ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-30392
DATE: 2012/10/10

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – JAMES SARSFIELD Applicant

Roderick W. A. Sonley, for the Crown
Jeffrey Langevin, for the Applicant

HEARD: October 2, 2012

charter application decision

Kane J.

[ 1 ] This application is brought pursuant to ss. 7, 10(a), 10(b) and 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 [“ Charter ”]. It proceeded on September 7 and October 2, 2012. The applicant sought an order excluding all statements made by the applicant to police while detained in their custody.

[ 2 ] The grounds in the Notice of Application are:

(a) Police by s. 10(a) of the Charter have a duty to inform a detainee of all of the reasons for his arrest or detention.

(b) Police, upon the arrest and detention of the applicant, failed to inform him of all of the reasons for his arrest and detention. Police also failed to inform the solicitor for the applicant of the true nature and extent of the reasons for the applicant’s detention.

(c) As a result of the above failure, the applicant’s right to counsel could not be exercised in a meaningful way as he and his lawyer were not made aware of the extent of the applicant’s jeopardy at that time, thus preventing the applicant from truly appreciating the nature of his jeopardy and consequent risk of self-incrimination.

(d) The s. 10(b) right to counsel was necessarily violated because the applicant’s understanding of his jeopardy precluded him from properly exercising, or making an informed choice with respect to exercising the right to counsel.

(e) The above breach of the applicant’s Charter rights was flagrant. The proper remedy in these circumstances is to exclude any evidence collected from the applicant which is attributed to him by way of possession pursuant to s. 24(2) of the Charter , failing which the administration of justice would be brought into disrepute.

[ 3 ] The applicant stated that there is no issue as to voluntariness.

[ 4 ] The applicant presented no evidence on this application.

[ 5 ] The Crown called three witnesses. Each is a member of the R.C.M.P. The first officer, (Officer 1), arrested Mr. Sarsfield in his place of employment. The second officer, (Officer 2), dealt with the applicant at the police station and contacted the lawyer identified by the applicant. The third officer, (Officer 3), conducted a recorded interview of the applicant on November 6, 2009.

EVIDENCE ON THE APPLICATION

[ 6 ] The applicant was arrested in a bar in Ottawa where he was employed on November 5, 2009, as a result of a CDSA and Criminal Case investigation which had been carried on for some one and one-half years called Project A-Wire. This was a joint R.C.M.P. and the Ottawa Police investigation.

[ 7 ] At approximately 16:00 hours on November 5, 2009, Officer 1 and three other police officers came with a search warrant to search the bar where the applicant was employed and arrest a number of individuals. The investigation to that point included wire tap intercepts causing police to believe that the applicant and others were involved in the offences of conspiracy to traffic drugs and drug trafficking.

[ 8 ] The applicant at the time was seated in the bar at a table watching television with a female patron. Several other people, including the woman sitting at the table with the applicant and two individuals outside the bar, were arrested as part of this investigation at the same time and charged with drug related offences.

[ 9 ] Officer 1 testified that the investigation to that point indicated the applicant had conspired to traffic in drugs and had trafficked in drugs. It was the intention of Officer 1 to arrest the applicant on both grounds. Officer 1 visually identified the applicant at the table, approached the applicant and arrested him.

[ 10 ] Officer 1 testified at one point during his testimony-in-chief that he told the applicant that he was being arrested for drug trafficking. At another point in his testimony-in-chief, Officer 1 stated that he told the applicant he was being arrested for conspiracy to traffic in drugs and drug trafficking. During cross-examination on this point, Officer 1 admitted that his notes made at the time do not state what grounds the applicant was told as the reason for arrest. Officer 1 testified that his subsequently prepared typed summary, states he told the accused he was being arrested for trafficking in drugs.

[ 11 ] Officer 1, based on recollection, remained adamant that he told the applicant he was being arrested for committing the two offences as the investigation revealed the applicant had committed both offences and the purpose of the arrest was for committing both offences.

[ 12 ] Officer 1 then read to the applicant his rights from a police issued printed card used at the time. Specifically, he told the applicant he had the right to retain a lawyer and asked whether he wished to consult with one. The applicant replied, “I don’t want any lawyer for now.”

[ 13 ] Officer 1 then read from the same police card, the applicant’s right to remain silent and that anything he said could be used in evidence. The applicant told the officer he understood that statement.

