R. v. Briscoe, 2012 ABQB 111

Court of Queen ’ s Bench of Alberta Citation: R. v. Briscoe, 2012 ABQB 111 Date: 20120221 Docket: 100723519Q1 Registry: Edmonton Between: Her Majesty the Queen Crown (Respondent) - and - Michael Erin Briscoe Accused (Applicant) _______________________________________________________ Voir Dire Reasons for Judgment of the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ I. Introduction.............................................................................................................. Page: 2 II.

Background............................................................................................................ Page: 3 III. Preliminary Issue - Judicial Comity...................................................................... Page: 3 IV. Evidence................................................................................................................. Page: 6

A. Constable Brophy...................................................................................... Page: 6 B. Constable Waldorf................................................................................... Page: 10 C. Constable McCoshen.............................................................................. Page: 12 D. The Applicant........................................................................................... Page: 12 V. Issues.................................................................................................................... Page: 13 VI.

Analysis................................................................................................................. Page: 13 A. The “ Missing ” Portion of the Videotape................................................ Page: 13 B. The “ Cell Plant ” Conversations.............................................................. Page: 14 C. The Applicant ’ s Charter s. 10(

b) Rights ............................................... Page: 15 1. Introduction................................................................................... Page: 15 2. The Initial Consultation with Counsel......................................... Page: 15 3. Alleged Breach of the Applicant ’ s Charter s. 10(

b) Rights..... Page: 18 a. R. v. Sinclair , 2010 SCC 35 , [2010] 2 S.C.R. 310 ..... Page: 19 b. R. v. McCrimmon , 2010 SCC 36 , [2010] 2 S.C.R. 402 Page: 20 c. R. v. Willier , 2010 SCC 37 , [2010] 2 S.C.R. 429 ....... Page: 22 4. Application and Relevance of the Counsel Trilogy................... Page: 24 a. Non-Routine Procedures................................................ Page: 27 b. A Change in Jeopardy.................................................... Page: 28 c. The Applicant ’ s Understanding His Charter s. 10(

b) Rights Page: 30 5. Application of the General Counsel Trilogy Principles............ Page: 31 6. Conclusion on the Charter s. 10(

b) Issue.................................. Page: 33 D. Charter s. 24(2)........................................................................................ Page: 33 VII. Conclusion............................................................................................................ Page: 39 I. Introduction [ 1 ] On May 31, 2010, the Crown charged Michael Erin Briscoe [the “Applicant”] by direct indictment with the following four offences under the Criminal Code , R.S.C. 1985, c.

C-46 [“ Criminal Code ”]: 1. first degree murder of Ellie-May Meyer [“Meyer”], pursuant to Criminal Code s. 235(1); 2. first degree murder of Nina Louise Courtepatte [“Courtepatte”], pursuant to Criminal Code s. 235(1);

3. aggravated sexual assault of Courtepatte, pursuant to Criminal Code s. 273(2)(b); and 4. kidnapping of Courtepatte, pursuant to Criminal Code , s. 279. [ 2 ] The Applicant’s trial on these charges is scheduled to begin in February of 2012. [ 3 ] By way of a pre-trial application, the Applicant seeks an order excluding certain statements he made to members of the Royal Canadian Mounted Police [“RCMP”] when they interviewed him on April 11, 2005, and on April 12, 2005. The Crown will seek to introduce the Applicant’s statements into its evidence during the Applicant’s trial.

At the time he provided these statements to the RCMP officers, the RCMP had arrested the Applicant as part of its investigation into Courtepatte’s murder. The statements occurred while the Applicant was detained at the RCMP detachment in Stony Plain, Alberta. II. Background [ 4 ] Although the background of this matter has little effect on the outcome of this pre-trial motion and the trial over which this Court will be presiding, the Applicant has asked this Court to consider certain matters that arose at a previous trial of the Applicant.

As a result, this Court intends to provide a skeletal background of these earlier proceedings in which the Applicant was involved. [ 5 ] The Applicant was prosecuted on four charges, including a count of first degree murder, arising from Courtepatte’s death. The Crown had not yet charged the Applicant in relation to Meyer’s death. In R. v. Briscoe , 2007 ABQB 196 , 413 A.R. 53, Justice Burrows acquitted the Applicant. Subsequently, the Crown successfully appealed that acquittal. In R. v.

Briscoe , 2008 ABCA 327 , 437 A.R. 301, the Alberta Court of Appeal directed that the Applicant’s acquittals be set aside and ordered that the Applicant be retried on all counts. The Supreme Court of Canada affirmed the Alberta Court of Appeal’s decision in R. v. Briscoe , 2010 SCC 13 , [2010] 1 S.C.R. 411. The application before this Court is part of the Applicant’s retrial as ordered by the Supreme Court of Canada. III.

Preliminary Issue - Judicial Comity [ 6 ] Justice Burrows, by way of a pre-trial motion in the initial trial of this matter, considered the same issues that are before this Court, viz. , whether to exclude certain statements that the Applicant made to the RCMP on April 11, 2005, and April 12, 2005. In R. v. Briscoe , 2007 ABQB 48 , 413 A.R. 29 [the “Burrows Voir Dire Decision”], Justice Burrows dismissed the Applicant’s arguments concerning the common law “voluntariness” issues surrounding his statements.

As well, with one exception, Justice Burrows dismissed the Applicant’s arguments concerning the RCMP’s alleged breach of his rights under the Canadian Charter of Rights and Freedoms ,

Part 1, Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [the “ Charter ”]. The statement that Justice Burrows excluded from the trial evidence was part of Cst. Patrick Waldorf’s interview of the Applicant that Cst. Waldorf conducted on April 12, 2005, from approximately 10:24 to 11:10 hours. Cst.

Waldorf is now a staff sergeant, but this Court will take the liberty of referring to him in his capacity at the time of the events in question. [ 7 ] While the Crown appealed Justice Burrows’s 2007 trial acquittal, it did not allege that the Burrows Voir Dire Decision was incorrect for its exclusion of one of the Applicant’s statements.

As a consequence there has not been any appellate review or comment on the Burrows Voir Dire Decision. [ 8 ] The Applicant argues that this Court should give the Burrows Voir Dire Decision significant weight in the present proceedings, based on “judicial comity.” He argues that this Court could diverge from the Burrows Voir Dire Decision if this Court is satisfied that:

(

a) it has received evidence that is markedly different from the evidence that the parties presented to Justice Burrows, such that hewould likely not have made the same decision had he received the same evidence; or (

b) the law has changed in some significant way between the Burrows Voir Dire Decision and the present time, such that theBurrows Voir Dire Decision and its reasons are no longer correct. The first aspect should not be an issue unless, during the voir dire before this Court, it hears evidence different from that which JusticeBurrows received, provided the evidence is relevant and material to the issue before it. [9] The Crown agrees with the Applicant that this Court should give the Burrows Voir Dire Decision significant weight in thepresent proceedings.

It argues, however, that the law supporting the Burrows Voir Dire Decision has undergone significant changes. [10] The Applicant provides this Court with Justice Thomas’s decision in R. v. Perreault, 2010 ABQB 714 at paras. 127-37, 497A.R. 168 in support of his argument that, based on judicial comity, this Court should give the Burrows Voir Dire Decision significantweight. In fact, Justice Thomas did not rule on the issue of whether he should grant comity to a judge of the same court. Rather, hespecifically chose not to address the issue (at para. 138).

He did comment on judicial comity and provided the “often cited rule” fromHansard Spruce Mills Ltd. (Re), (BC SC), [1954] 4 D.L.R. 590 at 592, 34 C.B.R. 202 (B.C.S.C.) where the court said: ... I will only go against a judgment of another judge of this Court if: (

a) Subsequent decisions have affected the validity of the impugned judgment; (

b) It is demonstrated that some binding authority in case law or some relevant statute was not considered; (

c) The judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial judges, where the exigencies ofthe trial require an immediate decision without opportunity to fully consult authority.

