R v Admasu, 2021 ABQB 149

Court of Queen’s Bench of Alberta Citation: R v Admasu, 2021 ABQB 149 Date: 20210308 Docket: 160893426Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Dagmawi Abebe Admasu Accused _______________________________________________________ Ruling on Voir Dire (Charter Notice #3) of the Honourable Mr. Justice John T. Henderson _______________________________________________________ 1.

OVERVIEW [ 1 ] On November 9, 2016, Judge Moher, a Judge of the Provincial Court of Alberta, granted a DNA Warrant (DNA Warrant #1) under s 487.05(1) of the Criminal Code authorizing a member of the Edmonton Police Service (EPS) to take samples of bodily substances from Mr. Admasu for the purpose of DNA analysis. DNA Warrant #1 was granted based on evidence contained in an Information to Obtain sworn November 9, 2016 by Det. Michelle Greening (the November 2016 ITO). DNA Warrant #1 was executed on November 17, 2016 at the Edmonton Remand Centre where Mr.

Admasu was being detained on the present charges. [ 2 ] On June 11, 2020, a second DNA warrant was granted by Judge Moher under s 487.05(1) (DNA Warrant #2) based on the evidence contained in an Information to Obtain sworn by Det. Greening on June 11, 2020 (the June 2020 ITO). The reason given by Det.

Greening for seeking DNA Warrant #2 was that the manner in which DNA Warrant #1 was executed “might be perceived as a charterconcern in trial”. [3] DNA Warrant #2 was executed at the Edmonton Remand Center on July 30, 2020. [4] On January 22, 2021, a third DNA warrant was sought by Det. Greening and granted by Judge Moher under s 487.05(1)(DNA Warrant #3). The Charter issues in relation to DNA Warrant #3 are addressed in reasons I delivered on February 23, 2021: R vAdmasu, 2021 ABQB 142.

DNA Warrant #3 is not directly relevant to the issues in the present voir dire. [5] The Crown seeks to tender the DNA analysis arising from the execution of DNA Warrant #2, but not from DNA Warrant #1. [6] The Defence submits that Mr. Admasu’s rights under s 10(

b) of the Charter were breached when police executed DNAWarrant #2 because police failed to read a Prosper waiver when Mr. Admasu changed his mind after first asserting his right to consultwith counsel without delay. Accordingly, Mr. Admasu seeks an order under s 24(2) excluding all the evidence that was obtained as aresult of the execution of DNA Warrant #2. [7] For the reasons that follow, I conclude that while executing DNA Warrant #2, members of the EPS violated Mr. Admasu’s s10(

b) right to counsel when they failed to read a Prosper waiver. What, if any, remedy flows from this breach will be determined aftercounsel have made submissions in relation to s 24(2). 2. BACKGROUND [8] Mr. Admasu is charged with first degree murder, aggravated assault and discharging a firearm with intent. [9] The Crown alleges that at or about 9:00 pm on July 23, 2016, _________xxx Daniel Holly left an apartment building innorth Edmonton and began walking toward their parked vehicle. As they were doing so, ______________approached and startedshooting xxxxxxxx at them. Mr.

Holly sustained multiple gunshot wounds to his head and torso. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. Mr. Holly died a short time later in hospital. [10] The Crown alleges that Mr. Admasu was one of xxxxxxxx shooters. [11] The Crown further alleges that xxxxxxx shooters fled the scene in xxxxxxxxxxxxxxxx xxxxxxxx mini-van xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxx Some time later, police saw a van that matched thisdescription, which led to a high-speed police pursuit. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. [12] The Crown alleges the Mr.

Admasu was one of the occupants of the van xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. [13] Following the pursuit, the van stopped and the occupants fled on foot.

Xxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. [14] DNA samples were obtained xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxx.While there were 3 DNA warrants obtained in relation to this matter, this voir dire addresses issues only in relation to DNA Warrant #2. 3. ISSUES [15] The only issue in this voir dire is whether Mr. Admasu’s rights under s 10(

b) of the Charter were violated at the time thatDNA Warrant #2 was executed. More specifically the question is whether Mr. Admasu’s rights under s. 10(

b) were violated when policefailed to read a “Prosper” waiver after Mr. Admasu changed his mind about his intention to speak with counsel. 4. ANALYSIS [16] The right to retain and instruct counsel without delay is guaranteed by s 10(

b) of the Charter. The rights arise on arrest ordetention because the concerns regarding compelled self-incrimination and interference with liberty are present as soon as detention iseffected: R v Suberu 2009 SCC 33 at para 2. [17] The rationale for s 10(

b) is the need to ensure that everyone who has been detained by the police has an opportunity to learnimmediately of his or her rights and obligations under the law. As was explained by the Supreme Court in R v Bartle, (SCC), [1994] 3 SCR 173 at 191: When an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state.

Not only has thisperson suffered a deprivation of liberty, but also this person may be at risk of incriminating him or herself. [18] When a suspect is detained, police have duties that involve both an informational component and an implementationalcomponent. The informational component requires that police advise a detainee that he or she has the right to consult with counselwithout delay and of the existence and availability of Legal Aid and duty counsel. The implementational component imposes obligationsonly after the detainee has asserted his right to counsel. At that point, the police have two obligations.

First, the police must provide the

detainee with a “reasonable opportunity” to consult with counsel. Second, police must refrain from eliciting evidence from the detainee until after the “reasonable opportunity” has been exercised. A

summary of the principles relating to s 10(

b) can be found in R v Luong , 2000 ABCA 301 at para 12 . [ 19 ] On July 30, 2020, two members of the EPS, Det. Dennis and Cst. Berney, went to the Edmonton Remand Center to execute DNA Warrant #2. When they met with Mr. Admasu, Det. Dennis read the “Adult DNA Warrant Advisory” that included a statement that advised Mr. Admasu that he was being detained for the purpose of obtaining samples of bodily substances in accordance with a DNA warrant. Mr. Admasu was in a room with an EPS member and was not free to leave to go back to his cell.

He was required by the terms of DNA Warrant #2 to submit to the demands of police to provide samples of bodily substances. As a result, he was detained and was entitled to the rights guaranteed by s 10(b). This is not contested by the Crown. [ 20 ] At 10:17 am on July 30, 2020, Det. Dennis advised Mr. Admasu of his s 10(

b) rights. In doing so, he again read from “Adult DNA Warrant Advisory” as follows: You have the right to retain and instruct a lawyer without delay. This means that before we proceed with our investigation you may call any 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 and telephone books will be provided to you.

If you are charged with an offence, you may apply to Legal Aid for assistance. [ 21 ] Immediately after reading this statement, Det. Dennis showed Mr. Admasu a copy of DNA Warrant #2 and then asked whether he understood what had been read. Mr. Admasu responded by saying that he understood but that he wanted a copy of the warrant. Det. Dennis agreed that he would provide a copy of DNA Warrant #2. He then asked Mr. Admasu whether he wanted to call a free lawyer or any other lawyer. Mr. Admasu responded by saying “No, that’s ok”. [ 22 ] After receiving this response, Det. Dennis read Mr.

Admasu a form of waiver as follows: You have the right to a reasonable opportunity to contact a lawyer. I am obliged not to take a statement from you or ask you to participate in any process that might provide evidence against you until you are certain about whether you want to exercise this right. Do you understand? [ 23 ] In response, Mr. Admasu said “Yup ... actually I want to call a lawyer”. [ 24 ] On receiving this response, Det. Dennis gave Mr. Admasu a copy of DNA Warrant #2 and also a copy of the “Adult DNA Warrant Advisory”, which had been read to him only moments before. Det.

