R. v. Ibrahim, 2016 ONSC 485

R. v. Ibrahim, 2016 ONSC 485

CITATION: R. v. Ibrahim, 2016 ONSC 485 COURT FILE NO.: 13-70000774 DATE: 2016-03-04

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ADIB IBRAHIM Defendant

COUNSEL: Hank Goody and Derek Ishak, for the Crown Peter Thorning and Richard Diniz, for the Defendant

HEARD: September 18, 21, 22, 28, 29, 30, 2015

APPLICATION #4: RE VOLUNTARINESS OF ACCUSED’S STATEMENT APPLICATION #5: RE ALLEGED BREACHES OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

REASONS FOR DECISION

CLARK J.

INTRODUCTION

1In the late afternoon of May 14, 2012, while operating his taxi on King St. E. in Toronto, the accused, Adib Ibrahim, struck and killed Ralph Bissonette, who was riding a skateboard. The Toronto Police Service (“TPS”) arrived to investigate and, shortly after the incident, an officer arrested Mr. Ibrahim for dangerous driving. That same evening, while Mr. Ibrahim was still in custody, the charge was upgraded to second degree murder.

2On May 15, commencing shortly after 3:00 a.m., Mr. Ibrahim gave a statement to homicide investigators. There are two applications before the court. In the first, the Crown applies to have Mr. Ibrahim’s statement ruled voluntary. Mr. Ibrahim resists that application. In the second, Mr. Ibrahim applies to have the court rule that the statement was taken in violation of his right to counsel.

3At the suggestion of both parties, the court conducted what is generally referred to as a “blended voir dire”, in which I heard the evidence on both applications together. On September 30, 2015, in a brief oral pronouncement, I allowed the Crown’s application and dismissed Mr. Ibrahim’s application. I indicated at that time that I would give written reasons as soon as time might permit. These are those reasons.

THE FACTS

4There is very little disagreement on the facts, which were, for the most part, formally admitted at the outset of the hearing of these applications. Rather, it is the legal effect of those facts upon which the parties disagree.

5The incident took place at approximately 6:00 p.m. Within minutes, police and other emergency personnel arrived. Paramedics got no vital signs from Mr. Bissonette at the scene. He was rushed to St. Michael’s Hospital, where he was pronounced dead a short time later.

6At 6:08 p.m., Sgt. Alan Cakebread, the senior officer on scene, instructed P/C Brian Smith to arrest the accused for dangerous driving causing bodily harm. By mistake, Smith arrested the accused for dangerous driving simpliciter. Smith cautioned Mr. Ibrahim that he had the right to remain silent and advised him of his right to counsel. In response, Mr. Ibrahim indicated that he understood his rights and that he wanted to speak to a lawyer, but did not know any. Smith told him of the availability of duty counsel and the accused indicated that he would like to speak to duty counsel.

7At 6:16 p.m., Smith transported Mr. Ibrahim to 51 Division police station, arriving at 6:18 p.m. However, because other officers were ahead of Smith, waiting to book prisoners into the station, Mr. Ibrahim was not booked in until approximately 50 minutes later.

8At 6:26 p.m., the TPS Duty Desk staff sergeant telephoned D/Sgt. Terry Browne of the Homicide Squad, who was the on-call officer that evening. The staff sergeant told Browne that Mr. Bissonette had been pronounced dead and that witnesses had indicated that the taxi driver may have deliberately struck him following a confrontation.

9At 6:52 p.m., Browne spoke to S/Sgt. Texeira of TPS Traffic Services and learned that Mr. Ibrahim had not yet been presented to the booking officer at 51 Division. Browne, instructed Texeira to ensure:

(i) that Mr. Ibrahim be advised that the charge might be upgraded to murder;

(ii) that he be advised of his right to counsel; and

(iii) that he be permitted to speak with counsel of his choice.

10Browne then contacted his partner, Det. Scott Whittemore, to alert him that they were required to investigate the death. He then embarked upon certain necessary duties, including, visiting the scene, arranging to copy and view a video recording of part of the incident (captured by a closed circuit television camera on a nearby building), confirming the identity of the deceased, speaking to his next of kin, and attending the hospital to examine the deceased’s injuries.

11At 7:06 p.m., Smith paraded Mr. Ibrahim before Sgt. Thomas Steeves, the booking sergeant at 51 Division. Despite having arrested Mr. Ibrahim on a charge of dangerous driving simpliciter, Smith advised Sgt. Steeves that he had arrested him on a charge of dangerous driving causing bodily harm. Mr. Ibrahim said that he understood why he had been arrested and understood his rights. Pursuant to Browne’s instructions, Steeves told Mr. Ibrahim the investigation was still in its early stages, but that the charge might be changed to murder. Mr. Ibrahim said that he wanted to speak to a lawyer, but did not have a particular lawyer in mind.

12Steeves told Mr. Ibrahim that he would be lodged in a cell, but would have reasonable use of the telephone. He assigned Smith to guard the door to the room and instructed him that no other officer was to have any unauthorized contact with Mr. Ibrahim.

13At 7:22 p.m., with the booking procedure complete, Mr. Ibrahim was taken from the booking hall to a cell area where he was lodged in a combination cell/interview room.

14At 8:49 p.m., Det. Whittemore arrived at 51 Division.

15Smith made no efforts to contact duty counsel until, at 9:10 p.m., Whittemore, upon learning that Mr. Ibrahim had still not spoken to counsel, instructed Smith to do so.

16At 9:12 p.m., Smith placed the call, as directed.

17At 9:14 p.m., Smith entered the room in which Mr. Ibrahim was being held to advise that he had placed a call to duty counsel and that counsel would be calling back to speak with him.

18At 9:16 p.m., Smith asked Mr. Ibrahim if he wished to use the toilet; Mr. Ibrahim declined, but said that he would like a drink of water.

19At 9:18 p.m., duty counsel¹ returned Smith’s call and spoke with Mr. Ibrahim until 9:26 p.m., at which time Mr. Ibrahim knocked on the door to advise Smith that he had finished.

20At 9:30 p.m., Smith gave Mr. Ibrahim a bottle of juice.

21At 10:59 p.m., Smith took Mr. Ibrahim to the toilet and returned him to the interview room shortly thereafter.

22At 11:29 p.m., Browne and Whittemore entered the interview room and identified themselves to Mr. Ibrahim, audio recording their conversation with him. Browne told him some of the results of his investigation to that point, including the fact that Bissonnette had died, and advised that, based upon those results, he was re-arresting him on a charge of second degree murder.

23Browne then read to Mr. Ibrahim, from the back of his memo book, the standard caution and his right to counsel. This recitation included the fact that Mr. Ibrahim had the right to retain and instruct counsel without delay, and to receive advice from a lawyer of his own choosing or from a free Legal Aid lawyer. Mr. Ibrahim indicated that he understood and said that he had already spoken to duty counsel, but wished, at that moment, to speak to his wife. Browne told him that he would be able to speak with his wife. He also told him that they would try to put him in contact with counsel of his choice, if he had one, or, in the alternative, that they would contact duty counsel for him and that, after he had spoken with counsel, they would like to speak with him about what had occurred that evening.

