Ontario Superior Court of Justice

Court File No.: CR-23-132-00
Date: 2025-01-22

Between:
His Majesty the King
S. McNaughton and S. Crowe, for the Crown

and
Daniel Keefe
G. Joseph and M. Iwasiw, for the Accused

Heard: December 9, 2024, at Thunder Bay, Ontario
Justice: S.J. Wojciechowski

Reasons on Application

Introduction

[1] The focus of this application is a conversation between an investigating police officer, Detective Constable Lucas Bagley, and the accused, Daniel Keefe.

[2] During an interview that occurred while in police custody, Daniel Keefe provided Detective Constable Lucas Bagley with details of his interaction with Aiden Cunningham, which left Mr. Cunningham dead and Mr. Keefe charged with second degree murder. This conversation occurred after the following exchange:

Can you tell me basically what happened?
Can I wait for my lawyer? I was told I was supposed to wait for my lawyer.
The lawyer is not going to come and sit here, you just talked to him on the phone.

[3] This application addresses whether the discussion that followed this exchange violated section 10(b) of the Charter, and whether Mr. Keefe’s statement to the police was voluntary.

Background

[4] On June 25, 2022, Daniel Keefe was living in a residence located at 113 Crown Street, Thunder Bay, with his mother and his uncle. That afternoon, while mother and uncle were out, Aiden Cunningham came over. The pair smoked weed and played video games.

[5] Around 5:00 p.m., Austin Lemay came to Daniel Keefe’s residence after he was invited by a text from Aiden Cunningham. Shortly after Austin Lemay arrived, Daniel Keefe asked both him and Aiden Cunningham to leave. Daniel Keefe had received his own text from Aiden Cunningham’s ex-girlfriend, which suggested to Daniel Keefe that he was about to be assaulted by Aiden Cunningham and Austin Lemay. In order to avoid any potential confrontation, Daniel Keefe told the other two that he was not allowed to have guests in the house, and since his mother was returning shortly, they had to leave.

[6] After going downstairs towards the front door, and before Aiden Cunningham and Austin Lemay left, a fight broke out between Aiden Cunningham and Daniel Keefe. As a result of the fight, Aiden Cunningham was fatally stabbed. After fleeing the Crown Street residence with Austin Lemay, Aiden Cunningham collapsed on the street and died shortly thereafter.

[7] After the altercation between Daniel Keefe and Aiden Cunningham, Daniel Keefe closed and locked his front door, went upstairs, and called 911.

[8] The 911 call lasted approximately thirty minutes, during which he answered questions about the altercation and what had happened. The 911 operator kept Daniel Keefe on the phone for approximately twenty-two minutes, and the call ended when the police attended at the residence.

[9] When the police entered the Crown Street residence, Constable Pietrobelli arrested Daniel Keefe for aggravated assault. She read him his rights and cautioned Daniel Keefe. At this time, because he was exhibiting symptoms of distress which were later identified to be an anxiety attack, he was brought to the emergency department of the Thunder Bay Regional Health Sciences Centre (the “TBRHSC”).

[10] There was a conversation between Constable Pietrobelli and Daniel Keefe as they rode together in the ambulance. While counsel for Mr. Keefe raised issues relating to the admissibility of the contents of this conversation, Mr. McNaughton on behalf of the Provincial Crown confirmed that it was not the Crown’s intention to lead this evidence at trial nor rely on it in any way. As such, this evidence is no longer in issue.

[11] After Daniel Keefe was seen and treated at the TBRHSC, he was brought to the Thunder Bay Police Service building located at 1200 Balmoral Avenue, Thunder Bay. By this time, which was between 8:30 p.m. and 9:00 p.m. that same evening, the police knew that Aiden Cunningham had died. As such, Daniel Keefe was re-arrested, this time for second degree murder, and re-read his rights as well as cautioned a second time.

[12] At the time, Daniel Keefe was 18 years old. He had never been arrested, nor charged with any criminal offences in the past, and had never attended the Thunder Bay Police Services building as an accused or person of interest.

