R. v. C.D.H., 2011 ABQB 381

Court of Queen ’ s Bench of Alberta Citation: R. v. C.D.H., 2011 ABQB 381 Date: 20110617 Docket: 100401470Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - C.D.H. Accused Corrected judgment: A corrigendum was issued on July 20, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. Restriction on Publication: By Court order, the evidence taken at the preliminary inquiry may not be published, broadcast, or transmitted in any manner.

The ban continues until the accused is discharged after the inquiry, or, if the accused is committed to stand trial, until the end of the trial. See the Criminal Code , s. 539. By Court Order, information that may identify the Accused described in this judgment as C.D.H. may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application.

See the Criminal Code , s. 486.5. _______________________________________________________ Memorandum of Decision Voir Dire Ruling of the Honourable Mr. Justice R.A. Graesser _______________________________________________________

Nature of Application [ 1 ] C.D.H. claims that his

section 10(

b) Charter rights were violated when he was interviewed by police at police headquarters. He seeks to have the video recording of the interview excluded from the evidence at trial pursuant to s. 24(2) of the Charter . Background [ 2 ] C.D.H. is charged with two counts of sexual assault arising out of incidents which occurred on March 6, 2010. Following complaints by two women, C.D.H. was telephoned by Detective Sean Armstrong of the Edmonton Police Service. He told C.D.H. that he wanted C.D.H. to come to police headquarters to be interviewed in relation to the complaints. [ 3 ] Det.

Armstrong was an experienced police officer who had been assigned to the EPS Sexual Assault Unit for some three years at the time of the interview. He testified that he was concerned about C.D.H.’s truthfulness during the telephone conversation, and told C.D.H. that if he didn’t come to Police Headquarters to be interviewed, he would issue a warrant for C.D.H.’s arrest. [ 4 ] C.D.H. had turned 18 a couple of months before the incidents. He was still living with his parents and was attending high school. After the telephone conversation with Det. Armstrong, he immediately drove to police headquarters.

When he arrived at police headquarters, he waited for Det. Armstrong in the waiting room. After approximately 10 minutes, Det. Armstrong met him and escorted him to an interview room in the secure part of the building. He kept C.D.H. waiting in the interview room for a few minutes before beginning the interview. [ 5 ] The entire interview was video recorded. For the purposes of this voir dire, only the first 15 minutes or so of the interviewed were played in evidence. This was the commencement of the interview, including the Charter and caution portion of it.

The Crown advised that it did not intend to use the interview as part of its case, but wanted the video recording in evidence for cross-examination purposes in the event C.D.H. elected to testify in his own defence. Argument [ 6 ] Mr. Beresh argues on behalf of C.D.H. that Det. Armstrong violated C.D.H.’s s. 10(

b) rights by failing to properly inform him of his Charter rights to counsel. No issue was taken with the common-law voluntariness of the interview and resulting statement, although Mr. Beresh was critical of the circumstances under which Det. Armstrong took C.D.H.’s statement. He pointed to the threat of an arrest warrant, C.D.H.’s youth (having just turned 18) and the intimidating circumstances of an inexperienced young man having to sit and wait for Det. Armstrong in the public area of the downtown police station, and then being led through secure areas in the police station.

He noted that had C.D.H. been a couple of months younger, his parents would have had to have been present for the interview. [ 7 ] C.D.H.’s mother testified on the voir dire. The main purpose of her testimony was to describe C.D.H.’s character at the time of the incidents. She described her son as a follower, who respected authority. According to C.D.H.’s mother, her son had never been in trouble before, other than having a couple of traffic violations.

She testified that her son was someone who would likely confirm that he understood someone (like a teacher or coach), rather than appear as if he did not understand what was being communicated to him. [ 8 ] She did not suggest, however, that C.D.H. had any intellectual or learning difficulties. [ 9 ] C.D.H. testified on the voir dire. He testified that he did not understand the waiver which was read to him and which he signed; that he was confused, scared and nervous and “just went along”with what Det. Armstrong was saying.

He testified tht “I didn’t really understand what he was talking about ‘cause I was scared, my mind wasn’t in the right place at the time, and I didn’t – I had no clue what was going on.”

[ 10 ] When he answered Det. Armstrong’s question “does that mean you want to waive it?”, he testified that he told Det. Armstrong “I don’t know if I need to contact a lawyer because I really don’t know if I need one.” [ 11 ] He signed the waiver because he “wanted to get things over with”. He testified throughout his evidence that he was “nervous, scared, confused what was going on”. [ 12 ] When asked “did he (Det. Armstrong) ever ask you to explain back what he was saying to see if you understood”, he testified that Det. Armstrong had not. In fact he was asked at one stage “what does that mean to you”?

He started to answer, and his response was essentially interrupted when he told Det. Armstrong that he didn’t know about legal aid and Det. Armstrong then proceeded with a further explanation of the right to contact duty counsel. [ 13 ] C.D.H. did not testify that he wanted to call a lawyer. He agreed on cross-examination that he knew that he could call a free lawyer and had been given the telephone number and had been shown where the phone booth was.

He did not testify that he did not understand that he could, at any time, have stopped the interview process and ask to be taken to the phone booth to consult a free lawyer. [ 14 ] His evidence was to the effect that he was scared and nervous. He had never been interviewed by the police before. He hadn’t called his parents after the call from Det. Armstrong and was worried about their reaction. He didn’t know if he needed to talk to a lawyer or not. He wanted to get the interview over with. He felt rushed. [ 15 ] The issue Mr. Beresh takes with the interview is that Det.

