R. v. W.L., 2016 ONSC 5141

COURT FILE NO.: CR-10-05122 DATE: 20160815 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – W.L., Defendant/Applicant

COUNSEL: Robert Scott, for the Crown Michael McLachlan, for the Defendant/Applicant

HEARD: June 27, 28, 29, 30, 2016

RULING ON VOIR DIRE

CHARNEY J.:

Introduction

[1] The applicant (W.L.) faces a retrial on charges of committing sexual assault between July 2000 and July 2006 contrary to s. 271(1) of the Criminal Code R.S.C. 1985, c. C-46, and sexual exploitation of a young person in a relationship of dependency between July 2000 and July 2003 contrary to s. 153(1)(a) of the Code. These offences are alleged to have commenced in 2000 when the complainant J.L., who was the applicant’s stepdaughter, was 15 years of age. The first trial ended in a mistrial (hung jury) in February 2015.

[2] The applicant brought two pre-trial motions that were heard on April 26 and 27, 2016. My decision in relation to those motions was released on May 19, 2016 (2016 ONSC 3341).

[3] The first was an application under s. 653.1 of the Code to permit the applicant to reopen a ruling on discreditable conduct evidence made by Stong J. on November 22, 2013, at the applicant’s previous trial. This ruling related to the introduction of a “sex tape” that is alleged to have the applicant’s voice giving off-camera instructions to the complainant, J.L., who is one of the participants on the tape. For the reasons given in my ruling the application to reopen Stong J.’s ruling was dismissed.

[4] The applicant was also charged with sexual assault and sexual interference in relation to a different minor, R.A. He was convicted of that charge by a jury on May 4, 2011. This conviction was overturned by the Court of Appeal on the basis that the Crown counsel’s cross-examination of the applicant on his post-arrest silence exceeded permissible limits, and the absence of a clear jury instruction on that issue was fatal to upholding the jury verdict (2015 ONCA 37).

[5] The present application also relates to the “sex tape”. The applicant is seeking to exclude from evidence the “voice identification” evidence of Detective Jennifer McCue, who testified that she could identify the applicant’s voice on the sex tape because she recognized his voice from the video-recorded interviews conducted by the police with the applicant in relation to the R.A. investigation. The Crown is not seeking to introduce any of the statements made by the applicant – what he said is irrelevant for the purposes of this proceeding. The Crown wants to rely on the interview only as the source of Detective McCue’s voice identification evidence.

[6] The applicant contends that the video-recorded statements made to the police on June 24, 2009 in the R.A. investigation were made in violation of his rights under s. 10(a) and (b) of the Charter. He takes the position that if the statements are found to be inadmissible as having been obtained in breach of his Charter rights they are also inadmissible for the purpose of voice identification; see: R. v. Omar, 2014 ONSC 7513 at para. 19.

[7] The first issue on the voir dire is whether the applicant was denied the right to counsel of choice. The second issue is whether the officers complied with s. 10(a) of the Charter (the right to be informed promptly of the reasons for arrest) by advising W.L. of the charges without explaining the essential elements of the offence or immediately identifying the alleged complainant. This issue is intertwined with the s. 10(b) right to counsel argument: the applicant argues that because he did not know that the offence involved a minor there was a “change in circumstances” when this was revealed, entitling him to a further consultation with counsel.

[8] The applicant has also raised the issue of voluntariness of his statements, although this argument appears to be premised on the Charter violations alleged in his first two arguments.

Prior Decisions

[9] Before setting out the facts relating to the present challenge, it is important to note that the issue of the admissibility of the June 24, 2009 statements was considered by Mulligan J. at the 2011 trial. Mulligan J. held that the statement did not violate the applicant’s Charter rights and that the Crown had met its burden of proving that the statements were voluntary. That decision is not binding on me because the jury verdict was overturned on appeal and a new trial was ordered (s. 653.1 of the Code applies only in the case of a mistrial). Accordingly, the applicant is asking that I come to a different conclusion than Mulligan J. on the same facts.

