R. v. Beaver, 2022 SCC 54

SUPREME COURT OF CANADA Citation: R. v. Beaver, 2022 SCC 54 Appeals Heard: February 14, 2022 Judgment Rendered: December 9, 2022 Dockets: 39480, 39481

Between: James Andrew Beaver Appellant and His Majesty The King Respondent - and - Attorney General of Ontario and Canadian Civil Liberties Association Interveners And Between: Brian John Lambert Appellant and His Majesty The King Respondent - and - Attorney General of Ontario Intervener Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. Reasons for Judgment : (paras. 1 to 137) Jamal J. (Wagner C.J. and Moldaver, Rowe and Kasirer JJ. concurring) Dissenting Reasons : (paras. 138 to 233) Martin J. (Karakatsanis, Côté and Brown JJ. concurring)

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports . James Andrew Beaver Appellant v. His Majesty The King Respondent and Attorney General of Ontario and Canadian Civil Liberties Association Interveners - and - Brian John Lambert Appellant v. His Majesty The King Respondent and Attorney General of Ontario Intervener Indexed as: R. v. Beaver 2022 SCC 54 File Nos.: 39480, 39481. 2022: February 14; 2022: December 9.

Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. on appeal from the court of appeal for alberta Criminal law — Evidence — Admissibility — Confessions rule — Voluntariness — Individual unlawfully detained after reporting death of roommate — Individual given police caution and advised of right to retain and instruct counsel without delay but refusing to contact lawyer and confessing to involvement in death — Individual later charged with manslaughter and seeking exclusion of confession as involuntary — Trial judge admitting confession and entering conviction — Whether confession admissible at trial.

Criminal law — Arrest — Warrantless arrest — Reasonable and probable grounds — Warrantless arrests by police of two individuals for murder after they reported death of roommate — Whether police had reasonable and probable grounds for arrests.

Constitutional law — Charter of Rights — Remedy — Exclusion of evidence — Police detaining two individuals with respect to death of roommate in breach of several of their Charter rights — Police attempting to make fresh start by later advising individuals of Charter rights and arresting them for murder — Police then obtaining confessions — Trial judge admitting confessions at trial and entering convictions for manslaughter — Whether confessions should be excluded — Canadian Charter of Rights and Freedoms, s. 24(2) . The accused, L and B, shared a townhouse with the deceased.

One morning, L called 9-1-1 and alleged that he and B had arrived home to find the deceased dead in a puddle of blood. L told the 9-1-1 operator that they did not know how the deceased had died, but admitted that there had been altercations all week between L, B, and the deceased. Police officers who attended the scene in response to the 9-1-1 call breached the accused’s ss. 9 , 10(

a) and 10(

b) Charter rights by detaining them and taking them to the police station without lawful authority. When homicide detectives realized that their colleagues had unlawfully detained the accused, they promptly tried to make a “fresh start” by advising them of their Charter rights and then arresting them for murder. When questioned separately, the accused initially denied any knowledge of how the deceased had died. Eventually, however, they both confessed to killing him. At issue at trial was the admissibility of these confessions.

On voir dire , the trial judge held that the Crown had proved the voluntariness of the accused’s confessions beyond a reasonable doubt and that neither of their confessions should be excluded under

s. 24(2) of the Charter , as they had not been “obtained in a manner” that infringed or denied any rights or freedoms guaranteed by the Charter . The trial judge determined that the homicide detectives cured the Charter breaches arising from the accused’s unlawful detention by making a “fresh start” and arresting them for murder at police headquarters. The accused were convicted of manslaughter. The Court of Appeal dismissed the conviction appeals.

It found that there was no reviewable error in the trial judge’s assessment of voluntariness, and that the police had reasonable and probable grounds to arrest the accused for murder. The court further agreed that the homicide detectives made a “fresh start” in arresting the accused, such that their confessions were not “obtained in a manner” that breached the Charter . B appeals the determination regarding the voluntariness of his confession and both B and L appeal the determination that their confessions should not be excluded under s. 24(2) of the Charter .

Held (Karakatsanis, Côté, Brown and Martin JJ. dissenting): The appeals should be dismissed. Per Wagner C.J. and Moldaver, Rowe, Kasirer and Jamal JJ.: B’s confession was voluntary and thus admissible under the common law confessions rule, and the police had reasonable and probable grounds to arrest both accused for murder. However, although homicide detectives made a “fresh start” from the Charter breaches arising from L’s unlawful detention, there was no “fresh start” made in B’s case. Thus, only B’s confession was obtained in a manner that breached the Charter .

Balancing the lines of inquiry under s. 24(2) of the Charter , admitting B’s confession into evidence would not bring the administration of justice into disrepute. The common law confessions rule provides that a confession to a person in authority is presumptively inadmissible, unless the Crown proves beyond a reasonable doubt that it was voluntary. Under this rule, an involuntary confession always warrants exclusion.

But a voluntary confession will not always be admitted into evidence: if a voluntary confession was “obtained in a manner” that breached the Charter , it can still potentially be excluded under s. 24(2) . At the heart of the confessions rule is the delicate balance between individual rights and collective interests in the criminal justice system. The twin goals of the rule involve protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes.

On the one hand, the common law recognizes an individual’s right against self-incrimination and right to remain silent; on the other, it is accepted that the police often need to speak to people when discharging their important public responsibility to investigate and solve crime. Voluntariness, broadly defined, is the touchstone of the confessions rule.

It is a shorthand for a complex of values engaging policy concerns related to not only the reliability of confessions, but also to respect for individual free will, the need for the police to obey the law, and the fairness and repute of the criminal justice system. The application of the confessions rule is necessarily flexible and contextual.

When assessing the voluntariness of a confession, the 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. The trial judge must consider all relevant factors, including the presence of threats or promises, the existence of oppressive conditions, whether the accused had an operating mind, any police trickery that would shock the community, and the presence or absence of a police caution.

These factors are not a checklist and do not supplant a contextual inquiry. Absent an error of law in relation to the applicable legal principles, a trial judge’s application of the voluntariness framework is a question of fact or of mixed fact and law attracting appellate deference. Mere disagreement with the weight given to various items of evidence is not a basis to reverse a trial judge’s finding of voluntariness.

The police have statutory authority to arrest a person without a warrant under s. 495 of the Criminal Code , which allows a peace officer to arrest a person if, on reasonable grounds, they believe the person has committed or is about to commit an indictable offence. A warrantless arrest requires subjective and objective grounds to arrest. The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint.

In assessing the subjective grounds for arrest, the question is whether the arresting officer honestly believed that the suspect committed the offence. Subjective grounds for arrest are often established through the police officer’s testimony. This requires the trial judge to evaluate the officer’s credibility, a finding that attracts particular deference on appeal.

The objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer. The arresting officer’s grounds for arrest must be more than a hunch or intuition.

In evaluating the objective grounds to arrest, courts must recognize that the officer’s decision to arrest must often be made quickly in volatile and rapidly changing situations, and the officer must make their decision based on available information which is often less than exact or complete. At the same time, the police cannot rely on evidence discovered after the arrest to justify the subjective or objective grounds for arrest.

Courts must also remember that determining whether sufficient grounds exist to justify an exercise of police powers is not a scientific or metaphysical exercise, but one that calls for the application of common sense, flexibility, and practical everyday experience. “Reasonable and probable grounds” as a basis for a warrantless arrest is a higher standard than “reasonable suspicion”. Reasonable suspicion requires a reasonable possibility of crime, while reasonable and probable grounds requires a reasonable probability of crime.

The reasonable and probable grounds standard requires a reasonable belief that an individual is connected to the offence. A reasonable belief exists when there is an objective basis for the belief which is based on compelling and credible information. It is the police officer who directed the arrest who must have reasonable and probable grounds. The existence of reasonable and probable grounds is a factual finding reviewable only for palpable and overriding error, yet whether the facts as found by the trial judge amount to reasonable and probable grounds is a question of law reviewable for correctness.

