ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-204

DATE: 20151112

BETWEEN:

HER MAJESTY THE QUEEN

– and –

AARON LEWIS and COURTNEY ANTHONY LEWIS

Applicants

I. Kandola, for the Crown

R.C. Bottomley and H. Pringle, for the Applicants

HEARD: October 21, 2015

HEALEY J.

Nature of the Applications

[1] This endorsement is in regard to a pre-trial defence application for a ruling with respect to whether the statement of the accused, Aaron Lewis, is admissible at trial, together with an application by the Crown for inclusion of the statement. Following argument, I ruled that the statement was inadmissible, with full reasons to be released at a later date.

Facts

[2] Aaron Lewis was identified by witnesses as being involved in a fight in a public plaza that led to the victim suffering bodily harm, causing Mr. Lewis to become a person of interest in the investigation, and ultimately leading to his arrest. Mr. Lewis was contacted by Detective Armstrong by telephone at 12:43 p.m. on June 26, 2012, and told to wait outside on his driveway, as he was going to be arrested for aggravated assault. At this point in the investigation, the victim was unconscious in hospital, and witnesses were being interviewed.

[3] P.C. Brickell attended Mr. Lewis’ residence, immediately arrested him in his driveway, and placed him in the back of the police cruiser. He was advised of his right to counsel and cautioned, this occurring approximately one minute after the police’s arrival. Mr. Lewis was then asked whether he wanted to speak with a lawyer, and responded that he did.

[4] Mr. Lewis’ father was also present in the driveway and advised P.C. Brickell that he would call a lawyer on behalf of his son. He provided the officer with the name of Jamie Fox, and indicated that Mr. Fox was a Toronto lawyer. Mr. Lewis Sr. followed the cruiser to the police station. Mr. Lewis was brought into the station at 1:00 p.m. and again read his right to counsel when paraded before the cell sergeant. While in the booking area, he told P.C. Brickell that he wanted to speak to his family’s lawyer, Mr. Fox. Further, after arriving at the station, Mr. Lewis Sr. provided P.C. Brickell with a card containing Mr. Fox’s contact information and reiterated that his son wanted to speak with Mr. Fox. The officer passed Mr. Fox’s contact information on to Detective Armstrong.

[5] Detective Armstrong attempted to call Mr. Fox twice. His first call connected him to Mr. Fox’s voice mail, where he was redirected to another extension. His second call connected him to Mr. Fox’s assistant, who advised him that Mr. Fox would be out of the office until at least 5:00 pm., and might not be returning that day. He did not inquire whether the assistant could get a message to him, or ask for Mr. Fox’s cell phone number. He testified that the assistant also told him that Mr. Fox was a civil litigation lawyer, and not a criminal lawyer. He left the message that Mr. Lewis was in custody.

[6] The officer passed on this information to Mr. Lewis and advised that he could speak to duty counsel if he chose to; Mr. Lewis asked to do so. Detective Armstrong called the duty counsel at 2:12 p.m. and left a message. The duty counsel called back and, according to the prisoner’s log, Mr. Lewis was able to speak to him. There is no evidence of the duration of that call. There is no evidence that Mr. Fox ever responded to the call placed to him.

[7] At 3:21 p.m., and after Mr. Lewis’ conversation with duty counsel, Detective Armstrong escorted him to the interview room. Before beginning the questioning, the officer advised him that he had no obligation to speak, and that whatever he said “will be given in evidence”. Mr. Lewis indicated that he understood the caution. The officer did not ask Mr. Lewis whether he still wished to speak with Mr. Fox, or whether he was satisfied with his discussions with duty counsel. Nor did Mr. Lewis ever indicate that he wanted to speak with Mr. Fox, either before or during the interview process. At seven separate times during the interview process, Mr. Lewis stated that he did not want to say anything, on the advice of his lawyer.

[8] Mr. Lewis nonetheless answered most of the officer’s questions, the interview lasting approximately 27 minutes.