[13] Mr. Keefe told the police that he wanted to speak to a lawyer, and he was permitted access to a private room in which confidential conversations could occur. While in the room, he spoke with Richard Garrett, a lawyer arranged by Mr. Keefe’s family. The evidence within this application does not provide any details regarding the contents of this conversation, and the duration of the discussion is not in evidence.

[14] After speaking to Richard Garrett, Daniel Keefe was lodged in a cell at the police station.

[15] The next morning, shortly after 11:00 a.m., Daniel Keefe was brought into an interview room where he was questioned by Detective Constable Lucas Bagley. Before doing so, Detective Constable Bagley provided Daniel Keefe with a secondary caution.

[16] The interview room was described as a hard interview room, in that it was a stark room with two chairs on either side of a small table. Nothing in the environment of the interview room was designed to make those present feel comfortable or at ease. There was also a camera mounted on the wall that was visible and obvious to anyone in the room.

[17] Prior to the discussion that occurred following the secondary caution and the exchange set out at the beginning of these reasons regarding legal counsel, Detective Constable Bagley did not tell Daniel Keefe that the discussion would be recorded by audio and by video. Daniel Keefe was not re-advised of his right to remain silent. Daniel Keefe was also not told that anything he discussed in that room could be used in court as part of the legal proceeding addressing the second degree murder charge. Finally, Daniel Keefe did not know that a second officer, Detective Constable Ryan Wasilewski, was watching the interview as it unfolded.

[18] This meeting was video and audio recorded, and while Detective Constable Bagley was not in the room for the entire time, the video recording from start to finish lasts almost forty-five minutes.

[19] The information provided by Daniel Keefe to Detective Constable Bagley detailed the events of June 25, 2022, immediately before, during, and after the altercation between Daniel Keefe and Aiden Cunningham. Daniel Keefe also discussed past altercations with Aiden Cunningham, and the fact that Daniel Keefe did not know how to fight nor defend himself.

Position of Daniel Keefe

[20] On behalf of his client, Mr. Joseph made several submissions addressing the absence of voluntariness in the statement provided during the interview with Detective Constable Bagley. In addition, he maintained that Daniel Keefe’s section 10(b) Charter rights were breached, and, as such, the evidence obtained during the interview should be inadmissible at trial.

[21] The goal of section 10(b) is to ensure an accused understands their rights, including the right to remain silent, and how to exercise these rights. As such, in the face of circumstances that suggest an accused does not understand his or her right to counsel, it is up to the police to offer an accused a second opportunity to consult with counsel to ensure he or she has sufficient advice on whether to cooperate with a police investigation.

[22] With respect to Daniel Keefe, while provided with the opportunity to consult legal counsel the evening before his interview, his comments to Detective Constable Bagley suggest that any advice received during that consultation was not understood. In addition, Daniel Keefe’s comments should have been assessed by Detective Constable Bagley in light of Mr. Keefe’s young age and inexperience with the criminal justice system. Mr. Keefe’s comments supported an inference that he did not fully understand his section 7 rights, and he should have been afforded a second opportunity to obtain legal advice.

[23] In addressing the voluntariness of Daniel Keefe’s video statement, factors undermining the Crown’s position is the length of time between speaking to legal counsel and the interview, the physical and mental distress experienced by Daniel Keefe at the time, the little to no nourishment he received, unadministered prescription medication, his anxiety, and the lack of sleep. In addition, the failure to advise Daniel Keefe that his interview was being audio and video recorded further calls into question the willingness of providing his statement.

Position of the Crown

[24] While he only had one opportunity to consult with counsel, Daniel Keefe was advised of his section 10(b) rights on two occasions on June 25, 2022, once when he was arrested for aggravated assault, and a second time when he was charged with second degree murder.

[25] He spoke to a lawyer after he was charged with second degree murder, and there was no change of circumstances between the time he consulted with a lawyer and the time he was interviewed by Detective Constable Bagley.

[26] The initial exchange before the interview of June 26, 2022, including the questions of Daniel Keefe with respect to a lawyer, do not give rise to the suggestion that he did not fully appreciate his right to remain silent.

[27] In any event, if there was a breach of section 10(b), it was not serious, and Daniel Keefe’s statement of June 26, 2022, should be admissible as evidence in its entirety.

