WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 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) Mandatory order on application.— 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.
486.6 Offence. —(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.
Court Information
Court File No.: Brampton/13-2341
Date: 2014-07-17
Ontario Court of Justice
Between:
Her Majesty the Queen
- and -
N.N.
Before: Justice James Stribopoulos
Application: Section 10(b) and 24(2) Charter Application
Heard: February 25, 2014
Reasons Released: July 17, 2014
Counsel:
- R. Levan, for the Crown / Respondent
- H. Saini, for the Defendant / Applicant
I. Introduction
[1] The defendant, N.N., is charged with sexual assault. His trial has commenced before me and remains ongoing.
[2] N.N. has brought an application pursuant to section 10(b) and 24(2) of the Canadian Charter of Rights and Freedoms. He claims that the statements he made when Constable Cullen interrogated him following his arrest, late on the evening of February 23, 2013 and into the early morning of the next day, were obtained in a manner that violated his right to counsel, as guaranteed by section 10(b) of the Charter. Further, he contends that the admission of evidence regarding his interrogation would bring the administration of justice into disrepute and he therefore seeks exclusion of that evidence pursuant to section 24(2) of the Charter.
[3] The Crown resists N.N.'s application. It responds by denying that there was any Charter breach. Alternatively, it is the position of the Crown that if a breach is made out, the evidence should not be excluded.
[4] These are my reasons with respect to the defendant's application pursuant to sections 10(b) and 24(2) of the Charter.
II. Circumstances Surrounding the Interrogation
[5] N.N. was arrested on Saturday, February 23, 2013, the date of the alleged offence. Following his arrest he was eventually placed in an interrogation room at 12 Division of the Peel Regional Police Service.
[6] Everything that transpired inside the interrogation room was audio and video recorded. Although no transcript was filed, what follows is a summary of the relevant events inside the interrogation room based on the DVD recording.
[7] After a brief interaction with an officer who completed some paperwork relating to N.N.'s arrest and collected some of his personal property, Constable Cullen enters the interrogation room.
[8] Constable Cullen begins by introducing himself, before next proceeding to inform N.N. that he is under arrest for sexual assault in relation to A.S. (the sister of N.N.'s common law spouse). N.N. confirms that he understands.
[9] Constable Cullen then proceeds to apprise N.N. of his right to counsel, this includes information about the availability of Legal Aid and the toll-free number by which he could be put in contact with duty counsel in order to obtain free and immediate legal advice. Again, N.N. confirms that he understands.
[10] When specifically asked by Constable Cullen if he wanted to call a lawyer, the following exchange takes place:
N.N: I don't even know his number.
Cst. Cullen: Whose your lawyer?
N.N: Um, he's a, he's Legal Aid, uh, Brian Crothers.
Cst. Cullen: Brian Crothers?
N.N: Yeah.
Cst. Cullen: Do you want to speak to Brian?
N.N: I'm still going to go to jail so, it doesn't really matter.
Cst. Cullen: So, yes or no, it is up to you?
N.N: If I can call him, if he'll answer, yeah … but I don't even know his number.
Cst. Cullen: Well, I've got a book.
N.N: Oh.
Cst. Cullen: So I can look up his name.
N.N: I guess.
[There is then some discussion regarding how to spell Mr. Crothers' name]
Cst. Cullen: I should be able to find it. Do you want to talk to duty counsel if I can't find it?
N.N: No.
[11] Constable Cullen then proceeded to read the primary and secondary common law cautions to N.N. After confirming that he understood the cautions, when prompted to explain what they meant, N.N. said, "if I say anything it can be used in court". N.N. then almost immediately indicated that he would be happy to answer any questions the officer might have. Constable Cullen then interrupted N.N., telling him that, "you've asked to talk to a lawyer; we can talk after you do".
[12] Constable Cullen then leaves the room. He returns 6½ minutes later, opening the door of the interrogation room. At that point, the following brief exchange takes place:
Cst. Cullen: Ok, so, I just called, uh, Brian Crothers, we're just going to wait for him to call back, so … and you want to speak to him right?
N.N: Yeah, I guess I'll ask him what to do.
Cst. Cullen: You know what, you said you want to speak to him, so its just for the best … we'll give it a few minutes and we'll go from there.
