Supreme Court

SUPREME COURT OF Nova Scotia

Citation: R. v. Garnier, 2017 NSSC 338

Date: 2017 11 14

Docket: Hfx No.  454738

Registry: Halifax

Between:

Her Majesty the Queen

 

v.

Christopher Garnier

 

 

Judge:	The Honourable Justice Joshua M. Arnold
Heard:	July 31; August 1, 2, 3, 4, 8, 9, 10, 11; September 15; October 5 and 24, 2017, in Halifax, Nova Scotia
Written Decision:	April 12, 2018
Counsel:	Carla Ball and Christine Driscoll, for the Crown Joel Pink, Q.C., Vanessa Christie, Nicola Watson, for the Defence

 

 

By the Court:

Overview

[1]              This decision deals with the first of three statements made by Christopher Garnier to the police during a missing person investigation and subsequent homicide investigation relating to Catherine Campbell.

[2]              Various voir dires in relation to the admissibility of evidence in Christopher Garnier’s trial were held on July 31; August 1, 2, 3, 4, 8, 9, 10, 11; September 5, 7, 8, 15; and October 4, 5, 24, 25, and 26, 2017.  The five week trial started on November 20, 2017.  In the meantime I was involved in other time sensitive criminal matters.  Therefore, in keeping with the principles outlined in R. v. Jordan, 2016 SCC 27 and R. v. Cody, 2017 SCC 31, I determined that it was more efficient to provide counsel with bottom-line decisions in relation to certain admissibility issues, with detailed reasons to follow.  On November 14, 2017, I provided counsel with my bottom-line decisions relating to the admissibility of three statements provided by Mr. Garnier. 

[3]              Catherine Campbell was a member of the Truro Police Service.  The Crown alleges that on September 11, 2015, while off-duty, Ms. Campbell had been drinking and socializing with Mr. Garnier in a downtown Halifax bar shortly before he murdered her. 

[4]              Ms. Campbell was the subject of a significant missing persons investigation. Her body was discovered by the Halifax Regional Police Service at approximately 12:10 AM on September 16, 2015, in an area near the Macdonald Bridge. Prior to the discovery of her body, the police took a statement from Mr. Garnier without providing him with a police caution or right to counsel.  That first statement was audio recorded with the knowledge of Mr. Garnier.  I ruled that the first statement is inadmissible (see R. v. Garnier, 2017 NSSC 338).

[5]              At approximately 1:19 AM on September 16, 2015, Mr. Garnier was arrested for the murder of Ms. Campbell. He subsequently provided an inculpatory statement.  That second statement was video and audio recorded with the knowledge of Mr. Garnier.  I ruled that the second statement is admissible (see R. v. Garnier, 2017 NSSC 339).

[6]              Finally, shortly after providing those statements, while still in cells at the R.C.M.P. detachment in Lower Sackville, Mr. Garnier spoke to an undercover police officer posing as his cellmate.  That third statement was surreptitiously audio recorded.

[7]              The defence says that none of these three statements are admissible.  This decision will deal only with the first statement.  For the reasons that follow, I have ruled that the first statement is inadmissible.

Positions of the parties

[8]              Mr. Garnier argues that the uncautioned statement the police elicited from him before his arrest is inadmissible because the police considered him a suspect either before or during the interview, and therefore should have given him the police caution and informed him of his right to counsel at that time. 

[9]              The Crown says Mr. Garnier was not a suspect during the first statement and required no caution or warning.

[10]         I agree with Mr. Garnier.  The police should have cautioned him when he became a suspect, which occurred, at the latest, at some point early in the first interview.

Background

[11]         During the morning of September 14, 2015, a report came in to the Halifax Regional Police from the Truro Police that Catherine Campbell had not reported to work that morning.  Ms. Campbell lived in Dartmouth and it was unusual for her not to report.  She was presumed missing.

[12]         At 7:00 PM that day, after completing a full day shift, Sergeant Jason Withrow, H.R.P., was called back in to work because Ms. Campbell was still missing.  He stayed at work organizing the search for her until 2:00 AM.

[13]         The H.R.P. General Investigative Service was brought in on the investigation. On September 14, 2015, a civilian analyst prepared a social media report about Ms. Campbell.  A G.I.S. member contacted Ms. Campbell’s mother, father and sister.  There was some indication that Ms. Campbell might have communicated with her father by telephone on September 12, and with her aunt by text on September 11.  The police called her cell phone.  They had no success.

[14]         Investigators attended at Ms. Campbell’s apartment on September 14, 2015.  The last sign of her having been home was on September 11.  Detective Constable Michael Cheeseman, in charge of H.R.P. missing persons investigations, described his observations of Ms. Campbell’s apartment in his testimony.

[15]         F.I.S. members determined that a taxi had taken Ms. Campbell from her home to the Alehouse, a tavern in downtown Halifax.  Investigators reviewed video footage from the Alehouse.  Ms. Campbell is seen on video between 3:00 and 3:30 AM on September 11, 2015, interacting with a male.  The pair were observed on video kissing and touching each other.  The male was identified by staff members of the Alehouse as Chris Garnier, a former employee.

[16]         As noted, investigators also had reports of an alleged text message exchange between Ms. Campbell and her aunt on September 11, 2015; an alleged telephone call between Ms. Campbell and her father on September 11; and a possible sighting of Ms. Campbell at a restaurant in the Westville/New Glasgow area after September 11.  While later investigation determined that these reports were baseless, as of September 15, 2015, they had not yet been ruled out as possibilities.

[17]         During the early morning hours of September 15, 2015, investigators concluded that Mr. Garnier was the last person they could confirm had been in contact with Ms. Campbell.  By 7:00 AM an investigative triangle had been formed, comprised of Sergeant Jason Withrow, Detective Constable Kerry Neilsen and Detective Constable Scott Bowers.  A briefing was held that morning.

[18]         Sergeant Withrow said the triangle did not make a formal request for surveillance on September 15.  However, Sergeant Ron Legere, who ran the surveillance unit, offered a surveillance unit to assist in the investigation.

[19]         The triangle tasked two officers to go to speak to Mr. Garnier.  Corporal (then Constable) Jody Allison and Detective Constable Scott MacLeod were sent to conduct this interview.

[20]         Sergeant Withrow said the police wanted to find out where Ms. Campbell went after the Alehouse.  He said that, at that time, they still believed that Ms. Campbell had spoken with her father and had texted with her aunt on September 11, 2015.  There was also information that she may have been seen in a restaurant in the New Glasgow area.

[21]         Corporal Allison and Detective Constable MacLeod interviewed Mr. Garnier between 9:56 AM and 10:36 AM on September 15, 2015.

[22]         Sergeant Withrow said that after the interview, the triangle was told by Corporal Allison to attend at an apartment on McCully Street, where Mr. Garnier said he had slept on September 11, 2015, to speak with Mitch Devoe.  Mr. Devoe’s interview was completed by investigators by approximately noon on September 15. Mr. Devoe told police that the mattress from his pull-out couch and his sheets were missing.  The investigators saw what they believed to be blood on Mr. Devoe’s floor near the pull-out couch.

[23]         It was following the interview of Mr. Devoe that the police say they concluded Ms. Campbell was the victim of a homicide and that Mr. Garnier was responsible.

Confessions generally

[24]         In R. v. Spencer, 2007 SCC 11, [2007] S.C.J. No. 11, Deschamps. J. reviewed the law as it relates to voluntary confessions:

11                              At common law, statements made by an accused to a person in authority are inadmissible unless they are made voluntarily.  This Court set out the test for ascertaining the voluntariness of such statements in Oickle. That case “recast the law relating to the voluntariness of confessions. . . . It rejected resort to fixed and narrow rules”: D. M. Paciocco and L. Stuesser, The Law of Evidence (4th ed. 2005), at p. 290. As Iacobucci J. explained in Oickle, at para. 27, the rule “is concerned with voluntariness, broadly understood”. He also emphasized that a contextual approach is required (at para. 47):

The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over‑ and under‑inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.

[25]         More recently, in R. v. Paterson, 2017 SCC 15, [2017] S.C.J. No. 15, Brown J., writing for the majority summarized the law of voluntariness (some citations omitted):

14     The law's concern for "voluntariness" in relation to police investigative techniques is embodied in the confessions rule. That rule prohibits the admission at trial of statements made by suspects to police or to other persons in authority, unless the Crown proves beyond a reasonable doubt that such statements were voluntary. ... The Crown's burden -- which is identical to its burden in respect of the accused's guilt itself -- highlights that the rule is linked to the law's concern that involuntary statements are "unreliable as affirmations of guilt". … As this Court recognized in Hodgson (at para. 19), statements obtained by force, threat or promises are inherently unreliable.

15     The Court has also recognized, however, that concern for the untrustworthiness of involuntary confessions does not entirely capture the rationale for excluding evidence caught by the confessions rule. In R. v. Hebert, [1990] 2 S.C.R. 151, the rule was said to rest on fundamental notions of trial fairness and (at p. 173) "the idea that a person in the power of the state's criminal process has the right to freely choose whether or not to make a statement to the police", coupled with a "concern [for] the repute and integrity of the judicial process". Those same concerns, the Court added (at p. 175), underlay the privilege against self-incrimination, and supported recognition of a detainee's right to silence as a principle of fundamental justice under s. 7 of the Charter. "Voluntariness" then, as a concept designed to limit the scope of police investigative techniques, has been broadly associated with the principle that the Crown must, to maintain the repute and integrity of the trial process, establish guilt without the assistance of the accused. …

[26]         Mr. Garnier does not allege that he was threatened, induced or tricked by the police into providing his first statement.  Instead, he says the police unfairly obtained the statement because they did not provide him with any warnings or inform him of his Charter rights in advance of questioning him.

[27]         Sections 10(a) and (b) of the Canadian Charter of Rights and Freedoms state:

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; ...

[28]         Was Mr. Garnier a suspect when the police interviewed him?  Should he have been given a police caution?  Was he detained during the first interview such that he should have been given his s. 10 Charter rights? 

[29]         The burden is on the Crown to prove the voluntariness of Mr. Garnier’s statement beyond a reasonable doubt.  The burden is on Mr. Garnier to prove on a balance of probabilities that his s. 10 Charter rights were infringed. 

Detention

[30]         In R. v. Suberu, [2009] 2 S.C.R. 460, 2009 SCC 33, the majority of the Supreme Court of Canada, per McLachlin C.J. and Charron J., described the approach to undertake in determining if an individual has been detained.  The majority elaborated on the analysis set out in R. v. Grant, 2009 SCC 32:

[21] In Grant, we adopted a purposive approach to the definition of “detention” and held that a “detention” for the purposes of the Charter refers to a suspension of an individual’s liberty interest by virtue of a significant physical or psychological restraint at the hands of the state.  The recognition that detention can manifest in both physical and psychological form is consistent with our acceptance that police actions short of holding an individual behind bars or in handcuffs can be coercive enough to engage the rights protected by ss. 9 and 10 of the Charter.

[22] While a detention is clearly indicated by the existence of physical restraint or a legal obligation to comply with a police demand, a detention can also be grounded when  police conduct would cause a reasonable person to conclude that he or she no longer had the freedom to choose whether or not to cooperate with the police.  As discussed more fully in Grant, this is an objective determination, made in light of the circumstances of an encounter as a whole.

[23] However, this latter understanding of detention does not mean that every interaction with the police will amount to a detention for the purposes of the Charter, even when a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with the police.  This Court’s conclusion in Mann that there was an “investigative detention” does not mean that a detention is necessarily grounded the moment the police engage an individual for investigative purposes.  Indeed, Iacobucci J., writing for the majority, explained as follows:

“Detention” has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview.  The person who is stopped will in all cases be “detained” in the sense of “delayed”, or “kept waiting”.  But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint. In this case, the trial judge concluded that the appellant was detained by the police when they searched him.  We have not been urged to revisit that conclusion and, in the circumstances, I would decline to do so.  [Emphasis added; at para. 19.]

[24] As explained in Grant, the meaning of “detention” can only be determined by adopting a purposive approach that neither overshoots nor impoverishes the protection intended by the Charter right in question.  It necessitates striking a balance between society’s interest in effective policing and the detainee’s interest in robust Charter rights.  To simply assume that a detention occurs every time a person is delayed from going on his or her way because of the police accosting him or her during the course of an investigation, without considering whether or not the interaction involved a significant deprivation of liberty would overshoot the purpose of the Charter.

