R v Musila, 2023 ABKB 238

Court of King’s Bench of Alberta Citation: R v Musila, 2023 ABKB 238 Date: 20230424 Docket: 170772719Q1 Registry: Edmonton Between: His Majesty the King Crown - and - Beryl Musila Accused Restriction on Publication Trial information in Absence of Jury – See the Criminal Code , section 648(1) . Permission having been given to the jurors to separate, information regarding any portion of the trial at which the jury is not present shall not be published, broadcast, or transmitted in any way.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. _______________________________________________________ Decision of the Honourable Justice L.R.A. Ackerl _______________________________________________________

Table of Contents I. Introduction . 3 II. The Voluntariness Voir Dire . 4 A. Audio/Video Recording of The Post-Arrest Statement 4 1. Position of the Parties . 4

a) The Law .. 4

b) Analysis . 5 B. The Viva Voce Testimony . 6 C. Statements of the Accused . 6 1. The Phone Statement 6 2. The Pre-Arrest Interview .. 7 3. The Post-Arrest Interview .. 8

a) Background: Arrest of the Accused . 8

b) Background: Detention of the Accused . 9

c) Conduct of the Post-Arrest Interview .. 10 D. The Law .. 15 1. Operating Mind . 17 2. Threats or Promises . 17 3. Atmosphere of Oppression . 17 4. Police Trickery . 18 E. Position of the Parties . 18 F. Analysis . 19 1. Operating Mind . 19 2. Threats and Promises . 20 3. Atmosphere of Oppression . 20 4. Police Trickery . 21 5. Characteristics of the Accused . 21

a) Police Presence . 22

b) Member of a Racial Minority . 22

c) Mental Health Issues . 23

d) Drug and Alcohol Use . 23

e) Criminal Record . 24

f) Conclusion . 24 III. The Charter Application . 24 A. Timeline of Events . 25 B. The Law: Arbitrary Detention . 26 C. Analysis: Arbitrary Detention . 28

D. The Law: Stay of Proceedings . 29 E. Position of the Parties . 32 F. Analysis . 32 G. Section 24(2) of the Charter . 34 1. Seriousness of the Breach . 36 2. Impact of the Breach . 36 3. Societal Interest in Adjudication on the Merits . 37 IV. Conclusion . 37 I. Introduction [ 1 ] Beryl Musila, (the Accused) is charged with first degree murder in the death of Ronald Worsfold (the Deceased) contrary to s 235(1) of the Criminal Code and indecently interfering with the human remains of the Deceased, contrary to s 182(

b) of the Criminal Code . The jury trial is scheduled to begin Tuesday, April 25, 2023. [ 2 ] A voir dire was held from October 11 to November 9, 2022 to address three separate issues. The first issue concerns voluntariness of three statements made by the Accused to police. The Accused admits a phone call and interview with police on July 9, 2017 are voluntary. Both statements occurred prior to arrest. I accept that the voluntariness of the Accused’s statements to police prior to arrest are proven voluntary beyond a reasonable doubt.

I also agree those two statements and attendant circumstances provide relevant context for assessing voluntariness of the Accused’s post-arrest statement. [ 3 ] The Accused contests voluntariness of the post-arrest interview conducted on July 10 th , 2017.The Accused also argues the audio and video evidence of the Accused’s post-arrest statement is not substantially accurate and should be ruled inadmissible. Additionally, the Accused applied to reopen the voir dire to challenge admissibility of those audio and video recordings on grounds they do not fully record the entire interview.

That particular application has previously been dismissed. [ 4 ] Finally, the Accused argues her s. 9 Charter rights were breached by police failing to comply with Criminal Code s 503(1) that requires an arrested person to be brought before a justice for a bail hearing no later than 24 hours after arrest. II. The Voluntariness Voir Dire [ 5 ] The voir dire evidence included viva voce testimony of police officers and police detachment staff and audio and video recordings. A. Audio/Video Recording of The Post-Arrest Statement 1.

Position of the Parties [ 6 ] Defence counsel argued this recording is inadmissible on two grounds. The initial portion of the interview was audio recorded only and six audio excerpts were inaudible. He further contends a criminal standard of proof governs admission of the audio/video evidence. The Crown has not discharged that burden of proof. [ 7 ] Crown agrees that admissibility requires the Court be satisfied the recordings are substantially accurate and fairly represent what they purport to depict. However, Crown contends that threshold need only be satisfied on a balance of probabilities.

That test has been met. The Crown adds that a clear jury instruction regarding permissible and impermissible use of this evidence would fully address any recording issues.

a) The Law [ 8 ] In R v Bulldog , 2015 ABCA 251 [ Bulldog ] the Court addressed the requirements for admission of video recorded evidence. The standard of proof is discussed at paras 39-40: In our view, the criminal standard of proof has no application here. The basic rule is that it applies to evidence of the essential elements of the offence, but not to the evidence of other facts, including facts necessary to establish admissibility of evidence: R v Jeffrey , 1993 ABCA 245 at paras 18-22 , 12 Alta LR (3d) 153 ; R v Murphy , 2011 NSCA 54 at para 41 , 274 CCC (3d) 502 .

The exception pointed to by the appellants of instances where admission of the evidence “may have a conclusive effect” has only been applied to confessions and to hearsay evidence that satisfies the co-conspirators’ exception. [ 9 ] At para 40 the Court expressly declined to decide “between the standard of probabilities and something lower” as the governing standard where an exception did not exist

[ 10 ] The test for admissibility of altered video or audio recorded evidence is summarized at para 33: Put simply, the mere fact of alteration does not automatically render a video recording inadmissible. It follows that the Crown’s failure to establish that this video recording was not altered should not be fatal, so long as the Crown proves that it is a substantially accurate and fair representation of what it purports to show.

All this is, of course, subject to the standard framework for admission, under which a video recording may be excluded on the basis of irrelevance ( Penney ), where its prejudicial effect exceeds its probative value ( R v Veinot , 2011 NSCA 120 at paras 24-27 , 311 NSR (2d) 267 ), or where there is reasonable doubt that the video identifying the accused is a fabrication. [ 11 ] In R v. Merritt , 2023 ONCA 3 [ Merritt ] the admissibility of partially inaudible audio tapes was in issue.

In conducting this analysis, the Court at paras 74-75, endorsed the general principles relating to admission and use of incomplete statements found in R v Schneider , 2022 SCC 34 : The ratio of Schneider is clear and can be expressed using Rowe J.’s words in para. 63: Where “there [is] sufficient context for the jury to give meaning to the words that [are] overheard, such that the evidence overcomes the low threshold for (logical) relevance,” a partially inaudible statement will be admissible, subject to exclusionary discretion.

I do not read Schneider as holding that partial statements can be admitted into evidence as admissions even where there is not sufficient context to enable meaning to be given to the identified words. Indeed, I read Schneider as holding the contrary. As I have explained, Rowe J. made clear in Schneider that the admissibility of incomplete statement evidence requires relevance, which is determined as a matter of logic and human experience by inquiring whether the evidence tends to increase or decrease the probability of the existence of a fact at issue: Schneider , at paras. 39, 76 .

If the meaning of a statement offered as an admission cannot be determined, it cannot logically increase or decrease the probability of the existence of a fact in issue and therefore does not meet even the low threshold of relevance.

b) Analysis [ 12 ] The Accused is charged with the first degree murder of Ronald Worsfold. During the post-arrest statement, she provides details about her involvement in that murder. If accepted by the jury that evidence “may have a conclusive effect” upon their determination. Consequently, for the limited purposes of this analysis, I adopt the criminal standard of proof notwithstanding this voir dire concerns admissibility of the post-arrest statement.

The Crown must prove admissibility of the audio/video recordings beyond a reasonable doubt. [ 13 ] The post-arrest interview lasted about 4 hours and 45 minutes and was entirely recorded. It was audio and video recorded save for the first 22 minutes, 18 seconds. That interview portion was audio recorded only. I disagree with Defence counsel’s submission that this more limited initial recording impacts admissibility. While recommended, there is no legal requirement that a police interview of an accused be audio or “preferably” videotaped, R v Oickle , [2000] 2 S.C.R. at para 46 [Oickle].

Moreover, a non-recorded interview is not “inherently suspect”, Oickle at para 46. [ 14 ] Police had the capability to both audio and videotape the entirety of the Accused’s post-arrest statement. However, the failure to videotape the initial portion of that interview was not a deliberate police tactic. Instead, it arose inadvertently. Sgt. Evert was responsible for monitoring the interview from an adjacent room.

