R v C.L., 2023 SKCA 58

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3553 Citation: R v C.L. , 2023 SKCA 58 Date: 2023-05-17 Between: C.L. Appellant And His Majesty the King Respondent Before: Tholl, Kalmakoff and Drennan JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Mr.

Justice Tholl The Honourable Madam Justice Drennan On appeal from: 2021 SKQB 330 , CRM 46 of 2019 (QB), and 2022 SKQB 90 , Regina Appeal heard: March 15, 2023 Counsel: Peter Sankoff and Christina Skibinsky for the Appellant Erin Bartsch for the Respondent Kalmakoff J.A. I. Introduction [ 1 ] After a judge alone trial in the Court of Queen’s Bench, C.L. was convicted of committing sexual interference against his 6- year-old niece and sentenced to 4.5 years in a federal penitentiary.

He appeals against both the conviction and the sentence. [ 2 ] C.L. suffers from mental disorders that include schizophrenia, schizotypal personality disorder, and attention deficit hyperactivity disorder [ADHD]. The issues he raises on appeal concern the way in which the trial judge dealt with the intersection between his mental disorders and the factual and legal questions she had to determine. [ 3 ] In his appeal against conviction, C.L. contends that the trial judge erred by admitting into evidence a statement that was obtained in connection with a violation of his right to counsel.

In the alternative, he argues that, even if the inculpatory statement was properly admitted as evidence, the trial judge erred by failing to consider the expert evidence concerning how his mental disorders affected the statement’s reliability. [ 4 ] For the reasons that follow, I have determined that it is only necessary to deal with C.L.’s first argument, as it is dispositive of the appeal. In my respectful view, the trial judge erred by finding that there had been no violation of C.L.’s right to counsel and, thus, erred by admitting his statement as evidence.

The consequence of this conclusion is that C.L.’s conviction must be set aside, and a new trial held. In light of that, the sentence appeal need not be addressed. II. Background [ 5 ] In 2011, C.L. was diagnosed with schizotypal personality disorder, schizophrenia, and ADHD. According to the evidence led at trial, those conditions make him prone to obsessive thinking, unusual perceptions and inaccurate or skewed

interpretation of events. Because of his mental disorders, C.L. has been unable to live independently, maintain steady employment or pursue post-secondary education. For the most part, his condition is managed by medication, including an anti-psychotic injection to assist with his schizotypal personality disorder and schizophrenia, and an oral prescription for his ADHD. [ 6 ] In February of 2018, C.L. began living with his sister and her three young children. At some point thereafter, he stopped taking his prescribed medication.

Over time, he formed the erroneous belief that one of the children, K.S., had been sexually assaulted by a neighbour, and he became obsessed with investigating this belief and bringing that person to justice. As part of this venture, when K.S. was in his care, C.L. would repeatedly question her about sexual matters. [ 7 ] Eventually, on May 5, 2018, C.L. called the police to report what he believed the neighbour had done to K.S. He also told K.S.’s parents what he believed had occurred. Officers attended to the residence and spoke with C.L., as well as K.S. and her parents.

K.S. was taken to the local RCMP detachment to be interviewed. [ 8 ] C.L. was also transported to the detachment, at his own request, by one of the attending officers, Cst. Antoine Cote. They arrived at the detachment at 8:14 p.m. Upon arrival, C.L. was instructed to wait in an unlocked interview room, as the officers informed him that they wished to obtain a statement from him after they had finished interviewing K.S. At this point, C.L. was not a suspect; the

police wanted to interview him because he had been the one to report the matter to them. [ 9 ] That changed, however, after K.S. was interviewed. In the course of the interview, she said that C.L. had touched her sexually the previous day. At approximately 11:00 p.m., shortly after the conclusion of K.S.’s interview, police directed C.L. to move to a locked interview room, where he would remain while the officers decided how they would proceed.

Even though C.L. was detained at that point, the officers did not advise him of the reason he was being detained or provide him with any information about his Charter rights. [ 10 ] C.L. remained alone in the secure interview room until 12:30 a.m., when Cst. Cote entered the room and placed him under arrest. Then, Cst. Cote advised C.L. of his right to counsel and read to him the standard police warning, which also advised him of the right to remain silent. C.L. did not ask to call a lawyer. He was not immediately interviewed, nor were any other evidence-gathering steps taken at that time.

Instead, C.L. was lodged in cells until later that morning, when another police officer, Cpl. Erin McLeod, arrived at 10:32 a.m. to take a warned statement from him. [ 11 ] At the outset of the interview, Cpl. McLeod read the secondary police caution to C.L., advising him that he need not repeat anything he might have said to any other police officer, and that anything he said to Cpl. McLeod may be used as evidence. Cpl.

McLeod also explained the offences for which C.L. had been arrested, attempted to obtain some clarification about his mental disorders, and confirmed that C.L. had not requested to speak to counsel when he had spoken to Cst. Cote earlier. After all of that was done, Cpl. McLeod began the interview and, during the course of it, C.L. provided a statement in which he admitted to having touched K.S. sexually. [ 12 ] At trial, the Crown sought to introduce C.L.’s statement as evidence.

Pertinent to the scope of this appeal, C.L. argued that he was experiencing a state of psychosis at the time the statement was taken, due to the effects of his mental disorders and the fact that he had been off his prescribed mediation for some time. He asserted that his statement should not be admitted because it was not the product of an operating mind or, at the very least, was so unreliable due to his mental disorders as to not be properly received as evidence. He also argued that the police had breached his rights under several sections of the Charter in the course of obtaining the statement.

