Court File and Parties

COURT FILE NO: CRIM J(P) 371/23 DATE: 2024 10 07 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Seeta Scully, for the Crown

- and -

GURKIRAT SINGH Carolyn Gandy, for the Applicant

HEARD: April 30, June 7, 2024

RULING ON S. 10(B) AND VOLUNTARINESS

D.E HARRIS J.

[1] The applicant was wanted for attempt murder, assault with a weapon and assault bodily harm. He retained a lawyer and on April 25, 2022, the two went to the police station for the applicant to turn himself in. At the station, the applicant was arrested. He was then interviewed by the officer in charge, Det. Cst. Siani. The interview extended over to the early hours of the next day. Both the applicant and the officer-in-charge speak Punjabi. The interview was conducted exclusively in Punjabi. The applicant was not particularly forthcoming in the interview.

[2] After his arrest, the applicant was incarcerated at the Maplehurst Correctional Complex. He retained counsel. On May 10, 2022, about two weeks after his arrest, he was brought to an interview room deep in the jail. Det. Cst. Siani and another officer, P.C. Kevin Asare came into the room. They interviewed the applicant. The purpose of the interview was to discover the identities of two other suspects in the crime. In the course of the interview in which the officers persistently pursued the identity of the two other men, the applicant admitted that he was on the scene of the crime, that Manjot Singh was there as well and the two other suspects were also present. He refused to name these two men, one of whom the police said wielded a baseball bat.

[3] Before the interview at Maplehurst, the police officers did not advise the applicant’s lawyer that they were going to interview the applicant. During the interview, neither police officer gave the applicant his rights to counsel or either the primary or secondary cautions. Despite the April 25, 2022 interview upon arrest being conducted in Punjabi, this interview at Maplehurst was conducted exclusively in English.

[4] The applicant concedes the voluntariness and admissibility of the April 25-26 statement. He disputes that the May 10 statement was voluntary and also argues that his s. 10(b) right to counsel was violated.

WAS SECTION 10(B) OF THE CHARTER VIOLATED?

[5] In the applicant’s interview on May 10, 2022 in Maplehurst, although the two officers believed they were obligated to give the applicant his rights to counsel, they omitted to do so for reasons that will be explored later on. It is argued that s. 10(b) of the Charter was violated as a result. The Crown took the position that since there had been no change in jeopardy since the applicant was given his right to counsel on April 25, 2022, the police following R. v. Sinclair, 2010 SCC 35 at paras. 53-55 were not obligated to give the right to counsel again.

[6] After argument was completed, counsel were invited to re-attend for further argument and asked to respond to dicta in the decisions of the Supreme Court in R. v. Hebert, [1990] 2 S.C.R. 151 and in R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405. In Hebert, Justice McLachlin (as she then was), after establishing a rule that police working undercover are prohibited by s. 7 of the Charter from actively eliciting statements from a detained individual, said,

130 … 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. (Emphasis added)

[7] Prior to Hebert, there was some considerable discomfiture in permitting police questioning interceding between retained counsel and client. As quoted in Hebert,

90 … Gale J. (as he then was) stated in rejecting a confession in R. v. McCorkell (1962), 27 C.R.N.S. 155, 7 Cr. L.Q. 395 at 397 (Ont. H.C.): It is my opinion that once an accused person has retained counsel to the knowledge of the police or other persons in authority, the latter ought not to endeavour to interview and question that accused person without first seeking and obtaining the concurrence of his solicitor. So strong is my view in this respect that I am therefore exercising my discretion in the way I have indicated, perhaps wrongly, because, strictly speaking, the statement thus procured was probably admissible. I decline, however, to give any encouragement in the future to persons in authority to circumvent the position of an accused’s solicitor by going directly to speak to the accused.

[8] The Hebert court evidently disagreed with this view.

[9] The holding in Hebert was reiterated by the Supreme Court in Singh, where Justice Charron for the majority said after quoting from above passage at paragraph 130 of Hebert,

47 Mr. Singh takes particular issue with the leeway afforded to the police in questioning the detainee, even after he has retained counsel and has asserted his choice to remain silent. He submits that courts have erroneously interpreted the underlined passage above [from Hebert] as permitting the police to ignore a detainee’s expressed wish to remain silent and to use “legitimate means of persuasion”. I say two things in response to this argument. First, the use of legitimate means of persuasion is indeed permitted under the present rule — it was expressly endorsed by this Court in Hebert. This approach is part of the critical balance that must be maintained between individual and societal interests. (Emphasis added)

[10] The Sinclair judgment permitting the detainee only one call to counsel unless there is a change in jeopardy implicitly supports these holdings in Hebert and Singh.

