Her Majesty the Queen - v. -, 2019 SKPC 64

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 64 Date: November 4, 2019 Information: 90185224 Location: Humboldt _____________________________________________________________________________ Between: Her Majesty the Queen - and - Dalton Suchy Appearing: Jennifer Claxton-Viczko For the Crown Matthew Deshaye For the Accused DECISION ON CHARTER VOIR DIRE METIVIER , J [ 1 ] This is my decision on a Charter voir dire that proceeded on September 23 rd and 24 th , 2019. The Crown called two witnesses, Cst. David Burns and Cst. Nadia Soulliere. Mr.

Suchy testified on his own behalf. [ 2 ] On September 9, 2018, at approximately 5:30 p.m., Cst. Burns arrested the accused, Dalton Suchy, for sexual interference and sexual assault. Mr. Suchy was informed of his Charter rights from a pre-printed standard issue card and responded affirmatively when asked if he understood and if he wanted to call a lawyer. The police transported Mr. Suchy to the RCMP detachment in Humboldt where he provided an inculpatory audio and visual recorded statement. A transcript of the statement was marked as Exhibit P-2 on the voir

dire. [3] Mr. Suchy asserts a breach of his right to counsel under s. 10(

b) of the Charter because 1) the police interfered with his right tocontact counsel of choice, and 2) he was not provided with a reasonable opportunity to contact counsel. Accordingly, he seeks a remedypursuant to s. 24(2) of the Charter that his statement be excluded. ANALYSIS [4] The accused generally bears the onus of establishing a breach of Charter rights on a balance of probabilities. [5]

Section 10(

b) of the Charter guarantees everyone the right to retain and instruct counsel without delay and to be informed of thatright. This imposes both informational and implementational duties on the police officer. The police must inform the detainee of hisright to retain and instruct counsel without delay and of the existence and availability of Legal Aid duty counsel.

If the detainee wishesto exercise the right to counsel, he must be given a reasonable opportunity to do so, and the police must refrain from eliciting evidenceuntil he has had a reasonable opportunity to exercise that right: (R v Bartle, (SCC), [1994] 3 SCR 173 (SCC); at para 18,[Bartle]. [6] Absent special circumstances indicating that a detainee may not understand the s. 10(

b) caution, such as language difficulties ora known or obvious mental disability, police are not required to assure themselves that a detainee fully understands it. In circumstanceswhich suggest that a detainee may not understand the information being communicated to him or her, police will have to take additionalsteps to ensure that the detainee comprehends his or her 10(

b) rights (Bartle, at para 193). [7] The rights set out in the Charter are not absolute or unlimited. The obligations of the police officer to facilitate a reasonableopportunity for the detainee to contact counsel is contingent upon the detainee’s reasonable diligence in exercising the right to contactcounsel: (Bartle, at para 19; R v Willier, 2010 SCC 37, para 33 to 34 [Willier]). [8]

Section 10(

b) entitles a detainee a reasonable opportunity to contact their counsel of choice. If the chosen lawyer is notimmediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for theirlawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole and may includesuch factors as the seriousness of the charge, and the urgency of the investigation. If the chosen lawyer cannot be available within areasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer: (Willier, at para 35). [9] While compliance with s. 10(

b) does not generally require the police to facilitate a second legal consultation, there would be aright where there is a change in circumstances such as might arise from: 1) new procedures involving the detainee; 2) a change injeopardy of the detainee, or 3) reason to believe that the first information provided was deficient: (R v Sinclair, 2010 SCC 35; [2010] 2SCR 310). [10] Constable Burns testified that upon arriving at the police station, he asked Mr. Suchy what lawyer he would like to speak to, or ifhe or his family had a private lawyer. After Mr.

Suchy responded that he did not know any, Constable Burns reminded him that LegalAid duty counsel was available for free 24 hours a day. Constable Burns then asked Mr. Suchy if he would like to speak to Legal Aidand he replied “yes”. On cross-examination, Cst. Burns acknowledged that he could not recall how, or in what words, Mr. Suchy agreedto speak to Legal Aid. [11] Mr. Suchy was placed in a telephone room to speak to Legal Aid. At approximately 6:21 p.m., Cst. Burns placed a call to LegalAid duty counsel and transferred it to Mr. Suchy. The telephone call lasted no more than two minutes.

Once the telephone call wascompleted, Mr. Suchy was taken to the interview room. [12] Mr. Suchy testified that he did not recall the substance of any conversation he may have had with Cst. Burns prior to being placedinto the telephone room. However, he understood that he was taken into the room to speak to a lawyer and that he was speaking to alawyer when he picked up the telephone. [13] Mr. Suchy stated that his telephone call with the lawyer only lasted for about 30 seconds and that he did not receive any legaladvice.

He said that apart from asking for his birth date, the lawyer on the other end of the telephone did not say anything to him.

Likewise, Mr. Suchy did not say anything further to the lawyer. He acknowledged in cross-examination that he never told Cst. Burns that he did not get to speak to a lawyer, or that he was confused about exercising his right to counsel. [ 14 ] Prior to initiating an investigative interview, Cst. Burns again informed Mr. Suchy of his

section 10(

b) Charter rights. The entirety of that discussion is set out in Exhibit P-2 as follows: Cst. Burns: We’ve got lots of time. Okay. Some of this stuff I’ve already read to you. Okay? And…but…and it’ll be a bit of a repeat, but we’re …we’re just…we’re going to go through it sh…step by step here. So “You have the right to retain and instruct counsel without delay. You may call any lawyer you wish. Legal Aid duty counsel is available to provide you with immediate legal advice free of charge, and can explain the Legal Aid plan to you. I can provide you with the number, you can call free of charge.

