COURT FILE NO.: CR 22-125 DATE: 2024/03/08 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – COREY FULFORD Accused
Counsel: Mieszko Wlodarczyk, for the Crown Dan Baker, for the Accused
Heard: January 3 and January 24, 2024, with written submissions filed on January 31, February 4, and February 7, 2024
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 486.4(1) of the Criminal Code, no information that could identify the person described in this judgment as the complainant may be published, broadcast, or transmitted in any manner. These reasons have been anonymized to permit their publication.
Ellies J.
REASONS FOR DECISION ON VOIR DIRE
OVERVIEW
[1] In this blended voir dire, the Crown seeks a ruling that a statement given by the accused to the police shortly after his arrest was given voluntarily and, therefore, can be used in evidence against him on charges relating to the alleged improper touching of a person under the age of 16 years. The accused opposes the Crown’s application and brings his own application to exclude the statement on the basis that his right under the Canadian Charter of Rights and Freedoms to retain and instruct counsel without delay was infringed because the police did not contact duty counsel without delay.
[2] Following the delivery of written submissions made on behalf of both parties, I released an endorsement dated February 8, 2024, advising that the Crown’s application was allowed and the accused’s application was dismissed for reasons to follow. These are my reasons.
BACKGROUND
The Allegations
[3] The Crown alleges that the accused invited the complainant, the daughter of a neighbor, to play a videogame at the accused’s house on a day in August 2016. The accused was in his early 20s at the time. The complainant was age 10.
[4] The allegation is that the accused touched the complainant while she was sitting on the accused’s lap and later while they were on the bed in his bedroom.
The Accused’s Arrest
[5] The allegations led to an investigation by Detective Constable Stacy Jackson of the North Bay Police Service which resulted in the accused’s arrest on June 10, 2021. On that date, Detective Constable Jackson and two other members of the North Bay Police Service, Detective Constable Dagg and Constable Mastrangelo, attended at the Crisis Centre, where the accused was staying. They met with the accused in a small office not far from the main entrance to the building.
[6] At about 10:38 a.m., the accused was arrested by Constable Mastrangelo and advised by Detective Constable Jackson that he was being arrested on charges of sexual assault and sexual interference. Detective Constable Jackson then advised the accused of his right to counsel using the prepared script contained in his standard police-issue notebook. The script included information that the accused could contact a lawyer of his choice or free duty counsel provided by Legal Aid. When Detective Constable Jackson asked the accused if he wished to call a lawyer, the accused advised him that he wished to call duty counsel. The accused was then read what is commonly referred to as the primary and secondary cautions. The primary caution refers to the fact that the accused need not say anything, but that whatever he says may be admitted as evidence. The secondary caution seeks to advise the accused that he should not be influenced to say anything by any conversation he has had with any other person in authority.
[7] There is no issue about whether the accused was properly advised of his right to counsel. The issue is whether he was given a proper opportunity to exercise his right.
[8] Following the reading of these rights and cautions, the accused was escorted through the main entrance of the Crisis Centre to a marked police cruiser waiting outside. He was searched by Constable Mastrangelo before being placed in the back of the vehicle and was driven to police headquarters by Constable Mastrangelo, with Detective Constable Jackson sitting in the passenger seat. The cruiser left the Crisis Centre at about 10:44 a.m. There was no conversation on the way to the station.
[9] The Crisis Centre and the police station are located very close to one another. Therefore, the car carrying the accused arrived at the station about one minute later, at 10:45 a.m. From that point, more or less to the point at which the accused was placed in a holding cell at the station, his interaction with the police was videorecorded by a series of cameras placed in different locations throughout the station. The cameras capture practically every moment the accused spent with the officers from the time he arrived in the garage at the station until the time his statement to the police was complete. The videos are very clear. However, there is no audio. Because the accused’s arrest occurred in 2021, during the COVID-19 pandemic, everyone involved was wearing a mask. Therefore, it is not always possible to determine from the video whether someone was talking and impossible to determine what they might have been saying.
[10] At the police station, the accused was paraded before the acting staff sergeant, Sergeant Cook. Staff Sergeant Cook again read the accused his rights to counsel and the two cautions. Thereafter, Special Constable Mueller used a computerized questionnaire referred to in the evidence as the “Custody Module” to ask the accused a series of questions, the purpose of which was to obtain information about the accused’s condition for health and safety reasons.
