …to be fair to your daughter.
A. Yeah, yeah. Absolutely.
Q. …and you – you can understand why the police get involved; okay?
A. Okay. Sure, yeah, yeah.
[Emphasis added.]
[14] Colp then advised Mr. O’Dea that he needed to review certain things to respect Mr. O’Dea’s “right” as an individual. He explained it was “procedural”, and that police “need to protect” Mr. O’Dea. He then outlined Mr. O’Dea’s rights, as follows:
Q. So, I just gotta read off a few things for ya…
A. Okay.
Q….okay? Um, and just like I said, it’s just basically what – there’s some concerns that the doctors have, and we need to address that as well as…
Okay.
Q. …as police officers, okay? So, I’m gonna read you a few things…
A. Okay.
Q. …okay? Thank you. You have the right to retain instruct counsel without delay.
A. Okay.
Q. You have the right to telephone any lawyer you wish.
A. Okay.
Q. You also have the right to free legal aid advice.
A. Okay.
Q. If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for assistance.
A. Okay.
[Emphasis added.]
[15] When asked whether he wished to call a lawyer “now”, Mr. O’Dea queried whether he was being charged “right now”, and was told he was “not being charged right now”. Shortly after, the following exchange occurred:
A. Well, you guys are asking to meet me, I should call duty counsel or something. Maybe I should.
Q. It – it’s –it’s totally up to you. You’re an adult…
A. Yeah.
Q. …and you’re definitely entitled to make those decisions.
A. Okay. Well, you said you have some concerns, I don’t know what they are, but, um, yeah, maybe I should talk to someone before I say anything.
Q. So you’d like to –to –okay. ‘Kay. And just for that – and if you are charged, uh, with an offence, you don’t have to say anything in answer to it.
A. Okay. Yeah.
Q. Any information we speak about, okay?
A. All right.
Q. You do not have to say anything. You are not obliged to say anything unless you want to do so.
A. Yeah.
Q. Whatever you say may be given as evidence. Do you understand that?
A. Okay. Yeah.
Q. If you have spoken to any other officer or to anyone with authority, or in such – or to any such person has spoken to you in a connection with this case, I want it clearly understood that I do not want what they said to influence you…
A. Okay.
Q. …in making any statement to me. Do you understand that?
A. Okay. Yeah.
Q. So, you’d like to – for us to call duty counsel for you right now?
A. Yeah, maybe I should. Maybe I’ll call ‘em.
Q. I – will do that for ya.
[Emphasis added].
[16] Police then contacted duty counsel and shortly after 2:00 a.m. Mr. O’Dea spoke for 30 minutes with a lawyer. When Colp re-entered the interview room, Mr. O’Dea informed him that he had been advised by duty counsel to “have a lawyer present” before he answered any questions. Colp responded that “that’s your right to how you wanna handle things.”
[17] Mr. O’Dea then freely began conversing with Colp, stating he “still can’t fathom” what happened to Victoria. Their conversation went through five phases.
Phase 1: Substantive Discussion about Mr. O’Dea’s parenting
[18] From 2:43 a.m. to 3:15 a.m. Colp and Mr. O’Dea discussed various aspects of Mr. O’Dea’s domestic life and parenting history. When Colp inquired whether Mr. O’Dea was married to Victoria’s mother, Mr. O’Dea launched into a long tirade against Ms. Ashton and her involvement in drugs, heavy drinking and the Hells Angels, repeatedly asserting that she was an unfit mother. He relayed to Colp advice he had received from his cousin, an RCMP officer, about the “really bad people” surrounding Ms. Ashton.
[19] Colp and Mr. O’Dea then discussed Victoria’s condition over the past few days. Mr. O’Dea explained that although Victoria seemed “a little under the weather” recently, and had discomfort from teething, there was no warning that anything was seriously wrong: it “all happened so freakin’ fast.” He pointed out that having already raised a 19-year-old daughter, “this is not my first rodeo.”
Phase 2: Change in Jeopardy
[20] At approximately 3:20 a.m., after an update from the homicide team regarding doctors’ concerns, Colp advised Mr. O’Dea that further information “has now changed the jeopardy” of his situation, and he was now being investigated for “murder and criminal negligence causing death of your child.” When Mr. O’Dea asked “what was the negligence”, Colp advised it related to the “neglect” of Victoria.
[21] Colp then offered Mr. O’Dea a further opportunity to speak with counsel, which he accepted. In response to Mr. O’Dea’s query as to what caused Victoria’s death, Colp responded that police didn’t know that yet.
[22] Mr. O’Dea spoke with a second duty counsel from 3:33 to 3:38 a.m. The interview did not resume until 4:30 a.m. because Colp was meeting with the homicide team. When Colp re-entered the interview room, Mr. O’Dea advised him that he’d been told by the lawyer that he was not under arrest. Colp confirmed that was true.
