COURT FILE NO.: CR-21-1388-00 DATE: 2023 06 01

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Robin Prihar for the Crown

• and –

JUDE EGWU Marianne Salih for the accused

HEARD: April 3-4, 2023

THERE IS A BAN ON PUBLICATION OF ANYTHING THAT WOULD REVEAL THE IDENTITY OF THE COMPLAINANT. THIS RULING COMPLIES WITH THIS BAN AND CAN BE PUBLISHED

RULING

D.E HARRIS J.

[1] Mr. Egwu was arrested for sexual assault and immediately afterwards gave a statement to the police. A blended voir dire was held to determine admissibility of the statement. The Crown argued voluntariness; Mr. Egwu urged Charter remedies.

[2] The issue arises in the context of the well-trodden area of the right to counsel upon arrest or detention. However, the circumstances are atypical and, hopefully, not likely to be repeated. Upon his arrest, Mr. Egwu invoked his right to counsel. He chose to speak to a friend who had been called to the bar a year or two before. The conversation with counsel was very short. In that conversation, it is agreed that Mr. Egwu did not receive any information from counsel with respect to his right to silence or his right against self-incrimination. In fact, he did not receive legal advice of any kind.

[3] The determination of the question of the admissibility of Mr. Egwu’s police statement does not directly involve the section 10(b) Charter right to counsel. The police complied with both the informational and implementational components of the s. 10(b) right. The failure was of counsel, not the police. Nonetheless, the function of s. 10(b) to protect detainees in the investigatory process and the principles and values it embodies are central to the question of admissibility.

EVIDENTIARY BACKGROUND

[4] The lead up to what happened here occurs daily many times in Canada. Officer Anderson received a complaint that a woman had been sexually assaulted by Mr. Egwu. She was interviewed by him on the telephone. Officer Anderson then called Mr. Egwu on the phone several days later, on November 25, 2020, asking him to come in. He was told he was going to be charged. Officer Anderson told Mr. Egwu that he might want to talk to a lawyer first. This advice is quite often given by the police in Peel Region. It is a prudent measure to ensure fairness to the accused and is likely to be supportive of Crown arguments at trial on the issues of voluntariness and the right to counsel.

[5] Mr. Egwu did contact a lawyer before he went in. She is a casual friend. Mr. Egwu had met her initially in 2016. Both are Nigerian. Mr. Egwu is in the car export business, and at one point helped his friend export a car to Nigeria. At the time, the friend was in law school. By 2019, the friend had been called to the bar. Her practice is in the areas of family law and immigration law. She knew that Mr. Egwu was a permanent resident and was working towards becoming a citizen. She told Mr. Egwu that if he ever needed help with immigration, he should contact her.

[6] When Mr. Egwu got off the phone with Officer Anderson, he called his lawyer friend who told him to turn himself in and find out from Officer Anderson who was making the allegations against him. That was the extent of the conversation.

[7] Mr. Egwu attended and was arrested for sexual assault at about 6:30 p.m. the same day, November 25, 2020. Officer Anderson gave Mr. Egwu the primary caution and his right to counsel in the usual form. Mr. Egwu invoked the right to counsel and gave Officer Anderson the phone number of the lawyer. Officer Anderson left her a voice mail and she called back about 10 minutes later. The lawyer said that she would attempt to get a colleague to deal with Mr. Egwu’s phone call; she was too busy. Ultimately the colleague could not be found. The lawyer spoke to Mr. Egwu herself.

[8] The conversation can be seen although not heard on the video of the interview. The microphone in the interview room was turned off to give Mr. Egwu the necessary privacy. The officer was not in the room. The conversation lasted 1 minute and 25 seconds. Afterwards, Officer Anderson asked Mr. Egwu whether he was satisfied with the advice given by counsel. Mr. Egwu said that he was. He said that although she did not go into detail, his lawyer had told him that he was going to be released on bail and that he was to make an appointment to meet her after release. Mr. Egwu declined an offer from the officer to speak to the colleague the lawyer was attempting to put him in contact with earlier.

[9] In his testimony on the voir dire, Mr. Egwu waived solicitor client privilege and related the conversation he had with the lawyer. He said that he called the lawyer because he knew her. In Nigeria, where he was born and had lived for a number of years, lawyers do not specialize. He did not think to contact a criminal lawyer.

[10] According to his evidence, counsel did not inform him that he had the right to silence, did not have to speak to the police and that this refusal to talk could not be used against him. The lawyer only said that the officer had told her that Mr. Egwu would be released from the police station and that he should make an appointment to see her. Mr. Egwu then gave the police officer a lengthy exculpatory statement.

