Court and Parties
DATE: 20180628 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – JEAN GUY THIBEAULT
Counsel: Daniel Brandes and Corie Langdon for the Crown Ashley Audet and Sharon Jeethan for Jean Guy Thibeault
Reasons for Ruling re Admissibility of the Defendant’s Statement
MacDonnell, J.
[1] On May 7, 2018 the defendant Jean Guy Thibeault came before this court for trial on an indictment charging him with the second degree murder of Kenneth McGowan and the aggravated assault of Darren Tobias. As part of the evidence at the trial, Crown counsel proposed to adduce certain utterances that the defendant was alleged to have made to Detective Caracciolo in the cell area of 54 Division at about 9:15 p.m. on April 9, 2015, about 4½ hours after the defendant’s arrest. Prior to the selection of a jury, a voir dire was conducted to determine whether those utterances were admissible in evidence.
[2] In order for utterances made by a defendant to a person in authority to be admissible at the instance of the Crown, the Crown must prove beyond a reasonable doubt that the utterances were voluntary. The position of the defence was that the Crown had not met its burden in that respect. In the alternative, the defence submitted that the utterances should be excluded pursuant to s. 24(2) of the Charter because they were obtained in a manner that infringed the defendant’s rights under ss. 10(a) and 10(b) of the Charter and to admit them could bring the administration of justice into disrepute. The Crown conceded a violation of s. 10(b), but submitted that the utterances should not be excluded.
[3] On May 9, at the conclusion of the voir dire, I held that the Crown had proved that the utterances were voluntary and that the defendant had not established an infringement of s. 10(a) of the Charter. However, I further held that the defendant had established that, by reason of the infringement of s. 10(b), to admit the utterances into evidence could bring the administration of justice into disrepute. Accordingly, I ruled that the utterances were inadmissible.
[4] At the time of the ruling, I delivered oral reasons for my decision and indicated that I would expand upon the reasons in writing. These are those expanded reasons.
The Material Facts
[5] At 3:35 p.m. on April 9, 2015, a 911 call was received in relation to an assault on Darren Tobias that was alleged to have been committed by the defendant in apartment 312 at 444 Lumsden Avenue in Toronto. At 4:47 p.m., Police Constable Kung located the defendant in a ground floor apartment of a building close by 444 Lumsden and he was placed under arrest for assault. Constable Kung did not indicate to the defendant who it was that he was alleged to have assaulted. Kung took the defendant outside and placed him in the rear seat of a police cruiser where he read him his rights to counsel. At the conclusion of the recitation of rights, Kung asked the defendant two questions: Do you understand? Do you wish to call a lawyer now? The defendant answered “Yes” and “yeah” to those questions. He told Constable Kung that he had a lawyer, but he refused to say who the lawyer was. Kung then cautioned the defendant that he was not obliged to say anything and that anything he did say might be given in evidence. The defendant mumbled something that did not appear to be responsive to the caution.
[6] The defendant was transported to 54 Division, arriving at about 5:30 p.m. Upon arrival, he was paraded before the booking sergeant. Kung told the sergeant: “We have Jean Thibeault here, he’s under arrest for assault right now, he was given his rights, cautioned as well, he does understand…” Although it was clear from what he had told Constable Kung in the police cruiser that the defendant wished to exercise his right to consult counsel without delay, Kung said nothing about that. The sergeant did not ask Constable Kung whether the defendant had asked to speak to a lawyer nor did he ask the defendant whether he wished to do so. The sergeant then embarked on the routine questions that are asked of persons being booked into a police station. Some of those questions the defendant chose to answer and some he did not. At the end of the process, the sergeant said:
You understand that you have been placed under arrest for assault…Yeah, that’s it for now, and you understand you have the right to call a lawyer, right, the officers explained your right to counsel, you can call a lawyer, and if you don’t have a lawyer we can put you in touch with Legal Aid and you can talk to duty counsel. You understand all that?
[7] The defendant did not answer the question and the sergeant did not wait for an answer. Within a second – literally – the sergeant had moved on to address an officer who had just walked into the room and began an explanation of the level 3 search that was to be conducted. The sergeant never came back to the subject of the defendant’s right to counsel. He never asked the defendant whether he wanted to call a lawyer. The inference I draw is that as far as the sergeant was concerned the booking process was over. Notably, at the time when the sergeant was reminding the defendant of his right to speak to counsel, Constable Kung did not take the opportunity to tell the sergeant that the defendant had already asserted a desire to speak to counsel.