[13] Constable Cullen then left the room again. He returned approximately 22 minutes later. At that point, the following exchange takes place:
Cst. Cullen: Okay, um, its been over 25 minutes, a half hour, um, he hasn't called back. It's his after-hours line.
N.N: Oh, okay.
Cst. Cullen: So, [inaudible], if your fine with speaking or if you want to talk to a lawyer right now, I can call duty counsel?
N.N: Naw, he works for Legal Aid.
Cst. Cullen: Okay, I called his, looked up his, its Brian Crothers law firm. It's a firm in Mississauga, on Hurontario.
N.N: Yeah, right down.
Cst. Cullen: So I called the number. From that number they gave me his after hours number. And he hasn't called back. But you know, it is Saturday night, midnight. Um, so, if you want a lawyer, no problem. I can call duty counsel. If you don't want a lawyer, that's fine too, we can talk.
N.N: [While waiving his hand in a dismissive gesture] Ah, we can talk, Brian can end up dealing with it tomorrow.
[14] The interrogation proceeded from that point, with no further mention being made of the right to consult counsel. Although N.N. did not confess, during the course of the interview he did make several statements that, when combined with the evidence of the complainant, are incriminating in nature.
[15] Constable Cullen gave evidence on the voir dire into the admissibility of N.N.'s interrogation. He testified that after N.N. asked to speak with Mr. Crothers, he left the room in order to make efforts to contact him. He reported finding Mr. Crothers' office number, either by consulting a lawyer's directory or by conducting an online search. He initially called Mr. Crothers' office number, and a voice message at that number provided him with an "after-hours" number for Mr. Crothers, which he then called. Constable Cullen testified that he left a message for Mr. Crothers on the after-hours line. The gist of the message was that N.N. was under arrest, that he wanted to speak with Mr. Crothers, and included call back numbers for the Criminal Investigation Bureau at 12 Division.
[16] Constable Cullen testified that he felt it was reasonable to give Mr. Crothers a half-hour to call back after leaving the voice mail message. In his experience, late on a Saturday evening, that is usually how long it takes for a lawyer to respond to a message. As a result, at that point, he believed they had waited long enough and he decided to then offer N.N. the opportunity to call duty counsel, an offer that N.N. declined. By that point, Constable Cullen believed he had discharged his constitutional obligations in terms of respecting N.N.'s right to retain and instruct counsel.
[17] Constable Cullen conceded that he never offered N.N. the opportunity to wait longer for Mr. Crothers to call back. Nor did he offer N.N. the option of calling another lawyer other than duty counsel. Constable Cullen testified that had N.N. asked to do either of those things, he would have helped to facilitate his request. In that regard, he acknowledged that he had no concern about running out of time; this was not a situation of any urgency. He testified that because N.N. had no apparent difficulty expressing what he wanted, he did not feel obliged to go further and spell out the available options. In his view, once N.N. declined the chance to call duty counsel, he was free to proceed with questioning him. At that point, from Constable Cullen's perspective, N.N. had waived his right to speak with a lawyer.
[18] During cross-examination, it became apparent that Constable Cullen was not aware of the need to provide a so-called "Prosper warning" to a detainee who has previously asserted their right to counsel and who then indicates a desire to forego that right. In other words, he was not aware of the positive obligation on the police to tell such a detainee of their right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police not to question the detainee during that time period.
[19] It was also apparent from his evidence that Constable Cullen honestly believed that he had done everything he was required to do in order to facilitate N.N.'s contact with counsel.
III. The Positions of the Parties
[20] Defence counsel, Mr. Saini, argues that the police violated N.N.'s right to counsel as guaranteed by section 10(b) of the Charter. He submits that once N.N. invoked his right to counsel, by asking that Mr. Crothers be contacted, the police were obligated to hold off on questioning him until he had a reasonable opportunity to speak with Mr. Crothers. According to Mr. Saini, waiting only half-an-hour for counsel to call back late on a Saturday evening was unreasonable. The police should have waited longer, there was no urgency and N.N. had not failed in his responsibility to be reasonably diligent in his efforts to contact counsel.
[21] Mr. Saini argues that after invoking his right to consult counsel of his choosing, N.N. never validly waived that right. In that regard he argues that any purported waiver was defective because it was not informed. In so arguing, he emphasizes that Constable Cullen never complied with the requirements of R. v. Prosper, in terms of informing N.N. of his right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to elicit evidence from him.
