R. v. Joseph, 2017 ONSC 4566

COURT FILE NO.: 15-SA5074

DATE: 2017/07/27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

STEEVENSON JOSEPH

Applicant

John Ramsay, for the Respondent

Ewan Lyttle, for the Applicant

HEARD: June 8, 2017

DECISION ON APPLICATION TO EXCLUDE THE STATEMENT OF THE ACCUSED

C. MCKINNON J.

[1] This is an Application brought by the accused, Steevenson Joseph, to exclude a statement given by him to Det. Chris Lavergne on June 18, 2015 following his arrest on June 17, 2015.

The Facts

[2] The alleged offences against the Applicant include human trafficking in relation to four under aged females; making child pornography by publishing their photographs in an online escort service; and sexually assaulting and sexually interfering with one of them, M.M.

[3] Under section 286.2(2) of the Criminal Code, R.S.C. 1985, c. C-46, the human trafficking provisions, which includes the offence of the procuring of persons under the age of 18 to provide sexual services, there is a 5 year mandatory minimum jail penalty. The offence of materially benefiting from the provision of sexual services of persons under 18 contrary to s. 286.3(2) of the Code carries a minimum sentence of 2 years in jail. Sexual interference with a person under 16 years of age, contrary to s. 151 of the Code carries a minimum sentence of 1 year in jail. All offences have maximum penalties of 14 years in jail.

[4] At the time of the alleged offences, the Applicant was 22 years of age. He has no criminal record and was living alone in an apartment on Lafontaine Street in Ottawa. In early June 2015, members of the Ottawa Police conducted a human trafficking investigation. They checked out the local “backpage.com” online advertisements in search of potential criminal activity. One advertisement caught their attention. Notwithstanding the girls depicted in the advertisement appeared to be older than 18 years of age, the advertisement was suspicious to them.

[5] On June 17, 2015, Det. Chris Lavergne contacted the cell phone number associated with the advertisement and through text messaging, he arranged to meet a girl for sexual services. He was instructed to go to the Applicant’s apartment. He attended the apartment with other members of the Ottawa Police. Upon their arrival, a 15-year old female, M.M., answered the door. She was dressed in normal clothing and seemed unaware of any appointment. While the police were at the apartment talking with M.M., the Applicant arrived home from a store carrying a bag with condoms in it.

[6] The police had verbal discussions with M.M. and the Applicant. M.M. told one of the officers she was aged 15 and she had had sex with the Applicant, and they had had discussions about her having sex with clients for money.

[7] This information was conveyed to Det. Lavergne who then placed the Applicant under arrest for “human trafficking under 18.” He was read his rights to counsel and cautioned. The Applicant expressed a desire to call a lawyer. He was then handed over to another officer for transportation to the police station. That officer advised the Applicant that he was under arrest for “human trafficking” and again provided him his rights to counsel. The Applicant stated once more that he wished to speak to a lawyer. The officer put the applicant in touch with Patrick McCann, an experienced criminal lawyer. Following the discussion with Mr. McCann, the Applicant was held in custody.

[8] Following the Applicant’s arrest, M.M. was interviewed on video and told police that she was 15 years old, that she electronically sent the Applicant a picture of herself in a bra and panties, that she lied to the Applicant about her age, that she performed oral sex on the Applicant and had sexual intercourse with him. Based on that information, Det. Lavergne had reasonable and probable grounds to believe the Applicant had committed the offences of sexual interference, invitation to sexual touching and sexual assault.

[9] The next day, June 18, 2015, Det. Lavergne conducted an interview with the Applicant. At no time prior to the interview did Det. Lavergne nor any other police officer advise the Applicant that he was facing criminal charges for sexual offences, specifically the offences of sexual assault, invitation to sexual touching and sexual interference. Despite this fact, the Applicant was questioned at length about his knowledge of M.M.’s age and sexual interactions with her.

