COURT FILE NO.: CR-23-20 DATE: 2024-03-25

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN

HIS MAJESTY THE KING Applicant – and – Tyler Campbell and Nadine Melvaer Respondents

COUNSEL: M. Crystal, for the Crown D. Baker for Tyler Campbell; and L. Galway for Nadine Melvaer.

HEARD: December 4, 5, 6,7, 2023; February 20, 21, 22, 23, 2024

RULING ON VOLUNTARINESS OF STATEMENTS

S.K. Stothart J.

[1] Nadine Melvaer and Tyler Campbell were arrested and charged in relation to the death of Oliver McCarthy. They currently face charges of manslaughter and failure to provide the necessaries of life.

[2] In this application, the Crown seeks a ruling with respect to the voluntariness of two statements provided by Nadine Melvaer to the police on January 15-16, 2020 and March 31, 2021.

[3] The Crown also seeks a ruling as to the voluntariness of a statement provided by Tyler Campbell on January 23, 2020.

Overview

[4] On November 13, 2019, Oliver McCarthy was taken to the North Bay hospital by his mother, Nadine Melvaer, at the direction of their family doctor. At the time there was concern about Oliver having bruises on his body and feeling unwell.

[5] After being examined at the North Bay hospital, Oliver was taken to the Children’s Hospital of Eastern Ontario (“CHEO”) where he underwent further tests. Various theories were discussed about Oliver’s condition including possible child abuse, a possible genetic blood disorder and issues with the quality of water at Oliver’s home.

[6] The Ontario Provincial Police (the “OPP”) and the Children’s Aid Society (the “CAS”) began a joint investigation into the care of Oliver. Between November 18-20, 2019, an agreement was entered into between Oliver’s mother Nadine, Oliver’s grandparents Rhandi Melvaer and Wayne Smith, and the CAS about Oliver’s care. It was agreed that Nadine and Oliver would reside with Rhandi and Wayne at their residence located at 48 Raspberry Lane, East Ferris, while the investigation was ongoing. It was also agreed that Oliver would not have any contact with his biological father Derek McCarthy or with Nadine’s boyfriend, Tyler Campbell while the investigation was ongoing.

[7] Around December 13, 2019, the CAS became aware that the doctors at CHEO had determined that Oliver had sustained two fractured ribs that were felt to be consistent with blunt force trauma or squeezing. It was believed that these fractures occurred sometime before Oliver was taken to the hospital in North Bay. On December 13, 2020, the CAS shared this information with the OPP.

[8] By mid-January 2020, the OPP were waiting for a final report from Dr. Parker from CHEO before proceeding further with their investigation. At the time they felt that Oliver was safe, living with his mother and grandparents in accordance with the terms of the CAS agreement.

[9] On January 15, 2020, police, fire and ambulance were dispatched to attend 20 Sure Strike Road in East Ferris with respect to a deceased child. When police arrived, Oliver was observed lying on the floor in the living room. He was obviously deceased and rigor mortis had set in.

[10] Nadine, Rhandi and Wayne were present at the house. All parties were extremely distraught. All three were driven to the North Bay Ontario Provincial Police detachment where they were interviewed by the police about the circumstances surrounding Oliver’s death.

[11] On January 15 and into January 16, 2020, Nadine was interviewed by Detective Constable Adam Newton. The Crown seeks to prove that this statement was made voluntarily.

[12] On January 23, 2020, Tyler attended the OPP detachment where he was interviewed by Det. Cst. Adam Newton. The Crown seeks to prove this statement to be voluntary.

[13] On March 31, 2021, after a lengthy investigation, Nadine was arrested and charged with criminal offences related to the death of Oliver. Following her arrest, Nadine was interviewed by Sergeant Kelly Woodbury. The Crown seeks to prove this statement to be voluntary.

[14] All three statements were audio/video recorded and were played as part of this voir dire.

[15] With respect to these three statements, I received the evidence of Detective Cst. Adam Newton, Sergeant Kellie Woodbury, retired Sergeant Joanne Matthews, Constable Jonathan Pyykkonen, Constable Charles Wardley and Sgt. Michael Primrose.

[16] The accused did not testify and did not call any witnesses on the voir dire.

The Relevant Legal Principles

Voluntariness

[17] 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: R. v. Oickle, 2000 SCC 38 at paras. 20 and 68; R. v. Beaver, 2022 SCC 54 at para. 45.

[18] The voluntariness rule has at its core, the twin goals of protecting an accused’s rights without unduly limiting society’s need to investigate and solve crimes. The rule is animated by both reliability and fairness concerns, and it operates differently depending on the context: R. v. Oickle, at paras. 32-33; R. v. Singh, 2007 SCC 48 at paras. 1, 21, 27-28, 31 and 34; R. v. Tessier, 2022 SCC 35 at para. 70.

[19] The concept to voluntariness includes a complex of values engaging policy concerns related to not only the reliability of a confession, 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: R. v. Beaver, at para. 47.

[20] In R. v. Oickle, the Supreme Court identified four areas of concern in cases where an accused has provided a statement to the police: (1) where offers or inducements have been made to obtain the statement; (2) where the police have engaged in oppressive conduct; (3) where an accused lacks an operating mind; and (4) where the police have resorted to tricks in order to obtain a statement.

[21] More recently, the Supreme Court of Canada has added the absence or presence of a police caution as a relevant area of concern: R. v. Tessier; at paras. 78-79; R. v. Beaver, at para. 51.

[22] These factors are not a checklist. Ultimately a trial judge must determine, based on the whole context of the case, whether the statements made by an accused were reliable and whether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to a person in authority: R. v. Tessier, at para. 68.

Inducements

[23] Some kind of inducement will often be offered to obtain a confession. An inducement becomes improper when the inducement, standing alone, or in combination with other factors, is strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. The key is whether the inducement makes the statement involuntary: R. v. Oickle, at para. 57.

[24] A legitimate means of persuasion is permissible when the police question a suspect. The police are not obliged to cease questioning when an accused asserts their right to silence. However, the continued questioning in the fact of an accused’s declaration of his/her unwillingness to speak and right to silence might, depending on the circumstances amount to a denial of a meaningful choice to remain silent: R. v. Singh, paras. 47-53.

Oppressive circumstances

[25] Oppressive conduct by the police may result in a statement that is unreliable. As such, the court must examine the circumstances under which a statement is provided to determine whether the conditions were so oppressive that they could have impacted the reliability of the statement.

[26] Examples of oppressive circumstances recognized by the courts include depriving the suspect of food, water, clothing, sleep or medical attention. It includes denying access to counsel and excessively aggressive, intimidating questioning for a prolonged period of time. Further, depending on the circumstances, the use of false evidence in a manner that would lead the suspect to believe their protestations of innocence are futile: R. v. Oickle, at para. 60.

Operating Mind

[27] When assessing whether an accused has an operating mind, the court must be satisfied, beyond a reasonable doubt, that the accused possessed the limited cognitive ability to understand what they were saying and to comprehend that the evidence might be used in criminal proceedings: R. v. Whittle, [1994] 2 S.C.R. 914 at p. 939; R. v. Tessier, at para. 8.

[28] The default assumption is that, absent cognitive impairment, an operating mind exists: R. v. Tessier, at para. 52.

[29] Whether an accused had an operating mind at the time they provided a statement is not a discrete inquiry, divorced from the rest of the confessions rule. It must be considered within the context of all of the circumstances surrounding the taking of the statement: R. v. Oickle at para. 63.

Police trickery

[30] Unlike the previous three headings, the doctrine of police trickery is a distinct inquiry. Its objective is to maintain the integrity of the criminal justice system. This area of inquiry is concerned with the conduct of a person in authority with respect to the taking of a statement: R. v. Oickle at para. 65.

[31] The police are entitled to use tactics, including trickery, in order to investigate crime. What the court should be concerned with is police conduct that is so appalling as to shock the community: R. v. Oickle at para. 67.

