ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
HELDER VERTENTES-ARRUDA
David D'Iorio and Shazin Karim for the Crown
Jason Dos Santos, for the Accused
HEARD: March 6, 7, 8, 9, 10, 20, 23, 24, April 4, 18, 19, 20, 24, 25, 26, June 5, 6, 16, 2023
REASONS FOR DECISION
VOLUNTARINESS AND SECTION 10(B) CHARTER APPLICATIONS
INTRODUCTION
1Mr. Vertentes-Arruda faces a charge of first-degree murder in the death of his mother-in-law and five charges of attempted murder relating to his wife, three daughters, and father-in-law.
2The Crown alleges that on the morning of December 4, 2020, Mr. Vertentes-Arruda started a fire at the Brampton home of his in-laws, where his wife and children were staying at the time. The Crown contends that he did so intending to kill everyone in the residence. Although his wife, daughters, and father-in-law escaped the fire and survived, his mother-in-law did not.
3Within a couple of hours of the fire, police arrested Mr. Vertentes-Arruda outside of his home. Later that morning, at Peel Regional Police's 21 Division, after speaking with duty counsel, Mr. Vertentes-Arruda was questioned by a police officer in his first language, Portuguese. Their discussion was audio and video recorded and lasted a few hours. Although Mr. Vertentes-Arruda was initially unwilling to discuss the allegations, he eventually made some rather incriminating statements.
4The Crown seeks a ruling that Mr. Vertentes-Arruda's videotaped statement was voluntary and is admissible at his trial. In contrast, Mr. Vertentes-Arruda claims that in all the circumstances, the court should have a reasonable doubt concerning the voluntariness of his statement, and, accordingly, it should be ruled inadmissible.
5Additionally, Mr. Vertentes-Arruda claims that in the lead-up to his incriminating statements, the police violated his right to counsel guaranteed by section 10(b) of the Charter in several discrete ways. As a result, he seeks an order excluding his videotaped statement from evidence under section 24(2) of the Charter. In contrast, the Crown maintains that the police complied with their obligations under section 10(b). As a result, the Crown submits that the Charter provides no bar to admitting Mr. Vertentes-Arruda's videotaped statement into evidence at his trial.
6As a Case Management Judge, the voluntariness and Charter applications proceeded before me at a blended hearing.
7These reasons explain the court's conclusions regarding the Crown's voluntariness application and Mr. Vertentes-Arruda's Charter claims. They proceed in two main parts. First, with a summary of the evidence adduced by the parties on the blended voir dire. The second part analyzes the legal issues raised given the parties' positions, the court's findings, and the law.
I. EVIDENCE
8At the hearing, a central issue was Mr. Vertentes-Arruda's proficiency in English. There is no dispute that Mr. Vertentes-Arruda came to Canada from Portugal as an adult and that English is not his first language. However, the parties disagree on whether the police officer who testified to first apprising Mr. Vertentes-Arruda of his rights to counsel on the morning of December 4, 2020, should have recognized that he had difficulty with English comprehension and facilitated the provision of that same information in Portuguese.
9Mr. Vertentes-Arruda's English proficiency was also relevant to whether his videotaped statement was voluntary, given that the arresting officer testified to providing the common law cautions to him in English, and no one ever read them to him in Portuguese.
10The Crown called several witnesses at the hearing. That included evidence concerning interactions that Mr. Vertentes-Arruda had with the police on the two evenings preceding the morning of the fire and his arrest for murder and attempted murder. That evidence, the Crown maintains, bears upon whether the officer who purportedly apprised him of his 10(b) rights and provided him with the common law cautions on December 4, 2020, would have had any reason to doubt his comprehension of what the officer told him.
11The Crown also called Mr. Vertentes-Arruda's wife, who testified concerning his interactions with the police in the days preceding the fire. Beyond that, she also testified concerning Mr. Vertentes-Arruda's limited proficiency in English.
12Further, the Crown called the police officers who interacted with Mr. Vertentes-Arruda on December 4, 2020. That included the tactical officer who arrested him that morning and the police officer who soon took custody of him and testified to apprising Mr. Vertentes-Arruda of his right to counsel and providing him with the common law cautions in English before transporting him to 21 Division. The Crown also called the Staff Sergeant on duty that morning at 21 Division, who took the lead in processing Mr. Vertentes-Arruda because he happened to speak Portuguese.
13Additionally, with a waiver of solicitor-client privilege by Mr. Vertentes-Arruda, the Crown called duty counsel, who provided him with legal advice with the assistance of a Portuguese interpreter on the morning of December 4, 2020, during a half-hour telephone conversation that preceded his police interview.
14The Crown also called the police officer who interviewed Mr. Vertentes-Arruda in Portuguese, played the video recording from their discussion, and entered a transcript of that interview translated from Portuguese to English as an exhibit. Beyond the interviewing officer, the Crown also called a homicide detective who watched the interview from another room as it took place and decided not to permit Mr. Vertentes-Arruda to consult counsel a second time during the interview.
15Finally, Mr. Vertentes-Arruda also testified at the hearing. He gave evidence concerning his limited proficiency in English, his interactions with police in the days preceding the fire, and the events of December 4, 2020. He offered markedly different testimony from many of the police witnesses. For example, Mr. Vertentes-Arruda insisted that he was never informed of his right to counsel or provided with the common law cautions. Further, Mr. Vertentes-Arruda testified concerning the events leading up to his audio and video recorded police interview on December 4, 2020, and his thought process as that interview unfolded.
Mr. Vertentes-Arruda's proficiency in English
16The court heard a considerable amount of evidence concerning Mr. Vertentes-Arruda's proficiency in English. In that regard, the best evidence came from his wife, and Mr. Vertentes-Arruda himself.
17Mr. Vertentes-Arruda is from Portugal. He initially came to Canada in 2004 but went back after a couple of months before eventually returning in 2007. He met his wife in Canada. Although she is Canadian, her parents are from Portugal, and she speaks Portuguese.
18Mr. Vertentes-Arruda has never taken any English language classes. His wife testified that he spoke very little English when they first met, and they mainly communicated in Portuguese. She testified that his English has improved over the years but remains "very basic" and "very simple," and he continues to have difficulty conversing in English.
19Mr. Vertentes-Arruda and his wife testified that he worked as a cement finisher and that everyone he worked with spoke Portuguese. He testified that when at work, if a foreperson gave instructions in English, one of his coworkers would interpret for him. Given his limitations in English, his wife testified that she would accompany Mr. Vertentes-Arruda to doctor's appointments or if they had to meet with their accountant or lawyer.
20Similarly, Mr. Vertentes-Arruda testified to navigating life in Canada mainly in Portuguese. For example, he chose a dentist who speaks Portuguese, and went to a bank with Portuguese-speaking staff. When that was not an option, he relied on others to translate for him, often his wife or sometimes a friend.
21However, none of Mr. Vertentes-Arruda's daughters, who are 11, 9 and 4, speak Portuguese. The oldest understands some Portuguese, while the younger two do not. Despite this, Mr. Vertentes-Arruda and his wife testified that he still managed to communicate with them using simple English.
22Similarly, Mr. Vertentes-Arruda acknowledged having basic English conversations with his brothers-in-law, who do not speak Portuguese, and that his ability to understand English was somewhat better than his ability to speak it.
23Further, because he cannot write in English, Mr. Vertentes-Arruda would "text" his wife by speaking in English, which his phone would convert into text. However, these "texts" sometimes reflected errors because the application that converted speech to text would misconstrue what he intended to say.
24Finally, Mr. Vertentes-Arruda testified that when under the influence of cocaine, which he acknowledges was the case during his interactions with police in the days preceding and on December 4, 2020, he understood English better than when he was not.
Events shortly after midnight on December 3, 2020
25In the months preceding his arrest on December 4, 2020, Mr. Vertentes-Arruda acknowledged being a regular and heavy user of cocaine. Although he stopped for about a month, he testified to relapsing in the days preceding his arrest and using it every day during that period. That included secretly ingesting it when he was home with his wife and daughters.
26In the lead-up to December 3, 2020, Mr. Vertentes-Arruda had become convinced that his wife was having an affair with another man. The couple argued, with Mr. Vertentes-Arruda accusing her of infidelity and his wife denying this.
27On the evening of December 2, 2020, his wife testified that they again began arguing about her alleged infidelity. She could tell he was "under the influence" because he was aggressive and agitated. According to his wife, Mr. Vertentes-Arruda became convinced that a man he believed she was cheating with was hiding in their apartment that evening. That dispute culminated in him leaving their residence and going to the door of the upstairs tenant, knocking on his door, and asking him to call the police because someone was hiding in their home. His wife asked the upstairs tenant not to call the police, as she did not want them involved.
28Mr. Vertentes-Arruda testified that he wanted the police to attend and asked the upstairs tenant to call because when he telephoned 911, he could not explain the situation to the operator due to his limited English. He acknowledged telling the 911 operator, "I have a problem in my house; I have a guy in my house," in English. After that, his wife took the phone from him. At that point, he left their apartment and went to speak to the upstairs tenant. During cross-examination, Mr. Vertentes-Arruda testified that he talked to the upstairs tenant in English and told him to call the police because "I have one guy in my apartment."
29The two officers who responded to the call shortly after midnight on December 3, 2020, Constables Jamieson and Saha, testified concerning their interactions with Mr. Vertentes-Arruda and his wife when they arrived at the residence that morning. They found the couple arguing in the driveway when they arrived.
30Constable Jamieson spoke with Mr. Vertentes-Arruda and his wife before the officers separated them. Constable Jamieson testified that Mr. Vertentes-Arruda said, referring to the phone he was holding, that it was not his. She pointed out the photograph on the screen and asked him, "Are these not your daughters?" Although he agreed that they were, he insisted that it was not his phone. Similarly, he insisted that the car parked in the driveway was not his. His wife had the vehicle ownership in her hand, and the officer took it and showed it to Mr. Vertentes-Arruda; it had his name on it, and she pointed this out to him. Despite this, he maintained, "No, it's his" (the man he believed his wife was seeing). Mr. Vertentes-Arruda also told Constable Jamieson that the shoes on his feet were not his.
31Constable Jamieson testified that she spoke to Mr. Vertentes-Arruda directly and in English and that although he had an accent, she had no difficulty understanding him. In contrast, Mr. Vertentes-Arruda testified that he never told Constable Jamieson anything about his phone, car, or shoes. Further, he denied he could have communicated what she claimed he did in English.
32At a certain point, the officers separated Mr. Vertentes-Arruda and his wife. Constable Jamieson spoke with Mr. Vertentes-Arruda's wife alone, and Constable Saha did the same with him.
33Constable Saha testified that Mr. Vertentes-Arruda was agitated and insistent that someone was inside the house; he was saying this repeatedly. He told the officer, "She's cheating on me; he's still inside the house." In contrast, Mr. Vertentes-Arruda testified that although he could have told the officers someone was in his house, he would have been unable to say his wife was cheating on him because of his limited English. At a certain point, Constable Jamieson went inside the residence, returned, and confirmed that no one was in the home beyond the couple's three daughters.
34Despite the officers advising him of this, Constable Saha testified that Mr. Vertentes-Arruda continued to insist that someone else was in his house. According to Constable Saha, Mr. Vertentes-Arruda was pacing back and forth, sweating, pale and speaking fast. Mr. Vertentes-Arruda's wife had advised the officer that he had relapsed with cocaine. Given this, Constable Saha asked Mr. Vertentes-Arruda if he was okay and if he had consumed drugs or alcohol. He testified that Mr. Vertentes-Arruda responded, "Yes, yes, I did cocaine."
35With that admission, Constable Saha testified that Mr. Vertentes-Arruda, unprompted, removed his right boot, produced two baggies, and said, "I took this. This is all I have." After that, the officer immediately arrested Mr. Vertentes-Arruda for possessing a controlled substance.
36Mr. Vertentes-Arruda offered somewhat similar evidence concerning the events immediately preceding his arrest. However, he testified that he only took off his boots and produced the baggies, each containing two grams of cocaine, after the officer asked him, with the assistance of his wife, if he had any drugs on him. In contrast, Mr. Vertentes-Arruda's wife did not recall translating for him while he spoke with the police.
37Constable Saha gave detailed evidence concerning what he said to Mr. Vertentes-Arruda when he placed him under arrest and in its immediate aftermath. He could do so, he testified, because he read from a script in his notebook and then recorded verbatim what Mr. Vertentes-Arruda said in response. Constable Saha described the following exchange taking place between him and Mr. Vertentes-Arruda:
Constable Saha: I am arresting you for possession of a controlled substance. Do you understand?
Mr. Vertentes-Arruda: Yes.
Constable Saha: It is my duty to inform you that you have the right to retain and instruct counsel without delay. Do you understand?
Mr. Vertentes-Arruda: Yes, yes.
Constable Saha: You have the right to telephone any lawyer you wish, do you understand?
Mr. Vertentes-Arruda: Yes, I'm telling she's cheating.
Constable Saha: You also have the right to free advice from a legal aid lawyer, do you understand?
Mr. Vertentes-Arruda: Yes.
