CITATION: R. v. Chui, 2015 ONSC 552

COURT FILE NO.: 13-90000566-000

DATE: 20150128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

YIN LEONG CHUI

Defendant

Jason Mitschele and David Morlog, for the Crown

Glen Orr, for the Defendant

HEARD: January 5 and 6, 2015

APPLICATIONS RE ADMISSIBILITY OF UTTERANCES OF THE ACCUSED

REASONS FOR DECISION

CLARK J.:

INTRODUCTION

1On the morning of May 29, 2012, a fire broke out in a dwelling house situate at 5 Gordon Ave., in Scarborough. Arriving to fight it, firefighters found a clandestine methamphetamine laboratory. Since the accused was the lessee of the premises and the only person on site at the time, he was arrested. He now stands charged before this court with several drug offences and one count of arson by negligence.

2The Crown seeks to adduce evidence discovered as a consequence of the execution of several search warrants. One authorized the search of 5 Gordon Ave.; a second authorized the search of a car located in the driveway of the premises and believed to belong to the accused; a third authorized the search of a house in Mississauga, believed to be the accused’s residence. Counsel for the accused applied to have the fruits of those searches suppressed on the basis that the police breached the accused’s Charter rights in a variety of ways in the course of gathering their grounds for those warrants. On the first day of trial, Mr. Orr abandoned that application.

3The Crown applied to adduce a number of utterances the accused is alleged to have made to two police officers. Since counsel for the accused resisted the Crown’s application, on January 5, 2015, I conducted a voir dire to determine whether the utterances were voluntary. On January 6, in a brief oral pronouncement, I ruled that they were voluntary and admissible.

4For his part, the accused applied to have this court rule his utterances to be inadmissible as a consequence of what he alleged were breaches of his rights under sections 10(a) and (b) of the Canadian Charter of Rights and Freedoms (“the Charter”). On January 6, 2015, I conducted a voir dire to determine whether the accused’s rights had been breached and, if so, whether such breach(es) required exclusion of the utterances.

5On January 7, I ruled orally that there had been a breach of the implementational component of s. 10(b), but, inasmuch as it occurred after the utterances were made, the utterances were, nonetheless, admissible. In respect of both rulings, I indicated that I would provide further reasons as soon as time permitted; those reasons follow.

THE FACTS

6The fire at 5 Gordon Ave. was in the kitchen. A neighbour, Monica Sauer, reported it to 911. In response, the Toronto Fire Service (“TFS”) was first on the scene. Minutes later, at 8:06 a.m., P/C. Christina Boyd, of the Toronto Police Service (“TPS”) arrived.

7When Boyd arrived, she first spoke to Ms. Sauer, for what she estimated was about ten minutes. She did so on the sidewalk in front of 5 Gordon Ave. Throughout that time the accused was standing on the front porch of the house. Boyd estimated the accused to have been about 15 feet from where she was speaking to Sauer. At the time, the accused was clad only in his underwear and a T-shirt; he was covered in soot.

8After speaking to Sauer, Boyd motioned to the accused to come to where she was. She also said something to him to indicate that she wanted to speak to him, but could not recall what words she used. In response, the accused put on a pair of running shoes and came down off the porch to speak to her. Boyd could not say exactly when she began to speak to him, but, if her estimate as to how long she spoke to Sauer is accurate, it would have been about 8:16 a.m.

9The first thing Boyd asked the accused was his name. She did this, she said, because, when dealing with citizens in her professional capacity, she likes to know to whom she is speaking. In response to her inquiries, the accused gave Boyd certain biographical information, including his name, and his date and place of birth. He also told her that he rented the house at 5 Gordon Ave. and that he lived alone. In terms of the fire, the accused told Boyd that he had been cooking noodles, but left the kitchen for ten minutes and returned to find the kitchen ablaze.

10At one point during their encounter, a fire captain on scene approached Boyd and told her that there was approximately 20 gallons of camping fuel in a room adjacent to the kitchen. Thinking it “strange” for someone to keep that kind and amount of fuel in such close proximity to the kitchen, Boyd asked the accused about the fuel. He replied that he bought the fuel for a good price on the Internet and resold it at a profit. That prompted Boyd to ask if he had a licence to do so and, in addition, whether he declared the income he made from this activity. He indicated that he did not have a licence.

11A short time later, while Boyd was still speaking to the accused, the fire captain told her that his crew had found acetone in the house. Unlike his earlier mention of camping fuel, the captain did not mention what amount of acetone they had found. In response, with no question from Boyd, the accused spontaneously stated that the acetone belonged to his girlfriend, who, he said, was in the business of doing nails.

