Decision on Pretrial Applications

Introduction

The defendant, Jeremy Folk, is charged with manslaughter with respect to the death of Robert Davies (“Davies”). The Crown submits that, on June 13, 2020, the defendant sold a substance, purportedly cocaine, to Matt Grout (“Grout”), and that the substance was ingested by Grout, Davies, and Sheldon Gittens. Davies died as a result. It is alleged that the substance that was sold by the defendant to Grout was in fact a mixture of cocaine and fentanyl.

The Crown brings this pretrial application for a ruling that the videorecorded statement given by the defendant to Detective Allan of the Brantford Police Service (“BPS”) on September 15, 2020, was voluntary, and that the statement is therefore admissible as evidence at the trial.

The defendant takes the position, supported by amicus, that the statement is not admissible. The defendant submits that the statement was not voluntary because it was given under oppressive circumstances, Detective Allan made threats or offered inducements to the defendant, and the statement was not the product of the defendant’s operating mind.

The defendant also submits that the statement is not admissible because there are portions of the statement that are inaudible or unintelligible such that the court will be unable to ascertain the meaning of what was said. The Crown’s position is that most of the statement is audible and that the court will be able to understand the context of the words used.

In addition, the defendant brings an application under s.10(b) of the Canadian Charter of Rights and Freedoms (the “Charter”) in which the defendant alleges that the police officers failed to provide the defendant with a reasonable opportunity to speak with counsel of choice before he provided the videorecorded statement. Therefore, the defendant submits that if the statement is otherwise admissible, it should be excluded from evidence pursuant to s.10(b) and s.24(2) of the Charter.

This pretrial hearing proceeded as a blended hearing of the Crown’s voluntariness application and the defendant’s Charter application.

Findings of Fact

Six police officers testified at the hearing with respect to the interactions between the police officers and the defendant from the time the defendant was arrested on September 14, 2020, until the time he gave the statement to Detective Allan on September 15, 2020. I have also had an opportunity to view and hear the videorecorded statement.

I make the following findings.

The defendant was arrested at 4:48 p.m. on September 14, 2020, by Officer Gudgeon after the defendant was observed walking in the area of Grand River Avenue in Brantford, Ontario. Officer Gudgeon informed the defendant that he was under arrest for manslaughter, and he handcuffed the defendant. He also gave the defendant a “soft caution” by which he briefly informed the defendant of his right to counsel and cautioned him against saying anything.

The defendant was placed in the back of a marked police cruiser operated by Officer Milmine. At 4:54 p.m., Officer Milmine formally informed the defendant of his right to counsel and cautioned him about making a statement. I accept Officer Milmine’s testimony that he read the right to counsel and caution from a note that he keeps in his duty book. In particular, I find that Officer Milmine informed the defendant that he had a right to retain and instruct counsel without delay, that he could contact duty counsel through Legal Aid if he wished, and that he would be given a phone number through which he could contact duty counsel if he so chose. I also find that Officer Milmine informed the defendant that he was not required to say anything, but if he did say anything it could be used as evidence against him.

I find that, in response, the defendant told Officer Milmine that he understood his rights and the caution, and that he wished to speak with his lawyer, Dale Henderson.

The defendant was transported by Officer Milmine to the Brantford police station where he arrived before Staff Sergeant Spencer in the booking area at 5:13 p.m. Sergeant Spencer booked the defendant into the system by asking some questions and entering information into the BPS electronic custody module. I accept Sergeant Spencer’s evidence that he confirmed with the defendant that he had been informed of his right to counsel and cautioned. I also accept Sergeant Spencer’s evidence that he reviewed the defendant’s rights with him by referring to a statement of rights that was printed on a board behind his desk.

After Sergeant Spencer reviewed the defendant’s right to counsel with him at the booking area of the police station, the defendant repeated that he would like to speak with his lawyer, Dale Henderson.

I find that a phone call was made by one of the police officers to Dale Henderson’s office at that time, although there is mixed evidence as to who made the call. Officer Santamaria was working in close proximity to Sergeant Spencer in the booking area that evening. Sergeant Spencer testified that shortly after the defendant was booked into the system, Officer Santamaria placed a call to Dale Henderson’s office but could only connect to voicemail. Officer Santamaria does not recall making that phone call.

