Court of Appeal for Ontario
Date: May 25, 2017
Docket: C59006
Judges: Watt, Lauwers and Benotto JJ.A.
Between
Her Majesty the Queen Respondent
and
Theodore Wellington Richards Appellant
Counsel:
- Carlos Rippell and Marianne Salih, for the appellant
- Jeremy Streeter, for the respondent
Heard: October 17, 2016
On appeal from the conviction entered on May 7, 2014 by Justice Norman S. Douglas of the Ontario Court of Justice.
Watt J.A.:
Introduction
[1] Sometimes, houses get a reputation. And it is not always good. Take, for example, 34 Verney Street in Guelph. Drugs available. There and delivered elsewhere. At least according to confidential informants.
[2] Police surveillance over three days in July 2012 disclosed activity consistent with traffic in drugs. Short visits to the house. Short visits by an occupant to other houses. And an apparent hand-to-hand transaction on a front porch.
[3] Theodore Richards lived at 34 Verney Street. So did his daughter. And two of his sons. Each had their own room.
[4] The police wanted to search 34 Verney Street for drugs and drug paraphernalia. They got a telewarrant to authorize their search. Then they arrested Theodore Richards at a local convenience store. He said he wanted to talk to a lawyer. A specific lawyer. But the police had other ideas. They wanted to search 34 Verney Street before allowing Theodore Richards to speak to his lawyer of choice. And that is what they did.
[5] Before Theodore Richards was allowed to speak to his lawyer of choice, a police officer spoke with him about the offences with which Richards was charged. Their conversation was not recorded. The officer made no notes.
[6] After Theodore Richards spoke to his lawyer of choice, then another lawyer, another officer interviewed him about the offences charged. This interview was audio and video recorded.
[7] Theodore Richards was charged jointly with his sons with possession of marijuana for the purpose of trafficking, and production of marijuana. He was charged alone with possession of cannabis resin for the purpose of trafficking.
[8] After a joint trial in the Ontario Court of Justice, Theodore Richards, who was self-represented, was found guilty of possession of marijuana for the purpose of trafficking and of possession of cannabis resin. He was found not guilty of production of marijuana.
[9] Theodore Richards appeals his convictions. He says that his trial was unfair; that the trial judge wrongly admitted his video recorded police interview; and failed to conduct an inquiry into a breach of his right to counsel under s. 10(b) of the Charter.
[10] As I will explain, I would allow the appeal, set aside the convictions entered at trial and order a new trial.
The Background Facts
[11] Some additional background, much of it procedural, will provide the setting essential to an understanding of the grounds of appeal advanced.
The Confidential Informants
[12] Police received information from confidential informants that drugs were being sold out of the house at 34 Verney Street in Guelph. The materials filed on the appeal do not contain the information to obtain (ITO), the telewarrant or any further details about the substance of the information provided or the reliability of the informants.
The Surveillance of 34 Verney
[13] The police conducted physical surveillance of 34 Verney and Theodore Richards' vehicle over a three-day period in July 2012, shortly before seeking a warrant to search the premises. Among other things, they saw:
- Theodore Richards make brief visits to several other residences;
- several persons make brief visits to 34 Verney; and
- an apparent hand-to-hand sale or transfer from Richards to a woman on the porch of a house.
The Search Warrant
[14] A police officer prepared an ITO for submission to a justice of the peace to obtain a warrant to search the house at 34 Verney. When the officer attended at the courthouse in Guelph, no justice of the peace was available to decide whether a warrant should issue. The officer then submitted the ITO to the telewarrant centre for consideration. The warrant was issued for execution on July 19, 2012.
The Arrest of Theodore Richards
[15] An officer arrested Theodore Richards shortly after 3:00 p.m. on July 19, 2012. He cautioned Richards, advising him of his right to say nothing and of the consequences of his choosing to speak. The officer then informed Richards of his right to counsel. Richards said that he would like to call a lawyer. The officer did not facilitate a call at the place of arrest (a local convenience store), but told Richards that he could make the call when they arrived at the police station.
The Search Incident to Arrest
[16] The arresting officer searched Theodore Richards incident to the arrest before putting him in the back seat of a police cruiser. During the search, the officer found some marijuana and a wad of Canadian currency.
The Police Station
[17] The arresting officer turned Theodore Richards over to another officer at the police station. The second officer repeated the right to counsel advice to Richards, who repeated his request to speak to a lawyer. However, this time, Richards identified a specific lawyer to whom he wished to speak.
[18] Concerned that other officers had not yet begun to execute the search warrant, the officer declined to facilitate Richards' request to speak to the lawyer of his choice. Instead, the officer offered to call Duty Counsel on Richards' behalf. Richards declined the offer of Duty Counsel and reiterated his request to speak to his counsel of choice.
[19] The officer and Theodore Richards remained in each other's company for about thirty minutes. Nothing that may have been said by one to the other was recorded. The officer made no notes of any conversation that may have occurred.
[20] In cross-examination of the officer, Theodore Richards suggested that he (Richards) told the officer where everything could be found in the house. He did so because he did not want the house "destroyed" during the search or his sons and daughter charged. The officer could not recall the suggested conversation, but acknowledged that it could have occurred.
