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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 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.

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.

ONTARIO COURT OF JUSTICE

CITATION: R. v. Gibson, 2019 ONCJ 131

DATE: 2019 03 11

COURT FILE No.: 17-11569

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JAMIE GIBSON

Before Justice G.L. ORSINI

Heard on January 23 and March 6, 2019

Ruling on Admissibility of Statement

Mr. J. Carnegie..................................................................................... counsel for the Crown

Ms H. Bracken..................................................... counsel for the accused Jamie Gibson

ORSINI J.:

Introduction

[1] This is my ruling with respect to an Application to exclude a videotaped statement given by the Mr. Gibson (hereinafter “the Applicant”) following an alleged breach of his right to counsel.

[2] Counsel for the Applicant concedes the statement was voluntary.

[3] The Applicant is charged with two counts of possessing child pornography. It is alleged that he possessed a cell phone which contained pornographic images of a child. The photographs were discovered when the cell phone came into the possession of a third party.

[4] The Court heard from four officers who were involved in the arrest, transportation and interview of the Applicant.

[5] The Applicant chose not to testify.

Evidence

[6] The Applicant was arrested following the execution of a search warrant on his home on October 13, 2017 at approximately 6:30 AM.

[7] At the time of his arrest, he was provided with his right to counsel and primary caution by Detective Wright. He indicated that he understood his right to counsel and caution but that he didn’t know if he wanted to call a lawyer.

[8] Constable Wright, advised him that if he wished to call a lawyer at any time he could do so. She told him that all he had to do was let her know.

[9] Upon his arrival at the London police station, the Applicant advised the booking officer that he did not wish to exercise his right to counsel.

[10] At approximately 10:51 AM, Detective Wright commenced a videotaped interview with the Applicant. It is this interview which the Applicant seeks to exclude.

[11] Immediately after entering the room, Detective Wright confirmed what the Applicant had told the booking officer about not wanting to speak to counsel. She asked him if he was “still okay with that”. He replied, “Yeah, ‘cause I didn’t do any of that shit”. Detective Wright then provided him with the secondary caution.

[12] After interviewing the Applicant for 27 minutes, Detective Wright exited the room.

[13] The Applicant remained alone in the interview room for approximately 13 minutes before Detective Fair entered the room and continued the interview. It is this portion of the interview that the Applicant takes issue with.

[14] Shortly after entering the room, the following exchange occurred between the Applicant and Detective Fair:

Detective Fair: Now, you know that you can call a lawyer?

Jamie Gibson: I, I never even knew what a lawyer is.

Detective Fair: You don’t know what a lawyer is?

Jamie Gibson: Like I, I never had to be – like call a lawyer or anything.

Detective Fair: Okay.

Jamie Gibson: I don’t know one.

Detective Fair: Right. But you understand your rights? That you can call a lawyer if you want one, right? Do you usually shake like that?

Jamie Gibson: No, it’s just part of like me withdrawing from all the narcotics like and being in a cold environment.

[15] The Applicant then discussed his prior drug use before Detective Fair redirected the conversation back to the issue of rights to counsel:

Detective Fair: …I’m just going to go back to, do you remember the sergeant asking you if you want to call a lawyer?

Jamie Gibson: Yeah.

Detective Fair: Okay.

Jamie Gibson: But like does this mean like I’m actually like going to jail right now and I need to call a lawyer to go to court?

Detective Fair: No, it’s, it’s you call a lawyer for some free legal advice – to give you some advice in relation to what you’ve been arrested for. So, you could call the 1-800 number for free legal advice. You’re under arrest right now.

Jamie Gibson: And then I got a call a lawyer?

Detective Fair: You don’t have to call a lawyer. That’s your choice whether you want to call a lawyer or not.

Jamie Gibson: Then what do you guys suggest?

Detective Fair: I can’t suggest to you.

Jamie Gibson: Oh, I see…

Detective Fair: When the sergeant asked you, there is a list of free local lawyers, right, you know that? And then there is a 1– 800 number that you could call, - so – and you decided you didn’t want to call a lawyer.

Jamie Gibson: Like I don’t- what I mean is, I’ve never been in the situation in my whole life… So I don’t understand- like I don’t know what’s what I don’t, I don’t know what I’m – like I never been in – like I don’t know what you’re supposed to do in my case. Like I don’t.

Detective Fair: Right. Okay. But that’s up to you. So I just want to make it clear to you that you have the option to call a lawyer for free legal advice if you want to, okay?

Jamie Gibson: Okay. Then I’ll call them and ask them.

