WARNING
The court hearing this matter directs that the following notice should be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4 of the Criminal Code:
(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
BARRIE COURT FILE NO.: CR-11-193
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
JOMO BLAKE
Applicant
M. Levasseur, for the Crown
A. Flisfeder, for the Applicant
HEARD: October 15, 16, 2012 and January 14, 2013
PUBLICATION OF THIS RULING IS BANNED PURSUANT TO S.486.4
OF THE CRIMINAL CODE OF CANADA
REASONS FOR DECISION RE: VOLUNTARINESS/CHARTER SECTIONS 7, 10(a), 10(b) and 24 APPLICATIONS
DiTOMASO J.
INTRODUCTION
1The applicant Jomo Blake is charged with the offences of sexual assault and sexual interference involving T.H.
THE APPLICATIONS
2The Crown applies for an order declaring statements provided by Mr. Blake to persons in authority are voluntary and admissible in evidence against him at his upcoming trial.
3The defence submits that the statements are involuntary and therefore, inadmissible. Further, the statements made by Mr. Blake are in violation of his rights in accordance with sections 7, 10(a), 10(b) and 24 of the Canadian Charter of Rights and Freedoms, in addition to his rights under the common law.
4Crown and defence counsel agreed that the evidence would apply to both applications which were heard together. A blended “voir dire” was conducted. At the heart of the applications was the voluntariness of two utterances made by Mr. Blake upon his arrest and transport to the police station as well as the voluntariness of Mr. Blake’s videotaped statement at the police station.
5On the blended voir dire, the following police officers for the Barrie Police Service testified on behalf of the Crown: Sergeant Glen Furlong, Sergeant Gary Turner, Detective Constable Jason Stamp and Detective Kevin McLean. Krista Halbert, Angela Blake and PC Daniel Steele testified on behalf of Mr. Blake.
6Mr. Blake did not testify at the blended voir dire. He was under no obligation to do so.
OVERVIEW
7On the morning of May 19, 2010, the complainant T.H. attended Barrie Police Service in the company of her mother L.L. Police obtained a videotaped statement from the complainant. In that interview, she alleged that a family friend, Mr. Blake had attempted to kiss her and fondled her breasts, sometime during 2008 when the complainant was between 13 and 14 years of age. She reported this to her mother, who did not involve police at the time, but instead spoke directly to Mr. Blake.
8The families had a falling out and did not see much of each other until November, 2009, when the families resumed their friendship. Shortly thereafter, T.H. alleges that over time Mr. Blake began touching her in a sexual manner; grabbing her buttocks, legs and breasts, ultimately culminating in sexual intercourse. T.H. alleges that she had sexual intercourse with Mr. Blake a number of times, and that he would give her money, rides around town and let her use his laptop computer in exchange for her silence. She alleges that he also blackmailed her to keep quiet by threatening to tell her mother that she was downtown hanging out with people she was not supposed to be with.
9T.H. alleges that the final act of sexual intercourse between herself and Mr. Blake occurred either the weekend before May 19, 2010 or the weekend before that. She was 15 years of age at the time.
Arrest of Mr. Blake
10As a result of the information alleged by T.H., police formed reasonable and probable grounds to arrest him for the offences before the court. Shortly after noon on May 19, 2010, Detective Constable Jason Stamp and Detective Kevin McLean attended at Mr. Blake’s place of employment in a marked police cruiser, in an effort to locate and arrest him.
11The officers located Mr. Blake at his place of employment in the City of Barrie. At approximately 1 p.m., Detective McLean confirmed Mr. Blake’s identity, and then placed him under arrest for sexual assault and sexual interference.
12Mr. Blake immediately informed the officers that “he knew what this was about” (utterance 1). The Crown seeks ruling with respect with the voluntariness of utterance 1.
Right to Counsel
13Detective McLean then advised Mr. Blake as to his right to counsel. Mr. Blake replied that he understood and that he wanted to call his wife to call a lawyer. Mr. Blake was asked if he or his wife had a lawyer. He responded no. Mr. Blake was again advised of the availability of a free legal aid lawyer and Mr. Blake advised that he wished to contact duty counsel at the police station.
