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The Defence Toolkit – June 14, 2025: Expert Evidence

Charter 10(b) | Charter s.7 | Disclosure | Experts

Posted On 14 June 2025

This week’s top three summaries: R v Whitby, 2025 SKCA 55: #expert evidence, R v Herman-Ward, 2025 ABCJ 101:s.10(b) #perfunctory, R v McQuarrie, 2025 ONSC 2955: #prisoner disclosure

R v Whitby, 2025 SKCA 55

[June 6, 2025] Expert Evidence Admissibility: Testing of Expertise [Reasons by Neal W. Caldwell with Jerome A. Tholl and Jillyne M. Drennan JJ. concurring]

AUTHOR’S NOTE: This case reinforces a critical and often misunderstood point in expert evidence law: threshold admissibility is a gatekeeping function, not a rubber stamp. The Crown’s appeal failed precisely because the trial judge did their job—they scrutinized the actual expertise of the proposed witnesses against the subject matter of their opinions, rather than deferring to credentials or titles alone.

🔹 Key Legal Takeaways:

1. Expertise Must Match the Question at Issue

  • Professional title ≠ expertise for every topic.

    • The attending paediatrician lacked sufficient specialized experience in infant death investigations to opine on cause or timing of death.

    • The ophthalmologist lacked sufficient grounding in retinal haemorrhages in infants, despite having read some literature—he couldn’t even name specific studies or demonstrate application of accepted methods.

2. Admissibility ≠ Weight

  • The Court rejected the outdated notion that issues around the extent of an expert’s qualifications are merely matters of weight for the trier of fact.

  • Citing White Burgess, the Court emphasized that trial judges must ensure that expert evidence:

    • Comes from a properly qualified expert,

    • Relates to a recognized field of expertise,

    • And fits the facts in issue.

🔹 3. Affirmation of the Trial Judge’s Gatekeeping Role

  • The Court strongly upheld the trial judge’s duty to rigorously vet expert evidence under the Mohan and White Burgess frameworks.

  • In doing so, it protected the fairness of the trial process, particularly in high-stakes cases like child deaths where medical experts can carry enormous persuasive weight.

I. OVERVIEW

[1] In this matter the Crown appeals against the acquittal of Chelsea Rae Whitby, following a trial by judge alone under an indictment on the charge of second degree murder in the death of her infant son Emerson Whitby, of the lesser and included offence of manslaughter (R v Whitby (19 September 2023) Regina, CRM-RG-00315-2021 (Sask KB) [Trial Decision]). Under s. 676(1)(a) of the Criminal Code, the Crown’s right of appeal against an acquittal in proceedings by indictment is limited to “any ground of appeal that involves a question of law alone”.

[2] The Crown asserts that the trial judge erred in law when she limited the scope of opinion evidence permitted from two of the Crown’s five expert witnesses, namely, Dr. Juliet Soper, the attending paediatrician on June 10, 2020, when Emerson was brought to the hospital, and Dr. Konrad Chmiel, an ophthalmologist who examined retinal hemorrhages in Emerson’s eyes that same day. The trial judge excluded evidence of the two physicians that was related to the timing and cause of Emerson’s death principally because she found that they were not qualified to opine about those issues (R v Whitby (17 March 2023) Regina, CRM-RG-00315-2021 [Chmiel Decision], and R v Whitby, 2023 SKKB 58 [Soper Decision]). The Crown submits that the judge should have admitted the opinion evidence and then addressed any concerns that she had with its probative value when deciding how much weight to attribute to it.

[3] There is no dispute that the trial judge correctly articulated the law. Under the law, opinion evidence is presumptively inadmissible. The admissibility of expert opinion evidence is determined under the two-stage approach affirmed in White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23 at para 19, [2015] 2 SCR 182 [White Burgess]. At first, the trial court decides whether the evidence satisfies four threshold requirements set forth in R v Mohan, [1994] 2 SCR 9; that is, a party who intends to tender expert opinion evidence in a trial must establish that it is relevant, necessary, not subject to an exclusionary rule, and proffered by a qualified expert. The second stage of the White Burgess approach involves ascertaining whether the probative value of the proffered evidence will outweigh its prejudicial effect. If the circumstances are shown to satisfy both stages, the expert opinion evidence may be admitted.

[4] In this trial, the judge was satisfied that the opinion evidence of Drs. Chmiel and Soper met the first three R v Mohan threshold criteria. The Crown further established that the doctors were qualified to give expert evidence as to certain matters regarding Emerson’s injuries. The judge was not persuaded, however, that either of them were experts in all the areas in respect of which the Crown had sought to elicit their opinions; the judge also remarked that she held other reservations under the White Burgess approach about the admission of the evidence….

[5]…I reject the proposition that the trial judge should have admitted all the opinion evidence and then dealt with any misgivings she had with the physicians’ qualifications by attributing less weight to the opinions that were not substantiated by a qualified expertise. As R v Mohan explains, the issue of proper qualification is one of admissibility not weight; the decision in R v Marquard, [1993] 4 SCR 223 at 243, upon which the Crown relies for its contrary proposition, has been overtaken (see White Burgess at paras 23 and 45, and R v J.-L.J., 2000 SCC 51 at para 28, [2000] 2 SCR 600). I find that the remainder of the Crown’s arguments on appeal do not give rise to a question of law alone.

A. Emerson’s death and preceding events

[9] Emerson, Ms. Whitby’s 18-month-old son, died in hospital on June 10, 2020. Dr. Andreea Nistor, a forensic pathologist, conducted an autopsy. She testified that the cause of his death was blunt-force trauma to the head, and that the mechanism of death was cerebral swelling due to a subdural hematoma.

