R. v. Walters, 2011 ABQB 593

Court of Queen ’ s Bench of Alberta Citation: R. v. Walters, 2011 ABQB 593 Date: 20110929 Docket: 090950411Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Norman Washington Walters Accused Restriction on Publication: By Court Order, information that may identify the complainants may not be published, broadcast, or transmitted in any manner.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. 486.4 . _______________________________________________________ Memorandum of Decision of the Voir Dire Relating to Charter, Vienna Convention and Voluntariness Issues of the Honourable Mr. Justice R.A. Graesser _______________________________________________________

Introduction [1] Norman Washington Walters faces a six count indictment, alleging three counts of sexual assault with a weapon, one countof robbery, one count of unlawful confinement and one count of theft. [2] Mr. Walters provided a Charter notice alleging breaches of his s. 7, 10(

a) and 10(

b) rights. He claims that the statement given to Detective Andersen on August 4th, 2009 was not voluntary, and that his rights under

Article 36 of the Vienna Convention wereviolated. As a result of these violations, he seeks a stay of proceedings. Alternatively, he seeks to have his statement to Det. Andersendeclared inadmissible, and that if he is convicted, that these violations be taken into account in consideration of sentencing. [3] Mr. Walters testified on the voir dire concerning the circumstances of his arrest and detention and the questioning by Det.Andersen. [4] The starting point for this analysis is voluntariness. If the statement was not voluntarily given, it may be unnecessary toconsider many of Mr. Walters’ other arguments.

Voluntariness [5] The onus is on the Crown to prove beyond a reasonable doubt that any statement given to persons in authority was voluntary.All police officers who testified at the voir dire denied making any threats or offering any inducements to Mr. Walters. All testified thatno one else had done so in their presence. The officers who testified were the three most involved with his apprehension, the two whowere with him at the hospital and who took him to police headquarters, and Det. Andersen who ultimately questioned him. [6] Mr.

Walters testified as to his being chased, shot with rubber bullets, run down by a police car, and then beaten or kickedafter he had essentially surrendered and become compliant. He testified that at some stage during this process, someone said somethingto the effect that “you’d better talk, or this (referring to the beating) will happen again”. [7] He could not identify the speaker, but assumed it was one of the police officers who had apprehended him. He wasquestioned by Det.

Andersen more than 5 hours later at police headquarters, after he had been taken to the hospital to be treated for theinjuries sustained during his apprehension. [8] There was no suggestion that Det. Andersen offered any inducements or made any threats to Mr. Walters. By the time Mr.Walters spoke to Det. Andersen, he was far removed from the scene of the arrest, and he had been turned over to officers other than theones involved in his apprehension for over 5 hours. [9] Voluntariness is a question of fact. The Crown’s evidence rebuts any threats or inducements. The video-taped interviewshows Mr.

Walters in pain, but alert, responsive and articulate. The conversation with Det. Andersen is matter-of-fact and evensomewhat friendly in nature. It does not proceed over an inordinately long time, and Mr. Walters is not denied anything over theinterview other than a wheelchair, which does not appear from the video to be necessary, and a telephone call to Mr. Walter’s girlfriend(although Mr. Walters used his opportunity to contact a lawyer to contact his girlfriend without interference from Det. Andersen).

Mr.Walters was in the phone room for approximately 45 minutes. [10] Threats or inducements so as to render a statement involuntary must be such as to affect the accused’s operating mind. Theymay not need to be temporally connected with the interview or have been made by the interviewer, if the threats or inducements can besaid to negatively affect the accused’s operating mind during the interview itself: R. v. Oickle, (2000), 2000 SCC 38 , 147C.C.C. (3d) 321 (S.C.C.).

[ 11 ] There is nothing in Mr. Walters’ demeanour during the interview, and nothing in his evidence on voir dire , to suggest that he was speaking in fear or in hopes of some benefit. In other words, there is nothing to create doubt in the evidence led by the Crown as to the absence of threats or inducements, or to contradict the appearance of voluntariness displayed during the video-taped statement. [ 12 ] There is also no evidence or suggestion of any police trickery here. [ 13 ] As a result, I am satisfied that Mr. Walters’ will was not overborne by the police in connection with the statement given to Det.

