Her Majesty the Queen v. Lewis [Indexed as: R. v. Lewis]
86 O.R. (3d) 46
Court of Appeal for Ontario,
Catzman, Rosenberg and Goudge JJ.A.
May 8, 2007
Charter of Rights and Freedoms -- Appeals -- Raising Charter issue first time on appeal -- Accused being permitted to argue on appeal that s. 10(b) Charter right violated when police elicited statement from him after he asserted his right to counsel but before having opportunity to exercise it -- Appellate court having sufficient evidentiary record and no prejudice to Crown if determined for first time on appeal -- No tactical advantage to accused by not raising at trial -- Canadian Charter of Rights and Freedoms, s. 10(b).
Charter of Rights and Freedoms -- Right to counsel -- Police questioning accused after asserting right to counsel but before having opportunity to exercise it -- After accused speaking with counsel participating in videotaped line-up and giving audiotaped statement -- Accused being permitted to argue s. 10(b) breached for first time on appeal -- Recorded statements part of same interrogation and temporally linked to unrecorded statement taken in breach of s. 10(b) right -- Consultation with counsel before recorded statements made not insulating them from Charter scrutiny -- Statements conscriptive and s. 10(b) breach serious -- Recorded statements should have been excluded per s. 24(2) of the Charter -- Accused appeal from conviction allowed -- Canadian Charter of Rights and Freedoms, ss. 10(b), 24(2).
The accused was convicted of two counts of attempted murder and two counts of robbery. The two complainants were stabbed and robbed outside a subway station by three young men. The accused was advised of his right to counsel upon arrest [page47 ]and immediately stated that he wanted to talk to his lawyer. He was told that he could do so at the police station. He was placed in an interview room without being given an opportunity to contact counsel and then he was questioned by the investigating officer. No recording of any kind was made of the interview. The accused admitted to being involved in a fight outside the subway station but denied that weapons were involved. He agreed to do a photo line-up to identify the suspect who was still at large and to be recorded on video while doing so. He was then given an opportunity to speak to his lawyer. After doing so, he participated in a videotaped photo line-up and then made an audiotaped statement in which he again placed himself at the scene of the crime and admitted to punching one victim. The videotaped and audiotaped statements, but not the earlier, unrecorded, statement, were admitted at trial. On appeal from conviction, the accused argued for the first time that his rights under s. 10(b) of the Canadian Charter of Rights and Freedoms were violated.
Held, the appeal should be allowed.
As a general rule, Charter issues ought not to be raised for the first time on appeal. However, in this case there was a sufficient evidentiary record before the Court of Appeal to decide the Charter issue at first instance. The Crown was not prejudicially denied the right to call evidence on the s. 10(b) issue, and there was no tactical advantage to the accused in not raising it at trial. The issue was fully argued before the Court of Appeal. It would result in an unfairness if the accused were denied any adjudication of what would appear to be a serious Charter issue.
The unrecorded inculpatory statement first made by the accused to the police was clearly taken in violation of the accused's s. 10(b) rights. Once he had asked to speak to his lawyer, the police were obliged to refrain from eliciting incriminating evidence from him until he was afforded that opportunity. The fact that the videotaped and audiotaped statements which were admitted into evidence were given after the accused spoke to counsel did not immunize them from the earlier Charter breach. There was a close temporal connection between the original statement being taken in breach of the accused's s. 10(b) rights and the taking of the two recorded statements, and they were all part of the same interrogation process. The recorded statements were obtained in a manner that infringed the accused's right to counsel.
The recorded statements should not have been admitted under s. 24(2) of the Charter. They were conscriptive evidence and the breach of the accused's Charter rights was serious. The admission of the statements would undermine the fairness of the trial and would bring the administration of justice into disrepute. A new trial was ordered.
APPEAL from the convictions entered by Jennings J. of the Superior Court of Justice, sitting with a jury, dated March 27, 2004, and from the sentences imposed by Jennings J., dated May 4, 2004, for attempted murder and robbery.
