R. v. Neurauter Date:, 2017 BCPC 410

Citation: R. v. Neurauter Date: 20171101 2017 BCPC 410 File No: 102234 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CONNOR MATHEW JAMES NEURAUTER PUBLICATION BAN PURSUANT TO S. 486.4(2) OF THE CRIMINAL CODE RULING ON VOIR DIRE OF THE HONOURABLE JUDGE S.R. HARRISON Counsel for the Crown: Mr. Donald Mann Counsel for the Accused: Mr. Sheldon Tate and Mr. Marshall Putnam Place of Hearing: Kamloops , B.C. Date of Hearing: May 24, 25, 26 and July 25, 2017 Date of Judgment: November 1, 2017 [ 1 ] The accused, Connor Mathew James Neurauter, is charged with sexual interference contrary to s. 151 of the Criminal Code

[1] The accused, Connor Mathew James Neurauter, is charged with sexual interference contrary to s. 151 of the Criminal Codeand the possession of child pornography contrary to s. 163.1(4). [2] This is an application by the accused to exclude certain evidence gathered, he submits, in breach of his rights under subsections10 (

a) and (

b) and s. 8 of the Canadian Charter of Rights and Freedoms (the “Charter”). This evidence sought to be excluded under s.24 (2) of the Charter includes the statement provided by Mr. Neurauter to police, an iPhone seized after his arrest and the results of thesubsequent forensic examination of that device. [3] With the concurrence of counsel, the evidence on this Charter voir dire was heard concurrently with the evidence on acommon law voir dire to determine the admissibility of the accused’s statements to police. [4] The evidence detailed and discussed in those reasons, R. v.

Neurauter, 2017 BCPC 409 , 2017 B.C.P.C. 409, shouldbe read in association with these reasons. Excerpts from the Canadian Charter of Rights and Freedoms [5]

Section 8 of the Charter reads as follows: 8. Everyone has the right to be secure against unreasonable search or seizure. [6] Subsections 10 (

a) and (

b) of the Charter provide: 10. Everyone has the right on arrest or detention

a) to be informed promptly of the reasons therefor;

b) to retain and instruct counsel without delay and to be informed of that right; and c) …. [7]

Section 24 of the Charter sets out the following: 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [8] As a basic proposition, a person asserting a Charter breach bears both the initial burden of presenting evidence that his or herCharter rights or freedoms have been infringed or denied, and the ultimate burden of persuasion that there has been a Charter violation.The onus is on the accused to demonstrate on a balance of probabilities that he is entitled to a Charter remedy: Regina v.

Kutynec (ON CA), [1992] O.J. No. 347 O.C.A. In order to satisfy the balance of probabilities test, the evidence must be clear,convincing and cogent: F.H. v. McDougall, [2008] 3 S.C.R. 41, 2008 SCC 53 at para. 46. [9] Counsel for the accused submits that Mr. Neurauter’s s. 10 rights were violated by police in three ways. Those violationsalleged include the following: 1. Police failed to inform Mr. Neurauter of his s. 10 (

b) right to counsel immediately upon his arrest or detention and required himto bring with him his cellphone. This mobile phone was subsequently seized as being incidental to arrest. It is argued that the officerselicited evidence, the cellphone, from Mr. Neurauter without first complying with their obligations under s. 10 (b). 2. Police failed to inform Mr. Neurauter of the extent of his jeopardy, specifically that the officer’s investigation included theoffence of possession of child pornography. It is submitted that without knowing the extent of his jeopardy, or without knowing thecircumstances known to police, any waiver of Mr. Neurauter’s right to counsel under s. 10 (

b) is invalid. 3. Police misled the accused as to the effect of exercising his right to counsel, by telling him that if he chose to exercise his right tocounsel he would be detained for 48 hours. Counsel argued that Mr. Neurauter’s waiver of his right to counsel was based on amisunderstanding of the consequences of exercising his right to counsel and was not a valid waiver. Witness Credibility and Reliability Generally [10] Before dealing with the issues raised on behalf of Mr.

Neurauter, it bears noting that there are discrepancies and contradictionsin the accounts of the various witnesses who have given evidence on this voir dire. [11] In considering the evidence heard on the voir dire, I bear in mind the comments of Madame Justice Dillon in Bradshaw v.Stenner, 2010 BCSC 1398 , 2010 B.C.S.C. 1398.

At para. 186, she summarised some of the factors which may be considered inassessing the credibility and reliability of a witness: Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witness and theaccuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (SCC), (1919), 59 S.C.R. 452, 50D.L.R. 560 (S.C.C.)).

