A NON-PUBLICATION ORDER IN THIS PROCEEDING HAS BEEN ISSUED UNDER THE CRIMINAL CODE OF CANADA, SECTION 648(1)
Court File and Parties
BARRIE COURT FILE NO.: CR-16-159 DATE: 20170707 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN Crown – and – TERRENCE BARRETT Respondent
COUNSEL: F. Temple and C. Peters, for the Crown A. Robbins and A. Kwan, for the Respondent
HEARD: June 22, 23, 28, 29, 30, 2017
RULING On admissibility of STATEMENTS OF THE ACCUSED
QUINLAN J.:
Overview
[1] Terrence Barrett is charged with second-degree murder of Milan Segota and aggravated assault of Aimee Novak arising from a physical altercation on February 15, 2015. After police interviewed witnesses in relation to the incident, police officers began to look for Mr. Barrett. Mr. Barrett was arrested the following morning. Immediately after his arrest, Mr. Barrett was transported by police to the emergency department at the Royal Victoria Regional Health Centre (RVRHC) due to concerns about his well-being. Mr. Barrett was released from the hospital that morning and taken to the Barrie Police station, where two video recorded statements were taken. Later in the afternoon Mr. Barrett was transported back to the hospital and admitted pursuant to a Form 1 under the Mental Health Act, R.S.O. 1990, c. M.7.
[2] Mr. Barrett made a number of utterances and gave several statements to police on the day of his arrest, both at the hospital and at the police station. The Crown seeks to admit utterances and statements made by Mr. Barrett to Police Constable (PC) Scales on arrest and at RVRHC, an audiotape of interactions with Mr. Barrett at RVRHC, and two videotaped statements taken at Barrie Police station, on the basis that they are voluntary and Charter-compliant.
[3] The defence position is that the Crown has failed to establish beyond a reasonable doubt that Mr. Barrett’s utterances and statements were made voluntarily. Mr. Barrett was not of operating mind given his medical and mental state and he was subjected to oppressive conditions. In the alternative, Mr. Barrett's right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms was infringed by the officers’ failure to inform Mr. Barrett of his right to counsel and the right to contact counsel of his choice, and by the officers’ failure to provide Mr. Barrett with an opportunity to exercise the right and hold off questioning until Mr. Barrett had the opportunity to do so. Pursuant to s. 24(2) of the Charter, the defence seeks the exclusion of all utterances and statements.
Evidence on the Application
[4] On the evening of February 15, 2015, police attended a rooming house located at 22 Ross Street in Barrie in regards to a stabbing. Upon arrival, officers observed the deceased, Milan Segota, lying by the front door with visible stab wounds to his chest. A female, Aimee Novak, was also present and had injuries to her arm.
[5] Police immediately began speaking to and interviewing witnesses in relation to the incident. It soon became apparent to the police that Mr. Barrett was part of the altercation. Officers were instructed to arrest Mr. Barrett for murder if and when they located him.
[6] At approximately 7:00 a.m., PC Scales observed Mr. Barrett walking down the street. PC Scales approached Mr. Barrett and said good morning. He asked him for his name, to which Mr. Barrett responded, "Terrence Barrett. I was on my way to turn myself in."
[7] PC Scales told Mr. Barrett that he was under arrest and had Mr. Barrett put his hands on the cruiser. Mr. Barrett was compliant. After he was handcuffed, PC Scales told Mr. Barrett that he was under arrest for murder. At that point, Mr. Barrett's demeanour changed. Mr. Barrett began to cry and shake vigorously. He went to dead weight and fell backwards to the ground; he was breathing fast and heavy.
[8] PC Watt arrived on scene. Both officers attended to Mr. Barrett and observed that he was very cold. They thought that Mr. Barrett was having a seizure or was possibly hypothermic. PC Scales spoke to Mr. Barrett when he was on the ground. Mr. Barrett appeared to respond and calmed down. Concerned for his health and well-being, the officers carried Mr. Barrett into the back of the police cruiser and called for an ambulance. PC Scales described Mr. Barrett’s reaction as “not … normal.”
[9] Once in the cruiser, Mr. Barrett stated that he needed his medication. PC Scales cancelled the request for an ambulance as he decided he could take him to the hospital rather than wait for an ambulance. At 7:10 a.m., before leaving for the hospital, PC Scales read Mr. Barrett the standard right to counsel and caution. Mr. Barrett did not respond; he continued to cry and sway back and forth. PC Scales testified that he believed that Mr. Barrett had heard him and chose not to respond.
[10] PC Scales did not ask Mr. Barrett anything or seek any information about what had happened. He was only concerned with getting medical attention for Mr. Barrett.
[11] On the way to RVRHC, PC Scales smelled an odour of alcohol on Mr. Barrett. He relayed to dispatch that Mr. Barrett was convulsing in the cruiser.
[12] At the RVRHC ambulance bay, Mr. Barrett began to make sounds that led PC Scales to believe that Mr. Barrett was going to vomit so he opened the door of the cruiser. At that point, Mr. Barrett said to PC Scales, "he threatened to kill me". Mr. Barrett then asked PC Scales if Aimee was okay. The officer responded, "I believe so". Mr. Barrett then asked PC Scales if "she" was in trouble, and PC Scales told Mr. Barrett, "I don't believe so, but I just started this morning".
[13] At 7:55 a.m. in the hospital emergency room, PC Watt heard Mr. Barrett say, "It fucking happened so fucking quick". Mr. Barrett repeatedly said, “Fuck”, and held his hands over his face. He also said, "My life's fucked”. At the time, police were standing by Mr. Barrett's room and the words appeared to be uttered to no one in particular.
[14] At 8:15 a.m., Detective Constable (DC) Howe attended the hospital with a portable audio recorder. She told Mr. Barrett that he would be recorded. Constables Scales and Watt and a nurse were present. Detective Constables Cuff and Way, two identification officers, had also arrived. Their purpose was to photograph Mr. Barrett and his injuries, deal with any short-lived evidence and seize his clothing. DC Cuff gave Mr. Barrett what he described as a “soft” secondary caution; he testified that it was not his intention to take a statement and it assists in establishing rapport. He told Mr. Barrett that he knew Mr. Barrett had spoken with other officers and been given his caution and right to counsel, and that “the same thing applie[d]” for DC Cuff: that Mr. Barrett did not have to say anything but if he did it could be taken down in writing and used as evidence against him. DC Cuff asked Mr. Barrett if he understood and Mr. Barrett shook his head up and down and confirmed that his response meant "yes". The officer took that to mean that Mr. Barrett heard him and understood the information that was provided. DC Cuff testified that, for various reasons, he had assumed that Mr. Barrett had been given his right to counsel and cautioned, but he had not confirmed this.
