Court File and Parties

Court File No.: CR-21-70000-372 Date: 2022-03-22 Ontario Superior Court of Justice

Between: Her Majesty The Queen And: Connor Madison

Counsel: Simon Heeney, for the Crown Selwyn Pieters, for Connor Madison

Heard: March 8-9, 2022

Reasons for Ruling

M. Dambrot J.:

[1] Connor Madison is being tried by me, with a jury, on an indictment in which he is charged with the second degree murder of Stephon Knights-Roberts. Mr. Knights-Roberts was stabbed to death at about 11:30 p.m. on June 25, 2020, in a public park near 280 Wellesley Street East in Toronto.

[2] This ruling concerns the admissibility of a post-arrest statement made by the accused to the police. The Crown brought an application for an order permitting the Crown to adduce the statement at trial for the purposes of cross-examination only on the basis that it was voluntarily made. The accused brought an application to exclude the statement under s. 24(2) of the Canadian Charter of Rights and Freedoms on the basis that the statement was taken in a manner that violated the accused’s right to instruct counsel without delay protected by s. 10(b) of the Charter.

[3] The applications were heard together in a blended voir dire. In the Crown’s application, the onus is on the Crown to establish that the statement was voluntarily made. In the accused’s application, the onus is on the accused to establish that there was a violation of s. 10(b) of the Charter and that the admission of the statement in evidence would bring the administration of justice into disrepute. Regardless of the onus of proof, the Crown adduced all of the evidence directly related to the arrest of the accused and the taking of the statement.

The Evidence

Arrest

[4] On June 25, 2020, at about 11:30 p.m., the accused stabbed and killed the deceased. He then made his way to a nearby apartment where he had been staying. On June 27, 2020, shortly after 2:00 a.m., the accused left the apartment carrying camping equipment. Some of the events leading up to the stabbing, and the stabbing itself, were captured on video.

[5] On June 29, 2020, at 3:29 p.m., D.C. Mantifel, a Property Crime Unit officer in the Georgina detachment of the York Regional Police, was provided with a photograph of the accused and received information that he was wanted in Toronto for second degree murder and might be in the area of 21080 Dalton Road in the Town of Georgina. D.C. Mantifel made his way to that location along with his partner, D.C. Hunter, and observed the accused walking towards apartment 101 at that address. The accused was not wearing a shirt or a face mask. D.C. Mantifel asked the accused to identify himself and, at 3:31 p.m., he advised the accused that he was under arrest for second degree murder and conducted a search of his person.

[6] D.C. Hunter then advised the accused again that he was under arrest for second degree murder, cautioned him and advised him of his right to retain and instruct counsel. The accused confirmed that he understood. D.C. Hunter then asked him if he wished to call a lawyer “now”, and the accused replied that he wanted to speak to Selwyn Pieters, who was his lawyer. The officers and the accused then waited in a parking lot for a vehicle to arrive to transport the accused to Toronto. D.C. Mantifel obtained a hoodie for the accused from an occupant of the apartment that the accused was approaching when he was arrested. While they were waiting, the accused was permitted to smoke a cigarette. When the vehicle arrived, the accused was placed inside it and told that everything in the vehicle would be audio and video recorded.

[7] The arresting officers did not give the accused the opportunity to contact his counsel at that time. D.C. Mantifel explained that it was not possible to provide the accused with privacy at the roadside or in the police car given the seriousness of the charge and how little he knew of the alleged offence or the accused.

[8] In his interaction with the accused, D.C. Mantifel noticed no signs of impairment or intoxication, and nothing gave him any concern about the accused’s ability to understand what he was told. The accused did not complain to him of a head injury.

Transportation

[9] P.C. Case of the York Regional Police arrived at the scene of the arrest at 3:34 p.m. and transported the accused to 51 Division in Toronto. Before P.C. Case and the accused left the scene, P.C. Case cautioned the accused and advised him of his right to counsel. In response, the accused asked where the alleged offence had occurred and said that he wanted to speak to Selwyn Pieters. P.C. Case did not provide the accused with access to his counsel while in the vehicle because it was not possible to provide him with privacy.

[10] P.C. Case drove directly to Toronto and arrived at 51 Division at 4:40 p.m. There was very little conversation between the officer and the accused. The accused asked about the circumstances of the case against him, but the officer knew nothing about it and told him nothing. P.C. Case noticed no signs of the accused being impaired or intoxicated, and no smell of alcohol. The accused did not complain to him of a head injury and did not sleep on the way to 51 Division. The entirety of the officer’s interaction with the accused in the vehicle was recorded by an in-car camera system.

When the officer arrived at 51 Division, he drove into a sally port, loosened Mr. Madison’s handcuffs, briefed a Toronto homicide officer about the arrest and took the accused into the station’s booking area.

Booking

[11] Det. Sgt. Redman was the officer in charge of the station and the booking officer on June 29, 2020. The accused was paraded before her, and she handled his booking. The booking process is video and audio recorded. It began at 5:06 p.m. and ended at 5:48 p.m.

[12] When the accused arrived in the booking room, D.C. Case provided the particulars of the arrest to Det. Sgt. Redman and also advised her that the accused had requested an opportunity to speak to counsel. Det. Sgt. Redman asked the accused to identify himself and then asked him a series of standard booking questions. When he gave his address, he said that he was living away from his mother to protect her from COVID-19.

[13] Det. Sgt. Redman ascertained that the accused knew what he was charged with, understood his right to counsel, and confirmed with him that he wanted to speak to his lawyer, whom he identified as Selwyn Pieters. She advised him that he would be afforded reasonable use of the telephone after being booked.

[14] Det. Sgt. Redman then asked the accused if he had any injuries. He indicated that he had hit his head on some rocks the previous day and knocked himself out but that he had not gone to see a doctor. Det. Sgt. Redman took a close look at his scalp, which was closely cropped, and was unable to see any visible mark. She also asked the accused if he had any medical issues. He said that he had circulatory problems and addiction issues and took mood stabilizers and muscle relaxants. When asked about recent drug and alcohol use, he reported that he used 3 grams of cocaine the previous night, as well as Percodan and another drug, and another half gram of cocaine that morning. He said that these were usual amounts for him and did not cause him medical issues. He also said that he drank about four 26-ounce bottles of whiskey and countless beers prior to his arrest, which was also a very regular amount for him. Alcohol sometimes caused him to black out and have seizures when he withdraws but, he said, he was “pretty sober right now”. He also said that he had a problem with seizures when he doesn’t eat and drink. When asked about suicidal thoughts, he said that he has had them historically, but he had no such thoughts at that time.