The Video Statement
[21] Execution of the search warrant began at 4:39 p.m. on July 19, 2012, about one and one-half hours after Theodore Richards' arrest. Police seized drugs and drug paraphernalia from the residence. About ten minutes later, the officer permitted Richards to call his counsel of choice. The call was brief. Counsel of choice could not provide advice due to a conflict of interest. Richards then had another, equally brief, conversation with a second lawyer.
[22] A couple of hours after the telephone calls to the lawyers, another officer began an interview of Theodore Richards. This interview was audio and video recorded and monitored by a second officer. The Crown tendered it for admission at trial.
The Evidentiary Issues at Trial
[23] Theodore Richards was jointly tried with his sons, William Richards and Wayne Church. Theodore Richards and William Richards were self-represented. Wayne Church had counsel appearing on his behalf.
[24] Counsel for Wayne Church sought leave to cross-examine the author of the ITO on the basis of which the telewarrant was issued. The trial judge dismissed the application.
[25] The Crown tendered the video interviews of Theodore Richards and William Richards as evidence. On the voir dire to determine voluntariness, Theodore Richards testified as the only defence witness. The trial judge was satisfied that both statements were voluntary and admitted them as evidence on the trial.
[26] No one suggested at trial that a voir dire should be conducted to determine whether the video statement of Theodore Richards should be excluded as evidence because it had been obtained in a manner that infringed his rights under s. 10(b) of the Charter.
The Grounds of Appeal
[27] Theodore Richards ("the appellant") advances three grounds of appeal against conviction. As I would paraphrase them, they are:
i. that the conduct of the trial judge gave rise to a reasonable apprehension of bias, thus the trial was unfair and constituted a miscarriage of justice;
ii. that the trial judge erred in concluding that the videotaped interview was voluntary and thus admissible as evidence at trial; and
iii. that the trial judge erred in failing to embark upon an admissibility inquiry when the uncontradicted evidence at trial revealed an infringement of the implementation component of the appellant's right to counsel under s. 10(b) of the Charter.
Ground #1: Reasonable Apprehension of Bias
[28] The evidentiary basis of this claim rests on a portion of the trial judge's reasons for sentence in another completely unrelated proceeding that took place when the appellant was in court waiting for his trial to begin. To situate this claim in its proper setting, it is helpful to begin with the trial judge's remarks and then describe what use the appellant, who was then self-represented, sought to make of them at trial.
The Remarks of the Trial Judge
[29] While the appellant was in the courtroom waiting for his trial to begin, the trial judge gave oral reasons for sentence in an unrelated case. The accused in that case had been convicted of an offence involving a breach of trust that had apparently taken place over an extended time. She advanced an addiction to gambling as the basis for her behaviour that was otherwise out of character. The trial judge began his reasons for sentence in this way:
This accused has, from the material in front of me and from listening to her counsel, an addiction. Her addiction is to gambling. I say is, not was, because every addict knows that it is a lifelong battle, a day at a time, until the end of your life to beat an addiction. Like every addict, whether it be drugs, or alcohol, or whatever it is; every addict that I have ever met and I have met thousands, and thousands and thousands of them; are liars, cheaters, and thieves, every one. That is what their life is all about. They have a mask that they wear for some people, but down deep they know that in order to wear that mask they have to lie and they have to cheat and they have to steal, and that is exactly what she has done for many years.
The Recusal Motions
[30] Twice during the trial, the appellant made submissions about the impact of these remarks on the fairness of his trial.
[31] The appellant said nothing about these remarks until after the trial judge had ruled that the video interviews, in which he and William participated after their arrests, were voluntary and thus admissible in proof of guilt. He invited the trial judge to recuse himself because of his earlier remarks:
When I heard that in the courtroom, Your Honour, I felt I didn't wanna come in front of you no more, okay? I felt if you know thousands and thousands of people, and they're all liars and thieves, there must be hundreds of thousands and millions all throughout North America, and I didn't figure I was going to fair – get a fair trial from this court because of it.
I never said anything until now because I honestly thought that this would be thrown out.
[32] While the trial judge addressed the other issues raised by the appellant, he made no formal ruling on the recusal motion. Rather, he simply continued with the trial.
[33] The appellant repeated his reference to the earlier sentencing proceedings in his final submissions:
I spoke with you yesterday, and I talked about what was said in court by you with regards to another – another individual. The Crown was that girl's lawyer, okay, and that girl got 90 days from you, and whether – whether you didn't mean it to come out the way you said that day, he said,
"I, I – I have seen alcoholics and drug addicts, and each and every one of them, all of them, are liars, thieves."
I know people in this town that are – smoke a joint, but that doesn't mean they're a liar, or a thief because they smoke joints every day, or a cheater.
You know, so I didn't want to come in front of this court because I felt that everything that I have done to this point, and the reason why we're here was twisted around by this – it didn't matter what – if I said it was black, it was white, you know. Like even today, again, you know, that's how I feel, whether – all aside, I'm guilty of what I've done.
He then added:
I just feel that everybody else involved should step up to the plate and take responsibility for their actions, okay. That's all I have to say, Your Honour.
