COURT FILE NO.: CR-22-131 DATE: 20230511 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – Jesse Aron Bleck, Defendant
COUNSEL: Artem Orlov, for the Crown Geoff Snow, Counsel for the Defendant
HEARD: February 21 and March 3, 2023
CROWN APPLICATION #1 – Seeking a finding that the Defendant’s statement is voluntary DEFENCE APPLICATION #1 – Alleging a Breach of s.10(a) Charter Rights
LEITCH J.
[1] Pursuant to the Order of Regional Senior Justice Thomas dated February 14, 2023, I was appointed as the Case Management Judge in this proceeding, pursuant to s. 551.1 of the Criminal Code, R.S.C. 1985, c. C-46.
[2] The Applicant is charged with failing to stop after an accident causing bodily harm, contrary to s. 320.16(2) of the Criminal Code and two counts of driving while prohibited, contrary to Section 320.18 of the Criminal Code.
[3] This is an Application by the Crown seeking an Order finding that the video and audio-recorded statement given by the Defendant to Police Constable Bernard Martin on January 15, 2020 is voluntary and admissible into evidence at trial.
[4] This Crown application was heard together with the Defendant’s application seeking an Order finding that the Defendant’s s. 10(a) rights were violated and because of the violation, his statement ought to be excluded pursuant to s. 24(2) of the Charter.
[5] These applications, together with other Defendant and Crown applications were heard in a blended voir dire.
Background
[6] On July 21, 2019, at approximately 11:00 p.m., Tristan Roby was riding a bicycle in the westbound lane of Exeter Road when he was struck from behind by a grey Nissan Altima vehicle.
[7] The Nissan Altima did not immediately stop, but did ultimately stop at a nearby motel, at which time the three occupants of the vehicle fled.
[8] One of the passengers, Trevor Gilders, was apprehended by a civilian witness, Mr. Fraser.
[9] The Crown theory of the case is that although the Nissan Altima was registered to Kevin Gilders, the brother of Trevor Gilders, it was being driven regularly by the Applicant.
[10] The primary issue in the trial will be the identity of the driver of the Nissan Altima vehicle at the time of the collision. The Crown theory is that the Applicant was operating the vehicle at the material place and time of the accident.
The Defendant’s Arrest and Caution
[11] DC Garrett, DC Mullen, and DC Basacco, City of London police officers, attended a briefing on January 15, 2020 given by PC Martin, who is in charge of the investigation of the July 21, 2019 accident. Each of these officers testified on the voir dire that PC Martin, advised them that there were reasonable and probable grounds to arrest the Defendant for a charge of hit and run causing bodily harm, and two counts of prohibited driving. They all understood that the charges were Criminal Code offences.
[12] DC Garrett, DC Mullen, and DC Basacco received information that the Defendant was possibly at a Taco Bell Restaurant. They drove there and entered the restaurant at 14:21.
[13] DC Mullen had reviewed a police mug shot of the Defendant and immediately recognized the Defendant. She informed the Defendant he was under arrest for “hit and run causing bodily harm” and 2 counts of “prohibited driving”. She took physical control of the Defendant and handcuffed him.
[14] DC Garrett was beside DC Mullen when the Defendant was arrested, and he heard DC Mullen advise the Defendant that he was under arrest for “failing to stop at the scene of an accident causing bodily harm” and 2 counts of “prohibited driving”.
[15] DC Garrett noted the Criminal Code sections in his duty book. In particular, he noted that the Defendant was being arrested for the offence in s. 320.16 of the Criminal Code. As he acknowledged, he made this note to keep a careful record but also to note they were dealing with the “failing to remain” Criminal Code offence and not a Highway Traffic Act offence.
[16] DC Garrett noted the arrest was at 14:25.
[17] DC Basacco did not recall what words DC Mullen used to describe the charges on which she was arresting the Defendant.
[18] DC Mullen read the Defendant his rights to counsel at 14:26. DC Garrett and DC Basacco observed DC Mullen reading those rights verbatim from her duty book. She repeated the charges on which she had arrested the Defendant. In response to the question, “do you understand?” the Defendant indicated “Yeah”. In response to the question, “do you wish to call a lawyer now?” the Defendant indicated, “Yeah – Prevost”.
