R v Baptiste, 2022 MBPC 21

CITATION: R v Baptiste , 2022 MBPC 21 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) K. Berkis, for the Crown ) ) - and - ) ) ) Neal Baptiste ) ) M. Lawrence, for the Accused ) ) Reasons for Decision (Accused) Applicant ) Delivered: April 22, 2022 C.A. DEVINE, P.J. INTRODUCTION [ 1 ] This is my decision on a voir dire concerning whether the Crown has proven beyond a reasonable doubt that the statement and any comments made by Mr. Baptiste to the police were voluntary, and also if the police violated his

section 10 Charter rights to be notified of the reason for his detention and to contact and obtain legal counsel. The defence alleges that the comments and statement made to police should not be admitted into evidence on the bases both that they were involuntary, and that they were obtained in violation of his protected Charter rights. [ 2 ] The defence argued that the police did not advise Mr. Baptiste of the reason for his detention, nor caution him at a time when he was mentally capable of understanding that information, violating his rights under

section 10(a). Furthermore, that they failed to provide him his right to counsel under

section 10(

b) when he was capable of understanding and exercising that right. [ 3 ] The defence also argued that both the statement and any comments Mr. Baptiste made to the police were not voluntary. The defence argued that the Crown cannot prove beyond a reasonable doubt that Mr. Baptiste had an “operating mind” at the time of the comments and the statement. [ 4 ] Mr. Baptiste arrived at the South Osborne Fire Station on the afternoon of February 2, 2020 without a shirt on, bloodied, and carrying two bloody knives.

Only a short time before, Justice Maytwayashing showed up at the same fire station bleeding, having been stabbed in the chest and back, and was taken by ambulance to the hospital. Mr. Baptiste was seen by paramedics and then held in the custody of several different police crews over the next 17 hours. [ 5 ] Mr. Baptiste is charged with aggravated assault for the stabbing of Mr. Maytwayashing. What follows is what happened at various stages of his involvement with paramedics and police. Fire Station: Paramedics, Police and Arrest, 4:33 p.m. [ 6 ] The defence called Community Paramedic Lance Pucknell.

He testified that the Community Paramedic (CP) is a division within the Winnipeg Fire and Paramedic Service. CP’s do not respond to 9-1-1 calls or ride in ambulances. Most of their job is to follow-up after there has been a 9-1-1 call. Crews send referrals to the CP. [ 7 ] Mr. Pucknell has been a paramedic for 20 years, since 2002, and on an ambulance until 2016-17. He then moved into the CP role. He was trained in the Criticare program and received his certification as an entry-level paramedic, worked for 10 years as a paramedic, and then worked over two years as an advanced paramedic.

He has been in the CP role for five or six years. The CP role has two phases, the first being at the Main Street Project which houses the Intoxicated Persons Detention (IPDA) area, a detox facility, a shelter for the homeless community and a transitional housing complex. The CP is medically responsible to care for any person in the building. Mr. Pucknell filled that role for three years, dealing mainly with wound care and assessing intoxicated people coming into the shelter area. He transferred into the Emergency Paramedics in the Community (EPIC) role two years ago.

He receives calls from paramedics and determines whether the matter is medical or social in nature. [ 8 ] In his 20 years of experience as a paramedic and CP, Mr. Pucknell has significant experience dealing with people who are intoxicated on street drugs and alcohol. His experience in ambulances, and more so at the Main Street Project, has provided him with likely thousands of opportunities to see intoxicated people and make quick assessments about what substance they have taken. [ 9 ] When Mr. Baptiste came into his care, he noticed three things that made him believe Mr.

Baptiste was not alright and was affected by a mental health disorder or some other factor. Firstly, it was February and Mr. Baptiste had only pants and shoes on; he did not have a shirt on. Secondly, he was holding two knives in one hand. Thirdly, he was not really engaging with Mr. Pucknell or anyone else; “it was just kind of like a trance-like state”. It seemed he was not really aware of his surroundings. Mr. Pucknell started talking to

Mr. Baptiste, who did not provide his name until the police became involved. “It just didn’t seem like he was all there.” Mr. Pucknell further testified that: Yes, he could walk, he was standing straight and he had a steady gait, but it was just that blank, thousand-yard stare. Whether that’s distracted or something was going on there, it just didn’t seem like he was really able to take in and absorb his environment and my questions. [ 10 ] Mr. Pucknell continued to engage with Mr. Baptiste.

He obtained his blood sugar levels finding them not to be in a range that would have contributed to his negative state, and ruled out an acute head injury. [ 11 ] Mr. Baptiste had told him that he had used methamphetamine earlier that day. He seemed very concerned and preoccupied with what he said was a photo on the phone of the person who was taken away in an ambulance. [ 12 ] Based on those observations, as well as his 20-year experience dealing with numerous methamphetamine users, Mr. Pucknell quickly surmised that Mr. Baptiste was probably in a state of methamphetamine psychosis.

