CITATION: R. v. Brown, 2015 ONSC 2092

DATE: 20150331

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Recardo George Brown

BEFORE: Justice Spies

COUNSEL: Sam Siew, for the Crown

Tyler MacDonald, for the Defendant

HEARD: March 16 and 17, 2015

RULING on voluntariness of mr. Brown’s statemenT to police

and defence s. 10(b) charter application

Overview

[1] On July 5, 2012, during the execution of a search warrant at the Island Grill Restaurant (the “Restaurant”) in Toronto, Mr. Brown was charged with possession of cocaine for the purpose of trafficking and possession of proceeds of crime. He appeared before me for trial and pleaded not guilty to these charges.

[2] It is the theory of the Crown that Mr. Brown had a quantity of cocaine in his possession when police arrived, which he threw over a fence just before he was arrested in the backyard of the Restaurant. Following Mr. Brown’s arrest for those offences, a search warrant for his apartment was obtained by police and during the course of that search a further quantity of cocaine and cash was found. As a result, Mr. Brown faced one additional count of possession of cocaine for the purpose of trafficking and one additional count of possession of proceeds of crime. Those two charges were withdrawn in advance of this trial after the Defence served application material on the Crown alleging s. 8 Charter breaches with respect to the search warrant for Mr. Brown’s apartment.

[3] At the outset of the trial, Mr. Siew sought a ruling on the admissibility of a videotaped statement given by Mr. Brown to Officers Margetson and Nishikowa on July 6, 2012 (the “Statement”). At that time Mr. Brown was facing both sets of charges and the questioning pertained to both. For the purpose of the voir dire, Mr. Siew conceded that there was a breach of Mr. Brown’s Charter rights with respect to the search warrant obtained for the search of his apartment and that that portion of his Statement causally connected to the charges relating to the cocaine and cash found in his apartment would not be admissible in any event.

[4] Initially Mr. Siew advised that he only wanted to tender a portion of the Statement that I would characterize as an admission by Mr. Brown that he wrapped cocaine in tinfoil. With the consent of counsel I proceeded to hear submissions as to whether or not that portion of the Statement was causally connected to the seizure of cocaine in Mr. Brown’s apartment or not as a decision that it was causally connected would result in its inadmissibility and obviate the need for a voir dire.

[5] The Statement was played and after hearing submissions, I found that when Mr. Brown was asked to confirm that he had wrapped certain cocaine in tinfoil, which he did, that he and the officer were clearly talking about the cocaine found in his apartment. Mr. Brown had admitted that he had cocaine in the apartment but had denied having any cocaine in his possession at the Restaurant. Accordingly, I found that this portion of the Statement that the Crown sought to introduce as part of its case was causally connected to the search of Mr. Brown’s apartment and, given the concession by the Crown, it would not be admissible in the trial in any event.

[6] Mr. Siew then advised that there was another portion of the Statement where Mr. Brown gave evidence about what happened at the time of his arrest at the Restaurant and that he wanted a ruling on the admissibility of that portion of the Statement so that he could use it if necessary in cross-examining Mr. Brown. As a result it was necessary to proceed with the voir dire and determine the question of voluntariness and to hear the s. 10(b) Charter application brought by the Defence. With the agreement of counsel we proceeded with a blended voir dire.

[7] After hearing the evidence and considering the submissions of counsel I ruled that the Crown had not satisfied me beyond a reasonable doubt that the Statement was voluntary. I also found that the police breached Mr. Brown’s s. 10(b) Charter rights and that as a result the Statement would have been inadmissible in any event for any purpose at trial pursuant to s. 24(2) of the Charter. I gave brief oral reasons for my decision and advised counsel that I would provide further written reasons. These are those reasons.

The Evidence and Preliminary Findings of Fact

The Chronology

[8] The Crown called four officers involved in the arrest and the taking of the Statement of Mr. Brown. Officer Nishikowa was the first officer to have contact with Mr. Brown. He arrested Mr. Brown in the backyard of the Restaurant and described his arrest after he alleges he saw Mr. Brown throw a clear plastic bag over a fence which was later discovered to contain 9.95 grams of crack cocaine.

[9] There was nothing unusual about the manner of arrest although Officer Nishikowa had his gun drawn when he entered the Restaurant for officer safety purposes and it was still drawn when he went to arrest Mr. Brown. He was pointing it towards the ground and never pointed it at Mr. Brown. He holstered his gun in order to place handcuffs on Mr. Brown. As he entered the Restaurant he had been yelling “police” and “search warrant” and once he encountered Mr. Brown in the backyard he told him to “get down”. He said that Mr. Brown was a little dazed at first but then complied lying down on the ground on his stomach. He was handcuffed to the rear at which point Officer Nishikowa told Mr. Brown he was under arrest for possession for the purpose of trafficking. He then did a pat-down search at which time he found Canadian currency totalling $1,115. This process took less than a minute. This evidence was not challenged.

[10] Officer Brewer was the next to arrive and Officer Nishikowa asked him to stand by Mr. Brown while he went back inside the Restaurant to see if other officers needed his assistance. Although the evidence is unclear as to how long Mr. Brown was on the ground I am satisfied that at least by the time Officer Brewer arrived that he was standing when Officer Brewer took control of him.

