CITATION: R. v. Cornwall, 2016 ONSC 1756
COURT FILE NO.: CRIMJ(P) 875/15
DATE: 2016 03 18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
Alanna Fedak-Tarnopolsky, Counsel for the Crown
- and -
JAHVOY CORNWALL
Applicant
Gavin C. Holder, Counsel for the Accused
HEARD: January 26, 27, 28, 29, 2016.
CHARTER RULING
Lemon J.
The Issue
[1] Mr. Cornwall seeks a ruling that the statements he made to police in a videotaped statement be excluded from the evidence at his trial. He pleads that there has been a breach of his s. 10(b) and 7 rights, pursuant to the Canadian Charter of Rights and Freedoms.
Background
[2] Mr. Cornwall is charged with robbery and using an imitation firearm while attempting to commit that robbery.
[3] On December 26, 2013, an individual was robbed in the stairwell of a building in Brampton. It appears that four individuals took his cell phone and his marijuana. It is alleged that Mr. Cornwall was one of the robbers.
[4] On January 31, 2014, at approximately 9:00 a.m., Mr. Cornwall was arrested for these charges. Later that morning, he provided a video statement and made certain inculpatory and exculpatory statements with respect to the robbery. Four witnesses gave evidence for the Crown and Mr. Cornwall testified on this application.
[5] As a result of some conflict in the evidence, I am required to answer the following questions:
What rights did Cst. Ashby give to Mr. Cornwall at the time of his arrest near Mr. Cornwall’s residence?
Did Cst. McNamara give Mr. Cornwall his Charter rights while on the way to the police station after the arrest?
Did Mr. Cornwall receive appropriate advice from Duty Counsel at the police station?
Did Cst. Ashby properly inform Mr. Cornwall of his rights during the videotaped statement?
[6] Based on my answers to the above questions of fact, I am asked to determine if Mr. Cornwall’s rights were breached. If they were, should the evidence be excluded pursuant to s. 24(2) of the Charter of Rights?
What rights were given to Mr. Cornwall at the time of his arrest?
Evidence of Cst. Ashby
[7] Cst. Ashby has been with the Peel Regional Police for 17 years. When he came to court to testify on this application, he started out by failing to bring his original notebook. This exemplified the evidence to come.
[8] On January 31, 2014, Cst. Ashby was in plain clothes as a member of the Peel Criminal Investigation Bureau. He started at 7:00 a.m. that day. He was advised that there was a signed search warrant for a unit in an apartment building at 37 Eastbourne Avenue and he was part of a team being put together to execute the warrant and arrest Mr. Cornwall.
[9] In examination in-chief, he said that he was to watch the building to see if Mr. Cornwall came in or out of the building. He arrived at Eastbourne "almost right away" or “shortly after 7:00 a.m.” but he was not sure exactly when. However, in cross-examination, and after reviewing other police records, he agreed that he logged on to the scene at 8:47 a.m. He may have got there 15 to 20 minutes before that to get a coffee. He denied that this was very far off of his evidence that he got there not much after 7:00 a.m. Again, an example of how difficult it is to rely on Cst. Ashby’s memory or evidence.
[10] The tactical squad arrived. Cst. Ashby had a key and let them into the building. The tactical squad executed the warrant on the 8th floor of the building while Cst. Ashby waited in the lobby.
[11] At first, he said that he had no information about Mr. Cornwall. However, after some prodding by the Crown, he remembered that Mr. Cornwall's father told him that his son was on the way up. He is not sure if he received that information from the father on the phone or by speaking with the father or whether it was relayed by another officer from the residence.
[12] He did not believe that it was relevant to keep note of when he arrived, when the tactical squad arrived, when he obtained information from the father or anything between 7:00 and 9:10 a.m.
[13] He is not sure how long he waited after the tactical squad went up to the unit but after perhaps 10 or 15 minutes, he saw Mr. Cornwall walking in through the back door of the building. Mr. Cornwall identified himself and Cst. Ashby arrested him at 9:10 a.m. There were no other officers with him at the time of the arrest.
[14] Although Cst. Ashby had a notebook, it was not the standard patrol officers’ notebook and he did not have the usual printed Charter of Rights warning in his notebook. He spoke with Mr. Cornwall and made notes in his book when he went to the station approximately one hour after the arrest. He arrested Mr. Cornwall, gave him his rights to counsel and then waited a minute or two for Cst. McNamara to arrive.
[15] Cst. Ashby was not wearing a wrist watch. When Cst. McNamara arrived, Cst. Ashby asked Cst. McNamara what time it was; Cst. McNamara said 9:14. Cst. Ashby thought that he arrested Mr. Cornwall four minutes before that and therefore wrote 9:10 into his notebook. He had no other conversation with Cst. McNamara about his notes.
[16] Cst. Ashby's notes were made an exhibit. They show that Mr. Cornwall responded to his rights to counsel being read to him. Those notes suggest that he said that he understood that he was under arrest and had the right to retain and instruct counsel without delay. He understood that he could telephone any lawyer he wished. The notes suggest that he understood that he had the right to free advice from a Legal Aid lawyer and was given the telephone number for Duty Counsel. Mr. Cornwall said that he did not wish to call a lawyer now. Finally, he said that he understood that he was not obliged to say anything unless he wished to do so and that whatever he said may be given in evidence.
[17] The notes also disclose that Cst. Ashby had, at first, written 9:14 as the time of arrest and then wrote 9:10 over top of 9:14 to correct that error. He denied that he consulted with other officers about his notes. He made no other additions or deletions to the notes.
[18] He agrees that there were contradictions between his notes and the computer records at dispatch. He was not sure about the order of events in his notes. He finally admitted that it was possible that the arrest was at 9:14.
[19] At first, Cst. Ashby confirmed that he read Mr. Cornwall his rights immediately after arrest. However, he eventually agreed that he did not read him his rights (from a printed card) but rather gave him his rights (as he remembered them from his experience). He talked to Mr. Cornwall about his rights in order to build rapport.
