COURT FILE NO.: 11-35-00
DATE: 2012-12-19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Jason Mark Boutilier, Christopher M. Sandford and Garrett J. Henderson
Derek Zuraw, for the Crown
Maurizio and Paul Settimi, for Jason Mark Boutilier
Kim Edwards and Robert Yanch for Christopher M. Sandford
Devin Bains and Pamela Zbarsky for Garrett J. Henderson
HEARD: October 10, 11, 15, 16, 17 and 22, 2012
The Honourable Mr. Justice G. E. Taylor
Ruling RE admisibiity of Statement
Introduction
[1] Garrett Henderson is jointly charged with first-degree murder together with Jason Boutilier and Christopher Sandford. The Crown seeks a ruling that a statement made by Garrett Henderson to a police officer was voluntary. Garrett Henderson seeks to have that statement excluded because of a breach of his rights pursuant to s. 10(b) of the Charter of Rights and Freedoms to retain and instruct counsel without delay following his arrest and to be informed of that right. To decide these issues, a blended voir dire/Charter application was held.
Facts
[2] On February 8, 2010, Garrett Henderson was arrested and charged with first-degree murder in the October 1999 death of Aaron Reid. He was arrested at the courthouse in Hamilton, Ontario. Immediately prior to his arrest, Garrett Henderson had been in custody for approximately 5 months awaiting trial on charges in Hamilton. When the Hamilton charges were withdrawn he was arrested on the present charge.
[3] On February 8, 2010, Detectives Michael Sciberras and Bradley Loveday of the Brantford Police Service drove to the courthouse in Hamilton for the purpose of arresting Garrett Henderson for the murder of Aaron Reid. When they arrived at the courthouse they spoke to the Crown Attorney with carriage of the Hamilton charges. They learned that Ian Begg was the lawyer representing Garrett Henderson in relation to the charges in Hamilton.
[4] At 12:55 PM the officers learned that Garrett Henderson would be released that day on the Hamilton charges. They proceeded to the sallyport at the Hamilton courthouse. At 1:25 PM, Garrett Henderson was brought into the sallyport. He was advised that he was under arrest for the murder of Aaron Reid. He was immediately placed in a police cruiser for transport to Brantford.
[5] At 1:28 PM, after leaving the sallyport at the Hamilton courthouse, Detective Sciberras advised Garrett Henderson of his right to counsel as required pursuant to s. 10(b) of the Charter. Without hesitation, Garrett Henderson responded by saying: "I just wanna to talk to my lawyer" and "He's right here". Detective Sciberras assumed this was a reference to Ian Begg and that Ian Begg was in all likelihood still in the Hamilton courthouse. Detective Sciberras then read the standard cautions to Garrett Henderson. They left the vicinity of the Hamilton courthouse at 1:32 PM and began the drive to Brantford. Before doing so, no attempt was made to arrange for Garrett Henderson to speak to Ian Begg or any other lawyer. Although Detective Sciberras was aware of the existence of secure interview rooms in the area of the sallyport at the Hamilton courthouse, he did not consider permitting Garrett Henderson to attempt to reach Ian Begg, or another lawyer, from one of those rooms. His objective was to transport Garrett Henderson to Brantford as quickly as possible and he did not intend to interview or pose questions to Garrett Henderson while en route. The interaction between Detectives Sciberras and Loveday and Garrett Henderson was audio recorded up until the time they arrived at the booking area of the Brantford Police Station
[6] At 1:53 PM, they arrived at the Brantford Police Station. Garrett Henderson was taken to the booking area. Staff Sgt. Robert Dinner was in charge of the police station and hence was also responsible for the booking of prisoners. At 2 PM, Staff Sgt. Dinner asked Garrett Henderson if he wanted to telephone a lawyer. Garrett Henderson responded by saying he wanted to make a telephone call to his mother or his brother in order to obtain the telephone number of a lawyer. Detective Sciberras testified that it is usual for a person under arrest to be allowed to make a phone call to a lawyer immediately following the booking procedure. That did not happen in this case.
[7] At 2:15 PM, Garrett Henderson was placed in cell number 15 at the Brantford Police Station. Cell 15 is normally used for multiple detainees. On this day Garrett Henderson was the only person in the cell. It was equipped with a toilet. Garrett Henderson was provided with a blanket either at the time he was placed in the cell or shortly thereafter.