[22] In terms of remedy, Mr. Saini argues that under each head of the analysis contemplated by R. v. Grant, the circumstances here require the exclusion of evidence regarding N.N.'s police interview.
[23] In contrast, for the Crown, Mr. Levan argues that there was no section 10(b) Charter violation in this case. He submits that N.N.'s failure to be reasonably diligent in exercising his right to counsel, specifically by declining the opportunity to speak with duty counsel, meant that the police were entitled to proceed with questioning him.
[24] Alternatively, should I decline to find that N.N. was not reasonably diligent; Mr. Levan argues that through his words and conduct, he effectively waived his right to counsel. Although Mr. Levan acknowledges that Constable Cullen did not use the precise words contemplated by Prosper, he contends that when one looks at the entire exchange the information required by Prosper was effectively imparted to N.N. In short, Mr. Levan argues that N.N. made a voluntary and informed decision to speak with the police without first speaking to counsel; hence, he waived his s. 10(b) Charter rights.
[25] Alternatively, if a Charter violation is found, Mr. Levan argues that an application of the factors from Grant favours the admission of the evidence. In that regard, he emphasizes that Constable Cullen acted reasonably throughout and that any breach was committed in good faith. In short, given that Constable Cullen was polite, professional and fair in his dealings with N.N., it would bring the administration of justice into disrepute if the evidence from his interrogation was excluded rather than admitted.
IV. The Right to Counsel: Law and Analysis
[26] The case law makes clear that when a person under detention or arrest asserts their right to counsel, for example by asking to speak with a lawyer when apprised of their s. 10(b) Charter rights, two police duties are triggered.
[27] First, police must provide a "reasonable opportunity" to exercise the right by giving detainees the means and the time necessary to talk to a lawyer. Second, police must refrain from or cease "questioning or otherwise attempting to elicit evidence from the detainee".
[28] Once the "reasonable opportunity" expires, however, police may proceed with questioning or otherwise eliciting evidence, regardless of whether a detainee has spoken to a lawyer. A person in detention must therefore be "reasonably diligent" in exercising his or her right to counsel. Otherwise, the Court has explained, they could unduly frustrate the ability of police to collect evidence that may not be available in perpetuity.
[29] It is also well established that section 10(b) of the Charter includes the right to consult counsel of one's choice. The Supreme Court made this clear long ago in R. v. Ross. In that case, two detainees were unable to contact lawyers of their choosing at 2:00 a.m. Before they were able to call their lawyers' offices in the morning, police placed them in an identification line-up. This violated section 10(b), the Court held, because detainees have a "right to choose their counsel". They are only expected to call another lawyer if their chosen lawyer "cannot be available within a reasonable time." The duration of this period, it suggested, might be shortened by circumstances of "urgency" or some other "compelling reason", but in this case the line-up could have easily been held "a few hours later".
[30] The Supreme Court of Canada recently reaffirmed its holding in Ross regarding the right to counsel of choice and its limits. In Willier, the Court made clear that what will qualify as a reasonable period of time will depend, "on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation".
[31] In short, the cases establish that all of the surrounding circumstances must be considered in deciding whether police provided a reasonable opportunity, or conversely, whether a detainee has been reasonably diligent in exercising his rights.
[32] Finally, in assessing how long the police can be expected to wait for a detainee to contact counsel of their choosing, the Supreme Court has suggested that the availability of free and immediate advice from duty counsel is a relevant consideration. At a certain point, after efforts to contact a specific lawyer have proven unsuccessful, the detainee will be expected to contact duty counsel or risk a finding that they were not reasonably diligent in the circumstances.
[33] Returning to the facts here, remembering all of the circumstances, I do not believe the police afforded N.N. a reasonable opportunity to speak with counsel of his choosing. In my view, it is not at all surprising that the police could not immediately get Mr. Crothers on the phone. After all, it was midnight on a Saturday evening. Given the day of the week and the time of night, one might expect that it would take more than a single phone call and longer than a half-hour to track down a particular lawyer.