[11] After Mr. Egwu’s testimony, Ms. Prihar communicated with the lawyer and advised her that Mr. Egwu had testified on this voir dire and waived solicitor-client privilege with respect to their conversation on November 25, 2020. Ms. Prihar did not divulge the contents of his evidence. The lawyer was free to speak to Ms. Prihar in the circumstances: R. v. Dunbar and Logan (1982), 67 C.C.C. (2d) 192 (Ont. C.A.). The lawyer was asked what legal advice she gave Mr. Egwu. Her answer and the other circumstances of Ms. Prihar’s conversation with her were distilled into an agreed statement of fact. With respect to the question of what legal advice the lawyer gave Mr. Egwu, the agreed statement of fact reads,

[The lawyer] responded that she did not give him legal advice. She further advised that she does not practice criminal law, and that she referred Mr. Egwu to another lawyer. She advised she did not have notes of the conversation.

[12] Based on Mr. Egwu’s evidence and this agreed statement of fact, it is clear that when Mr. Egwu spoke to the lawyer after being arrested and detained on the charge of sexual assault, she did not advise him of his right to silence and right against self-incrimination nor the consequences of speaking to the police. No legal advice was given. That is the central fact around which this application turns.

1. THE FUNDAMENTAL IMPORTANCE OF THE RIGHT TO COUNSEL

[13] The right to counsel upon arrest or detention protects and facilitates the right to silence and the right against self-incrimination - fundamental rights in our constitutional firmament. In R. v. White, [1999] 2 S.C.R. 417, Iacobucci J. said this about the principle against self-incrimination:

41 The principle against self-incrimination was described by Lamer C.J. in Jones, supra, at p. 249, as “a general organizing principle of criminal law”…

42 In Jones, supra the principle against self-incrimination was defined as an assertion of the fundamental importance of individual freedom. As the Chief Justice stated, at pp. 248-49:

The principle against self-incrimination, in its broadest form, can be expressed in the following manner:

...the individual is sovereign and ... proper rules of battle between government and individual require that the individual...not be conscripted by his opponent to defeat himself.... (Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), § 2251, at p. 318.)

Any state action that coerces an individual to furnish evidence against him- or herself in a proceeding in which the individual and the state are adversaries violates the principle against self-incrimination. Coercion, it should be noted, means the denial of free and informed consent.

Similarly, in S. (R.J.), supra, at para. 81, is the reference to “the principle of sovereignty embodied in the idea that individuals should be left alone in the absence of justification, and not conscripted by the state to promote a self-defeating purpose”.

43 The definition of the principle against self-incrimination as an assertion of human freedom is intimately connected to the principle’s underlying rationale. As explained by the Chief Justice in Jones, supra, at pp. 250-51, the principle has at least two key purposes, namely to protect against unreliable confessions, and to protect against abuses of power by the state. There is both an individual and a societal interest in achieving both of these protections. Both protections are linked to the value placed by Canadian society upon individual privacy, personal autonomy and dignity: see, e.g., Thomson Newspapers, supra, at p. 480, per Wilson J.; Jones, supra, at pp. 250-51, per Lamer C.J.; and Fitzpatrick, supra, at paras. 51-52, per La Forest J. A state which arbitrarily intrudes upon its citizens’ personal sphere will inevitably cause more injustice than it cures.

44 The jurisprudence of this Court is clear that the principle against self-incrimination is an overarching principle within our criminal justice system, from which a number of specific common law and Charter rules emanate, such as the confessions rule, and the right to silence, among many others … Within the Charter, the principle against self-incrimination is embodied in several of the more specific procedural protections such as, for example, the right to counsel in s. 10(b), the right to non-compellability in s. 11(c), and the right to use immunity set out in s. 13 ... [Emphasis added]

[14] The right to silence is a bedrock protection for a suspect at the investigative stage. It is analogous to the principle, a facet of the right against self-incrimination and the presumption of innocence, that an accused need not call evidence or prove anything at trial: Dubois v. The Queen, [1985] 2 S.C.R. 350, at p. 357.

[15] Counsel stands as the guardian of a detainee’s constitutionalized right to silence upon detention. Justice McLachlin (as she then was) said in R. v. Hebert, [1990] 2 S.C.R. 151, at pp. 176-177:

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

The guarantee of the right to consult counsel confirms that the essence of the right is the accused's freedom to choose whether to make a statement or not. The state is not obliged to protect the suspect against making a statement; indeed it is open to the state to use legitimate means of persuasion to encourage the suspect to do so. The state is, however, obliged to allow the suspect to make an informed choice about whether or not he will speak to the authorities. To assist in that choice, the suspect is given the right to counsel. [Emphasis added.]

