Ontario Criminal


Detective chose to create poor record when dealing with interactions with accused

Crown applied to have statement of accused to police, made after he voluntarily attended their station and was arrested, declared voluntary and waiver and consent to take DNA sample valid. Statement involuntary and subsequent DNA sample therefore inadmissible. Court did not accept testimony of interviewing officer that her notes were complete; there was not complete and reliable record before court, officer repeatedly told court that it was impossible to keep verbatim record and court found that her note keeping appeared to have been selective. It made no sense that statements to and from suspect were summarized to get gist of discussion but that conversation with witness was significantly more detailed; inference court drew was that detective chose to create poor record when dealing with her interactions with accused. In absence of full, complete and reliable record as to what was actually said, court was left in doubt as to how this statement came to be and why accused came to station to co-operate fully with police, without counsel and without exercising any of his rights. Accused should have immediately been provided his right to counsel upon arrest in lobby of police station or immediately upon arriving in interview room. Once statement was ruled to be involuntary, statement in its entirety was inadmissible for any purpose. Statement could not be relied upon to prove that waiver and consent were valid and fully informed or justify warrantless seizure of accused’s blood sample.

R. v. Harris (Nov. 27, 2012, Ont. S.C.J., Ferguson J., File No. 10-12484) 104 W.C.B. (2d) 480

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