In particular, he contended that, because they had proceeded to take the warned statement from him even though they knew he was actively experiencing psychosis, they were guilty of an abuse of process. He also argued that his rights under ss. 10(

a) and (

b) of the Charter had been violated, because the police had failed to inform him without delay of the reason for his detention or of his right to counsel. He submitted that there had been a further breach of his s. 10(

b) rights, in that the police had proceeded as though he had not asserted his right to counsel even though it was apparent that he did not understand the information they had provided to him about the right. [ 13 ] The trial judge admitted C.L.’s statement as evidence. She found that it was the product of an operating mind and that it was voluntary under the framework established in R v Oickle , 2000 SCC 38 , [2000] 2 SCR 3, and R v Spencer , 2007 SCC 11 , [2007] 1 SCR 500. She also determined that, of the various Charter breaches C.L. had alleged, he had only succeeded in establishing a breach of his rights under ss. 10(

a) and (

b) on the basis that he was detained for approximately 90 minutes before being informed of the reason for his detention or advised of his right to counsel. She did not exclude the statement under s. 24(2) of the Charter , however, as she determined that those breaches were only minor and inconsequential, and found that they had been cured before he provided any incriminating evidence. She explicitly rejected the argument that the police had violated C.L.’s s. 10(

b) rights by failing to properly inform him of his right to counsel before proceeding with the warned interview. In that regard, she found that, before C.L. gave his statement, he understood the charges he was facing, understood that he could speak to counsel if he wanted to, and understood that he was under no obligation to speak to police. Accordingly, she admitted his statement into evidence ( R v C.L. , 2021 SKQB 330 [ Voir Dire Decision ]). [ 14 ] In addition to tendering C.L.’s statement, the Crown also called K.S. to testify.

During the course of her testimony, K.S. adopted her video-recorded statement, pursuant to s. 715.1 of the Criminal Code , and confirmed the portions of it in which she said C.L. had touched her sexually, but recanted the portions where she said another person had done so. [ 15 ] C.L. did not testify at the trial. He argued that K.S.’s evidence was not reliable, given the fact that her story had changed.

He also contended that the trial judge should find his statement to be neither credible nor reliable, in light of the evidence his psychiatrists provided about his mental state at the time he gave the statement and the mixture of exculpatory and inculpatory things he said in it. The trial judge determined that, notwithstanding the evidence that C.L. was experiencing psychosis during the interview, when his statement was considered along with all of the other evidence, including that given by K.S., the inculpatory portions of it were true.

The trial judge also found that K.S.’s evidence was both reliable and credible, at least insofar as her accusations of C.L. were concerned. Accordingly, the trial judge found the Crown had proven beyond a reasonable doubt that C.L. had touched K.S. sexually on May 4, 2018 ( R v C.L. , 29 June 2021, Regina, CRM 46 of 2019 (QB)). [ 16 ] After the trial judge found him guilty of sexual interference and sexual assault, C.L. applied under s. 16 of Criminal Code for a finding that he was not criminally responsible on the basis of mental disorder.

The trial judge rejected that application, finding that C.L. had not satisfied her that he did not appreciate the nature and quality of his actions or that he was incapable of understanding that what he had done was wrong ( R v C.L. , 2022 SKQB 10 [ NCR Decision ]). No appeal was taken from the NCR Decision . [ 17 ] At the sentencing hearing, the Crown sought a term of imprisonment for C.L. of between five and six years.

It argued that, even though C.L.’s mental illness and the fact he was suffering from delusions and psychosis at the time he committed the offence could properly be viewed as circumstances that reduced his moral culpability, a lengthy term of incarceration was nonetheless called for. C.L. argued that, in light of his mental disorder, any term of incarceration would amount to cruel and unusual punishment, contrary to s. 12 of the Charter.

In that regard, he contended that the mandatory minimum term of imprisonment in s. 151(a), applied to his circumstances, was unconstitutional. [ 18 ] The trial judge determined that an appropriate and proportionate sentence for C.L. would be a term of imprisonment of 4.5 years. Because of that, she concluded that the question of whether the mandatory minimum sentence required by s. 151(

a) was unconstitutional did not need to be addressed, as the answer to that question would have no impact on the appropriate sentence ( R v C.L. , 2022 SKQB 90 ). III. Analysis

[19] As I indicated in the introduction to these reasons, only one of the questions C.L. raises on the appeal needs to be addressed, asit is dispositive. That question is: Did the trial judge err in concluding that C.L.’s right to counsel, as guaranteed by s. 10(

b) of the Charter,was not violated? A. Framing the argument [20] C.L. contends that the trial judge erred in finding that his statement had been obtained in a fashion that complied with his rightto counsel under s. 10(

b) of the Charter. He argues on the appeal, as he did at trial, that there was evidence the police were aware of hismental disorder and of the fact that he was unmedicated and symptomatic at the time of his arrest. He also says there was clear evidencethat, when Cst. Cote initially informed him of his right to counsel, he expressed a lack of understanding of his legal rights or how toimplement them.

He contends that, considering those circumstances, the police were not entitled to simply proceed as though he had notasserted his right to counsel, but that they had a duty to inquire further in order to ensure that he was not operating under anymisunderstanding about his rights before attempting to elicit evidence from him.

Relatedly, C.L. contends that the trial judge’s conclusionthat he understood his right to counsel is based on a misapprehension of the evidence. [21] C.L. also argues that the trial judge was incorrect in law to find that any lack of understanding on his part about his right tocounsel that may have existed after his dealings with Cst. Cote was rectified in his discussions with Cpl. McLeod before he made anyincriminating statements. B.

Standard of review [22] Where, as here, it is alleged on appeal that a trial judge has erred by failing to find that a Charter right has been violated, twostandards of review are engaged. The findings of fact underlying the trial judge’s decision are reviewable on the standard of palpable andoverriding error (R v Cote, 2011 SCC 46 at para 44, [2011] 3 SCR 215).

