SUPREME COURT OF NOVA SCOTIA Citation: R. v. Finbow, 2017 NSSC 291. Her Majesty the Queen. Darren Smalley, Simon Radford, and Joshua Finbow

Transcription

1 SUPREME COURT OF NOVA SCOTIA Citation: R. v. Finbow, 2017 NSSC 291 Date: Docket: CRH, No Registry: Halifax Between: Her Majesty the Queen v. Darren Smalley, Simon Radford, and Joshua Finbow Decision Voir Dire #1 Restriction on Publication: s Editorial Notice: Judge: Identifying information has been removed from this electronic version of the judgment. The Honourable Justice Patrick J. Duncan Heard: February 27, 28, March 1, 2, April 19, 25, May 1, 17, June 2, 13, and September 15, 2017, in Halifax, Nova Scotia Counsel: Eric Taylor and Scott Morrison, for Her Majesty the Queen Ian Hutchison, for the Defence (Darren Smalley) Mark Knox Q.C. and Michael Potter, for Defence (Joshua Finbow) David Bright Q.C. and Geoff Newton for Defence (Simon Radford)

2 Order restricting publication sexual offences (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, , , , , 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

3 Page 2 By the Court: Introduction [1] Joshua Finbow is a member of the British Navy. He was a member of that service s hockey team when it participated in a naval hockey tournament in Halifax, in April L. A. complained to the Halifax Regional Police that she was sexually assaulted by Mr. Finbow, among others. The investigation was re-assigned to the Canadian Forces National Investigative Service (CFNIS). [2] On April 16, 2015, Mr. Finbow was arrested and transported to the offices of the Canadian Forces National Investigative Service located on Hollis Street in Halifax. He was interviewed by, and provided a statement to, CFNIS investigator Master Corporal James Biso. The Crown seeks to admit the statement into evidence at trial. The accused objects and submits that it should be excluded from evidence. The Charges [3] Mr. Finbow is charged jointly with Darren Smalley and Simon Radford that they did on or about the 10 th day of April 2015, at or near Shearwater, in the County of Halifax, in the Province of Nova Scotia commit a sexual assault causing bodily harm upon L. A., contrary to section 272(2)(b) of the Criminal Code; and further that they did commit a sexual assault upon L. A. with one or more persons, contrary to section 272(2)(b) of the Code. Issues Issue 1: Were the accused s rights guaranteed by section 10(b) of the Canadian Charter of Rights and Freedoms violated? In particular, were any or all of the following rights violated: (a) The right to consult counsel without delay (b) The right to consult counsel in private (c) The right to counsel of choice (d) The right to counsel and failure to comply with section 36 of the Vienna Convention on Consular Relations

4 Page 3 Issue 2: Was the accused s right to silence guaranteed by section 7 of the Charter of Rights violated? Issue 3: If a violation of the accused s Charter Rights is found then what is the appropriate remedy under section 24 of the Charter? Issue 4: Was the accused s statement to police voluntary? Issue 1(a): The right to consult counsel without delay [4] The accused submits that the police failed in their obligation under section 10(b) of the Charter to provide him with his right to counsel without delay. Facts [5] On the morning of April 16, 2015, a team of police officers was tasked to go to CFB Shearwater, Warrior Block residence, in Dartmouth, to arrest four British nationals in relation to an allegation of sexual assault. The operational plan called for the officers to arrive on scene and wait for a Feeney Warrant to be issued that would permit them to enter the premises occupied by the suspects. Those suspects included the three co-accused in this matter, Mssrs. Finbow, Smalley and Radford. [6] MCpl. Derek Chase is a member of the Canadian Forces National Investigative Service (NIS) and he was assigned with then Sergeant, now Warrant Officer, Darren Carter to arrest Joshua Finbow. These officers left the NIS office on Hollis Street in Halifax at 9:05 a.m. and arrived at Warrior Block at approximately 09:20 a.m. [7] Mr. Finbow, and the other suspects, exited the residence building before the Feeney Warrant arrived. MCpl. Chase testified that at 9:37 a.m. he approached and arrested Mr. Finbow for sexual assault. He handcuffed the accused and placed him in the back seat of an unmarked police vehicle. Once in the car, WO Carter read Mr. Finbow his rights to counsel and caution, from a fold up card. Mr. Finbow indicated that he did want to consult counsel, although MCpl. Chase could not recall Mr. Finbow s exact response. He believed the accused understood what was being read to him.

5 Page 4 [8] WO Carter testified to providing the right to counsel: Q. Okay. So what happens once he's placed in the vehicle? A. Once he's placed in the vehicle, I sat in the front passenger seat and I turned to the left and I read from my caution-rights to counsel card. Q. Okay. A. To Mr. Finbow. Q. Okay. And do you have that same card with you here in Court today? A. Yes, I do. Q. Okay. I'm going to ask you to produce it and to read to us slowly and exactly what you read to Mr. Finbow, and where possible if you could describe to us his responses to anything that you may have read to him. Just take your time, okay? A. Okay. So I read the right to counsel Criminal Code offences only. The wording here says, "I am arresting you," but I replaced it with: "You're being arrested..."... because Corporal Chase was the arresting officer... "... for sexual assault. It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a Legal Aid lawyer. If you are charged with an offence, you may also apply to the provincial Legal Aid plan for assistance." And I provided the number or as a toll-free number... Q. Okay. "... that will put you in touch with provincial Legal Aid duty counsel for free legal advice right now. Do you understand?" A. And he indicated he understood. Q. Okay. So are you saying that Mr. Finbow indicated that he understood? A. Yes. And, "Do you wish to call a lawyer now?" And when I explained that to him, "Do you wish to call a lawyer now," I advised him that our CFNIS office is located at...

6 Page 5 Q. Okay. So you read from the card. A. Yes. Q. Did he respond to you after you read from the card? A. He said yes. He said he'd like to talk to a lawyer. Q. Okay. Was there any more reading from the card that happened at that time? A. I basically explained the now part first, and then I also read him the police caution. Q. Okay. So sorry, just to make... A. Sorry. Q. Is there anything else on the card that you read to him? A. Yes. Q. Okay. Let's keep going with the card. A. I also read him a caution that basically read: "Before you say anything relating to any charge which has been or may be preferred against you, you're advised that you're not obliged to say anything. But anything you say may be taken down in writing or recorded by other means or both, and may be used as evidence. Do you fully understand this warning?" And he indicated that he understood... (inaudible). Q. Okay. Any more reading from the card or responses? A. No. Q. Was there anything that you said at that time additional to what is written on the card? A. Yes. As I was saying with the... when I mentioned "Do you want to call a lawyer now? -" I explained the process that was going to have to take forward, that basically we're going to be... our office is located at 1310 Hollis Street in Halifax. We're going to be driving to that building. Once we get to that building, we're going to enter the Duty Counsel Room so you can be afforded privacy and a full list of lawyers if you wish to talk to counsel.

7 Q. Okay. And did Mr. Finbow say anything to you after you said those words? A. No. Q. And again, sorry, what was his response when you were asking him if he wished to call a lawyer? A. He indicated he wanted to talk to a lawyer. Q. Okay. Now did Mr. Finbow appear to understand what you had read to him and said to him? A. Yes. Q. Did he do anything to raise some concerns to you that he didn't understand what had been said to him? A. No. Q. Okay. Did you give any consideration to allowing him access to a lawyer in the van? A. No, I didn't. [9] In cross-examination WO Carter expanded upon this testimony: Q. I just wanted to make sure that I heard that correctly. "Right now," that's part of the card, and that's what you would have told Mr. Finbow. A. That's correct. That's what... (inaudible) Q. And then you would have explained to him that that's not really exactly what it means. A. I explained to him that after the arrest that we're going to be driving back to the CFNIS building or police station, I guess if you will. Q. Uh-huh. A. And there, he would be provided the full list of duty numbers and the privacy and a phone to call a lawyer. Q. Uh-huh. Did you tell him that it would be about an hour and a half before he spoke to duty counsel, or to a lawyer or... A. No, I didn't. Q. No. Page 6

8 Page 7 A. I had no... I didn't know how long it was going to take at that time. [10] Mr. Finbow was asked to exit the vehicle, which he did, and was then searched by MCpl. Chase. [11] The officers left Warrior Block, with Mr. Finbow in custody, at approximately 9:43 a.m. according to MCpl. Chase, (WO Carter estimated the time to be 9:40 a.m.). There was little conversation with Mr. Finbow en route to the office. They drove directly to the underground parking garage at the NIS Regional office at 1310 Hollis Street in Halifax, arriving at approximately 10:05 a.m. [12] The accused was taken by elevator up to the NIS offices where Mr. Finbow was placed in Interview Room B at 10:13 a.m. He sat in that room while waiting to contact legal counsel. [13] MCpl. Chase entered Room B at 10:48 a.m., followed shortly after by MCpl. Gouthro. MCpl. Chase provided Mr. Finbow with the number of the Nova Scotia Legal Aid duty counsel, and a list of lawyers provided by the British High Commission. Here is the exchange: MCpl Derek Chase: [10:48:15] All right, Josh, I m just going to let you know, we ve got a number here for a lawyer in Nova Scotia, Legal Aid. They re just duty counsel. They can help you out. You can choose to talk to those people or this is a list of lawyers prepared by the British High Commission. Basically, we ve been in contact with them. These are the lawyers that they ve -- MCpl Darryl Gouthro: [10:48:38] In Nova Scotia is in the back. They re not guaranteeing -- that these -- that they re going to be covering these people but these are people that have already made arrangements apparently to -- MCpl Derek Chase: So it s up to you. You can contact one of these ones or the local duty counsel so -- Joshua Finbow: MCpl Derek Chase: Joshua Finbow: MCpl Derek Chase: MCpl Darryl Gouthro: [10:48:54] I ll just go with duty counsel. Yeah? Yeah. Okay. Good enough. So the DLT talked to you about this already -- did he?

9 Page 8 Joshua Finbow: MCpl Darryl Gouthro: Joshua Finbow: MCpl Darryl Gouthro: Joshua Finbow: MCpl Darryl Gouthro: [10:49:04] Ah, not really. He said that we d get a list of lawyers that have been cause they would have been recommended by our [inaudible word]. Yeah. Yeah, he said whatever really. Whatever one you want, okay. [10:49:18] I m happy with a duty lawyer. Okay. [14] At 10:53 a.m., MCpl. Chase escorted Mr. Finbow to the Duty Counsel Room, across the hallway from Room B. The officer initiated a phone call to Duty Counsel, Roger Burrill, and then left Mr. Finbow to consult privately with the lawyer. Mr. Burrill requested to speak to the investigating officer and Mr. Finbow conveyed this to MCpl. Chase. [15] At approximately 11:00 a.m. MCpl. Chase spoke privately with Mr. Burrill at Mr. Burrill s request and then arranged for WO Seymour to speak by phone with Mr. Burrill. While this was taking place WO Carter watched Mr. Finbow, returning him to Room B for a few minutes at around 11:03 a.m. At 11:07, MCpl. Chase returned to Room B and moved Mr. Finbow back into the Duty Counsel Room to speak with Mr. Burrill. At 11:26 a.m. Mr. Finbow exited the Duty Counsel Room, having completed his call with counsel. [16] Mr. Finbow submits that the approximately 1 hour and 20-minute period between his arrest at 09:37 and his first conversation with counsel, at approximately 11:00 a.m., was excessive and infringed his right to counsel without delay. Legal Principles [17] Section 10 of the Canadian Charter of Rights and Freedoms states that: 10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefore; (b) to retain and instruct counsel without delay and to be informed of that right; and