14Mr. Blake was secured in handcuffs, then escorted out to the police vehicle and placed in the rear of the cruiser. Early after 1 p.m., while en route to the police station, Mr. Blake asked if he could say something. He then said: “she came to my house and offered to pay $300 per month for rent. I gave her $20 for babysitting”. Mr. Blake also said: “I heard I’m not the first one, I heard her father did it to her” (utterance 2). Up to this point neither officer had mentioned anything about who the alleged complainant was or the specifics of the case. The Crown also seeks a voluntariness ruling respecting utterance 2.
Consultation with Duty Counsel
15At approximately 1:25 p.m. Mr. Blake was booked shortly after arriving at the police station on Sperling Drive, in the City of Barrie. During this process, Mr. Blake confirmed his request to contact duty counsel.
16Detective Constable Stamp contacted duty counsel on behalf of Mr. Blake at approximately 1:51 p.m. and Mr. Blake was subsequently put in touch with duty counsel when she called back at approximately 2:35 p.m. Mr. Blake consulted with duty counsel in private. Thereafter, he was lodged in his cell.
Videotaped Statement of Mr. Blake
17Shortly before 4:30 p.m., Mr. Blake was removed from his cell and escorted to an interview room within the police station. That interview room is equipped with video and audio recording equipment which was activated by Detective McLean. Detective McLean then proceeded to interview Mr. Blake until approximately 6:15 p.m. The entirety of that interview was captured on videotape. The videotape is marked exhibit 2 and a transcript of the interview is marked exhibit 3 on this blended voir dire. The Crown also seeks a ruling with respect to the voluntariness of Mr. Blake’s videotaped statement.
18Although there is reference during Mr. Blake’s interview to allegations involving abusing his children, Mr. Blake has been charged only with allegations currently before the court.
19Mr. Blake, on two occasions during the interview, confirmed that he believed he should have a lawyer. On a further two occasions during the interview, he asked to contact his wife to arrange to speak to a lawyer.
POSITION OF THE PARTIES
Position of the Crown
20The Crown submits that the first two utterances were spontaneously made and not elicited by the police. As such, these utterances are admissible and do not attract Charter scrutiny.
21Further, Mr. Blake’s statement on his interview was entirely voluntary and the evidence of his interview is also admissible.
22It is submitted that there was compliance with Mr. Blake’s informational rights protected by s.10(a) of the Charter. Further, the Crown submits that the videotaped statement of Mr. Blake is compliant with s.10(b) of the Charter.
Position of the Applicant Jomo Blake
23Mr. Blake submits that he was never fully and fairly advised of his rights. He was never fully advised of the reasons for his arrest pursuant to s.10(a) of the Charter.
24Regarding s.10(b), despite repeated requests to contact his own lawyer, he was not allowed to contact counsel. After continued questioning, and after having repeatedly requested to speak to counsel, he submits that his rights were violated and any evidence so obtained should be found to be inadmissible.
25At his interview, he was not fully informed of the reasons for his arrest. Neither was he allowed to contact counsel despite his repeated requests. During the time of his interview, Mr. Blake was advised of complaints that he abused his child or children. He was not advised of his right to counsel in relation this new matter or that it could lead to separate charges. The interviewing officer never explained the charges that Mr. Blake was facing and that consent was not defence to the sexual charges facing Mr. Blake. Rather, Mr. Blake submits that the interviewing officer led Mr. Blake to believe if there was consent, no offence had been committed. In addition to the violation of his Charter rights, any statement given by Mr. Blake on his interview was involuntary and therefore inadmissible.
ANALYSIS - VOLUNTARINESS
Utterance 1 – “He knew what this was about”
Utterance 2 – “She came to my house and offered to pay me $300 per month for rent. I gave her $20 for babysitting…” “…I heard I’m not the first one, I heard her father did it to her”
26Detective Constable Stamp and Detective McLean were partnered on May 19, 2010. They attended Mr. Blake’s place of business at 12:45 p.m. and met with him at the site supervisor’s office where Mr. Blake worked.
27After confirming Mr. Blake’s identity, Detective McLean placed Mr. Blake into custody where upon Mr. Blake stated “I know what this is about”.
28This statement was noted by Detective Constable Stamp in his notes. The statement was not elicited by either Detective Constable Stamp or Detective McLean. I accept Detective McLean’s evidence confirmed by Detective Constable Stamp that at this point in time, Detective McLean had only identified who he and Detective Constable Stamp were and that Detective McLean was placing Mr. Blake under arrest for sexual assault and sexual interference.
