R. v. Smith
Her Majesty the Queen, Respondent, and
Andrew Derek Smith and Rebecca Elizabeth Welk,
 O.J. No. 963
153 C.R.R. (2d) 57
73 W.C.B. (2d) 550
Court File No. CR-06-637
Ontario Superior Court of Justice
J.S. O’Neill J.
Heard: February 12-15, 2007.
Judgment: March 5, 2007.
Constitutional law — Canadian Charter of Rights and Freedoms — Legal rights — Right to retain and instruct counsel without delay — Procedural rights — Protection against self-incrimination, right to silence — Remedies for denial of rights — Specific remedies — Exclusion of evidence — Application by Smith to exclude statements made by him on grounds they were involuntary and taken in breach of Smith’s right to counsel allowed — No breach of right to counsel when officer questioned Smith as part of general investigation before arrest — Smith’s right to counsel and right to silence breached when Smith asked to provide statements before arrangements made to call lawyer.
Criminal law — Evidence — Admissibility — Prejudicial evidence — Confessions and statements by the accused — Application by Smith to exclude statements made by him on grounds they were involuntary and taken in breach of Smith’s right to counsel allowed — Statements made by Smith when he was clearly intoxicated and confused and statements made when Smith suffering from withdrawal and in need of medical attention were not voluntary — Statements excluded where officer falsely told Smith that evidence placed him at crime scene.
Application by Smith to exclude statements made by him on grounds they were involuntary and taken in breach of Smith’s right to counsel — Break and enter occurred and person was shot and killed — Officer saw Smith walking around parking lot — Officer approached Smith and Smith told him he was going home — Officer noted that Smith was walking in wrong direction and appeared intoxicated — He arrested Smith for public intoxication and advised him of right to counsel — Smith slept in police station and officer woke him up in the morning — Officer noted that Smith looked groggy and unsteady on his feet — Officer arrested Smith for murder and reminded him of right to counsel — Smith asked for cigarette and advised officer he had consumed Valium pills and drank alcohol the previous evening — Smith spoke to counsel — Smith was interviewed by officer later that afternoon and admitted he could vaguely remember having been arrested — Smith asked to speak to lawyer several times during interview — Officer told Smith that witnesses saw him at crime scene — Smith appeared ill and asked for Valium — Officer arranged for medical assistance and subsequently took Smith to hospital — HELD: Application allowed — Crown failed to prove beyond reasonable doubt that statements made by Smith at time of arrest were voluntary, as Smith was clearly intoxicated and confused — Statements made in morning interview were not voluntary, given Smith’s appearance and physical condition that suggested that he was still intoxicated — Statements made in afternoon interview were not voluntary because Smith was still confused, was mainly preoccupied with procuring Valium, was manifesting symptoms of withdrawal and was in need of medical attention — Statements made in afternoon also excluded because officer told Smith that evidence placed him at crime scene when no such evidence existed — Prejudicial effect of statements outweighed probative value — Officer’s questions were very long and Smith’s answers very short and any editing of transcript would have rendered remaining material meaningless and confusing to jury — Smith’s right to counsel not breached when officer initially approached him, as questioning of Smith was part of general investigation of crime and no evidence that Smith felt detained at that time — Statements made by Smith during morning interview before speaking to lawyer were made in breach of Smith’s right to counsel — In afternoon session, Smith asked to speak to counsel on several occasions but officer did not oblige — Officer’s conduct in afternoon session exceeded legitimate attempts at persuasion and breached Smith’s right to seek advice of counsel and right to silence.
Statutes, Regulations and Rules Cited:
Canadian Charter of Rights and Freedoms, 1982, s. 10(a), s. 10(b), s. 24(a)
Edward A. Carlton, for the Respondent.
Jennifer Penman, for the Applicant, Smith.
Christopher C. Hanson, for the Applicant, Welk.
Pretrial Rulings in Relation to Charter and
J.S. O’NEILL J.:–
A – Introduction
1 Shortly before 2:10 a.m. on November 27, 2005, in the Town of Parry Sound, an intruder used the butt of a rifle to break the window of the front door at 4 Burd Street. The intruder then reached in and opened the front door and moments later, shot and killed James Smith. Sylvia Smith, James Smith’s mother, was also injured by the intruder. She sustained a fracture to her left hip and a wound to her right hand.
2 At approximately 7:18 a.m. on November 27, 2005, Andrew Derek Smith was arrested for first degree murder. That charge was subsequently changed to second degree murder on the person of James Smith. Rebecca Elizabeth Welk is charged with manslaughter in the death of the victim. Both accused are also charged with additional offences.
3 The accused have elected trial by judge and jury. Pretrial motions and applications were argued before me at Parry Sound during the week of February 12, 2007. The motions relate to the voluntariness and the admissibility of utterances and statements made by Andrew Derek Smith to three police officers on November 27, 2005, and as well, issues relating to the alleged infringement and breach of his s. 10(a) and 10(b) Charter rights. These reasons outline my findings and my ruling with respect to these issues.
B – The Pretrial Issues
4 The motions and application before the court seek to answer the following questions:
- Were the statements and utterances of Andrew Derek Smith made to officers Robert Hall, Jeff Betts, and Chris Loam, during three distinct time periods on November 27, 2005, voluntary, and thus admissible as evidence at trial?
- Were Andrew Smith’s s. 10(a) and s. 10(b) Charter rights breached and infringed, and if so, should the statements made by this accused to the investigating officers be excluded?
C – Background Information
- The Initial Arrest by Constable Hall
5 Constable Hall gave oral evidence at the hearing of the motions and the application. He was called from his home at 3:37 a.m. on November 27, 2005, to the West Parry Sound O.P.P. Detachment. He arrived at 4:05 a.m. and he was required to immediately attend to crime scene security at 4 Burd Street.
