Ontario Superior Court of Justice

Court File No.: CR-24-00006209-0000
Date: 2025-04-15

Between

His Majesty the King
and
Lovepreet Singh

Bryan Pillon and Kyrstin Krainz, for the Crown
Kas Marynick, for the Applicant

Heard: April 9, 2025

Reasons for Judgment

Thomas, J.:

Introduction

[1] Lovepreet Singh (the defendant) is charged with two counts of dangerous driving causing the death of Syed Bokhari and Syeda Bokhari. I heard and determined applications related to a statement given to police by the defendant as a blended voir dire in this judge alone trial.

[2] There were two statements given by the defendant. The first is a brief oral statement given to Constable Chounan of the Ontario Provincial Police (O.P.P.) on the roadside while the defendant was being treated for his burns in an EMS vehicle (Roadside Statement). The second statement is audio-recorded by Constable Hillier who speaks to the defendant at the hospital approximately four hours after the collision (Hospital Statement).

[3] The Crown seeks only to prove voluntariness for the recorded Hospital Statement and will not rely upon the Roadside Statement. The defence contends that there are voluntariness and Charter (s. 10(b)) infringements for both statements and that the defendant was at least psychologically detained throughout. The defence argues that even though the Crown does not seek to admit the Roadside Statement, the lack of voluntariness and the Charter breach at the roadside taints the later statement.

[4] After argument, I concluded that the Crown had not satisfied its onus to prove voluntariness beyond a reasonable doubt and excluded the Hospital Statement. I provided brief oral reasons with a promise of written reasons to follow. These are those reasons.

Background

[5] On September 23, 2022 it is alleged that the defendant was driving a loaded transport truck eastbound on Highway 401 in the Municipality of Lakeshore (Essex County).

[6] It is without dispute that this transport truck was travelling in the furthest right lane of this three lane highway when it collided with the rear of a white Toyota Corolla. The Corolla was occupied by the two deceased victims.

[7] The Corolla was driven by the force of that impact into the rear of a black Subaru with New Jersey licence plates. The Subaru was occupied by the husband, daughter, and son-in-law of the female deceased. The family in the white and black vehicles were travelling from Windsor to Toronto.

[8] The Corolla was immediately engulfed in flames as was the tractor unit of the tractor trailer. Despite efforts by the defendant and others, the victims perished in the fire. For his efforts, the defendant suffered some significant burns to his forearms, face, and right hand.

[9] The collision occurred at or about 7:24:40 on September 23, 2022. Several vehicles stopped to assist at the accident scene. An EMS ambulance from Chatham-Kent was first on the scene and a second ambulance based close by in Belle River attended as well, followed by fire trucks.

[10] Two Ontario Provincial Police marked police cruisers arrived at approximately 7:33 p.m. and blocked traffic as well as taking charge of the accident scene and speaking to civilian witnesses. The dispatch information was of a rear-end collision with fire and victims trapped. Constable Chounan spoke to witnesses and EMS personnel while Constable Hillier blocked the roadway with his police vehicle and controlled traffic diverting it onto County Road 27, also known as Belle River Road.

[11] All witnesses describe a chaotic scene with fire engulfing both vehicles and growing in intensity, smoke, and minor explosions.

The Taking of Statements

Constable Chounan

[12] Constable Chounan within 10 to 15 minutes of arriving at the scene commenced speaking to those involved. He found the relatives of the trapped victims who were obviously distraught and positioned about 25 to 50 metres ahead of the burning vehicles.

[13] He gained information from Hassnan Ali Syed who had been driving the black Subaru. Mr. Syed advised that the road was closing ahead down to the right lane only. He moved from the far left lane across to the right and was reducing his speed. He merged ahead of his relatives in the white Corolla who followed him. Mr. Syed told the officer he slowed down and came to a normal stop. The line of traffic was then moving slowly forward. He saw the truck coming from behind and turned his wheel to the right to try and move out of the lane but there was no time and the chain reaction collision occurred.

[14] Constable Chounan tried to speak to the two passengers of the black Subaru, however they were too distraught. He learned from a source, he cannot now identify, that the driver of the transport truck was being treated in an ambulance.

[15] It is his recollection that he moved to the open side door of the rear portion of the ambulance. He saw a male sitting upright either on a chair or perhaps a stretcher. There was at least one EMS attendant present as well. He confirmed the identity of this person as Lovepreet Singh and upon his questioning, Singh confirmed he was the driver. The defendant was able to converse in English and the officer had no concerns about his mental or physical ability to answer questions.

