R v Doonanco, 2016 ABQB 583

Court of Queen’s Bench of Alberta Citation: R v Doonanco, 2016 ABQB 583 Date: 20161018 Docket: 140579798Q1 Registry: St. Paul Between: Her Majesty the Queen Crown - and - Deborah Doonanco Accused Restriction on Publication 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 Permission having been given to the jurors to separate, information concerning this portion of the trial must not be published, broadcast, or transmitted in any way. NOTE: This decision is available from the court file, and it may be published after the jury retires to consider its verdict.

Editorial Notice : Restriction on Publication ended on November 28, 2016. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice M.G. Crighton Voir Dire #2 Voluntariness and s 10(

b) Right to Counsel _______________________________________________________

I. Introduction [ 1 ] The Accused initially applied to exclude a number of statements she made to police between May 25 and 26, 2014 on the basis they were not voluntary and the police breached her s. 10(

b) Charter right to retain and instruct counsel without delay and to be informed of that right. [ 2 ] Recognizing there are different burdens of proof associated with those issues, counsel nevertheless agreed to conduct a blended voir dire. [ 3 ] At the commencement of argument on the issues raised in the voir dire , Ms. Doonanco abandoned her application to exclude any of the statements on the basis of voluntariness. She further abandoned her position that she was denied her s. 10(

b) Charter rights in relation to statements she made to Constable Smith on May 25, 2016 while she was seated in the back of the ambulance on the basis that, based on the evidence on the voir dire, she was unable to argue that she was detained at the time. [ 4 ] Ms. Doonanco maintained her application to exclude statements made during her interaction with Constable Brand before and after her arrest on May 26, 2014, as well as an audio/video recorded interview conducted by Sergeant Sloan on May 26, 2014. She applies to exclude these statements on the grounds police breached her s.10 (

b) Charter right to retain and instruct counsel. [ 5 ] The Crown advised the Court that it did not intend to introduce for any purpose the statements Ms. Doonanco may have made to Constable Brand up to the point of her arrest. The only issue remaining is the admissibility of the statements she made following her arrest on May 26, 2014. II. Background [ 6 ] On the morning of May 25, 2014 at approximately noon, emergency response personnel were dispatched to a home in Glendon, Alberta. The Accused was located on the front lawn of the residence by neighbours and first responders.

The residence was on fire. [ 7 ] Once the fire was extinguished, the body of the deceased was located on the couch in the living room of the house. The body had two gunshot wounds to the torso and had been significantly burned during the fire. [ 8 ] A friend had taken the Accused from the scene to her parents’ home nearby, and emergency medical personnel responded shortly thereafter to assess her. [ 9 ] She was then transported by ambulance to the Bonnyville hospital for further assessment.

While there, Constable Holowaychuk attended to collect her clothing from her and while doing so, recorded her interaction with Ms. Doonanco. It is not clear from the record what time she attended the hospital for that purpose. After several hours, the attending physician ordered her to be further assessed in Edmonton at Alberta Hospital. [ 10 ] The Accused was then transported by ambulance to Edmonton with police following behind so that Ms.

Doonanco could be assessed at Alberta Hospital. [ 11 ] Constable Brand, who was assigned responsibility for legals, arrived at Alberta Hospital at 10:45 p.m., a few minutes before Ms. Doonanco arrived. From the evidence on the voir dire, it is clear that police had made the decision that Ms. Doonanco was arrestable by 4:25 p.m. on May 25, 2014 and that police did not consider that Form 1 in any way precluded them from arresting Ms. Doonanco while the Form 1 was pending. Constable Brand was instructed to determine her status and to arrest her if she was not admitted.

Notwithstanding his understanding that she was arrestable, Constable Brand did not specifically identify himself as a police officer and was dressed in plain clothes. Constable Brand’s partner told Ms. Doonanco she did not have to speak to them, but neither of them told her that any jeopardy would attach to her if she did. Constable Brand recorded this entire interaction with Ms.

Doonanco and it is clear from the audio that she was comforted by their presence in the waiting room. [ 12 ] When it was determined that she did not need to be admitted to Alberta Hospital, she was arrested, Chartered and cautioned by members of the RCMP for the murder of the deceased and arson. [ 13 ] Ms. Doonanco was highly emotional and extremely distraught throughout her interaction with police.

She had never been arrested previously and so had no prior experience of having been detained. [ 14 ] From Alberta Hospital, she was transported by Constable Brand and Constable Latimer to the Strathcona County RCMP detachment in Sherwood Park, arriving in the early morning hours of May 26, 2014. Constable Brand’s partner followed behind. Ms. Doonanco was processed and allowed the opportunity to speak with Mr. TerHart, her chosen counsel, before being lodged in cells. Her attempt was unsuccessful. [ 15 ] The following day, she was given two additional opportunities to instruct counsel.

