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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
Date: 2024 02 05 Court File No.: Toronto 22 30004754
BETWEEN:
HIS MAJESTY THE KING
— AND —
P.M.
Before: Justice R. Wright
Heard on: Nov. 29, 2023, Jan. 15 and Jan. 16, 2024 Reasons for Judgment released on: Feb. 5, 2024
Counsel: A. Kocula.............................................................................................. counsel for the Crown J. Pyzer..................................................................................... counsel for the accused P.M.
R. WRIGHT J.:
[1] P.M. is charged with sexual interference, invitation to sexual touching, sexual assault and making child pornography. It is alleged that between June and September of 2022, he invited his girlfriend’s 9 to 10-year old daughter into his bedroom, invited her to remove her clothes, and video-recorded her vagina while having her spread it apart and making comments that it was beautiful.
[2] The existence of this video came to the attention of school authorities in October of 2022. Police were contacted. P.M. was arrested outside of the complainant’s school on October 11, 2022. After his arrest, he gave a cautioned video-recorded statement to investigating officers while in custody at Toronto Police Services (“TPS”) 43 Division.
[3] On January 16, 2024, following a contested voir dire, I found that this statement had been proven voluntary beyond a reasonable doubt, and that the record of the statement was sufficient. I did not accept that there were any inducements made; rather I was satisfied that P.M. had a clear objective in speaking to police, which was to try to convince them that no crime had been committed. However, I excluded the statement for a breach of s. 10(b) of the Charter finding that police had failed to fulfill their obligations: P.M. had elected to exercise his right to counsel by speaking with a specific lawyer; s. 10(b) entitles him to a reasonable opportunity to contact his chosen counsel prior to police questioning; the police conduct in this case fell short of a reasonable opportunity. I was satisfied that the balancing pursuant to s. 24(2) of the Charter required that the statement be excluded from evidence.
[4] I advised the parties that written reasons would follow. These are those reasons.
Timeline
[5] P.M. was arrested outside of the complainant’s school at approximately 5:55 pm by Detective Constable (“DC”) Robbins of the TPS. He was read his rights to counsel from DC Robbins’ memobook and was asked if he wanted to call a lawyer now. He responded “yes”. P.M. did not have a phone number for the lawyer he wanted to contact, but he provided a specific name: Lawrence Forstner. DC Robbins determined that he did not have the ability to provide immediate private access to counsel and told P.M. that he would facilitate access to counsel when he was able to facilitate a private conversation (once they arrived at the station). He also advised that he would look up the number for Mr. Forstner, and if it could not be located he would be able to call duty counsel as a free legal option. DC Robbins also read P.M. a caution that anything he said to police could be used against him.
[6] P.M. was turned over to Police Constable (“PC”) Hardcastle for transport at approximately 6:30 pm. He was re-read his rights to counsel from PC Hardcastle’s memobook while in the rear of PC Hardcastle’s cruiser. He was also cautioned again that any statements he made could be used against him. P.M. once again indicated that he wanted to contact counsel and provided the name, but not a phone number. PC Hardcastle decided to wait until he had transported P.M. to the division, which was five minutes away, to facilitate a call to counsel.
[7] P.M. was booked into the station by 7:01 pm. A call was placed to counsel at 7:30 pm. PC Hardcastle testified that this was the soonest he could place the call to counsel as he had other immediate duties to fulfill before placing this call, including moving his scout car from the sallyport area. He testified that he always treats access to counsel with urgency.
[8] PC Hardcastle testified that he placed a call to Lawrence Forstner. He did not recall where he had got the phone number but believed it would have been from the internet. There is a discrepancy between PC Hardcastle's notes and the call-log as to the number called; the call-log has an area code of 298 rather than 289. PC Hardcastle testified that the call-log is a typo, and he knows that 289 is a Toronto area code and that is the number he called. PC Hardcastle testified that he left a message, which he would not do if he had not confirmed the number belonged to the correct lawyer, but he did not have a specific recollection of an outgoing voicemail message or whether he spoke to an actual person. He did not attempt to obtain a different contact number.
[9] PC Hardcastle also called duty counsel, placing that call at approximately 7:32 pm. He was unable to say whether he had further conversation with P.M. before placing this call. He testified he would typically confirm with a detainee that he was placing a call to duty counsel as a “back up,” but he was unable to say whether he had that conversation with P.M.