[16] It was the evidence of Constable Chounan that he was still gathering information. He did not consider the defendant as a suspect. He spoke to the defendant for only a few minutes asking him what had happened. The defendant replied that he had been driving his truck in lane 2 (that is the lane furthest to the right) at about 70 to 80 km/hr when two vehicles merged in front of his and he applied the brakes but could not get stopped.

[17] In his cross-examination, Constable Chounan stated that he had two conflicting stories; either the vehicles merged unsafely, or they were stopped in the lane and rear-ended. He did not want to jump to conclusions. He did not feel he needed to caution the defendant. He certainly was not detained in his view and the defendant was taken to the hospital without a police officer with him. Constable Chounan said that it was too early in the investigation to conclude anything.

Constable Hillier

[18] Constables Hillier and Chounan arrived at the accident scene at the same time, but in separate patrol vehicles. Constable Hillier testified that he went to control traffic and mark debris on the roadway for the accident reconstruction officers.

[19] At 10:55 p.m. he was directed by his shift supervisor, Sgt. Rogers, to attend at the hospital and take a cautioned statement from the defendant Lovepreet Singh. Constable Hillier had only limited information about the accident at the time and knew it involved vehicles merging before impact. He agreed that in his experience the vehicle that rear-ended was usually in the “at fault” position.

[20] When Constable Hillier arrived at the hospital, he was directed by nursing staff to the defendant who he said he recognized as having been at the accident scene.

[21] The defendant was sitting on the side of a bed with bandages on his arms and hands. He had been cleared to be discharged and to leave. Constable Hillier had preliminary conversation with the defendant which included asking if he was up to providing a statement and Singh answered that he was.

[22] Constable Hillier does not have a complete recollection of what they spoke about pre-statement, but the conversation was short. He believes he told the defendant that he had been sent by his supervisor to take a statement. He may have said “I don’t know if you are going to be charged with a criminal or Highway Traffic Act offences”. Constable Hillier said he was just trying to be honest with Singh. He took no notes of this pre-statement conversation.

[23] The more formal portion of the statement was recorded on Constable Hillier’s work cellphone. The defendant’s description of the collision was consistent with the Roadside Statement.

[24] For the purposes of these applications, the following portions of the Hospital Statement are important:

(AUDIO RECORDING BEGINS)

CST. HILLIER: Okay, so I have the audio recording activated. I’m just going to set it down here in front of – in between the two of us, uh, so the microphone can pick us up. So my name’s Constable Hillier with the Lakeshore O.P.P. It’s 11:47 p.m. on the 23rd of September 2022. Um, I just want to read you a caution. You could be charged with an offence, whether – it could be criminal, it could be, uh, Highway Traffic Act. We don’t know, because we don’t know what happened, right, as I explained to you earlier.

LOVEPREET SINGH: Yeah.

CST. HILLIER: You’re not obligated to say anything, unless you wish to do so. Whatever you say may be given into evidence against you, okay?

LOVEPREET SINGH: Okay.

CST. HILLIER: So, um, keeping that in mind, uh, you also have the right to a lawyer. You have the right to obtain and instruct counsel without delay. You can telephone any lawyer you wish, if you choose to do that. Uh, you also have the right to free advice from a Legal Aid Lawyer before you give me a statement. Um, if you are charged with an offence, uh, it’s standard, you can apply to the Ontario Legal Aid Plan for assistance. 1-800-265-0451 is the number that will put me – put you in contact with a Legal Aid duty counsel lawyer for free legal aid advice right now. Do you understand that –

LOVEPREET SINGH: Yeah.

CST. HILLIER: Okay. You also understand you have the right to consult a lawyer before talking to me?

LOVEPREET SINGH: Yeah.

CST. HILLIER: So keeping that in mind that – the caution I read to you, do you want to provide a statement to me today, to tell me what happened?

LOVEPREET SINGH: Yeah.

CST. HILLIER: Okay. Um, what can you tell me what happened on the 401? Do you know the direction you were travelling?

[25] Constable Hillier maintained in his evidence that at the conclusion of the interview he still did not have a “suspect” and that had neither a reasonable suspicion or reasonable and probable grounds. He thought it might have been an unavoidable collision.

[26] Constable Hillier said he used the O.P.P. issued statement caution card that day and has no explanation for why he read only the primary caution and not the secondary as well.

[27] The secondary caution would have been:

“If you have spoken to any other police officer or anyone else in a position of authority has spoken to you in connection with this matter, I want it clearly understood that I do not want it to influence you in making any statements.”

