COURT FILE NO.: CR-21-70000342-0000 DATE: 20230315

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – RICO HARVEY

Counsel: Bev Richards and Corie Langdon, for the Crown Tyler MacDonald, for Rico Harvey

HEARD: November 21, 23, 25, 28, 29, 30, December 6, 7, 2022

R.F. GOLDSTEIN J.

[1] On May 14, 2020, Rico Harvey was arrested and charged with second degree murder. The victim was Peter Elie. Peter Elie was a resident of a condominium on Balliol Avenue in Toronto. Mr. Harvey allegedly bludgeoned Mr. Elie to death. The police took statements from Mr. Harvey. Crown counsel, Ms. Richards and Ms. Langdon, wish to use these statements at trial. Defence counsel, Mr. MacDonald, resists on the grounds that the statement was not voluntary. Mr. MacDonald also argues that the police violated Mr. Harvey’s s. 10(b) Charter rights.

[2] In my view, the statement was not voluntary and Mr. Harvey’s s. 10(b) rights were also violated. The Crown application is dismissed and the defence application is granted.

[3] What follows are my reasons.

FACTS:

The Death Of Peter Elie

[4] On May 14, 2020, just after 1:00 am, Peter Elie was murdered in the laundry room of his condominium building at 155 Balliol Street in Toronto. The Toronto Police seized video surveillance footage from the building. The videos showed that at about 11:40 pm on May 13 an unknown male entered the lobby of the building. That male was not a resident. He rode the elevator and eventually ended up in the laundry room on the second floor. Mr. Elie was doing his laundry at that time. At 12:20 am the unidentified male removed Mr. Elie’s laundry from one of the machines and put it on the floor. At 1:12 am Mr. Elie took his clothes from the floor and went to the elevator. The unknown male was in the laundry room and followed Mr. Elie to the elevator. At 2:14 am the unknown male and Mr. Elie were near the elevator on the second floor. Mr. Elie went to the laundry room. The unknown male followed him. Mr. Elie tried to stop the unknown male from entering the laundry room but he was able to push into the room. Mr. Elie walked away from him. The unknown male struck him from behind. Mr. Elie collapsed on the floor. The unknown male punched and kicked Mr. Elie while he was on the ground and then started to drag him.

[5] Mr. Elie was able to get to his feet and tried to defend himself. The unknown male took a fire extinguisher and started beating Mr. Elie with it. He then dragged Mr. Elie. He took a garbage can and emptied it over Mr. Elie. He then beat Mr. Elie with the garbage can.

[6] The unknown male left the laundry room at 1:28 am. He returned at 1:32 am. He was carrying a fire extinguisher. Mr. Elie was on his feet but the unknown male struck him again with the fire extinguisher. Mr. Elie collapsed again. The unknown male then set a garbage can on fire. He then fired the extinguisher at Mr. Elie. The unknown male then left 155 Balliol through a back door.

[7] The Crown alleges that the unknown male was Mr. Harvey. Mr. Elie and Mr. Harvey were unknown to each other.

Emergency Services Arrive; Mr. Elie Dies; Post-Mortem Conducted

[8] At 2:07 am a 911 call was made for a fire at 155 Balliol Street. Toronto Fire Services entered the laundry room, where the fire was occurring. They located Mr. Elie, who was unconscious and injured. Toronto Fire Service officers commenced first aid and contacted police and ambulance services. An ambulance took Mr. Elie to Sunnybrook Hospital, but he was pronounced dead at 2:48 am. The forensic pathologist determined the cause of death to be blunt force trauma to the head and chest.

Police Identify Rico Harvey As A Suspect And Arrest Him

[9] Toronto Police commenced a homicide investigation. Rico Harvey was immediately identified as a suspect. Forensic officers lifted fingerprints at the scene. Those fingerprints belonged to Mr. Harvey. The police also released Mr. Harvey’s photograph through the media. Witnesses identified the unknown male as Mr. Harvey.

[10] At around 8:45 pm on May 15, 2020, Toronto Police officers arrested Mr. Harvey at gunpoint a Popeye’s Chicken restaurant at 2000 Eglinton Street East. The arrest was effected by four Toronto Police officers, all of whom had their guns drawn. Detective Constable Court entered first, followed by other officers. The officers commanded Mr. Harvey to get on the ground. He appeared surprised, dropped crutches that he had been using, dropped his cell phone, and complied. DC’s Court, McGrath, and Crocker all assisted in cuffing and taking control of Mr. Harvey. Other officers entered Popeye’s. Detective Capizzo followed later.

[11] Detective Constable McGrath told Mr. Harvey that he was under arrest for first degree murder. Mr. Harvey said, “I didn’t murder anyone”. DC McGrath then read Mr. Harvey his rights to counsel from another officer’s memo book. Mr. Harvey stated that he did not murder anyone; that he wanted to go to the hospital for his medication; that he wanted to call his lawyer; and that his lawyer was Butler. According to the Agreed Statement of Facts filed on the voir dire, DC McGrath noted the following exchange with Mr. Harvey:

Q: Do you understand your rights to counsel? A: No, I want to call my lawyer Butler. Q: OK, do you understand you can call any lawyer you wish? A: I want to call David Butler. Q: Do you want to call a lawyer right now? A: Yes, David Butler.

[12] DC McGrath then read the caution. DC McGrath had the following exchange with Mr. Harvey, again, according to the Agreed Statement of Facts:

Q: Do you understand? A: I want to call my lawyer. Q: We will call your lawyer but I want to make sure you understand that you do not have to say anything to us but whatever you say can be used as evidence in court. A: I want to go to the hospital for my meds. Q: Do you understand what I said? Q: I want to call my lawyer.

[13] He could not identify which medications he needed but told the officers that he smokes pot because it does the same thing. He said it would wear off and he would get hyper. He then told the officers “you made me famous”. During a pat-down search Mr. Harvey stated, “I didn’t do it but I know who did”.

[14] It is an agreed fact that at no time during the arrest process did Detective Capizzo, DC Court, or DC Monahan threaten or make promises or inducements to Mr. Harvey.

