R. v. Kerr et al, 2023 ONSC 3638

COURT FILE NO.: CR-21-30000474-0000

DATE: 20230615

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

STEADLEY JUNIOR KERR, VIJENDRAN BALASUBRAMANIAN, GARY JOHN SAMUEL and ASHLEY ADA OWEN

S. Capogreco and B. Snow, for the Crown

F. Davoudi, for Mr. Kerr

J. Shulman, for Mr. Balasubramanian

G. Partington, for Mr. Samuel

C. Israel and D. Newton, for Ms. Owen

HEARD: April 11-13, 2023

RULING

(Admissibility of Statements)

SCHRECK J.:

[1] On the morning of March 13, 2020, a man carrying a package rang the doorbell of the house where Theepa Seevaratnam lived with her husband, Vijendran Balasubramanian, and their children. Ms. Seevaratnam was at home with her mother and aunt. Mr. Balasubramanian was not there.

[2] When the man rang the doorbell, Ms. Seevaratnam’s mother answered the door and the man told her that he was there to deliver the package and needed someone to sign for it. Ms. Seevaratnam, who had heard the man speaking, came to the door to see what he wanted. When she approached the door, the man produced a firearm and shot her several times. He then shot her mother, after which he left with the package. Ms. Seevaratnam died of her injuries. Her mother survived.

[3] The man with the package left in a car that was later determined to have been rented earlier that day by Gary Samuel. The police believe that it immediately drove to an apartment building, where the shooter entered an apartment which the police later learned belonged to Ashley Owen. He left a short time later wearing different clothing.

[4] The Crown alleges that Steadley Kerr, who is the father of one of Ms. Owen’s children, was the shooter and that Mr. Samuel drove him to and from the house where the homicide took place. The Crown also alleges that the murder was organized by Ms. Seevaratnam’s husband, Mr. Balasubramanian, with the assistance of Ms. Owen. All four of them are charged with conspiracy to commit murder. Mr. Kerr, Mr. Balasubramanian and Mr. Samuel are also charged with first degree murder. Ms. Owen is charged with being an accessory after the fact to murder.

[5] Mr. Kerr and Mr. Samuel both gave statements to the police at the time of their arrests. Ms. Owen spoke to the police prior to her arrest when they executed a search warrant at her apartment. The Crown wishes to rely on all three statements and has applied to have them admitted as having been made voluntarily. All three defendants submit that their statements were not voluntary and also allege various violations of their Charter rights, which they submit warrant exclusion of their respective statements. The Crown submits that all three statements were voluntary and that there were no Charter breaches. With respect to Ms. Owen, the Crown advances the additional argument, based on a number of authorities, that because her statement constitutes part of the actus reus of the offence of being an accessory after the fact, it cannot be excluded because there is an “actus reus exception” to the usual exclusionary rules.

[6] After the applications were heard, I advised the parties that Mr. Kerr’s and Mr. Samuel’s statements would be admitted and Ms. Owen’s would be excluded and indicated that I would provide reasons for my conclusions at a later date. These are those reasons.

I. OVERVIEW OF THE INVESTIGATION

[7] At about 9:40 a.m. on Friday, March 13, 2020, a man approached the front door of a house on Murray Avenue in Toronto and rang the doorbell. The house belonged to Mr. Balasubramanian and his wife, Theepa Seevaratnam. At the time, Mr. Balasubramanian was not at home and Ms. Seevaratnam was there with her mother, Leelavathi Seevaratnam, and her aunt, Mangaleswary Sivapalan, both of whom also lived there.

[8] Leelavathi answered the door and the man indicated that he was there to deliver a package and needed someone to sign for it. Theepa, who had heard the man, came to the door to see what was happening. When she approached the door, the man produced a firearm and shot Theepa several times. He then shot Leelavathi and left, taking the package with him. Mangaleswary Sivapalan, who had had witnessed the shooting from a stairwell, called Mr. Balasubramanian, who called 911. By the time the police arrived, Theepa was dead. Leelavathi was taken to the hospital and survived her injuries.

[9] The police seized security video from various locations which showed that the person believed to be the shooter left the scene in a black Chevrolet Cruze being driven by someone else. It is the Crown’s theory that the car immediately went to an apartment building on Eglinton Avenue East, where the shooter got out of the car and entered an apartment on the ninth floor which the police later learned was the residence of Ms. Owen. He left a short while later wearing different clothing. It is the Crown’s theory that Ms. Owen was waiting for the shooter with a change of clothing and that he stored the firearm used in the homicide at her apartment.

[10] The Crown alleges that Theepa was murdered at the behest of her husband, Mr. Balasubramanian. He had been introduced to Mr. Kerr by Ms. Owen, whom he knew as a customer at a convenience store he used to own. On the day of the murder, Mr. Samuel rented the Chevrolet Cruze and drove Mr. Kerr to Theepa’s home, where he shot her and her mother, and then drove him to Ms. Owen’s residence, where he discarded his clothing and the firearm.

[11] At the trial, the Crown intends to rely on cell phone tower evidence, text messages which are allegedly communications between the defendants, the evidence of witnesses who will say they recognize Mr. Kerr in some of the video, and evidence that Mr. Subramanian was involved in an extramarital affair and of discord between him and his wife, which is said to provide motive for wanting her dead. The Crown also wishes to rely on statements made by all four defendants.[^1]

II. MR. KERR’S STATEMENT

A. Evidence

(i) The Arrest

[12] By March 19, 2020, the police came to believe that Mr. Kerr was the shooter and obtained a warrant for his arrest on charges of second degree murder and attempted murder. They were initially unable to locate him but finally did so on March 30, 2020. Two uniformed officers, P.C. Noble and P.C. Emms, arrested him at 4:18 p.m. without incident as he left a convenience store. The officers placed him into the back of a police car, advised him of his right to counsel, and cautioned him. Mr. Kerr indicated that he understood both the caution and his right to counsel. He told the officers that he wished to speak to his lawyer, whom he identified as Stephen Feldman. The officers told him that he would be able to do so at the police station.

[13] Mr. Kerr was transported to the police station and arrived there at about 4:36 p.m. There was some delay entering the station because the booking hall was in use. Mr. Kerr and the officers entered the booking area at about 5:17 p.m. The arresting officers advised the Staff Sergeant on duty of the reason for Mr. Kerr’s arrest and that he had been advised of his right to counsel. The Staff Sergeant told Mr. Kerr that he had spoken to the investigating officers and that his charge could be “upgraded” to first degree murder.

(ii) Consultation With Counsel

[14] At 6:00 p.m., after Mr. Kerr was strip searched and booked, P.C. Noble looked up the telephone number for Stephen Feldman in a directory of lawyers. He called the number but received a recorded message indicating that it was out of service. At 6:05 p.m., P.C. Noble then went to the cell area, advised Mr. Kerr that the number was out of service, and asked whether he wished to speak to duty counsel. Mr. Kerr indicated that he did. P.C. Noble did not ask Mr. Kerr whether he had any contact information for Mr. Feldman or whether there was another lawyer he wished to speak to. P.C. Noble contacted duty counsel at 6:09 p.m. and received a call back at 6:44 p.m. Mr. Kerr then spoke to duty counsel.

[15] At about 8:30 p.m., one of the investigating officers, D.S. Browne, learned that a lawyer, Gerald Yasskin, had contacted the police station to speak to Mr. Kerr. D.S. Browne spoke to Mr. Yasskin, who told him that he worked with Mr. Feldman, who was ill, and had been asked by him to speak to Mr. Kerr. D.S. Browne confirmed with Mr. Kerr that he wished to speak to Mr. Yasskin and then arranged for him to do so. How Mr. Feldman came to learn of Mr. Kerr’s arrest is unknown.

(iii) The Interview

[16] Mr. Kerr was taken to an interview room at about 10:29 p.m. The interview was video and audio recorded. D.S. Browne confirmed that Mr. Kerr had spoken to counsel and provided him with the standard caution. When asked whether he wished to say anything in answer to the charge, Mr. Kerr replied, “no.” D.S. Browne then told him that he would read the secondary caution, and “then you can decide whether this conversation is gonna continue or not.” After providing the secondary caution, D.S. Browne asked Mr. Kerr some general questions about his personal circumstances and employment, which Mr. Kerr answered.

[17] D.S. Browne told Mr. Kerr that “I’m sure you’ve been given some instruction by your lawyer on what you should and shouldn’t do and, and that’s your right to do so.” He then explained that “… my job is not just to gather all the information that’s gonna find you or anyone else guilty” and that he would follow up on any information he obtained from Mr. Kerr.

[18] D.S. Browne then said the following:

Now, here’s the scenario alright I’m, I’m gonna give you a scenario and, and, and because it’s really important for you to understand that this is the way the law works. Right now the allegation is second degree murder okay, I’m gonna give you a very, very, very brief overview of how the law works. I’m not gonna try and play a lawyer but I want you to understand how the law works and how things can change.

D.S. Browne then explained, in layperson’s terms, the essential elements of first and second degree murder. He continued as follows:

The important thing with those two things is the outcome. So, if someone is found guilty of first degree murder, okay, automatic life in prison. That’s, that’s the rules. And they cannot apply for a parole before serving 25 years. That’s first degree murder. … Second degree murder, okay, if someone is to be found guilty of second degree murder it’s the same thing, it’s life in prison but, but the judge has a discrepancy [sic] as to when the first eligibility of parole can be and that can be as little as 10 years up to 25. That’s a big window. …. That’s a 15-year difference.

He then told Mr. Kerr that the reason he was telling him this was because “this is the important thing and this is something you’re gonna have to ponder and think about” because the investigation had led the police to conclude that there was no reason why anybody would have wanted to harm the deceased and “situations like that, it always makes us wonder, well, why would someone wanna do something like that.”

[19] During the remainder of the interview, Mr. Kerr answered several questions about his relationship with Mr. Samuel and Ms. Owen and the rental of the car which the Crown wishes to rely on, and also said several things which the Crown submits were false. At no time did Mr. Kerr admit to any involvement in the offence.

B. Voluntariness

(i) Overview

[20] The confessions rule was recently described in R. v. Beaver, 2022 SCC 54, at paras. 45-48:

The common law confessions rule provides that a confession to a person in authority is presumptively inadmissible, unless the Crown proves beyond a reasonable doubt that the confession was voluntary (Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3] at paras. 30 and 68; R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 11; Tessier (SCC) [2022 SCC 35], at paras. 39, 68 and 89).