10 (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. Page 9 [18] The Court-prepared summary of its decision in R. v. Taylor 2014 SCC 50, concisely sets out the fundamental legal principles underpinning the section 10(b) Charter right: Section 10(b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. The purpose of the s. 10(b) Charter right is to allow an arrested or detained individual not only to be informed of his other rights and obligations under the law but also to obtain advice as to how to exercise those rights. Access to legal advice ensures that an individual who is under control of the state and in a situation of legal jeopardy is able to make a free and informed choice whether to cooperate with the police. The duty to inform a detained person of his or her right to counsel arises immediately upon arrest or detention and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee's request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. Until the requested access to counsel is provided, it is uncontroversial that there is an obligation on the police to refrain from taking further investigative steps to elicit evidence. While the police are under no legal duty to provide their own cell phone to an arrested or detained individual, they nonetheless have a duty both to provide phone access at the first reasonable opportunity to avoid self-incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated. While s. 10(b) of the Charter does not create a right to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right to counsel. The burden is on the Crown to show that a given delay was reasonable in the circumstances.. Constitutional rights cannot be displaced by assumptions of impracticality. Barriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel. (emphasis added) [19] Applied to the facts of that case the Court held: An individual who enters a hospital to receive medical treatment is not in a Charter- free zone. Where the individual has requested access to counsel and is in custody at the hospital, the police have an obligation under s. 10(b) to take steps to ascertain whether private access to a phone is in fact available. In this case, one of the police officers admitted that at the hospital, he made a mistake and that he would have and could have given the accused the requested access if he had remembered to do so. Once at the hospital, it was 20 to 30 minutes before the hospital took any

11 blood from the accused, more than enough time for the police to make inquiries as to whether a phone was available or a phone call medically feasible. At no point did the police even turn their minds to the obligation to provide access. This is a case not so much about delay in facilitating access, but about its complete denial. This ongoing failure cannot be characterized as reasonable. [20] The burden that rests with the Crown was summarized this way: 28 But the police nonetheless have both a duty to provide phone access as soon as practicable to reduce the possibility of accidental self-incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated. While s. 10(b) does not create a "right" to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right to counsel at the first reasonable opportunity. (emphasis added) Page 10 [21] The application of this test can be contentious and depends upon the identification of, and weight to attach to, that evidence which is relevant to determining the reasonableness of the delay. A review of the caselaw shows that it is a fact driven analysis in which the actual time that passed is only one factor to be considered. [22] In R. v. Suberu 2009 SCC 33 at para. 42, the Court addressed the challenge: Sub-Issues 42 To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill-defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. (emphasis added) 1. Did the police inform the accused of his right to counsel without delay? 2. Did the police implement the accused s right to counsel without delay?

12 Analysis 3. If not, was the delay reasonable in the circumstances? Page If a violation of the section 10(b) right is proven, then what is the appropriate remedy? Sub-Issue 1: Did the police inform the accused of his right to counsel without delay? [23] Based on the evidence, I conclude that the obligation of the police to inform the accused of his right to retain and instruct counsel without delay was satisfied. Sub-Issue 2: Did the police implement the accused s right to counsel without delay? [24] I am not satisfied that the accused s right to counsel was implemented without delay. A 1 hour and 20-minute delay is not immediate. Sub-Issue 3: If not, was the delay reasonable in the circumstances? [25] The timeline of the delay in contacting counsel is not controversial: 09:37-09:43 a.m.: Mr. Finbow was arrested, informed of his right to counsel and searched, all in Dartmouth; 09:43-10:05 a.m.: Mr. Finbow was transported to the NIS office parking garage; 10:05-10:13 a.m.: Mr. Finbow was escorted to the NIS Office and apparently had to wait while Craig Stoner, PO2 Clowe and MCpl. Darren Gouthro cleared from Interview Room B, after which Mr. Finbow entered Room B. The length of that wait is not in evidence; 10:13-11:00 a.m.: Mr. Finbow waited in Interview Room B for the Duty Counsel Room to become available. [26] The investigators were alert to the obligation to provide the right to counsel. It was a matter that was discussed in the process of developing an operational plan for the arrest and detention of the suspects. While formulating the plan, WO Elton Seymour determined that the NIS offices could not accommodate all four suspects intended to be arrested, and so it was decided that two (Mssrs. Stoner and Finbow)

13 Page 12 would be brought to NIS offices and the other two would be taken to the Military Police Unit at Windsor Park, in Halifax. WO Seymour explained his reasoning: Q. Okay. What was the rationale for splitting the locations? A. The reason for splitting that is I initially... I had made contact with the RCMP and with Halifax Regional Police to try and facilitate having four arrested in one location. Q. Uh-huh. A. But that... it could not be accommodated. So the next best thing was to divide the four members into two separate locations so that they could have access to Legal Aid as soon as possible or legal advice as soon as possible. [27] WO Seymour testified that the RCMP and the Halifax Regional Police could not assist due to logistics and manpower. At that point the NIS team had sufficient members to manage four suspects so I infer that it was an issue that concerned the HRP and RCMP. He continued: Q. Okay. What about ensuring that right to counsel is provided in a timely fashion? Any consideration given to that? A. Yes, there was. And that was why we... that's why I initially made the attempts with the RCMP and HRP or Halifax Regional Police. But because that couldn't be facilitated, that's when the plan was to divvy them up so that at most, while one is speaking to legal counsel in either location, the other one will hopefully not have to wait too long again to speak to them. Q. Okay. So for the accused persons who were brought to the Hollis Street location, what was the plan, at the arrest briefing at least, in terms of facilitating their access to a lawyer? A. One at a time they would be escorted in, given the rights to speak to legal counsel in private. Q. Uh-huh. A. And upon completing that conversation, they would be escorted back to the foyer and the next person would be afforded the opportunity. (emphasis added) [28] WO Seymour sought to ensure what he felt was an appropriate facility for the exercise of the right to counsel. In doing this, he decided upon the Duty Counsel Room (DCR) as the solution, to the exclusion of any other:

14 Q. Okay. Had there been any consideration in terms of the right to privacy in terms of facilitating someone accessing a lawyer in some location other than the Duty Counsel Room at Hollis Street? A. No. In our facilities, we have one room that is designated as a clientsolicitor room. It is equipped with internet computer. It has the Yellow Pages. It has a telephone there. And it is set up... and that room is sanitized and designed for rights to counsel for the person that needs to apply and use these services. Q. Okay. Is there any other location in the Hollis Street location where you could have facilitated access to counsel? A. No, there is not, sir. Page 13 [29] WO Seymour was asked about using other rooms at the NIS offices. He had not turned his mind to that possibility. For example, when he was asked about the ability to monitor someone in Room B, he responded: Q. Okay. And again, I don't want you to guess at these questions if you don't know the answer, or any questions. Is it possible to leave the video on but turn the audio off? A. I'm not sure, sir. [30] Similarly, WO Carter and MCpl. Chase only considered the use of the DCR as the place in which Mr. Finbow would speak to counsel. MCpl. Chase was asked what the rationale was for that plan and he replied: Just for safety reasons, officer safety. As well as it's just where we talked about in the morning brief where we would handle that situation, that part of the process. He was asked whether he gave any thought to providing Mr. Finbow access to counsel in the vehicle. MCpl. Chase replied No and that It's just common practice for the police to do it behind closed doors. [31] Later he testified: Q. Did you ever consider whether or not to provide Mr. Finbow with access to a lawyer in another part of that facility? A. No. Q. You didn't consider it? A. I did not.

15 Q. Okay. Did you have any concerns about the time frame in which Mr. Finbow would have access to a lawyer? A. No. [32] WO Carter testified: Q. Okay. Now once you arrive, what was going to be done with respect to Mr. Finbow's right to counsel? A. There was... the Duty Counsel Room was there. Another individual that was arrested at Shearwater was already in the counsel room. Q. Uh-huh. A. So the plan was to keep him in that interview room until the first individual was finished, and then he would be provided an opportunity to talk to a lawyer. Page 14 [33] WO Carter was asked to specifically address the implementation question: Q. Did you have any concerns about the timeframe in which Mr. Finbow was going to speak to his lawyer? A. No. Q. Would it be possible that headquarters at the Hollis Street location to provide someone with access to a lawyer in another part of the office? A. No. Where the interview rooms were, it was all audio-video-recorded and the Interview Room B was recorded. There's no other offices in that area. And the rest of the office is pretty much an operation zone. So there's no other dedicated place for... to talk to a lawyer. [34] Three principle reasons were offered as to why the officers believed that Mr. Finbow could only consult with counsel while in the Duty Counsel Room: (i) Officer safety; (ii) The DCR was designated for this purpose in the plan developed by WO Seymour prior to the arrest. It had the computer for an internet based search of lawyers, a land based phone line, a phone book, and a window in the door to monitor Mr. Finbow while he was in the room. It was also thought to be sound proof. (iii) There was no other place in the NIS offices that was suitable for this purpose.

16 Page 15 Officer Safety [35] Officer safety is sometimes relied upon to justify the delay in implementing the right to counsel. On this issue, WO Seymour said: Q. When the officers were facilitating the arrests, were there concerns about officer safety? A. Yes. During my initial brief, that is always my concern. I am personally... I'm a use of force instructor. And every briefing I give regardless of the nationality of the person or who's involved, officer safety is always a primary concern. The vehicles used to transport, again there is no silent partner so that's always a concern. But officer safety is a number one concern, yes, that I would have. Q. What information did you have about members of the Royal Navy hockey team for effecting the arrests? A. We didn't have any specific background information. All we knew is that they were members of the British military. So based on that alone, we knew they would have some kind of... well, we could I wouldn't say assume, but we could make a good guess that they would have some kind of training if I compare their training to what a basic soldier would get in the Canadian Armed Forces. [36] MCpl. Chase testified that the only safety concerns he had were at the point of arrest, and that related to the number of people who were present at the time of the arrest. He stated that on arrest Mr. Finbow was very compliant, had a calm demeanour and was sober. [37] WO Carter testified that Mr. Finbow showed little or no emotion on his arrest. He expressed no concerns about officer safety in relation to Mr. Finbow s detention. [38] The evidence that officer safety issues constituted a reasonable barrier to the delay in implementation of Mr. Finbow s right to counsel is wholly inadequate. It was evident immediately upon his arrest that he was compliant and nonconfrontational. It is reasonable that the officers did not want to leave him alone in a van, that had no silent partner, to make a phone call to counsel. However, once at the NIS offices the differences in the ability to control Mr. Finbow at any place in that office were negligible. Throughout his time at the NIS offices there was no perceived or actual threat from Mr. Finbow. [39] The officers were as capable of ensuring their safety whether Mr. Finbow was in Interview Rooms A, B, the Board Room, or the Duty Counsel Room, being the

17 Page 16 most likely alternative locations for a consultation with counsel. The issue of monitoring him during a phone call is dealt with separately. A suitable space [40] There was a singular focus on access to counsel being effected according to WO Seymour s plan. While the delay from arrest to arrival at NIS offices was reasonable, the added time of waiting in the office rendered the entirety of the delay in access to counsel unreasonable. It is evident that none of WO Seymour, MCpl. Chase or WO Carter had the necessary appreciation of the significance of the obligation to provide immediate access to legal counsel. [41] The logic of the plan also shows its flaw. WO Seymour and the other officers saw it as a choice between immediate access to counsel and the implementation of the right to counsel in a pre-determined location, even if it resulted in delay. The plan opted to place a priority on location over immediacy. [42] WO Seymour presupposed that there would be a delay in implementing the right to counsel and that such delay was acceptable. His testimony signals this attitude when he said: while one is speaking to legal counsel in either location, the other one will hopefully not have to wait too long again to speak to them. [43] The advantages of the designated DCR in the mind of WO Seymour, were that it had a computer for an internet based search of lawyers, a land based phone line, a phone book, and a window in the door to monitor Mr. Finbow while he was in the room. It was also thought to be sound proof. He felt that there was no other place in the NIS offices that was suitable for this purpose. [44] As Suberu, supra, reminds us: Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter the police have a duty to facilitate that right immediately upon detention. [45] The question is whether, on the circumstances in this case, the evidence supports a conclusion that the barriers to the use of other spaces, were limitations that justified the delay.

18 Page 17 [46] I accept that it would be unreasonable to place a suspect in an active working space containing sensitive and personal information. I do not accept that the evidence establishes that there were reasonable barriers to the use of the Board Room #2008, Interview Rooms A or B as places for Mr. Finbow to have made a phone call to counsel. [47] The officers candidly acknowledged that they never considered these areas as possibilities at the time. Their testimony offered an after the fact justification for ruling out these areas. [48] The evidence does not rule out the availability of the Board Room during the period of 10:10 a.m. to 11:00 a.m. (while Mr. Finbow was waiting to access the DCR). Interview Room A was unoccupied while Mr. Stoner spoke to counsel in the DCR, being approximately 10:10 a.m. to 10:51 a.m. Interview Room B was already in use by Mr. Finbow and so available as a place to make a phone call. [49] There was no barrier to Mr. Stoner s and Mr. Finbow s ability speak to duty counsel concurrently. Megan Longley, of Nova Scotia Legal Aid explained that in cases of multiple accused seeking counsel simultaneously the policy is: A. So during business hours, it would typically be different lawyers usually from different offices, although not always, providing advice to multiple accused. [50] The essential things needed to enable Mr. Finbow to consult counsel were a phone, access to phone numbers for counsel, privacy, and security (for the officers and the suspect). [51] While access to a computer and the internet is an added resource, access to a phone book and phone numbers is traditionally sufficient to contact counsel and they are not location dependent. [52] The ability to find the contact information for counsel was not dependent on the use of the DCR. Once the question of implementation was engaged, Mr. Finbow stated his intention to speak to Duty Counsel, whose phone number was known to the police and which number(s) were posted on a sign in Room B. (In fact, MCpl. Chase placed the initial call to counsel for Mr. Finbow.) The phone book could also have been provided to him. Thus, the DCR was not necessary to the ability to locate counsel.

