R v Araya, 2018 ABQB 987

Court of Queen’s Bench of Alberta Citation: R v Araya, 2018 ABQB 987 Date: 20181204 Docket: 150882975Q1 Registry: Grande Prairie Between: Her Majesty the Queen Crown - and - Abel Araya Accused _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice Eidsvik _______________________________________________________ I. Introduction [ 1 ] Mr. Abel Araya brought an application at the commencement of his trial on charges contrary to s. 5(2) and 4(1) of the Controlled Drugs and Substances Act , SC 1996, c 19 for a finding that his rights pursuant to s. 10 (

b) of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 ( Charter ) were infringed since his right to access counsel by telephone was delayed for four hours and his access to counsel was interfered with. Further, that he is entitled to a stay of his charges as a remedy pursuant to s. 24(1) of the Charter . [ 2 ] By agreement, the Crown agreed to call the officers’ evidence and Mr. Araya’s counsel cross-examined them. Three officers

were called: Corporal Chillog, Cst. Skinner and Sgt. Paquette. Mr. Araya, then testified as well. [ 3 ] Defence counsel sought to amend her application to include breaches of s. 8 and s. 9 of the Charter after hearing the evidence on voir dire . I allowed her application, however, after a break in order to consider whether further evidence would need to be led, and further consulting with her client and the Crown, she withdrew this amendment. Argument proceeded on the alleged s. 10(

b) breach alone. II. The Facts A. Officers’ testimony [ 4 ] The Grande Prairie RCMP were attempting to curb the trafficking of hard drugs in the Grande Prairie area in an undercover operation where attempts to purchase drugs were made with targeted people (those of whom they had information that they were selling illicit drugs). Cst. Skinner was in charge of the project along with Sgt Paquette of the Edmonton Police Service who had come to Grande Prairie as the acting sergeant for a limited time to work on this project. Corp.

Chillog (who was a constable at the time), was also a Grande Prairie investigating officer on the project. [ 5 ] The project had target sheets that the undercover team were concentrating on. Mr. Araya was not initially a target of this project. Neither officer Chillog nor Skinner knew of him. Instead, the RCMP officers in the operation were targeting an alleged dealer named Floyd Dick, and others. On July 21, 2015, an undercover officer bought some cocaine from Mr. Dick. Cst Skinner testified that indeed three sales of cocaine had happened over the week from Mr.

Dick. [ 6 ] The information was that an undercover officer also enquired about whether Mr. Dick could sell them any Fentanyl. The information was that Mr. Dick could not, but he gave them the telephone number of someone called “Ace” who could supply them. A call was made to Ace that night, and a deal was made for the purchase and sale of Fentanyl, under surveillance between an undercover officer and Ace, who the Crown alleges is Mr.

Araya. [ 7 ] On July 23, 2015 another attempt was made to contact Ace and another deal for the purchase and sale of Fentanyl was made in an alley near a restaurant parking lot, also with an undercover officer, under surveillance. [ 8 ] Corp. Chillog testified that he was not directly involved with this deal, but was around the corner in a different car. He was contacted about the deal being done and he was cued to make the arrest of “Ace”. [ 9 ] Corp. Chillog arrested Mr. Araya at 13:58 for 2 counts of trafficking Fentanyl. The officer handcuffed Mr. Araya and searched him. The officer asked Mr.

Araya if he had any drugs on him since Corp Chillog was concerned about Fentanyl. He found five Fentanyl pills in a Kleenex in a pocket, a cell phone, a $100 bill, various other cash, and a half smoked joint in his hand. At 14:01 the officer charged him with further offences, possession of 5 Fentanyl pills, possession of marijuana, and possession of proceeds of crime. [ 10 ] At 14:06 Corp. Chillog then read Mr. Araya his Charter rights from a card: You have the right to retain and instruct a lawyer without delay.

This means that before we proceed with our investigation, you may call a lawyer you wish or a lawyer from a free legal advice service immediately. If you want to call a lawyer from a free legal advice service, we will provide you with a telephone, and you can call a toll free number for immediate legal advice. If you wish to contact any other lawyer, a telephone book will be provided to you. If you are charged with an offence, you may apply to Legal Aid for assistance. [ 11 ] Corp. Chillog asked Mr. Araya if he understood, which he replied he did, and whether he wanted to call a lawyer, to which Mr.