Voluntariness, broadly defined, is the “touchstone” of the confessions rule (Oickle, at paras. 27, 32 and 69; Spencer, at para. 11; Singh 2007 SCC 48, [2007] 3 S.C.R. 405], at para. 31). Voluntariness is a shorthand for a complex of values engaging policy concerns related to not only the reliability of confessions, but also to respect for individual free will, the need for the police to obey the law, and the fairness and repute of the criminal justice system. Involuntary confessions can be unreliable, unfair, and harmful to the reputation of the criminal justice system (Oickle, at paras. 32 and 70; Singh, at paras. 30 and 34; Tessier (SCC), at paras. 70 and 72). A statement may be involuntary “because it is unreliable and raises the possibility of a false confession, or because it was unfairly obtained and ran afoul of the principle against self-incrimination and the right to silence” (Tessier (SCC), at para. 70).

The application of the confessions rule is necessarily flexible and contextual. 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” (Tessier (SCC), at para. 68). 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. These factors are not a checklist that supplants a contextual inquiry (see Oickle, at paras. 47, 66-67 and 71; Spencer, at paras. 11-12; Singh, at para. 35; Tessier (SCC), at paras. 5, 68, 76 and 87).

[21] Counsel for Mr. Kerr submits that the Crown has failed to prove the voluntariness of the statement for two reasons: (1) D.S. Browne in effect suggested to Mr. Kerr that unless he cooperated, the charge against him would be upgraded to first degree murder; and (2) he falsely told Mr. Kerr that he followed him on the day of the homicide.

(ii) The Alleged Inducement

[22] Counsel for Mr. Kerr submits that this was obviously a case of first degree murder and that the reason Mr. Kerr was initially charged with second degree murder was so the police could use the threat of a charge of first degree murder to induce him to talk to them.

[23] D.S. Browne testified that at the time of Mr. Kerr’s arrest, he did not have grounds to charge him with first degree murder and that he explained the difference between first and second degree murder to Mr. Kerr so that he would understand his potential jeopardy. I confess to being somewhat puzzled by this evidence. At the time Mr. Kerr was arrested, the police knew that the deceased had been shot by a person who came to her front door under the pretense of being there to deliver a package and shot her almost immediately after she came to the door. It is difficult to see how this could have been anything other than a planned and deliberate murder and I find it difficult to accept that a very experienced police officer like D.S. Browne could have thought that there were no grounds to support such a charge.

[24] Immediately after explaining that there was a 15-year difference between the potential penalties for first and second degree murder, D.S. Browne told Mr. Kerr that “this is the important thing and this is something you’re gonna have to ponder and think about” because the police could not understand why the deceased had been shot. In all the circumstances, this appears to be a suggestion that if Mr. Kerr were to explain that the murder was not planned and deliberate, his charge would not be upgraded to first degree murder. This was a quid pro quo.

[25] The existence of a quid pro quo is not, however, dispositive with respect to the issue of voluntariness. In R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 15, the Court stated:

Therefore, while a quid pro quo is an important factor in establishing the existence of a threat or promise, it is the strength of the inducement, having regard to the particular individual and his or her circumstances, that is to be considered in the overall contextual analysis into the voluntariness of the accused’s statement.

[26] The reason why a quid pro quo relating to whether the accused will be charged or what he will be charged with can have the effect of overbearing his or her will was explained in R. v. J.M., 2017 ONSC 7260, at para. 35:

The prospect that a detainee could talk his way out of a charge and the ensuing prosecution must be sweet music to his ears. It is hard to imagine a more tantalizing offer for the police to dangle in front of the accused.

Had Mr. Kerr admitted to shooting the deceased and then attempted to persuade the police that the homicide was not planned and deliberate, I would have had no hesitation in concluding that the statement was not voluntary. But that is not what happened.

[27] D.S. Browne made it clear to Mr. Kerr that he was convinced that he was guilty of at least second degree murder, but implicitly suggested that he did not know whether it was planned and deliberate because he did not know why the deceased had been shot. Nothing Mr. Kerr said was responsive to the suggestion that his charges could be upgraded to first degree murder. He did not try to “talk his way out of” the charge of first degree murder. Although he may have tried to “talk his way out of” a charge of second degree murder, nothing D.S. Browne said could have been construed as suggesting that this was a possibility. Put simply, if there was an inducement, it was not why Mr. Kerr chose to speak to the police.

(iii) The Alleged False Information

[28] With respect to D.S. Browne telling Mr. Kerr that he had followed him on the day of the shooting, D.S. Browne testified that he was referring to the video evidence the police had collected, which he believed showed Mr. Kerr’s movements that day. I accept that explanation. D.S. Browne did not present Mr. Kerr with false evidence.

[29] For these reasons, I am satisfied beyond a reasonable doubt that Mr. Kerr’s statement was voluntary.

C. The Charter Application

(i) Section 10(a) of the Charter

[30] Counsel submits that Mr. Kerr’s s. 10(a) Charter right to be informed of the reasons for his detention was violated because the police always intended to charge him with first degree murder and by telling him that he was being arrested for second degree murder, the police failed to accurately advise him of the reasons for his detention.

[31] Mr. Kerr’s argument is foreclosed by the Supreme Court of Canada’s decision in R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217. In that case, the accused was told only that he was being “detained” in relation to the death of his daughter when he was, in effect, being arrested for her murder. The court found no s. 10(a) violation (at paras. 30-31):

There is no doubt that Mr. Latimer was not told that he was under “arrest”; he was told that he was being “detained”. Nor was he explicitly told that he could be charged with murder. However, as with determining whether there has been a de facto arrest, when considering whether there has been a violation of s. 10(a), one must look beyond the exact words used. As the Court held in Evans, [[1991] 1 S.C.R. 241], 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 understand his right to counsel under s. 10(b).

Although the two submissions were presented separately, it is convenient to deal with them together. On the facts of this case, I have no doubt that the trial judge was right in finding that Mr. Latimer understood the basis for his apprehension by the police and hence the extent of his jeopardy. He knew that his daughter had died, and that he was being detained for investigation into that death.

[32] In this case, Mr. Kerr understood that he was being arrested for murder, which is significantly more information than was provided in Latimer. He could clearly “understand generally the jeopardy” in which he found himself: Latimer, at para. 28: R. v. Smith, 1991 CanLII 91 (SCC), [1991] 1 S.C.R. 714, at p. 728.

(ii) Section 10(b) of the Charter

[33] Counsel for Mr. Kerr submits that his s. 10(b) rights were violated in two ways: by failing to make the attempt to contact Mr. Feldman until 6:00 p.m. and (2) by failing to inquire of Mr. Kerr whether he had an alternate counsel of choice.

[34] In my view, the delay in contacting counsel did not constitute a s. 10(b) violation. Mr. Kerr did not arrive into the booking hall until 5:17 p.m. While it is unclear how long the booking process and strip search took, P.C. Noble began his attempts to contact counsel by 6:00 p.m. Having regard to the fact that the police were dealing with new public health protocols in what was at the time the very beginning of the COVID-19 pandemic, there is no basis to conclude that P.C. Noble failed to facilitate access to counsel “at the first reasonably available opportunity”: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 24.

[35] However, the failure of the police to ask Mr. Kerr whether he had an alternate counsel of choice or another telephone number for Mr. Feldman was a Charter breach. I base this conclusion on R. v. Traicheff, 2010 ONCA 851, aff’g [2008] O.J. No. 4361 (S.C.J.), aff’g 2007 ONCJ 564, where the Court of Appeal stated, at para. 2:

In finding a breach of s. 10(b) of the Charter, the trial judge said at para. 27 of his reasons:

Appropriately the police should advise the detainee after waiting a reasonable period of time for his lawyer to return the call that no call has come in from his lawyer and ask him if he would like to consult another lawyer. Alternatively the police should ask the detainee whether he has another telephone number where his counsel of choice could be reached or give him a telephone directory to see if he could find his lawyer’s name and another telephone number where he could be reached.

We agree with these observations. Indeed, they reflect the Supreme Court of Canada’s decision in R. v. Willier, 2010 SCC 37 (S.C.C.) where at para. 41 McLachlin C.J.C. and Charron J. wrote that s. 10(b) requires the police to afford detainees not only a reasonable opportunity to contact counsel of their choice but as well to facilitate that contact. [Emphasis added].

See also R. v. Jhite, 2021 ONSC 3036, 405 C.C.C. (3d) 322, at para. 35.

(iii) Section 24(2) of the Charter

[36] Evidence obtained in violation of the Charter is not automatically excluded. Rather, it is excluded only if the applicant can establish that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute: Beaver, at para. 117. This requires a consideration of the three lines of inquiry described in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 and subsequent authorities: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused’s Charter-protected interests; and (3) society’s interest in the adjudication of the case on its merits. It is important to bear in mind that the focus must be on the effect that the Charter breach has on the administration of justice as a whole, rather than this specific trial: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 140; R. v. Lafrance, 2022 SCC 32, at para. 89.

[37] The s. 10(b) breach in this case does not warrant exclusion of the statement. There is no indication that the police intended to violate Mr. Kerr’s rights and the seriousness of the Charter breach is, at most, moderate. More importantly, the breach had virtually no impact on Mr. Kerr’s Charter-protected interests. The police did not ask Mr. Kerr any questions until after he had spoken to both duty counsel and Mr. Yasskin. Despite the failure of the police to make further inquiries, Mr. Feldman somehow became aware that Mr. Kerr was detained and made arrangements to have Mr. Yasskin contact him. In addition to this, there is a strong societal interest in an adjudication on the merits in this case.

[38] The Charter application is dismissed.

III. MS. OWEN’S STATEMENT

A. Evidence

(i) The Investigation Up to That Point

[39] Ms. Owen lived in an apartment on the ninth floor of an apartment building on Eglinton Avenue East with her four children, her mother, Lorella Owen, and her sister, Jessica Owen.

[40] In the early stages of the investigation, the police had not identified the person who went to Ms. Owen’s apartment immediately after the homicide, whom they believed to be the shooter. The police suspected it might have been a person called Shamal Harris, who had had a relationship with Ms. Owen and was the father of one of her children. At this point in the investigation, the police considered Ms. Owen to be a “person of interest.”

(ii) The Police Arrive to Execute a Search Warrant

[41] On March 19, 2020, the police obtained a warrant to search Ms. Owen’s apartment and arrived at her apartment building to execute it at 5:10 p.m. As the police officers approached the apartment, they encountered Ms. Owen in the hallway. Two of the officers, Det. Grieve and Det. Dhoum, spoke to her to ascertain whether Mr. Harris was in the apartment. Ms. Owen advised them that Mr. Harris had not been there in months.[^2]

[42] In addition to Ms. Owen, three of her children, Lorella Owen and Jessica Owen were also in the apartment. They were advised that the police would be executing a search warrant and that they would have to vacate the premises. Jessica Owen asked if she could change her clothes. She was permitted to do so, but a police officer accompanied her into her bedroom. The police did not search the person of any of the occupants, but did briefly search the belongings they were leaving with.