19 Page 18 [53] What evidence is there with respect to the lack of phone access in rooms other than the DCR? [54] There were no land based phones in Room A or Room B, but the evidence does not eliminate the possibility that these rooms were wired for one. [55] Board Room #2008 was described by MCpl. Chase (118-9): Q. And in terms of whether or not there's a telephone in this particular room. A. Yes, there is. Q. Okay. Can you describe that telephone to us? A. Yeah, it's a conference phone. It's not a typical phone. It has a speaker on it. You can't have, like, a receiver up to your ear and talk to anybody in private. It would be out loud so that everybody in the room could hear. [56] If there was a telephone jack for a conference phone and that phone was not considered to be a reasonable choice for access to counsel then an alternative, not discussed, was to switch phones to a standard phone. [57] Portable or cell phones were not explored as possible options for use in any of the three rooms. The evidence shows that cell phones were available. WO Seymour indicated that MCpl. Chase spoke with Duty Counsel Burrill on a cell phone which was handed to WO Seymour for their discussion about Mr. Finbow s case. A cell phone was seized from Mr. Finbow during the search of his person at Warrior Block. Whether it would have been appropriate to allow him to use that phone was not canvassed in evidence. [58] It is not at all clear that a phone could not have been provided to Mr. Finbow for his use in one of those three rooms. [59] As will be discussed in relation to the right to privacy argument, there were significant issues of sound transmission among Interview Rooms A and B and the DCR, to the point that none of the rooms were beyond criticism. To the extent that one room could be preferable to another for its soundproofing PO2 Kimberly Clowe testified, in relation to the use of Room B: Q. Is there something more soundproof that you know of about Room B than the Duty Counsel Room?

20 Page 19 A. Not that I'm aware of, sir. [60] Therefore, the DCR was not the only private location to make a phone call. [61] The DCR was preferred because it has a window that could be used to intermittently view the accused during his phone call. The evidence is that only the DCR permits a view into the room. [62] PO2 Clowe was part of the team that arrested Craig Stoner. Her testimony, given in relation to Room B summarizes the concerns: Q. Could someone... aside from using duty counsel, could someone use Room B to contact counsel? Would there be anything wrong with using that room? A. I think there is a problem with that, sir, because that is also video and audiorecorded. Q. Right. You know, though, having been in the monitor room, you can shut that down. You can shut down a camera. You can shut down a microphone in that room. A. Yes, you can, sir, yeah. Q. All right. So that takes care of that problem. What other problem would there be about using that room? A. The door itself doesn't have a window like the Duty Counsel Room does so that at any time we could monitor to make sure of the safety of the suspect that's inside, we can make sure that they're still... everything is okay. Q. You're concerned about that person harming themselves? Is that what it would be? A. Well, at any... yes, sir. Q. All right. They've been searched, but nonetheless they could use something. We all know that they could use something to harm themselves, is that correct? A. Yes, sir. Q. Yes, okay. But that could be monitored through the camera, couldn't it? Couldn't you watch from the monitor room on that camera, turn off the microphone, and keep an eye on that person? A. Yes, sir, I guess, yeah, it can be used.

21 Page 20 [63] As discussed previously, the officers had no basis for, nor actual, concerns about Mr. Finbow s compliance. There was no apparent threat. He was searched and so did not have access to a weapon. [64] There was no evidence to show why these rooms could not have been sanitized for use by Mr. Finbow to make a phone call. Interview Room A is shown and described in the evidence it is sparsely furnished. Interview Room B has two tables and a lamp that could easily have been removed and two much larger pieces of furniture unlikely to be useful as a weapon. There are no photos and minimal evidence as to what was in the Board Room that would render it unsuitable from a safety perspective. [65] Allowing that a visual monitoring of the suspect was necessary the evidence does not eliminate the possibilities that it could be conducted in rooms other than the DCR. PO2 Clowe testified that one could monitor Interview Room B and turn off the microphone. If that is accurate then presumably the same equipment would have the capacity to do that in Interview Room A. There is conflicting evidence as to whether the audio could be turned down and the recording stopped. [66] Sgt. Tyler Bruce-Hayes testified: Q. I just want to ask you about your experience with using the monitor room and the audiovisual equipment in the monitor room. When the equipment in the monitor room is on so that you can see video on the monitor from the camera in Interview Room B, can you watch that video without listening to the sound in that room? A. Yes. The only way you can do that is by turning down the volume on the TV, so... Q. Okay. And are you able to... while the monitor room is monitoring the camera in that room, are you able to turn off the recording equipment... the microphone recording? A. No. Q. You can turn down the volume but you cannot turn off the microphone? A. That's correct [67] The conflict as to whether the microphone could be turned off, or if the recording could be turned off is, in my view, unsettled. There is no question that the

22 Page 21 audio would have to be turned down so that the conversation would not be heard, and that any recording of a privileged conversation would have to be erased immediately. I believe that the officers would understand and do that if it was necessary. The problem is that no one considered these possibilities prior to or at the time of the detention of Mr. Finbow. [68] Board Room #2008 was described by MCpl. Chase (118-9): Q. Are there any AV capabilities for the meeting room? A. Pardon me? Q. Any audiovisual capabilities in the meeting room? A. Yes. Actually, we have a TV in that room that's also connected to Interview Room A and B, and you're able to listen in and watch the interviews taking place. Q. Okay. So if you're in 2008, there's technology that would allow you to hear what's going on in... A. Yes. Q.... in the interview rooms? A. Interview Room A and B. [69] The evidence does not indicate whether it is possible to use the audio-visual equipment to monitor inside the Board Room. The possibility was neither ruled in or out. [70] At a minimum, there is evidence that the officers could visually monitor the accused in Interview Rooms A or B by use of the video equipment. The evidence does not satisfy me that the need to monitor the accused was a reasonable barrier to implementing his right to counsel without delay. Conclusion [71] I conclude that Mr. Finbow s section 10(b) right to consult counsel without delay was violated. There was a 1 hour and 20-minute delay in implementing his right to counsel, thus it was not provided immediately, as is the constitutional right of an accused.

23 Page 22 [72] The onus of proving that the delay was reasonable is on the prosecution. I find that the explanations do not justify the delay in implementing Mr. Finbow s right to consult counsel. As stated in Taylor Barriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel. In my view, the officers made errors in judgement which caused the delay. They: Remedy 1. Did not appreciate the legal significance of the need for immediacy; 2. Failed to consider the total time elapsed from the point of detention until the implementation of the access to counsel; 3. Developed a plan that presumed a delay in at least one suspect being able to access counsel without considering other viable alternatives; and 4. Did not consider viable alternatives even when it should have been evident that it was taking too long to implement Mr. Finbow s right to consult with counsel. [73] I will address the appropriate remedy as part of my overall assessment of the alleged Charter violations in the arrest and detention of Mr. Finbow. Issue 1(b): The right to consult counsel in private Introduction [74] Attached as Appendix A to this decision is a copy of Exhibit VD1-1, being a floor plan of the National Investigative Services ( NIS ) offices where the accused was detained and interviewed. [75] The Duty Counsel Room (2018) ( DCR ) was designated for Mr. Finbow s phone call to consult legal counsel. Interview Room A (2017) was reserved by the officers for suspect interviews - the so-called hard interview room. It shares a common wall with the DCR. Room A and the DCR are relatively small rooms. Interview Room B (2015), the soft interview room, is generally used to conduct interviews of complainants and other witnesses. It is directly across the hall from the DCR.

24 Page 23 [76] Both Rooms A and B are equipped for audio and visual recording of interviews. The proceedings can be monitored from room 2013 which is designated for that purpose. The monitor can listen to the interviews through headphones or over a speaker. There is also a capability to monitor the interviews from the Meeting Room (also referred to as the Board Room or the Conference Room) - (2008). [77] Audio-visual recordings made in Interview Rooms A and B during the time that Mr. Finbow was in custody at the NIS offices have been admitted into evidence in this voir dire. Those recordings demonstrate that voices and other noises from the DCR, Interview Room A and the hallway outside these rooms could be heard in Interview Room B, while Mr. Finbow waited to consult with legal counsel in the DCR. There is also testimony that sound was transmitted between Interview Room A and the DCR during the time that Mr. Stoner and Mr. Finbow were detained in those areas. From time to time it is possible to hear the exact words being spoken in adjoining areas. [78] The accused alleges that the evidence supports the conclusion that he lacked privacy when consulting legal counsel and that therefore his section 10(b) Charter right to privacy was violated. Law [79] In R. v. MacKinnon 2013 NSSC 356, Wood J. was called upon in a summary conviction appeal to consider the principles applicable to an argument based on a lack of privacy. He wrote: 11 A party, such as Mr. MacKinnon, who alleges a violation of his right to counsel must prove that breach on a balance of probabilities. If a breach is established, the court must then consider whether there ought to be an exclusion of evidence pursuant to s. 24(2) of the Charter. This exercise involves the weighing of a number of competing factors. 12 The courts have recognized that the right to consult with counsel includes the right to do so in private. The Ontario Court of Appeal in R. v. Playford, [1987] O.J. No stated as follows: 31 In my opinion, the right to retain and instruct counsel without delay carries with it the right to do so in privacy. It would defy common sense to expect an accused person to instruct counsel properly when his instructions can be overheard by other persons and in particular by police officers. Such

25 lack of privacy might even seriously prejudice his ability to retain counsel. Retention of counsel usually requires some explanation by the accused of the circumstances which have led to his arrest The Court in Playford, supra, also recognized that even in the absence of evidence that the conversation was heard, there would be a violation of the right to counsel if the accused reasonably believed that his discussions could be overheard by police. This is illustrated by the following passage from the decision: 38 It seems clear that, so far as circumstances permit, an accused should not be questioned by police until he has had the right to retain and instruct counsel and that right is one that is to be afforded to him without delay in so far as circumstances permit. Privacy is a matter which is inherent in that right. In my opinion, proof that an accused could instruct and consult counsel in private only by whispering or by some other unusual device does not meet the test of privacy. An accused who believes that his conversation will be overheard by the police will of course be substantially prejudiced in making use of his right to retain and instruct counsel. That does not mean, of course, that every accused who has such belief no matter how unreasonable, can assert that his right to retain and instruct counsel has been infringed. Where the circumstances are such that an accused would reasonably believe that his conversation to retain or instruct counsel could be overheard by police, it cannot be said that his right to privacy has not been infringed unless it can be shown that he was in fact able to retain and instruct counsel privately. (emphasis added) Page 24 [80] Justice Wood reviewed examples of cases where a lack of privacy was put in issue and then considered the impact, if any, of an accused s failure to object or make their concerns known to the police in determining the reasonableness of the accused s belief that they could not retain and instruct counsel in private. See, at paras. 18 to 21, and citation from the cases of R. v. Burley, [2004] O.J. No. 319, and R. v. Ogbaldet, [2010] O.J. No [81] Justice Wood summarized the applicable law in this way: 22 Based upon these authorities, I believe the test to be applied in assessing an alleged breach of s. 10(b) of the Charter is whether the accused believes that their privacy has been infringed and whether this belief is reasonable in the situation. The use of the term "reasonable" carries with it an element of objectiveness. Subjective belief alone is not sufficient. Whether the accused has made an objection or expressed concerns about the privacy of their consultation with legal counsel is simply one of the circumstances to consider. Without other objective evidence to

