The Defence Toolkit – February 20, 2021

This week’s top three summaries: R v Blake-Samuels, 2021 ONCA 77: jumping #Crown’s sentence, R v LaFrance, 2021 ABCA 51: #police station interview #detention, and R v NC, 2021 ONSC 780: #conflict of interest.

R v Blake-Samuels, 2021 ONCA 77

[February 5, 2021] Sentencing: Process to Jump Crown's Proposed Sentence Where no Joint Submission [Reasons by J. C. MacPherson J.A. with Gary Trotter and Harvison Young JJ.A. concurring]

AUTHOR’S NOTE: While the SCC has recently settled the process required of judges to jump joint submissions in R. v. Anthony‑Cook, 2016 SCC 43, judges were still inconsistent in their approach to the ranges offered by the Defence and Crown in contested sentencing hearings. Herein the ONCA had the unusual task of addressing a sentencing situation where the judge both jumped the Crown's submission without giving an explanation why the range was exceeded and did not give notice to the parties of their intention to do so. The result left the ONCA uncertain about whether the reasons were entitled to any deference and how that would have been affected had Crown/Defence been able to substantiate their range in defence of the judge's intention. Ultimately, the ONCA had to ignore the judge's sentence and conduct their own approach afresh.

More importantly, the ONCA set out a firm process that must be followed to allow procedural fairness. 1. The judge must give notice that they intend to exceed the sentence proposed by the Crown. 2. The judge needs to give "clear and cogent reasons" explaining why they are going beyond the Crown's position after they hear additional submissions. 

Introduction

[1] The appellant, Tomoi Blake-Samuels, appeals from his sentence on the basis that the trial judge exceeded the Crown’s proposal on sentence without giving notice to counsel and without providing reasons why the proposed sentence was rejected.

[2] The appellant pleaded guilty to possession for the purpose of trafficking, possession of a loaded restricted firearm, possession of a loaded prohibited sawed-off shotgun, and possession of a firearm while prohibited under s. 51(1) of the Youth Criminal Justice Act, S.C. 2002, c. 1. At sentencing, defence counsel proposed a two year sentence and Crown counsel proposed a four year sentence. The sentencing judge imposed a global sentence of five years.

Facts

[3] In December 2016, police observed the appellant engage in a number of drug transactions. The appellant was arrested on December 13 on his way back to his apartment after one of these transactions. The police executed a search warrant for the appellant’s apartment where they found drug paraphernalia along with two prohibited firearms, and arrested another man in the apartment who was in possession of marijuana and $900.

[4] At the time of his arrest, the appellant was subject to a firearm prohibition order under s. 51(1) of the YCJA as a result of a manslaughter conviction in May 2014 arising from an accidental shooting of his friend. The appellant had no other criminal record.

[5] After a judicial pre-trial conducted by the sentencing judge, the appellant entered a guilty plea on April 7, 2017. In its submissions on sentence, the Crown indicated that a sentence of six to seven years would be appropriate but ultimately proposed a four year sentence. Defence counsel proposed a sentence of two years.

[7] Ultimately, the sentencing judge imposed a global sentence of five years, broken down as follows:

• Possession for the purpose of trafficking – 1 year
• Possession of a loaded firearm (two counts) – 4 years concurrent
• Breach of the firearm prohibition order – 1 year consecutive

[8] The sentencing judge then deducted pre-trial custody at a ratio of 1.5:1, made a DNA order and s. 109 order, and imposed an $800 victim fine surcharge.

[9] The appellant has served his sentence and is out of custody.

The Argument

[11] First, the appellant submits that the sentencing judge’s failure to give notice that he was considering exceeding the sentence proposed by the Crown undermined his right to respond to the case against him. He submits that where an issue has a significant bearing on liberty, the parties must be notified of the issue in order to have an opportunity to respond. Because the parties were not notified that the sentencing judge was considering a sentence beyond four years, neither counsel was able to address why a five year sentence was not proposed and why it was not viewed as necessary to achieve the sentencing principles.

[12] Second, the appellant submits that the failure to provide notice was compounded by the sentencing judge’s failure to provide reasons as to the need for a sentence beyond the Crown’s proposal. The reasons for sentence do not reveal why the principles of sentencing could only be satisfied with a longer sentence than that proposed.

[14] Finally, it is the appellant’s submission that a four year sentence is fit considering the guilty plea, that he took responsibility for his actions, his age, his family support, and his mental health issues.

The Legal Framework - Sentence Range Between the Crown and Defence

[19] In R. v. Grant, 2016 ONCA 639, this court held, at para. 164:

A trial judge is entitled to go beyond the Crown’s position if the sentence imposed is still reasonable. But a long line of authority in this court has held that when a trial judge proposes to do so, the trial judge should alert the parties and give them an opportunity to make further submissions. And ideally, if the trial judge still does impose a sentence in excess of a Crown’s position, the trial judge should explain the reason for doing so.

[20] On a number of occasions, this court has indicated that a sentencing judge should have informed the parties that they intended to exceed the Crown’s sentencing proposal, but has nevertheless upheld the sentences as fit: R. v. Hagen, 2011 ONCA 749, at paras. 5-6; R. v. Rosenberg, 2017 ONCA 313, at paras. 3-4; R. v. Bush, 2012 ONCA 743, at para. 11; R. v. Sinasac, 2015 ONCA 735, at para. 3.

[21] None of the cases from this court deal with the present situation, where a sentencing judge exceeds the Crown’s proposed sentence and fails to provide reasons for doing so.

The parties agree that the judge did not have to apply the public-interest test from Anthony-Cook to deviate upward from the Crown’s position on sentence.  What was before her was not a joint submission as there was not a “full agreement as to the appropriate sentence” (Anthony-Cook at n. 1).  It is not disputed that this error was, however, harmless (see Houle at para. 11).  Assuming appropriate caution has been taken to ensure that the requirements of section 606(1.1) of the Code are complied with in the case of a guilty plea (as was the case here), fair warning has been given of the possibility of departure from the range suggested by counsel and the parties have had a fair opportunity to respond, the judge is entitled to impose a proportionate sentence outside the range.  That said, as I will explain later, a sentencing judge’s reasons must adequately explain a principled rationale for the departure. [Emphasis added.]

