COURT FILE NO.: 2533/14

DATE: 20150929

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

- and -

MATTHEW DYKSTRA

Erin Winocur, for the Crown

Alan D. Gold and Melanie J. Webb,

for the accused

HEARD: April 13-16, 2015

K.L. Campbell J.

Pre-Trial Ruling: Statement Admissibility

A. Introduction

[1] The accused, Matthew Dykstra, is charged with one count of aggravated assault by wounding, contrary to s. 268 of the Criminal Code, R.S.C 1985, c. C-46, as a result of an incident that took place on Queen Street in Toronto in the early morning hours of Sunday, September 9, 2012. The complainant is Joseph Carrig.

[2] Essentially, the Crown alleges that the accused stabbed the complainant with a knife during the course of a violent interaction between the two men. The incident apparently arose as a result of some kind of dispute over the affections of the accused’s girlfriend after they left a nearby club that they had all attended earlier in the evening. The accused contends that he acted lawfully in self-defence.

[3] The accused was arrested by four members of the Toronto Police Service (TPS) later that same morning at a downtown Toronto apartment where he and his girlfriend were temporarily staying. Immediately after his arrest, the accused made an oral statement providing the police with his version of the critical events that form the basis of the charge of aggravated assault. The Crown seeks to tender this statement by the accused as evidence at trial.

[4] The accused contends that the statement is inadmissible. The accused argues that the statement was not made voluntarily. Further, the accused argues that, in any event, the statement should be excluded from evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms on the basis that prior to the accused making this statement, the police violated his constitutional rights guaranteed by ss. 10(a) and (b) of the Charter. The Crown, on the other hand, argues that the statement was made voluntarily and spontaneously by the accused. Further, while conceding that there was a violation of s. 10(a) of the Charter, the Crown argues that there was no violation of the accused’s rights under s. 10(b) of the Charter, and that the statement should be admitted in any event under s. 24(2) of the Charter.

[5] After hearing the submissions of counsel at the conclusion of the evidentiary voir dire conducted to determine the admissibility of the statement, I advised the parties that the statement was admissible. I indicated that I would subsequently provide reasons in support of this conclusion. These are those reasons.

B. The Relevant Facts

1. Introduction

[6] The evidentiary voir dire to determine the admissibility of this evidence was conducted in a blended fashion. All of the evidence relevant to the voluntariness of the statement was led by the parties, as well as all of the evidence touching upon the alleged Charter violations on the part of the police. All four of the police officers involved in the arrest of the accused testified on the voir dire proceedings. The accused did not testify, nor was any further evidence called on his behalf.

[7] Without reviewing in detail all of the evidence that was adduced on the voir dire, I find the relevant facts to be as follows.

[8] This factual recitation relies heavily upon the viva voce testimony of Det. Pravica, which I accept as generally reliable and accurate. Det. Pravica was the most experienced police officer of the team of officers involved in the arrest. He was also the officer who was primarily responsible for the investigation in this case and he dealt with the accused most directly. Perhaps not surprisingly, Det. Pravica’s memory of the important events was the most detailed and, in my view, the most reliable. Further, he made the most detailed notes of the important events regarding the circumstances surrounding the arrest of the accused, and he made his notes approximately 60 to 90 minutes after the arrest of the accused. The other three police officers that testified were involved in the investigation more tangentially, and their respective memories were, in my view, somewhat less detailed and reliable, as were their handwritten notes of the key events.

2. The Background Facts – The Initial Police Investigation

[9] When his shift started at 6:00 a.m. on September 9, 2012, Det. Pravica was assigned to investigate a “stabbing” that took place on Queen Street West between Bathurst Street and Spadina Avenue in Toronto earlier that morning. The officer was provided with a “bare bones” account of what allegedly transpired from a couple of witnesses and the accused’s girlfriend, Marie Eve Turgeon. Det. Pravica also knew that the complainant was at the hospital undergoing surgery as a result of having suffered some serious stab wounds. Ms. Turgeon indicated that there was a “fight,” but she had no recollection of any stabbing.

[10] Det. Pravica was ultimately provided with a physical description of the accused, his name, approximate age and the specific municipal address of the apartment location where the accused and his girlfriend were staying that weekend in the Distillery District of the city.

[11] Det. Pravica attended, together with his partner, Cst. Muir, at an apartment building located on Parliament Street in Toronto. Both Det. Pravica and Cst. Muir were dressed in “plain clothes.” Ms. Turgeon was driven to that same location by a uniformed officer, Cst. Mohamed, who was also a 14 Division officer. As the apartment building was in the territorial jurisdiction of 51 Division, Det. Pravica sought the assistance of two uniformed officers from that Division. As such, Cst. Lee and Cst. Attoe also attended at the location of the apartment building. They arrived at this location at approximately 9:22 a.m.

[12] Ms. Turgeon advised the officers as to the specific unit of the apartment building where they stayed that weekend. She also provided the police with a physical description of her boyfriend, the accused. The description the police were working with at the time was that the accused was a white male, five feet, nine inches tall, 30 to 40 years old, with a shaved head, but with a tuft of hair at the front of his head and wearing black “goth-like” leather or vinyl clothing.

[13] The police attended at this apartment for the purpose of arresting the accused. They also wanted to check on his physical well-being, secure any knife or sharp-edged object that might have been used in any stabbing and prevent any potential flight (the accused and Ms. Turgeon were both visiting from Montreal). But certainly one of their main reasons for attending at this apartment building was to try to effect the arrest of the accused. Det. Pravica explained that, in his view, he had the necessary reasonable and probable grounds to arrest the suspect, Matthew Dystra and, if he found the suspect in the apartment unit, he was going to be arrested for aggravated assault.

3. The Entry of the Apartment Unit by the Police

[14] Four police officers, namely Det. Pravica, Cst. Muir, Cst. Lee and Cst. Attoe, entered the apartment building and went up to the specified apartment on the fifth floor of the building. Upon their arrival, the police could hear a male and a female engaged in conversation inside the unit.