[11] The booking process lasted from approximately 10:47 a.m. to 10:53 a.m. When it was complete, the accused was escorted by Special Constable Mueller and Detective Constable Jackson from the booking area to the cell block. The video surveillance shows a discussion of about 30 seconds taking place between the accused in the cell and the officers outside of it. The accused is then left alone in his cell for about 40 minutes. According to the evidence of Detective Constable Jackson, he placed a call to the Legal Aid duty counsel office at about 11:01 a.m. He left a message on an automated voice mail system in which he answered certain questions, including whether the accused would be released from police custody or held for bail. He believes that he advised that the accused would be released, although that is not what happened.
[12] At 11:33 a.m., Detective Constable Jackson was advised that duty counsel was on the phone. Apparently, he spoke to the lawyer to obtain her name, which he had in his notebook. The videotaped surveillance shows that Special Constable Mueller then went to the cells to retrieve the accused, who was taken to and placed in what appears to be a soundproof booth located behind the desk in the booking area. He remained in the room and spoke with duty counsel for about 10 minutes. He was escorted back to his cell afterwards by Detective Constable Jackson.
The Accused's Statement
[13] At 12:04 p.m., the accused was escorted to an interview room also located just off the booking area. The interview was video and audio recorded and was monitored from another room by Detective Constable Dagg.
[14] The interview lasted approximately 54 minutes. It began with Detective Constable Jackson explaining the nature of the charges and then summarizing the advice he had given to the accused about his right to counsel and about statements, all of which the accused indicted he understood.
[15] Immediately after the officer asked the accused if he knew what the charges related to, the accused answered in the affirmative and went on to talk about spending time with a neighbor’s daughter four or five years before, first at a park and then in his room. The accused described having the complainant sit on his lap while she played a videogame using a steering wheel. Later in the interview, the accused told the officer that he had a learning disability and that he sometimes says and does things he does not mean to say or do. He admitted to the officer that the time he spent with the girl that day was “probably” one of those times. The accused admitted he might have laid down on the bed with the girl and might have cuddled her and kissed her on the cheek or on the head.
[16] At about 12:36 p.m., or 32 minutes into the interview, Detective Constable Jackson left the interview room to confer with Detective Constable Dagg. He returned about four minutes later to ask some questions about an incident involving the accused and his mother in 2017, in which the police were called. As far as I can tell, this incident is irrelevant and would therefore likely be inadmissible at trial. So, too, is the next portion of the interview in which the officer asks the accused about his relationships with girls his own age and whether he watches pornography.
[17] In the final portion of the interview, the officer told the accused that he was going to be held in custody at the police station overnight awaiting a bail hearing the next day. He explained that the police wanted to have a condition imposed that the accused not be around anyone under the age of 16, but that they did not have the power to impose such a condition themselves.
[18] The interview concluded at approximately 12:58 p.m. and the accused was then returned to his cell. Although there is some confusion about it in the testimony of the police witnesses, it is clear from the court file that the accused was detained overnight and released the next day at the courthouse.
POSITIONS OF THE PARTIES
[19] The Crown submits that it has proven beyond a reasonable doubt that the statement given by the accused to Detective Constable Jackson was given freely and voluntarily and is, therefore, admissible at his trial. On behalf of the accused, Mr. Baker argues that the Crown has failed to satisfy its onus of proof beyond a reasonable doubt because of gaps in the evidence of the police witnesses who were called and because of the Crown’s failure to call Special Constable Mueller at all.
[20] In a separate application, the accused submits that the police breached their duty to facilitate access by him to duty counsel as soon as possible by failing to place a call to duty counsel either while he was outside of the Crisis Center waiting to be transported, while he was on the way to the police station, or while he was being booked. The accused submits that this failure resulted in unreasonable delay. On behalf of the accused, Mr. Baker submits that, as a result of the delay, the accused ended up having to spend a night in police custody that he would not otherwise have had to spend. He submits that admitting the accused’s statement would bring the administration of justice into disrepute in these circumstances and that, therefore, the statement ought to be excluded under s. 24(2) of the Charter.
ISSUES
[21] These applications raise three issues:
(1) Has the Crown proven beyond a reasonable doubt that the accused gave his statement voluntarily? (2) Did the police fail to facilitate the accused's access to counsel without delay? (3) If so, should the statement given by the accused be excluded under s. 24(2) of the Charter?
ANALYSIS
Has the Crown proven beyond a reasonable doubt that the accused gave his statement voluntarily?