In fact, she spoke to her chosen counsel on both occasions. Following the second conversation, Ms. Doonanco told police that Mr. TerHart was coming to the detachment to see her around 6:00 p.m. [ 16 ] Mr. TerHart called the detachment at 3:15 p.m. and told Constable Brand he was still coming. He did not speak to Ms. Doonanco at that time. He arrived close to 4:00 p.m. and spent 58 minutes with Ms. Doonanco in a private interview room. [ 17 ] Between 12:13 p.m. and 4:00 p.m., Ms. Doonanco provided an audio/video statement to Sgt. Sloan of the RCMP. Her statement was both inculpatory and exculpatory.

[ 18 ] Following her statement, she was transported to a remand facility. [ 19 ] There is no dispute that the charges against Ms. Doonanco are serious charges. Further, there is no dispute that there was no urgency in obtaining the statement in question. III. The Voir Dire Evidence [ 20 ] The Court heard evidence about Ms. Doonanco’s involvement with police from the time police first responded until Sergeant Sloan completed his audio/video recording of her statement. Given that the issues engage the implementation of Ms. Doonanco’s s. 10(

b) rights, the evidence that is critical to the analysis is that which immediately followed her arrest. Accordingly, my review of the evidence will focus on the testimony of Constable Brand, Sergeant Sloan, Ms. Doonanco, and Mr. TerHart. [ 21 ] However, it is clear from the record that police had significant interaction with Ms. Doonanco very quickly after responding to her home and before she was arrested. It is clear that she verged on hysteria in the early aftermath of the events in question and that she was comforted by police presence.

Constable Smith encouraged her to speak to him without any discussion of her rights even though he acknowledged he viewed the circumstances as a homicide and was aware that Ms. Doonanco was the only other individual known to have been in the house before the deceased’s body was found. Constables Brand and McFarlane sat within close enough proximity to Ms. Doonanco to record the entirety of their interaction at Alberta Hospital with Ms. Doonanco and, while they did not actively encourage her to talk, they did not discourage it either, knowing she would be arrested.

Following her arrest, they continued to record their interaction with Ms. Doonanco while they waited for over an hour for Constable Latimer to arrive to transport her to the detachment in Sherwood Park. Constable Barnes knew then that Ms. Doonanco wanted to speak to Mr. TerHart and he had a telephone number, but he made no effort to see if there was somewhere private at Alberta Hospital where she could speak to him while they waited. While it is fair that Constable Brand expected Constable Latimer much sooner, when he did not arrive he ought to have considered this. Instead, they stood outside where Ms.

Doonanco could smoke. It is apparent from the record that she was comfortable speaking to both officers. A. Constable Brand [ 22 ] Constable Brand testified that he has been with the RCMP since May 2009 and with Major Crimes in Edmonton since May 2014. [ 23 ] He testified that on May 25, 2014, at approximately 6:52 p.m., he was advised by his immediate supervisor of a homicide that occurred in Bonnyville. He was further advised that the suspect, Ms. Doonanco, was being transported to Alberta Hospital.

He was assigned to determine her status and if she was released, to arrest her. [ 24 ] Constable Brand testified that once he learned from the doctor that Ms. Doonanco would not be admitted, he advised her she was under arrest for the murder of the Kevin Feland, arson, and indignities to human remains. He then read from an arrest script that had been emailed to him earlier.

He testified that she seemed to understand what he read to her and if she did not, he rephrased until he was satisfied she did. [ 25 ] Arrangements were made for someone to pick them up at Alberta Hospital and transport them to Sherwood Park, and after some delay for reasons that are not relevant to this discussion, they arrived at the Sherwood Park detachment at 2:40 a.m.

Constable Brand recorded the entirety of the interaction from the time of her arrest until they arrived at the station. [ 26 ] Constable Brand testified that once they arrived at the Sherwood Park detachment, and after the booking process was completed, probably around 3:00 a.m., he placed Ms. Doonanco into a phone room where he ensured the phone was working. He testified that he read the caution again because it was on the script and she asked if she could call Jan TerHart. She had mentioned this name to Constable Brand at Alberta Hospital and he had already obtained a number for Mr. TerHart.

He dialed that number. [ 27 ] Constable Brand spoke to Mr. TerHart’s answering service who agreed to relay a message. The service indicated that Mr. TerHart would either call back momentarily or, if not, that he usually returned his calls around 10:00 a.m. Ms. Doonanco declined the opportunity to call another lawyer, expressing a preference instead to wait for Mr. TerHart. Constable Brand indicated he was prepared to let her wait rather than insist that she call another lawyer because she had not yet exercised her right. She was placed back in her cell alone at 3:15 a.m. and offered something to eat and drink.

She accepted some apple juice, but declined any food. [ 28 ] Constable Brand testified that he attended at Ms. Doonanco’s cell at 7:34 a.m. on May 26, 2014 and again placed her in the phone room to call counsel. He said he thought it important she speak to counsel sooner rather than later. It is clear from the evidence that the decision had been made by this time to interview Ms. Doonanco. Constable Brand reached Mr. TerHart and advised him that Ms. Doonanco was with him at the Sherwood Park detachment and that she was under arrest for murder, arson and indignity to human remains. He handed Ms.