[23] Then, after reporting that duty counsel had instructed him not to speak to the police, Mr. O’Dea proceeded to do just that:
A. …I have nothin’ to hide but, like I said, I was warned just to wait ‘til I have a lawyer present for, you know.
Q. Mm-kay. And – and that’s…
A. And not to divulge any more information.
Q. Okay.
A. But pretty much everything I told you is what happened.
Q. Yeah.
A. Like, you know, and I mean you look in the past – I mean you can look in the last couple years. I’ve had custody of her and – then there’s, like, literally hundreds of people – I mean, we’re talkin’ people that work for – for Canada Post. Ah, we’re talkin’ Toronto Police Officers. You know, people, you know, that know – like, my parents. Like, my family. Like, ah, you know, it’s – the doctor’s seen her and, like, she’s – she was always a very healthy little baby.
[Emphasis added.]
[24] Mr. O’Dea then produced numerous photographs of Victoria on his phone, dating from December 2014 to February 2015, to show how healthy she was. After more discussion about Victoria’s medical history, Mr. O’Dea then provided Colp with further unsolicited details regarding Ms. Ashton’s shortcomings as a mother and her propensity to violence.
[25] Colp then queried Mr. O’Dea regarding his financial circumstances. In the midst of that discussion Colp explained that he was asking Mr. O’Dea questions both as an investigator and as a father. The following exchange then occurred:
Q. Frank, you can understand, again, like, ah, I – I—I think I’ve been fair with you.
A. Okay.
Q. Te--, correct me if I haven’t at all. Like, have I been fair with you?
A. You’ve been fair, yeah.
[26] Further discussion followed regarding Victoria’s health and eating habits, with Mr. O’Dea advising that Victoria generally has a “great appetite” but was “off her game” the day before. Then Mr. O’Dea very quickly became annoyed with Colp’s questions. From approximately 4:30 a.m. to 5:10 a.m., he pushed back, and repeatedly referenced the advice duty counsel had given him:
- “You’re not gonna get me to slip up”; (p. 71)
- “You’re startin’ to piss me off”; (p. 72)
- “I’m gonna listen to the lawyer now because…I’m not talkin’ to you guys anymore if – ‘til I have a lawyer present”; (p. 73)
- “the rest of our conversation is either with a lawyer present” (p. 76)
- “if you’re chargin’ me, charge me” (p. 78)
- “the lawyers told me what you were gonna do” (p. 84)
- “either we’re gonna have a lawyer here with me right now. I have nothing to say to you anymore.” (p. 88)
- “Either you charge me or you’re not. What’s goin’ on here?” (p. 89)
[27] Towards the end of this section, he threatened to sue the police (p. 88) and twice called Colp a “smug prick” (p. 90). He told Colp he was done talking with him and asked, for the first time, to speak with lawyer Susan von Achten.
Phase 3: The Demand for Mr. O’Dea’s clothing
[28] After a 15-minute break Colp advised Mr. O’Dea that they needed his clothing in order to test it for substances from Victoria’s vomit. Mr. O’Dea objected. There was further discussion about the investigation, and efforts were made to get Ms. von Achten’s contact number. Mr. O’Dea stated he wished to speak with a lawyer before turning over his clothing. Colp reminded him that he spoken to two lawyers already. Mr. O’Dea again referred to the advice he received from both duty counsel to not say anything to the police:
- “There was two different lawyers that talked to me and they both said the same thing…they strictly told me ‘Don’t say anything’…” (p. 107-8)
- “I was told…by all costs not to talk to you guys at all…” (p. 120)
- “I’m doing what…two lawyers told me already twice now not to do” (p. 123)
[29] After a further 10-minute break Colp advised Mr. O’Dea that police were “gonna have to go to the… arrest stage to get the clothing”. Mr. O’Dea complained that he still wanted to talk to a lawyer and continued to resist handing over his clothing.
Phase 4: The Arrest
[30] At 6:20 a.m. Colp arrested Mr. O’Dea for murder and criminal negligence causing death. After again being given his rights to counsel, Mr. O’Dea asked “You can’t get a hold of Susan von Achten?”. Colp advised they had not been able to locate her but would try again. At 6:30 a.m. Colp advised him they still had not located Ms. von Achten (through the internet or otherwise) and therefore had called duty counsel again for him. At 6:50 a.m. Mr. O’Dea spoke with duty counsel for ten minutes. He then left the room and later returned wearing a police-issued jumpsuit. At 7:30 a.m. he was escorted out of the room.
