WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Elton Anderson
Before: Justice Peter T. Bishop
Heard on: February 14, 2017
Reasons for Judgment released on: March 14, 2017
Counsel:
- Elizabeth Hellinga, counsel for the Crown
- Mark Van Walleghem, counsel for the defendant Elton Anderson
BISHOP J.:
Charges
1Elton Anderson is charged that on or about the 15th day of March, 2016 did commit an assault on G.W. contrary to Section 266 of the Criminal Code.
And furthermore;
2On or about the 15th day of March in the year 2016 in the said Region, did for a sexual purpose touch G.W., a person under the age of sixteen directly with a part of his body, to wit vaginal intercourse, contrary to Section 151 of the Criminal Code.
And furthermore;
3On or about the 15th day of March in the year 2016 at the Municipality of Sioux Lookout in the said Region, did commit a sexual assault on G.W. contrary to Section 271 of the Criminal Code.
Background
4At the beginning of this hearing, the Crown withdrew the Section 271 charge.
5On February 14, 2017 a voir dire was commenced to determine whether the applicant was denied his right to counsel as he didn't understand the nature of the charges contrary to Section 10(b) and to exclude the penal swab obtained contrary to Section 8 of the Charter of Rights and Freedoms.
Evidence on Voir Dire
6At 1:48 a.m. on March 15, 2016, the police responded to an assault charge and the applicant was read his rights to counsel. At first there was no response from the applicant.
7Provincial Constable Roberts then read the caution and asked the applicant whether he understood to which he replied "uh-huh" and whether he wished to contact a lawyer and the response was "no".
8At 7:12 a.m. the police had grounds to re-arrest the applicant on the charges of sexual assault and sexual interference.
9Provincial Constable Cook read the applicant his rights to counsel and caution again, all of which were recorded.
10Provincial Constable Cook completed a search incident to arrest which included the seizure of the applicant's underwear, and a taking of a penile swab. The applicant did the swab himself and deposited the samples into their requisite bags.
11At 7:57 a.m. Provincial Constable Rudd contacted duty counsel and the duty counsel called back at 8:05 a.m. The applicant was taken to a room to speak privately with the duty counsel. The call was completed at 8:10 a.m.
12At the commencement of the voir dire, the applicant abandoned his position with respect to the admissibility of the penile swab, but wished to have his statements excluded pursuant to Section 24(2) of the Charter of Rights and Freedoms as his rights to counsel were infringed.
13During the voir dire, a video interview of the accused was not produced due to technical difficulties but a transcript was prepared from that video and the Applicant and the Crown agreed with some minor corrections to the transcript.
Issue: Section 10(b) Rights to Counsel
14There is a trilogy of cases dealing with rights to counsel, namely R. v. Sinclair 2010 SCC 35, [2010] 2 S.C.R. 310 and R. v. McCrimmon 2010 SCC 36, [2010] 2 S.C.R. 402 and R. v. Willier 2010 SCC 37, [2010] 2 S.C.R. 429.
15In Sinclair supra the majority decided that the police must give the accused additional opportunity to speak with counsel where a change in the circumstances resulted from:
a) New procedures involving the accused;
b) A change in jeopardy facing the accused; and
c) Reason to believe that the initial information provided was deficient;
d) As well, the change in circumstances must be objectively observable to retrigger Section 10(b) right to counsel.
16From the transcript of the video Detective Sergeant Saudino confirmed that the applicant had spoken to duty counsel. It is submitted by the crown that the mere fact of additional questions came to the Appellant's mind after completion of his consultation is insufficient to retrigger Section 10(b) rights.
17The applicant was able to recite accurately the charges he was facing.
18Detective Sergeant Saudino explained to the applicant what his charges meant.
19At that time, the applicant stated he wanted to speak to a lawyer again and he wanted to know about his legal aid.
20Whether or not the evidence should be excluded is a matter for the Judge. The decision turns on the application of three factors:
The seriousness of the Charter breach;
The impact of the breach on the Charter protected interest of the accused;
Society's interest in adjudication on the merits.
21The question is whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of evidence would bring the administration of justice into disrepute.
22With respect to the seriousness of the breach, the factors to consider include:
Whether the officer is acting in good faith (good faith militates in favour of admission).
Whether the Charter breach was deliberate, planned, or premeditated, or spontaneous (supports exclusion).
Whether there was a need to prevent the disappearance of evidence.
Whether the failure was due to institutionalized policy.
23With respect to the second factor, namely the impact of the Charter protections of the accused; the inquiry must focus on the impact of the breach. Minor impacts are more likely to result in the evidence being admitted and a more serious or unreasonable search for example a body cavity search, the more likely it is that exclusion will occur. Fleeting and technical impacts on an accused's person's rights would not normally result in exclusion.
24With respect to the third factor, society's interest in adjudication on the merits, society generally expects that criminal cases will be adjudicated on the merits. This third line of enquiry asks whether the truth seeking function of the criminal trial process will be better served by admitting or excluding the evidence. Where the Charter breach makes the evidence less reliable (such as a breach in which the accused was compelled to talk, the more likely it will be excluded). However, where evidence is relevant and reliable, excluding it may undermine the truth seeking function of the justice system and render the trial unfair from the public perspective, bringing the administration of justice into disrepute. Relevant and reliable evidence is more likely to be admitted.
25The Crown submits that admitting the evidence would not bring the administration of justice into disrepute and so the evidence should be admitted.
Decision
26I am finding in this case, there was a Charter breach with respect to right to counsel which was a minor as he had already spoken to counsel. The accused then stated that he did not understand the meaning of the charges. The police officer defined and explained the charges to him. That is the role and responsibility of counsel and police should not give legal advice.
27He asked to speak to a lawyer and stated that he understood. He also wanted to talk to duty counsel about legal aid and had more questions for duty counsel. He should have been given an opportunity, once again, to speak to duty counsel. Nothing had changed in the investigation, there was no new evidence after the accused initially spoke to duty counsel and I infer that his main concern was to obtain legal aid.
28In this case the officer was acting in good faith, the Charter breach was not deliberate, planned or premeditated and just happened. There was no need to preserve any demonstrative evidence. The police officer did not intimidate or coerce evidence from the accused as he wanted to talk and cooperate. He presented as a young Indigenous unsophisticated individual doing what was right.
29I am finding on the totality of the evidence, presented herein, the court must decide that exclusion of his statements would undermine the truth seeking function of the justice system and render the trial unfair from the public perspective bringing the administration into disrepute. Relevant and reliable evidence should be admitted.
30I am finding that without these statements, the prosecution case would fail. To admit the evidence would not bring the administration of justice into disrepute. I am finding that these statements should be admitted into evidence.
Released: March 14, 2017
Signed: Justice Peter T. Bishop