Court File and Parties

Court File No.: 13-A15237 Date: December 1, 2015

Ontario Court of Justice

(Central East Region)

B E T W E E N:

Her Majesty The Queen

N. Trbojevic, Counsel for the Crown

- and -

D. A.

M. McRae, Counsel for the Defendant

HEARD: January 22, 2015, June 8, 2015, July 22, 2015 and September 10, 2015

Judgment on Charter Application

BLOCK, J:

Facts and Background

[1] On October 25, 2013, Ms. Rosalie Morgan, a social worker with the Children's Aid Society reported to Constable Myers of the Durham Regional Police an allegation that D. A. had sexually assaulted his 15-year-old half-sister. This report initiated a criminal investigation by Detective Colin Rose. He reviewed Ms. Morgan's initial report, met with the complainant and her mother, and requested Peterborough Police arrest D.A. for sexual assault and sexual interference. The defendant was arrested on December 19, 2013.

[2] Counsel for D.A. argues that the police failed to facilitate the defendant's contact with counsel of choice and therefore breached section 10(b) of the Charter. He argues that his client's inculpatory statement to Detective Rose should be excluded from the evidence at trial pursuant to section 24(2). I grant the application for the reasons that follow.

Evidence Regarding the Defendant's Vulnerabilities

[3] As of her testimony on September 10, 2015 Ms. Morgan had worked as a Children's Service Worker for the Children's Aid Society for 26 years, 14 of them with the Durham CAS. She had been working directly with D.A as his CSW since 2007. She was familiar with the psychological assessments of D.A., his many deficits and his family life. She was aware that his developmental age was in the range of 12 to 13 years, principally because he suffered from Fetal Alcohol Syndrome.

[4] Ms. Morgan was a reliable and impartial witness. She brought her client's alleged misconduct to the attention of the Durham Regional Police. She facilitated contact between Detective Rose, the complainant and her mother. I accept her evidence that, as requested by Detective Rose, she did not disclose his impending arrest to D. A.. The notes of some of her interactions with police were not up to the standard of a competent investigator, but they were superior to the notes of the Peterborough police officers involved in this matter. As the events associated with this matter were quite unusual, I had no difficulty accepting her recall of some details that were unrecorded in her notes.

[5] Ms. Morgan exerted herself in her attempts to collaborate with police in this matter. She told Constable Myers, in her initial report on October 25, 2013, about D.A.'s developmental delay issues as well as his functional age level. On November 5, 2013 she left Detective Rose a message containing the contact information for both D.A. and his mother. On November 6, 2013, during a regular appointment, she informed the defendant that she provided his contact information to police and advised him of a potential police interview. Ms. Morgan and Detective Rose first had a telephone conversation on December 3, 2013, though there had been a number of messages left by both. Despite her efforts, December 3, 2013 was the sole direct contact they had between October 25, 2013 and the day of the arrest of D.A., December 19, 2013. She briefed detective Rose about the defendant's Fetal Alcohol Syndrome, developmental delay and child-like functioning. Ms. Morgan told Detective Rose that she wanted to be present when the defendant was arrested. She wanted to professionally support her long-standing client, act as the responsible adult present and facilitate post-arrest consultation between D.A. and Mr McRae. Mr. McRae had represented the defendant before and Ms. Morgan knew him to be familiar with the difficulties involved in communicating with D.A.

[6] The reason for Ms. Morgan's exertions is obvious. The defendant's developmental delays and Fetal Alcohol Syndrome created a profound communication difficulty for both the defendant and police authority on arrest and detention. The defendant's social skills and accommodating posture with authority would likely leave the completely false impression that he understood a routine recitation of his right to counsel and caution and that he waived their exercise.

[7] A passage from Ms. Morgan's evidence of September 10, 2015 illustrates the extent of the defendant's deficits:

Q. Okay, how would you describe his memory?

A. Can I use scales?

Q. Yes.

A. Am I able to? If on a scale of 1 to 10, I would say about 3

Q. Okay, how would you describe his judgment?

A. Probably a 4

Q. In your experience, if you're trying to communicate sort of higher level ideas to D., how will he behave? If he's having trouble understanding, will he tell you that?