[11] Officer Brewer is the first officer to give Mr. Brown his rights to counsel. He informed Mr. Brown that he was being arrested for possession for the purpose of trafficking cocaine and he then read the standard rights to counsel script from the back of his memo book. When Officer Brewer asked Mr. Brown if he wished to call a lawyer “now”, Mr. Brown said that he didn’t need a lawyer and that he didn’t do anything wrong. Officer Brewer then told Mr. Brown again what he was under arrest for and stressed the importance of contacting the duty counsel lawyer. At this point Mr. Brown said “OK”.

[12] Officer Brewer did not recall asking Mr. Brown if he had a lawyer. Mr. Siew asked him to check his notes which he did and he apparently has a note that Mr. Brown said “I don’t have a lawyer”. Officer Brewer said it was after that that he stressed the importance of duty counsel and that Mr. Brown agreed. Officer Brewer had no other conversation with Mr. Brown about calling counsel.

[13] After a 25 minute wait, Officer Brewer and his escort Officer Patton transported Mr. Brown to 51 Division. They arrived at the station and paraded Mr. Brown before the sergeant in charge at about 3:30 p.m. Neither Officer Brewer nor Officer Patton recalled any conversation with Mr. Brown during his transport to the station.

[14] When Mr. Brown was paraded, he was told that he had been arrested for possession for the purpose of trafficking in cocaine. The booking sergeant also stated that he understood that he wished to speak to a “legal aid - duty counsel lawyer”. There was then some discussion about what sounds like a scrape that Mr. Brown may have gotten on his forehead as a result of going down on the ground but Mr. MacDonald made no submissions about this. Mr. Brown told the booking sergeant that he had not taken any illegal drugs or alcohol in the last 24 hours. He did advise the booking sergeant that he is diabetic and that he requires medication that he takes in the morning and at night. There was a discussion between the booking sergeant and the officers about getting Mr. Brown’s medication from his apartment and the fact that officers were still there.

[15] Officers Brewer and Patton conducted a Level 3 search of Mr. Brown and nothing was found. Neither Officer Brewer nor Officer Patton had a clear recollection of the Level 3 search that was done of Mr. Brown. I can understand that, although I was somewhat surprised that they did not seem to have a standard procedure that they always followed in terms of how much clothing would have been left on Mr. Brown at any one time. Although Officer Brewer testified that Mr. Brown was never naked at any time, in cross-examination he admitted that he couldn’t be sure that he was not naked at the time of the inspection of his anal area. Officer Patton testified that he didn’t recall Mr. Brown being fully naked at any time. Mr. MacDonald did not raise an issue about this search in his submissions.

[16] Officer Brewer then took Mr. Brown to interview room # 3 and told him to wait until he was able to put him in touch with duty counsel. He did not give a time for this but I presume it was no later than 4:00 p.m.

[17] Officer Nishikowa testified that after the arrest he saw Mr. Brown again back at 51 Division at 11:20 p.m. when Mr. Brown was in the interview room. He did not say what interview room and when he was asked if he brought Mr. Brown from the cells to the interview room Officer Nishikowa testified that it was his practice to take someone to be questioned from the “hard interview room” to the “soft interview room” where the cameras are but he had no recollection of doing that in this case. There was no evidence that Mr. Brown was taken to a cell before giving his Statement. This evidence implied that when Officer Nishikowa next saw Mr. Brown he was already in the “soft interview room” but I as I will come to I have concluded that is not correct and that he in fact transported Mr. Brown from interview room # 3 to the soft interview room where the Statement was taken.

[18] At the time this evidence was received, it seemed that Officer Nishikowa was suggesting that he next saw Mr. Brown when he was already in the “soft interview room” where the Statement was taken, but the Statement was not taken until 1:04 a.m. on the morning of July 6th. As a result it must be that Officer Nishikowa saw Mr. Brown in interview room # 3, which would be a “hard interview room” at 11:20 p.m. As I will come to, it is likely that when Officer Nishikowa saw Mr. Brown at this time it was to allow him to take a call back to speak to duty counsel.

[19] Officer Nishikowa testified that he believed Mr. Brown wanted to speak to duty counsel but he did not know for sure. He said it was good practice that Mr. Brown should speak to someone but Mr. Brown never told him that he wanted to speak to duty counsel. In any event it was Officer Nishikowa who called for duty counsel for Mr. Brown at 10:07 p.m. and so he must have received information from another officer that Mr. Brown wanted to speak to duty counsel.

[20] Officer Nishikowa testified that he called the number on the back of his memo book; 1-800-265-0451, which is part of the standard rights to counsel script and he was asked, through an automated voice system, to identify himself, his police division, what police service he was with, the name of the defendant, the charges and to give a callback telephone number and any other information. After answering these questions he was told to wait until a duty counsel lawyer called. Officer Nishikowa testified that there was nothing unusual about the call and he provided the necessary information.

