R. v. Obed, 2023 NLSC 128

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Obed , 2023 NLSC 128 Date : September 28, 2023 Docket : 202201G1916 His Majesty the King v. Lorraine Obed Restrictions on Publication: Pursuant to s. 648(1) of the Criminal Code , no information regarding any portion of the trial at which the jury was not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict. This publication ban expires after the jury retires for deliberation.

Pursuant to s. 486(1) , 486.31 , 486.5(1) and (9) , and 486.7 of the Criminal Code , no person shall publish in any document or broadcast or transmit in any way:

a) The contents of the application for this Order;

b) Any evidence taken, information given or submissions made at the hearing under s. 486.5;

c) Any photograph, image, depiction or description of the individual identified as UC#1, or any recording of their voice; and

d) Any other information that could identify UC#1 as a victim, witness, or justice system participant in the proceedings. Before: Justice Glen L.C. Noel Reasons for Judgment Given Orally

Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: September 11 and 15, 2023 Date of Oral Judgment: September 28, 2023

Summary: The accused, Lorraine Obed is charged with second degree murder for the death of James Corcoran. Ms. Obed refused on threeoccasions to give caution statements to the police, so the police arranged a cell plant operation. An undercover police officer was placedin the jail cell with the accused for the purpose of finding if Ms. Obed had any involvement in the death of Mr. Corcoran. The Defence applied to exclude the evidence obtained by the undercover officer on the grounds that it violated the accused’s right tosilence, contrary to s. 7 of the Charter. The Court held: 1. Ms.

Obed’s s. 7 right to silence was violated by the UC actively eliciting statements from the accused that caused Ms. Obed to makeinculpatory admissions, beginning at Tab 1, page 37 of the Book of Transcripts. 2. The portion of the cell conversation not found to be in breach of s. 7 meets threshold reliability and may be admitted as part of theCrown’s case in chief and for cross-examination of the accused, if Ms. Obed testifies in her own defence. 3. The appropriate remedy for the statements found to have infringed Ms. Obed’s s. 7 rights is exclusion of the evidence under s. 24(2). Appearances: Kellie A.

Cullihall and Paul J. Thistle Appearing on behalf of the Crown Jason A. Edwards and Sarah E. Evans Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Hebert, (SCC), [1990] 2 S.C.R. 151; R. v. Broyles, (SCC), [1991] 3S.C.R. 595; R. v. Liew, (SCC), [1999] 3 S.C.R. 227; R. v. Sparks and Rich, 2020 NSSC 128; R. v. Gillis, 2018 NSSC20; R. v. Deboo, 2015 BCSC 69; R. v. Shaw, 2017 NLTD(G) 87; R. v. Radjenovic, 2010 BCSC 1459; R. v. Grant, 2009 SCC 32; STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Canadian Charter of Rights and Freedoms,

Part I of theConstitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11

REASONS FOR JUDGMENT Noel J : INTRODUCTION [ 1 ] Lorraine Obed, the Applicant, has been charged with a single count of murder under s. 235 of the Criminal Code , R.S.C. 1985, c. C-46 , against James Corcoran, alleged to have occurred on August 26, 2021. Ms. Obed was arrested the same day and taken into police custody. [ 2 ] On September 1, 2021, the Royal Newfoundland Constabulary (RNC) obtained an authorization pursuant to s. 184.2 to surreptitiously record conversations between Ms.

Obed and an undercover police officer, “UC Nicole,” (also known as “UC#1” and referred to in these reasons as the “UC”). [ 3 ] The Application concerns what is often referred to as a “cell plant” operation. This is the situation where a state agent, in this case an undercover police officer, is placed in the same cell with a detained person for the purpose of obtaining evidence to use against that detained person. The UC was placed in the cell with Ms. Obed at the Clarenville Correctional Centre for Women on September 2 and 3, 2021. [ 4 ] Ms.

Obed is seeking to exclude the evidence obtained by the undercover officer on the grounds that it is a violation of her right to silence contrary to s. 7 of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 . [ 5 ] Ms. Obed’s trial by Judge and Jury is scheduled to commence on October 3, 2023. issues [ 6 ] The issues are: 1. Was Ms. Obed’s s. 7 right to silence violated by the conduct of the cell plant? 2. What is the appropriate remedy if Ms. Obed’s right to silence was violated? factual background [ 7 ] The police interviewed and attempted to obtain a cautioned statement from Ms.

Obed three times following her arrest. [ 8 ] The first interview was at 11:21 p.m. on August 26, 2021 (Interview 1). [ 9 ] The second interview was conducted at 2:58 a.m. on August 27, 2021 (Interview 2). [ 10 ] The third interview occurred at the Clarenville correctional centre at 10:31 a.m. on September 2, 2021 (Interview 3). [ 11 ] Ms. Obed refused to discuss the alleged event in these three interviews and repeatedly advised the interviewing officers that she would not answer any questions. [ 12 ] The RNC obtained a “one-party consent” to record oral communications between the UC and Ms. Obed.