I find that the identity of the officer who made that initial phone call to Dale Henderson’s office is not significant. I find that either Sergeant Spencer placed that call himself, or Officer Santamaria placed that call and informed Sergeant Spencer that he could only connect to voicemail. In either case, Sergeant Spencer became aware that the police could only connect to Dale Henderson’s voicemail at that time.

Thereafter, I find that Sergeant Spencer informed the defendant that the call to Dale Henderson had gone to voicemail, and that he could leave a message for Dale Henderson, or he could speak to another lawyer of his choice, or he could speak to duty counsel. I find that the defendant responded that he would like to speak to duty counsel.

Officer Santamaria then made the appropriate arrangements, and the defendant was able to have a private telephone conversation with duty counsel at 5:57 p.m. Sergeant Spencer and Officer Santamaria both confirmed that, immediately after the defendant spoke to duty counsel, he told the police officers that he still wished to speak with Dale Henderson.

At 6:09 p.m., Officer Santamaria called Dale Henderson’s office and left a message on Dale Henderson’s voicemail to the effect that the defendant was in custody and wished to speak to him. I accept Officer Santamaria’s testimony that Dale Henderson’s voicemail message indicated that if the call was after hours, the caller should contact duty counsel and that Dale Henderson would return the call the next morning. Officer Santamaria informed the defendant that he had left the voicemail message for Dale Henderson.

Dale Henderson is a lawyer who was familiar to the officers. Both Officer Santamaria and Sergeant Spencer believed that Dale Henderson would call the police station to speak to the defendant the next morning. Officer Santamaria believed, based on experience, that Dale Henderson or a member of his office would call the police station between 8:00 a.m. and 9:00 a.m.

The defendant was placed in a cell at the Brantford police station shortly after he was booked into the area by Sergeant Spencer. He remained in that cell throughout the evening except for the purpose of using the telephone. He was also provided with food and drink twice in the evening, and again at approximately 7:30 a.m. the next morning.

Based on the BPS custody module and Officer Santamaria’s testimony, I find that at some time between 7:01 p.m. and 7:20 p.m. Sergeant Spencer had a conversation with the defendant in which the defendant commented about wanting to contact another lawyer, Jaime Stephenson. However, at the end of their conversation the defendant told Sergeant Spencer that he had decided to wait for Dale Henderson to call in the morning.

I find that the only other event of significance that evening occurred at 7:51 p.m. when the defendant was permitted to speak, by telephone, with his mother.

Both Sergeant Spencer and Officer Santamaria ended their shifts overnight and left the police station. I accept Officer Santamaria’s testimony that he would have left information for the officer who took over for him that they were waiting for a call from Dale Henderson’s office, and that the information would have been plainly visible in the BPS custody module.

Detective Allan was the officer in charge of this case, but he was not on duty at the time of the defendant’s arrest. When Detective Allan arrived at the police station to commence his shift at 6:00 a.m. on September 15, 2020, he was informed that the subject of his investigation, the defendant, had been arrested and was in custody. Detective Allan did not review the BPS custody module or the videorecording of the booking area. He only reviewed the report of Officer Milmine from which he learned that the defendant had been arrested, that he had been informed of his right to counsel and cautioned, that he had understood his rights and caution, and that he had spoken to duty counsel.

Detective Allan testified that he was not aware that the defendant was awaiting a return phone call from his counsel of choice, Dale Henderson. However, near the start of the videorecorded statement, Detective Allan told the defendant that he knew that someone had attempted to reach his lawyer but had been unsuccessful. Detective Allan was never asked how he became aware of this information, whether he knew the name of the lawyer, or if he knew that a message had been left for the lawyer.

At approximately 8:00 a.m., Detective Allan told the defendant that he would like to take a statement from him. The defendant was then moved into an interview room where Detective Allan conducted the interview.

The Videorecorded Statement

Detective Allan’s interview of the defendant was very short. It was 18 minutes long, commencing at 8:20 a.m. and ending at 8:38 a.m.

The first words spoken by the defendant at the start of the recorded interview were, “Freezing in here.” The defendant was wearing jeans and a t-shirt, but he wrapped a blanket around himself as he entered the interview room. He wore this blanket throughout the interview and occasionally pulled the blanket up to his face. There were times at which the defendant appeared to be shivering. Detective Allan was dressed in a shirt and tie, and he appeared to be quite comfortable.

Most of the statement is audible and intelligible, but there are some parts of the statement that require an effort to understand, and there are other parts in which the words or phrases are simply not audible. The difficulty is not with the recording equipment as Detective Allan’s statements are almost entirely audible. The difficulty is primarily because of the defendant’s tendency to mumble and occasionally pull the blanket up around his mouth and face when he talked. In the 24-page transcript of the statement, there are approximately two words or phrases per page that are not completely intelligible.

