Court File and Parties

COURT FILE NO.: CJ 9373 DATE: 2019-07-29 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. L.R.

BEFORE: Mr. Justice D.A. Broad

COUNSEL: Jennifer Caskie and Katherine Enns, Counsel for the Crown Harald Mattson, Counsel for the Accused/Applicant L.R.

HEARD: June 3 and 4, 2019

SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY PURSUANT TO S. 486.4 OF THE CRIMINAL CODE OF CANADA

Endorsement re admissibility of videotaped statement by the accused – voluntariness and sections 10(b) and 24(2) of the Charter

[1] The applicant L.R. was arrested on August 14, 2017 and jointly charged with J.J.T. with uttering threats, assault, sexual assault, kidnapping, forcible confinement, and human trafficking in respect of a 15 year old complainant G.C..

[2] Both accused have elected to be tried by judge alone with the trial currently scheduled to begin on October 7, 2019.

[3] Following her arrest at approximately 9:32 p.m. on August 14, 2017, Ms. R. was interviewed by police at the Waterloo Region Police Service (“WRPS”) Central Division between 12:44 a.m. and 2:00 a.m. on August 15, 2017, first by Detective DeMarte and then by Detective Merrigan. The interview was video and audio recorded.

[4] The Crown has brought an application seeking a finding that the videotaped statement of Ms. R. was made voluntarily. Ms. R. has brought an application seeking an order under section 24(2) of the Charter of Rights and Freedoms to exclude the videotaped statement and all direct or derivative evidence arising there from by reason of a breach of Ms. R.’s right pursuant to section 10(b) of the Charter.

[5] The following witnesses testified at the joint voir dire in respect of the applications:

(a) Constable Shaun White of the WRPS; (b) Constable Colin Palmer of the WRPS; (c) Detective Matt DeMarte of the WRPS; (d) Constable Jeff Merrigan of the WRPS; (e) L.R. – accused/applicant.

In addition, Ms. R.’s video-taped statement of August 15, 2017 was played in its entirety and a DVD of the video recording and a transcript of the recording were made exhibits on the voir dire.

Summary of Facts

[6] Ms. R. was 18 years and 2 months old at the time of her arrest. She had no criminal record and no prior involvement with the criminal justice system.

[7] At the time of her arrest Ms. R. was advised by Detective DeMarte of the charges and was handcuffed. Detective DeMarte read to Ms. R. her right to counsel from the script in his notebook and asked her if she understood. She replied “speak slower but yes.” She did not ask him to repeat what he had read to her or to clarify it.

[8] Detective DeMarte asked Ms. R. if she wished to speak to a lawyer and she responded “I don’t have one…but don’t want to speak to one if it isn’t necessary.” Detective DeMarte read to Ms. R. her criminal caution, again from the script in his notebook, and asked her if she understood to which she replied “yes” and continued “I didn’t think I was as caught up in this as I am… but now I know.”

[9] Following her arrest Ms. R. advised Detective DeMarte that she needed to call her father. She could not recall Detective DeMarte’s response.

[10] Ms. R. was told to sit on the curb with her hands handcuffed while waiting to be transported to the Central Division Station. She was transported to the police station at 22:35 p.m..

[11] Ms. R. asked Detective DeMarte when she would be permitted to call her father, but he offered no response.

[12] Ms. R. testified that she thought her father would know a lawyer and would know how to deal with the situation, however she did not communicate this to any of the police officers she encountered.

[13] At 23:17 p.m. Ms. R. spoke to duty counsel pursuant to her request.

[14] At the commencement of the interview Ms. R. asked Detective DeMarte if he had called her parents and was advised that her mother had been spoken to and had been told where to attend court in the morning to which Ms. R. expressed satisfaction. Detective DeMarte advised that a message had been left for Ms. R.’s father.

[15] Ms. R. confirmed to Detective DeMarte that she had received her rights to counsel and her caution and that she had asked to speak to duty counsel and had done so.