[28] With respect to the voluntariness of his statements during the Interview, the conditions surrounding the Interview were not oppressive and no inducements were provided in exchange for Daniel Keefe’s statement. As such, there is no reason to doubt that he understood what he was doing when participating in the Interview.

The Law

[29] A person who does not understand his or her right cannot be expected to assert it: see R. v. Evans, [1991] 1 S.C.R. 869, para. 39; R. v. Devries, 2009 ONCA 477, para. 23.

[30] Effective assistance of counsel protects an individual’s fair trial rights. However, that is not imported into section 10(b). The law does not recognize a right to effective legal assistance under section 10(b). Section 10(b) does not mandate adequate legal advice, but it does require the police to act on tangible indicators that the advice was inadequate: see R. v. Willier, 2010 SCC 37, para. 41. Accordingly, there is no obligation on the police to confirm nor ensure that a detainee received effective legal assistance.

[31] The duties of the police to renew a description of a person’s section 10(b) rights occur when it can no longer be assumed that the detainee received legal advice relative to his or her right to choose whether to cooperate with the police investigation: see Sinclair, at paras. 2, 32, 48, and 51. To trigger a further opportunity for a detainee to consult with legal counsel, a change in circumstances must be “objectively observable”: see R. v. Dussault, 2022 SCC 16, para. 34.

[32] A change in circumstances can arise in several ways.

[33] If the investigation involves non-routine procedures, something which could not have reasonably fallen within the expectation of the advising lawyer at the time of the first consult, then there is a need to offer a second opportunity to re-consult counsel.

[34] An example of this is when, during an interview, the detainee is asked to provide a password to unlock a cellphone: see R. v. Azonwanna, 2020 ONSC 5416, paras. 156–164.

[35] If there is a change in jeopardy, such that the investigation leads to new and more serious charges, then a duty to renew the person’s section 10(b) rights exists. This is what occurred with Mr. Keefe when it was discovered that Mr. Cunningham had died from his injuries and new charges were laid.

[36] A third change in circumstance exists if there is a reason to question the detainee’s understanding of his or her rights. It is this third category which Mr. Keefe alleges is applicable in his circumstances.

[37] A detainee must say something which indicates that he or she may not have understood the initial legal advice provided. There must be objective indicators during detention that additional legal consultation is required in order that the detainee can make a meaningful and informed choice on whether to cooperate with the police: see Sinclair, at para. 55; R. v. Tahmasebi, 2020 ONCA 47, para. 37.

[38] While police must be alive to any indication that the detainee misunderstood the scope of their right to counsel, this is not about the detainee being confused, but rather that the police having reason to believe the person got poor advice: see R. v. Lafrance, 2022 SCC 32, para. 86.

[39] Examples of this could be where the detainee believes that he or she is not entitled to advice with counsel in person, or that the accused thinks he or she is not permitted to have his or her counsel present during questioning by the police. Another example would be if the accused believes that he or she is not entitled to consult with a private lawyer after consulting with duty counsel.

[40] If the detainee indicates that he or she subscribes to one of these ill-founded legal propositions, then the police must offer the detainee another opportunity to consult with counsel: see Lafrance, at paras. 84–86.

[41] The right to a re-consultation with legal counsel is triggered when there are objective indicators that the detainee does not understand the drawbacks of cooperating with the police and the strategies to resist cooperation: see Lafrance, at para. 75. Arguably, simply giving a statement to the police might suggest one did not understand his or her rights. But this is not enough, and demonstrating hesitancy or concern is insufficient to question the adequacy of initial legal advice: see Sinclair, at paras. 67-71.

[42] A fourth consideration, which Mr. Joseph submitted should go into the analysis of this case, is whether the person being detained has vulnerable characteristics such as age, gender, race, level of sophistication, cognitive capacity, or language comprehension.

[43] In their book Detention, Arrest, and the Right to Counsel (Toronto: Emond, 2025), authors Davin Michael Garg and Anil Kapoor discuss these vulnerabilities at pp. 418-420.