6 At or approaching the scene, he received a call in his vehicle about a suspicious person who had been seen at the train station. He drove toward the station on Church Street and just north of the station, in the Colour Centre Paint Store parking lot, he noticed a male person. He exited his motor vehicle and started speaking to this person. The person identified himself as Andrew Smith. Constable Hall determined in speaking with this person that he was intoxicated and that there was an odour of cannabis. He asked the male person where he was coming from and the person stated “I am heading home.” The person indicated that he resided at 14 Parry Sound Drive but Constable Hall indicated that this person seemed to be going in the opposite direction and that he may have expressed confusion between 14 Parry Sound Drive and 14 Parry Sound Road.
7 Constable Hall arrested Andrew Smith for public intoxication, handcuffed him and placed him in the rear of the cruiser. The arrest was completed within one minute of his coming upon Mr. Smith in the parking lot.
8 At approximately 5:00 a.m., Constable Hall left the paint store parking lot and arrived at the O.P.P Detachment at 5:02 a.m. While on route, Constable Hall asked Mr. Smith whether he was at the train station and he responded “Yes – I saw a $10 bill near a car.” The accused indicated that he had been at the Old Royal Hotel and that he was heading home.
9 Crown Counsel is seeking to tender and introduce as evidence three statements or utterances made by Mr. Smith: his name, his address, and his statement to the effect that he was heading home.
- The Statements Made to Acting Detective Sergeant Betts
10 Acting Detective Sergeant Betts testified that he was in the interview room at the West Parry Sound O.P.P. Detachment with Richard Smith, one of the occupants of 4 Burd Street, when Andrew Smith was brought into the detachment by Constable Hall. Detective Sergeant Betts had no immediate dealings with Andrew Smith. At 7:14 a.m., he entered the Duty Counsel or Interview Room to speak with Andrew Smith. Mr. Smith was sleeping in a fetal position on the floor. Officer Betts asked the accused to wake up but he received no response. He shook him and Mr. Smith opened his eyes. Officer Betts told the accused to get up and Mr. Smith stood on his feet. He appeared to be somewhat groggy, unsteady on his feet, he smelled of dried marijuana and he had an odour of alcohol.
11 Officer Betts and the accused left the room and walked a very short distance to the audio-video room. Officer Betts closed the door and commenced interviewing Mr. Smith. The interview started at approximately 7:17 a.m. and it concluded at 7:34 a.m. A tape of the interview was shown in court and a transcript, Exhibit C, was entered on the voir dire.
12 At page two of the transcript Detective Betts stated:
… right now you’re under arrest for first degree murder. It is my duty to inform you that you have the right to retain and instruct counsel without delay. Do you know what counsel is?
13 Later, at page three of the Interview Report, Detective Betts stated:
It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You have the right to free advice from a legal aid lawyer. If you are charged with an offence Andrew, you may apply to the Ontario Legal Aid Plan for assistance. There’s a one, eight-hundred, two, six, five, zero, four, five, one is a toll free number that will put you in contact with free legal aid counsel lawyer for free legal aid advice right now. Do you understand this?
14 During the interview, Mr. Smith indicated that he wished to speak to his own lawyer. He asked for a cigarette, he indicated that he had consumed approximately 30 Valium earlier in the evening and that he had also drank alcohol.
15 Detective Betts contacted Mr. Michael Thurston. The accused left the interview room at 7:26:35, and returned to the interview room at 7:32:20. Within this time period, he spoke with his lawyer.
16 The accused declined to submit to a breathalyzer test to determine the amount of alcohol in his system. At page seven of the seven page transcript, Andrew Smith stated:
Is there any chance of a cigarette though, I want one so bad, like (inaudible) on my nerves, it’s a stressful situation, I just (inaudible – speaking simultaneously).
17 The interview ended at 7:34 a.m.
- The Interview by Detective Sergeant Chris Loam
18 Sergeant Loam commenced his formal interview of the accused at 2:25 p.m. on November 27, 2005. The evidence given on the hearing before me demonstrates that between approximately 7:34 a.m. and 2:25 p.m., on November 27th, the following events occurred, vis-à-vis Andrew Smith:
- A gunshot residue kit sampling, photographs, and fingerprinting were carried out. This process concluded at approximately 8:22 a.m. Detective Betts testified that he had no difficulties taking photos or fingerprinting Andrew Smith.
- Mr. Smith was taken outside where he had two cigarettes at approximately 8:22 a.m. Sergeant Betts testified that the accused was walking better at this time than he was at 7:14 a.m.
- Constable Bryan Holloway testified that he was assigned to conduct a prisoner watch of Andrew Smith. When Constable Holloway took Andrew Smith outside for two cigarettes, he testified that the accused had “a tired walk.” He testified that the accused had the look of someone “worn out.”
- Mr. Smith slept in cell number one from approximately 8:31 a.m. to 10:20 a.m. At that time, he was woken up and provided breakfast. Thereafter, he went back to sleep until 12:36 p.m.
- Constable Holloway woke the accused at 12:36 p.m. and took him to the Duty Counsel Interview Room. He spoke with his lawyer in this room, between approximately 12:36 and 12:43 p.m. As he was being escorted back to his cell, he asked for a smoke break and a lunch but none were provided.
- At 1:57 p.m., Constable Holloway entered the cell with Sergeant Chris Loam. Sergeant Loam asked the accused a series of questions and Constable Holloway took notes. The Crown is not seeking to introduce as evidence any of the statements made during this time period, in the cell. Between 1:57 p.m. and approximately 2:01 p.m., Mr. Smith indicated the following to Sergeant Loam:
- He had not consumed much alcohol prior to his arrest.
- He had taken valium, “weed” and cocaine.