Andersen. The Crown has satisfied me beyond a reasonable doubt that it was voluntarily given. Vienna Convention [ 14 ] Mr. Walters argues that his rights under the 1963 Vienna Convention were violated because United States consular officials were not immediately notified of his arrest on August 4, 2009. [ 15 ]

Article 36 of the Vienna Convention provides: 1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State: (

a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (

b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph; (

c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action. 2. The rights referred to in paragraph 1 of this

article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this

article are intended. [ 16 ] It was conceded by Det. Andersen, who interviewed Mr. Walters in the late afternoon of August 4, that he “missed” the Vienna Convention . He was aware that Mr. Walters was an American citizen, and that there was an outstanding arrest warrant relating to immigration matters. [ 17 ] While Mr. Walters was advised of his right to contact the U.S. consul by Ms. Linda Robinson of Canadian Border Services on August 7, even then, that advice was in connection with his arrest by Ms. Robinson on an immigration warrant for entering Canada illegally.

At no time was he specifically advised that he had a right to contact the U.S. consul in relation to the sexual assault, unlawful confinement, robbery and theft charges he faced. Those charges had no connection with the immigration matter.

[ 18 ] It is not unreasonable to assume that a foreign national facing immigration charges in Canada might expect to receive assistance from his or her embassy in relation to the immigration charges. Immigration status effects and potential deportation to the country of origin are obvious issues. That logic does not automatically transfer to the expectations of a foreign national facing criminal charges under the laws of the foreign country. [ 19 ] Ms. Robinson testified that when she spoke to Mr. Walters, he indicated that he wanted to speak to the American consul. As there is no consular office in Edmonton, Ms.

Robinson phoned the consular office in Calgary sometime after 7:30 P.M. on August 7 (a Friday). She was connected to voice mail. She heard back from the consul on August 10 (Monday) at 1:45 P.M. [ 20 ] It is clear, and was not seriously contested, that Mr. Walters was not given his Vienna Convention rights in connection with the criminal charges. A delay of more than three days, even if Ms. Robinson’s advice on August 7 might be considered to be giving Mr. Walters his rights on the criminal charges, is not notification “without delay”. No explanation was given by Det.

Andersen, other than that he hadn’t thought about it. [ 21 ] The issue is thus what consequences, if any, flow from this breach. [ 22 ] While not binding on this court, Legrand (Germany v. United States of America) , I.C.J. Reports 2001, p. 466, held that the Vienna Convention creates obligations the receiving state (country of detention) has towards the detained person in addition to obligations to the sending state (country of origin) (at para. 77).

The United States had argued in that case that the Convention created no individual rights in favour of the detained person, but only rights and obligations as between nations. [ 23 ] The Vienna Convention has had little attention in the Canadian Courts. Crown counsel referenced R. v. Van Bergen , 2000 ABCA 216 and R. v. Partak , 2001 CarswellOnt 4954 (Ont. S.C.J.) [ 24 ] In Van Bergen , the accused, a Canadian, fled the United States on facing charges in Florida. In extradition proceedings in Alberta, Mr.

Van Bergen raised the fact that when arrested in Florida, he had not been advised of the right to contact the Canadian consulate. [ 25 ] The Alberta Court of Appeal, on judicial review of the Minister of Justice’s decision to extradite Mr. Van Bergen to Florida, held that the Vienna Convention “creates an obligation between states and is not one owed to the national” (at para. 15). [ 26 ] At para. 16, the Court of Appeal quoted with approval the Minister’s decision: The purpose of

Article 36 is to ensure that foreign detainees receive equal treatment under the local criminal justice system and are not disadvantaged because they are not familiar with and do not understand the proceedings against them. In my view, in order to justify a refusal in the face of Canada’s treaty obligation to the United States, Mr. Van Bergen would need to establish serious prejudice to him in the process in the foreign state.

Such prejudice has not been established in this case. [ 27 ] The application for judicial review was dismissed. [ 28 ] In Partak , Epstein J. (as she then was) came to different conclusions. She was dealing with a U.S. citizen charged with murder. Police information did not indicate that the accused was a U.S. Citizen although the investigating officers were aware of an outstanding immigration warrant. The arresting officer did not mention the accused’s right to contact the U.S. consul when he was arrested, although he was cautioned.