[34] After oral argument had concluded, the trial judge adjourned proceedings. Later the same day, the judge gave oral reasons convicting the appellant of possession of marijuana for the purpose of trafficking and possession of cannabis resin. He acquitted the appellant of production of marijuana.
The Arguments on Appeal
[35] The appellant acknowledges that our analysis must begin from a presumption of integrity of judicial decision-makers, a presumption that the appellant accepts he must discharge by the introduction of cogent evidence. To do so, he says, he does not have to establish actual bias. A reasonable apprehension of bias will suffice. This standard includes two objective elements. The person who considers the alleged bias must be reasonable. And the apprehension of bias must also be reasonable.
[36] The appellant submits that the trial judge's comments in the earlier sentencing proceedings constitute cogent evidence to rebut the presumption of integrity and to establish a reasonable apprehension of bias. The comments amount to stereotyping of addicts, whatever their addiction, as liars, cheats and thieves. Although there is no direct evidence that the appellant was an addict, there is evidence that he was a long-time and current drug user who had previously been addicted to cocaine. Thus, he was a member of the liars, cheats and thieves group described by the trial judge.
[37] According to the appellant, this reasonable apprehension of bias resulted in a loss of jurisdiction that requires a new trial, irrespective of the correctness of the trial judge's ultimate determination.
[38] Like the appellant, the respondent invokes the presumption of integrity as the starting point for our analysis. He emphasizes that rebuttal can only be accomplished by cogent evidence. And it is there, the respondent says, where the appellant's claim fails.
[39] The respondent points out that the sole evidentiary support for the appellant's claim comes from remarks made by the trial judge in sentencing a convicted offender in entirely unrelated proceedings. We have no information about the circumstances which gave rise to the comment. Nor is there any evidence that links the comment to the appellant's case or his circumstances.
[40] An allegation of bias, whether actual or reasonably apprehended, demands a case-specific inquiry. It cannot be transposed from a single instance in an unrelated case to an entirely different set of circumstances. The appellant can point to nothing that the trial judge said or did at his (the appellant's) trial that could fund a claim of bias. The appellant did not testify at trial. The trial judge's rejection of the appellant's evidence on the voluntariness voir dire was not rooted in stereotypical attitudes. Indeed, credibility was not seriously an issue on the voir dire. The trial judge considered all the circumstances and found no evidence that raised a reasonable doubt about the voluntariness of the statement.
[41] Finally, the respondent contends that the timing of the appellant's complaint of bias is telling. The appellant did not raise his concerns until after his videotaped statement was admitted into evidence. The timing suggests the recusal request was nothing more than a veiled attempt by the appellant to try his luck in front of another judge on another occasion.
The Governing Principles
[42] No serious dispute arises about the principles that control our decision in this case. A brief reminder will suffice.
[43] First, there is a presumption of judicial integrity, that is to say, that judges will carry out their oath of office: R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 117. This presumption is one of the fundamental reasons why the threshold for a successful allegation of actual or apprehended judicial bias is high: S. (R.D.), at para. 117.
[44] Second, this presumption of judicial integrity does not relieve a judge from their sworn duty to be impartial: S. (R.D.), at para. 117.
[45] Third, although the threshold for a successful claim of actual or apprehended bias is high, it is not insurmountable. The presumption of judicial integrity can be displaced by cogent evidence that demonstrates that something the judge did or said gives rise to a reasonable apprehension of bias: S. (R.D.), at para. 117.
[46] Fourth, in accordance with general principle, the onus of rebutting the presumption of integrity, or put another way, of demonstrating bias, rests upon the party who alleges it, in this case, the appellant: S. (R.D.), at para. 114.
[47] Fifth, allegations of reasonable apprehension of bias, thus inquiries into whether such a claim has been made out, are entirely fact-specific. It follows that it is simply not possible to examine another case and conclude that the determination of the presence or absence of bias in that case must apply to and control the disposition of the case under consideration: S. (R.D.), at para. 136.
[48] Sixth, the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining the required information about it. The test is "What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude": Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394.
[49] Inherent in this test is a two-fold objective element. The person considering the alleged bias must be reasonable. And the apprehension of bias must also be reasonable in all the circumstances of the case. The reasonable person must be informed, impressed with the knowledge of all the circumstances, including the traditions of integrity and impartiality that form a part of the background and cognizant of the fact that impartiality is one of the duties judges swear to uphold: S. (R.D.), at para. 111.
[50] Finally, stereotypical reasoning may give rise to a reasonable apprehension of bias: S. (R.D.), at para. 6, Major J. dissenting.
The Principles Applied
[51] For several reasons, I would not give effect to this ground of appeal.
[52] To assess the merits of the appellant's claim that the trial proceedings were fatally flawed by a reasonable apprehension of bias, it is essential to begin with a firm understanding of the nature of bias and the standard the appellant must meet in order to succeed on this ground.
[53] Bias denotes a state of mind, one that is in some way predisposed to a particular result, or that is closed with regard to a particular issue or issues. Bias represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction.
[54] The apprehension of bias must be reasonable in two respects. The person considering the alleged bias must be reasonable. The apprehension of bias itself must be reasonable in the circumstances of the case. The reasonable person is an informed person, with knowledge of all relevant circumstances including, but not limited to, the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is a duty judges swear to uphold.
