R v Lafrance, 2017 ABQB 746

Court of Queen’s Bench of Alberta Citation: R v Lafrance, 2017 ABQB 746 Date: 20171205 Docket: 150410801Q1 Registry: Fort McMurray Between: Her Majesty the Queen Respondent / Crown - and - Nigel Lafrance Applicant / Accused Corrected judgment: A corrigendum was issued on December 14, 2017; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Oral Judgment of the Honourable Mr. Justice L.R.A. Ackerl _______________________________________________________ Table of Contents I. Introduction . 2 II. The Voir Dire Applications . 3 III. The Law:

Section 9 of The Canadian Charter of Rights and Freedoms . 3 The Voir Dire Evidence . 5 A. Witness Credibility and Reliability . 5 B. March 19, 2015 Interaction . 7

i) The Initial Encounter 7 The March 19, 2015 Interview .. 8 D. Voluntariness of the March 19, 2015 Statement 12

Proximity Analysis . 13 IV. The April 7, 2015 Events . 14 The Alleged Charter Breaches . 14 The Alleged s 10(

b) Charter Violation . 14 The Informational Duty . 15 The Implementational Duty . 17 Voluntariness of the April 7, 2015 Statement 19 The Alleged

Section 8 Charter Breaches . 22 Sufficiency of Informations To Obtain A Search Warrant 22 Unreasonable Conduct During Search Warrant Execution . 23 Filing of Reports To A Justice . 24 Admissibility Of After The Fact Conduct 24 The Law .. 25 Application To This Case . 26 The Knife . 26 Disposal Of Clothing . 27 The Letters . 27 I. Introduction [ 1 ] Nigel Lafrance is accused of the first degree murder of Anthony Yasinski on March 17, 2015. On that date Lafrance phoned Yasinski to arrange a cocaine buy. When Yasinski arrived at Lafrance’s residence they left together in Yasinski’s vehicle.

After travelling a short distance Lafrance stabbed Yasinski in the throat, and stole money and cell phones. [ 2 ] Yasinski, who was bleeding badly, was found by a passerby. He died at hospital that day. [ 3 ] The Crown alleges Lafrance arranged the meeting to rob and murder Yasinski. His conduct was planned and deliberate. The defence concedes Lafrance committed homicide but his intention supports only a manslaughter conviction. [ 4 ] Lafrance shortly became a focus of the police investigation largely because of Yasinski’s last cell phone communications.

A variety of search warrants were subsequently obtained including a search warrant for Lafrance’s residence at 344 Mustang Road, Ft. McMurray. [ 5 ] At the time of the residence search Lafrance was asked if he would provide a voluntary statement to the RCMP. He agreed to do so, and participated in a 3.5 hour interview with RCMP Sergeant (then Corporal) Eros. At the end of this March 19, 2015 interview Lafrance provided a sample of blood for DNA typing identification, fingerprints, and several cell phones.

Some of Lafrance’s clothing was seized. [ 6 ] On April 7, 2015, Lafrance was arrested for the murder of Yasinski. At the Timberlea RCMP detachment Lafrance was given the opportunity to speak to legal counsel and obtain advice. Corporal Eros then interviewed Lafrance, during which Lafrance confessed to the murder of Yasinski. II. The Voir Dire Applications [ 7 ] Mr. Lafrance argues his Charter rights were infringed on multiple grounds. He argues unlawful denial of his s 10(

b) Charter rights and unlawful detention during the March 19, 2015 interview. Similar grounds are based for alleging violation of his post-arrest interview on April 7, 2015. Mr. Lafrance argues both statements were involuntary. [ 8 ] The Crown does not seek to have the March 19, 2015 statement or evidence seized that date, entered at trial. However, the Crown argues the April 7, 2015 statement is voluntary. [ 9 ] Numerous grounds are cited in breach of the accused’s s 8 Charter rights.

These include unlawful searches during the first interview, insufficient grounds for obtaining search warrants and unlawful execution, in particular overreach, during search warrant execution. The Defence also alleges certain seized items should be excluded due to deficient reporting steps per Criminal Code , ss 487,

489. [10] The defence abandoned certain alleged s 8 Charter breaches because of acknowledged lack of standing. Examples includesearches of a basement residence dwelling and Michalla Jones’ telephone. The defence also abandoned argument that Edmonton RemandCentre phone calls were unlawfully intercepted. [11] The Defence argues cascading of alleged Charter violations so taints subsequent investigative steps that exclusion of resultingevidence is required. III. The Law:

Section 9 of The Canadian Charter of Rightsand Freedoms [12] The Charter, s 9 states, that “Everyone has the right not to be arbitrarily detained or imprisoned.” [13] Canadian courts recognize that not all interactions with the police are a detention. This was explained by Iacobucci J in R vMann, 2004 SCC 52 at para 19, [2004] 3 SCR 59: “Detention” has been held to cover, in Canada, a broad range of encounters between police officers and members of the public.

Even so,the police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes ofidentification, or even interview. The person who is stopped will in all cases be “detained” in the sense of “delayed”, or “kept waiting”. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical orpsychological restraint. [Emphasis added] [14] R v Grant, 2009 SCC 32 at para 44 provides a framework for determining when a detention has occurred: 1.

Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical orpsychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with therestrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but tocomply. 2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained.

Todetermine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the stateof the liberty of choice, the court may consider, inter alia, the following factors: (

a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police wereproviding general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out theindividual for focussed investigation. (

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred;the presence of others; and the duration of the encounter. (

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; levelof sophistication. [15] R v Grant’s companion judgment R v Suberu, 2009 SCC 33, [2009] 2 SCR 460 recognizes that detention must be consideredon an ongoing basis. [16] In R v Moran (1987), (ON CA), 36 CCC (3d) 225 at 258-59, [1987] OJ No 794 (QL), adopted by the AlbertaCourt of Appeal in R v Lee, 2007 ABCA 337, 417 AR 331; the Court particularizes factors relevant to analyzing the issue of detention: 1.

The precise language used by the police officer in requesting the person who subsequently becomes an accused to come to thepolice station, and whether the accused was given a choice or expressed a preference that the interview be conducted at the policestation, rather than at his or her home; 2. Whether the accused was escorted to the police station by a police officer or came himself or herself in response to a policerequest; 3. Whether the accused left at the conclusion of the interview or whether he or she was arrested; 4.

The stage of the investigation, that is, whether the questioning was part of the general investigation of a crime or possible crimeor whether the police had already decided that a crime had been committed and that the accused was the perpetrator or involved in itscommission and the questioning was conducted for the purpose of obtaining incriminating statements from the accused; 5. Whether the police had reasonable and probable grounds to believe that the accused had committed the crime being investigated; 6.

The nature of the questions: whether they were questions of a general nature designed to obtain information or whether theaccused was confronted with evidence pointing to his or her guilt; 7. The subjective belief by an accused that he or she is detained, although relevant, is not decisive, because the issue is whether heor she reasonably believed that he or she was detained. Personal circumstances relating to the accused, such as low intelligence,emotional disturbance, youth and lack of sophistication are circumstances to be considered in determining whether he had a subjectivebelief that he was detained.

[ 17 ] Police have a right to take investigative steps. Determination of whether detention occurred must account for: ... the perspective of the reasonable person in the circumstances of the person being questioned. The onus is on the applicant to show that in the circumstances he or she was effectively deprived of his or her liberty of choice. The test is an objective one and the failure of the applicant to testify as to his or her perceptions of the encounter is not fatal to the application.

However, the applicant’s contention that the police by their conduct effected a significant deprivation of his or her liberty must find support in the evidence . [Emphasis added.] ( R v Suberu at para 28 .) The Voir Dire Evidence A. Witness Credibility and Reliability [ 18 ] Sgt. Eros was the principal officer in contact with Mr. Lafrance during the investigation. Both testified in the voir dire . [ 19 ] Sgt. Eros is a 12 year veteran of the RCMP. He had both training and experience in interviewing criminal suspects. I find Sgt. Eros was a credible and reliable witness. As examples of his honesty, Sgt.

