SUPREME COURT Citation: R. v. Butcher, 2018 Between: Her Majesty V. Nicholas Jordan DECISION: Hearsay, Voluntariness and of the Canadian €‘harter Judge: The Honourable Justice Heard: February20, 21, 22, 23, 26, 27; March Halifax, Nova Scotia Further Written Submissions: March20 and 21, 2018 Counsel: Carla Ball and Tanya Peter Planetta and Jonathan
OF NOVA SCOTIA NSSC 76 Date: 20180404 Docket: HFX No. 455873 Registry: Halifax the Queen Butcher VOIR DIRE 3 Sections 10(b) and 24(2) ofRights and Freedoms Joshua M. Arnold 1,5,6,2018, in Carter, for the Crown Hughes, for the Defence
By the Court: Overview [1] On March 26, 2016, 911 received Butcher told the 911 call-taker that he had himself, had cut off his own hand, was dying [2] The 911 call-taker put the call through and police were dispatched to the address [3] Once on scene, the first responders appeared to have a fresh amputation of his his neck and left arm. They also found Kristin surrounded by blood and with a pillow over saw and a freshly severed right hand. [4] Sergeant MacGillivray was tasked time the police encountered him, while the scene, during the ambulance ride to the hospital and hospital. Mr. Butcher spoke to, and around, Sergeant MacGillivray occasions during their time together. [5] Among other utterances, he told Sergeant MacGillivray that he wanted the police to get in touch with be found in the bedroom, he confirmed his Ms. Johnston’s name and date of birth, and telephone number. Sergeant MacGillivray Butcher’s state of mind and said that he dealings with him. [6] Sergeant MacGillivray contracted a On September 5, 2017, several weeks before recorded statement, detailing his involvement MacGillivray made notes and filed reports investigation. Sergeant MacGillivray also Detective Constable Alex MacAdam, to discuss kept notes of that meeting. The video
Page 2 a call from Nicholas Butcher. Mr. just killed his girlfriend, had tried to kill and wanted help. to ambulance dispatch. Paramedics where the telephone call originated. eventually came upon Mr. Butcher who right hand, as well as other injuries to Johnston in a bedroom deceased, her face. In the bedroom was a mitre with staying with Mr. Butcher from the paramedics were attending to him at the outside the trauma room at the on several that he was sony, his mother, that Ms. Johnston would name and date of birth, he confirmed his mother’s name, address and also made observations of Mr. was lucid and responsive throughout his terminal illness and died prior to trial. his death, he provided a KGB video with Mr. Butcher. Sergeant relating to his involvement in the met with the Crown, in the presence of his evidence. Sergeant MacAdam statement, along with Sergeant
MacGillivray’s notes and the notes and reports were all placed into evidence on this voir [7] The Crown has made an application 2017 5CC 35, to have Sergeant MacGillivray’s for the truth of its contents. The Crown says Bradshrnv to have that video statement admitted, that is, proof probabilities. [8] Mr. Butcher says that the test in Bradshaw statement is not admissible. [9] Mr. Butcher also says that the Crown doubt that the statements he made to Sergeant MacGillivray says that he has proven on a balance of Charter of Rights and Freedoms right to MacGillivray. Therefore, he argues, even statements made by him to Sergeant MacGillivray because they are not voluntary or because their exclusion in accordance with s. 24(2) [10] Mr. Butcher says that any statements the presence of Sergeant MacGillivray are and a s. 10(b) Charter analysis. [11] The Crown says that if the video statement is by Mr. Butcher to Sergeant MacGillivray them voluntary beyond a reasonable doubt. The initial s. 10(b) violation in relation to the comments MacGillivray before he was read his rights the statements should not be excluded in In the alternative, the Crown says that if accordance with s. 24(2), the video statement can few statements. [12] The Crown also says that any statements Butcher while in the presence of Sergeant MacGillivray subject to a voluntariness analysis or Charter Crown says that any such statements were compliant or should be admitted at the conclusion
Page 3 of Detective Constable MacAdam dire. in accordance with R. v. Bradshaw, video statement admitted at trial they have met the standard outlined in on the balance of has not been met and the video has not proven beyond a reasonable were voluntary. He probabilities that his s. 10(b) Canadian counsel was infringed by Sergeant if the video statement is admissible, any must be excluded, either the s. 10(b) Charter violation calls for of the Charter. made by himself to the paramedics in also subject to a voluntariness analysis admitted, the statements made are admissible as the Crown has proven Crown concedes that there was an Mr. Butcher made to Sergeant from a card in the ambulance, but says accordance with s. 24(2) of the Charter. the statements should be excluded in be easily edited to remove those made to the paramedics by Mr. are admissible and are not scrutiny. In the alternative, the given voluntarily and are either Charter of a s. 24(2) Charter analysis.
[13] The Crown agrees that certain of Sergeant MacGillivray’s video statement are either prejudicial, opinion says any such statements can be easily edited Facts [14] The following witnesses testified Patrick Tucker (FIS), Sean Collins (EHS), Jessica Brown (EHS), Gilles Boudreau (EHS), Constable Karen Misner, Constable Ray Turner, Constable Alex MacAdam, Beth Strickland (Anesthesiologist) and Doctor Jonathan Trites [15] Both police and EHS paramedics Oceanview Drive in response to a 911 call. They he had killed his girlfriend, had cut off his EHS paramedics were directed to stage just police advised them it was safe to enter onto Emergency Response Team (“ERT”) members heavily armed, made their way onto the property Butcher who exited the home onto a deck acquiesced with the police directions. When he was covered in blood and seriously injured. His had lacerations to his neck and left wrist. [16] Ms. Johnston was found deceased with lacerations to her neck and large amounts [17] Mr. Butcher was given directions MacGillivray to which he complied. The Butcher, told him to lie down on the deck [18] Sergeant Macflillivray says that from gave Mr. Butcher a police caution and s. 10(b) Butcher says the s. 10(b) Charter rights were the 1-800 numbers for legal aid, he was immediate legal advice, and he had no counsel.
Page 4 comments on the evidence, or are speculative, and out of the video statement. on this voir dire: Detective Constable DiPasquale (EHS), Sarah Grace Gilles Boudreau, Constable Sergeant Craig Robinson, Detective (EHS), Dr. Genevieve McKinnon (Otolarynologist). were directed to an emergency at 17 were told that the 911 caller said own hand, was dying and wanted help. outside 17 Oceanview Drive until the the property. Halifax Regional Police and other uniformed officers, and eventually encountered Mr. area and peacefully and compliantly the police encountered Mr. Butcher right hand was missing and he in a bed, her face covered by a pillow, of blood on and around her. by ERT team members and Sergeant police, with assault rifles pointed at Mr. and he did so. memory, not from reading a card, he Charter rights at the scene. Mr. incomplete, in that he was not given not told he had the right to free and opportunity to implement his right to
[19) EHS members were then invited onto Butcher at 17 Oceanview Drive. He was was retrieved from the bedroom and placed treated in the ambulance on the way to the [20] During the ambulance trip Sergeant Charter rights from the police card, but Mr. Butcher implement those rights. Some conversation Sergeant MacGillivray before the ambulance and Mr. Butcher before the ambulance ride, then before and after he was read his rights from [21] Once at the hospital, Mr. Butcher anesthesiologist, in the trauma room where Butcher made comments to Dr. McKinnon Sergeant MacGillivray was not present for [22] Mr. Butcher was then taken into surgery. (ears, nose and throat specialist), repaired neck and another doctor, not called on this Issues • Is Sergeant MacGillivray’s KGB evidence?
• If the video statement is admissible, were the comments made by Mr. Butcher to Sergeant MacGillivray voluntary? • Was there a violation of Mr. Butcher’s right to counsel as guaranteed by s. 10(b) of the Charter in relation to comments made to Sergeant MacGillivray? • If there was a s. 10(b) Charter violation, should the evidence be excluded in accordance with s. 24(2) of the Charter? • Were the EHS paramedics persons in authority, and if so, were comments made by Mr. Butcher voluntary?
Page 5 the property. EHS initially treated Mr. then placed in an ambulance. His hand with him in the ambulance. He was hospital. MacGillivray read Mr. Butcher his did not have an opportunity to ensued between Mr. Butcher and ride, and between EHS paramedics during the ambulance ride both the police card. was seen by Dr. McKinnon, an she prepped him for surgery. Mr. that he concedes are admissible as those conversations. Dr. Trites, an otolaryngologist the injuries to Mr. Butcher’s throat and voir dire, reattached his hand.. video statement admissible as hearsay
• If there was a s. 10(b) Charter violation, were Butcher to EHS paramedics in the presence Charter protection? • If the comments made by Mr. Butcher Sergeant MacGillivray were subject to s. 10(b) Charter violation of Mr. Butcher’s excluded in accordance with s. 24(2) of the • Are the comments made to Dr. Genevieve • Does the video statement contain comments their probative value is outweighed by their Admissibility of the Video Statement [23] The statements made by Mr. Butcher admitted into evidence if the video statement then the issues of voluntariness and s. 10(b) made to, or around, Sergeant MacGillivray [24] On March 6, 2018, following the forwarded their revised overall position via Voir Dire 3 relates to the Bradshaw application MacGillivray’s KGB statement of September the defence Charter application pursuant to the court to determine voluntariness should 1. Bradshaw re MacGillivray: Having position, we agree it is appropriate (VD3-7) admitted of the truth of that the documents exhibited as Vd3-3, 5, 6, 8, 9 to assist the court in determining threshold reliability. 2. The Court raised concerns about between the language related to the and the KGB statement. The inconsistencies among these documents, rather, some complete. As a result, Crowns statement specifically, the court should threshold reliability.
