COURT OF APPEAL FOR ONTARIO
Pardu, Brown and Huscroft JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Steven Gignac
Appellant
Daniel Santoro and Nicola Fernandes, for the appellant
Jeremy Streeter, for the respondent
Heard: January 6, 2020
On appeal from the conviction entered on August 1, 2017 and the sentence imposed on February 28, 2018 by Justice Graham Wakefield of the Ontario Court of Justice.
REASONS FOR DECISION
1The appellant was convicted of drug offences related to drugs found in a safe in the living room of his house where he lived with his wife. The appellant submits that the trial judge erred in failing to exclude a statement he made shortly after police violated his rights to counsel under section 10(b) of the Canadian Charter of Rights and Freedoms.
2The trial judge concluded that the appellant was not a credible witness on the Charter motion. On that basis, he dismissed the appellant’s application to exclude the evidence. He did not expressly deal with the argument that the officer’s evidence alone was sufficient to establish Charter violations and result in the exclusion of the evidence and it falls to this court to consider that argument.
3Upon arrest at 3:01 a.m. on January 22, 2016, the appellant indicated he did not wish to give a statement until after he had consulted counsel. The arresting officer continued to read from a pre-printed card to ask twice whether the appellant wished to make a statement. The appellant indicated that he did not.
4The appellant was handcuffed and placed in the back of a van to await transport to the Durham police station. Shortly after, the appellant asked the arresting officer whether his wife was going to be arrested. The arresting officer told the appellant that “there [was] a search warrant being executed...at his home in Oshawa” and that he “couldn’t really give an answer as to whether or not [the appellant’s] wife was actually going to be arrested”. The appellant then said there was a safe in the living room of his home, the safe had cocaine in it, and the cocaine was his. The appellant also advised the officer of the combination to the living room safe where the drugs were found.
5The appellant submits that the officer violated his s. 10(b) Charter rights because 1) the officer asked twice whether the appellant wanted to make a statement, even though the appellant said he wanted to speak to counsel; and 2) the officer’s truthful response to the appellant’s question amounted to an elicitation of a statement.
6The Crown concedes that the officer committed the error described in R. v. G.T.D., 2018 SCC 7, [2018] 1 S.C.R 220 (“G.T.D.”), by twice asking the appellant whether he wished to make a statement after the appellant indicated he wished to consult counsel. However, the Crown disagrees that the officer’s truthful response to the appellant’s spontaneous question could in any way be construed as an elicitation of a statement from the appellant.
7The Crown concedes that the temporal connection between the admitted Charter violations and the appellant’s incriminatory statements is sufficient to require a consideration of s. 24(2) of the Charter.
8The Crown submits that the following factors favour admitting the appellant’s statements:
- the individual good faith of the officer who read the rights to counsel and posed the questions from a pre-printed card some two years before the decision in G.T.D.;
- the absence of any causal connection between the Charter violations and the incriminatory statements made;
- the Charter violations’ negligible effect on the appellant’s Charter protected interests;
- the reliability of the evidence; and
- the strong societal interest in a trial on the merits.
Analysis
9The appellant spontaneously asked police if his wife was going to be arrested. The officer answered truthfully that a search warrant was then being executed at the appellant’s home and that the officer did not know whether the appellant’s wife was to be arrested. This truthful answer cannot be construed as an attempt by the officer to elicit evidence from the appellant. The officer’s answer to the appellant’s question did not therefore violate the appellant’s s. 10(b) Charter rights.
10However, we agree that the Charter violations conceded by the Crown and their temporal connection to the incriminatory statements, which the Crown also concedes, are sufficient to engage s. 24(2) of the Charter: R. v. Plaha (2004), 2004 ONCA 21043, 188 C.C.C. (3d) 289 (Ont. C.A.) at para. 45.
11We therefore turn to whether admitting the evidence obtained in breach of the Charter would bring the administration of justice into disrepute. This requires assessing three factors: 1) the seriousness of the Charter infringing state conduct; 2) the impact on the Charter protected interests of the accused; and 3) society’s interest in an adjudication of the case on the merits: R. v. Grant, 2009 SCC 32, [2009] 2 SCR 353 at para. 71.
12In Grant at paras. 91-98, the Supreme Court of Canada pointed out that courts have tended to exclude statements obtained in breach of the Charter. Having said that, the court also noted at para. 96 that particular circumstances may attenuate a Charter breach’s impact on the accused’s protected interests, for example:
[I]f an individual is clearly informed of his or her choice to speak to the police, but compliance with s. 10(b) was technically defective at either the informational or implementational stage, the impact on the liberty and autonomy interests of the accused in making an informed choice may be reduced. Likewise, when a statement is made spontaneously following a Charter breach, or in the exceptional circumstances where it can confidently be said that the statement in question would have been made notwithstanding the Charter breach, the impact of the breach on the accused’s protected interest in informed choice may be less. [Citation omitted.]
Seriousness of the Charter infringing conduct
13There is no real dispute that the arresting officer acted in good faith. We acknowledge that the officer’s pre-printed card, which indicated what was to be read to an arrested person, raises concerns about systemic failures to protect Charter rights. However, as the Alberta Court of Appeal noted, there was a degree of legal uncertainty on this issue that tempered the seriousness of the breach: R. v. G.T.D., 2017 ABCA 274, 57 Alta. L.R. (6th) 213, at para. 93 (“G.T.D. (ABCA)”). Although G.T.D. was based on long established Supreme Court of Canada jurisprudence, the decision only brought clarification some two years after the arrest in this case.
Impact on the appellant’s Charter protected interests
14The police must hold off from attempts to elicit evidence from an accused until he or she has had a reasonable opportunity to consult counsel: G.T.D. at para. 2. This case is different from G.T.D., in which the accused made incriminatory statements in response to the questions posed from the flawed standard caution.
15Here, there was no causal connection between the Charter violations and the appellant’s incriminatory statements. The appellant clearly understood that he did not have to speak to police and asserted his right to consult counsel. He refused to make any statement after asserting his wish to speak to counsel, despite the two questions about whether he wished to make a statement after that assertion. The breaches up to that point had no impact on his Charter protected interests.
Societal interest in a trial on the merits
16There is no doubt the statement was voluntary. It was reliable evidence. The combination opened the living room safe in which the drugs were found. The statement was strong evidence of the appellant’s knowledge of the contents of the safe and control of those contents. Twelve 75 microgram per hour Fentanyl patches, as well as cocaine and other drugs, were in the safe. This court has reiterated the dangers that Fentanyl poses to the community on several occasions.
17Balancing these factors, we conclude that admitting the appellant’s statement would not bring the administration of justice into disrepute. The appeal from conviction is dismissed.
18The appeal from sentence concerns the sentences imposed for offences related to drugs found in the appellant’s car when he was arrested. In the event the conviction appeal related to the drugs found in the living room safe is dismissed, the appellant does not pursue the sentence appeal. Accordingly, the appeal from sentence is also dismissed.
“G. Pardu J.A.”
“David Brown J.A.”
“Grant Huscroft J.A.”