Supreme Court

Supreme Court of Nova Scotia

Citation: R. v. Terrio, 2020 NSSC 88

Date: 20200306

Docket: CRH 485720

Registry: Halifax

Between:

Her Majesty the Queen

 

v.

 

Alexander Jesse Terrio

 

 

Judge:	The Honourable Justice Peter Rosinski
Heard:	February 28, 2020, in Halifax, Nova Scotia
Counsel:	Glen Scheuer, for the Crown Sarah White, for the Accused

 

 

By the Court:

Introduction

 

[1] Mr. Terrio is due to have a trial in September 2020 in response to an indictment alleging that he had possession for the purpose of trafficking various marijuana related substances contrary to s. 5(2) of the Controlled Drugs and Substances Act [“CDSA”].

[2] At his trial, the Crown wishes to introduce evidence of:

1.                 his statements made to police officers on April 17, 2018; as well as

2.                 documents located by police in a sealed safe that had been in the business premises of the Atlantic Compassion Club Society [”ACCS”], AKA “Cana-Clinic”, a cannabis products dispensary located in Dartmouth, Nova Scotia.

[3] Mr. Terrio [“AJ”] disputes the admissibility of these items. These are my reasons why I conclude that his statements and actions are not admissible, and the documents are admissible only under s. 30 of the Canada Evidence Act.

Background

[4] On the voir dire I heard evidence from the following police officers:

•               Constable [“Cst.”] Sym Dewar (with Halifax Regional Police [“HRP”] since 2016 and a patrol officer in 2018);

•               Sargent [“Sgt.”] Kris Barr (supervisor of patrol officers in the East division of HRP in 2018);

•               Detective Constable [“DC”] Shaun Carvery (with HRP for 19 years, and in 2018 a member of the General Investigative Services-GIS, which is a unit dedicated to serious ongoing investigations such as robberies, break and enters etc.); and

•               Detective Constable [“DC”] Parker McIsaac (with HRP since 2006, and in 2018 a member of the integrated Guns and Gang unit, which tends to focus on illegal drug-related investigations, including firearms and gangs).

[5] I found each of them testified truthfully and reliably. I accept their evidence.

[6] Their evidence establishes the following facts:

The security alarm at ACCS premises in Dartmouth was triggered around 1:00 AM April 17, 2018. HRP dispatched from the patrol unit, Constables Dewar and Carter to the premises – Constables Carter and Dewar arrived followed shortly thereafter by Sgt. Barr. A visual inspection revealed an open swinging door to the premises. Not long after an individual dressed all in black exited the premises through that door. He identified himself as Jesse. He told Sgt. Barr he did not know who owned the business. The officers were uncertain whether he was involved in the break and enter or not, and he carried no identification. He suggested that he was security for the premises and had been robbed by two people. They arrested him and placed him into Constable Carter’s police vehicle. The officers awaited the arrival of the K-9 unit which typically first would enter the premises. The K-9 unit arrived shortly thereafter, and they all entered the premises. It was patently obvious that the premises were a so-called privately operated “cannabis dispensary”.[1]

[7] Each of the officers was asked whether they believed that the cannabis dispensary was “illegal”.

[8]  Cst. Dewar testified that he was aware of a number of them around HRM but was not familiar with the situation in Dartmouth regarding such private dispensaries generally, since he was on loan that day from his regular posting in Spryfield, Halifax. He did understand them to be “illegal businesses”, but noted they were not looking into the illegality of the business on April 17, 2018. He did not know if there was any police policy regarding enforcement practices regarding such dispensaries.

[9] Sgt. Barr did contact his supervisor, Staff Sgt. Mike Willett and testified that “we had a call in to the drug unit to write a warrant”. When asked, he advised that he had “little knowledge” of cannabis dispensaries, but he did have a general knowledge of the CDSA. He didn’t recall whether at that time he knew that cannabis sales from such dispensaries were “illegal”. Nevertheless, he did concede that he told AJ when speaking to him on the telephone that they would be getting a drug warrant to search the premises.

[10]         DC Carvery testified that he did not know for certain whether it was illegal at that time to operate a cannabis dispensary.

[11]         There are several reasons for the officers’ confusion about whether the cannabis dispensary was conducting business “illegally”.[2]

[12]          On and after October 17, 2018, subject to provincial or territorial restrictions, adults 18 years of age or older were legally entitled to possess up to 30 g of legal cannabis, dried or equivalent in non-dried form in public places, and share up to 30 g of legal cannabis with other adults; buy dried or fresh cannabis and cannabis oil from a provincially licensed retailer (in provinces and territories without a regulated retail framework, individuals are able to purchase cannabis online from federally licensed producers); grow from licensed seed or seedlings, up to four cannabis plants per residence for personal use; make cannabis products, such as food and drinks at home as long as organic solvents are not used to create concentrated products.

[13]         In addition, many municipalities have business bylaws applicable to such businesses.

[14]          In his unreported May 30, 2018, oral decision in HRM v. 3065468 Nova Scotia Ltd. and Coastal Cannapy Medical Dispensary Inc. (Hfx. No. 476111 – written decision released September 25, 2018), Justice Chipman was asked (in a May 11, 2018, filed Application in Chambers) for statutory injunctive relief by HRM as against that cannabis dispensary operating at 2411 Agricola St., Halifax, as being in non-compliance with HRM bylaws (namely, Halifax Peninsular Land Use Bylaw). In its Notice of Contest, Coastal Canappy requested:

an interim injunction suspending, staying, exempting from and restraining the enforcement of the bylaws against the medical dispensary at the subject property and their servants, agents and employees;

an interim injunction suspending, staying, exempting from and restraining the enforcement of the Controlled Drugs and Substances Act (“CDSA”) against the medical dispensary at the Subject Property and their servants, agents, employees and patients;

[15]         Justice Chipman concluded that the injunctive relief sought by HRM  (but not Coastal Cannapy) was appropriate, particularly given that the Respondents had already pled guilty in Provincial Court in December 2017 to a breach of the Bylaw, at which time the court imposed a $13,500 fine, and ordered the dispensary to:

bring the land into compliance with the bylaw: not selling or dispensing marijuana or permitting the sale or dispensing marijuana without first obtaining a Development Permit from the Halifax Regional Municipality.

[16]         Cst. Dewar testified that they believed that the alarm company had no contact person regarding the business.

[17]         The officers saw the premises had significant CCTV cameras and believed that the footage would reveal the break-and-enter and robbery Jesse referenced, and perhaps a description of the offenders.

[18]         Given what he saw, Sgt. Barr spoke with his supervisor Staff Sgt. Mike Willett to apprise him of the circumstances. Sgt. Barr understood that the drug unit was to be alerted that they should consider creating an information to obtain a search warrant [“ITO”] for the premises.

[19]         While inside the premises, Sgt. Barr found what appeared to be a staff room. Therein, noted on a plainly visible whiteboard, inter alia, one can see in marker handwritten:

Important phone numbers

Theo – General Manager 1-604-762-2997

AJ (Manager) 902-441-2353

Max (Manager 902-574-0677

Lawyer: Jack Lloyd 1-647-235-3972

Human Resources Department Sara) (403) 463-4020

[20]         He called 902-441-2353, and a male answered to the name AJ. Sgt. Barr believes he likely told him that he got his telephone number as a result of what he saw on the whiteboard in the staff room.

[21]          Sgt. Barr briefly described the circumstances to him and requested his assistance in retrieving the surveillance footage. Sgt. Barr also advised him that the police would be requesting a drug search warrant for the premises and were holding the scene for that purpose. Sgt. Barr obtained AJ’s name, date of birth and address from him. He estimated the telephone conversation was less than two minutes and that during that time “[AJ] was cooperative”.

[22]         AJ confirmed to Sgt. Barr that he was the manager and that he could come to the premises to help retrieve the video surveillance footage. He also confirmed that the premises did employ a security guard named Jesse. Sgt. Barr examined what appeared to be a logbook for employees and noted the name “Jesse” thereon, so they determined he should be released from custody.

[23]         Cst. Dewar remained on site to maintain security of the premises.[3]

[24]         Sgt. Barr, who was there as temporary “backup” to the patrol officers, left the scene shortly thereafter.

[25]         Around 2:00 AM, AJ showed up at the premises and said to Cst. Dewar: “you guys called me – I’m here”.

[26]         Cst. Dewar described what happened next. He and AJ entered the premises. AJ led him right to where the office was – he clearly knew his way around the security system and was able to unlock the CCTV video surveillance files, which required password access, and was able to play the videotapes back and ultimately make a copy for the Constable. He also knew which cameras would give which views of the premises. Cst. Dewar also identified the accused in open court as the same person who answered to the name “AJ”.

[27]         A review of the CCTV footage revealed that in fact Jesse had been confined and robbed of his phone and wallet by two individuals who broke in.

[28]         DC Carvery began his shift on April 17, 2018, at 7:00 AM. He was tasked with investigating the break and enter and robbery at the ACCS premises. On his Incident Activity Form, he referenced the Incidents he was to investigate as “18 – 56159/56218”. Notably on the ITO sworn by DC McIsaac in support of a search warrant for drugs at the ACCS premises, consequent to which was issued a search warrant on April 17, 2018, the HRP file number was listed as “18 – 56218”.