The Authorization to Intercept Private Communications Order (ITO) forms part of the record. [ 13 ] The UC engaged Ms. Obed in conversation commencing at about 8:40 p.m. on September 2, 2021, ending sometime around 1:49 p.m. on September 3, 2021. [ 14 ] The Crown called the UC to give evidence at the hearing and two other officers who played a

part in coordinating the operation and assisting with the technical set-up. [ 15 ] A complete transcript of the recording and the USB of the recording were entered as evidence. The Undercover Officer’s Role [ 16 ] The UC is a member of the Royal Canadian Mounted Police (RCMP). She has been an undercover operator for 12 years. She has been involved in 30 plus undercover operations. This was her first and only cell plant operation.

She received training in the conduct of cell plant operations, including scenario-based situations, reviewing case law authorities, and note-taking. [ 17 ] She is familiar with the legal rules pertaining to cell plant operations. She explained her understanding of the role of an undercover operator. The undercover operator is limited to soliciting evidence from the accused by asking probative questions. The undercover cannot ask direct questions related to the offence.

Things that might come up in normal conversation is allowed as well as anything the accused has already offered without having been elicited. [ 18 ] She was asked by the Crown as to her understanding of “eliciting.” She stated direct questions relating to the offence that have

not already been told by the accused – anything specific, not already offered. [19] The cell plant operation was a joint operation with the RNC. The UC had another RCMP officer known as her “cover” forsafety support. The cover set the objectives of the operation and crafted the scenario for which the UC was in jail. The RNCinvestigators met with the UC’s cover to discuss details for setting the agenda and objectives.

The intent is for the UC not to haveknowledge of the offence. [20] The UC’s cover story was that she was a Newfoundlander returning from British Columbia and arrested on outstandingwarrants relating to her ex-boyfriend’s illegal drug activities and her association with him. [21] As part of the undercover role-playing, the UC tries to be herself as much as possible, not trying to play a character other thanthe reason why she is in custody. The demeanor is her own and not that of the character that she portrays. [22] Her objective was to find if Ms.

Obed had any involvement in the murder of James Corcoran. [23] She had minimal information about the offence other than it was a murder. She knew it was a stabbing but could not say howshe came to know this.

She stated not having details about the offence allows her to be natural in her conversations with the accused andcurious to ask questions in seeking probative information. [24] To protect the UC’s safety and to prevent her detection by the other inmates, the UC’s cover and the Captain of thecorrectional facility decided to place the facility in lockdown, whereby inmates would not be allowed to leave their cells, except on acoordinated cell basis to deliver and retrieve food at meal times. The facility had also been in lockdown the previous day, unrelated tothe cell plant operation. Governing Authorities

Section 7 and the Right to Silence [25] It is common ground between the Defence and the Crown that three Supreme Court of Canada cases: R. v. Hebert, (SCC), [1990] 2 S.C.R. 151; R. v. Broyles, (SCC), [1991] 3 S.C.R. 595; and R. v. Liew, (SCC),[1999] 3 S.C.R. 227 define, under the umbrella of the right to silence in s. 7 of the Charter, the legal boundaries of cell plant operationsand the legal test for the admissibility of any statements made to an undercover operative in the course of this type of operation. [26] The onus is on Ms. Obed to establish on a balance of probabilities that her Charter right to silence was breached. [27]

Section 7 of the Charter guarantees “everyone has the right to life, liberty and security of the person and the right not to bedeprived thereof except in accordance with the principles of fundamental justice.” [28] In Hebert, at paragraph 133, it was held that the right to silence of a detained person is contravened where an undercover agentactively elicits a statement from the accused. What Constitutes Active Elicitation? [29] The parties agree this case turns on whether the manner in which the UC conducted her conversation with Ms. Obed infringedMs. Obed’s s. 7 rights.

To make this determination, I need to consider the legal test for what constitutes “active elicitation.” [30] The court in Broyles (at para. 37) noted, “it is difficult to give a short and precise meaning of elicitation.” [31] The parties also are in agreement that it is the first set of factors set out in Broyles that I must apply. That is, the nature of theexchange between Ms. Obed and the UC.

As stated in Broyles (at para. 38): Did the state agent actively seek out information such that the exchange could be characterized as akin to an interrogation, or did he orshe conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarilyhave done?

The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation werethe functional equivalent of an interrogation. [32] The second set of factors identified in Broyles (at para. 39) concerns the nature of the relationship between the state agent andthe accused.

There is no evidence to establish, and the Defence is not attempting to establish, the exploitation of a relationship of trust orthe other matters identified under the nature of the relationship. [33] In Liew (at para. 46) the court reiterated that the factors in Broyles are guidelines “to determine whether there was a causal linkbetween the conduct of the state agent and the making of the statement by the accused.” [emphasis added] [34] The court in Liew (at para. 45) found nothing in the facts to support that the exchange between the accused and the undercoverofficer was “the functional equivalent of an interrogation.” The court found (at para. 51) the undercover officer “did not direct thatconversation in any matter that prompted, coaxed or cajoled the appellant to respond.” Position of the Parties Defence Submissions [35] The Defence submits the questions the UC asked Ms.