Doonanco the phone at 7:39 a.m., exited the phone room and shut off his recording at 7:40 a.m. These times were based on Constable Brand’s observations of his watch. [ 29 ] Constable Brand re-entered the phone room at 7:44 a.m. when Ms. Doonanco indicated she was finished. The exchange proceeded as follows: Brand: Um, so did you make contact with the lawyer? Doonanco: Yeah. Brand: And that was Mr. Jan TerHart? Doonanco: Yeah

Brand: Did you understand the advice you received? Doonanco: Yeah Brand: Do you have any pending contact with counsel? Like is he gonna come down and see you in person? Did he say? Doonanco: I have to phone him at noon. Uh, I don’t know if you’re still here or not, but I’ll need that number. Brand: Yeah, I’ll still be here. Brand: Ok? Doonanco: He said… Brand: So let’s Doonanco: [the record reflects “unintelligible”, but it is clear on the audio she says:] he’s in Court. Brand: Yeah, I don’t have to know what he said. You don’t have to tell me.

Okay, we’re just gonna go back to the cell and we’ll get you some breakfast. [ 30 ] There is some dispute about how long this call lasted. Jan TerHart testified the call was short, lasting no more than 1½ to 2 minutes. Mr. TerHart was not recording the call, and I conclude this was an estimate on his part. Constable Brand was recording the time on his watch as is reflected in the audio recording made at the time. However, his watch does not have a second hand so it is likely there is some variation in the actual connect time for that call.

It is likely the call lasted no less than 3½ to 4 minutes allowing for that variation. Constable Brand only spoke to the outside parameters. While he could see into the phone room, he was not watching her throughout the call so the call could have been shorter than the time from when he handed her the phone until she indicated she was finished. [ 31 ] I accept Constable Brand’s evidence that he did not hear her say Mr. TerHart was in court. While it was audible to me when I listened, and for that matter to Constable Brand in the courtroom, it is clear from the audio that he and Ms.

Doonanco were talking over each other when she said “he’s in court”. However, whether he heard it or not, what she said caused him to inquire whether she had any continuing contact and whether Mr. TerHart was coming to the station. Having asked the question, he did not pursue the answer and instead told Ms. Doonanco he did not want to know what her lawyer said.

While I appreciate it is appropriate that Constable Brand not inquire about the advice she was given, when he cut her off, he failed to pursue an answer to the question he asked. [ 32 ] In cross examination, Constable Brand confirmed that he assumed she had received advice but did not actually ask her. He also agreed that Ms. Doonanco might well have considered “he’s in court” to have been “advice”. She told him she understood the “advice”, but Constable Brand did not ask her if she was satisfied with it. [ 33 ] Constable Brand’s next contact with Ms. Doonanco occurred at 12:03 p.m.

On the way to the phone room, Ms. Doonanco confirmed that her lawyer said he would be available around noon and that he had told her to call him then. She also told him again that he said he was going to court. Constable Brand acknowledged on the audio record that he had received that same information from the receptionist to whom he had spoken earlier. If there was any doubt about where Mr. TerHart was when Doonanco first called him, there should not have been any doubt before her second contact, and Constable Brand should have been aware then that Mr. TerHart had not been available to Ms.

Doonanco. [ 34 ] Constable Brand placed Ms. Doonanco in the phone room and again contacted Mr. TerHart at 12:09. He again passed the phone to Ms. Doonanco and exited the phone room at 12:10 p.m. He re-entered the phone room at 12:11 p.m. when Ms. Doonanco signaled she was finished. The following exchange took place: Brand: Are you all done? Yeah? Doonanco: He’s in Edson Brand: Yeah Doonanco: So he said phone back at 6 tonight. Brand: Okay Doonanco: Do you know where you’re going to have me so he can come?

Brand: Okay, well… Doonanco: Like he doesn’t know if you’re transferring me somewhere like the Remand or … Brand: Oh, none of that has been determined yet. You just need to, you need to speak to him and get some legal advice and that’s, and as long as you’ve satisfied that, then we’re done. So … Doonanco: Cause, he said he will come here like at 6, or like after that ‘cause he’s on the road. Right? Brand: Yeah, yeah Doonanco: And he will come and see me, he said, but he needs to know where I am.

Brand: Yeah, and I told him you were in Sherwood Park. Doonanco: At six. No he knows I’m here. Brand: Yeah Doonanco: But that I’m still here. Brand: Yeah, you’ll probably still be here… [ 35 ] Constable Barnes testified that he was conveying to her that she had received advice and if she was satisfied with that advice then they had done what was required of them. [ 36 ] I agree with defence counsel that in context, Constable Brand’s comments about her speaking to Mr. TerHart could reasonably have been understood as being prospective. He did not ask her if she had received advice.

