R. v. Wight, 2022 ONSC 1432

COURT FILE NO.: CR-20-30000477-0000

DATE: 20220303

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

PETER WIGHT, O’NEIL THOMPSON and FANTASIA HOO-HING

Accused

Julie Battersby and Anna Gilmer, Counsel for the Crown

Lydia Riva and Leah Shafran, Counsel for Peter Wight

Monte MacGregor and Amanda Warth, Counsel for O’Neil Thompson

Steven Stauffer and Kateryna Zadorozhnya, Counsel for Fantasia Hoo-Hing

HEARD: February 14-18 and 23, 2022

M.A. CODE J.

Reasons for judgement on admissibility of thompson’s statement

A. OVERVIEW

[1] The three accused, Peter Wight, O’Neil Thompson, and Fantasia Hoo-Hing (hereinafter, Wight, Thompson, and Hoo-Hing), are jointly charged in an Indictment alleging that Wight and Thompson committed first degree murder and that Hoo-Hing committed second degree murder in relation to the death of one Edwin McGowan on September 22, 2019. I was assigned as trial judge and began hearing a number of pre-trial Motions on February 14, 2022. Jury selection is scheduled to commence on March 7, 2022.

[2] A number of relatively straightforward pre-trial Motions were completed on February 14, 2022. I then began hearing evidence over four days on the one Motion that was more contentious. That Motion concerned the admissibility of a statement taken by the police from O’Neil Thompson almost 12 hours after his arrest. The Crown sought to prove the voluntariness of the statement and the defence sought to establish that the statement was taken in violation of s. 10(b) of the Charter of Rights. The two issues were heard together at a single blended hearing. The Crown called eight police witnesses and the defence called no evidence.

[3] I heard submissions on February 23, 2022. At the end of oral argument I ruled that the statement was not admissible. At that stage of the hearing, there was no real dispute as to the voluntariness of the statement and I held that the Crown had proved voluntariness beyond reasonable doubt. However, I was satisfied on a balance of probabilities that there had been a relatively serious violation of s. 10(b) of the Charter. I excluded the statement pursuant to s. 24(2) of the Charter. I gave short oral reasons, with written reasons to follow. These are my written reason for excluding the statement.

B. FACTS

(i) Introduction

[4] The main issues on the Motion relating to s. 10(b) of the Charter were as follows: first, whether the police were justified in delaying implementation of Thompson’s s. 10(b) rights for about ten hours after his 4:30 p.m. arrest, because of the need to execute two search warrants; second, whether Thompson was “reasonably diligent” in exercising his right to counsel, when he asked to speak to his lawyer in “the morning” at a point when the police first offered to call her at 2:35 a.m., and again at 3:00 a.m., and finally at 4:15 a.m.; and third, if Thompson was “reasonably diligent”, whether the police violated their duty to “hold off” eliciting evidence from him when Det. Sgt. Choe sought to interview him at 4:15 a.m., or whether Thompson waived his right to counsel at this point. I will focus on the facts relevant to these three issues when summarizing the evidence heard on the Motion.

(ii) The homicide investigation

[5] The background to the Toronto Homicide Squad investigation in this case was summarized in the evidence of Det. Sgt. Choe, who was the lead investigator. It is also set out in the search warrant Information that was prepared by D.C. Emptage, while the police were delaying implementation of Thompson’s right to counsel.

[6] In brief summary, the deceased Edwin McGowan was found dead in his apartment on the evening of September 22, 2019. From a review of video surveillance in the apartment building, the Homicide Squad investigators quickly focused on three suspects – a black female who had apparently been in McGowan’s apartment and who let a white male and a black male into the building, shortly before the homicide. A neighbour heard a loud argument, yelling, glass breaking, and the sound of someone hitting the door, all apparently coming from the apartment of Edwin McGowan around the time of the alleged homicide. The investigators found a large amount of blood and signs of a struggle in the apartment. The cause of McGowan’s death was blunt force trauma to the head. There was also a gunshot wound to McGowan’s leg. The investigation led the police to believe that Wight was the white male suspect and he was arrested on September 27, 2019. The investigators believed that Hoo-Hing was the black female suspect and she was arrested on October 2, 2019. The firearm allegedly used in the homicide was not found upon the arrests of either Wight or Hoo-Hing or upon searches of their premises.

[7] The contents of a cell phone seized from Hoo-Hing on arrest on October 2, 2019 led the investigators to suspect that Thompson was the black male who had not yet been arrested. For a number of reasons, they also suspected that it was this individual who likely possessed the firearm used in the alleged homicide. The reasonable grounds to arrest Thompson for the murder crystalized on October 10 and 11, 2019, after Hoo-Hing’s phone records were obtained and analyzed. Surveillance officers were assigned at that time to locate Thompson and to find out where he had been residing, so that search warrants could then be executed on his place or places of residence. The investigators knew of two addresses that were associated with Thompson – his mother’s residence on Kingston Road in Pickering and his girlfriend’s residence on Meadowvale Road in Scarborough. The investigators also learned of a BMW car that was registered in Thompson’s name. The surveillance officers looked for Thompson on October 10, 11, and 12, 2019, without success.

(iii) Thompson’s arrest

[8] The next day, October 13, 2019, was Sunday of the Thanksgiving long weekend. The Homicide Squad investigators were not on duty that day but Det. Sgt. Choe was in telephone contact with the surveillance officers, and they were on duty. Det. Sgt. Choe was advised by telephone that the surveillance officers had found Thompson and had observed him in his BMW car leaving his mother’s Kingston Road address in Pickering. They also observed him arriving at his girlfriend’s Meadowvale Road address in Scarborough, and so advised Det. Sgt. Choe at 12:36 p.m. Det. Sgt. Choe instructed the surveillance officers to arrest Thompson. Det. Sgt. Choe believed that he now had sufficient grounds to obtain search warrants for these two addresses and for the BMW.

[9] Det. Sgt. Choe had given the instructions to the surveillance officers at 2:35 p.m. to arrest Thompson. However, he also instructed the officers to wait until Thompson left the Meadowvale premises and to also wait until Thompson was away from those premises. In this regard, Det. Sgt. Choe wanted the arrest to be made at a time and place when Thompson would be in possession of a cell phone. He also did not want the occupants of the Meadowvale residence to learn of the arrest, so that these premises could subsequently be searched, once a warrant was obtained, without any prior opportunity for anyone in the residence to dispose of evidence. Finally, Det. Sgt. Choe was concerned about the outstanding firearm and safety issues, if the arrest was made at the residence. At 4:07 p.m. on October 13, 2019, Det. Sgt. Choe was advised by the surveillance officers that Thompson had left the Meadowvale premises. Det. Sgt. Choe would have known at this point that the arrest was now imminent.

[10] Det. Bowmaster was the team leader of the surveillance officers. He was communicating with Det. Sgt. Choe by telephone. At 2:35 p.m., while keeping Thompson’s BMW car and the Meadowvale residence under surveillance, Det. Bowmaster received Det. Sgt. Choe’s instructions to arrest Thompson, once it was safe. At 4:05 p.m., Thompson emerged from the residence, got into his BMW, and drove away. At 4:21 p.m., the BMW pulled into a shopping plaza on Kingston Road in east Scarborough. Thompson parked and remained in the car for almost ten minutes. At this point, Det. Bowmaster instructed the surveillance team to carry out a “high risk takedown”. It was now 4:30 p.m. Det. Bowmaster had been waiting to find a safe location to make the arrest. The seven surveillance officers were in seven unmarked cars. They surrounded and boxed in Thompson’s car and he was arrested at gunpoint. The reason for this “high risk” manner of arrest was public safety and officer safety. Det. Bowmaster had been advised by Det. Sgt. Choe that the arrest was for murder, that a firearm had been involved, and that the firearm was still outstanding.

[11] Det. Bowmaster yelled at Thompson to “get his hands up” and Thompson complied, while seated in the driver’s seat of the BMW. At this point, Det. Bowmaster put his gun away, took control of Thompson, and had him stand outside the car. Det. Bowmaster advised Thompson that he was “under arrest for murder”, handcuffed him, and advised him of his right to counsel in a general way, telling him that he had the right to call a lawyer and advising him of duty counsel and the 1-800 phone number for free legal advice. Thompson replied that he understood.

[12] The surveillance officers had Thompson sit on the ground while they awaited the arrival of uniform officers with an in-car camera, to more formally advise Thompson of his arrest, right to counsel, and right to remain silent. Det. Bowmaster phoned Det. Sgt. Choe to advise of the now completed arrest. At this point, Thompson began asking questions, such as “why he was under arrest” and “who did I murder”? Det. Bowmaster did not engage in any discussion about the case. Rather, he told Thompson that investigators would speak to him at the station and advised him again that he could call a lawyer at the station. At this point, Thompson expressly asserted his s.10(b) right to counsel by stating that he did want to speak to a lawyer.

[13] The two uniform transporting officers, P.C. Hind and P.C. Baiati, arrived at the scene of the arrest at 4:42 p.m. They were driving a marked police car with an in-car camera. Thompson was placed in the rear passenger seat and P.C. Baiati stood at the open rear passenger side door. He read Thompson his various rights at 4:46 p.m. This was all video and audio recorded on the in-car camera. P.C. Baiati stated that Thompson was under arrest for murder and then read the full formal right to counsel advice from his police memo book. He asked if Thompson had a lawyer and if he wished to call a lawyer. Thompson replied “yes” and advised that his lawyer was “Marianne from Ted Royle’s office”. P.C. Baiati stated that they would try to reach her and arrange a call, once they were back at the station. Otherwise, he advised that they would arrange a call to duty counsel. P.C. Baiati also read Thompson a full caution concerning the right to remain silent, including advice that anything he said could be used against him. Thompson responded by asking, “when will I get to speak to the detectives”? P.C. Baiati replied, “once we get you back to the station and get you processed, the detectives will speak to you.” Thompson replied “okay”.

(iv) Transporting Thompson to the station

[14] The transporting officers did not drive away from the scene of the arrest until 5:00 p.m. During this short period of delay, from 4:51 p.m. until the 5:00 p.m. departure, the transporting officers obtained Thompson’s property from the surveillance officers. Thompson sat in the back seat of the marked police car and made various spontaneous statements to the transporting officers, which were all recorded on the in-car audio and video recording system. The Crown does not seek to tender these statements as part of its case at trial. However, they have some potential relevance to the issue of waiver that arises almost 12 hours later, at 4:15 a.m., so I will summarize the statements.