12At this point, Boyd had been a police officer for approximately one year. Although she had had relatively little experience with drugs, she said, she remembered enough from her police training that she thought that the presence of these chemicals might suggest that some illegal drug activity was ongoing at the location, but, being unsure, she telephoned her sergeant to see what he knew about the chemicals involved.

13At the same time, the accused told Boyd that he had a sore throat and some burns. Since there was an ambulance on scene, Boyd told him that he should seek attention from the ambulance personnel. The accused went to the ambulance, unaccompanied by Boyd, and was there for some time. Once they had finished dealing with the accused, ambulance personnel advised Boyd that the accused had some minor burns, but was refusing any further treatment.

14A short while later, by which time the TFS District Chief was on scene, Boyd said she was advised by TFS, although she did not say who among the fire personnel told her, that the fire crew had located a quantity of toluene and that they considered the house to be a clandestine methamphetamine laboratory. With that, at 8:46 a.m., Boyd arrested the accused for production of methamphetamine.

15As Boyd was handcuffing, P/C. Paul Jackson approached. He had arrived on the scene only minutes earlier and had had no contact with the accused to that point. Observing the accused being cuffed, and because Boyd was female and the accused male, Jackson decided that he should conduct the standard pat-down search incident to the arrest. He said he wanted to know whether the accused spoke English, so he asked him if he understood what was going on. According to Jackson, the accused responded, “Isn’t it obvious?” According to Boyd, the accused’s words were, “It’s kind of obvious isn’t it?” The disparity is understandable because the officers did not make their respective notes until some considerable time after the events.

16At 8:49 a.m., Boyd put the accused in the rear of her police car and, at 8:50 a.m., gave him the standard police caution and advised him of his right to counsel. The accused responded that he wanted to speak to a lawyer.

17Shortly afterward, Boyd took the accused to 42 Division, where he was booked into the station. Once the booking process was complete, she then lodged him in the Criminal Investigation Bureau (“CIB”) for investigation. She made no effort at that time to provide the accused with access to counsel.

18At 11:00 a.m., after the accused had been in the CIB for roughly one hour, Boyd was instructed to take the accused to Scarborough Centenary Hospital to have his injuries examined. At 11:47 a.m., after the accused had received some medical attention, Boyd and he left the hospital and returned to 42 Division, arriving at 11:52 a.m., whereupon the accused was booked into the station again.

19It was not until 1:30 p.m. that the accused was finally given the opportunity to speak to counsel.

DISCUSSION

Voluntariness

20Under the confessions rule, as it is presently configured, the court must consider not only whether an accused was threatened or any inducement was held out to him, but also whether he had an operating mind and made the statement in question in circumstances that were free from oppression. While I will examine these issues separately for the sake of explication, it is clear that each of these issues should not be addressed “as a discrete inquiry completely divorced from the rest of the confessions rule”: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, para. 63.

(i) Threats or Inducements

21Counsel for the accused did not suggest to P/C. Boyd or P/C. Jackson that they (or any other person in authority in their hearing or presence) made any threat or promise to the accused. Nonetheless, Mr. Orr suggested in oral argument that it is impossible to know whether anything said amounted to a threat or an inducement, because neither officer recorded exactly what s/he said to the accused, such that the court must be left with a reasonable doubt as to the voluntariness of the utterances attributed to the accused. I disagree.

22For a threat or an inducement by a person in authority to render an accused’s statement involuntary, it must be such that it could meaningfully be thought to have caused the accused to make the utterance he made: R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 14. As Watt J., as he then was, stated in R. v. Roy, [2002] O.J. No. 5541 (S.C.J.), at para. 240, aff’d, (2003), 2003 4272 (ON CA), 180 C.C.C. (3d) 298 (Ont. C.A.), “There must be some link, nexus, or connection between the police conduct and the decision to speak. Context is critical.” Thus, a threat or inducement, whether standing alone or in combination with other factors, will not vitiate a statement unless it is strong enough to raise a reasonable doubt that the subject’s will has been overborne: Spencer, at para. 13, citing Oickle, at para. 57.

23The officers indicated that they did not threaten the accused or offer him any inducement to cause him to make the various utterances he is alleged to have made and, as noted above, the accused does not suggest that either did. Although it would have been desirable had the officers taken verbatim notes of what they said to the accused and what he said in response, I can understand why they did not. Boyd only asked preliminary questions designed to gain some understanding of the situation and Jackson asked only one question directed toward ensuring that the accused understood what was transpiring. I am satisfied that I understand the gist of what each said to him. On the basis of what I find was said, I am satisfied beyond a reasonable doubt that nothing either officer said could have prompted the accused to feel either that he was obliged to make the utterances attributed to him or that it would be to his advantage to do so.