26 Sub-Issues Analysis substantiate the claim, one can see where the absence of a complaint would be significant in assessing the reasonableness of the belief. 23 Where there is other objective evidence to support the belief that there is no privacy, the absence of a complaint is less significant. For example, in Ogbaldet, supra, the accused could hear voices from outside of the room. This was also the situation with Mr. Carroll. With Ms. Burns, there was no evidence that she had been told that the prisoner in the next cell had been moved. In all three of these cases there was a breach of the accused's s. 10(b) rights, even though there was no complaint or objection made at the time. 24 I have been referred to no cases which state that the failure to object and request privacy is always fatal to an allegation of breach of the right to consult legal counsel in private. I am satisfied that there is no such proposition in law. (emphasis added) Page Did Mr. Finbow, subjectively, believe that his right to privacy when consulting with counsel was infringed? 2. If so, is there objective evidence to support the belief that the consultation was not private? 3. If the accused establishes, on the balance of probabilities, that his right was infringed then what is the appropriate remedy? Sub-issue 1: Did Mr. Finbow, subjectively, believe that his right to privacy when consulting with counsel was infringed? [82] Mr. Finbow was subject to direct and cross-examination as to what he saw and heard from the point of his initial arrival in Room B until the commencement of his interview by MCpl. Biso in Room A. He also spoke to the impact of what he heard on his sense of privacy in consulting counsel and on his decision making when deciding to give a statement. [83] In cross-examination, Mr. Finbow described at some length that: while he was in Room B he could hear voices from the Duty Counsel Room during that time when Mr. Stoner was in that room;

27 Page 26 while he was in the Duty Counsel Room, between his conversations with Mr. Burrill and before they moved him back to Room B, he could get the gist of what was happening within the Interview Room between MCpl. Biso and Mr. Stoner; while he was in Room B, after speaking to Mr. Burrill, he could hear portions of MCpl. Biso s interview of Mr. Stoner, especially the comments and tone of MCpl. Biso. [84] In direct examination, Mr. Finbow stated that while he was in Room B, he could see and hear Mr. Stoner, when the latter was in the DCR with the door open. Mr. Finbow said that once the DCR door was closed he could still hear conversation coming from the DCR. In addition, he knew that officers were in the corridor between Room B and the DCR during this time: A. So I knew Craig was in there because I heard him getting a brief off of Officer Gouthro. The general chatter outside in the corridor was officers explaining where... or what he's doing on the phone or who... or what he's about to do on the phone. There was officers talking about certain lawyers, I believe. [85] On the same issue, he later said: Q. You indicated that you were taken to the soft room. You stayed on the sofa in that room. You knew Craig, Mr. Stoner, was in the duty-counsel room because you'd seen him. A. Yes. Q. And you'd also heard him, I believe, as well. A. Yeah. Q. You heard him getting a brief from Gouthro. A. Yes. Q. And that was a brief concerning what? A. Duty counsel, I believe. I didn't know if it was Gouthro or Biso. But I'd assume Gouthro because he was the arresting officer and... but I believe it was the duty-counsel brief on this is the computer, there's the phone. Q. All right. And it's your view that fairly soon after you go into interview room B, you're hearing that brief from one of the officers to...

28 Page 27 A. Yes. Q.... Mr. Stoner speaking about duty counsel. A. I believe so, yes. [86] In cross-examination, he agreed that the door to the DCR may have been open when he heard MCpl. Gouthro speaking and that sounds were muffled when the door was closed. He also acknowledged that he could not hear Mr. Stoner speaking to legal counsel. [87] Mr. Finbow was in the DCR on two occasions. The first was from approximately 10:53 a.m. to 11:03 am., and the second was from approximately 11:07 a.m. to 11:26 a.m. He testified that during the first of these he could hear part of the interview of Mr. Stoner: Q. Okay. And did you know where Craig was? Did you know what was going on with Craig? A. Yeah, so I got moved away from the duty-counsel room because I could hear Craig going in... Craig's interview going on. I heard Biso talking. And I believe it was Officer Chase again moved me into the soft room again, B. Q. Uh-huh, okay. Do you remember when you first heard Craig's interview? Were you in Room B before you went to duty-counsel, or were you in duty-counsel or... A. I believe I was in Room B when I heard Biso go into the room and introduce himself to Craig as the polygraph examiner. Q. Uh-huh. You think you recall hearing that? A. I recall hearing that, yeah. Q. I see, okay, all right. And then you told His Lordship that when you're in duty-counsel room, I believe before you're removed, I thought I heard you say you could hear the interview as well. A. Yeah. I would have been about in real terms four yards, four or five yards away from Officer Biso himself. So I could hear his deep voice going through the first part of the interview.

29 Page 28 [88] He testified that while in the DCR he could also hear the officers in the corridor outside the door to the DCR, and the effect it had on his consultation with counsel: Q. I know I'm jumping around a little bit. When you're in duty-counsel room, what could you hear? A. So I could hear the muffled sounds coming from next door in interview room A. I could hear... I believe it was Clowe at the door of the duty-counsel room talking to another officer, but I wasn't aware who that is, I believe, so in interview room A and the corridor. Q. In the corridor. A. Yes. Q. And is your duty-counsel room door, is it open or closed? A. It would have been closed at that point with the sliding window open, the shutter. Q. Okay. Do you know why you didn't express to Mr. Burrill these things that you were thinking about? A. I believe it was because I didn't have that rapport with him, and I didn't find trust that I was talking to an independent source as such. And I personally thought... remembering back to the time there, I thought that hearing Clowe would have an adverse effect and she could hear me as well. So, I didn't want to... I didn't want to say what had happened on... or say what I'd been through on the phone in that duty-counsel room. [89] He continued, describing what he heard when he returned to Room B after consulting counsel: Q. Uh-huh, all right. And can you... you talked about things earlier that you could hear. What are you hearing when you, you know, return to Room B before you go back to duty-counsel room, and what are you hearing when you're done with duty counsel completely and you go back to the waiting room? A. So I'm definitely hearing Craig's interview going on. However, it's through the walls itself or I'm pretty sure it came through the monitoring room on speakers. But I could hear and make out Biso talking to Craig in his interview. Q. Uh-huh. And how would you describe what you could hear?

30 A. It started off as a normal volume. And obviously towards the end, it was pretty... you could hear pretty clear what he was saying due to the raised levels in his voice. [90] On the matter of where the sound was originating he said: Q. And when you told His Lordship that some of which you heard might have been coming from I think you said a speaker in the monitor room... A. Yes. Q.... why did you say that? What caused you to get that impression? A. You can just tell through the feedback of the voice as well. It sounded like it was coming from a speaker. And the only ones around us was in the monitoring room. Page 29 [91] Prior to entering into the interview with MCpl. Biso, Mr. Finbow heard this conversation taking place outside Room B: A. Apart from one when I was getting shown that list. I was told that Craig was spilling the beans at the end of... at the end of Gouthro's involvement in that. And apart from that, that was the only thing that... that caused concern for that, that interview. Q. Yeah. Why did that cause concern to you? A. Because I knew the pressure that Craig was being applied with in the interview room. And I thought if he's spilling the beans with that, then I'm definitely just going to go in and try and have as calm an interview as possible. [92] He then discussed the interview and his thought process: Q. Do you recall going in for your interview with James Biso? A. Yes. Q. And had your thoughts about speaking to him, about speaking to the interviewer, had they changed at all between coming out of duty-counsel, going back into Room B having spoken to Mr. Burrill, and from that point waiting in that room before you go in to talk to Biso? A. No. I'd say they were... I'd kept the same thought of what I was going to do pretty much all the way through. I didn't take on much information at all from my duty-counsel talk.

31 Q. All right. Did you experience, encounter, hear anything while... before you go to Room A? Did anything come to you that impacted your decision to speak to Biso? A. I'd say the whole of Craig's interview. Q. The whole what? A. Of Craig's interview. Q. Craig's interview. A. Or Stoner's. Q. Okay, all right. And what could you hear? Could you hear Biso and Craig, or could you hear both of them in other words or one of them or... A. Yeah, I could hear both of them. I could hear Biso. I could make out what Biso was saying. But I could hear Craig's tone of voice. I couldn't understand what he was saying. I knew when Biso stopped talking, I heard another voice that would have been Craig's, but it obviously didn't go on for long between Biso shouting... Q. Uh-huh. A.... and talking Page 30 [93] Mr. Finbow s testimony, in some respects, does not conform to the recorded evidence. e.g. during cross-examination, he corrected the timing as to when he received the list of lawyers provided by the British government. He acknowledged his error without hesitation. There are other issues in the sequencing of events. [94] The Crown points out that despite the sensitivity of the microphone in Room B it did not record some of the conversations that Mr. Finbow says that he heard when in that room. The inference is that Mr. Finbow could not have heard some of the things that he said that he heard. [95] These matters raise legitimate challenges to Mr. Finbow s reliability, and possibly to his credibility. On the whole, I find that Mr. Finbow presented as trying to honestly convey the circumstances of his arrest, detention and the taking of his statement.

32 Page 31 Sub-Issue 2. If so, is there objective evidence to support the belief that the consultation was not private? [96] Any concerns that I may have had with Mr. Finbow s recollections have been mitigated by the substantial objective evidence of a highly inappropriate atmosphere that seriously compromised any expectation that he would have for privacy when consulting counsel. [97] The video evidence speaks for itself. It is clear that conversations, that took place outside of Interview Room B, could be heard to varying degrees in Room B. [98] There is other evidence that describes the issues of sound transmission throughout the areas where Mr. Finbow was held. [99] Craig Stoner testified to what he could hear when in the Duty Counsel Room: Q. Uh-huh, okay. And during your... you did have a call with a lawyer, is that correct? A. Yes. Q. All right. And can you tell His Lordship what if any noises, what if anything was going on around you outside of that room? A. I could hear people moving around. I heard the police officers talking to one another, and that was it. [100] MCpl. Biso is an experienced statement taker who interviewed both Mr. Stoner and Mr. Finbow. The recording in Room B was played for him in its entirety. He was able, from time to time, to identify voices of officers who are off camera. In some instances, he could relate what the officer s words were. [101] He agreed that this situation was not ideal. He said: Well, in the general aspects of it. It's not a desirable spot to have arrested people waiting. It's not built or designed for that. So the answer to your question is if I'm picked up in any way talking, yelling, or whatever, that is not ideal at all, in my opinion [102] He confirmed that the Room B recording picked up his conversation in Room A: Q. Okay. So we're listening to the... I guess the microphone from Room B. And what you're explaining is you're in Room A and you're doing the preamble.

33 And Mr. Finbow... perhaps you can hear it in Room B in this scenario in the courtroom. He can hear what you're saying in Room A. Right? A. Yes. Q. Okay. Is that something that you, before April 16th, were aware of? A. No. Q. And is knowing now that this occurred, he could hear you going through your preamble... and it's not just one... your preamble is not just one sentence. It's maybe a paragraph... a thick paragraph? A. Yes. Q. Yes. All right. Is that something you want someone who's going to be interviewed to hear? A. No. Page 32 [103] MCpl. Biso acknowledged yelling at Mr. Stoner during his interview, but that the sound transmission problem was greater than that issue: Q. And no one, until today, until you experienced it yourself, no one from the suite of offices that day told you that they've heard this. A. Not this specific. I did hear that my voice was heard, but my understanding it was probably the part where you call I was yelling that must have been what was picked up. I didn't realize that it was the preamble when I was talking like I'm normally talking. Q. So how could that... I mean how could that happen that the door is closed in Room A and you're not yelling? You're not yelling the preamble. There's nobody in there to be confrontational with. Correct? A. Yes. Q. Am I correct? A. Yes. Q. Does it make sense that someone in Room B could hear that? A. Well, we're hearing it from our own ears, so it is happening. Is that ideal? No. I'm not sure what answer you're looking for, but it has to make sense because we do hear.

