NATURE OF THE APPLICATIONS

[1] The Crown seeks a ruling permitting it to rely on a statement made by Mr. Lawson 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. Lawson’s rights under ss. 10(a) and 10(b) of the Charter, and an order excluding or, in the alternative, editing, the statement pursuant to s. 24(2). By amended Notice of Application, a further order is sought excluding the applicant's clothing seized upon arrest, and the officers' observations of the applicant's clothing. With the consent of the parties, these applications proceeded by way of a blended hearing.

THE CHARGES

[2] Mr. Lawson is charged with committing armed robbery with a disguise on February 9, 2016, contrary to sections 344(1)(a.1) and 355(2) of the Criminal Code.

THE ISSUES

Was there a breach of s. 10(a) of the Charter when the police failed to inform Mr. Lawson of the date and place of the alleged robbery at the time of his arrest?
Was there a breach of s. 10(b) of the Charter when the police failed to hold off on taking investigative steps following Mr. Lawson's request to speak to duty counsel?
Was there a breach of s. 10(b) of the Charter when the police did not provide Mr. Lawson with immediate access to duty counsel upon his request?
If any of Mr. Lawson's Charter-protected rights were breached, what is the remedy?
Was the statement voluntary?

THE EVIDENCE

[3] Three young men are accused of robbing a PetroCanada gas station on February 9, 2016: Anothony Debattista, Felipe Udofe, and Ashton Lawson. The first two individuals were arrested by DC Pleskina after they left the gas station kiosk. On questioning, one of them identified Mr. Lawson as an accomplice.

[4] Investigation and surveillance were conducted on Mr. Lawson, which resulted in the police formulating a plan to arrest him at his workplace. In the early morning of March 17, 2016 DC Pleskina observed Mr. Lawson leaving his known address at 4:53 a.m, heading east on Kidron Avenue toward Kipling Avenue. Mr. Lawson was wearing a black jacket, a grey hoodie underneath with the hood pulled up, black pants and black and white running shoes.

[5] Mr. Lawson identified himself to DC Pleskina when asked, after which he was detained. DC Pleskina advised Mr. Lawson that he was under arrest for robbery with a firearm, following which he stated that that meant robbery with a gun. Mr. Lawson said nothing in response. The officer went on to advise Mr. Lawson in layman's terms that he could speak to a lawyer anytime he wanted, and did not have to say anything to him.

[6] Immediately thereafter DC Smith arrived on scene, followed by DC Organ. DC Pleskina told these officers that Mr. Lawson was under arrest for robbery with a firearm, and told the officers to formally caution him. Officers Smith and Organ took over the arrest, carrying out a search of Mr. Lawson’s clothing. They seized his cell phone and house keys. DC Organ testified that the police could not have implemented the right to call a lawyer when they were doing the apprehension and safety search.

[7] Det. Coulson, the lead investigator, arrived shortly after 4:57 a.m. DC Organ requested that he provide Mr. Lawson with the full rights to counsel and caution. He addressed Mr. Lawson immediately thereafter, telling him that he had been arrested for robbery with a firearm and disguise with intent. He then read the formal cautions to Mr. Lawson from the back of his notebook. Mr. Lawson confirmed that he understood both cautions, and stated that he did not have a lawyer and that he would talk with duty counsel. Det. Coulson indicated that this interaction occurred sometime before 5:08 a.m. DC Organ also heard Mr. Lawson say that he wanted to speak to duty counsel.

[8] Arrangements were made for a transport officer to take Mr Lawson to the station for booking. The evidence from the officers was that they typically do not transport in an unmarked cruiser. In this case they had the availability of a uniformed officer, and the investigative team had other tasks to carry out, such as executing a warrant.

[9] While waiting for the transport officer to arrive, Det. Coulson asked Mr. Lawson some questions. He asked who was at his house, and Mr. Lawson gave him that information. He also asked Mr. Lawson for his home telephone and cell phone numbers, which he provided. He asked for his physical descriptors - height and weight, scars or tattoos - and asked about his drug history, employment, and suicidal tendencies. Det. Coulson’s evidence is that some of these questions were required for the form for the show cause hearing. However, other questions were asked because the officers were expecting to execute a search warrant at Mr. Lawson’s home, and the information was needed to facilitate that next investigative step.

[10] Det. Coulson testified that he understands that when a detainee indicates that they want to exercise the right to counsel, he must afford them the opportunity to speak to a lawyer, in private, without delay. However, he also believes that when someone says they want to speak to a lawyer, he can continue to question them. He does not believe that he needs to hold off asking these kinds of questions, primarily because some of these questions would be asked during the booking process. These answers are difficult to reconcile with his testimony that he has been an officer for 17 years, in the hold-up unit for four years, and has been involved in giving rights to counsel a number of times. He acknowledged that during both his training and career he has been told that he is to hold off on questioning after a detainee asks to speak with counsel.

