COURT FILE NO.: CR-20-17

DATE: 2022/02/07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

STEPHANIE SLACK

Defendant

P. Lambert-Bélanger, for the Crown

G. Clark, for the Defendant

HEARD: December 20 - 22, 2021

REASONS FOR DECISION

eLLIES r.s.j.

OVERVIEW

[1] Stephanie Slack (“the accused”) is charged with trafficking in a controlled substance, criminal negligence causing death, and manslaughter relating to the death of Brandi Aultman. The Crown alleges that Ms. Aultman died from an overdose at her place of employment on August 21, 2018, shortly after purchasing fentanyl from the accused.

[2] In these pretrial motions, the Crown seeks a ruling that two statements made by the accused to the police, the first as a witness and the second as an accused, were given voluntarily. The defence challenges the voluntariness of the second statement and also applies to exclude it under s. 24(2) of the Charter on the basis that it was obtained in breach of the accused’s rights under ss. 8 and 10 of the Charter.

[3] In addition, the defence applies for a declaration that text messages obtained from a search of Ms. Aultman’s cell phone at the scene of her death were obtained in breach of the accused’s rights under s. 8 of the Charter. If granted, the defence submits that a warrant and a production order which were issued based on those text messages should be quashed and the evidence of the texts should also be excluded under s. 24(2).

[4] For the following reasons, I conclude that the statements were given voluntarily and that there was no breach of the accused’s rights under s. 10 in connection with the second statement. However, I also conclude that the search of Ms. Aultman’s cell phone at the scene violated the accused’s rights under s. 8. Excising those texts from the Information sworn to obtain the search warrant (the “ITO”) renders the warrant unreasonable. Because of the serious nature of the Charter-infringing police conduct and the significant impact it had on the accused’s rights, I conclude that admitting the evidence would bring the administration of justice into disrepute. Therefore, the evidence obtained under the warrant must be excluded under s. 24(2).

[5] Finally, I conclude that, if the defence wishes to proceed with its application as it relates to exclusion of the evidence obtained under the production order and of the second statement under s. 24(2), it will be necessary to hear further submissions.

FACTUAL BACKGROUND

The Death of Brandi Aultman

[6] The following summary is taken mainly from the ITO for the search warrant.

[7] Brandi Aultman was a 34-year-old hair stylist who had just started working at a salon in a mall in North Bay in August 2018. Ms. Aultman had a drug problem.

[8] Ms. Aultman and the accused were acquaintances, if not friends. The accused also had a drug problem, but was on a methadone program at the time.

[9] In the late afternoon hours of August 20, 2018, Ms. Aultman was found unconscious and unresponsive in a bathroom at her place of employment. Emergency personnel responded to a 911 call. Ms. Aultman was taken to the hospital, where she was pronounced dead.

Investigation at the Scene

[10] The 911 responders included Officer Dagg, of the North Bay Police Service. Officer Dagg seized and searched a brown leather purse that he was advised by employees at the salon belonged to Ms. Aultman. Inside, he found a Samsung mobile phone, among other things. The phone was on. It was not password protected or otherwise locked. Officer Dagg selected a text messaging app on the phone’s home screen and proceeded to review two strings of text messages. One of them was between Ms. Aultman and someone identified with the initials “”LC”. That individual was later identified as Lisa Cormier. The other was between Ms. Aultman and “SS”, who was later identified as the accused. According to the police, both strings related to the sale of drugs. Officer Dagg instructed the Forensic Identification Officer on scene to take screen shots of both strings of messages. Later that day, he examined the phone again at police headquarters and made notes of the two strings of text messages.

[11] In addition to obtaining the evidence of the text messages, the police interviewed employees of the salon and reviewed recordings of video surveillance taken by cameras at the mall. Piecing together these sources of information, the Crown alleges that Ms. Aultman was feeling unwell on the morning of August 20 because she needed drugs. While she was working, she texted both Cormier and the accused separately to inquire about purchasing drugs. According to the police, Ms. Aultman met with the accused at the driver’s door of the accused’s vehicle in the mall parking lot at about 4:13 p.m., after which Ms. Aultman returned to her place of employment. The Crown alleges that the texts show that Ms. Aultman purchased a quantity of fentanyl from the accused at that time.

[12] According to statements taken from two employees, the accused came into the salon at the time staff members there were trying to get into the bathroom to check on Ms. Aultman and calling 911. She identified herself as “Stephanie” to both employees. She gave her contact information to one employee to whom she said she wanted to book an appointment with Ms. Aultman. She told the employee that she and Ms. Aultman were friends and asked if Ms. Aultman was the person in the bathroom. According to the other employee, the accused came to the back of the salon where the washroom was located as the staff was trying to get in. According to both employees, the accused asked if they had something to help with drug overdoses. One of the employees recalled that she asked specifically if they had Naloxone, a drug used to temporarily reverse the effects of an opioid overdose.

The August 21, 2018, Interview

[13] The following summary is based mainly on the evidence of the witnesses called during the hearing of the motions.

[14] Officer Darcy Wall was assigned to the case on August 21, 2018. At the time, he was investigating three other suspected overdose deaths. He was briefed by another officer on the results of the investigation to that point, including the witness statements and the video surveillance. Although Officer Wall testified that he was not sure when he was made aware that they had seized a cell phone, I find it hard to believe he would not have been given this information and provided with information about the content of the text messages at the same time he was given information about the rest of the investigation. There is no reason on the evidence why he would not have been. According to his preliminary inquiry testimony, Officer Dagg prepared his report for submission to the criminal investigation section just after examining the contents of Ms. Aultman’s cell phone for a third time at police headquarters on the night of August 20, 2018. In any event, Officer Wall was aware of the text messages by the time he interviewed the accused, as the recording and transcript of that interview reveal (transcript, p. 16, l. 14).

[15] Officer Wall testified that, because she was one of the last people to have seen Ms. Aultman alive, he went to the accused’s residence with another officer at about 10:50 a.m. that day. The accused answered the door and the officer told her about Ms. Aultman’s death. He asked her to come to the police station to be interviewed, which she agreed to do. According to the ITO, the accused provided Officer Wall with the same cell phone number at that time as was used to send the texts to Ms. Aultman the day before.

[16] The accused had not yet attended by 12:55 p.m., so Officer Wall called her and left a message. The accused called back a short while later and left a message for the officer that she was looking for day care. He called back and offered to wait until the next day, but she advised she could not attend then and that she would arrange to attend that day.

[17] The accused attended the station later that afternoon with her children, who were cared for by staff at victim services. The accused was escorted to what Officer Wall described as a “soft” interview room, meaning a room designed to make interviewees as comfortable as possible. Officer Wall testified that the accused was not given a formal caution or rights to counsel because she was only a witness at the time. The defence does not allege that the accused was actually a suspect at this point or that she was detained during the interview.

[18] The interview lasted approximately 30 minutes. Both this interview and the later interview were video-recorded and played during the hearing. Transcripts have also been prepared, which the defence acknowledges are accurate, with the exception of some typographic errors.

[19] During the interview, the accused was asked about and discussed her relationship with Ms. Aultman and her own use of drugs. She told the officer that she had purchased a few packages of cigarettes for Ms. Aultman from an Indigenous vendor a few days before and that she attended the mall on August 20 to give them to her. She planned to drop by the salon to do so, but she and her daughter saw Ms. Aultman sitting outside one of the main entrances to the mall as they pulled in at sometime after 4 p.m. She told the police she had a discussion with Ms. Aultman at that time in which she told Ms. Aultman she would be coming into the salon to book at haircut with her. During the interview, she also told the officer that she had been at a family cottage in Gravenhurst earlier in the day.