As one can see from the “often cited rule,” the court did not say that the law had to have changed in some “significant way.” It simplysaid that “[s]ubsequent decisions have affected the validity of the impugned judgment.” This is a lower standard. [11] Justice Thomas said that judicial comity is “essentially a rule of practice developed in a court between judges who are peers”(at para. 135) and that it is a “collegial approach to how the decisions of its judges should be approached by their peers” (at para. 137). [12] R. v. Perreault relates to judicial comity in the Alberta Provincial Court.

Earlier the same year Justice Thomas in Searles v.Alberta (Health and Wellness); Searles v. Alberta (Minister of Health and Wellness), 2010 ABQB 157 at paras. 22-24, 485 A.R. 166,affd 2011 ABCA 144, 502 A.R. 198, applied the Hansard Spruce Mills approach to an Alberta Court of Queen’s Bench matter. [13] In R. v. Sipes, 2009 BCSC 285 the court described judicial comity as follows: [10] The approach advocated in Re Hansard Spruce Mills is not a rule of law; rather, it is a wise and prudent prescription for theexercise of judicial discretion.

It will almost always be in the interests of justice for a judge to follow the decision of another judge of thesame court on a question of law. Consistency, certainty, and judicial comity are all sound reasons why this is so. It is for the Court ofAppeal to decide whether a judge of this Court has erred, not another judge of the Court.

[11] In my view, both the rule in Re Hansard Spruce Mills and the exceptions to it are based on common sense and a consideration ofthe interests of justice. At all times, the application of the rule should advance the interests of justice, not undermine them.

It is for thisreason that I am also of the view that the determination as to whether to follow a decision of another judge of the same court should notbegin and end with a rote application of Re Hansard Spruce Mills; instead, that determination should also be informed by all relevantfactors that bear upon whether it is in the best interests of justice in the context of the particular case at hand to do so. ... [14] This Court agrees with the approach, as stated in Sipes. It must have a principled reason for abiding by, or departing from, ajudge of the same court. It must not do so blindly.

Thus, whether this Court chooses to exercise judicial comity when it considers theBurrows Voir Dire Decision, it still must look at all relevant factors, including changes to the law caused by subsequent decisions orlegislation, to determine whether it will deviate from that decision, or arrive at the same conclusion. [15] As well, it is a well-established principle of law that a court applies the law, in a criminal as well as a civil context, based onthe most recent binding court authority. For example, in Fullowka v.

Pinkerton’s of Canada Ltd., 2010 SCC 5 at paras. 93-94, [2010] 1S.C.R. 132, the court applied the causation scheme that was indicated by a binding decision issued subsequent to the original trial. Seealso R. v. Ilesic, 2000 ABCA 254 at paras. 9-11; British Columbia v. Henfrey Samson Belair Ltd., (SCC), [1989] 2S.C.R. 24; Crane v. Brentridge Ford Sales Ltd., 2008 ABCA 216 at para. 11; R. v. Tkachuk, 2001 ABCA 66. In that sense, JusticeBurrows’s conclusion in the Burrows Voir Dire Decision was not necessarily incorrect given the state of the law at the time he issuedthat decision.

However, subsequent developments in the law may require this Court to arrive at a different conclusion. IV. Evidence [16] A number of RCMP officers provided this Court with testimony concerning the issues before this Court. A. Constable Brophy [17] Cst. Kelly Brophy was the officer who arrested the Applicant on April 11, 2005. He arrested the Applicant at the motel roomin which the Applicant was living at the time. The arrest took place at 11:37 hours. When Cst. Brophy arrested the Applicant, theApplicant appeared to Cst. Brophy to be surprised, but not agitated.

The Applicant was not belligerent and cooperated fully with Cst.Brophy’s commands. Cst. Brophy advised the Applicant that he was arresting the Applicant for murder, but he did not say the name ofthe victim. [18] Cst. Brophy handcuffed the Applicant and checked the Applicant for any weapons. He then allowed the Applicant to dress.Cst. Brophy then escorted the Applicant to the unmarked police cruiser Cst. Brophy was driving. Once they were in the police cruiser,Cst. Brophy outlined for the Applicant the Applicant’s Charter rights from a card that Cst. Brophy carried. Cst.

Brophy read into therecord the text on that card, which included a detained person’s right to counsel and the right to remain silent. When Cst. Brophy askedthe Applicant whether he understood his rights, the Applicant responded in the affirmative. The Applicant specifically stated that hewanted to contact a lawyer. During this time, Cst. Waldorf joined the Applicant and Cst. Brophy in the police cruiser. Cst. Brophy alsotestified that after he read what was on the card, he would repeat the detained person’s Charter rights and caution in plain language.

Thiswas his normal practice, especially if he was concerned that the detained person had not understood what was happening. He testifiedthat, in this case, the Applicant understood both the explanation from the card, as well as his plain language explanation. [19] Cst. Brophy, Cst. Waldorf and the Applicant left the motel at 11:50 hours and headed to the Stony Plain RCMP detachment.Neither Cst. Brophy nor Cst. Waldorf had any discussion with the Applicant while they were in the police cruiser.

At 12:10 hours, Cst.Brophy completed the booking procedure and placed the Applicant in a cell at 12:22 hours to wait for a telephone room to becomeavailable, so the Applicant could contact counsel. [20] A telephone room became available at 12:49 hours. Cst. Brophy took the Applicant to the telephone room and reminded theApplicant that he was under arrest for murder. Cst. Brophy asked the Applicant with whom he wished to speak and the Applicantresponded that he wanted to call Mr. Bruce Lennon. Cst. Brophy called operator assistance to obtain Mr. Lennon’s telephone number,then dialed it for the Applicant. Cst.

Brophy testified that he dialed Mr. Lennon’s telephone number, as he wanted to make sure that theApplicant was going to speak with a lawyer. Mr. Lennon’s office was closed.

[ 21 ] As there was no answer, Cst. Brophy then asked the Applicant whether he wanted to speak with another lawyer. The Applicant chose to speak with Mr. Michele Fontaine, whom the Applicant selected from the Legal Aid list. Again, Cst. Brophy dialed the telephone number and reached Mr. Fontaine’s secretary, who gave Cst. Brophy Mr. Fontaine’s cellular telephone number. Cst. Brophy dialed that number and reached Mr. Fontaine, who identified himself. Cst. Brophy gave the telephone to the Applicant and then, to give the Applicant privacy, Cst. Brophy left the Applicant alone in the telephone room. Cst.

Brophy shut the telephone room door. All this occurred at 12:57 hours. [ 22 ] The telephone room had a steel door, with a glass window and a slider on the window. It was a small room, which had telephone books and the Legal Aid number pasted on the wall. Cst. Brophy moved down the hall to a guard desk and completed his notes as to what had transpired during that morning. He was about 20 feet from telephone room. As was his practice, he asked the Applicant to knock on the telephone room door when the Applicant had completed his call. After about three minutes, the Applicant said he was done. When Cst.

Brophy asked the Applicant whether he was satisfied with the advice he had received from Mr. Fontaine, the Applicant responded in the affirmative. He told Cst. Brophy that Mr. Fontaine had told him to say nothing. The Applicant did not say that he wanted to speak with other counsel, nor did the Applicant again say he wanted to speak with Mr. Lennon. [ 23 ] Cst. Brophy then returned the Applicant to the cells and locked the Applicant in a cell at 13:01 hours. Cst. Brophy went back to his desk to prepare for a number of interviews, including the interview he was going to conduct on the Applicant that afternoon.

During the period from 13:01 hours to 14:57 hours, Cst. Brophy had no contact with the Applicant. The Applicant remained in his cell. [ 24 ] At 14:57 hours, Cst. Brophy removed the Applicant from his cell for an interview. Cst. Brophy took the Applicant to a secure interview room that was monitored by audio and video. He had no other discussion with the Applicant before taking him to the interview room. Cst. Waldorf monitored the interview. The videotape of Cst. Brophy’s interview with the Applicant that this Court observed commenced at 14:57 hours. The interview continued until 18:56 hours. [ 25 ] Cst.

Brophy took two breaks, which allowed the Applicant to use the washroom facilities. These breaks also gave Cst. Brophy time to meet with his colleagues to ensure that he was obtaining the information necessary to continue with the investigation. During each break, Cst. Brophy returned the Applicant to his cell. They did not communicate with each other while outside the interview room. [ 26 ] Although Cst. Brophy thought that he had completed the interview for the day, the Applicant asked to see Cst. Brophy again at 19:45 hours. Cst.

