REASONS ON MOTIONS TO ADMIT/EXCLUDE STATEMENTS

[1] At the outset of this trial the Crown sought to tender as evidence statements made by the accused in an interview with police shortly after his arrest on charges of accessing, possessing and distributing child pornography under ss. 263.1(4.1), (4) and (3) of the Criminal Code, and of attempting to obstruct justice under s. 139 of the Code.

[2] It is alleged that the accused, Edwin Subia, uploaded a child pornography image on Kik Messenger on June 10, 2019. Following an investigation, on September 11, 2019 the Toronto Police executed a search warrant on the accused’s residence. The accused’s phone was found submerged in the toilet tank of an upstairs washroom, which is the basis for the charge under s. 139 of the Code. The phone contains images alleged to be child pornography.

[3] Following his arrest on the morning of September 11, 2019, after the seizure of his phone, in the course of an interview with police officers the accused confirmed a sexual interest in children aged ten years old and younger and his interest in and having viewed child pornography images. He also provided the police with the password to his phone which allowed the police to access the content of the phone, including the images contained on it.

[4] The Crown sought a ruling regarding the voluntariness of this statement in order to lead it as part of its case to show the accused's knowledge and control of the child pornography images contained on his phone. The accused submitted that the statement was not provided voluntarily and therefore should not be admitted. The accused also submitted that his rights under ss. 7 and 10(b) of the Canadian Charter of Rights and Freedoms (the “Charter”), were breached and that his statement, and the evidence obtained as a result of the statement, which includes the images on his phone, should be excluded pursuant to s. 24(2) of the Charter.

[5] On consent, I heard the evidence and submissions relating to these two motions together. On October 4, 2021 I ruled the statements to be admissible, with reasons to follow. These are my reasons.

Factual background

[6] On June 17, 2019, a report was received by the National Child Exploitation Crime Centre (“NCECC”) that a user had uploaded an image of child pornography on Kik instant messaging. Following a police investigation which disclosed the image had been uploaded form an IP address at 39 Snowball Crescent in Scarborough, Ontario, on September 11, 2019, the Toronto Police executed a search warrant on that address, which is the accused’s residence.

[7] The police arrived at the accused’s home at 6:10am, identified themselves, and produced a copy of the warrant authorizing the search and seizure of electronic devices. They located Mr. Subia, who was partially dressed, and commenced a search of the residence. Mr. Subia was visibly upset and did not want to be near his family members. The officers put him in a separate room. It is clear that Mr. Subia knew why the search was occurring and was embarrassed by it.

[8] At 6:31am, Mr. Subia was arrested by Detective Earle Davies ("Det. Davies"), who was the officer in charge. Also present was DC Steven Mailer who knew Mr. Subia from a prior investigation involving possession of child pornography in 2015 and 2016. Mr. Subia also recognized DC Mailer during the search.

[9] In September 2019 Mr. Subia was 32 years old. He has a high school education and completed a diploma program on computers at a college. He has worked as a computer technician and as a security guard. He was unemployed in September 2019 and at the time of the trial. He has a prior conviction for possession of child pornography and served 3 months of a 6-month sentence in 2017.

[10] In a presentence report (“PSR”) prepared in 2016, it is noted that DC Mailer said he believed Mr. Subia “may have a slight mental disability.” DC Mailer has acknowledged that he expressed that view but stated at the preliminary inquiry in this matter in September 2020 that he believed Mr. Subia “may have a learning disability.” At this trial he said that his comment was about Mr. Subia’s “maturity level,” saying that he did not seem to have the maturity level of a 29 or 30 year old when he first met Mr. Subia. However, DC Mailer said that he did not think Mr. Subia was cognitively impaired. DC Mailer did not share these concerns with Det. Davies or anyone else in 2019 when Mr. Subia was arrested and interviewed.

[11] There is an audio recording of the arrest which was played in court on these motions. Mr. Subia was read his right to counsel by Det. Davies. Mr. Subia was alert when arrested, questioning Det. Davies when he thought he heard the officer say he was accused of “making” child pornography. He asked that his right to counsel be repeated, which Det. Davies did, and Mr. Subia indicated that he understood. When asked if he wished to call a lawyer at that time, Mr. Subia said he would do it “later,” as he was more concerned at the time about how the charges would affect his relationship with his mother, who also lived in the house and was downstairs with her husband and her other son, Mr. Subia’s brother.

[12] In response to the offer to call duty counsel, Mr. Subia asked what duty counsel was and Det. Davies responded that “Duty counsel's the free guys you talk to on the phone, and they'll be the free guys at court. We'll call them for you, okay? It's entirely up to you if you want to speak to somebody. You just have so say yes, I want a lawyer, no I do not want to talk to a lawyer.” When asked again if he wanted to call a lawyer, Mr. Subia said “Yeah, soon.”