24At 11:40 p.m., Browne concluded the conversation in order to facilitate Mr. Ibrahim speaking to his wife and to counsel. Browne detailed Whittemore to contact his wife. Whittemore tried, unsuccessfully, to contact her at a number Mr. Ibrahim had given him.

25At 11:59 p.m., quite by chance, Browne met Mr. Ibrahim’s wife in the public area of the police station. He told her that her husband was charged with murder and would go to court in the morning.

26At 12:01 a.m., on May 15, 2012, Browne phoned Whittemore to advise that Mr. Ibrahim’s wife would be calling.

27At 12:02 a.m., Mr. Ibrahim’s wife’s call was answered by Smith, who gave the phone to Mr. Ibrahim in the interview room. He then left, locking the door behind him, to facilitate privacy. At 12:13 a.m., Mr. Ibrahim completed his conversation with his wife.

28Following her conversation with her husband, Mrs. Ibrahim gave Browne a piece of paper on which were written three names: Barry Fox (the lawyer) and “Jacob” and “Melese” (not lawyers), with phone numbers for each. Browne gave the paper to Whittemore, and asked him to contact Mr. Fox to advise him that Mr. Ibrahim had been charged with second degree murder.

29At 12:16 a.m., Mr. Ibrahim asked to be taken to the toilet. Smith escorted him to the washroom and returned him into the interview room at 12:20 a.m.

30At 12:26 a.m., at Browne’s request, Whittemore called Mr. Fox at the number provided. Receiving no answer, he left a message.

31At 12:30 a.m., Whittemore advised Browne that he had left a message for Fox, but had gotten no response. Browne told Whittemore to inform Mr. Ibrahim that they had been unable to contact Fox and to ask him if there was anyone other than Fox to whom he wished to speak. Mr. Ibrahim advised that there was no one else with whom he wished to speak. Upon learning that, Browne detailed Whittemore to contact duty counsel again to advise that Mr. Ibrahim was now charged with second degree murder.

32At 1:01 a.m., not having heard from Mr. Fox, Whittemore called him again. Receiving no answer, he left a second message, which also was not returned. Whittemore informed Browne that Mr. Fox had not responded to the messages he had left for him. Upon learning that, Browne told Whittemore to ask Mr. Ibrahim if there was another lawyer to whom he wished to speak.

33At 1:58 a.m., Whittemore entered Interview Room #3 and showed Mr. Ibrahim the paper with the three names on it. Whittemore told him that he had left messages for Fox, but had gotten no response. He then asked Mr. Ibrahim if he wanted to speak to either Melese or Jacob. Mr. Ibrahim responded that it was too late to phone either. Whittemore then asked if he wanted to speak to any other lawyer or to duty counsel. Mr. Ibrahim responded in a single word, “No.” Whittemore told him that, because he was now charged with murder, he would like him to speak to duty counsel again. Mr. Ibrahim asked what time he would be taken to court in the morning. When Whittemore told him 10:00 a.m., Mr. Ibrahim asked if he could speak to Mr. Fox before that. Whittemore said that he could and also said that, if Fox were to return his calls while he (Ibrahim) was still in the station, he would ensure that Fox’s call was put through to him.

34At 2:00 a.m., Whittemore left the room.

35At 2:30 a.m., when informed by Whittemore there was no counsel other than Mr. Fox to whom Mr. Ibrahim wished to speak, Browne detailed Whittemore to contact duty counsel again regarding the charge of murder. As directed, Whittemore called duty counsel and left a message.

36At 2:38 a.m., a duty counsel² returned Whittemore’s call. Whittemore explained the upgraded charge the accused was facing and that Mr. Fox had not responded to the messages he had left for him.

37At 2:40 a.m., the accused accepted the phone in Interview Room #3 from Whittemore. Whittemore and Smith then left the room, so that the accused could speak with duty counsel in private. Mr. Ibrahim spoke with duty counsel for approximately two minutes.

38At 3:04 a.m., Browne and Whittemore attended Interview Room #3 and escorted Mr. Ibrahim into Interview Room #2 to conduct a video recorded interview.

39At 3:07 a.m., the officers commenced an electronically recorded conversation with Mr. Ibrahim. At the outset, Mr. Ibrahim confirmed he had spoken to duty counsel respecting the upgraded charge of murder. He went on to volunteer that he had been told he did not have to speak with the officers.

40Browne reiterated to Mr. Ibrahim that he did not have to say anything or answer any questions the officers were going to ask him. He administered the standard primary and secondary cautions again. Mr. Ibrahim indicated that he understood both cautions. Browne also explained that Whittemore had been unable to contact Fox, but confirmed with Mr. Ibrahim that, because of his arrest for murder, he had spoken a second time to duty counsel.

41Browne told Mr. Ibrahim that “if you choose to speak to us right now, it has to be of your own free will.” Mr. Ibrahim acknowledged he understood. When Browne asked him if he wished to say anything in answer to the charge, the accused said, “No; I’m not saying anything”.

42Browne then reiterated that Mr. Ibrahim was not obliged to say anything, whatsoever, but said that he wanted to give him an overview of the investigation to that point, so that he could make a conscious decision whether he wanted to speak or not. Before proceeding further, Browne confirmed that he understood and was not confused by anything he had been told. Browne went on to say that, after hearing what he (Browne) was going to tell him, it would be his decision whether or not to participate in the conversation. Mr. Ibrahim said that he understood. Following completion of those procedures, Mr. Ibrahim then proceeded to give a statement that lasted until approximately 3:37 a.m.

APPLICATION #1: VOLUNTARINESS

43Whereas under the traditional confessions rule the court was only concerned with whether threats had been made or inducements had been held out, under the rule as it presently stands, in deciding whether to admit the statement of an accused person the Court must take an expansive view of the concept of voluntariness: R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38.

(i) Threats / Inducements

44Speaking generally, for a threat to vitiate the voluntariness of a statement, it must be such that it can meaningfully be said that it might have influenced the accused to make the impugned statement: R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 15. As Watt J. (as he then was) stated in R. v. Roy, [2002] O.J. No. 5541 (S.C.J.), at para. 240, aff'd, (2003), 2003 CanLII 4272 (ON CA), 180 C.C.C. (3d) 298 (Ont. C.A.), "[t]here must be some link, nexus, or connection between the police conduct and the decision to speak. Context is critical."

45There is no evidence, and no suggestion in either oral or written argument, that the accused was either threatened or offered any inducement.

(ii) Operating Mind

46To be voluntary, a statement must be the product of an operating mind: i.e.: the accused must have the mental wherewithal to understand and make the choices inherent in the confessions rule, i.e.: the right to silence and the right to counsel. Further, he must be capable of understanding what he is saying and what is being said to him, including a caution that what he says can be used against him: R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914.

