R. v. Dragani and Bakhtyari Date:, 2017 BCPC 407

Citation: R. v. Dragani and Bakhtyari Date: 20170727 2017 BCPC 407 File No: 240494-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. STEVEN JOHN DRAGANI and NAEIM BAKHTYARI RULING ON VOIR DIRE OF THE HONOURABLE JUDGE D. ST. PIERRE Counsel for the Crown: Gloria Ng Counsel for the Accused Dragani: Jack Thorhaug Counsel for the Accused Bakhtyari: Jonathan Desbarats

Place of Hearing: Vancouver, B.C. Dates of Hearing: May 23, 24, 25, June 2, July 4, 25, 2017 Date of Judgment: July 27, 2017 [1] This is an application by one of the accused, Mr. Bakhtyari, who seeks to exclude a statement that was taken from him after his arrest on September 7th, 2015, on the grounds that the Crown has not proven the statement to be voluntarily provided and that there wasa breach of Mr. Bakhtyari’s rights under

Section 10 of the Charter (the right to counsel). [2] At the commencement of this voir dire counsel for Mr. Dragani advised the court that he would be challenging the commonlaw voluntariness of the statement provided by his client, but that he was not alleging breaches of his client’s right under

Section 10 ofthe Charter (right to counsel). The challenge to the admissibility of the statement was later abandoned after the court heard evidence onthe voir dire. [3] I should note that counsel for Mr. Bakhtyari also advised the court that there would be an allegation of a

Section 7 Charterbreach (security of the person) due to the injuries inflicted by a police service dog, but this allegation would later be abandoned afterevidence was heard as well. [4] Both accused here are charged with eight counts under the Criminal Code. The charges range from Break and Enter, unlawfulconfinement, assault, and some firearms offences. [5] As indicated, this is what is commonly referred to as a “blended” voir dire. [6] I opted to hold a blended voir dire given the issues that were to be litigated. The same considerations apply in this case as werebefore Madame Justice Griffin in R. v.

Gilbertson, [2012] B.C.J. No. 824 (BCSC) where she states at par. 10: 10 A single, blended voir dire was held, although there were two distinct issues:

(1) The voluntariness of the accused's statement, which the Crown must prove beyond a reasonable doubt.

(2) The question of whether or not the statement was obtained as a result of the police officers' breach of the accused's Charter rights,which the accused must prove on a balance of probabilities. 11 Although these are two distinct issues, the reason the voir dire was blended to deal with both at once was because the evidencerelating to the two issues came from the same witnesses and provided overall context for each issue.

Nevertheless, I must keep in mindthat the two issues are distinct and carry differing burdens of proof. 12 For the above propositions, I rely on well-established and uncontroversial case law, including, with respect to the voluntarinessissues: R. v. B.(K.G.), (SCC), [1993] 1 S.C.R. 740; R. v. Nguyen, 2006 BCCA 397; and with respect to the Charterissue: R. v. Collins, (SCC), [1987] 1 S.C.R. 265.

BACKGROUND [7] Briefly, the case involves a 911 call received at approximately 2153 hours on September 7th, 2015, from a man who was hidinginside a residence and had relayed to the dispatcher that, what is colloquially called, a home invasion was in progress. He said that twomen (one armed with a gun) had restrained some family members. The caller relayed that he could hear crying and screaming. Understandably, this scenario resulted in a robust police response and a number of units rushed to the scene.

Shortly after arriving onscene and setting up a perimeter of police presence, two men were seen in the back yard of this residence walking away from the house. These two men are the accused before me. The Crown alleges that they were the two men responsible for the home invasion. [8] It seems clear from the evidence that once the two men became aware of the police presence near the back gate of thisresidence, they attempted to flee. Mr. Bakhtyari was apprehended by a police service dog and sustained some significant lacerations tohis leg as a result. Mr.

Dragani was apprehended after he had attempted to climb over a fence and fell injuring his head. [9] Sgt. Wong, the dog handler, did not take custody of Mr. Bakhtyari. He testified that he handed him off to Cst. Spencer whoarrested this accused and read him the Charter and Warning. Mr. Bakhtyari indicated that he understood and that he wished to speak toa lawyer. Cst. Spencer then saw a firearm nearby and guarded that while another unknown officer took over custody of Mr. Bakhtyari. Cst. Spencer could not recall any steps he took at that time to facilitate any access to counsel for Mr.