[13] Both Det. Davies and DC Mailer testified that they believed Mr. Subia understood his right to counsel and the caution, and this is supported by the recording in which Mr Subia asks that it be read twice and by saying he wished to speak to a lawyer.

[14] At 7:10am, Mr. Subia was transferred to the custody of Police Constable Christian Seguin and Police Constable Zachariah Worona, who transported him to 42 Division. During the drive to the police station Mr. Subia was asked for his cell phone number by PC Worona. Mr. Subia asked why they needed it and was told that it was just for the arrest information. He did not provide his number. PC Seguin responded to Mr. Subia’s silence saying, sarcastically, “thanks for your cooperation.” PC Worona and PC Seguin were challenged on the purpose of this request, given the potential importance of a cellphone number to an investigation involving child pornography and the use of electronic devices in such cases. They insisted that this was simply information to complete the arrest form in the computer.

[15] The transport was uncomfortable for Mr. Subia, who was in handcuffs and complained when they were waiting in the police car for several minutes after arriving at the station.

[16] Mr. Subia was brought in for booking at 7:39am. He was asked whether he had any special mental or physical conditions which the police should be aware of while he was in custody. The accused responded that he was depressed the previous year, in 2018 when he had had suicidal thoughts.

[17] The booking officer, Sgt. Philip Lee, informed Mr. Subia that he could not have his glasses or shoelaces with him while he was alone in the interview room because he presented a safety concern. Mr. Subia expressed concern about having his glasses taken from him; he was told he would have them when he needed them, but not while he was alone in the room, and he appeared to accept that explanation. Nevertheless, in his testimony on these motions Mr. Subia said the loss of his glasses made him feel “panicky” and anxious.

[18] Mr. Subia was specifically asked by Sgt. Lee if he had any other medical conditions, or prescription medications. He said no. Sgt. Lee also explained to him the role of duty counsel in more detail, confirming that he was a lawyer, and that he would be given access to a phone to speak to duty counsel.

[19] The booking process was videotaped and the videotape was played on these motions. Mr. Subia acknowledged that he understood what was going on, and he certainly appeared to me to understand the process as well.

[20] By 8:16am Mr. Subia had spoken to duty counsel.

[21] At 8:49am, DC Mailer and Det. Davies commenced their interview with Mr. Subia. He was not re-cautioned or asked whether he had consulted counsel. The interview lasted until 10:37am. It was videotaped.

[22] During the interview, which I viewed on these motions, there was quite a bit of back and forth about Mr. Subia’s mental state, his addiction to pornography and his desire to get help, and of his mental health challenges. He appeared emotional and distraught at times. At one point he showed the officers marks on his wrist from when he tried to cut himself. DC Mailer expressed support for Mr. Subia’s desire to get help, stating more than once that Mr. Subia was still young and could get help. Det. Davies urged Mr. Subia to see a doctor and get counselling for his suicidal thoughts.

[23] The officers also engaged in some monologues about the downward “spiral” of looking at pornography, and child pornography in particular, to then engaging in sex acts with children. Det. Davies told Mr. Subia about a well-known case in Toronto several years ago involving the killing of a young girl, Holly Jones, by Michael Briere, who had previously only viewed child pornography.

[24] I found these monologues concerning as they seemed to stray well beyond the charges Mr. Subia was facing, and perhaps beyond the appropriate role and knowledge of the officers. I note that since the interview with Mr. Subia, Det. Davies has been admonished for using this approach in another case: R. v. Simpson, 2020 ONSC 7862 at paras 125 - 128. When confronted with that criticism in this case, Det. Davies said he no longer uses the story of Holly Jones.

[25] Det. Davies and DC Mailer pressed Mr. Subia several times on who he might have communicated with on Kik, a platform used by people who view and exchange child pornography. Mr. Subia referred to having spoken to duty counsel and then asked if he would get in more trouble if he helped them out. DC Mailer was clear that he could not give legal advice and that they would have “a duty obviously to investigate that and, uh, we would ... stop any conversation and let you speak to a lawyer again before we, uh, before we came back in and chatted.”

[26] Mr. Subia appeared to be engaged throughout the interview, and was cognizant of his right to not answer questions and to remain silent. When pressed on when he last used Kik he said he could not remember, nor did he give his username. He took his time when asked questions he did not want to answer, sometimes taking a sip of water before responding. When asked for names of others on Kik he said he could not remember usernames or conversations. Similarly, when asked about what else he had been seeing in chat groups, or “trends,” he said he could not remember.