[20] The Crown alleges that these two statements by the accused – that she was in Gravenhurst that morning and that she met with Ms. Aultman to give her cigarettes – are contradicted by the text messages and by the fact that there was only one package of cigarettes found among the personal belongings of Ms. Aultman at the scene of her death.

The Search Warrant and Production Order

[21] In October 2018, the police applied for a search warrant under the Criminal Code, R.S.C. 1985, c. C-46, permitting them to search the contents of Ms. Aultman’s cell phone for texts beginning on August 15, 2018. The ITO was sworn by Officer Greg McClenaghan. In it, Officer McClenaghan set out in full the text message strings that had been photographed at the scene. In addition, Officer McClenaghan laid out what the police believed to be a timeline of the events of the last few hours of Ms. Aultman’s life, based in large part on the contents of those texts.

[22] The warrant was granted and the cell phone was searched on October 29, 2018. The extracted texts were provided to Officer Wall, who then included them in the ITO he swore to obtain the production order in February 2019. In compliance with the production order, Bell Canada provided the accused’s (married) name as that of the subscriber for the phone number to and from which the texts in question were sent.

The April 30, 2019, Interview

[23] According to Officer Wall, by April 30, 2019, the police had reasonable and probable grounds to arrest the accused for trafficking in fentanyl. However, he did not plan on holding her in custody. To avoid a scene in front of her children, he wanted to arrest her at the police station. To that end, he called the accused at about 9 a.m. that day. The substance of that conversation and another one later that day is the subject of disagreement between the parties.

[24] According to Officer Wall, he asked the accused if she could attend the police station and she asked why. When he told her she was going to be arrested for trafficking in fentanyl, she replied, “What? What about my kids, will I be out when they are done school?” According to the officer, he told her that the sooner she got there, the sooner he could release her.

[25] Officer Wall testified that he called the accused again at about 10:30 a.m. because she had not yet arrived at the police station. He asked her if she was on her way in and believes she asked again if she would be released, to which he responded that she would. Unfortunately, however, the officer has no notes about this conversation.

[26] The accused attended the police station about a half-hour later. Before she did, however, she contacted and spoke with a lawyer. Shortly after she arrived at the station, the accussed was escorted from the reception area into the secure area, where she was placed under arrest. She was advised she was under arrest for trafficking and provided with the usual cautions. She was searched by a female officer and then escorted to an interview room. This time, however, the interview room was less “soft”. The accused was directed to sit at a small table away from the door and Officer Wall sat opposite her. The interview was video recorded from two angles. Like the first interview, this one lasted about 30 minutes.

[27] The Crown was uncertain when asked during argument what part of this interview it thought was inculpatory. The only potentially inculpatory statement I can discern was made during the following exchange, at p. 12 of the transcript:

POLICE OFFICER: And like I said, you know, it wasn’t just you, she was reaching out to someone else too and quite honestly I’ll just say it the way it, she was kind of harassing you guys throughout the day, like just boom, boom, boom, boom, boom with the texts non-stop and if you guys weren’t responding it’s like hello, hello, hello.

You know, I saw it, which shows kind of the power it had on her, right, her addiction. So it’s – it’s – you know, it’s sad. It’s – no one ever goes I don’t truly think wanting to hurt anyone. It’s, you know, she’s dope sick, okay, we’re going to help her out and it’s just unfortunate we don’t know – the reason I ask you about the amount is because of the reading that she had through her toxicology. So I honest to God I don’t know anything, I haven’t – I don’t know anything. I don’t know if you gave her a lot or if it’s a tiny bit, I don’t know. I remember the amount, I don’t know if you remember the amount, what she said that she could pay. Do you remember?

STEPHANIE SLACK: I – I’m not sure. I don’t – I don’t really want to talk about this.

POLICE OFFICER: Okay. Sure.

[28] The accused was released after the interview. In December 2019, she was re-arrested and charged with the additional offences of criminal negligence causing death and manslaughter. There is no evidence of any other statement being given by her.

ISSUES

[29] The issues in these pretrial motions are numerous. I will approach them as follows:

Regarding the Texts Retrieved at the Scene

(1) Did the accused have a reasonable expectation of privacy in the texts?

(2) If so, was the search reasonable as required by s. 8 of the Charter?

(3) If the search was unreasonable, what evidence should be excised from the ITO for the warrant and for the production order?

(4) When the evidence is excised from each ITO, does the remaining information provide reasonable and probable grounds to issue the search warrant and the production order?

(5) Should the evidence obtained under the search warrant and the production order be excluded under s. 24(2) of the Charter?

Regarding the Statements

(6) Was the August 2018 statement given voluntarily?

(7) Was the April 2019 statement given voluntarily?

(8) Was the April 2019 statement obtained in a manner that infringed the accused’s rights under s. 10(a) of the Charter?

(9) Was the April 2019 statement obtained in a manner that infringed the accused’s rights under s. 10(b) of the Charter?

(10) If there was a breach under s. 10 of the Charter, should the April 2019 statement be excluded as evidence under s. 24(2) of the Charter?

(11) If the search of the cell phone was unreasonable, did it taint the April 2019 statement?

(12) If the statement was tainted, should it also be excluded as evidence under s. 24(2) of the Charter?

ANALYSIS

Did the accused have a reasonable expectation of privacy in the texts?

[30] Section 8 of the Charter provides that:

Everyone has the right to be secure against unreasonable search or seizure.

[31] A person claiming the protection of s. 8 must establish a reasonable expectation of privacy in the subject matter of the search: R. v. Edwards, 2014 SCC 43, 2014 2 S.C.R. 212, at para. 16. Whether a claimant has a reasonable expectation of privacy must be assessed in the totality of the circumstances: Edwards, at paras. 31 and 45. This assessment involves four lines of inquiry:

(1) What was the subject matter of the alleged search?

(2) Did the claimant have a direct interest in the subject matter?

(3) Did the claimant have a subjective expectation of privacy in the subject matter?

(4) If so, was the claimant’s subjective expectation of privacy objectively reasonable?

See R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 32; R. v. Cole, 2012 SCC 53, [2021] 3 S.C.R. 34, at para. 40.

The Subject Matter of the Search

[32] In R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 20 and 111, the Supreme Court made it clear that the subject matter of a search or seizure of a string of text messages on a cell phone is not the phone itself but, rather, the conversation manifested in the messages. The remaining areas of inquiry center on that conversation.

The Accused’s Interest in the Texts

[33] Not every exchange of texts will give rise to an interest protected by s. 8 of the Charter. What matters is the information contained in the texts: R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 50; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at paras. 30-31. The more personal the information, the greater the privacy interest.

[34] The texts in this case contained personal information about the accused provided by her to Ms. Aultman. This included information about her activities that day, those of her children, and her children’s needs. According to the Crown, it also included details about a drug transaction. The accused therefore had a direct interest in the texts.

The Accused’s Subjective Expectation of Privacy in the Texts

[35] During the hearing, the accused testified that she and Ms. Aultman explicitly discussed on numerous occasions that they would not disclose their text messages to anyone. I find this difficult to believe. This is not something that people usually discuss, certainly not repeatedly. There was no evidence about the context in which these discussions allegedly took place which might have made the evidence more believable by explaining why this subject kept coming up.

[36] Nonetheless, based on the content of the messages and the relationship between the accused and Ms. Aultman, I accept that the accused had a subjective expectation of privacy in the texts, even though I reject the evidence that she and Ms. Aultman specifically discussed the subject on numerous occasions.

