



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hamilton, 2017 ONCA 179

DATE: 20170302

DOCKET: C60116

Feldman, Gillese and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rheal Michel Hamilton

Applicant/Appellant

Jonathan Dawe, for the appellant

Craig Harper, for the respondent

Heard: February 2, 2017

On appeal from the convictions entered on December 5,
    2014, by Justice Anne Mullins of the Superior Court of Justice, sitting with a
    jury.

Gillese J.A.:

OVERVIEW

[1]

A Rogers Wireless store was robbed.  Shortly
    afterwards, Rheal Michel Hamilton (the appellant) was arrested in connection
    with the robbery.  He was placed in the back of a police cruiser.  After having
    been read his rights to counsel, the appellant told the arresting officer that
    he wanted to speak to duty counsel.  Despite that, the officer continued to
    question him.  The appellant answered by giving an exculpatory statement about his
    whereabouts shortly before the robbery (the First Statement).

[2]

At the police station, the appellant spoke by
    telephone with duty counsel for four or five minutes.  Approximately an hour
    and a half later, the appellant was interviewed by a different police officer. 
    During the interview, the appellant acknowledged that duty counsel had advised
    him not to speak to the police.  The interviewing officer also advised the
    appellant of his right to silence.  However, he did not tell the appellant that
    nothing the appellant had already said to the police should in any way affect
    his decision whether to speak with them at that time.  Over the course of the
    interview, the appellant gave substantially the same exculpatory statement as
    he had before (the Second Statement).

[3]

The appellant and his co-accused were tried
    together on charges arising from the robbery.  The trial took place before a
    judge and jury.

[4]

A pre-trial
voir dire
was conducted
    concerning the admissibility of statements that each of the accused had given
    to the police.  The trial judge admitted the Second Statement.

[5]

The appellant testified at trial and advanced an
    alibi that was consistent with the Second Statement except that he said that,
    just prior to the robbery, he had been with his spouse as opposed to a woman
    named Sasha.

[6]

The jury found the appellant guilty of all
    charges against him (robbery, using an imitation firearm in the commission of
    an indictable offence, unlawful confinement, and wearing a disguise with intent
    to commit an indictable offence).  He was sentenced to a net term of 27 months
    and 10 days imprisonment.

[7]

He appeals against conviction on the basis that
    the trial judge should not have admitted the Second Statement.

[8]

For the reasons that follow, I would allow the
    appeal, quash the convictions and order a new trial.

BACKGROUND IN BRIEF

[9]

At approximately 9:05 p.m. on November 23, 2011,
    three men robbed a Rogers Wireless store in Vaughan, Ontario.

[10]

Exterior security footage from a Tim Hortons
    restaurant in the same plaza as the Rogers store showed the appellant walking
    across the parking lot approximately ten minutes after the robbery had ended. 
    A short while later, a bystander reported to the police that someone had been
    seen running west along Highway 7.

[11]

Police Constable McCallum drove along the
    highway and saw the appellant in the plaza of a Wendys restaurant.  PC
    McCallum thought that the appellant matched the description of one of the
    suspects that had been aired over police radio, so he detained him.  He asked
    the appellant where he was coming from and the appellant replied, Tim
    Hortons.  PC McCallum searched the appellant for weapons, and told him that he
    was investigating an armed robbery at the Rogers store.

[12]

The appellant was then turned over to PC Armas,
    who had arrived in his own cruiser just behind PC McCallum.

[13]

At 9:23 p.m., PC Armas arrested the appellant
    and placed him in the rear of his police cruiser.  Approximately eight minutes
    after his arrest, PC Armas apprised the appellant of his rights to counsel.  After
    having been cautioned, the appellant indicated that he understood the information
    that he had been given.  He also told PC Armas that he wanted to speak with
    duty counsel.

[14]

Nonetheless, PC Armas continued to question the
    appellant.  The appellant made the First Statement to PC Armas, most of which
    was in response to questions by PC Armas after the appellant had indicated that
    he wanted to talk to duty counsel.

[15]

The essence of the appellants First Statement
    was that he had been taking the bus to Toronto along Highway 7 from his home in
    Brampton with a woman named Sasha Costello; they had argued; he had left the
    bus and was on his way to Wendys when he was detained by the police.