[27] When it was suggested that he traded child pornography with someone on Kik Mr. Subia stated: “Um, I just gonna, um -, I just, I just gonna be silent on that.”

[28] When asked about chat rooms or websites Mr. Subia might have used other than KIK the following exchange occurred:

SUBIA: Um, you know what? Um, that one I'm gonna, I'm gonna use my, my rights.

DAVIES: Okay. How come?

SUBIA: Hmm?

DAVIES: How come you don't want to share?

SUBIA: I don't know just based on, um, duty counsel's advice.

[29] On a couple of occasions in the interview the officers referred to having Mr. Subia’s phone, although they had not accessed it. Early on Det. Davies told Mr. Subia that his phone and computer were with computer forensics, and later the officers expressed concern about what they might find on the phone. Mr. Subia told them there was nothing incriminating on his computer, which he was told had also been seized, but confirmed that there were images on the phone, though he did not answer when asked where on the phone.

[30] Det. Davies then asked for Mr. Subia’s password for the computer and Mr. Subia provided it. As he had encrypted material in 2015, DC Mailer asked if anything was encrypted and Mr. Subia said no. Det. Davies then asked for the phone password and Mr. Subia provided it.

[31] When asked during his testimony on these motions why he provided the phone password, Mr. Subia said he was panicking, “stressed-out” and his mind was wandering. He said it “slipped out.” In cross-examination, Mr. Subia agreed that the officers asked for it in a calm tone and did not say or do anything that suggested he had to provide it to them. When pressed on whether it “slipped out,” Mr Subia said that at that point he “wasn’t really thinking” and was “under stress.”

[32] The interview continued for several more minutes about Mr. Subia’s mental health, the harm caused by child pornography and what would happen next to Mr. Subia on that day and in the justice system.

[33] Towards the conclusion of the interview, Mr. Subia asked the officers about how much jail time he would get if he was convicted. PC Mailer responded that they couldn’t tell him, as it would be up to a judge. After expressing concern about his future, Det. Davies tried to reassure him that he still has a future and, after saying he needed to make an effort, Det. Davies said that “one of the first things you could do is to help us.”

[34] At the hearing of these motions Mr. Subia stated that he has diabetes, something also recorded in the PSR in 2016, which was prepared shortly after he was diagnosed with it. He said he normally takes insulin at 8am each morning and another prescription drug for his diabetes, metformin, after breakfast. He produced a prescription printout dated November 14, 2019, which is two months after his arrest, indicating prescriptions for these drugs as well as drugs for cholesterol and blood pressure.

[35] When asked why he did not tell the police he was diabetic and on prescription medications, Mr. Subia said he was under tremendous stress and anxiety and it did not occur to him. He testified that if he did not take the drugs or eat, his blood sugar level could drop and he could become hypoglycemic. He said that if he does not eat or take his insulin or metformin he can feel very tired, dizzy, and he loses interest in doing activities. Mr. Subia said that he felt “sweaty,” “nervous” and “panicky” during the interview. He also said he felt tired, “a little bit” dizzy as he felt “like his head was swelling up,” and he says he lost interest in the interview.

[36] At no time prior to the conclusion of the interview was Mr. Subia offered any food, or asked if he was hungry. He testified that he had last eaten at 7:00pm the previous evening, and that he had gone to sleep around midnight, so he had about 6 hours sleep.

[37] In cross-examination, Mr. Subia agreed that he had “type 2” diabetes which can be kept under control with exercise, diet, and taking better care of himself. He agreed that when under control he does not need insulin. When pressed on whether he had prescriptions for his diabetes in September 2019, Mr. Subia was firm that he had a prescription for metformin but could not recall if he had a prescription for insulin at the time.

[38] Mr. Subia agreed that during the booking process he was asked specifically about his health, including whether he took any prescription medications and was under a doctor’s care for anything. He also responded “yes” to whether he was in “overall good health.” Mr. Subia agreed that the police had no reason to suspect he was a diabetic or needed any medication.

[39] Mr. Subia also agreed that he was well-treated by DC Mailer and Det. Davies, and that they listened to him and responded to his concerns, such as moving him to a room separate from his family during the search.

[40] Mr. Subia acknowledged that he was familiar with the booking process at the police station, having been through it previously, and agreed he was treated courteously and with respect. Mr. Subia agreed that he did not raise any complaints about his treatment at the police station or about his access to legal advice.

