R. v. Fountain, 2017 ONCA 596

minicounsel

[Indexed as: R. v. Fountain]

Ontario Reports

Court of Appeal for Ontario

Rouleau, Trotter and Paciocco JJ.A.

July 12, 2017

136 O.R. (3d) 625 | 2017 ONCA 596

Case Summary

Charter of Rights and Freedoms — Counsel — Police officer telling accused that his counsel of choice would not be available until following day and asking him if he wanted to wait or to speak to duty counsel — Accused choosing to wait — Officer cautioning him and interrogating him — Trial judge erring in finding that Prosper warning was not required because accused was not reasonably diligent in seeking legal advice — Prosper warning triggered by accused's apparent change of mind about speaking to counsel without delay — Accused not waiving his right to counsel — Police caution not adequate substitute for Prosper warning — Accused's rights under s. 10(b) of Charter violated — Admission of his statements to police bringing administration of justice into disrepute — Canadian Charter of Rights and Freedoms, s. 10(b).

The accused was charged with armed robbery and other offences. When he was arrested, he stated that he wanted to speak to a particular lawyer. After trying unsuccessfully to reach that lawyer, the investigating officer told the accused that counsel of choice would not be available until the following day and asked him if he wanted to wait or to speak to duty counsel. The accused said that he wanted to wait. The officer then cautioned him and interrogated him. The accused made incriminating statements which were crucial to the Crown's case. He later consulted with duty counsel and said nothing else of significance after that consultation. The trial judge found that the accused's rights under s. 10(b) of the Canadian Charter of Rights and Freedoms were not violated and dismissed his application to exclude his statements to the police under s. 24(2) of the Charter. The accused was convicted. He appealed.

Held, the appeal should be allowed.

The trial judge erred in finding that the police were not required to give the accused a Prosper warning (advising him of his right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police not to elicit evidence from him until he had had that reasonable opportunity) because the accused was not reasonably diligent in seeking legal advice in that he decided to wait until the next day to speak to counsel of choice. The trial judge failed to take into account the fact that, in choosing to wait, the accused was taking up an option that was presented to him by the officer and had no reason to believe that he was compromising his constitutional rights by doing so. The accused's decision to wait until the next day could not fairly be taken as exhibiting an absence of reasonable diligence. The trial judge also erred when he held that the accused did not qualify for a Prosper warning because he did not expressly indicate that he had changed his mind about speaking to a lawyer. A Prosper warning is triggered even by an apparent change of mind, and it was apparent that the accused was no longer seeking to speak to a lawyer without delay. The trial judge's finding that the accused waived his right to consult counsel without delay was also in error. In the absence of a Prosper warning, there was no basis for inferring that the accused understood what he was giving up when he chose to wait until the next day. Finally, the trial judge erred in finding that, if a Prosper warning was required, the police caution was an adequate substitute for that warning. A Prosper warning requires more than knowledge of the right to remain silent. The accused's rights under s. 10(b) of the Charter were violated.

Statements obtained in violation of the right to counsel will generally be excluded under s. 24(2) of the Charter. The Charter breach in this case fell towards the more serious end of the good faith/bad faith continuum. Prosper has been the law since 1994, and either the officer knew about it but failed to give the appropriate warning or should have known about it. The impact of the breach on the accused's Charter-protected rights was significant. Without the statements, the prosecution failed. However, condoning the police failure to respect the accused's right to counsel by admitting his statements would do more to harm the long-term repute of the administration of justice than excluding the statements.

The statements the accused made before consulting duty counsel are excluded. The Crown agreed that without these statements, the conviction could not stand. The conviction is quashed and an acquittal entered.

Cases and Legislation Cited

Cases Applied:

Other Cases Referred To:

Statutes Referred To:

Proceeding

APPEAL by the accused from the conviction entered on October 22, 2015 by Javed J. of the Ontario Court of Justice.

Counsel:

Delmar Doucette, for appellant
Rachel Young, for respondent

The judgment of the court was delivered by

PACIOCCO J.A.

