R v Hamelin, 2021 ABQB 443

Court of Queen’s Bench of Alberta Citation: R v Hamelin, 2021 ABQB 443 Date: 20210607 Docket: 191178623Q3 Registry: Grande Prairie Between: Her Majesty the Queen Crown - and - Allan William Hamelin and Harlin Dallas Martineau Defendants 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given to the jurors to separate, information regarding any portion of the trial at which the jury is not present shall not be published, broadcast, or transmitted in any way. NOTE: This decision is available from the court file.

It may be published after the jury retires to consider its verdict. Editorial Notice: The restriction on publication ended on March 20, 2023. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.A. Neufeld _______________________________________________________ I. Introduction [ 1 ] Harlin Martineau is charged, along with Allan Hamelin, with first degree murder and indecent interference with human

remains in connection with the death of Barry Goodswimmer on or about June 16, 2019. [ 2 ] Mr. Martineau was arrested at approximately 11:00 p.m. on the evening of June 16, 2019 at his home on the Sturgeon Lake Cree Reserve, and brought to the Valleyview RCMP detachment for holding. The following afternoon, police investigators determined that there was reason to believe that Mr. Goodswimmer may have been killed. The RCMP major crimes unit was notified. The search for Mr. Goodswimmer continued. [ 3 ] On arrival in Valleyview, a member of the major crimes unit (Cst.

Hoeksema) was assigned to attend to a bail appearance for Mr. Martineau. This was done at approximately 11:30 p.m. on June 17, 2019, at which time duty counsel appeared by telephone for Mr. Martineau and the matter was adjourned to June 20, 2019. [ 4 ] On the following afternoon, Mr. Martineau was brought from his cell for questioning by two other members of the major crimes unit—Constable Melissa Smits and Constable Kire Kondoski. Approximately three hours into a four hour interview, Mr. Martineau agreed to “come clean” regarding his role in Mr. Goodswimmer’s disappearance, and advised his interviewers that Mr.

Goodswimmer was indeed deceased. [ 5 ] The trial on these charges is scheduled to commence on June 7, 2021. [ 6 ] The Crown seeks to admit Mr. Martineau’s interview into evidence and applies for a determination of voluntariness. The Accused opposes that application, and has brought a Charter motion of his own alleging a breach of s. 10 (

a) and (b), as well as s. 7. [ 7 ] A blended voir dire was held on April 18 and 19, 2021. During the voir dire , I heard testimony from various members of the investigating team, including Cst Hoeksema, Cst Smits and Cst Kondoski. The video and audio recordings of the interview were entered into evidence. Mr. Martineau elected not to testify. [ 8 ] I have determined that the Crown has not proved beyond a reasonable doubt that the statement was voluntarily given. I have also determined that Mr.

Martineau’s Charter rights to counsel and to remain silent were not breached. [ 9 ] My reasons for those determinations follow. II. Voluntariness A. General Principles [ 10 ] It has long been a basic principle of criminal law that to be admissible at trial a statement given to police must be voluntary. Historically, the reasoning for this was that an involuntary confession is fundamentally unreliable. In more recent times, the consideration of voluntariness has expanded however, to include broader precepts of fairness and maintaining confidence in the administration of justice: R v Tessier , 2002 SCC 6 .

The jurisprudence has now recognized another factor in the perspective of the person making the statement. The accused must have understood it could be used against them to their detriment and make an active choice to provide the statement: Tessier at para 29 . [ 11 ] The seminal decision of R v Oickle , 2000 SCC 38 , provides a detailed discussion of the scope of the so-called confessions rule.

Four factors are identified for consideration in determining voluntariness: the mental capacity of the accused (i.e. the “operating mind” test); the existence of oppressive circumstances that could overwhelm the free will of the accused in choosing to make a statement; whether the statement was made in exchange for a promise or in response to a threat; and whether there was trickery by the police of such magnitude as to be shocking to the community.

The latter factor is a discrete inquiry, whereas the first three are to be considered in conjunction with one another. [ 12 ] Each case must be decided on its own, having regard to all of the circumstances surrounding the statement, including the characteristics of the accused, the degree to which any alleged inducements offered by the interviewer amounted to a quid pro quo for the making of a statement, and the degree to which the deprivations experienced by an in custody accused affected the making of the statement.

The provision of an opportunity to consult counsel prior to the interview, and actions taken by the interviewer when the accused invokes or attempts to invoke the right to remain silence can also affect the ultimate decision as to voluntariness. [ 13 ] The Crown bears the onus of proving beyond a reasonable doubt that an accused's statement to a person in authority was made voluntarily: Tessier at para 25 . B. The Interview [ 14 ] Before turning to the application of these principles to the facts of this case a few general observations regarding the circumstances of the interview are necessary. [ 15 ] Mr.