[28] Constable Hillier left the hospital and relayed his information to Sgt. Rogers and Constable Chounan who was the lead investigator. The defendant was allowed to return home and was not arrested until approximately a month later.

Analysis

[29] The Crown submits that out of a sense of fairness to the defendant it does not seek to rely upon any of the oral Roadside Statement. No doubt the Crown has considered the impact of events on the defendant in that moment. There was fire, smoke, and explosions. The defendant was highly emotional at his inability to save the victims. The commitment to attempt a rescue was voiced to Kunwar Singh who had stopped to assist. In addition, the defendant was injured and at the time was being treated for burns by EMS personnel.

[30] Despite the Crown’s position the comments to Constable Chounan in the ambulance are still a factor in my assessment of voluntariness regarding the Hospital Statement.

[31] A general statement on the purpose and goals of the common law were considered by the Court of Appeal in R. v. Beaver, 2022 SCC 54 at paras. 45-48 set out below:

[45] The common law confessions rule provides that a confession to a person in authority is presumptively inadmissible, unless the Crown proves beyond a reasonable doubt that the confession was voluntary (Oickle, at paras. 30 and 68; R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 11; Tessier (SCC), at paras. 39, 68 and 89). Under the confessions rule, an involuntary confession “always warrants exclusion” (Oickle, at para. 30; see also R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 38). But a voluntary confession need not always be admitted into evidence. If a voluntary confession was obtained in a manner that breached the Charter, it can still potentially be excluded under s. 24(2) (Oickle, at para. 30; Singh, at para. 38).

[46] At the heart of the confessions rule is the delicate balance between individual rights and collective interests in the criminal justice system (Singh, at paras. 1, 21, 27-28, 31 and 34; Tessier (SCC), at paras. 4 and 69; Oickle, at para. 33). The “twin goals” of the rule involve “protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes” (Oickle, at para. 33). On the one hand, the common law recognizes an individual’s right against self‑incrimination and right to remain silent, such that an individual need not give information to the police or answer their questions absent statutory or other legal compulsion; on the other hand, the police often need to speak to people when discharging their important public responsibility to investigate and solve crime.

[47] Voluntariness, broadly defined, is the “touchstone” of the confessions rule (Oickle, at paras. 27, 32 and 69; Spencer, at para. 11; Singh, at para. 31). Voluntariness is a shorthand for a complex of values engaging policy concerns related to not only the reliability of confessions, but also to respect for individual free will, the need for the police to obey the law, and the fairness and repute of the criminal justice system. Involuntary confessions can be unreliable, unfair, and harmful to the reputation of the criminal justice system (Oickle, at paras. 32 and 70; Singh, at paras. 30 and 34; Tessier (SCC), at paras. 70 and 72). A statement may be involuntary “because it is unreliable and raises the possibility of a false confession, or because it was unfairly obtained and ran afoul of the principle against self-incrimination and the right to silence” (Tessier (SCC), at para. 70).

[48] The application of the confessions rule is necessarily flexible and contextual. When assessing the voluntariness of a confession, the “trial judge must determine, based on the whole context of the case, whether the statements made by an accused were reliable and whether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to a person in authority” (Tessier (SCC), at para. 68). The trial judge must consider all relevant factors, including the presence of threats or promises, the existence of oppressive conditions, whether the accused had an operating mind, any police trickery that would “shock the community”, and the presence or absence of a police caution. These factors are not a checklist that supplants a contextual inquiry (see Oickle, at paras. 47, 66-67 and 71; Spencer, at paras. 11-12; Singh, at para. 35; Tessier (SCC), at paras. 5, 68, 76 and 87).

[32] As a result of the Crown position, it is unnecessary to determine the admissibility of the Roadside Statement. It is important to note that the defendant provided a description of the collision to Constable Chounan while he was in the ambulance.

[33] As mentioned in Beaver, my application of the confessions rule to the Hospital Statement must be “flexible and contextual” (Beaver, para. 48). In this case, there are a number of state actions that lead me to the conclusion that the Crown cannot meet its onus.

Pre-Statement Conversation

[34] The importance of recording a statement from a defendant was emphasized in R. v. Moore-McFarlane, para. 65. The failure of an unrecorded statement where the ability to record is available makes the non-recorded interrogation suspect (Moore-McFarlane, para. 65).