Brophy did not obtain any further information from the Applicant between 18:56 and 19:45 hours. The Applicant wanted to discuss his safety with Cst. Brophy. After this brief discussion, at 19:52 hours, Cst. Brophy took the Applicant back to the telephone room, as the Applicant asked if he could try to reach Mr. Lennon. Again, they were not able to reach Mr. Lennon, so Cst. Brophy took the Applicant back to his cell. The Applicant used the same telephone number they had used previously to try to contact Mr. Lennon. Cst.

Brophy received no information from the Applicant as to whether the Applicant left a message for Mr. Lennon. [ 27 ] At no time did Cst. Brophy and the Applicant discuss whether Mr. Lennon was the Applicant’s lawyer. The Applicant did not indicate that was the case. Cst. Brophy was under the impression that Mr. Lennon’s name was the only lawyer’s name the Applicant knew. The Applicant did not ask to speak with other counsel. [ 28 ] Cst. Brophy arrived at the RCMP detachment on the morning of April 12, 2005, and began preparing for his daily tasks, which did not include speaking with the Applicant.

At 8:57 hours, the Applicant asked to speak with Cst. Brophy. Cst. Brophy took the Applicant into the interview room, which was audio and videotaped. The videotape that this Court viewed did not start immediately at the beginning of the interview. Cst. Brophy could not explain why the beginning of the videotape recording was missing. He testified during cross-examination that the missing portion would have been about one-minute long and during that time he would have been talking “about 99% of that time.” Cst.

Brophy conceded that he might have insulted the Applicant during that unrecorded period but, he testified that he did not threaten the Applicant, make any promises, or provide any inducements to the Applicant in exchange for evidence. Cst. Brophy was adamant in this regard. [ 29 ] Viewing the videotape of this interview, it is clear that Cst. Brophy adopted a more aggressive tack, and he confirmed this in his testimony before this Court. This tack was evident on the videotape, but Cst. Brophy’s approach was simply to raise his voice, which he did for virtually the whole interview.

He did not yell at the Applicant, pace around the room, or bang on the table. He just spoke with a louder voice and said, for example:

Cst. Brophy: ... So you wanna talk to me right now. Let’s go. Let’s have it. Let’s have what you never told me last night. The stuff that you left out, get started. Let’s have it. Cst. Brophy: ... Now smarten up and start tellin’ me exactly what happened, and stop beating around the bush. Cst. Brophy: Look, I’m not here to, to make conversation. I don’t have time for this. I got a lot more stuff to be doing than sitting here, listening to you talkin’ in circles. Now if you got somethin’ to say, spit it out.

Transcript of the Applicant's Statements, April 12, 2005, p. 2, ll. 9-10; p. 2, ll. 18-19, p. 8, ll. 191-93. Cst. Brophy felt that the information that the Applicant was providing to him lacked detail, and that the Applicant was being evasive. Cst. Brophy testified he felt that the best way to get this information from the Applicant was to adopt this aggressive approach. [ 30 ] This interview ended 24 minutes later at 9:21 hours. Cst. Brophy returned the Applicant to his cell. As the interview ended, the following exchange took place between Cst. Brophy and the Applicant: Applicant: . . .

I want to make a phone call to my lawyer, I never got a chance to do that. Cst. Brophy: Yeah, this morning you can call your lawyer again. You called your lawyer yesterday. Applicant: I didn’t have, my lawyer’s not that person. . . . Transcript of the Applicant's Statements, April 12, 2005, p. 13, ll. 369-72, p. 14, l.1 [ 31 ] Cst. Brophy spoke briefly with Cst. Waldorf, who was the next RCMP officer to interview the Applicant. They decided that Cst. Waldorf would attempt to build a rapport with the Applicant. Cst. Brophy took the Applicant back to the interview room at 10:24 hours to meet with Cst.

Waldorf. [ 32 ] Cst. Brophy again had contact with the Applicant at 11:27 hours, when the Applicant said that he wanted to call a lawyer to deal with his judicial interim release application. The Applicant specifically wanted to call Mr. Lennon. Cst. Brophy assisted the Applicant in dialing Mr. Lennon’s telephone number. Mr. Lennon was in court, so Cst. Brophy left a message, asking Mr. Lennon to return the call on Cst. Brophy’s cellular telephone. Mr. Lennon called Cst. Brophy at 14:10 hours. Cst. Brophy retrieved the Applicant from his cell, placed him in the telephone room and left the Applicant alone with Mr.

Lennon to complete his call. B. Constable Waldorf [ 33 ] Cst. Waldorf was Cst. Brophy’s partner at the time Cst. Brophy arrested the Applicant. By the time Cst. Waldorf had returned to the police cruiser immediately following the Applicant’s arrest, Cst. Brophy was in the driver’s seat, and the Applicant was in the rear of police cruiser. Cst. Waldorf heard Cst. Brophy reading to the Applicant the “ Charter and caution.” The Applicant responded in the affirmative concerning his understanding the reason for his arrest, his Charter rights and the caution.

While they were driving to the Stony Plain RCMP detachment, Cst. Waldorf heard the Applicant making various utterances concerning his work and his back ailment. These were not in response to any questions posed by either Cst. Brophy or Cst. Waldorf. In fact, Cst. Waldorf testified that it is his practice to “not engage the suspect” during this period, as nothing is recorded, and he must allow the detainee to first call a lawyer, if the detainee has so requested.

[ 34 ] Once they arrived at the Stony Plain RCMP detachment, Cst. Brophy exited the vehicle. While the Applicant and Cst. Waldorf were in the vehicle, the Applicant continued his utterances, but none were in response to any questions or comments that Cst. Waldorf made to the Applicant. Once the Applicant was removed from the police cruiser, Cst. Waldorf conducted a pat-down search of the Applicant. Cst. Waldorf also provided testimony concerning the booking procedure and the implementation phase of the Applicant’s right to counsel, which does not differ from that which Cst. Brophy provided. [ 35 ] Cst.

Waldorf monitored Cst. Brophy’s April 11, 2005 interview of the Applicant. The only portions that Cst. Waldorf did not monitor were those when he took breaks to use the washroom facilities. [ 36 ] Cst. Waldorf interviewed the Applicant on the morning of April 12, 2005, following his interview of another accused, Stephanie Bird. The interview started at 10:24 hours. Immediately before that, Cst Waldorf had heard that the rapport between Cst. Brophy and the Applicant had broken down and that the Applicant wanted to speak with a different officer. He had no discussion with the Applicant before the interview began.

Cst. Waldorf’s interview with the Applicant began as follows: Cst. Waldorf: You remember me from yesterday, right? I’m Pat. Applicant: I’m scared shitless, man. Cst. Waldorf: You are? Applicant: Yes. Cst. Waldorf: I understand. I understand totally what you’re saying. I also understand you were talkin’ to another guy, and you don’t wanna talk to him anymore. Applicant: He doesn’t, he’s not. I don’t know what. Cst. Waldorf: What’s the, what’s the problem there? What’s? Applicant: He’s, he’s being so fuckin’, and I can’t think straight. Cst. Waldorf: Okay.

Applicant: And he said he was gonna keep me and my friend safe right, if I, if I helped out or whatever, and. Cst. Waldorf: Okay. Well, I don’t know anything about that. But listen now, and I know, I understand you’re talkin’ about you wanna call a lawyer, okay? My understanding from being around here yesterday, you, you spoke to somebody already, right? Applicant: Right. Cst. Waldorf: Okay.

Applicant: Thirty seconds, but that wasn’t my lawyer. Cst. Waldorf: Okay. It was a lawyer, I understand though eh, it was a lawyer, right? Applicant: Yeah. Cst. Waldorf: Good enough. Okay. Listen. I just wanna cover off a few things here with you, okay? Applicant: Okay. Transcript of the Applicant's Statements, April 12, 2005, p. 14, ll. 388-99, p. 15, ll. 400-411 [ 37 ] The friend who the Applicant referenced is a co-accused Stephanie Bird. [ 38 ] The Applicant did not ask for, and was not given an opportunity to contact counsel at any time during Cst. Waldorf’s interview of him. C.