[11] The comments of the Supreme Court in both Hebert and Singh could be argued to be obiter dicta. But obiter of the Supreme Court is often binding on the lower courts depending on whether it was meant to be authoritative and judging how close to the ratio decidendi of the case it falls: R. v. Henry, 2005 SCC 76, [2005] 3 SCR 609 at paras. 55-59; R. v. Prokofiew, 2010 ONCA 423, 100 O.R. (3d) 401 at paras. 18-21, aff’d on other grounds, 2012 SCC 49, [2012] 2 S.C.R. 639.

[12] The conclusion that there is nothing prohibiting police questioning after counsel has been retained was a reasoned conclusion in both Hebert and Singh, integral to the right to silence issues being considered. Even if it could be argued to be obiter, in my view, it was clearly meant to be authoritative and is therefore binding on trial courts.

[13] Furthermore, the language of s. 10(b) and the jurisprudence considering it in its different permutations supports this conclusion. Section 10(b) reads:

Everyone has the right on arrest or detention ... (b) to retain and instruct counsel without delay and to be informed of that right ... (Emphasis added)

[14] Consistent with this language, there are precious few if any cases contemplating s. 10(b) violations outside the immediate temporal boundary of arrest and detention. That is the exclusive focus of all the jurisprudence on the subject: see e.g. Singh at para. 32. In the situation here, the time between the arrest and the interview was two weeks. As the law currently stands, there is no informational or implementational obligation on the police beyond the time frame of the initial detention or arrest. The exception of course is when jeopardy changes and more serious charges arise: Sinclair at paras. 53-55. That is not the current situation.

[15] For these reasons, I conclude that there was no obligation to give the right to counsel again when the police interviewed the applicant at Maplehurst. A related concern is whether the failure to give the right to counsel violated s. 7 of the Charter, the right not to be deprived of life liberty or security except in accordance with the principles of fundamental justice. However, the decision in Singh holding that the s. 7 right to silence upon detention is subsumed in the voluntariness rule and has no independent role forecloses success on this front. The analysis must move to the issue of voluntariness itself.

WAS THE APPLICANT’S INTERVIEW IN MAPLEHURST VOLUNTARY?

[16] The principal issue in this pre-trial motion is whether the failure to give the primary caution during the statement taking process at Maplehurst after arrest was fatal to a finding of voluntariness.

[17] The recent case of R. v. Tessier, 2022 SCC 35 revitalized the importance of the primary caution. The Tessier decision puts the primary caution at the very centre of the procedural protections due an individual at the investigatory stage of the criminal process. The salutary purpose of the caution is to convey the suspect’s right to silence directly and plainly. The right to silence is a key facet of the right against self-incrimination (Singh, para. 34) and is one of the “basis tenets of our legal system” (Hebert, para. 20). In R. v. White, [1999] 2 S.C.R. 417, Iacobucci J. said this about the principle against self-incrimination:

41 The principle against self-incrimination was described by Lamer C.J. in Jones, supra, at p. 249, as “a general organizing principle of criminal law”…

42 In Jones, supra the principle against self-incrimination was defined as an assertion of the fundamental importance of individual freedom. As the Chief Justice stated, at pp. 248-49: The principle against self-incrimination, in its broadest form, can be expressed in the following manner: ...the individual is sovereign and ... proper rules of battle between government and individual require that the individual...not be conscripted by his opponent to defeat himself.... (Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), § 2251, at p. 318.) Any state action that coerces an individual to furnish evidence against him- or herself in a proceeding in which the individual and the state are adversaries violates the principle against self-incrimination. Coercion, it should be noted, means the denial of free and informed consent. Similarly, in S. (R.J.), supra, at para. 81, is the reference to “the principle of sovereignty embodied in the idea that individuals should be left alone in the absence of justification, and not conscripted by the state to promote a self-defeating purpose”.

43 The definition of the principle against self-incrimination as an assertion of human freedom is intimately connected to the principle’s underlying rationale. As explained by the Chief Justice in Jones, supra, at pp. 250-51, the principle has at least two key purposes, namely to protect against unreliable confessions, and to protect against abuses of power by the state. There is both an individual and a societal interest in achieving both of these protections. Both protections are linked to the value placed by Canadian society upon individual privacy, personal autonomy and dignity: see, e.g., Thomson Newspapers, supra, at p. 480, per Wilson J.; Jones, supra, at pp. 250-51, per Lamer C.J.; and Fitzpatrick, supra, at paras. 51-52, per La Forest J. …

44 The jurisprudence of this Court is clear that the principle against self-incrimination is an overarching principle within our criminal justice system, from which a number of specific common law and Charter rules emanate, such as the confessions rule, and the right to silence, among many others …

[18] There are two means by which the right to silence is conveyed to a detainee. The constitutionalized right to counsel upon arrest or detention in s. 10(b) of the Charter is the first. Communicating the right to silence is the primary purpose of the right to counsel at the immediate post-detention stage: Hebert at para. 109. Counsel will gear the explanation of the right to the immediate situation at hand and often emphasize the stratagems the police will use to override the choice to remain silent: R. v. Badgerow, 2008 ONCA 605, at para. 50; R. v. Zhao, 2019 BCSC 1056 at paras. 85-126.

