DATE: 20020802
DOCKET: C33215

COURT OF APPEAL FOR ONTARIO

MOLDAVER, GILLESE and ARMSTRONG JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

Russell Silverstein for the Appellant

• and -

WILLIAM MURDOCK McKENZIE

Appellant

Feroza Bhabha for the Respondent

Heard: June 5, 2002

On appeal from conviction by Justice J.H. Brokenshire with a jury on June 9, 1999.

MOLDAVER J.A.:

1. [1] On March 24, 1998, the appellant was arrested and charged with second degree murder in connection with the death of Ronald Lougheed. Following his arrest, the appellant made it known that he did not wish to say anything and that he wanted to speak to counsel. Before being given a reasonable opportunity to do so, the police confronted him with some very damaging evidence to which he made several incriminatory responses.

2. [2] At trial, the appellant sought to have the incriminatory responses excluded on the basis that they were obtained in violation of his s. 10(b) Charter rights and that their admission into evidence would bring the administration of justice into disrepute. The trial judge disagreed, the statements were ruled admissible and the appellant was convicted of second degree murder. He appeals from that conviction and raises two issues, the primary one being the admissibility of the impugned responses.

3. [3] In R. v. Manninen (1987), 1987 67 (SCC), 34 C.C.C. (3d) 385 (S.C.C.), the Supreme Court of Canada held that under s. 10(b) of the Charter, when detainees assert their right to retain and instruct counsel, the police must cease questioning or otherwise attempting to elicit evidence from them until they have been afforded a reasonable opportunity to consult with counsel. This appeal focuses on the meaning of the word ‘elicit’ in that context and the test to be applied in determining whether the conduct of the police, in any given case, has crossed the permissible line.

4. [4] Although the word ‘elicit’ does not lend itself to a short and precise meaning, I am of the view that the test to be applied is one which concentrates on the interchange between the police and the detainee with a view to determining whether, in all of the circumstances, there is a causal link between the conduct of the police and the making of the statement by the detainee. Unfortunately, the trial judge in the present case did not apply that test. Rather, he focused on whether the appellant had been accorded his right to consult counsel and if so, whether by their conduct, the police effectively deprived him of his right to choose to remain silent, thereby negating the purpose of the right to counsel.

5. [5] With respect, I believe that the trial judge used the wrong test. Had he applied the correct test, I am satisfied that on this record, he would have found a causal link between the conduct of the police and the making of the impugned responses by the appellant. Accordingly, he should have found that the responses were obtained in a manner that violated the appellant’s s. 10(b) Charter rights.

6. [6] I am likewise of the view that the trial judge’s alternate basis for admitting the statements under s. 24(2) of the Charter cannot be sustained. In view of that, and my further conclusion that this is not a case in which the curative proviso can safely be applied, I would allow the appeal and order a new trial.

THE FACTS

Events leading up to the appellant’s arrest

7. [7] On September 1, 1997, the body of Ronald Lougheed was discovered in a wooded area in Windsor, Ontario. He had suffered a single .22 calibre gunshot wound to the head.

8. [8] At all material times, the appellant lived in an apartment at 921 Wellington Avenue in the City of Windsor. He and the deceased were acquaintances and the deceased, along with a number of other unsavoury individuals, used the appellant’s apartment as a place to drink liquor and consume drugs.

9. [9] In October 1997, about a month after Lougheed's body had been found, the police executed a search warrant at the appellant’s apartment. The search revealed blood matching that of the deceased and a spent bullet consistent with .22 calibre ammunition. Those findings led the police to conclude that the deceased had been shot in the appellant’s apartment. Accordingly, they sought out the appellant and interviewed him.

10. [10] At the time of their initial interview with the appellant, the police believed that the murder had been committed by Wayne Ross, a close friend of the appellant. The appellant was not a suspect and the investigating detectives made that known to him. At most, they believed that he knew the identity of the killer. In the ensuing interview, the appellant described the deceased as an “occasional drinking buddy”. He denied any knowledge of the murder.