Application of the Law

[29] There is no dispute that a sentencing judge retains discretion to exceed the Crown’s position on sentencing. What is in issue is the process that must be followed when a sentencing judge wishes to exercise that discretion. This court has not previously had the opportunity to answer this question in the context where a sentencing judge has both failed to provide notice of an intention to exceed the Crown’s proposal on sentence and failed to provide reasons for that decision.

[30] In my view, if a sentencing judge intends to exceed the Crown’s position on sentence, the judge is required to notify counsel, provide an opportunity for further submissions, and provide clear and cogent reasons for imposing a sentence beyond the Crown’s position.

[33] More than a recommendation that sentencing judges follow this procedure is required. It is not appropriate to deny procedural fairness during the sentencing process with the expectation that any error can be cured on appeal. It is contrary to the commitment to access to justice, contrary to natural justice, and contrary to a commitment to judicial economy to permit sentencing judges to go beyond counsel submissions and force offenders to rely on the appeal process to ensure fairness. Fairness should be afforded at all steps.

[36] Lacasse permits this court to intervene in a sentence when there has been an error in principle that has affected the sentence. It is impossible to say that the sentence was not impacted by the unavailability of submissions – our adversarial system relies on counsel’s presentation of submissions and framing of the issues. Neither party had an opportunity to explain why a four year sentence was appropriate or why a longer sentence would not be appropriate in the circumstances.

[37] The respondent takes the position that regardless of the procedural deficiency the sentence imposed was fit and that this court should not intervene. During sentencing submissions, the Crown indicated that, in general, a sentence of up to seven years could be appropriate. However, Crown counsel’s submission was nonetheless that four years was an appropriate sentence for this specific offender in his specific circumstances. Reverting to general ranges does not address the specificity required in sentencing and provides no indication to the offender, or the public, of why the sentence imposed was appropriate in the circumstances.

[39] Where, as here, a sentencing judge makes an error in principle that has an impact on the sentence “an appellate court must perform its own sentencing analysis to determine a fit sentence”: Lacasse, at para. 43. This means that the appellate court will “apply the principles of sentencing afresh to the facts, without deference to the existing sentence, even if that sentence falls within the applicable range”: R. v. Friesen, 2020 SCC 9, at para. 27.

[40] In this case a sentence of four years, as proposed by the Crown at sentencing, would be a fit sentence considering the factors raised by the appellant: the guilty plea, that the appellant took responsibility for his actions, his age, his family support, and his mental health issues.

R v LaFrance, 2021 ABCA 51

[February 9, 2021] Non-custodial Police Station Interview - When does it turn into a Detention for Charter Purposes?  [Majority Reasons by Madam Justice Bielby and Barbara Lea Veldhuis with Mr. Justice Wakeling Dissenting]

AUTHOR’S NOTE: Vive LaFrance! Sorry - I couldn't help myself.  There is a lot to be excited about in this decision. Police have often suggested they lacked reasonable grounds to arrest someone in interview situations where many defence counsel would suggest they were being disingenuous in order to prevent the reading of Charter rights to the accused prior to obtaining admissions. While the test in Grant for detention is pretty clear, its facts (and the facts of the companion case of Subaru) readily apply to a street encounter with police.  Usually psychological detention is triggered when there is a direction to do something physical or a prevention of doing something physical (like walking away) that triggers the Charter rights of the accused. The non-custodial police station interview is an odd situation because courts typically do not want to prohibit interactions at a police station with people who might turn out to be suspects. However, if you consider the test in Grant it is difficult to image a scenario where almost everyone who complies with a police request to attend a police station and is asked questions about what they did during an incident does not pass the threshold for Charter rights. If the accused in Grant or Subaru were asked to come to a police station for an interview and they complied, they would have been psychologically detained for a certainty.

The only real prior Appellate jurisprudence on point was Mohan from the ONCA in 1987. It has been applied with yogi-like flexibility by other Appellate Courts over the years. This case predated the modified-objective test clarified in Grant. A lot of the Mohan factors focus on the actions of police or the subjective state of mind of the accused without ever considering what the reasonable person in the shoes of the accused would have felt regarding their ability to comply with police direction. Ultimately, making Mohan fit Grant is like pounding a square peg through a round hole; It can be done, but it is far from a perfect fit. 

Herein the Majority of the ABCA applies the Mohan factors with sensitivity to the Grant test. Ultimately, the controlling factor appears to be the inexperience and naïveté of the accused.  His inexperience was viewed as a factor that, when applied through the modified-objective test, suggested he would feel he was required to cooperate with the police. To many defence counsel, this analysis would suggest something plainly obvious: any person who speaks with police in these circumstances is doing something only an unsophisticated person would do. However, in the past, that was not enough to suggest they were protected by Charter rights. Indeed, police were thereby encouraged to take advantage of the inexperienced tendency of the public to cooperate with them in order to conscript accused persons into statements against their interest. Indeed, the very people who needed the help of Charter rights like access to counsel the most were the very ones deprived of it by police officers' ability to fool them into making admissions against their interest. 

With this case likely going to the SCC thanks to the dissent of Mr. Justice Wakeling, the non-custodial police station interview is likely to get some fresh treatment and movement towards compliance with Grant/Subaru. The case has a real prospect of removing the common abuse of unequal knowledge of the law as between interviewees and the police. 

Overview of the Appeal

[3] We conclude that the appellant’s rights to be informed of his right to counsel, and to exercise that right were breached in relation to both of his police interviews. As such his statements made during those interviews as well as any other evidence obtained solely as a result of information contained in those interviews should have been excluded at trial, pursuant to s 24(2) of the Charter.

Statement of Facts

[7] On March 17, 2015, Mr. Yasinski died in hospital after having been found on a street in Fort McMurray, Alberta, bleeding heavily from a neck wound. On March 18, 2015 the police identified the 19-year-old appellant as a suspect by tracing the telephone number attached to recent calls to Mr. Yasinski’s cell phone, found on his body. A search warrant was executed on the address associated with that telephone number at 6:50 am on March 19, 2015. At least four police vehicles attended, along with a number of police officers in uniform, some in full body armour and one carrying an assault rifle. The appellant lived at that address, with his girlfriend, M, and his father. For some time prior both he and M regularly consumed cocaine, including on the night of the offence.