Lack of police caution

[32] The confessions rule protects the right to silence at all times during an investigation, whether or not the interviewee is in detention. While a proper caution will not guarantee that a statement given thereafter is voluntary, it does assist the Crown in demonstrating that the accused made a free choice to speak to the authorities. R. v. Tessier, at para. 5.

[33] The weight to given to the absence of a caution falls on a spectrum. On one end of the spectrum are circumstances where the police interview uninvolved witnesses. In those circumstances, the absence of a caution is negligible. At the other end of the spectrum are circumstances where the police interview detained suspects. In those circumstances, given the detainee’s vulnerability and legal jeopardy, fairness commands that a caution be provided: R. v. Tessier, at paras. 78-79.

[34] A suspect is a person who, through information that the police collect through an investigation, viewed objectively, tends to implicate that person in a crime: R. v. Tessier, at para. 59.

[35] In circumstances where the police interview a suspect who is not detained, the failure to provide a caution is not in itself fatal to the admission of the statement. However, the lack of a caution is not without consequence on the type of proof required of the Crown to establish the voluntariness of the statement given: R. v. Tessier, at para. 7.

[36] The absence of a caution for a non-detained suspect constitutes prima facie evidence that they were unfairly denied their choice to speak to the police: R. v. Tessier, at para. 9.

[37] Where the police fail to provide a caution to a non-detained suspect, the Crown must show that the police conduct did not unfairly frustrate the suspect’s ability to understand that what they were saying could be used in evidence, that they were not subject to police trickery and that there were no circumstances that would otherwise cast doubt on voluntariness: R. v. Tessier, at para. 8.

[38] If the Crown cannot prove that the absence of a caution had no impact on the voluntariness, the prima facie evidence of involuntariness raised by the absence of a caution will lead to a conclusion of inadmissibility. The absence of a caution weighs heavily because, where unaddressed, it represents prima facie evidence that the suspect has been unfairly denied of their choice to speak to the police and therefore their statement cannot be considered voluntary: R. v. Tessier, at para. 11.

[39] A police caution informs a suspect of his/her right to silence. It may be provided in plain language. The caution informs the suspect that they are not obliged to say anything unless they wish to do so, but whatever they do say may be given in evidence. R. v. Singh, at para. 31; R. v. Beaver, at para. 59.

The Position of the Parties

[40] Tyler Campbell submits:

a. That on January 23, 2020, he was a non-detained suspect and should have been cautioned and advised of his right to silence. The failure of the police to advise him of his right to silence deprived him of the choice to speak to them; and b. That doubt exists with respect to whether an inducement was made by the police to encourage him to come in and provide a statement in exchange for information about Oliver.

[41] Nadine Melvaer submits:

a. That on January 15-16, 2020 she was a suspect in the death of Oliver and should have been cautioned and advised of her right to silence. The failure of the police to advise her of her right to silence deprived her of the choice to speak to them: b. That on January 15-16, 2020 she was in a hysterical emotional state and did not have an operating mind at the time she spoke to the police; c. That interviewing her immediately following her son’s death amounted to oppressive circumstances; d. That her March 31, 2021 statement should be viewed within the context of all of the events leading up to that statement. These events, when viewed cumulatively, demonstrate that the police did not treat her fairly; e. That she did not have an operating mind during the March 31, 2021 statement; and f. The police used trickery or unfair tactics during the March 31, 2021 statement, by leaving photos of Oliver on the table when leaving the room. This trickery rendered her statement involuntary.

[42] The Crown submits with respect to the Tyler Campbell statement:

a. That Tyler was not a suspect at the time he provided his statement on January 20, 2020, rather he was a person of interest; b. In any event, the police did caution Tyler at the beginning of the statement; and c. That Tyler was aware that it was his choice to speak to the police and the consequences of doing so.

[43] The Crown submits with respect to Nadine Melvaer’s statements:

a. That Nadine was not a suspect during the January 15-16, 2020 interview; b. That the January 15-16, 2020 statement was taken as part of the Coroner’s investigation and Nadine was interviewed as a witness because she had been Oliver’s caregiver prior to his death and could provide information about the circumstances leading up to his death; c. That Nadine had an operating mind during both interviews; d. That Nadine was fully cautioned and afforded a full opportunity to consult with counsel before the March, 2021 interview; e. That the decision to leave photographs of Oliver on the table during the March, 2021 interview was not police trickery or a tactic that would shock the community or otherwise render the statement unreliable or unfair; and f. That the police treated Nadine fairly and with compassion during all of their interactions with her.

The Voir Dire

The statement of Nadine Melvaer on January 15-16, 2020

[44] On January 15, 2020, at approximately 6:30 p.m., the police, ambulance and fire department responded to 20 Sure Strike Road in response to a 911 call for assistance.

Constable Charles Wardley

[45] Constable Charles Wardley testified that he attended at 20 Sure Strike Road at approximately 6:35 p.m. When he arrived, he observed that volunteer fire department members were inside the house. He observed four people performing CPR on a young child who was lying on his back in the living room. The mother of the child, Nadine, was sitting beside the child, crying, wailing and sobbing hysterically while an older man was hugging her and consoling her. Another older woman was pacing around the room.

[46] Wardley went outside and assisted in directing paramedics to the home. When the paramedics began working on the child, he moved the two females and the male into the kitchen. At some point a paramedic went into the kitchen and spoke to the family members.

[47] Wardley was present when Sgt. Primrose told the family that the matter would be a coroner’s case and that they needed to secure the scene. Wardley recalled that Nadine expressed a desire to see Oliver one last time but was told she could not.

[48] Wardley testified that he was present when Sgt. Primrose told the family that they would come to the police station to provide statements. He could not recall if Sgt. Primose told the family that they had a choice about attending the station. He testified that he did not tell them that they had a choice.

[49] Wardley agreed that the family was not given the option of taking their own vehicles, or of attending the police station later. Wardley drove Rhandi to the police station. He recalled observing the family at the front door of the police station, having a cigarette.

Sergeant Michael Primrose

[50] Sgt. Michael Primrose testified that he arrived at 20 Sure Strike at 6:54 p.m. When he arrived, the deceased child had a blanket over him, and the family members were in the kitchen. He was briefed by other officers and told that the child had rigor mortis.

[51] Primrose testified that prior to arriving, he had been made aware that the police had an open investigation involving the family where child abuse was suspected and that the CAS had been involved.

[52] Primrose testified that he spoke to the family in the kitchen. He described Nadine as distraught and crying. Primrose testified that he explained that there was a death investigation and asked if they were willing to come to the police station. The family said yes.

[53] Primrose testified that he did not believe that Nadine asked to see her child. He was not aware of anyone denying her that opportunity.

[54] Primrose testified that Nadine was willing to attend the police station. She retrieved socks and shoes, and went outside and had a cigarette, before leaving for the police station. Nadine and her mother were distraught, crying and appeared to be in shock. They appeared to be having a hard time processing the whole situation. Primrose testified that they offered the family a ride to the police station which was accepted.

[55] Primrose testified that he drove Nadine and Wayne to the police station. Nadine sat in the rear of the police vehicle with her father. It took about 23 minutes to drive to the police station. During this time Primrose did not converse with Nadine or Wayne. He testified that Nadine was still hysterical and was either talking out loud to herself, or to her father, about the situation.

[56] Primrose testified that prior to attending the station, he requested that victim services attend to provide emotional support to the family. When they arrived, there were two members of victim services waiting for the family.

[57] Primrose testified that he brought Nadine to the front entrance of the station. He told her where the washroom was and told her that she could leave the door open with a wedge, in order to have a cigarette.

[58] Primrose testified that during his involvement that day, he did not think about the possibility of a criminal offence. He recalled that there was some discussion at the scene about possible medical issues. He testified that he did not want to assume anything without knowing the cause of death.

Detective Constable Adam Newton

[59] Detective Constable Adam Newton testified that he arrived at the police station at 7:30 p.m. that day. He was briefed on the initial details and was tasked with taking statements from the family members. Newton testified that they were not conducting a criminal investigation. At this time there was no apparent cause of death. Newton testified that they were conducting a coroner’s investigation and were attempting to find out what happened preceding the child’s death in order to assist the coroner.