Eros readily acknowledged Lafrance could have been interviewed at the residence. However, in his view the police detachment was a preferred location for conducting the interview. It was also preferable that the interviewee would find their own transport to the interviews. He volunteered it would have been better to conduct the interview close to the detachment entrance. Sgt. Eros also acknowledged the resulting interview was lengthier than generally occurred in non-accusatory sessions. [ 20 ] He was a forthright witness who identified when his memory was unreliable.

For example, during cross-examination he was careful to indicate what parts of the activity at the 344 Mustang Road he did and did not recall. When presented with documentary evidence in relation to relevant events he accepted that. He was an honest witness. [ 21 ] The reliability of his evidence is flagged by the consistency of his testimony with content of the audio-videotaped interviews. It also reflects his considerable advance preparation before testifying. This included reviewing his notes, interview transcripts and recordings to refresh his independent memory. [ 22 ] His testimony was clear and specific.

It was also corroborated by other police officers present during the initial encounter and as interview observers. Moreover, the accused’s recollection of his physical interaction with police, and specifically Sgt. Eros, does not demonstrably differ. [ 23 ] Finally, I note that defence counsel did not meaningfully (or successfully) attack the cogency of Sgt. Eros’ testimony. [ 24 ] This latter comment also applies to all police officers who testified during the voir dire . Moreover, their material testimony was internally consistent and corroborated by other officers and/or recordings.

Accordingly, I accept as honest and accurate the testimony of all testifying police witnesses. [ 25 ] In contrast, the voir dire testimony of Nigel Lafrance raises significant and troubling credibility concerns. [ 26 ] The accused testified in a quiet, polite manner. His answers to both counsel were generally brief but properly responsive. Mr. Lafrance candidly acknowledged unsettling personal details involving his parents supplying him with cocaine and alcohol. However, he also admitted to lying when faced with trouble or confrontation. Lafrance stated “I don’t like lying but it is habitual”.

He acknowledged lying to police on several unrelated occasions before the March 19 th interview. [ 27 ] I conclude Lafrance was dishonest in attesting, for bail purposes, that he was employed. I reject his voir dire testimony that he believed he was employed in July 2015, given he was by admission, fired about 6 months earlier. [ 28 ] I also conclude he was not honest in his interviews during the investigation.

For example, his testimony that he felt compelled to provide his March 19 th statement because of prior experience in a motor vehicle is implausible. [ 29 ] Lafrance testified his perception was based upon a 2014 motor vehicle accident where he was completed, via a 911 call operator’s direction, to attend that same detachment to provide a statement. At that location, he waited in line to receive forms for completion. Lafrance believed he had no choice in whether to complete these forms as he was not given contrary direction.

Upon completing the forms, he gave them to a detachment official, without conversation, and departed. [ 30 ] I reject this explanation for Lafrance both initially accompanying police and then participating in the interview. The attendant circumstances were markedly different. Lafrance had no direct contact with police and was not in criminal jeopardy when he provided the earlier motor vehicle statement.

It appears he was requested, rather than compelled, to provide a statement from the 911 operator. [ 31 ] The drastically different circumstances surrounding these two statements render this comparison unreasonable and self-serving. [ 32 ] Lafrance also testified he offered information about the knives in his garage because of concern about attracting “trouble” for non-disclosure. He explained “It’s kinda hard, I’ve never done this before”.

This comment further recognizes he perceived his March 19 th situation as unique. [ 33 ] I specifically reject his testimony that many of his interview responses (on both occasions) were “overtalk”. These comments typically expressed as “Yea”, especially on important issues, such as understanding of legal rights, are not merely acknowledgments of Sgt. Eros’ comments. Rather, viewed contextually, they reveal and express an understanding and agreement to questions and comments

posed by Sgt. Eros. [ 34 ] I have insurmountable concerns about the credibility of Lafrance’s evidence. These concerns permeate and colour the entirety of his voir dire testimony. In effect, he was dishonest. Consequently, I reject his testimony where it is not consistent with that of police officers or objectively recorded. I specifically do not believe the testimony of Mr. Lafrance concerning his motivation, his psychological state and his understanding of what occurred during his interactions with police. B. March 19, 2015 Interaction

i) The Initial Encounter [ 35 ] Prior to the March 19, 2017 residence search, Sgt. Eros was tasked with speaking with Lafrance, who had been identified via Yasinski’s cell phone records as an individual who was potentially relevant to the RCMP investigation. The RCMP at this time did not believe reasonable and probable grounds existed for Lafrance’s arrest. [ 36 ] Sgt. Eros had background information about Lafrance but no “real information” about the involvement of Lafrance in the homicide. He was purposely unaware of details to foster natural conversation during the potential interview.

He characterized Lafrance as a “suspect”. [ 37 ] Before encountering Sgt. Eros, Mr. Lafrance had been awakened by three police officers executing the search warrant. Lafrance was told he could not remain in the home while the search warrant was being executed. This was standard police practice and applied to all residence occupants. Outside the residence Lafrance, in the vicinity of police, retrieved his cat which had escaped from inside the residence. Sgt. Eros approached Lafrance in the garage area. After confirming Lafrance’s identity they had a brief conversation concerning the stabbing nearby. Sgt.

Eros told Lafrance he wanted to speak with him about his involvement in an incident that had occurred down the road. [ 38 ] Sgt. Eros testified he asked whether Lafrance would be willing to provide a voluntary statement. Sgt. Eros explained that Lafrance was free to leave, and that it was up to him to decide whether he would accompany Sgt. Eros or make a statement. Lafrance agreed to make a statement, but wanted to first retrieve a cell phone and warm his coffee. [ 39 ] Sgt. Eros and Lafrance discussed how Lafrance would go to the detachment. Sgt. Eros asked Lafrance about the vehicles in the driveway.

Lafrance discussed taking a bus to the detachment. A ride in an unmarked police vehicle was suggested as one alternative. Lafrance chose that option. Sgt. Eros testified that his initial impression was that Lafrance was open, comfortable, polite, and clearly understood their conversation. Lafrance was friendly and displayed no apprehension. In cross-examination, Lafrance agreed he had transportation “options of people who had vehicles at home”. He suggested the bus and stated “I agreed to take the ride offered”. [ 40 ] Despite suggesting bus travel to the detachment, Lafrance had no money for that fare.

He felt “I had to go as they were basically kicking me out of my house”. He added that he believed police had “authority to bring me there whether I wanted to go there or not” adding police “would find means to arrest me or bring me there at a later date”. [ 41 ] En route to the detachment, Lafrance did not object as “once I was with them, I felt I had to stay with them”. [ 42 ] During the 20 minute ride to the Timberlea detachment Sgt. Eros and Lafrance discussed unrelated subjects such weather, hunting, and life in Ft. McMurray vs Ontario. Sgt.

Eros described the conversation on the way to the Timberlea detachment as “lighthearted”. At the Timberlea detachment Sgt. Eros, Lafrance and Sgt. Eros’ partner Corporal Zazulak parked in a back lot and entered through two swipe card doors and went to an interview room. Sgt. Eros reports that throughout this process that Lafrance was not held, or in any sense physically controlled or guided. [ 43 ] I find Lafrance was not physically detained on March 19, 2015. The police direction prohibiting residence attendance during the search warrant execution was a limited prohibition common to all occupants.

Lafrance was not being told to stay with police; he was simply instructed to leave the residence. No other limitations were suggested. Lafrance appears to agree with his mobility options in stating police were “kicking me out of my house”. Under the circumstances, I conclude physical detention does not arise. [ 44 ] Similarly, detention did not occur during the ride to the detachment. Lafrance acknowledged in cross-examination that he knew he was involved in a homicide. He agreed he went to the detachment and then interviewed so he could allay suspicions and be discounted as a suspect.

His comfortable demeanour and engagement indicate his participation was entirely voluntary and a produce of deliberate choice. [ 45 ] There is no evidence to indicate Lafrance would have been physically obstructed if he had sought to leave the RCMP vehicle transporting him to the Timberlea detachment or the interview room at that detachment. The March 19, 2015 Interview [ 46 ] The interview with Mr. Lafrance lasted about 3.5 hours. That time frame included a total of approximately 30 minutes (involving two separate occasions) during which Lafrance was alone in the interview room.

