Her Majesty the Queen - v. -, 2017 SKPC 98

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 098 Date: December 20, 2017 Information: 90103660 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - E.B.R. Appearing: Lori O’Connor For the Crown Heather D.

Franklin For the Accused Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act, or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act. DECISION ON VOIR DIRE K.A. LANG , J I.

Introduction [ 1 ] E.B.R. is charged as follows: On or between the 1 st day of August, A.D. 2015 and the 31 st day of August, A.D. 2015, at Strasbourg in the Province of Saskatchewan, did for a sexual purpose invite S.B., a person under the age of sixteen years to touch directly with a part of her body to wit her hand, the body to wit the penis of E.B.R. contrary to

Section 152 of the Criminal Code of Canada .

[ 2 ] The trial of this matter commenced on October 17, 2017 at which time the Court immediately moved into a voir dire to determine the admissibility of a statement given to the police by the accused. During the voir dire the Court heard testimony from Cpl. Carrie McCoombs as well as the accused, E.B.R. [ 3 ] The voir dire was adjourned for argument to November 22, 2017 and then adjourned to this date for a decision on the voir dire . II. Facts [ 4 ] E.B.R. was 18 years of age at the time of the alleged incident.

The complainant, S.B. was approximately four years old. [ 5 ] The alleged incident occurred in August 2015. Cpl. McCoombs only received the file for investigation on December 9, 2015. [ 6 ] Cpl. McCoombs was made aware of the alleged incident after speaking with S.B.’s mother. Cpl. McCoombs interviewed S.B. for over one hour. S.B. did not disclose any information to Cpl. McCoombs that would support any charges being laid. [ 7 ] Cpl. McCoombs then contacted the accused advising him about her investigation and asking him, “if he could come in and give me his side of what happened that day”.

After some rescheduling, on January 30, 2016 E.B.R. attended to the Southey Detachment, at the request of Cpl. McCoombs, to be interviewed relating to the allegations of sexual interference and touching. [ 8 ] At the time Cpl. McCoombs requested the attendance of E.B.R. to the Southey Detachment, she was aware that she had no admissible evidence upon which to base a criminal charge. Cpl.

McCoombs candidly testified that had E.B.R. refused to come in to be interviewed, nothing further could have occurred with respect to the investigation and presumably therefore, no charges would or could have been laid given there simply would have been no evidence to support any type of charge. In my view this was significant because Cpl. McCoombs was mindful, from the outset, that but for a full confession being extracted from the accused, no charges could have been laid. [ 9 ] On January 30, 2016, E.B.R. attended the Southey Detachment. E.B.R. drove to the detachment on his own and at the request of Cpl.

McCoombs, in order to give his side of the story. [ 10 ] On January 30, 2016, Cpl. McCoombs was the only member working at the Southey Detachment. She was in full police uniform, complete with bulletproof vest, duty belt, and side arm, all of which would have been visible to E.B.R. [ 11 ] Upon his arrival at the Southey Detachment E.B.R. was taken to the “Hard Room” as that room is described in the videotape. Cpl. McCoombs entered the room then closed the door but clearly expressed to E.B.R. that the door was not locked and that he could get up and leave at any time.

Having said that, it was also notable that Cpl. McCoombs was seated in such a fashion that she was between E.B.R., who was seated in the corner of the Hard Room, and the door. Cpl. McCoombs testified that she wanted to control the room. [ 12 ] Cpl. McCoombs then reviewed with E.B.R. the offences for which she was investigating him and she advised him that he could be charged with those offences. E.B.R. indicated he understood. Cpl.

McCoombs also had E.B.R. initial the Non-Custodial Interview form (Exhibit P-1), which related to the accused acknowledging a “Statement of Jeopardy”, “Police Warning” and “Confirmation of No Detention or Arrest”. [ 13 ] According to the video recording, the interview started at 13:55:30 and ended 64 minutes later. [ 14 ] It was noteworthy that although E.B.R. was told at the outset that he could leave at any time, he was never reminded of that

fact. [ 15 ] It was also noteworthy that E.B.R. was not provided with any rights to counsel at the outset of the interview. He was provided with his rights to counsel after a full confession was extracted and he was placed under arrest. [ 16 ] Shortly after the interview commenced, E.B.R. told Cpl. McCoombs his version of events. E.B.R. admitted to babysitting S.B. on the night in question and that the grandparents were present the entire time. E.B.R. also testified that he had known S.B. all of his life and that he called S.B.’s mother, “mom”.

E.B.R.’s biological mother had passed away approximately two years earlier. [ 17 ] According to E.B.R.’s version of events it was a fairly typical babysitting night including playing with S.B. and her toys, watching some television and having snacks before bed. E.B.R. adamantly denied any wrong doing on his part that evening. [ 18 ] Despite the fact that E.B.R. was at the Southey Detachment at the request of Cpl. McCoombs to give his version of what happened, Cpl. McCoombs was not accepting of E.B.R.’s version of events and soon became much more aggressive with E.B.R.. [ 19 ] Cpl.