[35] In the instant case Constable Hillier had an off the record conversation before he recorded on his cell phone. The officer has no firm recollection what was discussed. It is admitted that it might have been a conversation about several different offences the defendant might face. In the recorded statement, the officer alludes to the unrecorded conversation “because we don’t know what happened, right, as I explained to you earlier.” It is difficult for the Court then to know what if any importance this conversation might have had to the voluntariness of the statement. Alone this concern may not have required exclusion but the Court needs to view the statement-taking exercise cumulatively and so I proceed with my further concerns (R. v. Ordonio, 2025 ONCA 135, para. 28).

Partial Caution

[36] As is evidenced in the portions of the statement set out above, Constable Hillier fails to read the secondary caution that serves to warn an interviewee that he should not be influenced by any prior conversation in deciding if he will relinquish his right to remain silent.

[37] I cannot accept with the dynamics of this accident, known by Constable Hillier, and the direction of his supervisor to take a “cautioned” statement from the defendant, that Constable Hillier did not view Singh as a suspect. As described in Beaver at paras. 50 and 51, set out below, the effect of a lack of a caution of a suspect is a prima facie evidence of involuntariness:

[50] The role of a police caution in the voluntariness analysis was recently clarified in Tessier (SCC), where Kasirer J. affirmed, at para. 5, that “the presence or absence of a police caution is an ‘important’ factor in answering the question of voluntariness”, based on Charron J.’s guidance in Singh, at para. 33 (see also Singh, at para. 31; Boudreau v. The King, [1949] S.C.R. 262, at p. 267).

[51] In Tessier (SCC), Kasirer J. explained that if the accused was a suspect, the absence of a caution is prima facie evidence of — but does not itself establish — involuntariness (paras. 11 and 89). Neither a caution nor proof of actual knowledge of the right to silence is a necessary condition of voluntariness (Tessier (SCC), at paras. 12 and 74; see also Singh, at paras. 31 and 33; Boudreau, at p. 267). Nevertheless, the absence of a caution “weighs heavily” in the voluntariness analysis because it is “prima facie evidence that the suspect has been unfairly denied their choice to speak to the police and that, as a consequence, the statement cannot be considered voluntary” (Tessier (SCC), at para. 11).

[38] The lack of a caution is an important factor but not determinative of voluntariness alone. Here there was a partial caution. Constable Hillier went some distance to confirm that the defendant wished to speak to him. However, in this instance, prior contact with a person in authority is not a hypothetical. The defendant here provided Constable Chounan with an oral statement about the accident just four hours before.

[39] I find as a fact that Singh was a suspect in this investigation at the time of the Hospital Statement. He should have received a full caution so that there could be no concern that he was unfairly denied his choice to speak to Hillier. It may very well be that the first statement made was a substantial factor contributing to the making of the second statement (R. v. Manchulenko, 2013 ONCA 543, para. 67). Again, this is but one factor in my analysis.

Potential Inducement

[40] Constable Hillier starts the interview by saying:

“You could be charged with an offence, whether – it could be criminal, it could be, uh, Highway Traffic Act. We don’t know, because we don’t know what happened, right, as I explained to you earlier.”

[41] The officer maintained in his trial evidence that he was just trying to be fair to the defendant. Another compelling view might be that as a “quid pro quo” for telling the officer what happened the defendant might find himself charged with the less serious Highway Traffic Act offence.

[42] I have set out below paras. 18-20 of R. v. Wabason, 2018 ONCA 187. There, the Court considered the effect of implicit inducements in combination with other factors:

[18] The application judge erred in discounting the inducements and threats on the basis that no police or court action was promised in return. Properly conceived, the interviewing officer’s veiled inducements of decreased jeopardy for speaking and threats of increased jeopardy for silence gave rise to an implicit quid pro quo.

[19] Given this quid pro quo, the application judge should have gone on to assess whether, in all the circumstances, the inducements and threats “standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne”: Oickle, at para. 57.

[20] In so doing, the application judge was required to consider the characteristics of the individual suspect: Oickle, at para. 42. Yet, the application judge did not consider the effect of the threats and inducements upon a 19-year-old aboriginal youth who had attempted to assert his right to silence on at least 6 occasions during the interview, and who asked several times to return to his cell.

[43] Here the characteristics of this suspect must be considered as well. The suspect was communicating in broken English. The evidence discloses that he did not always understand what was being asked.

Conclusion

[44] The cumulative effect of the concerns I have discussed above have lead me to the conclusion that the Crown has not satisfied me beyond a reasonable doubt that the Hospital Statement was voluntarily given by the defendant.

[45] As a result, the statement was ruled by me as inadmissible.

Justice Bruce G. Thomas
Released: April 15, 2025.