A. Overview

1Jason Fountain ("Mr. Fountain") was convicted after trial by judge alone on four counts of armed robbery contrary to s. 344(1) of the Criminal Code, R.S.C. 1985, c. C-46; four counts of forcible confinement contrary to s. 279(2) of the Criminal Code; and breaking and entering a dwelling house to commit an indictable offence therein contrary to s. 348(1)(b) of the Criminal Code. These convictions are based on a finding by the trial judge that Mr. Fountain was a party to a home invasion robbery that occurred on September 25, 2014 in which drugs and electronics were stolen, and the four occupants were threatened with a gun and tied up. Mr. Fountain was sentenced to four years in prison, minus time served.

2Mr. Fountain appeals these convictions. He urges that the trial judge erred in finding that his right to counsel was not breached after his arrest, and in not excluding statements he made before speaking to a lawyer. Specifically, Mr. Fountain claims that the investigating officer, Detective Paolo Dellipizzi ("Det. Dellipizzi") should have given him a "Prosper warning" when he opted to wait until the next day to speak to his lawyer after his lawyer could not be contacted the day of his arrest, despite repeated efforts. A Prosper warning, developed in R. v. Prosper, [1994] 3 S.C.R. 236, is meant to ensure that detainees understand what they are giving up when they abandon their attempt to get legal advice without delay. Mr. Fountain claims that, given the circumstances of this case, in the absence of a Prosper warning his statements must be excluded.

3I agree with Mr. Fountain that a Prosper warning was required, and that the trial judge erred in rejecting Mr. Fountain's s. 10(b) Canadian Charter of Rights and Freedoms challenge.

4Specifically, the trial judge erred in finding that Mr. Fountain lost entitlement to a Prosper warning because he was not reasonably diligent in seeking legal advice. This finding ignores the context. When Mr. Fountain declined the offer to call a legal aid lawyer and chose to wait until the next day to speak to his own counsel, he was accepting an option that Det. Dellipizzi held out. Mr. Fountain had no reason to believe that he was compromising his constitutional rights by making that choice.

5The trial judge also erred when he held that Mr. Fountain did not qualify for a Prosper warning because he did not expressly indicate that he had changed his mind about speaking to a lawyer. In fact, a Prosper warning is triggered even by an apparent change of mind, and it was apparent that Mr. Fountain was no longer seeking to speak to a lawyer without delay when he chose to wait until the next day. Certainly, that is how Det. Dellipizzi saw it. That being so, Det. Dellipizzi should have given him a Prosper warning.

6The trial judge's finding that Mr. Fountain waived his right to consult counsel without delay is also in error. Without a Prosper warning having been given, there is no basis for inferring that Mr. Fountain understood what he was giving up when he chose to wait until the next day.

7It was also an error for the trial judge to find that if a Prosper warning was required, a police caution is an adequate substitute for that warning. It is not. A proper Prosper warning requires more than knowledge of the right to remain silent.

8Mr. Fountain's s. 10(b) rights were therefore violated. In all of the circumstances, the statements he made before consulting counsel require exclusion under s. 24(2) of the Charter.

9These statements were the lynch-pin of the Crown's case, which was built primarily on Mr. Fountain's admissions that he drove the two intruders to the invasion, and that he had been to the address where he is seen on the surveillance tape with the other two suspects on the day of the invasion. The Crown required the latter admission to date the surveillance tape since, at trial, there proved to be no objectively reliable way of confirming when the video was taken.

10The prosecution against Mr. Fountain cannot survive the exclusion of these statements. I would therefore allow Mr. Fountain's appeal, quash the convictions and enter acquittals.

B. Facts Relevant to the Right to Counsel

11Events leading to Mr. Fountain's impugned statement began at 1:31 p.m. on October 14, 2014, when Det. Dellipizzi arrested Mr. Fountain and advised him of his right to counsel. Mr. Fountain asked Det. Dellipizzi to have his girlfriend, who was present at the time of arrest, call his lawyer.

12Another officer transported Mr. Fountain to the station at 1:45 p.m. Det. Dellipizzi remained at the scene to search Mr. Fountain's car and speak with his girlfriend.

13When Mr. Fountain arrived at the station at 2:10 p.m., he confirmed that he was advised of his right to counsel and told the booking officer that he wished to contact a lawyer. He identified Richard Aitken ("Mr. Aitken") as his lawyer and provided his phone number.