McCoombs started suggesting to E.B.R. that he was lying to her. She said this to him on at least six occasions. Cpl. McCoombs used words like “I am not suggesting you are a monster”. Cpl. McCoombs also made reference to E.B.R.’s recently deceased mother and asked him, “what would she think”. [ 20 ] Throughout this time Cpl. McCoombs’s tone of voice became much more aggressive and controlling. Several times she left the room, but always shut the door behind her and testified that she expected E.B.R. would be there when she returned. At no time did she confirm with E.B.R. that he was still free to leave.

She never offered him food, water, a bathroom or cigarette break. [ 21 ] Interestingly, at 14:26:41 Cpl. McCoombs asked E.B.R. what should happen to people who do these kinds of things to kids. E.B.R. stated that he didn’t know how it worked and that perhaps a ticket is issued, and the person would not be allowed to see the child. [ 22 ] E.B.R. is not a sophisticated individual. He is young, being 19 at the time of the interview with Cpl. McCoombs. Very clearly he had no idea of the jeopardy he was facing and clearly Cpl.

McCoombs would have known this from his reply but, she did not attempt to correct his misconception and did not offer him the opportunity to consult with a lawyer. [ 23 ] At 14:29:43 Cpl. McCoombs confronted E.B.R. with the question about what his deceased mother would say about all of this, followed by Cpl. McCoombs stating she did not think the accused was a monster. E.B.R. became emotional during the discussion about his deceased mother. [ 24 ] At 14:32:12 Cpl.

McCoombs moved her chair closer to E.B.R. and leaned in towards him such that she was now very close to E.B.R., as he was seated in the corner of the Hard Room of the Southey Detachment. [ 25 ] At 14:34:14 Cpl. McCoombs made what the defence alleges was a threat to E.B.R. While still seated directly in front of E.B.R. and with a raised, accusatory and intimidating tone she said to him: It is not whatever, this not a whatever case. Okay? This is a serious matter, E.B.R. A little kid is claiming that you made her touch your penis. This is serious.

Now I want to know if it was a mistake or do you actually go around babysitting kids and get them to touch your private parts all the time. To get to touch your penis. Like, do you get off on that? That ’ s my issue right now, am I dealing with a sole incident or a serial case. Should I start knocking on the door of every kid you have come in contact with? ” (hereinafter referred to as the “ alleged threat ” )

[ 26 ] At 14:35:39 hours and immediately following the alleged threat, Cpl. McCoombs said to E.B.R.: Just give me a minute ok. I just want you to think hard about what you want to do here ok and I will be right back. [ 27 ] There was no real indication from E.B.R. that he was in agreement with this suggestion nor did Cpl. McCoombs wait to see if he was agreeing with this suggestion. Cpl. McCoombs simply made the statement, got up and walked out of the room closing the door behind her.

Notably she did not remind E.B.R. he was free to leave and she did testify in Court that whenever she left the room she expected him to be there when she returned. [ 28 ] At 14:36:57 Cpl. McCoombs returned to the Hard Room and her first question to E.B.R. was “Ok do you have anything different to tell me?”. This was the first question that had been asked of E.B.R. since the making of the alleged threat by Cpl. McCoombs. E.B.R. immediately started making inculpatory statements and by 14:39:59 E.B.R. had made a full confession to Cpl. McCoombs when Cpl.

McCoombs asked him, “did you tell S.B. to touch your penis?” and the accused replied, “yes”. Cpl. McCoombs immediately placed the accused under arrest, approximately six minutes after the alleged threat was made. [ 29 ] Cpl. McCoombs, at this point, did provide E.B.R. with his rights to counsel and police warning. E.B.R. declined a lawyer at this point and Cpl. McCoombs then went on to get him to repeat the confession a few more times while still on video. [ 30 ] In total the interview lasted 64 minutes. [ 31 ] During the skillful cross-examination of Cpl. McCoombs by Ms.

Franklin, the lawyer for E.B.R., she gained these admissions from Cpl. McCoombs: i. Cpl. McCoombs wanted to control the room; ii. She always shut the door when she left the room; iii. She placed herself in between E.B.R. and the door; iv. Whenever she left the room she expected E.B.R. to be there when she returned. v. She never reminded E.B.R. that he was free to leave after her initial comment at the start of the interview; vi. She never offered to give E.B.R. any breaks, food, water, bathroom or cigarette breaks; vii. She used an aggressive tone with E.B.R.; viii. She told E.B.R. he was lying six times; ix.

And although Cpl. McCoombs originally denied saying to E.B.R. that she knew what had happened, after viewing the videotaped statement she did agree that she said to E.B.R. at some point “I know the facts about what happened that night”; x. That she told the accused he was not a monster; xi. When E.B.R. indicated that he thought people who do this kind of thing would get a ticket, Cpl. McCoombs did not correct him with respect to the jeopardy he was facing; xii. Throughout the interview her demeanour changed, becoming more forceful and intimidating which was a tactic she used;

xiii. The threatening language she used was said in order to make the accused feel uncomfortable; xiv. She needed a confession to keep the investigation going. [ 32 ] E.B.R. also testified. He stated that prior to the interview with Cpl. McCoombs he had never had any contact with police except for a speeding ticket. [ 33 ] E.B.R. stated that he went to the detachment because Cpl.

