R. v. Way, 2011 NBCA 92

COURT OF APPEAL OF NEW BRUNSWICK 67-10-CA HER MAJESTY THE QUEEN APPELLANT SA MAJESTÉ LA REINE APPELANTE - and - - et - CATHERINE LYNN WAY RESPONDENT CATHERINE LYNN WAY INTIMÉE R. v. Way, 2011 NBCA 92 R. c.

Way, 2011 NBCA 92 CORAM: The Honourable Justice Larlee The Honourable Justice Richard The Honourable Justice Bell CORAM : L’honorable juge Larlee L’honorable juge Richard L’honorable juge Bell Appeal from a decision of the Court of Queen’s Bench: April 27, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 27 avril 2010 History of case: Decision under appeal: 2010 NBQB 154 Preliminary or incidental proceedings: N/A Historique de la cause : Décision frappée d’appel : 2010 NBBR 154 Procédures préliminaires ou accessoires : S.O.

Appeal heard: February 9, 2011 Appel entendu : Le 9 février 2011 Judgment rendered: October 6, 2011 Jugement rendu : Le 6 octobre 2011 Reasons for judgment: The Honourable Justice Richard Motifs de jugement : L’honorable juge Richard

Concurred in by: The Honourable Justice Larlee The Honourable Justice Bell Souscrivent aux motifs : L’honorable juge Larlee L’honorable juge Bell Counsel at hearing: For the appellant: Nicole Angers For the respondent: James J. Matheson Avocats à l’audience : Pour l’appelante : Nicole Angers Pour l’intimée : James J. Matheson THE COURT The Attorney General’s appeal against acquittal is dismissed. LA COUR Déboute le procureur général de l’appel interjeté de l’acquittement. The judgment of the Court was delivered by RICHARD J.A. I.

Introduction [ 1 ] Catherine Lynn Way was charged with the second degree murder of her common law husband. At trial, her counsel sought the exclusion of videotaped statements she had given to the investigating officers on the ground these were obtained in a manner that infringed rights that are guaranteed to her by the Canadian Charter of Rights and Freedoms and because the admission of this evidence in the proceedings would bring the administration of justice into disrepute. In a decision reported at 2010 NBQB 154 , 358 N.B.R. (2d) 219 , a judge of the Court of Queen’s Bench excluded the statements.

The prosecution did not seek to adduce any other evidence and, as a result, Ms. Way was acquitted. [ 2 ] The Attorney General appeals the acquittal on the grounds the trial judge erred in finding a violation of Ms. Way’s Charter rights and, alternatively, for excluding the statement on application of s. 24(2) of the Charter . Following the hearing of the arguments on appeal, we dismissed the appeal and indicated that reasons would follow. These are those reasons. II. Background [ 3 ] On April 5, 2009, Ms.

Way called the 911 service in Moncton reporting that her common law husband, Normand Richard, had slipped and fallen on a knife, stabbing himself in the process. Only four people were in the house when the incident happened: Mr. Richard, Ms. Way, and their two infant children. An ambulance and the police were dispatched to their Moncton home and Mr. Richard was transported to the hospital, where he was subsequently pronounced dead. Upon learning of her husband’s death, Ms. Way collapsed at the hospital. Medication to calm her was administered, and she was given a prescription for more

medication. Upon leaving the hospital, Ms. Way had the prescription filled. She then went to her mother’s home, where her children had been taken. [ 4 ] Police officers who attended at the Richard/Way residence considered Mr. Richard’s death to be suspicious. They secured both the residence and Mr. Richard’s body in order to pursue their investigation. Two officers from the Major Crime Unit, Corporal Adrien Tompkins and Constable Sylvie Carrière, eventually made their way to the home of Ms. Way’s parents to question Ms. Way, but, because there were many people in the home, including children, they asked Ms.

Way to attend at the police detachment. At that point, the officers knew Mr. Richard had died as a result of a stab wound to the heart and that Ms. Way had been the only other adult present in the home when the incident occurred. [ 5 ] In the company of her mother, Ms. Way attended at the police station at approximately 5:30-5:45 p.m. Cpl. Tompkins and Cst. Carrière met them in the public lobby and took Ms. Way through a security door to an interview room, informing her mother she could not accompany her daughter. Twice the elder Ms. Way asked if they should consult a lawyer and twice Cpl.

Tompkins replied “no”. [ 6 ] At this point neither of the officers informed Ms. Way she had the right to call a lawyer and she was not given any of the usual cautions routinely given before statements are taken from people suspected of a crime. Ms. Way was not informed she had no obligation to provide a statement or that she was free to leave. Instead, Cst. Carrière told her to stay in the interview room and to advise the officer if she needed or wanted anything. In fact, at one point, Ms.

Way inquired whether she could leave and was told she could only leave when the interview was over. [ 7 ] The videotaped interview began at 17:52:56. At first, Cst. Carrière asked Ms. Way to write down everything that happened. The interview then continued for approximately two hours, with Cst. Carrière leaving the room from time to time to consult with Cpl. Tompkins, who was monitoring it from another room. Upon returning from one of these exits, at 19:57:39, Cst. Carrière informed Ms. Way that the police were now investigating the murder of Mr.

