R v. Eden, 2024 ONSC 3294

COURT FILE NO.: CR-23-29 DATE: 2024-12-23

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

His Majesty The King M. Sokolski, for the Provincial Crown Applicant

• and -

Rebecca Eden S. Reid, counsel for the Respondent Respondent

HEARD: April 8, 9, 10, 15 & 17, 2024

REASONS FOR DECISION

SKARICA, J. (Orally)

[1] This is my ruling in the matter of R. v. Rebecca Eden, regarding several statements she made to the police.

OVERVIEW

[2] The police were investigating a homicide that occurred at the deceased's residence in Fort Erie on June 9th, 2021. As part of the investigation, the police interviewed the deceased's girlfriend. She was initially a person of interest, potentially a suspect, that is Rebecca Eden. [3] The police conducted several interviews of the accused Rebecca Eden. Two interviews occurred on June 10th, 2021, shortly after the murder, wherein Rebecca Eden was a person of interest but not a suspect. A subsequent interview occurred in March 2022, after Rebecca Eden was arrested for first degree murder.

ISSUES

[4] 1. Has the Crown proved the voluntariness of Rebecca Eden's statement voluntary beyond a reasonable doubt? [5] 2. Should the statement be excluded pursuant to Charter violations and pursuant to s. 24(2) of the Charter?

FACTS

[6] On June 9th (and I am going to go into great detail, given that this is a first degree murder charge.): On June 9th, 2021, at about 10:55 p.m., two adult males attended 3815 Mathewson Avenue in Fort Erie. This is the residence of Leonard Aquilina and his son Neil Aquilina. [7] The two adult males assaulted Leonard Aquilina. Leonard Aquilina suffered serious injuries, including two large stab wounds. He was pronounced deceased by paramedics at 11:20 p.m. Rebecca Eden was the girlfriend of the deceased. She was not at the residence at 3815 Mathewson but was located after the murder nearby at 313 Ridgeway, the residence of one Rikki Anger. [8] I will now go through the evidence of several officers.

The Evidence of Detective Maguire

[9] Detective Maguire attended the homicide scene at around one a.m. He received information from Sarah Giroux, the sister of Rebecca Eden and the mother of Kaylynn Riel, that her 14 year old daughter Kaylynn had been at the Mathewson address. [10] The police engaged in an emergency search of calls made by Kaylynn on her cell phone. Kaylynn was located at 313 Ridgeway Road, which is a couple of blocks away from 3815 Mathewson. Detective Maguire approached 313 Ridgeway and overheard two females talking. He overheard one or both say, "He's not dead, he's not dead." [11] Rikki Anger answered the door. Detective Maguire identified himself as a police officer. He asked if Kaylynn was inside and was told Kaylynn was inside. He asked for Kaylynn to come out as he wished to talk to her. He did a brief interview with Kaylynn in front of his cruiser so that it could be recorded. As Kaylynn was only 14 years old, Maguire instructed her to sit with Officer Pauls and that eventually Family and Children Services would look after her. [12] Detective Maguire then told Rebecca Eden he wished to talk to her. Rebecca Eden exited the home at 2:47 a.m. Rebecca Eden didn't wish to go to the police station for an interview. However, she did agree to be interviewed in the front seat of Detective Maguire's cruiser. The interview appears at Tabs 3 and 4 of Exhibit l(a). [13] At Tab 3, page 2 of 8, Detective Maguire indicates that Rebecca Eden was not under arrest and could leave at any time. At page 6 of 8, Detective Maguire indicates Rebecca may be charged with murder. She is cautioned and given her rights to counsel. She indicates at that time that she doesn't need to speak to a lawyer. [14] In cross-examination, Detective Maguire testified he did that - that is the rights to counsel and cautions because at that time Rebecca was "only a person of interest" but could possibly become a suspect at a later time. [15] Constable Pauls and Scobie escorted Kaylynn and Rebecca separately to the police station for a video interview. Constable Pauls and Scobie were instructed not to speak to Kaylynn and Rebecca. [16] Kaylynn was interviewed again on video at 4:41 a.m. until 4:57 a.m. Her cell phone was taken from her so that a forensic copy could be taken. From 5:08 am. To 5:55 a.m., Rebecca Eden was interviewed on video at the police station. That video appears at Tab 5 of Exhibit l(a). [17] At page 4 of 48, Rebecca Eden is told that she may be charged with murder. She is given rights to counsel and the standard police caution at pages 5 through 7 of 48. Detective Maguire then replays the audiotaped interview of Rebecca Eden taken a couple of hours earlier in the police cruiser. That occurs at page 7 of 48, until page 36 of 48. Rebecca at page 36 agrees that her audio statement is substantially correct. [18] At page 41 of 48 to page 47 of 48, Detective Maguire indicates he has been instructed to take her phone and asks for her password, which she provides. Detective Maguire testified he was requested to obtain Rebecca's phone and password. He was further instructed, if necessary, to arrest the accused (that's Rebecca) and seize her phone on an exigency basis. [19] In cross-examination, Detective Maguire testified he was advised by his sergeant that Rebecca was not at the address of the homicide scene and that Rebecca was "wanted". Regarding Rebecca Eden, Detective Maguire testified in cross-examination that after he initially spoke with Kaylynn, he told Rebecca that he wanted to speak to her. She told him she didn't want to leave and do a video interview at the police station. He asked her if she would talk in the police car on audio and she said yes. It was a standard practice to tell her, "I want to speak to you and you don't have to speak with me." That standard practice statement does not appear in his notes. There is nothing in his notes regarding the conversation to get Rebecca back to the station. Detective Maguire explained he made no note, as nothing remarkable occurred. [20] Detective Dowd asked him to bring her in and was given directions on how to do it. Detective Maguire agreed that 20 minutes earlier, Rebecca Eden agreed to do an audio statement in the car, but didn't want to go to the station. However, Detective Maguire testified that after the audio interview, he again asked her to come to the station and this time she was agreeable. He asked her if she wanted a ride. Detective Dowd had told him to bring Rebecca and Kaylynn in separately. Detective Maguire agreed that he could have recorded these conversations on his cell phone but he didn't do so. He didn't tell Rebecca that she didn't have to go back to the station and didn't have to talk to the police. [21] Regarding taking Kaylynn's cell phone and password, Detective Maguire never told Kaylynn she doesn't need to give up her cell phone or password. He didn't ask her if she wanted to speak to a lawyer and didn't tell her he was going to seize her phone regardless. [22] Detective Maguire testified he didn't take any steps to ensure that Kaylynn knew she didn't have to give over her phone. Detective Maguire's definition of informed consent is that people have to understand what outcomes could be regarding charges. Detective Maguire intended to return the phone after getting the pass codes, as pass codes would expedite the extraction process and thereby expedite the return of Kaylynn’s phone. [23] It was suggested that informed consent meant Kaylynn, in this instance, would understand she didn't have to give up her pass code. Detective Maguire testified he didn't know the proper legal definition of informed consent. His instructions were to seize the phones (that's Kaylynn's and Rebecca's phones) and obtain pass codes if possible. [24] Detective Maguire has, in the past, told people they don't have to provide their pass code. He didn't do that with Kaylynn. He has not told people that they could talk to a lawyer before providing a pass code. He did, however, allow Kaylynn to speak to a responsible adult. [25] At the outset of the interview he did not indicate he would be asking for the phone and pass code. If Kaylynn had refused to hand over her phone, he would have arrested her for obstruct police. Detective Maguire agreed that she was not free to leave until she provided the phone. His definition of detention is what a person knows about whether they can leave or not. [26] Regarding Rebecca Eden and her statement at Tab 5 of Exhibit l(a), at page 3, she was referred to the caution in her audio recording. She was told at pages 4 through 5 she could be charged with murder. Detective Maguire testified that Rebecca was a person of interest at that time, but there was a potential of her later becoming a suspect. She was given the standard caution and her rights to counsel at page 5. She indicated she understood. She indicated she understood her right to counsel and had nothing to hide. However, when asked if she wanted to speak to counsel she never said yes or no to the question of wishing to contact counsel. [27] The officer testified he has never had anyone say they have nothing to hide and then want to talk to a lawyer. Earlier, in the audio statement at page 6 of 8, at Tab 3, she said she didn't want to speak to a lawyer. That was also replayed in the video statement at page 13 of Tab 5, when the audio statement was being replayed. [28] Detective Maguire stated his plan before the video started was to seize Rebecca's phone. Rebecca would not be allowed to leave the police station until he seized her phone. It was suggested that was a detention. Detective Maguire did not have a warrant for either Kaylynn or Rebecca's phones. At page 44 of Tab 5, Detective Maguire told Rebecca they were going to download all relevant information. His understanding was that the entire phone would be downloaded and after obtaining a warrant, the police would look at the relevant time period and calls and messages that occurred at that time. [29] Detective Maguire agreed that he had no evidence of commission of the offence that may be on the phone. This was to be a download of the phone in exigent circumstances, according to Detective Maguire. At page 43 of Tab 5 he asked for Rebecca's password. He took no steps to obtain an informed consent for the password. Police software can enter a phone with or without a password.