- He had taken approximately thirty valium
- He felt “ok”
- He indicated a need for a cigarette
- On leaving the jail cell he stated: “Valium makes me sleep but when I’m awake, I’m fine.”
- At approximately 2:29 p.m., Andrew Smith asked Constable Holloway for a cigarette.
- Upon removing the accused from his cell, Constable Holloway provided him with some cigarettes and a lighter and then escorted him to the video interview room.
- Constable Holloway testified that during the four minute conversation between 13:57 and 14:01, Andrew Smith appeared “tired – worn out look.”
19 Sergeant Loam testified that he commenced his interview and questioning of the accused at approximately 2:25 p.m. There was a break in the interview when Mr. Smith spoke with his lawyer, by telephone, at approximately 4:19 p.m. The interview ended at approximately 4:49 p.m.
20 A video/audio of the interview was shown in court and the transcript of the interview was filed as Exhibit F at the hearing. I point out below some of the facts and circumstances relating to the interview, which are either captured in the transcript itself, or reiterated or explained by Sergeant Loam who gave evidence at the hearing:
- Mr. Smith did not receive a formal caution, nor were his rights formally read to him by Sergeant Loam.
- Sergeant Loam and Mr. Smith ate ordered-in food together, during the opening minutes of the interview process. The accused, accordingly, had lunch between approximately 2:30 and 2:45 p.m. After his lunch, he was able to have a cigarette in the interview room. He had this cigarette nine pages into the seventy-one page interview transcript.
- Sergeant Loam spoke to Detective Betts when he arrived at the detachment at 10:50 a.m. and he was advised that Mr. Smith had been arrested at 5:00 a.m., rearrested on the murder charge at approximately 7:20 a.m., when at that time his formal Charter and legal rights were read to him.
- Sergeant Loam testified that during the four minute interview in the cell, he did not smell alcohol, but he noted that Mr. Smith’s speech was slow. Otherwise, the two of them could “understand one another.”
- At page two of the formal interview, Mr. Smith was asked whether he remembered the short interview with Sergeant Loam a few minutes ago. He responded at page two: “… well, vaguely but I was pretty groggy, so …”. Sergeant Loam testified that for the first forty-five minutes of the interview, Mr. Smith did not appear to be in physical distress. However, at approximately 3:42 p.m., Mr. Smith stated: “… I need some Valiums or something … Can I see somebody to get something, or some …”
- During the interview, the accused told Sergeant Loam that he had taken thirty Valium pills the evening before, along with beer, cannabis, cocaine, and some other alcohol. At several points throughout the interview, as will be discussed below, Mr. Smith indicated a desire to again speak with his counsel.
- The accused was shown crying at various stages throughout the interview, beginning at approximately page twenty-seven of the seventy-one page transcript and then more frequently around and after 3:28 p.m.
- At approximately 3:34 p.m., Mr. Smith blew his nose and Sergeant Loam testified that “wet, blue spaghetti like noodles” started coming out of Mr. Smith’s nose. Sergeant Loam testified that he did not know what this was. Mr. Smith indicated on the transcript that there was still Valium in this substance and that “… that’s how much Valium I did last night.”
- At approximately 3:44 p.m., the accused was asked: “So what would happen, what happens on a day when you don’t take anything? What happens then?” Mr. Smith answered: “It’s startin’ right now” to which Sergeant Loam responded “What’s that the shakes?” In answer to this question Mr. Smith stated: “Well I’ll start to shake, I’ll puke, I, I’ll probably have to ask for a bucket because I’ll be sitting on the toilet fuckin’ (inaudible) …”
- At approximately 4:06 p.m. the accused asked for another cigarette. Shortly thereafter, at approximately 4:08 p.m. he stated: “Yeah. Oh fuck I need a pill”.
- Mr. Smith was alone in the interview room from 4:09 to 4:19 p.m. Between 4:19 and 4:21 p.m., he left the room and was able to briefly speak with his lawyer.
- Sergeant Loam testified that when he left the room just before 4:09 p.m., he did so to make arrangements for the accused to speak to his lawyer, and also to arrange for medical attention, if necessary. Sergeant Loam re-commenced questioning the accused at approximately 4:32 p.m. Questioning continued until the end of the interview at approximately 4:49 p.m.
21 The accused was taken to the West Parry Sound Health Centre at approximately 4:50 p.m. and he returned from the hospital just after 6:00 p.m. Detective Betts testified that he spoke with Mr. Thurston at approximately 4:19 p.m. just before the accused spoke with his lawyer. Mr. Thurston indicated to Detective Betts that he had instructed his client not to provide any more statements. Detective Betts also indicated that when Mr. Thurston attended at the Police Department between approximately 12:36 p.m. and 12:43 p.m., he also indicated that he advised his client not to provide any statements.
22 Detective Betts drove the accused to the hospital. He said that mucus was pouring out of the accused’s nose and that his pupils were dilated. He was in pain and discomfort at the hospital on account of withdrawal symptoms. At the hospital, a physician prescribed some medication and that upon returning from the hospital, it was apparent to Detective Betts that the medication had brought immediate relief of symptoms such that Mr. Smith’s “condition was opposite”.
23 It is Crown counsel’s position that the interview with Sergeant Loam is admissible, as the statements made by the accused pass the test of legal voluntariness, and that in addition, the statements are not subject to exclusion based on any charter breaches or infringements.