[44] Initially, they recognize that the jurisprudence has not focused on specific characteristics when conducting a section 10(b) analysis because these are “baked into the section 10(b) framework”. The vulnerability every detainee faces when confronted with the possibility of their liberty being deprived through actions of the state is the very basis of obligations imposed upon the police by the operation of section 10(b):

It is the detainee’s inherent vulnerability that underpins the police obligations to inform and implement the right to counsel immediately, to facilitate access to counsel, to ensure that a detainee does not easily waive their right to counsel, and to offer re-consultation whenever there is a reason to believe that the legal advice was inadequate.

[45] Garg and Kapoor also point out the challenge of maintaining the balance between the rights of Canadians who are detained with the legitimate societal interest in supporting the efforts of the police to investigate crimes. The courts should not interpret section 10(b) obligations on the police so as to unreasonably impede their ability to properly conduct their investigations. There are already other principles established by the common law and other Charter sections – consider the protections and rights afforded by section 7 and the voluntary confessions rule – which should be considered when deciding whether an individual’s vulnerabilities play into the section 10(b) analysis.

[46] By operation of section 10(b), detainees are to be provided with access to legal advice relevant to their situation: see Sinclair, at para. 32. This legal advice should ideally be provided to individuals in a manner which they are able to comprehend: see Lafrance, at para. 76. Where objectively observable developments support a possibility that the initial legal advice was inadequate, a detainee’s vulnerabilities should then also be considered in determining an obligation to provide an individual with an opportunity to revisit his or her section 10(b) rights through a re-consultation with his or her counsel.

Voluntariness

[47] To establish the voluntariness of a statement, the Crown must satisfy the court that the four requirements set out by the Supreme Court in R. v. Oickle, 2000 SCC 38 have been met:

a) the absence of any threats or promises made by the person receiving the statement;
b) the lack of an oppressive atmosphere;
c) that the accused had an operating mind; and
d) the lack of any police trickery in inducing the statement.

[48] Inducements that result in a confession are only problematic if they raise reasonable doubt on whether the detainee’s will has been overborne: see Oickle, at para. 57.

[49] No one wants to be detained in police custody. Detention in and of itself is not oppressive conduct contemplated by Oickle. Oppression consists of inhumane conditions such as deprivation of food, clothing, sleep, or medical attention: see Oickle, at para. 60.

[50] While there is interplay between section 10(b) and the right to remain silent inherent in voluntariness analysis, “[t]he fact that the police complied with section 10(b) does not mean that a statement is voluntary under the confessions rule. Conversely, the fact that a statement is made voluntarily does not rule out a breach of section 10(b)”: see Sinclair, at para. 29.

[51] The Supreme Court decision in Oickle also provides the following guidance in considering the application of the confessions rule:

[47] The common law confessions rule is well-suited to protect against false confessions. While its overriding concern is with voluntariness, this concept overlaps with reliability. A confession that is not voluntary will often (though not always) be unreliable. The application of the rule will be necessity be contextual . . . . A trial judge should therefore consider all the relevant factors when reviewing a confession.

[63] . . . the operating mind requirement “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment”.

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

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

[71] . . . the analysis under the confessions rule must be a contextual one . . . . [and] a court should strive to understand the circumstances surrounding the confession and ask if it give rise to a reasonable doubt as to the confession’s voluntariness, taking into account all the aspects of the rule discussed above.

[52] Voluntariness is concerned with the protection of the accused’s rights and ensuring a fair adjudication process. In addressing these issues, the overall context and surrounding circumstances must be considered.

[53] Voluntariness is not only measured by the absence of threats, violence, or inducements, but also the absence of the necessary mental element of deciding between the alternatives of providing or not providing a statement: see Oickle, at para. 25.

[54] The operating mind doctrine is further explained in Oickle, at para. 26:

[T]his aspect of the confessions rule “persists as part of our fundamental notion of procedural fairness”. This approach is most evident in the so-called “operating mind” doctrine, developed by [the Supreme Court . . . . in making] “a further investigation of whether the statements were freely and voluntarily made even if no hope of advantage or fear of prejudice could be found” . . . . The “operating mind” doctrine dispelled once and for all the notion that the confessions rule is concerned solely with whether or not the confession was induced by any threats or promises.