Martineau was arrested on the evening of June 16, 2019, approximately 24 hours after Mr. Goodswimmer went missing. He remained in custody at the Valleyview RCMP detachment for a further 24 hours before a telephone bail hearing, and then spent a second night in the cells before being interviewed on the afternoon of June 18, 2019. By that time, he had spoken to counsel on several occasions, including when he was first arrested, before an initial interview with Cst.

Dupuis on June 17, 2021 (which the Crown does not seek to have admitted in evidence), before his bail hearing and at the outset of his interview with Cst. Smit and Cst. Kondoski. On the latter two occasion he was advised that he was now being investigated on suspicion of murder, in addition to the other charges. [ 16 ] Mr. Martineau asserts that his rights under s. 10 of the Charter were infringed by virtue of the delay in being advised that he was under investigation for the murder of Mr. Goodswimmer, and that the police did not adequately implement his right to counsel

before the interview itself. Those assertions will be dealt with separately in these reasons. For now it must be observed that Mr. Martineau had discussed his situation with counsel prior to the interview, had been advised to remain silent and understood that if he did not remain silent anything he said could be used against him in evidence. [ 17 ] The interview was primarily conducted by Cst. Smits although at times in the process Cst. Kondoski would come into the interview room to provide input or attend to Mr.

Martineau’s need for a bathroom or cigarette break. [ 18 ] Both interviewers were polite and respectful. They were also very persistent and skilled at moving the interview along whenever Mr. Martineau took the position that he needed to remain silent as per his counsel’s advice—a subject to which I will soon return. [ 19 ] The interview commenced in an unremarkable fashion. Cst. Smits established rapport with Mr. Martineau by asking about his personal and family history. Mr. Martineau spoke at some length about his family and background as a member of the Sturgeon Lake Cree Nation.

At the time of the interview, he was 39 years old, and the father of six children ranging in age from 3 to 22 years. Over the years he had struggled with alcohol and drug addiction, but he had reconnected with his children and was trying to get his life back on track. [ 20 ] After approximately thirty minutes, the discussion turned to the events of June 16, 2019 and the fate of Mr. Goodswimmer. [ 21 ] Cst. Smits asked directly whether Mr. Martineau had anything to do with Mr. Goodswimmer’s disappearance.

When he did not directly respond (uttering only “agh”), she pressed him further, and for the first of many times he stated that he had been advised to stay silent because anything he says could be used against him. Her response was as follows: “... that’s great advice and I’m, I’m glad that you understand that for sure.” [ 22 ] Over the ensuing two hours or so, this theme would be repeated. Cst. Smits and on occasion Cst. Kondoski would engage with Mr. Martineau on different subjects, and would explain that they needed to gather as much information as possible as part of the investigation, and wanted Mr.

Martineau to provide his version of events. Mr. Martineau would often express a desire to help and occasionally apologize for not doing so, and wasting their time, but would then reiterate that he had to follow his lawyer’s advice. On one occasion he said that he wanted to return to his cell, to which Cst. Smits responded that that was fine, and then changed the subject by asking if it was time for a water or coffee break. Mr. Martineau asked for a smoke break, which was given. During that break the same dynamic was displayed, with Mr. Martineau telling Cst.

Kondoski that he had been advised to stay silent, followed by Cst. Kondoski confirming that the advice was sound but that this was Mr. Martineau’s opportunity to get his version of events before the investigation team. [ 23 ] In total, Mr. Martineau declined to answer questions about the disappearance of Mr. Goodswimmer on 31 occasions. [ 24 ] After approximately three hours, including breaks while remaining in the company of Cst. Kondoski, Mr. Martineau stated that he was ready to “come clean”. Before doing so, Mr. Martineau asked the interviewers three times whether they could offer him any help in return.

His entreaties went nowhere as it was made clear that nothing was being offered in return for his statement. [ 25 ] Mr. Martineau then “came clean” by telling his version of the events of June 16, 2019 to the extent that he could recall them given what he described as his extreme intoxication. Among other things he admitted that after a fight, he and Mr. Hamelin had taken Mr. Goodswimmer (who had been tied up) on an ATV, and driven into the bush. He said that at one point, he told Mr. Hamelin to get off of the ATV and then continued. When he woke up after passing out, he saw that Mr. Goodswimmer was dead.

He put the body into a watery area and then returned. C. Positions of the Parties [ 26 ] The Crown argues that there can be no reasonable doubt as to the voluntariness of Mr. Martineau’s statement to police. It notes that the Accused does not dispute that he had capacity to make a statement (i.e. an “operating mind”), and has not alleged any trickery or deception by the police.

This leaves for consideration whether there was oppressive conduct, or threats or inducements made in return for a statement being given neither of which are present, according to the Crown. [ 27 ] The Accused argues that the Crown has failed to discharge its burden of proof of voluntariness beyond a reasonable doubt . He points to a number of themes of the questioners, which when taken together raise doubt as to whether Mr. Martineau’s statement was the product of free choice. [ 28 ] According to the Accused, these themes were as follows: First the questioners repeatedly told Mr.

