R. v. Leonard, 2020 NLSC 127

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Leonard , 2020 NLSC 127 Date : September 22, 2020 Docket : 201801G2806 Her Majesty The Queen v. Daniel Leonard Restriction on Publication: Pursuant to subsection 648(1) (and subsection 645(5)) of the Criminal Code , no information regarding any portion of the trial at which the jury was not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

AND Restriction on Publication: By court order made under subsection 486.31 and 486.5(2) of the Criminal Code , the identity of the undercover operators or cover persons or any information that could disclose their identity shall not be published, broadcast, or transmitted in any manner. Before: Justice Deborah J. Paquette Place of Hearing: St. John’s, Newfoundland and Labrador

Dates of Hearing: May 9, 10, 15, 16, 2019; June 5, 18, 19, 21, 25, 2019; July 25, 26, 2019; July 16, 2020 Appearances: Sheldon B. J. Steeves and Erin E. Matthews Appearing on behalf of the Crown Robert W. Buckingham and Robert B. Hoskins Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Pike, 2017 NLTD(G) 41; R. v. Oickle, 2000 SCC 38; R. v. Whittle, (SCC), [1994] 2S.C.R. 914; R. v. Lambert, 2018 NLCA 39; R. v. Spencer, 2007 SCC 11; R. v. Rothman, (SCC), [1981] 1 S.C.R. 640; R.v. Singh, 2007 SCC 48; R. v. Newman, 2011 NLTD(G) 92; R. v. Hebert, (SCC), [1990] 2 S.C.R. 151; R. v.

Luong, 2000ABCA 301; R. v. Sinclair, 2010 SCC 35; R. v. McCrimmon, 2010 SCC 36; R. v. Willier, 2010 SCC 37; R. v. Black, (SCC), [1989] 2 S.C.R. 138; R. v. Singh, 2013 ONCA 750; R. v. Hart, 2014 SCC 52; R. v. Grant, 2009 SCC 32; R. v. Badgerow, 2008ONCA 605; R. v. O’Flaherty (2015), 372 Nfld. & P.E.I.R. 243, 1158 A.P.R. 243 (N.L. Prov. Ct.); R. v. Pappas, 2012 ABCA 221; R. v.Bhander, 2012 BCCA 441; R. v. Burlingham, (SCC), [1995] 2 S.C.R. 206; R. v. Reid, 2013 NLTD(G) 64; R. v. McKane(1987), (ON CA), 21 O.A.C. 73, 2 W.C.B. (2d) 98 STATUTES CONSIDERED: Criminal Code, R.S.C., 1985, c.

C-46; Canadian Charter of Rights and Freedoms,

Part I of theConstitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 REASONS FOR JUDGMENT Paquette, J.: INTRODUCTION [1] Daniel Leonard was arrested on 28 September 2016 for his alleged participation in the murder of Dale Porter on 29 June 2014.Following his arrest the police obtained a video and audio recorded statement and associated hand-written document from Mr. Leonard(collectively, the “Statement”). At issue in this proceeding is the voluntariness of the Statement and whether it was obtained in violationof his rights as guaranteed by sections 7, 10(b), and 12 of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act,1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. Mr. Leonard seeks the exclusion of the Statement. BACKGROUND [2] Mr. Leonard learned from a telephone call with his mother in the early afternoon of 28 September 2016 that the police hadarrived in the neighbourhood to arrest him. He spoke by phone to one of the officers to say that he was turning himself in. He recountedthat the officer said, “all right, you just come on up … and we’ll arrest you”. [3] Mr. Leonard testified that he had been drinking and doing drugs (cocaine and Percocet) the night before and only slept abouttwo hours.

He described using Percocet for “a good few” years, taking anywhere between 15 and 20 per day. They gave him a buzz andmade him feel mellow, but he noted if you take too many, “You can get sick and pass out.” He said that the cocaine helped himfunction with little sleep. [4] He recounted that before turning himself in, he snorted three and popped seven Percocet at a friend’s house, not a normal wayto take the drugs, but he did not want to throw them away. He recalled that he got pretty high, estimating that he would be at nine on ascale of one to ten. [5] Cst.

Bourne was the officer assigned to record the arrest and “takedown,” and for this purpose, had been provided the “arrestpackage.” He and Cpl. Norman were also charged with Mr. Leonard’s transportation: first to the Royal Canadian Mounted Police(RCMP) Headquarters in St. John’s and then to Harbour Grace where the charges would be laid the following day. Mr. Leonard arrivedat around 3:00 p.m., was placed under arrest with his wrists handcuffed behind him. Cpl. Norman recounted that a family memberbrought a phone out to the street from Mr. Leonard’s parents’ house saying that a lawyer wanted to speak with him. Sgt.

Noel, also atthe scene, testified that he spoke with Mr. Leonard’s legal counsel and explained to him that his client had just been arrested. Herecalled that legal counsel asked to speak with him and told the officer that privacy did not matter at that point. Sgt. Noel held the phoneup to Mr. Leonard’s ear and a brief conversation ensued. He said that Mr. Leonard had been offered privacy in the police car with a cell

phone, but he had declined. [ 6 ] After the telephone call, Mr. Leonard was escorted to the police vehicle and, once inside, was read his Charter rights and police caution. Cpl. Norman stated that he advised Mr. Leonard that he could talk to a lawyer whenever he wanted and, in particular, he was advised that they were taking him to police headquarters where he could contact legal counsel. [ 7 ] Cpl. Norman said that Mr. Leonard eventually notified him at 3:35 p.m. that he wanted to talk with his lawyer and gave him a business card containing the lawyer’s cell phone number.

By 4:05 p.m. he was speaking with his lawyers in a private room, with the call ending at 4:09 p.m. [ 8 ] Cpl. Norman recalled Mr. Leonard saying that he was hungry a couple of times before departing for Harbour Grace, and a hot meal was ordered for him to be ready upon his arrival at the Detachment shortly after 6:00 p.m. [ 9 ] Soon after being placed in his cell, a guard notified Cst. Bourne that Mr. Leonard had mentioned that he needed some prescription medication. Cst. Bourne took him to the hospital where he was seen by a doctor, returning to the Detachment at 8:31 p.m. Cst.

Bourne had the prescriptions (sleeping and stomach medication) filled at the local pharmacy and testified that throughout the time he spent with Mr. Leonard that day, he did not have concerns with his sobriety or comprehension. [ 10 ] Cst. Miller and Cst. Gosse were the investigative interviewers. Cst. Miller said that he learned during the course of the day that Mr. Leonard had been drinking the night before and had been up most of the night and all that day. As it turned out, Mr. Leonard never received the planned meal due to the interruption of the hospital visit.

The officers, however, frequently offered him food and drink during the time they were together and, while he initially declined, he eventually agreed to a sandwich. The investigative interview started at around 8:49 p.m. on September 28, 2016 and ended at 1:29 a.m. the following day. [ 11 ] Cst. Miller said his role was to ensure that Mr. Leonard’s Charter rights were “covered off,” that he was given the police caution, and that it was pointed out to him that the investigative interview would be audio and video recorded.

He explained that prior to the interview, he would have had a brief meeting with whoever had contact with Mr. Leonard during the arrest to ensure that the rights to counsel and police caution were given. As a result, he was satisfied that this had all been taken care of by the arresting team. Cst. Miller said that he was also concerned that Mr. Leonard’s basic needs, such as bathroom breaks, food, water, etc., were met. Once this was done, Cst. Gosse was to come in and do some “rapport building” and get more into the “meat of the interview.” [ 12 ] Cst. Miller explained that Mr.

Leonard advised him that he spoke with legal counsel and he told the officer that he wasn’t going to say anything to him, which the officer said indicated to him that Mr. Leonard understood his right not to speak to the police. The following excerpts from the investigative interview (pages 4-7, 11-13, 15-19, and 21-24 of the transcript) are advanced in relation to both the voluntariness of Mr. Leonard’s Statement and its constitutionality under the Charter : Cst. Miller: … You need to understand the jeopardy that you’re in.

You need to underch…stand the offence that you’re arrested for and the offence that you’re going to be charged with, because tomorrow you’ll go before a judge and you’re going to be formally charged with second degree murder. … [U]nder the laws of Canada you get to speak to counsel, so you’ve been arrested, or if you’re detained, in this case you’re arrested, you get to speak to counsel. So you’ve…you’ve spoken to counsel twice. Unless something changes, which is not going to, ah, you would…you would possibly get another, ah, chance to speak to counsel.