[15] Thompson began by asking, “was I followed here”, and P.C. Hind replied, “I do not know”. Thompson then stated, “let’s get moving so I can speak to the detectives”. Thompson asked, “why wouldn’t they go to my address, it makes no sense, they say its murder, why would they publicly embarrass me”? P.C. Hind replied, “I do not know, you can ask that question to the detectives”. Thompson then stated, “that’s what I want to do …” Thompson continued to ask questions about the investigation and P.C. Hind continued to reply that he was just a transporting officer and could not answer these questions. Thompson expressly stated at 4:54 p.m., “I want to speak to the detectives” and “I need to know what these guys have”. P.C. Hind replied, “you’re going to speak to the detectives,” once they get back to the 41 Division station. Thompson asked whether it was “first or second degree, I need to know what’s going on, I already have a case going on.” P.C. Hind replied, “it’s second degree murder”. Thompson replied, “now we’re getting somewhere … I need more information”. Thompson continued to ask more questions and P.C. Baiati came to the open rear passenger door for a second time and repeated the caution concerning Thompson’s right to remain silent. Thompson interrupted P.C. Baiati, who then advised Thompson to speak to his lawyer. P.C. Baiati again asked Thompson for his lawyer’s name and Thompson replied “Ted Royle” and gave his address as “University and Dundas”. Thompson continued to ask questions about the investigation and whether “they got the wrong person”. The transporting officers did not reply. Thompson stated at 4:58 p.m., “I can’t wait to speak to the detective, I hope this is a mistake … so many questions and no one to answer them.”

[16] The above events took place at the scene of the arrest, from 4:30 p.m. to 5:00 p.m. Prior to the arrest, Det. Sgt. Choe was already making phone calls to get the resources that he would need. He began by arranging for transporting officers from 41 Division. He spoke to P.C. Hind at 4:22 p.m., advised him of the anticipated arrest, and made sure that he had a car with an in-car camera. He instructed P.C. Hind to record “any interaction” that he had with Thompson, to ensure complete accuracy. Det. Sgt. Choe was not sure whether he specifically instructed P.C. Hind to delay or suspend Thompson’s right to speak to a lawyer. However, he testified that he was confident that the 41 Division officers would not facilitate Thompson’s right to counsel because it is always left to the Homicide Squad officers to make phone calls to counsel in homicide cases. Det. Sgt. Choe testified that he made a deliberate decision to delay Thompson’s access to counsel because the police were planning to obtain two search warrants for the two residences where Thompson had been seen on the day of the arrest. Det. Sgt. Choe did not want anyone learning of Thompson’s arrest, because of his concerns about loss of evidence, officer safety, and public safety. In particular, he was concerned about the gun which had not yet been recovered. He was not concerned about deliberate misconduct by a lawyer but rather about an accidental “leak” from the lawyer to anyone at the two residences.

[17] Det. Sgt. Choe also made phone calls to get two other members of his Homicide Squad team to come into work on Sunday evening on the Thanksgiving long weekend. He was able to reach Det. Emptage and Sgt. Panayotov and they agreed to attend at 41 Division, in order to assist Det. Sgt. Choe. He instructed Det. Emptage to begin preparing search warrant Informations for Thompson’s BMW, for the Kingston Road residence, and for the Meadowvale Road residence. Det. Sgt. Choe arranged to have the BMW towed to the police garage. He then left home at about 5:15 p.m. and arrived at 41 Division station at about 6:00 p.m.

[18] It took the transporting officers about 20 minutes, from 5:00 p.m. until 5:20 p.m., to drive from the scene of the arrest on Kingston Road to 41 Division station. Throughout the drive, Thompson continued to make a number of spontaneous statements. They were similar to the statements that he had previously made at the scene of the arrest, asking questions about the investigation and asking to speak to the detectives. For example, he made the following statements: “is the detective going to be available?”; “what about the detective, will I be able to speak to the detective in charge of this case?”; “I want to find out if this is a mistaken thing or what’s going on … before I even say anything … when I speak to my counsel, then I know whether this is a joke”; “I want to know what’s going on, I want to speak to the detectives”; and “I need the whole story”. The transporting officers explained the booking process to Thompson and advised that he could speak to the detective in charge of the case at some point.

(v) Delays at the station

[19] There was a further delay when the police car arrived at 41 Division at 5:20 p.m. There was another police car ahead of them, waiting to get into the sally port with a detainee. From 5:20 p.m. to 5:30 p.m., the transporting officers and Thompson waited until the sally port door opened, letting the car ahead of them into the station in order to begin the booking process for that detainee. From 5:30 p.m. to 5:51 p.m., they waited until this police car ahead of them was finished and had pulled out of the sally port, allowing the two transporting officers to drive into the sally port with Thompson in the back seat. During this entire half hour period outside the sally port, from 5:20 p.m. to 5:51 p.m., Thompson was restless and uncomfortable, complaining about the handcuffs and about a shoulder injury from playing soccer. The two transporting officers were respectful and helpful, opening one of the rear doors to the police car so that Thompson could get some fresh air and stretch his legs outside the car, while they waited. Thompson continued to make spontaneous statements, similar to his previous statements. For example, he stated the following: “I just want to speak to a detective so I can rest my head … this is a mistake”; “I can’t wait to talk to the detectives, I need some answers”; and “I just hope the detective is there, it’s not tomorrow … at least I’ll know what’s going on”. P.C. Baiati reminded Thompson of the earlier caution and stated that “everything is being recorded”, that “everything can be used against you”, and that “he will have an opportunity to speak to his lawyer or duty counsel and you can talk to them about all this”. Thompson replied, “I already know the procedures”.

[20] There was a further half hour delay, from 5:52 p.m. to 6:22 p.m., while Thompson was left in the back of the police car inside the sally port. A number of explanations were given for this period of delay. The two transporting officers got out of the police car and went into the booking office. They gave information about the case and about Thompson to the booking officer, so that this information could be entered in the computer system and the booking process could begin. There were apparently delays with the computer system. The officers also took Thompson’s property out of the car and took it inside to the booking office. They also went to the cell where Thompson was going to be taken, in order to shut off the water and make it a “dry cell”. This last step was taken because Det. Sgt. Choe, who was now at 41 Division, had instructed P.C. Hind that he wanted a FIS officer to seize Thompson’s clothing and photograph him. Det. Sgt. Choe phoned the FIS detachment at 6:02 p.m., and asked for a forensic identification officer to attend at 41 Division in order to photograph Thompson and seize his clothing. This FIS officer, D.C. Tulli, did not arrive at 41 Division until 7:07 p.m. and he was not ready to photograph Thompson and seize his clothing until 7:52 p.m. This further delay meant that Thompson would have to be monitored in a “dry cell”, until he was photographed and his clothing was seized. He could then be strip searched for any weapons or drugs. Drugs had been found on Thompson on arrest and the search of his person was not to be carried out until after the FIS officer had seized Thompson’s clothing. Thompson was to be monitored in the “dry cell” in order to ensure there was no tampering with evidence. The final explanation for this further period of delay, while Thompson waited in the car inside the sally port, was that P.C. Hind understood from Det. Sgt. Choe that he needed a tape recorder. He testified that he was instructed to record everything while he monitored Thompson in the “dry cell”. Accordingly, P.C. Hind went into 41 Division and obtained a tape recorder, before beginning the booking process.

[21] Once again, Thompson was continuously audio and video-recorded in the back seat of the police car during this half hour period from 5:52 p.m. to 6:22 p.m., while he waited in the sally port for the above tasks to be completed by the transporting officers. Once again, he was restless and uncomfortable due to the handcuffs and his sore shoulder. Once again, the transporting officers appeared to be empathetic, somewhat helpful, and even apologetic. They explained some of the reasons for the delay to Thompson and they opened one of the rear doors to the police car, so that Thompson could get some fresh air and stretch his legs outside the car. Once again, Thompson continued to make spontaneous statements during this period. For example, he stated the following: “need to speak to this detective and find out what’s going on”; “right now, I just need to speak to the detective, somebody, to find out what the hell’s going on”; “I need to talk to someone”; and “come on guys, this is … torture, I need to talk to somebody … I need to talk to the detective to find out what’s going on, it must be a mistake.” Thompson would occasionally look directly at the in-car camera while making these statements.

(vi) The booking process and waiting for FIS in the “dry cell”

[22] Thompson was removed from the police car. Between 6:23 p.m. and 6:27 p.m., he was paraded before Staff Sgt. Ho in the booking office of 41 Division station. P.C. Baiati advised Staff Sgt. Ho that Thompson had been arrested for second degree murder, that he had been advised of his right to counsel, and that he wished to speak to a lawyer. Thompson was asked by Staff Sgt. Ho if there was a particular lawyer he wished to speak to. Thompson replied, “yes, Ted Royle, Marianne from Ted Royle’s office”. He did not have her phone number but Staff Sgt. Ho said that the police would “look it up”. Staff Sgt. Ho went on to say, “we will call Mr. Royle first” and they would call other counsel if necessary. Finally, Staff Sgt. Ho advised Thompson that he would not be searched until the FIS officer arrived. This four minute booking process was audio and video-taped.

[23] At 6:28 p.m., Thompson was taken to the “dry cell” and the handcuffs were removed. The two transporting officers sat outside his cell and tape recorded everything that was said by themselves and by Thompson, while waiting for the FIS officer. Det. Sgt. Choe testified that this continuous tape recording at the “dry cell” was due to a misunderstanding between him and P.C. Hind. The instruction that Det. Sgt. Choe had given was to tape record “any interaction” between the officers and Thompson. Det. Sgt. Choe assumed the 41 Division officers would simply watch Thompson in the “dry cell”, while waiting for D.C. Tulli from FIS. He did not anticipate that the officers would tape record Thompson in his cell for almost an hour and a half, from 6:28 p.m. until 7:52 p.m., when D.C. Tulli finally began the FIS process. P.C. Baiati testified that there were multiple cameras in the cell area at 41 Division, monitoring both the corridor outside the cells and the interior of each cell. P.C. Baiati understood from Det. Sgt. Choe that they were to tape record until FIS arrived, in order to capture any information that Thompson provided.

[24] During this lengthy period of time at the “dry cell”, Thompson continued to make numerous spontaneous statements. Initially, he was pacing in his cell and speaking almost constantly. For the most part, the officers just listened without responding. Thompson’s statements were largely repetitive of the topics he had previously covered in the two hours since his arrest. However, there was also some discussion about Thompson’s right to counsel. P.C. Hind testified that he had not taken any steps to implement Thompson’s repeated requests to speak to his lawyer. This was because P.C. Hind and P.C. Baiati had understood, from Det. Sgt. Choe’s telephone instructions at the time of the arrest, that facilitating Thompson’s right to counsel was to be delayed. The 41 Division officers were to gather information about reaching Thompson’s mother and his lawyer but the Homicide Squad officers would facilitate access to counsel and to any other phone calls. This is the normal practice in homicide cases, according to P.C. Hind.