The police’s failure to take detailed contemporaneous notes of the grounds for arrest and the material relied on in forming those grounds does not preclude a finding of reasonable and probable grounds. Although notes are generally desirable, they are not mandatory in all cases. Imposing such a requirement could undermine the ability of the police to respond appropriately to the dynamic situations they face each day. Furthermore, the lack of contemporaneous notes does not necessarily frustrate judicial review of warrantless arrests.

Courts routinely evaluate the existence of reasonable and probable grounds based on the arresting officer’s testimony and other evidence. Determining whether evidence should be excluded under s. 24(2) of the Charter proceeds in two parts. The first component — the threshold requirement — asks whether the evidence was “obtained in a manner” that infringed or denied a Charter right or freedom. The threshold requirement insists that there be a nexus between the Charter breach and the evidence, absent which s. 24(2) has no application.

This determination involves a case-specific factual inquiry into the existence and sufficiency of the connection between the Charter breach and the evidence obtained; there is no hard and fast rule. Once the threshold requirement is met, the second

component of the s. 24(2) analysis — the evaluative component — asks whether, having regard to all the circumstances, admitting the evidence would bring the administration of justice into disrepute. Answering this question involves examining the impact of the admission on public confidence in the administration of justice over the long term, based on a balancing of (

i) the seriousness of the Charter -infringing state conduct; (ii) the impact of the breach on the accused’s Charter -protected interests; and (iii) society’s interest in the adjudication of the case on its merits. Section 24(2) of the Charter is not an automatic exclusionary rule precluding the admission of all unconstitutionally obtained evidence. Such evidence will only be excluded when the accused establishes that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute.

Balancing the relevant considerations under s. 24(2) is a qualitative determination that is not capable of mathematical precision. Evidence will not be “obtained in a manner” that breached the Charter when the police made a “fresh start” from an earlier Charter breach by severing any temporal, contextual, or causal connection between the Charter breach and the evidence obtained or by rendering any such connection remote or tenuous. The police may make a “fresh start” by later complying with the Charter , although subsequent compliance does not result in a “fresh start” in every case.

The “fresh start” inquiry applies to any form of evidence that the police obtain following a Charter violation; it is not limited either to successive statements or to s. 10(

b) Charter violations. When undertaking the case-specific factual inquiry into whether the police effected a “fresh start”, some potentially illustrative indicators include whether (

i) the police informed the accused of the Charter breach and dispelled its effect with appropriate language; (ii) the police cautioned the accused after the Charter breach but before the impugned evidence was obtained; (iii) the accused had the chance to consult counsel after the Charter breach but before the impugned evidence was obtained; (iv) the accused gave informed consent to the taking of the impugned evidence after the Charter breach; (

v) the accused was released from detention after the Charter breach but before the impugned evidence was obtained; and (vi) whether and how different police officers interacted with the accused after the Charter breach but before the impugned evidence was obtained. In the instant case, deference is owed to the trial judge’s conclusion that B’s confession was voluntary, as B has not established that any palpable and overriding error infected the trial judge’s findings of fact.

Furthermore, when examining all the information before the homicide detective through the eyes of a reasonable person with the knowledge, training, and experience comparable to such a seasoned homicide detective, it must be concluded that he had objectively reasonable and probable grounds to arrest the accused for murder. However, the trial judge erred in law by failing to apply the correct legal test and by applying an incorrect legal principle in his “fresh start” analysis by unhelpfully and inaccurately describing the police as having “cured” the earlier Charter breaches.

The Charter breaches still occurred and merit proper consideration under the threshold requirement, but Charter -compliant conduct may dissociate the breaches from the impugned evidence. Analyzing the issue afresh, in L’s case, the police took several steps that collectively severed any contextual connection between the breach of his Charter rights arising from his unlawful detention and his confession. These steps rendered any temporal connection with the Charter breaches remote. There was also no causal relationship between the Charter breaches and L’s confession.

In all, L’s confession was not “obtained in a manner” that breached the Charter . However, B’s confession remained contextually linked to the earlier Charter breaches notwithstanding the police’s attempts at a “fresh start”. B’s confession was thus “obtained in a manner” that breached the Charter , which satisfies the threshold requirement under s. 24(2) . The cumulative weight of the first two lines of inquiry is overwhelmed by a compelling public interest in admitting B’s confession.

This evidence is crucial to the prosecution’s case against an offender who allegedly killed another person and then tried to obstruct the police investigation. On a proper balancing of the three lines of inquiry under s. 24(2) , B’s confession should be admitted into evidence. Per Karakatsanis, Côté, Brown and Martin JJ. (dissenting): The appeals should be allowed, the evidence obtained in a manner that infringed the accused’s Charter rights excluded, the convictions set aside, and new trials ordered.

There is disagreement with the majority’s conclusion that it was lawful for the police, after learning of the circumstances of the accused’s unlawful detention, to immediately arrest them for murder and direct their continued questioning. The information relied on to direct the accused’s arrests does not come close to the particularized probability required to meet the reasonable grounds standard. The arrests were a blatant attempt to salvage the investigation in the face of what officers knew were multiple serious violations of the accused’s Charter rights.

The accumulation of breaches of well-established Charter standards requires that the evidence be excluded as a remedy under s. 24(2) of the Charter to avoid bringing further disrepute to the administration of justice. There is further disagreement with the majority regarding the test for exclusion under s. 24(2) , which is long established and well known. The focus is on the connection between the breach and the evidence obtained, with reference to temporal, contextual, and causal elements. There is no need to speak in terms of whether there was a “fresh start” for those who have breached Charter rights.

The notion of a “fresh start” is an unhelpful and potentially misleading concept that has no place in the s. 24(2) analysis. It divides what is to be a holistic analysis into before and after segments and operates to remove Charter breaches from the analysis, thus placing a heavy finger on the scale of s. 24(2) . The police must have reasonable grounds to believe an individual committed or was about to commit an indictable offence in order to lawfully arrest them without prior judicial authorization.

The reasonable belief must relate to two elements: whether an offence has been committed, and whether the person under arrest committed the offence. The test must be met on both a subjective and an objective basis, which means that it is necessary, but not sufficient, for the police to have a personal, honestly held belief in the presence of reasonable grounds. The Crown must also establish that the asserted grounds were objectively reasonable from the perspective of a reasonable person standing in the position of the officer.

Reasonable grounds is a high threshold that is met at the point where a credibly-based probability replaces suspicion. It requires the police to point to particularized evidence to support an objective basis for the belief which is based on compelling and credible information. Whether the legal standard of reasonable grounds was met on the particular facts of a given case is a question of law to be assessed on a correctness standard. The need to establish reasonable grounds before effecting an arrest is not a mere procedural requirement — it is a constitutional imperative.

An arrest is a key investigative step on which much hinges, both for the police and for the arrestee. It triggers intrusive police powers relating to detention, interrogation, search, and the use of force. Absent reasonable grounds, the intrusion on liberty interests tolerated in the name of the investigation of crime cannot be justified. The reasonable grounds standard is a key constitutional safeguard and must not be watered down for investigative expediency or to salvage an investigation in the face of Charter -infringing conduct.

It is well-recognized that police notes are crucial to the court’s ability to meaningfully review the exercise of police powerwithout prior judicial authorization, including the arrest power. The absence of notes is a factor to be considered in deciding whether toaccept the police officer’s testimony. In reviewing reasonable grounds, the absence of notes may inform the court’s assessment of theofficer’s credibility, which is relevant to both the subjective and the objective elements of the test. Without notes, it is difficult toquestion assertions by the police that they had grounds to arrest the individual.

