R. v. Littlechild, 2023 BCPC 242

Citation: R. v. Littlechild 2023 BCPC 242 Date: 20230817 File No: 33553-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. LORENZ CRUZ TYRESE LITTLECHILD RULING ON VOIR DIRE OF THE HONOURABLE JUDGE G.M. RIDEOUT Counsel for the Crown (Respondent): J. Madden Counsel for the Defendant (Applicant): A. Picard Place of Hearing: Vancouver , B.C. Date of Hearing: May 29, 30, and 31, 2023 Date of Ruling: August 17, 2023

Table of Contents I. INTRODUCTION .. 2 II. ISSUES .. 2 III. BACKGROUND .. 2 IV. POSITION OF THE PARTIES .. 12 (

a) The Applicant 12 (

b) The Respondent 13 V. LEGAL FRAMEWORK .. 15 VI. ANALYSIS AND FINDINGS .. 17 VII. CONCLUSION .. 27 I. INTRODUCTION [ 1 ] Lorenz Cruz Tyrese Littlechild (the “Applicant”) is charged with three offences in relation to his operation of a motor vehicle in Vancouver, British Columbia, on Sunday, November 28, 2021. [ 2 ] He is charged with failing to stop a motor vehicle that was involved in a collision with a pedestrian and provide his name and address and offer assistance to the injured pedestrian, contrary to s. 320.16(1) of the Criminal Code of Canada , R.S.C. 1985, c.

C-46 (the “ Code ”). [ 3 ] He is also charged with mischief by damaging City of Vancouver property during the course of the collision with the pedestrian, contrary to s. 430(4) of the Code . [ 4 ] Lastly, he is charged with dangerous driving in relation to the collision with the pedestrian, contrary to s. 320.13(1) of the Code . II. ISSUES [ 5 ] The Applicant made an inculpatory statement to Vancouver Police Department (“VPD”) Constable Regie Gnanaseelan, commencing at approximately 8:00 a.m. on November 28, 2021. [ 6 ] The Applicant asserts that his Charter rights pursuant to both s. 10(

a) and (

b) of the Canadian Charter of Rights and Freedoms (the “ Charter ”) were violated prior to the giving of the statement to Constable Gnanaseelan. [ 7 ] A voir dire has been declared to determine whether or not the Applicant’s s. 10 (

a) and (

b) rights were violated in this case. III. BACKGROUND [ 8 ] Constable Brian Hobbs of the VPD has been a police member since 2009. He was one of the police officers involved in this investigation. [ 9 ] He testified in direct-examination that the police were able to determine the registered owner of the motor vehicle in question from its licence plate. The registered owner was contacted. She advised that the Applicant had been driving her motor vehicle that evening.

She said that the Applicant was at an address in Richmond, British Columbia. [ 10 ] Constable Hobbs, accompanied by Constable Pool, attended at the residence shortly before 4:30 a.m. They were permitted to enter by the Applicant’s brother. [ 11 ] Constable Hobbs located the Applicant in the living room. He appeared to be sleeping on the floor, covered by a blanket with his head on a pillow. The Applicant’s brother attempted to wake up the Applicant for approximately thirty seconds by shaking his shoulders and telling him the police were present. The Applicant did not respond.

[ 12 ] Constable Hobbs then took the Applicant by his left arm and pulled him up into a standing position while telling him, “Hey, wake up, it’s the police, it’s time to get up”. [ 13 ] From his experience as a police officer, Constable Hobbs was under the impression that the Applicant understood that he was a police officer. The Applicant’s eyes were open, and the Constable was in full police uniform. [ 14 ] Constable Hobbs then advised the Applicant pursuant to s. 10(

a) of the Charter , as read from his Charter card, that he was under arrest for failing to remain at the scene of an accident, and also for committing mischief to property. [ 15 ] He asked the Applicant if he understood why he was under arrest in the following exchange: 17 Do you understand you’re under arrest? 18 19 At that point, in my report I indicate that it 20 took several minutes to get responses. I had to 21 explain in plain language. So after reading that 22 verbatim, I recall Mr. Littlechild kind of just 23 looked at me, he didn’t really understand what was 24 [going] on.