[60] Newton testified that Nadine wanted to find out what had happened to her son. She firmly believed that there had been some sort of medical event and she was frustrated with the medical system. Newton testified that he could not recall if Nadine was told that she did not have to speak to the police.

[61] Newton testified that Nadine did not appear to be under influence of any substances. He testified that she was extremely upset, and it was a difficult interview given the circumstances. Despite her emotional state, he felt she had a full, sound mind, was aware of the circumstances, and was willing sit down and talk. He agreed that there were times of intense anguish during the interview.

[62] The interview was audio/video taped. It was played at the voir dire and sets out what happened during the interview. The statement began at 9:15 p.m. and ended at 10:37 p.m. Nadine was further interviewed between 12:03 a.m. and 12:10 a.m.

[63] In cross-examination, Newton agreed that, in hindsight, they could have waited to the next day to speak to Nadine rather than interview her within hours of her son’s death. He agreed that this would have been a more trauma informed approach to the situation. Newton testified that they wanted to get as many details as quickly as they could, while the entire family was there. They needed this information to provide to the coroner prior to the post-mortem.

[64] In cross-examination, Newton testified that prior to interviewing Nadine, he was aware that Nadine had been at the home alone with Oliver, contrary to the CAS agreement. He testified that he did not turn his mind to the potential of criminal charges flowing from this.

[65] Newton agreed that Nadine and her parents had not been ruled out as persons of interest in the November investigation. He was aware that during the earlier investigation there were significant conversations about possible medical explanations, such as a disease or disorder. There were also concerns that Oliver’s injuries could have been inflicted. Newton knew that there had been tests done, but they had received nothing conclusive yet. According to Newton, they were waiting for a final report from Dr. Parker from CHEO.

[66] Newton agreed that Nadine may have been a person of interest on January 15, but she was not a suspect. While there was evidence that she had not followed the CAS safety plan, there was no evidence that she had been involved in a criminal offence. Newton testified that if Nadine said something, like I struck him, or I left him alone, this might have turned his mind towards cautioning her.

[67] Newton testified that there was a decision not to caution Nadine and her parents that evening because it was early in the investigation, they did not know the cause of death, there had been medical stuff going on regarding the child, and they really didn’t have anything at that point that would make them a suspect. At that point they simply wanted to speak to anyone who had had access to Oliver prior to his death. Oliver could have asphyxiated during a nap.

[68] Newton testified that although he was aware that Oliver had significant rigor mortis by the time the police arrived, this was not necessarily suspicious. Rigor mortis would speak to the length of time a person was dead, not the cause of death.

[69] Newton testified that he brought Nadine back into the interview room at 12:03 a.m. in order to ask her further questions because when they had spoken to Wayne, he mentioned a visit. This had not come up during the first interview, and Newton wanted to clarify the timeline leading up to Oliver’s death and who had been caring for Oliver.

[70] Newton testified that it was only when they received a preliminary cause of death, on January 17, 2020, that Nadine was elevated to the position of suspect.

Sergeant Joanne Matthews

[71] Retired Sgt. Joanne Matthews testified that she had been involved in the November investigation. During this investigation she became aware that Oliver was found to have had two broken ribs. On January 15, 2020, she had an e-mail exchange with the CAS, and she had advised them the police were going to hold off interviewing of Nadine and Tyler until they received a report from CHEO and had all the facts. They felt Oliver was safe given that CAS safety plan was in place and being followed.

[72] About an hour and a half following this exchange, she received a call advising that Oliver had been found deceased.

[73] Matthews testified that she told the coroner about the prior investigation. She instructed officers that if Nadine admitted abuse or neglect by anyone, that she should be given a caution.

[74] Matthews testified that it is normal practice to interview the persons who were last with a child who is found deceased. She understood that Nadine had found Oliver, and as such she would be interviewed. Matthews testified that there was no possible criminal liability at the time because Nadine was still asserting that there were medical causes for Oliver’s difficulties and without a post-mortem, they did not know the cause of death.

[75] Matthews did not agree that Nadine or Tyler were suspects of child abuse at the time of Oliver’s death. Matthews testified that they did not have an official report from CHEO about Oliver’s injuries. Matthews agreed that she had been advised in December, by the CAS, that Dr. Parker from CHEO reported to them that Oliver had two broken ribs, caused by blunt force trauma or squeezing.

The audio/video recording of the interview

[76] The audio/video recording of the January 15-16, 2020 interview was played as part of the voir dire. I also had the benefit of a transcript which I used as an aid in following the conversation. The transcript was mostly accurate, although there were times where I found some of the words spoken were different than the transcript.

[77] The audio/video recording depicts Nadine and Newton in an interview room. The interview lasts a total of approximately one and a half hours. The room consists of a table and two chairs. Nadine has a bottle of water. The interview commences with Newton introducing himself and expressing his sympathies. Newton advises Nadine that if she needs to take a break, needs more water, or needs to use the washroom to let him know and they will stop and take a break. The tone of Newton’s voice remains calm throughout the interview. His body language is neutral.

[78] Nadine is observed sitting on the chair for the entire interview. At times, particularly when she becomes upset, Nadine curls her legs up to her body or hangs her head down and cries. Nadine’s demeanour changes throughout the interview. At times she is clearly suffering profound grief and has difficulty speaking. At other times she appears very focused and invested in finding out what happened to her son and speaks clearly. Throughout the interview, Nadine appears to understand the questions asked of her and her answers are responsive to the question asked.

The statement of Tyler Campbell on January 23, 2020

[79] The evidence surrounding Tyler Campbell’s statement came primarily from Det. Cst. Newton who was the person who reached out to Tyler to arrange the interview and was the officer who ultimately conducted the interview on January 23, 2020.

Detective Constable Adam Newton

[80] Newton testified that as of January 17, 2020, following the autopsy, the police were conducting a criminal investigation into the death of Oliver. The preliminary opinion with respect to Oliver’s cause of death was that he had sustained blunt force trauma, a perforated bowel, and that there were other multiple injuries of concern. The police were advised that Oliver had suffered blunt force trauma in the weeks to months before his death, and that a more recent trauma had perforated the bowel which then caused his death. They were further advised that the pathologist had noted previous injury to the bowel with evidence of healing, which supported a belief of previous trauma.

[81] Newton testified that following receipt of this information, Nadine and her parents became suspects with respect to the death of Oliver because they had been with Oliver in the days leading up to his death.

[82] Newton testified that on January 23, 2020, the police considered Campbell to be a “person of interest” but did not consider him a “suspect”. This was because the police had no information that Tyler had been with Oliver in the days or weeks leading up to his death. The police knew that a CAS agreement was in place which prevented any contact between Tyler and Oliver, and they had received no information that there had been any non-compliance with this agreement.

[83] Newton testified that despite Tyler not being a “suspect”, the police decided that they would caution Tyler at the beginning of his interview. The police felt that this was prudent given the serious nature of the investigation.

[84] Newton testified that in advance of Campbell’s interview, he reviewed a previous statement that Campbell provided to him during the November, 2019 investigation. In addition, he looked at other incidents where Campbell had been involved in with the police and consulted with colleagues and forensic interviewers.

[85] Newton agreed that during the November interview he believed Tyler was attempting to distance himself from contact with Oliver and that there were discrepancies between Nadine and Tyler’s statements about how much contact Tyler had had with Oliver prior to his hospitalization.

[86] Newton agreed that prior to the January 23, 2020 interview he would have been aware of the “nuance” in the pathologist’s initial findings that the November injuries may have contributed to Oliver’s death.

[87] Newton also agreed that prior to interviewing Tyler, the police had become aware that Nadine had been at the Sure Strike residence with Oliver, contrary to the CAS agreement. They also had received information that contradicted some of what Nadine had told them about when she had found Oliver deceased. Newton agreed that there was some concern about whether they could rely on what Nadine told them. Newton agreed that he also knew that Nadine and Tyler were still involved romantically.

