R. v. Soriano, 2021 MBPC 6

CITATION: R. v. Soriano , 2021 MBPC 6 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Shannon Benevides ) for the Crown ) ) ) and ) ) ) ) ) Jeremiah Mendoza Soriano ) Saul B. Simmonds, Q.C. & ) Jessie Brar ) for the Accused ) ) ) ) ) ) Reasons for Decision delivered: ) February 17, 2021

TABLE OF CONTENTS Paragraph Introduction..................................................................................................... 1 1) Did Detective McKinnon breach Mr. Soriano’s

section 10(

b) Charter rights by denigrating and belittling the advice of his counsel?....................................... 5 A. The Facts................................................................................................ 5 B. Position of the Crown............................................................................ 15 C. Position of the Defence......................................................................... 21 D. Analysis............................................................................................... 27 E. Was Mr. Soriano’s

section 10(

b) Charter right to counsel breached?....... 53 F. Should the statement be excluded pursuant to section 24(2) of the Charter ?.......................................................................................... 61 i. The seriousness of the Charter infringing state conduct....................... 62 ii. Impact of the breach on the Charter protected rights of the accused.... 63 iii. Society’s interest in the adjudication of the case on its merits............ 67 2) Has the Crown proved the statement voluntary beyond a reasonable doubt?.................................................................................................. 69

PULLAN P.J. Introduction [ 1 ] On August 15, 2019, Jeremiah Soriano unexpectedly appeared at Winnipeg Police Service headquarters. Det. Sarah McKinnon and her partner Det. Sgt. Matt Barkley retrieved Mr. Soriano from the station duty area and introduced themselves. He was provided his notice of arrest for sexual assault and advised of his s. 10(

b) Charter right to counsel. Mr. Soriano was handcuffed, searched, and escorted to a private room for interview. [ 2 ] In the interview room, on video, his notice of arrest and s. 10(

b) Charter right to counsel advice were repeated. Det. McKinnon described Mr. Soriano’s demeanor as calm and easy to speak with. His level of cooperation was high. He said he wished to speak to counsel and spoke to Legal Aid Duty Counsel. [ 3 ] The Crown seeks admission of the statement given by Mr. Soriano to Det. McKinnon not as a component of the Crown’s case, but for use in cross-examination should Mr. Soriano testify. Defence seeks exclusion of that statement pursuant to section 24(2) of the Charter of Rights , alleging Mr. Soriano’s s. 10(

b) Charter right to counsel infringement when the officer belittled and denigrated his counsel with the express goal of undermining his confidence in his relationship with counsel. Additionally, Defence argues the Crown has not proven beyond a reasonable doubt the statement was given voluntarily. [ 4 ] The only witness called on the voir dire was Det. McKinnon. The allegation of sexual assault arose in the context of Mr. Soriano’s work as a personal trainer, and interaction with one of his clients. Mr. Soriano went to the police station to straighten the problem out as advised by his employer. Mr.

Soriano is a well-experienced personal trainer, holding degrees and certificates in that field. He had no experience with the criminal justice system and was never previously interviewed by a police officer. Det. McKinnon is a detective in the Sex Crimes Unit with 12 years experience. The video referred to below is the video of the August 15, 2019 interview of Mr. Soriano by Det. McKinnon. 1) Did Detective McKinnon breach Mr. Soriano’s

section 10(

b) Charter rights by denigrating and belittling the advice of his counsel? A. The Facts [ 5 ] When Det. McKinnon read Mr. Soriano his right to counsel in the interview room she told him he could call Duty Counsel or any other lawyer. He responded he had no lawyer in mind and asked if Duty Counsel were a lawyer. Det. McKinnon, not directly answering the question, told Mr. Soriano he could call someone he had in mind. If he did not have a lawyer to call, she would offer a telephone book. She repeated if he had no one in mind Mr. Soriano could call Legal Aid for free advice. [ 6 ] Mr.

Soriano said he would like to call his father to ask the name of his father’s lawyer or if his father knows a criminal lawyer. Mr. Soriano asked the officer whether the lawyer consulted had to be a criminal lawyer. Det. McKinnon responded that was the appropriate specialty. [ 7 ] As to whether Mr. Soriano could call his father to obtain the father’s lawyer’s name, Det.

McKinnon’s answer was as follows: “However, when an adult is in custody here, we would only afford you the right to speak with a lawyer, we wouldn’t be calling family members or anything like that.” (Transcript of video page 3 lines 19-22) [ 8 ] After telling Mr. Soriano he could not call his father, Det. McKinnon offered the yellow pages, adding that if he were unable to make a selection from the phone book he could still call Legal Aid. [ 9 ] Mr.

Soriano, still apparently confused, said “So if I use Legal Aid like I will be given one, like I don’t get to choose?” (Transcript of video page 4 lines 8-9) [ 10 ] Mr. Soriano said that even if given the phone book he would not know who the people in the phone book were. After assurances from Det. McKinnon Legal Aid would provide a criminal lawyer, Mr. Soriano said he would speak to Legal Aid. Having spoken with Duty Counsel for about 16 minutes including a second call because the first disconnected after two minutes, Mr. Soriano said he was satisfied with his legal advice. [ 11 ] Before leaving Mr.