So at that point I would just –- my 25 standard practice is to say like, you’re not 26 admitting to me that you did anything, you don’t 27 have to agree that you’re under arrest. Most 28 people say like, well, why, I didn’t do anything. 29 This isn’t saying that you are agreeing that you 30 are under arrest or that you understand. I also 31 will explain to people, and I explained to Mr. 32 Littlechild, that you don’t have to understand why 33 you’re under arrest, you need to understand what 34 I’m saying to you right now. Do you understand 35 the words that are coming out of my mouth?

Do you 36 understand that I am telling you that you’re under 37 arrest for these things? That would be the plain 38 language version that I would have said to him 39 after that. At which point, for a s. 10 (

a) he did 40 –- I wrote in here [as read in]: 41 42 He eventually replied, “Yeah.” 43 44 So after giving some plain English explanations as 45 to the fact that you were under arrest for failing 46 to remain at the scene of the accident and 47 mischief, he replied to me, “Yeah.” [Transcript, May 29, 2023, p. 6, ll. 17-47] [ 16 ] Constable Hobbs then advised the Applicant pursuant to s. 10(

b) of the Charter of his right to retain and instruct counsel in

private without delay, read verbatim from his Charter card. [ 17 ] As he did with the s. 10(

a) component, he also explained the s. 10(

b) component in plain English, advising the Applicant that the police would facilitate his access to a lawyer and provide him with a phone number for a lawyer. [ 18 ] When Constable Hobbs asked the Applicant if he understood, he responded with a “yes”. When he was asked if he wanted to call a lawyer the Applicant responded, “I will call in the -- I will in the morning”. [ 19 ] Constable Hobbs advised the Applicant that it was already morning.

However, it was his belief that this exchange established a “level of comprehension” that the Applicant understood his right to contact a lawyer. [ 20 ] Constable Hobbs then read the Official Warning verbatim from his Official Warning card. The Applicant responded by nodding his head up and down. [ 21 ] During the course of the reading of the s. 10 Charter rights and the Official Warning, Constable Hobbs described the Applicant as calm, and listening to what he was being told.

He described the Applicant as a “little unsteady on his feet, but not to the degree that he needed to be assisted”. [ 22 ] He said that when he initially started explaining the Applicant’s Charter rights, the Applicant was a “little bit groggy, you know, a little bit unsure. I had to thoroughly explain things.

I couldn’t initially attribute that whether it was from just having woken up or being intoxicated or impaired either by drugs or alcohol … I did form the belief that his behaviour was likely due to being impaired either by alcohol or drugs.”: ibid. at p. 8, ll. 27-42. [ 23 ] He testified that he would have made a breath demand had the Applicant been in care and control of a motor vehicle. [ 24 ] He testified he received information from Constable Gnanaseelan at 4:47 a.m. that the Applicant was also to be arrested for driving while prohibited. [ 25 ] He then arrested the Applicant for driving while prohibited, and the Applicant was again chartered and warned from the Charter card and Official Warning card verbatim.

The Applicant responded “Yeah” to each of the three components read to him. [ 26 ] Constable Hobbs did not believe further explanation was required, as the Applicant was now being arrested for a second time, and it was his impression the Applicant “had a better understanding of what was going on, which is why less explanation and less detailed responses from him were provided”: ibid. at p. 11, ll. 43-47 and p. 12, l. 1. [ 27 ] He estimated he was with the Applicant for approximately thirty minutes before the Applicant was handed off to the wagon driver and taken to Vancouver jail. [ 28 ] He testified no force was ever required, no threats were ever made to the Applicant, and no promises were made to him.

Constable Hobbs described the situation as “very calm”. [ 29 ] Though he guided the Applicant down the stairs by his arm to the front of the residence, the Applicant otherwise did not require any physical assistance. He did not require any physical assistance to climb up the two steps into the police wagon even though he was wearing handcuffs. [ 30 ] In cross-examination, he described the demeanour of the Applicant during the course of the initial s. 10(

a) Charter reading as “extremely out of it”, “dopiness”, and “grogginess”. He said the Applicant repeatedly asked, “what is going on?” [ 31 ] He confirmed he did not speak to any jail guards to express any concerns about the Applicant’s possible intoxication by drugs and/or alcohol, or about the Applicant’s initial confusion in comprehending what was taking place during the arrest process. [ 32 ] Prior to his appointment as a member of the VPD, Constable Spencer Brien was a jail guard at the Vancouver jail.