[43] According to Det. Dhoum, there was a “brief detention” while the police cleared the unit and had a gun dog go through it to determine whether there was a firearm there, but the detention ended once those objectives were completed. He testified that he specifically told the women that this was the extent to which they were being detained. His notes, however, indicate that he told them that they were “being detained while warrant being executed.” Det. Dhoum explained that his note was “very general” and that he “should have been more specific.”

(iii) Arrangements for Ms. Owen’s Children

[44] Once all of the apartment’s occupants were in the hallway, Det. Grieve asked Lorella to take the children down the hall so that he could speak to Ms. Owen and her sister. He told them that surveillance indicated that a male had entered the unit on March 13, 2020 and then left, which was why they were searching the apartment. He again asked whether Mr. Harris had been there and was again told that he had not. Det. Grieve showed the two women a still photograph of the suspect entering the building lobby. They both told him that the person in the photograph was not Mr. Harris.

[45] Ms. Owen made arrangements to leave her children with a neighbour on the 15th floor the building. Someone brought the children to the 15th floor and Det. Grieve directed a police officer to accompany them.[^3]

[46] One of Ms. Owen’s children was at a park and she wanted to go there to pick her up. She did not do so, because as Det. Grieve explained in his testimony, “I wasn’t letting her go there.”

(iv) The Police Remain in Ms. Owen’s Company

[47] After the children were dropped off, Ms. Owen and the other two women remained in the hallway. Det. Dhoum spoke to them about “various things” in order to “build rapport.” Ms. Owen indicated that she was not feeling well and that her wisdom teeth were bothering her. Jessica Owen complained of a sore back.

[48] Det. Dhoum asked the three women whether there was another area they could go to where they could sit down and suggested the building’s laundry room. The women did not want to go there, so they went outside in front of the building. Det. Dhoum advised Det. Grieve that he would “take them outside,” after which he and other officers accompanied the women to the front of the building. Det. Dhoum remained with the women outside until 6:44 p.m., when he returned upstairs. Other officers remained with the women.[^4] At some point while she was outside, Ms. Owen vomited.

[49] At one point, Ms. Owen ordered a pizza and, when it arrived, took it to the 15th floor to give to the children. She was again accompanied by police officers.

(v) The Interview

[50] Det. Grieve and Det. Dhoum accepted the truth of Ms. Owen’s statement that Mr. Harris had not been at the apartment and decided to speak to the occupants to determine the identity of the person who had been there.

[51] At around 6:51 p.m., Det. Dhoum began to interview Ms. Owen, who had since returned from outside, in the hallway. At her request, he did not audio record the conversation. He asked her who had been to the apartment the previous Friday, March 13. She responded that no one had been there, but said that she had “issues remembering.” Det. Dhoum persisted in asking her whether anybody had been there and Ms. Owen told him that she had been out between 8:45 a.m. and 9:30 a.m. that day, although her mother and sister had been home.

[52] Det. Dhoum asked Ms. Owen whether there were males who came to the unit and she responded that the father of one of her children sometimes came. She identified this person as “S.J. Kerr.” Ms. Owen told Det. Dhoum that S.J. Kerr had not been there on Friday, but did come on Saturday or Sunday in the afternoon for half an hour.

[53] Det. Dhoum asked Ms. Owen for S.J. Kerr’s telephone number but she did not answer. When he asked her how she communicated with him, she again did not answer. Det. Dhoum’s notes indicated that he “cautioned” her at this time, which he explained in his testimony:

So in my notes, it says I cautioned Ashley. Uhmm, I didn’t caution her with the caution that we think of in a legal sense, it was more of hey, I don’t think you are being forthcoming with me and, you know, I am investigating a murder. I think we should talk. So that’s what I mean when I wrote caution here. It wasn’t the legal caution that we use when I caution someone.

I, now, I said to her, I said, I know you’ve got four kids, and I made the comment again, and I said, you know, I wouldn’t want you to be charged as an accessory. I just felt that she wasn’t forthcoming with information, so that’s why I said what I said.

[54] Det. Dhoum made notes of the conversation some time later. They were not verbatim.

(vi) Events After the Interview

[55] At some point after her conversation with Det. Dhoum, Ms. Owen vomited again. According to Det. Grieve, she vomited in the stairwell at 7:15 p.m. At the time, he was there interviewing Lorella Owen.

[56] After the interviews were finished, Ms. Owen and her mother went to the 15th floor without being accompanied by the police. This was at some time after 7:15 p.m.

[57] At 8:05 p.m., the police contacted Ms. Owen by telephone to advise her that the search had been completed and they could return to their apartment.

B. The Issues

[58] The Crown submits that Ms. Owen’s statements form part of the actus reus of the offence of accessory after the fact to murder because they were intended, at least in part, to assist Mr. Kerr in avoiding detection for his role in the homicide. The Crown submits that because of this, the statements cannot be excluded pursuant to either the common law voluntariness rule or the Charter because of an “actus reus exception” found in the line of authority that is discussed below. In the alternative, the Crown submits that Ms. Owen was not detained.

[59] In addition to accessory after the fact, Ms. Owen is also charged with conspiracy to commit murder, and her statement is relevant to that offence as well. For reasons explained later, the Crown acknowledges that even if the actus reus exception applies, it would not do so in relation to the conspiracy count. As a result, the issue of whether Ms. Owen’s statement was voluntary and the issue of whether she was detained will have to be determined regardless of the actus reus exception. Since that exception will only be in issue if the statement was not voluntary or if there was a detention, I will consider those issues first.

C. Voluntariness

(i) Overview

[60] Counsel for Ms. Owen submits that the Crown has failed to prove that her statement was voluntary for two reasons: (1) the conduct of the police throughout the encounter created an atmosphere of oppression; and (2) Det. Dhoum made an oblique threat to Ms. Owen that her children would be taken from her if she did not cooperate.

(ii) Oppression

[61] I will discuss the conduct of the police as it relates to the issue of detention later in these reasons. Their conduct did not create conditions that were “distasteful enough that … the suspect would make a stress-compliant confession to escape those conditions,” nor were the conditions such that Ms. Owen would come to doubt her own memory: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 58; Beaver, at para. 49.

(ii) The Alleged Threat

[62] Even if Det. Dhoum’s “caution” could be taken as a threat to have Ms. Owen’s children taken from her, he said this at the end of the interview and Ms. Owen did not make any further utterances after he did so. Even if this was a threat, it had no bearing on her decision whether to speak to the police.

[63] Based on the foregoing, I am satisfied beyond a reasonable doubt that Ms. Owen’s statements were voluntary. As a result, I need not consider the actus reus exception in relation to the issue of voluntariness.

D. Detention – Sections 9 and 10(b) of the Charter

(i) Overview of Relevant Legal Principles

[64] The principles underlying the concept of detention in the Charter context were recently re-affirmed in Lafrance, at para. 21:

Detention refers to “a suspension of an individual’s liberty interest by virtue of a significant physical or psychological restraint at the hands of the state” (R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 21; Le, 2019 SCC 34, [2019] 2 S.C.R. 692] at para. 27). In the heat of the moment, it is not always easy for ordinary citizens, who may be uninformed of their rights or the scope of the police’s powers, to know whether they have a choice to comply with a request by the police. An individual may perceive “a routine interaction with the police as demanding a sense of obligation to comply with every request” (Le, at para. 26, referring to S. Penney, V. Rondinelli and J. Stribopoulos, Criminal Procedure in Canada (2nd ed. 2018), at p. 83). For that reason, this Court has recognized that, “even absent physical restraint by the state, a detention exists in situations where a reasonable person in the accused’s shoes would feel obligated to comply . . . and that they are not free to leave” (Le, at para. 26 (emphasis added)). Even so, not every encounter between state and citizen effects a detention (Suberu, at para. 3; Le, at para. 27); no detention is effected, and therefore s. 10(b) rights are not breached, where an individual voluntarily assists the police by, for example, freely agreeing to provide a statement.

[65] In Grant, at para. 44, the court provided a non-exhaustive list of factors to consider in cases where, as in this case, there was no physical restraint or legal obligation:

(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

See also Le, at para. 31; Lafrance, at para. 22.

(ii) The Circumstances Giving Rise to the Encounter

[66] The police were clearly not “providing general assistance; maintaining general order; [or] making general inquiries regarding a particular occurrence.” Rather, it was clear that they were singling out Ms. Owen, or at least the residents of her apartment, for a “focussed investigation.” As noted in Lafrance, at para. 32, “the warrant itself, by authorizing the police to search Mr. Lafrance’s home, reveals a targeted investigation.”

[67] The Crown submits that the fact that police were executing a search warrant forms part of the circumstances of the encounter and relies heavily on this factor. As noted in R. v. McSweeney, 2020 ONCA 2, at para. 38, “[t]here is no question that during the execution of a search warrant police are entitled to segregate the occupants of the premises to ensure officer safety, to prevent the loss or destruction of evidence, and to maintain the integrity of the search.” In this case, those initial steps occurred soon after the police arrived. Det. Dhoum testified that there was a “brief detention” while the residence was cleared, but that it ended once that was done. There is no evidence that any subsequent interaction between the police and Ms. Owen was in any way related to a need to protect the integrity of the search.

(iii) Nature of the police conduct

(a) Actions and Language of the police

[68] Det. Dhoum testified that he specifically told Ms. Owen and the other women that they were only being detained while the police cleared the unit and had a gun dog go through it. His notes, however, indicate that he told them that they were “being detained while warrant being executed.” Det. Dhoum’s explanation for this is that he was being “very general” in his notes. However, his notes are no more general than what he claims to have said. Telling the women that they were “being detained while warrant being executed” or “being detained while apartment was being cleared” are equally specific in that they both explain a clear temporal limit to the detention. In my view, his notes are more likely to be reliable than his recollection over a year after the events.

[69] I recognize that Det. Dhoum did not adopt his notes and there is therefore no evidence that he told the women that they were being detained while the warrant was being executed. However, there is also no reliable evidence that they were told that they were not being detained. Such an explanation by the police, while not determinative, goes some way towards countering any suggestion that there was a detention: Lafrance, at paras. 35-37.

[70] After the police arrived, Ms. Owen told them that she wanted to go to the park to pick up her child. Det. Grieve testified that “I wasn’t letting her go there.” Crown counsel submits that it is not clear that Det. Grieve actually said this to Ms. Owen, and suggested that she may have simply decided not to go of her own accord. In my view, the only reasonable inference is that Ms. Owen did not go to the park because she was told by the police that she could not. The fact that Ms. Owen felt the need to request permission to go to the park suggests that she perceived that she was not free to do so without permission: McSweeney, at para. 46. Det. Grieve’s response shows that her perception was correct.