[11] Det. Coulson acknowledged that Mr. Lawson’s cell phone number was an important piece of evidence in the investigation. He was aware that Anthony Debattista and Felipe Udofe had been arrested by DC Pleskina after they left the PetroCanada kiosk on February 9, 2016. These other two individuals were also suspected of being involved in two previous robberies, one a couple of months earlier at the same gas station, and one at a Hasty Mart. Debattista’s cell phone was seized, and Det. Coulson was aware that it held communications between all three individuals. He suspected that an individual who Debattista called “Ash” referred to Mr. Lawson. He believed that there were communications with Mr. Lawson on Debattista’s phone about the February 9 robbery. Mr. Udofe’s phone also contained a contact named "Ash".

[12] The cell phone number provided to Det. Coulson by Mr. Lawson at the time of arrest corresponds to the contact number on Debattista’s and Udofe’s phones. Approximately a week before this arrest, Det. Coulson had assigned Det. Goetz to conduct the interview of Mr. Lawson. He knew that Det. Goetz would likely use that evidence during the interview process in order to get a statement from Mr. Lawson.

[13] After the roadside questioning, DC Organ explained to Mr. Lawson generally what he could expect, namely that he would be driven to the station and would be booked. There was no suggestion from his evidence that he told Mr. Lawson that he would be put in touch with duty counsel once he got to the station.

[14] At 5:07 a.m. PC Romanish arrived to transport Mr. Lawson to 4 District station and physical custody was turned over to him. He had no prior knowledge of the case, including the date or place of the robbery. He was driving a marked cruiser, which had a functioning in-car camera. He could not recall which of the detectives asked him to read Mr. Lawson his rights to counsel on camera, but he proceeded to do so. He could not recall whether any of the other detectives told him that Mr. Lawson had already been provided with this information, or that Mr. Lawson had already said that he wanted to speak to duty counsel.

[15] The video reveals that Mr. Lawson was placed in the cruiser and P.C. Romanish told him that everything was being recorded, that he did have to say anything unless he wanted to, and that anything he said could be used in evidence. Mr. Lawson’s voice can be heard on the tape saying that he understands.

[16] When P.C. Romanish read the rights to counsel, he told Mr. Lawson that he was under arrest for armed robbery with a firearm. The standard rights advice was then read, which indicated that Mr. Lawson could speak to a lawyer immediately. When asked "do you understand" Mr. Lawson responded "yeah", and stated that he did not have a lawyer but would speak to the “free” lawyer. Officer Romanish testified that at that point he understood that Mr. Lawson wanted to consult with a duty counsel. He testified that he took on the role of facilitating access to counsel once it had been requested. He is aware that this is a time sensitive matter. That exchange was the end of their discussion about being in touch with a lawyer, and he did not follow up by telling Mr. Lawson that the call could be placed at the station.

[17] PC Romanish left the scene with Mr. Lawson at 5:13 a.m. to travel to 4 District station. The only discussion that occurred between them happened at 5:23 a.m.. Mr. Lawson asked where they were headed and when told, an exchange occurred in which Mr. Lawson remarked that 23 Division was the closest station. The officer explained that they were heading to the closest York Regional police station.

[18] P.C. Romanish testified that he could not facilitate a call to counsel in the cruiser; that can only be done at the station. The directive that he follows is that the facilitation of rights to counsel is subservient to the booking process, meaning that he is generally not allowed to place the call until the booking has been completed. He also conceded that it was in the power of the booking sergeant to allow otherwise, but in his experience is never done. There are several reasons for this. The booking process cannot be interrupted for the detainee to receive the call. Also, no detainee is permitted past the booking area until that intake process has been completed. Until all of those preliminary matters have been completed, there is nothing that he can do to facilitate the detainee’s contact with counsel. Further, for reasons of officer safety a uniformed officer must be present to watch the detainee, because the staff sergeant is involved in the administrative tasks of intake. As the uniformed officer, he cannot abdicate his responsibility to watch the detainee in order to leave to make the call. He is also not allowed to use the phone in the adjacent Criminal Investigation Bureau (“CIB”) office during the booking process. His responsibility is to watch the detainee.

[19] At 5:28 a.m. they arrived at the door to the sally port and entered the cell block area at 5:33 a.m., where they were met by Sgt Milne. PC Romanish explained that the process that they went through was that the staff sargeant asked questions, and another search of Mr. Lawson was conducted.

[20] There were no security concerns, nor volume of other detainees, which would have prevented PC Romanish from putting Mr. Lawson in the counsel consultation room immediately on entry. The reason this was not done was just the fact that booking had to be completed first. He agreed that there was nothing stopping him from asking the sargeant to place the call to duty counsel other than that the sargeant was inputting pertinent information during the booking.

[21] Shortly after Mr. Lawson was brought in to the booking area from the sally port, DC Bailey entered the booking area. DC Bailey had been with PC Romanish earlier that morning, standing by to be called in to the precise location of the arrest. PC Romanish testified that he would not have thought to ask DC Bailey to watch Mr. Lawson while he left to place a call to duty counsel, because DC Bailey was dressed in plain clothes and so did not have a full use of force kit on his person. When asked whether it was preference or protocol that the uniformed officer has to have custody of the detainee in the booking hall, his response was that he is unaware of any exceptions. In his experience it is always a uniformed officer. Also, he knew that DC Bailey's role at that time was to seize Mr. Lawson's clothing.