11. [11] In March 1998, Ken Legace, a friend of the appellant, offered to assist the police in their investigation. To that end, Legace introduced the appellant to Josh Ouellette, an undercover officer from New Brunswick. Legace led the appellant to believe that Ouellette was a criminal and a drug addict with “biker” connections. It was the hope of the police that Ouellette would gain the appellant’s confidence and that the appellant would provide him with details of the murder. In furtherance of the plan, Ouellette and Legace convinced the appellant to join them on a road-trip to New Brunswick. Unbeknownst to the appellant, Ouellette was wearing a body pack and he was taping the appellant’s conversations.

12. [12] The exercise proved fruitful. The appellant confessed to killing Lougheed and confided that Wayne Ross was present at the time and that he had “freaked out”. He also described the circumstances surrounding the killing, his reasons for shooting Lougheed, his preference for .22 calibre bullets and the professional clean-up job he had done on his apartment. He further admitted to Legace that he had used Legace’s car to dispose of the body and that he had hidden the gun in a place where it would not be found.[^1]

The arrest and the making of the impugned statements

13. [13] The appellant was arrested at 6:35 p.m. on March 24, 1998 by Detectives Lovell and Perpich. Upon being advised of his right to counsel, he told the officers that he wanted to contact Gerry Tuck, a local criminal lawyer. At some point, either on the way to the station or at the station, the appellant stated to Detective Perpich, “I thought you said I didn’t do it”. Neither Perpich nor his partner responded.

14. [14] At 6:55 p.m., the appellant was taken to an interview room containing video equipment. Upon entering the room, he said, “I want my lawyer”. He was told to sit down and asked to identify himself, which he did. After being informed that the interview was being recorded on both audio and video equipment, the appellant was again informed of his right to counsel. At that time, he asked for his lawyer and was escorted downstairs where he placed a phone call to Mr. Tuck. He was then taken back to the video room, where it was confirmed, on videotape, that he had not succeeded in speaking to his lawyer but that he had left a message for him.

15. [15] Detective Perpich then cautioned the appellant and at 7:05 p.m., the appellant stated that he had nothing to say. At 7:06 p.m., the detective asked the appellant if he wanted to make a statement, to which the appellant replied: “No, I want to speak to my lawyer”.

16. [16] At 7:07 p.m., immediately following the appellant’s request to speak to counsel, the detectives brought Constable Ouellette into the room and introduced him to the appellant. Ouellette told the appellant that he was under arrest because he [Ouellette] was in fact a police officer and he had been involved in the investigation. Ouellette then told the appellant to “take care of [himself]” and he left the room.

17. [17] According to the detectives, it was Ouellette’s idea to introduce himself to the appellant and they had gone along with it so that the appellant would be aware of Ouellette's true identity and the new information the police had against him. Ouellette, on the other hand, testified that whenever he was involved in an undercover operation, it was his practice to introduce himself to the suspect after the suspect had been arrested.

18. He further testified that he had done so on 89 prior occasions and based on his experience, it was reasonable to expect that the suspect might consider it “a good idea … to come clean”. He was quick to add, however, that in engaging in this practice, it was never his intention to elicit a confession from the suspect. When asked whether he had told the detectives what they might expect upon his being introduced to the appellant, he responded: “No sir, no, it never crossed – I don’t remember mentioning it, if I did”.

19. [18] At 7:08 p.m., Detective Perpich told the appellant that he wanted him to hear something and he began playing a portion of the taped conversations between the appellant and Ouellette in which the appellant claimed responsibility for the killing. Three minutes later, at 7:11 p.m., the appellant told the detectives that he “didn’t need to hear any more”. Detective Perpich asked, “you don’t need to hear any more?”, following which the detective made a further inaudible comment and continued to play the tape.

20. [19] When asked why he was playing the tape in the first place, Detective Perpich testified that he wanted the appellant to know that the police had him on tape confessing to the murder. When asked why he continued to play the tape after hearing the appellant say that he had heard enough, Detective Perpich stated that he wanted to ensure that the appellant knew exactly what conversations Ouellette had recorded.