[25] In furtherance of these instructions, P.C. Hind explained to Thompson that he was not limited to one phone call and that he was entitled to reasonable access to the telephone. He asked Thompson whether there was anyone other than his lawyer who he wanted to call. Thompson gave his mother’s name and her phone number. P.C. Hind told Thompson that his lawyer would be the first call and then his mother. Thompson asked P.C. Hind to look up his lawyer’s phone number. P.C. Hind searched in his smart phone and found the Ted Royle firm’s phone number and address and confirmed it with Thompson. P.C. Hind understood that Thompson had a lawyer at Mr. Royle’s firm named Marianne and that she was handling some case for Thompson. P.C. Hind never told Thompson that the police were deliberately delaying his right to speak to counsel. He simply said, “we’re going to call your lawyer first” and that he would have privacy. The officers brought Thompson some food and water and he eventually sat down and stopped making spontaneous statements.

[26] After over three quarters of an hour in the “dry cell”, Thompson asked about his phone calls. P.C. Hind explained that they had to carry out the “level three” search first, and then he could have his phone calls. Thompson stated, “I thought I was going to get a phone call like you said.” After over an hour in the “dry cell,” Thompson stated “I’ll lose my mind if I don’t speak to my lawyer or the detective by tomorrow.” A few minutes later, he stated “I’m sure I won’t be able to speak to my lawyer because of the holidays”, presumably referring to the Thanksgiving long weekend. P.C. Hind testified that Thompson appeared to be concerned about delay. A few minutes later, Thompson stated “I don’t know anything until I speak to this detective.” Thompson also stated, “my mind is going all over the place … these guys say one phone call … I thought that call was going to be immediate … who’s right, who’s wrong … should get a phone call right away.” P.C. Hind agreed, in cross-examination, that Thompson seemed to believe that he should get a phone call to his lawyer immediately. P.C. Baiati responded to Thompson’s statements by explaining that, “I don’t know anything about the investigation” and that Thompson should discuss it “with his lawyer or the officer-in-charge.” Thompson replied, “my lawyer will know everything that I know” but that “my lawyer won’t know anything else until after disclosure.”

[27] At 7:52 p.m., D.C. Tulli came to the “dry cell”. Thompson was then taken to a private room where the FIS process of seizing Thompson’s clothes and photographing him was carried out. D.C. Tulli explained that FIS officers receive specialized training and they take particular precautions to prevent contamination when seizing clothing, so that any DNA testing is not compromised. They also have specialized gloves, bags, vehicles, and property lockers that are sterile and prevent contamination. They did not want Thompson’s clothes to be handled by others during a strip search, before the FIS officers arrived and seized the clothing. They also wanted to photograph Thompson in his clothing. D.C. Tulli explained that he left the FIS building at 6:32 p.m., arrived at 41 Division at 7:07 p.m., and then received instructions from the Homicide Squad officers and prepared until he met with Thompson at 7:52 p.m.

[28] P.C. Hind continued to tape record the interactions with Thompson during the FIS process. After it was finished, and after Thompson had been strip searched and given overalls, he stated “when I speak to my lawyer and speak to the detective, I’ll have a clearer understanding.” D.C. Tulli replied that he did not know about the case. The 41 Division officers then took Thompson back to his cell, the tape recording ended, and the officers left Thompson alone. It was now 8:04 p.m., about three and a half hours since Thompson’s arrest.

(vii) Obtaining the search warrants and the phone call from Thompson’s counsel

[29] P.C. Hind testified that he went up to the Youth Bureau at 41 Division, after leaving Thompson in his cell. The Homicide Squad officers were working in the Youth Bureau office and P.C. Hind reported back to them. He provided them with the information he had obtained from Thompson about his lawyer and his mother, so that the Homicide Squad officers could facilitate phone calls when it was timely.

[30] Det. Emptage was a member of the Homicide Squad investigative team. He testified that he was called in to help Det. Sgt. Choe and that he arrived at 41 Division shortly after Thompson’s arrest. He began preparing a single search warrant Information for the three locations to be searched – Thompson’s BMW car, Thompson’s home address on Kingston Road, and Thompson’s girlfriend’s home on Meadowvale Road. Det. Emptage had essentially been working full time on the McGowan homicide case, with Det. Sgt. Choe and Sgt. Panayotov. As a result, Det. Emptage had previously prepared Informations for a number of search warrants and production orders related to the investigation. It was an ongoing document that he continually updated and that he had last updated on October 11, 2019, when seeking a production order for certain phone records. The new investigative information that Det. Emptage had to add in, after Thompson’s arrest, was the following: the analysis of the phone records obtained on October 11, 2019; the surveillance of Thompson on October 13, 2019, in relation to the car and the two addresses to be searched; and the arrest of Thompson on October 13, 2019.

[31] Det. Emptage worked exclusively on the search warrant Information, once he arrived at 41 Division. It was made an exhibit on the Motion and it is a lengthy detailed document. Det. Emptage completed the search warrant Information at 10:16 p.m. and sent an email to the Justice of the Peace on duty at the Telewarrant Centre stating, “I have one ITO and three associated search warrants for your review.” The Justice of the Peace replied three minutes later, at 10:19 p.m., stating “Please advise if it is urgent and how many pages your ITO is. I have numerous other warrants to review and am trying to prioritize.” Det. Emptage was aware that the firearm allegedly used in the homicide was still outstanding, after Thompson’s arrest. The police believed that the firearm was at one of the three locations to be searched and it was itemized in the search warrant Information. Det. Emptage understood that the fact of Thompson’s arrest was not to be disclosed, in order to ensure that evidence was not lost or destroyed. He testified that there is no general practice to prevent calls to counsel, when police have concerns about loss of evidence. It depends on the particular circumstances of the case. Det. Emptage responded to the inquiry from the Justice of the Peace about “urgency” at 10:57 p.m., stating in an email, “We just got news that a resident at one address is attempting to find out if he [Thompson] is arrested. Urgency is been [sic] upgraded because of this.” The Justice of the Peace replied one minute later, at 10:58 p.m., stating “send the materials”. Det. Emptage replied one minute later, at 10:59 p.m., sending the sworn Information and draft search warrants to the Justice of the Peace.

[32] The above reference in Det. Emptage’s 10:57 p.m. email, to someone “attempting to find out if he [Thompson] is arrested”, was to certain information that Det. Sgt. Choe had just received. The front desk officer at 41 Division, Officer Niezen, had received a phone call from Thompson’s mother and from his lawyer, trying to confirm whether Thompson was in custody. It was unclear to Det. Sgt. Choe whether it was one call or two separate calls but he understood that Officer Niezen spoke to both of them. Det. Sgt. Choe instructed Officer Niezen not to disclose anything about Thompson’s arrest or about him being in custody at 41 Division. Det. Sgt. Choe explained, in cross-examination, that the call from both Thompson’s lawyer and Thompson’s mother illustrated why he was concerned about any kind of “leak” relating to Thompson’s arrest, while the police were still waiting for the search warrants. As a result of this call or calls to Officer Niezen, Det. Sgt. Choe knew by 10:59 p.m. that Marianne Salih of the firm Edward Royle & Partners was Thompson’s lawyer, that she had called for Thompson, and that she left two phone numbers (her own number and the law firm number), which Det. Sgt. Choe noted in his memo book.

[33] Det. Sgt. Choe already knew that Thompson wanted to speak to his lawyer, since the time of the booking. Det. Sgt. Choe had decided to withhold any call to counsel until the police could search for the firearm. He instructed the homicide team and an officer at 41 Division that he did not want the residents at the two places to be searched to learn of Thompson’s arrest, given the concerns about public safety, officer safety, and loss of evidence. Det. Sgt. Choe acknowledged that he never told Thompson that a decision had been made to delay his right to speak to counsel until after certain investigative steps had been completed. Thompson was also not told or reassured that he would be allowed to speak to counsel once these investigative were completed. Finally, Det. Sgt. Choe acknowledged that he never considered securing the two premises to be searched, while awaiting the search warrants. He had used this “exigent circumstances” warrantless power in other cases but he was concerned about the risks in this case.

[34] At 10:17 p.m., Det. Sgt. Choe began preparing the search teams, in anticipation of obtaining the search warrants. He spoke to both the ETF and the 41 Division Major Crime Unit, in order to obtain assistance with entering premises where a firearm may be located, and with searching the premises. At 11:51 p.m., less than an hour after she received the search warrant Information, Justice of the Peace Henderson signed the three telewarrants and emailed them to Det. Emptage. He immediately advised Det. Sgt. Choe that the search warrants had been granted.

(viii) Execution of the search warrants and the first attempt to implement Thompson’s right to counsel

[35] Det. Sgt. Choe had been working on briefing packages for the search teams, while waiting for the search warrants. He had also spoken to the surveillance officers in order to gather information about what could be anticipated at the two addresses to be searched. At 12:16 a.m., twenty-five minutes after the telewarrants had been received, Det. Sgt. Choe briefed the ETF and 41 Division officers who were to execute the warrants. The briefing covered the items to be searched for and safety issues. The briefing lasted 15 minutes, ending at 12:31 a.m. The Kingston Road address was in Pickering and so at 12:38 a.m. the Durham Regional Police were advised of the planned search. Det. Sgt. Choe was aware that all these steps were delaying Thompson’s exercise of his right to counsel.

[36] The three Homicide Squad officers attended at the Meadowvale Road address. They waited there until the ETF officers entered and secured the premises at about 1:30 a.m. The homicide investigators then proceeded to the Kingston Road address. Once again, they waited for the ETF to enter and secure the premises at about 2:07 a.m. The 41 Division MCU officers had been split into two separate search teams for the two separate addresses. There were also FIS officers at the two residences, to seize and photograph any relevant items that were found. The Homicide Squad officers did not participate in the searches because they intended to return to 41 Division, once both premises were secured. Det. Sgt. Choe’s plan was to arrange a phone call for Thompson and then interview him. He felt that there was no longer any justification to withhold Thompson’s right to counsel, once both residences had been secured.

[37] At 2:32 a.m., Det. Sgt. Choe had entered the Kingston Rd premises, after the ETF had secured the residence. Once he was back outside the residence, Det. Sgt. Choe called 41 Division. He instructed an officer at 41 Division, named Det. Petrakis, to facilitate Thompson’s phone call to counsel. The three Homicide Squad officers then drove back to 41 Division. Det. Petrakis was not a Homicide Squad officer and he was not involved in the investigation. He was simply asked by Det. Sgt. Choe to go to the cells and ask Thompson if he wanted to make any phone calls and to get the phone number.