(b) The Use of Physical Contact

[71] There was no evidence of any physical contact between the police and Ms. Owen, which weighs against a finding of detention: Lafrance, at para. 42.

(c) The Presence of Others

[72] In his testimony, Det. Dhoum mentioned by name eight police officers who attended Ms. Owen’s apartment. In addition to this, P.C. Obey testified on the voir dire that he was also present, making a total of at least nine.

[73] The fact that the police ensured that Ms. Owen was always in the company of a police officer for over two hours is a “significant consideration”: Lafrance, at para. 43. It was clear that the police wanted to keep track of her movements, and Det. Dhoum’s evidence that he told Det. Grieve that he would “take them outside” demonstrates a degree of control over those movements.

(d) The Duration of the Encounter

[74] This was not a brief encounter. As noted, Ms. Owen was in the constant company of the police for at least two hours. It was made clear to her that the police wanted to speak to her and would monitor her movements until they were able to do so. This weighs in favour of a finding of detention.

(e) Use of the Telephone and Movement Within the Building

[75] The Crown submits that the fact that Ms. Owen was not physically restrained, was able to use her phone to make calls, was allowed to move through various parts of the building and was able to order pizza are a “constellation of factors” which support a finding that there was no detention. I respectfully disagree. These are, at best, the absence of factors that would have confirmed that there was a detention. None of them would have led a reasonable person in the same circumstances to conclude that she was free to leave.

(iv) Characteristics of the Individual

(a) Racialized Context

[76] Ms. Owen is a relatively young, Black, single mother of four children. The relevance of such characteristics to the detention analysis was explained in Le, at para. 73:

In Grant, this Court recognized how the legal standard on which a detention is measured is based on a reasonable person in like circumstances and that this norm needs to account for diverse realities. By expressly including the race of the accused as a potentially relevant consideration, this Court acknowledged that, based on distinct experiences and particular knowledge, various groups of people may have their own history with law enforcement and that this experience and knowledge could bear on whether and when a detention has reasonably occurred. Thus, to truly engage in the “realistic appraisal of the entire interaction”, as required in Grant (at para. 32), courts must appreciate that individuals in some communities may have different experiences and relationships with police than others and such may impact upon their reasonable perceptions of whether and when they are being detained.

At para. 75, the court held:

At the detention stage of the analysis, the question is how a reasonable person of a similar racial background would perceive the interaction with the police. The focus is on how the combination of a racialized context and minority status would affect the perception of a reasonable person in the shoes of the accused as to whether they were free to leave or compelled to remain. The s. 9 detention analysis is thus contextual in nature and involves a wide ranging inquiry. It takes into consideration the larger, historic and social context of race relations between the police and the various racial groups and individuals in our society. The reasonable person in Mr. Le’s shoes is presumed to be aware of this broader racial context.

[77] The social context of race relations is a matter about which judicial notice may be taken: Le, at para. 83. The court in Le canvassed a number of reliable sources of information in this regard which show that members of racial minorities have disproportionate contact with the police, are more likely to have the police use force against them, and often view their treatment at the hands of the police as unfair: Le, at paras. 89-97. All of this must be taken into account in assessing whether a reasonable person in Ms. Owen’s position would have concluded that she was free to leave.

(b) Health

[78] There was also evidence that Ms. Owen was feeling ill during her interactions with the police and vomited twice. This likely would have made her feel more vulnerable.

(c) Prior Contact With the Criminal Justice System

[79] Ms. Owen has a criminal record. In 2007, she was convicted of trafficking in a Schedule II controlled substance, for which she received a suspended sentence and probation in addition to three months of pre-sentence custody. In 2008, she was convicted of obstructing justice for which she received a suspended sentence and probation in addition to nine months of pre-sentence custody. The latter conviction involved misleading statements made to the police during a murder investigation.

[80] The Crown correctly points out that prior involvement with the criminal justice system can be relevant in assessing whether there was a detention. The more experience a person has with the justice system, the more likely it is that the person will be aware of his or her rights. In this case, however, Ms. Owen’s most recent conviction was over 10 years before the events at issue. She pleaded guilty to the obstruction of justice charge, and there is no evidence as to the circumstances of her conviction for the trafficking charge. In these circumstances, while Ms. Owen’s prior contact with the justice system weighs against a finding of detention, it does not do so to a significant degree.

(v) Conclusion

[81] Having considered all of the relevant factors, I have concluded that a reasonable person in Ms. Owen’s circumstances, who has been told that she cannot pick her child up from the park and who has had to be in the presence of police officers for a significant period of time, would not have considered herself free to leave. She was detained.

[82] As noted, the Crown does not seek to justify the detention and there is no issue that Ms. Owen was not advised of her right to counsel. There were therefore breaches of ss. 9 and 10(b) of the Charter, subject to the application of the actus reus exception, to which I now turn.

E. The Actus Reus Exception

(i) Genesis – R. v. Stapleton and R. v. Hanneson

[83] The genesis of the actus reus exception, at least in Ontario, appears to be R. v. Stapleton (1982), 1982 CanLII 3331 (ON CA), 66 C.C.C. (2d) 231 (Ont. C.A.).[^5] This was an appeal from a conviction for causing a peace officer to investigate a crime that had not been committed, and in addressing a ground of appeal related to the sufficiency of a voluntariness voir dire at trial, Martin J.A. stated (at p. 233):

The rule as stated by Lord Sumner in Ibrahim v. The King, 1914 A.C. 599, at pp. 609-610 that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to be a voluntary statement, in the sense that it was not induced by fear of prejudice or hope of advantage inspired or held out by a person in authority, applies to statements made by an accused after the commission of an offence and which are sought to be introduced in evidence for the purpose of incriminating him in respect of the commission of that offence. In the present case, the statements made by the accused to Sergeant Cronk were not introduced to incriminate the appellant in respect of an offence which he is alleged to have previously committed. The statements are alleged to constitute the actus reus of the very offence charged. The confession rule requiring proof of voluntariness of any incriminating statement made to a person in authority is, consequently, not applicable.

The court went on to illustrate the principle with an example based on a charge of failing to comply with a breath demand:

Manifestly, where an accused is charged under s. 235(2) of the Code with failing to or refusing to comply with a valid demand made to him by a police officer, it is not necessary to establish on a voir dire the voluntariness of the accused’s refusal to comply with the demand. The confession rule is inapplicable because the accused’s statement is not introduced to incriminate him in respect of an offence that he is alleged to have committed but the words of refusal constitute the actus reus of the offence charged. We take the same view with respect to the statements in question here.

The principle was re-affirmed in R. v. J.(J.) (1988), 1988 CanLII 7099 (ON CA), 43 C.C.C. (3d) 257 (Ont. C.A.), at pp. 260-262.

[84] Stapleton was imported into the Charter context in R. v. Hanneson (1989), 1989 CanLII 7159 (ON CA), 49 C.C.C. (3d) 467 (Ont. C.A.). In that case, four police officers were convicted of obstructing justice after giving false statements during an internal investigation conducted pursuant to the Police Act. During interviews they were statutorily required to participate in, the officers had made misleading statements to cover up an assault one of them had committed. The court concluded that there was no need for the Crown to prove that the statements were voluntary (at p. 471):

It was the position of the Crown at trial that the Police Act statements were being introduced not as statements in the ordinary sense or confessions, but rather as part of the actus reus of the crime. In the submission of the Crown, the statements were part of a continuing cover-up and suppression of the true facts surrounding the assault of Stoewner and as a result no voir dire was required. The learned trial judge accepted this argument. We think he was right in so doing.

In R. v. Stapleton (1982), 1982 CanLII 3331 (ON CA), 66 C.C.C. (2d) 231 this court addressed a similar situation.

In our view the principle stated by Martin J.A. applies to this case. Mr. Greenspan attempted to distinguish the Stapleton case from the case at bar on the grounds that in Stapleton the accused went voluntarily to the police station to complain while in the case at hand the statements were demanded from people who were the subject of investigation. This distinction in fact does not render the principle enunciated in the Stapleton case any less applicable.

[85] The court then went on to apply the same principle in the context of s. 10(b) of the Charter. For the purposes of the argument, the court was prepared to assume that the appellant had been detained and there had been a s. 10(b) violation, but continued as follows (at p. 472):

The question then becomes - what is the effect of such a Charter breach. Does such a breach insulate the person detained against liability for subsequent criminal acts? The answer must be in the negative. It cannot be sensibly argued that following a breach of s. 10(b) of the Charter the person detained is free to assault his custodian or commit theft without any attendant criminal responsibility. Similarly, despite a breach of s. 10(b) a detained person will attract criminal responsibility for crimes committed by words, e.g. threatening death or offering a bribe. Section 10(b) has as its object the provision of counsel to those under investigation for crimes already committed in order that they might be advised with respect to making disclosure, the provision of evidence, etc. regarding those crimes. Section 10(b) cannot possibly relate to crimes yet to come.

(ii) The Supreme Court of Canada’s Decision in R. v. Cobham

[86] Five years after Hanneson, the Supreme Court of Canada released its decision in R. v. Cobham, 1994 CanLII 69 (SCC), [1994] 3 S.C.R. 360, together with a number of other cases dealing with s. 10(b) of the Charter.[^6] Cobham involved a charge of failing to comply with a breath demand. The accused, who had been arrested after failing a roadside screening test, expressly refused to provide a breath sample by saying “No, I won’t” when the demand was made. After concluding that there had been a s. 10(b) violation, Lamer C.J.C., writing for the court, considered s. 24(2) of the Charter (at p. 373):

In light of the violation of the appellant’s s. 10(b) Charter right to counsel, it is necessary to decide whether the evidence of his refusal to comply with the breathalyser demand should be admitted under s. 24(2) of the Charter. In my view, this is a clear case in which admission of the evidence would negatively affect the fairness of the trial. The appellant’s refusal is self-incriminating evidence of a particularly serious nature in that it is evidence which itself constitutes the crime. That is, unlike a confession which may only be some evidence upon which a conviction is based, a refusal to blow is itself commission of the offence of refusing to “blow” under s. 254(3)(a) of the Code. The direct connection between the incriminating refusal evidence and the offence creates a strong presumption that its admission would render the trial unfair. This is because the appellant may not have refused to take the breathalyser test if he had been properly advised under s. 10(b) of his right to duty counsel. What would have happened thereafter is not a matter upon which I am prepared to speculate. [Emphasis added].

Not only did the court make no reference to Hanneson or the actus reus exception, it appeared to reach the opposite conclusion, that is, the fact that the utterances in question formed part of the actus reus is a factor favouring, rather than barring, exclusion.