[25] For convenience, we repeat the summary set out in Grant, at para. 44:

1.   Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint.  Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

2.   In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained.  To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

(a)      The circumstances giving rise to the encounter as they would reasonably be perceived by the individual:  whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

(b)      The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c)      The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[31]         The court went on to state in Suberu:

28     As discussed more fully in Grant, in a situation where the police believe a crime has recently been committed, the police may engage in preliminary questioning of bystanders without giving rise to a detention under ss. 9 and 10 of the Charter. Despite a police request for information or assistance, a bystander is under no legal obligation to comply. This legal proposition must inform the perspective of the reasonable person in the circumstances of the person being questioned. The onus is on the applicant to show that in the circumstances he or she was effectively deprived of his or her liberty of choice. The test is an objective one and the failure of the applicant to testify as to his or her perceptions of the encounter is not fatal to the application. However, the applicant's contention that the police by their conduct effected a significant deprivation of his or her liberty must find support in the evidence.

29     The line between general questioning and focussed interrogation amounting to detention may be difficult to draw in particular cases. It is the task of the trial judge on a Charter application to assess the circumstances and determine whether the line between general questioning and detention has been crossed. ...

[32]         In R. v. Folker, 2016 NLCA 1, Hoegg J.A. reiterated the comments of the Supreme Court of Canada in Grant, and added:

18     Nevertheless, the Court stated that an investigative encounter has the potential to turn into a detention which would engage the requirement to give a detainee his or her Charter rights. Suspicion of a particular individual could trigger the requirement for Charter rights, but "focussed suspicion, in and of itself, does not turn [an] encounter into a detention. What matters is how the police, based on that suspicion, interacted with the subject" (Grant at paragraph 41). In this regard, if the words and actions of the police are such that a reasonable person would conclude that he or she is not free to leave or decline to answer questions then the subject can be said to be detained.

[33]         However, as noted by the majority in Grant, the police might, during the course of investigating a crime, unwittingly find themselves asking questions of a person who turns out later to be implicated and is thereby at risk of self-incrimination:

[38] In the context of investigating an accident or a crime, the police,  unbeknownst to them at that point in time, may find themselves asking questions of a person who is implicated in the occurrence and, consequently, is at risk of self-incrimination. This does not preclude the police from continuing to question the person in the pursuit of their investigation.  Section 9 of the Charter does not require that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Nor does s. 10 require that the police advise everyone at the outset of any encounter that they have no obligation to speak to them and are entitled to legal counsel.

[39] Effective law enforcement is highly dependent on the cooperation of members of the public. The police must be able to act in a manner that fosters this cooperation, not discourage it. However, police investigative powers are not without limits. The notion of psychological detention recognizes the reality that police tactics, even in the absence of exercising actual physical restraint, may be coercive enough to effectively remove the individual’s choice to walk away from the police. This creates the risk that the person may reasonably feel compelled to incriminate himself or herself.   Where that is the case, the police are no longer entitled simply to expect cooperation from an individual. Unless, as stated earlier, the police inform the person that he or she is under no obligation to answer questions and is free to go, a detention may well crystallize and, when it does, the police must provide the subject with his or her s. 10(b) rights. That the obligation arises only on detention represents part of the balance between, on the one hand, the individual rights protected by ss. 9 and 10 and enjoyed by all members of society, and on the other, the collective interest of all members of society in the ability of the police to act on their behalf to investigate and prevent crime.

[34]         In the circumstances, Mr. Garnier was neither physically nor psychologically detained.  He was not experienced with dealing with the police.  However, he was an intellectually functional adult male who was capable of communicating with the police.  He was asked to get into the police vehicle.  He was not locked into the back of the police car.  Aside from shaking his hand, the officers did not touch him.  As the police vehicle was not locked, and he was in the parking lot of his workplace, he was free to leave the vehicle at any time.  The police did nothing to suggest otherwise.

[35]         While I am satisfied that there was no detention, this does not end the matter.  I must go on to consider whether Mr. Garnier was the subject of a focussed police investigation. 

Reasonably Competent Investigator

[36]         In R. v. Worrall, 2002 CarswellOnt 5171, [2002] O.J. No. 2711 (Ont. Sup. Ct. J.), Watt J. (as he then was) held that an individual must be cautioned by the police if there is information that would alert a reasonably competent investigator to that person being associated with committing a crime.  Justice Watt made the following comments about the law of voluntariness generally:

93     The challenge to admissibility on common law grounds requires Crown counsel

i. to introduce some evidence that the remarks or statement attributed to the accused were made; and

ii. to prove beyond a reasonable doubt that the remarks or statement were or was voluntary. ...

94     To determine whether something said to persons in authority by one later accused of crime was voluntary requires consideration of all the circumstances in which the accused person spoke.

95     In R. v. Oickle (2000), 147 C.C.C. (3d) 321, the Supreme Court of Canada emphasized that voluntariness is the touchstone of the confessions rule. Iacobucci J. said at pp. 353-4:

[68] While the foregoing might suggest that the confessions rule involves a panoply of different considerations and tests, in reality the basic idea is quite simple. First of all, because of the criminal justice system's overriding concern not to convict the innocent, a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. Both the traditional, narrow Ibrahim rule, [1914] A.C. 599, and the oppression doctrine recognize this danger. If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it. Between these two extremes, oppressive conditions and inducements can operate together to exclude confessions. Trial judges must be alert to the entire circumstances surrounding a confession in making this decision.

[69] The doctrines of oppression and inducements are primarily concerned with reliability. However, as the operating mind doctrine and Lamer J.'s concurrence in Rothman, 59 C.C.C. (2d) 30, supra, both demonstrate, the confessions rule also extends to protect a broader conception of voluntariness "that focuses on the protection of the accused's rights and fairness in the criminal process": J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 339. Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused's right to silence, this Court's jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible.

Iacobucci J. added at pp. 354-5:

[71] Again, I would also like to emphasize that the analysis under the confessions rule must be a contextual one. In the past, courts have excluded confessions made as a result of relatively minor inducements. At the same time, the law ignored intolerable police conduct if it did not give rise to an "inducement" as it was understood by the narrow Ibrahim formulation. Both results are incorrect. Instead, a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession's voluntariness, taking into account all the aspects of the rule discussed above. Therefore a relatively minor inducement, such as a tissue to wipe one's nose and warmer clothes, may amount to an impermissible inducement if the suspect is deprived of sleep, heat, and clothes for several hours in the middle of the night during an interrogation: see Hoilett, 136 C.C.C. (3d) 449, supra. On the other hand, where the suspect is treated properly, it will take a stronger inducement to render the confession involuntary.

96     The Oickle court emphasized the need for a quid pro quo offer by investigators, irrespective of its precise form (whether threat or promise). There must be, in other words, the court said, a nexus between what is alleged to be improper investigative conduct and the decision of an accused to speak.

97     The Oickle court emphasized that neither the operating mind requirement nor the doctrine of oppression were discrete or separate inquiries severed completely from the rest of the confessions rule. Each is a factor to consider in coming to a conclusion about the adequacy of the prosecution's proof of voluntariness. Iacobucci J. described the operating mind requirement in these terms at p. 351:

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

98     Illustrative of the factors that could create an atmosphere of oppression, Iacobucci J. considered

... depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time.

[37]         Having reviewed voluntariness principles generally, in Worrall, Watt J. went on to review the circumstances of the case:

99     When Detective Scott and Detective Constable Chiasson arrived at 50 Gerrard Street East around eight o'clock in the evening on January 2, 2000, they were reasonably certain that the person whose dead body had been found at 500 Richmond Street West was Brendan Carlin. They knew of the family and work relationship between Brendan Carlin and Joseph Worrall. They knew they lived together. Joseph Worrall was a logical place to start to find out something about Brendan Carlin: his habits, activities, friends, associates, and perhaps his recent whereabouts.

100     There were also quite a few things that Scott and Chiasson didn't know about Brendan Carlin. When did he die? What was he doing before he died? Where had he been? With whom? How did he die? The officers had no reason to suspect foul play, much less the involvement of Joseph Worrall in any unlawful killing there may have been of Brendan Carlin.

101     Nothing that happened or didn't happen at 50 Gerrard Street East, or en route to 14 Division raises the slightest doubt in my mind that what Joseph Worrall said there was anything but voluntary. I do not consider his story about the finding of marijuana and the assurances given to be worthy of serious consideration.

102     Investigators had no reason to caution Joseph Worrall at 50 Gerrard Street East. They had no evidence of crime, much less any grounds to consider his involvement in it. There was nothing said or done to raise any doubt about Joseph Worrall's freedom to choose whether to speak or not. He wanted to cooperate.

[38]         The situation changed in that case when the investigators spoke to Mr. Worrall again outside the police station.  This led Watt J. to apply the “reasonably competent investigator” test, for determining if, and when, Mr. Worrall became a suspect:

103     The police investigation took a turn, however, when Joseph Worrall and Detective Constable Chiasson were talking outside 14 Division police station. It was there that the officer learned, for the first time:

i. that the accused and deceased had been using heroin shortly before the last time the accused saw the deceased;

ii. that when the accused gave Brendan Carlin heroin, he (Worrall) thought he may have given him too much;

iii. that Brendan Carlin was really "mashed" on ecstasy and too much booze at the time Worrall gave him the heroin;

iv. that the accused knew that heroin suppresses the lungs and that Brendan Carlin was "a bad asthmatic"; and

v. that the accused thought he should have stayed with Brendan Carlin.

104     This information, as it seems to me, would alert any reasonably competent investigator to the realistic prospect that Brendan Carlin's death may have been associated with the consumption of heroin provided by the speaker, Joseph Worrall. Supplying heroin to another is trafficking in heroin, an unlawful act.

105     Despite this admission and its communication to Detective Scott by Detective Constable Chiasson before the video statement began, neither officer thought it appropriate or prudent to caution Joseph Worrall. He was never told that he was not required to answer police questions, or that anything he did say would be taken down and could be used in evidence.

106     Voluntariness implies an awareness about what is at stake in speaking to persons in authority, or declining to assist them. Neither Detective Constable Chiasson nor Detective Scott told Joseph Worrall (after this disclosure) that what he said could be used in his prosecution for an offence arising out of his conduct in connection with the death of Brendan Carlin. This informational deficit assumes an added importance when there is factored in the implicit suggestion that the identification process must await the interview of Joseph Worrall.

107     In the result, I am simply not satisfied in all the circumstances that Crown counsel has proven beyond a reasonable doubt that the remarks and interview that took place after this disclosure to Detective Constable Chiasson were voluntary. They are inadmissible on that basis in these proceedings. [Emphasis added]

[39]         In R. v. Buchanan (2006), 38 C.R. (6th) 330, [2006] O.J. No. 814 (Ont. Sup. Ct. J.), Dambrot J. also referred to the “reasonably competent investigator” test, stating:

23     At the end of his re-examination, I was unclear about what Det. Buchanan meant when he used the word suspect, and asked him for his definition. He indicated that a person would be a suspect if he had definite information linking him to a crime, such as positive identification by the victim. I referred him to the definition of a suspect found in the Ontario Major Crime Manual, mentioned in my judgment in R. v. Dalzell, [2003] O.J. No. 4901 at para. 70, that is, a suspect is "[a] person an investigator reasonably believes may possess a degree of culpability in the commission of the criminal offence being investigated and there is some incriminating information linking the person to the crime." He agreed, in re-examination, that he was taught this definition in his training.

[40]         In R. v Smyth (2006), 74 W.C.B. (2d) 8, [2006] O.J. No. 5527 (Ont. Sup. Ct. J.), Tratford J. also discussed the “reasonably competent investigator” test when determining if a suspect should be cautioned, and said:

81     Where a police officer is questioning a "suspect," there is an obligation, at common law, to caution him. The failure to advise a "suspect" of the right to silence, the potential jeopardy that he faces and the fact that any of his statements may be used as evidence at trial is a factor against voluntariness. See Boudreau v. R. (1949), 7 C.R. 427 (S.C.C.). Depending upon the other circumstances of the case, the failure to caution a "suspect" may lead to a reasonable doubt on the issue of voluntariness.

