CITATION: R. v. Burnett, 2015 ONSC 745

COURT FILE NO.: 14-7-0000132-0000

DATE: 20150202

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ANDREW BURNETT

Defendant

Joanne Capozzi and Neville Golwalla, for the Crown

Sean Robichaud, for the Defendant

HEARD: January 7 and 8, 2015

MOLLOY j.:

REASONS FOR DECISION

(Admissibility of statements made to the police)

A. INTRODUCTION

[1] Andrew Burnett and Jeramy Henry are charged with first degree murder in the shooting death of Cory “Marcus” Campbell on September 8, 2012. Mr. Burnett was arrested by police in the vicinity of Jane and Finch in Toronto on September 10, 2012. He was transported to the 55 Division police station where he later provided a videotaped statement to the lead investigator, Det. Sgt. Hank Idsinga. There were a number of pre-trial motions, including a motion by the Crown with respect to the voluntariness of Mr. Burnett’s statements and a motion by the defence to exclude the statements as having been obtained in breach of Mr. Burnett’s section 10(b) Charter rights. Both motions proceeded together, with the Crown calling evidence from a number of police officers who dealt with Mr. Burnett, as well as showing video-tapes of much of his contact with officers after his arrest.

[2] In his statements to the police, Mr. Burnett denied all knowledge of the shooting. He said that he was not familiar with the apartment building or the area of the city (Kingston Road and Main St.) where the incident occurred, did not know the deceased Mr. Campbell, and did not know a person named Jayna or “J.J.” who had been with Mr. Campbell when he was shot. He claimed to have been in the Jane/Finch area of Toronto, at the other end of the city, at the time of the shooting. When shown still photographs of the shooter caught on surveillance cameras at the scene, Mr. Burnett claimed not to recognize the man and denied that it was him. He also denied ever owning or wearing a jacket similar to the distinctive jacket worn by the shooter. When shown photographs of himself downloaded from YouTube wearing a similar jacket, he said he did not believe that was the same jacket. He also denied having a cell phone. When he was told that the shooter had a limp and that Det. Idsinga noticed that he also had a limp, Mr. Burnett said that was from the police tackling him and piling on top of him at the time of his arrest.

[3] Mr. Burnett was not telling the truth to the police. He knew Marcus Campbell and Jayna Badger. He did have a cell phone, and there were calls made between that cell phone and a phone owned by Jayna Badger prior to the shooting. He has a noticeable limp, a residual disability from having been shot in the hip a few years before. Even more significantly, Mr. Burnett acknowledges, and will admit at trial, that he was there that night and that he in fact shot Marcus Campbell. However, Mr. Burnett now maintains that he shot Mr. Campbell in self- defence.

[4] The Crown seeks to introduce Mr. Burnett’s various denials and lies to the police as part of its case in chief, as evidence of post-offence conduct inconsistent with someone who acted in self-defence.

[5] Following the evidence on the voir dire Mr. Burnett’s counsel fairly conceded that the Crown had met its onus of proving voluntariness. I agree. The statements made by Mr. Burnett were voluntary.

[6] However, the defence maintains that the statements should nevertheless be excluded because of the failure of the police to ensure that Mr. Burnett had a timely opportunity to contact a lawyer after his arrest. If Mr. Burnett’s Charter rights were not violated, his counsel concedes that they his statements are relevant to credibility and can be used to cross-examine Mr. Burnett in the event that he testifies at trial. However, the defence still maintains that the statements are not admissible as part of the Crown’s case because they are irrelevant, do not properly fall within post-offence conduct, and are more prejudicial than probative.

[7] Mr. Burnett’s denials of any involvement in the shooting of Marcus Campbell are admissible circumstantial evidence tending to rebut his assertion that he acted in self-defence. Any risk of prejudice can be averted by an instruction to the jury on the limited use that can be made of this evidence. I find that the police obtained the statements without any breach of Mr. Burnett’s constitutional rights. He was advised of his right to counsel five times and cautioned that anything he said could be used against him. Fully aware of the jeopardy he was facing and of his right to get legal advice, he freely chose to speak to Det. Idsinga and waived his right to speak to a lawyer first. For the reasons set out below, those statements are admissible.

B. CHARTER APPLICATION

(1) The Extent of the s. 10(b) Right to Counsel

[8] Section 10(b) of the Charter of Rights and Freedoms provides that, “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.”

[9] The first component of the s. 10(b) right is informational. The police are required to advise a person under detention that he has the right to speak to legal counsel. However, the s. 10(b) right does not end there. If the detained person requests an opportunity to speak to a lawyer, the police are under a further obligation to facilitate access to a lawyer without delay.[^1] Further, absent unusually urgent circumstances necessitating some investigative questioning, the police must cease all questioning until such time as the detainee has had the opportunity to consult with and obtain advice from counsel.[^2]

[10] Once a detainee invokes his right to counsel, but then indicates he has changed his mind, the onus is on the Crown to prove that there has been a clear and unequivocal waiver of the right. As stated by Lamer J. in R. v. Prosper:[^3]

Given the importance of the right to counsel, I would also say with respect to waiver that once a detainee asserts the right there must be a clear indication that he or she has changed his or her mind, and the burden of establishing an unequivocal waiver will be on the Crown: Ross, at pp. 11-12. Further, the waiver must be free and voluntary and it must not be the product of either direct or indirect compulsion. This Court has indicated on numerous occasions that the standard required for an effective waiver of the right to counsel is very high: Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, Manninen, and Evans. As I said in Bartle, at pp. 192-94 and 206, a person who waives a right must know what he or she is giving up if the waiver is to be valid.

[11] Although the standard to establish waiver is high, it remains a question of free choice for the individual detained. No person is required to speak to a lawyer before agreeing to be interviewed by police. Again, the words of Lamer J. in Prosper[^4] are apt:

That being said, it stands to reason that the right to counsel guaranteed under s.10(b) must not be turned into an obligation on detainees to seek the advice of a lawyer.

(2) Police officers repeatedly advised Mr. Burnett of his right to counsel

[12] Mr. Burnett was fully advised of his right to counsel and cautioned on five separate occasions, the first being immediately upon his arrest.