[19] DC Mullen was aware that Mr. Prevost is a lawyer practising in London. She did not take any steps to facilitate a call between the Defendant and Mr. Prevost based on her understanding that the cell sergeant would provide a detainee with an opportunity to call a lawyer of their choice, which is what occurred. The Defendant spoke with Mr. Braiden.
[20] DC Mullen provided the Defendant with a primary caution at 14:27 reading verbatim from her duty book as observed by DC Garrett and DC Basacco. Again, she repeated the charges on which she had arrested the Defendant.
[21] All of the officers stated that the Defendant voiced no confusion, and his answers were responsive to the questions he was asked. The Defendant did not ask for clarification or explanation.
[22] DC Mullen acknowledged that in arresting the Defendant she used “shorthand descriptions of the charges”. She also acknowledged that it was her responsibility to know and understand what she was arresting someone for. She knew she was arresting the Defendant on Criminal Code charges but made no reference to the relevant sections when arresting the Defendant. She further acknowledged that the phrase “hit and run” does not appear in the Criminal Code.
[23] DC Basacco searched the Defendant and located a cell phone which he seized. He did not note where on the Defendant he had found the phone. DC Garrett noted the phone was located in the front pouch of the Defendant’s hoodie.
[24] DC Pearson was dispatched to the Taco Bell restaurant to assist with prisoner transport and took over custody of the Defendant at 14:33 from DC Mullen.
[25] When DC Pearson arrived, DC Mullen provided him with the grounds for the Defendant’s arrest – 1 count of hit and run causing bodily harm and 2 counts of prohibited driving.
[26] When DC Person brought the Defendant back to the cruiser, he documented that at 14:45, he informed the Defendant he was continuing his arrest for hit and run causing bodily harm and 2 counts of disqualified driving. DC Pearson indicated that generally he references the relevant statutory sections but could not recall if he did so in this case.
[27] DC Pearson provided the Defendant, at 14:46 and 14:47, with the primary and secondary caution again referencing the charges as hit and run causing bodily harm and 2 counts of disqualified driving. The Defendant indicated he wished to call “Prevost”.
[28] DC Pearson also acknowledged that “hit and run” does not appear in the Criminal Code but there is an offence described as “failing to remain at the scene of an accident”.
[29] DC Pearson departed for the police station at 14:50 and arrived at police cells at 14:57. The Defendant was booked into cells at 15:25. DC Pearson communicated to an officer that the Defendant wanted to speak to “Prevost”.
[30] Although DC Garrett recalled that DC Mullen used the word “failing to stop at the scene of an accident”, it seems to me that his recollection reflects his careful noting of the relevant Criminal Code section.
[31] I am satisfied that DC Mullen used the words “hit and run” when placing the Defendant under arrest, in giving him his rights to counsel, and when cautioning him. DC Mullen testified several times that she knows that these words are the language she would have used. She reiterated on cross-examination her certainty in the words she used, and described herself as a “very detailed” person. These were also the words she used when conveying to DC Pearson the grounds for arrest and the words he used in continuing the Defendant’s arrest and providing the cautions.
The applicable principles of law and the issues on these applications
[32] A statement by an accused to a person in authority “will not be admissible if it [was] made under circumstances that raise a reasonable doubt as to voluntariness”: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 68.
[33] The onus is on the Crown to prove the statement was voluntary beyond a reasonable doubt: Oickle, at para. 30.
[34] A violation of the confessions rule always warrants exclusion: Oickle, at para. 30.
[35] When assessing the voluntariness of a confession, the “trial judge must determine, based on the whole context of the case, whether the statements made by an accused were reliable and whether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to a person in authority”: R. v. Tessier, 2022 SCC 35, at para. 68.
[36] The trial judge must consider all relevant factors, including the presence of threats or promises, the existence of oppressive conditions, whether the accused had an operating mind, any police trickery that would “shock the community”, and the presence or absence of a police caution.
[37] The concept of voluntariness includes the long-standing common law principle that a person is not obligated to provide information to the police or to answer their questions: R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at paras. 27, 31.
[38] This principle is reflected in the commonly worded police caution made to a person under arrest or detention: “You are charged with _______. Do you wish to say anything in answer to the charge? You are not obliged to say anything but whatever you do say may be given in evidence”: Singh, at para. 31.
[39] This caution informs the person of their right to remain silent: Singh, at para. 31.
