R. v. Badgerow, 2008 ONCA 605

CITATION: R. v. Badgerow, 2008 ONCA 605

DATE: 20080905

DOCKET: C40866

COURT OF APPEAL FOR ONTARIO

ROSENBERG, SIMMONS and LAFORME JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

And

ROBERT BADGEROW

Appellant

P. Andras Schreck and Apple Newton-Smith, for the appellant

Susan G. Ficek, for the respondent

Heard: February 21, 2008

On appeal from the conviction entered by Justice Thomas R. Lofchik of the Superior Court of Justice on April 13, 2001.

SIMMONS J.A.:

I. Overview

[1] On April 13, 2001, the appellant was convicted of the first-degree murder of Diane Werendowicz by Lofchik J. sitting with a jury. Ms. Werendowicz’s body was found in a ravine in Stoney Creek on June 20, 1981. She was lying face down in a creek with a tire over her head and her purse strap wrapped around her neck. Pathologists confirmed the cause of her death as strangulation and drowning. Forensic testing revealed the presence of semen on her jeans and in her vagina.

[2] Ms. Werendowicz’s murder remained unsolved for many years. In 1997, a police task force was formed to investigate a number of unsolved crimes that had taken place in the same ravine. As a result of scientific advances, DNA profiling was then available and the Centre for Forensic Sciences was able to extract a DNA profile from the semen found at the scene of the murder. The police sought DNA samples from several suspects, including the appellant. Forensic testing on a discarded sample from the appellant confirmed that his DNA matched the DNA profile of the semen found on Ms. Werendowicz’s body.

[3] The appellant was arrested for the murder of Ms. Werendowicz and another serious offence on December 1, 1998. Following his arrest, he gave a videotaped statement to the police in which he denied knowing or recognizing the deceased or having any involvement in her murder. On being informed that the police had a DNA match, the appellant said he did not have an explanation and it would be up to his lawyer to answer any more questions.

[4] At trial, the Crown alleged that the appellant sexually assaulted the deceased in the ravine, strangled her with her purse, and drowned her in the creek. Among other things, the Crown relied on the DNA evidence, an audiotape of a 911 call made two days after the murder in which the caller provided details of the murder that were not widely known, the evidence of several witnesses who identified the appellant’s voice as that of the 911 caller, and the appellant’s statement to the police in which he denied any relationship with the deceased, an apparent fabrication.

[5] The appellant testified at trial and claimed that he had consensual sex in 1981 with a female stranger he met in the parking lot of a bar near the ravine. He said that he and the woman smoked a joint in his truck and then had sex. According to the appellant, he never saw the woman again after she left his truck. The appellant denied being in the ravine with the deceased, killing her, or placing the 911 call.

[6] Although he said he did not know the identity of the woman with whom he had sex until he was told about the DNA match, the appellant acknowledged putting “two and two together through the reports in the newspaper”. He said he did not provide this explanation in his statement to the police because he did not think they would believe him.

[7] The appellant called several witnesses at trial who testified that it was not the appellant’s voice on the 911 tape.

[8] The appellant raises four issues on appeal:

i) the trial judge erred in failing to exclude the appellant’s statement to the police based on ss. 10(b) and s. 24(2) of the Canadian Charter of Rights and Freedoms;

ii) the conduct of Crown counsel at trial was improper;

iii) the trial judge erred in his instructions to the jury concerning voice identification evidence; and

iv) the trial judge erred in his instructions to the jury concerning the burden of proof.

[9] In my view, the first issue raised by the appellant is dispositive of the appeal. It is therefore not strictly necessary that I deal with the remaining issues raised by the appellant. That said, I consider that it would have been preferable had the trial judge provided the jury with further instructions concerning the specific frailties of the voice identification evidence that was led in this case and had he not given the impugned instruction concerning the burden of proof. I consider it unnecessary to comment on the second ground of appeal.