Martineau that if he made a statement now, the investigation team would be able to corroborate it, and it would have more credibility than if he waited. Second, the questioners told Mr. Martineau that he would have only a limited time period in which to make a statement and “get ahead” of the investigation. If he waited too long someone else’s version of events would be ahead of his, and the interviewers would not be staying in Valleyview long.

Third, the questioners told him that a statement made now would benefit him in later (unspecified) court proceedings as a “mitigating” circumstance rather than an “aggravating” circumstance. [ 29 ] Mr. Martineau contends that any one of these themes on its own could raise a reasonable doubt as to voluntariness, but when considered in the context of oppressive conditions, and taken together, I should conclude that his free will was overborne by the police interviewers.

D. Analysis [30] Oppressive conduct by police can come in many forms.

In Oickle, Justice Iacobucci provided the following example offactors that can contribute to oppressive conduct: “depriving the suspect of food, water, sleep, or medical attention; denying access tocounsel; excessively aggressive, intimidating questioning for a prolonged period of time.” This is not an exhaustive list but illustrates thecircumstances that can lead to a finding of oppression. [31] The Accused argues that police employed a number of oppressive tactics here, including not advising him until 24 hours afterarrest that he was being investigated for murder; being advised of that in a “perfunctory” manner immediately before his bail hearing;seizure of his clothes; being roused in the middle of the night following arrest for pictures, being held for 38 hours before questioning(after a poor nights sleep), and connecting him to legal counsel who police understood to be his lawyer rather than giving him a genuinechoice of counsel. [32] There can be no doubt that the circumstances surrounding Mr.

Martineau’s arrest and detention were stressful for the Accusedas well as police and the Sturgeon Lake community. A person was missing under very suspicious circumstances, a search was underwayand his fate was unknown. As the investigation progressed to a murder investigation on the afternoon following Mr. Martineau’s arrest,the RCMP major crimes unit was engaged, bringing new resources and investigators onto the scene while the search for Mr.Goodswimmer continued. [33] Mr. Martineau was placed into a cell upon arrival at the detachment.

He spent two nights in the cell before being interviewedon June 18, 2019, which was undoubtedly uncomfortable, and tiring. However, he was provided a number of opportunities to speak tocounsel; he was given replacement clothing prior to his interview so as not to have to wear that which was provided on his arrival; and hewas fed. At the outset of the interview on June 18, 2021, the interviewers confirmed that he was not hungry.

They also arranged for himto be supplied with a prescription medicine he was taking, and over the course of the interview he was provided water and coffee as wellas two cigarette breaks. [34] The questioning conducted by Cst. Smit and Cst. Kondoski was polite and respectful. They were both persistent, but notaggressive in tone or demeanor. Indeed given the urgency of the situation regarding Mr. Goodswimmer’s fate and condition, the patienceof the interviewers could be considered somewhat surprising. [35] Over the course of the interview, Mr.

Martineau often appeared to be struggling (or “freaking out”, to use his words) betweena desire to do the right thing and cooperate with police on the one hand and the advice of his counsel to keep silent on the other. Theinterviewers reinforced the former, and redirected the conversation when Mr. Martineau asserted the right not to answer questions as tohis involvement in Mr. Goodswimmer’s disappearance. [36] In my view the interviewers did not act oppressively in doing so. Persistent questioning regarding a missing person should notbe confused with oppression especially when done in an appropriate manner.

Moreover the treatment of Mr. Martineau while in custodybefore and during the interview was reasonable and humane. There was no oppression here even if physical comforts were missing. Ofmore concern is whether during the course of the interview, the questioners offered inducements to Mr. Martineau of sufficientsignificance as to raise a doubt as to the voluntariness of his decision to “come clean”, as he put it.

I turn to that next. [37] In R v Herbert, (SCC), [1990] 2 SCR 151 at para 110, the Supreme Court of Canada confirmed that policeare entitled to use legitimate means of persuasion to encourage an Accused to provide a statement. This is the case even if the Accusedinvokes her right of silence or asks for another opportunity to consult counsel. For example, in R v Singh, 2007 SCC 48, a policeinterviewer successfully persuaded the Accused to continue the interview on numerous occasions when the Accused indicated that he didnot want to talk, including many in which he asked to be returned to his cell.

The trial judge gave the examples as to how the policeinterviewer managed to continue the conversation in the face of such responses: R v Singh, 2003 BCSC 2013, paras 30-3. [38] The interview of Mr. Martineau contains many similar examples of Mr. Martineau asserting his right to silence, and beingpersuaded to continue, although the techniques used by his interviewers were somewhat different. [39] When the right to silence was invoked, it was often prefaced with statements to the effect that Mr. Martineau would like tocooperate, but had been advised against it.

