OSHAWA COURT FILE NO.: CR-18-14881-00

DATE: 20190827

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

T.S.P.

Defendant

Taran D. Boodoosingh, for the Crown

Calvin Barry and Robert Geurts, for the Defendant

HEARD: May 27, 28, 29, 30, 2019

PUBLICATION BAN

Pursuant to subsection 486.4 of the Criminal Code, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. No information that could identify the complainant shall be published in any document or broadcast or transmitted in any way. Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. This judgment complies with this restriction so that it can be published.

REASONS FOR DECISION

DE SA J.:

Overview

[1] The accused is charged with sexual assault, sexual interference, and invitation to sexual touching in relation to the then-fifteen year old complainant, D.B (the “Complainant” and or “D.B.”). The offence dates referenced in the Indictment specify a date period of October 1, 2010 to April 13, 2011.

[2] It is alleged that the accused engaged in various sexual interactions with D.B. including sexual intercourse, all prior to her turning 16 years of age on April 13, 2011. The interactions were not forced. However, given D.B.’s age, she was not in a position to consent.

[3] It is not disputed that the accused and D.B. had an ongoing consensual sexual relationship after she turned 16 and the relationship continued for over 2 years. The accused and D.B. also had a child together who was born on April 1, 2013. Their relationship ended on September 5, 2013.

[4] Prior to commencing the relationship with D.B., the accused had been in a sexual relationship with another young person, C.E. That relationship with C.E. took place between the Spring of 2009 and Fall of 2010. C.E. was 14 and turned 15 at the time.

[5] On July 27, 2017, the accused pleaded guilty to sexual interference in relation to C.E.

[6] The parties have brought a number of applications in advance of the accused’s trial which is scheduled to proceed on September 30, 2019. The issues raised in the pre-trial applications include:

a. Crown’s Application to Amend Indictment: The Crown has applied to amend the Indictment to have a start date commencing in June/July 2010. The Crown is seeking to expand the Indictment’s date range to include an incident where the accused is alleged to have engaged in sexual activity with both C.E. and D.B. at the same time (the “Couch Incident”).

b. Crown’s Similar Fact Application: The Crown is also seeking to introduce at trial the prior sexual relationship the accused had with C.E. which was the subject matter of the guilty plea on July 27, 2017.

c. The Defence 276 Application: The accused seeks to adduce evidence pertaining to the subsequent relationship the accused had with D.B. after she turned 16 years old.

d. The Defence 10(b) Charter Application and Voluntariness: Finally, the accused seeks to exclude a statement taken from the accused on the date of his arrest. The defence takes the position that the statement is not voluntary and/or the accused’s 10(b) Charter rights were violated in the taking of the statement.

[7] After hearing argument and submissions on each of these issues, I reserved my decision.

[8] I have outlined these issues in more detail below, and my decision on each.

1) Application to Amend Indictment

Background to the “Couch Incident”

[9] As noted above, the accused is charged with sexual assault, sexual interference, and invitation to sexual touching in relation to the then-fifteen year old complainant, D.B. The offence dates referenced in the Indictment specify a date period of October 1, 2010 to April 13, 2011.

[10] In the summer of 2010 (on or around July 2010), it is alleged that the accused and D.B. were at C.E.’s house. The three individuals were on the couch when the accused allegedly began touching both females in a sexual manner. Both C.E and D.B. were 15 years of age at the time of the alleged incident (the “Couch Incident”).

[11] The Crown has applied to amend the indictment to have a start date commencing in June/July 2010 to include the Couch Incident. While the Crown always intended to include the Couch Incident involving both C.E. and D.B. from the summer of 2010, the indictment, as drafted, does not. As it stands, the time period for the allegations commences in October 2010.

[12] The defence opposes the amendment. The defence takes the position that since the Crown proceeded on these existing dates from the outset, it would be prejudicial to permit an amendment at this point.

Analysis

[13] Broad powers of amendment at trial serves two important goals. First, they promote the determination of criminal cases on their merits. Second, wide powers of amendment avoid a multiplicity of proceedings. As Justice Doherty explained in R. v. Irwin, 1998 CanLII 2957 (ONCA) at para. 11:

Broad powers of amendment expand the scope of the special pleas and avoid multiple trials arising out of a single event or transaction. By combining broad powers of amendment with an expanded availability of the special pleas, the criminal law declares a preference for results based on the merits and arrived at in a single trial where pleadings problems are fixed and not allowed to derail the proceedings: see R. v. Moore, 1988 CanLII 43 (SCC), [1988] 1 S.C.R. 1097 at pp. 1128-31, 41 C.C.C. (3d) 289 at pp. 311-13.

