R v Barton, 2013 ABQB 673

Court of Queen ’ s Bench of Alberta Citation: R v Barton, 2013 ABQB 673 Date: 20131118 Docket: 120294731Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Bradley David Barton Accused Restriction on Publication Preliminary Inquiry – See the Criminal Code,

section 539 . By Court Order, this decision and the evidence given in the preliminary inquiry must not be published, broadcast, or transmitted in any manner. NOTE: This decision is available from the court file, and it may be published after the accused is discharged after a preliminary inquiry or, if the accused is committed to stand trial, after the end of the trial. Trial information in Absence of Jury – See the Criminal Code , section 648(1). Permission having been given to the jurors to separate, information concerning this portion of the trial must not be published, broadcast, or transmitted in any manner.

NOTE: This decision is available from the court file, and it may be published after the jury retires to consider its verdict. Editorial Notice: The restriction on publication ended on March 18, 2015.

Corrected judgment: A corrigendum was issued on December 3, 2013; the corrections have been made to the text and the corrigendum is appended to this judgment. Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. ________________________________________ ______________ Reasons for Judgment on Voir Dire No. 1 of the Honourable Mr. Justice Robert A. Graesser _________________________________________ ______________ 1. Introduction . 4 2. Background . 4 3. Voluntariness . 8 4. Argument 8 A. The Applicant 8 B.

The Crown (Respondent) 11 5. Legal Analysis . 13 A. Timing Issues . 16 B. Application To Facts . 19 i. Before 8:30 a.m. 19 a. Was Mr. Barton Detained Between 8:10 a.m. and 8:30 a.m.? . 19 b. Constable Jones had no basis for a reasonable suspicion . 23 ii. After 8:30 a.m. 23 a. Subjective Reasonable Suspicion . 24 b. Objective Reasonable Suspicion . 24 c. Conclusion – Reasonable Suspicion Existed . 26 iii. Was Mr. Barton Advised as to the Reason For His Detention at that Time? . 26 (iv) Was Mr. Barton Properly Charter ed and Cautioned at that Time? . 30 C. Res Gestae . 31 6.

Summary . 31 A. There was no basis for Constable Jones to put Mr. Barton under investigative detention between 8:10 and 8:30 a.m. 31 B. Nothing changed between the time Mr. Barton was led to the police vehicle about 8:15 a.m. and 8:30 a.m. when Constable Jones placed him under investigative detention . 32

C. Investigative detentions are to be brief. Fifty minutes of investigative detention, which ultimately continued until approximately 3:00 p.m. (some seven hours) is not brief, resulting in Mr. Barton’s detention constituting a violation of his s. 9 rights . 32 D. Holding Mr. Barton for investigative detention was ineffective because he was not told of the reason for his detention. Thus his continued detention after 8:30 was arbitrary and a breach of his s 9 and s 10 rights 33 E. The Charter ing and cautioning of Mr. Barton at 8:30 a.m. were ineffective because Mr. Barton was not advised of his jeopardy . 33 F.

As a result, any information given by Mr. Barton, whether voluntary or not, was not obtained in breach of Mr. Barton’s s 10 (

b) rights . 34 7. Result 34 1. Introduction [ 1 ] Bradley Barton is charged with Criminal Code , RSC 1985, c C-46, s 231, first degree murder, in connection with the death of Cindy Gladue in Edmonton on June 22, 2011. [ 2 ] Mr. Barton was a long distance furniture mover from Ontario and was in Edmonton to deliver furniture to a residence east of Edmonton. [ 3 ] On this voir dire , Mr. Barton alleges that various statements made to Edmonton Police Service [“EPS”] Constables Jones and Sliwa were made in contravention of his ss 9, 10(a), and 10(

b) Canadian Charter of Rights and Freedoms,

Part 1, Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the “ Charter ”] rights. [ 4 ] Mr. Barton does not take issue with the voluntariness of the statements he made to Constables Jones and Sliwa. [ 5 ] He acknowledges that the onus is on him to prove a Charter violation on a balance of probabilities. [ 6 ] For clarification, only Charter breach was argued on this hearing. The parties have agreed that a Charter , s 24(2) remedy analysis, if any, will be left until all voir dires in this matter have been held. [ 7 ] The trial is set to continue before a jury in May, 2014. 2.

Background [ 8 ] At approximately 8:00 a.m. on June 22, 2011, Mr. Barton called 911 and reported that when he awoke in his room in the Yellowhead Hotel in Edmonton, he found a woman in the bathtub of his room. She was covered in blood. She was non-responsive, and when he attempted to rouse her, there was no response on her part. [ 9 ] He told the 911 operator, and a police dispatcher who also came on the line, that the woman (Ms. Gladue) had knocked on his door the evening before. She asked if she could use his shower. He let her in, and went to sleep or passed out. When Mr.

Barton woke in the morning, he found her in the bathtub. [ 10 ] Police dispatch sent a number of police units to the Yellowhead Hotel, including Constables Dukart and Sled (who were the first to arrive) and Constables Jones and Sliwa, who arrived shortly after. Sergeant Metselaar, who was the patrol supervisor for West Division of EPS, arrived shortly after Constables Jones and Sliwa, and he took charge of the scene and the investigation. The dispatcher had characterized the incident as reported by Mr. Barton as a suspected aggravated assault. When Constables Sled and Dukart arrived, Mr.

Barton was still in his hotel room and on the phone speaking with the dispatcher. A voice can be heard on the 911 call asking if he was Brad, and asking or telling him to hang up the phone. [ 11 ] When Constable Jones and his partner Constable Sliwa arrived, Constables Sled and Dukart were entering Mr. Barton’s hotel room. Constable Jones testified that he saw a man leaving the room by himself as Constables Sled and Dukart entered it. He stopped the man and asked him for identification. Mr. Barton produced his driver’s licence. Constable Jones testified that Mr.

Barton was cooperative, did not appear to be under the influence of alcohol or drugs, and responded to questions appropriately. [ 12 ] At that stage, all Constable Jones knew was that he had been dispatched to a possible aggravated assault. He learned as well that there was a woman covered with blood in the bathtub in the man’s hotel room. At some stage before 8:30 a.m. he overheard someone say that the woman may be dead. [ 13 ] Constable Jones testified that he was instructed by Sergeant Metselaar to take the man away from the scene.

He acknowledged on cross-examination that he may have been instructed to take the man to his police car and wait for further instructions.

He did not recall ever being instructed to place the man under investigative detention. [ 14 ] He and Constable Sliwa escorted Mr. Barton down the hall from the hotel room to the front lobby, and out to where their marked police car was parked. Mr. Barton was not searched and he was not placed in handcuffs. Constable Jones asked Mr. Barton to get in the back of the police car, and Mr. Barton complied. As Mr. Barton started to get in the police car, he spilled a cup of coffee he was carrying. Constable Jones asked him if he wanted another coffee and Mr. Barton said he did.

Constable Jones then went into the hotel coffee shop and got Mr. Barton another coffee, leaving Mr. Barton in the back of the police car and Constable Sliwa in the front. This was at approximately 8:15 a.m. [ 15 ] The police car has a Plexiglas shield or screen between the front and back seats and while conversation can still take place with the shield there, Constable Jones said that you had to speak louder to be heard and understood.

The back doors of the police car have no handles on the inside, so once someone is in the back seat and the door closed, a person cannot let themselves out. [ 16 ] When Constable Jones returned with the coffee a few minutes later, he sat in the front of the police car with Constable Sliwa. He had heard from someone (he does not recall whom) that the woman in the room might be dead. [ 17 ] At some point between 8:15 and 8:30 a.m., and before Mr. Barton was placed under investigative detention, Constable Jones testified that Mr. Barton was voluntarily trying to tell Constable Jones about Mr.

Barton coming to Edmonton on June 19. Constable Jones said he was not trying to elicit information. The effect of the information given was that he first saw the woman outside the bar at the hotel when he was having a smoke with a group of men. The woman said “hi” to the group and asked for a smoke. [ 18 ] Mr. Barton had a discussion of some sort with Constable Sliwa after he had been put in the police car. Constable Sliwa testified that this was right after Constable Jones gave Mr. Barton the fresh coffee, placing the timing before Mr. Barton was placed under investigative detention. Mr.