[29] The accused made inculpatory statements during a video-taped interview, after the accused stated that he did not want alawyer. The statements were ruled voluntary, despite the accused’s argument that the lack of advice concerning his consular rightsaffected voluntariness. [30] Epstein J. considered Van Bergen, and agreed at para. 37 that the “purpose of consular rights is to provide support andinformation to foreign nationals concerning local law to ensure equal treatment under that law” (her words, and not the Alberta Court ofAppeal’s). [31] At para. 25, she stated that she was proceeding with her analysis on the premise that

Article 36 did create an obligation owedto the arrested person and not just to the state. [32] She continued at para. 39: “It follows that all of the utterances in dispute have the potential of being affected by the failure ofthe police to advise Mr. Partak of his consular rights.” [33] She addressed the issue on the basis of voluntariness, and following R. v. Oickle, supra, concluded that there was no evidenceof any police threats or promises. The police had been polite.

There was no evidence of any oppression, and no evidence of policetrickery. [34] There was nothing to impact the accused’s “operating mind requirement” as set out in R. v.

Whittle, (SCC),[1994] 2 S.C.R. 914 (being knowledge of what the accused is saying and that he is saying it to police officers who can use it to hisdetriment” (at para. 43)). [35] At para. 48, Epstein J. characterized the omission to advise the accused of his consular rights as “nothing more than anoversight”. [36] She held at para. 58 that matters under the Vienna Convention were not Charter or quasi-Charter applications. [37] Ultimately, she agreed with the Alberta Court of Appeal in Van Bergen that exclusion of evidence, which was a remedyavailable to the court when admission would adversely affect the fairness of the accused’s trial, would only be available in the case of anaccused who had been denied consular rights if the accused could prove “serious prejudice” to him. [38] Considering the accused’s treatment by the police, including the circumstances of the accused’s arrest, Epstein J. noted thatthe accused had not adduced any evidence that would support a finding that the failure of the police to advise him of his consular rightshad caused him any prejudice (at para. 60).

She thus admitted the statements. [39] It is certainly arguable that the statement in Van Bergen to the effect that

Article 36 of the Vienna Convention creates norights in favour of the detainee but only between nations ends the matter, at least in Alberta. [40] However, it seems to me that pronouncement was dicta. It is not clear whether the point was argued, and the Court of Appealcites no authority and provides no analysis for that conclusion. The Court of Appeal does not reference Legrand, which of course was notbinding on it, but which represented an important

interpretation of

Article 36 by the International Court of Justice. [41] Van Bergen was a judicial review case, and the relevant comment came in light of arguments that the Canadian consul inFlorida had advised Mr. Van Bergen to flee the United States, and that the Minister had failed to consider the argument that Mr. VanBergen had not been advised of his right to contact the Canadian embassy. It was not a case where a Canadian court had to consider theeffect of the failure of Canadian authorities to advise an arrested foreign nation of his or her consular rights.

[ 42 ] The issue instead was whether a Canadian should be extradited to Florida to be imprisoned on charges he had pled guilty to there after consulting with Florida counsel, and to face prosecution on other charges. [ 43 ] The Court of Appeal noted at para. 16 that the minister had indeed considered the Vienna Convention argument raised, and that the minister had found Mr. Van Bergen had failed to establish that serious prejudice had resulted to him in the process in the foreign state. [ 44 ] I confess to being troubled by the idea that

Article 36 of the Vienna Convention creates no rights in favour of the individual detainee, and no obligations by a foreign state to a Canadian detainee. I am inclined towards the views expressed by Epstein J. in Partak . If no individual rights are recognized, the Vienna Convention would be a rather meaningless treaty. [ 45 ] A diplomatic protest over one nation’s failure to adhere to its treaty obligations, or a declaratory judgment in the International Court of Justice, does little to assist someone actually facing prosecution in a foreign country.

Indeed, in Legrand , the Legrand brothers who were the subject of the litigation had already both been executed in Arizona by the time the matter was decided by the International Court of Justice. [ 46 ] It seems to me that if

Article 36 is to be given anything other than academic meaning, the approach in Legrand and Partak should be accepted and

Article 36 should be interpreted as giving the detained individual rights, and imposing obligations on the foreign state towards the individual. [ 47 ] It also seems to me that if Canada expects foreign states to comply with their

Article 36 obligations and actually promptly notify Canadians detained in foreign states of their consular rights, Canadian courts should give meaning to Canada’s treaty obligations. [ 48 ] In reviewing Van Bergen , the Court of Appeal does not seem to suggest that the Minister was wrong, unreasonable or patently unreasonable when he suggested that an