Onus Considerations

[55] With respect to the issue of voluntariness, the onus is on the Crown to prove that Mr. Keefe’s statement was voluntary beyond a reasonable doubt.

[56] The applicant, on the other hand, has the onus when considering the alleged breach of section 10(b), and in this regard, Mr. Keefe must satisfy this onus on a balance of probabilities: see Oickle, at para. 30.

Decision

[57] The evidence supports a finding that, upon being charged with second degree murder on the evening of June 25, 2022, Mr. Keefe was advised of his section 10(b) rights.

[58] Mr. Keefe seems to have understood whatever he was told by the police concerning his section 10(b) rights, as he consulted with legal counsel that same evening.

[59] The issue raised by Mr. Keefe in this application is whether he understood whatever advice he received from his legal counsel and, if not, whether this should have been apparent to the police.

[60] Additionally, if the police knew or ought to have known that Mr. Keefe did not understand the advice he had received, should Mr. Keefe have been reminded of his section 10(b) rights and provided with another opportunity to consult with a lawyer before the interview was conducted by Detective Constable Bagley?

[61] Finally, this court is asked to determine whether Mr. Keefe’s statement to Detective Constable Bagley was made voluntarily.

[62] Section 10(b) affords an accused or a detainee the right to consult with a lawyer and obtain legal advice before he or she is interviewed by the police. Section 10(b) does not guarantee that the legal advice obtained is sound, correct, or relevant to the particular circumstances of the accused or detainee. Once access to legal advice has been provided, absent indicators to the contrary, it is presumed that this advice was provided by counsel competent to address the issues faced by an accused.

[63] A salient part of any consultation with legal counsel should be an explanation of an accused’s section 7 rights. An accused does not have to tell the police anything, and an accused is not obligated to provide evidence in response to police questions. This does not mean the police cannot ask questions or attempt to illicit evidence, even in the face of an accused’s assertions that there is nothing to say. What is important is that an accused understands that there is no need to speak to the police, and that he or she has the right to remain silent when faced with questions from the police. Understanding this right empowers the accused to decide whether to say anything, and levels the power imbalance inherent in a situation when an accused is detained or in custody.

[64] As such, after an accused consults with his or her lawyer, the police can assume that questions may be put to the accused in an effort to obtain evidence relevant to the circumstances of the offence.

[65] The caveat to the ability of the police to proceed with questioning is whether a change of circumstances occurred between the legal advice being provided and the commencement of questioning.

[66] The change of circumstances hindering the right of the police to pursue questioning must be one that could reasonably render the previous legal advice obtained as irrelevant or incomplete.

[67] An obvious situation when this would occur is what happened with Mr. Keefe. He was originally arrested for assault, which was before the death of Aiden Cunningham was known. At that time, he was provided with his section 10(b) rights, although, due to his attendance at TBRHSC for medical treatment immediately after he was detained, he did not have a chance to exercise his right to speak to a lawyer. However, when the police found out that Mr. Cunningham had died, Mr. Keefe was charged with second degree murder and again provided with his section 10(b) rights.

[68] Had Mr. Keefe obtained legal advice with respect to the aggravated assault charge, this would not be sufficient to address the situation where he was charged with second degree murder. Given this change of circumstance, or change in jeopardy, he was entitled to obtain legal advice to specifically address the fact that he was charged with second degree murder.

[69] If an accused was provided with an opportunity to contact a lawyer in order to obtain advice to a current charge, but subsequently advised the police that no advice or inadequate advice was provided, then this constitutes another change in circumstances.

[70] If the accused makes a call but does not get to speak to a lawyer, and provides this information to the police, no questioning can occur until the section 10(b) rights have been fulfilled. If contact with a lawyer is made, but the accused tells the police the discussion was with a real estate lawyer who knew nothing about criminal law, then again, no questioning can occur. Further, if contact with a criminal lawyer is facilitated and occurs, but the accused’s comments following that contact indicate that the accused did not understand the advice provided, or that the advice was wrong, again, questioning must not proceed.