[16] Detective Fair testified as to his understanding of this last statement from the Applicant. In his mind, the Applicant was making a statement about contacting a lawyer as opposed to a request. As a result, he sought to clarify the matter as indicated in the following exchange:

Detective Fair: Do you want to call them now or do you want to wait or do you want to wait till you get out of here or…?

Jamie Gibson: I’ll wait till I get out of here and try like – like that’s what I mean I don’t know like – okay, okay, so when I get out of here I’m probably going to court then?

Detective Fair: There is a possibility of that.

Jamie Gibson: Yeah, yeah, okay.

Detective Fair: So there is an investigation coming out.

Jamie Gibson: Now, when you go to the court place, yeah, when you go to the court place, you go – like is it, um, do you get like the lawyer there?

Detective Fair: Well, when – what happens is, I’ll take you through the process, right?

Jamie Gibson: Yeah, yeah. I’m really sorry to all of you guys, I just – I’m serious that I don’t know what to do.

[17] Ultimately, Detective Fair stated the following:

Detective Fair: All right. So I want you to clearly understand that at any time that you feel that you want to call a lawyer, you just have to tell me that.

Jamie Gibson: Okay.

Detective Fair: Okay? Do you understand that?

Jamie Gibson: Yeah.

Detective Fair: So it is – it’s out there that if you need to call a lawyer at any time while you’re here I can put you in touch with a lawyer of your choice or that 1-800 number and it’s all free, okay?

Jamie Gibson: Okay.

Detective Fair: And they can give you advice.

Jamie Gibson: Can I get it written down on paper?

Detective Fair: Yeah, we can write it down on paper for you and that. I already have your number and that. You could call yourself too if you want.

Jamie Gibson: Oh, and then I could ask some questions?

Detective Fair: Absolutely.

Jamie Gibson: okay

Detective Fair: And that could take place any time here.

Jamie Gibson: Okay.

[18] Detective Fair continued interviewing the Applicant for approximately 20 minutes before the right to counsel issue resurfaced once again. At that point, the Applicant stated the following:

“Either which way I’m going to court, so I’m going to have to call a lawyer.”

[19] Again, Detective Fair testified as to his understanding of what the Applicant meant. In his mind, the Applicant was once again making a general statement about having to contact a lawyer as opposed to a making a specific request to speak to counsel at that moment. He testified that he would have left the room and facilitated contact with counsel had he thought that was what the Applicant had requested.

[20] At the same time, he acknowledged he did not seek to clarify the Applicant’s intention, as he had on the previous occasion. He quite candidly admitted, in retrospect, that he should have done so.

Position of the Parties

[21] The Applicant’s counsel submits that the Applicant had changed his mind and had clearly invoked his right to counsel when he first stated, “Okay. Then I’ll call them and ask them.” Counsel submits that Detective Fair was legally obligated at that time to terminate the interview and facilitate contact with counsel.

[22] In response, the Crown submits that the officer was entitled to clarify whether the Applicant wished to contact counsel immediately or at some later time. Having done so, the Crown submits that Detective Fair was entitled to continue with the interview given the Applicant’s response.

[23] With respect to the statement “Either which way I’m going to court, so I’m going to have to call a lawyer”, the Applicant’s counsel submits this was the second time that the Applicant had invoked his right to counsel and that Detective Fair breached that right a second time by continuing with the interview without first facilitating contact with legal counsel.

[24] The Crown submits that this statement must be considered in the context of the entirety of the interview. The Crown submits that, standing alone, the statement evidences the Applicant’s future intention to contact counsel. The Crown submits that this interpretation is all the more reasonable when considered in light of the Applicant’s previous stated intention to contact counsel following his release.

Law

[25] In my view, the issue to be decided is whether the Applicant had invoked his right to counsel.

[26] As indicated by the Ontario Court of Appeal in R v. Owens, 2015 ONCA 652, [2015] O.J. No. 4972 at para. 20, “The law requires a properly informed detainee to invoke his or her right to counsel before any implementation duties on the part of the police are triggered”. The court went on to state the following at paragraph 25 :

“Absent invocation of the right to counsel and reasonable diligence in its exercise by the detainee, 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.”

(see also R v. Sinclair, 2010 SCC 35 at Para 27)

[27] As indicated by Rosenberg J.A. in R v. Backhouse (2005), 1994 C.C.C. (3d) 1 (Ont. C.A.) at para. 77-78, whether the Applicant had invoked his right to counsel is a question of fact.

