Court File and Parties

Court File No.: CR-23-70000010-0000 Date: 2024-06-07 Ontario Superior Court of Justice

Between: His Majesty the King And: Jennifer Sacobie

Counsel: V. Gallegos and D. Spence, for the Crown D. Derstine and J. Heaton, for Ms. Sacobie

Heard: February 8, 16, & 20, 2024

S.A.Q. Akhtar J.

Factual Background and Overview

[1] On 3 October 2021, the accused, Jennifer Sacobie, contacted the police. She reported that someone tried to attack her in her home and that she had stabbed him in the back with a butcher’s knife. She identified her assailant as Adam Nash.

[2] At approximately 4:03 a.m. police officers arrived at Ms Sacobie’s apartment, Unit 203 at 419 Coxwell Avenue in Toronto. The lead officer, Police Constable (PC) Charbonneau was accompanied by PC Mo. Prior to their arrival, both officers received information about the contents of the 911 call from the police radio dispatch system. Neither was wearing a body camera. Another officer, PC Ishmael, did carry such a device and it captured all of the interactions with the accused at her apartment. When they arrived, the police found Mr. Nash alive and lying on the floor in a pool of blood. Medical staff arrived to attend to him and found him to be conscious, breathing, and able to speak. The police also discovered that there were children in the apartment.

[3] PC Charbonneau asked Ms. Sacobie who the man was and she told him that he was "Adam Nash” and that, “he's not even supposed to be around me. He came in here". When PC Charbonneau asked Ms. Sacobie whether or not Mr. Nash had knocked on the apartment door before entering, Ms. Sacobie replied “yes”. However, Ms. Sacobie insisted that she had not let Mr. Nash enter and said that he forced his way into the house. She told police that Mr. Nash had shoved her and "hit the TV".

[4] At this point PC Charbonneau made the following comments,

Okay, Jennifer right now I'm not going to ask any more questions okay? Cause we're gonna have to take you down to the police station to provide a statement. Not like you're under arrest, but I'll detectives are gonna want to speak to you and investigate this I'd rather you say it to our detectives on camera and we’ll figure out what's going on. Is there anybody that can come right over now or where your kids can go to?

[5] Ms. Sacobie indicated that there were people who could come to her apartment and take care of the children.

[6] Just after 4:11 a.m., PC Charbonneau told Ms. Sacobie that the police were going to have to "take you down to the station to provide a statement". At 4:15 a.m., Ms. Sacobie asked PC Charbonneau if she was under arrest and if she could call a lawyer. He responded, "no no no ". PC Charbonneau gave this response because they were at a crime scene, and she could provide a statement about what had happened at the police division. Ms. Sacobie asked if they could take a statement from her at the scene but was told that this was not a viable option. PC Charbonneau testified at the preliminary inquiry that he was treating Ms. Sacobie as a victim but added that she would provide a statement at the police division given the serious nature of events.

[7] At 4:19 a.m., one of the other officers present, Sergeant (Sgt.) Sam made an “X” symbol with his arms to the other officers. Sgt. Sam did this because he was being told by investigating detectives that they wanted the female arrested. The gesture was designed to let other officers know that detectives believed that there were grounds to arrest Ms. Sacobie.

[8] At 4:21 am, Ms. Sacobie again asked whether she could call her lawyer. Although she made this enquiry when standing close to three officers, none of them responded to her enquiry as they were occupied with other responsibilities. None of the officers made any notation in their memo books regarding her queries about contacting a lawyer.

[9] After 4:27 a.m., PC Charbonneau and the accused stood in the hallway outside her apartment. PC Ishmael was still inside the apartment and his body camera appeared to record the remarks but it is difficult to determine exactly what she said. PC Charbonneau could not remember the portion of their interaction and admitted he made no notes of any of references made by Ms. Sacobie about speaking to a lawyer.

[10] It is agreed by both parties Ms. Sacobie was never left alone after police arrived. Furthermore, it is agreed that, on scene, Ms. Sacobie was never advised that she was a suspect, or told she was detained or under arrest. Ms. Sacobie was never given her rights to counsel at this stage or told that officers were contemplating charges against her.