34 Page 33 Q. Yeah. Well, doesn't it show how unsoundproofed this police office is? A. Yes. It's there. And, of course, being an interviewer, that is not ideal at all. Q. Okay. So you wouldn't be surprised if Mr. Finbow, when you are I'm going to say coming aboard Mr. Stoner, again in his interview, you wouldn't be surprised, if he's in Room B, that he could hear that too. A. Yes. Q. Because he... A. I wouldn't be surprised. [104] MCpl. Chase also testified to the sound transmission problems from Room A to the DCR: MR. KNOX: Okay. Had you to do this over again, you would, I assume, have checked Duty Counsel Room to see what could be heard in that room from what was going on in Room A. A. At that moment, I believe that... again, I could hear some ambient noise. However, I also wanted to afford Josh the opportunity to speak with a lawyer. That's our counsel room. That's where all the numbers are. That's where I just previously provided Roger Burrill the contact number. So he was the one who would be calling Josh in that room. I guess my main concern with this whole process is that I do wish that our... our rooms were more sound-proofed. However, the ambient noise I don't think would have distracted him to be able to concentrate on what duty counsel was offering him. [105] According to MCpl. Chase at least some of the officers were aware of the problem at the time: Q. Yeah. Did you tell Carter, you know, I just noticed or I've noticed since 11 o'clock this morning that there is an issue about noise travelling, either ambient noise through the walls and the ceiling... A. Mm-hmm. Q.... or noise coming from the speaker in the monitor room. A. I didn't say that to him, no. Q. Did you apprise him to anything about that topic? A. No, I... I think that it was general knowledge that there was ambient noise in the area.

35 Page 34 Conclusion Q. Mm-hmm. Why do you think that? A. Because I could hear it. Q. Yeah, I see. Okay, but you didn't converse with anybody else there - Clowe, Carter, Tyler Bruce-Harris (sic), Seymour, Gouthro - about this topic? A. I don't believe I did. Q. You'll agree it was pretty noteworthy when earlier you went in to do the sound check and you closed the door. A. Correct. [106] The objective evidence corroborating Mr. Finbow s concerns with respect to the ready transference of sounds throughout the area of Rooms A, B and the DCR is incontestable. [107] The degree to which Mr. Finbow could or could not make out the words spoken by various persons may mitigate to some degree what those words did to influence him, but it does not negate the fact that he could reasonably believe that his consultation with legal counsel was not private. [108] I conclude that it is more probable than not that officers standing immediately outside the DCR could hear the accused when he was speaking to counsel. That they did not seek to do so, or that they did not do so, does not impact on his reasonably held belief that they could do so. [109] Mr. Finbow has met the burden of proving on the balance of probabilities that his section 10(b) Charter right to privacy was violated. Remedy [110] I will address the appropriate remedy as part of my overall assessment of the Charter violations in the arrest and detention of Mr. Finbow.

36 Page 35 Issue 1(c): The right to consult counsel of choice [111] The accused submits that the police infringed his right to counsel of choice and thereby violated his right guaranteed by section 10(b) of the Charter. [112] WO Chase informed Mr. Finbow of his right to counsel at the time of the arrest. He testified that he told Mr. Finbow: It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a Legal Aid lawyer. If you are charged with an offence, you may also apply to the provincial Legal Aid plan for assistance." (emphasis added) [113] I am satisfied that Mr. Finbow understood that advisory which told him that he had a choice of counsel. [114] MCPL Chase discussed this with Mr. Finbow again, just before the accused went into the Duty Counsel Room: MCpl Derek Chase: [10:48:15] All right, Josh, I m just going to let you know, we ve got a number here for a lawyer in Nova Scotia, Legal Aid. They re just duty counsel. They can help you out. You can choose to talk to those people or this is a list of lawyers prepared by the British High Commission. Basically, we ve been in contact with them. These are the lawyers that they ve -- MCpl Darryl Gouthro: [10:48:38] In Nova Scotia is in the back. They re not guaranteeing -- that these -- that they re going to be covering these people but these are people that have already made arrangements apparently to -- MCpl Derek Chase: So it s up to you. You can contact one of these ones or the local duty counsel so -- Joshua Finbow: [10:48:54] I ll just go with duty counsel. [115] Taken by itself, it seemed to make Mr. Finbow s choice a binary one: duty counsel or one of the lawyers listed by the British High Commission. Other than this exchange, there is no evidence that a police officer suggested, directly or indirectly, that there were conditions or limitations attached to Mr. Finbow s right to contact counsel of his choice.

37 Page 36 [116] Mr. Finbow made his choice quickly and before MCpl Chase had finished his last sentence. There is nothing I observed in Mr. Finbow s language or demeanour to suggest that when he made that decision he did so because he believed that he lacked a genuine choice. [117] I am satisfied that Mr. Finbow was aware that he had the choice of counsel, and that he could use the computer, the phone book, or the list of lawyers provided by the British High Commission to locate a lawyer. He declined or did not exercise those options. Instead, he elected to consult with duty counsel. At one point, prior to consulting counsel, Mr. Finbow said I m happy with a duty lawyer (see para 13 of this decision). [118] There was another reference that Mr. Finbow was happy with the choice of duty counsel. The recording shows that when Mr. Finbow exited the Duty Counsel Room after speaking with Mr. Burrill, he said: MP Sgt. Darren Carter: [11:27:01] Were you happy with your advice or -- Joshua Finbow: MP Sgt. Darren Carter: Joshua Finbow: MP Sgt. Darren Carter: else? Joshua Finbow: [11:27:04] Kinda, yeah. I m happy, yeah. What s that? Yeah. You re happy. You didn t want to talk to anybody [No response heard] [119] His answer did not denote an unequivocal affirmation of his satisfaction with the advice he received. However, that does not speak to the choices of counsel that he was offered before the consultation. Significantly, WO Carter, after the consultation, asked Mr. Finbow whether he wanted to talk to anybody else. Mr. Finbow did not take up the officer s offer and so passed on this opportunity to choose someone else for further consultation. [120] The evidence satisfies me that while the police conduct during Mr. Finbow s detention at the NIS offices triggered issues in relation to implementation of the right to consult counsel without delay and in private, I find that there was no violation of the accused s right to counsel of choice. Objectively speaking, there is no basis upon which to conclude that his choice of counsel right was infringed.

38 Page 37 Issue 1(d): The Right to Counsel and Section 36 of the Vienna Convention on Consular Relations [121] Captain Kirsten Pilotte testified that consular access to the accused was permitted after he was arrested and processed. This has not been challenged. [122] The Crown takes the position that even if Mr. Finbow had been denied consular access there is no 10(b) Charter right flowing from such conduct. In post hearing submissions, counsel for Mr. Finbow conceded this point and acknowledged that Mr. Finbow is no longer seeking a remedy based on the provisions of the Vienna Convention. Issue 2: Was the accused s right to silence guaranteed by Section 7 of the Charter of Rights and Freedoms violated? [123] Mr. Finbow has submitted that his right to silence is encompassed in section 7 of the Charter of Rights and Freedoms and that the right was violated. [124] Section 7 of the Charter states: Everyone has the right to life, liberty and the security of the person and not to be deprived thereof except in accordance with the principles of fundamental justice. [125] The rights that section 7 speaks to were discussed by McLachlin J. (as she then was) in the case of R. v. Hebert [1990] SCR 151: 14 The appellant's liberty is at stake. Under section 7 of the Charter, he can only be deprived of that liberty in accordance with the principles of fundamental justice. The question is whether the manner in which the police obtained a statement from him violates that right. The answer to this question lies in an exploration of the underlying legal principles of our system of justice relevant to a detained person's right to silence. As Lamer J. stated in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 503:.... the principles of fundamental justice are to be found in the basic tenets of our legal system. (d) Conclusion on the Scope of the Right to Silence 68 The common law rules related to the right to silence suggest that the scope of the right in the pre-trial detention period must be based on the fundamental

39 concept of the suspect's right to choose whether to speak to the authorities or remain silent. Any doubt on the question is resolved by consideration of related rights protected by the Charter, by the Charter's approach to the question of improperly obtained evidence, and by the fundamental purpose of the right to silence and related procedural guarantees. In keeping with the approach inaugurated by the Charter, our courts must adopt an approach to pre-trial interrogation which emphasizes the right of the detained person to make a meaningful choice and permits the rejection of statements which have been obtained unfairly in circumstances that violate that right of choice. 69 The right to choose whether or not to speak to the authorities is defined objectively rather than subjectively. The basic requirement that the suspect possess an operating mind has a subjective element. But this established, the focus under the Charter shifts to the conduct of the authorities vis-à-vis the suspect. Was the suspect accorded the right to consult counsel? Was there other police conduct which effectively and unfairly deprived the suspect of the right to choose whether to speak to the authorities or not? 72 the approach I advocate retains the objective approach to confessions which has always prevailed in our law and would permit the rule to be subject to the following limits. 73 First, there is nothing in the rule to prohibit the police from questioning the accused in the absence of counsel after the accused has retained counsel. Presumably, counsel will inform the accused of the right to remain silent. If the police are not posing as undercover officers and the accused chooses to volunteer information, there will be no violation of the Charter. Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence. 79 Moreover, even where a violation of the detainee's rights is established the evidence may, where appropriate, be admitted. Only if the court is satisfied that its reception would be likely to bring the administration of justice into disrepute can the evidence be rejected: s. 24(2). Where the police have acted with due care for the accused's rights, it is unlikely that the statements they obtain will be held inadmissible. (emphasis added) Page 38

40 Page 39 [126] Justice Charron, writing on behalf of the majority in R. v. Singh 2007 SCC 48, discussed the scope of section 7: 36. On the question of voluntariness, as under any distinct 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. 37. Therefore, voluntariness, as it is understood today, requires that the court scrutinize whether the accused was denied his or her right to silence. The right to silence is defined in accordance with constitutional principles. A finding of voluntariness will therefore be determinative of the s. 7 issue. In other words, if the Crown proves voluntariness beyond a reasonable doubt, there can be no finding of a Charter violation of the right to silence in respect of the same statement. The converse holds true as well. If the circumstances are such that an accused is able to show on a balance of probabilities a breach of his or her right to silence, the Crown will not be in a position to meet the voluntariness test. (emphasis added) [127] Justice Charron adopted the statement of Hackett J. in distinguishing as between the right to counsel and the right to silence: 43 Under the Charter, the right to counsel, including an informational and implementational component, is provided for expressly. No such provision appears in respect of the right to silence. Hackett J. explained the reason for the difference quite well as follows: Although the right to counsel and right to silence are equally important rights, it does not follow that they will be protected in the same way as suggested in Guimond. The right to silence, by its very nature, is exercised differently than the right to counsel and in this respect, the right to silence and right to counsel are not the same. The exercise of the right to silence is within the control of an accused who has an operating mind and is fully informed of his or her rights, provided the conduct of the authorities do not take away his or her ability to choose. In contrast, the exercise of the right to counsel is not within the control of an accused in detention. Rather, it is dependant upon the police facilitating the exercise of that right. Consequently, it is clear that the police cannot continue to question an accused who asserts his or her right to counsel until they have helped him or her exercise that right. The "holding off" requirement in the case of the right to counsel is therefore not necessary in the case of the right to silence because the law recognizes an accused's free will and the ability of an accused to change his or her mind about whether or not to speak to the police. This change of mind can occur either as a result of personal reasons, or police persuasion that does not violate principles of fundamental justice

41 or deprive the accused of choice. (R. v. C.G., [2004] O.J. No. 229 (QL) (C.J.), at para. 93) (emphasis added) Page 40 [128] The position advocated by counsel for the accused relies largely on evidence of the atmosphere in the NIS offices during the time that Mr. Finbow was waiting to be interviewed. [129] In my consideration of Issue 4, I respond to the accused s argument that Mr. Finbow s statement was not given voluntarily. I have concluded for the reasons stated therein that the Crown has proven that the statement was given voluntarily, which effectively ends any argument that a section 7 Charter violation occurred, that is based upon the same evidence. I am not satisfied that the accused was deprived of his right to silence. Issue 3: Having concluded then that the rights of the accused as secured by section 10(b) of the Charter were denied, what is the appropriate remedy under section 24(2) of the Charter? Introduction [130] The appropriate remedy must reflect the cumulative effect of the two ways in which Mr. Finbow s Section 10(b) right to counsel were violated. In my view, one violation compounds the other. [131] The accused seeks the exclusion of his statement from evidence in the trial. The Crown disagrees. Law [132] Section 24 of the Charter provides: (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.