[55] Second, the onus imposed on an appellant to defeat the well-established presumption of impartiality is significant. What is required is cogent evidence that something said or done, or for that matter, left unsaid or undone in the proceedings, gives rise to a reasonable apprehension of bias.
[56] In this case, the appellant can point to nothing in the trial proceedings themselves to fund his claim of reasonably apprehended bias. Nothing said. Nothing done. Instead, he relies on comments made in sentencing an offender convicted of an offence involving a breach of trust as revealing a stereotypical attitude that foredoomed the appellant's fair trial. While I do not gainsay that in some instances judicial comments in prior unrelated proceedings may be of service in subsequent cases, those comments cannot be shorn of their context and pressed into service to supply an essential ingredient not apparent in the impugned proceedings themselves.
[57] Third, the characterization invoked as evidencing bias related to the honesty of those addicted. The appellant did not testify at trial, thus any stereotypical characterization of addicts as dishonest, thus testimonially unreliable, played no part in the trial judge's conclusion that the evidence established the appellant's guilt. Nor did the trial judge's decision on the voluntariness voir dire turn on the testimonial unreliability of the appellant. Rather, the trial judge simply concluded, from the evidence taken as whole, that the appellant spoke to investigators for his own purposes, namely, to accept responsibility so that his children would not be charged.
[58] Fourth, claims of actual or apprehended bias are case and fact-specific. They require a thorough canvass of the proceedings in their entirety. It is telling that the appellant can point to nothing in the proceedings under review to support his claim. The earlier comments formed no part of the ruling on voluntariness, likewise of the finding of guilt. The impugned remarks, made in unrelated proceedings after guilt had already been determined, is incapable of demonstrating any sound basis for perceiving that any decision made at trial was grounded in prejudice, generalizations or stereotypical reasoning. In coming to this conclusion, I in no way condone the word choice employed by the trial judge in the unrelated proceedings. At issue here is the lack of nexus between the impugned remarks and the appellant's trial.
[59] Fifth, with due allowance for the fact that the appellant was self-represented at trial, the claim of bias was only advanced after the trial judge had ruled on the voluntariness, hence admissibility of the police utterances made by both the appellant and William Richards, about eight months after the remarks said to evidence bias were made.
[60] The mere fact that the ruling was adverse to the appellant does not itself reflect bias, nor can the prior remarks be inserted into the ruling to artificially colour it with stereotypical considerations.
Ground #2: The Admissibility of the Police Interview
[61] The second ground of appeal questions, on three discrete bases, the correctness of the trial judge's decision to admit as voluntary the videotaped post-arrest interview of the appellant. The specific claims of error are these:
i. overemphasis on the veracity of the statement as the primary determinant of voluntariness;
ii. failure to intervene during the cross-examination of the appellant on the voir dire about the truthfulness of certain of his comments during the interview; and
iii. misapprehension of the appellant's evidence about his motivation to provide a statement.
[62] A brief reference to what occurred during the voir dire followed by a short excerpt from the trial judge's ruling will provide a suitable backdrop for the discussion that follows.
The Conduct of the Voir Dire
[63] The Crown tendered the video interviews of the appellant and William Richards as voluntary statements made to a person in authority. A single voir dire was conducted. The appellant cross-examined various police officers called by the Crown to prove voluntariness. William Richards, who was also self-represented, asked no questions. Counsel for the third co-accused, Wayne Church, also participated in the voir dire.
[64] The appellant testified on the voir dire. He explained why he participated in the video interview, despite having been advised by counsel to say nothing to the police. He had already admitted to a police officer (Cst. Hunt) where those searching his home would find drugs and other paraphernalia and that those items belonged to him. He did so because he did not want the police "destroying" his home during the search, and wished any charges against his children dropped. He acknowledged that what he told the police was voluntary.
[65] Counsel for Wayne Church cross-examined the appellant on the voir dire, securing his agreement that what he had told police about Church's lack of knowledge and involvement was true. The Crown cross-examined the appellant on his motive for providing a statement and the fact that he had spoken to a lawyer before participating in the video interview.
The Ruling of the Trial Judge
[66] The trial judge was satisfied that the video interview of the appellant (as well as that of William Richards) was voluntary, thus admissible at trial. He noted the appellant's acknowledgment that what he told the police was truthful. The appellant was motivated by a desire to accept responsibility, tell the police the truth and persuade investigators not to proceed against his children.