He described his ability to come to that conclusion from “a little bit of education and a lot of experience seeing that time and again”. His observation is that people experiencing methamphetamine psychosis are so distracted in their head, that they hear people talking to them but are not processing the information very well, resulting in it taking a lot more effort to communicate. They are reluctant, fearful and distracted. [ 13 ] He testified that he provided his assessment that Mr.

Baptiste was experiencing methamphetamine psychosis to the ambulance driver and to the police. [ 14 ] The first police officers on scene at the fire station were Constables Ramsay and Wildeman who were dispatched at 4:30 p.m. on a high-priority basis. The information they had from the call history was that a heavy-set Indigenous male, shirtless, was in front of the fire station and there was mention of a butcher knife. There is no question that this person was Mr. Baptiste. [ 15 ] As soon as they arrived, at about 4:33 p.m., a paramedic (I infer Mr.

Pucknell) stuck his head out of the man door in front of the station (all of the garage doors were closed) and, according to Cst. Ramsay, pointed and said that there were knives on the ground. Cst. Ramsay testified that she saw two knives about 1½ to 2 feet from the accused. Cst. Wildeman however, testified that the paramedic said the man had dropped a knife on the ground and Cst. Wildeman then saw a knife on the ground, about 20 feet away from the suspect. [ 16 ] The officers immediately pointed their guns at Mr. Baptiste and loudly commanded him to show his hands and get on the ground. Mr.

Baptiste immediately complied. The officers were in uniform and had announced themselves as police. [ 17 ] Cst. Ramsay denied that she was told by paramedics that Mr. Baptiste was in a state of “excited delirium”, nor did she remember if she was told he was experiencing methamphetamine psychosis, but she did not believe him to be experiencing methamphetamine psychosis; “To my mind, psychosis looks different.” She agreed that Mr. Baptiste mentioned he had taken drugs. Her partner overheard Mr. Baptiste admitting to consuming alcohol, cocaine and methamphetamine. [ 18 ] Coincidental with ordering Mr.

Baptiste to the ground, Cst. Ramsay arrested him for assault with weapon. [ 19 ] She testified that she did not provide his right to counsel at the time, concerned that he was in medical distress. She testified that his breathing did not seem normal, it was erratic, and he was hot and sweating despite having no shirt and being on the ground in February. [ 20 ] Mr. Pucknell did not testify to Mr. Baptiste having any difficulties breathing or exhibiting erratic breathing. He ordered that Mr. Baptiste go to the hospital to be medically cleared because of the methamphetamine psychosis. [ 21 ] Cst.

Ramsay did recall Mr. Baptiste talking to himself and saying something about a phone. Cst. Wildeman testified that Mr. Baptiste did not provide his name to Cst. Ramsay right away. He could not recall if that was because Mr. Baptiste was unwilling or unable to answer the question. Ambulance: Voluntariness, Notice of Arrest and Right to Counsel, 5:19 p.m. [ 22 ] Cst. Ramsay accompanied Mr. Baptiste to the hospital in the ambulance. She read the formal Notice of Arrest and Right to Counsel from the back of her police notebook. In response to whether he understood the Notice of Arrest, Mr.

Baptiste said, “Yes.” In response to whether he wanted to contact a lawyer, Mr. Baptiste stated, “I don’t have a sophisticated enough lawyer for all of the ins and outs of this.” Cst. Ramsay asked if he wanted to contact Legal Aid and he responded, “They aren’t sophisticated enough, but ya, I guess I should call someone?” When he was asked who he would like to call, he responded, “I don’t know; I’m Neal Baptiste.” [ 23 ] When she asked if he wanted to call Legal Aid for now, he answered, “Uh, let me think.” Cst.

Ramsay took his responses to mean that he wished to speak with a lawyer, but she thought he was being evasive. She provided the police caution to him at that point and he said he understood. Hospital: Voluntariness and Right to Counsel, 5:37 p.m. - 3:31 a.m. February 3 [ 24 ] Cst. Ramsay testified that because Mr. Baptiste had indicated that he wished to speak with a lawyer, but did not say who, sometime before 6:50 p.m. she asked him again who he wanted to talk to or if he had thought about it. She testified that Mr. Baptiste did not give a specific answer.

He said he wanted to speak to a lawyer, but would not give her a name and did not agree to speak with Legal

Aid. Cst. Wildeman testified that his partner was getting frustrated with Mr. Baptiste. [ 25 ] Cst. Ramsay testified that if Mr. Baptiste had told her a name, she would have provided a phone book, but would not have allowed him to make a call to a lawyer when they were in the hospital because there was no private room. As he was still waiting to see a doctor and because he was a suspect in a stabbing, she could not leave him in a room unattended. [ 26 ] She testified that Mr. Baptiste was mumbling, somewhat incoherent and was talking about bugs on his skin. Cst. Ramsay accepted that Mr.