Obed appear very much like an interrogation. It was more than passivelistening and crossed the line into what is not permitted – active elicitation of information about the offence. [36] Mr. Edwards points out the police were frustrated with Ms. Obed’s refusal after three attempts to obtain a statement, so they

moved to a cell plant operation. It was an attempt by the police to obtain through subterfuge what they could not obtain directly. [ 37 ] Contrary to the Defence Supplementary written submissions, the defence now concedes nothing turns on the ITO. The focus of the Defence position is on the audio recordings and the transcript of those recordings. [ 38 ] Mr. Edwards acknowledges there is a difference between Ms. Obed’s right to silence, when she knowingly is speaking to a police officer, than when in the cell and she does not know it is the police. Nevertheless, Ms.

Obed vigorously maintained her right to silence, and even expressed concern to the UC that her lawyer warned that the police could be listening on her conversations while in custody. The Defence pointed to incidents where Ms. Obed expressed concern to the UC that someone could be listening in on their conversations. [ 39 ] The Defence argues in the context of Ms. Obed’s specifically expressed concerns that someone was listening, the UC used active deception to undermine the accused’s right to silence. [ 40 ] Mr.

Edwards pointed to several specific references in the transcript to submit what occurred was the UC actively eliciting and redirecting Ms. Obed back to the subject of the offence. [ 41 ] Mr. Edwards made clear in his rebuttal to the Crown’s submissions that not every single statement is objectionable, although some are very objectionable. He submits I must consider the entire exchange, and when viewed in its totality, this was a de facto interrogation that undermined Ms. Obed’s right to silence. Crown’s Submissions [ 42 ] The Crown acknowledges Ms. Obed has a right to silence, but submits it is not absolute.

The police are permitted to engage in undercover operations. Ms. Thistle points to the words of the court in Liew (at para. 45 ): ... It is of no consequence that the police officer was engaged in a subterfuge, permitted himself to be misidentified, or lied, so long as the responses by the appellant were not actively elicited or the result of interrogation. In a more perfect world, police officers may not have to resort to subterfuge, but equally, in that more perfect world, there would be no crime.

For the moment, in this space and time, the police can, within the limits imposed by law, engage in limited acts of subterfuge. ... [ 43 ] Mr. Thistle states what the Defence is really objecting to is the cell plant operation and that the UC was expected to be nothing more than a “listening post.” Both propositions were expressly rejected in Liew (at para 58 ): In affirming a detainee's right to silence, Hebert and Broyles preserve and define an area of police investigation where undercover operations, including cell block interviews, are perfectly legitimate.

The undercover officer's interventions in the exchange at issue in this appeal are so innocuous that to conclude that the appellant's statements are inadmissible is effectively to abolish, contrary to Hebert and Broyles, that legitimate area of police investigation. It would be tantamount to adopting either a "listening post" standard or an "absolute right to silence" standard, both of which were unambiguously rejected by this Court in those cases. [ 44 ] The Crown further submits it is perfectly legitimate for the undercover to engage in conversation with the accused and even ask specific questions of Ms.

Obed that flow naturally from the conversation. What is not permitted is active elicitation by the police that causes an admission. In Liew (at para. 48 ), the question: “What happened?,” was not considered elicitation. [ 45 ] Mr. Thistle responded to an inquiry I had made in the course of the Defence counsel submissions, as to whether the cell plant operation was necessary for the Crown’s case. He notes there is no requirement of investigative necessity. The police had this avenue open to them. [ 46 ] The police do not need a prior judicial authorization to proceed with a cell plant operation.

If police want to record the conversation, they need a “one-party consent” authorization. In R. v. Sparks and Rich , 2020 NSSC 128 (at paras. 8-11 ), the police did not have the time to obtain an authorization, and the lack of recording did not bar admissibility. [ 47 ] Mr. Thistle points out the police do not gather so much investigation then stop. The police are required to run down all investigative leads, especially so in this case. There is an allegation of murder and intent will be the matter in issue.

Another essential element of the offence – identity has not been conceded. [ 48 ] Further, relevant possible defences that could come up are self-defence, provocation, intoxication and mental disorder. [ 49 ] I am reminded that the Defence bears the burden of proof on a balance of probabilities to show that it was more likely than not there were admissions made by the accused to the UC. The UC must have caused Ms. Obed to make the admissions through active elicitation having regard to the nature of the exchange between them.

