R. v. Tucker, 2021 ONCJ 165

CITATION: R. v. Tucker , 2021 ONCJ 165 DATE: March 5, 2021 998-18-45606-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. ANDREW N. TUCKER ********** R U L I N G O N C H A R T E R BEFORE THE HONOURABLE MR. JUSTICE G. R. WAKEFIELD On March 5th, 2021, at Oshawa, Ontario Courtroom 407 ********** APPEARANCES H. Harty, Ms. Counsel for the Crown A. Bigioni, Esq. Counsel for the Accused INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO PUBLICATION BAN UNDER

SECTION 486.4(1)OF THE CRIMINAL CODE BY ORDER OF JUSTICE P.K. BURSTEIN, ONTARIO COURT OF JUSTICE, OSHAWA, ONTARIO. R U L I N G Wakefield, J. (Orally): Andrew Tucker stands charged with two counts of assault, one count of sexual assault, one count of criminal harassment. The defendant was provided with rights to counsel upon his arrest at the residence when initially charged with one count of assault simpliciter. He declined the opportunity and advised he wished to tell his side of the story.

The arresting officer had also advised the defendant that he would be released on promise to appear and officer in charge undertaking with terms, later that day, unless the investigation changed the circumstances. The arresting officer transported the defendant to the police station where he was paraded and placed into a cell awaiting an officer from the Domestic Violence Unit to interview him.

He was apparently held in that cell for a number of hours, not quite clear how many, before Detective Constable McLeod entered the cell and advised him of additional charges, being another assault simpliciter, a criminal harassment, and a sexual assault. The detective constable testified that she had recognized the change in jeopardy for the defendant, hence, rights to counsel given again to the defendant while in the cell, who again declined the opportunity.

The defendant testified that he did not get such renewed rights to counsel. The onus is on the defendant as to establishing the breach ofhis

section 10b rights and the onus is on the prosecution to ensure that the police keep appropriate record of rights to counsel having beenprovided. I commend the Crown here, after hearing evidence, for her concession that the defendant's 10(

b) rights were infringed and focusing onthe 24(2) analysis. On the 24(2) analysis, I find as follows. Again, I find myself commending the Crown Counsel for concessions thatthe breach was egregious. In the circumstances of this case it is an appropriate word on the record before me, including the generalissues of electronic recordkeeping by Durham Police. The impact on the defendant's Charter rights I find was serious. There arecircumstances in which accused individuals do feel compelled to unburden themselves of their crimes notwithstanding legal advice orlack thereof, R. v. Harper, (SCC), [1994] 3 S.C.R., 343.

Whether that applies to this defendant in the case at bar iscomplicated by the defendant's early assertion to the arresting officer after being told of a single charge of assault simpliciter, and theintent to release him from the station, that he wanted to tell his side of the story. I have purposedly not read the entirety of thedefendant's in custody statement beyond those portions cited in the trial and in submissions.

He certainly discusses his version of what occurred, but the circumstances of being in custody and without the opportunity to decidewhether to contact legal counsel when his jeopardy changed or facing a potential bail hearing and engaging and refusing -- instead, heengaged and refusing the allegations put to him during the interrogation. As in R. v. Simpson [2020]O.J. No.5628 at paragraph 109, I donot know if the defendant would have still provided a statement. If I cannot so conclude, how can I diminish the impact on his Charterrights rising from the breach? I cannot.

The societal interest in domestic violence is high. Domestic violence does not just impact on the physical victim but on any childrenpresent, as well as impact on the community as a whole. Victims need confidence that their voices will be heard in our justice system. Here the defendant's statement does include some corroborative evidence, but is mostly exculpatory.

I understand that the Crown wishesto use the statement in cross examination which I view as much as a tactical advantage as undermining the trial on its merits, which willstill be founded on the complainant's testimony, an apparent eye-witness, and at least one other Crown witness. This statement is not essential evidence to the Crown case, let alone preventing the continuing prosecution. As such I find the societalinterest not sufficient to outweigh the first two factors.

I find that the average member of our community, knowing all the facts that wehave heard today, would not be outraged by the exclusion of the statement. And certainly such exclusion would not bring theadministration of justice into disrepute. The defendant's statement is excluded.