[22] Statements made by an accused person out of court to a person in authority are presumptively inadmissible against the accused at trial: R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 11. To gain admission, the Crown must prove beyond a reasonable doubt that the accused gave his statement freely and voluntarily: Ibrahim v. The King, [1914] A.C. 599 (P.C.); Erven v. R., [1979] 1 S.C.R. 926, at p. 931, 92 D.L.R. (3d) 507; R. v. Hodgson, [1998] 2 S.C.R. 449, at para. 57, 163 DLR (4th) 577. This is known as the “confessions rule.”
[23] In R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, the Supreme Court of Canada engaged in a detailed review of the confessions rule. As Iacobucci J. held on behalf of the majority of the court, the rule is concerned not only with the reliability of confessions, but also with the integrity of the criminal justice system. At para. 47, Iacobucci J. pointed out that, while the variety of circumstances that might affect the voluntariness of a confession prevents any hard and fast rules, those circumstances can be broken down into four areas, namely:
(a) the presence of threats or promises; (b) the existence of oppressive circumstances; (c) the absence of an operating mind on the part of an accused; and (d) the use of police trickery.
[24] To meet the burden of proof, the Crown must adduce evidence of “all of the facts” surrounding the taking of the statement which should include the evidence of all the persons in authority present at the time the statement was made: Sankey v. R., [1927] S.C.R. 436, at p. 441; R. v. Thiffault, [1933] S.C.R. 509, at p. 515. This principle has been interpreted by some commentators as requiring that the Crown call all witnesses connected directly or indirectly with the statement: René J. Marin, Admissibility of Statements, 9th ed. (Toronto: Thomson Reuters Canada, 2022) at 6:20.
[25] The accused submits that the evidence called by the Crown falls short of what is required to establish voluntariness in this case. He focusses on three main “gaps” in the evidence.
[26] First, he submits that, although the evidence establishes that Detective Constable Dagg collected the accused’s belongings from the Crisis Centre at the time of his arrest and that the police officers present knew that the accused’s consent was required to do so, none of the police officers could testify with any specificity as to what was said or done to obtain the accused’s consent.
[27] Second, he submits that, although the video recording shows that Detective Constable Jackson and Special Constable Mueller had a discussion with the accused after the accused was first placed in a cell, Detective Constable Jackson could not remember exactly what was said and the Crown failed altogether to call Special Constable Mueller as a witness.
[28] Finally, the accused points out that Detective Constable Jackson had no note of what he said as he brought the accused from his cell to the interview room in which the accused gave his statement.
[29] I am not able to agree with the accused’s submissions in this regard.
[30] There is no absolute rule that the Crown must call each and every police officer who had any contact with the accused prior to the accused giving a statement: R. v. Bools, 2016 ONCA 554, at para. 5; R. v. Haughton (No. 2) (1983), 38 O.R. (2d) 496 (Co. Ct.). As the Court of Appeal wrote in Bools, at para 5:
Contrary to the appellant’s suggestions, there is no rule of law that the Crown must call each and every police officer who had any contact with the appellant prior to giving his statement. The onus is on the Crown to prove voluntariness in the context of the facts of the particular case. While the unexplained absence of a witness may raise a reasonable doubt, this is to be assessed by the trial judge on the basis of the record.
[31] I have the advantage of clear video surveillance footage showing the interaction between the accused and the police throughout the entire time the accused was at the police station prior to giving his statement. Special Constable Mueller’s interactions with the accused were all very brief. It is obvious that his task as a special constable was to escort the accused from one area to another area, all of which were in close proximity to one another. As a special constable, it is unlikely he would have any motive to convey what might be construed as an inducement or a threat. Nor did he have time to convey either of them inadvertently.
[32] With respect to the conversation between Detective Constable Jackson, Special Constable Mueller, and the accused, after the accused was first placed in the cell, Detective Constable Jackson testified that he explained what would happen next, namely that he was contacting duty counsel. With respect to what was said when Detective Constable Jackson escorted the accused to the interview room, the officer testified that he usually just opens the cell door, leaves it open, and asks the accused to follow him to where the interview is conducted. If the accused refuses to do so, no interview takes place. The video surveillance supports this testimony. This is exactly what appears to have happened here.
