COURT FILE NO.: 19-6279 DATE: 2022/05/10

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen – and – Donald Musselman Accused

Counsel: Matthew Geigen-Miller and Lisa Miles for the Crown Natasha Calvinho and Forest Poff-Smith for the Accused

HEARD: January 10, 2022

RULING ON STATEMENT

ANNE LONDON-WEINSTEIN J.

[1] Donald Musselman is charged with the second degree murder of Markland Campbell in the ByWard Market on June 7, 2019. I heard this motion earlier and provided a ruling. I promised I would provide reasons for my ruling at a later date. These are those reasons.

[2] Mr. Musselman was 18 years old at the time of the homicide. He provided a statement to police. The defence challenges the admissibility of the statement on the grounds that it has not been proven voluntary and alleges breaches of ss. 7 and 10(b) of the Canadian Charter of Rights and Freedoms.

[3] I found that the interviewing officer undermined Mr. Musselman’s right to silence and left him with the impression that he would be seriously prejudiced at trial if he chose to exercise his right to silence. For that reason, I found that the statement was not established to be voluntary beyond a reasonable doubt. The statement is therefore excluded.

Background

[4] Reanna Ashanti-Campbell is the daughter of the victim. She had been in the ByWard Market for a birthday party at the Andaz Hotel. She left the hotel and walked to Rideau Street where she had a cigarette with a male she knew. She walked on George Street and called her father to come pick her up. A male she knew as Rico began to argue with her as he believed Ashanti-Campbell told his girlfriend he had cheated. The altercation continued and she told Rico to stop following her, at which point he is alleged to have grabbed her by the shoulder threatening to punch her.

[5] Ms. Ashanti-Campbell continued to walk and met her father. Her father was upset at the altercation she had with Rico and was yelling “where is Rico? I need to speak to him.”

[6] Ms. Ashanti-Campbell subsequently saw Rico and another male, who she knows as Scotty, come at her and her father. Scotty is alleged to be Mr. Musselman. Mr. Musselman is alleged to have pulled out a black handgun and fired it twice. Ms. Ashanti-Campbell and her father fled toward York Street, where her father collapsed. He later died.

[7] Detective Kevin Jacobs and Sergeant Dan Brennan attended Mr. Musselman’s home to arrest him for second degree murder.

[8] Sgt. Brennan is a veteran police officer. He has been with the Ottawa Police Service for 32 years. He has been with the Homicide Division since 2012.

[9] Sgt. Brennan attended an address on Iris Road to interview David Vizigiro, a witness to the homicide. The address police had been provided did not exist and the interview could not be conducted.

[10] Sgt. Brennan was then instructed to attend the address of Donald Musselman in Orleans. He attended with Det. Jacobs.

[11] Sgt. Brennan knocked on the door and spoke to Mr. Musselman’s mother, Daphne Duplessis. He asked if Mr. Musselman was home. Ms. Duplessis went upstairs to check. It was 4:57 a.m.

[12] Det. Benson advised Det. Jacobs that Mr. Musselman was to be arrested for murder. The officers requested that Ms. Duplessis ask her son whether he would consent to be arrested in the home, or whether police would have to seek a Feeney warrant.

[13] Ms. Duplessis went upstairs. She advised police that her son was sleeping in his bedroom. He consented to be arrested by the officers. The two officers waited in the interior vestibule of the house, where Ms. Duplessis had invited them to enter.

[14] Sgt. Brennan watched the stairway. Ms. Duplessis’s partner came downstairs. Mr. Musselman came down a moment or two later.

[15] Mr. Musselman agreed to be arrested in the home without the necessity of a Feeney warrant. Det. Jacobs arrested Mr. Musselman for murder. He was provided with his rights to counsel and indicated that he understood. He was provided with a caution and a secondary caution. His mother asked him if he had the paper with his lawyer’s number on it.

[16] This evidence as to what Ms. Duplessis said is hearsay. It was admitted not for the truth of its contents but to provide context as to how matters later unfolded.

[17] Mr. Musselman was co-operative with police. He used the powder room. He also went back upstairs.

[18] Mr. Musselman did not accept the white shoes his mother’s partner had offered him. He instead put on a gray pair of shoes.

[19] Mr. Musselman indicated he would speak to his lawyer at the police station. Mr. Musselman made a sudden movement and stepped into the garage. Sgt. Brennan stepped outside in front of the garage door. The door opened. Mr. Musselman was inhaling from a bong in the garage.