[14] The focus is on substance, rather than form. The real question is prejudice as it pertains to the accused’s understanding of the case to be met. As explained in Irwin, supra, at para. 25-26:

On a plain reading, the section contemplates any amendment which makes a charge conform to the evidence. The limits on that amending power are found, not in the nature of the change made to the charge by the amendment, but in the effect of the amendment on the proceedings, and particularly, on the accused's ability to meet the charge. The ultimate question is not what does the amendment do to the charge, but what effect does the amendment have on the accused?

…If the accused is prejudiced, the amendment cannot be made regardless of what it does to the charge. If no prejudice will result from the change, why should it matter how the change to the charge is described? [Emphasis added]

[15] In this case, the amendment has been sought well in advance of the trial. Moreover, the defence has known about the allegations from the outset, and knew well that the Crown intended to proceed against the accused in relation to the Couch Incident. The Couch Incident did not form part of the charges/resolution pertaining to C.E. There is no meaningful prejudice by allowing the amendment in the circumstances.

[16] The defence asks that if the Crown is permitted to include the Couch Incident, that it be added as a separate count on the Indictment. The defence takes the position that the evidence may be stronger in relation to the Couch Incident, as there is a corroborating witness involved (C.E.).

[17] The defence also argues that the Couch Incident is less serious that the other allegations of sexual touching. Accordingly, the defence maintains that the accused should have the right to know the specific findings of the jury in the circumstances.

[18] It is clear that the Crown is treating the activity at issue as an ongoing course of conduct, and the Crown is entitled to do so.[^1]

[19] In my view, it would make no sense to sever off the Couch Incident from the other alleged conduct. To do so would only unnecessarily complicate the charge and potentially confuse the jury as to the distinct treatment of the Couch Incident. There are multiple incidents which are alleged to have occurred during the defined date period. There is nothing unique about the Couch Incident.

[20] There is nothing in the defence that would require treating the Couch Incident separately. The defence position is that none of the events occurred: (See R. v. Lilly, 1983 CanLII 153 (SCC), [1983] 1 S.C.R. 794; R. v. Robinson (2004), 2004 CanLII 31916 (ON CA), 24 C.R. (6th) 185 (C.A.) and R. v. S.(H.S.), 2009 ONCA 102.)

[21] Accordingly, the Crown’s request to amend the date period is granted to a time period which includes the Couch Incident. I will not require that the Crown treat the Couch Incident separately on the Indictment.

2) Similar Fact Application

[22] The Crown seeks to tender the evidence of a prior and unrelated sexual relationship with C.E. as similar fact evidence in relation to the complaints made by D.B.

[23] Evidence of discreditable conduct is presumptively inadmissible. Generally, this exclusion prohibits character evidence to be used as circumstantial proof of conduct, i.e., to allow an inference from the “similar facts” that the accused has the propensity or disposition to do the type of acts charged and is therefore guilty of the offence. See R. v. Handy, 2002 SCC 56, [2002] S.C.J. No. 57. As was stated by Sopinka, J. at para. 31:

The principal reason or the exclusionary rule relating to propensity is that there is a natural human tendency to judge a person’s action on the basis of character. Particularly with juries there would be a strong inclination to conclude that a thief has stolen, a violent man has assaulted and a pedophile has engaged in pedophilic acts. Yet the policy of the law is wholly against this process of reasoning. R. v. B.(C.R.), 1990 CanLII 142 (SCC), [1990] S.C.J. No. 31 at para. 56.

[24] Similar fact evidence becomes admissible where the Crown demonstrates on a balance of probabilities that the evidence is relevant and probative to an issue at trial and where its probative value outweighs its prejudicial effect. R. v. Handy, supra, at para. 101.

[25] The initial assessment of similar fact evidence is about relevance and materiality. Probative value is assessed by:

1. Identifying the issue at trial to which the proposed similar facts are said to be relevant;

2. Identifying the factors that connect or distinguish the similar fact evidence from the facts alleged in the charge and the degree of similarity required to make the proposed evidence probative and admissible; and

3. Considering the strength of the similar fact evidence.

[26] The admission of the similar fact evidence must do more than simply blacken the character of the accused which, as a by-product, enhances the credibility of the complainant. What admissibility requires is “a persuasive degree of connection between the events of alleged similar acts and the offence charged in order to be capable of raising the necessary inferences.” R. v. J.M., 2010 ONCA 117 at para. 91.