Armstrong did not give a clear description of C.D.H.’s rights to counsel. Evidence of that is found in C.D.H.’s apparent lack of understanding about legal aid. When asked if he understood the rights that Det. Armstrong had explained, C.D.H. replied that he didn’t know about legal aid. Det. Armstrong pointed to the wording in the document he was reading from, which C.D.H. could see because Det. Armstrong was seated beside him. Det.

Armstrong proceeded to repeat the right to consult a free legal advice service. [ 16 ] When C.D.H. was specifically asked if he wanted to contact a lawyer right away, he expressed uncertainty, as he “didn’t know if this was going to court”. [ 17 ] Det. Armstrong then proceeded to obtain a waiver of s. 10(

b) rights from C.D.H.. Mr. Beresh argues that C.D.H. gave an equivocal response to the question of waiver. Both the Crown and Mr. Beresh have had transcripts prepared of the interview. The transcript preparers have produced different versions of what was said by C.D.H. in response to the question. Mr. Beresh argues that the response testified to by C.D.H. (“I don’t know”) contradicts the Det. Armstrong’s evidence that C.D.H. agreed to waive his rights and the waiver that C.D.H. signed shortly after responding to Det.

Armstrong’s question. [ 18 ] It is clear from viewing the video recording that C.D.H. did not take time to read the written waiver form presented to him for signature by Det. Armstrong. Det. Armstrong asked him if he had any questions. C.D.H. had none. C.D.H. did sign the waiver or acknowledgment, without asking questions about it. [ 19 ] Det. Armstrong testified that C.D.H. said to him that he did not want to contact a lawyer. That was clear to Det.

Armstrong both from the words C.D.H. used, and his non-verbal responses (nods). [ 20 ] The transcripts of the interview are only a guide to what was said at the interview. The video recording itself is the real evidence. I have watched and listened carefully to the video that the actual questions and answers at this juncture of the interview. [ 21 ] During the voir dire, the Crown proffered a witness who had manipulated the audio component of the video recording to enhance the voices for better clarity. No expert report had been provided in advance and Mr. Beresh objected to the admissibility of this evidence.

Before ruling on the admissibility of the enhanced audio reproduction, I listened to the audio component with the benefit of ear buds. I was satisfied that I could understand the important portions of the conversation without the need for enhancement or any manipulation. The Crown witness was thus not required to testify.

[22] After offering to take C.D.H. to the phone booth, Det. Armstrong proceeded to obtain a waiver from C.D.H.. When he askedC.D.H. if C.D.H. wanted to waive his right to consult a lawyer, C.D.H. replied “no, that’s alright”. Watching C.D.H.’s body language leftme with the impression that he was saying “no, I don’t want to contact a lawyer”. He gave no indication of wanting to take Det.Armstrong up on his offer to take him to the phone booth, or have Det. Armstrong immediately stop asking questions. [23] However, Det. Armstrong sought clarity, by asking: Q. Det.

Armstrong: Does that mean you want to waive it, or do you want to not contact a lawyer at this time, or do you want to contact him later, or what doyou want? A. C.D.H.: I don’t need to contact a lawyer ‘cause I already... [24] The last portion of the sentence was inaudible. [25] There are no issues over common-law voluntariness, and there is no issue regarding the timeliness or sufficiency of the s. 7caution that C.D.H. need not give a statement, but if he did it could be used to incriminate him. S. 10(

b) Duties [26] S. 10(

b) provides: 10. Everyone has the right on arrest or detention (

b) to retain and instruct counsel without delay and to be informed of that right; Case Law [27] Counsel provided me with a number of authorities which I will deal with briefly. [28] R. v. Voss, (ON CA), [1989] O.J. No. 1124 (C.A.) turned on whether the suspect had been detained beforethe questioning began. The Ontario Court of Appeal held that he was detained, and excluded the statements given. Here, there is no issuethat C.D.H. was detained so the case has no application. R. v. Moran, (ON CA), [1987] O.J. No. 794 (C.A.) was also adetention case and has no application here. [29] In R. v.

Evans, (SCC), [1991] 1 S.C.R. 869, the accused gave a negative answer to the question as to whetherhe understood his rights. At para. 44, the Supreme Court found a violation of the accused’s s. 10(

b) rights, stating: Dealing first with the initial arrest, I am satisfied that the police did not comply with s. 10(b). It is true that they informed

the appellant of his right to counsel. But they did not explain that right when he indicated that he did not understand it. A person whodoes not understand his or her right cannot be expected to assert it. The purpose of s. 10(

b) is to require the police to communicate theright to counsel to the detainee. In most cases one can infer from the circumstances that the accused understands what he has been told.In such cases, the police are required to go no further (unless the detainee indicates a desire to retain counsel, in which case they mustcomply with the second and third duties set out above).

But where, as here, there is a positive indication that the accused does notunderstand his right to counsel, the police cannot rely on their mechanical recitation of the right to the accused; they must take steps tofacilitate that understanding. [30] In R. v. Brydges, (SCC), [1990] 1 S.C.R. 190, the Supreme Court interpreted the accused’s question as towhether they had a legal aid system in Manitoba to be a request for counsel.

The court held that where the accused’s ability to consultcounsel appears to be dependent on his ability to afford a lawyer, there is an informational obligation on the police to advise of theexistence and availability of legal aid.