14At 2:13 p.m., Det. Dellipizzi spoke to Mr. Fountain's girlfriend, who provided him with a phone number for Mr. Fountain's lawyer, which matched the number Mr. Fountain had furnished at the station.

15Det. Dellipizzi first attempted to reach Mr. Aitken at 2:35 p.m. on his way to the station after searching Mr. Fountain's car. He reached Mr. Aitken's Oshawa office and spoke to someone there who said that Mr. Aitken was in Peterborough but would call him back. Based on what he was told, Det. Dellipizzi assumed that Mr. Aitken was in Peterborough on another case.

16At 5:03 p.m., Det. Dellipizzi visited Mr. Fountain at his cell and advised him that Mr. Aitken was out of town on another matter.

17At 6:16 p.m., Det. Dellipizzi called Mr. Aitken's Oshawa office again, leaving a message for Mr. Aitken to call.

18At 6:57 p.m., Det. Dellipizzi called Mr. Fountain's girlfriend, who advised that Mr. Aitken's office had said that a lawyer would "be there in the morning".

19It was not until 8:13 p.m. that Mr. Fountain was brought to an interview room. After advising Mr. Fountain generally about why he was in custody, Det. Dellipizzi raised the right to counsel issue. The following exchange occurred after Det. Dellipizzi told Mr. Fountain that he had tried to reach Mr. Aitken twice:

Fountain: I haven't -- I haven't been able to.

Dellipizzi: Yeah, that's why I'm here to explain it to you. I did call twice. Um, I spoke to a receptionist or whatever they are there. Uh, Tanya [your girlfriend], I talked to her . . .

Dellipizzi: . . . But she told me she talked to some lady at the law office, who said there's going to be a lawyer there. Okay?

Fountain: Okay.

Dellipizzi: . . . for whatever reason uh, Mr. Aitken's office hasn't called here. I don't know why.

Fountain: Mmm-hmm.

Dellipizzi: Uh, do you want to call another lawyer or free Legal Aid uh, and talk to one of the uh, lawyers in regards to uh, these charges? Any lawyer you want or we can call free Legal Aid.

Fountain: I'll just -- I'll just wait till tomorrow, I guess, if they're going to have someone there tomorrow cuz it's already late now, isn't it?

Dellipizzi: No, they're open. Legal -- Legal Aid is open 24 hours.

Fountain: No, I know.

Dellipizzi: And other lawyers. . . .

Fountain: What time is it?

Dellipizzi: It's uh, eight-twenty.

Fountain: Yeah?

Dellipizzi: Um, okay. So, you -- what do you want to do? You want to just wait till the morning or . . .

Fountain: Yes.

Dellipizzi: . . . do you want somebody called? Okay.

20At that point, Det. Dellipizzi cautioned Mr. Fountain. He gave both the primary caution about the right to silence and the secondary caution warning Mr. Fountain to disregard any prior influences to speak that may have come from other officers. Det. Dellipizzi then began to question Mr. Fountain.

21After an exchange that took some 30 pages to transcribe, the following conversation occurred:

Fountain: Like you keep asking me the same questions. Like I've asked to speak to my lawyer, like . . .

Dellipizzi: Okay. Well, yeah, you can.

Fountain: Well. . . .

Dellipizzi: The only thing is, she [sic] hasn't called. That's why I said if you want, you can call another lawyer . . .

Fountain: Well, the thing is . . .

Dellipizzi: . . . or free Legal Aid.

Fountain: Like this is an illegal interrogation without me speaking to a lawyer, is it not?

Dellipizzi: It's up to you, man. You're the one that dictates to me what you want done.

Fountain: Well, you're -- you keep pushing and pushing. I -- I . . . .

22Det. Dellipizzi recommenced questioning Mr. Fountain. Shortly thereafter, this exchange took place:

Fountain: Like honestly, I don't know why you keep asking me this if you already know everything. I keep saying I want to talk to my lawyer.

Dellipizzi: Like I said, if you want, I . . . .

Fountain: I said . . . .