[27] In Handy, the Supreme Court of Canada listed factors connecting the similar facts to the circumstances set out in the charge to include,

• Proximity in time of the similar acts

• Extent to which the other acts are similar in detail to the charged conduct

• Number of occurrences of the similar acts

• Circumstances surrounding or relating to the similar acts

• Any distinctive feature unifying the incidents

• Intervening events

• Any other factor which would tend to support or rebut the underlying unity of the similar acts.

[28] The similarities do not need to amount to a “signature” for similar fact evidence to be admissible. Nor is the assessment a mathematical calculation. The assessment is qualitative, not quantitative.[^2] As explained in R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33 at para. 60:

The judge’s task is not to add up similarities and dissimilarities and then, like an accountant, derive a net balance. At microscopic levels of detail, dissimilarities can always may be exaggerate and multiplied. This may result in distortion. At an excessively macroscopic level of generality on the other hand, the drawing of similarities may be too facile. Where to draw the balance is a matter of judgment. See also R. v. J.W., supra, at para. 49.

[29] The Crown takes the position that the evidence (relationship with C.E.) shows a pattern of conduct towards underage females. The relationship with C.E. is proximate in time, and at certain points, even overlaps with the relationship with D.B. The jury will be exposed to this relationship with C.E. in any event to some degree (the Couch Incident).

[30] The Crown argues that the accused’s sexual relationship with C.E. also provides corroboration to the complainant’s testimony. Given that the accused’s intention is to attack D.B.’s credibility on the basis of animus/motive, the Crown argues that the evidence is also necessary to balance out, or prevent the accused from providing a misleading picture.

[31] The defence opposes the admission of the evidence. The defence takes the position that the evidence is exceptionally prejudicial and outweighs its probative value. The defence argues that a previous relationship with an underage girl will simply blacken the character of the accused. Other than the age of the complainants, there is nothing unique about the conduct at issue.

[32] According to the defence, the relationship with C.E. will unnecessarily shift the focus away from the allegations themselves and lead the jury to engage in propensity based reasoning.

[33] The defence even argues that the Crown should be precluded from eliciting evidence about C.E.’s age in the context of the “Couch Incident”. Again, the defence argues that the reference to C.E.’s age may unduly influence the opinion of the jury.

[34] The courts have found that a “situation-specific propensity” can permit for the admission of similar fact evidence in cases where the accused has shown a pattern of conduct in relation to underage females.

[35] For example, in R. v. C.K., 2015 ONCA 747, the Court found that the similar fact evidence was capable of raising the inference that the accused had a situation-specific propensity. The court explained at para. 39:

The present case is very similar to the decision in R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at p. 739, admitting similar fact evidence that demonstrated a pattern of behaviour in which the accused established a parental relationship with young girls before engaging in sexual activities with them. The similar fact evidence in this case was capable of raising the inference that the appellant had a situation-specific propensity to sexually exploit young males over whom he exerted financial or emotional influence. [Emphasis added]

[36] A similar conclusion was reached in R. v. S.C., 2018 ONCA 454. In that case, the trial judge also admitted similar fact evidence of the accused's prior convictions. She found that the proposed similar evidence was sufficiently similar to raise the inference that the appellant had “situation-specific propensity to seek out young females connected by family relationships”. See also R. v. D.S.F., 1999 CanLII 3704 (ON CA), [1999] O.J. No. 688 (C.A.) at paras. 19 and 25.

[37] While I recognize situation-specific propensity has warranted the admission of similar fact evidence in other cases, in my view, the balance here does not warrant admission of the unrelated sexual activities with C.E.

[38] I agree with the defence that to permit the Crown to tender the evidence of the accused’s prior unrelated relationship with C.E., including his guilty plea, would not be warranted. In my view, the prejudice would outweigh the probative value of this evidence.

[39] There is no doubt that if the accused puts his character in issue and suggests that he would not engage in sexual relations with an underage female, such assertions by the accused will put this history with C.E. in issue.

