Ontario Superior Court of Justice

Court File No.: CR-0007/24
Date: 2025-07-17
Heard at Sudbury: June 20, 2025

Between:
His Majesty the King
and
M.D., Accused

Appearances:
D. Beaton, for the Crown
P. Gill, for the Accused

Reasons for Decision on the Accused’s Utterances to Police
A.D. Kurke

Overview

[1] The accused is charged on a 7-count indictment with various offences involving intimate partner violence against complainant M.F. on May 26, 2022, and with various gun possession and storage offences from May 31, 2023. June 20, 2025 had been set for a voluntariness application by the Crown with respect to utterances made by the accused at the time of his arrest to the arresting officer D/C McGale of the Ontario Provincial Police.

[2] Earlier in the week of the hearing of the Crown’s application, the accused filed an application challenging the admissibility of those utterances on Charter grounds. There was no continuation of the judicial pre-trial or opportunity for the Crown to respond before the June 20, 2025 hearing date. The defence also complained that a video of the interaction between police and the accused in the fingerprinting room (the “print room”) has been “lost”. No “lost evidence” application was yet before the court. The Crown nevertheless was prepared to argue the statement issues on June 20, 2025, as this matter is scheduled for a jury trial in the fall, and time is short. In the interests of the effective use of court time, and on the understanding that the issues can be revisited, if necessary, when and if materials were filed on the “lost evidence” application, I ordered the parties’ statement applications to proceed. The Crown called D/Sgt. Cruikshank and D/C McGale as witnesses. The accused testified on his own behalf.

Facts

[3] After conducting an investigation into allegations of intimate partner violence, D/C Shannon McGale of the Little Current detachment of the Ontario Provincial Police, working in “plain clothes”, contacted the accused and left him a message identifying herself and asking him to call her back. He called her back some twenty minutes later at 1:40 p.m. McGale spoke with him for about four minutes and told him that he was going to be arrested. If he turned himself in to the detachment and cooperated, he would be arrested, fingerprinted, and released. The accused asked who the alleged victim was and, after the officer told him, began yelling. The accused seemed agitated and upset, but he said that he would turn himself in before 3:00 p.m.

[4] At 2:29 p.m., McGale was advised by the civilian clerk at the front desk of the detachment that the accused was present. McGale secured the assistance of D/Sgt. Cruikshank because McGale was in plain clothes. Cruikshank’s presence would allow for a search of the accused by a male officer and for officer safety. McGale had the clerk instruct the accused to attend outside the back door of the detachment. McGale walked through the building, and encountered the accused at the back at 2:31, with Cruikshank beside her. Cruikshank was in full police uniform.

[5] From there, the accused was brought into the print room, where he was arrested for the September 2022 offences, which were listed to him, and McGale read to him his rights to counsel and a caution from the standard cards in McGale’s notebook. According to McGale, the accused became upset, but indicated that he understood his Charter rights and the caution and said that he had already called a lawyer. He was then frisk searched by Cruikshank.

[6] In his testimony, Cruikshank confirmed the responses to the rights to counsel and caution from the accused, but he had this process occurring inside the front lobby area of the detachment. Cruikshank then did a pat down search of the accused incident to his arrest in the same location. According to Cruikshank, the officers and the accused then walked outside the detachment together to the sally port at the back of the detachment and entered the print room.

[7] Both officers described McGale taking fingerprints from the accused on a scanner, and the accused’s lack of cooperation. The fingerprinting was made more time consuming by the accused’s refusal to put a gel on his fingers that would assist with the process.

[8] The officers denied raising their voices. McGale had no weapon on her person, and no conductive energy device or baton. Cruikshank denied unholstering his weapon or his baton or his conductive energy device. The accused was never placed in handcuffs. McGale had contact with the accused when she touched his arm to effect the arrest, and manipulated his hands while taking his fingerprints. Cruikshank had no contact with the accused and did not speak to him.

[9] McGale intended to release the accused on an undertaking with conditions appropriate for allegations of intimate partner violence and pointing a firearm. She advised the accused that he would have to sign the undertaking, and when the accused indicated that he would not, she warned him that he would then have to be held for bail. The charges were serious and McGale was concerned for “victim safety.” The accused agreed to sign, although he grumbled and mumbled along the way, and was very upset and belligerent. McGale had the accused initial each condition on the undertaking and then sign the form to indicate that he would abide by the conditions and attend court. Cruikshank observed the accused speaking under his breath throughout the process.