[19] The second means of conveying the right to silence is the primary caution given by the police from their adversarial position vis a vis the suspect. It informs an individual that they have the right to remain silent but if that right is given up and the suspect chooses to speak, what they say can be used against them at trial. The police who will oftentimes attempt to override the right to silence must themselves convey the right to silence to the suspect.

[20] These two sources of the right to silence each have their own strengths and attributes. Each serves to augment the other. Together they equip the suspect to fully understand in concrete terms their right not to talk to the police. The ultimate purpose is to redress the imbalance between the power of the state and the vulnerability of a person suspected of criminal conduct: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 22.

[21] Charron J. in Singh, in the context of a discussion of the voluntariness rule, recommended that suspects be given the primary caution informing them of the right to silence:

31 … the notion of voluntariness is broad-based and has long included the common law principle that a person is not obliged to give information to the police or to answer questions. This component of the voluntariness rule is reflected in the usual police caution given to a suspect and the importance attached (even before the advent of the Charter) to the presence of a caution as a factor in determining the voluntariness of a statement made by a person under arrest or detention: see R. v. Boudreau, [1949] S.C.R. 262; R. v. Fitton, [1956] S.C.R. 958; and R. v. Esposito (1985), 24 C.C.C. (3d) 88 (Ont. C.A.).

33 … Even if the suspect has not formally been arrested and is not obviously under detention, police officers are well advised to give the police caution …

[22] The Tessier judgment went one step further and solidified the sometimes neglected primary caution as a major protection for the right to silence. It has now become an indispensable part of the voluntariness inquiry.

[23] To bolster its view of the importance of the primary caution, the Tessier court took the innovative step of constructing a rebuttable presumption of involuntariness if the caution is not given. The Court held that if a person is a suspect, the absence of a caution constitutes prima facie evidence that they were denied their right to choose not to speak to the police. An evidentiary onus shifts to the Crown to prove that the statement was voluntary despite the absence of a caution. The statement will be involuntary and inadmissible if the Crown fails to satisfy that onus.

[24] To satisfy their burden, the Crown must show that: i. The person was not actually a suspect; or, ii. That the absence of a caution was of no real consequence and voluntariness has nonetheless been proven beyond a reasonable doubt. The Court added an important additional avenue of inquiry to this second part. Building on comments made in the leading voluntariness case of R. v. Oickle, 2000 SCC 38 at paras. 69-70, when the failure to give a caution is a deliberate tactic that amounts to police trickery in relation to the right to silence, it may prevent the Crown from proving voluntariness: Tessier, paras. 8-11. That is the main issue in this voluntariness ruling.

THE PRIMARY CAUTION WAS NOT GIVEN

[25] When incarcerated in Maplehurst, the applicant had already been arrested and charged so there can be no question that he was a suspect as referred to in Tessier. This is the triggering condition for the police obligation to give the primary caution. A suspect is under police scrutiny and is more vulnerable than a non-suspect. When, as in the present situation, the individual has been detained by the state, the suspects vulnerability and the power imbalance with the state is even higher and is at its zenith: Singh, para. 32.

[26] It is of some importance that the primary caution was given to the applicant at the beginning of the criminal process against him on April 25, 2022. Upon arrest after surrendering to the police, the applicant was read in English his rights to counsel and both the primary and secondary cautions by an officer in the police station. Due to language issues, these were translated into Punjabi by a Punjabi speaking officer. The applicant said that he understood. When asked if he wanted to speak to a lawyer, he replied in Punjabi that he had come into the police station with his lawyer.

[27] The effect of this caution was essentially eliminated soon afterwards. About an hour later, just before midnight, Det. Cst. Saini interviewed the applicant in Punjabi. She verified that he had spoken to a lawyer and then said:

Q. I want to tell you that if you do not want to say anything in your defense, it's okay. If you want to speak in your defense, you can talk to me. Have you talked to any other police officer? A. Yes. Q. If that police officer has ... what I want to tell you is that if any police officer has told you that when you come to this room, you can leave after telling the truth ... I just want to tell you that you should talk to me only because you want to talk to me, not because of the influence of anybody. Alriqht, okay? A. Okay.