82     While this rule is easily stated, and well established at common law, it is more difficult to define a "suspect." In my view, the definition of a "suspect" must be formulated for the purpose of giving effective, practical recognition to the right to silence. The right to silence is a cornerstone of our values as a free and democratic society. No one is required to speak with the police at any time, let alone while he is implicated in a crime. The most effective way of recognizing the right to silence is to define the term "suspect" objectively. Thus, where the information collected during an investigation, objectively viewed, tends to implicate a person in a crime, the person is a "suspect." The objective nature of the test is critical to its efficacy as a means of recognizing the right to silence. A police officer cannot avoid the obligation to caution a "suspect," objectively viewed, by a subjective analysis to the contrary. The fact that a person who is a "suspect," objectively viewed, may also be a witness, or a victim, does not affect the application of the rule to the investigation. As O'Connor J. said in R. v. J.R., [2003] O.J. No. 718 (S.C.J.) said at para. 18:

Mere witnesses, who have no likelihood of becoming accused persons have no need for the protections afforded by the rule. They are in no jeopardy of prosecution and thus of providing evidence against themselves. However, a person whom the police reasonably suspect may become an accused person must also be afforded the protection of the rule. The police cannot simply declare a person only a witness, against whom they have evidence of involvement in a crime and are continuing to acquire evidence, in order to avoid providing the cautions and the right to counsel, out of a concern the person will avail himself of these rights and refuse to provide a statement. [Emphasis added.]

Thus, in this case, the belief by Detective Gordon and Constable DeMelo that the defendant was a "person of interest," in that he was possibly a witness, possibly a victim or possibly a "suspect" did not alter their obligation to caution him at the outset of their contact with him at the Schoolhouse. The information available to Detective Gordon when he arrived at the Schoolhouse around 2:45 am on June 1, 2004, objectively viewed, tended to implicate the defendant in the death of David Mascarin. The defendant's identification card was in the wallet of the jeans located in a pile of clothing near the body of the deceased, who appeared to have been sexually assaulted during an assault that led to his death. These circumstances tended to identify him as the perpetrator. To delay cautioning the defendant as a "suspect," as Detective Gordon and Detective Sergeant Cashman did, until such time as they had an articulable basis to discount the possibility that the defendant was a witness, or a victim, is to equate the definition of a "suspect" with the concept of probable cause to arrest someone. See Chartier v. (Quebec) A.G. (1979), 9 C.R. (3d) 97 (S.C.C.) and R. v. Storrey (1990), 53 C.C.C. (3d) 316 (S.C.C.). When a police officer is arresting someone, s/he cannot merely rely on

incriminating information, ignoring exculpatory information. There must be an articulable basis to discount the exculpatory information before it can be said, as a matter of law, that reasonable grounds exist to support a belief in the commission of a crime. To approach the definition of "suspect" in the same way would, in most cases, delay the caution, thereby giving a less effective recognition to the value of the right to silence in the criminal process.

83     Of course, the objective test is premised upon an analysis of the information by a reasonably competent investigator. As Watt J. said in R. v. Worrall, [2002] O.J. No. 2711 (S.C.J.) at para 104:

This information, as it seems to me, would alert any reasonably competent investigator to the realistic prospect that Brendan Carlin's death may have been associated with the consumption of heroin provided by the speaker, Joseph Worrall. Supplying heroin to another is trafficking in heroin, an unlawful act. …

[41]         In R. v. Carter, 2012 ONSC 94, [2012] O.J. No. 1003, the accused was in custody after an arrest for possession of narcotics and stolen property when he became a suspect in a missing persons investigation. He gave statements to the police in relation to the missing persons investigation in July 2008. The victims’ bodies were discovered in December 2008 and the accused was arrested for murder in January 2009. He argued that the 2008 statements should be excluded, claiming that the police had concealed the fact of the murder investigation. He also claimed that a statement given after his arrest for the murders should be excluded due to a nexus with the 2008 statements. After concluding that the police were aware in July 2008 that they were investigating homicides, Pomerance J. discussed the s. 10(a) Charter issue regarding admissibility of the June 2008 statements and stated:

[18]           The central issue to be determined is whether the police were obliged to advise Mr. Carter that he was a suspect in a murder investigation when they interviewed him on July 7 and 8, 2008.   At the outset of the July interviews, the officers told Mr. Carter that he was a suspect in a “missing persons investigation”.  They did not tell him that he was under investigation for homicide.  It was argued, on behalf of Mr. Carter, that the officers deliberately minimized his jeopardy so as to lull him into making a statement to the police.  The officers testified that this was not the case.  They insisted that they did not mention a homicide investigation because they did not, at that time, believe that a homicide had occurred. 

[42]         Justice Pomerance excluded the July 2008 statements, finding that the police violated the accused’s rights by failing to provide him with his s. 10(a) Charter rights (not the police caution relating to voluntariness):

[39]           On the whole of the evidence, I find it likely that, on July 7 and 8, 2008, the interviewing officers did believe that the missing persons had been murdered.  If the officers did believe that the victims were dead, that they had been murdered, and that Mr. Carter was implicated in the crimes, they were constitutionally obliged to inform Mr. Carter that he was a suspect in a homicide investigation, not an innocuous inquiry into “missing persons”.

[40]           If I am wrong, and the interviewing officers did not know that the investigation was focused on murder, this is something that they ought to have known.  Other officers within the Windsor Police service believed, on cogent grounds, that the victims had been murdered.  The Windsor Police Service was conducting a murder investigation.  It is this institutional knowledge that must set the standard for the necessary Charter warning. The police cannot sidestep constitutional obligations merely by keeping certain strategically placed officers uninformed.   This is not acceptable as a deliberate strategy.   Nor is it acceptable as a product of systemic negligence.   In either instance, it must be found that the suspect’s rights to be informed of his jeopardy under s. 10(a) was infringed. 

[41]           Finally, the obligation under s. 10(a) was triggered even if the police did not have reasonable grounds to believe that the victims had been murdered.  On the strength of the evidence presented to Mr. Carter during his interview, there was certainly a reasonable suspicion to believe that the victims had been murdered.  Mr. Carter was being detained in relation to that suspicion (even though he had been arrested for other offences).   To the extent that the detention was linked to suspected homicides, Mr. Carter had the right to know that.   He was entitled to be cautioned on the offence of homicide whether he was arrested on reasonable grounds or simply detained on reasonable suspicion (see R. v. Suberu, 2009 SCC 33 (CanLII), [2009] S.C.J. No. 33). He was entitled to be given that information before he waived his right to counsel at the beginning of the July 7, 2008 interview.   

[42]           The police were under no obligation to charge Mr. Carter with murder at the time of the interviews.  They were entitled to wait until the bodies were found before laying formal charges.   However, if the police wished to question Mr. Carter about the murders under investigation, they had to tell him what he was really being questioned about (see R. v. Borden, 1994 CanLII 63 (SCC), [1994] S.C.J. No. 82).  [Emphasis added]

[43]         Alternatively, applying the analysis described by Hoegg J.A. in Folker, even if the police had “a lurking suspicion” of Mr. Garnier at the time of the first interview this would not have necessarily converted the interview into detention:

[28]        On July 24, 27 and 28, 2010 and until much later that summer, Mr. Folker was treated as a bereaved family member and was included with Ms. Shirran’s family members in police updates on the investigation. Police continued to investigate alleged sightings of Ms. Shirran, and Mr. Folker continued to initiate contact with the police to volunteer information (in one case suggesting that an acquaintance of his ought to be investigated for possible involvement in Ms. Shirran’s disappearance) to assist them.  Even if police had a lurking suspicion that Mr. Folker was involved in Ms. Shirran’s disappearance when they interviewed him in July, they had nothing concrete on which to base it, and certainly had no grounds for charging him or for a warrant to search his premises.  In any event, even focussed suspicion does not turn an interview into a detention, as was held in Grant.   [Emphasis added]

[44]         In R. v. Belbin, 2015 ONSC 5346, [2015] O.J. No. 4843, the court considered when a "person of interest" would require a police caution or Charter warning prior to giving a statement.  The Crown argued that Mr. Belbin was a person of interest not requiring a caution, but the defence argued that he had been “well along the spectrum to being a suspect” at the time of the interview (paras. 101-102).  The court said:

103     It is clear that if an individual is considered to be a "suspect," then a caution is required. The Ontario Major Case Manual defines "suspect" as follows:

A person an investigator reasonably believes may possess a degree of culpability in the commission of the criminal offence being investigated and there is some incriminating information linking the person to the crime.

104     The Ontario Major Case Manual defines a "person of interest" as:

A person whose background, relationship to the victim or the opportunity to commit the offence may warrant further inquiry but at that time no other grounds exist to suggest culpability in the crime being investigated.

105     The case law indicates that there are circumstances in which an individual is neither under arrest nor detention but where a caution is nevertheless mandated. This question was considered by Dambrot J. in R. v. Dalzell, [2003] O.J. No. 4901, at paras. 61-75. In that case, the Crown sought to prove the voluntariness of a statement made by the accused prior to his arrest and at a time when he was considered by the police to be a "person of interest."

106     In his review of the case law, Dambrot J. referred to R. v. Morrison, [2000] O.J. No. 5733 (Sup. Ct.), R. v. Worrall, supra, and R. v. J.R., [2003] O.J. No. 718 (Sup. Ct.).

107     In Morrison, Trafford J. held that the police terminology as to whether an individual is a person of interest or a suspect is not determinative nor is it necessarily instructive. He defined the test as follows: "A person is a suspect

when, objectively viewed, the information collected during an investigation tends to implicate him/her in the crime." It is an objective test, not a subjective one, and is to be applied to the totality of the information. [See also Trafford J.'s reasons in R. v. Smyth, [2006] O.J. No. 5527 at paras. 81-84.]

108     In Worrall, Watt J. expressed the view that once a police officer has information that "would alert any reasonably competent investigator to the realistic prospect" that the death of the deceased may have been associated with an unlawful act committed by a person being questioned, the officer should tell that person that his or her answers could be used in evidence in a prosecution brought against him, even where that person is neither arrested nor detained. The "informational deficit" arising from a failure to so caution the accused is a consideration when the voluntariness of the statement is considered at trial: Dalzell at paras. 67 and 72.

109     In J.R., O'Connor J. applied the protection of the voluntariness rule to any person whom the police "reasonably suspect may become an accused person." Failure to caution such a person is a factor for consideration on the issue of voluntariness: Dalzell at para. 68.

110     Following his review of the case law, Dambrot J., at para. 75, concluded as follows:

In the end, I do not see a great deal of difference in these various formulations. The trigger for an expectation that the police will give a person being questioned a caution respecting the right to silence must be less than reasonable grounds to believe that the person committed an offence, but must surely be more than speculation, knowledge that other persons suspect that person, or even reliable information that, to use the words of the Major Case Manual, a person's "background, relationship to the victim or the opportunity to commit the offence may warrant further inquiry."

111     I agree with and adopt Dambrot J.'s reasoning in Dalzell. [Emphasis added]

[45]         Justice Garton went on to consider the specific circumstances of the taking of Mr. Belbin’s statement in view of the caselaw:

112     In the present case, the police had the following information about Mr. Belbin:

1. Mr. Belbin lived on the same street where the abduction took place;

2. He told the canvassing officers that he was at home when the complainant was abducted. He also told them that he lived alone;

3. He had delivered newspapers to houses on the street up until about two weeks prior to the abduction;

4. He did not let the police into his apartment when he was canvassed, claiming that his apartment was messy because he had been cooking;

5. He appeared somewhat nervous during the canvas;

6. He did not provide the canvassing officers with contact information for his mother;

7. He had a history of apprehensions under the Mental Health Act, the last one having occurred some years earlier, in July 2006, when his mother voiced concern about his lack of personal hygiene;

8. At the time of the interview on January 13, 2012, the complainant's father, her grandfather, and R.G. had been excluded as contributors to the DNA found on the complainant's pyjamas; and

9. Mr. Greenspan and Mr. Hofstedter, who were asked to provide consent DNA samples as a result of having been named by the complainant's family, had alibis that would have been easy to confirm.