[8] Finding the appellant in bed, the police officers executing the search directed him to dress and leave the residence. When he asked permission to go outside to retrieve his cat, a police officer chaperoned him. Sgt. Eros, tasked to question the appellant, then took the appellant in the back of his unmarked police car to the police station to be interviewed. After arrival at the police station the appellant was taken through two secure doors to an interview room. He was interviewed for three-and-one-half hours without being advised of his right to seek legal advice at any time, during which time the search of his home remained ongoing. He was told that he did not have to talk to the police.

[9] The appellant was the only suspect under investigation at the time of this interview. Sgt. Eros did tell him he was free to leave but that he would have to ask permission to go to the bathroom or have a smoke break as they were in a secured environment. While the door to the interview room was unlocked, he was not told it was unlocked. When he did use the bathroom , it was under police chaperone. The appellant made no attempt to leave until Sgt. Eros indicated that the interview was concluded.

[11] Seizure of telephones was not expressly included in the search warrant yet two were taken, not including the one in the appellant’s possession when he went to the police station on March 19, 2015. The police took photographs of other property located in the appellant’s home, although it was not removed from the home at that time. Information provided by the appellant in this March 19, 2015 interview was relied upon to obtain further warrants to seize further items.

[13] The appellant was arrested on April 7, 2015. He was advised of his s 10(b) Charter rights to seek legal advice and consulted a lawyer by telephone from the telephone room at the police station for up to 15 minutes prior to being interviewed that day. Five and a half hours into this interview the appellant asked to be permitted to telephone his father for assistance in obtaining legal advice, a request refused by his interviewer, again Sgt. Eros. The appellant then promptly confessed to stabbing Mr. Yasinski when the latter grabbed at a knife brought to a drug purchase meeting as an aid to robbery, maintaining that he had not intended to kill but to use the knife only to threaten.

[14] Both M and the appellant testified during the voir dire. M testified that she and the appellant were regular cocaine users during the time period before the killing. She said the appellant had purchased cocaine from Mr. Yasinski at least once on the night of the killing. After it had been consumed, the appellant called Mr. Yasinski to come over to sell them more cocaine, after telling M that he wanted to rob and kill Mr. Yasinski to get money. M testified that while earlier she had stated to the police that the appellant had told her he did not intend to kill Mr. Yasinski but only rob him, in fact the appellant had told her he intended to kill and rob the victim before leaving the house that night.

[15] During neither his police statements nor trial testimony did the appellant state anything other than he had taken a knife to meet his drug dealer with an intent to threaten him with it, to assist in robbing him. He denied any intention to kill him at any point. The appellant denied telling M that he intended to kill. He testified that he pulled a knife on Mr. Yasinski while they sat in the front seats of the drug dealer’s car only to threaten him, but that Mr. Yasinski then grabbed his knife-holding hand and threatened the appellant, which led to a struggle during which he stabbed Mr. Yasinski once in the throat.

[16]  The April 7, 2015 statement was admitted into evidence at trial as a result of the voir dire ruling which is the primary subject of this appeal. In the voir dire decision, the trial judge gave reasons for rejecting the appellant’s evidence as incredible. Those reasons included the appellant’s admission to having lied in the past when faced with trouble or confrontation, that lying “is habitual”. The trial judge made an express finding that he did not believe the appellant concerning his motivation, psychological state and understanding of what occurred during his interactions with police, stating “I reject his testimony where it is not consistent with that of police officers or objectively recorded”.

[17] The appellant has not appealed from the findings on the voir dire that his April 7, 2015 statement was voluntary.

Analysis

Did the trial judge err in concluding that the appellant was not detained at the time of the giving of his March 19, 2015 police statement, with the result that his s 10(b) Charter right to retain and instruct counsel without delay and to be advised of that right was not breached?

[20] The appellant does not argue that his right to silence was breached in regard to any statement made to the police. He does submit, however, that he was psychologically, although not physically, detained at the time he gave his March 19, 2015 statement and that, as he was not first advised of his s 10(b) Charter right to retain and instruct counsel without delay, any evidence obtained as a result, directly or derivatively, was obtained as a result of this Charter breach.

[23] As noted by the trial judge, not all interactions with the police amount to detention, even interviews. The constitutional rights recognized by ss 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint; see R v Mann, 2004 SCC 52 at para 19, [2004] 3 SCR 59. Physical restraint is not alleged on this appeal but the appellant maintains that his March 19, 2015 interview was conducted while he was in a state of psychological detention.

[24] The onus is on an accused to show that in the circumstances he or she was effectively deprived of his or her liberty of choice and was thus psychologically detained. The test is an objective one. Before a court can conclude that a suspect or an accused was psychologically detained, the evidence must support the contention that police conduct effected a significant deprivation of liberty, whether or not the accused testifies; see R v Suberu, 2009 SCC 33 at para 28, [2009] 2 SCR 460. In other words, it is not a mandatory prerequisite to a conclusion of psychological detention that an accused person provide reliable testimony as to his state of mind while allegedly detained.

[25] Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or where a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. In the absence of physical restraint or legal obligation, to determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice the court may consider, among other things:

1.    The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or singling out the individual for focused investigation;
2.    The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter; and,
3.    The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; and level of sophistication; see Grant at para 44.

[26] In R v Moran (1987), 1987 CanLII 124 (ON CA), 36 CCC (3d) 225 at 258-59 (ON CA) [Moran], as applied by the Alberta Court of Appeal in R v Lee, 2007 ABCA 337 at paras 13, 23, 417 AR 331, the Court particularized factors relevant to analyzing the issue of detention:

1.    The precise language used by the police officer in requesting the person who subsequently becomes an accused to come to the police station, and whether the accused was given a choice or expressed a preference that the interview be conducted at the police station, rather than at his or her home;
2.    Whether the accused was escorted to the police station by a police officer or came himself or herself in response to a police request;
3.    Whether the accused left at the conclusion of the interview or whether he or she was arrested;
4.    The stage of the investigation, that is, whether the questioning was part of the general investigation of a crime or possible crime or whether the police had already decided that a crime had been committed and that the accused was the perpetrator or involved in its commission and the questioning was conducted for the purpose of obtaining incriminating statements from the accused;
5.    Whether the police had reasonable and probable grounds to believe that the accused had committed the crime being investigated;
6.    The nature of the questions: whether they were questions of a general nature designed to obtain information or whether the accused was confronted with evidence pointing to his or her guilt; [and],
7.    That the subjective belief by the accused that he or she is detained, although relevant, is not decisive, because the issue is whether he or she reasonably believed that he or she was detained. Personal circumstances relating to the accused such as low intelligence, emotional disturbance, youth and lack of sophistication are circumstances to be considered in determining whether he had a subjective belief that he was detained.

