COURT FILE NO.: CRIMJ(P)980/18
DATE: 2021 08 12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
R. Prihar, for the Crown
- and -
JONATHAN WILLIAMS
A. Romain and P. Kott, for Mr. Williams
Accused
HEARD: Tuesday, 27 July 2021
PRE-TRIAL RULING NO. 2 – STATEMENT
PUBLICATION BAN
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Trimble J.
The Motion
[1] In this ruling, I address two motions: the Crown’s for an order that the statement given by Mr. Williams on 19 April 2016 was voluntary, and Mr. Williams’ for an order that the statement should be excluded as it violated Mr. Williams’ Charter section 10 (a) and (b) rights.
The Charges
[2] Mr. Williams is charged with:
a) confining the complainant in order to supply her sexual services contrary to section 286.3(1);
b) receiving material benefit from sexual services contrary to section 286.2(1);
c) advertising sexual services contrary to section 286.4; and
d) uttering threats.
Relevant Facts
[3] Most pertinent evidence on both motions came from Det. Curtis, the officer in charge of the investigation. Mr. Williams filed no evidence.
1. The Complaint
[4] On 18 April 2016, the complainant reported to Peel Regional Police that she had engaged in sex trade work at the behest of Mr. Williams between January and April 2016, in exchange for which he received significant sums of money. When she informed Mr. Williams that she was leaving the sex trade, he threatened her, her parents, and her son over text messages. The complainant was interviewed and gave a KGB sworn statement in which she identified the accused by name and provided several phone numbers at which to contact Mr. Williams.
2. Telephone Contact with Mr. Williams
[5] Beginning at approximately 9:03 PM, Det. Curtis phoned the numbers provided. She left messages at some and determined that others were not numbers for Mr. Williams.
[6] At 11:41 PM, 18 April, Det. Curtis received a phone call from Mr. Williams. She engaged Mr. Williams in conversation to determine whether he was the correct Jonathan Williams. Mr. Williams said that he did not know anyone by the name of Stacy Furlong, although he knew many Stacy’s. He said there was one Stacy for whom he might have done a T-shirt job. This information confirmed to Det. Curtis that he had the appropriate Williams. The complainant said that Mr. Williams had done a T-shirt job for her.
[7] Det. Curtis told Mr. Williams that he was being investigated for making threats against the complainant. He replied that people make all sorts of allegations, he has a girlfriend, and that the complainant must be a very angry female. He said that anyone can say anything.
[8] Det. Curtis and Mr. Williams arranged to meet at the police station at 2:30 PM the next day. She said to him that he would be arrested and held for bail, that he should call a lawyer, and bring the lawyer with him if he chose. Det. Curtis only advised Mr. Williams that he would be charged with uttering threats, notwithstanding that she had reasonable and probable grounds to arrest him on the charges relating to the commodification of sexual activity.
[9] Det. Curtis also said that Mr. Williams reported to her that the victim was a vindictive person and was harassing him. She could not recall, however, whether that discussion occurred during a telephone phone conversation on 18 April, or at some point on 19 April.
3. The Arrest – Part One
[10] A 19 April 2016 at 2:21, Det. Curtis and Detective Constable Hutchinson arrived at 21 Division. They set up the interview room immediately upon arriving by logging onto the system and making sure that the recording devices (both video and audio) were working. At 2:32 PM, they went to the lobby where they saw three people; Mr. Williams, his father, and his sister.
[11] Det. Curtis approached the group and identified herself and introduced Det. Const. Hutchinson. Det. Curtis advised Mr. Williams that he was under arrest for uttering threats. She told him that he would be interviewed and would likely go to bail court. According to Det. Curtis, there then followed a lot of hugging and upset between the family members. The group asked her questions and she answered them.
[12] She did not give him his right to counsel and the caution at this time. She would not give it until 11 minutes later.
[13] Det. Curtis stated that she did not advise Mr. Williams in the lobby that he was being arrested on the procuring charges because he did not want to embarrass Mr. Williams in front of his family.