[28] This was a seriously flawed rendition of the primary caution. There are two parts to the primary caution: the right to silence and the consequence of giving it up: i.e. that whatever is said may be used against the suspect at trial. In this instance, the right to silence was not conveyed in a satisfactory way. Saying its “okay not to speak in your defence”, is not the same as saying that there is a right to silence and there is no obligation to say anything. The officer also failed to inform the applicant that the consequence of speaking would be that anything said could be used against him in court. Although the concept of waiver has not found universal favour in this context (see McLachlin J, in Hebert at paras. 129-130 but also see Wilson J. at para. 10 and Sopinka J. at para. 37 to the contrary), a valid waiver generally requires knowledge of the consequences of giving up a procedural right: R. v. Wills, [1992] O.J. No. 294, 12 C.R. (4th) 58 (Ont. C.A.) at para. 53; Korponay v. Canada (Attorney General), [1982] 1 S.C.R. 41 at para. 16; and Tessier, para. 74. Neither part of the caution was accurately stated.

[29] Even if the primary caution had been conveyed properly at this initial stage, in my view, the two-week gap between the arrest and the Maplehurst interview required the primary caution to be given again. The two-week gap, the institutional setting, the confrontational nature of the interview and the fact there were two officers interviewing the applicant clearly called for a reiteration of the right to silence. The circumstances had changed substantially.

[30] It can be presumed that a lawyer contacted following the informational component of the right to counsel given immediately upon arrest or detention will advise of the right to silence: Singh, at para. 33; R. v. Braithwaite, [2002] O.J. No. 1955 (Ont. S.C.); Hebert, para. 130. Police questioning is generally imminent when counsel speaks to the accused. However, it cannot be presumed that a lawyer will advise an accused person that if the police attempt to question him several weeks down the road, he has the right to silence in that situation too. The attendance of police officers at a correctional facility for an interview of an accused person is a rare event and it cannot be expected a lawyer will guard against it during conversations with their client. Without this, it cannot be presumed that an accused on their own will remember and apply the right to silence in what is a new and different situation.

WHAT FACTORS FAVOUR THE CROWN TO PROVE VOLUNTARINESS

[31] In R. v. Beaver, 2022 SCC 54, decided a few months after Tessier, the Supreme Court summarized several of the pertinent factors to consider in determining voluntariness in situations where the primary caution is not given,

53 Some of the non-exhaustive factors that can help show the suspect was subjectively aware of their right to silence or of the consequences of speaking to the police include (1) the suspect’s awareness of being recorded; (2) indications that the suspect is directing the conversation; (3) the suspect’s awareness of what is being investigated and their alleged role in the investigation; (4) the suspect’s exercise of the right to silence by declining to answer police questions; and (5) the suspect’s eagerness to talk, although this factor can weigh for and against such a finding, depending on the circumstances (Tessier (SCC), at para. 88).

[32] On the first factor, it was held in Tessier that subjective awareness of the right to silence or the consequences of speaking is strong evidence of voluntariness: Tessier, at para. 88. On the facts, there was subjective knowledge that the evidence could be used: see paras. 90-97. Mr. Tessier had been making statements to the police to advocate for his own version of events. This fact led to the conclusion that a free choice was made whether to speak to the police or not and there was no oppression or any degree of police trickery.

[33] On the evidence in the case under consideration, the officers’ videotaped the interview on their cell phones, switching phones midway when one of their phones died. The applicant clearly knew he was being videotaped. He must have known that the recording could be used against him.

[34] Officer Asare did most of the talking. He started by saying that the applicant had been at Maplehurst for two weeks and had an opportunity to think about what happened. He could not make promises but the police knew that he was not the man who hit the victim with the bat. They needed help to identify who the other guys were. The applicant said that he did not know them.

[35] Officer Asare then hit on a theme which he would repeat throughout the interview. The applicant was the one that was in jail, not the others. He was “taking the charge” for the others. There were four people involved, he was one of them, the others were not in jail. The applicant said he was going to fight for his innocence. Officer Asare answered that the other guys should be in jail, not just him. He was still party of the offence because he was there. The applicant answered that he knew that. He denied throughout the interview knowing the other men. He did not deny getting in a car with them after the assault but maintained, despite Officer Asare’s skepticism, that he did not know them. Officer Asare then said that in the video, the applicant was helping punch one person. The applicant acknowledged this, saying that the guy was drunk as was one of the other victims.

[36] The applicant admitted seeing the video. Some of it was played for the applicant. He gave more detail about the fight. He maintained he did not know the person with the bat. He admitted that the car was his. The applicant admitted he was with a girl and provided her nickname to the police. Officer Asare said that they knew he and Manjot lived together and that Manjot drove the applicant’s car on the day in question.

[37] When the cellphone died and the interview was continued with the other one, Officer Siani took over the questioning. She too hung on the theme of the applicant being the only one in jail. It must be really hard because he had not been in jail before, she said. The video of the assault was played for him again. Officer Siani told the applicant several times to look her in the eyes and tell her that he did not know who the guy was. Why was the applicant protecting them? He was in jail and the guy who swung the bat was not. If they were in jail, would they protect him, Mr. Singh? What was he afraid of? What would his parents in India think about him being in prison? Det. Saini said that with her own parents, it would “sure as shit” not make them happy. At this point, the applicant became much less responsive.

