Court File and Parties

COURT FILE NO.: Crim (P) 1438/19 DATE: 2020 04 24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Respondent J. Kingdon for the Crown

• and -

AIKO HAMASAKI Applicant T. Inoue for the defendant

HEARD: February 3-5, 2020

SECTION 10(B) CHARTER RULING

D.E HARRIS J.

Introduction

[1] When she was arrested by the RCMP for criminal offences alleging the making of a false statement to obtain a Canadian passport, the applicant, Aiko Hamasaki, requested to speak to her immigration lawyer. A police officer told her that she may want to choose a lawyer “more versed in criminal law.” Ms. Hamasaki took his advice and spoke to duty counsel instead. She then gave the police a statement of almost one and a half hours duration.

[2] Was this a mere suggestion on the part of the police that Ms. Hamasaki was free to accept or reject or did it impermissibly interfere with her right to consult counsel of her own choosing? In my view, this kind of unsolicited and unnecessary intercession in the right to counsel is highly inadvisable and, in the circumstances of this case, violated Section 10(b) of the Charter of Rights and Freedoms. Consequently, Ms. Hamasaki’s statement must be excluded from her trial.

THE EVIDENCE

[3] The defence argued both a Section 10(a) and Section 10(b) breach. The facts are that on August 28, 2018, a number of police officers, at least four in all, gathered in the vicinity of Ms. Hamasaki’s apartment prior to her planned arrest and the execution of a search warrant upon her residence. They knocked on the door several times. The sound of a TV could be heard through the door. It was almost twenty minutes before the door was opened by Ms. Hamasaki. Some of the officers had gone to the superintendent to obtain access. When the door was opened, the officers came inside and arrested Ms. Hamasaki.

[4] Ms. Hamasaki was told of three offences for which she was being arrested. Officer Carmichael, reading from a script she had received from a more senior officer, told her that the arrest was for:

1. Misrepresentation under Section 29(2) of the Citizenship Act;
2. Uttering a forged passport under Section 57(2) of the Criminal Code; and
3. Fraudulent use of a certificate of citizenship under Section 58 of the Criminal Code.

[5] This was not altogether accurate. The actual charge with respect to #2, and the sole count on the indictment for this trial, was making a false statement in order to obtain a passport as the offence is defined by Section 57(2) of the Code. It seems what must have occurred is that the police mistakenly relied on the headings to the Section 57 offence in the Criminal Code. Although the section number was correct in the recitation to Ms. Hamasaki, the police erroneously described it to her as the uttering offence defined in ss. (1) instead of the false statement offence in ss. (2).

WAS THERE A SECTION 10(A) BREACH?

[6] As a result of this error and a general lack of detail, the defence argued that Ms. Hamasaki’s right to be informed of the reason for her arrest protected by Section 10(a) of the Charter of Rights and Freedoms had been violated. I do not see it that way. The law is well-established that the demands of Section 10(a) are minimal. They were met in this instance.

[7] All the arrestee must understand by reason of Section 10(a) of the Charter is a general sense of why they are being arrested and the extent of their jeopardy: R. v. Roberts, 2018 ONCA 411, [2018] O.J. No. 2279 at para. 76. Also see R. v. Evans, [1991] 1 S.C.R. 869 (S.C.C.), at pp. 886-88; R. v. Smith, [1991] 1 S.C.R. 714, 63 C.C.C. (3d) 313; R. v. Black, [1989] 2 S.C.R. 138, 1989 CarswellNS 389 at para. 30 (Carswell); R. v. Sawatsky (1997), 35 O.R. (3d) 767 (Ont. C.A.) at p. 776; R. v. Latimer, [1997] 1 S.C.R. 217, 112 C.C.C. (3d) 193 at para. 31; R. v. Wong, [1998] B.C.J. No. 858, 52 C.R.R. (2d) 89 at paras. 22-27; R. v. Ekman, 2003 BCCA 485, [2003] B.C.J. No. 2097 at paras. 81-92.