[15] It is also an agreed fact that at 9:04 pm Constables Rivera and Chandler took Mr. Harvey from the restaurant to a marked police car. Mr. Harvey began banging his head on the window of the police car. It is an agreed fact that the officers wanted to leave the scene right away to prevent Mr. Harvey from continuing to bang his head.

Police Take Mr. Harvey to 41 Division; Speaks to Counsel; First Interview

[16] Mr. Harvey arrived at 41 Division at 9:06 pm. He continued to bang his head against the window of the police car. He was paraded at 9:20 pm. He was yelling that he wanted his medication. Officers then conducted what was then known as a Level 3 search. Mr. Harvey’s hands were bagged. The officers had noticed blood on his hands. The bags were placed on his hands to preserve evidence so that forensic officers could take swabs.

[17] At 10:19 pm Mr. Harvey was placed in a private room. He had a telephone call with his lawyer, David Butler. The call lasted two minutes. Mr. Harvey did not say anything about the adequacy of the advice he received. He did ask to use the washroom but was told he could not until an FIS officer swabbed his hands. An FIS officer, DC Piccolo, did so at 10:35 pm. Mr. Harvey then used the washroom, escorted by Constables Crocker and Rivera. After that he was given food (two beef patties) and water.

[18] The following are agreed facts:

There were no threats, promises, or inducements made to Mr. Harvey while he was provided access to his counsel of choice; there were no attempts to trick him at that time. The circumstances of Mr. Harvey’s escort were not oppressive.

DC’s Piccolo and Crocker and PC Rivera did not make any threats, promises, or inducements toward Mr. Harvey during the time Mr. Harvey was being investigated by FIS, and they didn’t try to trick him in any way. The circumstances of being investigated by the FIS officer from 10:35 pm to 11:33 pm were not oppressive, nor was the manner in which Mr. Harvey was escorted to the interview room.

[19] Upon completion of the FIS investigation Mr. Harvey was escorted to an interview room. He was turned over to Detective Stewart. The interview was conducted by Detective Sergeant Browne. The interview commenced at 11:35 pm and concluded at 11:57 pm.

The Police Take Mr. Harvey To The Hospital

[20] At 12:25 am on May 16, 2020, Mr. Harvey was taken to the booking hall. He was told he would be taken to the hospital. At 12:26 am he was placed in a police car, escorted by Constables Chandler and Rivera. According to the Agreed Statement of Facts:

Mr. Harvey arrived at Scarborough General Hospital at 12:23 a.m. He was triaged and placed in room #9 and seen by Dr. Hodge. Mr. Harvey requested x-rays of his hand and feet, as well as medical prescriptions. Mr. Harvey was x-rayed twice. Dr. Hodge advised that “all tests were negative – there are no fractures”. Mr. Harvey was provided with a prescription for six medications he request and one Tylenol. He was medically cleared.

[21] Mr. Harvey left the hospital at 4:09 am and arrived back at 41 Division at 4:15 am.

Further Calls With Defence Counsel; Second Statement Taken

[22] Upon arrival back at 41 Division, Mr. Harvey was placed in a cell. At 5:03 Constable Rivera placed a call to duty counsel on his behalf. At 5:12 am duty counsel called back. Mr. Harvey then spoke with duty counsel. At 7:25 am Special Constable McCloskey took Mr. Harvey’s fingerprints. As the Agreed Statement of Facts states, Special Constable McCloskey “did not threaten Mr. Harvey, or make him any promises, or offer him any inducements. She did not try to trick Mr. Harvey, nor was the manner in which Mr. Harvey was escorted oppressive.”

[23] Special Constable McCloskey called David Butler on behalf of Mr. Harvey at 7:56 am. Mr. Butler asked that the police call back at 8:30 am. Special Constable McCloskey told Mr. Harvey that his lawyer would be available at 8:30 am. Mr. Harvey asked to speak to duty counsel immediately. At 8:14 am he was taken to an interview room where he spoke to duty counsel. At 9:13 am Special Constable McCloskey called Mr. Butler again, asking him to call back. At 11:02 am Mr. Harvey told Special Constable McCloskey that he would speak with homicide detectives after duty counsel. Duty counsel advised that “they had already spoken to him and provided Mr. Butler with the documents and case information. At 11:15 am Mr. Harvey spoke to Mr. Butler. Mr. Harvey was then escorted to the interview room, where Detective Sergeant Browne and Detective Stewart interviewed him again. The interview commenced at 12:16 pm.

Cell Checks

[24] Mr. Harvey was transported to the Toronto South Detention Centre at 5:06 pm on May 16, 2020. He was therefore at 41 Division (including a visit to Scarborough General Hospital) from 9:06 pm on May 15, 2020 until 5:06 pm on May 16, 2020, a total of 20 hours. He was provided two beef patties and water at 10:22 pm. He received food again at 1:53 pm on May 16, after the second statement, about 13 ½ hours after being fed the day before. There were a total of 21 cell checks to ensure his well-being. The feeding log was made an exhibit to the voir dire. The Toronto Police Detention/Release report was also made an exhibit. That report logged the cell check information as well as Mr. Harvey’s property.

ANALYSIS:

[25] The defence Charter argument is that the police violated Mr. Harvey’s s. 10(b) Charter rights by continuing the first interview despite Mr. Harvey’s assertion that he was dissatisfied with his legal advice. They should have ceased the interview and provided another opportunity to consult counsel. The second statement was sufficiently connected to the first statement that it, too violated Mr. Harvey’s section 10(b) Charter rights. Both statements should be excluded pursuant to s. 24(2) of the Charter.

[26] The defence voluntariness argument is that the police failed to properly caution Mr. Harvey prior to the first interview. As well, the police questioned Mr. Harvey in the face of his assertion that he needed to go to the hospital, that he had run out of his medications, and that did not want to talk to them. The police then held out going to the hospital as an inducement. During the second interview, the police questioned Mr. Harvey despite the fact that he had not been fed for over 13 hours and that he had almost no sleep. As a result, the court should find that the Crown has failed to meet its burden of proving the voluntariness of both statements beyond a reasonable doubt.