Barton mentioned the name “Kevin Ackerson”, said something about him being three or four rooms down, and gave police the telephone number (414) 806-[...]. That number turned out to be the cell phone of Kevin Atkins, a co-worker of Mr. Barton’s. The constable had no other notes or memory concerning Kevin Ackerson (or Atkins). Constable Jones agreed on cross- examination that the number may have been provided by Mr. Barton asking Constable Jones to call Mr. Ackerson (Atkins) to proceed with a job without Mr. Barton. [ 19 ] Before 8:30 a.m., Constable Jones was instructed to take Mr.

Barton to the homicide department at police headquarters. There is no indication that he told Mr. Barton that he was going to do so, although I believe that Mr. Barton was likely told at least that he was being taken to police headquarters. [ 20 ] At about 8:30 a.m., Constable Jones placed Mr. Barton under investigative detention on his own initiative. He did this after thinking that Mr. Barton had had something to do with the alleged aggravated assault and felt he should put Mr. Barton under investigative detention. He Charter ed and cautioned Mr. Barton. He did not tell Mr.

Barton that he had heard the woman might be dead. He did not tell Mr. Barton he was being taken to the “homicide department”. He did not tell Mr. Barton why he was placing him under investigative detention other than that he may have had something to do with “it”. The “it” was not specified. He either said that it was “because of the nature of the incident” or “because of the nature of the allegation”. When asked if he wanted to contact a lawyer, Mr. Barton replied, “No, I didn’t do anything.” [ 21 ] Shortly after that, he told Constable Jones that “I didn’t do anything.

I’m married and don’t do this stuff.” [ 22 ] Mr. Barton told Constable Jones that he had been drinking with some men the evening before, and he gave Constable Jones a telephone number which Mr. Barton said had been provided to him by one of these men. The phone number, (403) 999-5006, is the cell phone number of John Sullivan, a co-worker of Mr. Barton. All Constable Jones knew at the time, however, was that the number was one that had been given to Mr. Barton by an unnamed drinking companion. [ 23 ] After that, Mr.

Barton gave Constable Jones the names Paul and Allied, and said something about Paul and one or two others sleeping in the truck (referring to a moving truck as all of these people were involved in the long distance furniture moving business). [ 24 ] Constables Jones and Sliwa then took Mr. Barton to the homicide department at police headquarters, leaving the Yellowhead Hotel parking lot at about 8:40 a.m. There was no conversation between Mr. Barton and Constable Jones during the drive or at police headquarters. [ 25 ] They arrived at police headquarters about 9:00 a.m. and Mr.

Barton was taken to the homicide department on the third floor. He was placed in a “soft room” (an interview room with comfortable chairs) and turned over to homicide detectives. [ 26 ] Constable Sliwa testified as to his involvement and in virtually all respects confirmed Constable Jones’s account, other than his evidence that Sergeant Metselaar told Constable Jones to place Mr. Barton under investigative detention. Constable Sliwa testified that he did not consider that Mr.

Barton was under investigative detention before they were told to take him to police headquarters, which was shortly before Constable Jones placed Mr. Barton under investigative detention at 8:30 a.m. [ 27 ] It is a fair observation from the evidence given by Constable Jones and Constable Sliwa that the discussions with Mr. Barton were friendly. Mr. Barton was cooperative. He was not handcuffed and was neither searched by Constable Jones nor Constable Sliwa. Mr. Barton was never touched by either EPS officer.

He needed no particular direction to accompany them, did not ask to leave, and did not protest in any way when he was placed in the police car. Voices were not raised. Mr. Barton was, however, never told that he was free to go. [ 28 ] I would not describe the discussions between Mr. Barton and Constable Jones as an interrogation in the sense of it being a questioning about Mr. Barton’s knowledge of what had occurred or his role in it. Both Constable Jones and Constable Sliwa denied questioning Mr. Barton or trying to elicit information other than the initial request for identification.

This is certainly not a case where the police are alleged to have failed in their duty to hold off questioning after a detainee has expressed a wish to exercise his right to counsel.

[ 29 ] Sergeant Metselaar and Constables Dukart and Sled also testified on the voir dire . There were some inconsistencies in the evidence given by the various witnesses, but for the purpose of this voir dire , the only significant discrepancy was in relation to the placing of Mr. Barton under investigative detention. Sergeant Metselaar testified that he told Constables Jones and Sliwa to put Mr. Barton under investigative detention and put him in their police car. This was shortly after he arrived on scene, at approximately 8:10 a.m. Constable Jones denied receiving instructions to place Mr.

Barton under investigative detention, and testified that he had made the decision to do so himself. He was unsure why, but was clear in his evidence that it was his decision. [ 30 ] I have no reason to doubt Sergeant Metselaar’s evidence that he intended to have Mr. Barton placed under investigative detention right away. He said that to Constable Sliwa, who understood that was the instruction to himself and Constable Jones. [ 31 ] However, I also have no reason to doubt Constable Jones’s account that he understood he and his partner were to take Mr.

Barton away from the hotel room and to their car, and then wait for further instructions. If Sergeant Metselaar instructed him to place Mr. Barton under investigative detention, Constable Jones did not hear or understand that. There is no suggestion that Constable Sliwa passed that direction on to Constable Jones. [ 32 ] All of the police witnesses testified that this was a dynamic scene. There were a number of police officers present, emergency medical technicians arrived shortly, and there were a number of tasks to be done.

It is not surprising that there are discrepancies in the evidence as to who said what to whom. [ 33 ] On balance, I accept Constable Jones’s evidence as to what he understood he was to do: get Mr. Barton away from the hotel room, place him in the police car and wait for further instructions. Constable Jones was a good witness (as was Sergeant Metselaar). Reconciling their evidence satisfies me that there was a communications disconnect between them. [ 34 ] For the purposes of this voir dire , I do not think Sergeant Metselaar’s intentions are relevant. It was Constable Jones who placed Mr.

Barton under investigative detention. His evidence was that he did so on his own. As a result, it is Constable Jones’s knowledge and information and his state of mind that must be assessed on this application. [ 35 ] Mr. Barton did not testify on the voir dire . Mr. Sullivan testified as a Crown witness, and Mr. Atkins testified as a defence witness. None of the information provided by them was known to Constable Jones at the time of his conversations with Mr. Barton, so I need not deal with their evidence in this decision, other than in relation to what was known by Mr. Barton as expressed to Mr. Sullivan.

According to Mr. Atkins, Mr. Barton had no discussions with Mr. Atkins the morning of June 22. [ 36 ] Further, as Constable Jones did not recall speaking to Constable Dukart or Constable Sled that morning, their evidence is of no assistance on this voir dire . 3. Voluntariness [ 37 ] Counsel for Mr. Barton acknowledged that for the purposes of this voir dire , any information given by Mr. Barton was not coerced or improperly induced, so his statements were voluntary in the common law sense.

It was thus not necessary for the Crown to prove the voluntariness of any of the statements made to Constables Jones or Sliwa. 4. Argument A. The Applicant [ 38 ] Mr. Barton argues that he was effectively placed under detention shortly after 8:10 a.m. when he provided identification to Constable Jones. At that time, he was asked to accompany Constables Jones and Sliwa. His counsel argues that there can be no doubt that Mr. Barton was detained, he was led down the hotel hallway by two uniformed police officers, then placed in the back seat of a marked police car where Mr.

Barton was locked in and unable to leave on his own accord. While there was no evidence of any physical detention other than his being locked in the back seat of the police car, the circumstances support the conclusion that Mr. Barton was psychologically detained by being led out of the room, led to the car, and placed inside. [ 39 ] Mr. Barton was not Charter ed or cautioned until approximately 8:30 a.m., after Constable Jones told him he was under investigative detention. It is common ground that Mr.

Barton was never given a detailed reason for his detention, and Constable Jones never provided him with any information about the investigation. Mr. Barton was not told that Constable Jones had heard that the woman in the bathtub might be dead. [ 40 ] Mr. Barton’s arguments are as follows: 1. There was no basis for Constable Jones to put Mr. Barton under investigative detention. Constable Jones had no reasonable suspicion that Mr. Barton had committed any crime. Thus the detention of Mr. Barton after he had identified himself shortly after 8:10 a.m. was arbitrary and a breach of Mr.

Barton’s Charter , s 9 rights. 2. Nothing changed between the time Mr. Barton was led to the police vehicle about 8:15 a.m. and 8:30 a.m. when Constable Jones placed him under investigative detention. Thus the arbitrary detention and a breach of Mr. Barton’s s 9 rights continued. 3. Further, investigative detentions are to be brief. Fifty minutes of investigative detention, which ultimately continued until approximately 3:00 p.m. (some seven hours) is not brief, resulting in Mr. Barton’s detention constituting a violation of his s. 9 rights. 4. If at 8:30 a.m.