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

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

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

[18] The right to silence and the freedom to chose to relinquish it extends beyond the conduct of the police vis a vis the suspect. It is a basic principle of fairness. In R. v. Whittle, [1994] 2 S.C.R. 914, the leading case on the requirement of an operating mind to prove voluntariness, Justice Sopinka wrote:

30 A decision in this case requires a consideration of elements of the confession rule, the right to silence and the right to counsel. While the confession rule and the right to silence originate in the common law, as principles of fundamental justice they have acquired constitutional status under s. 7 of the Charter. The right to counsel is a specific right expressly recognized in s. 10(b) of the Charter. Although each is a distinct right they are interrelated and operate together to provide not only a standard of reliability with respect to evidence obtained from persons suspected of crime who are detained but fairness in the investigatory process. Although the confession rule in its traditional formulation had as its raison d’être the reliability of the confession, a strong undercurrent developed which also supported the rule in part on fairness in the criminal process. See Hebert, supra, per McLachlin J., at p. 171. A common element of all three rules is that the suspect has the right to make a choice.

31 The preoccupation of the common law and Charter cases in preserving for the suspect the right to choose has been in relation to state action. Did the action of police authorities deprive the suspect of making an effective choice by reason of coercion, trickery or misinformation or the lack of information? The issue in this case is whether, absent any conduct by the police, the suspect is deprived of the ability to choose by reason of mental incapacity. A finding of incapacity would exempt the suspect from participation in the ordinary processes of investigation. [Emphasis added]

[19] The jurisprudence recognizes that the function of the right to counsel is as a corrective to the power of the state and the almost total control assumed by the police over a suspect under detention: R. v. Nguyen, 2008 ONCA 49, [2008] O.J. No. 219 at para. 21. In R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 21 the Court wrote:

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

Also see R. v. Lafrance, 2022 SCC 32, at paras. 78-79; R. v. Suberu, 2009 SCC 33, at para. 40.

[20] Without counsel informing the accused of their right to counsel and right to silence prior to police questioning, most accused will be unaware of their legal and constitutional entitlement to remain silent. The choice to speak or not to speak will not be apparent. There is a purely pragmatic function to advice from counsel: R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-43. It is a matter of fairness; it informs the detainee of fundamental rights that may well not be known or understood otherwise: R. v. Brydges, [1990] 1 S.C.R. 90, at pp. 202-203.

[21] As was held by Justice Doherty in R. v. H. (T.G.), 2014 ONCA 460,

24 A person who is arrested or detained by the police loses core components of the right to liberty. In addition, the detainee's ability to make a free and informed decision whether to speak with or comply with police requests and demands is compromised at a time when that decision may be crucial to the detainee's legal interests and future freedom. … In effect, s. 10(b) provides for the insertion of counsel for the detainee into the power imbalance created by the police detention: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.), at paras. 26-29; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 (S.C.C.), at paras. 37-40.

25 Suberu explained the purpose of s. 10(b), at para. 40:

... the purpose of s. 10(b) is to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees [to] regain their liberty, and guard against the risk of involuntary self-incrimination.

[22] As Justice Doherty later said, in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 45:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

[23] An accused under detention is in a vulnerable and largely dependant position as against the state. The psychological pressures upon a detained person to speak to the police are powerful. At the same time, in law the detainee is under no obligation to speak to the police. The right to counsel crucial: it is the means by which the right to silence becomes known and, being known, can be exercised. In a process stacked in favour of the police, it is the one counter measure at the disposal of a detained person. It protects a value as fundamental as any in the criminal process; the notion that it is for the state to construct a case against the accused and that the accused ought not to be unfairly enlisted to participate in his or her own conviction.

[24] When a detainee is unaware of the right to silence, the only real access he has to knowledge and exercise of his rights, there is a basic unfairness in the constitutional balance set between the state and the individual.

2. CASES CONSIDERING LEGAL ADVICE UPON DETENTION

[25] There are several cases, most out of British Columbia, which are of some assistance in examining the advice of counsel upon arrest. In R. v. Osmond, 2007 BCCA 470, the accused was under arrest for murder. He spoke to duty counsel. Duty counsel testified that in a short conversation, he told the appellant about his right to silence and not to speak to anyone about the allegations. He testified that he was unconcerned about the nature of the allegations themselves; his practice was to give the same pithy advice whether it was a shoplifting case or a murder case.

[26] The appellant spoke to the police and made an ill-advised attempt to discover what evidence they had against him. The Court commented at para. 51:

Had he discussed this approach with a lawyer with more time and interest in his case, he would have been told that he should not try to persuade the police that he is innocent, and that he should let a lawyer gather particulars from the police.

[27] The Court of Appeal held that several Supreme Court of Canada cases required that an arrestee be informed of more than just his bare right to silence. He must also be informed of “how to exercise that right”: see paras. 53-55. Without considering whether the failure of counsel constituted state action, the Court of Appeal found a violation of the appellant’s section 10(b) Charter right and excluded the statement under section 24(2) of the Charter. A new trial was ordered.

