DATE: 20061120

DOCKET: C43401

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – PETERSON PHILOGENE (Appellant)

BEFORE:

WEILER, FELDMAN and MACFARLAND JJ.A.

COUNSEL:

Marc E. Schiffer

for the appellant

Shelley Maria Hallett

for the respondent

HEARD & RELEASED ORALLY:

November 14, 2006

On appeal from the conviction entered on November 24, 2004 and the sentence imposed on February 1, 2005 by Justice B. C. Hawkins, sitting with a jury.

E N D O R S E M E N T

[1] Peterson Philogene appeals his convictions for robbery and aggravated assault. He argues that the trial judge erred in ruling that his videotaped confession was admissible. The Crown acknowledges that if the appellant’s statements are not admissible in evidence, his conviction cannot stand. The appellant also appealed his sentence, but that appeal was abandoned.

Facts

[2] On the evening of February 20, 2004, Carol Ann Taylor (“Taylor”) was walking underneath an overpass near the Scarborough LRT station at Lawrence Avenue. A man approached her from behind, put his arm around her neck, and demanded her purse. Taylor refused to relinquish it. In the ensuing struggle, the individual stabbed Taylor multiple times, severely injuring her. Taylor did not get a good look at her assailant, but she was able to identify him as a male wearing a darker colour winter jacket. Two witnesses to the attack said that the attacker had dark skin. The witnesses did not identify the weapon used to stab Taylor as a knife, but one thought it looked like a metal tube.

[3] The appellant was subsequently located by a police tracking dog, arrested, and placed in the back of a police car. P.C. Darnley (one of the arresting officers) explained to the appellant his right to counsel. The appellant stated that he understood his rights, and that he wanted to call a lawyer when he got to the police station. At the station, P.C. Darnley told the officer-in-charge (Sergeant Johnston) that the appellant wished to call a lawyer at the earliest convenience. Sergeant Johnston told the appellant that he could use the telephone to contact a lawyer, and asked him if he understood. The appellant replied in the affirmative.

[4] The appellant was placed in an interview room at 9:00 p.m. and was interviewed by Detective Constable Imrie from 9:20 to 9:30 p.m. The appellant testified during the voir dire that Imrie spent the next 10 minutes feeding the appellant the version of events that he wanted the appellant to give in the videotaped interview that followed. Imrie testified that he was there to gather information for the Record of Arrest.

[5] The next person to interview the appellant was Detective Long, who according to the accused was accompanied by two other officers. According to the accused they all engaged in intimidation. Long testified that he identified himself, asked the appellant if he understood his right to counsel, and received an affirmative response from the appellant. Long also testified that he did not know that P.C. Darnley had told Sergeant Johnston that the appellant wanted to contact counsel at the earliest convenience, and Long did not ask the appellant whether he wanted to telephone counsel. The appellant testified that Long did not ask him if he understood his right to counsel, that Long did not have a note pad with him while he was in the room, and that Long did not take any notes. He also alleged that Long had made intimidating statements to him (along the lines of “I wish I had been there when you were arrested.”). Long admitted at trial that he was not assigned to do the Record of Arrest and that he went off-shift shortly after his brief interview with the appellant. The interview lasted less than five minutes and was not videotaped.

[6] At 10:05 p.m., Imrie gave the appellant a sandwich and a carton of milk. At 10:35 p.m., he went back to speak with the appellant. Imrie asked him whether he had been read his rights to counsel and his caution, and the appellant replied that he had and that he understood. Imrie asked him if he wanted to speak with a lawyer, and the appellant answered “no.” No one had told Imrie that the appellant had indicated that he wished to call counsel at the station, nor did Imrie believe that any opportunity had been provided to the appellant to call counsel while he was waiting in the interview room. Imrie proceeded to talk to the appellant about the incident in a non-videotaped interview. During this interview, the appellant stated that the weapon was not a knife but a bottle. The interview lasted fifteen minutes.

[7] The next interview, which lasted from 11:16 to 11:39 p.m., was videotaped. At the outset of the videotaped interview, Imrie informed the appellant of his right to counsel and asked him if he wanted to speak to a lawyer. The appellant said no. In the course of the interview, the appellant confessed to the offence. However, he testified on the voir dire that he had not been telling the truth. He said that he was so scared that he would have said anything to get out of the room, and that he had not given the interview of his own free will. Imrie denied allegations that he told the appellant that he could go home if he confessed.

[8] The trial judge ruled that both the videotaped statement and a transcript of it were admissible evidence. He held that the appellant had been informed of his right to counsel a number of times, and that on the videotape the appellant did not display any sign of fear.