[10] The transcript of the interview between the Applicant and Det. Lavergne is 110 pages in length. At page 14, Det. Lavergne states, “So do you know what charges you are facing?” The applicant answers, “You said eh, what’s eh, I forget what you said.” Det. Lavergne states, “Do you want to go over them with me.” The Applicant answers, “human trafficking, something like that?” The Applicant explains, “I have never forced anyone to do nothing that they never want. I’m not that type of person that’s gonna force something, someone to do something that they never want to.” Det. Lavergne states, “But also helping someone do those things is also a criminal offence. Did you know that?” The Applicant answers, “No.”

[11] That is the extent of the information given to the Applicant about the charges he was facing. At no time was he told that he was facing charges of sexual assault, sexual interference or invitation to sexual touching, yet Det. Lavergne continually asked questions relating to those charges throughout the interview.

Issue

[12] The issue respecting the admissibility of the statement made by the Applicant is whether there was a breach of his rights pursuant to section 10 (a) and (b) of the Charter of Rights and Freedoms. Section 10 provides that:

Everyone who has the right on arrest or detention:

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right;…

Analysis

[13] In my opinion, the informational component required by s.10(a) of the Charter was not fulfilled in this case. The answers received as result of questioning relating to sexual assault, sexual interference and invitation to sexual touching must be ruled inadmissible as a result of the breach and do not survive a section 24 analysis.

[14] In R. v. Evans, 1991 98 (SCC), [1991] 1 S.C.R. 869, 63 C.C.C. (3d) 289, McLachlin J. stated at pp. 886-887:

The right to be promptly advised of the reason for one’s detention embodied in s. 10 (a) of the Charter is founded most fundamentally on the notion that one is not obliged to submit to an arrest if one does not know the reasons for it. […] A second aspect of the right lies in its role as an adjunct to the right to counsel conferred by s. 10(b) of the Charter.

[15] In R. v. Black, 1989 75 (SCC), [1989] 2 S.C.R. 138, at p. 152-153, Wilson J, stated:

"[a]n individual, therefore, can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy”. In interpreting s. 10(a) in a purposive manner, regard must be had to the double rationale underlying the right.

[16] In R. v. Sawatsky, (1997) 1997 511 (ON CA), 35 O.R. (3d) 767 Doherty J. A. at p. 776:

"Jeopardy" in this context includes the detained person's risk of self-incrimination. That risk cannot be measured without knowledge of the reason for the detention and the subject matter of the police inquiries.

Knowledge of the purpose of the detention is so important to the informed exercise of the right to counsel that the police are constitutionally required by s. 10(a) of the Charter to promptly inform a detained person of the reasons for her detention. Where there is more than one reason for a detention, they must all be disclosed (authorities omitted). In most cases, disclosure of the reason for detention will also reveal the subject matter about which the police wish to question or otherwise investigate the detained person. Compliance with s. 10(a) of the Charter will, in those cases, provide the necessary information as to both the reason for the detention and the subject matter of the investigation. In other cases, however, the reason for the detention will be different than the subject matter which the police intend to address in their contact with the detainee (authorities omitted). [Emphasis added].

[17] In those cases, the police must inform the detainee of both the reasons for detention and the proposed subject matter of the interview so that the detainee may make an informed decision whether to seek the assistance of counsel. Doherty J.A. explains at p. 777:

If the risk of self-incrimination changes, the right to counsel must be restated so that a detainee can decide in the face of the new risk whether to exercise her right to counsel. The risk may change either because the reason for the detention changes or the focus of the police inquiry changes.

Citing R. v. Evans, Doherty J.A. quotes McLachlin J. at pages 306 and 307:

I do, however affirm, in order to comply with the first of the three duties set out above, [the police duty to inform the detainee of the right to counsel] the police must restate the accused right to counsel where is there is a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence, or a significantly more serious offence than that contemplated at the time of the warning.

At p.777, Doherty J.A. states:

In this passage, McLachlin J. observes that the focus of the police investigation may change either because the offence changes to a significantly more serious one, even though the circumstances under investigation remain the same (authority omitted), or because the investigation turns to a different and unrelated offence (authority omitted). Either change triggers the obligation to restate the detainees s. 10 (b) rights. [Emphasis added]

[18] In R. v. Nguyen, (2008) 2008 ONCA 49, 231 C.C.C. (3d) 541, at para. 21, the Court stated:

Once detained, an individual is at the mercy of the state actors. Thus, in circumstances where the informational component of s. 10 (a) of the Charter is easy to fulfill – as it was in this case – the breach of the obligation to provide that information cannot be considered a trivial matter. We say this because, as the jurisprudence illustrates, the right against self-incrimination is fundamental to the spirt of s. 10 of the Charter.