[16] Prior to embarking on questioning Detective DeMarte provided Mr. R. with a secondary caution stating “if you have spoken to any police officer or anyone else in authority, or if any such person has spoken to you in connection with this case, I want it clearly understood that I do not want it to influence you in making any statement” to which Ms. R. responded that she understood.

[17] Detective DeMarte explained the secondary caution, advising Ms. R. “so essentially, that means that no matter what anyone has told you – police-officer-wise you don’t have to talk to me if they promised you anything good or threatened you with anything bad if you do or you don’t. None of that flies, okay?”

[18] At numerous points throughout the interview Ms. R. exercised her right to silence stating “I don’t want to answer that” or “I don’t have an answer.”

[19] During the course of the interview Ms. R. requested to speak to duty counsel again which Detective DeMarte facilitated.

[20] After re-entering the interview room with an officer after she had spoken to duty counsel a second time Mr. R. asked for a blanket. The officer offered to see if a blanket could be obtained, however one was not provided. Ms. R. did not complain about cold conditions in the room after that time nor did she repeat her request for a blanket.

[21] Detective Merrigan replaced Detective DeMarte midway through the interview and continued with it. Detective Merrigan was more aggressive in his questioning of Ms. R. than Detective DeMarte had been. He made frequent use of profanities.

[22] Notwithstanding his more aggressive tone, Ms. R. did not offer any information to Detective Merrigan, stating on numerous occasions “I don’t want to talk about it” and “I don’t want to answer that.” On two occasions Detective Merrigan suggested that if she was involved in certain aspects of the offences she would be a “monster.” On the second occasion Ms. R. responded that she was “not a monster.”

[23] In the course of the interview with Detective Merrigan, Ms. R. expressed a desire to speak to her parents. However, she did not state why she wanted to speak with them. In particular she gave no indication that it was for the purpose of obtaining counsel.

[24] Towards the end of the interview Ms. R. stated “I just haven’t even fully talked to a lawyer yet.” After Detective Merrigan reminded her that she had spoken with a lawyer twice she responded “but it wasn’t really a conversation that I feel like needs to be had with them” and “so that’s just, to be honest, why I’m super hesitant on what I’m doing.” Shortly after this point Detective Merrigan discontinued his questioning. When Ms. R. requested to use the washroom, the interview ended.

Guiding Principles

[25] Generally, a statement made by an accused to a person in authority is not admissible into evidence unless Crown proves, beyond a reasonable doubt, that the statement was voluntary, that is, that the accused has made a meaningful choice to speak (see Paciocco and Stuesser, The Law of Evidence, 5th ed. at p. 320, citing R. v. Hebert (1990), 1990 SCC 118, 77 C.R. (3d) 145 at 180 (S.C.C.)).

[26] The “confessions rule” is reflective of two competing goals, namely, to protect the rights of the accused without unduly limiting society's need to investigate and solve crimes (see R. v. Oickle, 2000 SCC 38, [2000] S.C.J. No. 38 (S.C.C.) at para. 33).

[27] Voluntariness is the touchstone of the confessions rule. If a confession is involuntary by reason of the making of threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused's right to silence, the confession is inadmissible (see Oickle at para. 69).

[28] The analysis under the confessions rule is a contextual one, whereby a court should strive to understand the circumstances surrounding the confession and ask if they give rise to a reasonable doubt as to its voluntariness, taking into account all the aspects of the confessions rule (see Oickle para. 71).

[29] An effort by the police to convince a suspect that it is in his or her best interests to confess becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne (see Oickle para. 57).

[30] If the common-law voluntariness rule is satisfied, there will be no breach of the general right to silence under s. 7 of the Charter because the accused will have exercised his or her choice to speak, which is what s. 7 protects (see Paciocco and Stuesser, The Law of Evidence, citing R. v. Singh, 2007 SCC 48, [2007] S.C.J. No. 48 (S.C.C.) at para. 25). A finding of voluntariness will be determinative of whether there was a breach of s. 7. If the Crown proves voluntariness beyond a reasonable doubt, there can be no finding of a Charter violation of the right to silence in respect of the same statement, and the converse holds true as well (see Singh at para. 37).

