Court File and Parties

COURT FILE NO.: CR-23-27 DATE: 2024/01/15 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – CHRISTINE BIRT Accused

Counsel: Sean Bradley, Counsel for the Crown Scott Reid, Counsel for the Accused

HEARD: October 11 - 13, 16 – 19, 30, 31, November 1 – 3, 2023

G. E. TAYLOR, J.

RULING RE ADMISSIBILITY OF STATEMENT

Introduction

[1] Christine Birt is charged with manslaughter in the death of Shannon MacDougall.

[2] On June 14, 2021, Christine Birt was arrested in Toronto and charged with second degree murder of Shannon MacDougall. She was transported to Brantford where she was interrogated for approximately four and a half hours on June 14 and a further two hours on June 15, 2021.

[3] The Crown seeks a ruling that the statement of Christine Birt was voluntary. If the statement is found to have been made voluntarily, Christine Birt seeks to have the statement excluded from evidence at trial because of violations of her rights pursuant to s. 7 (right to silence) and s. 10(b) (right to counsel) of the Charter of Rights and Freedoms.

The Evidence

[4] On June 14, 2021, officers from the Brantford Police Service attended in Toronto to arrest Christine Birt for second degree murder of Shannon MacDougall. Shortly after 6 p.m., Christine Birt was observed walking on Yonge Street. At 6:08 p.m. she was arrested by Det. Richard Ciotti. Det. Ciotti had an audio recorder which he activated just prior to the arrest.

[5] After placing her under arrest, Det. Ciotti advised Christine Birt that she had the right to retain and instruct counsel without delay. Det. Ciotti also advised her that she was not obliged to say anything but whatever she said could be used in evidence. Christine Birt indicated that she understood her right to silence and stated that she wished to call her lawyer, Scott Reid. While outside the police cruiser, Christine Birt was searched by a female police officer for a weapon. None was found.

[6] The police cruiser was moved from Yonge Street to a quieter location. At 6:23 p.m., Christine Birt was provided with a cellular telephone, which she used to contact her lawyer. While alone in the police cruiser, Christine Birt spoke with her lawyer for approximately 13 minutes. At 6:36 p.m. Christine Birt tapped on the window of the cruiser and told Det. Ciotti that her lawyer wanted to speak to him. Det. Ciotti told Scott Reid that Christine Birt had been arrested for second degree murder.

[7] At 6:42 p.m., Christine Birt and Det. Ciotti left the vicinity of the arrest and returned to Brantford in a police cruiser driven by Det. Shawn Wilson. There was no conversation during the trip to Brantford. They arrived at the Brantford Police Station sally port at 7:39 p.m.

[8] Det. Wilson drove the police cruiser, in which Det. Ciotti was a passenger, to Toronto for the purpose of arresting Christine Birt. Det. Wilson was present when Christine Birt was arrested by Det. Ciotti. Det. Wilson also had a recording device which he activated shortly after Det. Ciotti completed the arrest.

[9] When Christine Birt was arrested, Det. Wilson noticed a backpack at her feet. He did not see her carrying it. He seized the backpack and placed it in the rear of the police cruiser. In the booking area at the police station, Det. Wilson searched the backpack. He found two packages of what he believed to be crystal methamphetamine or fentanyl. He believed the quantity of the drugs would justify a charge of possession for the purpose of trafficking. He was instructed by Det. Ryan Groen, the lead investigator, to secure and weigh the packages. He believed Christine Birt would be cautioned and advised of her rights in relation to the suspected narcotics. He also thought she would be allowed another telephone call to her lawyer.

[10] Several officers testified about their contact and communication with Christine Birt on June 14 and 15, 2021. Det. Sandra Glover testified that she conducted a physical search for weapons immediately after the arrest. She attended at the booking area after returning to Brantford and conducted a more thorough search. She did not find a weapon. Along with Det. Ciotti she escorted Christine Birt from the booking area to the interview room.

[11] Booking Sgts. Jason Barber and Keith Toller had brief interactions with Christine Birt on the evening of June 14 and the morning of June 15, 2021. Sgt. Calvin Eve escorted Christine Birt from an interview room to a holding cell at approximately 10 p.m. on June 14, 2021. Cst. Joseph Camilleri provided a granola bar and drink box to Christine Birt at 7:55 and 11:52 a.m. on June 15, 2021, and he was present when she was taken outside to have a cigarette.

[12] Caley O’Neill is a member of the Forensic Interview Team of the Ontario Provincial Police. He was requested by the Brantford Police Service to conduct the post-arrest interrogation of Christine Birt. In preparation for the interrogation, he reviewed an investigative summary and some wiretap transcripts. He then developed an interview plan. The entirety of the interview was audio and video recorded.

[13] Det. O'Neill began the interview of Christine Birt at approximately 8:00 p.m. Det. O'Neill advised Christine Birt she was under arrest for murder. She requested to speak to her lawyer. Christine Birt said she understood she had the right to remain silent and that anything she did say could be used in court.

