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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 212, 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

(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) 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

Ontario Court of Justice

Date: 2018-09-19

Court File No.: Kitchener Info #16-3633

Between:

Her Majesty the Queen

— AND —

R.L.

Before: Justice Scott Latimer

Heard on: September 12, 2018

Reasons for Decision released on: September 19, 2018

Counsel:

• B. Thomas, counsel for the Crown
• B. Smart, counsel for R.L.

Decision

LATIMER J.:

I. Introduction

[1] On September 12, I heard evidence and submissions with regard to the admissibility of a statement obtained following an accused person's arrest. On the very same day, the Court of Appeal released its reasons in R. v. Rover, 2018 ONCA 745. In that judgment, Justice Doherty succinctly articulated why the section 10(b) right matters:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated. (para. 45)

[2] These words apply here.

R.L. has applied, under section 24(2) of the Charter, to exclude a post-arrest statement he provided to the police on the basis of an alleged violation of his section 10(b) right. The Crown resists the application and seeks to admit the statement as voluntary. On September 12, 2018, I heard evidence on both motions in a blended fashion. For ease of reference, I will refer to R.L. as the applicant; I am aware that there are different burdens at play. At the close of submissions, I advised that the statement was excluded and my reasons would follow. These are those reasons.

II. The Evidentiary Record

[3] On June 7, 2016, Detective Richmond of the Waterloo Regional Police Service determined that she had grounds to arrest the applicant for sexual assault and sexual interference. She contacted him to set up a time that he could turn himself in. He agreed, but wanted to make arrangements to have "representation". Detective Richmond advised that a lawyer could attend and sit in on the interview, but a union representative could not. The next day, a lawyer contacted the officer to begin a dialogue. The applicant's lawyer was advised of the general charges, but not the specific allegations or the complainant's name. He was told that it was a student/teacher situation. I note that the applicant was a vice-principal of a local public school at the time. The lawyer asked if the applicant needed a surety, and the officer said no. The lawyer advised that he could not attend court the next day, but would have another lawyer present. On June 9, the lawyer left the officer a message advising that the applicant would turn himself in on the following day, and that a local lawyer would be present to address the matter in court.

[4] On June 10, the applicant arrived at the police station early in the morning and was arrested. He was read the standard rights to counsel and primary caution. With regard to his rights, he advised the officer that he understood. He was asked if he wished to call a lawyer "now", and answered "no". He also indicated that he understood the primary caution. He was subsequently booked and taken to an interview room. He was told, or made to understand, that he would be going to court after his police interview, which began shortly thereafter.

[5] I have watched the video of the interview, and have had the benefit of an accompanying transcript. I have reviewed this evidence several times. I do not intend to exhaustively review the interview procedure, although I am aware of it and have considered its entirety during these reasons.

[6] The officer begins, on page 3, by reiterating what occurred earlier during the arrest, regarding the rights to counsel. The applicant nods when she indicates to him that she read his rights, and that he declined to call a lawyer "right now". The officer also indicated that a caution was read, and that the applicant was told in that caution that he didn't need to speak to the police "about what happened", but if he did it could be used as evidence against him. The applicant agreed.

[7] Immediately after this exchange, the applicant is told the name of the complainant. He is asked about their relationship, but responds "I think what I'm going to do is … I'm gonna be fully cooperative, but at this point I'm gonna just choose the right to remain silent until I can go over stuff with [my lawyer]". The officer responds, "Okay. You know (the complainant)?"

[8] A series of questions followed regarding the applicant's relationship with the complainant. On page 8, the applicant asks, "Is this going outside of my right to silence now?" The officer responds that she wants to get his side of the events, but cannot tell him whether to speak to her or not, because it would be "inappropriate". She says she can talk to him and ask questions, and he can "elect as to what you want to do, right"? The applicant responds, "Well, I'm feeling like these questions are going on and I'm not supposed to be answering them until I talk to Mike cause I don't know what the details are. I'm a little shocked at the questions too, in terms of the situation". The officer thereafter continued asking questions about the relationship between the parties. The applicant indicates in one answer, "I'd like to stop talking now", but the officer does not respond, continuing on with investigative questions.

[9] At page 15 of the interview, the applicant states, "I really feel like I shouldn't be talking about stuff anymore because I don't know where you're going with the questioning and I really need to have Mike here because I don't know what's going on at this point." The officer responds, "Okay. Has there been ever any sexual touching between the two of you?" The applicant responds, "I'm gonna use my right to silence right now. And it's not because – like, I wanna be fully cooperative but I need…" The officer then interrupts the applicant's thought, asking "have you ever touched him sexually?" The applicant replies that he is not going to say anything else, as he needs "Mike to let me know how to deal with this allegation": see page 16 of the transcript. In my view, even standing alone, this statement amounts to an exercise of the right to counsel. But there is more.

[10] At the bottom of page 18, the applicant states that he would like to remain silent until he gets counsel. Questioning nevertheless continues. The interview moves to evidence that is in police possession, such as text-based communications. Lengthy passages are read to the applicant. Thereafter, on page 22, the applicant refers to his right to silence three times in short succession. Detective Richmond continues reading text message exchanges. At the end of her review, at page 26, the applicant tells her that he is receiving too much detail, and that he needs to remain silent until he can talk to counsel and go over this new information.