Constable Jones had reasonable grounds to suspect that Mr. Barton was connected to a crime, his holding Mr.

Barton for investigative detention was ineffective because Mr. Barton was not told of the reason for his detention. Thus his continueddetention was arbitrary and a breach of his Charter, ss 9 and 10(

a) rights. 5. The Chartering and cautioning of Mr. Barton at 8:30 a.m. was ineffective because Mr. Barton was not advised of his jeopardy. 6. As a result, any information given by Mr. Barton, whether voluntary or not, was obtained in breach of Mr. Barton’s Charter, s10(

b) rights. [41] As noted above, the consequences of any Charter breaches are to be determined at the end of all of the voir dires in thismatter. There was no evidence taken with respect to Charter, s 24(2) and all issues concerning remedy were left for later determination,if any breaches are found in this or in other voir dires. [42] Mr.

Barton cites a number of cases in support of his arguments: R v Mann, 2004 SCC 52, [2004] 3 SCR 59 R v Suberu, 2009 SCC 33, [2009] 2 SCR 460 R v Black, (SCC), [1989] 2 SCR 138, 98 NR 281 R v Smith, (SCC), [1991] 1 SCR 714, 122 NR 203 R v Evans; R v DiPietro, (SCC), [1991] 1 SCR 869, 124 NR 278 R v Borden, (SCC), [1994] 3 SCR 145, 119 DLR (4th) 74 R v Wasser, (ON SC), [2007] OJ No 641 (QL), 153 CRR (2d) 35 (Ont Sup Ct J), reversed on other grounds 2010ONCA 429, 263 OAC 246 R v Binning, 2006 BCSC 576, 70 WCB (2d) 483 R v Chan, [2007] AJ No 1578 (QL) (Alta QB) R v St.

Louis, [2007] OJ No 1655 (QL), 73 WCB (2d) 749 (Ont Sup Ct

J) R v Suberu, 2007 ONCA 60, 85 OR (3d) 127, affirmed 2009 SCC 33, [2009] 2 SCR 460 R v Henry, 2005 SCC 76, [2005] 3 SCR 609 R v White, (SCC), [1999] 2 SCR 417, 174 DLR (4th) 111 [43] The essence of Mr. Barton’s argument on detention is that the police did not have reasonable grounds to suspect that Mr.Barton was connected to a particular crime and that his detention was therefore necessary. Mr. Barton argues that R v Mann holds thatinvestigative detention may only be employed if there are reasonable grounds to believe that a crime has been committed. No one knewat that time whether Ms.

Gladue had died of natural causes or by some unlawful act. [44] Mr. Barton argues that Constable Jones had no reasonable grounds to suspect that any crime had been committed, let alonethat Mr. Barton was connected with a crime. All he knew was that he had been dispatched to a hotel room after Mr. Barton had phoned911. There was a woman covered in blood in the bathtub in the room. He saw Mr. Barton leave the room. The dispatcher had describedthe call-out as a suspected aggravated assault. By 8:30 a.m. Constable Jones had learned that the woman might be dead.

Sometime before8:30 a.m., Sergeant Metselaar instructed him to take Mr. Barton to the homicide department at police headquarters. Constable Jonesmight have speculated from that direction that the investigation had by that time determined that the bloody woman in the bathtub wasbelieved to be dead. [45] Constable Jones acknowledged that he did not have reasonable and probable grounds to arrest Mr. Barton at any time duringtheir interaction. [46] Counsel for Mr. Barton submits that Constable Jones did not have sufficient information to form reasonable grounds to evensuspect that a crime had been committed.

He did not know the nature or potential cause of the woman’s injuries. He did not know theextent of the woman’s injuries, or that she had indeed died. He knew nothing about any involvement of Mr. Barton in any crime. He onlyknew that Mr. Barton had made the 911 call, and that he had been in the room where the woman was found. [47] According to defence counsel, there was never a reasonable basis for Mr. Barton to be detained and thus his detention byConstable Jones from shortly after 8:10 a.m. until he was turned over to homicide at about 9:00 a.m. was arbitrary and constituted abreach of Mr.

Barton’s s. 9 rights. [48] Defence counsel points to the evidence of several Crown witnesses to buttress the argument that Constable Jones did not havegrounds to hold Mr. Barton in an investigative detention. Detective Lakusta stated, after the fact, that he did not think that there weresufficient reasons for an investigative detention before his involvement, which began shortly after Constables Jones and Sliwa arrived atthe hotel. Detective Robertson, on the other hand, said he was “comfortable” with Mr.

Barton’s continued detention after hisinvolvement at about 9:00 a.m. [49] I do not find the evidence of either detective helpful to the analysis of the reasonableness of Constable Jones’s actions. Neitherwas put forward as an expert on the point, and I doubt that expertise on this “ultimate issue” would be helpful to the Court in any event.

[50] Further, counsel argues that even if Constable Jones had some reasonable basis to detain Mr. Barton, detention startedimmediately after Mr. Barton produced his driver’s licence at approximately 8:10 a.m., and he should have been advised as to thereasons for his detention and properly Chartered and cautioned at that point. The absence of that process affects the admissibility ofanything said to Constable Jones or any information provided between 8:10 and 8:30 a.m. [51] Counsel also argues that when Constable Jones formally placed Mr. Barton under investigative detention at 8:30 a.m. hefailed to advise Mr.

Barton why he was being detained. Being told that he was being detained “because of the nature of the incident” or“due to the nature of the allegation” was insufficient. All of these circumstances made his detention from 8:10 a.m. onwards a violationof his s 9 and 10(

a) rights. [52] Counsel points to passages in R v Mann which he says demonstrate that investigative detention is only available to the policewhen they have reasonable suspicion that a specific crime has been committed. [53] He further argues that in those circumstances, investigative detention must be accompanied by disclosure of the specific crimethe detainee is suspected of being involved in. [54] With respect to the s 10 rights violations, Mr. Barton argues that he was not made aware of the nature of his jeopardy. Thisargument flows out of Constable Jones’s failure to advise Mr.

Barton of the reasons for his detention, his failure to identify a specificcriminal offence, and his failure to tell Mr. Barton that he had heard that the woman might be dead. Allegedly those deficiencies amountto a violation of Charter, ss 10(

a) as well as 10(b), because Mr. Barton had insufficient information to make decisions about his furtheractions and responses. B.

The Crown (Respondent) [55] The Crown cited the following cases relating to Charter ss 9 and 10: R v Suberu, 2009 SCC 33, [2009] 2 SCR 460 R v Grant, 2009 SCC 32, [2009] 2 SCR 353 R v Simpenzwe, 2009 ABQB 579, 512 AR 49 R v Mann, 2004 SCC 52, [2004] 3 SCR 59 R v Simpson; Simpson v Canada (1993), (ON CA), 12 OR (3d) 182, 60 OAC 327 (Ont CA) R v Kang-Brown, 2008 SCC 18, [2008] 1 SCR 456 R v Nesbeth, 2008 ONCA 579, 240 OAC 71, leave denied [2009] SCCA No 10 R v Clayton, 2007 SCC 32, [2007] 2 SCR 725 R v Godoy, (SCC), [1999] 1 SCR 311, 168 DLR (4th) 257 R v Evans, (SCC), [1991] 1 SCR 869, 63 CCC (3d) 289 R v Borden, (SCC), [1994] 3 SCR 145, 119 DLR (4th) 74 R v Latimer, (SCC), [1997] 1 SCR 217, 142 DLR (4th) 577 R v Martin (1998), (BC CA), 108 BCAC 1, 52 CRR (2d) 362 (BCCA) R v Williams, 2007 BCSC 184, 72 WCB (2d) 256 R v Hall, 2007 ABQB 59, 72 WCB (2d) 262 R v Perret, 2007 ABPC 258, 424 AR 223 R v Orbanski; R v Elias, 2005 SCC 37, [2005] 2 SCR 3 R v Carrier, 2007 ABQB 719, 428 AR 190, leave denied 2008 ABCA 134, 429 AR 107 R v Lund, [2008] AJ No 1516 (QL), 69 MVR (5th) 21 (Alta QB), leave denied 2008 ABCA 373, 440 AR 362 [56] The following were cited with respect to the Crown’s argument on res gestae: Ratten v R, [1972] AC 378 (UKPC) R v Clark (1983), (ON CA), 1 DLR (4th) 46, 42 OR (2d) 609 (Ont CA), affirmed 1 DLR (4th) 46 n, 42 OR (2d) 609(SCC) R v Andrews, [1987] 2 WLR 413 (UKHL)

R v Hodgson, (SCC), [1998] 2 SCR 449, 163 DLR (4th) 577 R v Oickle, 2000 SCC 38, [2000] 2 SCR 3 R v Singh, 2007 SCC 48, [2007] 3 SCR 405 R v Whittle, (SCC), [1994] 2 SCR 914, 116 DLR (4th) 416 [57] The Crown argues: 1. There was no detention of Mr. Barton in the context of Charter, s 9 until he was placed under investigative detention at 8:30 a.m.by Constable Jones. He voluntarily remained with police and there was no “significant physical or psychological constraint” (citing R vMann and R v Simpenzwe) during the brief period from 8:10 to 8:30 a.m.; 2.