[27] ... However, the analysis should not end there. Importantly, the trial judge did not go on to expressly ask himself whether, on the basis of the evidence he did accept, being the evidence of the police officers or objectively recorded evidence, the only reasonable inference was one of detention.

[28] The trial judge observed that the appellant was told that the provision of a DNA sample, the seizure of his clothing and examination of his cell phone was voluntary and that he nonetheless cooperated with the taking of same. He concluded that the appellant was not unsophisticated but was at best naïve. Noting that the appellant was not accused of an offence or confronted with evidence pointing to his guilt during this interview, the trial judge concluded that the fact he was youthful and had minimal prior police exposure did not drive the conclusion he had been detained at that time. He concluded that the appellant must be intelligent, being a high school graduate and having post-secondary accomplishments, and that his interview responses, while generally brief, were consistent with a clear, full comprehension of the prompting questions. He inferred that the appellant participated in the interview in the hopes that his participation would counter police suspicion. He concluded that the appellant voluntarily provided his statement, his DNA sample, his fingerprints and his cellphone to the police at that time.

[29] While citing Moran and Grant in his decision, the trial judge did not conduct his analysis against the factors delineated in either of those cases. Examining the evidence he did accept, and applying it to those factors, first from Grant, we observe that the trial judge did not consider that:

•       the circumstances surrounding the March 19, 2015 interview must be assessed from the appellant’s perception, not from that of Sgt. Eros or the other police officers with whom he interacted that day;
•       the police were not simply providing general assistance or maintaining order in interviewing the appellant; they had singled him out for focused investigation and had no other suspects; the appellant knew that the investigation was in regard to a homicide and that he was a suspect; the statement was recorded and the appellant knew it was being recorded when he gave it;
•       while Sgt. Eros appeared friendly during the interview and no physical force was used, the interview occurred in a secured area in the police station from which the appellant was told he could not exit without a police escort, and it lasted 3.5 hours; at every point from the moment he was awoken by police that day until the police drove him home at the conclusion of the interview he was in police presence or alone in the interview room at the police station; and,
•       the appellant was 19 years old , Indigenous, had had very limited prior exposure to the police and was of much smaller stature than Sgt. Eros or the armed and uniformed officers that had woken him up just prior to his being taken to the police station.

[30]           Moving on to the factors identified in Moran, the trial judge did not consider that:

•       the appellant was not given a choice of having the interview conducted in his home, after the search was completed or in an area that was not being searched;
•       the appellant was taken to the police station for the interview in the back of an unmarked police vehicle;
•       the questioning occurred at a relatively advanced stage of the investigation, albeit within 2 days of the homicide; the appellant was the only suspect; the only reasonable inference is that the March 19, 2015 interview was conducted solely for the purpose of gaining evidence to implicate him in the commission of the crime; this was not a situation where the appellant was interviewed in the context of interviewing a number of witnesses contemporaneously; he was singled out for focused investigation; Sgt. Eros conducted the interview with the goal of obtaining evidence that would assist in identifying the perpetrator, at a time when the police knew he had been the last person to telephone the deceased;
•       while the appellant was not asked and did not confess to the killing on that date, the only reasonable inference that could have been drawn by him was that the taking of the DNA and fingerprint samples, the seizure of his clothing and the examination of his phone was for the purpose of harvesting evidence of the person responsible for committing the crime;
•       the police had good reason to believe that the accused was involved in the killing given the information referred to in the information to obtain the search warrant executed that day, including the presence of the appellant’s telephone number on the deceased’s cell phone, demonstrating his as the last call received by the deceased; and,
•       the questions asked included questions designed to identify the appellant as the person responsible for killing Mr. Yaskinski although he was not directly asked and did not admit to being the person who killed Mr. Yasinski during that interview.

[31] While the trial judge did address the appellant’s intelligence, youth and level of sophistication, the conclusion that he was sophisticated but was also naïve in deciding that his participation would counter police suspicion is inconsistent. A naïve person is not a sophisticated person. A sophisticated person would not have imagined, as the subject of a homicide investigation in these circumstances that readily giving a DNA sample, his fingerprints, his clothing and access to his telephone could do anything other than put him solidly in the frame for the offence.

[32] Looking at the appellant’s personal circumstances from his perspective we observe that he had never, on any prior occasion, in any interaction with the police in relation to this charge or others, been advised of his right to seek the advice of counsel, or given an opportunity to exercise that right. This differed, for example, from the facts recently considered by this Court in R v Saretzky, 2020 ABCA 421 where the accused had been advised of his s 10(b) rights by police numerous times in the past, although not on the occasion where he admitted to having committed a third murder.

[33] The only reasonable inference from all of these factors is that, objectively speaking, the appellant must have thought he was required to cooperate with the police. He faced significant legal jeopardy. He was the only suspect the police were considering and yet was not provided with the right or ability to speak to a lawyer before Sgt. Eros sought and harvested information from him that lead to his arrest shortly thereafter on the charge of first degree murder.

[34] The analytical landscape does not change because the police interviewer framed each of his questions as a request not an order, or initially told the appellant that he did not have to participate if he did not wish to do so. To the extent that the trial judge concluded the statement was by consent and informed, that is a palpable and overriding error.

[35] In failing to expressly address the circumstances as they would be reasonably perceived by the appellant, in the context of the above evidence, we conclude that the trial judge subtracted a requirement to the controlling legal test for detention and thus made an error of law in his analysis of detention as an aspect of the appellant’s s 10(b) Charter rights when he made his March 19, 2015 statement. Had the trial judge conducted that analysis from the perspective of a person in the appellant’s situation, the only reasonable inference from the facts he found to be true would have been that the appellant would have considered that he had a legal obligation to comply with Cst. Ero’s requests, and that he had no choice but to comply with those requests and answer the questions put to him.