[22] In the normal course, any non-essential clothing, such as a scarf and coat, is taken during the booking to prevent it from going into the cell. In this case, there was also a seizure of an item of Mr. Lawson’s clothing. DC Bailey began to take Mr. Lawson’s clothing at 5:37 a.m.. This was done in part to fulfill an investigative need, which was to compare the hoodie to clothing worn by the perpetrator on the surveillance video. When asked why the clothing was seized before the contact with counsel was facilitated, PC Romanish did not have an answer other than that it was a decision made by the investigating officers. He did not question it, nor think about any delay created by that sequence of events. He was following orders, and it did not occur to him to do anything differently.

[23] During this time period, PC Romanish knew it was his responsibility to facilitate Mr. Lawson speaking to duty counsel, and his intention was to do it as soon as he was able.

[24] Mr. Lawson was placed in a cell at 5:43 a.m. At 5:46 a.m. PC Romanish went out to the sally port and searched the back of his cruiser for any articles that may have been left behind, and then moved the cruiser out to the parking lot. This took one to two minutes. He testified that this was the first thing that must be done once a detainee is lodged in a cell, as the sally port is only big enough for two vehicles. On this day, however, the sally port was not needed by other officers at the time. PC Romanish agreed there was nothing preventing him from asking DC Bailey or another detective to place the call to duty counsel before he went out to move the cruiser. There is no specific protocol that he is aware of that required him to move the cruiser before facilitating the call to counsel. He stated that he was just following his understanding of general protocol.

[25] When he was done with the vehicle, PC Romanish went into the CIB office, located just next to the booking area. He could not recall with whom he spoke, nor exactly what was discussed, but his intention was to confirm that Mr. Lawson had requested duty counsel, and to ensure that no one else had placed the call.

[26] PC Romanish agreed that moving the car and going to the CIB office could have been postponed. He explained that he did not place the call, then move the car, because he wanted to be present in order to receive the return call from the duty counsel. He understood that there is often a delay in counsel returning a call when it is placed on the hotline. Other than the constraints he previously outlined, PC Romanish agreed with defence counsel that there was nothing stopping him from asking Det. Bailey to place the call to duty counsel, other than his own involvement in the booking process. He agreed that this would not be an unreasonable thing to do given the delay entailed by the drive, the booking process, and then the unknown time waiting for a return call.

[27] The counsel telephone room is adjacent to the booking desk in the cell block, almost across from the cell in which Mr. Lawson was placed. The telephone only accepts incoming calls. The room is private other than a window through which an officer can watch the detainee. PC Romanish called the duty counsel hotline at 6:01 a.m. His call was returned at 6:10 a.m. The only thing that he told the lawyer about the case was that they had a detainee under arrest for robbery with a firearm, and the time of arrest, which was all that he knew about the case at the time. He escorted Mr. Lawson into the private room at 6:11 a.m.

[28] PC Romanish placed Mr. Lawson back in his cell at 6:14 a.m., and had no further interaction with him.

[29] Detective Goetz retrieved Mr. Lawson from the cells at 8:10 a.m., having had no previous interaction with him. He knew that Mr. Lawson had exercised his right to speak with a lawyer. It was his intention to interview him about the February 9, 2016 robbery. While walking to the interview room and before they went on camera, Det. Goetz did not say anything to Mr. Lawson about the robbery.

[30] Det. Goetz trained as a polygraph examiner, a role which he performed between 2006 and 2012. He then worked in the fraud and the holdup units for three years, and returned to examining in January 2015 to the present time. He is trained in interview techniques.

[31] Detective Goetz was aware that the two suspects, Debattista and Udofe, had been arrested in connection with the robbery of February 9. His focus on the day of his interview of Mr. Lawson was to identify the third individual involved. From his file review, he also knew that there had been earlier robberies, one of which involved the same gas station. He was aware that Debattista and Udofe were also suspected of being involved in the two previous robberies.

[32] He does not know whether anyone told Mr. Lawson the date or location of the offences underlying the charges. Once the interview had begun, Det. Goetz only told Mr. Lawson that he was investigating a robbery with a firearm. This is standard practice for him.

[33] He testified that he does not feel it is his obligation to identify the date and place of the offences to a detainee, as he believes that he has no legal obligation to discuss any specifics outside of the charge itself. He did not agree that it is important for a detainee to know the transaction about which he is being interviewed. Det. Goetz testified that it is not an effective interview technique to reveal all the information at the beginning, nor is it required. By holding back information he can confront or contradict a detainee with information if it is not provided voluntarily or accurately. He agreed that he held back information from Mr. Lawson for these purposes.

