R. v. Smith, 2008 ONCA 127
CITATION: R. v. Smith, 2008 ONCA 127
DATE: 20080222
DOCKET: C45828
COURT OF APPEAL FOR ONTARIO
ROSENBERG, MACPHERSON and SIMMONS JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
GREGORY BROCK SMITH
Appellant
Leslie Maunder for the appellant
Roger A. Pinnock for the respondent
Heard: December 3, 2007
On appeal from conviction entered by Justice Faith M. Finnestad of the Ontario Court of Justice dated March 9, 2006 and sentence imposed dated March 24, 2006.
ROSENBERG J.A.:
[1] The principal ground of appeal raised in this case concerns the admissibility of a conversation between the appellant and his co-accused while the two of them were being held in custody after their arrest. The appellant was tried for various offences, the most serious relating to a home invasion. At trial, the appellant and his co-accused challenged the admissibility of the conversation on the basis that their rights under the Charter of Rights and Freedoms had been infringed. Finnestad J. found that there was no infringement of s. 7 and that ruling is no longer challenged. However, the appellant argues that his s. 10(b) rights were also infringed and that this stood as an independent ground for excluding the conversation.
[2] The trial judge did not deal with the admissibility of the conversation in relation to s. 10(b), perhaps because most of the submissions were focused on the s. 7 argument. I am satisfied, however, that s. 10(b) was raised and that the appellant is not barred from relying on that provision in this court. For the following reasons, I would give effect to that ground of appeal and allow the appeal in part.
THE FACTS
[3] The chronology of events is important to understanding the appellant’s principal ground of appeal. Sometime before 4:00 a.m. on September 20, 2004, three masked men broke into the home of Emelio Giangrande and began to assault him. Mr. Giangrande was able to flee the scene and call the police. In the meantime, the perpetrators left the home. The appellant and Giangrande knew each other because Giangrande’s girlfriend was the appellant’s former common law spouse. There was some evidence of bad blood between the appellant and Giangrande. While Giangrande purported to identify the appellant as one of his assailants, the trial judge held that this evidence was unreliable.
[4] A short time after Giangrande escaped from his house, a police officer had reason to stop the appellant’s vehicle. After a short police chase, during which items taken from the Giangrande home were thrown from the vehicle, the vehicle was stopped and the appellant and two companions were detained. The appellant was arrested for dangerous driving at 4:16 a.m. The vehicle was searched at the scene and a quantity of marijuana was found. As a result, the appellant’s companions Carlos Silva and Edsel Barillas were arrested for possession of drugs.
[5] The police soon realized the connection between the Giangrande home invasion and the appellant’s vehicle. While they knew firearms were involved in the home invasion, they did not find any. The appellant and his companions were taken back to the police station. At that time, the appellant was only under arrest for dangerous driving.
[6] Both the appellant and Silva had been informed of their right to counsel upon arrest. The appellant indicated a desire to speak to his lawyer on two occasions shortly after the arrest. At 7:35 a.m. the appellant became aggressive with the investigating officers and he was returned to his cell where he again asked to speak to his lawyer. The appellant was told he would not be allowed to make any calls at that time. The reasons given by the police at trial for not allowing any conversation was that the appellant might contact someone who would pick up the missing gun and “officer safety” because the appellant had become aggressive.
[7] By 9:05 a.m. the investigating officers had decided to charge the appellant in relation to the home invasions. He was not, however, told of this change in circumstances until several hours later.
[8] In the meantime, at 11:20 a.m., seven hours after the arrest, Silva was questioned about the location of the firearm. He refused to tell the police anything. After he returned to his cell Silva spoke to the appellant about the questioning and made incriminating remarks. While the appellant’s responses were somewhat equivocal, they could be interpreted as implicating him in the home invasion. The conversation was overheard by one of the investigating officers who took notes of the conversation.
[9] At about 11:45 a.m., the police again spoke to the appellant and told him that he was being charged with the robbery and firearms offences. The officer did not attempt to question the appellant about the offences. Finally, at 1:20 p.m., over nine hours after his arrest, the appellant was allowed to use the telephone.
