R. v. Lewis, 2019 ONSC 5919

BARRIE COURT FILE NO.: CR- 13-204

DATE: 20191011

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

AARON LEWIS

Applicant

I. Kandola, for the Respondent

E. Neubauer, for the Applicant

HEARD: September 23, 2019

REASONS FOR DECISION

rE: ADMISSIBILITY OF POLICE STATEMENT

PURSUANT TO S. 10(B) AND 24(2) OF THE cHARTER

CHRISTIE J.

OVERVIEW

[1] The Applicant, Aaron Lewis, has sought to have his statement to police excluded from his upcoming trial, pursuant to s. 24(2) of the Charter, alleging a violation of his section 10(b) Charter rights.

[2] This is a re-trial. At the first trial, Aaron Lewis brought the same application, seemingly on the same evidentiary record, to exclude his statement based on a violation of s. 10(b). The application was successful and the statement was excluded. On November 3, 2015, Aaron Lewis and his co-accused, Courtney Lewis, were convicted by a jury. On April 11, 2018, the Court of Appeal for Ontario overturned that conviction and ordered a new trial. The 10(b) / 24(2) ruling was not considered at the Court of Appeal given that it was a conviction appeal.

FACTS RE ARREST AND RIGHTS TO COUNSEL

[3] In the early hours of June 25, 2012, one or more individuals were involved in an altercation with a man named Ryan Turcotte, which resulted in Mr. Turcotte suffering a severe brain injury. Aaron Lewis and Courtney Lewis were jointly charged that they did commit the offence of aggravated assault in relation to this altercation that occurred in a parking lot at the Duckworth Plaza in Barrie.

[4] The police called the Applicant, Aaron Lewis, on June 26, 2012 to advise him that he was going to be charged with aggravated assault. The Applicant waited outside his home for police to arrive. At 12:53 p.m., Officer Greg Brickell arrived at the Applicant’s home, to find the Applicant waiting in the driveway. He advised the Applicant that he was under arrest for aggravated assault and handcuffed him. The Applicant was placed in the rear of the police cruiser and advised of his rights to counsel.

[5] The Applicant indicated that he wished to speak with a lawyer named Jamie Fox. He did not express any interest in speaking to duty counsel. At that point, the Applicant’s father approached and advised he was going to get in contact with a Toronto lawyer, named Jamie Fox, on behalf of his son. The Applicant’s father did not have the number at that time.

[6] At 1:20 p.m., the Applicant was paraded at the police station. He was then searched, cautioned, given his right to counsel for a second time, and lodged in a cell. Officer Troy Armstrong stood by in the booking area while the Applicant was processed. According to Officer Armstrong, while the Applicant was being booked he requested to “speak with his family’s lawyer, Jamie Fox”. Officer Armstrong responded that he would give him a call.

[7] Officer Brickell returned to his office to make notes. He then spoke with the Applicant’s girlfriend and father who had followed them to the police station and who were waiting at the front desk. At that point, the Applicant’s father advised that his son wanted to speak to Jamie Fox and provided Officer Brickell with a business card for the lawyer, which included the name and phone number. Officer Brickell gave this information to Officer Armstrong because he was the officer in charge of the case and would be the one conducting the interview. Officer Armstrong understood that the Applicant wanted to speak to this particular lawyer.

[8] At 2:04 p.m., Officer Armstrong called the business line of Jamie Fox and used the extension provided. The call went to voicemail for Mr. Fox. The voicemail indicated that he was not in the office currently, therefore, Officer Armstrong left a message. On the voicemail, there was also a message providing another extension to call in order to reach Mr. Fox. Therefore, after leaving a message for Mr. Fox on his personal voicemail, Officer Armstrong then called back, using the second extension provided, and spoke with a person. The person identified themselves as Mr. Fox’s assistant. The person advised Officer Armstrong that Mr. Fox was away from the office until at least 5:00 p.m. The assistant also advised that Mr. Fox was not a criminal lawyer, but that he did civil litigation. Officer Armstrong left his information with the assistant and advised them that Aaron Lewis was in custody. He did not ask for a cell phone number or any other means to contact Jamie Fox. Officer Armstrong was under the impression that, even when Mr. Fox did return to his office, he was not going to be making any calls.

[9] Officer Armstrong then spoke with the Applicant in the cells and advised him of the information that Mr. Fox was not a criminal lawyer and that he may not be available all day. He asked if there was another lawyer or if he would like to speak with duty counsel. The Applicant then requested to speak to duty counsel. Officer Armstrong agreed that the Applicant, Mr. Lewis, had not brought up duty counsel until he mentioned it.

[10] This exchange is reflected in the transcript of the Applicant’s statement to police, as Officer Armstrong recapped the conversation that had taken place when he first spoke with the Applicant:

DCA: Okay. Once at the station here you asked to speak with, uh, a lawyer named Jamie Fox.

AL: Yeah

DCA: Just so you know I’ve contacted that lawyer, I spoke with his secretary, he’s out until at least five o’clock today. She didn’t even think he…[she] might not be back today, she’s not sure. She also advised that he’s a….he’s more of a civil litigation lawyer.

AL: Yeah

DCA: Do you know what that means? Okay

AL: Uh, like--.

DCA: Okay. Well, yeah, this is… this is more criminal…criminal stuff. So after I learned that I went back to your cell, spoke with you there.