(iii) R. v. Richards

[87] Cobham has not been mentioned in any subsequent Ontario Court of Appeal case which applied Hanneson. The first of these was R. v. Richards (2004), 2004 CanLII 39047 (ON CA), 70 O.R. (3d) 737 (C.A.), which involved charges of robbery and other offences. There was evidence that the robber used the names “Steve” and “Romy,” so the Crown called evidence that the accused had used those names when interacting with the police during earlier and unrelated investigations. At trial, the defence argued that the accused’s s. 10(b) rights were violated during those earlier interactions with the police and the utterances should be excluded. The trial judge rejected the argument for several reasons, including his conclusion that the Charter did not apply to “future criminal acts” because of Hanneson. In considering a ground of appeal related to this issue, the court stated (at pp. 749-750):

The trial judge was in error in holding that the protection against self-incrimination does not extend to future criminal acts. It is well-established that the protection against self-incrimination can extend to protect an accused from the use in a subsequent proceeding of material previously obtained from an accused by state compulsion: See R. v. S.(R.J.), 1995 CanLII 121 (SCC), [1995] 1 S.C.R. 451, 96 C.C.C. (3d) 1.

In my opinion, the evidence clearly supports the conclusion that the appellant was under detention and had not been informed of his right to counsel when he allegedly gave the name “Steve”. The evidence is therefore properly viewed as conscriptive evidence obtained following a Charter breach: See R. v. Cook (1998), 1998 CanLII 802 (SCC), 128 C.C.C. (3d) 1 (S.C.C.), per Cory J. at pp. 31-2. Such evidence is presumptively inadmissible as compromising trial fairness, unless it is shown that the evidence would probably have been obtained in any event, without the unlawful conscription: See R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, 92 C.C.C. (3d) 289, at p. 218 S.C.R., p. 320 C.C.C.; R. v. Harper, 1994 CanLII 68 (SCC), [1994] 3 S.C.R. 343, 92 C.C.C. (3d) 423, at pp. 354-55 S.C.R., p. 430 C.C.C.; R. v. Hachez (1995), 1995 CanLII 1109 (ON CA), 25 O.R. (3d) 363, 101 C.C.C. (3d) 31 (C.A.) at pp. 375-77 O.R., pp. 44-46 C.C.C.

[88] It is not clear in Richards whether the use of the aliases in the earlier interactions with the police were part of an attempt to mislead the police and therefore the actus reus of an offence. Thus, while Richards clearly states, contrary to what is said in Hanneson, that the Charter can apply to “future criminal acts,” it does not specifically address the situation where the otherwise unconstitutionally obtained utterance forms the actus reus of the offence.

[89] Some courts read Richards as overruling Hanneson: R. v. Whyte, 2009 ONCJ 389, 196 C.R.R. (2d) 159, at para. 32; R. v. Rusnov, 2009 ONCJ 564, at para. 72. However, as will be seen, it clearly did not do so.

(iv) R. v. Ha – Causal Connection and Limits on the Application of the Exception

[90] Hanneson was cited in R. v. Ha, 2010 ONCA 433, a case in which utterances made by the accused at the time of her arrest were relied on by the Crown during a prosecution for production of marijuana and bribery. The utterances were excluded at trial because of Charter violations. The Court of Appeal allowed a Crown appeal against the acquittal on the bribery charge, but not the production of marijuana charge (at paras. 6-8):

As to the bribery charge, the respondent made a number of statements to the police officers during her arrest for production of marijuana in which she offered them money in an attempt to avoid arrest. The trial judge excluded the statements after finding that their reception would render her trial unfair. As we have already said, we see no basis on which to interfere with the trial judge’s ruling that excluded the statements on the basis of the Charter breaches in relation to the production of marijuana charge. However, in our view, this determination did not resolve the question of whether the statements were admissible as the gravamen of the bribery offence.

In our view, the rationale in Hanneson applies equally here where there was a s. 9 breach as well as breaches of s. 10 of the Charter. The statements made by the respondent constituted the actus reus of the new offence. They did not flow causally from the Charter breaches.

[91] Ha is significant for two reasons. First, significance was attached to the fact that the statements “did not flow causally from the Charter breaches.” This is consistent with Cobham, where the court noted that there was a presumption of unfairness resulting from the “direct connection between the incriminating refusal evidence and the offence” because the offence might never have been committed but for the Charter breach. See also R. v. Vansickle, 2019 ONCJ 777, 448 C.R.R. (2d) 282, at para. 113.

[92] The second reason Ha is significant is that it stands for the proposition that even where an utterance is not excluded because it forms the actus reus of an offence, it may nonetheless be excluded as evidence of other offences. This is why the statement in question was excluded as evidence of the production of marijuana charge, but not the bribery charge. A similar approach was taken in R. v. Goulding (1997), 1997 CanLII 16006 (NL SC), 157 Nfld. & P.E.I.R. 16 (Nfld. S.C.), where an involuntary statement was excluded in relation to an arson charge, but not a public mischief charge.

(v) R. v. Rivera – The “Gravamen or Foundation” Requirement

[93] Any doubt about the continued applicability of Hanneson was laid to rest in R. v. Rivera, 2011 ONCA 225, 104 O.R. (3d) 561. In that case, the court concluded that the utterances in question did not form part of the actus reus, so the actus reus exception did not apply, but in so doing affirmed the exception’s existence.

[94] Rivera involved a charge of failing to comply with a breath demand. The accused had not expressly refused to provide a breath sample, but had made a number of unsuccessful attempts while making a number of utterances about her alcohol consumption, some of which were inconsistent, as well as other utterances which could be viewed as attempts to dissuade the officer from demanding the sample. On an appeal from conviction, the accused argued that the trial judge had erred in relying on these utterances, which were made without her having been advised of her right to counsel.[^7] Relying on Hanneson, the Crown submitted that the actus reus exception applied and the utterances were admissible.

[95] The court rejected the Crown’s argument for several reasons, the second of which is relevant for our purposes (at paras. 91-94):

The Crown’s proposed characterization of the relevance of the statements, I believe, stretches the concept of actus reus beyond its well-established meaning. Actus reus is simply the voluntary and wrongful act or omission that constitutes the physical components of a crime.

Clearly, if an accused made a roadside statement that related directly to the refusal, it would then be open to the Crown to lead that evidence as establishing the actus reus of the offence. The accused’s statement in Bijelic [2008 CanLII 17564 (ON SC), [2008] O.J. No. 1911 (S.C.J.)], “I don’t care, charge me”, provides a good example of a statement that is properly admitted as evidence of the actus reus.

In contrast, by way of example, the appellant’s differing descriptions of the amount and type of alcohol she had to drink and her statements to the effect that she worked for the O.P.P., cannot accurately be characterized as evidence of the actus reus of the offence of refusal in the circumstances. Her various statements about the amount she had to drink could not be taken as indicating that she was refusing or failing to give a breath sample. This is also the case with her statements – “I work for the O.P.P. I’ll lose my job” and, “Give me another chance. Don’t do this to me. I don’t want to lose my job. Why are you doing this to me?” (emphasis added). These statements cannot be said to constitute the gravamen or foundation of the offence of refusal or failure to blow, as contemplated by this court in Stapleton, Hanneson and Ha. [Emphasis added].

[96] The court in Rivera explained that where it is unclear whether a statement forms part of the actus reus, the trial judge will have to be make a determination in this regard (at para. 94):

In general, it will fall to the trial judge to determine on the facts of the case whether a particular roadside statement can properly be considered as evidence of the actus reus. In this case, there was other evidence of the actus reus of the offence based on Constable Tai’s testimony. This included the appellant’s numerous unsuccessful attempts to provide a breath sample and that she did not appear to be experiencing breathing difficulties. [Emphasis added].

[97] Rivera appears to have refined the actus reus exception by holding that it should not be blindly applied but, rather, should only be applied where the trial judge determines that the making of the statement was the “gravamen or foundation of the offence.” While the decision does not elaborate on how the trial judge is to make this determination, one factor appears to be whether there is other evidence of the actus reus. This makes sense. Where the statement in question is only a part of the evidence relied on by the Crown to prove the actus reus, it cannot be said to be the actus reus. Rather, it is likely to be treated by the trier of fact as evidence of an actus reus that the Crown seeks to prove by mostly relying on other evidence.

[98] My reading of Rivera finds support in R. v. Patanjosthi, 2011 ONCJ 181, 275 C.C.C. (3d) 112. In that case, the accused were charged with fraud and it was the Crown’s theory that they had made insurance claims for automobile collisions that had not actually occurred. The Crown sought to rely on collision reports the accused had provided to the police. The accused took the position that because the reports were statutorily compelled, their use in evidence violated their s. 7 Charter right against self-incrimination. Relying on Hanneson, the Crown argued that the actus reus exception applied. Nakatsuru J. (as he then was) was of the view that the reports did not form part of the actus reus, but also stated the following (at para. 37):

Even if I am wrong and the Reports can be considered an aspect of the actus reus of the offences, they are not indispensable and form but a minor part of the overall alleged fraudulent transaction. The real purpose I see in their introduction is to help incriminate the accused in proving that the accident did not happen or did not happen in the way they said it did. In applying the s. 7 analysis in a case-specific manner and using a contextual approach, I am firmly of the view that they should not be admitted in this prosecution.

[99] Restricting the application of the actus reus exception in the way I suggest Rivera does is, in my view, a principled approached. The actus reus exception has the potential effect of insulating unconstitutional state conduct from judicial scrutiny. Applying it whenever the statement at issue can technically be said to form some minor part of the actus reus has the potential to significantly erode Charter protections: Patanjosthi, at para. 33.

(vi) Reconciling the Authorities

[100] As noted earlier, Cobham was not referred to in any of the Ontario appellate jurisprudence which applied Hanneson. The apparent inconsistency between the two decisions was considered by Stribopoulos J. (as he then was) in R. v. Soomal, 2014 ONCJ 220, 10 C.R. (7th) 279, another case involving a refusal to provide a breath sample. Stribopoulos J. suggested that the actus reus exception did not apply to the offence of failing to provide a breath sample (at paras. 75-77):

In coming to the conclusion that it did [in Hanneson], the Court of Appeal would have in mind the circumstances of that case. That is, a situation in which an accused whose Charter rights are violated then makes a false statement to investigators. Similarly, the Court clearly contemplated the analogous circumstances it specifically referenced in its judgment. For example, cases in which, following a Charter violation, an accused assaults, steals, threatens or offers a bribe. With each of these examples, it is difficult to conceive of circumstances in which an accused in custody, following a violation of their Charter rights, would have a good excuse for committing any of the crimes listed by the Court.

In stark contrast, it is not at all difficult to imagine circumstances in which one might rather legitimately refuse to provide a breath sample. The very definition of the offence found in section 254(5) contemplates that possibility.

