Citation: R. v. Humberto Dapena Huerta, 2017 ONSC 5309

NEWMARKET COURT FILE NO.: CR-15-1279

DATE: 20170920

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

HUMBERTO DAPENA-HUERTA

Defendant

COUNSEL:

A. Linds, for the Crown

M. Rieger, for the Defendant

HEARD: July 17-21 and 26, 2017

RULING ON ADMISSIBILITY OF STATEMENT

HEALEY J.:

NATURE OF THE APPLICATIONS

[1] The Crown seeks a ruling permitting it to rely on the statement Mr. Dapena-Huerta made to an officer on the date of his arrest. The defence seeks a ruling that the statement was obtained in a manner that breached one or more of Mr. Dapena-Huerta’s rights under ss. 7, 10(a) and 10(b) of the Charter and an order excluding the statement pursuant to s. 24(2). With the parties’ consent these applications proceeded by way of a blended voir dire.

[2] For the reasons that follow, I conclude that the police violated Mr. Dapena-Huerta’s Charter-protected rights in this case. Specifically, they deprived him of any meaningful choice about whether to speak to the police. This deprivation was due to the fact that he was not fully informed of the reasons for his detention from the outset or the fact that he was being questioned as a suspect in other similar crimes. Accordingly, at the time he spoke with duty counsel he was not adequately informed about the potential jeopardy he faced. Further, when the interviewing officer began asking him about other incidents the police were investigating, he was not provided with the opportunity to re-consult counsel. In short, at no time following his arrest did he have the information required to obtain sufficiently meaningful advice to enable him to make an informed choice about whether to exercise his right to silence.

[3] One basis for Mr. Dapena-Huerta’s application is his assertion that his ability to understand English is limited. His first language is Spanish. Due to the language barrier, he states that his rights were violated because he did not understand the reasons for his arrest, his right to counsel or the caution police gave him at the time of his arrest. One of the officers assisting in the arrest undertook to translate into Spanish, but it is Mr. Dapena-Huerta’s position that the officer’s Spanish language abilities were not of sufficient caliber to allow her to make herself understood. Similarly, he asserts that his ss. 10(b) and 7 rights were violated because the duty counsel he spoke to had insufficient Spanish language abilities, rendering counsel’s advice incomprehensible to Mr. Dapena‑Huerta. To add to his difficulties, the police did not inquire whether he was satisfied with that experience before beginning his interrogation.

[4] I conclude that it is not necessary to decide whether to accept or reject Mr. Dapena‑Huerta’s allegations regarding his comprehension. Even if he were a detainee who possessed a strong mastery of the English language on the date of his arrest, a conclusion not possible on the evidence, he was deprived of the ability to make an informed choice about whether to share information with the police because they failed to fully inform him of the charges and potential charges facing him. Even if he understood the information provided to him in Spanish, the same holds true.

[5] Because of the conclusions I reach with respect to his Charter application, it is necessary to dismiss the Crown’s application for a ruling on voluntariness. Voluntariness is precluded by a finding that s. 7 has been breached. As R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, held, if an accused is able to show on a balance of probabilities that the statement was obtained in violation of his constitutional right to remain silent, the Crown will be unable to prove voluntariness beyond a reasonable doubt: paras. 8, 37.

THE CHARGES

[6] Mr. Dapena-Huerta stands charged with the following eight offences:

• March 10, 2014, criminal harassment (complainant NF); • March 1–31, 2014, sexual assault and sexual interference (complainant CC); • March 26, 2014, sexual assault (complainant JC); • April 2, 2014, sexual assault (complainant CO); • February 1–March 31, 2014, criminal harassment (complainant KD); • September 23, 2014, sexual assault and sexual interference (complainant JA).

[7] He was initially arrested on October 10, 2014 at the outset of Thanksgiving weekend. On that date he was charged with the most recent offences, alleged to have occurred on September 23, 2014. Further charges were laid against him in February 2015. The latter charges were in respect of the earlier offences, alleged to have occurred in the months of February to April, 2014.

THE EVIDENCE

[8] Four officers from the York Regional Police Service testified in respect of these applications: DC Leitch, PC Moskaluk, Det. Atkins and Det. Stoby. Mr. Dapena-Huerta testified only with respect to his own Charter application.

The Richmond Hill Attacks

[9] In the early spring of 2014 a series of attacks occurred in parks and wooded areas in Richmond Hill, primarily against young women. A composite drawing of the attacker was created in April, 2014. Throughout the spring and summer of 2014 the police did not identify any suspects or lay any charges. The lead investigator of those cases was DC French, working out of the Special Victims Unit of the York Regional Police Service.

[10] On September 23, 2014 a teenaged female reported to police that she was attacked in the morning on a pathway while walking to school in the area of Kersey Crescent and Harding Boulevard in Richmond Hill. The complainant described the attacker as a white male in his 50s, 5'10" in height, medium build, wearing a black hoodie, denim jeans, brown dress shoes, aviator style sunglasses, and bearing deep pores on his cheeks. He approached her from the opposite direction, grabbed her, pulled her to the ground, and ran off when she screamed. On September 29, 2014 the victim assisted with the preparation of a second composite drawing of the attacker.