[10] As a preliminary issue the Crown argued that Mulligan J’s decision with respect to the admissibility of the June 24, 2009 statements has already been upheld by the Court of Appeal. When the applicant appealed his conviction he had multiple grounds of appeal, including the admissibility of the June 24, 2009 statements.

[11] The Court of Appeal summarized the relevant facts as follows (at paras. 7-10):

[7] On the same day that R.A. provided her video-taped statement, the appellant was formally arrested at his place of employment, advised of the precise charges he was facing and given his right to counsel. He was transported to a York Region police station and, again at the station, advised of the nature of the charges. What he was not told until later that evening was the identity of the complainant.

[8] On the evening of his arrest, the appellant was interviewed for two and one half hours by the officer in charge of the investigation. The interview was video-taped. It was an agreed statement of fact at trial that no police officer involved in the investigation threatened or coerced the appellant in any manner, or offered any promises or inducements to provide a statement.

[9] Prior to beginning the interview, the police attempted to telephone the appellant’s personal lawyer. Although a message was left on his answering service, there was no response. Accordingly, a call was placed to duty counsel. Duty counsel spoke with the appellant for about five minutes prior to the interview.

[10] As a matter of strategy, the officer-in-charge conducted the interview with the appellant in a manner that did not immediately identify R.A. as the complainant. Near the conclusion of the interview, the officer advised the appellant that it was his stepdaughter who was the complainant. The appellant acknowledged touching his stepdaughter on two or three occasion but denied that it was for a sexual purpose. He provided no further details of the touching or its purpose. The appellant specifically denied any acts of oral sex or sexual intercourse.

[12] In the first paragraph of the Court of Appeal’s decision the Court of Appeal states:

[The appellant] seeks to set aside his convictions and has argued multiple grounds of appeal. One ground of appeal has merit.

[13] As indicated above, the “one ground of appeal” with merit was the argument that the Crown’s cross-examination of the applicant on his post-arrest silence exceeded permissible limits.

[14] The Crown argued that I should infer from this statement that the other grounds of appeal did not have merit, and so the applicant’s argument that Mulligan J. erred in admitting the June 24, 2009 statements has already been considered and rejected by the Court of Appeal. Given that the Court of Appeal ordered a new trial, it is unlikely that they would have sent the matter back without some comment if they thought that any of the other grounds of appeal also had merit. That is certainly one possible interpretation of the Court of Appeal’s decision.

[15] The applicant argues that if the Court of Appeal intended to reject the other grounds of appeal it would have prefaced the second sentence with the word “Only”. As it stands, he argues, the Court of Appeal simply declined to deal with the other grounds because it was not necessary.

[16] I decided at the outset of this application that there was sufficient ambiguity in the Court of Appeal’s conclusion that “One ground of appeal has merit” that I would hear the application and consider whether I would come to a different conclusion than Mulligan J.

Background Facts

[17] In his reasons dated April 11, 2011, Mulligan J. began by reading the Joint Statement of Agreed Facts entered into the hearing. I will not repeat the entire joint statement here. The record before me is essentially the same as it was before Mulligan J. The key elements of those facts for the purposes of this voir dire are as follows:

(a) W.L. was arrested at his workplace in Toronto at 4:18 p.m. The arresting officers identified themselves and stated that he was under arrest for sexual assault, sexual interference and invitation to sexual touching. He was handcuffed and placed in an unmarked police car. Before being placed in the car he was read his rights and provided a secondary caution from memory. When he was placed in the car he was read his rights and caution verbatim from the officer’s notebook.

(b) Efforts were made to call W.L’S counsel of choice – his family law lawyer - at 6:00 p.m. after he arrived at the police station but the lawyer’s office was closed and the answering machine did not provide a forwarding or paging number.

(c) At 6:15 p.m. Detective Manzon placed a call to duty counsel entering the data in the automated system including the suspect’s name, the charges, and his call back information. Duty counsel called back and spoke to W.L. at 6:44 p.m. The call was finished before 6:54 p.m. For the purposes of my analysis I will adopt the Court of Appeal’s statement (at para. 9) that the call with duty counsel was about 5 minutes. W.L. was not rushed or interrupted by the officers. He indicated in his interview with the police that he was satisfied with and understood the legal advice that he received from duty counsel.