Evidence of Constable Pauls

[30] Dealing next with Constable Pauls. Detective Pauls escorted Rebecca to the station on June 10th, at 3:38 a.m., as per Detective Maguire's instructions. Rebecca Eden sat in the front seat and was not restrained. No important conversation occurred but Constable Pauls couldn't recall any details of any conversations if that occurred. All he knew is that she, Rebecca Eden, was going to speak to the detectives. He was not told Rebecca Eden was a suspect. If she was, he would have transported her in the back of his police cruiser. [31] In cross-examination, Officer Pauls indicated when Kaylynn came out someone sat her at the back of the cruiser with the door open. He was to keep her there until detectives spoke to her. He doesn't recall telling Kaylynn she didn't have to stay at the cruiser and she didn't have to speak to the police. If she tried to leave, he would have notified someone she was leaving. [32] Officer Pauls could not recall who asked him to transport Rebecca Eden to the police station. That was done at 3:38 a.m. He was not told that she was arrested or detained. He was not told that she was a person of interest or a possible witness. He was only told to transport her. She was not under arrest or detention. He never told her she didn't have to talk to the police officers and didn't tell her she didn't have to go to the police station. Detective Maguire didn't give him any information regarding Rebecca Eden.

Evidence of Kelly Gerrie

[33] Kelly Gerrie was the next witness. Kelly Gerrie is a Niagara Police Service officer. On March 10th, 2022, she was advised that police were planning to arrest Rebecca Eden for the homicide that occurred at Mathewson on June 9th, 2021. That arrest was to take place at 442 Cambridge West. [34] Sergeant Fletcher and Dowd were doing the arresting. Constable Gerrie's role was to audio tape the arrest. At 4:53 p.m., the homeowner arrived at 442 Cambridge West. The Homeowner phoned Rebecca Eden. Rebecca Eden arrived at 442 Cambridge at 5:03 p.m. The arrest events are recorded at Tab 6, Exhibit l(c). [35] Rebecca Eden was arrested for first degree murder. She was cautioned and given her rights to counsel and stated she understood (See pages 5 and 11). At page 5, Rebecca Eden stated she wished to speak to a lawyer. Rebecca Eden was transported to the station. From 6:18 to 6:37 p.m. Rebecca Eden spoke to duty counsel. Officer Gerrie noticed alcohol on Eden's breath but Officer Gerrie expressed the opinion that Rebecca was not intoxicated.

Evidence of Detective Sergeant Dowd

[36] Detective Sergeant Dowd was the next witness. On June 9th, 2021 at 11 p.m. Detective Sergeant Dowd received a call from Detective Fletcher regarding a stabbing. At 11:22 p.m. he got a call that the victim was now deceased. Detective Sergeant Dowd started paging other members of the team. He had no personal involvement with Rebecca Eden until her arrest on March 10th, 2022, as outlined in Exhibit 1 (c). [37] In cross-examination Detective Sergeant Dowd testified he was directing people on June 9th and 10th and giving instructions until Detective Atkinson could come in and take over. The police were concerned about Kaylynn's safety. Pursuant to Kaylynn's phone pinging a nearby address, Officer Maguire was tasked with finding Kaylynn. Officer Maguire was instructed to find Kaylynn and get her to a place of safety. [38] Shortly after 2:37 a.m., but before 3:12 a.m., Detective Maguire reported that he is on-scene and Kaylynn is there. Sometime between 2:38 a.m. and 2:47 a.m., Detective Maguire advises he spoke to Kaylynn and advised that he is going to interview Rebecca Eden, who was also on-scene. [39] The police were aware that Eden had an argument earlier with the deceased at their home, but she was not at the home at the time of the stabbing. Accordingly the police wanted a statement from Rebecca Eden. It was suggested that Officer Maguire was able to get an audio statement from Rebecca from 2:45 a.m. to 3:09 a.m. Detective Maguire called Detective Sergeant Dowd shortly after at 3:12 a.m., and Maguire advised Rebecca did not want to do a video statement but did do an audio statement. Normally a video statement is taken at the police station. Detective Sergeant Dowd did not instruct Maguire to take a video statement from Rebecca. He didn't ask Detective Maguire to get Rebecca to change her mind and do a video statement. [40] At 3:29 a.m., Detective Maguire advised he is arranging rides for Kaylynn and for Rebecca Eden, who now said she will come in for a video, that is 3:29 a.m. Detective Maguire did this of his own accord. Detective Sergeant Dowd is at Number 5 District and Detective Atkinson shows up at 4:08 a.m. There was a team meeting at 4:43 a.m. Detective Maguire was not there as he started Kaylynn's interview at 4:41 a.m. [41] Detective Maguire has a note that at 4:25 a.m. he met with Inspector Leigh, Detective Dowd, Detective Sergeant Magistrale and Detective Atkinson. Maguire noted that someone directed him not to caution Kaylynn but to seize her cell phone. Sergeant Detective Dowd testified he was there but he doesn't recall that direction. Detective Sergeant Dowd had no discussions with Maguire about seizures of cell phones, but was aware it happened. He thinks Detective Atkinson provided those instructions sometime between 4:25 and 4:41 a.m. He believes that occurred at 4:33 a.m. Maguire was directed to speak to Kaylynn but not to caution her, but was to take her phone.

Evidence of Detective Fletcher

[42] Detective Michael Fletcher was the next witness. His first contact with Rebecca Eden was assisting in her arrest and to facilitate Rebecca Eden's request to call counsel. He called the duty counsel at the station. Rebecca Eden spoke to duty counsel I. Dejesus at 6:15 p.m. to 6:37 p.m. He also called counsel Tom Jamieson but got no answer.

Evidence of Detective Jordan Atkinson

[43] On June 9th, 2021, Detective Atkinson was at the police college, but he was paged at 12:45 a.m. on June 10th, 2021, to assist in a murder investigation. At 4 a.m. he attended Number 5 District and met with Staff Sergeant Magistrale and Detective Dowd and was assigned as the lead investigator. He was provided details that the victim Leonard Aquilina was stabbed at 3815 Mathewson. The victim lived there with his son Neil and his girlfriend Rebecca Eden. Kaylynn Riel was also associated with that address. [44] Earlier in the evening, the victim had an argument with Rebecca Eden. Two suspects had forced their way into the residence with weapons and stabbed the victim. Neil did not want to give a statement. There were concerns regarding 14 year old Kaylynn, who was a witness to the earlier incident between the victim and Rebecca Eden. The police located Kaylynn at 313 Ridgeway. Rebecca Eden was also there. Detective Atkinson knew that Detective Maguire had Rebecca Eden and Kaylynn transported to the station for statements. [45] Detective Atkinson gave directions to Detective Maguire to get a pure version statement from Kaylynn. Kaylynn was not to be cautioned, as she was not a suspect. Detective Atkinson directed that Kaylynn's cell phone be seized due to exigent circumstances. It was not practicable to get her phone seized pursuant to a warrant. Messages can be deleted and he didn't want that to happen. [46] Similar directions were given for Rebecca Eden, however, she was to be cautioned regarding possible murder charges. Her phone was to be seized due to exigent circumstances. Her statement was to be voluntary and she could leave at any time. However, if Rebecca refused to provide her phone, she was to be detained and the phone seized, and then she was to be released unconditionally. [47] On June 13 and 14, Detective Atkinson spoke to Detective Maguire. Detective Maguire was to tell Rebecca Eden that charges had been laid, but extractions were not done yet and the phone couldn't be returned. Detective Atkinson directed Rebecca Eden be arrested on March 10th for first degree murder. [48] On March 11th at 7:35 a.m., at page 3 of the audio at Tab 7, Rebecca confirmed that she spoke to duty counsel DeJesus but she also wanted to speak to Tom Jamieson. Detective Atkinson made repeated attempts to contact Jamieson. At 9:39 a.m., Rebecca spoke to another lawyer that she wanted to speak to and that's Michael Peterson. That call was completed at 9:48 a.m. and then Rebecca was able to speak to Tom Jamieson, and that call lasted until 9:51 a.m. [49] The police were then satisfied that Rebecca Eden had spoken to her lawyer of choice. Rebecca was arrested on March 10th but not interviewed until 10:24 a.m. on March 11th. There were two reasons for the delay. One, a second person was in custody on March 10th and two, there was concern regarding alcohol on Rebecca's breath on March 10th; although there were no concerns regarding her ability to understand what was occurring. [50] Regarding the audio and video statements made upon the accused's arrest for first degree murder on March 11th, 2022, transcribed at Tab 8 of the Crown's materials, I make the following findings:

1. The police very carefully outlined her rights to counsel, caution and secondary caution to her. It is clear she understood as she had spoken to duty counsel and two lawyers of her choice as previously outlined. (See pages 1 through 17 of Tab 8)
2. At pages 13 through 14 of Tab 8, Rebecca Eden confirms that she has not been threatened or promised anything by anyone.
3. The bulk of the interview consists of basically (a) the police outlining the evidence that they have accumulated against Rebecca Eden and (b) with minor exceptions Rebecca Eden repeatedly indicates that pursuant to the advice of counsel, she does not want to make a statement at that time, and/or wishes to make a statement at a later time. At page 56 of Tab 8 Detective Atkinson indicates: If you don't want to talk about what happened that, that is your prerogative and you made it quite clear that that's your right, but this is your chance.
4. That statement by the detective was made after Rebecca had stated, 79 times, words to the effect that she did not wish to make a statement to the police at that time, pursuant to the advice of counsel.
5. However, Detective Atkinson continued the interview and by its end at page 67 of Tab 8, Rebecca Eden has told the officer, by my calculation, 106 times, that pursuant to the advice of counsel she did not wish to make a statement at that time and/or wished to make a statement at a later time and/or wished counsel present before making a statement.
6. There is discussion relating to Rebecca's previous statements made on June 10th, as follows: (a) Regarding the seizure of the phone, Rebecca says that the police didn't seize it but she gave it to them voluntarily. Sergeant Atkinson disagrees somewhat, stating that her phone was seized and it was going to be taken, whether she gave it or not, and it was a good thing they did as she was deleting stuff off her phone. (See Tab 8 at pages 23, 33, 61 and 62). (b) Rebecca also states she voluntarily denied a lawyer the first time as she had nothing to hide. (See Tab 8 at pages 61 and 62) (c) There is a reference to Rebecca's previous two interviews of June 10th, wherein she provided two names of people not involved in the homicide. There is a reference to the audio statement taken by Detective Maguire in his car and the later video statement taken at the station. (See Tab 8 at pages 34 and 35) [51] On June 10th at 12:11 p.m., Andrew Blais was arrested for second degree murder. On June 11th, the next day, Tristan Skelton was arrested for murder. In their interviews, the accused stated they were at 331 Ridgeway before and after the murder. Blais and Shelton's statements implicated Rebecca Eden in the murder, i.e. she directed Blais and Skelton to beat Len up. [52] At a team meeting on June 12th at 10:07 a.m., the Saturday after the murder, it was determined then that Rebecca Eden was a suspect, but there was not enough evidence to charge her with murder at that time. The police held Rebecca's phone but did not do any searches until a search warrant issued about a week after the seizure. Detective Atkinson was extensively cross-examined by defence counsel. I am not going to go over all the cross-examination but refer to some highlights.

[53] At the time that Detective Atkinson instructed Detective Maguire to seize Rebecca Eden's phone, that was approximately 4:35 a.m. on June 10th, Detective Atkinson was aware of the following:

1. Leonard Aquilina was stabbed at his residence multiple times and was deceased. There were two male suspects.
2. Leonard live at 3815 Mathewson with his son and Rebecca Eden. Kaylynn Riel, 14 years old, was also there and associated with Rebecca.
3. Leonard and Rebecca had an argument earlier, before the stabbing, which might be related.
4. One or more of the assailants said to Leonard, "This is what happens when you hit girls."
5. Rebecca Eden had told Detective Maguire she knew nothing. Rebecca only knew something when phones were blowing up or people were phoning her. At this point, Eden was not a formal suspect, she was a person of interest. There were exigent circumstances to get her phone. He knew there was a period of time between the Eden/Leonard dispute and the murder. He did not know if there was any information on the phone. Eden was cautioned as there was an alleged domestic assault before the murder and the comment, "This is what happens when you hit girls" was a possible motive. Eden was cautioned out of an abundance of caution.

[54] His notes, that is Detective Atkinson, indicate he instructed Detective Maguire to get a voluntary statement and to tell her she could leave at any time. However, if she refused to hand over the phone, she was to be detained and the phone taken, and she was to be charged with obstruct police and then released unconditionally. [55] Kaylynn and Rebecca were not free to leave until the phones were seized. Detective Atkinson agreed that if a civilian thinks, "I can leave" at the same time the police officer knows that person is not free to leave, that person is detained. [56] It is to be noted that the Tab 5 video statement on June 10th at pages 4 through 6, Rebecca is told she may be charged with murder, is cautioned, given rights to counsel and given a secondary caution. She confirms that she was at the police station voluntarily and has not been threatened or given any promises. The previous audio statement is then played. Contrary to Detective Atkinson's instructions, Detective Maguire never tells Rebecca she is free to leave any time before starting that video interview. [57] Detective Atkinson confirmed he had no warrant for these phones and absent a warrant he could not compel a person to comply with the police request. Detective Atkinson didn't tell Detective Maguire to get an informed consent. There was no consent to get the phones. [58] Regarding the taking of the March 11th statement, Rebecca voiced her right to silence in three different ways.

1. She was following her lawyers' advice not to provide a statement.
2. She would give a statement at a later time.
3. If she had her lawyer present she would give a statement.

[59] Defence counsel counted 108 times she stated she did not want to give a statement. I counted 106 times. Detective Atkinson felt that it was reasonable to continue his questioning even after 106 to 108 times of her stating she wished to exercise her right to silence. [60] Detective Atkinson testified he ended the interview because it was serving no investigation purpose. Detective Atkinson was cross-examined extensively on his using various aspects of the "Reid Technique.” The Reid technique is discussed by Justice Schreck at R. v. C.T., 2015 ONCJ 299 at paragraphs 18 through 22, and R. v. Thaher, 2016 ONCJ 113 at paragraphs 28 through 31.

[61] I think it is useful, given all that evidence, to do a chronology of events on June 9th and 10th of 2021: January 9th, 2021 at 10:55 p.m., two males attend 3815 Mathewson, Fort Erie, with weapons and assault and stab Leonard Aquilina. 10:57 a call is made to the police regarding the stabbing. 11 p.m., Detective Sergeant Dowd receives a call from Detective Fletcher regarding a stabbing. 11:20 p.m., Detective Sergeant Dowd gets a call that the stabbing victim is now deceased. Sergeant Dowd starts to assemble a team of officers and directs people until Detective Atkinson takes over.

[62] Now moving to June 10th. 12:30 a.m. Detective Maguire is briefed. He is advised that Rebecca Eden is outstanding and was not at the homicide address and she is wanted. 1:10 to 1:16 a.m., Kaylynn's phone is pinging from a Ridgeway address. 1:30 a.m., Detective Maguire attends the homicide scene. The police are concerned about the whereabouts of Kaylynn, a 14 year old female who had been at the Mathewson address. Detective Maguire is tasked with finding Kaylynn. 2:37 a.m.-ish, Detective Maguire approaches 313 Ridgeway. He overhears two females saying "He's not dead, he's not dead". 2:37, Detective Maguire knocks on the door. Rikki Anger answers. Detective Maguire asks if Kaylynn is inside. She is and Maguire asks her to come out as he wants to talk to her. Rebecca Eden is also in the house. 2:37 to 2:47 a.m., Detective Maguire reports to Detective Sergeant Dowd that he has located Kaylynn and Rebecca. Detective Maguire reports he is going to interview Kaylynn and Rebecca Eden. Kaylynn is interviewed on audio. Kaylynn is instructed to sit with Officer Pauls and that eventually FACS would look after her. 2:38 a.m., Detective Maguire interviews Kaylynn. The interview takes place in the front seat of the cruiser. It is audiotaped and lasts seven to nine minutes. 2:47 a.m., Detective Maguire tells Rebecca Eden he wishes to talk to her. She exits the home at 2:47 a.m. Rebecca advises she doesn't wish to go to the police station for an interview. She agrees to be interviewed in the front seat of Detective Maguire's cruiser. 2:51 a.m., Rebecca enters the police vehicle. She opens the front passenger door and goes inside. She is not told she doesn't have to speak to the police. 2:54 a.m. to 3:09 a.m., Detective Maguire interviews Rebecca on audio. That interview is transcribed and appears at Tabs 3 and 4 of Exhibit l(a). Salient features include:

1. Detective Maguire tells Rebecca she is not under arrest. She is free to leave at any time. (See page 2 of Tab 3)

2. Detective Maguire tells Rebecca Eden she may be charged with murder. (See page 6 of Tab 3)

3. Detective Maguire tells Rebecca she is not obliged to say anything unless she wishes and whatever she says may be given in evidence. She states she understands. (See page 6 of Tab 3)

