R. v. M.M.R.T. Date:, 2017 BCPC 428

Citation: R. v. M.M.R.T. Date: 20171201 2017 BCPC 428 File No: 951-1 Registry: Burns Lake, B.C. IN THE PROVINCIAL COURT OF BRITISH COLUMBIA YOUTH CRIMINAL JUSTICE ACT REGINA v. M.M.R.T. REASONS ON VOIR DIRE OF THE HONOURABLE JUDGE J. T. DOULIS Youth Matter - Restriction on Access s.118 & s.110 YCJA Ban on Publication 486.4(2) CCC Counsel for the Crown: Hempstead, J. Counsel for the Defendant: Strimbold, K Place of Hearing: Burns Lake , B.C. Date of Hearing: November 30 and December 1, 2017

Date of Judgment: December 1, 2017 A Corrigendum was released by the court on May 22, 2018. The corrections have been made to the text and the Corrigendum isappended to this document. Introduction [1] M.T. is before the court charged with the sexual assault of R.D. contrary to s. 271 of the Criminal Code. The Crown seeks toprove the voluntariness of a statement M.M.R.T. made on October 15, 2017, to Constable Nicholai Phillips of the Royal CanadianMounted Police (“the RCMP”). M.M.R.T. seeks to have the statement excluded because the circumstances in which it was takenbreached his right to counsel under s. 10(

b) of the Canadian Charter of Rights and Freedoms (the “Charter”). [2] The confessions rule and right to counsel both protect M.M.R.T.’s rights and the fairness of the judicial process: R. v. Oickle,2000 SCC 38 , [2000] 2 SCR 3, para. 69. Nevertheless, applications to prove voluntariness and a breach of an accused’s s. 10(b)Charter rights are independent of each other; they involve different burdens and onuses of proof: R. v. Nakamura, 2011 BCSC 1443,paras: 17 to 19. Accordingly, the Court dealt with the Crown and Defence applications by engaging in a voluntariness voir dire nestedwithin a Charter voir dire.

Issues: [3] The issues before the Court in the two applications are as follows: a. Was M.M.R.T.’s statement to Constable Phillips voluntary? b. Did Constable Phillips breach M.M.R.T.’ s. 10(

b) Charter rights in taking a statement from him on October 15, 2017? c. If Constable Phillips did breach M.M.R.T.’ s. 10(

b) Charter rights, what is the remedy? [4] These applications came before me mid-trial on November 30, 2017, and continued on December 1, 2017. I heard oralevidence in the voluntariness voir dire from Constable Nicholai Phillips and M.M.R.T. The video-recording and transcript ofM.M.R.T.’s statement were entered as exhibits on the voir dire. I received written argument from the Crown and heard oral submissionsfrom counsel. The Crown and Defence provided me with the following authorities: R. v Brodie, [2017] B.C.J. No. 1985; R. v. Friesen,2016 BCSC 2010 , R. v. Tottenham & Hester, 2010 BCPC 424 and R. v.

Calder, (SCC), [1996] 1SCR 660. [5] On December 1, 2017 I provided my oral ruling on the applications; these are my written reasons. Background Facts [6] Under Information 951-1, M.M.R.T., is charged with sexually assaulting R.D. between October 31, 2016 and November 1,2016, at or near [omitted for publication], B.C. At the time of the offence, R.D. was 16 years old and M.M.R.T. was 17. Although he isnow 18, M.M.R.T. is being tried as a youth under the Youth Criminal Justice Act. [7] R.D.’s allegations that M.M.R.T. sexually assaulted her came to the attention of the police on November 1, 2016.

Thecomplaint was investigated by Constables James Wingfield, Christine Robinson (nee Gallop), Deborah Goble and Nicholai Phillips. Atthe time all the officers were members of the RCMP stationed in Burns Lake, B.C. [8] Constable James Wingfield was the lead investigating officer on this matter. Upon reviewing the recorded statement of R.D.and the medical evidence of Dr. Jason O’Connell, Constable Wingfield arrested M.M.R.T. for the offence with which he is nowcharged. [9] Constable Wingfield effected M.M.R.T.’s arrest on November 2, 2016, at the [omitted for publication] in Burns Lake, B.C.

Constable Wingfield went to the [omitted for publication] around 10:00 a.m. and spoke to [omitted for publication]. She escortedM.M.R.T. to her office so Constable Wingfield could arrest him in private. [10] Constable Wingfield advised M.M.R.T. he was being arrested for sexual assault under s. 271 of the Criminal Code and analintercourse under s. 159(1).

Constable Wingfield was aware M.M.R.T. was a youth and advised him of his right to speak to a lawyer,parent or guardian or other adult and that he did not have to speak to Constable Wingfield. [11] Once he had escorted M.M.R.T. into the police vehicle, Constable Wingfield read M.M.R.T. his Charter rights and policewarning verbatim from prepared cards. [12] M.M.R.T. was cooperative with Constable Wingfield during this process. He responded to the officer with short answers andasked only about contacting a lawyer. [13] Constable Wingfield took M.M.R.T. into custody on November 2, 2016.

Corporal Aaron Semmler with the Burns Lake RCMPput M.M.R.T. in contact with his mother, S.T., by telephone. She attended the detachment later that evening after she could leave work. [14] M.M.R.T. was unsure which lawyer to call so he asked his mother (S.T.) to choose for him. She chose Mr. Karl Strimbold, whois M.M.R.T.’s legal counsel in this trial. [15] At 10:38 a.m. on November 2, 2016, M.M.R.T. was given an opportunity to speak to Mr. Strimbold. Constable Wingfieldplaced M.M.R.T. in a private phone room to speak to Mr. Strimbold for about 15 minutes. M.M.R.T. was released that same day on a

Form 11.1 Undertaking to a Peace Officer or an Officer in Charge on a number of conditions, including a condition he have no contact or communication with R.D. or go to the [omitted for publication]. [ 16 ] M.M.R.T. did not provide the police with any statement with respect to this matter at or around the time of his arrest on November 2, 2016. [ 17 ] This matter was assigned police file 2016-2783 and on January 3 rd , 2017 M.M.R.T. was charged by Information 951-1 with one count of sexually assaulting R.D. [ 18 ] At the time of the offence and at the time the charges were laid, M.M.R.T. was a young person within the meaning of the Youth Criminal Justice Act (“ YCJA ”) and entitled to the protections of that legislative scheme.