Constable Saha: If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for legal assistance. 1-800-265-0451 is a toll-free number that will put you in contact with a duty counsel lawyer for free legal advice right now. Do you understand?
Mr. Vertentes-Arruda: Yes, yes.
Constable Saha: Do you wish to call a lawyer now?
Mr. Vertentes-Arruda: No, no lawyer.
Constable Saha: You are charged with one count of possessing a controlled substance. You are not obliged to say anything unless you want to do so, but anything you say could be admitted into evidence. Do you understand?"
Mr. Vertentes-Arruda: Yes.
38In contrast, Mr. Vertentes-Arruda testified that he did not recall the police telling him he was under arrest for possessing cocaine, mentioning anything about his right to call a lawyer, or warning him that anything he said could be used as evidence against him. During cross-examination, he insisted that police never told him anything of that nature and were lying in claiming they had.
39Additionally, during cross-examination, Mr. Vertentes-Arruda testified, for the first time, that the only thing he said to the officers in English that morning was that he wanted a Portuguese-speaking officer to attend. However, he was unsure if they understood his request. During cross-examination, defence counsel never suggested to either Constables Jamieson or Saha that Mr. Vertentes-Arruda had asked for a Portuguese-speaking officer to attend.
40Mr. Vertentes-Arruda admitted that he was under the influence of cocaine early on the morning of December 3, 2020. Further, during cross-examination, he acknowledged that cocaine affects his memory and that when it comes to events that occur while he is under its influence, he can remember certain things and forget others. Concerning the events early on December 3, 2020, Mr. Vertentes-Arruda testified that "my head sees bits and pieces" and acknowledged that his memory was "incomplete and inaccurate”.
41Shortly after arresting him, Constable Saha released Mr. Vertentes-Arruda after issuing him an appearance notice. He testified to explaining the document to Mr. Vertentes-Arruda and having him sign it. Although Mr. Vertentes-Arruda had no memory of signing the appearance notice, when the Crown produced it during cross-examination, he confirmed that his signature was on the document. By way of explanation, he testified that "I was not in my right mind."
42Given his admission that he had ingested cocaine, the police summoned an ambulance, and Mr. Vertentes-Arruda, after some coaxing from his wife, reluctantly agreed to attend the hospital.
43After the ambulance left, Mr. Vertentes-Arruda's wife collected some belongings, and she and their daughters went to stay with her parents at their residence in Brampton at her mother's insistence.
44However, a short time later, Mr. Vertentes-Arruda called his wife because the hospital was releasing him. She picked him up from the hospital and dropped him off at their residence before returning to the home of her parents, where she remained with their daughters.
Events late on the evening of December 3, 2020; another visit by police
45Mr. Vertentes-Arruda testified that after returning from the hospital, his brother, dropped off $400 in cash his employer owed him later that day. He used that money to buy a 32-ounce bottle of whiskey, six tall cans of beer, and four packets (one gram each) of cocaine mixed with "crystal," which made it more potent.
46Mr. Vertentes-Arruda testified that he then began drinking. After that, his wife, brother, and sister-in-law visited him to discuss his drug use; they encouraged him to seek treatment. They could tell he had been drinking, and his brother took the keys to his truck. After they left, Mr. Vertentes-Arruda testified that he remained home and continued drinking and, starting at around 1:00 p.m., began consuming the drugs he had purchased.
47Mr. Vertentes-Arruda testified that he eventually began hearing voices. He heard a man's voice speaking in Portuguese in his ear saying, "There's somebody here" and "There's somebody there." He also saw doors opening and closing in the residence. In retrospect, Mr. Vertentes-Arruda conceded that the drugs were probably responsible for the voices he thought he was hearing and that they interfered with his ability to see what was truly happening. Mr. Vertentes-Arruda described becoming fearful, believing someone was in the apartment, and testified that he started screaming. Eventually, he heard someone knocking at the interior door that separated their apartment from the upstairs tenant's. He was sure someone was there to kill him. However, it turned out to be the police.
48Three police officers attended Mr. Vertentes-Arruda's residence shortly after 11:00 p.m. on December 3, 2020, in response to a complaint from the upstairs neighbour about noise coming from Mr. Vertentes-Arruda's apartment. Two officers who attended, Sergeant Schwartz and Constable Nijjer, testified concerning their dealings with Mr. Vertentes-Arruda that evening.
49Constable Nijjer, who, at the time, had only been a police officer for approximately six months, was the first to attend. He spoke to the upstairs tenant and his son. They reported that Mr. Vertentes-Arruda was running in and out of his basement apartment, holding a wrench and covered in sweat.
50Constable Nijjer then went to the exterior door of Mr. Vertentes-Arruda's unit and banged on it about ten times, but no one answered. The upstairs tenant then led him through his apartment to the interior door to the basement unit, and Constable Nijjer knocked on that door a few times before Mr. Vertentes-Arruda answered.
51Constable Nijjer asked Mr. Vertentes-Arruda what was wrong and what was happening, and he kept responding, "My wife, my wife," and "I'm scared, I'm scared, I'm scared." He also mentioned being unable to sleep. He seemed nervous, paranoid, and jittery, and he was sweating. He was talking fast, and Constable Nijjer could not understand him. He assumed Mr. Vertentes-Arruda was on cocaine, given his behaviour and because he knew of his arrest from the night before for possessing cocaine.
52Sergeant Schwartz arrived ten minutes after Constable Nijjer. When he got there, Constable Nijjer and a second officer were on the driveway speaking with Mr. Vertentes-Arruda. At point, Sergeant Schwartz, who was far more experienced than Constable Nijjer, took the lead in dealing with Mr. Vertentes-Arruda. After that, Constable Nijjer remained mainly for officer safety reasons while the second officer left. Given his limited role, Constable Nijjer did not make detailed notes concerning that evening's events, and his evidence reflected this.
53According to Constable Nijjer, Mr. Vertentes-Arruda calmed down after Sergeant Schwartz arrived, and Sergeant Schwartz had more success communicating with Mr. Vertentes-Arruda than Constable Nijjer had. Sergeant Schwartz testified that in speaking with Mr. Vertentes-Arruda, he learned he had a wife and children, had been married for 12 years, and reported that his wife's boyfriend threatened to kill him. Mr. Vertentes-Arruda did not know the boyfriend's name but mentioned having a video of the person. However, when he went to show Sergeant Schwartz the video, his phone was dead.
54At that point, Sergeant Schwartz testified that Mr. Vertentes-Arruda invited them inside his apartment. Once there, Mr. Vertentes-Arruda took the SIM card from the dead phone and put it into another one. Instead of a video, he showed Sergeant Schwartz some text messages, which Mr. Vertentes-Arruda believed proved his wife was cheating on him. However, when Sergeant Schwartz read the texts, it was apparent that they were between a female friend and Mr. Vertentes-Arruda's wife. Sergeant Schwartz told Mr. Vertentes-Arruda, "This is not a boyfriend; this is her friend." However, he testified that Mr. Vertentes-Arruda remained adamant his wife was having an affair.
55At that point, Sergeant Schwartz testified to calling Mr. Vertentes-Arruda's wife on the phone to get a better sense of why they were there and to get her perspective on what was happening. He testified that Mr. Vertentes-Arruda encouraged him to do so and kept repeating, "I love my family." Sergeant Schwartz testified that he spoke with Mr. Vertentes-Arruda's wife for four or five minutes. During that call, she explained that Mr. Vertentes-Arruda was using drugs and alcohol, and she did not want her kids around him.
56In contrast, Mr. Vertentes-Arruda's wife estimated that her telephone call with Sergeant Schwartz lasted between 20 and 30 minutes. She testified to telling the officer that her husband had issues with alcohol and drugs and that he was hallucinating. When the officer asked if she was somewhere safe, she told him she and their children were staying with her parents and that Mr. Vertentes-Arruda did not have a car.
57Sergeant Schwartz testified that Mr. Vertentes-Arruda had an accent but insisted they understood each other and communicated reasonably well. Although he acknowledged requesting the attendance of a Portuguese-speaking officer at some point during their interaction and none being available, he nevertheless maintained they could understand one another. Sergeant Schwartz testified that he would have made alternative arrangements if they had been unable to communicate. For example, he would have called a family member or friend of Mr. Vertentes-Arruda to translate for them. However, he insisted that that did not prove necessary because he ultimately was able to communicate with Mr. Vertentes-Arruda. According to Sergeant Schwartz, Mr. Vertentes-Arruda never said he could not understand him.
58Like Constable Nijjer, Sergeant Schwartz concluded that Mr. Vertentes-Arruda had been using drugs. He formed that opinion because he knew about Mr. Vertentes-Arruda's recent arrest for possessing cocaine, and he was "antsy and jittery," was sweating profusely, and had constricted pupils.
59Constable Nijjer arrived at Mr. Vertentes-Arruda's residence at 11:08 p.m., and Sergeant Schwartz arrived at 11:18 p.m. The officers left at 12:36 a.m.
60Mr. Vertentes-Arruda described that evening's events differently than Constable Nijjer and Sergeant Schwartz. He testified that although the officers spoke with him, he insisted he understood very little of what they said. He testified that the officers were "mad" at him and asked him if he did drugs, to which he said, "No." He testified that the police officers eventually managed to calm him down and told him “To go to your bed." Mr. Vertentes-Arruda testified that he could not explain what was happening to the police officers because they did not understand him and that he wanted a Portuguese-speaking officer to attend, but none ever did.
61During cross-examination, Mr. Vertentes-Arruda conceded having difficulty remembering events from that evening. He testified that his memory of that night was worse than of the previous evening. Mr. Vertentes-Arruda explained this was because not only had he consumed drugs, like the night before, but also because he had consumed half of the bottle of whiskey by the time the police arrived. Mr. Vertentes-Arruda acknowledged that he has gaps in his memory and cannot be sure he remembers that evening accurately.
62Rather than going to bed when the police left shortly after midnight on December 4, 2020, Mr. Vertentes-Arruda testified that he consumed the remainder of the bottle of whiskey and the rest of the cocaine. However, he could not reliably estimate at what time that morning he finished the alcohol and drugs.
Mr. Vertentes-Arruda's arrest on the morning of December 4, 2020
63The initial emergency call concerning a fire at Mr. Vertentes-Arruda's in-laws' home came in at 3:58 a.m. By 4:21 a.m., firefighters had discovered Mr. Vertentes-Arruda's mother-in-law deceased inside the residence. Shortly after that, word went out over the police radio that Mr. Vertentes-Arruda was arrestable for murder and arson, and police set out to find and arrest him.
64At approximately 6:00 a.m., members of the Peel Regional Police's Tactical and Rescue Unit attended Mr. Vertentes-Arruda's residence looking for him. After determining that no one was home, they awaited further instructions and remained in front of the house.
65As they did so, they observed Mr. Vertentes-Arruda walking along the sidewalk and toward them. One of the tactical officers, Constable McVean, asked him, "Are you Helder?" and he responded, "Yes." With that, Constable McVean told Mr. Vertentes-Arruda he was under arrest for murder and arson.
66Constable McVean handcuffed Mr. Vertentes-Arruda and then searched him. He then requested uniformed officers to attend with a police cruiser to transport Mr. Vertentes-Arruda. Constable McVean testified that within less than a minute, uniformed officers in a marked police cruiser arrived to take custody of Mr. Vertentes-Arruda.
67Constable Beduz and Constable Dhillon, who were in uniform and travelling in a marked cruiser with a prisoner's cage in the backseat, each testified that they arrived at 6:11 a.m. Constable Dhillon drove the cruiser that morning. Upon arrival, they immediately took custody of Mr. Vertentes-Arruda.
68At the time, Constable Dhillon was nearing the completion of her second of three months of on-the-job training under the supervision of Constable Beduz, her training officer. She had only become a sworn police Constable in October 2020. Given all of that, Constable Beduz took the lead in dealing with Mr. Vertentes-Arruda that morning.
69Constable Beduz testified that as soon as he took custody of Mr. Vertentes-Arruda at 6:11 a.m., he said to him: "Sir, you are being placed under arrest for one count of murder, four counts of attempted murder, and one count of arson cause death." Constable Beduz testified that Mr. Vertentes-Arruda immediately responded, "With what proof?" The officer replied, "First of all, you still smell like gasoline," to which Mr. Vertentes-Arruda responded, "Okay, then, I'll call my lawyer."
70After that, Constable Beduz began to search Mr. Vertentes-Arruda while Constable Dhillon stood by. Following the search, Constable Beduz exchanged his handcuffs for Constable McVean's before placing Mr. Vertentes-Arruda in the backseat of the police cruiser.
71Constable Beduz testified that, between 6:16 a.m. and 6:20 a.m., as he stood next to the cruiser's open rear door, next to where Mr. Vertentes-Arruda was seated, he apprised him of his right to counsel. Constable Beduz testified to reading from a pre-printed form in his notebook and recording Mr. Vertentes-Arruda's responses verbatim. Constable Beduz testified to the following being said between him and Mr. Vertentes-Arruda:
Constable Beduz: I am arresting you for one count of murder, four counts of attempted murder, and one count of arson causing death; do you understand?
Mr. Vertentes-Arruda: Yes.
Constable Beduz: It is my duty to inform you that you have the right to retain and instruct counsel without delay; do you understand?