[8] The level 3 search followed. There is no doubt that the defendant became uncooperative and belligerent in the course of the search. He urinated on the floor. He bit one of the officers. After the officers managed to complete the search the defendant was taken immediately to the cells. Once inside a cell he began to jump onto and off the steel bench. He remained in the cells for the next 2½ hours, until 8:26 p.m., at which time he was brought back to the booking area for the purpose of taking photographs and seizing his clothing. Constable Kung was one of the officers who assisted in this regard. In contrast to his demeanor at the time of the search, the defendant was calm, quiet and compliant. The process took ten minutes. The defendant was then returned to his cell.
[9] At an early stage, Detective Caracciolo had taken over the investigation of the assault alleged by Darren Tobias. He quickly became aware that when the first officers to respond to Tobias’s complaint arrived on the third floor of Tobias’s apartment building they discovered the badly beaten body of Kenneth McGowan lying unconscious in the elevator corridor. Detective Caracciolo insisted that in the hours that followed this discovery he did not regard the defendant as a suspect in that matter.
[10] Shortly after 9 p.m. Detective Caracciolo decided that the time had come to attempt to interview the defendant in relation to the charge of assaulting Tobias. He proceeded into the cell area with his partner Detective Cechetto and Officer Wright. Caracciolo had no information with respect to what had been said to the defendant at the time of his arrest about his right to counsel or what had been said in that regard at the time of the booking. He had no information with respect to whether the defendant had asked to speak to counsel or whether he had in fact done so. He did not make any inquiries with respect to those matters because he assumed that by this point the defendant would have spoken to counsel.
[11] Detective Caracciolo testified that when he came to the defendant’s cell he found the defendant lying on the bench, looking calm and resolute. Detective Caracciolo introduced himself and said: “I would like to take you to speak about the incident that happened today.” He said that the defendant brushed his hair from his face, sighed, and said “I didn’t kill anybody today, did I?” Detective Caracciolo asked: “Why would you say that?” The defendant replied: “Because it would be bad.” Detective Caracciolo responded: “Yes it would.”
[12] Detective Caracciolo testified that he had not expected the utterance that the defendant had made and that he was shocked by it. At that point he asked Officer Wright whether the defendant had spoken to duty counsel and learned for the first time that he had not. Accordingly the defendant was put into a private room and access to duty counsel was facilitated.
Voluntariness
[13] In order for a statement made by a defendant to a person in authority to be admissible at the instance of the Crown, the Crown must prove beyond a reasonable doubt that the statement was voluntary. The assessment of voluntariness is contextual and case-specific. While all of the circumstances surrounding the making of the statement will be relevant, of prime concern will be whether the statement was induced by hope of advantage or fear of prejudice emanating from the police in the form of promises, threats or other mistreatment, whether the statement was obtained in oppressive circumstances, whether the maker of the statement had an operating mind, and whether the police employed improper trickery. These concerns are not separate tests but rather factors than may operate together to undermine confidence in the voluntariness of a statement.
[14] I am satisfied that the voluntariness of the utterances made to Detective Caracciolo by the defendant should not be doubted on the basis of any of those concerns. The arrest of the defendant by Constable Kung had proceeded without incident. The defendant was treated in a professional manner by the booking sergeant. A physical altercation erupted at the conclusion of the booking process, but the altercation was precipitated by the defendant’s refusal to submit to a lawful search and by his assaultive behaviour towards the officers tasked with the duty to conduct that search. There has been no suggestion that excessive force was used. The defendant was behaving in an unusual manner consistent with the effects of recent drug use but by 8:26 p.m., when the FIS officer seized the defendant’s clothing, he was calm and compliant. He was also calm and compliant when Detective Caracciolo approached him in the cells shortly after 9 p.m. By that point, the effects of whatever it was that had given rise to his earlier behaviour had dissipated.
[15] The defendant’s position that the Crown has failed to prove voluntariness rests on a relatively narrow and discrete foundation, namely that the defendant was deprived of the information he needed in order to make a meaningful choice with respect to whether to speak to Detective Caracciolo. Specifically, the defendant submits that for 4½ hours the police failed to respond to the defendant’s assertion of a desire to speak to a lawyer and that Caracciolo never told the defendant that he was a suspect in the assault on Kenneth McGowan. When combined with the evidence of the defendant’s behaviour at the time of the booking, the defence submits that there is a reasonable doubt with respect to the voluntariness of what the defendant said to Caracciolo.
[16] I am satisfied that the defendant was not deprived of the ability to make a meaningful choice as to whether to speak to the police. Whether or not Detective Caracciolo had a basis for suspecting that the defendant was responsible for the assault on Mr. McGowan, his intention was to question him only in relation to the matter for which he had been arrested and with respect to which he had been cautioned. The defendant’s selective responses to the questions asked at the time of booking demonstrate his awareness that he was under no obligation to speak to the police. At the time he spoke to Detective Caracciolo he was no longer exhibiting strange behaviour. While it is conceded that the police failed in their obligation to facilitate the defendant’s access to legal advice, this failure did not undermine the defendant’s ability to choose whether to speak to Detective Caracciolo.