The Objective Reasonableness of the Accused’s Subjective Expectation

[37] This area of inquiry split the Supreme Court in Marakah.

[38] In Marakah, the accused had sent text messages to another individual with whom the police believed the accused was involved in illegal firearms transactions. During the execution of search warrants obtained to search their homes, the police seized their cell phones, searched them, and found incriminating messages.

[39] A majority of the court held that the accused had a reasonable expectation of privacy in the messages and excluded them as evidence under s. 24(2) of the Charter. Writing on behalf of the plurality, McLachlan C.J. addressed the concern of the minority that the majority’s reasoning would lead inevitably to the exclusion of text messages sent by criminals to their victims by pointing out that not all applications under s. 8 are bound to succeed: para. 51. That may be true, but I am unable to see any basis on the facts of this case why it should not.

[40] Taken in their least inculpatory context, the text messages represented a conversation between two people who knew each other well enough that the accused used her child’s first name in corresponding with the accused and the accused knew precisely where Ms. Aultman was working. Viewed more forensically, the Crown relies on the messages as evidence of an agreement to traffic in a dangerous drug. In either context, it would be reasonable for the accused to expect the information would remain private.

Conclusion on this Issue

[41] The accused had a reasonable expectation of privacy in the text messages exchanged between her and Ms. Aultman such that she is entitled to challenge the search of Ms. Aultman’s cell phone and the use of that search in obtaining a warrant and a production order.

Was the search reasonable as required by s. 8 of the Charter?

[42] The search of the cell phone by Officer Dagg at the scene was a warrantless one. Therefore, the onus of demonstrating that it was reasonable lies with the Crown: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278. As the Supreme Court held in Collins, a search will be reasonable where it is authorized by law, where the law itself is reasonable, and where the manner in which it is carried out is reasonable. The issue here is with the first of these three requirements. The Crown submits that Officer Dagg had both statutory and common law authority to search Ms. Aultman’s cell phone. I am unable to agree.

[43] Both in the ITO for the warrant and at the preliminary inquiry, Officer Dagg said that he searched Ms. Aultman’s cell phone on behalf of the coroner. He testified at the preliminary inquiry (transcript, p. 245, l. 1):

Q. Okay. Is there – I don’t mean this in a critical way, just in a very open-ended way, did you consider yourself to have any particular legal authority when you were looking at – at the contents of the cell phone?

A. At that time I felt as though I was acting under the authority of the coroner in attempting to determine any kind of circumstances around Ms. Aultman’s death at that time.

[44] In the ITO, Officer McClenaghan wrote, at para. 36:

In his written notes, Constable Dagg provided the following information with respect to the search and seizure of Brandi Aultman[‘s] mobile phone:

b) He examined the contents of Aultman’s cell phone and was acting under the authority of the Coroner’s Act and assisting the Coroner in his/her investigation into the circumstance that led to Aultman’s death when he did so. He was attempting to establish a timeline of events – and/or time of death – surrounding Aultman’s death by identifying when she last used or accessed her cell phone.

[45] The Crown submits that Officer Dagg was empowered to do what he did under the Corners Act, R.S.O. 1990., c. C.37. The relevant sections of that Act read:

15 (1) Where a coroner is informed that there is in his or her jurisdiction the body of a person and that there is reason to believe that the person died in any of the circumstances mentioned in section 10 [including a sudden and unexpected death], the coroner shall issue a warrant to take possession of the body and shall examine the body and make such investigation as, in the opinion of the coroner, is necessary in the public interest to enable the coroner,

(a) to determine the answers to the questions set out in subsection 31 (1);

(b) to determine whether or not an inquest is necessary; and

(c) to collect and analyze information about the death in order to prevent further deaths.

16 (1) A coroner may,

(a) examine or take possession of any dead body, or both; and

(b) enter and inspect any place where a dead body is and any place from which the coroner has reasonable grounds for believing the body was removed.

(2) A coroner who believes on reasonable and probable grounds that to do so is necessary for the purposes of the investigation may,

(a) inspect any place in which the deceased person was, or in which the coroner has reasonable grounds to believe the deceased person was, prior to his or her death;

(b) inspect and extract information from any records or writings relating to the deceased or his or her circumstances and reproduce such copies therefrom as the coroner believes necessary;

(c) seize anything that the coroner has reasonable grounds to believe is material to the purposes of the investigation.

(3) A coroner may authorize a legally qualified medical practitioner or a police officer to exercise all or any of the coroner’s powers under subsection (1).

31 (1) Where an inquest is held, it shall inquire into the circumstances of the death and determine,

(a) who the deceased was;

(b) how the deceased came to his or her death;

(c) when the deceased came to his or her death;

(d) where the deceased came to his or her death; and

(e) by what means the deceased came to his or her death.

[46] The principal difficulty I have with the Crown’s reliance on the Coroners Act is that there is no evidence whatsoever that Officer Dagg had been given authority by the coroner to do what he did.

[47] According to Officer Dagg’s testimony at the preliminary inquiry, the first time the coroner was even mentioned the day of Ms. Aultman’s death was at 19:34 hours when he spoke with another police officer by phone, who told him only that the coroner, Dr. Seguin, would be attending the scene. However, Officer Dagg searched Ms. Aultman’s cell phone not long after he arrived at the scene, at 17:55 hours, and instructed the forensic identification officer to take photos of the two streams of text messages at 20:15 hours. There is no evidence that, even when he did attend the scene at 20:34 hours, Dr. Seguin instructed Officer Dagg to search the cell phone.

[48] Put simply, the police cannot appropriate for themselves the investigative powers of the coroner under the Coroners Act. A police officer must be given the coroner’s authorization under s. 16(3) of the Act before he can exercise the coroner’s powers of search and seizure. Officer Dagg had no such authorization in this case.

[49] The Crown’s submission that Officer Dagg had common law authority to do what he did is on no firmer ground.

[50] In R. v. Sanderson, 2000 CarswellOnt 2087, Dambrot J. held that a police officer has authority at common law to preserve the scene of a sudden death. He wrote, at para. 41, that:

a police officer who is lawfully in a place where a sudden death has occurred, or to which the body of a person who has died suddenly has been moved, is authorized by the common law, while awaiting the arrival of the coroner, to preserve the scene of the sudden death

for the coroner, and at least the things that are present at the scene that are associated with Ms. Aultman.

[51] I agree wholeheartedly with my colleague. But what Officer Dagg did here went beyond preserving the scene. He conducted a search. I do not accept the evidence he gave at the preliminary inquiry that he instructed the identification officer to photograph the two strings of text messages because he “wasn’t aware if they would be somehow lost or able to be wiped remotely by some means” (transcript, p. 231, l. 24). There is no evidence that would support Officer Dagg’s concerns and cell phones with text messaging apps are too ubiquitous to be so easily misunderstood.

[52] For these reasons, I am unable to accept the Crown’s submission that Officer Dagg was acting lawfully under either the Coroners Act or the common law when he searched Ms. Aultman’s cell phone. The search, therefore, was unreasonable and infringed the accused’s rights under s. 8 of the Charter.

If the search was unreasonable, what evidence should be excised from the ITO?

[53] Where evidence is obtained in violation of an accused’s Charter rights and later included in an ITO, that evidence must be excised from the ITO, without regard to whether it should also be excluded as evidence under s. 24(2) of the Charter: R. v. Jaser, 2014 ONSC 6052, at para. 24; R. v. Lam, 2015 ONSC 2131, at para. 55. The reviewing court must then determine whether the remaining information was sufficient to justify issuing the warrant: R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223; R. v. Wiley, 1993 CanLII 69 (SCC), [1993] 3 S.C.R. 263; R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281. Under both s. 487 of the Criminal Code and s. 8 of the Charter, a search warrant can only be issued where there are reasonable and probable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the search: Canada (Director of Investigation and Research, Combines Investigation Branch), v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 (“Hunter”). As the Supreme Court held in Hunter, reasonable and probably grounds will arise where credibly-based probability supplants suspicion: p. 167.