He explained: it was about 15 minutes into the interview that I realized the video portion wasn’t recording and I hit “record” at that time [ 15 ] I accept this explanation which is consistent with concerted police efforts to record all interactions with the Accused. Mere inattention does not raise suspicion about the temporary absence of video recording especially as that interview segment was entirely audio recorded.

Moreover, both officers who were privy to the post-arrest interview testified the audio and video recordings accurately captured all conversation that occurred during that interview. [ 16 ] Defence counsel also argued the audio recording was inadmissible because it contained six inaudible segments. All alleged defects were brief and occurred between 11:13 and 14:10 minutes after the video recording started. [ 17 ] These segments were replayed during oral argument. I conclude the alleged defects do not exist. The anomalies were the product of incompatibility between a media file and a DVD disc.

During the voir dire this was remedied by replaying the video which in turn activated the audio recording. I understand from Crown counsel this technical issue has now been resolved. [ 18 ] In the totality of circumstances, the Crown has proven beyond a reasonable doubt that the audio and video recordings are substantially accurate and fairly represent what they purport to show. The recorded statements are relevant and complete. They certainly provide sufficient context for a jury to give the interview conversation meaning. They are relevant and not subject to any exclusionary evidentiary rule. B.

The Viva Voce Testimony [ 19 ] Unless otherwise indicated, I accept the testimony of all police officers and detachment staff as credible and reliable. Their testimony forms the factual matrix detailed in this decision. [ 20 ] The audio and/or video recordings admitted as evidence buttressed the officers’ recall of all interviews with the Accused. The initial phone call, although not recorded, was witnessed by two separate police officers who provided generally corroborative testimony about that conversation.

The testimony of two police detachment staff responsible for monitoring the Accused in custody was consistent with detailed written reports. Evidence from an undercover police officer placed in cells with the Accused remained consistent and intact

during testimony. C. Statements of the Accused 1. The Phone Statement [ 21 ] On July 8, 2017, the Deceased’s daughter reported to Cst Barrette that her father was missing. She added the Accused had been at her father’s residence that morning and while there, had phoned Robert Rafters (Rafters). Cst Barrette attempted, without success, to contact the Accused by phone. When Cst Barrette returned to the police detachment, he entered the Deceased’s name into the missing person databank. [ 22 ] On July 9, 2017 at approximately 0022 hrs, Cst Barrette phoned Rafters to obtain information about the Deceased.

Cpl Blaylock listened to the phone call via speaker. Rafters answered the phone, and Cst Barrette identified himself as an RCMP member. Rafters acknowledged he was with the Accused, and upon request, passed the phone to the Accused. [ 23 ] Cst. Barrette identified himself to the Accused as an RCMP member from the St Albert detachment. They had a discussion lasting no more than five minutes. The Accused stated she and the Deceased had been together at the Deceased’s apartment the previous night. They had been intimate and were drinking. An argument occurred, so she left the apartment in the Deceased’s car.

The Deceased was not present when she returned to the apartment or when she awoke the following morning. [ 24 ] Cpl Blaylock asked the Accused for her current location so the officers could speak further with her in person. The call then ended abruptly. Cst Barette tried phoning back several times but received no answer. [ 25 ] Both police officers agreed that at the time of this phone call, the Accused was a person of interest in the missing person investigation. The Accused was not informed of this characterization.

The evidence on whether the Accused was cautioned is inconsistent and not sufficiently reliable to support its occurrence. However, both officers were certain that they did not threaten or offer an inducement to the Accused during the phone call. [ 26 ] At the time of the phone call police were not aware a crime had occurred. It is understandable and acceptable that a caution was not provided. During the phone conversation police made no demands and, while requesting a personal meeting, issued no directives. They did not offer any inducements to the Accused.

There was also no evidence of police trickery or oppression. In the totality of circumstances (and as admitted by Defence counsel) the phone call is proven voluntary beyond a reasonable doubt. 2. The Pre-Arrest Interview [ 27 ] On July 9, 2017 police requested Rafter’s mother drive her son and the Accused to the St. Albert RCMP detachment to be interviewed by police. Rafters and the Accused were separately interviewed upon arrival. [ 28 ] Sgt Ewert conducted the Accused’s interview, which was audio and video recorded.

This interview began at 12:35 PM and concluded at 3:01 that afternoon. [ 29 ] At the outset of the interview, the Accused was informed that police were looking for information to assist their missing person investigation of the Deceased. Sgt Ewert informed the Accused that she was “here of [her] own free accord” and was “100% free to go.” The Accused “absolutely” understood this.

In response to police asking if the Accused understood she was voluntarily attending and “you don’t have to speak with me” the Accused replied, “I do.” [ 30 ] Sgt Ewert then gave the following caution to the Accused: EWERT: And ah, but if you do say like right now we’re investigating ah, Ronald is a missing person, right? But if something happens here with this investigation and it involves maybe that ah, ah, Ronald is deceased or maybe Ronald was the victim of a homicide or something like that. Um, then it’s important that you understand that any information that we discuss here today, right?

Would be used in court as evidence. MUSILA: I do understand that. EWERT: That makes sense? Ok. So as long as that’s clear in your head we’re good to go. You can leave whenever you want, you don’t have to speak to me. But if we do speak, whatever we talk about today could be used in court as evidence. MUSILA: I do understand that. EWERT: But if we do speak, whatever we talk about today could be used in court as evidence...In this trial, does that make sense? MUSILA: Yeah [ 31 ] The Accused then offered she was “dealing with my emotions.

I just feel like, I just like need to talk.” [ 32 ] Shortly after the interview started the Accused stated she was “physically exhausted, mentally exhausted...felt lost...I’ve been drinking.” [ 33 ] Sgt Ewert pursued these concerns. The Accused explained that she “got a little bit of sleep” the previous night but had been “getting proper sleep” the previous 2 weeks. The Accused added that she experiences depression, anxiety and a sleeping disorder which causes psychosis.

She had not used her prescribed medication for “roughly two weeks.” The Accused admitted using cocaine and methamphetamine about four days before the interview and had consumed about “a glass and a half” of alcohol on the interview date but

agreed she was not currently “drunk.” [ 34 ] As admitted by Defence counsel, this pre-arrest statement is voluntary. It lasted just less than 2.5 hours and was entirely recorded. The Accused was not compelled but chose to both attend the detachment and participate in the interview. Timely issuance of a caution further illustrates her participation was informed and deliberate. The actual conduct of the interview, recognizing the particularities of this Accused, raises no concern about improper police inducements or threats, police trickery, oppression or presence of an operating mind. 3. The Post-Arrest Interview

a) Background: Arrest of the Accused [ 35 ] Several hours after the pre-arrest interview concluded, police were informed by a witness that the Accused had brought a body in a Rubbermaid tote to the witness’ rural property the previous day. The witness also told police the Accused had told him she killed the Deceased. [ 36 ] On July 9, 2017, at 1750 hrs the Accused was arrested at that property. Sgt Bradfield identified the Accused and verbally placed her under arrest. Sgt McGee then immediately assumed control of the arrest process. Cst Penny assisted Sgt McGee.

All of their interactions with the Accused were audio recorded. [ 37 ] Sgt McGee informed the Accused that she was being arrested for the murder of Ronald Worsfold. After the Accused responded, “cause those guys helped me” Sgt McGee instructed her “to stop talking to me... cause everything we’re saying is being recorded.” The Accused continued referencing events rather than directly acknowledging her understanding of the arrest. Sgt McGee emphasized “right now, we’ve got a legal requirement.

I’ve got some stuff that I have to read to you and I have some stuff that you have to understand.” [ 38 ] The Accused then acknowledged she was under arrest stating, “I do understand that.” She also responded “Yes Sir” when Sgt McGee asked whether she understood the right to retain and instruct counsel. [ 39 ] The Accused was twice cautioned by Sgt McGee. The initial caution advised: You may be charged or you will be charged with murder. Do you wish to say anything? You’re not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you understand?