[10] The co-accused Silva challenged the admissibility of statements he made to the police on the basis of s. 10(b) of the Charter. The trial judge found that Silva’s s. 10(b) rights had been violated. In the course of that ruling she rejected the Crown’s submission that delay in giving Silva access to counsel was justified because of the ongoing investigation, including the problem of the missing firearm. She said:
I accept public safety, an ongoing investigation and preservation of evidence as valid reasons for the denial of other telephone calls but there was no evidence given that would establish them as having any basis for the denial of the right to counsel. There is nothing in the statement taken by Detective Constable Baker which discloses an urgent need to further the investigation or to preserve evidence. The questioning simply requests the chronology of the evening’s events. [Emphasis added.]
[11] Accordingly, the trial judge excluded Silva’s statements to the police.
[12] However, the trial judge admitted the statements made by the appellant and Silva to each other in the cells. Her reasons with respect to admissibility of the conversation dealt only with s. 7 of the Charter. She found that the remarks in the cells were not elicited by the police within the meaning of R. v. Hebert (1990), 1990 CanLII 118 (SCC), 57 C.C.C. (3d) 1 (S.C.C.). She rejected the defence submission that the questioning of Silva and then returning him to the cells was a ploy to try and get the appellant and Silva to talk about the robbery. She also noted that the appellant and Silva had both been told that areas of the police station were under surveillance. Silva was re-advised of this only a short time before he was returned to the cells and had the incriminating conversation with the appellant.
ANALYSIS
(1) Right to Counsel
(a) Whether the appellant is precluded from arguing a breach of s. 10(b)
[13] Counsel for the Crown submits that the appellant should not be allowed to argue that his right to counsel was infringed because that issue was not argued before the trial judge. I agree that the primary submission centred on s. 7 of the Charter and that the right to counsel issue was mentioned only in passing. This is not a case, however, where objection to the admissibility of evidence is raised for the first time on appeal. At trial, the appellant expressly argued that his statements were inadmissible because they were obtained in violation of the Charter. There is no suggestion that the failure to expressly rely upon s. 10(b) was a tactical decision. There is also no suggestion that the Crown was in any way prejudiced in the sense that different or additional evidence might have been called. Both the Crown and defence relied upon the same evidence.
[14] Further, counsel for the co-accused Silva expressly raised the violation of his client’s s. 10(b) rights as a basis for excluding the conversation in the cells. In her reply submissions, counsel for the Crown at trial clearly assumed that s. 10(b) was a live issue with respect to both the accused in relation to the jail cell conversation. Finally, in the course of submissions, the trial judge at one point summarized some of the Charter arguments and stated her understanding was that the accused were arguing that “the denial of the right to counsel was sufficient to taint the circumstances in which the otherwise admissible conversation between [the] two accused was held”.
[15] In my view, the appellant is not precluded from relying upon violation of his s. 10(b) rights.
(b) Reasonable opportunity to exercise the right to counsel without delay
[16] In my view, the appellant’s right to counsel as guaranteed by s. 10(b) of the Charter was infringed. In R. v. Manninen (1987), 1987 CanLII 67 (SCC), 34 C.C.C. (3d) 385 at 391-92, the Supreme Court of Canada held that s. 10(b) imposes at least two duties on the police in addition to the duty to inform the detainee of the right to counsel. First, the police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay. On the trial judge’s findings, the police did not carry out this duty. She rejected the explanation that it was reasonable to withhold access to counsel because of the ongoing investigation. Although that finding was made expressly in relation to the co-accused Silva, the appellant’s circumstances would not lead to a different result.
(c) Police duty to cease questioning or otherwise attempting to elicit evidence
[17] The appellant submits that there was a further violation of s. 10(b) because the police failed to carry out the other duty recognized in Manninen: to “cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel”. The appellant relies on this court’s decision in R. v. McKenzie (2002), 2002 CanLII 45009 (ON CA), 167 C.C.C. (3d) 530. In that case, Moldaver J.A. found that while there was no direct questioning of the accused by the police, their conduct amounted to eliciting within the meaning of Manninen. He provided this explanation of the word “elicit” at para. 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.
[18] Moldaver J.A. went on to apply this test and found, at paras. 35-36, that the conduct in that case “amounted to the functional equivalent of an interrogation” and “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”. He therefore found that the accused’s rights had been infringed.
