Court File and Parties
COURT FILE NO.: CR-17-7000207 DATE: 2018 1106 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – CURTIS (MOKA) DAWKINS Applicant
Counsel: Lindsay Kromm and Maeve Mungovan, for the Respondent Jennifer Penman and Tania Bariteau, for the Applicant
HEARD: September 12, 13, 14, and 18, 2018
APPLICATION #4 APPLICATION PURSUANT TO SS. 10 (b) AND 24 (2) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS TO EXCLUDE STATEMENT
REASONS FOR DECISION
CLARK J.
INTRODUCTION
[1] Curtis (Moka) Dawkins is a transgender person, who identifies as a woman. She is charged with second degree murder in relation to the stabbing death of one Jamie Foster on August 3, 2015. Some hours after her arrest, she made a videotaped statement to D/Sgt. Steve Ryan, of the Toronto Police Service Homicide Squad.
[2] The Crown sought a ruling that the statement was voluntary. Crown counsel made clear in the course of this application that, should the statement be ruled admissible, the prosecution does not intend to adduce it in its case in chief, but, rather, to retain it for purposes of cross-examination should Ms. Dawkins testify.
[3] Ms. Dawkins sought a ruling that the statement was taken following a breach of her right, as guaranteed by s. 10 (b) of the Canadian Charter of Rights and Freedoms (the “Charter”), to consult counsel without delay following her arrest.
[4] To determine these issues, the court embarked on what is frequently known as a “blended voir dire”. When, in the midst of that proceeding, Ms. Dawkins admitted voluntariness, the proceedings continued as an inquiry into whether her s. 10 (b) right had been breached. On September 18, 2018, indicating that I would give reasons as soon as practicable, I held that, despite a relatively minor Charter breach, the statement was admissible. These are those reasons.
POSITION OF THE APPLICANT
[5] It is the applicant’s position that, although she was advised of her right to consult counsel without delay, she was denied the implementational component of her right. That failure was exacerbated, counsel argued, by the police questioning her in what she contends was an investigative manner. Further, when she finally was afforded an opportunity to consult with counsel, the police compromised that opportunity by interrupting her discussion with duty counsel on two separate occasions.
POSITION OF THE RESPONDENT
[6] It is the position of the respondent that there was no s. 10 (b) breach because, having been advised of her right to counsel, the implementational responsibilities of the police were suspended by virtue of the applicant not being sufficiently diligent in seeking to exercise her right.
[7] In the alternative, the respondent submitted that, if the court were to find a breach, the impugned statement was, nonetheless, constitutionally sound by virtue it being taken in circumstances amounting to a fresh start.
[8] In the further alternative, the respondent submitted that the breach was sufficiently minor that, balancing the Grant factors [1], the statement should be admitted.
THE FACTS
[9] On August 3, 2015, Toronto Police Constables Jason Ferreira and Robert Astolfo were on general patrol in 51 Division, in the City of Toronto. At 1:42 a.m., they received a radio call to attend an apartment building, situate at 135 Rose Ave., in relation to what was characterized as “unknown trouble.” A short time later, while still en route, they received a second radio message in which they learned that the incident involved a stabbing.
[10] At 1:46 a.m., Ferreira and Astolfo arrived on scene. Once there, they encountered Ms. Dawkins in a parking lot outside the building. She was carrying a sword in one hand and two kitchen knives in the other. The officers commanded her to drop the weapons and get on the ground. She refused to comply, choosing, instead, to advance on them. She was shouting, but the officers could not understand what she was saying. She eventually dropped the weapons, but instead of getting on the ground, she continued toward them. In defiance of their repeated commands that she show them her hands, she kept one hand behind her, such that the officers could not see what, if anything, was in that hand. She came close enough to the officers that Astolfo pepper sprayed her, whereupon she put her hands to her face and began to scream in apparent pain.