[28] A few years after Osmond, the British Columbia Court of Appeal revisited the issue in R. v. Ashmore, 2011 BCCA 18. Justice Frankel did not agree with the appellant’s arguments that the advice of counsel was inadequate. Counsel had provided the usual information about the right to silence and the right not to co-operate with the police but also how to assert those rights: paras. 63-65. Justice Frankel mentioned the Crown’s argument that Osmond’s “proposition that the adequacy of the legal advice given to a detainee can generally be subjected to judicial scrutiny” may have been overtaken by the statements of the Supreme Court in Willier, at paras. 41-42. It was unnecessary in the circumstances to decide the issue because of Justice Frankel’s opinion that the advice given was adequate: see paras. 62-63.

[29] The same result was arrived at in R. v. Zhao, 2019 BCSC 1056. The judge there commented in passing, at para. 206, that although the Supreme Court did not delve into the issue,

When R. v. Willier was at the Alberta Court of Appeal level (2008 ABCA 126) that Court had held, at para. 31, that “the quality of the advice, or lack thereof, is not per se a basis for the exclusion of a statement under s. 10(b) of the Charter”.

[30] There are other cases in the area of some interest. In R. v. Zhang, 2004 BCSC 826, at paras. 93-97, it was decided that the advice given was not meaningful and there was a breach of section 10(b). In R. v. Czorny, [1996] O.J. No. 3410 (Ont. Gen. Div.), the lawyer had told the accused in a drinking and driving case to not do the sobriety tests and to “just blow.” On appeal, the court held that the advice was inadequate and constituted a violation of section 10(b), the consequence of which was the exclusion of evidence.

[31] One of the more important cases is that of Justice Nordheimer (as he then was) in R. v. Braithwaite, [2002] O.J. No. 1955 (Ont. S.C.). Holding that the legal advice which included the right to remain silent was adequate, he said:

15 It may be that there are cases, such as Czorny would appear to have been, where the evidence shows that the advice given is so bereft of inquiry and analysis that it could be characterized as being equivalent to not having been given advice at all. That is not this case.

18 I do not believe that section 10(b) of the Charter should involve the court in embarking on a qualitative analysis of the advice given. Section 10(b) of the Charter guarantees the right to counsel. It does not guarantee the quality of the counsel (except, perhaps, for basic competency) or of his or her advice. [Emphasis added]

[32] The judgments following Braithwaite – R. v. Menard, 2010 BCSC 1416, at para. 40; R. v. Therrien, 2006 BCSC 1739, at paras. 63-76; and R. v. Stubling, 2002 BCPC 642, at para. 16 – all quote paragraph 18 and the comment exempting “basic competency” from the admonition against scrutinizing the advice of counsel.

[33] I need not finally determine whether the cases concluding that the advice of counsel was inadequate were correctly decided. It is arguable that some of the decisions put too high a responsibility on counsel. In addition, it is of some concern that the judgments in this area often give no consideration to the issue of whether the legal advice was given by a state actor. If there is no state action involved, then the Charter is not implicated and the evidence is not obtained in violation of the Charter as it must be for a section 24(2) remedy of exclusion to be imposed. Zhao and Braithwaite are exceptions where there was some consideration of the issue. In those cases, however, it was unnecessary to come to a conclusion on the point as the judges found that the advice given was adequate and there could not have been a Charter breach in any case.

[34] The cases in which some advice was given but the court determined that the advice was inadequate are of some importance. It is worth noting that the holdings in Osmond, Zhang and Czorny treat the violation of the right to counsel and the right to silence seriously and exclude the evidence obtained. These cases reinforce the conclusion that the right to silence upon detention is fundamental to the fairness of the subsequent trial.

THE PRESENT CASE

[35] This is the only case in the jurisprudence in which the lawyer contacted in the exercise of the detainee’s implementational component of section 10(b) gave no legal advice of any kind. The Braithwaite line of authority, while restricting scrutiny of the quality or content of counsel’s advice, tends to suggest that a lack of “basic competency” or a total lack of advice, is a proper subject for judicial scrutiny.

[36] In this case, it is incontrovertible that the lawyer lacked “basic competency” as the term was used by Justice Nordheimer in Braithwaite. She rendered ineffective assistance under the performance criterion applicable to lawyers: R. v. G. D. B., 2000 SCC 22, at para. 26. The lawyer also violated the Law Society of Ontario’s Rules of Professional Conduct with respect to the duty of competence in Rule 3.1-2. She appeared hesitant to give advice personally, suggesting that she would get a colleague to talk to Mr. Egwu. However, when she was unable to put the colleague on the phone, she ought not to have taken the task on herself. Commentary 6 to the Rule says:

[6] A lawyer must recognize a task for which the lawyer lacks competence and the disservice that would be done to the client by undertaking that task. If consulted about such a task, the lawyer should

(a) decline to act;

(b) obtain the client's instructions to retain, consult, or collaborate with a licensee who is competent for that task; or

(c) obtain the client's consent for the lawyer to become competent without undue delay, risk or expense to the client.