Bakhtyari. [10] With respect to Mr. Dragani, Cst. Mangat testified that he saw Mr. Dragani try to scale a fence and fall off. He said he couldhear Mr. Dragani’s head hit the pavement when he fell from the top of the fence. He said that Mr. Dragani did not appear to loseconsciousness, but did express that his head hurt. [11] Det. Rai then took custody of Mr. Dragani at 2210 hours and arrested him first for forcible confinement and then later for guncharges and robbery. He was read his Charter rights at that time and then later at 2250 hours (when he re-arrested him on the additionalcharges).

Both times he asserted that he would like to speak with counsel. [12] The two were transported to hospital arriving at 2316 hours. They were booked in by the nurse at around 2345 hours. Bothmen were treated for their injuries. There is a complete lack of any evidence as to what efforts, if any, were made to provide eitheraccused with a phone so that they could implement their right to counsel.

[ 13 ] Dr. Sedlic, a diagnostic radiologist, testified that he interpreted a CT scan that had been performed on Mr. Dragani. His opinion was that his injury was a fairly mild one only involving a hematoma (bruise) on the scalp. [ 14 ] Cst. Wardrop attended VGH to take photos of Mr. Bakhtyari’s injuries at 0200 hours. He observed that his right thigh was bandaged with blood seeping through the dressings. Those photos are part of some Admissions of Fact that were entered on this voir dire (Exhibit I).

He was provided with some Tylenol 3 painkillers at 0435 hours. [ 15 ] After returning to the detachment they were booked in at approximately 0509 hours. Cst. Read, the jail guard at the time, made a call to legal counsel for Mr. Bakhtyari at 0536 hours, Mr. Marvin Stern, and left a message to call. There is no record that Mr. Stern’s office ever returned that call. [ 16 ] They are lodged into cells after being booked in. The video of the accused as they spend time in their cells is marked as Exhibit N in these proceedings. [ 17 ] Mr.

Bakhtyari can be seen on the video in the cell where he was held for several hours before being taken for an interview with Det. Russell. He is still dressed in a thin hospital gown with the back untied and his underwear visible. It is a bare room and he is not apparently provided a blanket. Interactions between Bakhtyari and Det. Russell [ 18 ] Detective Russell’s goal was to attempt to obtain a statement from Mr. Bakhtyari. He reviewed the log books and discovered that the accused had not spoken to counsel yet. This was confirmed by Mr. Bakhtyari when he was spoken to. [ 19 ] With respect to his injuries, Det.

Russell testified that he examined the bandage and that Mr. Bakhtyari wished to have the bandages replaced. He conceded that Mr. Bakhtyari would talk about the pain he was feeling, but that overall Det. Russell did not believe that the injury was in any way compromising their ability to communicate effectively with each other. [ 20 ] Det. Russell employed an arrest script when he dealt with Mr. Bakhtyari (See Exhibit A). That document indicates that Det. Russell advised the accused he was under arrest for four offences.

He asked the accused if he wanted to call a lawyer and the answer recorded on that document is, “no, later for bail hearing”. The time was 0849 hours on September 8 th , 2015. The jail log indicates that he was out of his cell for “interview” at 0758 hours. What precisely was happening between that time and the time Det. Russell indicated that he escorted the accused (0841 hours) is not clear. [ 21 ] The jail log (Exhibit

F) indicates that a message had been left for legal aid at 0520 hours. [ 22 ] The audio of Det. Russell’s escort, his subsequent interview of the accused and his escort back to cells were recorded and are transcribed in Exhibit B. [ 23 ] Det. Russell does concede that there was some conversation at their initial introduction that was not recorded. He testified that at that time Mr. Bakhtyari made it clear that his biggest concern was having a bail hearing and that he had indicated that he did not need to speak to Mr. Stern right away but would require him for a bail hearing.

There are no notes of this interchange nor does Det. Russell recall the precise words that were spoken during this period of time. [ 24 ] In light of the fact that the right to counsel had been earlier asserted and was now purportedly being given up the precise details of this conversation are extremely important. [ 25 ] In the first exchange (going over the arrest script) that is recorded, Det. Russell notes that at 0536 hours there was an attempt to contact lawyer Marvin Stern. Mr. Stern had been specifically requested by Mr. Bakhtyari. Det. Russell says that an unreturned message was left at that time.

He then indicates that he has since spoken with Mr. Stern’s office and that he was told that Mr. Stern would be contacted and that Mr. Stern “is in court at the moment”. What that means is not clear as that call must have been made prior to 0841 hours and court does not commence until well after that. He also concedes that his call to Mr. Stern’s office probably came prior to any dealings that he had with Mr. Bakhtyari. [ 26 ] Then Det. Russell states to Mr.