[ 14 ] Officer 1 then searched the applicant and while doing so, asked whether he had on his person or in the bar any dangerous objects. The applicant replied “there are no drugs in the bar.” This is the first of two statements to police the applicant seeks excluded from the evidence at trial.

[ 15 ] Officer 2 was involved in the execution of the search warrants in this matter on the date in question. He then dealt with several of the individuals arrested in this matter at the police station.

[ 16 ] Officer 2 at the police station over a one-half hour period at approximately 18:00 hours on November 5, 2009, dealt with the applicant and three other persons arrested in this investigation.

[ 17 ] Officer 2 did not speak to Officer 1 before carrying out the following actions.

[ 18 ] The first person dealt with by Officer 2 at the police station was Mr. Wall who asked to speak to a lawyer by the name of Addelman. Officer 2 telephoned and spoke to Mr. Addelman, identified himself, and stated that Mr. Wall had been arrested for drug trafficking and drug related offences. Mr. Wall then spoke to this lawyer.

[ 19 ] Officer 2 then, on the direction of Mr. Saikaley, telephoned the same Mr. Addelman and advised that Mr. Saikaley had been arrested for drug trafficking and drug related offences and wanted to speak to him which then occurred.

[ 20 ] Officer 2 was then asked by Ms. Dingwell to speak to Mr. Addelman. Officer 2 again telephoned and told Mr. Addelman that she had been arrested for drug trafficking and drug related offences. Ms. Dingwell then spoke to Mr. Addelman.

[ 21 ] Officer 2 then asked the applicant whether he wished to consult with a lawyer. The applicant said yes and asked to speak to Mr. Addelman.

[ 22 ] Officer 2 communicated no information to the applicant about the investigation or the reason for his arrest before the applicant spoke to counsel.

[ 23 ] Officer 2 called Mr. Addelman at 18:13 and told him the applicant had been arrested for drug trafficking and drug related offences. The applicant was then given the telephone and spoke to Mr. Addelman. At the conclusion of that call at 18:15, the applicant told Officer 2 that he was satisfied with this call with counsel.

[ 24 ] Officer 3 between 01:31 and 01:39 hours on November 6, 2009, conducted a recorded interrogation of the applicant at the police station. Officer 3 did not speak to Officer 1 or 2 before conducting this interrogation. A typed script of that interrogation was filed on this application.

[ 25 ] At page 3 of the script, Officer 3 tells the applicant he will describe what the applicant is facing in relation to his arrest. Officer 3 then states:

(a) What the applicant is facing is serious.

(b) There has been a large investigation underway for over a year involving the serious offences of trafficking of drugs, trafficking of cocaine, and conspiracy to traffic cocaine, which are some of the charges the applicant will be facing.

(c) The officer hopes the applicant can provide some information regarding pictures of individuals posted on a wall before him.

(d) The applicant has the right as soon as he wants to retain and instruct legal counsel.

(e) The applicant has the right to call a lawyer. The applicant advises he has spoken to a lawyer and is satisfied with that conversation.

(f) Officer 3 asks the applicant whether he would like to speak to another lawyer. The applicant does not ask to call another lawyer.

[ 26 ] At p. 21, just before the end of the interrogation:

(a) The applicant states that he will let his lawyer answer the question whether the applicant sells drugs.

(b) In answer to the question whether he had ever sold drugs, the applicant states that he has made calls to other people and hooked them up, but “just a gram of pot”.

(c) Officer 3 in response to this remark, states that the police have that level of activity on the lines, in which the applicant is receiving that drug to sell and selling it and while it demonstrates the applicant is part of dealing drugs, Officer 3 states that he did not consider that important and had not raised the subject of marijuana in the interrogation because it involves small amounts of marijuana, whereas cocaine is much more serious. Officer 3 states to the applicant, it is the applicant who raised the subject of marijuana.

(d) No further questions are asked of the applicant, other than whether the applicant has any questions.

(e) The applicant replies that he has no questions for Officer 3.

(f) A brief discussion then occurs as to when the applicant might be released from custody. The interrogation then ends.

INDICTMENT

[ 27 ] Pursuant to the original indictment dated July 12, 2011 (the Indictment), Mr. Sarsfield was charged with 16 criminal offences, namely:

(a) That he, between the 1 st day of January, 2009 and the 5th day of November, 2009 (the Time Period) conspired and agreed with others to commit the indictable offence of trafficking in a prohibited substance under Schedule I of the Controlled Drugs and Substances Act , namely cocaine, contrary to Sections 5(1) and 5(3)(a) of the Controlled Drugs and Substances Act (the Act), thereby committing an offence pursuant to Section 465(1 )(c) of the Criminal Code (the Code ).