The art of assessment involves examination of various factors such as the ability and opportunity to observeevents, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness’ evidenceharmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the

demeanour of a witness generally (Wallace v. Davis (1926), 31 O.W.N. 202 (Ont. H.C.); Faryna v. Chorny, (BC CA),[1952] 2 D.L.R. 354 (B.C.C.A.) [Faryna]; R. v. S.(R.D.), (SCC), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)). Ultimately,the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shownto be in existence at the time (Faryna at para. 356). The Duties of Police on Arrest or Detention [12] It is well established that under Charter s. 10 (

b) the arrest or detention of a person triggers three duties on police:

a) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability oflegal aid and duty counsel;

b) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise theright (except in urgent and dangerous circumstances); 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). See R. v. Taylor, 2014 SCC 50 , 2014 S.C.C. 50 at para. 23. At para. 24, in the same case Justice Abella, in delivering thejudgment of the court, stated: The duty to inform a detained person of his or her right to counsel arises "immediately" upon arrest or detention (Regina v. Suberu, 2009SCC 33 at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee's request to speak tocounsel.

The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the firstreasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v.Luong (2000), 2000 ABCA 301 , 271 A.R. 368, at para. 12 (C.A.)). Whether a delay in facilitating access to counsel isreasonable is a factual inquiry. [13] The Crown agrees that Mr.

Neurauter was not informed of his right to counsel immediately upon his arrest or detention, that thecircumstances in this case lacked any elements of danger or urgency and did not justify the delay. It is conceded by the Crown thatpolice thereby breached Mr. Neurauter’s s. 10(

b) rights. Events at the Neurauter Residence [14] The evidence is clear that Mr. Neurauter was arrested or detained on March 30, 2016 at the door to his Kamloops residencewhen Cst. Gendron-Fafard, assisted by Cst. Dzaman, attended there for the purpose of effecting Mr. Neurauter’s arrest. Cst. Gendron-Fafard related that Mr. Neurauter came to the front door of the residence at 5:56 p.m. and was advised that he was under arrest for sexualinterference. [15] Mr.

Neurauter recalled in direct examination that at his house he was told that he was being investigated for sexual interference.In cross examination he said he was not sure whether he was told by the officer he was under arrest or investigation. He said “I was sostressed out that I am unable to recall the exact words that the officer was using.” Mr. Neurauter said that there were five individualspresent in the entry to the house, there were “multiple conversations occurring at the same time, lots of people freaking out.” [16] By contrast, when they reached the police car only Mr. Neurauter and Cst.

Gendron-Fafard were present. Mr. Neurauter saidthere were fewer factors contributing to his stress: “In the police car I was a hundred per cent very attentive to the conversation at thattime” (May 26, 2017, page 8.) He did not explain how being “a hundred per cent very attentive to the conversation” in the police cardove-tailed with his use of his cell phone to try to text his mother and his sister while the officer was reading him his s. 10 Charterrights. [17] Susan Neurauter, the mother of the accused, painted a different picture of the conversation in the entrance way.

Susan Neurauterrecalled that the first thing police said to her son was to the effect that he would have to come “downtown” to answer some questions.She disagreed that there were multiple overlapping conversations and she remarked in her evidence on the long silences. A question byher daughter broke a silence, she said. [18] The accused’s sister, Ashley Neurauter, and his mother both recalled that one of the officers, seemingly Cst. Dzaman, said thatMr. Neurauter was being charged with sexual interference. Susan Neurauter recalled or concluded with some certainty that her son wasnot told he was under arrest.

She would have remembered that. [19] The words “investigate”, “arrest” and “charge” are not interchangeable. They are expressions of particular meaning toexperienced police officers, as Cst. Gendron-Fafard made clear. They may be less familiar to lay people trying to recall months after thefact details of a particular conversation taking place in stressful circumstances. [20] Susan Neurauter stated that some of her understanding of these matters was derived from watching television and films. When acharacter was arrested this was followed by a reading of rights.

She was certain as to the words used more than a year after the event andwhich she recalled without the benefit of any notes to refresh her recollection. [21] I consider the evidence of the officers to be more reliable on this issue, specifically that Mr. Neurauter was told at the house byCst. Gendron-Fafard that he was under arrest for sexual interference, and not that he was being charged with or investigated for sexualinterference or just that he would have to come downtown to answer some questions. [22] Cst. Gendron-Fafard’s plan, as discussed with his supervisor, was to arrest Mr.

Neurauter for sexual interference, conduct aninterview with him at the detachment and release him on police bail. Cst. Dzaman confirmed his understanding that he was present toassist Cst. Gendron-Fafard with an arrest for sexual interference.

[ 23 ] In relation to the timing of events, it is clear that very soon after police arrival at 5:56 p.m., Mr. Neurauter was arrested for the offence of sexual interference. He was not immediately told of his right to retain and instruct counsel without delay. The parties are agreed that this informational failure amounted to a breach of Mr. Neurauter’s rights under Charter s. 10 (b) .

