COURT FILE NO.: CR-17-10000820-0000
DATE: 20200911
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ANDRE AZONWANNA
Ms. B. McCallum, for the Crown
Mr. A. Marchetti, for Mr. Azonwanna
HEARD: Dec 2-6, 9 and 10, 2019, January 17, and February 10, 2020
Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way, pursuant to s. 486.4(1) of the Criminal Code of Canada.
Justice J. Copeland
REASONS FOR DECISION ON VOLUNTARINESS AND CHARTER VOIR DIRE
Introduction
[1] Andre Azonwanna was charged with one count of sexual assault, and one count of making child pornography. Ultimately, I acquitted Mr. Azonwanna of both counts in a judgment rendered April 15, 2020. The background to the charges is set out in my judgment on the trial proper, and my ruling on a directed verdict motion, reported at 2020 ONSC 1513, and 2020 ONSC 1658, respectively.
[2] The Crown sought to prove that the statement given by Mr. Azonwanna to police in a videotaped interview following his arrest was voluntary. Although the statement was for the most-part exculpatory, the Crown sought to prove voluntariness in order to use the statement in cross-examination, and also in order to rely on physical evidence seized from Mr. Azonwanna’s cell phone, which the police were only able to obtain because during the statement Mr. Azonwanna provided the police with the password to his cell phone. In particular, the Crown wished to tender evidence of a short video seized from Mr. Azonwanna’s cell phone of the complainant performing fellatio on him. The allegation of the making of this video was the basis for the charge of making child pornography. I note that ultimately, when Mr. Azonwanna testified at trial, he admitted making a video on his phone when the complainant performed fellatio on him.
[3] Mr. Azonwanna argued that the statement was not voluntary, and also brought an application under the Charter alleging that the statement was obtained in a manner that infringed his rights under ss. 7, 8 and 10(b) of the Charter, and seeking exclusion of the statement, and evidence obtained as a result of the statement, pursuant to s. 24(2) of the Charter.
[4] The voluntariness and Charter issues were heard together, blended with a portion of the trial evidence. I ruled on the admissibility of the statement and evidence obtained from the search of the phone resulting from the statement on December 5, 2019, mid-way through the Crown’s case, prior to the testimony of the complainant. At that time, I gave brief oral reasons finding that the Crown had failed to prove beyond a reasonable doubt that the statement was voluntary. I also found that the statement was obtained in breach of Mr. Azonwanna’s ss. 7 and 10(b) Charter rights. I found that it was not necessary to rule on the alleged s. 8 breach. Because the statement was not proven voluntary, it was not admissible in evidence. I also would have excluded it under s. 24(2). In addition, to the statement itself, I also excluded the physical evidence obtained by the police as a result of the statement, in particular, the contents of Mr. Azonwanna’s cell phone.
[5] At the time I gave the ruling, I indicated that I would provide more detailed reasons at a later date. These are those reasons.
Findings of Fact
[6] I begin by outlining my findings of fact in relation to the events preceding and during the taking of the statement that are relevant to voluntariness and the Charter issues.
[7] Mr. Azonwanna was arrested at the Pearson Airport on December 15, 2016, at approximately 3:24 p.m. He was interviewed by Detective Robert Thomas of the Toronto Police Service between 7:09 and 11:07 p.m., on December 15, 2016, at 51 Division. The facts relevant to the admissibility of the statement come from the evidence of Detective Shona Patterson, Detective Raj Patel, Detective Adrian Chin, Detective Krishnamoorthy Vadivelu, PC Jeff Gillan, Detective Robert Thomas, Mr. Azonwanna (by affidavit and viva voce), the video recording of the interview of Mr. Azonwanna by Detective Thomas, and some files extracted from Mr. Azonwanna’s phone.
[8] I note that apart from some details about whether Mr. Azonwanna was talking or texting on his phone at the time it was seized, and whether the phone was seized immediately before or after the words of arrest was spoken, there is little factual dispute about the events surrounding the arrest, transportation of Mr. Azonwanna, or the taking of the statement. As I outline further below, I have some concerns about the credibility of the evidence of Detective Thomas about his subjective motivations for various actions during the taking of the statement. But these are legally mostly beside the point, because the statement is video recorded, providing an objective record of what happened during the taking of the statement, and the issues I need to consider, particularly with respect to the voluntariness, turn on and objective assessment of the effect of the totality of the circumstances.
(i) Police planning for the arrest, seizure of the phone, and taking of the statement
[9] The arrest of Mr. Azonwanna and taking of the statement in this case were carefully planned by the police for some days in advance of the arrest date. The alleged offence date was the night of November 26/27, 2016. Because the complainant knew Mr. Azonwanna, the police identified him as the suspect as soon as they took a statement from the complainant in the early morning hours of November 27, 2016. The police had information from the investigation that Mr. Azonwanna had left for a track and field training camp in Florida with Canada’s National Team on November 27, 2016, and was scheduled to return to Canada on December 15, 2016. The police planned to arrest Mr. Azonwanna at Pearson Airport when his return flight landed on December 15.
[10] The investigating officers, in particular Detective Patterson, Detective Patel, and Detective Chin coordinated the planning of the arrest and taking of the statement with Detective Thomas (who is specially trained in taking statements), as well as with officers with speciality training in information technology (in particular, Detective Vadivelu of the tech crimes unit). I will not summarize all of the planning, but there were two central objectives.
[11] The first objective of the plan was to try and seize Mr. Azonwanna’s cell phone unlocked. As I have noted above, the complainant had told the police that Mr. Azonwanna made a video on his phone of her performing fellatio on him. Because she was 17 years old, the police were investigating this as making child pornography. They wanted to seize the phone unlocked so that they could access the contents of the phone to seize the video if it existed. As I outline in more detail below, the evidence of the officers was clear that, as a practical matter, if the phone was seized locked, they would not be able to access its contents unless Mr. Azonwanna gave them the password. As Detective Patterson testified, the officers reasoned that most people carry their cell phones with them 24/7, so if they effected the arrest at the airport, Mr. Azonwanna would likely have his phone with him. The officers planned to try and effect the arrest at a time when Mr. Azonwanna had his phone out and, they hoped, unlocked. The investigating officers arranged for two tech crime unit officers to attend with them for the arrest, so that if they succeeded in seizing the phone unlocked, the tech crime unit officers could extract the data from the phone immediately to preserve it, and then the other officers could apply for a search warrant to review the data.
[12] The second objective of the plan was to bring Mr. Azonwanna to be interviewed by Detective Robert Thomas immediately after his arrest. Detective Thomas is a member of the polygraph unit of the Toronto Police Service, and has specialized training in conducting custodial interviews. As part of the planning for this, Detective Thomas directed the investigating officers to give Mr. Azonwanna as little information about the allegations as possible prior to the interview. Detective Thomas advised that the arresting officers should ensure that Mr. Azonwanna was aware if his full jeopardy (i.e., told the charges under investigation), and was given his full right to counsel, and that no attempt be made to get a statement from Mr. Azonwanna until after he had spoken to counsel. However, he advised them not to disclose details of the allegations to Mr. Azonwanna.
[13] At the time the arrest was being effected at the airport, Detective Thomas was waiting to attend to do the interview. Once he was advised that the arrest had been effected, he attended at 51 Division to await Mr. Azonwanna’s arrival.
(ii) Mr. Azonwanna’s evidence about events prior to his interaction with the police at the airport
[14] Mr. Azonwanna had just turned 21 at the date of the arrest. On November 27, 2016, he left Canada with his teammates on the Athletics Canada track and field team, and his coaches, for a training camp in Florida. They flew back to Canada on December 15, 2016, landing at Pearson Airport in Toronto.
[15] I note that Mr. Azonwanna testified that he has a learning disability. However, no detail was provided to the court about the nature of the learning disability, or its effects. As a result, it is not a factor I rely on in my assessment of voluntariness or the Charter issues.
[16] At the time of the interview, Mr. Azonwanna had a high school education. He had done part of a semester at college, but had dropped out because he could not handle the work. He had never been arrested before.
[17] The night before he flew back to Toronto, Mr. Azonwanna was “partying” with his teammates to celebrate his birthday. Mr. Azonwanna’s birthday is November 29, but they had not celebrated until the last night of their training camp because during the training camp they had to start training very early each day. Because he had been out with his friends, Mr. Azonwanna had one to two hours sleep the night previous to his arrival in Toronto. He testified that he was tired when he arrived, but he expected to be able to go home and rest. I note that in the videotaped statement to police on the date of his arrest, Mr. Azonwanna gave a similar account, and said he went to bed at around 6:00 a.m., and got up at 7:00 or 8:00 a.m. that morning (transcript of videotaped interview, pp. 104-106).
[18] I accept Mr. Azonwanna’s evidence about the events prior to his arrival at Pearson Airport.
(iii) Events at the airport
[19] Detectives Patterson, Patel, and Chin arrived at Pearson Airport approximately one hour prior to the arrival of Mr. Azonwanna’s flight. They met with an officer of Canada Boarder Services Agency, and a Toronto Police Service officer stationed at the airport. They received input on the best location within the airport to effect the arrest. It was decided to effect the arrest in the baggage claim area. The tech crimes officers Detective Vadivelu and Detective Flores also attended at the airport.
[20] Mr. Azonwanna’s flight was scheduled to arrive at 2:39 p.m.
[21] At 2:30 p.m., Detectives Patterson and Patel were waiting in the baggage claim area. Both were dressed in plain clothes. The officers had their use of force options with them, but apart from the handcuffs after the arrest was effected, no use of force options were made visible or used at any point.
[22] As noted above, the intention of the officers was to try and effect the arrest when Mr. Azonwanna was using his cell phone, in hopes they could seize it unlocked.
[23] Detectives Patterson and Patel approached Mr. Azonwanna to effect the arrest and seize the phone. The tech crimes unit officers Detectives Vadivelu and Flores were nearby, but behind Detectives Patterson and Patel.
[24] There was some divergence in the evidence both between the various officers, and between the evidence of Mr. Azonwanna, about whether Mr. Azonwanna was speaking on his cell phone, or doing something on it with his hands such as texting or scrolling through something, immediately prior to the arrest. I do not find it necessary to resolve this particular factual dispute. I find that the differences between the various witnesses are as a result of the fallibility of memory, and that the particular events happened very quickly. Whether Mr. Azonwanna was talking or texting on his phone immediately prior to the arrest is not relevant to the voluntariness or Charter issues.
[25] However, I do make a finding in relation to when and the manner in which Mr. Azonwanna’s cell phone was seized. Detectives Patel and Patterson testified that just prior to the arrest, Mr. Azonwanna was making a phone call on his cell phone. They approached him and identified themselves as police officers. Mr. Azonwanna then finished his phone call, and slipped his phone into his pants pocket. The arrest was then effected, including the officers identifying themselves as police officers, and advising Mr. Azonwanna of the charges. Detectives Patterson and Patel testified that Detective Patterson then took the phone from Mr. Azonwanna’s pocket. They both denied in cross-examination that Detective Patel reached and took Mr. Azonwanna’s phone from his hand immediately when they approached him (i.e., before identifying themselves as police officers and effecting the arrest).
[26] By contrast, Mr. Azonwanna (in his affidavit filed on the application, and in cross-examination) testified that while he was waiting for his baggage, and Asian Indian man (Detective Patel) approached and asked if he could speak to him. The man was looking at his phone, and asked to see it. Mr. Azonwanna said he was hesitant because he did not know who the man was. He felt defensive because the man was so focused on his phone. The man took Mr. Azonwanna’s phone out of his hand, and then flashed a badge. At that point Mr. Azonwanna thought he might be security. Then the officers identified themselves as police and effected the arrest. I note that Mr. Azonwanna gave a similar account to Detective Thomas on the same evening as the arrest (interview transcript, pp. 41-47).
[27] I accept Mr. Azonwanna’s evidence that Detective Patel grabbed the phone out of his hand, and did so before the officers identified themselves as police officers, and before the words of arrest were spoken. In my view, given the central focus of the police plan for that day on seizing the cell phone unlocked, it is inconceivable to me that Detectives Patterson and Patel would have let Mr. Azonwanna end whatever activity he was doing on the cell phone, and put it his pocket, which in the normal course would involve it being locked again. Rather, I find that Detective Patel grabbed the phone out of Mr. Azonwanna’s hand immediately prior to identifying himself and Detective Patterson as police officers, and immediately prior to effecting the arrest.
[28] I also find support for this conclusion in the evidence of Detective Thomas. Detective Thomas agreed in cross-examination that prior to the arrest, he was involved in discussions with the investigating officers about the plan for the arrest. He agreed (as did the other officers) that part of the arrest plan was to seize Mr. Azonwanna’s phone unlocked. He also agreed that the investigating officers decided as part of the plan to take the phone right out of Mr. Azonwanna’s hand so he could not lock it. In my view, this evidence of the intention of how the officers planned to seize the phone also supports that they grabbed the phone from Mr. Azonwanna’s hand. That they had a plan to seize the phone right out of Mr. Azonwanna’s hand supports that they acted in accordance with that plan.