Section 146 of the YCJA sets out the general law on the admissibility of statements of young persons charged with a criminal offence. It states: General law on admissibility of statements to apply 146

(1) Subject to this section, the law relating to the admissibility of statements made by persons accused of committing offences applies in respect of young persons. When statements are admissible

(2) No oral or written statement made by a young person who is less than eighteen years old, to a peace officer or to any other person who is, in law, a person in authority, on the arrest or detention of the young person or in circumstances where the peace officer or other person has reasonable grounds for believing that the young person has committed an offence is admissible against the young person unless (

a) the statement was voluntary; (

b) the person to whom the statement was made has, before the statement was made, clearly explained to the young person, in language appropriate to his or her age and understanding, that (

i) the young person is under no obligation to make a statement, (ii) any statement made by the young person may be used as evidence in proceedings against him or her, (iii) the young person has the right to consult counsel and a parent or other person in accordance with paragraph (c), and (iv) any statement made by the young person is required to be made in the presence of counsel and any other person consulted in accordance with paragraph (c), if any, unless the young person desires otherwise; (

c) the young person has, before the statement was made, been given a reasonable opportunity to consult (

i) with counsel, and (ii) with a parent or, in the absence of a parent, an adult relative or, in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person, as long as that person is not a co-accused, or under investigation, in respect of the same offence; and (

d) if the young person consults a person in accordance with paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person. [ 19 ] M.M.R.T. entered a not-guilty plea and on February 27, 2017. This matter (“Court File 951”) was scheduled for a four day trial scheduled to proceed from November 28 to December 1, 2017. [ 20 ] On October 13, 2017, M.M.R.T. was arrested on charges relating to another matter which were as or more serious than the one before the court.

These charges were assigned police file 2017-567 and Court File 966-1-K (“Court File 966”). [ 21 ] The charges on Court File 966 are also alleged to have occurred when M.M.R.T. was 17; however by the time he was charged, M.M.R.T. was 18. M.M.R.T.’s date of birth is [omitted for publication]. [ 22 ] Although Constable Nicholai Phillips was the lead investigator on Court File 966, Constable Wiksyk was the arresting officer.

Constable Wiksyk advised M.M.R.T. of his Charter rights and provided him with a police caution. [ 23 ] M.M.R.T. was detained in custody until released on a Recognizance to a Judge on October 25, 2017, on both Court Files 951 and 966. [ 24 ] In the afternoon of October 13, 2017, Constable Wiksyk provided M.M.R.T. access to his counsel of choice, which was his current lawyer, Mr. Karl Strimbold. When M.M.R.T. tried to contact him on October 13, 2017, Mr. Strimbold was unavailable.

Constable Wiksyk offered to put M.M.R.T. in touch with duty counsel, which M.M.R.T. accepted. [ 25 ] Although the lead investigating officer on Court file 966, Constable Phillips was not on duty at the time of M.M.R.T.’s arrest. Constable Phillips understood from his review of the police file that M.M.R.T. spoke to Mr. Strimbold for two or three minutes and to duty counsel for around seven minutes. [ 26 ] M.M.R.T. testified that he was only able to speak to Mr. Strimbold’s secretary on October 13, 2017, and she told him Mr. Strimbold was not available at that time.

[ 27 ] To expedite matters, counsel for the Crown and Defence agreed not to call Constable Wiksyk to testify in the Charter or voluntariness voir dires. [ 28 ] When arrested on Court File 966, M.M.R.T.’s trial of Court File 951 was scheduled to proceed for four days from November 28, 2017 to December 1, 2017, inclusive. Mr. Strimbold was and remains M.M.R.T.’s counsel of record on Court File 951. [ 29 ] There is no evidence before me indicating that after M.M.R.T. spoke to duty counsel on October 13, 2017, the RCMP offered to try and facilitate his access to Mr.

Strimbold prior to taking the October 15, 2017 statements on Court Files 966 or 951. [ 30 ] Although M.M.R.T. was a young person at the time of the offences under Court Files 966 and 951, he was 18 at the time of his arrest on October 13, 2017. Accordingly, the police did not afford him the protection of s.146 of the YCJA. [ 31 ] Constable Phillips was not on shift on October 13 and 14, 2017. When he returned to work on October 15, 2017, Constable Phillips was assigned Court File 951 in addition to Court File 966 because Constable Wingfield was on leave.

Upon Constable Phillips’ return on October 15, 2017, M.M.R.T. was still in custody. [ 32 ] On October 15, 2017, Constable Phillips took a statement from M.M.R.T. with respect to Court File 966. That statement was 1 to 1½ hours long, ending at 5:23 p.m. [ 33 ] On October 15, 2017, Constable Phillips also decided to interview M.M.R.T. with respect to Court File 951.

Constable Phillips gave M.M.R.T. a two-hour break after interviewing him on Court File 966, and then brought him into the RCMP soft interview room at 8:41 p.m. to interview him on Court File 951. [ 34 ] Constable Phillips interviewed M.M.R.T. with respect to Court file 951 from 8:41 p.m. to 10:07 p.m. Although M.M.R.T. was not in custody on Court file 951, he was in custody on Court file 966. [ 35 ] At the outset of the statement, Constable Phillips advises M.M.R.T.: . . . so what I want to talk to you about now is totally different than the other file that we talked about earlier.

So we won’t talk about that one at all . . . I’ll just go over your rights again . . . you know you have the right not [to] to talk to me. . .

Do you understand that? . . . while you have been in custody has any police officer bribed you, promised you, or threatened you with anything to talk to me. [ 36 ] M.M.R.T. said no one made any bribes, promises or threats. [ 37 ] With respect to his right to counsel Constable Phillip states: So you’re not in custody on this file and from my understanding of looking [at this] file, you’ve had the opportunity to speak to counsel is that right? [ 38 ] M.M.R.T. agreed he had an opportunity to speak to counsel on this matter. [ 39 ] Constable Phillips described M.M.R.T. as healthy, articulate, sober, alert and free of any cognitive, mental or physical disability. [ 40 ] M.M.R.T. testified in the voluntariness voir dire , in which he stated: a.

When taken into custody on October 13, 2017 on Court file 966, he tried to contact Mr.

Strimbold who was not available to speak to him at the time; b. he was confused and scared; c. he was able to speak to duty counsel; d. he received legal advice from the duty counsel with which he was satisfied; e. he was told of his right to remain silent but, notwithstanding this caution, he provided a statement on Court file 966 and 951; f. he was not deprived of food or water, although he didn’t eat his dinner because he was not hungry; g. he was sober; h. he was told he could have a cigarette, but the RCMP never facilitated this request; i. he thought he would be released on bail, but instead was shipped off to PGRCC (Prince George Regional Correction Centre) until he was released on a Recognizance to a Judge [on October 25, 2017]; j. he was not pressured into speaking to the police. [ 41 ] Neither Constable Phillips nor any other RMCP officer provided M.M.R.T. with further access to counsel.

Specifically, he was not given another opportunity to speak to Mr. Strimbold, the lawyer representing him in the trial of this matter (Court File 951), which was scheduled to commence within six weeks or so. [ 42 ] M.M.R.T.’ statement was an audio-video recorded interview. The video recording and a transcript of the recording was put into evidence in the voluntariness voir dire.

[43] My observations of M.M.R.T. both during his interview with Constable Phillips and while testifying was that he wascooperative and non-combative. I was left with the impression after viewing his video-recorded statement, that M.M.R.T. soughtConstable Phillips’s approval. In fact, M.M.R.T. started off the interview by telling Constable Phillips he wanted to be a police officer. [44] M.M.R.T. had no trouble understanding and taking

part in the conversation with the officer. He appeared to have a fullunderstanding of what was happening. [45] M.M.R.T. was given access to water and washroom breaks when requested. The interview was not particularly lengthy oroppressive. Constable Phillips took multiple breaks during the interview process. He was generally polite to and respectful of M.M.R.T.during the interview. [46] At that end of his statement, M.M.R.T. indicated he was tired; however, he did not exhibit signs of fatigue. Constable Phillipsconcluded the interview almost an hour before M.M.R.T.’s regular bedtime of 11 p.m.