(ii) Oppression

24An utterance by an accused will be involuntary where it arises in a situation in which there is an air of oppression. But, for a statement to be involuntary on this ground, “the conduct of authorities [must be] so oppressive that the accused’s free will is effectively overborne, thereby sapping the will and strength of the interviewee to make an independent choice to speak or remain silent”: A.W. Bryant, S.N. Lederman & M.K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3rd ed. (Markham: LexisNexis Canada, 2009), at p. 448.

25In Oickle, at para. 60, Iacobucci J. enumerated a non-exhaustive list of factors that can give rise to an atmosphere of oppression, including “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.” Apart from the access to counsel issue, which occurred only after the utterances in question were made (and which I will address when I come to consider the alleged Charter breaches), nothing of that sort occurred here and Mr. Orr does not suggest that there was an air of oppression. On the contrary, he suggested to Boyd, and she agreed, that she was “polite but firm” with the accused.

26I am also mindful that the accused had the presence of mind to tell Boyd that he had a sore throat and to take advantage of her suggestion that he seek medical attention from the ambulance personnel on scene, which he promptly did, free from any control or oversight by Boyd. Those are not the actions of someone whose will has been overborne.

27I am satisfied beyond a reasonable doubt that there was no oppression that operated to cause the accused to make the utterances he made.

(iii) Operating mind

28To be voluntary, an accused’s statement must be the product of an operating mind. This implies no “higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment”: Oickle, para. 63, citing R. v. Whittle, 1994 55 (SCC), [1994] 2 S.C.R. 914, at p. 936, where Sopinka J. adopted Pratte J.’s statement in Horvath v. The Queen, 1979 16 (SCC), [1979] 2 S.C.R. 376, at p. 425, that “voluntariness implies an awareness of what is at stake in making a statement to a person in authority.”

29Both Boyd and Jackson were in full police uniform and I find as a fact that it was obvious to the accused that they were investigating the fire. The accused’s utterances were lucid and responsive, whether spontaneous (in response to things said by the fire captain in his presence) or in direct answer to the officers’ questions. Moreover, I find as a fact that the accused deliberately lied to Boyd about the camping fuel and the acetone to divert suspicion from himself.

30Thus, it is clear to me beyond any reasonable doubt that the accused was at all times in full possession of his faculties, knew that he was speaking to police officers, and knew that any statement he might make could be used to his detriment. I am, therefore, satisfied beyond a reasonable doubt that he had an operating mind.

(iv) Trickery

31There is no suggestion that either Boyd or Jackson employed any trickery to cause the accused to speak. Moreover, a trick will not render a statement involuntary unless (i) it involves a threat or an inducement (R. v. Robertson (1975), 1975 1436 (ON CA), 21 C.C.C. (2d) 385 (Ont. C.A.), at p. 417, leave to appeal ref’d, 21 C.C.C. (2d) 385n) or (ii) it is of such a nature as to shock the community: Oickle, at para. 67.

(v) Failure to record what was said

32Counsel for the accused argues that the utterances were not properly recorded, such that the court cannot be satisfied as to what was said by either the officers or the accused and, by extension, cannot be satisfied that the utterances were voluntary. I disagree.

33The failure of a police officer to record the statement of an accused verbatim is not necessarily fatal to the Crown proving the statement voluntary: R. v. Backhouse, 2005 4937 (ON CA), [2005] O.J. No. 754, 194 C.C.C. (3d) 1, at paras. 117-19; R. v. Narwal, [2009] B.C.J. No. 1941, 2009 BCCA 410, at paras. 36-39.

34This is not a case like R. v. Ferris, 1994 31 (SCC), [1994] 3 S.C.R. 756, where the utterance was so lacking in context that even relevance could not be established. Although the conversations were not recorded verbatim, I am satisfied that I have the full context and a good understanding of the substance of what was said.