[8] It was the practice of the Brantford Police, at the time, to videotape the booking procedure. Unfortunately, prior to the voir dire, the videotape of the booking of Garrett Henderson had been reused or destroyed pursuant to normal procedure. Staff Sgt. Dinner did retain a copy of the Prisoner Booking & Property Form which was entered as an exhibit. According to the Prisoner Booking & Property Form, Staff Sgt. Dinner advised Garrett Henderson of his right to counsel at 2 PM. Staff Sgt. Dinner also noted that Garrett Henderson appeared sober and exhibited a passive attitude. Staff Sgt. Dinner testified that he recalled Garrett Henderson being cooperative.
[9] Detective Sciberras informed Detective Sinclair, the officer in charge of the investigation at the time, about Garrett Henderson's request to place a telephone call to his mother or brother. Detective Sinclair was concerned about Garrett Henderson calling one of the other persons who were eventually charged with the murder of Aaron Reid, but who had not as yet been arrested. Detective Sciberras understood that Garrett Henderson wanted to obtain the number for a specific lawyer from his mother or brother. He did not consider placing the phone call himself in order to obtain the telephone number. This was the evidence presented to explain why Garrett Henderson was not afforded the opportunity to contact a lawyer immediately upon arriving at the Brantford Police Station.
[10] At 3:36 PM Detective Sciberras spoke to Garrett Henderson in cell 15. That conversation was audio recorded. Detective Sciberras told Garrett Henderson that Detective Sinclair would not allow him a direct telephone call to his mother or brother but they would allow him to telephone a lawyer. Garrett Henderson asked to speak to Ian Begg and provided Detective Sciberras with the telephone number.
[11] At 3:52 PM, Garrett Henderson was removed from cell 15 and taken to a private room for the purpose of making a telephone call to his lawyer. Detective Sciberras dialed the telephone number and spoke briefly to Ian Begg. After explaining that Garrett Henderson was under arrest for first-degree murder, he turned the telephone over to Garrett Henderson. Detective Sciberras exited the room in order to allow Garrett Henderson to speak to his lawyer in private. After approximately 15 minutes, Garrett Henderson exited the private telephone room and advised Detectives Sciberras and Loveday that he had called his mother because he did not have a lawyer. Garrett Henderson was not asked if he had obtained any legal advice while speaking to Ian Begg and/or whether he was satisfied with the legal advice provided. Detective Sciberras testified that he was aware at the conclusion of the telephone conversation between Ian Begg and Garrett Henderson that Garrett Henderson was in need of further legal assistance.
[12] At 4:55 PM Detective Sciberras served Garrett Henderson a meal consisting of a hamburger, french fries and a soft drink.
[13] At approximately 5:30 PM, Detectives Sciberras and Loveday were instructed by Detective Sinclair to attend at the home of Sheryl Henderson, Garrett Henderson’s mother. They arrived at her home at approximately 6 PM. Their conversation with her was audiotaped. Detective Loveday told Sheryl Henderson one of the reasons why they had come to see her was because they were trying to understand Garrett Henderson's mentality so he could be kept safe before he was taken to court. He asked if there was anything they could say to Garrett Henderson to help him relax. Sheryl Henderson wanted to make sure that her son was not taken to the Brantford jail. Detective Loveday also asked what was the most important thing to Garrett Henderson. They discussed his two sons. Detective Loveday asked Sheryl Henderson if there was a particular lawyer that she was thinking of contacting. They discussed Ian Begg not being able to handle the case because he was too busy and did not have enough staff in his office.
[14] During the course of the conversation with Sheryl Henderson, Detective Loveday inquired about a brain injury suffered by Garrett Henderson. Sheryl Henderson told the officers that her son had been struck in the head with a hammer, had been stabbed five or six times and had been in a coma for a week. She said this occurred approximately 1 1/2 years previously. Detective Loveday asked Sheryl Henderson if there was anything she wanted conveyed to her son. She told the officers to tell Garrett Henderson that she would find a lawyer to act for him. Sheryl Henderson agreed with Detective Loveday’s suggestion that she would wait or know more the next day about a lawyer. Towards the end of the conversation Detective Sciberras asked Sheryl Henderson about the content of her telephone conversation with her son earlier in the day.
[15] At 4 PM, Staff Sgt. Cheny Venn took over from Staff Sgt. Dinner as the officer in charge of the station. At 6:09 PM and 8:44 PM, Staff Sgt. Venn checked on Garrett Henderson. There was no evidence as to what, if any, interaction Staff Sgt. Venn had with Garrett Henderson on those occasions.
