2022 QCCQ 1742, 2022 QCCQ 1742

Maier c. R. 2022 QCCQ 1742 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Criminal and Penal Division No: 500-01-195442-196 DATE: April 13, 2022 ______________________________________________________________________ BEFORE THE HONOURABLE SUZANNE COSTOM, J.C.Q. ______________________________________________________________________ BEN MAIER Petioner/Accused v. HER MAJESTY THE QUEEN Respondent/Prosecutor ______________________________________________________________________ JUDGMENT ON A MOTION FOR THE EXCLUSION OF EVIDENCE and on the admissibility of the accused’s statement ( articles 7 , 10(

b) and 24(2) of the Canadian Charter of Rights and Freedoms and the Common Law Confessions Rule) [ 1 ] Mr. Maier is charged with sexual assault, forcible confinement and choking in relation to an incident that is alleged to have occurred on September 15, 2019. [ 2 ] On September 16, 2019 at approximately 4:44 pm, he attended the police station in order to sign documents for an unrelated matter. At 4:48 pm, he was arrested in relation to the above charges. Between 5:04 pm and 5:19 pm, he spoke with his lawyer. [ 3 ] Between 8:02 pm and 10:19 pm, Mr.

Maier was interviewed by Detective Sergeant Manon Champagne. [ 4 ] Mr. Maier seeks to exclude the statement he made during this interview on the grounds that it was obtained in violation of his constitutional rights protected by sections 7 and 10(

b) of the Canadian Charter of Rights and Freedoms [1] as well as the Common Law Confessions Rule. [ 5 ] The prosecutor does not seek to tender the statement as evidence, but wishes to reserve its right to use it in cross-examination, should Mr. Maier decide to testify. [ 6 ] A blended voir dire was held. This is the Court’s ruling. THE EVIDENCE [ 7 ] The interview with Mr. Maier was recorded, and was viewed in it entirely by the Court during the voir dire [2] . This was the only evidence that was presented by either party. [ 8 ] Mr.

Maier is visibly upset at the beginning of the interview and expresses his frustration to Detective Sergeant (hereinafter “D/S”) Champagne and his desire to know the charges against him. In watching the interview, the Court comes to understand that although Mr. Maier had been informed of the charges at the time of his arrest, he was anxious to know the details and the specific evidence against him. [ 9 ] After introducing herself, D/S Champagne asks Mr.

Maier to tell her if he needs anything and he mentions his concern about his electric scooter which he parked outside the police station in a 10 minute parking zone, not knowing that he would be arrested and detained. She essentially says that there is nothing that she can do but that he should remind her about it at the end of the interview. [ 10 ] The first 15 or so minutes of the interview are quite tense. D/S Champagne tries to validate basic information with Mr. Maier, explains the charges to him and confirms that he understands the rights that he had been advised of at the time of his arrest. Mr.

Maier interrupts her repeatedly, causing her to become frustrated. [ 11 ] When Mr. Maier refuses to validate his address, repeating approximately 8 times that his lawyer advised him not to communicate with her and that he has nothing to say, the following exchange occurs : MC: Saying your address is not incriminating. What’s incriminating is what he means not to talk about. BM: Whose he…

MC: Your lawyer… BM: No it’s a female. My lawyer is a female. MC: Whatever, he, she the lawyer… [ 12 ] Following this exchange, Mr. Maier still does not provide his address, insisting that he would like to see his lawyer, that he has nothing to say and that he will communicate through his lawyer. [ 13 ] D/S Champagne confirms with Mr. Maier that he has spoken to his lawyer and is satisfied with the consultation. Mr. Maier complains about the fact that he was handcuffed, and about the conditions in the cell.

D/S Champagne replies, sarcastically, “ well, you are not in a hotel here ”. [ 14 ] D/S Champagne continues to ask Mr. Maier questions, both general in nature like where he is from and his phone number, as well as more specific like whether he knows the complainant. On each occasion, Mr. Maier replies that he has nothing to say other than that he is innocent and that he will deal with everything with his lawyer in court, as per the advice given to him. [ 15 ] The interview remains quite antagonistic until about the 25 minute marker.

At one point, D/S Champagne says, again in a sarcastic tone, “ you are so pleasant to be with ”. A few minutes later when, in response to one of her questions, Mr. Maier states that he will not get into hypotheticals, D/S Champagne chuckles and says : “I think you are going to go back in your cell because you are not cooperative, so whatever she said you can find out in court I think because right now you’re… I don’t find you pleasant at all, I’ve never had someone who is so unpleasant to work with, really, never ever ever in my life…” [ 16 ] D/S Champagne notes that Mr.