Araya said “yes it would be the best choice”. [ 12 ] Mr. Araya was then placed in a car and driven to the detachment, where he was “processed” by a different officer. At 14:26 Mr. Araya was placed in a cell. [ 13 ] Normally, shortly after processing, Corp. Chillog testified that he would have then led a detainee to the telephone room so that a call could be made to a lawyer. However, in this case, Mr. Araya was brought to a cell instead of the phone room. So normally a call would have been made around 14:25 . He was aware of Mr. Araya’s right to place a call as soon as possible. [ 14 ] Corp.

Chillog indicated that the phone room had a phone book in it and there was no restriction about who the arrested person can call. There was also a Legal Aid list on the wall. [ 15 ] Here however, Corp. Chillog received a call from Cost. Skinner who advised him that Mr. Araya should not be allowed to access the telephone room. He was asked to hold Mr. Araya until a call was made to Floyd Dick to attempt another sale or until it was “safe”. Cst. Skinner explained that they were making the final “buying and busting” transactions that afternoon. Corp. Chillog advised that if the call to Mr.

Dick had not been successful, he would have allowed the access to the room. He knew that several calls were being made to various targets and indeed he was planning on going back out to further this investigation after he finished with Mr. Araya. [ 16 ] Corp. Chillog explained that Grande Prairie is a small centre and there were concerns for the undercover operators that were still pursuing the investigation. Further, they were concerned that Mr. Araya might try and contact Floyd Dick who was still at large and was a target that day as well.

Other targets were also being investigated and arrested that day including a William Barber, Rebecca Noel and Kendall Kruger. These latter three were all arrested and brought into custody that afternoon although the sequence and exact timing is not quite clear. [ 17 ] Corp. Chillog indicated that he was concerned that a call at 14:26 would have interrupted the investigation. He assumed that here was an association between Mr. Dick and Mr. Araya because of the telephone number of Mr. Araya having been transmitted by Mr.

Dick. Sgt Paquette echoed this concern that Mr. Araya may contact others in his “organisation” and that this would have been a “huge risk” to his undercover officers still out on the field. [ 18 ] Cst. Skinner also indicated that there was a safety concern that Mr. Araya might identify some undercover officers and that generally drug dealers carry knives and guns so there was a huge risk involved. [ 19 ] However, in this specific instance, Sgt. Paquette confirmed that on this occasion, no firearms or weapons were found on Mr.

Araya nor on any of the other targets arrested that afternoon as far as he knew. [ 20 ] Sgt. Paquette indicated in cross-examination that in situations like this, where there is a series of drug buys in progress, the default is to have the arrested person’s rights to call counsel held off until all of the arrests are completed. In his view, officer safety outweighs a couple of hours of call delay. [ 21 ] Corporal Chillog was in charge of monitoring when Mr. Araya got the right to call his lawyer. He confirmed on cross- examination that it was his “sole responsibility”.

He left the detachment that afternoon and was continuing in the investigation. Nonetheless, he stated that he was aware of Mr. Araya’s rights to call his lawyer were in suspense and he was dealing with this issue on a minute by minute basis. He was not sure who was left at the detachment while he was out. [ 22 ] He testified that around 5 p.m. (17:00) there had been a successful contact (meaning arrest) with Mr. Floyd Dick at the scene. Further, and in the meantime, although it was not too clear, information had been obtained from Mr.

Dick’s girlfriend which gave the police an opportunity to seek a search warrant of Mr. Dick’s premises. Ultimately, for some reason, this did not pan out. Mr. Dick was the last of the suspects arrested. [ 23 ] Cst. Skinner agreed that Floyd Dick could have been arrested before the last sales transaction on July 23 rd . [ 24 ] Accordingly, Corp. Chillog returned to the detachment and allowed Mr. Araya into the phone booth at 17:35 . During the time in the cell, as far he knows, no investigative questions were made of Mr. Araya. However, he was not at the detachment during this period.