[15] Overall, the accused was cooperative during the booking process, was somewhat talkative and joked with the officers. He did not appear to be nervous or intimidated. Det. Sgt. Redman said that she had no concerns about the accused understanding her questions and that his answers to her questions were coherent and made sense. She said that the accused appeared sober, that he did not smell of alcohol, that his pupils seemed normal and that his speech was not slurred. She had no concerns regarding his sobriety or health at that time.

[16] Det. Sgt. Redman considered submitting an injury report for the accused but decided against it. She did not believe that he was injured. Based on her experience, she did not believe that someone could hit their head on rocks hard enough to knock themselves out yet have no visible mark on their scalp. If she had thought that he was injured, she would have had paramedics check him out. She also did not believe that he could have consumed the impossible amount of alcohol he claimed to have consumed and have no residual effects. I agree with her assessment of both issues.

[17] The accused was then searched in a private room, which had audio recording equipment but no video equipment. Before he left the booking area for the search, the accused, obviously being aware that his belt was going to be taken away from him, removed it himself with considerable ease despite being handcuffed.

[18] After the search, he was returned to the booking officer. His property was examined, listed and placed in bags. It included $4,076.00 in small bills that were carefully counted and placed under seal.

[19] In the course of the booking procedure, Det. Sgt. Redman screened the accused for COVID-19.

[20] I note that Det. Sgt. Redman wore a mask, but no one else in the booking room did. Although it was not yet mandatory at the time, she began wearing one as a matter of personal choice. She said that all Toronto police officers had to successfully complete electronic COVID-19 screening before coming to work and that they were required to screen accused persons before bringing them into a police station. In this case, she screened the accused in the booking area because the arresting officers were members of a different police force, she did not know their procedures and she did not know if they had screened the accused.

[21] At 5:48 p.m., when the booking process was completed, the accused was taken to interview room 5, which is located in the cell area of the station. He remained there until 6:25 p.m. when homicide detectives had their first interaction with him.

First Interaction with Homicide Officers

[22] At 6:25 p.m., Det. Sgt. Henkel, the homicide officer in charge of this investigation, entered interview room 5 where the accused was located along with Det. Sgt. Thornton of the Homicide Squad and D.C. Ferreira, who had carriage of separate assault and uttering threats charges that were outstanding against the accused. This interaction was audio recorded and ended at 6:29 p.m.

[23] Det. Sgt. Thornton read the charge and the right to counsel to the accused once again. The accused advised her that he understood and asked to call his counsel. Det. Sgt. Thornton agreed to accommodate his request and asked him if he was hungry. He said that he was, and she arranged for food and beverage to be brought to him. D.C. Ferreira then told him the nature of the assault and uttering threats charges. The accused said that he knew what the murder charge was about but not the assault and threat charges. Before the officers left, Det. Sgt. Henkel advised him that after he spoke to counsel a Forensic Investigative Services (“FIS”) officer would be in to see him and that the interaction would also be audio recorded. The officers then left to allow the accused to call counsel in private. Meanwhile Det. Sgt. Henkel obtained a sandwich and juice for the accused and arranged to have it delivered to him in interview room 5, following which he could call his counsel.

The Accused’s Telephone Call with Counsel

[24] The accused called Mr. Pieters at 6:39 p.m. and spoke to him for approximately 25 minutes. Just as the accused was finishing his consultation with Mr. Pieters, Det. Sgt. Henkel re-entered the interview room with an FIS officer and another homicide officer. At Det. Sgt. Henkel’s request, the accused told Mr. Pieters that Det. Sgt. Henkel would be calling him right back. In fact, Det. Sgt. Thornton called and spoke to Mr. Pieters at 7:12 p.m.

Forensic Investigation

[25] At 7:07 p.m., Det. Sgt. Henkel and the FIS officer took the accused to interview room 6 for forensic processing. This encounter was also recorded. After Det. Sgt. Henkel left the room, the FIS officer explained to the accused that he would be swabbing the accused’s hands and fingernails, photographing him and collecting his clothing, including his shoes, one item at a time.

[26] The accused asked why they needed his clothing and said that he wouldn’t still be wearing the same clothing if he had committed the offence. He called it unbelievable punishment. He also said that he would not wear the white paper suit they offered him. He complained that there was no warmth to it, and they would be putting him in a cold cell. He refused to strip down and said that the police would have to bring in more officers if they wanted his clothes and didn’t care if they beat him. He insisted that he would only remove his clothing if they got him other clothing, such as sweatpants and hoodie. He continued making his argument at length and was very insistent.

[27] The accused did agree to the other procedures mentioned by the FIS officer, who took swabs from the accused, photographed him and examined his head. He could see no visible injury.

[28] Ultimately, the accused complied with the request to hand over his clothing after the police found an orange jump suit for him to wear, obtained new underwear, socks and shoes for him and allowed him to keep his sweatshirt on. Det. Sgt. Henkel paid for the shoes out of his own pocket.

[29] The process with the FIS officer took 55 minutes and ended at 8:00 p.m. The accused was then taken back to interview room 5.

The Interview

[30] The interview commenced at 8:14 p.m. and continued for 45 minutes. Det. Sgt. Thornton and Det. Sgt. Henkel interviewed him. No one else was present in the room. The officers did not know that the accused was indigenous at the time of the interview.

[31] Det. Sgt. Thornton took the lead in questioning the accused, but Det. Sgt. Henkel also asked questions. Neither Det. Sgt. Henkel and Det. Sgt. Thornton nor the accused were wearing face masks. Det. Sgt. Henkel explained that, at the time, masks were not ordinarily worn in police facilities. There was a lot of ambiguity about the appropriate precautions at the time. The Homicide Squad officers worked from home as much as possible, anyone entering a police station had to be screened, masking was generally considered to be a “grey area” and people were more concerned about surface contact. He said that if he had thought that the persons in the interview room were in peril, he would have ensured that they wore masks.

[32] Coincidentally, the City of Toronto mandatory masking requirement came into effect the following day. While an emergency had been declared on March 17, 2020, by Ontario Order in Council due to the health risk to Ontario residents arising from COVID-19, the City of Toronto did not impose a mask mandate until it enacted Bylaw 541-2020 on June 30, 2020, on the advice of the Medical Officer of Health. The by-law required the wearing of masks in any “establishment” that was open to the public. An establishment was defined to include “community service agencies providing services to the public”, which in turn presumably included police stations.