[38] At 2:35 a.m., Det. Petrakis went down to the cells. He tape recorded his entire interaction with Thompson at the cell. Thompson was asleep and so Det. Petrakis called out his name. Once Thompson awoke, Det. Petrakis asked him, “do you want us to make some phone calls?” Thompson asked, “are you recording?” Det. Petrakis replied “yes” and asked again whether Thompson wanted to make any phone calls. Thompson replied, “yes”. Det. Petrakis asked if Thompson had any phone numbers. Thompson replied, “it is three o’clock in the morning” and then said that he “will wait until the morning”. Det. Petrakis asked, “you will wait until the morning”? Thompson then asked, “are you the detective boss in this case?” Det. Petrakis replied, “not on this case, I am a detective at 41 Division … they are going to come and talk to you … is there anyone you want to call, at this time, I know … it’s 2:40 in the morning.” Thompson digressed and said that his clothes had been taken, that “he was given a jumpsuit”, but that he did not have “socks”. Det. Petrakis returned to the topic of phone calls and asked, “as for the phone calls, you want nothing right now”? Thompson replied by asking, “who is available at 2:30 in the morning?” Det. Petrakis replied, “I don’t know sir, I am asking you.” Thompson stated, “I was told I was going to get a phone call four hours ago … I was sleeping … you woke me.” Det. Petrakis replied, “fair enough.” Thompson then stated, “are you recording … I am not giving up my phone call, I’m just saying that it’s way too early … for a phone call.” Det. Petrakis replied, “late … fair enough … so you will have a chance to make the phone call, if you want to make the phone call a little later when it is morning time, you’ll have that opportunity.” Thompson replied, “okay” and Det. Petrakis replied, “okay, fair enough sir, okay.” Thompson replied, “okay” and they ended the discussion at that point.

[39] The three Homicide Squad officers were back at 41 Division by 2:54 a.m. Det. Petrakis provided the tape of the interview to Det. Sgt. Choe, once he was back at 41 Division. Det. Sgt. Choe had not given Det. Petrakis the phone numbers that he had for Thompson’s lawyers, prior to Det. Petrakis’ interview in the cells. Det. Sgt. Choe received the tape recording of Det. Petrakis’ meeting in the cells with Thompson. He listened to it at 2:59 a.m. but did not speak to Det. Petrakis. Det. Sgt. Choe testified in-chief that he understood from the tape recording that Thompson did not want any phone calls. He repeated this evidence again, during his testimony in-chief. However, in cross-examination, he changed his evidence on this point and testified that he actually understood that Thompson did want to call counsel in the morning, but not right now.

(ix) The second attempt to implement Thompson’s right to counsel

[40] After listening to the tape of Det. Petrakis’ meeting in the cells with Thompson, Det. Sgt. Choe remembered that Thompson’s lawyer, Marianne Salih, had called sometime around 10:59 p.m. that evening. As a result, Det. Sgt. Choe now instructed Sgt. Panayotov to go back down to the cells, advise Thompson of Ms. Salih’s phone call, and ask if Thompson wanted to speak to her. Sgt. Panayotov was one of the homicide investigators who had been working on the case throughout. He attended in the cells and tape recorded his interview with Thompson. Sgt. Panayotov was aware that Det. Sgt. Choe planned to interview Thompson that morning. He believed that the interview was about to occur. He did not know the time when Ms. Salih had made her earlier phone call to 41 Division.

[41] Sgt. Panayotov’s interview with Thompson was four minutes long, from 3:12 a.m. to 3:16 a.m. I will set it out in some detail, as it is important. Sgt. Panayotov called Thompson’s name and introduced himself and the following exchanges took place:

T. Are you a detective on the case?

P. [After acknowledging that he was] The detective will also talk to you … A lawyer called for you earlier … Marianne Salih, do you know who that is? [Thompson advised that he knows her]. Do you want to talk to that person?

T. Is she available now?

P. I do not know if she would be available right now but I will make a phone call and you will be put in contact with her, if that is what you want.

T. It’s three o’clock in the morning so …

P. It is three o’clock in the morning, you are correct, but again it’s your choice, I can definitely make a phone call.

T. It’s okay, I’ll call in the morning, now that she is aware …

P. So you know who that is, you know who that person is? [Sgt. Panayotov did not clarify or correct Thompson’s statement or belief that “she is aware”].

T. Yes [acknowledging that he knows Ms. Salih].

P. So again, could you just be clear, do you want to talk to her now, do you want me to try to get a hold of her?

T. I would like to speak to her in the morning.

P. In the morning, okay.

T. I could call her in the morning … when she’s awake.

P. Okay.

T. I’m not waiving my right to a phone call.

P. But that being said, I still have to call duty counsel regardless, okay, so I want to make a phone call to duty counsel, if you don’t want to talk to Marianne right now.

T. So duty counsel is awake right now?

P. Oh yeah, one hundred percent, they are 24/7.

T. What time did Marianne call?

P. I’m not sure because I was not the one who accepted the call, but it was at some point in the evening, that’s my understanding.

T. So I want to state for the recording, I’m not waiving my phone call, I just want to call when people are awake.

P. Okay, so right now you don’t want to call Marianne?

T. I want to call Marianne in the morning when she’s awake.

P. Okay, that fine. So what I’ll do then, I’ll go ahead and make a phone call to duty counsel, and then I’ll put you in contact with duty counsel, okay?

T. What am I saying to duty counsel?

P. It’s entirely up to you what you want to tell duty counsel.

T. Can I call in the morning, can I sleep?

P. You want to sleep?

T. I was having trouble sleeping, I finally got to sleep, and now you woke me up.

P. Okay, and I apologize for that, but I just arrived here and just wanted to make sure you’ve been given your right to talk to a lawyer, whether it’s Marianne or duty counsel?

… [unclear further exchanges occur at this point]

P. Okay, so I’m going to make the phone call to duty counsel right now.

T. When will I be speaking to duty counsel?

[Thompson repeats this question twice]

P. As soon as they call back …

T. I’d like to speak in the morning.

P. They return the call right away, or within reasonable time.

T. Sir, I’ve been here over how many hours, I was told I would get a phone call … [unclear further exchanges at this point].

P. Okay, fair enough, okay. So I’m going to let you be right now.

T. I’ll make my calls in the morning.

P. Okay, alright.

[42] Sgt. Panayotov returned to the office at 41 Division where the homicide investigators were working and advised Det. Sgt. Choe of the results of the interview in the cells. Sgt. Panayotov’s understanding of his meeting with Thompson was as follows: Thompson wanted to return counsel’s call in the morning and wanted to be left alone for now. Det. Sgt. Choe agreed that he was briefed by Sgt. Panayotov about his meeting with Thompson. Det. Sgt. Choe testified in-chief that he understood from this briefing that Thompson did not want to make any calls. Det. Sgt. Choe had been preparing for his planned interview with Thompson and was rushing to get to the interview. He did not listen to the tape recording of Sgt. Panayotov’s meeting in the cells with Thompson. He received only a brief passing mention from Sgt. Panayotov, just before the interview or on the way to the interview, to the effect that Thompson did not want to make any calls. Det. Sgt. Choe explained, in-chief, that his understanding was that Thompson had originally wanted to speak to counsel, earlier in the evening, but he now believed that Thompson no longer wished to speak to counsel. Det. Sgt. Choe believed that Thompson had changed his mind in relation to his right to speak to counsel. Once again, Det. Sgt. Choe proceeded to change this evidence during cross-examination when he testified that in fact he understood, both from Det. Petrakis and from Sgt. Panayotov, that Thompson did want to call counsel in the morning, just not now.

(x) The statement taken by Det. Sgt. Choe

[43] The audio and video recorded interview between Det. Sgt. Choe and Thompson took place in an interview room. It lasted for one hour, from 4:15 a.m. to 5:16 a.m. Thompson was asleep in his cell when Sgt. Panayotov arrived to take Thompson to the interview room. After waking Thompson, he was escorted to the interview room.

[44] Det. Sgt. Choe explained in his testimony why he decided to proceed with the interview at 4:15 a.m. He testified in-chief that this was the earliest time that the interview could proceed and that he believed he could not wait until the morning. Thompson had been arrested at 4:30 p.m. on the previous day and he had to be brought before a Justice of the Peace in Bail Court within 24 hours. It was Thanksgiving Monday on a holiday long weekend and the Bail Court at Old City Hall started at 10:00 a.m. Det. Sgt. Choe testified that he believed the prisoner wagon would be coming to 41 Division early in the morning, in order to have the prisoners in court by 10:00 a.m. In all these circumstances, Det. Sgt. Choe felt that he did not have much time.

[45] In cross-examination, Det. Sgt. Choe agreed that he knew both Det. Petrakis and Sgt. Panayotov had to wake up Thompson, who was sleeping when they went to his cell. He also agreed that he knew Thompson could be driven to Old City Hall in a police car, if he missed the early morning prisoner wagon, and that he could still be brought before a Justice of Peace within 24 hours of his arrest. Det. Sgt. Choe also knew that a bail hearing would not be proceeding at Old City Hall, in Thompson’s case, because he was charged with murder. In all these circumstances, Det. Sgt. Choe agreed that he could have conducted the interview with Thompson in the early morning and he would still have been able to bring him to court in sufficient time to comply with the Criminal Code.

[46] I do not intend to summarize the contents of Thompson’s hour long interview in any detail. In my view, the main issue in relation to s. 10(b) of the Charter in this case is whether Det. Sgt. Choe should have been interviewing Thompson at all, in the circumstances that existed at 4:15 a.m. on October 14, 2019. Nevertheless, I will summarize a few of the highlights of the interview that relate to the issue of waiver, as follows:

• After Det. Sgt. Choe introduced himself as the “lead investigator”, Thompson immediately raised the issue of his right to counsel stating: “I understand that Marianne called, which is my lawyer … obviously call her back at a reasonable hour … I know at 3:30 the gentleman woke me up to try to call her back … So I’ll be calling her in the morning… Like I said, I was hoping this could be done … in the reasonable hours”;

• Without addressing Thompson’s request to speak to Ms. Salih “in the morning”, Det. Sgt. Choe proceeded to advise Thompson he was being charged with murder and then asked, “do you wish to say anything in answer to the charge?” Thompson began to make various responses, at which point Det. Sgt. Choe gave the standard caution concerning the right to remain silent, including “whatever you say may be given in evidence”;

• Det. Sgt. Choe then gave what he referred to as “a Prosper warning” because “I understand that you first indicated you wanted to speak to counsel but have since changed your mind”. The content of this warning was as follows: “I am informing you of your right to a reasonable opportunity [to] contact a lawyer … I am further informing you that during this time you are not obliged to say anything until you’ve had a reasonable opportunity [to] speak to counsel”;

• Det. Sgt. Choe then stated, “that being said, I’m going to continue … you’ve indicated to me you’re satisfied with me continuing this conversation and that you’ll talk to your lawyer later.” Thompson replied, “I wish I could speak to her at all”;