29Detective McLean had not asked Mr. Blake to say anything at this point. Further, Detective McLean had not provided Mr. Blake with any other information regarding the nature of the charges.
30Right after Mr. Blake said that he knew what “this was about”, Detective McLean read Mr. Blake his rights to caution. Mr. Blake said he understood and he wanted to call his wife to call a lawyer. Then Detective McLean read Mr. Blake his caution. All of this took place shortly after 1:30 p.m.
31In respect of the caution Mr. Blake indicated that he understood. Both times Mr. Blake actually said “I understand” he asked no questions in respect of either the right to counsel or caution. Detective McLean had no problems understanding Mr. Blake. Mr. Blake was then handcuffed by Detective McLean who escorted Mr. Blake out of the building to the police vehicle. Mr. Blake was placed into the rear of the police vehicle. With Detective Constable Stamp driving, they made their way to the police station at Sperling Drive.
32While en route, there was no two-way conversation.
33As they were driving, the evidence of Detective McLean was that Mr. Blake said: “Can I say something? She came to my house and offered to pay me $300 per month for rent. I gave her $20 for babysitting”. Mr. Blake also said: “I heard I’m not the first one, I heard her father did it to her”.
34This utterance was written down by Detective McLean as they were driving to the station. Detective McLean did not elicit this statement from the Mr. Blake. Neither Detective Constable Stamp nor Detective Blake said anything to Mr. Blake. There was no conversation between any of them leading up to Mr. Blake’s utterance. There was no follow up regarding the utterance made by Mr. Blake. There was no other conversation during transport to the station. They arrived at the station at 1:25 p.m.
35I accept the evidence of Detective Constable Stamp and Detective McLean as being credible, forthright and reliable regarding utterances 1 and 2. I find that these two utterances were totally unsolicited by the police officers who attended upon the arrest of Mr. Blake. The utterances were spontaneously made by Mr. Blake in circumstances where he was taken into custody, arrested and told nothing more than the charges facing him, namely, sexual assault and sexual interference. These utterances do not attract Charter scrutiny.
36I find utterances 1 and 2 are entirely voluntary statements and as such constitute evidence admissible at Mr. Blake’s trial.
The Police Interview
37The Crown submits that Mr. Blake’s statement given on his police interview was voluntary and therefore admissible. To the contrary, Mr. Blake submits that his statement was involuntary, inadmissible and ought to be excluded from evidence sought to be adduced at his upcoming trial. He was never made aware by the interviewing officer that sexual interference did not have consent as defence. Instead, he submits that the interviewing officer led Mr. Blake to believe that if there was consent, no offence had been committed. Mr. Blake submits that he was in effect “threatened” that he could face other charges in relation to the abuse of his child or children. He should have been advised of his rights again to speak to counsel. This was not done nor was he allowed to speak to his wife to obtain counsel which was a repeated request during his interview.
38The following factors are applicable to the assessment of whether a particular statement to a person in authority is voluntary:
(a) the use of inducements (threats or promises);
(b) circumstances of oppression;
(c) whether the accused possessed an operating mind at the time the statement was made; and
(d) the use of police trickery.[1]
39The onus rests on the Crown to prove that the statement given by Mr. Blake on his interview was voluntary beyond a reasonable doubt.
The Use of Inducements
40Police may offer some kind of inducement to obtain a confession. This only becomes improper when the inducement, either alone or in combination with other factors, is strong enough to raise a reasonable doubt about whether the subject’s will has been overborne.[2]
41In R. v. Spencer (2007), 2007 SCC 11, 217 C.C.C. (3d) 353 (S.C.C.) in considering the overarching concept of voluntariness the Court stated that: “while a quid prod quo may establish the existence of a threat or promise, it is the strength of the alleged inducement that must be considered in the overall contextual inquiry into voluntariness.”
42Not only was Detective McLean the arresting officer, he was also the officer who conducted the interview of Mr. Blake.
43During Mr. Blake’s interview, Detective McLean raised the issue of a separate investigation that police and the Children’s Aid Society were going to be jointly looking into regarding Mr. Blake’s children. On behalf of Mr. Blake it is submitted that he was effectively “threatened” with other charges in relation to the abuse of his child or children for which he faced new jeopardy and regarding which he should have been advised of his rights once more to speak to counsel. I do not agree.