Lamer C.J.C. writing for the majority held at para. 20: In my view then, these policy concerns in respect of making police officers' duties under the Charter clear and of ensuringthat all detainees are made aware of the existence of duty counsel and Legal Aid, complement each other, and support the view thatinformation about the existence and availability of duty counsel and Legal Aid plans should be part of the standard s. 10(

b) caution uponarrest or detention. [31] In R. v. Prosper, (SCC), [1994] S.C.J. No. 72, the court held that where “Brydges duty counsel” is available,there is a positive obligation on the police to advise of that as part of the informational component. [32] Lamer C.J. stated at paras. 49-51:

Section 10(

b) of the Charter does not impose a substantive constitutional obligation on governments to ensure that duty counsel isavailable, or likewise, provide detainees with a guaranteed right to free and immediate preliminary legal advice upon request. However,in jurisdictions where a duty counsel service does exist but is unavailable at the precise time of detention, s. 10(

b) does impose anobligation on state authorities to hold off from eliciting evidence from a detainee, provided that the detainee asserts his or her right tocounsel and is reasonably diligent in exercising it. In other words, the police must provide the detainee with what, in the circumstances,is a reasonable opportunity to contact duty counsel. While this holding-off requirement does not apply in cases of urgency, theevidentiary presumption under s. 258(1)(

d) of the Code, which provides that readings taken within two hours of an alleged offence areproof of the blood alcohol level at the time of the offence, is not a sufficiently "urgent" factor to override a detainee's right to counselunder s. 10(b). In addition, once a detainee asserts his or her right to counsel and is duly diligent in exercising it, thereby triggering the obligation on thepolice to hold off, the standard required to constitute effective waiver of this right will be high.

Upon the detainee doing something whichsuggests he or she has changed his or her mind and no longer wishes to speak to a lawyer, police will be required to advise the detainee ofhis or her right to a reasonable opportunity to contact counsel and of their obligation during this time not to elicit incriminating evidencefrom the detainee. With respect to the initial information component of s. 10(b), I would reiterate what I said in Bartle, supra -- namely, that a detainee isentitled under s. 10(

b) to be advised of whatever system for free, preliminary legal advice exists in the jurisdiction at the time and of howsuch advice can be accessed (e.g., by dialing a 1-800 (toll-free) number). Where no such duty counsel system exists, as was the case hereand in Matheson, a detainee must nevertheless be advised upon detention of his or her right to apply for Legal Aid under the applicableprovincial or territorial legal-aid plan. [33] My reading of the above is that where there is a system for free, preliminary legal advice (duty counsel), the detainee must beinformed of that under s. 10(b).

Where there is no duty counsel system in place, the detainee must be informed of the availability of legalaid. [34] Prosper’s sister case, R. v. Bartle, (SCC), [1994] 3 S.C.R. 173 held at para. 16: The purpose of the right to counsel guaranteed by s. 10(

b) of the Charter is to provide detainees with an opportunity to be informed oftheir rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfil thoseobligations: R. v. Manninen, (SCC), [1987] 1 S.C.R. 1233, at pp. 1242-43. This opportunity is made available because,

when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has thisperson suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself. Accordingly, a person who is"detained" within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty: Brydges, at p. 206; R. v. Hebert, (SCC), [1990] 2S.C.R. 151, at pp. 176-77; and Prosper.

Under s. 10(b), a detainee is entitled as of right to seek such legal advice "without delay" andupon request. As this Court suggested in Clarkson v. The Queen, (SCC), [1986] 1 S.C.R. 383, at p. 394, the right tocounsel protected by s. 10(

b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process. [35] In Alberta, the starting point for a s. 10(

b) analysis is R. v. Luong, 2000 ABCA 301. There, Berger J.A. stated at para. 12: 12 For the assistance of trial judges charged with the onerous task of adjudicating such issues, we offer the following guidance: 1. The onus is upon the person asserting a violation of his or her Charter right to establish that the right as guaranteed by the Charter hasbeen infringed or denied.

Section 10(

b) imposes both informational and implementational duties on state authorities who arrest or detain a person. 3. The informational duty is to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence andavailability of Legal Aid and duty counsel. 4. The implementational duties are two-fold and arise upon the detainee indicating a desire to exercise his or her right to counsel. 5. The first implementational duty is “to provide the detainee with a reasonable opportunity to exercise the right (except in urgent anddangerous circumstances)”. R. v.

Bartle , (1994), (SCC), 92 C.C.C. (3d) 289 (S.C.C.) at 301. 6. The second implementational duty is “to refrain from eliciting evidence from the detainee until he or she has had that reasonableopportunity (again, except in cases of urgency or danger)”. R. v. Bartle, supra, at 301. 7. A trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with a reasonableopportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the right to counselwas provided with a reasonable opportunity to exercise the right. 8.

If the trial judge concludes that the first implementation duty was breached, an infringement is made out. 9. If the trial judge is persuaded that the first implementation duty has been satisfied, only then will the trial judge consider whether thedetainee, who has invoked the right to counsel, has been reasonably diligent in exercising it; the detainee has the burden of establishingthat he was reasonably diligent in the exercise of his rights. R. v. Smith, (1989), (SCC), 50 C.C.C. (3d) 308 (S.C.C.) at315-16 and 323. 10.

If the detainee, who has invoked the right to counsel, is found not to have been reasonably diligent in exercising it, theimplementation duties either do not arise in the first place or will be suspended. R. v. Tremblay, (1987), (SCC), 37C.C.C. (3d) 565 (S.C.C.) at 568; R. v. Ross, (1989), (SCC), 46 C.C.C. (3d) 129 (S.C.C.) at 135; R. v. Black, (1989), (SCC), 50 C.C.C. (3d) 1 (S.C.C.) at 13; R. v. Smith, supra, at 314; R. v. Bartle, supra, at 301 and R. v. Prosper ,(1994), (SCC), 92 C.C.C. (3d) 353 (S.C.C.) at 375-381 and 400-401. In such circumstances, no infringement is madeout. 11.