[40] Further, in Singh, at para. 33, the Supreme Court of Canada instructed that:
…with the advent of the Charter, the s. 10 right to counsel is triggered upon arrest or detention. The right to counsel has both an informational and an implementational component. It seeks to ensure that persons who become subject to the coercive power of the state will know about their right to counsel and will be given the opportunity to exercise it so they can make an informed choice whether to participate in the investigation against them. Therefore, if the detainee has exercised his s. 10 Charter right to counsel, he will presumably have been informed of his right to remain silent, and the overall significance of the caution may be somewhat diminished. Where the suspect has not consulted with counsel, however, the police caution becomes all the more important as a factor in answering the ultimate question of voluntariness.
[41] The Defendant does not assert that any threats were made by any officers, that any promises or inducements were offered, that any excessive force was used, that the Defendant’s operating mind was impaired in any way, or that the Defendant was deprived of nutrition.
[42] The Crown’s position is that, before being interviewed by PC Martin, the Defendant had been read his rights to counsel and was cautioned twice. Further, the Defendant had spoken with counsel, and PC Martin had informed the Defendant of the charges and provided the secondary caution. The Crown contends that the Defendant understood his right to remain silent, chose not to do so, and voluntarily provided his statement which should be admissible at trial.
[43] The position of the Defendant is that his s. 10(a) Charter rights were violated because he – as succinctly stated in paragraph 32 of his factum – was not advised of the reason for his arrest in a manner that allowed him to understand the extent of his jeopardy, and the police failed to facilitate an understanding once there was a positive indication that the Applicant did not understand his jeopardy.
[44] Section 10 of the Charter states:
Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefore; (b) to retain and instruct counsel without delay and to be informed of that right. Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11, s. 10.
[45] Paragraphs 18-21 of the Defendant’s factum set out the following guidance:
Subsections 10(a) and (b) set out very fundamental rights of a person arrested or detained. The instructions to the authorities which they contain are relatively simple. In each case, the detainee is to be “informed”. In the case of section 10 (a), the right is to be informed of the reasons for the arrest or detention. The right to be informed of the true grounds for the arrest or detention is firmly rooted in the common law which required that the detainee be informed in sufficient detail that he or she “knows in substance the reason why it is claimed that this restraint should be imposed.” When an arrest is made pursuant to a warrant, this is set out in writing in the warrant. An arrest without warrant is only lawful if the type of information which would have been contained in the warrant is conveyed orally. Reference: R. v. Evans, [1991] 1 SCR 869 at para. 71.
Section 10(a) is the means by which an arrestee learns of the extent of their jeopardy. In R. v. Evans, [1991] 1 SCR 869, in explaining the importance of section 10(a), McLachlin J. endorsed the comment of Wilson J. in R. v. Black, [1989] 2 SCR 138 that, “[a]n individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy. [Emphasis added] Reference: R. v. Evans, [1991] 1 SCR 869 at para. 26 citing R. v. Black, [1989] 2 SCR 138 at para. 30.
The right of the accused to know the extent of his or her jeopardy in the context of the section 10(b) right to counsel was discussed by in R. v. Smith, [1991] 1 SCR 714, a case in which the police had failed to advise the accused that his shooting victim had died. McLachlin J., for the court, stated the following about section 10(a) in the context of explaining section 10(b): In Canada, we have adopted a different approach [than that in the United States]. We take the view that the accused’s understanding of his situation is relevant to whether he has made a valid and informed waiver. This approach is mandated by s. 10(a) of the Charter, which gives the detainee the right to be promptly advised of the reasons for his or her detention. It is exemplified by three related concepts: (1) the “tainting” of a warning as to the right to counsel by lack of information; (2) the idea that one is entitled to know “the extent of one’s jeopardy”; and (3) the concept of “awareness of the consequences” developed in the context of waiver. Reference R. v. I(LR), [1993] 4 SCR 504 at para. 18 citing R. v. Smith, [1991] 1 SCR 714 at para. 23.
Sopinka J., concurring in Evans, explained how the purpose of advising an arrestee of the reason for their arrest is connected to their ability to make decisions about whether or not to speak with police: The purpose of communicating this information to the accused in either case is, inter alia, to enable the person under arrest or detention to immediately undertake his or her defence, including a decision as to what response, if any, to make to the accusation. It seems axiomatic, therefore, that this information should be conveyed prior to questioning and obtaining a response from the person under arrest or detention. These basic and important values are included in section 10(a) of the Charter.
