ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 14-1333

DATE: December 15, 2015

B E T W E E N:

HER MAJESTY THE QUEEN

Sarah Graydon, for Her Majesty the Queen

Respondent

• and -

CODIE DUFAULT

Maria M. Conroy, Solicitor for the Applicant

Applicant

HEARD: November 26, 2015

RULING

James J.

The Facts

1The accused requests that his statement to the police admitting his participation in a home invasion be ruled to be inadmissible. The applicant alleges his right to retain and instruct counsel without delay was compromised prior to giving the statement.

2During the evening of November 16, 2014 the police allege that the applicant and at least one other person pushed their way into the home of an elderly woman for the purpose of committing a robbery.

3Two days later, at approximately 3:30 p.m., the applicant was arrested and transported to the local police detachment for questioning. When he was arrested, the applicant was given the standard cautions including a statement respecting his right to speak to a lawyer. The accused asked to speak with Mr. Mike March. While enroute to the detachment Detective Constable Schilling said he didn’t want to speak to the applicant about the incident until the applicant had a chance to speak with a lawyer. Any further conversation they had was not related to the investigation.

4At about 4 p.m. Detective Constable Schilling called Mr. March’s office and was advised that Mr. March was in court, that his assistant would try to get a message to him and that she was unsure whether he would be returning to the office that day.

5The officer advised the applicant he hadn’t been able to contact Mr. March and that someone in Mr. March’s office was going to try to reach him. Detective Constable Schilling testified that the applicant said he didn’t want to speak with anyone else and indicated he was agreeable to speaking with the police officer without speaking to Mr. March. The police officer said he formed the impression that the applicant didn’t want to speak with Mr. March or anyone else at this point but acknowledged that the applicant did not specifically say that he did not want to talk to Mr. March. Detective Constable Schilling chose not to proceed with the interview at this time and decided to wait for a call back. The applicant was placed in a holding cell.

6About 40 minutes later Detective Constable Schilling advised the applicant that Mr. March had not called back but that the applicant could speak with another lawyer if he wished. The police officer provided information to the applicant with respect to the availability of a Legal Aid lawyer.

7The applicant indicated to Detective Constable Schilling that he was prepared to speak to the police.

8The interview began at about 4:45 p.m. The following is an edited version of the initial phase of the interview:

SCHILLING – Okay, so…, um I’m going to start things off uh Codie, just so you know um, I’ll just to do some introductions and then we will get in to things.

SCHILLING – I would ask that you acknowledge that you understand this statement is being video and audio taped and that you consent to such a tape being made is that understood?

DUFAULT – Yes.

SCHILLING - …Finally you must understand you are not obliged to give this statement and if any person has by words or acts attempted to persuade you to provide it, you are to disregard those words or acts and only give this statement if you freely choose to do so. Do you understand your right to choose whether or not to make a statement?

DUFAULT – Yes.

SCHILLING – …Um, so just so that I’m…, just so that I can make sure that you understand those and what those are, I’m just going to read you and that you understand what your rights , I’m just going to read your rights to counsel and caution again okay… Um, so 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 a toll free number that will put you in contact with Legal Aid Duty Counsel Lawyer for free legal advice right now, do you understand.’’

DUFAULT – Yes.

SCHILLING – Did you…, do you wish to call a lawyer now?

DUFAULT – No Sir.

SCHILLING – Okay, uh when I first talked to you though, you told me that you wanted to speak to Mike March.

DUFAULT – Yes.

SCHILLING – Is that correct?

DUFAULT – Yes, if it was possible yah.

SCHILLING – Okay, uh so once we got back to the police station here, I placed a call to Mike March, to Mike’s office and they told me at that time that he was in court, he wasn’t available. Um, they would pass the message along to him and uh to see if he would call back. Um, so we waited um, we waited a while for him to call back, he hadn’t yet called back, um, so I’m asking you now, um, did you want me to call anyone else for you to speak to?

DUFAULT – No, that’s good, we’re good.

SCHILLING – Are you sure?

DUFAULT – Yes for sure. SCHILLING – Okay, if at any time um at all you want to call, somebody else..