The Crown submits the Defence has not met that onus to establish the breach. [ 50 ] The Crown refers to R. v. Gillis , 2018 NSSC 20 (at para. 68 ), to contextualize where cell plants fit into the law of evidence. The rule regarding statements obtained by cell plant undercover officers is “a specific qualification to the party admissions hearsay rule.” [ 51 ] Justice Rosinski, in Gillis (at para. 69 ), provides a concise and apt

summary of the policy rationales and evidentiary rules concerning “active elicitation.” [ 52 ] The Crown notes that Ms. Obed’s statements to the UC are not essential to the Crown’s case – the Crown can and will prosecute the case without some or all of the statements. It is nevertheless relevant evidence that goes directly to two key elements of the offence, identity and intent. The Crown may wish to lead the statements as part of the case in direct, or to use it as a prior inconsistent statement for the purpose of cross-examination of Ms. Obed should she choose to testify.

[ 53 ] The Crown contends that where the Defence argument breaks down is the failure to show that the UC elicited and caused Ms. Obed to make the incriminating statements. [ 54 ] Mr. Thistle acknowledges that the legal test for what constitutes elicitation is not a bright-line test. It is context specific and the case law permits questioning, redirecting, and mirroring. analysis Issue 1 – Was Ms. Obed’s s. 7 right to silence violated by the conduct of the cell plant? [ 55 ] I turn now to the analysis of the specifics of the exchange that occurred between the UC and Ms. Obed.

I must decide whether the UC elicited and caused Ms. Obed to make inculpatory admissions in breach of her s. 7 right to silence. [ 56 ] The exchange between the UC and Ms. Obed started out cordial and remained so throughout. I find that the UC did not intimidate or use any form of oppression in her conversations with Ms. Obed. However, an atmosphere of oppression is not required to support a finding that a cell plant exchange is the functional equivalent of an interrogation. The questioning can be congenial, gentle and subtle, as I find it was in this case, and still constitute a breach: R. v.

Deboo , 2015 BCSC 69 (at paras. 41 and 63 ). How the Conversation Starts [ 57 ] Soon after the UC enters the cell with Ms. Obed, Ms. Obed inquires of the UC, “What made you come in?” The UC tells Ms. Obed she was returning to Newfoundland and got arrested on outstanding warrants from BC. [ 58 ] It is entirely appropriate for the UC to misidentify, and she is permitted to lie to carry out the purpose for cell plant operation. The UC is not restricted to passive listening. [ 59 ] The UC asks Ms. Obed how long she has been “in.” In response, Ms.

Obed volunteers that she came in on Monday [August 30, 2021], “and I might be in for a while because I was on the news and everything.” Ms. Obed states, “I’m being charged with second degree murder.” [ 60 ] The UC responds, “You don’t look like you are capable of that.” Ms. Obed replies, “I know. It seems strange, but I am.” [ 61 ] The UC then changes the conversation and inquires, “How are you doing?” To which Ms. Obed spontaneously mentions “stabbed.” The UC redirects and immediately responds, “No, but how are you doing?” UC Building Rapport with Obed [ 62 ] The UC asks if Obed has family and where she lives.

She asks, “You think you’ll be in for a while?” The UC mentions that she may have difficulty sleeping and asks Ms. Obed about her sleeping and the food. She asks Ms. Obed whether she has children, their ages and whether they go to school. [ 63 ] The UC is playing role-appropriateness and building rapport with Ms. Obed. First Reference to Cameras and Someone Listening [ 64 ] Ms. Obed observes it appears they are letting us out for coffee, and notes after being in for a while you can hear and recognize what is happening. Prompting UC to ask, “Are they watching on cameras?

Is that a camera?” Obed replies “There’s a camera right there and it’s working. Probably on audio too. I don’t know. I don’t care. We’re not talking about nothing serious, right? ... nothing we can get charged with.” [ 65 ] The Crown relies on this exchange and three others (Tab 1, p. 53; Tab 2, p. 8; and Tab 8, p. 29, Book of Transcripts) to show Ms. Obed chose to speak to the UC regardless of this clear belief that other people, and in particular the prison guards, were listening to her conversation. [ 66 ] The law permits Ms.

Obed to make the choice to speak to the UC, even after being advised not to do so by legal counsel. The accused’s right to silence though cannot be circumvented by the UC’s active elicitation of admissions. I am tasked with making the factual determination whether that is what occurred here. [ 67 ] Obed returns to the UC’s charges. The UC asks as a curious cellmate might, “Anyone else here do anything like what you’re charged with?” [ 68 ] They discuss the amount of drugs in Newfoundland. The UC says she drinks too much.

Obed replies, “Yeah, I loves drinking too.” [ 69 ] The UC asks, “Is there any dope going around here?” To which Obed replies, “I don’t say.” She then tells the UC she is not sleeping well, and they [correctional officials] give her Ativan “day and night” to help her calm down and sleep. “The Seed that Grows” [ 70 ] In the words of Mr. Edwards, what occurs next is “the seed that grows” through the remainder of the UC’s exchanges with Ms.

Obed and the beginning of the de facto interrogation . [ 71 ] The Defence argues the situation is similar to that in Deboo because the conversation travelled away but the UC actively re- engaged Ms. Obed (Tab 1, p. 33, Book of Transcripts):

UC: You’re so tiny. I can’t believe that you’re in here for murder. Obed: I know, yeah. UC: It doesn’t even make sense. Obed: You’re the second person told me. I don’t think I know how because when I drinks it makes me... UC: Ah, do you drink a lot and then not remember stuff or... Obed: Yes, that’s what happened. I blacked out and don’t remember because I got PTSD, right? [ 72 ] Meanwhile, the Crown has a completely different view of this exchange and the applicability of Deboo to this case.