[20] He agreed that his notes could be interepreted to read that he went upstairs with the tactical squad but it may also be that the tactical officers went upstairs without him. They also seem to suggest that he spoke to Mr. Cornwall's father but Cst. Ashby does not recall being upstairs.
Evidence of Jahvoy Cornwall
[21] Mr. Cornwall is 21 years of age. He is a Canadian citizen and has no criminal record. He finished high school but has no post-secondary education. He did not take a law course in high school.
[22] At 9:00 a.m. on January 31, 2014, he was coming home from his girlfriend’s house. He entered the back door of his apartment building and was arrested by Cst. Ashby. Cst. Ashby said that he was being charged for "guns and robbery". He was arrested at the back door and brought a few steps into the lobby.
[23] Cst. Ashby said that he was under arrest for “guns and robbery”. He told him that he had a right to speak to a lawyer and was asked if he wanted to speak to a lawyer. Cst. Ashby said nothing before that conversation and nothing after. However, when Mr. Cornwall’s interview transcript was shown to him, he remembered that they had talked about his name before he was arrested. As well, his affidavit in support of his application reads:
PC Ashby rushed through reading me my rights when I was arrested and I could only understand some of what he was saying. I remember hearing him say that a lawyer could be provided and that I could go through the yellow pages to find one.
[24] Mr. Cornwall therefore agreed that there were more things that were said to him by Cst. Ashby, although that he did not understand them, other than being told that he had a right to counsel.
[25] In his affidavit, Mr. Cornwall also said:
I did not hear him say that if I decided to talk to the police, anything that I say could be used against me. I believe that he left this out when he read me my rights. He also did not tell me that it could not be held against me in court if I chose to remain silent instead of providing a statement to the police.
[26] When he was arrested, Mr. Cornwall was sure that Cst. McNamara was listening and looking at him. Cst. Ashby gave him to Cst. McNamara to take him to the police station.
Positions of the Parties
[27] It is the position of the defence, that I should accept the evidence of Mr. Cornwall and find that the rights, such as they were, were given in a rushed fashion by Cst. Ashby. In short, they were not done fully and properly and accordingly, I should therefore find that they were not done at all.
[28] Specifically, the defence points out that it would appear that Mr. Cornwall was not advised that he could telephone a lawyer, had a right to counsel without delay and that anything he said could be used against him.
[29] In response, the Crown framed her arguments relying on issues later in the fact situation. Her submissions did not rely on Cst. Ashby’s evidence.
Analysis
[30] I cannot rely on the evidence of Cst. Ashby. His notes, such as they are, are inadequate to assist his memory. His memory is obviously unreliable. He has given inconsistent evidence. Although his notes with respect to the Charter issues are clear, those notes are one of the few parts of his evidence that are clear, even though they were prepared an hour later. I cannot rely on that evidence.
[31] Instead, I can rely on the evidence of Mr. Cornwall despite the obvious deficiencies in his own memory. What he does remember is consistent with parts of Cst. Ashby’s memory.
[32] I am therefore satisfied that he was advised that he had a right to speak with a lawyer; that a lawyer could be provided to him and that he would be given an opportunity to find a lawyer in the yellow pages. It follows, however, that I cannot find, one way or the other, that he was advised that any statements could be used against him.
Did Cst. McNamara give Mr. Cornwall his [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights?
Evidence of Cst. McNamara
[33] Cst. McNamara has been with Peel Regional Police for seven years.
[34] He was first involved on January 31, at 8:38 a.m. when he was assigned to the Criminal Investigation Bureau. He was briefed that there was to be a search warrant conducted and an arrest of Mr. Cornwall. The charges were robbery, possession of a firearm and pointing an imitation firearm. Cst. McNamara’s job was to transport Mr. Cornwall to the police detachment after the arrest.
[35] He attended at 37 Eastbourne at 9:09 a.m. with his partner, Cst. White. Cst. White drove the vehicle.
[36] When they arrived, they went up the stairwell to the eighth floor along with the tactical team and paramedics. When they got there, they were advised that Mr. Cornwall had already been arrested.
[37] He therefore went back down to the main floor. There, he met with Cst. Ashby who was with Mr. Cornwall. He was not with Cst. Ashby when Mr. Cornwall was arrested. Mr. Cornwall was turned over to him at 9:14 a.m. and Cst. McNamara escorted him out to the cruiser.
[38] He placed Mr. Cornwall in the backseat and then sat in the front passenger seat. While Cst. White drove, Cst. McNamara gave Mr. Cornwall his rights to counsel.
[39] Cst. McNamara made handwritten notes of his role in the investigation. He needed them at the application to refresh his memory particularly with respect to the issues of rights to counsel and caution. His notes referred to the standard issued rights printed in his notebook. He therefore needed to refer to both his notes on that document as well as his notes in the same book.
[40] He made all of his notes at the time that they occurred. There were no additions or deletions. He did not speak with Cst. Ashby about making his notes. He did have a discussion with Cst. Ashby when Cst. Ashby turned Mr. Cornwall over to him.
[41] Cst. Ashby did not read Mr. Cornwall his rights in front of Cst. McNamara. If he had, Cst. McNamara would not have read him his rights again in the cruiser.
[42] In cross-examination on this issue, it was disclosed that the printed notebook rights that were provided to the defence prior to trial were from a different notebook than the actual notebook. Const McNamara explained that this was because his actual notebook was not in his possession at the time of the request and so he provided a copy from a different notebook. This is, of course, sloppy and lazy practice, but the documents are identical except that the printed rights and questions were numbered on a different day. The information and the reference to the handwritten notes is the same. The defence was not prejudiced in any way.
[43] Cst. McNamara agreed that his notation of 9:14 a.m. is much darker in appearance; however, that must have been because he pressed harder. He had no other reason to explain why the ink was darker. He denied that it was written over another number. If he had been in error, he would have crossed the first out and written in the correct number.