[11] Once Astolfo had sprayed Ms. Dawkins, Ferreira stepped in close to handcuff her. He was assisted by another officer, P/C Amber Miller. Together with her escort, P/C Matthew Smith, Miller had also responded to the radio call and had just arrived on the scene. At more or less the same time as Ms. Dawkins was being brought under control, round about 1:48 a.m., based on the information he received in the second radio transmission (to wit: that there had been a stabbing), Ferreira advised Ms. Dawkins that she was under arrest for assault with a weapon. He did not advise her of her right to counsel at that time because she was acting “wildly”.
[12] In response to being told that she was under arrest, Ms. Dawkins stated, “It was self defence.” In response, Ferreira asked, “who’s the other person involved?” He asked this question, he said, not for an investigative purpose, but, rather, to assist himself and his fellow officers to locate the injured party. Ms. Dawkins responded, “His name is Jay. He’s still in the building.”
[13] After being handcuffed, Ms. Dawkins continued to act wildly, yelling, screaming, shaking her head violently, and throwing herself on the ground.
[14] Shortly after this, an ambulance arrived. Because Ms. Dawkins was covered with blood, it was determined that the paramedics should assess her. When attempts were made to put Ms. Dawkins on a gurney, however, she resisted, kicking and screaming. She was sufficiently difficult to control, Ferreira said, that she managed to get blood in the face of one of the paramedics. Ferreira helped clean the blood off the paramedic’s face. Eventually, despite her resistance, Ms. Dawkins was put on the gurney and, because she was still struggling, strapped down. The paramedics then took her to the ambulance in order that they could make a preliminary assessment of her condition. Ferreira went with them, while Astolfo went to his police car to make certain computer checks.
[15] At 2:04 a.m., in the ambulance, Ferreira recited to Ms. Dawkins her right to counsel. He did this from memory, he said, because, inasmuch as Ms. Dawkins was covered in blood and he had blood on his gloves, it was not practicable to take out his book to read the printed passage to her. Ms. Dawkins made no response to this advice.
[16] At approximately 2:16 a.m., Astolfo heard over the radio that the stabbing victim was “vital signs absent.” Learning that, he went to the ambulance and confirmed it with Ferreira, who had been told, by a sergeant now on scene, that the victim had died. Ferreira then arrested Ms. Dawkins for murder and read her her right to counsel from his memo book. It is clear that Ms. Dawkins understood her right to counsel, because she responded, “Yeah, get one ready at the hospital.”
[17] Ferreira made no effort, at this point, to facilitate Ms. Dawkins speaking with counsel because there was no phone available and, even had there been one, she was being treated by the paramedics, was still belligerent, and he could not afford her sufficient privacy, in any event.
[18] Inasmuch as Ms. Dawkins was covered in blood, once the paramedics had completed their preliminary assessment, and undertaken decontamination procedures respecting the pepper spray, they took her to St. Michael’s Hospital for a physical examination. Ferreira went in the ambulance. Astolfo followed in the police car.
[19] Throughout this entire period, Ms. Dawkins was in what can fairly be described as a semi-hysterical state. Even once under arrest and physical restrained, she continued to behave in a belligerent fashion toward both the officers and the ambulance personnel. She swore at them, using in one instance a racial epithet, and threatened to spit blood on them, such that the medical personnel decided for their own safety that it was necessary to put a mask on her.
[20] At approximately 2:24 a.m., the ambulance arrived at St. Michael’s Hospital. Once there, Ms. Dawkins continued to behave in a belligerent fashion, but eventually calmed down after hospital staff administered Ativan to her.
[21] At 2:29 a.m., or thereabouts, while waiting in the triage area, Ms. Dawkins stated spontaneously, “I took the knife away from him and I stabbed him. I’m not going to lie.” In response, Ferreira asked Ms. Dawkins how many times she stabbed the victim, to which she replied, “Four or five times.” In cross-examination, he acknowledged that this question was investigatory in nature. He said he asked on impulse but, understanding that an accused person has a right to silence, he immediately realized that he ought not to have asked and said nothing further.
[22] At 2:52 a.m., Ferreira asked Ms. Dawkins if she wanted to speak to a lawyer. He did so, he said, because, Ms. Dawkins had not made it clear earlier, when she first said that she wanted to speak to counsel, whether she wanted to speak to duty counsel or a privately retained lawyer. In response, Ms. Dawkins stated, “You’re evil. I want a female officer.”