[27] I frame the issues this way:

(a) Did the police violate the implementational component of s. 10(b) of the Charter during the May 15 statement? (b) Was the May 16 statement causally, temporally, and contextually connected to the Charter breach that occurred during the May 15 statement? (c) Should both statements be excluded pursuant to s. 24(2) of the Charter? (d) Did Mr. Harvey give the two statements voluntarily?

[28] I turn to the issues.

(a) Did the police violate the implementational component of s. 10(b) of the Charter during the May 15 interview?

[29] Mr. MacDonald argues that the police breached the implementational component of s. 10(b). The breach occurred when Detective Sergeant Browne asked Mr. Harvey if he was satisfied with the legal advice he received. Mr. Harvey responded that he was not. Det Sgt Browne was surprised by that – it had never happened to him during his lengthy career. Mr. MacDonald argues that at that point the interview should have stopped. The police had charged Mr. Harvey with murder but he had not yet received satisfactory legal advice. The basic problem was that the police did not inquire into the deficiencies or determine whether Mr. Harvey had received no advice at all – they carried on with an investigative interview under the guise of inquiring into Mr. Harvey’s health. The police asked questions designed to obtain incriminating evidence from Mr. Harvey in the face of uncertainty about the legal advice he received.

[30] Ms. Langdon, for the Crown, argues that Mr. Harvey’s mere blanket statement indicating dissatisfaction did not objectively give rise to a need for a further consultation. Mr. Harvey had consulted with counsel of choice, David Butler. They had a two-minute phone call. Mr. Harvey did nothing to indicate that he had not had a meaningful consultation. Crown counsel put it this way in their factum:

In the face of a blanket statement expressing dissatisfaction with legal advice, the police are entitled to assume that the detainee was satisfied with the exercised right to counsel and commence their investigative interview.

[31] Since the police did provide Mr. Harvey with the opportunity to consult counsel, there was no duty to hold off questioning. It is only where there is a change in jeopardy that the police must implement a further call to counsel. There was no change in jeopardy during the interview. The police were not obligated to provide Mr. Harvey with a further opportunity to consult counsel.

[32] There is much that is persuasive in the Crown’s argument. Indeed, ordinarily, I might well agree with Crown counsel. In the particular circumstances of this case, however, I must respectfully disagree. I find that the police violated Mr. Harvey’s s. 10(b) rights.

[33] I agree with Ms. Langdon that a blanket statement of dissatisfaction with legal advice does not simply equate to a breach of s. 10(b) of the Charter. The police are generally not prohibited from carrying on with an interview without more than just an indication of dissatisfaction. Moreover, it is clear from the interview that Mr. Harvey offered information about the incident completely unprompted. The problem, however, is that the police did not stop the interview to allow Mr. Harvey to contact counsel, or at least make some inquiries. Instead, the officers simply carried on. I would add that not only was it a problem that the police continued the questioning, but Mr. Harvey indicated that he did not wish to keep speaking. He was cold and he said he needed to go to the hospital for his medications, which he had run out of.

[34] I do not wish to be taken as saying that every time a detainee says he or she is dissatisfied with their legal advice the police must simply stop the interview. That is not the law, as I will explain. Whether the interview should be stopped depends on a number of factors.

[35] Section 10(b) of the Charter has two aspects: the informational component and the implementational component. The informational component requires that the police inform every person detained or arrested of the right to retain and instruct counsel without delay. The implementational component requires the police to provide a reasonable opportunity for the detainee to obtain advice from counsel. The police must hold off questioning until the detainee has had an opportunity to speak to counsel and obtain that advice: R. v. Sinclair, 2010 SCC 35 at para. 27.

[36] The police must ensure that a detainee has had a reasonable opportunity to exercise their s. 10(b) rights. This may mean that the police cannot simply ignore a detainee’s statement that he or she is not satisfied with the legal advice received: R. v. Badgerow, 2008 ONCA 605 at paras. 43-46. Ordinarily, the police are required to provide one opportunity to consult counsel (although they may provide more, as they did in this case). The police are required to provide a further consultation where there are new procedures involving the detainee (such as participation in a lineup); a change in jeopardy (such as where new charges are to be added); or there is reason to question whether the detainee understands his or her rights under s. 10(b) of the Charter. There may be other reasons to provide a further consultation, but those are the minimum: R. v. Sinclair at paras. 49-52. There is no “absolute right absolute right to retain and instruct a particular counsel at the initial investigative stage regardless of the circumstances”: R. v. Willier, 2010 SCC 37 at para. 24.

[37] In Willier the accused was arrested for murder. He had a brief conversation with Legal Aid upon arrest. He later left a message for a lawyer. The police told him that since the lawyer’s office was closed, he was unlikely to hear back from that lawyer. The police reminded him that Legal Aid was available. Willier chose to contact Legal Aid for a second time. He had a second brief conversation. The police then commenced an interview. The trial judge found a violation of s. 10(b). He found that the police should have refrained from questioning the accused until he had exercised counsel of choice. The Supreme Court of Canada disagreed with Willier’s claim he did not meaningfully exercise is right to counsel based on a brief consultation. There is no duty on the police to monitor the quality of legal advice. Willier had not said anything to the police and only raised the issue at trial. A detainee must be reasonably and diligently indicate that he or she is has received inadequate legal advice: Willier at paras. 40-43.

[38] There is no bright-line test regarding dissatisfaction with legal advice. Where there is uncertainty over what had occurred with counsel, the police cannot simply ignore statements that raise a reasonable prospect that the detainee has not exercised their s. 10(b) Charter rights. The police must be diligent about ensuring there is reasonable access to counsel. The police cannot rely on ambiguous answers to assume that the detainee has exercised his rights: Badgerow at para. 46.