[44] Cst. McNamara referred to both his notes and the standard printed questions in his notebook. Rather than write out the questions, Cst. McNamara wrote a number for each standard question, followed by Mr. Cornwall’s response. If Mr. Cornwall did not understand or a further explanation was needed, Cst. McNamara made further notes of what he told Mr. Cornwall.
[45] He first told Mr. Cornwall what he was arresting him for and Mr. Cornwall said “Alright”.
[46] He then told him he had the right to retain and instruct counsel without delay and Mr. Cornwall said “Ya”.
[47] He then told Mr. Cornwall that he had the right to telephone any lawyer he wished and Mr. Cornwall said “Alright”.
[48] He advised Mr. Cornwall of the Legal Aid number and Mr. Cornwall said “Alright”.
[49] He asked Mr. Cornwall if he understood and he said “Ya”.
[50] He asked Mr. Cornwall if he wished to speak to a lawyer and he said “Yes, please”.
[51] Mr. Cornwall was then cautioned and asked if he understood and he said “Yep”. He was asked if he wished to speak to Duty Counsel and he said “Yes, please”.
[52] He confirmed that he told Mr. Cornwall that his statements could be “given in evidence” but not that they “could be used against him”.
[53] They arrived at 21 Division at 9:26 a.m. It normally takes five minutes to read the rights and it took six minutes to get to the station.
[54] Mr. Cornwall was brought into the booking area and a call was made to Duty Counsel at 9:29 a.m.
[55] Duty Counsel called back at 9:36 a.m. and the call was transferred to Mr. Cornwall. The call ended at 9:39 a.m. Cst. McNamara did not speak with Mr. Cornwall after that. He left the area at 9:44 a.m.
[56] He made no threats or promises or inducements to Mr. Cornwall. He did not hear any from any other officer. There were no other requests made by Mr. Cornwall about a lawyer other than Duty Counsel.
Evidence of Cst. White
[57] Cst. White has been with the Peel Regional Police for five years. He was involved with the investigation at 8:30 a.m. on Friday, January 31, 2014. He was briefed that there was going to be an arrest of Mr. Cornwall for robbery. He was to attend and transport Mr. Cornwall along with Cst. McNamara.
[58] He drove with Cst. McNamara and arrived at 37 Eastbourne at 9:09 a.m. They walked into the building together. They went up the stairwell to the unit. When they arrived on the eighth floor, they were told that Mr. Cornwall was downstairs. He believes that he and Cst. McNamara went downstairs together.
[59] They went to the lobby and found Mr. Cornwall and Cst. Ashby already there. Cst. McNamara and Cst. Ashby had a brief conversation. He saw Cst. McNamara and Cst. Ashby in discussions but he cannot recall them making any notations in their notebooks. Mr. Cornwall was with them because he was under arrest. He did not observe Cst. Ashby giving Mr. Cornwall his rights.
[60] Cst. White left to get the cruiser to bring it back to the front of the building. When he brought the car back, Cst. McNamara and Mr. Cornwall got in. They left at 9:20 a.m. and arrived at the station at 9:26 a.m. Cst. McNamara gave Mr. Cornwall his rights while they drove. Cst. McNamara gave Mr. Cornwall his rights from his notebook. Cst. McNamara was in the passenger seat and Mr. Cornwall was in the rear. He did not hear what, if anything, Mr. Cornwall said.
[61] He made no threats or promises or inducements to Mr. Cornwall. He did not hear any threats or promises from Cst. McNamara. He made no notes of the rights process because he was driving. He had no further contact with Mr. Cornwall.
Evidence of Mr. Cornwall
[62] Mr. Cornwall testified that, after his arrest by Cst. Ashby, he was then given to another officer who was there when his rights were told to him.
[63] There were other officers around. There were more than 10 officers in the lobby and all of them were white males. There were no distinguishing features. Some were in plainclothes and some were in uniform; he had seen none of them before. However, he is certain that Cst. McNamara was there when he was arrested.
[64] He was then taken by cruiser to 21 Division by Cst. McNamara. Cst. McNamara was the only officer in the cruiser and was driving. He remembers the drive and can still visualize Cst. McNamara doing the driving. No one read anything to him on the drive. He is adamant that Cst. McNamara did not read him his rights. Cst. McNamara said nothing to him except to give him directions when they were in the station.
Positions of the Parties
[65] It is the position of the defence that I should find that no rights were provided to Mr. Cornwall by Cst. McNamara.
[66] It is the defence’s submission that the officers have changed their notes to cover up the fact that Csts. McNamara and Ashby were together at either 9:14 or 9:10. Accordingly, Cst. McNamara would not have read Mr. Cornwall’s rights to him in the cruiser, on the way to the station.
[67] It follows, therefore, that Cst. McNamara fraudulently created notes about the rights and Cst. White is a complete liar.
[68] In response, the Crown submits that I should accept the evidence of Csts. McNamara and White and find that the evidence supports the conclusion that Mr. Cornwall received his rights. Again, she avoided the evidence of Cst. Ashby. She points out that finding otherwise would amount to finding that the officers gave perjured evidence simply for the purposes of submitting that Mr. Cornwall received his rights.
[69] Finally, the Crown points out that, based on the evidence that follows, Mr. Cornwall was given an opportunity to speak with Duty Counsel and therefore, must have asked for that while speaking with Cst. McNamara.
Analysis
[70] I cannot find, on a balance of probabilities, that Csts. White, McNamara and Ashby were preparing fraudulent notes about rights even before the taped interview began. Had there been a failure to provide Mr. Cornwall with his rights that failure could be, and was, corrected in the video statement. There was no need to go to the perjured plan that is put forward by the defence.
[71] It does seem odd to me that Cst. McNamara provided Mr. Cornwall with his rights on the drive to the station; his only responsibly was to transport Mr. Cornwall. On the other hand, it would have been simply bizarre if Cst. McNamara read Mr. Cornwall his rights after he had already heard the rights given by Cst. Ashby as remembered by Mr. Cornwall.