[37] This case necessitates a decision on the suggestion floated in Braithwaite that counsel lacking basic competency in providing advice to a detainee might raise a concern for judicial consideration. It my view, this question can only be answered in the affirmative.

[38] The leading cases on the right to silence place the right to counsel at the centre of the fundamental protections for the accused in the investigative stage of the criminal process. As a thread going through the investigative process and the trial, the right against self-incrimination – the source of the right not to talk to the police – linked as it is with the presumption of innocence, is a cornerstone of our system of criminal justice. The articulation of the role and importance of this right extends beyond and stands independent of the application of the section 10(b) right itself.

[39] The Crown’s argument in Ashmore that the Supreme Court in Willier at paras. 41-42 foreclosed scrutiny of the advice given by counsel to a detainee is correct as far as it goes. The Supreme Court held that the police cannot be expected to monitor the quality of counsel’s advice. If the accused does not complain, the police can assume that the advice received is adequate. But that is entirely different from a situation like this one in which no legal advice of any kind is given. In this case, Officer Anderson went so far as to ask Mr. Egwu whether he was satisfied with the advice he received. Mr. Egwu said he was satisfied, conclusively demonstrating that, like many detainees, he had no appreciation for the role of counsel or the existence of the right to silence and the choice he had to speak to the police or not. The police cannot be faulted but the unfairness exists independent of them.

[40] There is no need to embark on a detailed exploration of what counsel ought to say to an accused who is detained. “Basic competency” is mandatory but there is a risk that the standard may be set too high. The accused must be told that they have the right to silence, the right not to incriminate themselves and, to put it into as tangible and easily understood terms as possible, that they do not have to talk to nor co-operate with the police. The refusal to talk cannot be used against them. The accused should also be told that if they do choose to speak, what they say can be used against them by the prosecution at trial: R. v. Smith, [1991] 1 S.C.R. 714, at pp. 727-728; R. v. Brunczlik (1995), 103 C.C.C. (3d) 131 (Ont. S.C.), at para. 74.

[41] A skilled lawyer, of course, will go well beyond this bare minimum with the ultimate objective of discouraging the accused from speaking to the police. The Court of Appeal has said in R. v. Badgerow, 2008 ONCA 605, at para. 50,

The right to seek advice from counsel of choice on arrest or detention is not limited to receiving perfunctory advice to keep quiet. Rather, it entitles an accused to obtain sufficiently meaningful advice to enable him or her to make an informed choice concerning whether to exercise his or her right to silence: see R. v. Hebert (1990), 57 C.C.C. (3d) 1 (S.C.C.).

[42] There are three main areas that may be elaborated upon when conveying the right to silence: 1) The detainee should be given a preview of the techniques and methods the police will use to coax the accused to talk to them; 2) Counsel should delve into the accused’s mental state which might make them more susceptible to open up to the police and try to explain their way out of the charges; and 3) Further instruction can be provided on the applicable law, such as the fact that anything said will generally only be admissible at the request of the prosecution, not the defence. Not only inculpatory statements but exculpatory statements too are very much against the accused’s interest. A primer can be found in the Zhao reasons where the accused called a defence lawyer as an expert to testify about best practices in this area: paras. 85-126.

3. THE INEFFICACY OF COUNSEL WAS NOT ATTRIBUTABLE TO THE STATE

[43] The Charter of Rights and Freedoms restricts the action of government as it intersects with the rights and freedoms of individuals. Sections 32(1)(a) and (b) of the Charter expressly state that the Charter only applies to the government of Canada and the government of each province. It is not possible to construe the lawyer’s advice to Mr. Egwu as a form of government action. Although the informational and implementational procedures were developed under the auspices of section 10(b) of the Charter, the content of legal advice under the implementational component remains a private, not a state, function.

[44] Both components of the 10(b) right were complied with by Officer Anderson. The crux of the problem is the lawyer’s non-advice. That cannot be laid to rest at the government’s doorstep and it does not constitute a Charter violation.

[45] In Braithwaite, Justice Nordheimer held that even when state-funded duty counsel has given the advice, the Charter should not apply. He said, at para. 17:

The other troublesome aspect of this case is whether the trial judge was correct in holding that the Charter applied to this situation because "the state is instrumental in providing and facilitating that legal advice" and that therefore, "the state is in some way responsible for the advice that is given". I find the sweeping nature of that statement to be difficult to accept. For one thing, it would result in a situation where a person who called duty counsel and received inadequate advice would have a Charter remedy but a person who contacted his or her personal private lawyer and received inadequate advice would not. It also seems to me to turn the right to counsel into a guarantee by the state of the advice given. That is a significant extension of the right granted by section 10(b) which I do not consider is warranted. By way of example, if the state is to be held to warrant the advice given whenever it is "instrumental" in providing or facilitating that advice, then it would seem to follow that the state would become responsible for the quality of all advice given by any lawyer who acts on a legal aid certificate.