[29]         DC Carvery attended at the ACCS premises later on in the morning of April 17 as a representative of the GIS unit. Tasked with investigating the break and enter and robbery, he arrived while patrol officers were still there securing the scene. He believed they were doing so for the Forensic Identification Services (FIS) officers. His concern was to identify who are the owners of the premises and therefore the putative victim. There was still no information available to the police regarding who were the owners of the premises.

[30]         He located AJ’s name and telephone number on the whiteboard. He called the number and someone who identified himself as “Terrio” and a “manager” of ACCS in Dartmouth answered. AJ also stated words to the effect that: “I’m the manager. Question – who are the owners? I don’t know – that’s above my pay grade”.

[31]         DC Carvery then had contact with someone in the Purdy’s Wharf building in downtown Halifax who was listed as a local contact for the business. He got no answer to his question, “who are the owners?” of the premises purportedly operated by ACCS.[4]

[32]         He consequently closed his investigative file.

[33]         DC McIsaac wrote the ITO for the drug search of the premises. A warrant was issued around noon time and executed at 2:00 PM on April 17, 2018.

[34]         Thereafter, the officers were looking for someone with the business to whom they could return the premises, as they were not able to fix the broken back door, and also for someone to arrest in relation to the illegal sale of cannabis-related products.

[35]         After the search warrant was executed, he tried the various numbers on the whiteboard without success. He then sent a text message to AJ at the number listed. Then he called AJ, and AJ answered. He advised him that he was a HRP police officer, and that they were investigating the premises for violations of s. 5(2) CDSA, possession for the purpose of trafficking, and were seeking to get a combination for the office safe so they would not have to destroy the safe in order to get inside. AJ stated he did not have the combination numbers for the digital safe. He also advised AJ that upon his arrival at the premises he would be arrested for, but released in relation to, those charges.

[36]         When AJ showed up at the premises, DC McIsaac was still present, and observed him. He testified that AJ told him that he had spoken to a lawyer in relation to the police presence in the premises – thereafter, he was arrested, cautioned, given his Charter of Rights advisements, and released on an Appearance Notice at that time. The parties agreed that AJ was arrested at 4:11 PM April 7, 2018.

The Voluntariness Issue

[37]         As a general rule, if the Crown wishes to rely on any statements made by a person to persons in authority as evidence against that person in any criminal or quasi-criminal prosecution, the burden is on the Crown to prove beyond a reasonable doubt that such statements made were given “voluntarily” – R. v. Oickle, 2000 SCC 38.

[38]         I should point out that the Defence is not arguing that AJ was detained at any time before he was arrested – and there is no evidence to suggest that he was detained. Therefore, AJ was not entitled to his Charter of Rights’ advisement at any time beforehand.

[39]         The Defence position is that AJ was “so obviously” a suspect in the drug matter from almost the beginning of the police investigation, when he was first called by Sgt. Barr. The police were standing in the middle of an illegal cannabis-related products dispensary. Anyone working there could arguably be criminally responsible for having possession of the illegal drugs for the purpose of trafficking.

[40]          It must be borne in mind that s. 2 of the CDSA defines “traffic” as:

means, in respect of a substance included in any of Schedules 1 to 5,

a)      to sell, administer, give, transfer, transport, send or deliver the substance,

b)      to sell an authorization to obtain the substance, or

c)      to offer to do anything mentioned in paragraph (a) or (b).

[41]         Notably “sell” is also defined, as: “includes, offer for sale, exposed for sale, having possession for sale and distribute, whether or not the distribution is made for consideration.

[42]          Although the police personnel present at the time were focused on the break and enter/robbery investigation, they had to have had an inkling that AJ could be charged for having possession of cannabis and cannabis-related products for the purpose of trafficking. Therefore, his counsel says he should have been cautioned before Sgt. Barr, or anyone else later, asked him any questions or requested his assistance.

[43]         His counsel cites the following cases in support of his position:

R v Worrall, [2002] O.J. No. 2711 per Watt J. (as he then was);

R v Paterson, 2017 SCC 15

R v Goulding, 2017 ONSC 4335, which references R v MD, 2012 ONCA 894

R v Patrois, 2018 ONSC 1349

R v Singh, 2007 SCC 48

R v Garnier, 2017 NSSC 338 (conviction on appeal)

[44]         The Crown cited:

R v Hicks, [1990] 1 SCR 120

R v Tan, 2014 BCCA 9 (at para. 99)

R v AD, 2017 BCSC 2065 (at para. 9)

R v Gauthier, [1977] 1 SCR 441 (at pg. 448)

R v Oickle, 2000 SCC 38

R v Daley, 2015 ONSC 7164 (para. 45)

R v Whittle, [1994] 2 SCR 914

R v Rothman, [1981] 1 SCR 640 (as cited in Oickle at para. 66)

[45]         In summary, the Defence argument is that for a court to conclude that it is satisfied beyond a reasonable doubt of the “voluntariness” of a statement given by any person to a “person in authority”, all other things being equal, the moment a reasonably competent investigator reasonably would suspect (that is, on an objectively viewed basis of the information available to them) that the statement-giver may realistically be or become an accused person, they should be deemed to have been a “suspect” from that point forward, and such  person must be given the police caution (right to silence warning), otherwise the statement will not be admissible because it is not a “voluntary” statement, since the suspect has not been given an opportunity to make a meaningful choice whether to speak to police not.

[46]         Therein, the Defence presumes that the giving of the police caution is an essential prerequisite to a court concluding statements have been given “voluntarily”.

[47]         The older jurisprudence says not necessarily so: for example, see: R. v. Boudreau, [1949] SCR 262; R. v. Price, (1931) 55 CCC 206 (NBCA); R. v. Turvey, (1971), 2 CCC (2d) 401 (NSCA); R. v. Boisjoly, (1955) 115 CCC 264 (Que. CA). However, the jurisprudence has also evolved, particularly in light of the Charter of Rights.

[48]         While the following references to Supreme Court of Canada decisions are lengthy, I believe it is helpful to review them in some detail, using the words of the court itself, to allow a proper appreciation of the legal framework regarding the “right to silence”.

[49]         An example can be found in R. v. Hicks, (1988) OAC 28 118, which was affirmed in a brief endorsement of Justice Lacourciere’s reasons, [1990] 1 SCR 120.

[50]         The facts were that Mr. Hicks’s vehicle was identified as involved in a collision with a bicyclist who died as a result. Through his lawyer’s communications, his vehicle was located. An examination thereof strongly suggested that it was the vehicle that collided with the bicyclist. The next day, he voluntarily attended with his lawyer at the police station, and then attended in an interview room with two police officers. At that time, he was only a suspect and not detained. The trial judge found the police involvement was still at the investigative stage. Mr. Hicks advised the officers he did not wish to give a statement. However, an officer asked him if anyone other than himself had been driving his vehicle on the date in question – Mr. Hicks responded in the negative. Thereafter, the officers immediately left the interview room and advised his lawyer that they were going to charge Mr. Hicks with failure to remain at the scene of an accident. His counsel spoke with Mr. Hicks and indicated their intention to leave the premises. Mr. Hicks was arrested and charged at that point with a criminal offence.[5]

[51]         On appeal, Justice Lacourciere stated[6]:

THE RIGHT TO REMAIN SILENT

In R. v. Esposito, supra, Martin J.A., delivering the judgment of the court, described the common law right of an accused or suspect to remain silent as "deeply rooted in our legal tradition" (at p. 94):

The right of a suspect or an accused to remain silent is deeply rooted in our legal tradition. The right operates both at the investigative stage of the criminal process and at the trial stage. In Canada, save in certain circumstances, a suspect is free to answer or not to answer questions by the police. We say that he has a right to remain silent because there is no legal obligation upon him to speak: see Rothman v. The Queen, [1981] 1 S.C.R. 640 at p. 683, 59 C.C.C. (2d) 30 at p. 64, 121 D.L.R.(3d) 578, per Lamer J.

A police officer, when he is endeavouring to discover whether or by whom an offence has been committed, is entitled to question any person, whether suspected or not, from whom he thinks that useful information can be obtained. Although a police officer is entitled to question any person in order to obtain information with respect to a suspected offence, he, as a general rule, has no power to compel the person questioned to answer. Moreover, he has no power to detain a person for questioning, and if the person questioned declines to answer, the police officer must allow him to proceed on his way unless he arrests him on reasonable and probable grounds.

At p. 95, Martin J.A. continued:

If, however, the suspect chooses to answer questions put to him by the police, his answers are admissible if the prosecution establishes that his statements were voluntary.

Martin J.A. made it clear that the police are entitled to question any person, whether suspected or not, from whom they think that useful information concerning the commission of a crime can be obtained.

…

In R. v. Grafe (1987), 60 C.R. (3d) 242, this Court allowed a Crown appeal from an acquittal entered by a judge of the Provincial Court (Criminal Division) who had ruled that police officers asking the name of a pedestrian whose behaviour appeared suspicious constituted a violation of that person's rights under s. 7 of the Charter. The answer given by the pedestrian was a misidentification, but was ruled inadmissible by the trial judge, on a charge of fraudulent personation, on the basis that its admission would bring the administration of justice into disrepute. Krever J.A. delivering the judgment of the court, (Martin, Tarnopolsky and Krever JJ.A.) said at p. 246:

With great respect for the trial judge, I do not think that the circumstances of this case involve the application of s. 7. No interference with the liberty or security of the respondent took place in his first encounter with the police officer. The law has long recognized that, although there is no legal duty, there is a moral or social duty on the part of every citizen to answer questions put to him or her by the police, and in that way to assist the police: see, for example, Rice v. Connolly, [1966] 2 Q.B. 424, [1966] 3 W.L.R. 17, [1966] 2 All E.R. 649 at 652, per Lord Parker C.J. Implicit in that moral or social duty is the right of a police officer to ask questions even, in my opinion, when he or she has no belief that an offence has been committed. To be asked questions in these circumstances cannot be said to be a deprivation of liberty or security.