Richard and informed her she had “the right to retain and instruct legal counsel without delay”, be it a lawyer of her choice or a legal aid lawyer. In other words, at that point, Cst. Carrière provided the information that is usually given in order to comply with the informational component of the s. 10(

b) Charter right. She also gave Ms. Way the usual cautions administered before taking a statement from a suspect. It was later learned that the officer determined it was time to comply with s. 10(

b) and to give the cautions only after the police received information from a confidential source who stated Ms. Way had killed her husband. [ 8 ] When asked what she wanted to do about her right to contact a lawyer, Ms. Way replied “I don’t know, my mom’s here.” When the question was repeated, she answered “I didn’t do anything.” The interview resumed and Ms. Way, who until then had maintained Mr. Richard had fallen on the knife, eventually explained she had stabbed him in circumstances that would support a plea of self-defence. [ 9 ] Ms. Way was charged with the second degree murder of her common law husband.

She initially elected to be tried by judge and jury, but eventually re-elected to be tried by judge alone. Her lawyer brought a motion in the Court of Queen’s Bench asking the trial judge to exclude from the evidence at trial the statements she had given to the police on April 5, 2009, being the statement given before she was advised of her s. 10(

b) rights and the one she gave afterward. The motion alleged a violation of ss. 9 and 10(

b) of the Charter and sought exclusion pursuant to s. 24(2) .

Section 9 of the Charter provides that “[e]veryone has the right not to be arbitrarily detained or imprisoned”, while s. 10(

b) gives everyone the right, on arrest or detention, “to retain and instruct counsel without delay and to be informed of that right”. If the statements were obtained in a manner that infringed or denied one of those rights, the trial judge would be required to exclude the evidence if it was established that, “having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute” (s. 24(2)). [ 10 ] In support of the motion for exclusion of evidence, both Ms.

Way and her mother filed affidavits, which were admitted with the consent of the prosecution. Neither of them testified. In her affidavit, Ms. Way states that before attending at the police station she had taken one of the pills she had been prescribed at the hospital and that she recalls “very little” of what took place in the interview room. [ 11 ] The prosecution took the position that none of Ms. Way’s Charter rights had been infringed or denied and that, alternatively, the admission of the statements into evidence at trial would not bring the administration of justice into disrepute.

In support of its position, the prosecution called some of the officers involved to testify. Both Cpl. Tompkins and Cst. Carrière testified that until they were advised of the information given by the confidential informant, they were only investigating an accident, although they acknowledged Mr. Richard’s death was considered suspicious. [ 12 ] In ruling the evidence inadmissible, the trial judge made findings of fact that led him to conclude Ms. Way had

been detained and that there was, as a result, an obligation for the police to comply with s. 10(

b) of the Charter. The judge found thatalthough Ms. Way attended at the police station of her own accord, she felt obliged to do so. Upon arrival, she was taken through asecured door into a controlled area of the station and to a closed-door interview room. Ms. Way’s mother was not allowed to accompanyher daughter and was twice told there was no need for her to call a lawyer. In the interview room, Cst. Carrière instructed Ms. Way thatif she needed or wanted something when the officer was not present, she was to knock on the door and wait for the officer to respond. Ms.

Way was questioned repeatedly for over two hours and was never advised she was free to leave. Relying on the Supreme Court ofCanada’s decision in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the judge found there was, in the circumstances, psychologicaldetention, in the sense that a reasonable person in Ms. Way’s circumstances would have concluded by reason of the state conduct thatshe had no choice but to comply. The trial judge’s conclusion in this regard is outlined in the following two paragraphs of his decision: In addition, we have the evidence that Katie Way was "interviewed" for over two hours.

In this regard, the police officers advised theCourt that they merely wished to interview Ms. Way to find out what had happened. At no time during the two hours did they indicatethat, if Ms. Way wished, she could leave, nor did they mention her Charter Rights. Coupled with the physical aspects of the detention, I believe the evidence clearly established that Katie Way was psychologicallydetained. She was in a controlled

section of the police station that her mother could not enter, in a small room with the door closed andthe only way she can do anything is by knocking on the door. When the police officer is present, she is controlling the situation andasking numerous questions over and over. When the police officer was not present, Ms. Way was required to knock on the door and waitfor the police officer.

As stated in Grant at paragraph 44; [p]sychological detention is established ... where the individual ... or areasonable person would conclude... he or she had no choice but to comply ..." In addition, the Supreme Court of Canada concluded inGrant that when the police officer told Mr. Grant to keep his hands in front of him, this constituted detention. In the present case, KatieWay is told to go through the secure door, without her mother who asked if she could go with her, and advised if she needs anything toknock. Then she is questioned for two hours.

