CITATION: R. v. Borutski, 2017 ONSC 7748
COURT FILE NO.: 10-RM1896
DATE: 2017/12/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
BASIL BORUTSKI
Jeffrey Richardson and Julie Scott for the Crown
Basil Borutski acting in person; James Foord as Amicus Curiae, and Patrick McCann appointed pursuant to s. 486.3 of the Criminal Code.
HEARD: May 8 to May 30, 2017
Reasons for rulings on pre-trial motions
maranger J.
Introduction
[1] Basil Borutski was charged with three separate counts of first-degree murder in the deaths of Anastasia Kusyk, Nathalie Warmerdam, and Carol Culleton, contrary to s. 235(1) of the Criminal Code, R.S.C. 1985, c. C-46. The three murders were alleged to have taken place on September 22, 2015, in the Counties of Renfrew and Hastings, each situated in the Superior Court of Justice’s East Region, in the province of Ontario.
[2] On November 24, 2017, following a six-week trial, a jury returned a verdict of guilty of first degree murder on counts 1 and 2, and of second degree murder on count 3.
[3] Pre-trial motions were conducted in the first three weeks of May 2017. On May 11, May 23, July 4, and August 22, 2017, oral reasons for the various rulings were delivered.
[4] Some of the rulings were expanded upon during the course of the trial. These issues included but were not limited to: whether to admit certain ante mortem statements; whether to admit other discreditable conduct evidence; whether to admit several out of court statements made by the accused, whether to order a psychiatric assessment on the accused’s fitness to stand trial; whether to order a psychiatric assessment on the issue of a possible NCR defence; and the extent of the role of amicus curiae during the pre-trial motions and at trial.
[5] The oral reasons delivered by the court on the following issues were, in my estimation, adequate and require no further elaboration: the admissibility of the ante mortem statements; for declining to order a second fitness psychiatric assessment; the admissibility of out of court statements of Basil Borutski (except the statement to Detective Sgt. O’Neill) and the other discreditable conduct evidence.
[6] The oral reasons for ordering an NCR psychiatric assessment were also adequate, however a brief explanation of what transpired as a result is warranted.
[7] What follows are the written reasons respecting: (1) the NCR assessment outcome; (2) the expansion of the role of amicus curiae; and (3) the admissibility of the statement given to Detective Sgt. O’Neill on September 23, 2015.
Factual background and trial management issues
[8] On September 22, 2015, Carol Culleton was found beaten and strangled to death in the bedroom of her cottage property located at 670 Kaminiskeg Lake Road, Hastings County; Anastasia Kuzyk was found shot to death in her home located at 37 Szczipior Road, Renfrew County; and Nathalie Warmerdam was found shot to death in her home located at 3594 Foymount Road, Renfrew County. These three murders took place within hours of each other. The distance between each crime scene was approximately 30 km, or a 25 minute drive.
[9] On the same day, an unprecedented manhunt was launched in the eastern region of the province Ontario to apprehend the suspect, Basil Borutski. Witnesses implicated Basil Borutski in two of the murders. He had a past abusive and acrimonious relationship with Anastasia Kuzyk and Nathalie Warmerdam, and had just had a falling out with Carol Culleton.
[10] The apprehension of Basil Borutski was a significant event involving dozens of police officers from both the Ontario Provincial Police (OPP) and the Ottawa Regional Police Services. There was widespread fear in Renfrew County. The Pembroke Court House was locked down. It was thought Basil Borutski was on a murder spree, and that other victims were being hunted down.
[11] Ultimately, Basil Borutski was arrested uneventfully, in a field, near a hunting cabin owned by his family on September 22, 2015, at approximately 2:30 p.m. In the moments prior to his arrest, he texted several messages to his brother, Arthur Borutski, and to Constable Corey Robertson. These text messages included the words: “I did it” and “the guilty have paid”.
[12] Detective Constable Thompson made the initial arrest and cautioned the accused. Basil Borutski advised him of the nearby location of a shotgun, the weapon used in two of the murders. He was then turned over to two Ottawa police officers, who formally arrested and cautioned him.