Voluntariness

[41] The Crown seeks to rely on statements made by Mr. Subia in his interview with DC Mailer and Det. Davies. As those statements were made to “persons in authority,” the Crown must prove beyond a reasonable doubt that the statements were made voluntarily.

[42] The voluntariness rule was discussed by the Supreme Court of Canada in R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38, and was summarized in R. v. Spencer, [2007] I S.C.R. 500, 2007 SCC 11 at paras. 11-12 as follows:

At common law, statements made by an accused to a person in authority are inadmissible unless they are made voluntarily. This Court set out the test for ascertaining the voluntariness of such statements in Oickle. That case "recast the law relating to the voluntariness of confessions ... It rejected resort to fixed and narrow rules": D. M. Paciocco and L. Stuesser, The Law of Evidence (4th cd. 2005), at p. 290. As Iacobucci J. explained in Oickle, at para. 27, the rule "is concerned with voluntariness, broadly understood". He also emphasized that a contextual approach is required (at para. 47):

The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.

In Oickle, the Court recognized that there are several factors to consider in determining whether there is a reasonable doubt as to the voluntariness of a statement made to a person in authority, including the making of threats or promises, oppression, the operating mind doctrine and police trickery. Threats or promises, oppression and the operating mind doctrine are to be considered together and "should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule" (Oickle, at para. 63). On the other hand, the use of "police ... trickery" to obtain a confession "is a distinct inquiry ... [given that] its more specific objective is maintaining the integrity of the criminal justice system" (para. 65). [Emphasis added]

[43] Determining whether the Crown has proven voluntariness must be made having regard to all of the relevant facts, including being "sensitive to the particularities of the individual suspect"; Oickle at para. 42. The test, however, is an objective one.

[44] In R. v. Singh, [2007] 3 S.C.R. 405, 2007 SCC 48, at paras. 35-37, the Supreme Court recognized that the modern approach to voluntariness stated in Oickle involves considering whether a detained person had a "meaningful choice" whether or not to speak to the police or not. The detainee must have the ability to exercise his or her free will to choose whether to speak to the police. As put in Oickle, at para. 57, the issue is whether police conduct is such that it raises a reasonable doubt about whether “the will of the subject has been overborne.”

[45] The voluntariness rule stems from the concern that statements made involuntarily, whether as a result of threats, or promises, or inducements, or oppressive circumstances, or trickery, are not reliable. However, it also involves consideration of fairness and the protection of an accused’s rights in the criminal process: Oikle at para. 69; Singh, at para. 35.

[46] This does not mean, however, that the police cannot be persistent in their questioning of suspects and attempt to persuade them to speak. As Fairburn J. (as she then was) stated in R. v. Brown, 2015 ONSC 3301 at paras. 87 – 88

The contemporary voluntariness or confessions rule attempts to strike a balance between the interests of the accused and society in avoiding false confessions, while at the same time ensuring that the societal interest in the effective investigation of crime is met. As noted by Iacobucci J. in Oickle, at para. 33: “All who are involved in the administration of justice, but particularly courts applying the confessions rule, must never lose sight of either of these objectives.” See also: Singh, at para. 45.

Both the constitutional right to silence and the common law voluntariness rule permit a certain amount of police persistence and persuasion in obtaining a statement: R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64, at paras. 73, 110, 130 [Hebert]. While an individual has a right to remain silent, she does not have a right not to be spoken to by the police: Singh, at para. 28. Police persistence, and attempts to persuade an individual to speak, will not automatically transgress the s. 7 right to silence or the voluntariness rule. Indeed, Mr. Singh asserted his right to silence on 18 occasions, followed each time by further questions by the police and attempts to persuade him to speak. The majority concluded that this did not breach his right to silence or, as he conceded at trial, the voluntariness rule.

[47] Fairburn J. noted in the next paragraph that, where relevant, there are two stages to the inquiry: first, whether there were “inducements, such as promises or threats, sufficient to overcome the will of the accused,” which includes considering whether the individual had an “operating mind” and “whether there has been an atmosphere of oppression created by the police, sufficient to cast doubt on the voluntariness of the statement”; and second, if applicable, whether there was policy trickery in obtaining the statement and, if so, whether it would shock the conscience of the community.

[48] In this case only the first stage is relevant, as there is no suggestion of police trickery.

[49] In my view, the Crown has established beyond a reasonable doubt that the statements made by Mr. Subia were voluntary. Having heard the recording of his arrest and having viewed the videos of the booking and interview with Mr. Subia, it is clear that he was aware of what was happening and able to make choices whether to speak or not. Indeed, he made such choices – exercising his right to counsel immediately upon arrest, deciding not to give his cell phone number to the transporting officers, being careful in the almost 2-hour long interview in what he chose to respond to in the discussion and in which he was mindful of and invoked his right to remain silent several times, including two references to advice from duty counsel.