Once a detainee asserts his or her right to counsel and is duly diligent in exercising it, (having been afforded a reasonable opportunity

to exercise it), if the detainee indicates that he or she has changed his or her mind and no longer wants legal advice, the Crown is requiredto prove a valid waiver of the right to counsel.

In such a case, state authorities have an additional informational obligation to “tell thedetainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this timenot to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had thatreasonable opportunity” (sometimes referred to as a “Prosper warning”). R. v. Prosper, supra, at 378-79.

Absent such a warning, aninfringement is made out. [36] Luong repeats the dual requirement from Brydges of advising of duty counsel and legal aid. [37] From R. v. Baig, (SCC), [1987] 2 S.C.R. 537, it is clear that if the accused has not established that he or shedid not understand the right to retain counsel when detained, the accused must establish that he or she asked for the right to counsel butthat it was denied. [38] C.D.H. has submitted several Alberta Provincial Court decisions bearing similarities to this case: R. v. Shaw, 2001 ABPC, R.v. Schadeck, 2007 ABPC, R. v. Turcotte, 2008 ABPC 16 and R. v.

Howes, 2010 ABPC 186. These cases demonstrate that each matterturns on its unique facts. [39] In Shaw, Lefever P.C.J. (as he then was) found that the accused’s ambiguous response to the question “do you want to call alawyer?” should be interpreted as the accused asserting the right, and the failure of the waiver to deal with Prosper was fatal to theinformational requirements of s. 10(b).

These defects were not cured by simply placing the accused in a telephone room withouttelephone books or a list of legal aid lawyers. [40] In Schadeck, the accused and the police officer had a somewhat circular discussion about the accused calling a lawyer andwhy he might want to do that. In those circumstances, Anderson P.C.J. held that the reading of the waiver suggested that subjectively,the officer believed that the accused had invoked the right to counsel, noting at para. 24 that “the accused wanted legal advice that theofficer could not give to him”.

Anderson P.C.J. found that having asserted the right to counsel, the officer told the accused of his optionsin a confusing way, such that the waiver obtained was not an informed one. [41] Turcotte is a case where the trial judge concluded that the accused “did not fully appreciate his right to legal advice at thattime” (at para. 11) and suggested that in those circumstances, the officer should have sought a waiver to “alleviate any uncertainty”. [42] In Howes, the accused responded to the question “do you want to talk to a lawyer” by saying “not right now”.

A formalwaiver was then read and the accused answered “yes”. No details of the waiver were given in the decision. Semenuk P.C.J. found thatthe accused’s waiver was not given in a clear and unambiguous manner, largely because he did not accept the officer’s evidence as towhat his standard practices were and he was critical of the officer’s note-taking. [43] None of these cases is determinative of the issues in this matter. [44] The Crown submitted a number of authorities as well. In R. v.

Brown, 2009 NBCA, the New Brunswick Court of Appealreiterated the obligation on the accused to be reasonably diligent in the exercise of his rights, following R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435. The Crown argues here that C.D.H. was not reasonably diligent in exercising his right to counsel, if hewanted to access those rights. [45] R. v. Valk, 1986 CarswellAlta 779 (C.A.), is cited for the same principle. R. v. Jones, 2005 ABCA, holds that the onus is onthe accused to establish that he was reasonably diligent in exercising the right to counsel. [46] R. v.

Van Binnendyk, 2007 ONCA, is cited for the principle that while the accused has a right to counsel of choice, that rightis not unlimited, and only exists for a reasonable time. Once a reasonable time has passed, to be considered to be reasonably diligent andsatisfy that burden on him, the accused must exercise his rights by calling a different lawyer. This was recently confirmed by themajority in the Supreme Court of Canada decision, R. v. McCrimmon, 2010 SCC 36.

That case also confirmed that there was no right ofthe accused to have counsel present during any questioning, and dealt with requests for further consultations with counsel during the

questioning, but after the accused had received legal advice before the questioning began. [ 47 ] R. v. Sinclair, 2010 SCC 35 deals further with the right to consult counsel again, after the opportunity has been given and declined, and the circumstances where developments in the investigation warrant further opportunities to consult with counsel. [ 48 ] In R. v.

Willier , 2010 SCC 37 , the Supreme Court of Canada limited the requirements of giving Prosper warnings, and confirmed that the receipt of inadequate legal advice by the accused did not violate the state’s obligation to advise of and facilitate the accused’s right to counsel. [ 49 ] In R. v. Lapoleon , 2007 BCPC 308 , cited by the Crown, the accused testified on the voir dire. The accused was asserting at trial that his right to counsel of choice had been violated. On cross-examination, the accused stated that he “kind of made my own decision” to not keep silent after receiving that advice from another lawyer.

In the circumstances of the case, even though he had not been able to contact his lawyer of choice, the court was not satisfied that his s. 10(

b) rights had been violated. The Crown argues that C.D.H. is in a similar situation as was Mr. Lapoleon. He made a decision to “get it over with” rather than exercise the rights which had been explained to him: the right to silence and the right to immediate legal advice. [ 50 ] R. v.

McKenzie , 2001 ABCA, holds that a specific Prosper warning does not need to be given if the informational requirements indicated by Prosper are given in some fashion (in spirit and in substance): that the detainee has a right to a reasonable opportunity to contact counsel, and that the police are to hold off questioning pending the exercise of the detainee’s rights. In that case, the officer had given the detainee three opportunities to contact counsel, and also indicated that he would hold off questioning if the detainee wanted to contact counsel. The Crown argues that the interview by Det.