[23] Although he made this inquiry at the hospital, Ferreira said that, for essentially the same reasons that he had not made any earlier effort to facilitate Ms. Dawkins speaking with counsel, he would not have provided Ms. Dawkins with an opportunity to actually consult counsel until she was at the police station. Asked in examination-in-chief why he did not make an effort to facilitate contact with duty counsel at the hospital, Ferreira said that it is not his practice and he was not given any direction to do so in this case. In addition, he said, Ms. Dawkins was still sufficiently agitated that she remained “strapped down” to the hospital bed. This was a decision taken by the medical staff, he said, but one with which he agreed.
[24] Ferreira said it was simply not practicable to get access to a phone. Further, even had he been able to do so, since the hospital was very busy, with numerous doctors and nursing staff present, it would not have been practicable to afford Ms. Dawkins privacy to consult with counsel. Ferreira said that, had Ms. Dawkins asked, he would have explained this to her.
[25] At 4:15 a.m., officers from the Toronto Police Forensic Identification Services arrived at the hospital and seized Ms. Dawkins’ clothing.
[26] At 4:39 a.m., hospital staff provided her with a sweater and pants. Ms. Dawkins asked for the assistance of a female nurse to get dressed. That request was honoured. When a female nurse arrived, Ferreira stepped out of the room, but remained immediately outside for safety purposes.
[27] At 4:47 a.m., Ms. Dawkins’ discharge from the hospital was complete and the officers then transported her to 51 Division.
[28] At 5:18 a.m., Ms. Dawkins was paraded before S/Sgt. Dyck, the officer in charge of the division. Ferreira advised Dyck in Ms. Dawkins’ presence that, when he earlier asked her if she wanted to speak to counsel, she had indicated that she did not need legal advice and only wanted advice from her family. Ferreira did not remember exactly when Ms. Dawkins said this, and had no note of it, but said that she must have told him “at some point.” Insofar as (i) it was never suggested to Ferreira that he was wrong in this behalf; (ii) there is no evidence to the contrary; and (iii) that this is essentially what Ms. Dawkins said when Dyck asked her if she wanted to speak to counsel, I find as a fact that Ferreira asked the applicant if she wanted to speak to a lawyer and that she made the response he attributed to her.
[29] S/Sgt. Dyck advised Ms. Dawkins that she had “a right to speak to a lawyer” and she acknowledged that she understood. Dyck then asked if she had a lawyer and, when she indicated that she did not, he offered to have the arresting officers put her in touch with duty counsel. To this, Ms. Dawkins replied, “I don’t know. I don’t think I need advice at this point. The only advice I want is from my family.” Upon hearing that, Dyck advised Ms. Dawkins that, if she changed her mind, she need only tell the officers and they would arrange contact with duty counsel.
[30] At 5:32 a.m., Astolfo and Ferreira commenced a Level III search of Ms. Dawkins. When that was complete, at approximately 5:35 a.m., Ms. Dawkins was taken back to the booking hall and from there to an interview room.
[31] At approximately 5:36 a.m., Ferreira once again asked Ms. Dawkins if she wanted to speak to a lawyer; once again she declined, stating that she wanted to speak to her mother. Astolfo said that he did not call Ms. Dawkins’ mother or family because she did not ask him to do so. Ferreira said he made no effort to call duty counsel at that time because (i) he was standing by with the prisoner; (ii) the only phone nearby was only capable of receiving incoming calls and (iii) he knew that the homicide officers would be arriving shortly, and he was awaiting their direction.
[32] At 6:40 a.m., even though Ms. Dawkins had earlier said that she did not want to speak to a lawyer, Astolfo called duty counsel. He said that he did not call earlier because he had other duties to perform and Ms. Dawkins had said that she did not want to speak to a lawyer. However, notwithstanding she said that, Astolfo indicated that it had been his intention all along to call duty counsel. Astolfo indicated, in re-examination, that, had Ms. Dawkins said that she wanted to speak to a lawyer, phoning duty counsel would have been the first thing that he did.