[31] Around this time Colp’s shift ended and his role was taken over by Detective Quashie, who arrived at the station at 7:00 a.m. After he attended the residence and was briefed by the homicide team, Quashie resumed efforts to locate Ms. von Achten. He then entered the interview room to speak with Mr. O’Dea.
Phase 5: The Statement to Quashie
[32] This meeting began at 10:40 a.m. Quashie did not reread to Mr. O’Dea his rights to counsel or caution him. He reminded Mr. O’Dea that the room was audio and videotaped. He told Mr. O’Dea that he was “not obligated” to speak with him and confirmed that Mr. O’Dea had already spoken with duty counsel. O’Dea replied that duty counsel was “useless”. Quashie confirmed that Mr. O’Dea wished to speak with Ms. von Achten. He spoke about continuing attempts to locate Ms. von Achten, including unsuccessful Google searches, and asked Mr. O’Dea if he knew how to locate her. In response, Mr. O’Dea offered nothing regarding Ms. von Achten’s location but embarked, without prompting, on another harangue about Ms. Ashton and her dangerous associates. When Quashie asked Mr. O’Dea if there was “anybody else” police could contact if Ms. von Achten could not be located, Mr. O’Dea responded “I have no idea.”
[33] Quashie left the room and approximately 30 minutes later (at 11:15 a.m.) returned to advise they had located a phone number for Ms. von Achten and left a message for her to call the station. In the conversation that followed, he also repeatedly cautioned Mr. O’Dea to wait until he spoke with counsel:
Q. Um, we can still – we can still make all the, uh, attempts.
A. If you could do that…
Q. …at this point in time…
A. …I would love to just to talk to her because she…
Q. Okay.
A. You know, like, I – I just – the –the situation right now, like, I mean, my head’s just…
Q. Okay. So you’d rather speak to her before you speak to me?
A. Uh, yeah.
Q. Okay.
A. Well, I mean, you can talk to me and, you know…
Q. Well, I’m gonna ask you some – I’m gonna ask you some specific questions.
A. Okay.
Q. I mean – but I need you to understand…
A. Okay.
Q. …your rights as you – as you understand them…
A. Mm-hmm.
Q. …is that you do not have to speak to me. If you wanna speak to counsel, you can speak to counsel.
A. Okay.
Q. Um, I told you the attempts that we’ve made.
A. Yeah.
Q. Um, I can go out and have somebody, uh, try and, you know, research her name a bit more and come back and talk to you, or I can – I can cease and desist…
A. If you could do that I would – I would…
Q. Okay.
A. …really appreciate that.
Q. So, you’d – what, you’d rather do that and tell – an…
A. Yeah.
Q. …I’ll come back and talk to you after you’ve talked to her?
A. Yeah. Absolutely.
A. Yeah, like, I – I’d like to talk to her, see what she’s got to say.
Q. Okay.
A. ‘Cause, like – like you said, I’m not --- this – this –
Q. I understand. And I can’t talk to you about that. Now that you’ve expressed your wishes to speak to Susan.
A. Okay.
Q. …um, we’ll make as many attempts as we can.
A. Okay.
Q. Um, if we’re unsuccessful, I’ll come back and let you know we’re unsuccessful. Can you give us some indication as where we might find her?
A. Uh…
Q. I think you said a downtown…
A. …I do – I now – I just, uh, I was literally down in Etobicoke before I moved up to Innisfil to get the child away from the mother, who was an alcoholic and just the people she’s involved with.
Q. Again – again, I don’t wanna talk about that until…
[Emphasis added.]
[34] At this point, ignoring Quashie’s admonition, Mr. O’Dea embarked on a three-page detour regarding Ms. Ashton’s violent behavior and how the judge presiding over their family law dispute sided with him. When he stopped, the following conversation ensued:
Q. So, we’ll make the attempts. You believe [Ms. von Achten] is at a downtown law firm?
A. Yeah.
Q. Okay. So, um, give me an opportunity to – to, uh, have an officer try and research her.
[Emphasis added.]
[35] Then, after Mr. O’Dea explained how Ms. von Achten was different from “a lot of the dirt bag lawyers” out there, the two men had the following exchange:
Q. Okay. If we’re unsuccessful finding – getting contact with her, is there anybody else we can contact?
A. I have no idea. Like, I mean…
Q. No.
A. …I never thought this – this…
Q. We never – we never prepare for anything like this.
A. Yeah.
Q. But, uh, uh, I just want you to understand that you have…
A. I never thought in a million years I’d be charged…
Q. Yeah.
A. …for something that I would never do, none, to…
Q. Okay. That’s what I wanna talk to you about after.
A. Okay.
Q. Uh, if you – if you wish to speak with me. Okay. So, let me –give – give me that opportunity.
A. Okay.
Q. I’m gonna leave you in here for a few minutes; okay.
A. All right.
Q. And then I’ll let you know in about 20 minutes, us, where – what our progress is; okay.
A. All right.
[Emphasis added.]