Because nothing is going to change, unless something pops up by…I don’t foresee now, you, you won’t get another chance to speak with counsel, so you’ve exercised that right, that’s done, and it’s none of my business what you guys talked about, so that’s what’s going to happen there.

So you’re…you’re under arrest, we control your movements, ah, while you’re in our…in our custody and, ah, I’d just like to get that straightened out right away, because people sometimes ask as we’re going through, you know, saying things like I want to speak to counsel and stuff like that, so that’s…that’s where we’re at with that, right?” So like I said to you earlier as soon as you walked in, there’s no bullshit with me. I’m not here to trick you.

I’m not, ah, I pride myself on being one of those cops that can do his job without being deceitful and, ah, it doesn’t get me anywhere by being deceitful because you’re a smart guy. You’re going to see through it for one. Ah, if I’m trying to take advantage of you or I’m trying to trick you, you’re going to see through it. So we’ve got a lot of stuff to go over, ah, while you’re here in this interview room with me tonight. … Everything in here is audio and video recorded, and anything you do say could be used against you as evidence like the police officers told you earlier.

That doesn’t mean that you can’t listen, ah, and what that means, and what I mean by that is I told you you’re, you know, you’re…you’re a smart guy obviously and, ah, smart people listen. Smart people want to learn what other people know about them, and this investigation has been going on since June 29, 2014, so a long time. … Okay, so you understand everything with regards to, you know, it’s very, very important, and I can’t stress enough, that you understand your rights.

And I know you spok…spoke to counsel twice, and that’s excellent that you did that and, ah, I just want to make sure that everything is clear to you, um, and if you have any questions at all, if someone said something to you earlier that caught you off guard and you didn’t quite understand, I want you to know that you can ask me and I’ll … I’ll clarify as best I can ‘cause it’s…this is a…you know, I…I get that you understand the jeopardy that you’re in and the trouble that you’re in, and right now, at this moment, five minutes ago I told you that you’re going to be formally charged with second degree murder, so I dropped a bomb on you basically 'cause earlier today you were under arrest for second degree murder.

That’s a big difference than being charged with second degree murder. That’s…that’s huge, right? So I understand I dropped a bomb on you Daniel and you need time to kind of process that in your head, but…so that’s what’s going to happen tomorrow. … … Cst. Miller: … So if you have any questions, you stop me at any time and say Bill, I got a question about something you said earlier or another question you think of. You know, I’m here, because no one else is here for you now. …

… Cst. Miller: … It’s, ah, there’s a lot going on here right now, and I’ve laid a bomb on you, and I appreciate har…how hard it is to, ah, process what I’ve…what I’m telling you, ah, 'cause I’ve just changed your life forever. … [Y]ou’ve got a big decision to make today, um, with how you’re going to handle things that are, ah, told to you. … So basically you’re on your own right now, so you’ve…you know, this is the biggest day of your life. You know, I know you’ve got kids and, ah, you know when they’re born that’s…that’s a big day and stuff but, ah, right now, today, this is the biggest day of your life.

Make no bones about it, September 28, 2016 is when your life changed forever…. … Mr. Leonard: I don’t have nothing to say. … Cst. Miller: … We all make mistakes. Nobody is perfect. Nobody is perfect. If you were in the wrong place at the wrong time, you need to be truthful about it. But by not telling the truthful story, you’re looking dirty on it. … 'Cause you got a conscience…. And you can wait until I show you a lot of things, but it’s best off you just do it on your own without having to be convinced . … The train is coming down the tracks Daniel, and you can either get on it or it can run you over.

You have to decide . I told you that you’re alone in this room. No one’s here to help you. You got to look after yourself. … Is there anything you need from me? Are the people you’re close to going to support you tomorrow when everything comes out and everybody knows and it’s in the news? What would your daughter think? How will her life change? What will life be like for her now? There’s not going to be any hiding it after tomorrow. Tonight is different but tomorrow the cat’s out of the bag. It’s important that we know your side of the story, because we have one side of the story….

Do you understand what I’m saying? Can I get something for you Daniel? Get you some water? Are you hungry? Would you like something to eat? Mr. Leonard: No, I just go back to my cell, that’s all. Cst. Miller: Okay. Well, like I said to you earlier when we went through… Mr. Leonard: I’d just rather go back to my cell now. Cst. Miller: Yeah. Here’s what I’ll say about that, okay? We’re not going to put you back in your cell. You’re under arrest for second degree murder, so we control your movements in this building, right? Mr.Leonard: Yeah. … Mr. Leonard: Tired. Cst. Miller: From what? Mr. Leonard: Just tired. Cst.

Miller: Me too. What’s making you tired?

Mr. Leonard: Long night. Cst. Miller: Last night? What were you doing? Mr. Leonard: Drinking. Cst. Miller: Were you? What time did you stop? Mr. Leonard: I don’t remember. Cst. Miller: ….I’ve told you a little bit, I certainly, ah, haven’t scratched the surface with you but I just wanted to give you the chance, you know? Sometimes cops sit down and they interview people for hours and hours and hours and that, you know, I don’t know how long this will last, but it won’t last forever. Sooner or later this interview will end whether you talk or you don’t talk.

It don’t matter, right? … Like I said to you earlier man, this is the biggest day of your life. You can’t sit back and be a spectator. You have to get involved with what’s happening to you. You’re a grown man. No one’s here to do it for you. I mean, I’m not going to be here forever. You know what I mean? Like, I… I’m not going to be here forever to let you tell your side of the story. You know, this…it’s tonight. Tomorrow you go to court. Tomorrow they lay a second degree murder charge on you. It’s huge. Huge. You can’t just sit back and let that happen.

If you have something that we need to know, [then] we need to know it. … Only you can. … I’m just looking for truth. People deserve truth. … You need to be honest. You need to get out in front of it. I told you this is the biggest day of your life right now. It’s a huge day. You can’t sit back and be a spectator in all this. You have to get involved. You have to get involved. For your family you have to get involved. It’s time. It’s time. There’s no point anymore. … Tell me how it all is getting processed in your head. I’m not…I’m not convinced that you know the gravity of what’s going on. I truly don’t know.

Do you understand the trouble you’re in? Do you have any questions you want to ask me? Like I told you earlier, if there’s any questions you have man, I’ll answer them if I can, truly. If I can’t answer them I’ll tell you I can’t. Right? I’ll do my best. You just got to be present. Right? … You got to participate in what’s happening to you. Can I get you something? Would you like some water? Sandwich? Mr. Leonard: No Cst. Miller: Nothing at all? I got to step out and grab a glass of water. My throat is getting dry, right? Do you need to use the washroom or anything? If you do, you make sure to tell me, okay? Mr.

Leonard: No, I’m good. Cst. Miller: Okay. Just give me a few minutes here to grab a glass of water. [ 13 ] Cst. Gosse enters the room and engages in what he described as rapport building (pages 25-27, 32, 34 and 37 of the transcript): Cst. Gosse: Daniel? Hey, buddy. Peter. Ah, you hungry? Get you some grub? You sure? You’ve been here a long time. You haven’t had nothing to eat, have you? I’ll get you some grub man. Mr. Leonard: No, I’m good. Cst. Gosse: Seriously? Mr. Leonard: Yeah. …

Cst. Gosse: You got to eat man. Mr. Leonard: I’m good b’y. … Mr. Leonard: I’m not hungry man. Cst. Gosse: But I thought someone said you were hungry. You wanted a sandwich or something. Mr. Leonard: Yeah, earlier I was. I’m not hungry now. … Cst. Gosse: You doing all right? Mr. Leonard: As good as it gets I guess. … Cst. Gosse: Big night. Bill just stepped out there for a few minutes, get a few things together. Come in and fill the air, have a little chat with you, that’s all. Nothing to do with what’s going on, just…just chat with you man, that’s all.

But I’m a police officer, you know that obviously if I’m in here, right? Mr. Leonard: Yeah. … Cst. Gosse: You got a lot on your plate man. We’re not hard to get along with Daniel, right? I just…I want to throw that out to you, right? I mean, you’re a man and, ah, you’re mature and you’re…you been around the block, right? And I’m sure you know the difference between right and wrong. I’m not here to lecture you, not a bit, but I know you spoke to your lawyers today, and your lawyers are very smart people, right?