[11] DC Leitch, also assigned to the Special Victims Unit, became the lead investigator on the case arising out of the September 23 incident. DC Leitch had not been working in the unit at the time that the spring incidents took place and was only partially informed about them. In the first two weeks following the September incident, DC French was not present in the office to be consulted about those earlier cases. DC Leitch testified that the only step she took to inform herself about the spring incidents was to watch one of the victim’s videotaped statements on September 25, 2014. At that time she felt that these were separate investigations, but was open to the possibility that they were related.

[12] The evidence heard on these applications from officers Leitch, Atkins and Stobie, the latter two of whom were also members of the Special Victims Unit at that time, leads the court to conclude that it was common ground within that unit that the spring occurrences might be linked to the September incident. Sgt. Laidlaw, DC Leitch’s direct supervisor, told her to keep an open mind about the possibility that the incidents could all be related. Following the September 23 attack, the police conducted an investigatory search through crime analysis involving key words arising from the spring incidents, such as “sorry” and “pockmarked face”. Det. Stoby’s evidence was particularly decisive on this point. He was involved in the investigation into the September 23 attack. On the day of the attack he attended a briefing with several officers, including Sgt. Laidlaw and DC French. Although he made no notes of what was said, he recalled that they discussed the strategy of the investigation and the belief that this was thought to be another incident of the "Richmond Hill Tackler", a phrase coined by DC French.

[13] During the first two weeks of the investigation into the September 23 attack, the police questioned several other individuals as persons of interest. None of these individuals became suspects. One group of individuals that police targeted were those living in the area who were named on the Sex Offender Registry. As earlier indicated, composite sketches were made in both the spring and fall. For at least the first six days of the investigation it was the composite drawing prepared during the spring that was being used to draw potential comparisons between these individuals and the attacker.

[14] On October 7, 2014 DC Leitch had a meeting with Sgt. Laidlaw and DC French to review the investigations. She explained that the police try to have a face-to-face meeting when there is an unknown suspect and similar occurrences in order to, in her words, “be open to the possibility that the cases could be connected”. At that meeting she was told that her case was being grouped with DC French’s cases from the spring. All of these cases were amalgamated under a new master file number, with DC French being the lead investigator. She was told that this was occurring because the September incident shared similarities with the spring attacks: the incidents had occurred in parks or wooded areas in Richmond Hill, the complainants gave similar descriptions of the suspect, and the attacker carried out similar acts of grabbing or tackling the victim to the ground and assaulting them with his hands in a sexual manner. In some instances the females were followed and stalked.

[15] Throughout the balance of her investigation, to the date of Mr. Dapena-Huerta’s arrest, DC Leitch did not receive any further details about the spring attacks. DC Leitch believed that she received the sketch made in the springtime once the files were amalgamated. However, Det. Stoby, who had a strong grasp of the investigative history, recalled that DCs French and Leitch both decided that the earlier one was more reliable, and could not recall with accuracy whether the later sketch was ever used during the investigation.

[16] On balance, the foregoing evidence leads to the obvious conclusion that the police were seriously considering that a single individual may be responsible for all of the incidents in question.

The Investigation of the September 23 Incident

[17] A series of tips, police observations and investigations led the police to Mr. Dapena‑Huerta. One of those tips came on October 9. The police received information that a male driving a black car had been watching females in the area of St. Theresa of Lisieux Catholic High School for two days in a row. He left when a female appeared to notice him, but not before she recorded the vehicle’s licence plate and observed that the driver had a pockmarked complexion. The plate indicated that the registered owner of the vehicle, a Honda Civic, had the surname Machado. Machado immediately became a suspect in the September 23 incident. DC French, who had examined Machado’s Ministry of Transportation photograph, told DC Leitch that Machado was a close match to both of the composites. Although only the composite sketches made in September was made an exhibit, I conclude from this evidence that the sketches bore some similarity to one another. On October 9, DC French ordered Machado’s arrest.

[18] On the same date, further investigation showed that there were four drivers associated with the vehicle in question. One of those drivers was Mr. Dapena-Huerta. The investigators also learned that the vehicle was not located in the parking lot at Machado's place of work. Additionally, on the same day officers observed an individual matching the description of the September 23 attacker briefly enter and leave the wooded area in the vicinity of St. Theresa’s high school. Very close in time, two personnel from the school reported seeing a male of the same description in the area of the school, driving a Honda Civic with the licence plate of interest. Another student provided information that she had seen the male at the curb in a vehicle with the same licence plate. She said the male was wearing brown dress shoes and had salt-and-pepper coloured hair.

[19] By 5:00 p.m. on October 9 the police had ascertained through photographs that Mr. Dapena‑Huerta looked similar to Mr. Machado. DC Leitch recalled having a conversation with Dets. Stoby and Atkins that both Mr. Machado and Mr. Dapena-Huerta looked like the man pictured in the two composites. Records showed that Mr. Dapena‑Huerta had been the driver of the vehicle in question when the police had most recently stopped it for a traffic violation. That same evening, information was received that the vehicle had been located at Pearl Vision. It had then been driven to 209 Axminster Drive in Richmond Hill, where it remained until the next morning. Investigation at Pearl Vision indicated that a customer by the name of Dapena-Huerta had been in the previous evening.