(i) Rights given upon arrest

[13] Mr. Burnett was arrested by D.C. Paramar at 7:30 p.m. on September 10, 2012 on the street in the vicinity of Jane and Finch. D.C. Paramar testified that he was in plainclothes but wearing a vest with the word “POLICE” in capital letters on the front and back. He took Mr. Burnett to the ground, placed him in cuffs and then returned him to his feet. D.C. Paramar testified that he immediately advised Mr. Burnett of his rights, reading from a card he made for himself and keeps at all times in his wallet. When asked on the voir dire about the content of what he told Mr. Burnett, D.C. Paramar removed the card from his wallet and read it. The text is exactly the same as the standard set of instructions and cautions from the back of the Toronto Police Service memo books, and indeed, that is where D.C. Paramar took it from. D.C. Paramar testified that Mr. Burnett appeared to be shocked and said nothing to any of the questions he asked in the course of reading him his rights.

[14] Det. Jude Lopes, the lead officer on the surveillance crew that was looking for Mr. Burnett, was the second person to arrive, mere seconds after D.C. Paramar arrested Mr. Burnett. Det. Lopes heard D.C. Paramar reading the rights to counsel, but did not listen closely and did not hear the responses.

[15] Mr. Burnett was almost immediately turned over to two uniformed officers from 31 Division for transport to 55 Division. Those officers, P.C. Hewitt and P.C. McIlhone, just happened to be in the nearby plaza on an unrelated call at the time of the arrest, saw it unfolding, and attended to offer assistance. P.C. Hewitt also heard D.C. Paramar advising Mr. Burnett of his rights.

[16] I find as a fact the arresting officer fully advised Mr. Burnett of his rights at the time of his arrest. Because the arrest happened quickly, however, it is possible that he did not fully understand what was being said to him.

(ii) Rights given again during transport

[17] Mr. Burnett was turned over to Officers Hewitt and McIlhone for transport at 7:32 p.m. and placed in the rear of their squad car. A video and audio recorder was engaged for the entire time Mr. Burnett was in the car.

[18] Mr. Burnett kept asking what this was about and what was going on. The transporting officers knew nothing about the charges, but undertook to find out. After making a phone call to a supervisor, they learned that the charge was homicide. Mr. Burnett claimed he had not been advised of his rights. P.C. Hewitt therefore read all of his rights to him again, including the right to counsel, the right to silence, and the caution that anything he did say could be used against him in court. All of this was recorded. It is clear that Mr. Burnett understood this process.

[19] After P.C. Hewitt advised Mr. Burnett of his right to counsel and told him about the 1-800 number through which he could contact legal aid duty counsel for free advice, he asked Mr. Burnett, “Do you wish to call a lawyer now?” The following exchange then ensued:

Burnett: I might as well. I don’t even know what the fuck is going on but like obviously a lawyer is gonna have to deal with the matter.

Officer: Okay, and do you have a lawyer you wish to call?

Burnett: No.

Officer: Do you have a name of a lawyer that you’ve dealt with that you wish to call?

Burnett: No I don’t.

Officer: Or would you like to speak with duty counsel?

Burnett: Well, I guess I’m gonna have to speak to duty counsel unless I talk to … I don’t even know one lawyer …

Officer: Okay well if you give us a name we can make efforts for you to get hold of that name first.

Burnett: Well, I guess we’re gonna have to get to the station before everything happens right?

Officer: Yeah, obviously that’s where you’ll be given your phone call.

Burnett: Okay so, one step at a time.

Officer: Okay so you let us know the name or whatnot and we’ll make efforts for you to make that phone call okay?

Burnett: Totally understandable, sir.

[20] There was a long drive from Jane and Finch to 55 Division at the extreme opposite end of the city. There was then a wait for access to the sally port in order to enter 55 Division.

[21] From the time he was placed in the squad car at 7:32 p.m. to the time he entered 55 Division 79 minutes later, everything Mr. Burnett said and did was recorded. He was treated with courtesy by the transporting officers throughout. He complained at times about the heat in the back seat and about his general discomfort, and at one point explained that this was because he had been shot in the hips and that his legs do not fold normally. Once or twice he mentioned not knowing what this was about, but the officers responded that they did not have any more information than he did.

(iii) Rights given again at booking

[22] The squad car pulled into the sally port at 8:51 p.m., and Mr. Burnett was removed from the back seat. This is also captured on video. It is apparent that Mr. Burnett is walking with a limp. From there, he was taken to booking, also recorded on audio and video. Mr. Burnett’s booking procedure started at 8:57 p.m.

[23] The booking sergeant went through all the usual questions with Mr. Burnett. When asked about his physical condition, Mr. Burnett reported an injury from when he was shot in the left hip at the age of 14, but denied any current injuries. The booking sergeant again advised Mr. Burnett of the charge against him and of his rights, including his right to counsel. He was asked if he understood and he said that he did. The sergeant told him that he was entitled to reasonable use of a phone and that if he wished to do that he should advise either the officers who brought him in or the officer in charge of the investigation. Mr. Burnett was then searched off camera and his personal effects were placed in a clear plastic bag. He asked if he could have the juice box that had been in his pocket at the time he was arrested and the sergeant told him that would be no problem once he was upstairs.

[24] Officers Hewitt and McIlhone escorted Mr. Burnett upstairs to the Major Crime Unit and placed him in Interview Room 2 at approximately 9:12 p.m. They spoke to Det. Hank Idsinga, the homicide officer in charge of the investigation, and advised him that Mr. Burnett had previously expressed a wish to speak to counsel. Det. Idsinga said he would take care of it.

[25] During the time that Mr. Burnett was with Officers Hewitt and McIlhone at the police station, he never asked to use the phone in order to call a lawyer.

(iv) Rights given again by Det. Idsinga

[26] Det. Idsinga entered Interview Room 2 to speak to Mr. Burnett at 9:47 p.m. He activated a small audio recorder before going in and recorded all of his interactions with Mr. Burnett. Upon entering the room, he introduced himself to Mr. Burnett and told him he was there to get some preliminary paperwork done and to get Mr. Burnett in contact with a lawyer. Mr. Burnett immediately said that he did not know what was going on. Det. Idsinga asked him if he knew what he was under arrest for and Mr. Burnett said that some officer had explained it but that all he said was it was a homicide. Det. Idsinga told Mr. Burnett he was under arrest for a murder that had occurred on Saturday night in 55 Division. When Mr. Burnett started to say something, the detective cut him off and asked if he had been advised of his rights and understood his rights to counsel. Mr. Burnett answered in the affirmative, but Det. Idsinga nevertheless told him that he was going to go through it with him again. After going through the right to counsel, Det. Idsinga asked Mr. Burnett if he understood and he replied that he did. The following discussion then occurred:

Idsinga: Do you wish to call a lawyer right now?