Charter: s. 10(b)

[9] The rights granted to an accused under s. 10(b) must never be modified by a police officer’s perception of the area of expertise of the lawyer from whom the accused person wishes to seek advice, even if factually correct. The choice of the accused person to contact a particular lawyer upon detention must be respected and reasonably facilitated, regardless of whether that lawyer practices criminal law. The importance of the right to speak with an accused’s counsel of choice was highlighted by the Ontario Court of Appeal in R. v. McCallen (1999), 1999 3685 (ON CA), 131 C.C.C. (3d) 518 at paras. 36-38:

The reasons why clients may choose one lawyer rather than another may vary widely and will often turn on personal preferences or other factors that do not lend themselves to objective measurement. Professional reputation and competence will no doubt be important factors in the choice of counsel, but it would understate the full nature of the relationship to suggest that the choice be limited to those considerations. The very nature of the right is that the subjective choice of the client must be respected and protected. Absent compelling reasons involving the public interest, the government and the courts need not be involved in decisions about which counsel clients may choose to act on their behalf.

In addition to constituting a valuable personal right to clients, s. 10(b) provides a right that is an important component in the objective perception of fairness of the criminal justice system. Criminal proceedings are adversarial in nature and pit the accused against the authority of the state. Without adequate safeguards the resulting contest may be unfairly weighted in favour of the state. The right to have the assistance of counsel is high on the list of those protections for accused person which enable them to fully defend the charges brought against them. Including with this fundamental right to counsel, the additional right to choose one’s own counsel enhances the objective perception of fairness because it avoids the spectre of state or court interference in a decision that quite properly should be the personal decision of the individual whose interests are at stake and whose interests the counsel will represent.

The corollary to this point, which is central to this case, is that the perception of fairness will be damaged, and in many cases severely so, if accused persons are improperly or unfairly denied the opportunity to be represented by the counsel they choose.

[10] Ultimately, once Detective Armstrong had learned that Mr. Fox did not practice criminal law, the suggestion was put to Mr. Lewis that he could speak to duty counsel. The transcript of the interview reveals that the information about Mr. Fox’s practice area was a primary basis for presenting Mr. Lewis with duty counsel as an alternative. That consideration should have played no part in Detective Armstrong’s decisions. Further, on the facts of this case the officer was not persistent enough in his efforts to put Mr. Lewis in touch with Mr. Fox; he did not inquire about whether Mr. Fox could be reached through a cell phone number, he did not ask Mr. Fox’s assistant whether she could reach him, and he did not wait until after 5:00 p.m. to see whether Mr. Fox returned the call. Again, based on the facts presented, there is no doubt that these extra steps were not taken because the officer had learned that Mr. Fox practiced civil litigation. Although Crown counsel argued that it is significant that Mr. Fox never returned the call, such hindsight cannot save a Charter breach. In the circumstances of this case, there was no urgency in questioning Mr. Lewis, as no evidence would be compromised by delaying the questioning, and the investigation was still ongoing.

[11] Although there was no coercion or bad faith on the part of Detective Armstrong in offering to call duty counsel, this scenario still results in a failure to inform the accused of his right to speak with the lawyer of his choice before beginning an interrogation. Knowing that Mr. Lewis had identified Mr. Fox on more than one occasion as the specific lawyer that he wished to speak with, the officer was required to hold off on questioning this accused until he had had a reasonable opportunity to exercise his right to speak with that specific lawyer. Second, the officer was required to inform Mr. Lewis that he had a duty to hold off on questioning him until that had occurred, or at least until it could be determined, after a reasonable amount of time and with greater efforts, whether that could occur. But at no time did the officer tell Mr. Lewis that he could maintain his choice to speak with Mr. Fox. Accordingly, Mr. Lewis was deprived of his right to make an informed choice in the course of exercising his right to counsel.

[12] This is not the same as the situation that arose in R. v. Prosper, 1994 65 (SCC), [1994] 3 S.C.R. 236, in which the Supreme Court of Canada held that a change of mind of a detainee who had previously indicated a desire to speak to counsel gives rise to a positive duty on the police to explain to that person both his right to a reasonable opportunity to contact a lawyer, and their obligation to not require the detainee to participate in any potentially incriminating process until he or she has had such opportunity. Yet it raises the same principle. A person can only legitimately decide to waive his right to speak to his lawyer of choice if he understands that he does not have to do so, and that waiting to speak with his lawyer of choice will not undermine any existing right. Without this having been explained to Mr. Lewis, the Crown cannot meet its burden of proving that he validly waived his right to speak to his preferred counsel. And without this explanation, the fact that Mr. Lewis made no objection following his conversation with duty counsel nor reasserted a wish to speak to Mr. Fox does not alter the analysis. He was not made aware that he had the right to do so. Accordingly, the accused has met his burden of proving that the informational component of his s. 10(b) Charter rights was infringed.