[39] In R. v. Winterfield, 2010 ONSC 1288 (decided shortly before Willier) the accused allegedly told the police that he was unsatisfied with the advice he had obtained from duty counsel. He did not tell the police he was dissatisfied. He raised the issue at trial. He did not testify what it was about the legal advice he was dissatisfied with. Durno J., sitting as a summary conviction appeal court, noted that there is a presumption that, in the absence of evidence to the contrary, a detainee has received proper legal advice. It is, therefore, appropriate to examine the basis of the dissatisfaction – bearing in mind, of course, that the police are limited in what they can ask an accused person. Durno J. stated:

I agree with the following comments of Vaillancourt J. in R. v. Toth, [1997] O.J. No. 4079; (1998), 36 W.C.B. (2d) 129:

A blanket statement that an accused did not believe she was provided with useful information does not equate to a breach of s. 10(b) of the Charter. Many accused might not like or appreciate the advice given to them by a particular counsel. The Charter is aimed at providing the accused the opportunity to contact counsel forthwith, it does not require an accused to embrace the advice provided.

What the appellant is asserting in his trial evidence, without any specifics, is that he did not receive proper legal advice, an allegation of ineffective assistance or the incompetence of counsel. When that occurs, the detainee should provide the bases upon which he or she is dissatisfied with duty counsel. It is difficult to determine if there was a breach, and if so, how serious it was when the only evidence is the conclusory, "I was dissatisfied with the legal advice."

[40] In R. v. Watling, 2015 ONSC 2311, the detainee spoke to duty counsel. In a conversation with the booking officer, the detainee stated “I understand. I didn’t care much for his advice but you gotta do what you gotta do.” The officer gave him his cell phone in case his friend called back with the name of a private lawyer. After 13 minutes, the officer proceeded to take the breath sample. Miller J., sitting as a summary conviction appeal judge, noted that the case had some similarities to Willier. There was no evidence that the advice was inadequate, just that Mr. Watling didn’t care for it. Miller J. dismissed the appeal.

[41] I turn now to what actually occurred.

[42] During the booking process, Mr. Harvey told the officers about his medications. He also indicated that he had had “molly” (presumably MDMA or ecstasy), cocaine, and edibles right before he was arrested. He said he did the molly sometime after noon, and had been doing cocaine all day.

[43] Mr. Harvey had his initial call with Mr. Butler. PC Crocker testified that Mr. Harvey said nothing about the call. He expressed no dissatisfaction to PC Crocker.

[44] Mr. Harvey was placed in the interview room at 11:33 pm. He immediately told Detective Stewart that he was cold. He then stated:

And normally that’s happening ‘cause I have nothing to say. My lawyer said don’t say anything. I just need to go to the hospital now. I spoke to this guy downstairs. That’s all the talking I had to do. And my lawyer’s not present so I don’t have nothing to say.

[45] Det Sgt Browne then told Mr. Harvey:

I’m going to start with the very beginning uh uh on how we came to be involved, and I don’t want you to answer anything yet because I’ve got to make sure that you understand your rights. Okay. So I don’t want you to say anything to me, but I want to tell you who I am, what we’re about to do, and then it’s going to be up to you to decide whether, in fact, you want to speak to us or not.

[46] Mr. Harvey indicated that he understood. Det Sgt Browne briefly described the incident at 155 Balliol Street. Mr. Harvey then said: “Hold it – am I being accused of murdering him?” Det Sgt Browne indicated that he was being charged with second degree murder. He explained that Mr. Harvey could decide whether he wanted to speak to the police. He also explained that the police were required to provide a reasonable opportunity to speak to counsel of choice. At that point, Mr. Harvey interrupted to say “David Butler.” He confirmed that he had spoken to David Butler. The following conversation ensued:

BROWNE: Here’s the only thing I need to know. When you spoke to Mister BUTLER, whatever that conversation was, are you satisfied with the advice that he gave you? HARVEY: Nope. BROWNE: You are not satisfied with it? HARVEY: Nope. BROWNE: Uh, okay. I can’t get into the details of why you’re not satisfied, but is it your desire then to speak to another lawyer? HARVEY: Yes, please. BROWNE: And who would you like to speak to? HARVEY: I have it on my phone. This girl sent me a lawyer that’s good but I don’t – uh his name is, is on my phone. It’s on my Instagram. BROWNE: Okay. So it’s not --- HARVEY: So I’ll speak to a duty counsel just if – but I still need to go to the hospital ‘cause I have to take my clothes ---

[47] Mr. Harvey then stated:

HARVEY: You guys are push - putting a lot on me right now, and without my clothes, I’ll – I’m just going to keep saying no to everything and I’ll do it till I can go to the hospital ‘cause I, I can’t comprehend, and I’m tired. It’s 11:30. I’m out of pills.

[48] Mr. Harvey reiterated that he needed to go to the hospital and he needed his pills. Det Sgt Browne then stated:

BROWNE: So I don’t want to talk about the incident proper, but I do want to talk about your well being. And let’s just talk about your well being.

[49] They then discussed Mr. Harvey’s injuries, and the fact that he takes anti-psychotic medication as well as medication for type two diabetes.

[50] Det Sgt Browne and Mr. Harvey then had the following exchange:

BROWNE: So I don’t want to talk about the incident proper, but I do want to talk about your well being. And let’s just talk about your well being. HARVEY: Like what? BROWNE: Whatever we’re talking about right now. HARVEY: So what if – say hypothetically --- BROWNE: Hypothetically, yes. HARVEY: If I could tell you the name and the place of the people that did the excessive beating to the man --- BROWNE: Yes. HARVEY: --- started the fire – because I come in (ph) to see me, I tried to put out the fire, but then I just dropped my stuff and left. So, if hypothetically, if I could give you names, how much time would I be doing if I gave you who did it?

