ONTARIO SUPERIOR COURT OF JUSTICE
OSHAWA COURT FILE NO.: 12748/11
DATE: 2012-07-25
BETWEEN :
Her Majesty the Queen
Respondent
— and —
Edward Taylor
Applicant
COUNSEL:
David R. Parke for the Respondent
David Barrison for the Applicant
HEARD: July 10, 2012
McCarthy J.
REASONS FOR JUDGMENT
[ 1 ] This is an application brought by the Accused under section 24(2) of the Canadian Charter of Rights and Freedoms , Part I of the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “ Charter ”), for an order excluding from evidence his statement given to Detective Constable Jennifer Forsythe on October 19, 2010. The issue on the application is confined to whether or not the applicant has established, on a balance of probabilities, that the police violated his rights under section 10(b) of the Charter . That section reads as follows: “Everyone has the right on arrest or detention (b) to retain and instruct counsel without delay and to be informed of that right.”
Breach of Section 10(b) Charter Rights
[ 2 ] On October 18, 2010, the Applicant was arrested in Napanee by Police Constable Underhill, acting at the request of DC Forsythe of the Durham Regional Police. The evidence establishes that the arrest took place at 1:31pm. PC Underhill testified that he read out the charges to the accused of sexual assault, sexual exploitation and invitation to touching, all contrary to the Criminal Code , R.S.C., 1985, c. C-46. This evidence is buttressed by the arrest report and by the evidence received from duty counsel who received the voicemail message from PC Underhill detailing the charges against the Applicant.
[ 3 ] The Applicant was read his rights by PC Underhill. The Applicant elected to speak with duty counsel at approximately 2:13 pm. He was returned to his cell at 2:20 pm. The Applicant was then picked up at approximately 6:45 pm by Police Constables McNamara and Amicone of the Durham Regional Police for the purpose of being transported back to Oshawa. At that time, PC McNamara learned that the applicant had spoken to duty counsel. She nevertheless re-advised him of his rights to counsel. The Applicant advised PC McNamara that he did not wish to speak to duty counsel but, rather, with a lawyer. PC McNamara advised the Applicant that he would be given the chance to call a lawyer of his choice upon arrival in Oshawa from a list of lawyers or a phone book. The Applicant replied “ya that is good.”
[ 4 ] The Applicant was escorted to Durham Police 17 Division in Oshawa where he was paraded before a sergeant in the presence of PC McNamara. He was not provided with the aforementioned list of lawyers or phone book. In response to questions put to him, the Applicant indicated that he did not wish to speak to either duty counsel or a lawyer.
[ 5 ] The Applicant was detained at 17 Division overnight. In the morning, he was taken to an interview room. An interview was conducted by DC Forsythe, commencing shortly after 8am. The video of that interview was recorded on a disc which was made Exhibit 1(a) to this application. The transcript of the interview was made Exhibit 1(b).
[ 6 ] The Applicant concedes that the Applicant was properly read his section 10(b) rights upon the arrest by PC Underhill. He concedes that the right to counsel was properly explained to the Applicant. However, the Applicant submits that the accused should have been afforded further section 10(b) rights and that the police should have facilitated the Applicant’s further consultation with a lawyer in light of both a material change in circumstances (in this case a change in jeopardy) or because there was reason to question the detainee’s understanding of his section 10(b) rights.
[ 7 ] Section 10(b) imposes three obligations upon the police. The first component is an informational component. The police are required to provide the necessary information to a detainee about his rights, including the ability to access free legal aid advice should he choose to do so. The second component relates to implementation: should the detainee choose to exercise the right to counsel, police must assist in giving the detainee a reasonable opportunity to exercise that right. The third component is an obligation to hold off interrogation until the implementation component is complete: see R. v. Manninen (1987), 1987 67 (SCC) , 34 C.C.C. (3d) 385 (S.C.C.)
[ 8 ] In R. v. Willier , 2010 SCC 37 () , [2010] 2 S.C.R. 429, the Supreme Court of Canada confirmed the law on the right of a detainee to counsel of his choice. The court held that detainees who choose to exercise their section 10(b) rights by contacting a lawyer trigger the implementation duties of the police. These duties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioning the detainee until that opportunity is provided. However, these obligations are contingent upon a detainee’s reasonable diligence in attempting to contact counsel.
[ 9 ] Counsel agree that the governing case law on the right to counsel is the trilogy of the Supreme Court of Canada cases: R. v. Willier , supra ; R. v. Sinclair , 2010 SCC 35 () , [2010] 2 S.C.R. 310; and R. v. McCrimmon , 2010 SCC 36 () , [2010] 2 S.C.R. 402.