Detective Allan commenced the interview by asking the defendant if he knew what the charge was, and he responded, “Yeah, manslaughter.”

Detective Allan did not reinstruct the defendant as to his right to counsel or reinform the defendant that he was not required to say anything, but he asked if the defendant had been given his right to counsel and cautioned when he was arrested. In response, the defendant said, “Yeah,” and then he added, “I haven’t really talked to a lawyer yet though.” Detective Allan then asked if he had talked to a lawyer and the defendant responded, “I talked to somebody that’s gonna try to get me a lawyer today, get a hold of Dale Henderson.”

Detective Allan then confirmed that the defendant had talked to duty counsel. At that point, Detective Allan said that he knew that they had tried to reach the defendant’s lawyer but were not able to reach him. The defendant then agreed with Detective Allan’s suggestion that he had “talked to somebody” and “they gave you advice.” I assume this was a reference to the defendant’s conversation with duty counsel. Then, Detective Allan told the defendant that he was hoping that they could have a conversation, and he proceeded to ask some questions.

The conversation between Detective Allan and the defendant was polite, respectful, and courteous. Detective Allan did not use any intimidating or aggressive language toward the defendant. But for the fact that the defendant was wrapped in a blanket, the defendant appeared to be comfortable. Moreover, the defendant appeared to understand what Detective Allan was saying, and he responded appropriately.

On several occasions throughout the interview, the defendant made statements such as “I don’t wanna say nothing” and “Lawyer advised me not to speak about it, that’s all I’m saying” and “I’m not saying nothing until I speak to a lawyer.” There were at least nine times during the course of the interview that the defendant made these types of comments.

However, I find that, with very little prompting from Detective Allan, the defendant continued to carry on a conversation with Detective Allan. For example, in an early part of the interview at approximately 8:25 a.m., the defendant said, “I don’t wanna say nothing.” Detective Allan then said “Well” and the defendant continued with a lengthy statement that included “I get where you’re coming from… you guys know a lot… you can’t get people off the streets…. you come after people like me.”

I agree that at times during the interview Detective Allan encouraged the defendant to continue to speak with him. Detective Allan made comments such as “Sometimes talking is a good thing” and “I think it would be helpful for you and I to have a conversation about it, a frank conversation about it.”

Between 8:35 a.m. and 8:37 a.m., the defendant repeated several times that he had been advised not to speak to police and that he was not going to say anything until he spoke with his lawyer. Detective Allan then made another brief attempt to encourage him to continue the conversation. At 8:38 a.m., the defendant asked if he could go back to his cell. Detective Allan then terminated the interview and took the defendant back to his cell.

Analysis

Audibility of the Statement

Regarding the audibility issue, it is conceded that much of the statement is audible and intelligible, but there are portions of the statement that are simply inaudible.

The defendant takes the position that the entire statement should not be admitted into evidence because the missing parts of the statement make it difficult for the court to understand the meaning of the audible parts. Therefore, the defendant submits that the audible parts of the statement do not meet the threshold for relevance required for the admissibility of any evidence.

The defendant relies on R. v. Ferris, in which the Supreme Court of Canada held that an overheard statement made by an accused in that case was not admissible as its meaning was speculative and its probative value was tenuous.

Subsequently, in R. v. Schneider, 2022 SCC 34, the Supreme Court of Canada considered the admissibility of hearsay evidence from the accused’s brother who overheard part of the accused’s telephone conversation. The brother could not recall the exact words used by the accused and he did not hear the entire conversation. The majority in Schneider accepted that Ferris was good law, but that it must be carefully read. The majority wrote, at para. 72, that “[e]xclusion of a partial conversation is . . . not automatic and the analysis is above all a contextual one.”

The majority in Schneider wrote, at para. 63, that to overcome the low threshold for relevance, there must be sufficient context for the trier of fact to give meaning to the words used. At the admissibility stage, a court should also weigh the probative value against the prejudicial effect. Issues such as the ultimate reliability and believability of a statement are for the trier of fact to consider in weighing the evidence.

Recently, in R. v. Merritt, 2023 ONCA 3, a case dealing with a partially intelligible conversation intercepted through a room probe, the Court of Appeal for Ontario confirmed and applied the decision in Schneider. At para. 73, Paciocco J. wrote, “There can be no question then that Schneider permits the admission of an incomplete statement where there is sufficient context to enable the jury to give the overheard words meaning.”