9In the statement that followed, the applicant admitted to his participation in the home invasion.

Discussion and Analysis

10The applicant says that in these circumstances the police failed to allow a reasonable time for the applicant to speak with legal counsel of his choice and failed to give the required Prosper warning. The period in question was about 40 to 45 minutes from the time of the discussion between Detective Constable Schilling and Mr. March’s assistant and the commencement of the video-taped interview.

11Ms. Conroy, counsel for the applicant, referred to the case of R. v. N.(N.), 2014 ONCJ 344. In this case Stribopoulos, J held that 30 minutes did not constitute a reasonable length of time for the detainee to consult with a lawyer. In that case, the unsuccessful attempts to call a lawyer took place late on a Saturday night via the lawyer’s after hours number. The police officer offered to call duty counsel then said that if the detainee didn’t want to talk to a lawyer, “that’s fine too, we can talk” (para. 13). On the voir dire at trial regarding the admissibility of the statement, the officer conceded that he did not offer the opportunity to wait longer for the return call. Stribopoulos J. expressed the need for a Prosper warning in these terms:

During cross-examination it became apparent that Constable Cullen was not aware of the need to provide a so-called “Prosper warning” to a detainee who has previously asserted their right to counsel and who then indicates a desire to forego that right. In other words, he was not aware of the positive police obligation on the police to tell such a detainee of their right to a reasonable opportunity to contact a lawyer and the obligation on the part of the police not to question the detainee during that time period (para. 19).

12On the issue of whether 40 minutes was a reasonable time to wait in the circumstances here, Crown counsel argued that the use of a gun in the commission of the offence that had not been located created urgency. This point is countered by the consideration that the applicant wasn’t arrested until two days later. I am not prepared to conclude that minutes, even hours, mattered on these facts.

13In my view, the issue here is not just as a question of whether the police waited a reasonable length of time before commencing the interview, but also whether the police afforded the applicant a reasonable opportunity to speak to counsel. Framing the issue in this manner brings into play the question of whether the police should have sought to contact Mr. March by other means, perhaps by cell phone or by calling back to his office to see if any updating information had been received in the meantime. Detective Constable Schilling admitted that he had no intention of calling back to Mr. March’s office without having heard from him, yet said he was surprised when he did not hear back from Mr. March.

14It warrants emphasizing that the applicant did not have the ability to call Mr. March’s office himself. He was completely dependent on the police to facilitate the communication between the applicant and counsel of his choice.

15There are two fundamental issues:

1. Was a Prosper warning required in the circumstances here?

2. If the answer to the first question is yes, does section 24(2) of the Charter operate to save the statement from being excluded because of the Charter breach?

16I will now deal with the first issue, namely, was a warning required?

17The requirement placed upon the police to provide the so-called Prosper warning originated in 1994 Supreme Court of Canada decision in R. v. Cyril Prosper, (1994) 1994 65 (SCC), 3 S.C.R. 236. Prosper was an “over 80” case that involved drinking and driving. Upon the accused being detained, he was read the standard police cautions that included:

i) the right to retain and instruct counsel without delay;

ii) that the detainee could call any lawyer he wished; and,

iii) that he had the right to apply for legal assistance without charge through the provincial Legal Aid program.

It was about 3:40 p.m. on a Saturday afternoon. The police officer said he would supply home phone numbers for legal aid lawyers if the detainee wished to have them. The detainee said he would provide a breath sample but he wanted to speak with a lawyer first. When they got to the police station at 3:53 p.m. ¹, the detainee was provided with a cubicle to make the calls. After about fifteen calls that took nearly forty minutes; he had been unable to speak with any lawyers. At 4:30 p.m. the police became aware that the legal aid lawyers had recently ceased taking calls at their homes. A short time later, the accused provided a sample of his breath.