[15] DC Cuff directed Mr. Barrett to point out his injuries. He told Mr. Barrett that if he had any mark or injuries on him, he could show the officer but he also had to use words to tell him. DC Cuff testified that he was not making a "demand" of Mr. Barrett, but a request because Mr. Barrett had been very much non-verbal to that point. Mr. Barrett then began showing DC Cuff various injuries and marks on his body.
[16] At times during the photographing of his injuries, Mr. Barrett was crying or sobbing. He curled his toes and was squirming on the bed. DC Way described Mr. Barrett’s leg movements as "bicycling legs". At times, Mr. Barrett stated his head “just won’t stop.”
[17] Approximately 20 minutes after DC Howe began the audiotape, Mr. Barrett indicated that he wanted his medication. Shortly after, Mr. Barrett said he wanted to talk to his brother and his daughters. Almost 30 minutes in, Mr. Barrett again asked for his medication. DC Howe asked Mr. Barrett what medication he needed and said that she would relay that to the doctor. It appears from the audio transcript that DC Howe spoke to medical staff at that point. Mr. Barrett then indicated that he needed to “get a lawyer or something”. DC Way asked Mr. Barrett what lawyer he wanted to talk to and when Mr. Barrett indicated that he did not know, DC Howe told him he could speak to any lawyer of his choice or they could get in touch with duty counsel for him but that he needed to speak to a lawyer in private. Mr. Barrett then said he needed to talk to his counsellor at the CMHA (Canadian Mental Health Association).
[18] In the course of the officers’ collection of photographs and swabs, Mr. Barrett said that he was not a violent person. He asked if Aimee was okay. DC Cuff told him that he did not know who Aimee was and was sorry but he could not help him with that. When Mr. Barrett again requested his medications, DC Howe told Mr. Barrett that he would have to wait for the doctor.
[19] Approximately 45 minutes in, Mr. Barrett stated that he wanted to talk to his brother and his counsellor and needed to talk to a lawyer. DC Howe asked Mr. Barrett if he wanted to speak to duty counsel and he replied in the affirmative. She said, “Okay, a lawyer” and Mr. Barrett said, “Yeah”. Police were waiting for the doctor to see Mr. Barrett at that point. DC Howe reiterated the need to consult with counsel in private and said that if necessary, she could organize the phone call at the hospital. Following a discussion about where contact with counsel would take place and whether contact might be made at the hospital, DC Howe told Mr. Barrett, "If it's gonna be quick then you can speak to duty counsel on the telephone at the police station". Mr. Barrett stated, "I want to talk to somebody face-to-face". The officer confirmed that it would not be face-to-face but over the telephone. Mr. Barrett responded, "I need to talk to somebody". He later stated he wanted to talk to a lawyer. After a discussion about the difficulty of arranging a private conversation at the hospital, Mr. Barrett agreed to wait to see how long it would take to see the doctor and then decide if he would wait to speak to a lawyer when they returned to the police station. After that discussion, Mr. Barrett again requested his medication and said that his mind was not functioning properly and that he could not think. Medical staff spoke to him about his medications and his pharmacy. A doctor attended and prescribed Valium. Towards the end of the audiotaped interactions, Mr. Barrett asked if he was going to court that day or to Penetang (the location of the detention centre). DC Howe told Mr. Barrett that the investigation was ongoing and that they would get him back to the police station to speak to a lawyer. When he had been examined by nurses earlier, Mr. Barrett had stated that he had been drinking and that he drinks every day. However, medical staff told Mr. Barrett that they did not see anything in his system. They gave him 10 mg of Valium to help with the “DTs” [Delirium Tremens].
[20] Mr. Barrett was released by the medical staff at the hospital. He left the emergency department at approximately 9:20 a.m. At 9:21 a.m., Mr. Barrett was transported to Barrie Police station, all of which was audio recorded. Mr. Barrett asked the transporting officer, PC Scales, if he was going to Penetang or to court. PC Scales told Mr. Barrett that he did not know; he was not involved in the investigation and was just transporting him, and that Mr. Barrett would have to talk to the investigators.
[21] Mr. Barrett was taken to the booking area at Barrie Police station. Parts of the recording of the booking procedure, as well as parts of the other recordings, were inaudible. When DC Lynch told Mr. Barrett that she was going read him his right to counsel, Mr. Barrett responded, “Yeah, I wanna talk to counsel”. DC Lynch then read Mr. Barrett his right to counsel and cautioned him. Mr. Barrett was asked if he wished to call a lawyer now and he replied in the affirmative. When DC Lynch asked Mr. Barrett if he understood what the secondary caution meant, Mr. Barrett responded, “Uh, I need to talk to a lawyer”.
[22] Mr. Barrett was then searched and asked a number of questions. He was told that he would go to a cell to wait until the lawyer called back. DC Howe was present when DC Lynch read Mr. Barrett his right to counsel during the booking procedure. At 9:40 a.m., DC Howe left a message for duty counsel. At approximately 9:55 a.m., duty counsel called back and Mr. Barrett was allowed to speak to duty counsel in private. Mr. Barrett was then returned to his cell at approximately 10:02 a.m. At 10:30 a.m., he was observed to be lying down. At 11:00 a.m., he was sitting up.
[23] At 11:25 a.m., Mr. Barrett was taken to an interview room and a videotaped interview was conducted with DC Lynch. DC Lynch had been told that DC Scales had read Mr. Barrett his right to counsel and caution when he arrested him for murder and her understanding was that Mr. Barrett understood his right to counsel and caution. DC Lynch had nothing noted in her notebook that Mr. Barrett wanted to contact someone in particular.
[24] At the outset of the first videotaped interview, DC Lynch confirmed with Mr. Barrett that he had spoken to duty counsel. Early in the interview, Mr. Barrett said he needed his “meds”. He told the officer he did not “have any more right now”; that he was to get them on “the 17th, tomorrow.” He said he needed to talk to “somebody like [his] counsellor”. Near the beginning of the 11:25 a.m. interview, Mr. Barrett said, "I can't say no more until I talk to my lawyer, my lawyer." He said I want to “call my lawyer”. On several occasions DC Lynch told Mr. Barrett that he had had a chance to do that already and Mr. Barrett did not disagree. Mr. Barrett told DC Lynch that he would tell his lawyer what happened and asked whether he should have a lawyer "present right now". In response, DC Lynch explained that Mr. Barrett already had the opportunity to speak to a lawyer and a lawyer does not need to be present with him.
[25] During the 11:25 a.m. interview, Mr. Barrett repeatedly requested his medications and indicated that he wanted and needed to “tell my lawyer what happened". Mr. Barrett repeatedly said that the lawyer told him not to say anything. Later, Mr. Barrett asked about Aimee and said, "…so she can talk to my lawyer. The lawyer will talk to her".