42 Page 41 [133] The framework for exclusion has been articulated by the Supreme Court of Canada in the case of R. v. Grant, 2009 SCC 32. The inquiry is objective and asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute. The focus is not only long term but also prospective. [134] Section 24(2) begins with the proposition that a violation of a Charter protected Right causes damage to the administration of justice and so the remedy is intended to ensure that evidence obtained through the breach does not cause further damage to the justice system. The focus is on societal systemic concerns and does not aim to punish the police or provide compensation to the accused. In considering section 24(2), the court must have regard to the following: 1. the seriousness of the Charter-infringing state conduct (i.e., admission may send the message that the justice system condones serious misconduct); 2. the impact of the breach on the Charter protected interests of the accused (i.e., admission may send the message that individual rights count for little); and 3. society's interest in the adjudication of the case on its merits. [135] The court must balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. (1) Seriousness of the Charter Infringing Conduct [136] The more severe or deliberate the state conduct that led to the violation the greater the need for the courts to dissociate themselves from the conduct through exclusion. State conduct varies on a spectrum from inadvertent or minor violations to evidence obtained through willful or reckless disregard of Charter rights. [137] The police are expected to know their obligations under the Charter and to fulfill them. In this case that included the duty to ensure that the accused had immediate access to counsel, and that he would be able to consult counsel in private. The police failed to fulfill these duties thus violating Mr. Finbow s section 10(b) Charter right.

43 Page 42 [138] The Canadian Forces National Investigative Service (CFNIS) is tasked to investigate serious crimes. It is composed of military police officers who have experience and training suited to this more specialized function. The officers responsible for the arrest and detention of Mr. Finbow are all members of that Service. [139] Captain Kirsten Pilotte has been employed by CFNIS since In 2015, she was the officer commanding for CFNIS Atlantic Region. She assigned the investigators to the current complaint and acted as their overall supervisor. She was not involved directly in the day to day investigative activities nor did she draw up the plan for the arrest of the accused persons. However, she did approve that plan. That plan, as discussed previously, was prepared by Warrant Officer Seymour, together with other senior NIS members. [140] Warrant Officer Elton Seymour joined CFNIS in 2012 and was the officer charged with preparing a plan to arrest, detain and interview the suspects. He has been with the Department of National Defence since [141] The officers charged with the arrest and detention of Mr. Finbow were: Master Corporal Derek Chase who has been a with NIS since He is a general investigator; and Warrant Officer Darren Carter (Sergeant in 2015), who has been with NIS since He was transferred to the Atlantic Region in 2010 to serve as the Regional Criminal Intelligence Coordinator. [142] Master Corporal James Biso was assigned the task of interviewing Mr. Finbow and Mr. Stoner. He has been a police officer since 1990, having worked for civilian and military police services. He has served as a general patrol officer and in General Investigative Services. By 2012 he was a member of the NIS, investigating sexual assault complaints. [143] I observe at the outset that there is no evidence that these officers consciously intended to violate Mr. Finbow s right to counsel. To the contrary, there was a common intention to ensure that Mr. Finbow had an opportunity to consult legal counsel in a suitable room with the necessary information to contact a lawyer for advice. I also note that there was no attempt to question Mr. Finbow while he waited to speak to counsel.

44 Page 43 [144] However, the errors made by the officers in this case are extraordinary having regard to the experience that they have. Some of these errors have been described previously. [145] Overall, the officers exhibited a demonstrable lack of appreciation for the legal significance of the need for, or what constituted, immediate access to counsel. They: Developed a plan knowing that it would create a delay for at least one suspect s opportunity to access counsel; Committed to the use of the Duty Counsel Room without considering other viable alternatives to reduce or eliminate the delay for Mr. Finbow to consult counsel; Failed to consider the total time elapsed from the point of detention until the implementation of the access to counsel, which turned out to be 1 hour and 20-minutes; Failed to consider the effects of the delay on Mr. Finbow having regard to the circumstances of his detention. i.e., the degree to which he was exposed to the ongoing discussions about the case that took place just outside of Room B. [146] Similarly, there was a complete failure by the attending officers to properly identify and correct sound transmission issues as among Interview Room A, Interview Room B, the Duty Counsel Room and the corridor outside these rooms, and possibly the room where the ongoing monitoring of interviews was taking place. [147] In addition, various officers carried on conversations that were heard by Mr. Finbow in the Duty Counsel Room and in Interview Room B. These rooms were small and in close proximity to each other. The conversations should not have been held where they could be heard. These included discussions about various defence counsel who might become involved in the matter. [148] These were the conditions which resulted in Mr. Finbow s right to privacy being violated. [149] The general explanation offered by the officers was that they had never had a situation like this before, that is, more than one suspect to interview at a time in that

45 Page 44 office. Further, they profess that they did not identify sound transmission as an issue at the time. [150] Therefore, the court is asked to conclude that any issues that occurred are not serious because they resulted from their lack of a prior experience with this set of circumstances, not from an intentional disregard for the accused s rights. Further, it is suggested that this was not a serious problem because, at least in the opinion of the officers, there was no actual breach of Mr. Finbow s ability to consult counsel in private. [151] With respect, I disagree with the prosecution s submissions. The video evidence demonstrates clearly that voices in Room A and in the corridor, could be heard in Room B while Mr. Finbow was there. It was more than just ambient, indecipherable sounds as some officers described it. This is corroborated by witness testimony. The level and sources of sound transmission would be self-evident to anyone in close proximity. [152] The significance of the problem is particularly highlighted by the test conducted while Mr. Finbow was out of Room B and in the DCR on the first occasion. There is some lack of clarity in his testimony but MCpl. Chase appears to have accepted that he heard ambient noise coming from Room A into the DCR when Mr. Finbow went into the DCR on the first occasion. [153] The recording from Room B captured the sound of a door opening at 11:02 a.m. Over the next minute, off camera voices are heard whispering. One officer says: Told you (inaudible). The other replied: I know. An officer entered Room B, closed the door for 3 seconds, and then opened it saying to an off-camera person [11:02:59] Just want to see if I can hear him from here. Voices can be heard on the B room recording during those 3 seconds but are less audible. Then the direction is given to Bring him [Finbow] in here until he talks to duty counsel. [154] Obviously, the officer knew there was a sound transmission problem in the area. He was checking the room prior to returning Mr. Finbow to Room B. [155] Mr. Finbow was led back into Room B, and surprisingly, the door of Room B was left open. Again, MCpl. Biso s voice can be clearly heard from Room A. This lasted for a period of some minutes while Mr. Finbow waited to speak to duty counsel again.

46 Page 45 [156] By 11:07 a.m., when Mr. Finbow left Room B to speak to counsel, it would be clear to him that sounds from Room A could be heard in Room B. [157] Just after Mr. Finbow went into the Duty Counsel Room on the second occasion, an officer is heard to question whether the camera in Room B was running. Then the door of Room B was closed with the camera running until Mr. Finbow returned to the room. During that period of approximately 26 minutes, muted voices can be heard on the recording from B. [158] I infer that the door to Room B was shut to minimize the risk that sounds from Room A or from the DCR might be recorded in Room B. I can think of no other reason why the door was closed with the camera left running. This must be seen in the context of the officer recognizing, just minutes before, that voices from A could be heard in B and possibly in the DCR. [159] In my view, the failures of the police were not so much a result of being unaware of the prevalence of sound transmission in the area as it was a failure by the officers to apply their training and experience to recognize the significance of what was taking place. It is reasonable to have expected meaningful corrective action to minimize the problems with the lack of privacy. That this did not occur stemmed from the negligence of the officers. [160] The seriousness of these failures was evident when MCpl. Biso expressed concerns about what he heard on the recordings in evidence: Q.... before his [Mr. Finbow] interview with you that may be an hour and a half later. Is that something that you encourage, that you want to see, in terms of getting a good admissible interview or not? A. Absolutely not. Q. "Absolutely not." Okay. What causes you to say "absolutely not"? A. For me, I don't want... you know, I wanted admissible versions of somebody's events. I don't want somebody to be influenced by hearing information from somebody else or even hearing me. If I'm using some tactics that... or some... you know, some interview styles, that's not ideal as well. Yes. I don't...

47 [161] He further testified: Q. I'm asking you if there are police officers outside Mr. Finbow's room with the door open, is it preferable, from your point of view, to get a good admissible interview, for these members to be talking between themselves? A. Oh! No. No. Q. Okay. And if that's what was occurring here, that's not what you're looking for in terms of getting an interview. Right? A. That's correct. Page 46 [162] The legal principles underpinning the right to counsel, and in particular the notion of without delay and in private are not new. They have been subject to extensive litigation. These were significant violations by an experienced team of investigators. The justice system should not condone this conduct. [163] I conclude that the Charter violation is serious. This factor favors exclusion of the evidence. 2. Impact on the Charter Protected Rights of the Accused [164] The next question is to assess the degree to which the violations undermined the accused's interest protected by the section 10(b) Charter right. [165] Mr. Finbow testified that the contents of his statement given to MCpl Biso are true. That does not mean that the violations in this case had no impact on the accused s Charter protected interests. [166] Mr. Finbow waited a total of 1 hour and 20 minutes to speak to counsel during which time he was exposed to the running commentary of various investigators. During this time, he also became aware of the lack of privacy that he would have when consulting counsel. He also overheard the interview of Mr. Stoner during which MCpl. Biso used aggressive and intimidating tones to try to elicit a response from Mr. Stoner. [167] As Mr. Finbow testified: Q. All right. And in any of the words that you heard, did you hear any threats coming from Master Corporal Biso?

48 Page 47 A. No. Q. He certainly... you'd agree with me that he's being confrontational with Mr. Stoner. He's calling him a callous person, not taking things seriously. And then later on he's saying things like, 'You're incredible. Man up. You're not going back home. We're trying to help you. You didn't think about help to the victim.' And then he finally ends with, "We're done." So in any of what you overheard from that interview room when you were sitting either in the soft interview room or in the duty-counsel room, did you hear anything you would categorize as... well, threatening type of language, language that had a menace to it, a menacing tone? A. Well, I would say that the entire shouting itself would be a threatening way as such. [168] Later, he testified: Q. What other option was there for you in your mind besides telling the story? A. I believe in my mind, that was the only one. Q. What made it the only option, the only reasonable option for you? A. I believe it's from, as we just said, that I'd made up my mind on the way to the interview as such. And hearing Craig's interview going on cemented it in my mind, and almost put a block up to the information coming in from Legal Aid or the duty counsel. So what was said to me in that duty-counsel room wouldn't have been processed anyway, I believe. So then that stopped that process. And then my only option was to talk. Q. Now your realization, I guess, that you weren't able to process what had been said in that duty-counsel room, when did you come to that realization? A. After duty counsel. Q. While you were in the interview room? A. So when I was sat... yeah, when I was sat in that room again waiting for my interview. [169] MCpl. Biso admitted that the office was not properly soundproofed and identified the specific problem when suspects were in the Duty Counsel Room and Interview Room A at the same time: A. No. I'm saying if somebody was in the duty counsel room... presumably somebody would have taken Finbow into the duty counsel room. If they could hear

49 me while they're escorting him into the duty room, then that's... you know, I should have been made aware of that or, yeah, something should have been done. Q. And you're not happy by the fact that that did occur, that somebody was in there... that Finbow was getting duty counsel advice while you were doing Stoner's interview. A. If they could hear me, yes, I would not be happy with that. Q. You know that that could have an impact on the person getting duty counsel advice to process the advice. Page 48 A. I can appreciate that, yes (emphasis added) [170] MCpl. Chase also spoke to the possible effects on a suspect of being in this atmosphere: Q. You would agree or disagree that someone in Room B waiting to speak to duty counsel might become unsettled, might become anxious, might become worried hearing somebody in another room yelling at his coworker, at his comrade, at his team member. Would you agree with that? A. It's possible, yeah, it could. Q. Did you know that, that day as you were sitting there, or is that just something that's come to you since? A. No. Like, as soon as that happened that would have been my concern. Q. Mm-hmm. A. As well as just hearing the words coming from that room. Q. Mm-hmm. As soon as you heard this ambient talking, though, I mean, that caused you to... didn't that cause you to say to yourself, Well, maybe that's not good for somebody sitting here, maybe I can do something to take that away, to make it a calm place. Because when we watched Interview Room B with the door closed it's quite a difference, isn't it? A. Correct. [171] The failure to provide access to counsel in private and without delay can have a negative effect on a suspect s Charter protected interests. In this case, the problems were exacerbated by the fact that Mr. Finbow was left sitting for an extended period where he could hear things that he should not have been exposed to