4. The Arrest – Part Two
[14] At 2:43 PM, Curtis and Hutchinson took Mr. Williams into a meeting room off the lobby where they arrested him for the three procuring relating charges and rearrested him for uttering threats. This room did not have video or audio recording capacity.
[15] Det. Curtis, using a standard, preprinted police form containing the statements to be given to a detainee with respect to right to counsel and the caution, read to Mr. Williams the seven questions concerning his right to counsel and two statements concerning the caution. She recorded Mr. Williams’ answers on a separate sheet of paper with numbers corresponding to the standard statements on the police form. Because she had notes on the separate sheet of paper, she did not make notes in her notebook. While D.C. Hutchinson was present, she made no notes of this discussion.
[16] What follows are the questions on the standard document concerning the right to counsel and caution, the written answers Det. Curtis recorded, and her oral evidence in chief about the questions and answers, where appropriate.
Question 1: I am arresting you for….
Written response: None
Oral evidence: Det. Curtis said that she informed Mr. Williams that he was being arrested for uttering threats, of exercising control, advertising sexual services, and deriving material benefit from the complainant’s sexual services. She said that Mr. Williams said “okay” after each charge.
Question 2: It is my duty to inform you that: you have the right to retain and instruct counsel without delay.
Written response: Okay.
Oral evidence: None
Question 3: You have the right to telephone any lawyer you wish.
Written response: Okay
Oral Evidence: Mr. Williams said “okay”.
Question 4: You also have the right to free advice from a legal aid lawyer.
Written response: Okay – is that immediate? – to which Det. Curtis said “yep. We will call right now.”
Question 5: If you are charged with an offence you may apply to the Ontario Legal Aid Plan for legal assistance; 1 800 265–0451 is a toll-free number that will put you in contact with a Legal Aid Duty Counsel lawyer for free legal advice right now.”
Written response: “Hmm Mmm”.
Question 6: Do you understand?
Written response: Yes.
Question 7: Do you wish to call a lawyer now?
Written response: Yes prefer to say nothing.
Oral evidence: Det. Curtis said that while she recorded the statement that Mr. Williams preferred to say nothing as an answer to question seven, it was, in fact, his response to question 9, the caution to remain silent, which had been read to him immediately following the above-noted questions.
Question 8: You (are charged, will be charged) with ___________.
Question 9: Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence.
[17] Mr. Williams never asked to speak to a specific lawyer, or to look at his phone or any other reference to find a lawyer.
5. Mr. Williams’ Statements Before Contacting Counsel
[18] After receiving his right to counsel and the caution in the meeting room, Mr Williams was taken by Officer Metheral, the booking officer, to be booked.
[19] Det. Curtis refreshed her memory from an August 2017 will-state that she prepared in respect to 21 points of clarification that defence counsel requested and with respect to one question the Crown asked with respect to the right to counsel and caution that arose out of the Preliminary Inquiry. She prepared that will-state without reference to any source documents or notes.
[20] Det. Curtis said that she and Hutchinson accompanied P.C. Metheral and Mr. Williams to booking. There was some lighthearted discussion during this time. Mr. Williams was told to remove his shoelaces. There was discussion that he used his glasses only for driving. Det. Curtis did not recall whether there was any discussion about his necklaces and jewelry. P.C. Metheral asked Mr. Williams if he had a lawyer or was going to get one. William said yes he was going to get one “between now and court”. He did not ask for a specific lawyer.
[21] In examination in chief, Det. Curtis was asked about a reference in Mr. Williams’ statement to her saying “you mentioned to me earlier that um, she’s been harassing you.” She was asked when that statement was made. She said it was either in the phone call the day before or he blurted it out in the cells area. If it was said in the cells area, she doesn’t remember how the subject came up. He had asserted his right to counsel and the call had not yet been instituted. Det. Curtis said that no one pressed him about the details of the case. P.C. Metheral had no recollection other than what was recorded in his notes or the Prisoner Report.