[54] The Crown submits that, even if I find that the text messages sent to and from the accused were obtained in breach of the accused’s Charter rights, I should not excise the information about the texts sent to and from Lisa Cormier. The Crown submits that the accused has no standing to challenge the search by Officer Dagg as it relates to those texts: Wyke v. R., 2021 QCCA 102, at para. 9.

[55] The Crown’s submissions on this issue were made mainly in its responding factum. Perhaps for that reason, I have not had the benefit of any submissions from the defence on the issue. Wyke may be distinguishable. In Wyke, at para. 13, the Quebec Court of Appeal emphasized that the appellant had no standing because he had not challenged the warrant which had been issued for the search of the cell phone in question. That is not the situation here.

[56] Nonetheless, the defence appears to accept the Crown’s submission on this point. As an aid to argument, Mr. Clark provided the court with a copy of the ITO for the search warrant in which only the evidence of the Aultman/Slack texts has been redacted.

[57] In any event, I need not determine whether the Crown is correct because, as I will explain, even if the information about the texts between Ms. Cormier and Ms. Aultman is not excised from the ITO, it would still not have been reasonable to issue the warrant to search for texts between the accused and Ms. Aultman.

When the evidence is excised from the ITO, does the remaining information provide reasonable and probable grounds to issue the search warrant and the production order?

[58] The results of the search of Ms. Aultman’s phone formed the foundation upon which the ITO was built. To give some indication of the extent to which the texts were relied upon, it will suffice to set out three of the five paragraphs that comprised the “Investigative Overview” at p. 3 of the ITO:

Police examined Aultman's cell phone and viewed two text message streams between her cell phone and two other persons that investigators believed to be Lisa Cormier and Stephanie Slack. The content or subject matter of the text messages was - in the opinion of the police officer conducting the search - drug-related and suggestive of drug trafficking (Aultman attempting to purchase drugs).

Investigators seized Aultman's cell phone and have maintained custody of it since its seizure on August 20th 2018 in the Exhibits Room-Room #212 - at North Bay Police Service Headquarters, 135 Princess Street West, North Bay, Ontario.

In accordance with the recent Supreme Court of Canada ruling in R v Marakah where the Court concluded that text message conversations can attract a reasonable expectation of privacy, including in those messages sent (sender), police are seeking a search warrant pursuant to section 487(1) of the Criminal Code to allow police to conduct a software-aided forensic examination of Aultman's cell phone that will result in the downloading or extraction and copying of text messages between her and Cormier and her and Slack in support of the substantive offences being alleged in this affidavit.

[59] As I have mentioned, the entire string of text messages was set out in full in the ITO and a timeline was constructed based in large part on those texts. In addition, the ITO included the “non-expert” opinion of a police officer that the text messages were evidence of agreements to traffic drugs.

[60] The Crown submits that the warrant could have been issued without the Aultman/Slack texts. It points to additional information in the ITO, including:

(a) that the deceased had been attempting to buy drugs from Cormier during the day (: para. 54(d));

(b) that the deceased was able to obtain fentanyl sometime between 3:39 p.m. when she is seen on video re-entering the mall from a meeting with Cormier and 4:21 p.m. when she texted Cormier “I got a tiny bit to hold her over but let me know when you are on you’re [sic] way back xo” (: para. 54(e));

(c) that the video shows the deceased speaking with the accused who is in her vehicle at 4:13 p.m. in the parking lot at the mall (: para. 54(f)) [for the purposes of my analysis, I will ignore the additional information that the police were unable to identify the vehicle or its driver from the video surveillance footage alone (: para. 50) and that the police proceeded on the assumption that the video time stamps were wrong, without explaining in the ITO exactly why (: para.52; footnotes 42 and43)];

(d) that the accused asked whether the hair salon had access to Naloxone or some other opioid-overdose treatment when she learned that the deceased was the person in the washroom later (: paras. 67 and 93(g-i));

(e) and that the accused admitted that she and the deceased communicated through text messages (: para. 93(s)).

[61] As the Crown also points out, this is not the only evidence in support of request for the warrant. I have also considered:

(f) the information of the non-expert police officer that “drug traffickers often use text messaging through cell phones to communicate with customers and to do business” (: para. 124(a)); and

(g) the information that the accused told the police she had dropped off several packages of cigarettes to the deceased, but that only one package of cigarettes (opened) was found at the scene (: para. 94(d)).

[62] However, a judicial official asked to issue a warrant must consider all of the information in context and not in isolation. The ITO also contained information:

(h) that the video surveillance at the mall did not capture all of the deceased’s movements on the day of her death, but only captured them “to a large extent” (: para. 51);

(i) that the accused and the deceased had known each other for five to six years (: para. 93(b));

(j) that the accused had cared occasionally for the deceased’s daughter (: para. 93(c));

(k) that the accused was aware that the deceased abused fentanyl (: para. 93 (d));

(l) that the accused was trying to book an appointment with the deceased and was told that the deceased was the person in the bathroom at the time she asked about opioid overdose treatments (: paras. 29(i)-(k), 93(l)-(n));

(m) that although the accused has a criminal record, it does not contain any convictions for drug-related offences (: para. 122).

[63] I agree that this information, considered as a whole, supports the reasonable possibility that the accused gave the deceased some fentanyl when she spoke to her in the parking lot at the mall. But that is all it does. What tips the scales and moves the needle from a credibly-based possibility that the accused was involved in a drug transaction, rather than a mere discussion with her friend and hair-stylist, to a credibly-based probability that she was trafficking in fentanyl are the texts. They establish the purpose of the meeting by including the following texts from the deceased to the accused:

• “I’ll keep the money on me so you could run in if need be cause I don’t have another break till like 4 prob” (1:18 p.m.)

• “If you come to the salon I’ll meet you in the hallway and we will pretend to book an appointment” (1:38 p.m.)

• “Meet me at the doors where you met me before k” (time unknown, but between 4:08 and 4:09 p.m.)

• “Okie well I still gotta do that outside it’s too open here” (4:11 p.m., in response to a text from the accused that she is going to come in to book an appointment with the deceased)

• “Thanks again!” (4:21 p.m.)

[64] In my view, without the link to illegal activity provided by these texts, the warrant could not have been issued to search the deceased’s cell phone for evidence of a drug transaction between the deceased and the accused. The search warrant therefore violated the accused’s right to be free from unreasonable searches under s. 8 of the Charter.

[65] Unfortunately, I am not in a position to decide this issue as it relates to the production order. Although the defence seeks the same declaration regarding the production order, it has not fully addressed the issue in either its factum or its oral argument. The ITO for the production order contained additional information to that provided in the ITO for the warrant. For example, in the ITO for the production order, the affiant set out information from a former partner of Ms. Aultman’s (Thomas Brown) that Ms. Aultman used to arrange to buy drugs through text messages and used to meet people at work for that purpose. The specifics of the ITO for the production order have not been addressed by either party.

[66] It may be that the defence will not wish to pursue its position regarding the production order because the information produced in compliance with it (the identity of the accused as the user of the cell phone) was obtained in a couple of other ways during the course of the investigation. If it does, however, it will be necessary to set a date for further submissions through the office of the trial coordinator.