The Cell Phone [ 24 ] Reference has been made to the obligation on police to refrain from eliciting evidence from a detainee until that person has had a reasonable opportunity to exercise the right to retain and instruct counsel. [ 25 ] Counsel for the accused submits that Cst. Gendron-Fafard did not refrain from eliciting evidence from Mr. Neurauter before informing him of his s. 10 (

b) Charter rights to counsel and giving him a reasonable opportunity to exercise those rights. The evidence underpinning this submission comes primarily from Mr. Neurauter, Susan Neurauter and Ashley Neurauter. [ 26 ] Mr. Neurauter testified that as he was getting ready to leave with the officers, he put his footwear on and one of the officers asked him if he was ready to go. Mr. Neurauter said he thought so, but said that the officer shook his head and told him he would need his wallet as well as his cell phone. Mr. Neurauter said he took this as a command and went to his downstairs bedroom to retrieve both.

He retrieved his cell phone and his wallet and returned to the front door where the others were. He left with the police soon after. [ 27 ] In cross examination (May 25, 2017, page 33), Mr. Neurauter said he was not sure what time his sister’s hockey game was to start that evening or where it was being played. Mr. Neurauter was then asked the following: Q So how were you expecting to find those things out after you left that residence? A Well, that is actually why I took my cell phone, Your Honour. Q That was why you took the cellphone. A Or partially, yeah. I mean, I needed it for several reasons.

Q So really it was your idea to take the cellphone. A I would disagree. I was ordered to retrieve the cellphone by a police officer, Your Honour. [ 28 ] In this short exchange, Mr. Neurauter swings across a variety of reasons why he had his cell phone with him when he left.

He says that finding the time and venue of the hockey game was “actually why I took my cell phone”; then it was “or partially” why he took it, “I needed it for several reasons”; and finally a reversion to “I was ordered to retrieve the cell phone by a police officer.” [ 29 ] Susan Neurauter recalled that her son was pulling his boots on by the door. He was asked by the “first” officer, plainly Cst. Gendron-Fafard, if he was all set. Her son said he was. The officer then asked him if he had everything he needed. Mr. Neurauter said he thought so. The officer said, “You’re going to need your wallet and phone.” Mr.

Neurauter went to get them, she said. Susan Neurauter did not see her son with the items but assumed that he had retrieved them when he returned. [ 30 ] Again, Susan Neurauter was certain as to the use of those words more than a year after the event and without the benefit of any notes to refresh her memory. She was asked in cross examination (May 26, 2017, page 51) whether there was any chance that she might not have the exact order of the conversation at the door, or the exact wording of the conversation. [ 31 ] Susan Neurauter responded: A I was standing within five feet of them. I remember it pretty clearly.

I mean, it’s -- it seemed like everything slowed down. I remember it very, very clearly. Q Okay. You seem to be able to say exact words, yet -- and you’re indicating as if this was a verbatim account of what had finally occurred. A I mean, I -- if there was an extra word in there somewhere, but honestly that was what I heard, those words said in that order. [ 32 ] Mr. Neurauter’s, Ashley Neurauter, a high school student, said that when the officers arrived they asked to see Mr. Neurauter.

When her brother came down the stairs they said that he was being “charged for sexual interference” and that he was going to have to come with them. Ashley Neurauter said the officer asked if he, Mr. Neurauter, was ready to go and Mr. Neurauter said yes, he was. [ 33 ] Ashley Neurauter said in evidence, “And then the officers asked him to go get his phone and his wallet, which he did, and he went into the basement living area….” Ashley Neurauter spoke to an officer about her hockey game and how she wanted her brother to be there to watch. He said he didn’t know but he wished her luck. Mr.

Neurauter returned and the officer again asked him if he was ready to go. He said “yes” and the officers took him out the door. [ 34 ] When counsel for Mr. Neurauter asked her about the tone of the police request, whether it was a request or a command, she said “I’d say more of a command…He did what he was told.” [ 35 ] The evidence of Cst. Gendron-Fafard was to the contrary. He recalled in evidence that before they departed the residence, Mr. Neurauter wanted to go to his bedroom to obtain his effects. Mr. Neurauter was allowed to go to his bedroom with the constable following a metre or two behind him. Cst.

Gendron-Fafard gave evidence that he either could not see or could not recall what those retrieved effects were. [ 36 ] Cst. Gendron-Fafard did not have any recall of asking or directing Mr. Neurauter to bring his wallet and cell phone with him but ultimately allowed that it could be possible that he did so. In allowing the possibility, I did not understand Cst. Gendron-Fafard to be

agreeing that it was likely that had happened. [ 37 ] In cross examination, counsel for the accused established that Cst. Gendron-Fafard was aware that the allegations of the complainants included Mr. Neurauter’s use of a cell phone in connection with the complaints. Cst. Gendron-Fafard understood that this cell phone would likely contain evidence useful to the investigation. [ 38 ] The constable agreed that he was interested in locating the cell phone. In re-examination, Cst.

Gendron-Fafard said that if the cell phone had not been located on the accused’s person, he had planned to ask the accused of its location during the interview. He would then have made efforts to obtain a warrant to search for the cell phone. He was also aware that a search warrant would be needed in any event to search the contents of Mr. Neurauter’s cell phone. Events in the Police Car [ 39 ] Mr. Neurauter was removed from his residence to the police vehicle and was placed in the rear seat on the driver’s side. At 5:59 p.m., three or four minutes after the initial arrest, Cst.