(b) Did during the Time Period together with others, possess cocaine for the purpose of trafficking, contrary to Section 5(2) of the Act thereby committing an offence pursuant to Section 5(3)(a) of the Act.

(c) Did during the Time Period together with others, traffic in cocaine contrary to the Act.

(d) Did with others during the Time Period participate or contribute in the activities of a criminal organization to facilitate or commit a criminal offence in association with a criminal organization contrary to the Code .

(e) Did with others during the Time Period commit an indictable offence in association with a criminal organization contrary to the Code .

(f) Did with others during the Time Period possess proceeds of property exceeding $5,000 knowingly obtained from a criminal activity, namely trafficking in a prohibited substance under the Act and contrary to the Code .

(g) Did conspire with others during the Time Period to traffic in cannabis resin contrary to the Act and did commit an offence under the Code .

(h) Did with others possess cannabis resin for the purpose of trafficking during the Time Period contrary to and committing an offence under the Act.

(i) Did with others during the Time Period traffic in cannabis resin contrary to and committing an offence under the Act.

(j) Did with others during the Time Period conspire to traffic in cannabis marijuana contrary to the Act and committing an offence under the Code .

(k) Did with others during the Time Period possess cannabis marijuana for the purpose of trafficking contrary to the Act and committing an offence under the Code .

(l) Did with others during the Time Period traffic in cannabis marijuana contrary to the Act and committing an offence under the Code .

(m) Did between July 1 and November 5, 2009, traffic in cannabis contrary to the Act.

(n) Did with others on November 5, 2009 possess cocaine for the purposes of trafficking contrary to the Act.

(o) Did with others on November 5, 2009 possess cannabis resin for the purpose of trafficking contrary to and committing an offence under the Act.

(p) Did with others on November 5, 2009 have possession of proceeds of crime in excess of $5,000 knowing it came from the trafficking of a prohibited substance contrary to and committing an offence under the Act.

LEGAL ANALYSIS

FIRST STATEMENT - CHARTER SECTION 10A AND WAIVER

[ 28 ] The applicant has the onus in this application. Clearly, notes made at the time of the arrest are strong evidence as to what was then said. The officer’s notes made at the time are silent as to what reason was communicated. The typed summary was prepared later and is a summary.

[ 29 ] This Court doubts the Officer has a specific recollection of the exact words he used three years ago in this particular conversation.

[ 30 ] Based on the facts however that:

(a) Officer 1 recognized the applicant upon entering the bar based on his knowledge from the investigation of the applicant’s involvement level in this particular drug activity,

(b) That investigation indicated the applicant was part of a conspiracy to traffic in drugs and had trafficked in drugs,

(c) The rights card read by Officer to the applicant has two blanks in the text where the grounds for arrest are to be spoken,

(d) Police officers normally receive some training as to the importance of citing the reasons for arrest upon arresting someone,

(e) The repeated assertions in testimony of Officer 1 that he communicated both offences upon this arrest, and

(f) The absence of contradictory evidence that no reasons were cited by Officer 1 or only one offence and not both were communicated,

this Court accepts the testimony of Officer 1 that he was there to arrest the applicant for breaching both prohibitions and that he cited both offences to the applicant as the reasons for his arrest. The applicant was told he was arrested for trafficking in drugs and conspiracy to traffic in drugs by Officer 1.

[ 31 ] The applicant, after being told he was arrested for conspiring to traffic drugs and for trafficking in drugs, stated in response to the statement that he had the right to speak to a lawyer and the question whether he wished to speak to one, replied; “ No, I don’t want any lawyer for now.”

[ 32 ] The applicant argues Officer 1 provided the applicant with insufficient details, including what kind of drugs were involved, the time frame of the offences and with whom did he conspire. Accordingly, it is argued the applicant was not advised as to the reason he was arrested, his level of jeopardy and consequent risk of self-incrimination. The failures to state this additional information at the time of arrest in addition, it is argued, invalidate his waiver to consult with counsel.

