Court File and Parties

Court File No.: CR-21-00000959-0000 Date: 2025-09-08 Ontario Superior Court of Justice

Between: His Majesty the King Applicant

- and -

L.L. Respondent

Counsel: Jelena Vlacic, for the Applicant Anthony Bugo, for the Respondent

Restriction on Publication

Pursuant to an order of this court, issued under s.486.4(1) of the Criminal Code, no information that could serve to identify the complainant in this prosecution shall be published in any document or broadcast or transmitted in any way.

This decision has been anonymized so that it complies with this direction.

Reasons for Judgment

LeMay J.

Introduction

[1] At approximately 4:00 a.m. on June 16th, 2019, L.L. was arrested near the residence of his ex-girlfriend. He was charged with two counts of assault and one count of uttering threats and then placed in the back of a police cruiser. A few minutes later, he was no longer in the back of the police cruiser. A window in the police cruiser had been broken. L.L. ran down the street and the police could not catch him. He disappeared from view, and the police subsequently conducted a search for him.

[2] Just after 6:00 a.m. on June 16th, 2019, the police found L.L. in the backyard of a friend's house. He was re-arrested and taken to the police station. Just before the interview at the police station started, L.L. was advised that he was being arrested for a longer list of charges. Given the ongoing investigation, the list of charges changed over the course of the morning. He also spoke to duty counsel. He was then interviewed and provided the police with a statement.

[3] The Crown sought to have the statement admitted on the basis that it was given voluntarily. The defence opposed this request and argued that the statement was not voluntary. The defence also argued that there were various breaches of ss. 10(a), 10(b), and 7 of the Charter, and that none of these breaches were saved under s. 24(2).

[4] The evidence on these alleged breaches consumed several days at the beginning of the trial. The parties agreed that the evidence given on the voir dire should be applied to the trial, as appropriate. The voir dire concluded with a day of oral arguments on April 16th, 2024. On April 18th, 2024, I advised the parties that the Crown had proven, beyond a reasonable doubt, that the statement was voluntary. I also advised the parties that the s. 7 breach claimed by L.L. did not occur and that the Charter did not require the exclusion of the statement for any of the other reasons raised. In my bottom-line decision, I did not advise the parties of my disposition of specific issues.

[5] I also advised the parties that I would provide written reasons for my disposition of the voir dire. These are those reasons, and they address all of the arguments that were made in respect of the statement. They are being released concurrently with the reasons for decision in the trial.

Background

[6] The events in this case can be divided into three parts:

a) The initial arrest and disappearance. b) The subsequent arrest and transportation to the station. c) The interview at the station.

[7] I will provide a summary of these events. From this summary, I will then outline the issues that arise in this case and then set out the framework that I will use to analyze the various issues.

[8] In the course of the trial, the evidence in respect of some of these events became more detailed as additional witnesses were called. In making this decision, I have only used the evidence of the police officers who testified on the voir dire. Those officers were:

a) Sgt. Rick Garcia b) Cst. Lindsay Galliher c) Sgt. Stephanie Herdman (who was a Constable at the time of the incident. I will refer to her in these reasons as Cst. Herdman) d) Cst. Matthew Orbegoso e) Cst. Rajandeep Bimbh f) Cst. Olivia Mule (who is now a Constable with the Toronto Police Service) g) Cst. Troy Campbell h) Cst. Barjinderpal Bansal i) Cst. Colin Blaney

[9] The accused did not testify on the voir dire, although he did testify at trial. I have not considered his evidence, other than what is in his statement to the police, in disposing of the issues on the voir dire.

a) The Initial Arrest and Detention

[10] At approximately 2:55 a.m. on June 16th, 2019, a fire was reported at the residence of K.D. She had been, until shortly before this incident, the girlfriend of the accused, L.L. Police and fire were dispatched to the scene. The first police officer to arrive was Sgt. Garcia.

[11] K.D., her friend C.D., and a couple of her other friends were on the scene. They had come from the home where C.D. lived with her partner, C.S., and C.S.'s parents. K.D. and C.D. initially spoke to Sgt. Garcia. They were then interviewed by Cst. Galliher, who was a trainee officer and who had been in the field for less than two weeks. Cst. Herdman was supervising her and was in the vicinity of Cst. Galliher when Cst. Galliher was conducting the interview.

[12] Based on the information that was obtained from K.D. and C.D., Cst. Galliher formed the view that L.L. was arrestable for a number of offences. The scope of those offences is an issue that I will resolve in my analysis, although Cst. Galliher testified that she only formed the view that L.L. was arrestable for two counts of assault and one count of uttering threats.

[13] While Cst. Galliher was interviewing K.D. and C.D., L.L. arrived on the scene. While no one testified as to a precise time of L.L.'s arrival, based on the subsequent events, I find that L.L. arrived at the fire scene at approximately 4:00 a.m. K.D. and C.D. began to shout, "that's him", and point towards L.L., who was walking directly towards K.D. and C.D. Cst. Galliher shouted that L.L. was arrestable.

[14] L.L. was, at that point, arrested by Sgt. Garcia and placed in the back of the police cruiser that was being used by Cst. Herdman and Cst. Galliher. It was approximately 50 meters away from the fire scene. L.L. was handcuffed with his hands behind his back and placed into the cruiser by Sgt. Garcia. Cst. Herdman was present when this was done at 4:08 a.m. Sgt. Garcia took no further steps with L.L. at this point.

[15] However, Cst. Galliher was designated to read L.L. his rights, which she did at 4:10 a.m. At the time that Cst. Galliher read L.L. his rights, she was seated in the driver's seat of the cruiser and turned around so that she was facing L.L. who was in the backseat. The backseat of the cruiser was divided in half and L.L. was behind the passenger's seat rather than the driver's seat. There was a plexiglass partition that separated him from the rest of the car.

[16] During the course of reading L.L. his rights, L.L. advised Cst. Galliher that he might have his own lawyer. As a result, she got out of the car to go and ask Cst. Herdman how to figure out who his lawyer was and what should be done to contact that person. She found Cst. Herdman and Sgt. Garcia standing together, somewhere between 25 and 50 feet from the cruiser where she had left L.L.

[17] Cst. Herdman testified that she locked the cruiser as she walked away from it. All three officers testified that the backseat doors cannot be opened from inside the cruiser. When Cst. Galliher approached Cst. Herdman, she denied being told that she should not have left L.L. alone in the cruiser. Cst. Herdman testified that they began to walk back to the cruiser within a minute of Cst. Galliher arriving, and that she mentioned that L.L. was alone in the cruiser.

[18] During Cst. Galliher's absence from the cruiser, L.L. exited the cruiser and was spotted by one of the firefighters running down the street. That firefighter got the attention of Cst. Galliher, Cst. Herdman, and Sgt. Garcia by waving his arms at them. Cst. Herdman gave chase on foot and Sgt. Garcia gave chase in his cruiser, which was not the cruiser that L.L. had been placed into. They lost sight of L.L.

[19] All of the police officers testified that they did not see the broken glass of the cruiser window or that the window was missing when they started to chase L.L. While the officers were chasing L.L. and/or looking for him, Sgt. Garcia put out a call on the radio saying that L.L. had escaped because the back door of the cruiser was left open. These statements were made when Sgt. Garcia was calling for the K9 unit and were never corrected, either over the radio or in his notebook. I will return to this call in my analysis of the s. 7 issue.

[20] All three officers testified that they noticed the broken glass at the scene on the roadway. They also noted that L.L.'s flip-flops had been left in the cruiser in the backseat. There are a number of observations from the officers that most, if not all, of the glass was on the outside of the cruiser. However, the scene photos depict glass on the inside of the cruiser, as well as on the street next to the broken window.