[11] Before she left the apartment, PC Charbonneau and PC Ishmael accompanied Ms. Sacobie to her bedroom so she could dress. She said to them "so I'm the bad guy now?” and PC Charbonneau responded that they “were trying to find out what happened and we’re going to go down to do what’s called a video statement”.

[12] Following this exchange, he whispered something to PC Ismael. Those comments could not accurately be picked up by the recording equipment worn by PC Ismael. It is difficult to hear. He stated they will take her to the station and “they can arrest”, presumably referring to other officers.

[13] Following this conversation, PC Charbonneau escorted Ms. Sacobie out of the building and handed her to PC Mo who transported her to 55 Division. PC Mo arrived at 55 Division at 4:49am. The scout car had an in-car camera recording system which recorded Ms. Sacobie using her mobile phone.

[14] While in the front lobby of the division, Ms. Sacobie requested to take some prescribed medication for her knee pain that was brought with her from her apartment. She took two painkillers while in PC Mo’s custody.

[15] At 5:45 a.m. while in the police interview room, Ms. Sacobie met with DC Caccavale and DC Stalk. Detective Caccavale, who was aware of the circumstances of the stabbing, was advised that Ms. Sacobie was there to provide a statement as a victim. He cautioned her about the criminal consequences of providing a false statement to the police and informed her it was her choice to make a statement but she was not obligated to do so. Ms. Sacobie indicated that she understood. The police implemented a K.G.B. style process for the interview rather than treating Ms. Sacobie as a suspect.

[16] Approximately two minutes into the interview during the caution, PC Stalk and DC Caccavale exited the interview room, and were informed of Mr. Nash’s passing. They returned and continued the interview, not advising Ms. Sacobie of Mr. Nash’s death until approximately three minutes later.

[17] Ms. Sacobie declined to give a statement because "I haven’t talked to my lawyer today”. She asked, “How does that go? I’m confused”. This was the fourth time Ms. Sacobie had mentioned a lawyer to a police officer involved in the investigation. Prior to this point, no officer had informed her of her right to counsel nor taken any steps to implement that right. DC Caccavale testified he was not informed by any other officer that Ms. Sacobie had mentioned speaking to a lawyer prior to her being placed in the interview room with him.

[18] DC Caccavale did not immediately inform Ms. Sacobie of her right to counsel. Rather, he told her she was there because she was “said to be the victim of somebody forcing their way into your unit... and you... defended yourself in protecting your place. That is the premise that I’m working on right now”. He also told her he knew Mr. Nash was prohibited by court order from attending her address and he had been advised that Mr. Nash had forced his way into the apartment before being stabbed. DC Caccavale told Ms. Sacobie that the importance of the statement was to understand “why, how the stabbing took place and what all the circumstances were around it”.

[19] He emphasized that “from our perspective, some explanation is required from somebody”. He repeated that Ms. Sacobie was not forced to say anything and asked her if she wished to give a statement. She replied, “I’ll do it”. DC Caccavale then informed Ms. Sacobie that Mr. Nash had died. Ms. Sacobie became emotional saying “No, really, I can’t please” regarding her making a statement. She added “What do I do, what do I do like... what do I do like?”

[20] DC Caccavale did not inform Ms. Sacobie of the potential criminal jeopardy she was facing. Nor did he provide her with her rights. He said, : “Obviously you’re here to - so that we could have some explanation as to what happened inside of the unit okay? And... you’re not forced to give us any explanation at this time”. In cross- examination, DC Caccavale insisted that Ms. Sacobie’s status as a victim was “plausible” but accepted that she could have been facing charges by the end of his interview. He denied she was in a “precarious position” when the interview started.

[21] Ms. Sacobie repeated that “I don’t know what to do right now... like I wanna go home right now”. DC Caccavale did not inform Ms. Sacobie she was detained and was not free to leave. He did not inform her of her right to counsel. He told her that her children were safe in another unit but her apartment had been sealed. He asked Ms. Sacobie, “Was... what I described accurate before? That... somebody forced their way into your unit?” She responded, “Yeah, earlier”. He asked her if she had marks. She began to respond and he told her “...you don’t have to explain anything”. But that “on the other hand - I mean I’m just speaking from my perspective. If you feel yourself in any jeopardy, whatsoever, you shouldn’t -... we should stop right now, but I’m not holding you suspect for anything... I’m try[ing] to understand what actually happened inside the unit”.