[10] The evidence indicates that several relevant events preceded Emerson’s death. Some time in April of 2020, he had fallen backwards off a deck at his maternal grandmother’s house and down three stairs onto concrete. He had bruises around his ribs but did not receive medical attention. On May 25, 2020, Emerson had fallen out of his bed in Ms. Whitby’s home onto a metal bedrail, which had been improperly installed. He was not taken to hospital then due to Ms. Whitby’s mother’s concerns about the COVID-19 pandemic.

[11] On May 26, 2020, Emerson was with his father (who was neither living with nor in a relationship with Ms. Whitby). The child’s father noticed that his son’s eyes were swollen and that he was “very whiny” (Trial Decision at para 18). He took Emerson to see a doctor, who said that the child should be taken to a hospital if the eye swelling worsened. That evening, Emerson’s father told Ms. Whitby that he would take the child to the hospital, but she objected, saying that, if anyone would take him, it would be her. The father called the Ministry of Social Services and reported Emerson’s injuries. Ministry officials attended at Ms. Whitby’s mother’s home on May 27 and observed Emerson, who was walking around. In their presence, Ms. Whitby and her mother agreed to take Emerson to the hospital.

[12] When Ms. Whitby, her mother and Emerson attended at hospital on May 27, 2020….

[14] On June 9, 2020,…

He recalled that his son did not excitedly run up the stairs for his evening bath as normal and had to be carried instead. Emerson’s paternal grandmother testified that she was concerned about this and gave him Tylenol. Emerson did not wave goodbye when it was time to go home, and his father was unable to keep him awake on the drive back to his mother’s place. Upon arriving there, Emerson vomited in the doorway, leading his maternal grandmother to give him Gravol and (at 9:30 p.m.) to put him to bed. Ms. Whitby and her mother decided to take Emerson to see a doctor the next day.

[15] On the morning of June 10, 2020, Ms. Whitby telephoned a doctor’s office at 9:12 a.m. and booked an appointment for 2:00 p.m. that day….

….She said that when she went to get Emerson from his bed at around 10:00 a.m. she found him unresponsive.

[16]….a radiologist who reviewed the x-rays, declared Emerson braindead at 3:56 p.m. on June 10, 2020.

C. Expert medical opinion evidence

1. Chmiel Decision

[27] In broad terms, the trial judge found that Dr. Chmiel is a general ophthalmologist with no subspecialties. He learned about retinal hemorrhages during his residency, with no other special training. At the time of the voir dire, he had previously seen three non-accidental eye injuries. The majority of Dr. Chmiel’s medical practice focused on diseases associated with the eyes and, generally, diseases seen in older adults, such as glaucoma. While he was familiar with retinal hemorrhages, it was primarily in association with diabetes. Dr. Chmiel had read academic papers about non-disease-related retinal hemorrhages but was unable to name any of them.

[28] On the basis of her review of Dr. Chmiel’s professional background and credentials, the trial judge concluded that the Crown had established his qualifications as an ophthalmologist who could testify as to his first-hand observations and his diagnosis of Emerson on June 10, 2020, and to the possible cause of the retinal hemorrhages (i.e., whether it had been caused by disease or injury) but nothing further. When summarising her findings in the Chmiel Decision, she wrote:

[15] Dr. [Chmiel] is an ophthalmologist, capable of testifying as to his observations and diagnosis of E.W. and the physical state of E.W. during those observations, including references to other medical reports or tests. As well, he is qualified to testify as to the cause of the retinal haemorrhage, in respect of whether such a haemorrhage could be caused by disease or injury.

[16] However, Dr. [Chmiel] has no expertise, either through education, training or experience, to opine on the timing or recency of eye injuries, or on the possible or probable causes of observed trauma to the eyes (such as accidental or non-accidental trauma), nor to opine on the mechanism by which the trauma could have occurred or what the nature or type of force would be consistent or inconsistent with having caused the injury or the symptomology of any of the diagnosed eye trauma, including how the trauma to the eyes would have been expected to progress over time, from the point at which the trauma was sustained. He does not have the specialized or peculiar knowledge or expertise to determine causation, mechanism or magnitude of force or progress of an injury. He will not be allowed to testify as to what caused the retinal haemorrhage, beyond identifying if it is a disease and/or an injury, nor will he be permitted to testify as to whether in his opinion the hemorrhages were caused intentionally, unintentionally, deliberately or accidentally.

(Emphasis added)

2. Soper Decision

[29] The Crown sought to establish Dr. Soper’s qualifications as an expert in the following areas (Soper Decision):

[1] The Crown tenders Dr. Juliet Soper as an expert “medical doctor with a speciality in general paediatrics qualified to give expert opinion evidence on medical issues in children, including the nature, timing and cause of childhood injuries.”

[31] In terms of her approach to evaluating Dr. Soper’s professional background and credentials against the opinions the Crown sought of the physician, the trial judge found the guidance in R v Pham, 2013 ONSC 4903, 300 CCC (3d) 111, helpful:

[31] In summary, the following non-exhaustive list of factors assist in determining whether a tendered expert witness is qualified:

• the manner in which the witness acquired the special skill and knowledge upon which the application is based;

• the witness’ formal education (i.e. degrees or certificates);

• the witness’ professional qualifications (i.e. a member of the College of Physicians and Surgeons);

• the witness’ membership and participation in professional associations related to his or her proposed evidence;

• whether the witness has attended additional courses or seminars related to the areas of evidence in dispute;

• the witness’ experience in the proposed area(s);

• whether the witness has taught or written in the proposed area(s);

• whether, after achieving a level of expertise, the witness has kept up with the literature in the field;

• whether the witness has previously been qualified to give evidence in the proposed area(s), including the number of times and whether the previous evidence was contested;

• whether the witness has not been qualified to give evidence in the proposed area(s) and if so, the reason(s) why; and

• whether previous caselaw or legal texts have identified the contested area as a proper area for expert evidence and if so, who might give the evidence.