44I do not accept that there is an evidentiary foundation upon which to find that this reference to a separate investigation involving the Children’s Aid Society and Mr. Blake’s children was in any way a threat in relation to the allegations currently before the court. Detective McLean did not in any way threaten Mr. Blake with separate charges if he did not confess to the allegations before the court. Mr. Blake was never told that he would be facing any further charges. Quite to the contrary, at that point in time, the investigation had not even yet commenced.
45I do not accept that Mr. Blake faced an inquiry or elevated jeopardy in respect of the Children’s Aid Society investigation which could cause him to feel threatened in respect of very different charges before this court. There was no “quid prod quo” on the evidentiary record before this court that would in any way suggest that if Mr. Blake did not confess to the offences for which he had been charged involving T.H., then, he would face an entirely new and separate set of charges involving the abuse of his children.
46This having been said, I will return later to the evidence regarding the police and the Children’s Aid Society investigation.
47Having reviewed the entirety of the interview conducted by Detective McLean, I conclude that were no inducements held out by, or impacting upon Mr. Blake throughout the period during which he was spoken to by Detective McLean.
Circumstances of Oppression
48The circumstances under which Mr. Blake was detained at the police station and the circumstances under which he was interviewed by Detective McLean do not support any suggestion that he was kept under inhumane conditions which led to a confession on his part purely to escape those conditions. Quite to the contrary, the factors which could have created an atmosphere of oppression do not exist in this case. Such factors that might have constituted oppressive circumstances are cited by Mr. Justice Iacobucci at para. 60 of Oickle. Those factors include depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel, and excessively aggressive, intimidating questioning for a prolonged period of time.
49I accept the evidence of Detective McLean that he treated Mr. Blake respectfully. He was not aggressive with him. Detective McLean used a conversational tone of voice and at all times, dealt with Mr. Blake in a professional manner.
50In fact, Mr. Blake repeatedly told Detective Blake how well he had been treated. Numerous references can be found in the transcript of Mr. Blake’s statement at Exhibit 3.
51In order for the court to find that alleged oppressive circumstances rendered Mr. Blake’s statement involuntary, there must be a nexus or causal link between the circumstances alleged to be oppressive and the fact that Mr. Blake made the statement in issue. There is no such nexus or causal link in this case. The interview was not a lengthy one. He was interviewed from approximately 4:30 p.m. to 6:15 p.m. There was a break in the interview.
52Further, even though Detective McLean had repeatedly suggested to Mr. Blake that Mr. Blake had repeatedly engaged in full intercourse with T.H., Mr. Blake did not fully confess. At the end of the interview Mr. Blake admitted to brief sexual contact with T.H. on one occasion where he briefly inserted his penis into her vagina, at T.H.’s request, then quickly removed it when he realized what he was doing.
53Also most noteworthy was what transpired when Detective McLean attempted to end the interview. At the moment that Mr. Blake was beginning to confess, Detective McLean suggest to Mr. Blake that “I’m gonna talk to you another time”. Mr. Blake did not allow him to do so. Rather, Mr. Blake chose to continue the interview to police. In response Detective McLean’s suggestion that the interview be continued another time, Mr. Blake said “no…no, no, see, don’t move, alright”. Detective McLean then offered to stay and Mr. Blake proceeded to explain the circumstances under which he had sexual intercourse with T.H.
54I find that it cannot be said that the concern about production of unreliable or false confessions underlying the confessions rule in Canada has been offended in our case. Rather, the conditions that existed surrounding the arrest, detention and interview of Mr. Blake did not cumulative “overbear” his will and thus cause him to “confess” in an effort to escape oppressive conditions rendering the statement involuntary.
Operating Mind
55When considering whether Mr. Blake possessed an operating mind, the applicable test is set out by Mr. Justice Sopinka at para. 45 of R. v. Whittle, 1994 CanLII 55 (SCC), [1994] S.C.J. No. 69 (S.C.C.):
The operating mind test, therefore, requires that the accused possess a limited degree of cognitive ability to understand what he or she saying and to comprehend that the evidence may be used in proceedings against the accused. Indeed it would be hard to imagine what an operating mind is if it does not possess this limited amount of cognitive ability. In determining the requisite capacity to make an active choice, the relevant test is: did the accused possess an operating mind? It goes no further and no inquiry is necessary as to whether the accused is capable of making a good or wise choice or one that is in his or her interest.