A. No, he doesn't

Q. So what does he do?

A. He will nod. D. says yes to basically everything. . . . D. tends to look for others for guidance. So I can usually notice that blank stare on his face and I use a lot of repetition with D., a lot of visuals with D. You have to go over things with D. two or three times.

Q. So if you explain something to him and he's nodded and smiled along and then you asked him to explain it back to you, what do you think the likelihood of success is?

A. Twenty, thirty percent.

Transcript of September 10, 2015 pages 7, 8

[8] Ms. Morgan told the court that the defendant requires 20 hours a week of personal support to work with him on meal planning, medical appointments, school work and attendance. Though he was 20 at the time of trial, D.A. still required considerable support by the Children's Aid Society.

Police Conduct at Arrest

[9] Ms. Morgan's efforts to provide D.A. with appropriate support at the time of his arrest came to naught, though Detective Rose did reference the defendant's "learning disability" on the CPIC message, sent at 3 PM, December 19, 2013, requesting that the Peterborough Police arrest the accused.

[10] Approximately one hour later Constable White of the Peterborough Police Service arrested D.A.. I do not draw any significance from an utterance he then made to the effect that he was expecting police. As listed by Mr McRae in his written submission, there are a large number of potential reasons for that statement. Given D.A.'s deficits, it would be surprising if any amount of forewarning could properly prepare him to deal with the issues of consulting counsel or his right to silence in advance of his arrest.

[11] Constable White cautioned the defendant and provided him with his rights to counsel. She had had previous contact with him in her former job as a group home worker. She knew he functioned as a "lower than average level". She read the rights to counsel from the printed form on the back of her police officers memo book. Once she read the preprinted form D.A. said he understood and requested duty counsel. She believed that was so because she went over the advice a second time to make sure that the defendant understood that anything he said could be used against him. She believed that simple instructions, repeated several times, would be understood by D.A.. Ms. Morgan, in contrast, as a result of her long experience with the defendant, had him repeat instructions back to her several times to make sure he understood.

[12] Constable White did not recall the words she used in repeating D.A.'s rights to counsel. She had no notes of the words used by the defendant. She could not recall if he asked for his own lawyer. She did not recall D.A.'s response when asked if he understood the right to counsel.

[13] Sgt. Fitzgerald booked the defendant at the Peterborough police station. He noted the CPIC indication of the defendant's learning disability. As a result, He repeated the right to counsel. Although he received monosyllabic answers to the informational component of the rights to counsel, Sgt Fitzgerald testified he was confident in the defendant's comprehension throughout the exchanges. He took no steps to determine the defendant's level of comprehension. He stated that D.A. said he wanted speak to his own lawyer. He didn't know the lawyer's name or contact information but that his CAS worker, Rosalie Morgan did. Sgt. Fitzgerald delegated to Constable White the implementation of D.A.'s contact with counsel of choice. He did not know what, if any, steps were taken by Constable White or whether she had told him any of the steps she had taken.

Failure to Facilitate Contact with Counsel of Choice

[14] A message was then left with the CAS duty desk. Since the police had no contact information or name for counsel, they arranged for D.A. to speak to duty counsel. That call took place between 4:43 and 4:47 PM. The defendant acquiesced in this procedure.

[15] Sgt. Fitzgerald was not aware that the defendant suffered from Fetal Alcohol Syndrome. He was not aware that D.A. functioned at the level of 12 or 13-year-old. There was no evidence that any of this information was communicated to duty counsel on the other end of that 3 to 4 minute conversation with D.A.. In cross-examination it became clear that Sgt. Fitzgerald had no specific information concerning the charges that the defendant was facing in Durham region. Neither he nor anyone else in contact with the defendant in Peterborough was able to communicate with D.A. in a meaningful way regarding the specific allegations against him.

[16] In these circumstances there could have been no meaningful communication with duty counsel.