Baptiste was hallucinating the bugs; there was nothing crawling on his skin. But she testified that she was also of the opinion that he was not confused. Cst. Wildeman also testified about the bugs, saying that Mr. Baptiste would mention his concern about bugs crawling on his skin throughout the time they were with him at the hospital. Cst. Ramsay testified that he was for the most

part lucid, understood what she and her partner were saying to him and his answers were responsive. Cst. Wildeman testified that in his experience as a police officer of six years, people seeing bugs crawling on their skin is associated with methamphetamine use. Every time he witnesses a person who is experiencing this phenomenon, it is also the case that they used methamphetamine, or are a regular user. In his experience, another common observation is to see the person muttering to themselves. [ 27 ] Both police officers were adamant that Mr.

Baptiste was responsive and understood their questions, was generally cooperative, and was not jumping around or out of control in any way. [ 28 ] Cst. Wildeman agreed on cross-examination that he could not be sure that Mr. Baptiste was understanding all of their questions, as he had given some strange answers to their questions. [ 29 ] At 9:29 p.m. Mr. Baptiste spontaneously asked, “Did Justice survive?” [ 30 ] Constables Bunston and McInnis arrived at the Health Sciences Centre at 9:39 p.m. and took over from Csts. Ramsay and Wildeman. They were not told that Mr. Baptiste wanted to speak to a lawyer.

According to Cst. Bunston’s evidence, the call history and the briefing he and his partner received before arriving at the hospital was that Mr. Baptiste was under the effects of a narcotic and experiencing a drug-induced psychosis. He testified that Cst. McInnis used the word “psychosis” in the police narrative to indicate a medical or drug-induced psychosis. [ 31 ] Despite Cst. Ramsay denying in her testimony that Mr. Baptiste was being assessed at the hospital due to his drug use, it was Cst. Bunston’s evidence that Cst. Ramsay briefed him that Mr.

Baptiste was brought to the hospital because of concerns about his drug use. [ 32 ] Cst. Bunston testified that although he was told that Mr. Baptiste was calm and cooperative, he could see right away Mr. Baptiste scratching at his arms, looking around and looking bewildered. He described Mr. Baptiste as somewhat paranoid, looking from side to side, behind him and at his hands. Mr. Baptiste told them that the walls were closing in on him and he kept moving his chair away from the wall. Cst. Bunston turned Mr. Baptiste’s chair to face the wall, which settled and calmed him. Mr. Baptiste told Cst.

McInnis that he was coming down from doing cocaine. [ 33 ] Cst. Bunston was confident from his 14½ years on the streets as a police officer, that Mr. Baptiste was experiencing something because of his drug use. The behaviour persisted throughout the time he was with Mr. Baptiste at the hospital, although he was improving over time. [ 34 ] Csts. Bunston and McInnis were relieved at the hospital at around 2:00 a.m. by Constables Griffith and Richards. Cst. McInnis briefed them. Cst. Griffith testified that the briefing gave her nothing to be watching for nor cautious about.

She testified that she had not been told about Mr. Baptiste talking about the walls closing in on him at the hospital. [ 35 ] She testified that she was not provided any information about Mr. Baptiste’s charge and caution or his right to counsel. [ 36 ] She testified that Mr. Baptiste was awake, cooperative and fairly quiet and that she would have noted anything out of the ordinary in her notes. Police Headquarters: Notice of Arrest and Right to Counsel, 4:18 – 4:24 a.m. [ 37 ] Cst. Griffith testified that by 3:05 a.m. Mr. Baptiste was medically cleared by a doctor and no concerns were passed on to her.

At 3:31 a.m. she and her partner transported Mr. Baptiste to police headquarters, arriving there at 3:43 a.m. [ 38 ] She filled out the Prisoner Log Sheet. She indicated there were no medical or mental health concerns and that he was not intoxicated. She also indicated he was a methamphetamine user and had told her that he had used methamphetamine and cocaine in the morning, that is, the morning before. She testified that she had no concerns about his methamphetamine use because he had been medically cleared. [ 39 ] She and her partner took Mr.

Baptiste to an interview room at 4:18 a.m. and told him to have a seat and then exited. The room is equipped with audio-video equipment and the remainder of the interaction with Mr. Baptiste is audio and videotaped. The only thing in the room is a chair that appears to be made of hard plastic and is bolted to the floor. Mr. Baptiste sits on the chair, immediately stretches his legs out in front of him and folds his arms over and behind his head as if to try to sleep. Cst. Griffith returned about one minute later and brought a chair with her.