He indicated that he had been busy between 14:26 and 17:35 but he was also concerned that Mr. Araya had not yet spoken to a lawyer and he wanted to get back to the detachment to deal with that. [ 25 ] At some point shortly after putting Mr. Araya in the lawyers room (where the phone and a phone book were located), Mr. Araya tapped on the glass and asked for a hair salon telephone number which Corp. Chillog believed was so Mr. Araya could get his lawyer’s number. This was provided. He later provided Mr. Gubbins’ telephone number as well. He had no notes about these details and his memory was vague on these points.

He indicated that Mr. Araya made contact with Mr. Gubbins at 17:50. [ 26 ] Corp Chillog was cross-examined about whether he provided Mr. Araya with the name of a lawyer, Mr. Gubbins. He advised that he has recommended Mr. Gubbins before – perhaps 2 or 3 times – especially when somebody had no idea who to call. He couldn’t remember if he had done this with Mr. Araya however. He agreed that it was possible. [ 27 ] He advised under cross-examination that he made no notes about the status of the phone book in the booth.

He recalls that there was a “legal aid list” on the wall and indicated that it is his practice to point this out to detainees. [ 28 ] At 17:57, Corp. Chillog was advised by Mr. Araya that Mr. Araya’s lawyer, Mr. Gubbins, wanted to talk with Corp. Chillog to discuss release terms. The Corporal called Mr. Gubbins back at 18:05 and he believes that they discussed bail terms. B. Mr. Araya’s testimony [ 29 ] Mr. Araya is 36 years old and has worked as a barber for the last 14 years. He was employed at a hair salon in Grande Prairie and had been in the City for a month before his arrest. [ 30 ] Mr.

Araya recalled being arrested and being asked if he wanted to call a lawyer. He said that he did, and he was told that he could do so once he had been “registered”. He was handcuffed on arrest and brought down to the detachment. Once there he was told to put his personal belongings into a bag that would be kept at the desk. He asked many questions because this was his first arrest, he’d never been inside of a cell before, nor had any interaction with the police, or been handcuffed before. He asked again about a phone call and was told “ya ya, you’ll get your chance”. They measured him and took his fingerprints.

This process took about 5 to 6 minutes. He was then walked down to the cells and told that he would get his call when he got his chance. [ 31 ] Mr. Araya was alone in his cell. He again asked Corp. Chillog if he could call a lawyer, but Corp. Chillog told him that he would have to call his supervisor first and that he’d get back to him. Mr. Araya asked how long he would be detained, but Corp. Chillog said that he didn’t have an answer. [ 32 ] Mr. Araya sat in his cell for several hours. He asked every constable that walked by if he could please make a phone call.

He kept being told that his arresting officer wasn’t back yet so that they couldn’t help him. He noticed that others were being put into cells and were being taken out within 15-20 minutes. [ 33 ] At one point a guard, who was surprised about him not getting his call, brought him a book and magazine to read. Overall however he was being ignored. [ 34 ] He finally overheard that Corp. Chillog was back and about a half-hour later he was walked to the phone room by Corp. Chillog. They made small talk to the phone booth. Mr.

Araya wanted access to his cell phone, but he was told that it was seized for evidence so that was not possible. [ 35 ] Mr. Araya testified that the phone book in the phone booth was all ripped up – “chunks” were out of it. The

section for

lawyers and hair salons in particular was ripped out. He asked Corp. Chillog for the number of his employer’s hair salon and a pen apaper. This was provided to him. He also looked for a

section for lawyers, but that portion of the phone book was ripped up. So he askedCorp. Chillog about Legal Aid advice and “how that went about”. In response Corp. Chillog told him to call “Gubbins”. Mr. Araya askedif “Gubbins” was a lawyer and he was advised that he was, and “that he deals with situations of this matter.” [36] Before Mr. Araya made the call to Mr. Gubbins however, he called the Legal Aid number and spoke to a lawyer. This lawyergave him information about the steps that he needed to take. He also told the Legal Aid lawyer that he had been advised “to callGubbins”. Mr.

Araya testified that: “So the lawyer told me that if that’s what I was told to do, or if that’s what I want to do, then goahead.” [37] Accordingly, he then looked for Mr. Gubbins’ number in the phone book but with no luck, so he asked Corp Chillog for thenumber. Corp Chillog went, and after about 5 minutes, came back with the number on a yellow sticky. He immediately thereafter calledMr. Gubbins, after the door was closed. [38] This latter call was short – about 3 minutes – yet he had so many questions. Mr. Araya also asked Mr.