And I’m sure they gave you great advice, but you’re the type of person that can sit here and smart people listen and make their own decision on what they want to do, and I can tell you, we’re all here to listen. I’ll just throw that to you, okay? … … Cst. Gosse: What’s on your mind Daniel? You’re the most important person in this room tonight (unintel) Daniel, right? And all we do, like Bill explained to you a few minutes ago, is all we do is look for the truth. … …

Mr. Leonard: Tired Cst. Gosse: Tired. Yeah, I’m tired too. But you understand we got a job to do Daniel, right? Like same as you do in Bull Arm. Mr. Leonard: Yeah. Cst. Gosse: You got a job to do on the structure or whatever you got to build you got to finish it. We got a job to do to find out the truth, and we don’t stop until we find it. Your fourteen year old, a girl or a guy? [ 14 ] Cst. Gosse and Mr. Leonard also talk about his interest in long-haul trucking. The police officer reiterates that his “job” was to “have a chat.” “Everybody gets, ah, different tasks to do.

So I had the pleasure of coming out and meeting you.” (page 46 of the transcript). Mr. Leonard repeats a couple of times that he is tired and that he had been out partying the night before. The officer asked who he was with, to which Mr. Leonard replies that he is not telling him any names. Mr. Leonard reiterates his tiredness (page 47 of the transcript): Cst. Gosse: I’m only trying to shoot the shit with you man. Mr. Leonard: I know. I’m shooting it with you b’y. I’m just tired, aggravated. Cst. Gosse: Why are you aggravated? Mr. Leonard: I’m just tired.

That’s usually what happens when you gets tired, isn’t it? … Mr. Leonard: I’m just tired. It was a fuckin’ long night and very…no…very little sleep. (Unintel) myself. [ 15 ] Mr. Leonard asks to have a fresh sandwich made for him, noting that the meal ordered for him was “cold now I’d say” (page 48 of the transcript). [ 16 ] Cst. Gosse asks if he wants to take a cigarette break, and Mr. Leonard accepts the invitation. Cst. Nippard joins them, and they bring the audio recorder along, in the presence of Mr. Leonard. [ 17 ] There was some light conversation during the break and Mr.

Leonard expressed his amusement when Cst. Gosse gave him some cardboard to stand on because he was not wearing shoes. He invited the officer to take his shoes off and try it. Cst. Gosse responds that he has done that very thing many times. Mr. Leonard asks about the buffalo head mounted on the wall at the Harbour Grace Detachment. They all laugh when Cst. Gosse says it may have been shot on the Witless Bay Line. [ 18 ] Cst. Nippard also states the following during the cigarette break: “You don’t need to be spending the rest of your days in jail. You don’t need that.

Man, it is getting chilly, isn’t it?” (page 60 of the transcript). [ 19 ] Over the course of the investigative interview, Cst. Nippard took two cigarette breaks with Mr. Leonard, and Cst. Gosse was present for both. He testified that he did not observe any health issues or otherwise see any signs that Mr. Leonard was under the influence of drugs or alcohol. He described Mr. Leonard as having a gentleman’s demeanor throughout the evening. Cst.

Miller testified that because he would be concerned to interview anyone under the influence of intoxicating substances, he did his own assessment based on his experience as a police officer in dealing with people who take drugs. He testified that during the four hours he sat with Mr. Leonard, he was satisfied that he was not impaired by drugs or alcohol. [ 20 ] In the course of the investigative interview, Cst. Miller talks to Mr. Leonard about his father, who had also been arrested, telling him that they have a video in which his father states what he would tell Daniel to do.

While the officers are trying to get this video clip up and running, Mr. Leonard contributes by locating the appropriate electronic jack for them. [ 21 ] Cst. Miller explained that Mr. Leonard, Sr.’s segment was part of a PowerPoint presentation designed to let him know the evidence that the police had assembled, thereby giving him an opportunity to make an informed choice about whether he wanted to say anything to the police or not. He said it was structured as a puzzle including components of the forensics, pathology, search warrants, surveillance, cell phones, witnesses, informants, wiretaps, timelines, etc.

[ 22 ] The police officers interjected the presentation of evidence with dialogue, including (pages 92-98 of the transcript): Cst. Miller: … We got an awful lot of stuff. We don’t have all night to show you everything we got, ah, but you know, we like to show you enough, because this is your life, and this is your life we’re dealing with. Not my life. I get to go home tonight and I get to lay next to my wife. You don’t get to do that, right? So this is your life.

It has nothing to do with me, um, and, ah, you know, it’s…you’ve … you’ve got a huge decision to make, and I appreciate that you do but we…it’s important for us to show you that, ah, you know, it’s in your best interest basically, right? So… Cst. Gosse: That’s what we’re doing, ah, Daniel, is try to give you some…some information to hopefully make you make an informed decision. … Cst. Miller: There’s a lot going on in your head right now. What are you thinking? And I mean, like I said to you before, this is…is just a little bit of what we have, right? Just enough to show you that you’re done on this. You’re done.

And I mean, we can show you some more. … Cst. Gosse: We’re just looking for the truth Daniel. That’s all we’re doing is looking for the truth. We haven’t told you one lie tonight since we’ve been here. We’re just looking for the truth and, I mean, we’re not making this stuff up Daniel, right? We’re looking for the truth. We need to know your involvement that night. You need to tell us your involvement that night. Cst.

Miller: And we show you…we’ll bring that, ah, video of your father back in, of him getting interviewed earlier tonight. …And I can’t put words in your mouth, but I think you know that you’re better off telling the truth because you’re in deep. … Cst. Miller: You need to think about you. You got kids to think about. Cst. Gosse: You want to protect Daniel LEONARD and your family and your … be home with your kids? … Cst. Gosse: You need to pick where your loyalty is. You want to go home and see your fourteen year old and your seven and your six month old sometime soon? … Your choice. This is real.

This is here, this is now, and you need to get in front of it. You need to get on the train or do you want to get flattened by it? That’s your choice. You know what happened that night, and you need to come clean with it. Right? This is not…this is real Daniel. This is as real as it gets. Cst. Miller: It’s like this Daniel. You started off with a bogus story with me earlier tonight. I told you I won’t lie to you tonight and I expect the same in return, respect and dignity, and that’s what you guys are all about, right? Loyalty, respect, dignity. What you need to do is take a deep breath. Listen.

Take a deep breath and get it out. It’s going to be like ripping off a band-aid. You need to get this off your chest before it fuckin’ kills you. You understand? Stress will kill you man. It will. And you’re already in for a penny, in for a pound. … You need to tell us what happened. Simple as that. Just get it out. Start at the beginning. Let it roll. Show you got courage. … Cst. Gosse: That’s Al talking about you. He’s telling you … you can’t lick a five sick … five cent stamp. [ 23 ] Mr. Leonard eventually provides the Statement to the police. [ 24 ] Cst. Gosse asked Mr.

Leonard if he would do a re-enactment of the interaction but he declined. When the investigative interview was over, Mr. Leonard asks: “Yeah, what happens now? Where do I go to stay at tonight?” (page 136 of the transcript). Cst. Gosse explains he will stay at the Detachment and be taken to court in the morning: “beyond that I don’t know what’ll happen to you. Um, it’ll be up to the judge I guess.” (page 136 of transcript).

[ 25 ] A proper understanding of the conduct of the investigative interview must convey that the video recording revealed that both police officers frequently made physical contact with Mr. Leonard during the course of their questioning. Cst. Miller explained that he is an extrovert and said that when Mr. Leonard shook his hand at the beginning of the investigative interview, he was satisfied that this constituted implicit consent to further touching. The officer took the view that if Mr. Leonard had a problem with being touched, he could have stated his objection. [ 26 ] Cst.

Miller is seen changing the position of Mr. Leonard’s chair while he is on a cigarette break. The officer explained that he did this so that he was in Mr. Leonard’s “eye-line” which would enable him to engage with him better. The officer can be seen leaning forward to be closer to Mr. Leonard and tapping him on the knee while saying, “The train is coming down the tracks, Daniel, and you can either get on it or it can run you over. You have to decide.” He places his left hand on Mr. Leonard’s right knee adding: “I told you that you’re alone in this room. No one’s here to help you.

You got to look after yourself.” [ 27 ] Cst. Miller then taps him again and the video recording also reveals the officer touching him on the knee with a closed fist. At one point in the video recording, Mr. Leonard is observed moving his chair backward toward the wall. [ 28 ] Both officers can be observed directing their questions with their upper bodies leaning toward Mr. Leonard. Cst. Miller explained that because Mr.