[19] In this case, it would have been very easy for Det. Lavergne to inform the Applicant that he was facing charges of sexual assault, sexual interference and invitation to sexual touching. The Applicant was not informed that he was being investigated for those offences. As stated earlier, the offence of sexual interference brings a minimum term of imprisonment of 1 year. As the jurisprudence establishes, when the investigation turns to a different offence, this triggers the obligation to restate the detainee’s s. 10(b) rights: Sawatsky, supra.

[20] R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 establishes the test to determine whether to render inadmissible evidence obtained through a breach of a right protected under the Charter. The Court must consider the seriousness of the Charter infringing state conduct, the impact on the Charter-protected interests of the accused and the public’s interests in an adjudication of the merits.

[21] As to the seriousness of the impugned conduct, the failure of the police officers to advise the Applicant of the particular charges he was facing, and therefore of being afforded a right to consult counsel in respect to those charges, undermined his right to make a meaningful and informed choice whether to speak to Det. Lavergne concerning those offences. It undermined his right to silence, and protection against testimonial self-incrimination, both of which are protected under the Charter (sections 7 and 13 respectively). In my opinion, this was a serious breach of the rights of the Applicant and the first criterion of the Grant analysis is met.

[22] Considering the impact on the Charter-protected interests of the Applicant, I am persuaded that the impact was significant. The accused was highly emotional throughout the interview with Det. Lavergne and was constantly in tears. He had no idea that there was such an offence as statutory sexual assault wherein consent was irrelevant. Had he been afforded the opportunity to consult counsel on the offences of sexual interference, he might have chosen to remain silent. He was deprived of his right to choose.

[23] As to the public’s interest in an adjudication on the merits, the exclusion of the Applicant’s questions and answers respecting the offences of sexual assault, sexual interference and invitation to sexual touching will not be gutted by the exclusion of his questions and answers. The four women involved in these charges are all available for examination and cross-examination with respect to their relationship to the accused and with respect to his knowledge or lack thereof respecting their ages, and the admissibility of their evidence is not in dispute. Given that the Crown possesses other evidence which could allow for a trial on the merits, the exclusion of the Applicant’s statement to police would not bring the administration of justice into disrepute.

[24] For these reasons, the following portions of the statement of the applicant shall be excluded:

• At page 8 of the statement from Det. Lavergne’s questions “and then what happened” to page 9 where Det. Lavergne states “aha.”

• At page 13 where Det. Lavergne states, “ok? Your, your, your drug charge that you got a few”, to the applicants statement “but that’s not (sigh) that’s not even.”

• At page 39 from Det. Lavergne’s question “ok and then what?” to page 42 where the applicant states, “oh my God.”

• At page 59 from Det. Lavergne’s statement “so what, what if I told you that when I talked to M.” to the bottom of page 61 where it is noted that the applicant “sniffs”.

• At page 69 from Det. Lavergne’s statement “well we’re” to and including all of page 72.

• At page 82 from Det. Lavergne’s statement “ok” to and including Det. Lavergne’s statement 1/3 of the page lower where he states once again “ok.”

• At page 98 from Det. Lavergne’s statement “ok, Eh M. eh went, went to the hospital last night” to and including all of page 103.

• At page 106, from Det. Lavergne’s statement “Ok so this form, every time someone is charged with sexual offence” to and including page 108 where Det. Lavergne states “but you know what?

C. McKinnon J.

Released: July 27, 2017

CITATION: R. v. Joseph, 2017 ONSC 4566

COURT FILE NO.: 15-SA5074

DATE: 2017/07/27

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Respondent

– and –

STEEVENSON JOSEPH

Applicant

Decision on application to exclude the statement of the accused

C. McKinnon J.

Released: July 27, 2017