Mr. Vertentes-Arruda: Oh, yeah.
Constable Beduz: You have the right to telephone any lawyer you wish; do you understand?
Mr. Vertentes-Arruda: Yes, Sir.
Constable Beduz: You also have the right to free advice from a Legal Aid Lawyer; do you understand?
Mr. Vertentes-Arruda: Yes.
Constable Beduz: If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for legal assistance. 1-800-265-0451 is a toll-free number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now; do you understand?
Mr. Vertentes-Arruda: Yes.
Constable Beduz: Do you wish to call a lawyer now?
Mr. Vertentes-Arruda: Yes. I have a lawyer, Michael Lima Garden.
Constable Beduz: Where does he practice?
Mr. Vertentes-Arruda: In Toronto.
Constable Beduz: Do you know his telephone number?
Mr. Vertentes-Arruda: No, no, no.
Constable Beduz: Have you used his services before?
Mr. Vertentes-Arruda: Yeah, sometimes.
72At 6:20 a.m., Constable Beduz testified that he provided Mr. Vertentes-Arruda with the common law cautions. He described the following exchange taking place between them:
Constable Beduz: You are charged with one count of murder, four counts of attempted murder, and one count of arson causing death. You are not obliged to say anything unless you wish to do so. Whatever you say may be given in evidence; do you understand?
Mr. Vertentes-Arruda: Yeah, yeah.
Constable Beduz: If you have spoken to any police officer, or to anyone with authority, or if any such person has spoken to you in connection to this case, I want it clearly understood that I do not want that to influence you in making a statement. Do you understand?"
Mr. Vertentes-Arruda: Okay.
73Constable Beduz testified that based on the tone and substance of some of Mr. Vertentes-Arruda's responses, for example, his saying, "Oh yeah," his impression was that Mr. Vertentes-Arruda was not taking the situation seriously. He described him as seeming somewhat "flippant."
74During cross-examination, Constable Beduz acknowledged testifying at the preliminary inquiry to being unsure whether he provided the rights to counsel while standing outside the cruiser or after they were all inside the vehicle. However, he maintained that his current recollection was that he did this while standing outside the open rear door of the police cruiser.
75Constable Beduz also testified to being unsure of the surname of the lawyer Mr. Vertentes-Arruda asked to speak with and whether he meant "Garden" or "Garten."
76After providing Mr. Vertentes-Arruda with his rights to counsel and the common law cautions and when the three of them were all seated in the cruiser, Constable Beduz testified that he asked him various non-investigative questions to obtain the information required to complete the arrest record. Constable Beduz testified to the following exchange taking place between them:
Constable Beduz: Are you a Canadian citizen?"
Mr. Vertentes-Arruda: No.
Constable Beduz: What's your status in Canada?
Mr. Vertentes-Arruda: Permanent resident.
Constable Beduz: Where were you born?
Mr. Vertentes-Arruda: Saint Miguel, Azores, Portugal.
Constable Beduz: Where did you enter Canada?
Mr. Vertentes-Arruda: Toronto airport.
Constable Beduz: What year did you come to Canada?
Mr. Vertentes-Arruda: 2008 or 2009.
77Constable Beduz testified that Mr. Vertentes-Arruda did not appear to have difficulty understanding him and that he responded in English. The officer, whose mother and grandmother speak Portuguese, recognized that Mr. Vertentes-Arruda had a Portuguese accent. As a result, he asked Mr. Vertentes-Arruda if he spoke Portuguese, and he said, "Yes."
78Constable Dhillon testified that she was sitting in the cruiser's driver's seat when Constable Beduz spoke with Mr. Vertentes-Arruda, except for a brief period when she stepped out of the vehicle to retrieve an item from behind her seat for another officer. Although a plexiglass Covid barrier divided the front driver's and passenger's seats and interfered with her ability to hear what was said clearly, she testified to hearing enough to know that Constable Beduz was providing Mr. Vertentes-Arruda with his rights to counsel and cautions. Further, although Mr. Vertentes-Arruda had an accent, Constable Dhillon testified that he appeared to understand. Constable Dhillon had no recollection of Mr. Vertentes-Arruda ever saying that he did not speak English or expressing a lack of understanding.
79Constable Dhillon failed to make detailed notes concerning the interaction between Constable Beduz and Mr. Vertentes-Arruda. In her notebook, she made an entry that read: "Male speaking to Cst. Beduz in English and responding to all questions, although English is not his primary language." Given the brevity of that notation, she could not recall whether Constable Beduz spoke with Mr. Vertentes-Arruda while standing outside the cruiser or as he sat in the front passenger seat. Further, she could not remember any of the details of their conversation, including whether Mr. Vertentes-Arruda provided Constable Beduz with the name of a lawyer. In retrospect, she conceded she should have made more detailed notes than she did and cited her lack of experience at the time for failing to do so.
80Mr. Vertentes-Arruda also provided evidence concerning the circumstances of his arrest. When asked during direct examination whether he remembered his interaction with the officer who first arrested him (Constable McVean), he testified that, at the time, he was "heavily under the influence of drugs" and "without a proper mind" but remembered, "more or less." During cross-examination, he testified that, at the time, "I still had the cocaine and alcohol. My head was very confused." As a result, he acknowledged that his memory of events from that morning was "very spotty," "very bad," and that there were "gaps" in his memory. Additionally, he conceded that the combination of alcohol and cocaine could mean he was misremembering things. And that because of the alcohol and drugs, he cannot depend on his memory of the events that morning.
81Nevertheless, Mr. Vertentes-Arruda testified to remembering that the first officer who arrested him pushed him to the ground. However, he could not recall if that officer handcuffed him. Mr. Vertentes-Arruda testified that the officer spoke to him but that he could not understand what the officer was saying to him.
82Mr. Vertentes-Arruda could not recall how long afterward Constables Beduz and Dillon arrived. He testified that Constable Beduz spoke to him but insisted that he did not understand what he said to him. Mr. Vertentes-Arruda thought Constable Beduz was the only officer who talked with him but could not say for sure because, he explained, "I don't remember very well."
83When asked if he remembered Constable Beduz telling him why he was under arrest, Mr. Vertentes-Arruda testified that while they were outside the police cruiser, he told Constable Beduz that he did not understand English. After that, he testified that Constable Beduz placed him inside the police cruiser and insisted that they never spoke again.
84Mr. Vertentes-Arruda denied the exchanges between him and Constable Beduz that the officer claimed took place after he assumed custody of Mr. Vertentes-Arruda. For example, Mr. Vertentes-Arruda denied ever saying "Michael Lima Garden" to Constable Beduz. Mr. Vertentes-Arruda testified that he did not know anyone by that name. However, he acknowledged that, at the time, he was ploughing snow for a company named "Lima's Gardens."
85In support of the application to exclude Mr. Vertentes-Arruda's post-arrest statement, defence counsel filed a Statement of Anticipated Evidence as required by Rule 31.05(1)(d) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario). It is an agreed fact that defence counsel, fluent in Portuguese, prepared it based on information supplied by Mr. Vertentes-Arruda. Further, before filing it, defence counsel reviewed it with Mr. Vertentes-Arruda by orally translating the document to him in Portuguese.
86According to the Statement of Anticipated Evidence, Mr. Vertentes-Arruda told Constable Beduz he did not speak English. He asked that someone assist him with translation and suggested "his boss and friend Michael Lima," his brother, or someone from his union.
87In contrast, Mr. Vertentes-Arruda initially testified that the only thing he said to Constable Beduz before the officer placed him in the cruiser was that he did not understand English. He denied asking Constable Beduz to call anyone to translate for him. Further, he testified that his boss at Lima's Gardens was named "Virgilio," not "Michael."
88However, during cross-examination, Mr. Vertentes-Arruda conceded that he might have said something to Constable Beduz about calling "Michael Lima." He explained he might have been referring to calling his boss to get help from the lawyer who occasionally did legal work for Lima's Gardens. Mr. Vertentes-Arruda testified that he had never met that lawyer and did not know their name. Ultimately, Mr. Vertentes-Arruda conceded that given the "state of his head" at the time, he could not say one way or another what he said to Constable Beduz.
89Further, Mr. Vertentes-Arruda testified that he did not share any biographical information with Constable Beduz, as the officer also claimed during his testimony. Nevertheless, Mr. Vertentes-Arruda acknowledged that the information the officer described receiving from him was accurate, except for the year he came to Canada (he arrived in 2007, not 2008 or 2009).
90Ultimately, Mr. Vertentes-Arruda testified that he did not believe he said the various things that Constable Beduz claimed. However, he again acknowledged that because of the alcohol and drugs, his "head was not in the right state." And he conceded that because of that, he could not say what he said to the officer one way or another.
91According to Constables Beduz and Dhillon, they left the scene of Mr. Vertentes-Arruda's arrest at 6:30 a.m., travelled 12 kilometres to 21 Division, and arrived there at 6:48 a.m.
Mr. Vertentes-Arruda in the booking area at 21 Division
92After arriving at 21 Division, Constables Beduz and Dhillon escorted Mr. Vertentes-Arruda into the booking area at 6:52 a.m. Events in the booking area were video but not audio-recorded. The court heard extensive evidence from Constables Beduz and Dhillon, Sergeant Rego (the Staff Sergeant on duty) and Mr. Vertentes-Arruda regarding what transpired in the booking area that morning. Footage from the various cameras in the booking area was played and replayed during their testimony. Most of that evidence would have been unnecessary had the booking area been subject to video and audio recording.
93As an aside, I strongly encourage the Peel Regional Police to rectify this inexplicable shortcoming. In this case, the court spent several days hearing evidence as the parties attempted to reconstruct the events in the booking area. Nowadays, there is no good reason why that area, which is often where police and those in their custody have crucially important exchanges, is not subject to high-quality video and audio recording. I know from experience that the booking areas at all Toronto police stations have long been subject to high-quality video and audio recording. Given the vital interests at stake during exchanges in the booking area between police and those they arrest and the significant cost to the public purse of repeatedly litigating events in the booking area, this situation is long overdue for correction by the Peel Regional Police. No stakeholder in the criminal justice system benefits from the persistence of this entirely avoidable state of affairs.
94Sergeant Rego spoke Portuguese because his parents are from Portugal. He testified that he immediately began talking to Mr. Vertentes-Arruda in Portuguese either because he knew he was Portuguese from his surname or because Constable Beduz told him he was.
95Sergeant Rego testified that he carried out the various booking procedures that morning while speaking to Mr. Vertentes-Arruda in Portuguese. Sergeant Rego testified that he told Mr. Vertentes-Arruda that he was under arrest for four counts of “almost” killing (he did not know the word for “attempt” in Portuguese), one count of murder, and one count for “putting a house on fire.” Following this, he confirmed with Mr. Vertentes-Arruda that he understood the charges.
96According to Sergeant Rego, he also told Mr. Vertentes-Arruda that he “had the right to speak to a lawyer” with the assistance of a translator. He testified to asking Mr. Vertentes-Arruda if he had a lawyer and him responding, “No.” Sergeant Rego testified to replying by telling Mr. Vertentes-Arruda that he could put him in touch with a free lawyer. In English, he identified the free lawyer as “duty counsel.” According to Sergeant Rego, Mr. Vertentes-Arruda said he wanted to speak with the “free lawyer,” referred to that lawyer as “duty counsel,” and mentioned wanting a translator. During his testimony, Mr. Vertentes-Arruda agreed that he told Sergeant Rego he wished to speak with the “free lawyer.”
97Sergeant Rego testified that he did not translate the formal script from his notebook concerning the right to counsel into Portuguese for the benefit of Mr. Vertentes-Arruda. By way of explanation, he testified that he assumed that the arresting officer would have properly apprised Mr. Vertentes-Arruda of his right to counsel before he arrived at the police division. For the same reason, he testified that he did not provide Mr. Vertentes-Arruda with the common law cautions in Portuguese.
98Constable Beduz testified that shortly after they entered the booking area at 21 Division, while Sergeant Rego was speaking with Mr. Vertentes-Arruda in Portuguese, he used his cell phone to conduct a Google search to locate a phone number for “Micheal (sic) Lima Garden,”1 the lawyer that he understood Mr. Vertentes-Arruda said he wanted to speak to when apprised of his rights to counsel. (A video recording shows him using his smartphone in the booking area.) Constable Beduz failed to make any notes concerning the terms he searched for and could not recall them during his testimony.
99There is no lawyer in Ontario named “Michael Lima Garden.” A Google search for “micheal (sic) lima garden lawyer Toronto,” conducted by defence counsel in April 2023 yielded, amongst the results, a Facebook page for the “Law Office of Michael C. Lima,” a real estate lawyer in Rhode Island. However, Constable Beduz could not recall whether that was, in fact, the lawyer whose webpage he consulted on the morning of December 4, 2020.
100According to Constable Beduz, based on his search, he determined that the lawyer’s office would be open at 9:00 a.m. At that point, Constable Beduz testified to telling Mr. Vertentes-Arruda, in English, something like, “The lawyer you asked for is not open until 9:00 a.m.” or “Not available until 9:00 a.m.” And then asking him if he wanted to “speak with a free lawyer?” To which Mr. Vertentes-Arruda responded, “Yes.”