As a result, I do not believe the Court of Appeal in Hanneson intended for its decision to be determinative in a case like this one, where the violation of a Charter right precedes the refusal to provide a breath sample in response to a demand under subsection 254(3)(a) (i.e. an approved instrument demand). I come to this conclusion for two reasons: first, the Court did not include the refusal to provide a breath sample in the list of offences it enumerated to illustrate the principle it recognized; and second, the circumstances contemplated by the Court of Appeal are distinguishable from a case like this one, where a defendant could potentially have a reasonable excuse for not providing a breath sample.

[101] Stribopoulos J. went on to consider the effect of Cobham (at paras. 78-79):

Finally, in the event that I have construed Hanneson incorrectly and it should be read as foreclosing Ms. Soomal from seeking a remedy under section 24(2) of the Charter, I believe that, at least to the extent that the decision would have this effect, it has been overtaken by subsequent developments.

The Supreme Court of Canada released its decision in R. v. Cobham five years after Hanneson was decided.

After reciting the facts of Cobham and reproducing the portion quoted earlier in these reasons, Stribopoulos J. continued as follows (at para. 82):

I appreciate that the criteria governing the application of section 24(2) have evolved since Cobham was decided. The significance of the decision for the purpose of Ms. Soomal’s case is primarily that the Court does not suggest that evidence of the refusal to provide a breath sample is incapable of being excluded because it constitutes the actus reus of a crime. To the contrary, in Cobham the Court emphasized that because evidence of the refusal was conclusive of guilt trial fairness strongly favoured exclusion. … To the extent that Hanneson might be read to suggest otherwise, I believe the Supreme Court’s decision in Cobham takes precedence and binds me.

Soomal has been adopted by judges of this court in several decisions: R. v. Kraus, 2015 ONSC 2769, 87 M.V.R. (6th) 222, at paras. 57-65; R. v. O’Shea, 2019 ONSC 1514, 372 C.C.C. (3d) 352, at paras. 49-51; R. v. Odemi, 2022 ONSC 2292, at paras. 28-30; R. v. Doobay, 2019 ONSC 7272, 61 M.V.R. (7th) 225, at para. 61. I have been unable to find any case where an offence other than failure to provide a breath sample was considered.

[102] Soomal concludes that the actus reus exception does not apply to the offence of refusing to comply with a breath demand because of the possibility that the accused has a reasonable excuse for the refusal and an accused who has the opportunity to consult counsel may be able to receive advice about whether or not such an excuse applies in his or her situation. As noted in Cobham, such an accused “may not have refused to take the breathalyser test if he had been properly advised under s. 10(b) of his right to duty counsel.” In order words, the offence might never have been committed but for the Charter violation. Thus, as in Ha, the existence of a causal connection is determinative of whether the actus reus exception applies.

[103] This interpretation of Hanneson makes sense. Where there is a causal connection between the statement in question and the Charter violation, the state has played a role in the creation of the evidence and allowing the state to make use of it is inconsistent with the principle against self-incrimination, a unifying principle of Canadian criminal law that is manifested in numerous constitutional and common law rules: R. v. J.J., 2022 SCC 28, 471 D.L.R. (4th) 577, at paras. 144-147; R. v. S.A.B., 2003 SCC 60, [2003] 2 S.C.R. 678, at paras. 33-35; R. v. S.(R.J.), 1995 CanLII 121 (SCC), [1995] 1 S.C.R. 451, at para. 107; R. v. Jones, 1994 CanLII 85 (SCC), [1994] 2 S.C.R. 229, at p. 249. Any limit to Charter protection must be consistent with this principle.

[104] I recognize, as Crown counsel points out, that the statements at issue in Hanneson could be said to be causally connected to the Charter violations in that case, yet the actus reus exception was still applied. While Hanneson remains good law in most respects, it was decided 34 years ago and only seven years after the advent of the Charter. The law has developed since then and Hanneson must now be applied in accordance with those developments, including the importance of the principle against self-incrimination and the principles set out in Cobham and Ha.

(vii) Conclusion on General Principles

[105] It is clear that appellate guidance in this area is much needed. Having attempted to reconcile the various authorities as best I can, I believe the foregoing review of those authorities gives rise to the following principles:

• The actus reus exception applies to an otherwise unconstitutionally obtained statement if the statement is the “gravamen or foundation” of the offence: Rivera, at paras. 91-94.
• The applicability of the exception must be determined by the trial judge, having regard to the nature of the evidence, including whether there is other evidence of the actus reus aside from the statement: Rivera, at para. 94.
• The exception only applies to the offence whose actus reus it is and not to other offences on the same indictment: Ha, at para. 6.
• The exception does not apply where there is a causal connection between the statement and the Charter breach: Cobham, at p. 373, Ha, at para. 8.

(viii) Application

[106] The Crown’s reliance on the actus reus exception is based on its theory that Ms. Owen falsely told the police that Mr. Kerr had not been to her apartment on Friday, March 13, and that she did so to help him avoid detection, knowing that he had committed the murder. There is an evidentiary basis for the Crown’s theory. Even if Ms. Owen’s primary purpose was to distance herself from the murder, if her purpose was also to assist Mr. Kerr, the offence would be made out: R. v. Bedi, 2016 BCSC 1930, at paras. 143-147.

[107] That said, the primary focus of the Crown’s case with respect to the accessory after the fact charge is the allegation that Ms. Owen provided the shooter with a change of clothing immediately after the homicide and temporarily stored the gun for him. The utterances to Det. Dhoum “form but a minor part” of the overall alleged conduct: Patanjosthi, at para. 37. They cannot be said to be the “gravamen or foundation” of the offence.

[108] Furthermore, unlike with, for example, a threat or a bribe, the utterances in this case do not per se make out the actus reus of the offence. With offences such as threatening or bribery, to prove the offence the Crown need only prove that the words in question were spoken together with the requisite mens rea. In contrast, proving that Ms. Owen spoke the words attributed to her by Det. Dhoum would not be sufficient to make out the offence. The Crown would also have to prove a number of additional facts, namely (1) that Mr. Kerr committed murder; (2) that Ms. Owen knew that Mr. Kerr committed murder; and (3) that Ms. Owen’s statement about Mr. Kerr being at her apartment were false. None of this has been proven at this point in the proceedings, and in my view it would be unfair to deny Ms. Owen Charter protections she is otherwise entitled to based on the fact that the Crown has an as of yet unproven theory about the nature of her utterances: Patanjosthi, at para. 22.

[109] While the police apparently viewed Ms. Owen as a “person of interest” and not a suspect, her potential to become a suspect was obvious and the police intended to question her about her connection to a person they believed to have committed a murder. She was detained and “the concerns about self-incrimination … that s. 10(b) seeks to address are present as soon as a detention is effected”: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41; Lafrance, at para. 78. The fact that the Crown can formulate a theory by which the utterances can be said to form part of the actus reus should not, in my view, have the effect of depriving Ms. Owen of the protection afforded by the Charter.

[110] There is a clear causal connection between the police conduct in this case and Ms. Owen’s utterances. There is no indication that Ms. Owen wanted to speak to the police, or that her utterances were spontaneously made. Rather, they were made in response to focussed questions asked in circumstances where she was detained. The utterances would not have been made but for the unlawful detention and the failure to advise her of her right to counsel.

[111] As noted earlier, the actus reus exception would not apply to the conspiracy charge and the court would have to undertake a s. 24(2) analysis with respect to the Charter breaches as they relate to that charge. For the foregoing reasons, I have concluded that the exception does not apply to the accessory after the fact charge either. There must therefore be a s. 24(2) analysis in relation to all of the charges.

F. Section 24(2) of the Charter

(i) Seriousness of the State Conduct

[112] There is no issue that Ms. Owen’s utterances were “obtained in a manner” that breached the Charter as the utterances were causally, temporally and contextually connected to the breaches: Beaver, at para. 95-96. Whether the evidence should be excluded will therefore require a consideration of the three lines of inquiry described in Grant.

[113] The first line of inquiry requires the court to situate the state conduct in issue on a continuum between minor, technical or inadvertent breaches on one end and wilful or reckless disregard of Charter rights on the other. The closer the conduct lies to the more serious end of the continuum, the greater the need for the court to dissociate itself from it: Grant, at paras. 72-74; Le, at para. 143; Beaver, at para. 120.

[114] In this case, the police intentionally took steps to ensure that Ms. Owen remained in or near the building until they could question her. They knew, or at the very least ought to have known, that their actions amounted to a detention for which there was no lawful justification. They could easily have told Ms. Owen that she was free to go, or could have told her that she had the right to consult counsel before they spoke to her. They did neither. In my view, the breaches were on the serious end of the continuum: Le, at paras. 149-150.

(ii) Impact of the Breach

[115] The second line of inquiry requires the court to consider the extent to which the breaches “actually undermined the interests protected by the rights infringed”: Grant, at para. 76; Le, at para. 151.

[116] Section 9 of the Charter is designed to protect individuals from unjustified state interference: Grant, at para. 20; Le, at para. 152. This is not a case where the police had no basis for investigating Ms. Owen. They had a warrant to search her apartment and there is no suggestion that the warrant was not properly issued. However, the detention was of a considerable duration, and included preventing Ms. Owen from picking her child up from the park. In my view, the impact of the s. 9 breach was significant.

[117] With respect to the impact of the s. 10(b) breach, the majority in Lafrance, noted, at para. 97, that “[a]ny breach of [s. 10(b)] ‘undermines the detainee’s right to make a meaningful and informed choice whether to speak, the related right to silence, and, most fundamentally, the protection against testimonial self-incrimination’ (Grant, at para. 95).” In this case, Ms. Owen was not advised of her right to contact counsel, who could have advised her with respect to her right to walk away from the police as well as her right to decline to answer their questions. While the impact of this could have been attenuated if the police had advised her that she could decline to speak to them, this did not occur: Grant, at para. 96. Because of this, I also view the impact of the s. 10(b) breach as significant.

(iii) Society’s Interest in an Adjudication on the Merits

[118] Factors relevant to society’s interest in an adjudication on the merits include the reliability of the evidence, the importance of the evidence to the prosecution’s case, and the seriousness of the offence at issue: Grant, at paras. 79-84; Beaver, at para. 129.

[119] In s. 24(2) cases involving statements, the reliability of the evidence will usually depend on the degree to which the truth of the statement can be trusted: Grant, at para. 97. In this case, it is not the truth of the statement on which the Crown relies but, rather, its falsity. As noted earlier, the statements are only evidence of Ms. Owen being an accessory after the fact if a number of other facts are proven.

[120] While the statements would undoubtedly advance the Crown’s case, as noted earlier they are but a small part of the evidence on which the Crown relies. Excluding the statements would not “effectively gut the prosecution”: Grant, at para. 83.