Soriano in the interview room Det. McKinnon asked him if he had any questions for her. Mr. Soriano said he had been advised not to talk. Det. McKinnon told Mr. Soriano that she could “appreciate that advice” (transcript of video page 7 line 13) but there were some things she had to ask him about unrelated to the allegation. The questions were solely for obtaining background information to brief her sergeant when Mr. Soriano was considered for release. She added that part of the interview was to give Mr. Soriano the opportunity to tell “his side of the story”.

She wanted to know if the allegations arose from a “misunderstanding or something”. She said she would return “in a bit”. [ 12 ] Det. McKinnon returned to the interview room two hours and 22 minutes later. During her absence, Mr. Soriano remained alone in the interview room perched on a chair bolted to the floor. When she returned, he expressed concern about whether his truck had been towed from the street where he left it. [ 13 ] After a discussion about parenting small children, Mr. Soriano told Det. McKinnon about his wife’s employment and his concerns about losing his job.

He spoke of his shock, when informed in a conference call with his employer of the nature of the allegation. He said he was told to go to the nearest police station to discuss the matter further. The allegation itself, he said, made him

want to throw up. [ 14 ] The topic of Mr. Soriano’s discussions with counsel, and their impact on him as it related to the interview with Det. McKinnon, are as follows: 1. Mr. Soriano said he followed his employer’s advice to go to the nearest police station. He was going to tell everything. He then consulted with counsel who told him “shut your mouth”. Det. McKinnon responded it sounded like Mr. Soriano was confused and conflicted about whether he should tell Det. McKinnon what occurred. 2. Mr. Soriano said the lawyer clearly knows what she is doing so he had to listen to someone “smarter than me”. Det.

McKinnon responded sometimes people are arrested for things and do not get an opportunity to speak to a police officer and tell their side of the story. At the Sex Crimes Unit they like to speak with people because the charge of sexual assault “can be more of a grey area”. 3. Det. McKinnon asked Mr. Soriano to explain what the body fat test is. In the context of the facts here, the body fat test appears related to the allegation of sexual assault. Mr. Soriano said he thought that was what the lawyer was talking about, and he should keep his mouth shut but could explain caliper testing. 4. Mr.

Soriano described himself as lost trying to defend himself but struggling because someone “smarter than me” is telling him not to talk. He concluded that discussing fat caliper testing would be all right. 5. Det. McKinnon asked Mr. Soriano how a fat caliper testing procedure would go. He responded he honestly wanted to answer, and asked if he could opt not to answer. Det. McKinnon told him whether he responded was totally his choice but she was just asking for general knowledge and emphasized she was not asking what Mr. Soriano did to the complainant. 6. Det. McKinnon asked Mr.

Soriano what he did to the complainant. He asked again if he could still “opt not to” answer because he really did not know what he was getting himself into. Mr. Soriano said: “But the lawyer said if I need to talk, I need a lawyer in front of me” (Transcript of video page 38 lines 11-12) 7. Mr. Soriano provided detailed explanation of his relationships with his personal training clients. He described the specific physical structural problems the complainant suffered that he was trying to correct and his pride in his work. Mr.

Soriano said: “I’m not telling everything right now, like the amount of – the lengths I go through to just help, because like in the back of my head, that lawyer is still telling me, “shut up”.” (Transcript of video page 59 lines 9-12) 8. Mr. Soriano and Det. McKinnon discussed his financial arrangements for personal training with various clients. Det. McKinnon commented the prices were expensive and asked Mr. Soriano whether he and the complainant came up with a plan for payment when she could not afford anything beyond the original eight sessions. Mr.

Soriano said he wanted to come up with a plan, and “maybe I should talk about that when the lawyer is here”. (Transcript of video page 67 lines 1-2) 9. Det. McKinnon asked Mr. Soriano for specifics about the issues with the complainant’s body. The interaction between them was as follows: “Jeremiah Soriano: I’m not – like I’d like to talk about it right now, like I could, like it’s – Det. McKinnon: Here is the thing. I understand that you feel torn because your lawyer has said for you not to talk. And I don’t want you to feel like I am forcing you to talk here.

Genuinely,, I’m just trying to find out the truth here. Because here’s the thing. Like I don’t know – and don’t tell me – I don’t know though if your lawyer knows the whole totality of the circumstances, okay. Like I don’t know if your lawyer knows that you’ve never been alleged to have done anything in nine years… Jeremiah Soriano: I want to tell you. Like I honestly want to tell you, but like – but I do – I will. I will, but I was told that I should be telling you like when there’s a lawyer beside me” (Transcript of video page 70 lines 16-page 71 line 12) 10. Det. McKinnon told Mr.

Soriano the interview was his one time opportunity to answer the allegation and his explanations were helping her understand why he wanted to help the complainant. She said: “So if you don’t want to talk, I understand but if you don’t talk, I won’t get the whole side of the story or the truth, if that makes sense.” (Transcript of video page 72 line 24 - page 73 line 1) 11. Det. McKinnon told Mr. Soriano the complainant told her she was asked to remove parts of her clothing and she was uncomfortable with it. Mr. Soriano said he wanted to explain. Det.