Page 6 comments made by Mr. of Sergeant MacGillivray subject to to EHS paramedics in the presence of Charter protection, and if there was a right to counsel, should the evidence be Charter? McKinnon admissible? that must be excluded because prejudicial effect? to Sergeant MacGillivray cannot be is inadmissible. If that is the case, of the Charter relating to comments are irrelevant. completion of the voir dire, the Crown email: in relation to Sergeant Matthew 5,2017. Voir Dire 3 also deals with section lOb. Voir Dire 3 also requires the Bradshaw application be met. had time to reconsider the Crown’s to seek to have only the KGB statement its contents. The Crown’s position is and 10 ought to be used whether the KGB statement meets what it termed as “inconsistencies” charter specifically in Vd3-8, Vd3-9, Crown’s position is that there are no language is more position is that related to the KGB have no concerns about the
3. If the court finds the KGB statement to reliability standard, the Crown component breach. However, the ought to be saved by 24(2). 4. If the Court determines that the Crown’s position is that the utterances statement. 5. The Crown’s further position, which writing with cases, is that the EHS and the utterances made to them are Charter by virtue of the police presence. [25] The video statement must meet the placed into evidence for the jury’s consideration. for the majority, explained the difference between when dealing with the question of hearsay [26] To determine whether trial judge assesses the statement’s threshold established when the hearsay “is sufficiently arising from the difficulty of testing it” arise notably due to the absence of contemporaneous hearsay declarant before the trier of fact (Khelawon, at paras. 35 assessing threshold reliability, the trial judge dangers presented by the statement and consider (Khelawon, at paras. 4 and 49; R. i’. Hawkins, 1996 S.C.R. 1043, at para. 75). The dangers relate declarant’s perception, memory, narration, or with precision to permit a realistic evaluation overcome. [27] The hearsay dangers reliability can be established by showing that (I) testing truth and accuracy (procedural reliability) circumstantial or evidentiary guarantees trustworthy (substantive reliability) (Khelawon, at paras. 61-63; Youvarajah, at para. 30). [26] Justice Karakatsanis went on to explain reliability can be met by the Crown when seeking [28] Procedural reliability substitutes for testing the evidence”, given evidence in court, under oath, and under
Page 7 be admissible on a threshold concedes there is a 1 Ob informational Crown maintains its position that it evidence is not saved under 24(2), the alone can be excised from the we will elaborate on tomorrow in personnel are not people in authority not subject to the confessions rules or test for threshold reliability in order to be In B,-adshaw, Karakatsanis J., threshold and ultimate reliability admissibility: a hearsay statement is admissible, the reliability. Threshold reliability is reliable to overcome the dangers (Khelawon. at para. 49). These dangers cross-examination of the and 48). In must identi’ the specific hearsay any means of overcoming them CanLil 154 (SCC), [1996] 3 to the difficulties of assessing the sincerity, and should be defined of whether they have been can be overcome and threshold there are adequate substitutes for or (2) there are sufficient that the statement is inherently how the standard of procedural to introduce hearsay evidence: is established when “there are adequate that the declarant has not “state[d] the the scrutiny of contemporaneous cross-
examination” (Khelawon. at para. 63). satisfactory basis for the trier of fact to rationally of the hearsay statement (Khelawon, 75; Youvarajah, at para. 36). Substitutes for recording of the statement, the presence consequences of lying (B. (K.G.), at pp. 795-96). However, some examination of the declarant, such as preliminary cross-examination of a recanting witness CanLil 74 (SCC), [1995] 3 S.C.R. 764), is SCC 28 (CanLil), [2007] 2 S.C.R. 517, at paras. 92 disagree with the Court of Appeal’s categorical assertion to assessing procedural reliability are only taken” (para. 30). Some safeguards imposed a recanting witness before the trier of fact, may testing the evidence. [27] In this case, Sergeant MacGillivray and cautions, his statement was video administered and he was warned about the provision of his video statement. However, there Sergeant MacGillivray was ever cross-examined deceased and, as a result, there was no cross-examination nor will there be any at trial. Justice safeguards relevant to assessing procedural reliability when the statement is taken. She explained contemporaneous cross-examination (at preliminary issues for a trier of fact who must determine statement. The mere fact that a proper KGB MacGillivray before he passed away does allow for the admissibility of the video. Therefore, the video statement must be examined. [28j The ability to have a hearsay statement admitted reliability was also addressed by Karakatsanis [30] A hearsay if substantive reliability is established, that is, if trustworthy (Yozn’arajah, at para. 30; R. v. Smith, 1992 2 S.C.R. 915, at p. 929). To determine trustworthy, the trial judge can consider the and evidence (if any) that corroborates
Page 8 These substitutes must provide a evaluate the truth and accuracy at para. 76; Hawkins, at pam. traditional safeguards include a video of an oath, and a warning about the form of cross-inquiry testimony (Hawkins) or at trial (B. (KG.); R. v. U. (Fl), 1995 usually required (R. v. Couture, 2007 and 95). In this respect, I that safeguards relevant “those in place when the statement is at trial, such as cross-examination of provide a satisfactory basis for was given the standard KGB warnings and audio recorded, an oath was consequences of lying during the is no evidence before me that on this evidence. He is now of him on the voir dire’s, Karakatsanis clearly explained that the are not only those in place that the lack of ability for inquiry or at trial) creates the truth and accuracy of a hearsay statement was obtained from Sergeant not carry the day and automatically substantive reliability of the due to its substantive J.: statement is also admissible the statement is inherently CanLil 79 (SCC). [1992] whether the statement is inherently circumstances in which it was made or conflicts with the statement
(Khelauvn, at paras. 4, 62 and 94-100; R. 37 (CanLil), [2008] 2 S.C.R. 298, at para. 55). [31] While the standard guarantee “as the word is used in the trustworthiness’, does not require that certainty” (Smith, at p. 930). Rather, the statement is “so reliable that contemporaneous would add little if anything to the process” certainty required has been articulated in jurisprudence. Substantive reliability is established under circumstances which substantially was untruthflul or mistaken” (Smith, at p. 933); “under even a sceptical caution would look upon 62, citing Wigmore, at p. 154); when “unlikely to change under cross-examination” p. 937); when “there is no real concern about whether because of the circumstances in which it came when the only likely explanation is that the 40).
[29] The ability to rely on a combination for the admission of a hearsay statement, such was discussed by Karakatsanis J. She warned trial judge considering relying on a combined [32] These two approaches to establishing in tandem. Procedural reliability and substantive exclusive (Khelaivon, at para. 65) and “factors the other” (Couture, at para. 80). That said, the always remains high — the statement must be the specific hearsay dangers it presents in U (F.Jj, where the Court drew on elements reliability to justify the admission of a hearsay of the recanting witness and corroborative threshold reliability, though neither on also Blackman, at paras. 3 7-52). I know jurisprudence of substantive and procedural reliability to justify the admission of a hearsay statement. Great care that this combined approach does not lead insufficient procedural safeguards and guarantees overcome the hearsay dangers.
Page 9 v Blaclanan, 2008 SCC for substantive reliability is high, phrase ‘circumstantial guarantee of reliability be established with absolute trial judge must be satisfied that the cross-examination of the declarant (Khelaum1, at para. 49). The level of different ways throughout this Court’s when the statement “is made negate the possibility that the declarant such circumstances that it as trustworthy” (Khelawon, at para. the statement is so reliable that it is Khe1awon, at para. 107; Smith, at the statement is true or not about” (Khelawon, at para. 62); statement is true (U. (F.J.), at para.
of procedural and substantive reliability as might be necessary in this case, that great care must be taken by a approach: threshold reliability may work reliability are not mutually relevant to one can complement threshold reliability standard sufficiently reliable to overcome (Khelaiton, at para. 49). For example, of substantive and procedural statement, both cross-examination evidence were required to meet its own would have sufficed (see of no other example from this Court’s complementing each other must be taken to ensure to the admission of statements despite of inherent trustworthiness to
[30] In assessing threshold reliability Karakatsanis [40] In contrast, in assessing preoccupation is whether in-court, contemporaneous hearsay declarant would add anything to see also H. Stewart, “Khelawon: The Principled (2008), 12 Can. Crim. L.R. 95, at p. 106). At the must decide on the availability of competing and whether the trier of fact will be in means of adequate substitutes for (procedural reliability). For this reason, where with whether there is a satisfactory basis substantive reliability is concerned with corroborative evidence, provide a rational for the statement, other than the declarant’s [41] In short, in the hearsay context, the and ultimate reliability is qualitative, and judge’s inquiry serves a distinct purpose. In trial judge does not usurp the trier of fact’s whether the hearsay statement should ultimately value.
[31] The admissibility voir dire is not a must not determine ultimate reliability and fact, in this case the jury. In discussing should be considered at the admissibility stage, Karakatsanis [44] In my view, the rationale jurisprudence of this Court make clear that not all evidence declarant’s credibility, the accused’s guilt, or assistance in assessing threshold reliability. A corroborative evidence to establish threshold considered as a whole and in the circumstances explanation for the hearsay statement is the accuracy of, the material aspects of the statement. If the declarant’s sincerity, truthfulness will be memon’. narration, or perception, accuracy [45] First, corroborative evidence of the material aspects of the hearsay 84; Black-man, at para. 57). Hearsay is tendered corroborative evidence must go to the truthfulness the hearsay statement that the moving party reliability is about admissibility of evidence, the
Page 10 J. explained: threshold reliability, the trial judge’s cross-examination of the the trial process (Khelawon, at para. 49; Approach to Hearsay Revisited” threshold stage, the trial judge explanations (substantive reliability) a position to choose between them by contemporaneous cross-examination procedural reliability is concerned to rationally evaluate the statement, whether the circumstances, and any basis to reject alternative explanations truthfulness or accuracy. difference between threshold not a matter of degree, because the trial assessing substantive reliability, the role. Only the trier of fact assesses be relied on and its probative
full trial on the merits. The trial judge thereby usurp the function of the trier of the type of corroborative evidence that J. stated: for the rule against hearsay and the that corroborates the one party’s theory of the case, is of trial judge can only rely on reliability if it shows, when of the case, that the only likely declarant’s truthfulness about, or the the hearsay danger relates to the issue. If the hearsay danger is will be the issue. must go to the truthfulness or accuracy statement (see Couture, at paras. 83-for the truth of its contents and or accuracy of the content of seeks to rely on. Because threshold focus must be on the aspect of
the statement that is tendered for its truth. The at the threshold reliability stage is to mitigate generally, but on the point that the hearsay [32] Since Bradshrnv, a trial judge must consider hearsay statement: [48] In assessing substantive therefore identify alternative, even speculative, explanations statement (Smith, at pp. 936-37). Corroborative establishing substantive reliability if it shows are unavailable, if it “eliminate[s] the hypotheses “Hearsay: The Denial of Confirmation” (emphasis deleted)). In contrast, corroborative consistent” with the truthfulness and accuracy hypothesis is of no assistance (R. v. R. (fl.), 1996 S.C.R. 291, at paras. 34-35). Adding evidence statement, but that is also consistent with the statement’s inherent trustworthiness. [49] While the declarant’s likely than any of the alternative explanations, this fact that the threshold reliability analysis means that, based on the circumstances and judge must be able to rule out any plausible of probabilities. [50] To be relied on hypotheses for the statement, corroborative Untrustworthy corroborative evidence is reliability inquiry (see Khelawon, at para. particularly acute when the corroborative physical evidence (see Lacelle, at p. 390). [33] Justice Karakatsanis summarized determining the substantive reliability of a [56] Clarifying when corroborative substantive reliability is not a departure admissibility of hearsay. There is no bright-line corroborative evidence that a trial judge can reliability is established. In all cases, the hearsay dangers raised by the statement, the and the circumstances of the case, to evidence (if any) can be relied on to establish
Page 11 function of corroborative evidence the need for cross-examination, not is tendered to prove. [Emphasis added) alternative explanations for the reliability, the trial judge must for the hearsay evidence is of assistance in that these alternative explanations that cause suspicion” (S. Akhtar, (2005), 26 C.R. (6th) 46, at p. 56 evidence that is “equally of the statement as well as another CanLil 207 (SCC), [1996] 2 that is supportive of the truth of the alternative explanations, does not add to truthfulness or accuracy must be more is not sufficient. Rather, the takes place on a balance of probabilities any evidence led on voir dire, the trial alternative explanations on a balance for the purpose of rejecting alternative evidence must itself be trustworthy. therefore not relevant to the substantive 108). Trustworthiness concerns are evidence is a statement, rather than the considerations for a trial judge in hearsay statement: evidence can be relied on to establish from the functional approach to the rule restricting the type of rely on to determine that substantive trial judge must consider the specific corroborative evidence as a whole, determine whether the corroborative substantive reliability.
[57] In sum, to determine whether in the substantive reliability’ inquiry, a trial judge 1. identify the material aspects of the their truth; 2. identify the specific hearsay statement in the particular circumstances 3. based on the circumstances and speculative, explanations for the statement; and 4. determine whether, given the circumstances evidence led at the voir dire rules out these only remaining likely explanation for the about, or the accuracy of, the material aspects [34] In this case, Sergeant MacGillivray’s many witnesses called on the voir dire. described their observations of Sergeant MacGillivray’s Butcher in a similar fashion, albeit with varying [35] The ERT team members, including Craig Robinson, along with uniformed MacGillivray, Constable Gilles Boudreau, and armed, entered the grounds in and around emerged from the house and was ordered and Sergeant MacGillivray stayed with him residence.