[13] On September 23, 2015, Basil Borutski provided a statement to Detective Casey O’Neill of the OPP, in which he described killing the three victims.
Trial management issues and the accused’s non-participation
[14] Following the statement of September 23, 2015, Basil Borutski had little to no participation in any of the criminal proceedings. For the vast majority of the time, he has been silent and fundamentally unresponsive to any question asked of him by any judicial officer involved in the process. He did not hire a lawyer, or ever even attempt to hire a lawyer, despite being urged to do so.
[15] On March 22, 2016, R. Selkirk J. of the Ontario Court of Justice ordered a psychiatric assessment to determine Basil Borutski’s fitness to stand trial pursuant to s. 672(11) of the Criminal Code. Basil Borutski refused to participate. In correspondence to the court dated March 22, 2016, Dr. S.N. Braithwaite indicated:
In compliance with the March 10, 2016 order of Justice Selkirk, I attended the Ottawa Carleton detention Centre on March 22, 2016, and attempted to conduct an assessment of whether Mr. Borutski is unfit to stand trial on three counts of murder under section 235 subsection 1 of the criminal code of Canada. It is noted that the order was to be in effect for a total of 30 days. It is not been feasible to admit him to the hospital for this assessment.
…. I attempted to establish his identity by asking his name, to which he responded, “I don’t know”. I introduced myself and explained the purpose of my visit. He denied that his name was Basil Borutski and maintained that he did not know what his name was, I asked him what people call him he responded “ass hole”. He made it quite clear that he did not want to speak with me but did acknowledge that he does not have a lawyer. He was not at all interested in pursuing the assessment and presented this in a somewhat angry tone of voice. I regret, therefore, that I have not been able to respond to the question posed by the Court.
[16] On August 4, 2016, Ratushny J., in her capacity as a case management judge, ordered the appointment of amicus curiae, as well as a s. 486.3(3) counsel designated to conduct the cross-examination of two witnesses, who were family members of Anastasia Kuzyk and Nathalie Warmerdam. The amicus curiae, James Foord, and the s. 486.3 counsel, Patrick McCann, are two very experienced criminal lawyers from the city of Ottawa.
[17] Ratushny J. also conducted several pre-trial and case management conferences during which Basil Borutski remained silent and unresponsive.
[18] On February 2, 2017, McNamara R.S.J. conducted a hearing to determine whether to transfer the trial from the town of Pembroke, in the East Region of the province of Ontario, to the city of Ottawa, also in the East Region of the province of Ontario. Basil Borutski remained silent and non-responsive throughout that motion. On February 7, 2017, the matter was transferred to the city of Ottawa.
[19] During the pre-trial motions in May 2017, Basil Borutski was asked on daily basis: whether he had anything to say, if he had any questions, or if he had any arguments or issues he wished to raise. Basil Borutski rarely made eye contact, never stood before the court, and never responded verbally or otherwise to any of the inquiries.
(1) The NCR psychiatric assessment
[20] On August 22, 2017, the Court, on its own motion, ordered a psychiatric assessment to determine whether Basil Borutski suffered from a mental disorder at the time of the offences so as to exempt him from criminal responsibility by virtue of s. 16 of the Criminal Code.
[21] On September 7, 2017 Dr. Kunjukrishnan the psychiatrist assigned to conduct the assessment, wrote the Court and indicated in part the following:
After Mr. Borutski was brought to my office, I introduced myself to Mr. Borutski. I also explained to Mr. Borutski the purpose of this assessment and the limits of confidentiality. Mr. Borutski did not say a single word in response to my explanations and questions. In fact, he avoided any eye contact with me. He was looking out through the window of my office.… I explained to him the purpose of this meeting. I asked several times if he was going to respond to any of my questions, or if he wished to say anything. He did not respond verbally at all there was no change in his facial expression or demeanour. After about 15 minutes, I advised Mr. Borutski that I was going to terminate the session. Again, there was no response of any kind, verbally or physically.… I am not able to make any comments on Mr. Borutski’s mental condition at the time of the alleged offences.