McKinnon interrupted to tell him it was his right to defend himself and explain it. Mr. Soriano concluded: Jeremiah Soriano: Like that is – but maybe I should wait for a lawyer for that. (Transcript of video page 83 lines 10-11) 12. Det. McKinnon persisted asking potentially inculpatory questions despite Mr. Soriano’s repeated expressed desire to follow the

advice of his counsel: Det. McKinnon: Okay. So we’re in agreement that she was asked to take her pants off, so that you could do a professional reading of herquadriceps? Jeremiah Soriano: I should wait for a lawyer to answer that. Because even though I want to answer that right now… (Transcript of video page 85 lines 6-11) 13. Mr. Soriano’s expectation that a lawyer would be present continued throughout the interview. Jeremiah Soriano: I want to give you the truth, Det. McKinnon if you’re – Jeremiah Soriano: But can we have a lawyer here today, so I could like keep talking? Det.

McKinnon: Yeah, it’s just us talking right now. We don’t bring the lawyers in here to talk with people. I appreciate you haven’tbeen here before, so that’s just the procedure that we follow… (Transcript of video page 87 lines 13-21) 14. Mr. Soriano said he did not want to look like a guilty person and felt dumb not talking because he had nothing to hide. The followingexchange took place: Det. McKinnon: Well, and that’s what I am saying, if you have nothing to hide – Jeremiah Soriano: if the lawyer is saying… Det.

McKinnon: If you have nothing to hide then you shouldn’t feel – you shouldn’t feel scared to talk if you have nothing to hide. Aperson who has done nothing wrong does not have a problem talking about exactly what they’ve done. … And that’s why I understand a lawyer is going to tell you not to talk, but they are looking out for people that are guilty of doing crimes. So if someone is guilty of doing crimes, they shouldn’t talk. But if you are innocent of this allegation then it’s in your best interest totalk, in my opinion. (Transcript of video page 92 line 13 - page 93 line 6) 15. Det.

McKinnon explained aspects of the allegations, and that she thought the complainant to be a truthful person. She said she wasoffering Mr. Soriano an opportunity to do the right thing for the complainant by speaking. She suggested this was an opportunity forhim to show his three children he could face this head on. Mr. Soriano responded: Jeremiah Soriano: But I want to listen to someone who knows better than me. And I apologize, I really do. Like I want to talk. Like if Icould talk with you or anyone else like with a lawyer right now then I would.

I would – definitely would. (Transcript of video page 100 lines 17-21) 16. Det. McKinnon said the complainant lived in Winnipeg on her own and her parents must feel sick about this and Mr. Soriano’srefusal to describe details of what occurred was unfair to the complainant. Mr. Soriano said: Jeremiah Soriano: I don’t know what I’m doing, so… Det. McKinnon: But you knew what was going on in that room. Jeremiah Soriano: No, I mean, like here. So I need – I think I have to listen to like that lawyer. (Transcript of video page 101 line 24 - page 102 line 4) B. Position of the Crown [15] The Crown suggests Mr.

Soriano failed to identify any comments made by the police that belittled or denigrated his legalcounsel. Mr. Soriano exercised free will throughout his statement, rendering the statement voluntary. He was twice advised of his rightto counsel, exercised the right, and said he was satisfied with the advice. [16] The Crown highlights two occasions in which Mr. Soriano’s counsel is referred to by Det. McKinnon, and says the twoincidents do not demonstrate denigration. She also submits the instances in the statement in which Mr. Soriano declined to answer Det.McKinnon’s questions as clear choice.

As to the final comment made by Det. McKinnon relating to a lawyer’s advice not to speak to thepolice as being for guilty people, the Crown says this does not denigrate or belittle counsel, but rather was the officer simply providingher opinion on what she thought an accused should do if innocent. The police here acted properly in obtaining the statement, and theCourt ought to have no reasonable doubt that the will of the accused was not overborne. [17] The Crown argues Det. McKinnon did not say anything to Mr. Soriano that denigrated and belittled his legal counsel.

In R. v.Burlingham, (SCC), [1995] 2 S.C.R. 206, the Court held comments made by police must be for the express goal oreffect of undermining the accused’s confidence in a relationship with defence counsel. In R. v. Edmondson 2005 SKCA 51, the Courtemphasized the police remarks must be viewed in the context of the whole interview. The interference with confidence in counsel must

be so significant that it undermines the accused’s right to counsel and vitiated his choice to remain silent. [18] In Regina v. Robles, 2008 BCSC 133 the Court concluded there was no evidence of oppression or inducement and no Charterbreach in a voir dire related to a statement. The officer gave Mr. Robles an opportunity to “tell your side of the story” in circumstanceswhere the officer added that the lawyer’s advice may not be bad advice but the lawyer was not sitting in Mr. Robles’ chair. [19] Similarly in Regina v.