Maier wants information from her regarding the details of the charges but that he is refusing to cooperate with her and asks “ where is the exchange ”. Mr. Maier replies that “ he is the one being accused ” and that he just wants to know the details of the charges. [ 17 ] D/S Champagne explains her role as investigator and that she is meeting him out of courtesy because there are two sides to every story. She specifies that Mr. Maier will “ say something or not ” and that it is “ his prerogative ”. She says that he will be detained whether he speaks or not. [ 18 ] After about 21 minutes, Mr.

Maier says that he does not wish to speak, that his lawyer told him that he has nothing to gain and that he is concerned that he will say the wrong thing. D/S Champagne replies: “ But you’re smart…I can see you’re a smart boy ”. Mr. Maier agrees that he is smart but says that his lawyer is a professional. [ 19 ] Later, Mr. Maier states that the advice that he received from his lawyer “ who is the only one in his corner ” is to not say anything. To that, D/S Champagne replies “ ya, they always say that, that’s their job ”. Mr. Maier states that it seems to be good advice.

He then repeats that his lawyer told him not to say anything. [ 20 ] D/S Champagne continues to ask Mr. Maier questions, to which Mr. Maier reiterates his wish not to discuss anything with her and that his lawyer advised him not to say anything. By this time, Mr. Maier has invoked his right to silence or his wish to follow his lawyer’s advice at least 15 times. He insists again that he does not wish to say anything and that he would like D/S Champagne to respect that. In reply, D/S Champagne asserts that she can continue talking. [ 21 ] At that point Mr.

Maier asks, as he has been doing from the beginning of the interview, for more details as to the allegations and whether he can see the documents contained in D/S Champagne’s file. She replies that his lawyer will have them tomorrow, but Mr. Maier asks if he can see them now.

When D/S Champagne replies in the negative, he observes that “ it’s sort of like you can show me what you want to show me so you can get what you want to get …” [ 22 ] At 25 minutes into the interview, D/S Champagne asks whether he will give her one thing if she will give him one thing, stating “ I have good things in my file, look how many things I have ”. [ 23 ] There is a turning point in the interview at about 26 minutes and the conversation takes on a more subdued tone. A short discussion about Mr. Maier’s background and work as a chef ensues. Mr. Maier refuses to say where exactly he works.

When D/S Champagne asks him what type of house he lives in (a home, a condo...), Mr. Maier states that he doesn’t feel like answering any more questions. [ 24 ] However, the discussion continues, mainly about Mr. Maier’s hobbies and work. The tone is calm and cordial. When subjects come up that Mr. Maier does not wish to discuss, he says so. When D/S Champagne turns to the subject of his sex life, Mr. Maier says that he has nothing to say about it and would appreciate if she wouldn’t ask him. D/S Champagne replies that he is allowed to just say no. As the conversation turns to sexual assault in general, Mr.

Maier tells D/S Champagne that she is “ pretty smooth ” to which she replies “ I am smooth ”. [ 25 ] From approximately minute 52 to minute 60 of the interview, D/S Champagne asks Mr. Maier specific questions about the case. She shows him a print-out of an exchange between him and the complainant on social media. Mr. Maier repeats on a number of occasions that he has nothing to say and will address everything through his lawyer. There is also some confusion about the date of the incident and of the other contacts between Mr. Maier and the complainant. [ 26 ] At about the one hour mark, Mr.

Maier becomes upset and raises his voice, repeating that he has nothing to say. He complains that D/S Champagne has him locked up in a cell forcing him to speak to her when his lawyer told him not to say anything. D/S calmly replies that he is detained, and that he is allowed not to talk. When Mr. Maier raises his voice, D/S tells him that if he calms down she will tell him more of the details about the charges, but if not she will leave. Mr. Maier replies that he would like to know more.

[ 27 ] D/S Champagne continues giving Mr. Maier some of the details included in the complainant’s statement. She then explains how investigations work. [ 28 ] At one hour six minutes, Mr. Maier states that he is cold, that he had asked for a cover but had not been provided with one. D/S Champagne replies that if he is nice with her she will arrange for him to be given a cover, stating “ is that a deal? ” [ 29 ] D/S Champagne continues explaining the investigatory process in general and then asks Mr. Maier what the results would be if the complainant did a rape kit in this case. Mr.

Maier replies that he will not speculate. D/S then says that she’s going to leave the room and asks him to think about it while she is gone. Mr. Maier replies that he will not speculate and will not answer the question. [ 30 ] D/S Champagne leaves the room for 12 minutes [3] . The recording continues to show Mr. Maier as he is alone in the interview room. He states out loud that he is cold and hungry. [ 31 ] When D/S Champagne comes back to the room, Mr. Maier mentions that he is cold and tired and hungry as he had eaten almost nothing that day.