Constable McCoshen [ 39 ] Cst. Leonard McCoshen, as he then was (he is now a corporal, but this Court will take the liberty of referring to him in his capacity at the time of the events before this Court), was an undercover police officer at the time the Applicant was arrested. He was placed in the cell with the Applicant as a “cell plant.” He was contacted to attend at the Stony Plain RCMP detachment and, soon after he arrived, he was placed in the Applicant’s cell. He testified that there was no time to obtain a judicial authorization to record his conversations with the Applicant. [ 40 ] Cst.

McCoshen testified that his training did not allow him to elicit information from a detained person on the topic under investigation. Cst. McCoshen used the term “passive investigation,” in which he would listen to the detainee’s words and statements. Cst. Robert Teufel confirmed this methodology. Cst. Teufel’s confirmation is contained on page 157, lines 35-40, of a transcript of Cst. Teufel’s evidence that he presented to Justice Burrows during the Applicant’s first trial. The transcript of Cst.

Teufel’s evidence is attached to an agreed statement of facts that the parties provided to this Court dated December 4, 2011. [ 41 ] After Cst. McCoshen’s “release,” he would write notes reflecting his conversations with the detainee. [ 42 ] Cst. McCoshen provided this Court with a

summary of the conversations he had with the Applicant, most of which is not relevant to this application. He did, however, testify that the Applicant denied that he murdered Courtepatte, and that throughout the ordeal, he was concerned with his safety and that of his girlfriend, Ms. Bird. [ 43 ] For the purposes of this application, the Applicant told Cst. McCoshen at 9:34 hours on April 12, 2005, that he wanted to call his lawyer, as he was concerned that a lawyer would not be present at his first appearance and he would not be able to get bail. It was Cst.

McCoshen’s belief, at that time, that the Applicant had spoken to a lawyer and had understood his constitutional rights, but the Applicant was concerned which lawyer would be attending his bail hearing. [ 44 ] The Applicant also told Cst. McCoshen that if the Crown offered him a short sentence, he would take it. Later, the Applicant retracted that statement and said that he would wait and fight it out in court.

D. The Applicant [45] The Applicant did not testify at the voir dire. That means this Court has no evidence that he subjectively felt threatened duringany of his interviews. V. Issues [46] The Applicant raises three issues: A. whether the Applicant’s statements following the “missing” portion of the videotape were voluntary; B. whether the fact that there was no recording and, thus, no transcript of Cst. McCoshen’s conversations with the Applicant, resultsin unfairness to the Applicant; and C. whether Cst. Brophy or Cst. Waldorf, or both of them, breached the Applicant’s Charter s. 10(

b) rights by not allowing him tocontact his counsel of choice immediately following Cst. Brophy’s interview with him on April 12, 2005, and preceding his interviewwith Cst. Waldorf. VI. Analysis A. The “Missing” Portion of the Videotape [47] On the morning of April 12, 2005, Cst. Brophy had no intention of interviewing the Applicant. The Applicant, however, askedto see Cst. Brophy, so Cst. Brophy agreed to meet with the Applicant. This meeting was audio and video recorded. Cst.

Brophy testifiedthat he chose to take a more aggressive approach with the Applicant. [48] There is no doubt that the Crown must show that the Applicant made his statements voluntarily: R. v. Oickle, 2000 SCC 38 atpara. 30, [2000] 2 S.C.R. 3. He must not have made his statements as a result of the RCMP threatening him, or providing him withinappropriate promises or inducements: Oickle, at paras. 48-57. [49] Furthermore, it is clear that this Court’s inquiry as to whether the Applicant provided his statements to Cst.

Brophy iscontextual and this Court must consider all of the relevant circumstances that touch on the issue of whether the Applicant provided his statements to Cst. Brophy voluntarily: Oickle at para. 47; R. v. Moore-McFarlane (2001), (ON CA), 47 C.R. (5th)203 at para. 64, 56 O.R. (3d) 737 (Ont. C.A.). If the RCMP provides this Court with an unreliable record, such as where it fails tovideotape an interview, when such facilities are available, the non-recorded interrogation may be “suspect”: Moore-McFarlane at para.65; R. v. Ahmed (2002), (ON CA), 166 O.A.C. 254, 170 C.C.C. (3d) 27 (Ont. C.A.).

In such a case, this Court mustdetermine whether Cst. Brophy’s testimony is a sufficient substitute for the videotaped recording, such that it will satisfy the Crown’sonus: Moore-McFarlane at para. 65. [50] This Court finds that the Applicant made none of his statements to Cst. Brophy as a result of any threats, promises orinducements. To this extent, this Court agrees with the Burrows Voir Dire Decision. There are a number of things to note concerning the

“missing” portion of the videotape: 1. It was the Applicant who asked to see Cst. Brophy. Cst. Brophy had no intention of visiting with the Applicant that day (except, perhaps, to deal with the Applicant’s judicial interim release, although that is not clear). 2. When the videotape started, after the “missing” portion, there is nothing which indicates that the Applicant was intimidated (which might indicate that Cst. Brophy threatened him), or enthusiastic about responding to Cst. Brophy’s inquiries (which might indicate that Cst. Brophy provided the Applicant with an inducement or other promise).

In fact, the Applicant’s affect changed little from the day before. He provided little in the way of information that clarified or bolstered the information he provided to Cst. Brophy on April 11, 2005, despite Cst. Brophy’s “more aggressive” approach. [ 51 ] This Court has no doubt that the statements the Applicant made to Cst. Brophy on the morning of April 12, 2005, were voluntary. Cst. Brophy was a forthright and credible witness. For example, he readily admitted that he might have insulted the Applicant during the “missing” portion of the videotape. Thus, this Court accepts Cst.

Brophy’s testimony in its entirety that he did not threaten the Applicant, or make to the Applicant any promises, or provide the Applicant with any inducements. As well, it accepts Cst. Brophy’s testimony that the “missing” portion of the videotape involved a very short period, in which he did most of the talking. As a result, this Court agrees with the conclusions that Justice Burrows reached in the Burrows Voir Dire Decision. B. The “Cell Plant ” Conversations [ 52 ] When this Court inquired of the Crown on its intended use for Cst.

McCoshen’s testimony, the Crown responded that it would not directly use that testimony in the trial proper. Rather, Cst. McCoshen’s testimony was advanced only for cross-examination purposes. Thus, it is premature for this Court to rule on the admissibility of the “cell plant” conversations. [ 53 ] However, for the purposes of assisting counsel on how this Court might approach the issue of whether it would permit the Crown to use Cst. McCoshen’s testimony, this Court sees no unfairness in permitting the Crown to enter this testimony into the trial proper.

The extent to which this testimony is of use to this Court will be a question of the weight it places on Cst. McCoshen’s testimony: • Is the testimony reliable? • Does the testimony have any probative value to this Court’s determination of an issue it will face in the trial proper? • To what extent is Cst. McCoshen’s testimony prejudicial to the Applicant, as against its probative value? [4] Like many of the issues that this Court faces in this pre-trial application, this Court must respond to these questions by taking a contextual approach. As stated in the head note of R. v.

Harrer , 1995 CarswellBC 651 (S.C.C.) , which accurately summarizes the majority’s decision: If the admission of crucial evidence, such as the out-of-court self-incriminatory statement, would violate the principles of fundamental justice, the trial would not be fair. The concepts of "fairness" and "principles of fundamental justice" vary with the context in which they are invoked. There is a delicate balance in accommodating the interests of the individual and those of the state in providing a fair and workable system of justice. [5] In the result, this Court would admit Cst.

McCoshen’s testimony, but will determine the weight it places on that testimony if it is required so to do. C. The Applicant ’s Charter s. 10(

b) Rights

1. Introduction [6] Charter 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; and 2. The Initial Consultation with Counsel [7] When Cst. Brophy arrested the Applicant, he advised the Applicant of his right to counsel. This Court finds that theApplicant stated that he wanted to contact counsel immediately on being advised of this right. Neither Cst. Brophy nor any of the othermembers of the RCMP had any discussions with the Applicant from the time of his arrest until the Applicant arrived at the Stony PlainRCMP detachment. During this time, the Applicant made unprompted utterances.