[20] DC French was off duty for a few days after October 9. DC Leitch became the acting officer in charge of the investigation during his time off.

[21] The police interviewed Machado at his workplace on October 10. DC Leitch noted upon meeting him that his hair was black and his skin was pockmarked only at the jawline. She learned from Mr. Machado that his brother-in-law, Mr. Dapena-Huerta, was the primary driver of the car and that he lived at 209 Axminster Drive. He provided phone numbers and employment information for his brother-in-law and told officers that his brother-in-law could be located at work.

The Arrest

[22] Mr. Dapena-Huerta was just exiting the building when DC Leitch arrived at his workplace on October 10 at approximately 2:57 p.m. Dets. Atkins and Stoby, who at that time were assisting in the investigation of the September occurrence, arrived seconds later. Fortuitously, Det. Atkins grew up in a household in which Spanish was spoken. Although this court understands that her mastery of the language is an issue for the defence, for reasons already explained I find it unnecessary to determine whether Mr. Dapena-Huerta is being truthful in stating that he did not understand her.

[23] DC Leitch approached Mr. Dapena-Huerta, introduced herself and confirmed that his name was Humberto. Through translation DC Leitch told him they wanted to talk to him in private. He led them to a lunchroom inside his place of work.

[24] Det. Stoby recalled that while they were making their way to the lunchroom, DC Leitch indicated to him that they had grounds for arrest. DC Leitch felt that Mr. Dapena‑Huerta’s appearance was consistent with the sketch. At the time he understood that she was referencing the sketch prepared in the spring.

[25] Once in the lunchroom, DC Leitch immediately told Mr. Dapena-Huerta that he was under arrest for sexual assault. Det. Atkins followed by telling him the same thing in Spanish. DC Leitch testified that she was arresting him for the incident that occurred in September, although she did not communicate that date to him. She also testified that she did not have enough knowledge about the spring incidents to arrest him for those offences.

[26] DC Leitch then gave Mr. Dapena-Huerta the standard rights to counsel and caution. As she did this, Det. Atkins translated what she said into Spanish. Mr. Depena-Huerta was given a secondary caution by the transport officer once he was placed in the back of a police cruiser; Det. Aitkins also translated this caution.

[27] Once the booking process was over, Mr. Dapena-Huerta was taken to an interview room at approximately 3:55 p.m. Det. Atkins called the MCIS interpreter service and requested a Spanish interpreter. In the meantime PC Moskoluk had been tasked with contacting a Spanish-speaking duty counsel. She told the lawyer with whom she spoke that the police had a Spanish-speaking accused whom they had arrested for sexual assault and who wished to speak to a lawyer. Mr. Dapena-Huerta left the interview room at 4:05 p.m. to speak with the duty counsel and returned at 4:12 p.m. He then waited in the interview room until the interpreter finally arrived. The interpreter and DC Leitch entered the interview room at 6:45 p.m.

[28] Up to that point the police had never revealed to Mr. Dapena-Huerta that the complainant was less than 16 years of age. The police also had not mentioned the offences of sexual interference or criminal harassment. Following the end of the interview, the police charged Mr. Dapena-Huerta with those offences in addition to sexual assault.

The Interview

At the outset of the interview DC Leitch reiterated to Mr. Dapena-Huerta that he was under arrest for sexual assault. She confirmed that she had told him about his right to talk to a lawyer and that this had now occurred. She also reiterated that he did not have to talk to her and that if any officer had told him otherwise, such a statement was untrue.

[29] DC Leitch then proceeded to obtain information from Mr. Dapena-Huerta in a friendly, conversational tone. Her demeanor did not change throughout the interview. Shortly after she began, Mr. Dapena-Huerta asserted his right to silence, as follows:

A: I spoke to my lawyer, the one I spoke over the phone. Uh, he said that without his presence not to say anything. SL: Okay. A: Okay. DL: Okay. So I - I just want to go through what took us - what took us here, today though. A: Mm-hm.

[30] And so the questioning continued with no further assertion by Mr. Dapena-Huerta of his right to stay silent.

[31] Before Mr. Dapena-Huerta made any inculpatory statement, DC Leitch repeated on three separate occasions during the interview that he had been arrested for sexual assault. What she had not yet revealed to Mr. Dapena-Huerta was the complainant’s age, or that he may also be a person of interest or suspect in more than one sexual assault. The police also had not told him that he was under arrest for the additional offences of criminal harassment and sexual interference, or that the police believed there were grounds to charge him with those additional offences.

[32] By 8:20 p.m. DC Leitch had still not been able to obtain any admissions, but Mr. Dapena‑Heurta had been talking to her and responding to all of her questions. The officer then said:

DL: I want to give you the opportunity, like I said, to - to explain your side of the story. You know that there's cameras everywhere nowadays. Why are we here? You know why we are here. I know why we're here. But I don't know what went on up there with you that day. And was this the only time, or - or were there other times?

[33] This resulted in a denial from Mr. Dapena-Huerta that anything had happened and the interview continued.

[34] DC Leitch eventually returned the conversation to the topic of two girls that Mr. Dapena‑Huerta had told her he had seen on a trail in the bush about three weeks earlier. He had described them as "… from the school, 17, 16, very young." It was at that point, at 8:22 p.m., that the officer proposed to Mr. Dapena-Huerta that it was only one girl on the trail and that he grabbed her around her waist and tried to force her to the ground. This was the first time that the specifics of the offence and, notably, the age bracket of the complainant, had risen to the fore.