Armstrong, with repeated enquiries as to whether C.D.H. wanted to call a lawyer, and that he could call a lawyer anytime during the interview, was similar. Conclusions from Case Law [ 51 ] S. 10(

b) contains informational and implementation components. There is no issue that C.D.H. was detained at the time of the interview. The Crown does not seek to introduce any evidence of what C.D.H. said before the interview began. He was a suspect at the time of Det. Armstrong’s telephone call to him to have him come to police headquarters to be interviewed. C.D.H. was detained once he accompanied Det. Armstrong to the interview room. So C.D.H. was required to be Chartered and cautioned before any potentially admissible statements were taken from him. [ 52 ] While Det.

Armstrong may have intimidated C.D.H. to some extent by threatening to have him arrested if he didn’t come to police headquarters to be interviewed, that was not an improper threat. Det. Armstrong already had information from the complainants as to C.D.H.’s involvement in the incidents complained of. He could undoubtedly have issued an arrest warrant without speaking to C.D.H..

He offered no improper inducement; it was not improper to give C.D.H. the choice of coming voluntarily to be interviewed, or be arrested before being interviewed. [ 53 ] Nothing turns on C.D.H.’s age, or his mother’s description of his respect for authority or tendency to confirm understanding even if he didn’t understand a communication. [ 54 ] The Charter does not differentiate among adults.

An eighteen year old adult has no greater or lesser Charter rights than does a twenty-one year old, or a forty-five year old or a ninety year old. [ 55 ] Different considerations may apply to adults suffering from a disability. But there was no evidence before me of any disability C.D.H. was under.

Inexperience and naivety are not recognized disabilities. [ 56 ] The Charter thus does not distinguish between the obligations owed to a mature, street-wise eighteen year old living and working independently from those owed to a naive, sheltered eighteen year old still living at home with his or her parents and going to school.

[ 57 ] Otherwise, the Chartering obligation would become almost entirely subjective. [ 58 ] The test for proper Chartering is an objective test: in the context of the interaction between the state and the suspect, did the police officer reasonably satisfy his or her obligation to advise the suspect or detained person of his or her immediate right to consult with free duty counsel or counsel of choice, and did the police officer reasonably satisfy his or her obligation to facilitate immediate contact with counsel, and did the police officer hold off questioning pending the detainee’s decision? [ 59 ] It was not necessary for Det.

Armstrong to involve C.D.H.’s parents in any way before contacting or interviewing C.D.H.. Indeed, as an adult, it would have been a violation of C.D.H.’s privacy rights for Det. Armstrong to have any communications with his parents about the incidents (unless it was appropriate to interview the parents in connection with the investigation). It was up to C.D.H., an adult, to decide whether and when (if ever) to involve his parents in this matter. [ 60 ] It is true that if the incidents had occurred before C.D.H.’s eighteenth birthday he would have had to have been treated differently by Det. Armstrong.

His parents would undoubtedly have been involved before C.D.H. was interviewed.. But while C.D.H.’s youth, naivety and compliant nature may be relevant to other matters, they are not relevant to the duties owed to him by Det. Armstrong any more than would be the experience of a hardened and oft-Chartered criminal to his or her Charter rights. [ 61 ] R. v. Baig suggests that it is open for the accused to proved that he did not understand his right to counsel when it was explained to him.

No case was cited to me where the accused had established that he did not understand his rights, in the face of evidence from the police officer as to what had been said, and in circumstances where objectively, the police officer should not have been suspicious about the accused’s comprehension. [ 62 ] The onus of proving a Charter breach is on the accused. As noted in Baig , where the accused does not satisfy that onus, the accused must then establish that he requested counsel. [ 63 ] It is not necessary for the Crown to prove that the suspect actually understood the Charter information being presented.

The initial question is whether the police officer took reasonable steps to deliver the message to the suspect. That involves a contextual analysis of the circumstances and the demeanour of the suspect. There may be different considerations for suspects who appear to have limited intellectual capacity; there may be different considerations for suspects who appear to have limited communication skills; and there may also be different considerations for suspects who appear tired, emotional or frightened.

There are definitely different considerations for suspects under a disability, whether it be physical, mental or drug or alcohol induced. This is essentially an objective test. [ 64 ] Circumstances during the questioning which suggest a lack of comprehension require greater diligence on the part of the police officer, and failure to address such special circumstances may taint the process. [ 65 ] After the fact evidence from the accused as to his lack of understanding is by its nature suspect. It is self serving.

Absent corroboration from the circumstances of the questioning, it will be very difficult for an accused to meet the burden on him to prove he did not understand his right to counsel. That then requires the accused to establish that he requested the assistance of counsel. [ 66 ] Appropriate Chartering is not completely formalistic and is not satisfied by a rote recitation of a printed form. While there are “standard” Charter wordings used, and many police officers carry such wording with them for immediate reference, the obligation goes beyond simply reading the words.

Varying from standard wording is somewhat risky for a police officer, although failing to accurately explain any required portions of the wording used is also risky. [ 67 ] There can be no “perfect” wording developed because of the objective and contextual nature of the analysis. Chartering is not necessarily satisfied by reading a paragraph or two to a suspect before proceeding to ask questions. [ 68 ] The informational obligation is satisfied when the police officer has taken reasonable steps to inform the suspect of the right

to seek counsel before any questions are asked of him or her and there are no special circumstances indicating a lack of understanding on the part of the suspect. [ 69 ] The implementation obligation does not arise if the suspect clearly and unequivocally indicates that he or she does not wish to consult counsel before being asked questions. [ 70 ] If the detainee wants to exercise his or her right to counsel, he or she must do so reasonably diligently. [ 71 ] If the detainee is equivocal as to consulting counsel, the police officer must attempt to obtain a waiver before questioning the detainee. [ 72 ] A waiver is not necessary if the police officer is satisfied, and can satisfy the court, that the suspect clearly and unequivocally communicated that he or she did not want to consult counsel.

