R v Hermkens & Moran, 2021 ABQB 885

Court of Queen’s Bench of Alberta Citation: R v Hermkens & Moran, 2021 ABQB 885 Date: 20211108 Docket: 191084375Q2 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Christopher Andrew Hermkens and Mark Emile Dewitt Moran Accused _______________________________________________________ Reasons for Decision on a Voir Dire of the Honourable Mr. Justice W.N. Renke _______________________________________________________ The

Summary was read into the record. A copy of these reasons had been provided to Counsel and was filed with the Clerk. I reserved the right to make minor stylistic changes. The trial shall be by judge alone.

Summary The Crown sought a ruling on the admissibility of statements made by Mark Moran in interviews with RCMP officers on May 30 and 31, 2019. For the reasons set out below, I have determined that the statements are admissible at trial.

The Crown established that the statements made in the interviews were voluntary, beyond a reasonable doubt. I took into account the lack of inducements, the lack of external factors bearing on oppression or operating mind, Mr. Moran’s physical and medical condition, the nature of the interviews, the persistence of questioning despite invocation of the right to remain silent, and prior interactions with the police, including Mr. Moran having been shot by police about a month before the interviews. Mr. Moran failed to establish a violation of his s. 10(

b) rights. First, I found that in an earlier interview on April 28, 2019 Mr. Moran was not detained so s. 10(

b) was neither engaged nor violated. If Mr. Moran had been detained a s. 10(

b) violation would have occurred (since he was not advised of the right to counsel), but I found that the April interview had no non-trivial connection to the May interviews and the May interviews were not “obtained in a manner” that involved this assumed Charter rights violation. Second, I found that the passage of time between Mr. Moran being arrested, cautioned, and Chartered at the Saskatchewan Provincial Corrections Centre and his consultation with counsel at the Saskatoon RCMP Detachment was established by the Crown not to be unreasonable delay and Mr. Moran’s implementation rights under s. 10(

b) were not violated. Had there been a violation of Mr. Moran’s s. 10(

b) implementation rights by reason of delay, the May interviews were not “obtained in a manner” that involved this assumed violation of Charter rights. Further, were the May interviews obtained in a manner that involved this assumed Charter violation, I would not have excluded the May interview statements under s. 24(2) of the Charter . * * * * * [ 1 ] Mark Moran and Christopher Hermkens are jointly charged with first degree murder respecting the death of Raymond Dumont. [ 2 ] The Crown seeks a ruling concerning the admissibility of statements Mr.

Moran made to members of the RCMP in interviews on May 30 and 31, 2019 (the May 30/31 Interviews). The Crown contends that the statements were made voluntarily and Mr. Moran has challenged the admissibility of the statements on Charter grounds. [ 3 ] Nine RCMP members testified in the voir dire , as did Mr. Moran. [ 4 ] I will begin by providing a brief overview of the unusual multi-staged pathway of interactions between Mr. Moran and the RCMP that led to the May 30/31 Interviews, followed by a review of the voluntariness and s. 10(

b) doctrines at issue. I will then work through Mr. Moran’s interactions with the RCMP through to the May 30/31 Interviews, assessing voluntariness and s. 10(

b) concerns. [ 5 ] In the following, I will refer to transcripts of Mr. Moran’s recorded interactions with the RCMP. These transcripts were in a single tabbed voir dire exhibit, Statements of Mark Moran. I will refer to the transcripts by tab number (e.g. “t1”), and page and line numbers (e.g. 2.16-17). The May 30/31 Interviews at tab 5 of the exhibit have three transcripts, separated by “splash” pages. The earliest transcript has 86 pages, the next 77 pages, and the last 108 pages.

I have referred to these transcripts by tab number (e.g. “t5”), followed by transcript identification (e.g. “5/86”), followed by page and line numbers. Tab 8 has two transcripts, one of 18 pages, the other of 25 pages. The tab 5 convention shall be followed for tab 8. Table of Contents I. Background . 5 II. Principles . 6 A. Voluntariness . 6 1. Burden and Standard of Proof . 6 2. Features of Voluntariness Doctrine . 6 3. The Nature of Voluntariness and Involuntariness . 7 4. Examples of Involuntariness . 9 B. Right to Counsel 14 1. Burden and Standard of Proof . 15 2. Detention . 15 3. Without Delay . 18 III.

April 27 to Early May 30, 2019 . 19 A. Contact between Mr. Moran and the RCMP at Lloydminster Hospital: April 27 and 28, 2019 . 19 1. Cpl. Lee Knelsen . 19 2. Cst. Jonathan Frankton and the arrest for possession of stolen property . 21 B. April 28, 2019 Interview with Cpl. James McConnell 24

1. Cpl. McConnell’s Account 24 2. The Interview .. 25 3. Mr. Moran’s Account 27 4. Assessment 28 C. April 29, 2019 Shooting of Mr. Moran . 31 1. Cst. Kyle Dalueg . 31 2. Cst. Nicholas Harper 33 3. Mr. Moran’s Account 35 4. Assessment 36 D. April 29 and 30, 2019 . 40 1. Cpl. Eric Ponton and Cst. Jillian Hartman . 40 2. Assessment 42 E. April 30 to May 30, 2019 . 42 IV. Arrest for Murder and Interviews, May 30 and 31, 2019 . 43 A. Cst. Stephanie Gratton . 43 B. May 30, 2019 – Arrest, Consultation with Counsel 44 1. Arrest, Transportation, Telephone Conversation with Lawyer 44 2. Mr.

Moran’s Account of the Arrest and Consultation with Counsel 47 3. Assessment 47 C. Post-Arrest Interactions of Cst. Gratton and Mr. Moran . 51 1. May 30 Interactions . 51 2. May 31 Interactions . 53 3. Mr. Moran’s Account of Post-Arrest Interactions with Cst. Gratton . 57 D. May 30-31 Interviews . 58 1. First Interview Period: 5:05 p.m. to 7:06 p.m .. 58 2. Second Interview, May 30, a little after 8:40 p.m. to 10:06 p.m. 63 3. Third Interview, May 31, 8:41 a.m. to 10:48 a.m. 66 4. Mr. Moran’s Account 70 V. Assessment of the May 30/31 Interviews . 72 A. Non-Contentious Matters . 72 1. Undercover Operator 72 2.

No Right to Presence of Counsel during Custodial Interrogation . 72 3. No Requirement for Fresh Consultation with Counsel 72 B. Tainting by Prior Charter Violations . 74 1. Principles . 74 2. April 28 Interview and the May 30/31 Interviews . 75 3. May 30 Delay and the May 30/31 Interviews . 77 4. Pattern of Disregard? . 81

C. The Interviews . 81 1. Non-Contentious Features of the May 30/31 Interviews . 82 2. Inducements . 82 3. Oppression, Operating Mind, and Meaningful Choice to Talk to the Police . 84 D.

Summary . 92 I. Background [ 6 ] On April 27, 2019 in Lloydminster, Alberta, at about 7:30 p.m., Raymond Dumont was shot and killed as he sat in his parked vehicle. Chelsey Hart was in the passenger seat of the vehicle. [ 7 ] Mr. Moran was driving a black Chevrolet Avalanche. Mr. Dumont and Mr. Moran were acquainted. [ 8 ] Mr. Dumont and Mr. Moran had stopped their vehicles to talk. The vehicles were parked facing in opposite directions, so the two drivers were adjacent. [ 9 ] A third vehicle drove up, coming from behind Mr. Dumont’s vehicle. The driver got out of the vehicle carrying a long gun.

He was on the passenger side of Mr. Dumont’s vehicle. He opened fire, killing Mr. Dumont. About 10 shots were fired. Mr. Moran’s truck was damaged by the gun fire and Mr. Moran received two leg injuries from the gun fire. [ 10 ] Ms. Hart was not injured, except for a shrapnel wound. Ms. Hart was able to get out of the Dumont vehicle before it drove away from the scene, crossed a road, and struck a building about 200 metres away from the scene. Evidently, Mr. Dumont’s vehicle had been in gear and after death he depressed the gas pedal. [ 11 ] Mr. Moran drove from the scene.

He abandoned the Avalanche in a rural area. Later on April 27, he was later taken to the Lloydminster Hospital by two friends. [ 12 ] Mr. Moran became a suspect in the murder of Mr. Dumont. [ 13 ] Members of the RCMP attended at the hospital and “maintained continuity” of him. Upon medical discharge in the morning of April 28, Mr. Moran was arrested on other charges and taken to the Lloydminster RCMP Detachment. [ 14 ] Mr. Moran secured release on April 28 by about 3:30 p.m. When he was leaving, he was intercepted by Cpl.

James McConnell, who asked him whether he would answer some questions about the shooting of Mr. Dumont. Mr. Moran and Cpl. McConnell went into an interview room in the public area of the Detachment and Mr. Moran was briefly interviewed before Mr. Moran left of his own accord. [ 15 ] In the afternoon of April 29, Mr. Moran was located in a truck that had been reported stolen. Mr. Moran did not stop for police. A chase ensued. When the stolen truck broke down, Mr. Moran fled on foot. He was in visible possession of a handgun. Mr. Moran was shot by an RCMP member. The wound was serious. Mr.