[35] Approximately 17 minutes later, Mr. Dapena-Huerta admitted that the scenario suggested by the officer had occurred on one occasion.

[36] The interview continued because the officer, very obviously, wanted to obtain admissions in relation to the spring incidents. At 8:45 p.m. DC Leitch told him that she wanted to talk about the "other times". Moments later she stated:

DC: “…I know about March, I know about April. Tell me about what happened back then. Pick one - just pick one of the times. Okay. We'll just go one at a time".

[37] Despite moving into this aspect of the interrogation, DC Leitch did not inform Mr. Dapena-Huerta that he was considered a suspect in these other incidents. For reasons I will explain, I conclude that even before his arrest Mr. Dapena-Huerta was a suspect in those spring incidents. Needless to say, his status as a suspect only solidified from the point he admitted culpability for the latest incident.

[38] Although embarking on this line of questioning, DC Leitch did not consider that she should further caution Mr. Dapena-Huerta or give him another opportunity to speak with duty counsel. In her testimony she explained that if he had made a statement about any of these other incidents under investigation, she believed that would have triggered a change in his jeopardy. She would then have arrested him, cautioned him and again offered him the opportunity to speak with duty counsel.

[39] DC Leitch provided two explanations for pursuing the line of questioning regarding the “other incidents”. First, in her experience, offenders who commit the type of offence that Mr. Dapena-Huerta confessed to would probably have committed such an offence more than once. Second, she was probing his culpability for the spring incidents in particular. DC Leitch was a forthright witness and I accept that her questioning was motivated by both of these reasons. There can be no debate that following Mr. Dapena‑Huerta’s admission, her questions focused very specifically on the spring incidents. She offered descriptions of what was alleged to have occurred in order to prompt a response. She proposed that she knew of “maybe four other times that you’ve done this,” and stated “she’s not the only teenager that you tried this with.” Mr. Dapena‑Huerta steadfastly denied his involvement in any incident other than the one to which he had already admitted.

[40] DC Leitch had no further significant involvement with this case following the Thanksgiving weekend that Mr. Dapena-Huerta spent in custody. DC French continued to be the officer in charge. It was not until January, 2015 that Mr. Dapena-Huerta was charged with additional offences arising from the spring incidents.

THE LAW

The Right to Silence: Section 7

[41] The right of an accused person to remain silent in the face of police questioning is a longstanding tenet of our legal system now enshrined in the Charter. The interplay between s. 7 and s. 10(b) of the Charter is that the right to legal advice from counsel upon detention ensures that the suspect understands that they are entitled to remain silent in the face of police questioning and, further, are able to make an informed choice about whether to speak to the authorities: R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151 at p. 176. The duty of the authorities to ensure that the person is advised of his or her right to consult counsel includes a duty to permit him or her to do so without delay as set out in s. 10(b).

[42] State conduct that effectively deprives the suspect of the right to choose whether to speak to the authorities will undermine the right to silence: R. v. Hebert, at pp. 176, 181. In R. v. Hebert McLachlin, J. (as she then was) provided direction to the courts as follows, at p. 181:

The common law rules related to the right to silence suggest that the scope of the right in the pre-trial detention period must be based on the fundamental concept of the suspect's right to choose whether to speak to the authorities or remain silent. Any doubt on the question is resolved by consideration of related rights protected by the Charter, by the Charter's approach to the question of improperly obtained evidence, and by the fundamental purpose of the right to silence and related procedural guarantees. In keeping with the approach inaugurated by the Charter, our courts must adopt an approach to pre-trial interrogation which emphasizes the right of the detained person to make a meaningful choice and permits the rejection of statements which have been obtained unfairly in circumstances that violate that right of choice. [Emphasis added.]

The Right to be Informed of the Offence: Section 10(a)

[43] In order to make a meaningful choice the reasons for the detention must be provided to the detainee. This is in part because the advice received by a suspect from counsel will be directly related to the information provided to that lawyer. Being able to tell a lawyer the reason for one's arrest and the charges one faces will be fundamental to the nature and the type of advice received. That advice will be tailored to the situation as the detainee and his lawyer then understand it: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 51.

[44] Accordingly, s. 10(a) of the Charter, which gives every citizen the right on arrest or detention to be informed promptly of the reasons therefor, is one of the specific procedural guarantees that assists in safeguarding the rights enshrined in both s.10(b) and s. 7. When considering whether there has been a breach of s. 10(a) of the Charter, the question is whether what the detainee was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision about whether or not to exercise his right to consult counsel: R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at p. 888. What the detainee knows about the reason for his detention or arrest before exercising his right to counsel is paramount to this analysis. In R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, at pp. 152-53, Wilson J. stated for the court, “An individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy."

