R. v. Pattinson, 2016 ONSC 1193

CITATION: R. v. Pattinson, 2016 ONSC 1193

COURT FILE NO.: CR-15-4975

DATE: 20160217

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Andrew McLean, for the Crown Respondent

Respondent

• and -

GREGORY PATTINSON

Derek Martin, for the Accused Applicant

Applicant

HEARD: February 16^th^ and 17^th^, 2016 in Hamilton

REASONS FOR JUDGMENT

LOFCHIK J.

Introduction

1This is an application by the accused to exclude DNA evidence taken pursuant to a warrant to obtain on the grounds that at the time of executing the warrant, the officers in question denied the applicant the opportunity to consult with counsel of his choice.

2The applicant is charged with sexual interference, invitation to sexual touching, sexual assault, careless storage of firearms x4 and careless storage of ammunition.

Factual Background

3At about 9:50 a.m. on April 16^th^, 2015, the applicant was brought into a room at the Hamilton-Wentworth Detention Centre where two police officers were in attendance in order to execute a warrant to obtain DNA evidence by taking blood.

4The applicant was asked whether he wanted to call a lawyer and replied "yes". He was asked who he wanted to call and replied "Derek Martin". By this time, the accused had retained Mr. Martin with respect to these charges.

5One of the officers handed the applicant a copy of the DNA warrant and the proceedings were videotaped. One of the officers conducted a Google search on his own phone and obtained Mr. Martin's phone number. He had asked the applicant if he knew a number at which counsel might be reached, to which the applicant replied "not off hand". The applicant had previously asked to go back to his cell to get counsel's card which had three different phone numbers on it.

6One of the detectives at 9:57 a.m. called the number he had retained on his own phone and left a voicemail message stating the applicant's name and indicating that he would be executing a DNA warrant on the applicant.

7Four minutes later, at 10:01 a.m., the detective called the same number and again left a voice message asking that counsel call back to a phone number for the detention centre. The detective told the applicant that they would wait a few minutes.

8At 10:20 a.m., the detective had not heard back from the applicant's counsel and asked the applicant if he wanted to call another lawyer to which the applicant replied "no". When duty counsel was mentioned, the applicant replied that duty counsel would have no idea about what's going on with the rest of the case.

9The detective then advised the applicant that they were going to proceed to take the blood sample under the terms of the DNA warrant. He asked the applicant if he would cooperate and the applicant replied that he had nothing to say until his lawyer was present.

10The applicant did not resist the taking of the sample, but refused to cooperate. In the course of the process, the applicant stated that he was not consenting because he had not been given his right to counsel and did not want to show consent by any of his actions. The police officers left the detention centre at 10:33 a.m.

11When the applicant's counsel received the message left on his voicemail by the detective, he called the number provided but could not get through. He then called the main line for the detention centre and was told the police had left a few minutes earlier.

12The DNA warrant issued April 7, 2015, specified that it was to be executed any weekday prior to April 25^th^, 2015 from 9:00 a.m. to 9:00 p.m. or such later time as is necessary to allow the applicant to exercise his right to retain and instruct counsel. Various conditions were set out in the warrant.

13In particular, paragraph 3 states:

Gregory James Pattinson shall be afforded a reasonable opportunity to exercise his right to retain and instruct counsel. He shall be diligent in exercising that right. If it becomes apparent that he is not being diligent in exercising that right, he shall be advised that he has 15 minutes left to exercise the right and, if he does not do so, the samples may be taken immediately after that period of time has elapsed.

14It is unknown if there is an explanation as to why the DNA warrant could not have been executed prior to April 16^th^, 2015.

The Right to Counsel (Section 10(b))

15Section 10(b) of the Charter imposes the following duties on state authorities:

1. To inform the detainee of the right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

2. If the detainee indicates a desire to exercise the right, to provide him with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances) without delay; and

3. To refrain from eliciting evidence from the detainee until he has had a reasonable opportunity to obtain advice.

16Once the applicant has asserted his right to speak to counsel of his choice, the police must give him a reasonable opportunity to exercise that right and must not engage in conduct of obtaining evidence except in cases of clear waiver or urgency which deny the arrested person a reasonable opportunity to exercise his right to counsel. In other words, the police have an obligation to "hold off" eliciting information until an arrested person has been given a reasonable opportunity to contact counsel. There is no evidence of waiver of a right to counsel by the applicant in this case.

17I find that in this case, the applicant was not given a reasonable opportunity to speak to counsel of his choice. This was not a case of exigent circumstances or where there was a requirement of immediacy for taking this sample, nor was it a situation similar to the right to counsel being given on arrest where counsel had not been previously involved in the matter and there would be some urgency in having the accused obtain advice of a lawyer in short order. Nor was it a case such as the roadside Breathalyzer demand where there is a requirement to take the sample within a certain time period in order to meet the requirements in the Criminal Code.