D – Analysis and Findings
- The Issue of Voluntariness
24 The onus rests upon the Crown to prove beyond a reasonable doubt that the statements and utterances made or given by the accused to the three police officers in question were given voluntarily. In the decision Clarkson v. The Queen (1986) 25 C.C.C. (3d), 207 (S.C.C.), the Crown sought to introduce a statement made by the accused to the police shortly after the arrest. At the time of her arrest the accused was in a highly intoxicated state and very emotional. The accused was taken to the police station along with her aunt and given the customary police caution and informed of her right to counsel. When her aunt on several occasions attempted to persuade the accused to stop answering questions until she had a lawyer present the accused stated that there was “no point” and that she did not need the help of a lawyer. The trial judge excluded the statement on the basis that by reason of her intoxicated state she could not have appreciated the consequences of making the statements and the use to which they could be put. The accused was acquitted at trial. The New Brunswick Court of Appeal ordered a new trial. The Supreme Court of Canada allowed the accused’s appeal and restored the acquittal.
25 At pp. 216-217 Wilson J. stated:
It seems to me that if it is the concern over fair treatment of an accused which must prevail, then the test of awareness of the consequences as espoused by Beetz J. in Horvath, supra,  2 S.C.R. 376, must displace the more restrictive “operating mind” test as the appropriate standard against which to measure the admissibility of intoxicated confessions … In order to avoid the problem of a person unwittingly inculpating herself in a criminal offence, the police must necessarily hold off their interrogation until their suspect has become sober enough to appreciate the consequences of making a statement. On the other hand, if the paramount concern underlying the admissibility of evidence is perceived as being to probe the truth of the facts in issue without too much regard for the fairness of the adjudicative process, then the “operating mind” test adopted by Angers J.A. in the court below might be viewed as acceptable … It is perhaps entirely appropriate then that the common law has left the task of balancing these two concerns to the discretion of the trial judge who has the unique advantage of hearing the entire body of evidence and who can consequently best assess both the probative value and the prejudice to the accused in the over-all context of the case.
26 The leading case in relation to confessions, and the admissibility of evidence secured as a result of police questioning, is the decision R. v. Oickle (2000) 147 C.C.C. (3d) 321 (S.C.C.). Portions of the head note and summary from this decision state as follows:
The confessions rule is concerned with voluntariness,
broadly defined. A predominant reason for this concern is
that involuntary confessions are more likely to be
unreliable. The confessions rule should recognize which
interrogation techniques commonly produce false
confessions so as to avoid miscarriages of justice.
In defining the confessions rule, it is important to keep
in mind its twin goals of protecting the rights of the
accused without unduly limiting society’s need to
investigate and solve crime. There is a need to be
sensitive to the particularities of the individual
suspect that may render him unable to confess
voluntarily. Presenting a suspect with entirely
fabricated evidence creates the danger that it will
either persuade the susceptible subject that he did
indeed commit the crime, or at least convince the suspect
that any protestations of innocence are futile.
Finally, threats and promises may convince a suspect that
in spite of the long-term ramifications, it is in his
best interest in the short and immediate term to
confess … A confession that is not voluntary will
often, although not always, be unreliable.
The application of the rule will by necessity be
contextual and require consideration of all the relevant
27 With these important legal principles in mind, I now turn to a discussion relating to the voluntariness of the three sets of statements and utterances provided by Mr. Smith to the police.
- Constable Hall
As stated in the Oickle case, supra, at p. 16, “the confessions rule is concerned with voluntariness, broadly defined.” At p. 18, Justice Iacobucci stated:
While its overriding concern is with voluntariness, this concept overlaps with reliability. A confession that is not voluntary will often (though not always) be unreliable. The application of the rule will by necessity be contextual.
It is to be recalled that in answer to a question asked later in the day by Sergeant Loam, the accused indicated: “I only vaguely remember being arrested.”
28 I am not satisfied beyond a reasonable doubt that the statements and utterances made by the accused to Officer Hall prior to or concurrently upon his arrest in the parking lot at approximately 5:00 a.m. were voluntary, and thus admissible. I come to this conclusion for several reasons. Firstly, Officer Hall arrested the accused for public intoxication. The accused, in answer to a question as to where he in fact resided, appeared to express confusion or doubt about his real address to Officer Hall. In Oickle, the court at p. 22 reviewed certain aspects of the confessions rule, taken from the decision R. v. Whittle (1994), 92 C.C.C. (3d) 11, and stated as follows:
Briefly stated, Sopinka J. explained that the operating mind requirement “does not imply a higher degree of awareness than the knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment.”
29 Having regard to Officer Hall’s observations at 5:00 a.m., and as well, what transpired in relation to the accused between 5:00 a.m. and 5:00 p.m., I have strong doubts as to whether or not the statements and utterances made by Andrew Smith to Officer Hall were made under reliable circumstances. Accordingly, I rule that they are involuntary, in law, and inadmissible for the purposes of trial.
- Acting Detective Sergeant Betts:
30 Mr. Smith was sleeping in a fetal position on the floor, at 7:14 a.m., when Acting Detective Sergeant Betts attempted to wake him. Officer Betts told the accused to get up and when he stood on his feet, Mr. Smith appeared to be groggy, unsteady on his feet and smelling of alcohol and marijuana.
31 I also conclude that the Crown has not proved beyond a reasonable doubt that the statements made by the accused to Sergeant Betts were voluntary and thus admissible.
32 The formal caution and rights to counsel were read by Detective Betts to the accused at the top of page three of the seven page transcript. At page four, in answer to the question “Is there anything you would like to say?” The accused stated: “Pffffff … What’s to say, can I have a cigarette please, like just like do you have a cigarette, anything, (inaudible) … for a fuckin’ smoke.”
33 The accused’s head appeared to be bowed to one side, at various points throughout the seventeen minute interview. At times he appeared to be mumbling or speaking inaudibly. In or about this period of time, Constable Holloway noted that the accused had the look of someone “worn out.”
34 Having regard to the time of the interview, Mr. Smith’s appearance and physical condition, his heightened and overarching concern to have a cigarette, and the time during the interview when the caution and rights to counsel were read to him, I am left in doubt as to whether the accused’s statements were voluntary. Accordingly, they are ruled inadmissible.