[33] At 6:46 a.m., according to Astolfo, duty counsel called back and he explained to counsel the nature of the charge Ms. Dawkins was facing. He then took the phone to the interview room.
[34] At 6:53 a.m., according to Ferreira, he gave Ms. Dawkins the phone and she commenced her consultation with duty counsel. Although he had no memory of specifically telling Ms. Dawkins what to do with the phone once she was finished speaking to counsel, Ferreira said that it is his invariable practice to tell prisoners to leave the phone on the floor.
[35] When, “after some time had passed,” (at least ten minutes by his estimate) Ferreira looked in the room to see whether Ms. Dawkins was still talking to counsel. He said he typically looks into the interview room periodically when a prisoner is speaking to counsel because he is concerned with the safety of the prisoner, in particular the risk that a prisoner might harm themselves with the telephone cord. On this occasion, he said, Ms. Dawkins was lying on the floor with her sweater pulled over her head. Seeing that, he opened the door, whereupon Ms. Dawkins told him that she “wasn’t done yet.” Accordingly, Ferreira closed the door and stood by in the hallway outside. When asked whether he heard anything when he opened the door Ferreira said he did not, adding that Ms. Dawkins did not even appear to be talking.
[36] Ferreira said he entered the room a second time, once again “after some time had passed.” Before entering the room, Ferreira said he looked in and saw that Ms. Dawkins was still lying on the floor, with her sweater over her head, and did not appear to be talking. As with his first entry, Ms. Dawkins told him that she was still talking; once again, he closed the door and left her alone.
[37] At 7:16 a.m., Ferreira heard what sounded like the phone being thrown to the floor. Ferreira entered the interview room, found the phone on the floor and took it out of the room.
[38] At 7:26 a.m., Ferreira escorted Ms. Dawkins to a different interview room where, as he understood it, she was to be interviewed by an officer from the Homicide Squad.
[39] At approximately 7:30 a.m., D/Sgt. Ryan commenced his interview of Ms. Dawkins.
[40] Early in the interview, Ryan asked Ms. Dawkins what happened. She responded, “Um, well I was told not to say anything, but whatever…” [2] She then proceeded to recount for him in some considerable detail her version of the events surrounding Mr. Foster’s death.
DISCUSSION
Was there a Charter breach?
[41] The first question is whether there was a breach of Ms. Dawkins’ right to counsel.
Delay in providing the right to counsel
[42] The applicant asserts that she indicated immediately upon arrest that she wished to exercise her right to counsel and that “there was nothing exceptional in the circumstances…to justify suspension of her right.” [3] It is further argued that her right to consult counsel was suspended for four hours and 30 minutes (i.e. between the point of arrest and the time she finally spoke to duty counsel). I do not agree with these statements. In my opinion, it is not correct to say that there was nothing exceptional in the circumstances. I have earlier described the circumstances of the arrest. They were, in my opinion, unusual, to say the least, and Ms. Dawkins’ behaviour, in some respects at least, was little short of bizarre. Further, as I will explain, in my view it is not correct to postulate that Ms. Dawkins’ right to counsel was suspended for anything close to four and a half hours.
[43] As mentioned earlier, when first arrested and advised of her right to counsel, the applicant was unruly and uncooperative. She had to be physically restrained and strapped to the ambulance gurney. Ferreira testified that he had no work phone (i.e., a phone issued by the police). He was not asked whether he had his own phone, but, even if he did, he was not required to provide it to Ms. Dawkins: R. v. Taylor, 2014 SCC 50, at para. 27. Further, the ambulance attendants were assessing Ms. Dawkins and there was no ability to afford her privacy to speak with counsel. In all the circumstances, then, I am of the view that the first reasonable opportunity to put her in contact with counsel did not present itself until she arrived at the hospital.