Cases referred to R. v. Brown, 1993 114 (SCC), [1993] 2 S.C.R. 918, [1993] S.C.J. No. 82, 105 D.L.R. (4th) 199, 155 N.R. 225, 16 C.R.R. (2d) 290, 83 C.C.C. (3d) 129, revg 1992 12795 (AB CA), [1992] A.J. No. 602, 73 C.C.C. (3d) 481 (C.A.); R. v. Mayo, 1999 2695 (ON CA), [1999] O.J. No. 714, 61 C.R.R. (2d) 3, 133 C.C.C. (3d) 168 (C.A.); R. v. Plaha, 2004 21043 (ON CA), [2004] O.J. No. 3484, 123 C.R.R. (2d) 18, 188 C.C.C. (3d) 289, 24 C.R. (6th) 360 (C.A.); R. v. Prosper, 1994 65 (SCC), [1994] 3 S.C.R. 236, [1994] S.C.J. No. 72, 133 N.S.R. (2d) 321, 118 D.L.R. (4th) 154, 172 N.R. 161, 380 A.P.R. 321, 23 C.R.R. (2d) 239, 92 C.C.C. (3d) 353, 33 C.R. (4th) 85, 6 M.V.R. (3d) 181 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 10(b), 24(2) [page48 ]
James Stribopoulos and Lindsay Daviau, for appellant. Charmaine Wong, for respondent.
The judgment of the court was delivered by
[1] GOUDGE J.A.: -- Following a trial by judge and jury, the appellant was convicted of two counts of attempted murder and two counts of robbery. He was sentenced to seven years imprisonment, after being credited with the equivalent of three years for pre-trial custody.
[2] He appeals both his convictions and his sentence.
[3] He raises four arguments on his conviction appeal. He says that the trial judge should not have admitted the statements he made to the police following his arrest that were recorded on video and audiotape because the trial judge erred in finding them to be voluntary. Second, he says that these statements were taken in violation of his rights under s. 10(b) of the Canadian Charter of Rights and Freedoms. Third, he argues that the trial judge erred in his charge on party liability. Lastly, he says that the charge was not even-handed, contained speculation and was misleading in several respects.
[4] He also appeals his sentence and argues that the trial judge misapprehended the jury's conclusion about his role, and imposed an excessive sentence as a result.
[5] For the reasons that follow, I conclude that there must be a new trial because his statements were taken in violation of his s. 10(b) rights and should not have been admitted into evidence. It is therefore unnecessary to deal with the other issues raised on the conviction appeal, or with sentence.
[6] The events giving rise to these charges took place on November 23, 2002. The complainants, two young men who were best friends, were viciously attacked outside the Victoria Park subway station at approximately 1:30 a.m. by three young men they did not know. Both were stabbed and as a result suffered very serious injuries. Both were also robbed.
[7] Two of the three attackers were identified by photo line- up. The third remains at large. One of the two identified was a young offender who was arrested on November 30, 2002, and pleaded guilty to robbery.
[8] The other was the appellant. He was arrested by Detective Love on December 27, 2002 at 2:45 p.m. as he was leaving his [page49 ]apartment. He was advised of his right to counsel and immediately told Detective Love that he wanted to talk to his lawyer. Detective Love said that he could do so when they got to the police station.
[9] The appellant was then taken to the police station and was again advised of his right to speak to a lawyer. Although he did not reiterate his request to consult counsel, neither was he provided with the opportunity to do so in response to his earlier request.
[10] At 3:37 p.m., the appellant was placed in an interview room and searched. While the appellant and the police officers involved gave conflicting accounts of what transpired after that, the following was generally uncontested.
[11] From 4:05 p.m. to approximately 4:25 p.m., Detective Love and Detective Cowan, the lead investigator, were with him in the interview room, and Detective Cowan questioned him. There was no recording of any kind made of this interview.
[12] In this interview, the appellant initially denied being present at the Victoria Park subway station, but then admitted to being involved in a fight there, although not one involving weapons. He also agreed to a photo line-up to identify the outstanding suspect, and to be recorded on video while doing so.