[67] In his oral reasons delivered at the conclusion of the voir dire, the trial judge made these critical findings:
Well, that's his version of it, that's his belief, but when he goes on to say that he told them the truth anyway, and while I am satisfied that there is no evidence other than his say-so that the police tricked him or promised him something, it's obvious to me that from the get-go, from the get-go, as soon as they caught him, he was wanting to tell them the truth about what he knew. He was wanting to take responsibility for the marijuana that was found in his home, and he, he was the one who was most interested in persuading the police not to proceed with charges against anybody else, that was his stance from the very beginning. And so while I appreciate that he believes that Constable Hunt didn't tell the whole truth with regard to the conversation that he might have had with him, it's immaterial to me on the issue of whether or not what he said to the police was voluntarily, and I don't believe, and I don't accept what he says when he says,
"I wouldn't have said anything if Constable Hunt hadn't said to me what he said to me,"
because in my understanding of the evidence, it was at his instance, from the very beginning, that he wanted the charges dropped against the other people, and so that was no inducement to him. I find, therefore, that his evidence is voluntary, and therefore is admissible as evidence against him…
The Arguments on Appeal
[68] The appellant says that the primary rationale underpinning the confessions rule is the protection of the principle against self-incrimination. The focus of the inquiry into admissibility is on the voluntariness of the statement, not its truthfulness or falsity. When, as here, the focus is on veracity, according to the appellant, the principle against self-incrimination is contravened in two ways. The misplaced focus on veracity encourages abusive police conduct in obtaining confessions by promoting the notion that, if the statement is true, it will be admitted as evidence, no matter how it was obtained. He adds that a focus on veracity also compels an accused who testifies on the voir dire to respond to incriminating questions, which has a corresponding chilling effect on those accused of crimes taking the stand during a voir dire. This further encourages improper police conduct.
[69] The appellant contends that the trial judge applied the wrong test in determining the voluntariness of the appellant's police interview. The judge fastened upon reliability, thus the veracity of the statement, as the primary consideration in the inquiry into voluntariness. The veracity of the statement has no bearing on the issue of voluntariness, and little relevance on the assessment of the appellant's credibility as a witness on the voir dire.
[70] In addition, the appellant continues, the trial judge made two errors when he failed to intervene in counsel for the co-accused's cross-examination of the appellant on the voir dire on voluntariness. Counsel for the co-accused, Wayne Church, lacked standing to cross-examine the appellant on the voir dire. The appellant's statement was not and could not become evidence either for or against Church. Not only did the trial judge err in permitting counsel for the co-accused to cross-examine the appellant on the voir dire, but the judge also used the answers to the impermissible questioning on veracity as the primary basis upon which to ground his finding of voluntariness.
[71] The appellant also submits that the trial judge misapprehended the evidence of the appellant about his motivation to participate in the police interview. It was clear from the early stages of the police investigation that the appellant wanted to take responsibility for the drugs in order to "get his children off their charges". But this desire had nothing to do with whether the police had in fact offered him an inducement to speak, much less whether such an inducement, offered before police executed the search warrant, arrested his children and gave the appellant the opportunity to speak to counsel, lured him into making the statement.
[72] The respondent rejects any suggestion that the trial judge erred in ruling that the police interview of the appellant was voluntary, thus admissible as evidence at trial. The trial judge demonstrated his awareness of the legal standard of admissibility and the rationale on which it was grounded. He examined all the circumstances surrounding the interview and concluded, as he was entitled to do, that the Crown had established voluntariness beyond a reasonable doubt.
[73] The respondent says that the trial judge rightly concluded that from the outset of the investigation, the appellant was motivated to take responsibility for the drugs and related items he knew the police would find in a search of his home. He made this decision on his own. By admitting sole responsibility, he hoped that the police would not charge his children. The only evidence of any inducement by the police was what the appellant attributed to Cst. Hunt before the video interview began. But the trial judge was satisfied that nothing Cst. Hunt may have said induced the appellant to speak when he would not have otherwise done so. These findings were well-grounded in the evidence adduced on the voir dire, including the appellant's own testimony that he told Cst. Hunt as soon as he (Hunt) entered the room at the station where everything could be found at his home.
The Governing Principles
[74] The confessions rule is concerned with voluntariness, broadly defined. A predominant reason for this concern is that involuntary confessions are considered more likely to be unreliable. While the overriding concern of the confessions rule is with voluntariness, hence its place as a condition precedent to admissibility, voluntariness overlaps with reliability: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 32, 47.
[75] In each case, the application of the confessions rule is contextual. The trial judge is required to conduct an inquiry of all the relevant circumstances and factors to determine whether the Crown has proven voluntariness beyond a reasonable doubt: Oickle, at para. 47.
[76] Where what is said to negate voluntariness is an inducement offered by a person in authority, a trial judge should examine the evidence for a quid pro quo offer by investigators. This offer raises the possibility that an accused is confessing, not because of any inherent desire to do so, but because of an appetite for the benefit offered. The mere offer of an inducement is not improper. An inducement only becomes improper when, on its own or in combination with other factors, the inducement is strong enough to raise a reasonable doubt about whether the accused's will has been overborne: Oickle, at paras. 56, 57; R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 15.
[77] Sometimes, perhaps often, the motives of an accused to admit responsibility for an offence are mixed. Some hope that an early admission may yield something they seek. Early release. A lenient sentence. Favourable treatment of another. Where the hope is self-generated, it can scarcely be contended that its origins are moored in anything said or done by a person in authority. The essential quid pro quo falls away in such cases, even if something said or done by a person in authority amounts to an inducement. For there, there is no nexus: Oickle, at para. 57; R. v. Rennie (1981), 74 Cr. App. R. 207 (C.A.), at p. 212.
[78] Something should be said about two features of the voir dire as it unfolded before the trial judge.
[79] The first has to do with the right of counsel for a co-accused to participate in the voir dire.
