COURT OF APPEAL FOR ONTARIO DATE: 20211202 DOCKET: C63048
Watt, Benotto and Trotter JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Andrew Burnett Appellant
Mark C. Halfyard and Christopher S. Rudnicki, for the appellant Tracy Kozlowski, for the respondent
Heard: September 21, 2021 by video conference
On appeal from the conviction entered by Justice Anne M. Molloy of the Superior Court of Justice, sitting with a jury, on April 2, 2015.
Watt J.A.:
[1] Four people were together in an elevator. J.B., her jealous lover, Cory Campbell (“the deceased”), and J.B.’s friends, the appellant and Jeramy Henry. Everyone had the same destination in mind – J.B.’s apartment.
[2] The deceased was armed. He had a knife he had recently picked up tucked into the waistband at the back of his pants. The appellant was armed as well. He had a loaded handgun because he always carried a handgun.
[3] As the elevator ascended towards J.B.’s apartment, the appellant and deceased got into a confrontation. J.B. tried to intercede. The elevator doors opened. Jeramy Henry left. The appellant drew his gun. He shot the deceased once in the chest. The shot killed the deceased.
[4] The appellant and Jeramy Henry were jointly charged and tried on a count of first degree murder. The Crown alleged that the murder was planned and deliberate. The appellant said it was self-defence.
[5] The jury concluded that the appellant did not shoot the deceased in lawful self-defence. But the jury was equally not satisfied that the unlawful killing was planned and deliberate first degree murder. They found the appellant guilty of second degree murder and Jeramy Henry guilty of manslaughter.
[6] The appellant challenges his conviction on two unrelated grounds. These reasons respond to his claims of error and explain why I have concluded that his appeal should be dismissed.
The Background Facts
[7] The circumstances surrounding the death of the deceased are confined to a single day. An overview of them will suffice to put the grounds of appeal in perspective.
The Principals and Their Relationship
[8] J.B. and the deceased dated for about eight months. Various witnesses [^1] described their relationship as turbulent and chaotic. They fought constantly. Each accused the other of infidelity. The deceased tried to control J.B.’s activities. With whom she associated. How she dressed. Her social activities. He was intensely jealous and controlling.
[9] J.B. wanted to end her relationship with the deceased. But the deceased was contrary-minded. He harassed her endlessly. With telephone calls. And text messages. And unannounced visits to her apartment.
[10] J.B. knew the appellant and the co-accused Henry from their common involvement in different aspects of the music business.
[11] Prior to the evening of the deceased’s death, he and the appellant had never met. The co-accused Henry had met the deceased before, but the men were not well acquainted.
The Suspicion Intensifies
[12] Sometime prior to his death, the deceased’s general jealousy and suspected infidelity of J.B. focused on her friendship with the appellant. The deceased believed that J.B. was sleeping with the appellant. He bombarded her with accusatory telephone calls, texts, and voicemails. In one text message, the deceased threatened to kill J.B.’s paramour.
The Afternoon Visit
[13] Earlier on the day of the shooting, J.B. called the appellant. She told the appellant that she was going through some troubles and wanted to see him. They had not spoken for some time. The appellant agreed to see J.B. He called the co-accused to arrange for a ride to J.B.’s apartment where they would “hang out” until the appellant’s previously arranged recording session later that day.
[14] The appellant and Henry arrived at J.B.’s apartment building shortly after 3:00 p.m. J.B. greeted the men and escorted them upstairs to her apartment. They sat around, drank, and smoked some marijuana. J.B. took a shower. She explained that she was afraid to do so when alone in the apartment for fear that the deceased would break into the apartment when she was in the shower.
[15] As the appellant recalled it, J.B. explained that she and the deceased were fighting constantly. He manhandled her and, on one occasion, choked her. J.B. showed the appellant a notebook. In it was a letter she had written to him. J.B. proposed to sleep with the appellant to “get over” the deceased. The appellant thought that she wrote him the letter to avoid disclosing its contents to Henry who was in the apartment with them. He texted her back “when?”.
[16] For the balance of the afternoon, the deceased repeatedly called J.B. on her cellphone. He told her that he could hear male voices in the background. He wanted to know who the men were. J.B. put the deceased on speaker phone. The calls continued. The deceased said that he was on his way to J.B.’s apartment.
[17] The appellant and Henry left J.B.’s apartment and drove to the recording studio where the appellant had his appointment.
The Friend’s Apartment
[18] Around 9:00 p.m. or 9:30 p.m. that evening, J.B. took her children to a friend’s apartment on another floor of the building where J.B. lived. She asked her friend to babysit the children because she (J.B.) was embroiled in another argument with the deceased. A short time later, J.B. returned to her friend’s apartment. She asked to use the friend’s phone because the deceased had taken hers. J.B. said she feared for her life. She expected that the deceased was going to attack her. She used her friend’s phone to call the appellant.
[19] The deceased arrived at the friend’s apartment. He pounded on the door. He claimed that he wanted to return J.B.’s cellphone. When J.B.’s friend allowed the deceased to come into the apartment, J.B. and the deceased continued to argue. The deceased accused J.B. of infidelity with the appellant. They called each other names. The deceased paced around the apartment. He armed himself with a knife. He said, “I am going to die tonight” and “I’m not going to go like a sucker”. He called members of his family.
[20] J.B. made another telephone call from her friend’s apartment, then left the apartment. Shortly thereafter, the deceased left the apartment.
The Appellant Returns
[21] While the appellant was at the recording studio, Henry received two phone calls from J.B. She was crying, angry, and upset. She and the deceased were fighting yet again. Henry offered to return to J.B.’s apartment to check up on her. The appellant then tried to call J.B. multiple times. The deceased intercepted one of the appellant’s calls to J.B. He accused the appellant of having an affair with J.B. The men argued. The appellant and Henry decided to return to J.B.’s apartment.
[22] The appellant was armed with a handgun as he and Henry made their way back to J.B.’s apartment. In 2011, the appellant’s best friend was shot to death on the doorstep of the appellant’s home. The appellant may have been the shooter’s intended target. Since that time, the appellant had always carried a gun. On three previous occasions, someone had shot at him. On another occasion, he had been hit by a stray bullet that left him with a permanent limp.