[36] The scene having been secured, EHS property. These FF15 members either saw the house, or assisted him on scene, or on EHS paramedics who encountered Mr. Butcher DiPasquale, Sarah Grace Brown, Gilles Boudreau, and [37] Although some of the paramedics’ time, or they were focused more on interactions with the police, they generally injuries, including a freshly amputated hand. being alert, cooperative, appropriately responsive, able cognizant of what was going on around him.
Page 12 corroborative evidence is of assistance should hearsay statement that are tendered for dangers raised by those aspects of the of the case; these dangers, consider alternative, even of the case, the corroborative alternative explanations such that the statement is the declarant’s truthffilness of the statement. video statement was corroborated by All of the first-responders generally interaction with Mr. opportunities to observe. Constable Ray Turner and Sergeant HRP members, including Sergeant Constable Karen Misner, all heavily 17 Oceanview Drive. Mr. Butcher to lie down on the deck. He complied while the other officers searched the
personnel then were allowed onto the Mr. Butcher as they moved by him into the ambulance ride to the hospital. The include Sean Collins, Jessica Beth Strickland. memories of the events have faded with the treatment of his injuries than his describe Mr. Butcher as having severe They also describe Mr. Butcher as to follow instructions and
[38] Mr. Butcher was described by the getting him to the ambulance as being able although they provided some assistance as [39] All of the first-responders who observed MacGillivray and Mr. Butcher describe compassionate, professional, and understanding. [40] The aspects of Sergeant MacGillivray’s their truth for consideration by the jury include demeanor; Mr. Butcher’s level of understanding; Mr. Butcher’s Sergeant MacGillivray, such as repeatedly there was a tenant in the basement; correcting the ERT members that they would find Ms. Johnston was actually in the bedroom; providing his Johnston’s name and date of birth; asking and providing contact information for his mother. [41] On the s. 10(b) Charter voir dire relating MacGillivray, the material aspect of the what is significant for the jury’s consideration. concerns whether adequate rights, and opportunity provided to Mr. Butcher. While the police Sergeant MacGillivray provided to Mr. Butcher tendered for the truth of their contents, the show the actual words uttered by Sergeant MacGillivray the police caution and Charter warning were any infringements of Mr. Butcher’s rights. [42] The Crown concedes that the Charter MacGillivray in the video statement is deficient in the ability to access free and immediate legal made by Mr. Butcher are still admissible, as s. 24(2) of the Charter. The Crown’s alternative comments are excluded under s. 24(2), they can still be admitted. [43] The Crown says that Mr. Butcher rights during the ambulance ride. They were asked by Sergeant MacGillivray do
Page 13 ERS paramedics who were involved in to get on the stretcher on his own, a precaution. the interaction between Sergeant Sergeant MacGillivray as being calm, statement that are being tendered for his description of Mr. Butcher’s comments to saying “I’m sorry”; telling him that Sergeant MacGillivray when he told in the bathroom, saying she name and date of birth; providing Ms. first-responders to contact his mother; the statements made to Sergeant video statement is quite different than That s. 10(b) Charter voir dire to exercise those rights, were caution and the Charter warning during the video statement are not video statement is being tendered to when giving Mr. Butcher in an effort to determine whether there warning as described by Sergeant that Mr. Butcher was not told of advice, but argues that the comments any deficiencies would be saved by position is that if Mr. Butcher’s can be excised and the KGB statement was eventually read his correct s. 10(b) also say that the type of questions that not warrant Charter protection. The
Crown says that, as a result, the inability counsel is irrelevant. [44] On the question of whether Sergeant MacGillivray proper s. 10(b) charter right to counsel, the relevant to this aspect of the analysis: notebook notes (Exhibit No. VD3-5); Sergeant MacGillivray’s Report (Exhibit No. VD3-8); notes of MacAdam, Sergeant MacGillivray and transcript of the KGB statement (Exhibit No. VD3-4); and statement (Exhibit No. VD3-7). [45] In discussing the s. 10(b) issue, Sergeant MacGillivray at different times about Mr. Butcher. The Sergeant MacGillivray’s handwritten 0817 Charter yes Yes to lawyer Yes to legal aid Police caution 0832 on scene @ QEII room 12 Kept saying I’m sorry during ambulance No questions asked. Notes delayed from scene. I told the male he was under arrest for charter rights from memory. I did me he wanted a lawyer. He kept saying he was sorry. Sergeant MacGillivray’s typed Supplemental Report (VD3-8): I told him that he was under arrest for killing to help. I told Nick his charter of rights and police not telling him the telephone numbers to the four numbers. The police caution was
Page 14 of Mr. Butcher to implement his right to gave Mr. Butcher his Crown tendered the following exhibits Sergeant MacGiflivray’s handwritten typed Supplemental a meeting with Detective Constable the Crown (Exhibit No. VD3-9); the the video recorded KGB says different things various versions are as follows: notebook notes (VD3-5): ride killing his girlfriend and told his not ask him any questions after he told his girlfriend and that we were there caution from memory. [sic] and recall contact legal aid as I couldn’t remember complete.
At 8:17 a.m [sic] I read him his charter notebook. He said he understood his charter he understood his right to legal aid and yes wasn’t going to ask him any questions. Detective Constable MacAdam’s Sergeant MacGillivray and the Crown (VD3-9) You have the right to instruct and retain a Did not remember tel# for legal aid. Would give them to him later. You have the right to retain and instruct a From memory [note in margin referring to “You have the right to free and immediate don’t remember what they are but I will give Then — You need not say anything, you have favor.
Nothing to fear from any threat. Whether or not you say anything. Anything you do say may be used as evidence.” “Yep, uh uh, ok.” — Rights from memory answers. Read charter/caution from notebook. Yes, yes, yes.
Sergeant MacGillivray’s KGB statement (VD3-4) SGT. MACGILLIVRAY: ... And that’s read him his Charter of Rights and caution say anything, you have nothing to hope fear from any threat whether or not you say used as evidence, do you understand that?” your girlfriend. You have the right to retain Urn, you have the right to apply for legal assistance aid program, and there’s a number-- a number Now, this is not verbatim from what I said from...
Page 15 rights and caution, this time from my rights, yes he wanted a lawyer, yes to the police caution. I then told him I handwritten notes of a meeting with lawyer — from memory. lawyer without delay. following quote] legal advice from duty counsel — I them to you as soon as I can. nothing to hope from any promise or
what I told him, is that I’m — I’m — I from my memory, um. “You need not from any promise or favour, nothing to anything, anything you do say may be Um, “You’re under arrest for killing and instruct a lawyer without delay. through the provincial legal -- four numbers that you can call.” that day, but it’s a gist of what I know
D/CST. MACADAM: You -- you SGT. MACGILLIVRAY: Yeah. So this my CX in my hand at this point. I wasn’t ready had nowhere to relinquish it to, actually, because nobody around. Urn, but I wanted to make we were -- what was alleged -- what he alleged me to want to preserve his rights as best as my notebook with a -- with a loaded CX that my -- my knowledge, my memory caution would be sufficient for that moment what is [sicj rights were. Um, and so memory he said he understood. And I believed Um, I said it, like I said, in sornewhat of if I read if from rny card, which I did later to make sure he had something to grasp, something there were numbers, that he could apply for me. Urn, those are the things I wanted him D/CST. MACADAM: Okay. SOT. MACGILLIVRAY: And I made to ask him any questions. Um, I’ve spent some training officer but also as a trainee, and -- D/CST. MACADAM: Urn-hmm. SOT. MACGILLIVRAY: Um, and one -- in an investigative capacity is this establishment of some kind of quid pro quo cop when they’re trading information. And fully aware that I was not in the market for wasn’t going to ask him questions. I just that was -- that was the main priority. So him while we waited for paramedics. D/CST. MACADAM: Okay. Do you-- - you said you used plain language. SOT. MACGILLIVRAY: Yes. D./CST. MACADAM: Do you remember him?
SOT. MACGILLIVRAY: No. It’s so plain, it’s... D/CST. MACADAM: No? SOT. MACGILLWRAY: And -- and it’s as matter of fact as the conversation we’re having now, and that’s -- it!s not replicatable... D/CST. MACADAM: Um-hmm.
Page 16 said to him just verbally? is what I was saying. I would have to relinquish the weapon, urn, and there was no -- there was sure that he had -- I mean, this -- what he had done is serious enough for possible. And while fhmbling through is not in his best interest or mine, I felt of the -- of the Charter of Rights and so that he had some understanding of when I told him those things from my him when he said he understood. a plainer English than I normally would on. Um, but for this purpose I wanted that he could know, ah, that legal aid, that he didn’t have to talk to to know. it abundantly clear that I wasn’t going tirne not only in training as a and I’ve taken a lot of courses. of the things that keeps coming up in a -- this -- this inducement, or this relationship between a bad guy and a I wanted to make sure that he was trading information, I didn’t want -- I wanted him to focus on getting healthy, that was what my dialogue was with you-- do you know what kind of-what kind of-- what you said to
SGT. MACGILLIVRAY: .. unfortunately, because and you know, I may use a different word elements are the same, the meaning is the designed to ensure understanding and that’s to ensure understanding. D/CST. MACADAM: Yeah. SGT. MACGILLIVRAY: But then -- ambulance, I think, if I remember my notes, like, quarter notebook verbatim. D/CST. MACADAM: Um-hmm. SGT. MACGILLIVRAY: And that’s to make sure that he -- so I had given him hundred percent complete, but the second from the written card. D/CST. MACADAM: Okay. SGT. MACGILLIVRAY: And so that’s notes, and that’s what I did. One version D/CST. MACADAM: Yeah. So your you still have him prone on the porch. SGT. MACGILLIVRAY: He’s laying D/CST. MACADAM: Your intention rights and... SGT. MACGILLIVRAY: Absolutely. D/CST. MACADAM: . . .what those SGT. MACGILLIVRAY: Absolutely, yeah. D/CST. MACADAM: .. .as best you SGT. MACGILLIVRAY: As best I can, given this point I -- I’ve just arrived at the call where amputated arm, it’s actively bleeding, he’s by myself with a C8 rifle and ERT’s in there this is spinning through my mind it’s -- that he needs? D/CST. MACADAM: Okay. SGT. MACGILLIVRAY: Medical attention, caution are...
Page 17 it is plain language. Urn, today than I use tomorrow. The same. The language is — again, it’s -- its not meant to deceive, it’s meant and that’s when I -- later on, in the after 8, I read from my -- and that’s the second layer, I wanted one version, which wasn’t going to be a version would -- would def-- would be why there is the -- like I said in my is... intention at the time, though -- and on the ground. We... at the time is to advise him of his rights are... can. the -- given the -- I mean, at I’ve got a guy who’s got an got a laceration to his neck. Um, I’m looking for a dead body. So as all I’m thinking, okay, what are the things and Charter of Rights and
SGT. MACGILLIVRAY: ... Ah, and his tombstone information -- ah, by that I mean and the date of birth of the person inside, Kristen think, his mother’s phone number. He was on, ah, on me calling his mom. Urn... D/CST. MACADAM: For what purpose? SGT. MACGILLIVRAY: He didn’t say. juxtaposing, saying, “I’m sorry, I’m sorry, I’m like, “I’m sorry, I’m sony, I’m sorry this my mom,” that kind of thing. Urn, and mother. I said I wouldn’t. Ah, I wasn’t -- bartering information, “You-- I will call your - that never -- that never took place. Urn, and e and in the circumstances of the case, that the I might even have written in my notes that I said about -- like, and so it was a silent conversation, D/CST. MACADAM: You can refer SGT. MACGILLIVRAY: Yeah. D/CST. MACADAM: .. .to look at something, if SGT. MACGILLIVRAY: Yeah. It was ambulance ride I remember -- I said, “No were delayed in the... D/CST. MACADAM: You -- you didn’t -- SGT. MACGILLIVRAY: No. D/CST. MACADAM: Other than... SGT. MACGILLIVRAY: No. D/CST. MACADAM: . . .his tombstone SGT. MACGILLIVRAY: And other -- there, it says, “In ambulance at 8:03.” Urn, and you see Mr., ah, Mr. Butcher’s address there, ah, and Johnston, ah. and you see the, ah, the “yes” et cetera, you can see I read Charter of Rights that was from a written card at the time. Then see the QEII emerge room. D/CST. MACADAM: Okay. So rights and caution from... SGT. MACGILLIVRAY: That’s... D/CST. MACADAM: . . .from your
Page 18 so I sat in the jump seat and asked him name, date of birth, ah -- the name [sic]. Ah, he also volunteered, I adamant that -- really -- really fixated Um, although he kept saying — sorry, I need to call my mom,” happened, yeah, I did -- I need to call urn, he asked me if I would call his I wasn’t going to, again, get into mom if you tell me this,” that kind -so I wanted to make sure that the only likely explanation for the hear I wouldn’t ask him any questions aside from him saying... to your notes if you want... you want to... just -- it was just that during the questions asked,” urn, that my notes you didn’t ask any questions? information. other than -- the first thing that you see then it’s just a matter of-- then then information on, ah, Ms. to legal aid, police caution, et cetera, and caution from -- that was from --it shows what time we’re at -- you it’s in the ambulance you read him the notebook?