Leonard was prepared to speak with them about matters that had been hanging over his head for the last two years, “basic human decency” compelled him to “console” him “in some way.” He described the touching as both a gesture of empathy and a strategy to keep Mr. Leonard engaged in the conversation. He said that he did not consider Mr. Leonard to be either vulnerable or fearful. [ 29 ] The officers appeared to work in tandem in their physical interaction with Mr. Leonard. Examples include Cst. Miller touching Mr. Leonard’s knee and Cst. Gosse touching his left shoulder. Mr.

Leonard is tapped on the shoulder while being asked questions. At one point during the questioning, Mr. Leonard puts his head on the table. Cst. Miller places his hand in the area of Mr. Leonard’s upper thigh and lower quad for about 40 seconds, followed by Cst. Gosse reaching out and also tapping him on the shoulder. [ 30 ] The first officer that Mr. Leonard sees the next day is Cst. Nippard, who takes him back to the interview room. He asked Mr.

Leonard at around 9:30 a.m. if he wanted to participate in a re-enactment which had been raised the night before, saying that they had time to go to North River before court. By 9:49 a.m., Mr. Leonard was speaking with his lawyers in a private room at the Detachment and told Cst. Nippard that he would not participate in the re-enactment as per counsel’s advice. [ 31 ] Mr. Leonard testified in the voir dire.

His testimony was inconsistent because he recalled certain matters clearly, initially saying that he remembered other items but, on further questioning, qualified his evidence by explaining that, in fact, his memory had really only been triggered by watching the video and audio recorded transcript. He explained his lapse in memory on the quantity of Percocet taken on an empty stomach, combined with the drinking and partying the night before. Mr. Leonard also said that he was in a serious car accident in 1996 and suffered a serious head injury, which he said also affects his memory.

He testified that he had completed Grade 8 but had some learning disabilities that still impact him. [ 32 ] Mr. Leonard recalled that he was arrested by Cst. Bourne and Cpl. Norman and believed that he was told he was being arrested for the murder of Mr. Dale Porter. On cross-examination, Mr. Leonard testified that he did not remember being told in the police car the reason he was being arrested. He said that he did not remember being told that he was being taken to Harbour Grace. [ 33 ] He also testified that he did not remember being told that arrangements were being made for him to speak with a lawyer.

He had no recollection whatsoever of the telephone call with legal counsel at the time of his arrest and only learned of the call when he read the transcript. He also did not remember his call with legal counsel at the RCMP Headquarters. [ 34 ] He remembered being placed in the cell in Harbour Grace and that there was a cellmate there. He initially recalled being taken to the hospital to get his sleeping and stomach pills, but later stated that he knew this only from the transcript.

He said that when he went into the interrogation room, there was a police officer there and they shook hands and then started talking: “I’m so and so and I’m Daniel, nice to meet you; that is it.” He estimated that at the start of the interview he was “pretty impaired”, probably seven or six out of ten, and that he did not understand what was going on. By the time he went out for a cigarette break, he estimated his intoxication as a “three or a four.” Mr. Leonard said that he started remembering things during the course of the evening toward the end, because by then he was sobering up.

He never told the police that he had taken ten Percocet. [ 35 ] Mr. Leonard described Cst. Miller having one leg in between his leg, which made him feel very uncomfortable, and Cst. Gosse smacking him on his back. However, he testified in cross-examination that before seeing the video he did not remember the police officers’ physical contact but “assumed” he felt very uncomfortable with it. [ 36 ] Indeed, Mr.

Leonard said that he did not remember anything about the interrogation, really, and had no independent memory of being read his right to remain silent and his right to legal counsel on arrest and no memory of the drive to Harbour Grace. Mr. Leonard said that he remembered Cst. Miller telling him he was going to “drop a bomb” on him only from the transcript of the investigative interview. He said that he could not remember being told that the police controlled his movements in the building, and he did not remember asking to go back to the cell.

He said that he could not remember anything at all about the PowerPoint presentation or listening to the tape of his father or Mr. Potter. He had no memory of what he said or wrote during the investigative interview. [ 37 ] Mr. Leonard recalled having a sandwich during the interrogation. He said that he didn’t want it but was encouraged to eat: “I was starving. I had two bites out of it. I am sure I told them that I didn’t want anything to eat at one point in time.” When asked about his meal preference he remembered telling Cst. Bourne “no onions, no onions, no greens”.

When asked how he could remember this detail, but so little else, Mr. Leonard explained: “Well, I haven’t eaten since Monday and it was food so I was hungry.” Mr. Leonard said on cross-examination that he only remembered “bits and pieces” of the interview. [ 38 ] He recalled being asked to engage in a re-enactment and said, no, and confirmed this again in the morning after speaking with his legal counsel.

[39] Mr. Leonard testified that it was probably two days after his arrest that he started to detox and needed to go to the hospital toaddress the symptoms of sweating, diarrhea, throwing up, and feeling very sick. He could not recall the number of visits to the hospitalhe made throughout the detoxification process. [40] This conforms to Cst. Bourne’s evidence that he escorted Mr. Leonard to the hospital in the days following the arrest. Heobserved him going through detox, which he recognized from observations of a drug user going through this process.

The officer explained that he learned from that experience that opiate withdrawal starts off with a very minimum amount of physiologicalimpact, and after a couple of days, it starts to peak. He testified that this condition was not visible on the visit to the hospital onSeptember 28th. legal principles Voluntariness of Statement [41] The Crown must establish beyond a reasonable doubt that Mr. Leonard’s Statement to the police was voluntary. [42] Burrage J. in R. v.

Pike, 2017 NLTD(G) 41, reviewed the principles to be considered in assessing the voluntariness ofstatements given to the police by detainees, citing the Supreme Court of Canada in R. v. Oickle, 2000 SCC 38, at paragraphs 51-53: 51 Overall, the analysis under the confessions rule is contextual and fact specific. In order to begin that contextual analysis anappreciation of the suspect is first required.

The court must strive to understand the circumstances surrounding the confession in order toascertain whether there is a reasonable doubt as to its voluntariness (Oickle, at para. 71). 52 … The strength of mind and will of the accused, the influence of custody or its surroundings, the effect of questions or ofconversation, all call for delicacy in appreciation of the part they have played behind the admission, and to enable a Court to decidewhether what was said was freely and voluntarily said, that is, was free from the influence of hope or fear aroused by them. 53 In applying the Oickle test the court must be ever mindful of the twin goals of the confessions rule, to protect the rights of theaccused without unduly limiting society’s need to investigate and solve crimes (Oickle, at para. 33). [43] Oickle analyzed oppressive tactics at paragraphs 58-61: 58 There was much debate among the parties, interveners, and courts below over the relevance of “oppression” to the confessionsrule.

Oppression clearly has the potential to produce false confessions. If the police create conditions distasteful enough, it should be nosurprise that the suspect would make a stress-compliant confession to escape those conditions. Alternately, oppressive circumstancescould overbear the suspect’s will to the point that he or she comes to doubt his or her own memory, believes the relentless accusationsmade by the police, and gives an induced confession. 59 A compelling example of oppression comes from the Ontario Court of Appeal’s recent decision in R. v. Hoilett (1999), (ON CA), 136 C.C.C. (3d) 449 (Ont. C.A.).

The accused, charged with sexual assault, was arrested at 11:25 p.m. whileunder the influence of crack cocaine and alcohol. After two hours in a cell, two officers removed his clothes for forensic testing. He wasleft naked in a cold cell containing only a metal bunk to sit on. The bunk was so cold he had to stand up. One and one-half hours later, hewas provided with some light clothes, but no underwear and ill-fitting shoes. Shortly thereafter, at about 3:00 a.m., he was awakened forthe purpose of interviewing. In the course of the interrogation, the accused nodded off to sleep at least five times.

He requested warmerclothes and a tissue to wipe his nose, both of which were refused. While he admitted knowing that he did not have to talk, and that theofficers had made no explicit threats or promises, he hoped that if he talked to the police they would give him some warm clothes andcease the interrogation. 60 Under these circumstances, it is no surprise that the Court of Appeal concluded the statement was involuntary. Under inhumaneconditions, one can hardly be surprised if a suspect confesses purely out of a desire to escape those conditions. Such a confession is notvoluntary.