A waiver is necessary if the suspect is unsure as to what to do, and the police officer wants to continue to pursue the interview at that time. [ 73 ] To be effective a waiver must be clear and unequivocal.

There is no requirement that a waiver be in writing, but written waivers are undoubtedly helpful from an evidentiary point of view. [ 74 ] Where the suspect has waived his or her Charter rights, a Prosper warning is necessary, as may be further Chartering if circumstances change during the interview, such that the suspect’s jeopardy changes (a more serious offense) or the strength of the case against the suspect strengthens (new information, evidence). [ 75 ] The facilitation obligation is satisfied when the police officer takes reasonable and timely steps to assist the suspect to contact a lawyer of choice, or a free legal advice service.

That may be satisfied by placing the suspect in a private telephone room, providing phone books or appropriate phone numbers, and allowing a reasonable time for communications to occur. If it is clear that communications were unsuccessful, questioning can only occur thereafter if the suspect has given a proper and unequivocal waiver. [ 76 ] A police officer is not in a position to give legal advice and it would be improper to do so.

The police officer’s duty is to inform the suspect of the right to seek and obtain counsel before being interviewed, to facilitate the receipt of advice and to hold off questioning until the suspect has decided on whether to consult counsel or not. [ 77 ] From my review of the case law, it is not necessary for a police officer to answer the question: “why would I need/want legal advice?”. It is not necessary for a police officer to advise a suspect of the benefits of obtaining legal advice.

For those in the system (police, prosecutors, defence lawyers, and judges) the answer is obvious: the lawyer might advise the suspect to say nothing to the police and to exercise the right to silence. [ 78 ] Connecting the dots, in other words requiring the police officer to answer the above question by saying “because a lawyer might tell you not to agree to being interviewed at all”, might well be viewed as an educational, rather than informational, function.

Going beyond providing information and getting into education may be seen as an unwarranted interference with legitimate investigation and interrogation techniques. [ 79 ] In my view, neither the Charter nor the case law which has interpreted s. 10(b) (so far) imposes a duty on the state to educate a suspect as to the reasons why he or she might want to employ the rights available. I decline to expand the state’s obligation in general (or Det. Armstrong’s obligations in particular) to require the giving of advice as opposed to information. The interviewing officer may be obliged to provide explanations or

definitions for the words used in Chartering the suspect as part of the communication requirement. However, the interviewing officer does not have to answer “why” questions or explain to the detainee what lawyers may advise or why the detainee might want to call a lawyer.

[80] As stated in R. v. Hebert, (SCC), [1990] 2 S.C.R. 151 which was reaffirmed in R. v. Sinclair, 2010 SCC 35at paras. 24 - 25: 24 The purpose of s. 10(

b) is to provide a detainee with an opportunity to obtain legal advice relevant to his legal situation. In thecontext of a custodial interrogation, chief among the rights that must be understood by the detainee is the right under s. 7 of the Charterto choose whether to cooperate with the police or not. 25 The purpose of s. 10(

b) of the Charter and its relationship with the right to silence under s. 7 were stated by McLachlin J. (as shethen was) in R. v. Hebert, (SCC), [1990] 2 S.C.R. 151, at pp. 176-77. These rights combine to ensure that a suspect isable to make a choice to speak to the police investigators that is both free and informed:

Section 7 confers on the detained person the right to choose whether to speak to the authorities or to remain silent.

Section 10(

b) requiresthat he be advised of his right to consult counsel and permitted to do so without delay. The most important function of legal advice upon detention is to ensure that the accused understands his rights, chief among which is hisright to silence. . . . Read together, ss. 7 and 10(

b) confirm the right to silence in s. 7 and shed light on its nature. The guarantee of the right to consult counsel confirms that the essence of the right is the accused’s freedom to choose whether to make astatement or not. The state is not obliged to protect the suspect against making a statement; indeed it is open to the state to use legitimatemeans of persuasion to encourage the suspect to do so. The state is, however, obliged to allow the suspect to make an informed choiceabout whether or not he will speak to the authorities.

To assist in that choice, the suspect is given the right to counsel. [Emphasis added.] [81] Cases such a Brydges and Prosper recognize the strong connection between a suspect’s s. 7 right to silence and the suspect’ss. 10(

b) right to counsel. However, the cases do not require the police to make that connection for a suspect. It is up to the suspect to seekcounsel and to counsel to advise the suspect on his or her right to silence. [82] It is also not necessary, in my view, for the interviewing officer to ask the suspect if he or she understands the Chartering andcautioning. While an affirmative answer may give some comfort, it is not proof that the suspect actually understood what was beingsaid. The question to be asked is whether the suspects wants to contact a lawyer before being asked any questions.

If the answer is clearlyand unequivocally “no”, there are no further informational obligations remaining, and the duty to facilitate does not arise. [83] I fail to understand, where Brydges Duty Counsel is available and the police inform the suspect of that fact and how to goabout accessing such counsel, why it is necessary at the commencement of an interview to also advise the suspect as to the potentialavailability of legal aid. The issue at this stage of the interview is to ascertain whether the suspect has been made aware of legalresources available to him before he participates in the interview process.

It is essentially to attempt to ensure that a suspect is aware ofhis right to silence, and has access to legal advice before he starts to incriminate himself. Pre Brydges duty counsel, that was satisfied byrequiring that information be given as to the availability of free legal services.