The door to the room was always unlocked. A table and two chairs were the main furnishings. [ 47 ] At the interview outset, Sgt. Eros asks what Lafrance understands is the crime in question. Lafrance responds: “That was homicide.” Lafrance is alerted that anything he says may be used as evidence. Sgt. Eros is explicit that the RCMP view Lafrance as a suspect. St. Eros points out the statement is being recorded. He stresses something that is “important”: the statement is voluntary and Lafrance can leave at any time.

“[Y]ou don’t hafta sit here and speak with me today ... this door right here, it’s - it’s not locked - like you can just kinda open it up ... and you are at any time Nigel free to leave. [ 48 ] Sgt. Eros asks that Lafrance tell him if Lafrance wants to leave because “... we are now technically in a secure environment”. Lafrance can take smoke or bathroom breaks whenever he wants. [ 49 ] Lafrance repeatedly agrees with these statements and when Sgt. Eros asks “Do you have any questions with respect to that side of it?” Lafrance answers “No, not at all.” [ 50 ] Sgt.

Eros repeatedly stresses that Lafrance has rights, and “... that includes the ability to leave whenever you want to ... voluntary that you don’t have to sit here and speak with me.” Lafrance can end the interview at any time. It is “absolutely not the case” that Lafrance is “stuck here”. Throughout this Lafrance agrees, “yeah”, and says he understands. [ 51 ] Approximately the first 15 minutes of the interview were devoted to Sgt. Eros explaining the process and the related legal rights of Lafrance. [ 52 ] Sgt. Eros and Lafrance subsequently review events of the previous several days.

Lafrance attempts to explain what occurred. He gives full and direct answers. [ 53 ] After discussing previous drug transactions, Lafrance describes his dealings with a drug trafficker on the night of the stabbing. [ 54 ] At one point Lafrance’s narrative becomes confusing as to whether there were one or two interactions with a drug dealer on the night of the homicide. Sgt. Eros points out this ambiguity and prompts Lafrance to “really try to think” about what happened. [ 55 ] At the conclusion of the interview, Sgt. Eros asks Lafrance if he has had the opportunity to say everything that he wanted to say.

Lafrance answers he has nothing more to say “I got everything.” [ 56 ] Lafrance expressly confirms he was comfortable with what occurred that day. “Everything was alright ... everything went smooth”. [ 57 ] The interaction now moves to obtaining physical evidence from Lafrance. Sgt. Eros says “... we collect certain pieces of information from people and stuff like that right”. Lafrance is willing to provide the requested fingerprints. I note Lafrance volunteers for fingerprinting even before Sgt. Eros completed his request. [ 58 ] They then proceed to take fingerprints and photographs of Lafrance’s hands.

Throughout these processes Lafrance and Sgt. Eros continue their banter. [ 59 ] I note Lafrance clearly was willing to provide this evidence. He actively cooperated with the fingerprinting, pointing out his hands were oily, and asking whether that would interfere with the fingerprinting process. [ 60 ] Lafrance also confirms he is willing to have the police photograph of his hands. He responds “Yeah Yeah” and then confirms his willingness for photographing. [ 61 ] Sgt. Eros then asks Lafrance about obtaining a bodily material sample for DNA testing. Lafrance has questions about how the DNA sample is obtained.

Sgt. Eros explains the three options The methodology used is up to Lafrance. [ 62 ] Sgt. Eros returns with Sgt. Rob Nason, who will assist in collecting Lafrance’s coat, sweater, and toque, and the cell phone. They then take the DNA sample using a lancet. Again, Sgt. Eros confirms that this is a voluntary consensual process. They review and complete a detailed consent form to document that seizure. [ 63 ] Lafrance also expressly consented, without hesitation to providing a DNA sample. This followed review of a written consent script.

His concern was limited to the methodology for obtaining the sample. [ 64 ] Obtaining certain clothing is also discussed: Q. ... Um the other thing uh is that we're gonna to uh - we'll probably look at uh um taking uh some of your clothing and stuff like that today. A. Okay yeah. [ 65 ] Police believed these items were seizeable pursuant to their execution of the residence search warrant. Lafrance had been wearing this clothing when earlier encountered at the residence. Police also raised exigent circumstances as the clothing could easily be discarded.

The appearance of one clothing item raised the prospect of blood staining. Again, he immediately unequivocally agreed to provide these items to police. [ 66 ] Lafrance is asked whether he would permit examination of his cell phone to obtain information. Lafrance agrees, and warns his cell phone “resets all the time” and that certain content is deleted. [ 67 ] Sgt. Eros stresses again that Lafrance is providing his cell phone voluntarily. He also alerts Lafrance that forensic investigation may recover items such as deleted messages. [ 68 ] I conclude this was also a voluntary step by Lafrance.

I note Lafrance did not merely provide the RCMP with the cell phone and assured them it was not locked with a password or passcode, Lafrance also explained a quirk of that cell phone to assist the RCMP investigators. The cell phone had a bent battery, and that meant the cell phone would reset itself unexpected. The implication behind Lafrance sharing that fact is he wanted the RCMP to be able to fairly evaluate whatever kind of information they might obtained from

the cell phone. [ 69 ] In any event, at the outset of the voir dire , the Crown advised this evidence would not be tendered at trial. Consequently, exclusion of this evidence based upon any Charter breach is moot. [ 70 ] In the circumstances of this case it is inconsequential that the interview occurred in a secure police facility. The objective record of the interview makes it very plain that Lafrance was told he could leave. He also admitted to attending by choice for tactical reasons. This forum also offered privacy and the ability to record interactions.

Additionally the presence of this objective record greatly simplifies for all participants what otherwise may devolve into a credibility contest. [ 71 ] In testimony, Sgt. Eros explained Lafrance was not permitted to leave the interview room without police accompaniment. This was required because the interview was occurring in a “secure” facility. The reasonable inference is that this procedure was not a product of the interview process and was not unique to Lafrance. Rather, it was dictated by police detachment practice. [ 72 ] Mr.

Lafrance testified he believed he was compelled to (“had to”) accompany police and participate in the interview. During examination in chief, he specifically stated “I was not willingly there... I did not think I could leave” the interview. He pointed to multiple reasons for this belief including prior statement experience which I have rejected. He also referenced a general impression of overriding police authority, police banning his home attendance during such warrant execution and passage through 2 secure pass card detachment doors.

He also stated he felt obligated to provide a statement because police would “find a reason to arrest me or bring me there at a later date”. Later, Lafrance repeatedly stated that he answered questions because he wanted the interview to end as quickly as possible. (“I didn’t want to prolong the interview I just wanted to leave.”) [ 73 ] It is clear Lafrance is physically smaller than Sgt. Eros and his partner. This factor, identified in both R v Moran and R v Grant , relates to several points. A person may feel compelled to cooperate because of an imbalance of power or authority, or due to confusion.

However, the record simply does not support this as a basis for why Lafrance, on an objective basis, would have felt he had no choice but to cooperate with the RCMP investigators. However, throughout the process Lafrance never appears to be compelled, frightened or intimidated. He appears at ease. Lafrance is cooperative throughout the interview. His manner is friendly and open. There is no indication of defensive body language. Instead, at points Lafrance leans forward, into the conversation. [ 74 ] I do not accept the accused’s evidence that he believed he was detained on this date.

Overriding and general concerns about his honesty inform that finding. He offers contradictory reasons ranging from compulsion to completing the interview quickly to counter police suspicion. Additionally, in cross-examination, Lafrance agreed he understood police direction that he was free to leave at any time. He also acknowledged tactically answering questions to counter police suspicion. [ 75 ] The March 19, 2015 interview recordings indicate there is a steady dialogue exchange between Sgt. Eros and Lafrance. Sgt. Eros intended this be a conversation, and not an interrogation.

His interview style was deliberately non-accusatory. It was designed to offer Lafrance the opportunity to answer questions “freely and flexibly” and of his “free will”. His interview style was deliberately non- accusatory. [ 76 ] The interview recordings indicate that occurred. Sometimes Sgt. Eros makes suggestions or asks for details. Lafrance’s responses are sometimes brief, sometimes he does not know, sometimes he offers additional details or clarifications. Criticism of the specific language used by Sgt. Eros is not persuasive.