The Accused responded: I do understand. When asked what the caution meant to her, she responded “I have a right to say what truly happened and not have these guys intimidate me anymore...why would they? Like tell me to do it and then drive it down here...my mental health right now is not okay.” [ 40 ] Sgt McGee then repeated the arrest charge and police caution: Okay. You understand that you’re going to be charged with murder, right? You understand that right? And you don’t have to say anything to me, but whatever you do say to me will be given in evidence. Okay?

And what that means is it’ll be used, it can be used against you in Court. The Accused replied, “I just want to talk to my lawyer at this point.” [ 41 ] During this conversation the Accused made various references to the state of her mental health. She twice stated, “my mental health right now is not okay,” adding she was “mentally exhausted.” The Accused advised she had not taken her psychosis medication for “a while.” She also stated she was not hurt or injured, had not eaten in several days, and had been drinking alcohol “all day.”

b) Background: Detention of the Accused [ 42 ] Sgt McGee and Cst Penny transported the Accused to the Stony Plain RCMP detachment, arriving at1845 hrs. Sgt McGee explained to the Accused her right to counsel, including counsel of choice and free legal advice. The Accused said she wanted “to talk to my psychiatrist.” Sgt McGee stressed it was more important that she prioritize speaking with counsel, but offered to relay that request to other police investigators. [ 43 ] Sgt McGee did not facilitate that contact.

Based on his experience as a police officer, it was “not required.” Sgt McGee recognized the Accused was upset and understood that she “had a few drinks,” but was confident she was capable of “speaking to counsel.” Sgt McGee would have made a mental health referral if he had been concerned. [ 44 ] The Accused, who did not have counsel, elected to access Legal Aid advice via phone. Sgt McGee telephoned Legal Aid and left a message. Before Legal Aid responded, the Accused requested an opportunity to contact a different lawyer. The Accused returned to the phone room and was provided a phone book.

The Accused identified a family law office. Sgt McGee suggested she look for the “right kind of lawyer.” The Accused selected Sarah Terry. Sgt McGee facilitated that phone contact. [ 45 ] Between 1929 hrs and 1945 hrs the Accused spoke with counsel. After the phone call concluded the Accused told Sgt McGee, “She told me not to talk anymore.” Sgt McGee then made arrangements for Ms. Terry to attend personally to speak with the Accused. The Accused was returned to her cell at 1948 hrs. During the next 35 minutes she received dinner and fell asleep.

[ 46 ] Between 2025 hrs and 2120 hrs the Accused and Ms. Terry met in an interview room. At 2120 hrs Ms. Terry left and the Accused returned to her cell. At 2127 hrs, the Accused told Sgt McGee she was not feeling well. Sgt McGee offered to arrange for paramedics to attend. The Accused declined, stating, “it’s not that I’m sick. It’s like I haven’t eaten a proper meal in days.” Sgt McGee repeated his offer to have paramedics attend.

The Accused declined, stating she just wanted to “be alone and sleep.” [ 47 ] Sgt McGee alerted the Accused that a very intoxicated and violent female was being brought into the detachment and there would be yelling and screaming. Sgt McGee closed the cell door at 2130 hrs. [ 48 ] About six minutes later, the Accused was asleep. A female undercover officer was placed in cells with the Accused. The Accused slept uninterrupted until 0724 hrs on July 10, 2017, at which time she was served breakfast. The Accused also slept between 0740 hrs and 0850 hrs.

When the Accused awoke, she and the undercover officer had a “general conversation” during which the Accused became emotional.

The Accused stated she was “afraid of a person” who had threatened her. [ 49 ] At 0924 hrs, Sgt McGee conducted a wellness check on the Accused who stated she did not “feel well” explaining “my whole body is just in pain.” She accepted Sgt McGee’s offer to have paramedics attend and examine her. [ 50 ] At 0937 hrs, two female paramedics arrived. [ 51 ] The Accused informed paramedics she had medication for depression which had not been taken in “quite a while.” She also mentioned taking an unnamed medication by injection.

The Accused acknowledged using “acid” and regularly using “meth.” She had “not much” alcohol to drink in the last 24 hours adding she “had a bottle of wine” prior to being arrested. [ 52 ] Paramedics informed Sgt McGee the Accused was “fit for incarceration.” The Accused was returned to her cell at 1000 hrs. [ 53 ] Between 1000 and 1041 hrs, the Accused was in her cell with the undercover officer. They had a conversation during which the Accused was crying and emotional.

The Accused fell asleep following that interaction. [ 54 ] The Crown does not seek to enter at trial any statements made by the Accused to the undercover officer. That encounter was addressed for the limited purpose of providing context for fully assessing voluntariness of the Accused’s interview with Insp Ravenhill.

c) Conduct of the Post-Arrest Interview [ 55 ] At 1041 hrs the Accused was removed from her cell by Insp Ravenhill and escorted to an interview room. During that transition the Accused described herself as “drained.” [ 56 ] The interview started at 1048 hrs and concluded at 1533 hrs. Insp Ravenhill took two recesses during which the Accused remained alone in the interview room. At 1257 hrs, the interview was halted for a 30 minute lunch break. At 1507 hrs, the interview was paused for four minutes to allow Insp Ravenhill to confer with police colleagues.

The interview conversation itself lasted about 4 hours and 11 minutes. [ 57 ] The interview room was properly described by the Crown as “standard” in appearance. It was located inside the detachment near the cellblock. It had appropriate ceiling lighting. There was no suggestion room temperature was uncomfortable. The single door to the room remained closed during the interview. The room furnishings (which occupied much of the floor space) consisted of a table and two chairs.

The Accused and Insp Ravenhill largely remained seated about two feet apart during their conversation. [ 58 ] At the outset of the interview Insp Ravenhill provided a caution to the Accused: RAVENHILL: Oh, okay. Um, uh, like I said earlier, uh Beryl, my name is Heidi, I'm a policer officer, I'm with the Major Crime Unit. MUSILA: Mm hmm. RAVENHILL: Okay? And Ber- (Unintelligible). And it's Beryl, is it? MUSILA: Yeah. RAVENHILL: How old are you, Beryl? MUSILA: Twenty-eight. RAVENHILL: You're beautiful. MUSILA: Thank you. RAVENHILL: Um, I understand you were arrested yesterday. Is that right? MUSILA: Mm hmm.

RAVENHILL: Here, I brought you a bottle of cold water ... MUSILA: Thank you.

RAVENHILL: ... if you want. Uh, you were arrested yesterday for murder. Is that correct? MUSILA: Yeah. RAVENHILL: Okay. RAVENHILL: Uh, you've already talked to your lawyer but the one thing that I am, uh, obligated to tell you; regardless of anything that anyone has said to you or you have said to any other person in authority, you're not obligated to say anything unless you wish to do so. But whatever you do so may be given as evidence. MUSILA: Yeah. RAVENHILL: Do you understand that? MUSILA: (Unintelligible). RAVENHILL: Sorry honey, I can't hear you.

MUSILA: Yes, I do. [ 59 ] Insp Ravenhill also confirmed with the Accused that, earlier that day, paramedics had addressed any of her medical needs. The Accused agreed with Insp Ravenhill’s suggestion that it was “mostly just stress getting to you.” The Accused also agreed she had slept while in custody. [ 60 ] Shortly after the interview began, the Accused introduced “Robert” into the conversation. She explained they were in a relationship and characterized his behaviour as controlling, manipulative, and violent. He had recently threatened to kill her.

The Accused had periodically sought refuge from him in a women’s shelter. She agreed with Insp Ravenhill’s comment that he has “a fairly strong hold on you.” There is no dispute that the “Robert” discussed during the interview was Rafters. [ 61 ] Approximately one hour after the interview started the Accused stated “I’m drained, I’m so tired ...I don’t care if I live or die.” She continued ...“I’m exhausted right now ...

I’m just have a fuckin breakdown in here...”. [ 62 ] At this point, Insp Ravenhill reminded the Accused that Rafters was also currently being interviewed by police: RAVENHILL: But I want you to think about one thing that's. very important. Okay? You did hear Rob's voice earlier because our investigators are talking to Rob. MUSILA: And I know. RAVENHILL: (Unintelligible). MUSILA: And he ruined my fuckin' life. He's just, he's (unintelligible). I couldn't even go down to the police station by myself. And all you hear, he's talking so loud and it's just intimidation of all of it. (Sniffs) I'm sorry.