[29] This finding does not affect the legality of the seizure of the phone as a search/seizure incident to arrest. A search will be lawful incident to arrest, even if it precedes the effecting of the arrest, so long as there are reasonable and probable grounds for arrest, and the arrest quickly follows the search: R. v. Debot (1986), 30 C.C.C. (3d) 207, 1986 CanLII 113 (ONCA), at p. 233 (affirmed on other grounds); R. v. Richards, 2015 ONCA 348 at par. 41. I am satisfied that both of those criteria are met in this case.
[30] For this reason, the relevance of the order of events of the seizure of the phone and the arrest is only a contextual one. Given my finding that the officers grabbed the cell phone from Mr. Azonwanna’s hand before either identifying themselves as police, or explaining that they were arresting him, I accept Mr. Azonwanna’s evidence that initially, when the officers took his phone, he was scared and felt defensive. To him it would have seemed like a stranger just grabbed his phone (recall that the officers were in plain clothes). But I do not want to overstate this point. I accept that the officers quickly identified themselves as police, and told Mr. Azonwanna that he was being arrested (and the three charges). At that point, Mr. Azonwanna was no longer under the misapprehension that a stranger had taken his phone.
[31] I should make clear that although I accept the evidence of Mr. Azonwanna over that of Detectives Patel and Patterson on the issue of whether the phone was taken from Mr. Azonwanna’s hand prior to the arrest, I do not find that either Detective Patel or Detective Patterson intentionally misled the court on this issue. As I have noted, I find that the events of the seizure of the phone and the arrest happened quickly. At they time the officers testified, it was over two years after the events. I find that this is an issue of memory, not dishonesty.
[32] The arrest was effected at 3:24 p.m. There is no dispute that at the time of the arrest, Detective Patel advised Mr. Azonwanna that he was under arrest for sexual assault, forcible confinement, and making child pornography. The cell phone was given to Detective Vadivelu after it was taken from Mr. Azonwanna.
[33] Detective Patel testified that he advised Mr. Azonwanna of his right to counsel and gave a caution right after he told him the reasons for the arrest. Detective Patel testified that he did not have his memo book with him with the right to counsel written out. For this reason, he testified that he set it out “in simple terms”. He testified in examination in chief that he said, you have a right to speak to a lawyer; I can make arrangements for it back at the station; if you don’t have a lawyer, I can arrange legal aid duty counsel for free advice from a legal aid lawyer. Detective Patel testified that Mr. Azonwanna said he did not have a lawyer. Detective Patel told him he would make arrangements at the station for legal aid duty counsel. Detective Patel then said to Mr. Azonwanna, you realize that anything you say can be used against you in court, so you don’t have to say anything. Detective Patel asked Mr. Azonwanna if he understood this, and Mr. Azonwanna said yes. He asked Mr. Azonwanna if he wanted to say anything, and Mr. Azonwanna said, no.
[34] Mr. Azonwanna testified that after the officers took him to the side, they told him he was being charged with sexual assault, child pornography, and forcible confinement, but did not give him any details. They said he would be told the details at the station. He asked what that meant. The officers told him it would be explained when he was at the station. Mr. Azonwanna testified that he was not advised of his right to counsel either at the airport, or while being transported to the police station; however, in cross-examination he agreed that he remembered being told something about a 1-800 number at the airport (I note that it is not in dispute that he was not given his right to counsel during the transport to the police station). Mr. Azonwanna testified that the police seemed like they were in a rush to get him out of the airport, and then they turned him over to policemen in uniform. Mr. Azonwanna testified that at the police station he was “made to speak to duty counsel” (affidavit, paras. 11, 12, and cross-examination). I note that in the videotaped interview with Detective Thomas later that evening, when Detective Thomas read Mr. Azonwanna the right to counsel from a standard pre-printed card, Mr. Azonwanna told him that this had not been read to him at the airport, but did agree that the officers at the airport had read him a caution (transcript of videotaped interview, pp. 31-37).
[35] Although I do not accept Mr. Azonwanna’s evidence that he as not advised of his right to counsel at all at the airport, I find that he was not fully advised of the informational component. I also find that whatever he was told by Detective Patel about the right to counsel at the airport, he did not understand. In making the finding that I do not accept Mr. Azonwanna’s evidence that he was told nothing about right to counsel at the airport, I do not find that he lied or intended to mislead the court about this issue. Rather, I find that he does not remember being told anything about right to counsel. I find that his lack of memory supports that he did not understand whatever he was told by Detective Patel about right to counsel.
[36] I do not accept that Detective Patel gave the level of detail he claims regarding the right to counsel to Mr. Azonwanna at the airport. I find that Detective Patel did not, at the time he testified, in fact remember the details of what he said in terms of right to counsel. He testified in cross-examination that the only notations he made in his notes regarding the right to counsel and the caution were “RTC” and asking, “do you understand”, and that Mr. Azonwanna said he did not have a lawyer, and Detective Patel said he would arrange for duty counsel at the station. Detective Patel’s only notes regarding the caution were the word “caution”, asking Mr. Azonwanna if he understood, and Mr. Azonwanna saying yes; and Detective Patel then asking if he wanted to say anything, and Mr. Azonwanna saying, no. Detective Patel agreed that he was just going on memory, and could not at the time he testified recall the exact words he said. Detective Patel testified more than two years after the date of the arrest. Detective Patel agreed in cross-examination that he knew prior to attending at the airport that his purpose in attending was to effect an arrest, but he did not bring the written version of the right to counsel (i.e., in a police memo book).
[37] Detective Patterson waited with Mr. Azonwanna while Detective Patel collected his baggage. They then walked through the airport with Mr. Azonwanna and met two officers from 51 Division, PC Jeff Gillan and Sgt. Robin Day, who took custody of Mr. Azonwanna to transport him to 51 Division. Mr. Azonwanna was turned over to the 51 Division officers at approximately 3:50 p.m. Detective Patel told the transporting officers that he had already told Mr. Azonwanna about his right to counsel, and given him the (primary) caution.
[38] Detective Patterson testified that Mr. Azonwanna appeared surprised by the arrest. He appeared to tear up while they were waiting for the luggage. She testified that he did not appear to her to be fatigued or under the influence of alcohol. Similarly, Detective Patel testified that at the time of the arrest, Mr. Azonwanna appeared surprised, emotionally deflated, and like he was going to cry. Detective Patel testified that Mr. Azonwanna appeared confused and emotional, but that he appeared to understand when he advised him of the right to counsel, appeared to be listening, and answered his questions. Detective Patel also testified that he did not observe anything about Mr. Azonwanna that led him to have concerns about intoxication or fatigue. Detective Patel testified that he told Mr. Azonwanna that everything would be explained to him when they got back to the station.
[39] Just after custody of Mr. Azonwanna was given to the transport officers, Detective Vadivelu gave Mr. Azonwanna’s cell phone back to Detective Patterson, which she kept until she could submit it into property at 51 Division. She did not do any searches of the phone at that time.[^1]
[40] Mr. Azonwanna was not immediately handcuffed at the time of arrest, but was handcuffed when he was turned over for transportation at 3:50 p.m. He remained handcuffed for almost two hours, until the handcuffs were removed during the booking at 5:38 p.m.
[41] I accept that Mr. Azonwanna was cooperative throughout the arrest. I also find that Detectives Patterson and Patel were direct in their manner with Mr. Azonwanna, but were not aggressive or threatening in any way. Detective Chin witnessed the arrest from a short distance away, but did not have any direct contact with Mr. Azonwanna (nor did the tech crimes unit officers).
[42] Detectives Patterson and Patel had no further contact with Mr. Azonwanna after they turned him over to the 51 Division officers for transport.
(iv) Exiting the airport, travel to 51 Division, events prior to entry into 51 Division, and booking
[43] Mr. Azonwanna was transported from the airport to 51 Division by PC Jeff Gillan and Sgt. Robin Day. Both officers were in uniform and in a marked police car.
[44] PC Gillan and Sgt. Day arrived at the airport prior to the arrest, at 1:30 p.m. Detective Patel advised them that the male to be arrested was to arrive at 2:39 p.m., and to wait until called.
[45] PC Gillan and Sgt. Day took custody of Mr. Azonwanna at approximately 3:50 p.m. Detective Patel advised them that Mr. Azonwanna was under arrest for sexual assault, child pornography, and forcible confinement, and that he had already given Mr. Azonwanna right to counsel. PC Gillan placed handcuffs on Mr. Azonwanna to the front. PC Gillan had no notes or memory of Mr. Azonwanna’s demeanour.
[46] Mr. Azonwanna testified, and I accept his evidence on this issue, that when the transport officers handcuffed him, he was scared, felt emotional, and did not know what was going on. He had never been arrested before, and he found the whole situation confusing.
[47] They left the airport at 3:52 p.m. There was a very bad snowstorm that afternoon, so the drive to 51 Division took much longer than usual. The in-car video was played as part of the voir dire. At the outset, one of the officers asks Mr. Azonwanna if he knows what he is under arrest for, and Mr. Azonwanna responds with the charges. The officer then says that anything he says will be on camera, and suggests he not say anything, and says they will get him a lawyer when they get to the station. There is no other discussion of relevance until they arrive at 51 Division at 5:12 p.m.
[48] Neither PC Gillan nor Sgt. Day advised Mr. Azonwanna of his right to counsel, as they were told by Detective Patel that he had already done so.
[49] When they arrived at 51 Division, at 5:12 p.m., the officers had a discussion with the booking officer, and were told there would be a delay in bringing Mr. Azonwanna in for booking. Mr. Azonwanna then told the officers that he needed to urinate badly (this is all captured on the in-car video). The officers asked if he could wait 10 minutes. Mr. Azonwanna said, he feels really bad and needs to urinate very badly. The officers ask if he is ok with urinating outside. Mr. Azonwanna responds, “if I won’t get in trouble for it.” The officer says, “no, you won’t get in trouble. We’ll take you over there where no-one can see you.” Mr. Azonwanna can then be seen on the in-car video exiting the police car.
[50] PC Gillan testified that at that point the car was parked inside the property of 51 Division, but out of doors, outside the sallyport. The area is gated with high walls, so a member of the public cannot see in unless they are in an elevated position. PC Gillan testified that Mr. Azonwanna was taken to urinate outside on the 51 Division property, but was not visible to everyone. PC Gillan testified that Mr. Azonwanna did not complain about being made to urinate outside.
[51] The events of Mr. Azonwanna being made to urinate outside were confirmed by Mr. Azonwanna in his videotaped statement to police (at pp. 64-69 of the interview transcript). He was made to urinate outside, while it was snowing, in handcuffs. He was taken to a corner, where he was given some privacy, but it was not entirely private.
[52] PC Gillan testified that he did not inquire about the reason for the delay in booking. He testified that it is the practice not to have two people under arrest in the booking area at the same time. In cross-examination, PC Gillan reiterated that Mr. Azonwanna was not allowed to urinate inside when they arrived at 51 Division, because another person was being paraded in the booking area. He was asked if there was another way into the Division, and he responded, “not for prisoners”. He confirmed that there is a camera on the outside of the building, but said he did not take Mr. Azonwanna in front of the camera to urinate. But he agreed that he did not explain that to Mr. Azonwanna. He could not recall if he told Detective Thomas that Mr. Azonwanna had been made to urinate outside.
[53] I note now that I do not accept that it was not possible to take Mr. Azonwanna inside to use a washroom, rather than making him urinate outside, or that it would have caused safety concerns to take him inside to use a washroom. Rather, I find it was simply a matter of officer convenience, and perceived practice. I do not accept that there would have been any officer safety concern from taking Mr. Azonwanna inside through the booking area in handcuffs to use a washroom, even while someone else was being booked. Indeed, PC Gillan did not say there was a safety concern, he just said it was a practice not to have two prisoners in the booking area at the same time.
[54] Mr. Azonwanna was brought in for booking at 5:36 p.m. The booking video was played during the voir dire. I will not recount the full events of booking. During the booking one of the transport officers tells the booking officer that Mr. Azonwanna has been “read” his right to counsel, and said he understood, and that he wants to call a lawyer.
[55] After the booking was completed, Mr. Azonwanna was taken to the washroom, and then at 5:43 p.m. was placed in an interview room. PC Gillan then called duty counsel for Mr. Azonwanna. PC Gillan testified that he called duty counsel because Mr. Azonwanna did not have a particular lawyer he wanted to speak to.