35Nor is this a case like R. v. Moore-McFarlane, 2001 6363 (ON CA), [2001] O.J. No. 4646, 56 O.R. (3d) 737 (C.A.), where there was positive evidence that the officers had made threats and the officers had deliberately refrained from recording the statement, when it would have been not only feasible, but, indeed, easy to do so. Unlike the officers in Moore-McFarlane, Boyd did not have the technical wherewithal to record what was said electronically and, insofar as she was only making preliminary inquiries, it is not reasonable to expect her to have been prescient enough to realize that she ought to be recording verbatim her initial exchanges with the accused. See R. v. Simpenzwe, [2009] A.J. No. 1536, 2009 ABQB 579, at para. 33, where, in similar circumstances, the argument Mr. Orr advances on this behalf was rejected.

36While, with the benefit of hindsight, it would have been helpful if she had recorded what was said, I have enough of a record to be fully satisfied that there was no untoward conduct by either Boyd or Jackson that would vitiate the voluntariness of any of the accused’s utterances. In summary, then, I am of the view “[t]his … is not a case where there [are] reasons to believe that the failure to record the statements was suspect”: Backhouse, at para. 118.

(vi) Failure to caution the accused

37The accused also argues that his utterances are not voluntary because Boyd failed to caution him when she knew she was investigating him for suspected criminal activity.

38In R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 32, Charron J., speaking for the majority, adopted as “a useful yardstick for the police on when they should caution a suspect” the following passage from René Marin, Admissibility of Statements (9th ed. (loose-leaf)), at pp. 2-24.2 and 2-24.3:

The warning should be given when there are reasonable grounds to suspect that the person being interviewed has committed an offence. An easy yardstick to determine when the warning should be given is for a police officer to consider the question of what he or she would do if the person attempted to leave the questioning room or leave the presence of the officer where a communication or exchange is taking place. If the answer is arrest (or detain) the person, then the warning should be given.

39It is generally accepted that the police are not required to caution a person with whom they speak unless they suspect the person of criminal activity, but the need to caution a person must be based on more than “mere speculation…or…even…reliable information that may warrant further inquiry”: R. v. A.D., [2003] O.J. No. 4901 (S.C.J.), at para 75. Further, in deciding whether, in a given instance, the police ought to consider an accused to be a suspect, and, thus, ought to caution him, the court should not be overly expansive because “[t]o cast the net wider than this is to overemphasize an individual’s right to silence at the cost of stifling legitimate police investigation”: R. v. Carroll, [2009] O.J. No. 3993, 71 C.R. (6th) 169 (S.C.J.), at para. 72.

40In this case, although Boyd candidly acknowledged that she would not have allowed the accused to leave until she had completed her questioning, and although she says that she felt that she had reasonable and probable grounds to arrest the accused as of the point at which she came to know that there was both camping fuel and acetone in the premises, I am of the view that, objectively viewed, she did not have reasonable and probable grounds until she was later told by the fire captain that he suspected the premises was a clandestine methamphetamine laboratory. I say that because the captain imparted his suspicion to Boyd at the same time he advised her of the presence of the toluene. That was some time after he had told her of the acetone. Presumably, inasmuch as the production of methamphetamine is obviously a criminal activity, I presume that the captain would have advised Boyd of his suspicions immediately. Therefore, I infer that the firefighters did not conclude until some point after they found the acetone that they were dealing with a clandestine laboratory. If they did not know prior to that, then, objectively viewed, I see no reason why Boyd ought to have suspected the accused of being engaged in criminal activity strongly enough to warrant cautioning him until she was advised by the captain of his suspicions.

41Moreover, even if Boyd ought to have cautioned the accused when she earlier heard of the presence of acetone, it is noteworthy that the accused made his utterance concerning the acetone, not in response to a question by Boyd, but, rather, spontaneously, in response to what he heard the fire captain tell Boyd. It is also important to remember that, apart from the accused’s utterance to Jackson, everything else he said, upon which the Crown now seeks to rely, preceded Boyd being told about the presence of the acetone.

42Further, I am convinced that the accused wanted to say what he said to Boyd in order to influence the course of her investigation, by, as I have earlier said, diverting suspicion from himself: R. v. Buchanan, 2006 6200 (ON SC), [2006] O.J. No. 814, 38 C.R. (6th) 330 (S.C.J.), at para. 40; R. v. Hamadeh, [2011] O.J. No. 819, 2011 ONSC 1241, at paras. 69 and 70.