[20] Sgt. Brennan did not draw his weapon. Ms. Duplessis repeatedly asked her son what he was doing. Sgt. Brennan observed Mr. Musselman to be calm and cool in his demeanour.

[21] Constable Petepiece arrived with a police cruiser and placed Mr. Musselman under arrest and transported him to the police station at 474 Elgin Street. No threats or promises were made by Sgt. Brennan to encourage Mr. Musselman to speak to police. No force was applied in arresting him. He appeared oriented to time and place. He spoke very little and did not behave in an aggressive manner. Sgt. Brennan did not employ trickery in the arrest of Mr. Musselman.

[22] Cst. Petepiece arrived at the Orleans address in a marked cruiser at 5:20 a.m. He observed Mr. Musselman in the garage pulling a white bong from the shelf and taking a hit from the bong.

[23] He took custody of Mr. Musselman at 5:23 a.m., and he searched Mr. Musselman incidental to his arrest. He seized a lighter, cigarettes and a piece of paper with a phone number on it.

[24] He read Mr. Musselman his rights to counsel at 5:30 a.m. and advised him he was under arrest for murder. He read him his caution and the secondary caution.

[25] He read him the caution verbatim from his duty note-book, reminding Mr. Musselman that if he had spoken to anyone in authority it should not influence him in making a statement.

[26] He transported Mr. Musselman to the police station at 474 Elgin Street. He arrived at 5:45 a.m. Mr. Musselman was paraded and taken to the special constable area. Mr. Musselman changed into the buttoned jump suit provided. He had no difficulty in doing up the buttons.

[27] He called Ms. Calvinho who was Mr. Musselman’s counsel and left a message for her at 6:20 a.m. as there was no answer.

[28] Mr. Musselman asked to go to the washroom at 6:26 a.m. and he was taken to the washroom.

[29] Mr. Musselman said he would like to call Mr. Russomanno if Ms. Calvinho did not return the call. A message was left for Mr. Russomanno at 6:30 a.m. Mr. Musselman then decided to call duty counsel at 6:35 a.m. A duty counsel by the name of Murphy returned the call and spoke to Mr. Musselman at 6:50 a.m. At 7 a.m., Mr. Musselman had completed his call to counsel. He was lodged in cell 30.

[30] No threat or promises or inducements were made to Mr. Musselman by Cst. Petepiece. The officer and Mr. Musselman did not engage in conversation. He did not use violence against Mr. Musselman.

[31] There was an admission pursuant to s. 655 of the Criminal Code. It is admitted that the accused Donald R. Musselman was arrested for murder on June 8, 2019 and transported to the Ottawa Police Station at 474 Elgin Street, Ottawa where he was processed in the cell block and later interviewed by Det. Kevin Jacobs. After his arrival at the police station and before his interview by Det. Jacobs, Mr. Musselman was in contact with a number of persons including police officers and special constables. It is admitted that no police officer, special constable or other person who had contact with Mr. Musselman in the police station before his interview did or said anything that would raise a doubt about the voluntariness of the statement.

[32] Det. Benson delayed interviewing Mr. Musselman as he was aware that Mr. Musselman had taken a hit off a bong which presumably had marijuana in it, and also in light of the fact that it was the early morning hours.

[33] Det. Benson became aware that Mr. Musselman had not spoken to his counsel of choice. Ms. Calvinho had called at this point, and it was arranged that Ms. Calvinho would attend the police station and speak to Mr. Musselman in person at noon. Det. Benson escorted Mr. Musselman to the washroom. No threats or inducements were made by Det. Benson to Mr. Musselman. The time in the washroom was recorded to ensure there was a record of any communications between Det. Benson and Mr. Musselman.

[34] Mr. Musselman was interviewed by Det. Jacobs from 7:11 p.m. to 8:45 p.m. The interview was audio and video recorded.

[35] Det. Jacobs asked Mr. Musselman about being shot on a prior occasion. Mr. Musselman asked for a cigarette. Det. Jacobs indicates that he is an older cop and remembers the days of smoking in interview rooms. He says that he thinks he can get Mr. Musselman a cigarette.

[36] Det. Jacobs also provides him with a secondary caution.

[37] When Det. Jacobs explains to Mr. Musselman what is going to happen, he informs him he will be taken before a justice of the peace. He advises him that he is basically going to go before a judge and thereon after “we’ll see whether you have bail or trial…this is a sort of day one of the …of the long process of dealing with these situations, okay. So what…what’s your…do you have a specific concern about being released?