4. She is advised of her right to contact a lawyer. She states, "Why do I - no, cuz I don't need to". (See page 6 of page 3) Detective Maguire testified Rebecca was being treated as a person of interest. She could be a witness and possibly potentially involved, but she was not a suspect at that time. 3:09 a.m., the audio interview of Rebecca ends. (See Tab 4 at page 13). Rebecca is asked to "Just hang out there for a couple of minutes, all right". (See Tab 4 at page 13). Detective Maguire advises, "Let me make a couple of calls, okay? All right, thank you Becky". Becky says, "Thank you" and the interview is over. (See Tab 4 of page 13) 3:09 to 3:10 a.m. Rebecca Eden gets out of the vehicle on her own. 3:12 a.m., Maguire calls Dowd. Maguire tells Dowd that Rebecca doesn't want a video interview but he has done an audio interview. 3:12 a.m. to 3:29 a.m., Maguire testifies that Dowd told him to bring Kaylynn and Rebecca to the station separately, if possibly. Maguire asks Rebecca again is she was agreeable to come to the station and if she needed a ride. He arranges for Rebecca to get a ride with Constable Pauls. Maguire doesn't advise Rebecca that she is not obligated to talk to the police or go to the police station. 3:29 a.m., Dowd testifies he didn't ask Maguire to get Rebecca to change her mind for a video interview. Maguire indicates he is bringing Kaylynn and Rebecca in and arranging videos. Maguire did that of his own accord. 3:38 a.m., Constable Pauls transports Rebecca Eden to the Number 5 Police Station. He receives directions from a detective to do that. The transport took 15 minutes. Eden sat in the front passenger seat and was not restrained in any way. 3:52 a.m., Detective Maguire was directed to interview both Kaylynn and Rebecca separately. The plan was to get them to adopt their audios. Detective Magistrale gave those instructions. 3:53 a.m., Rebecca Eden arrives at the police station. The car door was unlocked and she got out. She was not told she was under arrest or detained. Constable Pauls was told she's not under arrest or detained. Constable Pauls never told Rebecca she didn't have to go the police station or that she didn't have to talk to the police. 4 a.m. to 4:08 a.m., Detective Atkinson arrives at Number 5 District and takes over the investigation. He meets with Staff Sergeant Magistrale and Detective Dowd and is briefed as to the status of the investigation. 4:25 a.m., Maguire has a note that he meets with Inspector Leigh, Detective Dowd, Detective Staff Sergeant Magistrale. Maguire testified he was instructed to seize Kaylynn's phone and password. He was likely told to seize Rebecca's phone at 4:25 a.m. as well. 4:33 a.m., Dowd testifies that he thinks Atkinson provided the instructions to Maguire about the anticipated video interviews. Detective Atkinson testified he did give those directions and he gave directions to Maguire as follows:

5. Re Kaylynn - conduct a pure version statement but no caution as Kaylynn was not a suspect. An adult was to be present. Her cell phone was to be seized due to exigent circumstances.

6. Regarding Rebecca Eden, a pure version statement was to be taken. Rebecca was to give a voluntary statement and her cell phone was to be seized. If she refused, Rebecca was to be detained and the phone seized and Rebecca was to be released unconditionally. Rebecca was to be told she was free to leave any time. That was the instruction given to Maguire by Detective Atkinson. 4:41 a.m., Maguire interviews Kaylynn and obtained her phone and password. Maguire testified that at the meeting beginning at 4:25 a.m. he was told by the team that Kaylynn was not to be cautioned but he was told to seize her cell phone. He was likely also told by the team to seize Rebecca Eden's cell phone. 5:08 a.m. to 5:50 a.m., Detective Maguire conducts a video interview of Rebecca Eden. (See Transcript Exhibit l(a) Tab 5). Detective Maguire testified that Rebecca was a person of interest and there was a potential of her being a suspect. Accordingly, Detective Maguire took the following steps:

7. He advised Rebecca she may be charged with murder. (See Tab 5 pages 4 through 5)

8. He cautioned her. She said she understood. (See Tab 5 page 5)

9. He asked her if she wanted to speak to a lawyer. She did not say yes or no. Instead she responded: "I have nothing to uh, uh right". (See Tab 5 page 5)

10. She was provided a secondary caution and it was explained to her. (See Tab 5 pages 5 through 7)

11. Contrary to Detective Atkinson's instruction, Detective Maguire did not tell Rebecca she was free to leave at any time. Detective Maguire testified that before the Eden video starts, his plan is to take her cell phone. Detective Maguire testified that Rebecca would not be able to leave the police station until he had seized her phone. He had no warrant to seize either Kaylynn's or Rebecca's cell phone. Near the end of the interview he tells Rebecca he has Kaylynn's phone. The police technicians are going to download all the relevant information and get a judge's okay to look at it and then she'll get her phone back. (See Exhibit 1(a) Tab 5 at page 44) Detective Maguire testified that the police in fact download all the information on the phone and then get a warrant to determine what they can look at. Detective Maguire asks for Rebecca's passcode and she provided it. (See page 43 of Tab 5) Getting the passcode expedites getting the download and return of the phone. Detective Maguire testified he took no steps to obtain an informed consent for the passcode.

[63] After those interviews were completed on June 10th at 12:11 p.m., Andrew Blais is arrested for second degree murder and is interviewed by the police. The next day, June 11th, Tristan Skelton is arrested for murder and is interviewed by the police. June 12th, 10:07 a.m., based on the Blais/Shelton interviews, Rebecca Eden then becomes a suspect.

THE LAW

Voluntariness

[64] The leading case regarding voluntariness is R. v. Oickle, 2000 SCC 38, [2000] 147 CCC (3d) 321, a decision of the Supreme Court of Canada. The Court indicated that a court is to consider whether there have been any threats or promises, i.e. are there any quid pro quos; also to consider if there is any impression whether the accused had an operating mind, and if there were any appalling police trickery tactics. (See paragraphs 47 through 67 of Oickle) [65] Justice Iacobucci concludes in Oickle as follows, at paragraphs 68, 69 and 70:

68. While the foregoing might suggest that the confessions rule involves a panoply of different considerations and tests, in reality the basic idea is quite simple. First of all, because of the criminal justice system's overriding concern not to convict the innocent, a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. Both the traditional, narrow Ibrahim rule and the oppression doctrine recognize this danger. If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it. Between these two extremes, oppressive conditions and inducements can operate together to exclude confessions. Trial judges must be alert to the entire circumstances surrounding a confession in making this decision.

69. The doctrines of oppression and inducements are primarily concerned with reliability. However, as the operating mind doctrine and Lamer J.'s concurrence in Rothman, supra, both demonstrate, the confessions rule also extends to protect a broader conception of voluntariness "that focuses on the protection of the accused's rights and fairness in the criminal process": Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused's right to silence, this Court's jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible.

[66] Paragraph 71, I am not going to read all of it but just the crucial part:

71. Again, I would also like to emphasize that the analysis under the confessions rule must be a contextual one. In the past, courts have excluded confessions made as a result of relatively minor inducements. At the same time, the law ignored intolerable police conduct if it did not give rise to an "inducement" as it was understood by the narrow Ibrahim formulation. Both results are incorrect. Instead, a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession's voluntariness, taking into account all the aspects of the rule discussed above.

[67] Confirming those decisions are a number of Supreme Court of Canada decisions subsequently, such as R. v. Singh, 2007 SCC 48, at paragraphs 43 through 46; R. v. Beaver, 2022 SCC 54 at paragraph 57; and, R. v. Tessier, 2022 SCC 35 at paragraph 68.

Detention

[68] In R. v. Suberu, 2009 SCC 33, the Supreme Court of Canada indicated the following at paragraphs 21 through 23, and 28 through 31.

[21] In Grant, we adopted a purposive approach to the definition of "detention" and held that a "detention" for the purposes of the Charter refers to a suspension of an individual's liberty interest by virtue of a significant physical or psychological restraint at the hands of the state. The recognition that detention can manifest in both physical and psychological form is consistent with our acceptance that police actions short of holding an individual behind bars or in handcuffs can be coercive enough to engage the rights protected by ss. 9 and 10 of the Charter.

[22] While a detention is clearly indicated by the existence of physical restraint or a legal obligation to comply with a police demand, a detention can also be grounded when police conduct would cause a reasonable person to conclude that he or she no longer had the freedom to choose whether or not to cooperate with the police. As discussed more fully in Grant, this is an objective determination, made in light of the circumstances of an encounter as a whole.

[23] However, this latter understanding of detention does not mean that every interaction with the police will amount to a detention for the purposes of the Charter, even when a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with the police. This Court's conclusion in Mann that there was an "investigative detention" does not mean that a detention is necessarily grounded the moment the police engage an individual for investigative purposes. Indeed, Iacobucci J., writing for the majority, explained as follows:

"Detention" has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to "detain", within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be "detained" in the sense of "delayed", or "kept waiting". But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint. In this case, the trial judge concluded that the appellant was detained by the police when they searched him. We have not been urged to revisit that conclusion and, in the circumstances, I would decline to do so.

[69] Paragraph 28:

[28] As discussed more fully in Grant, in a situation where the police believe a crime has recently been committed, the police may engage in preliminary questioning of bystanders without giving rise to a detention under ss. 9 and 10 of the Charter. Despite a police request for information or assistance, a bystander is under no legal obligation to comply. This legal proposition must inform the perspective of the reasonable person in the circumstances of the person being questioned. The onus is on the applicant to show that in the circumstances he or she was effectively deprived of his or her liberty of choice. The test is an objective one and the failure of the applicant to testify as to his or her perceptions of the encounter is not fatal to the application. However, the applicant's contention that the police by their conduct effected a significant deprivation of his or her liberty must find support in the evidence.