[46] That is persuasive. While duty counsel may be funded by the state, that has no effect whatsoever on their actions or advice. They act independently and are officers of the court. The fact they are funded by the government does not alter or affect what they do: see by analogy R. v. Broyles, [1991] 3 S.C.R. 595, at pp. 610-611.

4. THE PRIMARY CAUTION GIVEN TO MR. EGWU

[47] Ms. Salih also took aim at the primary caution given to Mr. Egwu. Officer Anderson testified that he gave Mr. Egwu the primary caution upon arrest and that Mr. Egwu said he understood.

[48] Officer Anderson read the primary caution from the printout on the inside cover of his notebook. It is the same as given by all Peel Regional Police officers. He said,

You are charged with sexual assault. You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you understand?

[49] This wording of the primary caution is common and has been referred to in passing in many leading cases with no criticism of its wording: see e.g. R. v. Beaver, 2022 SCC 54, at para. 59; R. v. Singh, 2007 SCC 48, at para. 31. Mr. Egwu in his evidence said that although he told the officer that he understood, he did not appreciate that the caution meant that what he told the police officer could be used against him at a trial. He testified to not having any legal background and never having been through a trial before.

[50] Ms. Salih contrasted the primary caution and the “given in evidence” language with the warning from Miranda v. Arizona, 384 U.S. 436 (1966), telling the arrestee that anything said by them “may be used against you in court.” She argued that this was plainer, clearer language. It is true that the British Columbia Court of Appeal has held that this type of language “has the virtue of being realistic”: R. v. Raines, 1973 CarswellBC 276, 11 C.C.C. (2d) 336 (B.C.C.A.), at para. 4 (Carswell).

[51] In “On the Need to Ensure Better Comprehension of Interrogation Rights” by Joseph Eastwood, Brent Snook, Kirk Luther, (2014) 18 Can. Crim. L. Rev. 171, the authors summarize recent studies concerning interrogation and note the difficulty in comprehending the “given in evidence” phraseology:

176 There are many potential factors that contribute to the observed low levels of caution comprehension in adults. One glaring problem pertains to the “legalese” nature of the cautions. Indeed, one reading of any Canadian police caution is likely to lead to the thought that the caution was created to meet legal criteria, but not to meet comprehension criteria. This potential complexity explanation was examined recently through an empirical analysis of Canadian police cautions [footnote omitted]. A total of 38 right to legal counsel and 38 right to silence counsel cautions were obtained from Canadian police organizations. The cautions contained a number of features that resulted in them being classified as too difficult for the average Canadian to understand. … The silence cautions, although less complex overall [than the right to counsel], also contained phrases not well understood by the general public (e.g., given in evidence). [Emphasis added]

[52] In “When in Doubt, Be Compliant: The Social Dynamics of the Right to Silence” (2018) 66 C.L.Q. 41 by C. Lindsay Fitzsimmons and Timothy E. Moore, the authors write,

The phrase “given in evidence” is legal jargon that could easily be misinterpreted to mean that an exculpatory statement could be put on the record.

[53] I take this to mean that the caution may be misleading and be interpreted as encouraging exculpatory statements to the police. Exculpatory statements of an accused are generally not admissible on behalf of an accused person as they are self-serving and prior consistent statements: see R. v. Edgar, 2010 ONCA 529, leave to appeal refused, [2010] S.C.C.A. No. 466. In reality, making an exculpatory statement to the police is more likely to hurt an accused than it is to help him.

[54] The primary caution must be clear and comprehensible from the disadvantaged position of a detainee: Lafrance, at paras. 86-87. The “given in evidence” nomenclature is odd and is derived from old English case law: see “Admissions in Criminal Cases” by C. C. Savage, 1962-1963 5 C.L.Q. 49. For the legally trained, looking at it in context, it is reasonably clear that what is meant is that anything said by the detainee can be admitted against him or her at trial. But for the layperson at whom it must be designed and directed at, it is not crystal clear. It is archaic and obscure. A statement to the police is itself evidence and so, it must be asked, what is meant that it can be “given in evidence?” Given in evidence when and where? It seems redundant and fails to clearly convey the detrimental consequence of talking to the police. “Given at trial” or “in court” would be an improvement. “Against you at trial” or “in court” would be as well.

[55] The primary caution on its face may well be adequate in all but rare situations. And there are available inferences on this record which might lead to a conclusion that Mr. Egwu understood the right to silence and that if he spoke, what he said could be used in court against him. The circumstances would have left a detainee with the general impression that this was a serious matter. Mr. Egwu was told that the interview was being videotaped. Awareness of the interview being recorded was relied on in R. v. Tessier, 2022 SCC 35, at para. 92, to show that the detainee knew that what he said could be used in evidence.