[72] Further, I am not satisfied that Mr. Cornwall’s memory is such that it can set aside the officers’ evidence on this point.
[73] I am satisfied that Cst. McNamara gave Mr. Cornwall his Charter rights on the way to the police station. The real question is, did Mr. Cornwall understand what he was told?
Did Mr. Cornwall receive appropriate advice from Duty Counsel?
Evidence of Cst. McNamara
[74] Cst. McNamara and Mr. Cornwall arrived at 21 Division at 9:26 a.m. Mr. Cornwall was brought into the booking area and a call was made to Duty Counsel at 9:29 a.m. while Mr. Cornwall waited.
[75] Duty Counsel called back at 9:36 a.m. and the call was transferred to Mr. Cornwall. The call ended at 9:39 a.m. Cst. McNamara did not speak with Mr. Cornwall after that. He left the area at 9:44 a.m.
Evidence of Cst. Shaidle
[76] Cst. Shaidle has been with the Peel Regional Police for four years. She was the cells officer on January 31, 2014. It was her responsibility to make sure that prisoners were okay and allowed to speak to a lawyer. The prisoner log was prepared by her. It is primarily in her handwriting. She had no independent recollection of what occurred on January 31, 2014.
[77] Cst. McNamara brought Mr. Cornwall to her. At 9:35, the call from Duty Counsel was transferred to a private room. As soon as the call was received, it was transferred to Mr. Cornwall. The door to the private room was opened and Mr. Cornwall was told to pick up the phone. No one was with Mr. Cornwall when he was in the room speaking with the Duty Counsel. Cst. Shaidle could see into the private room but could not hear what was said. At the end of the call, Mr. Cornwall was moved out of the room to a sitting area. Mr. Cornwall signed the log that he had spoken with Duty Counsel.
[78] At 9:38 a.m. Cst. Shaidle took Mr. Cornwall to the bullpen and lodged him there.
[79] She made no threats to Mr. Cornwall and did not hear any from others.
Evidence of Mr. Cornwall
[80] He did not ask for Duty Counsel; he was just told that Duty Counsel was on the phone. He was put in a small room with a telephone. He did not know who the Duty Counsel was until Cst. Ashby told him during the videotaped interview that followed.
[81] The Duty Counsel spoke for about one minute and then hung up. He did not know who was on the phone and thought that whoever it was, worked with the police. The Duty Counsel did not tell him who or what Duty Counsel was and therefore Mr. Cornwall did not trust him. He was not aware that the Duty Counsel was a lawyer.
[82] Mr. Cornwall did not speak with the Duty Counsel or ask any questions, he was completely silent. He did not even say hello to the Duty Counsel. He was told to try not to speak to the police. He was not told that anything he said could be used against him.
[83] When he was told not to speak to the police, he did not know if that was the truth. He wanted to know what would happen if he did speak to police but did not ask any questions of the Duty Counsel. In any event, no one told him to speak to the police.
[84] He believes that he heard about finding a lawyer in the Yellow Pages from the Duty Counsel or another police officer. The Duty Counsel simply told him to try not to speak to the police. It may have been Cst. Ashby who told him about the Yellow Pages. But it may have been the Duty Counsel.
[85] After this telephone conversation, he still wanted to speak to a lawyer and he told that to Cst. Ashby.
Positions of the Parties
[86] The defence submits that I should accept that Mr. Cornwall did not understand what he was advised by the Police and the Duty Counsel.
[87] In response, the Crown submits that the police complied with both their informational and implementational duties under the Charter by advising Mr. Cornwall that he had a right to speak with Duty Counsel and by making sure that he did so.
Analysis
[88] As can be seen, again, Mr. Cornwall’s memory fails him from time to time. He was incorrect as to what occurred with Cst. Ashby, McNamara and White. I cannot rely on his memory of what he was told by Duty Counsel. But I can presume that he obtained proper advice from Duty Counsel: see R. v. Bennett, 2005 CanLII 11186 (Ont. S.C.). The police did what they could to facilitate his right to counsel. I find that Mr. Cornwall received appropriate advice from Duty Counsel.
[89] But the question remains; did he understand what he was told?
Did Cst. Ashby properly inform Mr. Cornwall of his rights during the videotaped statement?
[90] Fortunately, there is a transcript and videotape of the interview between Cst. Ashby and Mr. Cornwall. It makes many of my prior factual determinations less significant. The relevant parts are:
OFFICER: … right? Okay, um, I want you to understand-, while i-, as you-, I already explained to you and you spoke with duty counsel, you’re satisfied with what they told you?
CORNWALL: No, I would like to speak to a lawyer, but.
OFFICER: Okay, do you have a lawyer?
CORNWALL: No.
OFFICER: Should I guess which lawyer you want?
CORNWALL: UM…
OFFICER: Duty counsel is a lawyer, you know that, right?
CORNWALL: Oh, oh, oh, okay. Okay, so then yeah, I talked to them.
OFFICER: Okay. If you have another lawyer in mind, then I can-, I’ll be glad to let you speak with one.
CORNWALL: They said something about, um, at the back of the Yellow Pages or something like that, there is some.
OFFICER: Do you wanna just pick one?
CORNWALL: All right.
OFFICER: Yeah? That’s what you prefer to do?
CORNWALL: Yeah.
OFFICER: Okay, I’ll get one for you.
CORNWALL: All right.
OFFICER: Okay? Um, yeah. Give me one sec, let me see what I can do, okay?
CORNWALL: All right.
OFFICER: I don’t know if we have Yellow Pages here, but.
CORNWALL: All right, man.
11:27 Officer leaves the room.
11:35 Officer enters the room.
OFFICER: There is a phonebook for all lawyers, okay?
CORNWALL: Mm-hmm.
OFFICER: Go ahead.
CORNWALL: (Inaudible.) Do I have to look for Brampton or is Toronto, or whatever?
OFFICER: It’s up to you.
CORNWALL: Mm-hmm.
OFFICER: You spoke with duty counsel, you don’t have your own lawyer.