…

Appellant's counsel relying in part on the dictum in Grafe, supra, quoted above, submits that the right to silence at the investigative stage is not a right guaranteed by the Charter, in that the mere asking of a question does not result in a deprivation of liberty or security of the person.

The appellant further submits that the statement of Lamer J. in Rothman, supra, at pp. 683-84, relied on by Martin J.A. in Esposito, supra, at p. 94 is a proper characterization of the right to silence. I repeat it:

In Canada the right of a suspect not to say anything to the police is not the result of a right of no self-incrimination but is merely the exercise by him of the general right enjoyed in this country by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things, unless obliged to otherwise by law. It is because no law says that a suspect, save in certain circumstances, must say anything to the police that we say that he has the right to remain silent; which is a positive way of explaining that there is on his part no legal obligation to do otherwise. His right to silence here rests on the same principle as his right to free speech, but not on a right to no self-crimination.

[Footnote omitted.]

…

…The original admission excluding the possibility that another driver may have been involved in the accident was improperly ruled inadmissible; therefore, the subsequent utterances were untainted by the previous answer and were obtained properly after the respondent's arrest. I would accordingly allow the appeal, quash the acquittal and direct a new trial.

[My italicization added throughout]

[52]         I respectfully suggest that the facts in Hicks are distinguishable, and the reasoning in Hicks is not binding regarding the category of persons which courts conclude are interviewed while “suspects”, such as in the circumstances of AJ.

[53]         It is important to maintain a distinction between, and assess when, persons who are initially interviewed as “innocent-bystander witnesses” objectively become a realistic “suspect”.

[54]         At the far end of that spectrum, for persons who are detained and in custodial interrogation, the test for voluntariness and a breach of the “right to silence” under s. 7 of the Charter are functionally equivalent such that where a statement has satisfied the voluntariness requirement, an alleged breach of the “right to silence” cannot succeed: R v Singh, 2007 SCC 48. However, notably therein the court also stated:

21 Although historically the confessions rule was more concerned with the reliability of confessions than the protection against self-incrimination, this no longer holds true in the post-Charter era. Both the confessions rule and the constitutional right to silence are manifestations of the principle against self-incrimination. The principle against self-incrimination is a broad concept which has been usefully described by Lamer C.J. as a "general organizing principle of criminal law" from which a number of rules can be derived: R. v. Jones, [1994] 2 S.C.R. 229, at p. 249. Similarly, Iacobucci J. in R. v. White, [1999] 2 S.C.R. 417, described the principle against self-incrimination in these words:

The jurisprudence of this Court is clear that the principle against self-incrimination is an overarching principle within our criminal justice system, from which a number of specific common law and Charter rules emanate, such as the confessions rule, and the right to silence, among many others. The principle can also be the source of new rules in appropriate circumstances. Within the Charter, the principle against self-incrimination is embodied in several of the more specific procedural protections such as, for example, the right to counsel in s. 10(b), the right to non-compellability in s. 11(c), and the right to use immunity set out in s. 13. The Charter also provides residual protection to the principle through s. 7. [Emphasis added; para. 44.]

22 Mr. Singh concedes that his statements were obtained in conformity with the common law confessions rule -- in other words, that they were voluntary. His application to exclude his statements from the evidence is grounded, rather, in the residual protection afforded to the right to silence under ss. 7 and 24 of the Charter. These provisions read as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

It is clear that Mr. Singh's liberty interest, protected under s. 7 of the Charter, is engaged by the potential admission of his incriminating statements in evidence at his trial for second degree murder.

23 Since voluntariness is conceded, the scope of the common law confessions rule and its application to the facts of this case are not strictly in issue on this appeal. However, a question is raised concerning the interplay between the confessions rule and the Charter right to silence. More specifically, Mr. Singh takes the position that the Court of Appeal erred in law in stating at para. 19 that "[i]n the context of an investigatory interview with an obvious person in authority, the expansive view of the confession rule in Oickle may leave little additional room for s. 7 but there is no particular utility in a double-barrelled test of admissibility." It therefore becomes necessary to examine the various components of the confessions rule to determine how they relate to the right to silence.

24 As we shall see, there is considerable overlap between the inquiry into voluntariness and the review under s. 7 of the Charter in respect of an alleged breach of the right to silence. This should come as no surprise. First, the right to silence is not a concept that was newly born with the advent of the Charter. The right long pre-dated the Charter and was embraced in the common law confessions rule. Second, in Hebert, this Court's recognition of the residual protection afforded to the pre-trial right to silence under s. 7 of the Charter was largely informed by the confessions rule and the scope of the protection it provides to an individual's right to choose whether or not to speak to the authorities. Third, this Court's expansive restatement of the confessions rule in Oickle, in turn, was largely informed by a consideration of Charter principles, including the right to silence as defined in Hebert.

25 I therefore read the Court of Appeal's comment on the interplay between the confessions rule and the s. 7 right to silence as a recognition of this considerable overlap. Indeed, as I will explain, in the context of a police interrogation of a person in detention, where the detainee knows he or she is speaking to a person in authority, the two tests for determining whether the suspect's right to silence was respected are functionally equivalent. (The symmetry between the confessions rule and related Charter rights in so far as the requisite mental capacity is concerned was previously recognized in R. v. Whittle, [1994] 2 S.C.R. 914, where the Court held that the operating mind test at common law fully answers the mental capacity requirement for an effective waiver of the right to counsel and the mental capacity necessary to make an active choice with respect to the right to silence.) Therefore, in the context of an interrogation of a detainee by an obvious person in authority, the Court of Appeal was correct to question the utility of a "double-barrelled test of admissibility". In addition, because the Crown bears the burden of establishing voluntariness beyond a reasonable doubt and exclusion is automatic if the test is not met, the common law affords greater protection to the accused and there is no point in conducting a distinct s. 7 inquiry. However, as I will explain, the residual protection afforded to the right to silence under s. 7 of the Charter will be of added value to the accused in other contexts.

26 I will now examine the nature and scope of the confessions rule, particularly in respect of its commonality with the right to silence.

3.2 The Confessions Rule

27 As stated earlier, the right to silence, although now constitutionally entrenched, long pre-dates the Charter. The right to silence as a common law principle was recently affirmed by this Court in R. v. Turcotte, [2005] 2 S.C.R. 519, 2005 SCC 50. Stated broadly, the common law right to silence simply reflects the general principle that, absent statutory or other legal compulsion, no one is obligated to provide information to the police or respond to questioning. At para. 41, Abella J., writing for the Court, reiterated Lamer J.'s defining statement of the right in Rothman v. The Queen, [1981] 1 S.C.R. 640:

In Canada the right of a suspect not to say anything to the police ... is merely the exercise by him of the general right enjoyed in this country by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things, unless obliged to do otherwise by law. It is because no law says that a suspect, save in certain circumstances, must say anything to the police that we say that he has the right to remain silent, which is a positive way of explaining that there is on his part no legal obligation to do otherwise. [Footnotes omitted; p. 683.]

28 What the common law recognizes is the individual's right to remain silent. This does not mean, however, that a person has the right not to be spoken to by state authorities. The importance of police questioning in the fulfilment of their investigative role cannot be doubted. One can readily appreciate that the police could hardly investigate crime without putting questions to persons from whom it is thought that useful information may be obtained. The person suspected of having committed the crime being investigated is no exception. Indeed, if the suspect in fact committed the crime, he or she is likely the person who has the most information to offer about the incident. Therefore, the common law also recognizes the importance of police interrogation in the investigation of crime.

29 Of course, the information obtained from a suspect is only useful in the elucidation of crime if it can be relied upon for its truth -- hence the primary reason for the confessions rule, the concern about the reliability of confessions. The common law confessions rule is largely informed by the problem of false confessions. As noted in Oickle, "[t]he history of police interrogations is not without its unsavoury chapters" (para. 34). The parameters of the rule are very much tailored to counter the dangers created by improper interrogation techniques that commonly produce false confessions: see Oickle, at paras. 32-46. Further, a confession is a very powerful item of evidence against an accused which, in and of itself, can ground a conviction. One of the overriding concerns of the criminal justice system is that the innocent must not be convicted. Because it is recognized that involuntary confessions are more likely to be unreliable, the confessions rule requires proof beyond a reasonable doubt of the voluntariness of any statement obtained from an accused by a person in authority before it may be admitted in evidence, so as to avoid miscarriages of justice.

30 Of course, not every involuntary confession is false. While the confession rule's primary concern is with reliability, it is well established that voluntariness is a broader concept. As this Court stated in Oickle (at para. 70): "Wigmore perhaps summed up the point best when he said that voluntariness is 'shorthand for a complex of values': Wigmore on Evidence (Chadbourn rev. 1970), vol. 3, s. 826, at p. 351." These values include respect for the individual's freedom of will, the need for law enforcement officers themselves to obey the law, and the overall fairness of the criminal justice system: see Oickle, at paras. 69-70, citing Blackburn v. Alabama, 361 U.S. 199 (1960), at p. 207.