The question of whether the facts as found by the trial judgeestablish a violation of a Charter right is a question of law, reviewable for correctness (R v Le, 2019 SCC 34 at para 23, [2019] 2 SCR692; R v Kossick, 2018 SKCA 55 at para 19, 365 CCC (3d) 186; R v Lichtenwald, 2020 SKCA 70 at para 22, 388 CCC (3d) 377). C. The governing legal principles [23]

Section 10(

b) of the Charter provides that “[e]veryone has the right, on arrest or detention … to retain and instruct counselwithout delay and to be informed of that right”. The purpose of s. 10(

b) is to provide detainees with “an opportunity to contact counsel incircumstances where they are deprived of liberty and in the control of the state, and thus vulnerable to the exercise of its power and in aposition of legal jeopardy” (R v Willier, 2010 SCC 37 at para 28, [2010] 2 SCR 429 [Willier]). In this way, the protection offered by s.10(

b) ensures that detainees understand how to exercise their rights and are able to make choices about whether to speak to the police thatare both free and informed (R v Sinclair, 2010 SCC 35 at paras 25-32, 259 CCC (3d) 443 [Sinclair]; R v Hebert, (SCC),[1990] 2 SCR 151 at 176; R v Lafrance, 2022 SCC 32 at para 71, 416 CCC (3d) 183 [Lafrance]). [24] When a person is detained or arrested, s. 10(

b) imposes three defined, positive duties on the police: (

a) to inform the detainee of their right to retain and instruct counsel without delay and of the existence and availability of legalaid and duty counsel; (

b) if the detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise theright (except in urgent or dangerous circumstances); and (

c) to refrain from eliciting evidence from the detainee until the detainee has had that reasonable opportunity. The first of these duties is informational in nature. The second and third duties are implementational and are only triggered when thedetainee indicates a desire to exercise their right to counsel (Willier at paras 29–30; R v Bartle, (SCC), [1994] 3 SCR 173at 192 [Bartle]; R v Ector, 2018 SKCA 46 at paras 41–42, 362 CCC (3d) 462 [Ector]). [25] The right to counsel is not absolute; a detainee bears some responsibility where its exercise is concerned.

In Bartle, theSupreme Court held that “[u]nless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duty on the policeto provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended” (at192).

The right to counsel may also be waived, but any waiver must be clear and unequivocal, and it must be premised on properinformation; “a person who waives a right must know what he or she is giving up” (R v Prosper, (SCC), [1994] 3 SCR236 at 275; Bartle at 192; R v Cobham, (SCC), [1994] 3 SCR 360 at 370–371; and R v L.T.H., 2008 SCC 49 at para 41,[2008] 2 SCR 739). [26] The circumstances of C.L.’s case implicate the conduct of the police at the informational stage. The information component ofs. 10(

b) is crucial and requires police officers to explain the right to counsel to detainees in a timely and comprehensible manner because,as observed in Bartle, “[u]nless they are clearly and fully informed of their rights at the outset, detainees cannot be expected to makeinformed choices and decisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as the right tosilence” (at 193, emphasis in original). [27] The informational component of s. 10(

b) has been described as one that is “relatively straightforward” (Willier at para 31), andit will usually not be difficult to for police officers to fulfil their duty at this stage. Generally speaking, a standard police caution thatinforms the detainee that they have the right to seek and receive legal advice immediately and free of charge will suffice, “absent specialcircumstances indicating that a detainee may not understand the s. 10(

b) caution, such as language difficulties or a known or obviousmental disability” (Bartle at 193). [28] However, where there are circumstances that raise a question about whether the detainee understands the information conveyed

to them concerning the right to counsel, more may be required of the police. It is settled law that, where a detainee positively indicates thatthey do not understand their right to counsel, “the police cannot rely on a mechanical recitation of that right and must facilitate thatunderstanding” (Willier at para 31). The reason for this is obvious because, as noted in R v Evans, (SCC), [1991] 1 SCR869 at para 891 [Evans], “[a] person who does not understand [their] right to counsel cannot be expected to assert it”. [29] Of course, this does not require that police officers be mind readers.

Nor does it call upon them to thoroughly probe a detainee’sunderstanding of the right to counsel in every case. It will only be necessary to take further steps at the informational stage to address adetainee’s misunderstanding or lack of understanding of the right to counsel where there is a clear communication to that effect by thedetainee, or where other objective factors signal confusion or misunderstanding on the detainee’s part (R v Dunford, 2017 SKCA 1 at para27, 345 CCC (3d) 374. See also: Evans at 891; Bartle at 192–194; and Sinclair at para 55).

Put another way, where there is somethingabout the circumstances, viewed objectively, that positively indicates a possible lack of comprehension of the right to counsel on the partof the detainee, the police cannot presume that they have satisfactorily fulfilled their duty to inform (R v Magalong, 2013 BCCA 478 atpara 28, 305 CCC (3d) 396). D. The principles applied [30] As I will demonstrate, the trial judge erred in finding that C.L.’s rights under s. 10(

b) of the Charter were not violated inconnection with the taking of his statement. [31] In the Voir Dire Decision, the trial judge gave the following reasons for concluding that there had been no violation of C.L.’sright to counsel: [24] After considering the expert opinion evidence and viewing C.L.’s videotaped interview, I find that C.L. did possess sufficientcognitive ability to understand what he was saying, that he was speaking to police, and that there was jeopardy attached to him speaking topolice.

I note that because C.L. did not testify at the voir dire, I do not have any evidence respecting his subjective perceptions of the May6, 2018 interview.

Based on the evidence I do have, I am satisfied, beyond a reasonable doubt, that C.L. understood that: (1) he wasspeaking to police; (2) they were questioning him, among other things, about whether he had touched K.S. for a sexual purpose; (3) he didnot have to talk to police; (4) he had the right to speak to counsel; and, (5) there might be detrimental consequences to him as a result ofwhat he was telling police. … [36] Thus, while C.L. may not have had sufficient capacity during the interview to understand that it would be in his best interest tospeak to a lawyer, to remain silent and to refuse to speak with police, C.L.’s conduct and comments during the interview show that heunderstood he had a right to do these things – he just chose not to do them. … [96] Defence argues that neither Cst.

