CITATION: R. v. Oxley, 2017 ONSC 4546
COURT FILE NO. G1278/13
DATE: 20170726
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Applicant
– and –
William Oxley
Respondent
Sarah Repka, for the Crown
Anthony Marchetti, for the accused
Heard: April 21 and July 24, 2017
Bale J.:
Reasons for Decision
[1] Crown counsel asks that a video statement, made by the accused, be ruled to have been made voluntarily. Her purpose in asking for the ruling is not to prove it as part of the Crown’s case; but rather, so that she may cross-examine the accused on the statement, should he elect to testify.
[2] Defence counsel opposes the application, and argues that there was an inducement which rendered the statement involuntary. In addition, he asks that I find Mr. Oxley’s rights under section 10(b) of the Charter to have been violated, as a result of the failure of the police to give him a Prosper warning, as provided for in R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236.
[3] Mr. Oxley was advised of his right to counsel at the outset of the police interview, immediately following his arrest. He said that he understood his right to contact a lawyer of his choice, and that he would like to contact either Alex McLeod or Scott McLeod. He was then advised of his right to remain silent, and said that he understood the caution to mean: “I don’t have to make a statement, until my lawyer is present.”
[4] Officer Dekoker then informed Mr. Oxley of the substance of the allegations against him. When Oxley responded: “It’s not true though”, Dekoker said: “Okay. Um, we’ll get you that lawyer before we go too far, so how about we do that, okay?”
[5] While Officer Dekoker was out of the room attempting to reach counsel, Mr. Oxley asked Officer Ginn whether he would be released on a promise to appear. Officer Ginn’s answer was: “Constable Dekoker will explain that, but that’s my understanding - you will be released on a promise to appear, and an undertaking with conditions, as long as you agree to abide by those conditions.” Mr. Oxley responded with: “Sounds good to me”, and “I’ve never once violated an order or anything.”
[6] With Officer Dekoker still out of the room, Mr. Oxley again attempted to address the allegations against him, and was stopped a second time (this time by Officer Ginn), and told that they had to wait until he had spoken with a lawyer.
[7] Officer Ginn then said “If you want to waive that, we can certainly chat about it, but you’ve asked to speak to your lawyer. So to be fair to you . . .you understand where I’m coming from?” Mr. Oxley’s response was that he did understand.
[8] When Officer Dekoker returned to the room, he informed Mr. Oxley of his yet unsuccessful attempts to reach either of the Messrs. McLeod, and asked whether he would like to speak with duty counsel, in the meantime. Mr. Oxley said that he would, and Officer Dekoker left the room, called duty counsel, and left a message for duty counsel to call.
[9] When it appeared that there might be some wait for duty counsel to return the call, the following exchange took place between Officer Dekoker and Mr. Oxley:
Oxley
If I waive my rights to duty counsel and my lawyer, could we get this done and over with, and be released on a promise to appear in court?
Dekoker
Yes, I’m going to be releasing you on a promise to appear, with um, just some conditions. But your right to talk to a lawyer – I don’t want to force you, or pressure you or make you feel like .…
Dekoker
.… there’s a time limit. Because you’re still within your rights. Scott may call, Alex may call back. Duty counsel.
Oxley
Even after you called me, I’ve been trying to call him all day too. After you called me this morning.
Oxley
I was “okay, they’re calling me in for questioning, I don’t know what’s going on, but I haven’t done nothing wrong.”
Dekoker
Okay. Well it’s up to you. You’ve asked to speak to a lawyer, I’ve called the lawyers for you. Duty counsel won’t be long calling back. I hope. I mean, I don’t know, but again, I don’t – don’t want that time to pressure you. But if you want to talk to me, then go ahead and talk to me. It’s – I can’t make you not talk.
Oxley
I’ll waive it. Let’s talk, get this over with. I’ve got nothing to hide. I haven’t done nothing wrong.
[10] Following this exchange, and without anything further, Officer Dekoker began to question Mr. Oxley, and obtained the statement in issue.
[11] Part way through the giving of the statement, duty counsel returned the call, and Mr. Oxley spoke with him or her. Following this consultation, the police interview continued.
[12] On cross-examination on the voir dire, defence counsel referred Officer Dekoker to Mr. Oxley’s question: “If I waive my rights to duty counsel and my lawyer, could we get this done and over with, and be released on a promise to appear in court?” Counsel then asked Dekoker whether he had then had the impression that Oxley was asking whether, if he gave a statement, he would be released on a promise to appear. Dekoker’s answer was: “Yes, that’s why I tried to explain that basically it had nothing to do with how he was going to be released.”
[13] Officer Dekoker was also asked, on cross-examination, whether at the time Mr. Oxley asked about waiving his right to counsel, he told Oxley that he had an obligation, as a police officer, not to take a statement from him, or require him to participate in any incriminating process, until he had had an opportunity to consult counsel. Dekoker confirmed that he had not said that, and said that he did not think that he needed to.
