COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fuller, 2012 ONCA 565

DATE: 20120831

DOCKET: C53172

Winkler C.J.O., Laskin and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Matthew Fuller and Alex White

Respondents

Donna Polgar, for the appellant

Robert C. Sheppard, for the respondents

Heard: April 5, 2012

On appeal from the acquittals entered on December 21, 2010 by Justice John L. Getliffe of the Ontario Court of Justice.

Laskin J.A.:

A. introduction

[1] The police executed a search warrant at the house where the respondents, Matthew Fuller and Alex White, lived. Both admitted to the police that they had marijuana and magic mushrooms stashed in a safe in the basement. They were arrested and charged with possession and possession for the purpose of trafficking.

[2] At trial, they claimed a breach of their right to counsel under s. 10(b) of the Charter. The trial judge found a breach, excluded the respondents’ statements to the police and acquitted both of them. In his ruling, the trial judge held that “while rights to counsel were given in some fashion … there was no implementation afforded”.

[3] On its appeal, the Crown advances three submissions:

(1) the trial judge erred in law in holding that the implementation component of the s. 10(b) right had been breached because there was no evidence that either respondent had requested counsel;

(2) the trial judge erred in law by excluding the respondents’ statements under s. 24(2) of the Charter without any analysis; and

(3) the trial judge erred by dismissing the charges without hearing from the Crown.

[4] I agree with the Crown’s first submission. It is therefore not necessary to consider the Crown’s other two submissions. I would allow the appeal, set aside the acquittals and order a new trial.

B. backgrouND facts

(a) The Police Investigation

[5] Project Ulverston was a longstanding joint forces investigation of the OPP, RCMP and London Police Service. The investigation led police to believe that four suspected drug dealers were living at 238 Sherwood Avenue in London, Ontario. Neither Fuller nor White was one of the four suspects.

(b) The Execution of the Warrant

[6] The police obtained a warrant to search 238 Sherwood Avenue and executed the warrant in the middle of the night. The house had an elevated main floor and a basement. On the main floor were four bedrooms, one of which belonged to Fuller. A fifth bedroom, in the basement, belonged to White. These five bedrooms, together with a kitchen, living room and two bathrooms on the main floor were rented out as a single tenancy unit. There was a second separate tenancy unit in the basement.

[7] Four officers – Liptrott, Sutherland, Irwin and Halfpenny – executed the warrant at about 3:40 a.m. The respondents were sleeping. On entering the house, Liptrott, the lead investigator, smelled a strong odour of marijuana and saw a bong on the kitchen table.

(c) Section 10(b) Rights

(i) Fuller

[8] There were four occupants on the main floor. One was Fuller. They were detained in the living room. At about 3:45 a.m. Liptrott told all four that they were under arrest or being detained for conspiracy to possess marijuana for the purpose of trafficking. He then advised them of their right to counsel and he cautioned them about making statements to the officers. He gave evidence that “each of the occupants indicated that they understood both parts, and declined to call a lawyer at that time”. Liptrott said that he gave each occupant a copy of the search warrant, explained it and allowed each of them an opportunity to read it.

[9] Fuller acknowledged that he was advised of the reasons for the warrant – the police were investigating marijuana trafficking – and shown a copy of the warrant. However, he testified that he was not immediately advised of his right to counsel. He said that he was first “read his rights” in the kitchen 40 minutes after the police entered the house, which was 20 minutes after Fuller had given one of the officers the key to the safe. Fuller also said that while he was at the house, no officer informed him of his right to consult duty counsel. However, he never testified that he asked to speak to a lawyer.

[10] Eventually Fuller was taken to the police station. He acknowledged that while there, he was “reread” his right to counsel and that he was “given” his right to counsel.

(ii) White

[11] At 3:45 a.m. one of the officers, Sutherland, went downstairs and entered White’s bedroom. Sutherland gave evidence that he advised White of his right to counsel and specifically of his right to say nothing. He cautioned White about making any statement. He said that White acknowledged understanding his rights and the caution. According to Sutherland, in answer to the question “do you wish to call a lawyer now?” White answered “not now”.