[21] Although Officer Nishikowa had no independent recollection of this, according to his notes, which were made contemporaneously with these events, he received a callback at 11:20 p.m. He had no recollection of what happened when he answered the phone and had no recollection of giving the phone to Mr. Brown or having any conversation with Mr. Brown concerning duty counsel before the interview started. He said usually the procedure is that it will be announced over the PA system that duty counsel is on the phone for Nishikowa and he then has the call transferred back to where he is or he just gives the phone to the accused. Officer Nishikowa testified that Mr. Brown could have taken the phone call in the interview room and so I presume Mr. Brown took the call in interview room # 3. Given this evidence, even though Officer Nishikowa does not recall the conversation he must have at least gone into the interview room to give Mr. Brown the phone. That would explain his evidence that I already referred to that he saw Mr. Brown again at 11:20 p.m. If Officer Nishikowa had a conversation with Mr. Brown at that time, beyond handing the phone to him, even though he has no recall of it, given his other evidence I find that he did not threaten Mr. Brown or give him any inducement to make a statement at this time.

[22] There is no direct evidence as to whom Mr. Brown spoke to. Officer Nishikowa testified that when he gets a call from duty counsel, they do say their name and spell it and ask if the officer has any questions or not. It is a quick interaction. He made no note of the name of the person that Mr. Brown spoke to. All he has in his notes is “DC-Brown”.

[23] There is also no direct evidence of how long Mr. Brown was on the phone. Officer Nishikowa testified that he made all of the calls for lawyers for all five defendants arrested as a result of the search warrant executed at the Restaurant. All but one spoke to duty counsel. Although he testified that he made all the calls within the span of a couple of hours, he said the first call was at 7:44 p.m. for another defendant. It would seem however, since the call that Officer Nishikowa made for Mr. Brown was not until 10:07 p.m., that he likely did not make all of the calls one after the other. The only assistance Officer Nishikowa was able to provide is that the next call that he made for one of the other defendants after the call for Mr. Brown was at 11:25 p.m. and so the phone call that Mr. Brown had could have been no more than five minutes long as there is only one phone in this area.

[24] Officer Margetson testified that he spoke to Officer Nishikowa before going in to interview Mr. Brown and that he understood that Mr. Brown had spoken to duty counsel. Officer Margetson agreed that was just a logical assumption but said that in 25 years as an officer he had never heard of anyone other than a duty counsel lawyer calling back. He also described the process that officers have for calling duty counsel in a manner consistent with the evidence of Officer Nishikowa.

[25] The Statement was taken by Officer Margetson with the assistance of Officer Nishikowa who took notes. Although Officer Nishikowa did not recall it, Officer Margetson testified that Officer Nishikowa brought Mr. Brown into the interview room where the Statement was taken. Although Officer Nishikowa had no recollection of any conversation he had with Mr. Brown when he moved him from interview room # 3, given the evidence of Officer Margetson, I find that he must have done so. It would make sense since he was the officer assisting Officer Margetson with the Statement. Again even though he has no recall, given his other evidence I find that Officer Nishikowa did not threaten Mr. Brown or give him any inducement to make a statement at this time.

[26] The interview began at 1:04 a.m. and concluded at 1:17 a.m. and as such was 14 minutes long. Officer Margetson explained how he had become involved and testified that he offered to assist in this investigation and had already taken his team to search Mr. Brown’s apartment. That search warrant had been obtained earlier in the day after Mr. Brown was arrested and taken into custody. As a result of his familiarity with the results of that search, Officer Margetson agreed to interview Mr. Brown.

[27] Officer Margetson testified that there were no off-camera discussions with Mr. Brown. Officer Nishikowa also testified that after the Statement was taken nothing else was said to or by Mr. Brown. He had no recall of walking Mr. Brown back to the cells or of any further interaction with him after that. Officer Margetson testified that he took Mr. Brown back to the cells and that they did not talk about anything of consequence and if anything it was only small talk. Officer Margetson had no further interaction with Mr. Brown thereafter.

[28] Both Officers Nishikowa and Brewer testified that they had no knowledge of Mr. Brown making any requests while he was waiting in interview room # 3. By my estimation Mr. Brown was in interview room # 3 from about 4:00 p.m. to 1:00 a.m. the following morning; a period of 9 hours. In that period the only contact he had with an officer that I have any evidence about was at 11:20 p.m. with Officer Nishikowa. There is no evidence that Mr. Brown was given his medication or any food and water or permitted to go to the washroom in that period of time. This is an issue that was raised by Mr. MacDonald with respect to the voluntariness of the Statement that I will come back to.

The Contents of the Statement

[29] At the outset of the interview Officer Margetson asked Mr. Brown if he knew what he was under arrest for and Mr. Brown shook his head to indicate he did not. He was then asked if the officers explained what he was under arrest for. Mr. Brown’s answer is difficult to hear but he said something to the effect that “on this one that I’m taping [I presume a reference to the Statement] – you went to my apartment”. This means that Mr. Brown knew by this time that the officers had gone to his apartment. Officer Margetson said “yes” and then told Mr. Brown that he was under arrest for two counts for possession of cocaine for the purpose of trafficking and two counts of possession of proceeds of crime. He was asked if he understood this and Mr. Brown nodded affirmatively.

[30] Officer Margetson then went on to confirm that Mr. Brown had spoken to a lawyer. Mr. Brown told him that he spoke to an “advisor”, not duty counsel, and that he was given “some counsel”. When Officer Margetson then tried to clarify that he spoke to a lawyer, Mr. Brown said he did not speak to a lawyer and that “he told me he’s not really a duty counsel, just an advisor and that if I want a duty counsel he could tell me how to get one”. To that Officer Margetson responded “he was duty counsel. Just so you know, he was duty counsel and when you go to court you can speak to duty counsel there as well. We don’t have advisors calling you. Alright?” He then asked Mr. Brown if he understood that the person he spoke to was a lawyer and Mr. Brown nodded affirmatively and said very softly “Yes, sir”.