He was on duty the morning of November 28, 2021, when the Applicant was booked. [ 33 ] His duties as a jail guard included ensuring that individuals in custody have access to legal counsel. [ 34 ] It was his practice to ask an individual if they were satisfied with their access to legal counsel. If there were any concerns in relation to an individual accessing legal counsel, he would make a note of the concerns in the observations box contained in the Jail Arrest Report (the “JAR”): Exhibit A. [ 35 ] He recalled speaking to the Applicant at the jail.

He did not recall anything of concern in his interactions with the Applicant. He confirmed from the JAR that he did not make any notations to the effect that there were any concerns relating to the Applicant’s access to legal counsel. [ 36 ] According to his notations in the JAR, he contacted Legal Aid at 5:58 a.m. and left a message.

Legal Aid called back at 6:10 a.m., and they spoke to the Applicant until 6:15 a.m. [ 37 ] Constable Brien agreed in cross-examination that he had little recollection of his interactions with the Applicant, and was principally refreshing his memory from the JAR. [ 38 ] Constable Gnanaseelan was tasked with conducting an interview of the Applicant at the Vancouver jail. [ 39 ] He testified in direct-examination that he encountered the Applicant in a hallway at the jail when the Applicant was being taken for his photographs by Constable Lu.

[ 40 ] Constable Gnanaseelan described the Applicant as looking a “little bit tired”. He confirmed with the Applicant that he had consulted legal counsel. He advised the Applicant that he would be conducting an interview with him shortly. [ 41 ] He testified the interview commenced at 7:59 a.m. on November 28, 2021. The interview ended at 8:34 a.m. The interview was videotaped.

A transcript was prepared of the interview: Exhibit B2. [ 42 ] Constable Gnanaseelan identified himself, and advised the Applicant he was under arrest for dangerous operation of a motor vehicle, failing to remain at the scene of an accident, mischief, and driving while prohibited. [ 43 ] The videotaped interview was played in court. For the purpose of the voir dire, the following interactions are relevant to s.10 and s.7 of the Charter : 28 R ‘Kay? Just really quickly, it’s my duty to inform you, you have the right to retain 29 and instruct counsel in private without delay.

You may call any lawyer you want. 30 There is a 24-hour telephone service available, which provides a Legal Aid duty 31 lawyer who can give you legal advice in private. This advice is given without 32 charge and the lawyer can explain the Legal Aid Plan to you. If you wish to 33 contact a Legal Aid duty lawyer, I can provide you with a telephone number. Do 34 you understand the reason that you’re under arrest for? 1 L Um, sort of, yeah. 2 R Yeah. Like, you understand like you’re under arrest, right… 3 L Yeah. 4 R …at this point, right? ‘Kay.

Um, did you have a chance to speak with a lawyer 5. today? 6 L Um, yeah, one time. 7 R ‘Kay. 8 L Like not my own personal lawyer. 9 R You didn’t speak with your personal lawyer. 10 L (Shakes head) 11 R But you had a chance to speak with a lawyer? 12 L A Legal Aid, yeah. 13 R With Legal Aid. Okay. Um, do you know the number for your own lawyer? 14 L Not off by heart. 15 R Not off by heart. Do you know his name? 16 L Um, no. 17 R Oh. You don’t know your lawyer, your own lawyer’s name? 18 L No. It’s through, um, my social worker. 19 R Ah, okay.

Uh, unfortunately, the issue is your social worker is probably asleep, 20 eh? It’s s-, six o’clock in the morning, seven o’clock in the morning. Uh, 21 actually, it’s eight o’clock. 22 L Oh my God, yeah. 23 R Yeah so you are not obliged to say anything, but anything that you do say may 24 be given in evidence. Do you understand that part? 25 L Mm-hmm. (Nods head)

[Exhibit B, p. 1 and 2] [ 44 ] Constable Gnanaseelan then re-advised the Applicant that he was being detained with respect to dangerous operation of a motor vehicle, failure to remain at the scene of an accident, mischief, and driving while prohibited. [ 45 ] He then read verbatim from his Official Warning card that if any police officer involved in the investigation threatened the Applicant, made any promises to him, or suggested any fear of prejudice should he refuse to speak, he remains entitled not to say anything, but anything he did say could be used in evidence. [ 46 ] The Applicant nodded his head up and down in response. [ 47 ] Constable Gnanaseelan explained, in part, that the investigation involved an allegation that the Applicant drove through Robson Square, collided with a pedestrian and then took off without stopping. [ 48 ] The Applicant explained that he was on his cell phone and he was not paying attention; he made a right turn and braked “really hard”.