J., (C.J.), 2015 ABQB 291 the officer also offered the accused the observation that the lawyer was notsitting in the chair with him, and further that it would be unfortunate the accused would have to spend that kind of money to get the truthout. The Court found no Charter breach, and no oppression relating to the voluntariness of the statement. [20] In Regina v. Mujku, 2011 ONCA 64 the officer told the accused all lawyers tell everyone not to say anything but the lawyerwas at home having dinner.

In concluding the trial judge did not err finding the comments made by the police officer did not undermineco-accused Mr. Chak’s confidence in his counsel, the Court said: “The police tread on dangerous ground when they comment on thelegal advice tendered to detainees” (para. 36). C. Position of the Defence [21] Defence urges that if an individual’s confidence in counsel is undermined, counsel becomes ineffective in circumstances wherecounsel is playing a critical role in providing advice. Defence submits Det. McKinnon crossed the line in her comments about defencecounsel resulting in an infringement of Mr.

Soriano’s right to counsel pursuant to

section 10(

b) of the Charter. The Charterinfringement resulted in an involuntary statement by Mr. Soriano, and, as a result, the Crown has not proven the statement voluntarybeyond a reasonable doubt. [22] In Burlingham, the Supreme Court specifically addressed conduct by the police belittling or undermining the accused’srelationship with his lawyer with the goal of undercutting his confidence in and relationship with his counsel. The Court highlighted theimportance of a broad

interpretation of

section 10(

b) of the Charter and noted it makes no sense to provide for the right to retain andinstruct counsel if law enforcement authorities are able to “undermine either an accused's confidence in his or her lawyer or the solicitor-client relationship” (at para. 14). [23] In Edmondson, the Saskatchewan Court of Appeal emphasized the importance of the role of defence counsel and the significantharm done if law enforcement persuades accused individuals they cannot trust their lawyer. In Regina v.

Thind, 2011 ONSC 2054 theofficer denigrated defence counsel in general and, in doing so, was found to have potentially rendered the entire defence bar ineffective. [24] In Regina v. McKnight, 2018 ONCJ 870 the officer told Mr. McKnight lawyers do not have his best interest in mind, andhighlighted defence counsel did not want Mr. McKnight to say anything because it made his job more difficult. The officer said it waseasy to defend an innocent person because they are innocent. [25] Defence relies on Burlingham, prohibiting the officer from belittling Mr.

Soriano’s lawyer with the express goal or effect ofundermining his confidence in a relationship with his counsel. Defence says Edmondson is applicable here, considering the test “whetherthe remarks in issue, viewed in the context of the interview as a whole, served to so belittle counsel, with the express goal or effect ofundermining the accused's confidence in and relationship with counsel, as to have violated the accused's right to counsel and vitiated hischoice to remain silent” (at para. 38). [26] Defence highlights Thind, where Balman J., commented the officer not only maligned Mr.

Thind’s counsel but also the entiredefence bar. He noted the critical role played by defence counsel in the criminal justice system and the harm done where accusedpersons are persuaded that they cannot trust their own lawyers. D. Analysis [27] Mr. Soriano, having no previous experience with police, learned of a situation arising from his employment from his employer.He proceeded immediately to the police station to address the issue as recommended by the employer. There he met Det. McKinnon, a12 year experienced detective, currently assigned to the Sex Crimes Unit. Mr.

Soriano was placed under arrest and given his charge,caution and right to counsel, a process repeated in the interview room on video. Mr. Soriano indicated he wished to speak to counsel. [28] The duties on police when an individual wishes to consult with counsel, are articulated in R. v. Bartle, (SCC),1994 3 SCR 173 as follows: (

b) The Duties Under

Section 10(b) 18 This court has said on numerous previous occasions that s. 10(

b) of the Charter imposes the following duties on state authoritieswho arrest or detain a person: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aidand duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right(except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger). (See, for example, Manninen, at pp. 1241-42, R. v.

Evans, (SCC), [1991] 1 S.C.R. 869, at p. 890, and Brydges, at pp.203-4.) The first duty is an informational one which is directly in issue here. The second and third duties are more in the nature ofimplementation duties and are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel.

[ 29 ] Det. McKinnon had an obligation to inform Mr. Soriano of his right to retain and instruct counsel without delay and the availability of Legal Aid and Duty Counsel. That obligation was complied with. It is the implementation right that is of concern here. [ 30 ] Mr. Soriano told Det. McKinnon he had no lawyer. She told him if he had no one in mind she could provide a telephone book or he could speak with Legal Aid for free legal advice. Mr. Soriano asked to speak to his father to obtain assistance in the selection of a lawyer from whom to get advice. Det.

McKinnon’s response was “However, when an adult is in custody here, we would only afford you the right to speak with a lawyer, we wouldn’t be calling family members or anything like that.” (Transcript of video page 3 lines 19-22) [ 31 ] In evidence, Det. McKinnon confirmed what she said in Mr. Soriano’s interview. When an adult is in custody, the call offered is not to family members, but to a lawyer. She did not call his father to get the name of a lawyer. Det. McKinnon did not explain why she did not permit Mr.

