Court Information

Ontario Court of Justice

Date: April 17, 2019

Court File No.: Brampton 17-0092388

Between:

Her Majesty the Queen

— and —

Jagjit Banwait

Before: Justice Hafeez S. Amarshi

Heard on: November 5, 6, 7, 2018 & January 21, 2019

Written reasons for judgment released on: April 17, 2019

Counsel

A. Calsavara — counsel for the Crown

D. Butler — counsel for Jagjit Banwait

Ruling on Application to Exclude Evidence

A. Overview

[1] Jagjit Banwait is charged with one count of robbery of a cell phone store in Mississauga. The Crown alleges Mr. Banwait was the "get away" driver for two accomplices that robbed All Sun Wireless at gunpoint on March 11, 2017. In addition, it is alleged that Mr. Banwait visited the store one day earlier, on March 10, in order to surveil the store in preparation for the robbery.

[2] Soon after the robbery, the Applicant was arrested, and during a police interview gave an inculpatory statement. Mr. Banwait had initially asked to speak to a lawyer, but changed his mind just prior to giving a statement. Earlier, police had been unsuccessful in their attempts to contact his counsel of choice. The defence argues there was a breach of the applicant's s. 10(b) Charter rights, alleging the police failed to give the accused a "Prosper Warning" prior to obtaining incriminating evidence and seeks the exclusion of the statement pursuant to s. 24(2) the Charter. The Crown submits that Mr. Banwait was not reasonably diligent in exercising his right to instruct counsel and further, the applicant, who the Crown argues was fully informed of his constitutional rights, waived his right to counsel.

[3] Upon review of the evidence tendered at the Charter voir dire, I agree with the applicant, and I find that Mr. Banwait's s. 10(b) rights were violated by police during this investigation and the nature of the breach was serious. The evidence derived from the police statement is to be excluded. The reasons for my decision are outlined below.

B. Relevant Facts

[4] On Saturday March 11, 2017, the police attended an emergency call of an armed robbery at All Sun Wireless – a cell phone store in Mississauga. Charan Kaur, an employee at the store, told police that two masked men entered the store. One of these men held a gun to Ms. Kaur's head, while his accomplice stole a number of cell phones.

[5] Within minutes, both suspects fled the store and were observed by a witness in the plaza to be entering a waiting silver Ford. This witness obtained a partial plate number for the vehicle.

[6] Using this partial plate number, police were able to identify a vehicle registered to Harjinder Banwait at 3316 Michaud Avenue in Mississauga. Based on police database inquires, they further became interested in speaking to Jagjit Banwait, who lived at that address. Detective Raymond Jackson of the Central Robbery Unit of Peel Regional Police, attended the residential address, but did not observe the suspect vehicle.

[7] Det. Jackson spoke to the applicant's parents, who advised the officer that Mr. Banwait was not home. The officer left his business card and returned to continue his investigation at All Sun Wireless.

[8] At the cell phone store, the detective spoke with Ms. Kaur. She advised that a 'suspicious' customer had come into the store the day before the robbery. The witness provided details of this encounter and directed the detective to review the surveillance video from the store. She described the suspect as lingering, and "looking around the store," including the back area where the inventory was kept.

[9] The next day at approximately 5 p.m., Det. Jackson received a call from the applicant who advised that he obtained the detective's contact information from his father. During the conversation, Mr. Banwait volunteered that he could help with the investigation and explained he gave a couple of guys a ride, and they were in a hurry. The detective pressed to speak to the applicant in person and they arranged to meet in Bolton.

[10] On that same afternoon, Charan Kaur, the witness from All Sun Wireless, attended 21 Division in Brampton and was provided a photo line-up array. Ms. Kaur identified a photo of the applicant as the same person she deemed the "suspicious guy," who had entered the store on March 10. As a result of the photo-lineup identification, Det. Jackson formed reasonable grounds to arrest Jagjit Banwait as a party to the robbery of the cell phone store.

[11] The officer then proceeds to confirm a meeting with the applicant at a Harvey's restaurant in Bolton that evening. Upon the detective's arrival, Mr. Banwait exits the restaurant and walks towards the police vehicle. The detective arrests Mr. Banwait almost immediately and advises him he is under arrest for robbery. Det. Jackson reads the applicant a right to counsel instruction. When asked if he wished to call a lawyer now, Mr. Banwait replied, "There's no need." In response to the question, "Do you understand?" following the instruction, Mr. Banwait replied, "Ya, let's get this over with."