Immediately on their arrival, and after the Applicantwas processed, Cst. Brophy took the Applicant to the telephone room. Although the Applicant, with Cst. Brophy’s assistance, was unableto contact Mr. Lennon, the Applicant spoke to Mr. Fontaine. He did so in private. [8] In R. v. Bartle, (SCC), [1994] 3 S.C.R. 173 at 192, 118 D.L.R. (4th) 83 the court said: This court has said on numerous previous occasions that s. 10(

b) of the Charter imposes the following duties on state authorities whoarrest or detain a person: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aidand duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right(except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger). (See also R. v.

Manninen, [ (SCC), [1987] 1 S.C.R. 1233, 41 D.L.R. (4th) 301] at pp. 1241-42, R. v. Evans, (SCC), [1991] 1 S.C.R. 869 at 890 and R. v. Brydges [ (SCC), [1990] 1 S.C.R. 190, 103 N.R. 282] at pp. 203-4.) Thefirst duty is known as an informational duty. The second and third duties are known as implementation duties, and are not triggeredunless and until a detainee indicates a desire to exercise their right to counsel. [9] Justice Berger in R. v. Luong, 2000 ABCA 301, 271 A.R. 368 at para. 12, provides a consolidated restatement of the natureand obligations that result from Charter s. 10(b): 1.

The onus is upon the person asserting a violation of his or her Charter right to establish that the right as guaranteed by theCharter has been 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 theexistence and availability 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 urgentand dangerous 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 whetherthe detainee, who has invoked the right to counsel, has been reasonably diligent in exercising it; the detainee has the burden ofestablishing that he was reasonably diligent in the exercise of his rights. R. v. Smith, (1989), (SCC), 50 C.C.C. (3d) 308(S.C.C.) at 315-16 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), 37 C.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 reasonableopportunity to exercise it), if the detainee indicates that he or she has changed his or her mind and no longer wants legal advice, theCrown is required to prove a valid waiver of the right to counsel.

In such a case, state authorities have an additional informationalobligation to "tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of thepolice during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he orshe has had that reasonable opportunity" (sometimes referred to as a "Prosper warning"). R. v. Prosper, supra, at 378-79. Absent such awarning, an infringement is made out. [10] This Court finds that Cst. Brophy complied with the Bartle exhortation. Cst.

Brophy did not breach the Applicant’s Charterrights in this regard. In fact, Cst. Brophy went further. Following the second part of the first interview with the Applicant, at 19:52 hourson April 11, 2005, the Applicant asked if he could try and reach Mr. Lennon. Cst. Brophy complied immediately with the Applicant’srequest. [11] The Applicant conceded during argument that he has no issue with the steps that Cst. Brophy took on April 11, 2005. In otherwords, he does not allege that the RCMP breached his Charter s. 10(

b) rights or the voluntariness of any of his statements that heprovided to Cst. Brophy on that day.

3. Alleged Breach of the Applicant ’s Charter s. 10(

b) Rights [12] The parties spent the majority of their time arguing the issue of whether Cst. Brophy and, later, Cst. Waldorf, breached the Applicant’s Charter s. 10(

b) rights. [13] In the Burrows Voir Dire Decision, Justice Burrows provided the exchange between Cst. Waldorf and the Applicant, set forth above. He then concluded: 44 ... [I]t is clear in the excerpt just set out that Mr. Briscoe wanted an opportunity to speak to a lawyer. For the first time he indicated dissatisfaction with the contact he had had with a lawyer the previous day. Constable Waldorf said his conversation with a lawyer the previous day was "good enough". Though he did not expressly state that Mr.

Briscoe would not be allowed to contact a lawyer, he went on to question him and in fact, did not honour Mr. Briscoe's clear request. 45 In my view this was a violation of Mr. Briscoe's right to counsel. [14] It is at this point that this Court must consider whether Hansard Spruce Mills applies such that it “will only go against a judgment of another judge of this Court” on the basis that “subsequent decisions have affected the validity of [the Burrows Voir Dire Decision].” After Justice Burrows provided us with the Burrows Voir Dire Decision, the Supreme Court of Canada delivered its decisions in R. v.

Sinclair , 2010 SCC 35 , [2010] 2 S.C.R. 310, R. v. McCrimmon , 2010 SCC 36 , [2010] 2 S.C.R. 402, and R. v. Willier , 2010 SCC 37 , [2010] 2 S.C.R. 429 [collectively, the “Counsel Trilogy”], which all dealt with the implementation requirements of Charter s. 10(b). The Applicant argues that none of the Counsel Trilogy applies to the case before this Court, and he distinguishes each of them, based on their facts. Thus, this Court must present a very brief overview of each of the Counsel Trilogy. a. R. v.

Sinclair , 2010 SCC 35 , [2010] 2 S.C.R. 310 [15] In Sinclair , the police arrested the accused for the second degree murder of another individual. On his arrest, the police advised the accused that they were arresting him for the killing, that he had the right to retain and instruct counsel without delay, that he could call any lawyer he wanted, and that a Legal Aid lawyer would be available free of charge (para. 5). When the police asked the accused whether he wanted to call a lawyer, he responded, “Not right this second.” (para. 5).

The police then took the accused to the police detachment, with assurances that he would have another opportunity to contact counsel once they got there. [16] After the police booked the accused, he was again asked whether he wanted to exercise his right to counsel. This time he told the officer that he wanted to speak with a specific lawyer, whom he had retained to defend him on an unrelated charge (para. 6). The police placed the call and the accused spoke with that lawyer by telephone in a private room for about three minutes.

The police officer asked the accused whether he was satisfied with the call, to which the accused replied, “Yeah, he's taking my case.” (para. 6). About three hours later, the police officer called that lawyer to find out if he was coming to the police station to meet with the accused. The lawyer said he would not be attending at the station because he did not yet have a Legal Aid retainer, but he asked to speak with the accused again by telephone (para. 7). That resulted in another three-minute phone call with the accused in a private room.

Afterwards, the accused again told police officer that he was satisfied with the call (para. 7). [17] A different police officer interviewed the accused later that day for about five hours. Before that interview began, that officer confirmed with the accused that he had been advised of, and had exercised, his right to counsel. The officer also warned the accused that he did not have to say anything and informed him that the interview was being recorded and could be used in court (para. 8). As the interview began, the accused said that he had nothing to say until his lawyer was present (para. 8).

The officer confirmed that the accused indeed had the right not to speak. The officer also said that, as he understood Canadian law, the accused had the right to consult his lawyer but did not have the right to have the lawyer present during questioning (para. 8). The officer continued to interview the accused by attempting to build trust with the accused while eliciting some preliminary information. [18] Later, the accused again expressed discomfort with the officer interviewing him in the absence of his lawyer. The officer repeated that the accused had the right to choose whether to talk or not to talk.

The officer also expressed the view that the police had already satisfied the accused’s right to counsel by the earlier telephone calls. This explanation seemed to satisfy the accused (para. 9).

[19] The officer continued asking the accused questions and included some incriminating discoveries that had resulted from the investigation. The accused continued to exercise his right to silence and asked that he be allowed to speak with his lawyer (para. 10). Altogether, the accused alternately expressed his desire to speak with his lawyer and his intention to remain silent on matters touching his involvement in the killing four or five times. Each time, the officer emphasized that it was the accused’s choice to make (para. 10). [20] Eventually, the accused made incriminating statements (para. 11).

After that, the officer returned the accused to his cell, where he made further incriminating statements to a “cell plant” (para. 12). [21] The ratio decidendi of Sinclair is best summarized by an introductory paragraph that explains the judgment’s subject and rationale: 2 We conclude that s. 10(

b) does not mandate the presence of defence counsel throughout a custodial interrogation. We further conclude that in most cases, an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies s. 10(b). However, the police must give the detainee an additional opportunity to receive advice from counsel where developments in the course of the investigation make this necessary to serve the purpose underlying s. 10(

b) of providing the detainee with legal advice relevant to his right to choose whether to cooperate with the police investigation or not. To date, this principle has led to the recognition of the right to a second consultation with a lawyer where changed circumstances result from: new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the first information provided was deficient.