REASONS AND RULING ON VOLUNTARINESS VOIR DIRE Legal Framework [47] The legal framework for determining the admissibility of a statement made by a suspect when interrogated by police officers isgoverned by the confessions rule. [48] Statements made by a suspect to police are inadmissible unless they are made voluntarily: R. v.

Spencer, 2007 SCC 11, para. 11; Brodie, para. 77-78. [49] The Crown bears the onus of proving statements are voluntary to a standard of beyond a reasonable doubt: Oickle, para. 141;Brodie, para. 77. [50] Voluntariness can only be determined by considering all the circumstances of the accused in the context in which the statementwas taken: Oickle, para. 47; Brodie, para. 78. [51] Ultimately, the court must determine whether the accused exercised free will by choosing to make a statement.

In this case, thequestion is whether M.M.R.T. made a voluntary choice to talk to police or was deprived of choice through incapacity or intimidation:Brodie, at para. 79; R. v. Singh, 2007 SCC 48, at para. 43. [52] The analysis of a statement's voluntariness is highly fact specific.

The Court must examine the circumstances of the interview todetermine whether there is a reasonable doubt about voluntariness taking into consideration the following factors: a. whether there were threats or promises made; b. whether the suspect was subjected to oppression; c. whether he had an operating mind; and d. whether there was police trickery. [53] If a confession is involuntary for any of these reasons, it is inadmissible: Brodie, para. 81 and 82, citing Oickle at paras. 47-71and R. v.

Deboo, 2014 BCSC 1949 at para. 52, aff’d 2016 BCCA 62 ; Friesen, para. 17. [54] The Court must look at all the circumstances to determine whether the accused’s will to choose whether to speak was overborneby inducements, threats or oppression or the lack of an operating mind: Brodie at para. 83 citing Oickle, at para. 58.

In Spencer, at para.15, the Supreme Court held the key to making this assessment is the strength of the alleged inducement. [55] Threats or promises typically arise in a quid pro quo offer by the interviewer: Brodie at para. 82 citing Oickle at para 57.Examples of impermissible police techniques include physical abuse, violence, imminent threats of torture, offer of leniency, promisingnot to charge a relative or loved one, or telling a suspect “it would be better if you tell the truth” where it signals some consequence in thelegal process: Oickle, para. 55; Friesen, para. 18. [56] Oppression may occur where a suspect is deprived of food, clothing, water, sleep or medical attention, denied access to counselor subjected to aggressive, intimidating questioning over a prolonged duration: Brodie, para. 83; Oickle, paras. 58 and 60.

Confronting asuspect with inadmissible or fabricated evidence can contribute to the oppressive conditions as can denying access to counsel: Oickle,para. 61. In Friesen, Justice Devlin states at para. 19, in part: [19] Oppression refers to the atmosphere and conditions surrounding the making of a statement.

The question is whether the situationwas so distasteful as to produce a stress-compliant confession, or the accusations so relentless that they overbore the will of the detaineein the sense that they came to doubt their own memory . . . [57] The “operating mind” factor requires the suspect have an awareness of what he is saying and that he is saying it to policeofficers who can use it to his detriment: Brodie, para. 84 citing Oickle, para. 63. However, the Court is not required to inquire as towhether the accused is capable of making a good or wise choice or one that is in his or her best interest: R. v.

Whittle, (SCC), [1994] 2 S.C.R. 914 at para. 45 ; Brodie at para. 84 citing Deboo. [58] Police trickery is an independent or distinct inquiry related to maintaining integrity of the criminal justice system. The conductmust rise to the level of that which shocks the community, such as the police pretending to be a chaplain or legal aid lawyer orpsychiatrist: Brodie, para. 81; Oickle, para. 66.

Issue #1: Was M.M.R.T.’ statement to Constable Phillips voluntary? Position of the Crown [ 59 ] The Crown’s position is M.M.R.T.’ October 15, 2017 statement to Constable Phillips is voluntary in that M.M.R.T. exercised his free will in choosing to make a statement. The Crown submits that looking at the totality of the circumstances, M.M.R.T.’ will was not overborn in anyway by being in custody or the manner in which the interview was conducted. The Crown points to the following evidence: a.

In cross-examination on the voluntariness voir dire, M.M.R.T. said that when Constable Phillips spoke to him about his rights, he understood he had the right to speak to the police or not and to discern what it was he would say; b. the environment in which Constable Phillips took M.M.R.T.’ statement was not oppressive. The statement was taken in the RCMP’s soft interview room. M.M.R.T. was not in restraints. He was not aggressively grilled. The interviewing officer was soft-spoken, calm and polite throughout. The interview was more in the way of a chat than an interrogation; c.

M.M.R.T. was aware he was being video and audio-recorded; d. M.M.R.T. was given plenty of water and bathroom breaks; e. the interview was not lengthy - 1.5 hours in total inclusive of numerous breaks; f. the interview concluded at 10 p.m., an hour before M.M.R.T.’ regular bedtime; g. there was no sign M.M.R.T. was yawning or otherwise fatigued; h. although M.M.R.T. was interviewed twice on October 15, 2017, he had a two hour break between sessions; i. M.M.R.T. had the option to eat during the two hour break but chose not to because he wasn’t hungry; j.

M.M.R.T. told Constable Phillips at the time of the interview and admitted in cross examination, he was not offered any bribes or promises or subjected to any threats; k. M.M.R.T. was sober, alert and healthy; l. M.M.R.T. had an operating mind and understood what was happening. This is apparent from his response to Constable Phillips question: “So, do you know what I want to talk about?” M.M.R.T. replied, “R.A.” When Constable Phillips said, “I would like you to tell me. . . “, M.M.R.T. finished his sentence, “from the start to the end.” m.

M.M.R.T. even choreographed the event to better explain to Constable Phillips what had happened; and n. M.M.R.T.’ statement he was confused about what was going on is contradicted by the video recording. [ 60 ] The Crown points out the tie between the voluntariness voir dire and s. 10 (

b) Charter voir dire is M.M.R.T.’ claim he was denied the right to counsel. In this regard the Crown submits: a. this is not a case where there M.M.R.T. had no opportunity to exercise his right to counsel; b. there was no deliberate denial of M.M.R.T.’ right to counsel; c. the case is novel in that the statement taken was in respect to a prior and separate prosecution already before the court; d. in cross examination, M.M.R.T. acknowledged he was given the right to counsel in November 2016 and he has had the same counsel since then; e.

M.M.R.T. acknowledged in cross-examination he received sufficient access to counsel and sufficient information on Court File 966; f. Constable Phillips emphasized to M.M.R.T. he had the right to remain silent; g. Constable Phillips testified in his direct evidence, he would have allowed M.M.R.T. a further opportunity to speak to counsel if he had asked to do so; and h. Facilitating his right to counsel is only one of the factors the Court must consider in assessing whether M.M.R.T.’s statement to Constable Phillips was voluntary.