[10] When they got to a condition requiring that the accused not possess any firearms and turn over any firearms to a police officer, McGale testified that the accused stated: “You’re not taking my guns.” He then paused and stated, “Good luck finding them.” In cross-examination, the officer confirmed the accuracy of these “key statements” that she heard. McGale asked, “Are you telling me you have a firearm that you are not willing to turn over?” The accused replied, “I’m not willing to admit to anything.” And, with a gesture at Cruikshank, the accused stated words to the effect that he needed guns to protect his property from people like him. Cruikshank denied that the accused appeared at all confused during the review of the undertaking or McGale’s indication that he would have to sign to be released.

[11] Cruikshank heard the accused claim, “You’ll never find my weapons”, then he denied that he had any, and then said, “yes I do.” Cruikshank also heard the accused comment, while pointing to him, “I need them to protect myself from people like you.”

[12] The accused appeared to understand what was going on, was responsive to questions, and was at the detachment for less than 40 minutes. McGale testified that on leaving, the accused told her, “Fuck you.”

[13] The “lost evidence” issue arose regarding the recording of police interactions with the accused. Both officers testified that the print room was wired for videotaping of events, but without audio. The retention policy on the video from the print room is 365 days, and then the recordings are overwritten. The officers did not turn their minds to preserving the recording because in their view, what took place with the accused was not of any evidentiary value. As McGale explained, there is no sound in print room videos and no charges flowed from that room, so it did not occur to her to ask for the video. No request was made by the defence for any recording in that area until the week of the hearing of the voluntariness/Charter applications, by which time the tape would long since have been overwritten.

[14] For his part, the accused described receiving a call from McGale, explaining that he would be arrested and released on “his own recognizance.” He had to get his nephew to drive him to the detachment, which consumed some forty minutes. When he arrived, he was directed to the rear of the detachment.

[15] The accused testified that he was put under arrest in the print room, with McGale telling him the charges. Cruikshank only came in after the arrest and did not speak at all. The accused refused to put “baby oil” on his hands for the fingerprinting machine because there were inadequate towels in the room. McGale told him that if he cooperated and signed, he would be released. Otherwise, he would go to jail. This was the only threat that he experienced with police. McGale did not raise her voice or swear, but she did direct the accused where to stand and where to sit and what to say. McGale read the terms of release “off the paper.” He denied being asked about speaking with a lawyer or being given a caution. He had not spoken with a lawyer as he went straight to the police station after work. He was not told about duty counsel.

[16] The accused clearly felt aggrieved at the process. “I understood that I was falsely charged with an assault and I had no recourse but to take it.” The accused was upset that McGale was using the testimony of the victim, who was deranged and an habitual liar who could not be trusted. Cruikshank was just standing there with his arms crossed and staring at the accused; “he intimidated me.” He also stated that Cruikshank never said a word or approached him; “he just stood there like a lump on a log.” The accused denied being handcuffed or searched. He claimed that if he had actually been searched, the officer would have found a buck knife that he was carrying. He was very distraught about how unprofessionally it was done, which affected how he reacted with police.

[17] The accused testified that he just signed the paper so he could get out of there, but he did not know what he was signing. He was confused about what was going on, and tired after working a full shift. However, he later testified that the initials and signature on the undertaking were not his; he had signed some other paper. The police were not asked about this when they testified. The accused acknowledged that he was talking mostly to himself during the procedure. With respect to the firearms clause, the accused testified that the officer asked him if he had guns and he said that he “would not surrender my guns to them but would give them to someone with a PAL”. McGale was “not happy” with his response. He would have talked to a lawyer if he could have. He asked if by signing he was making an admission of guilt, and was told no.

[18] The accused said that he was told by police that there were three cameras in the print room, and that his arrest would be filmed and there would be a copy for his lawyer. The officers were also not asked about this in their evidence.

The Law

[19] A confession to a person in authority is presumptively inadmissible, unless the Crown proves beyond a reasonable doubt that the confession was voluntary: R. v. Oickle, 2000 SCC 38, at paras. 20 and 68; R. v. Beaver, 2022 SCC 54, at para. 45. The voluntariness rule serves to protect an accused’s rights without unduly limiting society’s need to investigate and solve crimes. The rule includes both reliability and fairness concerns, depending on the context: R. v. Ordonio, 2025 ONCA 135, at paras. 25-27; R. v. Oickle, at paras. 32-33; R. v. Singh, 2007 SCC 48, at paras. 1, 21, 27-28, 31 and 34; R. v. Tessier, 2022 SCC 35, at para. 70.