In Deboo (at paras. 66 and 67 ), the court took issue with the UC’s redirecting of the conversation to matters of particular interest for the investigators and direct questions about the offence. [ 73 ] Mr. Thistle points out the UC made the observation and comment, “You’re so tiny. I can’t believe that you’re in here for murder,” in the normal course of conversation, as Ms. Obed was standing looking out through the cell window into the range. [ 74 ] It does not immediately elicit an incriminating admission from Ms. Obed. PTSD and Ex-Boyfriend [ 75 ] Ms.

Obed states she does not remember what happened because she has PTSD, prompting the UC to ask, “What do you have PTSD from?” Obed indicates she has been “through a lot.” She was in an “abusive relationship” with her ex-boyfriend and when she left him, he was still following her around. [ 76 ] The UC asks, “Is that what happened?” and whether he lives in St. John’s. Unbeknownst to the UC, Obed reveals, “He passed away,” and “ I killed him .” (Tab 1, p. 35, Book of Transcripts) [ 77 ] This is a clear admission and statement against interest. I find it was said spontaneously by Ms.

Obed and not elicited by anything the UC asked of Obed at this point in the conversation. [ 78 ] The UC exclaims, “Holy shit and he was chasing you?” Obed says, “Yeah, he’s been harassing me and everything, even when I was pregnant he still used to beat me.” The UC asks, “Is he the baby’s daddy?” Obed replies, “He says he is, but he’s not.” [ 79 ] Obed says she just had the baby recently.

The UC comments, “Well, see your hormones are all fucked up.” Obed points out she has been getting head spins, migraines, nausea “just trying to think of what happened.” Don’t Remember What Happened? [ 80 ] The UC inquires, “Oh, you don’t remember what happened?” (Tab 1, p. 36, Book of Transcripts). Obed’s reply is, “No, I just, I was having a knife and I was there looking at him.” [ 81 ] The exchange continues (Tab 1, pp. 36-37, Book of Transcripts): UC: Where were you, like home? Obed: Cabot, St. John’s. Cabot street. UC: Oh. Obed: And then someone told me that I failed ot help him.

But she said something to me and then I said fuck you. UC: Oh. Obed: I don’t remember any of that stuff. UC: Really? Obed: No. UC: Wow! Like, do you carry a knife because you’re scared? Obed: No, he came at me with the knife. UC: He had the knife? Obed: Yes. UC: Oh. Wow! And was nobody there to help you?

Obed: Nobody. There was a woman that goes on the Lawton’s [unintelligible]. She was [unintelligible], she had bear sprayed me, and I said, “you’re the one who came at me with the bear spray. UC: She tried to bear spray you? Obed: She did, and I tried to [unintelligible] but instead I went back to my ex-boyfriend. UC: Oh. Holy crap! Obed: I said, “Yeah, you better get going, if not I’ll get after you.” [ 82 ] Mr. Edwards submits this demonstrates classic police questioning to elicit and interrogate a suspect. [ 83 ] On the other hand, Mr.

Thistle submits all the UC was doing was repeating back what Obed said to her. The case law authorities, he points out, permit “mirroring questions” and the specific question, “What happened?,” if it arises naturally from the conversation flow. [ 84 ] Following Liew , not all questions asked by an undercover operative in the context of a cell plant are problematic. In R. v. Shaw , 2017 NLTD(G) 87, Goodridge J (as he then was) assessed a cell plant operation investigating a shooting.

Part of the impugned exchange related to the circumstances of the accused’s arrest. [ 85 ] Justice Goodridge stated (at para. 25): I do not characterize the comment from UCO-IH – “that for a breach” – as a leading question, or part of any veiled interrogation. It was the same type comment one would expect during the usual back and forth banter among cell mates. UCO-IH merely remained in his role. I acknowledge that role-appropriateness by itself does not sanitize the exchange, but I find that the UCOs did not direct this conversation and did not prompt, coax or cajole responses from Mr.

Marsh (see para. 51 of Liew ). [ 86 ] Another case, R. v. Radjenovic , 2010 BCSC 1459 , talks about repeating or “mirroring” questions. In that case the justice held (at para. 26) that it is not problematic for the UC to simply repeat what the accused is saying. Active Elicitation and Functional Interrogation [ 87 ] When I consider the exchanges between Ms. Obed and the UC holistically starting at Tab 1, page 36 of the Book of the Transcripts, I find Ms. Obed’s cell conversation with the UC amounted to the functional equivalent of a subtle interrogation.