AL: Yeah

DCA: And I advised you you could speak with duty counsel or another lawyer, is that correct?

AL: Yeah.

DCA: Okay, and you asked to speak with duty counsel.

AL: Yeah.

DCA: And you’ve spoke with a lawyer in private here at the station on the phone.

AL: Yeah

[11] At the preliminary hearing, Officer Armstrong was cross-examined on this discussion and the following exchange took place:

Q: Okay. Do you know once you learn from an accused that he would like to speak to a certain lawyer and you’re unable to get a hold of that specific lawyer, what are your responsibilities at that point, sir?

A: To give him an effort to speak with that lawyer, which is reasonable.

Q: Okay and is that the full extent of your duties?

A: Yes and I spoke with Aaron at that point and advised him that Mr. Fox may not be available that day at all and that I was advised that he was a civil – civil litigation lawyer and not a criminal lawyer and I said I could put him in touch at that point with duty counsel or speak with another lawyer if he wished.

Q: Okay, that – those are the two options you told him, you could speak to the duty counsel lawyer, or you could speak to another lawyer?

A: Yeah

[12] The officer agreed at the preliminary hearing that the Applicant had never expressed any interest in duty counsel until he brought it up and that the Applicant had consistently requested Jamie Fox. It was only after the officer presented the Applicant with the two options of speaking with duty counsel or to another lawyer, that he then said he would speak to duty counsel. Officer Armstrong telephoned duty counsel at 2:12 p.m. and left a message. He stated that they generally take 15 or 20 minutes to call back. He did not speak to duty counsel directly, however, there was a note on the prisoner’s log that the Applicant did speak to duty counsel.

[13] At the preliminary hearing and at the first trial, Officer Armstrong admitted that he had no idea what the past history was between the Applicant and Mr. Fox. He had no idea whether Mr. Fox was a trusted advisor to the Applicant and his family. There was no evidence that the officer knew whether or not Mr. Fox had always been a civil litigator or whether he worked in partnership with criminal lawyers or could put the Applicant in touch with a trusted colleague.

[14] After speaking with duty counsel, at 3:21 p.m., the Applicant was escorted to the interview room. He provided a statement to the police which was approximately 27 minutes in length.

[15] Officer Armstrong worked until 7:00 p.m. that evening and Mr. Fox did not call back within that time.

POSITION OF THE PARTIES

[16] The Applicant argued that, notwithstanding the fact that he provided the police with the name of the lawyer he wished to speak to, the police did not advise him that he was entitled to wait a reasonable time to see if his counsel of choice could be contacted. Further, the police did not take reasonable steps to connect the Applicant with his counsel of choice. Rather, the police dissuaded the Applicant from obtaining advice from his counsel of choice. The Applicant argued that the admission of the statement, conscriptive evidence, would bring the administration of justice into disrepute, warranting exclusion under s. 24(2) of the Charter. In addition, the Applicant submitted that any re-litigation of this issue remains subject to the principle of judicial comity, and that the judgment of Justice Healey, should be followed as not “plainly wrong”.

[17] The Respondent argued that the officer did not steer the Applicant away from his counsel of choice; instead he took reasonable steps to ensure that the Applicant’s rights under s. 10(b) of the Charter were respected in a timely fashion. The Applicant did not waive his rights to counsel, rather he had them fulfilled through his discussion with duty counsel. Further, the Respondent argued that a new trial in the same jurisdiction is not subject to the principles of judicial comity. The Respondent requested that the application be dismissed, or in the alternative, that the evidence not be excluded pursuant to s. 24(2)

ANALYSIS

Judicial Comity

[18] As previously stated, this is a re-trial. This same application was brought before the original trial judge, on the same evidentiary footing. No evidence was called on this application, but rather the parties chose to rely on a written record, including the transcript of the preliminary hearing, and the transcript of the viva voce evidence called before the original trial judge. No new evidence was submitted. The ruling of the original trial judge did not play any part in the appeal, due to the fact that, even though the Applicant was successful on the application at the original trial, he was ultimately convicted by the jury, and the appeal was against conviction.

[19] The decision of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them. The courts have suggested that decisions such as these should be followed unless the decision is “plainly wrong”. See: R. v. Scarlett, 2013 ONSC 562, [2013] O.J. NO. 644 (S.C.) at para. 43

[20] Justice Healey’s decision was thorough and sound. Her reasons for finding a s. 10(b) breach were based on the fact that the officer did not continue to attempt to connect the Applicant with his counsel of choice after he was told that the lawyer was a civil litigator. She further found that the officer did not do enough to facilitate the Applicant’s right to counsel of choice. Finally, the trial judge found that the officer was required to give a “Prosper-type” warning to the Applicant. There is legal support for all of the findings made by Justice Healey. As previously stated, the record that was before Justice Healey is the same record which was presented to this court.

[21] Having said this however, it is not on this basis that this application will be decided. In my view, based on the fact that this case has been successfully appealed, it is incumbent on this court to do its own analysis of the issues.

Section 10(b) - General

[22] All Charter rights have a purpose. In the context of section 10(b), the general purpose is to provide a detainee with informed choice. More specifically, the purpose is to provide a detainee with access to legal advice in relation to a present legal predicament in order to assist that detainee in choosing whether or not to speak with the police or whether or not to cooperate in some way with the police investigation. In R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, the court stated:

[26] The purpose of the right to counsel is "to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights": R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at pp. 1242-43. The emphasis, therefore, is on assuring that the detainee's decision to cooperate with the investigation or decline to do so is free and informed. Section 10(b) does not guarantee that the detainee's decision is wise; nor does it guard against subjective factors that may influence the decision. Its purpose is simply to give detainees the opportunity to access legal advice relevant to that choice.