In my view, this exhibits more control by the police officers than there was in the Grantsituation. [paras. 47-48] [13] Alternatively, the judge held that Ms. Way did not understand the full meaning of the s. 10(

b) rights when shewas eventually informed of these. He found Ms. Way to have been a young adult who was “not assertive or confident” and he haddoubts “as to her sophistication” (para. 49). The judge held the officers knew or should have known that Ms. Way did not fullyunderstand the choices open to her once she was advised of her right to counsel. [14] Having found a violation of Ms. Way’s s. 10(

b) right, the judge turned to the s. 24(2) analysis. It is now wellknown that in 2009 the Supreme Court devised a new framework in determining whether evidence obtained in a manner that infringed ordenied a right or freedom guaranteed by the Charter should be excluded under s. 24(2). The Court abandoned what was often referred toas the Collins/Stillman approach (based on the decisions in R. v. Collins, (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No.15 (QL) and R. v. Stillman, (SCC), [1997] 1 S.C.R. 607, [1997] S.C.J. No. 34 (QL)). Instead, in Grant and companioncases (R. v.

Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, and R. v. Shepherd, 2009SCC 35, [2009] 2 S.C.R. 527), the Court settled on a new approach whereby a trial judge is to pursue three avenues of inquiry todetermine: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests ofthe accused; and, (3) society’s interest in the adjudication of the case on its merits. [15] The trial judge applied this revised framework for the s. 24(2) analysis to the facts of this case. He held thatthe breach of Ms.

Way’s rights was not “an inadvertent or minor violation” (para. 56) because the officers knew that there had been onlytwo adults in the home when Mr. Richard was stabbed and were aware of the seriousness of the stab wound, and yet they detained herfor questioning and specifically told her mother she did not need a lawyer. The judge stated that while the police conduct did not amountto “the level of willful or flagrant” it was “very close to this type of conduct” (para. 57).

As for the second line of inquiry, the judgepointed out that both the right to counsel and the right against self-incrimination are important rights that are fundamental to theadministration of justice. He held that Ms. Way’s rights were breached “at or near the commencement of the ‘interview’ and also whenshe was ultimately advised of her Charter rights” (para. 59).

On the questions of society’s interest in adjudication on the merits, thejudge pointed out that he was bound to consider issues such as the reliability of the evidence, the seriousness of the offence and theimportance of the evidence to the prosecution’s case. He considered these factors and, acknowledging the statements might be helpful tothe prosecution’s case, noted that the last statement raises possible defences. Balancing all the factors, the judge concluded Ms. Way’sstatements should be excluded. III.

Issues on Appeal [16] The Attorney General puts forth two grounds of appeal, alleging error (1) in the trial judge’s finding of a

violation of s. 10(

b) and; (2) in excluding Ms. Way’s statement. [ 17 ] It should be noted that, in his decision, the trial judge inexplicably rules inadmissible the statements of both Ms. Way and her mother. However, the entire focus of his decision is on the violation of Ms. Way’s Charter rights and the statements obtained from her. Moreover, the Notice of Appeal challenges only the trial judge’s decision to exclude “the statement of the defendant”. For this reason, I will make no further comment on the ostensible exclusion of any statement given by Ms. Way’s mother. [ 18 ] It should also be noted that the judge holds that a person has the right to be told “at the first opportunity after detention of his

section 9 and 10(

b) rights” (para. 54) and that the police officers should have advised Ms. Way “of her

section 9 and 10(

b) rights shortly after her entry into the interview room at the Moncton Police Detachment” (para 55). He also held that, “when she was given her

section 9 and 10(

b) rights, [Ms. Way] did not properly waive those rights” (para. 55). Finally, the judge found breaches of both s. 9 and 10(

b) of the Charter and characterized these as “very serious” (para. 66). Evidently, the trial judge erred if he attributed an informational component to the s. 9 Charter right, which, as stated above, provides that “[e]veryone has the right not to be arbitrarily detained or imprisoned”. While a good portion of the trial judge’s analysis addresses the question whether or not Ms. Way was detained at the police station so as to trigger the informational component of her s. 10(

b) right, at no time does the trial judge ever determine the detention to have been arbitrary. In the circumstances, I suspect that when the trial judge spoke of Ms. Way’s right to be informed of her s. 9 right, what he meant was her right “to be informed promptly of the reasons” for her detention, as guaranteed by s. 10(

a) of the Charter. The Notice of Appeal only alleges error in finding a violation of s. 10(

b) and does not challenge the judge’s finding of a violation of the informational component he erroneously attributed to s. 9. In his arguments, Ms. Way’s counsel on appeal (who was not counsel at trial) acknowledged the real violation that led to exclusion of the evidence was the s. 10(

b) violation. It therefore follows that if the judge’s finding of a violation of s. 10(

b) had been found to be in error, the appeal would have been allowed. However, there is no such error. IV. Position of the parties A. The s. 10(

b) violation [ 19 ] The Attorney General’s position is that although the trial judge recognized the correct test for determining whether there was a psychological detention that triggered the s. 10(

b) right, the judge erred in his application of the test. Counsel for the Attorney General argued that the facts support the position that the officers had no intention of detaining Ms. Way, stating that “[h]ad she been a suspect […] she would have been placed under arrest”. In support of that contention, the Attorney General points to the testimony of Cpl. Tompkins who says that he did not, at the time he asked Ms. Way to attend for an interview, have reasonable grounds for believing she was responsible for stabbing Mr. Richard. Otherwise, he says, he would have arrested her.