II. Analysis

i) Did the trial judge err in failing to exclude the appellant’s statement to the police?

a) Introduction

[10] Following his arrest, the appellant asked to speak to a specific lawyer, Neil Jones. When he was unable to reach Mr. Jones, he attempted to contact two other lawyers and eventually spoke to one of Mr. Jones’s partners. After a brief telephone conversation with the partner, the appellant told the arresting officer that he had instructed the partner to keep trying to get in touch with Mr. Jones. On being asked by the arresting officer if he was satisfied he had spoken to counsel, the appellant said yes, but asked if he could make another call. The arresting officer refused and proceeded to interview the appellant.

[11] The main issue concerning this ground of appeal is whether the trial judge erred in failing to find that the appellant’s s. 10(b) Charter rights were breached because he was not afforded a reasonable opportunity to contact counsel of his choice.

b) The evidence on the voir dire

[12] The appellant was arrested shortly before 6 p.m. on December 1, 1998 in what is described as a “high-risk takedown”. Unmarked police cars boxed in the appellant’s vehicle while he was driving, ordered him from the vehicle at gunpoint, and handcuffed him while he was kneeling on the street. The appellant was turned over to Staff Sergeant Hrab, who accompanied him in a police car as he was transported to the police station.

[13] Staff Sergeant Hrab began audiotaping what was taking place as soon as he entered the police car. He advised the appellant of the charges against him, cautioned him and advised him of his right to counsel. In this respect, Staff Sergeant Hrab said:

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, in private, any lawyer you wish. You also have the right to free advice, in private, from a Legal Aid lawyer. If you are charged with any offence, you may apply to the Ontario Legal Aid Plan for legal assistance. The number is … and this is a toll free number that will put you in contact with Legal Aid Duty Counsel for legal, free legal advice right now. Do you understand?

[14] The appellant indicated he did not wish to say anything in answer to the charge. When asked if he wanted to contact a lawyer, the appellant said yes. When asked if he had a particular lawyer in mind, he provided the name “Art Jones” of Mackesy, Smye, Grilli and Jones.

[15] The appellant arrived at the police station at about 6:10 p.m. On arrival, he was strip searched and placed in an interview room. Staff Sergeant Hrab returned to the interview room at about 6:40 p.m. and began assisting the appellant with the process of contacting counsel. Soon after Staff Sergeant Hrab entered the room, the appellant clarified that his lawyer’s name was Neil Jones. Staff Sergeant Hrab located Mr. Jones in the telephone book and, at the appellant’s request, dialled the lawyer’s home number.

[16] As Staff Sergeant Hrab was placing a call to Mr. Jones’s home, the appellant asked if he got only one call. Although the transcript of the conversation indicates Staff Sergeant Hrab responded, “[w]ell uh”, Staff Sergeant Hrab testified that he gave a non- verbal response (“mm-hmm”) as he was listening to the answering machine, meaning that the appellant was not limited to just one call.

[17] Staff Sergeant Hrab left a message on Mr. Jones’s home answering machine with his name, the time, and the number for the telephone he was using, located in the corridor outside the interview room where the appellant was detained. Staff Sergeant Hrab then tried Mr. Jones’s office number but got no answer. Staff Sergeant Hrab asked the appellant if he would like to call another lawyer and the appellant responded “David Smye”.

[18] Staff Sergeant Hrab telephoned Mr. Smye’s home number and a woman answered. Staff Sergeant Hrab told her that he had a gentleman who wished to speak with Mr. Smye or Mr. Jones and asked if she knew how he could reach either of them. The woman responded that she did not know. Staff Sergeant Hrab left his name and the corridor telephone number. In response to a question, he gave the woman the appellant’s name.

[19] Staff Sergeant Hrab informed the appellant that Mr. Smye was not home and asked if there was anyone else he wished to call. The appellant responded “Pat Mackesy”. After checking the directories for various cities, Staff Sergeant Hrab placed a call to Mr. Mackesy’s home. The portion of this conversation recorded on the audiotape is as follows:

Staff Sergeant Hrab: Mr. Mackesy, it’s Staff Sergeant Steve Hrab calling from the Hamilton-Wentworth Regional Police. Uh I’m here at Central Police Station with a gentleman by the name of Robert Badgerow. Uh he’s presently in our custody and he would like to speak with you. Uh if you give us a moment, uh we’ll get out of the room and I’ll give him some privacy to talk to you. Alright? Thank you. Hang on for a second. Let us get out of the room here and uh close the door and like I say when you’re done, just give a rap on the door.