56A review the entire circumstances surrounding Mr. Blake’s arrest, detention and interview at the station leads to the conclusion that Mr. Blake had an operating mind throughout the entirety of these proceedings particularly, regarding his interview. I find he was responsive to the questions being asked of him. His responses were not inappropriate or out of context. He appreciated his circumstances, namely, that he was under arrest, that he was being question in respect of charges of sexual assault and sexual interference. He was aware to whom he was speaking (Detective McLean of the Barrie Police Service), and the consequences of speaking to police. I am not satisfied on the evidence before me that Mr. Blake lacked the requisite operating mind at the time the statement was made at his interview.
Police Trickery
57The final consideration in determine whether a confession is voluntary is police trickery, namely, whether there was resort by the police to trickery or deceit in order to obtain a statement. Unlike the other considerations, this inquiry is more concerned with maintaining the integrity of the criminal justice system rather than reliability. The ultimate question is whether or not the trickery or deceit used by police would “shock the community”. Examples cited in Oickle include having a police officer pose as a Chaplin or a legal aid lawyer, or injecting truth serum into a diabetic under the pretence that it was insulin.
58In the instant case, the Crown acknowledges that Detective McLean mislead Mr. Blake when he indicated as follows: “I’m saying if you…if you had consent then you had consent and I’m going home”.
59The Crown takes the position that this level of deceit would not “shock the community” as contemplated by Oickle for the following reasons:
the officer was using a common interrogative technique in an attempt to show empathy to the accused, and connect with the accused in a non judgmental way; earning his trust and enabling him to tell the truth;
the officer did not explicitly say that, if the contact with the complainant was consensual, the Applicant would not be charged. He also did not say, if there was consent, then you’re going home. Instead, he said I’m going home. At most, the deceit was implied;
such implied deceit is only evidenced on one occasion during the interview;
other references on the issue of consent involve suggestions by the officer that if the sex were consensual, it would explain things, rather than suggesting that he would not be charged as a result (e.g., page 65, l.15, p. 121, l.17; Transcript of the Accused’s Statement; Exhibit 3)
when asked by the accused what the charge is when sex is consensual, the officer’s response was as follows: “when pe-…two people have consensual sex, two adults have consensual sex, there is no charge”. (p. 124, l.12; Transcript of the Accused’s Statement; Exhibit 3). The officer was very clear to use the word “adults” rather than leaving it at two “people”, and in this way, was telling the truth to the accused. At most, the officer omitted to tell the accused that consent is vitiated if one of the parties is under 16 years of age.
60The Crown also takes the position that there is no informational obligation on the part of the police to inform to Mr. Blake that consent is not a defence and does not amount to trickery.[3]
61Mr. Blake takes a much different view. He was led to believe by Detective McLean that if there was consent, no offence had been committed. If Detective McLean were providing legal advice, Mr. Blake should have been advised of his rights and allowed to speak to counsel.
62I find that while Detective McLean misled Mr. Blake regarding the issue of consent. I accept that Detective McLean was attempting to earn Mr. Blake’s trust and to connect with him in non-judgmental way. While Detective McLean was attempting to enable Mr. Blake to tell the truth he did not say that if there was consent, then Mr. Blake would be released and the charges would be dropped. Detective McLean did say that if sex with T.H. was consensual, it would explain things, rather than suggesting he would not be charged as a result. He did catch himself and did tell Mr. Blake that when two adults have consensual sex there is no charge. This part was true. However, Detective McLean omitted to tell Mr. Blake that consent is vitiated if one of the parties is under 16 years of age as was T.H. in this case.
63The critical question is whether Detective McLean misleading Mr. Blake regarding consent rises to the level of trickery or deceit as would “shock the community”.[4] In considering this question, the integrity of the criminal justice system moves the forefront.
64It is clear that the deception on the part of Detective McLean comes within the category of deceit or police trickery. A statement obtained by deceit or trickery will be inadmissible when the conduct of a police officer is so appalling that it shocks the community.[5]
65I find that the failure Detective McLean to tell Mr. Blake that T.H.’s consent would not provide him with a defence was not an omission that would be sole appalling as to shock the community. In all of the circumstances, the failure of Detective McLean to inform Mr. Blake about T.H.’s consent was not so shocking as to require the exclusion from evidence of his statement.
66In my view, the fact that Detective McLean did not tell Mr. Blake that T.H.’s consent did not provide him with a defence does not raise a reasonable doubt that Mr. Blake’s statement was involuntary.