43In R. v. Boudreau, 1949 26 (SCC), [1949] S.C.R. 262, the Supreme Court of Canada held that a statement to a person in authority is not inadmissible solely by reason of the failure to give a caution, but, rather, that the issue is whether the statement was freely and voluntarily made, and the presence or absence of a caution is merely one circumstance the court must consider in making that determination. See also R. v. Esposito (1985), 1985 118 (ON CA), 53 O.R. (2d) 356 (C.A.), where the absence of the standard police caution, while certainly a factor, and sometimes an important one, was held not to be decisive on the issue of voluntariness. See also Singh, at para. 31, where Esposito is referred to with approval. Likewise, in R. v. K.P.L.F., 2010 NSCA 45, 290 N.S.R. (2d) 387, at para. 38, MacDonald C.J.N.S., speaking for the court, stated that “the issue of the caution should not be elevated to such an extent as to exclude a proper consideration of all of the relevant factors.”

44In this case, I am satisfied that the failure to caution the accused before he made the impugned utterances ought not to render them involuntary.

(vi) Summary on voluntariness

45In summary, then, having examined the various factors that can render an utterance involuntary, I remind myself that they should be considered together, “as just one application of the general rule that involuntary confessions are inadmissible”: Oickle, para. 64, citing R. v. Horvath, 1979 16 (SCC), [1979] 2 S.C.R. 376, at p. 408. Thus, in all the circumstances, as I indicated on January 6, I am satisfied beyond a reasonable doubt that this accused’s utterances were in all senses freely and voluntarily made.

Alleged Charter Breaches

46The accused alleged several Charter breaches on the part of the officers.

Section 10(b)

A. Informational Component

(i) The utterances to Boyd

47The accused argues that he was detained from the outset of his encounter with P/C. Boyd and, as such, was entitled to be advised of his right to counsel and afforded an opportunity to exercise it without delay. As noted above, the accused was not advised of his right to counsel until after he was placed under arrest and was not afforded an opportunity to exercise that right until he had been in custody for many hours.

48It is trite to observe that the obligation to advise a person that of his right to counsel only arises upon arrest or detention. Obviously, once arrested, the accused was detained, but, since, except for the utterance to Jackson, which I will consider below, all other utterances preceded his arrest, the question I must resolve is when the accused first came to be detained. In R. v. Suberu, 2009 SCC 33, at para. 5, a majority of the Supreme Court of Canada held:

Even when an encounter clearly results in a detention, for example when the person is ultimately arrested and taken in police custody, it cannot simply be assumed that there was a detention from the beginning of the interaction. Given the immediacy of the s. 10(b) obligation to inform a detainee of his or her right to counsel, it is important to determine if and when an encounter between the police and an individual effectively crystallizes in a detention. It will depend on the circumstances.

As stated in Simpenzwe, at para. 20, “there is no bright line that tells us whether there is a detention.”

49It is not disputed that the accused was not physically detained prior to his arrest. Boyd never touched him until she placed him under arrest, quite some time after he made the utterances in question, and he was under no legal obligation to comply with Boyd’s indication that she wanted to speak to him: Suberu, at para. 26. That, of course, begs the question of whether he was psychologically detained.

50In Suberu, at para. 28, the majority held that “[t]he onus is on the applicant to show that in the circumstances he or she was effectively deprived of his or her liberty of choice.” The accused did not testify on this voir dire, but, since the test for detention is objective, “the failure of the [accused] to testify as to his…perceptions of the encounter is not fatal to the application.” That said, the contention that the police conduct effected “a significant deprivation of his… liberty must find support in the evidence”: Suberu, at para. 28.

51As noted above, the accused argues that Boyd was obliged to advise him of his right to counsel immediately upon striking up a conversation with him because he was effectively detained as of that point. That is so, he contends, because, by her own admission, Boyd considered him a suspect from the outset of their interaction.

52To decide whether Boyd had effectively created a situation of psychological detention prior to arresting the accused, it is useful to compare the circumstances in Suberu to the facts as I find them in this case.

53In Suberu, P/C. Roughley knew as he responded to the radio call, and before he had even arrived on scene, that criminal activity was suspected, to wit: that someone had tried to use a stolen credit card in a Liquor Control Board of Ontario (“LCBO”) outlet. In this case, when first advised by radio, Boyd knew only that there was a fire at 5 Gordon Ave. As far as she was aware at that point, there was no suggestion of any criminal activity being connected to, much less responsible for, the fire.

54Shortly after Roughley arrived, and in response to Suberu speaking to him as he (Suberu) left the LCBO, Roughley followed him outside. As Suberu was getting into the driver’s seat of a mini-van, Roughley said, “Wait a minute. I need to talk to you before you go anywhere.” In this case, while Boyd acknowledges that she both beckoned to the accused and said words to the effect that she wanted to speak to him, in contrast to Suberu, she did not say anything that, objectively viewed, would have indicated to him that he was not free to leave. Although defence counsel placed great emphasis on Boyd’s evidence that she would not have allowed the accused to leave had he endeavoured to do so, it must be remembered that the relevant state of mind is that of the accused, not the officer (expect to the limited extent that, objectively viewed, the officer’s state of mind might suggest that the accused was likely of the same mind). Moreover, there is no indication that the accused wanted to leave. After all, as noted above, firefighters were putting out a fire in his house and he was clad only in his underwear.