Dellipizzi: Unfortunately, Mr. Atkins -- Mr. Atkins isn't returning the calls. But if you want, you tell me what lawyer if there's a second lawyer that you want to call or a third, whatever, we can call him, or I can call Legal Aid. But I can't force him to call here. I don't know why he's not called.

Fountain: Then call Legal Aid, then.

Fountain: I don't know what my rights are, like. . . .

23Mr. Fountain spoke to a legal aid lawyer at 9:34 p.m. After that, he made no comments of substance and was returned to his cell at 9:51 p.m.

C. Decision Below

24The trial judge dismissed Mr. Fountain's Charter application. He concluded that the evidence obtained from Mr. Fountain's interrogation was not obtained in a manner that violated his right to counsel under s. 10(b) of the Charter.

25The trial judge found that Det. Dellipizzi complied with the informational component of s. 10(b) by informing Mr. Fountain of his right to counsel, and with the implementation component by trying to contact Mr. Fountain's lawyer on two occasions. However, the trial judge found that Mr. Fountain did not act in a reasonably diligent manner by waiting until the following day to speak to his lawyer rather than speaking to another lawyer immediately. He held that a Prosper warning to advise Mr. Fountain of the rights he was giving up was not required, both because of the absence of reasonable diligence and because Mr. Fountain had not expressly said he did not want to contact counsel. The trial judge then held that, if he was wrong, Mr. Fountain waived his right to counsel and the caution given to Mr. Fountain was an effective substitute for a Prosper warning.

26The trial judge went on to hold that, if he was wrong in his assessment of the Charter violation, he would not have excluded Mr. Fountain's statement under s. 24(2) of the Charter.

D. Analysis

(1) The Prosper Warning

27The "Prosper warning" is meant to equip detainees with the information required to know what they are giving up if they waive their right to counsel. A Prosper warning is not required in all cases. It is needed only if "[a] detainee has asserted the right [to counsel] and then apparently change[s] his mind" after reasonable efforts to contact counsel have been frustrated: R. v. Smith, 44 O.R. (3d) 373, at p. 382 O.R. In such circumstances"the burden of establishing a waiver of those rights is on the Crown" and is a high one, requiring proof of a clear, free and voluntary change of mind made by someone who knew what they were giving up: Smith, at p. 382 O.R.; Prosper, at pp. 274-75 S.C.R. A proper Prosper warning is therefore significant in enabling the Crown to prove waiver of the right to counsel in such cases.

28It is helpful in understanding the Prosper warning to appreciate the rights that are at stake when a detainee waives their right to counsel. Specifically, when a detainee asserts their desire to exercise the right to counsel, either expressly or by not waiving their right to counsel"the police are obliged to cease questioning and are under a duty to facilitate the exercise of that right": Smith, at p. 380 O.R. The temporary obligation to cease questioning also extends to other efforts to elicit evidence from the detainee, and is often referred to as the obligation or duty to "hold off", since there is no problem in properly using the detainee as a source of evidence after they have exercised or relinquished their right to counsel: Prosper, at p. 269 S.C.R.

29In Prosper, at p. 274 S.C.R., Lamer C.J.C. described the required Prosper warning and its legal triggers in this way:

. . . I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, the police are required to tell the detainee of his right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity.

30If the detainee is not reasonably diligent in exercising the right to counsel, the duty to hold off will be suspended and the police may question the detainee: R. v. Bartle, [1994] 3 S.C.R. 173, at p. 192 S.C.R.; R. v. Brydges, [1990] 1 S.C.R. 190, at p. 204 S.C.R. The obligation on the police to make efforts to facilitate contact with counsel will also be suspended: R. v. Willier, [2010] 2 S.C.R. 429, at paras. 43-44. The right to receive a Prosper warning at the time will also be lost. After all, there is no need to advise a detainee of what they will lose if they waive their right to consult counsel without delay, where the detainee has already forfeited that right by not being reasonably diligent in exercising it.

31The Crown argues that the trial judge applied this law correctly and was entitled to hold, on the evidence, that a Prosper warning was not required. I disagree.