[46] The Defendant also submits that his misunderstanding of his jeopardy raises a reasonable doubt about the voluntariness of his statement.
[47] Pursuant to these arguments, the Defendant seeks a finding that his statement is inadmissible at trial.
[48] I note that the Defendant in his factum, responding to the Crown’s application, raised other issues – particularly, an allegation of emotional manipulation by PC Martin, and an assertion that the statement includes inadmissible evidence of character, prior disreputable conduct, and prior charges/convictions. These issues were not raised on the blended voir dire and are not addressed in this ruling. The Crown acknowledged that the portions of the statement relating to bad character, other charges, and discreditable conduct will have to be redacted if the statement is otherwise found to be admissible.
The statement in issue
[49] PC Martin met the Defendant just before his interview in the detention centre at London Police Headquarters. By this point, PC Martin had been investigating the accident for six months.
[50] The interview began at 18:05 and lasted about 4 hours. The interview does not include a confession or an admission of guilt. However, the Crown contends that the interview provides significant pieces of evidence – for example:
a. That the Defendant used Facebook messenger (which connects the Defendant to messages); b. That his brother is Mo, connecting him to Mo Pete in text messages; c. That Kevin “keeps his vehicle clean”; and d. That he has a connection to a “Portuguese lady” (who was referred to in the ITOs).
[51] At the beginning of the interview, PC Martin confirmed that the Defendant had the opportunity to speak with counsel. The Defendant expressed no dissatisfaction with the advice he received.
[52] However, it is clear that the Defendant believed he was in custody for “leaving the scene” and had some level of confusion about his charges. PC Martin told him “it’s a hit and run, causing bodily harm”.
[53] At the beginning of the interview the following exchange took place:
Um, I’ve been asked to come down here and talk to you about what’s going on in here. You okay, you need a Kleenex or anything? …Just going to read you something her, okay? A. Yeah. Q. So, you were advised why you’re here. You advised that’s your… A. They – they – my lawyer said failure to leave [sic] a scene and these guys are saying three different charges, so I don’t know what the whole ordeal is here. Q. …the… A. …traffic offence, and they’d cut me loose and… Q. Who said that? A. Ah, Richard Braiden. Q. Okay. So it’s – it’s a hit and run, causing bodily harm. A. Holy shit. Q. And… A. That’s… Q. Two prohibited drivings, ‘cause you’re not supposed to drive and… A. And I haven’t been driving… Q. …and you… A. …so it’s… Q. Okay. A. It’s… Q. So that’s – I’m just advising you that those are the reasons… A. Yea. Q. …that you’re – that’s – that’s why we’re here, okay? Ah, I’m just going to read you something quickly. So and you – so you did – you talked to a lawyer you said? A. Yeah. Q. Mr. Braiden? Um, and you were – you were told that you could do that and you were advised and I’ve advised you again the reason… A. Yeah. Q. …why. Ah, so I’m going to read you a secondary caution, so if you’ve spoken to any police officer or anyone in a position of authority has spoken to you with regards to this matter, I want it understood that you don’t have to – that it doesn’t ah, influence you in making any statements. So nobody’s promised you anything or threatened you, or… A. I haven’t talked to anyone about this. I don’t know. Q. Okay. Okay. So I – I guess, so you have no clue what’s… A. No, that’s where I’m behind in all this, someone’s got to catch me up here.
[54] The Crown asserts that based the Defendant’s reaction to the clarification provided by PC Martin, the Defendant understood the gravity of his charges. On cross examination, PC Martin agreed that the Defendant’s reaction seemed to be a genuine reaction to a serious situation.
[55] At 19:17, PC Martin indicated to the Defendant that one of the charges he is looking at “is this hit and run that I’m investigating”, that occurred in July 2019 and that the person hit was “basically in a bed now with catastrophic injuries”. The Defendant’s response was expressive and did not raise any concern with PC Martin as to whether the Defendant understood the significance of what happened in the 2019 accident.
[56] Later at 19:40, the Defendant states that “it would never have been a hit and run if that was me”.
[57] PC Martin goes on to speak of the “hit and run victim” and describes the incident as an accident. According to PC Martin, the phrase “hit and run” is vernacular for “leaving the scene”.
