Sep 11, 2020

R v McSweeney, 2020 ONCA 2

R. v. McSweeney, 2020 ONCA 2 (CanLII)

CONTENT WARNING: This case concerned charges of the possession of child pornography.

Decision released January 07, 2020


Mr. McSweeney, the appellant, appealed his conviction for possession and distribution of child pornography. His trial exclusively consisted of a challenge under the Charter of Rights and Freedoms. He alleged that his rights under sections 7 and 10(b) of the Charter were infringed when he gave incriminating statements to the police before and after his arrest. He therefore asked that these statements be excluded under section 24(2).

The trial judge found the statements to be admissible into evidence, at which point the defence rested and invited the court to make a finding of guilt. McSweeny appealed, arguing that the trial judge made an error including the statements.

Verdict: Appeal allowed. The statements were obtained in violation of McSweeney's s. 10(b) rights, and should have been excluded under s. 24(2).

Background Facts

In May 2016, a Detective of the Internet Child Exploitation Unit of Durham Regional Police, Det. Lockwood, received a report that certain images had been uploaded to a social networking site. The upload was traced to the appellant, who was located in Whitby, Ontario. Police officers prepared a search warrant to seize electronic storage devices and computers from his residence. The appellant's wife let the officers in.

Det. Lockwood asked the appellant to direct him to a computer he suspected had child pornography on it. The appellant said he needed to get his thoughts together. At around 6:30 a.m. the officer asked the appellant's wife to come to the front porch to give an audio statement. At some point she asked to get the children ready for school, at which point the officer then questioned the appellant on the porch. Det. Lockwood did not caution him before taking the statement or inform him of his right to counsel. He admitted his failure to do so was a mistake because he considered the appellant was a suspect.

Det. Lockwood explained the background leading up to the warrant. He then told the appellant that he was the prime suspect as someone who had uploaded child pornography from that address. The appellant said that he wanted to speak to a lawyer, which Lockwood repeated back to him. The appellant then made an incriminating statement, saying "we both's...myself" referring to who Det. Lockwood believed was the suspect. Lockwood said he appreciated the appellant's honesty because he "didn't want to drag your kids into this."

A second statement was made at the police station, after the appellant had spoken to a lawyer acting as duty counsel. Another recorded interview took place. The appellant mostly remained silent while being questioned by Det. Lockwood. However, at one point, Det. Lockwood asked the appellant whether there was "any chance that anybody else in the house is involved" to which he replied "absolutely not."


There were four issues on appeal:

  • Whether the appellant was detained during his first statement, triggering his s. 10(b) right to retain and instruct counsel.
  • Whether the second statement was also obtained in violation of s. 10(b).
  • If the answer to one or both of the above questions is yes, should the statements be excluded with s. 24(2).
  • If there is no s. 10(b) violation, should the statements have been excluded for being involuntary [not examined in the reasons].
  • Sidebar: Section 10(b)

    Section 10(b) of the Charter reads: "Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right." A detained person must be given a reasonable opportunity to do so, and police must not try to obtain incriminating evidence from the obtained person until they have had a reasonable opportunity to consult with counsel.

    For more on s. 10(b) in the context of police interrogation, see the post on R v Sinclair.

    Sidebar: Detention

    Key to the s. 10(b) analysis is whether a detention has actually occurred when the police failed to inform the detainee of their right to retain a lawyer. Detention can be physical or psychological. Psychological detention occurs where a person has a legal obligation to comply with a police direction, or where "the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand."

    In R v Grant, 2009 SCC 32, the Supreme Court provided a helpful summary of when detention by the state is deemed to have occurred.

  • Detention refers to the suspension of the individual's liberty by a significant physical or psychological restraint. Psychological detention is established either where the individual has (a) a legal obligation to comply with the restrictive demand, or (b) a reasonable person would think by the state conduct that they had no choice but to comply.
  • If there is no physical restraint or legal obligation, there might be a question about whether a person has been detained. To determine whether a reasonable person would think they are detained, the court may consider these factors:
  • the circumstances leading up to the encounter as perceived by the individual; whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.
  • the nature of the police conduct, including language used, the use of physical contact, the place, the presence of others, and duration.
  • the circumstances of the individual including age, physical stature, minority status, and level of sophistication.
  • Sidebar: Section 24(2)

    Section 24(2) of he Charter provides: "Where...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."