[44] If I am wrong in holding that there was no reasonable opportunity to let Ms. Dawkins consult counsel before reaching the hospital, the fact remains that, when first advised of her right to counsel, at approximately 2:04 a.m. (upon her arrest for assault with a weapon), Ms. Dawkins said nothing in response and when told again, at approximately 2:16 a.m. (upon her arrest for murder), she said that she would exercise her right at the hospital. By saying nothing on the first occasion and by saying what she said on the second occasion, Ms. Dawkins failed to exercise diligence in pursuing her right to counsel: R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 33-35. In either event, the time between Ms. Dawkins first being arrested and reaching the hospital ought not to count as delay.
[45] Turning, then, to the hospital, Taylor, and R. v. Henrikson, 2003 MBQB 248, aff’d 2005 MBCA 49, stand for the proposition that a hospital is not “a Charter-free zone”: Taylor, at para. 34. Inasmuch, then, as Ms. Dawkins earlier indicated that she wished to speak to counsel, Ferreira had a duty to facilitate that once they were at the hospital.
[46] As for Ms. Dawkins response to Ferreira’s inquiry at 2:59 a.m., whether Ms. Dawkins wanted to speak to counsel, Ms. Penman asserts that there was nothing in what the applicant said that indicated that she no longer wished to speak to a lawyer, such that, counsel argues, nothing Ms. Dawkins did was sufficient to suspend the duty Ms. Dawkins’ earlier request had imposed on the police to facilitate contact with counsel. I disagree.
[47] While it is true that Ms. Dawkins did not explicitly say that she had changed her mind about speaking to counsel, her response was dismissive and contemptuous of the officer’s inquiry. The applicant had no right to dictate that she be dealt with by a female officer and, more importantly for purposes of this analysis, her response was entirely unhelpful to the officer’s effort to facilitate her exercising her right to counsel. Taken together with what she said at the time she was booked, namely, that she did not need legal advice, I find as a fact that, at the time Ferreira asked her in the hospital, the applicant no longer wanted to speak to a lawyer or, if she did, in the least her response constituted a failure to diligently pursue her right to counsel.
[48] The problem arises, however, because Ferreira did not make this inquiry until they had been in the hospital for approximately one half hour. Further, in explaining this delay, Ferreira candidly acknowledged that, speaking generally, it is not his practice to facilitate contact with counsel for an arrested person while in hospital and, in keeping with this general approach, he was not prepared to actually facilitate Ms. Dawkins speaking with counsel until they were at the police station. I find as a fact that, when he asked if she wanted to speak to a lawyer, Ferreira was making a genuine effort to facilitate the applicant speaking to counsel eventually, but, “to fall within the exception to the requirement that an arrested person be allowed to speak to counsel without delay, the police must actually turn their mind to the specific circumstances of the case, and they must have reasonable grounds to justify the delay”: R. v. Rover, 2018 ONCA 745, at para. 33.
[49] In this case, on the one hand, Ferreira said (i) the hospital was busy that morning; (ii) Ms. Dawkins was still agitated; (iii) she needed treatment; (iv) there were numerous medical staff present; (v) he was not sure that a phone could be made available; and (vi) even had a phone been available, he did not think that he could have afforded Ms. Dawkins the requisite degree of privacy to consult with counsel. All these things made it impracticable, he said, to provide Ms. Dawkins with the opportunity to speak to counsel. But the fact remains that he did not actually address his mind to actually facilitating contact with counsel until he got Ms. Dawkins to the station because that was his general practice. On the strength of that admission, I conclude that his “practice” amounted in this case to a breach of Ms. Dawkins’ s. 10 (b) right.
[50] For purposes of this analysis, then, I hold that the s. 10 (b) breach arose at 2:24 a.m., when they got to the hospital, and persisted until 2:59 a.m., when Ms. Dawkins’ response to Ferreira’s inquiry effectively suspended the obligation on the police to facilitate contact with counsel.
[51] As for events in the police station, I find that, there too, the applicant failed to diligently pursue her right to counsel. Therefore, just as they were from 2:59 a.m. onward in the hospital, the police continued to be relieved of the duty to facilitate the applicant speaking with counsel.