Gendron-Fafard was seated in the driver’s seat and formally advised the accused of his s. 10 (

a) and (

b) Charter rights from a prepared card. [ 40 ] Cst. Gendron-Fafard read from the card the following: I am arresting for you for sexual interference. It is my duty to inform you that you have the right to retain and instruct counsel in private without delay. You may call any lawyer you want. There is a 24 hour telephone service available which provides a legal aid duty lawyer who can give you legal advice in private. This advice is given without charge and a lawyer can explain the Legal Aid plan to you. If you wish to contact a Legal Aid duty lawyer, I can provide you with a telephone number.

Do you understand? [ 41 ] At this point, Cst. Gendron-Fafard said he looked to see whether Mr. Neuruauter understood his s. 10 (

b) rights and discovered that the accused was operating his cell phone in the rear seat of the police vehicle. The officer got out of the vehicle and asked Mr. Neurauter to turn over the device, which Cst. Gendron-Fafard then powered off and secured. The constable regarded this as a search incidental to arrest. The time was then 6:00 p.m. [ 42 ] Cst. Gendron-Fafard said in evidence that he then asked Mr. Neurauter whether he wanted to call a lawyer. The officer noted the accused’s response verbatim: “I just wanna hurry up you did this in. No, I don’t want one.” The constable took this to be a waiver by Mr.

Neurauter of his right to consult with counsel. [ 43 ] Mr. Neurauter agreed that he declined to speak with a lawyer but related an entirely different conversation with the officer leading up to that. The accused said that when he was asked whether he wanted to call a lawyer, he replied by asking whether legal counsel would “expediate” the process of getting himself to his sister’s hockey game. [ 44 ] He said that Cst. Gendron-Fafard then told him that if he contacted counsel he would be detained for 48 hours. Mr.

Neurauter didn’t question the officer about this assertion and replied only that he wouldn’t require a lawyer. He didn’t raise the matter when he his right to consult with counsel was brought up by the constable during the taking of the recorded statement. [ 45 ] The constable flatly denied telling Mr. Neurauter that he would be detained for 48 hours if he spoke with a lawyer and emphasized his understanding that he knew of no means of detaining an accused beyond 24 hours without appearing with the accused before a justice. [ 46 ] This allegation and the credibility of Mr. Neurauter and Cst.

Gendron-Fafard is discussed in the context of admissibility of a statement at common law in paras. 19 and 63 - 72 of the earlier R. v. Neurauter reasons. [ 47 ] In cross examination (May 26, 2017, page 10) Mr. Neurauter gave evidence on the voir dire as follows: Q Okay. So it’s fair to say that in the police car you were still overwhelmed and that may well have affected your ability to recall these events? A I believe that I can recall the events in the police car with some certainty, Your Honour. Q And were you concerned at that point as to how this allegation of sexual interference arose?

In other words, who might have made this allegation against you? A I was, yes. I was also concerned that my mother and sister had been informed of it and I was trying to contact them with my cell phone at the time. Q And again, did you think to ask the officer at that point where this allegation had come from? A I -- again, I was very overwhelmed and I tried -- limited my answers to yes or no, so I cannot say with certainty, then. Q So you didn’t ask that?

A I don’t believe that I asked him, no. [ 48 ] In a relatively short space of time, the accused said in evidence that 1) there were fewer factors contributing to his stress in the police car (compared to his home), 2) he was “a hundred per cent very attentive to the conversation” in the officer’s vehicle, 3) he believed that he could “recall the events in the police car with some certainty” but then went on to say that while in the police car, he was “very overwhelmed” and could not “say with certainty” whether he had asked the officer a question central to his concerns, “Where had

this allegation come from?” [49] This extract reflects a recurring difficulty I had with the voir dire evidence of Mr. Neurauter. There were occasions when onewas left with the impression that his evidence was contrived to give what the accused felt was a good answer to a question rather than atruthful one. [50] Another example of this sort of answer is commented on in R. v. Neurauter at paras. 69 - 72 after Mr.

Neurauter gave inevidence (May 26, 2017, pages 18-19) a response reflecting that he had considered information he admittedly did not then know,specifically that the allegations of the complainants had arisen out of events which had occurred three years before. That is discussedfurther below. [51] Counsel for Mr. Neurauter submitted that the lack of comprehensive notes taken by police officers regarding eventssurrounding the arrest of Mr. Neurauter diminished the reliability of the officers’ evidence. Reference was made to R. v.

Givens 2009BCSC 824 , 2009 B.C.S.C. 824 where Justice Chamberlist, in the context of an impaired driving/breath refusal case, and afterreviewing the law, found that a failure to note significant investigative events in those circumstances created doubts about the reliabilityof the investigator’s evidence. Counsel submitted that the evidence of Mr. Neurauter, supported by the evidence of his mother and sister,should be preferred over that of the police officers. [52] Counsel for Mr. Neurauter also submitted that Cst. Gendron-Fafard had expressly directed Mr.