[10] P.M. was lodged in a cell while these calls were made. DC Robbins received a call back from duty counsel at 8:04 pm. DC Robbins recorded the name of duty counsel and put the call through to the private phone for P.M. Lawrence Forstner had not called back. DC Robbins did not have any conversation with P.M. directly to confirm that he wanted to speak to duty counsel. It is acknowledged that P.M. spoke to duty counsel, but there is no evidence of length of the call. The Crown also did not call evidence that P.M. was given any option to refuse to speak to duty counsel by any other officer.
[11] DC Robbins and DC Kama, the main investigating officers, approached P.M. at approximately 8:52 pm in cells. DC Kama testified that he “invited” P.M. to attend to speak to them in a separate room; DC Robbins testified that P.M. was not really given a choice whether to accompany them. Both officers testified that he walked to the interview room of his own volition, although they did have hands on him while accompanying him through to station.
[12] While he was being escorted from the cell into the interview room, there was some conversation with the officers, the start of which was not recorded. At some point during this introductory discussion, DC Kama turned on an audio recorder. What is recorded on the audio is P.M. exiting the cell, a confirmation of his comfort, P.M. saying he is surprised that they haven't dropped the charges, and the walk from the cell to the interview room.
[13] The portion of the discussion that is not recorded is a point of dispute between the parties. DC Kama testified that only introductory points were discussed: an invitation to accompany the officers. DC Robbins testified that P.M. was not given a choice but that there was only introductory discussion about why they were moving him to the interview room. P.M. testified that he asked the officers if he was going to be released and DC Robbins told him that it depended on what he said in the interview.
[14] The video-recorded interview starts at 8:51 pm. It is approximately 1.5 hours long. Immediately after introductions, the question of access to counsel was raised. It is helpful to reproduce this portion of the transcript:
ROBBINS: Okay. Um, you were give-, I gave you your rights to counsel and then an officer came in uniform and he gave you your rights to counsel as well, or you could-, what the charges were that you were gonna be charged with and that you could speak to a lawyer, um, and if you understood that, um, do you remember that? P.M.: Mm-hmm. ROBBINS: Um, and did you have an opportunity to speak with a lawyer? P.M.: I spoke to duty counsel, but... ROBBINS: I don't, I don't want to know what you said... P.M.: Mm-hmm. ROBBINS: ...or the conversation that you had, I just wanna know, you spoke to them, are you satisfied with what you heard? P.M.: I would've preferred another phone call with a different lawyer. Um, I asked to speak with another lawyer. ROBBINS: Yeah. So it's my understanding that you asked to speak to a lawyer that you had used previously. A message was left for him, um, but he never called back. So that's why, uh, duty counsel was there. If this lawyer-, if that lawyer calls, I don't have his name here with me, it's, uh, it's written in the back. Um, if that lawyer calls, absolutely, you can speak to him. It's not-, that's not an issue at all, okay? But are you satisfied with what-, the advice that you got from the lawyer right now? P.M.: Yeah. ROBBINS: Okay. Um, I also-, at the time of the arrest, I cautioned you and I said that, um, you're gonna be charged with, uh, the offences of sexual invitation, uh, sexual assault and make child pornography. Um, I told you... P.M.: There was-, sorry, you said this... ROBBINS: At the time there was the two, there was a sexual invitation and the, um, make child pornography. Uh, the additional charges being added onto it is sexual assault. Um, at the time I gave you a caution, I told you didn't have to say anything to me. Do you remember? Do you remember that? P.M.: Yes. ROBBINS: And then I said, if you did say anything, we can use it as evidence. Do you understand that? P.M.: (Nods head yes.) ROBBINS: Okay. I'm gonna read you another caution now, um, having gone through all of that, um, it's called a secondary caution. And if you've spoken-, uh, if you have spoken to any police officer or to anyone with authority, or if any such person has spoken to you in connection with this case, I want it clearly understood that I do not want that to influence you in making a statement. Do you understand that? P.M.: Yes. ROBBINS: So basically, if someone said to you, hey, listen... P.M.: Yeah. ROBBINS: ...when that officer comes back and gets you, you better say something to him, better talk to him. That-, I, I don't want that to influence you. I want you to, if, if you decide that you wanna speak to me, that's on your own free will. It's not-, you're not being influenced by anyone. Do you understand that? P.M.: Mm-hmm.