• Det. Sgt. Choe stated, “I can make that call for you.” Thompson replied, “Nobody’s not gonna be awake at 3:30 in the morning, it’s the holidays, boss … They already notified her so, you know, I’ll wait till the morning to actually speak to her instead of her voicemail.” Det. Sgt. Choe testified that he was “confused” by Thompson’s apparent belief that the police had “notified” Ms. Salih. Nevertheless, he did not correct Thompson and advise him that it was Ms. Salih who had called 41 Division, trying to reach Thompson, and that the police had deliberately decided not to tell her that Thompson had been arrested for murder or even that he was in custody at 41 Division;

• The interview then continued with Det. Sgt. Choe asking, “So can I continue?” and Thompson replying, “Yeah, sure, go ahead … You’re the boss. You’re the captain of the ship … I mean, I at least wanna hear what you have to say …”;

• The interview proceeded with Det. Sgt. Choe disclosing certain aspects of the police investigation and Thompson asking certain questions about the investigation. When Det. Sgt. Choe began to question Thompson, he replied by suggesting that Det. Sgt. Choe was playing “games” and then stating, “I think I should speak to my lawyer.” Det. Sgt. Choe replied by giving Thompson a binary choice: “Do you want me to call your lawyer or do you want me to continue telling you.” Det. Sgt. Choe also agreed not to ask certain questions. Thompson replied, “No, it just doesn’t make no sense … you asking me these questions …” Det. Sgt. Choe then stated, “Okay, I’m gonna get to it then. Do you want me to get to it?” Thompson replied, “Yes” [Det. Sgt. Choe’s offer “to get to it” appears to refer to disclosing more investigative information about the alleged murder];

• The interview continued with Det. Sgt. Choe again disclosing certain information about the police investigation and Thompson asking questions about the investigation. Det. Sgt. Choe interspersed these exchanges with explicit questioning of Thompson about certain aspects of the case [It is Thompson’s answers to these questions that the Crown seeks to use at trial as some of his answers appear to be lies];

• Thompson made further references during the interview to his beliefs about Ms. Salih’s phone call to the station. For example, he stated, “when my lawyer called back, why wasn’t I notified right away … that just seems like some trickery … normally you’re able to speak to your lawyer”. He also stated, “I’d rather wait till tomorrow, speak to my counsel and then you can continue your investigation.” Det. Sgt. Choe replied, “Okay, I’ll leave her a message.” Thompson stated, “Well, they already left her a message, to my understanding.” Det. Sgt. Choe replied, “I’ll leave a message too” [In neither of these exchanges did Det. Sgt. Choe correct Thompson’s apparent mistaken belief that the police had called Ms. Salih and “left her a message” and that she had “called back”. Det. Sgt. Choe also did not clarify why he was offering merely to “leave her a message”, rather than facilitating an actual phone call to counsel];

• During the interview, Thompson repeatedly stated, “I would like to speak to my counsel … in the morning” or “it’s best that I seek counsel”. Det. Sgt. Choe continued to show Thompson certain demonstrative evidence relating to the case and continued to question Thompson. When Det. Sgt. Choe stated, “You’re lying to me”, Thompson asked why he had not been allowed a call to counsel, stating “This is where my counsel gets involved. I don’t know why I’m still in this room … I did ask to get a phone call and neither of them I got because of your investigation.” At this point Det. Sgt. Choe finally explained, “You didn’t get a call because we’re investigating two addresses … we executed search warrants on both addresses … we didn’t let you have any calls …”

[47] The interview ended with Det. Sgt. Choe offering to “leave your lawyer a message” and asking, “if she picks up, do you want me to put her through to you?” Thompson replied, “yeah, sure.” Thompson was taken back to his cell at 5:16 a.m. Det. Sgt. Choe called the phone number that Ms. Salih had left with Officer Niezen at about 10:59 p.m. the previous evening, and she did not answer the phone. It was 5:27 a.m. and Det. Sgt. Choe left a message. He also called the second number that Ms. Salih had provided to Office Niezen when she called 41 Division. It was the emergency number at Ted Royle’s law firm. Det. Sgt. Choe also left a message on that line.

C. ANALYSIS

(i) Introduction

[48] The meaning and content of s. 10(b) rights was settled during the first ten years of Charter litigation. In R. v. Bartle (1994), 1994 CanLII 64 (SCC), 92 C.C.C. (3d) 289 at 301 (S.C.C.), Lamer C.J.C. gave the majority judgement and summarized the three components of the s. 10(b) right to counsel that had been established in the early case law:

This Court has said on numerous previous occasions that s. 10(b) of the Charter imposes the following duties on state authorities who arrest or detain a person:

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel;

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

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

(See, for example, Manninen, at pp. 391-2; R. v. Evans (1991), 1991 CanLII 98 (SCC), 63 C.C.C. (3d) 289 at pp. 304-5, and Brydges, at pp. 340-1.) The first duty is an informational one which is directly in issue here. The second and third duties are more in the nature of implementation duties and are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel. [Italics of Lamer C.J.C.]

[49] In the present case, there is no question that the police repeatedly complied with the first “informational duty”. Thompson was advised of his right to counsel on numerous occasions during the relevant twelve and a half hour time period summarized above, and he asked to exercise that right. The focus in this case is entirely on the second and third “implementation duties”. In this regard, the defence submits that the police unreasonably delayed the second duty and then violated the third duty by interviewing Thompson at 4:15 a.m. The Crown disputes these two points and submits that Thompson forfeited the rights provided by the second and third duties when he unreasonably declined the police offer of a phone call to counsel on various occasions during the early morning hours. The Crown also submits that Thompson implicitly waived his right to counsel by repeatedly seeking to speak to the detectives and by agreeing to proceed with Det. Sgt. Choe’s interview.

[50] I will address the three issues raised by the parties in the logical order in which they arise: first, was there unjustified delay in implementing Thompson’s right to speak to counsel; second, was Thompson reasonably diligent in exercising his right to speak to counsel; and third, did the police violate the duty to refrain from eliciting evidence or did Thompson waive his right to counsel.

[51] I will not address the issue of voluntariness. It was conceded in closing submissions that the Crown had proved voluntariness and I agree with this concession.

(ii) Delay by the police in implementing s. 10(b) rights

[52] There was undoubtedly substantial delay in facilitating Thompson’s access to counsel in the present case. The issue is whether that delay was justified. As set out above in Bartle, the second implementation duty is qualified by an exception for “urgent and dangerous circumstances.” More recently, in R. v. Suberu (2009), 2009 SCC 33, 245 C.C.C. (3d) 112 at para. 42 (S.C.C.), the majority reiterated this qualification and specified that it applies where there are “concerns for officer or public safety”. Otherwise, the duty on the police is to implement s. 10(b) rights “immediately”:

In our view, the words “without delay” mean “immediately” for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.

Finally, and most recently, the Court stated in R. v. Taylor (2014), 2014 SCC 50, 311 C.C.C. (3d) 285 at para. 24 (S.C.C.) that the police must “facilitate the requested access to a lawyer at the first reasonably available opportunity.”

[53] The leading Ontario Court of Appeal decision concerning delay in implementing s. 10(b) rights is R. v. Rover (2018), 2018 ONCA 745, 366 C.C.C. (3d) 103 at 112 (Ont. C.A.). Doherty J.A. gave the judgement of the Court and described the circumstances in which delay could be justified:

Section 10(b) obliges the police to advise a detained person of the right to speak with counsel without delay and, if the detained person exercises that right, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 at paras. 38, 42; R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173 at pp. 191-92.

The s. 10(b) jurisprudence has, however, always recognized that specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relate to police safety, public safety or the preservation of evidence. For example, in R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, the court accepted that the police could delay providing access to counsel in order to properly gain control of the scene of the arrest and search for restricted weapons known to be at the scene. Subsequent cases have accepted that specific circumstances relating to the execution of search warrants can also justify delaying access to counsel until the warrant is executed: see e.g. R. v. Learning (2010), 2010 ONSC 3816, 258 C.C.C. (3d) 68 (Ont. S.C.J.), at paras. 71-75.

These cases have, however, emphasized that concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay access only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel. Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel: see e.g. R. v. Patterson (2006), 2006 BCCA 24, 206 C.C.C. (3d) 70 (B.C. C.A.), at para. 41; R. v. Soto, 2010 ONSC 1734 (Ont. S.C.J.), at paras. 67-71; Learning, at para. 75; R. v. Wu (2017), 2017 ONSC 1003, 35 C.R. (7th) 101 (Ont. S.C.J.), at para. 78. [Emphasis added].

[54] I am satisfied that the total amount of delay in implementing Thompson’s right to counsel was ten hours. He was arrested at 4:30 p.m. on Sunday, October 13, 2019, and was advised of his s. 10(b) rights immediately upon arrest. The first occasion when the police made efforts to implement these rights was at 2:35 a.m. on Monday, October 14, 2019, when Det. Petrakis attended in the cells, found Thompson asleep, and offered to facilitate a phone call. This is an exceptionally long period, even for justified delay, when the police are under a duty to implement s. 10(b) rights. In R. v. Learning (2010), 2010 ONSC 3816, 258 C.C.C. (3d) 68 at paras. 71-76 (Ont. S.C.J.), the Court reviewed the case law at that time relating to s. 10(b) delay “where a search warrant is being executed and guns are believed to be on the premises”, which is the same justification advanced in the present case. The cases at that time, in 2010, involved s. 10(b) delays of between two and five hours and they were held to be justified. In addition, there was one “particularly extreme case” where over 24 hours delay was held to be justified, while the police “obtained a search warrant in order to seize multiple firearms from a violent criminal family”. Since Learning was decided, there have been two recent Ontario Court of Appeal decisions where s. 10(b) delays of two and a half hours and three and a half hours were held to be justified, while the police obtained and executed search warrants in cases involving firearms and where there were concerns related to officer safety. See: R. v. Leonard, 2020 ONCA 802; R. v. Griffith, 2021 ONCA 302.

[55] Counsel for Thompson, Mr. McGregor, does not dispute the general principle emerging from the above authorities, to the effect that delaying implementation of s. 10(b) rights can be justified where search warrants are being executed and firearms are involved. He simply submits that the particular delay in this case was unreasonably long and that the police should have taken various steps to minimize or mitigate the delays that were accumulating. In this regard, I have underlined the two relevant passages from Rover that address this point, in the excerpt quoted above.

[56] This is a difficult issue to resolve, as there are good arguments on both sides. On the one hand, the police had a reasonably plausible basis for believing that Thompson was the third suspect and that he had carried and used the gun that was involved in the homicide. When the gun was not seized upon his arrest, it was necessary to obtain search warrants for his car and his two apparent residences, in order to try to find and seize the gun. It was on the Sunday of the Thanksgiving long weekend, when Thompson was finally located and arrested, and the Homicide Squad investigators were not on duty. Preparation of the search warrant Information in a relatively complex circumstantial case, alleging the involvement of three parties in a murder, necessarily took some time. Organizing and preparing search teams and an ETF team for entry into two separate residences, in order to locate the firearm, was an inevitably challenging task on the late Sunday night of a long weekend. All of these circumstances support Ms. Battersby’s position, on behalf of the Crown, that the delay in implementing Thompson’s s. 10(b) rights was highly case-specific and was justified.