[34] Further, he stated that the fact that a detainee provides information that only the perpetrator would know is significant, as it signals that a detainee has inculpatory information. This is in fact what occurred; Mr. Lawson was the first to bring up the place of the robbery.

[35] When asked whether an accused has to know, at a minimum, the date and place of the offence before making a choice about speaking, Det. Goetz stated that that was not his understanding of the law. During his training it was never suggested that he needed to inform the detainee of the date, time or location of the alleged offence with which he or she had been charged. When asked whether this was the same in the case of a historical offence, his response was that these details would come up during the interview, but he is not required to lead the interview with them.

[36] Mr. Lawson was not handcuffed when taken to the interview room, nor during the interview, even when he went to the washroom. He was provided with food and drink. His jacket and shoes were brought back to him when he expressed that he was cold. Det. Goetz did not see any safety concerns arising from the return of those items to Mr. Lawson during the interview. There was no delay in the course of the interview, and it was not unduly long.

[37] Each of the officers who came into contact with Mr. Lawson that day confirmed that they did not threaten or promise anything to him in exchange for speaking to the police. There is no allegation of any influence of this nature.

Was there a breach of s. 10(a) when the police failed to inform Mr. Lawson of the date and place of the alleged robbery?

[38] The question raised by this case is the extent of the information required to be shared with a detainee about the offences for which he has been arrested, where there is some delay between the offence and the arrest. In this case that delay was a period of approximately 4 and a half weeks.

[39] Section 10(a) of the Charter provides that everyone has the right on arrest or detention to be informed promptly of the reasons therefore. In R. v. Latimer, 1997 405 (SCC), [1997] 1 S.C.R. 217, at p. 233, the Court explained that the purpose of this provision is to ensure that a person "understand generally the jeopardy" in which he or she finds himself or herself. The Court explained that there are two reasons why the Charter lays down this requirement: first, because it would be a gross interference with individual liberty for persons to have to submit to arrest without knowing the reasons for that arrest, and second, because it would be difficult to exercise the right to counsel protected by s. 10(b) in a meaningful way if one were not aware of the extent of one’s jeopardy.

[40] In its earlier decision of R. v. Smith, 1991 91 (SCC), [1991] 1 S.C.R. 714, the Court explained that the sufficiency of the information needed to permit an accused to provide a valid waiver of the right to counsel does not require that the accused be aware of the precise charge faced, nor that he or she be made aware of all of the factual details of the case. What is required is that the individual be possessed of sufficient information to allow him or her to make an informed and appropriate decision as to whether to speak to a lawyer or not. The emphasis must be on the reality of the total situation as it impacts on the understanding of the accused to grasp the extent of his jeopardy: pp.728-29.

[41] The Ontario Court of Appeal’s decision in R. v. Eakin (2000), 2000 2052 (ON CA), 132 O.A.C. 164, appears to endorse that the circumstances of the case dictate whether the information provided to detainees will have been 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. It was his position that he believed he was under arrest for events that were alleged to have occurred on the date of his arrest, rather than some weeks before. He argued that it was only when he was confronted with the allegations in question 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), 1991 91 (SCC), 63 C.C.C. (3d) 313 at 323 (S.C.C.), “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.”

[42] Consistent with these cases, the Alberta Court of Appeal in R. v. Jackson, 2005 ABCA 430, 376 A.R. 99, at para. 25, held in the circumstances of that case that it was sufficient to meet the requirements of s. 10(a) for the accused to have been advised that he was under arrest for murder. It was unnecessary that he be given the circumstances of the offence, including the identity of the deceased, in order to satisfy s. 10(a). In that case, the accused made comments to the police indicating that he knew the deceased's identity before the deceased's name had been mentioned by the police.

[43] Similarly, Mr. Lawson identified the circumstances of the offence that forms the subject matter of his charges even before they were communicated to him in full by Det. Goetz. Very early on in the interview, Mr. Lawson was shown a picture of Anthony Debattista and spontaneously stated that he was aware that he had gone to jail. He also revealed that he was aware of the date on which he had gone to jail, stating that the last time that he saw and spoke with Debattista was probably the day before he went to jail. He went on to discuss the fact that Debattista was not at their last playoff basketball game the next day because he was in jail. I conclude from this that he clearly knew the day on which the robbery had occurred for which Debattista had been charged. As he continued being questioned about his knowledge that Andrew Debattista had gone to jail, the following exchange took place:

Det. G: Okay. So, um, and what did [Mr. Debattista] go to jail for?

AL: He went to jail for armed robbery.

Det. G: Okay.

AL: This is the same bullshit that they're trying to bring me in here for.

Det. G: Okay.

AL: Um-hmm.

Det. G: All right. Now why do you say it's the same?

AL: Hmm?

Det. G: Why are you saying it's the same?

AL: That's what he said I was charged with.

Det. G: Okay.

AL: Um-hmm.

Det. G: Okay. Same charges…

AL: Um-hmm.

Det. G: …ah, he had is what you're saying?

AL: Yeah.