He had been provided with a ham sandwich but he is mostly vegetarian. [ 32 ] D/S Champagne clarifies the confusion regarding the relevant dates in the case, provides more of the details that emerge from the complainant’s statement and asks a number of questions. Mr. Maier either remains silent or says that he has nothing to say and that his story will come out in court as per the advice of his lawyer. Approximately one hour and 41 minutes into the interview, the following exchange occurs : MC: I want to know where she is lying, if she is.

Where is the… BM: I’d like to see the evidence MC: …well you’ll see it in Court tomorrow. But I just told you … BM: You can’t show me? MC: No… BM: O.k. MC: I gave you the story now. So where she is lying. Where is the difference between your story and her story? BM.: Well, that’s gonna come out in Court through my lawyer. MC: I’m trying to build a puzzle. I’m trying to help you if you have something to explain. BM: And as I said, my lawyer has suggested me that I don’t explain anything until she is present. MC: Did not you not hear the word “Iceberg” maybe. It can be.

BM: I would like to consult with my lawyer before I make any comment on these charges. MC: Because, honestly, Ben, you know…. There could be a lot a things…. I think that… BM: Based on what you told me, I can 100% prove that I am not guilty. MC: Well, I am happy for you, it’s time to give me your alibi if you have one or reason so I can validate it tonight so that tomorrow you will have something to show confirmed. Because I don’t know how to help you right now. BM: ok…so when is this alleged to have happened? MC: Saturday night to Sunday.

Bootlegger, cameras, we can validate a lot a things, Ben, do you understand, like you are not here and you’re not gonna be detained for fun. We know where we are going with our things but I know that there is always two side and the middle of the story. I am waiting for you. BM: I would really love to tell you my side of the event. MC: I’m waiting for you to tell me. BM: And as my legal counsel that I am paying to advise me on this legal issue has advised me… MC: Actually it was free of charge but it is your right to follow them but that is their job. They say that to everyone. BM: Yes, I have not paid him yet.

MC: Her? Yes. Her, ya. Him. The lawyer. Anyway…they told me telling you anything, is not gonna help me. MC: I’ve been talking to you a few hours I think, I pecked you as being smart. BM: I am smart. The smart guy in my brain tell me listen to your lawyer and not you who I don’t know.

MC: You know the lawyer? You don’t even know the name of your lawyer. BM: I know she is a lawyer and I know that you are a cop who’s got a charge on me right now. MC: I try to find the story out. I am not trying to accuse you more. I am just trying to figure out what happened that night. Why is this chiquita, lying to the cops then, give me a reason why she wants you in trouble. Why she is lying about this. What would be her, what would she gain from lying, I need to understand. Cause some do lie, some do, and that why I asked you some reasons before.

BM: I would like to have that with my lawyer, it would make more sense to me. MC: But you’re smart. BM: To have legal representation. Because since the beginning of the conversation, anything you say can and will be used against you in the court of law. MC: And if you have an alibi that too will be used for you in the Court (inaudible). BM: But I don’t lose anything if by letting my lawyer present that, who is the trained lawyer. I don’t trust myself to say the story exactly how I want to present the story and I don’t trust you to record and write it down.

MC: If you say it, it comes out how you say it, I can’t play with it. BM: How do I know you can play with it. MC: I’m gone make des montages with your face saying other thing, you think, I’m gone do this all night long and go to Court with it tomorrow, really? MB: No, I don’t think you are. I do think that me talking to my lawyer and following her advice of not saying anything to you specifically… MC: It’s fine. But you know how I perceive you… BM: …I take this very very seriously. MC: I hope you do. BM: …this is the worst… MC: ….did you ever have…. BM: This is the worst thing you can bring upon me.

I don’t want this to have anything this time to do with my good name. [ 33 ] And then a little later: BM: You know what, I don’t need your help. I don’t need your help. I have the truth on my side. MC: Don’t get upset Ben. BM: I don’t need your help and you could also hurt me. I don’t see how you are going to help me. I see how (inaudible), me and my lawyer can help myself and I don’t need your help. [ 34 ] At 1 hour and 49 minutes into the interview, Mr. Maier states that he wants to tell D/S Champagne exactly what happened but that his lawyer told him not to.

The following dialogue ensues : BM: I want to tell you exactly what happened because it completely like …removes any guilt because… MC: Why don’t you do it? BM: …because my lawyer told me not to. MC: You don’t look like a bad person to me. I don’t think … BM: …that is just some cop talking, getting me to say more shit… MC: …no. BM: I would love to clear the air and clear my name and clear the air right now but my lawyer told me don’t talk. Maybe I can talk to my lawyer right now? Can we call her back? MC: She is gonna repeat the same thing. You know she’s gonna repeat it. BM: But that make sense to me.