[32] The trial judge concluded her discussion of the governing law by remarking:

[18] The present view of the Supreme Court on the admission of expert evidence, as expressed by Cromwell J. in White Burgess at para 20, is noteworthy:

[20] …The unmistakable overall trend of the jurisprudence, however, has been to tighten the admissibility requirements and to enhance the judge’s gatekeeping role.

(Emphasis added by the Trial judge)

[34]…Crown. During this analysis, the judge carefully evaluated whether and the extent to which Dr. Soper’s qualifications allowed her to give the sought-after opinions (at paras 42 to 55). However, with respect to the extent of her qualifications, the trial judge concluded that:

[56] Dr. Soper does not have the training, education or experience to provide an expert opinion on the causation, mechanism or timing of a brain injury. To be more precise on the issue of causation, Dr. Soper will not be permitted to testify as to what caused the brain injury she observed, nor will she be permitted to testify as to whether, in her opinion, these injuries were caused intentionally, unintentionally, deliberately, or accidentally. That is beyond her area of expertise and experience.

[35] In addition, when exercising her gatekeeping role, the trial judge provided reasons why, on a “cost-benefit analysis of Dr. Soper’s evidence”, the paediatrician’s testimony “should be limited concerning [Emerson’s] brain injury and the nature, timing, and cause of the brain injury” (at para 57). Lastly, the trial judge identified concerns relating to Dr. Soper’s independence as an expert witness in the circumstances at hand but decided it was not necessary “to rule on this point” given her earlier conclusions under the fourth R v Mohan factor and given the weight of the “prejudicial effects in the circumstances of her evidence and this case” under the gatekeeping function (at para 64).

[36] In short, the trial judge’s analysis led her to qualify Dr. Soper as an expert but to limit the scope of her expertise. This resulted from the judge’s assessment that “the areas that the Crown seeks to have Dr. Soper provide opinion evidence in relation to brain injury, brain trauma, causation, timing, mechanism of the injury and whether the injury was caused by non-accidental, accidental or intentional force go well beyond Dr. Soper’s education, training and experience as a general paediatrician” (at para 65). The trial judge summarised her ruling with respect to Dr. Soper’s expertise and its limits in these terms:

[67] Dr. Soper can describe her observations during the examination conducted by her in relation to Emerson. She will be able to describe in detail the marks she observed, the bruising and fractures and will be able to refer to the other medical reports she obtained. She will be able to provide some assessment as to whether any of those injuries were of recent origin or not, and testify as to the age of those injuries. She will be able to refer to any previous medical reports she referenced containing information about [Emerson]. Dr. Soper is able to provide her opinion evidence on causation in relation to bruises and fractures and the nature and timing of such injuries and/or probable causes of such injuries including consideration of proposed hypotheticals including her opinion as to (a) the mechanism by which the trauma could have occurred individually and/or collectively and (b) the nature or type of force that would be consistent or inconsistent with having caused the injury and how the injury would have expected to progress over time from the point the trauma was sustained. I am satisfied she can provide this evidence even though she lacks any special designation.

[68] Dr. Soper is not qualified to provide opinion evidence on timing, causation, or mechanism of head or brain injuries, nor on the probable causes of such injuries, including answering hypothetical questions respecting her opinion in this area. She is not qualified to provide opinion evidence as to the mechanism by which such a trauma could have occurred, or the nature or type of force that would be consistent or inconsistent with having caused such an injury, or how such an injury would have progressed over time from the point the trauma was sustained. She is not qualified to give opinion evidence on whether the brain injury was accidental or non-accidental or intentional.

[69] Dr. Soper will not be permitted to testify that the totality of her observations and Emerson’s condition is consistent or inconsistent with child abuse and/or non-accidental causes of death.

(Emphasis added)

3. Summary of excluded opinion evidence

[37] All told, the Crown failed to establish the qualifications of Drs. Chmiel and Soper to provide expert evidence or testify as to causation and the mechanism and timing of Emerson’s injuries. This led the trial judge to strike those portions of their expert reports in which they had, among other opinions, opined that Emerson’s death was not an accident.

E. Manslaughter acquittal

[48] The trial judge’s reasons for entering a verdict of acquittal on the manslaughter charge are summarised in the following paragraphs of the Trial Decision:

[144] I cannot say that I am not suspicious that Ms. Whitby may have done something untoward to Emerson on June 10, 2020. However, I must be guided by the law. I am left in a reasonable doubt by the statement of Chelsea Whitby for the reasons given and I am not satisfied that Chelsea Whitby’s guilt is the only reasonable inference to be drawn from the circumstantial evidence as a whole. In light of all of the evidence and the absence of evidence, assessed logically, there are other reasonable inferences that are consistent with innocence that arise on the evidence.

CONCLUSION

[145] I have a reasonable doubt that Chelsea Whitby caused Emersons’ death unlawfully. I find her not guilty.

(Emphasis added)

III. ISSUES AND ANALYSIS

A. Admission of expert opinion evidence

[50] The Crown does not argue that the trial judge incorrectly identified the governing law. The Crown submits, however, that the judge employed too high a threshold under the fourth factor of R v Mohan (i.e., a properly qualified expert). Relying principally on R v Marquard, the Crown says the threshold for qualification is low and the experience and credentials of Drs. Chmiel and Soper had satisfied it.

