In the recent case of R v JWC, 2011 ONCA 550 the Court of Appeal considered "back channelling" in the context of the implementational component of section 10(b). The appellant was charged with fourteen sexual offences relating to eight different complainants. The assaults occurred while the appellant was a counsellor at group homes for persons with special needs. The Crown's case depended upon the statement of the appellant as the complainants were developmentally and largely unable to communicate [para 1].
At trial the appellant sought to exclude his confession alleging there had been a violation of his right to counsel under section 10(b) of the Charter. The trial judge dismissed the application, the appellant was convicted and he appealed.
On appeal the appellant challenged the ruling on the 10(b) motion. In doing so, the appellant also advanced a new aspect to the alleged violation.
The first part of the 10(b) argument - which was advanced at trial - related to whether the appellant had "a reasonable time to consider whether he should exercise his right to counsel", something he never did do [para 19]. The Court of Appeal, accepting the trial judge's rejection of this argument, noted that the trial judge took into account that the appellant was first read his rights when he was picked up by the police from the place he was residing - a psychiatric facility - and again read them at the station prior to interview [para 19]. The trial judge held that there was "twelve minutes or so" in this time frame and that this was sufficient time for the appellant - despite the fact he was "admittedly depressed" - to consider contacting counsel; this finding was held not to be unreasonable by the Court of Appeal.
The second part of the 10(b) argument - which was not advanced at trial - focused on duty to hold off and waiver. The argument was summarized by the court as follows: "...the appellant's equivocal response, 'I don't know', required the police to obtain a clear waiver from the appellant..the circumstances known to the police compel this result" [para 21]. The circumstances included the depression and that the appellant was residing at a psychiatric facility. This argument was premised on the following exchange that took place at the police station:
BASKEY: Um now I'm gonna read a couple of things to you. I've already read them to you once but I'm gonna go over them again.APPELLANT: OkayBASKEY: Alright. Ah it's my duty to inform you that you have the right to obtain and instruct [counsel] without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a Legal Aid Lawyer. 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 Legal Aid Duty [Counsel] Lawyer for free legal advice right now, do you understand?APPELLANT: Mm huhBASKEY: Ah do you wish to call a lawyer now?APPELLANT: Ah I don't know.BASKEY: Okay. Um but you do understand this [is] a, a phone number for free legal advice?APPELLANT: Mm huhBASKEY: And that we'll provide you with an opportunity to call that number, you do understand that right?APPELLANT: RightBASKEY: Um do you wish to say anything in an, now you're not charged with anything right now. Um do you wish to say anything ah you're not obliged to say anything unless you wish to do so but whatever you say may be given in evidence do you understand that?APPELLANT: Mm huhBASKEY: We're recording this and that we can use it as evidence?APPELLANT: OkayBASKEY: Okay. So what I'll do is I'll, I'll get you to um, ah just tell me a little bit about yourself and tell me why you called today. Okay? [Emphasis in original].
In considering the issue Rosenberg JA noted and relied upon the recent trilogy from the Supreme Court: R v Sinclair, 2010 SCC 35, R v Willier, 2010 SCC 37 and R v McCrimmon, 2010 SCC 36. He then offered the following in rejecting this argument:
In this case, the appellant's response to the second caution was simply, "Ah, I don't know". If that phrase constituted a positive indication of uncertainty as to the content of the right to counsel, the police would be obliged to provide the appellant with further and better information. As the court said in R. v. Willier at para. 31, "should a detainee positively indicate that he or she does not understand his or her right to counsel, the police cannot rely on a mechanical recitation of that right and must facilitate that understanding". However, that is not this case. In this case, "Ah, I don't know" was not an expression of uncertainty about the content of the right, which the appellant admitted he understood. Nor was it an invocation of the right to counsel and, by itself, would not trigger an obligation on the police to obtain a clear waiver. After the appellant said "Ah, I don't know", Constable Baskey confirmed with the appellant that he understood his rights:
Baskey: Okay. Um but you do understand that this [is] a, a phone number for free legal advice?Appellant: Mm humBaskey: And that we'll provide you with an opportunity to call that number, you do understand that right?Appellant: Right
Even taking into account the appellant's psychiatric condition as was appropriate, there is nothing to indicate that the appellant did not understand that he had the right to immediately consult counsel, if he wished to do so. There is no aspect of the interview that indicates that the appellant did not understand his right to counsel or that he was in any way deprived of the opportunity to exercise that right had he chosen to do so [paras 25-26]. [Emphasis added].Even taking into account the appellant's psychiatric condition as was appropriate, there is nothing to indicate that the appellant did not understand that he had the right to immediately consult counsel, if he wished to do so. There is no aspect of the interview that indicates that the appellant did not understand his right to counsel or that he was in any way deprived of the opportunity to exercise that right had he chosen to do so [paras 25-26]. [Emphasis added].