    Just because evidence is acquired in a manner that infringes Charter rights doesn't mean it is automatically excluded from the trial. The Section 24(2) analysis looks at the effect of admitting the evidence on public confidence in the administration of justice in the long term.

    The factors the court must consider are:

  • the seriousness of the Charter-infringing state conduct;
  • the impact of the breach on on the Charter-protected interests of the accused; and
  • society's interest in the adjudication of the case on the merits.
  • If, after balancing and considering these factors, the answer is that admitting the evidence will damage the public confidence in the administration of justice, the judge will exclude it.


    Was the appellant detained at the time of the first statement, thus infringing his s. 10(b) right to counsel?

    In the trial, the judge failed to apply the proper analysis; whether a reasonable person in the appellant's circumstances would conclude they had no choice but to comply. It is also relevant to this case that the appellant's first encounter with the police was through the lawful execution of a search warrant.

    For the first Grant factor, the circumstances leading to the encounter, the court considered whether the police were acting solely to ensure the integrity of the search of the house, or whether they were engaged in a focused investigation. In this case, the appellant was separated from his family and clearly singled out for a focused investigation. The questions asked by Det. Lockwood further would lead a reasonable person to conclude that they were a suspect, probably the prime suspect, in a police investigation into child pornography in their home. This suggests that this was a targeted and specific investigation of the appellant.

    For the second factor, the nature of the police conduct, there was no evidence of physical contact. However, the language used by Det. Lockwood was targeted and accusatory. Furthermore, the timing of the execution of the warrant, 6:00 a.m., is significant. Nine officers appeared early in the morning just as the appellant was waking up and the children were getting ready for school. The court concluded this would have been particularly intimidating for the appellant.

    The final factor is the particular characteristics of the accused. In this case, the appellant was a mature, educated, articulate adult with some appreciation of his rights. The court concluded this was not particularly relevant to the inquiry.

    The Court concluded that the appellant was detained at approximately 6:53 a.m. when Det. Lockwood asked him onto the porch to give a statement. A reasonable person, given the circumstances, would conclude they were obliged to comply. At no time before his arrest was the appellant informed of his right to counsel, even though Det. Lockwood knew he was required to do so. There was a s. 10(b) infringement.

    Was the appellant's second statement obtained in violation of 10(b)?

    The second statement made at the police station, even after the appellant had been advised of his right to counsel, contentious. The court had to evaluate whether the second statement was obtained as part of the same conduct as the earlier breach.

    The Court determined that there was a causal link between the first and the second statements. The statements were relatively close in time to each other, four hours. This time was spent by the appellant in a "head-spinning and stressful process" of arrest, transport to the police station, and then finally consulting with duty counsel. Det. Lockwood's presence at the taking of both incriminating statements, as well as the language used when talking to the appellant, also served to connect them as one continuous detention.

    Det. Lockwood did inform the appellant of his rights and access to duty counsel at the police station, however this did not remove the initial Charter infringement from the events at the home. The presence of the officer who was responsible for that breach, who had taken the first statement, reference to the earlier statement, and the use of the same interview technique created a situation that could be described as the same interrogation process.

    For these reasons, the second statement was obtained in a manner that infringed the appellant's s. 10(b) rights.

    Should the Evidence be excluded under s. 24(2)?

    The court conducted a s. 24(2) analysis. First, they considered the seriousness of the Charter-infringing conduct. In this case the court found there was a "wilful disregard of the appellant's Charter rights. This was very serious, and weighs heavily in favour of exclusion of the statements.

    The second factor is the impact of the breach. This too was serious. The appellant was detained and "at the mercy of state actors." He was deprived of his right to consult a lawyer and make an informed choice about whether to cooperate with the investigation. The police deprived him of that right.

    The final factor is society's interests in the adjudication on the merits. This means that its possible the truth-seeking function of a criminal trial is better served by admitting the evidence rather than its exclusion. In this case, the evidence is reliable but not necessarily critical to the case. The prosecution has circumstantial evidence in the seized computers, and this may be enough to proceed with the charges.

    In conclusion, the Court finds that the appellant's statements should be excluded under s. 24(2). The conviction was quashed and a new trial ordered.