[53] Nonetheless, insofar as the majority decision in R v Marquard stands for the proposition that shortcomings in the qualifications of proposed experts should go to the weight of their opinion evidence and not its admissibility (at 243), it has been overtaken. Justice McLachlin wrote the majority decision in that case in 1993; it pre-dates both R v Mohan (by a year: 1994) and White Burgess (by 22 years: 2015). Those later Supreme Court of Canada decisions reject the evidentiary rule that the Crown draws from R v Marquard, as does the Ontario Court of Appeal’s decision in R v Abbey (2009) and the Supreme Court’s decision in R v Sekhon (2014). With the Goudge Report in the background (see Inquiry into Pediatric Forensic Pathology in Ontario: Report (Toronto: Ministry of the Attorney General, 2008)), Binnie J. observed in White Burgess that “[t]he unmistakable trend of the jurisprudence, however, has been to tighten the admissibility requirements and to enhance the judge’s gatekeeping role” (at para 20; quoted in the Soper Decision at para 18). Justice Binnie unambiguously stated that opinion evidence that does not meet the “threshold requirements of admissibility” under R v Mohan “should be excluded” (White Burgess at para 23, emphasis added). In the concluding paragraph of that decision (at para 45), Binnie J. affirmed his Court’s earlier decision in R v J.-L.J. where he had, for a unanimous Court, explicitly rejected the approach advanced by the Crown in this matter:

[28] In the course of Mohan and other judgments, the Court has emphasized that the trial judge should take seriously the role of “gatekeeper”. The admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties could go at the end of the day to weight rather than admissibility. [Emphasis by PJM]

(Emphasis added)

[55] Turning to the narrower issue of the threshold necessary to establish the qualifications of a witness as an expert, I do not see this ground of appeal as giving rise to a question of law alone. Respectfully, I find it inherently difficult to conceptualise a universal threshold or benchmark of experience and credentials that would be necessary to establish the expertise of witnesses. What qualifications are necessary for a witness to give an expert opinion at trial is a context-driven question that intrinsically depends on the matters at issue in the trial, the subject or nature of the proffered opinion, and the specific qualifications of the witness to credibly and reliably opine on the subject matter at issue. Put in these terms, the remaining question raised by this ground of appeal is either one of fact or of mixed fact and law, for which the Crown has no right of appeal when appealing against a verdict of acquittal in proceedings by indictment (Criminal Code, s. 676(1)(a)). I have a few comments to add that expand on this conclusion.

[60] I reiterate that, starting with the presumption that opinion evidence is inadmissible, trial judges should carefully scrutinise whether such evidence should be admitted at the time it is proffered; they should not too easily admit it on the basis that evident frailties could go to weight rather than admissibility. In respect of what threshold must be met to establish the qualification of a witness as an expert, this ground of appeal does not give rise to a question of law alone, thereby falling outside the Crown’s right of appeal under s. 676(1)(a) of the Criminal Code. I therefore conclude that the Chmiel Decision and the Soper Decision disclose no legal error.

IV. CONCLUSION

[62] I would dismiss the Crown’s appeal.

 

R v Herman-Ward, 2025 ABCJ 101

[May 27, 2025] Charter s.10(b): Access to Counsel of Choice [Justice O.A. Shoyele] 

AUTHOR’S NOTE: This case provides a sharp reminder that Charter compliance is not a do-over game—police cannot cure an initial breach of s.10(b) simply by attempting a so-called “fresh start” under R v Beaver unless very specific conditions are met.

🔹 Key Takeaways from the Case:

1. A “Fresh Start” Requires More Than Repeating the Caution

  • The mere repetition of a police caution or Charter rights does not reset the process.

  • The Court rejected the notion that “mechanical recitation” of rights—especially after a prior failure to facilitate access to counsel—could render a subsequent statement admissible.

  • A true “fresh start” requires a genuine break in the chain of events and meaningful steps to address the earlier breach, including:

    • Ensuring the accused understands they now have a real opportunity to speak to counsel, and

    • Actually facilitating that opportunity.

2. Duty to Hold Off = Core Charter Obligation

  • This decision reaffirms the core principle from R v Prosper and R v Bartle:

    If an accused asserts the right to counsel, police must hold off questioning until that right is fully realized.

  • If the accused never meaningfully consulted counsel, any questioning cannot safely proceed, no matter how many times the rights are re-read.

3. Result: Statement Excluded

  • The accused’s Charter-protected choice to obtain legal advice was undermined.

  • Since police failed to properly facilitate that access and then questioned the accused anyway after a hollow second caution, the statement was excluded under s.24(2) of the Charter.

    • This was especially appropriate given the lack of urgency or exigent circumstances.

Introduction

[1] Ms. Leticia Herman-Ward [Applicant/Accused] stands charged for a stabbing incident that occurred on June 16, 2023 in Edmonton, Alberta, Canada [Incident].

[7] Based on the evidence, the Applicant requested for the services of a lawyer at around 13:45 hours (1:45 p.m.) on June 16, 2023, following her arrest by Cst. Thomas.

[10] During cross examination, Cst. Thomas stated that he did not directly offer the services of a lawyer to the Applicant when he conducted the arrest. However, he testified that he informed the responsible officer at the DMU about the Accused’s intention and/or request to call a lawyer.

[11] Remarkably, the DMU officer that Cst. Thomas allegedly interacted with did not testify in this proceeding; thus, there is no direct evidence before this Court that the Applicant was taken into a telephone room or offered the services of a legal counsel at the DMU.

[15] The Crown in his submissions acknowledges that, from the evidence, the Applicant was arrested around 1:45 p.m, transported to the DMU, where she went through some searches integral to the in-clearance process at the DMU, and was basically put in the cell until she was interviewed by Detective Ho around 5:10 p.m.