Neurauter to bring his cell phoneso that he could seize the phone ostensibly as an incident to the arrest of Mr. Neurauter and without need of a search warrant. This was acontrivance, it was suggested, which was in further breach of Mr. Neurauter’s s. 10 (

b) and s. 8 rights. [53] The Crown submitted that notwithstanding that police had breached Mr. Neurauter’s s. 10 (

b) rights by not informing him of hisright to counsel immediately upon arrest, the accused had not established a foundation for the theory that police had deliberatelyinstructed the accused to retrieve his cell phone for the purpose of seizing it without a warrant. [54] The Crown urged that the evidence of Mr. Neurauter, his mother and his sister to the effect that Cst. Gendron-Fafard haddirected Mr. Neurauter to get his cell phone before leaving the residence should not be accepted at face value.

Crown counsel describedit as odd that, without the benefit of contemporaneous notes, each of the three Neurauter witnesses were able to remember the exactnature of the officer’s words in directing the accused to get his phone and his wallet after almost 14 months after the event. SusanNeurauter gave evidence to the effect that she was recounting a virtually verbatim dialogue between the officer and her son. [55] It will be recalled that in cross examination, the accused was asked how he planned to find out the game time and location afterhe left the house. Mr.

Neurauter’s reply, “Well, that is actually why I took my cell phone,” contradicted and undercut his assertion that hewas directed to take it with him by police officers. [56] It was also submitted by Crown counsel that if Cst. Gendron-Fafard had gone to the length of manipulating Mr. Neurauter inorder to have him bring his phone with him, it would surely be expected that the officer would have made it a priority to seize the cellphone at the first available opportunity.

On the evidence, the constable did not know any more than Susan Neurauter did, whether Mr.Neurauter had retrieved his cell phone and brought it with him. The officer did not ask Mr. Neurauter to produce his mobile device;neither did he conduct a search of Mr. Neurauter. All of this might have been done by the constable before he placed the accused in thecar. Instead, Cst. Gendron-Fafard, placed Mr. Neurauter in the rear seat and proceeded to fulfil the informational component of Mr.Neurauter’s s. 10 rights.

The constable seized the cell phone only after it had become apparent that the accused had both produced andused the device in the car. [57] The evidence, it was argued on behalf of Mr. Neurauter, established that there was a deception by Cst. Gendron-Fafard whenMr. Neurauter, after being arrested or detained, was directed to obtain his cell phone, so that it would be available to police to seize lateras an incident to arrest. The effect of this, it was submitted, was that police effectively elicited evidence from Mr.

Neurauter beforecomplying with their obligations, specifically to ensure that he was fully apprised of all the components of his s. 10 (

b) right to counseland that he had a reasonable opportunity to exercise those rights if he so wished. [58] However, on considering all the evidence on the voir dire, I do not find the factual basis for this theory to have beenestablished. The evidence given and relied upon by the accused is not persuasive. It is not clear, convincing or cogent and I am notprepared to find it proven on the lower standard that the police directed Mr. Neurauter to take his cell phone into his possession and bringit with him when he left his residence.

Waiver of the Right to Counsel [59] Crown counsel in written argument fairly summarised the law relating to the waiver of a detainee’s right to counsel: 20. Any waiver of the right to counsel must be clear and unequivocal; made with full knowledge of the right. The detainee mustunderstand the right, understand the means by which the right may be exercised and must advert to it. A waiver must be free andvoluntary. It cannot be the product of direct or indirect compulsion by police.

When the Crown alleges a waiver of the right to counsel inresponding to an alleged infringement, it must establish waiver on a balance of probabilities. R. v. Prosper, (SCC),[1994] 3 S.C.R. 236; R. v. Young, (1997) (ON CA), 116 C.C.C. (3d) 350 (Ont. C.A.) [60] Although it is not disputed that the accused here declined offers by Cst. Gendron-Fafard to speak to a lawyer, counsel on hisbehalf has asserted that this did not amount to a valid waiver of his right to consult with counsel for two reasons. [61] Counsel for the accused submitted firstly that the constable failed to inform Mr.

Neurauter of the extent of his legal jeopardy“and ensuring he had the requisite knowledge of all the circumstances of the investigation known by the RCMP”, prior to asking if hewished to retain and instruct counsel. [62] In R. v. Smith, (SCC), [1991] 1 S.C.R. 714 at pages 728 - 729, paragraphs 26 - 28 , Justice McLachlin speaking

for the court wrote: 26. These cases establish that, regardless of whether the focus is on the sufficiency of the initial s. 10 (

b) advice or on the waiver, what is required is that the accused understand generally the jeopardy in which he or she finds himself and appreciate the consequences of deciding for or against counsel. They rest on the common sense proposition that sometimes a lawyer is more important than at other times. Many might choose to do without counsel on a traffic charge. Many fewer would make the same decision if faced with murder. 27. It has never been suggested, however, that full information is required for a valid waiver.