[31] Officer Margetson then cautioned Mr. Brown about his right to remain silent again about his rights to counsel and then gave him the secondary caution that if he had spoken to any police officer that Officer Margetson did not want that to influence Mr. Brown into making a statement. There is no issue about the cautions.

[32] Officer Margetson advised Mr. Brown that he wanted to speak to him about his apartment and some things that they found there and he asked Mr. Brown if other police officers had spoken to him and explained this. Mr. Brown acknowledged that they had and the interview then proceeded to discuss what was found in his apartment. Officer Margetson told Mr. Brown that a search warrant had been executed at his apartment and asked if he knew that. Mr. Brown said “yes” and that an officer told him. This exchange is the basis upon which I concluded that there was a significant gap in the evidence in that I had not heard from all of the officers who had a significant discussion with Mr. Brown prior to his giving the Statement.

[33] Officer Nishikowa was asked what he took from Mr. Brown’s Statement that he did not speak to duty counsel but only an advisor and he testified that although he had no recollection of any conversation with the person who called back, he knows that Mr. Brown spoke to a duty counsel since he did not call an advisor. He believed that Mr. Brown was confused as to whether the person he thought was the counsellor was actually a lawyer and duty counsel. Officer Nishikowa fairly admitted that Mr. Brown might not have known he was speaking to a lawyer at the time he had the conversation with the person he described as an advisor. Nevertheless he did not think there was a problem in proceeding with the questioning at the time. It did not occur to him that they should hold off and make sure that Mr. Brown spoke to somebody again before he gave his Statement. I note that Officer Nishikowa was fairly new at this point and had only been with the unit for three months; he had participated in less than ten interviews by this time.

[34] Officer Margetson testified that when Mr. Brown said that he had spoken to an advisor, he thought that he must be confused because the person on the line had said that he wanted to give him some “advice”. Officer Margetson admitted that it was important for Mr. Brown to speak to a lawyer for legal advice but he had no concern that he didn’t get legal advice. There was no doubt in his mind that Mr. Brown spoke to a duty counsel and he testified he felt that if he called duty counsel again they would go through the same thing and he didn’t see the point of doing the whole procedure again. He added that there is some onus on a defendant to be diligent about exercising his right to counsel. Mr. Brown never asked to make another call or indicated that he was not satisfied with the call that he had made or the advice he got.

[35] After reviewing a portion of the videotaped Statement again, Officer Margetson admitted that at the time of the telephone conversation Mr. Brown probably didn’t know that the person he spoke to was a lawyer. He admitted that if Mr. Brown had asked, he would have allowed him to speak to duty counsel again but in his view he didn’t have to give Mr. Brown that option because he believed he had spoken to counsel.

[36] Officer Margetson also admitted that if this type of situation ever occurred again he would make an offer to a defendant to speak to duty counsel again but I would not characterize this admission as an admission of wrongdoing but rather that he would do this to avoid having to come to court and testify.

The Gap in the Evidence

[37] Officer Nishikowa testified that he could not recall if Mr. Brown was told about the additional charges before the interview but it is clear from what was said by Officer Margetson and Mr. Brown at the beginning of the Statement that a police officer, not Officer Margetson, had advised Mr. Brown of what had been found as a result of the exercise of a search warrant of his apartment and that as a result that he was facing additional charges. There is no doubt that that discussion occurred in advance of Mr. Brown giving his Statement. I do not know whether or not Mr. Brown was formally rearrested during that discussion and re-cautioned for the second set of charges. Even if that did not occur, this would clearly have been a significant discussion since the officers seized a large quantity of cocaine and cash from his apartment and Mr. Brown was also advised that as a result he was now facing an additional count of possession of cocaine for the purpose of trafficking and possession of proceeds of crime.

[38] I received no evidence at all about who the officer or officers were who had this discussion with Mr. Brown and what the nature of the discussion was. I also have no idea when this discussion occurred and whether or not Mr. Brown was even aware of the results of the search of his apartment and these additional charges when he had the discussion the officers believed was with duty counsel. All that I know for certain is that the discussion took place before Mr. Brown was questioned by Officer Margetson.

[39] Mr. Siew argued that it must have been Officer Nishikowa who spoke to Mr. Brown because he was the officer most involved with Mr. Brown. For a number of reasons I do not accept that submission. First of all, neither counsel asked Officer Nishikowa specifically whether or not he was the officer that had this discussion with Mr. Brown. Furthermore, as already stated, Officer Nishikowa did not even know or recall if Mr. Brown was told about the additional charges before giving his Statement. On other occasions in his evidence when Officer Nishikowa had no recollection of an event, he was asked to refresh his memory from his notes and so I presume there is nothing in his notes to suggest that he was the officer who told Mr. Brown about the results of the search of his apartment and the additional charges.

[40] Furthermore, had it been Officer Nishikowa, presumably at the time Officer Margetson asked the question of Mr. Brown of whether or not he was aware of the results of the search of his apartment Officers Margetson and/or Nishikowa would have said something to suggest that to Mr. Brown. For example, Officer Margetson did not say “this officer”; referring to Officer Nishikowa or “Officer Nishikowa spoke to you about a search of your apartment”. He clearly suggested to Mr. Brown that it was other officers who had spoken to him.