[19] While Moldaver J.A. in McKenzie set out the broad test of asking whether there is a “causal link” between the police conduct and the making of the statement, it is apparent from the subsequent discussion that a causal link is not sufficient to constitute elicitation. Rather, the court must have regard to a number of factors to decide the issue. Thus, at para. 29, Moldaver J.A. refers to R. v. Broyles (1991), 1991 CanLII 15 (SCC), 68 C.C.C.(3d) 308, where the Supreme Court of Canada dealt with elicitation in the context of s. 7 of the Charter and the use of police agents to obtain incriminating statements from a detainee. In Broyles at p. 321, Iacobucci J. listed several factors a court should consider in determining whether there was a causal link between the conduct of the state agent and the making of the statement:
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 state 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.]
[20] While Moldaver J.A. observed in McKenzie that these factors do not fit precisely into the s. 10(b) analysis, they provide a helpful guide in approaching the elicitation issue in the Manninen context.
[21] Having regard to the findings of the trial judge in this case, I am satisfied that there was no elicitation. The questioning of the co-accused Silva was done in good faith by the police in an attempt to locate a dangerous weapon and was not a ploy. In those circumstances, although the police unquestionably hoped that Silva and the appellant might talk, at least about the weapon, it cannot be said that the conduct of the police in placing the two suspects in adjoining cells and deciding to attempt to overhear the conversation was the functional equivalent of an interrogation. There was no special relationship between the police and Silva and the appellant. Throughout, the appellant and Silva had an accurate perception of the situation, knowing that they were having a conversation in a jail after being warned that they were under surveillance. The investigating officers did not attempt to manipulate the appellant in the sense referred to in Broyles.
[22] Accordingly, while there was a breach of the appellant’s right to consult counsel, there was not a further breach of the duty of the police to refrain from attempting to elicit incriminating information before affording him the opportunity to consult counsel.
(2) Exclusion of Evidence
[23] In view of the finding that the police breached the appellant’s s. 10(b) rights by not providing him with the opportunity to consult counsel without delay, it is necessary to consider whether the evidence should be excluded under s. 24(2) of the Charter. Since the trial judge did not deal with this aspect of s. 10(b), we do not have the benefit of her analysis of s. 24(2). However, I am satisfied that there is sufficient material in the record for this court to determine the s. 24(2) issue. For the following reasons, I am satisfied that the evidence is inadmissible.
(a) Obtained in a manner that infringed the appellant’s s. 10(b) rights
[24] While I have found that the police did not elicit the conversation in violation of s. 10(b), the conversation was “obtained in a manner” that infringed the appellant’s s. 10(b) rights as that phrase was explained R. v. Strachan (1988), 1988 CanLII 25 (SCC), 46 C.C.C. (3d) 479 (S.C.C.). In most cases, a temporal connection will suffice to meet the “obtained in a manner” requirement. Dickson C.J.C. approved the following characterization at p. 495:
It is sufficient if the infringement or denial of the right or freedom has preceded, or occurred in the course of, the obtaining of the evidence. It is not necessary to establish that the evidence would not have been obtained but for the violation of the Charter.
[25] There is a very close temporal connection between the violation that occurred in this case and the obtaining of the evidence. In fact, the violation of the s. 10(b) right was a continuing one, as the appellant had repeatedly asserted his right to counsel. Accordingly, it is necessary to apply the test set out in R. v. Collins (1987), 1987 CanLII 84 (SCC), 33 C.C.C. (3d) 1 (S.C.C.) as explained in R. v. Stillman (1997), 1997 CanLII 384 (SCC), 113 C.C.C. (3d) 321 (S.C.C.)
(b) Trial fairness
[26] The first issue under the Collins/Stillman analysis is whether admissibility of the evidence would affect the fairness of the trial. In the circumstances of this case, that depends upon whether the appellant was compelled or conscripted to incriminate himself. In Stillman, Cory J. put the matter this way at para. 98:
Thus, it can be seen that the admission of evidence, which was obtained following the breach of an accused's Charter rights resulting in the accused being compelled or conscripted to incriminate himself by a statement or the use as evidence of his body or bodily substances will, as a general rule, be found to render the trial unfair.
[27] The terms “compelled” and “conscripted” have been given broad meanings and do not require conduct amounting to coercion. Thus, even a voluntary confession to a person in authority has been held to have been compelled or conscripted: see the discussion by Steel J.A. in R. v. Dolynchuk (2004), 2004 MBCA 45, 184 C.C.C. (3d) 214 (Man. C.A.) at paras. 63-72. On the other hand, cases such as R. v. Fliss (2002), 2002 SCC 16, 161 C.C.C. (3d) 225 (S.C.C.) and R. v. Wijesinha (1995), 1995 CanLII 67 (SCC), 100 C.C.C.(3d) 410 (S.C.C.), have held that surreptitiously recorded conversations between an accused and an undercover officer are not compelled or conscripted where the accused is not detained at the time of the recording.