[22] This decision not to participate in the court ordered assessment rendered the already remote possibility of an NCR defence no longer a viable issue for consideration.
(2) The role of amicus curiae in this case
[23] As indicated, Basil Borutski did not, to any significant degree, actively participate in his trial. He was unresponsive to anything said by the Court; he seemed disinterested. He did not make submissions or comment on any of the preliminary issues. He consciously ignored the Court. This behaviour triggered the question of the nature of the role of amicus.
[24] In Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 SCR 3, the Supreme Court of Canada cautioned against appointing amicus curiae to act as defence counsel in criminal trials. Karakatsanis J. for the majority set out the following concerns and limitations on the role of amici at paras. 50-56:
Amici as Defence Counsel
[50] The issue of whether it was appropriate to appoint amici to effectively act as defence counsel was raised by the Attorney General of Quebec and the Attorney General of British Columbia, who were interveners in this Court. It was not challenged by the Attorney General of Ontario. However, to the extent that the terms for the appointment of amici mirror the responsibilities of defence counsel, they blur the lines between those two roles, and are fraught with complexity and bristle with danger.
[51] First, the appointment of amici for such a purpose may conflict with the accused’s constitutional right to represent himself (see R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933, at p. 972).
[52] Second, it can also defeat the judicial decision to refuse to grant state-funded counsel following an application invoking the accused’s fair trial rights under the Charter. For instance, by expanding the role of the amicus, first to act as though he was defending a client who remained mute, and later to take instructions from the accused, the trial judge in Imona Russel undermined the court’s earlier decisions to deny state-funded defence counsel.
[53] Third, there is an inherent tension between the duties of an amicus who is asked to represent the interests of the accused, especially where counsel is taking instructions, as in Imona Russel and Whalen, and the separate obligations of the amicus to the court. This creates a potential conflict if the amicus’ obligations to the court require legal submissions that are not favourable to the accused or are contrary to the accused’s wishes. Further, the privilege that would be afforded to communications between the accused and the amicus is muddied when the amicus’ client is in fact the trial judge.
[54] Thus, it seems to me that this current practice of appointing amici as defence counsel blurs the traditional roles of the trial judge, the Crown Attorney as a local minister of justice and counsel for the defence. Further, the use of amici to assist a trial judge in fulfilling her duty to assist an unrepresented accused might result in a trial judge doing something indirectly that she cannot do directly. While trial judges are obliged to assist unrepresented litigants, they are not permitted to give them strategic advice. Where an amicus is assigned and is instructed to take on a solicitor-client role, as in Imona Russel and Whalen, the court’s lawyer takes on a role that the court is precluded from taking.
[55] Finally, there is a risk that appointing amici with an expanded role will undermine the provincial legal aid scheme. In this case, the Ontario legislature had passed the Legal Aid Services Act, 1998, S.O. 1998, c. 26, which provides for the representation of indigent accused. The inherent or implied jurisdiction of a court cannot be exercised in a way that would circumvent or undermine those laws. Absent a constitutional challenge, the judicial exercise of inherent or implied jurisdiction must operate within the framework of duly enacted legislation and regulations.
[56] For all these reasons, I conclude that a lawyer appointed as amicus who takes on the role of defence counsel is no longer a friend of the court.
[25] These directions have been interpreted to curtail the role of amici to being a friend of the court who is limited to making submissions on points of law so as to be clearly distinguished from the role of defence counsel: see R. v. Al-Enzi, 2014 ONCA 569, at paras. 81-82.