At para. 74, Paciocco J. confirmed that where a witness can provide testimony about what a statement communicated or there is context for assessing the meaning of the words spoken, “the evidence is admissible, with the weight of the statement being a matter for the trier of fact to determine.”

In the present case, Detective Allan’s questions are clearly audible, and most of the words spoken by the defendant are audible and intelligible. Moreover, the interview was short and the subject matter that was discussed was not particularly complex. In my view, the relevant portions of the interview relate to the defendant’s knowledge of cocaine and fentanyl, and the defendant’s involvement in using and/or selling illegal substances. Thus, the general context of the entire statement is easily ascertainable.

There may be some gaps in the audible parts of the statement that cause the court to question the context of certain specific words used by the defendant, but in my view those gaps are very few. At trial, the court will have the opportunity to assess and weigh any particular parts of the statement made by the defendant that may not have a clear meaning. The problem associated with the gaps in the statement goes to weight, not admissibility.

The probative value of the statement here is modest, but the only possible prejudicial effect is the possibility that some of the words may be taken out of context. I find that the potential prejudicial effect does not outweigh the probative value of the statement as the meaning of the words can be carefully weighed at trial.

For these reasons, I find that the defendant’s videorecorded statement passes the required relevance threshold for admissibility. The inaudible or unintelligible portions of the statement do not constitute a reason to exclude it from evidence.

Voluntariness

The common law provides that any statement made by an accused person to a person in authority is inadmissible at the instance of the Crown, unless the Crown proves beyond reasonable doubt that the statement was voluntary: see R. v. Oickle, 2000 SCC 38, at para. 68; R. v. Tessier, 2022 SCC 35, at para. 68; and R. v. Ordonio, 2025 ONCA 135, at para. 25.

There are four factors that are commonly considered when the court determines whether a statement was voluntary, namely whether the statement was made as a result of threats or inducements, whether the statement was made in oppressive circumstances, whether the statement was the product of the defendant’s operating mind, and whether the statement was obtained through police trickery. These four factors were largely identified and consolidated by the Supreme Court of Canada in Oickle, at paras. 47-71.

The abovementioned four factors are not to be considered as a checklist. In Tessier, at para. 68, the court wrote:

The inquiry is to be contextual and fact-specific, requiring a trial judge to weigh the relevant factors of the particular case. It involves consideration of “the making of threats or promises, oppression, the operating mind doctrine and police trickery”. These factors are not a checklist: ultimately, 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. [Citations omitted.]

See also Oickle, at para. 71.

This analytical approach was discussed at para. 47 of Oickle, where the court stated that there were no hard and fast rules; the trial judge should consider all relevant factors when reviewing the defendant’s statement. Further, in Ordonio, at para. 28, the court wrote, “The jurisprudence teaches that the rule should not be applied mechanically to the facts of a particular case. Instead, a judge must examine and evaluate all the circumstances surrounding the making of the statement. The approach is contextual.”

The critical issue in the voluntariness analysis was summarized in R. v. Singh, 2007 SCC 48, at para. 36, where the court wrote, “[T]he focus is on the conduct of the police and its effect on the suspect’s ability to exercise his or her free will.”

In the present case, the defendant and amicus submit that there are several circumstances that collectively raise a reasonable doubt as to whether the videorecorded statement was voluntary. In terms of the four factors listed above, the defendant relies upon oppressive circumstances, the operating mind doctrine, and alleged threats and inducements. The defendant conceded that there was no police trickery in this case.

Regarding oppressive circumstances, the defendant submits that he was cold throughout the interview as evidenced by the fact that he was wrapped in a blanket and shivering. I accept that the defendant subjectively felt cold. However, the temperature in the interview room certainly did not appear to be oppressive. Detective Allan conceded that although the temperature in the police station was regulated, it tends to be a little cooler in the cell area. I accept Detective Allan’s evidence that the temperature in the room was cool but comfortable.

Amicus also submitted that it was possible that the defendant had not slept that evening. In my view, there is no air of reality to this submission. The evidence established that the defendant was placed in a cell in the evening and was in that cell for most of the time between 7:00 p.m. and 8:00 a.m. In the videorecording, there were no outward signs that the defendant suffered from sleep deprivation.