[41] In addition, there were a number of officers involved in the exercise of the search warrant on the Restaurant and Officer Margetson testified that it was “his team” that went to execute the search warrant on Mr. Brown’s apartment. It could well have been another member of his team who went in to see Mr. Brown and provide him with this information. Certainly there was no evidence to suggest that that might not have occurred.

[42] For these reasons I find that I have no evidence of what Mr. Brown was told when he was advised of the results of the search of his apartment and the fact he was facing additional charges and I do not know which officer or officers told him this, what was said and when save that it was before he gave his Statement.

Analysis – Voluntariness

[43] There is no evidence to suggest that Mr. Brown was not of an operating mind in that he had consumed alcohol or drugs. Each of the officers who testified confirmed this as did Mr. Brown when he was booked.

[44] To the extent the four officers testified about their contact with Mr. Brown, I accept their evidence that at no time were there any inducements given, threats made, physical force used or any other inappropriate conduct that could give rise to a reasonable doubt about the voluntariness of the Statement.

[45] Neither counsel provided any case law on the issue raised by Mr. MacDonald about a gap in the evidence. The case on this point that I am familiar with is R. v. S.S., [1996] O.J No. 4564 (O.C.J. Gen. Div.) which I followed in R. v. W.G., 2010 ONSC 5666 and R. v. D.M., 2014 ONSC 5861. W.G. was followed in R. v. Dessouza, 2012 ONSC 211. The only appellate jurisprudence citing S.S. that I am aware of is R. v. Genaille (1997), 1997 CanLII 4333 (MB CA), 116 C.C.C. (3d) 459, [1997] M.J. No. 341 (Man. C.A.). However, in R. v. Socobasin (1996), 1996 NSCA 201, 110 C.C.C. (3d) 535, [1996] N.S.J. No. 387 (N.S. C.A.) (leave to appeal refused [1996] S.C.C.A. No. 628), the Nova Scotia Court of Appeal came to the same conclusion stating:

It is not an absolute rule that every person in authority irrespective of the degree of contact with an accused need be called on a voir dire. Each case turns on its own facts. Only persons who have evidence that bears upon the voluntariness of the statement of the appellant need to be called. (see paras. 74-80)

[46] As Justice D.S. Ferguson put the issue in S.S. (at para. 13):

When the defence contends that a certain witness should have been called, the issue is this: taking into account the circumstances revealed by the witnesses who have testified, does the absence of that witness leave the trial judge with a reasonable doubt as to the voluntariness of the statement?

[47] Ferguson J. also referred (at para. 12) to Sopinka, The Law of Evidence in Canada, 1992, at p. 354, where it was stated:

The issue on the voir dire is not who was present when the statement was made or who had contact with the accused. Rather, the issue is whether the Crown has discharged the burden of proof in the context of the facts of a particular case that the statement was voluntary. In some circumstances, however, the unexplained absence of a witness who was present or had control over the accused may raise a reasonable doubt on the issue of voluntariness. (p. 353)

[48] Ferguson J. also observed (at para. 14) that whether or not the absence of that witness raises a reasonable doubt is a question of fact and depends on the circumstances of the case. “There is no reason for the judge to be left with a reasonable doubt if there is nothing more than mere possibility or conjecture that the missing witness was involved in a way that would affect the statement.” [citations omitted]

[49] In this case, I have found that I have no evidence of what Mr. Brown was told when he was advised of the results of the search of his apartment and the fact he was facing additional charges and I do not know which officer or officers told him this, what was said and when save that it was before he gave his Statement. I do not know if Mr. Brown was formally arrested for the additional charges at that time and given his right to counsel and cautioned again. Whatever the nature of that discussion it would necessarily have been one that was significant and in my view that officer or officers should have testified before me. Although I do not know what was said, it is not mere speculation that something of significance was said in that the results of the search warrant would have been discussed which formed a large part of the interview that followed. This is not some peripheral or insignificant contact with Mr. Brown and without this evidence; I find that I have a reasonable doubt as to whether or not his Statement that followed was voluntary.

[50] It is also of significance that I do not know whether or not this discussion about the results of the search of his apartment occurred before or after Mr. Brown spoke to the duty counsel/advisor. In my view the question of the timing of this discussion in and of itself is a problem, certainly with respect to Mr. Brown’s Charter rights because even if I assume that he spoke to duty counsel he may not have appreciated the extent of his jeopardy at that time. The discussion with duty counsel was one and one half hours before he gave the Statement so it is quite possible that the discussion that there is no evidence about, concerning the results of the search of his apartment, occurred after that.

[51] Mr. MacDonald also argued that there was a fatal gap in the evidence because I have no evidence as to whether or not Mr. Brown was given any food or water, or his medications or even allowed to go to the washroom in the nine hours he was held before giving his Statement. Apart from general principles he provided no authorities on this issue. I reviewed some of the authorities relevant to this issue in W.G. as there the defendant had been held in custody for almost 11 hours and those are the authorities that I have considered again.