Indeed, if this were the case, waivers would seldom be valid, since the police typically do not know the whole story when the accused is arrested. Nor is the failure of the police to precisely identify the charge faced in the words of the Criminal Code necessarily fatal. In the initial stages of an investigation the police themselves may not know the precise offence with which the accused will be charged. Moreover, the words of the Code may be less helpful to a lay person than more common parlance in communicating the extent of jeopardy.

Finally, the degree of awareness which the accused may be reasonably assumed to possess in all the circumstances may play a role in determining whether what the police said was sufficient to bring home to him the extent of his jeopardy and the consequences of declining his right to counsel. 28. The question reduces to this: in this case was the accused possessed of sufficient information to make his waiver of counsel valid?

To my mind, to establish [page729] a valid waiver of the right to counsel the trial judge must be satisfied that in all the circumstances revealed by the evidence the accused generally understood the sort of jeopardy he faced when he or she made the decision to dispense with counsel. The accused need not be aware of the precise charge faced. Nor need the accused be made aware of all the factual details of the case. What is required is that he or she be possessed of sufficient information to allow making an informed and appropriate decision as to whether to speak to a lawyer or not.

The emphasis should be on the reality of the total situation as it impacts on the understanding of the accused, rather than on technical detail of what the accused may or may not have been told. [ 63 ] It is not correct to say, as the accused has argued, that police were required to ensure that that the accused had “knowledge of all the circumstances of the investigation known by the RCMP”. [ 64 ] In this case, the accused had been informed that he had been arrested for “sexual interference.” Mr. Neurauter is a bright, well- educated young adult.

If he was not familiar with all of the essential elements of the offence of sexual interference set out in s. 151 of the Criminal Code , I’m satisfied he understood that he’d been arrested for the commission of a sexual offence, that he was being accused of serious criminal misconduct and that the sort of jeopardy he faced was potentially substantial.

Those salient features would not have been changed considerably had he also been informed of the possibilities relating to possession of child pornography arising out of the same investigation. [ 65 ] This is not a circumstance where the investigation is fundamentally transformed after a waiver is given, such as where a victim has died or where a drug investigation becomes a murder investigation. [ 66 ] This investigation of the offence of sexual interference lay at the heart of the police investigation and the child pornography aspect of the investigation was described in Crown submissions as being of secondary importance to the allegations of sexual interference with an underage complainant.

The same might be said or other related offences which may have suggested themselves, such as extortion. [ 67 ] The question posed by Justice McLachlin in R. v. Smith was whether the accused was possessed of sufficient information to make his waiver of counsel valid. To find a valid waiver of the right to counsel to be established, the judge must be satisfied that in all the circumstances revealed by the evidence the accused generally understood the sort of jeopardy he faced when he made the decision to dispense with counsel. [ 68 ] I am satisfied in all the circumstances that Mr.

Neurauter was properly informed of the extent of his jeopardy and generally understood the sort of jeopardy he faced before he made the decision to waive his right to consult with counsel. [ 69 ] The second footing upon which the accused has argued the invalidity of the waiver of the right to counsel related to the accused’s allegation that Cst. Gendron-Fafard told him that he would be held in custody for 48 hours if he elected to speak with a lawyer. [ 70 ] I agree with both counsel that such a misleading statement, if made, would amount to a

section 10 (

b) breach and would nullify any waiver of the right to consult with counsel. [ 71 ] I have already referenced my comments at paras. 63 - 72 of R. v. Neurauter . They have application here: 63. The second point submitted by the accused was that Cst. Gendron-Fafard made a threat to Mr. Neurauter. The evidence of this threat was found in the testimony of the accused where, after first being advised of his right to counsel in the police vehicle, he said he asked the officer, in effect, whether contact with legal counsel would expedite the process. He said that Cst.

Gendron-Fafard told him that if he contacted counsel he would be detained for 48 hours. This was the threat, it was submitted. 64. Mr. Neurauter said he didn’t question this assertion and replied only that he wouldn’t require a lawyer. Neither did he raise the matter when his right to consult with counsel was discussed again during the taking of the recorded statement. 65. Counsel for Mr. Neurauter asserts that this exchange relating to a 48 hour detention ties in with the implicit quid pro quo arrangement alleged above.

The additional message said to be conveyed to the accused by this was that if he spoke to a lawyer he’d be held for two days, but if he cooperated, he could depart in time to see the hockey game. Counsel framed the argument as both a threat and as oppressive conduct. 66. There would be some force to the argument if the evidence was accepted as a true reflection of what Cst. Gendron-Fafard said to Mr. Neurauter. However, I do not accept the evidence of Mr. Neurauter on this issue. 67. Rather, I accept the evidence of Cst. Gendron-Fafard that he did not threaten to detain the accused for 48 hours if he spoke to a

lawyer. In these circumstances, it would have been a cynical manipulation for the constable to make such a threat. The threat, if it wasmade, could easily have come to light on the recording of the formal statement, not least when the constable initiated another discussionwith the accused regarding the availability of a consultation with a lawyer if he wanted one. 68. Cst. Gendron-Fafard said he was not aware of any basis upon which he could have detained the accused for 48 hours withoutbringing him before a justice.