[38] When Det. Cst. Siani asked more and more insistent questions, the applicant would not always answer. He often hung his head and appeared to shut off.

[39] Several observations can be made with respect to the Beaver factors: 1. It is clear that the applicant knew he was being recorded; 2. But he did not direct the conversation in any way. The officers were in total control and were interviewing the applicant primarily to discover the identity of the two other perpetrators; 3. The applicant was fully aware that he was under investigation and of his alleged role in the offence; 4. The applicant fully participated to about the halfway mark in the interview and then because often unresponsive. However, he never invoked his right to silence per se or indicated he wanted to speak to his lawyer. In my view, the applicant shut down out of exhaustion brought about by the shame of the charges, and the persistence and repetition of the questioning; and 5. The applicant never appeared eager to talk but, up to the point he became unresponsive, he continued to answer the police questions nevertheless.

DID THE POLICE ENGAGE IN TRICKERY?

[40] A deliberate failure of the police to give the primary caution was specifically addressed in Tessier at para. 87:

[The denial of the right to silence] might arise where there is evidence of police trickery, for example circumstances in which the absence of a caution is the result of a willful failure to give a caution or a deliberate tactic to manipulate the suspect into thinking they have nothing at stake (see, e.g., R. v. Crawford, [1995] 1 S.C.R. 858, at para. 25; R. v. Auclair, (2004), 183 C.C.C. (3d) 273 (Que. C.A.), at para. 41; M. (D.), at para. 45; Higham, at para. 22). Impropriety on the part of the police, usually in the form of obscuring the jeopardy faced by the suspect to encourage cooperation, may unfairly deny a suspect their right to silence. Plainly, the statement should be excluded if the police deception shocks the community. But even if it does not rise to that level, deceiving the interviewee into thinking that, as a mere witness, they are in no jeopardy and that their statements will not be used in evidence against them could preclude admissibility at the end of the day. “[T]he ability to make a meaningful choice remains pertinent where trickery is involved”, write Lederman, Fuerst and Stewart, “and exclusion is mandated where there is a reasonable doubt as to the confession’s voluntariness in this regard” (¶8.126). (Emphasis added)

Also see para. 10.

[41] The main question here is whether the failure to give the primary caution was wilful and deliberate. First, some attention should be paid to the fact that Officers Saini and Asare omitted to give the applicant the right to counsel. Although in law providing the s. 10(b) right was unnecessary for the reasons explained above, both officers testified that they believed that it had to be given but simply forgot to do so.

[42] Det. Cst. Saini when asked in chief by Ms. Scully why she did not give the right to counsel, she replied succinctly, “It slipped my mind.” When Officer Asare was asked in chief why he did not inform the applicant of his s. 10(b) right, he launched into an involved explanation. The officers had scheduled time for the interview with the Maplehurst authorities but when the officers arrived, Maplehurst was not expecting them. There had been a misunderstanding. When it came time to interview the applicant, Officer Asare was flustered. He testified that the effect of this “mishap” was that he was “thrown off my game.” He completely forgot to give the right to counsel.

[43] Det. Cst. Saini who testified first, did not mention anything about this “mishap” with Maplehurst administration, although it is true that she was not asked about it. As I understand it, neither officer had any significant notes of their visit to Maplehurst. Neither counsel can be faulted for not questioning Det. Cst. Saini on this topic.

[44] Det. Cst. Saini at the time had 13 years experience with the Peel Regional Police. She estimated that she had taken about 500 statements from accused persons at the time she testified. Officer Asare has worked as a police officer with Peel Regional Police for 9 years. He admitted to doing hundreds of interviews with accused persons.

[45] It is rare for an experienced police officer to fail to give rights to counsel when they believe they are required to do so. The language of the right to counsel is easily accessible on the inside cover of the police memo book. Providing it to accused persons is second nature. It must happen in each and every arrest and detention. The police know from their experience that not giving the right to counsel when an accused is arrested or detained is generally fatal to the admissibility of any statement they take. The situation here was somewhat different because the arrest had been two weeks earlier. But neither officer referred to this fact in explaining why they did not give the right to counsel.

[46] In reference to the cautions, primary and secondary, the answers from the officers were the same. Det. Cst. Saini answered with the same pat phrase spoken in the same tone and with the same flat inflection as she had used in reference to the right to counsel: “It slipped my mind.” In the same way, with respect to the cautions, Officer Asare again said, “I was thrown off my game.” He completely forgot to give the cautions as he had also forgotten the right to counsel. My observations with respect to the accessibility and acknowledged importance of the primary caution is the same as with the right to counsel.