[26] In the case of R. v C.M.L., 2016 ONSC 5332, Molloy J. expanded the role of amicus by distinguishing certain cases or situations from the logical application of the stated principles in Ontario v. C.L.A. Molloy J. indicates the following at paras. 67-68:
[67] The general principles stated by both the majority and minority in Ontario v. C.L.A. are well-known. Amicus should only be appointed in exceptional cases and where necessary in the interests of justice. Clearly, there is a distinction between an amicus appointed by the court and state-funded defence counsel. Equally clearly, there is a well-recognized test for an accused to meet in order to obtain the appointment of a state-funded defence counsel, including a requirement that the right to a fair trial is implicated. It would be improper to circumvent that established authority by appointing amicus and giving those same responsibilities to that lawyer. However, with the greatest of respect, those are not the circumstances in which amicus curiae are appointed. Trial judges typically appoint amicus in those difficult cases where justice simply cannot be done without that assistance. It is impossible to list all the circumstances in which this might arise; the possibilities are infinite. It is also impossible to categorize the types of roles that may be appropriate for an amicus in any given case; those responsibilities will depend on the particular problems that are presented in each case. What is clear to me, however, is that there are cases in which I cannot ensure a fair trial for an accused without the assistance of amicus in an expanded role that goes well beyond making submissions on points of law. The trial of Ms. L. is one of those cases.
[68] The difficulty with the general principles expressed by the Supreme Court in Ontario v. C.L.A. is that they do not address the problems presented by these unusual cases, such as where the accused is mentally ill, but nevertheless fit to stand trial; where the accused refuses to participate in the trial for whatever reason; or where there is a real risk of a wrongful conviction as a result of the manner in which an unrepresented accused is presenting his or her case. It is one thing to say that the trial judge cannot provide strategic advice to an accused. But what of the situation where there is a fatal flaw in the Crown’s case and the accused is unaware of it? Similarly, the trial judge cannot “descend into the arena” in order to cross-examine a key witness or make a jury address. But what of the situation where justice requires that a key witness be cross-examined or where there are things about the accused’s case that could be put to the jury, but the accused either does not know how or refuses to do so?
[27] In expanding the role of amicus in R v. C.M.L., Molloy J. addressed some of the key concerns listed by the Supreme Court of Canada, at paras. 72- 76. Some of her points can be summarised as follows:
a. First, there is no conflict with the right of an accused to choose to represent him or herself, if the accused refuses to participate in the trial.
b. Second, there was no circumvention of the requirement for state-funded counsel, given the accused’s refusal to retain counsel.
c. Third, there was no tension between the amicus taking instructions from the accused and also having a duty to the court. The accused refused to speak to amicus and there was no issue of confidentiality.
d. The principal witness for the Crown would not have been cross-examined at all were it not for the amicus. Amicus did what the judge could not do.
e. The accused, although given the opportunity to make a jury address at the end of the trial, did not use the opportunity to deal with any relevant point. An address by amicus was helpful to strike a balance and ensure a fair trial.
[28] In the proceedings involving Basil Borutski, I came to the conclusion that the role of amicus required involvement well beyond merely arguing points of law. Basil Borutski, for the most part, did not to actively participate at his trial. The extent of his active participation was as follows:
a. On October 19, 2017, the sister of Anastasia Kuzyk, testified. A dramatic 911 call made by her on the day of the incident was played. During her testimony, Basil Borutski tapped on the window of the prisoner’s box asking for a pencil and paper, which were provided. After the completion of the witnesse’s evidence in chief, Basil Borutski again tapped on the window of the prisoner’s box and handed a sheet of paper to Mr. McCann with a list of questions for him to ask the witness. Mr. McCann addressed the court concerning the propriety of this procedure; the Court asked Basil Borutski if he wished to give instructions to Mr. McCann he did not respond. At the suggestion of amicus, Mr. McCann was given the opportunity to speak to Basil Borutski in private to attempt to receive instructions on cross-examining the witness. He did so and ultimately cross-examined the witness.
b. On November 22, 2017, mid-way through the final jury instructions, Basil Borutski was asked if he had any comment about the charge to that point. He responded by complaining about the trial process, about not being given the opportunity to address the jury, about not being given a pencil and paper, and about the Court’s instruction concerning his not being represented. The court, amicus, and the Crown each indicated what the record would reflect.
c. At the end of the jury charge and in the absence of the jury, Basil Borutski was asked if he had any comments on the balance of the charge. He stated, “I am not guilty”.