[21] An all points bulletin was put out for L.L., and police staff were advised that he would likely be frequenting either his own residence or the residence of C.S. and C.D. A number of units were dispatched to search for, and apprehend, L.L.

b) The Second Arrest

[22] Shortly before 6:00 a.m., L.L. turned up at C.S. and C.D.'s residence. He went into the backyard. A call was made to 911 and units were dispatched to the residence. Shortly after 6:00 a.m., Cst. Orbegoso and Cst. Bimbh attended at C.S.'s house and arrested L.L. They also called the paramedics to come and determine whether L.L. had any injuries.

[23] When L.L. was found, he had handcuffs on, but they were in front of him, and his hands were no longer behind his back. The officers both had their weapons out. Cst. Orbegoso had his gun out, and Cst. Bimbh had her taser out. The other officer that was present was Officer Chaudhury. I did not hear testimony from him. After I had rendered my bottom-line decision in this matter, a witness testified that she had seen a taser used on L.L. The parties adjourned the matter for a day to obtain further evidence about whether the taser had been used, and, if so, whether the application should be reopened. The taser downloads were duly obtained and showed that none of the officers discharged their tasers.

[24] L.L. was ordered to move from the concrete onto the grass and lie down. The officers adjusted his handcuffs. Cst. Orbegoso testified that he advised L.L. that he was being charged with two counts of assault, and one count each of uttering threats, mischief over, and flight from police. Cst. Orbegoso also testified that he gave L.L. his rights to counsel. In argument, L.L.'s counsel disputed that testimony, and I will return to this issue below.

[25] At approximately 6:20 a.m., Cst. Mule and Cst. Campbell arrived. They were travelling in the same cruiser. At that point, Cst. Mule observed that L.L. had ripped clothes, a cut on his left calf, and blood on his hands. She also noted that there were other scrapes on his body, but at the time she testified she was not sure where they were.

[26] The paramedics arrived around that time. Cst. Mule testified that they probably arrived shortly after she got there, but she was not entirely certain of this. The paramedics then reviewed L.L.'s condition, he declined treatment, and said that he would be transported to the police station with the police.

[27] At 6:34 a.m., Cst. Mule cleared the scene and took L.L. in the back of her cruiser. Cst. Campbell was driving. On the drive to the station, she read L.L. his rights to counsel. He was cautioned for assault, mischief over, flight from police, and arson. Cst. Mule also testified that, in response to the various rights he was read, L.L. advised that he had a lawyer, but could not remember what his lawyer's name was.

c) The Interview

[28] L.L. arrived at the police station at approximately 6:51 a.m. He was booked into cells by Cst. Bansal, who was the cells officer at the time. In the course of booking him in, Cst. Bansal was advised by L.L. that he suffered from depression and anxiety and was on medication for those two things.

[29] Cst. Mule testified that, when she returned to the station, she contacted duty counsel because L.L. advised her that he could not remember the name of his lawyer and that he wanted to talk to duty counsel. She was not given a name of counsel and had, on her evidence, no basis with which to identify counsel. L.L. was given the opportunity to speak to duty counsel in private at 7:16 a.m.

[30] At 8:34 a.m., Cst. Mule went back down to the cells and advised L.L. that he was being charged with two counts of assault, and one count each of uttering threats, escaping lawful custody, and mischief over. Cst. Mule also advised L.L. that he was just being investigated for arson. She re-read his rights to counsel to him at that point.

[31] While L.L. was in custody, he was checked on regularly by the cells officer. He was also provided with breakfast around 8:30 a.m.

[32] At approximately 11:35 a.m., L.L. was brought into an interview room and interviewed by Cst. Blaney. The interview started with Cst. Blaney outlining a series of charges that L.L. faced, going through L.L.'s right to counsel in detail, and then confirming L.L.'s desire to speak to duty counsel. Cst. Blaney then left the room. There were a couple of brief returns to the room as L.L. had a small wound on his leg, there was a little bit of bleeding from it, and he required a band-aid. A band-aid was provided.

[33] Cst. Blaney came back at approximately 12:05 p.m. and advised L.L. that there were additional charges that he was facing. The complete list of charges that L.L. was given on the second occasion is as follows:

OFFICER: So, I have a time of 12:06. Re-read RTC and caution. Okay here we go. All right so I'm arresting you for assault 12:06 take auto without consent, mischief over, assault, mischief under, break and enter, assault, utter threats, mischief under, sexual assault, utter threats, assault, mischief to the police car kicking out the window, escape lawful custody, utter threats. That'll be on Mya Connelly. Utter threat to J.M. and utter threat to burn down the house. And again, I'm cautioning you ...

L.L.: Yeah, yeah, yeah.

OFFICER: ... for the arson.

[34] This list was repeated during the course of Cst. Blaney reviewing L.L.'s right to counsel with him. On both occasions that Cst. Blaney read the list of charges to L.L., he was cautioned that he was being investigated for arson, and was not yet being charged with it, but that he could face a charge of arson at some point in the future.

[35] After the rights to counsel were read on the second occasion, with the updated list of charges as set out at paragraph 24, a telephone was brought in. L.L. was given privacy in the interview room, and the audio in the room was muted. L.L. then had a five-to-seven-minute conversation with duty counsel.

[36] When L.L. finished talking to duty counsel, Cst. Blaney returned. L.L. asked whether he would be taken to court that day and was advised that they were not promising him anything either way. Cst. Blaney and L.L. had a discussion for approximately twenty-five minutes then the interview was terminated because L.L. was being taken to court for a bail hearing.

Issues

[37] The sequence of events laid out above gives rise to the following claims of Charter violations by the accused:

a) On the initial arrest at 4:00 a.m., he was denied his 10(a) and 10(b) rights on the basis that he was not informed of all of the charges that he was being detained for.

b) On the initial arrest at 4:00 a.m., he was also denied his right to counsel because there was a delay in reading him his rights, in particular when Sgt. Garcia left him alone in the car and he did not know if another officer was coming to speak with him.

c) The police engaged in a s. 7 breach by telling the accused that he had kicked the window of the police cruiser out when, in actuality, it was more likely the police that had kicked the window out to cover up L.L.'s escape.

d) On the arrest at 6:08 a.m., the rights to counsel were not read. On this point, L.L.'s counsel asks me to infer that Cst. Orbegoso was not credible.

e) Cst. Mule, when she read L.L. his rights to counsel, knew that he was arrestable for arson and did not read him the correct charges. As a result, this was a breach of ss. 10(a) and (b) of the Charter.

f) There was an overarching concern that, on a number of occasions L.L. asked to speak to his own lawyer. His right to do so was never pursued and the various officers involved were not reasonably diligent in pursuing it.

g) On the occasions when L.L. was given the right to counsel, he was only given a choice between his own lawyer and duty counsel. He was not given the third choice of finding a lawyer.

h) In the course of the interview, Cst. Blaney made comments that derogated from the advice that L.L. would have been given by duty counsel.

[38] These various claims raise overlapping Charter issues and require me to make a series of findings of fact. Once I have made those findings, I must consider s. 24.

[39] Section 24 arises in this case because the Crown has conceded at least one "technical" breach of the Charter. Specifically, when L.L. was arrested at 6:08 a.m., on the Crown's evidence, he was told by Cst. Orbegoso that he was being arrested for flight from police, when the Crown concedes that at that point the police had grounds to charge him with escaping lawful custody. These are different offences.