[88] Newton testified that he contacted Campbell on January 22, 2022 via text to arrange for an interview. Newton did not keep a copy of the text messages. His recollection was that the texts would have been rudimentary, along the lines of “hi, how are you” and then arranging a time for the interview. He could not recall the exact verbiage used in the text messages.

[89] In cross-examination, it was suggested that Newton told Tyler that if he came in to talk, Newton would provide him with information about Oliver. It was suggested that Newton used the prospect of obtaining information about Oliver’s death as a carrot to lure Tyler in to speak to the police. Newton testified that his only intention was to obtain a statement and disagreed that he used the prospect of sharing information about Oliver as a carrot.

[90] On January 23, 2020, Tyler and Wayne Smith attended at the front foyer of the police station. The police had expected that Nadine would also be attending for an interview, however Wayne advised that that Nadine was unwell and not able to attend. Newton spoke briefly to the two men, and then Tyler was asked to attend the front interview room which is a few feet away from the front foyer.

[91] Newton testified that the temperature in the room was comfortable. The interview lasted about an hour and a half. Tyler was offered water and asked if he had eaten. Newton testified that Tyler did not appear to be under the influence of any substances.

[92] Newton did not caution Tyler from his issued notebook. Newton testified that this was a choice that he made. Newton agreed that sometimes reading a caution from a notebook can be a barrier to obtaining a statement.

[93] Newton agreed that he did not explicitly tell Tyler that he did not have to talk to him or that anything he said could be used against him. Newton testified that it had been his intention to fully caution Tyler, and that it was an oversight on his part to not use these words.

The audio/video recording of the interview

[94] The audio/video recording of the January 23, 2020 interview was played as part of the voir dire. I also had the benefit of a transcript which I used as an aid in following the conversation. The transcript was mostly accurate, although there were times where I found some of the words spoken were different than the transcript.

[95] The statement lasts approximately an hour and a half. The interview room consist of a table and two chairs. Newton testified that this is the “soft interview” room. At the beginning Newton asks Tyler if he is hungry and that if he needs anything he can see if he can get him something.

[96] The tone of conversation through the interview is calm and respectful. Newton’s body language remains neutral. Tyler appears calm for most of the interview. At some points he becomes emotional when talking about Oliver. Throughout the interview, Tyler appears to understand the questions asked of him and his answers are responsive to the question asked.

[97] At the end of the interview, Tyler stands up and puts his coat on. It is at this point that he tells Newton that he doesn’t want to talk anymore and that he’ll come back the next day to see Newton. Tyler says he has appointments that he needs to go to that day. Newton and Tyler speak briefly after this about Tyler letting the police know if he finds out any further information. Tyler says he will share any information he finds out with the police and that he has no problem taking a polygraph test. Tyler and Newton then walk out of the room.

The statement of Nadine Melvaer on March 31, 2021

[98] On March 30, 2021, the investigative team met and determined that they had reasonable and probable grounds to arrest Nadine. The police attempted to locate Nadine that day but were not successful.

[99] The police were aware that Nadine was expected to attend the Ontario and Addictions Treatment Centre (OATC) to obtain her methadone prescription the next day and a decision was made to arrest her following her appointment.

[100] The officers involved in the arrest of Nadine on March 31, 2021 were Det. Cst. Newton, Sgt. Woodbury, and Cst. Pyykkonen who provided transport to police headquarters.

[101] Newton testified that on March 31, 2021, they observed Wayne’s vehicle park in front of the OATC at 3:33 p.m. Nadine exited and went inside. When she came back outside, they moved over to affect their arrest.

[102] Nadine was advised she was under arrest for manslaughter, criminal negligence causing death and failure to provide the necessaries of life. She was cautioned and provided her rights to counsel. Nadine indicated she understood and expressed that she wished to speak to her counsel, Killian May. Nadine was asked if she wanted to speak to Mr. May at the roadside or if she was okay with waiting until they got to the police station. Nadine advised that she was okay with waiting until they got to the police station.

[103] Nadine was placed into Cst. Pyykonnen’s police vehicle. There is no suggestion that anything significant or concerning occurred during the transport. The transport was audio recorded.

[104] When Nadine arrived at the police station, she was read a caution about whether she had taken any drugs or alcohol. Nadine indicated that she had taken her prescribed medication (methadone). Nadine did not mention taking any other substances.

[105] Nadine spoke to Killian May at the police station. After speaking with Mr. May it was determined that she should speak to another lawyer, Andrew Perrin. When Nadine spoke to Mr. Perrin, he realized that he had a conflict and suggested that Nadine speak to Laurie Galway. The police confirmed with Nadine that she wished to speak Ms. Galway and facilitated a private consultation between the two. In the end, it took about two hours to fully facilitate contact with counsel.

Sergeant Kellie Woodbury

[106] Sgt. Woodbury was tasked with taking a statement from Nadine. Prior to taking a statement, Woodbury suggested that they have a cigarette in the sally port area. The officers testified that there was only casual conversation in the sally port. This conversation was audio recorded.

[107] Woodbury agreed that she knew Nadine was a smoker and that smoking can be something that calms people’s nerves and helps them focus. She allowed Nadine to smoke in order to build a rapport with her.

[108] Woodbury testified that during the course of the interview she brought food and drinks. At times she asked Nadine if she wanted to take a break and have a cigarette and if Nadine indicated she wanted to take a break, they did.

[109] Woodbury testified that the temperature and lighting in the interview room was normal/average.

[110] Newton and Woodbury testified that they did not have any concerns about Nadine’s condition. She did not appear to be under the influence of any substance was able to articulate her thoughts. They described their interactions with Nadine to be positive.

[111] Woodbury acknowledged that at one point during the interview, she left photographs of Oliver on the desk. The purpose of leaving these photographs was to show Oliver during happier times and to show a photo from when Oliver was in the hospital, with bruising around his eye. Another photo was of Tyler.

The audio/video recording of the interview

[112] The audio/video recording of the March 31, 2021 interview was played as part of the voir dire. I also had the benefit of a transcript which I used as an aid in following the conversation. The transcript was mostly accurate, although there were times where I found some of the words spoken were different than the transcript.

[113] The audio/video recording depicts Nadine and Woodbury in an interview room. The interview lasts a total of approximately four and a half hours, between 6:37 p.m. and 11:01 p.m. The room consists of a table and two chairs. Nadine has a bottle of water. Halfway through the interview, food is brought in.

[114] The interview commences with Woodbury confirming that Nadine has spoken to lawyer and that she was satisfied with the advice she received. Nadine is advised that she is under arrest and is not free to go. Woodbury then provides a secondary caution about ensuring that any interaction with another police officer or person in authority does not influence Nadine in making a statement. Woodbury then cautions Nadine that it is her own choice whether she wants to speak to Woodbury and that is of her own free will. Nadine nods and says “yes”.

[115] Woodbury explains that the interview room is audio and video recorded. She explains that Nadine is facing three criminal charges: failure to provide necessaries of life, criminal harassment and manslaughter and asks Nadine if she understands them. Nadine responds, “I didn’t take care of my son”. Woodbury goes on to provide further explanation about the criminal charges.

[116] The tone of Woodbury’s voice remains calm throughout the interview. Her body language remains neutral.

[117] Nadine is observed sitting on the chair for the entire interview. She is calm for most of the interview. There are a few occasions where Nadine becomes upset and begins to cry. Nadine appears to understand the questions asked of her and her answers are responsive to the question asked. At times Nadine asks the officer clarifying questions.

[118] About halfway through the interview, Woodbury leaves the room. Before she leaves the room, she pulls out photographs and leaves them on the table. When Woodbury leaves the room, Nadine looks at the photos. At first Nadine appears calm, but then begins to cry as she looks at the photos. At one point Nadine puts her head down on the table, on top of the photos, and appears to be resting. Later, Nadine sits up and looks at the photos again and kisses some of them.