[14] Several times during the course of the interview, Christine Birt repeated her request to speak to her lawyer. These requests were ignored. Christine Birt also repeatedly denied that she had killed Shannon MacDougall.

[15] At approximately 9:00 p.m., Christine Birt was provided with a meal from McDonald’s which included french fries and a soft drink. Between 9:34 and 9:41 p.m., the interview was paused while Christine Birt was escorted outside for a cigarette break. The discussion during the cigarette break was audio recorded.

[16] The interview ended at approximately 10:25 p.m. Christine Birt indicated that she was tired. Det. O’Neill asked if she had “had enough for today” to which she responded in the affirmative. He asked if she had any complaints about the way she had been treated and she said she did not. She was then escorted to her cell for the night.

[17] The interrogation resumed at approximately 9:00 a.m. on June 15, 2021. Det. O’Neill confirmed that Christine Birt had spoken to her lawyer the previous day and was satisfied with the advice received (Transcript P 5). She also said she did not want to talk (Transcript P 6). Det. O’Neill advised Christine Birt that he was aware of a quantity of fentanyl being seized at the time of arrest. Christine Birt responded: “It wasn’t my bag” (Transcript P 7). Det. O’Neill did not advise Christine Birt that she was not required to say anything about the drugs or that she had the right to speak to her lawyer about the seizure of the fentanyl. Det. O’Neill indicated that Christine Birt’s denial of the bag being hers was just like her denial that a bag with a knife with her DNA and Shannon MacDougall’s DNA on it was hers. Christine Birt initially responded that: “It’s just a piece of paper with like photocopies.” Christine Birt then repeated that she had nothing to say and that she wanted to speak to her lawyer (Transcript P 8).

[18] At approximately 9:25 a.m., Det. O'Neill said to Christine Birt that she is under arrest for second degree murder and that life is a very long time if she is convicted (Transcript P 12). Just prior to making that statement, Det. O'Neill said that Christine Birt had been given an opportunity to explain what had happened, but she had failed to do so. Det. O'Neill suggested that there had been a fight about drugs during which Shannon MacDougall had been stabbed.

[19] At approximately 9:35 a.m., Det. O’Neill said that there are only two options: either Christine Birt meant to kill Shannon MacDougall, or she made a split-second bad decision and things got out of control. Christine Birt responded: “It’s not that simple” (Transcript P 18). Christine Birt then proceeded to explain that she and Shannon MacDougall got into an argument about drugs in exchange for a place to live. She said she and Shannon MacDougall began fighting. When Det. O’Neill asked for details about the fight, Christine Birt asked for a cigarette (Transcript P 26). Upon returning to the interview room after having a cigarette, Christine Birt explained that Shannon MacDougall came at her with a weapon, and she responded by stabbing Shannon MacDougall with a knife from the kitchen (Transcript P 36, 37). After stabbing Shannon MacDougall, she ran from the house (Transcript P 39). Det. O’Neill asked Christine Birt why she decided to tell him about what happened to Shannon MacDougall. Her answer was: “…her family deserves to know” (Transcript P 64).

Analysis

[20] This voir dire/application was thoroughly presented and argued over several days. Many issues were addressed. After much thought and careful consideration, I have decided to rule the statement inadmissible on the basis that the Crown has failed to meet its burden of satisfying me to the standard of proof beyond a reasonable doubt that the statement was made voluntarily. I have come to this conclusion on a very narrow basis which I will explain. I will then deal briefly with the other arguments that were presented which I do not find necessary to address in detail in light of the conclusion I have reached.

[21] The leading case on the voluntariness of statements is the decision of the Supreme Court of Canada in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3. The onus is on the Crown to prove beyond a reasonable doubt that the statement was made voluntarily. A confession will be found to be involuntary and therefore inadmissible if it was obtained as a result of threats or promises made or held out by a person in authority, was the result of the lack of an operating mind, was obtained in an atmosphere of oppression created by the police or by police trickery that undermines an accused’s right to silence. In deciding whether there is a reasonable doubt as to a confession’s voluntariness, a court should undertake a contextual analysis and strive to understand the circumstances surrounding the confession in order to determine whether there is a reasonable doubt regarding voluntariness (paragraphs 68, 69 and 71).

[22] Firstly, I do not accept the Crown’s submission that there were two or three separate statements. In my opinion, there was one statement which extended over two days. At the end of the interview on June 14, Det. O'Neill said he was going to return the next day in case Christine Birt had any questions. He also suggested the interview was being terminated because Christine Birt had “had enough for today”. In a monologue on June 15, before Christine Birt entered the interview room, he referred to the interview continuing. I also do not accept that Christine Birt’s conversation with Det. Groen on June 15 was a separate and distinct statement. It was part of the statement which Det. O’Neill had sought to obtain beginning the previous day.