(d) After the call he was returned to his cell for dinner and then brought to the interview room around 8:30 p.m.

(e) As a matter of strategy, the officer in charge conducted the interview with the appellant in a manner that did not immediately identify R.A. as the complainant. Near the conclusion of the interview, the officer advised the appellant that it was his stepdaughter who was the complainant.

(f) The applicant expressed surprise at this revelation, stating “This is not where I thought this was going.” The officer then left the room to get W.L. a glass of water and W.L. remained in the room for over 20 minutes. When the officer returned with the water the interview continued, and the applicant requested a fresh opportunity to talk with his lawyer. The officer did not act on that request and continued the questioning. The applicant made certain comments that the Crown claims are admissions.

[18] There is no dispute that W.L. was advised that he was under arrest for sexual assault, sexual interference and invitation to sexual touching. The offences of sexual interference (s. 151 of the Code) and invitation to sexual touching (s. 152 of the Code) relate specifically to victims less than 16 years of age.

[19] The applicant’s position, and his position before Mulligan J., is that while he knew the charges were sexual in nature he was not told that the charges involved a minor, nor the name of the minor, until the revelation at the end of the interview. He argues that the identification of R.A. as the complainant represented a change in jeopardy entitling him to a further right to consult a lawyer.

The Ruling of Mulligan J.

[20] Before considering the applicant’s motion, I will review Mulligan J.’s analysis of these same issues. Mulligan J. dealt with two Charter issues. The first was W.L.’s right to counsel of choice; the second was W.L.’s further right to counsel during the police interview.

Counsel of Choice

[21] On the issue of counsel of choice, Mulligan J. relied on the Court of Appeal’s decision in R. v. Littleford, 2001 CanLII 8559 (ON CA), where the Court of Appeal stated (at para. 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.

[22] This analysis is consistent with the law reviewed by Ferguson J. in R. v. Blackett 2006 CanLII 25269 at paras. 10 – 25, which was also referenced by Mulligan J.

[23] Mulligan J.’s held:

In all the circumstance…the police made a good faith attempt to call counsel of choice. They then called duty counsel who spoke to W.L. He made no complaint about the advice he received at the outset of the interview and I am entitled to assume that duty counsel was competent and aware of the charges imparted by Detective Manzon and gave W.L. basic information about his right to be silent. M.L. further acknowledged his right to silence in the interview.

[24] Accordingly, Mulligan J. found that W.L.’s rights to counsel of choice had not been breached in this case.

Right to Further Consult Counsel

[25] The second issue dealt with by Mulligan J. was the issue of change in jeopardy. The applicant argues that the police strategy of not telling him the name of the complainant until near the end of the interview resulted in a change in circumstances and change in jeopardy that entitled him to further consultation with counsel during the course of the interview.

[26] Mulligan J. relied on the Supreme Court of Canada’s decision in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, where the court held (at para. 64):

…we take the settled view to the effect that the right to counsel is essentially a one-time matter with few recognized exceptions, and expand upon this existing jurisprudence by recognizing the right to a further consultation with counsel in any case where a change in circumstances makes this necessary to fulfil s. 10(b)’s purpose of providing the detainee with advice in the new or emergent situation.

[27] While noting that the categories were not closed, the Supreme Court set out three circumstances where the right to further consultation with counsel is triggered: i) new procedures involving the detainee such as participation in a line-up or submitting to a polygraph, ii) a change in jeopardy “if the investigation takes a new and more serious turn as events unfold”, and iii) if events indicate that a detainee who has waived his right to counsel did not understand his initial s. 10(b) advice.

[28] The second category of “change in jeopardy” was relied on in this case. The right to further consultation with counsel when there is a change in jeopardy was explained by the Supreme Court (at para. 51):

The detainee is advised upon detention of the reasons for the detention: s. 10(a). The s. 10(b) advice and opportunity to consult counsel follows this. The advice given will be tailored to the situation as the detainee and his lawyer then understand it. If the investigation takes a new and more serious turn as events unfold, that advice may no longer be adequate to the actual situation, or jeopardy, the detainee faces. In order to fulfill the purpose of s. 10(b), the detainee must be given a further opportunity to consult with counsel and obtain advice on the new situation.