[56] After some initial doubts, however, I believe Mr. Egwu that the meaning and effect of the primary caution was not clear to him. He speaks English quite well but it is his second language. He was under significant stress while under detention in the police station. He was not expecting to be detained and to be in the complete control of the police. Mr. Egwu has no familiarity with the criminal justice system and has never been under detention before. It is apparent that he was taken aback by the allegation against him. That he told Officer Anderson that he was happy with the non-advice from the lawyer is an indication of his disorientation and lack of understanding of his basic rights.

[57] Many would have been skeptical about his evidence that his lawyer gave him no advice whatsoever but subsequently, this was confirmed by the lawyer herself. This operates as some confirmation of Mr. Egwu’s truthfulness although of course it is far from determinative.

[58] In light of Mr. Egwu’s circumstances and the wording of the primary caution, I conclude it is unlikely that he had an appreciation from the primary caution that he did not have to speak to the police and that if he did, that whatever he said could be used against him.

[59] The salutary benefits of the primary caution did not sink in because of Mr. Egwu’s lack of comprehension. That was significant and augments the problem of the lack of advice from counsel. In Tessier, the Court said,

75… there is no doubt that a caution can contribute to ensuring that an investigation is conducted fairly, especially where a suspect is detained and in a state more prone to making involuntary statements. … As Charron J. explained, state authorities control the detainee who is in a more vulnerable position and cannot walk away. The fact of detention alone may cause a person to feel compelled to make a statement (para. 32; see Grant, at paras. 22 and 39; Hebert, at pp. 179-80). The caution is required to attenuate the informational deficit in the face of heightened risk and vulnerability ... Fairness concerns are manifest once an individual is targeted by the state.

79 … the vulnerability and legal jeopardy faced by detainees cement the need for a police caution. Fairness commands that they know of their right to counsel and, by extension, of their right to remain silent so that they can make an “informed choice” whether or not to participate in the investigation (I borrow the expression “informed choice” from Singh, at para. 33). The balance courts seek to achieve in applying the confessions rule in this context tilts in favour of protecting the rights of the detained person and of limiting society’s interest in the investigation of crime.

5. SHOULD THERE BE A REMEDY?

[60] Mr. Egwu’s statement to the police, in the words of section 24(2) of the Charter – the exclusion provision – was not “obtained in a manner that infringed or denied any rights or freedoms guaranteed” by the Charter. The Charter does not apply as the germ of the problem was not as a consequence of state action or inaction.

[61] In R. v. Harrer, [1995] 3 S.C.R. 562, the majority of the Court per LaForest J. held that evidence can be excluded under the common law, even though not obtained in violation of the Charter, if its admission would render a trial unfair contrary to section 11(d) or section 7 of the Charter. The concurring judgment of McLachlin J. (as she then was) premised exclusion under the common law or section 24(1) of the Charter. She went on to write:

44 Whether a particular piece of evidence would render a trial unfair is often a matter of some difficulty. A distinction must be made at the outset between unfairness in the way a statement was obtained and an unfair process or trial. … The point is simply this: unfairness in the way evidence is taken may affect the fairness of the admission of that evidence at trial, but does not necessarily do so. This is true for Charter breaches; not every breach of the Charter creates an unfairness at trial which requires exclusion of the evidence thereby obtained: R. v. Collins, [1987] 1 S.C.R. 265, at p.284. It must also be true for irregularities that do not constitute Charter breaches.

45 At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused’s point of view: R. v. Lyons, [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused.

[62] Subsequent authority has reinforced the capacity of section 24(1) of the Charter to exclude evidence to safeguard trial fairness: White, at para. 89; R. v. Bjelland, 2009 SCC 38; R. v. Spackman, 2012 ONCA 905, at paras. 99-104; R. v. B. (D.M.), 193 C.C.C. (3d) 409 (Ont. C.A.), at para. 4.

[63] In my view, there was an unfairness in taking Mr. Egwu’s statement to the police while under detention. Mr. Egwu was deprived of the knowledge of his right to silence and how any statement he might make would be used by the prosecution at trial. The primary cause was the ineffective assistance of the lawyer during the exercise of the section 10(b) right. Mr. Egwu’s failure to fully appreciate the primary caution also impacted on his knowledge and understanding of his right to silence. Both the right to counsel and the primary caution protect the same essential interest of a detainee, the right to silence. The right to silence imparted by counsel is more fundamental and more likely to be absorbed, however, as it comes from the accused’s one friend in the process, a person aligned with his interest. The police are in an adversarial position.

[64] When Mr. Egwu gave his statement to Officer Anderson, the balance between the state and the individual was heavily weighted towards the state and against Mr. Egwu. The imbalance referred to in the s. 10(b) caselaw was wholly in favour of the state: R. v. McCallen, [1999] O.J. No. 202, 116 O.A.C. 308 (Ont. C.A.) at paras. 37-38. There was both the appearance and reality of a lack of procedural fairness to Mr. Egwu.