Notes are therefore critical to checking the exercise ofpolice power by ensuring that statements of personal belief do not go routinely or effectively unchallenged. The absence of notes maytherefore hinder the accused’s ability to challenge the decision to arrest, and the court’s ability to get to the truth of the basis for thatdecision.

In the instant case, the information that the homicide detective explained formed the basis of his decision to arrest theaccused may have given rise to a reasonable suspicion, but to accept that it formed the basis of reasonable grounds to believe that theykilled the deceased would erode the reasonable grounds standard to a level inconsistent with what is required to provide a meaningfulcheck on the state’s investigatory powers in accordance with the Charter’s requirements.

While the assessment is global and does notrequire an isolated parsing of each particular component or a prima facie case to answer on each element of the offence, there must besomething of substance proffered in order to meet the objective reasonable grounds standard. The police have failed to offer asubstantively reasonable basis to support the asserted belief that at the time of the accused’s arrest, there were reasonable grounds tobelieve they had killed the deceased.

In determining whether evidence was “obtained in a manner” that breaches the Charter, courts should examine the entirerelationship between the evidence and the breach to determine the strength of the connection and assess whether the breach and theevidence are part of the same transaction or course of conduct. The connection may be temporal, contextual, causal, or a combination ofthe three. A strict causal connection is not required. Instead, a global assessment is necessary to determine whether a Charter violationoccurred in the course of obtaining the evidence.

The “obtained in a manner” analysis necessitates the full contextual analysis each timeit is performed, regardless of whether subsequent Charter-compliant actions exist. The notion of a “fresh start” is not part of the law in Canada and should not be so recognized. It is unnecessary because theestablished holistic approach is more than adequate to the task. The concept of a “fresh start” detracts from the broad and generousapproach that the Court has adopted for the “obtained in a manner” requirement of s. 24 of the Charter.

Regardless of the presence ofCharter-compliant conduct following a breach, the test must remain the same in every case. Substituting a “fresh start” analysis for acomplete and contextual “obtained in a manner” analysis would create an inflexible test that makes Charter remedies less accessible tothose whose rights were violated. No single rule should disrupt the courts’ remedial inquiry. As with all remedial provisions, s. 24 of the Charter must be given a large and liberal

interpretation consistent with itspurpose. Such an approach is important, as it is the gateway to the focus of s. 24(2): whether the admission of evidence would bring theadministration of justice into disrepute. An overly narrow

interpretation of s. 24(2) would prevent courts from even considering theseriousness of the Charter-infringing conduct, an unwelcome result which would automatically immunize prior Charter breaches. Byshifting the focus to the eventual Charter-compliant conduct, the “fresh start” doctrine distracts from the remedial nature of s. 24(2) andallows police to insulate their conduct from review, regardless of the severity of that conduct.

Because the trial judge erred in concluding that there were reasonable grounds to arrest the accused and in relying on theconcept of a “fresh start”, his conclusion that the evidence was not “obtained in a manner” within the meaning of s. 24(2) of the Charteris not owed deference. There is a strong temporal, contextual, and causal connection between the breaches of the accused’s Charterrights and the collection of their statements.

The accused were under the continuous control and supervision of the police from the timeof their unlawful detention and transportation from the scene, to the time the police unlawfully directed their arrests, to the time theyultimately admitted their involvement in the death of their roommate. The fact that the police would not have obtained the evidence butfor the violation of the accused’s Charter rights supports the conclusion that the Charter breaches and the evidence provided wereinextricably linked.

Analyzing the issue anew, the admission of the evidence would bring the administration of justice into disrepute andtherefore the evidence must be excluded under s. 24(2) of the Charter. The circumstances of the accused’s detention and questioning ledto multiple officers breaching multiple Charter rights. The police conduct was extremely serious, violating foundational Charterprinciples that officers have been bound for decades to follow during the course of an investigation.

There were no circumstances ofuncertainty in the law or urgency in handling a dynamic situation that might explain these basic errors, which fundamentally underminedthe accused’s Charter-protected interests. Considering the strength of these factors, society’s interest in the adjudication of the case onits merits is insufficient to tip the balance in favour of admission. Cases Cited By Jamal J. Applied: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; considered: R. v. Tessier, 2018 ABQB 387, rev’d 2020 ABCA289, 12 Alta. L.R. (7th) 55, rev’d 2022 SCC 35; R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235; R. v.

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C-46, ss. 495, 503(1). Fatality Inquiries Act, R.S.A. 2000, c. F-9. Authors Cited Ewaschuk, E. G. Criminal Pleadings & Practice in Canada, 3rd ed. Toronto: Thomson Reuters, 2022 (loose-leaf updated September2022, release 1). Marin, René J. Admissibility of Statements, 9th ed. Toronto: Thomson Reuters, 1996 (loose-leaf updated September 2022, release 2). McWilliams’ Canadian Criminal Evidence, 5th ed. by S. Casey Hill, David M. Tanovich and Louis P. Strezos, eds. Toronto: ThomsonReuters, 2013 (loose-leaf updated July 2022, release 3). Paciocco, David M., Palma Paciocco and Lee Stuesser.

The Law of Evidence, 8th ed. Toronto: Irwin Law, 2020. Penney, Steven, Vincenzo Rondinelli and James Stribopoulos. Criminal Procedure in Canada, 3rd ed. Toronto: LexisNexis, 2022. Sankoff, Peter J. The Law of Witnesses and Evidence in Canada. Toronto: Thomson Reuters, 1991 (loose-leaf updated September 2022,release 3). Watt, David. Watt’s Manual of Criminal Evidence. Toronto: Thomson Reuters, 2021. APPEALS from a judgment of the Alberta Court of Appeal (O’Ferrall, Wakeling and Feehan JJ.A.), 2020 ABCA 203, 4Alta. L.R. (7th) 301, [2020] 7 W.W.R. 550, 393 C.C.C. (3d) 175, 459 C.R.R. (2d) 105, [2020] A.J.

No. 581 (QL), 2020 CarswellAlta933 (WL), affirming a decision of Yamauchi J., 2019 ABQB 125, 88 Alta. L.R. (6th) 337, [2019] 12 W.W.R. 320, 431 C.R.R. (2d) 14,[2019] A.J. No. 257 (QL), 2019 CarswellAlta 358 (WL). Appeals dismissed, Karakatsanis, Côté, Brown and Martin JJ. dissenting. Sarah Rankin and Kelsey Sitar, for the appellant James Andrew Beaver. Jennifer Ruttan and Michael Bates, for the appellant Brian John Lambert.

Rajbir Dhillon and Andrew Barg , for the respondent. Mabel Lai and Nicholas Hay , for the intervener the Attorney General of Ontario. Samara Secter and Reakash Walters , for the intervener the Canadian Civil Liberties Association. The judgment of Wagner C.J. and Moldaver, Rowe, Kasirer and Jamal JJ. was delivered by Jamal J. — I. Introduction [ 1 ] At the heart of these appeals is the balance between the protection of the rights of the accused in the criminal process and society’s interest in the effective investigation and prosecution of serious crimes.

The appeals raise three issues: (1) the voluntariness of one of the appellants’ confessions under the common law confessions rule; (2) whether the police had reasonable and probable grounds to arrest the appellants for murder; and (3) whether the appellants’ confessions were “obtained in a manner” that breached the Canadian Charter of Rights and Freedoms because the police failed to make a “fresh start” from earlier Charter breaches, and if their confessions were so obtained, whether they must be excluded under s. 24(2) . [ 2 ] The appellants, Brian John Lambert and James Andrew Beaver, shared a townhouse in Calgary with the deceased, Sutton Bowers.