People in the area of the collision began yelling at him. He became scared and left the scene of the collision. [ 49 ] On four occasions during the interview, the Applicant expressed a desire to remain silent: 1. “I’m sorry. I don’t feel comfortable ans-, answering any more questions. I think I’m really tired.”: ibid. at p. 6, ll. 2, 3; 2. “I’m, I, I like I don’t know what to say.

I just like, I, I just like don’t wanna like answer any more questions ‘til I talk to like the lawyer.”: ibid. at p. 9, ll. 10, 11; 3. “Honestly, don’t feel comfortable answering any more questions.”: ibid. at p. 10, ll. 31; and 4. “I don’t feel comfortable answering (unintelligible) questions.”: ibid. at p. 11, l. 8. [ 50 ] Constable Gnanaseelan testified he could smell the stale odour of liquor on the breath of the Applicant. He displayed no other indicia of intoxication. [ 51 ] While, at times, the Applicant was crying, he did not otherwise express any other physical or emotional discomfort.

He expressed concern over the return of his cell phone. [ 52 ] As it was early on a Sunday morning, Constable Gnanaseelan did not believe it was feasible that he attempt to contact the social worker for the Applicant. [ 53 ] In cross-examination, he testified he was aware the Applicant was a young man with no prior history with the police, other than a data entry into PRIME relating to the allegation of driving while prohibited. [ 54 ] He was not “sure” of the ethnicity of the Applicant at the time of the interview. [ 55 ] He agreed the Applicant did not present as an individual experienced in any criminal activity. [ 56 ] He recalled speaking to Constable Hobbs prior to his interview with the Applicant.

He did not recall Constable Hobbs advising him the Applicant was intoxicated at the time he was arrested in Richmond. [ 57 ] Constable Gnanaseelan was a jail guard at the Vancouver jail from 2015 through 2017. It was his experience that a jail guard would understand why a detainee in custody is under arrest from the JAR that accompanies prisoners to the jail. [ 58 ] He testified that he went through s. 10(

b) of the Charter “just really quickly” because he did not want to be interrupted as he went through the components of the right. [ 59 ] He agreed it was important for the Applicant to know the exact details of the reasons for his arrest when he accessed legal counsel. [ 60 ] He confirmed the Applicant spoke to Legal Aid, but not to his own personal lawyer. Constable Gnanaseelan felt that it was sufficient that the Applicant spoke to Legal Aid, though he was willing to assist the Applicant in contacting his personal lawyer.

However, he did not have a name or a phone number for the Applicant’s personal lawyer. [ 61 ] He denied he was lying when he told the Applicant it was “six o’clock in the morning, seven o’clock in the morning. Uh, actually, it’s eight o’clock” on November 28, 2021. He explained he was on a long shift and was working overtime at the time of the interview. [ 62 ] He agreed he told the Applicant his social worker was “probably asleep” at 8:00 a.m.

He agreed he did not ask for the social worker’s name or phone number, though he could have asked for those details at the time of the interview. [ 63 ] He testified it was his understanding that he was only required to provide a second call to legal counsel when the jeopardy for an arrestee had changed or they were facing new charges. [ 64 ] He agreed that when he was discussing the Applicant’s right to counsel, including the instances when the Applicant mentioned his own personal lawyer and his social worker, there would have been no prejudice to the interview if it had been suspended and the Applicant had been provided with another call to legal counsel. [ 65 ] He disagreed with the suggestion that his goal in conducting an interview of an arrestee is to elicit a confession.

Rather, he said

that it is his intention to get the arrestee’s side of the story. [ 66 ] In re-examination, Constable Gnanaseelan said that he did not believe he was dealing with a vulnerable individual when he conducted the interview of the Applicant. IV. POSITION OF THE PARTIES (

a) The Applicant [ 67 ] The Applicant submits that his rights under s. 10(

a) and (

b) of the Charter were breached. [ 68 ] While his main argument turns on the application of s. 10(b), s. 10(