31 Therefore, the notion of voluntariness is broad-based and has long included the common law principle that a person is not obliged to give information to the police or to answer questions. This component of the voluntariness rule is reflected in the usual police caution given to a suspect and the importance attached (even before the advent of the Charter) to the presence of a caution as a factor in determining the voluntariness of a statement made by a person under arrest or detention: see Boudreau v. The King, [1949] S.C.R. 262; R. v. Fitton, [1956] S.C.R. 958; R. v. Esposito (1985), 24 C.C.C. (3d) 88 (Ont. C.A.). A common form of the police caution given to a person who has been charged with an offence is the following: "You are charged with ... Do you wish to say anything in answer to the charge? You are not obliged to say anything but whatever you do say may be given in evidence." Therefore, the police caution, in plain language, informs the suspect of his right to remain silent. Its importance as a factor on the question of voluntariness was noted by this Court as early as 1949 in Boudreau:

The fundamental question is whether a confession of an accused offered in evidence is voluntary. The mere fact that a warning was given is not necessarily decisive in favour of admissibility but, on the other hand, the absence of a warning should not bind the hands of the Court so as to compel it to rule out a statement. All the surrounding circumstances must be investigated and, if upon their review the Court is not satisfied of the voluntary nature of the admission, the statement will be rejected. Accordingly, the presence or absence of a warning will be a factor and, in many cases, an important one. [Emphasis added; p. 267.]

32 Although the confessions rule applies whether or not the suspect is in detention, the common law recognized, also long before the advent of the Charter, that the suspect's situation is much different after detention. (As we shall see, the residual protection afforded to the right to silence under s. 7 of the Charter is only triggered upon detention.) …

33 … Therefore, if the detainee has exercised his s. 10 Charter right to counsel, he will presumably have been informed of his right to remain silent, and the overall significance of the caution may be somewhat diminished. Where the suspect has not consulted with counsel, however, the police caution becomes all the more important as a factor in answering the ultimate question of voluntariness.

34 …As we can see from the foregoing discussion, the right to silence, as a facet of the principle against self-incrimination, was already very much a part of the common law confessions rule when the Charter came into force in 1982. Any remaining uncertainty as to whether the confessions rule embraced the right to silence was clearly dispelled by this Court in Hebert. The Court recognized that the right to silence formed part of the "basic tenets of our legal system" and hence became constitutionalized under s. 7 (pp. 162-63). In defining the scope of the Charter right to silence, McLachlin J. (as she then was) focussed in large part on related rules at common law, including the confessions rule. In reviewing the scope of the common law confessions rule, she explained (at pp. 166-67) that the jurisprudence on confessions revealed two persistent themes. The first related to the exercise of free will in choosing whether to speak to police or remain silent and the second to ensuring that reception of the impugned statement would not result in unfairness or bring the administration of justice into disrepute. She further explained how, in turn, this broader concept of the rule forms part of our fundamental notion of procedural fairness and how it also reflects the view that the rationale for the confessions rule "goes beyond the exclusion of unreliable statements and extends to considerations of whether reception of the statement will be unfair or tend to bring the administration of justice into disrepute" (p. 167). The question posed by McLachlin J. following this historical review of the confessions rule was whether this broader notion of voluntariness "should prevail in the post-Charter era" (p. 173). She concluded that it should.

35  Ten years later, this Court in Oickle made express reference to the analysis in Hebert and embraced this modern expansive view of the confessions rule which, significantly for our purposes, clearly includes the right of the detained person to make a meaningful choice whether or not to speak to state authorities: see paras. 24-26. …Iacobucci J. then reviewed the various components of the contemporary confessions rule, stressing, of course, that "[t]he application of the rule will by necessity be contextual" and that "all the relevant factors" must be considered (para. 47). He went on to describe the more common circumstances that vitiate the voluntariness of a confession using the well-known headings: (a) threats or promises, (b) oppression, and (c) operating mind. In keeping with the broader modern approach to the confessions rule, he also added a final consideration in determining whether a confession is voluntary or not -- the police use of trickery to obtain a confession that would "shock the community" (para. 66). He explained that: "Unlike the previous three headings, this doctrine is a distinct inquiry. While it is still related to voluntariness, its more specific objective is maintaining the integrity of the criminal justice system" (para. 65). Finally, it is noteworthy that, in summarizing the parameters of the confessions rule, Iacobucci J. made express reference to the right to silence as a relevant facet of the rule:

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

36  On the question of voluntariness, as under any distinct s. 7 review based on an alleged breach of the right to silence, the focus is on the conduct of the police and its effect on the suspect's ability to exercise his or her free will. The test is an objective one. However, the individual characteristics of the accused are obviously relevant considerations in applying this objective test.

…

39 Further elaboration is required here on the warning that it would be "a mistake to assume one subsumes the other entirely". For the reasons I have already expressed, the confessions rule effectively subsumes the constitutional right to silence in circumstances where an obvious person in authority is interrogating a person who is in detention because, in such circumstances, the two tests are functionally equivalent. However, this does not mean that the residual protection afforded to the right to silence under s. 7 of the Charter cannot supplement the common law. Professors Paciocco and Stuesser explain this interrelationship between the common law rule and s. 7 succinctly as follows:

…

Although in most cases the common law will therefore provide greater protection, there will be cases where section 7 gives added value to the accused. As has already been seen, section 7 is violated if the accused is cross-examined about why he did not give a statement to the police. Moreover, as described below, section 7 protects the right to silence, and although it is contentious, [note that it is this area of contention that is resolved in this appeal] it may be that a breach of that constitutional right can result in the exclusion of otherwise admissible statements; …

40 As noted by Professors Paciocco and Stuesser, the residual protection afforded to the right to silence under s. 7 has been recognized in a number of circumstances. Section 7 may be found to have a role to play in yet other contexts not mentioned in the passage excerpted above…

[My italicization added]

[55]         More recently, these issues were canvassed in R. v. Paterson, 2017 SCC 15:

The judgment of McLachlin C.J. and Abella, Karakatsanis, Wagner and Brown JJ. was delivered by Brown J.

I. Introduction

This appeal raises three distinct issues: (1) the applicability of the common law confessions rule to statements tendered in a voir dire under the Canadian Charter of Rights and Freedoms; …

III. Analysis

Voluntariness

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

15 The Court has also recognized, however, that concern for the untrustworthiness of involuntary confessions does not entirely capture the rationale for excluding evidence caught by the confessions rule. In R. v. Hebert, [1990] 2 S.C.R. 151, the rule was said to rest on fundamental notions of trial fairness and (at p. 173) "the idea that a person in the power of the state's criminal process has the right to freely choose whether or not to make a statement to the police", coupled with a "concern [for] the repute and integrity of the judicial process". Those same concerns, the Court added (at p. 175), underlay the privilege against self-incrimination, and supported recognition of a detainee's right to silence as a principle of fundamental justice under s. 7 of the Charter. "Voluntariness" then, as a concept designed to limit the scope of police investigative techniques, has been broadly associated with the principle that the Crown must, to maintain the repute and integrity of the trial process, establish guilt without the assistance of the accused (Hodgson, at para. 23, citing the Report of the Federal/Provincial Task Force on Uniform Rules of Evidence (1982), at p. 175).

16  The foregoing explanations for the confessions rule are not neatly encapsulated and, as the Court has observed more than once, "a rationale for the confessions rule extending beyond trustworthiness has not always been easy to locate (R. v. S. (R.J.), [1995] 1 S.C.R. 451, at para. 73; Hodgson, at para. 23). It suffices here to observe that the Crown must prove the voluntariness of an accused's statement before it can rely upon that statement at trial as supporting a finding of guilt, and that this rule applies to ensure trial fairness and to preclude conviction of an accused based upon compelled and as such inherently unreliable evidence. While, therefore, the rule's application has been confined to trial, the appellant says that its "broad purpose" should operate to require the Crown to prove the voluntariness of such statements for any purpose - "even for the limited purpose of establishing reasonable grounds for a search" in a voir dire. To confine the judicial inquiry into the voluntariness of a statement to trial evidence, he says, allows police to take "unfair ... advantage" of "mentally ill and disabled" persons, thereby "engender[ing] systemic imbalance against those in need of the highest legal protections". Further, the appellant views any evidence assisting the Crown in any way as "incriminating", such that a statement which justifies a search ought to be shown to have been voluntarily made. It follows, he says, that unreliable evidence such as an involuntary confession cannot be relied upon to justify a search.

17 As to the procedure to be followed, the appellant says that the voluntariness of a statement - such as the appellant's statement regarding the roaches - leading to a police search should be determined prior to the voir dire on the lawfulness of the search. Alternatively, he says, a blended voir dire could occur. In this case, since neither the trial judge nor counsel addressed the voluntariness of the appellant's statement, and since there is a possibility that his statements could have been ruled involuntary, he says a new trial is necessary.

18 In my view, the confessions rule should not be expanded as proposed by the appellant. More particularly, for the following reasons, the confessions rule should not apply to statements tendered in the context of a voir dire under the Charter.

…

21 In sum, admitting a statement by an accused for the purpose of assessing the constitutionality of state action, as opposed to the purpose of determining the accused's guilt, does not engage the rationale for the confessions rule. To apply the rule to evidence presented at a Charter voir dire would distort both the rule and its rationale.