RAVENHILL: Beryl, what do you think that Rob is telling the other investigators? MUSILA: I don't care. All that comes out of his mouth is always a damn lie. RAVENHILL: A lot of the things that you told yesterday to Aaron was the truth. MUSILA: I know. RAVENHILL: Okay? You've told us lots of things that are the truth. we· have a lot of reasons to believe you and if what you tell me today is the truth, we will figure that out. MUSILA: Yeah. RAVENHILL: Okay? And if you believe that Rob is another room right now .... MUSILA: He is.

RAVENHILL: ... telling a bunch of lies, don't you feel that it's important for us to hear the truth? MUSILA: Mmm. RAVENHILL: Good, bad or otherwise, like the truth is the truth and it's the easiest thing to remember and the easiest thing to prove. Okay, and we've already proven that a lot of things you told us yesterday, we've gorie back and proven that those things were the truth.

So you have a lot of credibility with our investigators. [ 63 ] When the interview resumed after lunch, the Accused and Insp Ravenhill discussed the Accused’s personal safety: MUSILA: (unintelligible) Could Robert hurt me from this point on? RAVENHILL: Can her hurt you?

MUSILA: Could he? RAVENHILL: I don’t know. Do you think he can? MUSILA: Yeah. RAVENHILL: Um, I guess in part, it depends where you are. MUSILA: Exactly RAVENHILL: When, uh. When we’re done, Beryl, I think its really important that we have, uh, a discussion about planning for your safety, moving forward. Okay? MUSILA: Yeah. RAVENHILL: So let’s have a long discussion about your safety, uh, when we’re done, okay? MUSILA: Okay RAVENHILL: Okay? And we can. We can talk about different avenues. Um, we can talk about a lot of what ifs. Um, different ideas, uh, options that are available for you.

MUSILA: Okay. [ 64 ] The Accused later made the following comments about Rafters: MUSILA: Because it doesn’t. I’m not scared. It doesn’t matter anymore. I don’t care who gets, he gets after me. I mean. It’s come to this. It’s just like I. His threats don’t matter anymore. He can’t stop me from talking now. RAVENHILL: And that’s the first question, like when I came back in the room, that. The first question you asked me was whether or not he could hurt you. MUSILA: He could hurt me, I know. But it’s just. I’m dying anyways. I don’t care. I just don’t care. RAVENHILL: Okay. MUSILA: What he does anymore.

It doesn’t affect-fect me. .... MUSILA: I don’t. I’m not worried about him coming after me anymore. Okay, but I’m[sic] refu-, I refuse. He’s done so much and I refuse to. RAVENHILL: Okay. MUSILA: Please. Oh my God. I just want him to go away. He’s just, hu-, made my life completely upside down. [ 65 ] During the afternoon portion of the interview Insp Ravenhill offered to return the Accused to her cell for a rest. This occurred about 2 hours and 57 minutes after the interview had originally started. The Accused declined: RAVEN HILL: Okay. What I'm going to do, um, Beryl, I'm going to give you a little break.

MUSI LA: I don't want a break, I just want this to just, uh, just move forward (unintelligible). RAVEN HILL: Okay. Well I'd like to offer you a break, to go and lay down for a bit. Do you want to do that? 'Cause you do look tired. And I know that this is draining and I get that. MUSI LA: I don't. I'm not worried about him coming after me anymore. Okay, but l'm[sic] refu-, I refuse. He's done so much and I refuse to. RAVENHILL: Okay. MUSILA: Please. Oh my God. I just want him to go away. He's just, hu-, made my life completely upside down. RAVEN HILL: Yes. I agree with you a hundred percent.

That's exactly what's he done to your life. But I just want to make it clear to you, Beryl, um. I know this has been draining. This has been exhausting and I just, we just gave you some lunch. If you're tired and you need a break, then I want you to go back to your cell and have a little break. Um, if you're not tired and you want to get this over with then like please do, um, you know we can get it over with but I need you to ... MUSILA: I not. I'm (unintelligible) ... RAVENHILL: I need you to sit up and, you know, look alive and we can ... MUSILA: I. .. RAVEN HILL: .. .finish this, but if you don't want to.

If you feel like you need a break, I want to offer you that break. Okay?

MUSILA: Mm-mm bored. RAVEN HILL: This is the point where I'm making this part up to you. Okay. So, we'll clean the eye (phonetic) and tell me what do you want to do right now? MUSILA: [mumbles] I want to move forward. [ 66 ] The interview continued until 1507 hrs when Insp Ravenhill took a brief recess. At 1511 hrs, Insp Ravenhill returned and shortly thereafter asked the Accused if she was “okay”: MUSILA: I’m okay. I’m just, well... RAVENHILL: Okay. MUSILA: ...I’m just kind of like okay RAVENHILL: Yeah? MUSILA: Um, is it (unintelligible) of fear, obviously. RAVENHILL: Mm hmm.

MUSILA: I don’t know, I feel like I’m always gonna be scared of this individual. Is it (unintelligible) fear, like well it’s there. RAVENHILL: It’s there, yeah. And it’s...that makes sense, like I can understand that why you would be concerned. I know if I ...I get that a hundred percent. Um, uh, have you been treated okay by police? MUSILA: Yeh, I’m just... RAVENHILL: I mean, despite the fact that you don’t want to be here. MUSILA: I just want...I just (unintelligible). RAVENHILL: Yeah, you just want this all to be over and go away. Right?

MUSILA: I just want to...the help I need from everybody I was working with, I didn’t see this one coming. I just blame myself so much for everything that’s happened. It seems like a really bad dream. It’s so surreal. It’s just like it’s just not happening. [ 67 ] As the interview neared conclusion, the Accused expressed concern about ensuring the safety of her father and her children who were in her father’s care. Insp Ravenhill assured her “we’ll make sure that, uh, he has options if he has safety concerns.” D.

The Law [ 68 ] In R v Tessier , 2022 SCC 35 [ Tessier ] the Court considered how the absence of a caution during police questioning at the pre- detention phase of a criminal investigation affects voluntariness of an Accused’s statement. The Court, in doing so, summarized the law relating to the modern confessions rule at para 68: A confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness ( Oickle , at para. 68). The Crown bears the persuasive or legal burden of proving voluntariness beyond a reasonable doubt.

The inquiry is to be contextual and fact-specific, requiring a trial judge to weigh the relevant factors of the particular case ( Singh , at para. 35; R. v. Kelly , 2019 NLCA 23 , 374 C.C.C. (3d) 360 , at para. 40 ). It involves consideration of “the making of threats or promises, oppression, the operating mind doctrine and police trickery” ( R. v. Spencer , 2007 SCC 11 , [2007] 1 S.C.R. 500 , at para. 12 ).

These factors are not a checklist: ultimately, a trial judge must determine, based on the whole context of the case, whether the statements made by an accused were reliable and whether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to a person in authority (Parent, at pp. 26-27; Vauclair and Desjardins, at No. 38.28). [ 69 ] The Court at para. 75 refused to make the absence of a police caution determinative of voluntariness, but added: That said, there is no doubt that a caution can contribute to ensuring that an investigation is conducted fairly, especially where a suspect is detained and in a state more prone to making involuntary statements.

In providing her guidance that a suspect should receive a caution, Charron J. in Singh was careful to note that a person’s situation changes after the moment of detention, which is why the caution is seen as necessary in those circumstances. As Charron J. explained, state authorities control the detainee who is in a more vulnerable position and cannot walk away. The fact of detention alone may cause a person to feel compelled to make a statement (para. 32; see Grant , at paras. 22 and 39 ; Hebert , at pp. 179-80).

The caution is required to attenuate the informational deficit in the face of heightened risk and vulnerability. [ 70 ] The issue of voluntariness is to be determined on an objective basis. However, that inquiry must account for, and be: sensitive to the particularities of the individual suspect.

For example, White, supra, at p. 120, notes the following: False confessions are particularly likely when the police interrogate particular types of suspects, including suspects who are especially vulnerable as a result of their background, special characteristics, or situation, suspects who have compliant personalities and, in rare

instances, suspects whose personalities make them prone to accept and believe police suggestions made during the course of aninvestigation (R v Oikle, [2000] 2 S.C.R. at para. 42). [71] An exploration of police threats or promises, oppression, the operating mind doctrine, and police trickery is necessary todetermine voluntariness.