6. The Call to Duty Counsel
[22] After he was booked, Mr. Williams was taken to the telephone room where he spoke to duty Counsel from 3:05 PM to 3:10 PM.
7. The Interview
[23] Mr. Williams was placed in the interview at 3:14 PM. His interview was held between 3:17 PM and 4:36 PM, with some breaks.
[24] Throughout the interview, Mr. Williams was pleasant, often jovial. He was relaxed. To all appearances, understood what was going on.
[25] Det. Curtis did not open the interview in the standard way by identifying herself, giving the time and place of the interview, identifying Mr. Williams, confirming that he had received the charges, the right to counsel and the caution, and asking if Mr. Williams understood all of that. She jumped right into the interview.
[26] The interview ranged over Mr. Williams’ knowledge of the complainant, whether he had rented hotel rooms in Niagara Falls or Kitchener/Waterloo so that she could sell sexual services, whether he was involved with selling her sexual services, his T-shirt business, the automobiles he drove, and the process that will be followed after the interview was done.
[27] Mr. Williams appeared to be in control of himself throughout the interview, refusing to answer some questions, and questioning why he had to answer others.
[28] At 4:55 PM, Mr. Williams was taken to the cells. In the 19 minutes between when Det. Curtis left the interview and Mr. Williams was taken to the cells, Mr. Williams closed his eyes and laid his head on the table.
8. Events After the Statement
[29] At some point near the end of Mr. Williams interview, his sister called or came to 21 Division and gave an officer Mr. Williams’ current lawyer’s name and phone number. There is no evidence as to when she provided this information to police. PC Metheral admitted that his memory was limited to his documents, but the Prisoner Details Report at the top of page 2 contains a note which says:
Called lawyer Adam ROMAIN (416–995–1892) – verified using Internet. Was provided a number by girlfriend of accused at 16:45. Accused on cells phone with above lawyer at 17:01.”
[30] PC Metheral believed that this note means that he was provided with the lawyer and phone number at approximately 16:45.
[31] The interview ended at 16:36 when Det. Curtis left the interview room. She told P.C. Metheral that Mr. Williams could be taken to the cells. Metheral arrived at 16:55 (19 minutes later) to take Mr. Williams to the cells.
[32] Mr. Williams spoke to his lawyer from the cells beginning at 17:01 PM.
The Positions of the Parties
[33] The Crown argues that Mr. Williams’ statement was voluntary. Mr. Williams was aware of what was going on and had a controlling mind. Nothing overbore it.
[34] Mr. Williams argues that his statement was not voluntary. He was confused during the interview.
[35] Further, Mr. Williams submits that his statement was obtained in violation of his s. 10 (a) and 10(b) rights in that:
a) He was arrested for uttering threats but was not given his right to counsel and the caution. They delayed 11 minutes in arresting him on the remainder of the charges although they had reasonable and probable grounds to do so at the time they arrested him for uttering threats.
b) The police records of advising Mr. Williams of his rights and caution are almost non-existent, and therefore it cannot be said that the Crown met its high burden to show that he was given his right to counsel and the caution.
c) His demand to see a lawyer was not honoured. Indeed, the police maneuvered him into speaking to duty counsel instead of his own lawyer so that they could begin his interrogation and refused him the opportunity to speak to his own lawyer until after his interrogation was complete. They should have held off until he had spoken to his own lawyer.
d) Mr. Williams’ statement was tainted when Det. Curtis referred to unrecorded statements that Mr. Williams made before the statement began.
[36] Mr. Williams gave no evidence, as is his right. His position on the motion was based predominantly on two things. First, I must adopt his position at law that where the police have access to video and audio recording but do not use it, they cannot meet their burden to prove that the right to counsel and the caution were given. Second, his position requires that I reject most, if not all, of Det. Curtis’ evidence.
The Law
1. Voluntariness
[37] The focus of the inquiry on voluntariness is on police conduct and its effect on the accused’s ability to exercise free will. In that regard the court will consider the protection of Mr. Williams' rights as well as the need to investigate and solve crimes in order to protect the public. Among the factors to consider include inducements by threats or promises, whether the circumstances in which the statement was taken were oppressive, whether the statement was made by a person with an operating mind, and whether the police resorted to trickery. (See R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 (S.C.C.) at paras. 33, 47, 47-71.