[26] At one point, Mr. Barrett said he wanted to talk to his brother so that his brother could help him get a lawyer. At another point, Mr. Barrett said he wanted to talk to his brother and said, "I have rights". DC Lynch said, "Your right was to contact a lawyer". Mr. Barrett responded, "Yeah and I did and I'm doing what he advised me to do…" Later, Mr. Barrett stated that he was aware he needed a lawyer and had been exercising his rights. On a number of occasions, Mr. Barrett told the officer that he was “doing what [he] was advised to do.” He said, "I need my lawyer. I need my lawyer and I need to talk to Aimee".
[27] During that interview, Mr. Barrett asked a number of times if he could sleep and if he could lie down. He said that he was cold in the cell. Although Mr. Barrett faced the corner for most of the interview, there were several times that he faced DC Lynch or moved away from the corner. Throughout the interview, DC Lynch spoke to Mr. Barrett in a calm and respectful tone. Throughout, Mr. Barrett was responsive to the officer’s questions.
[28] Just before the interview ended, DC Lynch left the room and Mr. Barrett got up and walked around the interview room. The 11:25 a.m. interview ended at approximately 12:26 a.m. Mr. Barrett was again placed in a cell.
[29] Mr. Barrett was removed from his cell sometime just before 1:00 p.m. and was taken into an interview room. He had been hitting his head against the wall of the cell. A videotaped interview was conducted with Detective Constables Lynch and Fearon. When Mr. Barrett was brought into the interview room, he was moaning loudly and apparently shivering; this ended as soon as DC Fearon began speaking to him. Early in the interview Mr. Barrett was hitting his head on the wall. The video recording supports DC Lynch’s description that it was “constant…not…soft, but it was not like a slamming your head off the wall”. Mr. Barrett stopped when DC Fearon told him to stop.
[30] In the course of the second interview, Mr. Barrett again repeatedly requested his medication. He complained of cold sweats. DC Lynch confirmed what Mr. Barrett had told her: that his medication would not be dispensed until the next day. Mr. Barrett did not disagree or correct the officer’s understanding of the availability of the medication. He said, “So, talk to a doctor”.
[31] At times Mr. Barrett was sobbing. Other times he appeared calm. He said that he would talk to his lawyer first and that he was advised to talk to his lawyer. Mr. Barrett repeatedly said he wanted to talk to his brother. When DC Fearon asked why Mr. Barrett needed to talk to his brother so badly, Mr. Barrett said, “Because he's my brother I love him. I wanna make sure he knows I'm okay (unintelligible). I wanna give my brother a hug”. When DC Fearon told Mr. Barrett he wanted to compare Mr. Barrett's account with Aimee's, Mr. Barrett said, "but I was advised by my the those [sic] lawyers…not to say nothing". Near the end of the second interview, when DC Fearon told Mr. Barrett that he had talked to his lawyer. Mr. Barrett responded, "about my – yeah, no, I haven't". At the end of the second interview, Mr. Barrett again said he needed to talk to his lawyer. When DC Fearon told him he would have the opportunity the next day at bail court, Mr. Barrett said, “okay”.
[32] At times during the second interview, for example when describing his history, Mr. Barrett was forthcoming. At the end of the second interview, Mr. Barrett was told that his food had been ordered and at 1:24 p.m. Mr. Barrett was placed back in his cell. At 2:00 p.m. Mr. Barrett was noted to be “pacing” and “hungry”. His food was ordered. At 2:38 p.m. he was standing. Mr. Barrett was given his food at 2:54 p.m. At 3:30 p.m. and 3:58 p.m. he was noted to be standing.
[33] At 4:05 p.m., Mr. Barrett was noted to be having a seizure and was transported back to RVRHC. He was seen by the Emergency Room physician and medically cleared. Mr. Barrett was held on a Form 1 Application for Psychiatric Assessment under the Mental Health Act, due to “a lack of competence to care for himself” based on observations of bizarre behaviour.
[34] A Consultation Report prepared by Dr. Mulder was filed. Dr. Mulder saw Mr. Barrett on February 18, 2015 and had seen Mr. Barrett approximately 4 months earlier. Dr. Mulder reported that it was very difficult to determine whether Mr. Barrett was struggling with any type of psychotic symptoms: Mr. Barrett's description of voices was vague and there were inconsistencies in his history. Dr. Mulder reported that Mr. Barrett’s mood issues seemed to be well grounded in the reality of his current circumstances. Dr. Mulder noted that if “psychosis is present, it could very well be secondary to substance abuse". He suggested ongoing use of an antipsychotic such as Seroquel. Dr. Hakim’s Discharge Summary dated February 20, 2015 reported that there did not appear to be any delusional interpretation of Mr. Barrett's "vague auditory hallucinations" and they were probably secondary to substance abuse. After taking Seroquel, Mr. Barrett "started to get better". He was discharged on February 20, 2015 with a prescription for Seroquel.
Positions of the Parties
Position of the Defence
[35] The defence argues that Mr. Barrett’s statements to the police were involuntary because he was not of operating mind. In addition, Mr. Barrett was subjected to oppressive conditions: he was denied his medication, sleep, reasonable access to the phone, a caution and right to counsel and food. He was also cold. All of these things, together with the language the officers used, the undermining of duty counsel advice and Mr. Barrett's consumption of alcohol, resulted in inhumane conditions and Mr. Barrett’s will being overborne. The involuntary statements to the police during the arrest and morning attendance at RVRHC irreparably contaminated the video statements taken at the Barrie Police station.
[36] Mr. Barrett’s right to counsel was infringed by the officers’ failure to inform him of that right, to allow Mr. Barrett to contact his counsel of choice and to provide him with an opportunity to exercise that right. The police knew or ought to have known that Mr. Barrett wanted to exercise his right to counsel of choice. There were serious breaches of Mr. Barrett’s rights and the seriousness and impact of the breaches on the Charter right in question mandate an exclusion pursuant to s. 24(2) of the Charter of all utterances and statements made to police officers on February 16, 2015.
Position of the Crown
[37] The Crown’s position is that it has proven beyond a reasonable doubt that all utterances and statements made by Mr. Barrett were voluntary. If there is any issue with respect to the admissibility of the utterances or statements made before and at RVRHC, there is no connection with the statements taken at Barrie Police station.
[38] The police discharged their obligations under s. 10(b) of the Charter. Mr. Barrett was read his right to counsel upon arrest. There is simply no evidence before the court to support the notion that Mr. Barrett did not hear or understand the caution and right to counsel when it was read by PC Scales. The Crown submits that it is clear, when taking all of the circumstances into account, including what happened immediately before and after the reading of the right to counsel in the cruiser, that Mr. Barrett was aware of his right to counsel and chose not to respond. The police were not required to do anything more given what unfolded.