In conducting that analysis: Threats or promises, oppression and the operating mind doctrine are to be considered together and “should not be understood as adiscrete inquiry completely divorced from the rest of the confessions rule” (Oickle, at para. 63) On the other hand, the use of “police…trickery” to obtain a confession “is a distinct inquiry…[given that] its more specific objective is maintaining the integrity of the CriminalJustice System” (para. 65), R v Spencer, [2007] 1 SCR at para. 12. [72] The contextual, case-specific nature of the voluntariness inquiry means these factors are not an exhaustive list of factorsinforming voluntariness.

There is no suggestion from counsel or the evidence in this case that any other factors require consideration.Although the mandated factors will be separately addressed in this ruling, I am aware of my obligation to consider them collectively indetermining the overarching issue of voluntariness. 1.

Operating Mind [73] The legal test for determining whether an Accused had an operating mind is articulated in R v Whittle (SCC),[1994] 2 SCR 914 [Whittle]at p 939: The operating mind test, therefore, requires that the accused possess a limited degree of cognitive ability to understand what he or she issaying and to comprehend that the evidence may be used in proceedings against the accused. Indeed it would be hard to imagine what anoperating mind is if it does not possess this limited amount of cognitive ability.

In determining the requisite capacity to make an activechoice, the relevant test is: Did the accused possess an operating mind? It goes no further and no inquiry is necessary as to whether theaccused is capable of making a good or wise choice or one that is in his or her interest. [74] While a low bar, it is important to note that this “limited mental component...” includes the ability to understand a caution andthat the evidence can be used against the Accused: Whittle at p 941. 2.

Threats or Promises [75] In R v Hermkens, 2021 ABQB 885 [Hermkens] at para 43 Justice Renke summarized the guiding principles relating tothreats or promises: “Inducements” encompass threats of harm or promises of benefit. In traditional language, an involuntary statement may be induced byfear of prejudice or hope of advantage. According to Justice Iacobucci in Oickle at para 57, “[t]he most important consideration in allcases 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.” Seealso Fernandes at para 27.

An inducement is improper only if, in all the circumstances, by itself or with other factors, the inducement,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 ABCA311 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. 3. Atmosphere of Oppression [76] In Oickle at para 58 the Court recognized that: oppression clearly has the potential to produce false confessions.

If the police create conditions distasteful enough, it should be nosurprise that the suspect would make a stress-compliant confession to escape those conditions.

Alternately, oppressive circumstancescould overbear the suspect’s will to the point that he or she comes to doubt his or her own memory, believes the relentless accusationsmade by the police, and gives an induced confession. [77] At para 56 the Court flagged some factors that can create an oppressive atmosphere including: depriving the suspect of food, clothing, water, sleep or medical attention; denying access to counsel; and excessively aggressiveintimidating questioning for a prolonged period of time. [78] As observed in Hermkens at paras 49-51: Again, the issue is whether the will of the individual was overborne: Alas at para 43.

Mere discomfort, privation, or pressure will notnecessarily, by themselves, raise a doubt as to voluntariness. For oppression to be relevant to the voluntariness assessment, the cause of the oppression must be State conduct. Again, so long as anindividual had an operating mind, if the individual irrationally or without grounds believed that circumstances were oppressive and madea statement to police based on perceived oppression, the individual’s statement will be voluntary. Involuntariness does not turn on “self-generated” beliefs or “inner compulsion:” Alas at para 41; Fernandes at para 36, 37; Whittle at 946.

Whether or not oppression occurred depends on all of the circumstances and on context. Justice Proulx wrote in Otis at para 54 that .... The analysis of the dynamics existing between the investigator and the subject must always be reviewed on a case-by-case basis.What is abusive in the present matter might not be with respect to another individual. The power of resistance to police persuasion will

vary according to circumstances and individuals .... 4. Police Trickery [ 79 ] This doctrine requires a distinct inquiry: While it is still related to voluntariness, its more specific objective is maintaining the integrity of the Criminal Justice System: Oickle at para 65. [ 80 ] Even if otherwise voluntary, the statement my be ruled involuntary because of police conduct that “shocks the community”: Oickle at para 67.

That onerous threshold reflects the Court’s concern to “not unduly limit police discretion.” It also recognizes that: [T]he investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensberry Rules. ( R v Oikle, paras 65-66) E. Position of the Parties [ 81 ] The Crown argues voluntariness of the Accused’s post-arrest statement to police has been proven beyond a reasonable doubt.

In doing so, the Crown emphasizes the Accused consistently chose to speak with police when confronted with an informed choice to engage or disengage. [ 82 ] Defence counsel argues the Crown has not discharged its burden of proving voluntariness of the Accused’s post-arrest statement. He described the Accused as “extremely vulnerable.” Defence counsel alleges police used trickery and unlawfully employed the Accused’s fear of Rafters as an inducement and to create an oppressive atmosphere. According to Defence counsel this “fear forces” the Accused to continue talking. F. Analysis 1.

Operating Mind [ 83 ] The Accused gave two separate statements to police the day before the post-arrest statement occurred. [ 84 ] The initial contact was by telephone. In that conversation the Accused readily provided information to police about her last contact with the Deceased. [ 85 ] The second statement occurred about 12 hours later at the police detachment. The Accused (and Rafters) willingly attended in response to a police request for a missing person interview.

During that interview police twice cautioned the Accused that her statement could be used in evidence against her, including in any murder trial. The Accused unequivocally stated she understood. The Accused also was informed and again clearly understood she was attending voluntarily and was free to leave at any point during the interview. [ 86 ] The Accused chose to provide both statements to police. Indeed, her ready participation and attendance suggests she was eager to do so. The Accused’s coherent comments indicate she understood what she was saying.

The police cautions provided in the pre-arrest interview were also clearly comprehended by the Accused. [ 87 ] Following her arrest for murder, the Accused was again cautioned by police. This fulsome caution was understood by the Accused. It was supplemented by a phone conversation with counsel and an almost one hour in-person meeting with counsel that police generously approved.

Counsel obviously instructed the Accused to exercise her right to silence given the Accused’s comment to police immediately following the counsel meeting that “she told me not to talk anymore.” [ 88 ] In total, the Accused was properly cautioned by two different officers on two different occasions and received related legal advice during extended communication with counsel before the post-arrest interview occurred.

This background informs the issue of whether the Accused had an operating mind during the post-arrest interview with Insp Ravenhill. [ 89 ] At the very outset of the post-arrest interview, yet another caution was provided by yet another officer. Again, the Accused unequivocally acknowledged she understood she was not obliged to speak with police but if she chose to do so her statements may be used as evidence against her.

It is clear the Accused fully understood her legal rights before responding to Insp Ravenhill’s questions. [ 90 ] The actual content of the interview further supports a finding that the operating mind threshold is satisfied. Despite being occasionally emotional, the Accused was articulate and properly responsive throughout the interview in communicating with Insp Ravenhill. [ 91 ] Under all the circumstances, the Accused was equipped with and understood her legal rights and potential consequences of exercising her personal choice.

Despite police cautions and while arguably contrary to her best interests, the Accused consistently and freely chose to speak with police. Additionally, there is no basis to suggest the Accused did not have the cognitive ability to understand what she was saying during this interview. Indeed, as the interview progressed, her answers became more expansive. [ 92 ] In assessing all of the evidence, including the particularities of the Accused, it is evident that, in speaking with police, including post-arrest, she possessed an operating mind.

2. Threats and Promises [ 93 ] I accept the unanimous evidence of police officers that they did not advance any threats or promises to the Accused during their respective interactions with her. I also find that police did not use the Accused’s fear of Rafters to induce her post-arrest statement. The evidence does not support Defence counsel’s submission that Insp Ravenhill used the Accused’s articulated fear of Rafters as a threat or promise to encourage the continuation of her statement. There is no evidence that police used Rafters as a quid pro quo to activate conversation.

Even if used as such, it does not raise a reasonable doubt about whether the will of the Accused was overborne. [ 94 ] It is notable that the Accused, not police, introduced Rafters into the conversation. Insp Ravenhill properly pursued related details about Rafters’ role in the murder as alleged by the Accused. Insp Ravenhill had limited information about the investigation and was simply discharging her duty to obtain information in an ongoing investigation about a person allegedly involved in the murder.

Advising the Accused about a concurrent interview of Rafters, especially without specifics of his statement, was an acceptable police tactic. It did not constitute a subtle threat. Rather, it invited the Accused to be truthful, given concerns expressed to the Accused about credibility after she changed her statement about her role in the murder. A quid pro quo offer did not attach to this police tactic.