[20] In R. v. Oickle, the Supreme Court identified four areas of concern in cases where an accused has provided a statement to the police: (1) where offers or inducements have been made to obtain the statement; (2) where the police have engaged in oppressive conduct; (3) where an accused lacks an operating mind; and (4) where the police have resorted to tricks in order to obtain a statement. To these four the Supreme Court of Canada has also added the absence or presence of a police caution as an issue for consideration: R. v. Tessier, at paras. 78-79; R. v. Beaver, at para. 51. Ultimately the court 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 whether to speak to a person in authority or not: R. v. Ordonio, at paras. 32-33; R. v. Tessier, at para. 68.

[21] Some kind of inducement will often be offered by authorities. An inducement becomes improper when the inducement, standing alone or in combination with other factors, is strong enough to raise a reasonable doubt about whether the will of the subject has been overborne and rendered the statement involuntary: R. v. Oickle, at para. 57.

[22] Oppressive conduct by the police may result in a statement that is unreliable. Examples of oppressive circumstances recognized by the courts include depriving the suspect of food, water, clothing, sleep or medical attention. It includes denying access to counsel and excessively aggressive, intimidating questioning for a prolonged period of time, and the use of nonexistent evidence: R. v. Ordonio, at para. 31; R. v. Oickle, at para. 60.

[23] When assessing whether an accused has an operating mind, the court must be satisfied beyond a reasonable doubt that the accused possessed the limited cognitive ability to understand what they were saying and to comprehend that the evidence might be used in criminal proceedings: R. v. Whittle, [1994] 2 S.C.R. 914 at p. 939; R. v. Tessier, at para. 8. The issue must be considered within the context of all the circumstances surrounding the taking of the statement: R. v. Oickle, at para. 63.

[24] Police use of trickery is a distinct inquiry which looks towards maintaining the integrity of the criminal justice system. The police are entitled to use tactics, including trickery, in order to investigate crime. What the court is concerned with is police conduct that is so appalling as to shock the community: R. v. Oickle, at paras. 65-67.

[25] The confessions rule protects the right to silence. While a proper caution will not guarantee that a statement is voluntary, it may assist in demonstrating that the accused made a free choice to speak to the authorities: R. v. Tessier, at para. 5. A police caution informs a suspect of their right to silence and that they are not obliged to say anything unless they wish to do so, but whatever they do say may be given in evidence: R. v. Singh, at para. 31; R. v. Beaver, at para. 59. In circumstances where a police interview involves a detained suspect, who is vulnerable and facing legal jeopardy, fairness requires that a caution be provided: R. v. Tessier, at paras. 78-79.

[26] Section 10(b) of the Charter guarantees not merely that an accused person be provided with information about counsel and the availability of duty counsel, but also a reasonable opportunity to consult counsel in a meaningful way, unless the accused has unequivocally waived that right: R. v. Suberu, 2009 SCC 33, at paras. 37-38. The duty to facilitate further consultation with counsel revives whenever new jeopardy arises or the police knew or should know that further advice is required: R. v. Sinclair, 2010 SCC 35, at paras. 43-48; R. v. Lafrance, 2022 SCC 32, at paras. 68-79.

[27] Section 7 of the Charter protects an accused’s right to silence. There can be a breach of the right to silence by the use of subterfuge that deprives the accused of the choice whether to speak to police by actively eliciting information: R. v. Liew, at paras. 38-45.

Analysis

[28] In the circumstances of this case, on the Crown’s application I must determine whether I am satisfied beyond a reasonable doubt what, if anything, was said by the accused and whether what was said was voluntary.

[29] On the accused’s Charter application, I must determine whether I am satisfied that the police breached the accused’s s. 10(b) Charter rights by not providing him with his rights to counsel. It appears from the accused’s materials that the s. 7 issue relates to the police unfairly depriving the accused of his right to silence in the procedure of his release.

[30] These determinations must begin with assessments of the credibility and reliability of the witnesses.

[31] I begin with D/C McGale. I was impressed with that officer’s evidence. She was clear, organized, and careful in her presentation. She provided a context for what she did in her dealings with the accused and took sensible steps to seek assistance from D/Sgt. Cruikshank. Her evidence was consistent. She observed the accused to have been agitated and upset on the phone, and that emotional state continued when he was placed under arrest at the detachment. She observed him to mutter constantly throughout her dealings with him.

[32] The officer explained the procedures that were undertaken, and explained why she felt she could release the accused on appropriate conditions on an undertaking and not hold him for bail in the circumstances of these allegations of intimate partner violence. When the accused indicated a refusal to sign the undertaking, he was warned that he would be held for bail. He decided that he would cooperate with the process, but he remained belligerent and unhappy.