[50] The officers here made no threats, and offered no inducements, promises or hope of advantage to Mr. Subia. Although there may have been an implication that things would be better for Mr. Subia if he sought help for his apparent addiction to child pornography, this help was not offered by the officers who simply encouraged him to seek help later. Nor did Mr. Subia testify that he thought the officers were going to help him.

[51] When asked to name others Mr. Subia communicated with on Kik, or with whom he might have shared child pornography, the officers simply appealed to Mr. Subia to help them. There was no quid pro quo of any kind.

[52] Nor can I conclude that there was an atmosphere of oppression that could have overborne the will of Mr. Subia. The interview lasted less than two hours, and was commenced quite promptly after Mr. Subia’s arrest, booking, and his call with duty counsel.

[53] As I have noted, I am troubled by the officers’ descriptions of the downward “spiral” of looking at child pornography and the murder of a young girl in Toronto, which in my view were attempts to break down the will and resistance of Mr. Subia in order to get him to incriminate himself. This raises concerns as to the appropriate limits of the role of police in attempting to persuade a suspect to speak: see, e.g., R. v Brown, at paras. 93-94. I am skeptical of Det. Davies’ explanation that he was simply appealing to Mr. Subia’s conscience to disclose other participants, and not endeavouring to break him down emotionally so that he would incriminate himself in circumstances driven by emotion and thinking that he would be treated more favourably as a result. However, in this case I am satisfied that those techniques were not so oppressive that they played a role in Mr. Subia’s choices of when he wished to speak and respond to the officers. The stories were told, discussed, and then they moved on, seeming to confirm the observation in Oickle, at para. 56, that moral inducements will rarely produce an involuntary confession. I note as well that in R. v. Simpson, although Quigley J. criticized Det. Davies’ use of the Holly Jones’ story, he also concluded that there was no oppression sufficient to raise a reasonable doubt about voluntariness.

[54] Mr. Subia, as I have noted, is not uneducated. He has worked in the computer field. His interactions with the police demonstrated that he would speak up for himself when he wished to do so, and also made choices as to what information he was willing to provide to the police. He spoke relatively openly about some issues and not about others. He was also familiar with the arrest process, having been through it a few years earlier.

[55] I have also considered the fact that DC Mailer had previously told a probation officer that he believed that Mr. Subia “may have a slight mental disability,” and that he did not advise others about this on the morning of Mr. Subia’s arrest. While it would have been preferable to have told his fellow officers of his concern, DC Mailer is not an expert on mental disabilities and his comment a few years earlier was vague and speculative. As the Supreme Court confirmed in Oickle at para. 63, quoting Sopinka J. in R. Whittle, 1994 CanLII 55 (SCC), [1994] 2 SCR 914 at p. 936, the operating mind requirement “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment.” As I have noted, Mr. Subia understood what was happening to him, he understood his rights, and he was able to make choices as to what to say or not. Moreover, there is no evidence of any mental disability. Having considered all the circumstances, I am satisfied beyond a reasonable doubt that he had an operating mind at the time.

[56] As to being tired and hungry, I cannot give this much weight. Although woken shortly after 6:00am, Mr. Subia had at least 6 hours sleep that night. He did not say he was tired or ask for breaks, nor did he ever say he was hungry. While it is unfortunate that no one asked Mr. Subia if he was hungry, by the conclusion of the interview he had only been detained for approximately 4 hours. This is not a case like R. v. Alexis-McLymont, 2017 ONSC 6150, or R. v Strong, 2021 ONSC 231, in which lack of sleep and lack of nourishment went on for many hours.

[57] Mr. Subia failed to tell the officers of his diabetes or of any prescription medications he required despite being specifically asked. Further, as noted, he produced no prescriptions from the time of his arrest and, in cross-examination, could not recall if he had a prescription for insulin at the time. In these circumstances it seems his diabetes was not affecting him; otherwise, Mr. Subia would have spoken up.

[58] The defence argues that Mr Subia’s failure to speak up about his diabetes is indicative of the fact that he was not thinking clearly; however, his actions and responses suggested to me that he was in control of himself and able to focus on, and appreciate, his situation.

[59] Having viewed the video, I have no doubt that at times Mr. Subia was anxious, nervous and distraught. However, that is not surprising; anyone in Mr. Subia’s position might display those emotions, but at all times he appeared to be in control of himself and was able to make choices on what he said. He spoke openly about his mental health and his past experience in jail, and somewhat openly about his addiction to pornography and his sexual preferences, but he denied using certain platforms, said nothing about using Kik and invoked his rights when he wished.