101Constable Beduz identified the portion of the video recording where he claims to have had that exchange with Mr. Vertentes-Arruda (7:11:40). It is unclear from the recording whether the two men spoke to one another at that point due to the camera angle. In an entry in his notebook, Constable Beduz memorialized his exchange with Mr. Vertentes-Arruda about wanting to consult with the “free lawyer” at 7:12 a.m. The video recording from the booking area captures him making a notation in his notebook around that time.
102According to Constable Beduz, during the very same period that he spoke to Mr. Vertentes-Arruda about the lawyer’s office not opening until 9:00 a.m. and him wanting to speak with duty counsel, Sergeant Rego was also continuing to talk with Mr. Vertentes-Arruda in Portuguese.
103Sergeant Rego had no recollection of Constable Beduz telling him that Mr. Vertentes-Arruda had asked to speak to a specific lawyer or of him mentioning a lawyer’s name. Additionally, Mr. Vertentes-Arruda testified that he had no recollection of Constable Beduz telling him he could not reach “your lawyer.” He testified that the only police officer he spoke to in the booking area was Sergeant Rego and that everything said between them was in Portuguese.
104Between 7:13 a.m. and 7:21 a.m., Constable Beduz used the phone in the booking area to arrange for duty counsel to speak with Mr. Vertentes-Arruda with a Portuguese interpreter. He could not recall who had suggested the need for a Portuguese interpreter.
105Mr. Vertentes-Arruda also testified concerning events in the booking area at 21 Division. He testified that he spoke with Sergeant Rego in Portuguese. However, he maintained that he had difficulty understanding Sergeant Rego’s Portuguese. Asked if he remembered their conversation, Mr. Vertentes-Arruda answered: “A few things, yes.” For example, he testified that Sergeant Rego asked him if he had a lawyer and that he told him "No." Mr. Vertentes-Arruda acknowledged that, at the time, there was no particular lawyer he wanted to speak with.
106Additionally, Mr. Vertentes-Arruda conceded that if he had a specific lawyer in mind, he could have asked Sergeant Rego for help contacting them, as the officer seemed interested in helping him find a lawyer. Further, Mr. Vertentes-Arruda acknowledged that, at the time, he did not think of asking to contact his brother, employer, or union to seek their help to find him a lawyer because of the effects of the alcohol and drugs. However, he maintained that had the police told him these options existed, he would have taken them.
107Ultimately, Mr. Vertentes-Arruda conceded that he took the police up on their offer for him to speak with a free lawyer with a Portuguese interpreter because that was what he wanted. Nevertheless, he testified to being apprehensive about the free lawyer option because he worried it was a trick. He thought the person he would talk to might be another police officer pretending to be a lawyer “to get me.”
The call with duty counsel
108Mr. Vertentes-Arruda entered a private room adjoining the booking area to speak with duty counsel by telephone at 7:22 a.m. After a couple of minutes, he summoned the officers because he had trouble hearing, and Sergeant Rego entered the room and adjusted the volume on the phone. After he left the room, Mr. Vertentes-Arruda spoke privately with duty counsel, with the assistance of a Portuguese interpreter, from 7:24 a.m. until 7:52 a.m.
109Mr. Vertentes-Arruda waived solicitor and client privilege concerning his conversation with duty counsel. He testified about that call, as did the lawyer he spoke with, James Murphy.
110Mr. Murphy has been a lawyer for 35 years. Since 2002, he has served as duty counsel, taking calls from persons detained or arrested who call the Duty Counsel Hotline. He estimated that he takes several thousand calls per year, and on average, about ten of those involve persons arrested for murder.
111Mr. Murphy makes notes using a computer program contemporaneously during each call. His notes from his call with Mr. Vertentes-Arruda were an exhibit to the affidavit he swore, which formed part of the record on the applications.
112Not surprisingly, given the number of calls he takes each year, Mr. Murphy had no independent recollection of his call with Mr. Vertentes-Arruda on December 4, 2020. However, based on his notes and his usual practice for taking translated calls and calls involving persons arrested for murder, he testified concerning what he would have said to Mr. Vertentes-Arruda.
113Mr. Murphy received a call from Constable Beduz at 7:14 a.m. After determining that he would be speaking with Mr. Vertentes-Arruda, ascertaining his charges and that Mr. Vertentes-Arruda needed the assistance of a Portuguese interpreter, Mr. Murphy put the officer on hold. He then arranged for an interpreter through the duty counsel's translation service. After the interpreter was on the line and Mr. Murphy briefed her on the nature of the call she would be assisting with, Mr. Murphy spoke to Constable Beduz to arrange for Mr. Vertentes-Arruda to be put on the line.
114Mr. Murphy spoke with Mr. Vertentes-Arruda for 28 minutes, from 7:24 a.m. until 7:52 a.m. As requested by Mr. Murphy, at the beginning of the call, the interpreter introduced herself to Mr. Vertentes-Arruda as the interpreter and Mr. Murphy as duty counsel.
115According to Mr. Murphy, everything he said was interpreted sentence by sentence by the interpreter to ensure that Mr. Vertentes-Arruda understood. After some preliminary questioning, including obtaining Mr. Vertentes-Arruda's name and ensuring he had privacy, Mr. Murphy was satisfied they could understand one another and proceeded with the call. Mr. Murphy testified that if, at any point, based on Mr. Vertentes-Arruda's responses, he had been concerned that Mr. Vertentes-Arruda did not understand him, he would have arranged for a different interpreter, but the need did not arise.
116As a preliminary matter, Mr. Murphy inquired about Mr. Vertentes-Arruda's physical well-being. In his notes, Mr. Murphy recorded that Mr. Vertentes-Arruda said that he hurt his wrist "when trying to get away from police." (Mr. Vertentes-Arruda had told Sergeant Rego that the handcuffs had hurt his wrist, and he also complained about that pain in the interview room.)
117After reviewing the charges with Mr. Vertentes-Arruda, Mr. Murphy explained at length the process of being questioned by police and his right to silence. He counselled Mr. Vertentes-Arruda not to speak with any police officer or anyone at the division, provide a written or videotaped statement, or agree to be interviewed because anything he said could later form part of the evidence against him in court. He further explained to Mr. Vertentes-Arruda that anything he said could make it harder for his lawyer to defend him later. As a result, Mr. Murphy counselled Mr. Vertentes-Arruda to refrain from saying anything.
118Additionally, Mr. Murphy explained the role of the police and the role of the judge. He told Mr. Vertentes-Arruda that the police are not judges and it is not their role to decide if he is innocent or guilty. The police collect evidence, Mr. Murphy explained to Mr. Vertentes-Arruda. For this reason, he told Mr. Vertentes-Arruda that he should present his case through his lawyer when it eventually gets to court and not make statements of any kind to the police.
119Further, Mr. Murphy provided Mr. Vertentes-Arruda with an explanation of how events would likely unfold after he got off the telephone and detailed the sorts of tactics the police might use to get him to give a statement, including using innocuous questions meant to get him talking and build rapport.
120Mr. Murphy told Mr. Vertentes-Arruda to respond, "No comment," "I want to remain silent," or "The lawyer said don't talk to you." He told him to choose whichever answer he was comfortable repeating and stick with it and repeat it a thousand times if necessary. Mr. Murphy testified that he would have dramatized how to do this for Mr. Vertentes-Arruda's benefit. He told Mr. Vertentes-Arruda that if he became tired by the questioning, he should put his head down on the desk and inform the police he wanted to return to his cell.
121According to Mr. Murphy, as he explained these things to Mr. Vertentes-Arruda, he would pause and ask if he understood and had any questions. He would only move on to another area if he was satisfied that Mr. Vertentes-Arruda understood.
122During the call, Mr. Murphy asked Mr. Vertentes-Arruda if he had a lawyer he had used before or that he might want to use. According to Mr. Murphy, Mr. Vertentes-Arruda did not identify such a lawyer. Nevertheless, Mr. Murphy explained to him that he had the right to consult a lawyer of his choosing, and if there was such a lawyer, he should ask the police to call them.
123Mr. Vertentes-Arruda also testified concerning his call with Mr. Murphy. He explained that at the time, his "head was very confused" because he was still suffering from the effects of the alcohol and cocaine. He acknowledged that because of that, he may have gaps in his memory concerning everything Mr. Murphy told him. During his direct testimony, Mr. Vertentes-Arruda appeared to have difficulty remembering many details concerning his conversation with Mr. Murphy. However, during cross-examination, Mr. Vertentes-Arruda conceded several things concerning his call with duty counsel.
124First, the lawyer explained who he was and the interpreter's role.
125Second, the lawyer ensured he was in a private room and that they understood each other through the interpreter.
126Third, the lawyer spent a long time explaining what would happen next involving the police.
127Fourth, the lawyer told him the police would try to get evidence from him to use against him in his case and told him not to say anything to the police because it would make it harder for his lawyer to defend him later.
128Fifth, the lawyer talked a lot about the right to silence. He told him he was not required to speak with the police and advised him not to do so. The lawyer practiced with him how to exercise his right to silence and encouraged him to respond to the police by saying, "I want to remain silent" or "The lawyer said not to talk to you." Mr. Vertentes-Arruda testified that he understood what the lawyer explained concerning his right to silence.
129Sixth, the lawyer cautioned him that the police could attempt to trick him into making a statement and gave him examples of what they might try to convince him to talk.
130After Mr. Vertentes-Arruda exited the room at 7:53 a.m., Constable Beduz testified that he asked Mr. Vertentes-Arruda if he was satisfied with the advice received from counsel, to which he responded, "Yes." Constable Beduz memorialized that exchange in his police notebook. The officer identified the point in the video recording when this interaction occurred between Mr. Vertentes-Arruda and him.
131In contrast, Mr. Vertentes-Arruda initially testified that after he re-entered the booking area after speaking with duty counsel, Constable Beduz never asked him whether he was satisfied with his conversation with the lawyer. However, during cross-examination, Mr. Vertentes-Arruda ultimately conceded that Constable Beduz did just that and that he responded "Yes."
132Additionally, in the booking area, Mr. Vertentes-Arruda signed an electronic screen using a stylus to confirm that he had spoken with duty counsel (a printout of what he signed became an exhibit at the hearing). Mr. Vertentes-Arruda conceded that police told him that he was signing to acknowledge that he spoke to a lawyer, and he did so.
Events inside the interview room
133After he finished speaking with duty counsel, the police placed Mr. Vertentes-Arruda in an interview room at 7:55 a.m. The events in that room were video and audio recorded in their entirety.
134Seconds after Mr. Vertentes-Arruda entered the interview room, two forensic identification officers joined him to photograph and collect physical evidence from him, including taking his clothing. When one of the officers began speaking to him in English and asked if he understood, Mr. Vertentes-Arruda replied, "A little bit." When told they would take his clothing, he said: "I don't understand, what did you say?" After that, Mr. Vertentes-Arruda appeared to understand the officers' relatively basic instructions, given that he readily complied with their requests.
135After that, Mr. Vertentes-Arruda remained in the interview room alone for an extended period. Eventually, at 10:19 a.m., Constable Larry Cota joined him. Constable Cota initially spoke to Mr. Vertentes-Arruda in English, to which he responded, in a heavy accent, "I don't speak English, buddy." Constable Cota then began speaking to Mr. Vertentes-Arruda in Portuguese (his parents are from Portugal, and he is fluent in the language). A translated transcript of their discussions became an exhibit. Although parts are marked "inaudible" in the translated transcript, Constable Cota provided evidence concerning what he believed was said during some of these exchanges.
136At the outset of their conversation, Constable Cota confirmed with Mr. Vertentes-Arruda that he had spoken with a lawyer. However, when asked, Mr. Vertentes-Arruda said he had no idea why he was in police custody. Constable Cota then began telling Mr. Vertentes-Arruda why he was under arrest. Constable Cota initially said he set fire to the house, to which Mr. Vertentes-Arruda immediately interjected, in English, "That's bullshit; they have proof?" Immediately followed by "I don't want to talk anymore." Despite this, Constable Cota continued telling Mr. Vertentes-Arruda about the charges he faced. Mr. Vertentes-Arruda responded, "I would do that to my daughters? Do you think I would have the courage to do that? ... Of course not, man," followed by "I don't have anything else to say."
137Nevertheless, over the next three hours, with numerous breaks when Constable Cota was out of the room and when Mr. Vertentes-Arruda was taken from the room to use the bathroom, Constable Cota continued speaking with him.
138During their conversation, Mr. Vertentes-Arruda occasionally asserted his right to silence, for example, by saying, "I have nothing else to say," "I don't want to talk about this anymore," “I don't want to talk about that anymore," "When I have something to say, it's with my lawyer," and "I don't want to talk about that." When faced with such responses, Constable Cota sometimes responded by telling Mr. Vertentes-Arruda that he did not need to say anything.