He asked her if she was done and she replied: “He’s in Edson”. Ms. Doonanco was telling him that he was coming to see her and in that context, it is reasonable that Ms. Doonanco would have concluded from this exchange that she needed to speak to counsel when he arrived and then once she was satisfied with that advice, they would be done. Constable Brand acknowledged that while his choice or words was poor, Ms. Doonanco did not display any concerns about the advice she received and did not suggest she needed any further advice.

He testified that he did not give her any further time to contact counsel because he believed she had received advice twice and she had not asked for any more time to do so. [ 37 ] Whatever Constable Brand intended by the words he used, given the content of their discussion, he ought to have confirmed again that she had no contact pending and that she was in fact satisfied with whatever advice he thought she had received to that point. Unlike in Willier , McCrimmon and Sinclair , in which all of the detainees expressed satisfaction with their legal advice, the subject of satisfaction with Ms.

Doonanco’s earlier contact did not arise one way or another and the discussions were not conclusive as to whether or not she had actually been able to have a reasonably satisfactory consultation with Mr. TerHart who was obviously tied up with court proceedings that day and intending to meet with Ms. Doonanco later. [ 38 ] Ms. Doonanco was returned to her cell at 12:13 p.m. where she remained until Sergeant Sloan came and got her in order to conduct an audio video statement at 12:49 p.m. [ 39 ] Constable Brand advised Sergeant Sloan that Ms. Doonanco had spoken to Mr.

TerHart twice and that she understood the advice she received. He did not tell Sergeant Sloan that Ms. Doonanco had indicated she was satisfied with the advice she received. He certainly did not advise him that she was expecting to meet with Mr. TerHart who was coming to the detachment for that purpose. [ 40 ] Constable Brand acknowledged that Mr. TerHart called him at about 3:15 p.m. to advise Constable Brand that he was on his way. He could not recall if Constable Brand told him Ms. Doonanco had been interviewed when he arrived, nor if she was being interviewed when he called. Mr.

TerHart was not asked whether he was told she was being interviewed when he called or that she had already been interviewed when he arrived. [ 41 ] Constable Brand did not recall reporting to Sergeant Sloan that Mr. TerHart was on his way during Sergeant Sloan’s interview with Ms. Doonanco. B. Sergeant Sloan [ 42 ] Sergeant Sloan testified that he has been an RCMP officer for 15 years, 9 of those with Major Crimes in Edmonton. [ 43 ] He testified that Sergeant Creaser advised him of an investigation involving Ms. Doonanco on May 25, 2014 in the early afternoon.

He was assigned later that night to conduct an interview with Ms. Doonanco and he made arrangements to do so on May 26, 2014. He started the interview that day at 12:49 p.m. and finished it at 3:39 p.m. He testified that before he started this interview, he knew Ms. Doonanco had been cleared on her Form 1 referral, and that she had been arrested, Chartered and cautioned by Constable Brand following her arrest and again in the morning of May 26, 2014. Based on the information he received from Constable Brand, who he knew was in charge of legals, he was satisfied she had exercised her rights.

He was advised that contact had been made and that Ms. Doonanco was satisfied with that contact. He further understood that Ms. Doonanco’s lawyer may be attending at 5:00 p.m. [ 44 ] Sergeant Sloan testified he did not wait for Ms. Doonanco’s lawyer to attend the detachment because he was satisfied she had been in contact with her lawyer numerous times and that she was both aware of and understood her rights. He stated in cross examination that he was not aware that Constable Brand had not asked Ms. Doonanco if she was satisfied with the advice she received.

He volunteered that such an omission would surprise him. [ 45 ] Sergeant Sloan testified that Ms. Doonanco did not express any dissatisfaction with her advice at any time during the interview, and he testified if she had, he would have asked why and spoken further to Constable Brand. He also testified that if she told him she needed more time to obtain advice, he would have allowed her that time. [ 46 ] Sergeant Sloan agreed that Constable Brand’s recordings were available to him, but he did not listen to them. He testified he did not think Ms. Doonanco’s second contact with counsel was necessary.

He believed it was only a courtesy given because they were still arranging medication, and were therefore not ready to start the interview earlier. He agreed that in any event he did not ask why the second contact was needed. [ 47 ] Sergeant Sloan acknowledged that Ms. Doonanco advised him her lawyer told her “no talking” until she saw him. He acknowledged he decided when the interview would take place and that it would occur before Ms. Doonanco’s lawyer arrived.

[ 48 ] Sergeant Sloan confirmed that he exited the interview room at 3:19 p.m. and went into the monitor room to get Ms. Doonanco a sleeping pill. He agreed that Constable Brand, who was in the monitor room, did not tell him that Mr. TerHart had called and was on his way. He also confirmed that he was never advised before the interview started that at the time of Ms. Doonanco’s contact with Mr. TerHart, he was either in court or on his way to court. [ 49 ] The interview is lengthy. Ms. Doonanco stated before the interview began that her lawyer had told her “no talking till I see him”.