Cote nor, later, Cpl. McLeod informed C.L. of the reasons for his arrest. Defence contends thatC.L. did not understand the reasons for his arrest and therefore could not make an informed choice about whether to consult counsel. Withrespect, I do not agree. [97] Cst. Cote testified, and I accept, that he formally arrested C.L. and provided rights and warnings from his police issued card after12:30 AM on May 6, 2018. In direct examination, Cst. Cote testified that in response to his asking C.L. whether he understood the reasonsfor his arrest, C.L. answered: "I don't know".

When he received that answer he repeated the reasons for arrest again and C.L. said nothing.On cross-examination, it was suggested to Cst. Cote that C.L. said "I don't", in response to the question of "do you understand". Eitherway, C.L.'s answer suggests that he was unsure about what had been read to him. Cst. Cote then read C.L. his rights respecting legalcounsel. C.L. declined legal counsel and Cst. Cote testified, and I accept, that he had no trouble understanding him. [98] Following being given these rights and warnings, the police seized C.L.'s clothing and lodged him in cells.

The evidence is thatC.L. appeared to sleep through the night and was sleeping until he was woken up by guards in the morning on May 6, 2018 prior to hisinterview. [99]

Section 10(

a) of the Charter requires police to inform the accused of the reasons for his arrest. Cst. Cote clearly did this, althoughit is not clear whether C.L. understood the charges at that time. As such, whether C.L. was sufficiently informed to make an informeddecision respecting counsel under s. 10(

b) of the Charter requires further consideration. [100] As I have already reviewed, I find that when the charges C.L. was facing were explained by Cpl. McLeod at the start of the May6, 2018 interview, C.L. did understand those charges. He was able to summarize for Cpl. McLeod his understanding, including that heunderstood he was being charged for touching his niece for a sexual purpose. I agree with the Crown that while it may be that neither Cst.Cote nor Cpl.

McLeod specifically referenced charges of “sexual assault” or “possession of child pornography” (for which C.L. wasarrested in November of 2018), these offences were enmeshed within the substance of the charges that were explained to him, and theinvestigation that was contemplated. As I have already found, C.L. made it clear during the interview that he understood the nature of hisjeopardy. Specific, comprehensive and detailed wording is not required by s. 10(

a) of the Charter, rather it is the substance of what theaccused can reasonably be supposed to have understood, rather than the precise used words to describe the charges, which governswhether the police’s obligation pursuant to ss. 10(

a) and 10(

b) were met: R v Goodkey, 2015 BCCA 64 at para 114. As noted byMcLachlin J. (as she was then) in Evans at 888: ...The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit himto make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b). [101] When C.L. was first arrested, Cst. Cote told C.L. what charges he faced once and then again for a second time, although C.L. didnot acknowledge, one way or the other, that he understood. He said nothing. However, s. 10(

a) does not include a requirement that thesuspect immediately positively verbalize the extent of his understanding. There is no evidence from the subjective perspective of C.L.

whether he understood or not. Thereafter, C.L. slept through the night and the next morning, Cpl. McLeod explained those charges again. At this point, C.L. did demonstrate, from an objective perspective, that he understood the charges, as I have already found. Thereafter, C.L. declined to speak to counsel .

I have already found that he understood this was his right and even identified, to himself, a lawyer he could call if he chose to do so, which he did not. [102 ] I note also that because C.L. did not testify at the voir dire, there is no evidence of his understanding, or lack thereof, of the charges he faced or his right to consult with legal counsel .

The clearest evidence that he did understand comes from the statements he made in the May 6, 2018 interview, which I have already identified. [103] Thus, in all the circumstances surrounding C.L.'s arrest and his reading of rights and warnings, including the secondary rights and warnings provided to him, I am satisfied that there is no breach of s. 10(

a) or 10(

b) of the Charter . (Emphasis added) [ 32 ] With respect, this reasoning embeds several errors. [ 33 ] To start with, as I read the trial judge’s reasons, she found that the lack of understanding C.L. had expressed to Cst. Cote related only to the information conveyed to him about the reasons for his arrest, and that any misunderstanding in that regard had been resolved by the time he spoke to Cpl. McLeod.

She also found that C.L. had expressed that lack of understanding before he was informed of the right to counsel, and that there was “no evidence” that he lacked an understanding of his “right to consult with legal counsel” ( Voir Dire Decision at para 102). As I will explain, these factual findings amount to palpable and overriding error, because they do not reflect the evidence that had been led on those points, and they led the trial judge astray when she applied the law to them. [ 34 ] In that respect, Cst.

Cote had testified as follows with respect to the exchange that occurred when he advised C.L. of the reason for his arrest and informed him of his right to counsel: Q Okay. So tell us what you said and -- and when and what the answers were as that may apply. A Okay. So 0030, advised him that he was – [C.L.], you’re under arrest for a sexual interference and sex -- sexual exploitation, and then I read him these rights, word for word: (as read) I’m arresting/detaining you for sexual interference/sexual exploitation. You have the right to retain and instruct counsel without delay. You may call any lawyer you wish.

Legal Aid duty counsel is available to provide you with immediate legal aid -- or legal advice free of charge and can explain the Legal Aid plan to you. I can provide you with a number you could call free of charge. Do you understand? And that’s what -- and I wrote down, at 0032 (INDISCERNIBLE), Do you understand, and he indicated, I don’t know . … Q So is “I don’t know”, like, you’re writing that down at the time he was giving that answer? Like, that’s a verbatim answer, or -- A Yeah, that’s what he -- what he said directly, right after the fact . … Q Go on. A Okay.