Position of the Defence [ 61 ] The Defence concedes M.M.R.T.’ statement to Constable Phillips was not obtained through police trickery, threats or promises, in an oppressive atmosphere, or in the absence of an operating mind. What makes it inadmissible from the Defence’s perspective is that prior to taking the statement Constable Phillips did not inform M.M.R.T. of his right to consult with legal counsel with respect to the offence for which he was being interviewed.

When Constable Phillips obtained the October 15, 2017 statement, the last time M.M.R.T. consulted with legal counsel while detained on Court File 951 was on November 2, 2016, approximately 11 ½ months earlier. Moreover, the counsel with whom M.M.R.T. consulted on October 13, 2017, with respect to Court File 966 was duty counsel who would not have known about M.M.R.T.’ charge under Court File 951.

Conclusion on voluntariness [62] I have listened to the statement and the evidence in the voir dire of the circumstances in which it was made. Although I amdeeply troubled at Constable Phillips decision to interview M.M.R.T. on Court File 951 without first advising him of his right to legalcounsel, I cannot find it inadmissible by reason of those factors set out in the common law confessions rule. Constable Phillips did notobtain M.M.R.T.’s October 15, 2017 statement on this matter, by “fear of prejudice” or “hope of advantage” within the meaning of thoseterms in Ibrahim v.

The King, [1914] A.C.599 (P.C.) at p. 609; and Oickle at paras. 24-25. R. v. Nakamura, 2011 BCSC 1443 at para. 25. [63] I agree with the Crown that depriving an accused the right to counsel is but one factor in assessing the voluntariness of anaccused’s statement. In this regard, an accused’s right under s. 10(

b) of the Charter differ from those under s. 7. The Supreme Court hasheld that if the Crown proves voluntariness beyond a reasonable doubt, there is no violation of the right to silence in respect of the samestatement: Singh, para. 37. The right to counsel under 10(b), however, although inextricably bound up with the right to silence, it is notsubsumed by that right: Sinclair, para. 124.

In other words, the right to counsel is not synonymous with the right to silence. [64] Although it appeared to me that M.M.R.T. was seeking to appease Constable Phillips, I cannot find his statement was unreliablebecause of police coercion, intimidation or inducement. [65] The circumstances in which Constable Phillips took the statement were not oppressive. The interview was conducted in theRCMP soft interview room. M.M.R.T. was not subject to degrading or inhumane conditions. The interview was reasonable, non-threatening, comfortable and friendly.

Although Constable Phillips challenged M.M.R.T. on the issue of consent, he did not do so in anoverly aggressive or obnoxious manner. [66] At the time of the interview, M.M.R.T. was a young vulnerable First Nations adolescent. Still, I conclude from the content andmanner of his responses during the interview and his evidence in the voir dire that M.M.R.T. did have an operating mind when providinghis statement to Constable Phillips. He was not distraught or overwhelmed by his circumstances or by the interview process.

He madehis own choices about what he would say or do. [67] In assessing the voluntariness of M.M.R.T.’ statement, I must balance his Charter rights with society’s interest in uncoveringthe truth about crimes: Singh, at para. 45 citing R. v. Hebert, (SCC). In doing so, I find the Crown has provenM.M.R.T.’s October 15, 2017 statement to Constable Phillips voluntary beyond a reasonable doubt. The evidence, including the audio-video recording and the statement, in Voluntariness Voir Dire # 4 will be evidence on the Charter Voir Dire # 3.

REASONS AND RULING ON CHARTER VOIR DIRE Legal Framework [68] The Defence argues that the Police violated M.M.R.T.’ s. 10(

b) Charter rights which state: Everyone has the right on arrest or detention ... (

b) to retain and instruct counsel without delay and to be informed of that right Right to Counsel [69]

Section 10(

b) of the Charter provides that persons who are detained for investigative purposes must be advised in clear andsimple language of the reasons for the detention: R. v. Mann, 2004 SCC 52, at para. 21. Advising an accused of the reasons for theirdetention is more than a formal requirement. It is necessary because an individual can only meaningfully exercise their 10(

b) right if theyknow the extent of their jeopardy: Brodie, para. 102, citing R. v. Black, (SCC). Purpose of 10(

b) of the Charter [70]

Section 10(

b) of the Charter recognizes a person who is detained or arrested is in immediate need of legal advice in order toprotect his or her right against self-incrimination and to assist him or her in regaining his or her liberty: R. v. Taylor, 2014 SCC 50 atpara. 22, citing R. v. Bartle, (SCC), [1994] 3 S.C.R. 173; Tottenham & Hester, at para. 18, citing Prosper at para. 18 andBartle at para. 19. [71] The purpose of 10(

b) is to allow the accused not only to be informed of his rights and obligations under the law, but, equally ifnot more important, to obtain advice as to how to exercise those rights: R v. Mannien, (SCC), [1987] 1 S.C.R. 1233,para. 23; Brodie, para. 108 [72] In 2010 the Supreme Court of Canada handed down a trilogy of cases dealing with rights to counsel, namely R. v. Sinclair 2010SCC 35 , R. v. McCrimmon 2010 SCC 36 and R. v. Willier, 2010 SCC 37 , [2010] 2 S.C.R. 429. In Sinclair,the Supreme Court held the purpose of 10(

b) is to “support the detainee’s right to choose whether to cooperate with the policeinvestigation or not, by giving him access to legal advice on the situation he is facing.” Burden of Proof [73] The onus is on the accused on a balance of probabilities to establish a breach of 10(

b) and that, as a result of the breach, theevidence should be excluded under s. 24(2) of the Charter: Brodie, para. 4; R. v. Collins, (SCC), [1987] 1 S.C.R. 265. Scope of the s. 10(

b) rights [74] In Sinclair, at para. 38, the Supreme Court held the scope of a detainee’s 10(

b) must be defined by reference to:

a. its language; b. the right to silence; c. the common law confessions rule; and d. the public interest in effective law enforcement in Canada. [75] In R. v. Suberu, [2009 SCC 33 , at para. 42, the Supreme Court held that words “without delay” mean “immediately”for the purposes of 10(b): [42] . . . Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter,the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediatelyupon detention. Triggering event [76] An accused’s s. 10(

b) Charter rights are triggered on detention. Detention means the suspension of the accused’s liberty interestby a significant physical or psychological restraint: R. v. Grant 2009 SCC 32 , [2009], 2 S.C.R. 353.

In Singh, Charron J., for themajority addressed the vulnerability of a detainee: [32] Although the confessions rule applies whether or not the suspect is in detention, the common law recognized, also long beforethe advent of the Charter, that the suspect’s situation is much different after detention. (As we shall see, the residual protection affordedto the right to silence under s. 7 of the Charter is only triggered upon detention.) After detention, the state authorities are in control andthe detainee, who cannot simply walk away, is in a more vulnerable position.

There is a greater risk of abuse of power by the police. Thefact of detention alone can have a significant impact on the suspect and cause him or her to feel compelled to give a statement. Theimportance of reaffirming the individual’s right to choose whether to speak to the authorities after he or she is detained is reflected in thejurisprudence concerning the timing of the police caution.