[22] Ms. Sacobie explained that “he [Mr. Nash] came by earlier" and then DC Caccavale left the room temporarily. Ms. Sacobie asked DC Stalk, “Can I call my lawyer, please?” This was her fifth request to speak to a lawyer. DC Stalk said that she could and she provided the name of Michael Strathman. DC Stalk began the process of arranging for her to speak to him.

[23] DC Caccavale re-entered the room and told Ms. Sacobie she would not be released. He clarified that the medical professionals were still providing CPR to Mr. Nash. She was detained however on suspicion of manslaughter.

[24] He provided her formally with her rights to counsel and arrested her for attempted murder and aggravated assault before providing her with her rights a second time. PC Charbonneau returned to take some personal information so that Ms. Sacobie’s family members were informed and her children would be cared for.

[25] After a brief period of time, DC Caccavale returned to the room and informed Ms. Sacobie that Mr. Nash had passed away. She was arrested for manslaughter and re-given her right to counsel. She was told that she was not obligated to say anything in response to the charge and that anything she said could be used in evidence against her. She indicated she understood. She was also told that if any other officer had spoken with her to disregard what had been said. The police told Ms. Sacobie that she did not have to provide a statement and she replied that she understood.

[26] At 6:15 a.m., Ms. Sacobie was handcuffed by PC Charbonneau. She was again given her rights to counsel. Again, she confirmed she understood the allegations she was facing.

[27] At 7:23 am, she was booked into the division. During the booking process, Ms. Sacobie was asked a number of questions, including her pattern of drinking on that night and her psychiatric state. All of this questioning occurred prior to her being given access to counsel.

[28] At 7:35 a.m., PC Charbonneau contacted her lawyer of choice, Michael Strathman. Due to her injured knee, Ms. Sacobie was not immediately taken to the second-floor interview room. Instead, at 7:35 am, she was placed in a small room near the booking hall to await the return call from her counsel. At 7:43 a.m., PC Charbonneau offered to place a call to duty counsel and Ms. Sacobie agreed. Accordingly, PC Charbonneau contacted duty counsel and left a message. Ms. Sacobie was escorted to an interview room on the second floor.

[29] At approximately 8:12 a.m., DC Robert Armstrong photographed Ms. Sacobie’s right hand and collected two swabs from the back and palm of her left hand.

[30] At 8:18 a.m., her lawyer called the station and he and Ms. Sacobie spoke.

[31] At 8:30 a.m., Ms. Sacobie completed her phone call with duty counsel. At 8:41 a.m., Ms. Sacobie received another phone call from a lawyer. That call completed at 8:45 a.m.

[32] At approximately 8:49 a.m., and with the assistance of female officer PC Kovacevic, DC Armstrong seized Ms. Sacobie’s clothing. DC Armstrong was not physically present in the interview room when Ms. Sacobie’s clothing was seized.

[33] Ms. Sacobie requested the use of a washroom at 10:25 a.m. PC Hung facilitated that request. The washroom was private. PC Hung offered Ms. Sacobie food and water after she used the washroom, but she declined the offer.

[34] At 10:38 a.m., Ms. Sacobie’s lawyer called to speak to her. While on the phone with her lawyer, Ms. Sacobie made a request to have two phone numbers written down on a piece of paper to provide to her lawyer. PC Hung wrote down the numbers and provided that information to Detective Akeson, who was the officer in charge. Ms. Sacobie completed her phone call with counsel at 10:44 a.m.

[35] At 10:59 a.m., Ms. Sacobie complained of a shortness of breath and requested her puffer. Since the puffer was not in her property bag, PC Hung made arrangements with scene officers to have that medication brought to her at the station. She was given the puffer at 11.32 a.m.

[36] She was interviewed by Detective Akeson at 5.54 a.m. and provided a video statement which was video recorded.

Positions

[37] Even though there were two statements given to the police, the Crown seeks only to admit Ms. Sacobie’s interview with Detective Akeson.