a) is also in play, as it is his contention that at the time of his arrest he was not properly informed of the reasons for the arrest, therefore compromising his ability to get proper legal advice. [ 69 ] The submissions of the Applicant can be summarized as follows: • That in relation to s. 10(b), Constable Gnanaseelan was required to take reasonable steps to facilitate the Applicant contacting his own lawyer, when he expressed a wish to speak to his own lawyer; • That Constable Gnanaseelan did not ask the Applicant for the name and phone number of his social worker; • That he took no other steps to identify the Applicant’s social worker; • That in relation to s. 10(a), Constable Hobbs did not take the necessary time to explain the reasons for the arrest to the Applicant when the Applicant was clearly confused over what was going on, particularly so as Constable Hobbs believed the Applicant “might be intoxicated”; • That the police have a duty to ensure that an arrestee is able to actively participate in their defence with a full knowledge and comprehension of why they have been arrested; • That the Applicant is a 19-year-old Indigenous man with no history with the police.

He therefore should be viewed as a person with vulnerabilities based upon his youth, his having a social worker and his lack of experience with the police; • That Constable Gnanaseelan had an obligation to not simply ask the Applicant if he understood his rights; rather, he ought to have gone further in ensuring he understood his rights, as there was reason to question his understanding of those rights; • That the court should give little weight to the evidence of Constable Pool, as he made few notes of his interaction with the Applicant, except for his opinion that the Applicant had a “very strong odour” of liquor, which would corroborate Constable Hobbs’ evidence that the Applicant “might be intoxicated”; • That Constable Brien, previously a jail guard, had little, if any, clear recollection of his interactions with the Applicant.

He relied on his practice of entering notations by marking a box contained in the JAR in relation to access to counsel. The JAR does not include a specific

section to be filled in with respect to whether an arrestee understands his rights; • That Constable Gnanaseelan testified that it was his practice to provide a second telephone call to legal counsel when the legal jeopardy changed or if there were new charges; and • That it did not ring true that Constable Gnanaseelan’s goal is not to elicit a confession from an arrestee during the course of an interview. [ 70 ] The Applicant relies upon the Supreme Court of Canada (the “SCC”) decision in R. v. Lafrance , 2022 SCC 32 (“ Lafrance ”), applied in R. v. Roberts , 2022 ABKB 748 (“ Roberts ”). (

b) The Respondent [ 71 ] The Respondent submits that the Applicant bears the burden on a balance of probabilities to establish a breach of his s. 10 Charter rights. If the Applicant fails to establish at least one of the alleged breaches, then his application must be dismissed. [ 72 ] The Respondent submits that the Applicant was fully informed at the scene of his arrest by Constable Hobbs of the reasons for his arrest, in compliance with s. 10(a).

The Applicant responded with “yeah” when asked if he understood why he was being arrested. [ 73 ] The Applicant was again advised of the reasons for his arrest by Constable Gnanaseelan on two separate occasions during the course of his interview at the Vancouver jail.

While initially, when he was asked if he understood why he was being arrested, he responded with, “um, sort of, yeah”, there was no equivocation when he was advised on the second occasion of the reasons for his arrest. [ 74 ] Before the Applicant gave his statement, he was also advised by Constable Gnanaseelan that the investigation included the allegation that the Applicant drove through Robson Square and collided with a pedestrian. [ 75 ] The Respondent submits that the Applicant was fully informed at the scene of his arrest of his right to legal counsel pursuant to s. 10(b), as read verbatim by Constable Hobbs from his Charter card.

When the Applicant was asked if he wanted to speak to legal counsel, he indicated that he would, “in the morning”.

[76] Self-induced intoxication will not likely be a “special circumstance” requiring the police to take further steps to ensure thedetainee understands his right to counsel.

In this case, the Respondent submits that Constable Hobbs took appropriate steps to repeat theright, both verbatim from his Charter card and in plain English, to satisfy himself that the Applicant understood that Charter right. [77] The Respondent’s further submissions that no breach of the right to counsel of choice occurred can be summarized as follows: • That a detainee must be reasonably diligent in pursuing the right to counsel of choice; • That where a detainee has spoken to Legal Aid duty counsel and not expressed any concern over the advice received, thepolice are not obliged to further facilitate the detainee’s right to counsel of choice; • That once a detainee has been provided with a reasonable opportunity to consult legal counsel, the police may assume thedetainee is satisfied with that opportunity and the interview can proceed, unless, as a result of changed circumstances or newdevelopments, the initial advice, viewed contextually, is no longer sufficient or correct: R. v.