For similar examples of oppressive circumstances, see R. v. Owen (1983), (NS CA), 4 C.C.C. (3d) 538(N.S. C.A.); R. v. Serack (1973), (BC SC), [1974] 2 W.W.R. 377 (B.C. S.C.). Without trying to indicate all thefactors that can create an atmosphere of oppression, such factors include depriving the suspect of food, clothing, water, sleep, or medicalattention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time. 61 A final possible source of oppressive conditions is the police use of non-existent evidence. As the discussion of false confessions,

supra, revealed, this ploy is very dangerous: see Ofshe & Leo (1997a), supra, at pp. 1040-41; Ofshe & Leo (1997), supra, at p. 202. Theuse of false evidence is often crucial in convincing the suspect that protestations of innocence, even if true, are futile. I do not meanto suggest in any way that, standing alone, confronting the suspect with inadmissible or even fabricated evidence is necessarily grounds forexcluding a statement.

However, when combined with other factors, it is certainly a relevant consideration in determining on voir direwhether a confession was voluntary. [44] Legal analysis of the operating-mind factor is addressed in Oickle (at paragraphs 63-64) reiterating Sopinka J. in R. v. Whittle, (SCC), [1994] 2 S.C.R. 914: 63 This Court recently addressed this aspect of the confessions rule in Whittle, supra, and I need not repeat that exercise here.

Brieflystated, Sopinka J. explained that the operating mind requirement “does not imply a higher degree of awareness than knowledge of whatthe accused is saying and that he is saying it to police officers who can use it to his detriment” (p. 936). I agree, and would simply addthat, like oppression, the operating mind doctrine should not be understood as a discrete inquiry completely divorced from the rest of theconfessions rule.

Indeed, in his reasons in Horvath, supra, at p. 408, Spence J. perceived the operating mind doctrine as but oneapplication of the broader principle of voluntariness: statements are inadmissible if they are “not voluntary in the ordinary English senseof the word because they were induced by other circumstances such as existed in the present case”. 64 Similarly, in concluding that the confessions rule cannot be limited to the negative inquiry of whether there were any explicit threatsor promises, Beetz J. offered the following explanation of the rule, at pp. 424-25: Furthermore, the principle which inspires the rule remains a positive one; it is the principle of voluntariness.

The principlealways governs and may justify an extension of the rule to situations where involuntariness has been caused otherwise than by promises,threats, hope or fear, if it is felt that other causes are as coercive as promises or threats, hope or fear and serious enough to bring theprinciple into play. As these passages make clear, the operating mind doctrine is just one application of the general rule that involuntary confessions areinadmissible. [45] R. v. Lambert, 2018 NLCA 39, at paragraph 19, characterizes the requisite operating mind of a detainee in providing astatement to the police: 19 In R. v.

Singh, 2007 SCC 48, [2007] 3 S.C.R. 405 (S.C.C.) , Charron J., for the majority, in the context of addressing the operationof

section 7 of the Charter, discussed the relationship among Charter rights that are concerned with the right to silence: [25] ... (The symmetry between the confessions rule and related Charter rights in so far as the requisite mental capacity isconcerned was previously recognized in R. v.

Whittle, (SCC), [1994] 2 S.C.R. 914, where the Court held that theoperating mind test at common law fully answers the mental capacity requirement for an effective waiver of the right to counsel and themental capacity necessary to make an active choice with respect to the right to silence.) ... [46] In Lambert, the trial judge had found that the accused did not have an operating mind because he had been injured in a caraccident, perhaps sustaining a concussion. The accused testified that he could not recall talking to the police.

The Newfoundland andLabrador Court of Appeal stated (at paragraph 14) that the correct test was “whether Mr. Lambert knew what he was saying and that hewas saying it to a police officer who could use it to his detriment.” [47] The Supreme Court of Canada in R. v. Spencer, 2007 SCC 11, explains that the trial judge must consider all of the relevantfactors in the determination of voluntariness and whether there has been an inducement to give a statement (at paragraphs 11-12): 11 At common law, statements made by an accused to a person in authority are inadmissible unless they are made voluntarily.

ThisCourt set out the test for ascertaining the voluntariness of such statements in Oickle. That case “recast the law relating to thevoluntariness of confessions ... It rejected resort to fixed and narrow rules”: D. M. Paciocco and L. Stuesser, The Law of Evidence (4thed. 2005), at p. 290. As Iacobucci J. explained in Oickle, at para. 27, the rule “is concerned with voluntariness, broadly understood”. Healso emphasized that a contextual approach is required (at para. 47): The application of the rule will by necessity be contextual.

Hard and fast rules simply cannot account for the variety ofcircumstances 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. 12 In Oickle, the Court recognized that there are several factors to consider in determining whether there is a reasonable doubt as tothe voluntariness of a statement made to a person in authority, including the making of threats or promises, oppression, the operatingmind doctrine and police trickery.

Threats or promises, oppression and the operating mind doctrine are to be considered together and“should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule” (Oickle, at para. 63). On theother hand, the use of “police ... trickery” to obtain a confession “is a distinct inquiry ... [given that] its more specific objective ismaintaining the integrity of the criminal justice system” (para. 65). [48] Oickle discusses police trickery, referring to R. v.

Rothman, (SCC), [1981] 1 S.C.R. 640 (at paragraphs 66-67): 66 Lamer J. was also quick to point out that courts should be wary not to unduly limit police discretion (at p. 697): [T]he investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. Theauthorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceitand should not through the rule be hampered in their work. What should be repressed vigorously is conduct on their part that shocks thecommunity.

As examples of what might "shock the community", Lamer J. suggested a police officer pretending to be a chaplain or a legal aid lawyer,or injecting truth serum into a diabetic under the pretense that it was insulin. Lamer J.'s discussion on this point was adopted by the Courtin R. v. Collins, (SCC), [1987] 1 S.C.R. 265 (S.C.C.) at pp. 286-87; see also R. v. Clot (1982), (QCCS), 69 C.C.C. (2d) 349 (C.S. Que.). 67 In Hebert, supra, this Court overruled the result in Rothman based on the Charter's right to silence. However, I do not believe thatthis renders the "shocks the community" rule redundant.

There may be situations in which police trickery, though neither violating theright to silence nor undermining voluntariness per se, is so appalling as to shock the community.

I therefore believe that the testenunciated by Lamer J. in Rothman, and adopted by the Court in Collins, is still an important part of the confessions rule. [Emphasis in original.] [49] The importance of having recorded conversations is addressed in Oickle at paragraph 46: 46 Before turning to how the confessions rule responds to these dangers, I would like to comment briefly on the growing practice ofrecording police interrogations, preferably by videotape. As pointed out by J. J. Furedy and J.

Liss in “Countering Confessions Inducedby the Polygraph: Of Confessionals and Psychological Rubber Hoses” (1986), 29 Crim. L.Q. 91, at p. 104, even if “notes were accurateconcerning the content of what was said . . ., the notes cannot reflect the tone of what was said and any body language that may havebeen employed” (emphasis in original). White, supra, at p. 153, similarly offers four reasons why videotaping is important: First, it provides a means by which courts can monitor interrogation practices and thereby enforce the other safeguards.

Second, itdeters the police from employing interrogation methods likely to lead to untrustworthy confessions. Third, it enables courts to makemore informed judgments about whether interrogation practices were likely to lead to an untrustworthy confession. Finally, mandatingthis safeguard accords with sound public policy because the safeguard will have the additional salutary effects besides reducinguntrustworthy confessions, including more net benefits for law enforcement.

This is not to suggest that non-recorded interrogations are inherently suspect; it is simply to make the obvious point that when arecording is made, it can greatly assist the trier of fact in assessing the confession. [50] The Supreme Court of Canada in R. v. (Jagrup) Singh, 2007 SCC 48, addresses an accused’s right to silence. Police persistencein questioning a detainee following their repeated desire to remain silent may amount to denial of a meaningful choice of whether toremain silent or not. In R. v. (Jagrup) Singh, the Supreme Court of Canada held that the test under

section 7 of the Charter that grants theright to silence is “functionally equivalent” to the common-law test for voluntariness at paragraph 8: 8 Second, I find no error in law in the approach adopted by the courts below. The Court of Appeal’s impugned comment on theinterplay between the confessions rule and s. 7 of the Charter merely reflects the fact that, in the context of a police interrogation of aperson in detention, where the detainee knows he or she is speaking to a person in authority, the two tests are functionally equivalent.