Detective Petkoff: inaudible

(pause)

Detective Petkoff: 628-6938

(knocking sound)

Staff Sergeant Hrab: inaudible

Detective Petkoff: He’s in 653.

Staff Sergeant Hrab: Uh, Mr. Mackesy. Hi, yes, who’s this? (short period of silence) Mr. Pat Mackesy. Can you give me (inaudible) Mr. Mackesy? Alright. Then that’s it? (short period of silence) Mr. Mackesy? Oh hi. Uh Mr. Badgerow just handed me the phone back. Okay. Um alright. Thank you. Bye. Okay uh, I, I don’t have an understanding here. Hang on a second. You’ve just spoken with Mr. Mackesy?[^1]

The appellant: Correct.

Staff Sergeant Hrab: Okay. Um he’s a lawyer from the firm of Mackesy, Smye?

The appellant: Turnbull, Grilli.

Staff Sergeant Hrab: Okay and uh you’ve explained to him why you’re here?

The appellant: My instructions to him were to keep getting in touch, if could get in touch with uh Mr. Jones. When he does, advise him of what’s happened and if he can get in touch with you.

Staff Sergeant Hrab: To get in touch with you? But you are happy that you have had that, an opportunity to speak with counsel now?

The appellant: Yes.

Staff Sergeant Hrab: Okay. Thank you. Alright um, I’m gonna stop taping and then shortly we’ll go into another room and do this on video. Okay?

The appellant: Is there a chance I can make another phone call at all or?

Staff Sergeant Hrab: Not right yet.

The appellant: Okay.

Staff Sergeant Hrab: Okay the time now is about uh … 18:54.

[20] A police witness confirmed that the appellant spoke to Mr. Mackesy on the telephone for about one to two minutes. In his reasons, the trial judge found that the telephone call lasted approximately 70-90 seconds.

[21] Following the appellant’s conversation with Mr. Mackesy, Staff Sergeant Hrab conducted a videotaped interview of the appellant. The appellant confirmed, at the outset of the videotaped interview, that he had spoken to Mr. Mackesy. Later, after being confronted with the fact that the police had obtained a DNA sample from something he had discarded and that his DNA matched the DNA profile of the semen found on the deceased’s body, the appellant said he did not have an explanation and that it would be up to his lawyer to answer any more questions. Although Staff Sergeant Hrab asked him why he made the 911 call, the appellant denied making the call and refused to answer further questions.

[22] In his evidence on the voir dire, Staff Sergeant Hrab confirmed that he learned in March 1997 that the appellant had retained Neil Jones in relation to a police request for a DNA sample in relation to this matter and that he also knew that Mr. Jones had indicated that if the police wished to speak to the appellant, they should contact Mr. Jones. Staff Sergeant Hrab denied defence counsel’s suggestions that Mr. Mackesy told him he was not able to give criminal legal advice or that Mr. Mackesy was going to try to get in touch with Mr. Jones.

[23] Mr. Mackesy did not have any notes of his conversation with the appellant. He explained that he had not practised criminal law since his first or second year of practice many years earlier and that it was his understanding that the appellant was calling to try to locate and get advice from Mr. Jones. Mr. Mackesy did not recall whether the appellant said he was charged with murder. Although Mr. Mackesy believed he told Staff Sergeant Hrab that he was going to try to locate Mr. Jones, he was unable to say with absolute certainty that he did so. Further, although he did not recall giving the appellant any advice, he agreed it was possible that he could have.

[24] Mr. Jones testified that he received a telephone call from Mr. Mackesy at around 7:30 p.m. on December 1, 1998, soon after arriving home. Mr. Mackesy told him the appellant had been arrested and wanted to speak to him. After listening to the message from Staff Sergeant Hrab, Mr. Jones called the corridor number at the police station but received no answer. He then tried the central police station number but was transferred to Staff Sergeant Hrab’s voicemail; he left a message and waited for a call back. At around 8:15 p.m., Mr. Jones telephoned the police station once again and was eventually put through to the appellant. Following a 10- to 15-minute conversation with the appellant, Mr. Jones advised Staff Sergeant Hrab that the appellant did not wish to make any statements.