[33] In cross-examination, McGale answered questions easily and without hesitation. She explained that she named the alleged victim for the accused on the phone because the name was on the undertaking and he had asked. She made her notes throughout the day. She had the accused directed to the rear of the detachment because he appeared to be cooperating and that was easier than taking him through the detachment. Her time stamps, including those for arrest, right to counsel, and caution, were written in her notes and based on the time on her watch. She did not do her notes in speaking with Cruikshank.

[34] McGale was confronted with the accused’s claim that she did not read him the rights to counsel or caution and responded clearly that she had. In fact, she added that she wrote in her notes that the rights to counsel were provided “FIC”, her abbreviation to express that they were provided from her “force issued card.”

[35] There were problems in D/Sgt. Cruikshank’s notes and his recollection of events. His notes had the accused turn himself in at 2:20, but Cruikshank later indicated that he was unsure if the time was “2:20” or “2:30”, because he could not read the number in his notes. And that error added “13 lost minutes” in the print room. I am satisfied that the time was 2:30. Cruikshank explained that his notes would be more carefully kept if this had been his own case, but he was just present to assist McGale. Ultimately, he had to admit that there were things that he did not recall. While Cruikshank had admitted to some inaccuracy in his evidence, he was unshaken about important and obvious issues, including that the accused was read the right to counsel and caution, and the accused’s responses and utterances.

[36] Cruikshank had the process of arrest, search, right to counsel and caution go on in the lobby area of the detachment, which I find to be inaccurate. McGale’s explanation for events – that this all took place in the print room – makes much more sense. Indeed, Cruikshank has the officers escorting the accused outside the detachment to the rear, with no time attached to that movement, while McGale provides a sensible explanation for having the accused attend there prior to arrest while the officers went through the detachment. Cruikshank’s times were based on a computer dispatch time and estimates thereafter, rather than looking at his own watch. Cruikshank was just wrong with respect to the location of arrest.

[37] Cruikshank’s recollection otherwise aligned closely with McGale’s, though I accept their evidence that they did not talk about their notes together. The accused was upset and belligerent. He did not cooperate fully with the fingerprinting process. When asked in cross-examination if he was present at the arrest of the accused as a witness for McGale, Cruikshank answered that it was “more for officer safety.” The accused “spoke under his breath” throughout the process. Cruikshank heard utterances very similar to what McGale heard when she and the accused got to the firearms condition on the undertaking.

[38] The accused’s evidence was severely affected by his animus against the police and against this case. The accused testified in cross-examination that he has been victimized by the OPP who have ganged up on him and his family. He claimed that McGale based her decision to charge on the accused’s name alone. He saw her look at his police records. He was not happy to be called away from work to have false charges put on him. The complainant was unreliable. He viewed Cruikshank as standing by “like a lump on a log,” but somehow found his presence “intimidating.” He told McGale, “Fuck you” as he was leaving.

[39] The accused offered into evidence other things that the officers were never questioned about. The accused claimed that he did not sign the undertaking but signed some other document. Cruikshank testified that only the undertaking, and not the appearance notice on which the accused was released, required a signature. The accused denied that McGale ever put the undertaking in front of him at all. “It was definitely the cops that signed it.” He claimed that he had been promised by the police a copy of the video of his arrest. In the face of the clear and impartial evidence given by police, I reject these claims by the accused, whom I find to be a very unreliable reporter of events at the detachment.

[40] I find that the arrest took place as described by D/C McGale, whose evidence I find to be credible and reliable. While D/Sgt. Cruikshank’s recollection of times was haphazard and his testimony about the arrest taking place in the lobby of the detachment is plainly wrong, I accept his evidence about the procedure that was followed: the arrest, the search, the rights to counsel and caution, and the accused’s answers to questions about those issues. I find that the evidence of Cruikshank also corroborates McGale with respect to the accused’s remarks when McGale read him the firearms condition of the undertaking, and I accept that those remarks were made.

[41] I find that I am unable to rely on the accused’s evidence for proof that police did not read him his right to counsel or caution him. I reject his claim that he would have liked to contact a lawyer and felt helpless in police custody without one. He certainly never asked to do so after being read his rights. I do not accept that the accused was confused about anything. He was belligerent, but understood what was going on, and took part in it to obtain his release. The process was simple and straightforward. The initials and signature on the undertaking were made by the accused. Whether the accused actually spoke with a lawyer does not affect my belief that he told the police that he had, and unequivocally waived his right to do so at the time of his arrest and release. He likely just wanted to get out of police presence faster and knew that he would not be formally questioned in any event. I reject the accused’s evidence that he had a buck knife on his person that the police did not find.