[40] While I will not allow the Crown to tender evidence pertaining to the unrelated sexual activities with C.E. (subject to it being elicited by the defence or otherwise being put in issue), I will not prevent the Crown from eliciting C.E.’s age at the time of the Couch Incident. In my view, C.E.’s age is relevant and material to the timeline of events. It is also relevant to the accused’s openness to engage in the conduct in issue at the relevant time, particularly given the potential attack on the complainant’s credibility.

[41] Given its clear connection with the allegations, to exclude it would provide a misleading picture of the events. While the accused is entitled to a fair trial, the right to a fair trial does not entitle an accused to present a misleading impression. R. v. Hamilton, 2011 ONCA 399, at para. 180; See also R. v. Sipes, 2012 BCSC 351.

3) Section 276 Application

[42] The accused seeks to adduce evidence which would establish that the parties had a consensual relationship and moved in together in the fall of 2011, that they had a child together who was born on April 1, 2013 and that the relationship ended on September 5, 2013.

Procedural Requirements

[43] Where the accused seeks to adduce evidence of the complainant’s prior sexual activities, the accused must make a written application to the court setting out (a) detailed particulars of the evidence the accused seeks to adduce, and (b) the relevance of that evidence to an issue at trial (s. 276.1(1) and (2) of the Criminal Code).

[44] Where the accused submits such an application and the trial judge is satisfied the evidence is capable of being admitted under s. 276(2) of the Criminal Code, a hearing must be held (s. 276.1(4)). Both the jury and the public must be excluded from this hearing, and the complainant is not compellable (s. 276.2(1) and (2)).

[45] Following the hearing, the judge must provide reasons setting out whether any of the evidence is admissible (s. 276.2(3)). If any of the evidence is admissible, then the trial judge must instruct the jury on the purposes for which that evidence can — and cannot — be used (s. 276.4).

Substantive Requirements

[46] Section 276(1) of the Criminal Code provides that evidence that the complainant has engaged in sexual activity is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant:

(a) is more likely to have consented to the sexual activity that forms the subject matter of the charge; or

(b) is less worthy of belief.

[47] Section 276(2) of the Criminal Code provides that no evidence shall be adduced that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge unless:

(a) is of specific instances of sexual activity;

(b) is relevant to an issue at trial; and

(c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[48] In making this admissibility determination, the trial judge must take into account the factors listed under s. 276(3) of the Criminal Code, including:

(3) …

(a) The interests of justice, including the right of the accused to make a full answer and defence;

(b) society’s interest in encouraging the reporting of sexual assault offences;

(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;

(d) the need to remove from the fact-finding process any discriminatory belief or bias;

(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;

(f) the potential prejudice to the complainant’s personal dignity and right of privacy;

(g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and

(h) any other factor that the judge, provincial court judge or justice considers relevant.

[49] Section 276(1) of the Criminal Code has established substantive rules that prevent evidence of a complainant’s sexual activities from being used for improper purposes. The provision is directed at protecting the integrity of the trial by excluding irrelevant and misleading evidence, protect the accused’s right to a fair trial, and encourage the reporting of sexual offences by protecting the security and privacy of complainants.[^3] As the Supreme Court of Canada explained in R. v. Barton, 2019 SCC 33 at para. 60:

This section gives effect to the holding in Seaboyer that the “twin myths”, identified in paras. (a) and (b) respectively, “are simply not relevant at trial” and “can severely distort the trial process” (Darrach, at para. 33). It is “an expression of the fundamental rule that to be admissible, evidence must be relevant to a fact in issue” (L.S., at para. 45), and it confirms that the twin myths simply “have no place in a rational and just system of law” (Seaboyer, at p. 630). These myths are “prohibited not only as a matter of social policy but also as a matter of ‘false logic’” (R. v. Boone, 2016 ONCA 227, 347 O.A.C. 250, at para. 37, citing R. v. W.H., 2015 ONSC 3087, at para. 10; see also Seaboyer, at p. 605).

[50] The Supreme Court of Canada has made clear that bare assertions that such evidence will be relevant to context, narrative or credibility cannot satisfy s. 276(2) of the Criminal Code. A s. 276 application must provide “detailed particulars” which will allow a judge to meaningfully engage with the tests set out at s. 276(2) and (3). The accused must propose a use of the evidence that does not invoke twin-myth reasoning. These requirements are key to preserving the integrity of the trial by ensuring twin-myth reasoning masquerading as “context” or “narrative” does not ambush the proceedings. R. v. Goldfinch, 2019 SCC 38.