CORNWALL: Mm-hmm.
OFFICER: Uh, uh, this seems kind of strange to me.
CORNWALL: Mm-hmm. ‘Cause they said I don’t have to answer any questions or talk to anybody.
OFFICER: No, you don’t have to.
CORNWALL: Oh, so I don’t?
OFFICER: That’s what I already explained to you too, right?
CORNWALL: Oh, I understand. I’m good then.
OFFICER: Okay, so you don’t wanna use this now?
CORNWALL: No, ‘cause you’re saying that I already spoke to …
[91] According to the time stamp on the video, the time from when the phone book was pushed towards Mr. Cornwall to when he pushed it back to Cst. Ashby and declined to use the phone book is 44 seconds. The transcript continues:
OFFICER: Yeah, you did speak with a lawyer ‘cause duty counsel is a lawyer. You can also apply to le-,
11:36 if you don’t understand your rights, I’ll explain them to you again.
CORNWALL: Mm-hmm.
OFFICER: I know I explained them to you quickly before, but I can explain them to you again, okay?
CORNWALL: All right.
OFFICER: So what your rights are is that you can speak with duty counsel, which you already did, which is a free-, you can retain and instruct counsel, which is a lawyer, okay?
CORNWALL: Mm-hmm.
OFFICER: For legal advice. You can ask them to do things for you, whatever you need to do.
CORNWALL: Mm-hmm.
OFFICER: Take care of your business, get bail set up, that kind of stuff.
CORNWALL: Oh, yeah…
OFFICER: Okay?
CORNWALL: … so is it-, can I speak to them ,or?
OFFICER: You just-, you already spoke with them.
CORNWALL: So I can’t speak to them again?
OFFICER: For what purpose?
CORNWALL: Like to arrange for bail and all that stuff.
OFFICER: Well, your family knows that you’re-, that you’re gonna, you’re gonna have bail today.
CORNWALL: Um, okay.
OFFICER: Okay? You’re going out for bail today.
CORNWALL: Mm-hmm.
OFFICER: If you didn’t know that, now you do.
CORNWALL: Yeah, all right.
OFFICER: Okay? So I didn’t think really that’s really an issue.
CORNWALL: Yeah, okay, I didn’t know.
OFFICER: What they do is they give you advice.
CORNWALL: Mm-hmm.
OFFICER: Now, every lawyer will tell you, try not to talk to the police.
CORNWALL: Yeah.
OFFICER: Okay? Well, I mean, the police are gonna talk to you anyway. That’s what we do.
CORNWALL: Mm-hmm.
OFFICER: Okay? Now, the other thing that you’re allowed to do is apply to the Legal Aid Plan for legal assistance. So the-, Legal Aid is lawyers, but you apply through, um, Legal Aid basically to have them pay for it, if you can’t afford one at trial.
11:37
CORNWALL: Mm-hmm.
OFFICER: You understand that?
CORNWALL: Yeah, all right.
OFFICER: Okay. So that’s the other thing that we have to tell you, that you’re entitled to.
CORNWALL: Mm-hmm.
OFFICER: The other thing we have to tell you is you don’t have to talk about this if you don’t want to.
CORNWALL: Mm-hmm.
OFFICER: Okay? And the last thing that I have to tell you now is if you’ve spoken to anybody else, any police officers, anybody who you think is in authority, I don’t want that to influence you in making a statement to me.
CORNWALL: Mm-hmm.
OFFICER: Okay? You know what, if you wanna talk to me, you talk to me because you wanna talk to me.
CORNWALL: Mm-hmm.
OFFICER: Okay? But I do have some questions that I’m gonna ask you. And again, I can’t make you say anything.
CORNWALL: Yeah.
OFFICER: But I’m gonna talk to you because that’s what I do.
CORNWALL: Mm-hmm.
OFFICER: All right? And it’s my find-, m-, it’s my job-, basically what that is, is to-, i-, I’m on a, a truth seeking mission…
CORNWALL: Mm-hmm.
OFFICER: … if that makes sense to you. All I wanna do is find the truth.
CORNWALL: Mm-hmm.
OFFICER: I don’t wanna talk to somebody and put them in jail if they don’t need to go to jail.
CORNWALL: Mm-hmm.
OFFICER: So if somebody’s innocent, I wanna hear that. I wanna hear what, what happened.
CORNWALL: Mm-hmm.
OFFICER: Okay? So I’m gonna start at the beginning, this has got to do with the guy named Mike(ph)…
[92] At 11:51 of the transcript, the officer advises Mr. Cornwall that he is being videotaped.
[93] Later in the interview, at 12:11 of the transcript, the following conversation occurs:
OFFICER: Your phone’s ringing again.
CORNWALL: Do, do you get a call, sir, or?
OFFICER: It’s blocked.
CORNWALL: No, I’m saying, do, do you get like a phone call or something? Like could I get a phone call, or?
OFFICER: Well, it’s not the States, the States you’re entitled to a phone call.
CORNWALL: Oh, oh, okay, yeah.
OFFICER: But over here, you’re entitled to call duty counsel, so.
CORNWALL: Oh, okay, all right.
Evidence of Cst. Ashby
[94] Cst. Ashby spoke with one of the cells officers to confirm whether Mr. Cornwall had spoken with counsel before the interview. He therefore did not read to him from the printed Charter form again.
[95] He agreed that he did not tell Mr. Cornwall that anything that he said could be given in evidence against him.
[96] He said that it appeared to him that Mr. Cornwall was not sure who Duty Counsel was. He did not have a specific lawyer and so he brought back a book of Ontario lawyers to him. He said "it's up to you" because he did not want to influence Mr. Cornwall's choice. He interjected because it seemed strange to him but he understood that Mr. Cornwall had a right to look for a lawyer. Since Mr. Cornwall handed the book back to him, he did not think that Mr. Cornwall wanted to find a lawyer. He was not aware that he should have cautioned Mr. Cornwall that anything he said could be used against him.