The R v Mann requirements for investigative detention – reasonable suspicion and reasonable necessity - were met at that stage; 3. Reasonable suspicion is defined as “a constellation of objectively discernible facts which give the detaining state authorityreasonable cause to suspect that the subject is implicated in the activity under investigation.” (R v Simpson at p 501); 4. Reasonable suspicion as to involvement in “criminal activity” is required (R v Kang-Brown); 5.

Knowledge of a specific or particular crime having been committed is not required, for example reasonable suspicion ofpossession of “contraband” was sufficient in R v Nesbeth, and reports of “men with guns” was sufficient in R v Clayton, such that R vSimpson overstates the degree of particularity needed; 6. Necessity is satisfied having regard to the extent of the liberty at stake and the extent of the intrusion into the detainee’s liberty(from R v Clayton); here a serious injury and possible death was involved and Mr. Barton had called in the incident, seeking policeassistance; 7.

Brevity is not well defined in the case law and is determined on the reasonable necessity standard. Here, the length of timebetween being detained (8:30 a.m.) and arriving at police headquarters (9:00 a.m.) was well within that standard. Indeed, some of theinformation was provided before Mr. Barton was detained at 8:30 a.m., and no further information was provided after about 8:40 a.m.when Mr. Barton and the two EPS constables began the drive to police headquarters. 8.

As for Charter, s. 10, notifying the detainee as to the reason for his detention is satisfied by either telling him why with accuracy(R v Evans) or through what the accused “can reasonably be supposed to have understood” (R v Latimer); 9. Obviousness and reasonable inferences may be used to explain the reason for detention (R v Martin); 10. The same obvious and reasonable inferences can be used to provide the nature and extent of jeopardy faced by Mr. Barton. Hehad called police. In his conversation with Mr. Sullivan, it is clear that he knew that the police would make this not a good day for himonce they came.

He had been in the room with the woman. He knew the woman was at least seriously injured if not dead, and was lyingcovered in blood and unresponsive in his bathtub. The bathroom, which Mr. Barton acknowledges he had been in, can only be describedas horrific with blood everywhere. He would clearly know that he would be suspected of having involvement in the woman’s condition. 5. Legal Analysis [58] Sections 9 and 10 of the Charter provide: 9. Everyone has the right not to be arbitrarily detained or imprisoned. 10. Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; (

b) to retain and instruct counsel without delay and to be informed of that right; ... [59] After the issues on this voir dire were argued, the Supreme Court of Canada issued two decisions that address the concept ofand threshold for reasonable suspicion: R v Chehil, 2013 SCC 49 and R v MacKenzie, 2013 SCC 50. [60] R v Chehil summarizes much of the state of the law on reasonable suspicion. [61] While that case deals with the reasonable suspicion necessary to justify a sniffer dog search under s 8 of the Charter, I cannotsee that the underlying principles for reasonable suspicion for search differ from the principles for reasonable suspicion for investigativedetention.

The judgment also does not explicitly limit itself in that manner. [62] Karakatsanis J speaking for a unanimous court described a number of principles applicable to reasonable search. Starting atpara 28, she noted that: The fact that reasonable suspicion deals with possibilities rather than probabilities necessarily means that in some cases the police willreasonably suspect that innocent people are involved in crime. [63] A number of key principles can be distilled from Justice Karakatsanis’ analysis:

• reasonable suspicion must be assessed against the totality of the circumstances (para 29); • there must be a sufficiently particularized constellation of factors as opposed to a “generalized suspicion” (at para 30); • the suspicion need not be the only inference that can be drawn from a particular constellation of factors (at para 32); • exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors (at para 33); • there is no duty to seek out exculpatory factors or rule out possible innocent explanations (at para 34); • the objective facts must be indicative of the possibility of criminal behaviour (at para 35); • the evidence does not need to consist of unlawful behaviour, nor does it need to be evidence of a specific known criminal act (at para 35); and • a nexus must exist between the suspected criminal conduct that and the investigative technique employed (at para 26). [ 64 ] She continued at para 45: Under the Collins framework, the onus is on the Crown to show that the objective facts rise to the level of reasonable suspicion, such that a reasonable person, standing in the shoes of the police officer, would have held a reasonable suspicion of criminal activity. and at para 46: The constellation of facts must be based in the evidence, tied to the individual, and capable of supporting a logical inference of criminal behaviour.

Finally, at para 47: An officer’s training and experience may provide an objective experiential, as opposed to empirical, basis for grounding reasonable suspicion. However, this is not to say that hunches or intuition grounded in an officer’s experience will suffice, or that deference is owed to a police officer’s view of the circumstances based on her training or experience in the field … [ 65 ] R v MacKenzie turns on its facts as the applicable law had been decided in R v Chehil .

It notes that there must be a reasonable possibility that a crime has been committed, and that there needs to be more than an officer’s hunch or suspicion. The suspicion must be specific and not generalized.

There, for the majority, it was sufficient that the officer suspected that a drug offence had been or was being committed. [ 66 ] Moldaver J, speaking for the majority, stated at paras 84 – 86: [84] Having concluded as much, I pause here to reiterate that courts , under the banner of rigorous judicial oversight, must guard against upping the ante for reasonable suspicion to the point that it virtually mirrors the test for reasonable and probable grounds .

To do so would be especially problematic given the clear warning in Chehil that “ reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard ” (para. 27). [85] The reasonable and probable grounds standard is a more demanding standard than the reasonable suspicion standard. It follows inexorably from this that more innocent persons will be caught under a reasonable suspicion standard than under the reasonable and probable grounds standard.

That is the logical consequence of the way these standards have been defined. [86] However unappealing that result may be, we should candidly acknowledge that it is the foundation on which Kang-Brown, A.M., and the other reasonable suspicion cases have been built. Indeed, Karakatsanis J. does just that in Chehil, explaining that the “factors that give rise to a reasonable suspicion may also support completely innocent explanations” because the “reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so” (para. 32 (emphasis in original)).

We accept this cost to individual privacy as a reasonable one in part because properly conducted sniff searches are “minimally intrusive, narrowly targeted, and highly accurate” ( Chehil , at para. 28 ).

In short, we have judged the trade-off between privacy and security to be acceptable . [Emphasis added.] [ 67 ] From R v Chehil and R v MacKenzie , and the cases cited by the parties I distill the following principles for what constitutes a reasonable suspicion: • Reasonable suspicion is derived from a constellation of objectively discernible facts ( R v Mann ; R v Simpson ; R v Chehil ); • A reasonable suspicion is not hunch nor intuition ( R v Simpson ); • Reasonable suspicion is not merely a sincerely held subjective belief ( R v Kang-Brown at para. 75 ); • It is not necessary to pinpoint the crime with absolute precision ( R v Nesbeth ; R v Chehil ); • Reasonable suspicion of criminal or unlawful conduct or activity is sufficient ( R v Chehil ; R v MacDonald ); • The reasonable suspicion threshold and subsequent detention on that basis must reflect a proper balance between the rights and duties of police to investigate, and the liberty and privacy rights of individuals.

The Court should focus on the nature of the crime, what is known by the police at the time about the suspect and the crime, and the extent to which the detention was reasonable, responsive or tailored to the circumstances ( R v Clayton );

• The overall reasonableness of a suspicion-based detention is assessed by the extent to which the interference with the suspect’s liberty is necessary to perform the police duties and the nature and extent of the interference ( R v Mann ); • The duration of the detention depends on reasonable necessity and the circumstances ( R v Mann ), duration is thus contextual; and • Advising a detainee of the nature and extent of the detainee’s jeopardy does not require the police to tell the detainee the obvious; the detainee’s own knowledge and reasonable inferences from his or her knowledge can be drawn ( R v Latimer ; R v Carrier ; R v Lund ).