On most of these occasions, the interviewers would respond by affirming that Mr. Martineauhad the right to remain silent, and that he had received good advice. [40] They would then keep the discussion going by changing the subject, taking a break, or offering reasons why Mr. Martineaushould provide his side of the story. These included appeals to his conscience and the need to set an example for his children as well asintimating that Mr. Martineau stood to benefit by getting ahead of the investigation. Such admonitions were often embedded within longand at times rambling soliloquys during which Mr.

Martineau would say little if anything. The interview would then continue. [41] In Oickle the Supreme Court made it clear that police may often offer some kind of inducement to a suspect to obtain aconfession. This can include appealing to her morality or conscience –something over which police have no control. Inducements cancome in other forms as well and do not necessarily render a confession involuntary: In

summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Fewsuspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that itis in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or in combinationwith other factors are strong enough to raise a reasonable doubt about whether the will of the subject have been overborne: para 57. [42] Justice Iacobucci went on to quote with approval the following passage from R v Rennie, (1981) 74 Crown. App. R. 207(C.

A) at 212: Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early

admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated. If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the confession will not have been obtained by anything said or done by a person in authority.

More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person.

There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession. [ 43 ] He then concluded the discussion of the inducements issue as follows: “The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise”. [ 44 ] In that context, I return to the specific inducements alleged by the Accused. [ 45 ] The first complaint is that the interviewers improperly pressured Mr.

Martineau by telling him that he would have only one opportunity to provide his side of the story, and that by delaying a statement, his version of events would have less value. The Accused argues that the conduct of the interviewers was similar to the threats made in R v JM , 2017 ONSC 7260 wherein the police were found to have essentially told the Accused that if he did not talk now, anything he said in the future including before a judge at trial would be of diminished impact and weight (at para 44).

This was found to have been improper: “the officer impressed on the accused—falsely—that silence was against his interest in successfully defending the accusations against him” ( at para 48). [ 46 ] An example of this tactic is as follows: SMITS: ... I mean there's only one shot at this right? ...To kinda get out ahead of the investigation and say, ah this is what did or didn't happen . And I don't, I don't wanna rush that. I don't, I don't wanna you know push you into a corner and say, ok times up, everything's done. Too bad. Too bad so sad (Transcript at lines 2893-2899) (emphasis added).

SMITS: . . .So that is gonna be happening at a point in time here and you're not going have that opportunity to come forward and say. to get a head of the information in the investigation . To come forward and say, no, no, no, no, no. This is what happened (Transcript at lines 3146-3150) (emphasis added). SMITS: ... I guess the point. is that this isn't an ongoing opportunity right? When we close the door on that room that's it. You know we don't, we don't come back and y-you're gonna be sitting in your cell and you're gonna be like, oh, ok, now I wanna talk. Somebody go get Mel. I'm gonna be gone.

I'm gonna have other things to do. I'm gonna be, have moved on to other tasks. You know it isn't. it isn't an ongoing opportunity but we do have to make sure that you get one. So this is your chance to decide what kind of a man you're going to be . For your son, for you, for the rest of your kids. This is the moment where you decide how they're gonna see you (Transcript at lines 3093-3102) (emphasis added). SMITS: ...We talked about the corroborative value of your information going down over time . And we talked about how this is not an ongoing opportunity... (Transcript at lines 3138-3140) (emphasis added).

SMITS: ...I'm gonna walk out of this room at one point and not come back. And then that opportunity for you is lost. Sure you can, you can say whatever you want down the road. This is gonna go through a whole court process, absolutely. You'll get disclosure. You'll kind of see all of the evidence that we have. Do you think that information's gonna be as valuable down the road though, as it will be right now? (Transcript at lines 3184-3190) (emphasis added). [ 47 ] In testimony before me Cst. Smits defended this approach.

She testified under examination in chief that she used the wrong term in saying that an early statement could be “corroborated” by the investigation team and hence was of more value. She conceded that she should have said that an early statement would be more credible and have more value than a statement given later in the investigation. In argument, the Crown submitted that it is simply a matter of fact that the investigators ability to corroborate a statement reduces over time.

Telling that to the Accused cannot be considered to be an inducement and there is no quid pro quo . [ 48 ] Similarly, the Crown argues that Cst. Smits was simply being factual with Mr. Martineau when he told her that she would not be in Valleyview indefinitely, and could not stay until his bail appearance later that week when he inquired on that. [ 49 ] In my view the interviewers tread into dangerous territory in using the “value” of an early statement as a reason for Mr. Martineau to not remain silent.

At minimum, they should have made it clear that they were not referring to the value that a Court might place on such evidence, but rather the value that the investigation team would place on it. It would then be up to the Accused to decide whether he should invite early investigation and corroboration of his version of events—something that would depend on what he had to say, as well as his legal advice. [ 50 ] The same can be said of the interviewers’ lengthy explanations to Mr.