McCoombs asked him to and that he drove to the detachment by himself. [ 34 ] E.B.R. described what he called the “interrogation room” as a “closed in and quiet” space. [ 35 ] In both his examination in-chief and cross-examination E.B.R. repeatedly testified that he knew he could leave the room but felt that if he left the room he would be in more trouble. He felt nervous and “cooped up” in the room and that as the interview progressed he felt that he could not leave. [ 36 ] E.B.R. testified that eventually he was just agreeing with Cpl. McCoombs so he could just keep going.

He further testified that because of the tone of her voice he “had to tell her what she wanted to hear”. [ 37 ] E.B.R. at one point testified that he felt “trapped” and that he needed to leave. [ 38 ] During cross-examination by the Crown E.B.R. conceded that Cpl. McCoombs never said he could not leave and that E.B.R. himself never asked for a break or for water or for a cigarette and that it did not cross his mind to leave once he began talking, but clarified this remark by stating that he felt he would be in more trouble if he tried to leave. E.B.R. did also testify that when Cpl.

McCoombs left the room he also could have left the room but that he felt pressured to stay because it was in the heat of the moment, he was face to face with Cpl. McCoombs, and she was raising her voice at him. [ 39 ] Ultimately E.B.R. testified that when he confessed, he was telling Cpl. McCoombs what he thought she wanted to hear. III. Issues i. Has the Crown proved beyond a reasonable doubt that E.B.R.’s statement to Cpl. McCoombs was voluntary? ii. Was E.B.R. denied his

section 10(

b) Charter rights to counsel and if so, should the evidence of his videotaped statement be excluded? IV. Law and Argument

i. Has the Crown proven beyond a reasonable doubt that E.B.R.’s statement to Cpl. McCoombs was voluntary? [40] A confession is not admissible if it is made in circumstances that raise a reasonable doubt as to its voluntariness. In R v Oikle,2000 SCC 38, 147 CCC (3d) 321 [Oikle] the Court set out a number of factors to consider when looking at the issue of voluntarinessincluding but not limited to: a. Whether there were threats or promises; b. Whether police conduct was oppressive; c. Whether the accused had an operating mind; d.

If there was other police trickery. [41] Oikle (at paragraph 68) also notes that on occasion the oppressive conditions coupled with the inducements or threat canoperate together to exclude the confession. [42] The Court must apply a contextual approach and consider the statement of the accused with regard to all of the circumstancesof its making.

Consideration must be given to the personal circumstances of the suspect including the level of sophistication, theinfluences of custody, the effects of questioning and their relative experience with the justice system. [43] In the present case, E.B.R. was 19 years old at the time of his interview with Cpl. McCoombs. E.B.R. had no criminal recordand had no prior interaction with police except for a speeding ticket. E.B.R. had a grade 12 education and no post secondary training.

Given the considerable advantage of having heard E.B.R. testify in court, my assessment of E.B.R. would be an individual who is quiet,timid, unsophisticated and suggestible. This was especially evident during cross-examination. E.B.R. is a person who tries to avoidconfrontation and experiences discomfort when in such a situation, a fact that was borne out by the videotaped statement and his conductin court while testifying. a. Threat or promise [44] In Oickle at paragraph 53, the Court held: The Ibrahim rule speaks not only of “hope of advantage”, but also of “fear of prejudice”.

Obviously, any confession that is the productof outright violence is involuntary and unreliable, and therefore inadmissible. More common, and more challenging judicially, are themore subtle, veiled threats that can be used against suspects. [45] Cases that I have considered helpful and relevant on this issue include: a. R v Sweeney, , 148 CCC (3d) 247 (ON CA) [Sweeney] is a case where a police officer threatened to“trash” the accused mother’s house during a search if a confession was not forthcoming. The Court found the confession to beinvoluntary. b.

R v Cheekinew, 2011 SKQB 484, 388 Sask R 245 [Cheekinew], is a decision where the Court excluded a confession due toan officer’s subtle or implicit inducements. The Court in Cheekinew was left with a reasonable doubt as to the voluntariness of thestatement based on the inducements made by the interviewing officer, coupled with the accused’s circumstances. The Court held thatthe officer induced the accused by suggesting or implying that if the accused was honest with the police, it would affect his punishment.

At paragraph 9 the officer said as follows: I’m going to tell you straight up, I know what happened here on Saturday night, okay. There’s ​ we have lots of evidence to say what

happened here, and what I want to find out from you is why it happened, okay? To me, knowing what happened is only one part of the big puzzle, okay, and that ’ s the same thing for the judges, too. When it goes to court, the judges obviously want to know why it happened in regards to punishment and stuff like that, okay. The Court held that the second inducement concerned the officer’s suggestion that he would be more inclined to believe the accused in the future when their paths crossed if the accused told him what happened.