Police conduct allegedly exacerbating the s. 10 (b) breach
[52] Ms. Dawkins further argues that the breach caused by the delay in providing her with the opportunity to exercise her right to counsel was exacerbated by investigative efforts the police made during the course of that delay.
[53] The applicant complains that Ferreira ought not to have asked her, at approximately 1:48 a.m., when she was first arrested, who the other person involved was. I disagree. The police were on scene in response to information that there had been a stabbing. That information was confirmed by what Ms. Dawkins said spontaneously and by the fact that she was covered in blood. In R. v. Dupe, 2010 ONSC 6594, at para. 24, Dambrot J. held that, as opposed to “investigative questioning,” the police are entitled to question a detainee to protect, inter alia, “the health and safety of others.” In this case, Ferreira’s question was not investigative; rather, it was directed toward fulfilling his responsibility to get help for the stabbing victim. I see no infringement of Ms. Dawkins’ right to counsel and no exacerbation of a s. 10 (b) breach that had not yet occurred.
[54] Counsel for the applicant also argues that “the police continued to question the Applicant about the incident knowing very well that she had not spoken to counsel yet, despite her request.” [4] I reject this characterization of events in the hospital. Ferreira asked the applicant one question, namely, how many times she stabbed Mr. Foster. I accept Ferreira’s evidence, and find as a fact, that his question was an instinctive reaction to Ms. Dawkins’ spontaneous utterance and that he immediately realized his error and said nothing further. It is noteworthy in this context that Ferreira did not make the applicant’s utterance known to D/Sgt. Ryan prior to Ryan taking the impugned statement from Ms. Dawkins. However ill-considered his question may seem in hindsight, I am satisfied that he was not endeavouring to gather evidence.
[55] Counsel for the applicant also complains that, when she finally did get to speak to duty counsel, her call was interrupted by Ferreira when, not once but twice, he entered the room momentarily to ascertain whether she had finished her call. In this regard, I accept Ferreira’s evidence that he felt a responsibility and a duty to ensure the safety of Ms. Dawkins, who was in his custody. I accept that it was not unreasonable to be concerned that she could, potentially at least, harm herself with the telephone cord. It bears mention here that during the booking procedure she had indicated that she had considered harming herself in the past.
[56] Moreover, Ferreira said that when he looked into the interview room, the applicant was lying on the floor with her sweater over her head. To state the obvious, that is rather bizarre behaviour for an arrested person who is, ostensibly at least, consulting with counsel. It makes perfect sense to me that Ferreira would have wanted to check on her to determine whether she had finished her phone call. I see nothing in his having done so that in any way exacerbated the breach occasioned by Ferreira’s failure to consider facilitating contact between the applicant and counsel while the applicant was still at the hospital.
Was the evidence obtained as a consequence of the breach?
[57] Having found a breach of s. 10 (b), I must go on to consider whether the evidence was gathered as a consequence of that breach. The connection between a Charter breach and the obtaining of the impugned evidence may be causal, temporal, contextual, or some combination thereof, but it must be more than tenuous: R. v. Hamilton, 2017 ONCA 179, at para. 39.
[58] I find that there is neither a causal nor contextual link between anything said or done by the police and the statement Ms. Dawkins made to Ryan.
[59] As for a temporal link, what I consider to be the breach of Ms. Dawkins’ right to counsel spanned a period from approximately five hours before to approximately four and a half hours before Ryan commenced to take a statement from Ms. Dawkins. In contrast to R. v. Plaha, 189 O.A.C. 376, where statements were taken from the appellant before he had had an opportunity to consult counsel, in this case Ms. Dawkins had declined earlier offers to be put in touch with duty counsel and no efforts had been made to take a statement from her prior to her speaking with counsel. In the circumstances, I find no meaningful temporal connection.