With the advent of Brydges duty counsel, however, theSupreme Court has repeated the need to advise as to the “existence and availability of the applicable systems of duty counsel and legalaid” (Prosper at 21, for example) and the Alberta Court of Appeal repeated the dual requirement in Luong. [84] If the detainee has been properly advised of the existence and availability of immediate, free duty counsel and indicated thathe did not want to contact counsel, or waived the right at that time, it should not be necessary for the police officer to advise as to theexistence and availability of legal aid at that point.

There may be an obligation to do so if the detainee is eventually charged. [85] I do not see the failure to explain the legal aid system and how to access it at the beginning of an interview (and after thedetainee has been advised of Brydges duty counsel) as a breach of the accused’s Charter rights. I recognize that this may appear to becontrary to Brydges and Luong, but seems to me to be in accord with what was said in Prosper and is consistent with the recent trilogy ofs. 10(

b) cases: Sinclair, McCrimmon and Willier.

[ 86 ] It seems to me that clarity and simplicity are important features of communicating Charter rights. Adding explanations of the legal aid system at the beginning of the interview, when what the detainee really needs is an understanding of the right to silence and the right to immediate legal advice, may be more confusing than it is helpful. [ 87 ] It may be convenient to get the advice of legal aid over with when going through the caution and the chartering, but convenience is not really a function of effective communication. [ 88 ] Hence, even if I were to find Det.

Armstrong’s description of legal aid to be deficient at this stage of the interview, or that he should have taken the time to give an explanation to C.D.H. about what legal aid is, how it works, who is eligible, what services are covered and how one goes about applying for legal aid, I would not find either of these failings to be a violation of C.D.H.’s s. 10(

b) rights so long as Det. Armstrong’s advice concerning Brydges duty counsel was properly given. Alleged Defects [ 89 ] C.D.H. claims that “legal aid” was not properly explained to him; that he clearly expressed confusion as to what it was; and that the interview should not have proceeded until Det. Armstrong had advised him about legal aid. [ 90 ] In my view, there was no need for Det. Armstrong to discuss legal aid with C.D.H., at least at the commencement of the interview. What was essential was for Det. Armstrong to advise C.D.H. that he could contact a free legal advice service immediately.

A discussion as to what legal aid is, what it covers, who is eligible and how to access it, is of little or no benefit to a suspect who needs to be advised of the right to immediate counsel, and to make a decision as to whether to access that right. Little point would be served in engaging C.D.H. in a discussion about how he might apply for legal aid at some stage down the road.

Rather, C.D.H. needed to know he could immediately contact a lawyer of his choice; if he didn’t know one, he could look one up in the yellow pages; if he didn’t want to do that, he would be (and was) given the telephone number of a free, immediate legal advice service, and would be taken into a telephone room to do so. [ 91 ] Whether C.D.H. had an understanding of the legal aid system is not relevant; what is relevant is whether C.D.H. was given a proper explanation as to how he might access an immediate and free legal advice service. [ 92 ] I recognize that case law, including Luong , suggests that there is a dual information obligation: legal aid and duty counsel.

I have expressed my view above that where there is duty counsel and the right to immediately consult counsel of choice or free duty counsel is properly explained, it makes little sense for there to be an elaborate discussion of legal aid at this stage of the interview. Any discussion may confuse the immediate issue as to what legal services are available now to assist the detainee with the urgent question of whether he should cooperate with the police and give up his right to silence. [ 93 ] In any event, C.D.H. was told about legal aid.

The discussion that ensued, including C.D.H.’s expression of lack of knowledge about legal aid, seemed to satisfy C.D.H.. He asked no questions about it and appeared satisfied with Det. Armstrong’s further discussion about free duty counsel. [ 94 ] I reject C.D.H.’s evidence that he did not agree unequivocally to the waiver of his rights. That is not consistent with the videotaped interview. Det. Armstrong’s testimony of the sequence of events and words spoken was more accurate and I accept Det. Armstrong’s evidence that he obtained a waiver of C.D.H.’s right to seek counsel.

He also satisfied his obligations under Prosper . [ 95 ] C.D.H.’s evidence did not establish on a balance of probabilities that he did not understand his right to consult counsel in accordance with s. 10(b). His evidence was too vague on his lack of understanding, and he confirmed on cross-examination that he understood what a free lawyer was and that he understood that he could call one immediately. He also confirmed that he was shown the phone booth. His confirmation of those understandings undermines his general testimony that he was “confused” and “didn’t really understand what (Det.

Armstrong) was talking about. [ 96 ] When his evidence is viewed in the context of the interview, there was no appearance of confusion or lack of understanding. I do not doubt that he was nervous and scared. But I find that his claim of a lack of understanding of his right to immediate, free duty

counsel was not credible. [ 97 ] I find that C.D.H. was advised properly of his s. 10(

b) rights, and he was given the opportunity to consult counsel. In clear words, and on at least two occasions, Det. Armstrong advised C.D.H. of the availability of duty counsel service. The telephone number was given to C.D.H.. He was shown the phone booth and Det. Armstrong offered to take him there.

C.D.H. asked no questions about the free service, and my review of the interview video disclosed no appearance whatsoever of confusion or lack of understanding on C.D.H.’s part as to his ability to access a free legal advice service whenever he wanted. [ 98 ] An explanation of legal aid was not required, and any alleged lack of understanding of it does not invalidate or taint the informational component of the Chartering process in this case. I thus find no error in carrying out the informational obligations on Det. Armstrong. [ 99 ] Det.

Armstrong advised C.D.H. on at least two separate occasions, that even if C.D.H. did not want immediate legal advice, he could stop the interview at any time and seek legal advice then. That satisfied Prosper . That information was clearly given and again my review of the interview video disclosed no appearance whatsoever of confusion or lack of understanding on C.D.H.’s part as to his ability to access legal advice during or over the course of the interview if he wanted to do so. [ 100 ] Mr. Beresh also argues that Det.