[57] On the other hand, Det. Sgt. Choe knew by 2:35 p.m. that Thompson’s arrest was likely to occur that afternoon. He could have instructed Det. Emptage to begin work on the search warrant Information at that time. It is unclear when Det. Emptage actually arrived at 41 Division and when he began his work on the search warrant Information, but he did not complete it until 10:16 p.m. that night. This was a lengthy period of delay and it is difficult to evaluate, given the lack of evidence as to when Det. Emptage actually started his work that day. There was a further delay that is hard to explain, from 10:16 p.m. until 10:59 p.m., before Det. Emptage advised the Justice of the Peace as to the “urgency” of the matter and before he actually sent her the sworn Information. As these delays accumulated, Det. Sgt. Choe took no steps to mitigate the impact on Thompson’s s. 10(b) rights. For example, he never went to see Thompson in the cells to inform him that his right to counsel was being delayed, while the police took certain investigative steps, and to reassure him that he would soon be allowed to call counsel. Instead, Thompson was left completely in the dark as to what had happened to his s. 10(b) rights. In addition, Det. Sgt. Choe never turned his mind to the recognized power to secure premises, while waiting for a search warrant, even though he had used this warrantless power in other cases. See, e.g. R. v. Darteh, 2014 ONSC 895 at paras. 188-198; aff’d 2016 ONCA 141. Finally, the cumulative delay of ten hours is unusual and exceptional in the s. 10(b) case law, as noted above. Delay of this magnitude has rarely happened, let alone been justified. All of these circumstances support Mr. McGregor’s position that, at some point, the delay became unreasonable.

[58] In my view, it is not necessary to resolve this relatively evenly matched argument. Assuming, without deciding, that the Crown can justify the ten hour delay in implementing Thompson’s s.10(b) rights, this becomes the critically important context for evaluating Thompson’s “reasonable diligence”, when he was finally offered a phone call to his lawyer at 2:35 a.m., and again at 3:00 a.m., and finally at 4:15 a.m. I now turn to that issue which, in my view, is determinative of the s. 10(b) Charter issue in this case.

(iii) Reasonable diligence in exercising s. 10(b) rights

[59] The three s. 10(b) duties imposed on the police, as summarized above in the excerpt from Bartle, were always qualified by a correlative duty on the accused to be “reasonably diligent”. Once again, Lamer C.J.C. summarized the early authorities on this point in R. v. Bartle, supra at p. 301:

Importantly, the right to counsel under s. 10(b) is not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended: R. v. Tremblay (1987) 1987 CanLII 28 (SCC), 37 C.C.C. (3d) 565 at p. 568 (S.C.C.); R. v. Black (1989), 1989 CanLII 75 (SCC), 50 C.C.C. (3d) 1 at pp. 13-4 (S.C.C.).

Thompson undoubtedly invoked or asserted his right to speak to counsel. The issue is whether he was “reasonably diligent” in exercising that right, when he declined the various offers made by the police to immediately call his lawyer, prior to the 4:15 a.m. interview with Det. Sgt. Choe.

[60] In my view, the determination as to whether an accused has been “reasonably diligent” in exercising his right to counsel is largely fact dependent. As Sopinka J. stated in one of the leading cases, R. v. Smith (1989), 1989 CanLII 27 (SCC), 50 C.C.C. (3d) 308 at 325-6 (S.C.C.), “this determination is largely a question of fact”. Similarly, in R. v. Ross (1989), 1989 CanLII 134 (SCC), 46 C.C.C. (3d) 129 at 135 (S.C.C.), Lamer J. (as he then was) stated, on behalf of the majority:

Reasonable diligence in the exercise of the right to choose one's counsel depends upon the context facing the accused … [A]ccused or detained persons have a right to choose their counsel and it is only if the lawyer chosen cannot be available in a reasonable delay that … the accused should be expected to exercise the right to counsel by calling another lawyer. [Emphasis added].

Finally, in R. v. Willier (2010), 2010 SCC 37, 259 C.C.C. (3d) 536 at paras. 33 and 35 (S.C.C.), the Court stated:

What constitutes reasonable diligence in the exercise of the right to contact counsel will depend on the context of the particular circumstances as a whole.

Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation: Black. If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended: citing Ross and Black. [Emphasis added].

[61] In light of this context-specific nature of the “reasonable diligence” requirement, the s. 10(b) case law reveals a number of different fact situations. In the root case, R. v. Tremblay (1987), 1987 CanLII 28 (SCC), 37 C.C.C. (3d) 565 (S.C.C.), the accused was “violent, vulgar, and obnoxious” in response to a breathalyser demand, and he was “stalling when he was given the telephone to contact a lawyer.” There are a number of similar trial decisions where the accused was “aggressive and abusive” and refused to either give the police his lawyer’s phone number or speak to duty counsel. See, e.g. R. v. Surhoff (2016), M.V.R. (6th) 262 at para. 58 (Ont. S.C.J.); R. v. Beuk [2005] O.J. No. 1693 (S.C.J.). These are obvious examples of a lack of “reasonable diligence”. They do not apply to Thompson who was never aggressive or abusive with the police, who repeatedly gave the police the name of his counsel, and who confirmed her law firm’s phone number and address when the police looked it up. The issue in the present case is whether Thompson was “reasonably diligent” in declining to make a phone call to his counsel of choice in the middle of the night. There is a trilogy of cases, all decided by the Supreme Court in 1989, that address this issue on their own particular facts.

[62] In the first case, R. v. Ross, supra, the police were investigating a break and enter that had occurred at night at about 10:00 p.m. The two accused were arrested and charged at about 12:30 a.m. that same night. Both accused had lawyers. When advised of their s. 10(b) Charter rights, they both attempted to call their lawyers. It was about 2:00 a.m. and neither lawyer answered the phone. When asked if he wanted to call another lawyer, one accused said “No.” It was unclear whether the other accused was asked the same question and whether he responded in the same way. At 3:00 a.m., the police proceeded to place both accused in an identification line-up. The issue at trial and on appeal was whether the identification line-up evidence was obtained in violation of s. 10(b). After setting out the “reasonable diligence” requirement, Lamer J. (as he then was) gave the majority judgement and stated (at pp. 136-7 C.C.C.):

Once Ross had tried and failed to reach his lawyer, it would appear that the police assumed their obligation to provide a reasonable opportunity to retain counsel was at an end. One can reasonably infer that they also misconstrued the nature of their obligation as concerned the appellant Leclair. Obviously, there was no urgency or other reason justifying that the police proceed forthwith and it cannot be said that the appellants had a real opportunity to retain and instruct counsel. This therefore leads us to consider the second duty.

In the case at bar, it cannot be said that the appellants had a real opportunity to retain and instruct counsel before the line-up was held. Nor can it be said that there was any urgency or other compelling reason which justified proceeding with the line-up so precipitously.

The Crown urged upon us that it was necessary to hold the line-up immediately, while the memories of the witnesses were fresh and undisturbed. I cannot accept this submission. While it may be desirable to hold a line-up as soon as possible, this concern must generally yield to the right of the suspect to retain counsel, which right must, of course, be exercised with reasonable diligence. Here, the line-up was held with utmost, indeed highly unusual dispatch. There is nothing to suggest that the line-up could not have been held a few hours later, after the appellants had again attempted to contact their lawyers during normal business hours. [Emphasis added].

[63] In the second case, R. v. Black (1989), 1989 CanLII 75 (SCC), 50 C.C.C. (3d) 1 (S.C.C.), the police were investigating a stabbing incident late at night. At about 11:40 p.m., the accused was arrested and charged with attempt murder. She was advised of her s. 10(b) rights. The police and the accused arrived at the police station at about 11:58 p.m. She was taken to an interview room and she asked to speak to a particular lawyer. The police called him at his home and the accused had a brief private telephone consultation with her counsel of choice. After further investigation (during which the police learned that the victim of the stabbing had died), the police advised the accused that she was now charged with first degree murder. It was 1:40 a.m. and the accused asked to again speak to her lawyer. The police tried several times to reach counsel but his line was busy. The police asked the accused if she wished to speak to another lawyer and she replied “no” and reiterated her wish to speak to counsel of choice. The police allowed the accused to call her grandmother and then began questioning her about the alleged murder. The issue at trial and on appeal was whether this statement was obtained in violation of s. 10(b) of the Charter. After setting out the “reasonable diligence” requirement, Wilson J. stated the following on behalf of a unanimous Court (at pp. 13-14 C.C.C.):

In this case I think the appellant was reasonably diligent in attempting to contact counsel. She sought out and spoke to her lawyer as soon as she arrived at the police station and, when she was advised that the charge would be changed from attempted murder or stabbing to first degree murder, she again immediately expressed a desire to consult her lawyer. It is not entirely surprising that her lawyer was unavailable at 1:40 a.m. Nor do I think it was unreasonable for her to refuse to try to contact another lawyer when she could not get Mr. Digby. As was held in Ross, s. 10(b) entitles an arrested or detained person to consult with the lawyer of his choice. It is only if that choice necessitates an unreasonable delay that an obligation arises to accept another lawyer. A delay of approximately eight hours until normal office hours came around would not, in my view, be unreasonable in this case, given that the charge was alleged to be first degree murder and given the lack of urgency for the interrogation. [Emphasis added].

In relation to the last point about “lack of urgency”, Wilson J. emphasized the trial judge’s finding as follows (at p. 8 C.C.C.):

The evidence discloses, and the police admit, that there was no need for urgency. They could have waited to take the statement later in the same morning when contact with counsel would have been more reasonable and probable.

[64] The third and last case in the Supreme Court trilogy is R. v. Smith, supra. The Crown relies heavily on Smith in the present case. In that case, the accused was arrested at home at 7:13 p.m. and was charged with robbery. He was advised of his s. 10(b) Charter rights and was taken to the police station. There were a number of unusual requests made by the accused on the way to the police station. Lamer J. (as he then was) described what happened, speaking for two members of the majority (at p. 311 C.C.C.).

On the way, he [the accused] made several requests, all of which the police complied with. He asked, among other things, that certain pills be retrieved from his apartment, that his keys be left with a certain woman and that he be allowed to obtain gum and cigarettes. It was only upon his arrival at the police station, at approximately 9:00 p.m., that the appellant expressed his intention to communicate with his lawyer. The police, at this time, gave him a telephone book and gave him access to a telephone. Having noticed that the telephone book only contained the office number for his lawyer, the appellant decided not to make the call and to wait until the morning. The police suggested that he try to make the call but he refused. He was placed in a police cell.