Severance of evidence obtained from an earlier breach
[60] To demonstrate that evidence was obtained as a consequence of a Charter breach, it can be enough to show that a breach and an impugned statement are “part of the same transaction”: R. v. Wittwer, 2008 SCC 33, at para 21. Having said that, in R. v. Manchulenko, 2013 ONCA 543, at para. 68, speaking for the court, Watt J.A. held:
In some circumstances, conduct by investigators prior to a second statement may sever the link between the original taint and the subsequent statement. In other words, investigators may attempt a "fresh start" in order to insulate the second statement from the taint that rendered the earlier statement inadmissible: R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at paras. 2-3. Where the antecedent taint is a Charter infringement, a fresh start may clearly sever the subsequent statement from the earlier Charter breach: R. v. Simon, 2008 ONCA 578, 269 O.A.C 259, at para. 69; Wittwer, at para. 3. Ultimately, the sufficiency of the connection between the Charter breach and the subsequent collection of the evidence requires a case-specific factual inquiry to determine whether the post-breach acquired evidence was "obtained in a manner that infringed or denied" any enumerated Charter right of the person charged: Simon, at para. 69.
[61] In this case, the applicant does not suggest that she felt compelled to speak to Ryan because of anything previously said to her by any other officer or by virtue of anything she had said to any of them. There is neither direct nor circumstantial evidence to support such a suggestion. Thus, there is nothing to suggest that the impugned statement is tainted by any earlier statement.
[62] Examining this case within the Manchulenko framework, I note that:
(i) hours transpired between the breach and Ryan taking Ms. Dawkins’ statement; (ii) she declined repeated offers by the police to put her in touch with duty counsel; (iii) despite the fact that she declined their offers, the police persisted and arranged to have her speak to duty counsel; (iv) she appears to have spoken to duty counsel for approximately 40 minutes; (v) she spoke to counsel before the police made any attempt to interview her; (vi) Ryan had not dealt with her prior to interviewing her; (vii) Ryan did not speak to either Astolfo or Ferreira prior to interviewing her; (viii) prior to interviewing her, Ryan was not made aware of any of her prior utterances; (ix) at the outset, Ryan administered both primary and secondary cautions; (x) he confirmed that she had spoken to a lawyer; (xi) she indicated that she had been told by counsel not to say anything; but (xii) despite having received that advice, she chose to speak, nonetheless.
In light of these circumstances, I conclude that the breach (to wit: Ferreira’s failure to consider providing Ms. Dawkins with an opportunity to consult counsel at the hospital) and the obtaining of the evidence (Ryan taking Ms. Dawkins’ statement) cannot sensibly be said to be part of the same transaction or course of conduct. Rather, the taking of the statement was sufficiently severed from the earlier s. 10 (b) breach to constitute a fresh start.
Would the applicant have spoken to the police in any event?
[63] In Plaha, relying on R. v. T. (E.), [1993] 4 S.C.R. 504, 86 C.C.C. (3d) 289, at 306, Doherty J.A. held, at para. 59, that “[e]vidence that is conscriptive will not impair the fairness of a trial if the Crown can demonstrate on evidence that an accused would have provided the same conscriptive evidence had his or her constitutional rights been honoured.” See also R. v. Dolynchuk, 2004 MBCA 45, [2004] M.J. No. 135, 184 C.C.C. (3d) 214, at 231-32; and R. v. Bonder, [2005] O.J. No. 2512 (S.C.J.).
[64] In this case, as opposed to Ms. Dawkins’ statement to Ryan having been tainted by something earlier said or done, (or, more importantly in this case, not done) I am of the view that Ms. Dawkins would have made the statement in any event. I recognize, of course, that to admit Ms. Dawkins’ statement, on this basis, the Crown must prove on a balance of probabilities that, even without the breach, she would have made the statement in any event: R. v. Harper, [1994] 3 S.C.R. 343, 92 C.C.C. (3d) 423, at 429-30.
[65] Ms. Dawkins phoned 911 and, having done so, then waited for the police to arrive. She told the 911 operator and later told Ferreira, not once but twice, that she acted in self-defence. Later, she told Ryan that she had been told by duty counsel not to say anything, but, immediately after telling him that, went on to say, in so many words, that she was going to ignore that advice. She then proceeded to tell him, in greater detail, much the same thing as she earlier told the 911 operator and Ferreira. Based on this factual matrix, I am satisfied on a balance of probabilities that, quite apart from the breach, Ms. Dawkins was firmly intent on telling Ryan her version of events and would have done so, even had she been given an opportunity to speak to counsel at the hospital.