[14] The defence position with respect to inducement is that even if no inducement was offered, the police knew that Mr. Oxley was under the impression that a release on a promise to appear was conditional upon him making a statement, and that they should have, but did not, disabuse him of that impression.
[15] However, I find as a matter of fact that Mr. Oxley never regarded his release on a promise to appear to be contingent upon him giving a statement, and there was no reasonable basis upon which he could have held such a belief. When Officer Dekoker first left the interview room to call Messrs. McLeod upon his behalf, Oxley asked Officer Ginn whether he would be in jail overnight, and was told that the intention was to release him on a promise to appear, provided that he agreed to abide by certain conditions. His response was “Sounds good to me”, and “I’ve never once violated an order or anything.” It is therefore clear that right from the outset, and before any discussion of waiver, Mr. Oxley was aware that he was to be released on a promise to appear, and that the only contingency was that he undertake to abide by whatever release conditions might be imposed. A release had never been offered to Oxley in return for making a statement, and I do not believe that he was offering to make a statement in return for his release – he had no reason to do so.
[16] When Mr. Oxley subsequently asked Officer Dekoker: “If I waive my rights to duty counsel, and my lawyer, could we get this done and over with, and be released on a promise to appear in court?”, his clear goal was to “get this done and over with” – he was anxious to leave the police detachment, and was prepared to waive his right to counsel, in order to get out of there, at the earliest opportunity. His reference to the promise to appear was simply to invite confirmation that he would be released, as he previously had been told. Officer Dekoker then reaffirmed that he would be released on a promise to appear, and at the same time, reminded him of his right to counsel, and encouraged him to wait for counsel to return his calls. All of this considered, I find that there was no inducement, and in the absence of any other concerns with respect to voluntariness, I am satisfied beyond a reasonable doubt that the statement was made voluntarily.
[17] The defence position with respect to Mr. Oxley’s section 10(b) right to counsel is that when it appeared that he was changing his mind about consulting counsel, the police were required to, but did not, tell him of his right to a reasonable opportunity to contact a lawyer, and of the obligation on the part of the police not to take any statements, or require him to participate in any potentially incriminating process, until he had had that reasonable opportunity. Defence counsel cited, as a recent statement of the requirement of a Prosper warning, the case of R. v. Fountain, 2017 ONCA 596.
[18] Prosper warnings are not required in all cases of waiver. However, where a detainee has asserted the right to counsel, and then apparently changed his mind, the burden of establishing waiver is on the Crown, and is a high one, requiring proof of an informed, unequivocal and voluntary change of mind. The detainee must know that he is giving up the constitutional protection which requires the police to hold off on efforts to obtain information from a detainee, until he has had a reasonable opportunity to consult with counsel.
[19] Unlike in Fountain, in the present case, Mr. Oxley knew that he was giving up the hold-off protection that he had been enjoying. He was giving it up, because he was anxious to leave the detachment and did not want to wait for counsel to call back, and because he had no intention of admitting any of the allegations that had been made (and, in fact, never did). He wanted to end the hold-off, and get on with the interview, so that he could leave, as soon as possible.
[20] When Mr. Oxley was initially advised of his right to counsel, and of his right to remain silent, he said that he understood that “I don’t have to make a statement until my lawyer is present.” While that statement may not be completely accurate, it is clear that he understood the concept of the hold-off period. Then, on two separate occasions, when Mr. Oxley started to talk about the allegations made against him, the police reminded him that there was to be no discussion, until he had had an opportunity to consult with counsel.
[21] In R. v. Willier, 2010 SCC 37, the court states that where a detainee who has been diligent, but unsuccessful, in contacting a lawyer, changes his or her mind, a Prosper warning is warranted to ensure that the detainee is informed that the right to counsel has not been exhausted by the unsuccessful attempts to contact a lawyer. In the present case, when Mr. Oxley suggested that he was considering a waiver of his right to counsel, Officer Dekoker reminded him that lawyers had been called, that it would likely not be long before they called back, and that Oxley should not bow to the pressure of time. It was therefore clear to him that his right to counsel had not been exhausted. It is worth noting here that the elapsed time between Mr. Oxley’s initial acknowledgement of his understanding of his right to counsel, and his waiver, was less than twenty minutes. In my view, diligence requires at least some patience, which was notably absent in this case.
[22] In these circumstances, I have no doubt but that Mr. Oxley knew what he was giving up, and that his waiver of the right to counsel was informed, unequivocal and voluntary.
[23] In summary, the video statement given by Mr. Oxley on September 23, 2013 was voluntary, there was no breach of his Charter section 10(b) right to counsel, and the statement is therefore admissible in evidence at his trial.
“Bale J.”
Released: July 26, 2017
CITATION: R. v. Oxley, 2017 ONSC 4546
COURT FILE NO. G1278/13
DATE: 20170726
ONTARIO
SUPERIOR COURT OF JUSTICE
(Proceeding commenced at Lindsay)
Her Majesty the Queen
Applicant
– a999nd –
William Oxley
Respondent
REASONS FOR DECISION
Bale J.
Released: July 26, 2017