[16] Before Garrett Henderson was arrested, Scott Johnston, a Detective Sgt. with the Behavioural Sciences Section of the Ontario Provincial Police had been contacted for the purpose of attending at the Brantford Police Station to conduct the post arrest interview of Garrett Henderson. Detective Johnston was originally of the understanding that Garrett Henderson and others would be arrested on February 9, 2010 but when he arrived at the Brantford Police Station shortly before 3 PM on February 8, 2010, he learned that Garrett Henderson was in custody. He began the formal videotaped interview of the Garrett Henderson at 8:50 PM on February 8, 2010.
[17] Detective Johnston met with Garrett Henderson on two occasions before commencing the videotaped interview. Both interactions were audiotaped. The first meeting occurred shortly after 8 PM in the cellblock. Detective Sciberras accompanied Detective Johnston to the cellblock area. After Detective Johnston introduced himself as a police officer with the OPP, Garrett Henderson said: "I need a lawyer". Garrett Henderson then went on to say that he had spoken to a lawyer from Hamilton who could not act for him. He asked Detective Johnston if he could telephone his mother who was attempting to arrange a lawyer to act for him. Detective Johnston explained that he would facilitate a telephone call with Garrett Henderson's mother but it would not be in private. Detective Johnston asked Garrett Henderson if he was aware of Legal Aid. Garrett Henderson replied in the affirmative but said he wanted to talk to his mother. Detective Johnston offered to provide Garrett Henderson with a coffee but Garrett Henderson requested only a cigarette. Detective Johnston said he would see what he could do about providing a cigarette. The conversation ended with Detective Johnston saying he would make some arrangements for a telephone to be provided so Garrett Henderson could call his mother. Detective Sciberras testified that by the end of Detective Johnston's first conversation with Garrett Henderson, he was aware that Garrett Henderson had not properly exercised his right to consult with a lawyer and obtain legal advice.
[18] At approximately 8:15 PM, Detectives Sciberras and Loveday were instructed by Detective Johnston to return to Sheryl Henderson's home and bring her to the police station if she was willing. The officers were at Sheryl Henderson's home by 8:30 PM and arrived with her at the police station at approximately 8:45 PM.
[19] The next interaction between Detective Johnston and Garrett Henderson was when Detective Johnston went to the cellblock area to escort Garrett Henderson to the interview room. The formal videotaped interview began at 8:50 PM.
[20] As the interview began, Detective Johnston told Garrett Henderson that he had sent some officers to transport his mother to the police station. He said that when she arrived he would allow her to see Garrett Henderson. Detective Johnston also told Garrett Henderson that he had the right to speak to a lawyer to which Garrett Henderson responded: "I, yeah, I'd like to". Detective Johnston also told Garrett Henderson he was not required to provide a statement but anything did say could be admissible in court. Garrett Henderson indicated he understood he did not have to speak to Detective Johnston.
[21] Detective Johnston inquired of Garrett Henderson how he had been treated since he had been taken into custody by Brantford Police and Garrett Henderson indicated that everybody had been okay with him. Detective Johnston confirmed that Garrett Henderson had been provided something to eat. The only request made by Garrett Henderson was for a cigarette to which Detective Johnston gave an equivocal answer.
[22] During the course of discussing background information, Garrett Henderson stated that he had suffered brain damage three years previously when he had been struck in the head during the course of a beating. Garrett Henderson advised that he had been in a coma for a week and almost died. Garrett Henderson said that the only lingering effect of the head injury was its effect on his vocabulary.
[23] Sheryl Henderson entered the interview room where Garrett Henderson was located at approximately 9:10 PM. The conversation between Garrett Henderson and his mother was videotaped. The conversation centred on Sheryl Henderson finding a lawyer who would be available to come to court the following morning. Detective Johnston intervened towards the end of the conversation and made inquiries of Sheryl Henderson as to whether she would be able to assist in arranging for a lawyer who would be able to speak to Garrett Henderson that evening. Sheryl Henderson exited the interview room at approximately 9:21 PM.
[24] After Sheryl Henderson left the interview room, Detective Johnston asked Garrett Henderson if he wanted to speak to a lawyer to which Garrett Henderson responded: "I don't need one right now". Shortly thereafter Garrett Henderson inquired as to whether he could speak to more than one lawyer. He then changed his mind and said he wanted to call a lawyer.