Moran was arrested. [ 16 ] Mr. Moran was transported to the Lloydminster Hospital, then by STARS air ambulance to the Royal University Hospital in Saskatoon. Following surgery, in the morning of April 30, Mr. Moran was arrested for offences connected with the April 29 incident. Later on April 30, Saskatchewan Provincial Corrections took custody of Mr. Moran. He was transferred to the Saskatchewan Provincial Correctional Centre (SPCC) where he remained in medical care. [ 17 ] On May 30, Mr. Moran was medically cleared for release. Mr. Moran was arrested by Cst.

Stephanie Gratton at the SPCC and taken to the Saskatoon RCMP Detachment. At the Detachment, Mr. Moran consulted with counsel by telephone and in-person. [ 18 ] Thereafter the May 30/31 Interviews occurred. Mr. Moran was interviewed by Sgt. Christian Reister in the afternoon of May 30 for about two hours. That evening, Mr. Moran was interviewed by Sgt. Reister and Cpl. McConnell, again for about 2 hours. Mr. Moran was interviewed by Sgt. Reister and Cpl. McConnell in the morning of May 31, for slightly under 2 hours. [ 19 ] At the material times, Mr. Moran was 33 years old.

His criminal record was not in evidence in the voir dire. He admitted to a history of property offences but no violence offences. Mr. Moran is not a member of a minority group. II. Principles [ 20 ] Both voluntariness and compliance with s. 10(

b) are in issue respecting the May 30/31 Interviews. I’ll review some voluntariness and s. 10(

b) principles in this section. In the sections that follow, I’ll apply the principles to the interactions between Mr. Moran and members of the RCMP. A. Voluntariness 1. Burden and Standard of Proof

[21] The Crown bears the burden of proving, beyond a reasonable doubt, that an individual’s statement to a “person in authority”was made voluntarily and an accused bears no burden, evidentiary or otherwise, of providing a foundation for the voluntariness inquiry:R v Tessier, 2020 ABCA 289, leave to appeal to the SCC granted (SCC), at para 25. See also R v Alas, 2016 ONSC5709, Trotter J, as he then was, at para 31; R v Lavallee, 2018 ABCA 328 at para 25; R v Fernandes, 2016 ONCA 772, Hourigan JA atpara 22; R v Hodgson, (SCC), [1998] 2 SCR 449, Cory J at para 12. 2. Features of Voluntariness Doctrine [22] Some features of the voluntariness doctrine include the following: (

a) A “person in authority” is, generally, a person that an individual reasonably believes is formally engaged in “the arrest, detention,examination or prosecution of the accused:” Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 5th ed. (Bryant, Lederman,Fuerst edd) at §8.15, Justice D.M. Paciocco and Dean Lee Stuesser, The Law of Evidence, 7th ed at 347. Police officers are the paradigmcase of persons in authority: Hodgson paras 16, 32. (

b) The doctrine applies to both inculpatory and exculpatory statements. Sopinka, Lederman & Bryant at §§8.12, 8.5; Paciocco andStuesser at 346. (

c) The doctrine applies whether the Crown seeks to introduce the statement as part of its case or the Crown will limit the use of thestatement to cross-examination of an accused. (

d) The doctrine is an admissibility rule only. If admitted, a voluntary statement may or may not be considered reliable by the trier of factand the weight of the statement is for the trier of fact to determine, given all of the trial evidence: Fernandes at paras 39-41; Hodgson atpara 20. Since the only “persons in authority” who interacted with Mr. Moran were police officers, in the following, for the most part, I’ll use theterm “police” as shorthand for “persons in authority.” 3.

The Nature of Voluntariness and Involuntariness [23] The foundation for voluntariness doctrine is the individual’s right to be left alone by the State. Absent a constitutionally-validlaw to the contrary, an individual is not obligated to provide information to the State: R v Singh, 2007 SCC 48 at paras 27, 31; Tessier atpara 24. [24] The public good, though, requires that criminal activity be investigated and that evidence be gathered by the police. Justicedepends on getting the facts right.

A “person of interest,” suspect, or individual formally charged with an offence may be a good sourceof information about an alleged crime: Singh at paras 28, 45. While individuals are not (generally) required to volunteer information tothe police, the police are entitled and obligated to ask individuals questions. [25] Individuals do not have the right not to be spoken to by the police: Singh at para 28.

Individuals do have the choice to provideinformation to the police or not. [26] Voluntariness doctrine is part of the framework regulating the interaction of information-seeking police officers andindividuals not obligated to respond. The doctrine serves the goal of protecting the choice of individuals to cooperate with the police ornot and the goal of supporting the investigation of crime: R v Oickle, 2000 SCC 38 , [2000] 2 SCR 3 at para 33; Singh at para45. [27] Voluntariness doctrine strives to ensure that statements made by individuals to the police are the product of choice, of anexercise of free will.

And more than that, that the statements are the product of real choice or “meaningful” choice. “Choice” means theability to decide between alternatives, providing information or not: Oickle at para 25.

And further, the doctrine precludes improperinfluences on choice such as unfair police conduct or police conduct that would shock the conscience of the community or bring theadministration of justice into disrepute: Singh at paras 34-35; Tessier at paras 24, 46; Lavallee at para 25; Fernandes at para 24. [28] Voluntariness doctrine is informed by a “complex of values,” including respect for individual free will and the right to remainsilent; the need for reliable as opposed to unreliable information, going to the basic principle that the innocent should not be convicted(Singh at para 29; Oickle at paras 32-46); the need to maintain trial fairness; ensuring that the police comply with the law; and the needto maintain the repute of the administration of justice: Singh at paras 21, 30; Oickle at para 70. [29] The common law identified types of circumstances denying individuals meaningful choice to speak to the authorities.

Theseare • lack of an operating mind • fear of prejudice • hope of advantage • oppression • “police trickery” that would shock the conscience of ordinary Canadians. A lack of understanding of the right to remain silent may also contribute to a lack of voluntariness: Tessier at paras 37, 54, 56, 60; see Rv Love, 2020 ABQB 689, Wilson J at paras 41-60.

[30] Given the contextual, case-specific nature of the voluntariness inquiry, this is a non-exhaustive list of factors vitiatingvoluntariness. [31] In addition, because of the case-specific and nuanced nature of the voluntariness inquiry, and because factors relevant tovoluntariness may not be evident in a transcript or testimonial recounting alone, it is preferable that interviews be audio-visual recorded:Oickle at para 46. [32] The types of relevant circumstances must not be considered as discrete inquiries: Tessier at para 48.

Rather, the assessmentsof these avenues of inquiry should be drawn together cumulatively to determine whether an individual’s statement to the police was theproduct of meaningful choice. Put another way, voluntariness must be assessed based on all the circumstances. The voluntariness inquiryis contextual.

According to Justice Iacobucci in Oickle at para 71, “the analysis under the confessions rule must be a contextual one ….[A] court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to theconfession’s voluntariness ….” See Lavallee at para 26; Tessier at para 31, 48. Different causal factors may interact. For example,“oppressive conditions and inducements can operate together to exclude confessions:” Oickle at para 68. [33] Voluntariness is determined objectively, from the perspective of a reasonable observer.

However, since voluntariness isassessed in all the circumstances, some circumstances specific to the individual may be relevant to the objective inquiry (i.e., it would bereasonable for the reasonable person to take those circumstances into account): Singh at para 36; Oickle at para 42; R v Spencer, 2007SCC 11, Deschamps J at para 13; Tessier at paras 35, 36. [34] Taking circumstances specific to the individual into account does not transform the voluntariness assessment into a subjectiveassessment: Tessier at para 35. 4. Examples of Involuntariness [35] Some elaboration of involuntariness factors follows. (

a) Operating Mind [36] For a statement to be voluntary, it must be made by someone with an operating mind. An individual has an operating mind ifthe person (

a) understands what he or she is saying, and (

b) understands what is said to him or her, including a caution that what the person says may be used in criminal proceedings against himor her.

See Oickle at paras 26-27, 63; R v Whittle, (SCC), [1994] 2 SCR 914, Sopinka J at 938-939. [37] In its primary sense, “operating mind” refers to a minimum, threshold level of cognitive competence, a limited degree ofcognitive ability, a capacity to make an active choice and not necessarily the best choice: Whittle at 938-939; Tessier at paras 29, 51; R cOtis, 2000 CarswellQue 3702, leave app refd [2001] 1 SCR xvii, at para 33. [38] The lack of operating mind may be inherent to the individual. It may have been caused by an independent event, such as atraffic accident.