[33] Before the interview began, Det. Sgt. Henkel had spoken to Det. Sgt. Redman briefly and received a copy of her notes, which he reviewed. He was aware that the accused had self-reported an injury to his head and drug and alcohol use, but he had no concerns about these issues for several reasons. First, he knew the booking officer and considered her to be careful to avoid a crisis in the police station. She would have sent the accused to the hospital if there had been a concern. In addition, there was no visible injury in the FIS photo of the accused’s head, no signs of drug or alcohol use, and he found the accused to be alert and engaged.

[34] At the end of the interview, it remained Det. Sgt. Henkel’s view that there was no reason to be concerned about the condition of the accused because of a head injury, alcohol use or drug use. The accused appeared to have a sound operating mind. He never displayed any of the standard symptoms of alcohol or drug use, such as smelling of alcohol, jitteriness, irritability or profuse perspiration. He asked questions and took a calculated approach to the interview. He was aware of, and ticked off, all of the legal arguments that might be made in defending the charge.

[35] When the accused entered the interview room, Det. Sgt. Henkel told him where to sit and said that he would leave the door to the room open “just for ventilation with all these COVID things going on right now.” Det. Sgt. Henkel then began performing a COVID-19 screening with the accused. He asked him if he had any concerns or any exposure to COVID-19. The accused replied, “Uh yeah I got some health issues if I uh get COVID I’d fuckin’ die.” He then confirmed that he had had no exposure to COVID-19, no fevers, and had been screened for COVID-19 when he came into the station.

[36] The accused then confirmed to Det. Sgt. Thornton that he knew why he was there and that he had spoken to Mr. Pieters. Det. Sgt. Thornton then said, “Okay. And you’re satisfied with the information that he’s provided to you? I’m not asking you what it is.” The accused replied, “No yeah, I need to make another call to him later tonight. But until that point [no].” I placed a square bracket around the word “no” because it appears in the transcript of the interview. However, I have watched and listened to the recording repeatedly, and I am unable to hear this word.

[37] Det. Sgt. Thornton then said, “Okay, so you want to speak to him again, after.” The accused replied, “Yes.” Det. Sgt. Thornton said that she would make a note of it and ensure that it happens. She then proceeded with the interview.

[38] Counsel for the accused argues that in this exchange, the accused was asserting that he wished to speak to his counsel again before the interview. I do not agree. After watching and listening to this exchange several times, and whether or not the word “no” was stated by the accused, it is clear to me that the accused was saying nothing more than that he wanted to speak to his counsel again later that evening. He was not saying that he was unsatisfied with the information that his counsel had provided to him, and he was not expressing reluctance to talk to the officers at that time.

[39] Following this exchange, Det. Sgt. Thornton reminded the accused that she had read him his rights to counsel earlier, reminded him of the charge, mentioned the assault and uttering threat charges that D.C. Ferreira would be speaking to him about later, and gave him the standard police caution as well as a standard secondary caution. She then asked him, “Okay. So, what happened?” The accused replied, “I don’t know. I thought that’s why I was here, to find out?” Det. Sgt. Thornton then proceeded to ask the accused a series of questions about where he had been in the past week, about where he resided, about his family and friends and about his knowledge of the death of the deceased, which the accused answered.

[40] Eight minutes and thirty seconds into the interview, after Det. Sgt. Thornton asked the accused what he thought about what happened to the deceased, the accused said, “You guys clearly know that my lawyer instructed me to say like nothing, right?” Det. Sgt. Thornton replied, “That’s totally within your rights. That’s the advice we expect for you to get. We don’t want you to tell us what your lawyer tells you.”

[41] Det. Sgt. Thornton then proceeded to ask the accused if he was aware that there was video surveillance in the area. The accused acknowledged that he did. Det. Sgt. Thornton then told him where the surveillance cameras were located, and said, “This is kind of your opportunity to … talk to us, tell us what might have led up to this.” The accused replied, “Yeah I don’t have anything to say unless my lawyer’s here, to be honest. I was just kind of listening to y’all coming through for this little chit chat.” Det. Sgt. Thornton replied, “Okay, I’m just going to show you a couple of pictures, okay?” The accused replied, “Okay.” She proceeded to show the accused some stills from the video the night of the stabbing, and asked questions about them. The accused did not answer most of these questions, sometimes saying, “I’m not at liberty to say” or “I’m not going to say.” He gave short answers to a few of the questions. These answers were largely inconsequential to the investigation.

[42] Det. Sgt. Thornton then asked the accused if he wanted to see the video of what happened. He replied, “I’d love to see it.” He also said, “I’m just trying to see what you guys know.” Det. Sgt. Thornton then continued asking questions. Again, the accused made a few comments in response but did not really answer the questions.

[43] At fourteen minutes and fifty seconds into the video, Det. Sgt. Thornton said to the accused, “Where the stabbing takes place, that’s very clear, and it’s you stabbing Stephon, and so we know it happened there, but we still want to know from your side what happened leading up to it.” The accused replied, “Like I said you know, I’d rather have my lawyer present.” Det. Sgt. Thornton replied, “Okay. Well, we can show you the video.” The accused said, “Yep.” Det. Sgt. Thornton said, “We’ll go through the rest of the photos as well.” The accused said, “Okay.” Det. Sgt. Thornton said, “Do you have any concerns at this point?” The accused said, “No.” The questioning continued.

[44] After a while, Det. Sgt. Henkel began asking a few questions. At one point, he said to the accused that if it was not him in the photos and the video, then could he tell them where he was at the time. The accused replied, “Mmmm, I just can't recollect. Maybe I will, maybe I won’t. Maybe I will recollect when my lawyer’s here.” Det. Sgt. Henkel then began playing some of the video for the accused and asking questions about it. Again, the answers were generally brief and non-committal or inconsequential. The accused frequently said that he didn’t know the answer or “no comment.”

[45] Twenty-two minutes into the interview, the accused asked for water. Det. Sgt. Henkel immediately stepped out and brought the accused a bottle of water. While Det. Sgt. Henkel was out of the room, Det. Sgt. Thornton again said, “But if you want to talk about what happened to you just before …” The accused replied, “Like I said, I, I’d rather talk to my lawyer and have my lawyer here for this.” The questions continued.