[31] The police are not absolutely prohibited from questioning a detained person and they need not advise the detainee that he has a right to remain silent. The right to remain silent in s. 7 of the Charter is in fact the right of the detained person to make an informed choice as to whether to speak to the police (see R. v. Smith, [1996] O.J. No. 372 (C.A.) at p. 13).

[32] The scheme under the Charter to protect the accused's pre-trial right to silence involves sections 7 and s. 10(b) being read together. Section 7 confers on the detained person the right to choose whether to speak to the authorities or to remain silent and s. 10(b) requires that he be advised of his right to consult counsel and permitted to do so without delay. Although the detained suspect may be at a disadvantage in relation to the informed and sophisticated powers at the disposal of the state, he or she is entitled to rectify the disadvantage by speaking to legal counsel at the outset, so that he or she is aware of his right not to speak to the police and obtains appropriate advice with respect to the choice he faces (see R. v. Hebert, 1990 SCC 118, [1990] S.C.J. No. 64 (S.C.C.) at paras. 51 and 52).

[33] The ambit of s. 10(b) of the Charter must be considered in light of s. 10(a) which requires the police to advise an individual who is arrested or detained of the reasons for such arrest or detention. The rights accruing to a person under s.10(b) arise because he or she is has been arrested or detained for particular reason, therefore such a person can exercise his s. 10(b) right in a meaningful way only if he knows the extent of his jeopardy (see R. v. Black, 1989 SCC 75, [1989] 2 S.C.R. 138 at para. 30).

[34] Section 10(b) of the Charter provides:

Everyone has the right on arrest or detention

…(b) to retain and instruct counsel without delay and to be informed of that right;

[35] In the case of R. v. Devries (2009), 2009 ONCA 477, 95 O.R. (3d) 721 (C.A.) Doherty, J.A., at paras. 21-23, summarized the nature of the rights conferred by section 10(b), noting that it obligates the police to inform a detainee of his or her right to speak with a lawyer without delay and guarantees the right of a detainee to retain and instruct counsel.

[36] As established by R. v. Bartle, 1994 SCC 64, [1994] 3 S.C.R. 173 (S.C.C.), at pp. 191-92, if a detainee chooses to exercise the right to speak with a lawyer, the police must provide the detainee with a reasonable opportunity to do so and must refrain from further questioning the detainee or otherwise eliciting evidence from the detainee until he or she has had a reasonable opportunity to consult with counsel.

[37] At para. 2 of Devries, Doherty J.A. observed that the informational component of s. 10(b) has two parts. Section 10(b) expressly requires that the detainee be told of his or her right to retain and instruct counsel without delay. The Supreme Court of Canada in R. v. Brydges, 1990 SCC 123, [1990] 1 S.C.R. 190 (S.C.C.), at p. 206, extended the informational component of s. 10(b) to include the requirement that the detainee must be informed of the existence and availability of duty counsel and Legal Aid.

[38] The guiding principles concerning the constitutional directives of s. 10(b) of the Charter were very usefully summarized by K.L. Campbell, J. in the case of R. v. Dykstra, 2015 ONSC 6012 (S.C.J.) at paras. 55-57. These principles include the following:

a) every person who is detained or arrested by the police must be informed of their right to retain and instruct counsel without delay;

b) if the detained or arrested person chooses to exercise his or her right to counsel, the police must (1) provide that person with a reasonable opportunity to contact and consult with counsel in private; and (2) refrain from questioning that person, or otherwise eliciting incriminating information from them, until he or she is able to avail him or herself of that reasonable opportunity to privately consult with counsel;

c) in the absence of proof that the individual did not, for whatever reason, understand his or her right to counsel when advised of it by the police, the onus is on the accused to prove that he or she: (a) asked to consult with counsel but was denied that right by the police; or (b) was denied any opportunity to even try to invoke the right to counsel;