[18] In sum, and to his credit, Crown counsel agrees that there was a breach of the Accused’s s 10(b) right because the implementation duty part was not completed. He argues, however, that the breach was “minor” given the relatively short period of time that expired between when the Accused arrived at the DMU and the time before Det. Ho got there to commence the scheduled interview.

[21] In the significant context of the Applicant’s demonstrable inexperience with state authorities, there is no evidence before this Court to show that legal counsel service was provided to the Applicant immediately upon her arrest by Cst. Thomas following her expression it request for a lawyer; nor is there any definitive evidence that she was given the reasonable opportunity to consult legal counsel at any time before her interview commenced at 17:14 hours (5:14 p.m.) with Detective Ho.

[22] Given the evidence before me, the existing jurisprudence and the gracious concession by the Crown that there was no evidence that the Applicant’s request for legal counsel was granted by Cst. Thomas, I find that in all the circumstances presented before me in this case, a breach of the Applicant’s section 10(b) Charter right – particularly, the first implementational duty – occurred during the arrest of the Applicant by Cst. Thomas.

The DMU interview: breach of s 10(b) right

[24] Det. Ho conducted the interview scheduled for the Accused at the DMU.

[30] Det. Ho asked if the Applicant wanted to speak to a lawyer but did not provide a list of legal representatives or their contact information. Instead, Det. Ho mentioned that a directory of lawyers was available. The Applicant was asked whether she wanted to waive her right to legal counsel at that moment. Det. Ho assured her that she could request a lawyer at any point, and the interview would be paused to accommodate her request. The Applicant agreed, stating, “I am confused with the whole stuff.”

[35] Counsel for the Accused submits that at the beginning of the interview Det. Ho adopted an informational style that has been jurisprudentially described as a “mechanical recitation” of Accused’s Charter, s 10(b) right. [Emphasis by PJM]

[36] Defence counsel contends that a review of the transcript indicates that Det. Ho asked the Accused whether she wanted to waive her right to contact a lawyer “at this time”? And that although the Accused appeared not to understand that question by her response, Det. Ho nonetheless continued to “recite the right” to the Accused without allowing her to think through and come up with a position

[37] Defence counsel argues that all that Detective Ho did was to recite these Charter rights to the Applicant without: (a) offering a telephone; and (b) providing any specific or actual telephone number to her.

[44] The law on “fresh start” was articulated in the Supreme Court of Canada’s decision in R v Beaver, 2022 SCC 54 [Beaver].

[45] In Beaver at paras 97-99, the Supreme Court of Canada described the legal conceptualization of a “fresh start” in the following statements:

[97] A large body of appellate jurisprudence and academic commentary has recognized that evidence will not be “obtained in a manner” that breached the Charter when the police made a “fresh start” from an earlier Charter breach by severing any temporal, contextual, or causal connection between the Charter breach and the evidence obtained or by rendering any such connection remote or tenuous. In some cases, the police may make a “fresh start” by later complying with the Charter, although subsequent compliance does not result in a “fresh start” in every case. The inquiry must be sensitive to the facts of each case.

[98] The concept of a “fresh start” under s. 24(2) of the Charter was adopted from the common law “derived confessions rule”, under which a court examines whether an otherwise voluntary confession is sufficiently connected to a prior involuntary confession to be tainted …. Under this rule, courts evaluate whether a voluntary confession is admissible, despite the prior involuntary confession, by making a “factual determination based on factors designed to ascertain the degree of connection between the two statements”, such as “the time span between the statements, advertence to the previous statement during questioning, the discovery of additional incriminating evidence subsequent to the first statement, the presence of the same police officers at both interrogations and other similarities between the two circumstances” ….

[99] In some cases, evidence will remain tainted by a Charter breach despite subsequent Charter compliance. For this reason, “[c]are should be taken in using the ‘fresh start’ label to resolve ‘obtained in a manner’ inquiries” [….] Whether evidence was “obtained in a manner” is not determined by whether the state eventually complied with its Charter obligations, but instead is based on whether there remains a sufficient causal, temporal, or contextual connection between the Charter breach and the impugned evidence. In this way, the “fresh start” analysis fits comfortably within this Court’s holistic approach to whether evidence was “obtained in a manner” that breached the Charter.

[Emphasis added]

[48] After watching the video of the interview, I agree that the advice offered by Det. Ho to the Accused during the interview about waiver of right to counsel and the Applicant’s s 10(b) right were perfunctory.

[49] The advice by Det. Ho was done in a relatively rapid, abbreviated and expedited manner that barely afforded the Accused an opportunity to realistically and meaningfully consider her position or process her options. [Emphasis by PJM]

[51] Put differently, Det. Ho’s failure to ensure that the document was signed by the Applicant supports the conclusion that her performance of the requisite implementational duty under section 10(b) of the Charter during the interview was perfunctory and/or mechanical.

[52] Consequently, I conclude that Det. Ho’s effort at a “fresh start” did not meet the conceptual requirement outlined by the Supreme Court of Canada in Beaver. [Emphasis by PJM]

[53] There cannot be a “fresh start” when the Accused’s initial request for counsel, pursuant to s 10(b) of the Charter, never expired. That initial request cannot be overridden with a repeated provision of information regarding s 10(b) right by Det. Ho to the Applicant during the DMU interview. [Emphasis by PJM]

[55] Further, and based on the Alberta Court of Appeal’s statement in Luong at para 12(6), it was a breach of the second implementational duty owed to the Applicant by Det. Ho, which required her as a state agent “to refrain from eliciting evidence from [the Applicant] until [she] has had [a] reasonable opportunity” to exercise her right to counsel that she had invoked on arrest by Cst. Thomas, when she made the request for the services of a lawyer to the constable. [Emphasis by PJM]

Should the statement in Exhibit VD#1 be excluded, pursuant to s 24(2)?