139However, when Constable Cota redirected their conversation towards more innocuous topics, Mr. Vertentes-Arruda invariably kept talking. In this way, Constable Cota employed some of the same interrogation techniques Mr. Murphy had warned Mr. Vertentes-Arruda about when they spoke. Despite Mr. Murphy's advice, Mr. Vertentes-Arruda responded to Constable Cota's questions and comments concerning subjects unrelated to the charges. And occasionally, when the conversation veered toward the allegations, rather than asserting his right to silence, Mr. Vertentes-Arruda maintained that he had nothing to do with starting the fire that caused his mother-in-law's death and insisted he was "innocent."
140Shortly before noon, in response to Constable Cota suggesting to Mr. Vertentes-Arruda that he could contact his brother to bring him some clothes, Mr. Vertentes-Arruda declined that request. He said he did not want to talk anymore and insisted he was innocent. In that context, according to the translation, the following exchange took place between them:
Mr. Vertentes-Arruda: I don't want to talk. I want to talk to my lawyer. I have nothing else to say.
Constable Cota: Do you want to speak to him now? Do you want to speak to your lawyer now?
Mr. Vertentes-Arruda: Not yet .., We'll see ... We'll see the one that the police gave me. I think he is a lawyer. He wants to help me. He's Portuguese.
Constable Cota: Yeah, he's a lawyer.
Mr. Vertentes-Arruda: Is a lawyer?
Constable Cota: Yeah, of course. When you arrive here [unintelligible] "You want to speak to a lawyer?" He's called duty counsel. Do you know what a duty counsel is?
Mr. Vertentes-Arruda: Yeah, but ...
Constable Cota: The government pays for it.
Mr. Vertentes-Arruda: The, ... Ah, free.
Constable Cota: A lawyer for free. Then if you wish to get another lawyer, you can get another lawyer...
Mr. Vertentes-Arruda: I had one from the union. I work for 183. I work for this company; that company has a union.
Constable Cota: Ok. They provide a ...
Mr. Vertentes-Arruda: Yes, I have the right to a lawyer.
Constable Cota: You have the right to one, but you don't have one.
Mr. Vertentes-Arruda: No, I don't have one. That's why I need to speak with the union regarding my rights. Do you understand?
141Their conversation continued, and at approximately 12:10 p.m., Constable Cota was reviewing with Mr. Vertentes-Arruda the circumstances surrounding the events from two nights before that culminated in his arrest for possessing cocaine. It was in that context that the following exchange took place between them:
Mr. Vertentes-Arruda: I don't want to talk about that anymore. I don't want to.
Constable Cota: Okay. You don't need to. These are things that happen at home. Just things from home.
Mr. Vertentes-Arruda: It's a lot, already… Eh, man… Ai, Jesus. Oh my, look at this…
Constable Cota: Okay. And that's all. Just for you to know, okay? There's no more...
Mr. Vertentes-Arruda: Ah, okay. But I don't have anything else to say. Whatever I have to say, it will only be with my lawyer. I want my lawyer, and… and full stop.
Constable Cota: Do you want to speak to a lawyer now?
Mr. Vertentes-Arruda: I have to contact the union to get me a lawyer or the woman that I met this morning.
Constable Cota: Okay. This is important because this this room is being videotaped, and you said this, and this is important. You put me on the spot now. Do you want to speak to a lawyer now? Do you want to speak with a lawyer right now?
Mr. Vertentes-Arruda: Yeah.
Constable Cota: Okay. I ...
Mr. Vertentes-Arruda: But it's not ... I cannot call the union...
Constable Cota: I know.
Mr. Vertentes-Arruda: I know.
Constable Cota: Okay. But I am going to call, uh ... legal aid, which the government provides.
Mr. Vertentes-Arruda: That the government provides...
Constable Cota: Okay, so you want to speak to him now?
Mr. Vertentes-Arruda: It doesn't matter to me.
Constable Cota: No, I'm asking you. You said you wanted to speak to a lawyer.
Mr. Vertentes-Arruda: Okay.
Constable Cota: Okay, okay. No problem. Uhm, do you want me to call a lawyer now that speaks Portuguese? Would you like me to call a lawyer that speaks Portuguese?
Mr. Vertentes-Arruda: Yes, please. Because with English ... I am ...
Constable Cota: It's okay. That's okay. Um, I will go call you a lawyer now.
Mr. Vertentes-Arruda: Okay.
142Constable Cota then left the interview room and consulted with Detective Bryant, who monitored the interview throughout from another room. Constable Cota briefed Detective Bryant on what had transpired up until that point, given that Detective Bryant does not speak Portuguese. After confirming with Constable Cota that Mr. Vertentes-Arruda had not said anything to suggest he did not understand the advice he had already received from duty counsel and that nothing had taken place during the interview to change his jeopardy, Detective Bryant decided not to permit a second consultation with counsel.
143At 12:32 p.m., Constable Cota returned to the interview room. He confirmed with Mr. Vertentes-Arruda that he understood everything the lawyer told him earlier that morning and said to him that nothing had changed. As a result, he explained to Mr. Vertentes-Arruda that he would not be permitted to contact counsel a second time. Mr. Vertentes-Arruda responded by asserting his right to silence again, saying to Constable Cota, "I don't have anything else to say. Everything is done."
144At that point, Constable Cota left the interview room before returning at 12:36 p.m. with a civilian police employee and two other officers. The civilian employee photographed and fingerprinted Mr. Vertentes-Arruda while the two officers stood by. After they left the room, Mr. Vertentes-Arruda asked to use the bathroom, and a short while later, Constable Cota facilitated that request.
145After returning from the bathroom at 1:04 p.m., Mr. Vertentes-Arruda remained in the interview room alone for a period. While he waited for Constable Cota to return, Mr. Vertentes-Arruda appeared to grow increasingly emotional; at one point, he seemed to sob.
146Constable Cota eventually returned to the room at 1:08 p.m. They each began smoking cigarettes that Constable Cota had supplied. While they smoked, Mr. Vertentes-Arruda started sobbing. Between 1:10 p.m. and 1:45 p.m., through intermittent sobs, Mr. Vertentes-Arruda made several incriminating statements to Constable Cota without any prompting by the officer.
147Mr. Vertentes-Arruda told Constable Cota that his wife was having an affair with a former boyfriend and chronicled what he believed she was doing, his frustration with the situation, and his belief that everything was her fault. At one point, he explained that he wanted "to do justice." Mr. Vertentes-Arruda admitted that he went to his in-law's house and retrieved a gas canister from their shed, threw a rock through the window, entered the house, encountered his wife on the stairs, splashed some of the gasoline on her and the floor and ignited it. He denied that he wanted to harm his mother-in-law, who came down the stairs behind his wife, or to harm his children. He said that he helped his daughters escape the fire. Mr. Vertentes-Arruda described his wife running from the house and removing her shirt, which was on fire, and telling her, at some point while that was all happening: "You see what you made me do - this is all your fault." After that, he admitted to running away after seeing what he had done.
148During their time together, Constable Cota and Mr. Vertentes-Arruda spoke while seated across from one another at a small circular table. Throughout, the tone was conversational and friendly. Constable Cota never raised his voice and made no threats or promises. Further, there was nothing about Constable Cota's positioning or conduct that Mr. Vertentes-Arruda could have remotely perceived as intimidating. The only physical contact between them occurred near the interview's end when Mr. Vertentes-Arruda began sobbing and confessing. At points during that period, Constable Cota put his hand on Mr. Vertentes-Arruda's shoulder in an apparent effort to console him.
149Throughout their time together in the interview room, Constable Cota attended to Mr. Vertentes-Arruda's physical needs. The officer provided him with water and regular bathroom breaks, arranged for and supplied him with his diabetes medication and furnished him with two separate McDonald's meals. As noted above, Constable Cota even provided Mr. Vertentes-Arruda with cigarettes and allowed him to smoke in the interview room.
150Constable Cota and Mr. Vertentes-Arruda each gave extensive evidence concerning the events culminating in his confession.
151Constable Cota's cross-examination mainly focused on what he said and did not say to Mr. Vertentes-Arruda in the interview room. For example, Constable Cota conceded that he did not inform Mr. Vertentes-Arruda of his right to counsel in Portuguese. Constable Cota explained that before he entered the interview room, he understood that Mr. Vertentes-Arruda had already been apprised of his rights and spoken with counsel. The officer also acknowledged not telling Mr. Vertentes-Arruda at the outset that they were being recorded in the interview room. However, he maintained that would have been obvious because of the camera's conspicuous placement in the room. Much of the cross-examination of Constable Cota involved suggestions concerning how one might construe some of the things said by Mr. Vertentes-Arruda during the interview. Ultimately, the officer's interpretation added little to the inquiry. The recorded interview speaks for itself.
152Mr. Vertentes-Arruda testified that, at the time, he did not know that events in the interview room were being video-recorded. However, he acknowledged that did not ultimately impact his decision to tell Constable Cota what happened. Further, Mr. Vertentes-Arruda testified that he understood Constable Cota was there to discuss what happened with him. Mr. Vertentes-Arruda testified that while inside the interview room, his head was "like a bomb," a Portuguese expression which he explained means "very confused," because the effects of the drugs and alcohol. However, he also testified that by the time he was in the interview room with Constable Cota, their effect had dissipated and "I was better."
153Initially, Mr. Vertentes-Arruda testified that in the interview room, he did not understand that he could refuse to speak with Constable Cota and did not know his rights. However, he ultimately acknowledged that the lawyer had told him he was not required to talk to the police and that he could refuse to speak with them. He also conceded that he knew he had three options while in the interview room. First, he could choose not to talk to the police, as duty counsel had advised. Second, he could tell the police what he did and explain to them why he did it. And lastly, he could lie to the police. Mr. Vertentes-Arruda acknowledged that he chose from those three options at various times during the interview.
154Mr. Vertentes-Arruda testified that during the interview, he implemented what duty counsel had advised him to do and asserted his right to silence at various points. However, he conceded that he wanted to learn what the police knew and, because of that, initially decided to speak with Constable Cota.
155Concerning his request to speak with counsel during the interview, Mr. Vertentes-Arruda initially testified that he wanted to call a lawyer "so I could be more sure of what I could do, given the situation I was in." Later in his evidence, he testified, "I did not trust the other lawyer" [duty counsel] and said he was unsure if "he was a police officer or a real lawyer."
156Defence counsel asked Mr. Vertentes-Arruda what he thought when he said, during the interview, "I have to contact the union to get me a lawyer or the woman that I met this morning." Mr. Vertentes-Arruda testified to knowing that the union would arrange a lawyer and that he wanted to speak with such a lawyer about what to say to the police. He testified that when he said, "the woman I met this morning," he meant the Portuguese interpreter who translated his call with duty counsel.
157Mr. Vertentes-Arruda testified that he wanted to contact his union to help him get a lawyer, but Constable Cota said that was not an option. He accepted that, thinking that the police did not have the phone number for his union, and it did not occur to him at the time that the police could obtain the number. However, when asked, still during direct examination, whether he believed he knew all his rights before speaking with Constable Cota, Mr. Vertentes-Arruda responded, "More or less.”
158Mr. Vertentes-Arruda acknowledged lying to Constable Cota at various points during the interview, for example, by telling him he did not know why he was under arrest, denying having anything to do with starting the fire, and claiming he was innocent. Mr. Vertentes-Arruda testified that he ultimately became "fed up" with telling lies and decided to tell the truth because he thought it was the right thing to do, and he no longer wanted to have "pain in his heart" because he knew he had done something wrong. Mr. Vertentes-Arruda explained that he reached a point when he decided to tell Constable Cota what happened because he was a Portuguese-speaking officer and understood him. The following exchanges with Crown counsel during cross-examination provide insight into Mr. Vertentes-Arruda's thought process at the time:
Q. You wanted him to understand what [your wife] did to you, and why it made you so angry, so he would understand. Agree?
A. Yeah, yeah, I agree.
Q. Mr. Arruda, at this point in the interview, you decide you want Officer Larry to know that, yes, you set the fire, but really it's [your wife's] fault. Agree?
A. I agree, yes.
Q. And the reason [your wife] was to blame is because [your wife] had cheated on you.
A. I agree.
Q. And she didn't just cheat on you; she cheated on you, and she lied, and she lied, and she lied about it. Didn't she? Agree?
A. I agree.
Q. And you wanted Officer Larry to know that that's why you did such an awful thing. Agree?
A. I agree.
II. LAW, FINDINGS, AND ANALYSIS
159As noted, the Crown's application for a ruling that Mr. Vertentes-Arruda's videotaped statement was voluntary and his application claiming police violated his right to counsel guaranteed by section 10(b) of the Charter and to exclude his statement under section 24(2), were the subject of a blended hearing. This part will address each of these applications in turn.
A. The Crown's Voluntariness Application
160This part addresses whether the Crown has proven the voluntariness of Mr. Vertentes-Arruda's statement beyond a reasonable doubt.
Positions of the parties
161The Crown submits that the court should be satisfied beyond a reasonable doubt that Mr. Vertentes-Arruda's videotaped statement was voluntary.
162Mr. D'Iorio, for the Crown, notes that there were no threats or promises and argues there was nothing oppressive about the events culminating in Mr. Vertentes-Arruda's confession.
163Mr. D'Iorio submits that the evidence overwhelmingly establishes that Mr. Vertentes-Arruda was fully aware of his choices after consulting with counsel, including his right to remain silent, and that he made a deliberate choice to confess to Constable Cota.