47There is no evidence, and no suggestion in either oral or written argument, that the accused lacked an operating mind.

(iii) Trickery

48Police trickery can, in certain instances, vitiate voluntariness, but a trick will only render a statement involuntary if (i) it involves a threat or an inducement (R. v. Robertson (1975), 1975 CanLII 1436 (ON CA), 21 C.C.C. (2d) 385 (Ont. C.A.), at p. 417, leave to appeal ref'd, 21 C.C.C. (2d) 385n) or (ii) it is of such a nature as to shock the community: Oickle, at para. 67.

49There is no evidence, and no suggestion in either oral or written argument, that the police employed any trickery.

(iv) Oppression

50A statement will be involuntary where it is the product of an atmosphere of oppression. It is on this sole ground that defence counsel impugns the voluntariness of Mr. Ibrahim’s statement.

51For a statement to be involuntary on this ground, “the conduct of authorities [must be] so oppressive that the accused’s free will is effectively overborne, thereby sapping the will and strength of the interviewee to make an independent choice to speak or remain silent”: A.W. Bryant, S.N. Lederman & M.K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3rd ed. (Markham: LexisNexis Canada, 2009), at p. 448.

52Oppression can arise from inhumane conditions, which include: "depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time": Oickle, at para. 60.

53I have watched and listened to the recording made in the arresting officer’s car. It is evident from the recording that Smith was at all times polite with Mr. Ibrahim.

54At 55 Division, the booking video reveals that Mr. Ibrahim was treated courteously by the booking sergeant, Sgt. Steeves, and the other officers involved in the booking process.

55After he was booked into the station and searched, Mr. Ibrahim was then taken to the Criminal Investigation Bureau (“CIB”), where he had some very limited further contact with Smith, whom Steeves had directed to keep watch on him.

56There is no evidence, and no suggestion in either oral or written argument, that Mr. Ibrahim was treated other than courteously at any time when he is not on video.

57When Smith looked into the interview room on one occasion, Mr. Ibrahim had his head down on the table and appeared to be sleeping. On another occasions, Smith said, he was sitting on the floor with his back against the wall.

58On one occasion, Mr. Ibrahim asked Smith if he could have a glass of water. Smith brought him a bottle of juice. On two other, occasions, he took him to use the toilet.

59Mr. Ibrahim’s next contact with anyone in authority was with the Homicide Squad officers. I have listened to the audiotaped recording of their initial contact with him and seen and heard the video interview they conducted with him.

60There was only one brief contact that the Whittemore had with Mr. Ibrahim that he did not record. That occurred when he entered the room to ask him if he wished to speak to duty counsel again. He did not record the exchange verbatim, but made notes of what transpired. Whittemore testified that the conversation was short and matter of fact. The defence does not suggest otherwise.

61Mr. Thorning argued that the time Mr. Ibrahim had been in custody when the officers finally interviewed him was so long that it would have made Mr. Ibrahim much more nervous and thus unable to resist their efforts to take a statement from him. In effect, counsel asserts that the simple effluxion of time raises a reasonable doubt concerning whether Mr. Ibrahim would have become was so distraught that he would not have had the presence of mind to be able to freely and voluntarily decide whether to speak to the officers or not.

62Mr. Ibrahim’s ability to resist was also compromised, counsel suggested, by the fact that, when he asked about Mr. Bissonette’s medical condition, Sgt. Steeves, the booking sergeant, did not tell him that Mr. Bissonette had died. Steeves acknowledged in cross-examination that he lied to Mr. Ibrahim when he said that he did not know what Mr. Bissonette’s condition was. He testified that the reason he was not forthright with him was that the matter was to be dealt with by the homicide detectives. That being so, he thought it was not his place to give Mr. Ibrahim any information relating to the investigation. Further, he said that he felt sorry for Mr. Ibrahim and did not want to upset him. I accept Steeve’s evidence on these points.

63There is no evidence before me to support Mr. Thorning’s hypothesis, even to the extent of raising a reasonable doubt, that any of the things complained of had an effect on Mr. Ibrahim’s decision to speak to the homicide investigators.

64Speaking generally, the case law reveals that many statements have been ruled voluntary notwithstanding the accused had been in custody for much longer, and in more onerous conditions, than Mr. Ibrahim.

65As noted above, Smith said that, on those occasions when he looked in on him, Mr. Ibrahim was either sleeping or sitting on the floor with his back against the wall. Likewise, when he asked for a glass of water and, later, to be taken to the washroom, there was nothing about those interactions to suggest that he was emotionally distraught. Nothing suggests that he had become upset to the point that he would have been unable to make an informed choice whether to speak to the officers and I reject this submission.

66Counsel also argued that the failure of the police to feed Mr. Ibrahim contributed to an overall air of oppression. I disagree. The evidence is that he was told that if he needed anything, including food or drink, all he had to do was to knock on the door. As noted above, at 9:16 p.m., he asked for something to drink, which was provided. Thus, he would have had no reason to think that, had he asked for something to eat, it would not have been provided. Indeed, when, once the statement was complete, he asked for something to eat, Browne indicated that he would arrange it, taking pains to inquire about Mr. Ibrahim’s dietary restrictions. If, before that time, he chose not to ask for anything to eat, the police cannot be faulted for that. I reject this argument.

67Counsel argued that when, at the outset of the video recorded statement, Mr. Ibrahim complained that he was cold and feeling sick to his stomach, the officers’ failure to do anything to remedy his discomfort contributed to an air of oppression.

68At the outset of the statement, after some introductory remarks, the following dialogue ensued:

Q. Okay, how are you feeling right now?

A. Cold.

Q. You’re cold. It is a little chilly in here. Ahm, are you--- Other than being a little chilly ah do you feel well. Do you understand everything that--- that I’m saying to you?

A. I--- I think I understand.

Q. Okay.

A. I---I---I feel sick to my stomach because---

Q. You feel sick in your stomach?

A. Yeah.

Q. Is there anything that I’ve said to you so far that you don‘t understand sir?

Nothing further was said by either the officers or Mr. Ibrahim about either the temperature or his feeling unwell.

69As for the temperature, having viewed the video, both Browne, who acknowledged that it was “a little chilly” and Mr. Ibrahim, who said he felt cold, appear to be reasonably comfortable. I note that he did not do any of the things that usually indicate that a person is cold, e.g.: shivering, rubbing his hands together or clasping his arms about his body. Further, he never mentioned being cold again. To my mind, even though it might not have been quite as warm as Mr. Ibrahim might have liked, this is not the sort of discomfort that would establish or, for that matter, even contribute to an air of oppression.

70As for Mr. Ibrahim’s statement that he felt sick to his stomach, in all the circumstances he may not have felt his best. That said, the officers had a serious matter to investigate and Mr. Ibrahim’s single assertion that he felt sick, without something more, was not enough, in my view, to oblige the officers to cease their questioning or to require them to take any special steps to accommodate Mr. Ibrahim. I note that he does not appear unwell on the video and, just as with his complaint that it was cold, he never mentioned felling unwell again.