According to counsel for the Attorney General, the police were merely investigating an accident. Their intent, it is alleged, was simply to obtain Ms. Way’s statement “with respect to the accident”. Counsel also points to testimony from Cst. Carrière asserting an intention to release Ms. Way “as soon as we were done taking the first statement”. It is also argued that the following facts are all indications that “the police did not intend nor consider [Ms. Way] detained”: 1. The officer left the room on several occasions; 2. At one point the officer called a social worker to assist Ms.

Way in informing her children of the death of their father; and, 3. Ms. Way was allowed to use the washroom in the presence of her mother. [ 20 ] To these arguments, Ms. Way’s counsel replies that the Attorney General’s position “places too much emphasis upon the subjective views of the [police] investigators, and not on the views of the reasonable person in [Ms. Way’s] position”. [ 21 ] The Attorney General also contends there should have been evidence Ms. Way subjectively believed she could not leave the police station during the interview. To this, Ms.

Way argues that her subjective belief should have little or no bearing on the objective test of whether a reasonable person in her position would have felt obliged to follow the police’s directive and adds that, in any event, she deposed in her affidavit she was medicated and has very little recollection of what occurred in the interview room. [ 22 ] Recall that the judge alternatively held that even if the s. 10(

b) right was only triggered when the police learned of the confidential informant’s report, Ms. Way’s right was nevertheless violated because she did not understand the choices given to her. On this point, counsel for the Attorney General argues the judge erred because there were non-verbal indications, in the

form of nods, seen on the videotape, which indicated Ms. Way understood. Counsel argues there was an obligation on Ms. Way to asserther right to instruct counsel and that she did not exercise due diligence in verbalizing her wish to exercise the right. On this point, Ms.Way answers that the judge made a finding of fact she did not understand the rights read to her and that absent a palpable and overridingerror this finding is entitled to deference. Ms.

Way adds that the Supreme Court has held that she could not be expected to assert a rightshe did not understand and that the police cannot “rely on their mechanical recitation of the right” without taking steps to facilitate theunderstanding. B. The s. 24(2) analysis [23] With one exception, the Attorney General does not argue the trial judge applied the wrong test in determiningthe evidence should be excluded on application of s. 24(2). What the Attorney General submits is that a weighing of the factors set outin Grant should have led to a different conclusion.

The one exception relates to a comment the trial judge made to the effect thatstatements are generally excluded when they are obtained in violation of the rights guaranteed in the Charter. Counsel for the AttorneyGeneral argues this statement demonstrates an application of the pre-Grant test, which constitutes an error of law. [24] With respect to this ground, Ms. Way’s counsel points to the deferential standard of review applicable in thesecases. He notes the judge correctly identified and applied the approach elaborated in Grant and weighed all the applicable factors.

Withregard to the Attorney General’s allegation of an error of law, Ms. Way’s counsel acknowledges there is no blanket rule for the exclusionof statements and that all three lines of inquiry set out in Grant must be examined. However, he does not accept the trial judgecommitted an error of law. According to Ms. Way’s counsel, in making the impugned statement, the trial judge was simply alluding tothe reality the Supreme Court recognized in Grant that the admission of statements obtained in violation of the Charter generally “tends”to bring the administration of justice into disrepute. V. Analysis A. The s. 10(

b) violation [25] It is common ground that both statements Ms. Way gave on April 5, 2009, are linked. The Attorney Generalhas not argued that the effect of informing Ms. Way of her right to counsel part-way through the interview had the effect of curing anyearlier Charter violation. [26] The main argument in support of this ground of appeal focuses on the question of whether or not Ms. Way wasdetained before the officers received information from a confidential source that caused them to then inform her of her right to counsel. If so, she should have been advised of her s. 10(

b) right without delay upon detention. If she was not detained prior to that point, then thejudge’s alternative determination of a s. 10(

b) violation has to be examined. [27] The jurisprudential importance of Grant and its companion cases is not limited to the elaboration of a newframework for the s. 24(2) analysis. Grant also provides a modern starting point for determination of what constitutes detention so as totrigger the s. 10(

b) Charter rights. The majority in Grant rejected both narrow and expansive

interpretations of the term “detention” asused in s. 9 and 10 of the Charter. Harking back to R. v. Therens, (SCC), [1985] 1 S.C.R. 613, [1985] S.C.J. No. 30(QL), the majority in Grant explains that “a person is detained where he or she ‘submits or acquiesces in the deprivation of liberty andreasonably believes that the choice to do otherwise does not exist’” (para. 28).

One of the hallmarks of “detention” is “when thedeprivation of liberty may have legal consequences” (para. 29). [28] For the majority, McLachlin C.J. and Charron J. explain that “detention” under ss. 9 and 10 of the Charterrefers to “a suspension of the individual’s liberty interest by a significant physical or psychological restraint” (para. 44). Psychologicalrestraint can arise when there is a legal requirement for the subject to comply with a direction or demand, for example in the case of ademand to provide a breath sample in a roadside screening device.