[121] The offences with which Mr. Owen is charged are undoubtedly extremely serious and the public has a heightened interest in seeing serious cases tried on their merits: Beaver, at para. 130. However, it is well established that the seriousness of the offence can “cut both ways” and “while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is beyond reproach, particularly where the penal stakes for the accused are high”: Grant, at para. 84.

[122] On balance, this line of inquiry favours admission of the evidence, but only slightly.

(iv) Balancing

[123] As discussed, the factors considered in the first two lines of inquiry favour exclusion while the third slightly favours admission. Having balanced them, I conclude that “the strength of the first two lines of inquiry overwhelms the moderate impact on society’s interest in the truth‑seeking function of the criminal trial process”: Lafrance, at para. 101. The statement is excluded.

IV. MR. SAMUEL’S STATEMENT

A. Evidence

(i) Arrest and Transportation to the Police Station

[124] Mr. Samuel was arrested at his home in Oshawa at about 6:00 a.m. on July 7, 2020 by two plainclothes police officers. He was cautioned and advised of his right to counsel, which he indicated he understood. Mr. Samuel identified a specific lawyer he wished to speak to and asked the police if he could retrieve his phone from his home in order to obtain that lawyer’s number. They allowed him to do so.

[125] As Mr. Samuel was being escorted to the police cruiser, he complained that his handcuffs were too tight and one of the officers adjusted them. Mr. Samuel was handed over to two uniformed officers, who placed him in the cruiser. He was again advised of his right to counsel and he again indicated that he understood and wished to speak to his lawyer.

[126] On the way to the police station, Mr. Samuel asked that his handcuffs be loosened. He was told that this could not be done while the car was in motion. When the car arrived at the police station at 6:32 a.m., one of the officers loosened the handcuffs.

(ii) Booking and Contact With Counsel

[127] Mr. Samuel was booked into the station at 6:44 a.m. He was advised of his right to counsel by the Staff Sergeant and again indicated that he wished to speak to his lawyer. He was told that he would be able to do so. Mr. Samuel told the sergeant that his handcuffs had been too tight but were now better. When asked if he was injured, he said that he was not. After undergoing a strip search, Mr. Samuel was placed in a cell at 7:01 a.m.

[128] At 7:18 a.m., two detectives spoke to Mr. Samuel about contacting his lawyer. He told them that his lawyer’s number was in his phone and consented to them retrieving it from his property bag to obtain the number. The police contacted Mr. Samuel’s lawyer, Arif Hussain, who called back at 7:41 a.m. and spoke to him. Evidence respecting the contents of the advice is summarized below.

(iii) The Interview

[129] Mr. Samuel was interviewed by Det. Grieve and D.C. Taborski beginning at 9:14 a.m. He was provided with the primary and secondary cautions, the latter of which was explained in ordinary language. Mr. Samuel indicated that he understood and when asked whether he had been pressured by any other police officer, responded, “No, no.”

[130] Det. Grieve told Mr. Samuel that the police were “independent investigators” whose job is was to “get as much information as possible.” He explained that all the information they gather will be provided to the Crown Attorney and “ultimately it’s the judge that makes the decision.” Mr. Samuel indicated that he understood.

[131] Det. Grieve then asked Mr. Samuel questions about a variety of topics. Mr. Samuel admitted knowing Mr. Kerr, but denied that they were friends. He acknowledged renting the car and driving Mr. Kerr to various locations. At one point, the following exchange took place:

GRIEVE: So you rented a car for the day and you find S.J. – you find him on the street corner you said that day and he asked you to drive him somewhere. Okay. And you drove him somewhere. And at what point in the day, because you went to an address and then you went to the convenience store and then you went to another place after before you dropped him off. When did he commit the murder at that time. When do you think he did it?

SAMUEL: [Unintelligible].

GRIEVE: Okay – let’s go through that day one more time. March 13th you rent the vehicle. Is that fair – the Enterprise? The picture I showed you at 9:17, is that correct? Correct me if I’m wrong.

SAMUEL: yeah – I – we go all of that but it’s getting – can I talk to a lawyer or somebody? It’s getting confusing now.

Det. Grieve indicated that he was not trying to confuse Mr. Samuel and asked some more questions about the events of March 13. He repeated that Mr. Samuel was not obliged to speak to him. He then asked Mr. Samuel if he still wished to speak to his lawyer and Mr. Samuel indicated that he did. At 10:52 a.m., Mr. Samuel was escorted out of the interview room.

[132] The interview resumed at 11:30 a.m. after Mr. Samuel had spoken to his lawyer. The interview ended at 12:30 p.m.

[133] When asked during his testimony on the voir dire whether he understood that what he was saying to the police could be used against him, Mr. Samuel responded, “For the most part, yes.”

(iv) Psychological Evidence

[134] Brandie Stevenson, a psychological associate registered with the Ontario College of Psychologists, was permitted to give opinion evidence about the assessment and testing of cognitive abilities. She has a Master of Arts in Applied Clinical Psychology from the Chicago School of Professional Psychology. According to her curriculum vitae, Ms. Stevenson has been qualified as an expert witness in Ontario courts on four prior occasions. She acknowledged in cross-examination that she had not actually testified in two of those cases. One had been adjourned and in the other, she had submitted a report but had never been called as a witness as the accused had pleaded guilty.

[135] Mr. Samuel underwent a number of psychological tests administered by Ms. Stevenson or a psychometrist working with her. He scored 65 on the Weschler Adult Intelligence Scale – Fourth Edition (“WAIS-IV”), which according to Ms. Stevenson put him in the first percentile. He scored in the second percentile on the Verbal Comprehension Index (“VCI”), which measures an individual’s ability to understand, think and learn using language and information that has been previously learned. He also scored in the second percentile on the Working Memory Index (“WMI”), which measures an individual’s ability to absorb and hold new information and combine it with previously learned information. A number of other tests were administered, with similar results in terms of the percentiles.

[136] Ms. Stevenson prepared an initial report dated April 2, 2023. On April 6, 2023, after she learned that the Crown had retained its own expert, she submitted a revised report which added the results of the Test of Memory Malingering (“TOMM”), which is designed to distinguish between bona fide memory-impaired subjects and malingerers. The test is administered twice and a score below 25 on the first test or below 45 on the second test is said to be indicative of malingering. Mr. Samuel scored 25 on the first test and 43 on the second test. According to Ms. Stevenson, Mr. Samuel’s scores were “compared with normative data for the clinical sample of individuals with cognitive impairment” and 7.6% of respondents had scores similar to Mr. Samuel’s on the second test and 19.1% had scores similar to Mr. Samuel’s on the first test. Based on this, in Ms. Stevenson’s opinion “his deviation from the normative baseline is not particularly exceptional.” She concluded that Mr. Samuel’s TOMM score “viewed in the context of [his] history, information from collateral sources, and results across other testing measures” meant that identification of malingering was not appropriate.

[137] Ms. Stevenson acknowledged that Mr. Samuel’s TOMM scores were “red flags” and that Mr. Samuel’s scores indicated that the test should be administered for a third time. She did not administer a third test, however, because Mr. Samuel took a long time to complete the first two. Ms. Stevenson agreed that the fact that Mr. Samuel took a long time to complete the test was itself a “red flag.”

[138] In her report, Ms. Stevenson concluded:

Based on Mr. Samuel’s presentation throughout testing, his documented difficulties with cognitive functioning, and his present test results, we believe that it is most unlikely that Mr. Samuel would have a passably sufficient understanding of his rights as they were communicated to him by the police. Further, the results of our assessment suggest that Mr. Samuel’s ability to meaningfully participate in verbal questioning without frequent repetition of questions, visual aids, and the comfort to ask clarifying questions without repercussions is highly unlikely.

At the time Ms. Stevenson prepared her report, she had not viewed the video recording of Mr. Samuel’s police interview, nor had she read a transcript of it. She obtained the recording a week prior to testifying on the voir dire. She testified that viewing it did not change her opinion.

(v) The Contents of the Legal Advice

(a) Mr. Samuel’s Evidence

[139] Mr. Samuel swore an affidavit that was filed on his Charter application. He stated that in March 2020, he was advised by the car rental company that the car he had rented had been seized by the police and that he owed the company money as a result. At some point after March 30, 2020, Mr. Samuel learned that Mr. Kerr had been arrested.

[140] After hearing about Mr. Kerr’s arrest, Mr. Samuel conducted a Google search to find a lawyer. He chose a lawyer, Arif Hussain, called him, and explained that he been asked for money by the rental company and had heard that “something bad had happened to the man I had been driving around in the rental car and it involved the police but I didn’t know anything about it.” According to Mr. Samuel, Mr. Hussain said, “If you didn’t do anything, you didn’t do anything. They may come and ask you some questions but if you didn’t know anything about it you should be fine.”

[141] According to Mr. Samuel, when he contacted Mr. Hussain after his arrest while at the police station, Mr. Hussain said, “They are going to ask you some questions. That’s fine because you didn’t do anything. Just answer the questions.” During his cross-examination on the affidavit, Mr. Samuel indicated that this was a verbatim description of the conversation.

[142] When Mr. Samuel spoke to Mr. Hussain the second time during the interview, he gave the same advice. As a result of this advice, Mr. Samuel believed it to be in his best interest to speak to the police.

[143] During his evidence on the voir dire, Mr. Samuel testified that after his arrest, he spoke to Mr. Hussain, who told him that he was preparing a bail application for him. At Mr. Hussain’s request, Mr. Samuel asked a friend to give Mr. Hussain $5000 in cash and it was his understanding that his friend did so. He eventually retained other counsel.

(b) Counsel’s Evidence

[144] The Crown called Mr. Hussain as a witness on the voir dire.[^8] Mr. Hussain was called to the bar in 2017. After his call, he had a few of his own clients, worked as a per diem Assistant Crown Attorney, and was employed by the Sykes Corporation as duty counsel to provide legal advice by telephone to individuals under arrest.

[145] Mr. Hussain testified that he received about two weeks of duty counsel training. As duty counsel, he received calls from people throughout Ontario who had been arrested and had opted to use the 1-800 number provided by the police to speak to duty counsel. Mr. Hussain testified that his advice “100% of the time” was to tell the detainee that he or she had the right not to say anything and not to answer questions and that it was his opinion that they should exercise that right. He never asked for any details about the arrest or the allegations the person was facing.

[146] Mr. Hussain testified that he recalled receiving a call from Mr. Samuel in March 2020 about a rental car, but did not recall what advice he gave him. He testified that when he was contacted by the police on July 7, 2020, Mr. Samuel’s name was not familiar to him but he recalled the previous conversation after speaking to Mr. Samuel.