Article 36 remedy would only be available when there was “serious prejudice” to the detained person. [ 49 ] At para. 63 in Partak , Epstein J. arguably adopted that standard, although she found in that case that there had been no prejudice established. [ 50 ] Applying these cases to the case at bar, and on the same assumption as Epstein J. proceeded on, that

Article 36 does in fact create rights in favour of the detained foreign national, it is clear that a detained person must prove that some prejudice has resulted to him in the process. [ 51 ] Here, it is argued on behalf of Mr. Walters that prompt notification to the U.S. consul of his arrest might have resulted in him receiving advice that he should not speak to the police about the charges he faced, and that he should exercise his right to remain silent. [ 52 ] It is clear on the evidence on this voir dire that before Mr. Walters said anything arguably incriminating to police in Canada, Det.

Andersen (if not Constable Paton) had provided him with an appropriate caution as to his right to silence, and he had been given his rights under the Canadian Charter of Rights and Freedoms to speak to counsel, and any request to consult counsel had been facilitated. [ 53 ] That Mr. Walters did not avail himself of the opportunity to consult counsel during his 45 minutes in the telephone room at police headquarters was his choice, and he did not thereafter advise Det.

Andersen that he had not spoken to counsel, or had not been able to contact counsel. [ 54 ] There is no suggestion in Legrand or Partak or in the Vienna Convention itself that there is an obligation on the foreign state to avoid questioning a suspect before

Article 36 rights have been given. The purpose for

Article 36 described in Van Bergen is ensuring that the foreign national is treated equally to domestic detainees. Here, Mr. Walters was treated consistently with Canadian nationals and residents detained: he was cautioned and Chartered and given a reasonable opportunity to consult counsel before being questioned.

[55] If the

interpretation placed on

Article 36 in an

article dated December 7, 2003 by Paul Wolf, an American Human Rightslawyer, entitled “Vienna Convention Warnings” is to be preferred (at least as it relates to American expectations),

Article 36 is“analogous to a police officer’s duty to provide Miranda warnings to a criminal suspect in the United States” (at p. 1). Those warningsare that, before interrogation, the person be advised of his right to remain silent, that anything he says may be used against him, that hehas the right to an attorney, and that if he cannot afford an attorney, one will be provided for him. [56] Those warnings are virtually identical to the caution and Chartering provided to Mr. Walters by Det. Andersen here. [57] Speculation that if the U.S. embassy had been contacted, someone would have contacted Mr.

Walters and advised him toremain silent and that Mr. Walters would have followed that advice, is only speculation. It does not meet the burden of proof on Mr.Walters to demonstrate prejudice. Essentially, Mr. Walters has not demonstrated any prejudice to him by the breach of

Article 36 by theEdmonton Police Service. [58] As such, the requested remedies of a stay of proceedings (which was not seriously argued), or exclusion from evidence of anystatements made to police before the U.S. consul was notified of Mr. Walters’ detention on August 7 (which was seriously argued), arenot appropriate or available to Mr. Walters. [59] It is nevertheless troubling that Mr. Walters’ rights were violated. Det. Andersen excused this violation claiming oversightrather than ignorance. Neither is an acceptable response.

There is no basis to use treat this failure as being relevant to the determinationof Mr. Walters’ guilt or innocence on the charges he faces in Canada. It is open to the United States government to complain about thetreatment of its citizen in Canada. [60] Whether this breach should have any consequences in the context of sentencing, if Mr. Walters is convicted of any of thecharges he faces in these proceedings, should be considered after guilt or innocence has been determined. S. 10 Remedies [61] In support of his arguments that Mr.

Walters’ s. 10 Charter rights had been violated, and that any statements provided by Mr.Walters should therefore be suppressed from evidence, counsel referred to R. v. Therens, (1985), (SCC), 18 C.C.C. (3d)481 (S.C.C.), R. v. Borden, (1994), (SCC), 92 C.C.C. (3d) 404 (S.C.R.), R. v. Manninen, (1987), (SCC), 34 C.C.C. (3d) 385 (S.C.C.), R. v. Ross, (1989), (SCC), 46 C.C.C. (3d) 129 (S.C.C.), R. v. Evans, (1991), (SCC), 63 C.C.C. (3d) 289 (S.C.C.), R. v. Prosper, (1994), 92 C.C.C. (3d) 358 (S.C.C.) and R. v. Hebert, (1990), (SCC), 57 C.C.C. (3d) 1 (S.C.C.). [62] The Crown’s response includes reliance on R. v.