It may have been caused by police conduct, as when questioning induced a state of hypnosis or an emotional breakdown.See Oickle at para 27; Horvath v The Queen, (SCC), [1979] 2 SCR 376 at 423, Beetz J. [39] An operating mind is a necessary but not sufficient condition for voluntariness: Tessier at para 54. (

b) The Caution and Informed Consent [40] I understand that Court of Appeal to have confirmed that for an individual to choose meaningfully whether or not to talk to thepolice, the individual must realize that he or she has such a choice and the individual must understand the consequences of speaking tothe police: Tessier at paras 37, 54, 56, 60. Hence, the presence or absence of a caution that an individual is not obligated to speak to thepolice and that anything said may be used as evidence is a factor in determining voluntariness: Singh at para 31.

The caution informs theindividual of his or her right to remain silent. Neither the presence nor the absence of a caution is decisive. All the surroundingcircumstances must be investigated: R v Boudreau, (SCC), [1949] SCR 262, Kerwin J at 267. [41] Some complications respecting an interviewee’s knowledge of rights and consequences may have arisen as a result of Tessier:see Love at paras 41-60; R v Beaver, 2020 ABCA 203, paras 28-31.

These complications do not arise in the circumstances of Mr.Moran’s interviews so I will not pursue this issue. [42] I’ll return to another aspect of the right to remain silent below. (

c) Inducements: Fear of Prejudice, Hope of Advantage [43] “Inducements” encompass threats of harm or promises of benefit. In traditional language, an involuntary statement may beinduced by fear of prejudice or hope of advantage. According to Justice Iacobucci in Oickle at para 57, “[t]he most importantconsideration 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 apromise.” See also Fernandes at para 27.

An inducement is improper only if, in all the circumstances, by itself or with other factors, theinducement, the quid pro quo, was sufficient to overbear the will of the individual: Oickle at para 57; Lavallee at para 27; R v Lewis,2019 ABCA 311 at para 15; Fernandes at para 26; Spencer at para 15. Inducements may produce “coerced-compliant” or “coerced-

persuaded” confessions and risk eliciting false confessions: Oickle at paras 39, 44. [44] However, the mere communication of an inducement to the accused and the mere existence of a quid pro quo will notnecessarily entail that a statement that follows is involuntary: Spencer at para 14. The mere fact that (e.g.) a police officer convinced anindividual to confess or gave the individual reasons to confess does not mean that the statement was made involuntarily.

The inducementmust have caused the accused to make the statement: Fernandes at para 29. [45] A statement is not involuntary if made in pursuit of hope that was self-generated: R v Rennie (1981), 74 Cr App R 207 (CA)at 212, quoted in Oickle at para 57. (

d) Oppressive Circumstances [46] A statement may be involuntary, even if no inducements were made, if the circumstances imposed on an accused weresufficiently onerous to have deprived him or her of the ability to make an independent decision to talk to the police. The individual talkedto escape the oppressive circumstances. See Fernandes at para 33; Oickle at paras 27, 60; Tessier at para 28.

In Oickle’s terms, aconfession in these circumstances would be “stress-compliant” and again there would be a risk of false confession: Oickle at paras 38,58. [47] R v Hoilett (1999), (ON CA), 136 CCC (3d) 449 provides the touchstone for circumstances of oppression.In that case, the accused • was arrested while under influence of crack cocaine • was left naked in cold cell • had only a metal bunk in his cell that was too cold to sit on • an hour and a half after arrest was given light clothes, no underwear, and ill-fitting shoes • was awakened at 3:00 a.m. for interviewing • nodded off to sleep at least five times during the interview • requested warmer clothes and a tissue to wipe nose, and both requests were refused.

These were circumstances of oppression vitiating a confession. [48] In Oickle at paras 60 and 72, Justice Iacobucci identified some oppression factors: • depriving a suspect of food, clothing, water, sleep, rest, or medical attention • denying requests to use the washroom • denying access to counsel or failing to advise of all rights • fabricating evidence • excessively aggressive, intimidating questioning for a prolonged period of time. [49] Again, the issue is whether the will of the individual was overborne: Alas at para 43.

Mere discomfort, privation, or pressurewill not necessarily, by themselves, raise a doubt as to voluntariness. [50] For oppression to be relevant to the voluntariness assessment, the cause of the oppression must be State conduct. Again, solong as an individual had an operating mind, if the individual irrationally or without grounds believed that circumstances were oppressiveand made a statement to police based on perceived oppression, the individual’s statement will be voluntary.

Involuntariness does not turnon “self-generated” beliefs or “inner compulsion:” Alas at para 41; Fernandes at para 36, 37; Whittle at 946. [51] Whether or not oppression occurred depends on all of the circumstances, on context. Justice Proulx wrote in Otis at para 54that [54] .... The analysis of the dynamics existing between the investigator and the subject must always be reviewed on a case-by-casebasis. What is abusive in the present matter might not be with respect to another individual. The power of resistance to police persuasionwill vary according to circumstances and individuals .... (

e) Use of False Evidence: Gaslighting [52] A type of vitiating conduct that may be regarded as a subset of oppression is the use of false evidence by the police. The useof false evidence may cause an individual to doubt his or her own memory. Justice Iacobucci wrote as follows in Oickle at para 40: 40 A third kind of false confession is the non-coerced-persuaded confession. In this scenario, police tactics cause the innocentperson to “become confused, doubt his memory, be temporarily persuaded of his guilt and confess to a crime he did not commit”: Ofshe& Leo (1997), supra, at p. 215.

For an example, see Reilly v. State, 355 A.2d 324 (Conn. Super. Ct. 1976); Ofshe & Leo (1997), supra, atpp. 231-34. The use of fabricated evidence can also help convince an innocent suspect of his or her own guilt.

The result would be a false confession: Oickle at para 61. [53] The use of false evidence is a particular concern respecting compliant or suggestable individuals: Oickle at para 42. [54] A connected risk of false confessions would arise from aggressive, intimidating, and repetitious questioning over a long periodof time. Again, especially the compliant or suggestable individual might come to believe the assertions made against him or her. (

f) Police Trickery [55] The vitiating factor of police trickery does not primarily concern reliability but the fairness of the criminal trial process andthe need to preserve the repute of the administration of criminal justice: Oickle at para 65, 69. There may be situations in which policetrickery, though neither violating the right to silence nor undermining voluntariness per se, is so appalling that it would shock thecommunity: Oickle at para 67; Tessier at para 30.

In such a case, a statement that is the product of this conduct is involuntary andinadmissible. [56] The interrogation tactics of being polite, non-aggressive, and empathetic do not amount to such police trickery, even if theindividual’s claim is that the police thereby gained his or her trust and abused that trust by extracting information. Justice Iacobucciwrote as follows in Oickle at para 85: 85 The Court of Appeal suggests at para. 129 that the police in general, and Corporal Deveau in particular, improperly abused therespondent’s trust to obtain a confession. With respect, I cannot agree.

In essence, the court criticizes the police for questioning therespondent in such a gentle, reassuring manner that they gained his trust. This does not render a confession inadmissible. To holdotherwise would send the perverse message to police that they should engage in adversarial, aggressive questioning to ensure they nevergain the suspect’s trust, lest an ensuing confession be excluded. (

g) Degrading the Right to Remain Silent [57] Another basis for a finding of involuntariness could arise from adversarial, aggressive, prolonged questioning, in the face ofthe invocation of the right to remain silent. [58] An individual may have been duly advised of Charter rights and cautioned and have exercised the right to consult counsel. InCanada, the police are entitled to question the individual in the absence of counsel: Singh at para 53.

In Canada, the police are entitled tocontinue to question the individual even though the individual has asserted the right to remain silent, whether in formal language or byotherwise indicating that he or she does not want to answer police questions. [59] Multiple invocations of the right to remain silent, in the face of persistent questioning, do not, by themselves, support afinding of involuntariness: Singh at para 53. [60] The critical question is whether persistent, continued questioning had the effect of denying the individual a meaningful choicewhether to provide information to the police, or of denying the exercise of “free will” in talking to the police.

In Singh, Justice Charronwrote at para 46, quoting R v Hebert, (SCC), [1990] 2 SCR 151, McLachlin J, as she then was, at 184, that “[p]olicepersuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence”[emphasis added by Charron J]. At para 43, Justice Charron favourably quoted Justice Hackett in R v CG, [2004] OJ No. 229 (CJ), atpara 93: ....

The exercise of the right to silence is within the control of an accused who has an operating mind and is fully informed of his or herrights, provided the conduct of the authorities do not take away his or her ability to choose .... The “holding off” requirement in the caseof the right to counsel is therefore not necessary in the case of the right to silence because the law recognizes an accused’s free will andthe ability of an accused to change his or her mind about whether or not to speak to the police.

This change of mind can occur either as aresult of personal reasons, or police persuasion that does not violate principles of fundamental justice or deprive the accused of choice.[emphasis added] Justice Charron added at para 47 of Singh that 47 …. the law as it stands does not permit the police to ignore the detainee’s freedom to choose whether to speak or not, as contended.