MC: because of course that is her job. But if you have a good alibi, not an alibi, but an explanation… BM: …I don’t have any, I am not a cop or a doctor….

MC: …but you have common sense. (inaudible) BM: Yes. MC: You are a smart guy (inaudible). BM: And like the statement I said, to me, in sex, verbal consent is the most important imperative. MC: So where did she not get it right or where does she think you did not understand the consent… BM: …so that will come out in Court. I don’t know if I should make a statement right now because I am worried that I am going to incriminate myself. MC: It’s obvious that your DNA is all over, so you can’t say that you didn’t have sex, ok. You agree with that. The problem here is the consent. Ok. Do you understand what I am saying?

BM: Yes I understand what you are saying. MC: Exactly. Let me just read what she says (inaudible). She brings up the safe word … it will be iceberg BM: Well, this is like timeframe? MC: I don’t know what time it is. You hold her hand up in the air, you kiss her, you undress her… BM: Are we at my home, are we in the street, is it before or after? MC: I think you are know where you are. BM: You know, I’m asking when you say this… MC: Listen, I am not the main investigator.

I think you are at home but I don’t want to be mistaking ok but the story is here that you’re kissing and then she says listen there won’t be any sex but she does say she wants a safe word. So for me, that is like, what does that mean, are you in or out? I don’t know what she means. Maybe that’s where you got it, that you’re messed up. BM: I can clear it all up for you really easy… MC: …and then, that’s when you start slapping her in the face but that is something that BDSM do, so do you understand? BM: I understand.

MC: And then she said she couldn’t hear from an ear and then she says that she said no and said the safe word and that’s where she says like he continued, you strangled her, spat on her, she lost consciousness so…but… BM: Those are lies. MC: Which one is a lie? That she said the safe word or that you (inaudible). BM: I want to speak to my lawyer. MC: But which one is a lie. I’m giving you a lot of juice. BM: It is all lies, all lies. Every part of that is a lie. MC: So, you didn’t hit her? BM: I did not hit her. MC: Did you spit on her? Remember DNA and remember bruises.

BM: When you say hit, what do you mean, because I didn’t hit anybody. MC: Ok so what did she perceive as being a hit? BM: I don’t know, I think I should to talk to my lawyer. This is so stupid. MC: I am sure it is. I wasn’t there, when I read this… BM: But you already know what exactly happened. Or, maybe you don’t. You are missing one thing. Man, I can’t talk to you anymore. I have to go back to my cell and talk to my lawyer tomorrow. I’m worried that I’m going to incriminate myself. [ 35 ] D/S Champagne continues by telling Mr. Maier her theory as to what happened.

Notwithstanding the fact that by this time he has invoked his right to silence [4] at least 30 times, Mr. Maier starts to give his version of the events. This begins at 1 hour 54 minutes into the interview and continues until 2 hours 9 minutes. [ 36 ] After Mr. Maier finishes providing his version, D/S Champagne tells him that she appreciates his honesty. He replies that he has nothing to hide, that what he told her is what he would tell his lawyer and the court and so “ it’s almost better that I just come clean and

tell you right now ”. [ 37 ] Mr. Maier continues answering questions about the incident until 2 hours and 14 minutes into the interview. At that point, D/S Champagne asks him again to confirm his address. Mr. Maier replies that he really needs to “ deal with his lawyer on that one ” because he is scared to incriminate himself. [ 38 ] The interview ends with Mr. Maier asking D/S Champagne if, based on what he has told her, she thinks he has committed any crime. D/S Champagne does not answer but urges him to trust the process. As they walk out of the room, D/S Champagne tells Mr.

Maier that she will ask her colleagues to provide him with a blanket, and also suggests that he be given a cheese sandwich. ANALYSIS The Law The Common Law Confessions Rule [ 39 ] When an accused person or detainee makes a statement to a person in authority, before such statement can be used in any way, the prosecution must prove beyond a reasonable doubt that the statement was made voluntarily [5] . [ 40 ] The scope and objectives of the Common Law Confessions Rule have expanded over the years [6] .

Whereas in its initial formulation, the Court simply needed to be convinced beyond a reasonable doubt that the statement had not been obtained either by “fear of prejudice or hope of advantage [7] ”, the modern inquiry is much broader. In order for a statement to be considered voluntary, there must be an absence of threats or promises and of a climate of oppression and it must have been obtained from an accused who has an operating mind. Furthermore, there must be an absence of police trickery. [ 41 ] In Tshitenge Masuku c.