[38] Mr. Musselman replies that police did not tell him why he was being charged with murder and he did not know why.

[39] Det. Jacobs advises Mr. Musselman that this question is not for Det. Jacobs to answer. He has done this a thousand times, he said. He tells Mr. Musselman that it is really important that Mr. Musselman understand that he is the one sitting in the hotseat basically. Det. Jacobs says he has to make sure that things are done fairly and appropriately. “You know you have to be read your rights. That’s the way life is, okay, right now.”

[40] Mr. Musselman eventually asks again for a cigarette. Det. Jacobs said he would check on that in a second.

[41] Det. Jacobs attempts to engage Mr. Musselman in a discussion regarding incidents where Mr. Musselman was previously shot.

[42] Det. Jacobs responds that Mr. Musselman was not very co-operative, but police laid charges. He stated:

So there is gonna be a trial and then you know what’s gonna happen is that you’re. . . you’re gonna. . . you’re gonna go sit in a courtroom and say what happened or don’t say what happened. But they’re gonna ask you questions about it. I mean you know that, don’t you. That’s what they’re gonna try and do. They have a case. But you’re. . . you’re. . . you’re the victim. So, you know, they’re gonna ask you questions. A judge is gonna ask you questions. Lawyers are gonna ask you questions because they, you know, a guy’s been charged so. Does that make sense to you at all?

[43] When he asks what is going through Mr. Musselman’s mind, Mr. Musselman asks for a cigarette.

[44] Det. Jacobs says he will find out about the cigarette and leaves the room. He comes back and says that while there are no cigarettes available, he has a Backwoods cigar.

[45] Det. Jacobs asked Sgt. Brennan to go retrieve Mr. Musselman’s cigarettes from his property.

[46] Det. Jacobs explained that the police do not judge victims but investigate all serious crime. Mr. Musselman asks if he could get his Backwoods cigar. He asks for a light and begins to try and smoke the cigar.

[47] Det. Jacobs explained that police expect to have video surveillance footage, and that they have eyewitnesses.

[48] Mr. Musselman asks if the cigarettes are being retrieved.

[49] Det. Jacobs said that 100 per cent he got them. Mr. Musselman stubs out the cigar and asks for his cigarettes twice in a row.

[50] Det. Jacobs advises that there are no cigarettes in his property. Mr Musselman suggests that he could check again.

[51] Det. Jacobs says he has given him the Backwoods. He has given him options. Mr. Musselman asks if they can check for the cigarettes when they go back downstairs.

[52] Det. Jacobs says if there are cigarettes downstairs, they will come back up and sit while on video and have another smoke.

[53] Mr. Musselman asks to speak to his lawyer. Det. Jacobs tells him he can speak to his lawyer but does not specify when. He continues to try and question Mr. Musselman about what happened.

[54] Det. Jacobs tells Mr. Musselman that he had had the benefit of his lawyer’s advice and simple questions are being put to him. He tells Mr. Musselman this is not a complicated case by any stretch of the imagination. He states:

but you know having the ability to come up with an explanation as to the why, um, right now is. . . is really where people take you at your highest level of credibility, okay. Months into years down the road and you go in to testify at a trial, if you do, and say, you know, ‘I did it because of I was drunk, or I was high, or it was, you know, someone made me do it’, when a couple of years earlier you could’ve given an explanation as to why, people start having doubts about that, you know, so. And that really is all down to what sort of person you are, you know. That’s for you, that’s what you have to decide what you want to do, okay. Cause I get to walk out of here at the end of the day, okay.

[55] Det. Jacobs goes on to explain that there is absolutely no doubt in his mind that Mr. Musselman did it. He indicates that he knows the what, he just needs to know the why. He says this is something they can take back to the family so the family can understand. “They legitimately. . . ’cause quite often people. . . we don’t know the reasons why. It gets lost in the trial and all the lawyers on both sides discussing things and people guessing and all the rumour and all that sort of bullshit and we just want the truth, the real reason why. And you’re gonna have a long time to think about the reason why.”

[56] Shortly after this point, Mr. Musselman asks to speak to his lawyer again before he can provide any details. Det. Jacobs tells him he can speak to his lawyer again, but not right now.

[57] Det. Jacobs asks what he should tell Mr. Musselman’s parents. Mr. Musselman replies that he should tell them that he did not do it.

[58] Det. Jacobs offers to go locate the cigarettes. When he leaves, Mr. Musselman looks through a file which is left on the table. Det. Jacobs tells him he should not be looking through it when the file is closed.

