New & Notable: Voluntariness and Right to Counsel

Robert Reeves stabbed his father. His mother fled the house and called police. Reeves stayed in the house with his father. Shortly thereafter police arrived. Sgt Wadelius - who had been trained in hostage/crisis negotiations began to call the residence attempting to make contact with Reeves. On the third call Reeves answered.
At the time of the third call the police did not know (1) Reeve's mental and physical state; (2) if the victim was alive or the extent of his injuries; and (3) what other weapons may be in the house.
Very shortly into the conversation Sgt Wadelius elicited from Reeves that "...Reeves believed that Brian Baker [his father] was dead" [para 6]. Reeves continued to provide more information to Sgt Waledius.
At trial the Crown indicated its intention to rely upon the statement of Reeves during this conversation. The defence sought to bar the Crown from doing so as the statement was not voluntary and was obtained in violation of section 10(b).
Koenigsberg J ruled on the application: 2011 BCSC 1513.
With respect to voluntariness, the court first considered the argument that the record was not complete. While most of the conversation was recorded, the first few minutes were not. The court noted, however, that concerns flowing from this were attenuated by the following facts: (i) Sgt Wadelius repeated back what Reeves was saying; and (ii) Sgt Wadelius took notes. Koenigsberg J also considered the argument that Reeves did not have an operating mind and concluded:
(…) a careful review of the whole of the statement which took place over an hour and a half must be undertaken. A review of the content of the whole call indicates that Mr. Reeves was oriented in time and place and relationships. He knew he was talking to an RCMP officer. Mr. Reeves appeared to be intelligent and very self-absorbed. He also appeared to suffer from paranoid-type delusions. He seemed to be possessed of a number of delusions or delusional explanations for various and severe aches and pains involving burning sensations in his feet and other parts of his body, severe headaches, arthritis and gastrointestinal problems. He had grievances against the government and some minor ones against his step-father who he had allegedly stabbed to death. I find he did say the words -- I killed Brian -- within a minute or two of the beginning of the telephone communications. However, unlike either Whittle or Partridge, his delusional thinking had no causal relation to either why he may have killed his step-father, nor why he was speaking openly to the police officer [para 23]; [emphasis added].
Koenigsberg J concluded that the statement was voluntary.
With respect to the Charter issue, found that there had been a violation of section 10(b) at the point when Reeves would have felt psychologically restrained [para 56]. Despite the violation, however, Koenigsberg J held that the statement could be admitted under section 24(2):
The Crown had a very strong case both circumstantial and direct evidence pointing to Mr. Reeves as the person who stabbed Brian Baker. On the other hand, as set out in the courts analysis of the "Operating Mind" issue on this voir dire, on balance, both the initial relatively calm and rational incriminating expressions of Mr. Reeves that he killed Brian coupled with his many statements indicating he was not in the grip of delusions nor fear of the police, militate in favor of the reliability of the statement.
In addition, there is one other factor this Court considers particularly in looking at the "truth seeking" goal of a criminal trial, this statement, given Mr. Reeves "memory loss" is the only evidence of his state of mind at the time of the stabbing and shortly after.
This evidence was of some importance in relation to such issues as "intent" and whether Mr. Reeves was "criminally responsible" for this act.
Thus, the circumstances dictating that Mr. Reeves should not be given his Charter rights and warning during the negotiation to get him out of the house were not of the police making. Further, Sgt. Wadelius' conduct in how he spoke and what he said to Mr. Reeves remained non-manipulative and fair.
The reliability of the statement is unaffected by police conduct, and its importance in any evaluation of central issues in the trial, all taken together create that unusual set of circumstances where the presumption of inadmissibility of a statement taken in breach of s. 10(b) rights is overborn [paras 76-81].
DG Mack

New & Notable: They are Your Rights, be Diligent in Pursuing Them!