Should the evidence of the search of the cell phone be excluded under s. 24(2) of the Charter?

[67] The Crown cannot rely on the results of the search of Ms. Aultman’s cell phone at the scene given Officer Dagg’s evidence that he was acting under the authority of the Coroners Act at that time. Where that is true, the evidence can only be used for the purposes of that Act and not for the purposes of a criminal prosecution: R. v. Colarusso, 1994 CanLII 134 (SCC), [1994] 1 S.C.R. 20, 1994 CarswellOnt 50, at para. 39. Instead, the Crown must rely on results of the search that was authorized by the warrant: Colarusso, at para. 36.

[68] As I have found that the search of the cell phone on August 20, 2018, was unreasonable and that the warrant could not have been issued without the results of that search, the question becomes whether the evidence obtained under the authority of the warrant should be excluded under s. 24 of the Charter. That section provides:

24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[69] The analysis under s. 24(2) requires a court to determine the admissibility of unconstitutionally obtained evidence by considering three “avenues of inquiry”:

(1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct);

(2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and

(3) society’s interest in the adjudication of the case on its merits

: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71.

Seriousness of the Charter-Infringing Conduct

[70] As the Supreme Court reiterated in Marakah, the court’s task in considering the seriousness of the state’s Charter­-infringing conduct is to situate it on a scale of culpability, with “inadvertent or minor violations” at one end and “wilful or reckless disregard of Charter rights” at the other: para. 61. In my view, the Charter-infringing conduct in this case lies at the wilful/reckless end of the spectrum.

[71] To begin, I have difficulty accepting that Officer Dagg “felt” he was acting under the Coroners Act in the circumstances as they existed when he arrived at the scene. According to his evidence at the preliminary inquiry, Officer Dagg made the following observations at the scene, among others, before his first search of Ms. Aultman’s cell phone:

• white residue on the floor of the bathroom in which Ms. Aultman had been found unconscious;

• a gold piece of paper and a cigarette lighter also on the bathroom floor; and

• two pink-coloured straws inside one of the compartments of another purse belonging to Ms. Aultman.

[72] By the time he examined the phone a second time at the scene, he had also observed in Ms. Aultman’s purse:

• a small “dime” bag which appeared to have white residue inside of it; and

• a piece of burnt tinfoil.

[73] By the time Officer Dagg again examined the cell phone that night at police headquarters, he had also been advised by the store manager and one of Ms. Aultman’s co-workers that Ms. Aultman:

• was suspected of stealing money from the cash register;

• took frequent breaks; and

• showed signs of being unwell,

all of which were consistent with the use of illegal drugs, which drugs had to come from somewhere.

[74] Further, during his interview with the accused the day after Ms. Aultman’s death, Officer Wall told her that the police had been investigating other overdose deaths that had occurred in the past two months (transcript, p. 14, l. 30). As a member of the same small city police force, Officer Dagg had to know this.

[75] In these circumstances, I find it hard to believe that Officer Dagg was not conducting a criminal investigation when he searched Ms. Aultman’s cell phone at the scene. I find it even harder to believe he was not conducting one when he searched it again later that day. If so, it ought to have been clear to Officer Dagg that he could not use the search powers under the Coroner’s Act to further his investigation. This has been the law since Colarusso was decided in 1994.

[76] Even if I accept Officer Dagg’s evidence that he believed he was acting under the Coroners Act, it was a serious infringement of the accused’s rights so to act without being directed to do so by the coroner himself. It was made all the more serious because, as Officer Dagg admitted during the preliminary inquiry (transcript, p. 227, l. 24), he took it upon himself to determine the “circumstances surrounding Ms. Aultman’s death”, a determination that only the coroner can make under the Act.

[77] Contrary to the submission of the Crown, I do not view the officer’s conduct as being mitigated by the fact that Ms. Aultman was dead. Indeed, that fact may make the conduct worse. I doubt that many of us would want our cell phones searched by the police after we die.

[78] The result of this line of inquiry strongly favours exclusion of the evidence.

Impact of the Charter-Infringing Conduct on the Accused’s Charter-Protected Interests

[79] Marakah is instructive not only with respect to the scope of the s. 8 Charter right in the context of text messaging, but also on the analysis under s. 24(2) in that context. The Supreme Court held in Marakah that the effect of the unreasonable search on the accused’s rights under s. 8 “was not just substantial; it was total”: para. 67. As the majority wrote, at para. 68:

It cannot be that the impact on an accused’s Charter-protected interests is less serious when an electronic conversation is illegally accessed through someone else’s phone than when the same conversation — in which the accused has the same Charter-protected interest — is illegally accessed through the accused’s own phone. A search may impact other, different Charter-protected interests of the accused if it is his phone that is examined. But, so far as the impact on the accused’s privacy interest in the electronic conversation is concerned, the two scenarios just described are indistinguishable.

[80] The same can be said in this case. If, as the Crown alleges, the texts in question constitute strong evidence of illegal activity on the part of the accused, it is hard to see how the impact of the unreasonable search on the accused in this case is not just significant as it was on the accused in Marakah.

[81] The result of this line of inquiry also strongly favours exclusion.

Society’s Interest in the Adjudication of the Case on Its Merits

[82] There is no doubt that society’s interest in the adjudication of this case on its merits is significant. That is especially so here in North Bay where, as the evidence in these motions shows, there is a very serious problem with fentanyl addiction and overdose deaths.

[83] There is also no doubt that excluding the evidence of the texts will have a strong negative effect on the Crown’s case.

[84] However, as Doherty J. recognized in R. v. McGuffie, 2016 ONCA 365, at para. 63, if the first and second lines of inquiry make a strong case for exclusion, the third line of inquiry will seldom, if ever, tip the balance in favour of admissibility. That is true here. In my view, in light of the seriousness of the Charter-infringing conduct and its impact on the accused’s rights, to admit the evidence would do more harm to the repute of the justice system than will excluding it.

Was the August 2018 statement given voluntarily?

[85] I turn now to the issues surrounding the statements. Fortunately, I can deal with the first one quickly.

[86] Whenever an accused person makes a statement to a person in authority, the statement is presumptively inadmissible. It may only be admitted where the Crown establishes beyond a reasonable doubt that the statement was made voluntarily: R. v. Godday, 2013 ONSC 1298, at para. 46. This is known as the “confessions rule”.

[87] In R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, the Supreme Court of Canada engaged in a detailed review of the confessions rule. As Iacobucci J. held on behalf of the majority of the court, the rule is concerned not only with the reliability of confessions, but also with the integrity of the criminal justice system. At para. 47, Iacobucci J. pointed out that, while the variety of circumstances that might affect the voluntariness of a confession prevents any hard and fast rules, those circumstances can be broken down into four areas, namely:

(a) the presence of threats or promises;

(b) the existence of oppressive circumstances;

(c) the absence of an operating mind on the part of an accused; and

(d) the use of police trickery.

[88] Although the defence does not concede the voluntariness of the August 2018 statement, it does not suggest that any of these circumstances were operating so as to vitiate the statement and I can find no evidence that any of them were. Officer Wall testified that he offered no promises and made no threats prior to the accused attending to give the statement and there is no evidence to the contrary. There is nothing in the evidence of the events leading up to the giving of the statement nor is there any evidence of what occurred during the giving of the statement from which one might infer that any vitiating circumstances were operating. The accused appears relaxed in the video, even laughing at times. Nothing is said by either the officer or the accused from which it could be inferred that the statement was anything other than voluntary.

[89] Based on the evidence, I have no doubt that the August 2018 statement was given voluntarily.