[25] A police officer assisting with monitoring the appellant’s videotaped statement testified that he heard the corridor telephone ringing at about 7:41 p.m. on December 1, 1998 while the videotape interview was taking place. However, the officer was unable to get to the telephone in time to answer the call.

[26] The appellant did not testify on the voir dire.

c) The trial judge’s ruling concerning [s. 10(b)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[27] The trial judge rejected the appellant’s argument that his s. 10(b) Charter right to a reasonable opportunity to consult counsel of his choice was breached.

[28] Although the trial judge acknowledged that s. 10(b) of the Charter guarantees a reasonable opportunity to consult counsel of choice, he observed that the police have “no duty to ascertain whether in fact [the accused] did consult counsel or has received satisfactory advice.” Further, the trial judge concluded that, absent inquiry by an accused person who has been unable to reach counsel of choice, the police are under no obligation to advise that person that he or she may wait a reasonable time for counsel to call back before asking whether the person wishes to contact another lawyer.

[29] On the facts of this case, the trial judge was satisfied that the appellant had a reasonable opportunity to consult counsel of his choice based on five main factors:

▪ when asked if he wanted to call another lawyer after he was unable to reach Mr. Jones, the appellant named two other lawyers and eventually spoke to one of them, Mr. Mackesy;

▪ in response to a question from Staff Sergeant Hrab, the appellant confirmed that “he was happy that he had an opportunity to speak with counsel”;

▪ the appellant’s comments to Staff Sergeant Hrab about instructing Mr. Mackesy to try to contact Mr. Jones and his question about making another telephone call did not necessarily indicate that the appellant had not exercised his right to counsel in speaking to Mr. Mackesy;

▪ as the appellant did not testify on the voir dire, the trial judge could not determine what the appellant intended when he told Staff Sergeant Hrab about his instructions to Mr. Mackesy and when he asked about making another telephone call; and

▪ the similarities between the circumstances of this case and the circumstances in R. v. Mayo (1999), 1999 CanLII 2695 (ON CA), 133 C.C.C. (3d) 168 (Ont. C.A.) mandated a similar result.

[30] The trial judge accepted the principle that “[w]hat the police must do or not do so far as the exercise of a detainee’s 10(b) rights is concerned depends in part upon what the detainee says and does and what the police [know] or would readily surmise.” However, based on the foregoing factors, he concluded that it was reasonable in the circumstances for Staff Sergeant Hrab to assume the appellant had exercised his s. 10(b) rights.

[31] The key portions of the trial judge’s reasons are as follows:

Here Staff Sergeant Hrab, after the accused had spoken to Mr. Mackesy, had no way of knowing what had transpired in the brief conversation. He asked the accused whether he was happy that he had an opportunity to speak with counsel and received an affirmative reply. The fact that the accused told Hrab that his instructions to Mackesy were to continue to try to get in touch with Neil Jones, tell him what happened, and have him get in touch with Hrab does not necessarily indicate that the accused had not exercised his right to counsel in speaking with Mr. Mackesy. It could just as easily be taken to mean that he still wished to retain Mr. Jones in defence of the charges and to consult him in that regard. Similarly, the accused asking whether he could make another phone call and being refused does not necessarily lead to the conclusion that his right to counsel has been denied, because it is not known whom he wished to call in connection with that request. It could just as logically have been a request to call, for instance, his wife. We do not know the purport of the accused’s statement to Hrab or of the question as the accused did not testify on the voir dire.

I am satisfied, in all the circumstances, that the accused had been given a reasonable opportunity to exercise his section 10(b) rights to consult counsel of his choice. I find the circumstances of this case similar to the facts in R. v. Mayo (1999), 1999 CanLII 2695 (ON CA), 133 C.C.C. (3d) 168 and find that a similar result should follow.