[23] The Supreme Court of Canada has recognized and repeatedly affirmed that the right to counsel imposes at least three duties on the police, namely:

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel -- informational component;

(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances) -- implementational component; and

(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

See: Sinclair, at para. 27; R. v. Willier, 2010 SCC 37, [2010] S.C.J. No. 37 at para. 29; R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 192, R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at pp. 1241-42; R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at p. 890; and R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190, at pp. 203-4

Counsel of Choice

[24] There is no question that the right to counsel includes a right to counsel of choice. In R. v. McCallen, 1999 CanLII 3685 (ON CA), [1999] O.J. No. 202 (C.A.), the court discussed the importance of this right and the rationale behind it. The court stated:

[34] There are sound reasons why this right was considered to be a fundamental component of the criminal justice system well before the enactment of the Charter and why it was recognized as a right deserving of constitutional protection in the Charter. The solicitor-client relationship is anchored on the premise that clients should be able to have complete trust and confidence in the counsel who represent their interests. Clients must feel free to disclose the most personal, intimate and sometimes damaging information to their counsel, secure in the understanding that the information will be treated in confidence and will be used or not used, within the boundaries of counsels' ethical constraints, in the clients' best interests. The law recognizes the uniqueness of this confidential relationship by providing special protection from compelled disclosure of information that is exchanged between clients and their counsel.

[36] The reasons why clients may choose one lawyer rather than another may vary widely and will often turn on personal preferences or other factors that do not lend themselves to objective measurement. Professional reputation and competence will no doubt be important factors in the choice of counsel, but it would understate the full nature of the relationship to suggest that the choice be limited to those considerations. The very nature of the right is that the subjective choice of the client must be respected and protected. Absent compelling reasons involving the public interest, the government and the courts need not be involved in decisions about which counsel clients may choose to act on their behalf.

[37] In addition to constituting a valuable personal right to clients, s. 10(b) provides a right that is an important component in the objective perception of fairness of the criminal justice system. Criminal proceedings are adversarial in nature and pit the accused against the authority of the state. Without adequate safeguards the resulting contest may be unfairly weighted in favour of the state. The right to have the assistance of counsel is high on the list of those protections for accused persons which enable them to fully defend the charges brought against them. Including with this fundamental right to counsel, the additional right to choose one's own counsel enhances the objective perception of fairness because it avoids the spectre of state or court interference in a decision that quite properly should be the personal decision of the individual whose interests are at stake and whose interests the counsel will represent.

[38] The corollary to this point, which is central to this case, is that the perception of fairness will be damaged, and in many cases severely so, if accused persons are improperly or unfairly denied the opportunity to be represented by the counsel they choose.

[25] These words from the Court of Appeal for Ontario are powerful and leave one with the impression that the right to counsel is almost boundless. However, there are limits to the right to counsel and to counsel of choice.

[26] There is, of course, a duty on the detainee to be reasonably diligent in the pursuit of their rights. In R. v. Bartle 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173 at para. 18 and 19:

[18] Importantly, the right to counsel under s. 10(b) is not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended: R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435, at p. 439, and R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, at pp. 154-55. Furthermore, the rights guaranteed by s. 10(b) may be waived by the detainee, although the standard for waiver will be high, especially in circumstances where the alleged waiver has been implicit: Clarkson, at pp. 394-96; Manninen, at p. 1244; Black, at pp. 156-57; Brydges, at p. 204; and Evans, at pp. 893-94.

[19] Under these circumstances, it is critical that the information component of the right to counsel be comprehensive in scope and that it be presented by police authorities in a "timely and comprehensible" manner: R. v. Dubois, 1990 CanLII 3298 (QC CA), [1990] R.J.Q. 681 (C.A.), (1990), 54 C.C.C. (3d) 166, at pp. 697 and 196 respectively. Unless they are clearly and fully informed of their rights at the outset, detainees cannot be expected to make informed choices and decisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as their right to silence: Hebert. Moreover, in light of the rule 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, it is important that the standard caution given to detainees be as instructive and clear as possible: R. v. Baig, 1987 CanLII 40 (SCC), [1987] 2 S.C.R. 537, at p. 540, and Evans, at p. 891.

[27] In R. v. Willier, 2010 SCC 37, [2010] S.C.J. No. 37, the detainee had, initially, exercised his right to counsel by speaking with duty counsel. The next day, when given another opportunity to speak with counsel, he attempted to reach a specific lawyer, but was unsuccessful and left a message. The police asked if he wished to speak with another lawyer to which he responded that he wanted to wait for his counsel of choice to call back. Given the time, the police advised the detained that his counsel of choice was unlikely to respond until his office reopened the following day. The police again informed the detainee of the availability of duty counsel. Mr. Willier then briefly spoke to duty counsel. Less than an hour later, the police interviewed Mr. Willier, however, he was advised that he could speak to counsel again at any point. No further requests for counsel were made and he stated that he was satisfied with the advice received from duty counsel. The Supreme Court found no breach of s. 10(b) in these circumstances. The court stated:

[35] Should detainees opt 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: Black. 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. As Lamer J. emphasized in Ross, diligence must also accompany a detainee's exercise of the right to counsel of choice (pp. 10-11):

Although an accused or detained person has the right to choose counsel, it must be noted that, as this Court said in R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435, a detainee must be reasonably diligent in the exercise of these rights and if he is not, the correlative duties imposed on the police and set out in Manninen ( 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233) are suspended. Reasonable diligence in the exercise of the right to choose one's counsel depends upon the context facing the accused or detained person. On being arrested, for example, the detained person is faced with an immediate need for legal advice and must exercise reasonable diligence accordingly. By contrast, when seeking the best lawyer to conduct a trial, the accused person faces no such immediacy. Nevertheless, accused or detained persons have a right to choose their counsel and it is only if the lawyer chosen cannot be available within a reasonable time that the detainee or the accused should be expected to exercise the right to counsel by calling another lawyer.

See also: R. v. McCrimmon, 2010 SCC 36 at paras. 17-19

[28] The case of Willier was, quite obviously, different than the circumstances in R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, in which the failed attempt to reach counsel of choice resulted in no legal advice from counsel at all – the same as in R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3. Prosper, therefore, mandated that the police, in the circumstances of a waiver of rights to counsel, explicitly inform the detainee of his or her right to a reasonable opportunity to contact counsel and of the obligation on the part of the police to hold off in their questioning until then. However, in Willier, where the detainee, faced with the reality that they were unable to reach their counsel of choice and then spoke to another lawyer, the Supreme Court said those circumstances are different. The court stated:

[38] The circumstances prompting this Court to articulate the additional informational duty in Prosper are fundamentally different from those in the case at hand. As noted above, a Prosper warning is warranted in circumstances where a detainee is diligent but unsuccessful in contacting a lawyer and subsequently declines any opportunity to consult with counsel. Section 10(b)'s provision of a reasonable opportunity to consult with counsel is a fundamental guarantee aimed at mitigating a detainee's legal vulnerability while under state control. It affords detainees the chance to access information relevant to their self-incrimination and liberty interests: Bartle. The Prosper warning ensures that detainees are aware that their right to counsel is not exhausted by their unsuccessful attempts to contact a lawyer. This additional informational safeguard is warranted when a detainee indicates an intent to forego s. 10(b)'s protections in their entirety, ensuring that any choice to do so is fully informed. In Prosper, the detainee ceded any opportunity to mitigate his legal disadvantage and benefit from the protections afforded by s. 10(b), triggering the additional informational warning.

[39] The circumstances of this case are not analogous. The concerns animating the provision of a Prosper warning do not arise when a detainee is unsuccessful in contacting a specific lawyer and simply opts to speak with another. In no way did Mr. Willier attempt to relinquish his right to counsel and thus any opportunity to mitigate his legal disadvantage. He made no attempt to waive his s. 10(b) right. Instead, unsuccessful in contacting Mr. Royal, he exercised his right to counsel by opting to speak with Legal Aid. As such, the police were under no obligation to provide him with a Prosper warning, and its absence fails to establish a Charter breach.

[29] The comments in Willier would seem to be premised on the fact that the detainee was given an option and made a choice, the very premise upon which 10(b) Charter rights are based. The existence of a true option and an informed choice must, therefore, be critical in any s. 10(b) analysis.

Duties on Police

[30] Since Willier, two issues have repeatedly arisen in the context of failed attempts at reaching counsel of choice. One issue often requiring comment by the courts is focused on the duty of police to facilitate contact with counsel of choice. Clearly, there is such a duty, however, the courts are often asked to rule on whether the police took sufficient steps to satisfy that duty in any given case. The second issue that has arisen often is the question of whether the police should be required to advise the detainee that they have a right to wait a reasonable time to speak with counsel of choice, during which time the police have a duty to hold off from eliciting evidence, rather than accepting some other alternative, such as duty counsel. Often, as in the case at bar, these issues are interrelated.

[31] Prior to Willier, there are cases that suggest that a perfunctory effort on the part of the police is sufficient in circumstances where the detainee, ultimately, speaks to duty counsel and makes no further requests or complaints. See: R. v. Eakin, 2000 CanLII 2052 (ON CA), [2000] O.J. No. 1670 (C.A.); R. v. Littleford, 2001 CanLII 8559 (ON CA), [2001] O.J. No. 2437 (C.A.); R. v. Kumarasamy, [2002] O.J. No. 303 (S.C.J.); R. v. Richfield, 2003 CanLII 52164 (ON CA), [2003] O.J. No. 3230 (C.A.). In R. v. Blackett, [2006] O.J. No. 2999 (S.C.A.), Ferguson J. suggested the following approach:

[24] The trial judge must look at the context: R. v. Leclair (1989), 1989 CanLII 134 (SCC), 46 C.C.C. (3d) 129 (S.C.C.) at 135. The trial judge must assess whether the accused was afforded a reasonable opportunity to consult with counsel by considering all the surrounding circumstances: R. v. Prosper (1994), 1994 CanLII 65 (SCC), 92 C.C.C. (3d) 353 (S.C.C.) at 375.

[29] It appears to me that the caselaw dictates this three stage analysis of these s. 10(b) "right to counsel of choice" situations:

(a) Did the police fulfil their duty to act diligently in facilitating the right of the accused to consult counsel of choice? If the trial judge finds they fulfilled their duty then there is no breach of s. 10(b).