Itfollows that, where a statement has survived a thorough inquiry into voluntariness, the accused’s Charter application alleging that thestatement was obtained in violation of the pre-trial right to silence under s. 7 cannot succeed. Conversely, if circumstances are such thatthe accused can show on a balance of probabilities that the statement was obtained in violation of his or her constitutional right to remainsilent, the Crown will be unable to prove voluntariness beyond a reasonable doubt. As I will explain, however, this does not mean that

the residual protection afforded to the right to silence under s. 7 of the Charter does not supplement the common law in other contexts. [51] Adams J. in R. v. Newman, 2011 NLTD(G) 92, found that the cumulative effect of factors can act to justify a conclusion that astatement was not voluntary and hence inadmissible (at paragraphs 60 and 127). Charter Rights [52] Sections 7, 10(b), and 12 of the Charter provide: Life, liberty and security of person 7.

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. Arrest or detention 10. Everyone has the right on arrest or detention … (

b) to retain and instruct counsel without delay and to be informed of that right; Treatment or punishment 12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [53] Mr. Leonard bears the onus of proof on the balance of probabilities in order to establish that his rights under the Charter wereviolated. [54] R. v. (Jagrup) Singh cites with approval R. v.

Hebert, (SCC), [1990] 2 S.C.R. 151, which discusses thebalance between the right to silence and the investigation of criminal activity (at paragraph 46): 46 Hebert therefore set out the parameters of the s. 7 Charter right to silence to achieve this balance. Some of the limits set out by theCourt were responsive to the particular facts in Hebert and, consequently, are only relevant to the situation where a detainee isinterrogated by an undercover officer. They need not be repeated here. Of relevance in this case are the first two limits.

I reproduce therelevant excerpts here: First, there is nothing in the rule to prohibit the police from questioning the accused in the absence of counsel after the accused hasretained counsel. Presumably, counsel will inform the accused of the right to remain silent. If the police are not posing as undercoverofficers and the accused chooses to volunteer information, there will be no violation of the Charter. Police persuasion, short of denyingthe suspect the right to choose or depriving him of an operating mind, does not breach the right to silence. Second, it applies only after detention.

Undercover operations prior to detention do not raise the same considerations. Thejurisprudence relating to the right to silence has never extended protection against police tricks to the pre-detention period. Nor does theCharter extend the right to counsel to pre-detention investigations. The two circumstances are quite different. In an undercover operationprior to detention, the individual from whom information is sought is not in the control of the state. There is no need to protect him fromthe greater power of the state.

After detention, the situation is quite different; the state takes control and assumes the responsibility ofensuring that the detainee’s rights are respected. [Emphasis in original.]

Section 10(

b) of the Charter [55] Pike refers to the Alberta Court of Appeal in R. v. Luong, 2000 ABCA 301, respecting

section 10(

b) of the Charter (at

paragraph 72): 72 … 12. For the assistance of trial judges charged with the onerous task of adjudicating such issues, we offer the following guidance: 1. The onus is upon the person asserting a violation of his or her Charter right to establish that the right as guaranteed bythe Charter has been infringed or denied.

Section 10(

b) imposes both informational and implementational duties on state authorities who arrest or detain aperson. 3. The informational duty is to inform the detainee of his or her right to retain and instruct counsel without delay and ofthe existence and availability of Legal Aid and duty counsel. 4. The implementational duties are two-fold and arise upon the detainee indicating a desire to exercise his or her right tocounsel. 5. The first implementational duty is "to provide the detainee with a reasonable opportunity to exercise the right (except inurgent and dangerous circumstances)". R. v.

Bartle (1994), (SCC), 92 C.C.C. (3d) 289 (S.C.C.) at 301. 6. The second implementational duty is "to refrain from eliciting evidence from the detainee until he or she has had thatreasonable opportunity (again, except in cases of urgency or danger)". R. v. Bartle, supra, at 301. 7. A trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with areasonable opportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the rightto counsel was provided with a reasonable opportunity to exercise the right. 8.

If the trial judge concludes that the first implementation duty was breached, an infringement is made out. 9. If the trial judge is persuaded that the first implementation duty has been satisfied, only then will the trial judgeconsider whether the detainee, who has invoked the right to counsel, has been reasonably diligent in exercising it; the detainee has theburden of establishing that he was reasonably diligent in the exercise of his rights. R. v. Smith (1989), (SCC), 50 C.C.C.(3d) 308 (S.C.C.) at 315-16 and 323. 10.

If the detainee, who has invoked the right to counsel, is found not to have been reasonably diligent in exercising it, theimplementation duties either do not arise in the first place or will be suspended. R. v. Tremblay (1987), (SCC), 37 C.C.C.(3d) 565 (S.C.C.) at 568; R. v. Leclair (1989), (SCC), 46 C.C.C. (3d) 129 (S.C.C.) at 135; R. v. Black (1989), (SCC), 50 C.C.C. (3d) 1 (S.C.C.) at 13; R. v. Smith, supra, at 314; R. v. Bartle, supra, at 301 and R. v. Prosper (1994), (SCC), 92 C.C.C. (3d) 353 (S.C.C.) at 375-381 and 400-401. In such circumstances, no infringement is made out. 11.

Once a detainee asserts his or her right to counsel and is duly diligent in exercising it, (having been afforded areasonable opportunity to exercise it), if the detainee indicates that he or she has changed his or her mind and no longer wants legaladvice, the Crown is required to prove a valid waiver of the right to counsel.

In such a case, state authorities have an additionalinformational obligation to "tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation onthe part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminatingprocess until he or she has had that reasonable opportunity" (sometimes referred to as a "Prosper warning"). R. v. Prosper, supra, at 378-79.

Absent such a warning, an infringement is made out. [56] In 2010, the Supreme Court of Canada decided three cases in which the right to counsel was advanced as the basis to excludestatements provided to the police. The issue in R. v. Sinclair, 2010 SCC 35, was whether a detainee, given the right to counsel at the

commencement of the detention, has a constitutional right to further consultation with counsel during the course of the investigativeinterview. [57] The court in Sinclair sets out the purpose of

section 10(

b) at paragraphs 24, 25, 26, 32 and 36: 24 The purpose of s. 10(

b) is to provide a detainee with an opportunity to obtain legal advice relevant to his legal situation. In thecontext of a custodial interrogation, chief among the rights that must be understood by the detainee is the right under s. 7 of the Charterto choose whether to cooperate with the police or not. 25 The purpose of s. 10(

b) of the Charter and its relationship with the right to silence under s. 7 were stated by McLachlin J. (as shethen was) in R. v. Hebert, (SCC), [1990] 2 S.C.R. 151 (S.C.C.), at pp. 176-77. These rights combine to ensure that asuspect is able to make a choice to speak to the police investigators that is both free and informed:

Section 7 confers on the detained person the right to choose whether to speak to the authorities or to remain silent.

Section 10(b)requires that he be advised of his right to consult counsel and permitted to do so without delay. The most important function of legal advice upon detention is to ensure that the accused understands his rights, chief amongwhich is his right to silence.... Read together, ss. 7 and 10(

b) confirm the right to silence in s. 7 and shed light on its nature. The guarantee of the right to consult counsel confirms that the essence of the right is the accused’s freedom to choose whether tomake a statement or not. The state is not obliged to protect the suspect against making a statement: indeed it is open to the state to uselegitimate means of persuasion to encourage the suspect to do so. The state is, however, obliged to allow the suspect to make aninformed choice about whether or not he will speak to the authorities.

To assist in that choice, the suspect is given the right to counsel. 26 The purpose of the right to counsel is “to allow the detainee not only to be informed of his rights and obligations under the law, butequally if not more important, to obtain advice as to how to exercise those rights”: R. v. Manninen, (SCC), [1987] 1S.C.R. 1233 (S.C.C.), at pp. 1242-43. The emphasis, therefore, is on assuring that the detainee’s decision to cooperate with theinvestigation or decline to do so is free and informed.

Section 10(

b) does not guarantee that the detainee’s decision is wise; nor does itguard against subjective factors that may influence the decision. Its purpose is simply to give detainees the opportunity to access legaladvice relevant to that choice. … 32 We conclude that in the context of a custodial interrogation, the purpose of s. 10(

b) is to support the detainee’s right to choosewhether to cooperate with the police investigation or not, by giving him access to legal advice on the situation he is facing. This isachieved by requiring that he be informed of the right to consult counsel and, if he so requests, be given an opportunity to consultcounsel. … 36 This returns us to the purpose of s. 10(b). As discussed above, it is to inform the detainee of his or her rights and provide thedetainee with an opportunity to get legal advice on how to exercise them.