[51] After more discussion, Det Sgt Browne explained that he had to “make sure that all your rights are protected.” He said that he wanted to hear Mr. Harvey’s side, but first he had to be satisfied that Mr. Harvey had spoken to a lawyer, that he had obtained some advice, and that if he wanted to talk to police it would be of his own free will and voluntary. Mr. Harvey then asked if he could go to the hospital and then talk to the police, as he would have pills that could help him relax. Mr. Harvey then indicated he would take his night time medication – Seroquel and Trazodone – and then sleep and eat and he would be able to talk. Det Sgt Browne noted that he would permit Mr. Harvey to go to the hospital as the interview was “of no value” if Mr. Harvey was not properly functioning. He asked Mr. Harvey what he was diagnosed with. Mr. Harvey indicated that he was diagnosed with ADHD at age 22. He mentioned marijuana dependency, anti-social behaviour, anger issues, schizophrenia, anxiety, depression, and PTSD. He mentioned going to the day treatment program at William Osler.

[52] Det Sgt Browne then asked if Mr. Harvey had any medical issues. Mr. Harvey mentioned several, including a fractured finger and an ankle injury. Det Sgt Browne asked if they were relatively recent. Mr. Harvey then volunteered information about a medallion that he was robbed of – as he put it, a “million dollar gold thing”. The following exchange occurred:

HARVEY: --- they stoled (sic) it. It’s gone. It was a million dollar jewel. Over a million dollars. Rose gold diamonds – like, diamonds in it. They seen it. It’s not with me. I got robbed. That’s how I got beat up, and they took it. BROWNE: When did that happen? HARVEY: Literally, right after I left the building ‘cause I thought – oh yeah. This was yesterday like um so my witness is 1207. She’s a west Indian – like a Indian girl. BROWNE: Yep. HARVEY: She seen me after the altercation. BROWNE: Yep. HARVEY: And I just left. I didn’t stay there and murder the man. That’s what I forgot to tell you. BROWNE: Okay. HARVEY: Twelve-o-seven (1207) in the same building. I don’t remember her name --- BROWNE: Okay. HARVEY: --- but she seen me after this guy assaulted me. BROWNE: Yep. HARVEY: We had a altercation. BROWNE: Okay. HARVEY: I left. Whatever happened after that, I don’t want to speak about that or who else is there. I’m just letting you know what me, Rico HARVEY, did. You could see on the camera --- BROWNE: Yeah. HARVEY: --- me and the guy had a altercation whatever --- BROWNE: Yes, sir.

[53] Mr. Harvey then continued to describe what happened. He offered up more information. Det Sgt Browne simply said “okay” in response each time or repeated back the information. Det Sgt Browne eventually cut off Mr. Harvey and indicated that they could come back the next day when he was a little fresher. Det Sgt Browne indicated that Mr. Harvey would be taken to the hospital, and then would have another chance to talk to counsel. The interview was then concluded.

[54] In cross-examination on the voir dire, Det Sgt Browne testified that he was interested in learning about Mr. Harvey’s mental state. He had information that Mr. Harvey had a history of mental health issues. He also knew that Mr. Harvey had been subject to apprehensions under the Mental Health Act. One apprehension had been as recent as March 2020. He knew that these issues may have had something to do with what happened. He wanted to get a sense of how Mr. Harvey was presenting. He was mindful of mental health issues that might have played a role, but his job was to investigate and obtain information.

[55] Det Sgt Browne was also cross-examined about Mr. Harvey’s expression of dissatisfaction with the advice he received from David Butler. He was unsure what Mr. Harvey was dissatisfied about; but he was satisfied that Mr. Harvey had received adequate legal advice. He testified that he did not, however, ask Mr. Harvey about the incident because Mr. Harvey had medical concerns that had to be dealt with. Det Sgt Browne was asking about his mental health diagnosis to determine his mental state, but it was a fluid conversation – Det Sgt Brown asked Mr. Harvey for an explanation about what he was suffering from based on the medications he mentioned. He agreed that he also asked about injuries because it might have been useful to the investigation. He agreed that he could have ended the interview earlier. Det Sgt Browne also said that he went down the road of asking questions because Mr. Harvey offered up information about the incident after being repeatedly told that he did not want to hear about it. He asked about the medallion because Mr. Harvey volunteered information, and Det Sgt Browne thought that it could yield useful information. He did not yet know that the police had taken it from Mr. Harvey and it was in his property.

[56] The police officers continued to ask investigative questions after asking Mr. Harvey if he wanted to speak to counsel. In some cases, that might not pose a problem. In the circumstances of this case, however, it did.

[57] The question the police must ask is whether there is an indication from the detainee that the advice or consultation was inadequate. If there is an objective basis to find that the accused has not properly exercised their s. 10(b) rights, the police must then provide a further opportunity to consult counsel: R. v. Ahmed, [2015] O.J. No. 5727 at para. 24.

[58] Initially, Det Sgt Browne did what he was supposed to do – when Mr. Harvey told him that he was dissatisfied with his legal advice, he offered to let him speak with counsel again. But then he left it at that. As he told Mr. Harvey, he could not get into the question of why Mr. Harvey was dissatisfied.

[59] Where a detainee asserts that he is unsatisfied with his contact with counsel, it places the police in a difficult position. They cannot question the detainee as to the basis of the dissatisfaction – that would be encouraging a breach of solicitor-client privilege. The police are therefore left to guess or speculate – did the detainee receive proper advice but simply didn’t like it? Did the detainee receive improper legal advice – something the police would not be in a position to judge? Did the detainee simply not understand the legal advice – again, something the police would not be able to judge?

[60] I have some sympathy with the investigating officers in these circumstances. It is a tricky legal area and the circumstances under which they must stop an interview are not always clear. Det Sgt Browne, a very experienced homicide officer, had never had an accused person express dissatisfaction with legal advice. Mr. Harvey was not unfamiliar with the process. He understood the concept of parole ineligibility. He was aware that Det Sgt Browne and Det Stewart were “high level officers” from the Homicide Squad. Mr. Harvey said that he understood that it was Det Sgt Browne’s job to explain what was going on, his position, his options, what was going to happen, and to answer any questions he might have.