[40] Given all of these points, I am of the view that it is appropriate to divide the issues into four discrete sections:

a) Are there any s. 10(a) or 10(b) violations besides the one that is conceded?

b) Is there a s. 7 violation?

c) Is the statement that L.L. gave to the police voluntary?

d) Given the violations that I have found, should the statement be excluded under s. 24(2) even if it is voluntary?

[41] I will deal with each of these issues in turn, making the necessary credibility findings as I go.

Issue #1 - Ss. 10(a) and 10(b)

[42] Defence counsel addressed the issues in respect to ss. 10(a) and 10(b) chronologically, which was helpful from a factual perspective. In Crown counsel's argument, she broke the various violations under these sections down into four sub-categories:

a) Whether there were delays in providing L.L. with his right to counsel.

b) Whether the right to counsel contained the necessary information.

c) Whether L.L. was improperly steered towards duty counsel.

d) Whether there was any derogation of the advice that was received by L.L. during the interview.

[43] In my view, these sub-categories are a useful way to consider the issues in the case while also keeping in mind the factual underpinnings. I note, however, that I also need to consider the evidence holistically, particularly when I address the issue of whether the statement was voluntary.

[44] Before reviewing these sub-categories, some basic principles should be spelled out in terms of the rights under ss. 10(a) and 10(b). First, s. 10(a) requires a person who is detained to be advised of the reasons for their detention in plain and simple language: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 21.

[45] Second, s. 10(b) imposes three defined, positive duties on police officers when they arrest or detain someone. Those duties, set out in R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173 are:

a) To inform the detainee of their right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

b) If the detainee has indicated that they wish to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right; and

c) To refrain from eliciting evidence from the detainee until they have had that reasonable opportunity.

[46] The duty to inform a detainee of their right to counsel arises immediately upon arrest or detention: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 41-42. The importance of the right to counsel has been explained in many cases, including in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, where the court stated, at para. 45:

[45] The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

[47] With these basic principles in mind, I will now address the four sub-issues.

Delays In Providing Right to Counsel?

[48] A detainee needs to be informed of their right to counsel immediately. L.L. argues that he was denied this right because Sgt. Garcia put him in the back of the cruiser without reading him his rights, and without informing him that another officer would be coming to read him his rights. I reject that argument for two reasons. First, Sgt. Garcia was well aware that Cst. Herdman and Cst. Galliher were involved in this arrest. Second, even if Sgt. Garcia did not know that Cst. Galliher was going to read L.L. his rights, she did so within a minute or two of him being arrested. In other words, the right to counsel was explained immediately upon arrest.

[49] L.L. advanced a second argument, which was that, contrary to what was contained in Cst. Orbegoso's notes, he was not given his rights to counsel when he was re-arrested at 6:08 a.m. This argument requires me to consider Cst. Orbegoso's notes. In cross-examination, Cst. Orbegoso acknowledged that he did not prepare the notes in respect of him reading L.L. his rights to counsel until the end of his shift.

[50] Cst. Orbegoso was part of a briefing in respect of the incident involving L.L. Prior to the briefing but after having made a number of other notes, he made a note in his notebook that he had given rights to counsel to L.L. After the briefing, he included a more detailed note that outlined all of the answers to the questions that L.L. had given.

[51] Counsel for L.L. argues that these notes may have been made up and that L.L. may not have been given his rights to counsel by Cst. Orbegoso. In support of that allegation, he points to the sequence of events that I have described in respect of the making of the notes along with the fact that Cst. Bimbh does not have anything in her notes about rights to counsel being given by Cst. Orbegoso.

[52] I start with the fact that Cst. Bimbh does not have anything in her notes about rights to counsel. I accept her evidence that, at the time of this incident, she would not have made a note of another officer providing rights to counsel as it was not something that she did. She also fairly conceded that she did not remember whether rights to counsel were given at the time of the second arrest. This means that her evidence on this point does not assist the Crown's position. However, it does not assist L.L.'s position either.

[53] This brings me to Cst. Orbegoso's notes. I reject L.L.'s submission that the entries in respect of rights to counsel were made up after the fact for two reasons. First, the original late entry in terms of rights to counsel was made before the briefing, while Cst. Orbegoso was reviewing his notes at the end of the shift. I accept that he put the entry at this point in the notes. I also note that Cst. Orbegoso fairly acknowledged that there were substantial issues with the quality of his notes.

[54] Second, and more importantly, one of the notes that Cst. Orbegoso recorded at the end of his shift was that L.L. might want to call his own lawyer. Therefore, to accept that Cst. Orbegoso had made these entries up would require me to accept that he had been able to guess that L.L. had mentioned that he might have his own lawyer in response to one of the rights to counsel. The information Cst. Orbegoso recorded at this point is consistent with the rest of the evidence in this case and strongly suggests that Cst. Orbegoso correctly recorded the information at the end of his shift on June 16th, 2019.

[55] I should also briefly touch on the issue of whether L.L. should have been afforded the right to contact counsel before he was taken to the police station. There are both legal and factual reasons why this does not amount to a breach of L.L.'s s. 10(b) rights. First, from a factual perspective, Cst. Galliher testified that police officers were not issued Peel Police cellphones and could not have facilitated such a contact. Second, from a legal perspective, the right to counsel must be exercised in private: R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at para. 77. I see no way that the police could have facilitated a private conversation for L.L. prior to arriving at the station, especially since he had escaped custody once before.

Informational Issues in the Right to Counsel

[56] Counsel for L.L. argued that there were two breaches of the informational rights, as follows:

a) The right to be informed of the charges on the original arrest. A whole panoply of charges were left out.

b) The issue that he was not, when arrested at 6:08 a.m., cautioned for escape lawful custody or arson.

[57] The Crown has already conceded one breach on the informational component of the right to counsel. Specifically, Crown counsel acknowledged that, when L.L. was arrested at 6:08 a.m. he was charged with fleeing police when the proper charge was escaping lawful custody. This is a breach of s. 10(a), and I will consider its effect on both the voluntariness of L.L.'s statement and in my analysis of whether the statement should be excluded under s. 24(2).

[58] Then, there are the alleged breaches of L.L.'s informational rights at the original arrest. Counsel has raised two specific problems with the steps taken by the police at the time of the original arrest. First, there is the question of what Cst. Galliher cautioned L.L. for. Second, there is the question of whether that list of charges was sufficient.

[59] On the first point, counsel argues that the evidence of whether Cst. Galliher cautioned L.L. for two counts of assault and one count of uttering threats or just assault is not clear. There were differences in the briefing she provided and the notes she made. On a couple of occasions, the threats were not mentioned. While this difference would normally be concerning, I accept Cst. Galliher's evidence that she has a quite vivid memory of which charges she cautioned L.L. for because it was her first arrest. In my view, that is an entirely credible explanation for both her vivid memory and for the inconsistencies in the notes.

[60] This brings me to whether the list of potential charges was sufficient. L.L.'s counsel points to a couple of deficiencies. First, he argues that L.L. should have been cautioned for possession of cocaine, because people had said that they had seen him use it earlier in the evening. I reject that argument. I do not think that it is realistic for the police to be expected to caution someone for possession of cocaine merely because they were told that someone had used it earlier in the day. I am not sure that, if an officer had that information, it would found a reasonable suspicion to arrest someone for possession. That is not the question I have to answer, however. I just have to determine whether these officers would have had that issue in their minds. I conclude that they would not have, at least in part because they were dealing with other, more significant, allegations.