[71] In these circumstances, which rebut the inference that the accused was provided with appropriate legal advice to level the playing field and equip the accused with the power to decide if he or she will co-operate with the police, the police must offer the accused access to his or her section 10(b) rights a second time before proceeding with questioning.

[72] As the caselaw suggests, the entire context must be considered when assessing the right of the police to conduct an interview of an accused.

[73] The context which is relevant in this case includes the following:

a) Mr. Keefe was 18 years old at the time;
b) Mr. Keefe had never been involved with the police before, had never been arrested in the past, had never been detained and lodged in police cells, and had never had involvement with the justice system;
c) Mr. Keefe was involved in a violent incident in which his actions resulted in the death of another human being, Aiden Cunningham, with whom he was well acquainted;
d) Mr. Keefe called 911 immediately after the altercation with Aiden Cunningham, and was then arrested within a very short time period following the 911 call;
e) During the 911 call, based upon the exchange with the 911 operator, it was clear that Mr. Keefe was experiencing an anxiety attack;
f) After being arrested and charged with aggravated assault, he required medical attention due to his anxiety, had not been taking his prescribed medications, and was diagnosed by TBRHSC as suffering from a panic attack;
g) After his attendance at TBRHSC, he was brought to the police station, charged with second degree murder, permitted an opportunity to speak to a lawyer at 8:52 p.m., and then lodged in the cells at the police station where he remained until he was interviewed approximately fourteen hours later;
h) While detained, he did not have access to his anxiety medication;
i) While detained, his clothes were confiscated as per the policy of the police, and he was provided with a jump suit and a blanket which he says left him so cold he could not sleep, in part due to the fact that the “beds” at the police station consist of cement slabs without a mattress;
j) Knowing these circumstances, the police interviewed him commencing at 11:24 a.m. the following day;
k) The interview was conducted in a hard interview room, one not designed to provide any comfort to the person being interviewed;
l) The interview room had a camera mounted on the wall, but no one told Mr. Keefe that it would be recording video and audio during the interview;
m) No one told Mr. Keefe that in addition to the person conducting his interview, another officer was watching the interview through the video feed provided by the camera in order to support and assist the officer conducting the interview;
n) No one told Mr. Keefe that anything he said during the interview would be recorded so that it could be used as evidence in a court of law;
o) Mr. Keefe was provided with a secondary caution at the outset of the interview, advising him that if he had spoken to any police officer or to anyone with authority or if any such person had spoken to him in connection with this matter, these conversations should not influence Mr. Keefe into making any statement;
p) At the outset of the interview, Mr. Keefe asked the officer if he could wait until his lawyer was present because Mr. Keefe revealed the advice he had been given was that he was supposed to wait for his lawyer before speaking to the officer. In response, Detective Constable Bagley told Mr. Keefe that his lawyer was not coming because he had just spoken to his lawyer on the phone;
q) In fact, Mr. Keefe had not just spoken to his lawyer, and instead had spoken to him approximately 14 sleepless hours before the interview; and
r) The interview proceeded without any police trickery, without any inducements, without any aggressive questioning tactics, no coercive behaviour, and all times Detective Constable Bagley conducted his questioning in a calm, patient and professional manner.

[74] In light of this context, how should the initial exchange between Mr. Keefe and Detective Constable Bagley be interpreted, this being the information that Mr. Keefe was told he was to wait for his lawyer, and then being advised in response that would not happen because he had just spoken to him on the phone?

[75] Was there a change in circumstances that should have resulted in Detective Constable Bagley providing Mr. Keefe a second opportunity to speak again to a lawyer? Can the initial comments of Mr. Keefe be said to have alerted Detective Constable Bagley to the fact that he did not understand the advice he was given by his lawyer?

[76] Mr. Keefe does not specifically state that he understood he did not have to speak to the police until his lawyer was present, or that he knew he did not have to say anything at all in response to any police questioning. Instead, he asks if the interview could be delayed pending the arrival of his lawyer and adds that he was told to wait for his lawyer before speaking.

[77] I take these comments of Mr. Keefe to support his understanding that he was told that he did not have to talk to the police until his lawyer was present. This presumes his section 7 rights were discussed with his lawyer, and that Mr. Keefe correctly understood his lawyer to tell him not to say anything until his lawyer was in the room where the interview was undertaken.