[46] Twenty-eight minutes into the interview, Det. Sgt. Henkel asked, “Is there anything you want to say to the people who may watch this video down the road?” The accused replied, “ No comment.” A few moments later, Det. Sgt. Henkel said, “We’re giving you your opportunity. You don't have to say anything. Your lawyer’s told you that. The Supreme Court of Canada says we’re allowed to ask questions.” After describing what can be seen in the video, Det. Sgt. Henkel asked, “Anything you want to share with us? I mean this is your opportunity.” The accused replied, “Well my lawyer will still have things that are admissible but yes, it was self-defence. I don’t really want to get into details of that until I’ve spoken with my lawyer.” A few moments later, the accused asked, “Is there more video?” when he was told that there was, he said, “I’d love to see it.”

[47] The questioning then continued, and the answers remained brief, usually about unimportant matters, and otherwise non-committal or inconsequential. At the thirty-seven-minute mark of the interview, Det. Sgt. Thornton asked the accused if it bothered him at all that Stephon was dead. He replied, “Yes. Yes, it does. Guys I want to talk to you but like I said, my lawyer told me to shut the fuck up. And if my lawyer tells me to shut the fuck up, I shut the fuck up.” Det. Sgt. Henkel replied, “And it's your right. You have every right to, and you've been very cordial with us. You’ve been talkative, I appreciate that”. The accused replied, “Right. I mean you can press on, I'm kind of enjoying it, it's really fun but uh, you know yeah it bothers me that anyone’s dead. No one should have to die, okay.”

[48] The questioning continued. A short while later, Det. Sgt. Henkel was asking about what was seen in the video. The accused said, “Well go get those other angles and you might see the whole story.” Det. Sgt. Henkel said, “That's why it’d be nice for you to fill in the blanks. Uh there is footage, and we know some things going on there.” The accused replied, “You guys get my lawyer here and I’ll start taking. But until I feel comfortable with legal counsel here. I mean you guys can always make another appointment to come see me. I'm pretty sure you know what my address is going to be as of my next court date. I’m going to go to the south for a little bit. Now unless there’s anything else to go over, we’re just kind of swimming in circles here.”

[49] Det. Sgt. Henkel replied, “I’m not here to fence with you. We’re just trying to get an understanding and get a bead on you, see where you're at from your mind set and if you, some people want to get it off their chest and uhm we’re just giving you the opportunity to, right. Sometimes people feel better, release to the soul. Right?” The accused replied, “If that is me.”

[50] A short time later, the accused asked, “So can I talk to my lawyer now?” Det. Sgt. Henkel replied, “Absolutely. You have your, we’ll give, make you a line and you can have a chit chat with him. I believe in, in well we believe in basically being openminded, open and fair.” The questions then continued for a few minutes, and the answers remained of the same quality. The accused then said, “Like I said guys I might be willing to come talk to you in a few minutes if you let me talk to my fuckin’ lawyer, but until I have that conversation I’m not going to come back in this room, and I really have not much else to say. I can talk about other people in the neighbourhood, I can talk about that, but …” Almost immediately after that, Det. Sgt. Henkel said, “Alright well let’s get you a call to your lawyer. Okay, and then if you want to chat after that, just let us know.” After a further short conversation, the interview ended.

The Accused’s Second Telephone Call with Counsel

[51] At 9:15 p.m., Det. Sgt. Thornton spoke to Mr. Pieters, and then transferred the call to the accused.

Analysis

[52] On February 7, 2022, the Crown gave written notice of an application for an order permitting the Crown to adduce the statement made by the accused in evidence at this trial for the purposes of cross-examination only.

[53] In a response dated February 15, 2022, the accused gave notice of his position that the statement was not voluntary, was given in an atmosphere of oppression, and was not the product of an operating mind. This arose from: (1) the fact that the officer transporting the accused to the police station where his statement was made and the detectives who interviewed him were not wearing masks and he was not offered a mask; and (2) the allegation that the accused was not provided with his right to counsel when requested on several occasions during his interview.

[54] In addition, in a Notice of Application dated March 6, 2022, the accused applied for an order excluding that statement pursuant to s. 24(2) of the Charter on the basis that the statement was taken in a manner that violated his right to instruct counsel without delay protected by s. 10(b) of the Charter. Specifically, he alleged that s. 10(b) was violated because his request to exercise his right to counsel was not respected: (1) when the police did not curtail their interview of him when he asked that his counsel be present in the interview room; and (2) when he asked to be allowed to speak to counsel during the interview.

[55] In that same notice of application, the accused gave notice once again of his position that the statement was not voluntary, this time adding an allegation that he had no operating mind when he was interviewed by police because at the time he was under the influence of drugs or alcohol and had a head injury.

[56] The common law voluntariness rule and the right to counsel guaranteed by the Charter are interrelated, but the arguments about their application require separate consideration. I will begin with the Charter argument.

Was the Statement Taken in a Manner that Violated the Accused’s Right on Arrest to Instruct Counsel Without Delay?

1. Did the York Regional Police Violate the Accused’s Right on Arrest to Instruct Counsel Without Delay?

[57] The only breach of s. 10(b) of the Charter raised by the accused in his Notice of Application to exclude his statement relates to the conduct of Det. Sgt. Henkel and Det. Sgt. Thornton in their interview of the accused at 51 Division. However, as it developed, a second alleged breach of s. 10(b) of the Charter was advanced for the first time in oral argument, one that had not been raised in the Notice of Application or in any of the pre-trial conferences held in relation to this prosecution or otherwise hinted at in advance.

[58] The second alleged breach of s. 10(b) raised for the first time in oral argument was that although both the York Regional Police officers who arrested the accused and the York officer who transported the accused to Toronto had complied with the informational component of s. 10(b), advising the accused of his right to retain and instruct counsel without delay, they failed to fulfil the implementational component of s. 10(b) because they failed to facilitate his right to call his lawyer despite the accused expressing the desire to do so.

[59] This argument arose in an unusual way. It had been agreed between counsel before trial and documented in a pre-trial conference report authored by McMahon J. that the Crown need only call Det. Sgt. Henkel and Det. Sgt. Thornton as witnesses on a blended voir dire in which voluntariness and the s. 10(b) issue would be addressed. However, Crown counsel chose to call two York police officers on the voir dire as a result of other late-breaking issues raised in the accused’s March 6, 2022, application.

[60] As I indicated above, when D.C. Hunter read the right to counsel to the accused, the accused said that he wanted to speak to Selwyn Pieters, his counsel. And when P.C. Case advised him again of his right to counsel in the police car, he again said that he wanted to speak to Selwyn Pieters. However, the arresting officers did not give the accused the opportunity to contact his counsel at that time, nor did the transporting officer while driving to Toronto. I can only assume that all of this was known to counsel for the accused before trial, and that he deliberately chose not to raise it as a potential breach of s. 10(b). Nonetheless, I see no prejudice to the Crown in considering this issue, and I will proceed to do so. But I do see the failure to raise it earlier as an indication of the accused’s assessment of the seriousness of the matter.