An important consideration in favour of the Crown is the fact that the interview was very short. Thus, any adverse conditions that may have been present were only endured by the defendant for a very short period of time. Moreover, I take into account that the defendant was not subjected to any intimidating or aggressive police tactics. He was treated with respect and courtesy by Detective Allan. Still further, after 18 minutes the defendant politely asked to be returned to his cell, and Detective Allan immediately complied with his request.

The court must consider if the conditions under which a statement was made were so oppressive that there is a reasonable doubt as to whether the accused person made a stress-induced confession to escape the conditions, or whether the will of the accused person had been overborne such that the accused made an induced confession: see Oickle, at para. 58. In my view, it would be a very rare case in which a court would find that a short 18-minute interview that was polite and respectful constituted oppressive conditions. I find that there was no significant oppression in this case.

Under the operating mind factor, the defendant and amicus submit that the interview was conducted before the defendant was fully informed of the charges against him. It is conceded that he was informed that he was charged with manslaughter at the time of his arrest, and this was confirmed at the beginning of the interview. The defendant’s complaint is that he had not been informed of the details of what he had allegedly done. Considering that the charge related to something that had happened three months earlier, the defendant submits that he should have been more fully informed.

I accept that the police officers had not fully reviewed all of the details of the charge with the defendant. This is apparent from the videorecording. Early in the interview, the defendant asked Detective Allan, “Did something happen?” Detective Allan replied, “Yeah, you sold cocaine and somebody died of a fentanyl overdose.” Later, the defendant asked, “Who was it that died?”

In my view, having informed the defendant that he was under arrest for a manslaughter offence that occurred on a specific date, it was not mandatory for the police to provide the defendant with all of the particulars of his alleged crime before he was interviewed. In fact, one of the purposes of interviewing an accused person is to determine the extent of the accused’s knowledge of the offence. Thus, it would be counterintuitive to compel a police officer in this case to give the defendant all of the details of the offence before he questioned the defendant about the details.

Furthermore, the defendant in this case had a clear understanding of the reason for the police interview. Having been charged with manslaughter, he was aware of the jeopardy he faced. He had the cognitive ability to understand the charge against him, and he understood the questions asked of him. On several occasions, the defendant indicated that he knew why the police were questioning him. At one point he said, “I know what you’re trying to do. It’s your job.” He was also aware that his lawyer had told him not to speak and that he did not have to speak to the police officer. He also observed that “It…can be turned around and used against you in a court of law.”

There is also a legitimate issue as to whether the defendant’s questions to Detective Allan about the details of the offence were because he did not understand the charge against him or because he was attempting to find out what the police knew.

Therefore, in summary, I find that the defendant was informed of the charge against him in sufficient detail to understand the jeopardy he faced, and the questions put to him. If the defendant needed details to answer a question, he was able to ask, and did ask, Detective Allan for the details. This all indicates that the statements made by the defendant were a product of his operating mind.

Regarding threats or inducements, the defendant’s position is related to the fact that he said that he did not want to talk to a police officer until he had talked to his lawyer. This occurred several times. However, despite those comments, the defendant did in fact talk to Detective Allan.

It is the position of the defendant and amicus that comments made by Detective Allan such as, “Sometimes talking is a good thing,” “It would be helpful for you and I to have a conversation,” and “If… I’ve made a mistake then this is a perfect opportunity to let me know that that’s the case” amount to threats or inducements. I do not agree with the position of the defendant on this point.

Courts have often considered circumstances in which an accused has stated to a police officer that they did not wish to speak with him or her, but the police officer continued to press the accused to talk. On occasion, police officers have encouraged an accused to speak by using words such as, “It would be better for you to tell us everything.” Those comments on their own do not constitute a threat or inducement. Statements made by a defendant in response to such encouragement from police officers are to be excluded only where the circumstances reveal an implicit threat or promise: see Oickle, at para. 55.

It is important to recognize that few suspects will spontaneously confess to a crime. In the vast majority of cases, police will have to convince a suspect that it is in his or her best interest to confess. This is improper only when the inducements are strong enough to raise a reasonable doubt about whether the will of the defendant has been overborne: see Oickle, at para. 57.

In determining whether a police officer’s attempts to encourage an accused person to speak constitute a threat or promise, the court in Oickle stated, at para. 57, that the court should consider whether the statements by the police officer amount to a quid pro quo offer by the police.