(a) Reasonable Diligence

32The trial judge's primary basis for ruling that a Prosper warning was not needed was his finding that Mr. Fountain had not been reasonably diligent in exercising his right to counsel by requesting to wait until morning to call Mr. Aitken instead of consulting duty counsel immediately. The trial judge explained that despite Det. Dellipizzi telling Mr. Fountain that legal aid is open 24 hours and rectifying any misconceptions Mr. Fountain had regarding the availability of counsel, Mr. Fountain "persisted in his request to wait until the following day, not availing himself of duty counsel . . . [T]his was not acting reasonably diligently."

33This finding by the trial judge that Mr. Fountain was not reasonably diligent because he chose to wait until the following day to speak to his lawyer is wrong. It fails to take into account the context of Mr. Fountain's decision to delay speaking to counsel.

34Understood in context, Mr. Fountain was not being obstinate. He was not trying to impede the investigation. Nor was he signalling by his conduct that he was not serious about wanting to speak to a lawyer without delay. He was simply taking up an option that had been presented to him by Det. Dellipizzi, as if it was a benign choice that Mr. Fountain was entitled to make.

35Specifically, after Mr. Fountain had been waiting in custody for approximately six and a half hours, Det. Dellipizzi took Mr. Fountain to the interview room. Det. Dellipizzi then explained that efforts to reach Mr. Aitken had failed but that a lawyer would be present the next day at Mr. Fountain's bail hearing. Mr. Fountain suggested he would wait until morning. Without in any way indicating that it would be problematic for Mr. Fountain to wait to speak to his lawyer, Det. Dellipizzi offered Mr. Fountain the following options:

Dellipizzi: Um, okay. So, you -- what do you want to do? You want to just wait till the morning or . . .

Fountain: Yes.

Dellipizzi: . . . do you want somebody called? Okay.

36When Mr. Fountain was offered the binary option of calling a legal aid lawyer now or waiting until the next day to speak to his own lawyer, he would have had no reason to suspect that he would be forfeiting the "hold off" protection he had been enjoying, should he choose the latter option. Mr. Fountain was entitled to proceed as though either choice was reasonable. In this context, there was therefore nothing unreasonable in Mr. Fountain opting to wait until the next day.

37Indeed, rather than demonstrating a lack of reasonable diligence on the part of Mr. Fountain, the way in which Mr. Fountain came to choose to speak to his lawyer the next morning reinforces the importance of a Prosper warning. As explained, the purpose of a Prosper warning is to ensure that detainees know what they are giving up when they abandon their efforts to speak to counsel without delay. If a detainee is not advised that they will lose a constitutional protection if they choose an offered option, that offer can operate as a trap. If Det. Dellipizzi was going to treat an option he was offering Mr. Fountain as authority to begin using Mr. Fountain as a source of evidence before he had spoken to a lawyer, Det. Dellipizzi should have told Mr. Fountain this. Yet, he did not do so.

38In these circumstances, Mr. Fountain's decision to decline duty counsel and wait until the next day cannot fairly be taken as exhibiting an absence of reasonable diligence, and the trial judge erred by treating it as such.

(b) Change of Mind

39Another reason offered by the trial judge as disqualifying Mr. Fountain's right to a Prosper warning was that Mr. Fountain had not declined the opportunity to consult with counsel. Specifically, the trial judge said:

In this case, I am of the view that a Prosper warning was not warranted, because a warning is only required where a detainee is diligent, but unsuccessful in contacting a lawyer, and subsequently declined any opportunity to consult with counsel. That is not what happened here. The detainee was not diligent, and, in any event, never expressly said he did not want to consult with counsel.

40Picking up on this, the Crown contends that since Mr. Fountain wanted to speak to his lawyer the next day, he did not change his mind about wanting to speak to his lawyer -- a necessary trigger for a Prosper warning -- and therefore he does not qualify for a Prosper warning.

41Before turning to the trial judge's conception of what declining an opportunity to consult counsel entails, I will begin with the Crown's submission. If the Crown's point is that in order to trigger a Prosper warning, a detainee must decline the opportunity to consult a lawyer now and in the future, the focus is wrong. Prosper is not about waiver of the right to counsel in its entirety. It is about the waiver of the immediate right to counsel without delay. The fact that Mr. Fountain wanted to speak to a lawyer at some point in the future does not bear on whether he declined the opportunity to consult counsel without delay.