d) in other words, once the police have complied, without delay, with the informational component of s. 10(b) of the Charter, there are no further obligations or duties cast on the police unless and until the individual expresses his or her desire to exercise the right to counsel;

e) a detained or arrested individual, after being advised of the informational component of the right to counsel, must somehow assert or invoke the right and be reasonably diligent in exercising the right, otherwise the corresponding duty cast upon the police to provide the individual with a reasonable opportunity to consult privately with counsel, and to refrain from seeking to elicit any incriminating evidence from the individual, will either not arise in the first place or will be suspended.

[39] In Devries, Doherty, J.A. pointed out at para. 38 that “questions or comments made by a detainee or other circumstances at the time the s. 10(b) caution is given may indicate a misunderstanding by the detainee of the nature of the s. 10(b) rights. In those circumstances, the arresting officer will have to provide a further explanation of the rights.”

Position of the Accused/Applicant

[40] Mr. Mattson on behalf of Ms. R. acknowledged initially that there were no improper inducements offered to her. However he argues that she was subjected to an overly aggressive interrogation, particularly by Detective Merrigan, which rendered her statement involuntary. He points out that the context must be considered in this respect. Ms. R. was 18 years of age with no prior arrests. He argues that Detective Merrigan’s repeated use of profane language, his accusing Ms. R. on two occasions of being a “monster” and her sleep deprivation, as he says was depicted on the video, all created an oppressive set of circumstances.

[41] Notwithstanding his earlier acknowledgement that there were no improper inducements, Mr. Mattson subsequently argued that Detective Merrigan’s characterization of Ms. R. as a “monster” and as being involved with the group committing the offences constituted an inducement.

[42] Moreover, Mr. Mattson argues that Ms. R. was not fully apprised of her rights to counsel. He submits that she asked to speak to her father on at least five occasions and never received a response from police. He says that the police should either have drawn an inference that she wanted to speak to her father for assistance in obtaining a lawyer, or inquired from her why she wanted to speak to her father.

[43] Mr. Mattson submits that, as an 18 year old having had no prior involvement the criminal justice system, Ms. R. could not be expected to know the difference between a specific lawyer and duty counsel. Her age and lack of experience as well as her request to speak with her father should have acted as “red flags” for the police to make further inquiries of Ms. R. to ensure that she fully understood her rights to counsel of choice. In reply submissions Mr. Mattson argued that these elements constituted “special circumstances” requiring the police to provide Ms. R. with a further explanation of her s. 10(b) rights.

Position of the Crown

[44] Ms. Caskie for the Crown submits that the answers Ms. R. chose to give in response to police questions were wholly voluntary. There is no question of any trickery on the part of police or that Ms. R. lacked an operating mind. She submitted that there were no threats or inducements and, in any event, there is no basis to suggest that Ms. R.’s will was overborne by any inducements suggested by Mr. Mattson.

[45] Moreover, Ms. Caskie argued that the circumstances of Ms. R.’s interview were not oppressive. Although she requested a blanket at one point during the interview and was not provided with one and the interview was conducted in the early hours of the morning, Ms. R. acknowledged on cross-examination that she did not speak to police in order to avoid an uncomfortable situation nor did she speak to police in order to be permitted sleep.

[46] Although Detective Merrigan’s language and tone were aggressive, Ms. Caskie submits he was not rude or overbearing and on a number of occasions he exhibited concern towards Ms. R.. Moreover, Ms. Caskie submits that there is no evidence that Ms. R.’s will was overborne in any way. She exercised a right to silence over forty times during the course of the interview and she acknowledged on cross-examination that she never deviated from that position. Ms. Caskie submits that Ms. R. was picking and choosing which questions she wished to answer.

[47] With respect to compliance with s. 10(b) of the Charter, Ms. Caskie submits that the informational component of the section was satisfied by the provision by Detective DeMarte of the standard police caution at the time of her arrest, which Ms. R. acknowledged she understood.