It improperly relies upon parsing and selection of specific exchanges rather than a contextual analysis. Sgt. Eros effectively verified that Lafrance was aware of and understood his Charter rights. During the interview Lafrance repeatedly used language such as “Okay.”, “Yea.” I have previously explained my rejection of his explanation that they were simply overtalk and, at times designed to end the interview as quickly as possible. Instead, they reveal his engagement, agreement and comprehension. [ 77 ] The questioning is focused on information-gathering.

The principle focus of the inquiry was whether Lafrance had communicated with a drug trafficker, and what purchases followed. Lafrance was not confronted with evidence pointing to his guilt. He was not accused of an offence. [ 78 ] This interview occurred in the preliminary stages of an investigation into Yasinski’s homicide. The RCMP had identified Lafrance as a potential suspect by his cell phone communications with Yasinski. Indeed, Sgt. Eros candidly described him as the “only” suspect.

That said, the interview could either have led to information that exonerated Lafrance or identified other potential suspects. On that date (including post interview) police did not have lawful grounds to arrest Lafrance. That arrest does not occur until almost three weeks later. [ 79 ] I acknowledge Mr. Lafrance was youthful, indigenous and had minimal police exposure at that time. However, he was also a high school graduate studying power engineering. He had achieved a “strong” performance in certain university entrance level courses.

Lafrance had also successfully obtained a NAIT certification concerning steam broilers. He was apprenticing for that trade. [ 80 ] This academic background suggests the accused is intelligent. Although his interview responses were generally brief, they also were consistent with a clear, full comprehension of the prompting questions. [ 81 ] He was not unsophisticated.

At best, the accused was naïve in deciding his participation would counter police suspicion. [ 82 ] In conclusion, I find the Defence has not proven on a balance of probabilities that Lafrance was either physically or psychologically detained. [ 83 ] Additionally, I conclude Lafrance’s Charter , s 10(

b) right to retain and instruct counsel without delay, and to be informed of that right were not infringed on March 19, 2015. These rights were only triggered upon arrest or detention. Neither occurred on March 19, 2015.

D. Voluntariness of the March 19, 2015 Statement [ 84 ] I note the Crown does not seek to tender this statement into evidence for any purpose. However, the defence argues related police conduct renders the statement involuntary which taints the April 7, 2015 statement. The defence also argues this police behaviour informs any s 24(2) Charter analysis. [ 85 ] Iacobucci J in R v Oickle at paras 24-26 explains that the critical question when evaluating statement voluntariness is whether the detained person has a meaningful choice to speak or not with state authorities.

Voluntariness is undermined as a consequence of threats or promises, oppression, the absence of an “operating mind”, or police trickery that would “shock the community”. ( R v Oickle at paras 65-69). [ 86 ] The test for voluntariness is objective, but does account for the characteristics of the person who made that statement: R v Singh , 2007 SCC 48 at para 36 . [ 87 ] During the interview, Lafrance was not subjected to any express or implied threats or promises or inducements. At one point, Sgt. Eros states he sees Lafrance going home that day.

However, this simply reflects the investigating purpose and anticipated length of the interview of this interview rather than an improper incentive for Lafrance to cooperate. As noted in R v Richards , 2017 ONCA 424 at para 76 : The mere offer of an inducement is not improper. An inducement only becomes improper when, on its own or in combination with other factors, the inducement is strong enough to raise a reasonable doubt about whether the accused's will has been overborne. [ 88 ] That, most definitely, did not occur during this interview.

Lafrance specifically acknowledges at the end of the interview that he had no concerns about his treatment. Similarly, there is no suggestion of police trickery. [ 89 ] I also conclude the circumstances under which the interview occurred were not oppressive. It occurred in the morning after the accused had been awakened from his sleep. Although relatively long for a non-custodial interview, the elapsed 3 ½ hours was not physically taxing. During that time the accused was not deprived of any necessities. For example, he was offered and received a glass of water.

Lafrance placed no requests for any personal needs. [ 90 ] The manner in which the March 19, 2015 interview was conducted was also not oppressive. Instead, it was a conversation. Sgt. Eros directed his inquiries in an open-ended and non-accusatory manner. In effect, this interview was a direct, fair information gathering procedure. [ 91 ] The impact of police conduct during the interview must consider the unique circumstances and characteristics of Lafrance. He was young but relatively educated and demonstrably intelligent. He deliberately chose to attend and participate.

He was also sober and, as revealed by his answers, understood both what was occurring and his potential jeopardy. [ 92 ] I conclude that Lafrance did not subjectively experience any improper police behaviour during the interview. Certainly, there is no basis for concluding that even if this occurred, that it reasonably affected his participation. There is no evidence Lafrance experienced or become unable to make decisions due to lack of an “operating mind”. He understood what both he and police were stating.

Lafrance also appreciated the consequences of speaking with police in this interview. [ 93 ] Under all the circumstances, and viewed contextually, I conclude beyond a reasonable doubt that the March 19, 2015 statement by Lafrance was voluntary.

Proximity Analysis [ 94 ] Even assuming the Charter rights of Lafrance were violated on March 19 th , a proximity analysis is required to determine its impact on admissibility of the subsequent statement. [ 95 ] The connection between the Charter breach(es) and obtaining of the evidence may be “temporal, contextual, causal” or a combination thereof. [ 96 ] That connection must be “more than tenuous”. [ 97 ] In this case, almost three weeks elapsed between statement dates. That passage of time, in itself, strains the temporal link between statements.

It is not sufficiently proximate to be considered a contributing factor for the seemed statement. [ 98 ] Additionally, the context of the statements varies. Unlike the initial statement, Lafrance was under arrest on April 15 th . Significantly, Lafrance was provided, and exercised, his right to counsel immediately before the second statement. The context is markedly different. [ 99 ] There is also no causal link between the 2 statements. The initial statement did not contribute to the making of the second statement. Indeed, Mr.

Lafrance expressly agreed that the prior statement “had nothing to do” with him providing the April 7, 2015 statement. [ 100 ] Under the circumstances, I conclude the first statement was not a substantial contributing factor for the April 7, 2015 statement. In doing so, I recognize the previous statement was adverted to and the second statement involved the same police interviewer at the same location. However, these similarities did not substantially contribute to, or result in, a derived confession on April 7 th .

IV. The April 7, 2015 Events The Alleged Charter Breaches [101] The Defence argues that Lafrance’s April 7, 2015 statement was obtained in breach of Lafrance’s s 8, 9 and 10(

b) Charterrights. [102] The alleged Charter

section 8 and 9 breaches involved police misconduct predating the accused’s April statement. Defenceargues such breaches taint the subsequent statement and render it inadmissible. [103] Since I conclude no such breaches occurred, this argument is dismissed. [104] This leaves two issues: were Lafrance’s Charter, s 10(

b) rights violated on April 7, 2015; and was that statement voluntary? The Alleged s 10(

b) Charter Violation [105]

Section 10(

b) of the Charter states: Everyone has the right on arrest or detention to retain and instruct counsel without delay to be informed of that right ... [106] The s 10(

b) Charter right imposes both “informational” and “implementation” duties upon police. In R v Bartle, (SCC), [1994] 3 SCR 173 at 192, 118 DLR (4th) 83 the Court stated: ... s. 10(

b) of the Charter imposes the following duties on state authorities who arrest or detain a person: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aidand duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right(except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger). [107] The first duty is informational.

The second and third duties involve as implementational duties. The Informational Duty [108] This duty requires police to provide a detained or arrested person (such as Mr. Lafrance) a reasonable opportunity toimmediately exercise the right to counsel. As a matter of routine, police must inform that person of the existence and availability ofapplicable systems of duty counsel and legal aid to offer preliminary legal advice.

Police must also provide advice on accessing counsel. [109] At a minimum, the arrested person must generally understand his jeopardy and appreciate the consequences of deciding for oragainst exercising his right to counsel. [110] In this case the arrest occurred at the accused’s residence. After Lafrance was fully dressed he was immediately informed byConstable Atwood both that he was under arrest for murder and of his right to remain silent: Q. (Unintelligible) provide you with a phone number and contact for legal aid. Do you understand that? A. Yeah. Q. ...