[52] Although in a question of Officer Nishikowa Mr. Siew made mention of Mr. Brown being taken from a cell to the room where he gave his Statement, as I have stated there is no evidence that Mr. Brown ever left what Officer Nishikowa described as the hard interview room; interview room # 3. In that room he had a chair and a table and no immediate access to a toilet or sink. Officer Margetson did not ask Mr. Brown whether or not he needed anything or confirm that he had received food and water and his medication.

[53] This is more than an issue of physical discomfort and is particularly significant since Mr. Brown told police that he is diabetic. Given the length of time that Mr. Brown was held I would have expected some evidence to confirm that he had been offered food and water and given his medication and access to a washroom. This is not something I can presume happened from any evidence that I heard. However, based on my observations of Mr. Brown while giving the Statement, he was fully dressed and did not seem to be in any physical distress and at no time during the interview did he make any complaints or requests. The interview was done in a casual way and neither officer was aggressive. In my view if Mr. Brown had needed something he would have felt comfortable asking Officer Margetson. I, therefore, do not conclude that the absence of evidence on this issue raises a reasonable doubt.

[54] However, for the reasons already given, I do find that I have a reasonable doubt on the issue of voluntariness given the absence of evidence on the contact with Mr. Brown when he was told about the results of the search warrant of his apartment and the additional charges. Specifically I am left in a reasonable doubt as to whether that officer or officers, who would necessarily have been persons in authority, said something to Mr. Brown that affected the Statement he made. Accordingly, for those reasons, I ruled that the Statement was not admissible for any purpose.

Analysis – s. 10(b) of the Charter

[55] Although my decision on the voluntariness voir dire rendered the Charter application moot, I did consider the arguments advanced by counsel. Had it been necessary I would have granted the Defence application and ruled the Statement inadmissible because of a serious breach of s. 10(b) of the Charter and in particular the failure of police to fulfill their implementation duty to ensure Mr. Brown had a reasonable opportunity to exercise his right to counsel before proceeding with the Statement.

[56] When this issue arose during the voir dire, Mr. Siew advised that he would try to obtain a witness from Legal Aid. He later advised that he was unable to do so. It would obviously have been better if Officer Nishikowa had noted the name of the person who called back. Although I have no direct evidence that that person was in fact a lawyer, for the purpose of my decision on the Charter application I presumed, based on the evidence of the officers as to the procedure used to contact duty counsel, that Mr. Brown spoke to a duty counsel lawyer. However, I also found that Mr. Brown clearly did not realize at the time of that conversation that he was speaking to a lawyer, assuming that was in fact the case. Although Mr. Brown did not testify both Officer Nishikowa and Officer Margetson admitted that that is what Mr. Brown believed at the time and neither suggested he was making that up.

[57] In my view, given the purpose of s. 10(b) of the Charter as expressed by the Supreme Court of Canada and our Court of Appeal, the implementational duty on police is not discharged merely by putting a defendant in touch with a duty counsel lawyer. Where, as in this case, the defendant makes it very clear that he did not think that he was in fact speaking to a lawyer a failure to put him in touch with duty counsel a second time is a serious breach of s. 10(b) of the Charter.

[58] The purpose of the right to counsel as set out in s. 10(b) of the Charter has been described by the Supreme Court of Canada in cases such as R. v. Bartle, 1994 CanLII 64 (SCC), [1994] S.C.J. No. 74. In that case, the court repeated observations made from its earlier decision of R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233 and held at para. 16:

The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfill those obligations: R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at pp. 1242-43. This opportunity was made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him - or herself. Accordingly, a person who is “detained” within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty. Under s. 10(b), a detainee is entitled as of right to seek such legal advice “without delay” and upon request. [Emphasis added]

[59] Mr. MacDonald relied on R. v. Badgerow, 2008 ONCA 605, [2008] O.J. No. 3416 (Ont. C.A.); leave to appeal refused (2009), 2009 CarswellOnt. 613 (SCC). I agree with his submission that although the court in that case was dealing with a defendant who was trying to exercise his right to choose a specific lawyer to speak to, the general principles articulated by the court apply here.

[60] In Badgerow, like the case at bar, the defendant did not testify on the voir dire and the findings of fact made by the court were based on the evidence of the officer who was involved in placing calls to lawyers for the defendant as well as audio recordings of his interaction with the defendant. Following his arrest the defendant asked to speak to a specific lawyer. When he was unable to reach that lawyer he eventually spoke to one of the lawyer’s partners and asked that partner to keep trying to contact his lawyer. He told the arresting officer that although he had spoken with a lawyer, his instructions to that lawyer were to keep getting in touch with the lawyer that he wanted to speak to and when he did so to tell that lawyer what had happened and ask if he could get in touch with the defendant. To that the arresting officer said “To get in touch with you? But you are happy that you have had that, an opportunity to speak with counsel now?” to which the defendant said “yes”. The defendant then asked, however, if there was a chance he could make another phone call and the officer said “not right yet”.