[12] White, on the other hand, said that while he was at the house, he was told he was under arrest but he was not advised of his right to counsel. According to White, he was only given his right to counsel at the police station.

(d) The Respondents’ Statements

(i) Fuller

[13] Sutherland told Halfpenny that Fuller had the key to the safe. Halfpenny went upstairs and asked Fuller for the key. Halfpenny said that Fuller first denied knowing where it was but eventually produced a set of keys, which were in a desk drawer in his bedroom. Fuller told Halfpenny that the safe belonged to him and White. Halfpenny asked what was in it. Fuller said that there was “a bit of weed inside”.

(ii) White

[14] White told Sutherland that there was “just some weed and mushrooms in the closet”. Sutherland looked in the closet and saw a small safe. White told him that Fuller had the key to the safe. However, later, around 4:30 a.m., Irwin went to the basement, searched White’s bedroom, and found a set of White’s keys, one of which opened the safe.

(e) Contents of the Safe

[15] Halfpenny used Fuller’s key to open the safe. Inside he found baggies, packaging materials, a digital scale, $80, bags containing a total of 440.92 grams of marijuana, a bag containing 207.9 grams of psilocybin, and a film canister containing 9.6 grams of cannabis resin.

C. analysis

Did the trial judge err in law in holding that the respondents’ section 10(b) rights had been breached?

(a) The Legal Context

[16] Section 10(b) of the Charter provides: “everyone has the right on arrest or detention … (b) to retain and instruct counsel without delay and to be informed of that right.” The guarantee of the right to counsel in s. 10(b) of the Charter imposes three obligations on the police – the first is informational and the second and third are implementational: see R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 29:

The purposes of s. 10(b) serve to underpin and define the rights and obligations triggered by the guarantee. In Bartle, Lamer C.J. summarized these rights and obligations in terms of the duties imposed upon state authorities who make an arrest or effect a detention (p. 192). Section 10(b) requires the police

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

[17] The important point for this appeal is that the police’s implementational obligations arise only when detainees express a wish to exercise their right to counsel: see Willier, at para. 30:

The first duty is an informational duty, while the second and third duties are implementational in nature and are not triggered until detainees indicate a desire to exercise their right to counsel.

(b) The Section 10(b) Evidence

[18] The trial judge had evidence from four witnesses on whether the police complied with their obligations under s. 10(b) – particularly the implementational components of s. 10(b) – while the respondents were at 238 Sherwood Avenue: Liptrott, Fuller, Sutherland and White.

[19] Officers Liptrott and Sutherland gave their evidence by affidavit. Neither was cross-examined. The respondents, Fuller and White, testified at trial, as apparently the trial judge heard the voir dire evidence and trial evidence together. Neither side raised any concerns about the procedure that was followed. I have reviewed all of this evidence earlier. I summarize it as follows:

• Liptrott said that he advised Fuller of his right to counsel less than ten minutes after entering 238 Sherwood Avenue, that Fuller understood his rights, and that he expressly declined to call a lawyer.

• Fuller testified that he was given his right to counsel about 40 minutes after the police entered 238 Sherwood Avenue but that he was not told he could contact duty counsel if he did not have a lawyer. Fuller did not testify that he requested a lawyer.

• Sutherland gave evidence that immediately after entering White’s bedroom, he advised White of his right to counsel and cautioned him. Sutherland asked him if he wanted to call a lawyer and White said “not now”.

• White testified that while he was at 238 Sherwood Avenue, the police did not inform him of his right to counsel.

• None of the four witnesses – neither officer and neither respondent – testified that either Fuller or White indicated a desire to exercise his right to counsel.

(c) The Trial Judge’s Ruling

[20] The trial judge found a breach of s. 10(b) of the Charter. He seemed to say that the police complied with part of their obligations but not the implementational components.