(b) If the police did not fulfill their duty then there are two possibilities:

(i)If the police breached their duty because they took no step to facilitate the right to counsel, then a breach of s. 10(b) is established: Kumarasamy.

(ii)If the police breached their duty because they made some effort but it is found not to constitute "reasonable diligence", the trial judge must next decide whether the accused fulfilled his or her duty to act diligently to exercise the right to counsel. If the answer is yes, then a s. 10(b) breach is made out. If the answer is no, then this trumps the breach of duty by the police and there is no breach of s. 10(b): Brydges; Richfield.

(c) If a breach of s. 10(b) is established the court must then go on to consider whether or not to exclude the consequent evidence under s. 24(2). The conduct of the accused is a factor which the court can consider: Tremblay; Richfield. The court in Richfield suggested that the threshold for exclusion is higher in breathalyzer cases: at para. 18.

[32] It should be noted that generally, in Ontario, the police do not provide telephones, telephone directories, or any tools for that matter, to detainees. Instead, the police take the information from the detainee and then make the call. In these circumstances, the police officer has complete control over what steps are taken to reach counsel of choice. In these circumstances, some courts have held that more than perfunctory effort must be required in order to demonstrate reasonable diligence.

[33] In R. v. Maciel, 2016 ONCJ 563, [2016] O.J. No. 4789 (C.J.), Stribopoulos J. questioned police operational procedures, specifically the fact that some police forces have assumed the responsibility of contacting counsel on behalf of those who are in police custody as opposed to allowing the person in custody access to a phone, a phone book or even the Internet. The court stated:

[42] …[I]t is very much the function of the courts to assess the adequacy of police efforts in the discharge of their constitutional obligations. It follows that if the police assume the responsibility of contacting counsel of choice on behalf of a person who is in their custody, then it is for the courts to assess the adequacy of those efforts. Of course, this begs the question as to what standard should be used in evaluating the adequacy of police efforts.

[43] If the police did not assume this responsibility, those in detention would be expected to exercise reasonable diligence in contacting their lawyer of choice. Where the police take on this function on behalf of the detainee, it seems eminently sensible to subject their efforts to the same standard. Anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing. In that regard, I completely agree with the comments of Justice Horkins, who noted:

When the police, as an institution, decide to take control of the accused's means of accessing counsel of choice, they also assume the obligation to pursue that constitutional right with all the same effort and diligence that the accused himself would apply.

I believe this standard is in keeping with the duty upon the police to facilitate contact with a detainee's counsel of choice. I therefore intend to apply it in assessing the adequacy of the police efforts in this case.

[34] These comments would seem to be in line with the guidance from the Court of Appeal for Ontario. In R. v. Traicheff, [2010] O.J. No. 5355 (C.A.), the court, in a short endorsement stated in part:

[2] In finding a breach of s. 10(b) of the Charter, the trial judge said at

para. 27 of his reasons:

Appropriately the police should advise the detainee after waiting a reasonable period of time for his lawyer to return the call that no call has come in from his lawyer and ask him if he would like to consult another lawyer. Alternatively the police should ask the detainee whether he has another telephone number where his counsel of choice could be reached or give him a telephone directory to see if he could find his lawyer’s name and another telephone number where he could be reached.

We agree with these observations. Indeed they reflect the Supreme Court of Canada’s decision in R. v. Willier, 2010 SCC 37 (S.C.C.), where at para. 41 McLaughlin C.J.C. and Charron J. wrote that s. 10(b) requires the police to afford detainees not only a reasonable opportunity to contact counsel of their choice but as well to facilitate that contact.

[35] In addition to Maciel referred to above, other Ontario Court of Justice decisions have suggested that if the police are going to continue to maintain control over contacting counsel on behalf of detainees, this should lead to a heightened duty on the police to ensure that appropriate steps are taken to reach counsel. See: R. v. Ali, 2018 ONCJ 203, [2018] O.J. No. 1662 (C.J.); R. v. Ebrahim, [2018] O.J. NO. 6836 (C.J.) It would appear that the once acceptable perfunctory effort may no longer reach the reasonable diligence standard, especially where the police choose to control the tools necessary for the detainee to reach counsel, such as telephones and telephone directories.

[36] The second issue that has arisen often is the question of whether the police should be required to advise the detainee that they have a right to wait a reasonable time to speak with counsel of choice, rather than immediately accepting some other alternative, such as duty counsel, and that the police have a duty to hold off during this time.

[37] Many courts in Ontario have already recognised that the police have an obligation to inform the detainee of the right to wait a reasonable time to speak with counsel. In reviewing the cases cited, it would appear that what those courts are really concerned about is where the police make the unsuccessful attempt to contact counsel of choice and then, within a very short time, default to duty counsel, leaving the detainee with the impression that they have no choice to wait, but rather that they must speak to duty counsel. See: R. v. Syblis, [2015] O.J. No. 7276 (C.J.); R. v. Dam, [2016] O.J. No. 3950 (C.J.); R. v. Duong, [2016] O.J. No. 5266 (C.J.); R. v. Howell, [2018] O.J. No. 109; R. v. Randle, [2018] O.J. No. 1507; R. v. Manuel, [2018] O.J. No. 2955 (C.J.). See contra: R. v. Wilson, [2016] O.J. No. 183 (C.J.); R. v. Morales, [2019] O.J. No. 2524 (C.J.) Again, the analysis appears to turn on the presence or absence of informed choice.