[25] Detective Johnston provided a phone book to Garrett Henderson. He said he would call any lawyer of Garrett Henderson's choice. The first lawyer Garrett Henderson suggested calling was not listed in the phone book. He then called the office telephone numbers for three criminal lawyers. Each of the calls was directed to an answering machine. Garrett Henderson declined to leave a message for any of the three lawyers.
[26] After the unsuccessful attempt to reach the third lawyer Detective Johnston asked Garrett Henderson if he wanted to attempt to reach another lawyer to which Garrett Henderson responded: "I'll just wait for court I guess". Detective Johnston and then asked Garrett Henderson if he wanted to speak to Legal Aid duty counsel. Garrett Henderson said he did not wish to speak to duty counsel. The following exchange then took place:
Detective Johnston: Okay. So are you telling me that you don't wanna talk to a lawyer right now then?
Garrett Henderson: No thank you, it's okay.
Detective Johnston I'm, it's, it's your right Garrett that's why I'm asking.
Garrett Henderson: Okay.
Detective Johnston: Okay so, we've tried a number of different lawyers, I have a Hamilton phonebook. If you wanna keep looking through the phone book, you can keep looking through the phone book and make some calls.
Garrett Henderson: Mm-hmm.
Detective Johnston: Okay. If you want I'll call Legal Aid duty counsel for ya. Free lawyer, twenty-four (24) hours a day be able to speak to you. But it, it's your choice, you have tell me what it is you want.
Garrett Henderson: Mm-hmm. No, no thank you, I don't wanna talk to no lawyers, I'm cool.
Detective Johnston: You don't want talk to any lawyers right now?
Garrett Henderson: No thank you.
Detective Johnston: Okay. All right, well I'm gonna get rid of this then [referring to the telephone]. If you change your mind, you let me know, okay.
Garrett Henderson: Mm-hmm.
This exchange occurred approximately one hour and 10 minutes into the interview.
[27] A few minutes later, Garrett Henderson acknowledged being aware of his right to remain silent.
[28] Detective Johnston told Garrett Henderson that it was possible to "date stamp" DNA. He suggested that if Garrett Henderson's DNA was found on or around Aaron Reid's body it would be possible to determine when that DNA had been deposited. During his testimony on the voir dire, Detective Johnston acknowledged being aware at the time of the interview that it was not possible to determine when a particular DNA sample had been deposited.
[29] Garrett Henderson did not testify and called no evidence on the voir dire.
Voluntariness
[30] In R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 the Supreme Court set out at paragraph 71 the approach to take when determining the admissibility of a statement made by an accused person:
Again, I would also like to emphasize that the analysis under the confessions rule must be a contextual one. In the past, courts have excluded confessions made as a result of relatively minor inducements. At the same time, the law ignored intolerable police conduct if it did not give rise to an "inducement" as it was understood by the narrow Ibrahim formulation. Both results are incorrect. Instead, a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession's voluntariness, taking into account all the aspects of the rule discussed above.
[31] As is clear from the above passage in Oickle the onus is on the Crown to prove beyond a reasonable doubt that the statement was voluntary.
[32] Counsel for Garrett Henderson submits that there are unaccounted for periods of time before the videotaping of the statement began. He submits that the Crown is therefore unable to prove beyond a reasonable doubt that the statement was voluntary because it is incumbent upon the Crown to lead evidence to show that Garrett Henderson was treated appropriately.
[33] There is no evidence about what if anything transpired between 4:55 PM, when Detective Sciberras provided a meal to Garrett Henderson and 8:07 PM when Detective Johnston spoke to Garrett Henderson for the first time except that Staff Sgt. Venn checked on him on two occasions.
[34] In R. v. Koszulap, 1974 CanLII 1461 (ON CA), [1974] O.J. No. 726, in dealing with an unexplained period of almost 24 hours, Martin J. A. for the Ontario Court of Appeal stated at paragraph 9 and 10:
There was, in addition, no satisfactory evidence of the treatment received by the appellant during the period of almost twenty-four hours that he was detained in the cells at the detachment before he made the statement in question on this appeal.
There was, for example, no satisfactory evidence as to what food or drink the appellant had during the time he was held in police custody before making the statement and we are left only with conjecture.
And later at paragraph 17 he stated:
The onus was upon the prosecution to prove affirmatively all the surrounding circumstances leading up to the making of the confession. It was of particular importance that such onus be completely satisfied having regard to the lengthy period that the appellant was held in police custody prior to the making of the confession.