So we can hook you up with a lawyer, do you want to talk to a lawyer? A. Oh yeah. Q. ... And you understand that you don’t have to speak to me okay. A. Yeah. Q. Alright, but anything you do say to me can be used in court as evidence against you, do you understand? A. Yeah. [111] Constables Atwood, Aubin and Lafrance then travelled a short distance in an RCMP vehicle. The vehicle is stopped to permitCst. Atwood to arrest, Charter and caution Lafrance from a detailed written script. Constable Atwood stresses Lafrance should payattention because “... this stuff’s pretty important ...”.

Constable Atwood identified himself, indicates the arrest is for the murder ofYasinski, and that Lafrance will be recorded except while communicating with counsel. Constable Atwood asks if Lafrance understands.Lafrance says “Yeah”. [112] The arrest script and audio transcript reveal the following exchange:

You have the right to retain and instruct counsel without delay. This means that before we proceed with our investigation you may call any lawyer you wish from a free legal advice service immediately. If you want to call a lawyer from a free legal advice service, we will provide you with a telephone and you can call a toll-free number for immediate legal advice. If you wish to contact any other lawyer, a telephone and telephone book will be provided to you. If you are charged with an offence, you may apply to legal aid for assistance. Do you understand? Response from Mr.

Lafrance: “Yes” Tell me what this means to you. Response from Mr. Lafrance: “I can get assistance in court, I can get Legal Aid or my own lawyer. Do you want to call a free lawyer or any other lawyer? Response from Mr. Lafrance: “Free lawyer yes.” [ 113 ] Lafrance acknowledged he was told he has a “right to retain and instruct a lawyer without delay”, but denied understanding what it meant to “retain a lawyer”. Lafrance testified he thought that meant a lawyer would be available during his court appearances: ...

I was unaware of the matter of how a lawyer assists before the court proceedings, so I thought it was just during the court process that I had a lawyer with me. [ 114 ] However, Constable Atwood had expressly stated this right arose upon police detention: ...So you got to be careful, so like I said, you’ve been arrested. And you will be charged with the murder of Anthony Yasinski. All persons detained in police custody have the right to immediate legal advice regardless of their financial status. Okay?

So detained persons also have the right to choice of counsel. [emphasis added] [ 115 ] Additionally, Lafrance, during testimony, recognized this right permitted access to free advice from a lawyer: Q And you can get free legal advice so it wouldn’t cost you any money? A Yes. Q And you understood that you could call a lawyer and there would be one for free? A I didn’t -- I understood that I could call a lawyer, but I wasn’t sure when or who -- who I would be calling. I have never gone through the process. Q No, fair enough. I understand that. But did you understand what "free legal advice" means?

A Free legal advice, yes. Q Okay. What does that mean? A That I could get advice from a lawyer. [ 116 ] Lafrance was asked what it meant when he answered “Yeah.” to being told that he did not have to speak to police, and that anything he said could be used in evidence. Lafrance completely denied any understanding of his rights: “I didn’t understand what he was saying. I was just acknowledging that I heard what he said.” [ 117 ] I do not accept the accused’s evidence that he misunderstood these multiple police instructions. Previously articulated concerns about his credibility inform that finding.

Police do not suggest this right involves counsel attendance and Lafrance does not express any such understanding. Rather, he repeatedly unequivocally acknowledges his comprehension of police statements. Additionally, his specific response on this issue reveal a proper understanding of this right. I conclude Lafrance properly appreciated his s 10(

b) Charter informational right. His express assertions of understanding multiple police instructions and his actual exercise of that right evidence prove such understanding. [ 118 ] I find this informational duty was discharged. Lafrance was arrested for first degree murder. The victim was identified. His jeopardy was undoubtedly evident. He was immediately informed of his right to retain and instruct counsel without delay. Very shortly thereafter police recited to Lafrance a more detailed script of that right. He was also directed to carefully listen to this instruction.

In emphasizing the importance of listening to police comments, Lafrance was expressly alerted to the consequences of his choice to retain and instruct counsel. This right was again further reviewed en route to the police detachment. Viewed in totality, Lafrance was repeatedly and fully informed of this Charter right in a conscientious and lawful fashion. The Implementational Duty [ 119 ] This duty requires police to facilitate a reasonable opportunity for an arrestee to contact counsel and prohibits questioning until this has occurred. [ 120 ] It appears defence does not contest this factually occurred.

Rather, Lafrance argues he did not properly understand this s 10(

b) Charter right.

[ 121 ] Upon arrival at the RCMP station Lafrance is searched and immediately taken to a telephone room. [ 122 ] He was supplied with telephone books and a telephone number for Legal Aid Alberta. Lafrance was told that if he wanted a free lawyer he could call the Legal Aid Alberta number. He was instructed on how to place that telephone call. [ 123 ] Cst. Atwood observed Lafrance speaking to someone for almost 15 minutes. [ 124 ] Cst. Atwood spoke with Lafrance after he had an opportunity to consult with a lawyer.

The officer asks, as a compound question, whether Lafrance understood the advice, and if the lawyer would be attending the RCMP detachment. The audio recording, as amplified by testimony of Cst. Atwood, reveals two separate replies to these separate questions. In a discernible pause following inquiry about whether Lafrance understood the advice given, Lafrance affirms he did understand such advice. Cst. Atwood testified the accused responded “yes” at that time. In cross-examination Lafrance agreed it was possible he gave that specific answer.

He also responded “yes” to whether he understood the legal advice just received. His “No” reply was responsive only to whether counsel would be attending the detachment. [ 125 ] I accept the evidence of Cst. Atwood. His memory was clear, supported by the audio recording and ultimately acknowledged by Lafrance. [ 126 ] The circumstances clearly reveal Lafrance was provided a reasonable opportunity to contact counsel. Police facilitated his exercise of that opportunity. Questioning did not begin until after the police interviewer was informed that Lafrance had initiated counsel.

Lafrance also argued he was unlawfully denied the opportunity to have further consultation with counsel during the interview. [ 127 ] Lafrance contends that further consultation was required. In particular Lafrance argues he was entitled during the interview to contact his father for the purpose of obtaining counsel. [ 128 ] As context, during the interview, Sgt. Eros states he knows Lafrance is not being truthful, and that Lafrance killed Yasinski. [ 129 ] After a requested bathroom break Lafrance states: A. Well I would – ah I want to talk to my dad before I continue. Q. Ok wh – why do you say that? A.

Cause well he’s – well he’s my only chance of getting a lawyer and I just – I don’t know. Q. Ok at this time -. A. I don’t – I’d rather have that on my side. Q. Ya Nigel you’re – you’re more than welcome to – to have a lawyer at any time. A. Um. Q. Right um you were provided an opportunity to speak to a lawyer ok. A. Ah well Legal Aid. Q. Ya, ya, it’s still a lawyer. A. Ya. Q. Right, it’s still a lawyer and they – they’ve – they’ve given some – some advice right? Um I can probably you know – I don’t know, I can’t guarantee making arrangements for you to speak to your dad at this point and time. A.

Ya. [ 130 ] Sgt. Eros states police have met their obligation to provide Lafrance an opportunity to obtain legal advice. That has occurred. Sgt. Eros will not permit a lawyer’s attendance during the interview. A. Well I – I just – I want a lawyer before I go forward with anything else. Q. Ok you’ve had your opportunity Nigel right? Like I – like I explained to you, you’ve had an opportunity to speak to a lawyer – we don’t ah -. A. Well no they told me – they told me to get a lawyer before I continue talking. Q. Ok what do you mean by told you get a lawyer? A. Like someone that can come down and sit with me. Q.

Ok. A. Instead of just over the phone. Q. There’s a person that ah you know what – and the way that that kinda goes ah – I won’t say it’s, it’s bad advice but it’s maybe miss – a little bit miss ah – miss ah – interrupted. Um there’s not any time or any process during our interview ... Where we’re gonna have a

lawyer sitting in the room with us. [ 131 ] The Supreme Court of Canada in R v Sinclair , 2010 SCC 35 , [2010] 2 SCR 310 the Court determined: ...

Section 10(

b) should be interpreted in a way that fully respects its purpose of supporting the detainee’s s. 7 right to choose whether or not to cooperate with the police investigation.