[ 33 ] The Supreme Court in R. v. Borden (1994), 1994 63 (SCC) , 92 C.C.C. (3d) 404 (S.C.C.), paras. 44 and 45 , dealt with a blood sample provided in relation to one offence being used without knowledge to the accused in relation to another investigation of a separate undisclosed offence. The court stated:

[44] … One of the primary purposes of requiring the police to inform a person of the reasons for his or her detention is so that person may make an informed choice whether to exercise the right to counsel, and if so, to obtain sound advice based on an understanding of the extent of his or her jeopardy: R. v. Black , 1989 75 (SCC) , [1989] 2 S.C.R. 138, at pp. 152-53; R. v. Smith , 1991 91 (SCC) , [1991] 1 S.C.R. 714, at p. 728.

[45] … This is not a case where, as in Smith , supra , or in Black , supra , the accused knew generally of the events or circumstances that had led to his detention, but was under-informed as to their practical or legal consequences. … When the nature of the police investigations expanded, the respondent should have been reinformed of his right to counsel.

[ 34 ] The Supreme Court in Smith , supra , stated that s. 10(a) of the Charter “gives the detainee the right to be promptly advised of the reasons for his or her detention. It is exemplified by three related concepts: (1) the “tainting” of a warning as to the right to counsel by lack of information; (2) the idea that one is entitled to know “the extent of one’s jeopardy”; and (3) the concept of “awareness of the consequences” developed in the context of waiver.”

[ 35 ] The Supreme Court in Smith , supra , at para. 26 , states that the accused must be advised such that he understands “ generally the jeopardy in which he ... finds himself, and appreciate the consequences of deciding for or against counsel.” (Emphasis added)

[ 36 ] The Court in Smith , supra , at para. 27 states that “[i]t has never been suggested, however, that full information is required for a valid waiver. Indeed, if this were the case, waivers would seldom be valid, since the police typically do not know the whole story when the accused is arrested.” (Emphasis added)

[ 37 ] At para. 28 in Smith , supra , the Court states: “The question reduces to this: … was the accused possessed of sufficient information to make his waiver of counsel valid? To my mind, to establish a valid waiver of the right to counsel, the trial Judge must be satisfied that in all the circumstances revealed by the evidence the accused generally understood the sort of jeopardy he faced when he … made the decision to dispense with counsel. The accused need not be aware of the precise charge faced. Nor need the accused be made aware of all the factual details of the case . What is required is that he or she be possessed of sufficient information to allow making an informed and appropriate decision as to whether to speak to a lawyer or not.” (Emphasis added)

[ 38 ] It is noted that police at the moment of this arrest were, as part of their investigation, executing search warrants of the bar and other locations which could lead to new information of criminal activity and evidence. The investigation and the information obtained by police were ongoing at the time of this arrest.

[ 39 ] The applicant had been an employee in this bar for some time and must therefore have had some knowledge as to the interior of the bar. After being advised why he was arrested and waiving the right to speak to a lawyer, the applicant told police that there were no drugs in the bar.

[ 40 ] Based on the above passages in Smith , supra , the applicant under s. 10(a) upon arrest, need not be advised as to each and every element of the precise charge(s) nor be made aware of all the factual details of the case. Information required under s. 10(a) is not and must not be converted by analogy into the Crown’s subsequent disclosure obligation. The arresting officer cannot be expected under s. 10(a) to read the current investigation report so as to communicate all details as to what are the specific drugs, with whom and when. What the applicant seeks is the start of a slippery slope.

[ 41 ] This absence of this level of detail does not contravene the necessity articulated by the Supreme Court to communicate the grounds of arrest sufficiently that the individual understands the level of jeopardy, the risk of prejudice should they provide information and whether to exercise the right to consult with counsel. The fact that the applicant was not told that the conspiracy and trafficking was in marijuana, cocaine, when or with whom, did not fall below the requirement level as articulated by the Supreme Court above, nor did it breach his s. 10(a) rights.

[ 42 ] The applicant was told he was being arrested for conspiracy to traffic drugs and for trafficking in drugs. There was no undisclosed offence then under investigation.

[ 43 ] It is informative that the charges ultimately laid in the above indictment are variations of possession and trafficking in drugs including: conspiracy to traffic, possession for the purpose of trafficking, trafficking with others in a criminal organization, proceeds of crime from trafficking of drugs etc.