[61] Then, counsel argues that L.L. should have been cautioned for arson. I agree with him. The police officers would have had to have reasonable and probable grounds to arrest L.L. for arson. However, they would only have needed a reasonable suspicion to detain him for investigative purposes in respect of a potential arson charge: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 24, 27. In my view, at the time of the original arrest at 4:08 a.m., the police officers had a reasonable suspicion and detained L.L. for arson. However, they did not caution him for arson and, thereby, breached his Charter rights under s. 10(a) and, most probably s. 10(b) as well. The breach of s. 10(b) will arise because L.L. will not be able to properly obtain legal advice if he does not know what charges he is facing.

[62] I reach that conclusion based on the evidence of Sgt. Garcia, Cst. Herdman, and Cst. Galliher. I start with Sgt. Garcia's evidence. At the time of arresting L.L., Sgt. Garcia acknowledged that "red flags" were going up in respect of the possibility of an arson charge based on the information he had obtained from K.D. That information included the fact that L.L. and K.D. had had a fight earlier in the evening at a party, that L.L. had been acting strangely, and that L.L. had threatened to burn down K.D.'s house. There had also been, at this point, an active fire in the house. In my view, these were more than "red flags". They were a reasonable suspicion. I am also not sure what Sgt. Garcia thought the difference between "red flags" and a reasonable suspicion was. I cannot see a difference myself.

[63] The same reasonable suspicion can be seen from the evidence of Cst. Herdman. She was aware that L.L. had made threats to burn the house down, and that he was drinking and under the influence of cocaine. Cst. Herdman testified that she was not able to arrest him for arson because she could not confirm that it was arson. The problem with that evidence is that, to have a reasonable suspicion of arson, Cst. Herdman did not need to "confirm" it was arson. The facts that she had were sufficient to establish a reasonable suspicion, and her explanation about needing to "confirm" arson suggests that she was well aware that the facts established a reasonable suspicion.

[64] Finally, there is Cst. Galliher's evidence. She had a detailed interview with K.D. and C.D. in which she discovered that they believed that L.L. had set the fire, that he was drinking and under the influence of cocaine, that there had been previous threats, and that assaults had taken place that evening. Again, the house at this point had actually been an active fire scene.

[65] Crown counsel argues that, while an officer has to have a reasonable suspicion in order to effect a detention, I must look to a specific officer's evidence to determine whether that officer had a reasonable suspicion in the circumstances. In this case, according to counsel, the evidence that I have is that these officers (Garcia, Herdman, and Galliher) did not have a reasonable suspicion that L.L. had committed arson.

[66] I reject this argument. Given the significant red flags that Sgt. Garcia identified in this case, it defies logic to accept that neither Cst. Herdman nor Sgt. Garcia had a reasonable suspicion in their minds that L.L. could be detained and asked questions about a potential arson charge. I do accept that it was possible that Cst. Galliher, given her inexperience, might not have had a reasonable suspicion of arson but, on these facts, even that is a stretch. Given that L.L. was being arrested for other offences, it was incumbent on the officers to have cautioned him in respect of arson at this point as well. The failure to do so was a breach of his s. 10(a) and 10(b) rights. That breach continues until he is cautioned for arson by Cst. Mule on the way to the station after the second arrest.

Steering Towards Duty Counsel?

[67] On the occasions when he was arrested, L.L. repeatedly said that he had a lawyer from when he was younger. However, he also said that he did not know the name of this lawyer and offered no other information about this lawyer. After the initial arrest, Cst Galliher goes to consult with Cst. Herdman about what to do with this request. Cst. Herdman quite fairly states that a request for a specific lawyer is not something that can be addressed until they get back to the station. As I have noted at paragraph 55, the right to counsel needs to be exercised in circumstances where it can be exercised in private. It is also clear that L.L. does not remember the name of or any identifying information about this lawyer. As a result, there is no possibility of a breach on this issue until Cst. Mule arrives back at the station.

[68] Every time L.L. is given his rights to counsel, he raises the subject of the lawyer that he had when he was eighteen or nineteen. The problem is that, on each occasion, he cannot remember anything about that lawyer and provides the police with no information about that lawyer. L.L. also does not identify a third party who knows his former counsel or provide the police with any other sources to try and obtain that information.

[69] On both occasions when Cst. Mule is advised that L.L. had a previous lawyer, he does not provide her with any identifying information. She testified that, if he had provided her with identifying information, or told her that a third party had that identifying information, then she would have acted on that information. She testified that she "contacted duty counsel because [L.L.] couldn't remember his lawyer's name and wanted to speak to duty counsel." Counsel for L.L. suggested that Cst. Mule should have done more to ascertain if L.L. had another counsel he wanted to talk to. I do not see what else could have been done. In any event, it is L.L.'s right to counsel and, as I will discuss below, he has an obligation to be diligent in exercising it. The police also have an obligation to be reasonably diligent in assisting the accused in finding and contacting counsel of choice: R. v. Edwards, 2024 ONCA 135, at para. 42.

[70] This brings me to the interaction between Cst. Blaney and L.L. One of the key passages from the interview in respect of duty counsel is the following:

OFFICER: Okay, do you wish to call a lawyer?

L.L.: I'd like to guess get back on the phone with duty counsel I guess.

OFFICER: Okay.

L.L.: 'Cause this is a lot more charges than what they're aware of

OFFICER: Sure. So, I'll yes.

L.L.: Yes.

OFFICER: Do you have a specific lawyer or is it duty counsel?

L.L.: I don't. I forgot the number and name of buddy that I used to have back when I was like 18, 19. 11:44

OFFICER: Sure.

L.L.: I lost contact with him so yeah I don't really have a lawyer unless like my parents have somebody, but I kind of feel like my parents have something to do with some of these.

OFFICER: Okay.

L.L.: I don't know.

OFFICER: Do you okay so do you want legal aid then. Is that what you want?

L.L.: Yeah, yeah, yeah.

OFFICER: Okay.

L.L.: want whatever is going to get me the heck out of here. So, I can start dealing with.

OFFICER: Legal aid okay. So once I go through this I'll step out.

[71] This passage indicates that Cst. Blaney was genuinely trying to determine whether L.L. had his own lawyer, wanted to find his own lawyer, or wanted to call duty counsel. The questions being asked are open ended and L.L. is going through, in his own mind, the fact that he cannot remember the name of the "buddy" he had when he was eighteen or nineteen years old, the fact that his parents might know someone but that they might be responsible for some of these charges, and then the fact that he wants counsel quickly. In my view, this exchange does not show an attempt to steer L.L. towards duty counsel.

[72] Counsel for L.L. relied on a number of decisions that deal with the issue of steering towards duty counsel. In my view, these decisions either support the conclusion that L.L. was not steered towards duty counsel or are distinguishable.

[73] The first of these decisions is R. v. Dickson, 2021 ONSC 6374. That decision was a summary conviction appeal on a drunk driving case. In that case, the accused had told the police on arrest that there was a lawyer that he wanted to contact but that he did not recall his name. He also testified that the lawyer had a "weird" name and that it was not a Caucasian name. He also testified that it was a Toronto based lawyer. The police took no steps to find the lawyer and just put the accused in contact with duty counsel. The trial judge found that there was no violation of the accused's 10(b) rights and the accused appealed.

[74] The appeal was allowed on the basis that there was a factual dispute in terms of what had been said by the accused and the officer that had not been resolved in respect of whether the 10(b) rights had been violated but made no final determination as to whether they were violated. In allowing the appeal, the SCA judge stated, at paras. 99, 105-6:

[99] There are circumstances where the duty arises regardless of whether the detainee can provide a name for counsel. For example, a detainee has the right to call a friend to find a lawyer. In other circumstances a duty arises to tell the detainee of the resources available to locate a lawyer of their choice even when they do not have the name of a lawyer in mind.

