COURT FILE NO.: 18-5176

DATE: 2021/07/27

ONTARIO SUPERIOR COURT OF JUSTICE

RULING ON SECTION 10(B) CHARTER APPLICATION

N. SOMJI J.

Overview

[1] The Applicant, Salam Fadhil, stands charged with co-accused, Mahmood Ahmad, on one count of sexual assault. The trial commenced before me on January 7, 2021, and is scheduled to resume in August 2021. This ruling addresses a s. 10(b) Charter application brought mid-trial.

[2] Mr. Fadhil gave an audio-recorded statement to the police on December 7, 2018 (“statement”). I ruled that the statement was voluntary and admissible: R. v. Ahmad, 2021 ONSC 1559. After the start of the voluntariness voir dire and upon hearing the evidence of the lead investigator, counsel for Mr. Fadhil sought leave to bring a s.10(b) Charter application on the grounds that Mr. Fadhil was not given his right to counsel of choice. The Crown had not anticipated this application and did not receive notice prior to trial. I granted leave to bring the late Charter application: R. v. Ahmad, 2021 ONSC 1564.

[3] Mr. Fadhil spoke to counsel prior to making the statement. He argues that his constitutional right to counsel was nonetheless violated because he did not have the opportunity to speak to counsel of his choice. The primary issue in this motion is whether under s. 10(b), the officer had a duty to inform Mr. Fadhil that he had the option to wait and speak to his counsel of choice.

[4] I find Mr. Fadhil’s right to counsel was not breached. The evidence establishes that Mr. Fadhil understood his right to counsel and exercised it. When Mr. Addelman was not available, he spoke to Mr. Gilbert, another counsel in the firm. Mr. Fadhil expressed no dissatisfaction with the consultation and on the contrary, indicated to the officer he was satisfied with the exercise of his right to counsel. Mr. Fadhil was not diligent in asserting a right to counsel of choice at the time. The officer did not have an additional information duty in these circumstances. Furthermore, Mr. Fadhil did not testify at the voir dire to suggest that he misunderstood his rights or that he believed his only option was to speak to Mr. Gilbert. The s. 10(b) application is dismissed.

[5] All further references to 10(b) refer to the Charter.

Facts Relating to the Issue

[6] Both the Crown and the Applicant rely on the evidence tendered in the voluntariness voir dire. That evidence consisted of the testimony of the Detectives Dompierre and Riopel. It is set out in in the voluntariness ruling in Ahmad and need not be repeated here.

[7] For the purposes of this ruling, I rely on and highlight the following facts:

➢ Det. Dompierre called Mr. Fadhil on December 6, 2018, at 4 p.m. and asked him to turn himself the following day at 9:00 a.m. regarding a sexual assault charge. Mr. Fadhil agreed. Det. Dompierre told Mr. Fadhil that he had a right to contact a lawyer over the telephone and stated that Mr. Fadhil understood this.

➢ Mr. Fadhil attended the police detachment the next day. Det. Dompierre arrested him and gave him his right to counsel from a card. Det. Dompierre did not take notes of Fadhil’s individual responses in his duty book but indicated in his Investigation Report that Mr. Fadhil understood.

➢ Det. Riopel was present at the time of the arrest and when the rights were read. He testified that Mr. Fadhil appeared to understand all the instructions including his own when he conducted a pat down search.

➢ Mr. Fadhil was taken to an interview room where everything was video recorded.

➢ Det. Dompierre provided Mr. Fadhil his right to counsel again. He asked Mr. Fadhil if he had contacted a lawyer. Mr. Fadhil indicated he had not spoken to counsel and wished to speak one. Mr. Fadhil told Det. Dompierre that he has the name of a lawyer Joe Addelman and that the number was on his phone.

➢ Det. Dompierre said he would go get the number from the phone. Det. Dompierre exited the room and returned 3 minutes later. Both the officer and Mr. Fadhil then exited the interview room. They both returned about 15 minutes later.

➢ Their interaction while outside the interview room was not recorded.

➢ Det. Dompierre could not recall where he got the number from but did call Joe Addelman’s law firm. The receptionist informed him that Mr. Addelman was not available, but that another counsel Jason Gilbert was free to speak with Mr. Fadhil.

➢ Det. Dompierre asked Mr. Fadhil if he wished to speak with Mr. Gilbert and he agreed.

