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EVIDENCE - Admissibility - Confessions and statements by the accused

Wednesday, January 29, 2020 @ 7:59 AM  

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Application by the accused, charged with breach of trust and attempting to obstruct justice, to exclude her statement to police based on Canadian Charter of Rights and Freedoms (Charter) breaches. The Crown alleged the accused used her position as a prosecutor to improperly influence the outcome of provincial offences matters. During an investigation into police corruption, communications between the accused and the target of the investigation were intercepted in which they discussed the dispositions of provincial offences matters. The accused was arrested by two officers at the courthouse. She immediately indicated she wished to speak with counsel. The police took the accused to the police station, seized her cellphone and asked for her phone number and password. The accused was provided with the opportunity to speak with counsel one hour after her arrest. She provided a recorded statement three hours later.

HELD: Application allowed. The delay in accessing counsel was not reasonable. The accused’s s. 10(b) Charter rights were infringed. Obtaining the accused’s phone number and password constituted a seizure in breach of her s. 8 Charter rights. The statement was obtained in a manner that infringed the accused’s Charter rights. The seriousness of the breaches and their impact on the accused’s Charter-protected interests favoured exclusion. The truth-seeking function was better served by exclusion of the statement. Admission of the statement would bring the administration of justice into disrepute.

R. v. Petrolo, [2019] O.J. No. 6274, Ontario Court of Justice, D.A. Harris J., December 9, 2019. Digest No. TLD-January272020005