42If the Crown's point is that, subjectively, Mr. Fountain did not decline the opportunity to consult counsel without delay because he wanted to speak to his lawyer at the first available opportunity, which happened to be the next day, it is also unhelpful. Had this been so, Mr. Fountain's rights would still have been violated. The law knows of but two ways that the constitutional right of a detainee to consult counsel without delay can be lost -- through a lack of reasonable diligence in exercising that right and through waiver. I have already addressed the reasonable diligence point, and ex hypothesi, someone who still wants to speak to counsel without delay has not waived that right.

43Turning to the trial judge's reasoning, I would note in passing that the submission that Mr. Fountain did not change his mind about wanting to speak to counsel is difficult to square with the trial judge's alternative finding that Mr. Fountain waived his right to counsel without delay by saying that he would wait to speak to his lawyer in the morning. After all, a waiver of the right to counsel by someone who has previously and continuously asked to speak to counsel necessarily entails a change of mind about wanting counsel without delay.

44There is, however, a more pressing problem with the trial judge's treatment of the Prosper prerequisite that a detainee must decline the opportunity to consult counsel. As a matter of law, Mr. Fountain did not have to expressly say that he changed his mind about wanting to speak to counsel without delay in order to trigger entitlement to a Prosper warning. Just as a waiver can be implicit, so too can a change of mind about getting the kind of "immediate" legal advice that s. 10(b) is meant to protect: Bartle, at pp. 191-92 S.C.R. Accordingly, if it is apparent that a detainee has changed his mind about wanting to speak to counsel without delay, and no other legal impediments to the right to a Prosper warning are operating, that warning must be given.

45As Rosenberg J.A. makes clear in Smith, at p. 382 O.R., the obligation is placed on the police to give a Prosper warning "where the detainee has asserted the right [to counsel] and then apparently change[s] his mind" (emphasis added). This is so because the purpose of the Prosper warning is to ensure that an apparent waiver of the detainee's rights under s. 10(b) is a real waiver -- made clearly and unequivocally, with full knowledge of the detainee's s. 10(b) rights: Prosper, at pp. 274-75 S.C.R.; Smith, at pp. 382-83 O.R.

46While Lamer C.J.C. does refer in Prosper, at p. 274 S.C.R., to a detainee that "indicates that he or she has changed his or her mind", when he summarized the rules developed in Prosper, at p. 278 S.C.R., he said:

Upon the detainee doing something which suggests he or she has changed his or her mind or no longer wishes to speak to a lawyer, police will be required to advise the detainee of his or her right to a reasonable opportunity to contact counsel and of their obligation during this time not to elicit incriminating evidence from the detainee.

(Emphasis added)

47In Prosper, Mr. Prosper did not express a change of mind about speaking to a lawyer. His change of mind was inferred because, after learning that free duty counsel services were not available, Mr. Prosper commented that he could not afford a lawyer when asked if he wanted to call one.

48In this case, Mr. Fountain clearly had an apparent change of mind from his earlier insistence on speaking to a lawyer now, when he said he wanted to wait until the next day to speak to a lawyer. Without question, Det. Dellipizzi believed it to be apparent that Mr. Fountain was declining his s. 10(b) right to consult without delay. After all, once Mr. Fountain said he would wait to speak to his lawyer, Det. Dellipizzi believed he no longer had to "hold off" in questioning him. Det. Dellipizzi should have provided Mr. Fountain with a Prosper warning before doing so.

(c) Waiver

49I do not accept the Crown's submission that the trial judge was correct in finding that even if a Prosper warning was required Mr. Fountain waived his right to consult counsel without delay by choosing to wait until the next morning to call his lawyer. In Prosper, at p. 275 S.C.R., Lamer C.J.C. affirmed that "a person who waives a right must know what he or she is giving up if the waiver is to be valid". He explained that the additional Prosper informational requirement "ensures that a detainee who persists in wanting to waive the right to counsel [that they had been trying to enjoy] will know what it is that he or she is actually giving up": Prosper, at p. 274 S.C.R.