Burnett: I guess so. Like I don’t know what’s going on.

Idsinga: Okay. Well, I can explain to you what’s going on but if you want to talk to a lawyer first you can talk to a lawyer first.

Burnett: I don’t. Like I said, you might as well explain to me but I really don’t know what’s going on.

[27] Det. Idsinga then told Mr. Burnett he was being charged with first degree murder. He asked Mr. Burnett if he wanted to say anything in relation to the charge, told him of his right to remain silent, and cautioned him that anything he said could be given in evidence against him. Again Mr. Burnett responded that he did not know what was going on. Det. Idsinga repeated, “You don’t have to talk to answer any of my questions is the bottom line.” Mr. Burnett responded, “I just don’t know what’s going on, that’s what I’m saying to you.” He then asked Det. Idsinga to explain it to him.

[28] Det. Idsinga told Mr. Burnett that the murder happened on Saturday night at 11:15 at Main Street and Kingston Road and that through his investigation he believed the murder had been committed by Mr. Burnett. The conversation then continued:

Idsinga: And you’re shaking your head no. And I wanna talk to you about it. And I’ll show you some things about it. Okay? But if we’re gonna do that, we’re gonna go to another room and do that. But you should probably speak to a lawyer first before we do that, and that lawyer’s gonna tell not to answer any of my questions. Okay?

Burnett: I don’t have a lawyer present so I might as well just see what the hell you’re talking well and just like at least get an understanding of what’s going on. I don’t know what’s going on. You’re telling me this, which is totally understandable. That’s your job to do that. But like I don’t understand what’s going on – then like I won’t like you know what I mean? Like I just don’t understand.

Idsinga: The decision is yours Andrew. I can take you to the other room; we have a video camera in there. I’ll sit down and show you some things and explain what’s going on. Or we can call a lawyer first. Or we can call a lawyer afterwards. At any point in time if you wanna call a lawyer we can call a lawyer.

Burnett: Can I see what you’re talking about and then like, I just wanna understand. If you could help me understand then I could help you with whatever you need. I just don’t understand what’s going on.

Idsinga: So do you wanna see what I’m talking about . . .

Burnett: Please and thank you.

Idsinga: before we call a lawyer?

Burnett: Please and thank you.

[29] Det. Idsinga then told Mr. Burnett that he would go and get the other interview room set up. However, he first asked Mr. Burnett for some biographical information for the record of arrest, including: full name; nickname; marital status; height; weight; tattoos; scars; and cell or business phone number. Mr. Burnett supplied his mother’s home phone number.

[30] Mr. Burnett then asked if he could have the juice box from his property bag and Det. Idsinga told him he would get it and bring it to the interview room.

(v) Rights given a second time by Det. Idsinga

[31] Mr. Burnett was brought into the interview room at 10:13 p.m. From that point on, there was both an audio and video recording of everything that transpired. He was given his juice box. Det. Idsinga then again went through an explanation of Mr. Burnett’s rights. This would be the fifth time he had been advised of his right to counsel. After being advised of his right to counsel, Mr. Burnett was asked, “Do you want to call a lawyer now?” He responded by asking if any lawyers would come to the police station. Det. Idsinga told him that lawyers would not generally come to the station but that he could be put in contact with a lawyer on the phone right away before continuing with the interview. Mr. Burnett then stated:

That’s no problem if you can get one here, but if not just like I said can you just further tell me like what’s going on here and then from there we could take steps. I don’t know what’s going on so like, you keep saying this I’m like trying.

[32] Det. Idsinga then repeated to Mr. Burnett that if at any time he wanted to call a lawyer, including right then, they would call a legal aid lawyer for him. Mr. Burnett then asked if Det. Idsinga would “explain stuff” to him while the lawyer was on the phone and Det. Idsinga told him, “No.” At that point, Mr. Burnett said:

Exactly, so like I said, can you just explain to me what’s going on here and then I’ll talk to the lawyer, the duty counsel later. Please and thank you.

[33] Det. Idsinga said that could be done, but that first he needed to make sure Mr. Burnett understood his rights. The following conversation ensued:

Burnett: Yeah, I know, you’re giving me my rights.

Idsinga: Because, whatever we talk about is someday gonna be played in court.

Burnett: Totally understandable.

Idsinga: And for it to be played in court, I have to explain certain things to you and you have to understand your rights.

Burnett: Yes sir.

Idsinga: You have to understand that you don’t have to say anything to me. You don’t have to answer my questions. And you can call a lawyer, a free lawyer, for free legal advice any time you want.

Burnett: Okay.

Idsinga: Okay? You understand that?

Burnett: Yes sir.

Idsinga: Okay. Do you wanna call a lawyer right now?

Burnett: No, not as right now sir.

[34] Det. Idsinga then again fully cautioned Mr. Burnett that he was not obliged to say anything at all in answer to any questions asked of him, and Mr. Burnett stated that this was “totally understandable” to him.

[35] Det. Idsinga then proceeded to tell Mr. Burnett about the time and place of the shooting and the name of the person killed. Mr. Burnett professed not to know Marcus Campbell. He said he was in the area of Jane and Finch at the time of the shooting. Det. Idsinga showed Mr. Burnett still photographs of the shooter taken from the video footage from the apartment building’s security camera. Mr. Burnett denied that the individual depicted was him and denied ever owning or wearing the very distinctive jacket worn by the shooter. When shown photographs of himself downloaded from YouTube, he denied that the jacket he was wearing was the same as the one worn by the shooter. He also denied having a cell phone and denied knowing a girl named “Jayna” or “J.J.”

[36] Having presented this information to Mr. Burnett and having obtained Mr. Burnett’s response to some of it, Det. Idsinga said, “That in a nutshell is why you are here.” He told Mr. Burnett that he has said a few things that help out a little, to which Mr. Burnett responded, “That’s not a lie.” Mr. Burnett then stated that “now with everything shown and what you’re telling me, I pretty much should just sit down and go call my lawyer.” At that point, all questioning ceased. Mr. Burnett was given the opportunity to speak to a lawyer and also, at his request, to call his mother.