➢ Det. Dompierre testified that Mr. Fadhil spoke to Mr. Gilbert privately from 9:39 a.m. to 9:45 a.m.

➢ Upon returning to the interview room, Det. Dompierre reviewed with Mr. Fadhil what had transpired outside the interview room. He asked Mr. Fadhil if he was satisfied with his right to counsel as provided to him and Mr. Fadhil stated he was.

➢ Det. Dompierre then proceeded to interview Mr. Fadhil.

[8] Mr. Fadhil did not testify in either the voluntariness or the 10(b) voir dires.

Position of the Parties

Applicant

[9] Mr. Fadhil argues that under s. 10(b), an accused has a right to not only speak to counsel, but to counsel of his choice. Mr. Fadhil argues that Det. Dompierre failed to inquire with the law firm when Mr. Addelman would be available and asking him if he wished to wait to speak to Mr. Addelman. Counsel for Mr. Fadhil argues that Mr. Fadhil cannot be faulted for failing to wait to speak to Mr. Addelman if he did not know that he had that option. Counsel argues that s. 10(b) requires an officer to provide information that allows an accused to make an informed choice about waiving his right to counsel of choice which was not done here.

Crown

[10] The Crown argues that Mr. Fadhil was informed of and exercised his right to counsel. When his own counsel was not available, he was offered a choice to speak to another counsel in the firm and he chose to do so. Following the conversation, Det. Dompierre asked him if he was satisfied with his right to counsel, and he confirmed with the officer that he was.

[11] Mr. Fadhil did not express to Det. Dompierre that he wished to wait and speak to Joe Addelman. He would have been able to canvass this both with Mr. Gilbert while talking to him and with Det. Dompierre following the call. In short, he was not diligent in asserting his right to counsel of choice which is a necessary component of the analysis under 10(b). Furthermore, Mr. Fadhil did not testify in the voir dire that he did not understand his right to counsel including a right to counsel of choice. The onus is on Mr. Fadhil to establish a breach of his right to counsel under s. 10(b) and he has failed to do so.

Analysis

[12] The onus is on the accused to establish on a balance of probabilities a s. 10(b) breach and that, because of the breach, his statement should be excluded under s. 24(2) of the Charter: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265.

[13] Under s. 10(b), a person has the right to counsel upon arrest or detention. This can include the right to retain counsel of choice. However, if the lawyer chosen is not available within a reasonable time, a detainee should be expected to exercise the right to counsel by calling another lawyer: R. v. Brydges 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190 at para. 24; R. v. Willier 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 32 to 35. This is because one of the main purposes of 10(b) is to facilitate access to counsel so that an accused person can obtain immediate legal advice upon arrest and detention regarding their rights, including the right to remain silent: Willier at para. 38.

[14] The failure to speak to counsel of choice does not necessarily result in a 10(b) breach. A detainee must be reasonably diligent in the exercise of their right to counsel of choice: Willier at para 42. For example, an accused is not entitled to express satisfaction with his consultation with counsel, remain silent in the face of offers from the police for further contact with counsel, remain

silent in the voir dire as to the alleged inadequacies of the actual legal advice received, and then seek a finding that the advice was inadequate because of its brevity: Willier at para. 42.

[15] The principle of diligence is not new. It was emphasized by Ontario Court of Appeal in 2001 in R. v. Littleford, 2001 CanLII 8559. In Littleford, the accused wanted to speak to his own lawyer. The officer called and left a message. When counsel could not be reached, the officer asked him if he wished to speak to duty counsel. The accused was reluctant but agreed. Following the call, the accused did not raise any issue or express dissatisfaction to the officer. The officer testified that he did not help the accused further with contacting counsel of choice. The Court of Appeal found no s. 10(b) breach in these circumstances given the accused had not raised concerns at the time and did not testify that he had misunderstood his rights: Littleford at paras. 9 and 10

[16] I find that Mr. Fadhil’s 10(b) right to counsel was not violated for the following reasons.

[17] First, the evidence establishes that Mr. Fadhil understood his right to counsel. Det. Dompierre testified he advised Mr. Fadhil of his right to contact a lawyer the night before when he spoke to him on the telephone. Mr. Fadhil attended the detachment the next day with the name and number of a counsel, Joe Addelman, on his phone.

[18] Second, Mr. Fadhil exercised his right to counsel and spoke to Counsel Jason Gilbert. This is not a situation where Mr. Fadhil did not have the opportunity to speak to anyone about his arrest, charges, legal rights, or prospective interview with the police.