[36] Approximately 30 minutes later, after bringing Mr. O’Dea some water, Quashie reported to him that he had located a phone number for Ms. von Achten and left a message: “I’m just waiting for the call back”. Quashie then moved to exit the room but was interrupted by Mr. O’Dea, who began to speak about Victoria’s food and liquid consumption in recent days, and how she had been teething a lot recently. Mr. O’Dea continued in that vein over the next three minutes. When Mr. O’Dea advised that Victoria had become “very red” from teething, Quashie asked a few questions about how that symptom manifested. However, he then again attempted to deflect the conversation until later:
Q. You can give me all this background, all this history, that’ll be perfect.
A. Yeah.
Q. Just – but just after you’ve spoken to your counsel.
A. Okay.
Q. All right. I’d love to sit down and chat with you, but…
[Emphasis added.]
[37] Undeterred, Mr. O’Dea continued to discuss Victoria’s condition and fluid intake. Quashie merely acknowledged his comments by saying “Okay”. Throughout the entirety of this segment Quashie was standing near the door. At several points he moved to exit the room but was interrupted by Mr. O’Dea offering further unsolicited information. Finally, Quashie stated “We’ll talk all about it”, and left the room.
[38] Shortly before noon Quashie returned and summarized the various efforts that had been made to reach Ms. von Achten, without success. He reminded Mr. O’Dea “you don’t have to talk to me”. He then indicated that because they would be taking Mr. O’Dea to court shortly, he would like to speak with him “as long as you understand your jeopardy.” Mr. O’Dea then immediately entered into a long, nearly unbroken monologue detailing his dedication as a father, Victoria’s physical condition and food consumption in recent days, and her sudden deterioration the night before. At the conclusion, when Quashie asked him “Do you mind if I ask you a few questions?”, he replied “okay” and then answered Quashie’s questions fully and readily.
[39] Shortly after 1:00 p.m. Quashie was advised that Ms. von Achten had called. Mr. O’Dea then had a private conversation with Ms. von Achten for approximately 20 minutes. After he hung up the interview ended.
Analysis
1. The Charter Challenge
Did Colp breach s. 10(a) by failing to state the reasons for detention?
[40] Section 10(a) of the Charter provides detained persons the right to be informed promptly of the reason for their detention. The purpose of s. 10(a) is to inform the detainee of the extent of their jeopardy so that they can meaningfully exercise their right to counsel under s. 10(b): R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at pp. 886-887. The focus is on what the accused would reasonably have understood, not the precise wording used by the police. Police are not required to identify the specific charges they may ultimately face. Rather, they must give the accused “information that is sufficiently clear and simple to enable them to understand the reason for their detention and the extent of their jeopardy”: R. v. Roberts, 2018 ONCA 411, at para. 78. As the Supreme Court stated in Evans, at p. 888:
When considering whether there has been a breach of s. 10(a) of the Charter, it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b). [Emphasis added.]
[41] Mr. O’Dea maintains that he did not understand his jeopardy from the outset, and therefore could not exercise his right to counsel in any meaningful way. While Colp agreed that O’Dea was effectively being detained from the moment he entered the interview room, Colp never told him that. Moreover, Colp used soft, indirect language, merely stating that the doctors had “concerns” about his daughter’s “condition” that police “need to look into”. They should have used clearer words, like “neglect”, “mistreatment”, “suspicious” and “criminal”. Because of that he did not appreciate what was at stake here.
[42] I reject that assertion. It is fanciful to suggest that O’Dea did not know why the police wanted to talk to him – or what his jeopardy was - for several reasons.
[43] First, his daughter’s demise was not a surprise to him. He called 911 and then watched police and paramedics try to resuscitate his daughter. The unrefuted evidence from Colp and Bettes is that when they first saw Victoria in the apartment she appeared “lifeless”. Her face was “grey, gaunt and sunken”, and she looked “undernourished and emaciated”, with her “ribs visible”. Mr. O’Dea knew when Victoria could not be revived she was taken to the hospital, where she was pronounced deceased. Now he is being told that the doctors have “concerns” about her “condition” that police “need to look into.” He was the sole caregiver and the only other person at home when Victoria stopped breathing, meaning she died under his watch. Anyone of at least average intelligence – which Mr. O’Dea clearly is – would easily conclude that they are being considered as potentially responsible for Victoria’s death, at least in some fashion. Indeed, he confirmed to Colp that he understood why the police were now involved.