[15] Det. Pravica then knocked on the apartment door, and waited for someone to answer. The apartment door then swung open automatically by some electronic/mechanical means. A female voice was heard asking who was at the door, and Det. Pravica announced that they were the “Toronto Police,” and asked if they could come inside. The female voice then invited them inside the apartment. Det. Pravica and Cst. Muir entered first, and then Cst. Lee and Attoe followed them inside thereafter. When they entered the apartment, the police saw an elderly female sitting in a motorized wheel chair at the end of a hallway by the kitchen area of the apartment. When Det. Pravica asked her if she was alone, she appeared to turn to her right to acknowledge someone else in the kitchen area.

4. The Initial Police Interaction With the Accused in the Kitchen

[16] When Det. Pravica got to the end of the hallway, he turned to where the elderly female had been looking, and he saw the accused seated at a small kitchen table. The accused fit the general physical description of the suspect that they were looking for in relation to the alleged stabbing, in that he matched the height, weight, age and general physical appearance of the suspect, including the fact that he had a “handlebar” style moustache. Indeed, Det. Pravica believed that the accused was Matthew Dykstra, the suspect they were looking for.

[17] Det. Pravica then asked the accused, “Are you Matthew?” The accused responded “yes.” Det. Pravica then asked the accused: “Do you know why we’re here?” In response, the accused nodded and replied “yes.” Det. Pravica testified that this brief exchange was not part of any investigative plan, but was “just the way it happened.” He denied that this questioning was designed to get the accused to make an incriminating statement.

[18] At that point, the accused stood up and asked the police if they could “take the conversation out into the hallway,” and Det. Pravica agreed. It appeared that the accused did not want to continue the interaction in the presence of the elderly female. Det. Pravica afforded him that courtesy. Det. Pravica explained that the accused was polite and cooperative and displayed no signs of aggression, so he decided to give him the courtesy of arresting him in the hallway. Had the accused not asked to go into the hallway, however, Det. Pravica agreed that he would have immediately arrested the accused in the kitchen.

5. The Pat-Down Search of the Accused in the Kitchen

[19] At that point, Cst. Muir gave the accused a “quick and cursory” pat down search to ensure that he was not in possession of any sharp-edged objects or other weapons. As Cst. Muir explained, this was an “officer safety” search for weapons given that the accused was alleged to have stabbed the complainant earlier in the morning.

[20] As part of this search, Cst. Muir also briefly removed the baseball cap that the accused was wearing. At that point, Det. Pravica saw a tuft of hair toward the front of the accused’s otherwise shaved head, which matched the description of the suspect that had been provided. This observation “solidified” the earlier opinion of Det. Pravica that the accused was the suspect they were looking for.

[21] As they walked toward the doorway, the accused asked permission to put on some shoes, and Det. Pravica agreed.

6. The Arrest of the Accused in the Hallway – His Oral Statement to the Police

[22] Once the four officers and the accused were in the hallway outside the apartment unit, Det. Pravica immediately arrested him. In carrying out the arrest, Det. Pravica placed his hand on the accused’s shoulder to take physical control of him and told him that he was under arrest for “aggravated assault.” One of the uniformed officers then handcuffed the accused behind his back. This took place at approximately 9:30 a.m.

[23] Det. Pravica then informed the accused of his right to counsel, by reading the following from the back of his police memo book:

It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for assistance. 1-800-265-0451 is the number that will put you in contact with a legal aid duty counsel for free legal advice right now.

[24] Det. Pravica then said: “Do you understand?” The accused responded “yes.” The officer then asked the accused, “Do you wish to call a lawyer now?” The accused replied, “no, not right now.”

[25] The evidence from the police officers varied considerably on the question of the precise answer provided by the accused to the question “Do you wish to call a lawyer now?” Det. Pravica testified that the accused responded “no, not right now.” Cst. Muir testified that the accused “acknowledged the fact that he did want to speak with a lawyer, just not at that particular time.” Cst. Muir could not recall precisely the language used, but testified that his recollection was a “paraphrasing” of the response by the accused. Cst. Lee testified that after Det. Pravica provided the accused with his rights to counsel, and cautioned him in relation to giving statements to the police, the accused “declined to speak with a lawyer despite given the caution.” Det. Lee could not recall exactly the words used by the accused in declining to speak with a lawyer. Cst. Attoe testified that the accused was cautioned about providing statements to the police and then, after expressing his understanding of the caution, was asked whether he had anything to say, at which point, the accused proceeded to “tell the story.” Cst. Attoe did not recall whether the accused was advised of his right to counsel. I accept the testimony of Det. Pravica on this issue as the most accurate and reliable evidence on this topic and find as a fact that the accused said “no, not right now” in response to the question.

[26] Det. Pravica explained that he understood this response to mean that the accused did not require a lawyer and did not want to speak to a lawyer at that time. It meant that the accused “might want to speak to a lawyer at some point, but not right now.”

[27] Det. Pravica then advised the accused more informally of his “options” in relation to a lawyer. More specifically, the officer advised the accused that he could consult “his own lawyer or duty counsel, whichever he chooses.” The officer also advised the accused that if he wished, he could at any point provide the officer with his own version of events. Det. Pravica advised the accused that he would have “ample opportunity” to tell his side of the story.

[28] Det. Pravica then started to caution the accused about making any statements to the police, using the standard form of caution from his police memo book. More particularly, the officer advised the accused that he was “charged with aggravated assault,” and asked him whether he “wished to say anything in answer to the charge.”

[29] At that point, the accused immediately began to explain his version of the events as to what happened between him and the complainant. The accused indicated that he and his girlfriend had been out at the Bovine Sex Club, and that she met a guy at the bar. They were there for a few drinks. At one point, she told the other male that she was living with the accused, her boyfriend. The accused said that he and his girlfriend then left the club, and walked east along Queen Street, on the north side of the street. He indicated that they walked for quite a few blocks. The accused said that his girlfriend was “visibly distraught.” She thought she may have done something wrong. The accused indicated that they stopped to talk, and she sat down. The accused told her that it was okay, and that she had done nothing wrong. The accused said that, at that point, he looked over and saw the same male from the bar, and believed that he must have followed them. According to the accused, the male appeared to be hiding, or “tucking” himself behind a corner. The accused said that he called the male over to tell her that it was okay and, as soon as he did, the male “kicked [him] in the head.”