…

23 Finally, applying the confessions rule to statements adduced in a Charter voir dire would lead to undesirable consequences, inhibiting legitimate and necessary police investigative powers. …

24 Indeed, in some instances, application of the confessions rule to statements adduced at a Charter voir dire would lead to absurdities. Police officers would be required to positively ascertain voluntariness in respect of almost every person they encounter in responding to an emergency, when receiving a 911 call or at other early points in an investigation, where it may be unclear who is a suspect and who is a mere witness. In dynamic and emergent circumstances, police officers must be permitted, within constitutional bounds, to respond and investigate with dispatch. Taken to its logical extension, the appellant's submission would cast doubt on basic and uncontroversial police practices which are dependent upon statements made by suspects. It would stifle police investigations, compromise public safety and needlessly lengthen and complicate voir dire proceedings - all, it bears reiterating, to secure protections which (as I have explained at para. 22) our criminal procedure already affords accused persons.

25 It follows from the foregoing that I am of the view the Court of Appeal correctly decided that the Crown was not required to prove the voluntariness of the appellant's statement regarding the roaches in his residence prior to its admission at a Charter voir dire.

[My italicization added]

[56]         In the “innocent bystander witness” to “suspect” spectrum, the law has adopted a distinction between the two, which allows a court to identify when a witness has become a “suspect”, consequently triggering a serious consideration of what protections against self-incrimination must be afforded to such a “suspect”.

[57]         These concerns were recently addressed by Justice Arnold in R. v. Sandeson, 2017 NSSC 197, wherein he stated:

232 Sandeson was not regarded by the police as an accused, a suspect or the target of an investigation when the police photographed his text messages. He was regarded by Keddy as a "person of interest", analogous in this case to the "innocent bystander" as in Wills, or a mere witness as in Grant, whose assistance is requested by the police. The police had absolutely no idea where the missing person complaint would lead them when Keddy spoke to Sandeson, as the investigation was in its infancy. As Brown J. noted in Paterson, requiring the police to obtain waivers from people regarded merely as innocent bystanders every time the police want to ask a question or follow a lead would be absurd and, in my opinion, would create complete gridlock when attempting to move police investigations forward.

Sandeson's Jeopardy

233 Whether or not an individual should be given a police caution or provided their s. 10 Charter rights depends greatly on the facts. As noted in R. v Smyth, (2006), 74 W.C.B. (2d) 8, [2006] O.J. No. 5527:

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

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

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

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

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

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

…

239 A recent, thorough and helpful analysis of this issue was undertaken in Belbin, where the Court examined when a "person of interest" would require a police caution or Charter warning prior to giving a statement. The Crown argued that Belbin was a person of interest not requiring a caution, but the defence argued that he had been "well along the spectrum to being a suspect" at the time of the interview (paras. 101-102). The court said:

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

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

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

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

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

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

107 In Morrison, Trafford J. held that the police terminology as to whether an individual is a person of interest or a suspect is not determinative nor is it necessarily instructive. He defined the test as follows: "A person is a suspect when, objectively viewed, the information collected during an investigation tends to implicate him/her in the crime." It is an objective test, not a subjective one, and is to be applied to the totality of the information. [See also Trafford J.'s reasons in R. v. Smyth, [2006] O.J. No. 5527 at paras. 81-84.]

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

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

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

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

111 I agree with and adopt Dambrot J.'s reasoning in Dalzell.

[My bolding added]

[58]         In R. v. Garnier, 2017 NSSC 338, Justice Arnold had another opportunity to revisit these issues.[7]

[59]         The circumstances in Garnier were that police spoke to Mr. Garnier because, as in Sandeson, they believed he was the last person to have seen a missing person alive.

[60]         Justice Arnold again reviewed the relevant law he had canvassed in Sandeson which necessarily had to be tailored to the facts in Garnier:

Positions of the parties

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

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

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

…

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

…

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

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

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

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

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

[My Italicization added throughout, including in the quotations cited by Justice Arnold]

[61]         In his Garnier decision Justice Arnold goes on to cite from the reasons in R. v. Belbin, 2015 ONSC 5346, where Garton J. stated:

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

[My italicization and bolding added]

[62]         I am satisfied that AJ was not the subject of a focused (i.e. illegal drugs/trafficking) investigation at the time he had contact with Sgt. Barr, Cst. Dewar or DC Carvery. This is not a situation where AJ was detained at any time, or being questioned, much less interrogated, regarding the business activities within the ACCS premises.

[63]         Prior to his arrest, the officers did not claim to have reasonable grounds to believe that he had committed any associated CDSA offences. This is perhaps because they did not undertake an actual investigation of him, but rather only requested his assistance in relation to matters directly relevant to the break and enter and robbery investigation. Other than to know he was a “manager”, or as they saw him, “the key holder” to the premises, they had no more precise information about what he did or was responsible for at the dispensary.

[64]         The officers’ evidence is unequivocal: AJ was never given a “right to silence” caution until he was arrested at 4:11 PM April 7, 2018; each of Cst. Dewar, Sgt. Barr and DC Carvery also stated that they did not consider AJ as a “suspect” while they had dealings with him, because they were investigating a break and enter and robbery, not a drug offence which would normally be investigated by the integrated “Guns and Gangs” unit.

[65]         I accept the officers’ evidence regarding this aspect. Cst. Dewar and Sgt. Barr are members of the General Patrol group; DC Carvery is with GIS, and his task was to investigate the break and enter and robbery only – the required drug investigation was not in their bailiwick.

[66]         This is well borne out by the fact that they asked him no direct questions about the operation of the dispensary beyond the minimal inquiries and requests for cooperation regarding their investigation. Their requests of him were precisely oriented toward their pursuit of the break and enter and robbery investigation (the CCTV tapes) and their concern to find a “key holder” to whom they could return security of the premises after they completed their investigation.

[67]         While in retrospect it may seem odd that they took such a narrow focus of their respective tasks, it is understandable when viewed at the time: Cst. Dewar and Sgt. Barr were involved on a temporary basis in order to secure the premises for the more specialized investigators in GIS, FIS, and the so-called “drug section”.

[68]         They did not ask AJ any questions about the operation of the cannabis dispensary, nor any specific questions about his own role there, other than incidentally confirming he was a “manager” there, thereby presumably suggesting he was a responsible person to whom they could return the premises.

[69]          As the only ascertainable and available representative of the cannabis dispensary in the early hours of April 17, 2018, they asked for his assistance in accessing the CCTV recordings, and who they might contact as the ultimate victim of the break and enter/robbery.

[70]          Incidentally, I conclude that they did have a reasonable basis to presume that he was not the owner, and ultimate victim of the break and enter.

[71]         However, when I look at all the circumstances in the present case, viewed objectively, I am satisfied that the officers involved (Dewar, Barr, Carvery and McIsaac) were, and  a reasonably competent investigator would be,  alerted to with the realistic prospect that AJ was involved in managing the premises of the illegal cannabis-related products dispensary at points in time before AJ made statements to them that further implicated him in the management of the premises, or assisted them in a manner which would permit the inference that he was implicated in the management of the premises.

[72]         In summary, I conclude that while the officers (Dewar, Barr and Carvery) were clearly focused on their task, namely the investigation of the break and enter and robbery, the fact that it was plainly obvious that this was a private retail operation cannabis dispensary, and as the criminal law stood at that time, the provision of cannabis to members of the public in that manner clearly fell within the definition of “trafficking”. Moreover, as soon as AJ confirmed he was the person referenced on the whiteboard as a “manager” in relation to the operation of the dispensary, objectively viewed, the circumstances in the present case were sufficient to significantly move AJ along the spectrum from “innocent bystander/witness” and “person of interest” to “suspect”.

[73]         That is, I am satisfied that from the point in time that AJ confirmed he was a “manager” as identified by his telephone number on the whiteboard to Sgt. Barr (i.e. the telephone call during which Sgt. Barr confirmed to him that they would be seeking a drug warrant to search the premises), objectively the information the officers had then and thereafter, namely, his confirmatory statements that he was the “manager” referenced on the whiteboard, and by his actions which confirmed his familiarity with the premises- those admissions and actions progressively more so tended to: implicate AJ in the trafficking of marijuana such that there was throughout that time interval a realistic prospect that AJ was a principal or party to trafficking of marijuana- ie., there were reasonable grounds to suspect, but not necessarily reasonable grounds to believe, that AJ had committed the offence of trafficking in marijuana until just before his arrest on April 17, 2018.

[74]         I am aware of a legitimate concern that courts not draw artificial distinctions which would unnecessarily interfere with ongoing police investigations, as reflected in Justice Garton’s reasons in Belbin:

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

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

[75]         On the latter point, I make the following observations.

[76]         AJ was tasked by the employer/owners to be a “manager” of the premises. He was aware when he spoke to Sgt. Barr that he was the only ascertainable and available apparently responsible person who could represent the interests of his employer in the early morning hours of April 17, 2018. The premises had been forcibly broken into and their security guard had been likely threatened and robbed. The premises could not be secured because the back door was significantly damaged. The police needed access to the videotapes in order to conduct their investigation into who had committed the break and enter and robbery. The police asked for his cooperation in these respects as a representative of his employer. AJ assisted the police in accessing the videotape recordings and accepting responsibility for securing the premises upon their departure. He thereby gave the police the grounds upon which the police ultimately concluded they had reasonable grounds to arrest him for trafficking marijuana.