67To the contrary, I find that Crown has met its burden of proving that Mr. Blake’s statement was made voluntarily beyond a reasonable doubt. Having made this finding, it follows that Mr. Blake’s right to silence as not infringed in the interview process.
68I conclude that Mr. Blake’s interview statement to Detective McLean on May 19, 2010 was made voluntarily. As such, his statement is admissible in evidence against him at his upcoming trial with the following exception.
69As for the evidence of the police and Children’s Aid Society investigation regarding Mr. Blake’s children, this evidence on Mr. Blake’s statement is totally irrelevant to the charges before the court. Accordingly, any reference whatsoever to this area of questioning shall be excised and edited from the evidence found at Exhibit 2 (the DVD of the police interview) and Exhibit 3 the transcript of Mr. Blake’s evidence on the police interview. The excised or edited evidence is not admissible as evidence at his trial.
CHARTER S.10(a) – RIGHT TO BE INFORMED OF REASON FOR ARREST
70I accept the evidence of Detective McLean and Detective Constable Stamp that Mr. Blake immediately upon arrest was informed of the charges against him, namely, charges of sexual assault and sexual interference.
71In assessing whether there has been a breach of s.10(a) of the Charter, the question is whether the police has informed Mr. Blake of the reason for his arrest, viewed reasonably in all the circumstances of the case, in a manner that is sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s.10(b). I find Mr. Blake needed only to know generally the jeopardy he faced and whether what he was told was sufficient to make a decision as to whether or not to consult with counsel.[6]
72In this case, the police officers informed Mr. Blake immediately upon arrest of the reason for his arrest, namely, that he was being charged with sexual assault and sexual interference. The police again confirmed at the commencement of the videotaped statement of Mr. Blake that he was under arrest for the offences of sexual assault and sexual interference.
73They did in this case inform Mr. Blake of the reasons for his arrest thereby fulfilling their informational obligation in this regard. Section 10(a) of the Charter does not extend to informing Mr. Blake of the law in regards to the charges he faces. This is not the role of the police.
74In R. v. Smith, 1991 CanLII 91 (SCC), [1991] S.C.J. No. 24, the Supreme Court discussed a relationship between s.10(a) and (b) of the Charter and, the information police are obliged to provide, and not obliged to provide to an accused. Specifically, the court states at paras. 27-28:
It 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. Nor is the failure of the police to precisely identify the charge faced in the words of the Criminal Code necessarily fatal. In the initial stages of an investigation the police themselves may not know the precise offence with which the accused will be charged. Moreover, the words of the Code may be less helpful to a lay person than more common parlance in communicating the extent of jeopardy. Finally, the degree of awareness which the accused may be reasonably assumed to possess in all the circumstances may play a role in determining whether what the police said was sufficient to bring home to him the extent of his jeopardy and the consequences of declining his right to counsel.
The question reduces to this: in this case 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 or she 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. The emphasis should be on the reality of the total situation as it impacts on the understanding of the accused, rather than on technical detail of what the accused may or may not have been told. [my emphasis]
75In the instant case, I accept the evidence of Detective Constable Stamp, Detective McLean and Sergeant Furlong that Mr. Blake understood the charges he was facing.
76Further, Mr. Blake had full access to legal counsel and legal advice concerning the meaning of his charges before he was interviewed by police. Detective Constable Stamp called for duty counsel at 1:51 p.m. On the return of the call by duty counsel, Sergeant Turner brought Mr. Blake out of his cell at 2:35 p.m. to speak to duty counsel. That call lasted for twelve minutes until 2:47 p.m. at which time Mr. Blake was taken for fingerprinting by Sergeant Turner. At 3:02 p.m. Mr. Blake was lodged back in his cell.
[77] On the evidence, I find that there was no breach of Mr. Blake’s s.10(a) Charter rights.
Charter s.10(b) – Rights to Counsel
78The purpose of s.10(b) of the Charter is to provide a detainee with an opportunity to obtain legal advice relevant to his legal situation.
79There are two components to s.10(b). The first is the informational component which obliges polices to advise a detained person of his or her rights to counsel. The informational component mandates that certain specific information be provided to the subject.
80I am satisfied on all of the evidence that the informational component has been satisfied and that Mr. Blake received his rights to counsel and caution upon his arrest.