The Court found that the accused could have considered this as a threat, that is, “if he doesn’t cooperate now, his version of events in future police encounters will be discounted and not believed by the police”. The Court found that both inducements were more subtle or implicit rather than direct. The Court also took into consideration that the accused was a young male in his early twenties. Although the accused had some prior involvement with the police as a youth, the Court found that the accused’s discomfort with his surroundings and questioning was clear from the video.

In the present case, when the officer stated “should I start knocking on the door of every kid you’ve come in contact with?”, could be both an inducement and a threat. On one hand, it may be an inducement because the accused could have viewed this statement as meaning, if I cooperate now then the officer will not knock on my neighbours’ doors. On the other hand, it may be viewed as a threat, that is, if I don’t cooperate now, then the officer is going to knock on my neighbours’ doors. c.

In R v MacDonald , [1999] 45 WCB (2d) 57 (Ont Sup Ct) [MacDonald] , an officer threatened to take apart the accused’s house and look through everything in order to find a gun. The Court held that any statement made after this was involuntary due to the officer’s threat. In MacDonald , the accused repeatedly refused to answer the officer on certain subjects and then once the threat was made the accused answered several questions on the topic of the gun. In MacDonald , and in the present case, both officers threatened to make the accuseds’ lives difficult if they did not confess.

In addition both accused confessed in order to avoid being embarrassed and discomforted and both confessed almost immediately after the threat was made. Notably in MacDonald , unlike the present case the accused had been given his right to counsel twice and had executed the right to prior to his confession. d. R v F.(J.J.), 2003 ABPC 2 , 320 AR 198 is also factually similar to the present case in terms of the nature of the initial investigation and the background of the accused. The accused, a 19 year old male, voluntarily and willingly attended a police station. The accused was open, apprehensive and nervous.

The officer never mentioned “arrest” or “detention” at any time. The accused was being interrogated for sexually interference and sexual assault arising from events alleged to have occurred when the accused was babysitting his five year old niece. The accused confessed after the officer indicated that he could erase his mistake by taking responsibility for his actions. The Court found that the confession was not voluntary and thus inadmissible.

The Court found that there was implicit quid pro quo at the beginning of the interrogation followed by stronger inducements when the officer offered to erase the accused’s mistakes. As well, the Court took into consideration the accused’s compliant personality. e. In R v Nakamura , 2011 BCSC 1443 , the accused willingly complied with the officer’s request to attend the police station in order to be questioned about being a witness in an incident. When the accused arrived at the police station he was taken to an interview room.

The officer showed the accused the door and told him that it was open and he could leave at any time. The officer soon became aggressive and pressed the accused about details of the incident. The Court found that there was a power imbalance between the officer and the accused, as the accused was unsophisticated and 19 years old. At one point in the interrogation, the accused stated that the interview was over and that he was going to leave.

The officer said that was okay “but the next time he saw him he would have a warrant for his arrest and he would have interviewed his two friends who would, in all likelihood, have said that it was he (Vincent) who did the stabbing”. After this statement, the accused confessed. The Court found that the accused’s confession was involuntary due to the interrogation technique used, the age and size of the accused, the threat of arrest coupled with the promise not to come to his home to arrest him.

In addition, the Court found the accused was psychologically detained when he was in the interview room because of the power imbalance and the aggressive interrogation. [ 46 ] Interestingly, the Oikle case itself involved a confession relating to several arson charges and the improper use of a polygraph. However in that case the Court also considered a possible threat relating to the contacting of the respondent’s fiancé.

Although the Court in Oikle found that the majority of the discussion around the respondent’s fiancé and the suggestion to the accused that she needed to be questioned, related to whether or not she was an alibi witness rather than involved herself, the Court held at paragraph 84: Moreover, the timing of the comments regarding Ms. Kilcup suggests that there was no casual connection between the police inducements and the subsequent confession. After the statements quoted above, Corporal Deveau left the room, and told the respondent

that he intended to speak to Tanya. Therefore the respondent ’ s actual confession was approximately two hours after he thought the police were already speaking to Tanya. Moreover, soon after Constable Bogle took over the interrogation, the respondent himself made it clear that he thought the police were only talking to Ms. Kilcup in order to verify his alibi (A.R. at p. 611): [ 47 ] The Court in Oikle concluded that the inducements regarding the respondent’s fiancé lacked both the strength and causal connection necessary to warrant exclusion.

The Court downplayed the significance of the police speaking to the fiancé in part because it found no causal connection. That is, a confession followed hours after these comments and at a time when the respondent already thought the police had spoken to his fiancé. Interestingly the police had also provided Mr. Oikle with his rights to counsel on at least two occasions prior to that point. [ 48 ] In the case at bar, the alleged threat occurred at 14:34:14.