[58] During the interview, the Defendant in response to the proposition from PC Martin that he was being respectful of the Defendant, stated:
A. But as you know, the – you never have the upper hand in any of – in any of it. And that’s probably why Richard telling me not to say anything in here, but I’m not kind of guy to sit there, you, I’m sitting here trying to figure it out.
[59] Later in the interview at 21:08, close to the interview’s conclusion, the Defendant reiterated that his charges were “failure to remain at an accident”. The following exchange took place:
A. But if you’re trying to get a hold of me, what do you mean, wouldn’t you just be getting a hold of me here, or what am I getting released? Q. I have no idea. A. So like it – and my lawyer also said that… Q. Okay. I don’t want to hear about… A. No, but the charges he… Q. …that… A. …said were failure to – what was it, failure to remain at an accident. Q. Yeah. A. That’s all he said. Q. Fail – its – it’s the actual’s, um, fail to stop at accident, cause bodily harm. But it’s a Criminal Code charge. A. Oh. He didn’t, ah… Q. There’s – there’s – there’s – there can also be um, a traffic – a Highway Traffic Act charge too, like a Provincial charge, um… A. For… Q. For the same but it’s usually for lesser thing.
[60] This is the first point in the interview that PC Martin makes reference to the charge being a Criminal Code offence.
[61] At 21:25, the Defendant stated, “it’s like obviously I’m going to be staying the night”. He asked PC Martin to contact his family members and asked about getting bail the next day.
[62] The Crown argues that until that point, there had been no indication from the Defendant that he believed he would be released, which supports the Crown assertion that the Defendant appreciated the gravity of the charge. However, it is apparent from the beginning of the interview that the Defendant believed, based on his call with Mr. Braiden, that he’d be “cut loose” because it was a traffic offence.
[63] PC Martin was unaware who had made the call to Mr. Braiden to set up contact with the Defendant and was also unaware what Mr. Braiden had been told. PC Martin only knew that the Defendant spoke with Mr. Braiden. On cross examination, PC Martin acknowledged it was possible that Mr. Braiden had talked to the Defendant about the wrong charges.
[64] PC Martin agreed on cross examination that the Defendant needed to know the charges were serious and PC Martin indicated “it’s a hit and run, causing bodily harm” after giving the Defendant the secondary caution and confirming he spoke with counsel.
[65] Counsel for the Defendant emphasized that after speaking with PC Martin for over 3 hours, the Defendant circled back to where he started and mentioned again the charge he spoke to Mr. Braiden about, which the Defendant asserts is not the charge that PC Martin was investigating.
[66] At no point in the interview did PC Martin ask the Defendant if he wanted to speak with his lawyer about the more serious charge.
[67] In relation to the issue of voluntariness, I am satisfied that the Crown has satisfied its onus on its application. The Defendant was cautioned. I agree with the Crown that the Defendant was aware of his right to remain silent and remaining silent had been recommended by Mr. Braiden. Throughout the interview PC Martin emphasized the accidental nature of the incident. This does not cause me concern given that s. 320.16 references an accident in describing the offense. I cannot accept the Defendant’s argument that this language misled the Defendant and rendered his statement involuntary.
[68] As counsel for the Defendant concedes during his argument, his stronger point is in relation to the Defendant’s s. 10 rights. I note that the Crown asserted that the issue of the Defendant’s s. 10(b) rights was not before the Court. However, although the application itself sought a finding that the Defendant’s s. 10(a) rights were violated, the Defendant’s factum and the case law referenced therein raised issues with respect to the observance of the Defendant’s s. 10(a) and (b) rights. I agree with Defendant’s counsel that the Crown had notice of what was in issue on this application.
[69] In these circumstances, was the Defendant adequately informed of the reason for his arrest? Could he have understood the extent of his jeopardy in order to meaningfully exercise his s. 10(b) rights?
[70] Defence Counsel asserts that the Applicant’s comments to PC Martin illustrate that he believed that he had been charged with “a traffic offence”, which obviously involves jeopardy of less significance. Further, he contends that PC Martin’s clarification that the Defendant had been charged with “hit and run causing bodily harm” does not clarify the distinction between “a traffic offence” and a Criminal Code offence. He asserts there was a “glossing over” of the Defendant’s rights to counsel, and PC Martin was obliged to pause the interview and ask the Defendant if he wished to speak to counsel in relation to the “real” and more serious charge.