Under both common law and Charter rules, police persistence in continuing the interview, despite repeated assertions by the detaineethat he wishes to remain silent, may well raise a strong argument that any subsequently obtained statement was not the product of a freewill to speak to the authorities .... [emphasis added] And at para 53, Justice Charron wrote that 53 ….

In some circumstances, the evidence will support a finding that continued questioning by the police in the face of the accused’srepeated assertions of the right to silence denied the accused a meaningful choice whether to speak or to remain silent: see Otis. Thenumber of times the accused asserts his or her right to silence is part of the assessment of all of the circumstances, but is not in itselfdeterminative.

The ultimate question is whether the accused exercised free will by choosing to make a statement: Otis, at paras. 50 and54. [emphasis added] [61] Justice Charron approved of the trial judge’s approach to this issue, quoting the trial judge at para 50: 50 .... the trial judge continued as follows: It appears to me that in the case where an interviewer approaches his or her task with a view to the effect that “I will use the stratagem ofinsisting on presenting the police case to the suspect to encourage the suspect to talk, no matter what the suspect says”, that interviewer

runs the risk of having his or her conduct construed by the reviewing court as depriving the suspect of the right to make a meaningful choice whether to speak to the authorities or not . But, as Mr. McMurray says quite correctly, it is all a matter of degree. Was Mr.

Singh’s right to choose to talk or to remain silent undermined or overborne by Sergeant Attew’s admitted dedication to his agenda? [para. 35] [emphasis added] [ 62 ] The issue is whether the police conduct demonstrated to the individual that he or she must talk and will eventually talk, regardless of the desire not to talk. [ 63 ] Denigration of the invocation of the right to remain silent (e.g. an interrogator telling the individual not to keep invoking the right; the interrogator would prefer that he just didn’t answer) could also suggest to the individual that the right to silence was not taken seriously by the police and so could undermine the meaningfulness of the choice not to talk to the police: R v Quigley , 2016 BCSC 191 , Beames J at paras 79, 86, 98.

B. Right to Counsel [ 64 ]

Section 10(

b) of the Charter provides that 10. Everyone has the right on arrest or detention … (

b) to retain and instruct counsel without delay and to be informed of that right …. [ 65 ] Upon arrest or detention, an individual is put in a position of disadvantage or vulnerability relative to the State: R v Suter , 2018 SCC 34 , Gascon J, dissenting in part, at para 175. [ 66 ] The individual, then, requires assistance, some aid in rebalancing the imbalance of power between the individual and the State. That rebalancing comes through consultation with counsel.

Counsel are to provide assistance by ensuring that the individual is aware of his or her rights and to provide advice on how to exercise those rights: R v Taylor , 2014 SCC 50 , Abella J at para 21; R v Sinclair , 2010 SCC 35 , McLachlin CJC and Charron J at para 26. [ 67 ] The individual requires assistance respecting whether to cooperate with the authorities or not, and in particular, whether to provide information to the authorities or not: Suter at para 175 .

Counsel can assist in ensuring that an individual can make a free and informed choice whether or not to speak to the authorities: Sinclair at paras 24-25 ; Hebert at 176-77. [ 68 ]

Section 10(

b) rights have two main components ( Sinclair at para 27 ; Taylor at para 23 ): • First, an informational component: The authorities have the obligation to advise the individual of his or her rights to retain and instruct counsel without delay. • Second, an implementation component, if the individual invokes his or her right to consult counsel: The authorities have the obligation to provide the individual with a reasonable opportunity to access counsel without delay (except in urgent or dangerous circumstances).

The authorities also have a corresponding duty to “hold-off” on questioning the individual until after he or she has had an opportunity to consult counsel. [ 69 ] An individual may waive his or her right to counsel: Sinclair at para 28 . [ 70 ] “Detention” as a trigger for the informational component of s. 10(

b) and the scope of “without delay” in the implementation component of s. 10(

b) are at issue in this case. 1. Burden and Standard of Proof [ 71 ] The burden of proving a violation of Charter rights is borne by the accused, although the burden on some sub-issues may shift to the Crown. The standard of proof is the balance of probabilities. 2. Detention [ 72 ]

Section 10(

b) is triggered by “arrest” or “detention.” “Arrest” is not at issue in this litigation. “Detention” is.

An accused has the burden of proving detention: R v LaFrance , 2021 ABCA 51 at para 24 . [ 73 ] The background of principle for the nature of “detention” is similar to the background of principle for voluntariness. [ 74 ] What lies behind the notion of “detention” is, on the one hand, the basic right of individuals to be left alone by the State, the right not to cooperate with the authorities, the right to choose whether or not to cooperate with the authorities: R v Mann , 2004 SCC 52 at para 15 ; R v Grant , 2009 SCC 32 at paras 21 , 27, 30, 36, 37, 43. [ 75 ] On the other hand, the police have a duty to investigate and attempt to solve crimes, and one means of investigation is to question individuals, even if there are no reasonable grounds to believe that individuals questioned have committed an offence. [ 76 ] The problem, then, concerns identifying the point or the circumstances when State conduct requires that an individual receive the protections of ss. 10(

a) and (

b) before any further communicative interaction with the State authorities: Grant at para 22 28. Mere contact with the police, delay caused by the police, or mere questioning by the police is insufficient: R v Le , 2019 SCC 34 , Brown and Martin JJ at para 27; Grant at para 26 ; Mann at para 19 ; Tessier at para 64 ; LaFrance at para 23 . Detention requires a “significant” limitation of liberty, such that the individual would not reasonably believe that he or she has a choice to walk away, not to cooperate with the authorities, not to respond to questioning: Grant at paras 20, 22, 39 . Detention “removes choice:” Grant at para 21 ; LaFrance at para

Detention entails that the individual is in the “effective control” of the State: Grant at para 22. [77] The test is objective, but turns on all the circumstances, including the individual’s personal circumstances, in so far as thosecircumstances would reasonably be taken into account in deciding whether the individual would believe that he or she had a choice not tocontinue the interaction with the police: Le at paras 27, 114, 115-116; Tessier at paras 63, 69; R v Moran, (ON CA),1987 CarswellOnt 1116, 36 C.C.C. (3d) 225 (ONCA), Martin JA at para 82 (cited to CarswellOnt); LaFrance at para 35 (a trial judgemust conduct the analysis “from the perspective of a person in the accused’s situation”).

Because the test is objective, the individual’ssubjective perceptions – whether of detention or non-detention – do not govern: Le at para 114; Moran at para 82.

It follows that even ifa judge does not believe an accused’s voir dire testimony, the judge must go on to determine whether the other evidence in the voir diredoes or does not establish detention, that is, whether the only reasonable inference based on the evidence the judge does accept is that theindividual was detained: LaFrance at para 27. [78] The circumstances of the encounter with the police must be considered as a whole and not by way of a “frame-by-frame”dissection of the encounter: Le at para 27; Grant at para 31. [79] Detention may be the result of physical action by the police.

Detention may be a physical limitation of choice, as when anindividual is physically restrained. [80] Detention may be “psychological,” when an individual is not physically restrained. “Psychological” detention may beimposed by a legal obligation to comply with a direction or demand by the police: Le at para 25; Grant at para 30; LaFrance at para 25.Alternatively, absent a legal obligation to comply with a direction or demand, psychological detention may be found if a reasonableperson in the individual’s circumstances would conclude that he or she was not free to walk away, that he or she had no choice but tocomply: Le at paras 25, 26; Grant at para 30; LaFrance at para 25. [81] A detention may not arise immediately on contact with the police.

What begins without detention may evolve to detention: Rv Suberu, 2009 SCC 33, McLachlin CJC and Charron J at para 5. [82] The Supreme Court has identified three non-exhaustive sets of factors to be taken into account in assessing whether, in theabsence of a legal obligation to cooperate, the psychological detention of an individual has been established (Grant at para 44; Le at para31; Tessier at para 65; LaFrance at para 26): (

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 focused 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. [emphasis added in Le] [83] “Circumstances giving rise to the encounter” also include the events that brought the police and the individual to theirinteraction: Le at para 39.

These circumstances would include whether the police requested an individual to come to the police station,whether the individual was given a choice for the interview to be done at the police station, or whether the individual preferred that theinterview take place at the police station: Moran at paras 76, 82.

Also relevant would be whether the accused was escorted to the policestation by an officer or came himself or herself, in response to a request: Moran at para 82; LaFrance at para 38. [84] In Grant at para 41, the Supreme Court clarified that “[f]ocused suspicion, in and of itself, does not turn the encounter in adetention.

What matters is how the police, based on that suspicion, interacted with the subject.” Justice Martin in Moran at para 82 maybe understood to have adopted a similar perspective, by identifying as factors whether the police had already decided that the accusedhad perpetrated an offence “and the questioning was conduct for the purpose of obtaining incriminating statements from the accused,”and “[t]he nature of the questions … or whether the accused was confronted with evidence pointing to his or her guilt.” [85] “Language used,” an aspect of the “nature of the police conduct,” would include whether the police questioning was “pointedand precise” and the manner of questioning, such as whether the questioning was “loud,” and whether “curt commands” and “clearorders” were given: Le at paras 40, 45, 47.