[48] Moreover, Ms. Caskie submits that the implementation component was more than satisfied. Ms. R. was put in contact with counsel of her choice, being duty counsel. As an adult Ms. R. had no constitutional right to speak with her father. Because she never communicated to police the reason for wishing to speak to her father, and in particular to seek his assistance in retaining counsel, there was no duty on the police to facilitate contact with the third party, in this case her father.

Discussion and Findings

(a) Voluntariness

[49] I find that the Crown has satisfied the onus on it to prove beyond a reasonable doubt that the answers given by Ms. R. to police in her videotaped statement were voluntary.

[50] Fairburn, J., as she then was, confirmed in R. v. Brown, 2015 ONSC 3305 (S.C.J.) at para. 86 that the voluntariness rule is not an insurmountable or even a near insurmountable hurdle for the Crown to get over, but rather, the approach to the voluntariness rule as set out in Oickle is rightly seen as setting a high barrier to exclusion.

[51] Of the four elements identified in Oickle the only two which are in issue are the presence of inducements and oppressive conditions. There is no question that Ms. R. lacked an operating mind or that the police used trickery in order to obtain statements from her.

[52] On the question of inducement it is important to note that, as observed by Fairburn, J. in Brown at para. 93, the law allows police officers to offer inducements to detained persons in pursuit of solving crime and the voluntariness doctrine is not to be applied in a way that precludes this important investigative technique.

[53] Although the police are permitted to offer inducements, they cannot offer inducements in the form of threats or promises that are "strong enough to raise a reasonable doubt about whether the will of the subject has been overborne" (see Oickle, at para. 57).

[54] In the context of the police interview of Ms. R. it is difficult to view Detective Merrigan’s characterization of Ms. R. as a “monster” if she were actively involved in the offences as an inducement, in the sense of constituting a threat or a promise. However it is not necessary to make a finding on whether it was an inducement as it is clear that it was not strong enough to raise a reasonable doubt that Ms. R.’s will was overborne.

[55] Ms. R. repeatedly invoked her right to silence after the suggestion was made by Detective Merrigan. Immediately after the first suggestion that if she were actively involved she would be a “monster” and in response to Detective Merrigan’s specific question “when you guys took [the complainant] to that apartment, did you know what was gonna happen to her?” She responded “I don’t wanna talk about it.” Shortly thereafter Detective Merrigan told her that, if she did not know what the two males in the apartment were going to do to the complainant, she had the opportunity to distance herself from them. He then asked her “were you in the room when they did that? I just want the truth, that’s all I want” to which she responded “I don’t wanna answer that.”

[56] Later in the interview Detective Merrigan returned to the same theme where the following exchange took place:

Detective Merrigan : … There’ a real distinction between two guys that rape a 15-year-old girl and the 18 year old girl who drove that girl there, not knowing that that was gonna happen. Is that fair? L.R. : Mm-hmm. Detective Merrigan : Okay. Did you know that it was going to happen to her? L.R. : I don’t wanna answer. Detective Merrigan : ‘Cause that would make you a monster. If you took her to that place… L.R. : I’m not a monster. Detective Merrigan : Okay. And I don’t think you are. I’m glad you said that…

[57] Following this exchange through to the end of the interview Ms. R. continued to invoke her right to silence responding to various questions with “I don’t wanna answer that.”

[58] I find that the Crown has proven beyond a reasonable doubt that Ms. R.’s will was not overborne by any inducement that may been represented by Detective Merrigan’s suggestion or accusation that she was actively involved in the offences and was therefore a “monster.”

[59] On the question of oppression, the jurisprudence is clear that its existence has the potential to produce false confessions and that if the police create conditions distasteful enough, a suspect may make a stress-complaint confession to escape those conditions or the oppressive circumstances could overbear the suspect’s will to the point that he or she gives an induced confession (see Oickle at para. 58).