3. Mr. Burnett was given the opportunity to call a lawyer before speaking to police

[37] The defence accepts that the police fulfilled their obligations in respect of the informational component of right to counsel, but argues that the police failed at the implementation stage to give Mr. Burnett a reasonable opportunity to speak to counsel.

[38] In my view, in the circumstances of this case, the implementation requirement did not arise at all until Mr. Burnett arrived at the police station. In particular, I do not agree with the defence suggestion that it would have been appropriate to turn off the recording device in the police car so that Mr. Burnett could speak with a lawyer in the privacy of the vehicle. First of all, the recording protects the rights of the accused. Anything said by either the officers or the detainee will be fully recorded so there can be no dispute later about who said what to whom and in what manner. Secondly, the only phone available was the personal cellphone of an individual officers. A police officers cannot be expected to turn over his personal cellphone to an accused in custody. That would be a gross violation of the personal privacy of that officer. There was no urgency to this situation. Mr. Burnett was fully advised of his rights before and immediately after he got into the car and he was not interrogated about the offence by the officers who were transporting him. Apart from biographical information, which is of no consequence, anything said by Mr. Burnett was volunteered by him without any prompting from the officers. The transporting officers did everything that was required of them and did not breach any of Mr. Burnett’s rights. The one exception is the questions asked of Mr. Burnett about whether he had a cell phone. This was not necessary information for the officers, was potentially incriminating to Mr. Burnett, and was asked before he had an opportunity to speak to counsel. Apart from that, anything said by Mr. Burnett in the police car was not obtained in breach of his Charter rights.[^5]

[39] The defence further argues that at a minimum, Mr. Burnett should have been given access to the phone that is in the room adjacent to the booking hall. That could possibly have been done if Mr. Burnett gave any indication at that time that he wished to make a call. He was told by the booking sergeant that he could have the reasonable use of a phone and that if he wanted to take advantage of that opportunity, he should tell either the two officers who were accompanying him or the officer in charge of the investigation. Those two officers searched him, took charge of his personal effects, and then escorted him to an interview room upstairs in the station. At no time did Mr. Burnett tell those officers that he now wanted to use a phone. When the officers turned Mr. Burnett over to the lead investigator, they advised him that Mr. Burnett wished to speak to a lawyer and had not yet done so. Det. Idsinga said he would take care of it. Those two officers had no role in the investigation, and were not even attached to 55 Division. They were merely transporting Mr. Burnett because they happened to be at the scene of the arrest with a marked scout car. Upon advising the investigating officer of the situation with respect to Mr. Burnett’s right to counsel, they had fulfilled everything required of them.

[40] Det. Idsinga tape recorded every encounter he had with Mr. Burnett, which is ideal police practice and of great assistance to the court. There can be no question of precisely what was said and the nuance of it. When Det. Idsinga entered the room to speak to Mr. Burnett, he told him he was there for two reasons: (1) to get some details for the record of arrest; and (2) to get him in touch with a lawyer. Quite correctly, the first issue he addressed was the right to counsel. Although Mr. Burnett said at first that he would call a lawyer because he did not know what he wanted to do, he subsequently changed his mind and said he wanted to hear what Det. Idsinga had first. Det. Idsinga was very clear with Mr. Burnett that he only had to say the word and he would immediately be put in touch with a lawyer. He even told Mr. Burnett that if he did speak to a lawyer the lawyer would probably tell him not to talk to the police. He gave Mr. Burnett a clear opportunity to call a lawyer. Mr. Burnett did not take advantage of that opportunity.

[41] Det. Idsinga told Mr. Burnett that he was prepared to sit down with him and go through some things with him, but he would only do that in the interview room equipped with a video camera. That was completely appropriate, is good police procedure, protects the rights of Mr. Burnett, and ensures a proper record for the court. He gave Mr. Burnett the opportunity to call a lawyer before that process, and Mr. Burnett declined.

[42] Before going to the video room, Det. Idsinga elicited some information from Mr. Burnett for the purpose of completing the record of arrest. For the most part, this was typical biographical and background information such as next of kin, height, weight, citizenship status and the like. However, there were two pieces of information that were potentially incriminating to Mr. Burnett: whether he had a nickname and whether he had a cell phone. Having obtained the background information from Mr. Burnett, Det. Idsinga then took him to the video room and the formal interview began.

4. Mr. Burnett waived his right to speak to a lawyer

[43] I find that the Crown has met its onus of establishing that Mr. Burnett waived his right to obtain advice from a lawyer prior to speaking to the police, recognizing that the onus is a high one.

[44] From the outset, even in the squad car en route to the police station, Mr. Burnett was repeatedly trying to get information from the police. He was told that the charge against him was a homicide and that the transporting officers had no other information, but he still kept up his complaint about not knowing what was going on. Indeed, even when he first invoked his right to get advice from counsel it was in this context, stating, “I might as well. I don’t even know what is going on.” Likewise, when Det. Idsinga first told him that he would put him in contact with a lawyer if he wanted to talk to one, Mr. Burnett’s response was “Um, I guess. I don’t even know what’s going on.” Again, just seconds later, after being given the rights to counsel and asked if he wanted to call a lawyer, he said, “I guess so. Like I don’t know what’s going on.” This was a theme to which he kept returning, over and over again.

[45] There was no obligation on Det. Idsinga to provide disclosure of the police case against Mr. Burnett at this stage. All that was required was that Mr. Burnett know the jeopardy he was facing, the nature of the charge against him, and what his rights were. He clearly understood these things. But he wanted to know more. He wanted to know what the police had on him. He was not entitled to that level of information in order to make an informed decision as to whether or not to exercise his right to speak to counsel.

[46] The Supreme Court of Canada dealt with this issue in R. v. Smith as follows:[^6]

These cases establish that, regardless of whether the focus is on the sufficiency of the initial s. 10 (b) advice or on the waiver, what is required is that the accused understand generally the jeopardy in which he or she finds himself and appreciate the consequences of deciding for or against counsel. They rest on the common sense proposition that sometimes a lawyer is more important than at other times. Many might choose to do without counsel on a traffic charge. Many fewer would make the same decision if faced with murder.