Immediately following the alleged threat E.B.R. commenced making statements against his interest and, within six minutes of the alleged threat E.B.R. had given a full confession and was under arrest. Clearly in the present case the alleged threat had a profound affect on E.B.R. and a causal connection between the alleged threat and the confession is clearly established. [ 49 ] But was it a threat at all? The Crown contends at paragraph 24 of its brief of law that Cpl.

McCoombs did not believe this was a threat but rather an “investigative technique” or possibly something that necessitated “further police investigation”. Firstly, the two are quite different. If the alleged threat was an investigative technique then very likely it was inappropriate on its face. Secondly, I find it difficult to believe that Cpl. McCoombs was considering further police investigation. If this officer truly felt that there were more potential victims out there then she would have been required by law to investigate.

There was no evidence of any such action on her behalf with respect to her interviewing any other person. [ 50 ] One must also put into context the alleged threat. It happened at a time when E.B.R. had already been at the police station, in the Hard Room of the Southey Detachment for some time. He had not received any rights to counsel; he clearly did not know the jeopardy he was facing; he had not been offered any break, whether it was for food, water or cigarettes or a bathroom break (although I am mindful of the fact that he was only in the room for 64 minutes).

He had basically been called a liar by a fully armed uniformed police officer on six occasions and Cpl. McCoombs’s demeanor was now to the point of being controlling and aggressive. At one point, prior to the alleged threat, she even moved her chair closer to E.B.R. and physically moved in closer to him as he sat in a chair in the corner of the Hard Room. [ 51 ] One must also be mindful that E.B.R. was not particularly sophisticated; he was young, and he had basically no experience with law enforcement.

Clearly a significant power imbalance existed. [ 52 ] The word “threaten’ is synonymous with “intimidate”, “brow beat”, “bully” or “to cause someone to be vulnerable or at risk”. I find that the alleged threat by Cpl. McCoombs, in conjunction with the manner in which the words were spoken and the surrounding circumstances as created by Cpl. McCoombs, was designed purposely to be all of this. Given the actions of E.B.R. immediately following the alleged threat, he obviously took the alleged threat that way as well. Any reasonable person of E.B.R.’s age and sophistication would have viewed it that way.

I therefore find the confession of E.B.R. was not free of threat. (

b) Whether the police conduct was oppressive. [ 53 ] In some circumstances, the use of oppressive techniques will render a confession involuntary. An atmosphere of oppression can be created in the circumstances surrounding the taking of a statement, even where there are no threats or inducements. The Supreme Court in Oikle made the following comments with respect to the concept of oppression: ... If the police create conditions distasteful enough, it should be no surprise that the suspect would make a stress-compliant confession to escape those conditions.

Alternately, oppressive circumstances could overbear the suspect ’ s will to the point that he or she comes to doubt his or her own memory, believes the relentless accusations made by the police, and gives an induced confession. [ 54 ] I find that the following oppressive circumstances existed in the present case:

a. E.B.R. was not provided any relief from the questioning. He was not offered water, food, cigarette or bathroom breaks; b. Cpl. McCoombs was not accepting of E.B.R.’s version of events and at one point said to E.B.R. “I know the facts about what happened that night”. In fact Cpl. McCoombs had no reliable evidence about what had or had not happened; c. Despite the fact that Cpl. McCoombs had requested that E.B.R. come down to the Southey Detachment to give his version of what happened, when E.B.R. did give his version of events, he was told repeatedly that he was not telling the truth and that he was lying.

He was told this on at least six occasions; d. Cpl. McCoombs indicated on several occasions that E.B.R. was not a bad person or a monster, but had simply just made a mistake. e. Another tactic used to make E.B.R. feel uncomfortable was to reference E.B.R.’s deceased mother, when she asked E.B.R. what his mother would think of this. Cpl. McCoombs was aware that E.B.R.’s mother had passed away. f. Cpl. McCoombs raised her voice on several occasions and stared at E.B.R. for lengths of time to create an uncomfortable atmosphere and intimidate him. Cpl.

McCoombs was aggressive and threatening and made a very serious and intimidating threat to E.B.R. relating to his possible involvement with other children. g. There was no clear point at which the interview was going to come to an end, from the perspective of the police or E.B.R. Objectively, it appeared that the only thing that would end the interview was the police receiving a confession from E.B.R. that he did something wrong. Cpl. McCoombs appeared that she would not take no for an answer. h. E.B.R. testified to his experience in the room with Cpl. McCoombs.

He indicated that he felt “pressured” and “trapped”. Notably he was placed in the corner of the Hard Room at Southey Detachment with the door closed and Cpl. McCoombs seated between E.B.R. and the door. i. E.B.R. was not given an opportunity to speak to legal counsel until after his confession, despite the fact that it was obvious E.B.R. was unaware of the jeopardy he was facing given his “ticket” comment to Cpl. McCoombs. [ 55 ] Having considered all of the circumstances in their entirety, I also find that on this occasion the police conduct was oppressive. (

c) Whether the accused had an operating mind; and (

d) If there was other police trickery? [ 56 ] The defence has not raised these elements so I do not feel compelled to write at any length on these matters. E.B.R. did seem to possess an operating mind. Whether or not there was any police trickery is more difficult. Taking into consideration that the police were suggesting to E.B.R. that they knew what had happened when in fact they had no evidence to support what they believe occurred is distasteful. I am not however convinced that it would necessarily, standing alone, be enough to be considered trickery to the point where it was so offensive to render the statement involuntary.