[37] Further, Grant at para. 44 requires a trial judge to address an accused’s minority status as an aspect of addressing the circumstances as they would be reasonably perceived by that accused relating to detention. This is irrespective of whether the accused directly raises concerns about intimidation or discriminatory treatment with the police interviewer. Membership in a minority which has a history of disproportionate interactions with police make these factors relevant to determining whether an accused views himself as being detained by the police. The trial judge erred in not drawing an inference, in the circumstances of this case, that the appellant’s minority status, along with his youth and inexperience with the law would result in intimidation during a police interview in a way that minimized any ability to resist.

[38] The appellant was not a mature person simply invited to drop by the police station to make a statement about an event with which he may have had some peripheral involvement. He was taken in the back of a police car. While he was in an unlocked interview room, he would not have been able to leave the secured area in which it was located on his own. He was retained in that room, at one point being told to stay put, for 3.5 hours, a period of significant duration. He knew that he was being questioned in the context of a murder investigation. The facts the police were courteous, did not make express threats, appeared to offer the ride to the police station to assist the appellant rather than to compel him to attend and that he was allowed to go home at the conclusion of the interview before being arrested days later, do not drive the conclusion that the appellant enjoyed a meaningful choice not to submit to police questioning on March 19, 2015.

[48] The consultation with counsel provides an opportunity for a lawyer to inform the detainee of their rights, but also to discuss the benefits and drawbacks of cooperating with the police investigation, as well as strategies to resist cooperation should that be the detainee’s choice; see Sinclair at para 29. In the context of a custodial interrogation, “the purpose of s 10(b) is to support the detainee’s right to choose whether to cooperate with the police investigation or not, by giving him access to legal advice on the situation he is facing. This is achieved by requiring that he be informed of the right to consult counsel and, if he so requests, be given an opportunity to consult counsel”; see Sinclair at para 32.

[50] That purpose is generally achieved by providing the detainee with a single opportunity to consult with counsel; see Sinclair at para 47. This typically fulfills both the informational (the detainee is advised of their right to counsel) and implementational (the detainee is given an opportunity to exercise his right to consult counsel) components of s 10(b). However, Sinclair recognized that there will be instances in which a single consultation with counsel is not sufficient or becomes insufficient to achieve the purpose of s 10(b).

[52] The Court outlined three particular situations in which the right to further consultation would be triggered, while noting that this list is not a closed one. They include the development of new procedures involving the detainee, a change in the jeopardy potentially faced by the detainee after his or her initial consultation with counsel, or reasons arising to question the detainee’s understanding of his s 10(b) rights; see Sinclair at paras 50-52.

[53] In applying these principles to the facts of this appeal, we conclude that the above exchange between the appellant and Sgt. Eros provides evidence of an objective change in circumstances that shows that the appellant may not have understood the initial s 10(b) advice he received from legal aid counsel in the telephone room, that he needed the opportunity to pose further questions of counsel and have those questions answered, and that the initial advice he received, viewed contextually, was no longer sufficient. Alternatively, these circumstances fall within an open category, one not expressly defined in Sinclair. As such, the decision of Sgt. Eros to proceed with the interview on April 7, 2015 in these circumstances resulted in a further breach of the appellant’s s 10(b) right to counsel.

[55] The application of the third exception finds support in case law, in Dussault c R, 2020 QCCA 746 [Dussault] where the Court found that the right to a second consultation with counsel was required when it became objectively apparent that the advice received in the first call was incomplete, there because the lawyer was on his way down to the police station. Here, when the appellant told Sgt. Eros that the legal aid lawyer had told him he needed to consult a lawyer face-to-face, the only objectively available reasonable inference to be drawn from that is that the advice he received in his telephone consultation was incomplete.

[60] Add to this a review of the evolving situation during the course of his April 7, 2015 interview. The appellant first made a request to contact a lawyer with the assistance of his father at the very point Sgt. Eros first sought a confession to causing Mr. Yaskinski’s death. At this point he, as a 19-year-old, had received, one time in his life only, some three hours earlier, a description of his right to counsel followed by a brief telephone consultation with a legal aid lawyer who had no objective information about the circumstances of the charge the appellant faced and who advised him to sit down with a lawyer for further legal advice in person.

[61] From these factors it is objectively observable that the appellant did not adequately understand the brief legal advice he had received just prior to the interview, nor understand the serious legal jeopardy he faced in these most serious of circumstances. He was confused about his choices at that point. The appellant was very different from Mr. Sinclair who was found to have understood his choices and the right to remain silent. Unlike in Sinclair, there is no indication that the appellant knew that the police could lie to him to obtain information. He was not repeatedly told that it was his choice as to whether he wished to speak to the police but rather he was led toward the opposite conclusion as a result of the interviewer’s questioning after he asked to speak to his father. As in Grant, the power imbalance between this young man and the police was exacerbated by his youth and inexperience.

[63] While case law does not reveal any bright-line rule about these contextual factors individually, they all must be taken into account when considering whether the appellant should have been entitled to a second consultation with counsel on April 7. His case shares many similarities with Dussault, Doonanco, and Badgerow. The fundamental similarity between these cases and the appellant’s circumstances is that the initial advice received by counsel was premised on the understanding that a subsequent consultation would need to occur. Further, the fact that the detainees in Doonanco and Badgerow were told not to speak to police did not suffice in the context, as that perfunctory advice did not allow the accused to make a meaningful choice as to whether to cooperate with the police investigation or not.

[64] If we are incorrect in concluding that this evidence did not amount to a sufficient, objective indication that the appellant needed more information before deciding whether or not to confess, the situation nonetheless triggers Sinclair’s open-ended exception to the rule that s 10(b) entitles a detainee to only a single consultation with a lawyer. That further consultation was necessary to ensure that s 10(b) achieved its purpose in this case, that is, that the appellant was provided with the advice needed to make a meaningful choice as to whether to make a statement, including giving a confession to having killed Mr. Yaskinski, to the police.

[66] It is not therefore necessary to address the appellant’s alternate argument that Sgt. Eros undermined the legal advice initially given to the appellant with the result it was distorted or nullified. This conclusion also does not rest on an analysis of whether that statement was derivative of his earlier March 19, 2015 statement as such an analysis is unnecessary.

Did the trial judge err in concluding that the police had not breached the appellant’s s 8 right to be secure against unreasonable search and seizure both in relation to the items seized during the execution of search warrants or seized during his interview on March 19, 2015?