It has never been suggested, however, that full information is required for a valid waiver. Indeed, if this were the case, waivers would seldom be valid, since the police typically do not know the whole story when the accused is arrested. Nor is the failure of the police to precisely identify the charge faced in the words of the Criminal Code necessarily fatal. In the initial stages of an investigation the police themselves may not know the precise offence with which the accused will be charged. Moreover, the words of the Code may be less helpful to a lay person than more common parlance in communicating the extent of jeopardy. Finally, the degree of awareness which the accused may be reasonably assumed to possess in all the circumstances may play a role in determining whether what the police said was sufficient to bring home to him the extent of his jeopardy and the consequences of declining his right to counsel.

The question reduces to this: in this case was the accused possessed of sufficient information to make his waiver of counsel valid? To my mind, to establish a valid waiver of the right to counsel the trial judge must be satisfied that in all the circumstances revealed by the evidence the accused generally understood the sort of jeopardy he faced when he or she made the decision to dispense with counsel. The accused need not be aware of the precise charge faced. Nor need the accused be made aware of all the factual details of the case. What is required is that he or she be possessed of sufficient information to allow making an informed and appropriate decision as to whether to speak to a lawyer or not. The emphasis should be on the reality of the total situation as it impacts on the understanding of the accused, rather than on technical detail of what the accused may or may not have been told. [Emphasis added.]

[47] Thus, Det. Idsinga was under no obligation to show Mr. Burnett what he had before Mr. Burnett could be regarded as in a position to waive his right to counsel. Before he even went into the interview room, Mr. Burnett knew that he was being charged with first degree murder in connection with an incident on September 8, 2012 in the area of Main Street and Kingston Road. He was also told that he could have further information and was given the option of speaking to a lawyer first, or of speaking to a lawyer after, or of interrupting and calling a lawyer at any time during the interview. He elected to speak to the police first and call a lawyer later. Having made that election, he answered some questions, including about his cell phone and nickname. He was then taken to the interview room and the video camera was turned on.

[48] His rights were then explained to him again on video-tape and he was re-cautioned about the right to remain silent. At that point, Mr. Burnett raised the possibility of having a lawyer present with him, or having the lawyer on the other end of the phone as he was being interviewed by the police. Det. Idsinga told him that this would not be accommodated. An adult accused in this jurisdiction is not entitled to have a lawyer present during questioning by police.[^7] Det. Idsinga’s refusal to provide this was not an infringement of Mr. Burnett’s rights, nor did it interfere with his freedom to choose whether he wanted to talk to a lawyer before being interviewed by Det. Idsinga. Again, he was given a clear choice, he knew what his rights were, and he knew the jeopardy he was facing. He was again asked if he wanted to speak to a lawyer right then and there before proceeding. He clearly and unequivocally declined that opportunity.

[49] He was never given an ultimatum. It was never suggested to him that no further information would be given to him unless he waived his right to counsel. Det. Idsinga was careful to ensure that Mr. Burnett could avail himself of the opportunity to speak to a lawyer before, during, or after the interview. As soon as Mr. Burnett felt he had all of the information the police were going to give him, he invoked his right to counsel, and the police immediately complied with that request.

[50] Mr. Burnett made a free, informed choice to Det. Idsinga before calling a lawyer. He knew that he could have talked to a lawyer first. He knew the nature, and indeed many of the details of the charge against him. He knew that anything he said could be used against him. It is not mandatory that detainees speak to a lawyer before speaking to police; they have freedom of choice. As stated by Lamer J. in Prosper, “the s. 10(b) right to counsel must not be turned into an obligation on detainees to seek the advice of a lawyer.”[^8]

[51] This issue arose in a similar factual context in R. v. W.M., in which the accused in a sexual assault case was given the standard cautions and asked if he wanted to call a lawyer. He said he wanted to listen to what the police had to say and then call a lawyer later. After the police officer outlined the allegations, he asked the accused if he had any questions, at which point the accused said he wanted his lawyer present. The interview was adjourned to allow the accused to call his counsel of choice. That lawyer was not available, but he did speak to a legal aid duty counsel. Upon the interview resuming, the accused acknowledged he had received “proper legal instruction.” When asked if he wanted to say anything in response to the charges he stated he wanted his lawyer present. The officer explained that they would not be doing that, nor would they be bringing him back on a later occasion to give him an opportunity to speak to them with his lawyer present. The officer then asked the accused some questions, which the accused answered. The trial judge relied on some of those answers in making adverse credibility findings against the accused. The Court of Appeal found no breach of the Charter in those circumstances. The accused was not entitled to have a lawyer with him at questioning, and had spoken to duty counsel. The Court of Appeal held, at para. 18:

Finally, there is nothing in the transcript of the interview from which I can find that the appellant’s right to choose was overborne by any police conduct. The appellant said he had received proper legal advice. He had been interviewed by this same officer in relation to the other charge. He was aware of his rights, but for reasons of his own chose to answer the officer’s questions. Since the appellant has not established any violation of his Charter rights this ground of appeal must fail. [Emphasis added.]

[52] Unlike Mr. Burnett, the accused in W.M. did speak to counsel before speaking to the police. However, the same general principle applies. Mr. Burnett, like the accused in W.M., chose to listen to what the police had against him and in the course of that interview, knowing his rights, answered questions put to him. He did so after waiving his right to speak to counsel; W.M. did so after speaking to duty counsel. Otherwise, the circumstances are similar.

[53] Mr. Burnett exercised his freedom of choice and clearly rejected the opportunity to speak to counsel before speaking to Det. Idsinga. He knew that anything he said could be used against him in court. He chose to speak, thereby waiving his right to counsel.

5. Conclusion: No breach of s. 10(b)

[54] I find no breach of s. 10(b) of the Charter in relation to the statements made by Mr. Burnett.

[55] With respect to the statements in the police car, Mr. Burnett was advised of his rights, there was no reasonable opportunity to provide him with access to a phone to call counsel, and once he invoked his right to counsel, there was no questioning by the officers. Anything Mr. Burnett said was uttered spontaneously by him. The questioning about the cell phone might possibly fall into a separate category. However, nothing really turns on it given that Mr. Burnett volunteered that information later, after he had been given the opportunity to speak to a lawyer, but had waived it.