About an hour later, that is at about 10:00 p.m., the accused was interviewed by the police. A four member majority of the Supreme Court held that there had been no s. 10(b) violation and the statement was admitted. Lamer J. (Gonthier J. concurring) held that the accused had not met the “reasonable diligence” requirement. He reasoned as follows (at pp. 313-315 C.C.C.).

In the case at bar, the police, on the way between home and the police station, advised the appellant of his right to retain and instruct counsel. The appellant expressed several wishes but never expressed a wish to retain and instruct counsel. It was only upon his arrival at the police station, about two hours later, that the appellant indicated his intention to call his lawyer. The police, at this time, gave him a telephone book and brought him to a telephone. However, the appellant decided not to call because it was 9:00 p.m. and the only telephone number appearing in the telephone book was his lawyer's office number. The police suggested that he try since it was always possible that somebody would be at the office or that an answering machine would indicate a second telephone number where the lawyer could be reached. However, the appellant refused and decided to wait until the morning.

The case at bar is a situation where an arrested or detained person was not reasonably diligent in the exercise of his rights. The appellant was arrested and informed of his right to retain and instruct counsel around 7:00 p.m. About two hours had passed before he expressed the wish to exercise his right to retain counsel and, after having expressed this wish, he decided, in view of the above-mentioned circumstances, that it was useless to try to contact his lawyer. In acting in such a way, the appellant was not, in my view, reasonably diligent in the exercise of his rights. We are not able to conclude that it would have been impossible for him to contact his lawyer when he was arrested or at 9:00 p.m. when, at the police station, the police gave him a telephone book and brought him to a telephone. The majority of counsel working in the field of criminal law, or the lawyers who are working for them, are usually available outside normal office hours and can be reached in one way or another. A call to their office sometimes enables one to obtain another telephone number where it is possible to reach them, to leave a message or to speak with someone in charge of receiving and transferring messages to them.

The situation would be very different if, as in the case of R. v. Ross, supra, the appellant had tried to contact his lawyer but had failed in his attempt. The appellant, in these circumstances would have been justified to ask for a delay until the opening of offices in the morning. However, his decision to not even try to contact his lawyer is fatal, in my view, and prevents him from establishing that he was reasonably diligent in the exercise of his rights. The burden of proving that it was impossible for him to communicate with his lawyer when the police offered him the opportunity to do so was on the appellant. [Emphasis added].

L’Heureux-Dubé J. gave separate concurring reasons, finding no s. 10(b) violation. Finally, Sopinka J. gave separate concurring reasons. He stated (at p. 325 C.C.C.) that it was “a case close to the line” and he commented on “the cogency” of the dissenting reasons of LaForest J. He ultimately agreed with Lamer J.’s conclusion because of the following conduct by the accused (at p. 325 C.C.C.):

In this case the appellant was most casual in asserting his right. He frittered away about two hours worrying about comparatively trivial matters at a time when counsel was more likely to be available. Despite police urging, he would not place a phone call to determine if counsel could be contacted at about 9 p.m. In these circumstances the courts below concluded that the appellant had been afforded a reasonable opportunity to retain and instruct counsel. [Emphasis added].

The dissent of LaForest J. (Dickson C.J.C. and Wilson J. concurring) held that “this case is governed by Ross” and concluded that the accused was “reasonably diligent” (at pp. 320-1 C.C.C.):

The Crown submits, however, that the appellant did not diligently pursue his s. 10(b) rights. I cannot accept this position. The appellant wanted his lawyer, George Brown. It is true that he did not telephone Mr. Brown's office at 9:00 p.m. to get in touch with him, but that does not persuade me that the appellant was not diligently pursuing his rights. An individual in the appellant's position might quite realistically think that he could not reach a lawyer at his office at that time of night and that even if he did, the lawyer would postpone any meeting to the next day.

I should add that the appellant should be able to wait and get in touch with his lawyer, rather than with any lawyer. If the investigation needed urgently to be pursued, the position might be different, but it cannot be said that there was any urgency in this case. There was nothing that would preclude the investigation from proceeding just as effectively the following morning. The alleged crime had taken place five months before.

Also see: R. v. Barrientos, 2014 ONSC 2862 at paras. 58-74 per MacDonnell J.; R. v. McGregor, 2020 ONSC 4802 at paras. 161-191 per Bird J.

[65] The facts of present case differ from the Ross, Black, and Smith trilogy in a number of important respects. In particular, none of these cases involved an accused who had been in custody for 10 hours and who was asleep at 2:35 a.m., when he was first offered a phone call to counsel. In addition, none of the three leading cases involved a deliberate decision by the police to delay access to counsel for this unusually long period of time. In other words, in the present case the police created the unusual circumstances that existed at 2:35 a.m., in which the accused then found himself. By way of contrast, in Smith it was the accused who unreasonably created the circumstances in which he found himself at 9:00 p.m. As Sopinka J. put it, he “frittered away about two hours” with “trivial matters,” before asserting his right to counsel, and he then refused to even attempt the 9:00 p.m. phone call to counsel that was immediately offered by the police. These relatively unsympathetic facts, nevertheless, divided the Court in a “close” 4-3 decision. In my view, the facts of the present case are dramatically more favourable to the accused.

[66] In spite of the above distinctions between the present case and the Ross, Black, and Smith trilogy, a number of helpful principles emerge from those cases in relation to the application of the “reasonable diligence” requirement. Applying those principles to the particular facts of this case, I am satisfied that Thompson was “reasonably diligent” in exercising his s. 10(b) rights. In particular, I rely on the following:

• first, Thompson promptly asserted or invoked his right to counsel upon arrest at 4:30 p.m., unlike Smith where the accused unreasonably delayed for two hours until a time (9:00 p.m.) when it was less likely that he could reach counsel;

• second, Thompson identified his lawyer to the police as in Ross and Black, and assisted them in finding and confirming the address and phone number of the lawyer’s law firm;

• third, Thompson was civil and respectful with the police at all times, unlike Tremblay;

• fourth, it was a Thanksgiving long weekend and Thompson understandably became concerned about the likelihood of being able to reach his lawyer, once the delays began to accumulate through the late afternoon and evening of the Sunday night (see, e.g. para. 26 above);

• fifth, Thompson had been arrested at 4:30 p.m. on the Sunday afternoon and he was asleep in his cell on all three of the occasions when the police first offered him a call to counsel at 2:35 a.m., 3:00 a.m., and 4:15 a.m. on the Monday morning. In my view, it was entirely reasonable to assume that his lawyer would also be asleep and unavailable at these times. As it turned out, Thompson’s assumption was accurate. When Det. Sgt. Choe called Ms. Salih at 5:27 a.m., she did not answer and he left a message;

• sixth, as in Black, the accused was charged with murder, the most serious offence in the Criminal Code. A telephone consultation with counsel in such a serious and relatively complex case would undoubtedly be much more effective in the morning, after the accused and his counsel had both had some sleep;

• seventh, as in Black there was no urgency whatsoever. Det. Sgt. Choe tried to suggest, during his evidence-in-chief, that he could not delay the interview due to the 24 hour requirement in s. 503(1)(a) of the Criminal Code for bringing an accused before a Justice of the Peace. By the end of cross-examination, Det. Sgt. Choe had conceded that there was no such urgency and that the interview of Thompson could have been conducted in the morning in sufficient time to comply with s. 503(1)(a). The Crown’s unsuccessful claim of urgency in Ross was considerably more sympathetic than any of the circumstances in the present case;

• eighth, Thompson had been kept in the dark as to why he had not been allowed a timely call to counsel. It is apparent that he was puzzled and concerned about these unexplained delays in implementing his s. 10(b) rights. In these circumstances, where his Charter rights had been suspended for ten hours and he did not know why, he particularly needed independent advice from counsel. The police should have been generous in allowing him sufficient time, given that they had deliberately created these circumstances and had not explained them to the accused (see paras. 26 and 33 above);

• ninth, the meeting between Det. Petrakis and Thompson at 2:35 a.m. concluded with a clear understanding that Thompson would be allowed to call counsel in the morning. Det. Petrakis stated, “fair enough … so you will have a chance to make the phone call, if you want to make the call a little later when it is morning time, you’ll have that opportunity.” Thompson twice replied, “okay”. Det. Petrakis is an experienced officer and he clearly believed that it was reasonable, in the circumstances, for Thompson to ask that his call to counsel take place in the morning. When Sgt. Panayotov attended in the cells shortly afterwards, at 3:00 a.m., his meeting with Thompson appeared to end with the same understanding, namely, that Thompson would call his lawyer in the morning (see paras. 38 and 41 above). Det. Sgt. Choe ought to have respected this twice-repeated resolution of the matter. In this regard, see R. v. Fountain (2017), 2017 ONCA 596, 351 C.C.C. (3d) 291 at paras. 19 and 33-6 (Ont. C.A.);

• tenth and last, when Sgt. Panayotov re-attended in the cells at 3:00 a.m., he advised Thompson for the first time that his lawyer, Ms. Salih, “called for you earlier.” Sgt. Panayotov offered to call her. Thompson replied, “it’s okay, I’ll call her in the morning, now that she is aware.” Sgt. Panayotov did not correct Thompson’s apparent misapprehension, that Ms. Salih already knew that he had been arrested and was in custody at 41 Division. Later in the morning, Det. Sgt. Choe repeatedly failed to correct Thompson’s mistaken beliefs about Ms. Salih’s awareness of his circumstances. It appears that Thompson’s decision to wait until the morning, before calling Ms. Salih, was influenced to some extent by his mistaken belief that the police had already called her and told her about his arrest and that she had called back (see paras. 41 and 46 above). It is understandable, in these circumstances, that Thompson could have reasonably believed that Ms. Salih would make herself available for a call from him in the morning, “now that she is aware.”

[67] When the above ten circumstances are considered in their totality, they overwhelmingly support the conclusion that Thompson was “reasonably diligent” in exercising his s. 10(b) rights when he repeatedly told the police that he would call Ms. Salih “in the morning”.

(iv) The duty to “hold off” eliciting evidence and waiver of s. 10(b) rights

[68] In light of the above finding – that Thompson had asserted his right to counsel and he was being “reasonably diligent” in exercising that right – the two “implementation duties” relating to s. 10(b) of the Charter were both engaged. In the well-known passage from Bartle set out above, these two duties are described as providing “a reasonable opportunity to exercise the right” and refraining “from eliciting evidence from the detainee until he or she has had that reasonable opportunity”.

