[22] The accused submits that the trial judge erred in finding that his detention (i.e., the drive) was lawful. He submits that the trial judge erred in her application of the legal principles to the facts and that the facts do not satisfy the correct legal test. More particularly, he maintains that the detention was not carried out by the police officers in a reasonable manner, rendering it arbitrary. He asserts that it was unreasonable for the police officers to (1) remove him from the police headquarters in the middle of the night to take him on a lengthy drive without his consent; (2) use abusive language towards him; (3) not provide him with shoes, a jacket or a blanket while outside; and (4) keep him in handcuffs during the drive.
[23] The Crown submits that it was not unreasonable for the police officers to have continued the investigation by driving the accused to Arborg and that their conduct during the drive was not so egregious as to render the detention arbitrary. The Crown contends that the trial judge identified the correct legal test and there was no error in the application of the legal principles to the facts of the case that justifies this Court interfering with her findings.
[24] In our view, the trial judge correctly identified the test under section 9 of the Charter: “detention must be authorized by law, the authorizing law itself must not be arbitrary and the manner in which the detention is carried out must be reasonable” (decision at para 38, citing R v Le, 2019 SCC 34 at para 124). The trial judge properly found that there is authority to support the legality of the police actions in taking a detainee from a police station or interview room for the purposes of furthering the investigation, as long as it is reasonable to do so (see Storrey at 254).
[25] In Storrey, the Supreme Court of Canada has made it clear that the essential role of police is to investigate crimes, and that role and function can and should continue after police have made a lawful arrest (see ibid).
[26] Further, the trial judge correctly stated: “To put it another way, an otherwise lawful detention may be rendered arbitrary where the conditions of the detention are unrelated to or inconsistent with its lawful purpose” (decision at para 41, citing R v Steadman, 2021 ABCA 332 at para 64).
[27] We are satisfied that the trial judge articulated the correct legal principles to determine whether there had been a breach of section 9 of the Charter and applied the principles correctly.
[28] The trial judge’s findings are amply supported by a review of the evidence. She found that the conditions of detention were not unrelated to or inconsistent with its lawful purpose. In this case, the drive was part of the ongoing investigation to attempt to have the accused confess and admit that he moved the victim’s body to the Arborg area. It was not unreasonable for the police officers to take him to that location to attempt to elicit a reaction or a confession.
[29] As for the circumstances of the drive, the trial judge found, and we agree, that the police officers’ conduct was “not flawless” (decision at para 56). The accused was not provided with shoes, a jacket, a blanket or anything to stay warm when he was taken out of the police vehicle. As well, the police officers used offensive and profane language. However, the trial judge was not satisfied that their conduct was so egregious as to render the detention arbitrary. While the police officers’ conduct should not be condoned, their conduct can be contrasted with the conduct of the officer in R v Z (MJ), 2022 MBCA 61 at paras 37, 39, 64-65, where the officer used denigrating language and implied threats, which was found to exceed permissible boundaries.
[30] The accused submits that it was an error for the trial judge to state: “In some cases, this kind of conduct may render inadmissible any resulting statement given by a detainee. It cannot, in this case, lead to a finding that [the accused’s] detention was arbitrary” (decision at para 54). The accused submits that once there is a breach of section 9, it should not matter whether the accused provided any statement.
[31] In our view, the trial judge correctly recognized that the voluntariness analysis in connection with a statement does not circumscribe the section 9 Charter right. The section 9 analysis is distinct from the voluntariness analysis. That said, in this case, the accused maintained his right to silence throughout the entire investigation, including during the drive. As a result, there was no statement, and no voluntariness inquiry was required.
[32] We are satisfied that the trial judge made no error in law in her analysis. She articulated the correct legal test and applied it properly to the facts as she found them. She reviewed the relevant evidence, including the evidence of the police officers, which she found to be credible. She made no palpable and overriding errors in her findings of fact. Applying the law to the facts, she correctly concluded that the detention was not arbitrary.