[39] The police did not attempt to elicit any information about the murder from Mr. Barrett. Mr. Barrett demonstrated in his interactions with police, recorded by DC Howe, that he knew he had a right to contact a lawyer. Mr. Barrett elected not to invoke his s. 10(b) rights until sometime later at the hospital when Mr. Barrett settled on contacting duty counsel. When he did so, police had a duty to “hold off” from asking questions relating to the offence until Mr. Barrett had an opportunity to speak with counsel. The police did exactly that. Police were responsive, given the circumstances, and did not question Mr. Barrett about the murder until after Mr. Barrett had a chance to speak to duty counsel.
[40] Mr. Barrett did not indicate at any point that there was a specific lawyer he wanted to contact and so was not diligent in advising the police, if he had a preferred counsel, of that counsel. Mr. Barrett's references, during his video statements, to the need to speak to "my lawyer", could not reasonably have been understood by the officers, given the context of the conversation, as a request to speak to a specific lawyer at that time.
Legal Principles
Voluntariness
[41] No statement by an accused to a person in authority is admissible unless proven voluntary beyond a reasonable doubt. To be proven voluntary, the statement must be the product of an operating mind; it must not have been obtained through threats or inducements; it must not have been made in oppressive circumstances; and it must not be the product of unacceptable police tactics or trickery. To admit a statement, a trial judge must be satisfied that, in all the circumstances, it was given freely and voluntarily: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3. Threats or promises, oppression and the operating mind doctrine are to be considered together and "should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule": R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 12, referring to Oickle, at para. 63.
[42] A determination of whether the Crown has proven voluntariness is essentially a factual one that must be made having regard to all of the relevant circumstances. In making the determination, the court must be “sensitive to the particularities of the individual suspect”: Oickle, at paras. 42 and 71.
[43] The operating mind requirement implies knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment. If the trial judge is left with a doubt about this question, the statement must be excluded: Oickle, at para. 63; R. v. Whittle, [1994] 2 S.C.R. 914, at pp. 21-22.
[44] If an accused person is "so devoid of rationality and understanding, or so replete with psychotic delusions, that his uttered words could not fairly be said to be his statement at all, then it should not be held admissible”: Whittle, at p. 23, referring to Nagotcha v. The Queen, [1980] 1 S.C.R. 714, at pp. 716-17. An accused person must possess the mental capacity to make an active choice about whether to speak to the authorities or not: Whittle, at pp. 25-26, referring to R. v. Hebert, [1990] 2 S.C.R. 151, at pp. 171-72.
[45] Oppressive circumstances can be created by inhumane conditions and can overbear a person's will, resulting in an involuntary statement: Oickle, at para. 58.
Derived Confessions Rule
[46] The derived confessions rule governs the admissibility of a confession that has been preceded by an involuntary statement. It is not a bright line rule that excludes all subsequent confessions. The rule holds that in some circumstances, the failure to prove an earlier statement voluntary will raise a doubt about the voluntariness of subsequent statements: R. v. M.D., 2012 ONCA 841, 293 C.C.C. (3d) 79.
[47] As outlined by the Court of Appeal for Ontario in M.D., at para. 54, to determine whether a subsequent statement will be excluded because of the taint left by a preceding involuntary statement, a trial judge must examine all the relevant circumstances to determine the degree of connection between the two statements. Such relevant circumstances include:
- The time span between the statements;
- Advertence to the earlier statement during questioning in the subsequent interview;
- Discovery of additional information after completion of the first statement;
- The presence of the same police officers during both interviews; and
- Other similarities between the two sets of circumstances.
[48] Ultimately, what matters most and mandates exclusion is that the connection is sufficient for the second statement to have been contaminated by the first: M.D., at para. 55.
[49] The derived confessions rule applies even where the second statement is otherwise voluntary: R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688, at para. 28.
Right to Counsel
[50] Section 10(b) of the Charter provides that everyone has the right, on arrest or detention, to retain and instruct counsel without delay and to be informed of that right. This right has two elements: (i) the informational component, which requires state authorities to advise the accused of his right, and (ii) the implementational component, which requires state authorities to facilitate that right. The purpose of this right is not only to ensure that detainees are informed of their rights, but also to ensure that they obtain advice about how to exercise them: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 26.
[51] If the detainee positively indicates that he does not understand his right to counsel, police cannot rely on a mechanical recitation of the right and must facilitate that understanding: R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 31.
[52] Section 10(b) of the Charter is concerned with ensuring that the detainee has an opportunity to obtain legal advice relevant to his legal situation. The emphasis is on ensuring that the detainee’s decision to cooperate with the investigation, or decline to do so, is free and informed: Sinclair, at paras. 24, 26 and 32.
[53] Absent proof of circumstances indicating that the accused did not understand his right to retain counsel when he was informed of it, the onus is on him to prove that he asked for the right but it was denied or he was denied any opportunity to even ask for it: R. v. Baig, [1987] 2 S.C.R. 537, at para. 6, referring to R. v. Anderson (1984), 45 O.R. (2d) 225 (C.A.), at p. 431. The implementational duty is not triggered unless and until an accused indicates a desire to exercise his right to counsel: Willier, at paras. 30, 33.
[54] The implementational duty imposed on police by s. 10(b) requires that they refrain from eliciting evidence from the detainee until he has had the opportunity to consult counsel. This obligation is related to the right to silence enshrined as a principle of fundamental justice under s. 7 of the Charter. The right to silence only has meaning if detainees are informed of that right. Continuing an investigation by asking the detainee questions related to the offence before they have been afforded the opportunity to consult counsel is therefore a breach of both ss. 7 and 10(b) of the Charter: Willier, at para. 33; R. v. Ross, [1989] 1 S.C.R. 3, at para. 17; Hebert, at pp. 176-177.
[55] The right to counsel must be facilitated “without delay” because when someone is detained by state authorities, they are put in a position of disadvantage. They are both deprived of their liberty and put at risk of incriminating themselves. The Charter recognizes their immediate need for legal advice in order to protect against self-incrimination and to assist in regaining their liberty. The Crown bears the burden of proving the reasonableness of any delay: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 22 and 24.
[56] The determination of whether a delay in implementing the right to counsel is justified involves a fact specific contextual determination. Cases where there are practical considerations, such as lack of privacy, can justify some period of delay. However, the delay must only be for so long as is reasonably necessary: R. v. Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, at paras. 77-78.
[57] Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended: Sinclair, at para. 27; R. v. Owens, 2015 ONCA 652, 127 O.R. (3d) 603, at para. 25.
[58] As McLachlin J. explained in Hebert, at p. 177, “The guarantee of the right to counsel in the Charter suggests that the suspect must have the right to choose whether to speak to the police or not, but it equally suggests that the test for whether that choice has been violated is essentially objective.”
[59] A renewed right to consult a lawyer can arise if there are new procedures involving the detainee, a change in jeopardy, there is reason to question the detainee's understanding of his right to counsel and his right to remain silent or police have undermined the legal advice that the detainee has received: Sinclair, at paras. 50-53, 67.