[30] At that point, Det. Pravica realized that he had not actually “cautioned” the accused about the legal consequences of making statements to the police, and he believed that the accused was, perhaps, about to say something incriminating. Accordingly, Det. Pravica intervened and stopped him from continuing with his version of events. The officer told him to “stop” as he had something he had to read to him. He asked the accused to listen and “hear him out.” Det. Pravica then read the accused the full caution about making statements to the police, including advising the accused: “You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence.” In response, the accused said: “No, its fine, I’ll talk. It’s all going to come out eventually anyway.” Det. Pravica explained that he understood the accused to mean that he understood the “caution” he had heard, and that he wanted to “continue talking” to the police and “explain his version of what happened.”

[31] The accused then continued to provide his narrative of the relevant events. The accused indicated that right after the male kicked him in the head, he did not know what was going on. He was afraid and he panicked. He did not know if the male was going to hurt him or his girlfriend, so he responded instinctively, pulled out his knife and stabbed the male twice. The accused then said that, after this incident, he and his girlfriend left the scene in a cab.

[32] When Det. Pravica asked about the location of the knife, the accused said that he “threw it away.” When Det. Pravica asked “where,” the accused replied: “Sometime after I got out of the first cab, I don’t remember, I just threw it away.”

[33] When Det. Pravica then suggested to the accused that the clothes he was wearing were not the clothes that he had on “last night,” and asked him about the location of the clothes he had been wearing. The accused indicated that those clothes were in his “bags” in the room where he was staying.

[34] At some point during their discussions, the accused asked if he could “grab a sweater,” and Det. Pravica indicated that he could bring one with him to the police station, but he could not guarantee that he would be able to wear it given the rules about how many layers of clothing could be worn.

7. Transporting the Accused Back to the 14 Division Police Station

[35] At the conclusion of their interaction, Det. Pravica instructed the two uniformed officers to transport the accused to the 14 Division station.

[36] At 9:35 a.m., after Cst. Lee left the apartment building with the accused, and returned to the police car, Cst. Lee again advised the accused of his right to counsel. In so doing, Cst. Lee used the standard right to counsel advice included at the back of his police memo book. When Cst. Lee asked the accused if he understood his rights to counsel, the accused replied “yes.” Cst. Lee then asked the accused, “do you wish to call a lawyer now,” and the accused replied “yes.” Cst. Lee then asked the accused if he had a lawyer, and the accused replied “I would like a phone call to get a lawyer.” When Cst. Lee asked him for the phone number of the lawyer, the accused provided him with “seven digits,” but he was unable to recall the exact phone number. Cst. Lee suggested that he might call “duty counsel” in the meantime, and the accused agreed. The accused was then placed in the rear seat of the police car.

[37] Subsequently, while they were en route back to the police station, the accused asked to see a phone key pad so that he could actually see the numbers on a standard phone pad. Subsequently, the accused provided Cst. Lee with a phone number for his mother in Seattle, so that she could contact a lawyer on his behalf.

[38] Back at the police station, the police facilitated contact between the accused and duty counsel, and between the accused and a private lawyer who had also contacted the police station to speak to the accused. Thereafter, no further statements were made by the accused.

8. The Voluntary Nature of the Statement by the Accused

[39] According to each of the police officers who testified on the evidentiary voir dire, at no point in their dealings with the accused were there ever any threats, promises or inducements made by any officer to the accused. Further, the accused appeared sober and seemed to understand everything that was said to him. He made thoughtful, rational and responsive answers to the inquiries by the police. They talked together in a “normal” conversational tone. There were “no raised voices.” The accused was polite and cordial throughout his dealings with the police. To Det. Pravica it appeared that, in speaking to him, the accused was simply “getting something off his chest.”

C. Analysis

1. Common Law Voluntariness

[40] At the conclusion of the voir dire evidence, Mr. Gold candidly conceded that there was really no argument to be made, based upon the evidence, that the oral statement by Mr. Dykstra was anything but voluntarily provided to the police. In any event, I am satisfied that the Crown has established beyond a reasonable doubt that the statement was made freely and voluntarily by the accused.

[41] As I have indicated, each of the four police officers testified that, at no point in any of their dealings with the accused, did any person make any threats, promises or inducements to Mr. Dykstra. There was no suggestion of any kind of physical violence or intimidation tactics. Further, they uniformly testified that the accused appeared to understand everything that was said to him, and was not in any way intoxicated or impaired. Det. Pravica and the accused spoke to each other calmly, respectfully and in a “normal” conversational tone, without any aggression, raised voices, or pressure of any kind. The accused was described as polite, cordial and cooperative throughout all of his dealings with the police. Indeed, as Det. Pravica suggested in his evidence, I am satisfied that the accused provided his oral statement to the police because he wanted to get his version of the relevant events “off his chest” at the first reasonable opportunity.

[42] There is simply nothing in the evidence that might realistically cast any potential doubt on the voluntariness of the statement by Mr. Dykstra. Rather, the accused provided his statement freely and voluntarily, and only after he had been clearly advised of: (1) the reason for his arrest; (2) the pending charge of aggravated assault against him; (3) all of the informational details of his right to counsel; and (4) had heard the usual caution as to his right to remain silent and the consequences of making any statement to the police. Accordingly, I am satisfied beyond any reasonable doubt that the oral statement by the accused was made voluntarily, as that term has been explained in the governing jurisprudence. See R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, at pp. 164-173, 181-186; R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 22-45, 48-71; R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at paras. 27-40.

2. Sections 10(a) and (b) of the Charter of Rights

a. Introduction

[43] Defence counsel argued that the police violated the constitutional rights of the accused guaranteed by ss. 10(a) and 10(b) of the Charter. I disagree. In my view, the conduct of the police, in their interactions with the accused, was Charter compliant.

[44] According to these constitutional guarantees, everyone has the right, on arrest or detention “to be informed promptly of the reasons thereof,” and “to retain and instruct counsel without delay and to be informed of that right.” These two constitutional rights are closely linked. One of the important reasons the police are required to inform a person of the reasons for their detention or arrest is to permit that person to make an informed choice as to whether they wish to exercise their right to counsel, and to allow them to secure sound legal advice based on an accurate understanding of the extent of their potential jeopardy. See R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, at pp. 152-153; R. v. Smith, 1991 CanLII 91 (SCC), [1991] 1 S.C.R. 714, at p. 728; R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145, at p. 166.