A. Timing Issues [ 68 ] There are two timing issues with respect to investigative detention: 1. the time from the point of detention to the point where the detainee is Charter ed and cautioned, and 2. the overall length of the detention until a person is charged with an offence or released. There is a limit to the length of time a person can be detained under investigative detention. At some stage, the police must either charge the person or let them go. It is not an indefinite interference with a person’s liberty.

The acceptable duration will depend on the circumstances. [ 69 ] However, an excessive length of time for detention does not nullify a valid investigative detention from the outset. Duration is a ticking clock and it reaches a time when the police must decide to arrest or release the detainee. It is at that critical time continued investigative detention becomes a breach of Charter , s. 9 and not before.

Statements, information and evidence obtained after that time may be subject to exclusion, but that does not affect what has been gathered before the critical release or charge point. [ 70 ] I must confess to having difficulty with and being confused by the terminology used in the cases. There is a difference between investigative detentions which do not require the giving of reasons, Charter ing and cautioning (such as brief, valid roadside stops), and R v Mann -like investigative detentions which do. The first might be characterized as “delays” rather than “detentions”.

Some scenarios have been characterized as being outside scrutiny under Charter , ss 9 and 10, while others have been characterized as being subject to the Charter . However, both are commonly referred to as investigative detentions. [ 71 ] Essentially, the dividing point is whether the time taken to give reasons for a detention, and Charter and caution the detainee would unduly prolong the detention.

If the detention is intended to be brief, it might better be characterized as an “investigative delay” or a “delay” instead of as an investigative detention. [ 72 ] These two apparently operationally distinct forms of investigation are illustrated in R v Suberu , 2009 SCC 33 , [2009] 2 SCR 460. While that case was cited as providing the authority for the immediate duty on detention to Charter and caution the detainee, and for the requirement that a detention ought to be reasonably brief, it also describes “investigative questioning”, which is short of investigative detention.

Investigative questioning does not require Charter ing and cautioning. [ 73 ] Presumably, if a person voluntarily attends with police for questioning or submits to questioning in non-detention circumstances, and then decides he or she wants to leave, the police might then consider using the investigative tool of investigative detention if at that stage they have reasonable suspicions of criminal involvement by the person. That would allow the police to detain (psychologically or physically) the person for the time reasonably necessary for the police to continue or complete their interview.

But at some stage, the police will have to determine if they have reasonable and probable grounds to arrest the person, otherwise the detention should end. There is a point when continued detention becomes unreasonable, and a breach of s 9.

But again, that process and the rights it protects are independent of and separate from Charter , s 10 rights and obligations to be informed of the basis for detention and the right to access legal counsel. [ 74 ] I also note that the change in character of an interview from being an interview of a witness or complainant to that of a suspect does not retroactively transform the entire interview into a detention of any kind.

The change in character requires advice, Charter ing and cautioning for any information provided after that time to be validly obtained, although at that stage the interview is not necessarily converted to an investigative detention. The person may still be free to leave. Whether that interview has become a detention will depend on the circumstances.

Suspects can be interviewed or questioned without being detained, as long as they have been advised of the reason for the questioning, cautioned and Charter ed. [ 75 ] I will try to use the terminology “investigative delay” or “delay” to describe situations where no reasons, Charter ing and cautioning are required, and as a consequence the interaction with police is outside the ambit of the Charter . I will use “investigative detention” for those interactions which involve Charter rights and fall under the R v Mann analysis.

I will use “interviews” for voluntary interactions between citizens and the police. [ 76 ] Brevity is a dividing line between investigative delays and investigative detention, and is essentially measured by the time it may take to give reasons and provide Charter ing and cautioning, and a reasonable time for the person to consult counsel if desired. Most, but not all, of the “brevity” cases are roadside ALERT cases, or cases involving other drinking and driving offences. [ 77 ] The cases dealing with “brevity” are generally those which test that interval.

The point usually arises when the detainee has said something in this interval, or the police have obtained some evidence during this interval. [ 78 ] Brevity is also a dividing line between lawful investigative detentions which are not an unreasonable limitation on the suspect’s liberty, and those which go past a reasonable time. Brevity therefore is measured by the overall duration of the detention, which depends on the circumstances including the seriousness of the suspected criminal activity and the complexity of the investigation.

There are few cases which test the duration of an investigative detention where the detainee has been properly advised as to reasons and Charter ed and cautioned.

[ 79 ] An interview may become an investigative detention (but not necessarily) if and when the police have reason to believe that the interviewee has become more than a witness or complainant and may be a suspect. At that stage, Charter ing and cautioning are required. Whether the suspect is detained at that stage is a separate question and will depend on the circumstances. [ 80 ] Delays do not require advice as to the reason for the delay, Charter ing or cautioning. As noted above, these are outside the Charter .

As soon as the time to Charter and caution is no longer disproportionate to the time needed to reasonably complete the investigation, the delay can no longer be characterized as brief. Giving reasons, Charter ing and cautioning become mandatory. In the absence of giving appropriate reasons, Charter ing and cautioning, such delays become contrary to s 10. The failure to give reasons, or to Charter and caution, does not result in a s 9 breach so long as the delay was lawful to begin with (based on reasonable suspicion or otherwise authorized by law such as roadside ALERT situations).

Later reasons, Charter ing and cautioning do not cure an otherwise unlawful detention from the outset, although they may begin either a valid investigative detention, or a non-detention interview of a suspect. [ 81 ] And despite reasons, Charter ing and cautioning, a lawful investigative detention can become unlawful under s 9 if the detention period extends longer than reasonably necessary in all of the circumstances. [ 82 ] Thus there are always time considerations with respect to delays and investigative detention. [ 83 ] As explored in cross-examination, duration may well vary with the seriousness of an offence.

Detaining a suspect in a shoplifting or minor mischief investigation would likely be expected to take much less time than investigating a major crime or homicide. Assessing the reasonableness of the duration requires looking at all of the circumstances of the particular investigation. [ 84 ] As stated in R v Mann , there is no specific time limit after which a lawful investigative detention becomes unlawful. It all depends on the circumstances. [ 85 ] In

summary, as time passes the various Charter rights move through a continuum:

a) a brief investigative delay places no Charter obligations on the police officer,

b) at some point an investigative delay becomes an investigative detention, requiring the detainee not only to be told of the reason for his detention, but also cautioned, Charter ed and provided an opportunity to exercise their s 10 rights, and if the detention continues in the absence of these requirements, the detention becomes unlawful under s 9 and s 10, and

c) even after a detained person is given reasons for detention, Charter ed, and cautioned, an investigative detention becomes unlawful under s. 9 because it cannot be a substitute for arrest; at a context-sensitive point the police have to decide whether to arrest the detainee or let him or her go, and if the detention continues past that point then again the detention is unlawful under Charter , s. 9. [ 86 ] The chief concern for this voir dire is the duration of the second stage.

Investigative detention has always been described as a brief measure which is lawful when the process strikes a balance between the state’s interest in investigating crime and the individual’s right to liberty. I will now apply those criteria to Mr. Barton’s circumstances on the morning of June 22, 2011. B. Application To Facts i. Before 8:30 a.m. [ 87 ] Was Mr. Barton detained after he identified himself and before he was placed under investigative detention at 8:30 a.m.? [ 88 ] Mr. Barton’s advances two arguments in relation to this period: 1. he was detained between 8:10 and 8:30 a.m., and 2.

Constable Jones had no basis for a reasonable suspicion on which to detain Mr. Barton during this period. a. Was Mr. Barton Detained Between 8:10 a.m. and 8:30 a.m.? [ 89 ] His first argument is that he was effectively detained shortly after 8:10 a.m. He says that at that time, Constable Jones had no reasonable suspicion to detain him because Constable Jones had insufficient information that any criminal conduct, let alone any specific crime, had been committed by Mr. Barton. This argument is that Constable Jones nevertheless detained Mr.

Barton and did not immediately advise him as to the reasons for his detention, and Charter and caution him. [ 90 ] This, Mr. Barton argues, was a breach of his Charter , ss. 9 and 10 rights. Anything said during the interval from 8:10 to 8:30 a.m. and that was heard by the police during this unlawful detention is evidence that was obtained contrary to s 9 and R v Mann . [ 91 ] Mr. Barton’s position is that he was physically and psychologically detained as soon as he was led to the police car. He was met by Constables Jones and Sliwa when he left the hotel room, and he had identified himself by about 8:11 a.m.