Gubbins about “nextsteps”, and he understood that he was going to have a bail hearing, which occurred shortly thereafter by telephone. He asked about thecost, which was a concern to him, and he was told “not to worry” that they would deal with getting him out of there first. [39] The bail hearing happened within a few minutes of his call with Mr. Gubbins. He noted that bail was set at $500 which upsetCorp. Chillog.This was a lot for Mr. Araya. He wasn’t released for a couple of days, although he understood that his friends had tried toget him out earlier. [40] The Crown did not cross-examine Mr. Araya.

I found his evidence to be credible and reliable, although his timing wassomewhat vague, because he didn’t have a watch on or any way to tell the time other than meals coming and going. I find as a fact thatMr. Araya was given Mr. Gubbins’ name as a lawyer to contact by Corp. Chillog and that Mr. Araya had to be provided the number forhim, and for his employer, since the phone book was ripped up and parts of it were missing. The fact pages were missing out of thephone book might not have been obvious to Corp. Chillog. III. Analysis A.

Delay in exercise of right to counsel [41] Recently the Ontario Court of Appeal in R v Rover, 2018 ONCA 745 summarised the law that applies to the first part of thisapplication – the delay in bringing Mr. Araya to the phone booth to access counsel. Writing for the Court, Doherty eloquently explainedthe following at paras 24 through 28: [24]

Section 10(

b) of the Charter guarantees to anyone arrested or detained the right “to retain and instruct counsel without delay andto be informed of that right” [25]

Section 10(

b) obliges the police to advise a detained person of the right to speak with counsel without delay and, if the detainedperson exercises that right, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel: R. v.Suberu, 2009 SCC 33 , [2009] 2 S.C.R. 460, at paras. 38, 42; R. v. Bartle, (SCC), [1994] 3 S.C.R. 173, at pp.191-92. [26] The s. 10(

b) jurisprudence has, however, always recognized that specific circumstances may justify some delay in providing adetainee access to counsel. Those circumstances often relate to police safety, public safety, or the preservation of evidence. Forexample, in R. v.

Strachan, (SCC), [1988] 2 S.C.R. 980, the court accepted that the police could delay providing accessto counsel in order to properly gain control of the scene of the arrest and search for restricted weapons known to be at the scene.Subsequent cases have accepted that specific circumstances relating to the execution of search warrants can also justify delaying accessto counsel until the warrant is executed: see e.g. R. v.

Learning, 2010 ONSC 3816 , 258 C.C.C. (3d) 68, at paras. 71-75. [27] These cases have, however, emphasized that concerns of a general or non-specific nature applicable to virtually any searchcannot justify delaying access to counsel. The police may delay access only after turning their mind to the specifics of thecircumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifiessome delay in granting access to counsel.

Even when those circumstances exist, the police must also take reasonable steps to minimizethe delay in granting access to counsel: see e.g. R. v. Patterson, 2006 BCCA 24 , 206 C.C.C. (3d) 70, at para. 41; R. v. Soto,2010 ONSC 1734 , at paras. 67-71; Learning, at para. 75; R. v. Wu, 2017 ONSC 1003 , 35 C.R. (7th) 101, at para. 78. [28] Wu, at para. 78, provides a helpful

summary of the law. That

summary includes the following: The assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination. Thecase law on this issue reveals some general guiding principles that provide a framework for this assessment: a. The suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerouscircumstances arise or where there are concerns for officer or public safety. … e.

Police officers considering whether circumstances justify suspending the right to counsel must conduct a case by case assessmentaided by their training and experience. A policy or practice routinely or categorically permitting the suspension of the right to counsel incertain types of investigations is inappropriate. [Underlining in original, bolding is mine].

i. Crown and defence positions regarding delay [ 42 ] The Crown took the position that the evidence made it clear that the delay in allowing access to counsel fit squarely within the “exceptional circumstance” area where rights are justifiably suspended in the case law when officer safety would be in danger if unlimited access to the phone had been granted to Mr. Araya in these circumstances. There was a general and specific concern about a call to Mr. Dick, which could have alerted Mr.