His stated intention to the accused was to release him as soon as they were finished at the detachment.Such a high-risk assertion by the constable would have put in grave jeopardy the admissibility of any statement which followed. I acceptthe Crown submission that such an assertion would make no sense from a practical or legal perspective. 69. Reference as well must be had to the evidence of Mr. Neurauter on the point. He did not strike me as an entirely reliable witness onthis issue. In cross examination, for example, Mr.

Neurauter gave evidence that: … initially I was interested in consulting with a lawyer, as I thought it might be able to save me from the entire process and allow me tomove it to a later date so that I could assist the police with their questioning. 70.

When he was asked to explain that, he added: I thought that, as the police had told me that I was coming with them to answer questions and I was always trying to facilitate that,showed no resistance, I thought that if I was potentially in contact with a lawyer -- I mean, we’re talking about -- these charges arestemming from three years ago, so I figured why would I have to deal with that right now at my sister’s hockey game, why couldn’t I justput that off until a later day. 71. Later in cross examination, Mr. Neurauter agreed that this statement was not correct.

At the time he was considering consulting alawyer he wasn’t aware of the precise nature of the charges or the time they stemmed from. “I didn’t know what the actual situation wasthat I was in trouble for,” he said. 72. In the result, I accept the evidence of Cst. Gendron-Fafard on this issue where it conflicts with that of Mr. Neurauter. [72] I did not find Mr.

Neurauter’s evidence sufficiently persuasive to raise a reasonable doubt on a voluntariness voir dire and I havenot found it any more persuasive in the circumstances of this Charter voir dire. [73] At the start of the recorded statement the accused confirmed that he had said earlier that he did not want to speak with a lawyer.He was then invited to let Cst. Gendron-Fafard know if he changed his mind at any point and was told that a consultation with a lawyerwould be arranged.

He did not raise any question or concerns with the officer about a 48 hour period of detention in the event he chose tospeak with a lawyer. [74] I’m satisfied that Cst. Gendron-Fafard did not make the remarks attributed to him by Mr. Neurauter. Mr. Neurauter’s waiver ofhis right to speak with counsel was freely and voluntarily given. He understood the right and understood the means by which that rightcould be exercised.

Section 8 of the Charter [75] Counsel for the accused submitted that his client’s s. 8 right to be secure against unreasonable search or seizure was breachedwhen Cst. Gendron-Fafard seized the cell phone after directing Mr. Neurauter to bring his cell phone with him. I have determined thatthe factual underpinning to that submission has not been made out. [76] Were the s. 8 rights of Mr. Neurauter to be secure against unreasonable search or seizure nonetheless breached? Mr. Neurauter’scell phone was seized without a warrant.

A warrantless seizure is presumed to be unreasonable until the Crown proves the contrary on abalance of probabilities: See Regina v. Golden, 2001 SCC 83 , 2001 S.C.C. 83, para. 84. [77] To be a reasonable search consistent with the requirements of the Charter, a search must meet three requirements: (1) thesearch must be authorized by law; (2) the authorizing law must be reasonable; and (3) the search must be conducted reasonably. SeeRegina v.

Saeed, 2016 SCC 24 , 2016 S.C.C. 24 paras. 36 and 37. [78] The well-established common law power of search and seizure incidental to arrest is an authorizing law and is a reasonableprovision.

It requires that the Crown establish only that (1) the individual searched has been lawfully arrested; (2) the search is trulyincidental to the arrest in the sense that it is for a valid law enforcement purpose related to the reasons for the arrest; and (3) the search isconducted reasonably. [79] On the evidence before me it is apparent that the constable, based on the information he had received that day, had reasonablegrounds to believe the accused had committed the indictable offence of sexual interference and that the officer was authorised to effectan arrest pursuant to s. 495 (1) (

a) of the Criminal Code. [80] The seizure of the telephone was “truly incidental to arrest in the sense that it was for a valid law enforcement purpose related tothe reasons for arrest,” specifically for the purpose of protecting, preserving and eventually discovering offence-related evidence, subjectto the later issuance of a search warrant. On the basis of his investigation to that point, Cst.

Gendron-Fafard had reasonable grounds tobelieve there would be offence related communications and images on the accused’s cell phone. [81] Lastly, the seizure was carried out in a reasonable manner with the constable merely directing Mr. Neurauter to surrender thecell phone he was then using without undertaking a search of the device until a search warrant could be applied for and issued. Mr.Neurauter was not physically searched himself at that point. [82] I am satisfied that there was no breach of Mr. Neurauter’s s. 8 Charter rights associated with the police seizure of the cellphone.

S ection 24 (2) of the Charter [ 83 ] Mr. Neurauter has established that his s. 10 rights were breached when police did not advise him immediately of his right to counsel upon his arrest. [ 84 ] The remedy offered by s. 24 (2) of the Charter , the possible exclusion of evidence, is not available anytime a breach occurs, but only where the accused has satisfied the court that the impugned evidence was obtained in a manner that infringed a Charter right. [ 85 ] In R. v. Goldhart , [1996] 2.