21. [20] At 7:14 p.m., just as the tape of the intercepted communications was ending, the appellant made an inaudible comment that caused the detectives to sit up and take notice. The detectives asked the appellant what he had said and they shut off the tape recorder. The appellant then got up and asked the detectives to take him to the cells. Rather than comply with his request, he was told to sit down. Detective Perpich advised the appellant that he wanted him to tell his lawyer about the intercepted conversations and then he continued as follows: “Okay, you told me you don’t want – you don’t wish to make a statement?” The appellant replied that he did not and as he started to get up, he was told to stay in his seat. Moments later, while the detectives were completing their notes, the appellant spoke out, stating that he had “sunk himself” and that he “might as well start doing [his] 25 now”. The interview was then officially concluded and the appellant was taken from the interview room.

22. [21] On the way to the cells, Detective Lovell stated that the appellant slumped into the corner of the elevator and he thought the appellant might be on the verge of collapsing. He asked the appellant if he was all right and the appellant nodded in the affirmative. The appellant was then overheard to say, “I’ll be 59”. Detective Lovell understood that to mean that the appellant would be 59 years-old before being released from jail.

23. [22] Shortly thereafter, while seated on a bench in the cell registration area, the appellant put his head down and according to Detective Perpich, he said, “He got me drunk, he got me totalled” and “at least I can enjoy a good sleep now”.

THE TRIAL JUDGE’S RULING

24. [23] At trial, the appellant applied unsuccessfully to have his two remarks at the end of the interview and his comments in the elevator and the cell registration area excluded from evidence. In his ruling, the trial judge reviewed the evidence relating to the introduction of Ouellette and the playing of the incriminatory intercepted conversations and he found that the appellant did not appear to be shocked, surprised, or overly-distressed by the police conduct; nor did he appear to lose his ability to reason or deal with the matter. He then referred to R. v. Manninen, supra, and after noting the Supreme Court’s admonition that for the right of counsel to be effective, the detainee must have access to counsel’s advice “before he is questioned or otherwise required to provide evidence”, the trial judge continued:

Here, it must be emphasized, the accused was not being questioned. The only questions put to him were that, do you understand what you are being charged with, do you understand your rights, do you want to make a statement.

What was happening was that the accused was simply being exposed to the case before him. It could well be argued, as Mr. Costa did, that the police were carrying out their duty and obligation under s. 10(a), to inform the accused of the reasons for his detention. This was certainly a very powerful way of doing so and it was making completely obvious to him what appears to be a very overwhelming case against him. The only real comment at the end of that, other than, did you hear that, did you understand that, was, “I want to make sure that you tell your lawyer about this”, and, “You don’t want to make a statement?”, “No”, “Fine, that’s it”. This was not a situation where an inquisition was going on. He was not being questioned. He was not being asked to do other things, like participate in a line-up. It was just, “hear the case that we have against you.”

25. [24] Later, after referring to R. v. Borden (1994), 1994 63 (SCC), 92 C.C.C. (3d) 404 (S.C.C.) and the discussion at p. 419 about the linkage between the rights in ss. 10(a) and (b) of the Charter, the trial judge summarized the situation as he perceived it, in the following terms:

Here, in my view, that linkage is clearly exemplified. You have somebody who says he wants counsel, given an immediate or almost immediate right to attempt to call his lawyer. There is certainly nothing done other than to record the fact that he wanted to speak to a lawyer before he was given the chance, and when he was unable to get through, he is then being given the information on which he could seek advice.

26. [25] The trial judge then referred to R. v. Hebert (1990), 1990 118 (SCC), 57 C.C.C. (3d) 1 (S.C.C.) and after quoting a passage from p. 35 to the effect that suspects are afforded the right to counsel to enable them to make an informed choice about whether or not to speak to the authorities, he identified two questions from p. 36 of the decision that he considered important in resolving the s. 10(b) issue before him:

Questions to be considered: “Was the suspect accorded his/her right to consult counsel? By extension, is there other police conduct which effectively deprived the suspect of the right to choose to remain silent, thus negating the purpose of the right to counsel?”

27. [26] Having identified the two determinative questions, the trial judge completed his s.10(b) analysis by answering them as follows:

My finding here is simply and directly that the suspect was accorded his right to consult counsel and I do not find that there is anything in the police conduct which effectively deprived the suspect of his right to choose to remain silent, thus negating the purpose of the right to counsel. I find that the statements that the accused made are statements that he made freely, without any urging or pressing. I do not find that the process of revealing to somebody the case against them, starting by saying, “We understand you don’t want to say anything”, ending by saying, “We confirm you don’t want to say anything”, and “Just make sure you tell your lawyer about it”; I fail to find that that in anyway whatsoever infringes the provision or the spirit of the provisions of s. 10(b).

