COURT OF APPEAL FOR ONTARIO
Rosenberg, Watt and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Callum Connelly
Appellant
Joseph Di Luca, duty counsel, for the appellant
Joanne Stuart, for the respondent
Heard: March 16, 2009
On appeal from conviction entered by Justice Margaret Eberhard of the Superior Court of Justice, sitting with a jury, dated May 2, 2008.
1The issue in this appeal from conviction for robbery by Eberhard J. and a jury is whether the appellant’s right to counsel under s. 10(b) of the Charter of Rights and Freedoms was violated when police questioned the appellant despite his desire to speak to his own lawyer. In the unusual circumstances of this case, and given the trial judge’s findings of fact, it is my view that the appellant’s rights were not violated.
2Accordingly, I would dismiss the appeal.
THE FACTS
3In the early morning hours of November 6, 2005, someone flagged down a taxi driver in the City of Barrie. When they reached a remote stretch of the road, the passenger pulled out a crowbar, threatened the driver and demanded his money. The driver fled the taxi and the perpetrator jumped into the front seat and drove off. The perpetrator drove a short distance to an elementary school where he abandoned the taxi. Approximately 30 minutes later, the appellant placed a 911 call from a shopping plaza and claimed to have been the victim of an assault by a Barrie taxi driver.
4Meanwhile, the police had come to the assistance of the taxi driver, who provided a description of his assailant. When the 911 call came in, the police officer who had been dealing with the taxi driver drove to the shopping plaza, bringing the taxi driver with him. Once at the plaza, the taxi driver spontaneously pointed out the appellant as the person who had robbed him. The police thereupon arrested the appellant. However, in certain respects, the description of the assailant initially given by the taxi driver did not match the appellant. Accordingly, the police decided that the appellant was also a victim and released him unconditionally.
THE TAKING OF THE STATEMENT
5Although the appellant was released at the scene, the police continued to suspect he was involved in the offence. On January 15, 2006, Constable Harris spoke to the appellant on the telephone and advised him that he would be arrested and charged with robbery and public mischief, and told him to come to the police station. The appellant said that he would come in after work with a lawyer. The appellant did not come in that day, but did come to the station on January 16, accompanied by his father. He arrived around 7:20 p.m. and was immediately arrested for robbery and public mischief. Constable Harris informed the appellant of his right to counsel under s. 10(b) and asked him if he wished to call a lawyer. The appellant said that he did, that he wanted to call Angela McLeod. He provided the officer with Ms. McLeod’s telephone number. The officer asked the appellant if he had been in contact with Ms. McLeod that day and the appellant said that he had.
6Constable Harris said he would call Ms. McLeod and wait for her to call back and the appellant could speak to her in private. The appellant asked, “When do you actually talk to me?” The officer said that since the appellant wanted to talk to a lawyer he had to give the appellant that opportunity, “And then afterwards we’ll—we’ll sit down an – and chat.” The appellant asked what would happen if he could not get hold of her and the officer said that the appellant would have the opportunity to call another lawyer or a Legal Aid lawyer. The officer said, in effect, that they could only do the best they could and if the lawyer was “out at a movie and not answering her—her telephone then you have the opportunity to talk to any other lawyer or—or we can call a Legal Aid lawyer”.