[60] At para. 100 of Brown Fairburn, J. confirmed, citing R. v. Whittle, 1994 SCC 55, [1994] S.C.J. No. 69, [1994] 2 S.C.R. 914 (S.C.C.), at para. 49, that, in reference to whether an accused person had an operating mind, the focus should be on whether the accused is aware of what she is saying and that she is saying it to the police who can use it against her and to her detriment.

[61] It is clear from viewing the video of Ms. R.’s interview and reading the transcript that Ms. R. was keenly aware throughout of what she was saying and that she was saying it to the police, knowing that they could use it against her.

[62] At para. 60 of Oickle, Iacobucci, J. identified a non-exhaustive list of factors that can contribute to an atmosphere of oppression as including “depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time.”

[63] Viewed in context, I would not characterize the atmosphere of Ms. R.’s interview as oppressive. Although Detective Merrigan’s approach, in contrast to that employed by Detective DeMarte, could be described as aggressive, it was not excessively so, nor was it intimidating. It is clear that Ms. R. was not in fact intimidated by Detective Merrigan’s approach.

[64] Moreover, Detective Merrigan’s aggressive questioning was not carried out for a prolonged period of time.

[65] Throughout the interview, when Ms. R.’s invoked her right to silence and declined to answer various questions, both Detectives DeMarte and Merrigan, after asking brief follow-up questions, characteristically accepted Ms. R.’s decision not to answer and moved on to other lines of questioning.

[66] Although the interview was conducted in the early hours after midnight, Ms. R. never complained of being tired, never asked to be permitted to sleep, and displayed no signs of pronounced sleepiness or grogginess. She appeared to be engaged throughout the interview with both detectives. She was listening to both officers and choosing which questions to answer and which to decline to answer.

[67] Although the video depicted that she placed her head on her arms on the table when the officers were out of the room, she readily resumed the interview when they returned. At one point when she was summoned out of the room she is depicted to have quickly and alertly lifted her head, stood and walked out of the room.

[68] Although Ms. R. at one point in the interview made a request for a blanket which was not fulfilled, she did not repeat the request nor did she complain of cold conditions.

[69] On cross-examination on the voir dire Ms. R. acknowledged that she did not answer police questions just to escape the cold nor did she give in to answer questions in order to be permitted to sleep.

[70] In any event, even if the conditions of the interview might be characterized as oppressive, they were not such as to give rise to a reasonable doubt that Ms. R.’s will was overborne as a result.

(b) Section 10(b) of the Charter

[71] I am not satisfied that Ms. R. has satisfied the onus on her of proving, on a balance of probabilities, a breach of s. 10(b) of the Charter.

[72] With respect to the informational component of s. 10(b), the police satisfied their duty to communicate to Ms. R. her rights under the section. In the case of R. v. Culotta, 2018 ONCA 665 (C.A.), affirmed 2018 SCC 57, Nordheimer, J.A., writing for the majority, noted at para. 38 that the police are not under a duty to positively ensure that a detainee understands what the rights under s. 10(b) entail but are only required to communicate those rights to the detainee. In R. v. Bartle, [1994] S.C.R. 173 (S.C.C.) the Court stated at p. 193 that "absent special circumstances indicating that a detainee may not understand the s. 10(b) caution, such as language difficulties or a known or obvious mental disability, police are not required to assure themselves that a detainee fully understands the s. 10(b) caution."

[73] In contradistinction to Culotta where the accused did not testify on the voir dire respecting the admissibility of her statement and the court was left to try to divine her understanding of her rights from the evidence of the police officer (see para. 36), Ms. R. did testify with respect to her understanding. On cross-examination she confirmed that she responded to Detective DeMarte that she did understand his caution and did not ask him to repeat or clarify it. She testified that she understood that she could contact any lawyer that she wished and understood the existence and availability of duty counsel.

[74] On the evidence there was no basis to suggest that there were special circumstances such as language difficulties or a known or obvious mental disability casting upon the police a requirement to assure themselves that she fully understood the s. 10(b) caution. The facts that Ms. R. was just over eighteen years of age with no criminal record and had asked to be in contact with her father did not, in my view, constitute special circumstances for this purpose.