[35] In a concurring judgment in Koszulap, however, Arnup J.A. stated at paragraph 36:
I agree with the judgment of Martin, J.A. and with the reasons which led to his conclusion. His judgment does not say, and should not be interpreted to mean, that in every case where an accused person is detained in police custody for a considerable period of time before making a statement to a police officer, the Crown must account for every part of that period with respect to contacts with the accused.
[36] In R. v. Holmes, 2002 CanLII 45114 (ON CA), [2002] O.J. No. 4178, the Court of Appeal, relying on its judgment in Koszulap found that the Crown had not discharged its burden to prove a statement voluntary in light of an unexplained 16 hour period during which the accused was in custody before making a statement.
[37] In R. v. W.G., [2010] O.J. No. 4484, Spies J. of the Ontario Superior Court of Justice stated at paragraph 32:
Some of the language is Koszulap and Holmes is very broad and could be argued to support the position of Ms. Revutsky that any gap in the evidence for any period of time is fatal. However, it is important to remember, as stated by Arnup J.A. in Koszulap, that it is not every case where an accused person is detained in police custody for a considerable period of time before making a statement to a police officer, that the Crown must account for every part of that period with respect to contacts with the accused.
[38] In the present case, the unexplained period of time is slightly in excess of three hours which is much less than the periods of time that were of concern in Koszulap and Holmes. There is no suggestion on the Prisoner Booking & Property Form of any police officer having contact with Garrett Henderson during the period in question other than at 7:50 PM when it appears that Garrett Henderson was provided with some Poli Grip from his property. At the commencement of the interview, Detective Johnston confirmed with Garrett Henderson that he had been treated satisfactorily and had been given something to eat. From my observation of Garrett Henderson on the videotape, there is no suggestion that he had been mistreated in any way.
[39] In these circumstances, I am satisfied that it is not necessary for the Crown to lead positive evidence to show that Garrett Henderson was not subject to any threats, inducements or improper treatment during the period between 4:55 PM and 8:07 PM.
[40] From Oickle it can be concluded that in determining whether a statement is voluntary, it is necessary to consider:
whether there were any threats or promises made to the person who gave the statement;
whether the statement was given in an atmosphere of oppression;
whether the statement was the product of an operating mind on the part of the person who made the statement; and,
whether there was any trickery on the part of the police which would shock the community.
[41] As was held in Oickle, it is not every inducement that results in a statement being found to be involuntary. What is important is if there was any quid pro quo offer made by the police. There is no evidence of any threats or promises made to Garrett Henderson which could have prompted him to make a statement.
[42] Detective Johnston treated Garrett Henderson with respect throughout the course of the interview. He did not engage in aggressive questioning. He offered Garrett Henderson coffee and inquired about whether Garrett Henderson had been provided with something to eat. He did not provide Garrett Henderson with a cigarette although his responses to requests for a cigarette were always equivocal. There is no suggestion that Garrett Henderson was under the influence of alcohol or drugs or that he was sleep deprived. Although the interview lasted from approximately 8:50 PM until shortly after midnight, it does not appear from the videotape that Garrett Henderson was “worn down” by Detective Johnston’s questioning.
[43] In the early stages of the interview, Garrett Henderson told Detective Johnston that he had sustained a brain injury three years previously. He explained that he had been in a coma for a week and almost died. However, Garrett Henderson also told Detective Johnston that he had been attending college prior to being arrested on the Hamilton charges and that the only lasting impact from brain injury was with his vocabulary. Sheryl Henderson told Detectives Sciberras and Loveday about Garrett Henderson being in a coma for one week as a result of a beating but she did not suggest any ongoing cognitive problems.
[44] From observing Garrett Henderson throughout the course of the interview, I am unable to see that he is suffering from an impairment which would suggest his statement was not as result of an operating mind. He appears to understand his legal rights including his right to consult counsel and to remain silent. He is responsive throughout to questions posed by Detective Johnston. No medical evidence was presented to suggest that the brain injury suffered by Garrett Henderson would have any effect on his ability to appreciate the circumstances and to understand and respond appropriately to questions put to him.
[45] Detective Johnston did provide erroneous information to Garrett Henderson about the ability of the police to “date stamp” DNA.
[46] In Oickle, the court stated that the following passage from R. v. Rothman, [1991] 1 S. S.C.R. 640 correctly summarized the law:
[A] statement before being left to the trier of fact for consideration of its probative value should be the object of a voir dire in order to determine, not whether the statement is or is not reliable, but whether the authorities have done or said anything that could have induced the accused to make a statement which was or might be untrue. It is of the utmost importance to keep in mind that the inquiry is not concerned with reliability but with the authorities' conduct as regards reliability.
