R. v. McSweeney, 2020 ONCA 2

SECTION 10(B) - SECTION 24(2) - DETENTION - RIGHT TO COUNSEL

Background

Police obtained a warrant to search the appellant’s home, and seize a variety of electronic devices suspected to contain child pornography. When the police arrived at the appellant’s home they directed a number of potentially incriminating questions to the appellant, and not his wife, such as “can you direct me to a computer that might have child pornogaphy on it?” After searching the home for electronic devices, the main officer asked the appellant to give a recorded statement. He did not caution the appellant or inform him of his right to counsel, despite admitting at trial that at that point the appellant was the main suspect. During this conversation, the officer expressly stated that he believed the appellant was responsible for the child pornography. The appellant alluded to wanting to speak to someone who “could either help [him] or not help [him].” The officer did not inform the appellant of his right to counsel and insisted he was simply providing the appellant the opportunity “to tell [him] everything [he] should know” (“the first statement”). The appellant conceded that the child pornography was his; the officer thanked the appellant for “his honesty.” 

Following this first statement, the appellant was cautioned and informed of his right to counsel. He was subsequently taken to the police station where arrangements were made for him to speak to duty counsel. The officer from the first statement then interviewed the appellant. The appellant maintained that he wished to remain silent until the officer asked whether anyone else in the home was involved, to which the appellant responded “absolutely not” (“the second statement”). 

At trial, the accused alleged that his rights under sections 7 and 10(b) of the Charter had been violated in relation to statements he made to the police before and after his arrest. The trial judge found the statements to be admissible, and the accused was convicted for possession of child pornography and distribution of child pornography. The appellant submits that the trial judge erred in determining that he was not detained when he made his first statement. 

Issue 1: Was the Appellant Detained at the Time of the First Statement?

Section 10(b) Overview

Section 10(b) right to retain and instruct counsel without delay (and the right to be informed of this right) attach immediately upon detention. Detention can be physical or psychological, i.e. where a reasonable person would conclude they are not free to go and must comply with police (see R v Grant, 2009 SCC 32). This is an objective inquiry.

If a detained person chooses to exercise this right, they must be given reasonable opportunity to do so and police are prohibited from eliciting any incriminating evidence from the detainee until they have had a reasonable opportunity to consult with counsel (see R v Suberu, 2009 SCC 33). A detainee’s 10(b) right to counsel is intimately tied to their s. 7 right to silence. 

In her reasons for judgment, the trial judge cites Suberu and Grant but effectively engages in a subjective inquiry asking whether the appellant himself believed he was required to comply with the police. This is an error of law. 

In assessing whether an individual is being detained in the context of the execution of a search warrant, a key consideration is “whether the police were acting solely to ensure the integrity of the search or whether they were engaged in a focused investigation.” While police are entitled to separate the occupants of a home to protect the integrity of the search, there are limits to these powers: once the police have cleared the housed, they must have a continued basis for any on-going detention of the occupants (see R v Owen, 2017 ONCJ 731). Courts have generally found that where police question the occupants generally, and the questioning is not focused on the person’s involvement in a crime, the individual is not considered detained (see R v Munkoh, 2010 ONSC 2253). 

Application

The first consideration under Grant is the circumstances that gave rise to the police encounter. While the separation of the appellant, his wife and their children was justified to locate the electronic devices in question, the prolonged segregation was unnecessary. In fact, the wife asking an officer whether she could use the landline demonstrates her perception that she was not allowed to move freely within her home.

The second factor is the nature of the police conduct. The officer’s questioning of the appellant was accusatory at the outset. His questions were focused solely on the appellant and would lead a reasonable person to believe they were the primary suspect in the investigation. 

The ONCA concludes that the appellant was detained during the first statement. The focused and accusatory statements paired with the lengthy segregation would give a reasonable person the perception that they were obliged to comply. The officer was therefore required to inform the appellant of his right to counsel prior to obtaining the statement, which he did not do. The appellant’s s. 10(b) right was infringed.

Issue 2: was the second statement obtained in a manner that infringes a Charter right?

To determine whether a subsequent statement by an accused was obtained in a manner that infringed a Charter right, the court must determine whether this statement is part of the same transaction as the established breach (see R v Wittwer, 2008 SCC 33). This analysis asks whether the police were able to “sever” the two statements. The ONCA concludes that the s. 10(b) breach from the first statement, is temporally, contextually and causally connected to the second statement. The two statements were taken less than an hour apart by the same officer. The officer’s own words confirm this nexus when he tells the appellant this interview is a “continuation of an earlier statement.” Informing the appellant of his right to counsel and allowing him to speak to duty counsel at the station is insufficient to sever the taint of the initial s. 10(b) breach. The second statement therefore also infringes the appellant’s s. 10(b) right.

The ONCA concludes that the state conduct was wilful and had a serious impact on the appellant’s s. 10(b) rights. While there is a strong interest in the adjudication of the case on its merits, the Crown’s case is not “gutted” by the exclusion of the evidence. The ONCA, therefore, excludes the two statements under s. 24(2).

Strathy CJO, writing for the court, allows the appeal and orders a new trial.