And then, from -- then I says, Do you wish to call the -- a lawyer now? That’s a 10(

b) lawyer, and then he -- his answer was, No. And then, at 0033, the police warning: (as read) You need not say anything. You have nothing to hope from any promise or favour, nothing to fear from any threat whether or not you do say anything. Anything you do say may be used as evidence. Do you understand? And then, he indicated, Yeah. (Emphasis added) [ 35 ] When asked whether he took steps to clarify C.L.’s grasp of the situation, given that he had responded by saying “I don’t know” to the question of whether he understood the information he had been provided concerning his right to counsel, Cst.

Cote testified that the only clarification he provided was to repeat the reason for C.L.’s arrest, as set out in this exchange: Q Okay. When he said -- well, you said, Do you understand, he said, I don’t know. Did you delve into that any further, or did you just move onto the 10(

b) at that point? A Well, we just explained to him again, like, You’re going to be arrest for sexual exploitation and -- sexual exploitation and sexual interference. Q Okay. So are you saying you repeated that, or -- A Yeah. Yes, pretty much. Q Okay. And was there any further conversation about his understanding of that at that point? A At that point, no. We just moved onto the lawyer call. Q Okay. Okay. And did you have any difficulty understanding his answers when you asked him if he wanted to speak to a lawyer and

understood the police warning? A No. I -- I didn’t have no difficulty. [ 36 ] C.L. did not ask to speak to counsel after the exchange with Cst. Cote. He was lodged in cells, where he slept until later that morning, when Cpl. McLeod arrived to take a warned statement from him. There is no evidence that any other police officer spoke to C.L. or provided any additional information about the right to counsel during that time. [ 37 ] The warned interview of C.L. began at 10:32 a.m. It started with Cpl.

McLeod providing a secondary police caution to C.L., advising him that he was not obligated to repeat anything he had previously said to other police officers, and that anything he said from that point on may be used as evidence. Although some discussion was necessary to clarify that point, C.L. eventually voiced an understanding of it. Cpl. McLeod then took time to explain the nature of the charges that C.L. was facing and to confirm that he understood the general nature of the allegations against him.

Throughout that portion of the interview, C.L. spoke freely and indicated that he did not care what happened to him; his focus was on making sure that the person he believed had abused K.S. was brought to justice. Before delving into any discussion with C.L. about the substance of the allegations, Cpl. McLeod also spoke with C.L. about his mental disorders, including getting details about the nature of his diagnosis, his prescribed medication, and the fact that he had been unmedicated for some time. [ 38 ] The first, and only, time during the warned interview that any discussion took place between Cpl.

McLeod and C.L. about the right to counsel came approximately 21 minutes after the interview began. That discussion went like this: Cpl. McLeod: But we’re going to be talking to each other today, does that sound - - is that fair? C.L.: We’ll be chatting. Cpl. McLeod: Okay? C.L.: We’ll be chatting, but that’s about it. Cpl. McLeod: Ahm, when you were brought in and you were arrested and they asked if they, if you want to speak to a lawyer and you said you did not. C.L.: No. Cpl. McLeod: Okay? C.L.: I do not want to speak to a lawyer. Cpl. McLeod: Okay?

C.L.: If I were to speak to a lawyer, I know the one I’d speak to - - but I’m not going to bother her. [ 39 ] As these excerpts demonstrate, Cst. Cote’s evidence was that C.L. expressed a lack of understanding immediately after Cst. Cote asked him if he understood the information that he had just been provided concerning the right to counsel. Cst. Cote also testified that he, Cst. Cote, understood C.L.’s answers, but that was not the point in issue. The question the trial judge needed to determine was whether C.L. understood what Cst.

Cote had conveyed to him about the right to counsel and, in that respect, C.L.’s response to Cst. Cote was a clear and objective indication that C.L. did not understand . Notwithstanding C.L.’s equivocation, there was no evidence that Cst. Cote took any steps to clarify exactly what C.L. was saying he did not understand regarding the information he had been given about the right to counsel, or that any other police officer did anything that was aimed at rectifying that apparent misunderstanding.

The trial judge’s finding that there was “no evidence of [C.L.’s] understanding or lack thereof” in that respect stands in stark contradiction to the record. There was, in fact, direct evidence on that point.

With respect, the trial judge erred by not recognizing that and, because that error led her to conduct her analysis of the legal issue before her from a faulty factual footing, it is properly seen as palpable and overriding. [ 40 ] The jurisprudence is clear that, where a detainee provides a positive indication of uncertainty as to the content of the right to counsel, the informational duty has not been fulfilled and the police must provide the detainee with further and better information.

In such circumstances, the police cannot simply rely on a mechanical recitation of the right; they must do more to facilitate the detainee’s understanding ( Willier at para 31 ). In this case, C.L.’s response to Cst. Cote’s question about whether he understood the right to counsel was a positive indication of uncertainty, which occurred immediately after what can be fairly described as a mechanical recitation of the right to counsel information. In light of that, Cst.

Cote was required to do more to facilitate C.L.’s understanding, and he did not. [ 41 ] In addition to not personally following up on C.L.’s indication of a lack of understanding, there is also no evidence that Cst. Cote passed any information along to Cpl. McLeod to advise her that C.L. had expressed the uncertainty that he did regarding the right to counsel. And, when Cpl. McLeod conducted the warned interview, she provided no clarifying information to C.L. about that.