55Although Boyd did not record it verbatim, I find as a fact, based on Boyd’s rendition of her conversation with the accused, that the number of questions Roughley initially asked Suberu exceeded the number Boyd put to this accused.

56In the midst of asking questions of Suberu, Roughley received further information by radio concerning the use of a stolen credit card at another LCBO earlier that day, including the fact that two men were involved in that incident and the licence plate number and a description of the van the men were in. That description matched the van and the two men Roughley was dealing with. Armed with that information, Roughley went on to ask Suberu for his identification and for ownership documents pertaining to the van. Only when he looked inside the van and saw LCBO bags did Roughley consider that he had reasonable and probable grounds to arrest Suberu.

57Comparing Suberu to this case, to the extent that one can usefully compare the different facts, in my opinion, up until the point of arrest, Boyd had considerably less indication than Roughley had that a crime had been committed and that the person being dealt with was involved in it. Like Roughley, Boyd received information from a third party as her contact with the person with whom she was engaged was ongoing, namely, from the fire captain concerning the presence of chemicals in the house. In assessing whether that additional information ought to have alerted her to the likelihood that a crime had been, or was being, committed and the concomitant need to detain the accused in relation to that crime, I am mindful of her evidence that she had relatively little police experience at the time and no investigative experience, or at least none to speak of, in relation to drug offences. Against that backdrop, I accept that Boyd did not immediately draw an inference that the chemicals were being used to commit one or more offences under the Controlled Drugs and Substances Act (“CDSA”). Indeed, although she found it “odd” that the accused would have these chemicals in his house, she was sufficiently unsure about the implications of such chemicals being present that she felt the need to telephone her sergeant to get some guidance. As I have earlier mentioned, the time at which the fire captain advised her of his suspicions is also of some moment in this analysis. Further, it must be remembered that the accused was giving her exculpatory explanations for the presence of two of the chemicals. Viewing the circumstances objectively, it is not reasonable to expect that Boyd ought to have known that criminal activity was ongoing any earlier than she came to realize that fact.

58Moreover, it is important to remember that even “where the police believe a crime has recently been committed, the police may engage in preliminary questioning of bystanders without giving rise to a detention under ss. 9 and 10 of the Charter”: Suberu, at para. 28.

59On the evidence before me, I find that, like Roughley in his encounter with Suberu, in her initial interaction with the accused, Boyd “engaged [the accused] in an attempt to orient [herself] to the situation as it was unfolding in front of [her]”: Suberu, at para. 32.

60I say that because, albeit Boyd said she would not have let him leave, I find that she said and did nothing to convey that state of mind to the accused and, quite apart from her actions, there is nothing else about the situation that, to my mind, would suggest that the accused felt that he was not free to leave.

61Assuming, for the moment, a law abiding householder, I doubt that someone whose house was on fire would be inclined to want to leave the scene while the fire personnel were still dealing with the fire. The natural inclination would be, it seems to me, to remain on scene so as to know the extent of the damage to one’s property. That is of some import in terms of deciding whether Boyd had any reason to think that the accused might have wanted to leave and, by extension, whether anything she was doing would have made him feel that he could not leave. In other words, until she made up her mind that something criminal was afoot, she had no reason to think that the accused was anything other than a law abiding resident of 5 Gordon Ave.

62It also cannot be forgotten that the accused was in his underwear and wearing no shoes when Boyd arrived. I very much doubt that, clad in this fashion, the accused would have been inclined to leave, at least not without first getting dressed, and that was not feasible by virtue of the fact that he was excluded, quite understandably, from the house by the fact that the firefighters were busy trying to deal with the fire. Any reticence the accused would have had in that regard was not the product of anything Boyd did.

63In the result, I find no breach of s. 10(b) was occasioned by Boyd’s failure to advise the accused earlier than the point of arrest.

(ii) Utterance to Jackson

64As noted above, when P/C. Jackson conducted a field search of the accused, he asked him if he understood what was going on. He did this, he said, to satisfy himself that the accused spoke and understood English. Obviously, the accused was detained at this point and, just as obviously, he was entitled to be advised of his right to counsel without delay. Having said this, I conclude that Jackson’s question was not such as to amount to a breach of s. 10(b).