The Shooting
[23] The appellant and Jeramy Henry arrived at J.B.’s apartment building at about 11:00 p.m. The elevator door opened in the lobby. J.B. and the deceased were inside. The appellant and deceased exchanged words. Once again, the appellant denied sleeping with J.B. He got into the elevator with J.B. The deceased followed them into the elevator. The deceased continued to confront the appellant. J.B. stepped between them. Jeramy Henry walked into the elevator as it headed towards J.B.’s apartment.
[24] As the elevator ascended, the deceased and appellant continued their verbal altercation. When the elevator reached the floor where J.B. lived, the deceased said, “as soon as we leave the elevator, you guys are dead”. The elevator doors opened. Henry ran out into the hall. The appellant followed. The deceased grabbed the appellant by the hoodie and pulled him back. The appellant turned. He saw the deceased reach for a black handle in the waistband of his pants. The appellant believed the black handle was a gun. He pulled his own firearm and shot the deceased in the chest. The appellant fled. He followed Henry to his car. Henry drove them both away.
[25] When police responded, they found a large, black-handled kitchen knife tucked into the deceased’s waistband.
The Arrest
[26] Police arrested the appellant two days later. They seized his cellphone. Several hours after he was arrested, the appellant was interviewed by the lead investigator. The admissibility of the video recorded interview was challenged at trial. The challenge is repeated here.
The Grounds of Appeal
[27] The appellant advances two grounds of appeal. He says that the trial judge erred:
i. in conducting discussions about the contents of the charge to the jury by email in the absence of the appellant, rather than in court, on the record, in the presence of the appellant; and
ii. in failing to find a violation of the implementational component of s. 10(b) of the Charter and to exclude the record of the interview as evidence under s. 24(2) of the Charter.
Ground #1: The Violation of Section 650(1) of the Criminal Code
[28] A first ground of appeal alleges a violation of the appellant’s statutory right and constitutional entitlement to be present throughout the whole of his trial. The asserted breach arises in connection with pre-charge conferences authorized by s. 650.1 of the Criminal Code, R.S.C., 1985, c. C-46, to discuss “the matters that should be explained to the jury… and with respect to the choice of instructions to the jury”.
[29] Some further detail is necessary to colour in the background of the alleged breaches.
The Essential Background
[30] The trial judge began drafting her charge and seeking the assistance of counsel about its contents before the defence case was completed. She indicated that she would provide drafts of her proposed instructions and obtain counsel’s assistance as the evidence continued in the presence of the jury. Prior to March break, the trial judge told counsel that she would email them her first draft for review. She indicated that counsel need not comment on the draft, but could do so if they wished.
[31] During March break, the trial judge sent two draft charges to counsel. She made it clear that comment was not necessary, but permissible. Defence counsel indicated that he preferred to make the few comments he had on the record.
[32] When proceedings resumed with the jury, the defence case continued to its conclusion. The parties prepared their closing addresses. They exchanged emails with the trial judge. Scheduling. Further draft charges. Their respective positions. Comments on each other’s positions.
[33] In large measure, the pre-charge conferences were conducted in open court, on the record, and in the presence of the appellant. During one in-court pre-charge conference, the trial judge asked whether the statutory partial defence of provocation should be left to the jury for their consideration. The parties agreed that provocation was available on the evidence and should be left to the jury.
[34] The parties continued to correspond by email about the charge to the jury. In the early evening of the day before the parties were to give their closing addresses, the trial judge expressed her concern about the availability of, hence the need to instruct the jury on, provocation. In an email she asked the parties about their positions on the issue: “I would appreciate hearing from you by email asap”. The judge invited defence counsel to respond first. Ten minutes later, defence counsel answered with a reversal of the position he had taken in the courtroom two days earlier. He wrote that there was no evidence of an act or insult of sufficient proximity to constitute provocation.
[35] One night later, the trial judge invited immediate email responses on another subject: the appellant’s pre-trial custody. Later that evening, she circulated another draft charge with the now familiar request of an “as soon as possible” response. Counsel on both sides responded with submissions on manslaughter and self-defence.
[36] Jury deliberations began. As they continued, the trial judge emailed the parties. She sought submissions about one aspect of the charge on self-defence. The trial judge asked whether she should further instruct the jury that, if on the evidence there could be more than one purpose to the appellant’s shooting of the deceased, they must find self-defence to be the sole purpose. The parties made significant submissions by email on whether further instructions were required. Defence counsel declined a re-charge on the basis that there was no evidence that the appellant shot the deceased for any other purpose than self-defence.
The Arguments on Appeal
[37] The appellant contends that the email exchanges with the trial judge about what should be included in or omitted from the charge to the jury were procedural errors that caused a miscarriage of justice in this case.
[38] The appellant has a statutory right and a constitutional entitlement to be present throughout the whole of his trial. The “whole of his trial” includes any incident of the trial process that affects the vital interests of an accused. And it is well established that discussions about the legal principles in accordance with which an accused’s guilt will be determined affect an accused’s vital interests. It follows, according to the appellant, that any discussions about the availability of a defence, or what should be said about an available defence, must take place in open court, in his presence, and on the record. Failure to do so is a procedural error.
[39] Once a procedural error has been identified, the inquiry focuses on the impact of that error. More specifically, the question becomes whether that error has caused a miscarriage of justice. A miscarriage of justice occurs when the procedural error creates an appearance of unfairness in the trial proceedings. Actual prejudice is not required.
[40] Some procedural errors, the appellant acknowledges, may not compromise the actual or apparent fairness of a trial. In those cases, the respondent may be able to persuade the reviewing court that the appellant suffered no prejudice from the error. But that is simply not this case.
[41] In addition to the appearance of unfairness inherent in all in absentia discussions, actual prejudice occurred here. Until the in absentia exchange, the parties agreed that the statutory partial defence of provocation would be left to the jury. If successful, this would result in a conviction of manslaughter. But a pre-charge conference held off the record, outside the courtroom, and in the appellant’s absence took away provocation, as well as the possibility of a verdict based on provocation.
[42] The appellant says that in their email discussions the trial judge and the parties appear to have concluded that to reach provocation the jury would necessarily have rejected self-defence. Since the evidence relied upon was the same for both self-defence and provocation, this left no air of reality for the statutory partial defence of provocation.
[43] To reject the availability of provocation on this basis, the appellant submits, was simply wrong. The partial statutory defence of provocation and the justification of self-defence are not inconsistent or mutually exclusive. A person can fear imminent bodily harm and seek to prevent it (self-defence), but at the same time lose self-control in the face of the impending risk of bodily harm (provocation).