S.C.R. 463, the Supreme Court of Canada confirmed that a court facing such an application must have regard to the entire relationship between the breach and the obtaining of the evidence. Particular attention should be given to both the causal and temporal connections. If there is no causal link or the link is tenuous, it may be concluded that the evidence was not obtained in a manner infringing a Charter right.

However, where there is a strong temporal connection, the court may consider that the Charter breach is an integral part of a single transaction and that even a weak or absent causal connection may be of no importance. [ 86 ] On the facts before me, there is no causal connection between the delay in advising the accused of his right to counsel and the seizure of his cell phone. The delay was brief and Mr.

Neurauter was advised of his right to counsel before the officer was aware that accused had and was using the mobile device. [ 87 ] In terms of temporal connection, the period between breach and seizure were certainly brief, only minutes. Even so, I am not of the view that this chain of events, being: the failure of police to advise Mr. Neurauter of his rights immediately, the subsequent advice of those rights, the presentation and use of the phone by the accused and its consequent seizure by Cst. Gendron-Fafard, can be properly described as a single transaction.

The absence of the causal link between breach and the evidence is the more telling feature and more accurately delineates the events. [ 88 ] I consider that the accused’s later recorded statement to police is unrelated either causally or temporally to the breach as the breach had been remedied and the right to counsel waived and confirmed before any admissions were made by the accused. [ 89 ] While there is no doubt that the Mr.

Neurauter’s s.10 Charter rights were infringed, it has not been shown that the challenged evidence was obtained in a manner that infringed a Charter right within the meaning of s. 24 (2) . Grant Analysis [ 90 ] If I am in error in the above assessment, the second part of s. 24 (2) requires that the evidence shall be excluded “if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.” [ 91 ] A leading case in this regard is R. v. Grant , 2009 SCC 32 which sets out a three stage analysis.

The stages are summarised briefly at para. 71: 71. A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2) , viewed in a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. [ 92 ] T he more serious the Charter -infringing state conduct, the more likely that the courts will want to dissociate from the conduct. A good faith error is one thing, negligence, wilful blindness or flagrant disregard for Charter rights are something else.

Extenuating circumstances such as the need to preserve evidence that would otherwise be lost may mitigate the seriousness of police conduct. [ 93 ] The impact of the breach on the Charter -protected interests of the accused involves consideration of the impact of the infringement from the accused’s perspective. “The impact of a Charter breach may range from fleeting and technical to profoundly intrusive.” ( R. v. Grant , para 76 .) The courts will look to the interests engaged by the infringed Charter right and examine the degree to which the violation impacted on those interests.

The more intrusive the conduct, the greater the likelihood it will be regarded seriously. [ 94 ] The third consideration is society's interest in the adjudication of the case on its merits. As the court in R. v. Grant stated at para. 79 : Society generally expects that a criminal allegation will be adjudicated on its merits.

Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. [ 95 ] The courts are to look at a variety of considerations including the reliability of the evidence. The public interest in truth finding must be balanced with the integrity of the justice system.

An application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence. [ 96 ] The present case is one where the Charter breach arose from a relatively short delay in providing information regarding counsel to the accused. The delay was corrected within minutes, effectively once Mr. Neurauter was placed in the police vehicle and he was no longer in the presence of his family members.

The right breached was of primary importance but the breach itself was not a deep incursion into the rights of the accused. It was at the less serious end of the spectrum and was not calculated to and did not benefit the investigation. I agree that this more in the line of a technical breach.

[ 97 ] Turning to the evidence contained in the cell phone, it is evidence which pre-existed the breach. It is not evidence which came into existence after or as a result of the breach. Trial fairness is not likely to be affected. The actual contents of the cell phone only became available to investigators after the issuance of a later search warrant. [ 98 ] The evidence is likely to be reliable and, to the extent it is capable of corroborating or contradicting the oral evidence of trial witnesses, will have an important role in getting to the truth of the allegations. [ 99 ] In R. v.

Spencer , 2014 SCC 43 , a case involving the possession of and making available child pornography, Cromwell J. said with regard to the third stage of the Grant analysis: The offences here are serious and carry minimum prison sentences. Society has both a strong interest in the adjudication of the case and also in ensuring that the justice system remains above reproach in its treatment of those charged with these serious offences. If the evidence is excluded, the Crown will effectively have no case.

The impugned evidence (the electronic files containing child pornography) is reliable and was admitted by the defence at trial to constitute child pornography. Society undoubtedly has an interest in seeing a full and fair trial based on reliable evidence, and all the more so for a crime which implicates the safety of children. [ 100 ] Applying the Grant criteria, I refuse the application to exclude the evidence which has been the subject of this application under s. 24 (2) of the Canadian Charter of Rights and Freedoms . _______________________________ S.R. Harrison Provincial Court Judge