[71] On the other hand, the Crown asserts that the Defendant could not have been under any impression other than that he was part of a Criminal Code investigation as opposed to a Highway Traffic Act investigation. The Crown suggested that the nature of his arrest – three officers attending to his location and placing him in handcuffs – indicated the seriousness of the charges, as does the fact that bail was discussed with his counsel. The Crown noted that prohibited driving is a Criminal Code offence. The Crown also suggested that the additional facts that the interview was lengthy, and the victim was seriously injured all lead to a conclusion that the Defendant clearly understood his jeopardy.
[72] I am satisfied that the Defendant’s s. 10(a) rights were not breached by the words used when the Defendant was arrested and cautioned. A similar argument was made in R. v. Clarke, 2015 ONCJ 303, where the accused was cautioned for “failing to remain” rather than “failing to stop”. Paciocco J. (as he was then), rejected that “semantic” argument, concluding at para. 96 that such an argument presupposed the accused would assume the matter was a highway traffic offence, something he found “unrealistic” where the accused was detained and brought into an interview room, which “would have made clear that the investigation was serious”. I find that such is the case here, and additionally, the Defendant was informed and cautioned that the offence had caused bodily harm.
[73] However, what causes me concern is the Defendant’s response immediately after PC Martin clarified the Defendant’s charges. The Defendant stated:
A. I haven’t talked to anyone about this. I don’t know. Q. Okay. Okay. So I – I guess, so you have no clue what’s… A. No, that’s where I’m behind in all this, someone’s got to catch me up here.
[74] The arresting officer, the transport officer, and the cell sergeant respected the Defendant’s rights; PC Martin also attempted to do so. However, in these circumstances, I conclude that the Defendant was not given full opportunity to engage his s. 10(b) rights. Both the Charter and its judicial interpretations stress the importance of an accused having the opportunity to speak with counsel knowing the full extent of their jeopardy. When it became apparent the Defendant was confused regarding his charges, that he did not understand the extent of his jeopardy, that he had not “talked to anyone about this”, and was “behind in all this”, I find that PC Martin had a constitutional obligation to take action beyond what was done. He was obliged to, at a minimum, pause the interview and ask the Defendant if he wished to speak with counsel.
[75] I find that the Defendant’s statement was obtained in a manner that infringed his s. 10(b) Charter rights. The remaining issue is whether the illegally obtained evidence should be excluded pursuant to s. 24(2) of the Charter. The Defendant bears the onus of establishing that the admission of the statement would bring the administration of justice into disrepute considering all the circumstances.
[76] Addressing this issue requires a balancing of the factors developed in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353:
a. The seriousness of the Charter-infringing conduct that led to the discovery of the evidence; b. The extent to which the breach undermined the Defendant’s protected interests; and c. Society’s interest in the adjudication of the case on its merits.
[77] I note that, as stated in Grant at para. 73, the assessment of the seriousness of the Charter infringing conduct is not to punish the police. The main concern is to preserve public confidence in the rule of law and its processes.
[78] The inquiry is an objective one and the proper question to be asked is whether a reasonable person informed of all relevant circumstances and the values underlying the Charter would conclude that the admission of the evidence would bring the administration of justice into disrepute.
[79] In this case, I am satisfied that each of the Grant factors favour exclusion of the evidence.
[80] The breach had a significant impact on the Defendant’s s. 10(b) rights. PC Martin’s failure to pause his interview was not a minor or inadvertent mistake, and there were no extenuating circumstances justifying his doing so. I find that PC Martin’s decision to press on with the interview reflected a degree of recklessness with respect to the Defendant’s Charter rights. This was more than a technical breach – it strikes to the core of the accused’s Charter protected rights.
[81] I find that the Defendant’s right to make a meaningful and informed choice to speak with PC Martin was seriously undermined in these circumstances where the Defendant’s statements demonstrate that when he spoke with counsel, he did not appreciate the full extent of his jeopardy.
[82] This case can still be heard on its merits without the impugned statement. While the statement might facilitate the discovery of the truth and the adjudication of this case on its merits, this evidence is not critical to the Crown’s case. Exclusion of this statement will certainly not “gut” the Crown’s case. As the Defendant notes, witnesses can establish all the “connections” the Crown seeks to rely on from the statement. I am satisfied this is so.
[83] For these reasons the Defendant’s statement to PC Martin will be excluded from evidence.
Justice L.C. Leitch Released: May 11, 2023