[47] I had the opportunity to observe Officer Asare both on the video and in person in court on this voir dire. In the video, only a partial side view is visible because Det. Cst. Saini was filming by pointing the cell phone directly at the applicant. But Officer Asare was clearly visible. On the video, I observed that there was no sign from his speech or body language that Officer Asare was shaky or unsettled in any way. He was supremely confident. Comparing him with how he seemed on the witness stand on this voir dire, there was no difference. He did not appear to be “off his game” in the statement video in any way.

[48] A change in demeanour can be important but no change can be as well: R. v. S. (N.), 2012 SCC 72, [2012] 3 S.C.R. 726 (S.C.C.) at paras. 26-27. Recognizing the limitations and caution appropriate to approaching demeanour evidence, I can and do put some weight on these observations: R. v. G.M.C., 2022 ONCA 2 (Ont. C.A.) at para. 63-71. They provide helpful confirmation of my findings on this issue.

[49] It is also of more than passing interest that a little bit more than halfway through the interview, Det. Cst. Saini said to the applicant, “Okay, you don’t have to talk to us if you don’t want to okay, but we do appreciate that you are talking to us okay.” This shows that the primary caution was on her mind, despite “forgetting” to give it during the interview.

[50] Putting all the circumstances together, I find it unlikely an experienced officer would forget to give the right to counsel to an accused when it was believed to be required. I find it unlikely that another experienced officer interviewing the accused would simultaneously also forget the right to counsel. In the same vein, I find it unlikely that an experienced officer would forget to give the cautions, even at a time just prior to Tessier when there was less emphasis on the primary caution. Again, that the other officer would forget is unlikely as well.

[51] The compound effect of the unlikely nature of each of these four examples of forgetting suggests what really happened. Piling unlikelihood upon unlikelihood increases exponentially the implausibility of the testimony that the officers simply forgot to give the primary caution. In the end, it is my conclusion that these officers should not be believed. In fact, I disbelieve them. The glue that holds this negative credibility finding together is the strong motive not to give a detainee the primary caution because of the likelihood they will invoke their right to silence, frustrating the elicitation of a statement. That is what happened here. The police in a concerted effort to obtain information on the other two assailants deliberately withheld the primary caution from the applicant. This is reminiscent of another recent instance in which I found the Peel Regional Police deliberately withheld the primary caution: R. v. Essue, 2023 ONSC 5492.

[52] There is other reinforcing evidence of police trickery in their dealings with the applicant in Maplehurst. In my view, the police use of English to conduct the interview was for the specific purpose of exploiting the applicant’s vulnerability. This is the evidence that leads to that conclusion. When he was arrested at the police station on April 25, the arresting officer, Officer Dykxhoorn, realized that English was not the applicant’s first language. He asked the applicant if he wanted an interpreter. The answer was yes and so a Punjabi speaking officer, P.C. Punni, was brought in. Officer Dykxhoorn would read the rights in English and then P.C. Punni would translate into Punjabi if the applicant signalled that he did not understand. These occurred several times. For example, the legal aid duty counsel portion of the rights to counsel was not fully understood and P.C. Punni then explained it in Punjabi for the applicant.

[53] To conduct an interview of the applicant, a Punjabi speaking officer was requested. The officer who attended was Det. Cst. Saini, who later became the officer in charge. The interview commenced just before midnight, three hours after the rights were given by Cst. Dykxhoorn. It was entirely in Punjabi with the odd English word appearing from time to time.

[54] Two weeks later, on May 10, 2022, it was again the officer in charge Det. Cst. Saini who attended with Officer Asare at Maplehurst. This interview was conducted solely in English. The applicant was never given a choice of language. Det. Cst. Saini knew full well that the applicant on April 25-26, had requested that his interview be conducted in Punjabi, his mother tongue, but she proceeded to engage in an only English interview two weeks later.

[55] What happened here should be viewed in light of the deliberate choice not to give the primary caution. The two are of a piece. Questioning the applicant in English instead of Punjabi was for the express purpose of disadvantaging the applicant. And it did have this effect. This is true despite my observation from the interview that Mr. Singh does have a working grasp of English and understands to a degree what is being said. But, on the other hand, he was clearly not feigning when he asked upon arrest for some parts of his rights to be translated from English to Punjabi.

[56] In my judicial experience, there is generally some significant consternation when an English as a second language speaker is placed into a stressful situation and confronted by legal language and concepts outside of their daily knowledge and usage. This accords with common sense. The capacity to understand and respond to language depends on context. Stress and the use of specialized language renders a second language more difficult to comprehend. Det. Cst. Saini used the ploy of speaking in English in confronting the applicant for the purpose of putting him in a more vulnerable position.