[59] Det. Jacobs tells him that he will be sitting in front of a jury when someone will say that he shot her dad in the ByWard Market. He remarks that this evidence is going to be pretty powerful.

[60] Mr. Musselman then indicates he was with his girlfriend and not downtown. He asks again for his cigarettes. Det. Jacobs says they are not there, but that they will look for them when they go downstairs.

[61] Mr. Musselman asks what time court is and if he will be taken to the Ottawa-Carleton Detention Center. Det. Jacobs tells him he will not get bail straight away, but his lawyer will look into it: “that’s what normally happens is that they will try and get you out on bail before they even really look at the strengths and weaknesses of a case. . . And that is a discussion between you and your lawyer.”

[62] Mr. Musselman asks to speak to his lawyer. Det. Jacobs says he can call her downstairs.

[63] When Det. Jacobs leaves the room, Mr. Musselman says that he withdrew his incantation of anything he said while he was inside the room. He says this is something he saw on a tv show.

[64] He asks for another jumpsuit and his cigarettes.

[65] Mr. Musselman was 18 years old at the time of the interview. He was not of legal age to smoke cigarettes, but he did smoke. It was ill-advised to offer to provide him with cigarettes, or to give him a cigar. Mr. Musselman tended to fixate on the cigarettes, which tended to disrupt the interview. There is also the possibility that offering cigarettes could potentially be regarded as an inducement. In this case, I did not find that the cigarettes were offered as an inducement. It appeared the officer was attempting to be accommodating of Mr. Musselman. He also offered him a beverage. There was nothing improper about offering him a drink.

[66] Mr. Musselman was told that he could get a smoke afterward and they would come back to the video room. I was not satisfied that promises of a cigarette overbore his will and induced him to speak.

[67] A statement will be involuntary if it is the result of either “fear of prejudice” or “hope of advantage.”

[68] The analysis surrounding the confessions rule is contextual. Hard and fast rules cannot account for the variety of circumstances that vitiate the voluntariness of a confession. When reviewing a confession, the court must consider all relevant factors. The relevant factors for consideration include oppression, the operating mind requirement, police trickery, and threats or promises: see R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 47-48, 58, 63, 65.

Oppression

[69] The interview was not oppressive. Det. Jacobs was considerate of Mr. Musselman. The questioning was never hostile, aggressive or intimidating. Mr. Musselman’s physical needs were met. He was permitted to recover from ingesting marijuana in a bong before he was interviewed.

Operating Mind

[70] Mr. Musselman had an operating mind as per R. v. Whittle, [1994] 2 S.C.R. 914, at pp. 937, 939. Mr. Musselman appeared to understand what was being said to him. He communicated clearly.

Police Trickery

[71] There was no police trickery such that would shock the community. The law permits the police to rely on persuasion and even deception.

Subtle threats and promises

[72] A statement is involuntary if it is the result of either “fear of prejudice” or “hope of advantage” held out by persons in authority: see Oickle, at para. 24, citing Ibrahim v. The King, [1914] A.C. 599 (P.C.), at p. 609.

[73] As noted in Oickle, at para. 53, the more challenging decisions regarding determining whether a statement is voluntary or not do not relate to cases where outright violence is employed, but to cases like this one, whether the hope of advantage or fear of prejudice is subtle; where the threat is veiled.

[74] In Oickle, the court, citing The Honourable Fred Kaufman, The Admissibility of Confessions, 3rd ed. (1979), at p. 230, noted:

Threats come in all shapes and sizes. Among the most common are words to the effect that “it would be better” to tell, implying thereby that dire consequences might flow from a refusal to talk. Maule J. recognized this fact, and said that “there can be no doubt that such words, if spoken by a competent person, have been held to exclude a confession at least 500 times.” (R v. Garner (1848), 3 Cox C.C. 175, at p. 177).

[75] Confessions have been excluded where police have suggested that it would be better if the accused confessed: see Oickle, at para. 53, citing R. v. Desmeules, [1971] R.L. 505 (Que. Ct. Sess. P.).

[76] Using words to the effect of “it would be better if you told the truth” does not automatically warrant a finding that the statement was not made voluntarily: see Oickle, at para 54.

[77] Early in the interview, Det. Jacobs advised Mr. Musselman, when he asked, that “we will see whether you have bail or trial.” I believe Det. Jacobs may have been trying to say that Mr. Musselman may not have a bail hearing, or may not get bail, and may choose to go straight to trial. His comments must also be considered in light of what he said later about bail not being dealt with right away and that his lawyer would look into it. This latter comment would have put things into better perspective for Mr. Musselman.