On Hrab asking whether the accused was happy that he had spoken with counsel and receiving an affirmative answer, it was reasonable for him to assume that the accused had exercised his 10(b) rights.

d) Discussion – [s. 10(b)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[32] On the facts of this case, in my view, the trial judge’s reliance on R. v. Mayo was misplaced. Moreover, the trial judge’s finding that Staff Sergeant Hrab was entitled to assume that the appellant had exercised his s. 10(b) Charter rights was unreasonable. On my review of the record, the evidence in this case points inevitably to the conclusion that the police breached the appellant’s s. 10(b) rights by failing to give him a reasonable opportunity to consult counsel of his choice and by failing to hold off in questioning him until he had been given that opportunity.

[33] In R. v. Mayo, the accused was arrested and charged with a second count of sexual assault after he had already retained counsel on a previous charge. When asked on his arrest for the second charge whether he wanted to contact a specific lawyer, the accused expressed a willingness to obtain immediate advice from legal aid duty counsel and to hear the allegations before doing so.

[34] After the accused spoke to duty counsel, the arresting officer asked, “And are you satisfied now that you’ve had proper legal instruction?” The accused responded affirmatively. When asked if he wanted to ask any questions, the accused said, “[N]ot unless I have legal advice with me.” In response to the question, “I’m sure (unintelligible) not coming in though, right?”, the accused said, “No, he said he’d get in touch with my other lawyer, or get in touch with a lawyer and then go to it from there.” The police officer proceeded to question the accused and the trial judge relied on the accused’s answers to find that he was not credible.

[35] The accused in Mayo did not raise a s. 10(b) Charter argument at trial. On appeal to this court, Rosenberg J.A. said that if the accused had asserted his right to speak to the lawyer he had already retained and had he not already spoken to legal aid, the police officer would have been obliged to hold off in questioning the accused and to provide him with a reasonable opportunity to consult counsel. However, because the accused confirmed, in response to a direct question, that he had obtained “proper legal instruction”, and because the accused was not entitled to have counsel present while he was interviewed as he requested, Rosenberg J.A. concluded the police officer was not obliged to hold off.

[36] Finally, Rosenberg J.A. indicated at para. 17 that, even if the accused’s request to have counsel present was open to two interpretations, the appellant had not established a breach of his s. 10(b) Charter rights because he did not testify on the voir dire and because “there was no other evidence to establish that he was asserting a right to proper legal advice from his counsel of choice.”

[37] In my opinion, this case is distinguishable from R. v. Mayo for several reasons. Those same reasons point to the conclusion that the trial judge’s finding that Staff Sergeant Hrab was entitled to assume that the appellant had exercised his s. 10(b) rights was unreasonable.

[38] As I have said, in Mayo, immediately after speaking to legal aid duty counsel and in response to a direct question, the accused confirmed that he was satisfied that he had obtained “proper legal instruction.” Further, to the extent that the accused’s comments may have been capable of two interpretations, there was no other evidence on the voir dire concerning what he intended.

[39] In this case, unlike the accused in Mayo, the appellant did not acknowledge being satisfied that he had obtained “proper legal instruction”. On the contrary, he acknowledged only that he had spoken to a particular lawyer. Significantly, both immediately before and immediately after acknowledging that fact, the appellant made statements that raised at least the possibility that he had not exercised his right to counsel. In addition, the fact that the appellant intended to contact Mr. Jones for the purpose of obtaining advice was confirmed in this case by the evidence of Mr. Mackesy.

[40] In particular, immediately after speaking to Mr. Mackesy, the appellant said the following in response to Staff Sergeant Hrab’s inquiry concerning whether the appellant told Mr. Mackesy why he was at the police station:

My instructions to him were to keep getting in touch, if could get in touch with uh Mr. Jones. When he does, advise him of what’s happened and if he can get in touch with you.

[41] In my opinion, six factors point to the conclusion that the only reasonable interpretation of the appellant’s comment was that he was still trying to obtain advice from Mr. Jones:

▪ the appellant was charged with a very serious offence, first-degree murder;

▪ the appellant asked to speak to Mr. Jones on being arrested;

▪ Staff Sergeant Hrab knew the appellant had retained Mr. Jones in relation to this matter previously;

▪ the appellant’s telephone conversation with Mr. Mackesy was extremely brief;

▪ the appellant made this statement in response to a question from Staff Sergeant Hrab concerning whether he told Mr. Mackesy why he was at the police station; and

▪ the appellant made this statement only minutes after Staff Sergeant Hrab had left a similar message for Mr. Jones to call Staff Sergeant Hrab.