Was the April 2019 statement given voluntarily?

[90] The accused’s evidence on what was said by Officer Wall when he called her on the morning of April 30, 2019, differs from that of the officer. According to the accused, after she asked Officer Wall whether she would be released before her children finished school, he replied “something to the effect of ‘if you get in here soon/quickly enough to talk to us then yes you'll be out in time to pick up your kids, but if you want to set something else up instead go ahead’". Based on this conversation, the accused deposes that she believed that the police wanted her to come into the police station to speak to them and that, if she complied, she would be released rather than being held in custody.

[91] I am unable to accept the accused’s evidence about her belief, for three reasons. The first two relate specifically to what occurred during the interview. The third relates more generally to the accused’s credibility.

[92] At the outset of the interview, Officer Wall set out the events that led to the accused attending at the police station. At p. 1 of the transcript, he says:

POLICE OFFICER: Just to cover off what’s happened before we get into anything. I phoned you this morning, asked you to come in, you asked why and I said you were going to be arrested for trafficking fentanyl. You said you needed to make some arrangements and you were concerned about getting your kids off the bus. So I told you okay, if you can come in quickly then I will release you today. Okay. So I’m saying right on camera, so you know I’m not lying to you. I called you back an hour and a half later because I hadn’t heard from you and you said you’d come in quickly, so you did. Basically my partner, Stacey Jackson, and I went downstairs called you into the hallway for privacy, I placed you under arrest for trafficking fentanyl, I gave you your rights to counsel and your cautions, you indicated that you understood and did not want to speak to a lawyer. I told you if that changes at any time you just let me know, okay. So after that we brought you into the booking area, Detective Constable Erin Pemberton gave you a quick search, we allowed you to keep your coffee and we came straight up here. You didn’t enter a cell or anything, we just came up here for – for a statement. Does that sound right?

STEPHANIE SLACK: Yes.

[93] During the hearing, the officer testified that he never mentioned giving a statement when he spoke to the accused earlier in the day about coming to the police station. The history set out by Officer Wall supports that evidence. The accused did not disagree with that history during the interview. There is nothing in the history that would support a belief by the accused that what the police wanted was a statement, rather than simply to arrest her.

[94] If, however, there was anything said before the accused attended at the police station that might have caused her to believe she had to give a statement in order to be released, this was clarified by the officer shortly after the exchange set out above, when the officer stated (at p. 2):

POLICE OFFICER: … I’m going to tell you right off the bat that if you have spoken to any other police officer or anyone else in any type of position of authority I don’t want it to influence you in making a statement, okay. I don’t want you to feel pressured to make a statement, I don’t want you – I offered you no promise or anything. Okay. The only thing I’ve told you, as I tell anyone in that situation, that you are going to be released because you have an issue with your children. You wanted to know if you had to arrange to have them picked up and I said no, that would be good. I don’t want that to influence you in talking to me in any way, ‘cause you don’t have to. Okay.

[95] The conduct of the accused throughout the interview suggests that she understood and accepted this. Throughout the interview, the accused held her ground when pressed for information about the allegations. This is the second reason why I cannot accept her evidence that she believed she would only be released if she gave a statement. The accused showed no signs of feeling compelled to give a statement during the interview. On one occasion, at p. 7, the following exchange occurred:

POLICE OFFICER: Okay. I’ll be blunt, I do have a phone conversation between the two of you, lots of messaging obviously. Now the day that – that you showed up at the mall, I think she referenced that she got an O-bit (ph) to hold her over. Do you remember how much you gave her?

STEPHANIE SLACK: I’d really rather not talk about anything.

[96] On another, at p. 21, this was the conversation:

POLICE OFFICER: Would you tell me where you got it [the drugs] that time? The stuff that Brandi took?

STEPHANIE SLACK: I don’t want to talk about anything until I can talk to a lawyer.

[97] Finally, as I have explained, the accused’s credibility suffered during the hearing when she testified about her expectation of privacy in the texts that were retrieved at the scene. I disbelieve her evidence that she and Ms. Aultman repeatedly discussed their expectations of privacy. While I am free to accept other parts of her evidence, I do not accept this part because it conflicts with the other evidence I have mentioned.

[98] For these reasons, I am unable to accept the submission that the statement should be excluded because the accused felt compelled to speak to the police for fear of being kept from her children. On all the evidence, I am not left with any doubt about the voluntariness of the statement and it is, therefore, admissible.

Was the April 2019 statement obtained in a manner that infringed the accused’s rights under s. 10(a) of the Charter?

[99] Sections 10(a) and (b) of the Charter read:

10 Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right;

[100] On behalf of the accused, counsel argues that his client was not properly informed of the reason for her detention under s. 10(a) at the time she was first detained, as a result of which the accused was not able to properly exercise her right under s. 10(b) to retain and instruct counsel. While I agree that a failure by the police to properly fulfill the duty under s. 10(a) may also give rise to a breach of s. 10(b), I do not agree that there was any such failure here.

[101] In R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, McLachlin J. (as she then was) made clear the relationship between ss. 10(a) and (b) of the Charter, when she wrote, at para. 26:

The right to be promptly advised of the reason for one’s detention embodied in s. 10(a) of the Charter is founded most fundamentally on the notion that one is not obliged to submit to an arrest if one does not know the reasons for it: R. v. Kelly, 198544 C.R. (3d) 177 O.A.C. 4617 C.C.C. (3d) 41912 C.R.R. 354(C.A.), [C.C.C.] at p. 424. A second aspect of the right lies in its role as an adjunct to the right to counsel conferred by s. 10(b) of the Charter. As Wilson J. stated for the Court in R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, 70 C.R. (3d) 97, 98 N.R. 281, 93 N.S.R. (2d) 35, 242 A.P.R. 35, 50 C.C.C. (3d) 1, 47 C.R.R. 171 [S.C.R.] at pp. 152–153 [S.C.R., p. 108 C.R.], “[a]n individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy.” In interpreting s. 10(a) in a purposive manner, regard must be had to the double rationale underlying the right.

[102] The Court of Appeal expanded upon the relationship between ss. 10(a) and (b) in R. v. Nguyen, 2008 ONCA 49. After reviewing the jurisprudence regarding the purpose behind each section, the court stated, at para. 20:

It is clear, therefore, that while the main purpose of s. 10(a) is to inform an individual of why he or she is being detained, it also has an important secondary aspect as an adjunct to the right to counsel conferred by s. 10(b). Specifically, the purpose of s. 10(a) is also to inform an individual of the extent of his or her jeopardy such that he or she can exercise the right to counsel conferred by s. 10(b) in a meaningful way. The purpose of s. 10(b), in turn, is to ensure that an individual subject to detention or arrest understands his or her right to silence and can make a meaningful choice about whether to exercise it: R. v. Hebert (1990), 1990 CanLII 118 (SCC), 57 C.C.C. (3d) 1 (S.C.C.).

[103] On behalf of the accused, Mr. Clark submits that his client was detained psychologically when Officer Wall asked her to come to the police station to be arrested. He submits that the officer ought to have advised her at that time that the charge related to Ms. Aultman’s death. Mr. Clark submits that, although his client contacted a lawyer after the call and before she went to the police station, the officer’s failure to advise her that the charge related to Ms. Aultman’s death meant that she did not know the extent of her jeopardy and therefore could not exercise her right to counsel in a meaningful way. He submits that the accused would have no way of knowing that the offence with which she was being charged related to the death of Ms. Aultman. Mr. Clark submits that the offence of trafficking can be committed merely by sharing one’s drugs with another person. He submits that the accused was in a methadone program and could have shared her methadone with any number of people.