[29] The line between general questioning and focused interrogation amounting to detention may be difficult to draw in particular cases. It is the task of the trial judge on a Charter application to assess the circumstances and determine whether the line between general questioning and detention has been crossed. While the trial judge in this case did not have the benefit of the test refined in Grant, his findings on the facts, supported by the evidence, lead to the view that a reasonable person in the circumstances would have concluded that the initial encounter was preliminary investigative questioning falling short of detention.

[30] The trial judge characterized the factual situation at issue as "an exploratory investigation in which Roughley was fully justified and duly [sic] bound to pursue a cursory questioning of Suberu". He went on to observe that "the introductory and preliminary questions were merely to determine if there was any involvement by this person before him". As the trial judge put it: "One must ask a number of preliminary questions to determine how to proceed thereafter. Until that information was obtained as to a possible criminal offence and who the party was, no detention or arrest or rights to caution, in my view, were required."

[31] The trial judge's finding that the initial part of the encounter was of a preliminary or exploratory nature on its face does not support the contention that Mr. Suberu was under detention within the meaning of the Charter at this point. It suggests rather that Constable Roughley's conduct indicated that he was engaged in a general inquiry and had not yet zeroed in on the individual as someone whose movements must be controlled. Looking at the matter through the lens of the detention analysis proposed in Grant, the trial judge's conclusion that the circumstances did not trigger the right to counsel cannot be said to be in error. There was no right to counsel because there was no detention.

[70] In R. v. Grant, 2009 SCC 32, the Supreme Court of Canada at paragraph 44, defined detention as follows:

[44] In summary, we conclude as follows:

1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors: (a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation. (b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter. (c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[71] In circumstances not exactly on all fours with the current fact situation, regarding the audio statements, but relatively close, the Ontario Court of Appeal in R v. Al-Enzi, 2021 ONCA 81, per Tulloch J.A., as he then was, indicated as follows at paragraph 85 and 86:

[85] With regard to the appellant's argument that he was a suspect at the time of the November 8 interviews and, consequently, had a right to be informed of his right to counsel, this issue was sufficiently addressed by the trial judge. She accepted the evidence of Detective Monette and Sergeant Hudson that "they had no particular suspect in mind in November 2006 and that they wanted to interview the [appellant] because of his involvement with Mr. Zalal on the afternoon of his death as well as the fact that they believed that the [appellant] knew more about the murder than he had told Detective Hill... The trial judge was entitled to make this finding. I see no reason to interfere.

[86] In any case, this court, per Fairburn J.A. (as she then was), recently held in R v. Joseph, (I am not going to give the citation) that police are not obliged to caution a suspect "simply because he or she is a suspect". Rather, s. l0(b) of the Charter is engaged at the time of arrest or detention. I agree with this position. The appellant in this case was neither arrested nor detained, and the mere fact that he may have been a suspect did not engage his rights under s. l0(b) of the Charter. There was no Charter violation. The November 8 statements were voluntary and properly admitted.

Tainting of Statements

[72] In R. v. Wittwer, 2008 SCC 33 [2008] 2 SCR, the Supreme Court of Canada indicated at paragraphs 21 and 23:

[21] In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct .... The required connection between the breach and the subsequent statement may be "temporal, contextual, causal or a combination of the three" .... A connection that is merely "remote" or "tenuous" will not suffice.

[73] Paragraph 23:

[23] In this regard, I consider particularly apt the observations of Sopinka J., speaking for a unanimous Court in R v. I. (L. R.) and T. (E.) Under the rules relating to confessions at common law, the admissibility of a confession which had been preceded by an involuntary confession involved a factual determination based on factors designed to ascertain the degree of connection between the two statements. These included the time span between the statements, advertence to the previous statement during questioning, the discovery of additional incriminating evidence subsequent to the first statement, the presence of the same police officers at both interrogations and other similarities between the two circumstances .... In applying these factors, a subsequent confession would be involuntary if either the tainting features which disqualified the first confession continued to be present or if the fact that the first statement was made was a substantial factor contributing to the making of the second statement …. In these cases the fact that a caution or warning had been given or that the advice of counsel had been obtained between the two statements was a factor to be considered but it was by no means determinative. While such an occurrence went a long way to dissipate elements of compulsion or inducement resulting from the conduct of the interrogators, it might have little or no effect in circumstances in which the second statement is induced by the fact of the first.

[74] Similar comments are made at R. v. Beaver, 2022 SCC 54, [2022] SCJ No 54, at paragraphs 97 and 98. However, Beaver and Wittwer must be considered in light of R. v. Pino, 2016 ONCA 389. In Pino, the Ontario Court of Appeal indicated as follows, starting at paragraph 48. (c) Did the trial judge err in law by holding that he could not exclude the marijuana because of the two s. 10(b) breaches?

[75] Paragraph 48:

[48] This is a difficult issue. I have concluded that the trial judge erred in law by holding that Charter breaches after the discovery of the challenged evidence cannot meet the "obtained in a manner" requirement in s. 24(2). He considered himself bound by appellate authority. I take a different view of that authority; I do not read it as precluding my conclusion. I think the Supreme Court's generous and increasingly broad approach to the "obtained in a manner" requirement allows the court, in an appropriate case, to exclude the evidence because of a Charter breach occurring after the evidence was discovered.

[49] In this case, I accept Ms. Pino's submission that all three Charter breaches found by the trial judge satisfy the "obtained in a manner" requirement in s. 24(2). They are all "temporally" and "contextually" connected to the evidence sought to be excluded; and they all occurred in the course of the same "transaction": Ms. Pino's arrest. Finally, as I will explain, I would not give effect to the Crown's harmless error argument.

[50] On a superficial reading of s. 24(2), one might be tempted to conclude that the "obtained in a manner" requirement can only be met by a causal connection between the breach and the discovery of the evidence: "but for" the breach the evidence would not have been discovered. But the Supreme Court has long recognized that a causal connection is unnecessary.

[51] Instead, beginning with Strachan, the Supreme Court has taken an increasingly generous and broad approach to the "obtained in a manner" requirement in s. 24(2) -- an approach that looks to the overall purpose of the section, whether admission of the evidence would bring the administration of justice into disrepute.

[52] So, in Strachan itself, Dickson C.J.C. held that "obtained in a manner" did not require a causal connection between the Charter breach and the evidence. A temporal connection would be enough, so long as it was not too remote and so long as the breach and the discovery of the evidence occur "in the course of a single transaction". The chief justice emphasized that the court should look at the "entire chain of events". And there should be no bright line rule; "these situations should be dealt with on a case by case basis". [53] Two years after Strachan, in R v. Brydges, ... Lamer J. held that the connection between the Charter breach and the evidence should be looked at broadly: " ... s. 24(2) is implicated as long as a Charter violation occurred in the course of obtaining the evidence". [54] Then, in 2004, in R. v. Plaha at para. 45, Doherty J.A. added "contextual" to the list of connections that could satisfy the "obtained in a manner" requirement, and he succinctly summarized the Supreme Court's approach:

The jurisprudence establishes a generous approach to the threshold issue. A causal relationship between the breach and the impugned evidence is not necessary. The evidence will be "obtained in a manner" that infringed a Charter right if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three. The connection must be more than tenuous.

[55] Four years later in R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, [2008] S.C.J. No. 33, 2008 sec 33, at para. 21, Fish J., for a unanimous court, adopted Doherty J.A.'s formulation in Plaha (which I have just referred) and stressed that the court's approach to the "obtained in a manner" requirement should be both "purposive" and "generous".

[76] They have a quote from Wittwer, so I will skip that over and go to paragraph 56: [56] A generous approach to the "obtained in a manner" requirement makes good sense because this requirement is just the gateway to the focus of s. 24(2) -- whether the admission of the evidence would bring the administration of justice into disrepute. And, as the trial judge in the appeal before us acknowledged, the addition of "contextual" to "causal" and "temporal" as connections "loosened" the "obtained in a manner" requirement. [57] Despite the generous approach to "obtained in a manner", the Supreme Court has never expressly said that the requirement can be met by a Charter breach that occurred after the discovery of the evidence sought to be excluded. And several Supreme Court decisions since Strachan have presumed the Charter breach occurred before the discovery of the evidence. [58] But the court's recent decision in R v. Mian, ... suggests that it may be inclined to take account of Charter breaches occurring after the discovery of the evidence in an appropriate case. Mian was decided after the trial of the case before us, and therefore the trial judge did not have the benefit of it when he wrote his reasons.

[73] Here, the two s. 10(b) breaches along with the s. 8 breach meet the "obtained in a manner" requirement. The marijuana seized from the trunk of Ms. Pino's car and all three Charter breaches are part of the same transaction. That transaction or the common link between the evidence and the breaches is Ms. Pino's arrest.