- Detective Sergeant Chris Loam
35 In accordance with the legal principles set out in the Oickle decision, supra, I conclude that for a number of reasons, the audio/video statement given by Andrew Derek Smith to Sergeant Loam was not voluntary, and must be excluded as evidence at any forthcoming trial. I come to this conclusion for various reasons, which I set out below:
Withdrawal and Medical Issues
- At page two of the formal interview, the accused was asked whether he remembered the short interview in the cell a few minutes earlier. He responded: “… well, vaguely but I was pretty groggy, so …”.
- At approximately 3:42 p.m., the accused indicated that he needed “some Valiums or something … Can I see somebody to get something, or some …”.
- By 3:34 p.m., it would have been apparent to Sergeant Loam that the accused was manifesting physical signs of withdrawal symptoms, arising from his ingestion of Valium pills.
- Sergeant Loam described the mucus like material coming from Mr. Smith’s nose as “wet, blue spaghetti like noodles.”
- By approximately 3:44 p.m., Mr. Smith indicated to Sergeant Loam that he was beginning to suffer from ‘the shakes’ and that he might be sick.
- By 4:06 p.m., the accused indicated that he required a pill.
- By 4:09 p.m., when Sergeant Loam left the interview room, he acknowledged that he did so to make arrangements for Mr. Smith to speak to his lawyer, but also to arrange for medical attention if necessary.
- It is apparent from watching the video and reviewing the words spoken by Mr. Smith that he was suffering from withdrawal symptoms throughout a good portion of the interview.
- The accused’s symptoms were such that Detective Betts noted that mucus was pouring out of his nose and that his pupils were dilated on the trip to the hospital. Mr. Smith was prescribed medication to deal with his symptoms.
36 The above noted withdrawal symptoms and the effects which they had upon the accused would, under the Oickle analysis, fall under the category of oppression or oppressive circumstances. At paragraph 58 of Oickle, it is stated:
Oppression clearly has the potential to produce false confessions. If the police create conditions distasteful enough, it should be no surprise that the suspect would make a stress-complaint confession to escape those conditions.
The police did not create these conditions. They existed and they were present but for more than two hours, the accused was exposed to questioning, and not provided any medical attention when he was clearly manifesting serious symptoms of withdrawal.
37 The lengthy interview and the statements given to Sergeant Loam must also fail the test of legal voluntariness based on the use of non-existent evidence at various stages throughout the interview process. The intruder was not identified by any of the occupants of the home at 4 Burd Street. Nevertheless, at various points throughout the interview, Sergeant Loam suggested or alluded to the fact that there were identification witnesses who could place Mr. Smith in the home. Some examples of this technique can be found at the following pages in the transcript:
- Page 14 – Sergeant Loam – “So why is it a struggle okay. That’s up to you to decide, ’cause I mean you gotta realize there’s two living witnesses okay that put you in the house okay. Two people that do that. That’s before the police pick you up okay, within a few house of it, or a couple hours of it, alright.”
- Page 40 – Sergeant Loam – “But we know that you’re there and we know you’re the guy that comes in with the guy to start this whole thing. That we know, okay, we know that this guy gets shot, okay. That’s, like I say we’re all past that, like I say these, like I say these people know you, you know them okay, it’s one of those things, and when we get back they said like take us even further back Andrew.”
- Page 48 – Sergeant Loam – “Like I say, at the end of the day Andrew, the evidence puts you there, okay.”
- Page 52 – Sergeant Loam – “Now you and I spent a lot of time, okay, talking about what happened at ma’s house, okay, just this morning and this afternoon, it’s afternoon. Uhm and we talked about, uhm, I talked to you about what the evidence is, okay, I talked to you about her and the son that can identify you and that you’re out numbered …”
- Page 67 – Sergeant Loam – Uhm, I’ve talked to you earlier about putting the gun in your hand and putting you at the scene just through, just through evidence, by them seeing you there and, and ah, the stuff, the washings they did with your hands there today so …”
There are points during the interview where Sergeant Loam connected his allegations of identification evidence with the fact that the accused may have suffered from blackouts, and may not have recalled being in the house at all. As the interview process continued, the accused began crying more frequently. He appeared to begin crying at page twenty-seven of the seventy-one page transcript and he is shown crying on a number of occasions after that. As the interviewer continued to suggest that Ma Smith’s injuries might be more serious than at first reported, the accused appeared to become convinced, without remembering, that he may have caused great harm to her. This is reflected in some of the following statements made by him:
- Page 31 – Detective Sergeant Loam – “Okay. Uhm, alright, well like I say we’ll, I will find out, my understanding is that ah Ma’s not having her surgery ’til tomorrow. When she has it done then we’ll deal with that. We’ll deal with her down the road. (inaudible) … But the, the intent, or of me talking with you isn’t to, wasn’t to say oh my God, you’re worried about Ma, and if somethin’ happens, now that’s not, like talking to (inaudible – speaking simultaneously).”
Andrew. D. Smith – “Oh God please (inaudible – speaking simultaneously) …”
- Page 41 – Detective Sergeant Loam – “You know what I mean, no, but do you know what I mean? So obviously we know last night you weren’t thinking very clear, your head wasn’t on straight, you’re on some drugs and some alcohol, and you went into a place that you know the people. To an extent you probably have some respect for, for and like them, so why in the hell …”
Andrew D. Smith – “Ma’s is, is the fuckin’ greatest woman on earth, like she’d …”
- Andrew D. Smith – “How do you apologize, like how do you apologize for something like that?”