Section 24(2)
[66] In the event that I am wrong in holding that the statement to Ryan was taken in circumstances that amounted to a fresh start, and wrong in holding that Ms. Dawkins would have spoken to Ryan irrespective of the breach, I will go on to consider whether the statement should be excluded pursuant to s. 24(2) of the Charter. In so doing, the court must consider: (i) the seriousness of the breach; (ii) the impact on the Charter-protected interests of the accused; and society’s interest in a trial on the merits: R. v. Grant, 2009 SCC 32, at para. 71.
Seriousness of the breach
[67] Beginning with the seriousness of the breach, Ferreira’s approach was not born of any oblique or untoward motive, but, rather, because, having thought it through, he had decided that providing access to counsel in such situations was simply impracticable. I appreciate that good faith is diminished, or even eclipsed entirely, when it is based on ignorance of Charter values and standards (Grant, at para. 75) and Ferreira was ignorant of what the Charter required in this situation. I find, nevertheless, that he was, in the least, not acting in bad faith. I further find, in all the circumstances, that Ferreira’s conduct was neither severe nor deliberate. Accordingly, as I have earlier said, the breach was minor, in my view, such that this court need not dissociate itself from the conduct: Grant, at para. 72.
[68] Further, it is clear from what Ms. Dawkins said when advised of her right to counsel in the ambulance, that she expected to be provided with an opportunity to consult counsel at the hospital. It is equally clear from her response to Ferreira’s inquiry at 2:59 a.m., (as confirmed by her subsequent rejection of Dyck and Ferreira’s later offers to put her in touch with duty counsel) that, as of 2:59 a.m., she had changed her mind about wanting to speak to counsel. After all, she had no way of knowing that it was Ferreira’s practice not to facilitate actual contact with counsel until a prisoner was within the confines of the police station. Therefore, even had Ferreira been willing to provide Ms. Dawkins with an opportunity to consult counsel at the hospital, the result would have been the same. In the final analysis, then, I am satisfied that the breach had no net effect.
[69] In summary on this issue, the breach is at the low end of the spectrum of Charter-offending state conduct. This militates toward inclusion.
Impact on the applicant’s Charter-protected interests
[70] Turning to the impact on the applicant’s Charter-protected interests, in both Taylor and Henrikson evidence vital to the prosecution was gathered as a direct consequence of the breach. In this case no effort was made to gather evidence from Ms. Dawkins before she had consulted counsel. Therefore, I find that there is no impact on her Charter-protected interests.
Society’s interest in a trial on the merits
[71] The applicant is charged with murder. Thus, to say that it is in society’s interest that the matter be tried on its merits is to state the self-evident. I appreciate, of course that the seriousness of the offence “has the potential to cut both ways”: Grant, at para. 84.
[72] Clearly, the Crown can mount its case without the statement. On the other hand, inasmuch as she admits having stabbed Mr. Foster and having thereby caused his death, to mount a defence of self-defence, for all practical purposes Ms. Dawkins will have to testify. That said, her statement to Ryan is somewhat unusual in that, while she said many things that support her defence, she said many others that strongly invite the conclusion that she acted out of anger, not fear.
[73] “Exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute”: Grant, at para. 81. Applying that statement to this case, and understanding, as I say, that Ms. Dawkins has no choice but to testify, to exclude her statement would create the potential for Ms. Dawkins to testify so as to adduce all the exculpatory aspects of the narrative she provided to the police, while, at the same time, being insulated from challenge respecting the many inculpatory aspects of her statement. So, while to deprive the Crown of the statement would not “gut” its case, it would, in the least, create a very real potential for the jury to be profoundly misled. On balance, this favours inclusion.
[74] Having considered the Grant factors, I conclude that they all point toward inclusion.
RESULT
[75] In the result, for the foregoing reasons, notwithstanding the breach, I held that the applicant’s statement ought to be admissible.
R. Clark J.
Released: November 6, 2018