[19] Third, following the call with Mr. Gilbert, Mr. Fadhil did not raise any concerns with Det. Dompierre, did not express any dissatisfaction with his consultation, and did not indicate a continued desire to speak with Mr. Addelman. I find the accused was not reasonably diligent in asserting his right to counsel of choice and the evidence does not establish that he misunderstood his rights.

[20] Counsel for Mr. Fadhil argues that Mr. Fadhil cannot be faulted for failing to assert a right to wait and speak to counsel of choice because he was not informed of this option. However, I do not find that the caselaw imposes an additional informational duty on officers in these circumstances. When a detainee has been diligent, but unsuccessful, in contacting counsel of

choice, and subsequently declines any opportunity to consult with other counsel, the police have an additional informational duty to explicitly inform the detainee of their right to a reasonable opportunity to contact counsel and hold off questioning until the reasonable opportunity is over or counsel is contacted: Willier at para. 38. This is commonly referred to as a Prosper warning. However, where a detainee cannot contact counsel of choice but chooses to speak with another lawyer – either duty counsel, Legal Aid counsel, or another lawyer - a Prosper warning is not required: Willier at para. 39.

[21] This was the case here. Mr. Fadhil was informed and did exercise his right to counsel. While he was unsuccessful in reaching Mr. Addelman, he spoke to another counsel in the firm and expressed no dissatisfaction with that consultation or that he wished to speak additionally with Mr. Addelman. I find that in these circumstances, the caselaw does not support an additional informational duty on an officer to provide a Prosper warning and to refrain from questioning: Willier at paras. 38 and 39.

[22] Mr. Fadhil’s counsel cites several decisions post-Willier where courts have found a breach of the 10(b) when the accused did not speak to counsel of choice. However, these decisions are distinguishable on their facts because:

➢ the accused testified at the voir dire that he failed to understand that he had an option to wait speak to counsel of choice: R. v. Vernon 2015 ONSC 3943 at paras. 9 and 45; R. v. Manuel 2018 ONCJ 381 at paras. 34 and 43;

➢ The accused did not speak to any counsel, and not enough was done to facilitate the accused contacting counsel of choice: R. v. Maciel 2016 ONCJ 563 at paras. 15-16 and 22 to 24;

➢ The circumstances required a Prosper warning which was not given: R. v. Delaney 2014 ONCJ 83 at paras. 20 and 29; or

➢ There was a repeated request to speak to counsel of choice and the decision to call duty counsel was influenced by the police’s own views of the adequacy of counsel of choice rather than the accused’s wishes: R. v. Lewis 2019 ONSC 5919 at paras. 41, 42 and 44; R.

v. Randle 2018 ONCJ 180 at paras. 109 to 113.

[23] This was not the situation here. Det. Dompierre did contact Mr. Addelman’s firm. When told he was unavailable, he asked Mr. Fadhil if he wished to speak to Mr. Gilbert instead. The officer did not influence that choice. He relayed an offer made by the law firm. Mr. Fadhil agreed

to and did speak to Mr. Gilbert. There was no need for a Prosper warning. Upon returning to the interview room, Det. Dompierre provided a recap and asked Mr. Fadhil if he was satisfied with his right to counsel, and he replied he was. Mr. Fadhil did not testify at the voir dire that Mr. Addelman was his counsel of choice, that he believed his only option at the time was to speak with Mr. Gilbert, or that after his consultation with Mr. Gilbert, he still wanted to speak with Mr. Addelman. I find Mr. Fadhil was not diligent in asserting his right to counsel and there was no additional informational duty on the officer in these circumstances.

[24] Counsel suggested Det. Dompierre should have retrieved Mr. Addelman’s number from Mr. Fadhil’s phone. However, no evidence was presented from Mr. Fadhil about what number he had for Mr. Addelman, whether it was a number distinct from the law firm’s number, or whether he made any inquiries with Mr. Gilbert who was at the same law firm about Mr. Addelman’s availability and alternate numbers. I find the officer made no error to warrant a breach of 10(b).

[25] The 10(b) application is dismissed.

Somji J.

Released: July 27, 2021

COURT FILE NO.: 18-5176

DATE: 2021/07/27

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

SALAM FADHIL

Applicant

RULING ON SECTION 10 B CHARTER

APPLICATION

Somji J.

Released: July 27, 2021