The categories are not closed. [22] The Applicant argues that the most important factual difference between Sinclair and the case before this Court is that the accused in Sinclair was able to consult with his counsel of choice before the police interviewed him. In the case before this Court, the Applicant was not able to reach Mr. Lennon, his apparent counsel of choice.

Furthermore, the Applicant argues, the Supreme Court of Canada did not indicate how courts should respond to situations where the police hold out to a detainee the prospect of future consultations with counsel and then, when the detainee asks for such access, the police do not allow the detainee to contact counsel. b. R. v. McCrimmon , 2010 SCC 36 , [2010] 2 S.C.R. 402 [23] In McCrimmon , the police arrested the accused in relation to eight assaults committed against five different women.

On his arrest, a police officer advised the accused of the reasons for his arrest, his right to retain and instruct counsel, and his right to remain silent. As well, the officer told the accused that he could call any lawyer he wanted, and that he had a right to contact a Legal Aid lawyer through a 24-hour telephone service. The accused stated that he wished to speak to a lawyer (para. 1). [24] The police then took the accused to the police detachment where he provided the police with the name of a lawyer with whom he wished to speak.

A police officer called that lawyer’s office, but was unable to reach him and left a message on the answering machine. The officer did not attempt to find the lawyer’s home telephone number, nor did the accused ask the officer to do so (para. 7). The accused said to the officer, “I don’t know if I’ll hear back from him. Like I said, I only used him once. He’s the only guy I know. I’ve never really dealt with a lawyer before.” The officer then asked the accused if he would like to call a Legal Aid lawyer, to which he replied, “Well, yes, definitely, but I prefer Mr.

Cheevers.” The accused then spoke privately with duty counsel for approximately five minutes. At the end of his conversation, the accused confirmed that he was satisfied with the consultation and that he understood the advice that duty counsel provided to him (para. 7). [25] A different officer then took the accused into an interview room and spoke with him for about three hours and twenty minutes. At the outset, the accused confirmed having spoken with a Legal Aid lawyer, and said the Legal Aid lawyer advised him that he did not have to say anything to the police (para. 8).

The officer affirmed the accused’s right to silence, cautioned him that anything he said could be used against him, and commenced with the investigative interview (para. 8). [26] When the officer turned to the incidents under investigation, the accused stated that he did not want to discuss the topic until he had spoken with his lawyer, but, at the same time, indicated that he did not mind speaking with the officer. The officer told the accused that he had the choice to talk or not to talk, but that he could not have his lawyer in the interview room with him.

The officer revealed possible incriminating evidence that the investigation had discovered. The accused repeated his request to speak to his own

lawyer (para. 9). The officer declined this request, stating his understanding that the accused had already exercised his right to counsel by speaking to duty counsel and had expressed satisfaction with the advice he had received. The accused asked to be taken back to his cell, indicating that he was not going to answer any more questions (para. 9). The officer continued in his attempts to persuade the accused to discuss the incidents under investigation. The officer interspersed his remarks with references to what the police knew about the incident and referring to witness statements.

The accused insisted that he would not speak without his lawyer, stating “my voice will be heard in the end, with my lawyer.” (para. 10). The officer affirmed that the accused had a right to exercise his right to silence and that he did not have “to keep repeating it ... to get that.” (para. 10). Eventually, the accused made a number of statements implicating himself in the offences (para. 11). [27] The Supreme Court of Canada’s ratio decidendi in McCrimmon is explained in these introductory paragraphs: 3 ... [W]e reject Mr. McCrimmon's submission that s. 10(

b) requires the presence, upon request, of defence counsel during a custodial interrogation. We also agree with the courts below that no s. 10(

b) violation ensued from the failure to provide him with an opportunity to consult with the particular lawyer of his choice prior to the interrogation or from the denial of his requests for further consultation during the course of the interrogation . As explained in Sinclair , the police may provide the detainee with any number of opportunities to consult with counsel. However, they are constitutionally required to do so only where developments in the course of the interrogation make this necessary to serve the purpose underlying s. 10(

b) of providing the detainee with legal advice relevant to his right to choose whether to cooperate with the police investigation or not. Where no such change occurs, the better approach is to continue to deal with claims of subjective incapacity or intimidation under the confessions rule. 4 In this case, there was no change in circumstances triggering a right to renewed consultation with counsel. Further, the trial judge properly considered any impact on Mr. McCrimmon arising from the police's refusals to facilitate further contacts with counsel in assessing the voluntariness of the statements.

We see no reason to interfere with the trial judge's conclusion that the statements were voluntary or his dismissal of the Charter application. [Emphasis added.] [28] The Applicant concedes that there are similarities between the facts in McCrimmon and the facts before this Court. He argues, however, that in McCrimmon , it does not appear that the police ever told the accused that, on his request, he would be allowed further access to legal counsel. In the case before this Court, Cst. Waldorf knew that the Applicant had yet to speak with his apparent counsel of choice. Yet, Cst.

Waldorf refused to allow the Applicant any further access to counsel before proceeding with the interview. c. R. v. Willier , 2010 SCC 37 , [2010] 2 S.C.R. 429 [29] In Willier , the police arrested the accused for the murder of an individual. The police took the accused to a hospital, because the accused told the police that he had taken a number of pills (para. 8). While in the emergency ward, the police informed the accused of the reason for his arrest, and of his right to retain and instruct a lawyer without delay (para. 9).

They told the accused that he could call any lawyer he wanted, informed him of the availability of free duty counsel, and provided him with a telephone book and the toll-free number for Legal Aid (para. 9). [30] After the accused was released from the hospital at approximately midnight, the police took him to the police detachment. When they again informed him of his right to counsel, he asked to speak to a free lawyer.

The accused had a three-minute conversation with duty counsel, following which he was returned to his cell for the night (para. 10). [31] The next morning, a Sunday, another officer confirmed with the accused that he had spoken with a lawyer the night before and offered him another opportunity to contact counsel. The accused indicated that he wanted to speak with a specific lawyer (para. 11). The officer dialed that lawyer’s telephone number, passed the telephone to the accused, and left the accused in the room so he could leave a message on the lawyer’s answering machine.

After the accused hung up the telephone, the officer asked him if he wanted to contact another lawyer. He declined the offer, indicating that his preference was to wait (para. 9). After the officer informed him that the lawyer the accused attempted to call would not likely be available until the next day, and of the immediate availability of Legal Aid, the accused opted to speak with duty counsel a second time. After a brief one-minute conversation with a Legal Aid lawyer, the police returned the accused to his cell (paras. 10-11).

[32] About 50 minutes later, a different officer initiated an investigative interview with the accused. After confirming the accused’s prior consultations with Legal Aid, the officer again informed the accused of his right to retain and instruct counsel and offered him another opportunity to contact a lawyer before continuing with the interview (para. 12). The accused indicated that he was satisfied with the advice he had received from Legal Aid. The officer repeated the caution that the accused had the right to remain silent (para. 12).

The officer indicated that he would proceed with the interview, but that the accused would be free at any time during the interview to stop and call a lawyer. Thereafter, the accused did not stop the interview. During the ensuing exchange, the accused made incriminatory statements (para. 12). [33] The Supreme Court of Canada’s ratio decidendi in Willier is as follows: 24 ...

While the right to choose counsel is certainly one facet of the guarantee under s. 10(b) , the Charter does not guarantee detainees an absolute right to retain and instruct a particular counsel at the initial investigative stage regardless of the circumstances . ... 35 Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(

b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond . What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation.

If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended ... [Emphasis added, citations excluded]. [34] The Applicant argues that Willier is distinguishable from the case before this Court, because the police in Willier honoured the accused’s request and granted him further access to a telephone the next morning.

At the beginning of the interview, the officer again told the accused of his right to consult with counsel and that if the accused wished to talk with a lawyer again he had only to make that request and the interview would be stopped to accommodate his wishes. The accused did not again ask to be allowed to speak with counsel. [35] In the case before this Court, the Applicant argues that he did not waive or relinquish his right to consult with his apparent counsel of choice.