[33] It is true that Detective Constable Jackson had no note of these conversations in his notebook. However, I do not see that failure as significant. I accept the evidence of Detective Constable Jackson. I found his evidence to be reliable, generally speaking, and credible. He made concessions, where appropriate, even when those concessions might have impacted his evidence negatively. For example, he admitted readily that the police should have ensured that they had the accused’s consent to obtain his possessions from the Crisis Centre, a point to which I will return shortly. He also admitted it would have been better if he had used a digital voice recorder to record all of his conversations with the accused.
[34] I am satisfied from the evidence of Detective Constable Jackson that nothing said to the accused during the conversations in question could have amounted to either an inducement or a threat or could otherwise have rendered involuntary the statement the accused later gave.
[35] Finally, I turn to the accused’s submissions about the evidence surrounding the collection of his belongings at the Crisis Centre. Again, Detective Constable Jackson had no notes about how the police came to collect the clothing and no clear recollection about it. Nor did Detective Constable Dagg have any clear recollection of how he came to possess the belongings, apart from the fact that they were provided to him by Crisis Centre staff. However, Detective Constable Dagg did make a note that the accused had requested his shoes, medication and identification while they were all in the room in which the accused was placed under arrest. Therefore, I am satisfied that any conversation surrounding the accused’s belongings was brief and so peripheral that Detective Constable Jackson’s failure to make a note about it is both understandable and inconsequential.
[36] I am satisfied based on all of the evidence I saw and heard that the accused’s statement was given voluntarily. In my view, this is obvious from the video recording of the statement itself. While I agree with Detective Constable Dagg that the accused does appear nervous at first, scratching his arm frequently, I also agree that he appeared to relax as time passed and became comfortable after a few moments.
[37] There is nothing in the behaviour or questions of Detective Constable Jackson that could constitute a threat or an inducement, and no such submission has been made on behalf of the accused.
[38] I am, therefore, satisfied beyond a reasonable doubt that the accused’s statement was given freely and voluntarily and may be admitted into evidence during his trial.
[39] I turn now to the accused’s application.
Did the police fail to facilitate the accused’s access to counsel without delay?
[40] Section 10(b) of the Charter provides that everyone has the right upon arrest or detention to retain and instruct counsel without delay and to be informed of that right. The section has both an informational and an implementational component: R. v. Bartle, 1994 SCC 64, [1994] 3 S.C.R. 173, at p. 192. At issue in this case is the implementational component.
[41] The implementational component of s. 10(b) imposes two duties on the police where a detainee expresses a desire to speak with counsel. The first is to provide the detainee with a reasonable opportunity to exercise the right to speak to a lawyer. The second is to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had an opportunity to speak to counsel: R. v. Manninen, 1987 SCC 67, [1987] 1 S.C.R. 1233, at pp. 1241-1243; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 29-30. Only the first of these two duties is at issue here.
[42] The duty to provide a detainee with a reasonable opportunity to speak to counsel requires the police to facilitate access to a lawyer at the first available opportunity: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 24. This includes allowing the detainee to use a telephone for that purpose if one is available: Manninen, at p. 1242.
[43] On behalf of the accused, Mr. Baker submits that the police failed in their duty to facilitate access by the accused to a lawyer at the first available opportunity by waiting until he was lodged in the cell to contact duty counsel. He contends that there were three earlier opportunities upon which the police could have called duty counsel: first, outside of the Crisis Centre, before the accused was placed in the cruiser; second, in the police car on the way to the police station; or, alternatively, as soon as the police arrived at the station.
[44] I do not accept this submission. None of the police witnesses were cross-examined during the voir dire about any of these possibilities. The closest the defence came was to questioning Detective Constable Jackson about the fact that he “chose” to remain in the booking area while the accused was being processed. Detective Constable Jackson was never asked about the feasibility of calling duty counsel on any of these occasions. He was never asked, for example, whether the accused had a cell phone. There is no obligation on a police officer to allow the accused to use the officer’s phone: Taylor, at para. 27.
[45] In the absence of proper cross-examination about the feasibility of calling duty counsel on any of these occasions, I am not prepared to find that allowing the accused to do so would have been reasonable.
[46] While it is true that Detective Constable Jackson testified that it is not unusual to wait for up to an hour for duty counsel to call back, there is no evidence that it always or even often takes that long. Detective Constable Jackson testified that delays of 30 minutes are normal. However, there is no evidence that it always takes that long. Clearly, the delay depends on the demands placed on the service. If demand is low, duty counsel might return the call more or less immediately. If that occurred, and the accused was standing outside the Crisis Centre, the police would have to remain close enough to ensure that the accused neither tried to flee nor tried to hurt himself. This would deprive the accused of the privacy to which he is entitled while consulting counsel. If duty counsel returned the call while the accused was being transported to the police station, the police would have to leave the car in order to provide that privacy. This would make no sense in a case such as this where the police station is only a minute or so away.