[45] The Ontario Court of Appeal’s decision in R. v. Eakin (2000), 2000 CanLII 2052 (ON CA), 132 O.A.C. 164, appears to endorse that the circumstances of the case dictate whether the information provided to a detainee was sufficient to enable them to make decisions about how to proceed in the face of detention. In that case the issue was whether Mr. Eakin’s waiver of counsel was invalid because he was not given sufficient information to make an informed decision. Although he was told that he was under arrest for sexual assault, Mr. Eakin was not told the circumstances giving rise to the charge. He argued that it was only when he learned these circumstances during his interview that he was in a position to decide whether to exercise his right to counsel. At para. 11 Charron, J.A. stated:

I see no merit to the appellant’s submission on this point. In my view, the trial judge was correct in finding that the appellant was sufficiently informed of the reason for his arrest to enable him to make an informed decision whether he wished to exercise his right to counsel. Having been informed that he was under arrest for sexual assault, the appellant realized that he was arrested for a serious offence. The trial judge found him to be sophisticated, articulate, and very familiar with the system. As stated in R. v. Smith, [1991] S.C.J. No. 243 at paragraph 27,

“the degree of awareness which the accused may be reasonably assumed to possess in all the circumstances may play a role in determining whether what the police said was sufficient to bring home to him the extent of his jeopardy and the consequences of declining his right to counsel.”

[46] The present case also raises the issue of whether the police have a duty to tell a person that they are a suspect in offences other than the one(s) they were arrested or detained for. This question was answered in the decision of R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145. In Borden a warrant was issued on December 2, 1989 for the accused’s arrest in relation to a sexual assault occurring at a motel. The complainant had seen the accused on previous occasions and was able to identify him from a photo line-up. Two months earlier, an elderly woman had been sexually assaulted in a senior citizens’ home. In the course of that latter investigation, the police seized evidence of the attacker’s DNA on a blanket. Even at the time of that earlier assault the police suspected that Borden might be involved, as he was staying nearby.

[47] On December 3, 1989 Borden was interviewed by two officers, who told him from the outset that he was suspected by the police to be responsible for the sexual assault at the motel in December. He made an oral exculpatory statement. While he was still detained, the officers discussed among themselves whether to request a blood sample. The officers testified that, while the sample could have some usefulness in their investigation of the motel offence, they wanted it primarily for their investigation of the October assault on the elderly woman, in order to compare the blood with the DNA found on her comforter.

[48] Borden was given a consent form to permit the police to take a sample of his blood for the purposes “relating to their investigations”, which he signed. The use of the plural “investigations” was deliberate. The officers acknowledged that the respondent was given no indication, other than the use of the word “investigations” in the consent form, that the blood was also being sought for possible use in the investigation of the October assault. Following analysis of the blood sample Borden was charged with sexual assault in relation to the October attack.

[49] A voir dire was held before the trial judge to determine whether the results of the DNA analysis should be admitted into evidence. The trial judge declined to find an infringement of s. 10(a) or 10(b), although found that there had been a “technical” infringement of Borden’s rights under s. 8 of the Charter. The majority of the Nova Scotia Court of Appeal found that there had been an infringement of his s. 8, 10(a) and 10(b) Charter rights.

[50] On appeal to the Supreme Court of Canada, the non-disclosure on the part of the police of their dual purpose in seizing Borden’s blood formed the basis for his claim that his s. 10(a) and 10(b) rights were infringed. The Crown argued that these rights were not triggered in that Borden was never arrested or detained in relation to the October sexual assault. Instead, throughout the entire time that he was in police custody he was detained for the sexual assault at the motel. This mirrors the position of the Crown in the case before me, as it was argued that the entire basis for Mr. Dapena-Huerta’s arrest and detention on October 10 was the incident of September 23. The fact that he was not charged with the offences from the springtime until the following year, Mr. Linds contends, supports a finding that he was never detained in relation to those latter incidents.

[51] The Supreme Court rejected the Crown’s argument, finding that the police officers admitted that their predominant intention in taking the blood sample was the investigation of the assault at the senior citizens’ residence in October. The taking of the blood was provided consensually in connection with the motel offence, but represented a seizure in respect of the October offence. Justice Iacobucci, writing for the majority, stated that “once matters reached a point at which the officers were investigating two offences, the respondent was detained in relation to both of them, and had the right to be informed of this dual investigative intention”: para. 43. Because he was not informed that his detention was also in relation to the October offence, his right under s. 10(a) to be informed of the reasons for his detention was violated, and the seizure of his blood unlawful. Although the police had initially facilitated his rights to counsel, he should have nonetheless have been reinformed of his right to counsel once the nature of the investigation expanded to include the October offence, as Borden was given no indication that the police investigations were aimed at any offence other than the one for which he had been arrested: paras. 43-45.

[52] In concurring reasons, McLachlin, J. (as she then was) reiterated the test for when a detainee’s s. 10(a) and (b) rights are triggered during an investigation, as set out in R. v. Evans. The test is whether the new matter has progressed beyond the stage of an “exploratory investigation”. At para. 57 she confirmed that as long as the investigation of the detainee’s involvement in the other offence has not passed the exploratory stage, there is no obligation under the Charter for the police to tell the accused that the evidence he or she gives on the offence for which he or she is being held may be used in investigating the other offences. However “once the matter has passed the exploratory stage and the detainee is being held as a serious suspect, the matter is different.”