She repeated twice more in the interview that her lawyer had told her not to talk. She also told Sergeant Sloan more than once that she was waiting for her lawyer to come and it is clear she was concerned about the time when at 2:14 p.m. she asked: “What time is it?” When she was given the time she responded “Okay. I still have a little time ‘til my lawyer comes”. She also told Sergeant Sloan that the police had not told her anything beyond the fact she was under arrest for murder. [ 50 ] It is also clear that Sergeant Sloan told Ms.

Doonanco repeatedly during the interview that it was her choice whether she wanted to talk to him. He said: “that’s up to you”, “you’re under no obligation to talk to me so, it’s up to you, Deborah, it really is.”; “you’re free to do what, what you’d like.”; “But it’s essentially your choice today, and it’s completely your choice…”; “It’s up to you whether you like to do that and like I said, I’m not, I’m not here to force you to do anything”; and “Well, and you don’t have to answer if you don’t want to”. Ms.

Doonanco continued to answer Sergeant Sloan’s questions. [ 51 ] It is important to note that at some point during the interview, Sergeant Sloan in a long monologue told Ms. Doonanco about three different rights. However, when she stated broadly: “I don’t know what that means”, Sergeant Sloan sought no clarification from her about what she did not understand. Rather, he testified that he assumed she did not understand the secondary caution and explained that in language he believed she understood. [ 52 ] It is also clear that she did not appear to understand the role of police in their interaction.

The following exchanges occurred within 20 minutes of each other: Sloan: …Well, you don’t have to answer if you don’t want to. Doonanco: I don’t know what to do. Sloan: Ya. The… Doonanco: Is my lawyer going to be like really mad not telling you all this? Sloan: I, I can’t answer for him just like you said;;; Doonanco: Ya but why would you guys be mad at each other? Sloan: I’m not mad at… Doonanco: No but are you guys on the same side? Are you on my side? Sloan: I am, I’m unbiased. I’m, all I do, I’m certainly not working for you. I’m working for the investigation, My job is to get the truth. Doonanco: Okay.

And notwithstanding that explanation, 20 minutes later: Sloan: …Your, your lawyer’s at the front door. Doonanco: Already? Sloan: to come and talk to you. So I’ll just ah go and get him. But, I’m, as far as this goes, I’m gonna shut my recording off and then probably Brea will come and, and ah… Doonanco: My lawyer’s here? Sloan: I guess so. I thought it was six o’clock right? But ya. Doonanco: So does he get to listen to any of this? Sloan: He will eventually, ya. Doonanco: He gets to? Sloan: Oh ya. Ya everything we do… Doonanco: Instead of repeating, like you work together don’t you?

Sloan: Well I work for the courts… Doonanco: Like he gets to… Sloan: we all work for the courts. Like…

Doonanco: Okay [ 53 ] This exchange is significant because it reflects an astonishing lack of understanding on Ms. Doonanco’s part that suggests the advice she had received to that point was likely either incomplete or not understood. C. Deborah Doonanco [ 54 ] Ms. Doonanco testified that she had never been arrested before or told what her rights were in those circumstances. She testified that at the time of her interaction with both Constable Brand and Sergeant Sloan, she had not really slept since the Tuesday in the week prior to these events.

She had been using sleeping pills, but they were having little effect on her. She described herself as being weak, beyond exhaustion and unclear in her thinking. [ 55 ] She further testified that she had not eaten much because her stomach had been burning. She was not taking medication for that condition, but attributed it to her nervous state in the week prior to the events in question. She testified that while her body was hungry, she simply could not keep food down.

She described herself as light headed, confused and terrified because of her lack of food. [ 56 ] She testified that she had been experiencing depression since 2012 and was taking medication for that condition. She testified it was difficult to say what effect the medication had on her, though she knew how she felt when she did not have them. She testified that she had last taken her medication on the Thursday or Friday morning before the events in question. [ 57 ] Ms.

Doonanco testified she was also taking Ativan for panic attacks and that she had last taken it two days before the events in question. [ 58 ] This evidence and that regarding her eating and sleeping patterns preceding the interview was unchallenged, and neither Constable Brand nor Sergeant Sloan followed up on this information when she brought it to their attention. While it is clear from the audio/video recording of her interview that Sergeant Sloan provided Ms. Doonanco with her medication immediately before commencing the interview, neither officer asked Ms.

Doonanco when she last had it or how missing it affected her. [ 59 ] Ms. Doonanco testified that her lack of sleep, medication, food and her menopause symptoms affected her memory and caused her to be confused and terrified. She described this as “words coming at you without an ability to comprehend them”. She stated that it felt as though she had no control and it was hard to function on a daily level. [ 60 ] She testified that when she was placed under arrest, she could not believe what was happening and could not comprehend the information at all.

She stated that she was in shock, she was confused and it seemed surreal to her. [ 61 ] Ms. Doonanco waived her solicitor client privilege for the purposes of the voir dire and confirmed she spoke to Mr. TerHart at 7:40 a.m. on May 26, 2014. She described herself as being beyond terrified. She testified she did not know what her rights were or how long she would be in custody. She testified that her conversation with him was very short as he was either in court or going to court and he told her he would talk to her later. She said he seemed unavailable.