[46]         Justice Garton was not satisfied that any of these factors led to the conclusion that Belbin was being singled out for focussed investigation or being linked to the office.  In the final analysis, Garton J. concluded that no caution had been required in Mr. Belbin’s case:

120     Taking into account the totality of the above information and viewing it objectively, I find that it falls far short of tending to implicate Mr. Belbin in the crime (the Morrison formulation). It would certainly not have alerted a reasonably competent investigator to the realistic prospect that Mr. Belbin abducted the complainant (the Worrall formulation). Further, it did not provide the police with reasonable grounds to suspect that Mr. Belbin committed the offence (the J.R. formulation).

121     In Dalzell, Dambrot J. found that based on the information that the police possessed in that case, it could be said that the accused might have committed the offence. But in no relevant sense did the information implicate the accused in the offence or point to him as having committed it. I draw a similar conclusion in this case. Based on the information in the possession of the police, one could speculate that Mr. Belbin might have abducted the complainant, but the information did not, in any relevant sense, implicate him in the offence or point to him as having committed it. The information was certainly sufficient for the police to regard Mr. Belbin as a person of interest, whose background and opportunity to commit the offence "may warrant further inquiry." However, it was not enough to move him sufficiently along the spectrum from person of interest to suspect.

122     In Dalzell, Dambrot J., at para. 78, concluded as follows:

If information such as this were sufficient to compel the police to caution those that they wish to interview, it would cast the net far wider than I can conceive as being appropriate. It would serve to encourage silence from those with little or nothing to fear. It would hamper the effectiveness of legitimate police investigation, without meaningfully enhancing constitutional rights.

123     I have come to the same conclusion in the present case. I find that Det. Cst. Villaflor was not compelled to caution Mr. Belbin prior to conducting the interview on January 13, 2012.

124     The general tone of the 15-minute interview was friendly and polite. Det. Cst. Villaflor made no threats or promises. He offered no inducements. There was a complete absence of oppressive circumstances. The "operating mind" requirement was met. Based on all of the evidence, there can be no doubt that Mr. Belbin's statement to Det. Cst. Villaflor was voluntary. It is therefore admissible at trial.

[47]         In light of the caselaw, and regardless of which specific foundation of the analysis is applied, all of the circumstances leading up to, and during, the first interview of Mr. Garnier must be examined. 

The Investigation

[48]         Within the investigative triangle, the lead investigator was Detective Constable Neilsen.  At approximately 7:00 AM on September 15, 2015, she had made a notation in her police notebook that this was “a homicide investigation regarding Catherine Campbell” and that “the suspect was a person by the name of Chris Garnier”.

[49]         Although not requested by the investigative triangle, a surveillance unit was made available for the missing persons investigation.  Mr. Garnier was placed under covert surveillance.  The surveillance team referred to Mr. Garnier as “T1” or their “target”.  At that time, no one else was placed under surveillance or was a police target.

[50]         Detective Constable Neilsen, the lead investigator on this file, testified as follows respecting the resources available for the investigation:

A:         There were also, Sergeant Ron Legere was also there.  He’s from a surveillance unit and I was advised that they had already been asked to assist in any way they could in the investigation and they were prepared to give us their time for whatever we needed that day.

Q:        They being the surveillance team.

A:         The surveillance team, yes.

Q:        Ok, and what did you make of that?

A:         I was, I was a little surprised that they were already in place.  I didn’t actually ask for them and I didn’t really see the need for them yet just because we were in such early stages of the investigation.  Having said that, I certainly wasn’t going to send them away.  Anytime anybody offers to help, I’m certainly happy to take it and from previous homicide investigations inevitably you do need a surveillance team at some point.  So for them to be at our, available whenever we needed them was a good thing.

[51]         On cross examination Detective Constable Neilsen discussed the operations of the investigation triangle under her lead:

Q:        A command triangle is formed for all major case investigations as soon as reasonably possible, I assume?

A:         It is.

Q:        Is a triangle, the command triangle, is it, it’s not formed in every case I assume?  Is it depend on the type of case before a triangle is necessary?

A:         It is formed in all homicide cases.

Q:        All homicide cases.  What about missing person cases? Not always.

A:         I can’t really testify confidently to missing persons cases.

Q:        But in all homicide cases?

A:         Yes.

Q:        And this was a homicide case?

A:         It was.

Q:        And as the lead investigator, the information that you wrote down at 7:00 AM on September 15, 2015, was that this was a homicide investigation regarding Catherine Campbell and that the suspect was a person by the name of Chris Garnier, right?

A:         I did.

Q:        And that was your basic starting point for, that was the basic starting point for you as the lead investigator, correct?

A:         It’s information I was given as a briefing.

Q:        Information you were given by whom?

A:         We were briefed by the lead investigator for the missing persons case.

Q:        And the lead investigator for the missing person case, was that Cheeseman?

A:         It was.

Q:        And so Officer Cheeseman was giving the information that this, was he giving you the information that this was a homicide investigation as well or where was that coming from?

A:         No, that was a title I put on it as an entry point, not because I knew it was a homicide investigation as such yet, but I’m establishing why I’ve been called in.

Q:        Right, and that was your impression at that time.  That’s why you wrote it down in your memo book, right?

A:         It was.

Q:        And the starting point of Chris Garnier being the suspect, that’s coming from lead investigator Officer Cheeseman?

A:         Yes.

Q:        And that’s the term he used, correct?

A:         I don’t know if that’s the term he used.

Q:        Well clearly it was the term he used, Detective Constable Neilsen, that’s what you write down in your memo book notes, right?

A:         I’m writing down an introduction of the people involved in the file.

Q:        Right.

A:         And attaching these labels to them could be premature.

Q:        Well you attached labels to them, so I want to understand where that label comes from.  Is the label coming from Officer Cheeseman or is that the label that you put on Chris Garnier at 7:00 AM on September 15?

A:         That’s the label I put on him.

Q:        Ok.  So what label did Officer Cheeseman use?  Do you know?

A:         I don’t.

Q:        So he could have also used the term suspect?

A:         He could have.

Q:        Right.  And that could have formed your opinion, right?

A:         It could have.

Q:        And that was, that term that was put on Mr. Garnier at 7:00 AM, that was the term shared with other officers at the briefing meeting that morning, correct?

A:         With the triangle.

Q:        Yes, with the triangle, sorry. 

A:         Right.

Q:        So triangle would include Officer Withrow.

A:         Yes.

Q:        And Officer Bowers.

A:         Yes.

Q:        Anyone else who was in and out, you said there were people in and out of the briefing meeting, I understand that’s the triangle, but as far as other people in and out of the briefing meeting that would have been shared that information with, anyone else?

A:         Not that I recall, no.

[52]         Counsel went on to ask Detective Constable Neilsen about the timing of the first meeting of the investigation triangle and the first conversation with Mr. Garnier, and to question her about the significance of the notation “suspect” in her notebook:

Q:        And clearly we know the timeline, Detective Constable Neilsen, but just to be clear this is prior to Mr. Garnier being interviewed at his workplace which we know happened at 9:55 AM on September 15, 2015, correct?

A:         Yes.

…

Q:        Prior, just prior to the interview taking place, so you have this discussion with Constable Allison and you give him certain instructions.  I take it you, I take it you told Constable Allison that Mr. Garnier was a suspect, right?

A:         I told Constable Allison that Mr. Garnier was the last person that I knew of to see Catherine Campbell.

Q:        I take it you saw, you told Constable Allison that Chris Garnier was a suspect, right?

A:         I can’t say that I told Constable Allison he was a suspect.

Q:        You would not have told Constable Allison what was in your notebook which was that he was a suspect?

A:         I can’t say that I did, no.

Q:        But your impression was that he was a suspect, at least one suspect, right?

A:         Not at that point, no.

Q:        You wrote that in your notebook, Detective Constable Neilsen, and you’ve already accepted that your impression was that he was a suspect.  That’s what you were being told by Inspector or Investigator Cheeseman and you agreed with that impression that he was a suspect as of 7:00 AM in the morning.

A:         I didn’t agree that he was suspect in my opinion.

Q:        So you’d like to change your evidence from earlier?  You don’t think he’s a suspect at 7:00 AM?

A:         I think he’s the last person that saw Catherine Campbell that I’m aware of.

Q:        That’s not my question.  Was your impression at 7:00 AM that he was or was not a suspect?  Would you like to change your evidence from earlier?

A:         I don’t think I’m changing my evidence.

Q:        So he’s not a suspect?

A:         Not at 7:00 AM, no.

Q:        But that’s what you write in your notebook?

A:         It is written there, yes.

Q:        You agree that’s what’s in your notebook, right?

A:         I agree.

Q:        It’s a homicide investigation, suspect Christopher Garnier.

A:         I agree the word is there.

Q:        Right.  And you agreed with me earlier that your notebook is very important as to this, the things that you write in there, right?

A:         It is.

Q:        You don’t just write down that somebody’s a suspect lightly I take it, right?

A:         No, not lightly.  In the initial moments of writing, jotting notes from the briefing I did put labels on Christopher Garnier and Catherine Campbell.

Q:        Right.

A:         Neither of which were proven as of yet.

Q:        You know though it doesn’t need to be proven at that point, we’re just talking about your impression based on the investigation.  We’re not talking at 7:00 AM in the morning in the course of a police investigation, we’re not talking about proof in the sense of a criminal court, proof beyond a reasonable doubt, we’re just talking about your impression at 7:00 AM in the morning you had agreed with me earlier that Inspector, the Investigator Cheeseman had told you that Chris Garnier was a suspect, right?

Court:   I’m just going to interrupt your cross examination.

Q:        Sure.

Court:   I looked back at my notes and I’m trying to keep up of course, I don’t see that that answer was given and so maybe you could refer me back to where that was because that’s the second time you’ve made reference to it and again my notes aren’t perfect as I’m writing them down.  What I had noted was that she didn’t know if Cheeseman used the term suspect and that was repeated again.  So I’m not sure if you’re notes reflect something different or if I missed it when you were saying that.  You have several people sitting at counsel table with you that might be able to assist on that point and if not we can have a playback just to clarify that.

[53]         At this point, after some discussion, defence counsel opted to move on.  The questioning continued:

Q:        I take it, Detective Constable Neilsen, that you would expect that the officers would give Mr. Garnier some kind of a primary caution about giving statement to officers, about the evidence being used against him potentially?

A:         Did I ask them to give him a caution?

Q:        Would you expect the officers to do that?

A:         No.

Q:        And you didn’t instruct them to do that?

A:         I did not.

Q:        Did you instruct them specifically not to do that?

A:         I didn’t instruct them specifically not to do that, but I asked them to speak to him as a witness.

Q:        Can you see any downside to the officers giving him a primary caution at that time?

A:         I, it didn’t ever occur to me to have him cautioned.  I didn’t think of him as a suspect.

Q:        Yet, you still agree with me that you wrote suspect in your notebook, correct?

A:         I agree I wrote the word, yes.

Q:        You labelled Mr. Garnier as a suspect in your notebook, correct?

A:         I did, yes.

Q:        And you understand that that label as a suspect has a certain meaning in police investigations, correct?

A:         It does.  At the time it was a label I put on in the haste of doing my initial thoughts on why we were gathered there that day.  I did not think of Mr. Garnier as a suspect at that point.

Q:        So your memo book notes are not true?

A:         I wouldn’t say not true, I agree I wrote the word suspect.

Q:        Did you ever correct your memo book notes?

A:         I don’t change my memo book notes.

Q:        No, but even later put in a note to say, my initial thoughts were that he’s a suspect but he’s no longer a suspect.

A:         No.  No, I didn’t.

Q:        The only label you ever give Mr. Garnier in your notebook, in your memo book notes, the only label you give him is that of suspect, correct?

A:         Are you asking do I call him witness A or some other sort of thing?  No.

Q:        Person of interest or witness or…

A:         No, I don’t.

Q:        And I think you agreed with me earlier, Detective Constable Neilsen, that if Mr. Garnier is a suspect at the time of that interview, he should have been cautioned, correct?

A:         If he was a suspect, yes.

Q:        Right.

A:         If I had have thought he was a suspect, I, the very last thing I would have went and done was went and interviewed him at that point.

Q:        Why?

A:         I wouldn’t interview a suspect until I had more of a basis of investigation.

Q:        You wouldn’t interview a suspect that you believed was the last person seen with somebody who is now missing?

A:         I’d interview a witness, yes.

Q:        Right.  But he was the last person, whatever you want to call him, he was the last person seen with Ms. Campbell, right?

A:         To that point, yes.