[16]

The appellant arrived at the police station with
    PC Armas shortly before 10 p.m.  Shortly after midnight, the appellant spoke privately
    with duty counsel, by telephone, for four or five minutes.

[17]

At approximately 1:45 a.m., the appellant was
    taken to an interview room, where DC Abreu questioned him.  The interview lasted
    until 3:36 a.m, with several breaks.  It was recorded by video and supervised
    by another officer.  During the interview, DC Abreu advised the appellant of
    his right to silence. But, he did not tell the appellant that his decision
    whether to speak with them should not be influenced by anything the appellant had
    already told the police

[18]

DC Abreu testified that although he expected to
    be briefed about any statements that the appellant had made to other police
    officers before he interviewed the appellant, at the time of that interview, he
    was unaware of the First Statement.

[19]

During his interview with DC Abreu, the
    appellant made the Second Statement, which was substantially similar to his
    First Statement.  He said that he and Sasha had been taking the York Region Transit
    #77 bus along Highway 7 and were travelling to Sashas home in Toronto. 
    However, after they got into a fight he got off the bus at the stop in front of
    the plaza in which the Tim Hortons was located.  He said that he first went
    into the Tim Hortons but changed his mind and, while he was walking down the
    road to Wendys, he was arrested.

[20]

During the interview, the appellant mentioned
    several times to DC Abreu that he was repeating what he had already told the
    police.  For instance, when DC Abreu asked the appellant what he had been doing
    in Vaughan, the appellant began his answer by saying, I already talked to them
    about that.  The appellant then told PC Abreu what he had previously told PC
    Armas, namely, that he had been taking the bus with a friend.  When DC Abreu
    asked for the friends name, the appellant replied, Sasha. I already gave that
    to the police.

THE IMPUGNED RULING

[21]

The Crown brought a pre-trial motion in which it
    sought to adduce the Second Statement in order to discredit the appellants
    story as a fabrication and to invite the jury to infer consciousness of guilt. 
    The Crown did not seek to adduce the First Statement.

[22]

The defence conceded the voluntariness of the
    statements and brought its own application to have the statements excluded on
Charter
grounds.  In that application, the appellant maintained that PC Armas had
    infringed his s.10(
b
) rights by continuing to question him after he had
    indicated his wish to speak with duty counsel and that the Second Statement was
    tainted.  He submitted that both statements should be excluded under s. 24(2)
    of the
Charter
.

[23]

When the pre-trial
voir dire
was conducted,
    both Crown and defence counsel mistakenly believed that the First Statement had
    not been audio-recorded.

[24]

Following the
voir
    dire
, in a ruling dated October 21, 2014 (the
    Original Ruling), the trial judge ruled that the Second Statement was admissible. 
    She began by considering the voluntariness of the statements.  She concluded
    the voluntariness section of her analysis at para. 55 of her reasons, saying:

[55] Assuming for these analytic purposes, [the
    appellants] utterances at the scene were involuntary, and obtained in
    circumstances of a breach of his
Charter
rights, the admissibility of
    his [Second Statement] must be assessed on the basis of a number of factual
    determinations. These include the time between the [First Statement] and the [Second
    Statement], any advertence to the [First Statement], the presence or not of the
    same officers, and any other similarities of circumstances.

[25]

The validity of the trial judges reasons for
    admitting the Second Statement is in issue in this appeal.  Thus, I set them out
    below.

Tainting
     Mr. Hamilton [the appellant]

[56] In the case of
R. v. I & T
,
    jurisprudence is cited that confirms that there is no hard and fast rule.
    Tainting of a statement may be found if the same disqualifying circumstances
    are considered to be prevalent in the second statement, as were present at the
    first statement. Or that the evidence establishes that a first statement is a
    substantial contributing factor to the making of the second.

[57] Here the defence submits that Mr.
    Hamiltons [Second Statement] was tainted in that utterances attributed to him
    by Officer Armas to the effect that he was coming from Tim Hortons, that he had
    traveled by bus, that he was intending to visit a girlfriend, and/or was accompanied
    by that girlfriend, must have preyed on Mr. Hamiltons mind during the giving
    of his formal statement while interviewed by Officer Abreu.