81Flowing for the informational component is the implementational component which creates obligations on both the police and detainee. The implementational component only arises when the detainee invokes his or her s.10(b) rights and is reasonably diligent in exercising them. When that happens, the police are obliged to provide a reasonable opportunity for the detainee to exercise his or her rights and must refrain from eliciting evidence.[7]
82Section 10(b) ensures that, at a minimum, persons may be given the opportunity to speak with counsel upon their detention and after right to counsel have been provided. The chief purpose is to ensure that the detainee understands that he or she can choose whether or not to cooperate with police.[8]
83Mr. Blake submits that he had asked to speak to counsel and had asked that he speak to his wife to call counsel. Kristen Halbert and Angela Blake testified that if they had received a call from Mr. Blake, they would have and could have obtained counsel for him.
84However, evidence also is clear that Mr. Blake wished to speak to duty counsel and he was afforded that opportunity before he was interviewed. In fact, it is readily apparent that Mr. Blake fully comprehended that he had a choice about whether to cooperate with police and provide a statement or remain silent.
85He made no complaint about his consultation with duty counsel either before or during his videotaped statement. At one point during the interview, Detective McLean asked if Mr. Blake wished to speak to duty counsel again and Mr. Blake declined.
86Although we do not know what advice was provided by duty counsel, it is clear that duty counsel made Mr. Blake aware of his right to remain silent. At the beginning of the videotaped interview, Mr. Blake told Detective McLean that duty counsel advised: “and she said I mustn’t talk to you”… “but even I wanted to talk I mustn’t say anything to you”.
87Mr. Blake affirmed his understanding of his right to remain silent later in the interview yet he chose to participate in the interview and answer Detective McLean’s questions.
88Nowhere in his interview did Mr. Blake complain about the advice he had received from duty counsel. However, on two occasions during the interview he confirmed that he believed he should have a lawyer. He did not specify as to when or why he felt he needed a lawyer (i.e. for court or for the interview).
89On further two occasions during the interview, Mr. Blake asked to contact his wife to arrange to speak to a lawyer. He did not express any dissatisfaction with his consultation with duty counsel or give this as a reason why he wished to further consultation with counsel. In any event, at all material times, it was clear that Mr. Blake was aware of his right to remain silent.
90I conclude on an examination of all of the evidence that Mr. Blake’s interview statement to Detective McLean is devoid of any Charter violation.
91I have considered Mr. Blake’s rights recognized by s.7 of the Charter and the common law rule related to proof of voluntariness of statements. They are related. I have found that the two utterances and the interview statement given by Mr. Blake are voluntary and therefore admissible with the exception of any references to any child abuse investigation or allegations.
[92] Having found that the Crown has proven voluntariness beyond a reasonable doubt, there can be no finding that Mr. Blake’s s.7 Charter rights had been breached.[9]
CONCLUSION
[93] I find that the two utterances made by Mr. Blake were spontaneous, voluntary and therefore admissible. The police did not infringe Mr. Blake’s s.10(a) or s.10(b) rights. The statement made by Mr. Blake on his interview with Detective McLean was made voluntarily and is admissible save and except for any evidence in respect to the child abuse allegations. Lastly, the police did not infringe Mr. Blake’s s.7 Charter rights.
94For the reasons, Mr. Blake’s application to exclude evidence is dismissed. The Crown’s application regarding voluntariness regarding the two utterances and Mr. Blake’s police interview is granted save and except for excision and editing of any reference regarding child abuse evidence.
DiTOMASO J.
Released: January 25, 2013
1See R. v. Oickle, 2000 SCC 38, [2000] S.C.J. No. 38 (S.C.C.)
2See R. v. Oickle, supra
3See R. v. Cruz, 2008 Carswell Alta 672 (Prov. Ct.) at paras. 172-175
4See R. v. Oickle, supra
5See R. v. Oickle, at paras. 65-67
6See R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869 at para. 335 (S.C.C.)
R. v. O’Donnell (1991), 1991 CanLII 2695 (NB CA), 66 C.C.C. (3d) 56 (N.B.C.A.)
R. v. Lund, 2008 ABCA 373, 2008 A.B.C.A. 373 at para. 16
7See R. v. Sinclair, 2010 SCC 35, [2010] S.C.J. No. 35 at para. 25 (S.C.C.)
8See R. v. Sinclair, supra, at para. 24
9See R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405 at para. 37