These purposes can be achieved by the right to re-consultcounsel where developments make this necessary, discussed below. They do not demand the continued presence of counsel throughoutthe interview process. [Emphasis in original.] [58] Sinclair explained that a change in the accused’s jeopardy may give rise to the right to a further consultation with counsel (atparagraphs 43, 48, 51, 52 and 60): 43 The authorities suggest that normally, s. 10(

b) affords the detainee a single consultation with a lawyer. However, they alsorecognize that in some circumstances, a further opportunity to consult a lawyer may be constitutionally required. These circumstances, asdiscussed more fully below, generally involve a material change in the detainee’s situation after the initial consultation.

… 48 The general idea that underlies the cases where the Court has upheld a second right to consult with counsel is that changed circumstances suggest that reconsultation is necessary in order for the detainee to have the information relevant to choosing whether to cooperate with the police investigation or not. The concern is that in the new or newly revealed circumstances, the initial advice may no longer be adequate. … 51 The detainee is advised upon detention of the reasons for the detention: s. 10( a ). The s. 10(

b) advice and opportunity to consult counsel follows this. The advice given will be tailored to the situation as the detainee and his lawyer then understand it. If the investigation takes a new and more serious turn as events unfold, that advice may no longer be adequate to the actual situation, or jeopardy, the detainee faces. In order to fulfill the purpose of s. 10( b ), the detainee must be given a further opportunity to consult with counsel and obtain advice on the new situation.

See Evans and Black . 52 If events indicate that a detainee who has waived his right to counsel may not have understood his right, the police should reiterate his right to consult counsel, to ensure that the purpose of s. 10(

b) is fulfilled: Prosper . More broadly, this may be taken to suggest that circumstances that indicate that the detainee may not have understood the initial s. 10(

b) advice of his right to counsel impose on the police a duty to give him a further opportunity to talk to a lawyer, … … 60 The better approach is to continue to deal with claims of subjective incapacity or intimidation under the confessions rule. For example, in R. v. Oickle , 2000 SCC 38 , [2000] 2 S.C.R. 3 (S.C.C.), at para. 61 , the Court recognized that using non-existent evidence to elicit a confession runs the risk of creating an oppressive environment and rendering any statement involuntary.

In Singh , the Court stressed that persistence in continuing the interview, particularly in the face of repeated assertions by the detainee that he wishes to remain silent, may raise “a strong argument that any subsequently obtained statement was not the product of a free will to speak to the authorities” (para. 47).

However, the cases thus far do not support the view that the common police tactic of gradually revealing (actual or fake) evidence to the detainee in order to demonstrate or exaggerate the strength of the case against him automatically triggers the right to a second consultation with a lawyer, giving rise to renewed s. 10(

b) rights. [ 59 ] The court acknowledged in Sinclair (at paragraph 2 ) that developments in the course of the investigation may open the door to a further consultation with legal counsel in order to: … serve the purpose underlying s. 10(

b) of providing the detainee with legal advice relevant to his right to choose whether to cooperate with the police investigation or not. To date, this principle has led to the recognition of the right to a second consultation with a lawyer where changed circumstances result from: new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the first information provided was deficient. The categories are not closed. [ 60 ] On the facts in Sinclair , the breach of

section 10(

b) of the Charter was not established where the detainee had been advised of his right to counsel and twice spoke with a lawyer of his choosing. The facts revealed that in the course of the interview, the police had “repeatedly confirmed” that it was the decision of the detainee whether he wished to speak to legal counsel or not. The facts did not establish any “changed circumstances” which would require further consultation with counsel (at paragraph 3). [ 61 ] The interplay between the right to silence and the right to counsel is examined in Sinclair at paragraph 29 : 29 The s. 10(

b) right to consult and retain counsel and to be advised of that right supports the broader s. 7 right to silence. However, it is not to be confused with the right to silence. An important purpose of legal advice is to inform the accused about his right to choose whether to cooperate with the police investigation and how to exercise it.

Section 10(

b) is a specific right directed at one aspect of protecting the right to silence — the opportunity to secure legal assistance. A given case may raise both s. 10(

b) and s. 7 issues. Where it is alleged under s. 7 and the confessions rule that a statement is involuntary because of denial of the right to consult counsel, the factual underpinning of the two inquiries may overlap: Singh . Yet they remain distinct inquiries. The fact that the police complied with s. 10(

b) does not mean that a statement is voluntary under the confessions rule. Conversely, the fact that a statement is made voluntarily does not rule out breach of s. 10( b ). It follows that Singh , which was concerned with the s. 7 right to silence, does not resolve the issue on this appeal. [ 62 ] Sinclair remarks that a “skilled interrogator” may consider it to be a “useful technique” to provide reassurance to a detainee that further consultation with legal counsel is available if needed, writing at paragraph 49: 49 … For example, in the companion case of R. v.

Willier , 2010 SCC 37 (S.C.C.), a skilled interrogator commenced the interview by making it clear to the detainee that he would be free at any time during the interview to stop and call a lawyer. The question here is when a further consultation is required under s. 10(

b) of the Charter . For the purpose of providing guidance to investigating police officers, it

is helpful to indicate situations in which it appears clear that a second consultation with counsel is so required. The categories are not closed. However, additions to them should be developed only where necessary to ensure that s. 10(

b) has achieved its purpose. [ 63 ] The Supreme Court of Canada in Sinclair at paragraph 54 repeats that a “new or emergent” situation may trigger the right of another consultation with legal counsel, highlighting that the categories are not closed: 54 The cases thus far offer examples of situations where the right of another consultation arises. However, the categories are not closed.

Where the circumstances do not fall into a situation previously recognized, the question is whether a further opportunity to consult a lawyer is necessary to fulfill s. 10( b )’s purpose of providing the detainee with advice in the new or emergent situation. [ 64 ] The court in Sinclair summarizes the right to counsel and its interplay with the voluntariness of statements at paragraph 65: 65 We conclude that the principles and case-law do not support the view that a request, without more, is sufficient to re-trigger the s. 10(

b) right to counsel and to be advised thereof. What is required is a change in circumstances that suggests that the choice faced by the accused has been significantly altered, requiring further advice on the new situation, in order to fulfill the purpose of s. 10(

b) of providing the accused with legal advice relevant to the choice of whether to cooperate with the police investigation or not. Police tactics short of such a change may result in the Crown being unable to prove beyond a reasonable doubt that a subsequent statement was voluntary, rendering it inadmissible. But it does not follow that the procedural rights granted by s. 10(

b) have been breached. [ 65 ] In the companion case, R. v. McCrimmon , 2010 SCC 36 , the Supreme Court of Canada discussed the interplay of

section 10(

b) and the voluntariness of a statement at paragraphs 3 and 4: 3 For the reasons set out in Sinclair , we reject Mr. McCrimmon’s submission that s. 10(

b) requires the presence, upon request, of defence counsel during a custodial interrogation. We also agree with the courts below that no s. 10(

b) violation ensued from the failure to provide him with an opportunity to consult with the particular lawyer of his choice prior to the interrogation or from the denial of his requests for further consultation during the course of the interrogation. As explained in Sinclair , the police may provide the detainee with any number of opportunities to consult with counsel. However, they are constitutionally required to do so only where developments in the course of the interrogation make this necessary to serve the purpose underlying s. 10(

b) of providing the detainee with legal advice relevant to his right to choose whether to cooperate with the police investigation or not. Where no such change occurs, the better approach is to continue to deal with claims of subjective incapacity or intimidation under the confessions rule. 4 In this case, there was no change in circumstances triggering a right to renewed consultation with counsel. Further, the trial judge properly considered any impact on Mr. McCrimmon arising from the police’s refusals to facilitate further contacts with counsel in assessing the voluntariness of the statements.

We see no reason to interfere with the trial judge’s conclusion that the statements were voluntary or his dismissal of the Charter application. [ 66 ] As with Mr. Leonard, Mr. McCrimmon expressed his desire to return to his cell as he did not wish to be questioned (at paragraph 9). The investigative interview continued nonetheless with the investigating officer carrying on “with long monologues obviously designed to establish a rapport with Mr. McCrimmon and elicit information from him” (at paragraph 11).