Even assuming existence of a quid pro quo , there is no evidence it had a coercive effect upon the Accused. [ 95 ] There is also no evidence that police used the Accused’s fear of Rafters as an inducement for her to continue speaking with police. After the Accused described Rafters’ violent, exploitive behaviour and expressed concern about her ongoing safety, Insp Ravenhill reassured the Accused that a detailed discussion about her personal safety would occur.

As the interview concluded, Insp Ravenhill similarly offered to assist the Accused’s father in addressing any family safety issues concerning Rafters. [ 96 ] Further, it is revealing that after raising safety concerns, the Accused twice stated she was no longer concerned about retribution from Rafters. While then adding that fear would always exist, the Accused also described herself as “okay.” [ 97 ] In assessing the totality of evidence, I conclude beyond a reasonable doubt that police did not employ either threats or promises during the post arrest interview of the Accused. 3.

Atmosphere of Oppression [ 98 ] The Accused received proper and timely nutrition (food and water) while in custody and in the interview itself. The interview was arranged to occur on the day following the Accused’s arrest to minimize fatigue. This permitted the Accused to have about 11 hours of sleep immediately beforehand. [ 99 ] The post-arrest interview was conducted in acceptable physical surroundings. The interview (including breaks) lasted 4 hours and 45 minutes. It was not a prolonged period of time.

Tellingly, the Accused insisted the interview continue during the afternoon despite Insp Ravenhill inviting and suggesting the Accused take a rest recess. [ 100 ] The questioning of Insp Ravenhill was respectful, conversational, and calm in tone. Police questioning, while steadfast and occasionally pointed, never approached aggression or intimidation. Insp Ravenhill presented as compassionate and sensitive to the Accused’s personal history and current predicament. Several instances of briefly touching the Accused were consistent with that approach.

During the entirety of questioning both participants were seated and positioned several feet from each other near the table end. Their physical positioning placed them on a level playing field. [ 101 ] Defence counsel concedes that police met the “bare needs” of the Accused but argues police failed to address her mental health needs. I disagree. While police did not facilitate access to a mental health professional, such access is not a legal right.

In any event, the evidence does not ground an argument that the Accused was experiencing concerning mental health issues requiring medication or medical care while in custody. Her conduct in the actual interview contained no hint of compromising mental health concerns. [ 102 ] Defence counsel accepts that “some voluntariness” attaches to the initial portion of the interview. However, he argues the interview became oppressive after approximately one hour. At that point, the Accused claimed she was “exhausted” and was experiencing a “breakdown.” According to Defence counsel, her statements “I just can’t.

I just can’t,” clearly indicated she no longer wished to speak with police. An oppressive atmosphere resulted because Insp Ravenhill did not suspend the interview and introduced the prospect of Rafter’s police statements knowing the Accused had been in an “oppressive” relationship with him. [ 103 ] The evidence does not support this argument. The Accused continued to respond to police investigative questions after she cited exhaustion. Very shortly after the Accused made these comments she became more expressive and detailed in her answers.

This pattern indicates the Accused was capable of and willing to continue participating in the interview. It also defeats the argument that she no longer wished to speak with police. [ 104 ] In considering the totality of evidence I conclude there is no evidence the post-arrest interview was conducted in an atmosphere of oppression. Rather, police made concerted efforts to satisfy the Accused’s legitimate needs both before and during the interview. Any discomfort experienced by the Accused (who chose to continue the interview) certainly was not a product of “utterly intolerable” circumstances. 4.

Police Trickery [ 105 ] My earlier comments regarding Insp Ravenhill’s questioning surrounding Rafters also apply here. Exploration of that topic also does not constitute police trickery. In conducting investigations police discretion must not be “unduly fettered.” The resulting standard requiring the impugned police conduct be “so appalling as to shock the community” is onerous. That test is not met in this case. 5. Characteristics of the Accused

[ 106 ] Defence counsel argues the Accused, for various reasons, was extremely vulnerable to police questioning during the post-arrest interview. He describes the Accused as “one, small black woman” and cites mental health and drug addiction issues. Defence counsel also points to police knowledge of the Accused’s criminal record and her “terror” of Rafters.

He suggests police advantaged her vulnerability to exert a continuum of control over the Accused which worked to undermine her free will. [ 107 ] I have previously addressed some of these itemized characteristics in discussing issues relating to operating mind, police inducement and trickery and oppression. Those findings also apply to my assessment of the particular characteristics of this Accused. They are augmented by the following comments.

a) Police Presence [ 108 ] The presence of multiple police officers during the Accused’s arrest was appropriate given various police officers were tasked with assignments in conducting an ongoing investigation into a murder. Additionally, only one officer had primary contact with the Accused in providing legal rights. The undercover officer and Insp Ravenhill (both female) also singularly conducted their assignments. All officers acted considerately and respectfully in their interaction with the Accused. This included granting the Accused’s request to have an identified female officer (Cst.

Penny) accompany her enroute to the detachment following arrest. Police conduct negates any alleged issues about unlawful coercion.

b) Member of a Racial Minority [ 109 ] In R v Le , 2019 SCC 34 [ Le ] the Court addressed the place and purpose of race as a consideration when dealing with police engagement.

In conducting a detention analysis, courts should consider: the larger, historic, and social context of race relations between the police and the various racial groups and individuals in our society: Le at para 75. [ 110 ] Even in the absence of testimony on this issue, courts must be alive to the potential significance of this consideration: Le at para 98 and 106. [ 111 ] In Le, at para 72 the Court commented upon the potential impact of racial context in assessing true choice when confronted with police direction: An important consideration when assessing when a detention occurred is that Mr.

Le is a member of a racialized community in Canada. Binnie J. in Grant found that “visible minorities . . . may, because of their background and experience, feel especially unable to disregard police directions, and feel that assertion of their right to walk away will itself be taken as evasive” (paras. 154-55 and 169 (per Binnie J., concurring); see also, Therens , at p. 644 (per Le Dain J, dissenting) on whether citizens truly have a “choice” to obey the police’s commands). [ 112 ] At para 86 the Court observed that: The context of race relations...is neither dispositive of when Mr.

Le was detained, nor mere background information. The race relations context is one consideration, among many, aiding in the analysis and

interpretation of events that are crucial to this appeal. [ 113 ] In this case, the Accused is black. She is a member of a racialized community. Mindful of the Supreme Court of Canada’s direction, I will consider race relations between African Canadians and the police as described by that Court and whether that context may have impacted the Accused’s decision to speak with police. [ 114 ] The evidence demonstrates the Accused’s ongoing interest in speaking to police.

Indeed, during the arrest process police were required to intervene to prevent the Accused from volunteering further information about the murder before she had a chance to speak to counsel. The Accused was cautioned on multiple occasions by different officers and clearly understood those cautions. The Accused actively participated in the post-arrest interview. All officers who interacted with the Accused during and following the arrest were white.

However any concerns voiced by the Accused while in police custody, including during the post-arrest statement, did not raise any racial or gender issues. [ 115 ] There is limited testimonial evidence about the Accused’s prior experience with police. Her criminal record proves she had prior interaction with police. However, there is no evidence about the nature of the Accused’s conviction(

s) or the type of engagement she had with police that resulted in those conviction(s). Consequently, I do not draw any conclusions about how or if, the Accused’s particular experience impacted her decision to speak with police in this case. [ 116 ] The trial evidence dispels any concern this Accused, as a result of her racial background and experience was unable to properly assert her right to silence. Her perception of police and behaviour in this case were not influenced by those factors.

It does not support an argument that she felt unable to accept multiple police caution directions or that failure to speak with police would be perceived as evasive. Her racialized status did not make her susceptible to police questioning. The Accused was fully aware of and freely exercised a true choice in providing her statements to police. [ 117 ] The race relations context, whether addressed as a systemic or individual experience, does not raise any concern that the Accused’s statements to police were a product of her free will.

c) Mental Health Issues [ 118 ] Following arrest, the Accused communicated to police various mental health issues requiring psychiatric care and that she had

not recently taken related prescribed medication. However, during various police “wellness checks” prior to the post-arrest interview police observed no concerns. This is consistent with the Accused’s initial refusal of medical aid and her self-assessment that she was not “sick.” That self-assessment was later confirmed by paramedics who deemed her “fit for incarceration.” [ 119 ] During the post-arrest interview the Accused described herself as a “piece of shit,” “drained,” “mentally exhausted,” “feeling really faint,” and experiencing “a breakdown.” She cried on multiple occasions.