[104] The Crown submits that the accused has failed to establish that she was psychologically detained once Officer Wall asked her to come in to be arrested. He submits that the test is an objective one and that the accused has not met it: R. v. Le, 2019 SCC 34.

[105] I do not need to determine whether there was a detention at the time of the phone call, because, even if there was a detention at that point, I do not accept that s. 10(a) required the officer in this case to do more than tell the accused the offence for which she was being detained. My reasons are two-fold.

[106] First, I have not been taken to any case that supports the proposition that the police must not only tell the accused what they are being charged with, but must also tell her the circumstances surrounding the charge. Mr. Clark relies on four cases in support of his submission, all of which are readily distinguishable, in my opinion.

[107] The most authoritative case relied upon by the defence is the decision of the Supreme Court of Canada in R. v. Borden, [1994] 3 S.C.R. 14. In Borden, a warrant was issued for the arrest of the accused on a charge of sexually assaulting a woman in circumstances that did not involve intercourse or ejaculation. However, at the time of his arrest, the police also suspected that the accused had been involved in an earlier sexual assault that did involve these things, from the scene of which the police had obtained semen samples. The accused was advised only that he was being arrested for the later assault.

[108] In circumstances similar to those in the case at bar, the accused in Borden attended at the police station where he was arrested for the later assault and told the police that he had already spoken with a lawyer. During a police interview, he was again provided with an opportunity to speak to counsel, and did so. A number of hours later, after the accused had provided scalp and pubic hair samples in connection with the offence for which he was arrested, the police asked him to provide a blood sample. Unknown to the accused, however, the police wanted this sample in connection with the earlier assault. A comparison of the blood sample to the semen sample led to the accused being charged and convicted of the earlier assault.

[109] The Supreme Court upheld the decision of the Nova Scotia Court of Appeal that the accused’s rights under ss. 8, 10(a), and 10(b) of the Charter had been breached and that the evidence of the blood sample should be excluded under s. 24(2). Writing for the plurality, Iacobucci J. held, at p. 162:

In order for a waiver of the right to be secure against an unreasonable seizure to be effective, the person purporting to consent must be possessed of the requisite informational foundation for a true relinquishment of the right. A right to choose requires not only the volition to prefer one option over another, but also sufficient available information to make the preference meaningful. This is equally true whether the individual is choosing to forego consultation with counsel or choosing to relinquish to the police something which they otherwise have no right to take. [Emphasis added.]

[110] However, Borden is distinguishable from this case because, in Borden, the police were actually investigating two offences and failed to so advise the accused, whereas there is no allegation in this case that the police were investigating any offence other than the one for which the accused was arrested at the time of the April 2019 interview. Officer Walls did mention during the interview that the circumstances could lead to other charges such as manslaughter and criminal negligence causing death (transcript, at p. 3), which they did, but those offences arose on the same facts as the ones for which the accused was being arrested and interviewed.

[111] Mr. Clark also relies on the decision in R. v. Anderson, 2010 SKQB 70, 347 Sask. R. 283, in which the court dismissed an appeal by the Crown from the decision of the trial judge to exclude a certificate of analysis in an impaired driving case. In Anderson¸ the appeal judge held, at para. 36, that the police were obliged to advise the accused, whom they had stopped during a routine traffic stop, that he was being asked to accompany them to a police vehicle for the purpose of providing a roadside sample of his breath.

[112] The decision in Anderson is distinguishable from this case for reasons similar to those relating to Borden. In both cases, the accused was not advised of the purpose for which samples were being taken or requested. In both cases, they were being detained for one reason and investigated for another. That is not this case.

[113] The third case relied upon by Mr. Clark is just as distinguishable. In R. v. Wrightman, 2004 ONCJ 210, 72 O.R. (3d) 187, a police officer arrested the accused on the strength of an outstanding warrant. The officer had failed to advise himself of the reason for the warrant and, as a result, was unable to advise the accused of the offence for which he was being arrested. The trial judge held that the police officer had failed to comply with s. 10(a) and acquitted the accused of offences relating to resisting the arrest. Wrightman is clearly distinguishable because the accused in this case was advised of the specific offence for which she was being arrested.

[114] Finally, Mr. Clark relies on the decision in R. v. Whipple, 2016 ABCA 232, 2016 OBCA 232, 39 Alta. L. R. (6th) 1. I have not been referred to any specific part of the decision. Generally speaking, however, the case was one in which the Alberta Court of Appeal held that a warrant that authorized the police not to advise the accused immediately of the reason he was being detained did not violate s. 10(a) of the Charter. I am unable to see how that decision is of any assistance to the accused in this case.

[115] None of these cases persuade me that the law requires the police to do anything more than tell an accused of the specific offence for which she is being detained, which is exactly what happened here. Instead, where an accused alleges that this information was insufficient to fulfill the duty imposed by s. 10(a), the law requires that a case-specific, contextual, analysis be undertaken. This was the ruling in Evans, referred to above.

[116] In Evans, the accused had suffered a significant brain injury as a child and later tests showed that he functioned at the level of 14-year-old with a sub-normal IQ. At the time of his arrest, he was told that he was being arrested for trafficking. During an interview after the accused’s arrest, the interrogation eventually turned to his involvement in two murders, with which he was later charged. The trial judge held that the accused’s rights under ss. 10(a) and (b) had not been infringed and admitted incriminating statements that formed the foundation of the Crown’s case on those charges.

[117] Four of the five justices in Evans held that there had been no violation of the accused’s rights under s. 10(a) of the Charter. Writing for the plurality, McLachlin J. wrote, at p. 888:

When considering whether there has been a breach of s. 10(a) of the Charter, it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b).

[118] While the s. 10(a) arguments in Evans focused on the shift in direction taken during the police interview, it is worth noting that the accused in Evans was told only that he was being arrested “for trafficking in narcotics”. He was not even advised of the nature of the narcotic in which he was alleged to have trafficked, let alone the circumstances in which he was alleged to have done so. The accused in this case was told she was being arrested for trafficking fentanyl.

[119] All of the charges in this case have been laid using the standard wording under the governing legislation. I agree that the charge of trafficking under s. 5 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, is less specific in its wording than the charges the accused faces under the Criminal Code. The charges of manslaughter and criminal negligence causing death refer specifically to Ms. Aultman, while the charge of trafficking does not. However, I am not able to accept that the accused in this case did not know that the charge of trafficking related to the death of Ms. Aultman.

[120] The accused had been interviewed by Officer Wall only eight months before her arrest. That was the only time that either individual had ever encountered one another and they did not encounter one another again until the day of the accused’s arrest. The entire interview in August 2018 focused on Ms. Aultman’s death. The accused admitted knowing Ms. Aultman and that she had died. The officer told the accused that he had reviewed the texts that passed between her and Ms. Aultman on the day of her death (transcript, p. 16). He told her that he had reviewed the mall videos (transcript, p. 17) and spent most of the interview talking to her about her interaction with Ms. Aultman that day. He specifically questioned the accused about her use of fentanyl during the interview (transcript, p. 21, l. 4):

POLICE OFFICER: Okay. So this type of stuff is nothing that you get involved in.

STEPHANIE SLACK: No. I mean, I have - I'm not gonna lie.

POLICE OFFICER: Sure.

STEPHANIE SLACK: I've maybe tried fentanyl a few times.

POLICE OFFICER: Not recently though.

STEPHANIE SLACK: It's never been - no, not recently. And it's never been something that I've had a problem with.

POLICE OFFICER: Okay.