She acknowledged he told her: “Don’t say anything until I see you” , but she understood he would come to see her in person when he could. She recalled she was crying and trying to comprehend as best she could. She testified that Mr. TerHart told her he would call her at noon to give her more information about what to do. [ 62 ] Ms. Doonanco testified that she was confused when Sergeant Sloan came to take her for an interview because Mr. TerHart had told her not to talk. She confirmed she told him her lawyer told her not to talk until she saw him.

She testified that she intended to communicate to him that she was not supposed to talk until her lawyer saw her. She testified that neither Constable Brand nor Sergeant Sloan ever asked her if she was satisfied with her legal advice. She said she tried to tell Constable Brand that Mr. TerHart was on the road but he was coming to see her, but Constable Brand stopped her. [ 63 ] Ms. Doonanco testified that her second call with Mr. TerHart around noon was very short, approximately one minute. She testified that Mr. TerHart told her he would see her at 6:00 p.m. and she was waiting again.

She testified that Constable Brand came into the room and she immediately tried to tell him what Mr. TerHart had said. He did not ask her if she was satisfied with her advice and she did not say she was not satisfied because she did not know whether she could. In any event, the question never arose. She testified she was looking forward to seeing Mr. TerHart because Constable Brand kept saying she needed to phone a lawyer and she needed to talk to someone. She expected to get help from him. [ 64 ] She testified that she was not aware she would be interviewed until Sergeant Sloan came to her cell.

She could not recall what he said when she told him her lawyer had said “no talking until she saw him” and she felt intimidated to go with him. He never told her he would stop the interview so she could call Mr. TerHart, nor did he tell her that Mr. TerHart had called at 3:15 p.m. to say that he was on his way. [ 65 ] Ms. Doonanco agreed she confirmed she understood what Constable Brand told her, but explained she was only going through the motions. She said she heard him, but did not comprehend him. [ 66 ] Finally, Ms.

Doonanco agreed Sergeant Sloan told her it was her choice to speak to him or not but she denied she understood it. She testified she was trying to be nice and cooperative and to get somebody to help her. [ 67 ] I agree with Crown that Ms. Doonanco’s evidence after the fact about what she did or did not understand may be coloured by her interest in the outcome of this application. However, the record does support her evidence that she was waiting for Mr. TerHart to come and see her in person and that he did not seem to be available to her because he was on the road and in between court appearances.

There is also some support for her statement that she did not entirely understand what she was told. D. Jan TerHart

[68] Mr. TerHart testified that he has practiced exclusively criminal law for 34 years along the Yellowhead, starting from StonyPlain and including Jasper and Grande Cache. [69] He testified that he received a call from Constable Brand on May 26, 2014, likely around 7:30 a.m. He had a preliminaryinquiry in Edson that morning and was driving when he received the call. Constable Brand advised him that Ms. Doonanco’s chargesincluded murder and put him in contact with her. He said she was upset, distraught, and weeping throughout the conversation.

Hetestified that he told her he was on his way to court and did not want to discuss anything over the phone. Of significance to this inquiry ishis evidence that he told her not to speak to anybody until he had had the chance to speak to her and that he would try to get hold of heragain at noon. [70] Mr. TerHart testified that he spoke to Ms. Doonanco again around noon when she called him. At that time, he recalled he hada clearer picture of what time he expected to be finished in Edson.

He had a 1:00 p.m. preliminary inquiry that he expected to take 90minutes, after which he intended to go directly to Sherwood Park. He again told her he would come to the detachment to see her inperson as soon as he could. He testified: “I told her in the strongest of terms that I could, ‘Do not talk to anybody about this. Say nothing.If you’re asked, advise them that on the advice of counsel, you have nothing to say’. And I just left it at that”. Mr. TerHart, in crossexamination, said he told her that because he had no idea what advice to give her because he had not spoken to her.

He told her not to sayanything until he had a chance to do that. He agreed he told her that because he was aware that police commonly attempt to getstatements from people who are under arrest. IV. Parties’ Positions [71] Counsel for Ms. Doonanco argues that the record reveals a serious breach of s. 10(

b) that must lead to exclusion. Counselargues that it ought to have been clear to police that Ms. Doonanco wanted to continue to exercise her right to obtain legal advice and thatshe was sincere and diligent in her efforts to do so. [72] Counsel argues that police had an obligation to pair their inquiry about the advice she received to the caution they gave herregarding her right to silence. He argues that the evidence is uncontroverted that although Ms. Doonanco indicated that Mr. TerHart hadtold her not to talk until he got there, Mr.

TerHart had in fact given her no more than preliminary information, that he was on the roadand that he was coming to see her that day to advise her. She expected to get help from Mr. TerHart when he came to the station.Counsel argues it should have been clear to Constable Brand that she was waiting for her lawyer to come and that her contact with himwas pending. [73] Moreover, counsel notes that there was no urgency to conduct this interview, and that Mr.