[69] For the reasons set out above, the first “reasonable opportunity to exercise the right,” in the unusual circumstances of this case, was in the morning, after Thompson had time to sleep and when his lawyer would likely have been awake and available. Until this first “implementation duty” was carried out, the police were subject to the second “implementation duty” and were obliged to “refrain from eliciting evidence”. This second “implementation duty” came to be referred to as the “obligation to hold off.” See, e.g. R. v. Prosper (1994), 1994 CanLII 65 (SCC), 92 C.C.C. (3d) 353 at 375, 389, and 397 (S.C.C.), where the exact meaning and duration of the “holding off” period was the subject of some disagreement in the various judgements of the Court. What has never been the subject of disagreement is that questioning the accused, in order to obtain incriminating evidence, is prohibited during the “holding off” period. The root case describing this aspect of the duty to “hold off” is R. v. Manninen (1987), 1987 CanLII 67 (SCC), 34 C.C.C. (3d) 385 at 392 (S.C.C.) where Lamer J., as he then was, stated on behalf of the majority:

Further, s. 10(b) imposes on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel…For the right to counsel to be effective, the detainee must have access to this advice before he is questioned or otherwise required to provide evidence. [Emphasis added].

Similarly, in R. v. Ross, supra at p. 136, Lamer J. again stated on behalf of the majority:

As this Court held in Manninen, the police have, at least, a duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel. In my view, the right to counsel also means that, once an accused or detained person has asserted that right, the police cannot, in any way, compel the detainee or accused person to make a decision or participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until that person has had a reasonable opportunity to exercise that right. [Emphasis added].

[70] On the facts of the present case, there is no doubt that Det. Sgt. Choe’s interview of Thompson involved “questioning” and “attempting to elicit evidence” that “could ultimately have an adverse effect” on Thompson at trial, to paraphrase Manninen and Ross. Both Det. Sgt. Choe and Sgt. Panayotov agreed in their testimony that there was a plan to interview Thompson that night and that Det. Sgt. Choe was in a hurry to conduct the interview. In my view, this plan was in obvious violation of s. 10(b) of the Charter because it was contrary to the two “implementation duties” imposed on the police. In the absence of a waiver of s. 10(b) rights, Det. Sgt. Choe should never have commenced the interview at 4:15 a.m.

[71] The Crown submits that Thompson had waived his s. 10(b) rights, in the period after his 4:30 p.m. arrest on October 13, 2019 and during the interview with Det. Sgt. Choe that started at 4:15 a.m. on October 14, 2019. In particular, Ms. Battersby relies on Thompson’s repeated requests to speak to the homicide investigators. I have set out these requests in some detail, in the above summary of the facts in this case. I listened to the audio recordings repeatedly and carefully during the hearing, in order to ensure that I had an accurate record of what Thompson acutally said.

[72] Ms. Battersby fairly concedes that Thompson never expressly waived his s. 10(b) rights. She submits that the waiver should be implied from Thompson’s overall course of conduct. The standard for proof of an implied waiver of s. 10(b) rights is a high one. In his summary of the early case law in R. v. Bartle, supra at p. 301, Lamer C.J.C. stated on behalf of the majority:

Furthermore, the rights guaranteed by s. 10(b) may be waived by the detainee, although the standard for waiver will be high, especially in circumstances where the alleged waiver has been implicit: Clarkson, at pp. 217-9; Manninen, at p. 393; Black, at pp. 14-5; Brydges, p. 341, and Evans, at pp. 307-8.

[73] In R. v. Clarkson (1986), 1986 CanLII 61 (SCC), 25 C.C.C. (3d) 207 at 218-219 (S.C.C.), the accused was intoxicated when she agreed to provide a statement. It was held that she lacked sufficient awareness to satisfy the “clear and unequivocal” standard for waiver of s. 10(b) rights. R. v. Black, supra at pp. 15-16, involved an alcoholic accused and it is to similar effect. In R. v. Evans (1991), 1991 CanLII 98 (SCC), 63 C.C.C. (3d) 289 at 307 (S.C.C.), the accused was of “subnormal mental capacity” due to a childhood brain injury and he agreed to provide a statement after a lengthy period of “aggressive and, at times, deceptive interrogation.” It was held that he did not appreciate the consequences of making the statement or the effect of a waiver. None of the circumstances in Clarkson, Black, or Evans apply in the present case. Thompson appears to have been sober, clever, and experienced at the relevant time. Indeed, some of his conduct appears to have been calculated, given his careful and repeated inquiries as to whether he was being recorded in the cells and given the way he looked directly into the camera in the police car.

[74] The case that is most helpful, and that involves some similar circumstances to the present case, is R. v. Manninen, supra at 393. In that case, the accused asserted his right to counsel but the police proceeded to question him and obtain incriminating answers, in violation of the duty to “hold off.” Lamer J., as he then was, gave the unanimous judgement of the Court and stated the following in relation to the issue of waiver:

The Crown contends that there was no infringement of the right to counsel because the respondent had waived his right by answering the police officer's questions. While a person may implicitly waive his rights under s. 10(b), the standard will be very high (Clarkson, supra, at pp. 217-8 C.C.C.). In my view, the respondent's conduct did not constitute an implied waiver of his right to counsel. It seems that he did not intend to waive his right, as he clearly asserted it at the beginning and at the end of the questioning. Rather, the form of the questioning was such as to elicit involuntary answers. The police officer asked two innocuous questions followed by a baiting question which led the respondent to incriminate himself. In addition, where a detainee has positively asserted his desire to exercise his right to counsel and the police have ignored his request and have proceeded to question him, he is likely to feel that his right has no effect and that he must answer. Finally, the respondent had the right not to be asked questions, and he must not be held to have implicitly waived that right simply because he answered the questions. Otherwise, the right not to be asked questions would only exist where the detainee refused to answer and thus where there is no need for any remedy or exclusionary rule. [Emphasis added].

[75] Three of the above circumstances that the Court relied on in Manninen, in finding no implied waiver, also exist in the present case. First, it is clear that Thompson did not intend to waive his s 10(b) rights, as he repeatedly asserted his belief that he was not waiving his right to a “phone call” (see paras. 38 and 41 above). Second, Det. Sgt. Choe persisted in questioning him in the face of his immediate assertion that he wanted to speak to counsel (see para. 46 above). And third, Thompson had a right not to be questioned and so there is a certain circularity in implying waiver on the basis that he responded to questions that had already violated his s. 10(b) rights.

[76] In addition to the above three factors set out in Manninen, there are additional circumstances in the present case that argue against a finding of implied waiver. First, Thompson undoubtedly wanted to speak to the homicide investigators in the time period after his arrest. However, he made these requests in conjunction with repeated requests to speak to counsel. I am not satisfied that Thompson’s desire to speak to “the detective” superceded or supplanted his desire to speak to counsel (see, e.g. para. 18 above). In addition, it is apparent that what Thompson wanted was information from the investigators about the murder for which he had just been arrested. He wanted to know the time and place of the murder, and who had been murdered, and he wanted to know how the police had come to believe that he was implicated (see, e.g. paras. 12, 15, and 46 above). This desire to obtain investigative information from the police, does not infer a waiver of his right not to be questioned by the police until after he had spoken to counsel. Indeed, Thompson became suspicious that Det. Sgt. Choe was playing “games”, when Det. Sgt. Choe stopped providing information and started asking questions. At this point, Thompson reasserted his right to counsel and Det. Sgt. Choe reverted to his initial strategy of simply giving Thompson information (before eventually reverting to his real objective, namely, to question Thompson). These subtle shifts in the interview, from providing requested information to Thompson, and then asking questions, are set out above in para. 46.

[77] One final factor relating to the issue of waiver arises from Det. Sgt. Choe’s testimony to the effect that he believed Thompson had “changed his mind” about exercising his right to counsel. I am sceptical of this asserted belief because Det. Sgt. Choe gave significantly inconsistent evidence on the point, as summarized above at paras. 39 and 42. Nevertheless, if Thompson had truly “changed his mind” and no longer wished “the immediate right to counsel without delay” (as the Prosper issue was described in Fountain), then a complete and accurate Prosper warning was required. Det. Sgt. Choe’s attempt to give a Prosper warning was deficient because it failed to include the important advice that the police would be obliged to stop any questioning of Thompson, while giving him a further reasonable opportunity to call his lawyer. The unsatisfactory record in relation to this issue is another factor that argues against a finding of implied waiver. See: R. v. Fountain, supra at paras. 49-55.

[78] In all of the above circumstances, I am not satisfied that the Crown has met the high standard for establishing an implied waiver of s. 10(b) rights. In the result, I am satisfied that there was a clear violation of s. 10(b) of the Charter when Det. Sgt. Choe questioned Thompson and attempted to elicit incriminating evidence from him during the 4:15 a.m. interview, before Thompson had a reasonable opportunity to speak to counsel.

(v) Exclusion of evidence pursuant to s. 24(2) of the Charter

[79] In my view, this is a straightforward case for exclusion of evidence pursuant to s. 24(2) of the Charter. The first two sets of Grant factors argue strongly in favour of exclusion and the third factor is relatively neutral. See: R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 (S.C.C.).

[80] In terms of the seriousness of the s. 10(b) violation in this case, the duty to “hold off” until a “reasonable opportunity” has been provided to speak to counsel is a longstanding obligation that is well-known to the police. Given the clarity of this obligation, and given Det. Sgt. Choe’s inconsistent explanations for why he violated such a well-known obligation, I have some concerns about his good faith. In these circumstances, the gravity of the violation was at the more aggravated end of the continuum. See: R. v. Harrison (2009), 2009 SCC 34, 245 C.C.C. (3d) 86 at para. 26 (S.C.C.).

[81] As to the impact of the s. 10(b) violation, it was significant. Thompson provided self-incriminating evidence to the police before he had a reasonable opportunity to speak to counsel. These are particularly fundamental Charter values that were being compromised. See: R. v. Grant, supra at paras. 95 and 96; R. v. Fountain, supra at paras. 61 and 65.

[82] Finally, the third set of Grant factors is relatively neutral in this case. The Crown does not seek to tender Thompson’s statement as part of its case in-chief. It only seeks a ruling as to admissibility so that the statement could potentially be used in cross-examination, if Thompson testifies. In addition, the statement would require substantial editing as it is replete with opinions about Thompson and about the evidence in the case, as well as assertions about the right to counsel and exhortations of various kinds. In short, the statement is not essential to the Crown’s case and it contains a lot of irrelevant content.

[83] Balancing the three sets of Grant factors satisfies me that admission of the statement in evidence would harm the long-term repute of the administration of justice. Accordingly, the statement is excluded.

D. CONCLUSION

[84] For all the above reasons, I was satisfied that Thompson’s statement to Det. Sgt. Choe at 4:15 a.m. on October 13, 2019 was obtained in violation of s. 10(b) of the Charter and that it should be excluded pursuant to s. 24(2).

M.A. Code J.

Released: March 3, 2022.

COURT FILE NO.: CR-20-30000477-0000

DATE: 20220303

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

PETER WIGHT, O’NEIL THOMPSON and FANTASIA HOO-HING

Accused

REASONS FOR JUDGEMENT ON ADMISSIBILITY OF THOMPSON’S STATEMENT

M.A. Code J.

Released: March 3, 2022