[28] Not without some hesitation, I am satisfied that although this appellant was detained at the time of his conversation with Silva, he was not compelled or conscripted into incriminating himself. I make that finding based on the following circumstances:
- The trial judge found that the police conduct was not a ploy.
- The appellant was aware that he was under surveillance.
- The appellant freely volunteered his remarks to someone he knew and who was not a police agent.
- The police had not attempted to elicit evidence from the appellant by questioning him prior to the conversation with Silva.
[29] Accordingly, in my view, the admission of the conversation would not affect the fairness of the trial as that principle is explained in Stillman.
(c) Seriousness of the breach
[30] The next set of Collins factors to consider are those dealing with the seriousness of the breach. Courts have tended to deal with the seriousness of the breach by looking at the nature of the state conduct and the nature of the protected interest. When dealing with the breach of s. 10(b) in relation to Silva’s statements to the police, the trial judge found that the delay in affording him his right to counsel could not be justified. The same considerations apply to the appellant. Thus, this violation of the appellant’s rights was not mitigated by urgency or necessity.
[31] There was some suggestion that the delay was justifiable for reasons of officer safety because the appellant threatened one of the officers. I am unable to understand how this threat could justify denying the appellant, who was in custody, access to counsel.
[32] The violation of the appellant’s right to counsel was also not an isolated one. In addition to the s. 10(b) violation, the police failed to comply with their duty under s. 10(a) to inform the appellant promptly of the reasons for his detention. The police had decided to also charge the appellant in relation to the home invasion by at least 9:05 a.m., but they did not inform the appellant of the true nature of his jeopardy until 11:45 a.m., after his conversation with Silva.
[33] Somewhat mitigating the seriousness of the violation is that the conversation took place in a cell block, where there is a reduced expectation of privacy. Further, as was noted in Fliss at para. 85, the appellant’s act of volunteering these statements indicates a low expectation of privacy. That said, this was a serious violation of the right to counsel. The appellant asserted his right repeatedly, and the purpose of the right to counsel is to give the detainee an opportunity to obtain information as to how to exercise the right to silence. It is reasonable to assume that competent counsel would have advised the appellant that he should not speak to other prisoners, even his companion Silva.
(d) Repute of the administration of justice
[34] The third set of Collins factors consider whether exclusion of the evidence would bring the administration of justice into disrepute. These were serious offences. On the other hand, this conversation was not a crucial element of the Crown’s case. Even without the conversation, the Crown had a strong circumstantial case. The appellant was known to the victim, he had a motive to commit the offence, and he was found in possession of some of the victim’s goods. In addition, his manner of driving and the attempt by him or his companions to dispose of the goods from the car was compelling evidence of consciousness of guilt.
[35] Further, this violation strikes at core values underlying the administration of justice: the right to advice from counsel within a reasonable time so as to exercise the right to silence with knowledge of one’s real jeopardy. On balance, it seems to me that the administration of justice would be brought into greater disrepute if the evidence was admitted, notwithstanding I have found that its admission would not affect the fairness of the trial.
(3) Application of the Curative Proviso
[36] The prosecution case was very strong. However, since the trial judge was not prepared to rely upon the identification evidence from the victim, the case turned on circumstantial evidence including any inferences that could be drawn from the police cell conversation. The trial judge made reference to that conversation in finding that the Crown had established a strong circumstantial case. More importantly, Crown counsel made very effective use of that conversation in cross-examining the appellant. Had that conversation been excluded at trial it would not have been available to the Crown for that purpose: see R. v. Calder (1996), 1996 CanLII 232 (SCC), 105 C.C.C. (3d) 1 (S.C.C.).
[37] I am not satisfied that this is an appropriate case to apply the proviso in s. 686(1)(b)(iii) of the Criminal Code, as it is possible that a trier of fact would have a reasonable doubt as to the appellant’s guilt if the evidence in question were removed from his or her consideration: see Broyles v. The Queen (1991), 1991 CanLII 15 (SCC), 68 C.C.C. (3d) 308 (S.C.C.) at 328.