Bakhtyari, “Um, and you’ve advised me that you are comfortable waiting to speak to him later regarding your bail hearing…but that you don’t need to speak to him at the moment, is that correct?” Mr. Bakhtyari answers yes. [ 27 ] Det. Russell adds, “Okay. So, again, that’s your choice. You’re comfortable waiving your right to speak with a lawyer at the moment but you’d like to speak with him later regarding your pending bail hearing…which I’ve conveyed to his office.” [ 28 ] The accused is asked, “Is that fair?” and he appears to agree with that statement.

Interview with Bakhtyari [ 29 ] The actual interview is transcribed at Tab 2 of Exhibit B. [ 30 ] It starts with noting that they were unable to contact Mr. Stern. Then the Detective says: R: Okay. And so really, you, you made it very clear to me across the street, your main concern was just dealing with, uh, this potential, um bail hearing later today. B: Yeah. R: So you, you want your lawyer for that. Okay. So we’ve, we’ve done that, which is great. Um, Mr. Stern.

So he, his office has assured me they will make him aware, um, that you’re, uh you’re down here, that you need to speak to him about your bail hearing and

that you want to, um, deal with that later today. B: Yeah R: Okay. So that’s, that’s been taken care of, which is excellent. Um, now, my other role today, was to come down here, um, and y-,um, give you an opportunity to, um, speak about what these allegations are. So, I mean, it’s pretty serious allegations. [31] He then explains that he wants to make sure that people are disclosing everything (p.2, l.28) and eventually asks him directly,“what happened to you last night”. [32] A statement was then provided by the accused. [33] It was suggested to Det. Russell that he could have placed Mr.

Bakhtyari on the phone prior to his upcoming bail hearing (thatthe Detective assumed would occur that very day). He agreed with this suggestion but also said that he did not know when the bailhearing would take place and when Mr. Stern might be available. POSITION OF THE PARTIES [34] The Defence submits that the statement provided was not voluntarily given as that term is known at common law. They alsomaintain that the police breached Mr. Bakhtyari’s

Section 10(

b) rights when they failed to provide access to counsel at the scene, failedto provide access to counsel at the hospital and improperly concluded that he had waived his right to counsel. The remedy sought underSection 24(2) for these breaches is an exclusion from evidence the statement that was obtained by Det. Russell. [35] The Crown maintains that provision of the right to counsel at the scene was not possible as there were urgent or dangerouscircumstances existing.

The Crown concedes that the failure to provide access to counsel while the accused was in the hospital for anextended period of time constitutes a technical breach of the right to counsel. However, they also maintain that later, at the detachment,Mr. Bakhtyari effectively waives his right to counsel so that the circumstances do not warrant exclusion of the statement under Section24(2) of the Charter. ANALYSIS RELATING TO VOLUNTARINESS9 [36] At common law, it is well established that the Crown must prove voluntariness beyond a reasonable doubt (see, for example, R.v.

Singh, [2007] 3 S.C.R. 405, 2007 SCC 48, at para. 25). [37] The defence is asserting that the Crown has not met the burden upon them to establish voluntariness of the statement inquestion. [38] The rules with respect to the admissibility of confessions have always been concerned with reliability. As a result, traditionallythe courts focussed on whether there were inducements, threats, or coercive action of persons in authority that caused the statement to bemade.

The courts were concerned with whether the statement had been made to a person in authority in an atmosphere free from fear ofprejudice or hope of advantage: Ibrahim v. The King, [1914] A.C. 599 (P.C.); Boudreau v. The King (1949), (SCC), 94C.C.C. 1 (S.C.C.); R. v. Fitton (1957), (SCC), 116 C.C.C. 1. [39] Over time there were developments of the confessions rule and these were explained in R. v. Oickle, 2000 SCC 38 ,[2000] S.C.J No. 38 (S.C.C.). The court says at par. 57: In

summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Fewsuspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that itis in his or her best interests to confess.

This becomes improper only when the inducements, whether standing alone or in combinationwith other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. … The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in theform of a threat or a promise. [40] I was provided with a number of cases to assist in this analysis. I am not going to refer to all the submissions that were made norto all the cases that were provided.

I do trust, however, that this analysis will explain why I have reached the conclusion that I have. [41] I have endeavoured to take into account all of the circumstances surrounding the impugned statement and ask myself if theygive rise to a reasonable doubt as to the confession’s voluntariness taking into account all of the aspects of the current jurisprudence. [42] In R. v. Koszulap (1974), (ON CA), 20 C.C.C. (2d) 193 (Ont. C.A.) the police picked up the accused anddetained him in a cell for 24 hours before obtaining an inculpatory statement.