I am satisfied the UC did not intentionally or even consciously attempt to elicit details of the offence, but taken in its entirety the effect of the UC’s questioning was akin to an interrogation. [ 88 ] After the UC observed, “You don’t remember what happened?,” she questions where the offence occurred, the reason she was carrying a knife and whether he had a knife. These are all investigative details about the offence that the UC is actively eliciting from Ms. Obed. [ 89 ] I accept the Defence position that not every question is objectionable.

Nevertheless, the functional interrogation and elicitation of investigative details concerning the offence continues to weave henceforth through the back and forth exchanges. [ 90 ] After the conversation had moved on to discussion on Ms. Obed being from Labrador, the weather in Labrador and her feeling better, now sober in jail, the UC prompts Obed to discuss her ex-boyfriend’s drug use and lifestyle. Obed volunteers that “he came by when I was at the dealer’s.” She further says, “He came by at the wrong time.” [ 91 ] The UC is permitted to ask questions and follow-up on information volunteered by Ms.

Obed, but cannot direct or interrogate. I find the UC in a discrete and understated fashion increasingly moves to directing and redirecting Ms. Obed to the circumstances of the offence. [ 92 ] The UC came across to me as a credible witness wanting to do her job according to the legal rules and standards governing cell plant operations. Unfortunately, she perhaps unknowingly allowed her experience, training and skills as a police officer to engage in a functional interrogation of the accused. The Interrogation Continues [ 93 ] The UC wants to know more about the female that had the bear spray.

This again is further redirecting. Obed advises, “That was a couple days before this happened ... she was there and I fuckin lost it.” The UC then asks, “She was there like when you were at the dealer’s?” Obed replied, “Yeah, she was with him.” [ 94 ] The UC continues to dig deeper into the relationship, “So what, they were like together, together?” This is coaxing Ms. Obed to discuss the victim’s relationship with that person.

The UC gets Obed to elaborate on the connection between the two, “She was a fuckin’ hooker, and he lets hookers in his house the day he got money and then wants a fuck.” She says, “hookers constantly were there” and “that’s why I’m not with him because there’s hookers.” [ 95 ] Obed states, “And here’s my ex fuckin’ driving me nuts.” The Crown notes the UC is simply repeating back to Obed when the UC says, “He’s literally drove you nuts.” I find the UC cajoles Obed into revealing her state of mind at the time of the offence by commenting, “like, obviously pushed you just straight to like your limit.” Obed replies, “Yeah, I had no other choice.

It’s either me or him, you know?” This is an admission against interest that the UC’s elicitation caused Ms. Obed to make. [ 96 ] Then there is a discussion that Ms. Obed raises about a [crack cocaine] pipe burning her breast. Obed says it was “the same day, later on,” but she doesn’t remember. “I was drunk.”

[ 97 ] Obed is talking about her burn and the cream they gave her for it. The UC encourages her to put the cream on so she doesn’t get it infected. The UC pivots and asks a leading question: “So you did that when you were running?” [ 98 ] Taking Obed by surprise she responds, “What?” The UC again leads with “You were running, and you put it in your shirt?” Obed says, “Probably, yeah.” The UC continues to interrogate: “Oh, you don’t know?” Obed responds, “I don’t remember anything.” [ 99 ] Obed advises she was being held and investigated.

The UC, in playing her role, acts surprised and states, “What do you mean, like they arrested you?” Obed says she was taken to the cop station and the police took all of her clothes. The UC wants more details on the arrest, “Where did they find you?” Obed replies, “I didn’t leave because there’s no point in running, right?

So that only make things worse, running.” [ 100 ] Obed offers, “Society don’t know what I’ve been through.” She states people close to her know “it’s been going on for a while.” That gives the UC the bridge to inquire, “With the boyfriend, you mean, your ex-boyfriend?” There is nothing improper about that question. What comes next is improper. [ 101 ] The UC states, “He [the victim] sounds like he really did a number on you.” I find this comment is the seed that is growing to prompt, coax and cajole Obed into explaining and justifying why she killed her ex-boyfriend.

The UC continues by using flattery, “You’re awfully tough. I don’t know if I could’ve done that.” [ 102 ] I reject the Crown’s submission that other inculpatory utterances by Ms. Obed are unprompted and from matters that Ms. Obed herself raised. I cannot allow the impugned portions of the conversation that the Crown is seeking to reveal Obed’s state of mind at the time of the offence, and offer a motive for the offence. Specifically, the inculpatory statements that jealousy may have been the reason Ms. Obed killed Mr. Corcoran. Undermining vs.

Ignoring of Legal Advice [ 103 ] After the active elicitation and functional interrogation has already become readily apparent, Obed raises that her lawyer told her this morning not to trust anyone in jail. It leads to this exchange (Tab 1, p. 75, Book of Transcripts): UC: What did you say? Obed: He told me not to trust anyone because there can be cops who can charged, come in here too. So. UC: Oh, in jail? Obed: Yeah. He told me that this morning. So all this just, I don’t know. UC: Well, you don’t have to worry about me. Obed: Okay. UC: Look at me, do I look like a cop? Obed: No.