[58] When the specific examples that are cited
    by the defence are considered, those at pages 14, 9 to 10, 18 to 19, 22, 33 and
    36 to 37, and having viewed the video-recorded statement, this is simply not
    borne out.

[59] Officer Abreu related to Mr. Hamilton
    during the video-recorded statement that witnesses had observed him running
    towards Wendys from Tim Hortons. Mr. Hamilton was not confronted with any
    allegation of having made a statement to any other officer as to his presence
    at Tim Hortons. Likewise, Mr. Hamiltons account of having been on a bus
    intending to visit a friend is not prompted by any assertions to him, of having
    recounted this previously to any other officer.

[60] In short, there is no demonstrable
    relationship between any utterance earlier made by Mr. Hamilton and his [Second
    Statement] that can be discerned as having subverted his choice to speak or not
    with Officer Abreu.

[61] Since the Crown is not seeking to tender
    the utterances of Mr. Hamilton that preceded his video-recorded statement, I
    need not make a ruling as to their voluntariness, nor given my finding that
    there was no taint of the latter by the former, need I make a ruling that
    excludes any earlier utterances from being given in evidence.

[26]

When counsel subsequently discovered that an
    audio recording of the First Statement was available, the trial judge granted
    leave to the defence to re-open its
Charter
application.

[27]

In a very brief decision dated November 4, 2014,
    the trial judge affirmed the Original Ruling.

THE ISSUES

[28]

On appeal, the appellant submits that:

1.

the trial judge applied the wrong test when
    deciding whether to admit the Second Statement and that application of the correct
    legal test leads to the conclusion that the Second Statement was tainted by the
    First Statement; and

2.

both statements should be excluded under s.
    24(2) of the
Charter
.

[29]

The Crown argues that the appellant should not succeed
    on either issue.  If he does, however, the Crown submits that:

3.

even if the Second Statement is excluded, the
    curative proviso should apply.

ANALYSIS

Issue #1      The Second Statement
    was Tainted


[30]

The appellant submits that, when deciding
    whether to admit the Second Statement, the trial judge applied the wrong test
    and made the same error that this court identified in
R. v. Plaha
(2004),
    188 C.C.C. (3d) 289 (Ont. C.A.).  He contends that a proper consideration of
    the temporal, contextual and causal connections between the First and Second Statements
    leads to the conclusion that the Second Statement was tainted.

[31]

The Crown submits that the Second Statement was
    not obtained in a manner that infringed the appellants
Charter
rights. 
    The Crown contends that if there was a breach of the appellants rights in
    respect of the First Statement, the events that occurred between the First
    Statement and the Second Statement severed the two such that the Second
    Statement took place after a fresh start.

[32]

I accept the appellants submission.  To explain
    why, I begin by considering
Plaha
and the legal test that it
    established.  I then review the trial judges reasons to show that she did not
    decide whether the Second Statement was tainted using the
Plaha
test. 
    Thereafter, I apply the
Plaha
test to the present case and show why the
    Second Statement was tainted.  Finally, I explain why no fresh start occurred
    in this case.


Plaha



[33]

In
Plaha
, the accused was charged with the
    murder of his wife.  He was detained following the killing.  During his interrogation
    by the police, the accused made five statements.  The trial judge found that the
    first, second and third statements had been obtained in violation of the
    accuseds right to counsel.  He excluded those statements.  He also excluded
    the fifth statement on the basis that it was involuntary.

[34]

However, the trial judge admitted the fourth statement
    (the impugned statement), which the accused made after consulting with
    counsel.  At the time that the impugned statement was made, the interviewing
    officers did not make mention of the accuseds earlier statements.  However,
    they failed to tell the accused that he was not obliged to speak with them and
    that nothing he had already said to the police should in any way affect his
    decision to speak to them at that time.

[35]

The trial judge found that the impugned
    statement was not obtained in a manner that infringed the accuseds right to
    counsel and was not tainted by his previous statements.  The accused was
    convicted.  He appealed to this court.

[36]

This court allowed the appeal.  It held that despite
    the impugned statement having been made after the accused had spoken with
    counsel, because of the breaches of the accuseds right to counsel that
    occurred prior to that consultation, the impugned statement was tainted and
    should have been excluded under s. 24(2) of the
Charter
.