In Grant at paras 32 and 39, the Court stated that the police may expressly clarify whether thecircumstances are not coercive: [32] .... In those situations where the police may be uncertain whether their conduct is having a coercive effect on the individual, it isopen to them to inform the subject in unambiguous terms that he or she is under no obligation to answer questions and is free to go …. [39] ….

The notion of psychological detention recognizes the reality that police tactics, even in the absence of exercising actualphysical restraint, may be coercive enough to effectively remove the individual’s choice to walk away from the police. This creates therisk that the person may reasonably feel compelled to incriminate himself or herself. Where that is the case, the police are no longerentitled simply to expect cooperation from an individual.

Unless, as stated earlier, the police inform the person that he or she is under noobligation to answer questions and is free to go, a detention may well crystallize and, when it does, the police must provide the subjectwith his or her s. 10(

b) rights …. [emphasis added] In Moran at para 82, “Whether the accused left at the conclusion of the interview” was identified as a factor. This could be regarded asafter-the-fact evidence relating to the effectiveness of (e.g.) any advice to the individual that he or she was free to leave the interview. [86] While the interaction may have involved no “physical contact,” physical proximity of officers to an individual may berelevant. Positioning by officers to block the exit from the encounter-area may also be relevant: Le at para 50. Visible tactical scene-securing conduct could contribute to the over-all coercive nature of the encounter: Le at para 56.

[87] Whether the location of the interaction was public or private may be a relevant factor.

An intrusion into private space, whereindividuals have a heightened expectation of privacy, could contribute to coercive characterization of the encounter: Le at paras 51, 61. [88] As for the “minority status” aspect of the “circumstances of the individual,” the majority wrote in Le at para 73 that “courtsmust appreciate that individuals in some communities may have different experiences and relationships with police than others and suchmay impact upon their reasonable perceptions of whether and when they are being detained” (see also paras 82-83, 98). [89] Respecting “level of sophistication,” the Le majority wrote at paras 108 and 109 that [108] ….

We see no good reason for the conclusion that more frequent encounters with the police make it less likely that a person feels“detained” when police approach. Such reasoning is flawed and is premised on a non-sequitur: that familiarity with police encountersbreeds familiarity with the scope of police entitlement to detain and with one’s Charter right to be free from arbitrary detention …. [109] Merely because an individual has had repeated interactions with the police does not mean that the individual has acquired a levelof sophistication in dealing with the police …. 3. Without Delay [90]

Section 10(

b) provides that “[e]veryone has the right on arrest or detention … to retain and instruct counsel without delay andto be informed of that right.” A person who is “detained” within the meaning of s. 10 of the Charter is in immediate need of legal adviceto protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty: R v Bartle, (SCC), [1994] 3 SCR 173, Lamer CJC at 191. According to Chief Justice McLachlin and Justice Charron in Suberu at paras 2, 41, and42, “without delay” must be interpreted as “immediately:” [2] …. The concerns regarding compelled self-incrimination and the interference with liberty that s. 10(

b) seeks to address arepresent as soon as a detention is effected. Therefore, from the moment an individual is detained, s. 10(

b) is engaged and, as the words ofthe provision dictate, the police have the obligation to inform the detainee of his or her right to counsel “without delay”.

The immediacyof this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law andjustified under s. 1 of the Charter. [41] …. to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state,and in order to assist them in regaining their liberty, it is only logical that the phrase “without delay” must be interpreted as“immediately” …. [42] …. In our view, the words “without delay” mean “immediately” for the purposes of s. 10(b).

Subject to concerns for officer orpublic safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detaineeof his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. [91] Subsequent jurisprudence has elaborated on the “immediacy”

interpretation. [92] Immediate performance of the facilitating access to counsel may be suspended in urgent or dangerous circumstances, whetherthe public or police are exposed to the danger: R v Tran, 2019 ABQB 284, Topolniski J at para 69, affd 2021 ABCA 58; R v Tieu, 2016ABQB 344, Tilleman J at para 63. [93] More importantly for present purposes, a distinction must be drawn between the duty to facilitate access to counsel and thetime reasonably required for the detainee actually to access counsel.

The practical problem is that individuals are not always detained at alocation where private consultation with counsel is feasible: R v Nelson, 2010 ABCA 349 at para 17. While the duty to provide access tocounsel arises immediately and that duty must be executed immediately, that does not mean that access to counsel can in fact be providedimmediately. Immediate execution of the duty to provide access may result in access actually being provided sometime later.

As theCourt of Appeal noted in Nelson at para 17, “[i]mmediacy does not mean instantaneous; practical considerations still play a role,particularly with respect to the police’s obligation to implement an arrested person’s contact with counsel.” The police are not required toprovide instantaneous contact with counsel, but contact at the earliest reasonable opportunity. That is precisely the message of Taylor atpara 24: “the duty to facilitate access to a lawyer … arises immediately upon the detainee's request to speak to counsel.

The arrestingofficer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably availableopportunity” See also Taylor at paras 28, 32 (earliest “practical” opportunity) and R v Willier, 2010 SCC 37, McLachlin CJC andCharron J at para 33. [94] The Crown bears the burden of establishing that a delay was reasonable in the circumstances: Taylor at para 24; R v Luong,2000 ABCA 301 at para 12. [95] Thus, in Nelson, the practical exigencies of getting an accused from the Edmonton International Airport to EPS Headquartersand an appropriate site to consult counsel were found to support justifiable delay (“transporting him to headquarters was a necessary stepand no information was elicited from him during this trip”): at para 19.

Justice Kiss also recognized the need to deduct from delay theduration of reasonable practicalities for getting an accused from an arrest site to a police station in R v Yong, 2020 ABQB 676 at para 64. [96] With this discussion of principles in hand, I now turn to the interactions between Mr. Moran and the RCMP. III. April 27 to Early May 30, 2019 A. Contact between Mr. Moran and the RCMP at Lloydminster Hospital: April 27and 28, 2019

[ 97 ] After Mr. Dumont was shot, Mr. Moran drove off and abandoned the Avalanche. Later on April 27, he was taken by two friends to the Lloydminster Hospital, where he was admitted for treatment of leg injuries caused by the shooting. [ 98 ] The precise nature of these injuries was not in evidence. No medical documentation was tendered. Mr. Moran did have two injuries caused by the shooting. The injuries were to Mr. Moran’s left leg. At one point he testified that the injuries were to his calf; later he testified that the injuries were to his thigh. The location of the injuries was immaterial. 1. Cpl. Lee Knelsen (

a) Interactions [ 99 ] On April 27, 2019, Cpl. Lee Knelsen (now Sgt.) was the watch commander in Lloydminster when the call came in respecting the shooting of Mr. Dumont. He sent some officers to investigate and he attended at the scene. Ms. Hart told him that Mr. Moran was involved. He did not know the scope or nature of Mr. Moran’s involvement. [ 100 ] At about 10:40 p.m., Cpl. Knelsen received a call advising that Mr. Moran was at the Lloydminster Hospital with a suspected gunshot wound. Cpl. Knelsen arrived at the hospital at around 10:45 p.m. [ 101 ] Mr.

Moran was a “person of interest” at this time. [ 102 ] Mr. Moran was in the Emergency Department. [ 103 ] Cpl. Knelsen saw Mr. Moran in a hospital bed in an emergency or trauma room. Mr. Moran’s leg was bandaged. Mr. Moran was lying still. [ 104 ] Cpl. Knelsen had Mr. Moran’s clothing seized and asked a nurse to check for Mr. Moran’s cellphone. Other officers seized the clothing. No cellphone was located at the hospital. The attending physician told Cpl. Knelsen that he didn’t see any bullets, only metal fragments. These were not seized. (No issue was raised respecting the clothing seizure.) [ 105 ] Cpl.

Knelsen went with hospital staff and Mr. Moran when Mr. Moran was X-rayed. Cpl. Knelsen wanted to make sure that if any evidence emerged, it would be seized. None emerged. [ 106 ] Cpl. Knelsen remained at the hospital until 2:45 a.m. He “maintained continuity” of Mr. Moran and observed him. He did not interact with Mr. Moran. He had no conversation with Mr. Moran. He did not hear Mr. Moran say anything other than his name when asked by a nurse. [ 107 ] Mr. Moran was not alone with any other officer during Cpl. Knelsen’s time with Mr. Moran. (

b) Voluntariness [ 108 ] Mr. Moran made no statement in Cpl. Knelsen’s presence. Cpl. Knelsen asked Mr. Moran no questions. Cpl. Knelsen said nothing to Mr. Moran. (

c) Right to Counsel [ 109 ] The Defence did not argue that Mr. Moran was detained during this stay in the hospital. In my view, the Defence was correct not to advance this argument. [ 110 ] Cpl. Knelsen was visibly present while Mr. Moran was in the trauma room. Mr. Moran was under obvious and manifest surveillance. Mr. Moran was observed, but that was all. [ 111 ] For Cpl. Knelsen, Mr. Moran was a “person of interest” only. Cpl. Knelsen did not have information that would have led him to conclude Mr. Moran was a suspect. Mr. Moran, for all Cpl. Knelsen knew, could have been a victim. [ 112 ] Mr.