Suberu, 2009 CarswellOnt 4106 (S.C.C.), R. v. Strachan, (SCC), 1988 CarswellBC 699 (S.C.C.) and R. v. Bartle, (SCC), 1994 CarswellOnt 100 (S.C.C.) as well as the AlbertaCourt of Appeal decision in R. v. Luong, 2000 ABCA 301. [63] In my view, a determination of whether Mr. Walters’ s. 10 rights were violated or not turns on the facts of this case, and it isunnecessary to review these authorities in this decision in any detail. S. 10(a) [64] Mr. Walters argues that he was not promptly notified of the reasons for his detention. He does not dispute that when he wasinterviewed by Det.

Andersen an hour or so after his release from hospital following his arrest, Det. Andersen notified him of the reasonsfor his arrest and detention before he began questioning. That was at least 5 hours after Mr. Walters had been arrested and detained.

[ 65 ] It is also clear from the videotape of Det. Andersen’s questioning of Mr. Walters that by that time, Mr. Walters knew that he was facing three counts of sexual assault. It is not clear where Mr. Walters learned that information. But he was clearly aware of his jeopardy by then. [ 66 ] Cst. Paton testified that immediately after he assisted in the arrest of Mr. Walters, he began to advise Mr. Walters of the reasons for arrest and to caution and Charter him, but that he stopped before completion because Mr.

Walters was not paying attention and appeared to be focussing on his pain resulting from the manner of his apprehension. Cst. Paton testified, however, that he advised Mr. Walters of the reasons for detention and cautioned and Chartered him at approximately 12:30 p.m. on August 4, relying on his notebook entries. Cst. Paton was unsure whether that occurred in the ambulance on the way to the hospital, or in the emergency ward of the hospital. [ 67 ] Cst.

Paton was cross-examined vigorously on the reliability of his notes and his memory, and it was noted in argument that neither of the police officers who were with Mr. Walters and Cst. Paton in the emergency ward, nor the officer who rode in the ambulance with Mr. Walters and Cst. Paton, mentioned that Mr. Walters had been told anything by Cst. Paton. Neither of those other officers, however, testified that they had given Mr. Walters any advice as to what he was arrested for, and neither testified that they had Chartered or cautioned Mr. Walters. [ 68 ] While Mr. Walters denied that Cst.

Paton had advised him of the reasons for arrest, or had cautioned or Chartered him, he acknowledged on cross-examination that his memory of events after he had been apprehended was poor, and that it was possible that Cst. Paton had advised him of the reasons for his arrest, and then cautioned and Chartered him. He could not remember that those events had happened, however. [ 69 ] In this regard, Mr. Walters’ evidence is credible. [ 70 ] It is not surprising that Mr. Walters’ memory of the events of August 4 may not be complete. On the evidence of the police officers, Mr.

Walters had been chased, shot 5 times with rubber bullets, struck by a police vehicle, tackled, kicked into submission and then struck by the rubber bullet gun (ARWIN) when Cst. Paton was helping handcuff Mr. Walters. On Mr. Walters’ evidence, he had been chased, shot 5 times with rubber bullets and struck by a police vehicle. He had then fully complied with commands to lie down and put his hands behind his back so he could be handcuffed. He had then been kicked multiple times, including a number of kicks to the head. [ 71 ] Mr. Walters had been taken to hospital, and had received treatment.

By the time he was interviewed by Det. Anderson, many hours after his arrest, he was in obvious pain. Despite his appearance on the video as being responsive and articulate, he was clearly in some pain. [ 72 ] No explanation was offered by Mr. Walters as to where he had learned that he faced 3 charges of sexual assault before he met with Det. Andersen. In my view, it is likely that such information had been given to him by Cst. Paton. No other sources were identified in the evidence, although Mr.

Willson speculated in argument that it could have been from others. [ 73 ] Here, the onus of proving a Charter violation is on the accused person. In the face of Mr. Walters’ acknowledgment that his memory of events on August 4 was poor, and that it was possible that Cst. Paton had told him what he had been arrested for and then cautioned and Chartered him, I find that Mr. Walters has not met the burden on him. [ 74 ] To find otherwise, I would have to find that Cst. Paton falsified his notes and lied in Court.