Do you understand?” Dalton Suchy: Yeah. Cst. Burns: Do you understand that you have the right to a lawyer? Dalton Suchy: Yeah. Cst. Burns: Okay. Do you wish to call a lawyer now? I know that you just spoke with one of them on the phone. You spoke to Legal Aid? Dalton Suchy: Yeah. Cst. Burns: Uhm… would you like to speak to Legal Aid uh… right now? Dalton Suchy: And tell them everything? Cst. Burns: No, that… uh…whatever you would say to Legal Aid is between you and them.

Uhm… you just spoke to them uh… approximately ten minutes ago on the phone, but I’m asking you if you… like… like, if there was any questions you had for them uh…I can put you back on the phone with Legal Aid if you’d like to, or we can continue on. It’s up to you. Dalton Suchy: We can continue. Cst. Burns: We can continue on? Dalton Suchy: Yeah. Cst. Burns: So, uh… to the answer, “Do you wish to call a lawyer now?” is that a yes or a no? Dalton Suchy: Uhm… Cst. Burns: Like, ‘cause we can stop, and you can speak to Legal Aid again if you’d like?

Or you don’t have to talk to them if you don’t want to, but it’s your right. Dalton Suchy: He didn’t have much to say to me. Cst. Burns: Okay. Like I said… Dalton Suchy: Yeah. Cst. Burns: … whatever… whatever you two discussed, that’s between you and him. Dalton Suchy: Yeah. Cst. Burns: Uh… uh… that’s not part of .. part of uh… Dalton Suchy: Uh… yeah. Cst. Burns: … what I need to know. Dalton Suchy: Uh-huh. Cst. Burns: Uhm.. I’d just like to know if you understand that you do have a right to a lawyer? Dalton Suchy: Uh-huh. Yeah. Cst. Burns: Okay. And you don’t wish to speak with one again right now?

Dalton Suchy: No. [ 15 ] Constable Burns fulfilled the informational duty when he read Mr. Suchy his Charter rights from the standard issue card both at the time of his arrest and prior to the investigative interview. On both occasions, Mr. Suchy verbally confirmed that he understood his rights. [ 16 ] Notwithstanding Mr. Suchy’s testimony that he has diagnosed ADHD, I do not accept that he was confused by what Cst.

Burns told him, was pushed into contacting Legal Aid, did not know the difference between a lawyer or Legal Aid, or was led to believe that he could only talk to the same lawyer he had already spoken to. The standard form Charter rights, which Mr. Suchy confirmed twice that he understood, include a direction to the detainee that “you may call any lawyer you wish”. Furthermore, Mr. Suchy testified that when Cst. Burns came to the door to arrest him, his parents said that they would not be able to find a lawyer for him as it was late and recalled that Cst.

Burns told him that he could call a lawyer, or if he did not have a lawyer, one could be provided. Mr. Suchy’s evidence about what happened at the time of his arrest indicates that he understood that he could contact a private lawyer. Mr. Suchy also stated that when Cst. Burns was discussing his right to counsel prior to taking his statement, he believed that Cst. Burns was offering him an opportunity to speak to a lawyer, but did not take advantage of that opportunity because he was scared and nervous.

Not taking advantage of an opportunity because you are scared or nervous is not the same thing as not understanding. Furthermore, Mr. Suchy agreed that he never told Cst. Burns that he was confused about his right to counsel even though he was given the time and opportunity to do so. While Cst. Burns appears to interchange the words “lawyer” and “Legal Aid” in Exhibit P-2, that discussion must be considered in the context of what happened previously, where Mr.

Suchy had already stated that he didn’t know a private lawyer and confirmed that he wanted to speak to Legal Aid. [ 17 ] The implementational duty was triggered when Mr. Suchy advised Cst. Burns that he would like to speak to a lawyer. Accordingly, the Crown has the burden of establishing that Mr. Suchy was provided with a reasonable opportunity to exercise it. As part of that analysis, I must also consider whether Mr. Suchy was diligent in exercising his right to counsel. [ 18 ] The Crown has established that Mr. Suchy was provided with a reasonable opportunity to exercise his rights to counsel.

Upon arriving at the police detachment, Cst. Burns asked Mr. Suchy what lawyer he would like to speak to, and he replied that he did not know. In my view, Cst. Burns acted appropriately in the circumstances by reminding Mr. Suchy that Legal Aid duty counsel was available for free 24 hours a day. Notwithstanding the fact that Cst. Burns could not recall how Mr. Suchy communicated his agreement to speak with Legal Aid, I find it very likely that he did so in some form. While Cst. Burns may not have perfect recollection of their conversation, Mr.

Suchy has no recollection of it. [ 19 ] Even if I had accepted the defence argument that Cst. Burns took it entirely upon himself to contact Legal Aid on Mr. Suchy’s behalf, Mr. Suchy was not deprived of his legal right to counsel of choice because he never requested it. Throughout the entire transaction, Mr. Suchy never asked to speak to a specific lawyer, nor did he ask the police officer for any assistance in finding one, whether from a telephone book, a family member or otherwise. If Mr. Suchy wanted to speak to a private lawyer, he had a positive obligation to convey that request to the police officer. Mr.

Suchy also failed to act diligently in exercising his right to counsel by not saying anything to the Legal Aid lawyer while they were on the telephone, failing to explicitly inform Cst. Burns that he was not satisfied with his call and/or requesting to call a lawyer when he was presented with a second opportunity to do so. [ 20 ] I am not satisfied, on a balance of probabilities that Mr. Suchy’s right to counsel, as guaranteed by s. 10(

b) of the Charter , was breached. Accordingly, the Charter application is dismissed. __________________________ S.L. Metivier, J