[44] Second, Colp was the same officer who had been in his living room just two hours earlier, urgently trying to revive Victoria. O’Dea clearly recognized him: at the outset of the interview, when Colp said “You seen me at your house earlier today”, O’Dea answered “Yes, yes.” This reinforces the link between what the police found when they first arrived at the home and the “concerns” they now wish to review with him.
[45] Third, in his testimony Colp accurately described this as a very “fluid”, developing situation. Victoria was pronounced deceased shortly after midnight. Colp began the interview just before 2:00 a.m., less than two hours later. The investigation was at a preliminary stage and police were still gathering information from the coroner. They knew there were concerns about neglect but understandably did not wish, at that early stage, to make allegations beyond that without some foundation.
[46] Importantly, the police here were not initially called upon because of any criminal concerns, but as back up for a medical emergency. When Mr. O’Dea called 911, and was asked whether he needed “police, fire or ambulance”, he responded that he needed “an ambulance right away.” Because the emergency was a “baby not breathing”, it was given a priority response, with a three-tiered dispatch of police, ambulance and fire. Colp’s undisputed evidence is that police were dispatched to Mr. O’Dea’s home solely as a “medical assist”. It was only after Victoria was pronounced deceased, and the coroner began to investigate, that it became a criminal concern.
[47] This case can easily be distinguished from R. v. Carter and Dodd, 2012 ONSC 94, which Mr. O’Dea relied upon significantly. In Carter police deliberately misled the accused about his jeopardy. While Mr. Carter was in custody for possession of narcotics and stolen property, police interviewed and told him he was a suspect in a missing persons investigation. He was subsequently arrested for murder. Pomerance J. found that the police deliberately concealed from Mr. Carter that he was a suspect in a murder investigation. Information used to obtain search warrants and wiretap authorizations suggested that the police knew full well that they were investigating a homicide, and therefore were obliged to inform him of that.
[48] By contrast, there is no evidence here that police engaged in a deliberate strategy to mislead Mr. O’Dea, or that they even ought to have known, at this early stage, that the investigation would be focused on criminal negligence and manslaughter.
[49] A better parallel can be drawn with the case of R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217. The appellant was charged with the murder of his daughter, who was severely disabled and required constant care. The Supreme Court held that s. 10(a) was not breached due to a failure to inform the appellant that he had been arrested and could be charged with murder. In coming to this decision, the Court stated the following at para. 31:
On the facts of this case, I have no doubt that the trial judge was right in finding that Mr. Latimer understood the basis for his apprehension by the police and hence the extent of his jeopardy. He knew that his daughter had died, and that he was being detained for investigation into that death. Constable Lyons prefaced his comments in the car by saying “what I am about to say has very serious consequences”. Mr. Latimer was then informed of his right to counsel and his right to silence, which clearly conveyed that he was being placed under arrest. Finally, he was told that he could not go into his own house by himself to change his clothes. It is clear on these facts that Mr. Latimer knew that he was in an extremely grave situation as regards his daughter’s death, and that s. 10(a) cannot be said to have been violated. [Emphasis added]
[50] As the Supreme Court noted in para. 28 of Latimer, the purpose of s. 10(a) is to ensure that a person understands generally the jeopardy in which they find themselves. Before speaking with Mr. O’Dea, Colp identified himself as a Constable with the Peel Regional Police Criminal Investigation Bureau. He proceeded to ask Mr. O’Dea whether he was aware of the circumstances and passing of his daughter, to which Mr. O’Dea replied that he was. Colp then informed Mr. O’Dea that the doctors had some concerns regarding the condition of his daughter, and that police needed to look into those concerns. Colp proceeded to read Mr. O’Dea his rights to counsel. Mr. O’Dea asked Colp if he was being charged. Colp advised Mr. O’Dea that he was not being charged “right now”.
[51] Colp advised Mr. O’Dea that he was not obliged to say anything, and whatever he said could be given as evidence. Mr. O’Dea responded that he understood. Mr. O’Dea asked to speak with duty counsel and consulted with duty counsel before giving a statement.
[52] In my view, Mr. O’Dea was given sufficient information by Colp to allow him to make informed choices. He knew that his daughter had passed and that the doctors were concerned about her condition. He was made aware that the police were looking into those concerns. He was told that he was not being charged “right now”. He was read his rights to counsel and told he did not have to say anything to police.
[53] I also reject counsel’s suggestion that Mr. O’Dea did not know he was being detained. Counsel relies on Mr. O’Dea’s comment later in the session with Colp where, when asked to hand over the clothing he was wearing, O’Dea suggests waiting until later because “[y]ou’re gonna have to drop me off at home anyways”. Counsel argues this suggests he thought he was free to leave.