[17] Before Mr. D.A. was transferred into the custody of Durham regional police, Ms. Morgan responded to the message left with the CAS duty desk and called the Peterborough police station to provide D.A. with Mr. McRae's telephone number. She was told that she could not speak to him as he was already lodged in the cells.

[18] During the transfer no information was provided to the Durham Regional Police regarding the implementation of right to counsel. D.A. was never told that he still had an opportunity to speak to counsel of choice. No one in authority seemed to have contemplated informing the accused that the police would not question him until he had spoken to his counsel of choice. It is in these circumstances that D.A.'s response to the Charter advice offered by the Durham Regional Police Constable transporting him to 17 Division should be viewed. When given his rights to counsel by that officer D.A. stated that he had spoken to duty counsel and that "he was good". Given his limitations and the multiple errors made in the provision of his right to counsel of choice to that point, his comments could hardly be considered informed waiver.

Interview with Detective Rose

[19] At 8:40 AM on December 20, 2013 D.A. encountered Detective Rose. The detective neither had, nor sought, any meaningful information regarding the Peterborough Police compliance with Charter obligations during the previous 16 hours. Detective Rose did nothing to address the issue of counsel of choice prior to questioning D.A. regarding the allegations. He asked D.A. if he had spoken to duty counsel and received a reply that he had and did not wish to repeat that contact. He told D.A. that he could still speak to duty counsel if he wished. He then interviewed the defendant and received the evidence at the centre of this application. I do not doubt the evidence of detective Rose that D. A. appeared compliant and apparently content. However, Detective Rose had been warned of D.A.'s deficits several weeks before by Ms. Morgan. He knew or ought to have known that he could not rely on routine Charter-related communication with the defendant.

[20] In his evidence detective Rose indicated that he wasn't familiar with Fetal Alcohol Syndrome or its effects. The detective testified that he had been informed of that condition, D.A.'s delayed development and that he functioned at the level of a 12 or 13-year-old by Ms. Morgan. Detective Rose disagreed with those assessments. As a result of his talk with D.A.'s mother and, to a lesser extent, his perusal of a police brief for an unrelated matter, Detective Rose believed the defendant functioned as a higher level.

Analysis and Findings

[21] This conclusion seems to have been the reason for the failure to involve Ms. Morgan in the process of arresting D.A.. It may be the reason why so little information was given the Peterborough Police Service in the request to them to arrest the defendant. It may also be the reason why Detective Rose was indifferent to the exercise of the defendant's right to counsel of choice. Detective Rose preferred the diagnosis of the defendant's mother, which minimized the damage caused by her own alcohol abuse, to the evaluations of medical professionals and seasoned social workers reported to him by a CSW with 26 years of experience. This was an entirely unreasonable conclusion. It underlay the routine treatment of a vulnerable accused whose disabilities required unusual handling. An inculpatory statement was the direct result. The police conduct was a serious violation of s. 10(b) of the Canadian Charter of Rights and Freedoms.

In the circumstances of this accused, the state misconduct in frustrating D.A.'s assertion of his desire to speak to counsel of choice was very serious. The police have been told of the nature and severity of the defendant's disabilities some eight weeks prior to the arrest. Ms. Morgan was diligent in directing police to the core issue engaged in the arrest of D.A.: his incapacity to understand legal advice and make rational decisions without the assistance of persons familiar with the special methods required to communicate with him. The police willfully disregarded this advice.

[22] The effect on D.A.'s Charter-protected rights was significant. A confession was produced as a direct consequence of the misconduct.

[23] I must now consider the effect of potential exclusion on society's interest in the determination of this case on the merits. This is not a case where real evidence has some connection to a technical breach. This is a statement produced by, at very least, indifference to the profound vulnerabilities of the suspect. Here there is more than a hint of convenient, blithe and deliberate adherence to routine. In my view, the public interest in fair investigation requires the exclusion of a confession extracted as a result of a deliberate or unreasonable refusal to accommodate a suspect with special needs.

Justice M.S. Block Ontario Court of Justice