After a couple of preliminary comments, including telling him, “I know you’ve already been charged and cautioned from a previous unit,” she advised him that she was arresting him for aggravated assault. Mr. Baptiste was rubbing his face and stomach, and rocking back and forth in the chair. [ 40 ] Cst. Griffith admitted in her testimony that she was not told he had been charge and cautioned, but in her experience, he would have been. [ 41 ] While she was charging him, he was falling asleep and did not appear to be able to properly pay attention to the words she was

saying. Indeed, the officer has to constantly wake him up. After telling him he is under arrest for an aggravated assault, the following occurs: Cst. Griffith: So, I’m arresting you, Neal Baptiste, with aggravated assault or some similar offence on today’s date. Do you understand that? Neal? Baptiste: Hmm? [ 42 ] At that point, she is raising her voice to rouse him from sleep. The interchange continues; Mr. Baptiste keeps falling asleep. Cst. Griffith: Do you understand what I just said? Baptiste: No. Cst. Griffith: Do you want me to say it again? Baptiste: Please. Cst. Griffith: Okay.

I’m arresting you, Neal Baptiste, for aggravated assault or some similar offence on today’s date, which is currently February the 3 rd , 2021. Do you understand? Neal, I need you to open your eyes and pay attention. [ 43 ] Even though Mr. Baptiste’s eyes were closed and it was obvious he was asleep, Cst. Griffith denied that he was asleep in her testimony. She testified that he was tired and either was not paying attention to her or did not hear her.

She testified that if she did not think he understood her, which she believed he did, she would just keep repeating herself until he eventually answered in a way she thought was reasonable. [ 44 ] After that exchange, Mr. Baptiste, although appearing drowsy and unclear, did say in response to the officer’s question as to why he was under arrest, “assault on my little nephew”. [ 45 ] Cst. Griffith proceeded to read him his

section 10(

b) rights from the police card. He was rubbing his face, rocking, falling asleep and then apparently asleep. Cst. Griffith: Neal!? Baptiste: Hmm? Cst. Griffith: You understand you have a right to have a lawyer? Baptiste: Okay. Cst. Griffith: And you have a right to call a lawyer. Do you understand that? Baptiste: Yes. Cst. Griffith: Do you have a lawyer? Do you want to call a lawyer, Neal!? Baptiste: No, I’ll wait until the morning. Cst. Griffith: You’re going to wait till the morning? Baptiste: Yeah, I want to sleep. [ 46 ] The next question was about waiving his right to speak to a lawyer.

He continues to mumble, fall asleep and have his eyes closed. Cst. Griffith: Okay. Waiver of right to counsel. I’m required to advise you that you are entitled to a reasonable opportunity to try to contact duty counsel or any other lawyer. While you are trying to contact a lawyer we cannot take a statement from you or ask you to participate in any process that might provide evidence against you. Do you understand? Neal!? Baptiste: Hmm? Cst. Griffith: Do you understand that right now you’re waiving your right to speak to a lawyer? Baptiste: (Nods head affirmative; eyes are closed) Cst. Griffith: You understand?

Baptiste: (Nods head affirmative; eyes are closed) Cst. Griffith: So do you want to call a lawyer or no?

Baptiste: (Nods head affirmative; eyes are closed) Cst. Griffith: In the morning you said? Baptiste: Yeah. Cst. Griffith: Neal?! (trying to rouse him) Baptiste: Yeah. Cst. Griffith: Do you understand that you’re waiving your right to call a lawyer right now then? Yes or no? Baptiste: Yes. Cst. Griffith: So do you want to call duty counsel or any other lawyer right now? Baptiste: I got to just find one? Cst. Griffith: Do you want to call a lawyer right now, Neal? Neal!? (trying to rouse him) Baptiste: No. Cst. Griffith: No.

You are not bound to say anything, but any word or act while in custody of the police may be subject to written, audio or video recording. Any such recording may be used as evidence. Do you understand? Neal!? (waking him up) Baptiste: Yeah? [ 47 ] During this exchange Mr. Baptiste is almost always asleep or falling asleep. The officer keeps trying to rouse him. Cst. Griffith denied that he was asleep. “He’s not asleep. He’s not unconscious. He’s moving around, pacing.” She was asked if she could have asked more questions to ensure he understood and appreciated his rights.

She answered that she was not instructed to do so. When it was suggested that she did not ask more questions because Mr. Baptiste was incompetent to answer them, she denied that suggestion. [ 48 ] She testified that she was satisfied she had fulfilled her duties, “I believe I did my part” and that Mr. Baptiste waived his right to speak with a lawyer, “He responded ‘No’ at that time. So, in my mind, he said ‘No’.” [ 49 ] She goes to get him food and a blanket. In the 18 minutes that Mr.

Baptiste is alone in the room, his legs are restless, he is scratching himself and appears to try to get more comfortable to sleep. His head is back against the wall and then he jerks awake. He gets up from the chair and with great difficulty removes his paper shirt from over his head. He continues to move around, still demonstrating extremely sleepy behaviour. He leans against the wall with his arms above his head, as if he was laying on his stomach on a floor or bed. He is stumbling. He is rubbing and scratching his torso. He appears to be seeing something on the walls, moving his hands, gesturing.