[75] In the recent case of R. v. Mumtaz, [2019] O.J. No. 229 (S.C.J.) Woolcombe, J. observed at para. 25 that, when a detainee makes a request to speak to a third party in order to make contact with the specific counsel, the police are required to provide the detainee with a reasonable opportunity to consult with counsel of choice. However, citing R. v. Cheema, 2018 ONSC 229 (S.C.J.), she confirmed that “when a detainee does not tell the police the reason why he or she wishes to speak to a third party, there is no obligation on the police to determine why the police made such a request.” Woolcombe J. also cited the case of R. v. Adams, [1989] O.J. No. 747 (C.A.) in which the Court of Appeal considered whether there had been a s.10(b) violation by the police refusal to grant the detainee permission to call his mother after his repeated requests to do so. The court held at para. 24 that “there were no special circumstances in this case which required the police to seek a clarification as to the reason why [the detainee] wished to contact his mother.”

[76] Similarly, she cited the case of R. v. Zoghaib, [2006] O.J. No. 1023 (C.A.) in which the Court observed “as a matter of law the appellant’s unexpressed desire to speak to her own lawyer could not result in a breach of s. 10(b) of the Charter.”

[77] It is noteworthy that in the present case Ms. R. acknowledged on cross-examination that requesting to contact her father her intention was to obtain general advice, and she never asked police to put her in contact with her father as a means to get in contact with a lawyer.

[78] As was the case in R. v. Mumtaz (see para. 29) the issue in the case at bar does not concern whether or not Ms. R. asserted a desire to consult with counsel. Plainly, she did indicate such a desire, and as in Mumtaz was afforded an opportunity to speak with duty counsel. The fact that duty counsel was Ms. R.’s counsel of choice is confirmed by the fact that during the course of the interview she asked to speak to duty counsel again. This second consultation with duty counsel was facilitated by Detective Merrigan despite the fact that he was under no constitutional obligation to do so, as Ms. R.’s jeopardy had not changed.

[79] I am unable to accept the submission of Mr. Mattson that police, in breach of their constitutional obligation, steered Ms. R. to duty counsel. In the case of R. v. Ruscica, [2019] O.J. No. 2021 (S.C.J.) McKelvey, J. held at para. 42 that, on the authority of Devries, the Ontario Court of Appeal limits the informational component of s. 10(b) to the obligation to inform the detainee of his right to retain and instruct counsel without delay as well as the existence and availability of duty counsel and legal aid. He noted that there is no reference to any obligation to inform the detainee about access to telephone books or other resources.

[80] At para. 44, McKelvey, J. noted that if additional information is required by a response received to the s. 10(b) advice from a detainee, the circumstances would dictate what information needs to be provided, a position that is consistent with the authorities. He added that courts are able to assess whether the police response was adequate in the circumstances.

[81] In the present case Ms. R. confirmed to Detective DeMarte that she understood the s. 10(b) caution which he provided and on cross-examination she acknowledged that, in doing so, she understood that she could contact any lawyer that she wished and understood the existence and availability of duty counsel. She did not communicate to the police that she did not understand her rights, she did not explain to police that she wanted to talk to her father to obtain assistance in contacting counsel, and she requested to speak to duty counsel, not only once but a second time during the course of the interview.

[82] In my view the implementation component of s. 10(b) was satisfied by the police by putting Ms. R. in contact with duty counsel pursuant to her request prior to commencement of the interview, and without being under any duty to do so, by doing so a second time during the course of the interview.

[83] On the evidence Ms. R. has failed to show on a balance of probabilities that the police breached s. 10(b) of the Charter.

Disposition

[84] For the reasons set forth above the application of the Crown is granted and the application of the accused/applicant is dismissed. I find that the videotaped statement of the accused/applicant L.R. on August 15, 2017 is admissible in evidence at trial.

July 29, 2019

D.A. Broad, J.