[28] Once the right to counsel has been invoked, the onus shifts to the Crown to prove that a detainee has unequivocally waived this right. While the standard required for an effective waiver is said to be “very high”, the issue can only arise after the right has been invoked. (R v. Prosper, [1994] 3 S.C.R. 235 at pp. 274-275)

[29] The onus is clearly on the Applicant to demonstrate on a balance of probabilities that he invoked his right to counsel and was reasonable diligent in its exercise. (R v. Owens, supra at para. 22; and R v. Backhouse, [2005] O.J. No. 652 at paras 22, 28)

Analysis

[30] Having reviewed the videotape of the interview itself, as well as the circumstances leading up to it, I am of the view that the Applicant had not invoked his 10(b) Charter right to consult with counsel at any point during the interview.

[31] The Applicant does not contest that he understood his right to counsel. This was confirmed at the time of his arrest and subsequently during the course of the interview. At the time of his arrest, he was uncertain as to whether he wished to speak to counsel. Once at the police station, he advised the booking officer that he did not wish to speak to counsel. This was further confirmed by Detective Wright at the commencement of the interview. At no time during the course of his dealings with Detective Wright had the Applicant ever expressed a desire to speak to counsel.

[32] The right to counsel only becomes an issue when it is raised a fourth time by Detective Fair. Having already expressed a considerable degree of uncertainty as to whether he would call a lawyer, the Applicant says, “Okay. Then I’ll call them and ask them.”

[33] Given the Applicant’s uncertainty up to that point in time, I find that Detective Fair legitimately intended to determine whether the Applicant was expressing a desire to consult with counsel at that moment. Had that been what the Applicant was intending to communicate, he would have said so when given the opportunity by Detective Fair. Instead, he continued to express uncertainty as to whether and when he wish to speak to counsel. At that point, Detective Fair quite properly advised him that he could speak to a lawyer at any time and that all he had to do was say so. The Applicant acknowledged his understanding of this. I also note that this was precisely the course of action taken by Detective Wright following the Applicant’s arrest.

[34] With respect to the second statement, “Either which way I’m going to court, so I’m going to have to call a lawyer”, again I find that this does not express an unequivocal request to consult with counsel at that moment. At best, it is an expression of the inevitable – that he is eventually going to have to speak to a lawyer one way or the other because he is going to be going to court. This is also consistent with Applicant’s earlier statement about needing a lawyer to go to court.

[35] While it would have been advisable for Detective Fair to clarify the Applicant’s intention, his failure to do so is not fatal. At the end of the day, the onus is on the Applicant to prove that he invoked his right to counsel and was reasonably diligent in exercising it.

In either case, I also find the Applicant was not reasonably diligent in the exercise of his right to counsel. He was advised on more than one occasion that he could speak to counsel at any point in time upon request. All he had to do was ask. In spite of this, he was unable or unwilling to express a clear intention to speak to counsel before continuing with further questioning. He continued to speak freely to the police without any significant degree of prompting. As a result, I find that the Applicant was either legitimately uncertain or deliberately obtuse about whether he should consult with counsel.

[36] I also note that the Applicant chose not to testify on the voir dire as to what he meant when he made the above-noted statements. The absence of any evidence from him on this issue is one factor which leaves me in a position of being unable to satisfy myself on a balance of probabilities that he was invoking his right to counsel.

[37] The consideration of an accused’s failure to testify on his own Charter Application does not amount to a breach of his right to remain silent under s. 7 of the Charter. As indicated in R v. Rigillo, [2012] O.J. No. 1660 at para. 12, “The right to remain silent is singularly inapplicable in this context”. In support of this, Code J. relied on the Supreme Court’s decision in R. v. Noble (1997), 1997 CanLII 388 (SCC), 114 C.C.C. (3d) 385.

[38] In Noble, Sopinka J held that s. 7 of the Charter prohibited the use of the accused’s silence to establish guilt because this would offend the presumption of innocence. As Code J. points out at para. 13 in Rigillo, the use of the Applicant’s refusal to testify on the Charter voir dire did not offend this principle because this lack of evidence was not used to establish guilt. It was only used to determine whether the Applicant had met his onus on the Charter Application.

[39] In my view, the absence of any evidence from the Applicant in the context of this case is significant if for no other reason than that he was the only one who could truly testify as to what he meant. As indicated above, the absence of this evidence is one factor contributing to the ultimate finding that he has not satisfied the onus upon him of proving that he invoked his right to counsel.

Conclusion

[40] For all of the above reasons, I find the Applicant has failed to establish on a balance of probabilities that his s 10(b) right to counsel was violated. Having already conceded the voluntariness of the Applicant’s statement, it will be admitted into evidence

Released: March 11, 2019

Signed: Justice G.L. Orsini