[77]         Until he was arrested, AJ was not told anything that gave him any hint that he faced any jeopardy by assisting the police as they had requested. Moreover, he was also representing the interests of his employer by assisting the police, inter alia, by asserting himself in relation to both, not knowing the combination for the safe though as a self-described “manager” he was arguably in a position to know this, and who the “owners” were.

[78]         In these circumstances, I am satisfied that he should have been given a police caution initially by Sgt. Barr, and not having been given a police caution, I conclude that there is at least a reasonable doubt about the voluntariness of his admissions and actions to assist the police, with what he understood to be their break-and-enter and robbery investigation.

Conclusion as to Voluntariness

[79]         If the police officers wished to rely upon any of his statements and actions to incriminate him, it was necessary for them to have given AJ the police caution before they requested, and had the benefit of, his answers and assistance in relation to the premises of ACCS. Having said that, I wish to be clear, I am satisfied throughout their multiple interactions with AJ, the officers did not consciously elicit incriminatory responses and actions from AJ with a view to charging him with possession for the purpose of trafficking marijuana.

[80]         On the other hand, objectively viewed, at the time of his first contact with Sgt. Barr there was a sufficiently realistic prospect that he was implicated in trafficking marijuana. That prospect only became weightier as his interactions with the police continued until he was arrested.

[81]         While the failure to give a police-caution is not necessarily determinative of the voluntariness of a statement made by a defendant to persons in authority-it usually is. This is such a case. The failure to give a police caution was necessary in the circumstances.

[82]         I am not satisfied beyond a reasonable doubt that AJ’s answers and assistance given to the police officers that day were “voluntary” on his part, as contemplated by the confessions rule.

[83]         Therefore, this evidence is inadmissible at his trial.

The admissibility of the documents in the digital safe located in the office of the ACCS premises April 17, 2018

[84]         The evidence surrounding this issue is not controversial. The officers were invited to the premises by the existence of an ongoing alarm signalling a breach in security. They attended there around 1:00 AM to find a damaged door swinging open as a result of an apparent forced entry. A male emerged from the premises claim to be a security guard and having been robbed. In short order the K-9 unit arrived, and the officers entered the premises. In plain view, they could see that the premises were in the retail business of illegally selling cannabis and cannabis-related products to the public. An ATM was present in the public customer service area. A search warrant seeking evidence of offences under the CDSA was executed at 2:00 PM that same day.

[85]         DC McIsaac contacted AJ by text and phone because they were seeking the combination for the office safe, they wished to return the premises to an ACCS representative, and to arrest AJ as he was the only available ACCS representative. A locked digital combination number safe was located in what appeared to be the business office of the premises. AJ had been asked for the combination and stated he did not know what it was. The officers made efforts, but had no other person to ask, so they seized the safe and forcibly opened it at police premises.

[86]         After the search was completed, the premises were turned over to AJ, who had arrived at the premises, as the representative “key holder” for ACCS. He was also arrested at that time[8].

[87]         Therein they found a substantial quantity of cash, and numerous forms of documents which arguably appeared to be associated with the retail operation of the dispensary.

[88]         The documents included: sundry receipts for items purchased from third parties; a number of ATM cash reconciliations; daily (misc.) expense reports; purchase orders; employee hours worked reports; receipts for sales to customers (being Exhibits VD-1-3, 4,5 and 6).

[89]         I keep in mind the comments of the Supreme Court of Canada, as stated in CanadianOxy Chemicals Ltd. v. Canada, [1999] 1 SCR 743 (cited with approval in R v Vice Media Canada Inc., 2018 SCC 53 at para 47), in the context of search warrants regarding alleged illegal discharge of toxic material into fresh water by the corporate defendant):

B.  Purpose of the Search Warrant Provisions of the Criminal Code

20  A primary, though not exclusive, purpose of the Criminal Code, and penal statutes in general, is to promote a safe, peaceful and honest society, This is achieved by providing guidelines prohibiting unacceptable conduct, and providing for the just prosecution and punishment of those who transgress these norms. The prompt and comprehensive investigation of potential offences is essential to fulfilling that purpose. The point of the investigative phase is to gather all the relevant evidence in order to allow a responsible and informed decision to be made as to whether charges should be laid.

21 At the investigative stage the authorities are charged with determining the following: What happened? Who did it? Is the conduct criminally culpable behaviour? Search warrants are a staple investigative tool for answering those questions, and the section authorizing their issuance must be interpreted in that light.

22 The purpose of s. 487(1) is to allow the investigators to unearth and preserve as much relevant evidence as possible. To ensure that the authorities are able to perform their appointed functions properly they should be able to locate, examine and preserve all the evidence relevant to events which may have given rise to criminal liability. It is not the role of the police to investigate and decide whether the essential elements of an offence are made out - that decision is the role of the courts. The function of the police, and other peace officers, is to investigate incidents which might be criminal, make a conscientious and informed decision as to whether charges should be laid, and then present the full and unadulterated facts to the prosecutorial authorities. To that end an unnecessary and restrictive interpretation of s. 487(1) defeats its purpose. See Re Church of Scientology and the Queen (No. 6) (1987), 31 C.C.C. (3d) 449, p. 475:

Police work should not be frustrated by the meticulous examination of facts and law that is appropriate to a trial process... . There may be serious questions of law as to whether what is asserted amounts to a criminal offence... . However, these issues can hardly be determined before the Crown has marshalled its evidence and is in a position to proceed with the prosecution.

23 Moreover, extrinsic factors such as the accused's motive or the failure to exercise due diligence are often relevant to determining whether the event which triggered the investigation in the first place is criminally culpable. Everyone, including accused persons, who lacks the means of obtaining and preserving evidence prior to trial has an interest in seeing that these facts are brought to light. It would be undesirable if a narrow reading of s. 487(1) resulted in either inculpatory or exculpatory evidence being lost because of the investigators' inability to secure it. See R. v. Storrey, [1990] 1 S.C.R. 241, per Cory J., at p. 254:

The essential role of the police is to investigate crimes. That role and function can and should continue after they have made a lawful arrest. The continued investigation will benefit society as a whole and not infrequently the arrested person. It is in the interest of the innocent arrested person that the investigation continue so that he or she may be cleared of the charges as quickly as possible.

24 It is important that an investigation unearth as much evidence as possible. It is antithetical to our system of justice to proceed on the basis that the police, and other authorities, should only search for evidence which incriminates their chosen suspect. Such prosecutorial "tunnel vision" would not be appropriate: see The Commission on Proceedings Involving Guy Paul Morin: Report, vol. 1 (1998), per the Honourable F. Kaufman at pp. 479-82.

[My italicization added]

[90]         The Crown seeks to have ruled as admissible these various documents contained in the noted Exhibits on several bases:

1.        pursuant to the “documents in possession [by an accused]” rule – see R. v. Wood, 2001 NSCA 38; R. v. Caccamo, [1976] 1 SCR 786;

2.        as “business records” pursuant to the statutory basis in s. 30 of the Canada Evidence Act [”CEA”];

3.        as “business records” pursuant to the common-law authority articulated by the court in Ares v. Venner, [1970] SCR 608;

4.        according to the application of the principled exception to the hearsay rule – see R. v. Wilcox, 2001 NSCA 45; R. v. Khelawon, [2006] 2 SCR 787 and its progeny; more specifically in R. v. Howe 2017 NSSC 199 at para 13; and R. v. Oberlander, [1998] FCJ No. 1380 (TD) at paras 70-71.

[91]         The Defence says that AJ cannot demonstrably be considered to have been in actual or constructive possession of the documents, citing s. 4(3) Criminal Code generally, and R. v. Beaver, [1957] SCR 531; and R. v. Morelli, 2010 SCC 8 at para. 17 regarding “constructive possession”.

[92]         Regarding the criteria in s. 30 CEA, the Defence argues that documents merely found in a business are not inherently therefore “business records”. The documents from the safe do not meet the statutory requirements, specifically as noted in R. v. Tremblay, 2019 ONSC 1994, at para. 10 – it is asserted that there must be proof that the records were made by a person who is under a specific duty to do and record the thing sought to be established by the record, and failing evidence of who created the record also brings into question whether the person had a motive to misrepresent.

[93]         Insofar as the principled exception to the hearsay rule is concerned, the Defence argues that the Crown is unable to establish either of the requisite criteria: necessity or reliability. It notes that the Crown has not specifically identified for each document group what is the nature of the specific evidence sought to be admitted, therefore it is impossible for the court to determine whether there are no other means to obtain similar quality evidence, and that the documents are “pages with words devoid of corroboration, context, and coherence” and therefore unreliable per R. v. Bradshaw, 2017 SCC 35, at para. 31.