[61] That said, Mr. Harvey was a person with obvious mental health difficulties. He was on anti-psychotic, anti-depression, and anti-anxiety medication. The video of the killing clearly gave rise to potential mental health issues as the driving force behind his behaviour. His behaviour during the interview – such as his obsession with the medallion, or his hint that he could give the police information about the real murderer – also indicated mental health issues. He is clearly a vulnerable person, not in the physical sense, but in the mental health sense. The police had an obligation to do more when Mr. Harvey said he was dissatisfied and would speak to a new lawyer. It raised the prospect that Mr. Harvey had had no meaningful advice, or that he did not understand that advice. The police had to do something. Given Mr. Harvey’s mental health troubles, the possibly of drug impairment, and the non-urgency of that situation, the something was obviously to stop the interview or at least make inquiries, and probably to facilitate another call to counsel. Under these circumstances, I find that on a balance of probabilities the police violated the implementational component of s. 10(b) of the Charter.

(b) Was the May 16 statement causally, temporally, and contextually connected to the Charter breach that occurred during the May 15 statement?

[62] In order to make a finding under s. 24(2) of the Charter with regard to both statements, a trial court must consider whether the first statement tainted the second statement. This is a factual inquiry.

[63] Mr. MacDonald argues that the police used information obtained during the first statement to obtain further information during the second statement. The statement was taken only twelve hours after the first statement. The first statement was a substantial contributing factor in the second statement. The connections between the statements were sufficiently close that the first statement tainted the second statement. This tainting continued the initial s. 10(b) Charter violation.

[64] Crown counsel argues that three features of the second statement insulate against taint from the first statement. First, there is an insufficient temporal connection. It was twelve hours between statements. In the interim Mr. Harvey was taken to the hospital spoke to counsel three times, and indicated that he would speak to the homicide detectives again.

[65] Second, the Crown argues that any taint from the first statement was rectified when Mr. Harvey spoke, again, to counsel. In fact, he spoke to counsel three times – twice to duty counsel and once to Mr. Butler.

[66] Third, reference to the previous statement was not used to trick or induce Mr. Harvey into giving a second statement. Mr. Harvey told the investigators he could not recall what happened during the first statement. References to the first statement were used to give context.

[67] Respectfully, I cannot agree with the Crown.

[68] Where a person gives two statements and the first is taken in violation of s. 10(b) of the Charter, the second statement cannot be considered in isolation. This is so even where the person is given rights to counsel between the two statements. Where a statement is followed by a second statement, and that second statement does not involve a Charter breach, admissibility will be resolved under s. 24(2): R. v. Plaha, 2004 ONCA 21043, [2004] O.J. No. 3484, 188 C.C.C. (3d) 289 (C.A.) at para. 42, quoting Sopinka J. in R. v. T.(E.), [1993] 4 S.C.R. 504 at para. 37.

[69] The admissibility of the second statement is determined by the derived confessions rule. As Watt J.A. noted in R. v. M.D., 2012 ONCA 841, the derived confessions rule is a common law rule dealing with the voluntariness of confessions but has general application. Thus, admissibility falls to be determined under s. 24(2) of the Charter: M.D. at para. 57. Watt J.A. set out the tainting analysis in that case at paras. 54-55:

To determine whether a subsequent statement will be excluded under the derived confessions rule because of the taint left by its involuntary and thus inadmissible predecessor, a trial judge must examine all the relevant circumstances to determine the degree of the connection between the two statements: T. (E.), at p. 526. The Supreme Court of Canada has set out some of the relevant circumstances or factors to consider in determining the degree of connection between the two statements, and thus the influence of the antecedent taint: see T. (E.), at p. 526; Hobbins, at p. 558; and R. v. G. (B.), 1999 SCC 690, [1999] 2 S.C.R. 475, at para. 21. These include but are not limited to:

• the time span between the statements;
• advertence to the earlier statement during questioning in the subsequent interview;
• discovery of additional information after completion of the first statement;
• the presence of the same police officers during both interviews; and
• other similarities between the two sets of circumstances.

The application of these factors will render a subsequent statement involuntary if either the tainting features that disqualified the first continue to be present, or if the fact that the first statement was made was a substantial factor that contributed to the making of the second statement: T. (E.), at p. 526; G. (B.), at paras. 21 and 23. It will generally be easier to establish that tainting affected the first when both these conditions are present. In the end, however, what matters most and mandates exclusion is that the connection is sufficient for the second to have been contaminated by the first: G. (B.), at para. 23.

[70] Watt J.A. went on to say in para. 56:

The inquiry required when the derived confessions rule is invoked to exclude a subsequent statement is essentially a causation inquiry that involves a consideration of the temporal, contextual, and causal connections between the proffered and earlier statements: R. v. Plaha at para. 46. The inquiry is a case-specific factual inquiry…

[71] Thus, the court must consider the temporal, contextual and causal connections between the first and second statements. The entire chain of events from the arrest of Mr. Harvey to the end of the second statement must be considered: Plaha at para. 46.

[72] When I apply the factors set out by Watt J.A. in M.D. I find that the second statement is sufficiently connected to the first that it was tainted by the first statement. It is true that Mr. Harvey indicated that he would speak to the officers. At 11:24 am on May 16, Det Sgt Browne received a call from Sgt Kurtz at 41 Division. According to Det Sgt Browne, she told him that Mr. Harvey had spoken to duty counsel and Mr. Butler and was ready to meet the homicide detectives. It was his plan to only return to 41 Division to interview Mr. Harvey again if he was interested in talking. Sgt Kurtz testified that she spoke to Mr. Harvey and he indicated he would speak to the homicide detectives.