71Counsel also argued that the fact that English was not Mr. Ibrahim’s first language contributed to the air of oppression. It is clear, counsel argues, that the accused did not understand everything that was being said. That said, Browne took pains to explain the process upon he was embarked to Mr. Ibrahim; he did so patiently and politely. The fact that Mr. Ibrahim may not have understood certain words did not contribute to an air of oppression. In each case, when it became apparent to Browne that Mr. Ibrahim did not understand something he had said, e.g.: when he told him that Mr. Bissonette had “succumbed to his injuries”, Browne then explained what he meant in simpler language.

72Counsel relied heavily on R. v. Wills, 2102 SKQB 244, in which a statement was held to be involuntary based on an air of oppression the officers had created. With respect, the police behaviour in Wills was so egregious, and so disparate from the facts before this court, that I find that it is of no utility as a comparator.

73In summary, then, I am satisfied that the officers did nothing that, fairly and objectively viewed, could be considered to be intimidating or coercive, so as to create, or even contribute to, an air of oppression. Indeed, I am fully satisfied that, at all times, all officers who had contact with Mr. Ibrahim treated him as courteously and respectfully as was feasible in the circumstances. I am satisfied beyond any reasonable doubt that nothing they did, or failed to do, as the case may be, either on its own or together with any other factor came anywhere close to creating an air of oppression as that term is understood in the cases.

RESULT

74In the result, being satisfied beyond a reasonable doubt that the statement was in all senses voluntary, I ruled it to be admissible.

APPLICATION #2: ALLEGED CHARTER BREACHES

POSITION OF THE ACCUSED

75Counsel for Mr. Ibrahim alleges two Charter breaches.

76First, inasmuch as, although Mr. Ibrahim was arrested at 6:08 p.m. and advised of his right to counsel, he did not get to exercise that right until 9:18 p.m., Mr. Thorning contends that there was a breach of the implementational component of s. 10(b) of the Charter.

77Second, Mr. Thorning alleges that, by arranging to have Mr. Ibrahim speak to duty counsel after he had told them that he wanted to speak to a particular private lawyer, the police effectively deprived him of his right to consult counsel of his choice.

POSITION OF THE CROWN

78For its part, the Crown acknowledges that the police failed to provide Mr. Ibrahim with an opportunity to consult counsel immediately, as they were required to do, and, further, that this constituted a breach of his s. 10(b) right. Insofar, however, as the police did not take the impugned statement until after Mr. Ibrahim had spoken to counsel, not once but twice, the Crown argues that there was a fresh start, such that the evidence was not gathered in a manner that would tend to put the administration of justice into disrepute.

79As for the suggestion that the police breached Mr. Ibrahim’s right by denying him his counsel of choice, the Crown argues that, by accepting the offer of speaking to duty counsel, Mr. Ibrahim exercised his right to counsel, such that there was no breach of s. 10(b).

DISCUSSION

Implementational Breach

80Although the parties agree there was a breach of the implementational aspect of Mr. Ibrahim’s right to counsel, there is dispute as to how long that breach was extant. The defence contends that it exceeded three hours; the Crown contends it was less than two. This, in turn, has implications for the seriousness of the breach.

Contacting duty counsel from the police car

81Mr. Ibrahim had a cell phone on his person at the time he was arrested. Mr. Thorning argued that, since Mr. Ibrahim had the right upon detention to be put in immediate touch with counsel (R. v. Suberu, 2009 SCC 33), Smith ought to have allowed him to telephone duty counsel from the police car, using his own telephone. Since the officer had acknowledged in cross-examination that he had previously encountered Mr. Ibrahim in connection with a motor vehicle accident, Mr. Thorning asserts, he had no reason to be fearful of him and, thus, no reason not to have removed the restraints so that Mr. Ibrahim could call counsel. I disagree.

82Although not as serious as the offence with which he was soon to be charged, Mr. Ibrahim was, nevertheless, in custody on a serious criminal charge and, according to normal police protocol, was handcuffed. To afford him the opportunity to make a phone call would have meant removing those restraints. Just because Smith had dealt with Mr. Ibrahim on an earlier occasion, when he was not under arrest, it does not follow that, in the circumstances in which he found himself on May 14, 2012, Smith could safely assume that the restraints were not required. In my view, since Smith was not accompanied by another officer, it would have been imprudent to remove the restraints and I do not fault him for not doing so.

83In his evidence before this court, Smith noted a further problem with the suggestion that he could have allowed Mr. Ibrahim to contact counsel from the police car, namely, that, because he was transporting a prisoner, the onboard camera in his police car was operating, such that he could not have afforded Mr. Ibrahim privacy.

84In cross-examination, Mr. Thorning suggested that Smith could have turned the camera off, thereby allowing for privacy. Smith rejected this suggestion, indicating that it would have been contrary to TPS regulations for him to do so.

Foregoing the formal booking process to facilitate contact with counsel

85In the alternative, Mr. Thorning argued that, if it was not feasible to permit Mr. Ibrahim to make a phone call from the police car, then, to avoid the wait while other prisoners were booked into the station, Smith should have taken him into the station without formally booking him in, so he could exercise his right to counsel. With respect, the suggestion is untenable. The requirement that arrested persons be formally booked into a police station has existed as long as there has been organized policing. While not the only purpose, one of the principal raisons d’etre of this process is for the protection and wellbeing of the prisoner. As important as the opportunity to consult counsel is, it would have been highly improper, in my view, for Smith to ignore his duty to book Mr. Ibrahim into the station simply to hasten his contact with counsel. That is particularly so where no effort was made to gather evidence from Mr. Ibrahim until after he had been afforded his right to counsel: R. v. Nelson, 2010 ABCA 349, 2010 ABCA 1329, 265 C.C.C. (3d) 273.

The ongoing breach once at the station

86In R. v. Taylor, [2014] 2 S.C.R. 495, 2014 SCC 50, Abella J., speaking for the court, held, at para. 24:

The duty to inform a detained person of his or her right to counsel arises “immediately” upon arrest or detention (Suberu, at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee's request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000), 2000 ABCA 301, 271 A.R. 368, at para. 12 (C.A.)). Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.

87Having rejected the aforementioned arguments, I conclude that the delay in giving Mr. Ibrahim his right to counsel until after the booking had been completed was reasonable. The clock should, therefore, start to run from that point, to wit: 7:22 p.m.