[8] Despite the less than accurate information, the general reason for the arrest was clear. It was for a criminal offence with respect to a passport and, in addition, offences with respect to citizenship and a citizenship certificate. The extent of the jeopardy which Ms. Hamasaki faced followed directly from the description of the offences.

[9] If anything, when regard is had to the available punishment, the uttering offence is more serious than the offence which the police were actually investigating, making a false statement to obtain a passport. Ms. Hamasaki knew enough to fairly decide whether to invoke and exercise her right to counsel. The rather forgiving requirements of Section 10(a) were satisfied.

[10] Counsel’s argument tended to suggest that the police have an obligation to be specific with an arrestee and convey something of the elements of the offence. The case law does not support this argument. In my view, based on what they told Ms. Hamasaki, although it ought to have been more accurate, the police complied with Section 10(a).

The Evidence with Respect to the Section 10(b) Breach

[11] After advising Ms. Hamasaki of the charges for which she was being arrested, Officer Carmichael at about 1:11 p.m. read her the rights to counsel and the primary and secondary cautions. As usual, the right to counsel recitation including the right to duty counsel and the toll-free number.

[12] In response to the right to counsel, Ms. Hamasaki said that she had an immigration lawyer and she wanted to contact him. But first, Ms. Hamasaki telephoned her boyfriend to summon him to the apartment to take care of her baby. He came quickly. The officers than took Ms. Hamasaki in handcuffs to the police cruiser.

[13] Officer Carmichael testified that when seating in the cruiser, Ms. Hamasaki told her that her lawyer was Matthew Wong, an immigration lawyer. Steps were taken by the officer to try to get Matthew Wong’s phone number. While this was happening, the officer-in-charge Cst. Bauer interjected. Cst. Bauer told Ms. Hamasaki that due to the nature of the charges, a lawyer “more versed in criminal law” than Matthew Wong may be more appropriate. If she contacted a Legal Aid duty counsel lawyer, a Japanese interpreter could be provided. Japanese is Ms. Hamasaki’s first language.

[14] Officer Bauer testified that he knew about Matthew Wong. That became apparent, in any case, in Cst. Bauer’s interview of Ms. Hamasaki which followed several hours later. In cross-examination, Officer Bauer testified that he knew that Matthew Wong was an immigration lawyer but did not know whether he was licenced to practice criminal law.

[15] Ms. Hamasaki then asked to contact the Legal Aid lawyer and never did contact Matthew Wong. Officer Bauer immediately attempted to call duty counsel from his cruiser at 1:30 p.m. but did not reach anyone. After arriving at the RCMP detachment in Milton, Officer Carmichael tried again to arrange duty counsel for Ms. Hamasaki. Eventually Ms. Hamasaki spoke to duty counsel from 3:51 p.m. to 4:10 p.m.

[16] An interview of Ms. Hamasaki by Cst. Bauer lasting about an hour and 20 minutes immediately followed the conversation with duty counsel. Ms. Hamasaki spoke freely about the allegations. There were one or two junctures during the interview when she said that she did not want to discuss a particular topic.

[17] The Crown seeks to have the interview with Officer Bauer admitted as part of its case against Ms. Hamasaki. The defence concedes voluntariness but argues that the police breached Section 10(b) of the Charter and that the interview should be excluded from evidence.

WAS THERE A SECTION 10(B) VIOLATION?

[18] Was the suggestion by Officer Bauer that Ms. Hamasaki ought to look for a lawyer besides Matthew Wong “more versed in criminal law” permissible or did it violate the right of Ms. Hamasaki to counsel of choice at the investigative stage of the criminal process?

[19] Counsel for the Crown argues that the correct legal rubric to apply is the disparagement of counsel case law (see e.g. R. v. Broyles, [1991] 3 S.C.R. 595 at para. 38; R. v. Burlingham, [1995] 2 S.C.R. 206). It is true that there was an element of disparagement in the suggestion that a lawyer more versed in criminal law would be a better choice than her immigration lawyer. But the disparagement cases are simply the most extreme example of interference with the right to counsel of choice. The concept of interference is broader and does not require a value judgment in the same way as does the issue of disparagement. Interference is a more appropriate standard to analyze the evidence.