7The appellant then said, “Well what would I say if I said that I think I might’ve done it?” Constable Harris said he thought that would be the right thing for the appellant to say, to deal with this and that he had made a mistake. The officer then said that since the appellant had asked to talk to a lawyer, he was obligated to contact that lawyer before continuing the conversation. But, instead of calling the lawyer, the officer talked about how he would tell him the evidence he had against him and engaged in a long description of the “positive things” about his current situation, for example, that nobody was hurt, the property was recovered, and that the appellant turned himself in. He continued as follows:
If you—if you choose to tell me, you know, what happened, is positive. All these things are gonna help ya at the end of the day. The judge says – to look down and say well he – he turned himself in. He admi – he admitted his involvement. He did this, that, and the other thing, a-all that is gonna be, you know, that all goes down on my – the Crown brief that goes before the courts, that you were cooperative, uhm you know, again, you took responsibility for what ya did. And y-you know I can’t promise you what’s gonna happen, it’s out of my hands. It’s up to the Crown what sort of sentence they seek. I don’t see it as jus – I’ve been doing this for almost 21 years, from past experience, uhm I don’t think it’s gonna be, uh if you’re convicted a-anything – anything very lengthy. Uhm the fact that you’re now employed, i-if that’s the case …
8The officer then went on to discuss bail with the appellant and returned to the fact that the appellant had made a mistake and that there might be other issues like drugs or alcohol. The appellant said he was depressed from coming to Canada. The officer again said he would call the lawyer, but instead of doing so talked to the appellant about a bad experience he had with another police force and how he could understand how traumatic it was for the appellant to leave Ireland. The appellant then said:
I haven’t got a clue why I done it, so. I remember an acid tab from the summer and I was at my lowest point and I (inaudible) with a bottle of rum … I don’t know what happened. I took the tab and then I remember being sick, like sick and I couldn’t walk and then next I know that I’m friggin’ – in a friggin’ taxi.
9The officer then left the room to call Ms. McLeod. He returned 19 minutes later at about 8:00 p.m. and said he had left two messages at the lawyer’s office. He also said he had not been able to find any other number for her. He told the appellant that he left a message for Ms. McLeod that the appellant would be held for bail at the Barrie court. The officer asked the appellant if he knew any other lawyer. The appellant said “no”. He then asked the appellant if he wanted him to call a Legal Aid lawyer but the appellant said, “I’d rather have Angela McLeod”. After some further conversation while the officer and the appellant looked through the telephone book, the officer said he would check with the appellant’s father to see if he had any other numbers for Ms. McLeod. The officer also said that the appellant would have a chance to talk to her before bail court the next day.
10Constable Harris left the room and returned 26 minutes later at 8:30 p.m. to say that the appellant’s father did not have any other telephone numbers. The appellant asked if he would be able to call Ms. McLeod before bail court. The officer said that he would. The officer then repeated that he was investigating a robbery and public mischief, that he had called Ms. McLeod and left messages. He confirmed that the appellant did not want to talk to any other lawyer including a Legal Aid lawyer. He then began to question the appellant about the robbery. The appellant then gave an incriminating statement.
THE TRIAL JUDGE’S REASONS
11The trial judge found that there was no urgency in questioning the appellant that evening, but the appellant had had the opportunity to speak to counsel before turning himself in and he did so. Constable Harris had made all reasonable efforts to contact the appellant’s counsel of choice and had no reason to believe that by waiting any longer, the appellant’s counsel would return his calls. On the other hand, the appellant was eager to tell his story and was satisfied with the assurance that he would be able to contact his lawyer before the bail hearing. The trial judge was not persuaded that the appellant “ever asserted right to counsel as a precondition for giving a statement”. She continued as follows:
I make the finding not on the basis of implied waiver by answering questions. Rather, I find that knowing that he had the right to counsel before giving any statement, Mr. Connelly remained eager to tell his story and his assertion of the right to counsel was satisfied by the assurance that contact before the bail hearing could be accomplished.
12Given the appellant’s eagerness to talk, the trial judge found it was not reasonable to require Constable Harris to continue to insist that the appellant wait before telling his story. The trial judge was satisfied that the appellant was not misled in any way by the officer as to his options for contacting counsel. She concluded as follows:
I find that Detective Constable Harris made reasonable attempts to obtain counsel of choice in the circumstances and that the option of duty counsel was reasonably offered. Callum Connelly declined as he may. His statement is admissible in the circumstances.