[45] In R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 2, 37-42, the Supreme Court of Canada held that the “right to counsel” duties that are imposed upon the police by s. 10(b) of the Charter are triggered immediately upon an arrest or detention. The court held that the phrase “without delay” in s. 10(b) means “immediately.” In the result, upon any detention or arrest, the informational duty and implementation obligation cast upon the police must be immediately executed. This is so, as the court in Suberu explained, because concerns over compelled self-incrimination and interferences with individual liberty are triggered as soon as a citizen is detained or arrested, and citizens must accordingly be protected. The Supreme Court held that the immediacy of the obligation cast upon the police is subject only to concerns for officer or public safety, or reasonable limits that are prescribed by law and justified under s. 1 of the Charter.

b. The Detention of the Accused – Compliance With s. 10(a) of the Charter

[46] Defence counsel argued, and the Crown conceded, that the police failed to comply “promptly” with their obligation to inform the accused of the reasons for his arrest or detention when they first arrived inside the Parliament Street apartment and ascertained that the accused was in fact the Matthew Dykstra that they were looking for. Indeed, the parties jointly suggested that the accused was legally detained as soon as he identified himself as Matthew Dykstra, and that the police violated s. 10(a) of the Charter by failing to then immediately advise him of the reasons for his detention. I disagree.

[47] In R. v. Suberu and R. v. Grant, the Supreme Court of Canada confirmed that not every interaction between the police and a member of public amounts to a “detention” and that the Charter rights recognized by ss. 9 and 10 are engaged only by police-citizen interactions that involve “significant physical or psychological restraint” by the state. More particularly, the Supreme Court stated that a person is detained when they are either physically restrained or legally required to comply with a demand or direction that interferes with their liberty. Further, a person is psychologically detained when a reasonable person in the subject’s position would conclude that he or she had been deprived of the freedom or liberty to choose whether or not to co-operate with the police. When an encounter between a police officer and an individual effectively crystallizes into a “detention,” immediately triggering the right to counsel, will depend on the circumstances, but is an objective determination to be made by the trial judge applying the proper legal principles. See R. v. Suberu, at paras. 3-5, 21-23; R. v. Grant, at paras. 28-31.

[48] Moreover, in R. v. Grant, at paras. 31-32, 41, the court emphasized that the focus must be on the state conduct in the context of the surrounding legal and factual situation, and how that conduct would be perceived by a reasonable person in the situation as it develops. The subjective intentions of the police are not determinative. Even a focused suspicion on the part of the police, by itself, will not turn an encounter into a detention. The trial Judge must undertake a “realistic appraisal of the entire transaction.”

[49] In my view, in this case the accused was not detained until he indicated that he knew why the police were in attendance in the apartment and asked to continue the interaction with the police in the hallway. My conclusion as to the precise point-in-time when the “detention” of the accused crystallized is only a few brief seconds later than the point-in-time suggested by the parties, but it is analytically significant, as it is the effective difference between police compliance and police breach of s. 10(a) of the Charter in the circumstances of this case. Properly viewed, this detention and subsequent arrest of the accused were separated only by a few seconds, and by the intervening police officer safety “pat-down” search of the accused. In my opinion, this detention and arrest of the accused were conducted in accordance with the requirements of s. 10 of the Charter.

[50] In reaching this conclusion as to when the accused was detained for purposes of s. 10 of the Charter, I have considered the three groups of factors articulated by the Supreme Court of Canada in Grant, at para. 44, and Suberu, at para. 25. These factors outline how to determine when a detention takes place when there is no immediate physical restraint or legal obligation or direction to the accused. These factors apply in this case as the accused was not immediately subjected to any physical restraint, or legal obligation or direction when the police arrived in the apartment kitchen.

[51] The first set of factors considers the circumstances giving rise to the encounter. In this case, it was apparent that the police were not in attendance at the apartment to provide general assistance, or to maintain general order. Rather, the police were in attendance at the apartment regarding a specific allegedly criminal occurrence and, by the time of their attendance, they had focused their investigation on the accused. This was how the attendance of the police at the apartment must have been reasonably perceived by the accused. Examination of this factor, in isolation, suggests that the accused may have been detained from the very outset of his interaction with the police, as soon as he identified himself as Matthew Dykstra. Examination of the other two factors, however, supports my conclusion as to the point-in-time when the accused was detained by the police.

[52] The second group of factors examines the nature of the police conduct. In the present case, the police entered the apartment with the voluntary consent of its lawful occupant. They were clearly looking for the accused. However, during their initial brief interaction in the kitchen, the police did not make any physical contact with the accused, nor did they take any physical control of him until the police safety pat-down search. Further, there was no verbal demand or direction by any police officer that would have reasonably communicated to the accused that he was detained prior to that point. It was certainly apparent to the accused that the police wanted to speak to him about something, and he indicated that he knew the reason for their attendance. However, it was the accused that then suggested that they discuss the matter outside the apartment. The police did not direct him outside to the apartment building hallway. Rather, it was the accused’s own idea to discuss the matter outside the apartment, in the absence of the elderly female.

[53] The third group of factors considers the personal circumstances of the accused. At the time of this interaction with the police, the accused was an adult male who appeared to be in his late 20’s or early 30’s. While he was of average height, he appeared fit and muscular. He was Caucasian, not a member of any visible racial minority. As the accused did not testify on the voir dire, it is difficult to judge his level of intelligence and sophistication, or assess his level of experience with the police. However, based on the evidence, the accused was sophisticated enough to want to provide the police with his exculpatory version of the relevant events at the first opportunity, and he was articulate enough to be able to clearly explain, in a chronological and sensible way, the events that led to him having to defend himself (and arguably his girlfriend) in the middle of the night against the sudden and unexpected violence of a larger man apparently trained in martial arts.[^1]