[60] Having regard to all the circumstances, the Crown has satisfied me, beyond a reasonable doubt, that Mr. Subia’s statements were made voluntarily.

Sections 7 and 10(b) of the Charter

[61] The defence argued that Mr. Subia’s rights under ss. 7 and 10(b) of the Charter were breached in a number of ways on the morning of his arrest. Section 7 of the Charter has been held to include the right of a detained person to remain silent: R. v. Singh at para. 27. Section 10(b) provides that “[e]veryone has the right on arrest or detention…to retain and instruct counsel without delay and to be informed of that right.” The burden is on the accused to establish a breach of his rights on a balance of probabilities.

[62] In my view, Mr. Subia’s rights were respected and complied with upon his arrest and throughout the morning of September 11, 2019.

[63] Dealing first with s. 7, although one has the right to silence, the Supreme Court has made clear that this “does not mean, however, that a person has the right not to be spoken to by state authorities”: R. v. Singh at paras. 27 -28. The real issue, then, is whether Mr. Subia’s right to remain silent was breached by either speaking involuntarily, which I have concluded he did not, or by the police breaching his right to counsel under s. 10(b).

[64] Upon his arrest Mr. Subia was read his rights not once, but twice, after he asked that they be repeated. He said he understood, and he clearly did, as he remained silent thereafter, including in the police car when asked for his cell phone number.

[65] Although Det. Davies might have been clearer in his description of duty counsel, Mr. Subia was given another explanation from Sgt. Lee when he was booked into the police station. No special circumstances arose to suggest that Mr. Subia did not understand his rights during the booking process; indeed, he confirmed again that he understood them. While Mr. Subia advised Sgt. Lee of being depressed and having suicidal thoughts in the past, he said he had not been under the care of a doctor, and he identified no other medical conditions or needs when asked. Mr. Subia was alert and demonstrated an understanding of what was going on. Therefore, there was no added onus on the police to take more precautions to ensure Mr. Subia understood his rights.

[66] Mr. Subia was put in touch with duty counsel shortly after his arrival at the police station and spoke to him or her. There is no evidence from Mr. Subia that he was in any way limited or dissatisfied with the advice he received, which he could have addressed having chosen to testify on these motions.

[67] DC Mailer and Det. Davies did not readvise him of his rights at the outset of the interview, but nor were they required to do so. By this time as well, Mr. Subia had spoken to duty counsel. During the interview he demonstrated in his conduct, and explicitly, that he understood he did not have to speak to the police. I have already addressed above the statement by DC Mailer in Mr. Subia’s PSR and why it does not create special circumstances to be more cautious than the officers were in this case.

[68] I have also addressed, in my discussion of voluntariness, the issue of DC Mailer’s reference to his belief that Mr. Subia “may have a slight mental disability,” something on which there is no other evidence. While s. 10(b) provides that a detainee must be given an opportunity to obtain legal advice, this right, combined with the right to remain silent under s. 7 of the Charter, is intended to ensure that a suspect knows he or she has a choice of whether to cooperate or not (see, e.g., R. v. Sinclair at para. 25, quoting R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 SCR 151 at pp. 176-77). In this case, it is clear that Mr. Subia was well aware of that choice throughout his detention on the morning of September 11, 2019.

[69] The defence cited three specific instances in which it was alleged that the right to counsel in s. 10(b) of the Charter was breached. I address each below.

[70] First, it was argued that the request for Mr. Subia’s cell phone number in the transport breached the duty to “hold off” questioning once a detainee asserts his or her right to counsel. As stated in R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 SCR 236, at para 35:

As this Court has stated on a number of occasions, s. 10(b) imposes both informational and implementational duties on state authorities who arrest or detain a person. (See Bartle, at pp. 192-94; R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at pp. 1241-42; R. v. Evans, 1991 CanLII 98 )SCC), [1991] 1 S.C.R. 869, at p. 890; Brydges, at pp. 203-4.) Once a detainee has indicated a desire to exercise his or her right to counsel, the state is required to provide him or her with a reasonable opportunity in which to do so. In addition, state agents must refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel. As the majority indicated in R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3, at p. 12, once a detainee asserts his or her right to counsel, the police cannot in any way compel him or her to make a decision or participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until that person has had a reasonable opportunity to exercise that right. In other words, the police are obliged to "hold off" from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel. [Emphasis added]