[ 44 ] Advising the applicant he was arrested for trafficking of drugs and conspiracy to traffic in drugs was adequate identification of the grounds for arrest to allow the applicant to:

(a) Understand the nature of jeopardy he faced,

(b) Appreciate the resulting risk of self-incrimination, and

(c) Understand the consequences of deciding whether to speak to legal counsel.

[ 45 ] This Court concludes that the applicant received proper and sufficient notice under s. 10(a) and that his rights thereunder were not breached in relation to his first statement to police.

[ 46 ] A breach of s. 10(a) in not identifying the reason for the arrest negatively impacts the accused’s right to counsel under s. 10(b). Having found that notice to have been proper, the applicant’s waiver of his s. 10(b) right to consult with counsel is valid. In this case, that right was waived based on the applicant then possessing an adequate level of knowledge. That waiver is determinative of the s. 10(b) right in relation to this first statement to police.

INADEQUATE RIGHT TO LEGAL COUNSEL

[ 47 ] The applicant argues that because Officers 1 and 2 did not speak to one another before Officer 2 told Mr. Addelman that the applicant had been arrested for drug trafficking and related drug offences, the lawyer’s ability to meaningfully advise his client was impaired with the result that the applicant was not afforded his s. 10(b) right to fully consult with and be advised by his lawyer.

[ 48 ] This Court has determined that Officer 1 afforded the applicant his rights under s. 10(a). Officer 2’s involvement thereafter occurs and fits within the applicant’s s. 10(b) rights.

[ 49 ] Section 10(b) rights, pursuant to R. v. Willier , 2010 SCC 37 () , [2010] S.C.J. No. 37, para. 29 , require the police:

(a) To inform the detainee of his right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel,

(b) To provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances), and

(c) To refrain from eliciting evidence from the detainee until he has had that reasonable opportunity (again, except in cases of urgency or danger).

[ 50 ] Officer 1 complied with obligation (a) above. Officer 2 complied with each of these three obligations. No more was required of Officer 2.

[ 51 ] The applicant’s rights under s. 10(b) were not infringed by the fact that Officers 1 and 2 did not speak to one another before the call was made to counsel.

SECOND STATEMENT - CHARTER SECTIONS 10(A) AND 10(B)

[ 52 ] As determined above, the adequacy of the communication of the reasons upon arrest by Officer 1 fulfilled the obligation under s. 10(a) as to the second statement.

[ 53 ] As determined above, the right to speak to legal counsel was waived. That waiver is also operative and determinative as to the second statement given in the interrogation.

[ 54 ] The applicant rights under ss. 10(a) and 10(b) therefore were not breached in relation to the second statement.

[ 55 ] Should the above conclusion regarding ss. 10(a) and 10(b) as to the second statement be in error, this Court will examine those sections again in relation to the second statement.

[ 56 ] Section 10(a) and s. 10(b) rights are closely tied together or inter-related: see R. v. Smith (1991), 1991 91 (SCC) , 63 C.C.C. (3d) 313 (S.C.C.) and R. v. Evans (1991), 1991 98 (SCC) , 63 C.C.C. (3d) 289 (S.C.C.).

[ 57 ] Officer 3 provided the applicant with further reasons for his arrest at the commencement of this second statement; namely trafficking in drugs, trafficking in cocaine, conspiracy to traffic in cocaine and related charges. The applicant was also told that the charges he was facing were very serious. That additional detail and warning is in addition to the initial notice received from Officer 1 before the giving of this second statement. The applicant therefore knew the reasons for detention, the subject-matter that the police intended to address, the nature of his jeopardy and the consequent risk of self-incrimination before giving this second statement: see: R. v. Sawatsky (1997), 1997 511 (ON CA) , 118 C.C.C. (3d) 17 (Ont. C.A.), at para. 29 and R. v. Curlin , 2009 CarswellOnt 2256 (S.C.J), at para. 45 .

[ 58 ] The applicant received and waived another offer to consult with legal counsel at the start of the interrogation. This was the third offer to consult with legal counsel.

[ 59 ] These expanded reasons for arrest and this third offer to speak to legal counsel were not however communicated until five hours after the time of the arrest contrary to the time requirement under ss. 10(a) and 10(b), namely upon arrest. That time contravention, when viewed in isolation, is a serious breach of ss. 10(a) and 10(b). That seriousness however becomes minor when viewed within the context of all the events, and in particular the fact that by the time of those breaches, the applicant had:

(a) Received some reasons for arrest from Officer 1,

(b) Waived the offer made by Officer 1 to speak to counsel,

(c) Spoken to legal counsel, and

(d) Was offered and did not exercise a further opportunity to speak to legal counsel by Officer 3 before giving the second statement.