Normally, this purpose is achieved by a single consultation at the time of detention or shortly thereafter. ... [Emphasis added.] [ 132 ] There are, however, limited exceptions to the “a single consultation” rule: 1. police intend to employ a new or unusual investigative procedure, such as an in-person line-up or a polygraph test (para 50); 2. a change in jeopardy where an investigation “... takes a new and more serious turn ...” (para 51); and 3. where the police suspect that a detainee who has waived their right to counsel does not understand that right (para 52). [ 133 ] A renewed Charter , s 10(

b) right may also emerge when it is “clear” that changed circumstances or developments means that in the context of this detainee the initial consultation was inadequate: R v Sinclair , at paras 57, 65 . A general right to further counsel contact or to counsel attendance during the interview does not otherwise exist. [ 134 ] In cross-examination Sgt. Eros testified that, in this interview, additional counsel consultation was not a Charter right. He explained no illegal step occurred when he denied that access to either a lawyer or Lafrance’s father.

In his opinion, Lafrance had exercised his opportunity to access counsel. There was no reason emerging from their interaction for a lawyer to be present at the interview. He believed the interview could lawfully continue. [ 135 ] I agree. Sgt. Eros was correct in informing Lafrance he had exercised his “single consultation”, and that satisfied his legal entitlement. R v Sinclair (para 42 ) is explicit, that there is no right to have a lawyer physically present during an interrogation. Articulated grounds in that case for further counsel contact do not arise here.

Similarly, no other basis from that non exhaustive list are engaged. [ 136 ] Based upon all the evidence, I conclude the police fully discharged their Charter , s 10(

b) obligations on this date. By definition, the accused has not discharged his evidentiary onus of proving a s 10(

b) Charter violation occurred. Voluntariness of the April 7, 2015 Statement [ 137 ] The interview occurred in the same RCMP detachment room used on March 19, 2015. [ 138 ] Sgt. Eros identified himself as an RCMP officer. He asks whether Lafrance has been mistreated, or if any RCMP officer has caused Lafrance problems. Lafrance answers “Not at all.” Sgt. Eros stresses something “that’s really important ... has anybody offered you any type of favour or promise or anything like that?” Lafrance says no. Sgt. Eros confirms this response. [ 139 ] The officer then asked Lafrance to recount earlier events.

Lafrance says the RCMP arrived at the 344 Mustang Road residence, his girlfriend woke him up, and the officers informed Lafrance was being arrested for murder. Lafrance stated he had earlier “called the legal aid.” [ 140 ] Sgt. Eros asks whether Lafrance has food, and offers to provide a meal they would eat together. After some discussion they settle upon ordering “Mr. Sub”. Lafrance asks if he can take a smoke break. Sgt. Eros indicates that is no problem, arrangements can be made. Sgt.

Eros provides Lafrance with water, and they discuss subjects unrelated to the arrest and police investigation, including some traffic fines Lafrance had incurred, Lafrance’s family and their circumstances, and Ontario hockey teams. [ 141 ] After eating, Lafrance, Sgt. Eros, and a third officer break so that Lafrance can smoke in a vehicle bay. [ 142 ] They return to the interview room, and the discussion turns to the Yasinski murder investigation. They start by reviewing events, including drug purchases in the period around the homicide. [ 143 ] Sgt.

Eros now becomes more direct stating he wants to “know how and what happened”. Lafrance asks if he can talk while he is smoking. Sgt. Eros confirms they can take smoking breaks. He also states Lafrance had falsely stated during the first interview that he gave Yasinski a gold chain as collateral. He informs Lafrance police found this chain during the residence search. Sgt. Eros says he wants to give Lafrance the opportunity to tell the truth. [ 144 ] Lafrance becomes emotional, and discloses he killed Yasinski: Q. What happened that night Nigel? A. (Sighs) (Sobs) I don’t know what.

Well I do know – I just – you know my dad, he always goes out, he drinks like every night and there’s no food in the house so I was hungry, me and my girlfriend both and needed money. I didn’t want to. It’s not who I am. Q. It’s a tough position to be in. A. (Sniffs) You know I fuckin – I’ve (unintelligible) for work a lot, but can never find anything and you know, you can only be hungry for so long. (Sniffs) (Sighs) Q. So what happened Nigel?

A. I did it. Q. What’s that? A. I did it. Q. What do you mean by that? A. I killed him. (Sobs) It’s not – not what I wanted to do. [145] Lafrance then openly discusses in detail what happened and why. He also discusses Michalla’s involvement before receivinganother requested smoke break. [146] On return, Lafrance provides more information about what occurred during and after the homicide. [147] Sgt. Eros provides a map of the area where the crime occurred. Lafrance marks the map to indicate occurrence locations. [148] Sgt. Eros asks whether Lafrance had brought anything other than the knife to the rendezvous.

After replying no, Lafrance thenremembers creating a false money roll of Canadian Tire money which he brought to the rendezvous. [149] After a further bathroom visit, Sgt. Eros reviews a PowerPoint presentation with Lafrance. It includes RCMP forensic evidenceand photographs. They use that information to clarify and confirm various facts. Lafrance discloses where he discarded the knife afterthe stabbing. [150] Lafrance asks if Michalla will get in trouble if she tries to cover up for him. Sgt. Eros responds that he does not make thosechoices.

He believes the chief concern is whether she had participated in the offence or helped destroy evidence. Lafrance asks if hecould meet with Michalla. Sgt. Eros will ask, but makes no promises. [151] Sgt. Eros stresses that Lafrance has the opportunity, if he wishes, to add to his comments. Lafrance does not do so. Lafranceasks for another smoke break. After that Lafrance prepares a letter to Yasinski’s family. [152] Conversation turns to Lafrance’s emotional state, he says he is “not good” and feels “terrible”. Sgt. Eros asks about any physicalor mental issues.

Lafrance discloses he has thought of “ending my life”. Sgt. Eros encourages Lafrance to ask for help if he needs it. Headds that Lafrance should tell him if Lafrance believes he has been mistreated. No such complaint is made. [153] The test for determining whether an accused had an operating mind when making a statement is not particularly onerous.

It“does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officerswho can use it to his detriment” (R v Whittle (1994), (SCC), 92 CCC (3d) 11 (SCC). [154] At the interview Lafrance was not under the influence of drugs or alcohol. He had slept approximately six hours before beingarrested that morning. The record clearly reveals Lafrance comprehended his statements to an identified, recognizable police officer. Hisresponses were coherent and properly responsive. He presented as an engaged and aware interview participant.

Lafrance understood whatpolice said to him including the legal consequences of making this statement. I find Lafrance had an operating mind at that time. [155] I also conclude Lafrance was not subject to any promises, threats or inducements during his April 7, 2015 statement. The recordreveals that Sgt. Eros regularly appealed to the good character of Lafrance and the need for honesty. This tactic was entirely permissible. [156] Lafrance claimed his confession to having killed Yasinski was coerced. He “... felt pressured. ... I felt like I was backed into acorner ...”. However, Lafrance agreed that Sgt.

Eros’ conduct during the April 7, 2015 interrogation was polite and not threatening.Lafrance was not assaulted. He was not promised any inducements. The same was true of the other officers with whom Lafranceinteracted. While finding the interview “scary”, there is absolutely no evidence that the accused’s will was overborne by any suchconduct. During the April 7, 2015 interrogation Lafrance expressed guilt and regret. That was at least a part of his motivation to disclosecommitting the homicide. [157] I also conclude Mr. Lafrance was not subjected to an atmosphere of oppression when he made this statement.

Lafrance wasresponsibly provided with food, drinks, bathroom access and multiple smoke breaks. Sgt. Eros had asked Lafrance “to alert him to anypersonal needs” that arose during the interview. The interview was not of undue length. A considerable portion of this approximatelyfour hour period involved a mix of eating, unrelated banter, bathroom and smoke breaks. The first question related to the homicide didnot occur until 35 minutes after the interview start. Notably, Lafrance testified Sgt.