She simply asked C.L. to confirm what she had been told by other officers, namely, that he had not asserted his right to counsel at the time of his arrest. [ 42 ] The trial judge’s reasons, in my view, also demonstrate that she erred by failing to apply the correct legal test in determining whether C.L.’s rights under s. 10(

b) had been breached. In that regard, she appears to have focused her attention on the question of whether C.L. understood the charges he was facing and treated that as being largely determinative of whether he had made a valid and informed choice not to exercise his right to counsel. It is correct to observe, as the trial judge did by referencing the decision in R v Goodkey , 2015 BCCA 64 [ Goodkey ], that one of the purposes of the right protected by s. 10(

a) is to ensure a person knows why they have been detained or arrested so that they can meaningfully exercise the s. 10(

b) right to counsel. This does not mean, however, that a finding that a detainee has been properly informed of the reason for their detention in compliance with s. 10(

a) means there has also been compliance with s. 10(b). In that regard, I find that the trial judge’s reliance on Goodkey was misplaced, as the portion of that decision that she cited was part of a discussion addressing the question of whether the accused’s rights under s. 10(

a) had been violated in that case, not whether there had been police compliance with the informational duty under s. 10(b). [ 43 ] With respect, by approaching the question in the way she did, the trial judge overlooked the importance of the full breadth of the informational requirement of s. 10(b). A proper understanding of the informational component of the right to counsel recognizes that the detainee must be informed not only of their right to contact counsel, but also of the fact that the right may be exercised immediately and that there is an option whereby legal advice can be obtained free of charge . In circumstances such as the present case where there is

evidence that objectively speaks to a lack of understanding on the part of the detainee concerning the information conveyed to them bypolice about the exercise of the right to counsel, a judge must turn their mind to the question of whether the information provided by thepolice actually led to an informed decision on the detainee’s part to not assert the right. Reading the trial judge’s reasons in the Voir DireDecision as a whole, I am unable to conclude that she did that. [44] To reiterate, there was evidence before the trial judge that C.L. had clearly communicated to Cst.

Cote that he “did not know”whether he understood the information he had been provided regarding the right to counsel. Nothing further was done to clarify thatresponse or to facilitate C.L.’s understanding. That was a breach of the informational duty that s. 10(

b) places on the police. A failure tocomply with the obligation that must be met at the informational stage is automatically a breach of s. 10(b), meaning that C.L.’s right tocounsel was violated, without the need for him to establish that proper information would have caused him to act differently. This pointwas made by Schwann J.A. in Ector: [77] In Bartle, Lamer C.J.C. found a s. 10(

b) breach had arisen where the accused had not been advised of the existence andavailability of duty counsel and a toll-free number. Having established a breach of the informational duty, Lamer C.J.C. went on to discusswhether an accused bore the onus of demonstrating “anything different” would have occurred had the breach not occurred. Squarelyaddressing this point, he said: ... It follows, therefore, that where the informational obligations under s. 10(

b) have not been properly complied with by police, questionsabout whether a particular detainee exercised his or her right to counsel with reasonable diligence and/or whether he or she waived his orher facilitation rights do not properly arise for consideration. Such questions are simply not relevant under s. 10(b) (although they may bewhen it comes to considering whether the evidence obtained in the course of the Charter violation should be excluded under s. 24(2) ofthe Charter). The breach of s. 10(

b) is complete, except in cases of waiver or urgency, upon a failure by state authorities to properlyinform a detainee of his or her right to counsel and until such time as that failure is corrected. (198, emphasis added) [78] Chief Justice Lamer reiterated these comments in R v Pozniak, (SCC), [1994] 3 SCR 310. Similarly, in R vCarosella, (SCC), [1997] 1 SCR 80, the Supreme Court yet again confirmed the principle that a breach of s. 10(

b) rightsis complete when the police fail to discharge their informational obligations and that the accused’s subsequent conduct is irrelevant to thequestion of whether a breach occurred… [45] In my view, had the trial judge not made the factual error identified above, and had she applied the correct legal test, theconclusion that there was a violation of C.L.’s rights under s. 10(

b) was inevitable. C.L. had been arrested late at night and he expressed alack of understanding immediately after the standard information regarding his right to counsel had been conveyed to him. The policeofficers dealing with him were also aware that he suffered from a mental disorder and that he had not been taking his prescribedmedication. In those circumstances, the police had an obligation, as part of their informational duty under s. 10(

b) to inquire further and todo more to facilitate C.L.’s understanding of the right to counsel. They did not discharge that duty. Accordingly, the breach of s. 10(

b) wascomplete at that point. Moreover, the breach was not corrected by Cpl. McLeod simply asking C.L. to confirm, many hours later, that hehad decided not to speak to a lawyer. In that respect, C.L.’s statement that “If I were to speak to a lawyer, I know the one I’d speak to - -but I’m not going to bother her” is further evidence suggesting that he may still have been labouring under a misunderstanding about theimmediate availability of free-of-charge options such as legal aid duty counsel. [46] In the result, the trial judge’s finding that no breach was established must be set aside. E. Remedy 1.

Can this Court conduct the s. 24(2) analysis? [47] I turn now to the appropriate remedy. The trial judge found no violation of C.L.’s rights under s. 10(

b) and, as a result, she didnot consider whether his warned statement should be excluded from evidence under s. 24(2) of the Charter on that basis.

Where the trialjudge has not addressed s. 24(2), an appellate court may conduct its own analysis only if there is an adequate evidentiary record and thetrial judge has made the necessary findings of fact (R v Santos, 2022 SKCA 50 at para 43, 413 CCC (3d) 229; R v Pawlivsky, 2020 SKCA75 at para 25, 389 CCC (3d) 13). [48] Based on the trial record, I am satisfied that this Court is positioned to properly conduct the analysis under s. 24(2) in this case.The parties led extensive evidence on the voir dire, and, in my view, the trial judge made the factual findings necessary to permit thisCourt to assess and weigh the relevant considerations in the fashion required by R v Grant, 2009 SCC 32, [2009] 2 SCR 353 [Grant].Accordingly, there is no utility in referring this aspect of the matter back to the trial court for redetermination (see: R v Ali, 2022 SCC 1 atpara 11, 410 CCC (3d) 143; R v Spencer, 2014 SCC 43, [2014] 2 SCR 212 at para 75). 2.

Exclusion of evidence under s. 24(2) of the Charter – the governing principles [49] Section 24(2) provides that any evidence “obtained in a manner” that infringes or denies a Charter-guaranteed right or freedomshall be excluded if it is established that admitting the evidence would bring the administration of justice into disrepute. There are twocomponents to this. The first component is a threshold requirement; before s. 24(2) is engaged, the accused must establish that theevidence was “obtained in a manner” that breached the Charter.