[44] In this case, the jury was entitled to be selective about the appellant’s testimony. They could have disbelieved his claim of a confrontation in the hallway, but accepted that the deceased threatened him in the elevator. This threat would satisfy the objective element of provocation. Or the jury could have rejected the appellant’s evidence, but accepted the testimony of the co-accused to the same effect. This finding would also have satisfied the objective test for provocation.
[45] The appellant argues further that the jury could have rejected self-defence on the basis that shooting the deceased was disproportionate to the deceased’s conduct of reaching for the waistband of his pants and grabbing the appellant’s hoodie. Were this the case, the statutory partial defence of provocation was available and could have served to reduce what otherwise would have been murder to manslaughter.
[46] The appellant accepts that the bulk of the pre-charge conference was conducted as it should have been: in court, on the record, in the presence of the appellant. However, critical substantive and vital issues were discussed and resolved by email. The statutory partial defence of provocation was taken off the table the evening before closing addresses and the charge. The appellant was not present. The issue was not revisited in open court, on the record, in the appellant’s presence. This procedural error cannot be salvaged by the proviso in s. 686(1)(b)(iv).
[47] The respondent begins with a submission that any email communications occurred within permissible limits. For the most part, the email exchanges involved providing counsel with successive drafts of the proposed instructions, pointing out changes made and explaining that each version would serve as the working copy for their in-court discussions. The preliminary nature of these discussions did not offend s. 650(1) of the Criminal Code and, in any event, did not cause or contribute to a miscarriage of justice.
[48] The email discussion about the potential unavailability of provocation was preceded by a question in open court from the trial judge:
Is there provocation? It’s never been raised.
The response of the Crown, “yes”, should not be taken as an acknowledgment that there was an air of reality to the defence or that it should be put to the jury. The response of defence counsel was that manslaughter was available on the basis that the appellant did not intend to kill the deceased. Defence counsel submitted that if manslaughter based on lack of intent were left then “provocation needs to be included. It doesn’t need to be detailed but just, … what was said in the elevator or the utterances that were made before, which would reduce his state of mind from intentionality to manslaughter”.
[49] As the record reveals, the respondent accepts that the trial judge, while putting together “Draft 6” of her proposed jury instructions the day before closing addresses were to be given, invited counsel to respond by email to her inquiry about the availability of provocation as a defence. She sought an immediate response because the answers of counsel affected the completion of the charge and the closing addresses scheduled for the next day. Defence counsel responded. He explained why provocation should not be included in the charge to the jury.
[50] After defence counsel responded to the trial judge’s question about provocation, the trial judge provided a further draft of her proposed charge. The draft omitted any reference to provocation. The judge invited submissions the following day before closing addresses. Defence counsel made no submissions.
[51] In any event, the respondent continues, there was no air of reality to the statutory partial defence of provocation in this case. What was missing was evidence of a wrongful act or insult and of a sudden response that could ground the defence. Neither the deceased’s comment to the appellant and Henry that they would both be “dead” when the elevator doors opened, nor the deceased’s grab of the appellant’s hoodie could qualify. The shooting did not happen suddenly. Nor was the shooting in response to the threat. As the appellant made clear, he shot because he feared for his life: “It was a life or death situation”.
[52] In the alternative, the respondent says, any procedural error that may have occurred because of the appellant’s exclusion is saved harmless by the proviso of s. 686(1)(b)(iv).
[53] The respondent submits that the exclusion was brief. The request for comment did not prompt an objection from defence counsel. The availability of provocation had already been canvassed in open court. A further draft charge was provided. Counsel were invited to discuss it prior to their closing addresses the following day. Defence counsel made no objection either to the removal of provocation as a defence or to the emailed discussion about it the previous evening. Not before and not after the charge was delivered. Indeed, defence counsel made it clear that the sole catalyst for the shooting was in defence of the appellant’s own life. The discussion by email did not cause any actual or apparent unfairness to the trial process.
The Governing Principles
[54] Little controversy exists about the principles that inform our decision on this ground of appeal. However, the parties are at odds about the result that should follow from the application of those principles to the circumstances of this case.
[55] The appellant was statutorily required to be present for the “whole of his trial” under s. 650(1) of the Criminal Code, absent any applicable exception under s. 650(2). No statutory exception permitting or requiring the appellant’s exclusion applies: R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at para. 114, leave to appeal refused, [2010] S.C.C.A. No. 459.
[56] Whether an aspect or procedural incident of or associated with a criminal trial is part of the trial depends upon whether: what occurred involved or affected the vital interests of the accused; or whether any decision made had a bearing on the substantive conduct of the trial. See Simon, at para. 116; R. v. Hertrich, Stewart and Skinner (1982), 67 C.C.C. (2d) 510 (Ont. C.A.), at p. 539, leave to appeal refused, [1982] S.C.C.A. No. 124; R. v. Hassanzada, 2016 ONCA 284, 130 O.R. (3d) 81, at para. 128.
[57] A pre-charge conference, authorized but not required under s. 650.1, is held to discuss “the matters that should be explained to the jury” and “the choice of instructions to the jury”. The subject-matter discussed at the pre-charge conference involves and affects the vital interests of the accused. It follows that the pre-charge conference is part of the accused’s trial: Hassanzada, at para. 129; R. v. E. (F.E.), 2011 ONCA 783, 108 O.R. (3d) 337, at para. 46. And it also follows, subject to the exceptions in s. 650(2), that the accused is not only entitled, but required to be present during the conference: Hassanzada, at para. 129; E. (F.E.), at paras. 46-47.
[58] Since pre-charge conferences are part of an accused person’s trial at which they are required by s. 650(1) of the Criminal Code to be present, those conferences are required to be held:
i. in the courtroom; ii. on the record; iii. in the presence of the accused.
See Simon, at para. 137; Hassanzada, at para. 131.
[59] This is not the first case in which an appellant has challenged the use of email to conduct substantive discussions about the contents of the charge to the jury. In prior decisions we have indicated that the use of email to provide counsel with copies of proposed jury instructions does not offend s. 650(1) of the Criminal Code. In those same decisions, we have made it equally clear that discussions about the content of those draft instructions are not to take place by email. These discussions, whether they solicit or offer submissions about charge content, affect and involve the vital interests of the accused and must take place in the actual presence of the accused. Section 650(1) requires it: Simon, at para. 137; Hassanzada, at paras. 130-131.