[12] The applicant is transported to 21 Division, whereupon he changes his mind and wishes to speak to David Butler, a criminal lawyer he knows. At 8:09 p.m. an officer at the division calls the cell number provided by Mr. Banwait – (647) 993-1304, but there is no answer and no option to leave a message.[1]

[13] Det. Jackson proceeds to conduct a "google search" to obtain additional contact information. The detective calls two numbers – (416) 572-2715 and (416) 869-5300, but is unsuccessful in reaching Mr. Butler. The first number rings busy; the second was a general office number that prompted the officer to leave a voicemail.

[14] Det. Jackson stated during the Charter voir dire, that just prior to testifying, he again conducted a google query and concluded the numbers he called on March 12, 2017, were not associated with a criminal lawyer. One number belonged to David Butler, Executive Director and General Counsel, at the Nickel Institute and the other a corporate lawyer at Cassels Brock LLP in Toronto.

[15] At the time the detective made those initial calls, he did not know those contact numbers were not associated to a criminal lawyer by the name of David Butler in Mississauga. Neither the cells officer nor Det. Jackson attempted to call the cell phone number provided by Mr. Banwait a second time.

[16] A little over 20 minutes after police made attempts to contact a lawyer on behalf of Mr. Banwait, the applicant was placed in an audio-video recorded interview room at the division. At 8:30 p.m. the following exchange occurred between Detective Raymond Jackson and the accused:

Detective Jackson: Okay. My name's Ray Jackson and I'm with the, the Robbery Bureau. Okay? And we arrested you for robbery up in Bolton right now. That's where you were. The robbery wasn't up there. The robbery was here in Mississauga and we brought you back here. Okay? I want to, I want to get some details from you, but first I got to clear up this lawyer thing. When we first arrested you up in Bolton, you said you didn't want a lawyer.

Jagjit Banwait: Yeah.

Det.: When we got back here in the cells, you said you would like to speak with David Butler.

Banwait: Yeah.

Det.: I've tried the number you have for David Butler. What is that a personal cell?

Banwait: Yeah.

Det.: There's no answer.

Banwait: Yeah, that's alright.

Det.: I've tried the lawyer's book number it just rings busy. And I've tried the office number and there's nobody in the office, okay? Then you said back in the cells that you didn't want to speak to him.

Banwait: Yeah.

Det.: And you don't want to speak to duty counsel.

Banwait: No, there's no point if he's not picking up.

Det.: There's no point in speaking with duty counsel even?

Banwait: No, not as, not at this time.

Det.: This is-

Banwait: Probably in the morning, if I have to go.

Det.: Okay. Well it's your, this is your right.

Banwait: Yeah.

Det.: I can't force you to speak with duty counsel.

Banwait: (Inaudible).

Det.: So that's the way we're going to leave that then? And you don't want to speak to anybody right now?

Banwait: No.

[17] Following this exchange, Mr. Banwait provides a narrative where he attempts to minimize his role in the robbery, but ultimately admits to his culpability as the "get away" driver.

C. Applicable Principles & Analysis

[18] It is well established that once a detainee seeks to exercise the right to counsel, two corresponding police duties are triggered.[2] First, police are obliged to cease questioning and second, police must give an accused a "reasonable opportunity" to exercise the right by giving detainees the means and time necessary to talk to a lawyer.[3]

[19] Detainees, however must be "reasonably diligent" in exercising their right to counsel, otherwise they could unduly frustrate the ability of police to collect evidence.[4]

[20] In each case "all of the surrounding circumstances" must be considered in determining whether police have provided a reasonable opportunity for a detainee to speak to a lawyer.[5]

[21] In circumstances where an accused first seeks to speak to a lawyer, but changes their mind, as was the case with Mr. Banwait, police must be confident that the accused understands the implications of their waiver. When an accused waives their right to instruct counsel, police gain authority to question the accused and elicit potentially incriminatory evidence.[6] In those circumstances when there is an abandonment of a right previously invoked, a Prosper warning is required to ensure that an accused understands the full implications of their waiver.[7]

[22] The standard for an informed waiver is high. The Crown must demonstrate that the accused clearly indicated and was unequivocal in their decision to no longer speak to a lawyer and that decision was based on the accused having full knowledge of their rights and the consequences of foregoing them.[8]

[23] To be clear a Prosper warning is a mandatory obligation on the police to advise an accused of his or her right to a reasonable opportunity to contact a lawyer, and a further obligation on the investigating officer to refrain from taking any statements or require the accused to participate in any potentially incriminating processes until they have had that reasonable opportunity.[9]

[24] Applying these legal principles to the circumstances in this case, I find that a Prosper warning was required to ensure that Mr. Banwait's waiver of his right to instruct counsel was informed and voluntary. Det. Jackson failed to provide the warning in a meaningful way before proceeding to elicit incriminating evidence from the applicant.