SGT. MACGILLIVRAY: From my notes, that’s have a laminated sheet that says what the D/CST. MACADAM: Okay. And SGT. MACGILLIVRAY: Word for absolutely. And that’s -- that’s -- that is which I read Charter and caution. In this sure that he had something to hold onto prior my gear. It shouldn’t be his fault that, ah... D/CST. MACADAM: Okay. SGT. MACGILLIVRAY: . . .that I didn’t get D/CST. MACADAM: Um, and what did the rights and caution from your... SGT. MACGILLIVRAY: Ah, again, these the time in my own handwriting, that he lawyer, yes, he wanted legal aid, and that he D/CST. MACADAM: Okay. Did SGT. MACGILLIVRAY: No. [46] The Crown argues that Sergeant MacGillivray medium to another, and that any difference statement is merely “clarification”. [47] In Bradshaw, Karakatsanis J. emphasized that the statement is so reliable that contemporaneous declarant would add little, if anything, to Charter warning, Sergeant MacGillivray There are inconsistencies between his notes, reports agree that any differences are merely attributable phraseology.
[48] Section 10(b) of the Charter requires certain information upon detention or arrest. In Lamer C.J., speaking for the majority, stated (d) Summary of Principles Section 10(b) of the Charter constitutional obligation on governments or likewise, provide detainees with a guaranteed preliminary legal advice upon request.
Page 19 correct, yeah. Actually, I Charter of Rights and cautions are. you read that word for word? word, verbatim, right from it, yeah, the standard -- that is the standard by case, ah, again, I deviated just to make to me being able to fumble with all a chance to say something. he say back when you had read are from my notes which I made at said yes to the Charter, yes, he wanted a understood the police caution. you ask him anything after that? is consistent from one between his various notes and his video that a trial judge must be satisfied cross-examination of the the process. Regarding the s. 10(b) says different things at different times. and video evidence. I do not to levels of completeness in
the police to provide a person with R. v. Prosper, [1994] 3 S.C.R. 236, at pp. 278-279: does not impose a substantive to ensure that duty counsel is available, right to free and immediate However, in jurisdictions where a duty
counsel service does exist but is unavailable 10(b) does impose an obligation on state evidence from a detainee, provided that the counsel and is reasonably diligent in exercising provide the detainee with what, in the circumstances, is to contact duty counsel. While this holding-off cases of urgency, the evidentiary presumption which provides that readings taken within proof of the blood alcohol level at the time ‘urgent factor to override a detainee’s right to In addition, once a detainee asserts duly diligent in exercising it, thereby triggering hold off, the standard required to constitute high. Upon the detainee doing something his or her mind and no longer wishes to speak to advise the detainee of his or her right to counsel and of their obligation during evidence from the detainee. With respect to the initial information reiterate what I said in Bartle, supra -- namely, that a 10(b) to be advised of whatever system for the jurisdiction at the time and of how dialling a 1-800 (toll-free) number). Where as was the case here and in Matheson, a upon detention of his or her right to apply provincial or territorial legal-aid plan. [49] In Detective Constable MacAdam’s MacGillivray says he told Mr. Butcher about free his KGB statement, Sergeant MacGillivray about free and immediate legal advice. The Charter was violated as Mr. Butcher was advice.
[50] The Crown also admits that Mr. Butcher implement his right to counsel at the relevant times, but answers were such (“lifesaving” or “tombstone” need for implementation prior to the police [511 The Crown asks that the video statement be examination of Sergeant MacGillivray is 595, Coiy J. emphasized the significance of
Page 20 at the precise time of detention, s. authorities to hold off from eliciting detainee asserts his or her right to it. In other words, the police must a reasonable opportunity requirement does not apply in under s. 258(l)(d) of the Code, two hours of an alleged offence are of the offence, is not a sufficiently counsel under s. 10(b). his or her right to counsel and is the obligation on the police to effective waiver of this right will be which suggests he or she has changed to a lawyer, police will be required a reasonable opportunity to contact this time not to elicit incriminating component of s. 10(b), 1 would detainee is entitled under s. free, preliminary legal advice exists in such advice can be accessed (e.g., by no such duty counsel system exists, detainee must nevertheless be advised for legal aid under the applicable notes he says that Sergeant and immediate legal advice. In does not mention advising Mr. Butcher Crown concedes that s. 10(b) of the not told about free and immediate legal
was not provided an opportunity to says that the questions and type information) as to negate the eliciting this type of information. admitted although no cross-possible. In R. v. Osolin, [1993] 4 SCR cross-examination:
157 There can be no question of the importance essential importance in determining whether most honest witness cross-examination frailties of the testimony. For example, it can sight or hearing. It can establish that the limited the ability of a witness to observe, or would have distorted vision or hearing. Its ultimate means of demonstrating truth and must be permitted so that an accused can opportunity to cross-examine witnesses is fundamental to an accused. This is an old and well established the presumption of innocence. See R. 1’. Anderson C.A.); R. v. Rewniak (1949), 93 C.C.C. (1955), 115 C.C.C. 119 (Que. Q.Bj; R. v. Lindlait (1978), 40 CA.). The importance of the right to cross-examine Court in the reasons of Ritchie J. in Titus pp. 263-64. There he wrote: I think it essential to stress the purpose is permitted, namely, in order that the factors which might expose the prosecution. That the accused as he murder is deemed to be innocent until proven doubt is one of the fundamental presumptions and as such the accused is entitled testing the evidence called by the in my opinion this includes the right to of indicating that any of the prosecution favouring the Crown. [52] From the perspective of the trier aspects of the video statement are Sergeant MacGillivray’s Butcher, Mr. Butcher’s spontaneous and question and answer exchanges with Mr. Butcher, and The technical s. 10(b) Charter issues are material to dire only. [53] If Sergeant MacGillivray was available and there was an inconsistency between MacGillivray says he gave to Mr. Butcher KGB statement or his testimony before assess his credibility and to determine whether all of his testimony. However, the provision material aspect of his evidence before the jury.
Page 21 of cross-examination. It is of a witness is credible. Even with the can provide the means to explore the demonstrate a witness’s weakness of existing weather conditions may have that medication taken by the witness importance cannot be denied. It is the of testing veracity. Cross-examination make full answer and defence. The providing a fair trial to principle that is closely linked to (1938), 70 C.C.C. 275 (Man. 142 (Man. C.Aj; Abel v. The Queen C.C.C. (2d) 47 (Ont. was well expressed by the v. The Queen, [1983] 1 S.C.R. 259, at for which the cross- examination defence may explore to the full all frailty of the evidence called by the stands in the prisoners box on trial for guilty beyond a reasonable inherent in the common law to employ every legitimate means of Crown to negative that presumption and explore all circumstances capable witnesses had a motive for of fact on the trial proper, the material observations of Mr. repeated comment of “I’m sorry”, his his level of comprehension. the pre-trial admissibility voir for cross-examination before the jury the s. 10(b) Charter rights Sergeant in his notebook notes as compared to his the jury, then the jury could use that to they would believe some, none, or of proper Charter rights is not a
[54] As stated in Bradshaw, while the standard a guarantee, as the word is used in the trustworthiness”, does not require that reliability certainty. Rather, the trial judge must be that contemporaneous cross-examination anything to the process. Substantive reliability made under circumstances which substantially declarant was untmthfiil or mistaken; under skeptical caution would look upon it as reliable that it is unlikely to change under cross-examination. [55] The inconsistency between Sergeant MacGillivray’s various notes regarding the exact wording render the video statement inadmissible regarding the july. Considering the corroborating evidence these material aspects, what Sergeant MacGillivray (aside from the opinions and speculation) during cross-examination. However, that does There is still the issue of voluntariness and Voluntariness [56] The burden is on the Crown to prove made to a person in authority beyond a reasonable Threats or Promises [57] Mr. Butcher had just called 911 and [58] The ERT team members, along with Butcher as he came out of the house. They on the ground, stretch out, and look away from [59] When he first encountered Mr. Butcher, Sergeant MacGillivray in a police uniform and had his assault rifle Mr. Butcher on their way into the house, in ready.
Page 22 for substantive reliability is high, phrase “circumstantial guarantee of be established with absolute satisfied that the statement is so reliable of the declarant would add little if is established when the statement is negate the possibility that the such circumstances that even a trustworthy; when the statement is so video statement and his of the s. 10(b) Charter rights does not the material aspects relevant to called on the voir dire related to says in his video statement is so reliable as to be unlikely to change not end the admissibility analysis. Charter considerations. the voluntariness of any statement doubt. stated that he had killed his girlfriend. Sergeant MacGillivray, approached Mr. shouted directions, ordering him to get them. Mr. Butcher complied. was dressed pointed at him. Other officers passed combat gear with assault rifles at the
[60] Sergeant MacGillivray says that he Mr. Butcher’s injuries, and said “I’m Matt. you. Ambulance is on its way.” He then top of the steps just outside of the house. killing his girlfriend. Because of the mayhem inadequate recitation of his s. 10(b) Charter opportunity to implement his right to counsel. [61] Although the police initially had their discontinued this once they saw the extent of compliance. He was not threatened into providing was requested from him at that time. Once police did not implicitly or overtly threaten [62] While Sergeant MacGillivray told Mr. Butcher was not an inducement. Mr. Butcher was was a first-responder who, by all witness accounts, did [63] In R. v. Qickle, 2000 SCC 38, lacobucci J. explained quid pro quo offer from the police in determining inducement:
57 In summary, courts must remember some kind of inducement to the suspect to spontaneously confess to a crime. In the have to somehow convince the suspect that it is confess. This becomes improper only when alone or in combination with other factors, are doubt about whether the will of the subject has found the following passage from R. v. Rennie(1981), 74 atp. 212, particularly apt: Very few confessions are inspired an accused are mixed and include to an earlier release or a lighter sentence. presence of such a motive, even if a person in authoriw, led inexorably nearly every confession would be law. In some cases the hope may even if it provides the dominant motive such a case the confession will not have done by a person in authority. More
Page 23 was shocked by the situation, including I’m a police officer. I’m here to help arrested Mr. Butcher on the deck at the He was told he was under arrest for of the situation, he was given an right to counsel. He was not given an guns pointed at Mr. Butcher, they his injuries and his level of information, as no information Mr. Butcher was lying on the deck, the him. that he was there to help, this gravely injured. Sergeant MacGillivray help Mr. Butcher. the significance of a whether there was an improper
that the police may often offer obtain a confession. Few suspects will vast majority of cases, the police will in his or her best interests to the inducements, whether standing strong enough to raise a reasonable been overborne. On this point I Cr. App. R. 207 (CA.), solely by remorse. Often the motives of a hope that an early admission may lead If it were the law that the mere promoted by something said or done by to the exclusion of a confession, rendered inadmissible. This is not the be self-generated. If so, it is irrelevant, for making the confession. In been obtained by anything said or commonly the presence of such a
hope will, in part at least, owe its a person. There can be few prisoners questioned in a police station to whom able to bring both their interrogation by confession. The most important consideration in all cases by interrogators, regardless of whether promise.