Eros had not “put words into his mouth” during thisinterview. [158] The questioning was designed to elicit a statement from Lafrance about his involvement with Yasinski. Admittedly, thequestioning was, at times directly accusatorial. He was presented with assertions that police had evidence contradicting his statements.This included police presentation of real evidence. [159] As earlier stated the impact of police conduct must account for the particular circumstances and characteristics of Mr.

Lafrance.My rationale for finding he did not subjectively experience improper police behaviour on April 7, 2015 mirrors those advanced indiscussing the initial interview. [160] Based upon the totality of circumstances, I conclude the Crown has proven beyond a reasonable doubt that Lafrance’s statementto the RCMP on April 7, 2015 was voluntary. The Alleged

Section 8 Charter Breaches

[161] I have previously ruled police did not violate the Accused’s s 8 Charter rights during the March 19, 2015 interview. In anyevent, the Crown does not seek to adduce this evidence. [162] The defence alleges various other breaches of the Accused’s s 8 Charter rights protecting against unreasonable search orseizure. Sufficiency of Informations To Obtain A Search Warrant [163] Judicially authorized search warrants are presumed to be lawful.

The review standard is described in R v Garofoli, (SCC), [1990] 2 SCR 1421: If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that theauthorizing judge could have granted the authorization, then he or she should not interfere.

In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is todetermine whether there continues to be any basis for the decision of the authorizing judge. [164] In this case defence counsel expressly “is not ascribing bad faith” to police in drafting the Informations To Obtain. Rather, hesuggests police error or misunderstanding in describing their factual intent.

For example, he argues that police improperly stated inconclusory fashion, that Lafrance was “not arrested or detained” and that Lafrance had “consented” to certain seizure(

s) during his initialinterview. [165] I note the affiant, Cpl. Youngstrom was sensitive to his obligation to provide full, frank and fair disclosure in drafting searchwarrant documents. I find that duty was discharged. [166] The defence argument largely rests upon a compounding of alleged Charter violations which were not disclosed to the issuingjustice. My findings that no alleged Charter breaches occurred dismisses that argument.

Unreasonable Conduct During Search Warrant Execution [167] The defence argues police unlawfully seized clothing, knives and phones during the residence search as they were not “things”specifically authorized by the search warrant terms. The warrant referred only to “Blood and Blood stained clothing”. [168] I reject this argument.

Section 489 of the Criminal Code states: Seizure of things not specified 489

(1) Every person who executes a warrant may seize, in addition to the things mentioned in the warrant, any thing that the personbelieves on reasonable grounds (

a) has been obtained by the commission of an offence against this or any other Act of Parliament; (

b) has been used in the commission of an offence against this or any other Act of Parliament; or (

c) will afford evidence in respect of an offence against this or any other Act of Parliament. Seizure without warrant

(2) Every peace officer, and every public officer who has been appointed or designated to administer or enforce any federal or provinciallaw and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a place pursuant to awarrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds (

a) has been obtained by the commission of an offence against this or any other Act of Parliament; (

b) has been used in the commission of an offence against this or any other Act of Parliament; or (

c) will afford evidence in respect of an offence against this or any other Act of Parliament. [169] During execution of this valid search warrant, police seized certain items including clothing, knives and cellular telephones. Iaccept police testimony that blood staining is difficult to determine upon initial observation. That comment is also applicable to theknives seized from the residence. Additionally, police were aware the homicide involved that weapon type. [170] Police testified that, from experience, cellular phones commonly afford material evidence.

This is especially so in casesinvolving drug transactions. [171] Under the circumstances, I conclude police had requisite belief to seize these items under Criminal Code s 489. Any testimonysuggesting they seized these items upon speculative or suspicion is contrary to their more detailed explanation that these items have beenused, will afford evidence of the homicide. [172] The defence also claims that extensive photographing during the residence search is a search and seizure. I do not accept thatargument. Photographs were made as an ancillary step in the search process.

They simply record what police would otherwise haveviewed. Photographers of a search location is an efficient method to objectively document the location, location and state of evidence.Police properly described full photographing as a “best practice”. I agree. It equally protects the accused’s interests, integrity of evidence.

Filing of Reports To A Justice [ 173 ] The Defence seeks to have certain items seized by the RCMP excluded from evidence because the RCMP allegedly failed to timely file Reports to A Justice as required by the Criminal Code. [ 174 ] There was some dispute between the parties about whether reporting timelines were met. Given my conclusion on applicable law, this factual dispute does not require resolution. [ 175 ] Defence contends that a breach of the various Criminal Code reporting processes is a breach of Charter , s 8.

R v Garcia- Machado , 2015 ONCA 569 , 337 OAC 302 and R v Craig , 2016 BCCA 154 , 335 CCC (3d) 28 are cited in support. [ 176 ] Alberta courts have adopted a different approach, and rejected that a failure to meet Criminal Code reporting criteria is a breach of a Charter right: R v Villaroman , 2012 ABQB 630 , 557 AR 1; R v Croft , 2014 ABQB 206 , 605 AR 55; R v Balla , 2014 ABQB 127 , 583 AR 79; R v Eddy , 2016 ABQB 42 , [2016] 3 CTC 90. [ 177 ] I am not subject to any binding authority on this point.

I prefer the approach adopted by the Alberta Court of Queen’s Bench and conclude no Charter , s 8 breach arises where deadlines for search warrant reports are not met. These filing requirements engage logistical and property management processes rather than Charter rights. Admissibility Of After The Fact Conduct [ 178 ] On November 17th, 2017, I provided counsel with a very brief oral

summary of my voir dire rulings to assist their trial preparation. That

summary position was based upon the joint position of counsel that after the fact conduct was absolutely inadmissible to prove the accused's level of culpability. Upon subsequent review of additional, persuasive, and contradicting case law, the Crown has resiled from that position. This ruling accepts that position change to permit an informed analysis. This altered position does not prejudice the accused who has not yet testified. [ 179 ] In that

summary, I stated the three letters authored by the accused are properly characterized as after the fact conduct. I concluded they were inadmissible for the purpose of proving the intent of the accused, however, this evidence was admissible for the limited purpose of assessing the accused's credibility. [ 180 ] After the trial started Crown requested clarification of the extent to which the letters would be used to assess credibility. They agreed this clarification need only occur before the expected testimony of Mr. Lafrance. [ 181 ] In preparing my response, multiple concerns emerged.

Most significantly, admissibility of after the fact conduct involving the accused, disposal of the knife, and of blood-splattered clothing was not raised. Additionally, after hearing testimony, defence counsel has stated self-defence is a live issue. He will now also be requesting the jury be addressed on the impact of cocaine intoxication and sleep deprivation upon the accused's state of mind when the homicide occurred. [ 182 ] In general, unless functus, the trial judge may reconsider, vary, or even revoke a prior trial ruling.

This power clearly exists where a material change in circumstances has occurred after issuance of the initial order. I agree with both counsel that a material change has occurred, and my initial ruling may be reconsidered. I also agree, again with both counsel, that neither party is prejudiced by this process. [ 183 ] The Crown now seeks admission of three types of after the fact conduct evidence at trial. They involve the accused’s discarding of the knife, subsequent disposal of his blood-stained clothing, and three letters authored by him.

The defence accepts these actions constitute after the fact conduct evidence. I agree. The Law [ 184 ] In R v Barton , 2017 ABCA 216 at paras 57-59 the Court reviewed general principles applicable to this type of evidence: 57 "After the fact conduct" or "post offence conduct" -- which includes actions and words -- is a form of circumstantial evidence. The trier of fact is attempting to draw inferences about what occurred at the time of the alleged crime by reference to what happened afterward.

Since after the fact conduct is once removed from the events, drawing inferences based on that conduct may be more difficult than doing so from an accused's words and actions at the time of the offence. 58 Nevertheless, while special limiting instructions may sometimes be necessary, this evidence is presumptively admissible: R v White , 2011 SCC 13 , [2011] 1 SCR 433 at para 18 [ White (2011)] . Hence, the trial judge, as the evidentiary gatekeeper, must determine the relevance and purpose for which the proposed evidence is tendered: White (2011) , supra at para 22.

It is an error of law for the trial judge to fail to assist the jury in understanding the relevance of specific after the fact conduct to live issues in a trial.