[78] It may also be the case that no such discussion occurred, and that Mr. Keefe did not completely appreciate his right to remain silent. However, even considering the contextual factors outlined above, I do not find that the comments of Mr. Keefe should have triggered an awareness in Detective Constable Bagley that Mr. Keefe probably did not understand the legal advice which he obtained when he spoke to his legal counsel.

[79] The exchange does not jump out as being one which indicates one way or another whether Mr. Keefe was provided with sound advice or misunderstood the advice he was provided. It could be interpreted as being consistent with an understanding of section 7 rights in that Mr. Keefe said he did not want to say anything until his lawyer was present.

[80] Accordingly, considering the context of the situation, I find that, on a balance of probabilities, there was no change in circumstances sufficient to warrant Detective Constable Bagley reiterating Mr. Keefe’s section 10(b) rights and providing a second opportunity for Mr. Keefe to consult with legal counsel.

[81] The voluntariness of the statement, on the other hand, is a different situation, one which is to be considered in light of the comments made – and not made – by Detective Constable Bagley.

[82] Detective Constable Bagley was aware of the factors making Mr. Keefe vulnerable, including the fact that he was going to be questioning a young man who was stressed, anxious, frightened by the situation he was in, tired, cold, and unmedicated.

[83] Given the lack of exposure to the criminal justice system, putting Mr. Keefe in a hard interview room without any explanation as to the consequences of the interview or what exactly was happening left Mr. Keefe without any ability to assess if he should answer the questions put to him.

[84] He might have seen the camera but did not know what its actual purpose was. He did not know that what he said to the police would be recorded to support the prosecution of the case against Mr. Keefe. He did not know that there were really two police officers working together on this interview, obviously to make sure all the right questions were asked.

[85] Had Mr. Keefe been told any of this immediately before the interview commenced, he would have been able to assess whether to say anything to Detective Constable Bagley.

[86] In response to a request to delay the interview because he was told that he should wait for his lawyer to be there before speaking to the police, Detective Constable Bagley told Mr. Keefe that his lawyer was not coming – which Mr. Keefe had no way to assess as being truthful or not – and that the reason the lawyer was not coming was because Mr. Keefe had just spoken to him.

[87] During the interview, it was clear that Mr. Keefe was experiencing heightened anxiety, no doubt in response to the situation facing him and the fact that he had not been provided with his medication. Mr. Keefe had to pause, or slow down, the interview more than once in order to deal with his anxiety.

[88] The operating mind doctrine requires an individual to know that they are speaking to the police, and that they fully appreciate the possible legal consequences of speaking to the police. For his statement to be voluntary, the Crown must show that Mr. Keefe had the cognitive capacity to understand what he was doing, i.e., that he knew what he was saying, and that he understood that whatever he said could be used against him in legal proceedings. When an operating mind is found to exist, an individual is said to be capable of making a meaningful choice to speak to the police.

[89] The Crown has the onus of proving the voluntariness of the statement beyond a reasonable doubt. Given the overall context of the interview, and the specific factors described above, which support a finding that Mr. Keefe was a vulnerable person, I do not find that the Crown has met its onus. As such, the statement is not available for use at the trial of Mr. Keefe.

[90] While I have already reviewed several personal circumstances that existed at the time of his interview, and which have influenced my decision, they bear repeating.

[91] Mr. Keefe was young. He did not have any experience with the law, the police, or the justice system. He suffered from anxiety and depression, which were treated with medications he had not taken. He was cold and tired and did not sleep during the night between the time he spoke to his lawyer and the time he was interviewed by Detective Constable Bagley.

[92] His inexperience with the justice system is relevant only to support the finding that, while in the interview room with Detective Constable Bagley, he was not told and therefore could not know that his interview would be audio and video recorded and made available for use in the proceeding against him. He also believed that he should wait for his lawyer before talking, but immediately began talking after he was told by Detective Constable Bagley that his lawyer would not be coming because they had recently just had a conversation.

[93] One of the pillars of voluntariness is the operating mind requirement. While not presenting a high threshold, the doctrine demands that an individual have the cognitive ability to understand that they are speaking to the police, as well as the possible legal consequences of providing information and evidence to the police.