88There appears to have been some failure to communicate effectively between the booking sergeant and P/C Smith. Sgt. Steeves thought that Smith was going to facilitate contact with duty counsel as soon as he had lodged him in the CIB. For his part, however, Smith failed to appreciate that by saying to Mr. Ibrahim that he would have reasonable access to the telephone, Steeves was implicitly directing him (Smith) to facilitate contact with duty counsel. In the result, Smith did nothing until he ordered to do so by Whittemore at 9:12 p.m. That said, the time between when Smith left a message and when duty counsel called back, at 9:18 pm., albeit it was only six minutes, ought not to be attributed to the police. Therefore I conclude that the total time of the continuing breach was one hour and 50 minutes. While this is unfortunate, and certainly not to be condoned, the fact remains that the authorities made no effort to gather any information from Mr. Ibrahim until after he had twice spoken to duty counsel.

89Albeit Mr. Ibrahim had spoken to counsel before the impugned statement was taken, counsel argued that the earlier breach tainted the statement.

90As Watt J.A. made clear in R. v. Manchulenko, 2013 ONCA 543, at para. 67:

[67] Sometimes, something of evidentiary value, considered alone, does not appear to fall foul of any admissibility rule. Nevertheless, the evidence, for example a confession of crime, may be sufficiently connected to an earlier involuntary (hence inadmissible) confession that it is considered involuntary by this association: R. v. T. (S.G.), [2010] 1 S.C.R. 688, [2010] S.C.J. No. 20, 2010 SCC 20, at para. 28. The derived confessions rule excludes statements which, despite not being involuntary when considered alone, are sufficiently connected to an earlier involuntary confession to be rendered involuntary and hence inadmissible: T. (S.G.), at para. 28. Each subsequent confession may be involuntary if the tainting features that disqualified the first continued to be present, or if the fact the first statement was made, was a substantial factor contributing to the making of the second or subsequent statement: T. (S.G.), at para. 29; R. v. I. (L.R.) and T. (E.), 1993 CanLII 51 (SCC), [1993] 4 S.C.R. 504, [1993] S.C.J. No. 132, at p. 526 S.C.R. Where the earlier contaminant is a Charter breach, s. 24(2) provides its own formula for exclusion: I. (L.R.) and T. (E.), at p. 532 S.C.R.

91In the next several paragraphs of Manchulenko, however, Watt J.A. went on to point out that the taint of a Charter breach can be overcome:

[68] In some circumstances, conduct by investigators prior to a second statement may sever the link between the original taint and the subsequent statement. In other words, investigators may attempt a "fresh start" in order to insulate the second statement from the taint that rendered the earlier statement inadmissible: R. v. Wittwer, [2008] 2 S.C.R. 235, [2008] S.C.J. No. 33, 2008 SCC 33, at paras. 2-3. Where the antecedent taint is a Charter infringement, a fresh start may clearly sever the subsequent statement from the earlier Charter breach: R. v. Simon, [2008] O.J. No. 3072, 2008 ONCA 578, 269 O.A.C 259, at para. 69; Wittwer, at para. 3. Ultimately, the sufficiency of the connection between the Charter breach and the subsequent collection of the evidence requires a case-specific factual inquiry to determine whether the post-breach acquired evidence was "obtained in a manner that infringed or denied" any enumerated Charter right of the person charged: Simon, at para. 69.

[69] Where the evidence tendered for admission is a subsequent statement to persons in authority, a consultation with [page736] counsel may have the effect of severing the subsequent statement from an earlier breach of the right to counsel. But no bright line rule automatically immunizes the subsequent statement from the prior Charter breach. The effect of the later consultation on a determination of whether the subsequent statement was "obtained in a manner" that infringed an accused's right to counsel requires and falls to be decided on the basis of a fact-specific inquiry: R. v. Plaha, 2004 CanLII 21043 (ON CA), [2004] O.J. No. 3484, 188 C.C.C. (3d) 289 (C.A.), at para. 47; I. (L.R.) and T. (E.), at p. 532 S.C.R.

[73] As a general rule a temporal connection between the Charter breach and the acquisition of evidence will suffice to make out the nexus under s. 24(2). But the temporal connection involves more than simply counting up the time that has elapsed between the two events. What happened between the breach and the evidence collection can colour the significance of the passage of time: Plaha,³ at para. 49.

92In most “fresh start” cases, the issue is whether a subsequent statement is tainted by a Charter breach in relation to an earlier statement and the test is whether the tainting effect of the earlier statement on the subsequent statement has been “dispelled by appropriate language”: R. v. D.R., 1994 CanLII 131 (SCC), [1994] 1 S.C.R. 881. In this case, Mr. Ibrahim only gave one statement. Moreover, before giving that statement:

(i) although it happened one hour and 50 minutes later than it should have, he was given the opportunity to exercise his s. 10(b) right by the same officer who had originally denied him that opportunity;

(ii) he exercised his right, speaking to duty counsel for eight minutes;

(iii) he was later re-arrested by a different officer on a different charge;

(iv) he was given his right to counsel again, in relation to the new charge;

(v) he was given an opportunity to exercise that right in relation to the new charge; and

(vi) he exercised that right, for two approximately minutes, before speaking to the officers.

In light of those factors, I am of the view in this case, that the officers “severed the link” from the earlier Charter breach and, by their efforts, effected a fresh start.

Language barrier compromised the accused’s right to counsel

93Counsel also argued that, inasmuch as English is not Mr. Ibrahim’s first language, the language barrier interfered with the accused’s exercise of his right to counsel. In particular, Mr. Thorning pointed to certain passages in Mr. Ibrahim’s statement in which it is apparent that he had some difficulty understanding what D/Sgt. Browne was saying. I acknowledge that there are a few instances where it is apparent that he did not understand Browne, e.g.: where Browne told him that Mr. Bissonette had “succumbed to his injuries”. That said, the officer made an effort in each case to ensure that the applicant did understand.

94Albeit Mr. Ibrahim is not a native speaker of English, he has lived in this country for many years and has driven taxi for nearly two decades, during the course of which employment he speaks English every day. It is clear from what he said in the police car, the booking hall and the impugned statement itself that he understands English well.

95It is also noteworthy that, although an interpreter was provided for Mr. Ibrahim in this trial, he agreed that he would listen to these proceedings in English and only resort to the assistance of the interpreter when necessary. I note, further, that during these proceedings Mr. Ibrahim seldom relied on the services of the interpreter.

96In summary, it is clear that Mr. Ibrahim has a reasonably good command of English that was more than sufficient for him to understand what was being said to him in terms of his constitutional rights. This argument is, then, without merit.

Duty to hold off questioning

97Faced with an expressed desire by a detainee to retain and instruct counsel, “[u]ntil the requested access to counsel is provided, it is uncontroversial that there is an obligation on the police to refrain from taking further investigative steps to elicit evidence: R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3, at p. 12; R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, at p. 269”: Taylor, para. 26.

98In this case, there is no question that the police held off until after Mr. Ibrahim had consulted with duty counsel, not once but twice. Albeit he was not under arrest for murder at the time he first spoke to duty counsel, nonetheless Mr. Ibrahim knew from what Steeves had told him that a charge of murder was a distinct possibility.