164Mr. D'Iorio contends that the record does not establish any reason to doubt the voluntariness of Mr. Vertentes-Arruda's videotaped statement. As a result, he submits the court should conclude that the confessions rule does not preclude its admission into evidence.
165In contrast, Mr. Dos Santos, on behalf of Mr. Vertentes-Arruda, challenges the voluntariness of his client's statement. While conceding that there were no threats or promises, he submits that when the court considers all the circumstances in context, as the law requires, it should have a reasonable doubt concerning the statement's voluntariness.
166In making that submission, Mr. Dos Santos raised a few discrete concerns about how Mr. Vertentes-Arruda's confession came about. He argued that together, they should leave the court with reasonable doubt concerning the voluntariness of his statement.
167First, he primarily relies on the failure of any police officer to tell Mr. Vertentes-Arruda that he was under no obligation to make a statement. Although Constable Beduz testified that he gave the caution shortly after Mr. Vertentes-Arruda's arrest, Mr. Dos Santos argues the court should not credit that evidence. Further, Mr. Dos Santos argues that even if the caution was provided in English, it could not have possibly registered with Mr. Vertentes-Arruda because of his lack of fluency. Critically, he notes that neither Sergeant Rego nor Constable Cota ever provided the caution to Mr. Vertentes-Arruda in Portuguese. Mr. Dos Santos submits that the consultation with duty counsel does not cure this fatal shortcoming. He also notes that Mr. Murphy had no independent recollection of speaking with Mr. Vertentes-Arruda. Therefore, Mr. Murphy's evidence that he would have explained the right to silence to Mr. Vertentes-Arruda cannot serve as a replacement for the failure of the police to provide the caution.
168Second, Mr. Dos Santos notes that at the start of the interview, Constable Cota failed to tell Mr. Vertentes-Arruda that the police were recording their conversation. He submits that the police are required to do so, and that this failure detracts from finding that Mr. Vertentes-Arruda knew that what he said could be used against him and undermines the voluntariness of his statement.
169Third, Mr. Dos Santos submits that the combined effect of various circumstances in the interrogation room created an atmosphere of oppression. During the interview, Mr. Vertentes-Arruda was still experiencing the aftereffects of the alcohol and cocaine he consumed. Further, there is little chance that Mr. Vertentes-Arruda slept the preceding evening. Finally, he was in the interview room for five hours and questioned for nearly three before he confessed.
170The cumulative effect of all this, Mr. Dos Santos submits, should leave the court with a reasonable doubt concerning the voluntariness of Mr. Vertentes-Arruda's statement.
Governing principles
171Under the common law confessions rule, a statement by an accused to a person in authority is presumptively inadmissible unless the Crown proves beyond a reasonable doubt that it was voluntary: see R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 11; R. v. Tessier, 2022 SCC 35, 419 C.C.C. (3d) 1, at para. 68; R. v. Beaver, 2022 SCC 54, 420 C.C.C. (3d) 421, at para. 45.
172The concerns that animate the rule are twofold. First, reliability, to exclude unreliable evidence and protect against the danger of wrongful convictions. And second, fairness, to protect suspects from abuses of state power by discouraging coercive interrogation techniques: see R. v. Hodgson, 1998 CanLII 798 (SCC), [1998] 2 S.C.R. 449, at paras. 17-19; Tessier, at para. 70; Beaver, at para. 47. The rule strives to balance these concerns with society's interest in police having the necessary latitude to investigate and solve crimes: see R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 33; Tessier, at paras. 4, 69; Beaver, at para. 46.
173These competing interests inform what the Crown must prove to establish that a statement by an accused was "voluntary," a concept which encompasses "a complex of values": Oickle, at para. 70. Ultimately, in deciding whether a statement was voluntary, "a trial judge must determine, based on the whole context of the case, whether the statements made by an accused were reliable and whether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to a person in authority.": Tessier, at para. 68. See also: Tessier, at paras. 8, 52; Beaver, at para. 48; R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at para. 53.
174As such, the inquiry does not lend itself to any hard and fast rules because an unduly rigid approach cannot account for the myriad of circumstances that may serve to vitiate the voluntariness of a confession: see Oickle, at para. 47; see also Spencer, at para. 11; Tessier, at para. 43.
175Instead, a judge must consider all the circumstances and a host of relevant factors to decide whether the Crown has proven the voluntariness of an accused's statement to a person in authority beyond a reasonable doubt. The factors include the presence or absence of a police caution, whether the accused had an "operating mind," any threats or promises by the police, the existence of "oppressive conditions," and any police trickery that would "shock the community": see Beaver, at para. 48; Spencer, at para. 12; Oickle, at paras. 47-71.
Findings
176Before turning to an application of the governing principles to the circumstances of this case, it is necessary to address the disputed facts on this application.
177There was conflicting evidence concerning whether Constable Beduz provided Mr. Vertentes-Arruda with his rights to counsel and the common law cautions after taking custody of him. The officer testified that he did, whereas Mr. Vertentes-Arruda testified that the only thing he said to Constable Beduz was that he did not speak English and that they did not speak again after that. In contrast, Constable Beduz denied having any reason to doubt that Mr. Vertentes-Arruda understood English.
178The court's findings concerning what was said between Constable Beduz and Mr. Vertentes-Arruda after the officer assumed custody of him shortly after his arrest are relevant to the voluntariness of Mr. Vertentes-Arruda's statement and his Charter claims.
179Ultimately, where there are differences between their evidence, I accept Constable Beduz’s evidence over that of Mr. Vertentes-Arruda for a few reasons. Firstly, when arrested, Mr. Vertentes-Arruda was still under the influence of the considerable amount of alcohol and cocaine he consumed that day, including in the period shortly preceding his arrest. Because of that, his memory of the circumstances surrounding his arrest and its immediate aftermath is incomplete and entirely unreliable; he conceded as much during his testimony.
180Secondly, it defies coincidence that Constable Beduz would testify that Mr. Vertentes-Arruda provided the name "Michael Lima Garden" when asked if there was a lawyer he wanted to call unless he said that. After all, at the time, Mr. Vertentes-Arruda was working for a company named "Lima's Garden." Constable Beduz could not have possibly pulled the name "Michael Lima Garden" out of thin air. Given the similarity with the business name of his employer, that "name" had to have come from Mr. Vertentes-Arruda.
181That supports a finding that, contrary to Mr. Vertentes-Arruda's evidence, after Constable Beduz took custody of him, he and Mr. Vertentes-Arruda had a conversation. That conclusion is bolstered further by the fact that the arrest report that Constable Beduz completed before they left for the police division contained many of Mr. Vertentes-Arruda's accurate biographical details, which only he could have provided to the officer.
182Third, beyond issues with the reliability of his memory, there are credibility concerns with Mr. Vertentes-Arruda's evidence. He lied to Constable Cota on several occasions during the interview. Additionally, his testimony was inconsistent with what he told his lawyer concerning his interaction with Constable Beduz. It appears from what was included in the Statement of Anticipated Evidence that Mr. Vertentes-Arruda told defence counsel that he informed Constable Beduz that he did not speak English and asked him to call "his boss and friend Michael Lima," his brother, or someone from his union. In contrast, Mr. Vertentes-Arruda testified that he only told Constable Beduz that he did not understand English and insisted they had no conversation after that. He further testified that he did not know anyone named "Michael Lima" and that his boss's name was "Virgilio." This is a material inconsistency and not explainable as a mere miscommunication.
183In contrast, I believe Constable Beduz's account of the relevant events. The officer's testimony was consistent throughout, and he withstood the probing scrutiny of a vigorous cross-examination.
184Additionally, there is much similarity between Constable Beduz's description of how Mr. Vertentes-Arruda responded to each question in the arrest script and how he answered the same questions when Constable Saha asked them two nights before. Mr. Vertentes-Arruda mostly answered "Yes" to the questions posed during both interactions, which he would have been capable of saying even though his English was somewhat limited. The only difference is that Mr. Vertentes-Arruda did not invoke his right to counsel with Constable Saha but did so when speaking to Constable Beduz, albeit by asking to contact a non-existent lawyer.
185Constable Saha finalized his notes shortly after he arrested Mr. Vertentes-Arruda, almost thirty hours before Constable Beduz dealt with him. Constable Saha could not have fabricated his account to match that provided by Constable Beduz. The parallels between how each described Mr. Vertentes-Arruda responding to the questions posed in the arrest script supports Constable Beduz's account and gives further reason to credit his evidence.
186It deserves mention that I have considered and rejected defence counsel's submission that Constable Dhillon's inability to recall precise details of the conversation between Constable Beduz and Mr. Vertentes-Arruda undermines Constable Beduz's credibility and supports a finding that the conversation never occurred, as Mr. Vertentes-Arruda claimed. I accept Constable Dhillon's explanation that her inability to do so stemmed from the cursory notes she made and the passage of time and nothing more. Critically, she stood firm in her testimony that she heard enough to know that shortly after they took custody of Mr. Vertentes-Arruda, Constable Beduz provided him with his rights to counsel and cautions and that he appeared to understand. I believe Constable Dhillon.
187With the only factual disputes relevant to the question of voluntariness resolved, these reasons now turn to an assessment of the critical question in this part: whether the Crown has proven beyond a reasonable doubt that Mr. Vertentes-Arruda's confession was voluntary.
Analysis
188These reasons will now consider the various factors identified in the Supreme Court of Canada's voluntariness jurisprudence, as they relate to all the circumstances of this case, to assess whether Mr. Vertentes-Arruda's confession to Constable Coda was "voluntary,"
- Did the police caution Mr. Vertentes-Arruda?
189Firstly, Constable Beduz cautioned Mr. Vertentes-Arruda as the law requires. Therefore, strictly speaking, this is not a case where a failure by the police to do so before questioning a suspect or arrestee affords prima facie evidence of involuntariness: see Tessier, at paras. 11 and 89. Nevertheless, whether Constable Beduz provided the caution and whether Mr. Vertentes-Arruda understood it are separate questions.
190To be sure, Mr. Vertentes-Arruda's responses, when informed of his right to counsel and provided with the cautions, would not have given Constable Beduz any reason to doubt his comprehension. After all, Mr. Vertentes-Arruda answered in the affirmative with each question when asked if he understood; critically, he never said, "I don't understand" or "I don't speak English." That he spoke with a thick accent and later told the officer that he was originally from Portugal would not make it objectively apparent that comprehension was an issue for him.
191However, given all the evidence, especially that of Mr. Vertentes-Arruda's wife, it is unlikely that Mr. Vertentes-Arruda understood everything that Constable Beduz told him. Because of his somewhat limited proficiency in English and the rather formal wording of the primary caution - for example, "You are not obliged to say anything unless you wish to do so" - it is rather doubtful that Mr. Vertentes-Arruda fully understood that caution. In that regard, his responses were more likely the result of the emboldening influence of the alcohol and cocaine he ingested than an accurate indication of his actual comprehension.
192Based only on what Constable Beduz told him, given Mr. Vertentes-Arruda's limited English comprehension and the failure of either Sergeant Rego or Constable Cota to provide him with the caution in Portuguese, nothing the police said would have furnished Mr. Vertentes-Arruda with an awareness of his right to silence and the potential consequences of speaking to the police. That could have gone some distance toward creating a reasonable doubt concerning the voluntariness of Mr. Vertentes-Arruda's statement, especially when combined with Constable Cota's failure to tell him at the outset that the police were recording events in the interview room: see Tessier, at para. 88.
193Despite all this, based on the entirety of the evidence, when he was in the interview room speaking with Constable Cota, Mr. Vertentes-Arruda undoubtedly understood that he was not obligated to talk to the police and that anything he said could be used as evidence against him. There are a few reasons for coming to that conclusion.
194First, there is Mr. Murphy's testimony that he spent an extended period explaining the right to silence to Mr. Vertentes-Arruda and counselling him not to say anything to the police during their 28-minute telephone conversation through a Portuguese interpreter. Mr. Murphy impressed me as a conscientious lawyer, and I unreservedly accept his testimony.
195Second, there is Mr. Vertentes-Arruda's testimony in which he conceded that Mr. Murphy covered all that at length. Mr. Vertentes-Arruda agreed that duty counsel told him he was not required to speak with the police, that anything he said would make it harder for his lawyer to defend him and advised him not to say anything for that reason. Additionally, Mr. Vertentes-Arruda acknowledged that while in the interview room, he knew one of his options was to refrain from speaking to Constable Cota.
196Third, there is the fact that during the interview with Constable Cota, Mr. Vertentes-Arruda asserted his right to silence several times. That unquestionably demonstrates that he understood the right to silence and how to exercise it.
197For these reasons, I am satisfied that the failure of the police to administer the caution in Portuguese had no impact on Mr. Vertentes-Arruda's eventual confession to Constable Cota. Critically, when he entered the interview room, Mr. Vertentes-Arruda fully understood his right to silence and the consequences of making a statement: see Tessier, at para. 88; Singh, at para. 33. As a result, the failure of the police to translate the caution into Portuguese played no role in Mr. Vertentes-Arruda's eventual confession.
- Did Mr. Vertentes-Arruda have an "operating mind"?