TerHart arrived within 3½ hours ofhis last contact with her. [74] Counsel acknowledges the principles stated in the Supreme Court’s trilogy of cases pertaining to s. 10(

b) rights, but states thathis argument is not about the quality of the advice that was given, but rather about the right to effectively consult counsel and to receiveadvice. [75] Crown argues that the police provided Ms. Doonanco with a reasonable opportunity to retain and instruct counsel. Sheexercised her right twice and the transcript clearly reflects that she was provided with advice. The Crown argues that the Court must lookat the statements in context rather than isolated excerpts. Crown argues the Court should be satisfied on the whole of the evidence thatpolice afforded Ms.

Doonanco a reasonable opportunity to consult, she exercised it, and she received the type of preliminary advicecontemplated in R v Ross, (SCC), [1989] 1 SCR 3, R v Brydges, (SCC), [1990] 1 SCR 190 and R vProsper, (SCC), [1994] 3 SCR 236. Moreover, the record reflects that she understood that advice relative to her right tosilence. [76] Crown argues that Mr. TerHart in fact gave Ms. Doonanco advice: not to talk until she saw her lawyer. Crown argues that theright to silence is the essence of the s. 7 interest that s. 10(

b) Charter right is intended to protect. Crown submits that Ms. Doonanco’sconfirmation of what she was told demonstrates clearly that she understood it. [77] The Crown argues that Ms. Doonanco had the onus to advise police in clear terms either that she did not understand the adviceshe was given, or that it was somehow unsatisfactory. She did neither. V. Relevant Legal Principles [78] The duties imposed on police by s. 10(

b) of the Charter are both informational and implementational. In this voir dire,defence counsel restricted his arguments to the implementational obligations. [79] The implementation obligations imposed on police are twofold. First, police have an obligation to provide the detainee with areasonable opportunity to exercise the right to counsel. What is reasonable will depend on all of the circumstances, including theseriousness of the charge and the urgency of the investigation.

Second, police have a duty to refrain from attempting to elicit evidenceuntil that reasonable opportunity has been afforded. [80] If the Court is satisfied the first implementational obligation has been met, the burden will shift to the detainee to establishthat he or she has been reasonably diligent in the exercise of her rights: R v Luong, 2000 ABCA 301, [2000] AJ No 1310. [81] The Supreme Court in R v Sinclair, 2010 SCC 35 at para 42, [2010] 2 SCR 310 and the companion cases R v McCrimmon,2010 SCC 36, [2010] 2 SCR 402 and R v Willier, 2010 SCC 37, [2010] 2 SCR 429, defined the nature and limits of the right to counselunder s. 10(

b) of the Charter. As stated in Sinclair:

24 The purpose of s. 10(

b) is to provide a detainee with an opportunity to obtain legal advice relevant to his legal situation. In thecontext of a custodial interrogation, chief among the rights that must be understood by the detainee is the right under s. 7 of the Charterto choose whether to cooperate with police or not. 25 The purpose of s. 10(

b) of the Charter and its relationship with the right to silence under s. 7 were stated by McLachlin J. (as she thenwas) in R. v. Hebert, (SCC), [1990] 2 S.C.R. 151, at pp. 176-77. These rights combine to ensure that a suspect is ableto make a choice to speak to police investigators that is both free and informed... 26 … The emphasis, therefore, is on assuring that the detainee’s decision to cooperate with the investigation or decline to do so is freeand informed.

Section 10(

b) does not guarantee that the detainee’s decision is wise; nor does it guard against subjective factors that mayinfluence the decision. Its purpose is simply to give detainees the opportunity to access legal advice relevant to that choice. [82] The Court in Sinclair recognized the tension that will necessarily exist between the s. 7 right to silence and the related Charterrights, and society’s interest in the investigation and solving of crime. Accordingly, the law is clear that police are not required toautomatically retreat upon a detainee invoking the right to remain silent: Sinclair at para 63.

Further, an accused does not have a right tohave a lawyer present during a police interview: Sinclair at para 42. [83] In Willier, the Court confirmed that a detainee must be afforded a reasonable opportunity to contact chosen counsel where thedetainee expresses the desire to speak to a specific lawyer.

Further, in those circumstances, police must hold off their questioning untilthe detainee has had the opportunity to consult that lawyer as long as the detainee is reasonably diligent in exercising that right. [84] As noted in Willier at para 42, unless an accused has been diligent in indicating that the advice received was inadequate orthat he or she wished to continue to exercise her right, the police can assume the accused is satisfied with the opportunity given andcommence their investigative steps. VI. Analysis [85] The Crown has the onus on this voir dire to prove, on a balance of probabilities, that Ms.

Doonanco was provided with areasonable opportunity to exercise her right to counsel. If the Court is satisfied that police provided Ms. Doonanco with a reasonableopportunity and held off questioning her until they did so, the burden will shift to Ms. Doonanco to establish that she was reasonablydiligent in exercising her right. [86] It ought to have been clear to Constable Brand after both calls that her consultation with Mr. TerHart was pending. After thefirst contact, Constable Brand asked her that very question and she tried to tell him Mr. TerHart was in court.