[38] The Crown submits that notwithstanding some procedural irregularities, the accused’s statement to the police was both voluntary and provided in compliance with the police obligations under s. 10 of the Canadian Charter of Rights and Freedoms. The Crown indicates that it will only use the statement for cross-examination purposes.

[39] The defence opposes admission of the interview arguing it is both involuntary and provided after police violated Ms. Sacobie’s right to counsel. They ask this court to follow the decision of Jones J. of the Ontario Court of Justice, who found the statement to be involuntary at Ms. Sacobie’s preliminary inquiry, on 28 November 2022.

Has the Crown Proven Voluntariness?

Legal Principles

The Test for Voluntariness

[40] When the Crown seeks admission of an accused’s utterance or statement, it has the burden of proving, beyond a reasonable doubt, that it was made voluntarily.

[41] A voluntary statement is one which also complies with an accused’s protected right to silence under the Charter: R. v. Oickle, 2000 SCC 38, [2000] S.C.R. 3, at paras 30, 33; R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para 7. The question for the court is whether the accused’s will was overborne in making the statement: Oickle, at para. 57; R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at paras. 13-15. 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: Oickle, at paras. 32-33; R. v. Beaver, 2022 SCC 54, 50 Alta. L.R. (7th) 1, at para. 46.

[42] In Oickle, the Supreme Court of Canada identified four areas of concern in cases where an accused has made 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. These factors are not an exhaustive checklist but guidance in the overall contextual inquiry: Oickle, at para. 47, 68-71; Spencer, at paras. 11-12; Beaver, at para. 48.

[43] On the latter point, whilst the police have some latitude to apply flexible investigative techniques, any trickery used would result in the exclusion of a confession or statement if it would “shock the community”: Oickle, at paras. 65-67.

[44] The jurisprudence respects the fact that some kind of inducement will often be offered to obtain a confession. However, the inducement “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”: Oickle, at para. 57. A quid pro quo will not render a statement involuntary. The key is whether the strength of the inducement makes the statement involuntary: Spencer, at para. 15.

[45] In Singh, the Supreme Court of Canada made clear that a legitimate means of persuasion is permissible when police question a suspect. The police are not obliged to cease questioning when an accused asserts their right to silence. However, the court also explained that continued questioning in the face of an accused’s declaration of his unwillingness to speak and right to silence might, depending on the circumstances, amount to a denial of a meaningful choice to remain silent: at paras. 47-53.

The Requirement for an Operating Mind

[46] When assessing whether an accused has an operating mind, the Crown must show that they possessed the limited cognitive ability to understand what they were saying and 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, 2022 SCC 35, 49 Alta. L.R. (7th) 78, at para. 8.

[47] The operating mind test “requires proof that the accused was capable of making a meaningful choice to speak to the police and that the choice was not improperly influenced by state action”: Tessier, at para. 51.

[48] The assessment of voluntariness necessitates an analysis “based on the whole context of the case, whether the statements made by an accused were reliable and whether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to a person in authority”: Tessier, at para. 68.

Analysis

[49] In determining this question, I have considered the entire period of time that the police had contact with the accused: from the time they entered her dwelling to the end of the video recorded statement taken by Detective Akeson. Having reviewed the evidence and for the reasons set out below, I cannot agree with Jones J.’s preliminary inquiry ruling that the statement was involuntary.

[50] First, when the police attended her home, there was clearly an indication that Ms. Sacobie was a suspect but at that point police were unsure of the facts. Ms. Sacobie had told the 911 dispatcher that she had stabbed someone and when they arrived police found the used knife in the sink.

[51] On the other hand, Ms. Sacobie insisted that Mr. Nash had broken into her home and the officers knew that he was subject to conditions not to attend the accused’s address.

[52] No formal caution was ever read to Ms. Sacobie. It is noteworthy that when PC Charbonneau spoke to Ms. Sacobie he told her that she was going to the police station and said he was not going to ask her any more questions because he did not want her to “incriminate” herself. The parties also agree that Sgt. Samm made an X with his arms as a signal to other officers. As described, he did this because he had been told that the detective handling the case wanted the accused arrested. It is also clear that the accused was being detained as a suspect in that she was never left alone.

[53] The Crown concedes that Ms. Sacobie was detained and, accordingly, should have been informed of her s. 10 rights.