Most important, the trial judge should outline to the jury the reasonable inferences they may draw from after the fact conduct and ensure that unreasonable inferences are not put to the jury: White (2011) , supra at para 167. 59 After the fact conduct may support certain inferences, including that (1) the defendant did not act lawfully (unlawful conduct or culpable act -- consciousness of guilt); and (2) the defendant should or should not be believed (credibility): Faisal Mirza , Criminal Jury Charge Practice (Markham: LexisNexis, 2015) at 111-112. [ 185 ] After the fact conduct or post offence conduct - which includes actions and words - is a form of circumstantial evidence.

The trier of fact is attempting to draw inferences about what occurred at the time of the alleged crime by reference to what happened afterward. Since after the fact conduct is once removed from the events, drawing inferences based on that conduct may be more difficult in doing so from an accused's words and actions at the time of the offence.

[186] Nevertheless, while special limiting instructions may sometimes be necessary, this evidence is presumptively admissible: R vWhite, 2011 SCC 13, [2011] 1 SCR 433 at para 18 [White (2011)]. Hence, the trial judge, as the evidentiary gatekeeper, must determinethe relevance and purpose for which the proposed evidence is tendered: White (2011), supra at para 12. It is an error of law for the trialjudge to fail to assist the jury in understanding the relevance of specific after the fact conduct to live issues in a trial.

Most important, thetrial judge should outline to the jury the reasonable inferences they may draw from after the fact conduct and ensure that unreasonableinferences are not put to the jury; White (2011), supra at para 167. [187] After the fact conduct may support certain inferences, including that, (1) the defendant did not act lawfully, (unlawful conductor culpable act - consciousness of guilt); and (2) the defendant should or should not be believed (credibility); Faisal Mirza, Criminal JuryCharge Practice (Markham; LexisNexis, 2015) at 111-112. [188] In R v White, 2011, SCC 13 at para 42 the Court recognized after the fact conduct may be relevant to the accused's degree ofculpability.

The Court stated: … [this] depends entirely on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial.There will undoubtedly be cases where, as a matter of logic and human experience, certain aspects of the accused’s after the fact conductsupport an inference regarding his level of culpability. [189] In R v White , (SCC), [1998] 2 SCR 72 at para 32 the Court discussed admissibility of after the fact conductwhere the first degree murder offence was alleged to be planned and deliberate.

Potential relevance included: Cases where the accused has admitted to committing a physical act but asserts that act was justified in some way; in those circumstances,act of flight or concealment might constitute some evidence from which along with other evidence, the jury could infer that the accusedwas conscious that he or she had committed a culpable act and had not, for example, acted in self-defence. Application To This Case [190] This ruling is predicated upon repeated defence counsel assertions that Lafrance will testify at trial.

It also assumes that duringtestimony, Lafrance will raise evidence regarding self-defence and his state of mind when the offence occurred. Noting the prospectivenature of those circumstances, the jury charge will respond to the actual trial evidence. The Knife [191] There is evidence that Lafrance attempted to hide the knife he had used to kill Yasinski. Following his confession, police withsome difficulty located the knife on top of a fence line. [192] The accused unsuccessfully attempted to enter a guilty plea to manslaughter at the trial outset. I understand he will make asimilar admission upon testifying.

He is also expected to testify about self-defence. [193] However, there is no guarantee Mr. Lafrance will actually testify. Consequently, there is uncertainty about evidence involvingthe alleged unlawful conduct. [194] Under the circumstances, this evidence is relevant and admissible for the purpose of determining whether he committed theunlawful act of homicide. It is also admissible to assess his state of mind capacity and whether he acted in self-defence. Additionally, itis admissible for the purpose of assessing the credibility of the accused's evidence.

However, this evidence has no probative value inassessing the accused's level of culpability. [195] The Crown submits R v Rodgerson, 2015 SCC 38 offers a factual parallel to this case. The Supreme Court of Canadadetermined evidence of concealment and cleanup was relevant on the issue of intent for murder. Specifically, this evidence couldpotentially support an inference he was hiding the “extent” of the crime.

The Court had earlier observed (at para 19) that the “cornerstoneof the Crown's case was the nature and extent of the injuries … and the degree of force required to inflict them. [196] I conclude in the circumstances of this case that evidence of clothing (and knife) disposal and concealment is not relevant to thelevel of culpability. Unlike in Rodgerson it is not directly factually linked to proving the cornerstone issue in this case. Additionally, Ifind the available inferences to be equally consistent with committing manslaughter.

Disposal Of Clothing [197] Evidence has been adduced that the accused removed, bagged and arranged disposal of blood-stained clothing he was wearingin committing the homicide. [198] My analysis and conclusion regarding the knife is equally applicable to this after the fact conduct evidence. The Letters [199] The Crown also seeks to tender three after the fact conduct letters into evidence.

These involve the accused's undated letter toMichalla Jones, and February 21, 2016 and March 11, 2016 letters to Kaven Foley. [200] I disagree with defence counsel that, in determining admissibility, these letters require segregated analysis. As observed in R vBarton at para 66, “Conduct is not assessed in a freeze-frame manner”. Additionally, it is necessary in the circumstances of this case toconsider these letters collectively and contextually to properly understand them. They are inextricably linked by topic, and at least in

part, by time. [201] In para 2 of his undated letter to Michalla Jones, the accused wrote: At my preliminary, I know it will be hard for you, but you need to go on the stand. What I need you to do is tell them you were under theinfluence when the incident happened AND when you were questioned by the police (which isn't actually untrue!) MOSTIMPORTANTLY I NEED you to say that I didn’t plan on killing him … Tell them I just planned on robbing him! That is the part ofyour statement that is really screwing me over!

I know it's not your fault, and I don't blame you for a single thing that ever went wrongbut I really need you to be strong and do this for me, baby. I know it's scare but I know you can do it!! What you say at my preliminary isgoing to have a big effect on what happens. [202] In the February 21, 2016 letter to Kaven Foley, the accused asked him to inform Michalla that he will pay her money to notattend court and testify.

The final March 11, 2016 letter from Lafrance requests Foley to instruct Michalla Jones to testify and state, “Iplanned to rob him, not kill him”. [203] The central trial issue concerns the accused's intent in committing homicide. In particular, was it planned and deliberate. [204] There is already evidence before the jury on this issue. Mr. Lafrance discussed his intent during his confession. He alsodiscussed his conversation with Michalla Jones immediately before, and about, the homicide. It is anticipated the accused duringtestimony will further speak about intent.

Michalla Jones has already testified about the accused's stated intention to her during theirconversation before the homicide. She admitted lying to police about her early statements on that issue. [205] These letters directly reference the very issue of intent. The letter to Michalla exhorts her to testify Lafrance didn't plan thekilling; rather he only planned to rob Yasinski. In the next letter, Lafrance attempts to bribe her silence.

The final letter essentially repeatshis initial request. [206] These three letters viewed collectively, in the context of all trial evidence, could support an inference regarding his level ofculpability - including whether the homicide was planned and deliberate. [207] The nature of this conduct is undisputed. It also involves multiple related efforts to influence testimony on a core issue.

Giventhe nature of the conduct, its relationship to the entire record, in which evidence of this conversation has already been raised and thesignificance of the issue of these letters address, I find they have clear probative value. I also conclude this conduct is not equallyconsistent with guilt and innocence. Accordingly, it is not rendered irrelevant on that basis. [208] Finally, it is sufficiently probative to overcome any prejudicial effect. It is real and reliable evidence. It raises a potentialinference, as circumstantial evidence, that the accused committed and planned a deliberate murder.

A potential competing, but weakerinference, is that Lafrance wished to avoid Jones testifying to minimize confusion about his true intention. In essence, he wished tominimize chances of an improper first-degree murder conviction. [209] I am cognizant that my role is that of gatekeeper. It is for the jury to choose between any competing inferences. I note andaccept that a proper jury charge will address any risk of prejudice. [210] Accordingly, I conclude these three letters are admissible as after the fact conduct for multiple purposes.

They are admissible onissues of the accused's intent, his state of mind, self-defence and general credibility. In arriving at this conclusion, I specifically findapplicable the grounds of potential relevance cited earlier in R v White, (SCC), [1998] 2 SCR 72 at para 32. H

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