ANALYSIS OF THE S. 10(b) ISSUE

28. [27] At the outset of these reasons, I referred to the principle, enunciated in R. v. Manninen, that under s. 10(b) of the Charter, when detainees assert their right to retain and instruct counsel, the police must cease questioning or otherwise attempting to elicit evidence from them until they have been afforded a reasonable opportunity to consult with counsel. To date, I am unaware of any Canadian authority (and none was cited) in which the word ‘elicit’ has been defined in that context; nor am I aware of any Canadian decision that sets out the test against which the conduct of the police is to be measured to determine whether it amounts to elicitation.

29. [28] That said, it is not as if the Canadian waters are completely uncharted. On the contrary, I believe that the Supreme Court of Canada has set the course in its jurisprudence on the related subject of the right to silence guaranteed by s. 7 of the Charter. In that regard, the court’s decision in R. v. Broyles (1991), 1991 15 (SCC), 68 C.C.C. (3d) 308 (S.C.C.) is particularly instructive.

30. [29] At issue in Broyles was the admissibility of a taped conversation between Broyles, who was being held in custody for the murder of his grandmother, and his friend Todd Ritter, whom the police had asked to visit Broyles. The particular issue to be determined was whether the interchange between Ritter and Broyles offended Broyles’ right to silence under s. 7 of the Charter. In the seminal case of Hebert, supra, the Supreme Court had made it clear that in circumstances such as those existing in Broyles, police conduct amounting to elicitation would result in a s. 7 violation. However, the court had not been required to define the word 'elicitation' precisely, something it had to do in Broyles to reach a conclusion. The key passage from Broyles is found at pp. 320-321, where Iacobucci J., writing for the court, discussed the word ‘elicitation’ as follows:

In my view, it is difficult to give a short and precise meaning of elicitation but rather one should look to a series of factors to decide the issue. Those factors test the relationship between the state agent and the accused so as to answer this question: considering all the circumstances of the exchange between the accused and the state agent, is there a causal link between the conduct of the state agent and the making of the statement by the accused? For convenience, I arrange these factors into two groups. This list of factors is not exhaustive, nor will the answer to any one question necessarily be dispositive.

The first set of factors concerns the nature of the exchange between the accused and the state agent. Did the state agent actively seek out information such that the exchange could be characterized as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done? The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation.

The second set of factors concerns the nature of the relationship between the state agent and the accused. Did the stage agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the state agent and the accused? Was the accused obligated or vulnerable to the state agent? Did the state agent manipulate the accused to bring about a mental state in which the accused was more likely to talk? [Emphasis added].

31. [30] Obviously, the s. 7 Broyles analysis does not fit precisely into the s. 10(b) Manninen mould. Whereas a Broyles detainee does not know that the person opposite is a police officer or state agent, the Manninen detainee does. On the other hand, unlike the Manninen detainee, a Broyles detainee will usually have received legal advice from counsel. Hence, although the nature of the exchange and the nature of the relationship between the authorities and the detainee will remain important, the factors to be considered and the questions to be posed will not be identical. That said, for present purposes, Broyles shows the way by endorsing a causal link approach to the issue of elicitation and I see no reason why that approach should not be followed in the context of s. 10(b).

32. [31] Returning to the case at hand, I am respectfully of the view that the trial judge did not apply the correct test in determining whether the impugned statements were elicited by the police in contravention of the appellant's s. 10(b) rights. Rather than looking at all of the circumstances to determine if there was a causal link between the conduct of the police and the making of the statements, the trial judge applied the test from Hebert, supra, designed to determine when police conduct will be viewed as depriving an accused of his or her right to choose to speak to the police or remain silent in contravention of s. 7 of the Charter. For convenience, I repeat the relevant portion of the trial judge’s reasons, commencing with the passage from Hebert containing the two questions which the trial judge obviously considered important in resolving the s. 10(b) issue before him:

Questions to be considered: “Was the suspect accorded his/her right to consult counsel? By extension, is there other police conduct which effectively deprived the suspect of the right to choose to remain silent, thus negating the purpose of the right to counsel?”