One morning, Lambert called 9-1-1 and alleged that he and Beaver had arrived home to find Bowers dead in a puddle of blood. Lambert told the 9-1-1 operator that they did not know how Bowers had died, but he admitted that there had been “altercations all week”, including the night before when Bowers had told both Lambert and Beaver to “get the hell out” (R.R., at pp. 17-18).

The operator told Lambert that the townhouse would be treated as a crime scene for now. [ 3 ] It is not disputed that the police officers who attended the scene in response to the 9-1-1 call breached the appellants’ Charter rights by detaining them and taking them to the police station without lawful authority. It is also not disputed that when homicide detectives realized that their colleagues had unlawfully detained the appellants, they promptly tried to make a “fresh start” by advising them of their Charter rights and then arresting them for murder.

When questioned separately, the appellants initially denied any knowledge of how Bowers had died. Eventually, however, they both confessed to killing Bowers during a fight, mopping up his blood, and dragging his body to the bottom of the stairs to make his death look like an accident. At issue at trial was the admissibility of these confessions. [ 4 ] At trial, the appellants argued that their confessions were involuntary and thus inadmissible under the common law confessions rule. The appellants also asserted that the police lacked reasonable and probable grounds to arrest them for murder.

In the alternative, the appellants claimed that because the homicide detectives had failed to make a “fresh start” from the Charter breaches that stemmed from the appellants’ unlawful detention, their confessions were obtained in a manner that breached the Charter and must be excluded under s. 24(2) . [ 5 ] On voir dire , the Court of Queen’s Bench of Alberta disagreed with the appellants and admitted their confessions into evidence ( 2019 ABQB 125 , 88 Alta. L.R. (6th) 337).

Based on this decision, the appellants entered an agreed statement of facts in which they admitted their role in the killing and invited the trial judge to convict them as co-principals to manslaughter. The trial judge did so and sentenced each to four years’ imprisonment ( 2019 ABQB 235 ). The Court of Appeal of Alberta dismissed the appellants’ appeals from conviction ( 2020 ABCA 203 , 4 Alta. L.R. (7th) 301) and sentence ( 2021 ABCA 227 ). The appellants now appeal their convictions to this Court with leave. Only Beaver appeals the voluntariness of his confession.

Both Beaver and Lambert claim that their confessions should be excluded under s. 24(2) of the Charter . [ 6 ] I would dismiss the appeals, but for somewhat different reasons than the decisions under appeal. As I will explain, I agree with the lower courts that Beaver’s confession was voluntary and thus admissible under the common law confessions rule. I also agree that the police had reasonable and probable grounds to arrest the appellants for murder.

However, I find that the homicide detectives made a “fresh start” from the Charter breaches arising from the appellants’ unlawful detention for Lambert but not for Beaver. Thus, only Beaver’s confession was obtained in a manner that breached the Charter . Balancing the lines of inquiry under s. 24(2) of the Charter , I conclude that admitting Beaver’s confession into evidence would not bring the administration of justice into disrepute. I would thus confirm the appellants’ convictions for manslaughter. II. Background Facts A.

Three Roommates: Bowers, Lambert, and Beaver [ 7 ] The appellants, Lambert and Beaver, and the deceased, Bowers, were roommates in a townhouse in Calgary. Bowers was the landlord of the property, as his father owned the townhouse and allowed him to live there rent-free and earn income by renting out rooms. Beaver and Lambert were tenants. B. The Suspicious 9-1-1 Call [ 8 ] On October 9, 2016, at 9:59 a.m., Lambert called 9-1-1 to report that “there’s a guy in a puddle of blood . . . inside [his] house” (R.R., at p. 16).

He told the 9-1-1 and Calgary Police Service operators that there had been “altercations all week”, including when he came home the previous night and Bowers “had people there” (p. 17). Lambert said that Bowers “told [him and Beaver] to get the hell out”, so he left with Beaver because he “wasn’t about to get into a confrontation” (pp. 17-18). He claimed that when he returned the next morning, he found Bowers lying “in a puddle of blood”, “face down front [on] the floor” (p. 21). [ 9 ] The Calgary Police Service operator told Lambert that the situation would be treated with “just a little bit of a

suspicion because [they] don’t know what’s goin’ on at this point” (pp. 24-25). Lambert insisted he did not know what happened to Bowers, repeating “[h]e was pretty angry at us, so we just left” (p. 25). Lambert then confirmed that Bowers was not conscious or breathing, and advised that Beaver said that “he looks like he fell and hit his head” (p. 26). The Calgary Police Service operator said that they would “treat [the townhouse] as a crime scene for now” (p. 27).

While awaiting emergency medical services, the 9-1-1 operator told Lambert to perform CPR, but Lambert advised that rigor mortis had set in, adding: “He’s dead” (p. 36). C. The Police Find Bowers Dead [ 10 ] Within minutes, police and emergency medical services arrived and found Bowers at the foot of the staircase, where he lay dead. The senior police officer, Sgt. James Lines, directed that this was a crime scene. He ordered two other officers, Csts.

Trent Taylor and Alana Husband, to detain Lambert and Beaver under the Medical Examiners Act , legislation that he admitted on the voir dire does not exist; he had meant to refer to Alberta’s Fatality Inquiries Act , R.S.A. 2000, c. F-9 , but this Act provides no detention powers. D. The Police Detain Lambert [ 11 ] As directed, Cst. Taylor told Lambert that he was being detained under the Medical Examiners Act .

He advised Lambert that he had the right to retain and instruct a lawyer without delay and cautioned him, saying that he could be charged with an offence and that he did not have to say anything but anything he did say could be used in evidence. Lambert said that he understood the caution and wanted to speak to a lawyer “to cover [his] ass”, even though he was “not guilty of anything” (A.R., vol. I, at p. 95). [ 12 ] While Cst. Taylor drove Lambert to police headquarters, he asked him what had happened. Lambert repeated what he had told the 9-1-1 operator. On the voir dire , Cst.

Taylor conceded that he had “messed up” and that he should not have questioned Lambert during the drive because he had asked to speak to a lawyer (p. 109). At no point did Cst. Taylor place Lambert under arrest. E. The Police Detain Beaver [ 13 ] Cst. Husband placed Beaver in her police car. When Beaver was alone in the car, the car video recorded him saying, “[t]hey’re gonna take my statement” (A.R., vol. III, at p. 26). Cst. Husband then told him: “I just have to read you the legalities here. . . . I am investigatively, detaining you for, uh, whatever’s going on in there, (laughing)” (p. 28).

She advised Beaver of his right to retain and instruct a lawyer without delay and asked him if he wanted to contact a lawyer. He responded, “I don’t need one. . . . No” (p. 30). Cst. Husband repeated that Beaver was being “investigatively detained” and cautioned him, saying that he did not have to say anything but anything he did say could be used in evidence (p. 30). Beaver said he understood. [ 14 ] When Cst. Husband asked Beaver what had happened, he responded with a narrative consistent with Lambert’s 9-1-1 call.

She then drove him to police headquarters, told him he was still under investigative detention, and asked him again if he wanted to speak to a lawyer. Once again, he declined. At no point did Cst. Husband place Beaver under arrest. F. The Arrival of a Seasoned Homicide Detective [ 15 ] Soon afterwards, a medical investigator from the Office of the Chief Medical Examiner contacted the Calgary Homicide Unit to communicate that Bowers’ death appeared suspicious. At 10:36 a.m., S/Sgt. Colin Chisholm telephoned Det. Christian Vermette, a seasoned homicide detective, and told him to come to work.

On the voir dire , Det. Vermette testified that he was “basically [being called out to work] on a suspicious death” because it was his “turn to be the primary investigator for the next homicide” (A.R., vol. I, at p. 207). He testified that S/Sgt. Chisholm, who had spoken to the medical investigator, “basically relayed . . . that a male was found facedown in a pool of blood near the front entrance of a residence” and “that there was some sort of conflict or dispute that occurred between the victim and roommates” (p. 205). Det.