I am not satisfied with respect to the right to counsel, that it was given. The reason I say that is, clearly this was a very sudden entry into these premises. The police were there for something on the order of an hour, and while rights to counsel were given in some fashion, and I am satisfied with that, it is pretty clear on everyone’s evidence that there was no implementation afforded, which is the second point that has to be covered on these matters, particularly where the police were in the premises for as long as they were.

[21] The trial judge reiterated this view later in his ruling:

It is clear on the evidence, as I understand it, that they believed they had given these young men right to counsel, but it is also clear on the totality of the evidence, that nothing was done with respect to implementation until they had been under arrest, taken to the police station and there (sic) rights were reread and then implementation offered with respect to contacting counsel.

[22] And further:

So that while I find the warrant was valid, I am not satisfied that the proper rights to counsel and implementation was afforded in the fact that there were so many police officers here. It is my view that they simply did not recognize what they had to do here, when they should have.

[23] The trial judge concluded that while the officers were acting in good faith “the rights of these young men were beached”.

[24] His s. 24(2) analysis was perfunctory at best. He excluded the respondents’ statements and, without considering the other incriminating evidence, dismissed the charges.

(d) Discussion

[25] Under s. 676(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, the Crown’s right of appeal from an acquittal on an indictable offence is restricted to “any ground of appeal that involves a question of law alone”. In R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, the Supreme Court considered the parameters of “a question of law alone” for the purpose of a Crown appeal of an acquittal. Cromwell J., writing for the court, discussed four situations. Two are relevant for this appeal. It is an error of law to make a finding of fact for which there is no supporting evidence, and it is an error of law to assess the evidence based on a wrong legal principle.

[26] With this context, I return to the trial judge’s reasons for finding a breach of s. 10(b). His reasons are not as clear as they ought to have been. He did not make express findings of credibility of either officer’s or of either respondent’s evidence. And he did not make a clear finding on whether the informational component of s. 10(b) had been met.

[27] However, on my reading of the trial judge’s reasons, implicitly he found that the police had met their informational obligation under s. 10(b) – they told Fuller and White of their right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel. I say that for these reasons.

[28] First, the trial judge’s finding of a breach of s. 10(b) rests solely on his finding that the implementational obligations had not been met. He acknowledged that “rights to counsel were given in some fashion”. That suggests informational rights were given.

[29] Second, by finding that the respondents were at least partly advised of their right to counsel, the trial judge implicitly rejected White’s evidence that he was not advised of his right to counsel at all while he was at the house.

[30] Third, the trial judge made no finding that Liptrott or Sutherland lied in his evidence when each said he had advised Fuller and White, respectively, of their right to counsel. Indeed, I doubt such a finding would be open to the trial judge as neither officer was cross-examined.

[31] Fourth, although the trial judge did find a breach of the implementational component of s. 10(b), he did not find a breach of any part of the informational component. Therefore, implicitly, he must have rejected Fuller’s evidence that he was not told he could contact duty counsel.

[32] If my reading of the trial judge’s reasons is correct and he found that the police met their informational obligation under s. 10(b) of the Charter, then his finding that they breached their implementational obligations was an error of law. Those obligations are triggered only when a detainee indicates a desire to exercise the right to counsel. Yet, there was simply no evidence from any witness that either Fuller or White asked for a lawyer or indicated a desire to speak to one. Thus, the trial judge’s finding of a breach of the implementational component of s. 10(b) either rested on a finding of fact for which there was no evidentiary support or on the wrong legal principle that no triggering request to speak to a lawyer was necessary.

[33] On either basis, the trial judge committed an error of law in finding a breach of s. 10(b). His ruling that the respondents’ statements should be excluded therefore cannot stand.

D. conclusion

[34] On the ground that the trial judge erred in law in finding a breach of s. 10(b) of the Charter, I would allow the appeal, set aside the acquittals and order a new trial.

Released: Aug. 31, 2012 “John Laskin J.A.”

“JL” “I agree W.K. Winkler C.J.O.”

“I agree David Watt J.A.”