[56] Duty counsel called back and spoke to Mr. Azonwanna from 6:11 to 6:18 p.m. PC Gillan testified that he did not recall Mr. Azonwanna saying he had any concerns with the advice from duty counsel. He testified that if Mr. Azonwanna had said he had concerns, he would have called a second duty counsel.
[57] After Mr. Azonwanna was done with duty counsel, PC Gillan gave Mr. Azonwanna two sandwiches. PC Gillan had no further interaction with Mr. Azonwanna after that.
[58] I accept that PC Gillan did not use any force on Mr. Azonwanna, and his only physical contact with Mr. Azonwanna was to cuff him to the front at the time of the initial transfer of custody, to put his seatbelt on him in the cruiser, and to escort him to the interview room. Mr. Azonwanna was cooperative throughout his time with PC Gillan. I accept that neither PC Gillan nor Sgt. Day made any threats or promises to Mr. Azonwanna.
(v) The videotaped interview
[59] Mr. Azonwanna was interviewed by Detective Thomas from approximately 7:09 p.m. to 11:07 p.m. on December 15, the same day as the arrest, a period of four hours. Detectives Patterson and Chin watched the interview from the monitoring room, but did not participate in the interview.
[60] Detective Thomas is a very experienced police interviewer, with extensive specialized training in conducting custodial interviews. He is a member of the polygraph unit of the Toronto Police Service. At the time he testified, he had done close to 300 custodial interview. He was approached by Detective Chin on November 29, 2016 to become involved in the investigation and interview Mr. Azonwanna when he was arrested. Over the two weeks prior to conducting the interview, Detective Thomas prepared by reviewing the complainant’s statement and the investigation to that point, and conducting internet searches about Mr. Azonwanna’s background.
[61] The videotape of the interview, as well as a transcript, were marked as exhibits on the voir dire. The transcript is 397 pages long. Because these objective records of what occurred during the interview were marked as exhibits, I will not summarize the interview in its entirety, but rather will focus on the aspects that raise concerns for me in terms of voluntariness, and are relevant to the Charter issues.
[62] I note that part of the evidence led by the Crown in relation to the videotaped interview was evidence from Detective Thomas about his subjective characterization of what he was doing and why at various points in the video. Although there was no objection to this evidence, in my view it is of little relevance in assessing the issues I must consider to determine either voluntariness or the Charter issues in this case. The video speak for itself. That said, as I will address at the end of this section, there are aspects of Detective Thomas’ evidence about why he did various things during the interview that I do not accept. As I find that his evidence about his subjective purposes has limited relevance to the legal issues I need to determine, I address this later. But I feel it necessary to address that I find some aspects of Detective Thomas’ evidence to be incredible, and not to have been candid with the court.[^2]
[63] Mr. Azonwanna’s evidence about the videotaped interview also contains extensive summary about the contents of the interview. As the video speaks for itself, I will focus on what is on the video in this summary. However, to the extent it is relevant to the s. 10(b) analysis, I also address Mr. Azonwanna’s evidence about his understanding of various events.
[64] I note at the outset that this is not a case where there is a suggestion that Detective Thomas (or any of the other officers) were physically or verbally aggressive with Mr. Azonwanna. Throughout the interview, Detective Thomas’ manner was calm. And he repeatedly told Mr. Azonwanna that he did not have to answer questions, and it was his choice whether he answered questions. However, at the same time, Detective Thomas both downplayed the seriousness of the allegations, and offered subtle (and ultimately not so subtle) inducements for Mr. Azonwanna to speak.
[65] As noted above, the interview began at 7:09 p.m. After some brief discussion about Mr. Azonwanna being cold, and Detective Thomas getting him some other clothing and water, Detective Thomas says he is going to ask Mr. Azonwanna some questions, and Mr. Azonwanna asks, “Would I be able to know why I’m here first?” (pp. 7-8). Detective Thomas says he will give him “the details”, but does not do so at that time, and says it is up to Mr. Azonwanna if he wants to answer questions or not (p. 8).
[66] Detective Thomas then asks Mr. Azonwanna a series of questions asking him to confirm events of the arrest at the airport (pp. 10-13). Mr. Azonwanna answers several of these questions, but then says, on the advice of counsel he does not wish to say anything (p. 13). Detective Thomas then responds: “Okay. Okay. Here’s what I’m gonna do and I totally respect that Andre. This is the first time you’ve ever been through this I – I get it. Okay. Um you obviously don’t know what the heck is going on here and I think you probably want to know what’s going on. All right. [Mr. Azonwanna: Yes.] Ah before we talk about that though, I need to – I need to be re-assured that you at least understand what your rights are” (pp. 13-14).
[67] Detective Thomas then continues asking Mr. Azonwanna questions to confirm events at the airport (pp. 14-18). When he gets to the point in the narrative of the arrest, Detective Thomas asks Mr. Azonwanna if he remembers the three offences he was told he was arrested for. Mr. Azonwanna responds: “Um my counsel does not want me to say anything”. Detective Thomas then explains the three offences that were the basis for the arrest. During the course of the explanation of the offences for which he was arrested, Mr. Azonwanna says, “I’m still in shock”, and begins to cry. Detective Thomas says: “Um I’m hopefully, gonna enlighten you with what’s going on. And hopefully, I’m going to bring that anxiety down. Okay. And put things into perspective. All right. It’s not the end of the world. Okay. All right. So, I – I want you to understand that. Okay. These are just allegations, that’s all they are right now. All right. Okay. And you’re going to get through this. Okay. And all we want to do it we just want to see that the truth ultimately comes out. All right. You know. That you know, people move on with their lives. Okay. And this matter gets resolved and that’s all we’re here to do.” (pp. 18-20)
[68] Mr. Azonwanna continues to be emotional. Detective Thomas continues to explain the offences which were the basis for the arrest, but as he does so also continues to downplay the seriousness of the allegations, saying things such as: “It’s not the end of the world. Okay. And you need to understand that. Okay. You got a – you got an incredible future head of you kiddo at that”; “This is short-term. All right. Ah we’re gonna get through this. Okay.”; “This is just a hiccup in your life dude.” (pp. 21-31)
[69] Detective Thomas then reads Mr. Azonwanna his right to counsel from a card. I note that from the content, this reading of right to counsel is comprehensive in terms of the informational component. Detective Thomas asks Mr. Azonwanna if he remembers being told that, and if he understands, and Mr. Azonwanna responds: “They never said that… They never read it to me.” Detective Thomas asks further questions about this, and Mr. Azonwanna says that at the airport he was told the three charges, but they did not read to him what Detective Thomas just read (i.e., right to counsel). He also said he spoke “on the phone with the guy” (which I take to be a reference to speaking to duty counsel at 51 Division) (pp. 31-33).
[70] Detective Thomas asks a series of questions about whether Mr. Azonwanna understands the right to counsel as Detective Thomas has just read it. Initially Mr. Azonwanna says, “I’m confused a bit”. I pause to note that this is the first time that Mr. Azonwanna clearly expresses to Detective Thomas a lack of understanding of his rights (here s. 10(b)), after he has spoken to duty counsel. Detective Thomas then explains various aspects of the right to counsel, and at the end of this, Mr. Azonwanna says he understands (pp. 31-35).
[71] Detective Thomas then reads Mr. Azonwanna the primary caution. Mr. Azonwanna says the officers at the airport had read him that. Detective Thomas asks him if he understands what it means. Mr. Azonwanna says, “I don’t know.” I pause to note that this is the second time that Mr. Azonwanna clearly expresses to Detective Thomas a lack of understanding of his rights (here the rights to silence in the aspect that is expressed in the primary caution), after he has spoken to duty counsel. Detective Thomas then gives an explanation of the caution, which is as follows (I have omitted Mr. Azonwanna saying things such as “right” and mm-hmm” throughout the explanation): “It means that um – um you have the right to to, to speak. Okay. And, but you need to understand, that if you do talk that what you say may be presented in court. Okay. And what that means is that it can be presented in your own defence. But it also can be presented in a manner, which is used against you. Okay. So, it’s presented in court. And that’s why we video and audiotape, you know, our conversations. Okay. So, there’s no misunderstanding. There’s none – and nobody is gonna force you to say something that you – you don’t want to say” (emphasis added) (pp. 36-38).
[72] Detective Thomas then continues to ask Mr. Azonwanna questions asking him to confirm events at the airport and during the drive to 51 Division (pp. 41-58). When Detective Thomas gets to the part of the narrative of the arrival at 51 Division, Mr. Azonwanna tells Detective Thomas that he told the transport officers that he needed to use the washroom, and they asked if he could hold it for 10 minutes, and he told them he really needed to go. Detective Thomas asks if they let him use the washroom, and Mr. Azonwanna says he went outside. He says that one of the officers let him out of the cruiser, and brought him “somewhere cornerish and I used the bathroom”. Detective Thomas says he was not aware of that, and asks where it happened. Mr. Azonwanna explains that it was in the yard at 51 Division in “the corner”, and it was snowing. Detective Thomas says he is sorry about that, and askes if they gave him some privacy, to which Mr. Azonwanna responds “Ish”. I take this to mean, as is common in the speech of young people, that he was referring to the word ending “ish” as in “privacy-ish”; that is having some aspect of privacy, but not being totally private. Mr. Azonwanna also explained that the handcuffs were not removed when he was made to urinate outside (pp. 64-69).
[73] Detective Thomas asks a series of questions asking Mr. Azonwanna to confirm events during the booking (pp. 71-75). During this discussion, Mr. Azonwanna says he was allowed to use the washroom after the booking and before being placed in an interview room. Detective Thomas says just to let him know if he needs the washroom, or food (p. 75).
[74] Mr. Azonwanna confirms that he spoke to duty counsel and that he was satisfied with his conversation with duty counsel. He confirms he was given two sandwiches, and two juice boxes, and used the washroom again (pp. 79-81). Mr. Azonwanna confirms that no-one has threatened him, except that he was scared when Detective Patel first approached him at the airport and took his phone before identifying himself as a police officer (pp. 84-85).
[75] Detective Thomas then asks Mr. Azonwanna if anyone had made any promises to him to that time. Mr. Azonwanna responds, “yes”. He then explains: “They said that – they said that um – they said that if – if – I can’t remember exactly ah the words. But it was something about um I will go home if they decide to, and if not, I will go to court the next day…. Something along – I don’t remember the exact words.” Detective Thomas responds: “Okay. Ah let – let me clarify that. Okay. Because I think maybe you might have misinterpreted what they were saying. All right”. By his response, I find that Detective Thomas clearly understood Mr. Azonwanna’s response to show that he did not understand what he was told about bail. I pause to note that this is the third time that Detective Thomas had an indication that Mr. Azonwanna did not understand his rights (here, rights in relation to bail), after he has spoken to duty counsel. Detective Thomas then explains to Mr. Azonwanna what is likely to happen in relation to bail. At the end of this explanation, Mr. Azonwanna says, “Like, they never interpreted it the way you interpreted it.” He also confirms that he understands that no-one was making him any promises (pp. 85-88).
[76] Detective Thomas then reads Mr. Azonwanna the secondary caution. He asks Mr. Azonwanna if he understands what it means. Mr. Azonwanna responds, “yes”. Then Detective Thomas asks Mr. Azonwanna to tell him what he thinks it means, and Mr. Azonwanna responds: “Um I just know – I – I just know you’re basically saying that you’re – you’re basically gonna tell me what’s final… Like at the end, you’re gonna tell me like um – like my rights – and what’s happening.” I find that this statement is a clear indication that Mr. Azonwanna did not understand the secondary caution. I pause to note that this is the fourth time that Detective Thomas had an indication that Mr. Azonwanna did not understand his rights (here the aspect of the right to silence embodied by the secondary caution), after he had spoken to duty counsel. Detective Thomas then gives a further explanation of the secondary caution (pp. 88-90).
[77] Detective Thomas testified that in the portion of the statement where he was going over the various rights with Mr. Azonwanna, he did so, even though he understood that other officers had advised Mr. Azonwanna of his rights, as an extra form of ensuring that Mr. Azonwanna understood what was read to him. Detective Thomas testified that he did not have a concern about Mr. Azonwanna understanding his rights after he explained them to him. I make the following finding with respect to this evidence. I accept that Detective Thomas believed that Mr. Azonwanna understood his rights after Detective Thomas provided various further explanations of them. But I do not accept (and indeed, Detective Thomas did not give evidence suggesting this), that Detective Thomas believed Mr. Azonwanna understood his rights at the outset of each right Detective Thomas read to him. As I have outlined above, it was clear from Mr. Azonwanna’s responses each time Detective Thomas read a right to him that Mr. Azonwanna did not understand. I find that this was also clear to Detective Thomas, since each time he then proceeded to give a further explanation to Mr. Azonwanna. As I will explain below, the constitutional problem with this is that Mr. Azonwanna was expressing a lack of understanding of his rights after he had spoken to duty counsel.