Sinclair, 2010 SCC 35 at para. 57(“Sinclair”); • That the Applicant told Constable Gnanaseelan that he spoke with Legal Aid but “like not my own personal lawyer.” Thereis no indication that he in fact “wished” to speak to counsel of choice, or that he was not satisfied with the advice he received; • That the Applicant was unaware of the name and telephone number for his lawyer.

He suggested contact informationwould be available through his social worker; • That Constable Gnanaseelan felt, and the Applicant appeared to agree, that the social worker would not likely be availableat 8:00 a.m. on a Sunday morning; • That the police cannot read people’s minds, and “in the absence of any demonstrated diligence in the pursuit of identifiedcounsel of choice”, the police are not obliged to inquire about friends or family who might have information, or to provide internetaccess or a legal directory: R. v.

Reyes, 2018 ONCJ 561 at paras. 26-32 and 34-36; • That in this case, the Applicant never expressed concern that he was not satisfied with the advice he received, nor wasthere any change of circumstance or new development that would give rise to a right to re-consult: R. v. Dussault, 2022 SCC 16 at para.35; • That in Lafrance at para. 17, the SCC noted that the police interviewed Mr.

Lafrance for 3.5 hours for an alleged murderand refused to provide him with a further opportunity to consult a lawyer when there were “objective indicators” that he may not haveunderstood the advice provided, and that his “only chance” to get a lawyer was to call his father.

He told the police that the Legal Aidlawyer told him that he needed a lawyer to come to speak to him; • That such objective indicators are not present in this case, and the assertion by the Applicant that he did not speak to hisown lawyer would not constitute “objectively observable” circumstances indicating he did not understand or was not satisfied with theadvice he received from Legal Aid: Sinclair at para. 55; and • That the Applicant was clearly aware of the right to remain silent, as he expressed on several occasions during theinterview that he was “uncomfortable” or did not want to talk to Constable Gnanaseelan about certain aspects of the investigation.

V. LEGAL FRAMEWORK [78] Individuals who are arrested or detained by the police must be advised promptly of the reasons for the arrest or detention in clearand simple language: R. v. Mann, 2004 SCC 52. [79] S. 10(

a) of the Charter is founded firstly on the notion that an individual is not obliged to submit to an arrest or detention if he orshe does not know the reasons for the arrest or detention. The second purpose of the right to be informed of the reason for the arrest ordetention is to facilitate, in a meaningful way, the right to legal counsel as conferred by s. 10(

b) of the Charter: R. v. Evans, (SCC), [1991] 1 S.C.R. 869. [80] Vulnerability to police coercion is particularly acute in cases where the individual subject to an arrest or detention has no priorexperience with law enforcement. In that situation, the police must be particularly scrupulous in ensuring that the individual is informedof their right to legal counsel, and that their rights are respected: Roberts at para. 19. [81] Police obligations arising from s. 10(

b) begin with informing individuals subject to arrest or detention of their “right to retain andinstruct counsel without delay and of the existence and availability of legal aid and duty counsel”: R. v.

Willier, 2010 SCC 37 at para. 29. [82] If an individual speaks to duty counsel and he subsequently expresses dis- satisfaction with the legal advice or expresses a desireto contact a different lawyer, the police are under a continuing duty to facilitate the individual’s contact with their counsel of choice:Roberts at para. 21. [83] In the event there is a material change in an arrestee’s or detainee’s situation after the initial consultation with duty counsel orcounsel of choice, this may necessitate a supplemental consultation with legal counsel: Sinclair at para. 43. [84] In Sinclair, the SCC at paras. 50-52 identified three non-exhaustive categories of changed circumstances requiring supplementalconsultation with a lawyer.

For the purpose of this voir dire, it is the third category that is relevant: 3. Reason to Question the Detainee’s Understanding of His

Section 10(

b) Right

[52] If events indicate that a detainee who has waived his right to counsel may not have understood his right, the police should reiterate his right to consult counsel, to ensure that the purpose of s. 10(

b) is fulfilled: Prosper . More broadly, this may be taken to suggest that circumstances indicating that the detainee may not have understood the initial s. 10(

b) advice of his right to counsel impose on the police a duty to give him a further opportunity to talk to a lawyer . Similarly, if the police undermine the legal advice that the detainee has received, this may have the effect of distorting or nullifying it. This undercuts the purpose of s. 10( b ). In order to counteract this effect, it has been found necessary to give the detainee a further right to consult counsel.