[44] Given that Debatissta had not been charged for being involved in the earlier robberies, it is clear that Mr. Lawson cannot be confused about which robbery he was being questioned about. He knew the date, and he knew the charges. The charges had been described to him in clear terms by at least three officers earlier that morning, and by Det. Goetz at the outset of the interview.

[45] Further, later on in the interview, Mr. Lawson was the first to speak of the physical location of the robbery for which Debatistta had been arrested. His knowledge is stated in absolute terms:

AL: I know the gas station got robbed at Kipling and Steeles.

[46] I conclude from this evidence that Mr. Lawson knew the date and place of the robbery, and the charges that he faced, at the time that he spoke with duty counsel. He fully knew the jeopardy that he was in at the time that he elected to speak with Det. Goetz.

[47] There is no question that Det. Goetz gradually revealed what he knew about the robbery during the interview. The approach of revealing further details to a detainee as the interview progressed was commented on by the Supreme Court of Canada in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 60:

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

[48] This observation means that the revelation of further information about the offence for which the individual has been detained or arrested is not seen as changing the jeopardy to which he or she is subjected. In Sinclair the Court listed three circumstances where a second consultation with counsel is required, one of which is where the detainee’s jeopardy has changed. The gradual revelation of evidence identified in the foregoing passage does not create such a change. In this case, however, the gradual revealing did nothing to add to Mr. Lawson’s understanding of what he was being accused of doing in relation to the robbery of February 9.

[49] Defence counsel relies on two authorities in which the trial judges found, in the circumstances of those cases, that a bare reading of the charges was insufficient to meet the informational requirements of s. 10(a): R. v. Koivisto, 2011 ONCJ 307, 87 C.R. (6th) 285; R. v. MacLean, 2013 ABQB 60, 551 A.R. 274. The facts of each of Koivisto and MacLean show that the detainee had scant to no information about the circumstances of the offences each had been accused of committing, unlike Mr. Lawson. The decision in Koivisto is not persuasive for the additional reason that it did not refer to the binding authority from the appellate court, namely Eakin.

[50] Based upon the application of the principles set out in the governing authorities to the evidence, I conclude that Mr. Lawson’s s. 10(a) rights were not violated.

Was there a breach of s. 10(b) when the police failed to hold off on taking investigative steps following Mr. Lawson's request to speak to duty counsel?

[51] The defence submits that there was a delay in implementing Mr. Lawson’s right to obtain advice following his arrest, and that during this delay there were two distinct actions taken by the police which violated his constitutional rights. The first was that after Mr. Lawson indicated that he wanted to speak to the police, Det. Coulson continued to ask him questions at the roadside while waiting for PC Romanish to arrive. Some of those questions allegedly served the purpose of carrying out the next step in the investigation, which was the execution of a search warrant. During this questioning Mr. Lawson also provided his cellular telephone number, which was of importance to the investigation.

[52] The second impugned action was the seizure of Mr. Lawson’s clothing during the booking procedure, which was also done to further investigative goals.

[53] The defence submits that these actions show a systemic or institutional indifference to the rights protected by s. 10(b), particularly when coupled with the evidence surrounding the delay in implementing the call to duty counsel.

[54] The law is very clear that the police have a duty to “hold off” questioning detainees who have requested to consult with counsel, until they have had a reasonable opportunity to do so: R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, at p. 192; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 27. This restraint includes refraining from requiring the detainee to participate in investigative procedures, or eliciting evidence from the detainee: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 26; R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, at para. 64; R. v. Hamilton, 2017 ONCA 179, 37 C.R. (7th) 139, at para. 48.

[55] I conclude that there was a breach of s. 10(b) when Det. Coulson continued to ask questions, and when the hooded sweatshirt was taken from Mr. Lawson for the sole purpose of comparing it to the clothing seen on the surveillance tape, before Mr. Lawson was put in a position to speak with duty counsel.

[56] There are additional considerations that will factor into the s. 24(2) analysis arising from this breach. First, while defence counsel obtained an admission from Det. Coulson that not all of the questions that he asked Mr. Lawson would be required either for the show cause hearing or would be asked by the booking officer, or both, it was left unclear which questions went beyond those possible spheres. There is no way by which this court can conclude which of those questions may possibly have fallen exclusively into the “investigatory sphere” or the improper obtaining of evidence.

[57] Defence counsel focused in particular on a question regarding which of his family members were home at the time of his arrest, and the request for his cellular telephone number. There is no basis upon which this court can conclude that the first question assisted in obtaining the search warrant, as there is no evidence as to when the warrant was obtained. Further, Mr. Lawson volunteered his cell phone number to Det. Goetz during the course of the interview, after consulting with counsel.

[58] To this latter point, this is a case in which a “fresh start” was properly made by Det. Goetz at the outset of the interview with Mr. Lawson, in compliance with the direction given in R. v. Plaha (2004), 2004 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 53 and R. v. Hamilton, at para. 58. From the outset of the interview Det. Goetz told Mr. Lawson that he did not have to say anything, and he then went on to provide the secondary caution by stating:

Det. G: And whatever you may have said to the police earlier, you don't have to repeat that, nor do you have to say anything further, but whatever you do say could be used as evidence, do you understand that?