The court referred to its earlier decision in Sinclair where it was explained that “a single-occasion rule for consulting counsel will not always fulfill the purpose of s. 10(b).” The court reiterated that the categories which would facilitate a renewed consultation with counsel while not closed, did include (at paragraph 21): 21. … new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe the first information provided was deficient.

The question then becomes whether, in this case, there was a change of circumstances of this nature that made it necessary to provide Mr.

McCrimmon with a further opportunity to consult with counsel to fulfill the purpose of s. 10(b). [ 67 ] The court also notes in McCrimmon at paragraph 23 : “However, where developments in the investigation suggest that the detainee may be confused about his choices and right to remain silent, this may trigger the right to a renewed consultation with a lawyer under s. 10(b).” [ 68 ] The court in McCrimmon evaluated the circumstances as a whole, writing at paragraphs 24 and 26: 24 Arguably, Mr.

McCrimmon’s expression of vulnerability and ignorance of the law, when considered in isolation, could indicate such confusion. However, when the circumstances are viewed as whole, it is clear that Mr. McCrimmon understood his right to silence. Sgt. Proulx repeatedly confirmed that it was Mr. McCrimmon’s choice whether to speak or not. It is apparent from Mr. McCrimmon’s interjections in the course of the interview that he understood this.

As the trial judge put it: “He clearly discerned which questions might put him in jeopardy and indicated he did not wish to answer those questions” (para. 46). … 26 It follows that we reject Mr. McCrimmon’s further argument that the trial judge’s failure to recognize a breach of the right to counsel undermined his conclusion that the statement was voluntary.

It is important to add, however, as we noted in Sinclair , that the continuation of an interview in the face of the detainee’s repeated expression of his desire for the interview to end and to speak with counsel may raise a reasonable doubt as to the voluntariness of any subsequently given statement. However, it is clear from the trial judge’s reasons that he considered all relevant circumstances in determining that the statements were voluntary, including any subjective impact the refusal of Mr. McCrimmon’s requests to speak to counsel may have had on him.

Consequently, we see no reason to interfere with the trial judge’s conclusion on voluntariness.

[69] R. v. Willier, 2010 SCC 37, was also a case considered by the Supreme Court of Canada in relation to the right to counsel undersection 10(

b) of the Charter. [70] Mr. Willier had informed the police prior to the investigative interview that he had taken a number of street drugs and wastaken to the hospital and returned to his cell for the night and not questioned until the morning. [71] In Willier, the detainee had spoken with Legal Aid counsel twice but had expressed a preference to speak to a particular lawyer,who could not be reached. The investigative interview commenced after the second call with Legal Aid, with the police giving Mr.Willier “an open-ended invitation to contact counsel at any point during the exchange” (at paragraph 2).

In the morning, the policeofficer confirmed that Mr. Willier had spoken to a lawyer the night before and asked if he wanted to contact counsel again. Before theinterview started, the officer asked Mr. Willier to repeat the nature of the police caution back to him to ensure that he understood what itmeant. The police officer then told him that he was going to proceed with the interview but Mr.

Willier could stop it at any time to call alawyer (at paragraph 12): Gillespie: And ah, ah, as long as you’re satisfied with the advice you got I think ah, we’ll proceed from here but I want you to know thatah, at any time if you want to stop and call a lawyer you’re more than welcome to do so okay. I don’t want to, to deprive you of that inany way, shape or form so. Willier: Yea. Gillespie: Ahm, if, if you want to talk to a lawyer you just say, hey Charlie I want to talk to a lawyer. Willier: Hmm. Gillespie: Does that sound good? Willier: Yes. Gillespie: Okay. Do you have any other questions of me at all ah?

Willier: No. [72] The trial judge concluded that the statements were given while Mr. Willier was “alert, focused, and rational” (at paragraph 14),but nonetheless excluded them due to a breach to right to counsel under

section 10(

b) of the Charter. No such breach was found onappeal. [73] The Supreme Court of Canada in Willier addresses the interplay between the right to silence and the right to counsel atparagraphs 27 and 28: 27 As we describe in Sinclair, the right to silence in s. 7 and the right to counsel in s. 10(

b) work together “to ensure that a suspect isable to make a choice to speak to the police investigators that is both free and informed” (para. 25).

Section 10(

b) aims to realize thispurpose by ensuring that detainees have an opportunity to be informed of their rights and obligations under the law and to obtain adviceon how to exercise those rights and perform those obligations. As Lamer C.J. wrote in R. v. Bartle, (SCC), [1994] 3S.C.R. 173 (S.C.C.), at p. 191: This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position ofdisadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk ofincriminating him- or herself.

Accordingly, a person who is “detained” within the meaning of s. 10 of the Charter is in immediate need oflegal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty: Brydges,at p. 206; R. v. Hebert, (SCC), [1990] 2 S.C.R. 151, at pp. 176-77; and Prosper. Under s. 10(b), a detainee is entitled asof right to seek such legal advice “without delay” and upon request. As this Court suggested in Clarkson v. The Queen, (SCC), [1986] 1 S.C.R. 383, at p. 394, the right to counsel protected by s. 10(

b) is designed to ensure that persons who are arrested ordetained are treated fairly in the criminal process. [Emphasis deleted.] 28 Accordingly, s. 10(

b) provides detainees with an opportunity to contact counsel in circumstances where they are deprived ofliberty and in the control of the state, and thus vulnerable to the exercise of its power and in a position of legal jeopardy. The purpose ofs. 10(

b) is to provide detainees an opportunity to mitigate this legal disadvantage.

[74] The court in Willier notes that the right to counsel is not met by a mechanical recitation of that right (at paragraph 31). Thecourt also instructs that the police are not responsible for advice that was brief or inadequate (at paragraph 42). The importance of anexamination of all the circumstances is stated, with the court referring to the “open-ended invitation” Mr. Willier was given to contactcounsel (at paragraph 44): 44 Further, the brief interval between Mr. Willier’s attempt to contact Mr.

Royal and the start of the investigative interview did notdeprive him of a reasonable opportunity to contact counsel of choice. The brevity of the interval must be viewed in light of all thecircumstances prior to the commencement of the interview. After speaking with Legal Aid, Mr. Willier expressed satisfaction with thatadvice prior to being questioned. He did not pursue any further opportunity to contact Mr. Royal, though he was offered an open-endedinvitation to contact counsel prior to and throughout the interview. If Mr.

Willier maintained any continuing desire to speak with Mr.Royal, or wait for him to call back, he was not diligent in exercising that right. There is little more that the police could have done inthese circumstances to afford Mr. Willier a reasonable opportunity to exercise his rights under s. 10(b). There was therefore no violationof Mr. Willier’s right to counsel. [75] Burrage J. discusses the significance of a change in jeopardy in Pike. There, the accused had a short telephone conversationwith her lawyer when it was understood that the charge to be advanced was attempted murder.

This was subsequently changed tomurder. The Crown’s argument that the charge was immaterial to the accused’s exercise of her rights was not accepted by the court (atparagraph 77) citing R. v. Black, (SCC), [1989] 2 S.C.R. 138: 77. In Black the accused had a brief telephone conversation with her lawyer, at a point in time when she understood the charge to beattempted murder. The charge was subsequently changed to murder and the Crown argued that the change was immaterial to theaccused’s exercise of her rights. Wilson, J. for a unanimous court, disagreed (at paras 30- 33): 30. Moreover, s. 10(

b) should not be read in isolation. Its ambit must be considered in light of s. 10(a).

Section 10(

a) requires the policeto advise an individual who is arrested or detained of the reasons for such arrest or detention. The rights accruing to a person under s.10(

b) arise because he or she has been arrested or detained for a particular reason. An individual can exercise his s. 10(

b) right in ameaningful way only if he knows the extent of his jeopardy. 31. When the appellant contacted Mr. Digby she had been told that she was under arrest for attempted murder, or, depending upon whichevidence one accepts, for a “stabbing”. This is significantly different from a charge of first degree murder. First, while the Crown mustprove that the accused intended to kill the victim in a charge of attempted murder (see R. v. Ancio, (SCC), [1984] 1S.C.R. 225, 39 C.R. (3d) 1, 10 C.C.C. (3d) 385, 6 D.L.R. (4th) 577, 2 O.A.C. 124, 52 N.R. 161), such a str

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