65The law requires the police to hold off from questioning a detainee about an offence until he has had a reasonable opportunity to consult counsel: R. v. Manninen, 1987 67 (SCC), [1987] 1 S.C.R. 1233, at p. 1242-43. That does not mean, however, that the police are forbidden to ask any questions of an accused person before he has had an opportunity to consult counsel.

66In R. v. Sinclair, 2003 BCSC 2040, [2003] B.C.J. No. 3258, aff’d 2008 BCCA 127, 169 C.R.R. (2d) 232, aff’d 2010 SCC 35, 259 C.C.C. (3d) 443, it was held that the police did not breach the accused’s s. 10(b) rights when, after arrest but before he had an opportunity to speak to counsel, they asked him certain questions concerning what he wanted done with his personal effects.

67Similarly, in R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68, immediately after being arrested on a firearms offence and advised of his right to counsel, the accused asked to speak to his lawyer “right now.” Before being afforded that opportunity, the accused was asked questions upon being booked and, again, in an interview room. All questions were directed to acquiring background, processing information. When the accused brought an application to exclude some of his answers to those questions at trial, Code J. held, at para. 81:

I am satisfied that if Sgt. Schoch was merely asking the accused for background information for the Record of Arrest, such as his date of birth, address, phone number, height and weight, and was taking note of his clothing and any identifying features, this would not constitute “eliciting evidence from the detainee” or “calling upon the detainee to provide evidence”. Indeed, the routine booking process when the accused first enters the station, involves similar kinds of questions that have no evidentiary value in relation to the charges against the accused...

68In R. v. Dupe, [2010] O.J. No. 5757, 2010 ONSC 6594, the accused was under arrest for murder. Upon being booked into the police station, the accused was asked about his health to determine if he needed medical attention. The Crown sought to adduce some of his answers in evidence at his trial. Relying, in part, on Sinclair and Learning, Dambrot J. held, at para. 24:

[I]t seems clear that Lamer J. did not intend, in Manninen, to oblige the authorities to stop all questioning of the accused while he or she is given the opportunity to consult counsel. The use of the words “cease questioning or otherwise attempting to elicit evidence” to describe the requirement to hold off sheds light on the sort of questioning that is prohibited - questioning intended to elicit evidence, sometimes referred to as investigative questioning. Questioning to assist the accused to exercise his rights, preserve his property, provide care for his family, or protect his health and safety or the health and safety of others, just to name the most obvious examples, are not prohibited by the language in Manninen. Nor should they be. Prohibiting such questions would not enhance the purpose of s. 10(b). An accused does not require the advice of counsel to assist him or her in determining how to answer such questions, while the best interests of not only the accused but those around him demand that they be asked. An accused only requires the advice of counsel to assist him or her in determining how to answer questions designed to elicit incriminatory evidence, or at least to elicit evidence relating to the offence under investigation.

69In this case, I find that Jackson put his question to the accused with a genuine interest in finding out if he spoke English and to ensure that the accused had some understanding of what was taking place. I find that it was in the best interests of the accused for Jackson to ask that question and nothing he said can be sensibly understood as an attempt to elicit evidence. The fact that the accused gave what, arguably at least, can be considered to be a highly incriminatory answer was not the result of anything the officer did.

70In the result, I find no breach of the informational component of the accused’s s. 10(b) right in anything done by either officer.

B. Implementational Component

71While I have found no breach of the informational component of s. 10(b), the same cannot be said for the implementational component.

72As mentioned above, the accused was not given the opportunity to speak to as lawyer for almost five hours. The accused was in the police station for something on the order of one hour before he was taken to the hospital. He was not given an opportunity to speak to counsel during that period. Boyd’s only explanation was that she was busy preparing paperwork, such as the Record of Arrest. In my view, there was ample time between the time the accused was booked into the station and the time Boyd was ordered to take him to the hospital to afford him the opportunity to speak with counsel. Although I have no doubt that Boyd was busy, her other commitments do not trump the accused’s right to counsel. I find, therefore, that the failure to provide the accused with an opportunity to speak to counsel during this time amounted to a breach of the implementational component of s. 10(b) of the Charter.

73Further, after attending the hospital, the accused was back at 42 Division by approximately noon, yet he was not given the chance to speak to counsel until 1:30 p.m. The further hour and a half I find to have been a continuing breach of the implementational requirement of the accused’s s. 10(b) right.