[15] After this, P.M. provides some information in response to questions about the family structure, and the living arrangements. DC Robbins then asks him about being naked within the home:
ROBBINS: Um, so it's my understanding that, um, it's not uncommon for you to walk around the house naked. Is that fair to say? P.M.: Um, uh, as advised by duty counsel, um, I would like to, um, basically not-, like I, I, I don't want to not answer questions 'cause I'd like to like, you know, clear things up and make sure that everything is, you know, uh, understood that there is no laws that were broken. Um, but I would like to make sure that I, I speak with my lawyer before, uh, I proceed and I would like to have the disclosure otherwise, but I would not-, I'd prefer to not answer any questions just to make sure that, um, you know, uh, nothing is misinterpreted or misunderstood. ROBBINS: Okay. And that's fair. And you, you have every right to do that and I'm not gonna get mad at you for exercising that right. P.M.: I also prefer you to not ask me any more, uh, questions in relation to the incident or in relation to like that, but just, just to, uh, like provide with me, uh, any disclosure that you could offer to me. ROBBINS: Yeah, for sure. Um, so I will ask a couple of questions, um, based on, uh, the investigation and, um, concerns that we may have, um, in regards to-, on your release, what conditions we might need to put on you to ensure the victim's safety or other potential victims' safety and, and stuff like that. P.M.: I don't agree that they're even a victim, uh, other than the system, uh, jumping the gun, um, but we'll… ROBBINS: Okay. Um, so do you have, um, any sexual interest in children? P.M.: So, uh, under advisement of, uh, counsel, I would understand to not answer questions. ROBBINS: Okay. P.M.: Yeah. ROBBINS: That's fair. Um, 'cause with my concern is, is that there's this alleged video, um, that was, that was taken of a child and some concerning behaviour in-, involving the child. So that-, that's why I'm asking. So it's, it's kind of to, I guess, see where you're at, um, so that we know what we can do on your release. You understand?
[16] P.M. then proceeds through the next hour of the video to present his version of events. He tells DC Robbins he is “so confident that everything I have done isn't a crime I might as well just tell you.” He goes on to explain that he took the video for medical reasons and may have gone too far when he told the complainant she was beautiful.
[17] P.M. does most of the talking. Both officers maintain quiet tones and relaxed postures. P.M. debates with the officers about whether there is a crime when what he was doing had no sexual connotation.
[18] Toward the end of interview the officers offer him food and drink and he interjects: “I honestly thought I would explain this to you and you would see I am not some monster…”
Voluntariness
[19] The issues on voluntariness were narrowed to two:
(1) Is the record of the police interaction with P.M. sufficient to make a determination of voluntariness;
(2) Is there a reasonable doubt that P.M.’s will was overbourne by an inducement (mixed with the threat of continued custody).
Legal Principles
[20] The requirement of voluntariness exists to address reliability and fairness concerns, and in particular, the need to treat detainees fairly by not allowing coercive state tactics. The rule seeks to balance the protection of a detainee's rights with society's need to investigate and solve crimes.
[21] Voluntariness must be assessed in light of the Charter enshrined right of a detainee to remain silent. As noted in R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 21:
Although historically the confessions rule was more concerned with the reliability of confessions than the protection against self-incrimination, this no longer holds true in the post-Charter era. Both the confessions rule and the constitutional right to silence are manifestations of the principle against self-incrimination.
[22] The test for voluntariness was outlined by the Supreme Court of Canada (“SCC”) in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3. This test reflects a change of focus away from the historical emphasis on reliability to the more modern focus on a suspect's right to freely choose whether to speak to police.
[23] Voluntariness of a detainee's statement to authorities must be proven beyond a reasonable doubt. The determination of voluntariness is contextual, requiring an examination of the circumstances surrounding police exchanges with the detainee. Oickle defined four criteria that the Crown must prove:
(1) No promises, threats or inducements strong enough to raise a doubt that the detainee's will has been overbourne;
(2) That the detainee possessed an operating mind;
(3) No oppressive atmosphere; and
(4) No police trickery that would shock the community.
[24] Police are obliged to record the circumstances of interactions leading up to the statement and the absence of a proper record can lead to adverse inferences. While verbatim, electronic recordings of actual statements are preferred, summaries cannot be discounted. Once it is established that the exchange was voluntary, the adequacy of the record goes to weight, not admissibility. The Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police.
