Court File and Parties

Court File No.: CR-15-70000089-0000 Date: 20160411 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – Joel Coveny Defendant

Counsel: Elizabeth Jackson, for the Crown D. Sid Freeman, for the Defence

Heard at Toronto: April 7, 2016

Low J. (Orally)

Reasons for Ruling on Application Under S. 10(b) of the Charter

[1] On January 8, 2014, the accused was at a show cause hearing in Court 116 at Old City Hall. He was involved in an incident which led to the charges now before the court. The accused is charged, inter alia, with intimidation of the presiding judge.

[2] On January 21, 2014, Detective Lemaitre and P.C. Morgan of the Toronto Hold Up Squad attended on Mr. Coveny at the Toronto East Detention Centre to interview him concerning a robbery with which he was at that time charged. Mr. Coveny had had interactions with the officers in the past in relation to other charges. The interview appears to have been civil and the officers courteous and respectful.

[3] The meeting was brief. It was recorded in audio format. No part of the meeting was not recorded. I am satisfied beyond reasonable doubt that the utterances made by Mr. Coveny at the interview were voluntary. His verbalizations were clear and his conversation was lucid. Apart from the cut to his hand which was sustained in the incident of January 8, there were no indicia of injury or of illness or lack of operating mind. There were no threats or inducements.

[4] The Crown seeks to adduce in evidence a segment of the recording wherein Mr. Coveny asked the officers what they knew about the incident of January 8. The Crown also seeks to adduce in evidence the segment of the interview wherein one of the officers asked Mr. Coveny what had set him off and in response to which Mr. Coveny made a comment that could arguably lead the trier of fact at this trial to infer his state of mind and his intention in Court 116 on January 8. These segments are transcribed at pages 10 to 13 and at page 16 of the transcript of the audio recording.

[5] The purpose of the attendance from the officers’ perspective was to investigate the robbery. I accept their evidence that they did not know about the incident of January 8 and that they had no intention of investigating that incident. They did not inquire of Mr. Coveny in what court room the incident occurred, when it occurred or what happened. It was only response to a later inquiry and request by the officer in charge of this prosecution that Detective Lemaitre and Officer Morgan made the record of the interview available.

[6] The officers advised Mr. Coveny of his right to counsel and of his right to silence. Mr. Coveny indicated that he did not wish to say anything about the robbery. He told the officers the name of his lawyer, but did not ask to speak to her.

[7] The officers did not depart, but engaged Mr. Coveny in conversation and told Mr. Coveny of some of the evidence that they had concerning the robbery. In the course of their doing so, Mr. Coveny changed the topic of the conversation to the incident of January 8. He asked the officers what they knew about the incident and asked their opinion as to what he might be charged with. He told them that the incident resulted in a smashed courtroom window and an injury to Mr. Coveny’s hand.

[8] The officers told Mr. Coveny that they had never heard about the incident and Detective Lemaitre stated “well they’ll probably charge you with mischief if you broke something”.

[9] Following that, it was Mr. Coveny who articulated the concept of intimidation to which Detective Lemaitre commented, “some or not, not intimidation”. Both officers commented that it could be contempt of court.

[10] The officers brought the conversation back to the robbery charge and to Mr. Coveny’s substance history around heroin and crack. In the course of that discussion, Detective Lemaitre asked, “when you did that like on your hand there, were you going through withdrawal?”

[11] The context was a discussion about the underlying addictions that led to Mr. Coveny’s previous sprees of robberies.

[12] The officers did not intend to switch the direction of the investigation to the incident of January 8.

[13] Nevertheless, however, Mr. Coveny made the remark, “the judge and how he was talking to me, it was just he’s talking down to me and I think he brought me back to my – I don’t know what happened like some sort of (exhalation) I don’t know.”

[14] It is said that this remark is important evidence as to Mr. Coveny’s intention when he leapt out of the prisoner’s box and toward the dais and the presiding judge.

[15] Defence argues that the officers had a duty to recaution Mr. Coveny once it became apparent that another set of charges was in contemplation.

[16] The officers did not recaution Mr. Coveny as, in their minds, and perhaps in a state of tunnel vision, they were there solely to investigate the robbery.

[17] There is an obligation on the police to restate the accused’s right to counsel when there is a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the initial caution see R. v. Evans, [1991] 1 S.C.R. 869 at para 48.

[18] R. v Sawatsky, [1997] O.J. No. 3561; 35 O.R. (3d) 767 instructs in a more detailed way as to the point at which the duty to reiterate the right to counsel arises. At para 30, 33, 36, and 38 Doherty J.A. writes:

30 The link between a detained person’s need to understand the extent of her jeopardy, that is the nature and extent of her risk of self-incrimination, and the effective exercise of the right to counsel, provides the key to the determination of when the police will be required to reiterate the right to counsel in the course of an ongoing detention. If the risk of self-incrimination changes, the right to counsel must be restated so that a detainee can decide in the face of the new risk whether to exercise her right to counsel. The risk may change either because the reason for the detention changes or the focus of the police inquiry changes. ...