[37]

Doherty J.A., writing for the court, explained
    that if the impugned statement was considered in isolation from the earlier
    statements, there was no
Charter
violation and, hence, no question of
    excluding it under s. 24(2).  However, the impugned statement could not be
    considered in isolation.  Its admissibility had to be resolved under s. 24(2)
    of the
Charter
:
Plaha
, at para. 42.

[38]

Doherty J.A. explained that there are two
    components to the s. 24(2) analysis.  The first is a threshold requirement: was
    the impugned statement obtained in a manner that infringed a
Charter
right? 
    If that threshold is crossed, one turns to the second evaluative component of
    s. 24(2) to determine whether the admission of the impugned evidence would
    bring the administration of justice into disrepute:
Plaha
, at para. 44.

[39]

A generous approach is to be taken to the
    threshold issue. As Doherty J.A. explains at para. 45 of
Plaha
:

A causal relationship between the breach and
    the impugned evidence is not necessary. The evidence will be obtained in a
    manner that infringed a
Charter
right if on a review of the entire
    course of events, the breach and the obtaining of the evidence can be said to
    be part of the same transaction or course of conduct. The connection between
    the breach and the obtaining of the evidence may be temporal, contextual,
    causal or a combination of the three. The connection must be more than tenuous:
R. v. Goldhart
(1996), 107 C.C.C. (3d) 481 (S.C.C.), at 492-497.

[40]

A temporal connection between the
Charter
breach
    and the subsequent obtaining of a statement will usually suffice to bring the
    statement within the ambit of s. 24(2).  The measurement of the temporal
    connection is more than simply counting the minutes or hours between the two. 
    Events that occur during the time interval can colour the significance of the passage
    of time:
Plaha
, at paras. 48-49.

[41]

Doherty J.A. found that the temporal connection
    in
Plaha
was made out.  The accused made the impugned statement some six
    and a half hours after the last violation of his right to counsel.  The mere
    ticking of the unheard clock could not distance the impugned statement from
    the earlier events because during the intervening period, the accused had been
    sitting by himself in a small interview room and was under the total control
    of the authorities:
Plaha
, at para. 49.

[42]

He also found that there was a contextual
    connection between the impugned statement and the earlier ones; the second,
    third and fourth statements were taken in the same place, by the same two
    police officers, using the same approach:
Plaha
, at para. 51.


The trial judge did not
    apply the
Plaha
test


[43]

The Crown submits that because counsel argued
Plaha
before the trial judge and the judge is presumed to know the law, this
    court should assume that the trial judge applied the correct legal test.  I do
    not accept this submission for three reasons.

[44]

First, the trial judge stated that the
voir
    dire
was to determine the voluntariness of the statements of the
    co-accused (Original Ruling, at para. 45), even though defence counsel for the
    appellant had conceded that voluntariness was not in issue in respect of the
    First and Second Statements and had framed his application exclusively in terms
    of the
Charter
.

[45]

Second, in determining whether the Second
    Statement was tainted, the trial judge referred only to
R. v. I. (L.R.) and
    T. (E.),
[1993] 4 S.C.R. 504, which addresses the admissibility of
    statements under the common law rules relating to confessions.  The trial judge
    did not set out or allude to the
Plaha
test for determining whether,
    when the police have obtained a statement in violation of s. 10(
b
), and
    the suspect gives a second statement after having consulted a lawyer, the
    second statement was obtained in a manner that infringed the
Charter
.

[46]

Third, the trial judges analysis focused
    entirely on whether the Second Statement was causally linked to the First
    Statement, and gave no consideration to the temporal or contextual connections
    between the two statements.

[47]

As para. 45 of
Plaha
(set out above) makes
    clear, a causal relationship between the breach and the Second Statement was
    not necessary.  However, the trial judge had to determine whether there was a
    temporal, contextual or causal link, or some combination of all three, between
    the First and Second Statements such that the Second Statement could be said to
    be part of the same transaction or course of conduct.  The sufficiency of the
    connection between the
Charter

breach and the subsequent statement could
    be determined only by a case-specific factual inquiry:
Plaha
, at paras. 45 and 47.  The trial
    judge did not undertake such an inquiry.