He was then led to the police car as Constables Jones and Sliwa waited for further instructions from Sergeant Metselaar. [ 92 ] Although he was neither searched, handcuffed, nor physically touched, Mr. Barton argues that it was obvious that at this point he was not free to go. He had two policemen escorting him and he was not offered the choice of not going with them. While the interaction was calm and friendly, the circumstances would reasonably lead to the conclusion that Mr. Barton was at this point psychologically, if not physically, detained. Mr.

Barton then became physically detained when he was placed in the police car around 8:15 a.m., a location from which he could not leave without police assistance.

[93] For this to be a breach of Mr. Barton’s Charter rights then this period of detention must be longer than the “brief” duration ofa lawful investigative delay. Mr. Barton cites several authorities for the proposition that a the 8:10 a.m. to 8:30 a.m. periods cannot be alegitimate investigative delay. [94] R v Wasser involved a 28-minute roadside detention. Even though police suspected Mr. Wasser was involved in a sexualassault, he was not advised as to the reason for his detention and he was not Chartered and cautioned.

The reason his detention wasunlawful, however, was not because of the delay but rather that the police had no reasonable basis to suspect that Mr. Wasser wasinvolved in criminal activity. They suspected he might in the future commit an offence. Evidence obtained was not admitted because ofthe arbitrary detention, lack of advice as to the reason for detention and Mr. Wasser’s jeopardy, and the absence of Chartering andcautioning. [95] This case is different from the scenario with Mr. Barton. The criminal activity which was the subject of police concern waspurely hypothetical – it had not yet happened.

Investigative detention does not allow for the detention of persons who may be suspectedof committing crimes in the future. This is the reason why there was no reasonable basis for the detention; Mr. Wasser, unlike Mr.Barton, had no nexus to what appeared to be criminal misconduct. [96] In R v Binning, the Court considered several detentions. A 45-minute roadside detention in relation to suspected drug offenceswas described in para 78 as “one which would not ordinarily be described as ‘brief’ in duration”.

The Court also found breaches of s 9and 10 because: 1. police failed to inform the detainees of their investigative detention and the reasons for it; 2. questioning commenced without any caution; and 3. no advice as to the right to counsel was given immediately after detention. [97] In that case, the accused had been kept at the roadside for 45 minutes before anything was done. Certainly duration of thatlength can rarely if ever be considered brief enough to constitute a “delay” rather than an investigative detention requiring reasons,Chartering and cautioning.

I do not think the same thing can be said for all 15-minute durations. It is certainly possible that 15 minutesmay exceed a reasonable time in some circumstances; it may be within permissible time lines in others. As stated in R v Mann, the legaleffect of detention depends on the individual circumstances and the fact scenario. I will consider the circumstances here later on. [98] In R v Chan, S. L. Martin J considered a 50-minute interaction between Mr. Chan and a constable. The constable stopped Mr.Chan for speeding. He was asked for identification and questioned about his driving.

The constable testified that the questioning was toensure that Mr. Chan was safe to continue driving. At some stage, the constable became suspicious of Mr. Chan. He continued toinvestigate and after receiving further information from another constable, told Mr. Chan he was under investigation for drugs. At thispoint Mr.

Chan was Chartered and cautioned. [99] Martin J described the crux of the case as being whether the constable had reasonable and probable grounds to detain Mr.Chan for investigative purposes relating to narcotics. [100] The grounds identified by the constable included some inconsistencies with the rental car contract, Mr.

Chan being unemployedbut found in a high end vehicle, he was taking a longer than necessary route to get home, that he was nervous, and someone with hisname had been previously investigated for criminal activity. [101] Martin J found that these reasons were insufficient to support the necessary reasonable suspicion. She concluded that hisdetention following the investigation of his speeding was arbitrary. [102] As with Binning, this case involved a fairly lengthy passage of time before Mr. Chan was given information as to the reasonsfor his detention.

However, the case turned on the absence in the first place of reasonable suspicion. I will deal with that separate issue ata later point in my analysis. [103] R v St. Louis discusses psychological detention. At para 14, citing R v Grant, (2006), (ON CA), 81 OR(3d) 1, 213 OAC 127 (Ont CA), varied in

part 2009 SCC 32, [2009] 2 SCR 353 and R v Therens, (SCC), [1985] 1 SCR613, 18 DLR (4th) 655, Dawson J held that psychological detention involves three elements: a police direction or demand to anindividual, the individual‘s voluntary compliance with the direction or demand, and the individual’s reasonable belief that there is nochoice but to comply. I note this definition was confirmed in the subsequent Supreme Court of Canada R. v.

Grant decision [104] Recognizing that the burden of establishing a Charter breach is on the accused, I am doubtful that the third element can beestablished without testimony from the detainee, or circumstances that show a coercive environment. Mr. Barton did not testify, andthere was nothing in his demeanor that would have suggested fragility on his part, or a susceptibility to pressure. [105] I do not see that this case is of assistance to Mr. Barton. [106] With respect to this initial period, 8:10 to 8:30 a.m., I am satisfied that Mr.

Barton was not detained within the meaning of s 9until 8:30 a.m. at the earliest when Constable Jones placed him under investigative detention. The circumstances indicate to me, andsatisfy me, that in that interval, Mr. Barton was in the category of someone to be interviewed. He was not at that stage specificallysuspected of anything in particular by Constable Jones. He did not address his mind to reasonable suspicion or investigative detention atthat time, and in my view it was not necessary for him to do so. [107] It was Mr.

Barton who called 911 to advise police that there was a non-responsive woman covered in blood in his bathtub. Headvised them that he had been the only other person in the room. He made the phone call voluntarily and remained on the phone untilpolice arrived. Until police arrived, he was free to go. Once police arrived, he was escorted out of the room and taken by ConstablesJones and Sliwa away from the scene to their police car to await instructions. Constable Jones only knew that Mr. Barton had called in

the police, and they were dispatched to a possible aggravated assault. The EPS officers were aware that there was an injured woman in the hotel room, and that she was in the bathtub covered in blood. They also saw Mr. Barton leaving the hotel room. [ 108 ] Constable Jones made no attempt to question Mr. Barton other than to obtain identification. There was no physical contact between them. There was nothing in Constable Jones’s or Constable Sliwa’s behaviour which could be described as oppressive, threatening or demanding. Their voices were calm. Mr. Barton was cooperative.

He asked no questions, and made no requests, other than to accept Constable Jones’s offer to replace his spilled coffee. He did not object in any way to following the constables to their car, or to getting in the car. He made no requests to leave. [ 109 ] In the circumstances of this case, no significant physical detention has been made out, and no psychological detention has been made out. This is not a situation where police find someone in the vicinity of a possible crime and decide to stop and interview the person. Mr. Barton requested their presence at the scene and waited for them.

He was not stopped from going anywhere; he told them he was not going anywhere. [ 110 ] In the ordinary course, someone who requests police assistance must surely expect to be questioned by the police as to why the assistance was requested, and what he or she knows about the circumstances. Police responding to a request for assistance, or to notification of possible criminal activity, is very different from instigating an investigation. I note that Mr. Barton at this point is fairly characterized as a witness to a traumatic and disturbing situation.

He needed to be removed from a potential crime scene and to facilitate the first responders, medical and law enforcement. [ 111 ] From 8:10 until 8:30 a.m., it was not necessary for Constables Jones or Sliwa to do more than they did.

Having regard to the nature of the possible criminal matter – aggravated assault – and the amount of police and EMT activity at the scene, it was in my view appropriate for Constables Jones and Sliwa to remove the person who had called in the incident and who was an obvious witness to something, for them to take the person away from the scene of the investigation and to wait for further instructions from a superior officer. [ 112 ] It was reasonable for Sergeant Metselaar to ask Constable Jones to take Mr.

Barton away from the scene, and to delay him for some period so he could be interviewed, rather than commence the interview before the woman’s condition could be assessed and the room where the incident occurred assessed to some degree. [ 113 ] The situation might have been different if Mr. Barton attempted to leave, or objected to waiting to be interviewed. But here, he acted as one would expect someone who had called 911 to act. He was cooperative, and did not object to any delays in being interviewed.

It would have been obvious to anyone at the Yellowhead Hotel between 8:10 a.m. when Constable Jones arrived and 8:45 a.m. when they left for police headquarters that there was an active investigation going on. That was an investigation that Mr. Barton had instigated with his 911 call. [ 114 ] Thus, I do not see that Mr. Barton was under any investigative delay or investigative detention during this period.