[ 10 ] The case at Bar involves a consideration of whether the detainee, having been properly read his right to counsel upon arrest and having been permitted to speak to duty counsel on the afternoon of October 18, 2012, should have been afforded a further opportunity to consult a lawyer on October 19, 2012, at the commencement of, or at any point during, the interview in question.
[ 11 ] R. v. Sinclair established that, once the police have provided for an initial consultation, there is no further requirement to allow additional consultations with counsel unless there is a change in procedures involving the detainee, a change in jeopardy, or reason to question the detainee’s understanding of his section 10(b) rights .
[ 12 ] The Applicant concedes that this case does not involve a change in procedure. Rather, he contends that both a change in jeopardy and the existence of reason to question the detainee’s understanding of his 10(b) rights gave rise to the detainee’s renewed entitlement to seek counsel.
[ 13 ] I am not satisfied that the evidence discloses any change in jeopardy. The evidence of PC Underhill and PC McNamara establishes that the three charges were read to the Applicant at the time of his arrest and were recorded on the arrest report. Moreover, jointly tendered evidence established that duty counsel was provided with the complete list of the charges on the very day that they were laid. These charges were not increased or compounded in any way. While the Applicant, during his interview with DC Forsythe, expressed ignorance of the full extent of the charges, I am satisfied that the charges remained the same from the moment of arrest to the time of his request for counsel on October 19, 2010, at the commencement of the interview.
[ 14 ] The third category identified in R v. Sinclair as a situation in which it appears clear that a second consultation with counsel is required may be termed the “Reason to Question” test. It is summarized at paragraph 52 of the decision:
If events indicate that a detainee who has waived his right to counsel may not have understood his right , the police should reiterate his right to consult counsel, to ensure that the purpose of s. 10 (b) is fulfilled... More broadly, this may be taken to suggest that circumstances indicating that the detainee may not have understood the initial s. 10 (b) advice of his right to counsel impose on the police a duty to give him an opportunity to talk to a lawyer. (Emphasis added)
[ 15 ] I was not referred to any case law on what might constitute a lack of understanding of a section 10(b) rights. It was urged upon me by the Crown that the third category would not apply in the case at Bar. Firstly, this was not a case where the right to counsel had been waived; the Applicant had availed himself of the opportunity to speak to duty counsel. Secondly, there was no evidence tendered that could lead to the conclusion that the Applicant did not understand his right. The right was read to him. He acted on it promptly by asking to speak to duty counsel.
[ 16 ] In my view, the subjective understanding or misunderstanding of the detainee as it pertains to the right to counsel is the critical consideration in the third situation in Sinclair . The right to retain and instruct counsel must carry with it some qualitative component without which it might be nothing more than the meaningless procedural exercise of a detainee speaking to some faceless person at the other end of a telephone line. The exercise of the s. 10(b) right might become indistinguishable from the entire arrest and detention process which is entirely controlled by the police. As stated by the Supreme Court of Canada in R. v. Manninen at paragraph 23 :
The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights.
[ 17 ] At the outset of the interview, the Applicant revealed his profound lack of understanding of both the nature and role of duty counsel to whom he had been referred. The important excerpts from the interview are as follows:
F: And then did they provide a lawyer for you? A duty counsel?
T: They provided me with a phone call with duty counsel.
F: Ok, and were you satisfied with that?
T: No.
F: Okay. And what was it that you weren’t satisfied with?
T: I sat in a cell all night.
F: No, I just mean – your lawyer talk, the conversation you had with the duty counsel.
T: I haven’t talked to a lawyer. I talked to duty counsel. That’s not a lawyer.
F: Well, they’re lawyers.
T: No.
F: Maybe not your lawyers, but they’re lawyers.
T: That’s right.
F: So, do you have a lawyer?
T: No, I do not.
[ 18 ] A short time later, the Applicant abruptly interrupted the questioning and engaged in the following exchange with DC Forsythe:
T: Where’s my lawyer?
F: Well, we don’t have lawyers that sit in the room, but you consult with a lawyer over the phone.
T: Well, I would like to consult with a lawyer.
F: You want to consult with a lawyer again?
T: Yeah.
F: Even though you did last night?
T: I consulted with duty counsel. That wasn’t my lawyer. I don’t have a lawyer. So, I would like to get a lawyer and defend myself against these charges.
F: Okay. So, you can’t get to a lawyer right away. I mean you can – you’ll have to do that um, on your own. That’s why we provide duty counsel. And uh, from what I understood you consulted with duty counsel last night. So, all I’m wanting to do is talk to you about the allegations.
T: Well, all I want to do is get a lawyer, so no common ground.
[ 19 ] There were other occasions during the interview when the Applicant made a request for a lawyer. It is clear that the police did not facilitate the request for consultation with counsel. The interview proceeded to its conclusion.