Q:        Right.  So you would want to interview Mr. Garnier no matter what, wouldn’t you, given that he’s the last person to have seen Ms. Campbell?

A:         Correct, we wanted to talk to him as soon as possible.

Q:        Right.  So regardless of what label he has on him, you would want to interview the last person to have seen Ms. Campbell, which was Mr. Garnier, right?

A:         Yes.

[54]         On re-direct, Detective Constable Neilsen was again questioned about the 7:00 AM notation of the word “suspect”:

Q:        What time is the next entry in your notebook?  If you can refer to your notes.

A:         I will.  The time of the next entry is 9:15.

Q:        Ok.  You agreed with my learned friend’s questions to you that there was no other label attached to Christopher Garnier that you had used.

A:         No.

Q:        Ok.  I’m going to ask you to look at your notes between 7:00 and 9:15 and see if that clarifies anything in terms of how you referred to Mr. Garnier.

A:         I refer to him by his name, Chris Garnier, or his last name, Garnier.

Q:        Right. 

A:         Again, Garnier, his last name.  Again, Garnier, his last name.  And then we get to 9:15.

Q:        And just before 9:15.

A:         Just before 9:15?

Q:        Right.  Do you attach any other way of describing Mr. Garnier?

A:         I call him the last known person to see Campbell.

Q:        Thank you.  With respect to the questions about charging Mr. Garnier with obstruction.  At any point did Detective Constable Allison, first of all, you agreed that Detective Constable Allison stated to you that Mr. Garnier was not forthcoming.

A:         Yes.

Q:        At any point did he say Mr. Garnier was lying?

A:         No.

Q:        In your cross examination, you said that the last thing that you would have done had you known he was a suspect was to interview Mr. Garnier right away, correct?

A:         It was.  Yes.

Q:        And you would agree that during that cross examination my learned friend indicated that she said something and I’m going to paraphrase because I don’t have exactly word for word, but if he was a suspect or a witness your main focus was to talk to him right away and you said yes.

A:         It was.

Q:        Ok.  How do you reconcile those two?  On the one hand you said the last thing you’d do would be to talk to that witness right way, the suspect right away if he was a suspect, but you also agreed that it was your focus to interview whatever label you put on him right away.  How do you reconcile those two?  Just to clarify that for the court.

A:         Mr. Garnier is a person that I want to speak to right away because I fear for Catherine Campbell’s life, her safety.  I don’t know where she is.  I don’t know what’s happened to her.  I can’t find another person to reach out to besides him to say what happened, where did she go?  To think of Mr. Garnier as a suspect or somebody who actually killed Catherine Campbell, I’ve had other investigations, homicide investigations, the very last thing I would do is interview a suspect in a homicide.  I would want to conduct a full investigation.  I wouldn’t want to tip that person off to tell them I think you killed this person.  I would want to do a full investigation and gather as much evidence as I could before I went into interrogation situation with a suspect to interrogate them, did you kill this person.

[55]         Detective Constable Neilsen suggested that Detective Constable Cheeseman may have participated in the labeling of Mr. Garnier as a suspect.  During his testimony Detective Constable Cheeseman described the process by which missing person investigations will, on rare occasions, lead to homicide investigations:

Q:        Ok, and how is it, how does it come to be that they go to homicide?

A:         As per a directive from the Superintendent of the Criminal Investigations Division, I’ve been directed so that when I have a file which has some concerning factors in it, he has asked that any file that I recognize to have some concerning factors that I reach out to them for their assistance because they would rather they get involved in a file which turns out not to be a homicide at the front end versus me keeping a file for a long period of time and then unfortunately them being days or weeks behind when it becomes evident that it’s possible a homicide file.

Q:        And when you’re saying that they get involved at the front end, you’re talking about the Homicide Division?

A:         Yes.

Q:        And what’s the difference in resources between the two units?

A:         Unfortunately, at the time of this file, there was only myself who looked after missing persons.  I now do have a partner for the last year, but there is the two of us versus the Homicide Division which has I believe three teams made up of approximately six to eight police officers along with a supervisor of each team.

Q:        So when a missing persons file, in your experience, has gone to homicide, among those how many return as a missing persons case?

A:         Like I said, I estimate three to five I reach out to them for their assistance.

Q:        Yes.

A:         Of those numbers, right now, I average just under two a year which unfortunately are deemed discovered to be homicide files.

Q:        What are some of the specific concerns that you were talking about that raise your reason to shift it over to homicide?

A:         Obviously it was the first time I had a missing persons file involving a fellow police officer, not within our division, our organization, but a police officer in the province of Nova Scotia.

Q:        Ok, I’m just going to stop there.  I’m just talking about generally.  I’ll get into the specifics about this case.  Generally speaking, why would you refer something, what are those special circumstances that would get you to shift the file?

A:         Yep, if for example no one had heard from the individual for a period of time, both within their family group and their friend group.  No activity on social media.  History of any domestic violence involved with a partner or what not.  Mental health issue.  Any history of suicide, drug usage.  One of my first actions is to utilize a media release and generally speaking if the media release doesn’t turn up any information or the person comes forward within a 72 hour period, then that’s concerning to me.  Another thing that I do on the front end is I will check their banking information.  Under the new Missing Persons Act in the Province of Nova Scotia allows institutions to give me information with regards to someone’s banking.  So in those cases if they’re not active on social media, family members haven’t heard from them, no activity on their bank, and if they have any of the other issues that I mentioned, mental health, suicidal thoughts, those are some of the things that cause me to reach out for help.

[56]         Detective Constable Cheeseman then described attending at Ms. Campbell’s apartment in Dartmouth during the missing person investigation, on September 14:

Q:        What did you do?

A:         I just did a cursory search of the apartment ensuring that there obviously wasn’t anything concerning, obvious signs of you know possibly a struggle or if she had been had any medical trauma or again whether or not her purse was in the apartment.  Another indication that we often look, I look for is to see if there’s food in the refrigerator which is molding or what not, the cat litter box, that type of thing to determine how long it appears as though someone has or hasn’t been in the apartment.

Q:        What did you learn about the cat litter box?

A:         It appeared to be, I think my actual words were it wasn’t, grossly overrun with feces, but there was some feces I believe outside of the litter box, which gave me the impression that may be the cats hadn’t been tended to in probably three to four days was my best estimate at that point.

Q:        Did you look in the fridge?

A:         Yes, I did.

Q:        What did you learn?

A:         I didn’t find anything grossly molding or anything like that.  So again, not to lead me to believe that we’re talking about weeks versus days since someone had been there.

Q:        Was there anything else that you learned from the apartment that made you think how long she might have been gone?

A:         I always check the newspaper if they have a newspaper.  I don’t recall her getting a newspaper.  I do recall her service issued Truro PD jacket was accounted for in the apartment, but nothing else that I can think of off the top of my head.

[57]         Detective Constable Cheeseman continued to explain:

Q:        What was the significance of the fact that she was a police officer during your processing of what was going on?

A:         As I mentioned, it was the first time I had ever had to consider sending out a media release about a fellow police officer.  Given what Inspector Hearn had said about her work record and being timely for work and that, I did think it was out of character that she’d failed to attend work and at least contact them because for one thing under the Police Act, if a police officer fails to show, attend work that would be a violation of the Police Act.  So given that, I felt as though there could be a possibility that something had happened to her, either an accident.  Given the fact that she had a history in her background of a companion who had taken their own life, unfortunately individuals who have a loved one or a spouse or a friend who has taken their own life, they become more susceptible to considering self-harm themselves.  So I was concerned that that may have been a possibility or coupled with the fact that she was a police officer had something happened to her.

Q:        In the course of her work, is that what you mean?

A:         In the course of her work or you know travelling between Halifax and Truro, whatnot.

…

Q:        So you get to the briefing meeting.  Who was present?

A:         Staff Sergeant Richard Lane, Sergeant Jason Withrow, Detective Constable Neilsen, Detective Constable Bowers, Sergeant Legere, Detective Constable Boutilier and Detective Constable Mansfeld along with myself.

Q:        Describe what the meeting was like.

A:         I gave them an account of what I knew of the file and my actions the previous day on the file.

Q:        Who was in charge of the meeting from your perspective?

A:         Staff Sergeant Lane would be obviously the highest ranking officer in the room, so it’s his section which homicide falls under his section, but Sergeant Withrow would have been the supervisor looking after the team.

Q:        What did you do as a result of that meeting?

A:         I was asked to complete a couple tasks which I normally do for a missing persons investigation.  That would have been to have reached out to CATSA which is an acronym, I don’t know specifically what CATSA stands for, but it’s an acronym for the airports across the country track and monitor passengers, so in a case of my files, I’m able to reach out to them to ask if someone has flown in the recent history since the time that they’ve been reported missing.  So I was asked to do that to reach out to an individual by the name of Terry Ganier to see if Ms. Campbell had flown recently and I also advised them that I would reach out to the financial institutions to see if there had been an activity on any accounts, bank accounts that Ms. Campbell would have had.

Q:        So you advised them being the briefing people at the team that morning?

A:         Yes that those were two, the next tasks that I was going to do concerning the missing persons investigations.

Q:        Who tasked you to reach out to CATSA?

A:         Would have been Sergeant Withrow.

Q:        Alright.  And what time or how long were you at that meeting in the morning?

A:         My best estimate would have been no more than 45 minutes or so.  My account would have taken probably 15-20 minutes to have told them what I had done the day before along with then advising them of the two tasks that I was going to complete for the file as well.

Q:        When you left to complete those tasks, who was left at the meeting?

A:         I believe the other officers who I listed there.

Q:        During the time you were at the meeting, did you learn about Christopher Garnier?

A:         No, I did not.

Q:        Did you learn anything further during the time you were at the meeting about Catherine Campbell?

A:         No, I did not.

…

Q:        So how did it become, how did you become aware that Christopher Garnier was involved in the charges in this case?

A:         I’m not going to say no different than any other civilian person, but I believe it was possibly on Thursday I was made aware as any other officer in the building that there was possibly a suspect identified and the case was moving along quickly.

Q:        The Thursday being what date?

A:         17th.

[58]         On cross-examination Detective Constable Cheeseman stated:

Q:        And what I would like to do is I would like to go back into the apartment that you went in by yourself and you’ll describe to His Lordship what in fact you found.  Was there anything else that you found in that apartment at that time?

A:         May I refer to my notes?

Q:        Please do if you need to refresh your memory.

A:         Ok.  I had written empty beer cans in the trash can.  Her daytimer was on the fridge showing that her schedule was on in the daytimer and it indicated that she was due for work that morning and I noted that it indicated that she appeared as though she was aware that she had to attend work that day, and then in the living room I had two beer cans on coffee table.  One appeared to be full.  One appeared to be empty.  An Apple Macbook on the sofa and the television was on.  I noted her Truro Police Department patrol jacket hung over chair in the dining room.  Cars keys hung on hook next to the entry door.  Constable McCulley I wrote advised that her apartment key is not on the key chain, however.  I took note of the closet, storage closet, cat litter box dirty, cat feces on floor next to the box indicating litter box has not been cleaned for a few days was what I wrote.  Spare bedroom bed made, room neat and tidy.  Bathroom, neat and tidy.  Master bedroom, alarm clock on.  I noted Q104 was the radio station.  Bed made.  Circulating fan was on.  At the foot of bed clothing on the floor.  I noted the clothing that I seen on the floor there along with I noted that they were folded and not, didn’t indicate as though they were thrown on the floor.  Flip flops at the door way spread out apart from one another, possibly due to the cats I thought.  And then her vehicle, sir, was located in the parking garage in spot number 34 and then I provided the temporary plate number for the vehicle along with the fact that it had two volunteer firefighter plates in the trunk of the vehicle.  Energy drink in the console along with a cigarette package in the driver’s side door and then wallet holder located in the passenger seat pocket and that was where I have leather check, but I think I was trying to tell myself that I located her wallet.

Q:        Ok, just to go back, Detective Constable Cheeseman, to the beer.

A:         Yes.

Q:        Did you have an occasion to count the number of cans of beer that were in that apartment, either in the garbage, on the counter or in the living room?

A:         No I had not.

Q:        Can you tell His Lordship whether or not there was more than one?

A:         I have empty beer cans in the trash can is what I had.  And the reason I wouldn’t have gone into the garbage can, sir, would have been the less interaction I have with articles in the apartment is better because I don’t know if that scene is going to have to be forensically examined at a later date, so I called it more of a cursory search than a search.