[73] The second statement was taken within twelve hours of the first statement, in the same interview room, with the same officers. Although this applies more to voluntariness than to a violation of s. 10(b), it is not irrelevant that Mr. Harvey was hungry and thirsty during the second interview. Det Sgt Browne testified that he had no idea when Mr. Harvey had last been fed but assumed he had been taken care of – it would have been normal for him to have been fed. In fact, it had been more than 12 hours since Mr. Harvey had eaten. He had paid a visit to the hospital. Mr. Harvey was essentially in motion from the time of his arrest the day before until the end of his interrogation, with virtually no sleep and little food. I find on these particular facts that the two interviews were part of one continuous transaction: R. v. Wittwer, 2008 SCC 33 at para. 21. Although the two statements were 12 hours apart, given the lack of food and sleep and the hospital visit, the process was undoubtedly “head-spinning” for a vulnerable person like Mr. Harvey (notwithstanding that he was not exactly unfamiliar with the process of arrest and booking): R. v. McSweeney, 2020 ONCA 2 at para. 61.

[74] The police did use information from the first statement to provide context to the second statement. Det Sgt Browne explicitly asked about things he had told the police in the first statement. I agree with Mr. MacDonald that the second statement was essentially a continuation of the first statement. While an understandable technique, this was part of the tainting process as it linked the two statements: McSweeney, at paras. 63-66.

[75] Again, I have some sympathy with the police officers in this situation. Det Sgt Browne re-cautioned Mr. Harvey. The police provided three more phone calls with counsel prior to the second statement. The investigators acted professionally when they took the second statement. Unfortunately, however, none of that served to insulate the second statement from the Charter violation that occurred during the first statement. No doubt police officers might read this decision and wonder what they are supposed to do. It is a valid question. I think if the police had simply given Mr. Harvey some time to sleep before taking the second statement, provided him food, and started afresh without reference to facts gleaned during the first statement, it might have gone a long way toward insulating the second statement: McSweeney, at para. 58. That, however, is not what happened.

(c) Should both statements be excluded pursuant to s. 24(2) of the Charter?

[76] Given my conclusion that the two statements are temporally, contextually, and causally connected, the s. 24(2) analysis must focus on them both. It would be artificial to consider the two statements separately.

[77] The framework for determining the admission of evidence obtained in violation of a Charter right is set out in R. v. Grant, 2009 SCC 32. There are three factors: the seriousness of the Charter-infringing state conduct; the impact on the Charter-protected rights of the accused; and society’s interest in an adjudication on the merits. When assessing the seriousness of the Charter-infringing conduct the court must examine how severe or deliberate it was. The more severe and deliberate, the greater the need for the court to dissociate itself from it. The main concern is to preserve public confidence in the rule of law and the administration of justice. Exclusion of evidence despite trivial Charter breaches will undermine confidence; admitting evidence in the face of serious Charter breaches may also undermine confidence.

[78] When assessing the impact on the Charter-protected rights of the accused, the court must examine the interests engaged. In Grant, the Supreme Court used the example of infringements of the right to silence as a potential serious intrusion.

[79] The third Grant factor examines the impact on society’s interest in adjudication of the case on the merits. A court must balance the interests of truth with the integrity of the justice system. A court must also examine the reliability of the evidence. The Supreme Court noted at para. 82:

If a breach (such as one that effectively compels the suspect to talk) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence. The admission of unreliable evidence serves neither the accused’s interest in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system…

[80] The Supreme Court also noted that a court must examine the importance of the evidence to the prosecution’s case.

[81] I turn to an analysis of the factors.

[82] The Charter-infringing state conduct was in the middle of the spectrum. The police did not deliberately disregard Mr. Harvey’s rights. Det Sgt Browne did not attempt to browbeat him or trick him into a confession. Det Sgt Browne was obviously interested in learning more about Mr. Harvey’s mental state and medications for investigative purposes. It would not, however, be fair to say that Det Sgt Browne was disinterested in Mr. Harvey’s well-being. It can be true that he wanted information, but also wanted to ensure that Mr. Harvey was properly taken care of – as Det Sgt Browne observed, a non-functioning Mr. Harvey was of no use to him. In other words, there was no systemic problem or pattern of abuse. Even without a systemic problem or pattern of abuse, however, the breach can be serious: R. v. Keshavarz, 2022 ONCA 312 at para. 110. As Fairburn A.C.J.O. put it in that case at para. 111, “Accordingly, while the Charter-infringing state conduct could have been more serious, especially if it had been part of a pattern of breaches or bad faith had been present, it was still serious indeed.” See also: R. v. Taylor, 2015 SCC 50 at para. 39. Ultimately, this factor favours neither inclusion nor exclusion; it is neutral.

[83] In contrast, I find that the impact on Mr. Harvey’s Charter-protected rights were serious. Mr. Harvey was effectively questioned after the police should have ceased the interview. He provided incriminating statements. Admittedly, those statements flowed out of him, but that was – potentially – in the absence of adequate legal advice: Taylor at paras. 40-41. This factor strongly favours exclusion.

[84] Finally, I find that society’s interest in adjudication on the merits favours exclusion. The statement is reliable, in the sense that much of it is confirmed by videotaped evidence. But that cuts both ways – exclusion of the statement would hardly defenestrate the Crown’s case. Virtually all the shocking events surrounding the killing of Mr. Elie were captured on video. There seems to be little doubt that Mr. Harvey was the perpetrator. This will likely not be a trial about what happened; it will be a trial about why it happened. I appreciate that Mr. Harvey’s statements could potentially shed light on his mental state and therefore his level of culpability. That said, the Grant analysis is about maintaining public confidence in the administration of justice. It would not encourage confidence if the courts were to admit statements taken from people with mental health challenges, who had recently been subject to mental health apprehensions (and not for the first time), who self-report having taken cocaine all day, were on anti-psychotic and anti-anxiety medication, required a hospital visit – and may not have received adequate legal advice.

[85] The statements are both excluded pursuant to s. 24(2) of the Charter.

(d) Did Mr. Harvey give the two statements voluntarily?

[86] It is not necessary for me to decide this issue given my conclusions on s. 24(2) of the Charter. Nonetheless, I will briefly address it for the sake of completeness.