The statement was excluded because there was nosatisfactory evidence of the treatment the accused received during that detention period. Where it can be shown by the Crown that thereis no causal connection between the detention and the statement obtained, exclusion may not be the result (See R. v. Tate, 2002 BCCA189 , [2002] B.C.J. No. 585 (B.C.CA.). In R. v. Holmes (2002), (ON CA), 169 C.C.C. (3d) 344 (Ont. C.A.)the court reaffirmed that R. v. Koszulap, supra is still the law.

To discharge its burden, the prosecution, in some way, has to leadevidence with respect to the period of time that the appellant is held in custody. [43] There is evidence from a number of witnesses as to what was generally happening with Mr. Bakhtyari while he was at thescene, at the hospital and at the detachment prior to providing a statement. The important interaction that is not properly accounted for inmy mind is the initial introduction that Mr. Bakhtyari has with Detective Russell.

During this period of time there was a materialconversation between the two that was neither recorded nor the subject of any kind of notes whatsoever.

[44] How the question of voluntariness may intersect the question of Charter breaches was discussed in the Holmes case (above) atpara. 20: The right to counsel and the voluntariness rule are complementary but are not co-extensive. As McLachlin J. held in R. v. Hebert (1990), (SCC), 57 C.C.C. (3d) 1 (S.C.C.) at 35, the state is obliged to allow the suspect to make an informed choice whether tospeak to the police. To assist the suspect in making that choice, the suspect is given the right to counsel. Proof that the suspectexercised the right to counsel as guaranteed under s. 10(

b) of the Charter of Rights and Freedoms is not, however, a proxy for proof ofvoluntariness. The trial judge must have regard to all of the circumstances when determining the voluntariness of a statement. The factthat the suspect was able to consult with a lawyer is simply one, albeit important, circumstance. As Iacobucci J. said in R. v. Oickle, atpara. 31: [I]t would be a mistake to confuse [the common law confession rule] with the protections given by the Charter.

While obviously it maybe appropriate, as in Hebert, supra, to interpret one in light of the other, it would be a mistake to assume one subsumes the other entirely. [45] Here, the Defence argues that Mr. Bakhtaryi was mistreated when he was transported from hospital to the detachment in aninjured condition, not provided proper clothes or a blanket. They assert that he was clearly pre-occupied with his injuries and that therewas, as a result, an oppressive atmosphere created prior to the police taking a statement from him. [46] In R. v.

Oickle (above) Justice Iacobucci, for the majority, pointed out at para. 58 that oppression has the potential to producefalse confessions. He referred to R. v. Hoilett, infra, as “a compelling example of oppression”. He further stated at para. 60: ... Under inhumane conditions, one can hardly be surprised if a suspect confesses purely out of a desire to escape those conditions. Sucha confession is not voluntary. For similar examples of oppressive circumstances, see R. v. Owen (1983), (NS CA), 4C.C.C. (3d) 538 (N.S.S.C.); R. v. Serack, (BC SC), [1974] 2 W.W.R. 377 (B.C.S.C.).

Without trying to indicate allthe factors that can create an atmosphere of oppression, such factors include depriving the suspect of food, clothing, water, sleep. Ormedical attention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time. [47] With respect to the issue of oppressiveness, the courts have always been concerned with balancing the accused right to silenceand the interest of the state in investigating crime. The police are given wide latitude in the persuasive techniques they may employ inorder to obtain statements from suspects in custody.

However, there are limits. [48] In this case, I agree that the police could have been more reasonable in the way they dealt with Mr. Bakhtyari who was justreturning from the hospital. He should have been provided some proper clothing to wear and been given a blanket. [49] However, those failings clearly, in my mind, did not constitute the kind of oppressive atmosphere that is spoken of in thejurisprudence. The will must be overborne by the conduct or circumstances created. I do not find that this situation falls into thatcategory. [50] The Crown has proven that Mr.

Bakhtyari provided this statement voluntarily and has met the onus on them to prove that factbeyond a reasonable doubt. RIGHT TO COUNSEL [51] Once a detainee asserts his or her right to counsel and is duly diligent in exercising it, (having been afforded a reasonableopportunity to exercise it), if the detainee indicates that he or she has changed his or her mind and no longer wants legal advice, theCrown is required to prove a valid waiver of the right to counsel.