Martineau as to why it was in his interest to “get ahead” of the investigation, to not “let others speak for him”, and to make sure that he was not assigned more than his share of the “responsibility pie”. [ 51 ] On my review of the transcript and interview video, there were times when I had difficulty understanding these dissertations and somewhat obtuse analogies. A reasonable inference can be made however that at least in part the interviewers were warning Mr. Martineau that if he intended to blame Mr. Hamelin for the disappearance of Mr. Goodswimmer, he had best do so early and before Mr.

Hamelin pointed the finger at him. [ 52 ] There was no explicit quid pro quo offered in any of these representations. However, it is clear that the interviewers intended to create the impression that Mr. Martineau’s position in defending himself against accusations being made against him, and which would be carrying on into future legal proceedings, would be better if he talked to police now, than it would be if he followed his lawyer’s advice to remain silent. In my view these themes constituted an inducement and an implicit quid pro quo .

[ 53 ] In argument before me the Crown took the position that even if the statements by the interviewers were regarded as including inducements as per the case law, they did not rise to the level of being improper. It emphasized that many statements were in fact true. For example, Cst. Smits was simply being truthful in answering Mr. Martineau’s question as to how long she would be in Valleyview when she told him that she would not be staying until his next court appearance two days later and was based in Edmonton.

Similarly the interviewers were truthful in saying that evidence provided early has more credibility than evidence given late. [ 54 ] In my view, the truthfulness of a representation made in order to induce an accused to break his/her silence is not determinative of whether an improper inducement has been offered. For example it is true that an early confession and guilty plea will generally result in a lesser sentence, but it is also clear that such an offer (explicit or implicit) will generally raise a reasonable doubt as to voluntariness, as it constitutes a powerful inducement to confess: Oickle at para 49 .

This is especially so where the accused believes, or has been told, that the police already have evidence showing his/her guilt. [ 55 ] The interviewers’ foray into the law of sentencing is an example of such an inducement. I turn to that next. [ 56 ] In the course of persuading Mr. Martineau to continue talking rather than staying silent, the following exchange took place: SMITS: And the court decides whether or not your guilty of that right? So we have the information that's gonna be used against you in court. And that's I guess what I'm trying to, to drive home. Is that we have all of that.

What we don't have is your side. Your explanation as to how this information that's trying to make you look really bad, is perceived by you. So there are things, like there are aggravating. Things called aggravating and mitigating circumstances. Have you heard those terms before? MARTINEAU: I have. SMITS: Yeah. So you know what I'm talking about right? So, we have things that are aggravating circumstances. So for example if we wanna talk about the person we typically see in this chair. Who has zero remorse, doesn't give a shit about anybody.

If he kills somebody and has zero remorse about it that's an aggravating circumstance right? MARTINEAU: (Sighing). SMITS: And for you in a situation like this what do you think? What do you think. MARTINEAU: Well. SMITS: Mitigating? SMITS: But I guess the most important thing is that, nobody wants that to be. Like nobody wants somebody to be blamed for something. In a way that it didn't happen right? ( Transcript Lines 2942 to 2985). [ 57 ] The Crown properly concedes that this portion of the interview is problematic. So too did Cst.

Smits, who testified that the use of the terms aggravating and mitigating circumstances was not something she would do again, and that what she was getting at was the dichotomy of being a bad person versus a moral person. The Crown says that any doubts as to the voluntariness of the statement given the misstep by the interviewer I were resolved when, prior to “coming clean,” Mr.

Martineau tried to make a deal with the interviewers and asked how they could help him if he talked, only to be firmly refused. [ 58 ] The Accused urges me to reject the Crown’s argument, and characterizes the exchange as a clear case of the police promising that if the Accused provides a statement as to the mitigating circumstances at play, he would improve his position in the legal proceedings to come—a powerful inducement. [ 59 ] The Accused argues that the situation here is similar to that in R v Cairney , 2009 ABQB 123 , in which a confession was found involuntary because throughout the interview it was a common theme that if the suspect provided evidence of “extenuating circumstances” the charge of murder would be reduced to manslaughter. [ 60 ] The dichotomy between aggravating and mitigating circumstances was not a common theme during this interview and in that sense the facts here are different than in Cairney .

It was however raised shortly before the crucial part of the interview in which Mr. Martineau relented and gave police his version of events. [ 61 ] As for Mr. Martineau’s last minute attempt to strike a deal with the interviewers, I agree with the Crown that this is relevant and important in evaluating the voluntariness of Mr. Martineau’s decision to provide his version of the events surrounding Mr. Goodswimmer’s death. It is not however conclusive. Among other things, it is difficult to determine whether and to what extent the “help” sought by Mr.