[61] Section 10(b) of the Charter imposes both informational and implementational duties on state authorities who arrest or detain a person. Once a detainee has indicated a desire to exercise his or her right to counsel, the state is required, without delay, to provide him or her with a reasonable opportunity in which to do so. What constitutes a “reasonable opportunity” will depend on all of the surrounding circumstances. In addition, state agents must refrain from eliciting incriminatory evidence from a detainee until the detainee has had a reasonable opportunity to reach counsel: R. v. Prosper, [1994] 3 S.C.R. 236, at pp. 268-269.

[62] The term “without delay” in s. 10(b) means “immediately”: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 41-42. If the detained person exercises their right to counsel, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel. However, the s. 10(b) jurisprudence has always recognized that specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relate to police safety, public safety or the preservation of evidence: R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at paras. 24-28. The decision in R. v. Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78, provides a helpful summary of the law.

[63] In Wu, at para. 78, Di Luca J. stated that the assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination. He went on to say that while there is no closed list of scenarios where a delay or suspension of the right to counsel is justified, general categories emerge from the case law. Amongst these, two considerations that can justify delay in implementing the right to counsel are pertinent here: cases where there are concerns for officer or public safety, and cases where practical considerations exist, such as a lack of privacy.

[64] In this case, these two considerations justify the delay. It must be borne in mind that the York officers knew nothing about the charge against the accused. They were not even members of the police force that was investigating the offence. They were simply executing an arrest warrant and fulfilling its mandate to transport the accused to the police in Toronto. In addition, the accused was charged with murder, and arrested in the street. D.C. Mantifel could only assume that the accused was dangerous and, as a result, quite properly concluded that it was not possible to provide him with privacy at the roadside for reasons of officer and public safety. As Abella J., for the Court, observed in R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 27, “I agree that in light of privacy and safety issues, the police are under no legal duty to provide their own cell phone to a detained individual.” Similarly, it was not possible to provide the accused with privacy in the police car.

[65] Importantly, the police held off questioning the accused about the alleged offence before he was given the opportunity to consult counsel. Indeed, it is hard to imagine what the York officers could have asked him about the charge since they knew nothing at all about it.

[66] The accused was arrested in Georgina at 3:29 p.m., taken from the scene of the arrest at 3:34 p.m. and arrived at 51 Division at 4:40 p.m. While I acknowledge that the length of the trip from Georgina to 51 Division in Toronto meant that the delay in implementing the right to counsel was longer than is ordinarily the case when the police transport an accused from an arrest in a public place to a police station, in the particular circumstances of this case, the delay for that period of time was reasonable, and s. 10(b) of the Charter was not violated.

[67] In oral argument, counsel was also critical of the amount of time that passed in 51 Division before the accused was put in touch with his counsel. I will consider that period of time next.

[68] The York officers were able to bring the accused into the police station at 5:06 p.m. All persons brought into a police station under arrest must immediately be paraded and booked by a booking officer and searched in privacy. The fundamental purposes of the booking process are to ensure the health and safety of the accused and others, to ensure that the accused knows about the right to counsel and is permitted to exercise it, and to ensure that any property in the possession of the accused is properly secured: R. v. Dupe, 2010 ONSC 6594. Obviously, all of this must be done before the accused is given an opportunity to consult counsel in the police station.

[69] The booking process began at 5:06 p.m. It was somewhat prolonged because:

• the accused had to be screened for COVID-19, which would have happened before he was admitted to the station in accordance with the Toronto Police procedures had he been arrested by Toronto police officers,
• his self-reported head injury and pre-arrest alcohol and drug consumption had to be explored, and
• a large amount of cash in small bills taken from the accused’s possession had to be counted, signed for and sealed in his presence.

During the booking process, the booking officer ascertained once again that the accused wanted to speak to counsel and assured him that he would be permitted to do so. The booking process ended at 5:48 p.m.

[70] Following the booking process, the accused used a washroom and was then placed in an interview room in the police cells where he was left alone and subjected to no investigative steps until homicide detectives had their first contact with him at 6:25 p.m. At 6:39 p.m., he was put into contact with Mr. Pieters and spoke with him for approximately 25 minutes.

[71] 51 Division was very busy and chaotic at the time when the accused arrived. A person in the cells can be heard throughout the recording of the booking process screaming loudly and continuously. Ordinarily, the accused could have been given the opportunity to call Mr. Pieters during the half-hour period before the homicide detectives first met with him. However, in the circumstances, that additional period of time before the accused was able to consult counsel was not significant. Importantly, once the detectives responsible for his case made contact with the accused, they facilitated contact with his counsel expeditiously.

[72] Once again, I conclude that the accused’s s. 10(b) rights were not violated by the timing of his opportunity to speak to his lawyer. However, even if I am wrong and there was a violation, it was inconsequential. Most of the delay was reasonable, and the police held off questioning the accused about the alleged offence before he was given the opportunity to consult counsel. It would not justify excluding the statement made to the homicide investigators after the accused spoke to his counsel.

2. Did the Toronto Police Officers Who Interviewed the Accused Violate His Right to Instruct Counsel Without Delay?

[73] The accused argues that he made it clear at the beginning of his statement that he was not satisfied that he had all of the information that he required from his counsel, and that the continued interrogation then, and after his repeated assertions of his desire to have his lawyer present for the interview or to contact him, violated his right to counsel protected by s. 10(b) of the Charter.

[74] In assessing this claim, it is important to keep in mind the contours of the right to counsel as developed in the jurisprudence of the Supreme Court of Canada. I begin with R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310.

[75] In Sinclair, after being arrested for murder, the accused was advised of his right to counsel and permitted to speak to his lawyer by telephone. He was later interviewed by a police officer for several hours. During the interview, on a number of occasions, he stated that he had nothing to say about matters touching the investigation and wanted to speak to his lawyer again. The officer confirmed that he had the right to choose whether to speak or not, but refused to let him consult counsel again, and told him that he did not have the right to have his lawyer present during questioning. The officer then continued the interview. Ultimately, the accused implicated himself in the murder. The majority in the Supreme Court concluded that there was no violation of s. 10(b).