[78] Mr. Azonwanna then asks for, and is given, a bathroom break (pp. 90-95)
[79] Detective Thomas then engages Mr. Azonwanna in discussion about his background, not yet touching on the alleged offences. This starts at approximately 8:12 p.m. p.m., just over one hour into the interview. During this portion of the interview, they discuss: that Mr. Azonwanna frequently needs to urinate, that he has had testing regarding this, but it has never shown anything; that he has alopecia; that Mr. Azonwanna had been up late with his teammates the night before, gone to bed at 6:00 a.m., and got up at 7:00 or 8:00 a.m.; what he had eaten earlier in the day; his general diet as a track athlete; his educational background; his track and field career; his relationships with his relatives and who he lives with; how long he had just been in Florida for the track training camp; and the death of his mother (pp. 95-171). This discussion of subjects unrelated to the alleged offences takes approximately 40 minutes.
[80] Detective Thomas begins to move the subject of the interview to the allegations starting with a discussion of Mr. Azonwanna having access to his sister’s car (which matches the description of the vehicle the complainant said he was driving at the time of the offences), whether he has any tattoos, and whether he uses a particular email address (pp. 171-174). This is around 8:52 p.m., close to two hours into the interview.
[81] Detective Thomas then engages in questioning Mr. Azonwanna about how he met the complainant, about their interactions prior to the date of the alleged offences, and about the alleged offences. This begins at about just before 8:53 p.m., close to two hours into the interview. I will not summarize the details of Mr. Azonwanna’s answers, but his description of the sexual encounter with the complainant was exculpatory, and he said the sexual contact was consensual. He admits to having made “a couple”, or maybe three, short videos on his cell phone of the complainant performing fellatio on him. He said he had deleted some of the videos afterward to make space on his phone, but that one five second video of the complainant performing fellatio on his was still on his phone. During this portion of the interview Mr. Azonwanna does not reassert his right to silence (pp. 174-340). This portion of the interview continues until shortly after 10:00 p.m.
[82] Detective Thomas then turns the questioning to the issue of the video on the phone, and asking for Mr. Azonwanna’s phone password. This begins at about 10:06 p.m., approximately three hours into the statement. Detective Thomas asks Mr. Azonwanna to confirm that the five second long video of the complainant performing fellatio is still on his phone, which he confirms. Detective Thomas then asks for the passcode for the phone. Mr. Azonwanna asserts his right to silence. He says he would get in trouble if he gives it, and the person on the phone told him not to give it (pp. 340-343).
[83] At this point, Detective Thomas tells Mr. Azonwanna that the complainant is 17 years old. This is the first time in the interview that Detective Thomas says this (Mr. Azonwanna had said earlier in the statement that when he met the complainant, she told him she was 20 years old (pp. 220-222)). Mr. Azonwanna appears surprised by the information that the complainant is 17. Detective Thomas explains that it is not illegal to have sex with someone who is 17, but if you make a videotape of it, that is creating child pornography, even if the 17 year old agrees to making the video (pp. 343-347).
[84] I reproduce extensively the next portion of the interview (somewhat edited for length). In my view, it constitutes a significant inducement for Mr. Azonwanna to provide the password (and as I discuss below, also required offering a further opportunity to consult with counsel). In the extract below, “T:” is Detective Thomas, and “A:” is Mr. Azonwanna. I have underlined portions that are of particular concern in my analysis (pp. 347-352; this portion begins at 10:09:36 p.m.):
T: So, what you have on your phone by definition is child pornography. Okay. So, here’s the thing and you have – you have every right not to disclose to me what your password is. Okay. Ah and certainly, if you have other footage of illegal activity. . .
A: Oh, no, for sure.
T: Okay. Well, okay. But do you – here’s the thing. I have to get that. Okay. I have to take it off your phone. Okay. Um I can’t run the risk of – you’ve already emailed it to yourself. Okay. Have you emailed it to anyone else?
A: No.
. . . [discussion of vulnerability of the complainant]
T: Because it was that one night that’s led to this problem. But I gotta get – I got to get that email back. And so, we have to keep your phone. I would like to open up your phone. I’d like to seize that and take it off your phone.
A: And what would happen to me then?
T: Well, um that’s something that you will have to decide. I – I – I can’t put myself in a position to suggest that there’s gonna be a benefit or a – a punishment for that. But – but – I just – and you need to understand something. That is on your phone. Okay. And now that you know she’s a 17-year-old. By being in possession of that – that’s just – ah you know that in itself just in my opinion um it creates the problem. Okay. So, um why don’t – why don’t I do this. Let me – do you need to go to the bathroom?
A: No.
T: Okay. Let me – let me – let me. You think about this for a couple of moments. Okay. I’m gonna step out because I got to use the washroom. All right. Um I’ll give you another option. Well, no. I think that’s the only option I can offer right now. Um I’m gonna let you think about it. Okay. Here’s – Here’s what I’ll do, and what – what I’d like you to think about. I want you to think about providing me the password. Okay. If you provide me with the password, I’m gonna copy your phone. Okay. We’re gonna – we’re gonna se-s-seize that um video clip. Okay. Take it off your – your – your phone. Okay. Ensure – because we’ve got tech guys. To make, ensure that your – your phone is wiped clean of any – of any – because you say you deleted some. You took some. You deleted some.
A: Mm-hmm.
T: Yeah. We want to make sure it’s off. Okay.
A: Yes.
T: And ah and then – and then ah – and then we’ll – you know, and we’ll proceed. Okay. But the choice is gonna be yours. But I want you to think about it because Andre, we’re dealing with a – an extremely vulnerable girl here. Okay. She’s not your average 17-year-old.
A: I’ll give you to password.
T: What’s the password.
A: It’s [XXXX – password provided just before 10:14 p.m.]
[85] Detective Thomas then closes of this portion of the interview by reiterating his view of the vulnerability of the complainant, and confirming the phone password again, and then exits to use the washroom (pp. 351-355). At this point it is approximately 10:18 p.m., just over three hours into the interview. Detective Thomas is out of the room for about 12 minutes. While Detective Thomas is gone, Mr. Azonwanna sits quietly for a time, and then appears to be crying.
[86] Detective Thomas returns to the interview room at approximately 10:30 p.m. He asks a few more follow up questions on specific issues related to the alleged offences (pp. 357-365). Then he explains to Mr. Azonwanna what to expect in terms of being taken to court in the morning for a bail hearing, and the types of bail conditions the police would ask the Crown to seek (pp. 366-78).
[87] Detective Thomas then allows Mr. Azonwanna to phone his godmother (which he had earlier requested). This takes up approximately the last eight minutes of the video (pp. 378-394). Then Detective Thomas terminates the interview and the video at 11:07 p.m.
[88] Mr. Azonwanna gave evidence (affidavit of Mr. Azonwanna, paras. 17-21, and viva voce) that in the portion of the statement I have outlined above, where Detective Thomas pressed him to provide his phone password, it was his understanding that Detective Thomas wanted the phone password in order to remove the fellatio video from the phone, and to make sure it was not put on the internet. He said he, “put my trust” in Detective Thomas. Mr. Azonwanna testified that he believed Detective Thomas when he told him that all he wanted to do was to get the video off of the phone so it would “not lead anywhere else”. He testified that that is why he gave Detective Thomas the password. Mr. Azonwanna did not understand that providing the password would allow the police and prosecution to obtain evidence from his phone that they would not otherwise have been able to retrieve. He did not know it could be used to incriminate him. I accept Mr. Azonwanna’s evidence that he believed that Detective Thomas was saying that he needed the phone password in order to remove the fellatio video from Mr. Azonwanna’s phone, and to make sure it was not put on the internet. I accept Mr. Azonwanna’s evidence that he did not understand that by providing his phone password, he was allowing police to obtain evidence from his phone that they would not otherwise have been able to retrieve.
[89] In cross-examination, Mr. Azonwanna testified that during the interview, he had not wanted to speak to the police and the lawyer told him not to (duty counsel). He told Detective Thomas that. Mr. Azonwanna testified that when, later during the interview, he told Detective Thomas what had happened with the complainant, he did so because Detective Thomas had started to ask questions that made him feel like he had to say something. Crown counsel asked what Detective Thomas did that made him feel that he had to say something. Mr. Azonwanna said, “It was just the way he was putting things. Like he may have said that [that Mr. Azonwanna did not have to answer questions], but then he added other things to it.”
[90] In re-examination, Mr. Azonwanna was asked about to explain what he meant by this. He said:
He [Detective Thomas] would almost, like, you know, tell me, you don’t have to [speak]. But then, I don’t know how he did it, but he would make it seem like, it’s ok to talk to me, it’s ok, like, don’t worry about anything, you can talk to me. It’s almost like, in the back of my mind, ok yeah, like, I won’t, I don’t know, like … It’s just, he just put it in a way where, it’s ok to open up to me, and don’t worry about anything. And I trusted that. And that’s the reason why I gave my password. I trusted that.
[91] I note as well that in his trial evidence, both in examination-in-chief, and cross-examination, Detective Thomas admitted that obtaining the password to Mr. Azonwanna’s cell phone was “crucial”. He understood that the investigating officers believed that it contained a video of one of the sexual acts alleged. He understood that it is often hard for police to unlock a phone to retrieve information from it if they do not have the password; although he said he is not a tech expert.
[92] As I adverted to earlier, there are aspects of Detective Thomas’ evidence that I do not accept as true. As these issues are not central to the legal issues I need to decide, I will not enumerate all of them. But in circumstances where I find that an officer was not candid in his evidence, in my view, I should not let it pass without comment.
[93] The first area where I do not accept Detective Thomas’ evidence relates to his reasons for questioning Mr. Azonwanna about his background (school, track and field, etc.). In examination-in-chief, Detective Thomas said that the reason for discussion about Mr. Azonwanna’s background and things like his track career was to build rapport with him, and to create an opportunity to open up conversation so that later he could ask questions related to the investigation. Initially in cross-examination, he gave a similar explanation.
[94] He was then asked in cross-examination if the purpose of asking about the person’s background is to get someone who may not wish to speak to police to change their mind. Detective Thomas denied that asking questions about the person’s background was done for the purpose of getting them to speak about the events under investigation. He said the questions about background are important to understand the person being interviewed, but are not a tactic to further the interview and are not done for that purpose. He said questions about background were asked so he could see the accused’s side of things, and to give the court insight into the individual’s situation and their life. He said the background information is valuable to the court to understand where the individual comes from. Detective Thomas denied that his purpose in speaking to Mr. Azonwanna about these topics was to get him to speak so that he would later talk about the alleged offences, despite his repeated assertions at the start of the interview that he was not going to say anything, and that the lawyer told him not to say anything.
[95] I do not accept Detective Thomas’ evidence on this issue. I find that it is transparently false. As I have outlined, there was extensive advance planning for the arrest of Mr. Azonwanna, including plans to try and seize his cell-phone unlocked. I find that Detective Thomas wanted to get a statement about the offences from Mr. Azonwanna, and wanted to get the cell phone password, and his engaging Mr. Azonwanna in conversation about school and track and field was simply a means to try and overcome Mr. Azonwanna’s repeated assertions that he was not going to say anything.
[96] I want to be clear that I am not suggesting that this tactic of asking questions about Mr. Azonwanna’s background was unlawful, or in itself violated the Charter rights of Mr. Azonwanna. But I do not believe Detective Thomas’ evidence that his purpose was just to find out more about Mr. Azonwanna, rather than to try and get Mr. Azonwanna to speak about subjects other than the allegations under investigation, in hopes that he would then cease to assert his right to silence and then questions could be asked about the allegations. I find that Detective Thomas’ purpose was to get Mr. Azonwanna to stop focusing on his right to silence and the lawyer’s advice, by talking about general subjects, and then to steer him back to the subject of the alleged offences, as Detective Thomas ultimately did.
[97] The second area where I do not accept Detective Thomas’ evidence relates to his evidence about not understanding that Mr. Azonwanna was likely facing a significant jail sentence if he was found guilty. Near the start of his cross-examination, Detective Thomas agreed that what he meant when he told the investigating officers prior to the arrest to ensure that Mr. Azonwanna was informed of “his full jeopardy”, was that he should be told about all of the charges he was being arrested for. He agreed that jeopardy includes the possible consequences of charges. He agreed that if someone is charged with serious criminal offences, he would not want that person to think the offences they were charged with were not serious. He agreed that the charges that Mr. Azonwanna was under arrest for at the time he interviewed him, sexual assault, forcible confinement, and producing child pornography were serious charges.