[61] The court in Badgerow found that the trial judge’s reliance on R. v. Mayo, 1999 CanLII 2695 (ON CA), [1999] O.J. No. 714 (Ont. C.A.), a decision relied upon by the Crown in this case, was misplaced and went on to distinguish that case from the case before it. The court found it important that the defendant in Mayo did not raise a s. 10(b) Charter argument at trial and that immediately after speaking to legal aid duty counsel, in response to a direct question, the defendant confirmed that he was satisfied that he had obtained “proper legal instruction” [Emphasis mine]. The court found that unlike Mayo, Mr. Badgerow did not acknowledge being satisfied that he obtained “proper legal instruction” and on the contrary acknowledged only that he had spoken to a particular lawyer (at para. 39). The court said: “[s]ignificantly, both immediately before and immediately after acknowledging that fact, the appellant made statements that raised at least the possibility that he had not exercised his right to counsel.” The court then concluded, based on a number of factors, that the only reasonable interpretation of the comments made by the appellant was that he was still trying to obtain advice from the specific lawyer that he wanted to speak to in the first place. The court found (at para. 42) that at a minimum his comment raised an issue concerning whether he was still seeking assistance from that lawyer and required the arresting officer to clarify that issue.

[62] The court concluded as follows:

As the trial judge noted, there is also ample authority that what the police are required to say and do in a particular case to fulfill their duties under s. 10(b) will depend on what the accused says and does and what the police could reasonably surmise in the circumstances [citations omitted]. (at para. 45)

Although the police cannot be expected to be mind readers, they are not entitled to ignore statements by an accused that raise a reasonable prospect that the accused has not exercised his or her s. 10(b) rights. Rather, when an accused makes such a statement, the police must be diligent in ensuring that an accused has a reasonable opportunity to exercise his or her rights, and may not rely on answers to ambiguous questions as the basis for assuming that an accused has exercised his or her rights. (at para. 46, emphasis added)

[63] The court also noted this was not a situation of any urgency. That is certainly so in the case at bar. There is no evidence of urgency and in fact the delay in obtaining the Statement suggests the opposite.

[64] Another key finding of the court in Badgerow that is of assistance in deciding this application is Justice Simmons’ observation at para. 50:

In my view, the possibility that Mr. Mackesy [the lawyer the appellant did speak to] may have told the appellant not to say anything is irrelevant to the issue of whether the appellant’s s. 10(b) rights were breached. The right to seek advice from counsel of choice on arrest or detention is not limited to receiving perfunctory advice to keep quiet. Rather it entitles an accused to obtain sufficiently meaningful advice to enable him or her to make an informed choice concerning whether to exercise his or her right to silence. (citations omitted, emphasis added)

[65] Mr. Siew relied on R. v. Williams, [2014] O.J. No. 2559 (Ont. C.A.). In that case the appellant had led no evidence on the voir dire to establish that he had not had an opportunity to confer with his counsel or that he made the officers aware of that fact. The court concluded, at para. 39, that without that evidence there was no basis to conclude that the officers deprived the appellant of his right to counsel. The court went on at para. 40 to distinguish Badgerow on the basis that the appellant’s statements “did not indicate to the officers that he had been deprived of an opportunity to speak to his counsel: indeed, the evidence points to the contrary conclusion.” The court found that the trial judge’s finding that in the circumstances the officer had a reasonable belief that the appellant had exercised his s. 10(b) right to counsel was amply supported by the record. The Williams decision in my view is clearly distinguishable from the case at bar in that the officers fairly admitted that they knew at the time that Mr. Brown did not think that he had actually spoken to a lawyer. This is not a case where the officers were expected to be mind readers, which clearly they are not.

[66] Mr. Siew also relied on R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435 where at para. 9, the court stated:

Generally speaking, if a detainee has not been reasonably diligent in the exercise of his rights [to counsel], the correlative duty set out in this court’s decision in R. v. Manninen [citation omitted], imposed on the police in a situation where a detainee has requested the assistance of counsel are suspended and are not a bar to their continuing their investigation and calling upon him to give a sample of his breath.

[67] In my view the facts in Tremblay are clearly distinguishable and that principle does not apply here. In Tremblay the defendant was actively obstructing the investigation and it appeared to police that he was stalling when he was given the phone to contact a lawyer. Given what Officers Margetson and Nishikowa admitted that they knew once Mr. Brown told them that he had not spoken to a lawyer there is no evidence to suggest that this was a delay tactic on Mr. Brown’s part or that he was not being truthful about his belief that he did not speak to a lawyer.

[68] Since Mr. Brown did not realize that he was speaking to a duty counsel lawyer at the time of the phone call, even if he received legal advice that he could remain silent, I am satisfied that it follows that he would not have had an opportunity to obtain sufficiently meaningful advice to make an informed choice concerning whether to exercise his right to silence.

[69] In the circumstances I do not accept that it was Mr. Brown’s onus to ask to speak to duty counsel again or tell Officer Margetson that he was not satisfied with the one conversation that he had. That is a question that Officer Margetson should have asked. Following the decision in Badgerow, in my view the onus was on the officers to ensure that Mr. Brown not only spoke to a duty counsel lawyer but also that he knew he was speaking to a lawyer at the time of the conversation. Officer Margetson was incorrect that allowing Mr. Brown to speak to duty counsel again would have been redundant. Had he taken the first step of explaining who had been called for Mr. Brown and had he made sure that Mr. Brown understood that advice and called for duty counsel a second time, Mr. Brown would have been in a position to obtain legal advice and any statement given thereafter would have complied with his Charter rights.