[13] Additionally, there has been a breach established by virtue of this court’s finding that the police did not fulfil their duty to act diligently in facilitating Mr. Lewis’ right to consult with counsel of his choice. More fulsome efforts should have been made, including but not limited to waiting for Mr. Fox to return the call. The fact that the officer did not wait at all distinguishes this case from R. v. Richfield (2003), 2003 52164 (ON CA), 178 C.C.C. (3d) 23 (Ont. C.A.).

[14] A breach of the duty having been found, the court must decide whether the accused fulfilled his duty to act diligently to exercise the right to counsel; if not, this trumps the breach by the police and no Charter breach is made out: R. v. Blackett, [2006] O.J. No. 2999 (S.C.J.) at para. 29. I find that Mr. Lewis acted as diligently as he could in the circumstances. He had no phone, nor was he offered access to one personally. He had communicated the name of the lawyer, and with the assistance of his father had provided contact information to the police. And given the failure of the police to explain his rights to him, as set out in the preceding paragraphs, it is meaningless to evaluate the persistence of his attempts to reach Mr. Fox.

[15] The suggestion given to Mr. Lewis to bypass Mr. Fox in favor of duty counsel was based in part upon an improper consideration, that being Mr. Fox’s area of practice. Once that fact was known, all efforts to put Mr. Lewis in touch with Mr. Fox ceased. That important fact distinguishes this case from those relied on by the Crown, being R. v. Willier, 2010 SCC 37, R. v. Neziol, [2001] O.J. No. 4372, and R. v. Richfield. Further, the Supreme Court of Canada in Willier found that the brief interval between Mr. Willier’s attempt to contact his own lawyer and the start of the interview did not deprive him of a reasonable opportunity to contact counsel of his choice, but this was based in part on the fact that he was offered an open-ended invitation to contact counsel prior to and throughout the interview, even after speaking with duty counsel. No such offer was given to Mr. Lewis.

Charter: s. 24(2)

[16] Having found that Mr. Lewis’ rights under s. 10(b) of the Charter were violated, the court must next consider whether there should be an exclusion of evidence under s. 24(2) of the Charter, by applying the test set out in R. v. Grant (2009), 2009 SCC 23, S.C.J. No. 23 (S.C.C.)

[17] The court should seek to dissociate itself from police conduct that denies an accused the right to counsel of his choice based, in part, on the wholly improper consideration of that lawyer’s practice area. Again, while no coercion went on, the fact that this was even discussed with Mr. Lewis and preceded the invitation to contact duty counsel, shows a lack of appreciation on the part of the police as to the importance of facilitating contact with the lawyer chosen by a detainee. Breaches of the right to counsel are regarded as serious and significant generally, but here, where there was no extenuating circumstance to explain the failure to hold off on questioning or give Mr. Lewis a “Prosper-type” warning, this was Charter-infringing conduct of a serious nature.

[18] Turning to the second branch of the Grant test, I find that this is a case in which the benefit of the doubt must be given to the accused in assessing the impact of the breach. It may be inferred from the transcript that Mr. Lewis was told by duty counsel that he should not discuss the event under investigation, in his words, “my lawyer said I wasn’t supposed to say nothing”. Yet he went on to make incriminating remarks. Crown counsel argues that Mr. Lewis was eager to broadcast his story to the police. He also submitted that in the context of the preparation for a police interview, the typical advice among lawyers will be more or less the same, making the impact on the accused of little significance. But that misses the point, in my view. Mr. Lewis chose Mr. Fox for reasons unknown, other than the fact that he was described as the Lewis’ family lawyer. There was no evidence of the relationship between them. What we will never know is, had Mr. Fox been the one to explain to Mr. Lewis the reasons why he should say nothing, whether his advice would have had a greater impact on Mr. Lewis’ subsequent behavior during the interview. Given the importance of the right of a detained person to not self-incriminate, in my view the police conduct had a potentially significant, negative impact on Mr. Lewis, and the benefit of any doubt should be given to him and weigh highly in favor of exclusion of the evidence.