Vermette’s impression at this point was that the two roommates were under arrest and on their way to police headquarters. [ 16 ] At 10:46 a.m., Det. Vermette received an email from S/Sgt. Chisholm with the subject line “Looks like New homicide” and which confirmed what the Staff Sergeant had just told him by phone. [ 17 ] At 11:22 a.m., Det. Vermette arrived at police headquarters, and at 11:39 a.m., he met with Csts. Taylor and Husband, who told him that Lambert and Beaver had been “ Charter ed and cautioned” (p. 210). Det.

Vermette then “review[ed] the file”, which included an Event Information document that summarized the 9-1-1 call and an Event Chronology document that detailed the events after the 9-1-1 call and included contemporaneous police comments (p. 209). He also reviewed a Police Information Management System report, which noted that three days earlier the police had attended at the townhouse because Lambert had reported that Bowers assaulted him but that he did not want charges laid and would not provide a statement.

The Police Information Management System report stated that Lambert planned to move out within the next two weeks and that he did not want the police to speak to Bowers. G. Lambert and Beaver Arrive at Police Headquarters [ 18 ] At 11:15 a.m., Lambert and Beaver arrived at police headquarters. Lambert spoke to a lawyer by telephone. Beaver declined the opportunity to do so. [ 19 ] Two homicide investigators, Dets. Matthew Demarino and Reagan Hossack, were tasked with interviewing Lambert and Beaver, respectively. [ 20 ] At 12:09 p.m., Det.

Demarino, who believed that Lambert and Beaver were already under arrest, began interviewing Lambert. He confirmed that Lambert had spoken to a lawyer and that he understood his lawyer’s advice. Det. Demarino advised Lambert that, regardless of anything anyone had previously told him, he did not have to say anything unless he wished to do so, but anything he did say could be used in evidence. He then repeated this caution once more and Lambert indicated that he understood. Det. Demarino also informed Lambert that his interview was being recorded. [ 21 ] Det. Demarino asked Lambert if he knew the deceased.

At first, Lambert responded that he “[d]on’t wanna talk about

nothin’”, saying that the police “have ways to figure out who [the deceased] is without [him] having to talk to [them] about it” (A.R., vol. II, at pp. 7-8). Later, he confirmed that the deceased was his roommate, Bowers. [ 22 ] When Det. Demarino left the interview to give this information to the homicide team, he spoke with Cst. Husband. It was only at this time that Det. Demarino learned that neither Lambert nor Beaver had been arrested. At this point, Beaver’s interview had not yet begun. [ 23 ] At about 12:20 p.m., Det. Vermette was advised that neither Beaver nor Lambert had been arrested.

At 12:22 p.m., Det. Vermette directed Dets. Demarino and Hossack to arrest Lambert and Beaver for murder. When making this direction, Det. Vermette believed that he had reasonable and probable grounds to do so. H. Lambert Is Arrested for Murder [ 24 ] At 12:29 p.m., Det. Demarino arrested Lambert for murder and then continued to interview him, underscoring that “this is a very, very serious matter” (p. 17). Det.

Demarino tried to distance his interaction with Lambert from the earlier unlawful conduct by (1) telling him they were going to “start from the very beginning” (p. 17); (2) telling him four times he was under arrest for murder; (3) facilitating Lambert’s second consultation with a lawyer and confirming that he understood his lawyer’s advice; (4) repeating that they “have to start everything all over again” (p. 30) after Lambert consulted a lawyer; and (5) providing him with a primary caution three times during the interview (i.e., that he did not have to say anything unless he wished to do so but whatever he did say could be used in evidence) and a secondary caution (i.e., that his decision on whether to speak to the police should not be influenced by anything he had already told the police or that the police had told him).

I. Beaver Is Arrested for Murder [ 25 ] At roughly the same time, Det. Hossack arrested Beaver for murder. Unlike Det. Demarino, however, Det. Hossack did not caution Beaver again. Instead, she referred to Cst. Husband’s earlier caution, saying, “it’s no different than what uh, Constable Husband read to you [a] little while ago” (A.R., vol. III, at p. 51). She said that she was “just reading it ’cause [she’s] a new person that [he’s] gonna be talking to” (pp. 51-52). (At the voir dire , Det. Hossack acknowledged that her failure to caution Beaver was “a mistake, an error, on [her] part” (A.R., vol.

I, at p. 185).) Det. Hossack advised Beaver of his right to retain and instruct counsel without delay, but Beaver declined to speak to a lawyer, saying he did not think he needed one. He then added that he “probably should” speak with a lawyer and that he was “not understanding the severity of it” (A.R., vol. III, at p. 53). Det. Hossack emphasized to Beaver that it was up to him whether he spoke to a lawyer and reminded him that he was being questioned because “someone was found dead in the apartment” and that he had “been brought [to the police headquarters] because [he was] there” (p. 53). Det.

Hossack then repeated, “it’s just important that you know that you can call a lawyer right now” (p. 54), and then said, once again, “it’s important that you know that if you wanna call a lawyer you can” (p. 55). Beaver insisted that he did not need a lawyer and formally waived his right to counsel. J. Det. Vermette Confirms His Earlier Decision to Arrest the Appellants [ 26 ] At 12:35 p.m., just a few minutes after Det.

Vermette had directed that the appellants be arrested for murder, he learned that Bowers had sent Facebook messages to a friend the previous evening highlighting his conflicts with Beaver and Lambert: 6:36 p.m. im taking brian and jim down they fucked me 9:13 p.m. I just destroyed brian and jim now I can get some worthy roommates any suggestions (R.R., at p. 45) [ 27 ] These messages confirmed Det. Vermette’s earlier decision to arrest the appellants. K. After Police Questioning, Lambert Confesses [ 28 ] Det. Demarino questioned Lambert for over 12 hours.

At first, Lambert maintained that he had found Bowers dead in the townhouse and that he had nothing to do with his death. But at the tail end of the interview, Det. Demarino confronted Lambert with inculpatory evidence that led him to confess that Bowers had died during a fight with him and Beaver. L. After Seeing a Video of Lambert’s Confession, Beaver Confesses [ 29 ] During the first 12 hours of his interview, Beaver also maintained that he had nothing to do with Bowers’ death.

He insisted that he did not remember details of events that took place before his arrival at the police headquarters because he had been drinking the night before. He continued to cite his poor memory even when he was shown Lambert’s videotaped confession. Det. Hossack’s interviewing style then became more confrontational. She called Beaver’s memory lapse “bullshit” and said “people . . . don’t forget stuff like this” (A.R., vol. III, at p. 282). Within another hour of questioning, Beaver confessed, admitting that Bowers had died during a fight with him and Lambert. M.

Beaver and Lambert Are Charged With Manslaughter and Obstruction of Justice [ 30 ] Beaver and Lambert were charged with manslaughter for their involvement in Bowers’ death and obstruction of justice for misleading the police in the investigation into Bowers’ death. III. Judgments Below

A. Court of Queen’s Bench of Alberta (Yamauchi J.)

(1) The Voir Dire Ruling, 2019 ABQB 125, 88 Alta. L.R. (6th) 337 [31] On a blended voir dire, the trial judge held that the Crown had proved the voluntariness of the appellants’ confessionsbeyond a reasonable doubt and that neither of their confessions should be excluded under s. 24(2) of the Charter. [32] First, the trial judge held that Beaver’s confession to Det. Hossack was voluntary. Applying R. v.

Oickle, 2000 SCC38, [2000] 2 S.C.R. 3, the trial judge concluded that Beaver had an operating mind and that the police did not extract his confessionthrough threats, promises, police trickery, or oppressive tactics (paras. 82 and 94-95). Nothing Det. Hossack did during the interviewbroke Beaver’s will; “[w]hat did break his will was the version of events that Mr. Lambert had provided to Det. Demarino” (para. 96).Det. Hossack’s failure to repeat the police caution that Cst.