[38] Reduced to its essentials, the voluntariness inquiry focuses predominantly, though not exclusively, on the ability of Mr. Williams to make a meaningful choice whether to make the statement (see: S.N. Lederman, A.W. Bryant and M.K. Fuerst in The Law of Evidence in Canada (2018, 5th ed.) at p. 490).
[39] There are no hard and fast rules about what might overbear the operating mind of an accused. The context of each case is essential and unique, and must be fully considered (see Oickle, supra, paras. 47, 71). For a statement to be voluntary, it cannot have been obtained by “hope of advantage” or “fear of prejudice” held out by a person in authority (see: Ibrahim v. R., [1914] A.C. 599, and Oickle at para. 24). It cannot have been improperly induced through threats or promises. In the Supreme Court's view, the most important consideration is whether a quid pro quo offer is made as part of the inducement (see: Oickle, para. 57). Inducements are improper where, alone or in combination with other factors, they are strong enough to raise a reasonable doubt about whether the will of the subject has been overborn (see: Oickle at para. 57, and R. v. Spencer 2007 SCC 11, para 31 to 32).
[40] Ultimately, the burden of proof rests on the Crown to prove beyond a reasonable doubt that the impugned statements were voluntarily made (see: Oickle at para. 30).
[41] Mr. Williams raises the sufficiency of the record of the statement in the voluntariness context. There must be a sufficient evidentiary record of the interactions between Mr. Williams and the police for the Crown to discharge its voluntariness onus (see: R. v. Bou-Chahine, 2013 ONSC 6355, at paras. 18 – 28).
[42] Charron J.A., as she then was, stated in R. v. Moore-McFarlane (2012), 2001 6363, 160 C.C.C. (3d) 493 (Ont. C.A.):
The decision in Lapointe does not stand for the proposition that all issues of accuracy and completeness of recording are left to the triers of fact. Such an interpretation would run contrary to centuries of jurisprudence that require careful scrutiny of the circumstances surrounding the taking of a statement by persons in authority. And, in my view, the completeness, accuracy and reliability of the record have everything to do with the court’s inquiry into and scrutiny of the circumstances surrounding the taking of the statement. Indeed, it is difficult to see how the Crown could discharge its heavy onus of proving voluntariness beyond a reasonable doubt where proper recording procedures are not followed.
[43] She also said:
The Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. The onus may be readily satisfied by the use of audio, or better still, video recording. Indeed, it is my view that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect. In such cases, it will be a matter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video record has been provided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt.
[44] If the common law voluntariness rule is satisfied, there will be no breach of the general right to silence under section 7 of the Charter because Mr. Williams will have exercised his choice to speak, which is what section 7 protects. Police persistence that does not deprive the suspect of their free and meaningful choice to speak or not, will not breach suspects right to silence nor undermine the voluntariness rule (R. v. Sinclair, 2010 SCC 35, [2010] 2 SCR 310, para. 17).
Analysis
1. Det. Curtis’ Evidence
[45] Mr. Williams asks me to reject Det. Curtis’ evidence with respect to everything that occurred before the statement as her notes were non-existent or very poor, and in any event, these conversations could have been audio and video recorded at the station.
[46] I accept her evidence. It was the only evidence. There was no evidence to the contrary. There is no reason to reject her evidence, although some parts of it were stronger than others; for example, her evidence about the discussions between arrest and the interview, given after she refreshed her memory, is weaker than her other evidence. The August 2017 will-state was made a year after the events discussed in it, and was made from her memory, without consulting any contemporaneous documents. This evidence, however, was not incapable of belief, and there was no contrary evidence.