[76] The majority made clear that the implementational component of s. 10(b) of the Charter is a one-time right to consult counsel with a few recognized exceptions. They stated, at para. 64:

[W]e take the settled view to the effect that the right to counsel is essentially a one-time matter with few recognized exceptions, and expand upon this existing jurisprudence by recognizing the right to a further consultation with counsel in any case where a change in circumstances makes this necessary to fulfill s. 10(b)’s purpose of providing the detainee with advice in the new or emergent situation.

[77] At para. 2 of Sinclair, the majority stated that there is no right to have counsel present throughout a custodial interrogation and listed the three exceptions recognized to date where there is a right to a second consultation with a lawyer:

We conclude that s. 10(b) does not mandate the presence of defence counsel throughout a custodial interrogation. We further conclude that in most cases, an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies s. 10(b). However, the police must give the detainee an additional opportunity to receive advice from counsel where developments in the course of the investigation make this necessary to serve the purpose underlying s. 10(b) of providing the detainee with legal advice relevant to his right to choose whether to cooperate with the police investigation or not. To date, this principle has led to the recognition of the right to a second consultation with a lawyer where changed circumstances result from: new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the first information provided was deficient. The categories are not closed.

[78] The facts in Sinclair are somewhat similar to the facts here. Unlike in Sinclair, the interview here was only 45 minutes long, and the accused did not confess. In addition, the police officers did not explicitly tell the accused that he could not have his counsel present for the interview, although the accused could have been in no doubt that that was the case. These differences do not support a different result. The fact that the accused repeatedly expressed his desire to have his counsel present might have an impact on voluntariness, but it did not result in a breach of s. 10(b): Sinclair, at para. 60.

[79] By “new procedures,” the Court had in mind non-routine procedures that require the accused’s cooperation, such as participating in a line-up or submitting to a polygraph: Sinclair, at para. 50.

[80] Counsel for the accused argued that in this case, the accused’s circumstances fall into all three of the exceptions.

[81] First, he says, there was reason to believe that the first information provided by counsel to the accused was insufficient. He refers to the exchange between the accused and Det. Sgt. Thornton at the beginning of the interview. Det. Sgt. Thornton asked the accused if he was satisfied with the information counsel provided to him, and he replied, “No yeah I need to make another call to him later tonight. But until that point [no].” Det. Sgt. Thornton then said, “Okay, so you want to speak to him again, after?” and he replied, “Yes.” Det. Sgt. Thornton said that she would make a note of it and ensure that it happened and proceeded with the interview.

[82] As I said earlier, after watching and listening to this exchange several times, it is clear to me that the accused was saying nothing more than that he wanted to speak to his counsel again later that evening. He was not saying that he was unsatisfied with the information that his counsel had provided to him, and he was not expressing reluctance to talk to the officers at that time.

[83] In addition, the accused could not have been confused about the fact that he had the right to refuse to answer police questions. He exercised that right repeatedly, and the interrogating officers reminded him of it repeatedly and never denigrated the advice given to him by counsel. The significance of these three considerations was recognized in Sinclair, at para. 73, where the majority said that virtually identical considerations in that case “confirm that Mr. Sinclair was never confused about his legal options”.

[84] Second, counsel for the accused argued that the accused was subjected to new procedures. The new procedures were the photographing of the accused, the swabbing of his fingers and the seizure of his clothing. I do not consider these procedures to be non-routine. They are standard procedures that do not require the accused’s consent, cooperation or participation. Of course, an accused can attempt to thwart any procedure by resisting, but that is not to be confused with a procedure that requires the accused’s cooperation. In addition, the accused was told about these procedures before he consulted counsel and had ample opportunity to obtain advice about them if he wanted. Finally, even if additional advice might have assisted the accused in some way in deciding whether to cooperate in the procedures undertaken, it could have had no impact on the adequacy of the advice he had already received about being questioned by the police.

[85] Third, counsel for the accused argues that his jeopardy changed as a result of the police revealing the evidence against him piece by piece, specifically still shots from the surveillance video. But that is not what the caselaw intends when the term “change in jeopardy” is used. It is usually used in reference to situations where an investigation takes a new and more serious turn as events unfold, typically where the police have reason to pursue additional charges or to upgrade the charge that the accused was advised of when he was arrested and cautioned to one that is more serious – for example, murder rather than manslaughter: Sinclair, at para. 51. Moreover, the majority in Sinclair, at para. 60, directly addressed the argument advanced by the accused under this heading:

However, the cases thus far do not support the view that the common police tactic of gradually revealing (actual or fake) evidence to the detainee in order to demonstrate or exaggerate the strength of the case against him automatically triggers the right to a second consultation with a lawyer, giving rise to renewed s. 10(b) rights.

[86] For these reasons, I conclude that the police officers who interviewed the accused did not violate his rights under s. 10(b) of the Charter. I turn next to the voluntariness of his statement.

Was the Accused’s Statement Made Voluntarily?

No Operating Mind

[87] The accused argues that he had no operating mind when he was interviewed by the police because he was under the influence of drugs or alcohol and had a head injury.

[88] Before a statement of an accused can be admitted in evidence, the Crown must establish beyond a reasonable doubt that it was made voluntarily. A statement is not made voluntarily if the accused does not have an operating mind. An accused has an operating mind if the accused possesses a limited degree of cognitive ability sufficient to understand what is being said to him and to comprehend that the evidence may be used in proceedings against them. No inquiry is necessary as to whether the accused is capable of making a good or wise choice or one that is in their interest. The test 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: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 63-64.

[89] There is nothing in the evidence that has been led on this voir dire to raise a doubt that the accused spoke to the police possessed of an operating mind. While he self-reported a head injury and the recent consumption of a significant quantity of cocaine and an impossible quantity of alcohol, these reports are undoubtedly grossly exaggerated at best. There was no visible sign of injury to his head, no smell of alcohol and no indicia of impairment. The absence of any indicia of impairment is not only the observation of each of the witnesses who came into contact with him, it is also my own observation, having listened to him speak to each of these witnesses and having watched and listened to the recording of his interview. He was alert, engaged, articulate, clear, calculating and sometimes witty. He was well aware of what he was saying and unquestionably comprehended that the evidence might be used in proceedings against them.

[90] There is no merit to this argument.

Atmosphere of Oppression

[91] A statement of an accused will be rendered involuntary and inadmissible where the conduct of a police officer or the circumstances of the detention are so oppressive as to raise a doubt whether the accused was able to make an independent choice to speak to the police or to remain silent: R. v. Fernandes, 2016 ONCA 772, 343 C.C.C. (3d) 29, at para. 33.