[54] As I have indicated, after assessing all three of these groups of factors individually and cumulatively, I have reached the conclusion that the accused was not detained until he indicated that he knew why the police were in attendance in the apartment and he asked to continue the interaction with the police in the hallway. The accused did not testify on the voir dire that he subjectively thought he was detained by the police at any earlier point-in-time. As I have already indicated, very shortly thereafter, one of the police officers conducted a brief pat-down search for reasons of officer safety, confirming that the accused was indeed detained. The police were legally entitled (if not obliged by common sense) to take this reasonable and timely self-protective procedural step before complying with their obligations under s. 10 of the Charter. Within a matter of seconds of the completion of this brief officer safety search, the accused and the police arrived in the hallway outside the apartment and, at that time, Det. Pravica told the accused that he was under arrest for “aggravated assault,” handcuffed him and advised him of his right to counsel. In my view, in so doing, Det. Pravica complied in a timely way with his obligations to “promptly” inform the accused of the reasons for his detention and arrest and advise him “without delay” of his rights to counsel. As the Supreme Court of Canada stated in Suberu, at para. 42, even the police obligation under s. 10(b) of the Charter to “immediately” advise all arrested or detained individuals of their right to counsel is “subject to concerns for officer and public safety.” [emphasis added].

c. Compliance With s. 10(b) of the Charter

1. The Governing Legal Principles

[55] Generally speaking, the constitutional dictates of s. 10(b) of the Charter require that every person who is detained or arrested by the police must be informed of their right to retain and instruct counsel without delay and, if the detained or arrested person chooses to exercise his or her right to counsel, the police must: (1) provide that person with a “reasonable opportunity” to contact and consult with counsel in private; and (2) refrain from questioning that person, or otherwise eliciting incriminating information from them, until he or she is able to avail him or herself of that reasonable opportunity to privately consult with counsel. See R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at pp. 1241-1244; R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3, at p. 10-12; R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190, at p. 203-204; R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, at p. 269; R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 192; R. v. Luong, 2000 ABCA 301, 271 A.R. 368, at para. 12; R. v. Lewis (2007), 2007 ONCA 349, 219 C.C.C. (3d) 427 (Ont.C.A.), at paras. 29-33; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 29-30.

[56] As an important practical matter, in the absence of proof that the individual did not, for whatever reason, understand his or her right to counsel when advised of it by the police, the onus is on the accused to prove that he or she: (a) asked to consult with counsel but was denied that right by the police; or (b) was denied any opportunity to even try to invoke the right to counsel. In other words, once the police have complied, without delay, with the informational component of s. 10(b) of the Charter, there are no further obligations or duties cast on the police unless and until the individual expresses his or her desire to exercise the right to counsel. See R. v. Baig, 1987 CanLII 40 (SCC), [1987] 2 S.C.R. 537, at p. 540; R. v. Anderson (1984), 1984 CanLII 2197 (ON CA), 10 C.C.C. (3d) 417 (Ont.C.A.), at p. 431; R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at pp. 890-894. In R. v. Willier, the Supreme Court confirmed, at para. 30, that the implementation duties under s. 10(b) of the Charter “are not triggered until detainees indicate a desire to exercise their right to counsel.”

[57] A detained or arrested individual, after being advised of the informational component of the right to counsel, must somehow assert or invoke the right and be reasonably diligent in exercising the right, otherwise the correlative duty cast upon the police to provide the individual with a reasonable opportunity to consult privately with counsel, and to refrain from seeking to elicit any incriminating evidence from the individual, will either not arise in the first place or will be suspended. See R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435; R. v. Brydges, at p. 203; R. v. Bartle, at p. 301; R. v. Prosper, at p. 269; R. v. R.(P.L.) (1988), 1988 CanLII 7092 (NS CA), 44 C.C.C. (3d) 174 (N.S.C.A.), at p. 179; R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, at p. 154-155; R. v. McKeen, 2001 NSCA 14, 190 N.S.R. (2d) 322, at paras. 18-31, leave denied, [2001] S.C.C.A. No. 162; R. v. Smith (2008), 2008 ONCA 127, 229 C.C.C. (3d) 117 (Ont.C.A.), at paras. 16-22; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 27.

[58] In R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, Abella J., delivering the unanimous judgment of the Supreme Court of Canada, at para. 23, referred to the following three police duties described in R. v. Manninen, namely: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and the existence and availability of legal aid and duty counsel; (2) if the detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger). In so doing, Abella J. noted, at para. 24, that the duty to inform the detainee of his or her right to counsel arises “immediately” upon arrest or detention, and that the duty to facilitate access to a lawyer, in turn, arises immediately “upon the detainee’s request to speak to counsel.” Further, at para. 26, Abella J. noted that “[u]ntil the requested access to counsel is provided, it is uncontroversial that there is an obligation on the police to refrain from taking further investigative steps to elicit evidence.” See also R. v. Bagherli, 2014 MBCA 105, 322 C.C.C. (3d) 213, at paras. 27-31.

[59] Once a detained or arrested individual asserts his or her right to counsel and is duly diligent in attempting to exercise it, having been afforded a reasonable opportunity to do so, if that individual indicates that he or she has changed his or her mind, and no longer wants to consult with counsel, the Crown is required to prove a valid waiver of the right to counsel. In such a case, the police have an additional informational obligation to “tell the detainee of his or her right to a reasonable opportunity to contact a lawyer” and of the obligation on the part of the police during this time “not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity.” This is sometimes referred to as a “Prosper warning” pursuant to R. v. Prosper, at pp. 274-275, 278; R. v. Basko (2007), 2007 SKCA 111, 226 C.C.C. (3d) 425 (Sask.C.A.), at paras. 2-3; R. v. Sabados, 2015 SKCA 74, [2015] S.J. No. 318, at paras. 44-45.

[60] Moreover, once the accused has been provided with the informational component of the right to counsel, and has exercised it, in the sense that he or she has consulted privately with counsel, the police may continue to interview and question the accused as part of their ongoing investigation. This is so even if the accused and/or his or her counsel have advised the police that the accused does not wish to speak to the police, provided that the persistence of the police questioning does not overcome the will of the accused and deprive him or her of the right to make a meaningful choice as to whether or not to speak to the police. See R. v. Singh, at paras. 7-9, 23-25.

2. Police Provided the Informational Component of the Right to Counsel

[61] In the circumstances of the present case, the accused was fully and properly advised of his right to counsel, as required by the governing jurisprudence, and the accused expressly indicated that he understood the informational component of that right.