Husband previously provided did not deprive Beaver of a meaningful choiceas to whether to speak to the police, since “[t]here is no requirement that the police repeat the caution” if the accused “already indicatesthat he understands his right to refuse to answer questions” (para. 92). [33] Second, the trial judge held that the police had reasonable and probable grounds to arrest both appellants for murder.Det. Vermette subjectively believed he had reasonable and probable grounds to arrest the appellants (at para. 151), and his belief wasobjectively reasonable “based on the trauma that Mr.

Bower[s] suffered, the motive that [the appellants] had, and the opportunity [theyhad] to carry out their objectives” (para. 159). [34] Third, the trial judge held that the homicide detectives “cured” the Charter breaches arising from the appellants’unlawful detention by making a “fresh start” and arresting the appellants for murder at the police headquarters (paras. 191 and 209). TheCrown conceded and the trial judge found that the police breached ss. 9, 10(a), and 10(

b) of the Charter in their initial interactions withthe appellants. The appellants were unlawfully detained contrary to s. 9 of the Charter because there was no statutory basis to detainthem or any basis to place them under investigative detention at common law (paras. 149 and 229). Their ss. 10(

a) and 10(

b) Charterrights were also breached because they did not know the jeopardy they faced after being detained under non-existent legislation(paras. 183 and 188). Finally, Lambert’s s. 10(

b) Charter right was further infringed when Cst. Taylor asked him what had happenedafter Lambert said he wanted to speak to a lawyer (para. 185). Nevertheless, the “fresh start” made by the homicide detectives meant thatthe appellants’ confessions were not “obtained in a manner” that breached the Charter. There was thus no need to consider s. 24(2)(paras. 209 and 215). [35] Fourth, in the alternative, the trial judge held that admitting the appellants’ confessions would not bring theadministration of justice into disrepute (para. 254).

Although the seriousness of the Charter-infringing state conduct in the initial policeinteractions favoured excluding the confessions, the minimal impact of the breaches on the appellants’ Charter-protected interests andsociety’s interest in adjudicating the case on the merits “tip[ped] the balance in favour of admission” under s. 24(2) (para. 259).

(2) The Trial Decision [36] With the confessions admitted into evidence, the parties submitted an agreed statement of facts inviting the trial judgeto convict Lambert and Beaver for manslaughter and to make the following factual findings and inferences:

(1) Lambert and Beaververbally argued with Bowers about the rent for the townhouse; (2) the argument turned into a violent scuffle involving all three men,resulting in Bowers’ death from “blunt force trauma to the neck”; (3) “[t]he force used by Lambert and Beaver caused the death ofBowers”;

(4) Lambert and Beaver placed Bowers’ body at the bottom of the stairs and mopped up the blood to mislead the authoritiesabout how he died; and

(5) Lambert and Beaver “had an agreement as to what to falsely tell the authorities, and did so starting withLambert’s 911 call” (R.R., at p. 48). [37] The trial judge accepted the agreed statement of facts, made the invited factual findings and inferences, and convictedthe appellants of manslaughter. The Crown then stayed the obstruction of justice charges. [38] The trial judge sentenced the appellants to four years’ imprisonment, less credit for pretrial custody, and imposedvarious ancillary orders (2019 ABQB 235, paras. 78-81 ).

He found that the appellants killed Bowers in a “two on one” attackinvolving “gratuitous violence” (para. 31) and noted that they made a failed attempt to feign an accident by moving Bowers’ body to thebottom of the stairs. The trial judge concluded that the gravity of the offence and moral culpability of both appellants was “very high”(paras. 31 and 48-49). B. Court of Appeal of Alberta, 2020 ABCA 203, 4 Alta. L.R. (7th) 301 (O’Ferrall, Wakeling and Feehan JJ.A.) [39] The Court of Appeal dismissed the conviction appeals.

There was no reviewable error in the trial judge’s assessmentof voluntariness (paras. 30-31). The police also had reasonable and probable grounds to arrest the appellants for murder and “made apractical and common-sense decision” to arrest them “based on the information [Det. Vermette] had received by the time of the arrests”(para. 9). [40] The Court of Appeal agreed that the homicide detectives made a “fresh start” in arresting the appellants, such thattheir confessions were not “obtained in a manner” that breached the Charter (paras. 15 and 18).

The police gathered little evidence ofsignificance when the appellants were unlawfully detained, and the homicide detectives tried to insulate any subsequent evidence theymight gather from the earlier Charter breaches (para. 17). There was “no causal connection” between any Charter breach and theconfessions, “arguably no temporal connection”, and “the context in which the confessions were given was completely different from theinitial detention and early general questions” (para. 26).

There was thus no need to consider whether the trial judge erred in hisalternative s. 24(2) analysis (para. 27). [41] The Court of Appeal later dismissed the sentence appeals (2021 ABCA 227). IV. Issues

[42] These appeals raise three issues: A. Was Beaver’s confession voluntary? B. Did the police have reasonable and probable grounds to arrest the appellants for murder? C. Should the appellants’ confessions be excluded under s. 24(2) of the Charter? V. Analysis A. Was Beaver’s Confession Voluntary? [43] Before this Court, only Beaver challenges the voluntariness of his confession. He argues that his confession wasinvoluntary and therefore inadmissible under the common law confessions rule. Beaver notes that the trial judge was the same trial judgeas in R. v.

Tessier, 2018 ABQB 387, a decision that the Court of Appeal of Alberta overturned as reflecting “an impoverishedunderstanding of the modern confessions rule” (2020 ABCA 289, 12 Alta. L.R. (7th) 55, at para. 46). Since then, however, a majority ofthis Court, per Kasirer J., has overturned the Court of Appeal’s decision (2022 SCC 35 (“Tessier (SCC)”)). [44] As I will elaborate, I do not accept that Beaver’s confession was involuntary. It therefore need not be excluded underthe common law confessions rule.

(1) The Common Law Confessions Rule (

a) General Principles [45] The common law confessions rule provides that a confession to a person in authority is presumptively inadmissible,unless the Crown proves beyond a reasonable doubt that the confession was voluntary (Oickle, at paras. 30 and 68; R. v. Spencer, 2007SCC 11, [2007] 1 S.C.R. 500, at para. 11; Tessier (SCC), at paras. 39, 68 and 89). Under the confessions rule, an involuntary confession“always warrants exclusion” (Oickle, at para. 30; see also R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 38). But a voluntaryconfession need not always be admitted into evidence.

If a voluntary confession was obtained in a manner that breached the Charter, itcan still potentially be excluded under s. 24(2) (Oickle, at para. 30; Singh, at para. 38). [46] At the heart of the confessions rule is the delicate balance between individual rights and collective interests in thecriminal justice system (Singh, at paras. 1, 21, 27-28, 31 and 34; Tessier (SCC), at paras. 4 and 69; Oickle, at para. 33). The “twin goals”of the rule involve “protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes” (Oickle,at para. 33).

On the one hand, the common law recognizes an individual’s right against self-incrimination and right to remain silent, suchthat an individual need not give information to the police or answer their questions absent statutory or other legal compulsion; on theother hand, the police often need to speak to people when discharging their important public responsibility to investigate and solve crime. [47] Voluntariness, broadly defined, is the “touchstone” of the confessions rule (Oickle, at paras. 27, 32 and 69; Spencer,at para. 11; Singh, at para. 31).

Voluntariness is a shorthand for a complex of values engaging policy concerns related to not only thereliability of confessions, but also to respect for individual free will, the need for the police to obey the law, and the fairness and reputeof the criminal justice system. Involuntary confessions can be unreliable, unfair, and harmful to the reputation of the criminal justicesystem (Oickle, at paras. 32 and 70; Singh, at paras. 30 and 34; Tessier (SCC), at paras. 70 and 72).