Soriano to speak to his father to get the name of a lawyer, except to say “we don’t afford calls to family members”. Her failure to call Mr. Soriano’s father herself is also unexplained. [ 32 ] When Det. McKinnon said she could offer Mr. Soriano a call to Legal Aid, he asked her if consulting with Legal Aid meant he did not get to choose who he consulted with. Det. McKinnon responded there were various people who “go on call” with Legal Aid to provide legal advice for persons in custody. [ 33 ] In response to the phone book offering, Mr.

Soriano said the yellow pages would not be of assistance because he does not know those people either. In the end, Det. McKinnon told Mr. Soriano if he called Legal Aid he would get a criminal lawyer to speak with. In evidence, she said she did not know the lawyer on call for Legal Aid and knew nothing about the lawyer’s credentials. [ 34 ] Mr. Soriano explained he wanted to clear his name, and wanted people to know his side. However, when he talked to counsel, the lawyer told him to “shut your mouth”. Det. McKinnon accurately noted, in response, that Mr.

Soriano was confused and conflicted by the advice because he wanted to clear his name. Mr. Soriano articulated his desire to follow his lawyer’s advice: “And a person who – like the lawyer that I talked to, who clearly knows what she is doing, and clearly knows how it goes, and so I have to listen to someone smarter than me.” (Transcript of video page 29 lines 7-10) [ 35 ] Det. McKinnon acknowledged Mr. Soriano’s confusion and dilemma, struggling between his desire to clear his name and his understanding of the advice of his counsel. Rather than offering Mr.

Soriano another opportunity to speak to counsel to clarify the advice he received, Det. McKinnon encouraged Mr. Soriano to disregard counsel’s advice and tell his side of the story including: “In this unit, we like to speak with people to because the charge of sexual assault can be such an unknown and more of like a grey area.” (Transcript of video page 36 lines 12-14) [ 36 ] It was not clear from the evidence that Mr. Soriano knew what the offence of sexual assault entailed, or how it could be a “grey area.” In describing the offence in this fashion it is evident Det.

McKinnon recognized this particular offence would require Mr. Soriano clearly understand the nature of the charge. [ 37 ] Det. McKinnon asked Mr. Soriano to explain what the body fat test does and what the procedure is. Mr. Soriano did not know whether the answer to that question was intended by counsel to be covered by the advice to remain silent. [ 38 ] When Det. McKinnon asked Mr. Soriano what he specifically did to the complainant, he said he really did not know what he was getting himself into in the interview, but did not see anything wrong with explaining what the caliper protocol was.

However, he added: “But the lawyer said if I need to talk, I need a lawyer in front of me.” (Transcript of video page 38 lines 11-12) [ 39 ] Mr. Soriano obviously thought his counsel would attend to the police station to be with him during his interview. [ 40 ] Det. McKinnon asked Mr. Soriano why the complainant would make a report like this. She said the reason she was asking was so she could better understand the background of the circumstances. Mr. Soriano responded that in answering that question, he did not think he was incriminating himself. Mr.

Soriano answered in detail including how far he went to help his clients. He explained he was not telling everything because in the back of his head “that lawyer is still telling me, “shut up”” (Transcript of video page 59 line 12). [ 41 ] Det. McKinnon told Mr. Soriano she understood he felt “torn” because his lawyer said not to talk, and she did not wish him to feel forced but she was just trying to find out the truth. She said: “Like I don’t know – and don’t tell me – I don’t know if your lawyer knows the whole totality of the circumstances.

Like I don’t know if your lawyer knows that you’ve never been alleged to have done anything in nine years.” (Transcript of video page 70 line 22 - page 71 line 1) [ 42 ] The fact is Mr. Soriano’s counsel did not know the whole totality of the circumstances. Det. McKinnon was aware of this because she deliberately had not told counsel the entirety of the circumstances. Counsel was in a position where she had to provide advice in a factual vacuum. Mr. Soriano participated in the interview with Det. McKinnon in that same factual vacuum.

[ 43 ] Det. McKinnon asked whether the complainant gave any sign she was uncomfortable. Mr. Soriano said he had an answer to that question and asked Det. McKinnon whether he should keep his mouth shut. Mr. Soriano asked whether a lawyer could be present today so he could keep talking. Det. McKinnon’s response was “Ya, it’s just us talking right now. We don’t bring the lawyers in here to talk with people. I can appreciate you haven’t been here before, so that’s just the procedure that we follow...” (Transcript of video page 87 lines 18-21) [ 44 ] Further to Det. McKinnon’s attempts to undermine Mr.

Soriano’s advice from his counsel, she said: “And that’s why I understand a lawyer is going to tell you not to talk, but they are looking out for people that are guilty of doing crimes. So if someone is guilty of doing crimes, they shouldn’t talk. But if you are innocent of this allegation then it’s in your best interest to talk, in my opinion.” (Transcript of video page 93 lines 1-6) [ 45 ] Mr. Soriano later requested, yet again, counsel be present for the interview as follows: “But I want to listen to someone who knows better than me. And I apologize I really do. Like I want to talk.

Like if I could talk with you or anyone else like with a lawyer right now then I would. I would definitely would.” (Transcript of video page 100 lines 17-21) [ 46 ] The result of this interview is a statement the Crown seeks to admit in which Mr. Soriano was not offered a follow up call to counsel when it was clear to Det. McKinnon he was confused, conflicted and struggling to interpret what he thought was counsel’s advise in the context of the interview. [ 47 ] He was denied an opportunity to select counsel of his choice when Det.