[97] He agreed that an explanation of his rights should be done with due diligence and that the accused needs to understand their right to counsel. He agreed that there was an obligation to ensure that he understood.
[98] He agreed that he sometimes asks individuals why they wish to speak to counsel. He does this if he thinks the individual is stalling or that it is not appropriate in the circumstances. He will not normally allow individuals to speak to a lawyer if they already have. He will facilitate such a call if they satisfy him that it is appropriate. He thought it was strange that Mr. Cornwall was asking for a lawyer because he did not already have his own lawyer and had already spoken to Duty Counsel.
Evidence of Mr. Cornwall
[99] After speaking with Duty Counsel, Mr. Cornwall said that he was then moved to a larger room. Cst. Ashby asked if Mr. Cornwall was satisfied with the legal advice he had received and he said no and that he wanted to speak to a lawyer. Mr. Cornwall did not know if the advice that he was given was good or bad.
[100] He acknowledged that Cst. Ashby told him who Duty Counsel was and also gave him a book to get a lawyer. He started to go through that book but Cst. Ashby interrupted him. He felt that he did not have a right to speak to a lawyer. He agreed that he was told his rights again. He asked to speak to a lawyer again. He wanted to know the consequences of speaking to the police. He thought that he had to give a reason to speak to a lawyer and was not told that it was a right.
[101] He agreed that he had received advice not to speak to the police but he was not told of the potential consequences of his speaking to the police. He wanted to speak to a lawyer to get a better understanding of his rights and the consequences if he spoke to the police.
[102] He did not know that the information he gave could be used against him. He thought that the officer was on a" truth seeking mission" and that he had to answer his questions.
[103] He had never had his rights read to him before and had never been arrested before. Before these events occurred, he had been given a ticket for possession of marijuana but he was not arrested, cautioned or read his rights.
[104] He knew that he was under arrest for guns and robbery. He knew that was why he was being questioned. He knew he did not have to speak to the officers. Instead, he choose to speak and give information. He agreed that he wanted to put his side of the story on the record. He also wanted information about what Cst. Ashby had been told.
[105] There were no threats made by any other officers, no promises made by any other officers and he was never told that he had to speak to the officers.
Positions of the Parties
[106] In argument, the defence acknowledged that the statements were voluntary and withdrew that issue from my consideration. Since the statement was voluntary, I need not concern myself with the s. 7 argument: see R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at paras. 35-38.
[107] It is the defence position that Mr. Cornwall did not understand his rights and should have been allowed to speak to a lawyer. He expressed the view that he was not satisfied with Duty Counsel. Although Cst. Ashby provided Mr. Cornwall with a telephone book, Cst. Ashby remained in the room and interrupted Mr. Cornwall’s search. This effectively derailed his right to counsel.
[108] Mr. Cornwall was not aware that what he said could be used against him and accordingly did not have his rights properly explained to him.
[109] Given that he confirmed that he did not understand who Duty Counsel was, there is objective evidence that he was confused and needed further assistance from a lawyer.
[110] In response, the Crown acknowledges that Mr. Cornwall did not waive his rights to counsel. Rather, he was not diligent in exercising that right. Having been given the telephone book, he should have continued his search. When he returned the book to Cst. Ashby, Cst. Ashby was reasonable in believing that he could carry on with the questioning.
[111] There was no change in circumstance and no objective evidence to support the view that there was a change in circumstance such that Mr. Cornwall would be entitled to speak with counsel again.
[112] The Crown points out that Mr. Cornwall knew which questions to answer and which to avoid. He knew that he did not have to speak to the police.
[113] Finally, based on Mr. Cornwall’s faulty memory of the events, I should not be satisfied that his subjective beliefs, at the time, were as described in his evidence.
Analysis
[114] I am not satisfied that Mr. Cornwall understood his rights to counsel. Based on what he saw and heard, Cst. Ashby should have provided Mr. Cornwall with greater time and opportunity to speak with counsel of his choice or at least another opportunity to speak with Duty Counsel. I have found that Cst. Ashby provided Mr. Cornwall with much of his rights at the time of arrest; however, as Cst. Ashby said in the interview, that was done “quickly before”. Even though Mr. Cornwall was given detailed and exacting rights by Cst. McNamara, there is no evidence that Cst. Ashby knew that during the interview. Despite having spoken to Duty Counsel, Mr. Cornwall opens the interview by saying that he was not satisfied with what he was told and wished to speak with counsel of his own.
[115] Cst. Ashby said that if Mr. Cornwall was confused, he would have wanted him to speak with Duty Counsel again and would have allowed him to speak with Duty Counsel again. And yet it appears that Mr. Cornwall was indeed confused and Cst. Ashby did not facilitate that. Instead, he interrupted Mr. Cornwall as he looked for counsel in the lawyers phone book. I find that the circumstances had changed; Mr. Cornwall needed a further opportunity to speak with counsel.
[116] Although Cst. Ashby repeats Mr. Cornwall’s rights, the video shows that Cst. Ashby reviews them quickly and aggressively throughout. The entire interview is in that fashion. At the end of the review of Mr. Cornwall’s Charter rights, Cst. Ashby does not hesitate or ask if Mr. Cornwall wishes an opportunity to speak to counsel; he simply continues with the interview. There is no suggestion that the statements can be used against Mr. Cornwall.
[117] Mr. Cornwall seemed confused through much of the cross-examination and confused through much of the interview. I take that into consideration with respect to the circumstances at the time. This supports his evidence that he really did not understand what he was told by Duty Counsel.
[118] It appears from Mr. Cornwall’s request for “a phone call or something” towards the end of the interview, that he did not understand his rights.
[119] At no point in the interview did he say that he wanted to speak to Duty Counsel, rather he wanted to choose his own lawyer. And he was not given that opportunity as a result of Cst. Ashby’s interruptions.
[120] I am satisfied that Cst. Ashby did not properly inform Mr. Cornwall of his rights during the videotaped statement.