In considering the issue of voluntariness, I also consider whether to exclude evidence where the prejudicial effect clearly outweighs the probative value. I conclude that on that analysis, the entire police interview should be excluded. Throughout various portions of the interview, Sergeant Loam suggested to the accused that there were eye-witnesses inside the house who could identify him. It was also suggested that the results of the gunshot residue test, administered earlier that day to the accused, were known, and assisted the police in establishing that Mr. Smith pulled the trigger inside the home. In the decision R. v. Barges  O.J. No. 5595 (Ont. S.Ct.) Glithero J. described a police interview technique, with lengthy monologue questions, and the theorizing process at p. 13 as follows:
The probative value of this interview is slight given that, for the most part, it contains unanswered police theorizing. Its prejudicial effect is substantial as it effectively allows the Crown to have another jury address. In my view, it cannot be said that failure of the accused to respond in the circumstances of an interview by a person in authority can amount to adoption by silence. Admission of this interview may result in the jury improperly using the accused’s lack of meaningful response to the pages and pages of police allegations and theories. If the jury did not misuse the evidence in that way, then the fact that the police have various beliefs as to how this killing took place has no probative value. I have given consideration as to whether this interview can be edited. In my opinion, it cannot, as the offensive aspects of the technique are used often and repeatedly such as to render any remaining material quite meaningless. Furthermore, even with respect to those matters where there are admissions, the accused is entitled to have the entire circumstances of the interview placed before the jury so that it can properly assess what weight ought to be attached to any answers that he does give.
38 In my view, the situation in this case mirrors, to some extent, the situation in the Barges decision. Over the course of a seventy-one page police interview, it is difficult to pinpoint whether in fact the accused made any inculpatory statements in answer to the allegations of murder. Given that the questions were very long, and the answers were very short, and having regard to editing requirements, any remaining material in the transcript would be rendered meaningless or at best, confusing to the jury. Even after editing, I conclude that the prejudicial effect of the transcript outweighs its probative value.
39 For all of these reasons, I conclude that the interview with Sergeant Loam must be excluded in its entirety.
- The Issue with Respect to the Alleged Breach of the Accused’s Charter Rights
40 Although I have determined that the statements and utterances given to the three police officers are to be excluded, on the voluntariness issue, I nevertheless turn to a short analysis as to whether or not the statements and utterances ought also to be excluded based on Charter principles. The connection or relationship between the confessions rule and Charter principles is well set out at paragraph 30 of the Oickle decision:
“First, the confessions rule has a broader scope than the Charter. For example, the protections of s. 10 only apply “on arrest or detention.” By contrast, the confessions rule applies whenever a person in authority questions a suspect. Second, the Charter applies a different burden and standard of proof from that under the confessions rule. Under the former, the burden is on the accused to show, on a balance of probabilities, a violation of constitutional rights. Under the latter, the burden is on the prosecution to show beyond a reasonable doubt that the confession was voluntary. Finally, the remedies are different. The Charter excludes evidence obtained in violation of its provisions under s. 24(2) only if admitting the evidence would bring the administration of justice into disrepute: see R. v. Stillman,  1 S.C.R. 607, 113 C.C.C. (3d) 321, 144 D.L.R. (4th) 193, R. v. Collins,  1 S.C.R. 265, 33 C.C.C. (3d) 1, 38 D.L.R. (4th) 508, and the related jurisprudence. By contrast, a violation of the confessions rule always warrants exclusion.
- The Initial Arrest
41 Constable Hall’s evidence establishes that he formally arrested Andrew Smith for public intoxication, after asking him a series of three short questions. The accused was not informed of any s. 10(a) or 10(b) Charter Rights until he was formally arrested, handcuffed and placed in the rear of the cruiser. The issue therefore arises whether, prior to arrest, the accused was detained within the meaning of s. 10(a) and (b) such that he ought to have been informed of his rights at that time. In R. v. Hebert (1190) 57 C.C.C. (3d) 1 Sopinka, J. stated at p. 20 as follows:
In a broad sense, the purpose of ss. 7 to 14 is twofold to preserve the rights of the detained individual, and to maintain the repute and integrity of our system of justice. More particularly, it is to the control of the superior power of the state vis-a-vis the individual who has been detained by the state, and thus placed in its power, that s. 7 and the related provisions that follow are primarily directed. The state has the power to intrude on the individual’s physical freedom by detaining him or her. The individual cannot walk away. This physical intrusion on the individual’s mental liberty in turn may enable the state to infringe the individual’s mental liberty by techniques made possible by its superior resources and power.
42 In the decision R. v. Van Wyk  O.J. No. 3515 (Ont. Sup.Ct.) Hill J. dealt with an issue as to whether or not the accused was under detention when he stood in his own home, and elected to answer police questions. At paragraph 61 of the decision Justice Hill stated:
Accepting that a police question may, in some circumstances, amount to a “direction or command” (Regina v. Moran,  O.J. No. 794, supra at 258), that is not the case here. A suspect is free to answer or not to answer questions posed by the police save in exceptional circumstances: Regina v. Esposito,  O.J. No. 1002, supra at 94. The language used by Detective Morgado was non-confrontational and polite. There is no persuasive evidence that Mr. Van Wyk, in speaking to the police in the hallway, believed he was in a position where there existed a statutory compulsion to respond to questions about his driving of the sort described in The Queen v. White,  S.C.J. No. 28.
43 In the decision R. v. Grafe  O.J. No. 796 (Ont. C.A.) the Ontario Court of Appeal dealt with the issue of whether a pedestrian who was stopped by the police after he allegedly acted suspiciously was detained. At pp. 3, 4 the court stated:
No interference with the liberty or security of the respondent took place in his first encounter with the police officer. The law has long recognized that although there is no legal duty there is a moral or social duty on the part of every citizen to answer questions put to him or her by the police and, in that way to assist the police. See, for example, Rice v. Connolly,  2 All E.R. 649 at p. 652, per Lord Parker C.J. Implicit in that moral or social duty is the right of a police officer to ask questions even, in my opinion, when he or she has no belief that an offence has been committed. To be asked questions, in these circumstances, cannot be said to be a deprivation of liberty or security
44 At page five of the decision, the court set out some of the determinative factors to consider, as outlined by Martin J.A., in the decision R v. Smith (1986), 25 C.C.C. (3d) 361 (Ont. C.A.).