[23] I find that Christine Birt was treated fairly and courteously from the time she was arrested until the conclusion of the interview on June 15. Det. O'Neill’s interview technique was firm but not overly aggressive. I do not believe that the basis on which I have found the statement inadmissible was an intentional trick on the part of Det. O'Neill.

[24] I do find that, during the interview on June 15, Det. O'Neill offered an inducement to Christine Birt to confess to stabbing Shannon MacDougall. One of Det. O'Neill’s main themes during the interview was that Christine Birt had the opportunity to explain why she had stabbed Shannon MacDougall. Shortly after the beginning of the interview on June 15, at about 9:25 a.m., after saying that he was giving Christine Birt an opportunity to explain the circumstances surrounding the stabbing of Shannon MacDougall, and suggesting that it might have happened during the course of a fight, Det. O'Neill pointed out that Christine Birt was charged with second degree murder. He suggested that life was “a very long time if convicted”.

[25] At approximately 9:35 a.m., Det. O'Neill told Christine Birt she had two options: 1) she meant to kill Shannon MacDougall; or, 2) she made a split-second bad decision and things got out of her control. At that point Christine Birt explained that she and Shannon MacDougall had argued about drugs in return for a place to stay.

[26] I am left with a reasonable doubt as to whether Christine Birt changed her position that she had not killed Shannon MacDougall because she was fearful that if she did not admit to the killing, she would be convicted of second-degree murder and be faced with serving a sentence of life in prison. This would be an improper inducement. As explained in Oickle, the burden on the Crown is to prove beyond a reasonable doubt that the statement was voluntary. I am not satisfied that the Crown has proven beyond a reasonable doubt that what Det. O'Neill said to Christine Birt about spending the remainder of her life in prison if she did not provide him with an explanation, could not reasonably have been interpreted as an inducement for the purpose of obtaining a more lenient sentence.

[27] I am satisfied beyond a reasonable doubt that Christine Birt fully understood the situation she was facing. Immediately following her arrest she contacted her lawyer. She explained to Det. O'Neill that she understood she did not have to say anything to him. No threats were made. The atmosphere during the interview is not oppressive. The police did not resort to trickery.

[28] I find that there was no breach of Christine Birt’s right to silence as guaranteed by the Charter. In my view, she did not seek to exercise the right to remain silent. From the beginning of the interview, she consistently said she was not responsible for the death of Shannon MacDougall. When pressed however, she resorted saying she had nothing to say and/or that she wanted to speak to her lawyer. Selectively answering some questions during the course of a police interview and declining to answer other questions is not, in my view, the exercise of the right to silence.

[29] Christine Birt submits that as a result of the finding of the fentanyl in the bag found at her feet when she was arrested entitled her to be re-informed of her right to counsel and given another opportunity to speak to her lawyer. In R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, the Supreme Court stated at paragraph 51:

The detainee is advised upon detention of the reasons for the detention: s. 10(a). The s. 10(b) advice and opportunity to consult counsel follows this. The advice given will be tailored to the situation as the detainee and his lawyer then understand it. If the investigation takes a new and more serious turn as events unfold, that advice may no longer be adequate to the actual situation, or jeopardy, the detainee faces. In order to fulfill the purpose of s. 10(b), the detainee must be given a further opportunity to consult with counsel and obtain advice on the new situation.

[30] In my view the police were not required to suspend the interrogation of Christine Birt upon finding narcotics in a bag which she denied was hers until she had been given a second opportunity to speak to her lawyer. The passage from Sinclair quoted above refers to the investigation taking a “new and more serious turn”. The finding of fentanyl in an amount consistent with the intent to traffic, although a serious offence, is not as serious as a charge of second-degree murder. The only time the finding of the fentanyl was mentioned to Christine Birt was at the beginning of the continuation of the interview on June 15. No attempt was made to illicit a statement about the drugs and no evidence about the possession of the fentanyl was obtained from Christine Birt.

[31] If I am wrong, and the failure to advise Christine Birt that she had the right to contact her lawyer for advice about the finding of the fentanyl, was a breach of her Charter right to retain and instruct counsel, I would not exclude the statement about the stabbing of Shannon MacDougall. The right to counsel is an important right but in this case Christine Birt was not interrogated about the fentanyl in the backpack. There was little impact of the breach to Christine Birt. To exclude evidence relevant to a charge of murder because a person was found in possession of drugs and was not told she could contact a lawyer about a possible charge of possession of a narcotic for the purpose of trafficking would not further society’s interest in the adjudication of the murder charge on its merits.

Conclusion

[32] For these reasons, the statement made by Christine Birt to Det. O'Neill and Det Groen on June 14 and 15, 2021 is ruled inadmissible as evidence at the trial of the charge of manslaughter of Shannon MacDougall on March 11, 2020.

G.E. Taylor J. Released: January 15, 2024