It is like watching a mime. He mumbles at one point, “I’ll come see you guys. I’m going home.” He is almost falling down. Then, with great difficulty, he sits on the chair again. The blanket is brought to him at 4:42 a.m. He appears to fall asleep on the chair, and then a minute later he crawls onto the floor to sleep with the blanket under him. He is gesturing as if rolling up a fishing line. [ 50 ] Cst. Griffith did not monitor or watch any of the video of Mr. Baptiste in the interview room. She testified, “We’re gone. I’m done.” She was instructed by her sergeant to make notes.

She did not recall if she had noted that Mr. Baptiste told her he would speak to a lawyer in the morning. Major Crimes Detectives: Notice of Arrest and Right to Counsel, 6:30 a.m. [ 51 ] Mr. Baptiste slept until 6:30 a.m., when Major Crimes Detective Sergeant Lofto and his partner Detective Ragetli came into the interview room. [ 52 ] Det. Sgt. Lofto made efforts to rouse Mr. Baptiste, saying, “Hey, can you just wake up for a sec here?” And, “Wake up though. Neal, you got to wake up, man.” And, “Wake up, please.” And, “. . . can you sit up?” And, “Can you wake up? Neal? Hello? Hello? Are you okay?

Are you all right?” [ 53 ] Det. Sgt. Lofto was not aware of the charge and caution provided by Cst. Griffith at about 4:00 a.m. He was not made aware that Mr. Baptiste had previously indicated that he wanted to speak with a lawyer. He could not remember if he knew about Mr. Baptiste’s methamphetamine use. He thought Mr. Baptiste had used cocaine. He did not watch any of the video of Mr. Baptiste’s earlier hours in the interview room. [ 54 ] Mr. Baptiste was still extremely groggy and falling asleep. Det. Sgt. Lofto provided a Notice of Arrest and Right to Counsel to Mr. Baptiste as follows: Det. Sgt.

Lofto: I just have to let you know – just read your rights one more time. So right now you’re under arrest for aggravated assault that occurred yesterday and it’s Justice Maytwayashing. Baptiste: Mm – hmm. Det. Sgt. Lofto: So you understand that? Baptiste: Yeah.

Det. Sgt. Lofto: Okay. So you have the right to retain and instruct counsel in private without delay. This means that before we proceed with our investigation you may call any lawyer you wish or get free legal advice from duty counsel immediately. If you want to call duty counsel, we will provide you with a telephone and telephone numbers. If you wish to contact any other lawyer, a telephone and a telephone book will be provided. If you are charged with an offences, you may also apply to Legal Aid for assistance. Do you understand? Baptiste: Mm – hmm. (Mr. Baptiste’s eyes are closed.

He appears to be asleep.) Det. Sgt. Lofto: Do you want to call duty counsel or any other lawyer? Baptiste: No. [ 55 ] Det. Sgt. Lofto was not made aware that this response indicated a change in Mr. Baptiste’s mind to speak to a lawyer. [ 56 ] During this time, Mr. Baptiste is still on the floor, scratching his head, yawning, turning and trying to get back to sleep. During the eight minute period Det. Sgt. Lofto is in the interview room, Mr. Baptiste is either sleeping, or trying to wake up or get back to sleep. By the end, there is no response between questions because Mr.

Baptiste is asleep. [ 57 ] The detectives leave the interview room for almost three hours, until 9:21 a.m., to let Mr. Baptiste sleep. [ 58 ] Nonetheless, Det. Sgt. Lofto testified that Mr. Baptiste understood him and was capable of understanding and exercising his rights. Major Crimes Detectives Interview: No Rights Provided, 9:21 a.m. [ 59 ] At 9:21 a.m. the detectives return and launch into the interview. Mr. Baptiste is now obviously much more alert and is able to stay awake and is not falling asleep during questioning.

The officers do not re-charge or provide him his right to counsel, nor do they provide him the opportunity to speak with counsel. When asked why, Det. Sgt. Lofto testified that Mr. Baptiste had been provided his right to counsel at 6:30 a.m. and he had no concerns that Mr. Baptiste did not understand those rights. [ 60 ] It is not entirely clear that Mr. Baptiste knows why he is there however. He starts talking about another offence, the planning of a woman’s murder by his daughter and another person, and he is worried he is being framed for it. It is apparent at first that Mr.

Baptiste believes he is there for that crime. At some point the officers clarify that he is not there for the murder of this woman. Mr. Baptiste makes admissions involving stabbing Justice Maytwayashing. He also rambles on about matters that make little sense. Det. Sgt. Lofto agreed that it was confusing and difficult to discern fact from fiction, because Mr. Baptiste seemed to be having trouble knowing what happened and what did not happen. The police later checked on whether the woman was murdered, and she was not. [ 61 ] The police conclude their interview with Mr.

Baptiste at 10:25 a.m. and leave him again to sleep. When they return at 1:09 p.m. he is sleeping on the floor under the blanket. ANALYSIS AND FINDINGS OF FACT [ 62 ] I find that Mr. Baptiste was experiencing a methamphetamine psychosis when he was at the fire station, which persisted during the entire time he was at the Health Sciences Centre and during some of the time he was at police headquarters.