In my view, the comments made by Detective Allan to the defendant were general comments designed to motivate or encourage the defendant to continue to speak to him about the alleged offence. There was no quid pro quo offer or threat. There was no mention that the defendant would suffer a certain negative consequence if he refused to speak, or that he would receive a particular benefit if he gave a statement. Detective Allan’s approach of encouraging or motivating the defendant was acceptable.

In summary, I find that there were no oppressive circumstances, that the defendant was sufficiently informed of the charges, that there were no threats made or inducements offered, that the defendant was provided with appropriate food and drink, that the defendant was treated with respect and courtesy, and that the defendant fully understood and participated in the interview process.

Accordingly, I find that the Crown has proved beyond reasonable doubt that the videorecorded statement was voluntary.

Section 10(b) of the Charter

Section 10(b) of the Charter reads as follows:

Everyone has the right on arrest or detention…

(b) to retain and instruct counsel without delay and to be informed of that right.

If a person is arrested or detained by police, s.10(b) imposes duties on police officers that are both informational and implementational. Specifically, the police officers must inform the detainee of his right to retain and instruct counsel without delay and provide the detainee with a reasonable opportunity to do so.

In R. v. Willier, 2010 SCC 37, at para. 29, the court enumerated these duties as follows:

Section 10(b) requires the police

(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).

In many cases, a detainee requests to speak to a particular lawyer, but counsel of choice is not readily available. In that respect, the court in Willier wrote, at para. 35:

Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s.10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation.

There are certain basic principles that arise out of the case law:

• The onus is on the defendant to prove on a balance of probabilities that there has been a breach of the defendant’s Charter rights and that the evidence should be excluded under s.24(2): see R. v. Collins.
• Upon arrest or detention, a detainee must be informed by police officers of his right to retain and instruct counsel without delay. The police officer must also inform the detainee that a Legal Aid duty counsel is available to speak to him if he wishes: see Willier, at para. 29; R. v. McCrimmon, 2010 SCC 36, at para. 18; and R. v. Brydges, at paras. 24-26.
• The s.10(b) right includes not only the right to retain and instruct counsel, but the right to retain and instruct counsel of choice: see R. v. Speid; R. v. Ross, at para. 13.
• If the detainee, having been informed of his rights, indicates to the police that he wishes to speak with a lawyer, the police have an obligation to take reasonable steps to put the detainee in contact with his counsel of choice, and provide the detainee with a reasonable opportunity to exercise his right to speak to counsel of choice: see Willier, at para. 29; R. v. Manninen, at paras. 21-23; and Ross, at paras. 11-15.
• There is an obligation on the police to refrain from questioning or otherwise attempting to elicit evidence from a detainee until he has had a reasonable opportunity to speak with counsel: see Willier, at paras. 29-30; Manninen, at para. 23; McCrimmon, at para. 17; and Ross, at para. 17.
• The obligations on the police to facilitate contact with counsel and to refrain from eliciting evidence from the detainee are contingent upon a detainee’s reasonable diligence in exercising his right to counsel: see Willier, at para. 33; Ross, at para. 13, and R. v. Tremblay, at para. 9.
• If a detainee’s counsel of choice is not readily available, the detainee has the right to wait a reasonable amount of time for his lawyer of choice to respond. It is only if the counsel of choice cannot be available within a reasonable time that the detainee will be expected to contact another lawyer: see Willier, at para. 29; Ross, at para. 13.
• A detainee may choose to forego his right to wait for an opportunity to speak with counsel of choice in favour of exercising his rights by speaking with duty counsel: see Willier, at para. 42; McCrimmon, at para. 19; and R. v. Jhite, 2021 ONSC 3036, at para. 42.
• If a detainee attempts to contact counsel of choice who is not readily available, and subsequently chooses to speak with duty counsel, the detainee does not implicitly waive his right to speak to counsel of choice. The onus is on the Crown to show that the detainee has waived his right to counsel of choice: see R. v. Singh, 2020 ONSC 1342, at paras. 19-20; R. v. Vernon, 2015 ONSC 3943, at para. 32.
• A police officer may still be obliged to provide the detainee with a reasonable opportunity to contact counsel of choice after the detainee has spoken to duty counsel. The availability of duty counsel cannot be used to trump a detainee’s right to counsel of choice: see R. v. Kumarasamy, [2002] O.J. No. 303, at para. 21.
• The police are not required to monitor the quality of the legal advice provided to a detainee. If a detainee opts to speak to duty counsel when his own lawyer is not available and the detainee does not indicate that the advice received was inadequate, the police may assume that the detainee is satisfied with his exercise of right to counsel and are entitled to commence an investigative interview: see Willier, at para. 42; McCrimmon, at para. 19.