UC: Cops are usually in good shape and taller. Obed: Yeah. [unintelligible] UC: Yeah, I can imagine. Everything is so scary. I don’t know, you just don’t... I know what you mean, like you don’t know who to trust or what’s going on, or like I find nobody is telling me anything. [ 104 ] The UC was permitted to use subterfuge to deceive Ms. Obed into believing she was not a police officer.

But having the knowledge that Obed’s lawyer advised her to be alert and cautious of what she was saying to anyone in jail, I am of the view there was a higher obligation on the UC to remain mindful of Obed’s right to silence and stay away from active elicitation. In pursuit of her objective to find out Obed’s involvement in the death of James Corcoran, she fell into the trap of not separating her unconscious bias of wanting to do the job she was asked to do, without actively engaging in the interrogation of Ms. Obed.

You’re Famous [ 105 ] The UC persistently repeats back to Obed, “You’re famous.” Obed initially told her she was all over the news and social media. Obed (Tab 2, p. 28, Book of Transcripts) is telling the UC about a sex offender who assaulted her and she had him charged. She said he was released now, “so he better stay away from me.” The UC takes the opportunity in further cajoling: UC: Mm. Wow! I’d say he’ll stay away from you. You’re famous. Obed: Yeah. UC: If he know what’s good for him. Obed: Mm-hmm. He knows now.

UC: You can’t mess with Lorraine. “Bringing Hookers Back” and Other Inculpatory Statements about Ex-boyfriend

[ 106 ] I do not agree with the Crown’s submission that the conversation on “bringing hookers back” was rapport-building and simply repeating back and agreeing with Obed. The UC’s comment: (Tab 6, p. 16 , Book of Transcripts). “And he was brining hookers back?

That would piss me off.” The unintended consequence of such comment is to engender a justification in Obed’s mind for the killing of her unfaithful ex-boyfriend. [ 107 ] The comment from Obed about her father, also hating her ex-boyfriend and the following inculpatory statement comes well after the active elicitation is in progress: “I wants to kill him and his dog. But I killed him instead of the dog. Because the dog is beautiful.” [ 108 ] Obed tells the UC that her ex-boyfriend’s nickname is “Sponge Bob,” and he “fucking deserved it.” The UC replies: “It sounds like he deserved it. Holy shit.

He put you through a lot.” Obed says he was always pursuing her to have sex. [ 109 ] Obed advises she reported her ex-boyfriend to the police more than once, and they never arrested him. She also relates, “And there’s all those times that he tried to push me down the stairs more than once.” [ 110 ] Reinforcing my view that this was in effect a veiled interrogation to elicit a justification for the alleged offence, the UC repeats, “Only so much a woman can take. And then show up with hookers ...

You’re better off without him.” [ 111 ] Obed states, “I tried to leave him alone but he kept ... he wouldn’t leave me alone.” The UC merely repeats what Obed had said earlier that he keeps chasing her. [ 112 ] Finally, Obed returns to the offence toward the end of the UC operation. Obed and the UC had been talking about her pregnancy and another man who was interested romantically in her. The following exchange then occurs (Tab 8, p. 24, Book of Transcripts): UC: Are you lonely? Obed: Yeah, I am. I feels bad for not texting him back. I read his message but never replied. UC: Oh, when was that?

Obed: Just before I came in. UC: Oh Obed: Before all this stuff happened. I feels bad. I could of just slept somewhere else but I felt like getting high and he happened to show up at the wrong time. UC: Who? Obed: Sponge. UC: Oy, yeah, yeah, you were saying Obed: I could of went somewhere else. I was there for a reason. I don’t know why. What’s his name, the dealer there too, fuck, and he cocksuckin’ fuckin ruins everything. UC: He sounds like an asshole. That’s... Obed: He even followed me to the dealer’s. The dealer can’t even stand him. He was [unintelligible]. UC: Yeah, he can’t leave you alone.

He couldn’t leave you alone. [ 113 ] The Crown submits these comments are completely unprompted, and highly probative of identity and the accused’s state of mind. I find these words came out of the mouth of Ms. Obed as a direct result of a rather skillful and active elicitation by the UC. Issue 2 – What is the appropriate remedy if Ms. Obed’s right to silence was violated? Not “All-or-Nothing” Approach [ 114 ] I have concluded no active elicitation ensued until after the UC inquired, “Oh, you don’t remember what happened?” (Tab 1, p. 36, Book of Transcripts). I will permit Ms.

Obed’s answer to that question and exchanges to the top of page 37 of the Book of Transcripts where Obed repeats, “I don’t remember any of that stuff.” [ 115 ] The Crown submits even where active elicitation is found the whole of the conversation need not be excluded.

In Gillis (at para. 56 ), the court examines the “all-or-nothing” approach to the admissibility of the conversation and rejects it: In my opinion, but for unusual cases where the detainee’s vulnerabilities are exploited, and therefore, the entirety of the responses are tainted, such as in Skinner, the proper approach in this case, and generally, is to contextually examine discrete instances of claimed “active elicitation” and determine if they individually each amount to a breach of s. 7 of the Charter . [ 116 ] I find there is no probative value to any of Ms.

