WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Blake, 2015 ONCA 684

DATE: 20151007

DOCKET: C58677

Feldman, MacPherson and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jomo Blake

Appellant

Amy Ohler and Lynda Morgan, for the appellant

Lorna Bolton, for the respondent

Heard: September 11, 2015

On appeal from the conviction entered on April 26, 2013 by Justice Guy P. Di Tomaso of the Superior Court of Justice, sitting with a jury.

MacPherson J.A.:

A. Introduction

[1] The appellant, Jomo Blake, was convicted of one count of sexual interference relating to a 15-year old complainant following a jury trial presided over by Di Tomaso J. of the Superior Court of Justice. During the trial, the trial judge made a ruling relating to the voluntariness of the appellant's statements to police and the sufficiency of police compliance with their obligation to inform the appellant of his right to counsel. The appellant appealed this ruling. At the conclusion of the hearing, the panel indicated that the appeal would be dismissed, with reasons to follow. These are the reasons.

B. Facts

(1) The parties and events

[2] The complainant reported that she had been sexually assaulted by the appellant, a family friend. She said that the appellant began touching her sexually when she was 13 or 14 years old. Sometimes she would babysit at the appellant's home; on a few occasions she slept over. The complainant told the police that she and the appellant had sexual intercourse during these overnight visits.

[3] Shortly after the complainant made her statement to the police, the police arrested the appellant at his workplace. When he was arrested, the appellant said "I know what this is about". He stated that he understood his right to counsel and said that he wanted to contact his wife so that she could call a lawyer.

[4] During the car ride to the police station, the appellant asked again to speak to his wife to arrange for a lawyer. Detective Constable Jason Stamp testified that his partner Detective Kevin McLean asked if the appellant or his wife had a lawyer. When the appellant said "No", Detective McLean told the appellant that he could contact duty counsel at the police station.

[5] Detective McLean did not recall that conversation but said that the appellant made a spontaneous statement in which he said: "I heard I'm not the first one. I heard her father did it to her."

[6] Detective McLean stated that, once they arrived at the station, the appellant wanted to consult with duty counsel. The booking officer noted that the appellant "wished to speak to duty counsel." The appellant arrived at the station at 1:25 p.m. and was placed in a cell. At 2:35 p.m., he was taken to a private area to speak, by telephone, to duty counsel. The conversation lasted until 2:47 p.m.

[7] Before the appellant's police interview began, the appellant's wife arrived at the police station's front desk. The appellant was told that she had arrived and he asked Detective McLean to ask his wife to contact a lawyer. Detective McLean testified that he relayed this request and, when the wife said that she didn't know any lawyers, he told her that duty counsel was available.

[8] The appellant was interviewed by Detective McLean from 4:31 p.m. to 6:17 p.m. The appellant agreed that he had been given an opportunity to speak to duty counsel. He said that he knew of the allegation against him and denied ever touching the complainant sexually.

[9] At 5:06 p.m., the appellant again asked to call his wife to get a lawyer. Detective McLean said that the appellant could call a lawyer again if he wanted to, but also told the appellant that new information had come to light (from the complainant's family) regarding assaults on the appellant's children. This line of questioning lasted for about five minutes, at which point Detective McLean said that the Children's Aid Society would be investigating the allegations the next day.

[10] Detective McLean then suggested to the appellant that this sexual contact with the complainant had been consensual. He stated: "if you had consent, then you had consent and I'm going home." At the voir dire, Detective McLean acknowledged that this statement was not true. After this line of questioning, and as Detective McLean was ending the interview, the appellant said that he wanted to go home to his wife and children and confessed to having sexual intercourse with the complainant on one occasion:

DCM: Would that … did you have consensual sex?

JB: Yes we have consensual sex.

DCM: On Saturday night.

JB: Yes.

(2) The trial judge's ruling

[11] At the trial, a blended voir dire was held to consider whether the appellant's statements to the police were voluntary and whether his rights pursuant to ss. 7, 10(a) and 10(b) of the Charter of Rights and Freedoms were violated. The trial judge ruled that the appellant's statement was voluntary and that he had not been deprived of his right to counsel.

[12] The appellant appeals these rulings.

C. Issues

[13] The appellant raises three issues on the appeal:

(1) Did the trial judge err by concluding that the appellant was not denied his right to counsel of choice under s. 10(b) of the Charter?

(2) Did the trial judge err by concluding that the appellant's s. 10(b) right to counsel was not violated when Detective McLean introduced allegations of potential child abuse into the interview with the appellant?

(3) Did the trial judge err by finding that the confession was voluntary?

D. Analysis

(1) Right to counsel

[14] The purpose of the right to counsel is to provide the accused with legal advice and to ensure that the accused understands his or her right to silence: see R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at paras. 24-26; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 38. Police have a duty to facilitate access to a lawyer immediately and that includes the right to contact counsel of choice as well as the right to contact a third party to facilitate access to counsel: see R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 24; R. v. K.W.J., 2012 NWTCA 3, at paras. 32-33.

[15] The appellant contends that the police officers did not facilitate his wish to contact his wife so that she could obtain a lawyer for him.

[16] I do not accept this submission. This issue was not raised at trial. The trial judge found as fact that the appellant wished to speak to duty counsel and did so before his interview with the police. The appellant made no complaint about the advice he received and he clearly understood his right to silence.

[17] In any event, it was appropriate for Detective McLean to ask the appellant if he or his wife had a lawyer; this would be required information if the officer was going to assist the appellant in contacting a specific lawyer.