When he requested a chance to renew his efforts to reach that lawyer, the police refused, despite their promises earlier of letting him have access to counsel as he might from time to time request. 4. Application and Relevance of the Counsel Trilogy [36] The Crown argues that the Counsel Trilogy and, in particular, some of the obiter dicta that the Supreme Court of Canada expresses in those cases apply to the case before this Court. In other words, the Counsel Trilogy provides general principles that set out the scope and nature of a detainee’s right to counsel.

Those general principles are relevant to the present case. [37] Factually, the Crown argues that the Applicant did indeed have the right to contact Mr. Lennon and, when he was unable to contact Mr. Lennon the first time, he chose to contact Mr. Fontaine. In other words, the lawyer whom the Applicant successfully contacted, Mr. Fontaine, became the Applicant’s chosen counsel. The Applicant never expressed to the RCMP that Mr. Lennon was his specific counsel of choice. The Applicant did not await a return call from Mr. Lennon, nor did he even leave a message for Mr.

Lennon to contact the Applicant at the detachment. [38] As well, the Crown argues that it was the Applicant who chose to speak with Cst. Brophy on April 12, 2005. Cst. Brophy had no intention of interviewing the Applicant that day, and when the Applicant started his meeting with Cst. Waldorf, it was Cst. Waldorf who raised the matter of the Applicant wanting to speak with counsel. The Applicant did not raise the issue with Cst. Waldorf. The next

time the Applicant asked to speak with Mr. Lennon was late in the morning on April 12, 2005. At that time, Cst. Brophy testified, the Applicant wanted to speak with Mr. Lennon to discuss issues concerning his judicial interim release. [39] The critical issue with which this Court must deal, at this point, is the impact of the rulings and commentary that the Supreme Court of Canada provides in the Counsel Trilogy. This Court acknowledges that the fact scenarios in each of the cases in the Counsel Trilogy are not the same as the circumstances of the Applicant’s consultation with counsel and interview process.

Accordingly, the rationes decidendi reflected in those cases do not necessarily apply to the case before this Court, so the commentary could be considered as the Supreme Court of Canada’s obiter dicta on the larger issue of right to counsel and the appropriate

interpretation of Charter s. 10(

b) and the obligations that provision places on law enforcement personnel. [40] The Supreme Court of Canada addressed the debate of the binding nature of its obiter dicta in R. v. Henry , 2005 SCC 76 , [2005] 3 S.C.R. 609: 57 The issue in each case, ... is what did the case decide? Beyond the ratio decidendi which, ... is generally rooted in the facts, the legal point decided by this Court may be as narrow as the jury instruction at issue in Sellars or as broad as the Oakes test. All obiter do not have, and are not intended to have, the same weight.

The weight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative. Beyond that, there will be commentary, examples or exposition that are intended to be helpful and may be found to be persuasive, but are certainly not "binding" in the sense the Sellars principle in its most exaggerated form would have it. The objective of the exercise is to promote certainty in the law, not to stifle its growth and creativity.

The notion that each phrase in a judgment of this Court should be treated as if enacted in a statute is not supported by the cases and is inconsistent with the basic fundamental principle that the common law develops by experience.

The Applicant paraphrased this analysis by using an analogy of concentric circles; the farther the obiter dicta moves from the centre of the circle (the ratio decidendi ), the less weight a court should place on that obiter dicta . [41] The Supreme Court of Canada chose to deliver the Counsel Trilogy on the same date, and referred, in each case, to the other cases in the Counsel Trilogy. Why? The answer to this question is reflected in the introductory wording in McCrimmon , where the court said: 1 This appeal and its companion cases, R. v. Sinclair , 2010 SCC 35 (S.C.C.) , and R. v.

Willier , 2010 SCC 37 (S.C.C.) , elaborate upon the nature and limits of the right to counsel provided under s. 10(

b) of the Canadian Charter of Rights and Freedoms . [Emphasis added]. [42] Thus, the Supreme Court of Canada was dealing with the broader issue of the nature and limits of a detainee’s Charter s. 10(

b) rights. Although each of the cases in the Counsel Trilogy dealt with different aspects of this right, this Court finds that some of the obiter dicta is “intended for guidance and ... should be accepted as authoritative.” That does not mean that every sentence and example that the Supreme Court of Canada provides in the Counsel Trilogy will carry the same weight. However, for this Court to attempt to parse out each such aspect serves no useful purpose, if the obiter dictum falls within the broad scope of the court’s elaboration of a detainee’s right to counsel. [43] On April 12, 2005, once Cst.

Brophy took the Applicant to the RCMP detachment, the Applicant said he wanted to call Mr. Lennon. Cst. Brophy specifically said: He indicated he wanted to call Lennon and Barlow lawyers and I believe mentioned that he had used Mr. Bruce Lennon at some point in the past and wanted to try and get in touch with him. Transcript of Voir Dire Proceedings, December 5, 2011, p. 13, ll. 8-10

[44] This Court finds that Mr. Lennon was the Applicant’s counsel of choice. Although the Crown argues that the Applicant never said specifically that Mr. Lennon was his counsel of choice, one would be hard-pressed to say that Mr. Lennon was not. He was the Applicant’s first choice, and the person whom the Applicant repeatedly attempted to contact. [45] However, Cst. Brophy did not hesitate to allow the Applicant to contact Mr. Lennon, and, in fact, helped the Applicant facilitate this contact. Mr. Lennon was not available, and rather than wait for Mr.

Lennon to become available, the Applicant immediately took up the offer to contact other counsel. Cst. Brophy did not recommend or select Mr. Fontaine for the Applicant. The Applicant chose Mr. Fontaine on his own. He was satisfied with the advice Mr. Fontaine provided to him. This is not unlike the situation in McCrimmon where the court said: 19 In this case, we agree with the courts below in rejecting Mr. McCrimmon's contention that he was denied the right to counsel of choice in a manner that contravened his rights under s. 10 (b). While Mr. McCrimmon expressed a preference for speaking with Mr.

Cheevers, the police rightly inquired whether he wanted to contact Legal Aid instead when Mr. Cheevers was not immediately available. Mr. McCrimmon agreed, exercised his right to counsel before the interview began, and expressed satisfaction with the consultation . He also indicated an awareness of his rights at the commencement of the interview. In these circumstances, there was no further obligation on the police to hold off the interrogation until such time as Mr.

Cheevers became available . [Emphasis added.] See also Willier at para. 35 supra , which deals with this issue directly, and Willier para. 39 , which says that if an accused exercises their right to counsel by opting to speak with Legal Aid rather than their counsel of choice, the police need not provide the accused with a “ Prosper warning.” [46] One of the most important statements that flows from the Counsel Trilogy appears in Sinclair at para. 64 , where the court said, “the right to counsel is essentially a one-time matter with few recognized exceptions.” That is the starting point for any analysis of this issue.

Sinclair also provides us with examples of those “few recognized exceptions” and said: For the purpose of providing guidance to investigating police officers, it is helpful to indicate situations in which it appears clear that a second consultation with counsel is so required (at para. 49). [47] The examples that the Supreme Court of Canada provides are: a. a new and non-routine procedure which involves the detainee (para. 50); b. a change in jeopardy (para. 51); and c. a reason to question the detainee’s understanding of their Charter s. 10(

b) right (para. 52). a. Non-Routine Procedures [48] The new and non-routine procedures involving the detainee are those that go beyond questioning. In Sinclair , the court referred to questioning as a routine procedure. It then provided examples of “non-routine procedures,” such as “participation in a lineup or submitting to a polygraph” (at para. 50). [49] Subsequent to the Counsel Trilogy, the Alberta Court of Appeal has indicated that a police recording of an interview is not a “non-routine procedure”: R. v. Wu , 2010 ABCA 337 at paras. 69-71 , 44 Alta.

L.R. (5th) 333. [50] The Applicant argues that two “non-routine procedure events” occurred during the Applicant’s interviews with Cst. Brophy:

1. when Cst. Brophy started discussing the nature of DNA and then asked the Applicant whether he would consent to provide a DNA sample [Transcript of the Applicant’s Statements, April 11, 2005 Tape 1, pp. 23-25. Transcript of the Applicant’s Statements, April 11, 2005 Tape 3, p. 11]; and 2. when the Applicant suggested to Cst. Brophy that Cst. Brophy conduct a polygraph test, and when Cst.