Ren— Marin, in his text Admissibility of Statements (9th ed. (loose-leaf)), atpp. 2-24.2 and 2-24.3, provides a useful yardstick for the police on when they should caution a suspect: The warning should be given when there are reasonable grounds to suspect that the person being interviewed has committed an offence.An easy yardstick to determine when the warning should be given is for a police officer to consider the question of what he or she woulddo if the person attempted to leave the questioning room or leave the presence of the officer where a communication or exchange istaking place.

If the answer is arrest (or detain) the person, then the warning should be given. Duties and Authorizations of Police [77] Police officers have duties to ensure a detainee’s s. 10(

b) Charter rights are respected. These duties include both informationaland implementational duties. Informational Duty [78] When a person is arrested or detained, the police must inform him or her: a. of the right to retain and instruct counsel without delay: Manninen; and b. the availability of Legal Aid and Duty Counsel: R. v. Brydges, (SCC), [1990] 1 S.C.R. 190. Where it exists,the availability of 24/7 free access to Duty Counsel and the availability of a 1-800 number to access that service: R. v. Bartle; R. v.Prosper, (SCC), [1994] 3 S.C.R. 236. [79] The police duty extends beyond a mechanical recitation of a detainee’s 10(

b) rights. The police must facilitate the detainee’sunderstanding of those rights: Willier, para. 31. [80] In Willier, the Supreme Court held (at paras. 31 & 32) that police have an additional duty when a detainee has been diligent, butunsuccessful, in contacting counsel, and then declines the opportunity to do so.

Section 10(

b) mandates that police provide a “Prosperwarning” by explicitly informing the detainee: a. of the detainee’s right to a reasonable opportunity to contact counsel; and, b. the police obligation to hold off questioning until reasonable opportunity is over or counsel is contacted. Implementational Duties [81] The police implementational duties are triggered when a detainee chooses to exercise his or her 10(

b) rights. [82] At this stage, police must facilitate the exercise of the right to counsel, which includes: a. provide a reasonable opportunity to contact counsel; b. at the first reasonable opportunity; c. in private; and d. refrain from questioning the detainee until that opportunity is provided.

[83] These duties, however, are contingent upon the detainee’s exercising reasonable diligence in attempting to consult counsel: R v.Taylor, 2014 SCC 50; Willier, para. 208; Manninen; Tottenham & Hester, at para. 20, citing Prosper. Limits of s. 10(

b) rights: Counsel of Choice [84] The police must give a detainee reasonable opportunity to consult counsel of choice. The Police have duty to “hold off”questioning during this time. However, if the chosen lawyer cannot be contacted or be available within reasonable time, the detainee isexpected to contact another lawyer: R. v. McCrimmon, 2010 SCC 36, para. 17; R. v. Willier, 2010 SCC 37. [85] A “reasonable period of time” to contact counsel depends on the circumstances as a whole, taking into consideration suchfactors as the seriousness of the charge and the urgency of the investigation.

In Willier, McLachlin C.J.C. and Charron J. summarizedthe law with respect to a detained person instructing his or her counsel of choice at para. 35: [35] Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(

b) entitles them to a reasonableopportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees havethe right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amountsto a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the chargeand the urgency of the investigation: Black.

If the chosen lawyer cannot be available within a reasonable period of time, detainees areexpected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended: R. v. Ross, (SCC), [1989] 1 S.C.R. 3; and Black. As Lamer J. emphasized in Ross, diligence must also accompany a detainee’s exerciseof the right to counsel of choice, at pp. 10-11: Although an accused or detained person has the right to choose counsel, it must be noted that, as this Court said in R. v.

Tremblay, (SCC), [1987] 2 S.C.R. 435, a detainee must be reasonably diligent in the exercise of these rights and if he is not, thecorrelative duties imposed on the police and set out in Manninen are suspended. Reasonable diligence in the exercise of the right tochoose one’s counsel depends upon the context facing the accused or detained person. On being arrested, for example, the detainedperson is faced with an immediate need for legal advice and must exercise reasonable diligence accordingly. By contrast, when seekingthe best lawyer to conduct a trial, the accused person faces no such immediacy.

Nevertheless, accused or detained persons have a rightto choose their counsel and it is only if the lawyer chosen cannot be available within a reasonable time that the detainee or the accusedshould be expected to exercise the right to counsel by calling another lawyer. Limits of s. 10(

b) rights: Right to Re-Consult [86] The Supreme Court stated that in most cases, an initial warning, coupled with a reasonable opportunity to consult counsel whenthe detainee invokes the right, satisfies 10(b): Sinclair, para. 2. There is no freestanding right to re-consult with counsel after there hasbeen an initial consultation at the time of detention or shortly thereafter: Friesen, para. 21 [87] Generally, a detainee has the right to contact counsel once; there is no right to ongoing legal assistance during the interview:Sinclair, para. 31.

Exception to the Right to Re-Consult [88] Where there is a change in circumstances, police have obligation to allow reasonable opportunity to consult counsel again:Brodie, at 102. [89] In Sinclair, McLachlin C.J. and Charron J. for the majority ruled the police must give the accused additional opportunity tospeak with counsel where there is a change in the circumstances. The change must be “objectively observable” and may result from: a. new procedures involving the accused; b. a change in jeopardy facing the accused; and c. reason to believe that the initial information provided was deficient.

Friesen, para. 22. [90] The categories constituting a change of circumstances are not closed; however, the Supreme Court cautioned that additions tothem should be developed only where necessary to ensure that s. 10(

b) of the Charter has achieved its purpose: Sinclair, para. 49;Friesen, para. 22. [91] As mentioned above, the change of circumstances must be objectively observable in order to trigger additionalimplementational duties for the police. Sinclair states at para. 55: The change of circumstances, the cases suggest, must be objectively observable in order to trigger additional implementational duties forthe police.

It is not enough for the accused to assert, after the fact, that he was confused or needed help, absent objective indicators thatrenewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the policeinvestigation or refuse to do so. Police Duties Re-Triggered [92] If there is a change in circumstances, the detainee’s 10(

b) rights are re-triggered and the police must discharge theirinformational and implementational duties again: Sinclair, para. 51. Issue #2 Did Constable Phillips breach M.M.R.T.’ s. 10(

b) Charter rights in taking a statement from M.M.R.T. on October 15, 2017?

Position of the Crown [93] Relying on the legal principles set out in Sinclair, the Crown submits: a. M.M.R.T. had been originally arrested on the matter before the court (Court File 951) on November 2, 2016. M.M.R.T.acknowledged that at that time he was told the charge against him and his right to counsel; b. M.M.R.T.’s jeopardy on Court File 951 as to the investigation or charge has never changed since his initial consultation withlegal counsel on November 2, 2016; c. M.M.R.T. has always been aware of his jeopardy on this matter; d.

When M.M.R.T. was arrested on October 13, 2017, it was on a separate offence (Court File 966) which M.M.R.T.acknowledges was a more significant and serious offence than the one charged in Court File 951; e. M.M.R.T.’s jeopardy changed in that he was facing new charges. However, he was advised of his right to counsel on the newmatters (Court File 966) and the police facilitated his access to counsel. M.M.R.T. does not challenge the quality of the advice hereceived or the manner in which the police implemented his right to counsel; f.