[80] It is fundamental that in nearly all cases, a statement made to a person in authority by one accused is not admissible in relation to another co-accused in a joint trial, even if the statement refers to something said or done by the other accused: R. v. Zvolensky, 2017 ONCA 273, at para. 25. The co-conspirators' exception to hearsay is an exception to this general rule: see, R. v. Baron (1976), 31 C.C.C. (2d) 525 (Ont. C.A.), at p. 533. It follows that, at least as a general rule, a co-accused has no direct interest in a voir dire held to determine the admissibility of another co-accused's statement, thus no unqualified right to participate in a voir dire to determine the admissibility of that statement: R. v. McLeod (1983), 6 C.C.C. (3d) 29 (Ont. C.A.), at p. 36, affirmed , [1986] 1 S.C.R. 703.
[81] The second concerns the propriety of questions of an accused who testifies on a voluntariness voir dire about the truthfulness of the statement or selected parts of it.
[82] In R. v. DeClercq, [1968] S.C.R. 902, the Supreme Court of Canada held that the truth or falsity of a statement to a person in authority is not irrelevant to an inquiry into the voluntariness of the statement. In giving evidence on the voir dire on voluntariness, an accused may be asked whether the statement is true: DeClercq, at pp. 907-8 and 911. Until the Supreme Court of Canada says otherwise, DeClercq remains binding precedent despite its reliance on R. v. Hammond (1943), 28 Cr. App. R. 84 (C.C.A.), a decision subsequently overruled by the Privy Council in R. v. Wong Kam-Ming (1979), 69 Cr. App. R. 47.
The Principles Applied
[83] As I will explain, I would not give effect to this ground of appeal. Neither individually, nor in combination, do the discrete claims of error advanced by the appellant persuade me that the trial judge was wrong in finding the video interview of the appellant voluntary and thus admissible in evidence at trial.
[84] First, the pre-occupation with and dispositive influence of the truthfulness of the statement.
[85] The trial judge accurately described the principles that govern the determination of voluntariness. Nothing he later said revealed anything other than his fidelity to those governing principles. Read as whole, the trial judge's reasons do not sustain the appellant's characterization of truthfulness as the determinative factor in the voluntariness decision. The reasons reveal a finding of voluntariness based on a consideration of all the circumstances.
[86] The single factor advanced by the appellant to raise a reasonable doubt about voluntariness was an alleged inducement offered by Cst. Hunt. But the trial judge found, as he was entitled to find on the evidence, that the appellant's motivation to speak was self-generated and preceded anything that may have been said by Cst. Hunt. Even accepting the appellant's version of his interaction with Cst. Hunt, any inducement offered by the officer, on its own or in combination with other factors, is incapable of generating a reasonable doubt about whether the appellant's will was overborne. This self-generated motivation puts paid to any credible assertion of involuntariness.
[87] Second, the participation of counsel for the co-accused Church in the voir dire on voluntariness.
[88] In the circumstances of this case, the trial judge erred in permitting counsel for the co-accused Church to participate in the voir dire to determine the voluntariness, thus admissibility of the police interviews of the appellant and William Richards. This was not a case in which either statement was admissible to assist in determining the adequacy of the Crown's case against Wayne Church.
[89] To permit counsel for the co-accused to participate in the voir dire to determine the voluntariness, thus admissibility of the police interviews of the appellant and William Richards was a procedural irregularity. However, it did not cause the trial judge to lose jurisdiction over the class of offence on which the appellant was being tried. Nor did the appellant suffer any prejudice as a result of counsel's participation in the voir dire. If need be, I would apply the curative proviso in s. 686(1)(b)(iv) to sustain the voir dire result, despite this procedural irregularity.
[90] Absent later jurisprudence from the Supreme Court of Canada overruling DeClercq and holding that an accused who testifies on a voir dire into the voluntariness of a statement to persons in authority cannot be asked about the truthfulness of the statement or parts of it, I am unable to conclude that the cross-examination was improper. I have already rejected as unsupported by the reasons read as a whole the claim that the trial judge treated the admitted truthfulness of parts of the statement as dispositive of its voluntariness.
[91] The submission that a focus on veracity encourages abuse of police conduct in questioning an accused and discourages an accused from testifying on the voir dire is without merit.
[92] The voluntariness rule, as well its accompanying burden and standard of proof, constitute a significant barrier to abusive police questioning, apart altogether from any constitutional restrictions that may apply.
[93] The complaint that responses to questions on a voir dire may incriminate an accused moves no freight. The discrete nature of voir dire proceedings ensures that the answers given there do not form part of the evidence at trial on the basis of which the guilt of an accused will be determined. That an accused testifies on the voir dire imposes no obligation on him or her to testify at trial. Further, the fact that a cross-examiner's questions may elicit incriminating responses proves too much. That an accused who testifies may be compelled to give incriminating responses is not confined to cross-examination on a voir dire. It extends equally to the trial itself. So far as I am aware, such a prospect has not been advanced as having a chilling effect on the decision of an accused to testify or decline to give evidence.
[94] Third, misapprehension of evidence.
[95] After a careful review of the trial judge's reasons on the voir dire, I am unable to find any misapprehension of the substance of the appellant's evidence, much less one that plays an essential part in the reasoning process that resulted in the admission of the interview as a voluntary statement to a person in authority.