[98] However, when defence counsel suggested to Detective Thomas that if found guilty of these charges, Mr. Azonwanna was facing serious penal consequences, in my view, Detective Thomas was evasive. He said, sentencing is a spectrum, and one possible consequence is serious penal time. Defence counsel then suggested that Mr. Azonwanna would not be facing a discharge if he was found guilty. Detective Thomas responded that he did not know what was available in the Criminal Code. When it was again suggested to him that he knew, based on 30 years’ experience as a police officer, that jail was a likely consequence if Mr. Azonwanna was found guilty, Detective Thomas again responded saying, sentencing is a spectrum. Defence counsel then asked Detective Thomas if he was unwilling to agree that when he interviewed Mr. Azonwanna, he knew that as a result of the charges Mr. Azonwanna was facing serious penal consequences if found guilty. Detective Thomas said he was not aware, and he did not have that foresight. This continued for a few more questions, with Detective Thomas again saying sentencing is a spectrum, and he cannot predict the ultimate sentence in the future.
[99] I do not believe Detective Thomas’ evidence that he was not aware when he interviewed Mr. Azonwanna that if Mr. Azonwanna was found guilty of the offences on which he was arrested, he was facing a significant custodial sentence. Detective Thomas had viewed the complainant’s statement. He was well aware of the allegations. He is an experienced officer. Although no-one could predict the specific sentence, Detective Thomas had to have known, given the nature of the allegations, that if Mr. Azonwanna was found guilty, he would face a significant custodial sentence.
[100] This brings me to the third area where I do not believe Detective Thomas’ evidence. As I have outlined above, at various points in the interview Detective Thomas downplayed the seriousness of the allegations that Mr. Azonwanna was facing. In particular, early in the interview, before the statements about the subject-matter of the allegations, and before the phone password was given, Detective Thomas said things like: “it’s not the end of the world”; “you’re going to get through this”; “people move on with their lives”; “this is short term”; “we’re gonna to get through this”; and “this is a hiccup in your life dude”.
[101] In cross-examination, Detective Thomas denied that in saying these things to Mr. Azonwanna he was trying to minimize the seriousness of the situation and of the consequences Mr. Azonwanna was facing, in order to make him more likely to speak to him. Detective Thomas claimed that he was just trying to have some understanding of who Mr. Azonwanna was, and have some empathy, and to put the allegations in context.
[102] Again, I do not believe this explanation by Detective Thomas. He had been brought into the investigation specifically in order to interview Mr. Azonwanna. His task was to get a statement from Mr. Azonwanna about his version of events. Detective Thomas also knew the importance of obtaining the phone password to the investigation, as he knew from the investigators that Mr. Azonwanna’s phone had been seized locked, and was believed to have evidence on it. I simply do not accept that in these circumstances, Detective Thomas was acting out of compassion. Rather, I find that he minimized the seriousness of the potential consequences Mr. Azonwanna was facing from the charges in order to make Mr. Azonwanna more likely to speak.
[103] I accept that minimizing the seriousness of the charges will not in every case raise concerns about voluntariness. It depends on depend on all of the circumstances. My point at this stage is simply to say that I do not believe Detective Thomas’ evidence that he was not trying to minimize the seriousness of the allegations and the consequences that Mr. Azonwanna was facing as a tactic to get him to speak.
(vi) Discoverability of the evidence on the cell phone absent Mr. Azonwanna providing the password during the statement
[104] I find that the record before me is clear that the evidence that was seized from Mr. Azonwanna’s cell phone was not discoverable by the police absent Mr. Azonwanna providing the password during the videotaped statement. The evidence of the officers was consistent on this issue.
[105] Detective Vadivelu has been with the tech crime unit of the Toronto Police Service since 2013. The mandate of the unit is to recover and extract data from devices such as cell phones and computers. Part of the responsibility of officers of the tech crimes unit is to assist other units by attending to seize or extract data from devices. If a device such as a cell phone is seized locked, and the officers do not have the pass code, it can be difficult or impossible to extract the data. They have software to try and recover passcodes, but it can take weeks or months to get the passcode, if it even succeeds. Sometimes only changes or developments in technology will allow police to extract data from a locked password protected device. For a brand new phone model, it is impossible to extract data if the phone is locked and police do not have the password, but in a few years, it may be possible, as the technology develops.
[106] When Detective Vadivelu was handed Mr. Azonwanna’s cell phone at the time of the arrest (just after 3:24 p.m.) he observed that the phone was locked. He took the phone to the security office at the airport. He took the SIM card out of the phone and did an extraction from the SIM card to obtain the phone number for the phone. He then placed the SIM card back in the device. He did not do an extraction of data from the phone because it was locked. Detective Vadivelu told Detective Patel that he was unable to access the data on the phone because he did not have the password.
[107] Detective Vadivelu also gave evidence about the extraction of data from the phone, much later, on January 30, 2017, pursuant to a search warrant, and with the password that Mr. Azonwanna provided to Detective Thomas during the videotaped interview on December 15, 2016. I will not recount that in detail, other than to note that among the items on the phone was a short video of the complainant performing fellatio on Mr. Azonwanna.
[108] In cross-examination, Detective Vadivelu agreed that he was not able to open the cell phone at the airport, because it was locked, and he did not have the password. He also agreed that he was able to open the phone later when the search warrant was obtained (in January 2017) because he had the password (provided by Mr. Azonwanna in the interview with Detective Thomas). He also agreed that at the time he did the extraction on Mr. Azonwanna’s phone (i.e., in January 2017), software to access that phone without the password did not exist.
[109] Detective Patterson, although not herself an expert in IT issues, testified that based on her investigative experience, without a password to a cell phone, the police cannot get information off a cell phone unless it is seized unlocked. The police “tech guys” cannot get in, and they would have to send the phone to the United States to try and retrieve information from it, and it can cost $25,000, and they would not get approval to spend that.
[110] Detective Patel also testified that in his experience it can be difficult to retrieve evidence from a cell phone if it is locked. But he said that retrieving evidence off cell phones is not his job, and is done by tech crime unit officers.
[111] Similarly, Detective Chin testified that in his experience, especially with newer model phones, if a phone is seized locked, the police may not have the capability to extract data from it.
[112] Based on all of this evidence, and in particular the evidence of Detective Vadivelu, I find that because Mr. Azonwanna’s cell phone was locked when it was seized by police and password protected, the contents of his cell phone were not discoverable by the police in the absence of Mr. Azonwanna giving them the password.
Has the Crown proven the statement voluntary beyond a reasonable doubt, and did manner in which the statement was obtained infringe Mr. Azonwanna’s s. 7 rights?
[113] I will address voluntariness and s. 7 together in light of the holding in Singh that in the context of a custodial interview, voluntariness and the s. 7 right to silence are functionally equivalent. If a statement taken in a custodial setting is not voluntarily obtained, it will also be obtained in violation of s. 7 of the Charter.
[114] The Crown submits that on the record before the court it has proven beyond a reasonable doubt that Mr. Azonwanna’s statements in the videotaped interview were voluntary, including providing his phone password. If the statements are voluntary, then in the context of a custodial interview, they also did not violate Mr. Azonwanna’s s. 7 right to silence. The Crown submits that Mr. Azonwanna was advised of his right to counsel and spoke to counsel before he gave the statement. Although Mr. Azonwanna asserted his right to silence at the outset of the statement, the Crown submits that Detective Thomas spent four hours “building a relationship” with Mr. Azonwanna, and based on that Mr. Azonwanna voluntarily chose to cooperate with the investigation and give a statement, and provide his cell phone password. The Crown submits that the circumstances in which the statement were taken were not oppressive. Mr. Azonwanna was given food, water, and access to the bathroom when he needed it.
[115] The defence submits that the court should be left with a reasonable doubt about the voluntariness of Mr. Azonwanna’s statements during the videotaped interview, based on the totality of the circumstances. The defence also takes the position that the statement was given in breach of Mr. Azonwanna’s s. 7 right to silence. The defence relies on the totality of the circumstances in which the statement was taken, including that Mr. Azonwanna repeatedly asserted his right to silence; oppressive circumstances including lack of sleep, and being made to urinate outside on arrival at 51 Division rather than having been taken to a bathroom; that Detective Thomas denied Mr. Azonwanna accurate legal information about the seriousness of the situation he was in and minimized the seriousness of the allegations he was facing; that Detective Thomas denied Mr. Azonwanna accurate legal information about his rights, and undermined advice Mr. Azonwanna received from duty counsel; and that Detective Thomas induced Mr. Azonwanna to provide the phone password by misleading him about what the phone password would be used for.
[116] The modern confessions rule in Canada was comprehensively explained by the Supreme Court of Canada in R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38, and more recently summarized in R. v. Spencer, [2007] 1 S.C.R. 500, 2007 SCC 11 at paras. 11-13:
At common law, statements made by an accused to a person in authority are inadmissible unless they are made voluntarily. This Court set out the test for ascertaining the voluntariness of such statements in Oickle. That case “recast the law relating to the voluntariness of confessions . . . It rejected resort to fixed and narrow rules”: D. M. Paciocco and L. Stuesser, The Law of Evidence (4th ed. 2005), at p. 290. As Iacobucci J. explained in Oickle, at para. 27, the rule “is concerned with voluntariness, broadly understood”. He also emphasized that a contextual approach is required (at para. 47):
The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.
In Oickle, the Court recognized that there are several factors to consider in determining whether there is a reasonable doubt as to the voluntariness of a statement made to a person in authority, including the making of threats or promises, oppression, the operating mind doctrine and police trickery. Threats or promises, oppression and the operating mind doctrine are to be considered together and “should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule” (Oickle, at para. 63). On the other hand, the use of “police . . . trickery” to obtain a confession “is a distinct inquiry . . . [given that] its more specific objective is maintaining the integrity of the criminal justice system” (para. 65).
[117] As was made clear in Oickle at para. 71, a determination of whether the Crown has proven voluntariness is essentially a factual one that must be made having regard to all of the relevant circumstances. In making the determination, the Court must be “sensitive to the particularities of the individual suspect”: Oickle at para. 42.
[118] Subsequent to Oickle, in Singh, the Supreme Court held that in the context of a police custodial interview, the s. 7 right to silence is functionally equivalent to common law voluntariness: R. v. Singh, [2007] 3 S.C.R. 405, 2007 SCC 48 at paras. 21-25. In coming to this conclusion, the court recognized that the modern expansive common law voluntariness rule enunciated in Oickle includes the right of a detained person to make a “meaningful choice” whether or not to speak to state authorities. The focus is on the effect of the circumstances and police conduct on the detainee’s ability to exercise their free will to choose whether to not to speak to police. The test is an objective one; however, the characteristics of the individual are relevant in applying the objective test: Singh at paras. 35-37.
[119] Case law also recognizes the interrelationship between common law voluntariness, the right to silence, and the right to counsel. In addition to the holding in Singh that in the context of a custodial interview, the right to silence is functionally equivalent to the common law voluntariness, the Supreme Court recognized in Oickle (at para. 60) that denial of access to counsel is a factor that can impact on voluntariness of statements as a type of oppression. This is not surprising, since a central purpose of the s. 10(b) right is to allow a detainee to obtain legal advice so that they can make an informed choice about how to exercise their rights, and chief among those rights is the right to choose whether or not to cooperate with police: R. v. Sinclair, [2010] 2 S.C.R. 310, 2010 SCC 35, at paras. 24-26; R. v. Taylor, [2014] 2 S.C.R. 495, 2014 SCC 50, at para. 21
[120] In this case, there is no issue raised about whether Mr. Azonwanna had an operating mind at the time of the videotaped statement. The issues in relation to voluntariness and s. 7 of the Charter relate to a combination of oppressive circumstances, and inducements.
[121] I find that considering all of the circumstances, the Crown has not proven beyond a reasonable doubt that Mr. Azonwanna’s videotaped statement to police was voluntary. I come to this conclusion following the approach set out in cases such as the Supreme Court of Canada decisions in Oickle and Spencer, in particular that voluntariness must be assessed contextually, considering all of the circumstances, and considering together the various different strands of the voluntariness factors such as threats, inducements, oppression and operating mind. In this case my concerns relate to oppressive circumstances, and inducements.