[20] The right to counsel of choice is entitled to high deference under our law. In a decision considering the right to counsel of choice at trial, R. v. McCallen, [1999] O.J. No. 202, 116 O.A.C. 308, 131 C.C.C. (3d) 518, 22 C.R. (5th) 103, O’Connor J.A. (at he then was) dealt with a situation in which a trial judge had forced the accused to choose a different lawyer for his upcoming trial. Original counsel of choice was not available within the 90-day limit arbitrarily imposed by the judge.

[21] In finding reversible error, Justice O’Connor articulated the importance of counsel of choice and the need to protect the choice from state interference:

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. (Emphasis Added)

[22] When the state meddles in the choice of counsel, aside from the functional detriment to an accused, an appearance of unfairness may be produced. Justice O’Connor explained the perception of fairness promoted by Section 10(b):

37 … 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. … 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 …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.

[23] The perception of fairness is an important consideration when there is an allegation of the deprivation of the right of choice of counsel. Furthermore, upon arrest or detention, there is an additional aspect which was not considered by Justice O’Connor in McCallen as it only arises at the investigative stage of the criminal process, not at trial.

[24] When informing a detainee and helping implement the right to counsel, the police are in a potentially conflicted position. Of necessity, the police serve as the custodian of the right for the detainee, both the informational and implementational components. At the same time, they have obligations as criminal investigators. There is a latent disincentive to fully discharge their constitutional obligations to an accused which may on occasion come to the fore.

[25] Counsel, if reached, will likely advise the suspect not to talk to the police and to embrace their right to silence. Yet the police have a vested interest in the accused’s giving a statement. In this way, the right to counsel stands in direct opposition to the police interest in obtaining a statement from the detainee. As a result, at least in some circumstances, there is a risk that if the police are not sufficiently careful and scrupulous, an appearance may be left that their conduct had the purpose or effect of prejudicing the accused’s right to counsel.

[26] The right to counsel of choice protected as an element of Section 10(b) is peculiarly susceptible to this negative appearance. In the unusual circumstances demonstrated by the evidence tendered on this motion, as will be elaborated below, there may exist an appearance that the right to counsel was deliberately frustrated by the police.

[27] Moving to the evidence in this case, in analyzing the right to counsel of choice, the issue must first be properly framed. The situation must be distinguished from when a detainee has reached out to counsel and been unsuccessful in speaking to him or her and obtaining legal advice. That is a common enough scenario. The police are permitted and indeed encouraged to assist the arrestee in that circumstance. This is not interference, it is facilitation.

[28] In some circumstances, the line between the two is thin and makes it difficult to distinguish between them. On the evidence in this case, however, separating facilitation from interference is relatively easy.

[29] The leading facilitation vs. interference case is R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429. Mr. Willier, given the opportunity to consult counsel, had called a specific lawyer and left a voice mail message. The police, advising him that the office was closed for the weekend and the lawyer was unlikely to call back, asked if the accused wanted to contact another lawyer. After some persuasion, Willier called Legal Aid and had a brief conversation. At the outset of a police investigative interview with him a few minutes later, Willier was given another opportunity to contact counsel. He declined, saying that he was satisfied with the advice he had received.

[30] The Supreme Court found that there was no infringement of the right to counsel of choice. It was held at para. 43:

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.

[31] Most of the case law in this area scrutinizes the conduct of the police when the accused has unsuccessfully attempted to reach counsel and is contemplating next steps: see e.g. R. v. Wolbeck, 2010 ABCA 65, [2010] A.W.L.D. 2212; R. v. Dumontier, 2008 ABQB 360, [2008] A.J. No. 648; and R v. Lee, 2019 ABQB 354, [2019] A.W.L.D. 2686. In these cases, the police intervene with the accused but are generally assisting, not interfering, with the right to counsel.