The Court then went on to say at paragraph 67:
In Hebert, supra, this Court overruled the result in Rothman based on the Charter's right to silence. However, I do not believe that this renders the "shocks the community" rule redundant. There may be situations in which police trickery, though neither violating the right to silence nor undermining voluntariness per se, is so appalling as to shock the community. I therefore believe that the test enunciated by Lamer J. in Rothman, and adopted by the Court in Collins, is still an important part of the confessions rule.
[47] In my opinion, there were no threats or inducements made to Garrett Henderson which would render his statement involuntary. The interview was not conducted in an atmosphere of oppression. The statement was that of an operating mind. The misstatement by detective Johnston about the ability of the police to “date stamp” DNA evidence is not something that would shock the community.
[48] Accordingly, I have come to the conclusion that the Crown has proven beyond a reasonable doubt that Garrett Henderson’s statement to Detective Johnston on February 8, 2010 was voluntary.
S. 10(b) of the Charter
[49] Section 10(b) of the Charter of Rights and Freedoms provides that, upon arrest, the person has the right to retain and instruct counsel without delay and to be informed of that right.
[50] As soon as Garrett Henderson was arrested, Detective Sciberras advised Garrett Henderson of his right to counsel. Immediately upon being so advised, Garrett Henderson expressed his desire to exercise his right to counsel. He indicated that he wished to speak to the lawyer who had represented him on the Hamilton charges. He was arrested in the Hamilton courthouse shortly after the charges against him had been stayed or withdrawn. In all likelihood his lawyer was still in the building. Rooms were available in which Garrett Henderson could have privately consulted with his lawyer. If Ian Begg, Garrett Henderson’s lawyer in relation to the Hamilton charges, was unable or unwilling to represent or advise him in connection with the present charge, it is a reasonable conclusion that arrangements could have been made for Garrett Henderson to speak to and obtain advice from another lawyer.
[51] Detective Sciberras explained that he did not afford Garrett Henderson the immediate opportunity to seek legal advice because he was anxious to return to the Brantford Police Station and it was not his intention to question Garrett Henderson while they were in transit.
[52] In R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, the Supreme Court of Canada stated at paragraph 41:
A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately".
And further at paragraph 42 the Court stated:
To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill-defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.
[53] I am not aware of an exception to the constitutionally protected right to consult a lawyer without delay upon arrest or detention in circumstances where the police do not intend to question the detainee or engage him in conversation about the offence with which he is charged. Accordingly, I find that Garrett Henderson’s right to consult with a lawyer immediately upon his arrest was breached.
[54] Indeed, an oral argument, Crown counsel conceded that there was a breach of Garrett Henderson’s rights pursuant to section 10(b) of the Charter up until the time he spoke to Ian Begg by telephone at 3:52 PM. The Crown submits however, as I perceive the argument, that the breach was cured at that point.
[55] Counsel for Garrett Henderson submits that there was a strategy in place to prevent Garrett Henderson from receiving the benefit of legal advice before the interview by Detective Johnston began. He points to the testimony of Detective Loveday who said there was an investigative strategy to place Garrett Henderson in a cell at the Brantford Police Station before allowing him to make a telephone call.
[56] I do not believe there was a deliberate strategy in place to deny Garrett Henderson his constitutional right to speak to a lawyer. I believe the concern was that if Garrett Henderson was allowed the use of a telephone he would alert one of his coaccuseds who had not yet been arrested. That was a legitimate police concern. However, in my view, it was not necessary to deny Garrett Henderson access to a telephone to call his lawyer until 3:52 PM in order to address this concern. As was done when Ian Begg was called, Detective Sciberras dialled the number. When the officer was certain that the lawyer was on the other end of the line, he turned the telephone receiver over to Garrett Henderson. In this way, the police were able to assure that there was no communication with a coaccused who had yet to be arrested.
[57] The Crown submits Garrett Henderson exercised his constitutional right to obtain legal advice when he spoke to Ian Begg at 3:52 PM. Without question, Garrett Henderson spoke to Ian Begg. It is not known how long a conversation they had because Garrett Henderson also telephoned his mother. When Garrett Henderson exited the telephone room he advised the officers that he had called his mother because he did not have a lawyer. No police officer inquired of Garrett Henderson if he had obtained any legal advice from Ian Begg and if so, whether he was satisfied with the advice received.
