Court File and Parties
Court File No.: CR-16-1527 Date: 2018-09-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN A. Mountjoy, for the Crown
- and -
DANIEL VELDMAN D. Holmes, for the defence
HEARD: August 9, 2018, at Brampton
RULING ON VOLUNTARINESS and CHARTER VOIR DIRE
André J.
[1] The Crown seeks a ruling that Mr. Daniel Veldman’s videotaped statement to the police was voluntary while Mr. Veldman seeks a finding that the interviewing officer violated his s. 10(b) Charter rights. Following the testimony of Constable Andrew Reid, the officer who interviewed Mr. Veldman on March 12, 2015, Mr. Veldman’s counsel conceded that the Crown had proven beyond a reasonable doubt that Mr. Veldman’s statement was voluntary.
Background Facts
[2] The police charged Mr. Veldman with two counts of bestiality, one count of extortion, two counts of sexual assault and three counts of uttering threats, following a complaint from his former girlfriend. The arresting officer read Mr. Veldman his rights to counsel and caution. Mr. Veldman was again read his rights to counsel and then cautioned by Constable Reid. Mr. Veldman spoke to duty counsel. He requested to speak to his own counsel, Roy Kellogg, who Mr. Veldman advised was an immigration lawyer. Mr. Veldman asked Constable Reid to call his new girlfriend for Mr. Kellogg’s telephone number. The officer gave uncontradicted evidence that he called the number received from Mr. Veldman’s girlfriend three times without getting any response. The officer then did a Google search of Mr. Kellogg’s name and obtained another number. Constable Reid twice called this second number but again got no response. He then related this to Mr. Veldman. The officer later found out that Mr. Kellogg was an immigration consultant rather than a lawyer.
[3] After the officer told Mr. Veldman that he was unsuccessful in his efforts to contact Mr. Kellogg, Mr. Veldman insisted on giving a statement to the officer, even after being offered another opportunity to speak to duty counsel. On one occasion Mr. Veldman advised the officer that: “I’m fine to do the interview right now.” On another occasion, he told Constable Reid:
I was told not to talk to you by the [duty counsel] lawyer. I am talking to you.
[4] On at least five occasions, the officer stopped Mr. Veldman from giving a statement before he had fully apprised Mr. Veldman of his rights to counsel.
[5] Mr. Veldman gave an exculpatory statement and vehemently denied assaulting or threatening the complainant in any way.
Applicant’s Position
[6] Mr. Veldman’s counsel submits the following:
- Upon making the initial call to the Applicant’s counsel of choice, it was available to Constable Reid to inform the Applicant that he had the option of waiting a reasonable period of time before trying again. It was also open to him to inquire about alternative means of contacting the Applicant’s counsel of choice. He did neither of those things.
- There was nothing particularly urgent about the situation. It was not a situation where the police investigation would have been compromised by waiting a period of time before continuing with the statement.
- Furthermore, while Constable Reid continued to explain to the Applicant that he had the option of speaking to another lawyer, at no point did he make it clear to the Applicant that he was entitled to a reasonable opportunity to exercise his right to counsel of choice or otherwise and that the police were required to hold off on asking questions during that time period.
- In the absence of exigent circumstances there was no reason for Constable Reid not to have taken the time to make it clear to the Applicant what his rights were in the circumstances and to ensure that he had an understanding of those rights before any decision was made to proceed with the interview.
Analysis
The Applicable Law
[7] Section 10(b) of the Canadian Charter of Rights and Freedoms provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.
[8] Anyone who is arrested or detained must be informed of his or her rights to counsel under section 10(b) of the Charter. This “informational” right includes an obligation to advise a detainee how to contact duty counsel and legal aid: R. v. Bartle, [1994] 3 S.C.R. 173, at paras. 21 to 23.
[9] An arresting or interviewing officer is obliged to provide a detainee with a reasonable opportunity to retain and instruct counsel: see R. v. Manninen, [1987] 1 S.C.R. 1233 at para. 21. To be meaningful, reasonable access to a lawyer’s advice must be granted before a detainee is questioned or otherwise required to respond to questions from a state agent: Manninen, at para. 23.
[10] Where a detainee wishes to consult with counsel, he or she must be afforded a reasonable opportunity to speak with his or her counsel of choice in private. If a detainee has expressed a preference to speak with a particular counsel and that counsel is not immediately available, the detainee is entitled to wait a reasonable period for contact from his or her counsel of choice. What constitutes a reasonable period of time is dependent on a number of factors, including the urgency of the investigation, the availability of duty counsel, and the diligence of the detainee in exercising his or her right to counsel: see R. v. Ross, [1989] 1 S.C.R. 3, at para. 16.
Application of the Law to the Facts
[11] Mr. Veldman’s counsel insists that Constable Reid should have put off questioning Mr. Veldman for twenty minutes to half an hour for contact from Mr. Veldman’s counsel of choice. He submits that the officer’s failure to do this resulted in a breach of Mr. Veldman’s s. 10(b) rights and justifies a finding that pursuant to s. 24(2) of the Charter, Mr. Veldman’s statement is inadmissible.
[12] In my view, Mr. Veldman’s application fails for the following reasons:
[13] First, Mr. Kellogg is not a lawyer and Mr. Veldman had no right to speak to a person who was not a lawyer.
[14] Second, the test of reasonableness, as it relates to a detainee’s rights under s. 10(b) of the Charter, must be assessed on a case by case basis: Ross, supra, at para. 16. In this case, Cst. Reid offered to call duty counsel after making five calls to Mr. Kellogg. Mr. Veldman insisted on giving a statement and refused an offer to speak to duty counsel for a second time. His actions unequivocally reflect an intention to provide a statement contrary to the advice he had received from duty counsel. His desire to provide a statement appeared to have stemmed from a belief that he had done no wrong and should not have been charged. Not only did Mr. Veldman not exercise any diligence in exercising his right to consult with counsel, his words clearly suggest that he urgently wanted to tell the officer about the “false allegations” made against him by his ex-girlfriend.
Conclusion
[15] For the above reasons, the application is dismissed.
André J.