[32] There is a stark constitutional divide between cases like Willier and the case here. In Ms. Hamasaki’s situation, she had invoked her right to contact a particular lawyer of her choice and had not yet had the opportunity to make any steps towards that end. The police, having complied with their informational task, were now obligated to live up to their implementational duties.

[33] In contrast, Willier had reached out to a lawyer by phone and had been unsuccessful in reaching him. The prospect he would hear back from counsel was remote. Willier seemed to be at a dead end in his efforts to speak to counsel and needed assistance in obtaining legal advice; Ms. Hamasaki had not even attempted to contact counsel and needed only police assistance in accessing a telephone for that purpose.

[34] The fact situation in Willier offers little guidance with respect to the scenario in this case. In the final analysis, the critical task in gauging the effect of the police officer’s comment here is to assess the dynamic between the officer and Ms. Hamasaki. What would have been the effect of the police suggestion on her or on a reasonable person in the full context of the situation?

[35] Looking at it from her point of view, it is important to recognize that Ms. Hamasaki was under the almost total physical control and domination of the police. She was at their mercy: R. v. Nguyen, 2008 ONCA 49, [2008] O.J. No. 219 at para. 21.

[36] The right to counsel is an essential gateway to the right to silence and, principally for this reason, is the most fundamental right of the accused upon detention. It is the only counterweight to the powers of the police. One of the leading statements is from Justice McLachlin (as she then was) in R. v. Hebert, [1990] 2 S.C.R. 151, at para. 109:

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. The detained suspect, potentially at a disadvantage in relation to the informed and sophisticated powers at the disposal of the state, is entitled to rectify the disadvantage by speaking to legal counsel at the outset, so that he is aware of his right not to speak to the police and obtains appropriate advice with respect to the choice he faces. Read together, ss. 7 and 10(b) confirm the right to silence in s. 7 and shed light on its nature.

[37] Also see Lamer C.J. in R. v. Bartle, [1994] 3 S.C.R. 173 (S.C.C.), at p. 191; R. v. Jones, [1994] 2 S.C.R. 229 at paras. 28-33; R. v. Sinclair, 2010 SCC 35 (S.C.C.), at paras. 24-29.

[38] More recently, the vulnerability of an accused under police detention was emphasized in Willier at para. 21:

… s. 10(b) provides detainees with an opportunity to contact counsel in circumstances where they are deprived of liberty and in the control of the state, and thus vulnerable to the exercise of its power and in a position of legal jeopardy. The purpose of s. 10(b) is to provide detainees an opportunity to mitigate this legal disadvantage.

[39] Obtaining a statement from the accused upon arrest is a key objective of law enforcement. A statement will result in a much greater probability of the accused being found guilty. It can make up for any evidentiary deficiencies in the Crown’s case.

[40] Upon arrest, the “coercive power of the state [was] brought to bear against” Ms. Hamasaki: Hebert at para. 28. Ms. Hamasaki was exceedingly vulnerable to the influence of the police and to stratagems to get her talking about the allegations. She was at a crossroads. Counsel provides a comfort to an accused as their only adviser and friend within the daunting environment of an active police investigation.

[41] As Justice Doherty said R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, 366 C.C.C. (3d) 103, at para. 45:

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.

[42] Most individuals under arrest are shell-shocked. Ms. Hamasaki certainly was. She could not possibly have been expecting the police. The offences upon which she was arrested dated from four years before.

[43] A phalanx of police officers abruptly intruded into her domestic bliss. When she opened the door, she was feeding her baby. The police arrested her and began preparations to execute a search warrant on her apartment. She had to get dressed and change the baby. Ms. Hamasaki summoned her boyfriend by telephone to care for the baby. She was told of the charges against her but did not initially understand. English is her second language.

[44] Ms. Hamasaki was taken in handcuffs to a police cruiser waiting outside her residence. There were several police cruisers present. She was told by the officer-in-charge that it might be better if she did not consult her lawyer because he was an immigration lawyer. It was preferable to have one more familiar with criminal law.