Teddy Waterson liked his lawyer; apparently he liked him alot. That is a good thing.  However, unreasonable insistence on speaking to his lawyer when his lawyer was not reasonably available deprived Waterson of an opportunity to speak to counsel.  While the trial judge felt this deprivation violated section 10(b), Gunsolus J, sitting on the appeal, disagreed: 2011 ONSC 2310
Waterson was stopped by Kawartha Lakes Police at approximately 3:46 pm.  Ultimately Waterson was arrested and advised of his right to counsel.  Once back at the station Waterson used the phone in the booking room to call his wife to obtain the number of his lawyer. At 4:25 the police placed a call to the office number for his lawyer and left a message.  The police then placed a call to the home number for that lawyer and also left a message.  At 4:55 - having received no call back - the police placed a second call to the office and residence of the lawyer.  The officer also apparently called Waterson's wife back to see if she had any success contacting the lawyer.    
After receiving no call back again the police determined there was no reasonable expectation that the lawyer was going to call back.  The officer then advised Waterson that he could call another lawyer and provided him a phone book - as well as advising him about duty counsel - to do so [para 8].
Waterson continually indicated that he would only speak with his lawyer [para 9].  Waterson refused to speak to any other counsel.  Waterson eventually did provide breath samples and was charged.

At trial Waterson argued that his right to counsel of choice, pursuant to section 10(b) of the Charter, was violated.  The trial judge agreed and excluded the evidence.  The Crown appealed.
On appeal Gunsolus J recognized that in some circumstances an obligation may arise for the police to provided additional information to an arrestee.  In the present case Gunsolus J held that no such additional informational obligation had arise.
Gunsolus J noted that the respondent had not waived his right to counsel [para 21] while on the other hand the police had made two attempts to contact his counsel of choice [para 20].  In the end Gunsolus J held:
In this case the respondent never waived his right to speak to his counsel of choice. He refused the option of contacting another lawyer, including available duty counsel. Therefore, an additional information obligation was not triggered, as in the Prosper case. The respondent continued to assert his right to speak only to counsel of choice. This is not a circumstance where the respondent had previously asserted his right to counsel, then indicated a change of mind such that he no longer wished legal advice. The respondent would not waive his right to speak to Mr. Beninger. He failed to exercise due diligence in obtaining legal advice by pursuing alternate counsel or to make use of the available duty counsel system... [para 24]; [emphasis added].
DG Mack




New & Notable: Back Chanelling your way to Waiver

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.
BASKEY: 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?
BASKEY: 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?
BASKEY: And that we'll provide you with an opportunity to call that number, you do understand that right?
BASKEY: 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?
BASKEY: We're recording this and that we can use it as evidence?
BASKEY: 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 hum
Baskey: 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].
DG Mack

New & Notable: Mourning a Death on the Way to Rome...