In my opinion, the apparent contradiction in some of the above-mentioned decisions is explained by noting that the onus is on the Crown to show that the detainee has waived his right to speak to a specific counsel by speaking with duty counsel, but the police may draw certain inferences based on the conduct of the detainee.

Whether a detainee has fully exercised his right to counsel by speaking to duty counsel is a question of fact to be determined in each case. That is, the court must assess the circumstances in each case to determine whether the detainee, acting diligently and reasonably, was satisfied with the legal advice provided by duty counsel, such that he has waived his right to wait a reasonable time to speak to counsel of choice.

If the detainee’s conversation with duty counsel satisfied the detainee’s right to counsel, the police may proceed to interview the detainee. However, if the detainee maintained his right to speak to counsel of choice after speaking with duty counsel, the police are required to wait a reasonable length of time to provide the detainee with a reasonable opportunity to speak with counsel of choice. What is a reasonable length of time will depend upon the circumstances of each case.

In the present case, the police officers of the BPS followed the appropriate protocol up to and including the defendant’s telephone conversation with duty counsel at 5:57 p.m. They fully informed the defendant of his rights, the officers placed a call to counsel of choice, Dale Henderson, who was not readily available, they so informed the defendant, they offered the defendant the opportunity to attempt to contact another lawyer or to speak to duty counsel, and they arranged for the defendant to speak with duty counsel when he indicated that he wished to do so.

I find that the defendant in this case did not waive his right to speak to counsel of choice by choosing to speak to duty counsel. The circumstances of this case are unlike those in Willier where the detainee chose to speak to duty counsel instead of his own lawyer who was not available, and thereafter expressed satisfaction with the advice provided. In the present case, although he did not express dissatisfaction with advice provided by duty counsel, the defendant made it clear that he still wished to speak with his counsel of choice.

I find that both Sergeant Spencer and Officer Santamaria were aware that the defendant did not choose to accept a conversation with duty counsel as an alternative to speaking with his counsel of choice. Shortly after the defendant’s conversation with duty counsel, he informed the officers that he still wished to speak with Dale Henderson. Officer Santamaria then properly made another attempt to arrange for the defendant to contact his counsel of choice by calling Dale Henderson’s office and leaving a message on his voicemail at 6:09 p.m. He then properly informed the defendant that he had done so.

Thereafter, I find that the police officers and the defendant reasonably believed that Dale Henderson would contact the police station to speak with the defendant the next morning between 8:00 a.m. and 9:00 a.m.

In my view, as of 6:09 p.m., the defendant had not waived his right to speak to counsel of choice, and therefore the police continued to have a duty to wait a reasonable length of time to provide the defendant with an opportunity to speak with counsel of choice prior to interviewing the defendant. Moreover, the officers, by their actions, led the defendant to believe that he would be able to speak to his lawyer the next morning.

The question then is whether, in these circumstances, it was reasonable to require the police to wait until the defendant had an opportunity to speak with Dale Henderson the next morning before a police officer interviewed him.

I find that it was reasonable to expect the police officers to wait. The reasonableness of waiting until the next morning to interview the defendant is evidenced by the fact that the police officers did wait until the next morning to conduct an interview. After Officer Santamaria left a message for Dale Henderson at 6:09 p.m., the police officers and the defendant believed that Dale Henderson would call to speak to the defendant the next morning. The BPS police officers then collectively waited 14 hours, until approximately 8:00 a.m., before Detective Allan decided to interview the defendant.

At the time of Detective Allan’s interview of the defendant, the situation had not changed. The officers who had been involved with the defendant on the previous evening believed that Dale Henderson would be calling to speak to the defendant that morning. I accept that Detective Allan was not aware of this fact, but other BPS police officers were aware of the circumstances, and the attempts to contact counsel on the previous evening had been recorded in the BPS custody module. The information was readily available to Detective Allan had he chosen to look for it.

Therefore, if in the collective view of the BPS police officers it was reasonable to wait 14 hours to interview the defendant, surely it was also reasonable to wait another one or two hours so that the defendant could exercise his right to speak with counsel of choice.