[42] The accused argues that by making his release contingent on his signing the undertaking, McGale offered him an inducement by way of a threat to keep him in custody. This inducement was “active when the firearms clause was read, and the utterance elicited.” Although it is not clearly spelled out in his materials, I presume that the accused is also arguing here that his right to silence in Charter s. 7 was also thereby breached, as the police surreptitiously in this way caused the accused to make the utterance about firearms whose admissibility is opposed.

[43] I reject the accused’s claim that there was a threat here within the meaning of the voluntariness doctrine. The police merely explained to him the necessary result if he did not agree to conditions of release: bail court. I find that the accused was properly cautioned by McGale about the use of any utterances that he made. He nevertheless continued to speak under his breath while McGale reviewed the undertaking with him.

[44] What the accused said when the firearms condition was read to him was freely spoken and said out of spite to the police and the procedures that he despised: “You’re not taking my guns,” and “Good luck finding them.” He pointed to Cruikshank for a disparaging remark about why he needed firearms. When McGale asked a follow-up question about guns, the accused, apprised and aware of his rights, replied “I’m not willing to admit to anything.” The accused was already being charged with a gun offence, so his answers did not increase or alter his jeopardy or require that he be re-advised of his rights to counsel.

[45] The accused’s comments about guns were not in any way motivated or “activated” by the possibility of going into custody if he did not sign the undertaking. He was not obliged to say anything; he just had to initial the conditions and sign the undertaking. In the context of the evidence and circumstances in this case, I find that the accused’s remarks concerning guns were spontaneously offered, were unprompted by police questioning, and represented the exercise of the accused’s free will: see, e.g., R. v. Veltman, 2024 ONSC 2276, at para. 97; R. v. Hikoalok, 2023 ONSC 708, at paras. 51-54.

[46] Nor, for that matter did McGale’s praiseworthy conduct in going through all the release conditions with the accused somehow trick him into giving up his right to silence. She was not engaging, as the accused would have it, in interrogation by stealth. She just wanted to make sure that the accused understood the conditions of release in the context of a serious allegation of intimate partner violence, and I am satisfied that she would have conducted herself the same way in any such investigation.

[47] The accused also argues that the situation was oppressive and he was psychologically coerced and confused into making his utterance by the looming presence of two armed police officers and the legalistic language of release. I disagree with this characterization.

[48] Cruikshank, the only armed officer in the room, never drew a weapon or even spoke. He conducted a brief pat-down search. McGale never raised her voice or did anything but touch the accused to signal arrest and manipulate his hands for fingerprinting. The accused felt independent enough to refuse to apply an enhancing cream to his fingers to facilitate that process. In his evidence, the accused claims to have stated to the officers that he would prefer to give his firearms to someone with a possession and acquisition license rather than police. And on the evidence of the officers, the accused openly insulted Cruikshank during the release as the reason for needing guns in the first place, and McGale as he was leaving. This was not a person who felt in any way oppressed by the circumstances in which he found himself or intimidated by the officers.

[49] The accused argues that, given fatigue and “divided attention” and the pressure of imminent release, his mind was not functioning freely, voluntarily, or with an appreciation of the consequences of what he was saying. I disagree. What motivated the accused was anger and petulance. The allegations, made by a complainant he despised, were outrageous. Moreover, the police only believed her because they had it in for him and his family, and here was a circumstance they could exploit. His focus remained on being defiant and oppositional to the very end, when he offered a unique parting farewell remark to McGale.

Conclusion

[50] I offer these conclusions subject to the accused’s arguments about “lost evidence”, when and if that application is brought.

[51] I find that the accused has not satisfied me that he was not properly provided his right to counsel, or that his right to silence was breached by police. He was provided his right to counsel and unequivocally waived the exercise of that right. He chose to say what he said in the print room and his right to silence was not breached. His Charter application is dismissed.

[52] I am also satisfied, beyond a reasonable doubt, that the accused spoke the words attributed to him by McGale and Cruikshank about firearms and that those utterances were made freely and voluntarily. Even were I to find that McGale offered the accused a generalized “inducement” or “threat” to hold him in custody if he did not sign the undertaking, the inducement did not operate to deprive the accused of the ability to choose to speak or not and did not cause the accused to make the utterances in question. The accused’s mind was operating, though he was angry, and no oppression in the circumstances of his dealings with police took away his ability to choose to speak or not. There was no police trickery involved in getting the accused to make the utterances attributed to him.

[53] Accordingly, the accused’s utterances in the print room in relation to the firearms condition of his undertaking may be used by the Crown for all purposes.

Released: July 17, 2025
A.D. Kurke