However, it can also occur, in the absence of a legal requirement tocomply, in situations where a reasonable person in the subject’s position would feel obligated to comply with a police officer’s directionor demand.

The rationale for including this type of restraint as part of the definition of “detention” in ss. 9 and 10 of the Charter is that“[m]ost citizens are not aware of the precise legal limits of police authority” and “[r]ather than risk the application of physical force orprosecution for willful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with

the demand” (para. 30 in Grant , quoting Le Dain J. in Therens at p. 644). [ 29 ] The inquiry to determine whether there has been psychological restraint without a legal requirement to comply is an objective one. “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” (para. 31 in Grant ). Thus, in the present case, the relevant question is whether a reasonable person in Ms. Way’s situation would have felt she had an obligation to comply with the officers’ demand for a statement.

The inquiry “involves a realistic appraisal of the entire interaction as it developed, not a minute parsing of words and movements”, the majority explains in Grant , adding that “[i]n those situations where the police may be uncertain whether their conduct is having a coercive effect on the individual, it is open to them to inform the subject in unambiguous terms that he or she is under no obligation to answer questions and is free to go” (para. 32). [ 30 ] The majority in Grant points out that there are many instances when police demands or directives will not be seen as a psychological restraint of the type to attract Charter scrutiny.

The police acting in a non-adversarial role while assisting members of the public is one example. Approaching bystanders in the wake of an accident or crime is another.

However, as McLachlin C.J. and Charron J. point out, even though the police should be able to act in a manner that fosters the cooperation of members of the public and not discourage such cooperation, “police investigative powers are not without limits” and the notion of psychological detention seeks to avoid “the risk that the person may reasonably feel compelled to incriminate himself or herself” (para. 39). [ 31 ] In undertaking the objective inquiry to determine whether a reasonable person in Ms.

Way’s circumstances would have concluded she had been deprived of the liberty of choice, the trial judge was required to consider all the circumstances. The test for determining whether there was such psychological restraint is summarized in Grant as follows: 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 the police conduct, including the language used; 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. [para. 44] [ 32 ] This is exactly the test the trial judge applied in the present case and those are exactly the factors he considered in concluding that a reasonable person in Ms. Way’s situation would have felt she had no choice. [ 33 ] The trial judge says that “[t]he finding of psychological detention is a finding of fact” (para. 43). If that were so, it would preclude appellate intervention in this case because an appeal against an acquittal is limited to a question of law alone: see 676(1)(

a) of the Criminal Code . With respect, the judge’s statement is incorrect. What McLachlin C.J. and Charron J. stated in their majority reasons in Grant is that “[d]eference is owed to the trial judge’s findings of fact, although application of the law to the facts is a question of law” (para. 43). The inquiry being objective in nature certainly lends itself well to appellate review.

Thus, a decision that there has been psychological detention in particular circumstances is open to appellate scrutiny but, in reviewing the decision, the Court of Appeal must defer to the trial judge’s factual findings, unless of course these are the product of a palpable and overriding error. No such error is alleged in the present case. [ 34 ] The Attorney General’s appeal focuses exclusively on the question of psychological detention. No one asks whether, in the circumstances of this case, there had also been actual physical detention.

In this sense, no one seems to have interpreted the trial judge’s statement (at para. 48) that “[c]oupled with the physical aspects of the detention, I believe the evidence clearly established that Katie Way was psychologically detained” as meaning he was finding the restraint of Ms. Way’s liberty to have been both physical and psychological. Since I conclude the circumstances of this case lead to the conclusion that a reasonable person in Ms. Way’s situation would have felt she had no choice but to comply, it follows there was psychological restraint sufficient to trigger the s. 10(

b) rights. It is therefore not necessary for me to determine whether there was also physical restraint that would have, of itself, requiredcompliance with s. 10(b). Since the issue was not argued, I will pursue it no further. [35] Similarly, my conclusion that the trial judge did not err in finding that Ms.

Way should have been advised ofher right to counsel at the outset of the interview makes it unnecessary for me to address the trial judge’s alternative finding that Ms.Way was not properly advised of her Charter rights before the second statement was taken. [36] Looking at this case through the prism of the facts as found by the trial judge, I am of the view that areasonable person in Ms. Way’s situation would have felt she had no choice but to comply with the investigator’s directives. The trialjudge found that while Ms.

Way was an adult, “she was young”, was “not assertive or confident” and he doubted “her sophistication”(para. 49). These findings of fact are all supported by the evidence and have not been challenged as being the result of any palpable andoverriding error. Thus, the question is whether a reasonable young, non-assertive, not confident and unsophisticated person would havefelt obliged to cooperate with the investigation in the circumstances. [37] The accident reported to the 911 service involved a stabbing that eventually led to the death of a man.