Notwithstanding his access to counsel, M.M.R.T. gave a statement to the police regarding the new allegations on Court File966. The Crown argues the evidence indicates it is very likely M.M.R.T. would have provided the statement to the RCMP even if givena further opportunity to speak to counsel on Court File 951. M.M.R.T. was fully aware of what Constable Phillips was saying about hisnot having to talk to the police; g. The police treated the statement of Court File 951 as separate from the matter under Court file 966. M.M.R.T. was at liberty onCourt File 951, and not re-arrested on that matter.

There is no evidence before the Court to suggest the two matters were linked; and h. M.M.R.T.’s jeopardy on Court File 951 has not changed. Such a change in jeopardy was not “objectively observable” as thelaw requires, nor did the new circumstances make the initial advice received inadequate. [94] The Crown points to the case in Tottenham and Hester, where police continued their investigation of Mr. Hester after his arrestand detention. Mr. Hester had been given his s. 10(

b) Charter rights upon arrest and was represented by counsel. Six weeks later, thepolice attended the institution where Mr. Hester was detained to obtain his fingerprints under the Identification of Criminals Act. At thistime the police took a statement from Mr. Hester without re-informing him of his right to counsel and providing him an opportunity tore-consult. The defence argued the fingerprinting was simply a pretext to obtain a statement and the police had infringed Mr. Hester’s10(

b) rights. [95] Judge de Couto concluded the police conduct was proper and not a ruse. Even though Mr. Hester was detained, the police wereentitled to take advantage of the opportunity to interview the accused in the circumstances. Judge de Couto goes on to state: [53] As has been stated by the jurisprudence on many occasions, the state is not obligated to protect the suspect against making astatement: ... indeed, "it is open to the state to use legitimate means of persuasion to encourage the suspect to do so. R. v.

Hebert, (SCC) [96] Crown Counsel notes that Sinclair has been cited 356 times on Canlii yet there are no authorities comparable to the one beforethe court. In this case the police took advantage of the accused’s detention on new charges to interview him on a previous matter whichhad been investigated, charged and awaiting trial. The Crown submits that even in these circumstances the police are free to continuetheir investigation. [97] In sum, the Crown’s position is M.M.R.T.’s right to re-consult counsel with respect to Court File 951 was not triggered onOctober 13 or 15, 2017.

M.M.R.T.’s jeopardy had not changed on Court File 951 from the time he initially consulted with counsel onNovember 2, 2016. Moreover, the statements M.M.R.T. gave on October 15, 2017, on Court Files 966 and 951 were not linked. Thepolice were entitled to continue their investigation on Court File 951 notwithstanding the fact the matter was awaiting trial. Position of the Defence [98] The Defence submits that M.M.R.T.’ s. 10(

b) Charter rights were breached when Constable Phillips took a statement from himwithout informing him of his right to consult counsel and providing him with an opportunity to do so. In this case, the police knew thatM.M.R.T. consulted duty counsel with respect to the charges under Court File 966. The duty counsel was not M.M.R.T.’s lawyer andwould not have known his current situation. [99] The Defence submits the following circumstances triggered M.M.R.T.’s 10(

b) rights on October 15, 2017: a. M.M.R.T. was arrested on November 2, 2016 and charged on January 3rd, 2017. He entered a not guilty plea and fixed a datefor trial on February 27, 2017; b. M.M.R.T.’s four day trial on Court File 951 was scheduled to commence on November 28, 2017; c. M.M.R.T. had maintained his right to silence from the time of his arrest on November 2, 2016, until he was interviewed byConstable Phillips on October 15, 2017; and d. As Mr. Strimbold was unavailable when M.M.R.T. called him on October 13, 2017, M.M.R.T. consulted with duty counsel

with respect to the new charges on Court File 966 for which he had been arrested and detained. Decision on M.M.R.T.’ s. 10(

b) Charter application [100] I find M.M.R.T.’ s. 10(

b) Charter rights were breached. In my view the fact the two statements M.M.R.T. gave on October 15,2017, were not derivative distinguishes this case from Brodie, Tottenham and Hester, and Friesen. Although the police affordedM.M.R.T. the right to consult with duty counsel with respect to Court File 966, there is no evidence they advised M.M.R.T. he couldhave waited and consulted with Mr. Strimbold provided he could do so diligently. [101] I also find there was a change in circumstances since November 2, 2016, when M.M.R.T. first consulted with Mr. Strimbold onCourt File 951.

On October 15, 2017, M.M.R.T. was in custody and charged with offences on two significant and unrelated matters. Hewas now 18 and no longer entitled to the protection of the s. 146 of YCJA. Court File 951 had progressed from M.M.R.T.’s initial arrestto charge to arraignment to trial. Most significantly, it had been almost a year since M.M.R.T. was detained on Court File 951 and givenaccess to legal counsel. [102] In my view, prior to interviewing him on Court File 951, the police ought to have respected M.M.R.T. s. 10(

b) Charter rights. M.M.R.T. was a vulnerable First Nations young man with limited experience in criminal proceedings. He seemed eager to answerConstable Phillips questions and in so doing demonstrated little instinct for self-interest. The police ought to have advised M.M.R.T. ofhis right to consult with his own lawyer on the matter subject of the interview and afforded him a reasonable opportunity to so. Althoughthe offence charged in Court File 951 was serious, there was no urgency.

Presumably, the Crown believed it already had sufficientevidence to prosecute Court File 951 when setting the trial date eight months earlier. [103] In sum, I find M.M.R.T. October 15, 2017 statement to Constable Phillips on this matter (Court File 951) was obtained in amanner that infringed his s. 10(

b) Charter rights. Issue #3: If Constable Phillips did breach M.M.R.T.’ s. 10(

b) Charter rights, what is the remedy? [104] Having found the police breached M.M.R.T.’ s. 10(

b) Charter rights in taking his October 15, 2017 statement on Court File 951,I must now consider whether that statement ought to be excluded in whole or in part under s. 24(2). 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [105] Although s. 24(2) allows evidence to be excluded where there is a Charter breach, it is not compulsory: R. v. Bacon, 2012BCCA 323 at para. 18. [106] In R. v.

Grant, 2009 SCC 32 , the Supreme Court set out the analytical framework for the s. 24(2) analysis. The factorswhich the Court must weigh and consider are as follows: a. the seriousness of the Charter-infringing state conduct; b. the impact of the breach on the Charter-protected interests of the accused; and c. society's interest in the adjudication of the case on its merits. [107] In Brodie, citing from R v. Robertson, 2017 BCSC 965 , Justice Devlin states at paras. 128 and 129: [128] These factors do not operate as a three-part test.

There are no particular findings under the three lines of inquiry that mandateparticular results, and it “is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case” . . .The balancing mandated by s. 24(2) is “qualitative in nature and therefore not capable of mathematical precision” . . .

Rather, the courtmust weigh its considerations under all three factors to determine whether, on balance and having regard to all the circumstances,admitting the impugned evidence would bring the administration of justice into disrepute in the long-term, from the perspective of areasonable person . . . [Citations omitted] [129] The Grant factors look to the public’s overall, long-term faith in the justice system . . .

