Court File and Parties
Ontario Court of Justice
Date: 2019-10-28
Court File No.: Brampton 3111 998 18 15300
Between:
Her Majesty the Queen
— and —
Bhuwan Diaram
Before: Justice G.P. Renwick
Heard on: 28 October 2019
Reasons for Judgment released on: 28 October 2019
Counsel
E. Beaton — counsel for the Crown
A. DeMarco — counsel for the defendant Bhuwan Diaram
Ruling on Charter Application and Voluntariness Voir Dire
RENWICK J.:
Introduction
[1] I've been asked to decide whether the taking of the Defendant's statement by the police after his arrest contravened his s.10(b) Charter rights and whether the statement is otherwise admissible under the common law voluntariness rule.
[2] The evidence taken on the blended voir dire consisted of the arresting officer, an assisting officer, and the officer who took the Defendant's statement. The video recording and transcript of the statement were also admitted into evidence.
[3] The Defendant has the onus to establish any alleged Charter violations on a balance of probabilities, while the Crown must prove that the Defendant's statement was voluntary, beyond a reasonable doubt.
Analysis
[4] In R. v. Suberu, 2009 SCC 33, [2009] SCJ No. 33 at para. 41, our highest court spoke of what is meant by the words, "without delay," found within s.10(b) of the Charter:
41 A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.
At paragraph 42, the court held:
In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. [Emphasis added]
[5] The Supreme Court re-affirmed these principles in R. v. Taylor, 2014 SCC 50, [2014] SCJ No. 50 at paras. 24, 25, and 28. At paragraph 28 the court held:
28 But the police nonetheless have both a duty to provide phone access as soon as practicable to reduce the possibility of accidental self-incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated. While s. 10(b) does not create a "right" to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right to counsel at the first reasonable opportunity.
The court went on to say at paragraph 32:
32 The duty of the police is to provide access to counsel at the earliest practical opportunity. To suggest, as the trial judge did, that it is presumptively reasonable to delay the implementation of the right to counsel for the entire duration of an accused's time waiting for and receiving medical treatment in a hospital emergency ward, without any evidence of the particular circumstances, undermines the constitutional requirement of access to counsel "without delay".
[6] If medical treatment is not enough of a reason to delay the provision of access to counsel, the deliberate choice of Constable McDonald to await the briefing of others before carrying out this fundamental requirement cannot possibly be justified at law.
[7] The evidence respecting the delays in this case is uncontroversial and uncontested.
[8] I find that the Defendant did not receive access to a telephone to exercise his s.10(b) right to counsel at the first reasonable opportunity.
[9] Leaving aside whether this should have happened before the police processed the Defendant at the police station, and bearing in mind that the Defendant was arrested at 10:44 am and given his rights to counsel at 10:57 am and he indicated he did want to exercise his right at that time, and leaving aside the delays in transporting the Defendant and bringing him into the police station at 12:02 pm, Constable McDonald made no efforts to facilitate the Defendant's access to counsel until 1:31 pm. From the time of arrest this was 2 hours and 47 minutes.
[10] Even if I subtract all of the delay until 12:22 pm, which is the estimated time it took until the Defendant was admitted in the police station, processed, and lodged in a cell, the delay of one hour and 9 minutes until the officer began to make efforts to put the Defendant in touch with counsel cannot be reconciled with the law requiring the facilitation of the right to counsel at the first reasonable opportunity.
[11] I am satisfied that s.10(b) of the Charter has been violated.
[12] In these circumstances, the delay was deliberate, misguided, and significant. The purpose of an immediate provision of access to counsel is several fold:
to permit an arrestee to know their rights vis-à-vis answering police questions or otherwise participating in their own investigation;
to permit an arrestee with sufficient information to make an informed choice about whether or not to waive their right to remain silent; and
to avoid inadvertent self-incrimination.
[13] To argue, as the prosecution has, that the Defendant never actually confessed, or that the police held off questioning the Defendant until he had spoken to counsel, respectfully, misses the point. By then, the violation had already occurred because the delay was unreasonable and without lawful justification.
[14] I find that this is a serious breach of the Defendant's s.10(b) right and it was deliberate and unexcusable.
[15] The impact of this breach of the Defendant's rights upon the Defendant cannot be minimized. He was taken away from his neighbourhood and held for almost three hours without access to counsel. It appears from the Defendant's video statement that he would not have been given any information about his son, who had been arrested with him. This must have been an awful situation – to be arrested and held, for almost three hours while absolutely no efforts were being made to provide the Defendant with access to counsel.
[16] This is fundamental and everyone remotely familiar with popular culture would likely know that this was wrong. In the absence of any evidence from the Defendant I cannot assume his mental state or the effect of this deprivation on him. Regardless, it was not an insignificant impact upon him in all of the circumstances.
[17] Lastly, in terms of the third factor for this analysis, whether the statement ought to be admitted or excluded from the Defendant's trial based upon a consideration of the effect of excluding the evidence upon the public perception of the administration of justice, this factor also militates in favour of exclusion. A confession or statement from an arrestee is potentially damning evidence. It is entirely conscripted by taking the Defendant's own words and using them in his investigation and prosecution at the instance of the state. Where, as here, a flagrant, Charter violation occurs and has had a direct impact on the gathering of evidence, which happens to be the Defendant's own words, more often than not, admission of this evidence will bring the administration of justice into disrepute.
Conclusions
[18] The court must distance itself from this type of police conduct in all of the circumstances of this case. On this basis I am excluding the Defendant's statement from admissibility in this trial for all purposes.
[19] For these reasons, while it may be unnecessary to rule on the prosecution's Application to adduce the Defendant's statement, I will comment briefly on this Application.
[20] I am satisfied beyond a reasonable doubt that there were no threats, inducements, promises, or coercion that precipitated the Defendant's statement. The evidence is uncontested, and it is accepted. The Defendant spoke to duty counsel and then he spoke to Detective Constable Beck.
[21] I am satisfied that there was no inducement or quid pro quo offered to the Defendant to undermine his free will to speak to the police. In the absence of any evidence to the contrary, I cannot conclude that the Defendant perceived any inducements. Thus, I am satisfied beyond a reasonable doubt that the statement, which is otherwise inadmissible, was voluntarily made.
Released: 28 October 2019
Justice G. Paul Renwick