18Lamer C.J., writing for the majority, said that when a detainee says he wants to speak with a lawyer and has been reasonably diligent in asserting his right to counsel yet has been unable to reach a lawyer, the courts must ensure that the right to counsel is not too easily waived:

“Indeed, I find that an additional informational obligation on the police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required 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 had had that reasonable opportunity (p. 274)… In circumstances where a detainee asserts his or her right to counsel, the onus is on the Crown to establish that the detainee subsequently waived his or her right and the standard of proof will be high (p. 282)… Moreover, given that the (detainee) was never properly informed of his rights under s. 10(b) when he change his mind and indicated he was prepared to take the Breathalyzer tests without first speaking to a lawyer—specifically of his right to have the police hold off in order to provide him with a reasonable opportunity to contact a legal aid lawyer—one cannot say that he was in a position to know what he was giving up when he submitted to the Breathalyzer tests. In other words, that appellant cannot be said to have waived a right he did not know that he had.”

19The Supreme Court of Canada was deeply divided on the issues raised by the Prosper case and split five to four with L’Heureux-Dube J. writing the dissent. She disagreed with the Chief Justice’s alternate solution idea and suggested that the notion of “holding off” was neither warranted nor appropriate, presumably because of the effect of a holding off requirement on the two hour time limit set out in the Code for breath tests. In the drinking and driving context, she concluded that the exclusion of incriminating blood alcohol content readings would bring the administration of justice into disrepute.

20Detective Constable Schilling testified that at the time he interviewed the applicant, he was not fully aware of the requirement to provide the two informational statements identified by Lamer C.J. in Prosper when the applicant purported to waive his right to counsel.

21I have concluded that in the circumstances here, the applicant did not in law waive his section 10(b) rights. I appreciate that while Detective Constable Schilling did not expressly state to the applicant that the police had to wait a reasonable time and that they could not solicit incriminating evidence until a reasonable time had expired, the fact is that Detective Constable Schilling did hold off for about forty minutes while waiting for a return call from Mr. March. I am not prepared to say that the forty minute period was unreasonably short in the circumstances here, but when one adds in the fact that there was no follow up call to Mr. March’s office and apparently no effort to get a cell number in circumstances where the applicant was completely dependent on the police to make the contact with Mr. March, the combination of these factors leads me to conclude that the applicant’s Charter rights were breached in that he did not have a reasonable opportunity to speak with counsel and he did not effectively waived this right before he confessed to the police.

22This conclusion raises the question of whether the confession ought to be excluded under section 24(2) of the Charter. The question of whether evidence should be excluded engages a balancing of the three factors articulated in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32.

23The First Factor-Seriousness of the Charter-Infringing State Conduct. I am not prepared to hold that Detective Constable Schilling wilfully intended to disregard the applicant’s Charter rights or that the failure to obtain an effective waiver was a result of intentional misconduct. On the contrary, in my view Detective Constable Schilling was attempting to cover all the bases before he proceeded with the interview. This weighs in favour of admission of evidence.

24The Second Factor-Impact on the Charter-Protected Interests of the Applicant. This factor requires an assessment of the extent to which the breach actually undermined the interests of the applicant. Crown counsel acknowledged that in the circumstances here, where the applicant confessed to the crime without having had an opportunity to speak with a lawyer beforehand although he initially said he wished to do so, the impact of the Charter breach on the applicant was significant. Also, it is important to remember that there is little point to recognizing Charter rights unless there are going to be consequences for breaches of those rights. These considerations weigh in favour of exclusion.

25The Third Factor-Society’s Interest in an Adjudication on the Merits. Home invasions are a particularly heinous type of crime. Robbing victims who are often elderly and vulnerable, frequently at night, by forced entry into their homes violates our sense of safety and security and can have negative consequences for the victims long after the crime has been committed. The evidence sought to be excluded here is important and apparently reliable. In my view, it is more likely that the administration of justice would fall into disrepute if the applicant’s confession was ruled to be inadmissible than if it was admitted into evidence. This weighs in favour of admission.

26The balancing exercise required by section 24(2) leads me to conclude that the evidence ought to be admitted notwithstanding the particular Charter breach that occurred here. In the result, the application is dismissed.

Footnotes

1. 1This time reference comes from the reasons for decision in the Court of Appeal reported at 1992 2476 (NS CA) at p. 2.