He was accompanying Constables Jones and Sliwa voluntarily, and in the capacity of a complainant or witness whose cooperation would be expected and whose detention would be considered unnecessary. [ 115 ] He was not stopped by police as was the case in R v Binning and R v Chan . Here, he instigated his involvement and interaction with the police himself. He was under no obvious impairments, was fully cooperative, non-complaining and expressing no concerns about remaining with police. There was no evidence of any psychological issues suggesting that Mr.

Barton felt that his liberty was being adversely affected. [ 116 ] I therefore reject this first branch of the Accused’s argument for this period. b. Constable Jones had no basis for a reasonable suspicion [ 117 ] The second aspect of Mr. Barton’s argument for this period is that between 8:10 and 8:30 a.m. Constable Jones had no reasonable suspicion on which to base the alleged detention (that I have rejected). [ 118 ] The cases cited by Mr.

Barton and those submitted by the Crown illustrate the broad range of factors that are relevant to determine the presence or absence of a reasonable suspicion capable of justifying detention short of arrest, and how the validity of an investigative detention is very much dependent on the facts of the scenario. As described in R v Mann , any review involves a “constellation of factors”, and there is no one factor which is determinative. [ 119 ] A reasonable suspicion requires an objective and a subjective basis.

The validity of the investigative detention depends on the information, knowledge and state of mind of the detaining officer, so it is the officer’s information and knowledge which determines the sufficiency of what is said about the reasons for detention. [ 120 ] In this case I have found Constable Jones a credible and reliable witness. He said at this point he had not considered whether he had a reasonable suspicion on which to hold. Mr. Barton via an investigative detention. [ 121 ] Constable Jones did not subjectively believe that he had reasonable suspicion to detain Mr.

Barton; he did not address his mind to the issue at that time. And I do not see from an objective point of view, that he should have. That disposes of the second branch of Mr. Barton’s argument for the 8:10 to 8:30 a.m. period. ii. After 8:30 a.m. [ 122 ] Mr. Barton was placed under investigative detention by Constable Jones at 8:30 a.m. By that time, he had been with the two constables for 20 minutes, and they had by that stage been instructed to take Mr. Barton to the homicide department at police headquarters.

[ 123 ] Mr. Barton says and there is no dispute on this point that now he was clearly detained. However, he argues that, as in R v Chan , Constable Jones had no basis for any reasonable suspicion that a crime had been committed or that Mr. Barton was involved in that crime in any way. In that sense Mr. Barton’s argument in is the same as the second branch of his approach to the 8:10 to 8:30 a.m. period. He was unlawfully detained, full stop. There were never grounds to place Mr. Barton under investigative detention.

Anything said to Constables Jones and Sliwa, regardless of Charter ing and cautioning, was taken unlawfully. [ 124 ] It is axiomatic to say that an unlawful investigative detention (i.e. one where the person has been detained in the absence of reasonable suspicion) is not cured by providing Charter ing and cautioning. Charter ing and cautioning did not turn an unlawful detention into a lawful one. So according to Mr.

Barton, the breach of s 9 continued. [ 125 ] This argument therefore relates solely to unreasonable investigative detention as a breach of Charter , s 9, and is therefore independent from any arguments over Charter ing and cautioning, and a breach of Mr. Barton’s Charter s 10 rights. [ 126 ] Was there reasonable suspicion at that stage to warrant detention? As I have previously indicated, a reasonable suspicion has a subjective and an objective component.

The reasonableness of detention in the first place is a subjective/objective test based on the knowledge of the person who places the detainee under detention. [ 127 ] The relevant knowledge is that of the person who orders detention, and if that knowledge is objectively insufficient the then detention is not saved by the knowledge of someone else connected with the investigation, but not known by the person who actually placing the detainee under investigative detention. a. Subjective Reasonable Suspicion [ 128 ] At 8:30 a.m., when Constable Jones advised Mr. Barton that he was under investigative detention, Mr.

Barton argues that he still had no reasonable suspicion to do so. Nothing had changed in the interval other than the passage of time. Constable Jones was unaware that the woman in the hotel room was dead; he had heard she might be, but that was not a change in the circumstances. Mr. Barton was not advised as to the reason for the investigative detention. [ 129 ] Mr. Barton does not concede that anything changed when Constable Jones learned that the woman might be dead, or by him having been told that he was to take Mr. Barton to the homicide department. [ 130 ] It is clear, however, that 8:30 a.m.

Constable Jones had addressed his mind to reasonable suspicion. He formed the opinion that he should place Mr. Barton under investigative detention. He did so on his own initiative. He may have been motivated by the passage of time, or by the direction from Sergeant Metselaar to take Mr. Barton to the homicide department at police headquarters, or by his observation of the investigation going on at the hotel. [ 131 ] In any event, whatever the reason, Constable Jones thought about and decided that investigative detention was appropriate.

The subjective element is satisfied, and it is not suggested that Constable Jones was acting in anything but good faith. b. Objective Reasonable Suspicion [ 132 ] That leaves whether Constable Jones had an objective basis to be suspicious that Mr. Barton should be detained during the investigation of the woman in his hotel room. [ 133 ] I first stress that I conclude that Mr. Barton was detained on the basis of Constable Jones’s knowledge and initiative, not an order from Sergeant Metslaar. In my opinion the analysis would be quite different if Constable Jones had been following Sergeant Metselaar’s instructions.

If so, he would be entitled to rely on his own knowledge plus whatever Sergeant Metselaar knew and which led Sergeant Metselaar to order an investigative detention. [ 134 ] I do not think that the person who decides an investigative detention is necessary and appropriate has to be the one to conduct the detention, and I do not think that an officer who has been instructed or requested to detain someone cannot do so if he or she does not know the reasons why the detention is required. [ 135 ] The officer who is simply following instructions is at a disadvantage if he has not been provided with the reasons for the detention, and accurate information as to the detainee’s jeopardy. [ 136 ] But the situation is quite different here.

Despite Sergeant Metselaar’s intention to have Mr. Barton detained, and his belief that he instructed Constable Jones to do so, Constable Jones did not rely on anything said to him by Sergeant Metselaar in connection with his decision to put Mr. Barton under investigative detention and to Charter and caution him. [ 137 ] Thus, the validity of the investigative detention can only be determined based on a review of Constable Jones’s subjective opinion and an objective look at the basis for it.

I note the manner in which the Supreme Court of Canada has recently stressed in R v MacKenzie , at para 84 that I “... must guard against upping the ante for reasonable suspicion to the point that it virtually mirrors the test for reasonable and probable grounds ...” and “... must be cautious not to conflate it with the more demanding reasonable and probable grounds standard.” [ 138 ] While Constable Jones had limited information about the events and Mr. Barton, in my view, what Constable Jones knew was sufficient to satisfy the objective requirement of investigative detention, he knew or was aware: 1. Mr.

Barton was in the room with the injured or deceased woman; 2. there had been a report of an aggravated assault; 3. the woman was in the bathtub, covered with blood;

4. that the hotel location had a significant police presence and emergency medical personnel were involved; 5. this investigation was not being treated as a minor matter, there were a large number of police officers and his sergeant present, this was obviously an investigation of a serious incident; 6. Mr. Barton was the only other person identified with the scene of the incident. [ 139 ] Perhaps stating the obvious, anyone in these circumstances could conclude that Mr.

Barton would be an obvious person to question, and because of the unknown but suspicious circumstances, it was also reasonable to suspect that if any criminal activity had taken place, Mr. Barton would be a logical (if not sole) suspect at that time. [ 140 ] If Constable Jones’s knowledge of the circumstances as at 8:30 a.m. is tested against the appropriate standard, it is clear to me that there was reasonable suspicion that a crime of violence had been committed against Ms. Gladue.

She was not found dead in bed with no signs of trauma; she was found lying in a bathtub covered in blood. [ 141 ] The objective element is thus met. I find that at 8:30 a.m. a basis for a reasonable suspicion existed, and it was appropriate (and indeed fair) for Constable Jones to place Mr. Barton under investigative detention at that time. c. Conclusion – Reasonable Suspicion Existed [ 142 ] When Constable Jones formally placed Mr. Barton under investigative detention at 8:30 a.m. it may not, in my view, have been necessary for him to do so. Mr. Barton was not objecting to staying.