McKinnon told him calling his father in person or through herself was not a permissible option. Although he clearly expected his counsel to be physically present, Det. McKinnon proceeded with the interview. She made no inquiries to determine if counsel were on the way. [ 48 ] In her evidence, Det. McKinnon said that had Mr. Soriano requested to speak to counsel again, he would have been permitted to. In failing to offer a follow up call to counsel, she relied on her impression of his intelligence.

She assumed he did not make a follow up request for counsel as a matter of informed choice. [ 49 ] Her assumption his expertise and education in personal training is sufficient to assist in making reasoned choices in a police interview, where he has never been before, in a legal system he has no experience with, is difficult to understand. Everyone, regardless of level of education or area of expertise is entitled to fulsome opportunity to consult counsel.

For an officer to conclude an individual should know, without being told, that they had more than one opportunity to consult with counsel when being interviewed by police and obviously confused is concerning. [ 50 ] Similarly, for Mr. Soriano to be advised he was not permitted to call his father to facilitate counsel of choice or have the officer call his father for him, and told he was not entitled to have counsel with him when his statement was taken is also troubling. [ 51 ] The officer never told Mr. Soriano what the offence of sexual assault entailed except that it is “a grey area”.

He was left to assess for himself whether or not response to the officer’s particular questions was imprudent considering his jeopardy and sort out for himself whether answering what seemed to him innocuous questions was contrary to his counsel’s advice. [ 52 ] Explaining her comment that lawyers only tell guilty people not to talk and if Mr. Soriano is innocent it would be in his best interest to talk, Det. McKinnon said her motivation was to obtain the truth in the matter. She wants to be able to give every person a chance to provide his or her side of the story. E. Was Mr. Soriano’s

section 10(

b) Charter right to counsel breached? [ 53 ] The appropriate analysis here is a contextual one. Words said by an officer to a particular accused in particular circumstances may have different impact on a different accused in similar circumstances. In this case, the evidence is clear Mr. Soriano had no previous experience with the criminal justice system [ 54 ] Det. McKinnon, an officer assigned to the Sex Crimes Unit., interviewed him. When asked whether he wished to call Duty Counsel or any other lawyer in response to his charge, caution, and right to counsel, Mr.

Soriano said he had no lawyer in mind and required an explanation of what Duty Counsel was. He asked if he could call his father to ask for the name of a lawyer. He also asked if the lawyer had to be a criminal lawyer. Det. McKinnon offered her opinion he ought to call a criminal lawyer because that is their speciality. [ 55 ] Deprived of his choice of counsel, Mr. Soriano chose to speak to Legal Aid, and after completion of the call indicated to Det. McKinnon he was satisfied with the call. [ 56 ] It is true Mr.

Soriano is a well-educated individual, at the time enrolled in a Post-Baccalaureate diploma program in education and had achieved the equivalent of a Bachelors Degree in physical education from the Philippines. Det. McKinnon relied on what she perceived to be his intelligence in not offering him a second opportunity to consult with counsel. To assume Mr. Soriano, a personal trainer, with no legal education or experience in the justice system would know he could have asked to speak to counsel again is an error. [ 57 ] Mr. Soriano told Det.

McKinnon he really did not know what he was getting himself into, and that his lawyer said that if he

needed to talk he needed a lawyer in front of him. Det. McKinnon did not tell him no lawyer was actually enroute to be with him whilehe was questioned. [58] Mr. Soriano was placed in a situation where he was left to his own resources to assess whether Det. McKinnon’s particularquestion ought to be answered or ought not to be answered. Det. McKinnon never told Mr. Soriano, or his counsel, of the details of whatwas alleged against him. As Mr. Soriano struggled to decide whether Det.

McKinnon’s question was the type his counsel referred towhen she told him not to say anything, he did not receive an explanation from the officer as to exactly what sexual assault is to assist himin determining whether or not he should answer the question. What she did tell him was that lawyers only advise guilty people not totalk, and if he is innocent he should talk. [59] In the end, it is clear from the interaction between Det. McKinnon and Mr.

Soriano, that the officer was committed to gettingaround his counsel’s advice by demeaning the advice to remain silent he received, disregarding his obvious confusion about hiscounsel’s advice and not offering an opportunity to consult counsel again. Mr. Soriano was wholly inexperienced and unsophisticated inmatters relating to the justice system and obviously torn between his lawyer’s advice and the officer’s commitment to persuading Mr.Soriano to answer her questions to give “his side of the story”.