However, at the outset of the interview she agreed her medical needs had been satisfied and that her current health state was “mostly just the stress getting to you.” [ 120 ] The behaviour of the Accused both before and during the post-arrest interview does not support an argument that she was experiencing active mental health issues. This was confirmed by the Accused and is consistent with observations of police. Further, paramedics, while alert to her articulated mental health issues, did not raise any such concerns with police.

d) Drug and Alcohol Use [ 121 ] Police were aware of the Accused’s post-arrest statements that she used various drugs, including methamphetamine, on a regular basis. They were also aware she had consumed alcohol during the 24 hours immediately before arrest. [ 122 ] The post-arrest interview started just over 11 hours after the Accused’s arrest. During that interview the Accused presented as lucid and coherent. There is no suggestion of present impairment or addiction issues.

e) Criminal Record [ 123 ] There is no evidentiary basis supporting the suggestion that the Accused’s criminal record made her particularly vulnerable. The record itself was described as “minor” by Defence counsel. Additionally, that criminal record was never discussed by either police or the Accused during recorded interactions before or during the post-arrest interview. [ 124 ] In the totality of circumstances, I conclude this Accused was not particularly vulnerable as a result of her background, special characteristics, or situation. Instead, this 28 year old Accused presented as mature, intelligent, and purposeful in her statements to police.

f) Conclusion [ 125 ] In conclusion, the three statements made by the Accused to police satisfy the intertwined principles of reliability and fairness animating the modern confessions rule. The reliability of the post-arrest statement is exampled by the absence of oppression and the presence of an operating mind. The fairness rationale is satisfied by the absence of police trickery and the Accused’s meaningful, informed, free, and active choice to continually speak with police. The post-arrest statement raises no concerns of a false confession.

Rather, from the Accused’s initial contact with police over the phone through to her post-arrest interview, the Accused consistently chose to speak with police. She elected to make herself available for the initial phone call with police and for her pre-arrest interview. That pattern is bookended by her determination to continue her post-arrest interview despite police suggestion of an afternoon respite. The Accused’s pre- and post-arrest statements were made with positive awareness of the consequences attaching to her decision to speak with police.

Considering these factors collectively and recognizing the particular characteristics of this Accused, it is clear the Accused’s statements to police were a product of her free will. [ 126 ] As such, the Crown has satisfied its “heavy burden” of proving voluntariness of the Accused’s statements to police beyond a reasonable doubt. III. The Charter Application [ 127 ] Defence counsel argues the Accused was unlawfully detained because she was not brought before a justice of the peace within 24 hours of arrest in accordance with s 503(1) of the Criminal Code .

Defence counsel submits that any unlawful detention is arbitrary, and therefore a breach of the Accused’s s 9 Charter rights automatically follows. A stay of proceedings or, alternatively, exclusion of the Accused’s statements to police are requested in remedy. [ 128 ] The Crown argues non-compliance with s 503(1) of the Criminal Code does not necessarily mean the Accused’s detention was arbitrary. Moreover, the Accused was not entitled to a bail hearing before a justice of the peace as that hearing was statutorily required to be conducted by a Superior Court Justice.

Even assuming a s 9 Charter breach occurred, it was merely technical. The Crown submits no remedy should flow. [ 129 ] An Agreed Statement of Facts and viva voce testimony of police officers were tendered as evidence in this application. The Agreed Statement of Facts outlines processing of the Accused’s bail package by the “Bail Office.” That document also explains the procedural change for conducting bail hearings instituted May 10, 2017 and provides statistics on hearing timeliness through until October 23, 2022.

Witness testimony of police activity from the Accused’s arrest to completion of her post-arrest statement as reviewed in my ruling on voluntariness is also adopted in determining this Charter application. That evidence was supplemented by additional testimony from Sgt Lieng describing police action after the Accused’s post-arrest statement concluded. The police witness testimony on this Charter application for reasons earlier advanced is accepted. That also extends to the testimony of Sgt. Lieng in this application. A. Timeline of Events [ 130 ] On July 9, 2017 at 1750 hrs, the Accused was arrested by Sgt McGee.

At that point the clock started, and the Accused was required to be brought before a Justice of the Peace for a bail hearing appearance within the next 24 hours.

[ 131 ] The post-arrest interview concluded on July 10, 2017 at 1534 hrs. While Insp Ravenhill was interviewing the Accused, Sgt Lieng, the lead investigator, was communicating with an advisory Crown. [ 132 ] The police command triangle, consisting of team commander Staff Sgt Quail, file coordinator Cpl Harnish, and lead investigator Sgt Lieng held a briefing immediately after the post-arrest interview. That briefing concluded at 1548 hrs. [ 133 ] At 1621 hrs, Sgt Lieng emailed the advisory Crown stating police were charging the Accused with murder and indignity to human remains.

He also requested the Crown contact him with any related questions. There is no evidence on whether the Crown responded to that email.

Sgt Lieng prepared the bail package after that email was sent. [ 134 ] The bail package contained the following documents: 1) A prosecutor information sheet (PIS) containing details of the investigation to that point, the charges being considered, and information about the Accused; 2) The Accused’s criminal record; 3) The Information for swearing; 4) A cover sheet indicating the package contents. [ 135 ] Before preparing the PIS, Sgt Lieng listened to audio recordings of the interviews and collected information from other officers. Sgt Lieng also drafted the Information and completed the cover sheet.

He described the unfolding investigative process as “very fast and fluid.” [ 136 ] Cpl Harnish assisted in compiling the bail package by retrieving the Accused’s criminal record from the CPIC database. In generally describing that day Cpl Harnish stated: Anytime somebody came back with information I was either scanning it, entering it into the computer, entering it into the...hard copy box. At this point, there was a lot going on...” [ 137 ] All bail package documents were printed, scanned into a computer, and emailed to the Bail Office by Sgt Lieng at 1740 hrs.

At 1743 hrs, Sgt Lieng received a confirmatory auto-reply email from the Bail Office. [ 138 ] Between 1750 hrs and 1843 hrs, the Bail Office prepared the Accused’s matter for hearing. This involved a review of the bail package by a litigation assistant, uploading the bail package, and forwarding it to a Crown prosecutor for review. The litigation assistant flagged the Accused’s matter as being “Over 24 hrs.” [ 139 ] At 1843 hrs, after reviewing the bail package, the Crown prosecutor advised the Hearing Office the matter was “Ready for Hearing.” The Accused’s matter was added to a virtual docket.

The presiding Justice of the Peace determines the timing and order in which docket matters are heard. [ 140 ] At 1937 hrs, Cpl Harnish phoned the Bail Office and requested the Accused’s matter be moved to the top of the queue. He was “concerned” as more than 24 hours had elapsed without a bail appearance. [ 141 ] The Accused’s bail appearance started at 2002 hrs and concluded at 2016 hrs. During that bail appearance, the hearing was adjourned. The Accused has not yet made an application for release. [ 142 ] This was Sgt Lieng’s first experience with the bail procedural changes instituted on May 10, 2017.

Prior to that date, police officers communicated directly with the Hearing Office. Under the new regime, police provided their bail packages to the Bail Office. [ 143 ] The Agreed Statement of Facts contains monthly bail hearing statistics for Alberta from June 2017 to October 2022. The data tracks the total number of bail files commenced and the number of those files violating the 24-hour rule on a monthly basis. This latter number is also expressed in percentage form. The statistics reveal that the number and percentage of files heard outside of 24-hours has steadily decreased.

In the month preceding this application (Oct, 2022) 13 of 2,108 bail hearings (0.6%) were not commenced in a timely fashion. B. The Law : Arbitrary Detention [ 144 ] Section 503(1) of the Criminal Code mandates that a person who has been arrested and not released by a police officer shall: ...cause the person to be taken before a justice to be dealt with according to law (

a) if a justice is available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period; and (

b) if a justice is not available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice as soon as possible. [ 145 ] Section 515(11) of the Criminal Code codifies the limited powers of a “justice” when a person charged with a Criminal Code s 469 offence appears on the bail docket:

515(11) Where an accused who is charged with an offence mentioned in

section 469 is taken before a justice, the justice shall order thatthe accused be detained in custody until he is dealt with according to law and shall issue a warrant in Form 8 for the committal of theaccused. [146] Murder is an enumerated offence under s 469 of the Criminal Code. Accordingly, a Superior Court of Criminal Jurisdiction hasexclusive authority to try that offence. This includes conducting bail hearings. [147] Section 503(1) of the Criminal Code is not solely designed to ensure an accused has the opportunity to secure release.