74In the aggregate, then, even deducting the period of slightly less than an hour that Boyd was engaged in taking the accused to the hospital, that still leaves roughly four hours between the time the accused was arrested and the time he was afforded his right to speak to counsel. This is unacceptable on any standard.

C. Section 24(2)

75Having found a breach of the implementational component of s. 10(b), I must now decide whether the accused’s utterances ought to be excluded. Following R. v. Grant, 2009 SCC 32; 245 C.C.C. (3d) 1, at para. 71, I must consider:

(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.

(a) Seriousness of the State Conduct

76Dealing first with the seriousness of the Charter-infringing state conduct, “the greater the level of state misconduct, the greater will be the need of the courts to disassociate themselves from that conduct. Wilful or reckless disregard for Charter rights will, therefore, tend to support exclusion”: R. v. Reddy, 2010 BCCA 11, 251 C.C.C. (3d) 151, at para 92.

77In terms of s. 10(b) of the Charter, an arresting officer is under a constitutional obligation to facilitate access to a lawyer, if requested by the arrested party, “at the first reasonably available opportunity”: R. v. Taylor, 2014 SCC 50, 311 C.C.C. (3d) 285, at para. 24.

78In this case, the failure of the police to afford the accused the opportunity to contact counsel shortly after he had been booked into the station the first time was both unnecessary and unacceptable. The further, continuing breach when, having been brought back from the hospital, the accused was booked in to the station a second time, is even harder to fathom. The authorities, even an officer as relatively inexperienced as Boyd, are expected to be conversant with Charter rights and are meant to facilitate the exercise of those rights by persons whose liberty they have seen fit to suspend by either detaining or arresting them. The combination of the length of time during which the accused was deprived of an opportunity to exercise this right and the lack of any proper reason for that deprivation is serious, in my view, and, standing alone, favours exclusion of the evidence.

(b) Impact on the Charter-protected Rights of the Accused

79Turing to the impact of the breach on the Charter-protected interests of the accused, this head of inquiry “calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed”: Grant, at para. 76. “The impact of a Charter breach may range from fleeting and technical to profoundly intrusive”: ibid.

80On the one hand, there was nothing intrusive about the breach in this case and, while certainly not fleeting, I consider the breach to be “technical”. I say that because, since it postdates the utterances in question, there is no causal link between it and the accused having made the utterances and, further, because the authorities made no effort to elicit evidence from the accused during the time the breach was ongoing. On the other hand, the impact on the Charter protected right of the accused was not insignificant in the sense that he ought to have been able to exercise his right long before he was able to do so.

81That said, since all the accused’s utterances were made before the breach, the subsequent Charter breach has no impact on the fairness of the accused’s trial. In saying that, I appreciate, of course, that a Charter breach need not be causally connected to the gathering of evidence to warrant its exclusion. Sometimes a temporal connection will suffice (R v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21), but that is not to say that evidence will be excluded simply because there is a temporal connection between the breach and the gathering of evidence: R. v. Strachan (1988), 1988 25 (SCC), 46 C.C.C. (3d) 479 (S.C.C.). Temporality between a Charter breach and the obtaining of evidence is almost exclusively considered in relation to evidence gathered after a breach and, even at that, evidence is generally not excluded where the temporal link is too remote. Thus, a fortiori, where evidence is gathered before a Charter breach, it is difficult to see why it ought to be excluded simply because there is a temporal connection. That said, the temporal connection between the utterances in this case and the subsequent Charter breach does not militate toward their exclusion.

(c) Society's Interest in Adjudication on the Merits

82At the risk of stating the obvious, this case involves very serious charges. Methamphetamine is a pernicious, highly addictive drug, known to cause grave harm to those unfortunate enough to become addicted to it. Further, the facts underlying the charge of arson are extremely serious. This was a residential area. The amount of highly flammable and highly toxic chemicals at 5 Gordon Ave. was such that, but for the timely intercession of TFS, there could have been a conflagration of significant proportions that might well have affected not only that premises, but much of the surrounding area.

(d) Balancing the Interests

83In balancing the aforementioned interests, I am not persuaded that the admission of the impugned utterances might tend to put the administration of justice into disrepute. On the contrary, I am firmly of the opinion that “the truth seeking function of the criminal trial process would be better served by admission of the evidence [than] by its exclusion” (Grant, at para. 79).

RESULT

84It was for the foregoing reasons, that I ruled that the Crown could adduce the utterances of the accused at his trial.

R. A. Clark J.

Released: January 28, 2015

CITATION: R. v. Chui, 2015 ONSC 552