Analysis
[25] I am satisfied that the record is sufficient for a determination of voluntariness. The only section that was not presented in recorded form is the short discussion before DC Kama turned on his audio recorder at the cell. DC Kama and DC Robbins both summarized this brief interaction. It did not form part of the statement itself. As DC Kama acknowledged, it would have been better to have recorded this section, but the whole of the station is being recorded and I accept that it was an accidental brief oversight on his part that the audio recording was started late.
[26] I do not accept that DC Robbins or DC Kama made any promises, threats or inducements that were strong enough to raise a reasonable doubt that P.M.’s will was overbourne. I accept that P.M. was focused on the question of being released from custody; but, contrary to his evidence that there had been an inducement offered to him of release if he provided a satisfactory interview, the record demonstrates that his motivation was to be released by having the charges against him dropped.
[27] I do not accept P.M.’s evidence that he asked DC Robbins if he would be released and was told that it depended on what was said. This is contrary to the evidence of both DC Robbins and DC Kama. It is also contrary to the audio recording of the discussion at the cell, which discloses P.M. telling officers he was surprised that the charges had not yet been dropped. It is also inconsistent with the content of the recorded interview. P.M. may now believe that this was the meaning of his discussions with the officers prior to giving the statement, but it is clear from the entirety of the interview that his focus with the officers was to try to convince them that no crime had been committed. Success in that endeavour may have resulted in a release from custody but there is nothing about the way the questions and answers unfolded that supports his current contention that his will was overbourne by the inducement of a release order.
[28] In my view, the content of the interview shows that P.M. had a clear objective that became apparent over the course of the interview; he was trying to convince the police that he acted out of a medical concern mixed with his naturalist sensibility. He was trying to convince the police that there was no sexual connotation, and that no crime had been committed at all. He was trying to have the charges against him dropped.
[29] He said this himself in three different ways in the police recordings:
(1) On the audio recording, on the way to the interview room, he verbally expresses surprise that the charges have not been dropped;
(2) In the video statement, when he chooses early in the interview to disregard the advice he has repeated, and states that he is so confident that what he has done is not a crime that he might as well tell them; and,
(3) At the end of the video-recorded interview when he tells officers that he thought he would explain himself and they would see he was not a monster.
[30] It may not have been the smartest choice, and clearly, in his own words, it was contrary to the legal advice he had received, but it was the choice that P.M. made in speaking to police.
[31] Further supporting my finding is the evidence that P.M. had been repeatedly cautioned that what he told police would be used, and the secondary cautions given that nothing any officer had said to him should influence him in making a statement. P.M. acknowledged he understood these cautions.
[32] On considering the totality of the record, I am satisfied that the Crown has proven P.M.’s statement was voluntary beyond a reasonable doubt.
Rights to Counsel
[33] P.M. submitted that the police violated his ability to adequately exercise rights to counsel by steering him to duty counsel and by not holding off on taking the statement until after he had spoken to counsel of choice. He further submitted that the breach was serious and negatively affected his Charter-protected interests and that the appropriate remedy is the exclusion of the statement.
[34] The Crown submitted that P.M. failed to establish that it is more likely than not that right to counsel was violated. In the alternative, the Crown argued that even if his right to counsel was breached, the statement should not be excluded from evidence.
Legal Principles
[35] This issue involves a consideration of the scope of the duty of police to provide a detainee with a reasonable opportunity to contact counsel of choice. The burden of proof in establishing a breach of s. 10(b) Charter rights rests with the accused on a balance of probabilities.
[36] I rely on the following principles set out by binding appellate courts in addressing the duties of the police for implementing a detainee's right to counsel:
(1) Where the police assist the detainee or control the means of exercising rights to counsel, the police must be reasonably diligent, which is the same standard to which the detainee is held if implementing rights on his own: R. v. Wilding, 2007 ONCA 853, [2007] O.J. No. 4776 (C.A.); R. v. Vernon, 2015 ONSC 3943, [2015] O.J. No. 4157 (S.C.J.), leave to appeal refused 2016 ONCA 211; R. v. O'Shea, 2019 ONSC 1178.
(2) While police must be reasonably diligent in assisting the detainee in exercising his rights to counsel, they are not required to exhaust all reasonable means for the detainee to speak with a lawyer: R. v. Winterfield, 2010 ONSC 1288, [2010] O.J. No. 952 (S.C.J.) paras. 46 - 67; R. v. Sharma.