[71] At the time the police sought Mr. Subia’s cell phone number, he had asserted his right to counsel and the police were obliged to “hold off.” I have reviewed the evidence on this above. Although the request is troubling in the context of the charges against Mr. Subia, I cannot conclude that the officers were seeking the cell phone number for an investigative purpose or “otherwise attempting to elicit evidence” as described by Lamer J. (as he then was) in R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 SCR 1233 at para. 23; and see R. v. Dupe, 2010 ONSC 6594, at paras. 23-25. In any event, as noted, Mr. Subia challenged their request and did not provide his phone number, indicating that he was cognizant of his rights.[^1]

[72] Second, the defence argued that Mr. Subia ought to have been advised of his right to counsel again when DC Mailer started questioning him on his sexual history and when he was asked about discussions he had with others on Kik, seeking names of others that the police might investigate.

[73] One question DC Mailer put to Mr. Subia was whether he was “still a virgin.” It was argued that this was a question seeking to elicit information about other sexual offences. I do not agree; in context, it was stated as a confirmation of what Mr. Subia had just said - that he had never had a partner. As for seeking information about others on Kik, when that was raised Mr. Subia asked whether, if he were to help the police, he would get into more trouble. DC Mailer told him that he could not give legal advice and explained that if Mr. Subia started telling him about anything that could lead to further charges, such as sexual abuse of a child, then they “would stop any conversation and let you speak to a lawyer again.” However, he clarified that all they were seeking at this point was who he had spoken to on Kik.

[74] The defence also argued that by asking him these questions, together with the monologues about the “spiral” and Holly Jones, the police were moving beyond the charges Mr. Subia was facing, into offences specifically committed on children. It was submitted that this change in direction, and potential change in Mr. Subia’s jeopardy, required the officers to restate his right to counsel. As stated in R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 SCR 869, at para. 42, “the police must restate the accused's right to counsel when there is a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the warning.” On the other hand, however, McLachlin J. (as she then was) also noted that the police “in the course of an exploratory investigation, must reiterate the right to counsel every time that the investigation touches on a different offence.” See also R. v. Sinclair, 2010 SCC 35, [2010] 2 SCR 310 at para. 51.

[75] In my view, questioning Mr. Subia on who else he might have communicated with on Kik did not cross the line to require a restatement of his rights, nor did the monologues. As DC Mailer explained, they were only seeking names of others, which related to his current charges, and, as DC Mailer correctly stated, if Mr. Subia had started talking about more serious offences they would stop and let him speak to a lawyer again. There was, therefore, no breach of s. 10(b) of the Charter.

[76] Third, the defence argued that the request for Mr Subia’s computer and cell phone passwords required a restatement of his rights. This is based on the Supreme Court’s decision in R. v. Sinclair, 2010 SCC 35, [2010] 2 SCR 310, at para. 50, in which the Court stated:

The initial advice of legal counsel will be geared to the expectation that the police will seek to question the detainee. Non-routine procedures, like participation in a line-up or submitting to a polygraph, will not generally fall within the expectation of the advising lawyer at the time of the initial consultation. It follows that to fulfill the purpose of s. 10(b) of providing the detainee with the information necessary to making a meaningful choice about whether to cooperate in these new procedures, further advice from counsel is necessary: R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3. [Emphasis added]

[77] The defence submitted that a request for a cellphone password is a “non-routine” procedure which engages significant privacy interests. In R. v. Azonwanna, 2020 ONSC 5416, at para. 156, Copeland J. found, “in the circumstances of that case,” that the request for the accused’s cell phone password should have been accompanied by a further opportunity to consult with counsel. Copeland J. stated as follows at para. 157:

I come to the conclusion that the police asking for a cell phone password is a type of non-routine procedure that imposes a duty on the police to offer a detainee a further opportunity to consult with counsel for two reasons: first, the high privacy interest in the type of information that most people routinely keep on their electronic devices; and second, that providing a cell phone password conscripts a detainee to provide evidence against himself in circumstances where the police could not obtain evidence of similar quality without the participation of the detainee.

[78] The facts of Azonwanna were quite different from this case. It involved other breaches of s. 10(b) by the police, a very significant inducement, and poor treatment of the accused. In addition, at the time of the questioning, no warrant had been obtained to search Mr. Azonwanna’s phone, in which there is a high privacy interest: see, e.g., R. v. Fearon, [2014] 3 S.C.R. 621, 2014 SCC 77, at paras. 50-52.

[79] The facts of this case, however, and my view of the law, lead me to a different conclusion.