[60] Few words are required to explain the combined effect of ss. 650(1) and 650.1 of the Criminal Code. In court. On the record. In the presence of the accused. No more is required. Nothing less will do. Section 650(2) contains no email exception to the “shall be present in court during the whole of his or her trial” requirement of s. 650(1): Simon, at para. 137; Hassanzada, at para. 131.
[61] Where substantive pre-charge conference discussions take place outside the courtroom and in the absence of the accused, whether they are conducted in judicial chambers or elsewhere or by email, a procedural error has occurred. There is a violation of s. 650(1) of the Criminal Code. The result will be a new trial unless what occurred can be saved by the proviso in s. 686(1)(b)(iv) of the Criminal Code: E. (F.E.), at para. 29; Simon, at paras. 119, 122.
[62] The discretion to dismiss an appeal under s. 686(1)(b)(iv) is engaged when three conditions are met:
i. a procedural irregularity occurred at trial; ii. the trial court had jurisdiction over the class of offence of which the appellant was convicted; and iii. the court of appeal is of the opinion that the appellant suffered no prejudice because of the procedural irregularity.
See, E. (F.E.), at para. 30. Provided the conditions precedent to the operation of the section have been met, the section may save harmless a breach of s. 650(1) of the Criminal Code: Simon, at para. 122; E. (F.E.), at para. 31. See also, R. v. Cloutier (1988), 43 C.C.C. (3d) 35 (Ont. C.A.), at p. 49, leave to appeal refused, [1989] S.C.C.A. No. 194.
[63] The phrase “jurisdiction over the class of offence” in s. 686(1)(b)(iv) refers to the classes of offences described in ss. 468, 469, and 785 of the Criminal Code. The offence with which we are concerned here – murder – is an offence listed in s. 469 of the Criminal Code. It is an offence within the exclusive trial jurisdiction of the superior court of criminal jurisdiction: R. v. Esseghaier, 2021 SCC 9, at paras. 42, 47, 48.
[64] If a reviewing court is satisfied that what occurred was a procedural error and that the trial court had jurisdiction over the offence of which the appellant was convicted, the proviso inquiry turns its focus to the issue of whether the appellant suffered “no prejudice”: Esseghaier, at para. 50. The precise reach of the proviso in s. 686(1)(b)(iv) is without clear definition: Esseghaier, at paras. 51-53. However, it has been held that the term “prejudice” encompasses at least:
i. prejudice to the ability of an accused to properly respond to the case for the Crown and to receive a fair trial; and ii. prejudice to the appearance of the due administration of justice.
See, E. (F.E.), at para. 33. Whether s. 686(1)(b)(iv) will hold harmless the procedural irregularity requires a close examination of all the circumstances including but not only the factors listed in Simon, at para. 123; E. (F.E.), at para. 36.
[65] The standard we are to apply to determine the result of the prejudice inquiry under s. 686(1)(b)(iv) has not yet been authoritatively settled: Esseghaier, at para. 52. However, an appellant is not required positively to demonstrate prejudice to foreclose the application of the proviso. If the Crown satisfies the appellate court that the procedural error caused the appellant no prejudice, the proviso is available to dismiss the appeal.
The Principles Applied
[66] After a careful consideration of all the circumstances, I am not persuaded that this ground of appeal can prevail. This despite the trial judge’s failure to follow binding precedent in favour of a course that put at risk the integrity of the trial process.
[67] First, the procedural error.
[68] The pre-charge conference affects the vital interests of an accused. As a result of what is said there, decisions are made about the content of the final instructions to the jury. What will be said and how it will be said. And what will not be included. Such as defences. Like provocation. Justifications, like self-defence. And excuses.
[69] Procedural incidents of the trial process, such as pre-charge conferences, are part of an accused’s trial. It follows from the statutory requirement of s. 650(1) of the Criminal Code, as well as every accused person’s constitutional entitlement to be present at their trial, that the appellant was entitled to be present for the pre-charge conference. The entire pre-charge conference when the availability of the statutory partial defence of provocation was discussed. No statutory exception permitted his exclusion when the subject of the availability of provocation was discussed and decided. Exclusion of the appellant from this discussion contravened s. 650(1) of the Criminal Code.
[70] Likewise, the discussion about further instructions on self-defence while the jury was deliberating. Self-defence was the principal defence advanced at trial. Any discussions about its availability and about what would be said or not said about it affected the appellant’s vital interests. They were part of his trial. He was statutorily required and constitutionally entitled to be there. His absence, the product of a judicial decision to discuss the issue by email, breached s. 650(1). No exception applied.
[71] These were unforced, needless errors, heedless of the statutory requirement and constitutional entitlement of an accused’s presence “during the whole of his or her trial”.
[72] The appellant acknowledges that for the most part, the pre-charge conferences were held in open court, on the record, and in his presence. This included the initial discussion about the statutory partial defence of provocation.
[73] The trial judge raised the issue of provocation. She pointed out that no one had raised it thus far in their discussions about the charge. Defence counsel pointed out that since the included offence of manslaughter was being left to the jury, provocation should be included as well because it (provocation) reduced the state of mind of the shooter. This is not so. Manslaughter committed under provocation is voluntary manslaughter, sometimes called mitigated murder. As the introductory language of s. 232(1) of the Criminal Code provides – “Culpable homicide that otherwise would be murder” – the statutory partial defence of provocation has nothing to do with the fault element of murder. And whether voluntary manslaughter should be left to a jury depends on whether there is an air of reality to the defence which is unrelated to whether involuntary manslaughter – an unlawful killing unaccompanied by the fault element required for murder – should be included in the charge.
[74] When the trial judge first raised the issue of provocation, pointing out that no one had said anything about it earlier, the trial Crown simply responded “yes”. In the absence of any further affirmation that provocation would be left to the jury, I am not prepared to conclude that her single word response meant that she thought there was a basis for submitting provocation to the jury.
[75] The exclusion of the appellant from the discussion on provocation came about early in the evening before counsel were to address the jury.
[76] The trial judge sent an email to counsel. She asked whether there was an air of reality to provocation. She appeared to be of the view that provocation should not be included in the charge since provocation was based on the same evidence as self-defence and self-defence was being left to the jury. She asked counsel to respond, the defence first, “asap”.
[77] The defence of provocation and the justification of self-defence are not mutually exclusive. The same evidence may support, said otherwise, provide an air of reality for each. Provided the evidence satisfied the air of reality standard for each, then each should be left to the jury.