[29] The Supreme Court specifically considered the police strategy of withholding relevant information from the accused until later in the interview, and held that this did not “automatically trigger” a right to further consultation. The court stated (at para. 60):

the cases thus far do not support the view that the common police tactic of gradually revealing (actual or fake) evidence to the detainee in order to demonstrate or exaggerate the strength of the case against him automatically triggers the right to a second consultation with a lawyer, giving rise to renewed s. 10(b) rights.

[30] Based on this case law Mulligan J. held that the right to further consultation with counsel was not triggered in this case and denied the application to exclude the statements as evidence. Mulligan J. stated:

W.L. was very well aware of his right to silence from the outset. He was reminded of this right at the outset of the interview after confirming he had spoken to counsel and was satisfied with the advice given. Applying the Sinclair principles to this case I am satisfied that no new procedures were introduced and W.L. had an operating mind, sufficient to understand his right to silence…On the issue of the gradual release of more information about the charge I am satisfied that was an acceptable tactic. The charges never changed and so the jeopardy remained the same…I especially take note of the series of questions posed to W.L. about R.A. before the pivotal question gave a clear indication of the direction of the interview.

Voluntariness

[31] Finally, Mulligan J. held that the Crown had met its onus to prove voluntariness beyond a reasonable doubt. This decision was based on the following factors:

(a) The joint statement of facts that conceded that no police officer assaulted, made any threat, offered any inducement or made any promise at any time prior to or during the interactions with W.L.

(b) There was no attempt to glean any information from W.L. prior to the police interview around 8:30 p.m. W.L. remained silent while being transported to the station. The interview, which was videotaped, was conducted after he spoke to duty counsel and he was reminded of his rights.

(c) The questions were measured in tone and W.L. was not rushed or peppered with questions. W.L. often paused before answering.

(d) After the pivotal question he was given a 20 minute break to reflect on what the officer had said. He had time to compose himself and reflect on any legal advice he was given.

(e) Although he asked to speak to his lawyer he acknowledged in cross-examination that “I knew I did not have to say anything to the police” and acknowledged that “I chose to speak to him.”

[32] In finding that the statement was voluntary Mulligan J. stated:

W.L. was treated courteously and with respect in his dealings with the police. There was no atmosphere of oppression and there was no trickery used which would shock the community. The technique of gradually introducing evidence into the interview is an acceptable police procedure.

Analysis

Is A Voir dire Required for Voice Identification Evidence?

[33] The Crown takes the position that I do not have to consider the admissibility of the June 24, 2009 statements because the Crown is not seeking to introduce any of the statements made by the applicant; what the applicant said is irrelevant for the purposes of this proceeding. The Crown wants to rely on the interview only as the source of Detective McCue’s voice identification evidence.

[34] The Crown relies on the decision of the Ontario Court of Justice in R. v. McGee, 2008 ONCJ 707, where Stone J. held that a voir dire was not required to determine the voluntariness of a statement if the statement itself is not being introduced as evidence. He decided that the Crown did not have to prove the voluntariness of the statement if what was said was not being tendered as a confession or admission, but only for the purpose of identifying the speaker’s voice in wiretaps.

[35] According to this analysis voice identification evidence should be treated no differently than visual identification. The voice is just another physical characteristic that the police may observe during the course of the investigation. See R. v. Chan (unreported, June 30, 1994, (Ont.Gen. Div.)) as quoted in R. v. Ng, 1996 CanLII 8156 (ON SC), at para. 36):

There is a distinction between causing an accused person to speak in order to facilitate his identification and in compelling an accused to speak in order to create evidence of a testimonial nature. In this case, Ms. Hollinger spoke with two accused at the preliminary enquiry to observe or hear their voices so as to identify physical characteristics and not to cause the accused persons to make incriminating statements. The accused’s right to silence, as guaranteed by s. 7, protects an accused from being forced or tricked into making inculpatory statements.