[29] In this case, the accused’s behavior rendered many of the Supreme Court of Canada’s concerns in C.L.A. about limiting the role of amici inapplicable. Basil Borutski did not speak to Mr. Foord, nor did he instruct Mr. Foord about any issue during the entire trial. He never asked for a lawyer at any time throughout the proceedings, whether legally aided or otherwise. He remained mute at any suggestion concerning the hiring of his own lawyer. He was instructed on trial procedure, including jury selection, and how to represent himself at trial. He did not respond or actively participate except as set out in this decision.
[30] The result was that the role of Mr. Foord as amicus was expanded to include the following:
a. At the pre-trial motions: cross-examine witnesses; make submissions respecting the admissibility of evidence; raise Charter issues; and provide input on procedural issues.
b. At the trial: cross-examine and raise objections as and when it appeared too him to be advisable, within the limits of testing the evidence (his ability to do so was limited by the fact that Basil Borutski remained mute through the entire process making his position on any given issue unknown); act as a guardian to ensure procedural fairness by occasionally reminding the Court to ask Mr. Borutski if he had any questions or any submissions on any issue; give a closing address to the jury.
c. At two pre-charge conferences: participate.
d. At the sentencing hearing: make submissions.
[31] The fact that this accused did not participate in his own defence made the expansion of the role of amicus necessary to be certain that justice was not only done, but also seen to be done. As Molloy J. said in C.M.L., “ours is an adversarial system, which does not work well when one side absolutely refuses to participate”.
[32] I owe a debt of gratitude to Mr. Foord, as this was a difficult matter for an amicus curiae to effectively navigate. His work was at all times excellent, and I thank him for his valuable assistance.
(3) Admissibility of the statement to Detective Sgt. Casey O’Neill
[33] On September 23, 2015, at the Pembroke OPP detachment from the hours of 9:49 a.m. through to 2:40 p.m., Detective Sgt. Casey O’Neill interviewed Basil Borutski.
[34] The Crown sought to have the statement entered into evidence at trial. A voir dire was held on two issues: (a) whether the Crown had established beyond a reasonable doubt that the statement was voluntary; (b) whether the accused’s s. 10(b) Charter rights had been violated, and if so, whether the statement should be excluded pursuant to s. 24(2) of the Charter.
Factual background and timeline leading up to the statement
[35] The following evidence was presented at the admissibility voir dire:
a. Testimony from several police officers, including: the officers involved in the initial arrest; the officers involved in the transportation of the accused; and the officers who processed Basil Borutski up to the interview, including Detective Sgt. Sylvain Archambeault.
b. Audio recordings of conversations with the accused.
c. Video recordings of Basil Borutski in his cell at the Pembroke OPP detachment.
d. The testimony of Detective Sgt. O’Neill, which included the presentation of the audio video recording of the entire interview with Basil Borutski of September 23, 2015.
[36] This testimony and evidence allowed for the following findings of fact:
a. At 2:31 p.m. on September 22, 2015, Basil Borutski was arrested in a field located in Kinburn, Renfrew County. He was initially cautioned by Detective Thompson.
b. At 2:51 p.m., he was escorted out of the field to an Ottawa police cruiser, where he was read his rights to counsel. The officer asked Basil Borutski if he would like to call a lawyer, to which he responded yes.
c. Basil Borutski was then taken from Kinburn to the Arnprior OPP detachment, arriving at approximately 3:53 p.m. The escorting officers noted that Basil Borutski slept in the back seat of the cruiser for part of the time.
d. Basil Borutski was permitted to use the washroom facilities at the detachment to relieve himself. A lead investigator determined that an error in communication had occurred; identification officers responsible for processing Basil Borutski were directed to the Pembroke OPP detachment.