[25] Although Crown Counsel made able submissions in this case, especially in her review of the governing legal principles, I did not accept her argument that Mr. Banwait lacked diligence in this case. He identified a lawyer and provided a cell phone number. At that point, in a practice that is specific to Peel Regional Police, they assumed the responsibility of contacting counsel on behalf of the applicant, as they do for all individuals in their custody.

[26] The initial attempt to call Mr. Butler's cell phone by an officer at the division was unsuccessful and he could not leave a message. At that point, Det. Jackson conducted a google search which identified two additional numbers which were later revealed to be erroneous. To be blunt, the detective was careless and not particularly thoughtful in the manner in which he executed the name search. A little more effort on the part of the detective that evening to review the websites where he obtained the additional contact information would have quickly established that the similarly named lawyers did not practice criminal law – one was General Counsel at an association of nickel producers and the other at a Bay Street firm with a focus on corporate commercial matters. Even if the officer was not aware of the law firm Cassels Brock, a quick perusal of the firms' directory at the same website he accessed that day, would have confirmed that the counsel in question was a corporate lawyer. Nevertheless, Det. Jackson left a message on his office line for a call back.

[27] It is not lost on me that when Det. Jackson made a more concerted effort to review the same web sources some 20 months later on the trial date, he was able to conclude in short order he was mistaken. Yet no similar effort was made on the evening of March 12, when Mr. Banwait was in custody facing serious legal jeopardy and when those efforts were of paramount importance.

[28] Of particular concern is that the detective relayed this erroneous information to the applicant in the interview room, telling him that his attempts to contact counsel David Butler were unsuccessful, because one of the numbers was busy (the Nickel Institute contact) and that he left a message on the office number of the second contact (a lawyer at Cassels Brock), but there was no response. Mr. Banwait responds soon thereafter, when asked if he would like to call duty counsel by saying, "No there's no point if he's not picking up." Clearly the applicant had a specific desire to speak to his counsel of choice, and was unaware that the information conveyed to him was incorrect.

[29] This was not a situation where the evidence would cease to be unavailable as a result of a delay, nor was this a case of "compelling and urgent circumstances."[10] Indeed, police attempted to contact the applicant's counsel at 8:09 p.m. and by 8:20 p.m. the accused was in an interview room giving a statement. It was a perfunctory effort. No further attempts were made to call the number provided by the applicant, despite the serious nature of the criminal charges faced Mr. Banwait.

[30] In R. v. Marciel, Justice Stribopoulos, noted that in situations where police take the initiative and assume responsibility for contacting counsel, it is for the courts to assess the adequacy of those efforts:

I do not believe there is anything constitutionally objectionable with the police assuming the responsibility of contacting counsel on behalf of those in their custody. That said, it is very much the function of the courts to assess the adequacy of police efforts in the discharge of their constitutional obligations. It follows that if the police assume the responsibility of contacting counsel of choice on behalf of a person who is in their custody, then it is for the courts to assess the adequacy of those efforts.[11]

[31] In this case, efforts to contact a lawyer on Mr. Banwait's behalf were clearly inadequate and further led to erroneous information being conveyed to the applicant. I find that the police did not exercise reasonable diligence in their efforts in contacting the applicant's lawyer of choice.

[32] Even had I found that police made sufficient efforts in contacting Mr. Butler, it would not change my conclusion in this case. Det. Jackson further failed to provide a meaningful Prosper warning prior to eliciting inculpatory evidence.

[33] Although the applicant declined to speak to duty counsel, the detective did nothing further to ensure that Mr. Banwait understood the implications of abandoning his right to speak with a lawyer. An effective waiver requires the applicant have "full knowledge" of his constitutional right and an "appreciation of the consequences" of his decision.[12] That information is never conveyed to Mr. Banwait, neither is he informed of the police duty to hold off from eliciting evidence until his reasonable opportunity to contact counsel has expired. In these circumstances, I cannot conclude that the applicant was aware of the consequences of his waiver and further that it was a knowing and effective waiver of his constitutional rights.