[87] Mr. MacDonald argues that the Crown failed to prove the voluntariness of both statements. Regarding the first statement, he points to three things. First, Det Sgt Browne offered an inducement to Mr. Harvey to talk. Det Sgt Browne made it clear that he would make the decision about whether Mr. Harvey would go to the hospital, even after Mr. Harvey made it clear that he needed to go. In other words, Det Sgt Browne essentially told Mr. Harvey that he would have to answer some questions before he could go to the hospital. Second, Det Sgt Browne failed to caution Mr. Harvey at the beginning of the interview. The lack of a caution was exacerbated by the failure of the police to recognize Mr. Harvey’s compromised mental state. Regarding the second statement, he points to the fact that it was derived from the first and should be excluded on that basis. He also argues that the conditions of the second statement – taken on the basis of no food or sleep – were oppressive, thus rendering the statement involuntary.

[88] Crown counsel, Ms. Langdon, argues that the Crown has satisfied all of the pre-conditions to admissibility. The police did not make promises or offer inducements; there was no oppressive conduct; despite the mental health concerns, there was no evidence that Mr. Harvey did not possess an operating mind; and there was no police trickery.

[89] Despite Ms. Langdon’s argument, presented with her usual skill, I find myself unable to agree. It is an extremely close call, but I am not satisfied beyond a reasonable doubt that the confession was voluntary.

[90] The modern confessions rule was set out by the Supreme Court in R. v. Oickle, 2000 SCC 38. The Crown must obviously prove the voluntariness of a statement beyond a reasonable doubt. The over-riding concern is voluntariness. There is also a concern with reliability. An involuntary confession may not be reliable. The relevant factors that a trial judge should examine at paras. 48 and following of Oickle:

• Threats or promises: Whether there have been threats used by the police aimed at getting a detainee to confess; or promises or inducements such as promises of a lighter sentence or threats, such as a threat that it would be better to tell the truth.
• Oppression: An atmosphere of oppression created by distasteful conditions that induce a detainee to make a “stress-compliant confession” to end the difficult conditions; or oppressive circumstances that overbear the detainee’s, thus inducing a confession.
• Operating Mind: The detainee must have the cognitive capacity to understand what he or she is saying and what is being said. The detainee must have an awareness that there is a court process.
• Other police trickery: Where the police engage in behaviour that undermines the right to silence using tricks the court’s main concern is maintaining the integrity of the criminal justice system.

[91] I do not agree with Mr. MacDonald’s argument that Det Sgt Browne held out the promise of a hospital visit as an inducement. The transcript of the first statement demonstrates that Det Sgt Browne made it very clear that Mr. Harvey would be going to the hospital, and that he did not need to speak. When Mr. Harvey did speak during the first interview it seems clear to me that he did so mostly unprompted.

[92] I have some concerns about Mr. Harvey’s state of mind. He was clearly vulnerable. He reported taking cocaine, ecstasy, and marijuana, but that he had not taken his anti-psychotic, anti-anxiety, and diabetes medication. His mental health problems were known to the police and were obvious on the video of the two statements. That said, I am satisfied that Mr. Harvey had an operating mind. He understood what was said to him and what he was saying. He was able to sum up what Det Sgt Browne had told him, including his role and the purpose of the interview.

[93] I am also satisfied that the police did not engage in any trickery. The police did not lie to him about the evidence or engage in any shocking conduct.

[94] I am, however, concerned about the question of oppression. The question is whether there was an oppressive atmosphere that overbore the will of the detainee.

[95] As I have already noted, Mr. Harvey was in a jumpsuit at the beginning of the first interview, and said he was cold. He recounted what he had been wearing beforehand. He also said:

And normally that’s happening ‘cause I have nothing to say. My lawyer said don’t say anything. I just need to go to the hospital now. I spoke to this guy downstairs. That’s all the talking I had to do. And my lawyer’s not present so I don’t have nothing to say.

[96] He also said:

You guys are push - putting a lot on me right now, and without my clothes, I’ll – I’m just going to keep saying no to everything and I’ll do it till I can go to the hospital ‘cause I, I can’t comprehend, and I’m tired. It’s 11:30. I’m out of pills.

[97] Nonetheless, the interview continued. Det Sgt Browne insisted in cross-examination that he was concerned about Mr. Harvey’s well being. I accept that answer, but as I have pointed out he also wanted to obtain information about Mr. Harvey’s mental state. That information was relevant to the charge. As noted, Mr. Harvey was vulnerable. Det Sgt Browe was an experienced investigator and interrogator. Understandably, Mr. Harvey was no match for him in a battle of wits – although that is not determinative. That is usually the situation with an experienced police officer and a vulnerable person who has committed a serious crime. The atmosphere during the first interview was not oppressive. Unfortunately, however, the combination of factors meant that Mr. Harvey’s will overborne.

[98] After the first interview, Mr. Harvey did tell the investigators, through Sgt Kurz, that he would speak to them. However, for the reasons I have already noted, the second interview is inseparable from the first. Moreover, when Mr. Harvey agreed to speak to the investigators – and did speak to them - he was operating on almost no sleep. He also had not had any food for about 12 hours when the second interview commenced. It is true that Mr. Harvey was medically cleared at the hospital during the early morning hours of May 16. For reasons that are unclear, however, the police did not feed him when he came back to 41 Division. They did not feed him prior to the second interview, which took place several hours later. It is difficult to understand why not, because they still provided him with water and regularly checked on him in his cell. It was incumbent on them to do so. I do not fault Det Sgt Browne and Det Cameron for that – 41 Division was responsible for Mr. Harvey’s welfare. The investigators were entitled to assume that the officers had done their jobs. That said, I am concerned that the combination of lack of food, lack of sleep along with all the other factors amounted to oppression that overbore his will.

[99] Although it is a very close call, I find that I am left with a reasonable doubt about the voluntariness of both statements.

CONCLUSION

[100] The May 15 and May 16 statements are inadmissible.

R.F. Goldstein J. Released: March 15, 2023

COURT FILE NO.: CR-21-70000342-0000 DATE: 20230315 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING – and – RICO HARVEY REASONS FOR JUDGMENT ON VOLUNTARINESS/10(b) APPLICATION R.F. Goldstein J.