[18] Finally, I do not think that Detective McLean attempted to deflect the appellant's attention away from the retention of a private lawyer and towards consultation with duty counsel. He was simply trying to obtain sufficient information to be able to comply with his constitutional obligation to assist the appellant in his desire to obtain legal advice. The detective's references to the duty counsel option were consistent with this goal: see R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, at para. 19.

(2) New jeopardy

[19] The appellant contends that a second s. 10 (b) Charter breach occurred when the appellant was not afforded an opportunity to re-consult with counsel after Detective McLean informed him that there might be an allegation that he had abused his own children.

[20] Section 10(b) of the Charter affords an accused a single consultation with counsel. However, in some instances, a further opportunity to consult with counsel may be required where a change in circumstances necessitates a second consultation to fulfil the purposes of s. 10(b). One of the main instances in which an opportunity of a second consultation is required is where the accused faces a change in jeopardy. As explained by McLachlin C.J. and Charron J. in Sinclair, at para. 51:

The detainee is advised upon detention of the reasons for the detention: s. 10(a). The s. 10(b) advice and opportunity to consult counsel follows this. The advice given will be tailored to the situation as the detainee and his lawyer then understand it. If the investigation takes a new and more serious turn as events unfold, that advice may no longer be adequate to the actual situation, or jeopardy, the detainee faces. In order to fulfill the purpose of s. 10(b), the detainee must be given a further opportunity to consult with counsel and obtain advice on the new situation.

[21] In my view, the conversation between the appellant and Detective McLean during the interview did not rise to a level that required a second s. 10(b) offer to the appellant.

[22] A leading case on the duty of police to re-advise detainees of their rights during an interview/statement scenario is this court's decision in R. v. Sawatsky (1997), 1997 CanLII 511 (ON CA), 35 O.R. (3d) 767. In that case, this court held that the police must reiterate the right to counsel if they ask questions that go beyond an exploratory stage in connection with a related but significantly more serious offence or a different or unrelated offence. See also R. v. D.T., 2013 ONCA 166, 305 O.A.C. 58, at para. 28.

[23] Detective McLean's conduct in his interview with the appellant does not come close to crossing the line drawn in Sawatsky and D.T. On this point, I explicitly endorse the trial judge's reasoning in his voir dire ruling:

During Mr. Blake's interview, Detective McLean raised the issue of a separate investigation that police and the Children's Aid Society were going to be jointly looking into regarding Mr. Blake's children. On behalf of Mr. Blake it is submitted that he was effectively "threatened" with other charges in relation to the abuse of his child or children for which he faced new jeopardy and regarding which he should have been advised of his rights once more to speak to counsel. I do not agree.

I do not accept that there is an evidentiary foundation upon which to find that this reference to a separate investigation involving the Children's Aid Society and Mr. Blake's children was in any way a threat in relation to the allegations currently before the court. Detective McLean did not in any way threaten Mr. Blake with separate charges if he did not confess to the allegations before the court. Mr. Blake was never told that he would be facing any further charges. Quite to the contrary, at that point in time, the investigation had not even commenced.

I do not accept that Mr. Blake faced an inquiry or elevated jeopardy in respect of the Children's Aid Society investigation which could cause him to feel threatened in respect of very different charges before this court. There was no "quid pro quo" on the evidentiary record before this court that would in any way suggest that if Mr. Blake did not confess to the offences for which he had been charged involving [the complainant], then, he would face an entirely new and separate set of charges involving the abuse of his children.

(3) Voluntariness

[24] The appellant submits that by raising child abuse allegations, Detective McLean created an atmosphere of oppression. The also appellant submits that the trial judge erred by failing to conclude that the appellant's confession was unreliable because it flowed from Detective McLean's disingenuous description of the legal consequences of consensual sex with a minor.

[25] I do not accept that raising a child abuse allegation created an atmosphere of oppression. That line of questioning lasted for less than five minutes. It did not create oppressive conditions or cause him to confess. His will was not overborne.

[26] There is no doubt that Detective McLean introduced, and even pressed, the issue of consensual sex during his interview with the appellant:

DCM: So that's what I'm talking about, consent, you understand all that. And … that explains a lot to me if that is the case….

DCM: I'm saying if you … had consent then you had consent and I'm going home.

DCM: But my whole thing is if this is consent…

JB: Yeah.

DCM: … it's consent and that would explain everything, then I can go back and talk to them.

JB: You know what?

DCM: And I'll be back and let them know my update.

[27] In my view, this line of questioning did not cross the line into improper police inducement. Detective McLean testified, and the trial judge accepted in his ruling, that his intention in adopting this approach was to reduce the moral blameworthiness of the appellant's acts, making it easier for him to tell the truth about what had happened.

[28] Importantly, Detective McLean did not tell the appellant that the charges would be dropped if the sex with the complainant was consensual. Indeed, when the appellant asked him a question about consensual sex, Detective McLean replied: "When… two people, two adults have consensual sex there's no charge."

[29] Finally, I note that the appellant testified at his trial. During cross-examination, this exchange occurred:

Q. I'm going to suggest to you that you admitted that you did it when you thought it wasn't a crime.

A. No.

Q. That's the only reason you broke down…

A. No.

Q. …because you believed that it wasn't illegal to have sex with a 15 year old so you thought you were off the hook.

A. I know it's illegal to have sex with a 15 year old and I never had sex with a 15 year old. [Emphasis added.]

[30] In summary, I do not think that Detective McLean's language during the consent component of the interview amounted to an improper inducement.

E. Disposition

[31] I would dismiss the appeal.

Released: October 7, 2015 ("K.F.")

"J.C. MacPherson J.A."

"I agree. K. Feldman J.A."

"I agree. B.W. Miller J.A."