Moran was in a bed in a hospital, where Mr. Moran had attended and where he had been admitted because of the injuries to his leg. Mr. Moran was not restrained in any fashion in his hospital bed. Cpl. Knelsen said nothing to Mr. Moran. Cpl. Knelsen did nothing to impede Mr. Moran’s ability to leave the hospital, whether by Cpl. Knelsen’s positioning in the vicinity of Mr. Moran’s bed or otherwise. Mr. Moran remained in the hospital for medical reasons not because he was forced to remain by the police. Mr.

Moran, ultimately, was discharged from the hospital and began to leave – at least to the point, as will be reviewed in a moment, when he was arrested in relation to another matter. [ 113 ] Mr. Moran did not testify to anything respecting Cpl. Knelsen’s attendance at the hospital that would suggest that he was detained by Cpl. Knelsen. [ 114 ] I will return below to the impact on voluntariness of Cpl. Knelsen’s interaction with Mr. Moran. 2. Cst. Jonathan Frankton and the arrest for possession of stolen property (

a) Prior to Arrest [ 115 ] Cst. Jonathan Frankton had initially attended at the Dumont crime scene. Cst. Frankton did scene security. He was then told to relieve Cpl. Knelsen.

[ 116 ] Cst. Frankton attended at the hospital. Cpl. Knelsen advised him that Mr. Moran was believed to be involved in the shooting, he was not under arrest, and Cst. Frankton was not to discuss the shooting with Mr. Moran. Cst. Frankton was to call the Major Crimes Unit when Mr. Moran was released from hospital. Cst. Frankton relieved Cpl. Knelsen at 2:46 a.m. [ 117 ] Cst. Frankton stayed close to the front desk in the vicinity of Mr. Moran’s bed until Mr. Moran was discharged from hospital. Mr. Moran spent most of the time sitting on his bed, waiting to be discharged. [ 118 ] Cst.

Frankton did not say anything to Mr. Moran, with two exceptions. Mr. Moran asked Cst. Frankton, shortly after he arrived, whether he was under arrest. Cst. Frankton told him he was not. At some point, Mr. Moran asked when he’d be released. Cst. Frankton said it would be up to the doctor. [ 119 ] Mr. Moran was discharged from the hospital at about 7 a.m. on April 28. A doctor told him he was free to go. (

b) The Arrest [ 120 ] Upon his discharge from hospital on April 28, 2019, Mr. Moran was arrested by Cst. Frankton for possession of stolen property. [ 121 ] Mr. Moran’s and Cst. Frankton’s accounts of the arrest differ. This interaction might be thought to be a collateral matter, but if Mr. Moran’s account were true, it could be relevant to the voluntariness of Mr. Moran’s later statements to the police. (

i) Cst. Frankton’s Account [ 122 ] Cst. Frankton knew Mr. Moran from previous encounters. [ 123 ] According to Cst. Frankton, after being told by the doctor that he was free to go, Mr. Moran left the hospital and waited outside the hospital for a cab. The cab, a van, pulled up. [ 124 ] Cst. Frankton was observing Mr. Moran, initially from the emergency room. [ 125 ] In cross-examination, Cst. Frankton stated that he could not recall what Mr. Moran was wearing when he left the hospital. “He was clothed,” said Cst. Frankton. [ 126 ] Cst. Frankton called Major Crimes to advise that Mr. Moran was leaving.

He could not get hold of anyone. [ 127 ] Mr. Moran departed in the cab. [ 128 ] Cst. Frankton left the hospital and got into his patrol car. [ 129 ] Cst. Frankton then heard on the radio that there were grounds to arrest Mr. Moran for possession of stolen property. [ 130 ] Cst. Frankton drove after the cab, stopped it, and arrested Mr. Moran for possession of stolen property. The stop occurred in the hospital parking lot. [ 131 ] In cross-examination, Cst. Frankton denied that another officer was present when Mr. Moran was arrested and denied that he and another officer “tackled” Mr.

Moran. [ 132 ] Also in cross-examination, Cst. Frankton stated that he did not recall any resistance to arrest from Mr. Moran or that Mr. Moran tried to punch him. He stated that he did not have to use much force to put on the handcuffs. [ 133 ] Cst. Frankton told Mr. Moran he was under arrest for possession of stolen property, put him in the back of the patrol car, then read Mr. Moran’s Charter rights and caution from a card. Cst. Frankton asked Mr. Moran whether he understood. Mr. Moran said, “I’m charging you with harassment.” Cst. Frankton asked whether Mr. Moran understood his right to talk to a lawyer. Mr.

Moran replied that he’d already said Yes to that, and inquired whether Cst. Frankton was deaf or just stupid. [ 134 ] Cst. Frankton drove directly to the Lloydminster RCMP Detachment. Mr. Moran was taken from the vehicle bay to the booking area where he was uncuffed and searched. [ 135 ] When Mr. Moran was removed from the patrol car he was upset. In the booking area, he said “I was just shot in the leg. I just watched my friend get murdered.” [ 136 ] At 8:00 a.m. he was put into the phone room to call a lawyer. [ 137 ] Cst. Frankton did not dial the phone for Mr. Moran. Cst.

Frankton said he could see him speaking. Cst. Frankton did not know whether the person Mr. Moran spoke to was a lawyer. [ 138 ] Two minutes later, Mr. Moran stood up and faced the door. Cst. Frankton interpreted that as meaning he was done. Mr. Moran came out of the phone room. He was taken to his cell. He said nothing about the call. [ 139 ] Cst. Frankton asked Mr. Moran no questions other than those relating to his understanding of Charter rights. [ 140 ] In Cst. Frankton’s opinion, Mr. Moran did not seem “overly medicated.” His speech was clear. He did not seem confused. Mr.

Moran had a limp but he could stand on both feet. [ 141 ] In the course of his interactions with Cst. Frankton, Mr. Moran made no statements.

(ii) Mr. Moran’s Account [ 142 ] Mr. Moran testified that when he was in the hospital, a police officer was in the room watching him. When the doctor said he could leave, the officer started following him. He was “three steps behind.” [ 143 ] When Mr. Moran got to the exit, he saw an undercover car pull up. The plain-clothes officer started talking to the officer behind Mr. Moran. Mr. Moran heard that there was a warrant out. They “jumped” him. He started “fighting them.” He was “trying to get away from them,” “trying to get home.” They “manhandled” Mr. Moran to the ground.

He was then taken to the local detachment. [ 144 ] Mr. Moran denied that a cab was called or that he called a cab. He had no money. [ 145 ] He was going to walk home. He confirmed in cross-examination that the distance was about 1.5 kilometers, about 10 blocks. [ 146 ] Mr. Moran said that he was wearing hospital scrubs. He didn’t get clothing until arriving at the Detachment. He was given some clothes there. He did not recall his footware. [ 147 ] In cross-examination Mr. Moran said that he made a complaint to the RCMP about his arrest, but there was no documentary confirmation of this. [ 148 ] Mr.

Moran did not mention the use of excessive force in his arrest to Justice of the Peace during bail proceedings: “why would I talk to him about that.” He didn’t mention this to Sgt. Reister or Cst. Gratton: “why would I do that?” (iii) Factual Assessment [ 149 ] I accept Cst. Frankton’s version of the events. I do not accept Mr. Moran’s account. For a discussion of the burden of proof, see

part C.4(

a) below, respecting Mr. Moran’s interaction with Cst. Dalueg and Cst. Harper. [ 150 ] Mr. Moran claimed to have been released in hospital scrubs. I find that highly improbable. Releasing a patient in that manner might occasion liability for the hospital and would certainly risk reputational liability. Mr. Moran would not have been the first patient not to have clothing remaining at discharge. The hospital would likely have had some clothing on hand, as Mr. Moran said the Detachment did. [ 151 ] Mr. Moran claimed that he was planning to walk home.

He admitted in cross-examination that his residence was about 10 blocks away. He had just been discharged after spending the night in hospital for a leg wound. Walking home would not have been doctor-recommended. It is likely that Mr. Moran’s wound was not severe or debilitating, a matter I will return to. But even so, it would not make sense to re-open fresh wounds by walking and thereby increase the chance of infection. [ 152 ] Cst. Frankton had notes of events. There was no suggestion that his notes were not made soon after the events. On the evidence, Cst.