[119] When Woodbury returns to the room they talk about the photos and about Nadine’s memories of Oliver. At this point Woodbury has brought food into the room. Woodbury asks Nadine if she would like to have a cigarette before they eat, Nadine agrees, and they exit the room to have a cigarette.

[120] The video recording shows Woodbury and Nadine coming back into the room and they talk about Tyler. Nadine is calm for most of the remaining interview, however there are points in time when she cries when talking about Oliver. At the end of the interview, they talk about bail court the next day. Nadine is permitted to keep the remaining food with her as she is brought back to the cells. Nadine asks about having another cigarette however Woodbury advises that she does not have anyone to monitor her.

Other interaction between the police and Nadine Melvaer

[121] Initially the Crown sought to prove the voluntariness of two other statements provided by Nadine to the police. One statement involved the North Bay Police Service and the other involved Det. Cst. Newton and Sgt. Matthews on August 26, 2020. As the voir dire progressed, the Crown abandoned its application in relation to the North Bay Police Service because the necessary officers were not available to testify. The Crown later abandoned its application with respect to the August 26, 2020 statement.

[122] Evidence was called at the voir dire about the August 26, 2020 statement. This statement occurred following Nadine’s apprehension by the North Bay Police Service under the Mental Health Act. Nadine told the arresting officers that she wanted to speak to the OPP about her son’s death. Newton and Matthews attended the North Bay Hospital and spoke to Nadine. Their interaction was audio recorded and the audio recording was played as part of the voir dire.

[123] Having listened to the audio recording, it is clear that Nadine was experiencing a mental health break down of some sort. You can hear Nadine breathing heavily, her voice is raspy, and her speech is extremely rapid. Some of the comments that she makes do not make sense. Other comments appear lucid and rational.

[124] The officers attempted to provide Nadine with a caution and rights to counsel but were constantly interrupted. It was not clear to me that Nadine understood the caution or the recitation of her rights. Near the end of the recording, the officers suggest that perhaps they could continue their conversation another time. I find that at that point the officers recognized that Nadine was not in a good mental state and that it would be better to speak at another time when she was calmer.

[125] I have considered the circumstances of this statement as part of my overall analysis on the issue of voluntariness.

Analysis

Assessment of the evidence

[126] I found that the police witnesses who testified during this voir dire were credible and reliable witnesses. I found that they were all genuinely attempting to provide fair and accurate evidence. The officers referred to their notes when needed and corrected themselves when taken to notes or RMS reports that differed from their initial evidence. They each provided detailed explanations for the steps taken and their evidence made sense when assessed as against the overall circumstances of the investigation.

[127] There were a few areas where the evidence of the police officers was challenged. With respect to Det. Cst. Newton, it was suggested that he provided an inducement to Tyler to come in and speak to him, in the form of an offer to provide information about Oliver’s death.

[128] It was also suggested that Newton deliberately chose to not provide Tyler with the primary caution, as contained in his police issued notebook, in an effort to obtain a statement from him.

[129] With respect to the possibility of an inducement being provided to Tyler in order to have him come in and provide a statement, Newton fairly conceded that he did not keep the text exchange that he had with Tyler and that he could not recall the exact verbiage that he used. Newton testified that his interaction with Tyler was surface level and consisted simply of asking him to come for a statement. He disagreed with the suggestion that he used information about Oliver as a “carrot” to get Tyler to come in and provide a statement. I accept Newton’s evidence that his interaction with Tyler about coming in for a statement consisted of rudimentary text messages. However, Newton’s failure to keep the text messages or otherwise record the content of his conversation with Tyler prior to his interview is a gap in the evidence that I must consider as part of my overall analysis.

[130] With respect to the failure to provide Tyler with a primary caution, I accept Newton’s evidence that this was an oversight on his part. During the video recording of the statement, Newton takes Tyler through several points, including the fact that he is a police officer, the interview is being recorded, that Tyler could be charged with an offence as serious as murder if evidence exists that implicates him in the death of Oliver, that Tyler can speak to a lawyer if he wants, that Tyler is free to leave, and that he does not want Tyler to be influenced by any contact he has had with any other police officer.

[131] I find that the overall tenor at the beginning of the interview demonstrates that Newton as attempting to press upon Tyler the seriousness of the situation. It was not a situation where Newton was trying to create circumstances where Tyler would think he was not in any jeopardy.

[132] Newton testified that there was a police decision to caution Tyler, despite the fact that they did not consider him a suspect at the time. Having made that decision it is unfortunate that Newton did not provide the carefully worded caution that is set out in the standard police notebook. There are many reasons why police officers are provided with standard wording for police cautions. One of the reasons is to ensure that the police provide the necessary information to a suspect so that the suspect can make an informed choice about speaking to the police. The decision to caution a suspect “from memory” is fraught with danger. This practice should be discouraged.

[133] In this case, I find that Newton forgot to tell Tyler that he had the right to remain silent, that he did not have to speak to the police and that anything he said could be used against him. This was a serious error and is something I must consider in my overall analysis as to the voluntariness of the statement.

[134] Both Newton and Woodbury were challenged about the way they interacted with Nadine. It was suggested that the police took advantage of Nadine’s emotional state immediately following the death of her child; took advantage of her emotional state when she was brought to the hospital under the Mental Health Act; and later took advantage of her emotional desire to see photos of Oliver that were contained in her cell phone that had been seized by the police.

[135] With respect to the police interaction immediately following Oliver’s death, I find that the police acted fairly and appropriately. They treated Nadine and her family with care and respect. Looking back, interviewing Nadine immediately after the death of her son may not have been a trauma informed approach and it may be that the police could have waited until the next day. However, I do not find the decision to speak to the family immediately was unfair or oppressive. I find that it is reasonable for the police to want to speak to witnesses close in time to relevant events. This sometimes means that the police have to speak to witnesses who have just experienced traumatic events.

[136] With respect to the police interaction with Nadine in August 2020, when she had been apprehended under the Mental Health Act, I find that the police acted appropriately given the unique circumstances. It must be recalled that Nadine asked the police to come to the hospital and speak to her. It was not a situation where the police became aware that she was in the hospital and attended on their own initiative. When the police arrived, they ensured that their interaction was audio recorded. The police attempted to provide Nadine with a caution and her right to counsel, however Nadine was highly agitated, and this proved to be difficult. After speaking with Nadine, it became apparent that it was not a good time to speak to her and the police offered to continue their conversation at a later time. When Nadine was cleared medically, they drove her home.

[137] Although I find that the police treated Nadine fairly, I did have concerns about the voluntariness of the August 2020 statement. In my view, the Crown properly withdrew its application to prove this statement voluntary. Having listened to the audio recording, I find that Nadine was in a frenzied mental state at this time. She can be heard speaking extremely rapidly and at times she appears to be panting. Her voice is hoarse, and her thoughts are disorganized. In my view, there were serious concerns as to the reliability of this statement and I would not have been satisfied beyond a reasonable doubt that it was voluntary.

[138] With respect to the treatment of Nadine during the March 31, 2021 statement, the entire interaction between the police and Nadine, from the point of arrest until the interview, was recorded. The police waited until Nadine received her prescribed medication before effecting the arrest. In the recordings played as part of the voir dire, the police were calm, polite and respectful. Nadine was fully cautioned, and the police ensured that she received multiple opportunities to consult with counsel before attempting to interview her.

[139] With respect to the decision to leave photographs on the table in the interview room, Woodbury testified that this was a deliberate choice on her part. It was clear to me, and I find as a fact, that Woodbury wanted to trigger an emotional response to the photographs in an effort to elicit more evidence from Nadine during the interview.

[140] Newton, Woodbury and Matthews were challenged on their evidence regarding the police status of Tyler and Nadine as witnesses, persons of interest, and/or suspects in the death of Oliver in January, 2020.