Dick to the identification of the undercover officers and put their safety at risk. [ 43 ] The Crown did concede however that the RCMP could have possibly minimised the delay by having officer Chillog relay the information to another officer in the detachment that Mr. Dick had been arrested at around 5 p.m. so that Mr. Araya could have been brought to the phone immediately, instead of some 35 minutes later. Accordingly, counsel for the Crown conceded that there had been a s. 10(

b) breach, but that it was a minor violation in the circumstances, and no questioning or other evidence had been elicited from Mr. Araya in the meantime. [ 44 ] Defence counsel argued that “exceptional circumstances” here did not apply. Although there may have been evidence that there is a general concern for safety dealing with drug dealers, in this case, there was no specific knowledge of any weapons or past violence with respect to any of the targets in question. The evidence led was to the effect that the other targets were low level street dealers in marijuana and cocaine, not Fentanyl.

Further, in this case Mr. Dick could have been arrested earlier since he had already allegedly sold illicit drugs on earlier days to undercover officers. Therefore there did not need to be delay between Mr. Araya’s arrest and another buy arrangement with Mr. Dick. [ 45 ] Defence counsel added that if the generalised risk was allowed to suspend Mr. Araya’s s. 10(

b) rights here – then this would send a message that it will be easier and easier to suspend such rights for a wide range of cases. [ 46 ] Counsel also forcefully argued that the operational decision to only allow the arresting officer to bring the arrested person to the phone booth meant that there was a further unreasonable delay of 35 minutes. As noted, the Crown ultimately conceded that this was a breach of s. 10(

b) in face of this argument. ii. Findings regarding delay [ 47 ] My assessment of the specific circumstances surrounding the delay in providing Mr. Araya access to counsel is the following. [ 48 ] The officers’ evidence outlined the safety risks to officers in undercover operations attempting to quell the sale of illicit drugs on the streets. I accept that the operation in question was a potentially dangerous one and information that may have led to the identification of the officers in the field at the time of Mr. Araya’s arrest, and for a period thereafter, would have put them at risk.

The fact that in the end no weapons were involved, would not have been necessarily known to the officers in the case. The evidence, that I accept, is that weapons are often present in these types of dealings. [ 49 ] The operation in question was targeting certain people, many of whom were arrested the afternoon of July 23, 2015. The main target, Mr. Dick, who they believed was connected to Mr. Araya (which was not denied in his evidence), was arrested at 5 p.m. Based on the evidence before me, it is unclear as to whether the operation could have been wound up in a different or faster fashion.

Defence counsel suggested that Mr. Dick in particular, could have been arrested earlier since based on previous information about sales, the officers agreed that they had enough to arrest him earlier. Defence counsel is asking this Court to second guess why and how the officers involved in the undercover operation which targeted multiple people, most of whom are very experienced in the field of criminal drug operations and control, determined to bring in Mr.

Dick and others and in what order that they did and conclude that their strategy was not appropriate in light of the circumstances. [ 50 ] The cases provided by counsel often dealt with search warrant type situations. However, this investigative operation is analogous. In my view, the specific situation at hand warranted a suspension of Mr. Araya’s s. 10(

b) rights to call counsel for a time while the operation was being wound up and officers were still active, and potentially at risk, on the street. [ 51 ] Once Mr. Dick, who was the last of the targets to be arrested, was under police custody, there was no longer a safety concern that would merit a suspension of rights. In this case, there was a further delay between the arrest of Mr. Dick and Mr. Araya being brought to the phone booth in the detachment. This approximate half-hour delay was explained by an operational decision that only the arresting officer would allow the detained person to make a call.

The Crown was correct in conceding that this operational decision was not defendable in these circumstances. Mr. Araya’s s. 10(

b) right was breached when the police did not facilitate his immediate contact with counsel following Mr. Dick’s arrest, which delayed the call for a period of 35 minutes. [ 52 ] I would like to add, that despite my views that Mr. Araya’s s. 10(

b) right was lawfully suspended during the period between when he normally should have been allowed to make the call (14:25) and when he should have been brought to the booth (at 17:00), I note that perhaps more effort should have been made to appease Mr. Araya’s situation in the cells while he was waiting. [ 53 ] In this regard, I note that the purpose of the s. 10(

b) right is multilayered. Of course, the one purpose that permeates most of the cases on this right, express that this helps preserve the right to remain silent but the right to counsel also ensures that the detainee understands the process that he or she is about to encounter and allays the psychological pressure of being detained. Justice Doherty said in Rover at para 45 : [45] The right to counsel is a lifeline for detained persons.

Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated. [ 54 ] The Crown accepted in argument that Mr. Araya could have been afraid, intimidated, disassociated and confused. Mr. Araya gave compelling evidence about how he had never been arrested before, how he tried unsuccessfully to elicit any information about how

long he was going to be detained or when his right to call counsel would be answered (other than “when your arresting officer returns “ –which is not sufficient). He also however, gave evidence that he was grateful for what he did receive: a sympathetic ear from the guardon duty who tried to alleviate his boredom by providing him with a book and a magazine. [55] It is not for this Court to outline and order methods to try and ameliorate the situation of those who are arrested at thebeginning of a drug operation round up.

Indeed it was not clear in evidence that this is still the situation today – since the evidence dealtwith the arrest of Mr. Araya in 2015. However, generally, it seems to me that some further information could have been given to Mr.Araya in this situation to give him a more determinative outline of what he could anticipate in terms of timing of his incommunicadostatus. My role in this case will be to evaluate the resulting prejudice if any on his right to a fair trial or the integrity of the justice systembecause of the breach of his Charter protected interests – which I will come to later in this decision. B.

Reasonable opportunity to choose, retain and instruct counsel [56] Defence counsel argued that the informational part of Mr. Araya’s s. 10(

b) rights was also breached, because he was notafforded a proper opportunity to choose counsel. Here the phone book was ripped up so Mr. Araya had trouble finding a lawyer’s nameto call. He sought assistance from Corp. Chillog in that regard and was given the name of one lawyer, Mr. Gubbins, and ultimately hisphone number. Upon calling Legal Aid, since Mr. Gubbins’ name had been mentioned by the police, he was not given any furtherchoice by them. In effect, Mr. Araya was funneled to one lawyer, which took away his right to choose.

Providing one lawyer’s namewas not the appropriate unfettered right to counsel that Mr. Araya had the right to under s. 10(b). [57] The Crown, in reply on this informational issue submitted that there was conflicting evidence about the phone book status andthat the provision of only Mr. Gubbin’s name as a breach of s. 10(

b) was a red herring considering that Mr. Gubbins is the leadingcriminal lawyer in Grande Prairie on drug cases – so Mr. Araya was well served with this advice in the circumstances. i. The law [58] There is a plethora of cases that deal with the issue of choice of counsel. The relatively recent case of R v Wolbeck, 2010ABCA 65 is particularly on point and a

summary of the law on this issue is set out at para 20 to 22: [20] The duties of the police with respect to the rights of a detained person to consult counsel were set out in the companion cases of R. v.Prosper, (SCC), 1994 3 S.C.R. 236 (S.C.C.) and R. v Bartle (SCC), [1994] 3 S.C.R. 173 (S.C.C.). Theduties can be summarised as: (

a) 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; (

b) 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 situations); and (

c) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again , except in cases ofurgency or danger). [...] [21] There is no suggestion the respondent was not advised of his right to counsel, and of the availability of Legal Aid. That dischargedthe informational duty. The respondent was placed in a room with a telephone, a telephone book, and information about Legal Aid, andhe was given an opportunity to consult counsel in private.

That prima facie discharged the relevant implementational duty of providing areasonable opportunity to exercise the right. [22] Once the police have discharged their informational and implementational duties they are entitled to take a passive role with respectto the accused’s right to counsel. But merely because the police go further than their bare duties does not automatically mean that there isan infringement of the accused’s right to counsel.