My finding here is simply and directly that the suspect was accorded his right to consult counsel and I do not find that there is anything in the police conduct which effectively deprived the suspect of his right to choose to remain silent, thus negating the purpose of the right to counsel. I find that the statements that the accused made are statements that he made freely, without any urging or pressing. I do not find that the process of revealing to somebody the case against them, starting by saying, “We understand you don’t want to say anything”, ending by saying, “We confirm you don’t want to say anything”, and “Just make sure you tell your lawyer about it”; I fail to find that that in anyway whatsoever infringes the provision or the spirit of the provisions of s. 10(b). [Emphasis added].

33. [32] As indicated, I believe that in focusing on the two questions posed in Hebert, the trial judge used the wrong test to assess the s. 10(b) issue before him. Even on the test he used, the trial judge's analysis cannot be sustained because of his finding, in response to the first question, that the appellant had in fact been accorded his right to consult with counsel. With respect, that finding is not supported by the evidence. The record is clear that although the appellant was allowed to phone his lawyer, he did not speak to him. Manifestly, the right to retain and instruct counsel means more than being afforded an opportunity to place a phone call to one’s lawyer. It entails speaking with the lawyer or at the very least, being given a reasonable opportunity to do so.

34. [33] In the instant case, the appellant did not speak to his lawyer, nor was he given a reasonable opportunity to do so before the police confronted him with Constable Ouellette and the incriminating intercepted communications. The trial judge’s finding to the contrary, though incorrect, was in my view an important one and it had the effect of skewing his analysis.

35. [34] In assessing the police conduct and its impact on the appellant, the starting point should not have been that the appellant, having consulted with counsel, was aware of his right to remain silent; rather, it should have been that he was unaware that he had such a right or at very least, unaware how to exercise it. That is the context within which the conduct of the police should have been assessed to determine whether it contributed in a material way to the making of the impugned statements.

36. [35] In my view, had the trial judge approached the matter that way, he would have concluded that although the police did not pose direct questions to the appellant in the hope of eliciting an incriminatory response, their conduct amounted to the functional equivalent of an interrogation. Certainly, based on Constable Ouellette’s experience, it was not unreasonable in the circumstances to expect that the appellant would “come clean” upon learning Ouellette’s true identity, without the need for a direct question such as: “What do you have to say about your involvement now?”

37. [36] Along the same lines, I am of the view that the conduct of the police constituted a form of manipulation which, even if unintended, had the effect of bringing about a mental state in which the appellant was more likely to talk. In this regard, it must be remembered that this is not a case in which, after speaking with counsel and being fully apprised of his rights, the appellant chose to volunteer information to the police. In that sense, the circumstances here are materially different than in cases such as Hebert and Broyles where the accused, before talking, had consulted with counsel and received legal advice.

38. [37] The appellant in the instant case did not receive the benefit of legal advice – advice which would have alerted him not only to his rights but also to various types of police conduct of which he should be wary. Absent such advice, the appellant was particularly vulnerable and susceptible to being manipulated into a mental state in which he was more likely to talk. Had the trial judge viewed the matter that way, he would have found the causal link needed to establish a violation of the appellant’s s. 10(b) rights.

39. [38] In sum, I am of the view that had the trial judge applied the correct test, he would have found a causal link between the conduct of the police and the making of the statements by the appellant sufficient to establish a breach of the appellant’s s. 10(b) rights.

40. [39] In view of this conclusion, it is necessary to consider the alternate basis upon which the trial judge found the impugned statements to be admissible.

41. Were the statements admissible under s. 24(2) of the Charter?

42. [40] After determining that the statements were not obtained in a manner that violated the appellant’s s. 10(b) rights, the trial judge continued, in the last paragraph of his reasons, to address the question of admissibility on the basis that his s. 10(b) ruling might be incorrect. His reasons for concluding that the statements would nonetheless be admissible are reproduced in full below:

If I should in any way be wrong in that conclusion [that the statements were not obtained in violation of the appellant's s. 10(b) rights], I would make the further observation that certainly in these circumstances, it would seem to me that even if there was, or it could be argued to be an infringement, the failure to admit this in these provisions would be the sort of thing which might well bring the administration of justice into disrepute. I feel that if somebody wants to make extemporaneous statements, the police duty is to record them and bring them to the attention of the court and the court can make interpretations on them.