In my opinion, voice identification evidence is not testimonial in nature and is analogous to other forms of identification evidence such as evidence of a person’s physical appearance and fingerprints. The taking of this type of evidence without an accused’s consent or knowledge does not violate the accused’s right to silence under s. 7.

[36] Other cases have drawn a distinction between police conduct designed to trick persons in custody into speaking so as to afford evidence of voice identification, which would breach the right to silence, and situations where the voice identification is the by-product of the normal arrest procedure (see R. v. Lepage, 2008 BCCA 132, at paras. 24 – 36).

[37] In R. v. Ng Keenan J. held (at para. 15) that there was no obligation on the police to forewarn an accused that statements made could be used for the purpose of voice identification:

I do not agree that there was any obligation on the investigating authorities to forewarn an accused about voice identification... While the standard police caution informs the accused that there is no obligation to say anything in response to the charge, it is given together with an invitation to make a statement about the offence charged. It is intended to inform the accused that he has a choice... There is no obligation on the police to advise an accused person of a general right to remain silent in the sense of standing mute. The police have a right to question suspects and witnesses as part of their investigation. They are not obliged to explain the reasons for the questions or their significance in relation to the investigation.

[38] Keenan J. affirmed (at para. 37) that this presupposes that the accused was given the opportunity to exercise his s. 10(b) rights. These paragraphs were expressly adopted by the Newfoundland Court of Appeal in Meyers v. R., 2008 NLCA 13, at paras. 30 - 32.

[39] In the present case, the police did not conduct the interview for the purpose of obtaining voice identification evidence. The police were not aware of the existence of the J.L. sex tape when the R.A. investigation was conducted, and they could not know at the time of the June 24, 2009 interview that voice identification would become an issue in the J.L. case.

[40] The applicant relies on the decision of Molloy J. in R. v. Omar, 2014 ONSC 7513 which held that statements found to be inadmissible on Charter grounds could not be relied on for the purposes of voice identification. Following earlier decisions in R. v. Mac and Wong, [1997] O.J. No. 1379 (O.C.J.Gen.Div.) and R. v. Rendon, [1997] O.J. No. 5505 (O.C.J.Gen.Div.), Molloy J. concluded (at para. 19):

In this case, Ms Omar had asked to speak to counsel and had not been afforded an opportunity to do so. All of her statements to Officer Tamayo were obtained in breach of her s. 10(b) right to counsel. In my opinion, once the statements are found to be inadmissible as having been obtained in breach of Ms Omar’s constitutional rights, they are inadmissible for the purpose of voice identification as well. If the actual words she spoke cannot be used against her at trial, I can see no reasonable basis for concluding that the voice she used in uttering those words can be used to convict her. The officer should not have been speaking to her. If he had respected her constitutional rights, he would have no basis for comparing the voice of Kia to that of Ms Omar. His knowledge of the nature of her voice was obtained in breach of her rights.

[41] In my view Molloy J.’s statement in Omar is consistent with the majority of the jurisprudence in this area, and it is incumbent on the court to consider the admissibility of the statements even if they are being proffered exclusively for the purpose of voice identification and not for the content of the statements themselves.

Counsel of Choice

[42] The content of the s. 10(b) Charter right to counsel includes a number of component parts. They were summarized by the Supreme Court in R. v. Bartle (1994), 1994 CanLII 64 (SCC), 92 C.C.C. (3d) 289 at 301 (S.C.C.):

This court has said on numerous previous occasions that s. 10(b) of the Charter imposes the following duties on state authorities who arrest or detain a person:

1. To inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel;

2. If a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

3. To refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

[43] The Supreme Court described the first duty as “informational” and the second and third duties as “implementational”.

[44] The police complied immediately with the first informational duty in this case. The applicant complains that the police should have permitted him to use his cell phone to call his own lawyer as soon as he was arrested at 4:18 p.m., rather than making him wait until he got to the police station at 6:00 p.m., by which time his lawyer of choice had left the office.

[45] The police detectives testified that they did not permit the applicant to contact his own lawyer on his own cell phone either at the scene of the arrest or in the police cruiser because these were not private areas where the applicant could have a private conversation with counsel. The delay in this case was the result of the arrest being made at the applicant’s place of employment in Toronto and the requirement that he be transported to the police station in York Region, where he arrived at 5:32 p.m.