During that time, I infer from his behaviour, such as seeing and feeling bugs crawling on his skin and seeing and feeling the walls coming in towards him, that he was hallucinating and not fully competent to understand the reality of what was going on around him, what the police were asking of him and what his jeopardy was. I say this because of the evidence of the paramedic and the observations of the police officers. I do not share the opinions of the police officers that Mr. Baptiste at all times understood them and was capable and competent to exercise his rights. [ 63 ] I prefer the evidence of Mr.

Pucknell to that of Cst. Ramsay about Mr. Baptiste’s medical and mental state at the fire station. Mr. Pucknell presented his evidence professionally and it was based on 20 years of experience as a paramedic dealing with persons under the influence of intoxicants and experiencing methamphetamine psychosis. There was a disconnect between his evidence and that of the police officers, who seemed to jump to the conclusion that Mr.

Baptiste was experiencing medical distress and who testified that they were concerned about his medical state; not on the basis of methamphetamine psychosis, but something else, which they were unable to provide any evidence about. Although Mr. Pucknell testified that he checked Mr. Baptiste’s vitals, such as blood pressure, blood-sugar levels and heart rate, he did not testify to any concerns in that regard. In fact, he ruled out any acute head injury or blood sugar level that could account for Mr.

Baptiste’s psychotic behaviour. [ 64 ] This was exacerbated by some of the questions by the Crown which seemed to equate methamphetamine psychosis with the acute “high” phase or “amped up state” of using methamphetamine. That was not the evidence provided by Mr. Pucknell who had the information that Mr. Baptiste had previously used methamphetamine. The evidence in the voir dire as a whole left me satisfied that Mr. Baptiste was experiencing methamphetamine psychosis due to long-standing use and he was in fact in the withdrawal phase of the use. [ 65 ] The behaviour that Mr.

Pucknell assessed as being due to methamphetamine psychosis persisted well beyond the time that Mr. Baptiste left the fire station. The hallucinatory-type behaviour, trance-like behaviour and at times apparent confusion continued for hours, including during the time he was in the interview room at police headquarters.

He can be seen in the video holding his arms up and leaning on the wall, gesturing to something or someone that was not visible, mumbling, muttering, stumbling and generally appearing “out of it” until after he is awoken from his second sleep at the police station, at about 9:30 a.m. on February 3, 2021. [ 66 ] I find that Mr. Baptiste was experiencing methamphetamine psychosis from the time of his arrest to the time his formal interview commenced.

[67] I find that he did not fully understand and appreciate his jeopardy nor the rights and expectations of his Notice of Arrest, Chargeand Caution, and Right to Counsel. I say this because he was often asleep or falling asleep, his other aforementioned abnormalbehaviour, the nonsensical responses to some of the questions the police officers asked, and his demonstrated confusion. [68] The police officers testified to varying degrees of certainty that Mr. Baptiste was cogent and understood them.

In this regard,their evidence was inconsistent and could not be corroborated by his demonstrated bizarre behaviour and confusion during the portion ofhis detention that was videotaped. Cst. Ramsay testified that his breathing was erratic, he was hot and sweating, talking to himself,mumbling, was somewhat incoherent, and that he thought there were bugs crawling on his skin. Cst. Wildeman testified that he couldnot be sure that Mr. Baptiste understood all of his questions. Cst. Bunston testified that although he was briefed by Cst. Ramsay that Mr.Baptiste was calm and cooperative, he encountered otherwise. Mr.

Baptiste was scratching at his arms, looking around, bewildered,paranoid, looking from side to side, behind him and at his hands, and believed the walls were closing in on him. [69] In light of Mr. Pucknell’s extensive expertise dealing with individuals experiencing methamphetamine psychosis, as well as theobservations of her partner Cst. Wildeman and Cst. Bunston who took over for them, both of whom testified that Mr. Baptiste appearedto be in a methamphetamine psychosis, I do not accept Cst. Ramsay’s evidence that Mr.

Baptiste was not experiencing amethamphetamine psychosis at the time she had him in her custody. This detracts from the degree of weight to which I can put on thereliability of her evidence generally. [70] It was Cst. Bunston’s evidence that Cst. Ramsay briefed him and his partner that Mr. Baptiste was brought to the hospitalbecause of concerns related to his drug use, and that she did not mention the psychotic behaviour, which he immediately observed. Cst.Ramsay had also testified that Mr. Baptiste was in medical distress.

There was no evidence of him being in medical distress, mostparticularly from the paramedic who assessed his medical status. [71] Thus, I decline to give a lot of weight to her evidence or Cst. Wildeman’s evidence that Mr. Baptiste understood them. Duringhis cross-examination, Cst. Wildeman testified that he could not be sure that Mr. Baptiste understood their questions. [72] As for Cst. Griffith’s testimony, I put no weight on it. Mr.