[75] The situation was different, however, in relation to the items seized from him during the course of his March 19, 2015 interview with Sgt. Eros, including his clothing, his DNA, his fingerprints and the contents of the cell phone he carried with him at that time. That evidence, as well as any further evidence that would not have been located without it, was obtained as a result of the breach of his s 10(b) right to counsel on that day. As noted, the appeal record is not sufficient for us to attempt to identify each item that falls within this category at this time, but presumably that information is identifiable and will be available to all counsel prior to the retrial if it is not already in their hands. If a dispute arises as to whether a particular piece of evidence falls within this category, that issue is to be resolved on the retrial.

[78] Taking in turn each of these three avenues of inquiry in this case, the first is the seriousness of the Charter-infringing state conduct. We must consider the nature of the police conduct that infringed the Charter and led to the discovery of evidence.“The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the Courts to dissociate themselves from that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law”; see Grantat para 72.

[79] The denial of the right to counsel on both occasions in this case was particularly serious given the grave nature of the offence under investigation, the potential consequences of conviction on the appellant and his particular vulnerability given his young age and circumstances in life. In such circumstances the police should not have applied a narrow interpretation to the right to counsel.

[81] The second avenue of inquiry is the impact of the breaches on the Charter-protected interests of the appellant. This requires “an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed.” The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence will signal to the public that Charter rights are of little actual avail to the citizen, thus bringing the administration of justice into disrepute; see Grant at para 76.

[82] This requires us to consider our conclusion that these breaches completely undermined the appellant’s right to counsel. He was led to confess to killing a person without having an opportunity for a thorough, reflective discussion with a lawyer fully apprised of his jeopardy. While he ultimately admitted the killing at trial, the Charter-breaching methods used by the police to harvest evidence from him no doubt had a serious impact on his interests.

[84] Here, the appellant’s confession must be considered to be reliable, as an admission against interest in these circumstances. It was, however, largely extraneous to the core of the Crown’s case at trial, given he confessed only to having caused the death and not to having planned or intended to kill, as well as his immediate admission, at the start of his trial, to that fact he caused the death made through the offer of a guilty plea to manslaughter. None of the impugned evidence, if excluded as a result of the operation of s 24(2) would result in the Crown being unable to proceed with a retrial of either or both manslaughter or second degree murder based on the remaining evidence.

[85] Therefore, having considered these three avenues of inquiry, we conclude that had the trial judge considered this issue, he could not reasonably have anything other than that the admission of the evidence in question would bring the administration of justice into disrepute. Thus, the impugned evidence should have been excluded at trial and should not be admitted at the retrial either directly or as a basis for cross-examination of defence witnesses, including the appellant should he choose to testify.

 Conclusion

[86] The appeal is allowed and the matter remitted for retrial. None of the evidence obtained as a result of appellant’s March 19, 2015 or April 7, 2015 interviews with the police and his statements to the police made on those dates may be tendered in evidence or referred to during that trial. That includes, without limiting this list, his DNA evidence, fingerprint evidence, evidence produced from the seizure of his clothing or evidence obtained from his cell phone during the March 19th interview.

R. v. N.C., 2021 ONSC 780

[February 1, 2021] Application to Remove Defence Counsel for Conflict of Interest [C.S. Glithero J.]

AUTHOR’S NOTE: This a useful case to have in your briefcase when the Crown attempts to apply to remove you from the record for conflict of interest. It sets out the process, has useful guidance for how to prepare for the hearing (ie. waivers from both clients and Independent Legal Advice), and ultimately comes down on the side of the defence. There has to be a realistic chance of adversity between the clients and, in most circumstances, having independent counsel cross-examine the witness-client will fix the issue. 

Overview

[1] This is a Crown application for an order removing Ms. Jordana Goldlist as counsel for N.C., who is jointly charged with two other young persons, S.B. and Y.F., with the second degree murder of another young person, A.H. The three young persons were committed for trial on September 8, 2020. The election is for trial with a jury. No dates have yet been set for pretrial motions or for trial. That is in part because of this application, but also because counsel for the other two young persons have indicated an intention to bring a certiorari application to quash the committal for trial on the charge of second degree murder.

[2] The basis for the requested order is that Ms. Goldlist is alleged to be in a conflict of interest because she also acts on other unrelated charges for a Crown witness in this case.

Summary of the Allegations

[3] A.H. was 17 years of age when he was shot to death on April 15, 2019. His body was found sitting in the front passenger seat of a vehicle owned by his parents, which had been driven to a reasonably remote and forested area. Civilians reported seeing three young males standing outside the parked vehicle. One of them stopped to ask if the three young persons needed any help. One of those young persons was described as having an appearance which is said to fit the description of the respondent. The young persons declined any help. Shortly after that, another civilian walked up to the car and found the body.

[4] The three young persons were later observed about a kilometre from the crime scene, flagging down a vehicle and requesting the civilian occupant to call a taxi for them.

[5] Minutes later, the respondent and the other two young persons were arrested by the police. The victim’s blood was found on the respondent’s clothing and on a gun found in his possession. The victim’s blood was also found on the clothing of the young person, Y.F. He was also found to be in possession of the victim’s cell phone.

[6] The GPS tracking feature on the victim’s cell phone indicates him to have been at the home of Y.F. at approximately 5:50 p.m. on April 15, 2019, the evening during which the shooting occurred.

Facts for the Application

[7] L.W. was a 17 year old young person when he gave a statement to the police. He was 19 years old when he was called by the Crown at the preliminary. The Crown intends to call him to testify at the trial. He is represented by Ms. Goldlist on totally unrelated charges, which is the foundation for this application.

[10] The following paragraphs summarize the relevant portions of the statement. The summary will appear confusing because the pronouns “he” and “they” appear to be interchanged without care or thought. This careless interchange of the pronouns is as they appear in the videotape and the transcript. I have italicized them as it is this loose terminology which gives rise to competing interpretations.