Dennis then left the room and took steps to determine how Mr. Admasu could be permitted to have privacy to contact counsel. [ 25 ] When Det. Dennis returned to the room, Mr. Admasu asked for the telephone number of his Defence lawyer. To respond to this request, Det. Dennis asked a Remand Centre guard to “Google” the name of the Defence counsel. This was done and a telephone number was recorded on a yellow sticky and provided to Mr. Admasu. [ 26 ] Det. Dennis and the Remand Center guard then checked to ensure that the telephone in the room was operational and capable of making long distance calls.

When they were satisfied that the telephone was working properly, the recording equipment was shut off and Mr. Admasu was given privacy so that he could speak to counsel. This was at 10:24 am. [ 27 ] As it turns out, the number on the yellow sticky that was provided to Mr. Admasu did not contain the correct telephone number for his Defence counsel. [ 28 ] There is no evidence that the room in which Mr. Admasu attempted to exercise his right to counsel had a telephone book or a poster or other information regarding the Legal Aid telephone number.

The Crown fairly conceded that because the DNA warrant was not executed at a police station but instead at the Edmonton Remand Centre, a traditional telephone room was not used and thus Mr. Admasu did not have access to phone books or the legal aid telephone number or poster. [ 29 ] At 10:25 am, just one minute after being placed in the room with the incorrect telephone number, Mr. Admasu motioned to police through the window and Det. Dennis entered the room. Mr. Admasu told police that he had not been successful in reaching his counsel. Det. Dennis asked Mr. Admasu if he wanted to try again but Ms.

Admasu said he was “alright”. Det. Dennis then asked Mr. Admasu a series of questions as follows: Det. Dennis: Are you satisfied right now that you haven’t been able to talk to him? Mr. Admasu: Yup. Yes Det. Dennis: Okay so do you have any questions for myself or Cst. Berney before we start? Mr. Admasu: No I don’t. Det. Dennis: No, okay. [ 30 ] Police did not read Mr. Admasu a Prosper waiver at that time. Instead, at 10:30 am they simply executed DNA Warrant #2 and obtained samples of the bodily substances that were then sent for forensic analysis. [ 31 ] The Defence argues that because Mr.

Admasu changed his mind after asserting his right to consult with counsel, police were obligated to provide a Prosper waiver before taking any steps to execute the warrant. The Defence argues that the failure to do so amounts to a violation of the rights guaranteed by s 10(b). The Crown does not contest the general proposition that police have an

obligation to provide a Prosper waiver to detainees when they change their mind in relation to consulting with counsel. However, theCrown argues that, in the circumstances of this case, there was no need for a Prosper waiver for two reasons. First, because Mr. Admasuwas not reasonably diligent when exercising his right to counsel. Second, he already had been read a Prosper Waiver less than 10minutes earlier and this was sufficient compliance. a.

Obligations imposed by Prosper [32] R v Prosper, (SCC), [1994] 3 SCR 236 was an impaired driving case in which the accused asserted his rightto counsel and was placed in a phone room with a working phone and a phone book. He was given privacy and began his attempts tospeak to lawyer. He placed 15 telephone calls to lawyers over approximately 37 minutes but was unsuccessful in speaking to a lawyer.He then told the police officer that he was prepared to provide the breath sample without speaking to a lawyer.

Chief Justice Lamerexplained that the accused had been diligent in trying to reach counsel and that courts must ensure that the right to counsel is not tooeasily waived. He therefore concluded that additional information needed to be provided to the accused in those circumstances. TheChief Justice described the required additional information in the following way (at para 43): ... I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right tocounsel, indicates that he or she has changed his or her mind and no longer wants legal advice.

At this point, police will be required to tellthe detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during thistime not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had thatreasonable opportunity.