[92] If the conditions are distasteful enough, a suspect may confess to escape those conditions, or their will may be overborn to the point that they give an induced confession. Oickle, at paras. 58-62. By way of example only, an atmosphere of oppression can be created by “depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time”: Oickle, at para. 60.

[93] Under the confessions rule, the oppressive conditions must be caused or created by the state. The concern underlying this part of the voluntariness rule is that state agents may abuse their authority over an accused to effectively negate the accused’s ability to make an independent decision to speak to the authorities: Oickle, at para. 60, and Fernandes, at para. 36.

[94] Here the accused argues that the police created an atmosphere of oppression by denying him a face mask despite his fear of COVID-19 and by denying him the right to counsel. I will consider each of these claims in turn.

Atmosphere of Oppression – Failure to Provide a Face Mask to the Accused

[95] Counsel for the accused argues that “Notwithstanding Mr. Madison’s expressed fear for his life, no further COVID-19 health and safety measures such as masking were implemented during the interview. The detectives simply proceeded to question him, ignoring his expressed sense of mortal terror.”

[96] To begin with, I reject the premise of this argument that the accused expressed fear for his life and a sense of terror. His comment about his fear of dying from COVID-19 arose in response to Det. Sgt. Henkel telling him that he would leave the door to the room open “just for ventilation with all these COVID things going on right now” and screening him for COVID-19. When Det. Sgt. Henkel then asked the accused if he had any concerns or exposure to COVID-19, the accused said, “Uh yeah I got some health issues if I uh get COVID I’d fuckin’ die.” He then confirmed that he had had no exposure to COVID-19, no fevers, and that he had been screened for COVID-19 when he came into the station.

[97] I do not take from this exchange that the accused was in fear for his life in the interview room or was experiencing a sense of terror. Having watched the video of the interview, it is clear that he was not. He was focussed largely on the questions asked of him and on the evidence possessed by the police that the officers revealed to him, and not at all on COVID-19. While I accept that the accused, like a great many people in the midst of the first wave of COVID-19, feared that he could die if he contracted COVID-19, I am satisfied that this was unconnected to masking or to the circumstances of the interview. The accused was not wearing a mask when he was arrested, did not have one in his possession, and made no mention of a mask at any time while in police custody, and certainly not while being interviewed. He did not ask to be provided with a face mask or ask that the police officers wear face masks during the interview. Nor am I obliged to be blind to the uncontested fact that on June 25, 2020, four days before the arrest, the accused was video recorded in close proximity to others both outdoors and in a hallway in the apartment building at 280 Wellesley Street East at no time wearing a mask.

[98] The accused argues, and I agree, that his indigenous status, and the well-established impact of systemic discrimination, stereotyping and racism against indigenous persons should be taken into account in assessing this and other issues. It is undoubtedly true that there is a history of treatment of indigenous persons by police officers and others in the criminal justice system that might make such a person reluctant to assert themself or their desire for a mask when in custody in a police station. But that is unquestionably not the case with the accused. His interaction with the FIS officer one hour earlier is determinative of this issue. His resistance to giving up his clothing, his adamant refusal to remove items of his clothing and to wear the paper clothing offered to him even if the police called in reinforcements and, in his words, beat him, and his forceful negotiating for other clothing and footwear demonstrate that had the accused been concerned about masking during the interview, he would have vigorously asserted his position.

[99] What is more, any suggestion that the police were attempting to create an oppressive atmosphere by depriving the accused of a mask is without foundation. The conduct of the police on June 29, 2020, must not be assessed through the lens of March 2022.

[100] The first presumptive case of COVID-19 in Ontario was identified on January 25, 2020. COVID-19 was declared to be a pandemic by the World Health Organization (“the WHO”) on March 11, 2020. The Government of Ontario issued a Declaration of Emergency under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, on March 17, 2020. The Mayor of Toronto declared a state of emergency in relation to COVID-19 on March 23, 2020. By May of 2020, the measures of physical distancing in congregate settings, lockdowns, hand hygiene, face masks, screening for symptoms, cleaning and other interventions were understood by public health professionals to be of value in reducing transmission of COVID-19 in populations of density such as correctional facilities. And although we were still in the first wave of the COVID-19 pandemic on the date of the accused’s arrest, Toronto had entered Stage 2 of Ontario's reopening plan on June 24, 2020, five days before the arrest.

[101] To underscore the difference between June 29, 2020, and March 2022, as late as July 9, 2020 – astonishing as it may seem from today’s perspective – the WHO, together with the scientific community, was still actively discussing and evaluating whether COVID-19 might be spread through aerosols in indoor settings with poor ventilation in the absence of medical procedures that generate them.

[102] Although the COVID-19 picture had been grim for some months before the arrest of the accused, when it comes to the importance of masking, it must be remembered that it was only on June 5, 2020 that the World Health Organization formally endorsed the wearing of masks by all members of the public where there is widespread transmission and physical distancing is difficult, such as on public transport, in shops or in other confined or crowded environments. And it was only on June 30, 2020, the day after the accused’s interview, that the City of Toronto enacted Bylaw 541-2020 requiring wearing of masks over the mouth nose and chin in establishments that are open to the public, including community service agencies providing services to the public.

[103] I have set out this chronology to underscore my point that what most of us understand and accept about masking today was not what was known and understood on June 29, 2020. The officers that arrested, transported, searched, examined, and interviewed the accused placed themselves just as much at risk by not masking as did the accused. I doubt that any of them would be unmasked in the same circumstances today. I do not for a second believe that any of them intended to place themselves or the accused at risk by not masking.

[104] For these reasons, I am satisfied beyond a reasonable doubt that the police did not subject the accused to an atmosphere of oppression by interviewing him while he and they were unmasked, and that his statement was not involuntary on this account.

Atmosphere of Oppression – Denial of the Right to Counsel

[105] I have concluded that the accused’s right to counsel guaranteed by s. 10(b) of the Charter was not violated by the actions of Det. Sgt. Henkel and Det. Sgt. Thornton when they interviewed the accused. However, that does not exhaust the potential significance of the accused’s several assertions that he wanted his counsel present at the interview. It also figures into the assessment of voluntariness.

[106] In R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 53, the majority emphasized that rulings on voluntariness are highly fact-specific:

In some circumstances, the evidence will support a finding that continued questioning by the police in the face of the accused’s repeated assertions of the right to silence denied the accused a meaningful choice whether to speak or to remain silent: see Otis. The number of times the accused asserts his or her right to silence is part of the assessment of all of the circumstances, but is not in itself determinative. The ultimate question is whether the accused exercised free will by choosing to make a statement: Otis, at paras. 50 and 54.