[105] It is not necessary on these facts to resolve the conflicting authorities on the implementational components where the detainee provides the name of a lawyer who cannot be contacted. Here, there was evidence the appellant told the officer about a lawyer whose name he could not recall and was given no information about the resources that were available at the detachment so that he would have the opportunity to locate the lawyer. Instead, the officer directed the discussion back to the appellant's right to speak to duty counsel.

[106] Third, absent unusual circumstances, police are required to facilitate access to a lawyer immediately by providing the detainee with an opportunity to consult with counsel. In finding no Charter breach, the trial judge concluded it was doubtful the appellant could have located Mr. Dos Santos' name on the internet. That may be so. But the caselaw establishes that the detainee is to be given a reasonable opportunity to contact counsel, not a guaranteed or probable route to contacting counsel. While it may be the unlikelihood of contacting counsel might be a relevant fact on a s. 24(2) analysis, it is not relevant in determining if there was a s. 10(b) breach.

[75] These passages raise a number of issues. First, if L.L. had said that either a friend or his parents might know the name of counsel, the police would have had an obligation to contact that person (or let L.L. contact that person). However, he never made that statement. To the extent that he spoke about his parents, his views on them were that they might know someone but that they might have been responsible for these charges. It was L.L.'s decision not to ask to contact his parents, and Cst. Blaney let him work through that issue without steering him in a particular direction.

[76] Second, if there had been any additional information from L.L. about his counsel, such as he works in Brampton, or the like, then the police might very well have had an obligation to try and assist L.L. in finding that lawyer. However, there was no additional information and L.L. was told that he had the right to contact counsel of his choice. He decided that he would prefer duty counsel because it would be faster.

[77] Counsel also relied on the decision in R. v. Kumarasamy, [2002] O.J. No. 303. That decision was another SCA. In that case, the officers had been told by the accused that he had a lawyer that he wanted to contact but the officers never asked for the name of the lawyer and simply directed the accused to duty counsel. The trial judge found that there was no violation of s. 10(b) because the accused had not given the lawyer's name and the police did not have an obligation to call a third party to get the number of a lawyer. On appeal, a breach of the 10(b) rights was found. The court found, at para. 25, that there is an obligation to facilitate contact with counsel of choice where a request has been made to speak to a specific counsel. This obligation includes permitting a phone call to a friend or relative to obtain the name of counsel. The case before me is distinguishable because, while L.L. said he had a lawyer, he did not remember the name, never asked to contact that person, and never asked to contact his parents.

[78] Then, in R. v. Ector, 2018 SKCA 46, 362 C.C.C. (3d) 462, the court was faced with a situation where the accused had said that his parents had a specific lawyer. This decision makes the general point, at para. 44, that the right to retain and instruct counsel without delay only makes sense if the police exercise their duty to facilitate contact with counsel. I accept that legal principle, which is also outlined in Pileggi, at para. 86. In L.L.'s case, however, there was no information by which the police could have identified counsel, and, in any event, L.L. did not express a desire to contact his parents or to have the police contact his parents. The duty to facilitate contact with counsel does not extend to contacting the accused's parents when the accused has not made that request.

[79] In understanding the limits to the right to counsel, the Supreme Court's decision in R. v McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402 is instructive. In that case, Mr. McCrimmon identified a specific lawyer, left him a message and then almost immediately after was asked whether he wanted to speak to duty counsel. His response was that he'd prefer to talk to his counsel of choice, but that he wanted to talk to duty counsel. An interview was conducted shortly thereafter, and the courts found no violation of Mr. McCrimmon's rights to counsel. One of the points made in this decision is that a detainee has the right to speak with a specific lawyer, and the police have an obligation to hold off interviewing him until that right is exercised. However, the court also notes, at para. 17, that the detainee must exercise reasonable diligence in exercising the right to speak to a specific counsel.

[80] In L.L.'s case, there are two reasons why I have concluded that his right to counsel was not infringed. First, Det. Blaney does not steer him towards duty counsel. Instead, Det. Blaney asks questions about who he would prefer, and does so in a non-leading way. Second, other than saying he had a lawyer whose name he cannot remember, there is no effort on the part of L.L. to exercise his right to speak to anyone other than duty counsel. This second point also applies to the occasions where Cst. Mule contacts duty counsel on behalf of L.L. Therefore, I find that there is no violation of L.L.'s right to counsel in this respect.

Derogation of Counsel

[81] The case-law is clear that the police cannot belittle an accused's lawyer, with the goal or effect of undermining the accused's confidence in their counsel or the advice that they have received: R. v. Burlingham, 1995 CanLII 88 (SCC), [1995] 2 S.C.R. 206, at para. 14. However, the right to counsel will be undermined even if there is no intent on the part of the police.

[82] In R. v. Dussault, 2022 SCC 16, [2022] 1 S.C.R. 306, the court explained, at para. 45, citing R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, the circumstances that would give rise to a finding of a derogation of counsel:

[45] Simply put, the purpose of s. 10(b) is to provide the detainee with an opportunity to obtain legal advice relevant to their legal situation. As noted earlier, the legal advice is intended to ensure that "the detainee's decision to cooperate with the investigation or decline to do so is free and informed". The legal advice received by a detainee can fulfill this function only if the detainee regards it as legally correct and trustworthy. The purpose of s. 10(b) will be frustrated by police conduct that causes the detainee to doubt the legal correctness of the advice they have received or the trustworthiness of the lawyer who provided it. Police conduct of this sort is properly said to "undermine" the legal advice that the detainee has received. If there are objectively observable indicators that the legal advice provided to a detainee has been undermined, the right to a second consultation arises. By contrast, the right to reconsult will not be triggered by legitimate police tactics that persuade a detainee to cooperate without undermining the advice that they have received. As Sinclair makes clear, police tactics such as "revealing (actual or fake) evidence to the detainee in order to demonstrate or exaggerate the strength of the case against him" do not trigger the right to a second consultation with counsel: para. 60.

[83] It is clear from this passage that even unintentional conduct on the part of the police that derogates from or undermines counsel or the advice that counsel provides constitutes a breach of s. 10(b) of the Charter.

[84] The impugned passage of the interview between Cst. Blaney and L.L. is found at the top of page 33 of the statement. It reads:

OFFICER: Right. That's usually how the process goes. Again, if you can speak later one once you get out a proper lawyer. But if you can't afford a proper lawyer ...

L.L.: Yeah.

OFFICER: ... if you're going to stick with duty counsel then obviously that's your right.

L.L.: Yeah, yeah.

OFFICER: What you want to do. But again, man yeah I was just looking for you know your side of the story. I completely understand if you want to make that choice ...

L.L.: Yeah.

OFFICER: ... and don't want to say anything.

[85] The issue in respect of derogating from counsel is the use of the word "proper". In cross-examination, Cst. Blaney correctly acknowledged that this was a poor choice of words. I accept that there was no intention to undermine counsel or the advice that had been given with the use of the word "proper".

[86] The crucial question on this issue is whether the use of the word "proper" had the effect of undermining duty counsel. I find that it did not for two reasons. First, it is one word over the course of an entire statement, and it is ambiguous. A proper lawyer can be a synonym for your own lawyer rather than one funded by legal aid: Merriam-Webster Dictionary

[87] Second, and more importantly, the statement needs to be considered as a whole. In the course of the statement, Cst. Blaney takes pains to point out that he respects counsel and the advice that he would have given to L.L. One passage, about six minutes before the "proper" comment is made is instructive:

OFFICER: So, I know and absolutely I respect what counsel has said to you and absolutely it's your choice whether or not you want to make this decision here to talk to me. But at the same time, it's I'm trying to get your side of the story. Your[ 12:27] point of view. At this point in time we as police only have information from one side. Right so, if there's something that isn't correct here and the charges that or that I've read to you.