This requirement will only be met if the breach and the obtaining of theevidence are connected temporally, contextually, or causally, or in some combination of the three. A remote or tenuous connection will notsuffice. The second component is evaluative in nature.

It asks whether, having regard to all the circumstances, admitting the evidencewould bring the administration of justice into disrepute (R v Beaver, 2022 SCC 54 at paras 94–96, 475 DLR (4th) 575 [Beaver]). [50] In some circumstances, the temporal, contextual, or causal connection between a Charter breach and the evidence obtainedmay be broken if the police make a “fresh start” by later complying with the Charter before the evidence is gathered or discovered.Subsequent Charter compliance, however, does not automatically mean the evidence will be admitted. As Jamal J., writing for the

majority of the Supreme Court explained in Beaver , “[t]he inquiry must be sensitive to the facts of each case” (at para 97). He went on to say: [99] In some cases, evidence will remain tainted by a Charter breach despite subsequent Charter compliance. For this reason, “[c]are should be taken in using the ‘fresh start’ label to resolve ‘obtained in a manner’ inquiries” (Paciocco, Paciocco and Stuesser, at p. 485).

Whether evidence was “obtained in a manner” is not determined by whether the state eventually complied with its Charter obligations, but instead is based on whether there remains a sufficient causal, temporal, or contextual connection between the Charter breach and the impugned evidence. In this way, the “fresh start” analysis fits comfortably within this Court’s holistic approach to whether evidence was “obtained in a manner” that breached the Charter . [ 51 ] It is important to bear in mind that s. 24(2) of the Charter is not an automatic exclusionary rule.

Evidence obtained in connection with a Charter breach will only be excluded where the accused establishes that, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute ( Beaver at para 117 ).

This is not a precise mathematical exercise but, rather, a qualitative determination ( Grant at paras 86 and 140 ; R v Harrison , 2009 SCC 34 at para 36 , [2009] 2 SCR 494; R v Tim , 2022 SCC 12 at para 98 , 412 CCC (3d) 147). [ 52 ] Determining whether the administration of justice would be brought into disrepute by admitting C.L.’s statement in this case requires consideration of the impact that its admission would have on long-term public confidence in the administration of justice, based on balancing the well-known three lines of inquiry set out in Grant , namely: (1) the seriousness of the Charter -infringing state conduct, (2) the impact of the breach on C.L.’s Charter -protected interests, and (3) society’s interest in the adjudication of the case on its merits ( Grant at para 71 ; see also R v Le , 2019 SCC 34 at paras 139–142 , 375 CCC (3d) 431, and Lafrance at para 90 ). [ 53 ] Because this analysis is being conducted on appeal, deference is owed to the trial judge’s findings of fact to the extent that they are untainted by error, but no deference is owed to her application of the law to the facts ( Grant at paras 43 and 86 ; Beaver at para 118 ; Lafrance at para 91 ; R v Loewen , 2018 SKCA 69 at para 67 , 365 CCC (3d) 91). 3.

The principles applied a. The seriousness of the Charter- infringing state conduct [ 54 ] The first line of inquiry under s. 24(2) concerns the Charter -infringing state conduct and asks whether it is so serious that the court needs to dissociate itself from it. As Jamal J. stated in Beaver : [120]…This inquiry requires the court to situate the Charter -infringing conduct on a scale of culpability. At one end of the scale is conduct that constitutes a wilful or reckless disregard of Charter rights, a systemic pattern of Charter -infringing conduct, or a major departure from Charter standards.

At the other end of the scale are less serious Charter breaches, including breaches that are inadvertent, technical, or minor or those that reflect an understandable mistake. The more severe the state’s Charter -infringing conduct, the greater the need for courts to disassociate themselves from it. (citations omitted) [ 55 ] The breach of C.L.’s s. 10(

b) rights in this case was serious. Although the breach was not intentional, it cannot be properly characterized as merely technical or inadvertent. The right to counsel is a well-known, fundamental right, and is one that cannot be meaningfully exercised unless the detainee understands how they may do so in the relevant context. In that respect, when C.L. was asked if he understood the right to counsel information that had been communicated by Cst. Cote, he expressed a clear uncertainty by saying “I don’t know”. On the face of things, there was an obvious way that Cst.

Cote could have addressed that apparent lack of understanding, namely, by asking a follow-up question such as “what do you mean by that” or “what are you uncertain about”. But, instead, Cst. Cote simply proceeded to restate to C.L. the reason for his arrest and made no other attempt to facilitate C.L.’s understanding of the right to counsel. There was no urgency to the situation at that point, as nobody was in physical danger, there was no basis to be concerned that evidence might be lost if matters did not proceed quickly, and C.L. was not being difficult. On top of all of that, Cst.

Cote was aware that C.L. suffered from a mental disorder that might affect his thoughts or perceptions in some fashion. [ 56 ] Considering all those circumstances, I conclude that the breach in this case was one that was careless and demonstrates a lack of regard for Charter standards. In the result, I find that the first Grant factor pulls strongly towards exclusion of the evidence. b. The impact of the breach on C.L.’s Charter -protected rights [ 57 ] The second line of inquiry under s. 24(2) considers the impact of the breach on the accused’s Charter -protected rights.

As noted in Beaver : [123] …This inquiry involves identifying the interests protected by the relevant Charter right and evaluating the extent to which the Charter breach “actually undermined the interests protected by the right” ( Grant , at para. 76 ). As with the first line of inquiry, the court must situate this impact on a spectrum.

The greater the impact on the accused’s Charter -protected interests, the greater the risk that admission of the evidence would suggest that Charter rights are of little actual avail to citizens, thus breeding public cynicism and bringing the administration of justice into disrepute suffering from In those circumstances (see Grant , at paras. 76-77 ; Le , at para. 151; Tim , at para. 90 ; Lafrance , at para. 96 ). [ 58 ] In my view, C.L.’s Charter -protected interests were seriously impacted by the breach in this case.