Ground #3: Inadequate Assistance to the Self-represented Accused
[96] The final ground of appeal fixes on the obligations of a trial judge to assist a self-represented litigant in trial proceedings. More narrowly, it targets the failure of the trial judge to assist the appellant when evidence was given which revealed a breach of the implementation component of the right to counsel under s. 10(b) of the Charter.
[97] The evidence that supplies the foundation for the alleged infringement is uncontroversial. For current purposes, a brief summary of it will suffice.
The Arrest, Caution and Charter Advice
[98] An officer arrested the appellant without warrant at a local convenience store. He cautioned the appellant and provided him with the advice required by ss. 10(a) and (b) of the Charter. The appellant responded with a request to speak with a lawyer. The officer told him that he could speak to a lawyer when they got to the police station. En route to the station, the officer did not try to elicit any information from the appellant.
[99] At the station, the arresting officer did not facilitate any contact between the appellant and a lawyer. Instead, he turned the appellant over to another police officer who reiterated the police caution and Charter advice. This time, the appellant responded to the Charter advice by asking to speak to a specific lawyer whose name he provided. The officer did not facilitate his request, apparently because execution of the telewarrant at the appellant's home had not yet begun. Instead, the officer offered to contact Duty Counsel to speak with the appellant, an offer the appellant declined.
[100] The second officer remained with the appellant for about half an hour. They talked. Their discussion was not recorded. The officer took no notes and claimed little, if any, recollection of what they had talked about. Shortly after execution of the telewarrant began, the officer permitted the appellant to speak to his counsel of choice. Then to a second lawyer, because counsel of choice had a conflict of interest. These conversations were brief and occurred about one and one-half hours after the appellant's arrest.
[101] Shortly after the appellant's brief discussion with the lawyers, the interview admitted in evidence began, with yet another officer asking the questions.
The Response of the Trial Judge
[102] Evidence that the police twice failed to facilitate the appellant's contact with counsel did not prompt the trial judge to advise the appellant of the police's obligation to do so or of his right to challenge the admissibility of the video interview as evidence obtained in a manner that infringed his right to counsel.
[103] The judge provided the appellant with no materials to assist him in understanding the issue or in pursuing exclusion. Neither did he make any inquiry of the Crown.
The Arguments on Appeal
[104] The appellant says that the uncontradicted evidence disclosed an infringement, arguably two infringements, of the implementation component of s. 10(b) of the Charter. This required the trial judge to undertake an inquiry to determine:
i. the nature and extent of the infringement;
ii. whether there was a sufficient nexus between the infringement and the subsequent interview such that the evidence of the interview fell within the reach of s. 24(2) of the Charter; and
iii. in the event s. 24(2) applied, whether the evidence should be excluded under R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
[105] The appellant says that had the trial judge followed these steps, the video interview would have been excluded as evidence against him.
[106] The respondent acknowledges that it would have been preferable that the police put the appellant in contact with counsel immediately. In the end, however, the appellant did speak with counsel of his choosing prior to the police interview, was advised that he need not speak to investigators, but went ahead anyway and did so. In these circumstances, the respondent submits, had an admissibility inquiry been conducted, the evidence would have been admitted.
[107] The respondent says that the earlier failure to provide timely access to the advice of counsel would only be of consequence to the issue of admissibility if Cst. Hunt had interrogated or otherwise elicited evidence from the appellant while they were in each other's company. But Cst. Hunt did not do this, rather confined his few queries to information required for the booking process. The appellant's own evidence made it clear that it was he who volunteered the information, taking responsibility for what would be found on the search to avoid damage to his home during the search and to exculpate his children.
The Governing Principles
[108] The principles that govern our decision on this ground of appeal are those that describe the obligation imposed on a trial judge to assist a self-represented accused; those that delineate the duty on the police when a detainee invokes their right to speak with a lawyer; and those that define the scope of the phrase "evidence…obtained in a manner…" in s. 24(2) of the Charter.
[109] First, the obligation imposed on a trial judge where an accused is self-represented.
[110] Where an accused is self-represented, a trial judge has a duty to ensure that the accused has a fair trial. To fulfill this duty, the trial judge must provide guidance to the accused to the extent the circumstances of the case and accused may require. Within reason, the trial judge must provide assistance to aid the accused in the proper conduct of his defence and to guide him as the trial unfolds in such a way that the defence is brought out with its full force and effect: R. v. Chemama, 2016 ONCA 579, 351 O.A.C. 381, at para. 13; R. v. Tran (2001), 156 C.C.C. (3d) 1 (Ont. C.A.), at para. 22; R. v. McGibbon (1988), 45 C.C.C. (3d) 334 (Ont. C.A.), at p. 347.
[111] The duty owed by trial judges to self-represented litigants is circumscribed by a standard of reasonableness. The trial judge is not, and must not become, counsel for the accused. The judge is not entitled, indeed prohibited, from providing the assistance of the kind counsel would furnish when retained to do so: Chemama, at para. 14; R. v. Taubler (1987), 20 O.A.C. 64 (C.A.), at para. 30; R. v. Turlon (1989), 49 C.C.C. (3d) 186 (Ont. C.A.), at p. 191; McGibbon, at p. 349. A standard of reasonableness accommodates a range of options to ensure the necessary degree of assistance and eschews a single exclusive response.