In such a case, state authorities have an additional informationalobligation to "tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of thepolice during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he orshe has had that reasonable opportunity" (sometimes referred to as a "Prosper warning"). Absent such a warning, an infringement is madeout. (See R. v. Prosper [2010] S.C.J. No. 72 (SCC) at pages 378-79). [52] There is no doubt that initially Mr.

Bakhtyari was clear that he wished to speak to his lawyer and that he was never provided aphone for that purpose. [53] I do not find on the facts of this case that the police had an obligation to provide access to counsel at the scene of this incident.This was an emerging investigation involving violence and the reported use of firearms. It was reasonable to clear and contain the scenein an expeditious fashion. The accused were fairly quickly transported to the hospital for treatment of their injuries.

There was noindication that any officer attempted to obtain evidence from them during that period of time. [54] Once at the hospital though there was a clear obligation to provide access to counsel and Crown has conceded that. The failureto do so constitutes a clear breach of the right to counsel under

Section 10(b). WAIVER [55] The burden is on the accused to establish a violation of the rights as guaranteed by s. 10(

b) of the Charter. Where, however, thedetainee asserts the right and then apparently changes his mind, the burden of establishing an apparent waiver is on the Crown. (SeeProsper (above)). [56] In R. v. Smith (1991), (SCC), 63 C.C.C. (3d) 313 (S.C.C.), McLachlin J. stressed that the accused'sunderstanding of his or her situation is relevant to deciding whether s/he made a valid or informed waiver. She stated at p. 322: In Canada we have adopted a different approach. We take the view that the accused's understanding of his situation is relevant towhether he has made a valid and informed waiver. This approach is mandated by s. 10(

a) of the Charter, which gives the detainee theright to be promptly advised of the reasons for his or her detention. It is exemplified by three related concepts: (1) the "tainting" of a

warning as to the right to counsel by lack of information; (2) the idea that one is entitled to know "the extent of one's jeopardy", and (3)the concept of "awareness of the consequences" developed in the context of waiver. [57] In R. v. Ross, (SCC), [1989] 1 S.C.R. 3, 46 C.C.C. (3d) 129 Lamer J., as he then was wrote at page 10: ... As this court held in R. v. Manninen, (SCC), [1987] 1 S.C.R. 1233, s. 10(

b) imposes at least two duties on the policein addition to the duty to inform detainees of their rights. The first is that the police must give the accused or detained person who sowishes a reasonable opportunity to exercise the right to retain and instruct counsel without delay. The second is that the police mustrefrain from attempting to elicit evidence from the detainee until the detainee has had a reasonable opportunity to retain and instructcounsel. ... [58] In R. v. Prosper, (above), Chief Justice Lamer elaborated on the second duty on the police. At page 269 he wrote: ...

In other words, the police are obliged to "hold off" from attempting to elicit incriminatory evidence from the detainee until he or shehas had a reasonable opportunity to reach counsel. In my view, what constitutes a "reasonable opportunity" will depend on all the surrounding circumstances. ... [59] The Supreme Court of Canada has repeatedly reaffirmed the test for valid waiver of the Charter right to counsel under s. 10(b)and has indicated that the standard required for such a waiver is very high (see, for example, R. v. Prosper, (above), Clarkson v. TheQueen, (SCC), [1986] 1 S.C.R. 383, R. v.

Manninen, (SCC), [1987] 1 S.C.R. 1233 and R. v. Evans, (SCC), [1991] 1 S.C.R. 869). According to Lamer C.J., “a person who waives a right must know what he or she isgiving up if the waiver is to be valid” (Prosper, at p. 275, citing R. v. Bartle, (SCC), [1994] 3 S.C.R. 173). [60] The Crown maintains that the circumstances here establish a valid waiver of the right to counsel even though Mr. Bakhtyariinitially indicated he wished to consult counsel. [61] I cannot agree with that assertion. [62] The context of the interactions here are important. It was Detective Russell who told Mr.

Bakhtyari that he had spoken to hislawyer’s office and that they were aware that he was in custody and were aware that he wished to get some help with a bail hearing asthat was the accused’s “main” concern. On that basis Mr. Bakhtyari indicates that he is satisfied with not being able to speak to counselat that time. [63] The Crown says that the accused “knew what he was giving up”. With respect, that ignores the context of the situation. Hecouldn’t know what he was giving up because it was Det.