[53] The test for whether a person is a suspect, as opposed to a person of interest, is articulated in R. v. Morrison, 2000 CarswellOnt 5811 (S.C.J.), at para. 50:

A person is a "suspect” when, objectively viewed, the information collected during an investigation tends to implicate him/her in the crime. It is an objective test, not a subjective one, that is to be applied to the totality of the information. An objective test better cares for the public interest in imposing duties on interrogating officers when the coercive power of the state is brought to bear on an individual in the context of a custodial interrogation. The frailty of the information collected during the investigation, if any, is to be considered in assessing its tendency to implicate a person. See Chartier v. Attorney General Quebec (1979), 1979 CanLII 17 (SCC), 9 C.R. (3d) 97 (S.C.C.) for an analogous principle in the context of the present s. 495 of the Code. The test is based upon information as opposed to evidence. It is to be distinguished from probable cause and prima facie proof. More often than not a competent officer diligently considering the information known to him/her will form an actual suspicion where there are objective grounds for doing so. A suspicion is to be distinguished from a belief that a person committed a crime.

[54] The test in Morrision has been in cited and applied in R. v. Randall, 3003 CarswellOnt 690 (S.C.J.) at para. 19, the court noting that the timing of a witness becoming a suspect who should be afforded his rights is a question of fact in each case. Such a fact specific inquiry was also undertaken by Watt J. in R. v. Worrall, 2002 CarswellOnt 5171 (S.C.J.) at para. 104, where he concluded that the information available would have alerted any reasonably competent investigator to the realistic prospect that the victim’s death may have been associated with the individual being questioned. In R. v. Carroll, 2009 CarswellOnt 5804 (S.C.J.), at para. 71, Poupore, J. cited a later test set out in R. v. D. (A.) 2003 CarswellOnt 4275 (S.C.J.) and sensibly concluded that “once there is a realistic prospect – realistic because based on evidence and not speculation – that the person with whom authorities are speaking may have been associated with the commission of the crime under investigation, presuming that a crime is under investigation, then the person should be told about the right to silence”.

[55] Both R. v. D. (A.), at para. 69, and R. v. Carroll (2009), 71 C.R. (6th) 169 (S.C.J.), at para. 70, are decisions in which the authorities were reviewed to reach the conclusion that police should caution a person about their right to silence when he or she becomes a suspect if they wish to question that person about an offence: para. 69.

[56] The authorities are clear, however, that whether or not a person is a suspect, the absence of a caution is not determinative on a voluntariness inquiry, but simply a factor to be considered: R. v. Singh, 2007 SCC 48, at para. 31; R. v. Pearson, 2017 CarswellOnt 7385 (C.A.), at para. 19.

[57] As R. v. Borden makes clear, such a suspect should also be told of the crime in relation to which he or she is being questioned, and informed of his right to counsel, or reinformed as the case may be. Section 10(a) will be breached when objective facts establish that the person is unaware that he or she is under investigation as a suspect in a crime or crimes, and the police question that person without informing them of their status as a suspect.

The Duty to Provide Opportunity for Further Legal Consultation: Section 10(b)

[58] The duty to give the detainee information about the reasons for his or her detention does not have to be carried out by the police more than once unless the reasons for the detention also change: R. v. Evans, at p. 892; R. v. Borden, at paras. 43-45.

[59] The purpose of s. 10(b) within the context of a custodial interrogation is to support the detainee's right to choose whether to cooperate with the police investigation by giving him access to legal advice on the situation he is facing: Sinclair, at para. 32. It only stands to reason that where that situation changes, further legal advice may be warranted to uphold the rights protected under s. 10(b) and s. 7 of the Charter.

[60] In R. v. Sinclair, the court addressed the question of when a detainee should be given the opportunity to re-consult with counsel. The court listed three circumstances where a second consultation with counsel is required, noting that the categories are not closed. These circumstances are 1) where non-routine procedures involving the detainee are proposed, such as participating in a lineup or submitting to a polygraph; 2) where the detainee faces a change in jeopardy, in order to obtain advice on the new situation; and 3) where the authorities have reason to question whether the detainee truly understands his s. 10(b) right, or where police conduct undermines the legal advice that the detainee receives: at paras. 50-52 and 54.

[61] The court in Sinclair concluded that the implementational duty of the police under s. 10(b) includes an obligation to provide a reasonable opportunity to re-consult with counsel where a change of circumstances makes this necessary to fulfill the purpose of s. 10(b). This change of circumstances must be objectively observable in order to trigger additional implementational duties for the police: at para. 55. Accordingly, the failure to provide an additional opportunity to consult counsel will only constitute a breach of s. 10(b) 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: at para. 57.

ANALYSIS

[62] Mr. Dapena-Huerta’s right to be advised of the reason for his arrest or detention was breached by two separate omissions, and, accordingly, his right to obtain meaningful legal advice was wholly jeopardized.

[63] From the outset he was not told that he was under arrest for sexual interference. He was also not told that he was under arrest for criminal harassment. While this latter charge was subsequently withdrawn, both of these additional offences, had Mr. Dapena-Huerta been advised of them, would have been important information to have at the time that he spoke with duty counsel. It was not until well into the interview that there was any suggestion that the he was being accused of a sexual offence involving a young person. The age of the complainant is important and gives rise to additional jeopardy because the mandatory minimum sentence of one year applies and the complainant’s young age is an aggravating factor on sentencing.