[54] After her arrival at the station, the accused took two pain pills. The police questioned Ms. Sacobie, provided her with a caution and told her that she could choose whether to make a statement. After police learned of Mr. Nash’s death they returned to the interview room to continue their questioning and told Ms. Sacobie that Mr. Nash had died three minutes later. However, Ms. Sacobie refused to provide a statement because she had not spoken to her lawyer.

[55] Although the lack of a caution is a factor in determining voluntariness it is not determinative: Tessier, at para. 80. Despite the lack of a caution prior to arriving at the station, the police conduct did not rise to the level of overbearing the accused’s will. It is also clear that the accused knew that the police suspected her of some wrongdoing as evidenced by her comments when she said, “So I’m the bad guy now” and her continued reference to speak with a lawyer.

[56] As noted, during her conversations with DC Caccavale, the accused was not informed of her right to counsel but asked if she wanted to provide an explanation. After being told that Mr. Nash had died, the accused said she did not want to give a statement and DC Caccavale told her that she could be charged at some point but she was not “forced to give us an explanation at this time”.

[57] It is clear from the narrative that the accused was provided her right to counsel much later than was permissible. The Crown rightly concedes that the accused’s s. 10 (b) rights were violated at this time. However, once the right was provided, the accused spoke to duty counsel and her own counsel twice before making a formal statement to Detective Akeson.

[58] Whilst I agree with Jones J. that the police failed in their Charter obligations to inform the accused of her right to counsel when they took her to the police station, I depart from his reasoning on the impact of the Charter breach on the question of whether her statement was voluntary.

[59] Judges may come to different conclusions on the question of voluntariness on the same statements: R. v. Duhamel, [1984] 2 S.C.R. 555. In my view, whilst Jones J. properly concluded that the accused’s s. 10 (b) rights had been violated by a failure to be informed of her right to counsel upon detention, I find that he overemphasised the impact of that violation on the question of whether the accused’s statement was voluntary.

[60] The law is that when deciding the question of voluntariness, the focus is on whether the will of the suspect has been overborne by the police. Whilst the failure to inform and provide the accused with the opportunity to speak with counsel may be a factor, it does not override the main focus which is to determine whether the accused’s will had been overborne.

[61] Here, the accused made several utterances at her apartment and gave two statements at the police division. Having reviewed all of the utterances and engagement with the police I find that the Crown has proven beyond a reasonable doubt that the police conduct did not act to overbear her will.

[62] It is evident from her interchanges with the police that Ms. Sacobie knew she was a potential suspect and that she had a right to remain silent. Her requests to speak to a lawyer provide an example of Ms. Sacobie’s state of mind and illustrate that she knew that speaking to police was a matter of choice. By way of example, the evidence demonstrates that Ms. Sacobie was more than happy to give a detailed statement in her apartment and call 911 to place her version of events before the police.

[63] During the course of her interactions with DC Caccavale and DC Charbonneau the accused made clear that she wanted to speak to a lawyer before speaking to the police. There is no suggestion of oppressive tactics used by either officer or of any inducement made. Even though there was a slight delay in informing Ms. Sacobie that Mr. Nash had died, the officers did tell her within a few minutes. An initial illicit interaction might taint a subsequent interview: R. v. M.D., 2012 ONCA 841, 99 C.R. (6th) 131, at para. 56. However, I find there was nothing in this encounter that would act as a contributing factor to the subsequent interview.

[64] Detective Akeson advised Ms. Sacobie that she might be charged with murder and gave her the opportunity to speak with her lawyer a second time. It is worth noting that by the time of the interview, Ms. Sacobie had been cautioned and spoke to duty counsel and her own lawyer on two occasions. Detective Akeson was respectful and behaved in a professional manner, asking Ms. Sacobie if she wanted food and water.

[65] Ms. Sacobie was selective in the interview, controlling the information she provided whilst refusing to answer direct questions about the offence that might incriminate her. I also disagree with Jones J. that the accused was visibly fatigued and unable to fully participate in the interview. The recording shows her listening attentively to Detective Akeson’s questions and taking her time to answer them, holding her head in her hands in a contemplative fashion.