198To be voluntary, an accused's statement to someone in authority must be the product of an "operating mind." That "requires that the accused possess a limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused.": R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914, at para. 46. That test does not require that an accused be capable of "making a good or wise choice or one that is in his or her best interest.": Whittle, at para. 46.
199Mindful of the relevant test, Mr. Vertentes-Arruda had an operating mind during his police interview. Although in the interview room, Mr. Vertentes-Arruda was likely still experiencing some of the effects of the alcohol and cocaine he consumed in the hours before his arrest and was undoubtedly tired; he had no difficulty speaking with Constable Cota, his responses were in keeping with the context, and as noted, he asserted his right to silence on several occasions. Given all this, Mr. Vertentes-Arruda had an "operating mind."
- Did the police make any threats or promises?
200Concerns regarding the effect of threats or promises are at the "core of the confessions rule" (Oickle, at para. 48) because of their potential to compel or induce unreliable statements from those interrogated by the police: see Oickle, at paras. 48-57.
201However, during the interview, Constable Cota never said anything expressly or implicitly threatening to Mr. Vertentes-Arruda. Further, although Constable Cota told Mr. Vertentes-Arruda that he was willing to help him, for example, by contacting his brother or taking steps to locate his missing phone, there was no quid-pro-quo linked to these offers of assistance, which were far from significant enough to induce Mr. Vertentes-Arruda to confess: see Oickle, at paras. 56-57; Spencer, at para. 15.
202As a result, neither threats nor promises played any role in bringing about Mr. Vertentes-Arruda's confession.
- Was there anything oppressive about the circumstances?
203The Supreme Court of Canada has recognized that oppressive circumstances can serve to vitiate the voluntariness of a confession. In Oickle, it observed that if "police create conditions distasteful enough," there is the danger of a suspect or accused making "a stress-compliant confession to escape those conditions.": at para. 58.
204While there is no exhaustive list of circumstances that can occasion an atmosphere of oppression capable of casting doubt on the voluntariness of a statement, the relevant considerations identified by the Supreme Court include denying food, clothing, water, sleep, or medical attention, denying access to counsel, excessively aggressive and intimidating questioning over a long period, and the use of non-existent evidence: see Oickle, at paras. 60-61; Beaver, at para. 49; Tessier, at para. 99.
205Nothing was oppressive about the three-hour interview culminating in Mr. Vertentes-Arruda's confession. Constable Cota conscientiously attended to each of Mr. Vertentes-Arruda's physical needs throughout the interview. Additionally, the questioning was neither aggressive nor intimidating. On the contrary, the officer's tone was consistently conversational and friendly.
206Although the police did not afford Mr. Vertentes-Arruda a further opportunity to consult counsel during the interview after he had already spoken with duty counsel before it began, this is not a case involving a suspect enduring the vicissitudes of prolonged interrogation without ever being given access to counsel.
207Finally, although Mr. Vertentes-Arruda was undoubtedly still feeling some of the effects of the drugs and alcohol he had consumed and was tired (he yawned on several occasions during the interview), notably, he never fell asleep when left alone for extended periods in the interview room, never said he was too tired to continue and never asked for a break to rest.
208In short, this is not a case involving an accused who could no longer endure the intolerable circumstances they confronted in the interrogation room and confessed because that was their only viable means of escape.
- Did the police use trickery that would "shock the community"?
209This factor stands somewhat apart from the others, as the Supreme Court explained in Oickle, although "still related to voluntariness, its more specific objective is maintaining the integrity of the criminal justice system:" at para. 65. It does not prevent the police from resorting to tricks or other forms of deceit to obtain a confession. Instead, it prohibits them from using extreme tactics that would shock the community: see Oickle, at para 66.
210The police, in this case, did not use any trickery or deception to secure Mr. Vertentes-Arruda's confession. Although Constable Cota did not tell Mr. Vertentes-Arruda at the outset that events in the interview room were subject to recording, it is apparent that that was not part of any deliberate strategy. After all, the camera was located conspicuously in the room, and later, during the interview, Constable Cota said, "This room is being videotaped."
211There was nothing about the circumstances under which Mr. Vertentes-Arruda came to confess that would serve to shock the community and necessitate the exclusion of his statement to preserve the integrity of the criminal justice system.
- Conclusion
212It is apparent from the record, including, most critically, Mr. Vertentes-Arruda's testimony, that, fully aware of his right not to make a statement to the police, he nevertheless chose to confess to starting the fire that caused the death of his mother-in-law.
213Mr. Vertentes-Arruda testified to becoming "fed up" with telling lies during the interview and deciding instead to tell the truth because it was the right thing to do, and he no longer wanted "pain in his heart" because he knew he had done something wrong.
214Ultimately, Mr. Vertentes-Arruda decided to tell Constable Cota what happened because he was a Portuguese-speaking officer and understood him. Mr. Vertentes-Arruda confessed because he wanted Constable Cota to know what had led him to do what he did.
215Critically, Mr. Vertentes-Arruda did not suggest that he felt he had no choice but to confess because of anything Constable Cota said or did or because of the effects of fatigue, alcohol and drugs or anything unpleasant about the situation he confronted in the interview room.
216Given all the circumstances, the Crown has proven beyond a reasonable doubt that Mr. Vertentes-Arruda's statement to Constable Cota was voluntary. Mr. Vertentes-Arruda made an informed choice to confess to Constable Cota, and nothing about the circumstances raises any concerns regarding the reliability of his confession.
B. Mr. Vertentes-Arruda's Section 10(b) Charter Application
217Mr. Vertentes-Arruda claims that the police breached his section 10(b) Charter right in three ways. The Crown denies each of the violations that Mr. Vertentes-Arruda alleges. This part analyzes each of the claims in turn.
1. Did the police fulfill their duty to inform Mr. Vertentes-Arruda of his right to counsel?
218Mr. Vertentes-Arruda claims the police violated his section 10(b) Charter right by failing to advise him of his right to counsel upon arrest and further by failing to facilitate the provision of that information in Portuguese. The Crown contends that the evidence does not support either of these interrelated claims.
Governing principles
219In Bartle, the Supreme Court of Canada concisely summarized the duties section 10(b) of the Charter imposes upon the police when they detain or arrest an individual, which include:
(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).
R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at para. 16. See also: R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at paras. 21-23; R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190, at pp. 13-14; R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at pp. 20-21; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 23.
220The first duty is informational. The second and third duties are implementational and only triggered if the detainee invokes their right by asking to speak with a lawyer: see Bartle, at para. 17; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 27.
221The informational duty obligates the police to advise the individual "about Legal Aid and duty counsel services which are in existence and available in the jurisdiction at the time," which "need consist of no more than telling a detainee in plain language" of the existence of the "phone number" by which they may "contact a lawyer right away": Bartle, at para. 28.
222Also, as part of their informational duty, when a person under detention or arrest is advised of their right to counsel and indicates that they do not understand, or it is apparent that they do not, the police must take further steps to facilitate their understanding: see R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 31; Bartle, at para. 19; Evans, at p. 22; R. v. Baig, 1987 CanLII 40 (SCC), [1987] 2 S.C.R. 537, at para. 6; R. v. Culotta, 2018 ONCA 665, 142 O.R. (3d) 241, at para. 38, aff'd 2018 SCC 57, [2018] 3 S.C.R. 597; R. v. Dunford, 2017 SKCA 1, 345 C.C.C. (3d) 374, at para. 27.
223In circumstances where language difficulties are the apparent cause of an individual’s inability to understand, the police’s informational duties under section 10(b) include facilitating a translation of the required information into the language the person understands: see R. v. Tam (1995), 1995 CanLII 16084 (BC CA), 100 C.C.C. (3d) 196 (B.C.C.A.), at para. 53; R. v. Vanstaceghem (1987), 1987 CanLII 6795 (ON CA), 36 C.C.C. (3d) 142 (Ont. C.A.), at pp. 148-149.
Analysis
224As noted above, I accept Constable Beduz’s evidence over that of Mr. Vertentes-Arruda. That includes Constable Beduz’s testimony that he apprised Mr. Vertentes-Arruda of his right to counsel and that as he proceeded through the arrest script and asked Mr. Vertentes-Arruda if he understood each of the things he was told, Mr. Vertentes-Arruda responded in the affirmative in English each time. Notably, Mr. Vertentes-Arruda never told Constable Beduz he did not understand and at no point responded in a way that might have suggested a lack of understanding on his part.
225In these circumstances, the police were not constitutionally obligated to take further steps to fulfill their informational duty, for example, by arranging to have Mr. Vertentes-Arruda’s rights read to him in Portuguese. Constable Beduz had no reason to discount his assertions that he understood simply because Mr. Vertentes-Arruda had a thick accent. In short, the officer was entitled to take Mr. Vertentes-Arruda at his word.
226Nevertheless, based on the evidence at this hearing, for the same reasons explained above for doubting that Mr. Vertentes-Arruda understood the caution, I am less than confident he understood everything Constable Beduz told him about his right to counsel. In that regard, it was most likely cocaine and alcohol-fueled bravado that led Mr. Vertentes-Arruda to say he understood everything the officer told him even though he most probably did not. Ultimately, however, whatever Mr. Vertentes-Arruda may have missed in English made little practical difference.
227At 21 Division, Sergeant Rego told Mr. Vertentes-Arruda everything that section 10(b) required in Portuguese. He informed Mr. Vertentes-Arruda that he had the right to call a lawyer and have the assistance of a Portuguese interpreter. When Mr. Vertentes-Arruda said he did not have a lawyer, Sergeant Rego advised him of the availability of duty counsel. He told him that duty counsel was a lawyer who could provide him with free legal advice. In response, Mr. Vertentes-Arruda asked to speak with duty counsel.
228Based on this record, Mr. Vertentes-Arruda has not established his claim that police breached his section 10(b) Charter right by failing to fulfill their informational duties under that provision.
2. Did the police violate Mr. Vertentes-Arruda’s right to counsel of choice?
229Mr. Vertentes-Arruda claims that the police violated his right to counsel of choice. He does not preface that claim on the sufficiency of Constable Beduz’s efforts to contact “Michael Lima Garden,” a non-existent lawyer. Instead, Mr. Dos Santos submits the breach results from the failure of the police to tell Mr. Vertentes-Arruda that he could call any lawyer he wished or contact someone else to help him find a lawyer. By failing to provide him with that additional information and steering him toward duty counsel, Mr. Dos Santos argues that police breached Mr. Vertentes-Arruda’s section 10(b) Charter right.
230In contrast, the Crown submits the police provided Mr. Vertentes-Arruda with everything section 10(b) required. Mr. Vertentes-Arruda wanted to speak with duty counsel, and he did. He never said he wanted to call his brother, employer, or anyone else to help him find a lawyer. Mr. D’Iorio argues duty counsel apprised Mr. Vertentes-Arruda of his right to silence and how to exercise it, which is the very purpose of section 10(b) of the Charter. He notes that Mr. Vertentes-Arruda testified he understood his right to silence, and his conduct in the interview room demonstrates he did. Further, Mr. D’Iorio argues that the facts refute the claim that police “steered” Mr. Vertentes-Arruda toward duty counsel.
Governing Principles
231It is now well-established that section 10(b) of the Charter includes the right of a person detained or arrested to consult a lawyer of their choosing: see R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3, at pp. 11-15; R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, at p. 155; Willier, at paras. 24, 35.
232In its decisions recognizing and reaffirming the right to counsel of choice, the Supreme Court of Canada has never suggested that, as a corollary to that right, there are additional informational duties on the police at the outset of detention or arrest beyond those identified in Bartle and Brydges. Those decisions recognize an obligation on police to tell those they detain or arrest without delay that they have the right to retain and instruct counsel and to inform them of any available services for free and immediate legal advice, including providing them with the phone number to access such services.
233After being informed of their right to retain and instruct counsel, if the detained or arrested individual invokes their right to counsel of choice by asking to speak with a specific lawyer, that will trigger the implementational duties of the police. The police must then afford the person under detention or arrest a reasonable opportunity to consult the lawyer they want to speak with and, in the interim, hold off on questioning or otherwise attempting to elicit evidence from them. However, the duty to hold off will expire if the person is not "reasonably diligent" in exercising their right to counsel: see Ross, at para. 17; Black, at p. 155; Willier, at paras. 33-35.
234In jurisdictions like Peel Region, where the police have assumed the responsibility of contacting counsel rather than providing those they detain or arrest with direct access to a phone or the Internet, the police must exercise the same diligence expected of those under detention or arrest when it comes to contacting counsel of choice: see R. v. Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, at para. 43; R. v. O'Shea, 2019 ONSC 1514, 372 C.C.C. (3d) 352, at para. 42; R. v. Doobay, 2019 ONSC 7272, 61 M.V.R. (7th) 225, at paras. 30-31. That means the police must take "all steps that [are] reasonable in the circumstances" to put a person in contact with their chosen lawyer: O'Shea, at para. 22.