43. [41] With respect, I do not agree with the trial judge’s s. 24(2) analysis; nor do I agree with his conclusion. If the statements were obtained in violation of the appellant’s s. 10(b) rights, then they come squarely within the class of evidence identified in R. v. Stillman (1997), 1997 384 (SCC), 113 C.C.C. (3d) 321 (S.C.C.) as “conscriptive evidence”. As Cory J., for the majority pointed out at p. 353:

The traditional and most frequently encountered example of this type of evidence [conscriptive evidence] is a self-incriminating statement made by the accused following a violation of his right to counsel as guaranteed by s. 10(b) of the Charter.

44. [42] That is precisely the situation here. Without going into detail, the Crown invited the jury to find that at least one of the appellant’s post-arrest comments was incriminating[^2] and the trial judge told the jury that in his view, the appellant’s appearance during the video and his words after were “particularly important”.

45. [43] In the circumstances, having determined that the statements were obtained in violation of the appellant’s s. 10(b) Charter rights, I am firmly of the view that they should have been excluded because their admission would render the trial unfair. Accordingly, unless the curative proviso can be applied, the conviction cannot stand and a new trial must be ordered.

46. Can the curative proviso be applied?

47. [44] The case for the Crown was very strong without the impugned statements. However, part way through their deliberations, the jury asked for a replay of that portion of the video which followed the appellant’s unsuccessful attempt to contact his lawyer and which contained two of the impugned responses. The replay occurred shortly after 2:00 p.m. and the jury retired to continue their deliberations at 2:15 p.m. Seventeen minutes later, at 2:32 p.m., they returned to the courtroom with a verdict of guilty.

48. [45] In view of the jury’s interest in the appellant’s post-arrest statements and the trial judge’s emphasis on them, I cannot say that the verdict would necessarily have been the same had the statements been excluded. To the extent that the test for applying the proviso may be stricter where the admissibility of unconstitutionally conscripted evidence is in issue,[^3] this only strengthens my view that the proviso cannot be applied in this case.

49. [46] Accordingly, I have concluded that the conviction cannot stand and a new trial must be ordered.

Additional Ground of Appeal

50. [47] The appellant raised an additional ground of appeal relating to the trial judge’s failure to give a limiting instruction in respect of evidence that portrayed him as a person of bad character. In the circumstances, I see no merit in this ground. However, depending on the evidence at the new trial and the position of the parties, it will be for the trial judge to determine what, if any, limiting instruction should be given.

CONCLUSION

51. [48] The trial judge used the wrong test in determining that the appellant's post-arrest statements were not obtained in a manner that violated his s. 10(b) rights. Had he used the correct test, he would have come to a different conclusion and ruled the statements inadmissible. In the circumstances, the curative proviso cannot be safely applied. Accordingly, I would allow the appeal, quash the conviction and order a new trial on a charge of second degree murder.

Signed: “M. Moldaver J.A.”

“I agree E.E. Gillese J.A.”

“I agree Robert P. Armstrong J.A.”

RELEASED: “MJM” AUGUST 2, 2002

[^1]: The police had seized Legace’s car on September 15, 1997. In it, they found blood matching the deceased’s blood. They also matched tire tracks, located at the site of Lougheed’s body, with the tires on Legace’s car.

[^2]: In his intercepted conversations with Constable Ouellette, the appellant stated that after the murder, he had not been able to get a good night's sleep. Crown counsel invited the jury to consider this remark and compare it with the appellant's post-arrest comment, in the cell registration area, that "at least I can enjoy a good sleep now".

[^3]: See R. v. Burlingham (1995), 1995 88 (SCC), 97 C.C.C. (3d) 385 (S.C.C.) where at p. 409, Iacobucci J. suggested that in such cases, the proviso can only be applied if it is “shown beyond a reasonable doubt that the impugned evidence … did not contribute at all to the original verdict”.