[38] The courts have held that there is no breach of s. 10(b) of the Charter if the detainee speaks to duty counsel after asking to speak to their own counsel, where the police first attempt to contact private counsel and are unable to do so. However, this is premised on the fact that the police did not influence that decision in any way. In R. v. Kumarasamy [2002] O.J. No. 303 (S.C.J.) at para. 20 and 21:

[20] Since the trial, the Court of Appeal released the judgment in R. v. Littleford, 2001 CanLII 8559 (ON CA), [2001] O.J. No. 2437, which is instructive on the issues to be determined. That judgment, in addition to R. v. Mayo (1999), 1999 CanLII 2695 (ON CA), 133 C.C.C. (3d) 168 (Ont. C.A.), establishes that there is no breach of s. 10(b) of the Charter if the detainee speaks to duty counsel after asking to speak to their own counsel, where the police first attempt to contact private counsel and are unable to do so. Unless the appellant did not understand the rights from counsel, had received inadequate legal advice, and still sought to contact his or her counsel, or the police conduct interfered with the detainee's ability to assert the rights, there is no violation of s. 10(b).

[21] What the cases do not establish is that police officers can go directly to duty counsel when a detainee wants to contact his or her counsel of choice. With respect, I disagree with the trial judge’s conclusion that the police are not obliged to contact counsel of choice where the detainee has spoken to duty counsel. The availability of duty counsel 24 hours a day cannot be used to trump a detainee’s right to counsel of choice.

This decision of Durno J., holding that duty counsel will satisfy the requirements of s. 10(b), is premised on the fact that the police did not interfere in any way with the detainees choice of counsel.

[39] More recently, in the case of R. v. Vernon, [2016] O.J. No. 1383 (C.A.), the Court of Appeal for Ontario upheld the decision of the summary conviction appeal court, which upheld the trial judge’s decision, finding a s. 10(b) violation occurred where the police failed to facilitate contact with the detainees counsel of choice. In the reasons of the summary conviction appeal court, R. v. Vernon, 2015 ONSC 3943, [2015] O.J. No. 4157 (S.C.), Justice Ellies states:

[21] … in my view, the trial judge was correct in finding that the police breached the informational component in the particular circumstances of this case where the officer so quickly resorted to duty counsel without informing the respondent of his right to wait a reasonable period of time for counsel of choice to call back.

[27] Importantly, the Supreme Court in Willier specifically held that the accused's decision to contact duty counsel had not been the result of coercion…

In Vernon, the accused testified that he “didn’t have a choice” as far as waiting for his chosen counsel. The police officer had simply said, “I can’t get a hold of Mr. Carruthers, come talk to duty counsel”. He testified, “I wasn’t given an option, and nor did I know I had an option”. Within 15 minutes of leaving a message for the lawyer of choice, the arresting officer contacted duty counsel. The summary conviction appeal court judge stated, “Within 15 minutes of leaving that message, the respondent was provided with what seemed to him to be the only reasonable chance that he would get to speak to a lawyer. Although the officer testified that he would have allowed the respondent to speak to his lawyer of choice, had he called, the trial judge held that it was not clear whether this was explained to the respondent.”

[40] Further, in Vernon, the summary conviction appeal court found that the police had failed to wait and failed to facilitate. The court discussed the obligations, if any, on the detainee in these circumstances:

[44] In summary, I conclude that there is no positive obligation on a detainee to express dissatisfaction with the advice of duty counsel or to continue to request an opportunity to speak with counsel of choice in order to establish a breach of that right under s. 10(b). Indeed, in my view, it would be improper to impose such an obligation where, as here, the validity of any waiver of the right is in issue. Absent the type of circumstances that were present in Willier, where it was held that the detainee had simply chosen to speak to another lawyer rather than waive his right to counsel of choice, the onus is on the Crown to establish a valid waiver. To impose the obligation urged upon the court by the Crown would be to reverse that onus. Instead, evidence that a detainee failed to complain, seemed satisfied or no longer asked to speak to counsel of choice after speaking with duty counsel is simply evidence to be considered on the issue of waiver, where that issue arises.

[45] In my view, the trial judge in the case at bar made no error in concluding that the police failed to provide the respondent with a reasonable opportunity to speak with counsel of choice, despite the fact that the respondent did not express dissatisfaction with the advice he received or request a further opportunity to speak with his lawyer. Unlike the accused in Littleford, the accused in this case did testify at the voir dire with respect to the s. 10(b) issue and, as I have indicated, the trial judge accepted his evidence that he felt he had no choice but to speak with duty counsel.

[46] Further, there was no urgency requiring the respondent to give up on counsel of choice. Based on the trial judge’s finding regarding the time of driving, at para. 48 of his reasons, the arresting officer still had anywhere from 24 to 39 minutes before the two-hour time period set out in s. 258(1)I(ii) of the Criminal Code elapsed at the time he presented the respondent with the fact that duty counsel was on the phone.

[48] It is true that the police do not need to exhaust all reasonable possibilities in fulfilment of the duty to facilitate contact with counsel: see R. v. Winterfield, 2010 ONSC 1288, 93 M.V.R. (5th) 34, at para. 62. However, I share the trial judge’s view that they must do more than they did in this case. The police did nothing apart from leaving a message on the voice mail of the respondent’s counsel of choice. In essence, they “defaulted to duty counsel”. That is not enough.