[78] In a similar way, most discussions about self-defence were held in court, in the appellant’s presence and on the record. But once again, while the jury was deliberating, the trial judge began and continued an email exchange with counsel about further instructions on self-defence. She directed counsel to respond “asap” by email. In the end, no further instructions were provided.
[79] As we have already seen, our authority to dismiss an appeal despite a procedural irregularity at trial requires that the trial court has jurisdiction over the class of offence with which the appellant was charged and that we be of the opinion that the appellant suffered no prejudice as a result of the error. Since no issue arises about the jurisdiction of the superior court of criminal jurisdiction over the offence with which the appellant was charged – murder – our analysis must focus on the nature and extent of any prejudice caused by the irregularity.
[80] Several factors taken together persuade me that the appellant was not prejudiced by the procedural irregularities that occurred here.
[81] First, the nature and extent of the exclusions.
[82] Each exclusion was initiated by the trial judge to discuss issues about the contents of the charge to the jury. The first was prior to the delivery of the charge. It was followed by a further draft of the charge. Counsel had an in-court opportunity before their closing addresses to make submissions about the exclusion of provocation. Defence counsel did not do so. This is not a case, as in E. (F.E.), where the entirety of the pre-charge conference was conducted in chambers. In this case, there was also a record of what occurred. The exclusions do not appear to have been lengthy.
[83] The second exclusion occurred while the jury was deliberating, again initiated by the trial judge. Counsel responded by email as the trial judge requested with submissions about further instructions on self-defence. No further instructions were given to the jury. This exchange should not have taken place over email. The jury is deliberating. They are in the courthouse. Likewise, the accused, and the trial judge. Counsel are reachable. Notify counsel. Re-assemble the court in the absence of the jury. Discuss the issue. Decide what to do.
[84] The email communications and requests by the trial judge would seem to have been a deliberate choice of a method of communication other than that required by s. 650(1) of the Criminal Code. Perhaps the trial judge was concerned about ensuring adherence to a schedule provided to the jury about the concluding aspects of the trial. Certainty is desirable. The progress of a trial in its waning moments should not be unduly delayed. But the solution is not to ignore mandatory statutory requirements such as s. 650(1) of the Criminal Code. There is no email exception.
[85] Second, the position of counsel at trial.
[86] Prior to the instances to which objection is taken, defence counsel did reject a request by the trial judge to respond to an issue raised by the trial judge by email. Defence counsel then stated his preference to respond in the courtroom. However, in neither instance to which objection is taken did he, despite his years of experience, object to the method of response requested, express any concerns about it in open court, or make any further submissions about either provocation or self-defence.
[87] Third, the impact on trial fairness.
[88] Neither the substance nor the timing of the email discussions compromised the appellant’s right to make full answer and defence. Neither discussion related to a tactical decision the defence was required to make. The initial discussion occurred after prior in-court conferences about the substance of the charge to the jury as the defence case was being led. The appellant had already decided to testify. The discussion about the availability of provocation took place after the evidence had been completed. All that remained were the addresses of counsel and the charge. Neither had anything to do with the substantive contents of the appellant’s primary defence – self-defence.
[89] Further, the subject matter of the discussions. In each case, the discussion involved jury instructions. Whether the statutory partial defence of provocation should be left for consideration by the jury. Whether the instructions on self-defence required further elaboration. Each related to a subject about which it was unrealistic to conclude the appellant could have assisted counsel had he been present.
[90] Moreover, there was no air of reality to the partial statutory defence of provocation. The appellant’s evidence failed to provide a basis upon which the jury could find or have a reasonable doubt that he lost self-control and acted on the sudden. The appellant testified he acted out of fear upon seeing a black object in the back of the deceased’s pants. He never suggested he acted out of anger or rage, let alone to the point that he lost self-control – both precursors to provocation. While the jury could have rejected the parts of the appellant’s testimony inconsistent with provocation, the remaining evidence was insufficient to ground a “coherent narrative” of provocation. As such, the omission of provocation in the jury instruction did not prejudice the appellant. Neither does the appellant advance such an error as a separate ground of appeal.
[91] Meanwhile, under the defence of self-defence, there was no evidence that there was more than one purpose for which the appellant shot the deceased. The absence of any recharge on this point did not prejudice the appellant.
[92] For these reasons, I would reject this ground of appeal.
[93] This is not the first time a trial judge has conducted part of the pre-charge conference in the absence of the accused. Nor is it the first time that an accused has been excluded from some other aspect of the trial process where their vital interests are involved. When they occur and are raised on appeal, the integrity of the jury’s verdict is in jeopardy. And unnecessarily so. These errors are unforced.
[94] As we have said in the past and reiterate today, no breach of s. 650(1) of the Criminal Code occurs by email transmission to counsel of drafts of proposed jury instructions. But as we have also said in the past and repeat today with emphasis, initiating and receiving by email submissions about the subject-matter contained in or omitted from final instructions does offend s. 650(1) of the Criminal Code. The reason is simple. Pre-charge conferences under s. 650.1 of the Criminal Code, indeed any discussions about what should be explained to the jury and the choice of instructions to be given, affect an accused’s vital interests, thus are part of the accused’s trial. Section 650(1) is engaged. The accused must be present unless an applicable exception applies. Use of email is not an exception. The message is in the medium. Open court. On the record. In the presence of the accused.
[95] The circumstances of this case illustrate the comparative facility with which the issues raised by the trial judge could have been resolved without offending s. 650(1) of the Criminal Code.
[96] The trial judge became concerned about the inclusion of an instruction on provocation early in the evening before counsel were to address the jury. Schedule discussion of the issue prior to the jury’s return the following day. If the jury cannot be advised in advance of their return to attend later than scheduled, arrange for refreshments for them at the time they are scheduled to return. In the meantime, sort out the provocation issue and the timing of the balance of the day’s events with counsel (and the jury if necessary) and proceed accordingly.
[97] The self-defence issue arose while the jury was deliberating. It was a simple matter to notify counsel that an issue had arisen that required their attendance in the courtroom. With all participants in the trial present in the courtroom, except the jury, the self-defence issue could be raised, discussed, and decided. If necessary, the jury could be recalled for further instructions.
Ground #2: The Implementational Infringement of Section 10(b)
[98] The second ground of appeal challenges the trial judge’s ruling admitting as evidence a video recorded interview of the appellant by the lead investigator, D/Sgt. Idsinga.