[88] In my view, in assessing whether there has been a derogation of counsel, the focus is on the effect of the police conduct, but it has to be on the effect of the conduct as a whole. That conduct includes the fact that Cst. Blaney provides the right to counsel twice and then makes the comments about absolutely respecting the advice of counsel. Any concerns with the use of the word "proper" by Cst. Blaney are overcome by the manner in which he deals with counsel, and the rights to counsel, over the course of the interview.

Conclusion

[89] For the foregoing reasons, I find that the only violations of ss. 10(a) and 10(b) of the Charter are in respect of the failure to provide L.L. with the information on all of the charges he was facing at the time of his first arrest, and until Cst. Mule cautioned him for arson on the drive back to the station. The remainder of the claims under these sections are dismissed.

Issue #2 - The Alleged S. 7 Violation

[90] L.L. submits that it was, in fact, the police who kicked in the window of the cruiser after he exited the vehicle. L.L. argues that the contradictions in the evidence suggest that Cst. Galliher accidentally left the door open, he simply left the vehicle and, to cover up their mistakes, one or more of Cst. Galliher, Cst. Herdman, or Sgt. Garcia broke the window.

[91] In support of this position, L.L. points to the following evidence and/or issues with the evidence:

a) There are inconsistencies with the evidence provided by Cst. Herdman, Cst. Galliher, and Det. Garcia.

b) As he drove by the cruiser after L.L. escaped, Det. Garcia did not look in the cruiser to see whether L.L. was still there, or how he had gotten out.

c) Det. Garcia put out on the radio that L.L. had escaped because the cruiser had been left open and never corrected this statement.

d) The fact that there was some glass on the interior of the vehicle.

[92] I will deal with each issue in turn.

[93] On the inconsistencies, there is both a global point to make and a couple of specific points to make. Globally, I would note that I would not expect the evidence of the three officers to be entirely consistent. It was the middle of the night, and it was a chaotic and noisy scene. It is also five years after the fact and memories are going to fade. Indeed, as I observed to L.L.'s counsel in argument, he would have rightly had concerns if the officers had all agreed on every evidentiary point.

[94] Then, there are a couple of specific inconsistencies that L.L.'s counsel pointed to in argument:

a) The evidence as to whether Cst. Herdman heard the information about the charges from K.D. and C.D. Cst. Galliher says that Cst. Herdman was not beside her and asked for a briefing about the evidence afterwards. Cst. Herdman says that she did hear this information. In my view, this inconsistency is not particularly concerning because of the fact that Cst. Herdman was instructing Cst. Galliher, and it would not have been a surprise that Cst. Herdman would have reviewed the information obtained by Cst. Galliher to ensure she was seeing the correct things.

b) The evidence in Cst. Galliher's notes about what she was told about the grounds for arrest. There are inconsistencies in Cst. Galliher's notes about what Cst. Herdman told her. I have addressed those at para. 59, above.

[95] This brings me to Sgt. Garcia's testimony that he did not look at the cruiser to see the broken window as he drove by. Counsel for L.L. views this as significant. I disagree for two reasons. First, Sgt. Garcia had already been told that L.L. had exited the cruiser and was running down the street. At that point, it was far more critical for the police to attempt to re-apprehend him rather than to figure out precisely what had happened. Second, it was dark out. I am not sure what Sgt. Garcia would have seen in a fleeting moment or two as he drove by the cruiser. I do not view this problem as significant.

[96] This brings me to the fact, which is indisputable, that Sgt. Garcia broadcast that L.L. had escaped the cruiser through an open rear door. Sgt. Garcia testified that the reason he had broadcast this fact over the radio was that, on the one other occasion that someone had escaped from a cruiser during his career, this is how it had happened. Again, I do not see the same significance in this event that L.L.'s counsel does for two reasons. First, Sgt. Garcia also testified that he did not think it was possible for someone to kick the window of a cruiser out. Therefore, before he discovers the broken glass, this is a logical explanation for what had happened. Second, when this was happening, the far more critical point would have been the fact that a prisoner had escaped rather than how it had happened.

[97] This brings me to the fact that there was some broken glass on the interior of the vehicle. This is also indisputable. Counsel for L.L. is, in essence, arguing that this fact demonstrates that Sgt. Garcia (or, perhaps someone else) kicked the window out to cover up the fact that Cst. Galliher had left the door unlocked. I reject that assertion for the following reasons:

a) If L.L. had been able to just open the door and leave, there is no reason why he would have left his flip flops on the floor of the cruiser. He would have needed those to walk away, and he would not have had to take them off in order to kick the window out.

b) To accept L.L.'s theory of the events, I would have to accept that Sgt. Garcia broke the window while in uniform and with firefighters, civilians, and other police officers nearby. The risks associated with someone observing his behaviour and reporting it would be substantial. Indeed, the risks would be more substantial than the risks that the offending officers took in either R. v. Rocha, 2023 ONSC 1573, or R. v. Sommerville, 2017 ONSC 3311, cases that L.L.'s counsel relied upon. Although there was video footage in Sommerville, the police in both cases would have thought that it would be their word against the accused's. In this case, the firefighter had already seen L.L. escape. It is quite possible that he would have seen the state of the cruiser, and Sgt. Garcia would have been aware of this fact, making it very risky to break a window after the fact.

c) I have no clear evidence about either how much glass was on the interior or how the glass would have shattered and fallen when the window was broken. All that is clear from the scene photos is that there is glass on both the inside and the outside of the cruiser.

[98] For these reasons, I reject the assertion that anyone other than L.L. kicked the window out of the cruiser. I note that I am making that determination on a balance of probabilities only, as it is L.L.'s burden to prove what happened on a balance of probabilities at this stage.

Issue #3 - The Voluntariness of the Statement

[99] The test for voluntariness is set out in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3. In that decision, the Supreme Court outlined the four requirements for a statement to be voluntary:

a) There cannot be any threats or inducements offered to the person making the statement.

b) There cannot be oppression. A statement cannot be voluntary if the will of the person making it has been overborne.

c) The accused person must have an operating mind.

d) There cannot be any police trickery.

[100] The burden rests on the Crown to demonstrate, beyond a reasonable doubt, that L.L.'s statement was voluntary. I have found two Charter violations in this case, and it is possible for a Charter violation to found the exclusion of a statement, even if it is voluntary: R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575. As a result, I will address that issue in the final section.

[101] It is also worth noting that the right to remain silent does not prevent the police from speaking to an accused person: R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405. As set out in Oickle, at para. 33, there are two goals at play in these types of cases: the court must protect the rights of the accused without unduly limiting society's needs to investigate and solve crimes.

[102] Finally, in terms of the rights of the accused, the Supreme Court notes, at para. 32 of Singh, that:

32 Although the confessions rule applies whether or not the suspect is in detention, the common law recognized, also long before the advent of the Charter, that the suspect's situation is much different after detention. (As we shall see, the residual protection afforded to the right to silence under s. 7 of the Charter is only triggered upon detention.) After detention, the state authorities are in control and the detainee, who cannot simply walk away, is in a more vulnerable position. There is a greater risk of abuse of power by the police. The fact of detention alone can have a significant impact on the suspect and cause him or her to feel compelled to give a statement. The importance of reaffirming the individual's right to choose whether to speak to the authorities after he or she is detained is reflected in the jurisprudence concerning the timing of the police caution.