Police overriding accused’s wish to speak to counsel of choice

99Mr. Thorning’s main complaint was that the homicide officers violated Mr. Ibrahim’s right to counsel by failing to respect his request to speak to a particular lawyer, namely, Mr. Fox. Indeed, Mr. Thorning went so far as to assert that “Ibrahim was only content to speak to Duty Counsel when the charge was dangerous operation causing bodily harm.”⁴ Since Mr. Ibrahim did not testify on this voir dire and since he spoke to duty counsel at a time when he knew he was charged with murder, I reject this submission as being without foundation in the evidence.

100Mr. Thorning argued that the initial delay in affording Mr. Ibrahim the opportunity to speak to duty counsel “could very well have effectively frustrated the exercise of the Applicant’s right to counsel of choice.”⁵ That is so, counsel argues, because “[i]t stands to reason that as it got later into the evening, the chance of connecting Ibrahim to counsel of his own choosing were [sic] reduced.”⁶ There are two problems with this logic.

101First, there is no connection on this record between either the delay before Mr. Ibrahim was able to speak to duty counsel or anything that transpired when he did finally speak to duty counsel the first time, on the one hand, and his desire, as later expressed, to speak to Mr. Fox, on the other hand. Rather, the evidence makes plain that the impetus to contact Mr. Fox came from Mr. Ibrahim’s contact with his wife and not from speaking with duty counsel. He did not speak to his wife until after midnight. The delay between the time of his arrest and the time he spoke to his wife was not the fault of the police and cannot have had any impact on the timing of his decision to call Mr. Fox.

102Second, there is no evidence before the court concerning where Mr. Fox was or what he was doing on the evening of May 14 or the morning of May 15 and, by extension, no foundation from which to conclude that had Mr. Fox been called earlier, he would have responded.

103In summary on this point, then, Mr. Ibrahim has failed to demonstrate that Mr. Fox’s failure to respond to the messages left for him was a function of the time that the messages left for him. It is, of course, Mr. Ibrahim’s burden of proof on this application.

104Counsel places particular emphasis on the fact that there was no particular urgency to the investigation that necessitated the police having to take a statement from Mr. Ibrahim when they did. Rather, he asserts, they easily could have and, indeed, should have waited longer before seeking to take a statement from him. Mr. Thorning relies for this argument on R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138. In that case, the court held that the appellant’s s. 10(b) rights had been violated when she called counsel of choice, but, finding the line to be busy, hung up and then gave a statement. With respect, Mr. Thorning’s reliance is misplaced. Ms. Black was emotionally distraught and under the influence of alcohol. Neither of those factors are present here. Further, unlike Black, this is not a case where the police simply forged ahead to take a statement where Mr. Ibrahim had not had the benefit of speaking with counsel. Rather, they did not embark upon taking a statement until after he had spoken to counsel, albeit not the one he wanted to consult.

105Mr. Thorning’s argument in this behalf also ignores what was said by Lamer C.J. on behalf of the majority in R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190, at para.25:

25 As I noted above, in Ross, supra, this Court held that detained persons have a right to retain the counsel of their choice, and it is only if the lawyer chosen is not available within a reasonable time that the detainee should be expected to exercise the right by calling another lawyer. It may appear to some, as it does to me, that the additional duty imposed on the police combined with the increasing presence of duty counsel services, irrespective of a means test, may well have an effect on the consideration of what constitutes "reasonable diligence" of a detainee in pursuing the right to counsel. The purposive approach which leads us to the conclusion that a detainee has the right to be informed of the availability of Legal Aid and of duty counsel also raises questions as to how long the police must wait for counsel of the detainee's choice to become available. Indeed, if the purpose of s. 10(b) is to assist initially persons upon their being detained as regards their rights and as regards their exercise thereof, we might well have to put time limits, not on access to counsel, but on access to counsel of one's choice. It may be that it is unreasonable not to seek the advice of available counsel when the only one available is either duty counsel or a Legal Aid lawyer. We must not, as a Court, lose sight of the realities of crime investigation and the functioning of modern police forces of varying sizes, with shifts, labour agreements and limitations put on overtime for financial considerations of course, but also, if not more important because police officers have a right to a personal and family life. Waiting for eight to ten hours for counsel of the detainee's choice to become available may not be justified in a purposive approach when duty counsel has been available all along. But this issue and these considerations were not before the Court, and were not addressed in this Court nor in the courts below. The Court has not had the benefit of the views of the police, government or the bars as to what would constitute "reasonable diligence" in the exercise of the right to counsel in the light of the additional burden, and of the specific availability of duty counsel. As such, it is not wise for this Court to make pronouncements on that issue. It is sufficient to note that, as a corollary to the obligation imposed on the police to inform detainees of the existence and availability of duty counsel services and Legal Aid [page217] plans, there may have to be an adjustment to the meaning of "reasonable diligence". (Emphasis added.)

106Mr. Thorning also relied heavily on R. v. Kumarasamy, [2002] O. J. No. 303 (S.C.J.), at para. 21, where Durno J. held:

What the cases do not establish is that police officers can go directly to duty counsel when a detainee wants to contact his or her counsel of choice. With respect, I disagree with the trial judge's conclusion that the police are not obliged to contact counsel of choice where the detainee has spoken to duty counsel. The availability of duty counsel 24 hours a day cannot be used to trump a detainee's right to counsel of choice.

Again, Mr. Thorning’s reliance is misplaced. In Kumarasamy, the police made no effort to contact the detainee’s counsel of choice and simply contacted duty counsel straightaway. In this case, on the other hand, the officers did not “go directly to duty counsel”, but, rather, tried diligently to contact Mr. Ibrahim’s lawyer of choice. They left several messages and waited more than two hours, but Mr. Fox did not return their calls. Only then did they resort to calling duty counsel. Indeed, contrary to counsel’s position, in the preceding paragraph of Kumarasamy, relying on R. v. Littleford, 2001 CanLII 8559 (ON CA), [2001] O.J. No. 2437 (C.A.), Durno J. held that “there is no breach of s. 10(b) of the Charter if the detainee speaks to duty counsel after asking to speak to their own counsel, where the police first attempt to contact private counsel and are unable to do so.”

107Mr. Thorning argued that “the police subverted his right to counsel of choice by calling Duty Counsel over Ibrahim’s explicit instruction that he did not want to speak to Duty Counsel.”⁷ There are two problems with this argument.

108First, contrary to counsel’s assertion, Mr. Ibrahim did not give an “explicit instruction” that he did not wish to speak to duty counsel. Rather, Whittemore testified, and I find as a fact, that, when he asked Mr. Ibrahim if he wanted to speak to a lawyer, he replied that he did not want to speak to anybody. To my mind, while it may suggest a certain despondency on his part at that point in time, that was not an explicit instruction not to contact duty counsel.