1.  Were these “documents in possession of the accused”?

[94]         Cromwell J.A. (as he then was) stated in, R. v. Wood, 2001 NSCA 38:

113 A frequently cited description of this doctrine is from M.N. Howard et al. (eds.) Phipson on Evidence (15th, 2000) at [paragraph] 30-10:

Documents which are, or have been, in the possession of a party will, as we have seen, generally be admissible against him as original (circumstantial) evidence to show his knowledge of their contents, his connection with, or complicity in, the transactions to which they relate, or his state of mind with reference thereto. They will further be receivable against him as admissions (i.e. exceptions to the hearsay rule) to prove the truth of their contents if he has in any way recognised, adopted or acted upon them. So, as we have seen, documents which a party has caused to be made or knowingly used as true in a judicial proceeding to prove a particular fact, are admissible against him in subsequent proceedings to prove the same fact, even on behalf of strangers. Documents furnished by persons specifically referred to for information are evidence against the referrer; though a mere general reference will not have this effect. (citations omitted)

(emphasis in original)

114 There are three elements of the doctrine. First, it must be shown that the document was actually or constructively in the possession of the accused. Second, if such possession is established, the document will be admissible to show the accused's knowledge of its contents, his connection with and state of mind with respect to the transaction to which it relates. Third, if it is established that the accused has recognized, adopted or acted on the document, it becomes admissible for the truth of its contents under the admissions exception to the hearsay rule. The first and third of these elements are most relevant for the purposes of this appeal.

[95]         There is no evidence that would reliably permit the inference that the contents of the safe were in the actual possession of AJ.

2.  Has the Crown shown that AJ constructively or jointly possessed the documents that were found in the safe?

[96]         Section 4(3) of the Criminal Code reads:

4(3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly,

i) has it in the actual possession or custody of another person, or

ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

[97]         So-called “constructive possession” was discussed by Justice Fish in R. v. Morelli, 2010 SCC 8, at para. 17:

15 For the purposes of the Criminal Code, "possession" is defined in s. 4(3) to include personal possession, constructive possession, and joint possession. Of these three forms of culpable possession, only the first two are relevant here. It is undisputed that knowledge and control are essential elements common to both.

16 On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question and must be aware as well of what that thing is. Both elements must co-exist with an act of control (outside of public duty): Beaver v. The Queen, [1957] S.C.R. 531, at pp. 541-42.

17 Constructive possession is established where the accused did not have physical custody of the object in question, but did have it "in the actual possession or custody of another person" or "in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person" (Criminal Code, s. 4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person.

[98]         I have concluded that AJ’s statements and actions on April 17, 2018, are not admissible as against him. That ruling also informs my decision in relation to the issue whether he constructively or jointly possessed the documents found in the safe.

[99]         There being no evidence capable of supporting an inference that he was in actual possession of the documents in question, nor that he was in constructive possession or joint possession of the documents, compels me to find they are not admissible on this basis as against him.

3.  Are these documents admissible pursuant to section 30 of the Canada Evidence Act?

[100]    Section 30 of the Act reads:

Business records to be admitted in evidence

30. (1) Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding on production of the record.

Inference where information not in business record

(2) Where a record made in the usual and ordinary course of business does not contain information in respect of a matter the occurrence or existence of which might reasonably be expected to be recorded in that record, the court may on production of the record admit the record for the purpose of establishing that fact and may draw the inference that the matter did not occur or exist.

Copy of records

(3) Where it is not possible or reasonably practicable to produce any record described in subsection (1) or (2), a copy of the record accompanied by two documents, one that is made by a person who states why it is not possible or reasonably practicable to produce the record and one that sets out the source from which the copy was made, that attests to the copy's authenticity and that is made by the person who made the copy, is admissible in evidence under this section in the same manner as if it were the original of the record if each document is

(a) an affidavit of each of those persons sworn before a commissioner or other person authorized to take affidavits; or

(b) a certificate or other statement pertaining to the record in which the person attests that the certificate or statement is made in conformity with the laws of a foreign state, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the foreign state.

Where record kept in form requiring explanation

(4) Where production of any record or of a copy of any record described in subsection (1) or (2) would not convey to the court the information contained in the record by reason of its having been kept in a form that requires explanation, a transcript of the explanation of the record or copy prepared by a person qualified to make the explanation is admissible in evidence under this section in the same manner as if it were the original of the record if it is accompanied by a document that sets out the person's qualifications to make the explanation, attests to the accuracy of the explanation, and is

(a) an affidavit of that person sworn before a commissioner or other person authorized to take affidavits; or

(b) a certificate or other statement pertaining to the record in which the person attests that the certificate or statement is made in conformity with the laws of a foreign state, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the foreign state.

Court may order other part of record to be produced

(5) Where part only of a record is produced under this section by any party, the court may examine any other part of the record and direct that, together with the part of the record previously so produced, the whole or any part of the other part thereof be produced by that party as the record produced by him.

Court may examine record and hear evidence

(6) For the purpose of determining whether any provision of this section applies, or for the purpose of determining the probative value, if any, to be given to information contained in any record admitted in evidence under this section, the court may, on production of any record, examine the record, admit any evidence in respect thereof given orally or by affidavit including evidence as to the circumstances in which the information contained in the record was written, recorded, stored or reproduced, and draw any reasonable inference from the form or content of the record.

Notice of intention to produce record or affidavit

(7) Unless the court orders otherwise, no record or affidavit shall be admitted in evidence under this section unless the party producing the record or affidavit has, at least seven days before its production, given notice of his intention to produce it to each other party to the legal proceeding and has, within five days after receiving any notice in that behalf given by any such party, produced it for inspection by that party.

Not necessary to prove signature and official character

(8) Where evidence is offered by affidavit under this section, it is not necessary to prove the signature or official character of the person making the affidavit if the official character of that person is set out in the body of the affidavit.

Examination on record with leave of court

(9) Subject to section 4, any person who has or may reasonably be expected to have knowledge of the making or contents of any record produced or received in evidence under this section may, with leave of the court, be examined or cross-examined thereon by any party to the legal proceeding.

Evidence inadmissible under this section

(10) Nothing in this section renders admissible in evidence in any legal proceeding

(a) such part of any record as is proved to be

(i) a record made in the course of an investigation or inquiry,

(ii) a record made in the course of obtaining or giving legal advice or in contemplation of a legal proceeding,

(iii) a record in respect of the production of which any privilege exists and is claimed, or

(iv) a record of or alluding to a statement made by a person who is not, or if he were living and of sound mind would not be, competent and compellable to disclose in the legal proceeding a matter disclosed in the record;

(b) any record the production of which would be contrary to public policy; or

(c) any transcript or recording of evidence taken in the course of another legal proceeding.

Construction of this section

(11) The provisions of this section shall be deemed to be in addition to and not in derogation of

(a) any other provision of this or any other Act of Parliament respecting the admissibility in evidence of any record or the proof of any matter; or

(b) any existing rule of law under which any record is admissible in evidence or any matter may be proved.

Definitions

(12) In this section,

"business"

"business" means any business, profession, trade, calling, manufacture or undertaking of any kind carried on in Canada or elsewhere whether for profit or otherwise, including any activity or operation carried on or performed in Canada or elsewhere by any government, by any department, branch, board, commission or agency of any government, by any court or other tribunal or by any other body or authority performing a function of government;

"copy" and "photographic film"

"copy", in relation to any record, includes a print, whether enlarged or not, from a photographic film of the record, and "photographic film" includes a photographic plate, microphotographic film or photostatic negative;

"court"

"court" means the court, judge, arbitrator or person before whom a legal proceeding is held or taken;

"legal proceeding"

"legal proceeding" means any civil or criminal proceeding or inquiry in which evidence is or may be given, and includes an arbitration;

"record"

"record" includes the whole or any part of any book, document, paper, card, tape or other thing on or in which information is written, recorded, stored or reproduced, and, except for the purposes of subsections (3) and (4), any copy or transcript admitted in evidence under this section pursuant to subsection (3) or (4).

R.S.C. 1985, c. C-5, s. 30; S.C. 1994, c. 44, s. 91.

[101]    I had occasion to consider the CEA provisions in R. v. Howe, 2017 NSSC 199:

13  The jurisprudence confirms that s 30 "does not require that an attestation that the document is made in the usual and ordinary course, of business or activity of the business or agency concerned, be made by someone who knows that from personal experience and who was involved in the process of producing the document... No requirement is set out in the Act for personal experience of the affiant with the process of producing the document."- R. v. Oberlander, [1998] FCJ No. 1380 (TD) per MacKay J at paras 31-32; see also paras. 70-71 in R. v. Ramratte, 2015 ONCJ 567 per Bacchus J; R v Tennina, [2010] OJ No. 6244 (SC) per Quinlan J .

14  In R. v. Wilcox, 2001 NSCA 45, Cromwell J.A (as he then was) stated at paras. 53-56, in relation to s. 30:

Next, its admissibility under s. 30 of the Canada Evidence Act must be considered... [That section] of the act simply requires that the record be made "in the usual and ordinary course of business". Unlike the common law exception, s 30 does not require the maker of the record to be under a duty to make it. Unlike several of the provincial evidence act provisions, there is no requirement that it be in the usual and ordinary course of business to make such a record... The brief discussion of s. 30 in R. v. Zundel, (1987) 35 DLR (4th) 338 (Ont CA) at 403-405 is consistent with the view that s. 30 applies only to documents ordinarily made in the business. . . .

15 It is clear that the maker of the "record" is not required to be present before the record can be admitted as evidence under s. 30 Canada Evidence Act.

16 I am satisfied that a "record" can be proved to be so on a balance of probabilities, in any manner that any other document could be proved. …

17 "Record" is defined in s. 30(12) of the Canada Evidence Act as follows:

Includes the whole or any part of any book, document, paper, card, tape or other thing on or in which information is written, recorded, stored or reproduced, and, except for the purposes of subsections 3 and 4, any copy or transcript admitted in evidence under this section pursuant to subsection 3 or 4.