[74] The connection between the evidence and the breaches is both temporal and contextual, and is neither too tenuous nor too remote. The connection is temporal because the three breaches are relatively close in time and are part of a continuum straddling Ms. Pino's arrest. The connection is also "contextual". I take "contextual" – a word often used by lawyers and judges -­ to mean pertaining to the surroundings or situation in which something happens. In this case, the something that happened is Ms. Pino's arrest. And the two s. 10(b) breaches and the s. 8 breach surrounded her arrest or arose out of it. Indeed, the trial judge found that the s. l0(b) breaches form "part of the context" in which the s. 8 breach occurred.

[77] And then they go on in paragraph 75 and 76 to discuss a hypothetical. [78] That decision is followed in R v. Green by Justice Dennison at paragraph 223 to 226 and I do not need to review those comments.

The Purpose of s. 10(a) of the Charter

[79] In R v. Gonzales, 2017 ONCA 543, Watt, J.A., held at paragraphs 122 through 125 as follows:

[122] Section l0(a) includes both temporal and substantive aspects. The beneficiaries are those who are arrested or detained. The phrase "on arrest or detention" serves not only to define the class of beneficiaries -- those arrested or detained -- but also to assist, together with the adverb "promptly", in marking out when the right accrues. The provision describes the substance of the information to be conveyed -- "the reasons" for the arrest or detention. At a minimum, s. l0(a) requires that individuals who are arrested or detained for investigative purposes be advised, in clear and simple language, of the reasons for their detention ...

[123] A functional equivalent of the term "promptly" in s. l0(a) is the phrase "without delay", which appears in s. l0(b). There, the phrase is synonymous with "immediately", but does permit delay on the basis of concerns for officer or public safety: R v. Suberu ...

[124] The right to prompt advice of the reasons for detention is rooted in the notion that a person is not required to submit to an arrest if the person does not know the reasons for it. But there is another aspect of the right guaranteed by s. l0(a). And that is its role as an adjunct to the right to counsel conferred by s. l0(b) of the Charter. Meaningful exercise of the right to counsel can only occur when a detainee knows the extent of his or her jeopardy … To determine whether a breach of s. l0(a) has occurred, substance controls, not form. It is the substance of what an accused can reasonably be supposed to have understood, not the formalism of the precise words used that must govern. The issue is whether what the accused was told, viewed reasonably in all the circumstances, was sufficient to permit him to make a reasonable decision to decline or submit to arrest, or in the alternative, to undermine the right to counsel under s. l0(b).

The Purpose of s. 10(b) of the Charter

[80] In R v. Sinclair, 2010 SCC 35, [2010] SCJ 35, the Supreme Court held as follows at paragraph 47:

[47] Section l0(b) should be interpreted in a way that fully respects its purpose of supporting the detainee's s. 7 right to choose whether or not to cooperate with the police investigation. Normally, this purpose is achieved by a single consultation at the time of detention or shortly thereafter. This gives the detainee the information he needs to make a meaningful choice as to whether to cooperate with the investigation or decline to do so. However, as the cases illustrate, sometimes developments occur which require a second consultation, in order to allow the accused to get the advice he needs to exercise his right to choose in the new situation.

[53] The general principle underlying the cases discussed above is this: where a detainee has already retained legal advice, the implementation of the police under s. l0(b) includes an obligation to provide the detainee with a reasonable opportunity to consult counsel again where a change of circumstances makes this necessary to fulfill the purpose of s. l0(b) of the Charter of providing the detainee with legal advice on his choice of whether to cooperate with the police investigation or decline to do so.

[65] We conclude that the principles and case-law do not support the view that a request, without more, is sufficient to retrigger the s. l0(b) right to counsel and to be advised thereof. What is required is a change in circumstances that suggests that the choice faced by the accused has been significantly altered, requiring further advice on the new situation, in order to fulfill the purpose of s. l0(b) of providing the accused with legal advice relevant to the choice of whether to cooperate with the police investigation or not. Police tactics short of such a change may result in the Crown being unable to prove beyond a reasonable doubt that subsequent statement was voluntary, rendering it inadmissible. But it does not follow that the procedural rights granted by s. l0(b) have been breached.

[81] In the more recent case of R v. Edwards, 2024 ONCA 135, released February 23rd, 2024, Doherty indicated as follows at paragraph 14:

[14] Section l0(b) guarantees to persons detained by the police the right to contact and consult with counsel without delay. The right is intended to mitigate the legal jeopardy and psychological disadvantage inevitably flowing from detention by the police.

[15] To serve its intended purpose, s. l0(b) requires that the police inform a detainee of the right to retain and instruct counsel without delay and of the availability of duty counsel. If a detainee indicates a desire to exercise the right to retain and instruct counsel, the police must, absent urgent and dangerous circumstances, afford the detainee a reasonable opportunity to exercise that right. The police must refrain from attempting to elicit evidence from the detainee until he has had a reasonable opportunity to speak with counsel, again except in cases of urgency or danger.

The Right to Remain Silent

[82] In R v. Singh, 2007 SCC 48, [2007] SCJ 48, Charron, J. held as follows, are paragraph 46:

46 Hebert therefore set out the parameters of the s. 7 Charter right to silence to achieve this balance. Some of the limits set out by the Court were responsive to the particular facts in Hebert and, consequently, are only relevant to the situation where a detainee is interrogated by an undercover officer. They need not be repeated here. Of relevance in this case are the first two limits. I reproduce the relevant excerpts here:

First, there is nothing in the rule to prohibit the police from questioning the accused in the absence of counsel after the accused has retained counsel. Presumably, counsel will inform the accused of the right to remain silent. If the police are not posing as undercover officers and the accused chooses to volunteer information, there will be no violation of the Charter. Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence.

Second, it applies only after detention. Undercover operations prior to detention do not raise the same considerations. The jurisprudence relating to the right to silence has never extended protection against police tricks to the pre-detention period. Nor does the Charter extend the right to counsel to pre-detention investigations. The two circumstances are quite different. In an undercover operation prior to detention, the individual from whom information is sought is not in the control of the state. There is no need to protect him from the greater power of the state. After detention, the situation is quite different; the state takes control and assumes the responsibility of ensuring that the detainee's rights are respected.

[83] Paragraph 53:

53 It must again be emphasized that such situations are highly fact-specific and trial judges must take into account all the relevant factors in determining whether or not the Crown has established that the accused's confession is voluntary. In some circumstances, the evidence will support a finding that continued questioning by the police in the face of the accused's repeated assertions of the right to silence denied the accused a meaningful choice whether to speak or to remain silent ... The number of times the accused asserts his or her right to silence is part of the assessment of all of the circumstances, but is not in itself determinative. The ultimate question is whether the accused exercised free will by choosing to make a statement.

[84] In R v. Rybak, 2008 ONCA 354, [2008] OJ No. 1715, the Court of Appeal, Justice Watt held as follows at paragraphs 189 and 190:

[189] In this case, the trial judge concluded that police conduct did not compromise the appellant's right of choice. Investigators repeatedly told the appellant that it was his choice whether to speak with them, and nothing the questioners did or said could take away from that statement. Nowhere did any officer tell the appellant that his (the appellant's) silence could be used against him. Any implicit message to a similar effect did not compromise the appellant's freedom to choose. The common law recognizes an individual's right to remain silent, but the right to remain silent does not include or extend to the right not to be spoken to by state authorities (Referring to Singh) ... Likewise, the right to silence contained within the s. 7 Charter guarantee does not prohibit police from questioning a detainee. Police persuasion, which falls short of denying the detainee the right to choose or of depriving him or her of an operating mind, does not breach the right to silence.

[190] A lengthy interview, coupled with repeated refusals to answer some questions without first speaking to a lawyer, mandate close judicial scrutiny of the admissibility of the record of interview ... In the end, what must be decided is whether the conduct of the state authorities denied the appellant the right to choose speech or silence, or deprived him of an operating mind.

[85] In R v. Roy, [2003] OJ No. 4272, Justice Doherty held similarly at paragraph 13:

[13] This was a prolonged interview of a detained person. The appellant declined to answer questions on many occasions. These features of the interview invite close judicial scrutiny of the admissibility of the statement. Clearly, the repeated assertion by a detained person during a lengthy interview that he does not want to speak to the police any further will provide strong and sometimes conclusive evidence that any subsequent statement was not the product of a free exercise of the detainee's right to choose whether to speak. The question is, however, a factual question to be decided on a case by case basis by the trial judge.

[86] Subsequent to these authorities, the right to silence is simply summarized in Grant at paragraph 21:

[21] More specifically, an individual confronted by state authority ordinarily has the option to choose simply to walk away: R v. Esposito (and other authorities) … at p. 94; Dedman v. The Queen, …: Although a police officer may approach a person on the street and ask him questions, if the person refuses to answer the police officer must allow him to proceed on his way, unless … [he] arrests him ....