[51] In R. v. Goldfinch, the accused was charged with sexually assaulting a woman he had dated and lived with. The two remained friends and the complainant would occasionally come to the accused’s house and stay overnight. They would have sex on occasion.

[52] At trial, the accused argued that the sexual nature of the relationship provided important “context” without which the jury would be left with the artificial impression that he and the complainant had a platonic relationship. The trial judge agreed and admitted the evidence.

[53] A majority of the Court of Appeal allowed the Crown’s appeal and ordered a new trial. The Supreme Court of Canada agreed. In its view, the only inferences to be drawn from the evidence were those relying on the twin myths and limiting instructions could not cure the fact that the jury had heard inadmissible evidence for which there was no permissible use. In R. v. Goldfinch, supra, the Court explained at para. 47:

In this case, the obvious implication of the evidence of an ongoing sexual relationship was that because the complainant had consented to sex with Goldfinch in the past, in similar circumstances, it was more likely she had consented on the night in question. (emphasis added) As I set out in the sections that follow, the difficulty here was not that Goldfinch and the complainant had a relationship, but that Goldfinch could point to no relevant use for evidence of the sexual nature of the relationship. Such an approach misapprehends the nature of consent and is barred by s. 276(1).

See also R. v. Barton, 2019 SCC 33.

[54] Once the relevance beyond “twin myth” reasoning has been established, the Court must be satisfied that the relevance and materiality to the accused’s right to make full answer and defence is sufficient to outweigh the privacy interests compromised by confronting the complainant with their prior sexual activity. The Supreme Court of Canada explained the balancing under s. 276(3) in Goldfinch in the following way:

Balancing the s. 276(3) factors ultimately depends on the nature of the evidence being adduced and the factual matrix of the case. It will depend, in part, on how important the evidence is to the accused’s right to make full answer and defence. For example, the relative value of sexual history evidence will be significantly reduced if the accused can advance a particular theory without referring to that history. In contrast, where that evidence directly implicates the accused’s ability to raise a reasonable doubt, the evidence is obviously fundamental to full answer and defence (Mills, at paras. 71 and 94)

Application to the Facts of the Case

[55] The accused argues that the evidence of a subsequent relationship with the complainant is relevant and necessary to understand the narrative of the relationship. According to the defence, the complainant and the accused were a couple after the complainant turned 16 years of age, not before. They had a child together, broke up, and have been in a family law dispute ever since.

[56] The defence position is that the child custody dispute is what has led the complainant to fabricate the allegations. The inability to adduce the evidence of this subsequent relationship would compromise the accused’s right to make full answer and defence. It would prevent the defence from placing the sexual relationship with D.B. in context. It would also prevent the defence from providing the narrative behind the claim of fabrication.

[57] I agree with the defence that the “sexual activity” between the complainant and the accused is not being referenced, nor is it going to be used to have the jury engage in twin myth’s reasoning. Here, the narrative of the relationship and the family law proceedings is being used to understand the timeline for events.

[58] The defence has agreed that it will not be referring to the specific sexual activities between the complainant and the accused in any way. It is agreed that their sexual relations could have no possible relevance to the issues raised at trial.

[59] I am satisfied that the evidence sought to be tendered does not give rise to concerns under s. 276 of the Criminal Code. As such, the defence is permitted to reference the relationship between himself and the complainant provided that there is no focus on the sexual activity between the parties.

4) The Statement: Voluntariness and 10(b)

Background Facts

[60] The accused was serving a sentence at the time of his arrest. On June 8, 2017, the accused was brought into the Courthouse at 150 Bond Street (Oshawa Court house) on a judge’s order from Lindsay.

[61] The accused was taken down to meet with investigators Amanda Rabichaud and Paula Stephensen from the sexual assault unit.

[62] Court Officer Wanda Forsythe was the court officer who took the accused to the investigators from his cell to be interviewed by the investigating officers.

[63] It was Ms. Forsythe’s practice to tell the inmate where she was taking him/her. Ms. Forsythe did not take any detailed notes regarding her interactions with the accused. Ms. Forsythe testified that if there was any meaningful interaction, she would make note of it. Given that there were no notations in her notebook, it would have been a routine transfer.