(3) Having consideration for the circumstances of each case, the test is not whether the police could or should have done more, but whether police provided the detainee with the necessary information and assistance to allow him to exercise his rights: R. v. Gentile at para. 24; R. v. Blackett at paras. 23 - 24, and 29; R. v. Antoninas, 2014 ONSC 4220, [2014] O.J. No. 5226 (S.C.J.) at para. 93; and R. v. Vernon, 2015 ONSC 3943, [2015] O.J. No. 4157 (S.C.J.).
(4) The detainee is required to be reasonably diligent in the pursuit of his rights: R. v. Leclair and Ross (1989), 46 C.C.C. (3d) 129 (S.C.C.) at p. 135; R. v. Littleford, [2001] O.J. No. 2437 (C.A.); R. v. Richfield (2003), 178 C.C.C. (3d) 23 (Ont. C.A.); R. v. Clarke, [2005] O.J. No. 1825 (C.A.) at paras. 31-33; R. v. Van Binnendyk, 2007 ONCA 529.
(5) Where a detainee wants to call a specific lawyer, he has a duty to tell the police who he wants to call and why: R. v. Williams, 2014 ONCA 400 at para. 39; R. v. Johnston (2004), 2004 BCCA 148, 183 C.C.C. (3d) 157 (B.C.C.A.); R. v. Antoninas, 2014 ONSC 4220, [2014] O.J. No. 5226 (S.C.J.); R. v. Cheema, 2018 ONSC 229, [2018] O.J. No. 121 (S.C.J.) at para. 31; R. v. Mumtaz, 2019 ONSC 229 at paras. 25 - 28.
(6) Unless the detainee expresses to the police dissatisfaction with the legal advice received, he is not entitled to Charter relief: R. v. Neziol; R. v. Kumarasamy; R. v. Cairns, [2004] O.J. No. 210 (C.A.); R. v. Burley (2004), 181 C.C.C. (3d) 463 (Ont. C.A.); R. v. Clarke, [2005] O.J. No. 1825 (C.A.) at paras. 31-33; R. v. Traicheff, aff'd 2010 O.J. No. 5355 (C.A.); R. v. Shoker, 2016 ONSC 4563.
[37] In R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, the SCC summarized the law that applies where a detainee chooses to contact a particular lawyer. Following his arrest, the police had informed Mr. Willier of his right to counsel and facilitated a brief telephone conversation with duty counsel. The next day, Mr. Willier was offered another opportunity to contact counsel and left a message on the lawyer’s answering machine. Afterwards, the police offered him an opportunity to contact another lawyer, which he declined. The police then advised the detainee that it was unlikely his lawyer would be available until the next day and offered to contact Legal Aid, which offer the detainee accepted. The police waited approximately 50 minutes after he spoke with the Legal Aid lawyer before initiating an investigative interview. At the beginning of the interview, the police confirmed Mr. Willier’s prior consultations with Legal Aid, re-informed him of his right to retain and instruct counsel, and offered him another opportunity to contact a lawyer before continuing with the interview, which he declined.
[38] The SCC summarized the rights of the detainee as follows, at para. 35:
Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation: R. v. Black. If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended: R. v. Ross, [1989] 1 S.C.R. 3; and Black …
[39] The SCC found that Mr. Willier had exercised his right to counsel by choosing to speak with a Legal Aid lawyer.
[40] In R. v. Traicheff, 2010 ONCA 851, at para. 2, the Court of Appeal agreed with the following comments by the trial judge, who found a breach of the detainee’s s. 10(b) Charter rights:
Appropriately the police should advise the detainee after waiting a reasonable period of time for his lawyer to return the call that no call has come in from his lawyer and ask him if he would like to consult another lawyer. Alternatively the police should ask the detainee whether he has another telephone number where his counsel of choice could be reached or give him a telephone directory to see if he could find his lawyer’s name and another telephone number where he could be reached.
[41] Concerning these comments, the Court of Appeal wrote, at paras. 2-3:
We agree with these observations. Indeed, they reflect the Supreme Court of Canada’s decision in R. v. Willier [citations omitted] where at para. 41 McLachlin C.J.C. and Charron J. wrote that s. 10(b) requires the police to afford detainees not only a reasonable opportunity to contact counsel of their choice but as well to facilitate that contact.
Departing from the practice outlined by the trial judge is not a technicality…
[42] The test for exclusion of evidence under s. 24(2) of the Charter is set out in R. v. Grant, 2009 SCC 32, and involves balancing three questions: (1) Is the Charter violation serious? (2) What was the impact of the Charter violation on the accused's Charter protected interests? and, (3) What is society's interest in the adjudication of the case on its merits?