[141] I found their evidence to be reliable and credible and I accept their evidence with respect to their subjective belief. The officers were able to articulate why they did not consider Nadine to be a suspect in relation to Oliver’s death until they received the preliminary findings of the pathologist that indicated Oliver had died from some type of recent internal blunt force trauma. Further, Newton credibly explained that he did not consider Tyler a suspect with respect to Oliver’s death because the police had no information that Tyler had been with Oliver in the days or weeks leading up to his death. Had they had that information, Tyler would have been elevated to the status of suspect.

[142] I was assisted greatly by the fact that the interviews at issue in this voir dire were audio/video taped. This allowed me to make my own observations about what went on during the interview, including the demeanour, actions, and words used by the participants.

The statement of Nadine Melvaer on January 15-16, 2020

[143] I accept, and find as a fact, that on January 15, 2020, the police were responding to a sudden death and were assisting the coroner in his investigation. I find as a fact that there was no basis to believe at that time that a criminal offence had occurred. There was no apparent cause of Oliver’s death, no evidence of injury or trauma, no information that Nadine had done anything that placed Oliver at risk, and no information that Nadine had failed to provide appropriate care to Oliver. Simply being at the Sure Strike residence, instead of the Raspberry Lane address, would not have elevated the matter to a criminal investigation.

[144] I find as a fact that the police interviewed Nadine, Rhandi and Wayne as part of a sudden death investigation involving a child and that it would be expected that the police would want to interview the individuals who had been the child’s caregivers.

[145] I accept that it was only when the police became aware that Oliver may have died from blunt force trauma, that the investigation became a criminal investigation.

Threats, promises, inducements, hope of advantage or police trickery

[146] The evidence establishes, and I am satisfied beyond a reasonable doubt that there were no threats, promises, inducements or hope of advantage provided to Nadine prior to or during her interview on January 15-16, 2020. I am satisfied that there was no police trickery or deception involved in this interview.

Was Nadine a suspect at this time and should she have been cautioned

[147] I am satisfied that at the time of the January 15-16, 2020 interview, Nadine was not a suspect in a criminal investigation into Oliver’s death. At that time there was no apparent cause of death. The only information the police had was that Oliver had been found deceased and that it appeared when they arrived that Oliver had been deceased for some time. There were no signs of injury or other indicators of violence.

[148] Although there had been a prior investigation that included the possibility that Oliver had been physically abused, the CAS had placed Oliver into the care of Nadine, Rhandi and Wayne. The CAS and OPP felt that Oliver was safe in their care.

[149] I do not find significance in the fact that the police drove the family to the police station. On all of the evidence the family had just been through a traumatic experience, and it would be entirely appropriate for the police to offer to drive them to the police station.

[150] The actions of the police demonstrate that they did not consider Nadine, Rhandi or Wayne to be suspects in a criminal investigation. Prior to leaving the residence, the police arranged to have victim service support workers available to support the family when they arrived at the police station. This supports a finding that the police were treating this as a sudden death investigation, and they were attempting to assist the family members through this very difficult situation.

[151] Further, the nature of the interview and the questions asked by Newton are indicative of an intention to obtain background information about Oliver leading up to his death. The tone of the interview is sympathetic and empathetic towards Nadine.

[152] With respect to the spectrum between uninvolved witness and detained suspect, on January 15-16, 2020, I find that Nadine and her family were considered to be the victims of a tragic and sudden death. I would place them somewhere in the middle of the spectrum. They were more than uninvolved bystanders, but they were not suspects of any crime.

[153] In the circumstances, as they existed at that time, I find the lack of caution to be insignificant.

[154] When I review the circumstances leading up to the interview and the contents of the interview, I am satisfied that Nadine made a free choice to speak to the police. There is no suggestion in the evidence that her will was overborn by the conduct of the police. There was no evidence that Nadine or her family expressed any reluctance or concern about accompanying the police to the police station or with assisting them in their investigation.

[155] During the interview itself, Nadine appears to want to provide the police with information about Oliver in an effort to find out why he died. While she is clearly upset, this is because her child had just died. When viewed in the totality of the circumstances, I am satisfied beyond a reasonable doubt that Nadine freely chose to speak to the police and wanted to assist them in their investigation. Further, that she understood that she was being audio/video taped and that the police were going to use the information she provided in their investigation into the circumstances surrounding Oliver’s death.

Were the circumstances oppressive

[156] Having viewed the audio/video statement and considered the evidence of the officers who dealt with Nadine on January 15-16, 2020, it is clear to me that Nadine was in a state of profound grief following the death of her son. This is completely understandable given that Nadine had just experienced the unexpected death of her very young child.

[157] I have turned my mind to whether the circumstances surrounding the interview amounted to oppressive circumstances such that they could have impacted the reliability of Nadine’s statement. It is clear during the interview that there are times where Nadine is overcome with grief. At times she curls into herself and sobs. At other times she is able to compose herself and continue with the interview.

[158] During the interview, Nadine is offered something to drink and is advised that if she needs to take a break that they will take a break. When Nadine wants to have a cigarette, the police accommodate this. At times when Nadine becomes overwhelmed, the officer offers to stops the and asks if she wants to take a break. At one point the officer offers to bring Nadine to speak to her mother for her a bit, which is declined.

[159] While the circumstances under which the statement was taken were clearly difficult, I am satisfied beyond a reasonable doubt that the circumstances were not so oppressive that they impacted the reliability or voluntariness of Nadine’s statement. While the police could have waited and given the family more time to process the events of what had just occurred, there was also a need to obtain information in a timely manner so that the coroner could investigate the sudden death of Oliver.

Did Nadine possess an operating mind

[160] When I consider the evidence in its totality, I am satisfied beyond a reasonable doubt that during the interview Nadine possessed an operating mind, as that term has been defined in R. v. Tessier, R. v. Oickle and R. v. Whittle. Having watched the video recording, it is clear that Nadine possessed the limited cognitive ability to understand what she was saying and that the evidence might be used in the police investigation.

[161] During the interview Nadine is able to explain the history leading up to Oliver’s death, including how he had been feeling the day before, how she had cared for him, and that she had called the doctor’s office the day before to make an appointment. She outlines in detail the history of Oliver going to the hospital in November, the multiple tests that were performed, the potential for a genetic blood disorder, issues with her drinking water, and her frustration with the medical professionals who seemed unable to figure out what was wrong with Oliver.

[162] Nadine appeared to understand the questions asked of her, and her answers were responsive and appropriate. She clearly understood that she was speaking to a police officer and that the police were investigating the death of her son.

Conclusion

[163] Having considered the totality of circumstances surrounding the January 15-16, 2020 interview, I am satisfied beyond a reasonable doubt that Nadine’s statement to the police was voluntary.

The statement of Tyler Campbell on January 23, 2020

Was there an inducement that rendered the statement involuntary

[164] It was suggested to Newton in cross-examination that he held out a “carrot” in order to entice Tyler to come in and provide a statement. This “carrot” was the suggestion that the police would share information about the circumstances of Oliver’s death if Tyler came in to speak to them. Newton did not agree with this suggestion. However, Newton conceded that he did not keep a record of his conversation with Tyler leading up to the interview. This leaves a gap in the evidence that must be addressed. I must ask myself whether this gap in the evidence leaves me with a reasonable doubt as to whether there was an inducement that rendered the statement involuntary.

[165] Not all inducements render a statement involuntary. As stated by the Supreme Court in R. v. Oickle at para. 57:

…courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interest to confess. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne.

[166] During the interview itself, there is no mention of an agreement or a quid pro quo that Tyler would provide a statement in exchange for further information about Oliver. Indeed, the statement begins by Newton explaining that Tyler is free to leave and reminding him of where the exit it is. It is followed by Newton advising Tyler that if information comes to light that he was involved in Oliver’s death, that he could be charged with a crime as serious as murder and offering Tyler the opportunity to speak to a lawyer.

[167] If there had been a discussion between Newton and Tyler that included a suggestion that if Tyler came in for a statement, the police would provide him with further information about Oliver, I am satisfied that this did not amount to an inducement sufficient to raise a reasonable doubt about whether Tyler’s will was overborne and the statement provided by therefore unreliable. For reasons that I will explain later on, it is apparent from the interview, and I find as a fact, that Tyler wished to cooperate with the police and their investigation and was willing to speak to them and assist them.