[56] With respect to the formal video-taped interview, Mr. Burnett was fully informed of his rights to counsel and was given a reasonable opportunity to speak to a lawyer. He elected to forego that opportunity until after he had obtained more information from the police. He was cautioned that he had the right to remain silent and that if he did speak, anything he said could be introduced in evidence against him. He waived his rights to counsel, and then elected to speak to the police, denying any involvement. He may have thought that denials could not be used against him. He may not have acted wisely. However, the police did nothing improper and there was no breach of Mr. Burnett’s constitutional rights.

[57] The defence application to exclude the statements made to the police as having been obtained in breach of Mr. Burnett’s rights under the Charter is therefore dismissed.

[58] It follows that if Mr. Burnett chooses to testify in this case, he may be cross-examined on any prior inconsistent statements made to the police. Whether the statements may be introduced as part of the Crown’s case depends on whether they are properly admissible as post-offence conduct, which is dealt with below.

C. POST-OFFENCE CONDUCT

1. The issue

[59] The Crown seeks to introduce the lies Mr. Burnett told the police as evidence inconsistent with his having acted in self-defence.

[60] Generally speaking, after-the fact-conduct is admitted to show that an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person.[^9] There is no limit to what kind of conduct might potentially give rise to an inference of guilt. However, throughout the case law, the two most common examples of post-offence conduct are fleeing from the scene and lying to the police (including, but not limited to, the fabrication of an alibi).

[61] In the case before me, it is acknowledged that Mr. Burnett told a number of lies to the police, including that: he was not present at the time of the shooting; he was in another area of the city at the time of the shooting; he had no involvement in the shooting; he did not know the victim or a girl named Jayna or J.J.; and, the person shown on the apartment building security camera was not him. This is a classic example of the kind of after-the-fact conduct that is often presented to a jury as conduct inconsistent with the accused being innocent of the crime charged. The defence does not challenge this basic premise. However, the defence argues that because Mr. Burnett was in possession of a loaded prohibited firearm, his after-the-fact denials of involvement are equally consistent with his hope of avoiding responsibility for that offence as with seeking to avoid responsibility for murder. The defence relies in that regard on R. v. Arcangioli, R. v. White (1998), and R. v. White (2011).[^10]

[62] The central issue for me to determine is whether this is an issue of weight to be left to the jury or whether the evidence is incapable of having any probative value such that it should not be admitted at all. Even if the evidence is otherwise admissible, I must still consider whether its probative value is outweighed by its prejudicial impact before actually admitting it into evidence.

2. Relevant case authority

[63] Evidence of post-offence, or after-the-fact, conduct is merely a form of circumstantial evidence from which the trier of fact may, but is not required to, draw an inference of guilt. The Supreme Court of Canada has ruled that it is not subject to any “special rule,” but rather it is to be considered along with all of the other evidence in the case in determining whether the Crown has proven the charge against the accused.[^11]

[64] Depending on the circumstances of any given case, it may be necessary to provide cautions or limiting instructions to the jury with respect to how the after-the-fact evidence can be used. However, the general rule is that this evidence goes before the jury and the question of weight is left to the jury to determine. Justice Binnie held in White (2011):[^12]

. . . The general rule is now, as in the past, that it is for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct put in evidence against the accused is related to the commission of the crime before them rather than to something else, and if so, how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury’s exclusive fact-finding role.

[65] There are circumstances where, as a question of law, it is simply not possible for the jury to draw an inference of guilt from the conduct in question. If that evidence is admissible for some other purpose, or merely goes in as part of the narrative, then the trial judge is required to give a “no probative value” instruction. However, if the sole purpose of tendering the evidence is to support such an inference, then the evidence should not be introduced at all. Typically, these cases involve situations where the actus reus is admitted and some crime is involved, with the issue being the level of intent as between one offence and another (e.g. the difference between manslaughter and second degree murder).

[66] In R. v. Arcangioli the accused fled from the scene of a stabbing and was subsequently charged with aggravated assault. He admitted that he had been part of a group of people who assaulted the victim, that he had punched him, and that he was guilty of common assault. However, he denied stabbing the victim and maintained that he was not guilty of aggravated assault. The evidence of flight was admitted at trial, along with an instruction from the trial judge that even innocent people sometimes flee the scene of a crime. The Supreme Court held that this was insufficient and that the jury should have been instructed not to draw any inference from the fact of flight. The underlying principle was stated succinctly by Major J. at p. 145, as follows:

The test articulated in Myers provides helpful guidance on the inferences that may be drawn from evidence of an accused’s flight (or other possible indicia of consciousness of guilt, such as lying). Such evidence can serve the function of indicating consciousness of guilt only if it relates to a particular offence. Consequently, where an accused’s conduct may be equally explained by reference to consciousness of guilt of two or more offences, and where an accused has admitted culpability in respect of one or more of these offences, a trial judge should instruct a jury that such evidence has no probative value with respect to any particular offence. [Emphasis added.)

[67] The Supreme Court of Canada elaborated further on this principle in R. v. White (1998), confirming that a “no probative value” instructions is appropriate where “the accused has admitted to committing the actus reus of a criminal act but has denied a specific level of culpability for that act, or has denied committing some related offence arising from the same operative set of facts.” Justice Major, writing for the unanimous Court, reasoned that, “In such cases, the participation of the accused in the culpable event is not at issue; the question to be decided is merely the extent or legal significance of that participation.”[^13]

[68] The Court held in White (1998)[^14] that a “no probative value” instruction would be required only in those limited circumstances and that as a general rule, the issue should be left to the jury with instructions on how to use it properly.

As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury’s exclusive fact-finding role. Consequently, a “no probative value” instruction like the one required in Arcangioli will be called for only in limited circumstances.

[69] The two accused in White (1998) were charged with first degree murder in connection with an execution style shooting in the Ottawa area in which the victim was shot with two different weapons. Subsequently, they left Ottawa, committed two bank robberies (using the same weapons), fled from police, and attempted to throw away one of the murder weapons. This evidence was admitted by the trial judge as post-offence conduct. The jury was instructed to take into account alternative explanations for such conduct (including that the flight and concealment could have been because the accused were parole violators and had committed robberies). The Supreme Court of Canada upheld the convictions and, in particular, ruled that in these circumstances the trial judge was not required to instruct the jury that the post-offence conduct had no probative value.