[34] In the circumstances, the police should have made a greater effort to put N.N. in touch with the lawyer of his choosing. For example, the police could have called the number they had a second time and left a further message, they could have looked for Mr. Crothers' home phone number in the White Pages, and, at a minimum, they should have waited longer than half-an-hour for Mr. Crothers to call back. Here, there was simply nothing urgent about the circumstances the police were facing. N.N. was not going to be taken to court until the morning. Consequently, the police still had plenty of leeway; they could have waited an hour or two longer for Mr. Crothers to call back and still had an ample opportunity to carry out an interrogation.
[35] No doubt, once the police have discharged their obligation to make reasonable efforts to put a detainee in contact with their lawyer, the failure of the person detained to take up an offer to speak with duty counsel should be treated as a lack of reasonable diligence. In my view, however, that was not the situation here.
[36] In this case, the police had only placed a single phone call and waited less than half an hour to hear back from Mr. Crothers. To conclude that N.N., who had no access to a phone directory or a telephone, failed in his obligation to be reasonably diligent because he did not to take up the offer to speak with duty counsel only a half hour after he specifically asked to speak to Mr. Crothers, would, in my respectful view, run the risk of eviscerating the constitutional right to counsel of one's choice.
[37] To be sure, especially after hours, it will always be easier for the police to put a detainee in touch with duty counsel who are available through a 24-hour 1-800 number. However, before that option is presented as the only alternative, and a detainee who declines it is said to have failed to be "reasonably diligent", it is incumbent on police to first afford a detainee a reasonable opportunity to contact counsel of their choosing. In my view, by placing only a single phone call and waiting less than a half-hour on a Saturday night, the police failed to afford N.N. a reasonable opportunity to contact counsel of his choosing.
[38] Given my conclusion that N.N. did not fail in his obligation to be reasonably diligent, absent a waiver his right to consult with counsel of his choosing continued to operate.
[39] On behalf of the Crown, Mr. Levan argues that that is exactly what N.N. ultimately did; he waived his right to counsel. In that regard, Mr. Levan points to N.N.'s comment, in which he says, "we can talk, Brian can end up dealing with it tomorrow" as constituting a clear and unequivocal waiver by N.N. of his right to counsel. On their face, the words uttered by N.N. would seem to have that effect.
[40] However, the Supreme Court of Canada has made clear that once a detainee invokes his right to consult counsel and has been reasonably diligent in asserting it, yet has not managed to speak with counsel, any purported waiver must meet a high standard. According to Lamer C.J., who wrote for the majority in Prosper:
…an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. This additional informational requirement on police ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up.
[41] In this case, Constable Cullen never told N.N. that he had a right to a reasonable opportunity to contact Mr. Crothers and that the police were obligated to hold off on taking a statement from him until he had such an opportunity. Further, having examined the entire exchange between Constable Cullen and N.N., despite Mr. Levan's able submissions, I am not satisfied that what was said by Constable Cullen was an effective substitute for the required Prosper warning. Without the specific information required by Prosper, in my view, N.N. lacked the requisite informational foundation to validly waive his right to counsel.
[42] Accordingly, for all of these reasons, I have concluded that the evidence from N.N.'s interrogation was obtained in a manner that violated his right to counsel as guaranteed by section 10(b) of the Charter.
V. Section 24(2): Law and Analysis
[43] I must next consider whether or not the evidence regarding N.N.'s interrogation should be admitted or excluded under section 24(2) of the Charter.
[44] Following the analytical framework supplied by the Supreme Court in Grant, I am required to assess and balance the effect of admitting or excluding the evidence on society's confidence in the justice system, having regard to: 1) the seriousness of the Charter infringing state conduct; 2) the impact of the breach on N.N.'s Charter protected interests; and 3) society's interest in the adjudication of the case on its merits.
[45] In the end, I must balance my assessment of each of these considerations in order to determine whether, considering all of the circumstances, the admission or the exclusion of the evidence would bring the administration of justice into disrepute.
(a) Seriousness of the Charter Infringing State Conduct
[46] I begin by assessing the seriousness of the Charter infringing state conduct. In this case, the evidence fell short of establishing that the breach was deliberate. Far more likely, in my view, is that Constable Cullen simply did not appreciate the extent of his Charter obligations as they relate to the police duty to facilitate a detainee's right to consult with counsel of their choosing. Further, it was abundantly clear from the evidence that the officer was completely unfamiliar with his obligation to provide a Prosper warning.