[147] According to Mr. Hussain, when he spoke to Mr. Samuel on July 7, he gave him the same advice he had been trained to give as duty counsel, which was to tell him that he had the right not to say anything or answer questions and that it was Mr. Hussain’s opinion that he should exercise that right. Mr. Samuel appeared to understand this. Mr. Hussain did not ask Mr. Samuel any questions about the allegations because “that is my training” and he did not want the police to overhear the conversation. He did not advise Mr. Samuel with respect to any strategies he could take while being questioned or tell him about any tactics the police might employ. When he received a second call from Mr. Samuel later, he gave the same advice. Mr. Hussain did not make any notes of his conversations with Mr. Samuel, but acknowledges that he should have done so.

[148] Mr. Hussain initially testified that Mr. Samuel told him that he did not wish to retain him either on the same day as the arrest or a few days after. He denied ever being retained by Mr. Samuel or having told Mr. Samuel that he was working on a bail application. When asked whether he received $5000 from Mr. Samuel’s friend, Mr. Hussain said, “I don’t have a recollection of that.”

[149] After being confronted with an e-mail he sent to the Crown over two weeks after Mr. Samuel’s arrest in which he stated that he was retained and working on a bail application, Mr. Hussain acknowledged that his previous testimony had been wrong and that his memory was now “refreshed.” He maintained, however, that despite what he said in the e-mail, he had never actually been retained but was “in the process of being retained.” He agreed that he never received a legal aid certificate. When asked again if he received a $5000 cash retainer, Mr. Hussain repeated that he had “no recollection of that.”

B. Voluntariness

(i) Overview

[150] Counsel submits that the Crown has failed to prove beyond a reasonable doubt that Mr. Samuel’s statement was voluntary for two reasons: (1) the circumstances in which the statement was taken amount to oppression because Mr. Samuel was in pain from having had handcuffs on that were too tight and because he was not offered food or water; and (2) Mr. Samuel did not have an operating mind, as that term is understood in the jurisprudence.

(ii) Oppression

[151] Mr. Samuel stated in his affidavit that during his interview, his right wrist was numb and both wrists were irritated, causing him pain. He also stated that he was feeling light-headed because had not had breakfast and had nothing to eat or drink since his arrest.

[152] I do not accept that these factors, alone or cumulatively, created circumstances of oppression, that is, conditions that were “distasteful enough that … the suspect would make a stress-compliant confession to escape those conditions” or such that Mr. Samuel would come to doubt his own memory: Oickle, at para. 58; Beaver, at para. 49.

[153] Mr. Samuel had told the booking sergeant that his cuffs had been on too tight but were now better and responded negatively when asked whether he was injured. While he stated in his affidavit that his wrists hurt, he did not say that this had any effect on the voluntariness of his statement.

[154] It appears that Mr. Samuel was not offered any food or water. He should have been. The police should ensure that detainees are provided with food and water, not only because they are obliged to treat prisoners humanely, but also because in some circumstances, failing to do so could contribute to a finding that a statement was not voluntary: Oickle, at para. 60; R. v. Thaher, 2015 ONCJ 113, at para. 61. This is not such a case.

(iii) Operating Mind

[155] One of the things that the Crown must prove to establish the voluntariness of a statement is that at the time the statement was made, the accused had an operating mind, that is, he or she “possessed the limited cognitive ability to understand what they were saying and to comprehend that the statement might be used as evidence in criminal proceedings”: R. v. Tessier, 2022 SCC 35, at para. 8; R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914, at p. 939.

[156] It is clear from viewing the video recording of the statement that Mr. Samuel understood what he was saying and knew that he was speaking to the police. He was told this by the police and also acknowledged in his testimony on the voir dire that “for the most part,” he knew that what he was saying could be used as evidence. The fact that he asked for a second consultation with counsel when Det. Grieve began to press him on whether he was aware that there had been a murder confirms this.

[157] I do not accept Ms. Stevenson’s opinion that Mr. Samuel did not have an operating mind. There are a number of problems with her evidence. The fact that her curriculum vitae is misleading with respect to the number of times she has been qualified as a witness is concerning. Her insistence on trying to explain away the “red flags” related to the TOMM results suggests a troubling lack of objectivity, as is the fact that she omitted to include the TOMM results in her initial report. Most troubling, however, is the fact that Ms. Stevenson was prepared to opine on Mr. Samuel’s abilities during the police interview without ever having viewed the interview or read a transcript of it.

[158] I accept that Mr. Samuel has some cognitive challenges, although I base that conclusion on my own observations of him during his testimony and on the video recording rather than Ms. Stevenson’s opinion. However, Mr. Samuel lived independently, operated his own business, and obtained a driver’s licence and licences to operate certain types of equipment. I have no doubt that he had an operating mind.

[159] For these reasons, I am satisfied beyond a reasonable doubt that Mr. Samuel’s statement was voluntary.

C. The Charter Applications

(i) Sections 7 and 12 of the Charter

[160] Counsel for Mr. Samuel alleges violations of ss. 7, 12 and 10(b) of the Charter. As I understand his submissions, the first two relate to Mr. Samuel’s handcuffs being on too tight. The s. 10(b) violation is based on the allegation that he received incompetent legal advice from counsel at the time of his arrest.

[161] The alleged s. 7 and s. 12 violations appear to be based on the same factual foundation, namely, the handcuffing. While I do not doubt that Mr. Samuel had sore wrists, there is no indication that the police had intentionally put the handcuffs on in such a way as to cause him pain. This was nowhere near being cruel or unusual punishment of the type that would constitute a violation of s. 7 or s. 12 of the Charter.

(ii) Section 10(b) of the Charter

[162] There is a factual dispute with respect to the advice Mr. Samuel was given. According to him, he was essentially told that he should talk to the police. According to Mr. Hussain, he was advised in accordance with Mr. Hussain’s duty counsel training and told that he had the right not to answer questions and that it was Mr. Hussain’s opinion that he should exercise that right.

[163] I have some difficulty with Mr. Samuel’s claim that he was able to remember verbatim what he was told, especially in light of the evidence of his own expert that he scored in the third percentile on the WMI assessment, which was designed to measure his ability to recall meaningful verbal information.

[164] I also have serious concerns about Mr. Hussain’s evidence. He initially stated that his services were dispensed with by Mr. Samuel very soon after the arrest and denied being retained by Mr. Samuel or working on a bail application. When confronted with an e-mail he sent to Crown counsel about two weeks after the arrest in which he claimed to be retained and stated that he was working on a bail application, he claimed that his memory was “refreshed” with respect to the bail application, but still maintained that he had not been retained, despite claiming in the e-mail that he was.

[165] I found Mr. Hussain’s response to the question of whether he received a $5000 cash retainer, which was to say “I don’t have a recollection of that” rather than simply deny it, to be somewhat odd. At the time, Mr. Hussain was a recently called lawyer attempting to establish a practice while working as duty counsel and doing per diem Crown work, presumably to make ends meet. One would expect that he would have remembered whether he received a $5000 cash retainer for a first degree murder case.

[166] All of that said, it is more likely than not that Mr. Hussain gave Mr. Samuel advice in accordance with his duty counsel training and told him that he had the right not to say anything and that it was Mr. Hussain’s opinion that he should not do so.

[167] Mr. Hussain’s training is premised on an impoverished view of counsel’s role as requiring nothing more than that the same words be parroted in every case, regardless of the circumstances. Counsel’s role is broader than that, as was explained by Binnie J. in his dissent in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at paras. 85-87:

A detainee needs to “retain and instruct counsel” because the law is a complicated place, and the stakes may be high (certainly in a second degree murder charge). The detainee is isolated and in a position of vulnerability. The Charter recognizes that in the interest of fairness, the detainee is entitled to help (or “l’assistance d’un avocat”) not only in relation to the content of his or her rights but on how to exercise those rights in dealing with the authorities: R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233; R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3; and R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151. There is a corresponding duty imposed on the police to respect the s. 10(b) right.

The appellant already knew from the standard police warning that he need say nothing and that whatever he said might be recorded and used in evidence. The police interrogator, Sgt. Skrine, told the appellant on more than one occasion that he did not have to say anything. It cannot be correct to limit the role of defence counsel under s. 10(b) simply to echo what the police have already said and to urge silence regardless of what may emerge in the course of the interrogation (plus perhaps a few hypothetical examples of what may occur during the forthcoming encounter with the police). As the Ontario Criminal Lawyers’ Association points out, this much could be accomplished by a recorded message:

[Y]ou have reached counsel; keep your mouth shut; press one to repeat this message. [Transcript, at p. 22]

The role of counsel at this stage of the investigation is to help put the detainee in a position to navigate his or her legal problems with the informed capacity the detainee could muster alone if he or she possessed the requisite legal knowledge and experience. The choice whether or not to cooperate with the investigation is up to the detainee — not the lawyer — but it should be an informed choice.

[168] While Mr. Hussain’s advice was, in my view, deficient, I cannot say that it was incorrect or incompetent. In light of my conclusion, I need not delve into the issue of whether incompetent legal advice can constitute a violation of s. 10(b) of the Charter.

[169] For these reasons, the Charter application is dismissed.

VI. DISPOSITION

[170] The statements made by Mr. Kerr and Mr. Samuel are admitted. The statement made by Ms. Owen is excluded.

Justice P.A. Schreck

Released: June 15, 2023

[^1]: The admissibility of Mr. Balasubramanian’s statements is not contested. [^2]: Neither Det. Grieve nor Det. Dhoum testified on the voir dire as the parties agreed to rely on transcripts of their evidence from the preliminary inquiry. [^3]: It is not entirely clear that Ms. Owen went to the 15th floor. Det. Grieve testified that she had made arrangements to take the children there and that he had an officer go with “them.” P.C. Copeland, one of the officers who went to the 15th floor, said that he went there with the mother of the children. According to Det. Dhoum, however, it was Lorella Owen who took the children there. [^4]: It appears that Jessica Owen returned upstairs at some point and was interviewed by Det. Grieve in the hallway, beginning at 6:08 p.m. [^5]: The exception was applied earlier in R. v. Gallaher (1977), 1977 CanLII 2097 (BC SC), 37 C.C.C. (2d) 191 (B.C. Co. Ct.), where Proudfoot Co. Ct. J. noted at p. 192 that “[t]here appears to be no authority that deals with this issue. Counsel could not present me with an authority and I myself have been unsuccessful in finding a decision dealing with the point.” [^6]: R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, R. v. Pozniak, 1994 CanLII 66 (SCC), [1994] 3 S.C.R. 310 and R. v. Harper, 1994 CanLII 68 (SCC), [1994] 3 S.C.R. 343. [^7]: The police officer had not been required to advise the accused of her right to counsel in light of R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, which held that the operation of s. 10(b) of the Charter is justifiably suspended in the roadside detention context, but any evidence obtained could not be used at trial. [^8]: Mr. Samuel waived solicitor-client privilege.