[ 57 ] In conclusion therefore I find the Crown has not proven, beyond a reasonable doubt, the voluntariness of E.B.R.’s confession given the threat by police and/or the oppressive conditions created by the police officers, and/or the combination of the two (as referenced in Oikle ) . Accordingly the video statement of E.B.R. is not admissible in its entirety. ii. Was E.B.R. denied his

section 10(

b) Charter rights to legal counsel and if so should the evidence of his videotaped statement be excluded? [ 58 ] E.B.R. provided notice under the Constitutional Questions Act alleging that his right to consult counsel pursuant to

section 10(

b) was violated because he was detained by the officer and not provided these rights. As with all Charter challenges, the onus is upon the person asserting a violation of his or her rights to establish, on a balance of probabilities, that the right has been denied or infringed. R v Luong , 2000 ABCA 301 , 149 CCC (3d) 571 at para. 12 . [ 59 ]

Section 10(

b) of the Charter is triggered upon arrest or detention. Detention can be either physical, or psychological. The Supreme Court elaborated on the scope of “detention” in R v Suberu 2009 SCC 33 , 245 CCC (3d) 112: [22] While a detention is clearly indicated by the existence of physical restraint or a legal obligation to comply with a police demand, a detention can also be grounded when police conduct would cause a reasonable person to conclude that he or she no longer had the freedom to choose whether or not to cooperate with the police.

As discussed more fully in Grant , this is an objective determination, made in light of the circumstances of an encounter as a whole. [23] However, this latter understanding of detention does not mean that every interaction with the police will amount to a detention for the purposes of the Charter, even when a person is under investigation for criminal activity, is asked questions or is physically delayed by contact with the police.

This Court ’ s conclusion in Mann that there was an “ investigative detention ” does not mean that a detention is necessarily grounded the moment the police engage an individual for investigative purposes. Indeed, Iacobucci J., writing for the majority, explained as follows: “ Detention ” has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to “ detain ” , within the meaning of ss. 9 or 10 of the Charter , every suspect they stop for the purposes of identification, or even interview .

The person who is stopped will in all cases be “ detained ” in the sense of “ delayed ” , or “ kept waiting ” . But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint. [ 60 ] The Court in R v Grant , 2009 SCC 32 , 245 CCC (3d) 1 [ Grant ] defined psychological detention as follows: [30] Moving on from the fundamental principle of the right to choose, we find that psychological constraint amounting to detention has been recognized in two situations.

The first is where the subject is legally required to comply with a direction or demand, as in the case of roadside breath sample. The second is where there is no legal obligation to comply with a restrictive coercive demand, but a reasonable person in the subject ’ s position would feel so obligated.

The rationale for this second form of psychological detention was explained by Le Dain J. in Therens as follows: In my opinion, it is not realistic, as a general rule, to regard compliance with a demand or direction by a police officer as truly voluntary, in the sense that the citizen feels that he or she has the choice to obey or not, even where there is in fact a lack of statutory or common law authority for the demand or direction and therefore an absence of criminal liability for failure to comply with it. Most citizens are not aware of the precise legal limits of police authority.

Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand. The element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary.

Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist. [Emphasis added] [31] This second form of psychological detention ​ where no legal compulsion exists ​ has proven difficult to define consistently. The question is whether the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand.

As held in Therens , this must be determined objectively, having regard to all the circumstances of the particular situation, including the conduct the police. As discussed in more detail below and summarized at para. 44, the focus must be on the state conduct in the context of the surrounding legal and factual situation, and how that conduct would be perceived by a reasonable person in the situation as it develops. [ 61 ] The test therefore is an objective analysis, based on a reasonable person in these

circumstances. [ 62 ] In Grant , the Court summed up the principles of detention in paragraph 44: In

summary, we conclude as follows: 1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual ’ s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. 2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained.

To determine whether the reasonable person in the individual ’ s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia , the following factors: (

a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation. (

b) The nature of police conduct, including the language use; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter. (

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. [ 63 ] The defence has primarily raised the issue of a psychological detention where there is no physical restraint and so I will start there. Considering the factors set out in Grant the following facts are relevant: a. Circumstances giving rise to the encounter In the present case, the police were not providing general assistance nor were they maintaining general order.

The police had singled out E.B.R. as the only suspect and had requested his attendance at the Southey detachment of the RCMP; b. The nature of the police conduct The police conduct was a significant factor in the case at bar. The police requested the attendance of E.B.R. under the pretense that they wanted to give him an opportunity to provide his side of the story. It is on that basis that E.B.R. agreed to attend the Southey Detachment; Once at the detachment E.B.R. was very clearly advised of his right to leave and even signed a form confirming he was aware of this right.