[68] Remarkably, I had earlier concluded Det. Ho’s approach was superfluous or redundantly ineffective, given that the Accused never withdrew her first request for a lawyer that was made to Cst. Thomas when she was being arrested. Put differently, the evidence provided in the incriminating statement made to Det. Ho by the Applicant is temporally and contextually connected with the initial breach by Cst. Thomas. The connection is neither remote nor severable.

[19] In R v Mack, 2014 SCC 58, the Supreme Court summarized the current approach to the “obtained in a manner” requirement under s.24(2) at paragraph 38:

Whether evidence was “obtained in a manner” that infringed an accused’s rights under the Charter depends on the nature of the connection between the Charter violation and the evidence that was ultimately obtained. The courts have adopted a purposive approach to this inquiry. Establishing a strict causal relationship between the breach and the subsequent discovery of evidence is unnecessary. Evidence will be tainted if the breach and the discovery of the impugned evidence are part of the same transaction or course of conduct. The required connection between the breach and the subsequent statement may be temporal, contextual, causal, or a combination of the three. A “remote” or “tenuous” connection between the breach and the impugned evidence will not suffice (Wittwer, at para. 21).

A. Seriousness of the alleged Charter-infringing state conduct

[76] However, contrary to Crown’s argument that the breach of the Applicant’s s 10(b) right was a minor breach, I find otherwise.

[77] It is inexplicable that the Accused who had once asked for the services of a legal counsel from Cst. Thomas and evidently was not provided one would be asked again at the DMU interview conducted by Det. Ho whether she (still) requires a lawyer at the very beginning of the interrogation – without any accounting for what happened to the previous request for legal counsel.

B. Impact of the alleged breach(es) on the Charter-protected interest of the Accused

[86] Crown counsel recognizes that the Accused gave a highly incriminating confession that is directly connected to the breach of her s 10(b) right; and acknowledges that this breach of the Accused’s Charter-protected interest is serious.

Disposition

[93] In the result, the statement provided to Det. Ho by the Applicant, Ms Herman-Ward, on June 16, 2023, and marked as Exhibit VD #1 is excluded as evidence in this proceeding, pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms.

R v McQuarrie, 2025 ONSC 2955

[May 16, 2025] Charter s.7: Access to Disclosure for Imprisoned Accused [Justice Chozik]

AUTHOR’S NOTE: This case offers a rare and impactful articulation of s.7 Charter rights in the pretrial custodial context, especially as they relate to access to disclosure and meaningful trial preparation for self-represented accused.

🔹 Key Findings and Principles:

1. Routine Custodial Conditions ≠ Constitutionally Acceptable

  • The accused’s treatment—two-hour transports each way, lockdowns, and restricted or non-existent access to digital disclosure—was characterized as normalised “inhumane conditions.”

2. The Myth of Access

  • Justice found it “a myth” that self-represented accused can properly prepare for trial while in custody due to:

    • Lack of time,

    • Lack of space,

    • Lack of technological access,

    • And lack of privacy.

3. A s.7 Violation

  • The accused’s right to make full answer and defence was compromised by systemic, predictable, and unaddressed barriers.

  • This resulted in a clear s.7 breach, as the state failed to provide the accused with the necessary tools to participate meaningfully in his own defence.

🔹 Remedy and Systemic Signal:

The Court did not stop at a declaration—it issued a detailed facilitation order, compelling institutional cooperation with the defence effort. Text of the order is linked here: order

[1] In 2011, the former Owen Sound Courthouse and Jail was closed. It had housed those accused persons awaiting trial at the courts in Owen Sound and Walkerton, Ontario. Since the closing of that jail, those accused in custody awaiting trial are housed at the Central North Correctional Centre (“CNCC”) in Penetanguishene, Ontario. CNCC is 128 to 156 kilometres from the courthouse in Owen Sound (depending on the route).

[2] Matthew McQuarrie was one of those accused persons detained at CNCC awaiting trial in Owen Sound. He was charged with first-degree murder in relation to the death of Emerson Sprung, contrary to s. 235(1) of the Criminal Code, R.S.C., 1985, c. C-46. He was arrested on May 6, 2020, and held in custody. He elected to be tried by a judge and a jury. In March 2024, he chose to represent himself. He dismissed his lawyer. His trial was estimated to require up to three months to complete. His trial commenced on June 3, 2024, before me and a jury.

[5] On May 29, 2024, at the conclusion of the evidence and submissions, I made a detailed order aimed to facilitate Mr. McQuarrie’s access to disclosure and address his housing and transportation. I indicated that the Reasons for my decision would follow.

[7] Although Reasons for my decision on this motion for directions are no longer required, I feel compelled to release these Reasons to shine light on the challenges Mr. McQuarrie faced in respect of his ability to prepare for trial and the intolerable conditions of his daily transportation for what promised to be a long trial. Other in-custody accused may face similar challenges, and the judiciary and the public must, in my view, be aware of these to ensure that access to justice and the right to a fair trial is not eroded.

Evidence Regarding Transportation and Housing:

[12] Officer Kirchberger testified that two kinds of vehicles are used by the OTU in the West Region: a “ten pack” which has ten cells or a “six pack” which has six cells. Each is 44” wide, 36” deep and 62” tall. There is a landing step to get up to the sitting area, and a stainless-steel bench. Officer Kirchberger testified that it is routine for more than one person to be in one cell measuring 44” wide x 36” deep. Ordinarily on the “ten pack” there are twenty inmates, and twelve inmates on the “six pack”. There are other vehicles with bigger cells designed to be communal, but his unit uses the “ten pack” and the “six pack”.