[62] The legal adequacy of the informational component of s. 10(b) in the present case was effectively determined in R. v. Devries, 2009 ONCA 477, 95 O.R. (3d) 721, at paras. 21-42. In that case, the accused was arrested for impaired driving and, at the roadside was advised of the right to counsel in the identical terms that were employed by Det. Pravica in the present case. The accused said that she did not want to call a lawyer. After she was taken back to the police station, the accused was not given any further advice about her right to counsel, and she provided two breath samples that produced results showing that she had an illegal blood/alcohol concentration. The accused argued that these results should be excluded as there had been a violation of s. 10(b) of the Charter. The trial judge disagreed with this submission, admitted the evidence and the accused was convicted. The summary conviction appeal court judge, however, reached the opposite conclusion, holding that the police officer was required to expressly advise an accused that if he or she wishes to consult with a lawyer, all of the potential legal services and information would be arranged at the police station, not at the roadside. The Court of Appeal reversed this decision.

[63] Doherty J.A., delivering the judgment of the court, held, at paras. 29-30, that the use of the word “now” in the informational component of the right to counsel “conveys the requisite immediacy of the right to speak with a lawyer,” and the detainee’s right to speak to a lawyer “without delay,” and does not imply that “the detainee can speak with a lawyer instantly upon the officer’s completion of the s. 10(b) caution,” as most police officers are “not standing with a telephone in their outstretched hand as they complete the s. 10(b) caution.” Doherty J.A. held that an officer’s statement to a detainee that he or she may speak with a lawyer “now” would necessarily convey that the right to speak with a lawyer was contingent on the availability of a telephone that was useable in circumstances that would permit the detainee to speak with a lawyer for the purpose of obtaining legal advice. Further, at para. 31, Doherty J.A. noted that the right protected by s. 10(b) of the Charter was the constitutional right to speak with a lawyer “without delay,” and all detainees “are entitled to that right and must be so advised by the police.” Accordingly, the “language used by the police cannot suggest that the right to speak with a lawyer only arises at some point later on in the detention.” As Doherty J.A. noted, at para. 32, “[s]hould a detainee choose to speak with counsel “without delay,” the police must afford him or her the opportunity to do so.”

[64] As Doherty J.A. summarized, at para. 40, there is “nothing inherently misleading” in telling a detainee that he or she can speak with a lawyer “now,” as that language “conveys the immediacy of the detainee’s entitlement to speak with a lawyer.” The further question of what the police must do to fulfill the promise of that offer “arises if and when the detainee chooses to exercise the right to speak with a lawyer without delay.”

[65] Doherty declined, at paras. 33-37, to hold that the required informational component of s. 10(b) of the Charter should include information about where the communication with counsel will occur should the detained person choose to speak with counsel, concluding that there were “insurmountable practical problems” associated with incorporating such a suggestion into the standard s. 10(b) informational advice. Rather, Doherty J.A. confirmed the constitutional accuracy and sufficiency of the standard s. 10(b) informational advice that was provided to the accused in that case (and also to the accused in the present case), as it conveyed the “essential character” of the s. 10(b) Charter right – “the right to immediate access to a lawyer, including access through the toll-free number to immediate free legal advice.”

[66] Doherty J.A. acknowledged, at para 38, that there may be circumstances when the police may be obliged to go beyond the standard informational component to comply with s. 10(b) of the Charter. He stated, for example, that a detainee may, on occasion, ask questions or make comments that may display a “misunderstanding by the detainee of the nature of the s. 10(b) rights.” In such circumstances, Doherty J.A. held, the arresting police officer “will have to provide a further explanation of the rights.”

[67] Doherty J.A. concluded, at para. 42, that the police officer’s failure to re-advise the accused of her right to counsel subsequently when they arrived at the police station did not violate s. 10(b) of the Charter, as the detainee had already been “properly cautioned at the roadside” and had declined to speak with a lawyer. However, he suggested that it would be a “much better practice” for police officers in such circumstances, to simply reiterate the right to counsel upon arrival at the police station.

3. The Accused Declined to Exercise his Right to Counsel Immediately

[68] After the accused was fully and properly advised of his right to counsel, and indicated that he understood this right, the accused declined to exercise his right to counsel immediately. More particularly, when he was asked by Det. Pravica if he wanted to “call a lawyer now,” the accused replied, “no, not right now.

[69] There was nothing equivocal about the answer provided by the accused. The accused had a choice. He could have elected to contact a lawyer immediately or not. The accused clearly declined the invitation to immediately call a lawyer. Mr. Dykstra did not express any uncertainty about his decision. Nor did he change his mind in any way. Knowing that he was under arrest for aggravated assault, and having been fully and properly advised of his right to counsel, Mr. Dykstra simply elected not to exercise his option of contacting a lawyer immediately. This voluntary, informed and unequivocal decision by the accused was, on any reasonable view of the events, not a request to speak to counsel or any assertion of his right to speak to counsel immediately. Indeed, it was quite the opposite.

[70] Accordingly, applying the principle first articulated by the Supreme Court of Canada in R. v. Baig, at p. 540, as there is an absence of any evidence the accused did not understand his right to counsel, or was denied an opportunity to ask for counsel, once the police provided the accused with the informational component of s. 10(b) of the Charter, “there are no correlative duties triggered and cast upon them until the accused, if he so chooses, has indicated his desire to exercise his right to counsel.”

4. The Jurisprudence on this Issue

[71] This case is factually indistinguishable from the decision in R. v. Baxter, 2008 ABQB 172, 442 A.R. 391. In that case the accused, after he was advised of his right to counsel following his arrest for sexual assault, was asked whether he wanted to speak to a free lawyer or any other lawyer. The accused replied: “No, not at this time.” In his analysis of this functionally identical fact situation, Ross J. noted, at paras. 7-8, that the investigating police officer had complied with his “informational” duties under s. 10(b) of the Charter, and that the accused had expressed his understanding of that right. Further, Ross J. concluded, at para. 9, that when the accused declined to immediately exercise his right to counsel, “nothing further was required of the police in terms of the right to counsel” as the accused “had elected not to exercise his right to counsel, so the police implementational duties did not arise.” Moreover, Ross J. further concluded, at para. 9, that the investigating officer “was not obliged to refrain from eliciting evidence” from the accused, and “could have cautioned him and gone on to take his statement.” Defence counsel argued that the answer “No, not at this time,” was “equivocal” and required a “waiver” from the accused, but Ross J. disagreed, stating, at para. 13:

I do not accept that Prosper applies in the circumstances of this case. Mr. Baxter never indicated that he wanted a lawyer, never tried to contact a lawyer or experienced any difficulty in this regard, and never changed his mind. A focus on the police obligation to hold off questioning for a reasonable period of time is necessary where this has become an issue in the circumstances of the case. But here, there was no issue regarding the time it might take to contact a lawyer, or the status of the police investigation in the meantime.