Further involvement by the police, or gratuitous assistance rendered to the accused inexercising the right to counsel, does not equate to a breach of the Charter right. “Assistance” or “involvement” are not the same thing as“interference” or “infringement”. The determination of whether the involvement of the police is “interference” or “assistance” is onebest left to the trier of fact as it will be highly dependent on the circumstances in each case. [59] In Wolbeck, the Court of Appeal overturned the

summary conviction appeal decision that dialing the Legal Aid number forthe accused was a breach of his rights. The Court held that the accused had asked for assistance and there was no evidence that the policehad contrived in some way to make the respondent consult Legal Aid over some other lawyer. [60] Shortly after Wolbeck was decided, the Supreme Court of Canada decided R v Willier, 2010 SCC 37, where it was found thatMr. Willier’s s.10(

b) rights were not breached when he wound up taking advice from a legal aid lawyer rather than his counsel of choice,with whom he had left a message, before he was questioned. It underlined, at para 24 that “[w]hile the right to choose counsel is certainlyone facet of the guarantee under s. 10(b), the Charter does not guarantee detainees an absolute right to retain and instruct a particularcounsel at the initial investigative stage regardless of the circumstances.” In this regard the Court emphasised at para 27 that thepurpose of s. 10 (

b) amongst other things is to ensure that “detainees have an opportunity to be informed of their rights andobligations under the law and to obtain advice on how to exercise those rights and perform those obligations.” (bolding mine) [61] The burden of proving that Mr. Araya has had a “reasonable opportunity to consult counsel” is on the Crown and then theburden of proving the Charter breach turns to Mr. Araya: Wolbeck at para 12; see also R v Arias, 2015 ABQB 86 at para 30. ii. Analysis

[ 62 ] Taking a purposive approach to Mr. Araya’s situation, based on the test set out in Willier , the question becomes whether Mr. Araya obtained a reasonable opportunity to be informed of his rights and obligations under the law and how to exercise those rights and perform those obligations. Here, Mr.

Araya, despite the difficulties in obtaining lawyers’ telephone numbers in the phone book (because I accept that some of the pages in it may well have been ripped out), he was informed of his rights and obligations by both a Legal Aid lawyer, and a lawyer who was experienced in the defence of drug trafficking at this initial investigative stage. Further, he was advised and immediately helped by Mr. Gubbins with respect to exercising his rights to have a bail hearing and start the steps for his release pending trial. [ 63 ] As in the Wolbeck case, there was no suggestion that Mr.

Araya was prejudiced by not having a wider choice of counsel initially. At para 26, in pointing out the lack of prejudice the Court wrote: “This is essentially a finding that the respondent had not proven any infringement of his Charter right to consult counsel.” Considering the purpose of

section 10(

b) as elucidated in Willier , in my view the same situation applies here. [ 64 ] Having said this, I understand the defence counsel’s concerns that the choice of counsel was curtailed by the lack of a complete phone book and the appearance that Mr. Araya may have been directed improperly to call one defence counsel in particular. However, in my view the facts do not bear out this proposition. [ 65 ] Mr. Araya testified that he was confused and somewhat overwhelmed in the phone room, because this was his first experience with an arrest. He also said that Corp. Chillog was aware of his distress.

Although I accept that the phone book was missing information, it is not clear that Corp. Chillog knew this, instead he may have interpreted Mr. Araya’s concerns as stress about being in this situation and therefore was attempting to provide him assistance in providing the name of counsel he knew was experienced in the area Mr. Araya faced charges. There is no evidence that Mr. Araya asked for a new phone book, but rather that over the course of his time in the phone booth, everything he asked for was provided (numbers and pens to write with). [ 66 ] Further, once Mr. Gubbins’ name was provided, Mr.

Araya did not feel immediately compelled to call him. Instead, he called Legal Aid and spoke with a lawyer. At this point, after being given information about the steps he needed to take, he was given a choice of pursuing to call Mr. Gubbins if he wanted to, or not. At this point he had an option – he could have said no, he wanted a Legal Aid lawyer separate from Mr. Gubbins. Instead, he chose to call Mr. Gubbins. Notably, it was only after this call, according to Mr. Araya, that he asked Corp. Chilllog for Mr.