However, things quickly changed when Cpl. McCoombs did not like the version of events E.B.R. provided. Not only did Cpl. McCoombs become aggressive with E.B.R. in terms of the tone of her voice, but she positioned E.B.R. in the corner of the Hard Room of the Southey Detachment and positioned herself between E.B.R. and the now closed door of the Hard Room. At one point Cpl. McCoombs moved her chair closer to E.B.R. and leaned in toward him; During the interview Cpl. McCoombs was in full uniform including a bulletproof vest, duty belt and side arm. Cpl.

McCoombs then started grilling the accused about his version of events and on at least six occasions told him he was lying. It became clear that Cpl. McCoombs was not about to conclude the interview until she heard from E.B.R. what she, Cpl. McCoombs, believed happened. Cpl. McCoombs candidly testified that she wanted to “control” the Hard Room which was evident from the interview;

On several occasions Cpl. McCoombs left the Hard Room, always closing the door behind herself and testifying that she expected E.B.R.to be there when she returned. Never did she remind E.B.R. that he was free to leave. When Cpl. McCoombs left the Hard Room, immediately following the use of threatening language, she told E.B.R. to think hard aboutwhat he wanted to do. The implication was that he was to sit there until she returned, however long that might be. Ultimately Cpl.

McCoombs threatened the accused with language, which I have now found constituted a threat, with respect tocontacting other families and children. According to Cpl. McCoombs this was a tactic used by her to intimidate E.B.R. and make himfeel uncomfortable; E.B.R. himself testified that he knew he could physically leave, but he felt that if he left he would be in more trouble. A reasonableassumption under the circumstances. E.B.R. testified that as the interview progressed he began feeling “cooped up” and “trapped” and that he had no choice but to tell Cpl.McCoombs what she wanted to hear.

In my view these are classic signs of a psychological detention. c. The particular characteristics or circumstances of the accused As I have stated previously, my assessment of E.B.R. from having heard him testify was that he was a young, unsophisticated, quiet,timid and suggestible person who has had really no involvement with law enforcement. To think that a person with those qualities mightfeel intimidated by Cpl.

McCoombs to the extent that they felt duty bound to sit and answer questions under these circumstances is notdifficult to conclude. [64] I therefore find that under the circumstances, any reasonable person of the age and sophistication of the accused, would consider themselves psychologically detained. In fact, I believe that a case could be made thatE.B.R. was also physically detained. [65] Cpl. McCoombs testified she wanted to control the Hard Room. On several occasions she left the Hard Room and closed the door behind herself. Always “expecting” him to be there when she returned.

Immediately following thethreat by Cpl. McCoombs, as I have now found it to be, she said to E.B.R.: “Just give me a minute ok. I just want you to think hardabout what you want to do here ok and I will be right back.” [66] Cpl. McCoombs then left the Hard Room. She did not remind E.B.R. that he was free to leave but rather that he should think about things. E.B.R. never agreed to this nor was he allowed any input into this decision. Cpl.McCoombs simply told him how it was going to be and then left the room.

Implicit in this was that she expected him not to leave but tosit and think about things until she returned, however long that might be. [67] I therefore conclude that not only has the defence proven that a psychological detention existed, but a very good argument could be made for a physical detention as well. Accordingly I find on a balance of probabilities that abreach of E.B.R.’s

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b) Charter rights occurred given that he was detained by police but not provided his rights to legal counsel. As a result of the breach of E.B.R.’s section (10)(

b) rights to counsel, should the evidence of his videotaped statement beexcluded? [68] The Supreme Court previously set out the considerations to be applied in R v Collins, [1987] (SCC), 1 SCR 265, 33 CCC (3d) 1 when considering whether to grant a remedy under

section 24 of the Charter. Theseconsiderations have been expanded in Grant.

[ 69 ] The Supreme Court in Grant set out the three factors to be considered: A. The seriousness of the Charter -infringing state conduct; B. The impact of the breach on the Charter -protected interests of the accused; C. Society ’ s interest in the adjudication of the case on its merit. The seriousness of the breach [ 70 ] This inquiry requires a trial judge to evaluate the seriousness of the state conduct that led to the breach.

The more severe or deliberate the infringing conduct was, the greater the need for the courts to disassociate themselves from that conduct by excluding evidence linked to it, in order to preserve public confidence in and ensure state adherence to the rule of law. [ 71 ] If the conduct of the officer was wilful or a reckless disregard of Charter rights, it will be a more serious violation and will have a negative effect on the public confidence in the rule of law. This will increase the chances of bringing the administration of justice into disrepute ( Grant at 74).