Analysis
[43] P.M. maintained his request to speak to counsel of choice through multiple explanations of his rights to counsel. Approximately 30 minutes after he was booked into the station, a single call was placed to his counsel of choice. The police record of that call is poor: I do not have evidence before me of how the officer got the number he contacted, how the officer confirmed he had reached the correct number, whether he actually left a voicemail or spoke to a person, and whether any of this was communicated to P.M. There is only PC Hardcastle’s assertion that he would have confirmed it was the correct number before leaving a message.
[44] Two minutes after the call to this number was placed a call was made to duty counsel. Approximately 32 minutes later duty counsel called back to the station and contact with P.M. was facilitated. There is no evidence before me of the length of the consultation with duty counsel. There is no evidence from any police witnesses that they had any conversation with P.M. prior to placing him on the phone with duty counsel.
[45] P.M. testified that he spoke to duty counsel because he felt he had no choice. No officers had advised him he could wait a reasonable time for his lawyer to call back. No officers asked him if he had a different number for counsel, although he had advised an officer that he had a direct number in his phone, but the police were not permitting him access to that phone. No one asked him if he wanted to try to contact a different lawyer.
[46] The highest the evidence reaches with respect to whether P.M. was given a choice about speaking to duty counsel is DC Robbins' belief that someone would have confirmed that with P.M. That any such conversation occurred is simply not proven on the record before me.
[47] Where a detainee asks for counsel of choice and the police control the means of accessing that counsel, the police should advise the detainee after waiting a reasonable period of time for his lawyer to return the call that no call has come in from his lawyer and ask him if he would like to consult another lawyer. Alternatively, the police should ask the detainee whether he has another telephone number where his counsel of choice could be reached or give him a telephone directory to see if he could find his lawyer’s name and another telephone number where he could be reached. S. 10(b) requires the police to afford detainees not only a reasonable opportunity to contact counsel of their choice but to facilitate that contact.
[48] The police cannot simply default to duty counsel. Duty counsel should not be called at the same time as a call is placed to counsel of choice, at least not without documented confirmation that the detainee agrees to this course of action. It is the choice of the detainee if they are content to have duty counsel be a “back-up” in the event that counsel of choice is not available in a reasonable time. Police should carefully document these conversations.
[49] Here, there was almost no delay between the call to counsel of choice and the call to duty counsel. There is no indication in the record that P.M. had agreed to this course of action. There is no indication that P.M. was told he could wait a reasonable time for his counsel. There is no indication that P.M. agreed to forgo counsel of choice in favour of speaking to duty counsel. There is no indication that P.M. was given any choice at all in the matter.
[50] The Crown submitted that the fact that P.M. had exercised speaking to duty counsel and did not subsequently complain should be sufficient, citing Willier. In my view, Willier is distinguishable because the detainee in that case was given the choice and chose to exercise his rights by speaking to duty counsel. P.M. was not offered the choice to wait a reasonable amount of time or speak to duty counsel and forgo waiting. P.M. was not given the option of seeking an alternate means of contacting his counsel of choice or seeking alternative counsel of choice.
[51] In my view, P.M. also did complain about not being able to speak to counsel of choice. When asked near the outset of the interview if he had exercised his right to counsel he responded directly “I would've preferred another phone call with a different lawyer. Um, I asked to speak with another lawyer.” When told that his lawyer had not called back and that they would interrupt the interview if he did call, P.M. reluctantly agreed he was satisfied. But as he explained in his testimony, he meant he was satisfied with the professionalism of duty counsel and that he had received advice, but he still wanted to speak to his own counsel. This is bourne out further in the interview when he is asked by DC Robbins if he walks around the house naked and replies “I would like to make sure that I, I speak with my lawyer before, uh, I proceed and I would like to have the disclosure otherwise, but I would not-, I'd prefer to not answer any questions just to make sure that, um, you know, uh, nothing is misinterpreted or misunderstood.”
[52] These two statements reflect a dissatisfaction with the access he received to duty counsel rather than his counsel of choice. P.M. could have complained more directly or more forcefully, but it makes sense that he did not do so given that he had not been consulted about speaking to duty counsel prior to being put on the phone, and given the manner in which DC Robbins cut off commentary about the fact that he had not spoken to the counsel he requested.