[57] Lastly, the officers’ decision to wait two weeks after arrest before attending at Maplehurst merits some comment. Neither of these experienced officers had interviewed an accused at a jail before. This was their first time. For good reason, it is an unusual step to take, relatively rare in policing practice. Several times in the interview, it was mentioned that the applicant was in jail for the first time and now had some time to think about things. The police idea was to allow the applicant to stew about his predicament for some time before interviewing him. Setting the interview in a small interview room in the jail after two weeks of incarceration was for the purpose of increasing the pressure on the applicant and make it more likely that he would talk and tell the police the identity of the two men involved in the assault. There may be nothing greatly objectionable about this tactic in normal circumstances and viewed in isolation, but together with the other police maneuvers used here, it warrants some consideration.

[58] In conclusion with respect to police trickery, the failure to give the primary caution was a deliberate strategy to make it more likely that the applicant would speak to the officers and give them the information they were after. The use of English in the interview, as opposed to the applicant’s native tongue of Punjabi, was coercive and specifically for the purpose of putting the applicant at a disadvantage and exploiting his vulnerability. In this context, while it would probably not be objectionable in and of itself, the confrontational nature of the interview and the circumstances in which it was held took further advantage of the applicant’s vulnerability with respect to his right to choose whether to speak or not. The police did everything they could to put the applicant in a defensive position.

CONCLUSION

[59] For many years it has been recognized that the voluntariness rule guards against both unreliable statements and the fairness of the statement taking process: Oickle, at paras. 69-71; Hebert at paras. 82, 85, 104; R. v. Whittle, [1994] 2 S.C.R. 914; R. v. Rothman, [1981] 1 S.C.R. 640 (S.C.C.) at 696-697 (S.C.C.) per Lamer J. (as he then was) concurring; Singh, para. 35; Tessier, para. 70.

[60] In Tessier, the court isolated situations which raise reliability concerns and those raising fairness concerns. Of course, some situations may raise both. In this case, as in Tessier itself, the only real concern is fairness. The applicant largely implicated himself, making admissions against his interest. There could still be reliability concerns of course but they are not uppermost: Tessier, paras. 71, 102.

[61] As with police conduct examined under the rubric of the Charter, fairness in the context of the voluntariness rule examines the conduct of the police and its effect on the suspect. McLachlin J. wrote in Hebert in reference to the Charter,

126 The right to choose whether or not to speak to the authorities is defined objectively rather than subjectively. The basic requirement that the suspect possess an operating mind has a subjective element. But, this established, the focus under the Charter shifts to the conduct of the authorities vis-à-vis the suspect. Was the suspect accorded the right to consult counsel? Was there other police conduct which effectively and unfairly deprived the suspect of the right to choose whether to speak to the authorities or not? (Emphasis added)

[62] The same concept that principal scrutiny should be of the police was adopted under the common law voluntariness rule in Singh at para. 36 and Tessier, at para. 11.

[63] Is it proven beyond a reasonable doubt that the applicant’s right to choose whether to talk to the police or remain silent was not tainted by police trickery? Several factors support a finding of voluntariness on these facts. The applicant knew that what he said could be used against him. He was aware he was being videotaped. He had retained counsel and was presumably told at the time of the initial interview that he had the right to remain silent. The applicant also knew the specific allegations being made against him.

[64] If there had been no police trickery, it is likely that no significant fault would be found with the police questioning. The statement would have been voluntary. To be sure, there was repeated importuning of the applicant and persistence in pursuing the identity of the other two men. An attempt was made to minimize the applicant’s jeopardy by acknowledging that he was not the man with the bat. There were two officers bearing down on him asking questions, pointing a cellphone camera at the applicant during the interview. Officer Asari is a very large man and was a strong presence in this small room. There was a great deal of persistence from both officers. The room was windowless and claustrophobic. The applicant had been incarcerated for two weeks in the facility, the first time he had ever been incarcerated.

[65] Looked at cumulatively, as the law now stands, the police questioning in itself probably did not upset the proper balance between the state in its law enforcement role and the right of the applicant to make a meaningful choice whether to speak or not as established in Oickle. However, the intimidating nature of the questioning set the scene for the police trickery. The applicant, facing a very serious accusation, was not told of his right to silence nor of the consequence that his statement would be admissible at trial if he relinquished it. Being detained and in a jail for some time increased the deleterious effect of the lack of the primary caution. As was said in Tessier at para. 79,

…the vulnerability and legal jeopardy faced by detainees [as opposed to the person on the street] cement the need for a police caution. Fairness commands that they know of their right to counsel and, by extension, of their right to remain silent so that they can make an “informed choice” whether or not to participate in the investigation (I borrow the expression “informed choice” from Singh, at para. 33). The balance courts seek to achieve in applying the confessions rule in this context tilts in favour of protecting the rights of the detained person and of limiting society’s interest in the investigation of crime. The weight attached to the absence of a caution in these circumstances, while not determinative of the question of voluntariness owing to the contextual analysis required, will be at the highest end (see Singh, at para. 33). (Emphasis added)