[ 20 ] In her testimony, DC Forsythe took the rather confusing position that, had the Applicant made a request to consult with duty counsel, or had the Applicant provided her with the name of a lawyer or the name of his lawyer, she would have accommodated the request and facilitated that consultation. She even conceded that she would have had an obligation to allow him to speak with a specific lawyer, even though the Applicant had spoken to duty counsel following his arrest. Because the Applicant could not provide the name of a lawyer to consult, DC Forsythe did not accommodate the request for consultation. She did not provide the Applicant with a list of lawyers or a telephone book. She admits that she would have been able to do so. She also admits that, since then, she has learned that providing a phone book or yellow pages is a common police practice.
[ 21 ] The court is concerned with the arbitrary exercise of discretion by the police in this instance. It seems to me an unwarranted and cumbersome distinction to draw between detainees who can name specific lawyers to consult and those who content themselves with the services of duty counsel on the one hand, as opposed to those who wish to consult a lawyer but do not have the name of a lawyer in their possession on the other hand. Surely, a reasonable opportunity to exercise the right to retain and instruct counsel under section 10(b) cannot exclude situations where individuals do not yet have the name of a lawyer who they wish to obtain.
[ 22 ] Yet, it certainly seems that in light of the reasoning in R. v. Sinclair , supra , DC Forsythe would have had no obligation to afford the right to further counsel to the Applicant in the absence of a change in jeopardy, or where there was reason to question the detainee’s understanding of his section 10(b) rights.
[ 23 ] It is clear from the passages from the transcript cited above that the Applicant was expressing doubt over whether he had actually spoken to a lawyer. It is also clear from the passages that the Applicant was not satisfied with having spoken to duty counsel because duty counsel was not his lawyer. We cannot know the substance of the conversation that took place with duty counsel on October 18, 2012. Nor did we hear any evidence of the state of mind of the Applicant in the aftermath of that conversation. There is nevertheless, a clear indication that this detainee may not have fully understood his rights at the very time that he would have been seen to be exercising them. If a detainee is under a mistaken impression of the role or nature of the duty counsel to whom he is speaking, it cannot be said that he has availed himself of his right to “retain and instruct counsel.” If a detainee is not confident that he is speaking to a lawyer, he may omit critical details, discount the quality of the advice he is receiving, or fail to pose questions that one would reserve for a lawyer. If a detainee is not confident that he is speaking with his lawyer but rather with a lawyer with whom he is not in a relationship of the strictest confidence, then it is almost certain that he would be reluctant to provide full disclosure to, entrust confidence in or accept advice from that lawyer.
[ 24 ] It is abundantly clear from the Applicant’s exchange with DC Forsythe that, in his mind at least, duty counsel was either not a lawyer or was not his lawyer. While DC Forsythe may have been trying to suggest to him that duty counsel was “maybe not your lawyer but they are lawyers” it is entirely possible that the detainee heard this as “ their lawyers ,” the word “their” being employed as a possessive term in the same manner as the term “ your lawyer . ”
[ 25 ] In my view, these exchanges reveal that there was reason to question the Applicant’s understanding of his section 10(b) rights, both at the outset of the interview and, more critically, at the time that he was seen to be exercising his section 10(b) rights, that is at the time of speaking to duty counsel on October 18, 2010. The occasion of speaking to duty counsel was the only time that the Applicant was afforded an opportunity to exercise his section 10(b) rights. It does not matter that his misunderstanding was addressed by DC Forsythe during the interview. Indeed, in her evidence, DC Forsythe conceded that she believed, at the time of the interview, that the Applicant misunderstood the role of duty counsel. That alone should have satisfied her that the Applicant may not have understood his right to counsel. The third type of situation envisaged in R. v. Sinclair had arisen. The Applicant’s repeated and persistent request to speak to a lawyer should have triggered the police to afford him a reasonable opportunity to exercise the right to retain and instruct counsel without delay. In addition, the police were under a duty to refrain from attempting to elicit evidence from him until he had had a reasonable opportunity to retain and instruct counsel: see R. v. Manninen , supra .
[ 26 ] In my view, the third category test from R. v. Sinclair should apply to this case, even though the Applicant did not waive his right to counsel upon arrest. The purpose of affording further section 10(b) rights would be the same: to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights. I would distinguish the case at Bar from the situation in R . v. McCrimmon , supra . In that case, the detainee, having been afforded the opportunity to speak with duty counsel, confirmed, at the end of the conversation, that he was satisfied with the consultation and that he understood the advice provided by duty counsel. In the present case, there was no such satisfaction expressed by the Applicant. Indeed, in his brief dealings with PC McNamara prior to being transported from Napanee to Durham, he had clearly expressed his desire not to be put in touch with duty counsel again.