[54] That does not accord with reality. As Mr. O’Dea went on to note a few seconds later, the police had not charged him yet. Consequently, at that point he was correct to think that once they were done with him, they owed him a ride home. That does not in any way mean he thought he could leave without their permission. The reasonable inference is to the contrary. Moreover, Mr. O’Dea bears the burden of proof on this application, and he has not identified anything in the statements themselves or in the Crown’s other evidence to support his position.
[55] I find that Mr. O’Dea comprehended his jeopardy throughout. There was no breach of s. 10(a).
Did Colp breach s. 9 by arbitrarily detaining Mr. O’Dea?
[56] Section 9 of the Charter stipulates that everyone has the right not to be arbitrarily detained or imprisoned. The premise underlying this alleged breach is that Mr. O’Dea’s detention was arbitrary because he was not told the reasons for the detention, as required under s. 10(a). As Mr. O’Dea’s counsel put it, the s. 9 allegation “piggybacks” on a breach of s. 10(a). As I have found that Mr. O’Dea understood the reasons for his detention and therefore no breach of s. 10(a) occurred, it follows that the detention was not arbitrary, and therefore the s. 9 allegation falls as well.
Did Colp breach s. 10(b) by “defaulting” to duty counsel when Mr. O’Dea’s jeopardy changed?
[57] Section 10(b) stipulates that a detainee has the right to retain and instruct counsel without delay, and to be informed of that right. If the investigation takes a new and more serious turn, the detainee’s jeopardy may have increased and therefore he must be given a further opportunity to consult with counsel and obtain advice on the new situation: R. v. Sinclair, 2010 SCC 35, at para. 51.
[58] As noted above, approximately one hour and 20 minutes after the interview began, Colp advised Mr. O’Dea that, based on additional information police had received, he was now being investigated for murder and criminal negligence causing death. Although Colp immediately made it clear that Mr. O’Dea could consult with counsel again, Mr. O’Dea argues that Colp breached s. 10(b) by “defaulting” to duty counsel rather than offering counsel of choice.
[59] I disagree. The pertinent exchange is as follows:
Q. ...remember all those rights that you and I spoke about earlier.
A. Yes.
Q. You – you do remember that?
A. Yeah.
Q. I gave you your rights to counsel.
A. Yeah.
Q. A phone number to call duty counsel.
A. Mm-kay, yeah.
Q. Um, you had the opportunity to speak with a lawyer at that time – or duty counsel, right?
A. Yes.
Q. So you can speak with a lawyer, okay, and you can talk to that lawyer again with the way things have changed. Would ya like me to go over all your rights again?
A. So you’re charging me for murder?
Q. Would you like to speak to a lawyer again?
A. Yes, I would, yes.
Q. Mm-kay. I’ll make that phone call for ya.
A. Okay.
Q. So everything’s gonna be the same as those rights that I read and you still understand those rights that I had read to you.
A. Okay, but what is the cause of death?
[Emphasis added.]
[60] I do not agree with defence counsel that Mr. O’Dea was “shunted” toward duty counsel. He was reminded that he previously had the choice to speak with a lawyer “or” with duty counsel, and that those “same” rights remained. The previous transaction, where Mr. O’Dea elected to speak to duty counsel, had occurred just over an hour earlier. Although Colp did not expressly confirm that Mr. O’Dea wanted duty counsel again, that is a reasonable inference from the conversation that followed at that juncture, and Mr. O’Dea has not identified any evidence on this application to the contrary.
Did Colp breach s. 10(b) by failing to permit Mr. O’Dea a further consultation with counsel when police demanded his clothing?
[61] As the Supreme Court observed at para. 50 of Sinclair, when a new, non-routine procedure is instigated with a detainee, further advice from counsel is required. As examples of such new procedures, Sinclair identifies participation in a line-up or submitting to a polygraph. Although neither of those measures was being pursued in this case, I accept that the police demand for Mr. O’Dea’s clothing falls within this category, as it too has the potential for generating incriminating evidence.
[62] While I agree that the call to counsel at this juncture was delayed, it was nonetheless provided to Mr. O’Dea before he was forced to surrender his clothing. At 6:50 p.m., after police had been attempting unsuccessfully for nearly an hour to locate Ms. von Achten, they placed a call to duty counsel. This was the third phone call Mr. O’Dea had with duty counsel. Only after Mr. O’Dea ended the call did police proceed to take his clothing.
[63] Although arguably police could have waited until further attempts had been made to reach Ms. von Achten before seizing the clothing, nothing of any consequence was found on his clothing and Mr. O’Dea has not brought any application under s. 8. Consequently, to the extent a breach occurred, it was an error in timing and had no effect whatsoever on Mr. O’Dea’s rights.
Did Quashie breach s. 10(b) by failing to hold off questioning to permit Mr. O’Dea to speak with counsel of choice?