While it is unusual that a member of the tactical team would accompany an arrested person to the hospital when other police officers had been tasked with taking custody of the subject, and while Cst. Paton’s notes and memory of what he told Mr. Walters was that he had told Mr. Walters he was being “arrested for sexual assault”, and not “three counts of sexual assault”, those factors do not satisfy me on a balance of probabilities that Cst. Paton did not do and say what he testified to. [ 75 ] I accept Cst. Paton’s evidence that it was not practical to give advice, cautions and Chartering to Mr.

Walters at the scene of the arrest. In Mr. Walters’ condition, it may have been impractical and ineffective to give advice, cautions and Chartering to Mr. Walters

in the ambulance on the way to the hospital, or immediately on arrival at the hospital. Mr. Walters was clearly advised, cautioned and Chartered by Det. Anderson at a time when the police had determined it was appropriate to question him. [ 76 ] In the interval between arrest and questioning, Mr. Walters was not questioned and nothing of a conscriptive nature was done. He was not asked to do anything. Before he was questioned, he was already aware of the reasons for his arrest and detention, independent of the questioner. [ 77 ] Breaches of Charter rights do not proceed on the premise “no harm no foul”. S. 24(2) and cases on that

section deal with remedies for breaches. [ 78 ] But here, Mr. Walters has not satisfied me that Cst. Paton did not do as he said. I am also not satisfied in the circumstances of this case and on its unique facts that these obligations were not satisfied by Det. Andersen, as it may have been ineffective to carry out these tasks before Mr. Walters had been released from the hospital and taken to the cells at police headquarters. [ 79 ] Mr. Walters’ arguments under s. 10(

a) are therefore not successful. No breach has been proven. S. 10(b) [ 80 ] There is an irony in the evaluation of Mr. Walters’ submissions here. He claims that was not advised of his right to counsel until Det. Andersen did so, many hours after his arrest and detention. He denies that Cst. Paton tried to do so in the schoolyard where the arrest took place, or at 12:30 p.m. when he was either in the ambulance or at the hospital. At least his evidence is that he does not recall Cst. Paton doing so, which was a fair answer on his part during cross-examination on the voir dire. [ 81 ] Cst.

Paton, relying on his notebook, testified that at 12:30 p.m., he advised Mr. Walters of his right to counsel, and Mr. Walters indicated that he wanted to speak to counsel when he was “ok”. It was clear to Cst. Paton that Mr. Walters wanted to exercise his right to counsel. [ 82 ] Nothing was done about that by Cst. Paton at the hospital as it was not practical to try to find Mr. Walters a telephone and privacy while he waited for treatment. In any event, Cst. Paton left within 10 minutes or so of informing Mr. Walters of his rights. [ 83 ] Nothing was done by Constables Rolfe or Brown to facilitate Mr.

Walters contacting counsel. After he was released from the hospital, he was transported by them to police headquarters, where he was put in a holding cell. He was left in the holding cell from 4:50 until 5:39 (approximately 50 minutes) before Det. Andersen began to interview him. Nothing was done during that interval to facilitate Mr. Walters contacting counsel, although there is no evidence that he asked to do so. [ 84 ] It is clear that there was no attempt to interview Mr. Walters or obtain any statement from Mr. Walters until Det. Andersen began to interview him. [ 85 ] In Mr.

Walters submissions, the delay from the time of his arrest until after 5:30 p.m. when he was informed of his rights by Det. Andersen is an unacceptable delay both as to the police’s informational and implementational obligations under s. 10(b). [ 86 ] The Crown argues that Cst. Paton was reasonable in not completing the cautioning and Chartering process on the scene of the arrest because of Mr. Walters’ demeanour at the time, and that he did so at the first reasonable opportunity - in the ambulance or at the hospital. While Mr.

Walters’ response indicated that he did want to speak to a lawyer, his request was not immediate. It was not unreasonable to wait until after Mr. Walters had been treated at the hospital and released and transported to the cells at headquarters.

[87] There, it was not unreasonable to wait until Det. Andersen was briefed and began to interview Mr. Walters. Mr. Walters wasnot insistent on speaking to a lawyer and indeed appeared to want to wait until later in the interview. He went to the telephone room moreat the insistence of Det. Andersen than because he was keen to speak to a lawyer, and even when he went to the interview room, he choseto speak to his girlfriend and apparently made no attempt to contact a lawyer. [88] In this area of the law, R. v. Luong, 2000 ABCA 301, instructs courts in Alberta.