235As a result, in such jurisdictions, if the detainee indicates that they need to contact a third party, be it a relative, friend, employer, or their union, to get the name or phone number of a lawyer they want to speak with, undoubtedly, the obligation on the police to take reasonable steps to facilitate contact with counsel of choice requires that they act on such a request unless it would run a realistic risk of jeopardizing an ongoing investigation: see R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435, at paras; 7-8; R. v. Kumarasamy (2002), 22 M.V.R. (4th) 234 (Ont. S.C.), at paras. 23-26; R. v. Antoninas, 2014 ONSC 4220, at para. 60; R. v. Dickson, 2021 ONSC 6374, 88 M.V.R. (7th) 132, at para. 99.
236Finally, courts have invariably found violations of s. 10(b) in cases where those under detention or arrest asserted their right to counsel of choice but then instead spoke with duty counsel because police steered them in that direction and effectively left them with the erroneous impression that they had no other option: see R. v. Jhite, 2021 ONSC 3036, 405 C.C.C. (3d) 381, at paras. 45-46; R. v. Singh, 2020 ONSC 1342, at para. 17; R. v. Lewis, 2019 ONSC 5919, 451 C.R.R. (2d) 190, at paras. 44-45; R. v. Vernon, 2015 ONSC 3943, 88 M.V.R. (6th) 84, at paras. 32-33, leave to appeal refused 2016 ONCA 211; R. v. Michael, 2017 ONSC 4579, 17 M.V.R. (7th) 308, at paras. 24-25; R. v. Zaidi (2007), 2007 CanLII 44833 (ON SC), 164 C.R.R. (2d) 271 (Ont. S.C.), at para. 77; Kumarasamy, at para. 29. Section 10(b) is breached in such circumstances because the actions of the police undermine the right to counsel of choice.
Analysis
237Given the governing principles, based on the record and the court's findings, Mr. Vertentes-Arruda has failed to establish a violation of his section 10(b) Charter right to counsel of choice. I will briefly explain that conclusion.
238First, even though not required by the Supreme Court’s decisions in Bartle and Brydges, reading from the pre-printed script in his notebook, Constable Beduz told Mr. Vertentes-Arruda: “You have the right to telephone any lawyer you wish” and asked him, “Do you understand? Mr. Vertentes-Arruda responded, "Yes, Sir." As explained above, given that response and the others he provided, Constable Beduz had no reason to doubt Mr. Vertentes-Arruda’s comprehension.
239Second, Mr. Vertentes-Arruda never, in fact, invoked his right to counsel of choice. Although when Constable Beduz first took custody of him and initially asked if he wanted to call a lawyer, Mr. Vertentes-Arruda said, "Yes, I have a lawyer, Michael Lima Garden," and claimed he had used him before and that he practiced in Toronto, none of that was true. Of course, that begs the question, why did Mr. Vertentes-Arruda say all that?
240Recall that when Constable Beduz first told Mr. Vertentes-Arruda the charges for which he was under arrest, he responded rather defiantly, no doubt still experiencing the emboldening effects of the alcohol and cocaine he had ingested, by asking: "With what proof?" When Constable Beduz immediately responded, "First of all, you still smell like gasoline," remembering his right to a lawyer, which Constable Saha informed him of only two nights before, Mr. Vertentes-Arruda continued in the same vain and replied, "Okay, then, I'll call my lawyer."
241Shortly after, when Constable Beduz got to the point in the arrest script when he asked Mr. Vertentes-Arruda if he wished "to call a lawyer now," still very much feeling the effects of the alcohol and cocaine, Mr. Vertentes-Arruda persisted with the lie that he had a lawyer and simply made up a name. In doing so, he took inspiration from the name of the company that employed him.
242In these circumstances, by no reasonable measure can Mr. Vertentes-Arruda be said to have invoked his right to counsel of choice. His comment was not a bona fide request to speak with a lawyer of his choosing. It was a flippant remark of no more legal significance than had he identified some other fictional character, for example, "I want to speak with my lawyer, James Bond." Of course, Constable Beduz did not know that at the time, hence his efforts back at 21 Division to locate a lawyer by that name through a Google search.2
243More importantly, when speaking with Sergeant Rego in Portuguese, Sergeant Rego told him that he had the right to consult a lawyer and asked if he had one. At that point, Mr. Vertentes-Arruda, likely a bit more sober, finally decided to take the situation more seriously by telling the truth: he did not have a lawyer. Nor did he say anything about wanting to call someone who could assist him in identifying a lawyer for him to consult. Given all this, Mr. Vertentes-Arruda never, in fact, invoked his right to counsel of choice.
244Third, because he did not have a lawyer of his own, and at that point, at least, it had not crossed his mind that his brother or union might be able to assist him in contacting one, Mr. Vertentes-Arruda decided he wanted to speak with duty counsel. Sergeant Rego had explained that option to him, and Mr. Vertentes-Arruda chose it. Mr. Vertentes-Arruda testified that he asked for that because that was what he wanted at the time.
245In summary, Mr. Vertentes-Arruda never invoked his right to counsel of choice. Instead, he asserted his right to consult a lawyer by asking to speak with duty counsel. Mr. Vertentes-Arruda received precisely what he asked for. As a result, he has failed to establish that the police breached his right to counsel of choice.
3. Did the police violate section 10(b) of the Charter by denying Mr. Vertentes-Arruda a further opportunity to consult counsel?
246Mr. Dos Santos submits that various comments made by Mr. Vertentes-Arruda during the interview provided a basis to question whether he understood his rights. Given this, when he asked to speak with a lawyer again, the police were obligated to facilitate that request. Instead, they denied him the opportunity to consult a lawyer a second time and, by doing so, violated his section 10(b) Charter right.
247In contrast, for the Crown, Mr. D'Iorio submits that nothing Mr. Vertentes-Arruda said while speaking with Constable Cota provided any basis to question that he understood his rights. That he did is further evidenced by Mr. Vertentes-Arruda asserting his right to silence on several occasions. As a result, Mr. D'Iorio argues that the police did not violate section 10(b) by failing to afford Mr. Vertentes-Arruda a second opportunity to speak with counsel.
Governing principles
248In Sinclair, the Supreme Court of Canada held that section 10(b) of the Charter usually only requires a single consultation with a lawyer: Sinclair, at paras. 43-44. That is normally sufficient, it explained, to provide the detainee or arrestee with "the information he needs to make a meaningful choice as to whether to cooperate with the investigation or decline to do so:" Sinclair, at para. 47.
249Nevertheless, the Supreme Court in Sinclair interpreted section 10(b) as requiring an opportunity for further consultation where there is a significant change in circumstances such that the initial advice received may no longer be adequate to fulfill the purpose of s. 10(b) of providing the accused with legal advice relevant to the choice of whether to cooperate with the police investigation or not: see Sinclair, at paras. 48, 65.
250Sinclair identified three non-exhaustive categories of exceptional circumstances where an opportunity for further consultation is required, which include: (1) the police invite the individual to take part in non-routine procedures that the lawyer who initially provided them with advice would unlikely have contemplated; (2) the investigation takes a new and more serious turn as events unfold, such that the initial legal advice given may no longer be adequate; or (3) there is reason to question the detainee's understanding of his section 10(b) rights or where police undermine the advice provided by counsel: see Sinclair, at paras. 49-52.
251To trigger the right to a further consultation with counsel, the change in circumstances must be objectively observable: see Sinclair, at para. 55. It is not enough, Sinclair explained, "for the accused to assert, after the fact, that he was confused or needed help, absent objective indicators that renewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so.": at para. 55.
252In LaFrance, the Supreme Court reaffirmed its decision in Sinclair and the three non-exhaustive categories it identified where a change in circumstances would trigger an obligation on the police to facilitate further consultation with counsel: see R. v. Lafrance, 2022 SCC 32, 416 C.C.C. (3d) 183, at para. 72. In doing so, it elaborated on the third category, situations where there is reason to question whether the detained or arrested person understood their section 10(b) rights. For the majority in LaFrance, Brown J. wrote, at para. 75:
Bearing in mind that the third Sinclair category was "broadly" stated by this Court by reference to "circumstances" indicating that "the detainee may not have understood the initial s. 10(b) advice", two points merit emphasizing (Sinclair, at para. 52). First, the inquiry is into circumstances, stated broadly. This connotes an examination not merely of whether the detainee consulted legal counsel, but of the entire context in which the police‐detainee interaction occurred (as in A.R.M.), including the circumstances of the detainee (as in Laquette and Hunt). Secondly, and therefore, an inquiry strictly into whether a detainee understood that he or she could remain silent is not sufficient. The issue, after all, is not merely whether the detainee was advised; the third category presumes that to have occurred. Section 10(b) requires much more than that (a point repeatedly stressed in Sinclair: see paras. 2, 24‐26, 28‐29, 32, 47‐48, 53, 57 and 65). Rather, it is that the detainee may not have understood the legal advice he or she received including, as the Court of Appeal correctly noted, whether and how to exercise the right to silence, which itself includes "the benefits and drawbacks of cooperating" and "strategies to resist cooperation" where that is the detainee's choice.
[Emphasis in original]
253Regarding the "circumstances of the detainee," the majority in LaFrance directed that the police and reviewing courts must be mindful of the power imbalance between the person under detention or arrest and the police. That includes the individual's particular vulnerabilities, for example, their gender, youth, age, race, mental health, language comprehension, cognitive capacity, or any other considerations that, when combined with developments as the interrogation unfolded, "will have rendered the detainee's initial advice inadequate, impairing his or her ability to make an informed choice about whether to cooperate with the police:" LaFrance, at para. 79. Where that is the case, further consultation with counsel will be necessary "to even the playing field:" at para. 79.
Analysis
254At one point during the interview, Mr. Vertentes-Arruda remarked that he needed "to speak to the union regarding my rights." When viewed in isolation, that comment arguably provided an objective basis to question whether Mr. Vertentes-Arruda understood his rights based on his conversation with duty counsel.
255However, understood in context, it is apparent that in making that comment, Mr. Vertentes-Arruda was not referring to his rights vis-a-vis the police during the interview or expressing a lack of understanding concerning the advice he received from duty counsel. The relevant exchange in context was as follows:
Constable Cota: The government pays for it [referring to duty counsel].
Mr. Vertentes-Arruda: The ... Ah, free...
Constable Cota: A lawyer for free. Then, if you wish to get another lawyer, you can get another lawyer...
Mr. Vertentes-Arruda: I had one from the union. I work for 183. I work for this company, that company has a union.
Constable Cota: Okay. They provide a ...
Mr. Vertentes-Arruda: Yes, I have the right to a lawyer.
Constable Cota: Okay. You have the right to one, but you don't have one.
Mr. Vertentes-Arruda: No, I don't have one. That's why I need to speak with the union regarding my rights. Do you understand?
[Emphasis added]
256It is readily apparent that during this exchange, Mr. Vertentes-Arruda is referring to speaking to his union concerning his entitlement to a lawyer because of his union membership. Those are the "rights" he and Constable Cota are referring to during this exchange.
257Unlike most cases, where the adequacy of the advice received from counsel is essentially presumed, here, because of the waiver of solicitor-and-client privilege and Mr. Murphy's testimony at the hearing, there is direct and credible evidence that Mr. Vertentes-Arruda received comprehensive legal advice including concerning his right to silence and how to exercise it.
258Further, based on Mr. Vertentes-Arruda's evidence during the hearing, it is apparent that he understood the legal advice he received and was never in doubt concerning the options available to him during the interview.
259That was the case despite his vulnerabilities at the time, including being fatigued, the lingering effects of the alcohol and cocaine he consumed and his limited English. Throughout the interview, Mr. Vertentes-Arruda understood his right to remain silent and how to exercise it, something he did on more than a handful of occasions. Mr. Vertentes-Arruda did not say anything during the interview that should have given Constable Cota reason to doubt that he understood the advice provided to him by duty counsel.
260Nothing about the circumstances entitled Mr. Vertentes-Arruda to a further opportunity to consult counsel. Mr. Vertentes-Arruda has failed to establish that the police breached his section 10(b) Charter right by refusing to let him speak to a lawyer a second time.
CONCLUSION
261Mr. Vertentes-Arruda’s statement to Constable Cota was voluntary and obtained in compliance with his Charter rights. Accordingly, the statement is admissible.
Signed: “J. Stribopoulos J.”
Released: November 30, 2023
COURT FILE NO.: CRIM J(P) 2022/215
DATE: 20231130
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and –
HELDER VERTENTES-ARRUDA
REASONS FOR DECISION
Justice J. Stribopoulos
Released: November 30, 2023
Footnotes
- Constable Beduz misspelled “Michael” as “Micheal” in his notes and could not recall if he did so when conducting the Google search.
- Given that Mr. Vertentes-Arruda did not invoke his right to counsel of choice, there is no legal significance in this case to the sufficiency of Constable Beduz's efforts to track down a fictional lawyer. That said, no one should read these reasons as finding that, had Mr. Vertentes-Arruda done so, Constable Beduz met the "reasonable steps" standard recognized by the case law. For example, when he could not find the lawyer through a Google search, it would have been reasonable at least to search the Law Society of Ontario's Lawyer Directory. Further, it was unreasonable for Constable Beduz to conclude that a real estate lawyer from Rhode Island named "Michael C. Lima" was the same "lawyer" Mr. Vertentes-Arruda identified.