Baptiste was obviously asleep or otherwise unable to fullycomprehend and appreciate what she was saying to him at police headquarters, despite her testimony that he was able to comprehend andunderstand everything she said to him. [73] Similarly, the videotape does not support Det. Sgt. Lofto’s testimony that Mr. Baptiste understood him and was capable ofappreciating and exercising his rights when he provided his full notice of arrest and right to counsel at 6:30 a.m. The police stopped theinterview at that point because Mr. Baptiste could not stay awake sufficiently to communicate with them.

They returned three hours laterafter he slept, and conducted the interview when the prisoner was capable of communicating with them. [74] I find that Mr. Baptiste did not waive his right to counsel. He told Cst. Ramsay in the ambulance that he wished to speak to alawyer but he did not know who. He did not think his lawyers were sophisticated enough to “deal with all the ins and outs of this”,which is a very curious and almost nonsensical thing to say. But Mr. Baptiste was not always making sense that day, such as his answer“I don’t know. I am Neal Baptiste,” in response to Cst.

Ramsay’s question about which lawyer he would like to call. It also might havehad to do with the murder plan he overheard and believed he was being framed for, or the photos or item on someone’s phone that would“explain everything.” These real or imagined matters indeed might require the skills and sophistication of lawyers of a more specializedcalibre. [75] Cst. Ramsay also discussed contacting a lawyer with Mr. Baptiste at the hospital, but he did not specify a name. Cst. Wildemannoted her frustration. It seems that Mr. Baptiste was at the height of his psychosis at that point. While I accept that Mr.

Baptiste did notprovide a name of a lawyer that he wished to speak with, I am not fully confident about the reliability of Cst. Ramsay’s evidence. Therewas no waiver of counsel at that stage. I am not satisfied he was capable of appreciating his right to counsel when he was at policeheadquarters. [76] The last right to counsel was provided at 6:30 a.m. I do not accept that Mr. Baptiste was cogent enough during any of theseinteractions to appreciate and act on these rights.

THE LAW AND APPLICATION OF THE LAW Voluntariness [77] The law respecting admissibility of statements given to the police is governed by the Supreme Court of Canada case of R vOickle, 2000 SCC 38 , [2000] 2 S.C.R. 3. The harm which the law is intended to prevent is obtaining confessions that are false,that in turn can lead to wrongful convictions.

As Justice Iacobucci stated in Oickle at para 36, “[o]ne of the overriding concerns of thecriminal justice system is that the innocent must not be convicted.” A second concern is to ensure proper police action and the fairness ofthe criminal justice system. [78] The Crown has the onus of proving beyond a reasonable doubt that any comments or statements made by an accused person tothe police were made voluntarily.

All of the circumstances surrounding the making of the statement must be considered: whether thepolice made any threats, promises or inducements to the accused person; whether the statement was made in an atmosphere ofoppression; whether the accused had an operating mind when they made the statement; whether the police used trickery to obtain thestatement. If the accused person’s free will is overborne by these or other factors, the statement is not admissible (Oickle at para 1; R vAzizi, 2016 MBQB 195 at para 14). [79] The only issue with respect to voluntariness is whether Mr.

Baptiste had an operating mind when he was in police custody. Ihave a reasonable doubt that he had an operating mind, that is, until after this second sleep at police headquarters when he was beingquestioned by Dets. Lofto and Ragetli, commencing at 9:21 a.m. on February 3, 2021. Accordingly, I have a reasonable doubt that thecomments made and any statement made to the police before 9:21 a.m. on February 3, 2021 were voluntary. Therefore, they areinadmissible in the trial.

[80] That conclusion does not end the inquiry before this Court. The accused is also challenging the admissibility of his statementmade after 9:21 a.m., on the basis that his sections 10(

a) and (

b) rights were violated. Charter Sections 10(

a) and (b) [81] I have already ruled that Mr. Baptiste’s comments prior to the voluntary portion of his interview with the Major Crimes Unitdetectives are inadmissible. [82] I believe that by 9:21 a.m. he was capable of understanding and communicating with the police, so I accept that this portion ofhis statement was voluntary. However, he was not provided his right to counsel at that point. [83] The previous truncated Notices of Arrest (by Csts. Ramsay and Griffith) and mechanical readings of his Right to Counsel (byCsts. Ramsay, Griffith and Det. Sgt.