[19] With respect to the third branch, the evidence obtained was in relation to a serious offence, and the truth-seeking function of the trial process is an important consideration. Nonetheless, as stated in Grant, this consideration may be attenuated by lack of reliability of statements taken in violation of the Charter, and this, together with the law’s tendency to treat statements of an accused differently from other evidence, explains why such statements tend to be excluded under s. 24(2). Given the serious injuries sustained by the victim, a conviction in this case potentially carries with it a significant penal sentence. Overall, I find on the facts that it is more important to ensure that a justice system that tries and convicts an individual of such a serious crime is above reproach, in order to maintain the public’s confidence in its integrity.

[20] A balancing of each of these three factors weighs wholly in favor of exclusion of the statement, and accordingly the statement was found to be inadmissible.

Voluntariness

[21] In light of the above ruling, a decision with respect to the voluntariness of the statement is moot, but nonetheless for sake of completeness the Crown’s application will be determined. I find that the Crown has met its burden of proving that the statement given by the accused was voluntary, beyond a reasonable doubt, in accordance with the test set out in R. v. Oickle, 2000 SCC 38, 2000 S.C.C. 38, [2000] 2 S.C.R. 3 and R. v. Singh, 2007 SCC 48, 2007 S.C.C. 48, [2007] 3 S.C.R. 405.

[22] Defence counsel submitted that the circumstances that vitiate voluntariness are an inducement by the police in the form of an inference that Mr. Lewis would be released if he explained the events, coupled with an oppressive environment created by handcuffs, temperature, an uncomfortable, hard-backed chair, and the officer pressing ahead despite multiple protestations by Mr. Lewis that he was told not to talk about the event. The comments in question occurred approximately six minutes into the interview, when the officer stated:

Detective: Okay, well if I’ve got the wrong person here, only one of you guys was punchin’, then that’s probably pretty important, right? ‘Cuz I’ve got two of you guys under arrest right now for a very serious charge.

Lewis: Yeah.

Detective: There’s no need of you both going through if something didn’t happen for one person, right? Okay?

[23] It was argued by Mr. Bottomley that these comments would have led Mr. Lewis to the conclusion that he might gain his liberty in return for giving a statement. In R. v. Oickle, the Court repeatedly emphasized the need to apply the confessions rule contextually, looking at all the circumstances surrounding the making of the confession. Taking that approach, I cannot agree that these comments would have created such an impression. First, the inference that the defence asks be made from the comments is veiled, and Mr. Lewis showed little signs of responding to the statements. In the period preceding and following the statements by the officer, Mr. Lewis’ responses remain terse; it is only later in the interview that he becomes responsive. Second, immediately after the statements quoted above, the officer made another statement indicating that he had witnesses who saw Mr. Lewis throw punches, together with his cousin. This further information was unlikely to have increased Mr. Lewis’ hopes of release. Accordingly, I find that the necessary inducement or offer of a quid pro quo to be absent.

[24] The other circumstances mentioned by the defence, taken alone, do not amount to oppression of the type necessary to cause the accused’s will to be overborne, thereby rendering his statement involuntary. They are circumstances frequently in play in an interview situation. Having said that, this is one of a number of videotaped interviews that I have viewed, from several police detachments, in which the detained person is visibly cold and shivering to the point of appearing to be in great discomfort. The explanation is always the same; that it is cold in the cells. It is difficult to conceive of a good reason to put a detained persons through such discomfort, especially in the case of a pre-arranged or calm arrest such as this one. The police knew that they were going to arrest Mr. Lewis and they could have warned him to dress warmly. Any person being subjected to such an environment for a prolonged period may understandably want to escape from it as soon as possible. The conclusion can be easily drawn that this is a tactic employed to encourage a detained person to speak in order to get the ordeal over with. This is all by way of saying that, in different circumstances, that particular factor may be the one that tips the scales toward a different conclusion than reached in this case.

[25] However, on the facts presented in this case and after considering all of the circumstances, I still find the statement to have been given voluntarily.

HEALEY J.

Released: November 12, 2015