[99] At trial, the appellant challenged the admissibility of the interview on both voluntariness and s. 10(b) grounds. At the conclusion of a blended voir dire, counsel abandoned the voluntariness challenge, but pursued the claim based on an alleged infringement of the implementational component of s. 10(b).
[100] The trial judge concluded that there had been no breach of the implementational component of s. 10(b). This permitted the Crown to cross-examine the appellant on the interview as a prior inconsistent statement should the appellant testify in a contrary way. The trial judge then admitted the statement as evidence of after-the-fact conduct. This permitted the Crown to adduce it as part of her case in-chief.
The Essential Background
[101] Some further background about what happened between the appellant’s arrest and his interview by D/Sgt. Idsinga will provide the background necessary to evaluate the claim of error advanced here.
The Arrest
[102] The appellant was arrested at 7:30 p.m. on September 10, 2012, two days after he shot the deceased to death. Police seized his cellphone incident to arrest. The arresting officers, who were not involved in the murder investigation, advised the appellant of the reason for his arrest and explained his right to counsel. The appellant was told that he had the right to call a lawyer and also the right to free legal advice from duty counsel associated with Legal Aid. When asked whether he wished to call a lawyer then, the appellant said “I’m telling you. I don’t understand. What’s going on?”. He did not respond directly to the question whether he wished to call a lawyer at that time. The appellant appeared shocked when the officer read the police caution. The arresting officer was involved with the appellant for about two to three minutes. At the conclusion of the process of arrest, the officer said he didn’t know what the appellant wanted to do about speaking to a lawyer or duty counsel. The officer’s uncertainty arose from the appellant’s failure to answer the officer’s question about calling a lawyer or duty counsel.
Transportation to 55 Division
[103] The arresting officer turned the appellant over to other officers who were in the area on another call. These officers were advised of the reasons for the appellant’s arrest and assigned the task of transporting the appellant to 55 Division, the precinct in which the shooting occurred. One of the officers, P.C. Hewitt, re-advised the appellant of his right to counsel. The appellant kept asking what this was all about. P.C. Hewitt could offer no assistance on this issue. He was not involved in the investigation and had received no information about it beyond being advised that the allegation was one of murder.
[104] The transporting officers seated the appellant, who was handcuffed, in the back of a police cruiser. P.C. Hewitt, in explaining to the appellant his right to counsel, asked “Do you wish to call a lawyer now?”. The appellant responded, “I might as well, I don’t even know what’s going on, but obviously a lawyer is gonna have to deal with this matter”. The appellant explained that he did not have a particular lawyer that he wished to call because he did not know a lawyer. The officer asked about duty counsel. The appellant agreed that he would have to speak with duty counsel.
[105] P.C. Hewitt advised the appellant that he (the appellant) would have a chance to speak to a lawyer after they arrived at the police station. The officer was aware of his obligation to hold off asking any questions of the appellant because of the appellant’s wish to speak with a lawyer. P.C. Hewitt was unaware of the details of the investigation so he could not explain them to the appellant or ask him any questions about it.
The Booking Procedure
[106] More than an hour later, the transporting officers and the appellant arrived at 55 Division. The booker was unaware of the appellant’s request to speak to a lawyer. He told the appellant that he could use the telephone. If he wished to do so, the appellant was to speak with one of the transporting officers because it was their responsibility, not that of the booker, to facilitate exercise of the right to counsel. The appellant did not ask to use the telephone in the booking area.
The Interview Room
[107] After the booking process had been completed, P.C. Hewitt escorted the appellant to the interview room. The officer advised the lead investigator, D/Sgt. Idsinga, of what had occurred thus far. This included the appellant’s response when advised of his right to counsel. D/Sgt. Idsinga, aware of the appellant’s wish to speak with counsel but that he had not yet done so, told P.C. Hewitt that he (Idsinga) would take it from there.
The Interview with Detective Sergeant Idsinga
[108] Shortly before 10:00 p.m. on the day of his arrest, the appellant was in an interview room at 55 Division. He had been left there by transporting officers to await the arrival of investigators from Homicide, D/Sgt. Idsinga and Det. Ogg.
[109] When D/Sgt. Idsinga entered the interview room, he introduced himself and explained that he wanted to complete some paperwork concerning the arrest and to get the appellant in contact with a lawyer if the appellant wished to talk to a lawyer.
[110] D/Sgt. Idsinga then continued:
Idsinga: Okay? It’s my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you are charged with an offence, which you’re going to be, you may apply to the Ontario Legal Aid Plan for assistance. 1-800-265-0451 is a toll free number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now. Do you understand that?
Burnett: Yes sir.
Idsinga: Do you wish to call a lawyer right now?
Burnett: I guess so. Like I don’t know what’s going on.
Idsinga: Okay. Well – I can explain to you what’s going [on] but if you want to talk to a lawyer first you can talk to a lawyer first.
Burnett: I don’t like I said you might as well explain to me but I really don’t know what’s going on.
[111] Over the next few minutes, D/Sgt. Idsinga read the primary and secondary police cautions to the appellant and explained that the appellant need not answer any questions the officer might ask him. The appellant repeated his lack of understanding about what was going on. He was prepared to listen to what the officer had to say. D/Sgt. Idsinga continued the discussion:
Idsinga: The decision is y’-yours Andrew. I can take you to the other room; we have a video camera in there. I’ll sit down and show you some things – and explain to you what’s going on.
Burnett: Furth’-um ---
Idsinga: Or we can call a lawyer first. Or we can call a lawyer afterwards at any point in time if you wanna (sic) call a lawyer we can call a lawyer.
Burnett: Ah can I see what you’re talking about and then like, I just wanna (sic) understand what’s going on so
Idsinga: Okay.
Burnett: --- if you could help me understand then I could help you with whatever you need. I just don’t understand what go on – what’s going on.
Idsinga: So, do you wanna (sic) see what I’m talking about ---
Burnett: Please and thank you.
Idsinga: --- or – we call a lawyer?
Burnett: Please and thank you.
[112] The officers and the appellant left the interview room and entered a video suite. There, D/Sgt. Idsinga repeated what he had earlier said about the right to counsel and asked the appellant whether he wanted to call a lawyer at that time. The appellant said that he didn’t have a lawyer “on file” and wondered whether it would be possible for a lawyer to come to the police station. D/Sgt. Idsinga explained that lawyers did not come to the police station. The officer offered to put the appellant in contact with a lawyer at that very moment. The appellant said that he wanted to hear first “what’s going on” before talking to a lawyer. The colloquy concluded:
Idsinga: You have to understand that you don’t have to say anything to me. You don’t have to answer any of my questions. And you can – call a lawyer – a free lawyer for l’ - free legal advice any time you want.