[64] Ms. Forsythe testified that there was no noted conversations. She testified that she would not have had conversations with the accused regarding the charges. She would not have made any threats, or offered any inducements.

[65] While the statement was not on video, the full audio of the interactions with the officers and the accused was recorded.

[66] Officer Paula Stephensen arrested the accused at 10:21 a.m. and the accused was given his rights to counsel.

[67] After being given the rights to counsel, the accused asked to speak with David Barrison. Between 10:25 a.m. and 10:50 a.m., they made efforts to contact David Barrison, but he was sick. They tried to reach another partner from Mr. Barrison’s office, but he was involved in a trial.

[68] Investigating Officers (Stephensen and Rabichaud) offered to put the accused in touch with duty counsel to either provide advice and/or facilitate contact with a lawyer of choice. The accused agreed. In the context of this offer, the accused stated:

They’re just gonna give me advice and pretty sure they’re just gonna say whatever you do don’t say anything…

[69] The accused spoke to duty counsel. At approximately 11:55 a.m., after speaking with duty counsel for over 45 minutes, the accused returned to the interview room and advised officers that he was satisfied with the advice and was prepared to speak with the officers and give a statement.

[70] Nothing during the course of the statement indicates that the accused was pressured, induced or otherwise was tricked in providing the statement.

Analysis

[71] The Crown has brought an application to have the audio-taped statement given by the accused declared admissible. The Crown seeks to use the statement to cross-examine the accused should he decide to testify at trial.

[72] The defence seeks that the statement be excluded. The defence takes the position that the statement should be excluded for a number of reasons. The issues raised include:

(a) The record pertaining to the interactions with Court Officer Forsythe are incomplete. Her notes are scant, and there is a possibility that interactions occurred which would raise questions/concerns with the voluntariness of the statement;

(b) There was a confusing reference to s. 524 of the Criminal Code made by the officer that could have confused/induced the accused;

(c) The accused was not provided access to counsel of choice, David Barrison. There was no urgency to taking the statement. In the circumstances, duty counsel as a substitute was not adequate;

(d) The statement itself is intertwined with prejudicial comments pertaining to his previous charges relating to C.E. Accordingly, the prejudice flowing from admission of the statement would outweigh any potential probative value.

1) Section 10(b) of the Charter

[73] The purpose of s. 10(b) is to provide a detainee with an opportunity to obtain legal advice relevant to his legal situation. In the context of a custodial interrogation, chief among the rights that must be understood by the detainee is the right under s. 7 of the Charter to choose whether to cooperate with the police or not.

[74] The purpose of s. 10(b) of the Charter and its relationship with the right to silence under s. 7 were stated by McLachlin J. (as she then was) in R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, at pp. 176-77. These rights combine to ensure that a suspect is able to make a choice to speak to the police investigators that is both free and informed:

Section 7 confers on the detained person the right to choose whether to speak to the authorities or to remain silent. Section 10(b) requires that he be advised of his right to consult counsel and permitted to do so without delay.

The most important function of legal advice upon detention is to ensure that the accused understands his rights, chief among which is his right to silence. . . . Read together, ss. 7 and 10(b) confirm the right to silence in s. 7 and shed light on its nature.

The guarantee of the right to consult counsel confirms that the essence of the right is the accused’s freedom to choose whether to make a statement or not. The state is not obliged to protect the suspect against making a statement; indeed it is open to the state to use legitimate means of persuasion to encourage the suspect to do so. The state is, however, obliged to allow the suspect to make an informed choice about whether or not he will speak to the authorities. To assist in that choice, the suspect is given the right to counsel. [Emphasis added.]

[75] Section 10(b) of the Charter fulfills its purpose in two ways. First, it requires that the detainee be advised of his right to counsel. This is called the informational component. Second, it requires that the detainee be given an opportunity to exercise his right to consult counsel. This is called the implementational component. Failure to comply with either of these components frustrates the purpose of s. 10(b) and results in a breach of the detainee’s rights: R. v. Manninen, [1987] 1 SCR 1233, 1987 CanLII 67 (SCC).

[76] Implied in the second component is a duty on the police to hold off questioning until the detainee has had a reasonable opportunity to consult counsel. If the suspect states that he wishes to retain counsel all questioning must cease until he has been afforded the opportunity of consulting counsel.

[77] If detainees choose to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation: R. v. Black, [1989] 2 SCR 138, 1989 CanLII 75 (SCC).