[70] Of particular relevance to the case before me is the further elaboration of these principles by the Court at para. 32 as follows:

. . . The result will always turn on the nature of the evidence in question and its relevance to the real issue in dispute. It is possible to imagine cases in which evidence of post-offence conduct could logically support a distinction between two levels of culpability for a single act, or between two offences arising from the same set of facts. By way of illustration, where the extent of the accused’s flight or concealment is out of all proportion to the level of culpability admitted, it might be found to be more consistent with the offence charged. Post-offence conduct might also be relevant in cases where the accused has admitted to committing a physical act but asserts that the act was justified in some way; in those circumstances, an act of flight or concealment might constitute some evidence from which, along with other evidence, the jury could infer that the accused was conscious that he or she had committed a culpable act and had not, for example, acted in self-defence.

[71] A companion case to White (1998) is the Supreme Court’s decision in R. v. Menard,[^15] which was released at the same time. In Menard the accused was charged with murdering a taxi-driver. Initially, Menard was found attempting to conceal a stolen taxi-cab. He gave the police a story about how he came into possession of the cab, but later gave a different version. When the body of the cab driver was found, Menard was charged with murder. The defence argued that his acts of concealment and lies to the police were equally consistent with his being in possession of the stolen taxi. However, the Supreme Court of Canada, relying on its analysis in White (1998), held that this was an issue for the jury and that there was no requirement for a “no probative value” instruction. Although the specific paragraph of White (1998) is not referenced, it seems reasonable to conclude that the paragraphs to which I have referred above are relevant, particularly with respect to the degree of concealment and lying being out of all proportion to the level of culpability admitted.

[72] A further nuance arose in R. v. White (2011). In that case, the accused, while in possession of a loaded handgun, had been involved in a physical altercation with the victim. In the course of the struggle, the gun went off, killing the victim. Without hesitation or uncertainty, the accused immediately fled the scene. He was charged with second degree murder. He ultimately admitted having caused the death of the victim, conceding manslaughter, but denied that he acted deliberately. The Supreme Court of Canada was unanimous that the act of flight, by itself, was equally consistent with both manslaughter and murder and therefore of no probative value. However, the Court split on the probative value of the lack of hesitation. The majority held that the lack of any hesitation or shock by the accused could be one piece of circumstantial evidence for the jury to take into account in determining whether the accused acted deliberately. Therefore, this was an issue properly left to the jury and should not be the subject of a “no probative value” instruction. Justice Rothstein, writing for the majority, held as follows at paras. 66-68:

However, this case is distinguished from Arcangioli on the facts. The conduct alluded to by the Crown is not the flight itself, but rather Mr. White’s failure to hesitate after his gun was fired into Mr. Matasi’s chest before he fled the scene. This is different from the question at issue in Arcangioli, which concerned the simple act of fleeing from the scene. In that case — as, indeed, in this one — the mere fact that the accused fled the scene did not provide any information as to whether he was guilty of the lesser or the greater charge. However, in this case, the fact that Mr. White failed to hesitate at the discharge of his firearm into another person’s chest does potentially provide such information.

As a matter of logic and human experience, one would expect an ordinary person to present some physical manifestation, such as hesitation, at a gun in their hand accidentally discharging into someone’s chest, thereby killing them. It was open to the jury to infer that a failure to react in this way was incongruous with the theory, advanced by the defence, that the gun went off by accident as the two men struggled with each other. To use the language of Arcangioli and White (1998), lack of hesitation was not “equally consistent with” or “equally explained by” accidentally as opposed to intentionally shooting the victim. It is less consistent with accident. Thus, the evidence that Mr. White did not hesitate when the gun was fired in response to this unexpected and calamitous turn of events supports an inference that he deliberately pulled the trigger.

Again, this case is not simply a replay of Arcangioli. In my view, there is a meaningful difference between the following two questions:

Would the accused have been equally likely to flee the scene whether he was guilty of murder or of manslaughter? (in Arcangioli)

Would the accused have been equally likely to hesitate before fleeing had he shot the victim intentionally or accidentally? (in this case)

3. Analysis: There is some probative value

[73] In the case before me, Mr. Burnett admits shooting Marcus Campbell, but does not admit any culpability for that act, maintaining that he acted in self-defence. If he had admitted unlawfully causing Mr. Campbell’s death, such that the only issue for the jury would be the level of his intent, then I would apply White (1998) and Arcangioli and find the after-the-fact evidence inadmissible. However, the situation is different when Mr. Burnett denies any criminal responsibility for what happened.

[74] The Court of Appeal’s decision in R. v. Peavoy[^16] deals with this very issue. In that case, the accused admitted stabbing the deceased, but claimed he acted in self-defence, or alternatively, was too intoxicated to form the specific intent required for murder. After the event, he washed the knife, cleaned up the scene, hid from the police, and denied his involvement in the killing. The Court of Appeal held that this after-the-fact conduct had some relevance to the issues of self-defence and intoxication, but could not be used to decide whether the offence was manslaughter or murder. The Court held at para. 34:

. . . Unlike the situation in Arcangioli, supra, the appellant did not admit culpability for any act. Given the appellant's admission that he had stabbed Mr. George, the after-the-fact circumstantial evidence had no relevance with respect to the commission of the physical act. Although the appellant admitted to stabbing the deceased, he did not admit that he had committed any culpable act but testified that he had acted in self-defence. In these circumstances, the after-the-fact conduct was some evidence from which, along with other evidence, the jury could infer that the appellant was aware he had committed a culpable act and had not acted in self-defence. If the jury concluded that the appellant had committed a culpable homicide, the evidence could not be used as evidence that the appellant intended to commit murder as opposed to manslaughter. However, because the defence contended that the Crown had not proven the requisite intent for murder due to the appellant's drinking throughout the day and at the time of the killing, the after-the-fact conduct could be used in support of the inference that, despite the appellant's intoxication, he had sufficient awareness to have formed the requisite intent for murder. The evidence suggested a relatively high level of cognitive functioning and purposeful conduct which could be viewed as antithetical to intoxication. [Emphasis added.]