A statement may be involuntary“because it is unreliable and raises the possibility of a false confession, or because it was unfairly obtained and ran afoul of the principleagainst self-incrimination and the right to silence” (Tessier (SCC), at para. 70). [48] The application of the confessions rule is necessarily flexible and contextual.

When assessing the voluntariness of aconfession, the “trial judge must determine, based on the whole context of the case, whether the statements made by an accused werereliable 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 inauthority” (Tessier (SCC), at para. 68).

The trial judge must consider all relevant factors, including the presence of threats or promises,the existence of oppressive conditions, whether the accused had an operating mind, any police trickery that would “shock thecommunity”, and the presence or absence of a police caution. These factors are not a checklist that supplants a contextual inquiry (seeOickle, at paras. 47, 66-67 and 71; Spencer, at paras. 11-12; Singh, at para. 35; Tessier (SCC), at paras. 5, 68, 76 and 87). (

b) Oppression [49] Oppression focusses on the atmosphere of a police interview. This Court has accepted that “[o]ppression clearly hasthe potential to produce false confessions” because a suspect may “confes[s] purely out of a desire to escape [inhumane] conditions”(Oickle, at paras. 58 and 60). The non-exhaustive factors that can create oppressive conditions include depriving the suspect of food,clothing, water, sleep, or medical attention; denying access to counsel; or excessively aggressive, intimidating police questioning for along time (Oickle, at paras. 58-60; Tessier (SCC), at para. 99). (

c) The Role of a Police Caution [50] The role of a police caution in the voluntariness analysis was recently clarified in Tessier (SCC), where Kasirer J.affirmed, at para. 5, that “the presence or absence of a police caution is an ‘important’ factor in answering the question of voluntariness”,based on Charron J.’s guidance in Singh, at para. 33 (see also Singh, at para. 31; Boudreau v.

The King, (SCC), [1949]S.C.R. 262, at p. 267). [51] In Tessier (SCC), Kasirer J. explained that if the accused was a suspect, the absence of a caution is prima facieevidence of — but does not itself establish — involuntariness (paras. 11 and 89). Neither a caution nor proof of actual knowledge of theright to silence is a necessary condition of voluntariness (Tessier (SCC), at paras. 12 and 74; see also Singh, at paras. 31 and 33;Boudreau, at p. 267). Nevertheless, the absence of a caution “weighs heavily” in the voluntariness analysis because it is “prima facie

evidence that the suspect has been unfairly denied their choice to speak to the police and that, as a consequence, the statement cannot beconsidered voluntary” (Tessier (SCC), at para. 11). [52] When the police have not given a caution, the Crown must “show that the absence of a caution did not undermine thesuspect’s free choice to speak to the police as part of the contextual examination of voluntariness” (Tessier (SCC), at para. 8). Theabsence of a caution may be afforded less weight when the suspect subjectively understood the right to silence or the consequences ofspeaking to the police.

Kasirer J. provided the following guidance in Tessier (SCC), at para. 88: While not necessary for the Crown to demonstrate, proof that the accused was in fact subjectively aware of their right to silence or awareof the consequences of speaking will be powerful evidence that the absence of a caution did not undermine voluntariness.

In such aninstance, doubts as to fairness that could result from the absence of a caution plainly do not arise because the suspect has the informationnecessary to choose whether to speak or remain silent. [53] Some of the non-exhaustive factors that can help show the suspect was subjectively aware of their right to silence orof the consequences of speaking to the police include (1) the suspect’s awareness of being recorded; (2) indications that the suspect isdirecting the conversation; (3) the suspect’s awareness of what is being investigated and their alleged role in the investigation; (4) thesuspect’s exercise of the right to silence by declining to answer police questions; and (5) the suspect’s eagerness to talk, although thisfactor can weigh for and against such a finding, depending on the circumstances (Tessier (SCC), at para. 88). [54] Absent an error of law in relation to the applicable legal principles, a trial judge’s application of the voluntarinessframework is a question of fact or of mixed fact and law attracting appellate deference (Oickle, at para. 22; Spencer, at paras. 16-18;Tessier (SCC), at para. 46).

Mere disagreement with the weight given to various items of evidence is not a basis to reverse a trial judge’sfinding of voluntariness (Oickle, at para. 22).

(2) Application [55] Beaver claims that the trial judge and the Court of Appeal erred by taking a narrow approach to voluntariness thatmerely glossed over whether he had been denied his right to silence or had made a meaningful choice to speak with the police. He claimsthat the trial judge mechanically reviewed a checklist of voluntariness factors without considering the more fundamental question ofwhether he could make a meaningful choice to speak to the police when he was not informed of his jeopardy or properly advised that hehad a choice about whether to give a statement.

He also says that the duration of his interview and Det. Hossack’s “interview strategy”created an oppressive atmosphere. Lastly, he contends that the Court of Appeal improperly deferred to the trial judge’s finding ofvoluntariness without independent scrutiny. [56] As I will explain, I disagree with Beaver’s submission that his confession was involuntary. (

a) The Trial Judge Correctly Stated the Law and Concluded That Beaver’s Confession Was Voluntary Based on Three Findings ofFact [57] As the Court of Appeal held (at paras. 28-29), the trial judge correctly cited the general legal principles ofvoluntariness from Oickle and Singh (paras. 43-46). He properly noted that voluntariness is the touchstone of the confessions rule andmust be examined contextually (para. 44). He also correctly stated that although an individual has the right to remain silent, this does notmean that they have a right not to be spoken to by the police (para. 45).

Absent any identifiable legal error in the trial judge’s statementof the relevant legal principles, Beaver’s real quarrel is with how the trial judge applied these principles when concluding that hisconfession was voluntary. [58] In my view, the trial judge made three findings of fact that justified his conclusion that Beaver’s confession wasvoluntary:

(1) Beaver was given a police caution and understood that he did not have to speak to the police and that anything he saidcould be used in evidence;

(2) Beaver knew exactly why the police were interviewing him after he was arrested for murder, whichundermines his argument that he did not know the jeopardy he faced when he was arrested; and

(3) Beaver confessed because he wasconfronted with Lambert’s videotaped confession. I will address each finding in turn. (

i) Beaver Was Given a Police Caution and Understood It [59] First, the trial judge found as fact that Beaver was given a police caution and understood it (paras. 90-91). He wasgiven a police caution at the scene, even if only when he was unlawfully detained. Cst. Husband used standard wording, telling him:“You’re not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence” (A.R., vol. III, at p. 30;see also Singh, at para. 31; R. v. Manninen, (SCC), [1987] 1 S.C.R. 1233, at p. 1237).

This caution informed Beaver ofhis right to remain silent “in plain language” (Singh, at para. 31). [60] The trial judge appreciated that the question before him was whether Beaver’s confession was voluntary, even thoughDet. Hossack did not caution Beaver during her interview at the station but referred back to Cst. Husband’s caution at the scene(paras. 90-91). The trial judge stated that “[t]here is no requirement that the police repeat the caution more than once if the accusedperson already indicates that he understands his right to refuse to answer questions” (para. 92). [61] Here, the fact that Det.

Hossack did not caution Beaver again upon his arrest is not “prima facie evidence that thesuspect has been unfairly denied their choice to speak to the police” (Tessier (SCC), at para. 11). Unlike the accused in Tessier, Beaverhad been cautioned and understood the caution. Even if it would have been preferable for Det. Hossack to have repeated the cautionwhen Beaver was arrested for murder, a caution is not a condition of voluntariness (Tessier (SCC), at para. 89).