[64] Although Crown counsel argued that the legal advice given to Mr. Dapena‑Huerta by duty counsel would not have changed even if the age of the complainant or the charges of sexual interference and criminal harassment had been disclosed to Mr. Dapena-Huerta from the outset, this is speculation. There is no one-size-fits-all conversation between a detainee and a lawyer. A detainee properly informed by counsel may decide to provide information with respect to some aspects of the interrogation and not others. This decision may shift depending on the topics raised. If, hypothetically, Mr. Dapena-Huerta had been told that he was a suspect in incidents occurring in March through April but was out of the country during that time period, he may choose to speak at length to the police about his alibi. As stated in R. v. Badgerow, 2008 ONCA 605, 240 O.A.C. 216, at para. 50, “The right to seek advice from counsel of choice on arrest or detention is not limited to receiving perfunctory advice to keep quiet."

[65] This is not the same scenario that existed in R. v. Eakin. First, Mr. Dapena-Huerta had only been in Canada for two years at the time of his arrest, and there is no evidence that he is “very familiar with the system.” There is evidence that he has no legal training and that he requires Spanish translation for some exchanges. He is well educated, having attended university for six years in Cuba and graduating as a mechanical engineer. Being told that he was under arrest for sexual assault may have informed him that this was a serious offence, but it does not automatically carry the same gravity as a charge of sexual interference. This is a fact that would be known to counsel, but not readily apparent to a person in Mr. Dapena-Huerta’s position. Similarly, the true seriousness of his jeopardy was masked by the fact that DC Leitch did not tell him that he was being interviewed as a suspect in other similar offences, as discussed below.

[66] The second aspect of the violation of Mr. Dapena-Huerta’s s. 10(a) right occurred when DC Leitch failed to immediately advise him that he was also a suspect in the other incidents. The officer testified that she did not believe that she had sufficient information to arrest him for those incidents. She did not deny, however, that she remained open to the possibility that one individual was responsible for all attacks. Objectively viewed, the information available to DC Leitch at the time of Mr. Dapena-Huerta’s arrest was sufficient to alert her to the prospect that he may have carried out the attacks in the springtime. By that point in the investigation it was not groundless speculation to consider that he may be implicated in those crimes. The objective information before her at the time of arrest was as follows:

1. The two composite sketches looked similar;
2. All but one of the victims was a teenaged female. The exception may have been a woman employed as a nanny although her age was not given in evidence;
3. All attacks had occurred in parks or wooded areas;
4. All attacks occurred in Richmond Hill;
5. The complainants gave similar descriptions of the suspect;
6. The attacker carried out similar acts of grabbing or tackling the victim to the ground and assaulting them with his hands in a sexual manner;
7. The investigations from March-April and September had been amalgamated into one file because they were considered to be linked;
8. One detective, DC French, was assigned to be the lead officer in charge of the amalgamated file;
9. Mr. Dapena-Huerta matched the description given by the victim targeted on September 23;
10. He matched the earlier composite sketch and possibly both sketches;
11. He drove the vehicle bearing the description and licence plate, identified by several witnesses who saw it and a person matching his likeness in the days following September 23.

[67] Considered in its totality, the information known to the police at the time of the arrest tended to implicate Mr. Dapena-Huerta in the attacks that occurred in the spring. Added to this was the meeting held on October 2 involving DCs French and Leitch. After this meeting, there can be no debate that these two primary decision makers believed that there was a significant possibility that the incidents involved the same attacker.

[68] Even if I am incorrect and Mr. Dapena-Huerta was not a suspect in the spring incidents at the outset, Mr. Dapena-Huerta’s jeopardy changed when DC Leitch began questioning him with regard to his possible involvement in the spring incidents. Following his admission, he was a clear suspect with respect to the spring incidents. At that point, if not before, he was being detained for questioning about the earlier incidents. Any doubt that he was being specifically interrogated about grabbing, watching and following the complainants from the spring incidents, is dispelled by the fact that DC Leitch began to describe the events complained of on March 10, 2014, March 26, 2014, April 3, 2014, April 14, 2014 and April 17, 2014. These additional incidents had the cumulative effect of painting a portrait of a serial stalker and attacker of teenaged girls. This was not the situation that was presented to Mr. Dapena-Huerta or the duty counsel over two hours earlier, both having been told that he was facing only a charge of sexual assault.

[69] There was no way in this case for Mr. Dapena-Huerta to know generally of the factual underpinnings of the case against him until they were put to him by DC Leitch when she began to question him about the earlier incidents. The scenario here is one of the objectively identifiable situations requiring additional legal consultation that Binnie, J. identified in his dissenting judgment in Sinclair, at para. 106:“Whether an issue of a legal nature has arisen in the course of the interrogation, e.g. if the police bring forward "similar fact" occurrences allegedly involving the detainee”. As Binnie, J. reasoned, this may be a situation in which the detainee might legitimately want to understand how a response to questions on those collateral events might impact additional liability on the crime charged. Obviously, having this knowledge from the outset might have impacted on Mr. Dapena-Huerta’s decision to make any admission at all.