Counsel of Choice
[60] As the Supreme Court of Canada held in Willier, at para. 35:
Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning.
[61] Diligence must accompany a detainee’s exercise of the right to counsel of choice. Reasonable diligence in the exercise of the right to choose one's counsel depends upon the context facing the detainee or accused person. On being arrested, the detained person is faced with an immediate need for legal advice and must exercise reasonable diligence accordingly. By contrast, when seeking the best lawyer to conduct a trial, the accused person faces no such immediacy. It is only if counsel of choice cannot be available in a reasonable time that a detainee will be expected to speak to another lawyer of their choice or to duty counsel: Willier, at para. 35.
[62] In R. v. Blackett (2006), 36 M.V.R. (5th) 223 (Ont. Sup. Ct.), at para. 63, Ferguson J. explained that:
[I]t is not the duty of police to take any particular step or to exhaust all possible avenues for contacting counsel. Their duty is to exercise reasonable diligence in facilitating contact with counsel of choice and the caselaw indicates that taking some good faith step…is sufficient.
[63] Accepting a phone call with duty counsel when the accused has sought to speak to counsel of choice does not amount to a waiver of the right to counsel of choice: R. v. Barrientos, 2014 ONSC 2862, at para 70; R. v. Kumarasamy (2002), 22 M.V.R. (4th) 234 (Ont. Sup. Ct.), at paras. 20-21.
Waiver
[64] The right to counsel can be waived but any such waiver must be clear, unequivocal and with full understanding of the consequences of such waiver. The burden is on the Crown to establish an unequivocal waiver and the standard for such waiver is very high: Clarkson v. The Queen, [1986] 1 S.C.R. 383, at para. 18; Ross, at para. 14; R. v. Prosper, [1994] 3 S.C.R. 236, at paras. 44 and 50; R. v. Bartle, [1994] 3 S.C.R. 173, at paras. 16-18.
[65] The issue of waiving s. 10(b) rights only arises when the accused has established on a balance of probabilities that he invoked his right to counsel: Sinclair, at para. 27; Owens, at para. 22.
[66] Complying with police requests before speaking to counsel does not constitute a waiver: Ross, at para. 20.
Section 24(2)
[67] Where there has been a Charter breach, the remedy is the exclusion of evidence obtained thereby pursuant to s. 24(2). The court must assess (a) the seriousness of the breach, (b) the impact of the breach on the accused’s Charter-protected interests, and (c) society’s interest in adjudication on the merits: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
[68] Only rarely will statements obtained after breach of the right to counsel be admitted under s. 24(2). In R. v. Evans, [1991] 1 S.C.R. 869, at p. 25, the Supreme Court of Canada held that admission of an incriminating statement generally “results in unfairness because it infringes his privilege against self-incrimination and does so in a most prejudicial way – by supplying evidence which would not be otherwise available.” In R. v. Collins, [1987] 1 S.C.R. 265, at pp. 284-85, Lamer J. held that this evidence “will generally go to the very fairness of the trial and should generally be excluded”.
Analysis
1. Has the Crown proven beyond a reasonable doubt that Mr. Barrett's utterances and statements were voluntary?
[69] In determining this issue, it is necessary to evaluate all of the circumstances. Save and except for some of the earlier interactions with Constables Scales and Watt, the bulk of the interactions that the police had with Mr. Barrett were either audiotaped or videotaped.
[70] The parties relied on Constables Scales and Watt's evidence given at the preliminary inquiry. Other officers who had involvement with Mr. Barrett were either called to give evidence or their interactions with him were audiotaped or videotaped.
[71] When PC Scales approached Mr. Barrett, PC Scales was in uniform and in a marked cruiser. He asked Mr. Barrett his name. Mr. Barrett gave his name correctly and told PC Scales that he was on his way to turn himself in. This comment shows that Mr. Barrett was aware that he was speaking to police. The content shows that he was trying to be cooperative. After PC Scales told Mr. Barrett that he was under arrest, Mr. Barrett followed PC Scales’ commands to put his hands on the cruiser. When PC Scales was first interacting with Mr. Barrett, there was no evidence of mental distress, impairment or intoxication. Mr. Barrett was understandably cold, given the weather. It was only when Mr. Barrett was told that he was under arrest for murder that his demeanour changed. I am satisfied that, to this point, Mr. Barrett's conduct was indicative of an operating mind. He was obviously aware that he was speaking to police. His reaction to being advised that he was under arrest for murder, albeit extreme, showed that he possessed cognitive function.
[72] Although Mr. Barrett was obviously distraught and exhibiting unusual behaviour, the two officers were able to calm him down and get him into the cruiser. PC Scales testified that he read Mr. Barrett his right to counsel and caution “probably a little louder” than normal and that Mr. Barrett would be able to hear through the Plexiglas partition. Supportive of Mr. Barrett's ability to hear is the fact that Mr. Barrett was able to hear PC Scales during the audiotaped transport from the hospital to the police station. PC Scales turned around to look at Mr. Barrett when he asked Mr. Barrett if he understood his right to counsel and caution. Mr. Barrett was crying and swaying back and forth and looking in PC Scales' general direction. PC Scales testified that he believed that he was very clear with Mr. Barrett and that Mr. Barrett had heard him and chose not to respond.
[73] In the ambulance bay, Mr. Barrett spontaneously offered the comment, "He threatened to kill me" and asked if Ms. Novak was okay and if she was in trouble. There is no other reasonable finding than that Mr. Barrett wanted the police to take note of the threat to kill him. His inquiry about Ms. Novak demonstrates his awareness that something had happened to Ms. Novak, the alleged victim of his aggravated assault. The comments made by Mr. Barrett while in police custody that his life was “fucked” demonstrate his awareness of his predicament: he had just been arrested for murder. All of these utterances show a high degree of awareness and demonstrate an operating mind.
[74] Near the beginning of the audiotaped interactions with Mr. Barrett, DC Cuff confirmed with Mr. Barrett that he had been given his caution and his right to counsel. Mr. Barrett did not disagree with this statement. The “soft” caution given by DC Cuff re-informed Mr. Barrett that he did not have to say anything but that if he did it could be used against him. When asked if he understood, Mr. Barrett confirmed that he did. In the course of the interactions at the hospital, Mr. Barrett said that he needed to talk to a lawyer. This shows that Mr. Barrett was aware of his right to counsel. I find that this evidence is supportive of PC Scales’ evidence that Mr. Barrett understood the cautions and the right to counsel when he read them to Mr. Barrett.
[75] The content of the audiotaped interactions with Mr. Barrett at RVRHC clearly show that Mr. Barrett was aware that the police were speaking to him, photographing his injuries and recording their interactions with him. He was responsive and showed no confusion when asked to show the officers any marks on his body. It is obvious that Mr. Barrett wanted the police to be aware of his injuries. Although he at times was moving oddly and complaining of needing his medication, Mr. Barrett had the cognitive capacity to clearly name his CMHA counsellor and list his medications. The content of his discussions with PC Scales during the transport to the police station shows that Mr. Barrett was aware of his circumstances and oriented to what was happening and to whom he was speaking.