[13] Officer Kirchberger testified that typically a direct drive from the Owen Sound courthouse to CNCC is two hours or longer. However, it is rare for the transport vehicle to take a direct route and the timing is unpredictable. If the last transport vehicle leaves the Owen Sound courthouse at 5:00 pm, but had stops to make in Wasaga Beach or elsewhere, it could be that the inmate would arrive at CNCC as late as 8:00 pm. This was also dependant on the season, as traffic is heavier during the summer. Road construction adds to delays.

[16] The earlier shifts start at 5:30 am. The officers have duties before they hit the road, and they arrive at CNCC before 6:00 or 6:30 am. Corrections staff bring inmates to “A&D” (admissions and discharges), and the OTU early crew do the 6:00 am loop. The idea is that those inmates who have the furthest to travel are the first to leave CNCC for court. If court in Owen Sound starts at 9:00 am, the OTU should be leaving CNCC by 7:00 am. Sometimes inmates are not presented on time, so the OTU runs late for court. It is the responsibility of CNCC staff to ensure that inmates are ready for transport on time.

Evidence on Alternate Housing:

[20] Inspector Richardson of the OPP gave evidence that Mr. McQuarrie could not be housed at any of the OPP detachments closer to the Owen Sound courthouse because those detachments were not designed for long-term housing of an incarcerated person.

[29] In conclusion, Inspector Richardson was of the view that housing Mr. McQuarrie at the Chatsworth detachment would undermine the OPP’s ability to service its communities. The detachment is “a lock up facility” intended for “short term stays”. It lacks the security inherent to a correctional institution like the CNCC, and officers could not aid and care for a prisoner the way corrections staff can.

Access to Electronic Disclosure:

[30] According to the Crown, as of April 8, 2024, Mr. McQuarrie had none of the disclosure and disclosure drives were being prepared for him. The Crown submitted that these were extremely large disclosure drives, and that it would take Mr. McQuarrie weeks to review the disclosure if he spent multiple hours per day going through it. The Crown made these comments in the course of discussions about whether this trial could proceed as scheduled in June, 2024.

[31] Mr. McQuarrie, in this context, claimed that he had no issues accessing disclosure. He opposed any adjournment of the trial. At that point, he had been in custody for almost four years awaiting trial. He said he had had almost 40 hours with the disclosure, which was on a thumb drive. It later became apparent that Mr. McQuarrie was probably not accurate about this. [Emphasis by PJM]

[32] A memorandum dated May 24,2024 from Chris Jackel, the Deputy Superintendent Administration-Operations at CNCC revealed that Mr. McQuarrie accessed the disclosure prior to April 8, 2024 only once, on January 12, 2024. He then had access to the disclosure on April 16, 18, 29, 30 and May 13, 14 and 24, 2024. Neither the memorandum nor the evidence of Staff Sergeant Vaughan sets out how long he had to review the disclosure on each occasion. It is also silent on how many access requests were denied or could not be accommodated.

[33] In addition to accessing disclosure prior to the trial, Mr. McQuarrie raised concerns about accessing witness statements and other disclosure during the trial. As a self-represented litigant, he would need access to these materials before, during, and after court each day to conduct the trial. [Emphasis by PJM]

[35] Staff Sergeant Vaughan testified that CNCC is designated as a correctional institute and that it has just under 1300 inmates. It has two laptops available for inmates to review electronic disclosure, though one of these laptops had not been operational for some time. [Emphasis by PJM]

[40] Staff Sergeant Vaughan explained that on the days Mr. McQuarrie attends court, he is woken up at 6:00 am. While in his cell, he is allowed to wash up, use the washroom, and then escorted to A&D. A&D is in a separate area of the facility. He waits there until it is his turn to put on his street clothes. He is then given breakfast and placed back in a cell at A&D until the transport to court is ready.

[41] Despite this process, on the morning she testified Mr. McQuarrie left CNCC late, at 8:00 am. She could not explain why. She testified that the departure times for transportation are fixed, but if CNCC is short staffed, the transport unit would be left waiting.

[42] Given this process, Staff Sergeant Vaughan confirmed that there is no opportunity for Mr. McQuarrie to review disclosure or prepare for court in the mornings.

[43]….Staff Sergeant Vaughan testified that Mr. McQuarrie would not have any opportunity to review his disclosure in the evenings, upon his return to CNCC from court.

[44] If Mr. McQuarrie arrives back to CNCC by 6:30 p.m., he is usually fed. Inmates are usually fed between 4:30-4:45 pm, but for those returning from court food is kept on a warming device. The units lock up between 6-7 pm, so an inmate returning from court after that time could only have access to showers depending on staffing levels. Lights are out between 8 and 9 pm, but there is a night light in the cell for staff to see the inmates. Theoretically, this night light could be used by an inmate to read.

[45] Staff Sergeant Vaughan testified that the disclosure provided to an inmate at CNCC cannot leave CNCC. When it is received, it goes through security, is recorded and logged by staff in a secure place. Inmates are allowed to bring “court papers” to and from court, but not actual disclosure — it is kept at CNCC. When an inmate requests to see it, he must do so in the special room. He cannot have it in his cell. It is signed out to him and then must be returned and signed back in.

[46] Thus, Mr. McQuarrie could not review disclosure during the trial while in his cell on the open living unit or while in transit to and from court, or while waiting at A&D.