T
he
Plaha
test applied
    to this case

[48]

In the present case, after the appellant
    expressed a wish to see a lawyer, PC Armas continued to question the appellant. 
    His failure to hold off further questioning until the appellant had spoken to
    counsel was a breach of the appellants s. 10(
b
) rights:
R. v.
    Prosper
, [1994] 3 S.C.R. 236, at p. 269.

[49]

Thus, in accordance with
Plaha
, to decide
    whether the Second Statement was tainted, the court must review the entire
    course of events from the breach to the Second Statement to determine whether
    the Second Statement can be said to be part of the same transaction or course
    of conduct.  In its review, the court must consider the connection between the
    breach and the obtaining of the Second Statement.  The connection may be temporal,
    contextual or causal, or some combination of the three but it must be more than
    tenuous (
Plaha
, at para. 45).

[50]

In my view, the temporal and contextual
    connections between the First and Second Statements bring the latter within the
    ambit of s. 24(2).

[51]

In the present case, there was a shorter
    separation in time between the appellants two statements than there was in
Plaha
.
     In
Plaha,
six and a half hours passed between the earlier statements
    and the making of the impugned statement.  In this case, the Second Statement
    was made four hours after the First Statement.  And, just as in
Plaha
,
    apart from the brief period of his telephone conversation with duty counsel,
    the appellant passed his time between the making of the two statements under
    the total control of the authorities.  Thus, the passage of a few hours between
    the breach and the Second Statement could not distance the latter from it.

[52]

As
Plaha
indicates, a temporal connection
    between the
Charter
breach and the subsequent obtaining of a statement
    is usually sufficient to bring the statement within the ambit of s. 24(2):
Plaha
,
    at para. 48.

[53]

In any event, in my view, there is also a close
    contextual link between the appellants two statements.  From the appellants
    perspective, DC Abreus interrogation was a continuation of PC Armas earlier
    questioning.  Although DC Abreu never confronted the appellant with his
    statement to PC Armas, the appellant noted several times that he was repeating
    what he had already told the police (i.e., PC Armas).

No Fresh
    Start

[54]

The police can make a fresh start by clearly
    severing their subsequent interrogation from the earlier
Charter

breach:
R. v. Wittwer
, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 3.  The Crown
    contends that the Second Statement was made following just such a fresh start. 
    In support of this contention, the Crown points to the following: the appellant
    received legal advice from duty counsel before the interview in which he gave
    the Second Statement; the appellant was given a further caution before the
    Second Statement was made; different officers were involved in the interview
    that led to the Second Statement than were involved when the First Statement
    was made; and, the Second Statement was given without the interviewing officer
    making reference to the First Statement.

[55]

I do not agree that a fresh start occurred in
    this case.

[56]

An accuseds consultation with counsel can have
    the effect of severing a subsequent statement from an earlier breach of the
    right to counsel but it does not automatically immunize the subsequent
    statements:
Plaha
, at para. 47.

[57]

I acknowledge all of the following: the
    appellant received legal advice after the First Statement and before he made
    the Second Statement; the appellant told DC Abreu that he was aware of his
    right to silence and that duty counsel had told him not to speak to police; the
    appellant was aware of the charges that he faced throughout; during the
    interview, DC Abreu affirmed the appellants right to silence; and, DC Abreu did
    not refer to the appellants First Statement during his interview with the
    appellant.

[58]

However, just as in
Plaha
, in the present
    case the police knew or ought to have known that the First Statement was taken
    in violation of the appellants s. 10(
b
) rights and would not be
    admissible.  Had they hoped to obtain a statement free of the possible effects
    of the earlier breach, they should have followed the clear guidance given in
    para. 53 of
Plaha
and:

made it clear to the [appellant] that he was
    not obliged to say anything to them
and more importantly, that his decision
    whether to speak with them should not be influenced by anything he had already
    said to them
. [Emphasis added.]

[59]

While DC Abreu did tell the appellant that he
    was not obliged to say anything to them, he did not tell the appellant that his
    decision whether to speak with them should not be influenced by anything he had
    already told the police (the secondary caution).

[60]

This courts decision in
R. v. Woods
,
    2008 ONCA 713, 79 W.C.B. (2d) 753 shows that a secondary caution will not
    always be necessary to prevent the tainting of a later statement.  However,
    the facts of
Woods
are materially different from those in the present case.