[94] Requiring an individual to know that whatever they tell the police can be used against them in legal proceedings allows that individual to make a meaningful choice to talk to the police: see R. v. Whittle, [1994] 2 S.C.R. 914.

[95] The operating mind requirement is intended to protect an individual’s rights and ensure fairness in the criminal justice system. Any information which outlined his Charter rights and which the police provided to Mr. Keefe fourteen hours before he was interviewed was no longer front of mind given the lapse of time and intervening circumstances. It is reasonable to assume that he no longer appreciated whatever information he may have been provided, and the failure to outline the full circumstances and potential repercussions of participating in an interview further impaired Mr. Keefe’s operating mind.

[96] The Supreme Court stated in R. v. Tessier, 2022 SCC 35, para. 52:

The default assumption in the cases is that, absent a cognitive impairment, an operating mind exists. But the burden always rests with the Crown to show, beyond a reasonable doubt, that the statement was voluntary in light of the broader contextual analysis proposed in Oickle. An operating mind is of course a necessary but not sufficient condition.

[97] The Crown argues in support of the statement’s voluntariness that Mr. Keefe simply repeated the story he told to the 911 operator immediately after the altercation with Mr. Cunningham occurred. As such, the evidence provided by Mr. Keefe during his interview with Detective Constable Bagley supports a finding that he wanted to tell his story again, and that he willingly did so with an operating mind.

[98] While I agree that the evidence provided during the interview with police was similar to the information provided by Mr. Keefe during the 911 call, I do not agree that this means he differentiated the impact of speaking to the 911 operator and Detective Constable Bagley. In addition, the circumstances of both conversations were contextually very different, and cannot be considered as Mr. Keefe simply wanting to share what had happened.

[99] Finally, while I do not confess to doing a line by line or word by word comparison between the two conversations, I would expect that there are differences in Mr. Keefe’s evidence that are likely a result of the two distinct situations he found himself in when speaking to the 911 operator and the police.

[100] Mr. Keefe clearly understood what he was doing when he intentionally called the 911 operator to ask for police assistance.

[101] However, I disagree with the assertion that, beyond a reasonable doubt, he understood the implications of not waiting for his lawyer and instead speaking to Detective Constable Bagley. In fact, if Mr. Keefe was advised of the possible use the evidence he provided to Detective Constable Bagley could be put, and that it was audio and video recorded, that could very well have impacted what he told the police and how much information he provided at the interview.

[102] I agree with the submissions of counsel for Mr. Keefe that a statement or story would be different if a person understood he or she was being recorded. In this day and age, when everyone has a camera to capture stills or videos on their mobile devices, individuals know the impact of posting pictures or video to social media. Subjects of these photos or videos are quite aware of how important it is to act a certain way when a mobile device is aimed in their direction.

[103] In the viva voce evidence provided by Detective Constable Richard Ryan Wasilewski and Detective Constable Bagley during the application hearing, both described signage in the booking room of the Thunder Bay Police Station cautioning detainees that everything they do and say while in that space is being recorded. Both officers agreed that this sign was there to caution detainees, and that officers will point out the sign to detainees in order to impact their behaviour during the booking process. People conduct themselves differently when they know they are being recorded.

[104] Had Mr. Keefe known about the functionality of the camera in the interview room, he still may have said all the things he said, in the ways he ended up saying them, to Detective Constable Bagley. However, it is probable that this would not have happened, and on this basis – coupled with the vulnerabilities of Mr. Keefe – I find that the Crown has not met its onus in establishing the voluntariness of Mr. Keefe’s confession.

[105] Given his vulnerabilities, and the fact that the manner, purpose, and potential use of the interview was not explained to him, it has not been established that Mr. Keefe had an operating mind at the time he was interviewed on June 26, 2024.

[106] Accordingly, the application is granted, and the evidence provided during the video interview of Mr. Keefe, taken in the presence of Detective Constable Bagley on June 26, 2024, is excluded from this proceeding.

“original signed by”

S.J. Wojciechowski

Released: January 22, 2025