In R vDavidson, 2004 ABCA 337 at para 24 the Court observed: The law on bail makes it clear that if an accused is not released by the peace officer or the officer in charge, there is a duty to bring theaccused into the judicial process without delay.

This is to ensure that a person is not held incommunicado: R v W(E) (2002), 2002 NFCA49 , 168 CCC (3d) 38 (Nfld CA); R v Simpson (1994), (NL CA), 88 CCC (3d) 377 (Nfld CA); appealallowed on an unrelated point, (SCC), [1995] 1 SCR 449; R v Tam (1995), (BC CA), 100 CCC(3d) 196 (BCCA); R v Koszulap (1974), (ON CA), 20 CCC (2d) 193 (Ont CA), Lewis v Tims, [1952] AC 676 (HL). Itis a fundamental cornerstone of criminal procedure intended to ensure that the arrest and detention are brought to an impartial judicialofficer as soon as possible.

This right is clearly enshrined in ss 7 and 9 of the Charter. [148] In R v Storrey, (SCC), [1990] 1 SCR 241 at p 256 the Court, cited R v Koszulap, (1974), (ON CA), 27 CRNS 226 at p 234 where: Martin J.A. of the Ontario Court of Appeal carefully noted that s. 454(1) [a predecessor to s. 503(1)] does not give a police officer "anunqualified right to keep such person in custody for the purposes of investigation for a period of 24 hours before taking such personbefore a justice". Instead, he observed, the

section states that the police must take the person before a justice without unreasonable delayand that the 24 hours is simply the outer limit of the time span. [149]

Section 9 of the Charter reads “Everyone has the right not to be arbitrarily detained or imprisoned.” In R v Grant, 2009 SCC 32at para 54 the Court reasserted earlier comments regarding s 9: As this Court has stated: “This guarantee expresses one of the most fundamental norms of the rule of law. The state may not detainarbitrarily, but only in accordance with the law” (Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 SCR 350, atpara 88).

Section 9 serves to protect individual liberty against unlawful state interference. A lawful detention is not arbitrary within themeaning of s 9 (Mann, at para 20), unless the law authorizing the detention is itself arbitrary. Conversely, a detention not authorized bylaw is arbitrary and violates s 9. [150] At para 55 the Court stated: Earlier suggestions that an unlawful detention was not necessarily arbitrary (see R v Duguay (1985), (ON CA), 18CCC (3d) 289 (Ont CA)) have been overtaken by Mann, in which this Court confirmed the existence of a common law police power ofinvestigative detention.

The concern in the earlier cases was that an arrest made on grounds falling just short of the “reasonable andprobable grounds” required for arrest should not automatically be considered arbitrary in the sense of being baseless or capricious. Mann,in confirming that a brief investigative detention based on “reasonable suspicion” was lawful, implicitly held that a detention in theabsence of at least reasonable suspicion is unlawful and therefore arbitrary within s 9. [151] Crown counsel argues this point remains unsettled.

Particular reliance is placed upon R v Vuozzo, 2013 ABCA 130 at para 29 –30, leave to appeal dismissed (SCC) and R v Vassell, 2015 ABCA 409, rev’d on other grounds 2016 SCC 26 atparas 29 – 30. [152] In R v Campbell, 2022 ABKB 663 at para 84, Whitling J noted the reasoning in Grant has received academic endorsement. He referenced Penney et al, Criminal Procedure in Canada, 3rd ed. (LexisNexis, 2022) 5.44, which states: If police fail to comply with this requirement [CC s 503(1)] the resulting detention will be unlawful. As the Court held in R v Grant, anunlawful detention is necessarily arbitrary and violates

section 9 of the Charter. Earlier decisions finding that section 503(1) violationsare not always arbitrary under

section 9 are therefore no longer good law: failing to comply with this provision automatically violatessection 9. If police have a good reason for missing the deadline (despite a justice being available) this will only be relevant in decidingon the appropriate remedy for the violation under

section 24 of the Charter. [footnote numbering omitted] [153] In a footnote the author specifically cites Vassell as one case which is “no longer good law.” In my view that characterizationextends to the Court of Appeals’ earlier decision in Vuozzo.

Although both cases were released subsequent to Grant and appealed to theSupreme Court of Canada, the Supreme Court did not revisit the Alberta Court of Appeal’s direction that not all unlawful detentions arearbitrary. [154] More recently, the Grant analysis was endorsed in Le at para 124: Where a detention is established, a court must consider whether the detention is arbitrary.

This Court’s decision in Grant providesguidance (at paras 54-56) I note that the referenced paragraphs from Grant expressly direct that an unlawful detention is resultingly arbitrary. [155] Accordingly, I am bound by the clear language of Grant on this issue. As such, if I find the Accused’s detention was unlawfuldue to non-compliance with s 503(1) of the Criminal Code, I must also find the Accused was arbitrarily detained.

C. Analysis: Arbitrary Detention [156] The 24-hour window for bringing the Accused before a Justice for a bail hearing expired on July 10, 2017 at 1750 hrs.Placement on the bail hearing docket exceeded that time limit by 57 minutes. Commencement of the actual hearing occurred 2 hours and12 minutes past the statutory deadline. [157] The evidence shows that the Accused was brought before a Justice of the Peace without unreasonable delay. Following arrest,police completed a multitude of necessary intake tasks in a timely and reasonable manner.

The decision to reschedule the post-arreststatement was based solely upon police interest in ensuring the Accused was properly rested to participate in that interview. Once thepost-arrest interview was concluded, police worked diligently to ensure that the Accused’s bail package was prepared in a timelymanner. Police did not attempt to collect any further evidence from the Accused after the post-arrest interview.

There is no evidence tosuggest police were dismissive of the statutory requirement to have the Accused appear before a Justice within 24 hours of arrest. [158] However, the Accused was not brought before a Justice in compliance with s 503(1) of the Criminal Code. Therefore, theAccused’s detention was arbitrary. A breach of the Accused’s s 9 Charter right has been established on a balance of probabilities. [159] Sgt Lieng industriously prepared the Accused’s bail package. This was an ongoing, evolving, and serious investigationoccurring in a compressed period of time.

As the lead investigator, Sgt Lieng was the most appropriate person to prepare the bail packageas he was receiving all the information about the investigation. While nominal assistance was received from Cpl Harnish, the leadinvestigator responsibilities of Sgt Lieng are consistent with the necessity to have one officer prepare the bail package. In theory, someportions of the bail package could have been prepared before conclusion of the Accused’s interview. However, Sgt Lieng wascontinually and necessarily absorbing information about the investigation until he started preparing the bail package.

Incominginformation necessarily included the entirety of the post-arrest interview. In illustration, the Accused dramatically changed her morningstatement about her role in the murder when the interview resumed after lunch. There was nothing inappropriate in Sgt. Lieng’s decision(as alleged by defence counsel) to begin bail package preparation until all necessary information was available. [160] The bail package was sent to the Bail Office 23 hours and 50 minutes after the Accused was placed under arrest.

The BailOffice acted responsibly in preparing the file for the Accused’s appearance before the Justice of the Peace. In less than one hour the BailOffice uploaded the bail package, reviewed it for completeness and communicated with the Crown to prepare for hearing. D. The Law: Stay of Proceedings [161] In R v Babos, [2014] 1 SCR at para 30-31 the Court provided the analytical framework to assess the remedy of a stay ofproceedings where an abuse of process occurs: A stay of proceedings is the most drastic remedy a criminal court can order (R v Regan, 2002 SCC 12, [2002] 1 SCR 297, at para 53).

Itpermanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public isdeprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their day in court. Nonetheless, this Court has recognized that there are rare occasions —the “clearest of cases” — when a stay of proceedings for an abuseof process will be warranted (R v O’Connor, (SCC), [1995] 4 SCR 411 at para 68).

These cases generally fall into twocategories: (1) where state conduct compromises the fairness of an accused’s trial (the “main” category); and (2) where state conductcreates no threat to t

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