STEPHANIE SLACK: I don't know if that's because I'm on the methadone program so I don't need it.

[121] Despite the slight differences in their versions of what was said during the phone call of April 30, both the accused and the officer testified that the accused was told specifically that she was being arrested for trafficking fentanyl – nothing else. If the accused was being truthful with the officer about not using it anymore, then I find it unlikely that the accused could have been confused about the specific circumstances in which it was being alleged she had trafficked that drug.

[122] My conclusion that the accused knew that the charge related to Ms. Aultman is supported by the video recording of her interview on April 30, 2019. Shortly after the officer recited and the accused agreed with what had occurred before she was brought into the interview room, the officer stated (transcript, p. 2):

POLICE OFFICER: Okay. I know this is difficult for you, okay. There is no winner in this situation whatsoever. This is an awful thing that's taken place. I know you know what I'm talking about. I'm talking about Brandi Aultman's death.

STEPHANIE SLACK: Okay

[123] The accused showed no signs of being surprised by this information. Instead, she reacted calmly and in a way that was more consistent with knowing it already than with learning it for the first time.

[124] For these reasons, I am not persuaded that there was any breach of the accused’s rights under s. 10(a) of the Charter.

Was the April 2019 statement obtained in a manner that infringed the accused’s rights under s. 10(b) of the Charter?

[125] Mr. Clark submits that the police breached the accused’s rights under s. 10(b) after her arrest at the police station by proceeding as if she had validly waived her right to consult counsel when they ought not to have done so. He argues that any waiver she made of her right to speak to a lawyer after her arrest was invalid because she did not know the extent of her legal jeopardy when she spoke to one before her arrest.

[126] As I have explained, I believe that the accused knew from the outset that the trafficking charge related to Ms. Aultman’s death. However, even if I am wrong in that conclusion, I would not accept this submission. The transcript of the April 2019 interview makes it clear that the accused waived her right to counsel after being advised of the fact the charge related to the death of Ms. Aultman and before she made any incriminating statements.

[127] Almost immediately after telling the accused that the charge related to Ms. Aultman, the officer went on to say (at p. 3, l. 26):

I’m also going to caution you though there could be something down the road and – as far as charges, which include manslaughter or criminal negligence causing death. Okay. The trafficking is the first part of this right here. I’m not saying for sure, but I do want you to know that that is a possibility. So if you change your mind and you want to speak to a lawyer or anything I can facilitate that, okay.

[128] Mr. Clark submits that the officer was suggesting that the accused had waived her right to counsel, which she could not have done because she did not know her jeopardy at the time she spoke with a lawyer. I agree that the officer proceeded as though the accused had waived her right to speak to a lawyer again following her arrest. However, as I interpret what happened during the interview, the accused did not wish to speak to her lawyer again until she had more information than just the name of the other person involved in the transaction. This was made clear a little later in the interview.

[129] Earlier in these reasons, I set out a passage from the transcript of the interview in which it could be argued that the accused said she did not remember how much fentanyl she gave Ms. Aultman. Following that exchange, the accused was given another opportunity to contact a lawyer. For the sake of convenience, I will set out the entire passage from p. 12 of the transcript:

POLICE OFFICER: … I don’t know if you gave her a lot or if it’s a tiny bit, I don’t know. I remember the amount, I don’t know if you remember the amount, what she said that she could pay. Do you remember?

STEPHANIE SLACK: I – I’m not sure. I don’t – I don’t really want to talk about this.

POLICE OFFICER: Okay. Sure.

STEPHANIE SLACK: I’d rather talk to a lawyer

first.

POLICE OFFICER: Yeah, absolutely. Do you want to speak to a lawyer now or do you still want to wait for disclosure like you said?

STEPHANIE SLACK: Yeah, I’d rather wait until I have...

POLICE OFFICER: Okay.

STEPHANIE SLACK: ...some information to be

able...

POLICE OFFICER: Okay.

STEPHANIE SLACK: ...to show them.

[130] Based on these exchanges, I conclude that the accused did not wish to consult with counsel again after she was advised that the charge related to Ms. Aultman’s death, even if she did not know that when she spoke to a lawyer earlier. There was a valid waiver by the accused of her right to speak to a lawyer and, therefore, no breach of s. 10(b) of the Charter.

If there was a breach under s. 10 of the Charter, should the April 2019 statement be excluded as evidence under s. 24(2) of the Charter?

[131] As a result of the conclusion I have reached that there was no breach of either s. 10(a) or s. 10(b) of the Charter, I do not need to consider s. 24(2) as it relates to the statement given by the accused in April 2019.

If the search was unreasonable, did it taint the April 2019 statement?

[132] Mr. Clark submitted in the factum he filed on behalf of the accused that the texts the police had unreasonably obtained from Ms. Aultman’s cell phone “tainted” the April 2019 interview and that, therefore, the evidence of the interview should be excluded under s. 24(2). I confess that I am uncertain as to the nature of this submission. In support of it, Mr. Clark relies on the same cases regarding exclusion (Grant and McGuffie) that he relies upon in support of his submissions regarding exclusion of the texts evidence. While Grant did deal with the exclusion of statements made by an accused who was under detention, its focus was on the discovery of other evidence (a firearm) derived from that statement, not a statement derived from other evidence. McGuffie did not deal at all with the exclusion of a statement made following a Charter breach.

[133] If the defence wishes to pursue this argument, then I require further submissions, including references to cases specifically dealing with the tainting of statements by unconstitutionally obtained evidence and specific references to those portions of the interview that support this submission.

If the statement was tainted, should it be excluded as evidence under s. 24(2) of the Charter?

[134] For the reasons expressed immediately above, I require further submissions on this issue, as well.

CONCLUSION

[135] For the foregoing reasons, I do not accept the accused’s evidence that she felt compelled to give a statement in April 2019 in order to secure her release in time to meet her children after school. There is no other evidence of any circumstances that would vitiate the statements. Therefore, I am satisfied beyond a reasonable doubt that the statements given by the accused in August 2018 and April 2019 were given voluntarily. As such, they are admissible at trial.

[136] However, I am persuaded on a balance of probabilities that the text messages obtained from Ms. Aultman’s phone at the scene were obtained in violation of the accused’s right to be free from unreasonable searches and seizures under s. 8 of the Charter. Officer Dagg had no legal authority to search the cell phone.

[137] Because the unconstitutionally obtained text messages were relied upon so heavily by the police in obtaining the search warrant in October 2018, after excising the text messages relating to the accused, the information provided to obtain it falls short of establishing reasonable and probable grounds to search for them.

[138] The Charter-infringing conduct of acting without authority under the Coroners Act, if that is truly what happened, was so serious and had such a significant impact on the accused’s s. 8 rights that even the strong public interest in adjudicating this case on its merits cannot justify the disrepute that will be suffered to the administration of justice if the texts are admitted into evidence. They must, therefore, be excluded as evidence under s. 24(2).

[139] If the defence wishes to pursue its application to exclude the evidence obtained under the production order or the second statement under s. 24(2) of the Charter, it must contact the trial coordinator within the next 10 days to arrange a further hearing, failing which I will consider those applications abandoned. If a date for further submissions is arranged within that time frame, I will require facta of no more than five pages in length:

(1) from the defence, by no later than 14 days before the date of the hearing; and

(2) from the Crown, by no later than 7 days before the date of the hearing.

M.G. Ellies R.S.J.

Released: February 7, 2022

COURT FILE NO.: CR-20-17

DATE: 2022/02/07

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

STEPHANIE SLACK

Defendant

REASONS FOR DECISION

M.G. Ellies R.S.J.

Released: February 7, 2022