[48] Staff Sergeant Vaughan testified that special arrangements would have to be made to ensure that Mr. McQuarrie could access his disclosure during the trial. He could be put into segregation where he could have access to a laptop and other disclosure in his cell, and where it would be easier for him to have access to a shower after court. Depending on the reason, and with special effort, she could arrange for Mr. McQuarrie to access disclosure before the trial. For example, despite very little staffing and the facility being locked down the day before, she was able to arrange for him to access disclosure.

[49] The day after Staff Sergeant Vaughan testified, Mr. McQuarrie advised that he had been subjected to bad treatment at A&D. He advised that the correctional officers “threw” him in a cell, took his notes and the disclosure package I ordered to be provided to him in court for his review overnight. Over his objections, a correctional officer read through the disclosure and his notes despite Mr. McQuarrie’s objections that it was confidential. Mr. McQuarrie advised the court that the correctional officers asked him whether we in court were “drunk” and told Mr. McQuarrie that Staff Sergeant Vaughan’s word did not depict what they can do or what happens at CNCC. Mr. McQuarrie indicated to the court that the correctional officers were clearly “mad” at him because of the testimony given in court the day before and that they deliberately took it out on him.

Findings and Analysis:

[50] No judicial participant including Mr. McQuarrie should be subjected to a commute of at least four hours per day but likely longer, exclusive of waiting times in the morning or afternoon, day after day for a hearing that may last as long as six to ten weeks or longer. No judicial participant should be subjected to this commute while seated on a metal bench in a cage measuring 44” inches wide with another person. No judge or lawyer or any person could tolerate such conditions, and function well when called upon to do so in the courtroom. [Emphasis by PJM]

[51] I found that for an accused person like Mr. McQuarrie this commute jeopardized his ability to participate in his trial as guaranteed under s. 7 of the Charter. In Mr. McQuarrie’s case, because he already suffered from severe challenges in maintaining composure and focus during proceedings, the circumstances of his daily commute promised to cause grave difficulties. In court, he was often stressed, volatile and disruptive. This commute would impact him profoundly and risk the fairness of the trial.

[54] Being stuck between a rock and a hard place, I decided that Mr. McQuarrie could not be housed anywhere other than CNCC. There are simply no other viable options.

[55] In the end, I ordered that Mr. McQuarrie be transported directly at the end of each court day to and from court to CNCC for the duration of the trial. This was the best I could do to ameliorate what I think are inhumane conditions he would have been subjected to during daily transport day in and day out given the length of the trial. This order was necessary to ensure the possibility of a fair trial.

[58] In my view, the notion that an incarcerated accused like Mr. McQuarrie could review disclosure and prepare for trial while in custody is a myth. With 1300 inmates, some serving sentences but many waiting trial, and one working laptop available, it is not hard to conclude that access to disclosure is very limited. At any given time, there could be multiple inmates at CNCC who are representing themselves. [Emphasis by PJM]

[59] Almost all disclosure today is electronic. In serious cases, like this one, disclosure contains thousands of documents including text messages, various reports, witness statements, police officer notes and videos. Many of these are voluminous and can only be accessed electronically. Such disclosure takes hours to review. As the Crown said, it would take Mr. McQuarrie weeks to go through it once, if he had access to it for several hours each day.

[60] The evidence revealed that the reality at CNCC is that access to disclosure is very restricted. When paper or electronic disclosure is sent to CNCC, it is carefully documented, logged, and secured by the staff. The inmate for whom that disclosure is intended has no access, unless his request to access it can be accommodated by staff. Frequent lockdowns and notorious staffing shortages impact access to disclosure even further.

[61] More importantly, during the trial, a self-represented accused like Mr. McQuarrie could not access to the disclosure to prepare each day.

[63] To enable Mr. McQuarrie to review his disclosure and prepare for trial, arrangements were made whereby he would have access to electronic disclosure in the courtroom on a laptop supplied by Court Services. Legal Aid Ontario agreed to purchase an additional laptop to be used by Mr. McQuarrie exclusively at CNCC securely and returned to Legal Aid Ontario at the conclusion of the case. Mr. McQuarrie was placed into segregation for the duration of the trial, where he could have the laptop in his possession in his cell in private. The Legal Aid Ontario laptop was not transported to and from CNCC, but rather remained in Mr. McQuarrie’s personal possession in his cell at CNCC — this avoided the daily search of the laptop and risks associated with it’s loss or damage and other security concerns. The Crown and the police worked diligently to install the required software and disclosure onto both computers, and to ensure that they were working correctly, and ensured that Mr. McQuarrie knew how to access it.

[64] A paper copy of the voluminous disclosure was prepared and organized into labelled folders and bankers’ boxes by the police and the Crown. This was provided to Mr. McQuarrie at the courthouse and remained there with the laptop supplied by Court Services. During the trial, he had easy access to these materials in the prisoner’s box. Times were set aside for him to spend in a secure cell at the courthouse with the laptop and the bankers’ boxes of disclosure to prepare for trial, meet with amicus and to prepare for the trial.

[65] These extraordinary arrangements were necessary to try to give Mr. McQuarrie a shot at having some semblance of a fair trial. However, these were exceptional steps for an unacceptable situation that sadly seems to have become the norm for self-represented in custody accused. I must emphasize that the order I made is not an order this court should or could be expected to make as a matter of course.

The Order Made:

[66] Given the evidence I heard, I made the following Order:

[67] In my view, this order was necessary to afford Mr. McQuarrie an opportunity to make full answer and defence and to give effect to his constitutional right to a fair trial, and society’s expectation that justice be done.

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Written By Pawel Milczarek

Pawel is a partner at Sitar & Milczarek. When he’s not litigating he writes the Defence Toolkit blog.

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