e. At approximately 5:39 p.m., the same two officers transported Basil Borutski from the Arnprior detachment to the Pembroke detachment. The police officers observed that he slept part of the time he was transported between the two detachments.
f. Basil Borutski arrived at the Pembroke detachment at 6:39 p.m. At 7:01 p.m., his hands were bagged, as he was to be processed for gunshot residue. The bags were then removed from his hands, his nails were clipped, and skin swabs were taken. He was moved to his cell at 7:21 p.m.
g. At 7:24 p.m., Detective Sgt. Archambeault took steps to have Basil Borutski contact a lawyer. Detective Sgt. Archambeault woke him up and provided him with a list of lawyers. Basil Borutski appeared sleepy; the detective asked if he would like to contact legal aid, and what he would like to do. Basil Borutski responded “sleep” and that he “didn’t know”
h. Detective Sgt. Archambeault provided Basil Borutski with a magnifying glass to assist him in being able to read the list of lawyer’s names, as the police had seized his eyeglasses as evidence. He appeared to go back to sleep and seemed disinterested in exercising his right to speak to a lawyer.
i. At 8:51 p.m., Detective Sgt. Archambeault took it upon himself to call Legal Aid Ontario. He indicated to Legal Aid Ontario that the allegations and charges were very serious and he decided to facilitate Basil Borutski’s right to consult counsel despite the accused’s apparent disinterest.
j. At 9:09 p.m., Basil Borutski was woken up so that he could speak to Legal Aid Ontario duty counsel. He appeared sleepy.
k. At 9:10 p.m., he was placed in a private booth and approximately six minutes later, he knocked on the door asking to be removed.
l. Basil Borutski told Detective Sgt. Archambeault that the lawyer told him to “go back to sleep”. He was not asked if he was satisfied with the lawyer’s advice.
m. Basil Borutski was put back in his cell. The list of lawyers and magnifying glass were removed. At 11:39 p.m., he was removed from the cell for further processing, and was returned to his cell at 11:56 p.m.
n. He then slept for approximately seven and a half hours.
o. The following morning, September 23, 2015, at approximately 9:49 a.m., Detective Sgt. Casey O’Neill asked Basil Borutski if he would like to contact counsel. At this point, Basil Borutski responded that he did not want to “talk to any crooks”, and that there was “no point, I guess”.
p. The interview shows the accused to be of an operating mind. There are no threats or inducements made by the interrogator at any stage in the process.
q. Early in the interview with Basil Borutski, Detective Sgt. O’Neill discusses the fact that Basil Borutski spoke to a lawyer on the previous evening. At various times, Detective Sgt. O’Neill asks him if he would now like to speak to a lawyer. Detective Sgt. O’Neill specifically asks the following: “The next thing I want to do is make sure that your rights are available to you and understood by you so I know that you talked to a lawyer yesterday but yesterday was yesterday today’s a new day and things may have changed for you in your mind and I want to make sure that I’m still giving you that opportunity if you want to exercise it and you said you don’t want to right now if you change your mind down the road you let me know and I’ll make that call happen for you is that fair enough sir?”
r. Basil Borutski does, from time to time, complain about not being fed, his health (sore back), and his need for medicine and to speak to a doctor. He is offered food, water, and cigarettes by Detective Sgt O’Neill at various times throughout the interview.
s. About mid-way into the interview, the accused opens up and gives long detailed answers to the questions asked.
t. I accept Detective Sgt O’Neill’s evidence that had the accused been in any serious medical distress, a doctor would have been provided.
u. It appears to me, that the last two hours of the interview show an individual who is not in any form of physical distress, and who is enthusiastically providing answers.
Has the Crown established that the statement was voluntary?
[37] The Crown has the onus of establishing beyond a reasonable that a statement given by an accused to a person in authority was voluntary.