109Second, even had Mr. Ibrahim given Whittemore a specific instruction not to contact duty counsel, for Whittemore to ignore the instruction and contact duty counsel would not have constituted a subversion of the accused’s right to counsel of choice. Just as an arrestee’s indication that he does not wish to answer questions does not prevent police from continuing to question him (R. v. Roy, 2003 CanLII 4272 (ON CA), [2003] O.J. No. 4252, (Ont. C.A.)), in the same way, it seems to me, provided the police do not act in a way that is coercive, the fact that they call duty counsel over the objection of the accused does not subvert an accused’s right to counsel of choice. That is so because, even if an accused is presented with the phone and told that duty counsel is on the other end of the line, he still retains the autonomy to choose whether to speak to duty counsel or not. In this regard, see Littleford, where the officer testified that the appellant had told him that he did not wish to speak to duty counsel. Notwithstanding the officer phoned duty counsel over the appellant’s objection, since the appellant took the phone when it was handed him to him and spoke to duty counsel, the court found no breach of s. 10(b).

110Mr. Thorning also asserts that, because Mr. Ibrahim was diligent, but unsuccessful, in trying to reach Mr. Fox, and because he subsequently indicated that he did not want to consult duty counsel again, the detectives were obliged to give him what has come to be known as "Prosper warning"⁸, to the effect that he was entitled to wait a reasonable period of time for counsel to call back. Even had Mr. Ibrahim said, as counsel contends, that he did not want to speak to duty counsel again (which have found as a fact was not what he said), in my view a Prosper warning was not required. I say that for the following reasons.

111First, the warning is only required when a detainee, who has been diligent, but unsuccessful, in his attempts to contact private counsel, wants to proceed without the benefit of having consulted counsel: Prosper, para. 32.

112Second, the police made what I find as a fact were diligent efforts to contact Mr. Ibrahim’s counsel of choice. As I have said, they waited several hours between first trying to contact counsel and deciding to ask Mr. Ibrahim if he wanted to speak to duty counsel a second time. Given that it was the middle of the night, so to speak, it was unlikely that Mr. Fox would have called back in the near future. In my opinion, in all the circumstances they had already waited a reasonable period of time. Moreover, it is not as if they simply pressed on and took a statement without giving Mr. Ibrahim the opportunity to consult counsel. Rather, they offered him the opportunity to consult with duty counsel and, although he was not obliged to do so, he took them up on their offer.

113Third, in R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, the Court found that the appellant exercised his right to counsel by choosing to speak with a legal aid lawyer. After referring to Prosper, McLachlin C.J. and Charron J., on behalf of the majority wrote, at para. 39:

The circumstances of this case are not analogous. The concerns animating the provision of a Prosper warning do not arise when a detainee is unsuccessful in contacting a specific lawyer and simply opts to speak with another. In no way did Mr. Willier attempt to relinquish his right to counsel and thus any opportunity to mitigate his legal disadvantage. He made no attempt to waive his s. 10(b) right. Instead, unsuccessful in contacting Mr. Royal, he exercised his right to counsel by opting to speak with Legal Aid. As such, the police were under no obligation to provide him with a Prosper warning, and its absence fails to establish a Charter breach.

114At para. 43 of Willier, the majority specifically held that the accused's decision to contact duty counsel had not been the result of coercion:

Considering the circumstances of this case as a whole, the majority of the Court of Appeal correctly found that Mr. Willier did not suffer a violation of his s. 10(b) right to counsel. In no way did the police interfere with Mr. Willier's right to a reasonable opportunity to consult with counsel of choice by simply reminding him of the immediate availability of free Legal Aid after his unsuccessful attempt to call Mr. Royal. When Mr. Willier stated his preference to wait, Cst. Lahaie reasonably informed him that it was unlikely that Mr. Royal would be quick to return his call given that it was a Sunday, and reminded him of the immediate availability of duty counsel. Mr. Willier was not told that he could not wait to hear back from Mr. Royal, or that Legal Aid was his only recourse. There is no indication that his choice to call duty counsel was the product of coercion. The police had an informational duty to ensure that Mr. Willier was aware of the availability of Legal Aid, and compliance with that duty did not interfere with his right to a reasonable opportunity to contact counsel of choice. Mr. Willier was properly presented with another route by which to obtain legal advice, an option he voluntarily chose to exercise.

115Those same conditions are present in this case. Whittemore testified that he entered the room in which Mr. Ibrahim was being held at 1:05 a.m. and told him that he had, to that point, gotten no response from Mr. Fox. When he asked him if he wanted to speak to either of the other persons whose names were on the paper his wife had given to Browne, Mr. Ibrahim said he did not want to speak to anyone at that time. Rather, he would wait to speak to Mr. Fox at court in the morning. Whittemore then told Mr. Ibrahim that it was his custom, when conducting investigations of this sort, to have an arrested person speak to a lawyer before interviewing him. In response, Mr. Ibrahim did not criticize that approach and, more specifically, did not tell him not to call duty counsel. Whittemore said nothing to in any way denigrate Mr. Fox, and did not tell Mr. Ibrahim that he could not wait to speak to Fox or that he had to speak to duty counsel.

116The officers then waited a further half hour, or thereabouts, after this conversation before placing a further call to duty counsel. At 2:30 a.m., Whittemore called and, at 2:38 a.m., duty counsel called back. After speaking briefly with counsel, at 2:41 a.m., Whittemore opened the door to interview room and handed the phone to Mr. Ibrahim. Mr. Ibrahim took the phone, without protest, and spoke to duty counsel for about two minutes. Nobody forced him to take the phone and nobody forced him to speak. I find as a fact that he did so of his own free will.

117This is not a case like R. v. Vernon, 2015 ONSC 3943, [2015] O.J. No. 4157 (S.C.J.), where the appellant testified at trial that he felt he had no choice but to speak to duty counsel. Mr. Ibrahim chose not to testify on this voir dire. While that was certainly his right, his failure to testify leaves the court with no direct evidence as to how he felt and the circumstantial evidence does not come close to persuading me that he felt that he had no other option but to consult with duty counsel.

118In Littleford, at paras. 7 and 8, the court held:

[7] The appellant argues that his s. 10(b) rights were violated because he expressed the wish to speak to his own lawyer, and was not given a reasonable opportunity to do so. The basis for this submission is his assertion that after a perfunctory attempt was made by the officer to reach that lawyer, the officer immediately contacted and put the appellant in touch with duty counsel, contrary to his wishes and therefore contrary to his rights.

[8] On a Charter motion, the onus is on the accused person to prove a breach of his or her Charter rights on a balance of probabilities. The difficulty with the appellant's position in this case is that he did speak to duty counsel before taking the breathalyzer test. He neither raised any concern at the time, nor did he testify on the voir dire to suggest that he misunderstood his rights at the time or that the conduct of the police officer affected his ability to assert those rights. The Trial Judge made a finding that speaking to duty counsel "seemed to satisfy him at the time." There is no basis on the record to disturb that finding.