[11] The meat of the interview began at the top of page 4 where Detective Adams tells L.W. that he is investigating the murder of A.H. and that it has come to his attention that L.W. knew the victim and also knew who the three young people accused of the killing are, and that L.W. had some kind of communication or conversation with one of that group on the day that A.H. was killed. Although not contained in the materials filed, Crown counsel advised me during submissions that apparently L.W. had indicated to his probation officer that he knew something about this case, the probation officer then advised the police of what he had been told. The police then invited L.W. to come to the station for an interview. The information received by the police from the probation officer apparently accounts for the assertion by Det. Adams that he had information as indicated above. Note that the information suggested that L.W.’s communication was with one of the group and that it was on the day of the murder.

[12] In response, L.W. tells the detective that he went to school with the victim and accordingly knows him, and that he thinks he knows two of the three young persons charged with the killing as being Y.F. and N.C. and that he had no knowledge of the third person.

[13] The detective then tells L.W. that his understanding is that in some way or another they called you or you spoke to one of them or communicated maybe by text or something with one of them on the day that A.H. was killed. L.W. replies that it was Y.F., he called me and said he was gonna come over to talk about something, but he ended up not coming. When the detective tries to determine what day that happened L.W. says “you’re obviously saying that it’s the day that it all happened.” The detective answers, “well that’s what I’ve been told by someone else.”

[14] In another portion of the interview, L.W. says that they messaged me and they weren’t answering and then I saw on the news about the killing and I just knew, so I sent them a Snapchat and none of them opened it, so I just knew something was going on. Then L.W. says he didn’t open it, so I’m guessing that he was arrested and after that says it’s like both of them, Y.F. and N.C., but none of them answered.

[15] At another point the detective asks how did L.W. know it was them who were involved and L.W. answers “cause we met another day, like they, they told me they were gonna --Y.F. said he was gonna come over he had to talk to me about something.” But he never came over.

[16] The detective asked whether they had said anything to L.W. before this and L.W. answers that he doesn’t know what they were up to, they just told me they had something to talk about, about some money or something. I was messaging them, and they have a lick or some kind of sting and they wanted to come over and talk about it. A lick means a robbery of someone. L.W. tells the police that when I spoke to him, it was just Snapchat. I just have him on Snapchat. When I messaged them, they messaged me asking about a sting and then like he said he wanted to come over and talk about it that night, but I said it was too late. Y.F. told me that by Snapchat. Everything was by Snapchat.

[19] The detective asked L.W. whether he ever got any texts from the respondent and L.W. says no, only from Y.F. Out of the two of them, I am closest to Y.F. L.W. advises the officer that he would be surprised if it was Y.F., or if it was N.C., and I don’t know the other kid and I don’t know of any of them having a gun. He adds that N.C. just got out for a gun charge or something like that, but he said it wasn’t his, but he’s been around guns. The officer asked whether they told him anything else about the lick that they were planning to do and L.W. answers that they wouldn’t say that they would come to the house to talk about it but then no one came and no one talked to me about it.

[21] The detective then asked whether L.W. thinks the lick that they were talking about, the robbery, was related to the killing and L.W. answers that he has no clue, it could be, or it couldn’t be, they never talked to me. They just told me they had something they wanted to talk about and would come in person, but they never ended up showing up and they weren’t answering me for awhile, the two of them.

[22] The detective then indicates that he is unclear as to why L.W. thinks they did it, just because they weren’t answering his texts, and L.W. answers “No, I didn’t say, I didn’t think they did it, I just thought, I just thought they were, like they might be involved.”

[24] At the request of the detective, L.W. looks through some Snapchats on a cell phone and the detective asks if L.W. could show him N.C.’s Snapchat and L.W. answers that he could not as he did not message N.C. When asked about a deleted message on April 17, 2019, L.W. says it was about drugs.

[26] At the preliminary hearing, the transcript of Y.F.’s police interview was filed pursuant to s.540(7) of the Criminal Code.

[29] The result was that L.W. was then called to testify viva voce. The videotape of the police interview of L.W. was then played, essentially as his testimony in-chief, following which L.W. was asked by the Crown whether his evidence would be the same today. L.W. answers that that was a year ago and he was just dealing at that time with the passing of his mother and his girlfriend had just recently gotten pregnant and that he was using a lot of drugs at the time, so he didn’t remember saying any of this.

[30] L.W. was then cross-examined at the preliminary hearing by counsel for Y.F., who agreed with her that the drugs he was on influenced his ability to think clearly and impacted his ability to comprehend information and his ability to communicate his thoughts accurately and impaired his memory.

[31] In that cross-examination he also said he was not aware of any licks in relation to Y.F. in 2019, and that to the best of his recollection, Y.F. never messaged him at any time with any information about somebody who was going to be licked, and L.W. agreed that Y.F. was not good at messaging, that his messages were always mixed up, words and letters, and in trying to interpret most of his messages, you had to tell Y.F. to call him so that you could figure out what he was trying to say. L.W. also agreed that he had told the police that he and Y.F. were going to talk, but then Y.F. never came over, so L.W. had sent follow-up messages to find out what was happening and he only did so because Y.F. hadn’t come over. But Y.F. didn’t answer. Counsel for Y.F. suggested that L.W. had then sent a message to N.C., but L.W. answered that he had not messaged N.C.

[34] In re-examination by Crown counsel, during which L.W. maintained that he had not messaged N.C., and he remembers watching himself on the video showing the detective that he never messaged N.C.

[35] Ms. Goldlist did not cross-examine L.W. at the preliminary hearing.

[36] There is no evidence of any cell phone contact or other social media contact between the respondent and L.W. on either the day before or the day of the killing.

Waivers

[37] Filed on the application is a waiver by the respondent confirming that Ms. Goldlist is his counsel of choice, acknowledging that he is aware that Ms. Goldlist is also counsel for L.W. on unrelated charges, and setting forth the essence of the Crown’s assertion that L.W.’s statement indicating messages being sent to “them” means himself and Y.F. N.C. further states that he recognizes L.W.’s interests could come into conflict with his at trial, but that at this juncture, L.W. is not an adverse witness towards N.C.’s position. N.C. also indicates that he has received independent legal advice, that he will not be claiming a conflict of interest as a result of his counsel also representing L.W. and wishes Ms. Goldlist to remain as counsel of choice.