[78] If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended: R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3; and Black.

Application to the Facts of the Case

[79] Nothing in the record here indicates that the accused’s s. 10(b) Charter rights were violated by a state denial of counsel of choice. While the accused suggested a counsel, nothing indicates the police were indifferent to the request.

[80] After attempts to contact that counsel had failed, investigating officers asked the accused if he would be willing to speak with a different lawyer. The accused never insisted on speaking with the lawyer he initially named. Nor was there any indication that police coerced the accused to speak with a different lawyer.

[81] The accused’s decision to speak with duty counsel, in the circumstances, was a choice he made. In my view, the statements of the Supreme Court of Canada in R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429 are apropos:

Considering the circumstances of this case as a whole, the majority of the Court of Appeal correctly found that Mr. Willier did not suffer a violation of his s. 10(b) right to counsel. In no way did the police interfere with Mr. Willier’s right to a reasonable opportunity to consult with counsel of choice by simply reminding him of the immediate availability of free Legal Aid after his unsuccessful attempt to call Mr. Royal. When Mr. Willier stated his preference to wait, Cst. Lahaie reasonably informed him that it was unlikely that Mr. Royal would be quick to return his call given that it was a Sunday, and reminded him of the immediate availability of duty counsel. Mr. Willier was not told that he could not wait to hear back from Mr. Royal, or that Legal Aid was his only recourse. There is no indication that his choice to call duty counsel was the product of coercion. The police had an informational duty to ensure that Mr. Willier was aware of the availability of Legal Aid, and compliance with that duty did not interfere with his right to a reasonable opportunity to contact counsel of choice. Mr. Willier was properly presented with another route by which to obtain legal advice, an option he voluntarily chose to exercise. [Emphasis added]

[82] Moreover, nothing gives me concerns regarding the voluntariness of the accused’s statement to the police.

[83] The audio recording makes clear that the accused was very comfortable providing his explanation of the events, answering the questions asked, and more than willing to cooperate with police.

[84] Nothing about the circumstances would indicate that the accused was threatened or was made any promises. There was no oppression or police trickery here. The audio makes clear that the statement was given voluntarily and with an operating mind, having meaningfully exercised his rights to counsel: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R.3.

[85] Given my ruling regarding the prior and unrelated sexual activity with C.E., the accused’s statement will have to be edited if the Crown intends to use it in any way. Any use of the statement is subject to my ruling regarding the similar fact application.

Justice C.F. de Sa

Released: August 27, 2019

[^1]: Moreover, as summarized in R. v. McDonald, 2013 ONCA 442, at para. 43 “[t]he requirement that a criminal jury be unanimous applies only to the essential elements of the offence and not to the facts that establish those elements: see R. v. Thatcher, 1987 CanLII 53 (SCC), [1987] 1 S.C.R. 652 (S.C.C.); R. v. M. (G.L.), 1999 BCCA 467, 128 B.C.A.C. 102 (B.C. C.A.).” R. v. M.(G.L.), supra, at paras. 12 – 14.

[^2]: “Collusion” offers an alternative explanation for the “coincidence” of evidence emanating from different witnesses and therefore destroys its probative value. Where there is some evidence of actual collusion, the Crown must satisfy the trial judge on a balance of probabilities, that the evidence of similar facts is not tainted with the collusion. At that point, the evidence would gain admission that it would then be for the jury to make the ultimate determination of its worth. R. v. Handy, supra, at para. 112; R. v. Shearing, supra, at para. 41.

If there is evidence of inadvertent tainting (some of the complainants had been exposed to the details of the offences through media reports or through communication with others in the drug subculture), the trial judge should permit the jury to decide the effect that possible collusion may have had on the weight to be assigned to the evidence of the complainants. R. v. Dorsey, 2012 ONCA 185 at paras. 29-30.

Where the complainants disclosed at the same time and both heard the other’s allegations and then used identical language in making their subsequent allegations to police, it was a reversible error to fail to caution the jury about the possibility of innocent tainting and the relevance of that to the reliability of the complainants’ evidence. R. v. M.B., 2011 ONCA 76 at paras. 20-21.

[^3]: There may be circumstances in which it would be appropriate for the trial judge to reopen a Criminal Code s. 276 ruling and hold a new hearing to reconsider the admissibility of prior sexual activity evidence, for example, in cases where the complainant may have made a prior inconsistent statement.