[45] Ms. Hamasaki or anyone in her circumstances would have felt intimidated by virtue of the heavy police presence, the arrest in her home—the apex of the right to privacy--the police occupation and intention to search the home, and being handcuffed and placed into the police car in preparation for being transported to the police detachment.

[46] In R. v. Therens, [1985] 1 S.C.R. 613, [1985] S.C.J. No. 30 at para. 53, the court accepted that when a police officer makes a demand or a direction, it is not realistic to expect that an individual believes there is a choice whether to comply. The court coined the phrase, “psychological compulsion” to describe this effect. Psychological compulsion is analyzed on an objective standard: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at paras. 30-32; R. v. Le, 2019 SCC 34 at paras. 113-117.

[47] Cst. Bauer’s suggestion or comment was not a direction or demand. However, the suggestion in context carried with it a milder form of compulsion, but a significant degree of compulsion nonetheless.

[48] Besides having her liberty suddenly taken from her with no forewarning and being subjected to the coercive power of the police, there was another aspect likely to have impact on Ms. Hamasaki’s right to counsel of choice to assist in her predicament. The police would have engendered trust in any reasonable arrestee. Most people trust and respect the police. Most would also view the police as having control not only over the investigation but the charges and the machinery of the prosecution as well.

[49] The situation Ms. Hamasaki found herself in was unprecedented in her experience. There is no suggestion that Ms. Hamasaki has any criminal past or that she is familiar with police procedures.

[50] In light of the trust and control and her comparative naivete, Ms. Hamasaki was in a position of substantial dependence on the police. She was bound to look to the police to lead her through the forbidding process of detention for a criminal offence.

[51] This state of dependence was interwoven with the elements of coercion. Together, they constituted a powerful mixture. Constitutionally speaking, it was a delicate time for the right to counsel. What could have been a well-intentioned suggestion, in light of the forces upon Ms. Hamasaki’s or any reasonable arrestee in the circumstances, had the real potential to thwart her choice of counsel.

[52] To further illustrate the dynamic between the Cst. Bauer and Ms. Hamasaki at the time the suggestion was made, reference should be made to Cst. Bauer’s video interview of Ms. Hamasaki a few hours after the arrest. The interview commenced at 4:20 p.m. Although the interview was a much more involved interaction than the brief conversation in the police cruiser and was after-the-fact, some of the same elements were present.

[53] In the interview, Cst. Bauer assumed a friendly, helpful almost milk toast persona. There was never even a hint of anger or aggression. Ms. Hamasaki was smiling and laughing quite often in the interview. The officer joined in the mirth and appeared to be a beneficent presence. But Ms. Hamasaki’s laughter was nervous and anxious. She was not enjoying herself. And Cst. Bauer was not a true friend to Ms. Hamasaki. His goal was to obtain a statement to aid in her prosecution.

[54] Ms. Hamasaki repeated several times during the interview that she wanted to co-operate as much as she could. This was genuine and her co-operation was apparent throughout the interview.

[55] Ms. Hamasaki said that she was overwhelmed several times. She agreed with her interrogator that it was “a lot…all at once.” Several times she became tearful and flustered.

[56] She explained that she did not always understand English that well. This came up several times in the interview. When she was shown a passport picture and the officer asked her if it was her signature on the back, she was surprised and her voice went into high alarm. She said that she must be in shock and repeated this again further on in the interview.

[57] When the officer left the room for a few minutes, Ms. Hamasaki leaned her head against the wall. She was clearly distraught.

[58] The interview shows Ms. Hamasaki on the defensive and doing her utmost to please the police officer. The officer, mild to a fault, talked slowly and was stubbornly non-threating. He was in quiet, calm control of the situation.

[59] In short, during the interview, Ms. Hamasaki was like putty in Cst. Bauer’s hands. She was compliant. The elements of intimidation and dependence were evident. Although the statement was clearly voluntary in law, Ms. Hamasaki was reacting to a pressurized, emotionally charged situation.