33 I also reject the contention that the police are not under an obligation to re-advise a detainee of her s. 10(b) rights where it is the detainee, rather than the police, who initiate the shift in the focus of the investigation. Where, as here, the detainee brings up other offences during an interview, the police will not be required to immediately advise the detainee of her s. 10(b) rights in relation to the other offences. If, however, the police embark on an investigation of the offences brought up by the detainee, they must restate the detainee’s s. 10(b) rights before questioning her concerning those offences: R. v. Whittle, supra, at p. 35.

36 … Once the police have a realistic indication that a detainee may incriminate herself in a different and unrelated offence, the police should, if they wish to pursue that area of investigation, reiterate the detainee’s right to counsel and connect that right to the new allegations.

38 In other situations, information provided by the detainee will suffice to create a realistic risk of self-incrimination in connection with the different offence. Where the information provided is sufficiently specific and credible so as to provide reasonable grounds to take the information “seriously”, then any further questions pass beyond the exploratory stage and become an investigation of that different office. Before proceeding further with questions, the police must re-advise the detainee of her s. 10(b) rights.

[19] The issue is therefore whether and when, in the circumstances of this interview, there was a realistic risk that Mr. Coveny might self-incriminate in relation to offences that flow from the January 8 incident.

[20] In my view, the police either were or should have been alive to the possibility that charges would flow from the incident. They were apprised that there was an incident, and at the outset were apprised by Mr. Coveny that he thought he might be charged with intimidation. That much information flowed out of Mr. Coveny in relatively spontaneous manner and was unsolicited by the officers. To that point, no duty to reiterate right to counsel arose. Had the matter gone no further, it would be difficult to argue that there had been a breach of s. 10(b).

[21] Despite these two officers’ lack of particulars as to the place and date of the incident, it was apparent from Mr. Coveny’s disclosure that the incident was in court and that some act of violence had taken place. There would have been a record and witnesses. That should have been apparent to the officers and, in my view, it was reasonable in the circumstances to take seriously the prospect of some charge or charges arising from the incident as anticipated by Mr. Coveny himself. The fact that there may be times when in court incidents do not result in criminal charges does not diminish this prospect.

[22] Had the conversation around Mr. Coveny’s drug problems continued solely in a general vein, there would likely have been no self-incriminating utterance.

[23] The turning point, in my view, is when Det. Lemaitre brought the conversation from the general history of heroin and crack use to the specific incident that resulted in the injury to Mr. Coveny’s hand which they were told occurred during the incident in court.

[24] When the question was put to Mr. Coveny, “like what, what set you off?”, whether the officer was conscious of it or not, the investigation took a turn away from the robbery and toward the incident in court. The question was, in effect, “why did you do what you did?”

[25] In my view, if that question was going to be put to Mr. Coveny, it could realistically be expected that his response would reveal his state of mind and thus his intention. These go directly to mens rea and the answer could realistically be capable of self-incrimination.

[26] I find that there was a breach of s. 10(b) in the failure to re-advise of right to counsel in advance of the inquiry of Mr. Coveny as to his state of mind at the time of the incident. I find no breach in relation to the articulation by Mr. Coveny of a possible charge of intimidation in the course of his inquiry of the officers as to what charges might be laid against him.

[27] I turn now to whether the utterance (that found at page 16 of the transcript) should be excluded under s. 24(2) of the Charter.

[28] What was the seriousness of the Charter infringing conduct? In my view, the infringement was inadvertent. The officers were engaged in an investigation of a robbery. That was their focus and, to use the phrase used by Officer Morgan in his testimony, they had a case of tunnel vision. They were trying to engage Mr. Coveny in a discussion concerning his drug use problem – possibly with a view to obtaining a statement by exploring a motive for the robbery for which he had been arrested. I find that it was out of inadvertence and mere curiosity that Det. Lemaitre turned the conversation to the underlying cause for Mr. Coveny’s actions in court the day he injured his hand. Nevertheless, despite the absence of deliberate flouting of Mr. Coveny’s Charter rights, it seems to me not an excessive expectation that police officers will be alive to the nuances of their interrogations and observant of their duty to recaution where, as here, the subject matter of a different offence has clearly been put on the table.

[29] While the Charter breach was an inadvertency in this case, the impact was a deprivation of Mr. Coveny’s right to remain silent and not to self-incriminate. As Crown argues, the utterance of Mr. Coveny is the only piece of direct evidence as to the state of his mind. As the utterance was obtained in breach of Mr. Coveny’s Charter rights, and given the power that the statement potentially has in the determination of mens rea in this prosecution, the impact on Mr. Coveny is great.

[30] Finally, I note that the charge of intimidation is capable of being prosecuted on other evidence, the viva voce evidence of witnesses who saw the actions of Mr. Coveny and who saw his demeanor in relation to the presiding judge. The case will not collapse for lack of the utterance.

[31] Evidence obtained in breach of an accused’s fundamental rights should ordinarily be excluded. On balance, I am of the view that exclusion of the utterance in issue will not bring the administration of justice into disrepute.

[32] The application is allowed in respect of the utterances on page 16 of the transcript only.

Low J.

Date of reasons for ruling: April 11, 2016 Date of reasons released: May 12, 2016