R. [8] , the Québec Court of Appeal explained that a global approach is to be taken to the examination the first three components of the common law confessions rule - threats and promises, oppression, and operating mind. [ 42 ] It is well-established that the analysis is contextual. There is no single factor which will automatically lead to a finding of lack of voluntariness. Courts must “strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all of the aspects of the rule [...]” [9] .

In this regard, the personality and individual characteristics of the accused are relevant [10] . [ 43 ] The question of police trickery commands a distinct analysis. While it is still related to voluntariness, its more specific objective is maintaining the integrity of the criminal justice system [11] .

The relationship between our desire to enable the authorities to use every means at their disposal to investigate and solve crimes, on the one hand, and our commitment to the respect of fundamental, constitutionally protected rights, on the other, was expressed by the Supreme Court of Canada as follows : The investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules.

The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not through the rule be hampered in their work. What should be repressed vigorously is conduct on their part that shocks the community. [12] [ 44 ] An otherwise admissible statement will be excluded under this prong only if the police conduct is so shocking that its rejection is necessary because otherwise, the reputation of the criminal justice system would be brought into disrepute. The Right to Silence –

Section 7 of the Charter [ 45 ] The right to silence included within

section 7 of the Charter protects the choice of an individual as to whether or not to speak with the authorities. [ 46 ] The confessions rule and the right to silence are manifestations of the principal against self-incrimination [13] . In the context of an interrogation of a detainee by an obvious person in authority “the confessions rule effectively subsumes the constitutional right to silence” [14] : [I]f the Crown proves voluntariness beyond a reasonable doubt, there can be no finding of a Charter violation of the right to silence in respect to the same statement. The converse holds true as well.

If the circumstances are such that an accused is able to show what a balance of probabilities a breach of his or her right to silence, the Crown will not be in a position to meet the voluntariness test. [15] [ 47 ] When an accused person invokes his or her right to silence, the authorities are not precluded from continuing to ask questions. Indeed, as the Supreme Court explained in Singh : What the common law recognizes is the individual's right to remain silent. This does not mean, however, that a person has the right not to be spoken to by state authorities.

The importance of police questioning in the fulfilment of their investigative role cannot be doubted. [16] [ 48 ] Indeed our courts have long recognized the twin goals of protecting the rights of the accused “without unduly limiting society’s need to investigate and solve crimes” [17] . [ 49 ] As such, the fact that an investigator continues to question an accused even after he or she has repeatedly invoked his or her right

to silence will not in and of itself lead to the conclusion that any of statement which ensues was obtained in violation of the right to silence or the common law confession rule [18] . [ 50 ] The ultimate question is whether the accused exercised his or her free will in providing a statement or whether, in the overall circumstances of the interview, the will of the accused was overborne by police conduct [19] . The Right to Counsel –

Section 10 (b) [ 51 ] Upon arrest or detention, individuals have the right to counsel, which has two components. The informational component requires that individuals be advised of their right to consult counsel. If the individual expresses a desire to do so, the implementational component requires that he or she be afforded that opportunity. [ 52 ] The right to silence protected by s. 7 and the right to counsel enshrined in s. 10(

b) work together “to ensure that a suspect is able to make a choice to speak to the police investigators that is both free and informed” [20] . [ 53 ] Just as is the case with respect to the right to silence, it is well-established that even after an individual has exercised his or her right to counsel and indicates that he or she does not wish to provide a statement, the police may continue their questioning. In fact, the police may use different strategies and techniques in order to persuade an accused to make a statement. [ 54 ] There are, however, limits to the techniques that may be employed, including restrictions on what investigators can say about the accused’s lawyer : 14 […] s. 10(

b) specifically prohibits the police […] from belittling an accused's lawyer with the express goal or effect of undermining the accused's confidence in and relationship with defence counsel. It makes no sense for s. 10(

b) of the Charte r to provide for the right to retain and instruct counsel if law enforcement authorities are able to undermine either an accused's confidence in his or her lawyer or the solicitor-client relationship. [21] [ 55 ] As explained by Downs J. in Dion , allowing the police to engage in behaviour or make comments with a view to eroding the confidence of the accused in his or her lawyer would essentially rob the right to counsel of its substance [22] .

II Application The Burden of Proof [ 56 ] The burden of proof to with respect to the Common Law Confessions Rule rests with the Crown who must prove voluntariness beyond a reasonable doubt. If the Crown is unable to meet this burden, the statement will be inadmissible and cannot be used for any purposes. [ 57 ] On the other hand, as with all alleged Charter breaches, the burden of proof is on a person alleging a violation of his or her right to silence or right to counsel to prove such violations on a balance of probabilities.