45 I am not able to conclude on a balance of probabilities that the accused has established that he was detained within the meaning of the term used in s. 10(a) and 10(b) of the Charter, when Constable Hall parked his motor vehicle, walked toward him and began to ask him questions. I accept that while Officer Hall was interested in speaking to a person who had been described as “suspicious”, his general questioning of Mr. Smith was “part of the general investigation of a crime or possible crime.” There is no evidence to suggest that Officer Hall determined that the accused had committed the crime at 4 Burd Street and that his questioning of Mr. Smith was for the purposes of obtaining incriminating statements from him.
46 As stated in the Grafe decision, supra:
The Charter does not seek to insulate all members of society from all contact with constituted authority, no matter how trivial the contact may be.
47 There was nothing unreasonable about Officer Hall travelling along Church Street, in answer to the suspicious person call, even after being advised that a crime had been committed at 4 Burd Street. Nor has any evidence been led by the accused to demonstrate or suggest that he had a subjective belief that he was detained or otherwise under the control and authority of Officer Hall. Accordingly, for these reasons, I conclude that the accused has not proved that his Charter rights were breached and infringed, upon “detention.”
(b) Statements Made to Acting Detective Sergeant Betts:
48 The interview with Sergeant Betts comprised seven pages. At page two the issue of a homicide and a first degree murder was discussed. At page three Sergeant Betts formally cautioned the accused and indicated that he had the right to retain and instruct counsel without delay. At page four, the accused indicated that he could speak with his own lawyer and he provided his lawyer’s name to the officer.
49 Detective Betts questioned the accused further on page four and page five of the transcript, before indicating that he would make arrangements to contact the lawyer. After speaking with Mr. Thurston, the accused returned to the interview room at approximately 7:32 a.m. and the interview concluded at 7:34 a.m.
50 The majority of the statements and utterances made by Mr. Smith to Sergeant Betts were provided before he had a reasonable opportunity to contact and speak with Mr. Thurston. During this period, as I have noted earlier, the accused remained under the effects of alcohol or drugs. As I indicated earlier, there is considerable doubt as to whether he was in a position, even after speaking with his lawyer late in the interview process, to understand his rights or to appreciate their legal significance. Indeed, Sergeant Betts himself determined that Mr. Smith’s requests to have a cigarette seemed to the accused to be more important than his right to speak to his lawyer.
51 I conclude that the accused has established on a balance of probabilities that his charter rights were breached during the majority of the interview process. I am not convinced that having regard to circumstances that existed on the morning of November 27 that the remaining one or two pages of the interview process can be saved and accordingly I would exclude the entire statement.
- Statements Made to Sergeant Loam
52 The accused was last formally cautioned at approximately 7:20 a.m., by Detective Betts. He last spoke with his lawyer between 12:36 and 12:43 p.m. at the O.P.P. Detachment. Sergeant Loam did not formally caution or re-state or re-read any legal rights to Mr. Smith.
53 Throughout the lengthy interview, the accused indicated on a number of occasions either a desire to speak to his lawyer, a desire to have his lawyer present with him during the interview, or words indicating an intention to remain silent on the basis of his lawyer’s advice. In particular, the transcript notes some of the following matters:
- Page 5 – Sergeant Loam – “So this is your chance to look after yourself, and it’s the only chance that you’ll have …”. Andrew Smith: “See ah if that’s the truth then why don’t I have some kind of protection, like why isn’t my lawyer here you know, and …”
- Page 16 – Andrew D. Smith – “[my lawyer] told me don’t say anything. I told you more than I should of already”
- Page 17 – Andrew D. Smith – “So I mean I, I, I’d rather not say anything. I don’t wanna saying nothing, I just would like to talk to my lawyer. Once my lawyer, once I’ve consulted my lawyer he can tell me what I should and what I shouldn’t say and that you know then he and then we can talk right.”
- Page 18 – Andrew D. Smith – “And ah, I need, I need to speak to a lawyer before I give you (inaudible) … or say anything”
- Page 19 – Andrew D. Smith – “… I’ll talk to my Lawyer first and he can tell me what to say because ..”
- Page 20 – Andrew D. Smith – “So I mean like if I’m … it, it just makes sense to me, to be able to contact my lawyer, talk to him …”
- Page 22 – Andrew. D. Smith – “… I’m saying you know I’d like to talk to my lawyer first.”
- Page 22 – Sergeant Loam – “‘Cause you and I may never talk again, okay. The police may never talk to you again after this date ’cause there’s not gonna be a reason to, okay. That’s the point I’m trying to make.”
- Page 23 – Andrew D. Smith – “I have to talk to the lawyer before I can make any statement at all, like ..”
- Page 24 – Andrew D. Smith – “… ’cause that gives you something else to pull apart so I just can’t do that until I talk to a fuckin’ lawyer.”
- Page 25 – Andrew D. Smith – “Because my counsel’s going to be able to advise me to say okay, okay I know the situation now, I know what’s happened, right, you know … right, and, and, and, and we can all work together on this okay, which is great … But without that legal counsel … I don’t know the law well enough to, to, to, to make a statement to you, like I can’t do that …”
- Page 26 – Andrew D. Smith – “I appreciate talking to you and we will talk again if we can get the chance but it’s just a matter of being able to have counsel, you know … So that’s all, all I’m asking is that, if I can talk to my counsel first …”
- Page 27 – Andrew D. Smith – “So if somebody can get a hold of Thurston again for me, tell him that, if any, I don’t know if any of your homicide detectives (inaudible) … that we need to sit down and talk.” Sergeant Loam – “Alright, we can do that. Like I say I have no problem doing that. Then we can sit down, uhm and I’ll do that. If you wanna do that we can do that. Uhm …” Andrew D. Smith – “That, that I would really appreciate.”