Anyreasonable person would expect that, in those circumstances, the police would want to investigate the “accident”. This is not a casewhere the police are providing general assistance, maintaining general order or making general inquiries regarding a particularoccurrence. It is a case where the investigators considered Mr. Richard’s death to be “suspicious”. Any other characterization wouldhave been absurd. One does not generally expect an individual to fall on a knife, stabbing himself through the heart. The police wereaware only two adults had been in the home when Mr.

Richard was stabbed and they necessarily had to single out Ms. Way for focusedinvestigation. While it may be that initial inquiries made at the scene or even at the hospital might be characterized differently, the factis that what occurred at the police station was a focused investigation involving Ms. Way. If she had simply been asked to provide astatement as to what happened and no more, the situation might then also be characterized differently.

However, she was repeatedlyquestioned for two hours; evidence that, in the circumstances, she was the subject of a focused investigation. [38] I agree with the trial judge that a reasonable person in Ms. Way’s situation would not have felt detained whenthe officers attended at her mother’s home and asked her to attend at the police station.

However, the outlook of the reasonable personwould take a dramatic change when, having arrived at the police station, the person is taken to a controlled part of the police station to aclosed-door interview room and told that if anything was needed or wanted to knock on the door. At that point, a reasonable person’sperception of any freedom to leave would be significantly diminished.

When one adds to that being an unsophisticated young personwho was advised her mother can’t attend for the interview and was effectively told she cannot leave until the interview is over, thereasonable person would obviously perceive the enjoyment of his or her liberty as drastically curtailed. [39] In Grant, the Court recognizes that “[e]ffective law enforcement is highly dependent on the cooperation ofmembers of the public” (para. 39). The police are expected to investigate accidents and suspicious deaths, and “must be able to act in amanner that fosters [public] cooperation, not discourage it” (para. 39).

In some instances, there will be little doubt that a reasonableperson would expect to be questioned and would know he or she is not being detained so as to trigger s. 10(

b) of the Charter. However,in other circumstances the line may be difficult to discern between situations where a reasonable person would feel free to walk awayand those where an individual would reasonably feel compelled to incriminate himself or herself. In those instances, the majority of theSupreme Court has given police investigators a tool to ensure the line remains clear. Where there is uncertainty, the police may chooseto “inform the person that he or she is under no obligation to answer questions and is free to go” or otherwise they risk the possibility that“a detention may well crystallize” requiring the need to advise the person of his or her s. 10(

b) rights (para. 39). [40] I pause to add that there may be situations where the police advise a person that he or she is under no obligationto answer questions and is free to go, which would still result in a finding of psychological restraint. However, detention will certainlybe much more difficult to establish when such information has been genuinely provided. [41] In the present case, Ms. Way was not advised she was under no obligation to answer questions and that she wasfree to go. In fact, the situation suggested she was not free to go.

She was taken without her mother to a secured area of the policestation to a closed-door interview room, told to knock on the door if she needed or wanted anything, repeatedly questioned for two hoursand told she would be allowed to leave when the interview was over. [42] As explained in R. v. Hebert, (SCC), [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64 (QL), theCharter confers upon people “the right to choose whether to speak to the authorities or to remain silent” (para. 51). Related to this rightis the one guaranteed by s. 10(

b) pursuant to which, if one is detained in a situation which could attract legal consequences, that personmust be informed of the right to retain and instruct counsel without delay so that the person can be made aware of their available choicesand the possible ramifications of those choices. In the present case, there is no doubt the situation was one that could attract legalconsequences for Ms. Way. Surely the investigating officers knew this and, in the circumstances, they ought to have made it clear to her

that she had no obligation to answer their questions and was free to go if she wished. Their failure to do this resulted in Ms. Way’s detention crystallizing before she was interviewed. When this occurred, the officers had an obligation to inform Ms. Way of her right to counsel. I agree with the trial judge that their failure to do so constitutes a violation of the s. 10(

b) right. B. The s. 24(2) analysis [ 43 ] Just as Grant was pivotal for the determination of the Attorney General’s first ground of appeal, it is also of critical importance in resolving the second ground. As stated earlier, in Grant the Supreme Court abandoned the Collins/ Stillman approach to the application of s. 24(2) and so began a new era in the determination of whether evidence obtained in a manner that infringed or denied any right or freedom guaranteed by the Charter should be excluded.

The revised framework for the s. 24(2) analysis requires a court to “assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct); (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little) and; (3) society's interest in the adjudication of the case on its merits” (para 71). [ 44 ] In the present case, the trial judge followed this exact framework to conclude that on balance Ms.

Way’s statements should be excluded. The trial judge’s statement to the effect that statements obtained in violation of a Charter right are generally excluded cannot be taken in isolation. When the reasons are read as a whole, there is no doubt the judge recognized he had to consider all three lines of inquiry in determining whether the statements should be excluded. In fact, he addressed all relevant factors and balanced his findings in making the ultimate determination. [ 45 ] This ground of appeal cannot be resolved without regard to the applicable standard of review. Again, Grant provides the answer.