[59]         As to the meeting where he briefed the triangle on September 15, Detective Constable Cheeseman said:

Q:        Who was it that who told you go to that meeting?

A:         Staff Sergeant Gaudet I believe would have been the one that would have relayed to me that my presence was requested at the briefing.

Q:        Were you aware at that time that there had been an investigative triangle formed?

A:         No I was not.

Q:        Ok.  So you attended that meeting.  Where was that meeting held?

A:         That would have been held at Headquarters in what we call the Meisner room, which is named after a former officer of the department.

Q:        Just a boardroom or is that where major investigations set up headquarters?

A:         That’s correct, that’s where an ongoing file would have used as a headquarters, yes.

Q:        So when you arrive there there were only 7 people in that room?

A:         Yes, according to my notes.

Q:        According to your notes.  Ok, now, what was the first thing that happened when you went into that room?

A:         I was asked to give my account of my activity the day previous.

Q:        Ok, were you told anything before you’re asked to give your report?

A:         I don’t believe so, no.

Q:        Ok.  Were you told anything about that they were concerned about Catherine Campbell and the fact that she may be dead?

A:         No, I was not, no.

Q:        So you came in, you saw these officers, you sat down in a chair and who was it that asked you to give the report?

A:         Again, Staff Sergeant Lane would be the highest ranking officer, but normally he doesn’t facilitate the briefing, it would have been Sergeant Withrow that would have asked for my account.

Q:        Ok.  Now when they ask for your report, exactly what did you tell them?

A:         I would have started in great detail with regards to my initially phone call with Officer McCulley, him and his partner asking for my assistance with regards to a missing Truro police officer Catherine Campbell.  I would have walked them through my attending the apartment.  My observations at the apartment along with me returning and speaking with Staff Sergeant Gaudet and the decision being made with regards to the media release going out.

Q:        So did you report to this major crime unit exactly everything that you saw in the apartment of Catherine Campbell?

A:         I would’ve gone through my walk through of the apartment, yes.

Q:        Did you give them a copy of your notes?

A:         I don’t believe because I would’ve continued making notes well into that day up to 14:00.  So I wouldn’t have given them a copy of my notes.

Q:        So at the conclusion of the meeting, before the conclusion of the meeting, did they ask you any questions?

A:         I would say they probably definitely did, yes.

Q:        Do you remember what questions they asked of you?

A:         No I do not, sorry.

Q:        Did you notice any of the members who were at that meeting taking notes?

A:         I believe they would’ve, yes.

Q:        And in particular do you know who those officers were?

A:         No, I’m sorry, I do not.

Q:        You say you were there for approximately 45 minutes, how long would it have taken you to give your findings from the apartment?

A:         An estimate, sir, probably would’ve been 20-25 minutes I would’ve gone through my entire activity for the day and then I would’ve said the next course of action which I normally take concerning missing persons investigations would be to reach out their banking to find out if they had flown along with continue to reach out to family members, friends, what not to see if anyone had seen or heard from her.

Q:        Did Sergeant Withrow instruct you to do that?

A:         I probably would’ve have told them my next course of action under a typical missing persons investigation would be to do this and I believe he said ok well you look after those tasks and that’s when I would have left the briefing to go start doing that.

Q:        At the conclusion of that meeting, did the homicide unit instruct you that they are taking over the file?

A:         I didn’t stay for the conclusion of the meeting.  I would have left after my part of the briefing was concluded.

Q:        Prior to you leaving the meeting, did the major crime unit, especially Sergeant Withrow or Staff Sergeant Lane say to you fine thank you very much Mr. Cheeseman for your work we are now taking over this file?

A:         What has happened in most cases is they try to get me to stay with them in the investigation and that’s when I have to explain to them that I have 1500 files a year, I need to go back to look after the other files that are now in my queque and they try to get me to do tasks and I tell them I have to go back and do the stuff that I do on a daily basis.  So that’s when I basically tell them I’ve reached out to you for assistance because I can’t handle a file of this scope.

Q:        You said reached out for assistance, but prior to you leaving the day before you had not notified the major crime unit though had you?

A:         No I had not, no.

Q:        So when you went to this meeting at 8:00 it had already been set up by someone, but not by you?

A:         That’s correct.

Q:        Ok, so at the time when you left the meeting, did Sergeant Withrow or Staff Sergeant Lane say to you thank you very much Mr. Cheeseman but we are now taking over this file?

A:         I don’t think that was expressed to me.  I probably would have been the one to have said are you guys now taking this.

Q:        And what would their answer have been?

A:         I don’t recall what their answer was, but I, again, I have trouble at times getting the ability to walk away from a file as opposed to being said you’re done with it now because again they expect me to continue to help but I don’t have the ability to help at that point.

[60]         During the briefing, Detective Constable Cheeseman merely updated the triangle about his involvement in the missing persons investigation on September 15, 2015.  He said nothing to suggest to Detective Constable Neilsen that Mr. Garnier was a suspect.

[61]         Corporal Allison testified that when interviewing an innocent bystander or mere witness, he would call them in advance and give them the option of attending at the police station to be interviewed or meeting somewhere else.  Corporal Allison had two telephone numbers for Mr. Garnier.  He was not sure if he had found Mr. Garnier’s telephone numbers by searching Versadex or if they had been given to him by a member of the investigative triangle.  Yet, instead of calling Mr. Garnier to arrange a meeting on September 15, 2015, Corporal Allison drove to the address he had for Mr. Garnier on Vimy Avenue in an effort to surprise Mr. Garnier and catch him off guard.  When he determined that Mr. Garnier no longer lived on Vimy Avenue, instead of then calling him, Corporal Allison searched for Mr. Garnier on the internet, found him on a workplace website and asked another member of the Halifax Regional Police who was also noted on the website about Mr. Garnier.  That member did not know Mr. Garnier.

[62]         Having no other recourse, Corporal Allison eventually called Mr. Garnier, said he was a police officer, told him that he wished to speak with him in person as soon as possible, and asked where they could meet.

[63]         Corporal Allison and Detective Constable MacLeod immediately attended at Mr. Garnier’s workplace on Frazee Avenue.  Mr. Garnier was waiting in the parking lot.  He got into the back of the police vehicle as suggested by the officers.  The vehicle did not have anything separating the front seats from the rear seats.  The police did not automatically lock the rear passenger into the vehicle. The parties introduced themselves and Corporal Allison and Detective Constable Macleod made it clear that they were police officers.  An audio recorder was produced by Corporal Allison in plain view of all parties.

[64]         With respect to the status of the investigation, and of Mr. Garnier, Corporal Allison testified variously:

Q:        There can be more than one suspect in an investigation, you agree with that?

A:         Yes.

Q:        And I take it you’d agree that an individual’s status can change from being a witness to suspect if information comes to light that shows that person being complicit in a crime, right?

A:         Yes.

Q:        Their status can change.

A:         Yes.

Q:        And if that status change happens, well it can happen as you’re speaking to the person, right?

A:         That’s right.

Q:        And if that status change from witness to suspect occurs when you’re speaking with them, you would agree, I take it, that you should stop and caution the person, correct?

A:         Yes, in my mind if I believe that their, that they changed from a witness to a suspect, yes.

Q:        Right.  And what kind of, what would lead you to make that change?  I take it if they say something that suggests in some way they are move involved then what you originally believed, that would make you change your opinion from being witness to suspect, wouldn’t it?

A:         It would depend, of course, what they said, but if they come out and said something you know like I, you know I had a knife and I didn’t mean to, yes that would obviously raise my suspicion level to the point where they should be cautioned, yes, and possibly arrested.

Q:        The person lying to you during an interview might cause you to change your opinion from that person being a witness or a suspect, would you agree with that?

A:         Not necessarily, there’s people that have lied during witness interviews and it wasn’t because they had anything to do with a homicide, not a homicide, a crime, it was for other reasons.

Q:        This interview that we’re going to talk about in just a second, the interview that you do with Mr. Garnier on September 15, 2015, in the cruiser, in the unmarked car, you believed Mr. Garnier was lying to you, right?

A:         Yes, I did.

Q:        And you believed that he as lying to you because he knew more information than he was saying, correct?

A:         Yes.

Q:        It made you, the way that interview was going, it made you believe that he was more involved in at that point the status of Ms. Campbell as a missing person than what he was admitting, correct?

A:         Yes.

…

Q:        So the focus from this briefing meeting and from I guess from your review of the file, I guess it’s all part of your knowledge base, but your focus from the file you’ve reviewed and from the briefing meeting, the focus is Mr. Garnier, correct?

A:         Yes, that was the last person that, that was our starting point.

Q:        Right.

A:         So from that point on, yes.

Q:        He was certainly the lead that you had at that point, right?

A:         Yes, he was the last, that was the starting, when they had started their investigation as far as what was relayed to me was this was the last point, the last person that had contact with her that we knew of.

Q:        Right.  And it was a priority, I take it, to get out and interview him as soon as possible?

A:         Uh, yeah, it would have been, yes, they said, you know can you go do this task so we can eliminate him and move on to something else.

[65]         Counsel went on to question Corporal Allison about the attempts to locate Mr. Garnier:

Q:        And so you had Mr. Garnier, or at least a number associated with Mr. Garnier from that morning, right, the 902 number that’s in your notebook?

A:         Yes.

Q:        There are two phone numbers in your notebook.

A:         Yes.

Q:        At that same time, as I said, interview Chris Garnier, the address there of 45 Vimy and then there’s two phone numbers that are listed right after the address.

A:         Yes.

Q:        Are both of those phone numbers, as you understood it, were both of those phone numbers associated with Mr. Garnier, with Chris Garnier?

A:         I don’t recall if they’re both, they would’ve, they would’ve been, I put them in my notebook as either someone gave them to me or I found them on Versadex.  I should say somebody from the investigative triangle providing them or Versadex.

Q:        Ok.  And then it said, as I said earlier in parenthesis, father Vincent.  Where did you get that information from?

A:         Once again from either the electronic, reading the electronic file or from the investigative team.

Q:        Ok.  And then there’s an address on Cedarcrest Drive, was that supposedly the address of Vincent?  Or what did you understand?  Why do you write that in your notes?

A:         That was just another address to possibly check if we couldn’t find him.

Q:        To find Chris Garnier.

A:         Yes.

Q:        And then there’s another phone number, a 446-9739, what was that associated with, do you know?  Was that with Vincent?  Was that a third number for Chris Garnier?

A:         Another number to try.

Q:        Ok.  You weren’t sure who it might have been associated with, but it was for sure associated with Chris Garnier?

A:         Yes.

Q:        Ok.  Now would it not be your typical approach, Corporal Allison, that if you have a phone number for someone who is a witness that you would not just call the phone number to make arrangements to meet with them?

A:         Yes.

Q:        But you didn’t do that that morning, right?  That wasn’t your first step.

A:         No, the first step was to go to 45 Vimy.

[66]         Corporal Allison described attempting to find Mr. Garnier at the Vimy Street address:

Q:        You didn’t try any of those phone numbers that you had before you left the station.  You didn’t try any of those three phone numbers that you had prior to going to Vimy, right?

A:         Right.

Q:        And you arrive at 45 Vimy unannounced I take it, right?

A:         Yes.  Yep.

Q:        And you testified, I believe, that you go there to 45 Vimy as you said that address was either obtained from the triangle or from Versadex.

A:         Right.

Q:        Right.  And then you go there and you go to the manager’s office.  Is this a building of some sort?

A:         Apartment complex.

Q:        Apartment complex.  So you go there and you go to the manager’s office, right?

A:         Yes.

Q:        And you inquire as to which apartment Chris Garnier was living in.

A:         Yes.

Q:        At that point, right?

A:         Yes.

Q:        And you’re advised by the manager that he was not living there anymore.

A:         That’s right.

Q:        Right?

A:         Yes.

Q:        Now I take it that if you found, I know these things are always difficult because you know think back what you might have done, but I take it the point was to approach Mr. Garnier, Chris Garnier, unannounced, right?

A:         In person, yes.

Q:        Right.

A:         Yes.

Q:        And unannounced?

A:         Yes.

Q:        Because, I take it, if you would have found Chris Garnier at Vimy, which you believed at that time to be his residence, you were just going to pop in on him, right?

A:         Go in and knock on his door, yes.