[64] It is undisputed that when Quashie began his interview he knew that Mr. O’Dea had asked to consult with Ms. von Achten. Mr. O’Dea asserts that Quashie therefore had a duty to hold off questioning him until reasonable efforts had been made to locate Ms. von Achten.
[65] Where detainees elect to speak with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If their chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole. If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended: R. v. Willier, 2010 SCC 37, at para. 35.
[66] I find that the officers made reasonable efforts to facilitate Mr. O’Dea’s access to counsel of choice. This included:
- Google searches for Ms. von Achten;
- Providing Mr. O’Dea with a lawyer’s directory (which he searched through extensively, without success);
- Asking Mr. O’Dea if he knew how or where Ms. von Achten might be located;
- Contacting Ms. von Achten’s last known law office;
- Sending text messages to a contact number they eventually received; and
- Asking Mr. O’Dea if there was any other lawyer he wished to speak to instead.
[67] Moreover, Mr. O’Dea has not advanced any evidence whatsoever on this application to suggest that if police had taken other, specific measures they could have located Ms. von Achten any faster than they did. There is no evidence before the court that she was even in active practice at this time.
[68] Mr. O’Dea asserts that even if police had used reasonable efforts to locate Ms. von Achten, before proceeding to question him they were obliged to issue a “Prosper” warning to the effect that they must postpone questioning until such efforts had been made. Without that, he was unable to validly waive his right before speaking further.
[69] As our Supreme Court observed in Willier, the additional safeguard of a Prosper warning “is warranted when a detainee indicates an intent to forego s. 10(b)’s protections in their entirety, ensuring that any choice to do so is fully informed”, at para. 38 (emphasis added). In Prosper, the detainee ceded any opportunity to confer with legal counsel.
[70] More recently, the Ontario Court of Appeal reinforced that a Prosper warning is needed only where a detainee has asserted the right to counsel and then apparently changed their mind and decided to talk after reasonable efforts to contact counsel have been frustrated: R. v. Kamal, 2020 ONCA 213, at para. 4.
[71] The circumstances of this case are very different. First, by the time Quashie began his interview, Mr. O’Dea had already spoken to three separate duty counsel (two before his arrest and one immediately after). At para. 33 of R. v. Singh, 2007 SCC 48, the Supreme Court observed that if a detainee has exercised his s. 10 Charter right to counsel, he “will presumably have been informed of his right to remain silent”.
[72] Not only is it reasonable to infer that counsel conveyed the standard advice not to divulge anything to the police, Mr. O’Dea repeatedly confirmed to police that each lawyer he spoke to instructed him not to talk to them (see para. 28, above).
[73] Second, while Mr. O’Dea described all three duty counsel that he spoke to as “useless”, beyond that generic label he provided no specific basis for police to conclude that the advice he received was inadequate. Unless a detainee reasonably and diligently indicates that the advice they received is inadequate, police are entitled to proceed with the interview. Certainly, police cannot be expected to monitor or inquire into the quality of the advice once contact is made, as that would interfere with the privileged nature of the relationship: Willier, at paras. 41-42.
[74] Third, by the time Mr. O’Dea began speaking to Quashie about anything of substance, Quashie had repeatedly tried – and failed - to pause him. Again, that is highly consistent with his pattern throughout his detention: irrespective of any advice given to stop talking, Mr. O’Dea persisted.
[75] To summarize: a) Mr. O’Dea spoke to three lawyers for a total of 45 minutes; b) he was told repeatedly not to speak to the police; and c) police attempted to locate Ms. von Achten through numerous channels over the course of several hours. For those reasons I conclude that police made reasonable efforts to facilitate Mr. O’Dea’s counsel of choice and did not prematurely move on to questioning him.
[76] Alternatively, if I am incorrect and police in fact breached Mr. O’Dea’s rights under s 10(b), I would not exclude the evidence under s. 24(2). Applying the three-pronged approach set out by the Supreme Court in R. v. Grant, 2009 SCC 32, at para. 71, I find the Charter-offending conduct was moderate, at worst. Together Colp and Quashie made numerous, sincere and prolonged attempts to locate Ms. von Achten. Moreover, Quashie repeatedly reminded Mr. O’Dea to wait for her. It was only after significant time had passed and he had emphasized to Mr. O’Dea that he must understand his jeopardy that he put any questions to him. This factor favours inclusion.
[77] On the second prong, I am easily satisfied that the breach had no real impact on Mr. O’Dea’s Charter-protected interests. In R. v. Harper, 1994 CanLII 68 (SCC), [1994] 3 S.C.R. 343, the Supreme Court held that despite a 10(b) violation, the accused’s statement should not be excluded under s. 24(2) because he appeared to have “an almost irresistible desire to confess”. The accused would not have acted any differently even without a violation of his rights: at pp. 353-354.