Was Tyler a suspect at the time of the interview

[168] The issue of whether Tyler was a suspect or not at the time of interview is more difficult. This case demonstrates that it is not always easy to precisely determine where an interviewee falls on the spectrum. This determination is necessarily fact driven and contextual.

[169] The proper application of the confessions rule aspires to strike the right balance between the individual and societal interests at play during police questioning. On the one hand, the law must protect an accused from improper interrogation by the police. On the other hand, the police must be given the latitude they need to ask difficult questions and to investigate and solve crime. R. v. Tessier, at para. 4.

[170] A suspect is a “person who through information that the police collect during an investigation, viewed objectively, tends to implicate that person in a crime”. This is an objective test. It is based on information as opposed to evidence. It is not probable cause, prima facie proof, or a belief that a person committed a crime. The word “suspect” requires a degree of satisfaction, not necessarily amounting to belief, but at least extending beyond speculation as to whether an event has occurred or not: R. v. Tessier, at para. 59; R. v. Morrison at paras. 50-51.

[171] In R. v. D. (A.) at para. 75, Justice Dambrot described the status of suspect as follows:

The trigger for an expectation that the police will give a person being questioned a caution respecting the right to silence must be less than reasonable grounds to believe that the person committed an offence, but must surely be more than speculation, knowledge that other persons suspect that person, or even reliable information that... a person's "background, relationship to the victim or the opportunity to commit the offence may warrant further inquiry”.

[172] At the time of Oliver’s death, the police and CAS were investigating the possibility that Oliver had been physically abused. During this investigation, there was sufficient concern about Tyler and Oliver’s biological father that steps were taken by way of an agreement with the CAS, to ensure they did not have any contact with Oliver pending the completion of the investigation.

[173] By January 17, 2020, the police were aware that the pathologist believed Oliver had suffered an injury to his bowel in the weeks to months before his death, and that a more recent blunt force trauma in the days before his death perforated the bowel which then caused his death.

[174] After receiving this information, the police considered Nadine and her parents to be suspects in Oliver’s death. This was objectively reasonable, given that Oliver had been in their care prior to his death.

[175] Newton testified that Tyler had not become a suspect by this point and was instead a “person of interest”. This was because the police had no direct knowledge that Tyler had had any contact with Oliver in the days and weeks prior to his death. The police were aware that Nadine and Tyler continued to have a relationship and spent time together while the CAS agreement was in place, however had no information that the CAS agreement was not being followed.

[176] It is clear from the contents of the January 23, 2020 interview that the police were exploring the possibility that Tyler had had contact with Oliver in the days before his death. The questioning during the interview included:

a. Asking Tyler if he had any contact with Oliver in the days before his death; b. Asking Tyler if anyone saw him, in the days before Oliver’s death, and asking for their names and contact information; c. Suggesting to Tyler that the police were going to check the baby monitor and cell phones which could tell them a person’s location, and asking if he thought they would find anything; d. Asking Tyler if he was “sure” he was not with Nadine in the week preceding Oliver’s death, and when met with a denial, stating: “Okay, I just want to give you an opportunity now to say anything because we will be able to verify that absolutely”; and e. Asking Tyler if he had ever struck Oliver. When met with a denial, asking: “so, if not you, then who?”.

[177] The nature of the interaction between the police and the individual and its connection to the objectively verifiable facts is relevant to the suspect test. Where the interview is more consistent with an interrogation, a court may find that this is evidence that the police considered the individual to be a suspect. R. v. Tessier, at para. 82.

[178] Pointed questions, particularly when they suggest the culpable involvement of the individual being questioned may indicate that the person is a suspect. However, pointed questions may have other legitimate ends, depending on the circumstances. Questions that provoke anxiety or discomfort or even imply guilt do not necessarily mean a person is a suspect. The police may be simply gauging a person’s reaction to certain lines of questioning: R. v. Tessier, at para. 82.

[179] When one considers the totality of the circumstances known to the police, Tyler was someone who, by way of his relationship to the victim and the victim’s mother, warranted further police inquiry. However, when I consider the totality of circumstances, objectively, I find as a fact that as of January 23, 2020, Tyler was not yet a “suspect”.

[180] However, while I find that Tyler had not yet objectively reached the status of “suspect”, I find that on the spectrum between witness and detained suspect, that Tyler was closer to the status of suspect. As such, I find the presence or absence of caution to be a relevant factor that the court should consider in determining the voluntariness of the statement.

Was Tyler cautioned

[181] The Crown submits that regardless of whether Tyler was a suspect or not, he was cautioned by the police. I disagree.

[182] Tyler was never told by Newton that he had the right to remain silent or that his statement could be used in evidence. In cross-examination, Newton candidly agreed that he did not provide the primary caution and that this was an oversight on his part. I accept that this was an oversight. However, at the end of the day, Tyler was not cautioned with respect to his right to choose to speak to the police and was not informed that what he told the police could be used against him in criminal proceedings.

Has the Crown proven the statement to be voluntary, despite the lack of caution

[183] Having found that Tyler was not explicitly advised of his right to silence and not explicitly advised that what he said could be used in evidence against him, I must go on to assess what impact this has on whether I am satisfied beyond a reasonable doubt that the January 23, 2020 statement was voluntary.

[184] The failure to provide a caution, even to a non-detained suspect, is not in itself fatal to admission. However, the lack of a caution is not without consequence on the type of proof required of the Crown to establish the voluntariness of the statement given: R. v. Tessier, at para. 7.

[185] Where the police fail to provide a caution to a non-detained suspect, the Crown must show that the police conduct did not unfairly frustrate the suspect’s ability to understand that what they were saying could be used in evidence, that they were not subject to police trickery and that there were no circumstances that would otherwise cast doubt on voluntariness. R. v. Tessier, at para. 8.

[186] If the Crown cannot prove that the absence of a caution had no impact on the voluntariness of a non-detained suspect’s statement, the prima facie evidence of involuntariness raised by the absence of a caution will lead to a conclusion of inadmissibility. The absence of a caution weighs heavily because, where unaddressed, it represents prima facie evidence that the non-detained suspect has been unfairly denied of their choice to speak to the police and therefore their statement cannot be considered voluntary: R. v. Tessier, at para. 11.

[187] As stated above, while I find that Tyler was not a “suspect”, in my view the absence of a caution in the circumstances of this case remains a relevant factor in my overall assessment as to voluntariness.

[188] When I review the January 23, 2020 statement, I am satisfied and find as a fact that Tyler was aware that it was his choice to speak to the police that day. This is demonstrated at the beginning of the interview, when Newton confirms with Tyler that the statement is voluntary, the door is not locked, and he is aware of where the exit is located.

[189] It is further demonstrated at the end of the interview, when Tyler gets up, puts on his coat and tells Newton that he has to go. Tyler tells Newton that he doesn’t want to talk anymore, he has appointments he needs to go to, and that he’ll come and see Newton the following day. This clearly demonstrates that Tyler understood that it was his choice to speak to the police and that he was free to end the interview and leave whenever he wanted to.

[190] I am also satisfied and find as a fact that at the time of the interview, Tyler wanted to speak to the police and to cooperate with the investigation. Tyler repeats throughout the interview that he has no problem speaking with the police, that he wants to be open and honest with them, and that he is prepared to share any information that comes to his attention with them.

[191] I am also satisfied and find as a fact that Tyler understood that he was speaking to a police officer, that his interview was being recorded, that the police were conducting a criminal investigation into the death of Oliver, and that if there was any evidence that that Tyler was responsible for Oliver’s death that Tyler could be charged with a criminal offence as serious as murder. Tyler was explicitly advised of all of these things by Newton at the very beginning of the interview.