Q:        Yeah.  And even by the time you’ve arrived at Vimy, you’ve still not made any attempts to call those phone numbers, right?

A:         No.

Q:        Now your notes for 9:30, your memo book notes are Wendy Sceviour and there’s a date of birth there.

A:         Yes.

Q:        And then it says, Jared Fancy share and then there’s edited, 2003 Chev Cavalier, home address, sublet apartment until July.  That’s the entirety of the note you have for 9:30 in the morning.

A:         Yes.

Q:        You agree with me that that doesn’t say where you were at 9:30, right?

A:         Yep.

Q:        Do you agree with me?

A:         Yes.

Q:        It does not say what you found out, right?

A:         That’s what it, well, what it says was that somebody else is subletting the apartment.

Q:        That’s what it means to you.

A:         Yes.

Q:        Ok.  And that’s, I take it, I guess that’s the manager or whatever that you spoke to.

A:         That’s right.

Q:        Wendy, right?

A:         Yes.

Q:        Would you agree with me that the note itself would not tell a reader to that note that Mr. Garnier no longer lived at that address?

A:         To someone else who hadn’t written the note, yes.

Q:        I mean, I take it, you know what you meant?

A:         Right.

Q:        But reading it objectively it would be very difficult to figure out what that note meant as far as Mr. Garnier living there or not living there, right?

A:         Right.

Q:        Ok.  So you get this information from Wendy and then you still don’t call Chris Garnier, right?

A:         Um.

Q:        You’re next step is not to call those phone numbers for Chris Garnier?

A:         I don’t recall, actually, I can’t remember if I called beforehand and didn’t get a reply and started looking on the internet.  So, I can’t say one way or the other.

[67]         Counsel then questioned Corporal Allison about his next steps after failing to locate Mr. Garnier at the Vimy Street address:

Q:        Well I’m going to suggest that the next thing you do is after you leave, are you actually doing the internet search from Vimy or have you left there by then?

A:         No, we were outside, I was sitting in the police car.

Q:        Ok.  So you come out of Vimy finding the information that you found out, which now you don’t have any address obviously, right?

A:         Right.

Q:        For Mr. Garnier, and then you start doing an internet search and you find a website for Safety Path Inc.

A:         Yes.

Q:        Right, which had Chris Garnier listed on it.

A:         Yes.

Q:        But you have no memory, I take it, Corporal Allison, of having called Chris Garnier before doing that internet search.  Would that be fair?

A:         That’s possible that I didn’t call him before that, yes.

Q:        Right.  So you do the search and you find Chris Garnier and then another person I believe, I don’t know if you said you knew him from the website or you knew him, but you knew him anyway when you say the name, this Mr. Hartlen?

A:         Yes, Mark Hartlen.  Yes.

Q:        And you knew that he was, what was he president of the Regional Police Association?

A:         Regional Police, yes.

[68]         Corporal Allison described his conversation with Mr. Hartlen, in which he was attempting to identify Mr. Garnier’s workplace:

Q:        ...  And did you know anything about this Safety Path company, or did you come to learn anything about it during this phone call as to have that may have been or not associated with Chris Garnier?

A:         Mr. Hartlen did indicate to me there that he thought that Mr. Garnier was working for his father.

Q:        Ok.

A:         At this company.

Q:        And that his father was what to this company?  What were you learning on that phone call?

A:         That he owned the, that he owned the company or managed it or something like that.

Q:        And I take it you’d agree with me, Corporal Allison, that there is absolutely no mention of this conversation with Mr. Hartlen in your memo book notes.

A:         Right.

Q:        Right?  Agreed?

A:         Yes, there’s no mention of it, no.

Q:        And is that phone call with Mr. Hartlen, is that still taking place while you’re sitting outside of Vimy?

A:         Yes.

Q:        And you’re obviously in the presence of Detective Constable MacLeod?

A:         Yes, yeah, he’s in the car with me.

Q:        Then, so you don’t get anywhere with Mr. Hartlen, and it’s only at that point, Corporal Allison, that you decided you would try those phone numbers for Chris Garnier.

A:         Yes.

Q:        Because really you had nothing else to go on, right?

A:         That’s right.

Q:        No other addresses or a workplace, but you did have these phone numbers since sometime around 8 o’clock in the morning that morning, right?

A:         Yes.

[69]         Counsel pursued the question of why Corporal Allison had not tried the phone numbers for Mr. Garnier by this point in the investigation:

Q:        So I think you had said, Corporal Allison, in examination in chief, and please correct me if I am wrong or you remember it differently, but I thought you said in examination in chief that you were not sure when you got Mr. Garnier’s phone number.

A:         Right.  I don’t know.  I can’t tell you the exact time.

Q:        Fair enough.

A:         I don’t know if it was during the briefing or afterwards when I left and checked Versadex.

Q:        But certainly you had the number prior to leaving the detachment?

A:         Yes.

…

Q:        I guess more, numbers actually, you had three numbers before you left the detachment.

A:         Yes.

Q:        Yet, instead of just calling him to ask if he could speak to you for a few minutes you show up unannounced at what you believe to be his residence at that time, right?  At 45 Vimy.

A:         Yes.

Q:        And when that doesn’t work, you do an internet search and call a person that you know is listed on the Safety Path website to try to find out where he works, right?

A:         Yes.

Q:        You were trying to show up to Mr. Garnier unannounced.

A:         Yes, if possible, yes.

[70]         The cross-examination moved on to the actual conversation between Corporal Allison and Mr. Garnier:

Q:        And even once this interview is started, Corporal Allison, you don’t start off the interview by telling Mr. Garnier why you had chosen to interview him specifically, right?

A:         No, not at the start, no.

Q:        Right.  You certainly don’t start out by telling Mr. Garnier that the police had viewed video from the Ale House, right?

A:         Right.

Q:        But that was a fact, right?

A:         Yes.

Q:        That was one of the reasons you’re there to see him specifically, right?

A:         Yes.

Q:        And you certainly did not tell Mr. Garnier at the outset of this interview that he was the last person to have seen or heard from Ms. Campbell in the early hours of September 11, 2015, right?

A:         Right.

Q:        But that, again, seemed to be a fact as far as the investigation was playing out at that time, right?

A:         Yes.

Q:        And you certainly did not tell Mr. Garnier that he was under any kind of surveillance during that interview, correct?

A:         Right, and I didn’t, I wasn’t aware of that myself.

Q:        You’re saying you didn’t know about that yourself.

A:         Yes.  That wouldn’t be something if I did know about it that wouldn’t be something that I wouldn’t that I probably wouldn’t disclose anyway.

Q:        You wouldn’t likely share that, right?

A:         No.

Q:        I mean the idea from the briefing meeting, I take it, was that if surveillance, you said surveillance was being offered.

A:         Yes.

Q:        So that if surveillance was going to be done, it was your understanding it was going to be a covert surveillance being done, right?

A:         Right.

Q:        Now I’m going to suggest, Corporal Allison, you said you know you don’t get out of the car, you’re in the driver’s seat, Detective Constable MacLeod’s in the passenger seat.

A:         Yes.

Q:        Detective Constable MacLeod texted Sergeant Legere who was in charge of the surveillance team as I understand it from the car while the interview with Mr. Garnier was going on to ensure that, or to see whether, maybe not ensure was the right word, to see whether surveillance was in place.

A:         That’s possible, yes.

Q:        Do you recall him texting from the car to someone, whether you knew who or not, but Detective Constable MacLeod was using his cellphone, as I understand it, texting the surveillance team to see whether surveillance was in place for this interview as it was happening.  Did you know that?

A:         I knew right after the interview that he had gotten surveillance set up, yes.

Q:        Well this would be about, I’m sure exactly, but some time fairly early on in the interview that from the car, so as Mr. Garnier, as I understand it, is in the car, in the back, you and Detective Constable MacLeod in the front, that Detective Constable MacLeod sends this text out to the surveillance team to see if they’re in place.  Did you know about that?  While the interview is still going on.  Early on in the interview.  Fairly early on in the interview.

A:         I don’t specifically recall that.  I know he was texting.  He definitely wasn’t talking to anybody, he was texting people for sure.

Q:        Did you see him texting people while the interview was taking place?

A:         Yes, well, I mean I’m turned around like this and Detective Constable MacLeod is here, so I see him on his phone, yes.

A:         And just for the record, My Lord, as the witness was saying that, he just sort of turned around his right, sort of looking over his right shoulder a bit.  So you could see, I mean when you’re turned to the right, you’re obviously trying to make, I take it, some kind of eye contact with Mr. Garnier in the back, right?

A:         Yes.

Q:        Rather than just sitting, looking forward having a conversation.

A:         Right.

Q:        You’re trying to turn around in your seat to look at him?

A:         Yes.

Q:        And as you’re doing that you can see Detective Constable MacLeod texting someone.  Is that fair?

A:         Yes, he was on his phone, yes.

Q:        So, I take it, it’s quite possible, in your view, that he might have been texting the surveillance team.  Would that make sense to you?

A:         Yes.

…

Q:        And again, I’m not going to read all of these to you, Corporal Allison, but if you want to look at them, you question his truthfulness, you and or Detective Constable MacLeod question his truthfulness pretty much throughout the rest of this interview.  Pages 38 all the way to 44.

A:         Yes.

Q:        There’s various times at which you’re questioning his truthfulness, talking to him about a polygraph test.  You talk about it’s like pulling hen’s teeth, etc., right?

A:         Yes.

Q:        Right.  So in the course of about a 40 minute interview you questioned his truthfulness more than a dozen times for sure, right?

A:         Yes.

Q:        I take it it was decided at some of the early briefing meeting perhaps that two officers would go and speak to Mr. Garnier, right?  Obviously two officers did go, but…

A:         Yes, no that would be normal.  They usually pair us up.  That would be normal to do that.

Q:        Ok.  So there were two officers that go and speak to him, right?

A:         Yes.

Q:        You know it was at his new place of work, right?

A:         Yes.

Q:        You knew that it was, he had just started that job?

A:         Yes.

Q:        You call him and tell him you’ll be right over?

A:         Yes.

Q:        He’s sitting in the back of a police car, an unmarked one, but a police car nonetheless when the interrogation is taking place, right?

A:         Right.

Q:        It’s a public parking lot that it’s taking place in?

A:         Uh, yeah, it’s part of that building I take it, so yes.

Q:        It’s the main entrance to the place.

A:         Yes.

Q:        As far as you know?

A:         Yep.

Q:        Where you said you moved away from the main entrance, but you’re still in that front parking lot?

A:         Right.

Q:        The windows are not tinted on this car?

A:         No.

Q:        You’re wearing business clothes, you said?

A:         Yes.

Q:        You’re armed?

A:         Yes.

Q:        And you’re questioning his truthfulness throughout the interview, right?

A:         Yes.

[71]         When Corporal Allison and Detective Constable MacLeod invited Mr. Garnier to speak with them in the police vehicle they did not caution him.  They did not inform him of his Charter rights.  They did not tell him that he was a suspect.  They say he was not a suspect and was merely someone they thought could assist them on a missing persons file.  They say that when they first spoke with Mr. Garnier they had no idea what had happened to Ms. Campbell.

[72]         It is clear that prior to interviewing Mr. Garnier, the police were aware of the following facts and background:

•                    On September 14, 2015, Truro Police Service had reported to Halifax Regional Police that Ms. Campbell had not reported to work at 5:30 AM;

•                    Ms. Campbell had not failed to report previously;

•                    Ms. Campbell’s cell phone was going straight to voicemail;

•                    F.I.S. had attended at Ms. Campbell’s apartment;

•                    There was surveillance video showing her coming home from work on the morning of September 10, 2015;

•                    The investigators who searched Ms. Campbell’s apartment concluded that she had arrived home following her shift on September 10, had gone out later that evening dressed for socializing and had never returned to her apartment, despite the fact that her cats would not be cared for in her absence;

•                    Surveillance video from the Alehouse showed Ms. Campbell interacting in an intimate way with Chris Garnier on September 11, 2015;

•                    Surveillance video showed Mr. Garnier and Ms. Campbell leaving the Alehouse together on September 11, 2015;

•                    Co-workers and friends had not been in contact with Ms. Campbell since she went missing;

•                    Hospitals had been checked for any patients registered in the name of Ms. Campbell, which were negative;

•                    A request had been made on September 14, to have Ms. Campbell’s cell phone “pinged” and it came back as inactive; information from the cell provider came back after midnight on September 15, indicating that her phone went active in the New Glasgow area (Withrow’s testimony);

•                    Ms. Campbell’s firearm was stored at the Truro Police Station and she did not have her gun belt when she arrived home;

•                    Ms. Campbell’s neighbours told the police about suspicious male that lived in the area;

•                    Tips were coming in from the public; someone believed they had seen Ms. Campbell at a restaurant in New Glasgow on September 11, 2015;

•                    Ms. Campbell’s professional standards file had been requested;

•                    A covert surveillance team was available to assist;

•                    There was a “pro/con” list for an individual named Nick located in Ms. Campbell’s apartment; and

•                    The Truro Police service mentioned a previous, possible interaction with an individual who claimed to have had a sexual relationship with Ms. Campbell.