50 Page 49 and which could reasonably be expected to have an adverse impact on his decision making. [172] There must be a clear message that handling a detained person in this manner is unacceptable. I conclude that the violations had a significant impact on Mr. Finbow s Charter protected interests. This factor favours exclusion. 3. Society's interests in adjudication on the merits [173] A more detailed outline of the relevant considerations at each step of the section 24(2) analysis was set out by Cromwell J in R. v. Côté, 2011 SCC 46. In relation to the third factor in the analysis he wrote: The third line of inquiry is concerned with society s interest in an adjudication on the merits. It asks whether the truth-seeking function of the criminal process would be better served by the admission or exclusion of the evidence. The reliability of the evidence and its importance to the prosecution s case are key factors. Admitting unreliable evidence will not serve the accused s fair trial interests nor the public s desire to uncover the truth. On the other hand, excluding reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public s perspective. The importance of the evidence to the Crown s case is corollary to the inquiry into reliability. Admitting evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the whole of the prosecution s case, but excluding highly reliable evidence may more negatively affect the truth-seeking function of the criminal law process where the effect is to gut the prosecution s case. [174] The charges in this case are serious. [175] The Crown submits that: Courts are also encouraged to consider the importance of the proffered evidence to the Crown s case. Would exclusion of the evidence, to use the language in Grant, effectively gut the prosecution? Now, This Honourable Court hearing this application will also be the trial court and the trier of fact; because of this, the Crown wishes not to point to the extent of evidence against Mr. Finbow and the role the proffered statement plays in the Crown s case. Instead, the Crown merely submits that the statement of Mr. Finbow is a crucial part of the case against him, and the exclusion of the statement would certainly cause the Crown to reassess the strength of its case involving Mr. Finbow. It is anticipated that Mr. Knox, counsel for Mr. Finbow, would not disagree with the importance the Crown places on the proffered statement to the overall case against his client. It is also a fact that a

51 decision excluding Mr. Finbow s statement may well impact the strength of the Crown s case against co-accused Darren Smalley. [176] Counsel for the defence did not object to this characterization. Page 50 [177] Mr. Finbow maintains that the contents of his statement are true. The reliability of the evidence is an important factor in this inquiry. The more reliable the evidence, the more this militates in favour of admission, and the converse is also true. A statement is, however, not like pre-existing physical evidence of a crime which is readily identified as being reliable evidence. Statements, when subject to examination against other evidence, are often found to be incorrect in some or many aspects. Those variations are sometimes deliberate and sometimes inadvertent. Keeping in mind that Mr. Finbow says that the contents are true, I would characterize it as generally reliable evidence. [178] It is easy to understand the difficulty facing the Crown in explaining the significance of the statement to the ability to prosecute the matter where I am hearing the trial as a judge sitting alone. This gap in information places the court in a difficult position as well. [179] Mr. Finbow s statement may be characterized as exculpatory, although in providing particulars of his interaction with the complainant he may have confirmed or expanded upon certain aspects of her allegations against him. This could be helpful to the Crown. [180] The essential averments of the case include territorial jurisdiction, the date of the alleged offences, and the circumstances alleged in support of each charge. All of these should be able to be established to some extent through other evidence. [181] The identity of the accused may be an issue. I am not able to make that assessment. The police were successful in identifying Mr. Finbow as one of the suspects. It is not clear what evidence they relied upon to accomplish that. There is a potential that there are witnesses who are not inculpated in the alleged offence who are available to the Crown. It may be that by severance of the accused the Crown could obtain evidence of identity, without the use of the accused s statement. [182] I accept that the Crown believes the case may not be as strong if the statement is not admitted. I unable to say that it will cause the Crown to discontinue the prosecution against Mr. Finbow.

52 Page 51 [183] I do not have sufficient information to understand how the statement of the accused could be admitted as evidence against his co-accused Mr. Smalley. It may be that it is to be used collaterally but that, at this point, is speculative on my part and cannot form part of my assessment. [184] There is no assertion that the exclusion of the statement impacts on the prosecution of Mr. Radford. [185] In summary, there is a strong societal interest in seeing a serious matter adjudicated on its merits. I accept that the contents of the statement are generally reliable, and that the exclusion of the statement may be damaging to the likelihood of conviction as against Mr. Finbow, although not in the same degree as those cases where it is clear that the exclusion of the evidence will gut the entire prosecution. As such this factor favors inclusion of the evidence. [186] Overall, consideration of these factors favors inclusion of the statement. 4. The final step is to balance the three inquiries [187] Cromwell J, in Côté, supra said: [48] After considering these factors, a court must then balance the assessments under each of these avenues of inquiry in making its s. 24(2) determination. There is no overarching rule that governs how a court must strike this balance (Grant, at para. 86). Rather, [t]he evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute (Harrison, at para. 36). No one consideration should be permitted to consistently trump other considerations. For instance, as this Court explained in Harrison, the seriousness of the offence and the reliability of the evidence should not be permitted to overwhelm the s. 24(2) analysis because this would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of the criminal law the ends justify the means (para. 40, citing 2008 ONCA 85 (CanLII), 89 O.R. (3d) 161, at para. 150, per Cronk J.A., dissenting). In all cases, courts must assess the long-term repute of the administration of justice. (emphasis added) [188] Mr. Finbow has not retreated from his assertion that the contents of his statement are true. To the extent that the principles embodied by the Charter are intended to ensure that an accused person is not confronted by their false statement

53 Page 52 given after a violation of their Charter rights, that is not an issue. However, that circumstance is not determinative of the remedy to be ordered. [189] Abella J. writing in R. v. Taylor, supra, held: 21 The purpose of the s. 10(b) right is "to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights": Manninen, at pp The right to retain and instruct counsel is also "meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination": R. v. Suberu, [2009] 2 S.C.R. 460, at para. 40. Access to legal advice ensures that an individual who is under control of the state and in a situation of legal jeopardy "is able to make a choice to speak to the police investigators that is both free and informed": R. v. Sinclair, [2010] 2 S.C.R. 310, at para It goes without saying that the public has an interest in an adjudication of the merits of a case where, as here, the evidence sought to be excluded is reliable and key to the case. But as this Court has consistently said, most recently in R. v. Spencer, 2014 SCC 43, at para. 80, the public also has an interest "in ensuring that the justice system remains above reproach in its treatment of those charged with these serious offences". [190] The question to be answered is whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that conduct. [191] After weighing all the relevant considerations, in my view the seriousness of the Charter breach and the impact of the police conduct on Mr. Finbow s interests are such that the admission of the evidence would so impair public confidence in the administration of justice as to warrant the exclusion of the evidence. [192] The application of Joshua Finbow brought under sections 10(b) and 24(2) of the Charter of Rights and Freedoms is granted. His statement made to police on April 16, 2015 is excluded from evidence.

54 Page 53 Issue 4 : Has the Crown proved that the statement of Joshua Finbow was voluntary? Introduction [193] The accused objects to the admissibility of his statement given to MCpl. Biso because it has not been proven to be voluntary within the meaning given to that term by the common law. Law [194] The onus to prove that a statement is voluntary is on the Crown. See, R. v. Oickle 2000 SCC 38. Voluntariness must be established to a standard of proof beyond a reasonable doubt. Voluntariness can only be determined by considering all the circumstances and then answering the ultimate question, which is: whether the accused exercised free will by choosing to make a statement". [195] Iacobucci J. in R. v. Oickle, reviewed the application of the so called "confessions rule" beginning at paragraph 32 and concluded with the following summary: First of all,... a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness.... If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it. Between these two extremes, oppressive conditions and inducements can operate together to exclude confessions. Trial judges must be alert to the entire circumstances surrounding a confession in making this decision. 69 The doctrines of oppression and inducements are primarily concerned with reliability. However, as the operating mind doctrine and Lamer J.'s concurrence in Rothman, 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 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.

55 Analysis 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 I also agree with Warren C.J. of the United States Supreme Court, who made a similar point in Blackburn v. Alabama, 361 U.S. 199 (1960), at p. 207: [N]either the likelihood that the confession is untrue nor the preservation of the individual's freedom of will is the sole interest at stake. As we said just last Term, "The abhorrence of society to the use of involuntary confessions... also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves."... Thus a complex of values underlies the stricture against use by the state of confessions which, by way of convenient shorthand, this Court terms involuntary, and the role played by each in any situation varies according to the particular circumstances of the case. See Hebert, [1990] 2 S.C.R. 151, supra. While the "complex of values" relevant to voluntariness in Canada is obviously not identical to that in the United States, I agree with Warren C.J. that "voluntariness" is a useful term to describe the various rationales underlying the confessions rule that I have addressed above a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession's voluntariness, taking into account all the aspects of the rule discussed above. Therefore a relatively minor inducement, such as a tissue to wipe one's nose and warmer clothes, may amount to an impermissible inducement if the suspect is deprived of sleep, heat, and clothes for several hours in the middle of the night during an interrogation: see Hoilett, [1999] O.J. No. 2358, supra. On the other hand, where the suspect is treated properly, it will take a stronger inducement to render the confession involuntary. Person in Authority Page 54 [196] The common law confessions rule applies only to statements that are made by a person speaking to a "person in authority", when they know that individual to be a person in authority. [197] MCpl. Biso was a "person in authority" within the meaning of the rule, as were the other members of the CFNIS team that had contact with Mr. Finbow during

56 Page 55 his detention on April 16, I am satisfied that Mr. Finbow knew them to be police officers. Those directly involved with his arrest, transportation and detention all identified themselves to him as such. [198] I am also satisfied that, having regard to the totality of the evidence adduced, all police officers who had contact with the accused and whose evidence would be necessary to satisfy the burden that is upon the Crown were called as witnesses in the voir dire. [199] The accused submits that British Naval Officer Lt. Adam Lappin was also a person in authority. This is significant to the accused s position in that it is alleged that he ordered Mr. Finbow to give a statement to the police. [200] The evidence is that while in Warrior Block word was communicated to Lt. Lappin that the police were coming to question team members. He, in turn, told the accused persons to expect this. Co-accused Simon Radford is reported to have asked Lt. Lappin: what do we tell them?. Mr. Finbow testified to the response: Q. And Lieutenant Lappin responded, "You haven't done anything wrong. Tell them everything." A. Along those lines, yes. Q. And you heard Mr. Stoner testify earlier that he recalls Lieutenant Lappin saying: "Tell them everything. You've got nothing to hide. Did you want the girl or the woman in the room?" "No." "Did Mr. Radford want her in his bed?" "No." A. As I heard Craig say that earlier, that does come to mind that he did say that. But from my memory, I can't remember the exact wording he said. Q. Okay. A. But yeah, along those lines is what he said. [201] And later: Q. And so would you also agree that what was being said by Lieutenant Lappin seemed a reasonable response to the request for a field interview or an interview of any sort? A. Yes. Q. So although you took it as an order, it wasn't an order you disagreed with personally in any way.

57 Page 56 A. No, not at all. [202] Lt. Lappin was the highest-ranking member of the Royal Navy Hockey team. He testified that his role was as a coach and an administrative head who controlled the payment of expenses during the tour. He suggested that it was not his role to act as the commanding officer to the other members of the team. The Crown suggests that it would be incorrect to characterize him as having the right or that he did, in fact, issue orders to Mr. Finbow. [203] The Lieutenant was and is a superior officer within the British Navy who, according to military rank structure, would have the authority to give an order to Mr. Finbow. The evidence satisfies me that Mr. Finbow held the view that he was under a continuing obligation to respond to any order given by him, notwithstanding the goodwill purpose of the hockey trip. I find his view to be reasonable and supported by the evidence. During the investigation, Lt. Lappin was contacted by the police as a point person for communications with members of the team. Clearly, the military police investigators recognized his role as a superior officer. It would be a distinction without a difference to say that he communicated information to the team members as an administrator or as a superior officer. [204] However, being a superior officer tasked with communicating information from the police to the team members does not in and of itself render him an agent of the state for the purposes of the investigation. [205] The Court in R. v. Engel 2016 ABCA 48 spoke to this issue: 32 The confessions rule applies only to communications between an accused and persons known by the accused to be formally engaged "in the arrest, detention, examination or prosecution of the accused": Hodgson at para 16. Communications with persons not believed by the accused to be connected with "the coercive power of the state" do not attract the confessions rule: R. v. Forknall, 2003 BCCA 43 (B.C. C.A.) at para 26, (2003), 172 C.C.C. (3d) 61 (B.C. C.A.); R. v. Carter, 2001 BCCA 407 (B.C. C.A.) at para 55, (2001), 157 C.C.C. (3d) 165 (B.C. C.A.). 33 The relevant law relating to the issue before us was summarized by Cory J., speaking for the majority in Hodgson at para 48. His list of applicable principles includes the following: 4. Those persons whom the accused reasonably believes are acting on behalf of the police or prosecuting authorities and could therefore influence or control the proceedings against him or her may also be persons in authority. That question will have to be determined on a case-by-case basis.