[65] It cannot be known whether Mr. Egwu, having been properly apprised by counsel of his right to silence, would nonetheless have chosen to talk to Officer Anderson. Many accused having been informed by counsel of their right to silence, speak to the police regardless. Mr. Egwu testified that if he had known about his right not to speak to the police, he would not have done so. This evidence is of little use, however. Even if totally objective, it is not possible to reconstruct these events with anything approaching verisimilitude.

[66] Determining whether Mr. Egwu would have stood his ground and not spoken to the police is an impossible task. It is difficult to imagine how this could ever be shown. It lies in the realm of speculation. In my view, the situation is somewhat similar to Bartle, where Chief Justice Lamer said,

55… in light of the many warnings by this court about the dangers of speculating about what advice might have been given to a detainee by a lawyer had the right to counsel not been infringed (infra, pp. 37-38 [post, pp. 35-36]), it is only consistent that uncertainty about what an accused would have done had his or her s. 10(b) rights not been violated be resolved in the accused’s favour and that, for the purposes of considering the effect of admission of evidence on trial fairness, courts assume that the incriminating evidence would not have been obtained but for the violation. The state bears the responsibility for the breach of the accused constitutional rights. If the state subsequently claims that there was no causal link between this breach and the obtaining of the evidence at issue, it is the state that should bear the burden of proving this assertion.

[67] Another approach is to view the issue from the perspective of the ineffective assistance of the lawyer. With reference to the prejudice limb of the test, ineffective representation on the performance criterion may undermine the appearance of fairness of the trial or the reliability of the verdict, either route resulting in a miscarriage of justice: R. v. Archer (2005), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 120. Here, adapting the test to the investigatory stage, the fairness of the statement taking process has been compromised. That it was not the fault of the police does nothing to detract from this reality. Mr. Egwu simply did not have the tools either from counsel or from an understanding of the primary caution to have knowledge of the choice he had not to speak to the police. The key factor counterbalancing the power and advantage of the state—the right to silence imparted by his own counsel--was absent. With its absence, fundamental as it is, the appearance of fairness in the interrogation process was consequently lost.

[68] The lack of fairness in this process leads to the conclusion that if the statement was admitted at the trial, the appearance of a fair trial would be infected as well. This is particularly clear in this case when the interview is closely examined. Early in the interview, Mr. Egwu was asked if he knew the complainant. He said he did. He agreed with the suggestion that they had an intimate relationship. She would come by when she was in town. He then mentioned that when she was in town last, she came by and the two were kissing. The officer then asked whether the two had sex on that occasion. Mr. Egwu grew evasive. This began at the bottom of page 7 and, with the officer pursing Mr. Egwu with his questions, continued until the end of the interview about 40 pages later. The officer asked if there would likely be Mr. Egwu’s DNA in the complainant and other stratagems were used to get him to talk about whether there had been sex. The officer put the complainant’s allegations to Mr. Egwu. He admitted to having sex with her on prior occasions but repeatedly and conspicuously dodged the suggestions that he had sex with her on this occasion.

[69] The principal use of the exculpatory statement for the Crown at trial will be to demonstrate the constant evasions and vacillations of Mr. Egwu. They could be referred to with great effect to destroy or at least to diminish his credibility on the witness stand at trial. Credibility, like in most sexual assault trials, is likely to be a--if not the--major issue. The exclusive use of the statement on credibility, if anything, underscores the unfairness of the admission of this evidence. If Mr. Egwu had known that he did not have to speak to the police and this refusal could not be used against him, it is reasonably possible that he would not have been so evasive and uncertain.

[70] To continue Justice Doherty’s metaphor from Rover, when Mr. Egwu was given the opportunity and reached out for help, no lifeline was thrown to him. Without the assistance of counsel, he was a drowning man, flailing about ineffectually in his attempt to escape a skilled and persistent police interrogator.

[71] Ms. Prihar displayed a good appreciation of her role as a Minister of Justice during this hearing. She, like Ms. Salih, expressed bewilderment with the failure of counsel to impart any legal advice whatsoever to Mr. Egwu at the time of his detention. She suggested that if the application was to be allowed, only part of the police statement need be excised in order to preserve the fairness of the trial. I agree with that submission.

[72] I would exclude from this trial under Section 24(1) of the Charter the part of the interview after the initial question asking Mr. Egwu whether he had sex with the complainant on the one occasion. This begins at the bottom of page 7 and continues to the end of the interview. This is the part of the interview that appears to have been most seriously impacted by Mr. Egwu’s ignorance of his right to silence.

[73] The application is allowed to this extent. In light of the result, it is unnecessary to consider the voluntariness argument.

D.E HARRIS J. Released: February 28, 2024

COURT FILE NO.: CR-21-1388-00 DATE: 2023 06 01 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIS MAJESTY THE KING - and – JUDE EGWU RULING D.E HARRIS J. Released: June 1, 2023