[122] In particular, the following factors, combined, lead me to have a reasonable doubt about the voluntariness of Mr. Azonwanna’s statement to police:
• Mr. Azonwanna had had one or two hours sleep the previous night, and been up for approximately 12 hours at the time the statement started, and approximately 16 hours at the time the statement ended;
• In addition to lack of sleep, Mr. Azonwanna had travelled from the United States that same day boarding his flight just before noon. That type of travel, combined with the lack of sleep, made him tired;
• Mr. Azonwanna’s emotional state, at various points from the time of his arrest and during the taking of the statement. I note, in this context, that Mr. Azonwanna was a young, not especially sophisticated man, who had never been arrested before;
• The lengthy delay involved in transport to 51 Division as a result of the snowstorm and the delay in the booking hall (with Mr. Azonwanna handcuffed the whole time);
• That Mr. Azonwanna was made to urinate outside in the 51 Division yard, in the snow, in handcuffs, in circumstances that were not entirely private;
• That Mr. Azonwanna was not fully advised of the informational component of the right to counsel prior to speaking to duty counsel (discussed above and below at paras. 33-36, 136-140);
• That Mr. Azonwanna repeatedly asserted his right to silence at the outset of the statement, and despite this Detective Thomas continued the interview. Although Singh does not make the number of times a detainee assert the right to silence determinative of voluntariness, whether and the number of times a detainee asserts the right to silence is properly part of the assessment of all of the circumstances that a trial judge must consider in assessing voluntariness: Singh at para. 53; R. v. Otis, 2000 CanLII 11367 (Que. CA) at paras. 50 and 54. It is important to recall that the finding in Singh that there was no s. 7 violation was made in circumstances where the statement had been found to be voluntary at common law, and voluntariness was conceded in the Supreme Court (Singh at paras. 17, 49-50);
• That Detective Thomas did not offer Mr. Azonwanna with an opportunity to reconsult with counsel when, near the start of the interview, Mr. Azonwanna said things that made clear that he did not understand various aspects of his rights after he had spoken to duty counsel (discussed above and below at paras. 69-71, 75-77, 142-154);
• That Detective Thomas told Mr. Azonwanna in explaining the primary caution that if he spoke, that evidence could be presented “in your own defence” (p. 38). This proposition is legally incorrect except in very limited circumstances. This undermined whatever advice duty counsel gave Mr. Azonwanna regarding his right to silence, and provided an inducement to speak. Detective Thomas also said as part of his explanation of the primary caution, “you have the right to speak”;
• That Detective Thomas significantly induced Mr. Azonwanna to provide the password to his cell phone by suggesting that he would face greater jeopardy if he did not do so, and that the child pornography allegation could be resolved by removing the fellatio video from his phone if he did provide his phone password (discussed above and below at paras. 82-84, 125-131);
• That Detective Thomas did not offer Mr. Azonwanna an opportunity to reconsult with counsel prior to being asked to provide the password to his phone (discussed below and above at paras. 82-84, 156-174);
• That Detective Thomas induced Mr. Azonwanna to speak, and undermined the advice of duty counsel by repeatedly downplaying the seriousness of the allegations that Mr. Azonwanna was facing (see paras. 67-68, 100-102 above).
[123] In my view, taken together, these aspects of the circumstances in which the statement was taken created oppressive circumstances of the type described in Oickle (at paras. 58-61), and inducements (Oickle at paras. 48-57), which together that lead me not to be satisfied beyond a reasonable doubt that the statement was voluntary.
[124] Based on the same factors, with respect to s. 7 of the Charter, I find that in all of the circumstances Mr. Azonwanna’s right to silence and right to freely choose whether to give a statement was undermined. I find that his will was overborne. I am left with a reasonable doubt in relation to voluntariness. And I find on a balance of probabilities that the statement and any evidence obtained as a result of the statement was obtained in breach of Mr. Azonwanna’s right to silence under s. 7 of the Charter.
[125] In finding that the Crown has failed to persuade me that the full statement was voluntary, I have included consideration of the particular issues around the obtaining of the phone password, but I want to also address that portion of the statement separately. I do so because there are particular aspects of the portion of the statement where the phone password was obtained that lead me to conclude that even if I had found the earlier portions of the statement to be voluntary, I would have found the portions around the obtaining of the phone password to be involuntary, and obtained in violation of s. 7 and s. 10(b) of the Charter.
[126] In my view there were particular inducements and oppressive conduct by Detective Thomas in relation to the obtaining of the phone password that in themselves rendered that portion of the statement, and any portions following, to be involuntary, and that infringed Mr. Azonwanna’s s. 7 right to silence. I refer to the portions of the interview I have extracted above at paras. 82-84 (interview transcript, pp. 347-52).
[127] I find that read in their ordinary meaning, the words of Detective Thomas in this portion of the interview contain a significant inducement. The exchange would reasonably be understood by Mr. Azonwanna as saying two things to him: (i) that if he did not give the cell phone number so that the police could remove the fellatio video from his phone, then he was facing further jeopardy for possessing child pornography; and, (ii) that if he did give the cell phone number, so that the police could remove the video from his phone, the child pornography aspect of the investigation would be resolved. This is a classic type of inducement, of the kind discussed in Oickle at para. 49. In essence it is saying, if you don’t give me the cell phone password, you are facing more charges (for ongoing possession of child pornography on the phone), and, if you do give me the cell phone password, I will remove the video and the child pornography problem will go away.
[128] Whether or not this inducement was true is not central for purposes of the voluntariness analysis. But I find that it is clear that on the record before me that it was not true. The suggestion that there was somehow more possible jeopardy for Mr. Azonwanna if he did not give the phone password was not true. In relation to the child pornography, the charge ultimately laid was making child pornography (the fellatio video). Whether or not the video remained on the phone, it was already made. That could not be changed. There was not more jeopardy if Mr. Azonwanna failed to provide his phone password. And to the extent there was consideration of a charge of possession of child pornography (not ultimately laid), at the time of the custodial interview, Mr. Azonwanna was no longer in possession or control of his phone. The police had seized it. If he had possessed child pornography on his phone, the possession was complete, and giving the police his phone password could not change it.
[129] Similarly, the inducement that if Mr. Azonwanna gave the police the phone password, the child pornography could be removed, and that could somehow improve Mr. Azonwanna’s situation was obviously not true. Detective Thomas never intended to just remove the child pornography and forget about that charge, nor did the other investigating officers.
[130] I find that the inducement in this portion of the interview was a powerful motivator of Mr. Azonwanna to give the phone password.
[131] I note as well that in this portion of the interview, although at times Detective Thomas says it is Mr. Azonwanna’s choice whether to provide the password, he also repeatedly uses language that indicates that Mr. Azonwanna does not have a choice: “I – I have to get that. Okay. I have to take it off your phone” (p. 347); “But, I gotta get – I got to get that email back” (p. 349); “Um I’ll give you another option. Well, no. I think that’s the only option I can offer right now” (p. 350). This is consistent with Mr. Azonwanna’s evidence that during the interview he felt that although Detective Thomas would say that he did not have to speak, he would then add other things that made Mr. Azonwanna feel like he had to speak.
[132] Taking all of these factors together, I am not satisfied beyond a reasonable doubt that Mr. Azonwanna’s statement to police was given voluntarily.
Were Mr. Azonwanna’s s. 10(b) rights infringed?
[133] The defence submits that Mr. Azonwanna’s right to counsel was infringed in three ways. First, the defence submits that he was not fully informed of his right to counsel at the time of his arrest by Detective Patel. Second, near the outset of the videotaped interview, Mr. Azonwanna showed by a number of things he said that he did not understand his rights after his consultation with counsel. The defence submits that this gave rise to a duty on Detective Thomas to offer a further consultation with counsel, which Detective Thomas failed to do. Third, the defence submits that the police had a duty to offer Mr. Azonwanna a further opportunity to consult with counsel when Detective Thomas asked him to provide the password for his cell phone.
[134] The Crown submits that Mr. Azonwanna was fully advised of his right to counsel at the airport at the time of the arrest, and his right to counsel was properly implemented. The Crown submits that nothing during the videotaped interview with Detective Thomas gave rise a duty on the police to offer a further opportunity to consult with counsel.
[135] In this case I find breaches with respect to the informational duty and the implementational duty imposed by s. 10(b). I will begin with the informational duty.
(i) Breach of informational duty
[136] The informational component of the s. 10(b) right requires that upon arrest or detention, the police tell the individual that they have the right to retain and instruct counsel. This means that the police must tell the individual that they have the right to speak to a lawyer. But the informational component is not limited to that bare information. In addition, it must be made clear to the detainee that they have that right in a timely way. The individual must also be told, if legal aid duty counsel services exist in the particular location (as they do in Ontario), that such a service exists (i.e., immediate, free, temporary legal advice), and how to contact duty counsel. The individual must also be given information about access to counsel free of charge where financial criteria set by the provincial legal aid plan are met (i.e., the legal aid program in general, beyond immediate duty counsel): R. v. Brydges, [1990] 1 S.C.R. 190, 1990 CanLII 123, at pp. 209-215; R. v. Bartle, [1994] 3 S.C.R. 173, 1994 CanLII 64, at pp. 190-98; R. v. Suberu, [2009] 2 S.C.R. 460, 2009 SCC 33, at paras. 37-42.
[137] I find that the defendant’s s. 10(b) rights were infringed at the time of his arrest, as the informational duty under s. 10(b) was not fully complied with.
[138] As I have outlined above at paras. 33-36, I find that the evidence is insufficient to now know exactly what Detective Patel told Mr. Azonwanna about right to counsel. Detective Patel did not read right to counsel off the pre-printed card in his memobook, as is commonly done. The entry in his notebook is quite limited. Over two years later when he testified, he was going entirely by memory. Although Mr. Azonwanna’s memory on this issue is also clearly flawed, I find that whatever he was told, he did not understand it. In the circumstances, I find that the informational component of Mr. Azonwanna’s s. 10(b) rights was not complied with at the airport.
[139] I am particularly troubled by the failure to fully comply with the informational duty imposed by s. 10(b) in this case because the arrest was so well-planned, days in advance of the arrest. This is not a situation where events happened unforeseen, and an arrest was made, and an officer then had to give s. 10(b) rights unexpectedly. Rather, the police had planned the arrest for days. They knew when and where the arrest was taking place. They had taken steps to have specialized officers on scene to deal with the cell phone. And yet Detective Patel made the choice to wing it in giving the informational component of the s. 10(b) rights, rather than read it off a card that is printed in every officer’s police notebook.
[140] I should add that, if the breach of the informational component of the s. 10(b) right in this case stood alone, and had I not also found breaches of the implementational duty, I might well have found that the breach of the informational duty was mitigated by Mr. Azonwanna subsequently speaking to duty counsel (in this case, no issue was raised regarding counsel of choice). But in light of the implementational breaches I find, outlined below, in my view the breach with respect to the informational duty at the outset is an aggravating factor in the seriousness of the breaches.
[141] I turn then to the breaches of the implementational duty.
(ii) Breach of implementational duty to offer further consultation with counsel based on objective circumstances showing Mr. Azonwanna did not understand various of his rights after he spoke to counsel
[142] As is clear from the facts above, Mr. Azonwanna was provided with the opportunity to speak to duty counsel prior to the start of the videotaped interview, and no effort was made to elicit statements from him prior to that time. Thus, no issue is raised by the defence regarding the initial implementation of the right to counsel. The issue is whether circumstances occurred during the videotaped interview that imposed a duty on the police to offer Mr. Azonwanna an opportunity to consult with counsel again. I find that they did, in two ways.
[143] Sinclair sets out a number of circumstances where the implementational duty imposed by s. 10(b) requires that police offer a detainee a further opportunity to speak to counsel after the initial consultation. The two circumstances that are relevant to this case are the following: (i) where circumstances indicate that a detainee may not have understood his initial s. 10(b) advice from consultation with counsel (and as I will discuss below, the related concern of police undermining or distorting the advice from counsel); and, (ii) the invocation by police of non-routine procedures like participation in a line-up, or submitting to a polygraph. Either of these circumstances imposes a duty on police to offer a detainee a further opportunity to consult with counsel: Sinclair at paras. 50, 52. In both of these circumstances, the concern is that circumstances exist which have the effect that the initial advice from counsel may no longer be adequate, and a further consultation with counsel is necessary to ensure the detainee has meaningful advice when they make the decision whether or not to cooperate with police.
[144] I find that Detective Thomas breached Mr. Azonwanna’s s. 10(b) rights when it became clear near the start of the interview that Mr. Azonwanna did not understand various of his constitutional rights, and rather than provide him with a further opportunity to consult with counsel, Detective Thomas proceeded to give him advice on the rights himself. It was advice which I find was incomplete, and in some ways incorrect and misleading. As this was early in the interview, the breach impacts the entire statement.
[145] As I have set out above at paras. 69-71, 75-77, early in the statement, Detective Thomas informed Mr. Azonwanna of various of his rights (s. 10(b), and the right to silence as exemplified by the primary and secondary cautions). On four occasions, after Detective Thomas read or said the initial statement of the right, Mr. Azonwanna said something which clearly showed that he did not understand his rights. Either he said expressly that he did not understand (“I’m confused a bit”, “I don’t know” – see paras. 70-71 above). Or he gave an explanation of what he thought his rights meant that showed that he did not understand an aspect of his rights (paras. 75-77).
[146] Rather than provide Mr. Azonwanna with a second call with duty counsel, Detective Thomas took it upon himself to explain the rights, and effectively to give legal advice to Mr. Azonwanna.