He expected a lawyer to be present during this questioning, and theofficer did nothing to disabuse him of that notion. [60] I appreciate that “the investigation of crime and the detection of criminals is not a game to be governed by Marquess ofQueensbury rules” (Rothman v. The Queen (SCC), [1981] 1 S.C.R, 640 at p. 697), but the purpose of the rightsguaranteed by

section 10(

b) of the Charter are defeated where police, having permitted a counsel consult, dedicate the rest of theinterview to attempting to get around or undermine the advice given. I find here that defence has established on a balance ofprobabilities that Mr. Soriano’s right to counsel as guaranteed by

section 10(

b) of the Charter has been violated. F. Should the statement be excluded pursuant to section 24(2) of the Charter? [61] Applying the test in Regina v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 I conclude as follows: i. The seriousness of the Charter infringing state conduct [62] The right to counsel is what protects and supports an individual from the exercise of state power, and is critical to maintain theindividual’s right against self-incrimination. To offer the right to retain and instruct counsel only to persist in undermining it especiallywith an unsophisticated accused is particularly egregious.

The officer here was well aware of Mr. Soriano’s inexperience and naivetéand proceeded to exploit it in an interview where both he and his counsel did not know the full extent or nature of the allegations againsthim. To ultimately tell an individual in custody, especially in this factual context, that lawyers only tell guilty people not to talk,regardless of the officer’s purported motivation, is serious. ii. Impact of the breach on the Charter protected rights of the accused [63] The Charter right to counsel is fundamental.

An individual invoking the right ought not be subjected to a game of cat andmouse where the police on multiple occasions, as here, encourage an accused person to disregard the advice received. In this case, it isapparent Mr. Soriano was confused about whether or not he ought to follow counsel’s advice to remain silent. Further, he was left to hisown devices to determine whether or not the questions asked by the officer would implicate him, or be against his own interest.

He wasnever offered, despite obvious conflict and confusion on his part, another opportunity to speak to counsel to clarify. [64] That he has a degree in fitness training does not assist in determining that each question answered was a clear and unequivocalindependent decision as argued by the Crown. He was deprived of the right to consult counsel of his choice, and have counsel with himduring the interview for reasons not explained in the evidence. [65] In continually encouraging Mr.

Soriano to disregard the advice of his counsel to remain silent, the officer repeatedly denigratedthe importance and quality of the advice given including that defence counsel only look out for people who are guilty. [66] Mr. Soriano was unable to make an informed choice about whether to exercise his right to silence. The impact on his Charterprotected interests was significant. iii. Society’s interest in the adjudication of the case on its merits [67] The Crown seeks admission of the statement not as part of the Crown’s case, but for cross-examination should Mr. Sorianotestify.

It will only become part of the case should Mr. Soriano testify, and should the Crown choose to cross-examine on it. Exclusionof the statement leaves the Crown’s case unaffected. [68] Considering the circumstances overall, I find the admission of the statement would bring the administration of justice intodisrepute and exclude it pursuant to section 24(2) of the Charter. 2) Has the Crown proved the statement voluntary beyond a reasonable doubt? [69] In considering whether the Crown has proven a statement voluntary beyond a reasonable doubt, the Supreme Court of Canadain R. v.

Oickle, 2000 SCC 38 recognized that: “Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would

inevitably result in a rule that would be both over- and under- inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.” (para. 47) [ 70 ] The contextual nature of the analysis is critical. A set of circumstances may render a confession involuntary in one case, and voluntary in the next because of the differences in features relating to the accused, the police conduct, and the circumstances overall. “Again, I would also like to emphasize that the analysis under the confessions rule must be a contextual one.

In the past, courts have excluded confessions made as a result of relatively minor inducements. At the same time, the law ignored intolerable police conduct if it did not give rise to an "inducement" as it was understood by the narrow Ibrahim formulation. Both results are incorrect.

Instead, a court should 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 the aspects of the rule discussed above.” ( Oickle at para. 71 ) [ 71 ] The case specific nature of the analysis is well illustrated by some of the authorities submitted by counsel for my consideration. In Regina v. McKnight , Mr. McKnight was clear with police he wished to speak to counsel of his choice. The officer called his aunt who called his lawyer.

As here, the officer testified he never threatened or offered inducements to Mr. McKnight who was respectful, cooperative, and a mature adult. The officer made several comments about the role of defence counsel found by the Court to undermine Mr. McKnight’s confidence in his counsel’s advice. The statement was excluded as a result of a

section 10(

b) Charter violation. Additionally, the Court found the statement involuntary noting the paramount importance of confidence in counsel’s advice. [ 72 ] In Regina v. Gordon Fulton , 2016 ONSC 2510 , the officer lied to the accused about the complainant’s allegations and misled him on the law. The officer told Mr. Fulton it would be sad if the investigation went further when it could all just be cleared up with one line. When Mr. Fulton ultimately gave a statement, he did so without intending to confess to anything. The officer also attempted to undermine the advice counsel gave Mr.

Fulton. [ 73 ] Acknowledging that in some circumstances, police trickery and misinformation could be acceptable, the statement Mr. Fulton gave was ruled involuntary because Mr. Fulton was deprived of the ability to make a meaningful choice to give a statement or not. [ 74 ] In Regina v. Schreyer , 2011 MBQB 327 , McCawley J. excluded Mr. Schreyer’s statement as involuntary for reasons including deprecation of his counsel by the police in interview. [ 75 ] In Regina v.