[59] Mr. Lawson answered affirmatively. These steps, taken after Mr. Lawson had consulted with duty counsel, had the effect of obtaining a statement free from the possible effects of the earlier breach when Mr. Lawson was questioned at the roadside.

[60] Finally, the Crown has indicated that it will not be relying on any of the statements made at the roadside, or any observations made by officers about the clothing after it was seized.

Was there a breach of s. 10(b) of the Charter when the police did not provide Mr. Lawson with immediate access to duty counsel upon his request?

[61] The defence did not argue that the informational component of s. 10(b) was ignored in this case. To the contrary, counsel argued that the repetition of the reading of the standard information by PC Romanish, and perhaps by the booking sergeant, demonstrates a rote and casual approach to a detainee's Charter rights when coupled with unwarranted delay in connecting the individual to that legal advice. In his words, the repetitious compliance with the informational component in this case, without prompt carry-through, had a "whiff of self-preservation" and sends an incorrect message about the importance of rights protected by s. 10(b).

[62] There are two spans of time during which, according to the defence argument, it would have been possible to speed up Mr. Lawson's access to legal advice. The first was at the roadside. This would have taken place sometime between when he first indicated to Det. Coulson that he wanted to speak with a lawyer, and before the drive to the station occurred. This time period spanned from approximately 5:00 a.m. until 5:13 a.m., although could of course have been prolonged if Mr. Lawson had been allowed to hold a telephone call.

[63] The second time period occurred after Mr. Lawson arrived in the booking area at 5:33 a.m., until he finally spoke with duty counsel at 6:11 a.m.

(a) At the roadside

[64] The governing principles were set out by Abella, J. on behalf of the Court in Taylor, at para. 24, as follows:

The duty to inform a detained person of his or her right to counsel arises "immediately" upon arrest or detention (Suberu, at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee's request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000), 2000 ABCA 301, 271 A.R. 368, at para. 12 (C.A.)). Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.

[65] The question arises as to whether the roadside, in the context of this type of arrest or detention, typically affords the first reasonably available opportunity. There is a line of authorities suggesting otherwise. In R. v. Devries, 2009 ONCA 477, 95 O.R. (3d) 721, at para. 30, Doherty J.A. stated:

With respect to the contrary view, I do not think that the use of the word "now" in the context of the administration of the s. 10(b) caution at the roadside implies that the detainee can speak with a lawyer instantly upon the officer's completion of the s. 10(b) caution. Most police officers are not standing with a telephone in their outstretched hand as they complete the s. 10(b) caution. The officer's statement to a detainee at the roadside that he or she may speak with a lawyer "now" would necessarily convey that the right to speak with a lawyer was contingent on the availability of a telephone that was useable in circumstances that would permit the detainee to speak with a lawyer for the purpose of obtaining legal advice.

[66] The Supreme Court of Canada in Taylor has made clear that a police officer is not obliged to provide his or her own cell phone to a detainee: para. 27. Also, in R. v. Nelson, 2010 ABCA 349, 490 A.R. 271, at para. 17, the Court stated: "People are not always arrested in locations where it is possible for police to implement access to counsel.... Immediacy does not mean instantaneous; practical considerations still play a role, particularly with respect to the police's obligation to implement an arrested person's contact with counsel."

[67] In a decision of this court, Di Luca, J. in R. v. Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78, reviewed case law delineating general guiding principles that may justify a delay or suspension of the right to counsel. Scenarios in which there are practical considerations such as a lack of privacy or an arrest at a location that has no telephone access may justify delay.

[68] The rationale provided by the police for not facilitating a telephone call to counsel at the roadside was that it was not practicable for a number of reasons. These included: 1) they had seized Mr. Lawson’s cell phone; 2) there was no ability for privacy, as protocol required that once the in-car camera had been turned on, it must not be turned off; 3) they were on Kipling Avenue, which was already becoming busier at that time in the morning, as indicated by the fact that DC Pleskina had to move cars off the roadway shortly after his arrest of Mr. Lawson; and 4) protocol dictates that those calls are made at the station in the room designed for the safety of the detainee and officers. These are all sound reasons why facilitating a telephone call at the roadside, in the circumstances of this case, was not reasonable during the period in question. To this I would comment that defence counsel’s scenario of having the police place the call to the hotline on Mr. Lawson’s phone, waiting for the call to be returned, un-cuffing Mr. Lawson so that he could physically hold the phone to his ear, returning Mr. Lawson’s cell phone to him whenever the call from the lawyer came in, and then giving him the necessary privacy for the call, is an unreasonable plan. There are multiple ways for this to have “gone wrong” at the roadside. Although he was completely compliant with the arrest, I note that the evidence given by him during his interview is that Mr. Lawson was 6’3” tall and weighed 200 lbs at the time. Beyond the initial arrest, the police had no way of knowing how he might react if given the chance to resist or flee. In the location of a major street, safety concerns for Mr. Lawson, the police and civilians would reasonably be heightened.