Based on those findings of fact, were Mr. Cornwall’s rights breached?
Analysis
[121] In R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, the Court considered the situation where there is reason to question a detainee’s understanding of his s. 10(b) rights. There it is said:
[52] If events indicate that a detainee who has waived his right to counsel may not have understood his right, the police should reiterate his right to consult counsel, to ensure that the purpose of s. 10(b) is fulfilled. More broadly, this may be taken to suggest that circumstances indicating that the detainee may not have understood the initial s. 10(b) advice of his right to counsel impose on the police a duty to give him a further opportunity to talk to a lawyer. Similarly, if the police undermine the legal advice that the detainee has received, this may have the effect of distorting or nullifying it. This undercuts the purpose of s. 10(b). In order to counteract this effect, it has been found necessary to give the detainee a further right to consult counsel.
(c) The General Principle Emerging From the Cases
[53] The general principle underlying the cases discussed above is this: where a detainee has already retained legal advice, the implementational duty on the police under s. 10(b) includes an obligation to provide the detainee with a reasonable opportunity to consult counsel again where a change of circumstances makes this necessary to fulfill the purpose of s. 10(b) of the Charter of providing the detainee with legal advice on his choice of whether to cooperate with the police investigation or decline to do so.
[54] The cases thus far offer examples of situations where the right of another consultation arises. However, the categories are not closed. Where the circumstances do not fall into a situation previously recognized, the question is whether a further opportunity to consult a lawyer is necessary to fulfill s. 10(b)’s purpose of providing the detainee with advice in the new or emergent situation.
[55] The change of circumstances, the cases suggest, must be objectively observable in order to trigger additional implementational duties for the police. It is not enough for the accused to assert, after the fact, that he was confused or needed help, absent objective indicators that renewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so.
[57] . . . It is assumed that the initial legal advice received was sufficient and correct in relation to how the detainee should exercise his or her rights in the context of the police investigation. The failure to provide an additional opportunity to consult counsel will constitute a breach of s. 10(b) only when it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewed contextually, is no longer sufficient or correct. This is consistent with the purpose of s. 10(b) to ensure that the detainee’s decision to cooperate with the police or not is informed as well as free.
[58] . . . Detainees have an absolute right to silence and, therefore, ultimate control over the interrogation. They have the right not to say anything, to decide what to say and when. It must be remembered that the opportunity to consult again with counsel is accompanied by a duty on the police to hold off further questioning until that consultation has taken place or a reasonable opportunity for it to occur has been provided. This may well result in long delays in pursuing the interrogation. A person’s Charter rights “must be exercised in a way that is reconcilable with the needs of society”. The purpose of the right to counsel is not to permit suspects, particularly sophisticated and assertive ones, to delay “needlessly and with impunity an investigation and even, in certain cases, to allow for an essential piece of evidence to be lost, destroyed or [for whatever reasons, made] impossible to obtain”.
[65] We conclude that the principles and case-law do not support the view that a request, without more, is sufficient to retrigger the s. 10(b) right to counsel and to be advised thereof. What is required is a change in circumstances that suggests that the choice faced by the accused has been significantly altered, requiring further advice on the new situation, in order to fulfill the purpose of s. 10(b) of providing the accused with legal advice relevant to the choice of whether to cooperate with the police investigation or not. Police tactics short of such a change may result in the Crown being unable to prove beyond a reasonable doubt that a subsequent statement was voluntary, rendering it inadmissible. But it does not follow that the procedural rights granted by s. 10(b) have been breached. [References removed]
[122] In R. v. Brydges, 1990 CanLII 123 (SCC), [1990], 1 S.C.R. 190, at para. 16, Lamer J. said:
Once the appellant in effect requested the assistance of counsel it was incumbent on the police officer to facilitate contact with counsel by giving the appellant a reasonable opportunity to exercise his right to counsel. On the specific facts of this case, the Court is faced with the following question: when an accused expresses a concern that his inability to afford a lawyer is an impediment to the exercise of the right to counsel, is there a duty on the police to inform him of the existence of duty counsel and the ability to apply for Legal Aid? In my view there is. I say this because imposing this duty on the police in these circumstances is consistent with the purpose underlying the right to retain and instruct counsel. A detainee is advised of the right to retain and instruct counsel without delay because it is upon arrest or detention that an accused is in immediate need of legal advice. As I stated in Manninen, one of the main functions of counsel at this early stage of detention is to confirm the existence of the right to remain silent and to advise the detainee about how to exercise that right. It is not always the case that immediately upon detention an accused will be concerned about retaining the lawyer that will eventually represent him at a trial, if there is one. Rather, one of the important reasons for retaining legal advice without delay upon being detained is linked to the protection of the right against self-incrimination. This is precisely the reason that there is a duty on the police to cease questioning the detainee until he has had a reasonable opportunity to retain and instruct counsel.[References and emphasis removed]
[123] Finally, in R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, at paras. 23-24, McLachlin C.J. and Charron J. held that:
. . . .As we discussed in Sinclair, the gradual revelation to the detainee of the evidence that incriminates him does not, without more, give rise under s. 10(b) to a renewed right to consult with counsel. However, where developments in the investigation suggest that the detainee may be confused about his choices and right to remain silent, this may trigger the right to a renewed consultation with a lawyer under s. 10(b).
Arguably, Mr. McCrimmon’s expression of vulnerability and ignorance of the law, when considered in isolation, could indicate such confusion. However, when the circumstances are viewed as a whole, it is clear that Mr. McCrimmon understood his right to silence. Sgt. Proulx repeatedly confirmed that it was Mr. McCrimmon’s choice whether to speak or not. It is apparent from Mr. McCrimmon’s interjections in the course of the interview that he understood this. As the trial judge put it on the voir dire: “He clearly discerned which questions might put him in jeopardy and indicated he did not wish to answer those questions” (para. 46).