[192] I have turned my mind to the portion of the interview where Tyler asks if he is being detained or arrested for Oliver’s murder. This occurs immediately after Tyler is advised that he can speak to a lawyer and is offered the opportunity to do so. Tyler tells Newton that he has a lawyer, and then asks, “uh do I need to, am I being arrested or detained”. Newton tells Tyler that he is not being detained and he is not under arrest. Tyler responds, “okay well then I don’t need a lawyer” and then goes on to say, “I’m confident and I’m not like I mean I’ll answer all your questions man, I have no problem with that you know”.

[193] Having reviewed the interaction between Newton and Tyler at this point, I am satisfied that the police did not mislead Tyler or leave him with a false sense of security that he faced no jeopardy. Nor did they dissuade Tyler from calling a lawyer if he chose to do so.

[194] Tyler was not under arrest, and he was not detained. However, he was explicitly advised by Newton that if evidence existed that implicated him in the death of Oliver he could be charged with murder. Tyler was told this, immediately before he was told he had the right to speak to a lawyer anytime and that the police could put him in touch with a lawyer at that moment. This was not a situation where an interviewee was left with a false sense that they were not being investigated by the police and faced no possible jeopardy.

[195] I am satisfied, and find as a fact, that Tyler was aware that he was speaking to a police officer, that what he was saying was being recorded, and that if he said anything that implicated him in Oliver’s death, that his statement could be used against him.

[196] I am also satisfied that there was no police trickery, or other circumstances that would otherwise cast doubt as to the voluntariness of this statement.

Conclusion

[197] When I consider all of the circumstances surrounding the January 23, 2020 statement, I am satisfied beyond a reasonable doubt that it was made voluntarily.

The statement of Nadine Melvaer on March 31, 2021

[198] No issue is taken with respect to Nadine’s arrest on March 31, 2021. She was advised of the reason for her arrest; properly cautioned; advised of her right to counsel; and spoke to counsel of her choice before any attempt was made to interview her.

[199] The entirety of the police interaction with Nadine on March 31, 2021 was either audio recorded (such as the arrest, the transport and time spent in the sally port area), or audio/video recorded (the interview).

Threats, promises, inducements, or hope of advantage

[200] I am satisfied, beyond a reasonable doubt, that there were no threats, promises, inducements or hope of any advantage held out to Nadine in exchange for providing a statement. The circumstances under which the statement was taken were not oppressive. The police waited until after Nadine received her prescribed medication. Nadine was offered food and water during the interview. The police knew that Nadine was a smoker, and she was provided opportunities to smoke. The nature and tone of the interview was calm and respectful.

Did Nadine freely choose to speak to the police

[201] I find that Nadine was clearly aware that she had a choice to speak to the police and she exercised her choice to do so. Early in the interview, Sgt. Woodbury states “It is you Nadine, who makes her own choices and uh, if you want to talk to me it’s your own free will, right?” to which Nadine nods and responds in the affirmative. At no point during the interview does Nadine indicate that she does not want to speak to the police.

Did the police use improper police trickery or tactics

[202] About halfway through the interview, Woodbury leaves the room and leaves behind photographs on the desk. The officer remains out of the room for approximately twelve minutes. During this time, Nadine pulls the photographs close to her and looks at them. She begins to cry and lies her head down on the desk and appears to be resting. At one point Nadine picks up some of the photographs of Oliver and kisses them.

[203] Woodbury testified that she did this on purpose, to evoke an emotional response. She wanted to show Nadine photographs of Oliver during happy times, a photograph when he was in the hospital in November, and a photograph of Tyler.

[204] When I watched Nadine’s reaction to seeing the photographs, it is clear that they evoked an emotional reaction. The photographs of Oliver had been contained on Nadine’s cell phone that had been seized by the police. They would have been photographs that she had not seen for over a year.

[205] I accept and find as a fact that the photographs were left on the table as part of an interview tactic designed to evoke an emotional response by Nadine. It was an effort to appeal to Nadine’s love and affection for her son.

[206] The police are entitled to use tactics and to offer inducements to a suspect in order to obtain a confession. As observed in R. v. Oickle, at para. 57, very few suspects will spontaneously confess to a crime. Inducements become improper only when they, standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborn.

[207] Moral or spiritual inducements will generally not produce involuntary statements. Confessions that result from spiritual exhortations or appeals to conscience and morality are admissible in evidence, whether urged by a person in authority or by someone else: R. v. Oickle at para. 56.

[208] The decision to leave the photographs on the table did not amount to “police trickery”. There was no deception or ruse employed by the police. They simply left genuine, unaltered photographs out for the accused to see. Even if this tactic was police trickery, it would hardly shock the conscience of the community that the police would show an accused photographs of her son, when he was alive, in an effort to appeal to the accused’s moral conscience.

[209] Further, I am satisfied beyond a reasonable doubt that the photographs did not create an oppressive atmosphere that would overbear the accused’s will in making a statement. Having watched Nadine’s reaction, I find that the photographs evoked mixed emotions of grief, sadness, and affection. They did not result in a statement was that involuntary.

Did Nadine have an operating mind

[210] Having watched the March 31, 2021 statement and considered the evidence as a whole, I am satisfied beyond a reasonable doubt that Nadine had an operating mind at the time she provided this statement. There is no evidence that Nadine consumed any substances other than her prescribed methadone. Nadine is calm for most of the interview, with some periods of understandable grief and sadness. Nadine appears to understand the questions asked and her answers are responsive. When she is unsure, she asks clarifying questions. There was no evidence of any cognitive impairment at the time the statement was taken.

Was Nadine treated unfairly by the police

[211] It has been submitted that the court should consider the entire time the police dealt with Nadine over the 14 months following Oliver’s death and find that there was an overall pattern of unfairness that impacts the voluntariness of her statement.

[212] With respect to the police interaction with Nadine on January 15-16, 2020, I find that the police treated Nadine fairly and with compassion. On the day Oliver was found deceased, the police arranged for victim services to attend the police station and provide support for Nadine and her family. While the police could have provided the family more time to process the events that had just occurred, at the same time there is a legitimate societal interest in investigating the sudden death of a young child. I do not find that the police conduct on this date impacted the voluntariness of Nadine’s statement.

[213] On January 23, 2020, the police had scheduled an interview with Nadine. When they were advised by her father that she was too unwell to come into the police station, the police cancelled the interview.

[214] With respect to the statement taken at the hospital in August 2020, the evidence is that the police attended at Nadine’s request. There is nothing unfair about the police attending to speak to a suspect at their request.

[215] When the police attended the hospital, they ensured that they had audio recording devices so that their interaction could be fully and accurately captured. At the very beginning of their interaction, the police began by attempting to caution and advise Nadine of her right to counsel. This was appropriate and fair.

[216] As it became clear that Nadine was not in a good mental state, the police chose to end the interview and suggested that they could speak at another time when Nadine was feeling better. There was nothing unfair about this approach.

[217] Nadine’s March 31, 2020 statement was fully Charter compliant. When problems arose with putting Nadine in contact with a lawyer of her choice, the police held off on any questioning for over two hours, while they ensured that Nadine had a full opportunity to obtain satisfactory legal advice.

[218] When I consider the totality of circumstances surrounding the manner in which the police treated Nadine, I find that they were fair, compassionate and accommodating. There is nothing that causes me to have any concerns that would impact the voluntariness of the statements the Crown wishes to introduce.

Conclusion

[219] I am satisfied, beyond a reasonable doubt, that Nadine’s March 31, 2020 statement was voluntary.

Conclusion

[220] When assessing the voluntariness of a statement, a trial judge must determine, on the whole context of the case, whether the statements made by an accused were reliable and whether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to a person in authority: R. v. Beaver, at 48.

[221] Having considered the totality of circumstances, I am satisfied beyond a reasonable doubt that the statements provided by Nadine Melvaer to the police on January 15-16, 2020 and March 31, 2021 were voluntary and are admissible.

[222] Having considered the totality of circumstances, I am satisfied beyond a reasonable doubt that the statement provided by Tyler Campbell to the police on January 23, 2020, was voluntary and is admissible.

The Honourable Madam Justice S.K. Stothart Released: March 25, 2024