[41] In many circumstances, counsel of choice will not be immediately available. This is simply reality. In those circumstances, the detainee is entitled to wait a reasonable time before they will be expected to contact alternative counsel. What amounts to a reasonable time will depend on the facts of any given case. It would appear to be only logical that, where the police are suggesting the detainee forego their counsel of choice and speak to other counsel or duty counsel, the police must, minimally, advise the detainee that they are entitled to wait a reasonable time to speak to their counsel of choice. The detainee should never be left with the impression that where their counsel of choice cannot be immediately reached, the only option at that point is duty counsel. During this waiting period, the police certainly should not be encouraging the detainee to forego their original choice and to make another choice. If this is permitted, the right to counsel of choice would be meaningless. The officer’s opinion as to the adequacy of chosen counsel is completely irrelevant and should never play a part in the informational or implementational components of rights to counsel.

[42] When this same application was argued as part of the first trial in this matter, cited as R. v. Lewis, [2015] O.J. No. 7796 (S.C.), Healey J. stated:

[9] The rights granted to an accused under s. 10(b) must never be modified by a police officer’s perception of the area of expertise of the lawyer from whom the accused person wishes to seek advice, even if factually correct. The choice of the accused person to contact a particular lawyer upon detention must be respected and reasonably facilitated, regardless of whether that lawyer practices criminal law…

This court is in absolute agreement with these comments.

[43] It is the view of this court that, on the evidence in this case, there was a violation of s. 10(b) at the police station. Having considered the totality of the evidence, the following facts are found by this court and must be highlighted:

(a) Mr. Lewis made it abundantly clear from the time of his arrest that he wished to speak to his “family’s lawyer”, Jamie Fox.

(b) Not only did Mr. Lewis express this wish, consistently, a number of times, but so did his father, who went to the police station and provided a business card for Mr. Fox.

(c) Mr. Lewis, in the control of the police, acted as reasonably diligent as he could in the circumstances that he faced.

(d) Mr. Lewis was not provided with any tools in order to call Mr. Fox himself or to search for an alternative number for Mr. Fox. Mr. Lewis was not permitted to speak to the assistant to ask whether there was another means to contact Mr. Fox.

(e) There is no question that the police did take some steps to reach Mr. Fox, by calling his office, leaving a message on his voicemail, and speaking to the assistant. However, the officer did not ask for a cell phone number or any other means to reach Mr. Fox, as it would appear that the officer made his own decision about the suitability of Mr. Fox when he heard that he was a civil litigator. This was not the officer’s decision to make.

(f) The officer, without advising the Applicant of his right to wait a reasonable time for counsel of choice to call back, left the Applicant with only two options, another lawyer or duty counsel. By doing so, the officer took away options that the Applicant still had open to him, which were to wait a reasonable time for counsel to call back, or to attempt to reach that counsel in another way. The Respondent suggested that the Applicant had both the ability and the capacity to ask to wait for his lawyer and he did not. The Respondent suggested that the detainee could have stated he would wait until his lawyer became available, inquire as to whether the police could contact his lawyer again, ask if police attempted to get another number, or request information from his father. It is the view of this court that this argument fails to appreciate the vulnerable circumstances that the Applicant was in at the time. Based on the information provided by Officer Armstrong that he could call another lawyer or speak to duty counsel, all of these other potential options were actively removed. By suggesting that the Applicant made a choice to speak to duty counsel puts a whole new meaning on the word choice – a meaning that is not consistent with the jurisprudence.

(g) The Respondent suggested that there was a positive obligation on the Applicant to express discontent, otherwise he is not entitled to Charter relief. Vernon would seem to suggest otherwise.

(h) The Respondent suggested that the police were faced with the reality of being told that Mr. Fox would not be available until after 5:00 p.m., if at all, and therefore, the police were left with the reality of an indefinite time frame to provide rights to counsel, and the reality that no rights to counsel would have been implemented at all. By suggesting duty counsel, the police fulfilled an essential obligation. The Respondent further points to the fact that Jamie Fox never called back. This misses the point that the police could have made other attempts to reach Mr. Fox but clearly decided not to when they learned that he was a civil litigator. This was not their decision to make. The fact that Mr. Fox never called back is irrelevant to whether there was a breach of the Applicant’s Charter rights at the time that it occurred with the information that was available.

[44] Given that the Applicant, and his father, had expressed on more than one occasion in this short period of time that he wished to speak to Jamie Fox, the police were obligated to hold off from interviewing the Applicant until he had a reasonable opportunity to exercise his right to speak to counsel of his choice. This court does not go so far as to say that it is necessary in every case for the officer to advise the detainee of their duty to hold off. However, where the accused has clearly expressed their desire to speak to a particular lawyer that cannot be immediately contacted, and where, within that reasonable waiting time, the police choose to present the detainee with the idea of speaking to duty counsel or another lawyer, certainly the police must tell the detainee that they are entitled to wait a reasonable time to connect with counsel of choice and that the police have a duty to hold off on questioning during this time. The length of time that is reasonable will differ from case to case depending on the circumstances.

[45] The onus lies on the Applicant to demonstrate, on a balance of probabilities, that his s. 10(b) rights have been breached. It is the view of this court that he has met that onus.