[124] There is nothing in the transcript and the circumstances as a whole that suggests that Mr. Cornwall understood which questions he might choose to answer or not. There is no doubt that Cst. Ashby repeated that Mr. Cornwall did not have to answer his questions. But, on a balance of probabilities, I accept Mr. Cornwall’s evidence that he did not understand what use could be made of his answers if he gave them. A further opportunity to speak with counsel would have put that question to rest. There is no good reason why that opportunity was not granted to Mr. Cornwall when he demonstrated that he did not understand. Handing back the lawyers phone book was not a waiver of his rights or a failure to exercise his rights diligently; it was a capitulation to Cst. Ashby’s continued questioning.
[125] On that basis, I find that Cst. Ashby’s conduct breached Mr. Cornwall’s right to retain and instruct counsel without delay.
Should the evidence be excluded pursuant to [s. 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?
Positions of the Parties
[126] Following the analysis of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the defence submits that there was a degree of police trickery in Cst. Ashby’s questions. He discouraged Mr. Cornwall’s mode of selecting counsel in order to discourage him from exercising his right. He failed to advise Mr. Cornwall that his statement could be used against him. The defence submits that this is a serious breach and militates against the use of the evidence being admitted.
[127] Secondly, a breach of Mr. Cornwall’s right to silence has a significant impact on Mr. Cornwall’s rights and that militates against the evidence.
[128] While the statement is important to the Crown’s case, the defence submits that the seriousness of the police conduct and the impact on Mr. Cornwall outweighs society’s interest in adjudicating the case on its merits.
[129] In response, the Crown submits that if there was a breach, it was not deliberate, but rather a technical breach. Ultimately, says the Crown, the statement was exculpatory; however she acknowledges that without this statement, the Crown’s case cannot succeed.
Analysis
[130] In Grant, the Court said:
[92] The three lines of inquiry described above support the presumptive general, although not automatic, exclusion of statements obtained in breach of the Charter.
[93] The first inquiry focuses on whether admission of the evidence would harm the repute of justice by associating the courts with illegal police conduct. Police conduct in obtaining statements has long been strongly constrained. The preservation of public confidence in the justice system requires that the police adhere to the Charter in obtaining statements from a detained accused.
[94] The negative impact on the justice system of admitting evidence obtained through police misconduct varies with the seriousness of the violation. The impression that courts condone serious police misconduct is more harmful to the repute of the justice system than the acceptance of minor or inadvertent slips.
[95] The second inquiry considers the extent to which the breach actually undermined the interests protected by the right infringed. Again, the potential to harm the repute of the justice system varies with the seriousness of the impingement on the individual’s protected interests. As noted, the right violated by unlawfully obtained statements is often the right to counsel under s. 10(b). The failure to advise of the right to counsel undermines the detainee’s right to make a meaningful and informed choice whether to speak, the related right to silence, and, most fundamentally, the protection against testimonial self-incrimination. These rights protect the individual’s interest in liberty and autonomy. Violation of these fundamental rights tends to militate in favour of excluding the statement.
[96] This said, particular circumstances may attenuate the impact of a Charter breach on the protected interests of the accused from whom a statement is obtained in breach of the Charter. For instance, if an individual is clearly informed of his or her choice to speak to the police, but compliance with s. 10(b) was technically defective at either the informational or implementational stage, the impact on the liberty and autonomy interests of the accused in making an informed choice may be reduced. Likewise, when a statement is made spontaneously following a Charter breach, or in the exceptional circumstances where it can confidently be said that the statement in question would have been made notwithstanding the Charter breach, the impact of the breach on the accused’s protected interest in informed choice may be less. Absent such circumstances, the analysis under this line of inquiry supports the general exclusion of statements taken in breach of the Charter.
[97] The third inquiry focuses on the public interest in having the case tried fairly on its merits. This may lead to consideration of the reliability of the evidence. Just as involuntary confessions are suspect on grounds of reliability, so may, on occasion, be statements taken in contravention of the Charter. Detained by the police and without a lawyer, a suspect may make statements that are based more on a misconceived idea of how to get out of his or her predicament than on the truth. This danger, where present, undercuts the argument that the illegally obtained statement is necessary for a trial of the merits.
[98] In summary, the heightened concern with proper police conduct in obtaining statements from suspects and the centrality of the protected interests affected will in most cases favour exclusion of statements taken in breach of the Charter, while the third factor, obtaining a decision on the merits, may be attenuated by lack of reliability. This, together with the common law’s historic tendency to treat statements of the accused differently from other evidence, explains why such statements tend to be excluded under s. 24(2).
[131] A breach of a detainee’s right to counsel is not a technical breach. Cst. Ashby has been a police officer almost as long as Mr. Cornwall has been alive. The video shows Cst. Ashby’s frustration and impatience with Mr. Cornwall wishing to speak with counsel and not understanding his position. It was not for Cst. Ashby to tell Mr. Cornwall what a lawyer would tell him; it was Cst. Ashby’s obligation to facilitate Mr. Cornwall’s right to have a lawyer give that information. This is a serious breach and that tends to favour the exclusion of the statement.
[132] As the Supreme Court has made clear, the admission of an accused’s statement made in breach of his or her rights has a serious impact on the accused and that militates toward the exclusion of the statement.
[133] Both parties acknowledge that if the statement is excluded, the Crown cannot proceed with the offences. That suggests that the evidence should be admitted for the trial to occur.
[134] Considering all of those factors, I find that the statement should be excluded from the trial. Grant requires me to consider the repute of the administration of justice, with less emphasis on this individual case than on the long term impact of admitting this evidence: See R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253. The evidence at issue here was obtained by breaching Mr. Cornwall’s right to counsel. The admission of that evidence would bring the administration of justice into disrepute by eroding the protection offered by s. 10(b) of the Charter.
Lemon J.
Released: March 18, 2016
CITATION: R. v. Cornwall, 2016 ONSC 1756
COURT FILE NO.: CRIMJ(P) 875/15
DATE: 2016 03 18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
JAHVOY CORNWALL
RULING
Lemon J.
Released: March 18, 2016