[60] There was a similar dynamic at work in the interaction in the police cruiser. Cst. Bauer’s suggestion of a different lawyer was made in circumstances, like the interview, in which there was a gross imbalance of power. There were the same language issues, vulnerability to police influence and obeisance to authority.

[61] Lastly, the force and impact of the suggestion made by Cst. Bauer that she might be better off with a lawyer with expertise in criminal law was bolstered by its superficial appeal. Ms. Hamasaki was the subject of criminal investigation and prosecution; a criminal lawyer to help her would seem logical and reasonable. However, there was another vital element that Cst. Bauer’s advice ignored. There was a long-time, valued relationship of trust between Ms. Hamasaki and Mr. Wong. This relationship may well have been more important than was criminal expertise: see McCallen quoted above at para. 21.

[62] The main advice to be given to a detainee is, on its face, quite simple: do not talk to the police. The more challenging task is to diminish the pressures on an accused to unburden themselves to the police. Many accused agree to speak about the allegations under the beguiling but misconceived hope of winning over or diverting the police. A lawyer in whom trust has long been reposed may well be more able than a lawyer contacted for the first time to effectively get across the importance of silence and have the arrestee adhere to this advice.

[63] In conclusion, the suggestion to Ms. Hamasaki to consult a different lawyer, one with criminal law expertise, assumed much more force than would a suggestion made in a neutral context. The reflection that some accused would have persevered and demanded their own lawyer is of little importance. The fact remains that Ms. Hamasaki’s choice of counsel was compromised by the police suggestion.

[64] No proof of prejudice need be shown for there to be a violation of the right to counsel of choice. It is inherent. Furthermore, it is important to remember the words of Justice McLachlin in Hebert with respect to the correct approach to the issue:

126 The right to choose whether or not to speak to the authorities is defined objectively rather than subjectively. The basic requirement that the suspect possess an operating mind has a subjective element. But, this established, the focus under the Charter shifts to the conduct of the authorities vis-à-vis the suspect. Was the suspect accorded the right to consult counsel? Was there other police conduct which effectively and unfairly deprived the suspect of the right to choose whether to speak to the authorities or not? (Emphasis Added)

[65] The police suggestion was highly improper and its effect on a reasonable detainee, and even more so in light of Ms. Hamasaki’s vulnerabilities, constituted a violation of Section 10(b) of the Charter.

[66] An appearance of unfairness resulting from police conduct-- stressed by Justice O’Connor in McCallen—was created. But, in any case, there was obvious prejudice here. If Cst. Bauer had not pushed Ms. Hamasaki towards duty counsel and had stayed out of the decision as he should have, she would have attempted to contact Mr. Wong. The suggestion put to her not only infringed her right to make an unfettered choice free from improper influence, it led to a different choice in fact.

[67] There is one further area that requires comment. As mentioned above, the police interference with the right to counsel of choice may on occasion leave an appearance of deliberate frustration of the right to counsel. That occurred here. There was a troubling appearance left by the suggestion of a different lawyer in light of the evidence adduced on this motion.

[68] This is the reason for that conclusion. Early in Cst. Bauer’s interview, Ms. Hamasaki alluded to the lawyer she had mentioned when he gave her the right to counsel but without naming him. Cst. Bauer pursued this and, after confirming it was the immigration lawyer Matthew Wong, embarked on a series of questions about Mr. Wong. In the end, Mr. Wong was a major, if not the major, topic of discussion during the interview. It was elicited that Mr. Wong helped Ms. Hamasaki with various aspects of her immigration status including acquiring her citizenship and her passport.

[69] Clearly, the officer was well-familiar with Mr. Wong’s involvement and was interested in more information about him from Ms. Hamasaki. It is difficult to say for certain whether the officer saw Mr. Wong as implicated in Ms. Hamasaki’s alleged wrongdoing or whether he was seen as an innocent agent or dupe. Whatever the case, the subject of Mr. Wong was brought up over and over again by the officer. At one point, Cst. Bauer even asked Ms. Hamasaki whether the two had been romantically involved.