119Defence counsel argued that I should be concerned because Mr. Ibrahim indicated that he was not sure whether the duty counsel to whom he spoke the second time was the same person he spoke to the first time. The mere fact that Mr. Ibrahim seemed to be unsure whether it was the same person does not, without more, raise a concern in my mind. It was not the same person and, thus, it seems to me, although he purported to be less than sure, his observation was simply a statement of the obvious. Whatever he may have thought about that, Mr. Ibrahim did not indicate to the officers any dissatisfaction with the advice he got from either duty counsel.

120Mr. Thorning also argued that the conversation with duty counsel was so short that there is reason to be concerned about the adequacy of the advice. Two points are apposite.

121First, “[i]t 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”: R. v. Sinclair, [2010] 2 S.C.R. 310, 2010 SCC 35, para. 57.

122Second, although the call was short, it must be remembered that the accused had already spoken to duty counsel for approximately eight minutes the previous evening at a time when, though not yet charged with murder, he knew that a murder charge was a distinct possibility.

123Third, there is no evidence before me as to why the conversation only lasted two minutes. Certainly there is nothing to suggest that the police in any way curtailed the length of the call. If the accused chose to end the call, which may well have been the case, surely he cannot now complain that he did not speak to counsel long enough to get adequate advice.

124Mr. Thorning also argued that the accused’s utterance to the effect that “[he] didn’t talk much” in the course of the call with duty counsel should raise concerns in the court’s mind concerning the quality of the advice. I disagree. Duty counsel had an understanding of the situation from Whittemore. To my mind, then, there would have been relatively little that Mr. Ibrahim could have added that would have assisted the lawyer to, in turn, advise him. Indeed, the less Mr. Ibrahim said, the more time there would have been for the lawyer to give him advice.

125As noted out in Willier, at para. 42, “unless a detainee indicates, diligently and reasonably, that the advice he/she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview.” That said, there is nothing before me to suggest that the accused did not receive competent and adequate advice based on the duration of the call.

126As I have already said, albeit the accused stated that he did not want to speak to anyone, the fact is that when the opportunity was presented to him to speak to duty counsel, he took it. I find as a fact that the police used no coercive tactics to compel him to speak to duty counsel, but, rather, that he did so of his own volition. Thus, there was no breach of s. 10(b).

Section 24(2) considerations

127Having found a breach of the implementational aspect of s. 10(b) of the Charter, in the event that I am wrong in holding that it was cured by a fresh start I propose to consider s. 24(2).

128In R. v. Grant, 2009 SCC 32, 2 S.C.R. 353, at para. 71, the court held:

When faced with an application for exclusion under s. 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: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.

(i) Seriousness of the Charter-infringing conduct

129At para. 74 of Grant, the court stated:

At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.

130Similarly, in R. v. Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 166 C.C.C. (3d) 14, [2002] O.J. No. 2476 (C.A.), at para. 41, Doherty J.A. characterized police conduct for purposes of s. 24(2) analysis in the following way:

Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights ... What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct. [Citations omitted.]

131I appreciate that, in dealing with statements “tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach”: R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, para. 35.

132It is, obviously, important that arrestees be given the opportunity to counsel immediately: R. v. Suberu, 2009 SCC 33.

133In his factum, Mr. Thorning argues that the failure to put the accused in touch with counsel at an earlier point was “purposive and intended to degrade the Applicant’s will to resist police questioning.” Two paragraphs later, he asserts that “[t]he conduct of the police was deliberate…⁹ This was never suggested to any of the officers who testified on the voir dire, however, and never asserted in oral argument. The evidence does not support this hypothesis.

134Rather, I find as a fact that Smith’s failure to take steps to put the accused in touch with duty counsel once he was booked into the station stemmed from his misunderstanding of what he had been told to do. In my opinion, Steeves ought to have been more direct in telling Smith what he expected him to do. Indeed, Steeves acknowledged as much in his evidence on this hearing. Equally, Smith should have shown more initiative and enquired of Steeves exactly what he expected of him in connection with ensuring that the accused was given the opportunity to exercise his s. 10(b) rights. That said, it is clear to me that the failure to put the accused in contact with duty counsel earlier was not wilful on anyone’s part. Nor was it reckless. Rather, it was inadvertent. Thus, while it is certainly a breach of an important Charter right, it falls, in my view, at the lower end of the spectrum or fault line. Given, further, that no officer sought to take advantage of the fact that Mr. Ibrahim had not been afforded the opportunity to which he was entitled, in my view this militates strongly in favour of inclusion of the statement.

(ii) Impact of the breach on the Charter-protected interests of the accused

135Since I reject Mr. Thorning’s argument that the mere passage of time had an impact on Mr. Ibrahim’s decision to make a statement and since, as I have said, no effort was made to take advantage of the breach, the impact on his Charter-protected interests was nil.

(iii) Society's interest in an adjudication on the merits

136Turning to the third consideration, in a matter as serious as this, to say that society has a very important interest in an adjudication of the case on its merits is simply to state the obvious.

137Another critical consideration at this stage is, of course, the extent to which the evidence the applicants seek to exclude is important to the Crown's case. Where the evidence is important, this favours inclusion: R. v. Mian, 2014 SCC 54, [2014] S.C.J. No. 54, at para. 88; R. v. Wright, 2013 ONCA 778, [2013] O.J. No. 5895, at para. 17. In this case, while the statement is certainly not vital to the Crown’s case, it is not unimportant.

(iv) Balancing the interests

138In R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641, at para. 121, relying on Grant, at para. 71, Watt J.A. held that “[c]ourts are to balance the assessments under each of [the above mentioned] lines of inquiry to determine whether, taking into account all the circumstances, admission of the evidence would bring the administration of justice into disrepute.”

139Weighing those three considerations, even if the breach was not entirely cured by the efforts of the officers to make a fresh start, given that no evidence was gathered as a consequence of the breach and given, further, the importance of an adjudication on the merits, I am not persuaded that admission of the statement would tend to bring the administration of justice into disrepute. I am firmly of the view that the statement should be admitted.

RESULT

140For the foregoing reasons, as earlier indicated, I dismissed the application.

R. A. Clark J.

Released: March 04, 2016

CITATION: R. v. Ibrahim, 2016 ONSC 485 COURT FILE NO.: 13-70000774 DATE: 2016-03-04

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ADIB IBRAHIM Defendant

REASONS FOR DECISION

R. A. CLARK J.

Footnotes

1. 1Counsel was identified in this hearing only as “Sherman”. I do not know whether that was a first name or a surname.
2. 2This counsel was identified in this hearing only as “Tiltins”. The only thing that turns on this, as I will explain infra, is that the second duty counsel was a different person than the one to whom Mr. Ibrahim first spoke.
3. 3R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont. C.A.).
4. 4Applicant’s Factum, para. 31.
5. 5Applicant’s Factum, para. 29.
6. 6Loc. Cit.
7. 7Loc. Cit., para 34.
8. 8R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236
9. 9Applicant’s Factum, para. 42 and 44.