[17] I am satisfied that the Crown has proved beyond a reasonable doubt that the defendant’s utterances to Detective Caracciolo were voluntary.
Section 10(a) of the Charter
[18] Section 10(a) of the Charter provides that “everyone has the right on arrest or detention to be informed promptly of the reasons therefor”. In R. v. Evans, [1991] 1 S.C.R. 869, at paragraph 31, McLachlin J. described the purposes of this guarantee as follows:
The right to be promptly advised of the reason for one's detention embodied in s. 10(a) of the Charter is founded most fundamentally on the notion that one is not obliged to submit to an arrest if one does not know the reasons for it: R. v. Kelly (1985), 17 C.C.C. (3d) 419 (Ont. C.A.), at p. 424. A second aspect of the right lies in its role as an adjunct to the right to counsel conferred by s. 10(b) of the Charter. As Wilson J. stated for the Court in R. v. Black, [1989] 2 S.C.R. 138, at pp. 152-53, "[a]n individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy". In interpreting s. 10(a) in a purposive manner, regard must be had to the double rationale underlying the right.
[19] At the time of his arrest by Constable Kung, the defendant was promptly told that he was being arrested for assault. Based on what he was told the defendant submitted to the arrest and made a decision to exercise his right to speak to a lawyer. There was no infringement of his rights under s. 10(a). The reason for his detention never changed prior to the interaction with Detective Caracciolo and thus s. 10(a) did not require that the defendant be provided with any further information about the reason.
Section 10(b) of the Charter
[20] For more than 30 years it has been settled that s. 10(b) of the Charter requires the police not only to inform a detainee of the right to retain and instruct counsel without delay but also to provide a reasonable opportunity to exercise that right and to cease questioning or otherwise attempting to elicit evidence from the detainee until a reasonable opportunity has been provided. The duty to provide a reasonable opportunity to consult counsel carries with it a duty to facilitate contact with counsel: R. v. Manninen, [1987] 1 S.C.R. 1233, at paragraphs 20 to 21; R. v. Taylor, 2014 SCC 50, paragraphs 24 to 26.
[21] At the time of his arrest by Constable Kung, at 4:47 p.m., the defendant had clearly asserted a desire to speak to counsel. Immediately upon the making of that assertion, Constable Kung was “under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity”: Taylor, at paragraph 24. The burden is on the Crown to show that any delay was reasonable in the circumstances.
[22] At no point prior to Detective Caracciolo’s attendance in the cells was the defendant given an opportunity to speak to counsel. At no point did the defendant indicate that he no longer wished to speak to counsel. The Crown concedes that the police failed in their duty to facilitate access to counsel at the first reasonable opportunity, that the defendant’s s. 10(b) rights were infringed, and that the defendant’s utterances to Detective Caracciolo were obtained in a manner that infringed those rights.
[23] The Crown’s position is that the infringement did not occur prior to 8:26 p.m., when the defendant was taken from his cell to be photographed by the FIS officer and to have his clothing seized. The Crown submits that this was the first reasonable opportunity to put the defendant in contact with counsel. I accept that an initial delay until the conclusion of the booking process would not have been unreasonable, and that because of the defendant’s belligerent behaviour at the time of the level 3 search a second delay for some period beyond the end of the booking process was justified. However, the Crown has not shown why access to counsel could not have been facilitated at some point prior to 8:26 p.m. I infer that there is no evidence as to whether access could have been facilitated at an earlier point because no one gave any thought to putting the defendant in touch with counsel. It was not something that was on the agenda.
Section 24(2) of the Charter
[24] Although a breach of s. 10(b) is conceded, the Crown submits that the defendant has not met his burden of showing that to admit the evidence of what he said to Detective Caracciolo could bring the administration of justice into disrepute.
[25] The determination of whether the administration of justice could be brought into disrepute requires the court to assess the effect of admitting the evidence on society’s confidence in the justice system having regard to the seriousness of the Charter-infringing conduct, the impact of the breach on the Charter-protected interests of the accused, and society’s interest in an adjudication of the case on its merits.
(a) The seriousness of the violation
[26] The concern at the core of this consideration is the extent to which admitting evidence obtained in a manner infringing a defendant’s rights might send a message that the justice system condones the infringing conduct. “The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct in order to preserve public confidence in and ensure state adherence to the rule of law”: R. v. Grant, 2009 SCC 1, at paragraph 72.