[58] Detective Sciberras testified that after the telephone call to Ian Begg, he was aware Garrett Henderson needed further legal assistance. That is consistent with the efforts made by Detective Johnston at the commencement of the videotaped interview to assist Garrett Henderson in contacting a lawyer. I therefore do not accept this submission that Garrett Henderson must have obtained satisfactory legal advice when he spoke to Ian Begg.
[59] The Crown also argues that Garrett Henderson was not diligent in attempting to contact counsel because he declined to leave a message for any of the lawyers whose answering machines he reached. I accept that Garrett Henderson could have, if he had chosen to, left a message for one or all of the lawyers on the answering machines. He could also have asked for the opportunity to telephone a lawyer at home if a home telephone number could be located. He did not do so nor was this option suggested to him.
[60] The failure on the part of Garrett Henderson to leave a message on one of the lawyer’s answering machines or to attempt to reach a lawyer at home, in my view, must be viewed in the context of the overall circumstances. He was attempting to reach a lawyer sometime after 8 PM, when one would not be surprised that lawyers were not in their offices accepting telephone calls. He was only in the position of attempting to reach lawyers at this time of the evening because he had been denied the opportunity to speak to a lawyer at the Hamilton courthouse immediately following his arrest. I have no doubt that if this opportunity had been provided Garrett Henderson would have obtained the necessary legal advice to allow him to make an informed decision about whether to provide a statement.
[61] Earlier in these reasons, I set out the excerpt from the transcript of the video statement where Garrett Henderson tells Detective Johnston that he has decided to terminate his efforts to contact a lawyer and to wait until court the following morning. Detective Johnston clarifies that Garrett Henderson does not wish to speak to any lawyer including duty counsel. Garrett Henderson confirms his decision.
[62] In R. v. Prosper, [1994] 3 S.C.R. 326, Lamer C.J. stated at paragraph 43 and 44:
In circumstances where a detainee has asserted his or her right to counsel and has been reasonably diligent in exercising it, yet has been unable to reach a lawyer because duty counsel is unavailable at the time of detention, courts must ensure that the Charter-protected right to counsel is not too easily waived. Indeed, I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. This additional informational requirement on police ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up.
Given the importance of the right to counsel, I would also say with respect to waiver that once a detainee asserts the right there must be a clear indication that he or she has changed his or her mind, and the burden of establishing an unequivocal waiver will be on the Crown. Further, the waiver must be free and voluntary and it must not be the product of either direct or indirect compulsion. This Court has indicated on numerous occasions that the standard required for an effective waiver of the right to counsel is very high. As I said in Bartle, at pp. 192-94 and 206, a person who waives a right must know what he or she is giving up if the waiver is to be valid. That being said, it stands to reason that the right to counsel guaranteed under s. 10(b) must not be turned into an obligation on detainees to seek the advice of a lawyer. [Citations omitted]
And further at paragraph 50:
In addition, once a detainee asserts his or her right to counsel and is duly diligent in exercising it, thereby triggering the obligation on the police to hold off, the standard required to constitute effective waiver of this right will be high. Upon the detainee doing something which suggests he or she has changed his or her mind and no longer wishes to speak to a lawyer, police will be required to advise the detainee of his or her right to a reasonable opportunity to contact counsel and of their obligation during this time not to elicit incriminating evidence from the detainee.
[63] As I have indicated, I am satisfied that Garrett Henderson was reasonably diligent in exercising his right to obtain legal advice. Without question, he asserted that right consistently from the time of his arrest until he told Detective Johnston that he was no longer interested in continuing his efforts to contact a lawyer and would wait for court. Although Detective Johnston gave a Garrett Henderson the opportunity to call duty counsel and confirmed that he did not wish to do so, Detective Johnston did not obtain a clear and unequivocal waiver of Garrett Henderson’s right to speak to a lawyer and obtain legal advice nor did Detective Johnston make it clear that questioning would be postponed. Considering the significant burden on the Crown to establish that Garrett Henderson clearly and unequivocally waived his constitutional right to consult with counsel, I am not satisfied that the burden has been met.
[64] Taking all factors into consideration, I conclude that Garrett Henderson’s right pursuant to section 10(b) of the Charter to consult with counsel immediately upon his arrest was violated. Accordingly, I also find that the videotape statement made to Detective Johnston on February 9, 2010 was obtained as result of that Charter breach.
S.24(2) of the Charter
[65] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court of Canada set out the approach to be taken on an application to exclude evidence as a result of a Charter breach at paragraph 71:
A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.