Martineau had any connection to the benefits of an early statement as conveyed to him earlier in the interview. It is but one piece of the evidentiary puzzle. [ 62 ] Having reviewed the interview in its entirety, the inducements suggested by the interviewers leave me with reasonable doubt as to whether the confession was voluntary or a product of Mr. Martineau’s freedom of choice being overborne. His statement to police on June 18, 2019 is therefore inadmissible as evidence in the trial. [ 63 ] As a result of this finding, it is largely unnecessary to determine whether Mr.

Martineau’s right to counsel under s.10 of the Charter were breached in and before the interview, and if so what remedy is available. However, I will do so as an abundance of caution in the event that I am wrong in respect of the voluntariness issue. III. The Charter Applications [ 64 ] The Accused applies for exclusion of evidence gathered by police as a result of breaches of his rights under ss 10 (

a) and 10

(

b) of the Charter, including his statement of June 18, 2019. To succeed in this application he must satisfy the Court on a balance ofprobabilities that one of more of his Charter rights were breached and that the appropriate remedy for that breach (or breaches) under s.24(2) of the Charter is exclusion. [65] Two basic breaches are alleged. The first is a failure by police to promptly inform the Accused when they formed thesuspicion on the afternoon of June 17, 2019 that he had murdered Mr. Goodswimmer. The second is a failure by police to properlyimplement Mr.

Martineau’s right to counsel when he was first advised of this change of legal jeopardy immediately before a late nightbail hearing on June 17, 2019 and then again at the outset of his interview with Cst. Smits and Cst. Kondoski on the next afternoon. [66] The Accused characterizes these breaches as being serious misconduct by police, having a substantial effect on his Charterrights, and on that basis seeks the remedy of exclusion of the June 18, 2019 statement at trial. [67]

Section 10 (

a) states that “everyone has the right on arrest or detention to be informed promptly of the reasons therefor.” In Rv Mann, 2004 SCC 52, the Court directed that “At a minimum, individuals who are detained for investigative purposes must therefore beadvised, in clear and simple language, of the reasons for the detention”: at para 21. [68] In R v Evans, (SCC), [1991] 1 SCR 869 at 888, Justice McLachlin explained that the rationale for the s. 10(

a) requirement has two aspects. The first is grounded in the common law entitlement of a detained person to make a reasonable decisionas to whether to submit to the detention or arrest. The second is to allow the Accused to properly exercise her right to counsel under s.10(b). [69] In this case, Mr. Martineau was arrested for kidnapping and assault with a weapon on the evening of June 16, 2019. He wasinterviewed by Cst. Dupuis in relation to those charges, starting at approximately 11:00 a.m. on June 17, 2019 (after consulting withcounsel) and was returned to his cell an hour later.

At approximately 3:00 p.m. that afternoon, local investigators formed the suspicionthat Mr. Goodswimmer had been murdered and reported that to the RCMP Major Crimes Unit in Edmonton. [70] In the circumstances, the first aspect of the right to be promptly informed of the reason for one’s arrest or detention is oflimited relevance. Mr. Martineau was already in custody on very serious charges and that was not going to change –at least pending hisbail hearing.

There was no new decision to be made by him on whether to submit to detention or arrest. [71] The second aspect of the right to be promptly informed of the reasons for arrest or detention is therefore of primarysignificance. That is, to allow the Accused to properly exercise his right to counsel under s 10 (

b) of the Charter. In that context, thetimeliness of being advised of a change in jeopardy under s. 10 (

a) is closely connected with the duties imposed on police under s. 10 (b). [72] In Evans, McLachlin J summarized the informational components of the s. 10(

b) duties of police as follows, at 890: The jurisprudence establishes that the duty on the police to inform a detained person of his or her right to counsel encompasses threesubsidiary duties: (1) the duty to inform the detainee of his right to counsel; (2) the duty to give the detainee who so wishes a reasonableopportunity to exercise the right to retain and instruct counsel without delay; and (3) the duty to refrain from eliciting evidence from thedetainee until the detainee has had a reasonable opportunity to retain and instruct counsel [citations omitted]. [73] Where the duty takes the form of a new caution after the jeopardy of the Accused has changed, the same subsidiary duties willapply provided that the change in jeopardy involves a fundamental and discrete change in the purpose of the investigation; a differentand unrelated offence; or a significantly more serious offence than that contemplated at the time of the original warning: Evans at 893. [74] The Crown does not dispute that there was a change of jeopardy when police began to suspect Mr.

Martineau of murder.However, it argues that by the time of the June 18, 2019 interview, Mr. Martineau had twice been advised of the murder investigation,and twice spoken to counsel. Accordingly there was no breach of s 10 (

a) or 10 (b). [75] The Accused argues that an eight hour delay between police forming the suspicion that a murder had been committed and Mr.Martineau being advised of that development clearly breaches the obligation on police to provide prompt and new advice as to the reasonfor his detention after that reason changed.