[38] There is also a waiver signed by L.W. acknowledging that Ms. Goldlist represents him on unrelated charges, that she also represents N.C. on the murder charge and asserts there is no factual relationship between his charges and N.C.’s charge on the murder. L.W. acknowledges he could end up being a witness at trial potentially, either for the Crown or the defence. He acknowledges that the Crown’s current theory is that he spoke to Y.F. about a robbery, that the robbery may have been in relation to the victim of the homicide and that the Crown asserts that he had sent a message to both Y.F. and N.C. following the killing. He states his awareness that if he is called as a witness at N.C.’s trial, his interest and that of N.C. may come into conflict during the trial. He further indicates that he has received independent legal advice and that if called to testify at N.C.’s trial, he will not be claiming a conflict of interest because of Ms. Goldlist’s representation of him. He consents to Ms. Goldlist defending N.C. as well.

Legal Principles

[40] In MacDonald Estate v. Martin[1] the Supreme Court of Canada established that in determining whether a conflict exists which should lead to disqualification there are competing values to consider. One is the need to maintain the high standards of the bar and public confidence in the integrity of our legal system. Another “countervailing value” is that client not be deprived of counsel of choice except for good reason. Lastly is the desirability of fostering reasonable mobility within the profession.

[41] In that case the issue of conflict arose in the context of the possibility of improper use of confidential information obtained from a client by counsel now representing a party opposite in interest. The Court introduced the test as being whether a reasonably informed person would be satisfied that no misuse of confidential information would occur.[2]

[43] Each client is entitled to the undivided loyalty of his or her counsel.  Such loyalty is important not only to the client, but to the integrity of the administration of justice as it is of high public importance that public confidence in such integrity be maintained.[3]  “Loyalty” in that sense refers to dedication to the effective representation of the client, unfettered or diminished by concerns for the legal wellbeing of another client. It includes the duty of candour to the client. The court also noted the  “countervailing value that a litigant should not be deprived of his or her choice of counsel without good cause”.

[44] At paragraph 29 of Neill the court held that a “bright line” is required and “is provided by the general rule that a lawyer may not represent one client whose interests are directly adverse to the immediate interests of another current client - even if the two mandates are unrelated - unless both clients consent after receiving full disclosure (and preferably independent legal advice), and the lawyer reasonably believes that he or she is able to represent each client without adversely affecting the other. “

[45] The court must be concerned with actual conflicts of interest and potential conflicts that may develop as the trial unfolds and accordingly “Trial judges must to some degree, speculate as to the issues which may arise and the course the trial will take.  The trial judge’s task is particularly difficult since they cannot be privy to the confidential discussions which may have passed between the clients and counsel which may reveal the source of potential conflicts.  Given those circumstances, trial judges must proceed with caution and when there is any realistic risk of conflict of interest, they must direct that counsel not act for one or perhaps either accused.”[4] (emphasis added).

[46] In R. v. Brissett[5], Hill J. observed that a finding that counsel possesses confidential information of such relevance that would be or might be utilized in a trial cannot be based merely on conjecture and assumption.  At para. 40, the court also observed “Where there is no real adversity between the former and present clients, however, conflict of interest problems are less likely.”

[47] R. v. St.Clair Wright[6] is an example of a case where the Crown sought an order removing counsel of record in circumstances where the witness in question was just as liable to give evidence favourable to the defence as to the Crown, it was a factor to take into account.  It was held that if the Crown witness became adverse then alternate counsel could cross-examine that witness.

[48] In R. v. Quick[7]a junior counsel had acted for a Crown witness in the same matter, but part of her evidence was consistent with the defence and parts of it served as the foundation for the defence advanced. It was held that there were no opposing interests and hence no conflict.

[49] In R. v. M.Q.[8], 2012 ONCA 224, the court held, in a case where it was discovered during trial that counsel acting for the accused had previously been consulted by the complainant about the same matters.  There the appellant wanted to proceed with the trial with his counsel of choice.  Both the complainant and the accused signed waivers and both received independent legal advice, and both were content to have the trial continue.  At para. 37, the court held that while such waiver was not determinative, it was deserving of significant weight.

Analysis and Ruling

[55] The videotaped statement given by L.W. to the police is in my opinion full of loose language and vague thought and might very well be the product of drug influence as claimed by L.W. at the preliminary. Clearly, he exhibited little ability or inclination to be precise in his language. His alternative use of “he” and “they” makes it confusing but in my opinion, a reading of the interview as a whole, leads one to conclude that he spoke by text message only with Y.F. and never with N.C. I also note that it was the officer, not the witness, who first introduces interchangeability of “he” and “they”. That it was only Y.F. with whom he messaged is made abundantly clear when that precise question was put to him near the end of the interview and made even more clear during his evidence at the preliminary hearing.

[56] I have concerns about the admissibility of his evidence at all. It seems to me, fairly read, that it amounts to little more than a hunch that N.C. was involved. It seems to come down to Y.F. having indicated to him he wanted to come over to talk about something, and L.W. learning of the murder through the media, and Y.F. not showing up as he indicated he would, that led L.W. to speculate that Y.F., N.C. and the third unknown individual might be responsible for the murder.

[57] In terms of the references in the statement to a “lick” to him meaning a robbery, it’s an inference on his part that that’s what Y.F. wanted to come over and talk about, and is then even more remote in that he admits there is no basis to think it was this robbery, if indeed robbery was part of the murder.

[58] ... The references in L.W.’s statement to the respondent N.C. having just got out on a drug charge, or having a history with guns, or in anyway being involved in “licks” or robberies, raise discreditable conduct issues which would require a discreditable conduct application by the Crown, as such evidence is presumptively inadmissible. A probative value versus prejudicial effect assessment may also bear on the outcome. Without such references to alleged criminal inclinations on the part of the respondent, L.W.’s “hunch” is left even more naked.

[59] During submissions, I inquired as to whether the Crown contemplated a further interview of L.W. I was advised that the Crown does not, and rather intends to try and rehabilitate this witness, or put another way, to have him become honest and forthright, at trial is quite speculative and not an appropriate basis upon which to deny the respondent of his counsel of choice.

[60] I take into account the informed waivers of both the respondent and the witness. I also take into account the professed willingness on the part of Ms. Goldlist to utilize an independent counsel to cross-examine the witness if it should develop that a realistic adversity in interest exists.

[61] On the basis of the evidence as it now stands, together with the speculation as to how this may unfold, or is likely to unfold, I am not satisfied that a realistic risk of adversity in interest has been made out. This application is dismissed.