[61]

In
Woods
, the appellant made an initial
    statement to the police in similar circumstances to those of the present case. 
    The appellant answered questions put to him while he was in the police cruiser
    on the way to the police station, in violation of his s. 10(
b
) rights.  At
    the time he made the initial statement, the appellant was under arrest for
    assault and weapons charges.

[62]

When the appellant arrived at the police
    station, he was taken to an interview room and told that he was now charged
    with murder.  The police made it clear that he was not obliged to speak to
    them.  However, the police did not give the appellant a secondary caution.

[63]

In the four-hour period that followed the
    appellants arrival at the police station, he spoke with three different lawyers
    for a total of more than 50 minutes before making his second statement.  During
    that period, the police made no effort to question the appellant except about
    the victims next-of-kin.

[64]

In short, in
Woods
, the second
    statement was made more than six hours after the appellant was advised that he
    faced new charges and after he had extensive consultation with three different
    lawyers.  This court held that the secondary caution was not required in that
    case because the connections between the initial statement and the later
    statement were so weak.

[65]

By contrast, in the present case, the charges
    that the appellant faced never changed and he spoke with duty counsel for only between
    four and five minutes. For the reasons already given, the temporal and
    contextual connections between the First and Second Statements were not weak.

[66]

Thus, in my view, the Second Statement was not
    made following a fresh start.

ISSUE #2    Exclusion of the Statements under
    s. 24(2) of the
Charter

[67]

Having found a sufficient connection between the
    First Statement and the Second Statement, the court must assess and balance the
    factors that the Supreme Court of Canada identified in
R. v. Grant
, 2009
    SCC 32, [2009] 2 S.C.R. 353, in order to determine whether to exclude the
    statements under s. 24(2).

[68]

Where a trial judge has considered the proper
    factors, appellate courts should accord considerable deference to the trial
    judges ultimate determination:
Grant
, at para. 86.  In this case, such deference
    is not owed to the trial judges s. 24(2) analysis because she failed to
    consider the s. 10(
b
) violation of the appellants rights by PC Armas
    and proceeded on the erroneous basis that the Second Statement was not tainted
    by the appellants earlier utterances to PC Armas.

[69]

In my view, all three
Grant
factors
    favour exclusion of the appellants statements to the police and, accordingly, I
    would exclude them.  In reaching this conclusion it bears repeating that, as a
    matter of practice, courts tend to exclude statements obtained in breach of the
Charter
on the ground that their admission would bring the
    administration of justice into disrepute:
Grant
, at para. 91.

i.

Seriousness of the
Charter
-infringing state
    conduct

[70]

Under this factor, the court is to consider the
    seriousness of the state conduct that led to the breach, including whether the
    police demonstrated a wilful or reckless disregard of
Charter
rights:
Grant,
at para. 74.

[71]

The police obligation to hold off questioning
    detainees who have requested a consultation with counsel is firmly established
    law of long-standing:
R. v. Manninen
, [1987] 1 S.C.R. 1233, at p. 1242;
R.
    v. Prosper
, [1994] 3 S.C.R. 236, at p. 269;
R. v. Taylor
, 2014 SCC
    50, [2014] 2 S.C.R. 495,

at para. 26.

[72]

The First Statement was made in 2011, at which
    time PC Armas should have been well aware that he was obliged to hold off
    questioning the appellant once the appellant indicated that he wished to
    consult counsel.  By continuing to question the appellant, in my view, PC Armas
    demonstrated either a wilful or reckless disregard of the appellants
Charter
rights.

[73]

The preservation of public confidence in the
    justice system requires that the police adhere to the
Charter
in
    obtaining statements from a detained accused:
Grant
, at para. 93.

[74]

Accordingly, the first
Grant
factor
    strongly favours exclusion.

ii.       Impact
    on the appellants
Charter
-protected interests

[75]

This factor is concerned with the interests
    engaged by the infringed right and the degree to which the violation impacted
    on those interests:
Grant,
at para. 77.

[76]

At para. 95 of
Grant
, the majority explains
    that the detainees right to make a meaningful and informed choice whether to
    speak, the related right to silence and the protection against testimonial
    self-incrimination are rights that protect the individuals interest in liberty
    and autonomy.