ANALYSIS
13As this court said in R. v. Badgerow (2008), 2008 ONCA 605, 237 C.C.C. (3d) 107, at para. 44,
Where an accused asks to speak to a particular lawyer on arrest or detention, the police are obliged to give the accused a reasonable opportunity to exercise his or her right to counsel of choice and to hold off in questioning the accused so long as the accused is reasonably diligent in exercising the right.
14Further, “the police must be diligent in ensuring that an accused has a reasonable opportunity to exercise his or her rights, and may not rely on answers to ambiguous questions as a basis for assuming that an accused has exercised his or her rights”: Badgerow, at para. 46.
15In this case, the appellant asked to speak to a particular lawyer. As I understand her reasons, the trial judge found as a fact that the appellant wanted to speak to his lawyer, not to obtain advice before speaking to the police, but to ensure that she would be available for advice prior to his bail hearing the following day. I have not been persuaded that this finding of fact is unreasonable. In light of those findings, despite the very able submissions of duty counsel, Mr. Di Luca, who assisted the appellant, in my view, the appellant’s right to counsel was not violated.
16The governing principle where a detainee asserts a right to consult with a particular counsel is set down in R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3 at 10 – 11:
Although an accused or detained person has the right to choose counsel, it must be noted that, as this court said in R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435, a detainee must be reasonably diligent in the exercise of these rights and if he is not, the correlative duties imposed on the police and set out in Manninen 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233] are suspended. Reasonable diligence in the exercise of the right to choose one's counsel depends upon the context facing the accused or detained person. On being arrested, for example, the detained person is faced with an immediate need for legal advice and must exercise reasonable diligence accordingly. By contrast, when seeking the best lawyer to conduct a trial, the accused person faces no such immediacy. Nevertheless, accused or detained persons have a right to choose their counsel and it is only if the lawyer chosen cannot be available in a reasonable time that the detainee or the accused should be expected to exercise the right to counsel by calling another lawyer. [Citation and emphasis added.]
17In this case, there was no urgency to proceeding with questioning of the appellant. The offence had been committed months earlier and the appellant was to be detained in custody pending the bail hearing the next day. There was no suggestion that any investigative procedures had to be performed immediately. The appellant was therefore entitled to attempt to obtain advice from Ms. McLeod, if he wanted, prior to being questioned by the police, provided she could be available within a reasonable time.
18However, the appellant also had to exercise reasonable diligence in the exercise of his rights. On the trial judge’s finding, the appellant was not interested in consulting counsel before speaking to Constable Harris. There was evidence to support this finding. Although the appellant initially asked to speak to counsel, he almost immediately wanted to know when the officer would speak to him. It is particularly telling that the appellant then wanted to know what would happen if the officer could not get hold of his lawyer. After the officer’s accurate response, the appellant asked what he should say if he thought he might have done it. Again it appears that the appellant was more interested in talking to the officer than obtaining immediate advice from Ms. McLeod. The trial judge was satisfied that the officer had not attempted to “fool him into answering questions”. I take this as a finding that the police officer had not attempted to elicit evidence from the appellant. While perhaps it would have been more prudent of the officer not to answer the appellant’s questions and to refrain from encouraging him to make a statement at that point in time, it was open to the trial judge to make the finding that the officer’s response was reasonable in the circumstances.
19Further, as the trial judge pointed out, on several occasions when the appellant began to make inculpatory remarks, the officer stopped him, reminded him that he had asked to speak to his lawyer and made efforts to contact the lawyer. Finally, it was the appellant, not Constable Harris, who steered the conversation towards bail. Given the conversation that ensued between the officer and the appellant thereafter, it was open to the trial judge to find that the appellant’s interest in speaking to counsel of choice only related to bail. The appellant has not demonstrated that his s. 10(b) rights were violated.
DISPOSITION
20Accordingly, I would dismiss the appeal.
Signature: “M. Rosenberg J.A.”
“I agree David Watt J.A.”
“I agree G.J. Epstein J.A.”
RELEASED: “MR” May 20, 2009