50In this case, absent a Prosper warning, it is not possible for the Crown to meet its burden of showing that Mr. Fountain's apparent change of mind about consulting counsel without delay was a knowing and effective waiver. There is nothing on the record to show that he knew what he would be giving up. Indeed, Mr. Fountain protested the continued interrogation because he did not know what his rights were.

51The Prosper warning should have been given, and if Mr. Fountain then persisted in declining duty counsel and waiting until the next day to speak to his lawyer, the Crown would have been in a position to demonstrate a proper waiver. Since the Prosper warning was not provided, the waiver finding made by the trial judge was wrong. A waiver finding could not reasonably have been made on this factual record.

(d) Standard Caution versus a Prosper Warning

52I disagree with the Crown's final contention that the trial judge was correct to hold, in the alternative, that even if a Prosper warning was required, Mr. Fountain was given enough information to satisfy the law. The only warnings given to Mr. Fountain were through police cautions about his right to remain silent. The function of a Prosper warning is not to alert the detainee of their right to silence. It is meant to ensure that a waiver of the right to counsel has integrity.

53As is clear from the content of the warning designed by the Supreme Court in Prosper, a proper Prosper warning is meant to alert the detainee to the fact that, when they change their mind about wanting counsel, the "hold off" period in using them as a source of evidence is suspended. It is also meant to communicate to the detainee that if they want to speak to counsel now that they are better informed they will be given a reasonable opportunity to do so, even though they may have already signalled that they have changed their mind about wanting to speak to counsel. None of this information is communicated to the detainee by saying that they have a right to silence.

54This case exemplifies the point. After being cautioned about his right to silence, Mr. Fountain expressed doubt about whether he was being interviewed legally because he had not exercised his right to counsel. He had no idea what he was giving up by choosing to wait until the next day to speak to his lawyer.

55The trial judge was therefore wrong to hold that "the [police] caution given to the defendant was an effective substitute for the required Prosper warning, given its temporal nexus to the circumstances of the interrogation". It was not.

(e) Conclusion on the s. 10(b) Breach

56The trial judge therefore erred in law in several respects on the Prosper warning issue. In the factual context of this case, there was no basis for a finding that Mr. Fountain was not reasonably diligent in exercising his right to counsel; it was an error to require an expressed statement by Mr. Fountain that he did not want to consult counsel; there was no factual basis for finding Mr. Fountain knowingly waived the right to consult counsel without delay; and the cautions were not an adequate substitute for a Prosper warning. A Prosper warning should have been given on the uncontested evidence.

(2) The s. 24(2) Charter Remedy

57Section 24(2) of the Charter directs that evidence obtained in a manner that infringes a Charter right "shall be excluded if it is established that, having regard to the circumstances, the admission of it in the proceeding would bring the administration of justice into disrepute." In R. v. Grant, [2009] 2 S.C.R. 353, 2009 SCC 32, the Supreme Court set out a three-part test for determining the admissibility of evidence under s. 24(2): (i) the seriousness of the Charter-infringing state conduct; (ii) the impact of the breach on the accused's Charter-protected interests; and (iii) society's interest in the adjudication on the merits.

58The three-part Grant test is applied to determine whether evidence should be excluded based on the impact of admission on the repute of the administration of justice.

59In this case, the trial judge engaged in what he described as the "somewhat artificial" analysis of whether s. 24(2) would have required exclusion, had he found a breach. This is not a case, however, where considerable deference is required in considering his conclusion: R. v. MacMillan, 2013 ONCA 109, 114 O.R. (3d) 506. His s. 24(2) findings were tainted by the material errors he made.

60First, the trial judge considered that any Prosper violation would be at the minor end of the seriousness spectrum because Mr. Fountain had been advised of his right to counsel, and offered the services of duty counsel. Second, he concluded that the effect of the breach on Mr. Fountain was attenuated because he had clearly been told that what he said could be used against him. Both of these conclusions are tainted by the trial judge's failure to appreciate that the Prosper warning is intended to ensure that waivers of the right to counsel are integral and informed.

61This court must therefore reconsider anew whether s. 24(2) requires exclusion of the evidence. Although there are no fixed rules that apply, writing for the majority in Grant, McLachlin C.J.C. and Charron J. state, at paras. 95 and 96, that the admission of statements, particularly when obtained in violation of the right to counsel, will generally be excluded. That, of course, is what is at stake here.