18What makes this case different from the case law referred to by Crown counsel is that the accused had already retained a lawyer in this case, namely Derek Martin, and should have been given an opportunity to speak to him in reasonable time. The requirement to speak to a busy criminal lawyer during court hours within half an hour is not giving the accused reasonable opportunity to consult counsel.

19The failure of the police to cease obtaining evidence under the warrant from the applicant in the circumstances of this case without first giving him a reasonable opportunity to exercise his right to counsel, has resulted in the infringement of the applicant's right to counsel.

Exclusion of Evidence (Section 24(2))

20Section 24 of the Charter states:

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

21If a Charter breach is found, then the burden is on the applicant, on a balance of probabilities, to establish admission of the evidence would bring the administration of justice into disrepute.

22In dealing with an application for exclusion under section 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system, having regard to:

a. The seriousness of the Charter-infringing state conduct;

b. The impact of the breach on the Charter-protected interests of the person charged; and

c. Society's interest in the adjudication of the case on the merits.

R. v. Grant, [2009] SCC 32

23Charter-infringing state conduct varies along a spectrum from inadvertent and minor breaches to reckless, to wilful and flagrant.

24In R. v. TGH, Doherty, J.A. in spite of a police officer executing a general warrant, complete failure to provide the detainee his right to counsel, found that the police's respect for the detainee's right to silence in the course of carrying out the execution of the warrant placed the seriousness of the Charter-infringing state conduct "toward the less serious end of the spectrum".

R. v. TGH, 2014 ONCA 460.

25In this case, the applicant was advised of his S.10(b) rights, and attempts were made to implement it. When those attempts failed, the applicant was asked if he wished to speak to duty counsel or legal aid. The police officers present refrained from questioning the applicant, or doing anything other than executing the warrant that might incriminate him. I find that there was nothing in the conduct of the police officers that could reasonably be described as "bad faith".

26So far as the seriousness of the breach is concerned, it is tempered by two factors. First the police did not take advantage of the absence of legal advice by attempting to elicit incriminating evidence from the appellant in the form of admissions or other statements. A breach of S.10(b) becomes all the more significant when police attempt to elicit incriminating statements from the detainee.

27Second, even if the applicant had been advised of his right to counsel and exercised that right, nothing in this record suggests that anything counsel may have said would have altered the course of police conduct. The police would have taken the DNA sample pursuant to the warrant as they were entitled to do. The absence of any causal connection between the breach of S.10(b) and the obtaining of the challenged evidence leads to the conclusion that the evidence would have been available, even if the police had complied with S.10(b). This diminishes to some degree the significance of the breach on the appellant's Charter protected interests.

R. v. TGH, supra at paras 59-60.

28The Supreme Court of Canada in deciding the constitutionality of the DNA warrant provisions of the Criminal Code held that "a person has little choice to comply with the request for blood, hair or saliva made under a valid DNA search warrant".

R. v. SAB, 2003 SCC 60 at para 59.

29Regarding the impact of obtaining bodily evidence from the accused, the Supreme Court of Canada noted in Grant that "where the violation is less egregious and the intrusion is less severe in terms of the privacy, bodily integrity and dignity, reliable evidence obtained from the accused body may be admitted." More specifically with respect to the DNA warrant process, the Supreme Court stated "the degree of offence to physical integrity of the person is relatively modest...blood samples are obtained by pricking the surface of the skin - a procedure that is not particularly invasive in the physical sense."

R. v. Grant, supra at para 111.

R. v. SAB, supra at paras 40, 59.

30For these reasons I conclude that the applicant suffered no prejudice as a result of any state action.

31Society expects criminal allegations will be adjudicated on their merits; the reliability and importance of Crown evidence are considered in relation to the public interest in the court's truth seeking function. McLachlin C.J.C. and Charron J., writing for the majority of the Court in Grant noted that the third factor "will usually favour admission in cases involving bodily samples".

R. v. Grant, supra at paras 79-81, 83 and 110.

32The Supreme Court has stated in R. v. SAB that "one of the benefits of DNA evidence is its high degree of reliability."

33The reliability of the evidence takes on additional significance in cases of sexual offences involving a youth. As Doherty, J.A. observed in R. v. TGH:

The negative impact on the administration of justice when reliable evidence is excluded is arguably particularly significant in cases involving allegations of historical sexual assaults. In many of these cases there is little evidence independent of the complainant's allegations and the accused's denials. The outcome often turns on difficult credibility assessments. The availability of independent reliable evidence can be important to the maintenance of confidence in the administration of justice in this kind of case. To exclude that kind of evidence under S.24(2) runs a real risk of bringing the administration of justice into disrepute.

Conclusion

34Taking all of the relevant factors into account, and not intending to diminish in any way the significance of the S.10(b) breach, I am satisfied that the Grant analysis favours the admission of the evidence obtained in the execution of the DNA warrant. The motion to exclude is therefore dismissed.