[13] The appellant then repeated his request to talk to a lawyer and at that point was given that opportunity. After speaking with duty counsel, the appellant participated in a videoed photo line-up in which he unsuccessfully attempted to identify the third attacker, and then made a statement to the police that was audiotaped. In this statement, the appellant again placed himself at the scene and admitted to punching one victim. Both statements were concluded by 7:21 p.m.
[14] At trial, the Crown sought to introduce both the video and the audiotaped statements.
[15] The police evidence made clear that there was videotaping equipment readily available at the police station, that they conducted themselves throughout in the hope that the appellant would give a statement, and that their notes of what transpired without being recorded were not very good and of little assistance.
The Section 10(b) Issue
[16] Section 10(b) of the Charter reads as follows:
- Everyone has the right on arrest or detention
(b) to retain and instruct counsel without delay and to be informed of that right; ... [page50 ]
[17] The appellant argues that the two recorded statements were taken in violation of his s. 10(b) rights because they were part of the police interview process that started at 4:05 p.m. That process began after the appellant had asked to speak to a lawyer but before he was given a reasonable opportunity to do so. The appellant says that in the circumstances the statements were made in violation of his s. 10(b) rights, and were not properly admissible pursuant to s. 24(2) of the Charter.
[18] The appellant did not raise this argument at trial. In ruling the recorded statements to be admissible, the trial judge said this:
I am conscious that this is not a Charter application, but Crown counsel conceded that this wrongful refusal of Detective Cowan's to hold off questioning in the face of the request for counsel is a factor I can consider in determining voluntariness.
[19] The respondent now argues that the appellant should not be permitted to raise the Charter issue at this stage. It says that the Crown might have sought to elicit further evidence had it been raised at trial, and in any event, there is an insufficient evidentiary basis for this court to determine the issue.
[20] There is no doubt that the clear general rule is that Charter issues ought not to be raised for the first time on appeal. There is good reason for this. There is possible prejudice to the adversely affected litigant who is unable to call the evidence it would have wished on the issue. As well, there may be an absence of a sufficient record for the appellate court to properly determine the matter.
[21] However, the rule is not absolute. In R. v. Mayo, 1999 2695 (ON CA), [1999] O.J. No. 714, 133 C.C.C. (3d) 168 (C.A.), this court exercised its discretion to permit a Charter issue to be raised for the first time, citing R. v. Brown, 1993 114 (SCC), [1993] 2 S.C.R. 918, [1993] S.C.J. No. 82, 83 C.C.C. (3d) 129. In Brown, the majority of the Supreme Court of Canada agreed with the dissent of Harradence J.A. in the Alberta Court of Appeal, reported at 1992 12795 (AB CA), [1992] A.J. No. 602, 73 C.C.C. (3d) 481. At p. 488 C.C.C., Harradence J.A. put it this way:
Where the court has a sufficient factual foundation to appraise the issue without prejudice to the parties and particularly where refusing to do so will result in unfairness, then in my view it is proper for the appeal court to hear and determine the question put before it.
(Emphasis in original)
[22] In this case, there is a very full evidentiary record of the entire interaction between the police and the appellant, from his arrest to the conclusion of the second recorded statement. [page51 ]This includes the uncontested fact that the appellant expressed his wish to speak to a lawyer immediately upon his arrest, but was not afforded a reasonable opportunity to do so until after being questioned by the police between 4:05 p.m. and 4:25 p.m. During that interview, he admitted that he had been at the scene of the crime and had been involved in a fight. In my view, there is a sufficient record for this court to properly determine the issue.
[23] The Crown also argues that if the issue had been raised at trial, it could have tailored its evidence accordingly in two respects.
[24] It says that it might have called an additional police witness to testify about Detective Love's initial dealing with the appellant. However, that episode was fully testified to by both Detective Love and the appellant, and there is no suggestion that the additional witness would add anything of substance. Moreover, the critical fact, namely that the appellant's request to consult a lawyer went unfulfilled until after his first interrogation, is not in dispute.