The majority states that in undertaking a s. 24(2) analysis, “it is the task of the trial judge to weigh the various indications” and “[n]o overarching rule governs how the balance is to be struck”, adding that “[w]here the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination” (para. 86). [ 46 ] This is not a case as in R. v. Martin , 2010 NBCA 41 , 361 N.B.R. (2d) 251 , leave to appeal ref'd [2010] S.C.C.A.

No. 302, where the trial judge’s s. 24(2) determination was not owed any deference because his conclusions were informed by inferences that were drawn from speculation or conjecture. In the present case, the trial judge’s factual findings are supported by the evidence and are not alleged to be the result of any palpable and overriding error.

Thus, they must be respected. [ 47 ] The s. 24(2) framework emanating from Grant is described in Martin and I can do no better than repeat the relevant portions of that decision: In Grant , before formulating the new framework, the majority of the Supreme Court examined the broad principles that should inform the s. 24(2) approach. Chief Justice McLachlin and Charron J. explained that the term "administration of justice" is one that "embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole" (para. 67).

Thus, "[t]he phrase 'bring the administration of justice into disrepute' must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system" (para. 68). One must look to "whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence" (para. 68).

It is an objective inquiry: "whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute" (para. 68). It is also an inquiry that is both long-term and prospective, starting from the proposition that there has already been damage to the administration of justice by the fact of the Charter breach, and which seeks to ensure "that evidence obtained through that breach does not do further damage to the repute of the justice system" (para. 69).

The focus of the s. 24(2) analysis is societal. It is not designed to punish the police or to provide compensation to an accused, but rather the "focus is on the broad impact of admission of the evidence on the long-term repute of the justice system" (para. 70).

With these broad principles in mind, the majority explained the new framework in the following words: [...] whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2) , viewed in a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter - protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins , capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence. [para. 71]

It is with these broad principles in mind that the Grant tri-partite inquiry must be undertaken.

(1) Seriousness of the Charter-Infringing State Conduct Under this heading, the Court in Grant tells us that "[t]he more severe or deliberate the state conduct that led to the Charter violation, thegreater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order topreserve public confidence in and ensure state adherence to the rule of law" (para. 72). Thus, it is necessary to evaluate the seriousness ofthe state conduct to determine the level of seriousness of the violation. […]

(2) Impact on the Charter-Protected Interests of the Accused The Supreme Court in Grant instructs judges to evaluate under this heading "the extent to which the breach actually undermined theinterests protected by the right infringed" (para. 76). The impact of the Charter breach "may range from fleeting and technical toprofoundly intrusive" (para. 76). We determine this by looking "to the interests engaged by the infringed right and [examining] thedegree to which the violation [impacts] on those interests" (para. 77). […]

(3) Society's Interest in an Adjudication on the Merits "[T]he third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would bebetter served by admission of the evidence, or by its exclusion" (Grant, at para. 79). In this line of inquiry, "[t]he reliability of theevidence is an important factor" (para. 81).

The Supreme Court says that "exclusion of relevant and reliable evidence may undermine thetruth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration ofjustice into disrepute" (para. 81). One must "balance the interests of truth with the integrity of the justice system" (Grant, at para. 82,quoting Iacobucci J. in R. v. Mann, [2004] 3 S.C.R. 59, [2004] S.C.J.

No. 49 (QL), 2004 SCC 52, at para. 57) by asking "whether thevindication of the specific Charter violation through the exclusion of evidence extracts too great a toll on the truth-seeking goal of thecriminal trial" (Grant, at para. 82, quoting Doherty J.A. in R. v. Kitaitchik (A.) (2002), (ON CA), 161 O.A.C. 169,[2002] O.J. No. 2476 (QL), at para. 47). One of the factors to be considered under this head is the importance of the evidence to the prosecution's case.

As the Court says, "theexclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedyeffectively guts the prosecution" (para. 83). [paras. 79-93] [48] In Grant, McLachlin C.J. and Charron J. recognize there is “no absolute rule of exclusion of Charter-infringingstatements under s. 24(2)” (para. 91), but add that the three lines of inquiry that form the framework for the s. 24(2) analysis “support thepresumptive general, although not automatic, exclusion of statements obtained in breach of the Charter” (para. 92). [49] In the present case, the trial judge undertook the three lines of inquiry mandated by Grant.

With respect to theseriousness of the violation, although the judge did not characterize the police conduct as “going to the level of willful or flagrant” henevertheless stated “it was very close to this type of conduct” (para. 57) and observed “it was not an inadvertent or minor violation”(para. 56). On the spectrum of s. 10(

b) violations, I consider this one to be on the serious side. The officers knew or ought to have knownthey were focusing their investigation of Mr. Richard’s suspicious death on Ms. Way. They knew or ought to have known she was ayoung, non-assertive and unsophisticated individual. Yet, knowing the possible legal consequences for Ms. Way, the officers refused toallow her mother to be present with her, twice asserted she did not need a lawyer, questioned her for two hours under the guise they

simply wished to determine how the accident occurred and told her she could only leave once the interview was finished. Note that I am not saying the officers had any obligation to allow Ms. Way’s mother to be present for the interview, just that they did not do so. [ 50 ] As stated earlier, a reasonable person in Ms. Way’s situation would have felt detained and would certainly not have believed having the freedom to refuse to answer and leave.