[66] Whilst there is also some suggestion of intoxication, I do not find that this impacted the accused’s operating mind. I also recognise that the accused did lie on the floor of the cell for a short period when Detective Akeson left. This is understandable given that the statement was given in the early hours of the morning. However, I find that the accused’s understandable need to rest did not affect her ability to understand or answer questions or fully communicate with an operating mind.

[67] Whilst there is a complaint that Detective Akeson continued to ask questions even when the accused indicated she did not want to discuss the offence, there is no prohibition on the police in continuing to ask questions even in the face of an accused’s expressed refusal to discuss the matters raised. The number of times an accused asserts their right to not speak is part of the assessment but not determinative: Singh, at para. 53. This evidence cuts both ways because it is clear that the accused knew that there was no obligation to answer questions if she chose not to do so and exercised her right to remain silent on issues that she did not want to discuss.

[68] Accordingly, I find beyond a reasonable doubt that the Crown has proven the statement to be voluntary.

Section 10 of the Charter

The Police Obligations Under Section 10(b)

[69] Section 10 of the Charter reads as follows:

10 Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; and (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

[70] Under s. 10(a), a detainee must be informed promptly of the reasons for detention in “clear and simple language”: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 21. Moreover, s. 10(a) requires the detainee to be told of what they are being investigated for before being given their right to counsel: R. v. Roberts, 2018 ONCA 411, 47 C.R. (7th) 405, at para. 76. When there is more than one reason for a detention all must be disclosed: R. v. Sawatsky (1997), 35 O.R. (3d) 767 (C.A.); R. v. Borden, [1994] 3 S.C.R. 145.

[71] The right to counsel test is contextual and relies on “whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b)”: R. v. Evans, [1991] 1 S.C.R. 869, at p. 887.

[72] The right to counsel and its implementation under s. 10(b) is “to provide a detainee with an opportunity to obtain legal advice relevant to his legal situation”.: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para 24; R. v. Lafrance, 2022 SCC 32, 46 Alta. L.R. (7th) 1, at para. 70.

[73] The interrelation between subsections 10(a) and (b) means that “the purpose of s. 10(a) is also to inform an individual of the extent of his or her jeopardy such that he or she can exercise the right to counsel conferred by s. 10(b) in a meaningful way”: R. v. Nguyen, 2008 ONCA 49, 55 C.R. (6th) 82, at para. 20.

[74] When an accused is in custody, the purpose of s. 10(b) is “to support the detainee’s right to choose whether to cooperate with the police investigation or not, by giving him access to legal advice on the situation [they are] facing”: Sinclair, at para. 32.

[75] However, the police are only obliged to permit a single consultation with counsel unless (1) a new non routine procedure involving the detainee arises ( e.g. , a polygraph or identification line up); (2) a change in jeopardy occurs where the investigation takes a new and more serious turn; or (3) there is some indication that a detainee who has waived his right to counsel has not understood it: Sinclair, at paras. 50-52.

[76] Once a detainee has been informed of their rights under s. 10(b) of the Charter, and that person indicates that they wish to retain counsel, the police have a "duty to hold off questioning or otherwise attempting to elicit evidence from the detainee": R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, at para. 17. See also R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 26; R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-1244; R. v. Prosper, [1994] 3 S.C.R. 236, at pp. 269-279.

[77] “Holding off” also prevents the police from interacting with an accused person in a manner that that triggers a response from the accused, in other words, something that is a "functional equivalent" of an interrogation: R. v. McKenzie (2002), 3 C.R. (6th) 317, at para. 36.

Was There a Fresh Start?

[78] The Crown does not seek to tender any of the accused’s utterances made at her residence or during her first interview with PC Caccavale. It concedes that these utterances were made in violation of the accused’s s. 10(b) Charter rights. It is clear that even after Ms. Sacobie had been detained the police repeatedly questioned her in violation of their duty to “hold off” until she had spoken to counsel.

[79] However, the Crown argues that when Detective Akeson met with the accused, his actions constituted a fresh start in accordance with the principles set out in Beaver.