[25] The Crown also says that if this issue had been raised at trial it might have been able to make a live issue out of whether the appellant was diligent in asserting his right to counsel. However, there is no suggestion of any evidence that might have been called in this connection. Moreover, there is a full record of the entire interaction between the appellant and the police post-arrest, and there is nothing preventing the Crown from arguing this point on that record.
[26] The Crown did not argue that the record suggested any tactical advantage to the defence in not raising the Charter issue at trial. Nor can I think of one.
[27] Finally, this court heard full argument on the Charter issue.
[28] To summarize, this court has a sufficient evidentiary record to decide the Charter issue at first instance. The Crown does not appear to have been prejudicially denied the right to call evidence on the issue. There was no tactical advantage to the appellant in not raising it at trial. The issue was fully argued before us. And, it would result in an unfairness if the appellant were denied any adjudication of what would appear to be a serious Charter issue. It is therefore appropriate that this court address it.
[29] Turning then to the merits of the Charter issue, there can be no doubt that the inculpatory statements made by the appellant to the police between 4:05 p.m. and 4:25 p.m. were taken in violation of his s. 10(b) rights. He had already expressed his wish to exercise his right to consult a lawyer but had not been given an [page52 ]opportunity to do so. Once he made this request the police were obliged to refrain from eliciting incriminating evidence from him until he was afforded that opportunity. See R. v. Prosper, 1994 65 (SCC), [1994] 3 S.C.R. 236, [1994] S.C.J. No. 72, 92 C.C.C. (3d) 353, at p. 269 S.C.R., p. 375 C.C.C.
[30] The Crown relies on the fact that the two statements admitted into evidence, the video statement and the audio recording, were given after the appellant subsequently spoke to counsel.
[31] In my view, this does not immunize them from the earlier Charter breach. In circumstances such as this, the analysis is that described by Doherty J.A. in R. v. Plaha, 2004 21043 (ON CA), [2004] O.J. No. 3484, 188 C.C.C. (3d) 289 (C.A.) at para. 45:
The evidence will be "obtained in a manner" that infringed a Charter right if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three. The connection must be more than tenuous.
(Citation omitted)
[32] In this case there was a close temporal connection between the taking of the original statement between 4:05 p.m. and 4:25 p.m. in breach of the appellant's s. 10(b) rights, and the taking of the two recorded statements that were concluded less than three hours later. Moreover, the three statements were all part of the same interrogation process. The appellant remained in the custody of the same police officers during that time and their objective throughout was to obtain statements from the appellant. The inculpatory audio recording is essentially a repeat of the first statement made by the appellant prior to obtaining legal advice. The police made no attempt to sever any connection between these two. As Doherty J.A. put it in Plaha, at para. 53"[t]he absence of any attempt by the police to make a 'fresh start' after the appellant had spoken with counsel further cements the connection" between the statements.
[33] I would therefore conclude that the video statement and the audio recording were obtained in a manner that infringed the appellant's right to counsel.
[34] I would also conclude that these statements should not be admitted pursuant to s. 24(2) of the Charter. They were conscriptive evidence. The police questioning of the appellant from 4:05 p.m. to 4:25 p.m., while he was in their custody at the police station after having unsuccessfully sought the opportunity to talk to a lawyer, was a serious breach of his s. 10(b) rights. There is nothing to suggest that the appellant would have provided the [page53 ]same conscriptive evidence had he been accorded his constitutional rights. The appellant's conduct during the two recorded statements does not admit of any such inference. As Doherty J.A. said in Plaha, at para. 61, in addressing the same question, the appellant had "committed himself to a certain position with the police" between 4:05 p.m. and 4:25 p.m. without having been given his right to counsel. No advice that counsel could have given him after that could change that reality.
[35] To summarize, the admitted statements were conscriptive. The breach of the appellant's s. 10(b) rights was serious. The admission of the statements would undermine the fairness of the trial, and would bring the administration of justice into disrepute. They should not have been admitted.
[36] I would therefore allow the appeal, quash the conviction, and order a new trial.
Appeal allowed.