[107] Similarly, at para. 47, in response to an argument that the police should not be permitted to ignore a detainee’s express wish to remain silent, the Court stated:

First, the use of legitimate means of persuasion is indeed permitted under the present rule – it was expressly endorsed by this Court in Hebert. This approach is part of the critical balance that must be maintained between individual and societal interests. Second, the law as it stands does not permit the police to ignore the detainee’s freedom to choose whether to speak or not, as contended. Under both common law and Charter rules, police persistence in continuing the interview, despite repeated assertions by the detainee that he wishes to remain silent, may well raise a strong argument that any subsequently obtained statement was not the product of a free will to speak to the authorities. As we shall see, the trial judge in this case was very much alive to the risk that the statement may be involuntary when a police officer engages in such conduct.

[108] This passage was endorsed by the majority in Sinclair, at para. 60.

[109] Further consideration of Singh is instructive. Singh was arrested for second degree murder. The deceased was shot while standing just inside the doorway of a pub. Singh was advised of his right to counsel and privately consulted with counsel. During the course of two subsequent police interviews, Singh stated on eighteen occasions that he did not want to talk about the incident, that he did not know anything about it, or that he wanted to return to his cell. On each occasion, the interviewing officer either affirmed that Singh did not have to say anything and stated that it was nonetheless his duty to place the evidence before him, or deflected Singh’s assertion and eventually engaged him again in at least limited conversation. During the first interview, Singh did not confess to the crime, but made incriminating statements by identifying himself in pictures taken from the video surveillance inside the pub in question.

[110] The similarity between that case and this is apparent. In Singh, the trial judge concluded that the police stratagem used in that case was a legitimate technique of persuasion that did not deny the appellant the choice to remain silent. Nothing in the police conduct was so oppressive as to overbear the accused’s will. Neither the British Columbia Court of Appeal nor the Supreme Court of Canada saw any basis for interfering with the trial judge’s factual determinations concerning the officer’s conduct and its effect on the appellant’s freedom to choose whether to speak to the police. The Supreme Court noted, at para. 20, that the interviews were videotaped, and the trial judge was in an excellent position to assess the fairness of the process.

[111] Turning to this case, the focus of my assessment of the voluntariness of the accused’s statement must be on the conduct of the police and its effect on the accused’s ability to exercise his free will. The test is objective, but the characteristics of the accused are relevant considerations: Singh, at para. 36. The onus, of course, is on the Crown to establish voluntariness beyond a reasonable doubt.

[112] I do take note of the fact that in Singh, the accused told the police that he did not want to talk about the incident, while here, for the most part, the accused told the police that he wanted his lawyer present and would not talk about the alleged offence in his absence. This is a distinction without a difference. Fundamentally, in both cases, the accused was asserting a right to silence. Singh’s assertion was absolute, while Mr. Madison’s assertion was conditional. The analysis is the same.

[113] In this case, I am satisfied beyond a reasonable doubt that the conduct of the police, while strategic, was legitimate, was not oppressive, and did not overbear the accused’s freedom to choose whether to speak to the police, with or without his counsel present. Once again, I take into account the indigenous status of the accused, who exhibited in his comments while in custody a belief, in all probability reflecting an awareness of systemic discrimination, stereotyping and racism, that he risked retribution from the police if he did not cooperate. But a careful reading of the words exchanged as reflected in the transcript of the interview, and a careful review of the video of the interview, satisfy me beyond a reasonable doubt that the accused understood his right to refuse to answer questions, and made a deliberate choice, uninfluenced by his indigenous status, to speak when he chose to, to remain silent when he chose to, to be evasive when he chose to, and to himself employ tactics in an effort to get what he wanted from the interviewers, all without regard to the absence of his lawyer.

[114] What is plain from the video in particular is that the accused was not intimidated by the police officers who, it must be said, made every effort not to be intimidating. The accused was not reluctant to assert his rights or to have his say. It is not unfair to say that both the police and the accused had an agenda. The police did not really appear to be seeking a confession from the accused. After all, they were in possession of the surveillance video, had reviewed it, and knew that it clearly revealed that the accused had repeatedly stabbed the deceased. What they were really looking for was an understanding of why. They wanted to know specifically what had led to the stabbing. While they knew, again from the video, that the deceased and a confederate had appeared to rob the accused shortly before the stabbing, they wanted to know more, in particular what happened immediately before the stabbing.

[115] For his part, the accused wanted to know what evidence the police possessed that implicated him, while giving away as little as possible. He made this clear from the outset of the interview. The very first question asked of the accused by Det. Sgt. Thornton was, “What happened?” The accused replied, “I don’t know. I thought that’s why I was here, to find out.” A few minutes later, he said, “I don’t have anything to say unless my lawyer’s here, to be honest. I was just kind of listening to y’all coming through for this little chit chat.” Still later, he said, “ I’m just trying to see what you guys know.” On several occasions, he expressed an interest in seeing the surveillance video. While the accused’s strategy may have been unwise, and while he risked saying things that he might be unhappy to be stuck with later, it was his choice, and not the product of oppression by the police. While he undoubtedly wanted his lawyer present, he was quite prepared to continue without him when the police did not take up his requests.

[116] Furthermore, the accused demonstrated repeatedly that he knew he did not have to answer any question he chose not to and that he was not deterred from refusing to answer. He asserted his right explicitly on perhaps five occasions, frequently did not answer the questions asked of him, often said “no comment”, gave very short answers to a few of the questions, and sometimes claimed not to remember the answer to certain questions. And the answers he did give were largely inconsequential. Far from trying to convince him to waive his right to silence, the police officers affirmed several times that it was his right not to answer.

[117] I conclude that the police did not subject the accused to an atmosphere of oppression by continuing to interview him after he expressed a desire to have his counsel present at the interview on several occasions. His statement was voluntary.

Disposition

[118] For these reasons, I conclude that the accused’s statement is admissible at the instance of the Crown for the purpose of cross-examination. But I must issue a word of caution.

[119] A considerable portion of the accused’s statement is comprised of the accused declining to answer certain questions as an exercise of his right to silence. While I have not heard argument on this issue, I am inclined to the view that these answers are inadmissible. In addition, on several occasions, the accused asked either to have counsel present for the interview, or to consult him. I am inclined to the view that these comments are also inadmissible. As a result, should the accused testify, Crown counsel is free to cross-examine the accused on his substantive answers to questions in his interview, but may not cross-examine him on the answers and comments I have just listed without further argument.

M. Dambrot J. Released: March 22, 2022