Without the benefit of legal advice, he made highly incriminating admissions that bolstered the Crown’s case. In saying this, I recognize that the trial judge found C.L.’s statement to have been voluntarily made, in the sense that it was the product of an operating mind and not the result of oppressive conduct or inappropriate trickery on the part of the police, and that she also found he knew he did not have to speak to police and that there may be detrimental consequences to him if he did so.

[ 59 ] However, against that, it must also be observed that the trial judge accepted the evidence of Dr.

Semrau, which was to the effect that “at the time of his statement to the police on May 6, 2018, C.L. was suffering from a set of serious chronic mental illnesses” and that “in the weeks prior to the police statement, C.L.’s mental health had deteriorated” which led to him being “very likely significantly impaired in his capacity … to respond to questions (or choose not to respond) in a fashion which reflected an accurate appraisal of his legal jeopardy and his rights in providing information to the police” ( Voir Dire Decision at paras 16–17).

The trial judge also found that “C.L.’s ability to rationally consider whether he was making choices in his own best interest was impaired by his psychosis during the time of the interview” (at para 23), and that he “may not have had sufficient capacity during the interview to understand that it would be in his best interest to speak to a lawyer, to remain silent and to refuse to speak with police” (at para 36). [ 60 ] In light of all of that, I view the impact of the breach on C.L.’s Charter -protected rights as serious, notwithstanding the fact that he was willing to engage in a frank discussion with Cpl.

McLeod and to provide information that he recognized would incriminate himself, on the basis of a hope that doing so would lead to the apprehension of another person. Given the nature of the jeopardy he was facing, and the evidence concerning his mental state, it is evident that C.L. was in a position where legal advice would have assisted him. Because of the breach of his s. 10(

b) rights, he made an uninformed decision to forego the opportunity to avail himself of that advice. That situation was not rectified by Cpl. McLeod before the interview was conducted and, accordingly, the causal and contextual connection between the breach and the obtaining of the evidence was not severed. In other words, it cannot be said that the evidence would have been obtained regardless of the breach. [ 61 ] In the result, I conclude that consideration of this factor also pulls strongly towards exclusion of the evidence. c.

Society’s interest in an adjudication on the merits [ 62 ] The third line of inquiry under s. 24(2) asks whether the truth-seeking function of the trial process would be better served by the admission or exclusion of the evidence ( Grant at para 79 ). Relevant to this branch of the analysis are such things as the reliability of the evidence, the importance of the evidence to the prosecution’s case and the seriousness of the offence at issue ( Grant at paras 79–84 ; Beaver at para 129 ) . [ 63 ] This line of inquiry strongly supports admission of C.L.’s statement.

The offence with which C.L. was charged was undoubtedly serious, as it involved an allegation of having sexual contact with a 6-year-old child. C.L.’s statement was important to the Crown’s case, and it is evidence that the trial judge found to be reliable. d. Final balancing [ 64 ] In Beaver , Jamal J. provided the following

summary of the approach to be taken to the final step in the s. 24(2) analysis: [133] The final step in the s. 24(2) analysis involves weighing each line of inquiry to determine whether admitting the evidence would bring the administration of justice into disrepute. This balancing has a prospective function: it aims to ensure that evidence obtained through a Charter breach does not cause further damage to the justice system.

It is also societal in scope: its goal is not to punish the police but to address systemic concerns involving the broad impact of admitting the evidence on the long-term repute of the justice system (see Grant , at paras. 69-70 and 85-86 ; Le , at para. 139; Tim , at para. 98 ). [134] When undertaking this weighing exercise, “it is the cumulative weight of the first two lines of inquiry that trial judges must consider and balance against the third line of inquiry” ( Lafrance , at para. 90 (emphasis in original)). “[W]hen the two first lines, taken together, make a strong case for exclusion”, the third line of inquiry “will seldom tip the scale in favour of admissibility” ( Lafrance , at para. 90 ).

The third line of inquiry “becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence” ( R v McGuffie , 2016 ONCA 365 , 131 O.R. (3d) 643, at para. 63 , per Doherty J.A.; see also R v Chapman , 2020 SKCA 11 , 386 C.C.C. (3d) 24, at paras. 125-26 and 130 ). It is possible that admitting evidence obtained by particularly serious Charter -infringing conduct will bring the administration of justice into disrepute, even if the conduct did not have a serious impact on the accused’s Charter - protected interests ( Le , at para. 141).

But where the cumulative weight of the first two lines of inquiry is overwhelmed by a compelling public interest in admitting the evidence, the administration of justice will not be brought into disrepute by its admission. [ 65 ] In C.L.’s case, the first two lines of inquiry, taken together, make a strong case for exclusion of his statement. The breach was serious, as was its effect on C.L.’s Charter- protected interests. Combined, those factors tilt the balance heavily towards exclusion.

Considering all of the circumstances, I am not persuaded that they are overwhelmed by a compelling public interest in admitting the evidence and, accordingly, I am satisfied that its admission would bring the administration of justice into disrepute. [ 66 ] I would therefore exclude C.L.’s statement from evidence. Accordingly, the conviction cannot stand, as I am unable to conclude that the verdict would necessarily have been the same in the absence of the inculpatory evidence contained in C.L.’s statement.

Having reached that conclusion, it is unnecessary to address C.L.’s second ground on the conviction appeal, or the sentence appeal. IV. Conclusion [ 67 ] For the foregoing reasons, I would allow the appeal, set aside the conviction, and order a new trial. The sentence appeal is moot. “Kalmakoff J.A.” Kalmakoff J.A. I concur. “Tholl J.A.” Tholl J.A. I concur. “Drennan J.A.” Drennan J.A.