[78] Similarly, I am convinced, to a very high degree of certainty, that any alleged Charter violations did not affect Mr. O’Dea’s behavior whatsoever. Throughout both interviews he demonstrated a compulsive and relentless need to talk. He repeatedly interrupted, rerouted or took over the conversation.
[79] It was also clear from the outset he had his own agenda, in particular: a) painting Ms. Ashton as a dangerous and unfit mother; b) establishing himself as a diligent and caring father; and c) emphasizing that until the last day or two Victoria was healthy and well, repeatedly stating “there were no signs there” and “it all happened so freakin’ fast”, or words to that effect. From watching and listening to the videos, it is evident that short of physically gagging him, Mr. O’Dea would not be stopped. This factor strongly favours inclusion of the statement.
[80] Finally, on the third prong, society has a strong interest in adjudication of this case on the merits. While the statement is exculpatory and its exclusion would not be fatal to the Crown’s case, the investigation into a child’s death should be of high priority in a civil society. On balance this factor favours inclusion.
[81] In sum, as all three factors favour inclusion of the statement, I find it should be admitted.
2. The Voluntariness Challenge
The Legal Framework
[82] An accused person’s statement to a person in authority is presumptively inadmissible. The burden is on the Crown to establish beyond a reasonable doubt that the statement was made voluntarily.
[83] There is a significant body of jurisprudence from the Supreme Court of Canada setting out the legal principles that govern voluntariness, including: R. v. Oickle, 2000 SCC 38, R. v. Spencer, 2007 SCC 11, and Singh. The focus is on the conduct of the police and its effect on the accused’s ability to exercise their free will. The relevant factors include the use of any explicit or implicit threats, promises or inducements by the police; the conditions under which the statement was made and whether they were oppressive in nature; whether the accused had an operating mind at the time of the statement; and the use of police tactics or trickery that would shock the community.
[84] Importantly, these inquiries are highly fact-specific and contextual. Because of the wide range of circumstances that come before the courts, judges should resist hard and fast rules and instead consider all the relevant factors unique to the case before them: Oickle, at para. 47. In particular, in each case the court must consider both conduct and effect. Hence the Supreme Court’s statement in Singh, at para. 36, that on the question of voluntariness, the focus is on the conduct of the police and its effect on the suspect’s ability to exercise their free will. While the test is an objective one, it must take into account the individual characteristics of the accused.
Analysis
[85] In both videos Mr. O’Dea comes across as assertive and highly focused. At no point is his will overborne or his mind unfocussed. Moreover, Mr. O’Dea is not young, naïve or impressionable. He was in his early forties, reasonably well spoken and of at least average intelligence.
[86] While the defence does not allege any specific threats or suggest that Mr. O’Dea lacked an operating mind, it does raise concerns about the length of the interview and the physical circumstances Mr. O’Dea faced.
[87] Mr. O’Dea was in custody for over 12 hours. I agree it was a long and taxing experience for him. The interview began after midnight and continued into the afternoon of the next day, and he probably had not eaten since some time before his arrest. Moreover, his daughter had just died. Undoubtedly it a was highly stressful situation. There are a few junctures where, when left alone in the room, he is seen crying and holding his head.
[88] However, from watching and listening to the videos he appeared alert and responsive, and showed no significant signs of fatigue. He was offered water regularly and it was provided promptly when requested.
[89] At a few points during the early part of the interview with Quashie Mr. O’Dea is clearly experiencing back pain. He stands and stretches out his back, and sighs or groans in discomfort. The discomfort seems to have been triggered by the hard surface that he was lying on in the cell, in between the first and second statement. However, it appeared to be relieved by stretching and he did not request any medical attention. More significantly, it did nothing whatsoever to dampen his determination to present his case; within minutes of mentioning the back pain he launched into a near five-page monologue about Victoria’s food intake and physical condition over the past few days. This is consistent with his bearing throughout both interviews: resolute, persistent, and highly alert.
[90] For all those reasons, I am satisfied beyond a reasonable doubt that the conditions were not unduly oppressive, and that Mr. O’Dea possessed an operating mind throughout both interviews.
Conclusion
[91] I conclude as follows:
a) Mr. O’Dea’s Charter application is dismissed;
b) The Crown’s voluntariness application for the statements to both Colp and Quashie are allowed. The statements are admissible as voluntary.
Baltman J.
Released: July 29, 2021
[^1]: The defence did not provide advance notice of the application as required under the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, s. 27.04. However, the Crown did not object to it proceeding and I agreed that it could.
[^2]: Although Mr. O’Dea also alleged a violation of s. 7 of the Charter, he agreed that was subsumed within the Crown’s voluntariness motion.