[47] With respect to the possibility of calling during the booking procedure, Constable Mastrangelo testified in the video surveillance evidence and confirmed that the booking procedure concludes with a more thorough search of the accused than that which takes place immediately after his arrest. Had duty counsel been contacted and returned the call before the booking procedure was complete, this important step in the booking process would have been interrupted.
[48] As the Supreme Court of Canada noted in Bartle, at p. 192, a police officer’s implementational duties under s. 10(b) are necessarily limited in urgent or dangerous situations. I find it reasonable for the police to wait to contact duty counsel until after the accused has been thoroughly searched, provided that the thorough search takes place within a reasonable time following the accused’s arrest. That is what happened here.
[49] For these reasons, I do not find the delay that resulted from not calling duty counsel until after the accused was placed in the cells to be unreasonable. However, I do have concerns with the delay that arose between that time and the time at which Detective Constable Jackson placed the call to duty counsel. In cross-examination, Detective Constable Jackson agreed that there were eight to nine minutes between the time the accused was lodged in the cell at approximately 10:53 a.m. and the time at which he called duty counsel, at approximately 11:01 a.m. He could not remember what he was doing during that time and, in line with his honest answers to other questions, agreed that there was nothing pressing at that moment.
[50] Where an accused asserts his right to counsel, as the accused did here, the onus of showing that a given delay was reasonable in the circumstances rests with the Crown: Taylor, at para. 24. In the absence of some explanation, I find this delay to be unreasonable.
[51] On behalf of the accused, Mr. Baker submits that the police are also responsible for the 32 minutes it took duty counsel to call back. Mr. Baker’s submission is based on Detective Constable Jackson’s evidence that he usually waits about one hour for duty counsel to call back before placing a second call. Mr. Baker thus characterizes Detective Constable Jackson’s evidence as an “acquiescence” to the 32 minutes it took for duty counsel to call back in this case.
[52] I am unable to accept this argument. Of course, the police have no control over how long it takes duty counsel to call back. As I indicated earlier, Detective Constable Jackson testified that a delay of about a half hour is normal. I do not believe it is unreasonable for the police to wait as long as an hour before placing another call to duty counsel. Even if it could be said that Detective Constable Jackson should have placed a second call to duty counsel earlier, there is no evidence that such a call would have reduced the delay. Based on the evidence I have before me it seems likely that Detective Constable Jackson would simply have had to go through the automated answering service once more and again wait for a call back.
[53] For the foregoing reasons, I find that the accused’s right to retain and instruct counsel without delay was breached only as a result of the failure of the Crown to explain why Detective Constable Jackson did not contact duty counsel for eight or nine minutes after the accused was lodged in the cell.
[54] I turn now to whether the statement obtained by the accused should be excluded under s. 24(2) as a result of that breach.
Should the statement be excluded under s. 24(2)?
[55] Section 24 of the Charter provides:
24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[56] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, the Supreme Court of Canada held that a court is required to consider three factors when asked to exclude evidence under s. 24(2):
(1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected rights of the accused; and (3) society’s interest in the adjudication of the case on its merits.
(1) The Seriousness of the Charter-infringing State Conduct
[57] The court’s task when considering the seriousness of the Charter-infringing conduct is to “situate that conduct on a scale of culpability:” R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 43; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 47. The more serious the conduct, the greater the need for courts to distance themselves from that conduct by excluding evidence linked to it: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 143. In my view, these breaches should be situated at the less culpable end of the scale.
[58] The defence concedes that the breach here falls more towards the inadvertent end of the seriousness scale than the advertent end. There is no evidence that Detective Constable Jackson intentionally sought to delay or deprive the accused of his rights to counsel. Moreover, the delay itself was minimal.
[59] In my view, the breach in this case was not particularly serious. For that reason, it does not weigh much in favour of exclusion.
(2) The Impact of the Breach on the Charter-protected Rights of the Accused
[60] The second line of inquiry under Grant requires the court to identify the interests protected by the rights at issue and to determine the extent to which those interests were undermined by the breach. Like the first line of inquiry, this involves a determination of the degree of seriousness, this time of the consequences of the breach: Grant, at para. 76; Le, at para. 151.