2. No Video Recording of Discussions
[47] Mr. Williams position is based on the fact that there is no recording of dealings with Mr. Williams before he is placed in the interview room, and, absent any recording of discussions between the police and Mr. Williams, the police cannot meet their high standard of proof of establishing voluntariness beyond a reasonable doubt. In this respect, Mr. Williams relies on R. v. Moore-McFarlane (2001), 2001 6363 (ON CA), 56 O.R. (3d) 737 (C.A.).
[48] In McFarlane, the issue was the reliability of statements made by the accused which were not recorded.
[49] The trial judge, after a voir dire with respect to the voluntariness of inculpatory statements, admitted the statement as voluntary. The accused gave evidence at the voir dire. He testified that he was pepper sprayed before his arrest and then driven to the spot where the police later claimed to have apprehended him for robbery. The accused said that on the way to the station, the police struck him in the jaw with a walkie-talkie. When they arrived at the police station, they waited in the car for 30 minutes before bringing him into the station. The delay was never explained. The accused said that he was assaulted during the interviews by the police and was interviewed while naked. His three statements were audiotaped but not videotaped.
[50] Mr. McFarlane argued that there should be a constitutional requirement that police make a video and audio recording of any interview.
[51] The Court of Appeal rejected an absolute rule requiring the recording of all interviews and statements. Whether the accused has an independent operating mind is a question of fact based on all the circumstances. The Crown must establish a sufficient record of the interaction between the suspect and the police which is easily satisfied by using video recording. Where suspect is in custody and recording facilities are available and where the police interrogate the suspect without giving thought to making a record, makes the nonrecorded interrogation suspect. It will be a matter for the trial judge, however, on the voir dire in the specific case to determine whether a substitute for an audio or videotape record has been provided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt. (see: paras. 65 to 67).
[52] Mr. Williams’ case is distinguishable from McFarlane. Mr. McFarlane gave evidence. Unlike in McFarlane, in our case there is no evidence other than Det. Curtis’. While there are some problems with Det. Curtis’ evidence, I find Det. Curtis is credible. She admitted where she did not remember and where she had difficulty.
[53] Without any contrary evidence, I have only the evidence of Det. Curtis about what transpired during those times before Mr. Williams was interviewed on video.
[54] I accept Det. Curtis’ evidence that any discussion with Mr. Williams between when Det. Curtis and D.C. Hutchinson first charged Mr. Williams and when he began his statement was not about the charges, and if he made utterances such as the complainant having harassed him, these were voluntary.
3. Voluntariness
[55] I have no difficulty in finding, beyond a reasonable doubt, that Mr. Williams’ statement was voluntary.
[56] At all times, Mr. Williams appears to have had an operating mind. The defence argues that Mr. Williams was unfamiliar with the process of being arrested, booked, questioned, and held for bail hearings. His counsel argued that he was unsophisticated as evidenced by the interview process and was easily steered by the police into using duty Counsel as opposed to his own counsel. The defence pointed out that Mr. Williams did not know if he was going to be fed that evening, or what was to happen to him following the questioning. He did not realize, for example, that he would be kept overnight, and taken to bail court the next day.
[57] The defence argues that a discussion at page 51 of the transcript indicates Mr. Williams’ lack of sophistication, and that he was denied the right to counsel. Mr. Williams asked if he could make a phone call, although he didn’t say why. Det. Curtis replied that Mr. Williams had already had a phone call to a lawyer which he exercised, following which Det. Curtis said “So? Alright?” Mr. Williams said “Okay. So where do we go from now?”
[58] Mr. Williams’ question, however, follows immediately upon a discussion between Mr. Williams and Det. Curtis about Det. Curtis updating his father with respect to the charges and the interview. His question about a phone call could relate to that issue equally as to calling counsel.
[59] The statement reveals that Mr. Williams understood the discussions, and, at times controlled the discussion. For example:
Page 5, 11, 17 – he said that the complainant was harassing him and pursuing him for relationship, and he asked if he could get a restraining order against her.
Page 13 - he accused the police of coming to his home, improperly looking around the exterior of the home, and frightening his bed-ridden mother.