[147] Sinclair is clear that where there is objectively reason to question a detainee’s understanding of his s. 10(b) rights, a duty is imposed on the police to give the detainee a further opportunity to speak to counsel: Sinclair at para. 52. This principle in Sinclair must also apply to a situation where there is objectively reason to question a detainee’s understanding of associated rights, such as the right to silence.
[148] Further, there were aspects of Detective Thomas’ explanation of Mr. Azonwanna’s rights that that are misleading. I refer in particular to the portion excerpted above at the end of para. 71 in relation to the primary caution and the right to silence, in particular, the statements: “It means … you have the right to, to speak”, and “And what that means is that it can be presented in your own defence” (emphasis added). Focussing on “the right to speak” as Detective Thomas did, misses the central aspect of the right to silence, the right not to speak. Further, as I have outlined above, the advice that anything Mr. Azonwanna said in the interview “can be presented in your own defence” is misleading and incomplete. Only in very limited circumstances can a defendant present their (exculpatory) statement to police (or portions of it) in their own defence, because normally it would be considered to be self-serving hearsay evidence.
[149] Although I accept that Detective Sinclair was not intentionally trying to misconstrue Mr. Azonwanna’s legal rights here, he did misconstrue them. This also raises the concern of undermining a detainee’s legal advice raised in R. v. Burlingham, [1995] 2 S.C.R. 206, 1995 CanLII 88, and cited at para. 52 of Sinclair. I find that the fact that Detective Thomas misconstrued the right to silence in his explanation undermined whatever advice Mr. Azonwanna was given by duty counsel. This provides additional support for the conclusion that he was required to offer a further opportunity for Mr. Azonwanna to consult counsel. I am not suggesting that Detective Thomas denigrated the role of counsel as was done in Burlingham. But in providing explanation of rights to Mr. Azonwanna himself, rather than offering for Mr. Azonwanna to consult counsel again, and in providing advice that contained errors regarding the primary caution (i.e., the right to silence) contained errors, and in my view was certainly less complete than what a competent defence counsel would have provided, the effect was to undermine Mr. Azonwanna’s s. 10(b) right to receive legal advice from counsel.
[150] Detective Thomas testified in examination-in-chief, and in cross-examination, that if Mr. Azonwanna had expressed that he was not satisfied with the advice of duty counsel or expressed concern with the particular duty counsel he had spoken to, he would have stopped the interview, and offered Mr. Azonwanna a further opportunity to speak to duty counsel. (Detective Thomas also said he would have allowed a further consultation with duty counsel if there was a change in jeopardy, but that is not relevant to the issues before me).
[151] As I have outlined above, I have concerns about the credibility of aspects of Detective Thomas’ evidence about his subjective motivations and intentions during taking the statement. Thus, I hesitate to accept at face value his assertion of what he hypothetically would have done if Mr. Azonwanna had expressed that he was not satisfied with the advice from duty counsel. But, accepting for the sake of argument that Detective Thomas would have offered Mr. Azonwanna a further opportunity to consult with counsel if he had said he was not satisfied with the advice of duty counsel, this is not a complete account of when a further opportunity to consult with counsel must be offered if a detainee does not understand his rights. The right to a further opportunity to consult with counsel outlined at para. 52 of Sinclair is not limited to circumstances where a detainee expressly states that he is not satisfied with the advice of duty counsel. Rather, any “circumstances that indicate that the detainee may not have understood the initial s. 10(b) advice of his right to counsel impose on the police a duty to give him a further opportunity to talk to a lawyer” (Sinclair at para. 52).
[152] I find that in the portions of the interview summarized above at paras. 69-71, 75-77, when Mr. Azonwanna clearly said he did not understand the right to counsel, did not understand the cautions (i.e., a central aspect of the right to silence), and did not understand something he was told about his rights in regard to bail, these were circumstances that clearly objectively showed he did not understand various of his rights after his consultation with counsel. This gave rise to a duty for Detective Thomas to offer him another opportunity to consult with counsel. It was not appropriate for Detective Thomas to substitute giving his own explanation of Mr. Azonwanna’s rights for an opportunity to consult with counsel.
[153] I accept that functionally, to some extent, the police duty to ensure a detainee understands the informational component of his rights may partially overlap with what a lawyer giving legal advice may tell a detainee. Indeed, Detective Thomas gave answers in cross-examination that he was just explaining Mr. Azonwanna’s rights to him in plain language, and he believed that was permitted. The difficulty here is that normally the informational component provided by police comes before the detainee speaks to counsel. If a detainee then speaks to counsel, if there are no indications of the detainee not understanding the advice, the obligation to offer a further consultation based on lack of understanding does not arise.
[154] But this case is different. In this case, after Mr. Azonwanna had spoken to counsel, Detective Thomas chose to inquire about his understanding of his rights. That questioning in itself was not problematic. But when that questioning revealed that after speaking to duty counsel, Mr. Azonwanna still did not understand his rights, the principles in Sinclair required that Detective Thomas provide Mr. Azonwanna with a further opportunity to speak to duty counsel. Explanation by a police officer cannot substitute for this aspect of the s. 10(b) right to counsel.
[155] For these reasons, I find that Detective Thomas breached Mr. Azonwanna’s s. 10(b) rights when he did not offer him a further opportunity to consult with counsel, when Mr. Azonwanna repeatedly expressed a lack of understanding of his rights after he had spoken to duty counsel.
(iii) Breach of implementational duty to offer a further opportunity to consult with counsel when a new or non-routine procedural step is invoked by police
[156] I find that Detective Thomas committed a further breach of Mr. Azonwanna’s s. 10(b) rights when he did not offer him a further opportunity to consult with counsel when he requested Mr. Azonwanna’s phone password. I find that in the circumstances of this case, the request to obtain Mr. Azonwanna’s phone password constituted they type of new procedural step that required providing Mr. Azonwanna with a further opportunity to consult with counsel. Failing to give Mr. Azonwanna a further opportunity to consult with counsel when asking for his cell phone password breached his s. 10(b) rights. I make this finding based on it being a non-routine procedure of the type envisaged by Sinclair at para. 50 (and paras. 53-55).
[157] I come to the conclusion that the police asking for a cell phone password is a type of non-routine procedure that imposes a duty on the police to offer a detainee a further opportunity to consult with counsel for two reasons: first, the high privacy interest in the type of information that most people routinely keep on their electronic devices; and second, that providing a cell phone password conscripts a detainee to provide evidence against himself in circumstances where the police could not obtain evidence of similar quality without the participation of the detainee. I will explain each factor.
[158] First, the Supreme Court has repeatedly held that there is a high privacy interest in the type of information that most people routinely keep on their electronic devices, including cell phones: R. v. Vu, [2013] 3 S.C.R. 657, 2013 SCC 60, at para. 38; R. v. Reeves, [2018] 3 S.C.R. 531, 2018 SCC 56, at para. 34; R. v. Marakah, [2017] 2 S.C.R. 608, 2017 SCC 59, at paras. 28-37; R. v. Fearon, [2014] 3 S.C.R. 621, 2014 SCC 77, at paras. 50-52; R. v. Morelli, [2010] 1 S.C.R. 253, 2010 SCC 8, at para. 105.
[159] I accept that asking for a phone password is not the same as a consent search (if a search warrant is obtained before the phone’s contents are accessed). However, in my view, in circumstances where the police would not be able to access the phone contents without the password, the high privacy interest in the contents supports that being asked to give the police a cell phone password makes it an act that is qualitatively difference than other statements. Providing a cell phone password has such significant impact on the right to privacy that it supports a right to a further consultation with counsel before being asked to make the choice whether to voluntarily provide it.
[160] This brings me to my second reason for finding that asking for a cell phone password is a non-routine procedure that requires an offer of a further consultation with counsel, which is that it conscripts a detainee to provide evidence against himself that would not be accessible to the police absent the conscripting of the detainee.
[161] As I have noted, I accept that obtaining a cell phone password from a detainee is not itself a consent search, if a search warrant is obtained prior to accessing the contents of the electronic device (as was done in this case). It is not a consent search if a search warrant is obtained prior to accessing the contents, because there is judicial authorization. However, on the record before me, the line between asking the cell phone password (without a further opportunity to consult with counsel), and a consent search is very thin, because as a practical matter, the police would not be able to access the cell phone without obtaining the password from the defendant. They could get a search warrant (there is no question in this case there was reasonable and probable grounds to support the search warrant for the phone), but absent the defendant giving the password, the police would have been unable to access the contents of the phone. Without the participation of the detainee, the search warrant is useless. In my view, this reality makes asking for a cell phone password very different from other aspects of an interview. In my view, although as a technical matter this case does not involve a consent search of the phone, the request for the password raises many of the same concerns outlined in R. v. Wills (1992), 70 C.C.C. (3d) 529, 1992 CanLII 2780 (ONCA), in terms of the need for legal advice in order to make the choice to cooperate a meaningful one.
[162] In this way, asking a detainee for the password to a cell phone is akin to the participation in a line-up considered in R. v. Ross, [1989] 1 S.C.R. 3, 1989 CanLII 134, at pp. 12-17, and cited with approval at para. 50 of Sinclair. The line-up situation discussed in Ross has two important similarities to asking for a cell phone password.
[163] First, a detainee is not required to participate in a line-up, just as a detainee is not required to provide his cell phone password. Thus, like a line-up, counsel has an important role in advising a detainee about the choice to voluntarily provide a phone password.
[164] Second, participating in a line-up, like providing a cell phone password, conscripts a detainee to assist the police in obtaining evidence of a value that the police would be unable to obtain absent the detainee’s participation. As explained in Ross, because of the procedural protections in a line-up, if a detainee participates in a line-up (and if they are identified by a witness), the police obtain much stronger evidence through the detainee’s participation, than they would if, for example, they walked the witness through the booking room where the detainee was standing by himself (which could be done without the detainee’s participation). Similarly, in this case, the police could obtain a warrant to search the phone whether or not Mr. Azonwanna cooperated by providing the password, but without Mr. Azonwanna providing the password, they would not be able to access the contents of the phone.
[165] Crown counsel argues that there was not an obligation on Detective Thomas to offer Mr. Azonwanna a further opportunity to consult with counsel when he asked for the phone password because Mr. Azonwanna already knew the importance of the contents of the phone to the investigation. He had been told at the outset that one of the charges related to child pornography, and the police had seized his phone. She submits that this is evident from Mr. Azonwanna’s first response when Detective Thomas asks for the password, saying that duty counsel told him not to give it out (interview transcript p. 342).
[166] I have carefully considered this argument. There is some force to it, in the sense that because the right to a further opportunity to consult with counsel is based on new circumstances arising or being disclosed (as outlined in Sinclair), if Mr. Azonwanna had already been given legal advice by duty counsel not to provide his phone password, this would at first blush appear to lessen the force of the claim of a need for a further consultation with counsel. I pause to note that this area is somewhat difficult, because in this portion of the transcript, Detective Thomas elicits – probably unintentionally – information covered by solicitor-client privilege, by asking Mr. Azonwanna to explain an earlier answer that he would get in trouble if he gives the password.
[167] However, in the circumstances of this case, I reject this argument by Crown counsel. First, at the time Mr. Azonwanna spoke to duty counsel, he had not yet been told by Detective Thomas, or anyone else, that the complainant was 17 years old. He had been told he was under arrest for three charges, including child pornography. But he was not told anything concrete in relation to the child pornography charge. Thus, on the record before me, at best, one can understand the assertion by Mr. Azonwanna at p. 342 that duty counsel told him not to give his phone password to police as a bald piece of advice, not addressed to any of the particular context that Detective Thomas had just provided three hours into the interview.
[168] In this context, I find that the police decision to intentionally limit the amount of information Mr. Azonwanna received prior to the interview is a relevant factor in assessing the issue of the right to re-consult with counsel. I want to be clear, I am not holding that it is a breach of the Charter in itself for police to limit the amount of information they provide a detainee at the time of arrest (so long as sufficient information is provided to comply with s. 10(a) – and no s. 10(a) issue was raised in this case). However, where police make the tactical choice to limit the amount of information they provide to a detainee, it may leave them in a situation, as in this case, where a court will more readily accept the claim of a defendant that they had a right to re-consult with counsel.
[169] Further, within minutes of Mr. Azonwanna saying that duty counsel told him not to give the phone password, Detective Thomas makes the statements about giving the password discussed above at paras. 82-84, 125-131. As I have outlined above, these statements by Detective Thomas would reasonably be understood as saying, if you don’t give me the phone password, you will face more charges, and if you do give me the phone password, I will take the fellatio video off your phone and that will resolve the child pornography aspect of the allegations.