[ 27 ] I find that the Applicant was reasonably diligent in attempting to obtain counsel. He expressed his wish to have access to a lawyer rather than duty counsel to PC McNamara. Although he declined a lawyer during the parade in Oshawa on the evening of his arrest, he renewed the request at the very outset of his interview the next morning. There was nothing about this case that necessitated that the interview or evidence gathering process commence immediately. Moreover, the Applicant’s inability to name a specific lawyer cannot be said to be unreasonable. He had been brought in from Napanee the evening before his request. He did not reside in the Oshawa area. In all of the circumstances, it would have been practical, reasonable and expeditious to provide him with either a copy of the yellow pages or a list of local lawyers and access to a phone. Surely, this straightforward approach to facilitating a section 10(b) right would fit into the concept of a “reasonable opportunity.”
[ 28 ] I conclude therefore, that the evidence contained in Exhibits 1(a) and 1(b) was obtained from the Applicant in a manner that infringed or denied his right to retain and instruct counsel without delay on October 19, 2010.
Exclusion of Evidence Pursuant to Section 24(2) of the Charter
[ 29 ] The evidence in question must be excluded if it has been established that, having regard to all of the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[ 30 ] In R. v. Grant (2009), 2009 SCC 32 () , 245 C.C.C. (3d) 1, the Supreme Court of Canada reconsidered the framework for exclusion as articulated in earlier cases. The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of and public confidence in the justice system. The inquiry is objective and asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute. In considering section 24(2), the court must have regard to the following: (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. The court must balance the assessments under each of these lines of inquiry to determine whether, considering all of the circumstances, admission of the evidence would bring the administration of justice into disrepute.
[ 31 ] The Crown essentially conceded that, if there is a finding of an infringement of the detainee’s section 10(b) rights, then there was a negative impact on the Charter -protected interests of the Applicant because a statement against interest was procured from him in the minutes following that infringement of his section10(b) rights. Clearly, the second prong of the R. v. Grant analysis would argue in favour of exclusion of the evidence.
[ 32 ] I consider the Charter -infringing state conduct in this case to be serious. The Crown argued skilfully and ably that the conduct by DC Forsythe was inadvertent or minor and certainly not severe or deliberate. After all, the Supreme Court of Canada decision in R. v. Sinclair , supra , was handed down a mere 11 days before the infringement. Yet, in my view, and in light of all of the circumstances, it remains serious. By her own admission, DC Forsythe believed that the Applicant had misunderstood the role of duty counsel. It is clear from the outset of the interview that the Applicant believed that he had not availed himself of the right to counsel because the duty counsel with whom he spoke was either not a lawyer or was not a lawyer working in his interest. The right to retain and instruct counsel is one of the Charter obligations that require the police not just to inform, but to implement. It is the police who are in the unique position to afford this right to an accused. By virtue of R. v. Sinclair , they are called upon to remain aware of events and circumstances that arise or unfold during the continuum of arrest and detention which may indicate an understanding or state of mind of the accused as it pertains to his section 10(b) rights. This is no easy task to be sure; however, in the case at Bar, DC Forsythe was of the belief that a level of misunderstanding and confusion existed. The failure to afford section 10(b) rights to the Applicant was, in my view, a serious one.
[ 33 ] Moreover, affording a reasonable opportunity to speak to a lawyer by providing a list of phone numbers or a copy of the yellow pages would not have been onerous, time consuming or out of keeping with established protocol at 17 Division. Finally, the Applicant’s repeated and persistent requests to speak with a lawyer were met with a combination of deflection, misdirection and objection by the Detective Constable. In my view, these factors serve to aggravate the seriousness of the Charter breach. This first factor in the Grant test, therefore, argues in favour of exclusion of the evidence.
[ 34 ] The third prong in the Grant test would certainly argue in favour of allowing the statement into evidence in spite of the Charter breach. I was referred to the following passage in R. v. Smith , 1989 27 (SCC) , [1989] 2 S.C.R. 368 where L’Heureux-Dube J. stated as follows:
Where freely and voluntarily given, an admission of guilt provides a reliable tool in the elucidation of crime, thereby furthering the judicial search for the truth and serving the societal interest in repressing crime through the conviction of the guilty.
[ 35 ] Having balanced the considerations to take into account in a section 24(2) analysis as laid out in R. v. Grant , I am satisfied that the evidence should be excluded. While the concern for truth seeking is a relevant consideration in this or any section 24 (2) application, I am of the view that the admission of reliable evidence without regard to how it was obtained is inconsistent with the Charter ’s affirmation of rights. As stated in R. v. Grant :
More specifically, it is inconsistent with the wording of section 24(2) which mandates a broad inquiry into all of the circumstances, not just the reliability of the evidence.
[ 36 ] For the reasons set out above, the evidence contained in Exhibits 1(a) and 1(b) to this application shall be excluded at the trial of this matter.
The Honourable Mr. Justice McCarthy
DATE RELEASED: July 25, 2012