[76] I find nothing objectionable in the way that DC Cuff directed Mr. Barrett to use his words to tell him about his injuries. The audiotape confirms the officer’s assessment that Mr. Barrett was being “very much non-verbal to that point”. None of the officers asked Mr. Barrett any questions about what happened or how Mr. Barrett’s injuries were sustained, despite the obvious opportunity to do so. The audio recording discloses that PC Scales and Detective Constables Howe, Cuff and Way spoke to Mr. Barrett respectfully and politely. During her interactions with Mr. Barrett, DC Howe was responsive to Mr. Barrett’s reported medical concerns. She asked Mr. Barrett on a number of occasions if he wanted water, if he thought he was going to be ill and told him she would speak to the doctor about his reported need for medication. DC Howe was responsive to Mr. Barrett’s request to speak to a lawyer; when DC Way ascertained from Mr. Barrett that he did not know what lawyer he wanted to talk to, DC Howe advised Mr. Barrett he could speak to any lawyer of his choice and that if he did not have one they could get duty counsel for him. DC Howe advised Mr. Barrett of the difficulty of ensuring privacy in the hospital and secured Mr. Barrett’s agreement to wait until his return to the station to speak to duty counsel.
[77] After being given 10 mg of Valium and discharged from RVRHC, Mr. Barrett continued to respond appropriately to any directions or later questions, save and except on one occasion, when he was asked if he understood the secondary caution. It is clear that Mr. Barrett knew what was going on, to whom he was speaking and that he was being recorded when he arrived at the police station. He answered all other questions appropriately and without difficulty. His interactions as shown in the booking video demonstrate that Mr. Barrett had an operating mind.
[78] When the first interview began, Mr. Barrett had been at the station for approximately 2 hours. DC Lynch confirmed with Mr. Barrett that he had spoken to duty counsel. She cautioned him to not allow anything said to him by any police officer to influence him in making a statement. She offered him something to drink. Mr. Barrett knew that the police were trying to get information from him that could be used against him. Although Mr. Barrett was rocking back and forth and looking in the corner through much of the interview, when DC Lynch pointed on her arm to show where Ms. Novak had been stabbed, Mr. Barrett looked away from the corner and at her arm to see where DC Lynch was pointing.
[79] Mr. Barrett was able to give his CMHA counsellor's name. He was quite willing to offer certain information to the police, such as the untimely death of his parents. This shows that he had control over information that he wished to impart to the police. He repeatedly told DC Lynch that he was aware that he did not have to speak to the police. It is clear from the content of the first videotaped interview that Mr. Barrett was aware that the police could use what he said to his detriment.
[80] When DC Lynch left the room, Mr. Barrett's demeanour changed drastically. He got up and walked around. This, too, demonstrates that he was in control of the situation and was in possession of an operating mind.
[81] When Mr. Barrett first came into the interview room for the second interview, he was moaning loudly and shivering intensely. He stopped moaning and shivering as soon as DC Fearon began speaking to him. Although Mr. Barrett continued to complain of issues with his “mind” in the second videotaped statement, Mr. Barrett was again responsive to the officer’s questions and able to control the information he was prepared to provide. He was quite willing to tell the officers about the horrible living conditions in his building. When DC Fearon told Mr. Barrett to stop hitting his head because it was hard for them to talk when he did that, Mr. Barrett stopped. Mr. Barrett willingly told the officers about previous difficulties he had had with Mr. Segota, the victim of the alleged murder and about the difficulties he faced when his mother died. Mr. Barrett was not prepared to discuss the events in question. He told the police that they “know the story and this is just how you play the friggin’ game there”. It is clear from the content of the second videotaped interview that Mr. Barrett was aware that the police could use what he said to his detriment.
[82] The medical records relating to assessments conducted after Mr. Barrett was returned to the hospital later that afternoon provide nothing conclusive on the issue of an operating mind. He was medically cleared after being taken in for what was described in Dr. Hakim’s consultation report dated February 17, 2015 as “query seizure activity”. Dr. Hakim noted that although Mr. Barrett told him that he did not remember the day of the week or date of the month, staff told Dr. Hakim that a few minutes earlier Mr. Barrett knew these things "exactly". As noted, Dr. Mulder concluded that it was difficult to determine whether Mr. Barrett was struggling with any type of psychotic symptoms although he did suggest ongoing use of an antipsychotic. Dr. Hakim's discharge summary added nothing to the issue of Mr. Barrett's operating mind. Mr. Barrett's past generalized diagnoses of depression and social anxiety and his possible antisocial personality disorder and apparent seizure disorder do not assist in determining the issue of operating mind.
[83] During both videotaped interviews, Mr. Barrett was almost constantly rocking back and forth and facing toward the wall. In all of the recordings he was at times sobbing. However, I find it necessary to look beyond Mr. Barrett’s apparent distress during all of the recorded interactions to properly assess whether: (i) he had an operating mind, and (ii) he was so negatively affected by the conditions around him that his will was overborne. Mr. Barrett’s behaviour became less dramatic on a number of occasions, for example when he looked at DC Lynch’s arm to see where Aimee had been stabbed, when DC Lynch left the room at the end of the first interview and at the beginning of the second interview when DC Fearon began questioning him. I find it is reasonable to infer, and I do infer, that Mr. Barrett was in fact much more in control of his emotional state and much less affected by the situation around him than he at times portrayed. Mr. Barrett was also able to choose what to say and not say – a relevant consideration in determining whether he had an operating mind or was subjected to oppressive conditions.
[84] I turn now to a consideration of the conditions facing Mr. Barrett throughout the course of the day.
[85] All of the officers with whom Mr. Barrett interacted were courteous towards him. When Constables Scales and Watt were concerned about Mr. Barrett’s behaviour, they immediately took him to the hospital. DC Cuff dealt fairly with Mr. Barrett. I accept his evidence that he gave a “soft” caution to establish rapport. The record is clear that the identification officers were present to take photographs and document any injuries, not to question Mr. Barrett about the incident. There were obvious opportunities to follow up and question Mr. Barrett about what happened if that had been their true purpose. Mr. Barrett was given a blanket, water and medical treatment and seen by a nurse and a doctor. He was given medication and cleared medically from the hospital. He was put in touch with duty counsel shortly after his arrival at the station and then placed in his cell for approximately an hour and 20 minutes before his first videotaped interview. In that time frame, he was seen lying down. Although Mr. Barrett was not given a blanket in his cell, the failure of the police to do so (DC Lynch told Mr. Barrett that "people do crazy things with them") is understandable. Despite DC Lynch's evidence that the cell was colder than the interview room, there was no evidence that the cell was unbearably cold or uncomfortable. Mr. Barrett was brought into the interview room where it was warmer. Mr. Barrett's extreme but short-lived reaction to the cold at the beginning of the second videotaped interview after having been in the cell for approximately 30 minutes leads me to place no weight on the legitimacy or reasonableness of his reaction.