[77]

As in
Plaha
, it cannot be assumed that
    the appellant would have made the Second Statement had he not already given
    substantially the same account in the First Statement in violation of his s.
    10(
b
) rights.

[78]

Accordingly, this factor also militates in
    favour of exclusion of the statements.

iii.

Societys interest in an adjudication on
    the merits

[79]

At para. 97 of
Grant
, the majority
    explained the inquiry to be conducted under the third factor as follows:

The third inquiry focusses on the public interest
    in having the case tried fairly on its merits.  This may lead to consideration
    of the reliability of the evidence.  Just as involuntary confessions are
    suspect on grounds of reliability, so may, on occasion, be statements taken in
    contravention of the
Charter
.  Detained by the police and without a
    lawyer, a suspect may make statements to the police that are based more on a
    misconceived idea of how to get out of his or her predicament than on the
    truth.  This danger, where present, undercuts the argument that the illegally
    obtained statement is necessary for a trial of the merits.

[80]

In this passage from
Grant
, the Supreme
    Court explains that a suspect detained by the police and without a lawyer may
    make statements based on a misconceived idea of how to escape their
    predicament, rather than on the truth of those statements.  Where that danger
    is present, as indicated in the foregoing quotation from
Grant
, it undercuts
    the argument that admission of the statements is necessary for a trial of the
    merits.

[81]

In the present case, the First Statement was
    taken in contravention of the appellants
Charter
rights and the Second
    Statement was tainted by the First Statement.  Thus, the danger described in
    para. 97 of
Grant
is present, with the result that there is a very real
    concern about the reliability of the statements.

[82]

Further, and in any event, the Crown was not
    relying on the Second Statement for its truth.  It sought to have the Second
    Statement admitted so that it could establish its falsity in support of an inference
    of consciousness of guilt. That inference was contested because, while the
    appellant acknowledged that he had lied to the police, he denied having done so
    in order to conceal his guilt.  In the circumstances, it seems self-evident
    that the Second Statement was not reliable within the meaning of the third
Grant
factor.

[83]

Finally, the statements were not necessary for a
    trial on the merits.  This point is most clearly demonstrated by that fact that
    the Crown never sought to have the First Statement admitted and, on appeal, argues
    that the proviso should apply even if the Second Statement is excluded.

Conclusion

[84]

Accordingly, all three factors favour exclusion
    of the Second Statement.

ISSUE #3    The Proviso

[85]

The Crown submits that even if the Second Statement
    is excluded, the curative proviso in s. 686(b)(iii) of the
Criminal Code
should apply because the overwhelming circumstantial case against the appellant
    inevitably would have led to a conviction.

[86]

I do not agree.

[87]

In
R. v. Sekhon
, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53, Moldaver J.,
    writing for a majority of the
Supreme Court, stated:

As this Court has repeatedly asserted, the
    curative proviso can only be applied where there is no reasonable possibility
    that the verdict would have been different had the error . . . not been made (
R.
    v. Bevan
, [1993] 2 S.C.R. 599, at p. 617, affd in
R. v. Khan
, 2001
    SCC 86, [2001] 3 S.C.R. 823, at para. 28).  Flowing from this principle,
    this Court affirmed in
Khan
that there are two situations where the use
    of [the proviso] is appropriate: (1) where the error is harmless or trivial; or
    (2) where the evidence is so overwhelming that, notwithstanding that the error
    is not minor, the trier of fact would inevitably convict (paras. 29-31).

[88]

The admission of the Second Statement cannot be
    said to be a harmless or trivial error.  The appellant testified at trial and
    his credibility was in issue.  His acknowledged lies to the police would have
    affected the jurys assessment of his alibi.  While the Crowns case against
    the appellant was strong, in the circumstances, it cannot be said that notwithstanding
    the error, the trier of fact would have inevitably convicted.

[89]

Accordingly, this is not an appropriate case for
    the application of the curative proviso.

DISPOSITION

[90]

For these reasons, I would allow the appeal,
    quash the convictions and order a new trial.

Released: March 2, 2017 (K.F.)

E.E. Gillese J.A.

I agree. K. Feldman J.A.

I agree. S.E. Pepall J.A.