[69] The same conclusion was reached by Charney, J. in R. v. W.L., 2016 ONSC 5141, 364 C.R.R. (2d) 107, a case in which the applicant complained that the police should have permitted him to use his cell phone to call his own lawyer as soon as he was arrested at 4:18 p.m., rather than making him wait until he got to the police station almost two hours later. As in this case, the police detectives testified that they did not permit the applicant to contact his own lawyer on his own cell phone either at the scene of the arrest or in the police cruiser because these were not areas where private conversation could be held. At para. 46 Charney J. concluded that it was reasonable for the police to wait until they arrived at the police station to comply with the implementational duty to contact counsel.

[70] I agree with defence counsel that the need for “immediate” legal advice is tied to the issue of “holding off”, and the need to minimize the risk that a person will self-incriminate. These are principles that are without debate, as outlined in Bartle, Taylor and R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151. Nonetheless, the implementational duty must still be looked at contextually, and it is my view that the circumstances giving rise to the pre-station delay in this case do not amount to a breach of s. 10(b).

(b) In the booking area

[71] The defence argues that the protocol adopted by the York Regional Police, which is to wait until the booking process is one hundred percent completed and the cruiser moved from the sally port before placing the call to the duty counsel hotline, opens the door to unlimited, untenable delay in the right to counsel. Defence counsel in particular relies on Taylor, at para. 33: “Constitutional rights cannot be displaced by assumptions of impracticality. Barriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel."

[72] During the booking period clothing was taken, other than the hoodie, in accordance with the protocol to remove all unnecessary clothing for the purpose of a detainee’s safety. The hoodie was seized, it appears to be admitted, solely to compare it to the videotape. The evidence of PC Romanish is that generally the seizure of clothing, as opposed to just the removal and storage of non-essential clothing, is not part of the booking process.

[73] The delay was 38 minutes long, comprised of the time for the booking, the moving of the cruiser, the discussion between PC Romanish and detectives in the CIB office, and then waiting for the return call. Mr. Lawson spoke with duty counsel, at most, 1 hour and 15 minutes after his arrest. This is not the kind of delay measured in hours, as seen in the cases relied on by the defence, such as R. v Manninen, 1987 67 (SCC), [1987] 1 S.C.R. 1233, R. v. Learning, 2010 ONSC 3816, or Wu.

[74] Other than potentially the moving of the cruiser, which took one to two minutes, all of these steps were taken to move Mr. Lawson closer to speaking with duty counsel. The delay was caused by the fact that the police are responsible for each detainee, and so must obtain necessary background information to ensure that both the detainee and the officers remain safe. Issues such as intoxication, mental health, medications and other background information are usually covered by the booking sergeant, and the cautions are repeated to ensure that the detainee fully understands his or her rights. Background information is taken from the accused for his show cause hearing.

[75] The protocol of having a uniformed officer present at all times during the booking procedure, for the reasons given in evidence, again makes sense both for the safety of the detainee and others in the building. It was not until Mr. Lawson was safely lodged in a cell that it would have been reasonable to place the initial call to duty counsel. Had the call been placed at that time, Officer Romanish would have had to wait near the call room for however long it took for duty counsel to return the call. To delay this by only a few minutes for the practical reason of emptying the sally port and touching base with the detectives about the very issue of calling duty counsel could hardly be characterized as a trammelling of Mr. Lawson’s rights.

[76] Defence counsel was unable to provide a precedent case in which a delay in contacting counsel due to an intervening booking procedure was held to constitute a breach of s. 10(b). On the other hand, the issue was raised in R. v. Charles, 2011 ONSC 1242, and R. v. Gibson, 2011 ONSC 3416, both cases holding that preliminary steps such as the booking procedure and a search are expected and justifiable delays. In Charles, a two hour delay caused by completing these procedures was found to be justified; in Gibson a delay of 27 minutes was found to be justified where that time period did not involve “wasteful delay”. In the case of Mr. Lawson, the delay was not caused by a cavalier disregard on the part of PC Romanish toward his duty to facilitate the call to counsel, but rather was caused by reasonable protocol that was followed for sound reasons.

[77] Each case must be assessed on its own facts when evaluating whether the authorities have been proactive enough to help a detainee access advice without delay. As defence counsel suggests, there could be circumstances when the booking procedure is interrupted, delayed or prolonged, where it might be reasonable for duty counsel to be contacted before that procedure has been completed. This is not that case. I conclude that the reasons behind the very moderate length of delay involved in this case do not amount to a breach of Mr. Lawson’s s. 10(b) rights.

Section 24(2)

[78] As earlier indicated, there was a breach of Mr. Lawson’s s. 10(b) rights when the police failed to hold off on collecting evidence and furthering their investigation.