[80] There, the court held that a “fresh start” could sever the link between evidence obtained in a manner that violated the Charter and subsequent evidence obtained after the police had complied with the Charter obligations. This is a case-specific factual inquiry. In Beaver, at para. 103, the court provided some examples of what might constitute a “fresh start”:

• Whether the police informed the accused of the Charter breach and dispelled its effect with appropriate language
• Whether the police cautioned the accused after the Charter breach but before the impugned evidence was obtained
• Whether the accused had an opportunity to consult counsel between the time of the Charter breach but before the impugned evidence was obtained
• Whether an accused gave informed consent to the taking of the impugned evidence after the Charter breach
• Whether and how different police officers interacted with the accused after the Charter breach but before the obtaining of the impugned evidence; and
• Whether the accused was released from detention after the Charter breach but before the impugned evidence was obtained.

[81] Here, as noted, the Crown does not dispute that Ms. Sacobie was detained when the police asked her to accompany them to the police station. She clearly was. However, Crown counsel argues that a fresh start occurred when DC Caccavale, midway through the interview, read Ms. Sacobie her right to counsel. After that she was read her rights a further two times before being booked in.

[82] Afterwards, as described, the police contacted Ms. Sacobie’s lawyer of choice. When he did not call back, they offered Ms. Sacobie the name of duty counsel. Shortly afterwards, her own lawyer called the station and spoke to Ms. Sacobie. She also subsequently spoke to duty counsel and once more to her own lawyer after Detective Akeson had re-read her the right to counsel. There is no doubt that once she was given her right to counsel, the police acted in accordance with the accused’s Charter rights.

[83] This conduct, says the Crown, was sufficient to sever the link between the Charter breaching conduct and the interview statement given to Detective Akeson.

[84] I might agree with the Crown had the police only failed to provide the right to counsel at Ms. Sacobie’s address before they accompanied her to the station. However, the police interaction with Ms. Sacobie went well beyond the initial engagement. DC Caccavale sought to interview her even though he knew she was a suspect. Ms. Sacobie had requested a lawyer on several occasions prior to being read her rights. She had also indicated, whilst at the station, that she would not give a statement. The fact that she did not provide the statement does alleviate the situation.

[85] It was therefore incumbent, in the circumstances of this case, on one of the officers either DC Caccavale or Detective Akeson to (1) inform the accused of the prior Charter breach, (2) to let her know that anything that had previously transpired should be ignored and (3) that the whole process would be restarted. This course of action did not take place. To be fair to Detective Akeson, he admitted, in cross-examination, that he was unaware that the accused had been detained at her apartment, that she had given prior statements to DC Caccavale or asked to speak to a lawyer before that. Detective Akeson was only told of these facts after the interview.

[86] Accordingly, I find that in this case, despite Detective Akeson’s best intentions there was no fresh start.

Should the Statement Be Excluded?

[87] Having found a s. 10(b) breach, I turn to whether the statement should be admitted under the principles set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, which directs a court to consider:

• The seriousness of the breach
• The impact of the breach on the accused’s Charter protected interests
• Society’s adjudication on the merits of the trial

[88] Here, the breach was serious. The police questioned Ms. Sacobie after she had been detained and denied her right to communicate with counsel. They were obliged to hold off any questioning until that right had been exercised but failed to do so. The Crown quite rightly does not seek to justify their actions prior to Detective Akeson’s involvement. This violation of Ms. Sacobie’s rights was at the more serious end of the spectrum and strongly favours exclusion.

[89] However, the impact of the breach was significantly attenuated by Detective Akeson’s involvement. Ms. Sacobie was given her right to counsel and allowed to speak to duty counsel and her own lawyer on two occasions before being interviewed. Nor was any ostensible self-incriminating evidence obtained through the interview. This limb only weakly favours exclusion.

[90] Finally, the third limb of Grant is somewhat neutral in this case. The Crown has made clear that it will not adduce Ms. Sacobie’s statement as part of its case but hold it back for its potential use as cross-examination material should Ms. Sacobie testify at trial. The statement is not essential to the Crown’s case and contains a great deal of irrelevant material. It only weakly favours admission.

[91] Balancing these factors leads me to conclude that the administration of justice would be brought into disrepute if the statement was admitted. It is accordingly excluded.

[92] I thank both sets of counsel for the efficient manner in which this application proceeded.

S.A.Q. Akhtar J. Released: June 7, 2024