This additional informational requirement on police ensures that a detainee who persists in wanting to waive theright to counsel will know what it is that he or she is actually giving up. (emphasis added) [33] The Supreme Court concluded that because the accused had been duly diligent in exercising his right to counsel and becausethe police did not provide the additional information to permit the accused to know what he was giving up by a waiver, the rights under s10(

b) had been violated. b. Was Mr. Admasu Duly Diligent in Exercising His Right to Counsel? [34] Prosper makes it clear that the s 10(

b) right to consult counsel is not absolute or unlimited. Instead, the right to counsel mustbe exercised with “due diligence” or the s 10(

b) rights will be suspended. The requirement for “due diligence” is designed to preventdetainees from frustrating legitimate investigative efforts. This was explained in R v Smith, (SCC), [1989] 2 SCR 368,99 NR 372, in the following way (at para 33): This limit on the rights of an arrested or detained person [to consult with counsel] is essential because without it, it would be possible todelay needlessly and with impunity an investigation and even, in certain cases, to allow for an essential piece of evidence to be lost,destroyed or rendered impossible to obtain.

The rights set out in the Charter, and in particular the right to retain and instruct counsel, arenot absolute and unlimited rights. They must be exercised in a way that is reconcilable with the needs of society.

An arrested or detainedperson cannot be permitted to hinder the work of the police by acting in a manner such that the police cannot adequately carry out theirtasks. [35] Where the actions of the detainee do not amount to dilatory tactics and where the delay is not for the purpose of frustratingthe investigation, then the actions will generally not be considered to be lacking in due diligence: R v Whitford, 1997 ABCA 85 at para18. [36] In the present case, Mr. Admasu was in the room alone attempting to call counsel for one minute or less. There is simply noevidence that Mr.

Admasu was attempting to frustrate police in any way. Quite the opposite, he was entirely cooperative from start tofinish. His decision to consult with his own Defence counsel was entirely reasonable. He was facing charges of first-degree murder andthe trial was scheduled to start in 6 months. He promptly used the telephone to attempt to speak to counsel, but was unsuccessful becausepolice had provided him with the wrong number. He then immediately knocked on the widow to attract the attention of police. There isno hint of delay on the part of Mr. Admasu.

There is no suggestion that he was doing anything other than attempting to call counsel. Hewas not trying to impede the investigation. [37] Many of the cases that discuss “due diligence” are situations in which the detainee sought to consult with a counsel of choicebut refused to call another lawyer when the counsel of choice was not available. R v Jones 2005 ABCA 289, is relied on by the Crownand is an illustration of this type of case. In Jones, the accused was arrested for impaired driving. He was advised of his right to speak tocounsel and said that he wanted to speak to his own lawyer.

The accused was then taken to a phone room at the police station. Afterseven minutes in the phone room, the accused knocked on the door and police noticed that he was not using the phone. The police officerentered the phone room and asked the accused whether he had spoken to counsel. He replied that he had tried to reach his lawyer but wasnot successful. The police officer advised the accused of the availability of legal aid lawyers or other lawyers but the accused refusedthis option, saying that he wanted to speak to his lawyer. The accused was then taken from the phone room and a breath sample wastaken.

The Court of Appeal concluded that the accused had not exercised due diligence, because he had the option to call duty counselbut refused. Because the accused had not been diligent, his s 10(

b) rights were not violated. [38] The circumstances of this case are much different. While in the phone room, Mr. Admasu actively sought to contact counselbut was unsuccessful. One minute in the phone room and a single call to a wrong number does not amount to a reasonable opportunity tocontact counsel. Typically, when police give a detainee access to a privacy in a phone room with a working telephone, phone books andthe Legal Aid number (usually on a poster on the wall), police will have, prima facie, satisfied the reasonable opportunity requirement: Rv Wolbeck, 2010 ABCA 65 at para 21.

In this case, the prima facie reasonable opportunity requirement was not met because Mr.Admasu was not provided with telephone books or the Legal Aid number – thus he had no ability to make his own inquiries to contactcounsel. One minute in a phone room with no telephone books and no Legal Aid number did not satisfy the reasonable opportunity

requirement. [39] Before the reasonable opportunity period expired, Mr. Admasu changed his mind and agreed to proceed without speaking tocounsel. [40] Therefore, this case does not involve a lack of diligence, it involves a change of mind after only one minute in the phoneroom. Mr. Admasu was not insisting on a continued right to speak to counsel of choice, as was the case in Jones. There was no lack ofdiligence. [41] I conclude that Mr. Admasu was “duly diligent” in his attempts to exercise his right to consult with counsel. c.