Lofto) were given to him in a state of methamphetamine psychosis and withdrawal, when he was soconfused and sleepy or sleeping, that I am satisfied he could not understand anything as sophisticated as legal rights and how to exercisethem. The provision of legal rights requires that the detained person understand those rights and has the ability and capability to exercisethose rights immediately. [84] Generally, I do not accept that complete knowledge of his right was fully understood by him. It is now trite law that a personcan only exercise their

section 10(

b) rights in a meaningful way if they know the extent of their jeopardy (R v Black, (SCC), [1989] 2 S.C.R. 138 at paras 152-53), which presupposes an operating mind. [85] I am also not satisfied that there was a clear waiver of his right to counsel. To the extent that Mr. Baptiste communicated aboutwanting a lawyer and was either reluctant or negativing that he wanted to contact a lawyer at any particular juncture, it was clear that hewas not saying he did not want a lawyer. Rather he was saying that he did not or could not contact a lawyer until he was able to sleep(see R v Bartle, (SCC), [1994] 3 S.C.R. 173 at para 21). [86] One of the main purposes of

section 10(

b) is to guard against a person under police detention from involuntarily incriminatingthemselves (R v Suberu, 2009 SCC 33 , [2009] 2 S.C.R. 460 at para 40). [87] I am satisfied on a balance of probabilities that his Charter sections 10(

a) and (

b) rights were violated by the police. I mustconsider whether the statement obtained in violation of his rights should be inadmissible, as a Charter section 24(2) remedy. Section 24(2) [88] The purpose of section 24(2) of the Charter is to ensure that trials are not unfair and tainted by disreputable evidence obtainedby police and other state agents in violation of an accused person’s rights.

The Supreme Court of Canada has provided a three partanalysis in the case of R v Grant, 2009 SCC 32 to determine whether evidence that is obtained in violation of persons’ rights should beexcluded. [89] The first line of enquiry is to consider the nature of the state action. I have found the breaches by police officers Ramsay,Griffith and Lofto to be serious. Mr. Baptiste was not advised that he was charged with aggravated assault for the stabbing of JusticeMaytwashing until 9:21 a.m. when Det. Sgt. Lofto provided that information. Up until then, the information about his offence wastruncated.

That fact itself would not be very serious, except that it was coupled with his incapacity to really understand what was goingon. The

section 10(

b) breach is more egregious. I believe that Cst. Ramsay attempted to advise Mr. Baptiste of his

section 10(

b) rights,but was frustrated by his inability to comprehend or appreciate those rights. She ought to have fully explained her inability to provideMr. Baptiste his rights to the subsequent officers, in order to ensure that he would be provided his rights again once capable ofcomprehending them. Instead, subsequent officers, particularly Cst. Griffith, seemed to assume he was provided his notice of arrest,charge and caution and his right to counsel. This error was repeated by subsequent officers over the next 17 hours.

Police officers aretrained in note-taking, briefing their colleagues and ensuring people in their custody are provided their Charter rights. Charter rights arenot guided by “form over substance”; they are important and cannot be rushed or mechanically provided when arrestees are incapable ofunderstanding them, because of mental confusion or because they are asleep. The videotape makes it very apparent that Mr. Baptistewas unable to understand or exercise his

section 10(

b) rights when the “rights” were read to him by Cst. Griffith and Det. Sgt. Lofto. The police assertion that he was awake and capable is very concerning and gives me further reason to dissociate the Court from thisbehaviour (R v Harrison, 2009 SCC 34 at para 26). [90] The violation was palpable and repeated. I find the breach on his

section 10(

a) and especially his

section 10(

b) rights to beegregious. The

section 10(

b) breach was not technical, nor the result of an understandable mistake. It was intentional at some junctures,exacerbated by a negligent lack of briefing by officers to each other. The police conduct in this case ranges from negligent to thatapproaching “blatant disregard” of Mr. Baptiste’s right to counsel (see Harrison at para 23, citing R v Kitaitchik, (2002) (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.) per Doherty JA at para 41). The officers’ determination to take a statement regardlessof Mr. Baptiste’s inability to appreciate and exercise his Charter rights coloured this investigation.

This was aggravated by many of thepolice officers’ testimony during the voir dire. [91] The second line of inquiry is that of the impact of these Charter violations on Mr. Baptiste’s Charter-protected interests. Thegreater the impact, the more the Court will distance itself from the breach, in order to preserve public confidence in the administration ofjustice. One of the main interests that

section 10(

b) protects is a person’s right against self-incrimination. This interest was underminedby the police, who noted and collected self-incriminating evidence from Mr. Baptiste in the form of a videotaped statement. The impacton his rights here was significant. [92] The third line of inquiry is on society’s interest in adjudicating this case and whether the truth-seeking function of the criminaltrial would be better served by admitting or excluding the statement of Mr. Baptiste. This is certainly a very serious charge – anaggravated assault caused by stabbing which resulted in serious injuries.

However, the truth-seeking function of the trial would not beserved by admitting the statement in question. While I found that Mr. Baptiste had an operating mind at the time he gave the statement,he was still somewhat confused and talked of a completely unrelated murder.

[ 93 ] All of the factors favour exclusion of Mr. Baptiste’s statement. In considering all the circumstances, admitting his statement would bring the administration of justice into disrepute. CONCLUSION [ 94 ] None of the comments made by Mr. Baptiste to the police are admissible on the basis that they were not voluntary. His statement to police is also excluded pursuant to section 24(2) of the Charter . ____________________ C.A. DEVINE, P.J.