If the Court concludes as to the existence of a violation, there must then be an examination of the appropriate remedy. In most cases, an exclusion of the statement from evidence is sought pursuant to section 24(2) and the Court must engage in the analysis set out in Grant [23] . [ 58 ] While the burdens of proof with respect to the common law rule and the alleged Charter violations are different, the submissions put forth by Mr. Maier to justify his position on each are overlapping. Mr. Maier’s Submissions [ 59 ] To begin with, Mr.

Maier argues that although he was informed of and able to exercise his right to counsel, D/S Champagne made comments on a number of occasions which may have served to undermine his confidence in his lawyer. [ 60 ] In particular, he highlights the exchange that took place very early on in the interview when D/S Champagne would have said “ whatever, he, she the lawyer […]” [24] . However, upon viewing the interview, it is clear to the Court that this was nothing more than a miscommunication as to whether or not the lawyer was male or female. [ 61 ] Mr.

Maier also takes issue with D/S Champagne’s comments that lawyers always tell their clients not to say anything, that “ that’s their job ” [25] . Later in the interview, when Mr. Maier asks to call back his lawyer, D/S Champagne says she would just repeat the same thing (that is, to remain silent) as “ it’s their job ” [26] . When Mr. Maier states that he thinks that he should follow the advice of legal counsel that he is paying, who told him not to talk, D/S Champagne intervenes and says “ it was free of charge ” [27] .

Finally, when Mr Maier affirms that he would rather follow the advice of his lawyer than that of D/S Champagne who he doesn’t even know, she replies, in a condescending tone, “ oh, you know your lawyer? You don’t even remember the name of your lawyer ” [28] . [ 62 ] Mr. Maier also underscores the fact that he asserted his right to silence and his desire to consult counsel again on multiple occasions throughout the interview, and that D/S Champagne simply continued her questioning. [ 63 ] In addition to the above arguments, Mr.

Maier points to the fact that he mentions during the interview that he is cold and hungry. When he is alone in the room (but presumably being watched on close circuit television), he also mentions out loud that he is tired. [ 64 ] It also emerges from the interview that D/S Champagne clearly exploits Mr. Maier’s fervent desire to know the details of the allegations in order to persuade him to provide his version. At one point, she even explicitly proposes an exchange.

[ 65 ] Finally, Mr. Maier suggests that D/S Champagne put pressure on him to provide his version, even going so far as to say that “now” was only time to give his alibi. [ 66 ] Mr. Maier suggests that the net effect of all of the various interrogation tactics used by D/S Champagne amount to “police trickery” and that admitting his statement would bring the administration of justice into disrepute.

Analysis [ 67 ] In light of the above, has the Crown proved the voluntariness of the statement beyond a reasonable doubt? [ 68 ] If so, has the accused established a violation of either his right to silence or right to counsel on a balance of probabilities? Denigration of counsel [ 69 ] The Court agrees with Mr. Maier that the observations made by D/S Champagne about the advice given to him not to speak are problematic. Indeed, any time the police comment on the advice received from counsel “they tread on dangerous ground” [29] .

Remarks which suggest that the advice provided by counsel is boilerplate, or nor personalized, are also to be avoided as they may create the impression that the lawyer has no particular interest in the plight of this particular client [30] . Denial of a second opportunity to consult counsel [ 70 ] There was, however, no obligation for D/S Champagne to allow Mr. Maier consult his counsel a second time, despite his repeated requests to this effect. On this point, the jurisprudence is clear that an accused has the right to one single satisfactory consultation with counsel [31] .

It is only when there are new procedures being contemplated, a change in jeopardy, or reason to believe that the accused has not understood his right to counsel that the right to a second consultation is triggered [32] . None of these situation were present in Mr. Maier’s case. Ignoring repeated assertions of the desire to remain silent [ 71 ] The fact that D/S Champagne essentially ignores Mr. Maier’s numerous assertions of his desire to remain silent is certainly something which must be considered.

The approach to be taken in such a situation was set out by the Supreme Court of Canada in Singh as follows : 53 It must again be emphasized that such situations are highly fact-specific and trial judges must take into account all the relevant factors in determining whether or not the Crown has established that the accused's confession is voluntary. In some circumstances, the evidence will support a finding that continued questioning by the police in the face of the accused's repeated assertions of the right to silence denied the accused a meaningful choice whether to speak or to remain silent: see Otis .