Burnett: Okay.
Idsinga: Including right now.
Burnett: Okay.
Idsinga: Okay? You understand all that?
Burnett: Yes sir.
Idsinga: Okay. Do you wanna (sic) call a lawyer right now?
Burnett: No, not as right now sir.
The Ruling of the Trial Judge
[113] The trial judge gave written reasons for her conclusion that the video recorded interview had not been obtained in breach of the implementational component of s. 10(b) of the Charter. The appellant had been advised on five separate occasions of his right to counsel. He had been read the primary and secondary caution and told that he was under no obligation to speak to the police. He was aware of the nature and extent of his jeopardy and of his right to speak to a lawyer, including duty counsel. He spoke freely to investigators. He waived his right to retain and instruct counsel without delay because he wanted to find out the case against him.
[114] The trial judge was satisfied that the implementational requirement in s. 10(b) did not arise at all until the appellant arrived at 55 Division. It was not appropriate for the transporting officers to turn off the in-car recording devices to permit the appellant to call counsel from the backseat of a police cruiser. Nor was it appropriate for either transporting officer to give the appellant his (the officer’s) own cellphone to make the call.
[115] During the booking procedure, the appellant was told that he could make reasonable use of the telephone in a room adjacent to the booking hall. To do so, the appellant only needed to ask the transporting officers. He made no such request.
[116] At the outset of his discussions with D/Sgt. Idsinga, the appellant said he would call a lawyer because he did not know what was going on. But he later changed his mind because he wanted to find out what the officer would tell him about the case first. D/Sgt. Idsinga made it clear to the appellant that he could call a lawyer anytime he wished. But the appellant never did so and never asked that he be permitted to do so.
[117] The trial judge was satisfied that the appellant waived his right to counsel before he spoke to police. From the outset, the appellant repeatedly sought information from the police. D/Sgt. Idsinga made it clear that he would provide the appellant with information. But at the same time, he asked the appellant whether he wished to speak with a lawyer before hearing what the officer had to say. The appellant clearly and unequivocally declined the opportunity. The appellant’s choice was free, voluntary, and fully informed.
The Arguments on Appeal
[118] The appellant contends that at trial the parties accepted that the appellant expressed his desire to speak to counsel shortly after his arrest at 7:30 p.m. At the station, he was paraded and booked in an area where there was private access to a telephone. Yet no one made any attempt to put him in contact with a lawyer in compliance with his earlier express request. Instead, he was shunted off to an interview room to await the arrival of investigators from Homicide.
[119] When D/Sgt. Idsinga entered the interview room, he knew that the appellant had asked to speak to a lawyer and that he had not been provided with that opportunity. Yet, D/Sgt. Idsinga did nothing to implement the appellant’s request. Instead, the officer simply repeated the Charter advice and cautions already administered and asked questions the appellant had already answered.
[120] When an accused or detainee invokes their right to speak to a lawyer, the appellant says, the police are required to take steps to assist them in doing so without delay. It is only where compelling circumstances exist, such as concerns about officer or public safety, that a delay can be justified. This exception cannot be invoked, as a matter of routine, rather can only be established on a case-specific consideration of the circumstances of the case. None of those circumstances existed here.
[121] In this case, the appellant continues, the transporting officers could have facilitated his request by calling Legal Aid, turning off the recording devices in their cruiser, and allowing him to speak with duty counsel. And at the police station, 90 minutes later, facilities were available to give effect to the appellant’s request, but nobody facilitated the call. Instead, he was simply taken to an interview room to await investigators. No telephone was ever provided.
[122] When D/Sgt. Idsinga arrived at the interview room, he was well aware of the appellant’s request to speak to a lawyer and that the request had not been implemented. Yet, the senior investigator did nothing to facilitate the unfulfilled request. Instead, D/Sgt. Idsinga simply engaged in a back-and-forth with the appellant about disclosure of the police investigation, on the one hand, and the right to speak to a lawyer, on the other. These serial breaches warranted exclusion of the interview as evidence.
[123] The respondent resists the appellant’s claim of constitutional infringement. No breach of the implementational component of s. 10(b) occurred here. The police were not required to facilitate a telephone call the appellant was not interested in making. His purpose was in finding out the case against him, not in speaking to duty counsel or any other lawyer.
[124] The appellant was repeatedly advised of the reasons for his arrest and his right to counsel, cautioned that he need not speak to the police, and told about the evidentiary consequences of doing so. This occurred on arrest, when transported to the station, and when he was booked at 55 Division. He indicated to the transporting officers that he “might as well” speak to a lawyer and “I guess I’m gonna have to speak to duty counsel” since he didn’t know any lawyers. He suggested that he could do so when they got to the police station.
[125] At 55 Division, the Acting Sergeant reiterated the appellant’s s. 10(b) rights and explained that he was entitled to reasonable use of the telephone. All the appellant had to do, the officer said, was to tell one of the transporting officers or the investigating officer that he (the appellant) wanted to use the phone. The appellant’s only request was to speak with his mother. An officer facilitated that call. At no time did the appellant ask anyone at the booking desk or one of the transporting officers for use of the phone to call a lawyer or duty counsel.
[126] When D/Sgt. Idsinga appeared in the interview room and later in the video suite, he was aware of the appellant’s prior request to speak to a lawyer or duty counsel. He reiterated the appellant’s rights under s. 10(b) and inquired about his previous request to call a lawyer. The appellant persisted in his claim that he was unaware about what was going on. Despite D/Sgt. Idsinga’s offer to call a lawyer or duty counsel, the appellant demurred. He wanted to find out the details of the police investigation first before he spoke to a lawyer.
[127] The respondent accepts that when a detainee invokes their right to obtain legal advice from a lawyer or duty counsel under s. 10(b), the police are required to facilitate that request at the first reasonable opportunity and to hold off taking any further investigative steps to elicit evidence from the detainee until the request has been fulfilled.
[128] In this case, the respondent points out, it was never suggested at trial that the appellant should have been permitted access to an officer’s own cellphone to call duty counsel from the police cruiser with the video and audio recording equipment in the cruiser disengaged. Likewise, the appellant’s own cellphone could not be used because he had removed the SIM card from it. At trial, counsel conceded that the first reasonable opportunity was at 55 Division.