[78] However, the original comment was somewhat ambiguous. Who the “we” being referred to is not clear. One possible misinterpretation of this comment is that there may not be a bail hearing, or that the police might have something to do with determining whether bail is granted. Mr. Musselman was 18 years old at the time. He may not have been aware that he had a constitutional right to reasonable bail. It would have been better for the officer to avoid ambiguous references to bail, lest these remarks be misconstrued by the accused.

[79] Det. Jacobs then talked about a pending trial where Mr. Musselman was the victim of a shooting.

[80] Det. Jacobs advised Mr. Musselman that the judge would have questions for him in that case where he was a victim. This was also an unfortunate remark. In the normal course, a trial judge may have no questions for a witness. Questioning is usually done by lawyers. This remark would tend to suggest to Mr. Musselman that the trial judge would be questioning witnesses in the trial where he was a victim. By extension he may have reasoned that he may be questioned by the trial judge as an accused person. While it is possible that it might happen, it is not likely.

[81] Det. Jacobs went on to tell Mr. Musselman that he had had the benefit of his lawyer’s advice and that simple questions were being put to him. He advised Mr. Musselman that this is not a complicated case by any stretch of the imagination. He suggested that Mr. Musselman, given the simplicity of the case, and having spoken to his lawyer, should recognize that his credibility is highest at the point when he is speaking to police.

[82] He made his point clear when he stated, “Months into years down the road and you go in to testify at a trial, if you do, and say, you know, ‘I did it because of I was drunk, or I was high, or it was you know, someone made me do it’, when a couple of years earlier you could’ve given an explanation as to why, people start having doubts about that you know. So.”

[83] Det. Jacobs asserts he has no doubt that Mr. Musselman did it, he just does not know why. He advises Mr. Musselman that “the why gets lost in the trial and all the lawyers on both sides discussing things and people guessing and all the rumour and all that sort of bullshit and we just want the truth. And you’re gonna have a long time to think about the reason why.”

[84] Shortly thereafter, Mr. Musselman asks again to speak to his lawyer. Det. Jacobs says he can, but not right now.

[85] Det. Jacobs’s remarks strongly suggested that Mr. Musselman’s credibility would be diminished if he maintained his right to silence. The message was that he may not be believed if he later testified at trial, if he did not speak to police first when he had an opportunity to do so.

[86] This is a form of legal advice which actually reverses the burden of proof. Mr. Musselman is not under any obligation to explain his actions at any time. The burden of proof rests with the crown throughout the prosecution.

[87] In essence, as in R. v. Krzyzewski, 2020 ONSC 6705, police weaponized the right to silence, using it as a tool to induce Mr. Musselman to speak to them.

[88] When taken with Det. Jacobs’s earlier comments, Mr. Musselman would have been left with the impression that he would not be believed if he chose to maintain his right to silence and later testified at trial. This is incorrect in law. In fact, this submission would not even be permitted in Mr. Musselman’s trial, as it is a submission which undermines the right to silence.

[89] This statement regarding integrity being at its highest during the interview and people having doubts about the truth if he chose to testify later undermined Mr. Musselman’s right to silence.

[90] Historically, the confessions rule was more concerned with the reliability of confessions than with the protection against self-incrimination. This no longer holds true in the post-Charter era.

[91] Both the confessions rule and the constitutional right to silence are manifestations of the principle against self-incrimination, which is a broad concept. It was described by Lamer C.J. as a “general organizing principle of criminal law” from which a number of rules can be derived, including the confessions rule and the right to silence: R. v. Jones, [1994] 2 S.C.R. 229, at p. 249; see also R. v. White, [1999] 2 S.C.R. 417, at para. 41.

[92] One of the paramount concerns of the criminal justice system is ensuring that the innocent are not convicted. It is recognized that involuntary confessions are more likely to be unreliable. Therefore, the confessions rule requires proof beyond a reasonable doubt of the voluntariness of any statement by an accused person to a person in authority before it may be admitted into evidence: see R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 29.

[93] While the confessions rule is primarily concerned with reliability, it is well established that voluntariness is a broader shorthand for a complex set of values: see The Honourable S. Casey Hill, David M. Tanovich & Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, loose-leaf, 5th ed. (Toronto: Thomson Reuters Canada, 2019), at 8:10:20. These values include respect for the individual’s freedom of will, the need for law enforcement to obey the law and the overall fairness of the criminal justice system: see Singh, at para. 30, citing Oickle, at paras. 69-70, citing Blackburn v. Alabama, 361 U.S. 199 (1960), at p. 207.