Gubbins’ number, which was provided. [ 67 ] In these circumstances, in my view, using the Wolbeck test, Corp. Chillog was not “interfering with”, or “infringing” Mr. Araya’s choice of counsel, but rather, assisting him. This is acceptable in these circumstances. [ 68 ] In my view, although it is far from ideal that a complete phone book was not available in the booth, in this situation, I am of the view that Mr. Araya’s s. 10 (

b) rights were not breached on this ground. Mr. Araya was given a reasonable opportunity in these circumstances to consult counsel and he was successful in contacting counsel and being informed of his rights and obligations, and assistance in exercising those rights, in this initial investigative stage. C. Whether a stay of proceedings is warranted [ 69 ] Defence counsel seeks a stay of the charges against Mr. Araya because of the s. 10(

b) Charter breach. She suggested in her application that this was pursuant to s 24(2), but indicated in oral argument that she was not seeking any evidentiary relief, but rather a stay under s. 24(1). Although not necessarily determinative, there was no statement taken or evidence garnered related to the delay breach. [ 70 ] The Crown argued that the remedy for the breach in terms of delay should not be a stay – that the test and its requirements in this regard, as set out in R v Babos , 2014 SCC 16 as I will come to, have not been met (see also R v Tober , 2015 ABQB 398 ).

The breach was a minor one done in the circumstances. He suggested that possibly any breach could be revisited in terms of sentencing should Mr. Araya be found guilty of any of the charges he faces. He also pointed out that he was unaware of any breach of s. 10(

b) which has resulted in a remedy of a stay of the case. i. Analysis [ 71 ] As set out in Babos , and reiterated recently by our Court of Appeal in R v Mamouni , 2017 ABCA 347 at para 37 , leave to appeal to SCC refused, 38091 (27 September, 2018) a stay of proceedings will only be warranted on rare occasions and in the “clearest of cases”. Firstly where state conduct compromises the fairness of the accused’s right to a fair trial and secondly, where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process.

The test for both of these categories is the same: 1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” 2) There must be no alternative remedy capable of redressing the prejudice; and 3) Where there is still uncertainty over whether a stay is warranted after steps 1 and 2, there must be a balancing of the interests including that of denouncing misconduct and preserving the integrity of the justice system against the interest that society has in having a final decision on the merits. [ 72 ] Here, the breach of Mr.

Araya’s right to consult counsel without delay meant that he suffered stress from the unknown situation he was facing. He was unfortunately the first to be arrested in the drug operation, which meant that he had to cool his heals incommunicado for several hours without answers. Because of my finding that the delay was lawful for the first few hours however, because of the potential officer safety situation, the breach relates to a delay of 35 minutes.

[ 73 ] Applying the Babos steps, firstly, in this situation, the 35 minute delay to contact counsel certainly caused Mr. Araya some psychological stress, as pointed out in Rover , however, it will not prejudice Mr. Araya’s right to a fair trial. Police refrained from eliciting evidence before Mr. Araya consulted with counsel (or even after as far as I am aware). Nor in my view, is there any evidence of prejudice to the integrity of the justice system.

Although in this case, the rule to have one officer in charge of bringing a detainee to the phone room resulted in some delay here, on a systemic basis, it is not clear that this rule would always cause a delay, nor that this rule is in place still today. [ 74 ] Regarding the second step, I note that there is no remedy here to alleviate the psychological stress that Mr.

Araya endured, however, I also note that this harm did not result in prejudice that relates to his trial or the integrity of the justice system. [ 75 ] In any event, coming to the third step, in balancing the interests involved, the psychological stress wrongfully endured by Mr. Araya (which did not amount to prejudice as discussed), versus society’s rights to a fair trial on the serious charges that face Mr. Araya, in the circumstances of this case, does not amount to a “clear case” to warrant a stay. IV. Conclusion [ 76 ] In conclusion, I accept that Mr. Araya’s 10(

b) right to consult counsel without delay was breached by a delay of 35 minutes. However, I find that in the circumstances of this case that there will be no prejudice to Mr. Araya’s trial or to the integrity of the justice system because of the delay, and on balance I do not believe that a stay of Mr. Araya’s proceedings on this ground is warranted. [ 77 ] I also find that Mr. Araya’s right to choose counsel pursuant to s. 10(

b) was not breached in these circumstances in that he was successful in contacting counsel and being informed of his rights and obligations, and assistance in exercising those rights, in the initial investigative stage as required for Charter compliance. [ 78 ] As a result, this application is dismissed. Heard on the 23 rd and 24 th days of October, 2018. Dated at Grande Prairie, Alberta this 4 th day of December, 2018. K.M. Eidsvik J.C.Q.B.A. Appearances: Kevin J. Short for the Crown Maria Caffaro for the Accused