[61] This is not a case in which the accused gave an inculpatory statement while waiting to exercise his right to counsel. Rather, the statement was given after the accused spoke to duty counsel. The impact of the delay, therefore, as it relates to the statement is minimal.
[62] However, Mr. Baker argues that the delay had another, more significant, impact. He submits that, as a result of the delay, the accused missed his chance to be taken to bail court the day he was arrested and, therefore, was required to remain in jail overnight.
[63] I am unable to reach this conclusion on the evidence before me.
[64] The onus of establishing a Charter breach rests upon the accused: R. v. Cobham, 1994 SCC 69, [1994] 3 S.C.R. 360, at p. 372. Such a breach has not been established here. At the time the accused was arrested, the pandemic was still having a significant effect on bail courts. Mr. Baker’s submission is based on the premise that, at the time, detainees were not being taken to bail court after a certain time of the day. However, the accused has failed to establish that he would have made the “cut-off time” were it not for the eight- or nine-minute delay.
[65] Detective Constable Dagg testified during cross-examination that he believed that the bail cut-off time was 10:00 a.m. at the time. If that is the case, then the delay had no impact whatsoever on the accused’s liberty because he was arrested after that time. Certainly, by the time Detective Constable Jackson was interviewing the accused, he already believed that the bail cut-off time had been missed. He told the accused at about 12:53 p.m. that he would have to stay at the police station overnight.
[66] Acting Staff Sergeant Cook was also asked about bail during cross-examination. While he testified that he believed that there was a cut-off time in June 2021, he did not say what it was.
[67] On this evidence, I cannot conclude that the eight-to-nine-minute delay in calling duty counsel resulted in the accused having to remain in custody overnight.
[68] Mr. Baker’s submission that the delay caused his client to remain unnecessarily in custody is tantamount to a submission that the delay in contacting duty counsel resulted in a breach of the accused’s right to be free from arbitrary attention under s. 9 of the Charter, rather than a breach of his right to counsel under s. 10(b). Even if a proper application had been brought under s. 9 of the Charter, I would not have found a breach. The accused was brought before a justice of the peace within 24 hours of his arrest, as required under s. 503 of the Criminal Code: see, for e.g., R. v. Jeyakanthan, 2023 ONSC 5370, at para. 107.
(3) Society’s Interest in the Adjudication of the Case on its Merits
[69] Under the third branch of the Grant analytical framework, the court is required to consider what the effect of excluding the evidence in question would be on the repute of the justice system. That consideration turns on the importance of the evidence to the truth-finding process: Grant, at paras. 79 and 81.
[70] Mr. Baker submits that the accused’s statement is not so fundamental to the prosecution’s case here that the prosecution will fail if it is excluded. Unfortunately, I am not very well positioned to make that assessment.
[71] For some reason, I have not been provided with very much information about the allegations in this case. What I know about it comes from the video statement itself. However, given the age of the complainant at the time of the events and the amount of time that has passed since then, the admission by the accused that he may have touched the complainant in the ways indicated above may be very helpful to the prosecution because it may provide corroboration of the complainant’s evidence.
(4) Balancing the Factors
[72] In R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643 (Ont. C.A.), at paras. 62-63, Doherty J.A. wrote about the task of balancing the Grant factors, as follows:
The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society’s interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case.
In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. [Citations omitted.]
[73] Mr. Baker submits that, based on Grant, when it comes to statements obtained following a Charter breach, exclusion is presumed: Grant, at para. 92. However, as the Supreme Court of Canada made clear in that case, exclusion is not automatic and there is no absolute rule of exclusion of Charter-infringing statements under s. 24(2): Grant, at paras. 91-92.
[74] In this case, for the reasons I have discussed, the first two lines of inquiry do not pull much towards exclusion. The third line of inquiry pulls towards inclusion with somewhat greater force. In the circumstances, it is my view that excluding the statement would do more to harm the reputation of the administration of justice than would admitting it.
CONCLUSION
[75] For the foregoing reasons, the accused’s application under ss. 10(b) and 24(2) of the Charter is dismissed. Although there was a breach, the delay was minor and its impact was even less so. Admitting the statement would not bring the administration of justice into disrepute.
[76] The Crown’s application is allowed. The statement given by the accused on June 10, 2021, was given voluntarily and may be admitted into evidence.
M.G. Ellies J.
Released: March 8, 2024