[79] Dealing with the three broad factors that the court must consider under the test set out in R. v. Collins, 1987 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 evidence that has been obtained in breach of Mr. Lawson’s Charter rights.

[80] The first factor requires an examination of the seriousness of the Charter-infringing conduct by the police. Det. Coulson appears to have known that he should not ask questions that may lead to unintentional self-incrimination by a detainee before speaking with counsel, yet he forged ahead in doing so. It is not entirely clear to the court the extent to which his dual purposes may have overlapped. One or two questions appear to have been aimed at furthering the investigation. Others seem to have been rationalized as background information which would have been collected during the booking in any event. As a general principle, the law is clear that the police should hold off on questioning. Given the conclusions reached with respect to the lack of unreasonable delay in implementing the rights to counsel, I cannot agree with defence counsel that this infringement is elevated to a higher level of seriousness on the basis that the evidence reveals that the police displayed a systemic or institutional indifference to Mr. Lawson’s ss. 10(a) and (b) rights. Nonetheless, the questioning that took place at that point that went toward advancing the investigation was conduct that should not be sanctioned.

[81] Similarly, the seizure of the hoodie cannot be seen as something occurring within a period of unreasonable delay in implementing the s. 10(b) rights. Nor is it derivative evidence that is in any way linked to the unlawfully obtained roadside statement. The taking of the sweatshirt itself was not particularly intrusive, and resulted in nothing more than discomfort to Mr. Lawson until Det. Goetz returned his jacket when he complained of being cold.

[82] The second factor requires an examination of the impact on the accused’s interests. In this case, there are none. The telephone number would have been easily ascertainable from the phone itself. Further, after the “fresh start” provided by Det. Goetz, Mr. Lawson provided the number. It is not clear that there was any other information provided at the roadside that may have adversely impacted Mr. Lawson. And given that the Crown does not seek to rely either on the sweatshirt itself, the officer’s observations of it, or the statements made by Mr. Lawson at the roadside, there is no basis on which to conclude that Mr. Lawson’s Charter-protected interests have been impacted.

[83] 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. But in this case, the violations that occurred had no impact on the statements made by Mr. Lawson during his interview. He had received legal counsel and had again been cautioned by Det. Goetz at the outset of the interview. He was clearly told that he did not have to say anything to the detective, and acknowledged that he understood. Mr. Lawson has not shown on a balance of probabilities that the statement was obtained in violation of his right to remain silent.

[84] With respect to the third prong of the Grant analysis, the statement taken by Det. Goetz is a significant piece of evidence in which substantive statements about the crimes charged were made by Mr. Lawson, including an alibi which the Crown should be entitled to test, and evidence of his connections to Debattista and Udofe. Weapons crimes are among those for which society rightfully has increasingly limited tolerance. Excluding the statement would be adverse to society’s interest in having a fair adjudication on the merits.

[85] Having considered these three required lines of inquiry, I am satisfied that the administration of justice will not be brought into disrepute by the inclusion of the statement itself. By agreement of counsel, however, the statements made by the roadside by Mr. Lawson shall be excluded, as will Mr. Lawson’s hooded sweatshirt and the detective’s observations in relation to it.

Voluntariness of Statement

[86] Under the common law confessions rule, a statement to a person in authority is inadmissible unless the Crown proves beyond a reasonable doubt it was made voluntarily. The inquiry is focused on whether the statement is reliable and whether the accused's rights have been protected, including the right to silence and the right to a fair trial. Relevant factors to consider include the existence of threats, promises or inducements, oppressive conditions, the lack of an operating mind, or police trickery of such a nature that it denies the accused's right to silence or shocks the community: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3.

[87] 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.]

[88] In addition to the common-law confessions rule, the right to silence is protected under s. 7 of the Charter. Where a person is detained and knows they are speaking to a person in authority, the analysis under the common-law confessions rule and section 7 are functionally equivalent. The residual protection to the right to silence under section 7 can supplement the common law and may result in the exclusion of statements which would have been admitted under the common-law: R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 25.

[89] There is no evidence upon which this Court can conclude that the statement made to Det. Goetz was involuntary by application of the principles in Oickle. Nor can it be concluded that Mr. Lawson made an uninformed decision to speak with the detective, or otherwise involuntarily answered his questions and provided information. He was, other than the road-side breach, afforded his s. 10(b) rights without delay, and there was no breach of s. 10(a). There is no basis upon which to conclude that his right to silence was undermined by the authorities.

[90] The Crown has met the burden of demonstrating that the statement was voluntary. As there is no other basis for its exclusion, it will be admitted into evidence. However, by agreement between counsel, the jointly edited version of the statement marked as exhibit 6 on this voir dire will be used. I have now reviewed that exhibit and agree with the proposed edits for the purpose of trial.

HEALEY J.

Released: November 16, 2017

R. v. Lawson, 2017 ONSC 6807

Case Summary

NATURE OF THE APPLICATIONS

THE CHARGES

THE ISSUES

THE EVIDENCE

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 6

Legal Tests 3

Legislation 1