[94] On the question of voluntariness, the focus is on the conduct of the police and its effect on the suspect’s ability to exercise his or her free will. The test is an objective one. However, the individual characteristics of the accused are relevant for consideration in applying the objective test: see Singh, at para. 36.

[95] Where threats or promises operate to deny the accused of the right to silence, the jurisprudence has consistently protected the accused from having their involuntary statements introduced into evidence: see Oickle, at para. 69.

[96] In R. v. Van Wyk (1999), 104 O.T.C. 161 (Ont. S.C.), aff’d [2002] O.J. No. 3144 (Ont. C.A.) (R. v. Van Wyk, [2002] O.J. No. 3144 (Ont. C.A.)), Hill J. observed that an accused in the custody of the state is not only physically restrained, but also by virtue of restriction of liberty will have a diminished capacity to withstand the influences of others. At para. 149 of that judgment, Hill J. observed that:

At times the action of persons in authority may be strictly coercive, while on other occasions, the psychological pressures of those seeking further incriminatory evidence may be subtlety compulsive. Custody imports a relationship of dependency—the prisoner cannot walk away—the prisoner relies upon his or her jailers for not only the basic necessities of life, but also for civilized recognition of individual dignity associated with respecting a lawful refusal to cooperate in the creation of self-incriminatory evidence.

[97] In R. v. Bartle, [1994] 3 S.C.R. 173, at p. 191, Lamer C.J. observed that a person in custody is in a position of disadvantage relative to the state because he may be at risk of incriminating himself.

[98] In Van Wyk, the police suggested that they intended to have a quick interview with the accused and that they had a few questions for the bail package. The danger, as noted by Hill J., was that the accused may have been led to respond to police inquiries out of a desire to cooperate and to provide information in the hope of improving his chances of securing bail.

[99] In the case before me, as in Krzyzewski, the danger was that the accused was led to respond to police inquiries because he had been advised his credibility would be diminished if he asserted his right to silence. The inference being pressed upon Mr. Musselman is that if he exercised his right to silence, he may not be believed if he eventually testified.

[100] In Van Wyk, the court was critical of stratagems such as telling the accused that this was his opportunity to tell his story, including statements to the effect that his credibility was at its highest now, and an assertion that the prisoner would not be as credible ten months down the road at trial when he had spoken to lawyers. Justice Hill found that those types of stratagems, among others, were misleading to the accused as to the state of the law: see Van Wyk, at paras. 160-61.

[101] Police are on dangerous ground in purporting to provide legal advice as a persuasive means of leveraging a prisoner to refrain from remaining silent: see Van Wyk, at para. 161.

[102] In my view, the comments of Det. Jacobs, like those of the officer in Krzyzewski, fall squarely on this dangerous ground.

[103] Det. Jacobs advised Mr. Musselman that his credibility would be diminished if he asserted his right to silence. He advised him that the “why” would be lost in the trial with the involvement of lawyers. Again, this remark is somewhat ambiguous, but it tends to suggest that the “why” or Mr. Musselman’s explanation for doing what he is alleged to have done, will be lost with the involvement of lawyers at trial. While this remark is more ambiguous, and perhaps less fatal to the voluntariness of the statement than the other comment regarding credibility being at its highest when speaking to police, the statement must be looked at in totality. The cumulative effect of everything said by the officer must be considered.

[104] The suggestion that the credibility of an accused person is highest immediately after arrest, in a police interview, is incorrect in law: “It is clear that statements are neither more, nor less likely to be true based on a consideration of when they were made.”: Van Wyk at para. 162, citing R. v. B. (K.G.), [1993] 1 S.C.R. 740, at p. 770.

[105] The officer’s remarks strike at the very heart of both the right to silence and the right against self-incrimination. Mr. Musselman was told he may not be believed if he did not speak to police but later testified at trial. He was also advised that the “why” could get lost in the trial with the involvement of lawyers. He would have been left with the impression that his fair trial rights would be significantly prejudiced if he asserted his right to silence. Self-incrimination was presented as the only sensible choice to ensure that he was not disbelieved at trial. As a result, I was not satisfied beyond a reasonable doubt that the statement was made voluntarily.

Released: May 10, 2022 Anne London-Weinstein J.