[9] In his charge the jury, the trial judge said:

There is some circumstantial evidence and that is that the accused, dressed in black, essentially, was found in the general area. Now had there been nothing more, I probably would have instructed you to return verdicts of not guilty. But there is more in the form of a videotaped confession. The circumstantial evidence, while not enough on its own, may be considered by you as evidence supporting a confession.

[10] After an eleven-day jury trial, the appellant was found guilty of robbery, aggravated assault, and assault with a weapon.

Issues

Admissibility of Fresh Evidence

[11] At the outset of this appeal, the appellant sought to introduce fresh evidence. The fresh evidence consists of guilty pleas of another person, Woodley, to other robberies. The Crown opposes the admissibility of the fresh evidence. In our opinion, the proposed evidence does not meet the criteria for the admissibility of fresh evidence and is of no assistance.

Issue #1 The trial judge’s ruling on the voluntariness of the appellant’s statement

[12] The appellant submits that the trial judge erred in holding that the appellant’s statements were voluntary. He submits that the trial judge failed to appreciate that just because a statement was ultimately taped, there was still a real issue as to its voluntariness.

[13] We agree. In order to properly determine voluntariness, the trial judge was obliged to consider what preceded the taped statements. He ought to have found the untaped portion of the interviews suspect and gone on to do an analysis of whether there was a sufficient record of the untaped portion to be able to rule on the voluntariness of the taped portion. See this court’s decisions in R. v. Moore-MacFarlane (2001), 160 C.C.C. (3d) 493 (C.A.); R. v. Sabri (2002), 166 C.C.C. (3d) 179 (C.A.); R. v. Ahmed (2002), 170 C.C.C. (3d) 27 (C.A.). The appellant was in custody; video equipment was available and the police deliberately set out to interrogate him without taping. The resulting interrogation was thus rendered suspect by the fact that it was not recorded. The trial judge failed to take these factors into account as part of his reasoning on the question of the voluntariness of the taped statement.

[14] The circumstances prior to the taped interview are rendered even more suspect by the fact that at trial Const. Imrie admitted to making his notes after the interrogation; that his notes were selective, not exhaustive; and that they contained inaccuracies. On the voir-dire, Const. Imrie testified that it was impossible for him to stay on top of the conversation and make notes and that was why the notes were only a summary of portions of the conversation. At trial, Imrie admitted that his notes of the unrecorded 10:35 p.m. interrogation were after-the-fact summaries.

[15] In his reasons for rejecting the appellant’s evidence of intimidation and/or inducements to confess, the trial judge did not subject Imrie’s reasons for not videotaping the pre-statement interrogations to the same level of scrutiny that he applied to the appellant’s testimony. The appellant alleged that both fear of prejudice and hope of advantage had been held out to him by different police officers. The trial judge made only passing reference to officer Long’s denial of threats. He did not deal with the issue of inducement. In not doing so the trial judge further erred.

[16] The errors in the trial judge’s ruling would entitle the appellant to a new trial. However, the appellant raises a further issue as to whether his rights to counsel were violated and we now propose to deal with that issue.

Issue #2 The trial judge’s ruling as to whether the appellant’s s. 10(b) rights were violated

[17] We also agree with the appellant’s submission that his s. 10(b) rights were violated.

[18] Although the appellant told the arresting officer that he wished to speak to a lawyer when he arrived at the station, and this wish was communicated to the booking sergeant by the arresting officer, the appellant was not provided with access to a telephone in the hour and thirty-five minutes that he was detained in an interview room before he was interviewed by Constable Imrie.

[19] The duty to facilitate contact with counsel requires the police to offer to use of the telephone. See Bartle v. The Queen (1994), 92 C.C.C. (3d) 289 (S.C.C.). The fact that the breach of the appellant’s right to counsel involved the implementational aspect of the right as opposed to the informational aspect still resulted in the infringement of the appellant’s s. 10(b) rights. This is not a situation of the appellant failing to be diligent in the exercise of his right to counsel; he was never given the opportunity to be diligent in exercising that right prior to the breach of his right to counsel.

[20] We do not propose to enter into speculation as to whether the appellant would have given his statements had there been compliance with the implementational component of his rights. The accused was treated unfairly while he was in custody and the admission of his videotaped statement would bring the administration of justice into disrepute. His statements should have been excluded pursuant to s. 24(2) of the Charter.

[21] The appeal is therefore allowed, the conviction set aside and an acquittal is entered.

“Karen M. Weiler J.A.”

“K. Feldman J.A.”

“J. MacFarland J.A.”```