However, if there is the need to prevent the disappearance of evidence or there is “good faith” on the part of the police officers, this may mitigate the need for disassociation from the police conduct. If the breach was “merely technical in nature” or resulted from an “understandable mistake” the Court will not have to be as concerned with disassociation R v Harrison , 2009 SCC 34 , 245 CCC (3d) 86 at para 22 . [ 72 ] In the present case it cannot be said that the breach was technical in nature or was an understandable mistake. Cpl.

McCoombs went into the interview knowing she needed a full confession in order to lay charges. She was not about to get derailed in that endeavour by providing E.B.R. with his rights to legal counsel and a call to a lawyer that might ensue. [ 73 ] Cpl. McCoombs, in my view, went to great lengths to avoid giving E.B.R. his rights to counsel. Early on she had him fill out a form confirming that he was not being detained.

Would it not have been easier to just provide E.B.R. with his rights to counsel rather than go through the charade of trying to make him understand he was not being physically detained? [ 74 ] The concept of psychological detention is not a new one. In my view, notwithstanding the initial actions of Cpl.

McCoombs at the start of the interview, as an experienced police officer she either knew or ought to have known that her conduct caused a detention, thereby generating E.B.R.’s right to speak to a lawyer. [ 75 ] The breach is all the more serious given the young age of E.B.R. and his lack of experience and sophistication, which again should have been apparent to Cpl. McCoombs. It was very obvious that E.B.R. did not appreciate his jeopardy given his answers to the questions put to him by Cpl.

McCoombs of what should happen to people who do these types of things and E.B.R’s response that he thought they would get a ticket and not be able to see the person. [ 76 ] In my view, having taken into consideration all of the circumstances, I find that the breach was serious and amounted to a total disregard of E.B.R.’s

section 10(

b) Charter rights. This finding weighs in favour of the exclusion of the evidence. The impact of the breach on the Charter protected interests of the accused

[77] In Grant the Court indicated at paragraph 76, that trial judges must concentrate on “. . . the seriousness of the impact of the Charter breach and the Charter-protected interest of the accused”. This requires an evaluation “of theextent to which the breach actually undermined the interests protected by the right infringed” and “the degree to which the violationimpacted on those interests”. [78] The more serious the infringement on the individual’s rights or freedoms, the greater the risk that the admission of the evidence could bring the administration of justice into disrepute (Grant at 76).

This stage of the inquiry shouldaim to prevent the mistaken belief that Charter rights do not count. [79] Grant at paragraph 77 states that: To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right andexamine the degree to which the violation impacted on those interests. . . . [80] One such interest is the principle against self incrimination R v White, (SCC), [1999] 2 SCR 417, 135 (3d) 257 (SCC). [81] In the present case the impact of the Charter breach was significant.

It was very clear that E.B.R. was not sophisticated and clearly was not aware of the jeopardy he was facing. In addition E.B.R. thought he was attending thepolice detachment to give his side of the story. Little did he know that Cpl. McCoombs had much more in mind. The breach had a veryreal impact on E.B.R. who ended up, without the benefit of legal counsel or his right to legal counsel, giving a confession at the insistence of Cpl. McCoombs. This was to E.B.R.’s considerable detriment and therefore weighs in favour of excluding the evidence.

Societies interest in the adjudication of the case on its merits [82] The third factor to be considered is society’s interest in adjudication of this case on its merits. As with any criminal charge, society’s interest in adjudicating the matter will generally be the case. However, in my view,society requires that cases be tried based on reliable evidence. The evidence of E.B.R.’s statement, obtained as it was, is not in my viewreliable and its admission risks the administration of justice being brought into disrepute. In my view this also weighs in favour ofexcluding the evidence.

Admissions after rights to counsel were provided [83] Following E.B.R.’s confession Cpl. McCoombs immediately arrested E.B.R., and then provided him with his rights to legal counsel and police warning. Cpl. McCoombs then went on to have E.B.R. repeat hisconfession, on video, a few more times. [84] The derived confessions rule is referenced in R v M.D., 2012 ONCA 841, 293 CCC (3d) 79. It is a common law rule thatgoverns the admissibility of a confession that has been preceded by another, inadmissible confession.

The second statement will also beinadmissible if: i. the tainting features that disqualified the first continue to be present; or ii. the fact that the statement was made was a substantial factor that contributed to the making of the second.

The derived confessions rule applies to subsequent statements that follow prior statements rendered inadmissible by lack of voluntariness, constitutional infringement, or a breach of section 146(2) YCJA . [ 85 ] In the case at bar the subsequent videotaped admission followed rights to counsel but was preceded by an inadmissible confession. One followed immediately after the other and was therefore clearly tainted for all of the same reasons and therefore inadmissible as well. [ 86 ] I therefore conclude that the videotaped statement, in its entirety, must be excluded pursuant to section 24(2) of the Charter. V.

Conclusion [ 87 ] The videotaped statement of E.B.R. is therefore inadmissible due to the fact that it was firstly not voluntary and secondly, even if it was voluntary, it must be excluded under section 24(2) of the Charter because of a

section 10(

b) Charter breach. ________________________ K.A. Lang, J