[64] Sergeant MacGillivray simply told him. He did not interrogate him. This was whereby help was offered in exchange for whether Mr. Butcher had an operating mind, I am doubt that any statements made to Sergeant MacGillivray voluntary.
Operating Mind [65] The evidence called on the voir Butcher had an operating mind. Through defence attempted to elicit testimony that Mr. Butcher’s may have been so severe that he did not have Trites did not communicate with Mr. Butcher purely speculative. [66] The evidence on the voir dire does may not have had an operating mind due to paramedics was that Mr. Butcher was alert, responsive, and McKinnon testified that Mr. Butcher was alert and cognizant. This corroborates MacGillivray, where he also says that Mr. Butcher [67] Mr. Butcher knew what he was saying officer who could use his words to his detriment. [68] Justice Jacobucci clarified in Oickle the context of a voluntariness analysis: 63 This Court recently addressed in Whittle, supra, and I need not repeat that exercise J. explained that the operating mind requirement “does
Page 24 origin to something said or done by such who are being firmly but fairly it does not occur that they might be and their detention to an earlier end is to look for a quid pro quo offer it comes in the form of a threat or a
Mr. Butcher that he was there to help not in any sense a quid pro quo offer, information. Subject to the question of convinced beyond a reasonable by Mr. Butcher were
dire supports the conclusion that Mr. cross-examination of Dr. Trites, the injuries and blood loss an operating mind. However, Dr. prior to surgery. His evidence was not support Mr. Butcher’s theory that he his injuries. The testimony of the EHS fully cognizant. Dr. able to follow all directions and was fully the video statement of Sergeant was fully alert and cognizant. and knew he was speaking to a police what constitutes an operating mind in this aspect of the confessions rule here. Briefly stated, Sopinka not imply a higher degree
of awareness than knowledge of what the to police officers who can use it to his detriment” simply add that, like oppression, the operating understood as a discrete inquiry’ completely confessions rule. Indeed, in his reasons perceived the operating mind doctrine principle of voluntariness: statements are in the ordinary English sense of the word circumstances such as existed in the present case”. [69] I am convinced beyond a reasonable of Dr. Trites, that Mr. Butcher had an MacGiflivray encountered him until the time made by Mr. Butcher between the time the time he went in to surgery were voluntary. Section 10(b) of the Charter Comments made by Mr. Butcher to Sergeant being read in the ambulance [70] Mr. Butcher bears the burden of proving of probabilities. [71] The Crown concedes that s. 10(b) Butcher spoke to Sergeant MacGillivray ambulance, because he was not told about free Sergeant MacGillivray told Mr. Butcher deficiently) Mr. Butcher advised him that he informational component of s. 10(b) was breached. [72] The Crown says the breach was minor weighing and balancing the s. 24(2) Charter being admitted. [73] Mr. Butcher also alleges a breach s. 10(b). In R. i.’. G.T.D., 2018 SCC 7, the violated the accused’s s. 10(b) Charter rights component. The majority decided that s. 24(2). Brown J. said, at pp. 1-3:
Page 25 accused is saying and that he is saying it (p. 936). 1 agree, and would mind doctrine should not be divorced from the rest of the in Hon’ath. supra, at p. 408, Spence J. as but one application of the broader inadmissible if they are “not voluntary because they were induced by other doubt, even considering the testimony operating mind from the time Sergeant he went into surgery. The statements police encountered him through to the MacGillivray prior to the card any Charter violation on a balance of the Charter was violated when Mr. before the card was read to him in the and immediate legal advice. Once about his right to counsel (albeit wanted to speak to a lawyer. The or technical in nature and therefore factors should result in the evidence of the implementational component of unanimous court held that the police had due to a breach of the informational the evidence should be excluded under
BROWN J. — G.T.D. was convicted for the partner and appeals as of right on the strength of Alberta. The dissenting judge would have that the delivery of the Edmonton Police G.T.D.’s right to counsel under s. 10(b) Freedoms and that the inculpatory statement G.T.D. offered excluded under s. 24(2) of the Charter according Grant, 2009 SCC 32 (CanLil), [2009] 2 S.C.R. 353. The Appeal agreed that G.T.D.’s right to counsel had appeal on the basis that the statement should The right to counsel under s. 10(b) of the from attempting to elicit incriminatory evidence has had a reasonable opportunity to reach 65 (5CC), [1994] 3 S.C.R. 236, at p. 269). The the question “Do you wish to say anything?”, asked standard caution used by the Edmonton invoked his right to counsel, violated this view that it did, because it elicited a statement from The next issue is whether this breach warrants under s. 24(2) of the Charter. A majority and relies substantially on the reasons of As she noted at para. 83 of her reasons, the ffirther evidence about Edmonton Police to do so. The majority would therefore allow [74] The majority relied substantially on in the Alberta Court of Appeal decision, at 2017 Veidhuis J.A. explained some of the guarantees everyone the right to retain and detained:
[53] There are two main reasons everyone the right to retain and instruct a them. The first is to help detainees regain that detainees understand their legal rights to ensure they understand their right to informed decision about whether to waive legal advice relevant to their situation... [54] Although the right to counsel addresses self-incrimination, a lawyer’s role goes beyond has the right to remain silent. If this was all that the right to counsel could be replaced by the that he is not obliged to say anything, or with
Page 26 sexual assault of a previous intimate of a dissent at the Court of Appeal ordered a new trial on the ground Service’s standard caution breached of the Canadian Charter of Rig/its and in response should be to the test set out in R. v. majority at the Court of been breached, but dismissed the not be excluded. Charter obliges police to “hold off from the detainee until he or she counsel” (R. v. Prosper, 1994 CanLil first issue in this appeal is whether at the conclusion of the Police Service after G.T.D. had already duty to “hold off’. We are all of the G.T.D. the exclusion of G.T.D.’s statement of the Court is of the view that it does, Justice Veldhuis at the Court of Appeal. Crown had ample opportunity to call Service training or policy, but chose not the appeal and order a new trial. the dissenting reasons of Veldhuis J.A. ABCA 274. In her dissent, reasons why s. 10(b) of the Charter instruct a lawyer if they are arrested or
why s 10(b) of the Charter guarantees lawyer if the police arrest or detain their freedom... The second is to ensure and obligations, and most importantly, remain silent, so they can make an their right to silence after receiving concerns about involuntary simply telling a detainee that he lawyer needed to explain, the police caution, which tells a detainee a recorded telephone message like
the one Binnie J posited in Sinclair (at para one to repeat this message.” A lawyer not only understands his rights and obligations, but equally can advise the detainee about how to exercise not just informational, but also advisory: The detained suspect, potentially informed and sophisticated powers to rectify the disadvantage by speaking that he is aware of his right not to appropriate advice with respect to [75] In discussing when s. 10(b) rights Veidhuis J.A. stated: [57] To help achieve the purposes both “informational” and “implementational” detainee is vulnerable from the moment concerns, the police have an informational duty about his right to counsel... If the detainee have an implementational duty to provide the first reasonable opportunity... [58] In practice, the police often cannot provide access to a lawyer. For example, when a police place, the officer must take the detainee private... As a result, when a detainee asks an obligation to “hold off’ on taking certain has a reasonable opportunity to consult with questioning or otherwise attempting to elicit evidence p 12), as Lamer CJC explained in Prosper Once a detainee has indicated a counsel, the state is required to opportunity in which to do so. In eliciting incriminatory evidence from reasonable opportunity to reach counsel. or her right to counsel, the police make a decision or participate in a adverse effect in the conduct of an reasonable opportunity to exercise obliged to “hold off’ from attempting from the detainee until he or she has counsel.
Page 27 86): “... keep your mouth shut; press helps ensure that the detainee if not more important, a lawyer his rights... The lawyer’s function is at a disadvantage in relation to the at the disposal of the state, is entitled to legal counsel at the outset, so speak to the police and obtains the choice he faces. [Hebert at p 176, emphasis added] might be important to an accused, of the right to counsel, s 10(b) imposes obligations on the police... A he is first detained. Absent any safety to immediately tell the detainee asks to speak with a lawyer, the police the detainee with access to counsel at a detainee with immediate officer makes an arrest in a public somewhere to speak with counsel in to speak with a lawyer, the police have investigative steps until the detainee counsel... The police must “cease from the detainee” (Ross at (at p269, internal citations omitted): desire to exercise his or her right to provide him or her with a reasonable addition, state agents must refrain from the detainee until he or she has had a ... [O]nce a detainee asserts his cannot in any way compel him or her to process which could ultimately have an eventual trial until that person has had a that right. In other words, the police are to elicit incriminatory evidence had a reasonable opportunity to reach
[76] The police could not practically or opportunity to contact a lawyer prior to receiving and safety were the immediate priority. engaged Mr. Butcher in conversation to try him from slipping into shock. [77] Justice Veidhuis explained that the flexible once an accused has indicated an interest in [74] The duty to hold off requires police attempting to elicit evidence from the detainee”: Ross Until a detainee has a reasonable opportunity must not ask one eliciting question, ten questions. As the facts of Manninen demonstrate, it may to cause the detainee to incriminate himself: Manninen the arresting officer did not interview the seems that the arresting officer was incriminating response to his single question. [76] The appellant did not waive his arresting officer’s question. The appellant questions, and he must not be held to have because he answered”: Manninen at p 1244. [78] Mr. Butcher was given an incomplete The informational component of s. 10(b) opportunity to call a lawyer during his implementational component of s. 10(b) unprompted, spontaneous statements blurted inculpatory or otherwise, are admissible. Sergeant MacGillivny duty to “hold off’ when Mr. Butcher made sony” and asked to have the first responders were not elicited. As Veidhuis J.A. noted: [70] The police do not violate their duty an entirely unprompted inculpatory statement... But this detainee blurted out an admission without any officer.. Nor is it a case where the detainee inculpatory comments as the officer or Charter warning...
Page 28 safely provide Mr. Butcher with an emergency surgery. His health Sergeant MacGillivray says that he and keep him focused and to prevent duty on the police to “hold off’ is not speaking to a lawyer: to “cease questioning or otherwise at p 12 (emphasis added). to speak with counsel, the police eliciting questions, or ten hours of take only a few questions at p 1238. Interestingly, appellant after he called a lawyer. It quite satisfied with the appellant’s right to counsel by responding to the “had the right not to be asked implicitly waived that right simply explanation of his right to counsel. was infringed. He never had the time with Sergeant MacGillivray. The was also infringed. Nonetheless, any out by Mr. Butcher, whether did not violate his the unprompted statements of “I’m contact his mother. Those comments to “hold off’ when a detainee makes is not a case where the eliciting question from the police intermpted the police officer, making attempted to read him the caution
[79] Mr. Butcher’s repeated comments speak to his mother or have the first responders admissible. Sergeant MacGillivray’s observations was alert and coherent are also admissible. observing an accused person prior to their counsel.