[46] In my view it was reasonable for the police to wait until they arrived at the police station to comply with the implementational duty to contact counsel. See: R. v. Devries, 2009 ONCA 477, at para. 30 "I do not think that the use of the word "now" in the context of the administration of the s. 10(b) caution at the roadside implies that the detainee can speak with a lawyer instantly upon the officer's completion of the s. 10(b) caution. Most police officers are not standing with a telephone in their outstretched hand as they complete the s. 10(b) caution." The applicant has a right to privacy when communicating with counsel and that could only be accomplished at the police station. The police did not make any effort to interview or elicit information from the applicant until after he had spoken to counsel.

[47] Once they arrived at the police station Officer Manzon used the applicant’s cell phone to locate the contact information for the applicant’s counsel of choice and dialled his number at 6:00 p.m. There was no answer, and the answering machine did not provide further contact information. Officer Manzon left a message that included his contact information, stated that W.L. was under arrest, and the offences for which he was charged. No return phone call was received before or during the applicant’s police interview. It was 8:30 a.m. the following day before Officer Manzon received a return phone call from a counsel who had been referred by W.L.’s lawyer.

[48] At 6:15 p.m. Officer Manzon placed a call to duty counsel entering the data in the automated system including the suspect’s name, the charges, and his call back information. Duty counsel called back and spoke to W.L. at 6:44 p.m. The call lasted approximately 5 minutes.

[49] Based on my review of the evidence and the law, I come to the same conclusion as Mulligan J. on the voir dire on this issue, that is, W.L.’s right to counsel of choice had not been breached in this case.

[50] I note that this analysis is consistent with the recent decision in R. v Ibrahim, 2016 ONSC 485 at para. 106, citing with approval Durno J. in R. v. Kumarasamy, [2002] O. J. No. 303 (S.C.J.) at para. 20: “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.” That is precisely what occurred in this case.

Right to Further Consult Counsel

[51] In addition to the transcripts of evidence taken on the voir dire held before Mulligan J. that were made exhibits in the voir dire before me, I have heard viva voce evidence on this application (Detectives Manzon and McCue) and I have viewed the videotaped interview of W.L. while in custody, as well as the transcript of that interview.

[52] The officers acknowledged that while they advised the applicant that he was under arrest for sexual assault, sexual interference and invitation to sexual touching, they did not explain to him that the latter two charges involved minors and they did not explain to him the essential elements of these offences. They also agreed that they deliberately withheld the identity of the complainant until near the end of the interview as an investigative strategy. This evidence is consistent with the evidence heard and considered by Mulligan J. when he heard the voir dire.

[53] Detective Manzon also testified that duty counsel was advised of the precise charges against W.L. Detective Manzon assumed, legitimately in my view, that duty counsel would be aware of the essential elements of the offences. I agree with Mulligan J.’s conclusion:

Here…duty counsel knew of the charges from Officer Manzon and would be well aware of the sexual-related charges involving a minor or minors. When the accused speaks to counsel there is a presumption that he has been informed of the right to remain silent.

[54] See also Sinclair, at para. 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.

[55] The applicant contends that for s. 10(a) or (b) to be meaningful the accused must know the essential elements of the offence with which he is charged as well as the potential penalty. Since he did not appreciate that the offences related to a minor, or know the identity of the complainant, he argues that the 10(a) caution was inadequate, and that his understanding of his jeopardy changed when this important information was finally revealed.

[56] In R. v. Smith, 1991 CanLII 91 (SCC), [1991] 1 SCR 714, the Supreme Court considered the parameters on the information that the police must provide in order to comply with the requirement that the accused “understand generally the jeopardy in which he or she finds himself”. The court rejected the requirement of “full information”, stating (at paras. 26 – 28):

These cases establish that, regardless of whether the focus is on the sufficiency of the initial s. 10(b) advice or on the waiver, what is required is that the accused understand generally the jeopardy in which he or she finds himself and appreciate the consequences of deciding for or against counsel. They rest on the common sense proposition that sometimes a lawyer is more important than at other times. Many might choose to do without counsel on a traffic charge. Many fewer would make the same decision if faced with murder.