[42] At a minimum, the appellant’s comment raised an issue concerning whether the appellant was still seeking assistance from Mr. Jones and required Staff Sergeant Hrab to clarify that issue. However, rather than asking a specific question, such as the question asked in R. v. Mayo, to clarify the appellant’s intention in that regard, Staff Sergeant Hrab asked a question calling for an obvious response that did not provide the necessary clarification:

But you are happy that you have had that, an opportunity to speak with counsel now?

[43] Given that the appellant had spoken to Mr. Mackesy, the only possible answers to this question were either yes or yes with some form of question or explanation. Although the appellant’s immediate answer was yes, he followed it up almost immediately with an inquiry concerning whether he could make a further telephone call. In these circumstances, in my view, the trial judge’s conclusion that Staff Sergeant Hrab was entitled to assume that the appellant had exercised his right to counsel is unreasonable.

[44] It is well established that the police have both informational and implementation duties in relation to s. 10(b) of the Charter. Where an accused asks to speak to a particular lawyer on arrest or detention, the police are obliged to give the accused a reasonable opportunity to exercise his or her right to counsel of choice and to hold off in questioning the accused so long as the accused is reasonably diligent in exercising the right: see, for example, R v. Bartle (1994), 1994 CanLII 64 (SCC), 92 C.C.C. (3d) 289 (S.C.C.); R. v. Manninen (1987), 1987 CanLII 67 (SCC), 34 C.C.C. (3d) 385 (S.C.C.).

[45] As the trial judge noted, there is also ample authority that what the police are required to say and do in a particular case to fulfill their duties under s. 10(b) will depend on what the accused says and does and what the police could reasonably surmise in the circumstances: see, for example, R. v. Ross (1989), 1989 CanLII 134 (SCC), 46 C.C.C. (3d) 129 (S.C.C.); R. v. Tremblay (1987), 1987 CanLII 28 (SCC), 37 C.C.C. (3d) 565 (S.C.C.); R. v. Top (1989), 1989 ABCA 98, 48 C.C.C. (3d) 493 (Alta. C.A.).

[46] Although the police cannot be expected to be mind readers, they are not entitled to ignore statements by an accused that raise a reasonable prospect that the accused has not exercised his or her s. 10(b) rights. Rather, where an accused makes such a statement, the police must be diligent in ensuring that an accused has a reasonable opportunity to exercise his or her rights, and may not rely on answers to ambiguous questions as a basis for assuming that an accused has exercised his or her rights.

[47] On the facts of this case, in my view, the exchange between the appellant and Staff Sergeant Hrab points clearly to the inference that the appellant had not exercised his right to counsel of choice and was still seeking assistance from his own lawyer. Moreover, the fact that the appellant had been subjected to a high-risk takedown within the past hour was a relevant consideration for Staff Sergeant Hrab to bear in mind in interpreting the appellant’s comments. At a minimum, the foregoing exchange required that Staff Sergeant Hrab obtain explicit confirmation concerning whether the appellant had exercised his right to counsel of choice before questioning him.

[48] This was not a situation where there was any urgency in the police interviewing the appellant. The offence was many years old and there was no evidence of any pressing issues requiring an immediate interrogation. Given this context, it was not unreasonable for the appellant to ask for a further opportunity to contact his counsel of choice.

[49] Moreover, unlike R. v. Mayo, in this case there was evidence on the voir dire concerning the appellant’s intentions. Although Mr. Mackesy was unsure in his evidence about various details of his brief conversation with the appellant, he was quite clear in stating that the appellant wanted him to find Mr. Jones and to have Mr. Jones get in touch with the appellant. Further, although the trial judge seemed to attach some significance to Mr. Mackesy’s inability to swear that he had not advised the appellant to remain silent, Mr. Mackesy was also clear in indicating that he did not perceive his role as being to give advice to the appellant.