[72] Similarly, in R. v. MacGregor, 2012 NSCA 18, 289 C.C.C. (3d) 512, the accused was arrested for impaired driving and was advised of his right to counsel at the roadside, acknowledged his understanding of his s. 10(b) Charter right. When he was asked if he wished to call a lawyer, the accused declined saying “not right now, thank you.” The arresting officer then advised the accused that he could change his mind and speak to a lawyer at any time during the process, and all he had to do was let the officer know, and the officer would put him in contact with a lawyer. The accused sought to have the results of his breath samples, which were subsequently obtained at the police station, excluded from evidence on the basis that his response “not right now, thank you” was equivocal, and the police did not subsequently remind him of his right to counsel at the police station, or obtain a valid waiver from him of his s. 10(b) Charter rights. The trial judge agreed, excluded the evidence, and acquitted the accused. On an appeal by the Crown, however, the summary conviction appeal court judge concluded that there was no violation of s. 10(b) of the Charter in the circumstances, as there was “no evidence that the defendant did not understand his s. 10(b) rights,” and the case was remitted to the trial judge. See R. v. MacGregor, 2011 NSSC 100, 301 N.S.R. (2d) 86, at paras. 80-85. The further appeal by the accused to the Nova Scotia Court of Appeal was dismissed and a new trial was ordered. Bryson J.A., delivering the judgment of the court, agreed that there had been no violation of s. 10(b) of the Charter in the circumstances. Bryson J.A. concluded, at para. 30, that the police were not obliged to obtain a waiver from the accused, nor were the police required to again reiterate the ongoing nature of the right to counsel at the police station. Further, at para. 41, Bryson J.A. concluded, expressly relying upon the Supreme Court of Canada decision in Baig, that “[o]nce police have discharged the informational component of s. 10(b), the implementation component does not arise absent an expressed desire by the accused to exercise those rights.”

[73] There are a number of other cases that speak to the same principle and are to the same effect. See R. v. Chenier, [2001] O.J. No. 5979 (S.C.J.), at paras. 8, 13-14; R. v. Boudreau, 2009 NSPC 26, 178 N.S.R. (2d) 76, at paras. 25-29; R. v. Bogle, 2011 ONSC 3050, [2011] O.J. No. 2386, at paras. 57, 95-107; R. v. Williamson, 2011 ONSC 6584, [2011] O.J. No. 5161, at paras. 76, 138, 146, 160-179; R. v. Spin, 2011 NSCA 80, 276 C.C.C. (3d) 345, at para. 28.

[74] There are, however, a number of cases to the contrary, and which support the position advanced by defence counsel. See, for example R. v. Munro, [2009] O.J. No. 399, 79 M.V.R. (5th) 180 (S.C.J.), at paras. 8, 45-51; R. v. Owens, 2014 ONSC 7471, [2014] O.J. No. 6209, at paras. 12-17. This line of authority suggests that there is a violation of s. 10(b) of the Charter in factual circumstances such as those in the present case because a response by a detainee akin to “No, not right now,” when asked if he or she wishes to consult counsel immediately, is not a “clear and unequivocal waiver” of the right to counsel. I quite agree that such language by a detainee is not an effective waiver of the right to counsel. I disagree, however, from an analytical perspective, that waiver is the important issue in these circumstances. The issue, in my view, is not whether the detainee has waived his or her right to counsel. Rather, the issue is whether the detainee, having been properly advised of his or her right to counsel, and having expressed an understanding of this right, has positively asserted that right so as to engage the obligation on the police to refrain from eliciting evidence from the detainee.

[75] This point was resolved more than 30 years ago by the Ontario Court of Appeal in R. v. Anderson, where the court expressly rejected the defence argument that s. 10(b) of the Charter required that “the accused must not only be advised of his right to counsel, but must also be asked whether he understands the meaning of that right and whether he wishes to retain counsel, and that, unless there is a clear waiver of this right by the accused, he must be given the facility or opportunity to exercise it.” [emphasis added]. Instead, the Court of Appeal in Anderson adopted the rule, subsequently endorsed by the Supreme Court of Canada in R. v. Baig, at p. 540, that absent proof of circumstances indicating that the accused did not understand his right to counsel when advised of it, the accused must prove that he asserted his right to consult with counsel but was denied that right, or was denied any opportunity to even ask for the right, otherwise “there are no correlative duties triggered and cast upon [the police] until the accused, if he so chooses, has indicated his desire to exercise his right to counsel.” See also R. v. Playford (1987), 1987 CanLII 125 (ON CA), 40 C.C.C. (3d) 142 (Ont.C.A.), at pp. 162-163.

[76] This position was confirmed by the Court of Appeal for Ontario yesterday. In R. v. Owens, 2015 ONCA 652, the accused was charged with operating a motor vehicle with an excessive blood-alcohol concentration. When the accused failed the approved screening device breath test, he was arrested and a demand was made that he provide further breath samples into an approved instrument at the police station. The accused was promptly advised of his right to counsel, and he expressed his understanding of that right. When the arresting officer asked the accused if he wished “to call a lawyer now,” the accused said, “No, not right now.” The accused was then taken to the police station where further breath samples were provided and the Intoxilyzer device revealed that the accused had 160 mgs. of alcohol in 100 mls. of blood. Later, when he was returned to the arresting officer, the accused again declined to speak to counsel, indicating that he had nothing “nothing to hide.”

[77] At trial, the accused sought to exclude the results of his breath samples, arguing that his rights under s. 10(b) of the Charter had been violated. The trial judge dismissed that application, holding that the accused had never invoked his right to counsel. The accused was convicted. On appeal, the summary conviction appeal judge held that the trial judge erred in her s. 10(b) analysis by focusing on whether the accused had invoked his right to counsel, rather than on whether there had been a valid waiver of the right. The appeal court judge concluded that there had been a violation of the accused’s right to counsel as there had been no unequivocal waiver of the s. 10(b) Charter right. Further, the appeal court judge held that the breath sample evidence was inadmissible under s. 24(2) of the Charter, and she entered an acquittal. (This decision is one of the examples cited and discussed earlier, at para. 74 of these reasons).