[75] The after-the-fact lies told by Mr. Burnett to the police are some evidence that could support an inference that he acted in a manner that is inconsistent with self-defence. There may be other explanations for this conduct as well. One of those explanations might be that Mr. Burnett did not want to be associated with an illegal firearm. Another explanation might be that he was in breach of a probation order or bail term. However, the fact that other explanations might exist does not mean that this evidence must be taken from the jury. As stated by the Court of Appeal in R. v. Rodgerson:[^17]

Post-offence conduct need not point to only one reasonable inference to be relevant and admissible to prove a fact in issue. If the inference urged by the Crown is reasonably available, the post-offence conduct will be left with the jury who, after considering any competing inferences available, will determine what effect, if any, should be given to the post-offence conduct evidence: R. v. Allen, 2009 ABCA 341, 15 Alta. L.R. (5th) 1, at paras. 67-68, aff’d, 2010 SCC 42, [2010] 2 S.C.R. 648.

[76] This is not a situation, such as in White (1998), where the only choice for the jury is as between different levels of criminal intent for the same act. Here, different offences are involved, one (murder) which is far more serious than any other. In my gate-keeper role at this stage, it is not my function to decide whether the jury should draw a particular inference. Whether such an inference is to be drawn is a question of fact for the jury.

[77] I bear in mind that there is an onus on the Crown to disprove self-defence. In this context, it is proper for the Crown to present circumstantial evidence that is relevant to whether an accused person acted in a manner from which an inference of guilt could be drawn. I therefore find that Mr. Burnett’s after-the-fact conduct in lying to the police has some probative value for the Crown’s case.

4. Possible prejudice does not outweigh probative value

[78] The defence submits that permitting the Crown to tender the evidence as part of its case in chief is prejudicial because it paints Mr. Burnett as a liar before he even testifies, and may force him to testify in order to provide an explanation for his conduct.

[79] I recognize that Mr. Burnett might prefer to have his version of the facts before the jury before there is any evidence that he initially lied to the police about it. However, that is not the kind of prejudice that I would recognize as warranting a decision to keep relevant evidence from the jury. This merely flows from the fact that the burden is on the Crown and the Crown cannot know at this stage whether or not Mr. Burnett will testify. If Mr. Burnett testifies and gives a different version of the events than what he gave to the police, then he can be cross-examined as to his prior inconsistent statements on the subject. Whether or not the Crown puts those statements in as part of its case in chief is only a matter of timing.

[80] I also recognize that in the face of the Crown evidence of how he conducted himself after-the-fact, there may be additional pressure on Mr. Burnett to testify in his own defence. There may not be any other way, apart from mere speculation, to put before the jury other possible explanations for Mr. Burnett’s conduct. However, this risk is more apparent than real. Mr. Burnett intends to take the position that he acted in self-defence. Mr. Campbell did not have a gun. He had a knife, but there is no evidence that it was ever drawn in front of Mr. Burnett. As a practical matter, it would be very difficult for the jury to find Mr. Burnett acted in self-defence without affirmative evidence to that effect, which would almost inevitably have to come from Mr. Burnett.

[81] Mr. Burnett admits shooting and killing Mr. Campbell. If the jury finds that Mr. Burnett did not act in self defence, he will be guilty of culpable homicide. However, the jury will still have to decide his level of intent, and in particular whether his offence is first degree murder, second degree murder or manslaughter. The after-the-fact evidence is clearly not relevant to that issue. It is always possible to admit evidence for one purpose while telling the jury that they cannot take it into account for any other purpose. If a clear direction is given to the jury in this regard, I am confident they will respect it and not use that evidence for a prohibited line of reasoning.

[82] Accordingly, I find that the evidence has some probative value. If there is any prejudice, it is minimal, and is easily outweighed by the probative value.

D. CONCLUSIONS

[83] Accordingly, the defence motion to exclude the statements made by Mr. Burnett to the police is dismissed. The Crown may enter those statements as evidence of after-the-fact conduct relevant to the issue of whether Mr. Burnett acted in self-defence. If Mr. Burnett testifies, he may be cross-examined as to any prior inconsistent statements that he made to the police. Otherwise, the fact that Mr. Burnett lied to the police is irrelevant to his guilt or innocence of the offence charged and the jury will be given a “no probative value” instruction on that issue.

MOLLOY J.

Released: February 2, 2015

CITATION: R. v. Burnett, 2015 ONSC 745

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ANDREW BURNETT

Defendant

REASONS FOR JUDGMENT

Molloy J.

Released: February 2, 2015

[^1]: R. v. Taylor, 2014 SCC 50, [2014] S.C.J. No. 50, at paras. 24-25.

[^2]: R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at para. 23; R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236.

[^3]: R. v. Prosper, at pp. 274-75.

[^4]: R. v. Prosper, at p. 275.

[^5]: R. v. Yaeck (1991), 1991 CanLII 2732 (ON CA), 6 O.R. (3d) 293, 68 C.C.C. (3d) 545 (Ont. C.A.), at para. 61, leave to appeal to S.C.C. refused, [1992] S.C.C.A. No. 36; R. v. Abdullah, 2013 ONCA 372, [2013] O.J. No. 2566, at paras. 7-9.

[^6]: R. v. Smith, 1991 CanLII 91 (SCC), [1991] 1 S.C.R. 714, at pp. 728-29.

[^7]: R. v. W.M. (1999), 1999 CanLII 2695 (ON CA), 133 C.C.C. (3d) 168 (Ont. C.A.), at paras. 15-16, citing R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, at p. 184.

[^8]: R. v. Prosper, at p. 240.

[^9]: R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 117 C.C.C. (3d) 226, at para. 26 (Ont. C.A.).

[^10]: R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129; R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433.

[^11]: R. v. White (2011), at paras. 105 and 137, per Binnie J., concurred in on this point by McLachlin C.J. and Fish, Charron and Deschamps JJ.

[^12]: R. v. White (2011), at para. 137.

[^13]: R. v. White (1998), at para 28

[^14]: R. v. White (1998), at para. 27.

[^15]: R. v. Menard, 1998 CanLII 790 (SCC), [1998] 2 S.C.R. 109.

[^16]: See also R. v. Rodgerson, 2014 ONCA 366, [2014] O.J. No. 2232, at paras. 50-53, and White (1998) as quoted in paras. 67-68 above.

[^17]: R. v. Rodgerson, at para. 51.