D. Grant Analysis

[34] The test for the exclusion of evidence was outlined by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, and comprises a three-part test. In determining if the admission of the evidence obtained by a Charter breach would bring the administration of justice into disrepute, the following factors are to be considered:

1. The seriousness of the Charter-infringing state conduct;
2. The impact of the breach on the Charter-protected interests of the accused; and
3. Society's interest in the adjudication of the case on its merits.

(i) The seriousness of the Charter-infringing state conduct

[35] In this case the breach of the applicant's s. 10(b) rights falls at the serious end of the spectrum. It remains unclear if Det. Jackson was aware of the constitutional obligations he had in this case. The applicant did not benefit from any meaningful caution by the officer to ensure that his choice to forego s. 10(b) protections was fully informed.

[36] I did not conclude however, that Det. Jackson purposely misled the applicant or willfully subverted his s. 10(b) rights, it is more likely that the officer was either simply unaware of his duty, or did not believe an additional warning was required in the circumstances. This does not however in my view substantially detract from the seriousness of the Charter violation.[13] Ignorance of basic Charter requirements makes the breach more serious.

[37] The circumstances in this case are further aggravated by the fact that the information that is conveyed to the applicant about the accessibility of his counsel of choice was erroneous and misleading. I find that police efforts to facilitate Mr. Banwait's access to legal advice was inadequate and further lacked diligence and care.

[38] Consideration of the first Grant factor favours exclusion of the evidence.

(ii) The impact of the breach on the Charter-protected interests of the accused

[39] The impact on Mr. Banwait's constitutionally protected interests was significant. He was facing serious charges and clearly wished to obtain legal advice. I have found that he did not understand, nor appreciate the full implication of his waiver to speak to a lawyer based on a deficient Prosper warning. At that point Det. Jackson gained authority to question him.

[40] As the Ontario Court of Appeal explained in R. v. McGuffie, "access to legal advice while detained is fundamental to individual liberty and personal autonomy in a society governed under the rule of law."[14]

[41] The second step of the Grant inquiry also favours exclusion.

(iii) Society's interest in the adjudication of the case on its merits

[42] The third inquiry, society's interest in the adjudication of this case on its merits, favors admission of the statement. The offence is a serious one, the applicant is alleged to be a party to a robbery with a firearm. It is an offence that rightfully attracts concern in the community. Mr. Banwait's inculpatory statement is an important piece of evidence in the prosecution's case.

[43] However, this consideration does not outweigh the other Grant factors in this case. As the Supreme Court of Canada observed in R. v. Paterson, the third Grant factor cannot be allowed to trump all other considerations, particularly where the impugned conduct is serious and has had a substantial impact on Charter protected interests.[15]

E. Conclusion

[44] On balance, I am satisfied that the repute of the administration of justice would suffer more from admission of the evidence than by its exclusion. The applicant's statement is to be excluded and cannot be relied upon by the Crown in support of the prosecution's case.

H.S. Amarshi J

Footnotes

[1] The Crown tendered a document from the Law Society of Ontario's website which indicates the contact number for David Butler, a lawyer in private practice in Mississauga, was (647) 993-1304, the same number provided to police by the accused.

[2] R. v. Smith, (1999), 44 O.R. (3d) 373 (Ont. C.A.) at p. 380.

[3] R. v. Manninen, [1987] 1 S.C.R. 1233 at 1241.

[4] R. v. Smith, [1989] 2 S.C.R. 368 at 385.

[5] R. v. Prosper, [1994] 3 S.C.R. 236 at para. 35.

[6] R. v. Lau, 2018 ONSC 2550 at para. 47.

[7] Ibid at para. 47.

[8] R. v. Ross, [1989] 1 S.C.R. 3.

[9] A Prosper warning is limited to specific circumstances, for example, it does not apply where an accused is unsuccessful in contacting their counsel of choice, but then decides to speak with duty counsel or another lawyer. The warning is only required where a detainee is diligent in attempting to contact counsel, but is ultimately unsuccessful and subsequently declines any opportunity to consult with a lawyer.

[10] R. v. Prosper, supra note 5, at para. 45. In R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429 at para. 33, the court elaborated on what will qualify as a reasonable period of time to wait for counsel of choice, explaining that this 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."

[11] R. v. Maciel, 2016 ONCJ 563 at para. 42. See also discussion in R. v. Sivalingam, 2018 ONCJ 510.

[12] R. v. Prosper, supra note 5, at para. 57.

[13] The Supreme Court explained in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 75, "ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith."

[14] R. v. McGuffie, 2016 ONCA 365 at para. 80.

[15] R. v. Paterson, 2017 SCC 15 at para. 56.