[103] With that legal background in mind, I now turn to the specific criteria for voluntariness. Once I have reviewed those criteria, I will step back and consider whether the facts, as a whole, give rise to a reasonable doubt as to whether the statement was voluntary.

a) No Threats or Inducements

[104] I heard testimony from almost all of the officers who were involved in the arrest, detention, re-arrest, and interview of L.L. The only officer I did not hear testimony from was Cst. Choudhury. I do not view that as a significant omission, as I did hear evidence from the other four officers who were on the scene with him. I also note that, in terms of the issues in this case, the evidence of Cst. Orbegoso is the most significant, as Cst. Orbegoso read L.L. his rights.

[105] The officers were asked whether they offered inducements or made threats to L.L., and all of them denied doing so. The officers were also asked whether they heard anyone else offering inducements or making threats, and they all denied that as well.

[106] This brings me to the statement. At the outset of the statement, Cst. Blaney gives L.L. a secondary caution and provides the right to counsel. There are no threats or inducements in the course of the statement. Indeed, Cst. Blaney makes it clear that, while they are dealing with L.L.'s bail situation, he wants L.L. to understand explicitly that there are no promises being made.

b) Oppression

[107] Counsel for L.L. argued that oppressive circumstances arose from the fact that the police advised L.L. that he had kicked out the window of the cruiser when it was more likely than not that it was the police who kicked the window out. Oppressive circumstances can be created by the use of non-existent evidence: Oickle, at para. 61. However, in this case, I have found, on a balance of probabilities, that it was L.L. that had kicked out the window of the police cruiser. Therefore, this issue does not arise.

[108] Other than the issues in respect of potentially false evidence, the primary argument in respect of oppression is that Cst. Blaney continued to ask L.L. questions in spite of the fact that L.L. had indicated, on more than ten separate occasions, that he did not want to talk to the police. The decision in Singh makes it clear that, even if an accused person asserts their right to silence, there is nothing that prevents the police from sharing their evidence and conducting an interview. This does not create oppressive circumstances in my view.

[109] The other types of oppressive conduct, such as sleep deprivation, climate issues (too hot or cold) or the like were not present in this case. As a result, I find that there were no oppressive circumstances when this statement was made.

c) Operating Mind

[110] One of the allegations that has consumed a significant part of this case is the question of whether L.L. was in an automatistic state at the time that he committed the offences. It must be remembered that, at the time that this motion was decided, most of the evidence respecting the quantities of alcohol or other substances that L.L. consumed during the course of the evening of June 15th, 2019, and early morning hours of June 16th, 2019, had not been tendered by either side. However, that evidence does not change the view that I formed that L.L. had an operating mind.

[111] It is important to start by observing what is meant by an operating mind. In R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914, the court noted that an operating mind required no higher awareness, at p. 936, "than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment." It is not a high standard.

[112] This brings me to the evidence in this case. First, as I have noted above, all of the police officers were asked whether they observed L.L. having troubles walking, moving around, or understanding what he said to them. The only officers who noticed anything were the officers who arrested him at the fire scene at 4:00 a.m.

[113] Specifically, Cst. Herdman noticed that L.L. was not focused on her and was focused on K.D. and C.D. when he arrived at the scene. Cst. Herdman spoke about having to get L.L. to focus on her. I do not view this as a significant concern for two reasons. First, it is clear that there was a reason that L.L.'s focus was elsewhere. Second, this issue of focus was more than seven hours before the statement was given.

[114] Second, at the outset of his police statement, L.L. is told that the room is being video and audio recorded. In response to that, he says, "so I should probably not say a word until I have a lawyer". This demonstrates that he is aware that he has been detained, and that saying anything could have negative consequences for him. This is a clear indication of an operating mind.

[115] Third, after he has spoken to duty counsel, L.L. makes it clear at the outset of his interview that he is going to follow the instructions of duty counsel and says, "I'm going to keep my mouth shut." All of these are indica of an individual who is well aware that he is speaking to the police and that the statements he makes can be used against him.

[116] For these reasons, I am of the view that L.L. had an operating mind when he made the statement.

d) Police Trickery

[117] As noted in Oickle, at para. 65, police trickery is a distinct inquiry. It is concerned with ensuring the integrity of the criminal justice system: see also Rothman v. The Queen, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640, per Lamer J. As Lamer J. noted, however, police discretion should not be unduly limited. What should be repressed is police conduct that shocks the community.

[118] The only argument that was made in respect of police trickery was in respect of the police cruiser. I have set out why I have rejected that argument above. I see no other basis to conclude that the police engaged in any "trickery".

e) Conclusion

[119] Having reviewed these four different criteria, I need to step back and consider the evidence holistically. In that respect, counsel for L.L. also argued that the notetaking in this particular case was so egregiously bad that it should leave me with a reasonable doubt as to whether the statement was voluntary or not. In support of this argument, he pointed to the duty of police officers to make notes. That duty is summarized in Wood v. Schaeffer, 2013 SCC 71, [2013] 3 S.C.R. 1053, where the court noted, at paras. 67-68:

[67] Against that background, I have little difficulty concluding that police officers do have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation. Drawing on the remarks of Mr. Martin, such a duty to prepare notes is, at a minimum, implicit in an officer's duty to assist in the laying of charges and in prosecutions — a duty that is explicitly recognized in s. 42(1)(e) of the Act.

[68] None of this, of course, comes as news to police officers. In this case, for example, OPP policy confirms the duty to make notes by requiring constables to record "concise, comprehensive particulars of each occurrence" during their tour of duty and to "make all original investigative notes . . . during an investigation or as soon thereafter practicable" (OPP Order 2.50, Member Note Taking, SIU Record, at pp. 48-52). More generally, police manuals have long emphasized the importance of accurate, detailed, and comprehensive notes; see, e.g., R. E. Salhany, The Police Manual of Arrest, Seizure & Interrogation (7th ed. 1997), at pp. 270-78.

[120] I start with the observation that a number of the officers (Cst. Galliher and Cst. Orbegoso most notably) had either a lack of detail or had late entries in their notes. I am fairly certain that, if the question was whether the notes of every officer in this case met the standard outlined in Wood, the answer would be no. However, that is not the question I have to answer.

[121] Instead, I am left to determine whether the various gaps in the notes leave me with a reasonable doubt as to the voluntariness of the statement. I have already dealt with specific examples of late entries into notes. I will make the more general observation that, while late entries are not ideal, they are notes that are made contemporaneously with the events and while the memories of the events are still fresh in the witness's mind. As a result, standing on their own, I do not view those late entries as "gaps".

[122] This brings me to the question of whether the lack of details in certain sets of notes leaves me with a reasonable doubt as to the voluntariness of the statement. The gaps do not leave a reasonable doubt for two reasons. First, in spite of any gaps, I have sufficient information from the notes and the testimony to be able to reconstruct what happened. For example, Cst. Bimbh did not make a note in her notes that Cst. Orbegoso provided rights to counsel. However, Cst. Orbegoso did make these notes, and I have explained why I have accepted his evidence on this point.

[123] Second, the gaps in the notes do not change the fact that the notes refresh the officer's memories and that they all testified to having an independent memory of this incident, although it was acknowledged by at least one witness that the memory was a bit vague. As a result, the officers were all capable of answering the question of whether any threats, inducements, or promises were made to L.L. when he was in their custody.