The Governing Principles
[129] This ground of appeal involves one aspect of the right to counsel guaranteed by s. 10(b) of the Charter. No issue arises about the adequacy of the information provided to the appellant about the reasons for his arrest as required by s. 10(a) of the Charter. Nor is there any complaint about the adequacy of the advice offered to the appellant about his right to retain and instruct counsel without delay as mandated by s. 10(b) of the Charter. The failure asserted here has to do with the implementational component in s. 10(b), the duty settled on police to ensure that arrested persons are given a reasonable opportunity to exercise their right to retain and instruct counsel without delay.
[130] The purpose of the rights under s. 10(b) is to allow a detainee or an arrested person not only to be informed of their rights and obligations under the law, but also, of equal and perhaps greater importance, to obtain advice about how to exercise those rights: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 21, citing R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-1243. Access to legal advice ensures that an individual who is at once under control of the state and in legal jeopardy is able to make a choice whether to speak to police investigators that is both free and informed: Taylor, at para. 21, citing R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 25. And the right to retain and instruct counsel without delay is also meant to help detainees regain their liberty, as well as guard against the risk of involuntary or inadvertent self-crimination: Taylor, at para. 21, citing R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 40.
[131] The arrest or detention of the person imposes three corresponding duties on the police:
i. An informational duty to inform the detainee of their right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel; ii. An implementational duty if the detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise their right, absent urgent and dangerous circumstances; and iii. A duty to hold off from eliciting evidence from the detainee until they have had that reasonable opportunity, absent urgent or dangerous circumstances.
See, Taylor, at para. 23, citing R. v. Bartle, [1994] 3 S.C.R. 173, at p. 192; Manninen, at pp. 1241-1242.
[132] The implementational duty – the duty to facilitate access – arises immediately upon the detainee’s request to speak to counsel. Arresting officers are constitutionally required to facilitate the access requested at the first reasonably available opportunity. Where delay has occurred, the burden is on the Crown to demonstrate in the specific circumstances of the case that the delay was reasonable: Taylor, at para. 24.
[133] To facilitate access to counsel at the first reasonably available opportunity includes allowing the detainee on request to use a telephone for that purpose if one is reasonably available: Taylor, at para. 25, citing Manninen, at p. 1242.
[134] This implementational duty does not create a corresponding “right” of the detainee to use a specific phone. Nor does it impose a legal duty on police to provide their own cellphone to a detainee. What this aspect of s. 10(b) does is to guarantee that the detainee will have access to a phone to exercise their right to counsel at the first reasonable opportunity: Taylor at paras. 27-28.
[135] As for the duty to hold off, until the requested access to counsel has been provided, police are required to refrain from taking further investigative steps to elicit evidence from the detainee: Taylor, at para. 26; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 33. The implementational duty and the obligation to hold off are contingent on the detainee’s reasonable diligence in attempting to contact counsel. What constitutes reasonable diligence depends on the particular circumstances of each case: Willier, at paras. 30, 33; Sinclair, at para. 27; R. v. Black, [1989] 2 S.C.R. 138, at pp. 154-155.
The Principles Applied
[136] I would not give effect to this ground of appeal. I am satisfied that the trial judge’s conclusion not to exclude the video recorded interview on the basis of an infringement of the implementational component of s. 10(b) does not reflect error.
[137] The appellant was arrested at 7:30 p.m. by officers who were not involved in the homicide investigation. On arrest, a pat down search took place. The arresting officer seized the appellant’s cellphone. Apprised of the reason for his arrest and his right to counsel, the appellant insisted that he did not know what was going on or what the officers were talking about. This would become a constant refrain throughout the appellant’s dealings with police. It was admittedly false. The appellant did not tell the arresting officer that he wanted to speak to a lawyer.
[138] Arresting officers turned the appellant over to other officers three minutes later. These officers, also uninvolved in the investigation, were assigned to transport the appellant to 55 Division. When the appellant denied that he had been advised of his right to counsel, an officer repeated the s. 10(b) Charter advice. A discussion followed about speaking to a lawyer. The appellant indicated that “I might as well speak to a lawyer” since the lawyer would have to deal with the matter anyway. But the appellant didn’t know a lawyer. Advised of the availability of free legal advice from duty counsel, the appellant said that he was “gonna have to speak to duty counsel”. He would do so, he said, at the police station.
[139] The appellant did not suggest at trial, as he does here, that he should have been given access to his own cellphone and left in the police car with the recording equipment turned off so he could speak to a lawyer. The appellant’s cellphone did not work because he had thrown away the SIM card before he was arrested. And there was no obligation on either transporting officer to offer use of their own cellphone so that the appellant could speak to a lawyer. Trial counsel conceded that the first reasonably available opportunity to speak to a lawyer was at the police station.
[140] When the appellant arrived in the booking room at 55 Division, the acting sergeant repeated the appellant’s right to retain and instruct counsel without delay. The officer told the appellant that he was entitled to make reasonable use of the telephone at the station. To do so, the appellant could ask either the officers who brought him to the station or the investigating officer. The appellant did ask to speak to his mother. An officer facilitated that call.
[141] The appellant did not ask any of the booking officers or either transporting officer to use the phone to call for legal advice. The appellant’s approach to speaking to a lawyer was at best ambivalent, barren of any reasonable diligence. From the outset, he was more interested in knowing the case against him than in obtaining legal advice.
[142] Prior to entering the interview room, D/Sgt. Idsinga had been advised by transporting officers that the appellant had received his s. 10(b) Charter advice and had indicated that he wished to speak to duty counsel.
[143] In the interview room, shortly after they began to speak, D/Sgt. Idsinga asked the appellant whether he wished to call a lawyer “right now”. The appellant responded, as he had previously, “I guess so. Like I don’t know what’s going on”. The officer offered to explain to the appellant what was “going on” but told him that he (the appellant) could talk to a lawyer first. D/Sgt. Idsinga repeated the appellant’s right to call a lawyer on several more occasions, but the appellant declined the offer: “no, not as right now sir”.
[144] In these circumstances, the trial judge was correct to find that the appellant had failed to establish a breach of the implementational component of s. 10(b) of the Charter.
Disposition
[145] For these reasons, I would dismiss the appeal.
Released: December 2, 2021 “D.W.” “David Watt J.A.” “I agree. M.L. Benotto J.A.” “I agree. Gary Trotter J.A.”
[^1]: J.B. absconded before trial and was not called as a witness.