[78] On further appeal, the Court of Appeal reversed this decision and restored the conviction entered at trial. Hourigan J.A., delivering the judgment of the court, held, at paras. 22-31, that the appeal court judge erred in her analysis in heading “straight to the issue of waiver of the implementational duties under s. 10(b)” of the Charter, and “bypassing any consideration of whether the [accused] had invoked his right to consult with counsel and never considering the trial judge’s findings with respect to this issue.” Hourigan J.A. made it clear that the “issue of waiver of s. 10(b) rights only arises when the accused has established on a balance of probabilities that he invoked his right to counsel.” More specifically, Hourigan J.A. stated, at paras. 24-27:

The Supreme Court has been consistent since R. v. Baig, 1987 CanLII 40 (SCC), [1987] 2 S.C.R. 537, in holding that implementation duties “are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel”: R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 192; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 30, 33; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 23-24. This court has also held that implementation obligations arise only when detainees express a wish to exercise their right to counsel: R. v. Fuller, 2012 ONCA 565, 295 O.A.C. 309, at para. 17.

The Supreme Court has also made clear that police implementational obligations flowing from s. 10(b) are not absolute. Absent invocation of the right to counsel and reasonable diligence in its exercise by the detainee, police duties to provide a reasonable opportunity to consult counsel and to refrain from soliciting evidence will either not arise in the first place or will be suspended: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 27.

While the onus rests with the Crown to prove that a detainee has unequivocally waived his right to consult counsel, and the standard required for an effective waiver is “very high”, the issue of waiver arises only if a detainee first asserts the right: R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, at pp. 274-75; Sinclair, at paras. 27-28. Further, “absent proof of circumstances indicating that the accused did not understand his right to retain counsel when he was informed of it, the onus has to be on him to prove that he asked for the right but it was denied or he was denied any opportunity to even ask for it”: Baig, at p. 540, citing R. v. Anderson (1984), 1984 CanLII 2197 (ON CA), 10 C.C.C. (3d) 417 (Ont C.A.), at p. 431.

Thus, once the trial judge found that the police had complied with the informational component of s. 10(b), the next question for determination was not whether the Crown had established that the respondent had waived his right to consult counsel, but whether the respondent had established that he invoked his right to consult counsel and thereby triggered the implementational duties.

[79] Finally, Hourigan J.A. noted, at paras. 28-29, that whether a detainee asserted a desire to consult with counsel was essentially a question of fact and, accordingly, the summary conviction appeal court judge was obliged to: (1) acknowledge the finding of fact by the trial judge that the accused had not invoked the right to counsel; and (2) defer to that finding of fact absent a palpable and overriding error by the trial judge. The appeal court judge did not, however, acknowledge this factual finding and performed no analysis of its validity. Hourigan J.A. concluded that the trial judge’s conclusion that the accused “did not invoke his right to consult counsel” contained “no palpable and overriding error that would permit appellate interference.” Moreover, it was open to the trial judge to find that the statement “No, not right now,” did “not qualify as an invocation of the right to counsel.”

[80] This body of jurisprudence supports my view that expressly declining the immediate opportunity to consult with counsel, but reserving the right to do so at some later time, is not an assertion of the right to counsel sufficient to immediately oblige the police to cease any and all questioning of the accused. That obligation would only be subsequently triggered if and when the detainee expressed his or her desire to exercise their right to counsel. For example, in the present case, when the accused subsequently expressly asserted his right to counsel when it was reiterated by Cst. Lee when they arrived at the police car, that assertion engaged the obligation on the police to thereafter refrain from eliciting evidence from the accused until he had a reasonable opportunity to consult with counsel. Of course, the mere fact that the accused subsequently asserted his right to counsel does not impact on the analysis of whether there was any violation of the accused’s Charter rights prior to the accused making his oral statement to Det. Pravica in the apartment building hallway. It is, however, important to recall that even later, when the accused asserted his right to counsel, he expressed no confusion about his rights, or sought any clarification about the exercise of those rights. This illustrates that the accused simply decided not to exercise his rights to counsel until after he had provided Det. Pravica with his version of the events – which was his right.

d. Conclusion

[81] In conclusion, the police did not violate s. 10(b) of the Charter. The accused was fully advised of the informational component of his right to counsel immediately upon his arrest, which followed just seconds after his detention and which was only interrupted by a brief and appropriate police officer safety search. The accused expressly declined to exercise his right to counsel immediately, but effectively reserved the right to consult with counsel at a later point. This unequivocal response did not require the police to refrain from making any further inquiries of the accused. Rather, his response permitted the police to continue their investigation by asking him whether he “wished to say anything” in answer to the charge of aggravated assault. After he provided the police with his version of the relevant events and outlined how he had acted in self-defence against the aggression of the complainant, the accused then elected to exercise his right to consult with counsel. In short, the accused was advised of his constitutional rights in a timely fashion, he expressed his understanding of those rights, and he thereafter elected to exercise those rights when he saw fit.

[82] As I have concluded that there was no police violation of any of the constitutional rights of the accused, there is no need to consider the question of the admissibility of the evidence under s. 24(2) of the Charter.

D. Conclusion

[83] In the result, as I earlier advised the parties, the evidence of the oral statement allegedly made by Mr. Dykstra to Det. Pravica in the hallway of the apartment building, immediately following his arrest and being advised of his rights to counsel, is admissible as evidence at the trial of this matter.

Kenneth L. Campbell J.

Released: September 29, 2015

COURT FILE NO.: 2533/14

DATE: 20150929

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

- and -

MATTHEW DYKSTRA

PRE-TRIAL RULING:

STATEMENT ADMISSIBILITY

K.L. Campbell J.

Released: September 29, 2015

[^1]: Had the accused sought to tender this spontaneous oral statement, made to the police immediately upon his arrest and when he was first confronted with the allegation of aggravated assault, it would likely have been admissible, as evidence of his reaction to the allegation, pursuant to the principle outlined in R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161, at paras. 24, 72. This would have been relevant to his credibility as a witness and as circumstantial evidence having a bearing on his guilt or innocence. As it turned out, the accused testified at trial in accordance with this oral statement, and he was ultimately acquitted by the jury.