He also says that the delay constituted a breach of the informational duties of the police unders 10 (b). [76] In my view a determination as to whether police have been sufficiently prompt in advising an Accused of a change in jeopardymust take into account all of the circumstances surrounding the delay. [77] For example in Evans, police arrested a young man of marginal intelligence on a charge of selling marijuana but intended touse the interview opportunity to question him as to his brother’s involvement in two unrelated murders.

The young man told police onarrest that he did not understand the right to counsel caution, but the interview proceeded anyway, without legal advice. During theinterview he made inculpatory statements regarding his own involvement in the murders. Although recognizing the change in jeopardy,the interviewer continued. On appeal, the Supreme Court of Canada held that the Charter rights of the accused under s. 10 (

a) and (b)had been breached and a new trial was ordered. [78] In a case such as Evans, the need for the accused to be immediately advised of a change in jeopardy, and immediately allowedto contact counsel is clear.

There was no previous legal advice provided; the new jeopardy was vastly different than that which he wouldhave understood to be involved on a marijuana charge; and it was only by immediately stopping the interview that his rights under s. 10could be protected. [79] In a case such as this one, the temporal component of the right to be advised of a change in jeopardy situation is far less clear. [80] To begin with and as noted earlier, Mr. Martineau was already in custody on very serious charges related to Mr.Goodswimmer’s disappearance when the change in jeopardy arose on the afternoon of June 17, 2019.

The potential addition of a murdercharge was undoubtedly serious and increased the gravity of the situation, but this change of jeopardy was a matter of degree, not kind.

[ 81 ] Second, Mr. Martineau had already spoken to a lawyer twice, and been interviewed by police once in respect of the original kidnapping and assault with a weapon charge. He had previously been cautioned, and was aware of his right to remain silent. [ 82 ] Third, the investigation into Mr. Goodswimmer’s disappearance was ongoing and urgent. As long as police refrained from eliciting evidence from Mr. Martineau in the interim, it is in my view understandable that they would focus on that search and investigation and wait for the arrival of additional resources in Valleyview before re-engaging with Mr.

Martineau at the bail hearing stage later that evening. [ 83 ] I find therefore that in the circumstances of this case the delay of eight hours in informing Mr. Martineau that he was now also under suspicion of murder was sufficiently prompt to comply with s. 10 (a). [ 84 ] I also note that even if the delay did constitute a breach of s. 10(a), I would have found that the remedy for such a breach would not be exclusion of the June 18, 2019 statement from the trial.

The circumstances of that breach (if there was one) would not support a finding of misconduct by police, and the admission of such evidence is clearly in the interests of having these serious charges adjudicated on their merits. These factors would outweigh the effects of the breach on the rights of the Accused in an analysis under R v Grant , 2009 SCC 32 . [ 85 ] The Accused next argues that police failed to carry out their implementational duties in facilitating contact with legal counsel, on two separate occasions. [ 86 ] The first occasion was before Mr. Martineau’s bail hearing on the night of June 17, 2019.

During the voir dire , I heard testimony from Cst. Jason Hoeksema of the RCMP Major Crimes Unit. He testified to arriving in Valleyview just before 11:00 p.m. on June 17. On arrival he was assigned to deal with Mr. Martineau’s bail hearing. [ 87 ] Soon thereafter he went to Mr. Martineau’s cell and advised him that the bail hearing would be held, and that in addition to the assault with a weapon and kidnapping charges he was now being investigated for murder. Mr. Martineau expressed surprise at the inclusion of murder. [ 88 ] Cst. Hoeksema brought Mr. Martineau to the phone room in the detachment.

He then dialed duty counsel for him. Cst Hoeksema told duty counsel of the charges and murder investigation and then left Mr. Martineau in the room. Eight minutes later Mr. Martineau emerged and the hearing proceeded. The matter was adjourned until Thursday June 20, on consent. A No Contact Order was made prohibiting contact with the co-Accused and Mr. Goodswimmer. [ 89 ] The Accused argues that police interfered with his right to counsel by dialing duty counsel on his behalf, thereby denying him his choice of counsel. [ 90 ] The Crown says that the bringing of Mr.

Martineau before the Justice of the Peace to speak to bail was simply an exercise in fulfilling a constitutional obligation owed to the Accused and does not give rise to a separate obligation under s 10 (b). The appearance in itself had nothing to do with Mr. Martineau’s change in jeopardy, even though he was advised of that change before the hearing and before talking to duty counsel. [ 91 ] I agree with the Crown that the circumstances surrounding the brief bail hearing are largely irrelevant to the main issue in this voir dire – the admissibility of the June 18, 2019 statement .

At no point in the recorded interaction with Mr. Martineau did Cst. Hoeksema attempt to elicit evidence from him, and connecting him with duty counsel for the limited purpose of speaking to bail cannot be considered to be a material interference with the exercise of his right to counsel. There was no Charter breach in this interaction. [ 92 ] The second occasion on which interference with Mr. Martineau’s right to counsel is alleged was at the outset of the June 18, 2019 interview. The Accused argues that Cst. Smits interfered with his opportunity to choose and contact preferred counsel.