Russell essentially passing on information provided to him by the accused’slawyer’s office. [64] Furthermore, the Crown argues that despite the fact no formal “Prosper Warning” was provided in this case that Det. Russell’swords essentially conveyed the information required by that case. [65] Again, I disagree. [66] Det. Russell does tell Mr. Bakhtyari that anything he says may be used against him and that he does not have to talk to him(essentially the police caution).

However, the crucial component left out is the information that, having asserted his right to speak to alawyer, it is the duty of the police to hold off obtaining any incriminating evidence from him until he has had that chance. [67] In the case of R. v. Fountain, 2017 ONCA 596, Mr. Justice Paciocco deals with a similar situation. In that case the court is clearthat a police caution is not a substitute for a Prosper warning. [68] Yes, the accused must be diligent in exercising his right. However, there is no compelling evidence that he was not diligent inthis regard.

He wanted a certain lawyer and was essentially told that other people were making those calls and getting information fromthe office of that lawyer that would be relayed to him later. This is not appropriate. The accused should have been allowed to call theoffice himself and receive whatever information or advice he could get personally. It is hardly a stretch to assume that any defencelawyer’s office would have provided at least cursory advice not to do anything (i.e. speak to the police) until the lawyer has had a chanceto speak to them directly. [69] Mr.

Justice Paciocco in the Fountain (above) case also makes the following important point at par. 41: 41 Before turning to the trial judge's conception of what declining an opportunity to consult counsel entails, I will begin with theCrown's submission. If the Crown's point is that in order to trigger a Prosper warning, a detainee must decline the opportunity to consulta lawyer now and in the future, the focus is wrong. Prosper is not about waiver of the right to counsel in its entirety. It is about thewaiver of the immediate right to counsel without delay. The fact that Mr.

Fountain wanted to speak to a lawyer at some point in thefuture does not bear on whether he declined the opportunity to consult counsel without delay. [70] And this at paragraphs 50-51: 50 In this case, absent a Prosper warning, it is not possible for the Crown to meet its burden of showing that Mr. Fountain's apparentchange of mind about consulting counsel without delay was a knowing and effective waiver. There is nothing on the record to show thathe knew what he would be giving up. Indeed, Mr.

Fountain protested the continued interrogation because he did not know what hisrights were. 51 The Prosper warning should have been given, and if Mr. Fountain then persisted in declining duty counsel and waiting until the nextday to speak to his lawyer, the Crown would have been in a position to demonstrate a proper waiver. Since the Prosper warning was not

provided, the waiver finding made by the trial judge was wrong. A waiver finding could not reasonably have been made on this factualrecord. [71] For the reasons stated above, I find that there was a breach of the right to counsel here when the police failed to attend toproviding access to counsel at the hospital and then later failing to obtain a valid waiver of that right before engaging in an interrogationof the accused. SECTION 24(2) [72] There is no automatic exclusion rule as a remedy for a breach of the right to counsel.

The particular circumstances must beassessed using the Grant analysis. [73] The exclusionary paradigm is controlled by the analysis mandated by paragraph 71 of R. v. Grant, 2009 SCC 32 ,[2009] S.C.J.

No. 32: 71 When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence onsociety's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission maysend the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interestsof the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of thecase 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 determinewhether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Theseconcerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2)determination as enunciated in Collins and subsequent jurisprudence. [74] Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but at systemic concerns.

Its focusis on the long-term effect on the repute of the administration of justice. It starts with the proposition that damage has already been doneto the administration of justice by the breach and seeks to limit further damage. (Grant, at [69] and [70]). [75] The facts in Fountain (above) are not exactly the same as the ones here, no case can ever be the same as another. However, theanalysis under Section 24(2) there is clearly applicable to the case at bar and there is no material reason why it should be distinguished. [76] In the case of R. v. Taylor, 2014 SCC 50 , [2014] S.C.J.

No 50 there was a failure of the police to provide the right tocounsel at the hospital. Blood samples were taken and sought to be introduced into evidence. That evidence was excluded. The Crownsubmits that there was evidence obtained in breach of the accused’s rights there and that here there was no evidence obtained as a resultof the breach at the hospital. [77] Of course, with the findings that I have made above, the context is a different one. I have found two ways that the policebreached the right to counsel of Mr.

Bakhtyari and those breaches led directly to the statement that was obtained. [78] I would adopt the Section 24(2) analysis in the Fountain case and find that the statement obtained here was obtained in thecontext of serious and non-technical breaches of the accused’s rights to be provided access to counsel and it should be excluded fromevidence. RULING [79] The statement is inadmissible _____________________________ The Honourable Judge D. St. Pierre Provincial Court of British Columbia