[124] When I step back and consider the evidence as a whole, I am satisfied beyond a reasonable doubt that L.L.'s statement was voluntary. In this respect, I also note that the Crown has called almost every officer that had contact with L.L. during the time he was in custody. I am required to consider the evidence in a contextual manner, and there must be a sufficient evidentiary record that I can provide meaningful scrutiny to the state's conduct: R. v. Lavalee, 2018 ABCA 328, 367 C.C.C. (3d) 486, at paras. 25, 35-36. The evidence, when taken as a whole, demonstrates the voluntariness of L.L.'s statement.

[125] The question then becomes whether it should be excluded on the basis of the Charter violations that I have found. I turn to that issue now.

Issue #4 - S. 24(2)

[126] I have found the following violations of the Charter in this case:

a) When L.L. was originally arrested at 4:00 a.m., he should have been advised that he was under investigation for arson, and he was not.

b) When L.L. was arrested the second time at 6:07 a.m., he was advised that he was being arrested for fleeing police, when he should have been advised that he was being arrested for escaping lawful custody.

[127] Both of these are violations of ss. 10(a) and 10(b) of the Charter. As a result, I am required to consider whether the evidence should be excluded under s. 24(2) of the Charter. This is a two-part inquiry. The first component is whether the evidence was obtained in a manner that infringed or denied a Charter right. The second component requires me to evaluate whether, having regard to all of the circumstances, the admission of evidence would bring the administration of justice into disrepute. This second element is based on the factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. I will deal with each issue in turn.

Obtained in a Manner

[128] The question of whether the evidence was obtained in a manner that violated the Charter requires me to consider the connection between the Charter violations and the evidence, in this case the statement. These general principles were summarized by the Supreme Court in R. v Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 38:

[38] Whether evidence was "obtained in a manner" that infringed an accused's rights under the Charter depends on the nature of the connection between the Charter violation and the evidence that was ultimately obtained. The courts have adopted a purposive approach to this inquiry. Establishing a strict causal relationship between the breach and the subsequent discovery of evidence is unnecessary. Evidence will be tainted if the breach and the discovery of the impugned evidence are part of the same transaction or course of conduct. The required connection between the breach and the subsequent statement may be temporal, contextual, causal, or a combination of the three. A "remote" or "tenuous" connection between the breach and the impugned evidence will not suffice

[129] In other words, I am required to look at the entire relationship between the breaches and the evidence that was obtained.

[130] If the police made a "fresh start" from these earlier Charter breaches before taking L.L.'s statement and severed any temporal, contextual, or causal connection between the breaches and the statement, then the evidence will not have been obtained in a manner that breached the Charter. If this doctrine applies, then the Charter violations still occurred, it is just that they were severed from the taking of the statement.

[131] The "fresh start" doctrine is explained in detail in Beaver. In that decision, the court also sets out a number of factors that will indicate whether or not a "fresh start" was undertaken. Those factors, set out at para. 103, include:

a) Whether the police informed the accused of the Charter breach and dispelled it with appropriate language;

b) Whether the police cautioned the accused after the Charter breach but before the impugned evidence was obtained. Ideally, this involves a primary and a secondary caution;

c) Whether the accused had the chance to consult counsel after the Charter breach but before the impugned evidence was obtained;

d) Whether the accused gave informed consent to the taking of the impugned evidence after the Charter breach;

e) Whether and how different police officers interacted with the accused after the Charter breach but before the impugned evidence was obtained; and

f) Whether the accused was released from detention after the Charter breach but before the impugned evidence was obtained.

[132] In this case, I am of the view that all but one of these factors are either neutral or support the existence of a "fresh start". First, I find that L.L. was not informed of the specific Charter breach, in that no one told him that the police had failed to identify the correct charges when he was arrested. However, the police did keep telling him what he was arrested for, Cst. Blaney went back and reviewed it with him twice to make sure that he had the correct information, and he was told that the police needed to ensure that the information was correct.

[133] On the second point, I note that L.L. was given a primary and secondary caution by Cst. Blaney before the interview and that Cst. Blaney re-did both cautions fully and from the start when additional charges were added. This factor suggests that there was a fresh start.

[134] On the third point, L.L. had the opportunity to consult counsel with full knowledge of the charges (and potential charge) that he was facing before he gave his statement. Again, this suggests that there was a fresh start.

[135] On the fourth and fifth points, I note that the accused was told of his rights on numerous occasions after these two breaches took place. In particular, Cst. Mule and Cst. Blaney were diligent in both providing L.L. with his rights and making sure that he understood them.

[136] Finally, although the accused was not released from detention after the Charter breaches but before the statement was taken, this factor is not particularly significant as L.L. exercised his right to counsel after the breaches but before the statement was taken.

[137] These six points are not an exhaustive list. They are simply a helpful framework with which to analyze whether what has transpired is a fresh start. However, when I step back and consider all of the evidence in this case, I would observe that the two Charter violations both involve identifying what charges L.L. was facing. In respect of the failure to tell him about the possibility of an arson charge, that issue was remedied when he was arrested the second time. In respect of the flee police, that count was remedied before he had even spoken to Cst. Blaney. I also note that the count of flee police is a count that, while not correct, would have informed L.L. that his departure from the back of the cruiser was an issue that had placed him in legal jeopardy.

[138] In addition, L.L. had the opportunity to speak to duty counsel prior to giving his statement to Cst. Blaney, and was aware of the full gamut of charges that he was facing. In light of that fact, I cannot conclude that the evidence was "obtained in a manner" that violated the Charter. As a result, I am not ordering the exclusion of the statement under s. 24(2).

The Grant Test

[139] Given my conclusion that there was a "fresh start" prior to L.L. being interviewed, I will only briefly review the application of the Grant test to the two Charter breaches that I have identified.

[140] The three factors that must be considered in determining whether evidence obtained in a manner that violates the Charter are:

a) The seriousness of the Charter-infringing state conduct;

b) The impact of the breach on the accused's Charter-protected interests; and,

c) Society's interest in the adjudication of the case on its merits.

[141] I will briefly discuss each of these factors in turn. On the first factor, I am required to consider the conduct on a scale of culpability (Beaver, at para. 120). These two breaches are on the low end of culpability. In both cases, they can be explained as inadvertent errors in a chaotic situation, and they are both rectified, in the sense that the accused is provided with correct information, before any further steps are taken. This factor would, at most, marginally favour the exclusion of the evidence.

[142] This brings me to the second factor, the effect of the breaches on L.L. The fact that the two breaches were remedied before L.L. either spoke to counsel or provided a statement to Cst. Blaney means that the impact on him of these breaches is relatively limited. He was working with full information by the time he obtained advice from counsel the second time, and he explicitly knew that his jeopardy had changed between his first and second conversations with duty counsel. This factor strongly favours the inclusion of the evidence.

[143] On the societal interest factor, I note that this line of inquiry asks whether the truth-seeking function would be better served by the admission or exclusion of the evidence: Beaver, at para. 129. The factors under this line of inquiry include the reliability of the evidence, the importance of the evidence to the prosecution's case, and the seriousness of the offence at issue. The evidence, as I have already set out, is reliable. It is a voluntary statement. The importance to the prosecution's case is a lesser concern, as the prosecution would have been able to proceed with a trial regardless of whether the statement was admissible. Finally, the offences in this case are serious. The third factor also strongly favours admission of the evidence.

[144] For these reasons, had I found that the evidence was obtained in a manner that violated the Charter, I would have still permitted the Crown to rely on it.

Conclusion

[145] For the foregoing reasons, I concluded that the statement given by L.L. to Cst. Blaney on June 16th, 2019 was both voluntary and admissible. I also determined that no other remedy under s. 24(2) of the Charter should be considered.

LeMay J.

Released: September 8, 2025