[86] Despite the defence submission that Mr. Barrett’s consumption of alcohol is a factor to be considered, the only evidence before me, other than the odour of alcohol smelled on Mr. Barrett by PC Scales, is the nurse’s comment that the testing at the hospital showed no alcohol in Mr. Barrett’s system.
[87] Mr. Barrett never requested a drink or food during the course of his two videotaped interviews. He was provided orange juice, although it does not appear that he drank much, if any, of it. It appears from the Prisoner Log that Mr. Barrett said that he was hungry at approximately 2:00 p.m., food was ordered and Mr. Barrett was fed at 2:54 p.m.
[88] Mr. Barrett was not left to linger for hours in his cell. Approximately an hour and 20 minutes passed between Mr. Barrett's discussion with duty counsel and the beginning of the first videotaped interview. Approximately 30 minutes passed between the first and second videotaped interviews.
[89] DC Lynch agreed that Mr. Barrett would have been physically and mentally exhausted at the time of his first videotaped interview. He did request a number of times that he be allowed to sleep. However, Mr. Barrett was seen lying down at 10:30 a.m. He was not seen lying down at any other time. A review of the record does not support that the police deprived Mr. Barrett of sleep.
[90] Much was made of the failure of DC Lynch to obtain medication for Mr. Barrett. Considering Mr. Barrett’s earlier discharge from the hospital, DC Lynch understandably considered that Mr. Barrett had been “medically cleared”. In addition, a review of the audiotaped interactions at the hospital and of the videotaped interviews does not support any denial of medication. Mr. Barrett had advised DC Lynch that his medication was not available until the next day. DC Lynch confirmed that information with Mr. Barrett in the course of both videotaped interviews. The Drug Claims Detail form from the Ministry of Health and Long-Term Care filed by the defence noted Mr. Barrett’s prescriptions were not due to be renewed until February 17. Considering Mr. Barrett’s answers to questions about his medication, I fail to see how DC Lynch or any other officer could have been aware that Mr. Barrett had medication in his apartment, albeit no bottle of Seroquel, the medication that was due to be prescribed the next day. DC Lynch did follow-up by calling CMHA after the interviews. She was told that it was a holiday and Mr. Barrett's counsellor was not working. The officer was advised that, contrary to the information provided by Mr. Barrett, medication could not be obtained online. Despite Mr. Barrett’s repeated assertion of his need for medication, it is clear that he remained able throughout his interactions with police to control the information he provided.
[91] Mr. Barrett said in the course of the first interview that he was feeling pressured and was being coerced to say things, however, DC Lynch's tone with Mr. Barrett was calming and compassionate throughout. Although DC Fearon’s tone was more assertive, neither his tone nor his questioning could be considered to be aggressive. When Mr. Barrett was hitting his head against the wall in the cell between the two videotaped interviews, officers removed him from the cell. They told him to stop hitting his head and he stopped. None of the officers throughout the course of the day used “strong” or inappropriate language that caused Mr. Barrett to make an utterance or a statement. Detective Constables Lynch and Fearon did not undermine or disparage any advice given by duty counsel or denigrate counsel’s role.
[92] The failure to allow Mr. Barrett to phone his brother is hardly unreasonable. Despite DC Lynch’s evidence that she would have facilitated contact if she had heard Mr. Barrett’s request, this seems questionable given that Mr. Barrett was seen leaving his brother’s home approximately 30 minutes before he was arrested. Even Mr. Barrett’s request to contact his brother “so he can help me get a lawyer” is ambiguous: nothing was said that would reasonably make it clear that his brother had information that would allow Mr. Barrett to contact a specific lawyer, if that was the case.
[93] My assessment of the above circumstances and conditions should not be seen as an assessment of these matters individually. I am aware that all of the circumstances facing Mr. Barrett must be considered as a whole to determine whether he was deprived of his free choice to decide to make a statement. Having considered all of the evidence, I am satisfied beyond a reasonable doubt that the Crown has proven that the utterances and statements of Mr. Barrett were the product of an operating mind. Mr. Barrett knew what he was saying and that he was saying it to police officers who could use it to his detriment. I find that the conditions facing Mr. Barrett were not so overwhelming or oppressive that his will was overborne.
[94] Given my finding, beyond a reasonable doubt, that all of the tendered utterances and statements of Mr. Barrett are voluntary, I need not consider the issue of "tainting" of any later statements.
2. Has Mr. Barrett proven, on a balance of probabilities, this his rights under s. 10(b) of the Charter were breached?
[95] I find that PC Scales complied with the informational component of the right to counsel. For the reasons set out earlier, I am satisfied that Mr. Barrett heard and understood the right to counsel and the cautions read by PC Scales: Mr. Barrett indicated his awareness of the right in the course of his interactions at RVRHC.
[96] It is at this time, when Mr. Barrett said that he needed to talk to a lawyer, that the implementational duty on the police was triggered. Police complied with this duty by asking Mr. Barrett what lawyer he wanted to contact. When Mr. Barrett indicated he did not know, DC Howe told him that he could speak to any lawyer of his choice and if he did not have one they would get duty counsel for him. When Mr. Barrett asked if Ms. Novak was okay, DC Cuff did not engage him in a discussion about the offence.
[97] At the time Mr. Barrett said he wanted a lawyer, police were photographing him. There is no issue taken with the right of the police to document Mr. Barrett’s injuries or take photographs of him. I am satisfied that the identification officers were there for that purpose, not to question Mr. Barrett about the offence.
[98] Several moments later, when Mr. Barrett again raised the issue of talking to a lawyer, DC Howe asked him if he said he wanted to speak to duty counsel. Mr. Barrett said, “Yeah”. DC Howe again reiterated the need to do so in private and obtained Mr. Barrett's agreement to see how long it would take for the doctor to see him before DC Howe made arrangements for Mr. Barrett to speak to duty counsel at the hospital.
[99] The audiotaped interaction at the hospital makes it clear that Mr. Barrett indicated a desire to speak to duty counsel. There was a delay in implementing Mr. Barrett's right to counsel, however I find that the delay was justified and was only for so long as was reasonably necessary. The police could not easily provide Mr. Barrett with privacy at the hospital. They secured Mr. Barrett’s agreement to await the attendance of the doctor to assess him. Within minutes, medical staff attended and spoke to Mr. Barrett about his medications and dealt with his physical needs. The doctor then arrived. As soon as the doctor had assessed Mr. Barrett, prescribed him Valium and ordered that he could be discharged, police readied Mr. Barrett and transported him to the station where he was put in touch with duty counsel within 30 minutes of his arrival. No officer engaged Mr. Barrett in a discussion of what happened, either before or after Mr. Barrett indicated a desire to speak to counsel, or actively elicited any utterances or statements from Mr. Barrett.