[50] In my view, the possibility that Mr. Mackesy may have told the appellant not to say anything is irrelevant to the issue of whether the appellant’s s. 10(b) rights were breached. The right to seek advice from counsel of choice on arrest or detention is not limited to receiving perfunctory advice to keep quiet. Rather, it entitles an accused to obtain sufficiently meaningful advice to enable him or her to make an informed choice concerning whether to exercise his or her right to silence: see R. v. Hebert (1990), 1990 CanLII 118 (SCC), 57 C.C.C. (3d) 1 (S.C.C.).

[51] Even if Mr. Mackesy volunteered brief advice to the appellant along the lines of keep quiet, the appellant was well within his rights to continue to assert his right to consult counsel of his choice and to enlist Mr. Mackesy’s help in finding him. In all of the circumstances, in my view, Staff Sergeant Hrab breached the appellant’s s. 10(b) rights by interviewing the appellant before giving him a reasonable opportunity to consult with counsel of his choice.

e) Discussion – [s. 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[52] In his ruling, the trial judge went on to make an alternative finding that even if the appellant’s s. 10(b) Charter right was breached, the appellant’s statement to the police should not be excluded under s. 24(2) of the Charter. The trial judge focussed on the question of the seriousness of the breach, found Staff Sergeant Hrab had acted in good faith, and concluded that the appellant’s statement should not be excluded.

[53] Given that the trial judge did not find a s. 10(b) Charter breach, his ruling under s. 24(2) of the Charter is not entitled to deference: R v. Clayton (2005), 2005 CanLII 16569 (ON CA), 194 C.C.C. (3d) 289 (Ont. C.A.), at para. 69, reversed on other grounds (2007), 2007 SCC 32, 220 C.C.C. (3d) 449 (S.C.C.).

[54] Based on the s. 10(b) Charter breach that I have found and an analysis of the Collins[^2] factors, in my view, the evidence of the appellant’s statement to the police should have been excluded.

[55] The appellant’s statement to the police was conscriptive evidence within the meaning of R. v. Stillman (1997), 1997 CanLII 384 (SCC), 113 C.C.C. (3d) 321 (S.C.C.). In Stillman, at para. 73, Cory J. said the admission of conscriptive evidence will “generally tend to render the trial unfair.” Although subsequent courts have indicated that a finding that evidence is conscriptive does not create an automatic rule of exclusion (see, for example, R. v. Elias; R. v. Orbanski (2005), 2005 SCC 37, 196 C.C.C. (3d) 481 (S.C.C.); R. v. Grant (2006), 2006 CanLII 18347 (ON CA), 209 C.C.C. (3d) 250 (Ont. C.A.), leave to appeal to S.C.C. granted [2007] S.C.C.A. No. 99), I see nothing in this case that would diminish the deleterious effects of the breach on trial fairness.

[56] Because the appellant was not afforded a reasonable opportunity to consult with counsel of his choice prior to making a statement to the police, he was deprived of the opportunity to obtain proper advice that would have allowed him to make an informed choice about whether to speak to the police. This is not a case in which it is obvious that the appellant was intent on making a statement; nor is it a case in which the reliability of the conscriptive evidence somehow obviates the impact on trial fairness of admitting the statement.

[57] Even assuming that the trial judge’s finding of police good faith would remain in the face of my other conclusions, in my view, the nature of the breach and its impact on trial fairness mandates exclusion of the appellant’s statement.

III. Disposition

[58] Based on the foregoing reasons, I would allow the appeal, set aside the appellant’s conviction, and order a new trial.

RELEASED: September 5, 2008 “MR”

“Janet Simmons J.A.”

“I agree Marc Rosenberg J.A.”

“I agree H.S. LaForme J.A.”

[^1]: In his evidence, Staff Sergeant Hrab identified some inaccuracies in this portion of the transcript of the audiotape and suggested some amendments. In giving his reasons, the trial judge adopted Staff Sergeant Hrab’s suggestions. This transcription reflects the trial judge’s findings.

[^2]: R. v. Collins (1987), 1987 CanLII 84 (SCC), 33 C.C.C. (3d) 1 (S.C.C.).