Page 16 - he understood and accepted Det. Curtis’ explanation for not charging him with the charges relating to the commodification of sexual activity in front of his father and girlfriend.
Pages 22, 46, 50 – he refused to allow police to inspect his phone for evidence to support his statement that the complainant had been making harassing phone calls to him, refused to answer questions about parts of his business and deliveries, and refused to allow access to his bank records to check for money transfers between he and the complainant.
Page 48 - he questioned why he had to answer “all of these questions” regarding his car and refused to answer further questions about it.
4. Tainting
[60] Mr. Williams argues that since Det. Curtis used Mr. Williams’ utterance in the interview that he made before he exercised his right to counsel, the whole of the statement is tainted and should be excluded. Given that I accept Det. Curtis’ evidence that Mr. Williams volunteered, before he spoke to counsel, that the complainant harassed him, the balance of his statement is not tainted by this utterance.
5. Arrest Part One
[61] Mr. Williams is correct in that his s. 10(b) right to be informed of his right to counsel was breached when, in the lobby of the police station, he was arrested for uttering threats. He was neither given the caution nor told of his right to counsel until 11 minutes later when he was taken into another room and arrested on the charges relating to the commodification of sexual activity.
[62] I accept Det. Curtis’ evidence that during this time, any discussion she had with Mr. Williams and his family in the lobby addressed the fact that he was being arrested and would be held pending his appearance at bail court.
[63] Det. Curtis said that she delayed charging Mr. Williams with the charges relating to the commodification of sexual activity in front of Mr. Williams’ father and sister to avoid embarrassing him. She did not explain why she did not advise Mr. Williams of his right to counsel and the caution immediately after charging him with uttering threats. She admitted that advising Mr. Williams of the right to counsel and caution in front of his family would not have embarrassed him.
[64] I accept that Mr. Williams’ s. 10(a) Charter right to be advised of the reasons for his arrest - all of them - was violated when, in the lobby and in front of his family he was arrested only for uttering threats, although the police had reasonable and probable grounds to arrest him for the charges concerning the commodification of sexual activity. He was arrested for those charges 11 minutes later in a separate room.
6. Arrest Part Two
[65] I accept that Mr. Williams was advised of the reason for his arrest on all four charges, and of his right to counsel and the caution in the board room off the lobby.
7. Denied Counsel of Choice
[66] Mr. Williams was not denied his right to counsel of his choice. Once that counsel was identified, he was put in touch with that lawyer.
[67] An accused is entitled to counsel of his choice before any questioning, if that lawyer is available in reasonable time (see: R v. McCallan (1999), 1999 3685 (ON CA), 43 O.R. (3d) 56 (C.A.), at para. 37 to 40). The corollary is that the accused must specify that he wants to speak to a specific lawyer.
[68] Where an accused’s answers signal confusion or ambiguity, the officer has a positive obligation to make a further inquiry of the accused, and any failure to do so will be a violation of 10(b) (see: R. v. Mohamud, 2010 ONSC 5142 (SCJ) at para. 19).
[69] The police arranged a call between Mr. Williams and duty counsel. Mr. Williams confirmed that he had spoken to legal aid duty Counsel. He said: “He gave me some advice and all that stuff.” This is also confirmed by Prisoner Report P.C. Metheral prepared.
[70] Mr. Williams argues that when he answered “Okay” to the question of whether he could phone any lawyer he wished he was, in fact, asking to make that call at that time. At minimum, Det. Curtis ought to have clarified with Mr. Williams whether he wanted to speak to counsel of his choice. Instead, he argues that Det. Curtis ignored that answer and moved on to the question about duty counsel, to which Mr. Williams also said “Okay, is that immediate?”
[71] Mr. Williams argues that his answers to these two questions, combined, were ambiguous and that Det. Curtis ought to have asked more questions of Mr. Williams to determine whether he wished to speak to duty counsel or his own lawyer, given that he had indicated his desire to speak to both counsel of his choice, and to duty counsel.
[72] Mr. Williams argues that when he said that he intended to retain counsel “sometime between now and trial” that too was a request at that time to speak to a lawyer of his preference.