A recent decision from the British Columbia Supreme Court, R v Desmond, 2010 BCSC 1955, 2010 CarswellBC 3825, [2010] BCJ No 2823 demonstrates the problem that was created by the Supreme Court in R v Suberu, 2009 SCC 33 - a problem which I discuss at length in a paper I co-authored with Tim Wightman: A Death on the Way to Rome: Has Suberu Marked the End of Investigative Detention [see My Articles].
In Desmond the police were called to respond to a robbery in the area of 5th Avenue and 12th Street in New Westminster [para 7].  Acting Sergeant Lau was one of the responding officers and the first to reach the vicinity of the original call.  The call indicated that a male had been seen attempting to stuff a female into a Jeep Cherokee.  The male was described as wearing a white shirt and white bandana [para 8]. 
En route to the area Lau spotted a male and female walking side-by-side on the street.  The male, Lau would later testify, had a white bandana and white jacket; Lau also noted that there were not any other people in the area.  Based on the temporal connection, location and matching description Lau pulled in front of the man and woman and after exiting his cruiser ordered the man onto the ground and handcuffed him [para 13].  Lau then asked the male if he had anything that might injure the officers; Desmond helpfully responded "Yes, I have something in my front pocket that you might be interested in" [para 14].  Indeed he did, a loaded firearm.  
At trial Desmond sought the exclusion of the firearm alleging violations of his rights under sections 8, 9 and 10 of the Charter.  
In a very thorough and well reasoned ruling Schultes J considered first whether the detention was a valid investigative detention [paras 40-50] and second whether there were reasonable grounds to do a pat down search for safety [paras 51-61].  Not surprisingly - although worth the read - Schultes J concluded that there was a valid investigative detention and justification for a pat down search.
Turning to the most interesting and contentious issue - at least in my view - Schultes J queried "whether Sergeant Lau's failure to comply with the Suberu, requirement that the s. 10(b) right be provided immediately upon detention was justified by officer or public safety concerns" [para 62].  While it is interesting to consider whether officer or public safety concerns could justify a delay in the provision of rights to counsel, it seems clear that the answer must be no.  Surely the Supreme Court's decision in Suberu contemplated this - indeed, it was the subject of discussion in the others rulings in Suberu.  Schultes J does in fact come to this very conclusion: "It is apparent from the analysis of the Supreme Court in that decision that practicalities of law enforcement were carefully considered and that maintaining the bright line of immediate advice was found to be essential, even in light of those concerns" [para 65].  Ultimately Schultes J concludes that there was a violation of section 10(b).  Appropriately, Schultes J, nonetheless admits the evidence under section 24(2) of the Charter
As discussed in A Death on the Way to Rome, this is the very issue that has been created by Suberu.  Officer Lau acted appropriately; it was found that he had a justifiable basis to detain and to conduct a pat down search for safety.  However, since he did not advise Desmond of his right to counsel, before conducting the pat down search there was a violation of section 10(b).
While I think this is the correct outcome, based on an application of Suberu, I find it to be an outcome which is problematic for officers and one which will, over time, negatively impact on the administration of justice.  I expect that in very few situations where an officer feels it is necessary (as in Desmond) to do a pat down search for safety, will an officer feel comfortable or able to advise and provide a detainee with right to counsel before doing so.  If I am correct in my expectation, then I anticipate that there will be many section 10(b) breaches - like the one in Desmond.  However, in most cases, as in Desmond, the evidence will nonetheless be admitted.  The consequence? Over time, I think it will undermine respect for section 10(b) and possibly create dangerous situations for officers and the public were 10(b) rights are being provided in situations such as Desmond.  Not convinced, imagine what the officers in R v Clayton and Farmer, 2007 SCC 32 would do now, in light of Suberu...

DG Mack

Current & Curious: The police are trying to avoid giving RTC! Really?!

In the March 28, 2011 issue of the Law Times (Vol 22 No 11) Michael McKiernan wrote about the recent case of R v Balgobin, 2011 ONCJ 108: "Breath evidence tossed".  In his article McKiernan reports on the views of Balgobin's counsel, Richard Posner who reportedly commented that many police officers would avoid giving rights to counsel and view it as a nuisance.  The cases indeed raises some concerns about the reported conduct of the officer involved, but is there really an epidemic of officers trying to avoid giving rights to counsel?

Balgobin was charged with "over 80".  At trial he brought a motion to exclude the breath readings (which were almost twice the legal limit) on the basis that there had been a violation of section 10(b).  On the facts, as outlined by McKiernan, it seems there could be little doubt that there was a breach.  The officer apparently told the accused he might have to wait for two hours for a call back from a lawyer and despite the accused asking more than 30 questions about his legal rights the accused did not in fact ever take the opportunity to exercise his rights as he felt that he might be released faster if he did not exercise his right to counsel.  After finding that this conduct amounted to a violation of section 10(b) the trial judge went on to exclude the samples under section 24(2).
In his article McKiernan outlines Richard Posner's views on the case (Mr Posner was counsel for Balgobin).  Amongst those views are one that might catch your attention.  Posner is reported to suggest that the case highlights the attitude of many police officers about the right to counsel; he then stated "[t]here's a feeling that it's a technicality, something they've got to get done...[a]nd if it can be avoided, so much the better.  It's a nuisance for them".
Is this really the view of "many police officers"?  With respect, despite what appears to be troubling conduct on the part of the officer in Balgobin, it seems unfair and unfounded to use that decision as an opportunity to indict "many" other officers.  Indeed, consider how many impaired/"over 80" trials take place everyday in Canadian courts; then do a quick search and see how many section 10(b) violations are found everyday...there are some; they are not the majority.
Police officers sometimes make mistakes.  Others sometimes carelessly violate an accused's rights; still others may recklessly do so.  Most police officers, however, actually take the Charter seriously and respect an accused's rights guaranteed thereunder.  There is no epidemic of officers disrespecting the Charter - quite the contrary, which is undoubtedly one of the reasons why the Supreme Court brought about change to the section 24(2) regime in R v Grant, 2009 SCC 32

DG Mack