[47] All of that said, it is not my intention to single out Constable Cullen, who impressed me as a conscientious police officer. Rather, I suspect his lack of awareness was most likely the result of inadequate training. This does not however substantially mitigate the seriousness of the resulting Charter violation. As the Supreme Court made clear in Grant, "ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith". This is because the police "are rightly expected to know what the law is".
[48] Given all of this, placing the violation in this case along a spectrum, with the minor and technical at the one end, and the wilful Charter violation on the other, I would place the breach in this case on the more serious side of the spectrum; albeit not at the far end, where one would find cases involving deliberate violations.
(b) Impact on the Charter Protected Interests of the Accused
[49] I am next required to consider the impact of the violation on N.N.'s constitutionally protected interests. "The more serious the impact on the accused's protected interests," the majority in Grant noted, "the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute."
[50] In this case, the breach of N.N.'s section 10(b) Charter right undoubtedly impacted on his constitutionally protected interests, depriving him of the opportunity to make a fully informed choice whether or not to give a statement and thereby implicating the related right to silence and the protection against self-incrimination.
[51] That said, these affects are somewhat attenuated in this case because N.N. was clearly told of his right to choose whether or not to speak to the police. He was also specifically warned that anything he said could be used in evidence against him. Consequently, before speaking with Constable Cullen, N.N. already possessed some of the essential information a defence lawyer would have provided.
[52] Nevertheless, the common law cautions are a poor substitute for the sort of forceful partisan advice a detainee will invariably receive from defence counsel. In the circumstances, it seems rather likely that if N.N. had the opportunity to speak with his lawyer he would have declined to make a statement. After all, in requesting to speak with Mr. Crothers, N.N. specifically said: "I'll ask him what to do." As a result, there would appear to be a direct causal relationship between the Charter breach and the self-incriminating evidence that is the subject matter of this application.
[53] Given all of this, I conclude that the breach in this case had a significant impact on N.N.'s Charter protected interests.
(c) Society's Interest in an Adjudication on the Merits
[54] I must next consider society's interest in having this case adjudicated on its merits. In that regard, I am required to consider whether truth seeking would be better served by the admission or the exclusion of the evidence.
[55] The goal of truth seeking would appear to be best served by admitting all available and relevant evidence. At first glance, this would seem to include N.N.'s statements to police. Especially given that there was nothing at all oppressive or overbearing about Constable Cullen's approach to questioning N.N. However, based on judicial experience, the Supreme Court of Canada has cautioned that an accused's statements to police are not inherently reliable evidence. As the majority explained in Grant:
Detained by the police and without a lawyer, a suspect may make statements that are based more on a misconceived idea of how to get out of his or her predicament than on the truth. This danger, where present, undercuts the argument that the illegally obtained statement is necessary for a trial of the merits.
Because of this, when it comes to unconstitutionally obtained statements the goal of truth seeking will often favour exclusion.
[56] Another relevant consideration is the importance of the evidence to the Crown's case. For example, the exclusion of highly reliable evidence that would effectively serve to gut the prosecution's case is a factor that weighs in favour of admitting the evidence. As noted, the evidence at issue here is not inherently reliable. In addition, its exclusion is unlikely to deliver a fatal blow to the prosecution's case, which appears to rely mainly on the evidence of the complainant. These considerations would therefore also tend to favour exclusion.
(d) Conclusion Regarding Section 24(2)
[57] In the end, after considering the three lines of inquiry contemplated by the Supreme Court, which reflect all the circumstances of the case, in deciding whether or not to admit or to exclude the evidence, I am to balance the interests of truth seeking with the need to maintain the long-term integrity of the administration of justice.
[58] In this case, after considering the serious nature of the violation and the impact on N.N.'s constitutionally protected interests, while also remembering society's interest in an adjudication on the merits, I believe that exclusion of the evidence would better serve the long term repute of the administration of justice.
[59] In short, there is simply nothing about the circumstances of this case that warrant making it an exception to what the Supreme Court contemplated in Grant, that being: "the presumptive general, although not automatic, exclusion of statements obtained in breach of the Charter".
VI. Conclusion
[60] The defendant's application is granted. N.N.'s interrogation, including both Constable Cullen's viva voce testimony and the DVD recording, are ordered excluded from evidence.
Stribopoulos J.