[53] The failure to advise P.M. that he had the right to hold off for a reasonable time, the failure to offer P.M. any choice, and the steering to duty counsel in such a short period of time with no pressing investigative urgency is a breach of s. 10(b).
Should the Statement be Excluded Pursuant to s. 24(2)
[54] The Court of Appeal considered the first prong from Grant in R. v. Thompson, 2020 ONCA 264, at para. 83:
The first line of inquiry considers the seriousness of the police conduct that infringed the Charter and led to the discovery of the evidence. It asks whether the police engaged in misconduct from which the court should dissociate itself, such as where the departure from Charter standards was significant or where the police knew or should have known that their conduct breached the Charter; or rather whether the breach was merely of a technical nature or reflected an understandable mistake, in which case dissociation is much less of a concern [citations omitted].
[55] Considering the seriousness of the conduct, I have concerns that the Court of Appeal's endorsement in R. v. Traicheff, 2010 ONCA 851, appears to have been ignored. It was incumbent on the police to call P.M.'s counsel of choice, leave a message if he didn't pick up and then give P.M. his options. The officers before me testified that it was appropriate to call duty counsel at the same time, or two minutes later. Then, when duty counsel called back, P.M. was not given a choice to refuse, he was simply placed in contact with duty counsel. All of the officers who testified before me seemed unconcerned by this approach. DC Kama said it was his standard practice. All seemed to be certain someone would have confirmed P.M. was agreeable to speaking to duty counsel but none had, nor had any confirmed whether any other officer had.
[56] I am also concerned with the lack of adequate record of this issue by the officers involved. PC Hardcastle made no notation as to whether he left a message with counsel of choice or spoke to a person. He made no record of how he obtained the number he called. No officer made any attempts to find an after-hours number. No officer asked P.M. if he had any other means of reaching counsel. None recorded any follow up conversation with P.M. once his counsel of choice was first called.
[57] This evidence furnishes a basis for me to find that the police training on this issue is inadequate to equip individual front-line officers with an ability to deal with arrestees in a Charter-compliant manner, at least in regard to counsel of choice. I do not think the officers in this case set out to infringe P.M.'s s. 10(b) rights on purpose. However, their failure to understand the importance of letting P.M. know about the options available to him, despite binding authority from the Court of Appeal that is more than a decade old, suggests an institutional failure on the part of the police leading to this negligence.
[58] For these reasons the first prong of Grant strongly pulls in favour of exclusion of evidence.
[59] Turning to the second prong, the evidence establishes that P.M. spoke with duty counsel. He did not specifically make a complaint about the adequacy of that call, but he did attempt twice in the interview to raise the issue that he had not spoken to counsel of choice. On the second attempt he expressed to investigating officers that he did not want them to continue questioning until after he had spoken to his own lawyer. He was steadfast from the beginning of the arrest that he wanted to speak to specific counsel. He was unwavering on this from the time he was first read rights to counsel to the time when he began providing his side of the story during the interview.
[60] In R. v. Rover, 2018 ONCA 745, the Court of Appeal found that a delay in the implementation of the right to counsel for the arrestee is serious. The Court held that the exercise of rights to counsel after arrest is a “...lifeline for detained persons” (at para. 45). Rover stands for the proposition that a delay in providing that lifeline is a serious Charter violation unless the Crown adequately explains the reason for the delay. In the case before me P.M. got that lifeline, but it wasn't the one he asked for. There was no compelling reason why investigating officers could not have held off questioning. It is of some impact on the Charter-protected interests of the arrestee if access to counsel of choice is denied: a person may give more credence to the advice of a trusted and known counsel than to an unknown lawyer. I therefore find that the second prong of Grant pulls in favour of exclusion of the statement.
[61] Turning to the third prong of Grant, I am mindful that society always has an interest in the adjudication of a trial on its merits. The charges here are serious. The evidence sought to be excluded is P.M.'s statement, which arguably acknowledges conduct that may confirm the Crown’s evidence. However, the Crown has other evidence, and the prosecution will not be ended by exclusion of the statement. The third prong of Grant favours admission of the statement into evidence, but not as strongly as in a case where the exclusion would be fatal to the prosecution.
[62] Balancing the three prongs, I am of the view that the longer-term integrity of the administration of justice requires the exclusion of P.M.'s statement from evidence. The seriousness of the police conduct and the impact on P.M.’s Charter-protected interests outweigh society’s interest in the admission of this evidence. The statement is excluded.
Released: February 5, 2024 Signed: Justice R. Wright