Obed’s conversation with the UC after redacting or editing the exchanges that arose from an active elicitation and the functional interrogation beginning (at Tab 1, p. 37, Book of Transcripts) with the UC’s question:

“Like, do you carry a knife because you’re scared?” [ 117 ] The remainder of the conversation is tainted by active elicitation that caused Ms. Obed to make admissions against her interest. The prompting, coaxing and cajoling is interwoven throughout, and I am unable to sever other parts. Grant Test under s. 24(2) for Exclusion of Evidence [ 118 ] Having found a violation of the accused’s s. 7 rights, that does not automatically result in the exclusion of the evidence. I must assess whether the evidence is to be excluded under s. 24(2) in accordance with the principles in R. v. Grant , 2009 SCC 32 . [ 119 ] Mr.

Thistle acknowledges the burden shifts, based on the nature of the s. 7 infringement in this case, back to the Crown to prove on a balance of probabilities that in fact the administration of justice will not be brought into disrepute. I find the Crown has not established the evidence should be admitted notwithstanding the breach. [ 120 ] Under Grant , (at para. 71 ), there are “three avenues of inquiry” that a court must consider. They are: 1. The seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct); 2.

The impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little); and 3. Society’s interest in the adjudication of the case on its merits. [ 121 ] The Court’s role is to balance the assessment, considering all the circumstances, whether admission would bring the administration of justice into disrepute. [ 122 ] The Crown acknowledges, if a breach is found to have occurred, that the impact of it on the Charter – protected rights is moderate.

However, that seriousness also needs to be balanced against the strong society interest in an adjudication of the case on its merits. [ 123 ] The Crown concedes the impugned evidence is not essential to the Crown’s case and the Crown will prosecute the case without the statements if they are held to be inadmissible. [ 124 ] The key issue in this murder trial is intent and the accused’s state of mind.

Unlike in Sparks and Ritch , (at para. 58 ) where the trial judge found a single Charter breach close to the end of the cell plant operation, the Charter infringement here came much earlier in the conversation between the UC and Obed as I have identified above. Application of the Grant Test [ 125 ] I note in Grant (at para. 89 ) the court comments that statements by the accused engage the principle against self-incrimination, “one of the cornerstones of our criminal law,” which includes the right to silence.

The court observes (at para. 91) as a matter of practice, courts have tended to exclude statements obtained in a breach of the Charter . [ 126 ] The focus of the first inquiry is that admission of the evidence would harm the repute of justice by associating the courts with illegal police conduct. I have found that the UC did not willfully breach Ms. Obed’s right to silence. The UC was acting in good faith even though I have concluded active elicitation caused Ms. Obed to make incriminating statements. As in Gillis (at paras. 161 and 162 ) the UC was consciously doing her utmost to respect Ms.

Obed’s right to silence. On balance, this factor favours admission of the statements. [ 127 ] Unlike in Gillis (at para. 160 ), where only a small number of admissions and statements were found to be impermissible “active elicitation," I have concluded there were substantial admissions resulting directly from the active elicitation. [ 128 ] On the second inquiry, I find the impact on Ms. Obed’s right to silence is significant. By admitting the impermissible exchanges, the Court could be seen as condoning cell plant operations that overstep the impermissible active elicitation line.

This factor favours exclusion of the statements. [ 129 ] Finally, the third inquiry focuses on the public interest in having the case tied fairly on its merits. Exclusion of the evident will not preclude the Crown from continuing prosecution of the case – extensive other sources of evidence exist, including video evidence from a doorbell camera depicting the stabbing, testimony of eye witnesses at the scene of the incident, physical exhibits (the knife and clothing), and expert forensic opinion evidence.

Proof of identity will be established through other evidence, and the portion of the statements that I have found not to be in breach of s. 7. [ 130 ] I recognize the Crown may have greater difficulty proving motive, intent and the accused’s state of mind without the excluded statements. Nevertheless, as noted in Hebert and Broyles , the admission of self-incriminating evidence obtained as a result of the Charter breach will generally be sufficient to render a trial unfair.

I find in all the circumstances of this case, admission of the statements would have that effect ( Deboo at para. 70 ). conclusion and disposition [ 131 ] Ms. Obed’s s. 7 right to silence was violated by the UC actively eliciting statements from the accused that caused Ms. Obed to make inculpatory admissions, beginning at Tab 1, page 37 of the Book of Transcripts, as more particularly specified above in paragraph 116. [ 132 ] The portion of the cell conversation not found to be in breach of s. 7 meets threshold reliability and may be admitted as part of the

Crown’s case in chief and for cross-examination of the accused, if Ms. Obed testifies in her own defence. [ 133 ] The appropriate remedy for the statements found to have infringed Ms. Obed’s s. 7 rights is exclusion of the evidence under s. 24(2). ______________________________ GLEN L.C. NOEL Justice