Put otherwise, theabsence of a caution in itself does not “bind the hands of the Court” by automatically rendering a subsequent confession involuntary(Boudreau, at p. 267, quoted by Charron J. in Singh, at para. 31). (ii) Beaver Knew the Police Were Interviewing Him in a Murder Investigation and Subjectively Understood the Consequences ofSpeaking With the Police

[62] Second, and relatedly, the trial judge found as fact that Beaver knew why Det. Hossack was interviewing him after hehad been arrested for murder and what he would be questioned about (paras. 83, 93 and 246). Before proceeding with the interview,Det. Hossack told Beaver “right now you’re under arrest for murder” (A.R., vol. III, at p. 51; ABQB voir dire reasons, at para. 93).

Thus,even though Beaver did not know his jeopardy when he was unlawfully detained, he did know his jeopardy when he was arrested. [63] Beaver subjectively knew the consequences of speaking with the police upon his arrest (Tessier (SCC), at para. 88).For example, in formally waiving his right to counsel, Beaver confirmed that he understood that Det. Hossack could only take astatement from him if Det. Hossack was sure that Beaver did not want to exercise his right to contact a lawyer and that any statement hegave could be used in evidence against him. Det.

Hossack also told Beaver four times that everything he said was being recorded, whichBeaver acknowledged. Beaver then initiated the conversation by asking Det. Hossack, “[o]kay, where should I start? How ‘boutyesterday?” (A.R., vol. III, at p. 58). [64] Because the trial judge found as fact that Beaver “knew exactly why Det. Hossack was interviewing him” (para. 93),this is a case in which “doubts as to fairness . . . from the absence of a caution plainly do not arise” (Tessier (SCC), at para. 88). [65] Even so, Beaver argues that Det.

Hossack unfairly deprived him of a meaningful choice about whether to speak to thepolice. He says that Det. Hossack was “deliberately casual” when arresting him for murder, including by telling him the caution was “nodifferent than what uh, Constable Husband read to [him]” and that being arrested “doesn’t mean [he’s] gonna be charged with anything.All that means is right now . . . that [he] can’t leave, ‘kay?” (Beaver factum, at para. 37; A.R., vol. III, at p. 51). It is this “pernicious”language that Beaver impugns (Beaver factum, at para. 37). [66] I do not agree. It was legally and factually accurate for Det.

Hossack to tell Beaver that being arrested for murder didnot necessarily mean he would be charged with murder (see R. v. Brown, 2015 ONSC 3305, at para. 124 ). Beaver also says thatDet. Hossack sent a mixed signal about the jeopardy he faced after he had been arrested for murder by saying “in a cautionary way [they]have to charter everyone” (Beaver factum, at para. 37; A.R., vol. III, at p. 54). But the trial judge referred to and weighed all thesestatements in finding that Beaver “knew exactly why Det. Hossack was interviewing him”. This Court must defer to that finding (Housenv.

Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 15-18). In effect, Beaver is asking this Court to reweigh the evidence toreverse the trial judge’s finding of voluntariness. I would decline to do so. (iii) Beaver’s Interview Was Not Oppressive [67] Lastly, the trial judge found as fact that the circumstances of Beaver’s interview were not oppressive (paras. 95-96). Idisagree with Beaver’s claim that Det. Hossack created an oppressive atmosphere by asking increasingly confrontational questionsduring an interview that spanned 13 hours.

Although Beaver’s interview was long, it was not the type of “excessively aggressive andintimidating” interview contemplated as oppressive in Oickle (Tessier (SCC), at para. 99). The trial judge described the interview as“conversation[al]” in nature and highlighted that Det. Hossack was “respectful” when interviewing Beaver, before becoming only“somewhat more confrontational” when presenting him with Lambert’s videotaped confession (para. 95).

Although the trial judgeaccepted that, in principle, “subjecting the accused person to aggressive and prolonged questioning” can be an oppressive tactic affectingvoluntariness (at para. 94), he found as fact that the atmosphere of the interview did not “break [Mr. Beaver’s] will” (para. 96). Instead,the trial judge found that what broke Beaver’s will was having to face “the version of events that Mr. Lambert had provided toDet. Demarino” in the videotaped confession (para. 96). (

b) Conclusion: Beaver’s Confession Was Voluntary [68] The trial judge properly applied the relevant legal principles in deciding that Det. Hossack’s interview of Beaverraised no concern as to the voluntariness of his confession. Because Beaver has not established that any palpable and overriding errorinfected the trial judge’s findings of fact, I must defer to his conclusion that Beaver’s confession was voluntary. B.

Did the Police Have Reasonable and Probable Grounds to Arrest the Appellants for Murder? [69] The second issue is whether the police had reasonable and probable grounds to arrest the appellants for murder. It isuncontested that Det. Vermette instructed the homicide detectives to arrest the appellants after they had been arbitrarily detained for justover two hours.

The appellants claim that courts should be vigilant when considering whether the police had reasonable and probablegrounds to make an arrest following an unlawful detention in order to “protect against abuses of power inherent when police are activelyviolating an arrestee’s Charter rights” (Lambert factum, at para. 36). [70] As I will elaborate, even with this vigilance in mind, I do not accept that the appellants’ arrest for murder wasunlawful.

(1) Legal Principles Governing a Warrantless Arrest [71] The police have statutory authority to arrest a person without a warrant under s. 495 of the Criminal Code, R.S.C.1985, c. C-46. The applicable part of s. 495 in this appeal, s. 495(1)(a), allows a peace officer to arrest a person without a warrant if, onreasonable grounds, they believe the person has committed or is about to commit an indictable offence. [72] The essential legal principles governing a warrantless arrest are settled: 1. A warrantless arrest requires subjective and objective grounds to arrest.

The arresting officer must subjectively havereasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint (R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, at pp. 250-51; R. v. Latimer, (SCC), [1997] 1 S.C.R. 217, at para. 26; R. v.Tim, 2022 SCC 12, at para. 24). 2. In assessing the subjective grounds for arrest, the question is whether the arresting officer honestly believed that thesuspect committed the offence (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 17). Subjective grounds for arrest are often

established through the police officer’s testimony (see, for example, Storrey, at p. 251; Latimer, at para. 27; Tim, at para. 38). Thisrequires the trial judge to evaluate the officer’s credibility, a finding that attracts particular deference on appeal (R. v. G.F., 2021 SCC 20,at para. 81; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at para. 4). 3. The arresting officer’s subjective grounds for arrest must be justifiable from an objective viewpoint.

This objectiveassessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of thesituation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arrestingofficer (Storrey, at pp. 250-51; Latimer, at para. 26; Tim, at para. 24). 4. Evidence based on the arresting officer’s training and experience should not be uncritically accepted, but neither should itbe approached with “undue scepticism” (R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 64-65).

Although the analysis isconducted from the perspective of a reasonable person “standing in the shoes of the [arresting] officer”, deference is not necessarilyowed to their view of the circumstances because of their training or experience (R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, atparas. 45 and 47; MacKenzie, at para. 63). The arresting officer’s grounds for arrest must be more than a “hunc[h] or intuition” (Chehil,at para. 47). 5.

In evaluating the objective grounds to arrest, courts must recognize that, “[o]ften, the officer’s decision to arrest must bemade quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must makehis or her decision based on available information which is often less than exact or complete” (R. v. Golub (1997), (ON CA), 34 O.R. (3d) 743 (C.A.), at p. 750, per Doherty J.A.).

Courts must also remember that “[d]etermining whether sufficientgrounds exist to justify an exercise of police powers is not a ‘scientific or metaphysical exercise’, but one that calls for the application of‘[c]ommon sense, flexibility, and practical everyday experience’” (R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 22, perFairburn J.A. (as she then was), citing MacKenzie, at para. 73). 6. “Reasonable and probable grounds” is a higher standard than “reasonable suspicion”. Reasonable suspicio

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