[80] The Crown argues that Sergeant MacGillivray’s Butcher in conversation were “lifesaving” slipping into shock, and that his questions inside the home, his “tombstone” questions none of which were designed to elicit incriminating as well, since they say that s. 10(b) does questioning. In making this argument the 2018:
It is important to note that the case specifically from R. v. Prospei supra, - that police have to elicit incriminatory evidence from the Police’s standard (‘harter card: Without deciding how far police questioning, I note the questions asked as are the circumstances in which most cases, a reasonable person “booking questions” to elicit potentially otherwise have an adverse effect on contrast, the broad question “do immediately after the officer told invited the appellant’s response to serious risk of self-incrimination. (paragraph decision adopted by the Supreme Court in R. v. G.T.D., supra [sic], does not address “unprompted inculpatory statements” — Edmonton Charter Card standard question [8lj The Crown goes on to refer to certain J.A., and says: It is therefore the Crown’s position that R. apply to this case as this case is not one police card. However, the Crown certainly
Page 29 of “I’m sorry” and repeated requests to get in touch with his mother are of Mr. Butcher as to whether he The police are not prohibited from having an opportunity to contact
efforts to engage Mr. questions, intended to prevent him from about the location of Ms. Johnston about Mr. Butcher and Ms. Johnston, information, are all admissible not provide protection from such Crown states in their brief of March 21,
applied the long-standing principle the duty to hold off from attempting detainee....” — related to the Edmonton may go with any such preliminary in these cases are distinguishable, the police asked those questions. In would not expect a few innocuous incriminating information or the conduct of the detainee’s trial. In you wish to say anything?” - asked the appellant why he was arrested the substance of the charges and posed a 72 of the Court of Appeal r. [sic] i’. G.T.D.) the analysis on “routine” questions, or rather, it specifically analyzed the “do you ii’ish to say anything passages from the reasons of Veidhuis v. G.T.D., supra does not factually where there is an issue of a standard agrees that R. v. G. I’D., supra, re
iterates the long-standing principle from R. v. Prosper, supra, that the the duty to hold off from eliciting incriminatory [82] The words of Veidhuis J.A. on this in context when considering how far police not designed to elicit incriminating information under arrest or being detained: [671 The respondent asserts that the impugned to respond to the substance of the allegations, but rather question, inquiring whether the appellant wanted presumably later in the investigation. The had simply responded “yes,” the arresting opportunity to speak with a lawyer before [68] I am not convinced that the impugned word response, as the facts of this case interpret the question as a “yes or no” inquiry, but many understand it as a prompt for a substantive [69] Even if the arresting officer was wanted to give a statement at all — that is, after lawyer — the officer was still prompting which could ultimately have an adverse trial”: Ross at p 12 (emphasis added). It is with the police who require legal advice. There uncommon, where a lawyer might advise because doing so could help exonerate him... For airtight alibi, immediately disclosing his witnesses might convince the police to also be circumstances where a prompt exculpatory the detainee is first confronted with an allegation, may advantage at trial... Even refusing to repercussions.
[70] The police do not violate their duty an entirely unprompted inculpatory statement... But this detainee blurted out an admission without any officer... Nor is it a case where the detainee inculpatory comments as the officer or Charter warning... [71] The respondent suggests the before giving a detainee the opportunity Sinclair, 2003 BCSC 2040 (CanLil) at paras the place of arrest); R v Learning, 2010 ONSC 83, 258 CCC (3d) 68 (biographical details
Page 30 police have evidence. issue need to be examined together and can go with “preliminary questions” from an accused person who is question was not an invitation a simple “yes or no” to give a statement eventually, respondent argues that if the appellant officer would have afforded him an questioning him any flrnher. question lends itself to a single-demonstrate. Some detainees might other detainees would response to the allegations. merely asking whether the appellant having a chance to speak with a the appellant “to make a decision effect in the conduct of an eventual not only detainees inclined to speak are circumstances, even if a detainee to cooperate with the police example, if the detainee has an whereabouts and naming his alibi release him without charge. There may statement, made shortly after be used to the detainee’s make a statement may have serious
to “hold off’ when a detainee makes is not a case where the eliciting question from the police interrupted the police officer, making attempted to read him the caution police may ask sonic ;-outine questions to consult with counsel: see e.g. R v 68-76 (ownership of belongings at 3816 (CanLil) at paras 38-45, 78-such as name, date of birth, and
weight); R v Dupe, 2010 ONSC 6594 (CanLIl) about health conditions, medication, and BCCA 334 (CanLil) at pans 16, 61-65, 340 detainee has “anything on her” prior to ONSC 1552 (CanLIl) at paras 16, 33-37, 40-42, 331 about medication and health issues). 1695 (CanLIl) at paras 170-221 (disapproving v ATgo, 2003 ABCA 121 (CanLil) at paras questions used to obtain voice identification 57 (CanLil) at paras 95-104, 35 CR (7th) a frisk search should be narrowly tailored the detainee’s answers may be inadmissible). [72] Without deciding how far police questioning, I note the questions asked in the circumstances in which the police asked reasonable person would not expect a few potentially incriminating information or conduct of the detainee’s trial. In contrast, the anything?” — asked immediately after the arrested — invited the appellant’s response posed a serious risk of self-incrimination. [731 In undercover police operations, “elicitation” whether the undercover officer’s conduct was interrogation”: R v Broyles, 1991 CanLII 612.9 CR (4th) 1. Some courts have relied police conduct other than direct questioning off: McKenzie at paras 27-39; R v Smith, 2008 22. 234 OAC 262. It is unnecessary to however. The arresting officer posed a response. His question was not merely interrogation — in effect, it was an interrogation, albeit a confrontational one. [74] The duty to hold off requires police attempting to elicit evidence from the detainee”: Ross Until a detainee has a reasonable opportunity must not ask one eliciting question. ten questions. As the facts of Manninen demonstrate, it may to cause the detainee to incriminate himself: Pvlanninen the arresting officer did not interview the seems that the arresting officer was incriminating response to his single question. [75] Section 10(b) does not promise legal advice would give up their right to silence after
Page 31 at paras 12-18, 19-38 (questions drug consumption); R v Ashbv, 2013 BCAC 298 (asking whether the a pat-down search); R v Muffins, 2015 CRR (2d) 95 (questions But see also R v Smith, 2011 BCSC of “rapport building” questions); R 17-39, 327 AR 320 (disapproving of evidence); R v Patrick, 2017 BCCA 59 (suggesting questions asked prior to to address officer safety issues, and that may go with any such preliminary these cases are distinguishable, as are those questions. In most cases, a innocuous “booking questions” to elicit otherwise have an adverse effect on the broad question “do you wish to say officer told the appellant why he was to the substance of the charges and has been defined in terms of the “functional equivalent of an 15 (SCOt [19911 3 SCR 595 at pp 609-on this definition to decide whether violates the duty to hold ONCA 127 (CanLil) at paras 17-rely on these authorities in this case. direct question that elicited a direct the functional equivalent of an very’ brief and non to “cease questioning or otherwise at p 12 (emphasis added). to speak with counsel. the police eliciting questions. or ten hours of take only a few questions at p 1238. Interestingly, appellant after he called a lawyer. It quite satisfied with the appellant’s only to those detainees who a lengthy or manipulative interrogation.
Section 10(b) also guarantees legal advice agree to tell “their side of the story” if the detainees are vulnerable, and both are in their rights. The right to speak with a lawyer use trickery or abusive questioning to elicit a [76] The appellant did not waive his arresting officer’s question. The appellant “had questions, and he must not be held to have because he answered”: Manninen at p 1244. [77] In conclusion, the arresting officer off’ when he asked the appellant “do appellant invoked his right to counset, but before opportunity to speak with a lawyer. [Emphasis [83) In R. v Smith, 2008 ONCA 127, Rosenberg meaning of “elicitation”: (c) Police duty to cease questioning or otherwise [17] The appellant submits that there because the police failed to carry out the “cease questioning or otherwise attempting until he has had a reasonable opportunity appellant relies on this court’s decision 45009 (ON CA), 167 C.C.C. (3d) 530. while there was no direct questioning of amounted to eliciting within the meaning explanation of the word “elicit” at para. 4: Although the word “elicit” does meaning, I am of the view that the concentrates on the interchange between view to determining whether, in all of link between the conduct of the police the detainee. [18] Moldaver J.A. went on to apply the conduct in that case “amounted interrogation” and “constituted a form of had the effect of bringing about a mental state likely to talk”. He therefore found that the [19] While Moldaver l.A. in McKenzie whether there is a “causal link” between the statement, it is apparent from the subsequent discussion sufficient to constitute elicitation. Rather, the
Page 32 to detainees who would immediately police politely ask. Both categories of need of advice about how to exercise does not turn on whether the police response from the detainee. right to counsel by responding to the the right not to be asked implicitly waived that right simply breached s 10(b) by failing to “hold you wish to say anything?” after the the appellant had a reasonable added] J.A., for the court, discussed the attempting to elicit evidence was a further violation of s. 10(b) other duty recognized in Manninen: to to elicit evidence from the detainee to retain and instruct counsel”. The in R. i’. McKenzie (2002), 2002 CanLIl In that case, Moldaver J.A. found that the accused by the police, their conduct of Manninen. He provided this not lend itself to a short and precise test to be applied is one which the police and the detainee with a the circumstances, there is a causal and the making of the statement by this test and found, at paras. 35-36, that to the functional equivalent of an manipulation which, even if unintended, in which the appellant was more accused’s rights had been infringed. set out the broad test of asking police conduct and the making of the that a causal link is not court must have regard to a number
of factors to decide the issue. Thus, at para. 29, Moldaver Broyles (1991), 1991 CanS! 15 (8CC), 68 Court of Canada dealt with elicitation in the use of police agents to obtain incriminating In Broyles at p. 321, lacobucci I. listed several factors determining whether there was a causal link agent and the making of the statement: The first set of factors concerns the accused and the state agent. Did information such that the exchange interrogation, or did he or she conduct his as someone in the role the accused would ordinarily have done? The conversation, but rather on whether were the functional equivalent of an The second set of factors concerns the state agent and the accused. Did characteristics of the relationship relationship of trust between the accused obligated or vulnerable manipulate the accused to bring about a was more likely to talk? [Emphasis [20] While Moldaver J.A. observed in precisely into the s. 10(b) analysis, they the elicitation issue in the A’fannincn context. [84] Even if an accused indicates a desire with s. 10(b) of the Charter, the police are booking for the sole purpose of determining safety issues that might arise while the accused J. stated in R. v. Muffins, 2015 ONSC 1552: [39] Although, the defence did not assert any counsel under s. 10(b) of the Chat-ter I have the booking sergeant might be inadmissible yet been given an opportunity to speak to statement on this ground either. [40] In this case, Mr. Mullins was promptly transported to the police station. wished to speak to a lawyer. There was save for the routine questions asked on booking. he was given the opportunity to speak to counsel.