[38] In R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, the Supreme Court of Canada established the current state of the law relating to the voluntariness of confessions. In the Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015) David M. Paciocco and Lee Stuesser describe the Oickle rule in the following manner at p. 346:
The heart of the law is captured in the following general proposition:
In order for most statements made to a person in authority to be admissible the Crown must establish beyond a reasonable doubt in light of all the circumstances that the will of the accused to choose whether to speak has not been overborne by inducements, oppressive circumstances, or the lack of an operating mind. In addition, there must not be police trickery that unfairly denies the accused’s right to silence.
[39] While the accused initially complained about his treatment and need for medication, when considering the interview and statement as a whole, the accused seemed to have a very strong desire to speak. In much of the interview, he shows a strong desire to explain his actions as a means of justifying why he killed three victims. Basil Borutski is of an operating mind. He logically answers the questions. He justifies and offers explanations for why he did what he did, and at various times during the interview, he chastises the interrogator for interrupting him. There were no impermissible inducements made at any time during the interview.
[40] While there were complaints made during the interview by the accused concerning his lack of food and water and his medical condition, he is offered food, water, and cigarettes. His medical condition did not require any immediate attention. The answers he gave to the questions he was asked were not given because he was oppressed. At no time was his will overborne.
[41] I am satisfied beyond a reasonable doubt that the statement was given voluntarily.
Charter s. 10(b) issue
[42] Mr. Foord, in his capacity as amicus curiae, advanced two grounds in support of the argument that Basil Borutski’s s. 10(b) Charter rights were violated. First, that the accused’s rights were violated when he was not provided with a reasonable opportunity to consult with counsel until approximately five hours after his arrest. Second, that the accused’s rights were violated when the police interrogated him without a proper warning regarding their obligation not to obtain incriminating information from him until he waived his right to consult with a lawyer. Mr. Foord suggested that the statement be excluded under s. 24(2). Section 10(b) states:
Everyone has the right on arrest or detention
a) to be informed promptly of the reasons therefor;
b) to retain and instruct counsel without delay and to be informed of that right; and
c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
[43] The first ground relates entirely to the amount of time it took from the point of arrest to the point that the accused was afforded the opportunity to speak to a lawyer. The total time is approximately five hours. In R v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 42, the Supreme Court of Canada offered the following interpretation of the meaning of “without delay” in the context of s.10 (b):
[42] To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill‑defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill‑defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words “without delay” mean “immediately” for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s.1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.
[44] The police have two specific obligations under s. 10(b): one is to inform the accused of the right to instruct and consult counsel without delay, and the second is to implement the accused’s ability to do so in a given case.
[45] The Ontario Court of Appeal has held that the question of compliance with the duty to implement the right under s. 10(b) turns on the facts of each case: see R. v. Devries, 2009 ONCA 477, 95 OR (3d) 721, at para. 31.
[46] There are a number of reasons that explain the delay in the circumstances of this case, including: the place where the accused was arrested (an open field) miles away from the police station; the magnitude of the investigation of three murders involving three different crime scenes; the need to correctly process the scene of arrest; and physical evidence from the accused; and finally, the geographic location of the Pembroke police detachment.
[47] The difficulty here is that five hours is an inordinate amount of time. While the delay is carefully and logically explained, I cannot find that it is on the whole justified, even in the unusual circumstances of this case. Thus, I find that the accused right to consult without delay was technically violated, and that a breach occurred on this ground.
[48] I use the term “technical violation”, because in this case, the police did not attempt to elicit a statement before providing the accused with an opportunity to consult a lawyer. It is fair to say that the fundamental purpose of the right is to allow an accused the opportunity to obtain advice so as to make an informed decision to speak to the police. This opportunity, although delayed, was given to the accused.
[49] I would not give effect to the second ground raised by Mr. Foord. I do not find, on a balance of probabilities, that Basil Borutski was insufficiently cautioned prior to being interrogated so as to constitute a breach of his rights under s. 10(b).
[50] On September 22, 2015, at 7:24 p.m., Basil Borutski spoke to a lawyer prior to ever speaking to Detective Sgt. O’Neill. Furthermore, on the morning of September 23, 2015, Detective Sgt. O’Neill offered Basil Borutski a further opportunity to consult with counsel; he simply chose not to do so.