Was there Sufficient Compliance with s 10(b)? [42] The Crown argues that even though a formal Prosper waiver was not read to Mr. Admasu when he changed his mind aboutconsulting with counsel, there was nevertheless sufficient compliance with s 10(b). The Crown argues that less than 10 minutes beforechanging his mind, Mr. Admasu had been read a waiver. For this reason, the Crown argues that Mr. Admasu was fully aware of whatrights he was giving up by not taking further steps to contact counsel. The Crown notes that Courts are not required to adopt a “whollymechanistic and artificial approach” to the s 10(

b) rights: R v Smith (1999), (ON CA), 44 OR (3d) 373 at para 26, 119OAC 333, 134 CCC (3d) 453 (CA). [43] Where the Crown relies on a waiver of the right to consult with counsel, the Crown will have the burden to establish that thewaiver was unequivocal and that it was free and voluntary. The standard required for an effective waiver his high – the detainee mustknow what he or she is giving up.

These requirements were also explained in Prosper at para 44: Given the importance of the right to counsel, I would also say with respect to waiver that once a detainee asserts the right there must be aclear indication that he or she has changed his or her mind, and the burden of establishing an unequivocal waiver will be on the Crown:Ross, at pp. 11-12.

Further, the waiver must be free and voluntary and it must not be the product of either direct or indirect compulsion.This Court has indicated on numerous occasions that the standard required for an effective waiver of the right to counsel is very high:Clarkson v. The Queen, (SCC), [1986] 1 S.C.R. 383, Manninen, and Evans. As I said in Bartle, at pp. 192-94 and 206, aperson who waives a right must know what he or she is giving up if the waiver is to be valid. That being said, it stands to reason that theright to counsel guaranteed under s. 10(

b) must not be turned into an obligation on detainees to seek the advice of a lawyer. [44] This was also explained by the Ontario Court of Appeal in Smith [1999] at para 21 and also in R v Fountain, 2017 ONCA596 at para 37. [45] It is important to remember the purpose served by the Prosper waiver which was explained by the Supreme Court in R vWillier, 2010 SCC 37 at para 32: ...

This additional informational obligation, referred to in this appeal as the duty to give a “Prosper warning”, is warranted in suchcircumstances so as to ensure that a detainee is informed that their unsuccessful attempts to reach counsel did not exhaust the s. 10(b)right, to ensure that any choice to speak with the police does not derive from such a misconception, and to ensure that a decision to waivethe right to counsel is fully informed. (emphasis added) [46] The question then is whether the Crown has satisfied its onus to prove that when he agreed to provide his DNA sampleswithout consulting with counsel, Mr.

Admasu was aware that his unsuccessful attempt to contact counsel did not exhaust his s 10(b)rights and that police had an obligation to provide him with a reasonable opportunity to contact counsel and were obliged to hold off inexecuting the warrant until he had this reasonable opportunity. [47] Mr. Admasu was entitled to change his mind about talking to counsel.

He was entitled to waive the protection afforded by s10(b), but his waiver can only be effective if it was fully informed. [48] As was noted in Smith [1999] at paras 23 to 24, the question of whether a valid waiver has been given by an accused personis highly contextual. Thus, while other cases may give some examples of situations in which waivers were valid or invalid, the particularcircumstances of the case under consideration will dictate whether the Crown has met its onus. [49] I conclude that the Crown has not met the onus to prove a valid waiver in this case.