Brophy asked the Applicant whether he would consent to a polygraph test, [Transcript of the Applicant’s Statements, April 11, 2005 Tape 3, p. 11]. [51] This Court finds an officer’s obligation to provide a detainee with a new opportunity to consult counsel arises before a detainee’s active participation in the non-routine procedure, and not during a discussion of the procedure or after a commitment to participate. In Sinclair at para. 50 the Supreme Court of Canada specifically described the trigger for a renewed Charter s. 10(

b) right as, “participation in” or “submitting to” a procedure. It did not use the phrases “agreeing to” or “consenting to.” [52] Furthermore, the Supreme Court of Canada did not identify a detainee’s providing a DNA sample as one of its examples of a non-routine procedure. This Court need not decide whether this is a non-routine procedure, as the Applicant, in any event, did not provide a DNA sample. On the evidence that the parties presented to this Court, Cst.

Brophy did not place the Applicant in a position of having to participate in any non-routine procedure, as the RCMP restricted their investigation during this period to questioning the Applicant. b. A Change in Jeopardy [53] The Supreme Court of Canada in Sinclair states that the police are required to allow a detainee a further consultation with counsel when the detainee faces a change in jeopardy: 51 The detainee is advised upon detention of the reasons for the detention: s. 10(a). The s. 10(

b) advice and opportunity to consult counsel follows this. The advice given will be tailored to the situation as the detainee and his lawyer then understand it. If the investigation takes a new and more serious turn as events unfold, that advice may no longer be adequate to the actual situation, or jeopardy, the detainee faces. In order to fulfill the purpose of s. 10 (b), the detainee must be given a further opportunity to consult with counsel and obtain advice on the new situation. [Emphasis added.] [ 54 ] The Applicant argues that, although Cst.

Brophy told the Applicant on April 11, 2005, that he was being arrested for murder, the Applicant was not actually charged with murder until April 12, 2005. As well, Cst. Brophy and the Applicant had the following exchange on April 11, 2005: Applicant: And [sigh], I just think I made a mistake. What is gonna, like, I’m still obviously charged with this major charge. Cst. Brophy: You are not charged with anything yet. You’re arrested for Homicide. Ok, big difference. Applicant: Oh, ok [unintel.]. Cst. Brophy: If you were charged you’d be in front of a JP. Ok. Applicant: Ok. Cst.

Brophy: This is still under investigation. You’re under arrest for this right now. Ok, you understand the difference?

Applicant: Yeah. [Transcript of the Applicant’s Statements, April 11, 2005 Tape 3, p. 18] Thus, the Applicant argues that his jeopardy changed when the RCMP charged him with the murder. [55] What is a change in jeopardy? In R. v. V. (S.E.), 2009 ABCA 108, 448 A.R. 351 the Alberta Court of Appeal said: 27 ... A change in jeopardy requiring a re-caution involves a fundamental and discrete change in the purpose of the investigation,such as a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the prior warning,or an additional offence ... It is not a change in jeopardy under s. 10(

b) for a detainee to gradually learn more about the evidence againsthim during the police interview ... [Citations excluded, emphasis added]. [56] More recently, the Alberta Court of Appeal said in R. v. Nelson, 2010 ABCA 349, 490 A.R. 271: 27 ... The arrest for the murders left the appellant with full knowledge of the crimes the police suspected he had committed and thathe would be questioned with respect to those crimes. In R. v. Sinclair, 2010 SCC 35 (S.C.C.) at para 32, the Supreme Court noted that, inthe context of a custodial detention, the purpose of s.10(

b) of the Charter is to support the detainee's right to choose whether to cooperatewith the police investigation or not, by giving him access to legal advice on the "situation" he is facing. In this case there is no doubt thatthe appellant knew the situation he was facing and was able to get advice regarding that situation before he was questioned by police.[Emphasis added.] These passages clearly indicate that the ‘new jeopardy’ Charter s. 10(

b) right exists, such that a detainee can obtain advice concerning apreviously undisclosed offense, or an offense that is more serious than the one which the detainee was initially suspected of committing. [57] The issue concerning the detainee’s change in their jeopardy ties closely to their right to be advised of the reason why thepolice arrested them in the first place. In R. v. Latimer, (SCC), [1997] 1 S.C.R. 217, 142 D.L.R. (4th) 577 the SupremeCourt of Canada said: 28

Section 10(

a) of the Charter provides the right to be informed promptly of the reasons for one's arrest or detention. The purposeof this provision is to ensure that a person "understand generally the jeopardy" in which he or she finds himself or herself ... There aretwo reasons why the Charter lays down this requirement: first, because it would be a gross interference with individual liberty forpersons to have to submit to arrest without knowing the reasons for that arrest, and second, because it would be difficult to exercise theright to counsel protected by s. 10(

b) in a meaningful way if one were not aware of the extent of one's jeopardy ... [Citations excluded,emphasis added]. [58] In the case before this Court, Cst. Brophy advised the Applicant of the reason for his arrest, which was murder. On April 12,2005, the RCMP charged the Applicant with murder. There was no fundamental and discrete change in the purpose of the RCMP’sinvestigation, such as a different and unrelated offence or a significantly more serious offence or an additional offence than thatcontemplated at the time the Applicant contacted Mr. Fontaine.

The Applicant had full knowledge of the crime the RCMP suspected hehad committed. As well, the Applicant knew that the RCMP would be questioning him with respect to that crime. He knew the“situation” he was facing and was able to get advice from Mr. Fontaine regarding that “situation” before Cst. Brophy and Cst. Waldorfquestioned him. He understood the jeopardy he was facing. [59] The Applicant argues that this Court should apply the “change in jeopardy test” that the Supreme Court of Canada applied inR. v.

Paternak, (SCC), [1996] 3 S.C.R. 607 at para. 1, 203 N.R. 250, where, in a two-paragraph judgment, the courtheld that the police violated that accused’s Charter s. 10(

b) rights when, “the police officer concluded that the appellant had committedthe offence and advised the appellant accordingly.”

[ 60 ] Although this broad statement might apply to the case before this Court, the Ontario Court of Appeal in R. v. Chalmers , 2009 ONCA 268 , 247 O.A.C. 250, clarified the situation with which the Supreme Court of Canada was dealing, when it said: 42 ... It is not apparent from the brief endorsement of Sopinka J. in Paternak , what facts the Supreme Court relied on in allowing the appeal; however, the appellant's factum in the Supreme Court in that case appears to indicate that Mr.

Paternak was initially interviewed as a witness and that he was never told he was a suspect prior to the point of his detention. [Emphasis added.] That factual matrix makes Paternak distinguishable from the case before this Court. The RCMP were not interviewing the Applicant as a witness. They were interviewing the Applicant as a suspect, and he knew that was the case. c. The Applicant ’s Understanding His Charter s. 10(

b) Rights [ 61 ] The Applicant did not argue that he did not understand that he had a right to contact counsel pursuant to Charter s. 10(b) . Had he argued this, this Court would have found that he was well aware of this right after his arrest and throughout his interviews with the RCMP officers. 5. Application of the General Counsel Trilogy Principles [ 62 ] As mentioned earlier, the Applicant argues that the Counsel Trilogy does not apply to a situation where:

a) the police hold out to a detainee the prospect of future consultations with counsel, and

b) the police then do not allow the detainee to contact counsel when the detainee asks for that access. [ 63 ] This is not an exception identified by the Supreme Court of Canada that would entitle the detainee to a second consultation with counsel. In fact, the court was alive to this issue when it said in Sinclair : 49 The police, of course, are at liberty to facilitate any number of further consultations with counsel. In some circumstances, the interrogator may even consider it a useful technique to reassure the detainee that further access to counsel will be available if needed.

For example, in the companion case of R. v. Willier , 2010 SCC 37 (S.C.C.) , a skilled interrogator commenced the interview by making it clear to the detainee that he would be free at any time during the interview to stop and call a

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