[73]         The officers initially told Mr. Garnier that they were conducting a missing persons investigation.  They told him the missing person was Catherine Campbell.  They did not tell Mr. Garnier that they had video from the Alehouse of him and Ms. Campbell kissing and touching each other, and then leaving together between 3:00 and 3:30 AM.  That information was parsed out to Mr. Garnier as the police confronted him throughout the interview when they believed he was not telling them the truth.  If the police were in fact treating Mr. Garnier as a mere bystander, why would they initially hold back the Alehouse video information?

[74]         As Mr. Garnier was being interviewed, Corporal Allison and Detective Constable MacLeod challenged him on various points on which they did not think he had been forthcoming.  This occurred repeatedly.  For example, midway through the interview the following exchanges occurred:

DET. CST. ALLISON Okay.  So … okay.  So I just want to make sure that we’re on the same page here.  Okay?

A.        Sure.

Q.        Because, you know, if you guys went back and did something, had sex or whatever, hey, you know what?  That’s…

A.     Oh, no, I … I’d tell you if we did.  I mean …

Q.        Okay.  Because, like, there … here’s the thing, is when I asked you about it first you kind of like, No, I never talked to any … you know, never talked to anybody.  Then I say, Okay, well, did you talk to any girls?  Well, sort of now.  Then, you know, you kissed.  Because we know all that because they got video there.

A.        Yeah.

Q.        Okay?  That’s the reason why we’re asking you that, right?  So what I’m wondering is why you’re not telling us that stuff right up front, Chris.  You know, like, if you reverse, put me in your position, you in my position or …

A.        Mmm.

Q.        … Scott’s position and you say … you’re asking somebody and you’re saying, Okay, why aren’t they … and there may be a perfectly good reason why you’re not being up front with us, and that’s what we need to know.

A.        And I’m not trying to not … not be up front.  Like, really, I’m trying to recall what happened that night.

…

Q.        Is there anybody else that … because, I mean, obviously, as you know, there’s video all over the city, right?

A.        Yeah.

Q.        Video all over the city.  There’s video in all the bars, and it’s actually pretty good video.  But is there anybody else that’s … or any of the video going to show us something different from what you’ve told us?

A.        It shouldn’t, no.

Q.        It shouldn’t, or it won’t?

A.        No, it won’t.

Q.        Okay.

D/CST. MACLEOD:   Any idea where we might find this girl at or …

A.     I don’t even think she told me where she was going, to be honest.

CST. ALLISON:         Okay.  I’m going to tell you how this looks, Chris.  Okay?  I’m going to be right up front with you.

A.     Sure

Q.        And I’m not bull shitting you here.  Okay.  You’re the last person that we know of to see her alive.

A.        Okay.

Q.        Okay?  Right now you are the last person.  So I don’t know if you understand that we’re trying to do here.

…

D/CST. MACLEOD:   Right.  You seem like a pretty smart guy, right?  Like, you realize we’re here investigating a missing person, right?

A.     Yeah.

D/CST. MACLEOD:   And we don’t know if she’s been met with foul play or not, right?  And you know we're the police and …

A.     Yeah.

D/CST. MACLEOD:   … you know it’s … we’re investigating that aspect, right?  And I’m not suggesting you are, but you do know that it is a criminal offence to lie to the police as well?

A.     Yeah, absolutely.

D/CST. MACLEOD:   To mislead and stuff, right?  And then we do things … we do a lot of things when we investigate, right?  We check a lot of videos.  Cab companies keep records of their drives, cell phones, what area you’re in, and stuff like that, right?

A.     Yeah.

D/CST. MACLEOD:   We’re not going to find anything that you’re … we’re not going to find that you’re lying to us, right?

A.     No.

D/CST. MACLEOD:   No?  Okay.

CST. ALLISON:         Because here’s the thing, Chris.  Like, it’s … we had the video of you guys leaving the Ale House.  Okay?  You’re walking together.

A.     Yeah.

Q.        Okay?  So that is just a stone’s throw from where you got picked up by the cab.

A.        Yeah.

Q.        Okay?  So what happened in between there and when you got picked up by the cab?

A.        I was going to look for Mitch, I guess.

Q.        Okay.

D/CST. MACLEOD:   Is it possible the video showed you and her walking in a different direction?

A.     It shouldn’t, no.

CST. ALLISON:         So something’s not quite adding up here, Chris.  You know what I’m saying to you here?  Something’s not quite adding up.  As far as … like, you know, when you’re … like, we see the video of you guys leaving together.

A.     Yeah.

...

CST. ALLISON:         Okay.  Do you know where we might be able to find Catherine right now?

A.        I have no idea.

Q.        No idea?  Okay, and why should I believe you?

A.        Because I’m telling the truth.

[75]         At some point in the interview, Detective Constable MacLeod became concerned enough about Mr. Garnier’s responses that he sent a text to the surveillance team providing a description of Mr. Garnier.  The precise time of this text was not in evidence.  However, Detective Constable MacLeod testified:

Q:        Did you have any discussions about whether or not he was required to provide an interview?

A:         No I did not.

Q:        During that interview did you have any concerns about his ability to comprehend any of your questions or Detective Constable Allison’s questions?

A:         No.

Q:        Ok.  Did you make any observations of any threats by Constable Allison to Christopher Garnier?

A:         There was no threats by Constable Allison.

Q:        Ok.  What about promises?

A:         No.

Q:        Alright.  What was your impression throughout the time of that interview of what Mr. Garnier was telling you?

A:         My impressions were that his responses to the questions appeared to be guarded.  I was starting to feel like he was providing, he was being deceptive in the sense that his questions, his answers were guarded.  So I had concerns that he wasn’t being forthcoming with information.

Q:        Ok.  During the time that you were taking that interview and you were having those feelings, did you communicate to Detective Constable Neilsen in anyway during that interview?

A:         No I did not.

Q:        Alright.  Did, did, sorry, did you communicate at any point during that audio video, or sorry, audio interview with anybody in the triangle, namely Bowers or Withrow?

A:         No, I don’t believe so.

Q:        Ok.  During the time that you were in that vehicle did you communicate with any officer aside from Detective Constable Allison in anyway?

A:         Yes I did.

Q:        And who was that?

A:         I believe I contacted through text message Sergeant Ron Legere.

Q:        Ok, and at what point in the interview was that and for what purpose?

A:         Sergeant Ron Legere at the time was in charge of our surveillance unit…

Q:        Yes.

A:         and I was aware that he was available to assist during the day in relation to this file and I believe I communicated with him in relation to surveillance of Mr. Garnier.

Q:        Ok, and how did you become aware that he was available, that Legere was available for you or for the investigation I should say.

A:         I don’t recall, like I said, I don’t recall if it was a briefing and I knew they were there or through conversations with Constable Allison as we’re going to locate Mr. Garnier that they were available.

Q:        Ok.  And so by what means did you communicate with Legere as you were taking that interview?

A:         Through my mobile phone.

Q:        Ok, and so that was a text message?

A:         Yes, I believe so.

Q:        Alright, and did you make a note of what time that was?

A:         No I did not.

Q:        Alright, and what did you, what information did you provide to Sergeant, it’s Sergeant Legere?

A:         Yes.

Q:        What information did you provide?

A:         I believe I provided a description of Mr. Garnier, like his clothing description.

Q:        Ok.  Anything else?

A:         Not that I recall.

Q:        And why was it that you engaged Legere at that time?

A:         To assist with surveillance of Mr. Garnier, especially after a few minutes of interviewing Mr. Garnier I felt that he was being deceptive and I knew that surveillance was available should it be required.

Q:        Ok.  Did you get permission at all from Detective Neilsen to use surveillance?

A:         Well, I believe, no not per se, not to send a message Sergeant Legere.

Q:        Ok.  Can you describe what you mean when you describe, you said that he was not forthcoming, what do you mean by that?  Can you describe that?  What was your impression?

A:         Sure.  Like I found his answers were guarded.  We had asked him quite a few questions in relation to Ms. Campbell, like I think he used the word might a few times, like he might have talked to a female.  I think Constable Allison showed him a picture of Catherine Campbell and he admitted to seeing her and that he kind of recognized her.  So there’s some questions along there I felt he wasn’t sincere, he was guarded, he wasn’t committing to an answer.

Q:        Ok.  Throughout the time that you were interviewing him, did you learn anything more about Catherine Campbell, besides from what he was telling you, like from any outside source?

A:         No I did not.

Q:        Alright.  Did you make any observations of surveillance attending that area?

A:         No I did not.

Q:        What time did the statement finish?

A:         Would have been approximately 10:50 AM. [Emphasis added]

Analysis

[76]         The lead investigator, Detective Constable Neilsen, labeled Mr. Garnier a suspect.  A surveillance team was tasked to watch Mr. Garnier (labeled a target) and no one else at the time of his first interview.  The officers assigned to take a statement from Mr. Garnier tried to catch him by surprise.  They were not forthright with him when they spoke with him.  They held back evidence connecting him to Ms. Campbell while interviewing him.  They confronted him at various times during the interview.  They covertly sent a message to the surveillance team describing Mr. Garnier and his clothing during the interview. 

[77]         If Mr. Garnier was not a suspect prior to the statement commencing, by the time Detective Constable MacLeod sent his text to the surveillance team he was a suspect. Despite what the officers described during the voir dire, at the time his first interview was underway, the police were treating Mr. Garnier as a suspect. At a minimum, his jeopardy had changed at the point where Detective Constable MacLeod texted to the surveillance team such that Mr. Garnier should have been cautioned. 

[78]         Detective Constable MacLeod did not pinpoint the precise time in the interview when his text was sent.  He did say that he did not make note of the time he sent the text message.  The only indication of when the text may have been sent was when he stated that, “[t]o assist with surveillance of Mr. Garnier, especially after a few minutes of interviewing Mr. Garnier, I felt that he was being deceptive and I knew that surveillance was available should it be required.”

[79]         Sergeant Legere from the surveillance team was not called on the voir dire.  The text messages sent from Detective Constable MacLeod to Sergeant Legere were not produced or entered as evidence.  Whether or not they had time stamps that would assist in pinpointing when those messages were sent is not known to the court.

[80]         I do not know when the text message or messages were sent, other than that, according to Detective Constable MacLeod, it was within a few minutes of the start of the interview.

[81]         As a suspect, Mr. Garnier should have been cautioned prior to the police interviewing him.  Not only would a reasonably competent investigator have considered him a suspect, but the lead investigator actually labeled him a suspect in her notebook.  Because Mr. Garnier was not cautioned, his statement cannot be said to be voluntary.  It would undermine the integrity and repute of the trial process to admit a statement given in these circumstances.

[82]         The Crown must prove the voluntariness of Mr. Garnier’s statement beyond a reasonable doubt.  Included within the voluntariness analysis is a consideration of Mr. Garnier’s s. 7 Charter right to silence.

[83]         If the police interview a suspect, but do not caution or warn that person, and do not alert that person to their s. 7 Charter right to silence, a statement elicited by the police cannot be considered to be voluntary.

Conclusion

[84]         Considering all of the circumstances, Mr. Garnier was a suspect when the police interviewed him during the morning of September 15, 2015, if not at the outset, certainly within a few minutes of the interview starting.  Mr. Garnier was not cautioned by the police.  Therefore, considering this very specific constellation of events, his statement cannot be considered voluntary.  The Crown has not proven the voluntariness of the statement beyond a reasonable doubt.  The statement is not admissible.

 

 

 

Arnold, J.