[80] In this case the privacy interests of Mr. Subia in his phone were already addressed in the obtaining of a search warrant which authorized the seizure of his phone and access to its contents based on an officer’s reasonable and probable grounds that it contained child pornography. That search warrant was upheld on a pretrial motion by Boucher J. in a ruling dated May 13, 2021. While at least at the time of seizure in September 2019 the police could not access Mr. Subia’s phone without the password, this does not mean that asking for the password raised the same degree of privacy interests as seizing the phone.[^2]

[81] Mr. Subia was aware that the police had a search warrant and had seized his phone and his computer pursuant to it. He demonstrated an awareness of the importance of his phone when he refused to provide the number for it to the transporting officers in the police car. In light of the charges he was facing, one would expect that the contents of the phone and access to it would come up in Mr. Subia’s discussion with duty counsel. Even if Mr. Subia did not receive specific advice on accessing the phone or responding to questions about it, he did receive advice relating to these charges which were focused on what was on his phone. As I have noted, at no time did Mr. Subia raise any issue about inadequate legal advice when he was detained.

[82] In my view, questions about Mr. Subia’s phone, including what was on it and how it could be accessed, were questions that could be expected in his circumstances, and were not “non-routine procedures” such as asking an accused person to participate in a line-up or to take a polygraph test. The police did not ask Mr. Subia to take any physical steps that could incriminate him; they simply asked him questions which, in the context of this case, one would expect to be “within the expectation of the advising lawyer at the time of the initial consultation,” as stated in R. v. Sinclair. These were questions that Mr. Subia knew he did not have to answer, as he made clear in his interview, and were questions central to the charges Mr. Subia was facing.

[83] Although, as Copeland J. stated in Azonwanna, the provision of the password led to “the obtaining of evidence against themself of significantly stronger value than what would be available to the police without the detainee’s participation,” this is usually the case when an accused provides an inculpatory statement or information about an offence. Comparisons can be made to asking for the combination for a safe, a bank account number, an address, or a door code. The participation, however, is from the routine procedure of asking the detainee questions, not a “non-routine procedure” as contemplated in Sinclair.

[84] The Court of Appeal has addressed this issue recently in R. v. Tahmasebi, 2020 ONCA 47. This decision was released after Justice Copeland made her ruling in Azonwanna, although before she released her reasons. As a result, it would not have been referred to her by counsel, and the decision was not cited in Copeland J.’s reasons. Tahmasebi dealt with a drug evaluation demand by a police drug recognition expert (a “DRE demand”) in an investigation of charges of impaired driving causing bodily harm. The DRE demand, which sought a urine sample, was made after the accused had spoken to duty counsel.

[85] Quoting the Supreme Court in Sinclair at para. 65 (para. 20 of Tahmasebi), “[w]hat is required is a change in circumstances that suggests that the choice faced by the accused has been significantly altered, requiring further advice on the new situation, in order to fulfill the purpose of s. 10(b) of providing the accused with legal advice relevant to the choice of whether to cooperate with the police investigation or not.” Applying this principle, Zarnett J.A. concluded at para. 30 of Tahmasebi that there was “no basis here to reach the conclusion that the initial advice the appellant received, after being charged with impaired driving, was not sufficient and correct to address the foreseeable consequences of that charge, namely a DRE demand and depending upon its result, an oral fluid or urine sample demand.”

[86] In my view, the holding in R. v. Tahmasebi, which went further than this case in demanding the accused take additional steps, supports my conclusion. Mr. Subia was not asked to do anything other than answer relevant and reasonably expected questions about the charges he was facing, for which he had already received legal advice.

Conclusion

[87] In light of my finding that there was no breach of Mr. Subia’s right under sections 7 and 10(b) of the Charter, there is no need to consider whether evidence should be excluded under s. 24(2) of the Charter. As the Crown has also established that the statements of Mr. Subia to DC Mailer and Det. Davies were voluntary, the evidence is admissible.

Paul B. Schabas J.

Released: October 6, 2021

COURT FILE NO.: CR-20-30000364

DATE: 20211006

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

EDWIN SUBIA

REASONS ON MOTIONS TO ADMIT/EXCLUDE STATEMENTS

Schabas J.

Released: October 6, 2021

[^1]: I observe, parenthetically, that had there been breach of the duty to hold off, as no evidence was obtained there would be nothing to exclude under s. 24(2), assuming the seriousness of the breach warranted it.

[^2]: A police expert witness, DC Sushil Saini, testified that by December 2020 the police had the ability to access the contents of the phone without using the password.

R. v. Subia, 2021 ONSC 6628

Case Summary

REASONS ON MOTIONS TO ADMIT/EXCLUDE STATEMENTS

Factual background

Voluntariness

Sections 7 and 10(b) of the Charter

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 5

Legal Tests 2

Legislation 2