I conclude that to properly comply with s10(b), Det. Dennis was required to read a Prosper waiver to Mr. Admasu. I come to this conclusion because of the unusual constellationof circumstances that resulted in Mr. Admasu changing his mind and for the following reasons: 1) Not Advised that the single call did not exhaust right to consult with counsel As was explained by Willier, the Prosper waiver is required to ensure that a detainee who has asserted a right to counsel is informed thatan unsuccessful attempt to speak to counsel does not exhaust the s 10(

b) right. While a waiver was read to Mr. Admasu very shortly after police arrived to execute the DNA Warrant, this was before Mr. Admasuasserted his right to counsel. It was before Mr. Admasu made his single unsuccessful attempt to call Defence counsel. Thus, the waiverthat had been read to Mr. Admasu was in a different context. Mr. Admasu was never told that his single unsuccessful call did not exhaust his right to speak to counsel. This is precisely what theProsper waiver is designed to achieve. 2) No Evidence that Mr. Admasu recalled Earlier Waiver

Mr. Admasu had been read a waiver at approximately 10:17 am. He was left in privacy to make the call to counsel approximately 7 minutes later at 10:24 am, and one minute after that at 10:25, he knocked on the window to attract the attention of police. Police then entered the room and began a discussion with Mr. Adamsu. Therefore approximately 9 minutes had passed between the time of the original waiver and the time that a decision was made to provide the DNA sample. This is a relatively short time, but not nearly as short as the “few seconds” in Smith [1999]. In any event, I decline to infer that Mr.

Admasu would have remembered the content of the waiver, despite the fact that less than 10 minutes had passed. 3) Purported Waiver was not Unequivocal When Mr. Admasu knocked on the window, he immediately advised police that he was unsuccessful in reaching counsel. Det. Dennis asked Mr. Admasu if he wanted to try again but Mr. Admasu said he was “alright”. Det. Dennis then asked the following question and received a response: Q. “Are you satisfied right now that you haven’t been able to talk to him?” A. “yup, yes”. From this exchange, the Crown invites me to conclude that there was an unequivocal waiver.

However, the question asked by Det. Dennis was at best awkward and certainly not unequivocal. On one

interpretation, Mr. Admasu is doing nothing more than confirming he had not been able to speak to counsel. The Crown reads the question as essentially asking whether Mr. Admasu is satisfied that he will proceed even though he had not spoken to counsel and thus he was waiving his right to counsel. That is certainly one

interpretation – but it is not unequivocal. It does not meet the high standard to make out a valid waiver. [ 50 ] I also observe that there was no urgency in relation to the execution of DNA Warrant #2. Mr. Admasu was at all times in custody at the Edmonton Remand Center. He was available 24 hours per day to police. DNA Warrant #2 could have been executed at almost anytime. Police had waited more than one month from the time that DNA Warrant #2 had been granted to the time that it was executed. They obviously felt no urgency.

Spending another few minutes to give a Prosper waiver would not have had any impact on the case at all. Furthermore, waiting for a reasonable time to permit Mr. Admasu to contact counsel would not have impeded the police investigation in any way. [ 51 ] I acknowledge that it is not appropriate to adopt a “wholly mechanistic and artificial approach” to the s 10(

b) rights: Smith [1999] at para 46. But in this case the circumstances are very unusual. When I consider the totality of the circumstances surrounding Mr. Admasu’s right to counsel, I conclude that there was not a valid waiver of his s 10(

b) rights. 5. CONCLUSON [ 52 ] I conclude that police had an obligation to read Mr. Admasu a Prosper waiver when he changed his mind about his desire to contact counsel. This failure amounts to a breach of Mr. Admasu’s rights under s 10(

b) of the Charter in relation to the execution of DNA Warrant #2. [ 53 ] I will now entertain submissions with respect to what, if any, remedy is available to the Defence as a result of the s 10(

b) breach. Heard on the 23 rd day of February, 2021. Dated at the City of Edmonton, Alberta this 26 th day of February, 2021. John T. Henderson J.C.Q.B.A. Appearances: Anders N. Quist and Meghan Rohatyn for the Crown Clayton Rice, Q.C. and Tania Shapka

for the Accused