[100] Once at the station, DC Lynch asked Mr. Barrett if he understood why he was there. He responded in the affirmative. She asked him why and he answered, "because of what happened". DC Lynch then indicated that her understanding of the reason was that he was under arrest for murder and aggravated assault. I see nothing improper in the manner in which DC Lynch addressed Mr. Barrett's understanding of the reason he was at the station. A review of the booking video supports her evidence that she was solely attempting to ensure that Mr. Barrett understood that he was under arrest for murder and aggravated assault and was not attempting to elicit evidence before Mr. Barrett had a chance to speak to a lawyer.
[101] When DC Lynch told Mr. Barrett that she was going to read him his right to counsel, Mr. Barrett said he wanted to talk to counsel. The officer then read Mr. Barrett the right to counsel as well as the primary and secondary cautions. When asked if he understood, Mr. Barrett’s answer was not responsive; he said, “I need to talk to a lawyer”. I am satisfied, having considered PC Scales’ evidence, the audio recording of the events at the hospital and the video of the booking procedure, that by this point Mr. Barrett was well aware that he had the right to contact any lawyer he wished. Mr. Barrett he did not give the name of a lawyer or indicate that there was a particular lawyer to whom he wished to speak.
[102] DC Howe, who had the discussion about duty counsel with Mr. Barrett at the hospital, contacted duty counsel at the station. Mr. Barrett spoke to duty counsel. I am satisfied that Mr. Barrett had an opportunity to obtain legal advice relevant to his legal situation. His decision whether to cooperate with the investigation, or decline to do so, was free and informed.
[103] At the beginning of the first videotaped interview, DC Lynch confirmed that she had read Mr. Barrett his right to counsel and that he had spoken to a duty counsel lawyer. Mr. Barrett raised no concerns about counsel and did not ask to speak to another lawyer. Mr. Barrett told DC Lynch that he was defending himself and his girlfriend and that was all he had to say and he “can't say no more until I talk to my lawyer”. DC Lynch told Mr. Barrett that he had a chance to do that already. Mr. Barrett did not disagree. Later, DC Lynch again told Mr. Barrett that he had the opportunity to speak to a lawyer. Again, Mr. Barrett did not disagree.
[104] Mr. Barrett indicated a number of times throughout the first videotaped statement that the lawyer told him to say nothing and that he wanted to talk to his lawyer and call his lawyer. He told the officer to talk to his lawyer. On a number of occasions, Mr. Barrett said that he was exercising his rights. At one point, when DC Lynch confirmed that the only person Mr. Barrett was allowed to talk to outside of the police station was his lawyer and he had that opportunity. Mr. Barrett responded, "Yeah, well, they told me not to say nothing so why should I fuckin’ trust you.”
[105] Mr. Barrett asked to lie down and sleep for a bit and said that in the morning he would go talk to his lawyer. Mr. Barrett asked to speak to his brother “to tell him that I love him and make sure he knows I’m okay so he can help me get a lawyer". Mr. Barrett said that Ms. Novak can talk to his lawyer and the lawyer will talk to her. He said he was going to tell his lawyer the truth and that he was doing what he was advised to do. Towards the end of the first videotaped statement, Mr. Barrett said that he had a right to see his brother. DC Lynch told him that his right was to contact a lawyer and Mr. Barrett responded, "Yeah and I did and I'm doing what he advised me to do."
[106] Approximately 12 minutes into the second videotaped statement, Mr. Barrett told DC Fearon that he was advised by "my the those [sic] lawyers not to say nothing". Later, Mr. Barrett told the officers that they know the story and "this is just how you play the friggin’ game there”. After mentioning that he would talk to his lawyer first and had been advised to talk to his lawyer, DC Fearon told Mr. Barrett that he had talked to his lawyer. Mr. Barrett responded "about my – yeah, no, I haven’t”. At the end of the interview, Mr. Barrett said he needed to talk to his lawyer now. DC Lynch told Mr. Barrett that he would have that opportunity the next day at bail court. Mr. Barrett responded, "Okay".
[107] I accept DC Lynch’s evidence that during the first interview she did not hear Mr. Barrett say he wanted to talk to his brother so he could help [Mr. Barrett] get a lawyer. In making this determination I have considered the manner in which DC Lynch testified about what she thought she heard, and her obvious surprise when the passage was replayed for her. I accept her evidence that her uncertainty regarding what was said by Mr. Barrett related to a passage in the second videotaped statement.
[108] Even if DC Lynch had heard Mr. Barrett say that one of the reasons he wanted to talk to his brother was so he could help him get a lawyer, I am not satisfied that this would have triggered an obligation on the police to stop the interview and allow Mr. Barrett to contact his brother. First of all, as noted earlier, Mr. Barrett was last seen leaving the building where his brother resided. Secondly, Mr. Barrett’s comment was followed only sentences later by Mr. Barrett telling the police to “talk to my lawyer”. I fail to see how Mr. Barrett’s comment could reasonably lead anyone to conclude that Mr. Barrett wanted to speak to his brother to facilitate contact with counsel of choice.
[109] A review of the audiotape from RVRHC, the booking video and the two videotaped interviews in their entirety fails to support that Mr. Barrett sought to exercise his right to counsel by speaking with counsel of choice. There is nothing in the recordings to even suggest that Mr. Barrett had a lawyer in mind, or that contact with anyone else, including his brother, would provide him with a name, number or means to contact a lawyer.
[110] I do not accept the defence submission that the police knew or ought to have known that Mr. Barrett wanted to exercise his right to counsel of choice. At RVRHC Mr. Barrett indicated a desire to speak to duty counsel. That is a relevant consideration on this application. Mr. Barrett had the opportunity to speak to duty counsel before police attempted to elicit evidence from him. He did not at any point indicate that he was not satisfied with the advice he had been given. Although Mr. Barrett repeatedly indicated he wanted to speak to a lawyer, I find it is reasonable to infer, and I do infer, that he wanted to speak to a lawyer to assist him in the conduct of his defence, to have his lawyer hear his version of events and speak to Ms. Novak.
Conclusion
[111] The Crown has satisfied me beyond a reasonable doubt that the utterances and statements of Mr. Barrett that the Crown seeks to introduce were made voluntarily. The defence has failed to establish, on a balance of probabilities, that Mr. Barrett’s rights under s. 10(b) of the Charter were infringed. In view of my findings, there is no need to consider submissions on s. 24(2) of the Charter.
[112] Accordingly, the Crown’s application is granted. The defence application is dismissed.
QUINLAN J.