It has never been suggested, however, that full information is required for a valid waiver. Indeed, if this were the case, waivers would seldom be valid, since the police typically do not know the whole story when the accused is arrested. Nor is the failure of the police to precisely identify the charge faced in the words of the Criminal Code necessarily fatal. In the initial stages of an investigation the police themselves may not know the precise offence with which the accused will be charged. Moreover, the words of the Code may be less helpful to a lay person than more common parlance in communicating the extent of jeopardy…

… To my mind, to establish a valid waiver of the right to counsel the trial judge must be satisfied that in all the circumstances revealed by the evidence the accused generally understood the sort of jeopardy he faced when he or she made the decision to dispense with counsel. The accused need not be aware of the precise charge faced. Nor need the accused be made aware of all the factual details of the case. What is required is that he or she be possessed of sufficient information to allow making an informed and appropriate decision as to whether to speak to a lawyer or not. The emphasis should be on the reality of the total situation as it impacts on the understanding of the accused, rather than on technical detail of what the accused may or may not have been told.

[57] In summarizing Smith and a number of subsequent cases, D.L. Corbett J. stated in R. v. Liard and Lasota, 2013 ONSC 5457 at para. 58:

Police are not required to provide full information to the accused upon arrest or detention in order for there to be sufficient information for an accused to understand his jeopardy. Likewise, it is not necessary for police to identify the precise charge that will be laid under the Criminal Code. The question is whether the accused generally understands the jeopardy that he faces.

[58] The police in this case used the precise title of the offences as they are set out in the Criminal Code (sexual assault, sexual interference and invitation to sexual touching). On my reading of the case law this is sufficient for the purpose of enabling the accused to “understand generally the jeopardy in which he finds himself”. See for example: R. v. Eakin, 2000 CanLII 2052 (ON CA), [2000] O.J. No. 1670, 132 O.A.C. 164 at para. 11: “Having been informed that he was under arrest for sexual assault, the appellant realized that he was arrested for a serious offence.”

[59] It is unrealistic to expect the police to explain the essential elements of an offence, and any effort by the police to do so could be more confusing than helpful. Indeed, such explanations would inevitably result in further Charter challenges if the explanation did not meet the exacting and exhaustive standards of instructions given to juries. The references to “sexual assault, sexual interference and invitation to sexual touching” provide sufficient information to a layperson to understand the general nature of the offence and “the sort of jeopardy” in which he finds himself.

[60] I also agree with Mulligan J’s conclusion that “The charges never changed and so the jeopardy remained the same.” There was no fundamental change in the purpose of the investigation, no unrelated or significantly more serious offence then that stated to the accused at the time of his first warning.

[61] In this regard the Crown relies on the decision in R. v. Williamson, 2011 ONSC 6584, in which the accused was told that he was under arrest for “historical sexual assault”. Like the present case, the officer did not provide the accused with details of the accusations until well into the interview. Like the present case, the accused argued that once the officer began to identify the complainant he should have been given a further right to counsel. In rejecting this argument Tranmer J. found that there was no change in jeopardy when the victim’s name was revealed. He stated (at paras. 149-150):

In my view, there was no such change in focus whatsoever involved in the police interview of Mr. Williamson and accordingly, no breach of section 10(a). At all times, Mr. Williamson’s jeopardy was an historical sexual assault.

I find that the stated reason for arrest fully complied with section 10(a) of the Charter. I find that it was not necessary for Detective Cahill to expand upon that reason, as is urged by defence counsel, for example, to identify the victim, the timing, the location, the nature of the activity, and so on.

[62] And again at para. 179 Tranmer J. found:

Mr. Williamson’s rights under s. 10(a) and (b) of the Charter were not breached. Detective Cahill fulfilled the legal duty to advise Mr. Williamson of the reasons for his arrest in stating, “for an historic sexual assault.” He did not breach either right in revealing details of the allegations later over the course of the videotaped interview rather than upon arrest. This procedure did not lead to a change in the jeopardy faced by Mr. Williamson.