[51] Furthermore, the evidence supports the proposition that Basil Borutski seemed fully aware of what he was giving up. There are several instances early on during the course of the interview where Basil Borutski discloses a keen understanding of the process. For example, at one point he tells the interrogator “you’re here trying to get me to say something to incriminate me in any way you possibly can”, and when asked if he knows his rights he indicates, “you mean the remain silent that thing”.
[52] Considering the interview as a whole, Detective Sgt. O’Neill took the necessary steps to assure himself that the accused understood that he had the right to speak and consult with a lawyer, and that he was giving up that right by answering the questions during the course of the interrogation.
Section 24(2) analysis
[53] Once a breach of a Charter right has been found the inquiry as to the exclusion of evidence does not end. The court must then engage upon an analysis under s. 24(2), which indicates:
24(2) Where, in proceedings under subsection 1, a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all of the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[54] The s. 24(2) analysis is governed by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. In Grant, the Supreme Court of Canada instructs that when faced with applications for exclusion under s. 24(2), a trial court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct, (2) the impact of the breach on the Charter-protected interests of the accused, and (3) society’s interest in the adjudication of the case on its merits.
Seriousness of the Charter-infringing state conduct
[55] The seriousness of the breach requires assessing the blameworthiness of the conduct of the state. The focus in this case would be the conduct of the police officer. In Grant, the court recognizes that good faith by a police officer will “reduce the need for the court to dissociate itself from the police conduct”, while “wilful or flagrant disregard of the Charter by those very persons that are charged with upholding the right in question may require the court to disassociate itself from such conduct” (at para. 75).
[56] In this case, the police acted in good faith. The delay in affording the accused the opportunity to instruct counsel was in some measure beyond their control. Detective Sgt. Archambeault ultimately went out of his way to allow Basil Borutski to speak to a lawyer prior to his interview. In so doing, he showed a high degree of integrity and good faith. Detective Sgt. O’Neill also showed good faith by reminding the accused of his right to counsel, and by telling him that the opportunity to speak to a lawyer would be given if he desired to do so.
[57] While a breach occurred in that five hours is too long to be given the opportunity to instruct and speak to counsel, the overall conduct of the police throughout militates towards admission rather than exclusion under the Grant s. 24(2) analysis.
Impact on the Charter protected interest of the accused
[58] A confession/statement is a type of evidence that is presumptively excluded when a Charter breach occurs. This is particularly so in cases where the evidence obtained and the Charter violation are causally connected, or in situations where, but for the breach, the evidence would not have been obtained.
[59] In this case, the delay in affording the accused the opportunity to speak to counsel had a minimal impact on the evidence received, as Basil Borutski exercised the right to counsel before providing the statement.
[60] The impact against the Charter protected interest here also militates in favour of admission.
Society’s interest in the adjudication of the case on the merits
[61] The admission of the statement is not a prerequisite to the Crown proving the offences in this case. However, it is a very important part of their case in terms of establishing all of the elements of first-degree murder beyond a reasonable doubt on each count. The statement provides evidence of motive, and of planning and deliberation.
[62] In the case at bar, the Crown has eyewitness evidence, forensic evidence, and other admissions. Although I cannot say that Basil Borutski’s statement to Detective Sgt. O’Neill is essential to the Crown’s case, it certainly is very important in all the circumstances. Thus, when considering the third line of inquiry in the s. 24(2) Grant analysis, the balance leans towards admission.
[63] Therefore, the application is by amicus curiae is dismissed. I find that, when applying the Grant analysis to the facts of this case, the admission of the statement into evidence would not bring the administration of justice into disrepute.
The Honourable Mr. Justice Robert L. Maranger
Released: December 29, 2017
CITATION: R. v. Borutski, 2017 ONSC 7748
COURT FILE NO.: 10-RM1896
DATE: 2017/12/29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
BASIL BORUTSKI
Reasons for rulings on pre-trial motions
Maranger J.
Released: December 29, 2017