Frankton had no motivation not to keep accurate notes. [ 153 ] The comments made by Mr. Moran after being Chartered were consistent with Mr. Moran’s deportment and types of answers given in cross-examination. [ 154 ] Getting assistance with the arrest of Mr. Moran would not be something discreditable for Cst. Frankton, particularly if Mr. Moran had resisted arrest, as he had claimed. [ 155 ] Mr. Moran had identified the second officer’s vehicle as an undercover vehicle. If an undercover vehicle were present, it would likely have been there to initiate surveillance of Mr. Moran.

It would not make sense for a surveillance officer to drive up and participate in Mr. Moran’s arrest. It is true that the undercover vehicle may have been present for some other reason than surveilling Mr. Moran. That would have been a coincidence not pursued in cross-examination of Cst. Frankton. [ 156 ] It is possible that Mr. Moran conflated memories of some other contact or contacts with Cst. Frankton. Regardless, I cannot find that Mr. Moran’s memory of what occurred was reliable. In contrast, I have no reason for considering Cst. Frankton’s account not to be reliable. (

c) Assessment [ 157 ] There was no contention that Cst. Frankton violated Mr. Moran’s Charter rights. Prior to arresting Mr. Moran, Cst. Frankton did not detain Mr. Moran. Indeed, Mr. Moran was leaving the hospital when he was arrested. There was no contention that following arrest Cst. Frankton improperly Chartered Mr. Moran or that there was any delay in the facilitation of Mr. Moran’s access to counsel. [ 158 ] Mr. Moran made no statement to Cst. Frankton. [ 159 ] There was no suggestion that the interaction with Cst.

Frankton, considered by itself, ran afoul of the voluntariness rules, especially given my factual findings about the interaction. This conclusion would follow regardless of whose version of events I accepted. Cst. Frankton took no statement, gathered no evidence from Mr. Moran. [ 160 ] I will return to the impact of this interaction on the voluntariness of the May 30/31 Interviews below. B. April 28, 2019 Interview with Cpl. James McConnell [ 161 ] At about 3:30 p.m. on April 28, Mr. Moran was released from custody. He began to leave the Detachment and walked into the detachment lobby. He encountered Cpl.

James McConnell. An interview followed with Cpl. McConnell.

1. Cpl. McConnell’s Account [ 162 ] Cpl. McConnell was a member of the Major Crimes Unit. He was contacted respecting the murder of Mr. Dumont on April 27, 2019. On April 28, he travelled to Lloydminster. His assignment was as “field investigator,” to take statements, conduct inquiries, and gather evidence. [ 163 ] Cpl. McConnell first met Mr. Moran at the Lloydminster RCMP Detachment. Cpl. McConnell was in plainclothes. He was not carrying a sidearm or other weapons. [ 164 ] They met in an interview room in the Detachment near the front counter.

The room is separated from the public area by a wall with a door to the public area. Another door and wall are adjacent to the secure side of the Detachment. [ 165 ] The room has a table and audio-visual recording equipment. [ 166 ] Cpl. McConnell knew that Mr. Moran was at the Detachment, arrested for matters that had nothing to do with the murder of Mr. Dumont. Cpl. McConnell knew that Mr. Moran would be released. He knew that Mr. Moran had been shot in the leg and treated at hospital. Cpl. McConnell had monitored Chelsey Hart’s interview. Ms. Hart had stated that Mr.

Moran was at the shooting scene and, when asked by the shooter “Is this him?” Mr. Moran had answered affirmatively, before Mr. Dumont was shot. [ 167 ] Cpl. McConnell stated that Mr. Moran had been “identified as a suspect.” In his mind, Cpl. McConnell knew that Mr. Moran had “potential jeopardy.” He may have been involved in the murder, but it was possible that he wasn’t involved. Cpl. McConnell did not believe that he had probable grounds to arrest Mr. Moran for murder. [ 168 ] Cpl. McConnell did not interview Mr. Moran in a secure part of the Detachment because “Mr.

Moran was not detained for our investigation.” [ 169 ] To ensure that Mr. Moran’s interaction with him was voluntary, Cpl. McConnell • selected the interview location in the public area of the Detachment • left the door open to the public area • sat on the “far” side of the table, away from the door leading to the public area, so there was no barrier to Mr. Moran leaving the room (Cpl. McConnell was not between Mr. Moran and the door) • told Mr. Moran he was free to leave if he chose not to speak. [ 170 ] Cpl. McConnell believed that during the interview, Mr. Moran understood what was being said to him. Mr.

Moran’s demeanour was consistent with having been shot in the leg. He was sober, able to understand. He was in some pain but the pain seemed to be manageable. [ 171 ] After the April 28 interview, Cpl. McConnell did not interact with Mr. Moran again until May 30/31 Interviews. 2. The Interview [ 172 ] References will be to the transcript of the April 28, 2019 interview, tab 1 of the Statements of Mark Moran (April 28 interview). The interview was audio-visual recorded. [ 173 ] Cpl. McConnell approached Mr. Moran as he was beginning to leave the Detachment. He identified himself.

He asked, “Do you have a minute?”, said “I just want to talk to you about Ray,” then said “it’s up to you, obviously you’ve been released you’re free to go, but … I think there’s some things that’d be good for us to … discuss … If you have a minute” (2.11-22). Mr. Moran said “I can, I guess, yeah sure” (2.23). [ 174 ] Cpl. McConnell asked Mr. Moran if he minded going into the interview room for privacy (2.24-25). [ 175 ] He told Mr. Moran that …. the reason we’re here, is you’re free to go.

You’re not under arrest … Umm, that door is open, umm, you know if other people come in here and, maybe we’ll want to close it just for privacy … But you’re not under arrest. Okay? But, I can tell you that you are under investigation … For [Mr. Dumont’s] murder (2.48-56). [ 176 ] Mr. Moran said that he understood. He said that it means that “I could get charged for, something that, I’m being involved in ….” (4.61-62). [ 177 ] Cpl. McConnell said that “you could end up being charged with that, and that’s a pretty big deal” (4.65-66). [ 178 ] Cpl. McConnell cautioned Mr. Moran (4.84-88). He did not refer to Mr.

Moran’s right to counsel. [ 179 ] Cpl. McConnell advised Mr. Moran that the interview was being audio and video recorded, and repeated that he could leave at any time. He then said his purpose was to find out what happened to Mr. Dumont (5.94-104). [ 180 ] Mr. Moran confirmed that he “pulled up to talk to [Mr. Dumont]. Cause he’s my friend. And, as I was talking to him, someone pulled up behind him in a car, and got out and shot him” (5.111-115; 7.176; 8.178; 9.206-208).

[181] Mr. Moran denied that he had anything to do with the shooting (6.127). [182] Mr. Moran said that he had known Mr. Dumont for six or seven years. He had sold drugs to Mr. Dumont in the past (6.132-135). He’d never had a problem with Mr. Dumont (6.142). Cpl. McConnell asked how Mr. Moran came to bump into Mr. Dumont. Mr.Moran said “he wanted to buy drugs off me” (7.161-164). [183] Shortly thereafter, Mr. Moran left the interview room. Mr. Moran gave Cpl. McConnell his telephone number. Mr. Moran againconfirmed that “I don’t know anything about the guy that shot him” (9.203-204). [184] Mr.

Moran began to leave the Detachment. Cpl. McConnell said “I’ll try and get in touch with you.” [185] Cpl. McConnell followed Mr. Moran out. He had two purposes. He wanted to make arrangements to talk to Mr. Moran again.He also wanted to alert a surveillance team that was waiting for Mr. Moran. [186] Cpl. McConnell’s last words to Mr. Moran, when he and Mr. Moran were outside, were “Alright dude. I’ll be in touch okay?”(10.235). [187] The interaction between Cpl. McConnell and Mr. Moran lasted about 14 minutes in total. 3. Mr. Moran’s Account [188] Mr.

Moran said that at the time of this interview, he was in pain from having been shot in the leg. His state of mind was notgood, because he had just seen Mr. Dumont get shot. In cross-examination, he said that he was “not in a great state of mind,” he was“distraught,” because he saw Mr. Dumont murdered and he himself was shot. [189] When they first entered the interview room, Cpl. McConnell had asked whether Mr. Moran was okay, to which Mr. Moranreplied “I got shot.” Mr. Moran said that he watched Mr. Dumont get shot (3.39). As Mr.

Moran was leaving the interview room, he saidthat “I really don’t want to do this right now,” “Cause he was my friend, and I watched him, a bullet go through his head” (7.170-173).After they left the room, he said “my leg hurts and, well I am sad that … he’s dead ….” (8.185). [190] Mr. Moran said that he didn’t know if he was a suspect or a potential witness. In cross-examination, he said that was how heunderstood Cpl. McConnell’s comment that he was “under investigation,” and Cpl. McConnell’s warning that he could be charged withmurder. [191] Mr. Moran thought he was being detained.