(4) The Browne v. Dunn Issue
[38] The appellant’s other ground of appeal concerns the application of the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.). In view of my conclusion on the Charter issue, it is not strictly necessary to deal with this issue and I will only make brief comments. The appellant argues that the trial judge was in error in finding that much of the appellant’s story was never put to Crown witnesses and, in any event, she ought not to have applied the rule in the circumstances. I do not agree.
[39] The trial judge rejected the appellant’s evidence because it appeared contrived and was inconsistent with the circumstantial case, including the jail cell conversation. A review of the appellant’s testimony supports that view. The appellant would add new facts as he was questioned, especially in cross-examination. The rule in Browne v. Dunn played a relatively minor part in the trial judge’s reasoning. I am satisfied that the trial judge did not misapply that rule.
(5) The Sentence Appeal
[40] The sentence appeal relates only to the charges of obstructing justice and threatening, and was contingent on this court ordering a new trial on the offences relating to the home invasion. After giving three years credit for pre-trial custody, the trial judge imposed a global sentence of four years for all the offences except possession of a firearm while prohibited, for which she imposed a sentence of one year imprisonment consecutive. A sentence of four years is excessive for the obstructing justice and threatening charges, which relate to the appellant’s subsequent encounters with the police. I would grant leave to appeal sentence and reduce the sentence for those two offences to nine months imprisonment.[^1]
DISPOSITION
[41] Accordingly, I would allow the appeal from conviction for the offences relating to the home invasion, set aside the convictions and order a new trial before a judge and jury pursuant to s. 686(5)(a) of the Criminal Code. I would set aside the conditional stay of proceedings on the counts that were stayed pursuant to the Kineapple principle and order a new trial before a judge and jury on those counts.[^2] I would grant leave to appeal from sentence on the charges of obstructing a police officer in the execution of his duty and threatening and reduce the sentence on both offences from four years imprisonment to nine months imprisonment on each count concurrent.
Signed: “M. Rosenberg J.A.”
“I agree J. C. MacPherson J.A.”
“I agree Janet Simmons J.A.”
RELEASED: “MR”
APPENDIX
DISPOSITION
I would make the following disposition of the appeal from conviction and sentence:
Count #1 Break and enter and commit theft Appellant convicted at trial and sentenced to 4 years imprisonment Appeal allowed, conviction set aside and new trial before judge and jury ordered
Count #4 Masked with intent Appellant convicted at trial and sentenced to 4 years imprisonment concurrent Appeal allowed, conviction set aside and new trial before judge and jury ordered
Count #6 Robbery while armed with firearm Appellant convicted at trial and sentenced to 4 years imprisonment concurrent Appeal allowed, conviction set aside and new trial before judge and jury ordered
Count #8 Assault causing bodily harm Appellant convicted at trial and sentenced to 4 years imprisonment concurrent Appeal allowed, conviction set aside and new trial before judge and jury ordered
Count #9 Assault while using an imitation handgun Appellant found guilty but conviction stayed pursuant to Kienapple doctrine Stay set aside and new trial before judge and jury ordered
Count #10 Possession of weapon for purpose of committing an offence Appellant found guilty but conviction stayed pursuant to Kienapple doctrine Stay set aside and new trial before judge and jury ordered
Count #15 Possession of firearm without a licence Appellant convicted at trial and sentenced to 4 years imprisonment concurrent Appeal allowed, conviction set aside and new trial before judge and jury ordered
Count #19 Occupant of vehicle knowing there was a firearm Appellant found guilty but conviction stayed pursuant to Kienapple doctrine Stay set aside and new trial before judge and jury ordered
Count #20 Possession of firearm while prohibited Appellant convicted at trial and sentenced to 1 year imprisonment consecutive Appeal allowed, conviction set aside and new trial before judge and jury ordered
Count #22 Possession of stolen goods Appellant found guilty but conviction stayed pursuant to Kienapple doctrine Stay set aside and new trial before judge and jury ordered
Count #24 Obstructing police officer in execution of duty Appellant convicted at trial and sentenced to 4 years imprisonment concurrent Appeal from conviction dismissed, leave to appeal sentence granted and sentence reduced to nine months imprisonment
Count #26 Threatening Appellant convicted at trial and sentenced to 4 years imprisonment concurrent Appeal from conviction dismissed, leave to appeal sentence granted and sentence reduced to nine months imprisonment concurrent
[^1]: The appellant did not ask us to take into account any of the pre-trial custody in fixing the sentence on these two offences and accordingly, I have not done so.
[^2]: See the Appendix for a detailed break down of the disposition.