There, at para. 12, the court gave suchguidance: [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 made out. 11.

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

not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity” (sometimes referred to as a “ Prosper warning”). R. v. Prosper , supra , at 378-79. Absent such a warning, an infringement is made out. [ 89 ] Essentially, this issue is answered by the fact that Mr. Walters has not satisfied the burden on him to prove on a balance of probabilities that his s. 10(

b) Charter rights were violated. His evidence about Cst. Paton is uncertain. He has not persuaded me that he was not given his rights by Cst. Paton. Mr. Walters bears the burden of establishing that Cst. Paton did not. On a balance of probabilities, however, it is likely that Cst. Paton did so, in the ambulance or at the hospital. It is not significant that the other officers did not hear him do so. That was not their concern. They were transporting Mr. Walters, not arresting him or investigating him. [ 90 ] As noted with the arguments under s. 10(a), it is unlikely that Cst.

Paton would falsify his notes and testimony over these points. Mr. Walters’ evidence is not an absolute denial; he is uncertain. That does not provide the level of certainty required to establish a Charter breach by Cst. Paton. [ 91 ] Assuming Cst. Paton did not do so, and the first Mr. Walters heard of his rights was from Det. Andersen, that would be a surprisingly long time from arrest. That would likely substantiate, in the circumstances here, a failure to give the necessary advice under s. 10(b). There was no reason, once Mr. Walters was calmer, for his rights not to be given to him.

However, this is answered by Mr. Walters’ failure to persuade me that Cst. Paton did not read him his rights at approximately 12:30 p.m., and by Mr. Walters’ state of mind that he was in too much pain and too banged up to have a good memory of events. It may in any case have been more appropriate to wait until Mr. Walters was at headquarters after medical treatment to focus on the legal aspects of his arrest and detention. [ 92 ] As to implementational obligations, I note that at no time did Mr. Walters ask to speak to a lawyer.

He did not make such a request or demand on arrival at headquarters; he did not object to being put in a holding cell before contacting counsel. His response to Cst. Paton was that he’d call a lawyer “when he was ok”. [ 93 ] There is no doubt here that before attempting to elicit information from Mr. Walters, he was informed of his rights and was given a reasonable opportunity to exercise that right. [ 94 ] Mr. Walters has not persuaded me that his s. 10(

b) were violated. S. 7 [ 95 ] Mr. Walters was injured during his apprehension and arrest. The issue is whether the force applied to him was unreasonable, and in violation of his right to security of the person under s. 7. [ 96 ] I do not intend to review the evidence, and make a finding on this issue at this time. I am satisfied that the circumstances of this case, the nature of the charges against Mr. Walters, and the effect of his evidence if I were to accept it and reject the evidence of the arresting officers, would not support an argument that the charges against him should be stayed as was the case in R. v.

Fryingpan , 2005 ABPC 28 . [ 97 ] Instead, if substantiated, a s. 7 breach here might support consideration of that in sentencing, should Mr. Walters be convicted of any of the offences he is charged with, under the provisions of R. v. Nasogaluak in the Alberta Court of Appeal and in the Supreme Court of Canada, 2007 ABCA 339 and 2010 SCC 6 . [ 98 ] As a result, consideration of s. 7 issues does not affect the admissibility of Mr. Walters’ statement and I think it is more appropriate to deal with these issues during the sentencing phase of this process, if there is a sentencing phase. If Mr.

Walters is not convicted, this is essentially a moot exercise here.

Conclusion and

Summary [ 99 ] Mr. Walters’ statement to Det. Andersen was voluntarily given. Its admissibility is not affected by the breach of Mr. Walters’ consular rights under the Vienna Convention . [ 100 ] Mr. Walters has not established that there were breaches of his s. 10(

a) or 10(

b) Charter rights. A violation of his s. 7 rights, if any, would not affect the admissibility of the statement given to Det. Andersen. [ 101 ] Consideration of the effect of the Vienna Convention breach and s. 7 breaches, if any, will be dealt with at any sentencing hearing in this matter, should there be one. Heard on the 15 th , 16 th & 19 th days of September, 2011. Dated at the City of Edmonton, Alberta this 28 th day of September, 2011. R.A. Graesser J.C.Q.B.A. Appearances: Julie Roy Alberta Justice for the Crown David R. Willson Law Offices of David R. Willson for the Accused