He considered himself “trapped” in the room with Cpl. McConnell. [192] Mr. Moran did not remember if Cpl. McConnell told Mr. Moran to come with him. Mr. Moran said that he’d “been in policecustody enough” that if they tell you, you do it. [193] As for Cpl. McConnell saying that Mr. Moran was free to go, Mr. Moran did understand, but he was just shot and trying to getout of there; he was “not even really listening to him.” [194] When asked whether he knew he was not obligated to stay and talk to Cpl. McConnell, Mr. Moran said that if he was told to goin a room, he’d go. [195] Mr. Moran conceded that Cpl.

McConnell did not close the door, but “he said he was going to.” [196] Mr. Moran confirmed that he got up and left, so he knew then he could leave, but that was only “at that time:” “at that time Iknew I could leave.” [197] Mr. Moran said that he was in a lot of pain. He wanted to go home and take it easy. 4. Assessment [198] Two issues arise. First, were Mr. Moran’s statements in the April 28 interview voluntary? Second, did Cpl. McConnell detainMr. Moran? If so, Cpl. McConnell violated Mr.

Moran’s Charter rights by failing to advise him of his right to counsel under s. 10(b):Grant at para 58. [199] Properly, there was no argument that Mr. Moran’s s. 10(

a) rights were violated. Cpl. McConnell properly described the chargethat Mr. Moran could be facing. Cpl. McConnell properly and promptly explained the reason for his interaction with Mr. Moran. See R vNguyen, 2008 ONCA 49 at paras 16 and 17; R v Evans, (SCC), [1991] 1 SCR 869, McLachlin J, as she then was, at886-887. (

a) Voluntariness [200] All statements made by Mr. Moran to Cpl. McConnell in the April 28 interview were voluntary. [201] Mr. Moran had recently received his leg wounds and was not long out of hospital. Mr. Dumont had been killed in front of him. Iaccept that Mr. Moran was in some pain and that his state of mind was not “great.” [202] Mr. Moran had an operating mind, however. The evidence did not suggest that he was in shock or cognitively impaired in anyway. There was no evidence that his cognitive abilities were degraded by medication. He fully understood the nature of the interview.Mr.

Moran said nothing inculpatory. He only confirmed facts that could not be denied. He left the interview of his own accord and

brushed off Cpl. McConnell’s overtures for a later interview. [ 203 ] In testimony Mr. Moran said that he hadn’t understood whether he was a suspect or a potential witness. I reject that claim. Mr. Moran’s explanation about his understanding of Cpl. McConnell’s representation that he was “under investigation” was not supported by the language Cpl. McConnell used or by Mr. Moran’s response in the interview. In the interview, Cpl. McConnell explained that Mr. Moran was under investigation and warned that he could end up being charged with murder. Mr. Moran had said he understood. [ 204 ] Cpl.

McConnell cautioned Mr. Moran. He confirmed that Mr. Moran did not have to talk to him and that he was free to go (2.14-18; 3.48, 53). He warned Mr. Moran that anything he said could be used as evidence (4.84-5.1). Mr. Moran had been arrested on another matter that morning. Aside from his prior experience with the criminal justice system, he was aware, and his awareness had been reinforced, of his right not to cooperate with the authorities. Mr. Moran had the information requisite for a meaningful choice to speak with Cpl. McConnell. [ 205 ] Cpl. McConnell did not induce Mr.

Moran to talk through any form of quid pro quo . Shortly before the end of the interaction, Cpl. McConnell referred to counselling for Mr. Moran, but Mr. Moran dismissed that suggestion (9.227-10.234). No offer of counselling was made by Cpl. McConnell. [ 206 ] The interaction was short and the circumstances of the interview could not be regarded as “oppressive.” [ 207 ] I find, beyond a reasonable doubt, that Mr. Moran’s statements to Cpl.

McConnell in the April 28 interview were voluntary. [ 208 ] I will consider the impact of this interaction in connection with the voluntariness of the May 30/31 Statements below. (

b) Detention [ 209 ] Mr. Moran bears the burden of establishing that he was detained. [ 210 ] Mr. Moran was not physically restrained. He was under no legal obligation to provide information to Cpl. McConnell. The issue is whether a reasonable person, in Mr. Moran’s circumstances, would have concluded that he or she had no choice but to comply with Cpl. McConnell’s request to interview him and no choice simply to walk away. [ 211 ] Mr. Moran testified that he considered himself “trapped” in the room with Cpl. McConnell. I do not accept this testimony. He left the interview when he decided to leave the interview.

I consider Mr. Moran’s explanation that he knew he could leave only “at that time” and not earlier to be baseless. Nothing in the short interview had changed that would support a change in Mr. Moran’s appreciation of whether or not he was detained. In any event, Mr. Moran’s subjective view is neither determinative nor even necessarily a relevant factor. The issue is whether a reasonable person would have considered himself or herself to have been detained. Having rejected Mr.

Moran’s testimonial account of his appreciation of his circumstances, I must determine whether the other evidence in the voir dire establishes detention. [ 212 ] Some aspects of the interview could support a finding of detention: • Mr. Moran was a subject of focused investigation. He was a suspect. Cpl. McConnell knew that Ms. Hart implicated Mr. Moran in Mr. Dumont’s shooting. • The interview was in an interview room at the Lloydminster RCMP Detachment. • Mr. Moran did not attend at the Detachment on his own, by choice. He had been arrested and transported there. • The interview was not brief.

It lasted just under about 15 minutes. [ 213 ] Other aspects of the interview do not support a finding of detention: [ 214 ] Mr. Moran was only a suspect. Cpl. McConnell did not believe that there were reasonable grounds to arrest Mr. Moran. The murder investigation was at a very early stage. Cpl. McConnell had only very recently come onto the case. [ 215 ] Mr. Moran had been released from custody. He was on his way out of the building. [ 216 ] The interview took place in an interview room just off the public area of the Detachment.

The room was not in a secure area, but close to the building’s exit. [ 217 ] The interview room door was not closed during the interview. Mr. Moran had said that Cpl. McConnell had said he was “going to” close the door. First, he didn’t say that. Second, Cpl. McConnell had referred to closing the door for privacy given the proximity to the public area of the Detachment. Mr. Moran would have understood this, having just come from there. [ 218 ] Cpl. McConnell did not block the exit from the interview room. He sat behind the table, away from the door open to the public area. [ 219 ] Cpl.

McConnell was the only police officer, the only other person besides Mr. Moran, in the interview room. [ 220 ] Cpl. McConnell did not touch Mr. Moran, or engage in any physical conduct or positioning that might be regarded as “tactical,” as controlling Mr. Moran. Cpl. McConnell was not in uniform and carried no weapons. [ 221 ] While the interview was not brief in the sense of being momentary or a mere minute or two in duration, neither was it long. The interview began with cautions and warnings. The “questions” began at about half-way down the fifth (of 10) page of transcript, and

ended toward the top of the ninth page of transcript. [ 222 ] Cpl. McConnell asked Mr. Moran if he had a minute to talk about Mr. Dumont. I do not find, as suggested by Defence counsel, that Cpl. McConnell “directed” Mr. Moran that he wanted to speak to him. Cpl. McConnell’s words were a request not a direction. [ 223 ] Cpl. McConnell’s tone, volume of speech, and choice of language were at all times conversational and not directive, controlling, or intimidating. [ 224 ] Cpl. McConnell told Mr. Moran that he was free to go three times. Cpl. McConnell advised Mr.

Moran that he was free to go in “unambiguous terms” (see Grant at paras 32, 39 ). Mr. Moran had testified that he was just shot and trying to get out of there; he was “not even really listening to [Cpl. McConnell].” Mr. Moran’s testimony is contradicted by his words and actions in the interview. I reject that testimony. In any event, to rely on testimony like this would be to subjectivize what must be an objective inquiry – even if some personal factors relevant to the objective inquiry must be taken into account. [ 225 ] Mr. Moran demonstrated that he understood what Cpl.

McConnell said by leaving the interview. [ 226 ] Mr. Moran declined further communications with Cpl. McConnell. [ 227 ] Cpl. McConnell followed Mr. Moran out as he left and did not attempt to cause him to remain in the interview room. I reject Defence counsel’s characterization of Cpl. McConnell’s actions as “pursuing” Mr. Moran out of the room. Cpl. McConnell was asking for another chance to talk later. [ 228 ] Cpl. McConnell received a phone number from Mr. Moran but no confirmation that Mr. Moran would speak to him. I reject Defence counsel’s characterization of Cpl.

McConnell’s words as amounting to a threat or promise that Mr. Moran would hear from him again, as if Cpl. McConnell had said something like “you haven’t seen the last of me.” Cpl. McConnell had said only “I’ll try to get in touch with you” (9.224), “I’ll be in touch, okay?” (10.235). [ 229 ] At the time of the interview, Mr. Moran was about 33 years old. He was not a youthful offender. [ 230 ] As for level of sophistication, Le cautions not to equate the frequency of contact with the police with the level of appreciation of the precise legal limits on State authority. I find that Mr.

Moran maintained presence of mind and a focus on the protection of his own

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