[66] The right of a person who has been arrested to have immediate access to legal counsel is an important constitutional right. Accordingly any breach of that right is serious. In R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, the Supreme Court stated at paragraph 24:
The purpose of s. 10(b) is to provide a detainee with an opportunity to obtain legal advice relevant to his legal situation. In the context of a custodial interrogation, chief among the rights that must be understood by the detainee is the right under s. 7 of the Charter to choose whether to cooperate with the police or not.
[67] It is troubling that Detective Sciberras appeared to have that view that the right pursuant to section 10(b) of the Charter was satisfied by merely reading the appropriate wording to Garrett Henderson. He failed to appreciate that Garrett Henderson had the right to consult counsel without delay. It is equally troubling that Detective Sinclair did not appreciate the difference between allowing Garrett Henderson to make a telephone call to a lawyer, which is a constitutional right, and making sure that Garrett Henderson did not “tipoff” other persons who were to be arrested the following day. The police were fully aware that Garrett Henderson had not obtained legal advice when the interview conducted by Detective Johnston commenced. Finally, when Garrett Henderson eventually indicated that he was no longer going to continue to attempt to contact counsel, no clear waiver of his Charter right was obtained. These are serious breaches.
[68] The Supreme Court in Grant went on to state at paragraph 95:
The failure to advise of the right to counsel undermines the detainee's right to make a meaningful and informed choice whether to speak, the related right to silence, and, most fundamentally, the protection against testimonial self-incrimination. These rights protect the individual's interest in liberty and autonomy. Violation of these fundamental rights tends to militate in favour of excluding the statement.
[69] A statement obtained in breach of section 10(b) of the Charter engages an accused’s right to silence which arises from the principal against self-incrimination. I therefore conclude that the Charter breach in this case had a significant impact on the rights of Garrett Henderson.
[70] The third and final inquiry according to Grant is society’s interest in the adjudication of the case on its merits. Although I have not mentioned the content of the statement made by Garrett Henderson to Detective Johnston previously, it is significant that the statement is largely exculpatory. Garrett Henderson admits that he attended the party on the evening prior to Aaron Reid’s death but denies that he had an altercation with Aaron Reid or that he was present when Aaron Reid was beaten by others. It is obvious throughout the course of the videotaped interview that Detective Johnston does not believe Garrett Henderson is telling the truth. It is my understanding that the Crown only seeks a ruling with respect to the admissibility of this statement so that it can cross-examine Garrett Henderson on it, in the event Garrett Henderson testifies at trial. Accordingly, it does not appear to me that the truth seeking function of the trial will be significantly impaired if the jury does not learn about the content of this statement.
[71] In balancing the three lines of inquiry directed by Grant, the Supreme Court emphasized that it is important to take: “a long-term, forward-looking and societal perspective". This point was emphasized in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at paragraph 36 where the Court stated:
In all cases, it is the long-term repute of the administration of justice that must be assessed.
[72] Lastly, I return to Grant where at paragraphs 91 and 98 the majority of the Supreme Court of Canada stated:
There is no absolute rule of exclusion of Charter-infringing statements under s. 24(2), as there is for involuntary confessions at common law. However, as a matter of practice, courts have tended to exclude statements obtained in breach of the Charter, on the ground that admission on balance would bring the administration of justice into disrepute.
In summary, the heightened concern with proper police conduct in obtaining statements from suspects and the centrality of the protected interests affected will in most cases favour exclusion of statements taken in breach of the Charter, while the third factor, obtaining a decision on the merits, may be attenuated by lack of reliability. This, together with the common law's historic tendency to treat statements of the accused differently from other evidence, explains why such statements tend to be excluded under s. 24(2).
[73] In conclusion, I find that to admit the videotape statement made by Garrett Henderson to Detective Johnston on February 8, 2010 would bring the administration of justice into disrepute.
Conclusion
[74] For these reasons, I find the statement made by Garrett Henderson to Detective Johnston on February 8, 2010 to be voluntary but that the statement was obtained as result of a breach of section 10(b) of the Charter. To nevertheless admit the statement into evidence would bring the administration of justice into disrepute. The statement is therefore excluded and will not be permitted into evidence at the trial.
“original signed”
G. E. Taylor J.
Released: December 19, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Jason Mark Boutilier, Christopher M. Sandford and Garrett J. Henderson
REASONS FOR JUDGMENT
G. E. Taylor J.
Released: December 19, 2012