[66] The deliberate failure to give the applicant his right to silence as encapsulated in the primary caution cannot but compromise the fairness of the statement taking process and the applicant’s right to choose whether to speak or remain silent. It is impossible to know whether the applicant would have spoken or not had he been properly cautioned. There are three reasons that this ought not to be a substantial hurdle. First, following Hebert, Singh and Tessier, the main focus ought properly to be on the police and their conduct. Second, by reason of the change in the law brought about by Tessier, where the detainee is a suspect and is not given the primary caution, the evidentiary onus falls on the Crown to prove that the statement was voluntary. The contention that the applicant would have said what he said even if he had been given his right to silence must be shown by the Crown. This effort cannot be successful as it would be based on nothing other than speculation.

[67] Third, and most fundamentally, it is unnecessary to show a causal link between the failure to give the primary caution and the statement made by the applicant. It would not be possible to do so. While a causal link is generally necessary in some form in the case of inducements (R. v. Fernandes, 2016 ONCA 772 at paras. 29-30), police tricks stand on a different footing. The focus is the police unfairness in resorting to tricks and its purpose and effect in denying the right to silence.

[68] A quote from the leading case of Oickle is decisive on the voluntariness issue in this case. In Oickle, Justice Iacobucci considered “police trickery that unfairly denies the accused’s right to silence” (para. 69). He then wrote,

70 Wigmore perhaps summed up the point best when he said that voluntariness is “shorthand for a complex of values”: Wigmore on Evidence (Chadbourn rev. 1970), vol. 3 § 826, at p. 351. I also agree with Warren C.J. of the United States Supreme Court, who made a similar point in Blackburn v. Alabama, 361 U.S. 199 (U.S. Ala. 1960) at p. 207:

[N]either the likelihood that the confession is untrue nor the preservation of the individual’s freedom of will is the sole interest at stake. As we said just last Term, “The abhorrence of society to the use of involuntary confessions . . . also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.” ... Thus a complex of values underlies the stricture against use by the state of confessions which, by way of convenient shorthand, this Court terms involuntary, and the role played by each in any situation varies according to the particular circumstances of the case. (Emphasis added)

[69] This theme has some affinity with s. 24(2) of the Charter and the analysis of the seriousness of state misconduct in that context. That only makes sense. The decision in Singh that voluntariness subsumes s. 7 Charter principles demonstrates that the common law and Charter requirements are to some extent analogous when a person in authority elicits a statement from a detainee: see Singh, paras. 37-40. Charron J. said in Singh at para. 37,

…voluntariness, as it is understood today, requires that the court scrutinize whether the accused was denied his or her right to silence. The right to silence is defined in accordance with constitutional principles.

[70] Police trickery analyzed in the context of the voluntariness rule may share some elements with Charter analysis. Specific to this case, the judgment in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 echoes what Justice Iacobucci wrote in Oickle at paragraph 69 above,

72 The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. (Emphasis added)

[71] To admit the applicant’s statement in the face of the deliberate and flagrant unfairness used by the police in this interview would necessarily be to condone their conduct. That would be a grave mistake. This was a severe violation of ours norms and values, not a minor or inadvertent error. The police deliberately upset the delicate balance between permitting law enforcement to investigate and solve crime and protecting an individual’s vulnerability to state scrutiny while under physical detention. The purpose of the police was to deny the applicant his right to silence in order to increase the likelihood that he would give up his right to silence and choose to speak to them. Finding that the statement was nonetheless voluntary would denigrate our system of justice.

[72] The misleading testimony from the police officers in court ought also to be factored into the unfairness used during the interview with the applicant. The Supreme Court in the companion case to Grant, R. v. Harrison, [2009] 2 S.C.R. 494, 2009 SCC 34, after finding the police evidence false said at para. 26:

While not part of the Charter breach itself, [the misleading testimony] is properly a factor to consider as part of the first inquiry under the s. 24(2) analysis given the need for a court to dissociate itself from such behaviour. As Cronk J.A. observed, "the integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority" (para. 160).

[73] For these reasons, the applicant’s statement has not been proven voluntary by the prosecution and is held to be inadmissible at his trial.

D.E. HARRIS J. DATE: October 7, 2024

COURT FILE NO: CRIM J(P) 371/23 DATE: 2024 10 07 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIS MAJESTY THE KING - and - GURKIRAT SINGH RULING ON S. 10(B) AND VOLUNTARINESS D.E HARRIS J.

Released: October 7, 2024