[73] Mr. Williams argues that he was effectively put to an election: speak to or duty counsel, now, or your own lawyer, later.
[74] I disagree with his positions for the following reasons:
a) Mr. Williams never expressed the desire to speak to his own counsel, or any specific counsel;
b) He asked to speak to duty counsel shortly and was given that opportunity immediately after being booked;
c) The questions asked during the right to counsel and caution, on their face, did not present him with an “election”. Mr. Williams was told that he could have his own lawyer and speak to that lawyer if he wanted. He did not name such a lawyer. Duty counsel was arranged;
d) Mr. Williams’ use of the work “Okay” did not represent a stated desire to speak to a lawyer then and there. Rather, in context, by saying “okay”, Mr. Williams was acknowledging that he heard and understood the question or statement;
e) Mr. Williams’ statement that he intended to hire a lawyer “between now and the trial” does not indicate the desire to speak to a lawyer of his choice at that time. Rather, it is an imprecise indication of when he might get a lawyer. Further, implicit in the statement is that he did not have a specific lawyer at that time;
f) Absent Mr. Williams providing the name of his counsel of choice, there could be no “steering” him toward duty counsel. That was the only option;
g) The statements that he made between his request to speak to counsel and his interview were not elicited from him. He stated them voluntarily;
h) Mr. Williams’ was not denied the right to speak to the lawyer of his choice. That he had a specific lawyer only came to the police’s attention at or about the time that his interview was complete.
Section 24(2)
[75] Mr. Williams’ section 10(a) rights were violated when he was charged in the lobby of the police station with uttering threats, but not charge with the three charges relating to the commodification of sexual activity until 11 minutes later, when the police had reasonable and probable grounds to arrest him for the three charges relating to the commodification of sexual activity. Regardless of the reasons for waiting 11 minutes to inform him of the other reasons for his arrest, there is no legal justification for not advising him of all reasons for his arrest when she arrested Mr. Williams for uttering threats.
[76] Mr. Williams’ section 10(b) rights were violated when he was charged in the lobby of the police station with uttering threats and not advised of his right to counsel and provided with the caution.
[77] The Supreme Court of Canada instructs us that if there is Charter breach, in determining whether the evidence should be excluded the court must consider the effect of admitting the evidence on society’s confidence in the justice system, having regard to:
a) the seriousness of the Charter-infringing state conduct;
b) the impact of the breach on the Charter-protected interests of the accused; and
c) society’s interest in adjudication of the case on its merits.
[78] In this case, the statement is not excluded under s. 24(2).
[79] The Charter rights in s. 10 are the most significant rights an accused person has when faced with arrest and detention. That is when the citizen is most vulnerable to the weight of the state.
[80] The police’s motive for waiting 11 minutes to inform Mr. Williams of the charges regarding the commodification of sexual activity is irrelevant. Mr. Williams’s Charter rights supersede his potential embarrassment.
[81] The Charter infringing conduct, however, was relatively minor. The police waited only 11 minutes before advising Mr. Williams of all the charges against him, and of his right to counsel and the caution. Any breach was cured when he was told of all the charges against him, and received his rights and the caution in the meeting room.
[82] The charges, too, are serious. Mr. Williams is alleged to have exploited the complainant by controlling her and compelling her to sell sexual services, advertising those services, profiting from their sale, and of threatening her when she decided to stop selling those services. Society’s interest in the adjudication of the case on its merits increases with the seriousness of the charges.
[83] The impact of the breach of Mr. Williams Charter rights weighs in favour of excluding the statement, but the modest nature of the breach favours not excluding it. Society’s interest in having the adjudication of the charges on its merits tips the balance in favour of not excluding the statement.
Trimble J.
Released: August 12, 2021
COURT FILE NO.: CRIMJ(P)980/18
DATE: 2021 08 12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
JONATHAN WILLIAMS
PRE-TRIAL RULING NO. 2 – STATEMENT
Trimble J.
Released: August 12, 2021