62Approaching the matter more specifically using the components of the Grant test, the Charter breach in this case falls towards the more serious end of the good faith/bad faith continuum.

63While Det. Dellipizzi presented as being careful to ensure that he did not violate Mr. Fountain's right to counsel, and attempted to facilitate that right on more than one occasion, good faith involves much more than good intentions. Prosper has been the law since 1994. It is not an obscure decision addressing a rare event. It is a long-standing precedent governing not only a ubiquitous investigative technique -- the police interview -- but every case where the police use a detained suspect as a source of evidence.

64As Rosenberg J.A. pointed out in Smith, at para. 384 O.R."Prosper instructs the courts to be sensitive to the rights of an accused who it is alleged has waived his rights." The same instruction has been given by the Supreme Court to police officers, who are expected to be educated about their core Charter duties. Where an officer aware of this body of law is presented with someone who has been insisting on their right to counsel and the officer concludes that they have apparently changed their mind after efforts to reach counsel have been frustrated, the officer should take the necessary steps to ensure that the waiver was real and informed. That did not happen. If Det. Dellipizzi was aware of the law, he should have followed it. If he was not aware of the law, he should have been.

65Second, the impact of the breach on Mr. Fountain's rights was significant. It resulted in Mr. Fountain giving incriminating evidence to police after being interviewed without knowing his rights.

66In saying this, I accept the Crown's argument that the nature of the s. 10(b) violation has an important bearing on the impact of the breach: Grant, at para. 96. What I do not accept is the Crown's contention that Mr. Fountain's case falls within one of the illustrations offered by the Grant majority of when statements can be admitted in spite of a Charter violation.

67Specifically, this was not a technical violation. The Prosper warning is meant to ensure that individuals who have been frustrated in their attempts to enjoy their right to counsel do not give up the right to consult counsel without delay without a complete understanding of what is at stake. The Prosper warning is a substantial protection designed to preserve the integrity of a centrally important Charter right to secure legal advice when detained.

68This case illustrates how substantial this kind of breach can be. Once it became clear to Mr. Fountain that Det. Dellipizzi was claiming the legal authority to interview him even though he had not spoken to counsel, Mr. Fountain decided to speak to duty counsel immediately, and then became a much less fruitful source of information.

69Based on the relative seriousness of the breach and the impact it had on Mr. Fountain, this case benefits from the guidance offered in this court's decision in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at paras. 62-63. Given the strength of the first and second Grant inquiries, this is a strong case for exclusion, unlikely to be tipped back by the third inquiry -- society's interest in the adjudication on the merits.

70To be sure, the evidence targeted for exclusion was crucial to the Crown's case. Without it, the prosecution fails. And while statements obtained during interrogations are not generally considered to be a particularly reliable form of evidence, I agree with the Crown that there are fewer reasons to be suspicious about Mr. Fountain's statements in this case given that Det. Dellipizzi's approach to questioning was not oppressive or overbearing, and given the voluntariness finding of the trial judge.

71Still, the Charter right at stake here exists, in part, to ensure detainees have reasonable access to legal advice in order to rectify the disadvantage they have in preserving the right to silence, and so that they can learn about their legal rights relating to their detention. It enables detainees to get beyond learning they have a right to silence, to receiving advice on how to exercise that right. In my view, condoning the failure by the police to respect this well-entrenched Charter right by admitting Mr. Fountain's statements would do more harm to the long-term repute of the administration of justice than the exclusion of his statements.

72The statements made by Mr. Fountain prior to his consultation with duty counsel should therefore be excluded pursuant to s. 24(2) of the Charter.

E. Disposition

73For the foregoing reasons, I would allow the appeal.

74The Crown did not contest Mr. Fountain's claim that his prosecution cannot survive the loss of this evidence and, on the record before us, that is certainly true. The appropriate outcome, in my view, is therefore to substitute an acquittal for the conviction of the trial judge.

Appeal allowed.

Notes

The evidentiary record is unclear as to whether any effort was made at the time to contact Mr. Aitken. However, Mr. Fountain alleges no breach at this stage.

End of Document