[87] In R v. Barges, [2005] OJ. No. 5595, Justice Glithero, a well-respected colleague of mine from Kitchener, and sometimes an ad hoc judge of the Court of Appeal, but now retired, in a case with a number of similarities to Ms. Eden's case, held at paragraphs 96 through 98 as follows:

[96] The length of the interview, the sometimes aggressive stance used, the repeated assertions by the accused that he does not wish to answer or speak to the police, and the persistent reference to the themes that it is only fair to his family for him to advance his side of the story, and, more importantly, that failure on his part to do so will lead to the police putting forth a picture that he is a monster and a slaughterer, and the suggestions by the interviewers that if he wishes to give his explanation, now is the time and that he may not have any further opportunity to do so all leave me with a reasonable doubt as to whether this statement has been proven to be voluntary. A fair reading of the interview supports the inference that cooperation by Mr. Young may deflect what otherwise will be the painting of a planned and deliberate murder involving him. Although he does succumb in the sense of any directly inculpatory admissions, those utterances he does make which the crown views as useful flow from the atmosphere created within the interview.

[97] More importantly, and whether I am correct on the voluntariness issue or not, I would exclude this statement on the basis that its probative value is slight and greatly outweighed by the prejudicial effect which would flow if the Crown was allowed to place before the jury pages and pages of police theorization, which is either unresponded to by the accused or where his attempts to respond are often thwarted.

[98] The right to remain silent should be respected and not converted into a weapon to be used against an accused, which would be the result if the jury were permitted to hear all these colourful and damning accusations by the police coupled with the choice of the accused to say nothing in response. The police theories have no probative value if unadopted by the accused, but have prejudicial effect as constituting a theorization which the officers would not be able to advance, directly, when giving their own evidence.

Section 24(2) Analysis

[88] In R v. Beaver, the Supreme Court of Canada reviews the classic Grant factors and summarizes them as follows. Paragraph 116:

[116] Whether the administration of justice would be brought into disrepute by admitting Beaver's confession involves examining the impact its admission would have on public confidence in the administration of justice over the long term, based on a balancing of the three lines of inquiry described by this Court in R. v. Grant: … (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused's Charter-protected interests; and (3) society's interest in the adjudication of the case on its merits.

[117] Section 24(2) of the Charter is not an automatic exclusionary rule precluding the admission of all unconstitutionally obtained evidence. Such evidence will only be excluded when the accused establishes that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute … Balancing the relevant considerations under s. 24(2) is a qualitative determination that is not capable of mathematical precision.

[89] Finally, statements obtained in violation of an accused's constitutional rights are usually excluded at the trial. In R v. Ricketts, [2000] OJ No. 1369, the Ontario Court of Appeal held as follows at paragraphs 14 and 15:

[14] The temporal, contextual and causal connections between the first statement and the second and third statements satisfy us that the second and third statements were obtained in a manner that breached the appellant's constitutional right to counsel.

[15] The appellant's admissions were conscriptive in nature. Generally speaking, such evidence is excluded because of its adverse effect on the fairness of the trial. (See R v. Burlingham and R v. Stillman)

Application of the Law to the Facts

[90] Dealing with statement number one, June 10th, 2021, the audio statement at Tabs 3 and 4 of Exhibit 1 (a). [91] This audio statement was taken at the very early stages of the investigation. The victim was declared deceased at 11:20 p.m. on June 9th. Detective Maguire attended at the scene at approximately one a.m. on June 10th. He was advised that 14 year old Kaylynn had been at the scene and further that Rebecca Eden, who lived with the deceased at the murder scene at 3815 Mathewson, she was not at the residence, the murder scene, when the police attended. She was the deceased's girlfriend and was not located at that time, so obviously the police wished to speak with her. [92] It appears that the police were aware early on that the deceased and Rebecca had an argument prior to the murder and obviously they wanted to speak to her, as I have indicated, and get a statement from her. [93] Kaylynn was located by tracking her cell phone pinging from 313 Ridgeway Road in Fort Erie at 1:16 a.m. Detective Maguire proceeded to Ridgeway. Upon approaching the doorway he heard two females inside stating: "He's not dead, he's not dead". Detective Maguire knocked and Rikki Anger answered. Detective Maguire identified himself with a badge. He asked for Kaylynn. He was told she was inside with Rebecca Eden. He asked for Kaylynn to come out and talk. Kaylynn complied with this request. [94] At 2:38 a.m., Kaylynn was interviewed. Detective Maguire then asked to speak to Rebecca. She exited the house at 2:47 a.m. Officer Maguire asked to speak to her. Rebecca stated she didn't want to go to the police station. However, she agreed to do an audio interview in the front seat of the police vehicle. She was not a suspect at that time but was a person of interest who could be a witness. There was a potential she could be involved in the offence. She was not told she did not have to speak to the police. [95] Rebecca opened the front passenger door of the cruiser and got inside voluntarily. There were no threats and no promises. At page 2 of Tab 3 of Exhibit l(a), Rebecca is told she is not under arrest and is free to leave at any time. She is told that she may be charged with murder and is cautioned and given her right to counsel. (See page 6 of 8 of Tab 3) [96] Rebecca indicates she does not need to contact counsel. Rebecca is interviewed from 2:54 a.m. to 3:09 a.m. At the end of the audio interview, Rebecca is told that Kaylynn is going to a secure place. (See pages 12 through 13) [97] The officer asks if Rebecca wants to hang out with Kaylynn. (See page 12) Rebecca is asked to hang out there for a couple of minutes in order to let the officer make a couple of phone calls. Rebecca then gets out of the vehicle. At some later point, Rebecca agrees to do a video interview at the police station and agrees to have the police drive her there at around 3:37 a.m. [98] In the circumstances outlined, I am satisfied that Rebecca was not detained during the audio interview. She was told she was free to leave at any time. The police did not arrest her as there were no grounds to do so. There was no physical or psychological restraint. (See Suberu at paragraphs 21 through 24 and Grant at paragraph 44) [99] This was a situation where a crime had been recently committed and the police were involved in preliminary and/or exploratory questions of potential witnesses, of perhaps eventually of someone who may or may not become a suspect. This does not support a contention that there was a detention pursuant to the Charter. (See Suberu at paragraphs 28 through 31) [100] Given the Grant factors outlined in paragraph 44, a reasonable individual would perceive that the police were making general inquiries pursuant to a murder investigation, which is their duty to do so. The audio interview was brief, in the front seat of a cruiser, with no physical or psychological restraint. There was no suspension of Rebecca's individual interest by a significant physical or a psychological restraint. (See Grant at paragraph 44) [101] Section l0(b) is engaged at the time of arrest or detention. There was no arrest or detention. There was no Charter violation accordingly. (See R v. Al-Enzi at paragraph 85 through 86) [102] The defence argues that subsequent Charter violations in a subsequent video statement two hours later, can retroactively apply to the initial audio statement where there was no Charter breach. I will deal with that eventually. [103] The majority of case law deals with situations where the initial statement is inadmissible due to a Charter breach and that initial breach may render subsequent or later statements inadmissible if there are temporal and/or contextual and/or causal connections between the initial flawed statements and subsequent statements. (See Wittwer at paragraphs 21 and 23, and Beaver at paragraphs 97 through 98. [104] However, these decisions have to be considered in light of the Pino decision which I will deal with in a minute. [105] Regarding voluntariness, there were no threats, promises, oppression, police trickery and Rebecca had an operating mind throughout. In her March 11 video statement, Rebecca indicates she voluntarily denied a lawyer the first time. (See page 61 of Tab 8) [106] After considering all the circumstances surrounding the statement, I am satisfied beyond a reasonable doubt that the initial audio statement made by Rebecca Eden on June 10th was voluntary. (See Oickle at paragraph 68 through 71). [107] However, as indicated, Charter considerations pursuant to the case of Pino have to be considered as well and that will be dealt with now under the video two statement discussions. [108] Video number two, video statement June 10th, 2021, made by Rebecca Eden. After Rebecca Eden was transported to the station at about 3:37 a.m. to provide a voluntary statement, which is what she believed, events occurred which significantly changed the landscape of what Rebecca was told would occur. [109] At a team meeting at the police station at approximately 4:25 a.m., Detective Atkinson, freshly assigned to take over the investigation at four a.m., instructed Detective Maguire to interview Rebecca and caution Rebecca out of an abundance of caution, according to him. [110] At that point, the police were aware there were two suspects who had told the deceased, "This is what happens when you hit girls." The police had been informed that the Rebecca and the victim had an argument that might be related and that argument had occurred before the murder. There was no information that Rebecca was present at the time of the stabbing. At that point in time, there was insufficient information to conclude that Rebecca was a suspect. That was a possibility at most. [111] Rebecca had some involvement but the detectives didn't know what that was. She had told the police her phone was "blowing up" after the murder, in her audio statements. There were exigent circumstances, according to Detective Atkinson to seize Rebecca's phone. Accordingly, Detective Atkinson gave instructions that Rebecca was to be told she could leave any time. However, that was not true, as if Rebecca refused to hand over her phone she was to be detained and the police were to charge her with obstruct police, seize her phone and release her unconditionally. [112] Detective Maguire was not to tell Rebecca she could not leave until her phone was seized. That was to be done at the end of the interview. It is clear, Rebecca was not free to leave the police station after 4:25 a.m., until the police had her phone. [113] Detective Atkinson conceded in cross-examination that if a person thinks they are free to leave but the police in fact are not permitting that person to leave, that person is detained. [114] In law, is Rebecca in fact detained once the decision was made to keep her at the station until the police had her phone? Detective Atkinson conceded there was no warrant for these phones and Detective Maguire was not instructed to get Rebecca's informed consent to give up her phone to the police. [115] Detention under s. 9 and 10 of the Charter refers to a suspension of the individual's liberty interests by a significant physical restraint. Rebecca had voluntarily gone to the police station to provide a voluntary video statement. She was not told she couldn't leave the station unless she gave up her phone. She, and 14 year old Kaylynn, were singled out to be deprived of their liberty until they had provided the police with their phones. [116] I find that the police were sneaky in dealing with Rebecca and when they decided not to tell Rebecca about seizing her phone until near the end of the interview, that exacerbated the situation. She only knew at the beginning of the interview that they wanted a voluntary statement. [117] Rebecca was not a sophisticated criminal. She has no record and according to her Tab 8 statement, she had limited legal knowledge. (See for example pages 57 and 58 of Tab 8) [118] Detective Maguire was also instructed by Detective Atkinson to advise Rebecca that she was free to leave, which was not true and that was done by Detective Maguire, I suspect because he knew that she was not free to leave. [119] My review of the video statement at Tab 5 indicates at page 4 through 6, Rebecca was told she may be charged with murder, cautioned, given her rights to counsel and the secondary caution. Significantly, Detective Maguire, contrary to his instructions, did not advise Rebecca she was free to leave at any time. I find that he did not tell her that, simply because she was not free to leave until the police had her phone, and he knew that. [120] I conclude in all of these circumstances, Rebecca Eden was detained at the police station from around 4:30 a.m. onwards. (See Grant at paragraph 44) Her video interview on June 10th, 2021, commenced at 5:08 a.m. to 5:55 a.m., while she was detained. At page 5 of Tab 5, she was perfunctorily given her rights to counsel. When asked if she wanted to speak to counsel she replied: I, I have nothing to - right. That is not either a yes or a no. Section 10 of the Charter indicates:

Everyone has the right on arrest or detention, (a) to be informed promptly of the reasons therefore; and (b) to retain and instruct counsel without delay and to be informed of that right.

[121] Rebecca Eden was not told that she was being detained when she gave the police her phone. She should have been told that, and then she should have been informed about her right to counsel so she could have got legal advice about the police seizing her phone. [122] Exercising that right, without being told that, would have been meaningless, unless she was told the reasons for detention, that is, she couldn't leave until the police had her phone. She was not told that. (See Sinclair at paragraph 51 and Gonzales at paragraphs 122 through 125) [123] Section l0(b) is to be interpreted in a way that respects the detainee's s. 7 right, whether to choose or whether or not to cooperate with the police investigation. (See Sinclair at paragraphs 47 and 53) [124] I find that the accused was detained at the time of the June 10th, 2021, video statement at Tab 5 and further that hers. Her Section 10(a) and l0(b) rights were violated. The police should have refrained from interviewing Rebecca Eden until she had been informed of the reasons for her detention and thus would be able to make an informed decision whether to consult counsel, given the reasons for detention. (See Edwards at paragraph 15) [125] Pino indicates that if there is a temporal connection between statement number one and statement number two they are both considered to form part of the same transaction or course of conduct and any Charter breaches involving one or both apply to both. [126] The police in the present case, obtained the audio statement and then asked the accused to attend at the station to confirm and expand upon the audio statement, which occurred a couple of hours later. This obviously was a part of one continuing transaction. [127] The audio statement was played in the video statement. Common sense indicates that they are indeed part of the same transaction or same course of conduct. [128] Accordingly the Charter breaches discussed regarding statement number two also apply to statement number one, per Pino, despite no Charter breaches occurring in the taking of the first audio statement. [129] Regarding s. 24(2), I find the Charter infringing state conduct to be serious, as it involves sneaky and manipulative maneuvers to obtain Rebecca's phone. The impact of the breach on Rebecca was serious, especially as she was an unsophisticated individual dealing with the most serious charge in the Criminal Code, and was maneuvered into giving up her phone without being fairly treated. [130] Society has an interest in the adjudication of the case on its merits, but the exclusion of these audio and video statements cannot be fairly stated to destroy the Crown's case, from what I've seen. (See Beaver at paragraphs 116 through 117) [131] Further, the statements are conscriptive in nature. Generally speaking, the evidence is normally excluded due to its adverse effect on the fairness of the trial. (See Ricketts at paragraph 15) [132] Accordingly, the admission of these two statements would bring the admission of justice into disrepute. The statements at Tabs 3, 4 and 5 are not admissible at this trial. [133] Dealing finally with statement number three, the video statement March 11th, 2022. The accused stated over the approximate two hour statement that she wished to exercise her right to remain silent in three different ways, approximately 106 to 108 times. It is very clear from observing the accused's demeanour and statements that she, being an unsophisticated detainee, was adamant that she wanted to follow the legal advice from her lawyers, as they knew the law better than her. [134] To boil the statement down to its most simplest terms, the statement consists of the officer elaborating in great detail the fruits of the investigation. The officer's statements are responded to by the accused, indicating that on the advice of her lawyer, she did not wish to make a statement. She said this many, many times. It is clear that the accused was deprived of her free will when the officer refused to take no for an answer and continued on and on with numerous elaborations of the details of the investigation and the police theory about it. The conduct of the police in this instance, denied the right of the accused to choose speech or silence. [135] This "statement" was not the product of the detainees right to choose whether to speak. (See Singh at paragraph 53, Rybak at paragraphs 189 and 190, and Roy at paragraph 13) Basically this statement is a police jury address with damning accusations by the police, coupled with the choice of the accused to say nothing in response, as was her constitutional right. [136] Accordingly, this "statement" has overwhelming prejudicial effect and has no or very slight probative value. (See Barges at paragraphs 97 through 98) [137] This statement, therefore, is inadmissible on two grounds. The first is, the statement was obtained by a breach of the accused's 7 rights and applying the three Grant factors its admission would bring the administration of justice into disrepute. (See also the Ricketts comments at paragraph 14 and 15, previously alluded to)

[138] Regarding the Grant factors:

1. Seriousness of the Charter infringing conduct.

[139] I find that the police did not take the accused's right to silence seriously. The accused as an unsophisticated individual with no record and according to her she had no or limited knowledge of the law. (See pages 57 and 58 of Tab 8) [140] This was not a technical breach. Rebecca stated she did not wish to make a statement over a hundred times, but that request was ignored and the officer persisted in the interview, despite her repeated requests.

2. Impact of the Charter breach.

[141] The breach seriously compromised the interests of Rebecca Eden. It resulted in a “statement" that was basically a police jury address, followed by Rebecca's assertions of her right to silence, as was her constitutional right. In the result, the violation seriously impacted Rebecca's rights, who was facing the most serious charge in the Criminal Code.

3. Interests of the trial on its merits.

[142] Rebecca's statement was really the police summary of its case. The statement at Tab 8 has little to no probative value but exceedingly high prejudicial effect. The exclusion of this evidence does not gut the prosecution's case and is nowhere close to being the entirety of the case, from what I understand from the officer's jury address. Accordingly, the exclusion of the statement would not impair the truth seeking function of the criminal court.

CONCLUSION

[143] The balancing of these factors strongly favour the exclusion of the Tab 8 statement. (See R v. McGuffie, 2016 ONCA 365 at paragraph 62 and 63) [144] In the result, the admission of this statement would also bring the administration of justice into disrepute and it is not admissible at this trial. [145] Secondly, further, the Tab 8 "statement" has overwhelming prejudicial effect that significantly outweighs the probative value, which probative value is either slight or non-existent. Accordingly, I would exclude the statement on this basis alone, as Justice Glithero did in Barges, at paragraphs 96 through 98. [146] In light of these findings, I do not need to deal with any of the defence arguments, or the possible tainting of statement three by the inadmissible statements one or two. The statement in Tab 8 is not admissible at this trial. The statements in Tabs 6 and 7 deal with the rights to counsel proceedings and have no probative value and are excluded as well. [147] In conclusion, the initial audio statements dated June 10th, 2021, at Tab 3 and 4 are not admissible at trial. I am very troubled by the fact that Pino requires me to exclude the Tab 3 statement as without the subsequent interview it would have been both voluntary and no Charter breaches, but I am bound by Pino and since it's all part of one continuing transaction, the subsequent Charter breaches make that statement inadmissible. [148] In the result, all the statements in Exhibit l(a) are not admissible at trial.

Skarica J. Released: December 23, 2024

COURT FILE NO.: CR-23-29 DATE: 2024-12-23 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: His Majesty The King Applicant - and – Rebecca Eden Respondent REASONS FOR JUDGMENT SKARICA, J. Released: December 23, 2024