18 The Act does not define what is an "original", though it does provide in s. 30(3) for "copies":

Where it is not possible or reasonably practicable to produce any record described in subsection (1) or (2), a copy of the record accompanied by two documents, one that is made by a person who states why it is not possible or reasonably practicable to produce the record and one that sets out the source from which the copy was made, that attests to the copy's authenticity and that is made by the person who made the copy, is admissible in evidence under this section in the same manner as if it were the original of the record if each document is... [by either an affidavit or certification or other statement].

19 Subsection 3 aims to present the court with a "true copy" of an extant original, when it is not possible or reasonably practicable to produce an original.

[102]    In the case at Bar, the documents do appear to be original records, which relate to the business activity of ACCS arising in those premises. It can be inferred from all the circumstances that generally speaking they are records “made in the usual and ordinary course of business”.

[103]    At their highest, each of these records could be said to be written confirmation and indicia of the nature of the business transacted at the ACCS premises, and can be taken to be admissible for the truth of their contents.

[104]    There is no requirement that AJ have had any form of possession of the documents.

[105]    At his trial, these documents are admissible (namely ATM cash reconciliations; expense reports; purchase orders; employee hours worked reports; and receipts for sales to customers).

4.  The common law “business records” exception to the hearsay rule

[106]    In R. v. Howe, 2017 NSSC 199, I examined the nature and prerequisites of this hearsay exception:

33 Again, as Justice Beveridge stated in Keats:

110 Mr. Ewart summarized the common law rule following Ares v. Venner as follows:

...the modern rule can be said to make admissible a record containing (i) an original entry (ii) made contemporaneously (iii) in the routine (iv) of business (v) by a recorder with personal knowledge of the thing recorded as a result of having done or observed or formulated it (vi) who had a duty to make the record and (vii) who had no motive to misrepresent. Read in this way, the rule after Ares does reflect a more modern, realistic approach for the common law to take towards business duty records.

111 This clear articulation of the common law test was approved in R. v. Monkhouse, [1988] 1 W.W.R. 725 (Alta. C.A .)1 and by Cromwell J.A, as he then was in R. v. Wilcox, 2001 NSCA 45.

...

115 Furthermore, there is no shortage of authorities that have clearly turned to the common law to admit business records that fail the CEA requirements (see: R. v. Sunila (1986), 73 N.S.R. (2d) 308 (N.S.S.C.); R. v. Monkhouse, supra.; Éthier v. Royal Canadian Mounted Police Commissioner, [1993] F.C.J. No. 186 (C.A.); R. v. Marini, [2006] O.J. No. 4057; R. v. Crate, 2012 ABCA 144).

34  In R. v. Sunila, (1986) 73 NSR (2d) 308, Justice A. MacIntosh stated:

The third avenue of approach suggested by Crown counsel in this issue is a consideration of the principles enunciated by the Supreme Court of Canada in Ares v. Venner reported in 1970, 14 D.L.R. (3d), page 4; in other words, dealing with the common law approach to business documents as an exception to the hearsay rule. Documents offered in evidence as proof of their contents are hearsay and can only be admitted as an exception to the hearsay rule. Ewart, the author of Documentary Evidence In Canada discusses the impact of Ares v. Venner at page 13. He states as follows:

Care must be taken to avoid confusing the existence of established standards for admitting documents into evidence as exceptions to the hearsay rule, with the perception that the exceptions themselves have been finally and definitively determined. Although this is the position in England, the Supreme Court of Canada has expressly rejected that view in favour of the opinion that courts in Canada are free to develop new exceptions. Accordingly, the courts can modify established criteria and can create entirely new criteria for the admissibility of all forms of evidence, including documentary evidence.

. . .

The discretion thus given to Canadian courts is not entirely unstructured. As Wigmore (Wigmore on Evidence) so carefully shows, most of the exceptions to the hearsay rule which have been created over several centuries can be found to have been constructed on two fundamental principles: necessity, and a circumstantial guarantee of trustworthiness. Of these two fundamental standards, the second is by far the more compelling: a court can feel relatively comfortable in breaking new ground if it has been satisfied that the circumstances of the document's creation provide an adequate substitute for the traditional safeguard of cross-examination. The proponent of a document should seek to persuade the court that the document, because of the circumstances of its creation, is inherently reliable. If this is done, then the necessity doctrine can likely be satisfied simply by demonstrating that there is no other equally convenient way to put before the court the information in question."

Hall, J., who wrote the decision in Ares v. Venner, rejected the position in England as set forth in Myers v. Director of Public Prosecutions, reported in [1965] A.C. 1001, and adopted the minority position which advocated the extension of the hearsay rule by judicial decision. He concluded, and I quote:

Although the views of Lords Donovan and Pearce are those of the minority in the Myers case, I am of opinion that this Court should adopt and follow the minority view rather than resort to saying in effect: This judge-made law needs to be restated to meet modern conditions, but we must leave it to Parliament and the ten legislatures to do the job'.

Hospital records, including nurses' notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein. This should, in no way, preclude a party wishing to challenge the accuracy of the records or entries from doing so.

Authority for the proposition that Ares v. Venner is not confined to hospital records is found in the Setak, [1977] O.J. No. 2226 case I mentioned before, where Griffiths, J. states at page 646:

Although the statement refers only to hospital records it may be inferred that this decision settles the law applicable to records of other businesses made in similar circumstances.

Pursuant to Ares v. Venner there are three criteria of admissibility:

1.  The record or entry must have been made contemporaneously with the event recorded;

2.  The record must be made by someone with personal knowledge of the matters; and

3.  The record must be made by someone under duty to make them.

35 Regarding the duty to make the record, Justice Cromwell (as he then was) observed in Wilcox:

51 The duty to maintain the record was thought by the common law to be one of the circumstantial guarantees of the document's trustworthiness. As Sopinka, Lederman and Bryant put it: "...[a business record] was said to possess a circumstantial guarantee of truth based upon the assumption that a declarant would fear censure and dismissal should an employer discover an inaccuracy in the statement.": John Sopinka, Sidney N. Lederman and Alan W. Bryant, The Law of Evidence in Canada, 2d ed. (Toronto: Butterworths, 1999) at pp. 211 - 212.

36 I accept the evidence that the Hells Angels are a secretive organization, and if involved in criminality, will not likely refer to those circumstances expressly in the minutes of their meetings, such that it may be said the minutes are likely an incomplete picture of all the business that takes place at such meetings. However insofar as the non-criminal organizational aspects are concerned, I am satisfied that those concerns do not undermine the reliability of what those items that are recorded in the minutes. The organization relies on the accuracy of these minutes. It demands that they be created, maintained, and disseminated to its members. As noted earlier, in the present circumstances this is tantamount to a duty to create, maintain, and disseminate these documents.

37 Therefore, keeping in mind that courts have used a flexible and purposive approach to such common-law doctrines, on examination of the common law "business records" exception criteria I find as follows:

1- the minutes, constitute an original or true copy;

2- the minutes would have been made contemporaneously with the meeting that document purports to concern;

3- the minutes were made in the usual and ordinary course of the business;

4- the Hells Angels Motorcycle Club is a "business";

5- the recorder (secretary) would have had personal knowledge of the items recorded as a result of being present;

6- the recorder (secretary) had a duty to make the records, and to disseminate them;

7- the recorder had no motive to misrepresent the items recorded.

38  Bearing in mind all of the foregoing, I am satisfied that the minutes of the meetings (including the letter) fall within the common law "business records" exception to the hearsay rule, and they should not be excluded on the basis of a cost-benefit analysis. Under this analysis as well, the contents are deemed to be prima facie true.

[107]    In the case at Bar, while it is reasonable to infer that the hand-written generated documents, which appear to have been generated on-site are generally likely to have been made contemporaneously with the transactions, and by a means ( human) that could be seen to have “personal knowledge”, I am not satisfied that I can safely conclude based only on a superficial examination of the documents without any more evidence regarding the quality of those documents, that they were made by someone under a duty to make them, and that they had no motive to misrepresent the items recorded, bearing in mind the likelihood that persons working there knew it was an “illegal” cannabis dispensary.

[108]    Therefore, in relation to those documents to which this admissibility basis may be applicable, I do not find them admissible under the common law “business records” exception.

[109]    I do not believe it is necessary to go on to consider the simple principled exception to the hearsay rule requirements.

Summary Regarding the Admissibility of Documentation

[110]    In summary, I have concluded that only the following documents are admissible, and are so pursuant to s 30 CEA- being Exhibits:

VD-1-2 (the ATM cash reconciliations);

VD-1-3 (daily miscellaneous expense reports);

VD-1-4 (purchase orders)

VD-1-5 (employee hours worked reports); and

VD-1-6 (Receipts for sales to customers).

[111]    The documents in VD-1-1 (sundry receipts for items purchased from third parties by the business) are merely original evidence, since without more, it cannot be said that the items were actually purchased for the business.

Summary and Disposition of the Voir Dires

[112]    Any of the statements, admissions made, or actions taken, by Mr. Terrio in response to interactions with the police officers he encountered on April 17, 2018, are not admissible against him at trial.

[113]    Of the documentary contents of the safe found on the premises, most of those documents are admissible at trial pursuant to s. 30 of the Canada Evidence Act.

 

Rosinski, J.