Page 33 J.A. refers to R. v C.C.C.(3d) 308, where the Supreme context of s. 7 of the Charter and the statements from a detainee. a court should consider in between the conduct of the state nature of the exchange between the the state agent actively seek out could be characterized as akin to an or her part of the conversation believed the informer to be playing focus should not be on the form of the the relevant parts of the conversation interrogation. the nature of the relationship between the state agent exploit any special to extract the statement? Was there a state agent and the accused? Was the to the state agent? Did the state agent mental state in which the accused added.) McKenzie that these factors do not fit provide a helpful guide in approaching to speak with a lawyer in accordance entitled to ask them routine questions in whether there are any health and is in the police station. As Molloy breach of Mr. Mullins’ right to considered whether his statement to on this ground, given that he had not a lawyer. I find no basis to exclude the advised of his rights, cautioned, and He indicated in the police car that he no questioning of him afier that point, Once booking was completed, It is clear on these facts and on
well-established case law that both the components of the right to counsel were given to Det. Thomas. However, I have considered indicated his wish to consult counsel, the firther questioning extends to the routine it does not. In this regard, I agree entirely Dambrot J. in R. i& Dupe. In that case, an murder was asked a number of health-related those asked of Mr. Mullins in this case. As were routine and were asked for the sole were any health and safety issues that might arise custody at the police station. Dambrot J. concluded questioning applied only to questioning offence and not to inquiries of this nature. He the answer to an innocuous question asked useful to the Crown does not change the conclusions were reached in R. v. Learning of processing); R. v. Sinclair (whether clothing an accused was arrested were part of his him); R. v. Smith (questions about medical condition Hector (place of residence). Thus, I find not violate s. 10(b) of the C’harter and cannot be basis.
[85] The remaining hearsay statements case include Sergeant MacGillivray asking in the house, to which he replied: “1 have Sergeant MacGillivray then asking “What Butcher answered in a way that Sergeant MacGillivray the bathroom and communicated this to ERT Mr. Butcher who said she was in the bedroom. [861 Sergeant MacGillivray had been advised that Mr. Butcher told 911 that he had killed right away “for killing his girlfriend”. operational questions that he wanted answered as whether there were other people in the innocuous questions that would have no impact on [87] Sergeant MacGillivray asked Mr. Butcher house and where his girlfriend was in the home. While for Sergeant MacGillivray to ask at the time, in
Page 34 informational and implementational complied with prior to the statement whether, once an accused has obligation of the police to hold off questions asked at booking. I find that with the reasoning of my colleague accused charged with first degree questions at booking, similar to in the case before me, the questions purpose of determining whether there while the accused was in that the obligation to hold off directed towards investigation of the stated (at para. 25), “The fact that for a different purpose may prove to be character of the questioning.” Similar (background information for purposes and a wallet at the location where personal property to be taken with on booking); and R. v. that the questions asked at booking did excluded from evidence on that
made to Sergeant MacGillivray in this Mr. Butcher if there were other persons a tenant that lives in the basement”; about the girlfriend?”, to which Mr. thought he said she was in members, and was then corrected by prior to encountering Mr. Butcher his girlfriend. He arrested Mr. Butcher Sergeant MacGillivray may have had right away for safety purposes, such home, but these were not necessarily Mr. Butcher’s trial. if there were other people in the it may have been important case other persons were injured in
the home or in case Mr. Butcher was mistaken injured but not deceased, it does not make may have been necessary questions to ask does not render them admissible. The questions answers that could inculpate Mr. Butcher. booking questions resulting in an unexpectedly [88] Similarly, Sergeant MacGillivray “tombstone” details of his girlfriend. What was not merely a procedural question related Butcher or his possible medical treatment or innocuous question in the circumstances. own “tombstone” information was perfectly medical condition, was permissible and is Section 24(2) Charter Analysis [89] Having found a violation of Mr. Butcher’s I must now embark on a s. 24(2) Charter analysis. [90) The basic analysis under s. 24(2) Letourneau, 2010 ONSC 2027, [2010] O.J. No. 2635, where 17 Once a breach of a Charter right has exclusion of evidence does not end there. The analysis under s. 24(2) which indicates: 24.(2) Where, in proceedings under evidence was obtained in a manner freedoms guaranteed by this Charter, the established that, having regard to of it in the proceedings would bring disrepute.
18 The s. 24(2) analysis has recently Supreme Court of Canada in the case of Grant, supra, the Supreme Court of Canada faced with applications for exclusion under balance the effect of admitting the evidence system having regard to: (1) the seriousness conduct, (2) the impact of the breach on accused, and (3) society’s interest in the adjudication
Page 35 and his girlfriend was gravely the questions any less significant. They Mr. Butcher at the time, but that alone were foreseeably likely to result in They were not akin to innocuous inculpatory answer. also asked Mr. Butcher for the was the purpose of this question? This to formalities of the arrest of Mr. booking information. This was not an However, asking Mr. Butcher for his acceptable considering his dire not subject to Charter scrutiny. s. 10(b) Charter right to counsel, of the Charter is summarized in R. v. Maranger J. said: been found the inquiry as to the court must then engage upon an subsection 1, a court concludes that that infringed or denied any rights or evidence shall be excluded if it is all of the circumstances, the admission the administration of justice into
undergone significant review by the R. v. Grant, [2009] 2 S.C.R. 353. In instructs the trial court that when s. 24(2), a trial court must assess and on society’s confidence in the justice of the Charter-infringing state the Charter-protected interests of the of the case on its merits.
[91] The Charter-infringing state conduct, in seriousness. Sergeant MacGillivray had Butcher about the situation the police and order to secure the scene, confirm whether Mr. Butcher’s safety. However, the questions and the location of Ms. Johnston’s body, as information, all present a serious threat interests. There is of course, a significant adjudicated on their merits. Such questions inculpatory answers. The urgency of the situation, on seriousness of this; moreover, it is clear there was no practical chance to read Mr. Butcher MacGillivray had made an attempt to do so. [92] The admission of the aforementioned administration of justice into disrepute. interest in the adjudication on the merits ultimately, that the breach and its impact on serious enough to require exclusion of the addressed above are admissible as spontaneous Are EHS paramedics persons in authority? [93] The fourth point of the Crown’s March whether comments made by Mr. Butcher subject to the confessions rule or s. 10(b) during counsel’s submissions. EHS paramedics and in the ambulance on the way to the authority was not argued by Mr. Butcher until the v. Hodgson, [1998] 2 S.C.R. 449, Cory J. explained and when someone might be considered a 25 On a practical level, the overwhelming burden if it had to establish against interest made by an accused elimination of the person in authority consequences for undercover police work evidence, where the identity of the receiver unknown. For example, if the Crown were accused and a confederate who is senior to
Page 36 this case, was not of the utmost urgent justification for questioning Mr. paramedics found when they arrived, in anyone was in danger, and to ensure respecting other people in the home well as Ms. Johnston’s “tombstone” to Mr. Butcher’s Charter-protected societal interest in seeing murder charges carried a real danger of drawing out its own, cannot displace the that the situation was not so urgent that his rights, given that Sergeant statements would bring the While there is a significant societal of a murder charge, I conclude, Charter-protected interests was impugned remarks. The other statements utterances. 6, 2018, correspondence regarding to EHS while the police were present are Charter scrutinS’ was raised by the court treated Mr. Butcher at the scene hospital. Whether they were persons in conclusion of the voir dire. In R. the analysis to determine how person in authority: Crown would obviously face an the voluntariness of every statement to any person... In particular... the requirement would have serious and for the admissibility of wiretap of the accused’s statement is often to intercept a phone call between an him in a criminal hierarchy, the Crown
would obviously have difficulty tendering to prove beyond a reasonable doubt that the of prejudice or hope of advantage”. Moreover, all statements police officers would become subject to accused was completely unaware of their statement, would never have considered authority.
26 Practical considerations alone in authority requirement should remain a can be no doubt that there may well be great unfairness when an involuntary confession obtained of imminent violence by a private individual is [94] In setting out the test to determine whether such that a voluntariness voir dire must be 32 “Person in authority” typically engaged in the arrest, detention, examination However, it may take on a broader meaning. Canadian meaning of “person in authority” in R. v In that case, the accused made a statement to prisoners, but who were in fact acting as pp. 526-27, that: A person in authority means, authority or control over the accused prosecution against him. . . . [T]he persons to possess may well be supposed to animate his hopes of favour on him with awe, and so in some mind.. . . [Emphasis added.) Thus, from its earliest inception in Canadian be considered as a person in authority accused believed the person could influence him or her. The question is therefore accused.
33 The subjective approach to been adopted in this Court The approach then was) in R. v. Berger (1975), 27 C.C.C. (2d) in my view, a clear statement of the law: The law is settled that a person in prosecution who, in the opinion of the prosecution. The test to be
Page 37 the requisite evidence if it were forced statements were made without “fear to undercover the confessions rule, even though the status and, at the time he made the the undercover officers to be persons in
lead to the conclusion that the person part of the confessions rule. Yet there suffered by the accused as a result of violence or credible threats admitted into evidence... someone is a person in authority undertaken, Coiy J. explained: refers to those persons formally or prosecution of the accused... courts first considered the Todd (1901), 4 C.C.C. 514 (Man. K.B.). two men he believed to be fellow agents of the police. It was held, at generally speaking, anyone who has or over the proceedings or the authority that the accused knows such in the majority of instances both the one hand and on the other to inspire degree to overcome the powers of his law, the question as to who should depended on the extent to which the or control the proceedings against approached from the viewpoint of the
the person in authority requirement has adopted by McIntyre J.A. (as he 357 (B.C.C.A.), at pp. 385-86 is, authority is a person concerned with the the accused, can influence the course of applied in deciding whether statements
made to persons connected in voluntary is subjective. In other Whom did he think he was talking that the failure to speak to this person, because the prosecution, would result in prejudice would draw some benefit or reward? impressions the person receiving this person in authority and the statement would 34 However, to this statement I would he is speaking to a person in authority must also the circumstances surrounding the making delusional or had no reasonable basis statement could affect the course of the should not be considered a person in authority. requirement is aimed at controlling coercive authority should not include those whom acting on behalf of the state. Thus, where reprisal or hope of advantage because he the statement is acting as an agent of the could therefore influence or control the proceedings receiver of the statement is properly considered words, the evidence must disclose not only the receiver of the statement to be in a position the accused, but must also establish an belief. For example, if the evidence discloses collaboration between the receiver of the and that relationship was known to the accused, the be considered a person in authority. In prove beyond a reasonable doubt that the [95] Are EHS paramedics presumptively Hodgson, there is no category of persons guard who are automatically considered persons 36 The important factor to note catalogue of persons, beyond a peace automatically considered a person in authority parent, doctor, teacher or employer all may the circumstances warrant, but their status, or some personal authority over the accused, is persons in authority for the purposes of the Attorney General of Canada observed, the evolved in a manner that avoids a formalistic interactions between ordinary citizens.
Page 38 such a way with the prosecution are words what did the accused think? to? . . . Was he under the impression of his power to influence or did he think that a statement If his mind was free of such statement would not be considered a be admissible. add that the accused’s belief that be reasonable, in the context of of the statement. If the accused were for the belief that the receiver of the prosecution against him, the receiver Since the person in authority state conduct, the test for a person in the accused unreasonably believes to be the accused speaks out of fear of reasonably believes the person receiving police or prosecuting authorities and against him or her, then the a person in authority. In other that the accused subjectively believed to control the proceedings against objectively reasonable basis for that a relationship of agency or close statement and the police or prosecution, receiver of the statement may those circumstances the Crown must statement was made voluntarily. persons in authority? As noted in aside from peace officers and prison in authority: in all of these cases is that there is no officer or prison guard, who are solely by virtue of their status. A be found to be a person in authority if the mere fact that they may wield not sufficient to establish them as the confessions rule. As the intervener person in authority requirement has or legalistic approach to the Instead, it requires a case-by-case
consideration of the accused’s belief as statement to influence the prosecution or say, the trial judge must determine whether the receiver of the statement was acting on authorities. This view of the person in authority [Emphasis added] [96] In a separate voir dire, Mr. Butcher case are persons in authority. In the companion NSSC 75, having considered the test and burdens the 911 call-takers were not persons in authority. [97) I apply the same test and standards paramedics. There was absolutely no evidence the conclusion that Mr. Butcher subjectively in authority. Mr. Butcher himself did not testify. evidence, there was no objective evidence paramedics in this case were not persons issue.