Section 24(2) starts from the propositionthat damage has already been done to the public’s confidence in the administration of justice by the Charter violation or violations thatgave rise to the s. 24 analysis.

The Grant analysis concerns itself with whether further damage will be done by admitting the impugnedevidence . . . [citations omitted] Seriousness of the Charter-infringing state conduct [108] This first strand in the Grant analysis requires the court to consider the gravity of the state’s offending conduct and whether thecourt should dissociate itself from that conduct by excluding the evidence: Grant at paras. 72-73.

McLachlin C.J. and Charron J. for themajority in Grant discuss the seriousness of taking a statement from an accused after infringing his or her Charter rights: [93] The first inquiry focusses on whether admission of the evidence would harm the repute of justice by associating the courts withillegal police conduct. Police conduct in obtaining statements has long been strongly constrained.

The preservation of public confidencein the justice system requires that the police adhere to the Charter in obtaining statements from a detained accused. [94] The negative impact on the justice system of admitting evidence obtained through police misconduct varies with the seriousness of

the violation. The impression that courts condone serious police misconduct is more harmful to the repute of the justice system than the acceptance of minor or inadvertent slips. [ 109 ] Although the breach in this case was not technical or trivial, neither was it brazen, flagrant, abusive or egregious. Constable Phillips was a young and inexperienced police officer. As the Crown points out, Constable Phillips did address M.M.R.T.’s rights at the beginning of the interview. The interview was not a lengthy or aggressive grilling wherein M.M.R.T. was ground down by repeated accusations.

In fact, it was more in the nature of a conversation. Still, I would not characterize the breach of M.M.R.T.’s 10(

b) right as minor. [ 110 ] I do not find Constable Phillips’ failure to provide M.M.R.T. with his 10(

b) rights was intentional; therefore, I do not find the officer acted in bad faith. Nevertheless, the absence of bad faith does not equate to good faith or vice versa: R. v. Mandziak , 2014 BCCA 41 , para. 41 . In Mandziak , Madam Justice Garson for the B.C. Court of Appeal describes what is meant by good faith in para. 61: [61] To sum up, good faith connotes an honest and reasonably held belief. If the belief is honest, but not reasonably held, it cannot be said to constitute good faith. But it does not follow that it is therefore bad faith.

To constitute bad faith the actions must be knowingly or intentionally wrong. [ 111 ] I note that prior to interviewing M.M.R.T., Constable Phillips checked the police file to confirm M.M.R.T. had been given access to counsel at the time of his arrest. At the outset of the interview, Constable Phillips confirmed with M.M.R.T. he had an opportunity to speak to counsel with respect to Court File 951.

Upon reviewing M.M.R.T.’s video-recorded statement and hearing Constable Phillips’ evidence in the voir dire, I conclude Constable Phillips did act in good faith in taking M.M.R.T.’s statement on Court File 951 in the circumstances. Impact of the breach on the Charter - protected interests of the accused [ 112 ] The second strand of the Grant s. 24(2) analysis focuses on the seriousness of the state’s Charter -infringing conduct from the accused’s perspective. The court must examine the right against self-incrimination and the degree to which the s. 10 (

b) Charter infringement impacts upon or intrudes into those interests: Grant , paras. 76-78 . [ 113 ] When dealing with a confession, informing an accused of his right to silence can have a significant impact. The interests engaged in the case of a statement obtained in breach of the Charter include the s. 7 right to silence. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.

In Grant , McLachlin C.J. and Charron J. discuss the impact of taking a statement from an accused in breach of his or her Charter rights: [95] The second inquiry considers the extent to which the breach actually undermined the interests protected by the right infringed. Again, the potential to harm the repute of the justice system varies with the seriousness of the impingement on the individual’s protected interests. As noted, the right violated by unlawfully obtained statements is often the right to counsel under s. 10(b).

The failure to advise of the right to counsel undermines the detainee’s right to make a meaningful and informed choice whether to speak, the related right to silence, and, most fundamentally, the protection against testimonial self-incrimination. These rights protect the individual’s interest in liberty and autonomy. Violation of these fundamental rights tends to militate in favour of excluding the statement. [96] This said, particular circumstances may attenuate the impact of a Charter breach on the protected interests of the accused from whom a statement is obtained in breach of the Charter .

For instance, if an individual is clearly informed of his or her choice to speak to the police, but compliance with s. 10 (

b) was technically defective at either the informational or implementational stage, the impact on the liberty and autonomy interests of the accused in making an informed choice may be reduced. Likewise, when a statement is made spontaneously following a Charter breach, or in the exceptional circumstances where it can confidently be said that the statement in question would have been made notwithstanding the Charter breach . . . the impact of the breach on the accused’s protected interest in informed choice may be less.

Absent such circumstances, the analysis under this line of inquiry supports the general exclusion of statements taken in breach of the Charter . [Citation omitted] [ 114 ] In this case, Constable Phillips did inform M.M.R.T. of his right to silence but not to his right to counsel. I am not persuaded of the Crown’s submission that had he been afforded his 10 (

b) right to counsel, M.M.R.T. would have likely made a statement to Constable Phillips with respect to Court File 951 in any event. If he had been provided a reasonable opportunity to contact his own lawyer in this matter, he may not have provided the statement. He was young and impulsive and inexperienced in the criminal justice system. He seemed almost eager to respond to Constable Phillips’ inquiries with little regard to his own self-interest. I cannot say M.M.R.T. would not have benefited from sage advice from a lawyer with whom he had an established relationship. I note that after speaking to Mr.

Strimbold on November 2, 2016, M.M.R.T. maintained his right to silence for almost a year. As Justice Devlin states at para. 138, “. . . the jurisprudence makes it clear that s. 10 (

b) is a very important right, as it is the gateway to ensuring that accused persons understand their rights, including the right to remain silent, and that they need not incriminate themselves or participate in any police investigative interview. . .” [ 115 ] I find in all of the circumstances that the impact of the breach of M.M.R.T.’s 10 (

b) Charter rights was profound and militates in favour of exclusion. Society’s interest in the adjudication of the case on its merits [ 116 ] The third strand of the Grant analysis requires the court to consider “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion”: Grant at para. 79 . This involves assessing the reliability of the evidence and its importance to the Crown’s case.

The exclusion of reliable and relevant evidence may render the trial unfair from the public’s perspective, thus bringing the administration of justice into disrepute: Grant at para. 81 . McLaughlin C.J. and Charron J. discuss this concern at para. 97:

[97] The third inquiry focusses on the public interest in having the case tried fairly on its merits. This may lead to consideration of thereliability of the evidence. Just as involuntary confessions are suspect on grounds of reliability, so may, on occasion, be statements takenin contravention of the Charter. Detained by the police and without a lawyer, a suspect may make statements that are based more on amisconceived idea of how to get out of his or her predicament than on the truth.

This danger, where present, undercuts the argument thatthe illegally obtained statement is necessary for a trial of the merits. [117] In Harrison, (at paras 34 and 40), Chief Justice McLachlin cautions that when analyzing the third Grant factor the applicationsjudge must be careful not to allow the seriousness of the offence and the reliability of the evidence to overwhelm the s. 24(2) analysisbecause this would afford lesser Charter protection to those charged with more serious crimes.