He remained in the position of a person voluntarily cooperating with the police. He was not a detainee as contemplated by s 9. [ 143 ] Nevertheless, Constable Jones opted to place him under investigative detention. Obviously, his view of the situation had changed. Did he have reasonable suspicion to do so? To be valid, and at that stage not a breach of Mr. Barton’s s 9 rights, he had to have a reasonable suspicion as to Mr. Barton’s possible involvement in some potentially criminal conduct. He knew that he had been called to a possible aggravated assault. He knew Mr. Barton had called 911. He knew that Mr.

Barton had been in the room. He knew that the woman might be dead, and at a minimum was seriously injured. In my view, it was not unreasonable for Constable Jones to place Mr. Barton under investigative detention at the time. He knew that serious injury was likely involved and he knew that Mr. Barton had been in the room. Those facts alone create a reasonable suspicion that Mr. Barton may have been involved in something criminal in that room, with the injured woman. Constable Jones was not aware of any exculpatory information. [ 144 ] Another way of stating this is to say that Mr.

Barton has not satisfied me on a balance of probabilities that the investigative detention was unreasonable and that no reasonable suspicion existed. Indeed, I am satisfied on a balance of probabilities that reasonable suspicion did exist in Constable Jones’s mind, as objectively tested, at 8:30 a.m. iii. Was Mr. Barton Advised as to the Reason For His Detention at that Time? [ 145 ] By this point there was clearly time and appropriate circumstances to inform Mr. Barton with his Charter rights and caution him concerning statements, as well as disclose the reason for Mr. Barton’s investigative detention.

I conclude these steps were necessary. It cannot reasonably be argued that there was no proper basis for detention, so reasons, Charter ing and cautioning were unnecessary and deficiencies in those processes are irrelevant. Constable Jones chose to place Mr. Barton under investigative detention, and once he make that decision, he was then required to satisfy the Charter requirements. [ 146 ] Without conceding that the investigative detention at 8:30 a.m. was lawful, Mr. Barton argues that any possible validity was nullified because Mr. Barton was not notified of the reasons for the investigative detention.

That engages both s 9 (an unlawful detention) and s 10 (failing to notify him as to the reasons for his detention under 10(

a) and the nature and extent of his jeopardy under 10(b). Reasons and jeopardy are intertwined in s 10. [ 147 ] It is clear that little was said to Mr. Barton about the reasons for his detention: “because of the nature of the incident” or “due to the nature of the allegation”. Nothing was said to him specifically about the extent of his jeopardy. [ 148 ] Mr. Barton argues that when Constable Jones heard that the woman might be dead, that should have indicated to him that Mr. Barton's jeopardy had changed. Instead of dealing with a possible aggravated assault, there was now a potential homicide.

The evidence on the voir dire did not test what Constable Jones thought at the time about his instructions to take Mr. Barton to the homicide department. That destination is something that could certainly suggest that the woman in the hotel bathroom was, in fact, deceased, however I think projecting that conclusion as one that Constable Jones had reached is an attempt at after-the-fact reconstruction that is not warranted, particularly given the officer’s credible and reliable testimony. [ 149 ] What Constable Jones testified was that he did not know at the time he put Mr.

Barton under investigative detention whether the woman was alive or dead. He had heard that she “may be dead” but that was uncertain in his mind. It is his mind that is the object of scrutiny as to his subjective beliefs and understandings. [ 150 ] Others at the scene knew that the woman was dead, but I accept Constable Jones's evidence that he did not know that. The fact that she may or may not have been dead at the time was not new information. When Mr. Barton phoned 911, he did not know if the woman was still alive, and that was confirmed by him to Mr.

Sullivan at some time before 8:00 a.m. [ 151 ] I conclude this is not an instance of Constable Jones holding back information from Mr. Barton. I find that he did not keep back anything of significance from Mr. Barton, and there was no suggestion from the evidence (or indeed in argument) that Constable Jones acted deceptively or trickily in any way. Indeed, his purpose was never to elicit any detailed information from Mr. Barton. He acted simply to notify Mr. Barton of his detention and his resulting Charter rights.

[152] There is no doubt, however, that little was said to Mr. Barton by Constable Jones about the reasons for placing him underinvestigative detention, and there was no evidence that Constable Jones attempted to explain what investigative detention was to Mr.Barton. [153] Mr. Barton’s counsel suggests that without being advised as to the nature and extent of his jeopardy, the detainee may have noway of discerning whether he is any more than a witness. Counsel argues that it is fundamental that the detainee know what the policethink they know and that he is a suspect linked to a particular crime.

That information is essential to him proceeding thereafter withcaution. [154] R v Evans is clear when a person is detained that person to be told about the reason for his arrest or detention, and the nature ofthe detainee’s legal jeopardy. This approach has been followed in many cases, including R. v. Borden, (SCC), [1994] 3SCR 145, 119 DLR (4th) 74. Mr.

Barton acknowledges that from R v Smith, (SCC), [1991] 1 SCR 714, 122 NR 203, itis not necessary to advise detainees of the precise charges they face, and from R v Evans it is clear that determining what the detaineewould have reasonably understood is more important than the actual words used by the police. [155] R v Mann suggests that advice as to the specific crime being investigated is necessary. Other Supreme Court of Canadajudgments, and in particular R v Latimer, (SCC), [1997] 1 SCR 217, 142 DLR (4th) 577, take a broader approach tothe manner in which knowledge of jeopardy may be established, and R. v.

Latimer approach has been followed in recent cases by theAlberta Court of Appeal. [156] In R v Latimer, Mr. Latimer was arrested following the death of his severely disabled daughter. Mr. Latimer was only told hewas under arrest. The Court held that it is possible to look beyond the exact words used to inform him of his legal jeopardy. It was clearthat Mr. Latimer knew that his daughter had died, and he was being detained for investigation into her death. As a consequence no s10(

a) violation was found. [157] R v Carrier and R v Lund make it clear that R v Latimer is good law in Alberta. Thus the detainee’s knowledge gathered fromsources other than the detaining officer may be relevant, and may satisfy the obligation for the detainee to be advised (or know) of thereason for his or her detention. Mr. Barton did not testify so his state of knowledge was not explored through direct or cross-examination. [158] Here, John Sullivan testified on the voir dire. He was a swamper working with Mr. Barton. He met Mr. Barton before 8:00 a.m.on June 22 as they were going to a jobsite together.

In response to Mr. Sullivan’s comment to Mr. Barton that “we’re going to have agood day”, Mr. Barton responded “not until the police come” or words to that effect. When Mr. Sullivan enquired further, Mr. Bartontold him about a girl “bleeding in his bathtub” and that she had knocked on his door the evening before asking if she could use hisshower. He said he must have gone to sleep or passed out. He found her in this apparently injured state when he woke up in the morning. [159] Mr. Sullivan asked if she was breathing, and Mr. Barton responded “No, no response; she wouldn’t get up”. [160] Mr. Barton called 911.

He told a similar story to the 911 operator, including that he had been the only other person in the hotelroom. [161] It is clear from what Mr. Barton said on the 911 call and what he said to Mr. Sullivan that he was aware that there was aseriously injured or deceased woman in the bathtub of his hotel room. He knew he would be an obvious suspect in relation to injuries toher.

He could see the hive of activity at the hotel, and anyone observing this would inevitably conclude that there was a majorinvestigation going on. [162] I cannot see that he needed to be told anything more by Constable Jones than “because of the nature of the incident”. Mr.Barton cannot have been surprised or confused that he might be suspected of something. [163] A second consideration is that at this point Ms. Gladue’s exact state was simply unknown. It was unclear to Constable Jones atthe time he placed Mr. Barton under investigative detention what crime had been committed, if indeed a crime had been committed.

Infact no one knew whether a murder had occurred. The evidence on the voir dire indicated that while Ms. Gladue’s death was consideredsuspicious, it was only after an autopsy had been conducted late on June 22 that her death was considered to be a homicide. [164] Certainty that a criminal offence has been committed is not, however, a necessity for a valid investigative detention. In myview, the cases indicate that the same approach as to whether or not a crime has been committed should be taken as the approach towhether there is reasonable suspicion linking the suspect to the criminal activity being investigated.

Constable Jones cannot be faultedfor not advising Mr. Barton as to the nature of the suspected crime when it was not known by him (or indeed anyone else) if a crime hadlikely been committed. [165] Combined, Mr. Barton could have been under no misapprehension that the police were investigating a potential crime ofviolence, involving serious injury or possible death to Ms. Gladue. Nothing was held back from him by Constable Jones. [166] One of the main objectives in this area of constitutional law is to ensure that citizens are not unfairly treated by the state.

Irecognize that McLachlin J (as she then was) held in R v Evans that the reason for requi

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