Comments to paramedics in the presence [98] Mr. Butcher says that because Sergeant MacGillivray him under arrest, had read him his s. 10(b) deficiently), and because he had confirmed any comments made to EHS paramedics in are inadmissible because of the s. 10(b) MacGillivray was a person in authority and were not voluntary. [99] Jessica DiPasquale was one of the testified on the voir dire that Mr. Butcher said treating him: “Help me”, “I don’t want to neither she, nor the police, said anything to [100] Ms. DiPasquale said that she asked replied “Nick”. She also asked him what he he said “Saw”. She asked him if he was any medications, if he was dizzy, and if he to all those questions. Ms. DiPasquale said any questions in her presence.
Page 39 to the ability of the receiver of the investigation of the crime. That is to accused reasonably believed the behalf of the police or prosecuting requirement remains unchanged. argued that the 911 call-takers in this decision of R. v. Butcher, 2018 outlined in Hodgson, I found that to the analysis relating to the EHS on this voir dire that would lead to felt the EHS paramedics were persons Even if there had been such to support this belief. The EHS in authority. Voluntariness is not an
of Sergeant MacGillivray had already placed Charter right to counsel (although that he wanted to speak to a lawyer, the presence of Sergeant MacGillivray Charter violations or because Sergeant such comments made in his presence paramedics treating Mr. Butcher. She to her at various times while she was die” and “Call my mom”. She said that Mr. Butcher to prompt these words. Mr. Butcher his name to which he used to cut his arm off with to which allergic to any medications, if he was on was in pain, to which he answered “No” that the police did not ask Mr. Butcher
[101] Sarah Brown was another of the first-responders heard the police tell him, “You are under arrest, do Butcher said “Yes”. She also heard Mr. Butcher anyone called my mom”. [102] Ms. Brown said she asked Mr. Butcher “Nick”. She asked him: “Where is your bedroom”.
[103) The words uttered by Mr. Butcher spontaneous and not subject to s. 10(b) Charter to die”, “Call my mom”, “I want my mom”, “Has were answers to innocuous questions (“What’s questions and answers directly related to Charter scrutiny (“What did you use to allergic to any medications?”, “Are you on and “Are you in pain?”, to which he answered the bedroom”.) Mr. Butcher’s hand was was logically asked by EHS where to find from the bedroom by Sarah Brown and taken the hospital where it was reattached. [104] In keeping with the reasoning of Veidheis utterances of Mr. Butcher, and his responses questions, even if made in the presence of to Charter scrutiny. Similarly, whether or in authority, and was present when such consequence. The EHS paramedics were potentially inculpatory or exculpatory information merely treating him for grave injuries. Section 24(2) Charter Analysis [105] In the alternative, if the utterances obtained in violation of s. 10(b) of the Charter, either the presence of Sergeant MacGillivray and caution that had a deficient in informational component (no immediate legal advice) or a deficient implementational speak to a lawyer), or both, then s. 24(2) of this evidence, not its exclusion.
Page 40 to treat Mr. Butcher. She you understand?” to which Mr. say “I want my mom” and “Has his name, to which he replied hand” to which he replied “In the
to the EHS paramedics were either scrutiny (“Help me”, “I don’t want anyone called my mom”) or your name?”, “Nick”) or were his health and not subject to s. 10(b) cut off your arm”, “Saw”. “Are you any medications?”, “Are you dizzy?” “No” and “Where is your hand”, “In freshly amputated above the wrist. He his hand. His hand was then retrieved with Mr. Butcher by ambulance to J.A. in G.T.D., the spontaneous to legitimate and urgent medical Sergeant MacGillivray, are not subject not Sergeant MacGillivray was a person comments were made, is of no not asking questions in order to elicit from Mr. Butcher. They were reported by EHS paramedics were because they were made in Mr. Butcher received a s. 10(b) Charter mention of free and component (no ability to the Charter would favour admission of
[106] Any Charter-infringing state conduct arising paramedics would be at a low level of seriousness. Their focused on the medical emergency they predictable potential to elicit inculpatory Sergeant MacGillivray. There would be Butcher’s Charter-protected interests, and required to ensure that Mr. Butcher was counsel. Moreover, society has a significant interest in adjudicated on their merits. I am satisfied admissible even if they did arise from a s. 10(b) bring the administration ofjustice into disrepute. Section 10(b): Comments made by Mr. Butcher him from a card in the ambulance [107] The implementational component of complied with while Sergeant MacGillivray comments elicited from Mr. Butcher by Sergeant MacGillivray capacity were obtained in violation of s. 10(b). asked for his girlfriend’s “tombstone” information read from a card, this was in violation of s. 10(b). his own full name and date of birth did spontaneous and repeated comments of “I’m police to contact his mother or let him speak Sergeant MacGillivray and were not obtained aware of any other comments made by during this time period that the Crown seeks Section 24(2) Charter Analysis [108] With respect to the eliciting of Ms. Johnston’s Charter-infringing state conduct was relatively was in the care of paramedics and Sergeant MacGillivray a revised informational s. 10(b) instruction, but there implement. As noted earlier, the eliciting information had a serious impact on Mr. Butcher’s given the potential it carried for drawing apparent connection to dealing with the immediate injury. The significant societal interest in
Page 41 from the questioning by the questions were purely were dealing with, and did not have a answers found in the questions asked by little or no apparent impact on Mr. the paramedics themselves were not properly provided with his right to seeing murder charges that the utterances to the paramedics are breach. Their admission will not after his rights were read to s. 10(b) of the Charter was never was with Mr. Butcher. Therefore, any in an investigatory In particular, if Mr. Butcher was after his s. 10(b) rights were Merely asking Mr. Butcher for not violate s. 10(b). Mr. Butcher’s sorry” and repeated requests for the to his mother were not elicited by in violation of s. 10(b). I am not Mr. Butcher to Sergeant MacGillivray to introduce at trial. “tombstone” information, the serious. By this time, Mr. Butcher had had a chance to give had been no ability to of Ms. Johnston’s “tombstone” Charter-protected interests, out inculpatory remarks, and had no circumstances of Mr. Butcher’s seeing murder charges adjudicated on
their merits does not justify admitting would bring the administration ofjustice into Dr. Genevieve McKinnon: Voluntariness [109] Mr. Butcher concedes that any statements in the trauma room at the hospital while admissible and are not subject to a voluntariness scrutiny. Mr. Butcher agrees that no MacGillivray, was present in the trauma McKinnon:
THE COURT: Mr. Planetta, you McKinnon’s. So, just so everybody’s on today, as I understand it, I didn’t read anything Dr. McKinnon was saying. MR. PLANETTA: Yeah, when she, examination about the proximity of the police that she didn’t recall and so there wouldn’t, I guess on the applicant to prove that the police officers, that was police officers. We don’t have that. She doesn’t mean that there was a police officer THE COURT: And so... MR. PLANETTA: And so I can’t raise THE COURT: Okay. MR. PLANETTA: Because if it was she’s not a person of authority so. [110] Dr. McKinnon testified that while spontaneously said that his name was “Nick” messed up”. She observed that he was able instructions and she had no concerns about his that during her time with Mr. Butcher McKinnon’s evidence is admissible.
Page 42 this evidence. Admitting this statement disrepute. and s. 10(b) of the Charter made to Dr. Genevieve McKinnon he was being prepared for surgery are analysis or to s. 10(b) Charter police officer, including Sergeant room when he was speaking to Dr.
have not raised an objection to Dr. the same page when we leave here that there was an objection to what I asked her about the, on cross officers and I think her answer was I would have to, it would be said in the presence of said that she didn’t recall, but that present. that, I don’t think. said to Dr. McKinnon alone, of course, preparing Mr. Butcher for surgery he and that “I messed up, I really to comprehend and comply with her level of understanding. She said he was upset and tearful. All of Dr.
fl Probative Value versus Prejudicial Effect [111] In his brief of March 20, 2018, Mr. Butcher Probative Value v Prejudicial Effect As the gatekeeper of the evidence the Court must screen prejudicial effect which outweighs its probative Sgt. MacGillvray [sici has several prejudicial statements of probative value: • He refers to Mr. Buthcher [sic] as • He draws conclusions as to Mr. Butcher’s the jury; • He draws conclusions as to what Mr. Butcher apologizing, without being able to this end consider the passage from The prejudicial affect [sic] of the above probative value and it is the position of the admissible, they should be excluded from [112] In their brief of March 21, 2018, the Sergeant MacGillivray’s video statement is outweighed by their prejudicial effect. The The defence indicates in their brief of March statement prejudicial to Mr. Butcher. The Sgt. MacGillivary [sic] as outlined in the is irrelevant and should be vetted from the For greater specificity. the Crown identifies edited from Vd34 [sic] and vd3-7 [sic] (and flrther areas of concern): - Page 32 line 16-22 inclusive; & page - Page 36 halfway between line inclusive
- Page 36 half way between line inclusive.
- Page 43 halfway between line 4 and including line 2. - Page 52 lines 11 (beginning “conversation”).
Page 43 argues: out evidence which has a value. The KGB statement of with a minimal amount a “bad guy” repeatedly; guilt, which may be powerfiul to is conveying by purportedly give the context of the statement. To Hunter quoted above. statements far outweighs their limited defence that if found to be othenvise the evidence. Crown concedes that several aspects of should be edited as their probative value Crown states: 20, 2018, that there are areas of the Crown agrees that anything stated in bullet-list on page 6 of the defence brief statement before it goes to the jury. the following areas that ought to be of course the Crown is open to edit 33 lines 1-6. 7 (after the word “before”) until line 13
18 after “I’m sony” until line 21
after “he was sony” until page 44 up to at “it was”) — line 14 (ending at
c 1% - Page 75 line 8 — page 76 half “across”.
Once edited, it is the Crown’s position statement. There is no moral prejudice prejudice (i.e. the jury would be distracted In contrast, there is probative value to the most of the information Mr. Butcher provides, save evidence; “I’m sorry” is an important piece jury could use in their decision making. picture to the events that occurred that morning. important circumstantial information representation of the accused’s ability to immediately after his arrest, and the entirety occurred that morning. [113] In weighing the probative value of MacGillivray’s video statement with their statement should also be edited to excise (as • Page 32, lines 16-22; • Page 33, lines 1-6 • Page 36, line 7, following “before,” • Page 36, line 18, following “I’m sorry”; • Page 43, line 4, following “he was sony” • Page 52, line 11, starting at “It was.. .“, “have a conversation.”; and • Page 75, line 6, through to p.76, line Conclusion [114] The video statement of Sergeant MacGillivray Bradshaw test. It will be subject to editing. the comments elicited by Sergeant MacGillivray s. 10(b) right to counsel such that s. 24(2)
Page 44 way between line 20 up until the word
that there is nothing prejudicial in the due to bad character or any reasoning by the evidence in the statement). statement. The Crown’s position is the “I’m sorry”, is innocuous of circumstantial evidence that the The statement provides a complete Withholding innocuous or leaves the jury with an artificial communicate, his level of awareness of the circumstances of what certain comments found in Sergeant prejudicial effect, I agree that the video reflected in the companion transcript): through to line 13; through to page 44, line 2; through to line 14, ending with 20, ending with “that comes across”. is admissible under the Editing will include the removal of in violation of Mr. Butcher’s of the Charter favours those comments’
LI exclusion. Editing will also include the probative value is outweighed by the prejudicial effect.
Page 45 removal of the comments whereby the