She told Constable Brandshe needed to call her lawyer back at noon. Constable Brand acknowledged that Ms. Doonanco might well have considered that Mr.TerHart telling her he was in Edson or in court was “advice” as that term was used in Constable Brand’s conversation with Ms.Doonanco. [87] I accept that Constable Brand did not hear Ms. Doonanco tell him that Mr. TerHart was in court. However, it is clear that Ms.Doonanco tried to tell him this. Having asked the question whether contact was pending, Constable Brand did not pursue the answer. Hehad posed a question and had not received an answer.

He should have asked her if she was satisfied with her earlier advice, whatever itwas. This fact distinguishes this case from the facts in Willier, McCrimmon and Sinclair in which the detainees all confirmed theirsatisfaction with the advice they received and there was nothing to suggest that consultation was pending. [88] Following the second call, Constable Brand again posed a question, which he acknowledged was poorly worded. Again incontext, it can be objectively understood as referring to the contact Ms.

Doonanco expressly anticipated she was going to have with Mr.TerHart when he attended in person at 6:00 p.m. [89] I find that the police ought to have had a doubt as to whether Ms. Doonanco had in fact had a reasonable opportunity toconsult with Mr. TerHart. She made reasonable efforts to tell the police that her consultation was pending. Given the admitted lack ofurgency to obtain a statement from her, the police should have refrained from questioning until she had met with Mr.

TerHart. [90] I agree with defence counsel that Sergeant Sloan cannot rely on the incomplete information he received from Constable Brandto say that he understood her contact was complete. Constable Brand’s audio recordings were available to him. In my view, if he hadlistened to them, he would have had a question as to whether or not Ms. Doonanco had been given a reasonable opportunity to consultwith counsel. [91] While it is true that Ms.

Doonanco repeated that her lawyer told her no talking until she met with him, the interview itselfreveals her lack of comprehension about that instruction, and her astonishing lack of understanding regarding the role of the police. [92] For all of the above reasons, I am not satisfied on a balance of probabilities that Ms. Doonanco was afforded a reasonableopportunity to exercise her s. 10(

b) Charter rights. VII. Section 24(2) Analysis [93] The Supreme Court held in R v Grant, 2009 SCC 32 that when faced with an application for exclusion under s. 24(2), a courtmust assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: 1. The seriousness of the Charter infringing state conduct (admission may send the message the justice system condones serious statemisconduct);

2. The impact of the breach on the Charter protected interests of the accused (admission may send the message that individual rights count for little); 3. Society’s interest in the adjudication of the case on its merits. [ 94 ] The Court’s role on a s. 24(2) analysis is to balance the factors under each of these lines inquiry to determine whether considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. [ 95 ] Crown argues that while it would be unusual to admit statements obtained in breach of s. 10(b), Ms.

Doonanco’s statements in this case should be admitted because the breach arises from her own lack of diligence and is therefore a technical one. Further, because the statements are largely self-serving and were not coerced, reliability should not be a concern. Finally, although the Crown seeks only to admit the statements for cross examination, there is a high likelihood that defence evidence will be called that will enhance their relevance. [ 96 ] I find this breach to be serious. There was no urgency.

Although I attribute no bad faith to the officers, they should have been more diligent in their communications with Ms. Doonanco. [ 97 ] The impact on Ms. Doonanco’s rights was significant. She faces extremely serious charges. It is entirely speculative that Ms. Doonanco would have made the statements if her right to retain and instruct counsel had not been breached. [ 98 ] As for society’s interest in the adjudication of the case on its merits, the Court must consider whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.

It is clear that Ms. Doonanco was confused as to the role of the police, which relates to her understanding of her jeopardy in her discussions with them. [ 99 ] While the statements are only being tendered for cross examination, they create the potential for the Crown to use Ms. Doonanco’s own words, unlawfully obtained, to incriminate her or to undermine her credibility.

I adopt the observation in R v Rajaei- Mehrabadi , [2016] OJ No 2053 at para 42 to the effect that using a statement for the purposes only of cross examination can be as incriminating in every meaningful sense of the word as using it in other ways. [ 100 ] I find that the truth-seeking function of the criminal trial process would be better served by exclusion of the evidence. In my view, admitting this statement obtained through a s. 10(

b) breach would shock the community and undermine the public’s confidence in the justice system. VIII. Conclusion [ 101 ] In conclusion, the Accused’s application to exclude the statements she made to Constable Brand and Sergeant Sloan is allowed. Heard October 3 rd to October 6 th and October 13 th , 2016. Dated at the Town of St. Paul, Alberta this 17 th day of October, 2016. M.G. Crighton J.C.Q.B.A. Appearances: S. Niblock & D. Sopko Alberta Justice, Edmonton Rural & Regional Response Office for the Crown B. Beresh, QC & R. LaValley Liberty Law for the Accused