In coming to that conclusion, I have also taken into account the fact that there was no urgency to interview the defendant. Again, this is evidenced by the fact that the officers waited 14 hours before they interviewed him. This was not a situation in which it was important for the officers to interview the defendant before a certain time or date. I find that this is a very different situation than the cases in which a defendant wished to speak with counsel of choice before providing a breath sample.

Still further, in the present case I find that at approximately 7:20 p.m. the defendant was considering contacting another lawyer, Jaime Stevenson, but decided not to do so because he believed that Dale Henderson would be contacting him in the morning. This confirms that the defendant had been led to believe that the officers were prepared to wait for Dale Henderson to contact the defendant in the morning. The defendant relied on this belief in deciding not to contact an alternate lawyer that evening.

In these circumstances, I find that there was a breach of the defendant’s s.10(b) right as he was not provided with a reasonable opportunity in the circumstances to speak with Dale Henderson, his counsel of choice.

Should the Statement be Excluded under Section 24(2)?

Having found that there has been a breach of the defendant’s right under s.10(b) of the Charter, I must now assess the effect of admitting or excluding the statement on society’s confidence in the administration of justice pursuant to s.24(2).

The Supreme Court of Canada in R. v. Grant, 2009 SCC 32, at para. 71, set out three factors for consideration under s.24(2), namely:

1. the seriousness of the Charter-infringing state conduct;
2. the impact of the breach on the Charter-protected interests of the accused; and
3. society's interest in the adjudication of the case on its merits.

The seriousness of Charter-infringing conduct can be graded on a spectrum from trivial to blatant and flagrant. Good faith on the part of the police is one of the factors to be considered when assessing the seriousness of the breach.

In this case, I find that the conduct of the police was neither trivial nor egregious. For the most part, the police officers followed the appropriate protocol. Sergeant Spencer and Officer Santamaria dealt with the situation in the proper manner. The difficulty is that the circumstances were not communicated to Detective Allan.

I make no finding as to whether this was a systemic problem, or a problem caused by one or more of the officers. Miscommunication between officers that results in a breach of a detainee’s Charter rights amounts to negligence or recklessness on the part of the BPS. It is not acceptable.

Further, this is not a case in which I can find good faith on the part of the police officers. As stated in Grant, at para. 75, “[I]gnorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith.” In summary, I find that the seriousness of the Charter-infringing conduct falls in the modest range.

Regarding the impact of the breach on the Charter-protected interests of the accused, the right of a detainee to retain and instruct counsel of choice is a basic right enshrined in the Charter. It is trite to say that the right to counsel is an important right. Further, the right to counsel is a straightforward, simple right, the scope of which should have been known to the officers and the breach of which is difficult to excuse or understand.

From the moment of his arrest, the defendant made it crystal clear that he wished to exercise his right to counsel by speaking with Dale Henderson. He never wavered from his request to speak to Dale Henderson. Reasonable arrangements were made to allow the defendant to exercise his right to counsel of choice, but the BPS officers failed to abide by those arrangements. Further, the defendant relied on those arrangements in deciding to wait until morning to speak to counsel.

The net result is a clear and obvious breach that caused the defendant to provide evidence against himself in the form of a statement to police. Although the degree of intrusiveness of the breach is minimal, the statement flowed directly from the breach of s.10(b). I find that the impact of the breach on the Charter-protected interests of the accused was serious.

Regarding the third Grant factor, I acknowledge that society's interest in adjudication on the merits will almost always favour admission of the evidence. However, in this case, the inadmissibility of the evidence will not mean that the case against the defendant cannot be tried. This case will proceed to trial on other admissible evidence.

Further, in my view, members of the public would be justifiably concerned about the administration of justice if police officers were permitted to obtain self-incriminating evidence from an accused person as they did in this case. Society’s confidence in the justice system will be lessened if officers are permitted to take a person into custody, assist the person in arranging to speak to his lawyer the next morning between 8:00 a.m. and 9:00 a.m., and then, just after 8:00 a.m., compel the person to provide a statement before he has a chance to speak to his lawyer.

All three of the Grant factors tend to favour exclusion of the evidence. Accordingly, I hereby find that the statement given by the defendant to police on September 15, 2020, is not admissible at the trial.

Conclusion

For the above-mentioned reasons, I find that there was a breach of the defendant’s s.10(b) right as he was not provided with a reasonable opportunity in the circumstances to speak with his counsel of choice. I also find that the statement given by the defendant to police on September 15, 2020, should be excluded from the trial.

Date Released: May 22, 2025

J. R. Henderson