The number of times the accused asserts his or her right to silence is part of the assessment of all of the circumstances, but is not in itself determinative. The ultimate question is whether the accused exercised free will by choosing to make a statement : Otis , at paras. 50 and 54 . [33] (Emphasis added) [ 72 ] Ultimately, the repeated assertion of his right to silence is one of the important factors to be weighed in assessing the overall voluntariness of the statement. Oppressive circumstances [ 73 ] While Mr.

Maier mentions during the interview [34] that he is cold, tired and hungry, these factors clearly do not play a significant role in the interview. These discomforts come nowhere close to constituting the types of oppressive circumstances contemplated by the courts in the context of the Common Law Confessions rule. As explained by the Supreme Court in Oickle : “Oppression clearly has the potential to produce false confessions. 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.” [35] [ 74 ] Similarly, the fact that on a few brief occasions D/S Champagne addressed Mr. Maier in a sarcastic manner is clearly not determinative. More specifically, none of these factors appeared to play any role in prompting Mr. Maier to provide a statement detailing his version of the incident. Inducements [ 75 ] D/S Champagne never offered Mr.

Maier an inducement in the narrow “ Ibrahim ” [36] sense of the word. She did, however, clearly offer an exchange of information. [ 76 ] It is not every inducement which renders a statement involuntary [37] . The Court of Appeal of Ontario expressed this point as follows in R . v. Richards : […] The mere offer of an inducement is not improper. An inducement only becomes improper when, on its own or in combination with other factors, the inducement is strong enough to raise a reasonable doubt about whether the accused's will has been overborne: Oickle , at paras. 56, 57 ; R. v.

Spencer , 2007 SCC 11 , [2007] 1 S.C.R. 500 , at para. 15 . [38]

[ 77 ] It is not the existence of D/S Champagne’s offer to trade information with Mr. Maier that is determinative but rather the impact that such inducement had on him.

Implying that this was his only chance to provide his version [ 78 ] Contrary to counsel’s assertions, at no time did D/S Champagne say or even imply that this was his only chance to provide his version or his alibi. [ 79 ] At about one hour and 40 minutes into the interview, D/S Champagne makes the following comment : “It’s time to give me your alibi or a reason or something so that I can validate tonight, so that tomorrow you’ll have something to show, confirmed.” [ 80 ] There is nothing wrong with D/S Champagne explaining to Mr.

Maier that if he provides her with information which requires further investigation, she would act on it [39] . [ 81 ] It was eminently clear throughout the interview that Mr. Maier knew that he would have the opportunity to provide his version of the events through his lawyer in court. This statement did nothing to dispel his correct understanding of his rights. [ 82 ] The Court opens a parentheses here to mention that since Mr. Maier chose not to testify on the voir dire, the Court has been left to come to its own conclusions about the impact of the various interrogation techniques employed by D/S Champagne.

The videotape is very helpful in this regard. In addition to hearing the accused’s words the Court was able to observe his body language and facial expressions and overall demeanour, as well as that of D/S Champagne. [ 83 ] In light of the above, keeping in mind that the analysis must always be contextual, and that a global approach must be taken to any interrogation, the Court considers the following parts of the interview to be less than ideal: • The improper remarks made by D/S Champagne regarding the advice Mr. Maier received from his lawyer. • Mr.

Maier’s repeated expression of his wish to remain silent. • D/S Champagne’s comment that she “has lots of juice in her file that she would share with him if Mr. Maier would share his version with her” [40] . [ 84 ] On the other hand, the Court considers that: • Other than a few moments of sarcasm, D/S was cordial throughout the interview. At no time did she use aggressive body language. When she did raise her voice or become more firm it was always in response to Mr. Maier’s aggressive and hostile attitude, generally in a bid to calm him down. • Even during D/S Champagne’s brief moments of sarcasm, Mr.

Maier did not seem at all intimidated. His words and body language are consistent throughout the interview. Essentially, he seems frustrated and upset about finding himself charged with what he knows to be a serious crime and says that it is “very scary”. But at no time does he seem to lose control of his behaviour or of what he is saying. • Mr. Maier showed himself to be intelligent and strong-willed throughout the interview.

He clearly understood the role of counsel, his right to silence, the fact that what he said could be used against him “in a court of law” and that he had nothing to gain by speaking. • On a number of occasions after Mr. Maier invokes his right to silence, D/S Champagne correctly explains that while he has the right not to talk, she is still allowed to talk. • D/S Champagne makes it clear that Mr. Maier will remain detained regardless of whether he speaks to her or not. • One hour into the interview, D/S Champagne tells Mr.