24(2) Analysis

[46] In R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, the Supreme Court of Canada set out the approach to be taken to section 24(2) of the Charter, articulating a three-part inquiry designed to determine in all of the circumstances whether the admission of the evidence would bring the administration of justice into disrepute. In determining whether evidence should be excluded under section 24(2), consideration is to be given to all of the circumstances, while balancing three factors:

(1) the seriousness of the Charter-infringing state conduct;

(2) the impact of the breach on the defendant's Charter protected interests; and

(3) the societal interest in an adjudication of the case on the merits.

[47] It is the view of this court that this was not a trivial breach. In circumstances of detention, the person is completely at the mercy of the police who are processing them. The right to counsel is afforded to a detainee to ensure that the detainee is aware of their rights when in those circumstances, and to provide advice to assist them with the choice of making a statement to the police or in other ways assisting with the investigation. Counsel of choice is the subjective right of the detainee. The police should never detract from that right by attempting to steer the detainee away from a lawyer of their choosing. It is the view of this court that once Officer Armstrong heard that Mr. Fox was a civil litigator, his attempts to find Mr. Fox came to an abrupt halt because he decided that this was not the type of lawyer that the Applicant needed. This was not Officer Armstrong’s decision to make. It is not an onerous requirement to expect the police to allow the detainee to choose counsel without interference from the police. This court does not believe that the officers in this case were acting in bad faith. Nonetheless, the conduct cannot be mitigated by good faith, as it involved an unreasonable and complete disregard for basic requirements. See: R. v. Buhay, 2003 SCC 30, [2003] S.C.J. No. 30 at para. 59.

[48] Grant requires an examination of the police conduct and a determination of where it fits on a spectrum from a mere technical breach at one end to bad faith violations at the other. The circumstances of this case are that the officer undermined the Applicant’s right to counsel by forming his own view of the chosen counsel, and then steering him away from the lawyer of his choosing and toward duty counsel. There was no reason for this. There was no urgency to having the Applicant interviewed immediately. The officer did not act in bad faith, however, his actions to steer the Applicant away from his counsel of choice, after having formed his own view of the adequacy of counsel chosen, certainly is a serious error.

[49] On the first branch of the Grant test, the s. 10(b) breach was serious and favours exclusion of the evidence.

[50] With respect to the effect of the breach on the Applicant’s protected interests, a violation of an accused’s right to counsel will usually be found to significantly undermine that accused’s right to make an informed decision of whether to speak to police or not. As stated fairly recently in R. v. Rover, 2018 ONCA 745, [2018] O.J. No. 4646 (C.A.)

[45] The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

See also: Grant, at para. 77

[51] The entire purpose behind s. 10(b) Charter rights, as referenced above, is to provide a detainee with informed choice; in particular, to provide access to legal advice in order to assist them in choosing whether or not to speak with the police or whether or not to cooperate in some way with the police investigation. Ironically, the Applicant was deprived of his opportunity to have those choices explained to him by someone he chose.

[52] As Justice Healey stated when she excluded the statement at the first trial:

[18] …Mr. Lewis chose Mr. Fox for reasons unknown, other than the fact that he was described as the Lewis’ family lawyer. There was no evidence of the relationship between them. What we will never know is, had Mr. Fox been the one to explain to Mr. Lewis the reasons why he should say nothing, whether his advice would have had a greater impact on Mr. Lewis’ subsequent behaviour during the interview. Given the importance of the right of a detained person to not self-incriminate, in my view the police conduct had a potentially significant, negative impact on Mr. Lewis, and the benefit of any doubt should be given to him and weigh heavily in favour of exclusion of the evidence.

[53] The infringement in this case was serious, and completely unnecessary. Consideration of this Grant factor favours exclusion.

[54] With respect to the societal interest in a trial on the merits, the exclusion of this evidence will not stop the trial from proceeding. The exclusion of this evidence will simply ensure that evidence gathered by improper methods will not find its way into the trial.

[55] Considering all three factors in the circumstances of this case, it is necessary to determine whether the overall, long-term reputation of the administration of justice would be adversely affected by the admission of this evidence. The public is entitled to assume, and in fact expect, that when they are arrested by the police, basic proper procedures will be followed before an interview is commenced. At the point of detention, the detainee has very little power over what information they receive and what happens to them next. Section 10(b) is a right that is meant to create some balance in a very unbalanced situation. Being able to choose one’s counsel is a critical feature in the public’s perception of the criminal justice system. If the police are permitted to, unnecessarily, weigh in on which counsel a detainee should choose, the public will quite rightly be left with the impression that the right to counsel is no right at all.

[56] This court is satisfied that admitting the police statement into evidence in this case would bring the administration of justice into disrepute. While the officers appeared to be courteous and respectful toward the Applicant, the Charter breach in this case represents conduct from which the court must disassociate itself. The reputation of the administration of justice is jeopardized where the court condones such police action. The evidence was directly linked to the conduct and exclusion is necessary in order to preserve the public confidence in and ensure state adherence to the rule of law.

CONCLUSION

[57] The Applicant has demonstrated on a balance of probabilities that a breach of his s. 10(b) Charter rights has occurred. Having considered the Grant factors, the Applicant’s statement to police will be excluded pursuant to s. 24(2).

CHRISTIE J.

Released: October 11, 2019