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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim of the right to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

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. B.D., 2020 ONCA 50

DATE: 20200127

DOCKET: C66604

Gillese, Rouleau and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B.D.

Appellant

J. Scott Cowan, for the appellant

Charmaine Wong, for the respondent

Heard and released orally: January 16, 2020

On appeal from the conviction entered on November 29, 2018 by Justice Joseph M.W. Donohue of the Superior Court of Justice.

REASONS FOR DECISION

[1] The appellant appeals from his conviction for sexual assault. He advances only one ground of appeal.

[2] The appellant argues that the trial judge erred in admitting a statement he made to the police. Specifically, he submits that, on a proper reading of the statement, it is apparent that he had invoked his right to counsel and the interviewing officer did not facilitate the exercise of that right.

[3] We reject this ground of appeal.

[4] The appellant acknowledges that the informational component under s. 10(b) of the Canadian Charter of Rights and Freedoms was properly met. The sole issue is whether the implementational component was fulfilled.

[5] The appellant sought to exclude his videotaped interview by police. The trial judge reviewed and considered the transcript and video of the exchange between the appellant and the interrogating officer. As well, the interrogating officer testified on the voir dire. The trial judge concluded on a balance of probabilities that, despite being aware of his right to counsel, the appellant had not expressed a desire to consult counsel. This determination is a finding of fact which, absent palpable and overriding errors, is entitled to deference.

[6] The exchange relied on by the appellant is about two thirds into a 94- page-long transcribed statement. The critical exchange is as follows:

APPELLANT: can I call a lawyer then because like

OFFICER: you can call a lawyer

APPELLANT: no no I don’t think I’m guilty that’s the issue and you keep pressuring me more into it

OFFICER: I’m not okay

APPELLANT: no no

OFFICER: I’m not pressure you

[7] The appellant submits that this constitutes an equivocal request to consult a lawyer and that the police were obliged to stop the interview at this point and facilitate the request.

[8] The statement has to be viewed in context, which context includes the officer repeatedly reminding the appellant of his right to counsel, including virtually immediately following the above exchange where the officer stated:

… anytime you wanna to talk to a lawyer you can like that’s not a problem I haven’t got a problem with that thing is I have to stop the interview and put you into a private room so you can do that but at any time you can do that.

[9] The trial judge reviewed the entire video statement and heard the evidence from the officer. The trial judge applied the proper legal principles and based on the whole of the evidence, he found that there had not been an invocation of his right to consult a lawyer. This was a finding open to him and we find no error in it.

[10] For these reasons, the appeal is dismissed.

“Eileen E. Gillese J.A.”

“Paul Rouleau J.A.”

“Fairburn J.A.”