[63] In my view these conclusions are consistent with para. 60 of the Supreme Court’s decision in Sinclair, which states:

[T]he cases thus far do not support the view that the common police tactic of gradually revealing (actual or fake) evidence to the detainee in order to demonstrate or exaggerate the strength of the case against him automatically triggers the right to a second consultation with a lawyer, giving rise to renewed s. 10(b) rights

[64] I also agree with Mulligan J’s view (echoed by Tranmer J. in Williamson) that there is nothing inappropriate about what the Supreme Court of Canada described in Sinclair (at para. 60) as the “common police tactic of gradually revealing (actual or fake) evidence to the detainee”. I note that even Binnie J. in dissent agreed (at para. 83) that this tactic was “absolutely acceptable” although he concluded that it did give rise to a right to further consultation.

[65] Indeed, the applicant’s position in this case is essentially the position adopted by Binnie J. in his dissent in Sinclair (at para. 83) that a “detainee’s belated appreciation …of his existing jeopardy as the interrogation develops in ways that were not – and could not be – anticipated at the outset during the initial consultation with counsel” should also give rise to a right to further consultation. If Binnie J’s decision had been the majority decision, the applicant would be correct in this case.

[66] Based on my review of the evidence and the law, I come to the same conclusion as Mulligan J. on the voir dire on this issue, that is that W.L. did not have a right to further consultation with counsel and the statements given did not violate his rights under s. 10 (a) and (b) of the Charter.

Voluntariness

[67] As I understand the applicant’s voluntariness argument, it is premised on the same facts that give rise to his allegations of Charter violations, and is based on the cases that indicate the relationship between Charter and the principle of voluntariness. For example, in R. v. Singh, 2007 SCC at paras. 35 – 40 the Supreme Court of Canada states that voluntariness requires the court to scrutinize whether the accused was denied his or her right to silence as defined in accordance with constitutional principles (see para. 37). See also R. v. McCrimmon, 2010 SCC 36 at para. 26. The Supreme Court has made it clear, however, that the Charter does not subsume the common law confessions rule: R. v. Oickle, [2000] 2 SCR 3, 2000 SCC 38 at paras. 30 – 31.

[68] The applicant has argued that the police investigation in this case was an example of what has been referred to as the “Reid Technique” of interrogation (see R. v. Barges [2005] O.J. No. 595 (Ont. Sup. Ct.) at paras. 51 -53 and 86 – 88). No evidence was presented to support this assertion (articles from the New Yorker magazine placed in the Book of Authorities, while interesting, are neither evidence nor authorities. See: Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 1999 CanLII 640 (SCC), [1999] 3 SCR 845 where Binnie J. refers to this practice as “bootlegging evidence in the guise of authorities”).

[69] No doubt this interview shared some of the characteristics of the so-called Reid Technique, in particular the common practice of gradually revealing evidence to the detainee. As indicated, neither the Supreme Court of Canada nor the Ontario Court of Appeal has suggested that this common practice is one that would shock the community.

[70] Again, based on my review of the evidence, and in particular the videotaped interview of W.L. while in custody, and for the reasons given by Mulligan J. in his decision on the voir dire, I come to the same conclusion that the Crown has proven the voluntariness of the statement beyond a reasonable doubt.

Conclusion

[71] As I find no breach of the Charter, a consideration of Charter s. 24(2) is unnecessary and the application to exclude the voice identification evidence is dismissed.

[72] Having come to this conclusion I am mindful of the Court of Appeal’s caveat in R. v. Dodd, 2015 ONCA 286 at para. 79:

Voice identification evidence is even more fraught with dangers than eyewitness identification evidence. It ought to be treated with extreme caution: R. v. Clouthier, 2012 ONCA 636, at para. 19.

[73] If the Crown decides to call this evidence, sufficient caution will have to be given to the jury in connection with it.

Justice R.E. Charney

Released: August 15, 2016

CITATION: R. v. W.L., 2016 ONSC 5141

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – W.L., Defendant/Applicant

ruling on voir dire

Justice R.E. Charney

Released: August 15, 2016