[70] It was never put to Cst. Bauer by either counsel that he suggested a lawyer other than Mr. Wong because he was concerned Mr. Wong was himself involved in the allegations of wrongdoing, either innocently or not. Nor was it suggested that because Mr. Wong was fully aware of the background facts, Cst. Bauer was concerned that he might be better able to persuade Ms. Hamasaki not to talk to the police. In fairness to Mr. Wong, I should add here that there was no basis in the evidence adduced in this prosecution to support any allegations of impropriety against him.

[71] The evidence of Mr. Wong’s involvement and Cst. Bauer’s previous knowledge of him is worrisome. It only adds to this concern that Cst. Bauer testified that he did not know whether Mr. Wong was licenced to practise criminal law. This cast doubt on whether the officer was genuine when he said that a lawyer more versed in criminal law might be preferable or whether it was simply a pretext to steer Ms. Hamasaki away from Mr. Wong.

[72] While the truth of what was in Cst. Bauer’s mind is impossible to know with certainty, what remains on the evidence is an apprehension of an ulterior motive for deterring Ms. Hamasaki from consulting Mr. Wong. It is unnecessary to delve into whether such an apprehension should be drawn and whether it would be reasonable on the evidence. It does, however, demonstrate one of the many dangers of improvident interference in the right to counsel of choice.

SECTION 24(2)

[73] Mr. Kingdon for the Crown fairly and appropriately conceded that if a breach of Section 10(b) was found, Ms. Hamasaki’s interview with Constable Bauer should be excluded from evidence under Section 24(2) of the Charter. I agree.

[74] For this reason, only a few comments with respect to Section 24(2) are necessary.

[75] The police conduct here was indisputably not in good faith as that phrase is used in the jurisprudence: R. v. Le, 2019 SCC 34, [2019] S.C.J. No. 34, paras. 143-148; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at paras. 43-44. There was no judicial or other precedent for making the suggestion of a different lawyer. While a firm conclusion of bad faith is not possible given the state of the record with respect to what was in Cst. Bauer’s mind, I have concerns in this regard as referred to above.

[76] The importance of the right to counsel upon detention is difficult to overstate. It protects the right to silence, a right of fundamental significance in our constitutional democracy. The right to silence was violated when Ms. Hamasaki’s right to counsel of choice was compromised.

[77] In R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 80, Justice Doherty said at para. 80:

Access to legal advice while detained is fundamental to individual liberty and personal autonomy in a society governed under the rule of law.

[78] In conclusion, this was a very serious Charter violation, whether deliberate or not.

[79] Ultimately, there was a tangible detriment to Ms. Hamasaki. She gave up her silence and made a lengthy statement to the police. In Broyles at para. 38, Justice Iacobucci wrote with respect to a jail house conversation in which the accused’s lawyer was disparaged:

The right to counsel would indeed be meaningless if the authorities were entitled to undermine the confidence of the accused in his counsel in order to extract a confession.

[80] This comment is helpful in gaining perspective on what happened in this case. This was not merely undermining confidence in counsel; it was tantamount, in light of Ms. Hamasaki taking the officer’s suggestion, to an outright subversion of the right to counsel.

[81] The impact on Ms. Hamasaki was enormous. Her own lawyer may have been successful in impressing upon her the crucial importance of her right to silence. If this had been the case, the statement would never have come into being. She lost the opportunity of getting the legal advice she was seeking and of which she was legally entitled.

[82] Lastly, under the Grant framework, the treatment of statements—because of their self-incriminating nature--has not changed much from the near automatic exclusion in R. v. Collins, [1987] 1 S.C.R. 265. They “tend to be excluded”: R. v. Grant at paras. 89-98.

[83] For these reasons, the motion is granted. The evidence of Ms. Hamasaki’s statement to the police is excluded.

D.E HARRIS J. Released: April 24, 2020