If a reasonable person would have perceived the situation like this, it seems inconceivable that two experienced police officers would not have come to the same conclusion. However, since the trial judge stopped short of finding a flagrant violation, I will do the same and, as he did, place this violation on the serious side of the spectrum without going to the extreme end. [ 51 ] The more serious the breach, the more the admission of the evidence would harm the repute of justice.

As stated in Grant , “[t]he preservation of public confidence in the justice system requires that the police adhere to the Charter in obtaining statements from a detained accused” (para. 93). As the violation in the present case was not a minor or inadvertent slip, there is a need for the Court not to be seen as condoning this type of police misconduct. [ 52 ] As for the impact on the Charter -protected interests of the accused, s. 10(

b) is meant to protect a person detained in a situation which could attract legal consequences because that person could otherwise be disadvantaged “in relation to the informed and sophisticated powers at the disposal of the state” ( Hebert , at para. 52 ). Individuals have the right to silence and need not incriminate themselves in a criminal investigation. Of course, the police must investigate suspicious activity and, as in this case, suspicious death. They are allowed to ask and even legitimately try to persuade people, even suspects, to cooperate.

What the Charter guarantees is that when people are arrested or detained in a situation where their cooperation could attract legal consequences, those people will be advised of their right to retain and instruct counsel so that they can be informed of the various choices open to them. This was exactly the case for Ms. Way. What she said in that interview room certainly had the potential to attract legal consequences, as it eventually did. This was not a fleeting or technical violation of the s. 10(

b) right. Ms. Way was deprived of the advice she clearly needed in a situation where it must have been most apparent she desperately needed it. [ 53 ] Thus, the Charter -protected interests in the present case involved not only the right to counsel, but also the right to silence. In addition, as pointed out in Grant , “[s]tatements by the accused engage the principle against self-incrimination, ‘one of the cornerstones of our criminal law’” (para. 89).

As pointed out in Grant , “[t]hese rights protect the individual’s interest in liberty and autonomy” and a “[v]iolation of these fundamental rights tends to militate in favour of excluding the statement” (para. 95). [ 54 ] In the present case, there were no circumstances that might have attenuated the impact of the s. 10(

b) violation. This was not a case of a spontaneous utterance or a situation where the individual was specifically informed it was his or her choice to speak to the police. [ 55 ] When the Supreme Court in Grant recognized society’s interest in adjudication on the merits as the third line of inquiry, it explained that “[t]he reliability of the evidence is an important factor” (para. 81). This is so because the exclusion of highly reliable evidence may impact very negatively on the repute of the administration of justice, especially in a case where the evidence is extremely important to the prosecution’s case.

However, as the majority points out, “[t]he admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused” (para. 83). With regard to statements, the authors of the majority reasons in Grant recognize that there may, in some instances, be reason to doubt the reliability of statements taken in contravention of the Charter .

As noted, “[d]etained by the police and without a lawyer, a suspect may make statements that are based more on a misconceived idea of how to get out of his or her predicament than on the truth” (para. 97). McLachlin C.J. and Charron J. add that, in these instances, such a danger “undercuts the argument that the illegally obtained statement is necessary for a trial [on] the merits” (para. 97). [ 56 ] It is abundantly apparent that, in the present case, the prosecution did not tender Ms. Way’s statements as evidence of the truth. In the first statement, she maintained Mr. Richard was the victim of an accident.

In the second, she asserts self- defence. While there may have been some legitimate purpose behind the prosecution’s decision to tender the statements, the fact Ms. Way was charged with second degree murder despite the contents of those statements certainly indicates even the prosecution did not consider these as a reliable source of truth.

There is a considerable danger that this is exactly the type of case the majority in Grant had in mind when stating that reliability may be in question where there is reason to think the suspect might have made statements “based more on a misconceived idea of how to get out of his or her predicament than on the truth” (para. 97). [ 57 ] Balancing the results of the three lines of inquiry in this case, all factors favour exclusion.

To paraphrase Grant , the heightened concern with proper police conduct in obtaining statements from suspects and the centrality of the protected interests affected in this case favour exclusion of statements taken in breach of the Charter , while the third factor, obtaining a decision on the merits, is attenuated by lack of reliability. In these circumstances, the overall repute of the justice system, viewed in the long term, would be adversely affected by the admission of the evidence. It follows that Ms.

Way has therefore established that exclusion of the evidence is necessary so as not to bring the administration of justice into disrepute.

[ 58 ] In sum, I find no reversible error in the trial judge’s s. 24(2) analysis and, according him the measure of deference required in the circumstances, I would dismiss this ground of appeal. VI. Disposition [ 59 ] It is for these reasons that following the hearing I was of the view to dismiss the appeal. ______________________________ J. C. MARC RICHARD, J.A. WE CONCUR: _______________________________ M.E.L. LARLEE, J.A. _______________________________ B. RICHARD BELL, J.A.