Armstrong erred by telling C.D.H. at the beginning of the interview that he “would be charged”. Det. Armstrong quickly changed that by saying “may be charged”. C.D.H. did not ask any questions about that contradiction. It was not argued that the contradiction affected the common law voluntariness of any statements given. No issue was taken that C.D.H. had not been properly informed of the allegations against him or that he was not advised of the nature of his jeopardy. His jeopardy did not change during the interview. [ 101 ] It is not clear how Det.

Armstrong might have proceeded differently after making the inconsistent statement. The Charter and the decided cases under s. 10 do not suggest different informational or implementation obligations for someone who has been or will be arrested as opposed to someone who is merely a suspect and who might be arrested at the end of the interview or some time after that. [ 102 ] I do not find any error on Det. Armstrong’s

part in this regard which goes to the effectiveness or sufficiency of the informational component of s. 10(b). Did C.D.H. Seek to Exercise His Right to Counsel [ 103 ] There is nothing in the interview itself which could be interpreted as an actual request by C.D.H. to obtain legal advice. After some ten minutes of discussion, and signing a waiver form, C.D.H. voluntarily agreed to be interviewed without asking to speak to a lawyer or anyone else. Thus the implementation obligation on Det. Armstrong did not arise. [ 104 ] Some of the cases cited by Mr.

Beresh have implied a request in circumstances where the detainee has expressed uncertainty as to whether or when he needed legal advice. While C.D.H. did say early in the interview that he didn’t know if he needed a lawyer, that was followed by Det. Armstrong going through the waiver process. [ 105 ] I accept Det. Armstrong’s evidence that C.D.H. told him he did not want to speak to a lawyer. His evidence, although not word for word the same as the video recording, was consistent with the video recording of the interview. Det.

Armstrong’s evidence is also objectively reasonable, having regard to the video recorded interview. [ 106 ] By way of overall comment, I did not find anything objectionable about Det. Armstrong’s conduct, demeanor or words during the portion of the interview I watched and listened to. He was friendly but businesslike. He appeared to be genuine in his attempts to communicate C.D.H.’s rights to him, and to be satisfied that C.D.H. understood those rights. There was nothing in the portion of the

interview I watched and listened to, that suggests that Det. Armstrong was not alive to C.D.H.’s youth and inexperience. From viewing the video recording, I did not detect any oppression on the part of Det. Armstrong. There was certainly an imbalance of power: a senior, experienced detective vs. a nervous and scared young man. But there was nothing to suggest that Det.

Armstrong took unfair advantage of that imbalance. [ 107 ] Because C.D.H. had indicated that he wasn’t sure whether he needed a lawyer, it can be inferred, as it has been in other cases, that there was no unequivocal denial by C.D.H. of wanting to consult a lawyer, before the topic of waiver was introduced. Waiver [ 108 ] The issue of whether s. 10(

b) rights have been complied with by the police is a question of fact, not a question of

interpretation or enforceability of a written instrument. A signed waiver form may be some evidence of compliance, but it is certainly not conclusive. [ 109 ] Here, one complaint is that C.D.H. did not read the form before he signed it. He could have asked to read it; he didn’t. He could have asked that Det. Armstrong read it to him; he didn’t. He chose to sign the document without reading it. Many people make similar choices and in most circumstances they are held to the document they signed.

People who sign documents unread often do so because they are trusting that the document does no more or less than what they have been told about it. [ 110 ] There was no fine print. There is nothing in the written waiver that was not stated to C.D.H. by Det. Armstrong. The waiver is not the only evidence that Det. Armstrong complied with his s. 10(

b) obligations. The only relevance of the written waiver here is that it was obtained. The obtaining of a written waiver provided C.D.H. with a further opportunity to consider whether to seek legal advice. It gave him a further opportunity to ask for clarifications as to what his rights were, if he felt confused or unsatisfied about the information he had been given. [ 111 ] He was not forced to sign; there is no indication that he could not have taken the time to read the form if he had chosen to do so. Instead, he simply signed the form.

That to me is evidence that he himself was satisfied at the time that he understood what his rights to consult counsel, and how that might be accomplished, were. [ 112 ] From my review of the video recording, as described above, it is clear that Det. Armstrong obtained an unequivocal waiver from C.D.H. of the right to seek counsel before the interview began. A review of the entirety of this aspect of the interview, as opposed to parsing words from various parts of it, satisfies me that C.D.H. did not exercise his right to counsel, and waived it. Result [ 113 ] I find that Det. Armstrong complied with his s. 10(

b) Charter obligations to C.D.H.. More properly stated, C.D.H. has not satisfied me on a balance of probabilities that his s. 10(

b) Charter rights were violated. [ 114 ] I find that the statements given by C.D.H. to Det. Armstrong were voluntarily given, and were not taken in violation of C.D.H.’s s. 10(

b) Charter rights. It is thus unnecessary for me to consider the effects of s. 24(2). C.D.H.’s application for exclusion is dismissed. Heard on the 10 th , 11 th and 17 th days of May, 2011. Dated at the City of Edmonton, Alberta this 17 th day of June, 2011.

R.A. Graesser J.C.Q.B.A. Appearances: Carole D. Godfrey Alberta Justice for the Crown Brian A. Beresh, Q.C. Beresh Cunningham Aloneissi O’Neill Hurley for the Accused _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Mr. Justice R.A. Graesser _______________________________________________________ The accused's name was reduced to initials to comply with the publication ban.