While the public has a heightenedinterest in seeing a case adjudicated on its merits where the offence charged is serious, the public “also has a vital interest in having ajustice system that is above reproach, particularly where the penal stakes for the accused are high: Grant at para. 84; see also R. v.Reddy, 2010 BCCA 11 at para. 94. Sometimes, the importance of maintaining Charter standards outweighs the “price paid bysociety for an acquittal”: Harrison, para. 42.

Society has an interest in state actors consistently respecting Charter rights, regardless ofthe context: Brodie, para. 142. [118] As to society’s interest in adjudicating this case on its merits, while the statements M.M.R.T. made during his October 15, 2017interview with Constable Phillips are relevant to the charge against him, a trial of this case on its merits will proceed even if they areexcluded.

In my view the fact the Crown had set this matter for trial in February 2017, suggests the police had concluded itsinvestigation and, even without the accused’s statement, the Crown believed there was a substantial likelihood of conviction. ExcludingM.M.R.T.’s statement will not gut the Crown’s case.

Section 24(2) and statements of the accused [119] In Grant, the Supreme Court concluded that statements of an accused obtained following a Charter infringement will generallymilitate toward exclusion: [89] Statements by the accused engage the principle against self-incrimination, “one of the cornerstones of our criminal law” . . . [T]heprinciple against self-incrimination as “an overarching principle within our criminal justice system, from which a number of specificcommon law and Charter rules emanate, such as the confessions rule, and the right to silence”.

The principle also informs “morespecific procedural protections such as, for example, the right to counsel in s. 10(b), the right to non-compellability in s. 11(c), and theright to use immunity set out in s. 13”. Residual protection for the principle against self-incrimination is derived from s. 7. [Citationsomitted] [90] . . . is important to note at the outset that the common law confessions rule, quite apart from s. 24(2), provides a significantsafeguard against the improper use of a statement against its maker.

Where a statement is made to a recognized person in authority,regardless of whether its maker is detained at the time, it is inadmissible unless the Crown can establish beyond a reasonable doubt that itwas made voluntarily. Only if such a statement survives scrutiny under the confessions rule and is found to be voluntary, does the s.24(2) remedy of exclusion arise. Most commonly, this will occur because of added protections under s. 10(

b) of the Charter. [91] There is no absolute rule of exclusion of Charter-infringing statements under s. 24(2), as there is for involuntary confessions atcommon law. However, as a matter of practice, courts have tended to exclude statements obtained in breach of the Charter, on theground that admission on balance would bring the administration of justice into disrepute. [92] The three lines of inquiry described above support the presumptive general, although not automatic, exclusion of statementsobtained in breach of the Charter. . . . [98] In

summary, the heightened concern with proper police conduct in obtaining statements from suspects and the centrality of theprotected interests affected will in most cases favour exclusion of statements taken in breach of the Charter, while the third factor,obtaining a decision on the merits, may be attenuated by lack of reliability. This, together with the common law’s historic tendency totreat statements of the accused differently from other evidence, explains why such statements tend to be excluded under s. 24(2).

Conclusion on the s. 24(2) analysis [120] In this case, M.M.R.T. was a vulnerable young First Nations man. He was in custody on Court File 966, and it was with respectto that matter he sought and obtained legal advice from duty counsel on October 13, 2017. While M.M.R.T. was in custody on CourtFile 966, Constable Phillips seized the opportunity to take a statement from him on Court File 951, even though M.M.R.T. had: (

a) legalcounsel; (

b) entered a guilty plea eight months previously; (

c) maintained his right to silence for 11 ½ months; and (

d) a trial scheduledto commence in six weeks. [121] In my view, if the police were intending to interview M.M.R.T. at such a late stage in the proceedings, they ought to haveprovided him with a reasonable opportunity to consult with his own legal counsel beforehand. The breach of his 10(

b) rights underminedM.M.R.T.’s right to obtain legal advice to equip him with the information needed to preserve and exercise his rights. I find the repute ofthe administration of justice is best served by excluding M.M.R.T.’s October 15, 2017 statement to Constable Phillips. [122] The Crown asks that if the Court excludes M.M.R.T.’s statement as part of the Crown’s case in chief that it be permitted to holdit in reserve for cross-examination. [123] The Crown refers to the Supreme Court of Canada decision in R. v. Calder, (SCC), [1996] 1 SCR 660.

InCalder, the trial judge excluded the accused statement because he had not been informed of his right to counsel before his interview. The trial judge also refused the Crown’s subsequent application to use the previously excluded statement to impeach the accused'scredibility during cross-examination. The accused was acquitted of all charges and the Crown appealed.

[124] The Supreme Court considered whether a distinction should be drawn for the purposes of s. 24(2) where the Crown seeks toadmit the evidence for the limited purpose of impeaching the accused’s credibility on cross-examination. Sopinka J., for the majority,held that there is no meaningful distinction for purposes of admitting unconstitutionally obtained evidence under s. 24(2) of the Charterbetween evidence used to incriminate and evidence used to impeach an accused's testimony on cross- examination.

He states at para. 34: [34] The effect of destroying the credibility of an accused who takes the stand in his or her defence using evidence obtained from themouth of the accused in breach of his or her Charter rights will usually have the same effect as use of the same evidence when adducedby the Crown in its case in chief for the purpose of incrimination. [125] However, Sopinka J. conceded at para. 35 it might be possible in “very limited and “very special circumstances” for the Crownto succeed in having evidence admitted only for the purpose of cross-examination that would otherwise be excluded. [126] In R. v.

Cook, (SCC), [1998] 2 SCR 597, Justices Cory and Iacobucci, for the majority, stated: [76] It is not necessary to speculate what “special circumstances” would be required to allow the admission of evidence for a limitedpurpose that was not otherwise admissible. In our view those circumstances would be very rare indeed. In this case, there are no specialcircumstances which would justify such a finding.

Rather, we find that there should be no difference, for the purposes of decidingwhether to exclude the evidence under s. 24(2), between the admission of evidence generally and admission for the limited purpose ofchallenging the credibility of the accused. . . . [127] I glean from Calder and Cook that if a statement was obtained in violation of an accused’s s. 10(

b) Charter rights and it isexcluded from the trial pursuant to s. 24(2), it will generally be excluded for all purposes regardless of whether the Crown intends to relyon the statements to incriminate the accused or impeach his or her credibility. [128] Accordingly, I order M.M.R.T.’s October 15, 2017 statement to Constable Phillips excluded from evidence under s. 24(2) of theCharter for all purposes. “Judith Doulis” _____________________________ Judge J. T.

Doulis Provincial Court of British Columbia CORRIGENDUM - Released May 22, 2018 [1] In my decision filed on December 1, 2017, please note that paragraph [9] is incorrect and is hereby amended as follows: [9] Constable Wingfield effected M.M.R.T.’s arrest on November 2, 2016, at the [omitted for publication] in Burns Lake, B.C. Constable Wingfield went to the [omitted for publication] around 10:00 a.m. and spoke to [omitted for publication]. She escortedM.M.R.T. to her office so Constable Wingfield could arrest him in private. [2] My Reasons for Judgment are amended accordingly.