He says that rather than assisting Mr. Martineau in exercising such choice, Cst. Smits acted as a gatekeeper and selected a lawyer for him. [ 93 ] In my view, this

interpretation of events is not supported by the video evidence heard by the Court . There is no question that Cst. Smits facilitated a call with counsel before the interview commenced in substance, and that at times Mr. Martineau showed confusion as to how that lawyer’s name came up. At no time however did Cst. Smits force that lawyer onto Mr. Martineau. Nor did she interfere with Mr. Martineau’s privacy while the call took place. [ 94 ] Moreover after speaking to the lawyer in question, Mr.

Martineau confirmed that he received advice from the lawyer (an experienced criminal lawyer practicing in Grand Prairie), that he understood that advice and was satisfied with it: SMITS: All done? MARTINEAU: Yeah. SMITS: Ok, um. MARTINEAU: Ah I guess I can't make any other calls to anybody right now? SMITS: Um, like you're talking like to other people other than a lawyer? MARTINEAU: Yeah. SMITS: Yeah, no you can't do that. Now are you satisfied with that opportunity and is that your lawyer of choice? No um, somebody had recommended him. MARTINEAU: Ok. Um, he's just trying to help me get it, a lawyer for all this.

Right, so that's what she

SMITS: Well do you want MARTINEAU: That's what, basically what he told me. Like he's not ... SMITS: I don't need to know, yeah. MARTINEAU: He's gonna. SMITS: I don't need know what he told you I don't have to. Like I'm not privy to that information. Basically what I need to know is if you received legal advice and if you understood it. Um, and whether or not you wanna you know. If you're, if you're yeah basically if you understood the legal advice that you received. MARTINEAU: I did. SMITS: You did? Ok, did you need to call another lawyer for any other reason? Are you gonna? MARTINEAU: Um.

SMITS: Is there something MARTINEAU: No he. SMITS: you don't understand? MARTINEAU: He basically, he basically just told me. SMITS: Yeah I don't, I don't need to know what he told you, I just. MARTINEAU: I know, I but, but he made me understand what l, what I gotta do and. SMITS: Oh, so you understood your advice and you're satisfied with that then? MARTINEAU: Yeah. [ 95 ] Later in the interview, Mr. Martineau raised the possibility of consulting with counsel again before his upcoming bail hearing two days later. The following exchange took place, which confirms that Mr.

Martineau was satisfied with the legal advice obtained: SMITS: “But you’ve received your legal advice, right? MARTINEAU: And I'll have a lawyer. And um. SMITS: Ok but you're received your legal advice right? MARTINEAU: Yeah. SMITS: So, what is it that's gonna change I guess on Thursday for you? MARTINEAU: That's what I'm gonna have to ask him first and see what he thinks and then. Cause there's things that I wanna do, right? SMITS: Mmm-hmm. MARTINEAU: And then and I need his advice. SMITS: Ok. How, your, your. You've already spoken to a lawyer. MARTINEAU: I know that but. SMITS: And you've gotten advice.

On two different occasions. MARTINEAU: I know that. SMITS: And you're, you were satisfied with that right? MARTINEAU: Yep I know that. But it's this, this is. SMITS: Cause I guess this is starting to muddy the waters again as far as the lawyer goes right? MARTINEAU: Yeah. SMITS: So y-you know if there's somebody else that you wanna call right now. Then I will put you in a room and. MARTINEAU: No, no, no, no. That's, that's no, no, no that's I just. SMITS: Yeah.

MARTINEAU: Just need to talk to my lawyer or a lawyer on that day. SMITS: Like as far as going forward with the charges. MARTINEAU: Yeah the. SMITS: And all of that. [ 96 ] The interview itself shows that the police interviewers assisted but did not interfere with Mr. Martineau’s contact with a lawyer at the outset of the June 18, 2019 interview and that he was satisfied with the advice There was no breach of Mr. Martineau’s rights under s 10 of the Charter . In

summary, the Crown has failed to prove beyond a reasonable doubt that the June 18, 2019 statement by Mr. Martineau was voluntary. It is not admissible at trial. [ 97 ] The applications by Mr. Martineau for exclusion of his statement to police due to breach of his s. 10 Charter rights are not meritorious. There was no breach of his s. 10 rights, and the allegation of a breach of his s. 7 rights due to the circumstances and manner in which his interview was conducted is moot given my voluntariness finding. Heard on the 26 th day of April, 2021.

Dated at the City of Grande Prairie, Alberta this 7 th day of June, 2021. R.A. Neufeld J.C.Q.B.A. Appearances: Shannon Davies and Katie Toivonen for the Crown Chris D. Millsap, Q.C. for the Mr. Hamelin Michael Sparks and Stephen Brophy for the Mr. Martineau