[70] As already stated, is also significant that I do not know whether or not Mr. Brown was advised of the results of the search of his apartment and the additional charges before or after he spoke to the duty counsel/advisor. In my view the question of the timing of this discussion in and of itself is a problem, because even if I assume that he spoke to duty counsel he may not have appreciated the extent of his jeopardy at that time. That discussion was one and one half hours before he gave the Statement. This was potentially a further breach of his s. 10(b) Charter rights.

[71] Mr. MacDonald also raised the fact that Mr. Brown was in custody for seven and a half hours before he was able to speak to duty counsel. I agree that that was not acceptable. I understand why that might have occurred given the fact the police obtained a search warrant for his apartment after they executed a search on the Restaurant but no evidence was called to address the delay. Without a reasonable explanation this was also a serious breach of Mr. Brown’s s. 10(b) Charter right to get legal advice promptly following his arrest.

[72] For the reasons given, I found that Mr. MacDonald had satisfied me on a balance of probabilities that Mr. Brown’s s. 10(b) Charter rights were breached in a number of ways.

Analysis - s. 24(2) of the Charter

[73] I advised counsel that I had concluded that as a result of the breach of Mr. Brown’s s. 10(b) Charter rights the Statement was not saved by an analysis pursuant to s. 24(2) of the Charter and that the Statement would have been excluded in any event. My reasons are as follows.

[74] Having found breaches of s. 10(b) of the Charter, a s. 24(2) analysis was necessary as guided by the decision of the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, which sets out the factors I must consider and balance in order to make this determination.

[75] Before turning to those factors, I note that in Grant, the court stated at paras. 91 and 92:

[91] 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.

[92] The three lines of inquiry described above support the presumptive general, although not automatic, exclusion of statements obtained in breach of the Charter.

[76] Considering the first inquiry as set out by the court in Grant; the seriousness of the breach, I consider whether permitting the Crown to refer to the Statement for the purpose of cross-examination of Mr. Brown if he testifies would harm the repute of justice by associating the courts with illegal police conduct, Grant at para. 93. This analysis involves a consideration of whether or not the Charter breach was, on the one hand inadvertent or minor or, on the other hand, showed “willful or reckless disregard for Charter rights” (at para. 74). The court must also consider whether the police acted in good faith, (at para. 75).

[77] As the court noted in Grant at para. 94, the negative impact on the justice system varies with the seriousness of the violation. In this case, although I do not find bad faith on the part of Officer Margetson, this was not a minor slip. Had he given what Mr. Brown said any thought, I think it would have become clear to him that it would not be possible for Mr. Brown to obtain meaningful legal advice, if he did not know that he was speaking to a lawyer. Although I appreciate that this situation was an anomaly and may have never occurred before and may never occur again, it was nevertheless a serious violation of Mr. Brown’s s. 10(b) Charter rights. Furthermore, this right is tied to the principle against self-incrimination which has been described as “one of the cornerstones of our criminal law”: R. v. Henry, 2005 SCC 76 at para. 2. There was in addition the lengthy delay in providing Mr. Brown with the right to counsel. These were in my view serious breaches that favoured exclusion of the Statement.

[78] Turning to the second inquiry and considering the extent to which the breach actually undermined the interests protected by the right infringed, as the court said in Grant at para. 95, a breach of s. 10(b):

…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.

[79] This is not a case where compliance with s. 10(b) was technically defective or one where I can conclude that Mr. Brown would have made his Statement notwithstanding the Charter breach. Accordingly I found that this second factor also favoured exclusion of the evidence.

[80] Turning to the third inquiry which focusses on the public interest in having the case tried fairly on its merits, as the court noted in Grant at paras. 97 and 98:

[97] …Just as involuntary confessions are suspect on grounds of reliability, so may, on occasion, be statements taken in contravention of the Charter. Detained by the police and without a lawyer, a suspect may make statements that are based more on a misconceived idea of how to get out of his or her predicament than on the truth. This danger, where present, undercuts the argument that the illegally obtained statement is necessary for a trial of the merits.

[98] In summary, the heightened concern was proper police conduct in obtaining statements from suspects and the centrality of the protected interests affected will in most cases favour exclusion of the 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).

[81] I concluded that the exclusion of the Statement would not undermine the Crown’s case against Mr. Brown as Mr. Siew only intended to use it for the purpose of cross-examination if Mr. Brown testified. For that reason and given the impact on the reliability of the Statement I found that this third factor also favoured exclusion of the Statement.

[82] Finally in weighing the various factors I found, given my consideration of the three Grant factors, that the Statement should be excluded from evidence.

[83] I was reinforced in my decision by the court in Badgerow. Although Badgerow was decided before Grant the findings were of assistance to my analysis. The court noted that the statement was conscripted evidence and as such would generally tend to render the trial unfair. The court also found the appellant was deprived of the opportunity to obtain proper advice that would have allowed him to make an informed choice about whether to speak to the police, that it was not a case where it was obvious the appellant was intent on making a statement and that the reliability of the conscripted evidence did not obviate the impact on trial fairness of admitting the statement. The court concluded that even accepting the trial judge’s finding of police good faith, the nature of the breach and its impact on trial fairness mandated exclusion of the appellant’s statement.

[84] For these reasons I concluded that the Statement would have been excluded in any event pursuant to s. 24(2) of the Charter because of the serious breaches of Mr. Brown’s s. 10(b) Charter rights.

SPIES J.

Date: March 31, 2015