[11] At page 29 of the interview, the officer asks for the applicant's version of events. He responds that he would like to do that with his lawyer present, and does not want to speak about the text messages until he has "Mike's counsel". This is, again, a sufficiently clear articulation of a desire to consult with counsel. The same answer is provided later, on pages 31-32, where the applicant advises that he is going to wait until "Mike is here to talk and give me some counsel". On page 33, the applicant tells the officer he is intending to be fully cooperative, but he "just needs Mike to be here". At no point does the officer take any steps to facilitate access to counsel. The interview continues and, eventually, inculpatory admissions are obtained. The applicant is thereafter removed from the interview room and taken to bail court.

[12] The officer testified on the application. She advised that her understanding at the time was that the applicant wished to speak to counsel, but only at a later date. She agreed that there was no particular urgency to the interview process. She acknowledged that he may not have fully understood his right to silence.

[13] The applicant also testified, indicating that he had been told by his lawyer that he should be cooperative and civil with the officers, and that he had a right to silence, and that he should not answer questions that "pertain to any allegations". During the interview, he attempted to assert the right, but felt like he was being ignored and his requests to speak to his lawyer unacknowledged. Eventually, he concluded that the interview would continue - and he would remain in custody - until he answered the officer's questions. He did not know the extent of his right to silence, and needed legal assistance once he learned specific information about the charges. He tried to ask the officer for access to his lawyer, but she did not provide it.

III. Section 10(b) of the Charter

[14] Access to legal counsel is a fundamental right in Canada. Following arrest, citizens are in legal jeopardy and a profoundly vulnerable situation. The constitutional right to counsel "is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination": see R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, 245 C.C.C. (3d) 112, at para. 40; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, 259 C.C.C. (3d) 536, at para. 28.

[15] Justice Doherty, writing for the Court of Appeal in R. v. Devries, 2009 ONCA 477, 244 C.C.C. (3d) 354, summarized the scope and nature of the section 10(b) right in paragraph 21 of the judgment:

Section 10(b) contains two distinct rights. First, it obligates the police to inform a detainee of his or her right to speak with a lawyer without delay. Second, it guarantees the right of a detainee to retain and instruct counsel. If a detainee chooses to exercise that right, the police must provide the detainee with a reasonable opportunity to do so and must refrain from questioning the detainee or otherwise eliciting evidence from the detainee until he or she has had a reasonable opportunity to counsel with counsel.

[16] The section 10(b) right is not absolute — the police implementation obligations are only triggered upon some positive activity on the part of the applicant, amounting to invocation of the right and reasonable diligence in exercising it. Absent such activity, "police duties to provide a reasonable opportunity to consult counsel and to refrain from soliciting evidence will either not arise in the first place or will be suspended. Once a trial judge determines that the police have complied with their informational obligation, the next question is whether an applicant has invoked or exercised his or her right, and thereby triggered implementation duties, such as providing a reasonable opportunity to consult with counsel of choice: see R. v. Owens, 2015 ONCA 652, 127 O.R. (3d) 603, at paragraphs 22 to 27.

[17] With regard to the present case, context is important. The applicant had a lawyer. Detective Richmond knew who that lawyer was. She had the lawyer's phone number, and had previously spoken to him. The officer and the applicant seemed to agree on video that he earlier declined access to his lawyer at a certain point in time; that is, at the time of the arrest, or "now". The number of times the applicant later referenced wanting to speak to his lawyer, and having his lawyer "here", amounted – both individually and collectively – to positive activity and an invocation of the right to counsel. I make that finding of fact. At the very beginning of the interview, the applicant learned new information that had been withheld at the time of his initial post-arrest decision not to contact counsel. After learning the complainant's name and some of the other factual details surrounding the allegations, he expressed a desire to have contact with his lawyer. The officer continually failed to avert to these requests and implement such contact. The language used by the applicant – a novice participant in the criminal justice system – while imperfect, was sufficient, in content and quantity, to get across his desire to speak to counsel. In the circumstances of this case, the officer's failure to respond to these continued requests amounts to a section 10(b) violation.

IV. The Right to Silence Issue

[18] Given my Charter ruling, the voluntariness issue becomes largely academic. I decline from coming to a firm conclusion on this issue. I will say, however, that legitimate issues have been raised by the defence on this record. In R. v. Rybak, 2008 ONCA 354, 233 C.C.C. (3d) 58, the Court of Appeal stated the following at paragraph 190 of their judgment:

A lengthy interview, coupled with repeated refusals to answer some questions without first speaking to a lawyer, mandate close judicial scrutiny of the admissibility of the record of interview. R. v. Roy (2003), 180 C.C.C. (3d) 298 (Ont. C.A.), 303-4. In the end, what must be decided is whether the conduct of the state authorities denied the appellant the right to choose speech or silence, or deprived him of an operating mind. Hebert at 184; Singh at para. 46.

[19] While the applicant's interview was not nearly as long as those in Rybak and Roy, there were other aspects that are plainly relevant to a voluntariness/s.7 inquiry. The applicant testified that he did not fully comprehend his right to silence. I accept his evidence on that point. Indeed, in cross-examination, Detective Richmond acknowledged believing that the applicant was so confused. A lawyer, of course, would have been the ideal person to dispel his confusion. As I have already found that the applicant was trying to obtain access to counsel, the officer's failure to implement that access further impaired his comprehension of his legal rights. This reality exacerbates the seriousness of the Charter violation. The Crown's acknowledgment that the s. 10(b) violation could not be saved under s. 24(2) is well founded.

V. Disposition

[20] Pursuant to s. 24(2) of the Charter, I am excluding R.L.'s statement from admission at his trial.

Released: September 19, 2018

Signed: Justice Scott Latimer