Accused arrested for kidnapping and forcible confinement of a child (later found dead), and murder of her mother. He made statements which Crown wanted to use in cross-examination if accused testified. Accused argued statement was not voluntary on the basis of oppression. He also applied for exclusion of items seized, photos, clothing and swabs, arguing that evidence was “obtained in a manner” that breached the Charter.
Held: ss. 8, 10(a) and 10(b) breaches but no exclusion.
Following Saeed [2016 SCC 24], police breached s 8 when they took penile swabs as a search incident to arrest. The penile swabs were unrelated to the kidnapping and there was no evidence of a sexual offence vis a vis the child. Police breached 10(a) and 10(b) through delay in informing the accused of his change in jeopardy after child’s body found. Court considered “obtained in a manner” cases, including Mack [2014 SCC 58], and held there was no causal or contextual connection between breaches and statements obtained; the temporal connection was too remote.
G. Wolch, M. Friedland – Defence Counsel