[27] At 4:47 p.m. the defendant informed Constable Kung that he wished to exercise his right to speak to a lawyer. Kung completely ignored that wish. At no point over the several hours that followed did Kung make any effort to facilitate access to counsel. He compounded his failure in this respect when he told the booking sergeant that the defendant had been given his rights but omitted that he had asserted a desire to speak to a lawyer. The booking sergeant made no inquiry of either Kung or the defendant with respect to whether the defendant wished to speak to counsel. Detective Caracciolo also made no inquiry of anyone in that respect. And so it was that 4½ hours after the obligation to facilitate access to counsel at the first reasonable opportunity had crystallized, no one had yet given any thought to complying with the obligation.
[28] I accept that Detective Caracciolo was unaware that the defendant had not been provided with an opportunity to consult with counsel. However, his lack of awareness does not mitigate the seriousness of the breach. At most, it is the absence of a circumstance that would have significantly aggravated it. Having said that, Detective Caracciolo must bear some responsibility for the fact that he found himself attempting to elicit evidence from a detainee who had not yet been afforded an opportunity to speak to a lawyer. It may not have been unreasonable for Caracciolo to have assumed that the arresting officer and the booking sergeant had informed the defendant of his right to consult with a lawyer. However, it was not reasonable for Caracciolo to fail to inquire whether the defendant had requested to speak to counsel and, if he had, whether he had done so. Informing detainees of their s. 10(b) rights is a routine part of every arrest and booking; facilitating access to counsel is not. It is not uncommon for there to be a delay before counsel can be contacted. It did not occur to Caracciolo to determine what the situation was in this case.
[29] In all the circumstances I regard the breach of the defendant’s right to counsel as serious. This factor points toward exclusion.
(ii) Impact of the breach on the interests of the defendant
[30] The failure to facilitate the defendant’s access to counsel had a significant impact on his Charter-protected interests. It not only prevented him from obtaining legal advice in relation to his right to silence and the principle against self-incrimination, just as importantly it prevented him from receiving advice on how to exercise his rights.
[31] It cannot be inferred that the exchange in the cells would inevitably have occurred had the defendant been afforded access to counsel, or that it would have unfolded in the manner that it did. The Supreme Court of Canada has repeatedly cautioned against speculating as to whether self-incriminatory evidence would have been obtained notwithstanding a violation of s. 10(b): see, e.g., R. v. Black, [1989] 2 S.C.R. 138, and R. v. Elshaw (1991), 67 C.C.C. (3d) 92, at 128. The need for caution in this regard is engaged even if, as the Crown would have it, the defendant’s utterances were to be characterized as spontaneous. It cannot be assumed that the defendant would have been making spontaneous utterances to the police had he had the benefit of a lawyer’s advice in relation to the right to silence. In any event, however, I do not accept that the utterances were spontaneous in any relevant sense. I acknowledge that Detective Caracciolo had not asked a question about what had happened that day, and that he was not looking for a response about what had happened, but what the defendant said was directly related to what Caracciolo said. Caracciolo told him they wanted to take him to talk about what happened, and the utterance was about what happened.
[32] A consideration of the second Grant factor also points in the direction of exclusion.
(iii) Society’s interest in an adjudication on the merits
[33] The third line of inquiry focuses on whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. The fact that the evidence may facilitate the discovery of the truth and the adjudication of a case on its merits must be weighed against factors pointing to exclusion in order to balance the interests of truth with the integrity of the justice system. “The court must ask ‘whether the vindication of the specific Charter violation through the exclusion of evidence extracts too great a toll on the truth-seeking goal of the criminal trial’…": Grant, at paragraph 82.
[34] The importance of the evidence to the prosecution's case is a factor that bears upon the determination of whether exclusion ‘extracts too great a toll’ on the interest of society in an adjudication on the merits. The defendant’s utterances are of value to the prosecution in relation to both the issues of identity and intent, although there are competing inferences available to be drawn from the utterances. I would characterize the evidence as important but not crucial. Its exclusion would not undermine the viability of the prosecution.
Conclusions re s. 24(2)
[35] In Grant, the Supreme Court observed that while there was no absolute rule, courts applying the pre-Grant s. 24(2) analysis had tended to exclude statements obtained in breach of the Charter. The Court concluded, at paragraphs 91-92, that the ‘new’ approach sanctioned in Grant continues to “support the presumptive general, although not automatic, exclusion of [such] statements… .”
In this case, the breach of the defendant’s right to counsel was serious and it had a significant impact on the interests the right was meant to protect. Exclusion of the evidence would have a moderately adverse impact on the public’s interest in a trial on the merits. On balance, I conclude that the defendant has established that the admission of his utterances to Detective Caracciolo could bring the administration of justice into disrepute.
[36] Accordingly, the utterances were excluded.
MacDonnell, J.