[112] The onus on the trial judge to assist the self-represented accused is a heavy one. This characterization means that it is not enough that the verdict at the end of the trial is or appears correct. What matters is whether the trial has been fair to the self-represented accused: Tran, at para. 31; R. v. Dimmock (1996), 47 C.R. (4th) 120 (B.C. C.A.), at para. 20.
[113] The onus extends, at least can extend, to an obligation on the trial judge to raise Charter issues on the judge's own motion where the accused is self-represented: R. v. Travers, 2001 NSCA 71, 154 C.C.C. (3d) 426, at para. 36. This is not to say, however, that this specific obligation becomes engaged on the mere scent or intimation of a possible Charter infringement: Travers, at para. 40. But where there is admissible uncontradicted evidence of a relevant Charter breach, the trial judge has an obligation to raise the issue, invite submissions and enter upon an inquiry into the infringement and its consequences: Travers, at paras. 36, 40; R. v. Arbour (1990), 4 C.R.R. (2d) 369 (Ont. C.A.), at p. 372.
[114] Second, the implementation component in s. 10(b) of the Charter.
[115] The implementation component in s. 10(b) becomes engaged when an accused or detainee invokes the right to speak to a lawyer. Invocation of the right imposes a duty on police to afford the detainee a reasonable opportunity to exercise the consultative aspect of the right and to refrain from attempting to elicit evidence or otherwise using the accused as a source of information until she has had a reasonable opportunity to consult with counsel: R. v. Evans, [1991] 1 S.C.R. 869, at p. 890; R. v. Smith, [1989] 2 S.C.R. 368, at pp. 384, 391.
[116] Where compelling and urgent circumstances exist, police need not hold off in their attempts to elicit incriminating evidence from an accused. But urgency is not created by mere investigatory and evidentiary expediency: R. v. Prosper, [1994] 3 S.C.R. 236, at p. 275. Once police are clearly in control of the situation, they are required to permit a detainee to contact a lawyer: R. v. Strachan, [1988] 2 S.C.R. 980, at pp. 998-999.
[117] Third, the scope of the phrase "evidence…obtained in a manner…" in s. 24(2) of the Charter.
[118] The admissibility rule for which s. 24(2) provides may only be invoked in connection with "evidence…obtained in a manner that infringed or denied" any Charter guaranteed right or freedom.
[119] Where the evidence to which s. 24(2) is said to apply is a statement allegedly tainted by an earlier Charter breach, courts have adopted a purposive and generous approach. The party seeking exclusion need not establish a strict causal relationship between the breach and the later statement. The later statement will be tainted if the breach and the statement can be said to be part of the same transaction or course of conduct: Strachan, at p. 1005. A trial judge is required to consider all the circumstances to determine whether the evidence establishes, singly or in combination, a temporal, contextual or causal connection between the breach and the statement to engage the admissibility rule of s. 24(2): R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21; R. v. Plaha (2004), 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 45. A temporal connection between the breach and the statement is usually enough to bring the statement within the reach of s. 24(2): Plaha, at para. 48. A remote or tenuous connection will not suffice: Wittwer, at para. 21; Plaha, at para. 45; R. v. Goldhart, [1996] 2 S.C.R. 463, at para. 40.
The Principles Applied
[120] As I will briefly explain, I would give effect to this ground of appeal.
[121] The evidence adduced on the inquiry into voluntariness indicated that, on two occasions when the appellant invoked his right to speak to a lawyer, including one occasion when he asked to speak to a specific lawyer, the arresting officer and a second officer failed to provide him with a reasonable opportunity to do so. The appellant was clearly in the control of the police, going nowhere and doing nothing to interfere with their investigation. There was no urgency. And none was created by mere investigative expediency. The request was to call a lawyer, ultimately a specific lawyer, not to call home to alert his children to an imminent search of the house.
[122] Second, the evidence on the voir dire also provided a foundation for a finding that there was a sufficient temporal, contextual or causal connection between the infringements and the police interview with the appellant. This nexus was capable of providing an entrée to the admissibility rule of s. 24(2).
[123] Third, the circumstances I have just described imposed an obligation on the trial judge to assist the self-represented appellant on this issue; to inquire into the circumstances to determine whether the interview tendered for admission was the product of constitutional infringement; and, if so, whether it should be excluded under s. 24(2) of the Charter.
[124] Fourth, the failure of the trial judge to assist the appellant and undertake the necessary inquiry amounted to a failure to provide the appropriate degree of assistance to a self-represented litigant against whom the police interview was the most significant piece of evidence. In these circumstances, the correctness or otherwise of the findings of guilt is beside the point. The appellant's trial was unfair, a consequence that cannot be made whole by the application of either s. 686(1)(b)(iii) or s. 686(1)(b)(iv).
Conclusion
[125] In the result, I would allow the appeal, set aside the convictions and order a new trial on the two offences of which the appellant was convicted at trial.
Released: May 25, 2017
"David Watt J.A."
"I agree. P. Lauwers J.A."
"I agree. M.L. Benotto J.A."