[170] Even accepting, based on Mr. Azonwanna’s comment at p. 342, that duty counsel told him in a blanket way not to give his phone password to police, these representations by Detective Thomas introduced a new element in terms of the implications of giving or not giving the phone password. I find that these new representations by Detective Thomas, since they were a misleading inducement to provide the password, had the effect of undermining whatever general advice about the phone password duty counsel had given Mr. Azonwanna four hours previously.
[171] In light of the implications of providing the phone password I have outlined above, and the representations by Detective Thomas about the implications of giving or not giving the phone password, Mr. Azonwanna was entitled to a further opportunity to consult counsel before deciding whether or not to provide the password.
[172] Detective Thomas testified in cross-examination that he did not believe it was necessary to allow Mr. Azonwanna to reconsult with counsel prior to asking for his phone password because he did not believe it was a consent search, and he did not believe asking for a password (as distinct from a consent search) required offering an opportunity to consult again with counsel.
[173] As I have explained, I agree that asking for the password is not itself a consent search, if a search of the contents of a phone is not done prior to obtaining a search warrant. In the event, in this case, a search warrant was obtained before the contents of the phone were searched using the password. However, as I have explained, I find that given the significant privacy interest in the contents of a cell phone, and the fact that obtaining the password from a defendant to their phone conscripts a detainee to participate in the obtaining of evidence against themself of significantly stronger value than what would be available to the police without the detainee’s participation, asking for a detainee’s cell phone password falls within the exception in para. 50 of Sinclair where police invoke a non-routine procedure.
[174] For these reasons, I find that Detective Thomas breached Mr. Azonwanna’s s. 10(b) rights when he failed to offer him an opportunity for a further consultation with counsel when he asked him for his cell phone password.
Did the manner in which the phone password was obtained infringe Mr. Azonwanna’s s. 8 Charter rights?
[175] In light of my findings regarding voluntariness and ss. 7 and 10(b) of the Charter, it is not necessary for me to rule on the defence s. 8 Charter argument.
Impact of the finding that voluntariness has not been proven, and s. 24(2) analysis
[176] Having found that the Crown has failed to prove beyond a reasonable doubt that the statement is voluntary, it is not strictly speaking necessary for me to consider s. 24(2) in relation to the statement. Because the statement is not voluntary, it is not admissible, nor are the fruits of the statement admissible (the contents of the cell phone obtained by Mr. Azonwanna giving his phone password in an involuntary statement).
[177] However, I consider s. 24(2) for completeness in relation to the Charter breaches I have found, and also in relation to the contents of the phone, in particular the video and other information taken off the phone.
[178] There is no question that the content of the statement is evidence obtained in a manner that infringed the Charter. It is causally, contextually, and temporally closely linked to the Charter breaches I have found.
[179] I also find that the evidence found in the search of the phone, in particular the video, is also evidence obtained in a manner that infringed the Charter. It is causally, contextually and temporally linked to the Charter breaches, and in particular the breaches that led to the obtaining of the phone password from the defendant. I find on the evidence before me, that the obtaining of the evidence on the phone was causally linked to the Charter breaches involved in obtaining the phone password because on the evidence before me it is clear that the contents of the phone were not discoverable unless the defendant gave the police the password. The various officers, in particular Detective Vadivelu, were clear that the technology that existed at the time made it necessary for the police to either seize the phone unlocked, or get the password from Mr. Azonwanna, in order to access its contents. It is uncontested on the evidence before the court that they did not manage to seize the phone unlocked. So, without getting the password from Mr. Azonwanna, the police would not have been able to access the content of the phone.
[180] The analysis under s. 24(2) pursuant to the Supreme Court of Canada decision in R. v. Grant, [2009] 2 S.C.R. 353, 2009 SCC 32, requires me to consider the following factors in assessing whether in all the circumstances, admission of the physical evidence would bring the administration of justice into disrepute: first, the seriousness of the Charter-infringing state conduct; second, the impact of the breach on the Charter-protected interests of the defendants; and third, the societal interest in a trial on the merits: Grant at paragraphs 71-98, 112-115.
[181] The seriousness of the breach inquiry requires the court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending the message that the courts condone state conduct in breach of the Charter by refusing to disassociate themselves from the products of that conduct. The more serious or deliberate the conduct, the greater the need for the courts to dissociate themselves from it in order to preserve public confidence in the justice system and the rule of law: Grant at paragraphs 72-75.
[182] The second branch of the Grant analysis focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the defendant, and the extent to which the breach actually undermined the interests the right at issue is designed to protect. The more serious the impact on the defendant, the more strongly this factor will weigh in favour of exclusion: Grant at paragraphs 76-78.
[183] The third branch of the Grant analysis requires the court to consider the societal interest in a trial on the merits. Admission of reliable physical evidence may be more likely to support the societal interest in the truth-seeking function of a trial that will admission of a statement: Grant at paras. 79-84; 89-98; 112-115.
[184] At the same time, I must consider the important societal interest in protection of the Charter rights of individuals and in ensuring that the police respect Charter rights in carrying out their duties: Grant at paragraphs 79-84. In the case of a serious Charter breach, the long terms impact on the administration of justice may favour exclusion of evidence.
(i) The Seriousness of the breaches
[185] I find that the Charter breaches in this case, taken together, are serious.
[186] The purpose of the right to counsel is to allow a person under arrest or detention to obtain legal advice in order to permit them to make informed choices about how to exercise their rights: Grant at para. 95; Sinclair at paras. 24-26; Taylor at para. 21. Similarly, the right to silence protected by s. 7, including the right not to be induced by oppressive circumstances or inducements to give up the right to silence, is a fundamental protection to individuals in custody. The purpose of the right to silence, in the context of a custodial interview, is to prevent a defendant from being involuntarily conscripted by the state to create or provide evidence against themself: Singh at para. 21. These are fundamental protections for people placed under arrest an held in custody.
[187] I find that significant aspects of the Charter breaches in this case were not made in good faith. They occurred either with a lack of care that prevents a finding of good faith, or occurred in the face of well-established Charter standards: Grant at para. 75; R. v. Le, 2019 SCC 34 at paras. 143-147; R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30, at para. 59.
[188] In terms of lack of care, the informational breach in relation to s. 10(b) committed by Detective Patel resulted from a lack of care about Charter rights. Detective Patel went to the airport intending to effect the arrest of Mr. Azonwanna, and in circumstances where extensive planning went into the arrest. He ought to have planned to provide the informational component of the right to counsel fully by bringing with him the written version available to Toronto Police Service officers in their memo book.
[189] I find that the failure of Detective Thomas to officer Mr. Azonwanna a further opportunity to consult with counsel when Mr. Azonwanna clearly expressed a lack of understanding about several aspects of his rights after he had spoken to duty counsel, and near the beginning of the interview, was also not in good faith, because what occurred was in breach of law that is well-established, at least since Sinclair in 2010. The law is clear that where circumstances exist that objectively show a detainee may not have understood his initial legal advice, the police have a duty to offer a further consultation with counsel. As I have explained above, Mr. Azonwanna clearly expressed that he did not understand various aspects of his rights after he spoke to duty counsel. I find that Detective Thomas was clearly aware of the lack of understanding, because he went on each time to provide further explanation to Mr. Azonwanna. In these circumstances. Detective Thomas’ failure to offer Mr. Azonwanna a further opportunity to consult with counsel cannot be said to have been in good faith.
[190] With respect to the later s. 10(b) breach of Detective Thomas not offering Mr. Azonwanna a further opportunity to consult with counsel when he asked for the cell phone password, I accept that the law may have been less clear to Detective Thomas about whether that step required an opportunity to reconsult with counsel. But for other reasons I find that the s. 7 breach at that time was also not in good faith, in particular because of the inducements made to Mr. Azonwanna. The inducement that Detective Thomas made to Mr. Azonwanna in relation to obtaining the password – and which I find clearly led Mr. Azonwanna to provide the password – is a significant aggravating circumstance in terms of the seriousness of the breach.
[191] A further reasons that I find the breaches to be serious is because there was not just one Charter breach, but were a series of interrelated Charter breaches.
[192] Finally, I find that Detective Thomas’ lack of candour in some aspects of his evidence is a factor that aggravates the breaches. However, I do not find it to be an overwhelming factor in this case, since the objective video evidence of the interview speaks for itself.
[193] In this case, there were no extenuating circumstances of the kind discussed at para. 75 of Grant. The phone had already been seized by the police at the time Mr. Azonwanna’s videotaped interview was conducted. There was no urgency that prevented the ability of the police to give Mr. Azonwanna a further opportunity to consult with counsel, either near the start of the interview, when he expressed a lack of understanding of various aspects of his rights after having spoken to duty counsel, or later in the interview when he was asked to provide the password for the phone.
[194] For these reasons, I find that the first branch of the Grant analysis favours exclusion.
(ii) The Impact of the breaches on Mr. Azonwanna’s Charter-protected interests
[195] I find that impact of the breaches of Mr. Azonwanna’s Charter-protected interests was significant. The statement is self-incriminatory evidence. Grant is clear that apart from the different considerations that apply to bodily samples, the admission of self-incriminatory evidence will usually bring the administration of justice into disrepute. The interest of a detainee in not being compelled to incriminate themself is a vital one in our criminal justice system: Grant at paras. 77, 88-98. That interest was significantly impacted in this case.
[196] The analysis that applies to the contents of the cell phone, physical evidence, is different, but still leads to the conclusion in this case that the breaches had a serious impact on Mr. Azonwanna’s Charter protected interests. Sometimes the impact of a Charter breach will be less serious when what is obtained as a result of the breach is reliable physical evidence. But that is not always so. Where the physical evidence was not discoverable absent the Charter breach, and particularly where the Charter breach is linked to self-incrimination, then a breach which leads to the finding of physical evidence will still have a serious impact: Grant at paras. 119-127.
[197] As I have outlined in my factual findings above, the record is clear in this case that the contents of the cell phone were not discoverable absent Mr. Azonwanna giving the police his cell phone password, once the phone was seized in locked mode. Thus, the finding of the evidence on the cell phone significantly compromised Mr. Azonwanna’s Charter protected interest against self-incrimination. Absent the breaches of s. 7 and s. 10(b) which led to the police obtaining the cell phone password, the police would not have been able to access the contents of the cell phone. For these reasons, I also find that the impact of the breaches in terms of the obtaining of the contents of the cell phone was serious.
[198] Lastly, although the breaches I have found are under ss. 7 and 10(b) of the Charter, and I have note ruled on Mr. Azonwanna’s claim that his s. 8 rights were violated, I find that the fact that the ss. 7 and 10(b) breaches allowed the police to obtain Mr. Azonwanna’s cell phone password and to access private information on his cell phone is a factor that aggravates the seriousness of the Charter breaches. As I have outlined above, the Supreme Court has repeatedly emphasized the significant privacy interest in the type of information that can be kept on electronic devices.
(iii) The societal interest in a trial on the merits
[199] There is always a societal interest in criminal charges being tried on the merits, and all relevant evidence being brought to bear in that trial. But the policy of our justice system and the Charter does not pursue that interest at any cost. Where Charter breaches are serious, and where the impact of the breaches on a defendant is significant, the third factor will rarely favour admissibility: R. v. McGuffie, 2016 ONCA 365 at paras. 60-64.
[200] In this case, I find that the concerns expressed in McGuffie are especially strong because the Charter interests affected by the breach involve the right to silence and the protection against self-incrimination.
[201] Further, this is not a case where a trial on the merits would be unable to proceed at all if the statement and the contents of the cell phone are excluded as evidence in the trial. The primary evidence in the Crown’s case is the complainant’s testimony.
[202] Balancing the three Grant factors together, I find that the admission of Mr. Azonwanna’s statement to police, and the contents of the phone into evidence would bring the administration of justice into disrepute. I find that the long-term negative impact on the administration of justice of admitting this conscripted evidence obtained in violation of the Charter would be significant. I exclude the statement and the contents of the phone from evidence pursuant to s. 24(2) of the Charter.
[203] I reiterate my thanks to both counsel for their assistance throughout the trial, and for the high level of collegiality they showed towards each other.
Justice J. Copeland
Released: September 11, 2020
COURT FILE NO.: CR-17-10000820-0000
DATE: 20200911
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ANDRE AZONWANNA
REASONS FOR DECISION ON
VOLUNTARINESS AND CHARTER VOIR DIRE
Justice J. Copeland
Released: September 11, 2020
[^1]: Detective Patterson also testified that later, when she was taking notes as Detective Thomas interviewed Mr. Azonwanna, Detective Thomas asked her to try the phone password that Mr. Azonwanna provided late in the interview in order to see if it worked. She tried it, and it worked. But she did not search the contents of the phone at that time. She then submitted the phone to property (pending obtaining a search warrant).
[^2]: I note than adverse findings of credibility about a police witness in a Charter voir dire may have relevance under s. 24(2). I address that issue below in my s. 24(2) analysis.