58 34 5. The issue as to who is a person in authority must be resolved by considering it subjectively from the viewpoint of the accused. There must, however, be a reasonable basis for the accused's belief that the person hearing the statement was a person in authority If it is contended that the recipient of the statement was a person in authority in the eyes of the accused then the defence must raise the issue with the trial judge. This is appropriate for it is only the accused who can know that the statement was made to someone regarded by the accused as a person in authority. 8. On the ensuing voir dire the accused will have the evidential burden of demonstrating that there is a valid issue for consideration. If the accused meets the burden, the Crown will then have the persuasive burden of demonstrating beyond a reasonable doubt that the receiver of the statement was not a person in authority or if it is found that he or she was a person in authority, that the statement of the accused was made voluntarily. 35 To be clear, it is the accused's knowledge of the recipient's status at the time the accused made the impugned communications that is relevant; reflections or subsequent revelations are of no consequence. (emphasis added) Page 57 [206] There is no evidence that either of the police or Lt. Lappin saw him as a person in authority within the meaning of the confessions law. Neither was he, in fact, acting in that capacity. [207] Having considered the evidence I am not satisfied that at the time that Lt. Lappin made his comments that Mr. Finbow did believe, or could reasonably have believed, that Lt. Lappin was acting on behalf of the police or prosecuting authorities and could therefore influence or control the proceedings against him. [208] Lt. Lappin responded to Mr. Radford s request for advice. He was someone who was seen by Mr. Finbow as being more knowledgeable and better positioned to offer good advice in these circumstances. If anything, he was acting in what both he and Mr. Finbow would have seen as an advisor to the members, not as a representative of the police.

59 Page 58 [209] Therefore, I conclude that he was not, nor was he perceived to be a person in authority at the time that he gave his advice to tell them everything. [210] I turn now to the question of whether there was any conduct on the part of the police that could impact on the voluntariness of the statement made by Mr. Finbow to MCpl. Biso. [211] The following are relevant concerns in assessing voluntariness: 1. Lack of an operating mind; 2. Oppressive Circumstances; 3. Police Trickery; 4. Threats, Promises or Inducements [212] Counsel for Mr. Finbow submits that the statement was rendered involuntary by a combination of oppressive circumstances and threats. 1. Lack of an operating mind [213] I am satisfied that the accused had an "operating mind" as that term is discussed in the case of R. v. Whittle, [1994] 2 S.C.R Mr. Finbow was aware of what he was saying to MCpl. Biso, that he was saying it to a police officer, and that it could be used to his detriment. [214] The video evidence shows him to be relatively calm, oriented to time and place, appropriately responsive to questions, and showing no indicia of mental disorder, inebriation or any other factor that would run contrary to this finding. 2. Oppressive circumstances [215] The following is taken from the Crown s pre-hearing brief and is accurate insofar as it goes: The doctrine of oppression is primarily concerned with the reliability of a statement and whether the accused s free will was overborne by the circumstances surrounding the taking of the statement. The Supreme Court in Oickle explained that oppression refers to inhumane conditions [Oickle at paragraph 60] wherein the police have create[d] conditions distasteful enough that it would be no

60 surprise that the suspect would make a stress-compliant confession to escape those conditions. Alternatively, the Court described oppressive circumstances that could overbear the suspect s will to the point that he or she comes to doubt his or her own memory, believes the relentless accusations made by the police, and gives an induced confession. [Oickle at paragraph 58]. At paragraph 60, the Court provided a series of situations which may ground a finding of oppression: Without trying to indicate all the factors that can create an atmosphere of oppression, such factors include depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time [and possibly] police use of non-existent evidence. Recently, the Ontario Court of Appeal in R. v. Fernandes, 2016 ONCA 772 [Fernandes] explained at paragraph 33: A statement of an accused will be rendered involuntary and inadmissible where the conduct of a police officer or the circumstances of the detention are so oppressive as to raise a doubt whether the accused was able to make an independent choice to speak to the police or remain silent: Lederman, Bryant and Fuerst, The Law of Evidence in Canada, 4th ed. (Markham: LexisNexis, 2014), at para Oppressive conditions must be caused by the state. A finding of oppression in the context of voluntariness cannot be made on the basis that the accused s personal circumstances created the oppression, e.g., through the accused s mind, imagination, or living situation, for example, being homeless and needing shelter. In Fernandes, the Ontario Court of Appeal stated at para. 36: Under the confessions rule, the oppressive conditions must be caused or created by the state. The concern underlying this part of the rule is that state agents may abuse their authority over an accused to effectively negate the accused's ability to make an independent decision to speak to the authorities: Oickle, at para. 60 Page 59 [216] The reliability of Mr. Finbow s statement to MCpl. Biso is not in issue. He has maintained that the contents are true. [217] Is there a reasonable doubt as to whether Mr. Finbow s will was overborne by the allegedly oppressive circumstances he endured during the period of his detention?

61 Page 60 [218] The facts that the defence say created an oppressive atmosphere include: Mr. Finbow was suffering from an undiagnosed, untreated, work related post-traumatic stress disorder which impaired his ability to make educated choices, or to take advice or give instructions when consulting with legal counsel; He perceived himself to be under a military order from Lt. Lappin, requiring him to provide a statement; That during the period of his custody at the NIS offices, Mr. Finbow was subjected to a chaotic atmosphere to the point of it being oppressive; That the chaos was the product of the police recognizing but failing to remedy the noise heard in Room B and in the Duty Counsel room, which noise consisted of various conversations among police investigators, some involving Mr. Stoner; That the noise caused him to believe that his consultation with legal counsel was not private; That his statement was a product of that oppressive atmosphere. [219] The evidence satisfies me that the officers treated Mr. Finbow with respect. He was provided a bathroom break and provided with water. He was held in a comfortable room while waiting to be interviewed. The officers said very little to him and refrained from questioning Mr. Finbow on substantive matters, during the time that he was waiting to speak with counsel and again while waiting to speak with MCpl. Biso. [220] The duration of his detention prior to his statement, and the duration of the statement interview were, in the context of such investigations, not unduly lengthy. [221] MCpl. Biso was polite to Mr. Finbow. He did not use, nor was it necessary to use, any significant investigative techniques to obtain a statement. Much of Mr. Finbow s statement was a narrative. [222] There were no observable signs that Mr. Finbow was fearful, or particularly vulnerable due to mental health issues or other reasons. The psychological opinion evidence affirms that there is evidence consistent with Mr. Finbow processing information and making choices. He, naturally, was concerned for his career but

62 Page 61 also was convinced of his own innocence and made what would seem to be a logical (if perhaps unwise) decision that he was going to tell his side of the story. [223] The police conduct in failing to control sound transmissions in the office was inappropriate and certainly was distracting. I have previously dealt at length with the atmosphere and concluded that the accused s rights to privacy and to consult counsel without delay were violated. That result is not dependent on whether it was also an oppressive atmosphere. [224] I conclude that the evidence does not support a conclusion that the atmosphere was so oppressive as to raise a doubt whether the accused was able to make an independent choice to give a statement. 3. Police trickery [225] There is no evidence to support a finding that the police engaged in impermissible conduct that would amount to trickery that would "shock the community", being the test set out in R. v. Rothman, [1981] 1 S.C.R Threats or promises (inducements) [226] There are two points in time that the issue of threats or intimidation arise in the evidence. The first is whether Lt. Lappin s advice to tell everything compelled Mr. Finbow to give a statement to the police. The second is when Mr. Finbow heard MCpl. Biso yelling at Mr. Stoner during their interview. [227] I have previously determined that Lt. Lappin was responding to Mr. Radford s request for advice, and that in doing so it would not be reasonable for Mr. Finbow to believe that Lt. Lappin was acting as a person in authority. As such it does not go to the question of threats or inducements made by a person in authority. [228] He later testified (153): Q. And so would you also agree that what was being said by Lieutenant Lappin seemed a reasonable response to the request for a field interview or an interview of any sort? A. Yes.

63 Q. So although you took it as an order, it wasn't an order you disagreed with personally in any way. A. No, not at all. Page 62 [229] Mr. Finbow did hear some of the specific words that MCpl. Biso directed to Mr. Stoner during their interview. I would characterize what Mr. Finbow heard as MCpl. Biso speaking in a loud, confrontational and aggressive tone. Most of the words spoken in this tone, however, did not amount to a threat or inducement and were relatively brief. Among the things that MCpl. Biso said were: Are you that callous, hard person that you re taking this as a joke? You re incredible! Man up! We re trying to help you! You didn t think about the victim! We re done. [230] The only comment that stands out as a possible threat is You re not going back home! [231] Mr. Finbow testified as to the impact that the order and these comments had on his decision to give a statement to the police: Q. Okay. And as you're waiting in Room B, you described it as about an hour. Did your waiting in that room, did it have any impact on that decision that you had made after what Lieutenant Lappin had said to you? A. Yes. It made it pretty certain that I would do that. Just hearing the shouting that Craig was experiencing in there, I thought he was doing the same advice as what I was. I thought he would be speaking. And hearing him go through what I could hear cemented it in my mind that I would go in and tell my side of the story. [232] It is well settled that when courts speak of fear, prejudice or hope of advantage, that these need not be aimed directly at the detainee. While the concept of a quid pro quo offer by interrogators is an important consideration, it is not the exclusive factor in rendering a statement involuntary. Assessing the strength of the alleged inducement or threats is key and in the end analysis one has to ask themselves, "whether in all of the circumstances there is reasonable doubt about

64 Page 63 whether the will of the accused was overborne"? see, R. v. Spencer, [2007] 1 S.C.R [233] There is scant evidence of anything said to Mr. Finbow that would constitute a threat and none that would amount to a promise or inducement. [234] Chase testified, and I accept that in the period before Mr. Finbow appears in the video from Interview Room B, he was not shown firearms, or subjected to the use of force. He showed no signs of emotional distress or physical distress. His mental state was felt to be normal. [235] At p Q. Okay. Did you ever make... or did you make observations of Mr. Finbow's physical state throughout your dealings with him on that day? A. I did. Q. And what were those observations? A. That he had a calm demeanour. He was compliant throughout our interaction. Q. Okay, and so what would you say about his mental state throughout the day? A. It... it seemed normal. So you know, he was conversing, understanding what I was saying, and I was understanding what he was saying. It... it just seemed normal to me. Q. What about his state of sobriety? A. He was sober. Q. Did he ever give you any indication that he didn't understand what you were saying to him? A. No. Q. Did he make any requests, other than those that we've seen on video? A. Not that I can recall. Q. Okay. Did you observe any conversations between Mr. Finbow and other people, that you recall?

65 Page 64 A. No. Q. Did you ever threaten Mr. Finbow? A. No. Q. Did you ever promise anything to Mr. Finbow? A. No. Q. Did you ever say anything about the strength of the case against him? A. No. Q. Was there a point in time in which you had concerns about Mr. Finbow's ability to speak to his lawyer in private? A. No, I didn't. [236] Mr. Finbow had set a plan in motion almost from the point of his arrest he firmly believes in his innocence and that it was in his best interests to tell his side of the story when the police asked. Lt. Lappin s comments were consistent with Mr. Finbow s own view, and anything that happened once at the NIS offices did nothing to change his intentions. [237] The evidence satisfies me that the will of Mr. Finbow was not overborne by threats, promises or inducements. Conclusion as to Voluntariness [238] The evidence of oppression and of threats does not, independently or cumulatively raise a reasonable doubt as to the voluntariness of Mr. Finbow s statement. The Crown has met its burden and proven beyond a reasonable doubt that the statement was given voluntarily. Overall Conclusion [239] Joshua Finbow s rights to consult counsel without delay and in private were violated in contravention of his Charter protected right under section 10. The violations were serious and impacted the accused s Charter protected interests. The

66 Page 65 charges are serious and the evidence sought to be excluded is generally reliable. After balancing the relevant factors, I conclude the appropriate remedy pursuant to s. 24 of the Charter is to exclude the statement. All other arguments presented by the accused are dismissed. Duncan, J.

67