Accused was a police officer who was charged with offences including possession of marihuana. Accused was arrested at his home, and asserted his right to counsel. Minutes later a police officer spoke with the accused (without asking specific questions), and the accused made admissions and agreed to a consent search of his residence. Police were in a position to obtain a warrant.
Held: s. 10(b) breach. Evidence not excluded pursuant to 24(2).
As per McKenzie (2002) 162 OAC 160, the term “elicit” includes police conduct that constitutes a form of “manipulation which, even if unintended, had the effect of bringing about a mental state in which the appellant was more likely to talk.” Accordingly, speaking with the accused violated the hold-off requirement. Regarding 24(2), the violation was serious. However, the impact on the Charter protected interests of the accused was minimal, given that the police had grounds to obtain a warrant.
J. Brunnen – Defence Counsel