- Page 28 – Andrew D. Smith – So, all I want is legal counsel here to tell me what exactly I should or should not say and whether I have a chance to take this to trial, you know like, what, what, what my options are, you know what I mean? … So …I’d really like to talk to Thurston and I’m hoping that he can get me in touch with somebody better (laughing).
- Page 31 – Sergeant Loam – “… my understanding is that ah Ma’s not having her surgery ’til tomorrow. When she has it done then we’ll deal with that. We’ll deal with her down the road. (inaudible) … But the, the intent, or of me talking with you isn’t to, wasn’t to say oh my God, your worried about Ma, and if somethin’ happens, now that’s not, like talking to (inaudible – speaking simultaneously).” Andrew Smith – “Oh God please … Exactly, like there’s so many little things I … that’s exactly why I want to go through it with Thurston …”
- Page 33 – Andrew D. Smith – “I need to see … Michael Thurston legally, I, it’s fair and you’ve gotta know that it’s fair.”
- Page 35 – Andrew D. Smith – “Boy, that’s the things I’d just, I would rather talk about with Mike Thurston right, ’cause …”
- Page 41 – Andrew D. Smith – “So, like ah, is there somehow you can get a hold of Thurston?”
- Page 50 – Andrew D. Smith – “And so, oh man I just, I just wanna talk to somebody like you know what, growing up where I grew up and doing the things that I’ve done, to me, you’re the enemy …’cause you know, so it’s like, I just wanna talk to somebody that always been on my side … Right … and actually somebody who knows that law and could, you know, and I could piece it together with him …”
- Page 51 – Andrew D. Smith – “That’s why I’d like to get a hold of him right away so we can do this”
- Page 52 – Sergeant Loam – “Uhm, we talked about, now we talked a little bit about your, about some blackout conditions, and we kind a left it at you’re gonna talk to your lawyer again and decide if we wanna talk again, is that fair? …”
- Page 53 – Andrew Smith – “Yeah but, but just, can you just tell him that it’s, it’s so important, I just really need him here today.” Sergeant Loam – “Okay, I’ll talk to him. Well what we’ll do is we’ll call him and then you can talk to him, and that’s probably, ’cause that’s what your rights are, right, how ’bout we do that?” Andrew D. Smith – “Okay.”
54 Sergeant Loam left the interview room at 4:09 p.m. and the accused remained alone until 4:19 p.m. Between 4:19 and 4:21 p.m. he left the room and he was able to briefly speak with his lawyer.
55 Sergeant Loam re-commenced questioning Mr. Smith at approximately 4:32 p.m. and the questioning continued until the end of the interview at 4:49 p.m.
56 There are a number of legal principles to bear in mind when determining whether the accused’s S. 10(a) and 10(b) legal rights were breached and infringed. In Hebert, supra, at p. 22, McLachlin J. (as she then was) stated:
First, there’s nothing in the rule to prohibit the police from questioning the accused in the absence of counsel after the accused has retained counsel. Presumably, counsel will inform the accused of the right to remain silent. If the police are not posing as undercover officers and the accused chooses to volunteer information, there will be no violation of the Charter. Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence.
57 Weighted against this principle, are those situations described by Lamer J. in the decision R. v. Manninen (1987), 34 C.C.C. (3d) 385 (S.C.C.), where in a situation where the police ignore a detainee’s assertion of his legal right and proceed to question him “… he is likely to feel that his right has no effect and that he must answer.”
58 Mr. Smith asserted his right to silence on many occasions throughout the interview. At times, he was presented with evidence that had been fabricated, as outlined earlier, and at times it was suggested to him that this would be the last or only occasion that he could reasonably speak to the police. As early as page five of the transcript, he appeared confused as to why his lawyer wasn’t present during the interview process. During the interview process, it was implied or inferred that the injuries to Ma Smith might be more serious, and that additional or more serious charges could flow from that.
59 In my view, this is a case that falls into that category described by Hill J. where in the Van Wyk decision, supra, at paragraph 158 he stated:
The police conduct in this case exceeded legitimate attempts at persuasion not only through the failure to cease persistent questioning in the face of the prisoner’s repeated attempts to explain the advice he believed he should act upon, but also through the employ of unfair and abusive techniques designed to frustrate the accused rights.
60 Charter rights are protected in the highest and supreme law of Canada, The Constitution Act, 1982. They are to be given a purposive interpretation. Countered against this is the clear right of the police to investigate and solve crimes, and to have the opportunity to conduct vigorous interviews, coupled with questioning techniques. However, in this case, given the accused’s obvious withdrawal from drug and alcohol ingestion, his repeated desire to speak with his counsel to secure further legal advice, coupled with his desire, expressed at various points throughout the interview, to maintain his right to silence, I conclude that the accused was effectively denied his constitutional right to silence. I further conclude that his repeated attempts to rely upon his Charter rights were frustrated and on a balance of probabilities, I conclude that his Charter rights were thus breached and infringed.
- – The Issue of Exclusion
61 I have considered the applicable test set out in Collins v. The Queen (1987), 33 C.C.C. (3d) 1 (S.C.C.) and I conclude that having regard to trial fairness, the seriousness of the breach or the infringement and the effect of the admission of the evidence on the administration of justice, that the statements made to the two officers in question are to be excluded. Order accordingly.