S.E.C. , 2009 MBQB 242 , Duval J. excluded S.E.C’s statement as not proven voluntary, when considering the totality of the circumstances including S.E.C expressing his wish to follow his counsel’s advice and not make a statement on multiple occasions, and other factors. [ 76 ] In Robles , the statement was admitted. Some of the factors considered included the officer’s remark about the motivation of lawyers, but the statement overall was ruled Oickle compliant. [ 77 ] In Regina v.

J.(C.J.) , the officer made comments that defence argued unsuccessfully were denigration of counsel. [ 78 ] In the circumstances here, it is true Mr. Soriano attended to the police station voluntarily. He is a well-educated adult. Det. McKinnon did not threaten him or even raise her voice in the interview. [ 79 ] Mr. Soriano went to the police station on the advice of his employer to clear up allegations he was advised were made about him in his employment context by a personal training client.

Although he was given his right to retain and instruct counsel, he was deprived of exercising his right to choice of counsel. [ 80 ] He spoke to Legal Aid Duty Counsel but never told he could consult counsel a second time when it appeared he was expecting his counsel to appear personally. He was confused about which verbal interaction with the police was the sort of statement his counsel advised him not to make on multiple occasions. Det. McKinnon had 12 years experience. His interview was the first dealing Mr. Soriano had with the police. Mr. Soriano’s confusion about whether he should answer Det.

McKinnon’s questions or not, was obvious from both his verbal expressions and his demeanour. [ 81 ] Before Det. McKinnon left the room for two hours and 22 minutes to attend to other duties, Mr. Soriano told her he was advised not to talk. Det. McKinnon informed him there were questions she had to ask him for background information. Of interest, she told him the officer who would consider his release required the background information. [ 82 ] Discussion of his background information included his employment, a natural interview se g ue into the circumstances of the allegations.

It was unclear from the interview where the questions relating to background information required for the benefit of release stopped and the interview content moved into investigation. Mr. Soriano was not told where the line was drawn between information needed to get out of custody and information to be used against him in the investigation. [ 83 ] Det. McKinnon, in commenting on the self-evident conflict Mr. Soriano was feeling between following the advice of his counsel to remain silent, and Det. McKinnon’s assurance it would be better for him to talk, noted Mr.

Soriano’s lawyer did not know all of the circumstances when giving the advice. The reason Mr. Soriano, and his lawyer, would not have known all of the circumstances so his lawyer could advise him fully, is that Det. McKinnon chose not to tell them. [ 84 ] She told him lawyers were not brought “in here to talk with people”, a surprising and concerning response to a direct request for the presence of counsel, in circumstances where it was not clear why his counsel would not have been permitted to attend in person and he was expecting his counsel’s attendance.

[ 85 ] She told him that lawyers are “looking out for people that are guilty of doing crimes”, and if someone is guilty they should not talk. She told Mr. Soriano that “if you are innocent of this allegation then it is in your best interest to talk, in my opinion”. The challenge for Mr. Soriano, not knowing the full nature of the allegations against him, and not knowing the law relating to sexual assault, is that he was ill positioned to interpret what she meant. He had no means of clarification because Det. McKinnon did not offer any further interaction with his counsel. [ 86 ] Det. McKinnon told Mr.

Soriano if he is not willing to talk about his interaction with the complainant, it makes him look like he has something to hide. Det. McKinnon added that based on what the complainant said he looked really guilty. [ 87 ] Mr. Soriano is an extremely naive individual who, on the advice of his employer, proceeded directly from a meeting with his employer to the police station to straighten out a work related complaint, as directed by his employer. He was interviewed by a well- trained and much experienced 12 year detective. Det. McKinnon denied Mr.

Soriano his right to counsel of choice, refused his request to speak to his father to assist him with selecting counsel, and told him she was going to ask background questions to be considered for his release. His clear expectation his counsel would be present was disregarded. [ 88 ] He was left to struggle with determining for himself whether the questions she was asking could result in incriminating answers.

He answered some of her questions but declined to answer others attempting to interpret and follow his lawyer’s advice. [ 89 ] His demeanour in the interview room clearly reflected the stress and confusion he was experiencing, easily remedied by further consultation with counsel. The only information about his ability to access counsel came from Det. McKinnon, as he had never been in a police interview before. The officer belittled the advice he received from counsel. [ 90 ] The analysis of voluntariness is context driven.

The totality of the circumstances here include the lack of criminal justice experience by Mr. Soriano, undermining of the advice of his counsel, and failure to offer him further contact with counsel when it was obvious he was confused about the advice given. [ 91 ] Without offering further contact with counsel, Det. McKinnon told him that “the charge of sexual assault can be such an unknown and more of like a grey area”. She told him it would be better for him if he would talk saying “but if you are innocent of this allegation then it’s in your best interest to talk, in my opinion”, after telling Mr.

Soriano that lawyers are “looking out for people that are guilty of doing crimes” when telling someone not to talk. [ 92 ] The burden is on the Crown to prove the statement made by Mr. Soriano voluntary beyond a reasonable doubt “in the broad sense contemplated by Regina v. Oickle ” ( Edmondson , at para. 27 ). I have a reasonable doubt as to the voluntariness of the statement and exclude it. “original signed by:” _________________________ PULLAN P.J.