[70] This is not a case of the police just gradually revealing further evidence in their possession about the incident for which Mr. Dapena-Huerta was under arrest. Such a course of events would not likely trigger the obligation for the police to cease questioning to provide further caution and rights to counsel. An example of such a case is found in R. v. Greenhalgh, 2010 BCSC 1607, 223 C.R.R. (2d) 283, where the detainee was given precise information about the date and place of the offence. In Greenhalgh the police informed the accused that he was being arrested for "sexual assault at the Peace Arch/Douglas border crossing, Surrey, B.C., on or about the 26th day of May, 2007." The police interviewed the accused only a few days after the alleged offence. In Greenhalgh, the fact that the investigating officer revealed further details about the allegations and evidence during the course of the questioning did not change the detainee's legal peril during the interrogation. That being the case, the police were not obliged to afford the accused a further opportunity to obtain legal advice.

[71] Nor is this a case having the same facts as R. v. Guthrie, 2016 ONCA 466, in which the accused was arrested and charged with assault causing bodily harm but at the conclusion of the interrogation was charged with aggravated assault and assault with a weapon. When the interviewing officer told the offender that he had been arrested for assault, the offender inquired whether the victim was still alive. The court concluded that the offender’s response indicated that he understood the jeopardy he faced. Guthrie was not a case in which the offender needed an additional opportunity to consult counsel, because the test established in R. v. Evans had not been met. In Guthrie there had not been a "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 warning." Unlike the case of Mr. Dapena-Huerta, the charges communicated before and during the interrogation, and the final charges, all arose from a single incident which was obviously known to the offender given his inquiry.

[72] It is true that Mr. Dapena-Huerta maintained his denial of any involvement in any other incident other than one. This does not alter the fact that the statement was taken in the context of several violations of his Charter rights. I conclude that it was not a voluntary statement, given that Mr. Dapena-Huerta at no time made a truly informed decision to speak with the detective.

[73] In reaching this conclusion I acknowledge that Detective Leitch warned Mr. Dapena‑Huerta again at the beginning of the interview that he did not have to talk to her and that she further repeated the secondary caution. I also find that there were no oppressive circumstances whatsoever and that DC Leitch used no unacceptable tactics to persuade him to open up to her. The video of the interview demonstrates that he asked questions, received answers, and willingly engaged in an extended conversation with the officer with the assistance of the translator.

[74] Nonetheless, Mr. Dapena-Huerta has proven on the balance of probabilities that the statement was taken in violation of his s. 7, 10(a) and 10(b) Charter rights.

[75] As earlier indicated, this finding forecloses the Crown’s application for a finding that the statement was made voluntarily.

REMEDY

[76] Mr. Dapena-Huerta seeks an order excluding the statement from being admitted into evidence pursuant to s. 24(2) of the Charter.

[77] Dealing with the three broad factors that the court must consider under the test set out in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the issue is whether a balancing of those factors results in the exclusion or inclusion of the statement that has been obtained in breach of Mr. Dapena-Huerta’s Charter rights.

[78] The first factor requires an examination of the seriousness of the Charter-infringing conduct by the police. I do not find any bad faith on the part of any of the officers involved, merely a failure to properly observe the fundamental informational components of s. 10(a) and (b), leading to a very serious deprivation of Mr. Dapena-Huerta’s s. 7 rights. Nor does the evidence lead me to believe that it was deliberate. This was a fast‑paced investigation and DC Leitch had been thrown back into the role of officer in charge on the date of the arrest; she impressed the court as a highly conscientious officer who, after working a prolonged day, had done her best to be thorough. Yet this is more than a minor violation. The fact that the officer did not inform Mr. Dapena-Huerta about the full extent of his jeopardy throughout the course of the arrest and subsequent questioning was a serious mistake that leaves the court with no confidence in the voluntariness of his decision to share information with her.

[79] The case law requires that trial judges be particularly mindful of the potential unfairness that would occur to an accused if the court allowed a self-incriminating statement obtained in violation of the accused’s rights to be used at trial: R. v. Collins, at pp. 284‑85; R. v. Hebert, at pp. 168, 182; R. v. Evans, at p. 896; R. v. Grant, at paras. 91‑92. Generally speaking, a violation of the fundamental rights seen in this case tends to result in exclusion of the statement when considering the impact on the accused’s Charter-protected interests: R. v. Grant, at para. 73. In this case there are no indicators that the statement was spontaneous or would have been made despite the Charter breach, or any other circumstances that would create a disposition toward inclusion.

[80] Society’s interest in an adjudication on the merits requires the court to consider all of the relevant circumstances to weigh whether the truth-seeking function of the trial would be better served by admission or exclusion of the evidence. On the one hand, I consider that an admission obtained in violation of Charter rights undermines the public’s interest in having a justice system which safeguards Charter-protected interests. On the other hand, sexual offences involving minors are serious offences that the public would want to see prosecuted thoroughly, but fairly. In taking this into account, it is important to note that exclusion of this statement will not end the Crown’s case. The evidence on this voir dire shows that the Crown is aware of multiple witnesses who are expected to give evidence to assist the triers of fact in reaching a verdict in this case.

[81] Balancing all of these considerations I find that inclusion of the statement will bring the administration of justice into disrepute and, accordingly, rule that it is inadmissible at trial in its entirety.

Healey J.

Released: September 20, 2017