[ 60 ] As to s. 10(b), it is important to remember that before giving the second statement to police, the applicant had spoken to legal counsel who advised him to say nothing. That conversation is not conclusive as to the s. 10(b) rights regarding the second statement. It is however relevant surrounding information as to the applicant’s level of knowledge before giving that statement.

[ 61 ] Officer 3 also at the start of the interrogation gave the applicant the right to speak to counsel. That offer was not accepted. Although late in time, that offer negatively impacts on this argument of the applicant as to the second statement.

[ 62 ] The combination of all these surrounding events leads this Court to conclude that:

(a) The seriousness of the s. 10(a) and 10(b) time breaches as to the second statement is minimal in this case,

(b) The negative impact on this Charter right of the applicant given the above factors is low, and

(c) Society has an interest that these charges be determined on the merits versus exclusion of this evidence on a relatively minor time delay breach.

[ 63 ] The administration of justice under s. 24(2) of the Charter would not fall into disrepute if this evidence as to this second statement was admitted. It should be admitted notwithstanding this time delay breach.

MISUNDERSTANDING AND RENEWED RIGHT TO LEGAL COUNSEL

[ 64 ] In response to the question during the interrogation whether he had ever sold drugs, the applicant argues that his admission to Officer 3 that he had connected some people in relation to small quantities of pot, demonstrates his misunderstanding of what was being investigated and alleged against him and the degree of jeopardy he was facing. The applicant argues that he and the officer were talking about different things, namely a few grams of pot versus trafficking and conspiracy to traffic cocaine and he therefore should have been advised of and afforded a new right to consult with counsel because of this misunderstanding.

[ 65 ] This Court does not accept this interpretation of the above exchange with Officer 3 or the argument that the applicant misunderstood the severity of the jeopardy he was facing.

[ 66 ] At the start of this interview, Officer 3 stressed the seriousness of the charges the applicant was facing. Officer 3 stated those charges included trafficking in drugs, trafficking in cocaine and conspiracy to traffic in cocaine. It is the applicant who introduced the subject of marijuana and connecting people for the sale of small quantities of marijuana which, subject to quantities, might be considered less serious as compared to cocaine.

[ 67 ] This was not a misunderstanding as to what was being discussed between the applicant and Officer 3. It was an admission of what might be considered to be a lower level of culpability compared to the severity of charges he was told he was facing.

[ 68 ] In response to the argument that at this point in the interrogation, Officer 3 should have halted the conversation and renewed the offer to consult with counsel because a separate and new area of jeopardy had been introduced by the applicant’s reference of marijuana, this Court does not accept that argument because,

(a) The notice at the beginning of this interrogation was not limited to cocaine. It commenced with “trafficking in drugs”,

(b) Marijuana was not a new focus of the investigation to one involving a different and unrelated offence or to a significantly more serious offence than that contemplated at the time of the initial s. 10(b) notice as discussed in R. v. Evans , supra , and

(c) Officer 3 ended the interrogation almost immediately after the applicant referred to marijuana and asked no subsequent questions about that subject and the applicant.

[ 69 ] The above reference to marijuana was not a fundamental and discrete change in the purpose of the investigation involving a different and unrelated offence, nor a significantly more serious offence than that communicated at the time of the warning within the concept established in R. v. Sawatsky , supra , at paras. 29-30 and 36 .

[ 70 ] The Supreme Court in R. v. Sinclair , 2010 SCC 35 , para. 53 , identified three occasions where the s. 10(b) rights require a renewed right to counsel. Those include:

(a) New procedures involving the detainee,

(b) A change in the jeopardy facing the detainee, or

(c) Reason to believe the first information provided was deficient.

[ 71 ] None of the above or other reason exists on these facts to conclude that the applicant at this point was entitled under s. 10(b) to a renewed right to legal counsel.

[ 72 ] This application to exclude these two statements from evidence is therefore dismissed.

Kane J.

Released: October 10, 2012

ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: HER MAJESTY THE QUEEN Respondent – and – JAMES SARSFIELD Applicant
charter application decision
Kane J.

Released: October 10, 2012