Maier that if he calms down she will tell him more details about the charges but if not she will leave. Faced with the choice, Mr. Maier says that he wishes to hear more. If Mr. Maier was truly feeling intimidated and was worried that his “will to remain silent would be overborne” he would have welcomed D/S Champagne’s offer to “leave”. Instead, he sought to continue the conversation. • D/S Champagne tells Mr. Maier that he will have the opportunity to see all of the evidence and get all of the information about the case from his lawyer the following day.

In analysing the impact of the “inducement” offered by D/S Champagne that she would give him more details about the case if he spoke to her, this is an important factor, as there was never any suggestion that it was only by providing a statement that Mr. Maier would receive the information he sought. On the contrary, he was clearly told that he would receive it the following day. • Furthermore, by the time Mr.

Maier begins providing his version of the incident, approximately 1 hour and 54 minutes into the interview, D/S Champagne had already provided him with significant information about the details of the complainant’s statement and the other evidence in the case. Mr. Maier therefore could not have been improperly “induced” to make a statement in exchange for information, as he had already received the information. • Despite the inappropriate comments made by D/S Champagne about the advice that Mr. Maier had received from his lawyer as well as about his relationship with her [41] , Mr.

Maier’s opinion of his lawyer and of her advice was clearly not affected. In fact, after providing his version of the alleged sexual assault, Mr. Maier refuses to answer other questions (about his address) in reliance on the advice he received from his lawyer. Mr. Maier thus clearly still has confidence in his lawyer and the advice she has provided. In the

circumstances, it cannot be said that D/S Champagne’s remarks robbed Mr. Maier’s right to counsel of its substance. III CONCLUSIONS The Common Law Confessions rule [ 85 ] In assessing the admissibility of Mr. Maier’s statement, the Court is mindful of the significant power imbalance between the individual and the state. The Common Law Confessions rule has gone beyond the narrow threats/promises formulation and focuses on voluntariness more generally [42] . In the matter at hand, the ultimate question is whether the statement elicited from Mr.

Maier is the result of behaviour or circumstances which essentially deprived him of his free choice [43] . [ 86 ] While there were problematic aspects of the interview [44] , the Crown has succeeded in proving the voluntariness of the statement beyond a reasonable doubt. There were certainly no threats or inducements in the narrow sense of the word, and for reasons already explained, the offer to “exchange information” cannot be seen to have induced Mr. Maier to provide a statement. The circumstances were not oppressive, and they certainly did not cause Mr.

Maier to make a statement, and there is no suggestion that Mr. Maier did not have an operating mind. [ 87 ] On the contrary, Mr. Maier proved himself to be intelligent, cognizant of his rights, and very much in control of what he chose to say (or not say) and when he chose to say it. [ 88 ] D/S Champagne’s words and behaviour may have had a different impact on another accused. However, in the case at hand, keeping in mind Mr. Maier’s attitude and behaviour, and the precise circumstances of this interview, a global and contextual approach leads to only one conclusion, which is that Mr.

Maier chose to provide the statement. In other words, his will was not overborne. [ 89 ] The Court adds that the admission of the statement would not bring the administration of justice into disrepute, and there was no police trickery. The Right to Silence [ 90 ] Given the Court’s conclusion with regard to the voluntariness of the statement, and the fact that the Common Law Confessions rule subsumes the right to silence in the context of a custodial interrogation with an obvious person in authority, the accused has failed to prove on a balance of probabilities that his right to silence was violated.

The Right to Counsel [ 91 ] Mr. Maier was properly informed of this right to counsel and had the opportunity to exercise it, before any questioning occurred. [ 92 ] While D/S Champagne should not have made comments regarding the advice Mr. Maier received from his lawyer, nor with regards to his relationship with her, these words appear to have had no impact. The Court watched the entire interview, assessed all of Mr. Maier’s words and observed his body language throughout.

This exercise made clear that D/S Champagne’s remarks did not have the “effect of undermining the accused’s confidence in and relationship with counsel” [45] . [ 93 ] Furthermore, D/S Champagne did not have the obligation to facilitate a second consultation of counsel [46] . [ 94 ] In the circumstances, the accused has failed to prove a violation of his right to counsel on a balance of probabilities.

Summary [ 95 ] None of the imperfect aspects of the interview viewed on their own or in combination raise a doubt as to the voluntariness of Mr. Maier’s statement, and there was no violation of Mr. Maier’s constitutionally protected rights. FOR THESE REASONS, THE COURT: DENIES the Motion for exclusion of evidence; DECLARES the statement provided by the accused to be voluntary and admissible. __________________________________ SUZANNE COSTOM, J.C.Q. Me Jérôme Laflamme Counsel for the DPCP

Me David Leclair Attorney for the accused Dates of hearing (on the voir dire) February 18, March 25 and April 6, 2022