See Burlingham . [Emphasis added.] [ 85 ] In Roberts at para. 24 the Court summarized the categories of changed circumstances requiring supplemental access to legal counsel: [24] The Sinclair Court also recognized that the categories of changed circumstances requiring supplemental access to legal advice are not closed; the operative question is whether further consultation “is necessary to fulfill s. 10(b)’s purpose of providing the detainee with advice in the new or emergent situation” ( Sinclair at para 54 ).

Such new or emergent situations will not arise where the detainee merely asserts they were “confused or needed help”; rather, the situation must be “objectively observable” ( Sinclair at para 55 ).

In other words, supplemental consultation is required “when it becomes clear ... that the initial advice, viewed contextually, is no longer sufficient or correct ” ( Sinclair at para 57 ). [Emphasis added.] [ 86 ] In situations where an arrestee or detainee may not understand their right to legal counsel, the police must take appropriate steps to facilitate that understanding, including giving consideration to the individual’s capacity to understand: Lafrance at para. 74 . VI.

ANALYSIS AND FINDINGS [ 87 ] The Applicant submits he is particularly vulnerable to police coercion due to his young age, his Indigenous status, his lack of experience with the police, and the impact of his consumption of alcohol. [ 88 ] Without question, potential vulnerabilities can impact the capacity of an arrestee or detainee to understand the explanation of the rights contained in s. 10 of the Charter . [ 89 ] The majority decision of the SCC in Lafrance identified specific vulnerabilities unique to Mr.

Lafrance in a murder investigation which included: his youth; his sophistication challenges; his Indigenous status; his small stature relative to the armed and uniformed police officers; and, his lack of prior police interactions. [ 90 ] On March 19, 2015, Mr. Lafrance was awoken by 11 fully armed police officers when they entered his home in the early morning hours to execute a search warrant. He was ordered to dress and leave the premises. He was taken to a police station, where he was interviewed for over three hours in relation to an ongoing murder investigation.

At no time was he advised of his right to speak to a lawyer: ibid . at para. 8. [ 91 ] On April 7, 2015, he was arrested for murder, and advised of his right to speak to a lawyer. He indicated he wanted to contact a “free lawyer”. He had a brief conversation with a Legal Aid lawyer. At the conclusion of the call, he was asked if he had spoken to a lawyer, and whether he understood the advice given. He answered “yes”: ibid. at paras. 3, 15 and 16. [ 92 ] Mr. Lafrance was then moved to a secure interview room, where he was interviewed for several hours.

When the police officer began to ask specific questions about the alleged murder, he stated that that he did not want to answer any more questions, and wanted to contact his father; he said that was his “only chance of getting a lawyer”, and he wanted the lawyer before going forward with anything else. He also said that the Legal Aid lawyer told him “to get a lawyer before [he] continue[s] talking”: ibid. at para. 17. [ 93 ] The Court in Lafrance at para. 19 was asked three questions on appeal: 1. Did the police detain Mr. Lafrance on March 19, 2015, and breach his right to counsel? 2. Did the police breach Mr.

Lafrance’s right to counsel on April 7, 2015, by refusing to allow him to contact his father to facilitate a further consultation with a lawyer? 3. If the answer to either or both is “yes”, should the evidence be excluded by s. 24(2) of the Charter ? [ 94 ] The majority of the Court answered “yes” to all three questions. [ 95 ] In doing so, the majority considered the atmosphere of compulsion that was created by the police when Mr. Lafrance was being investigated for murder on March 19, 2015: [40] Indeed, Sgt. Eros’ statements to Mr. Lafrance [3] do not turn the tide here.

While they militate against a finding of detention, they are outweighed by circumstances that support the opposite conclusion, namely, that a reasonable person in his position would have felt compelled to comply and unfree to leave. For example: • Mr. Lafrance awoke to 11 police officers at his residence, with vans, firearms and bulletproof vests, ordering him to dress and get out of the house; • The police accompanied Mr. Lafrance while he searched for his cat;

• Sgt. Eros approached Mr. Lafrance after he went outside, asked him to confirm his identity and told him that he wanted to ask him questions relating to Mr. Yasinski’s death; • The only practical means available to Mr. Lafrance for getting to the police station was for him to be driven, which he was in an unmarked police vehicle accompanied by two police officers; • At the station, the police brought Mr. Lafrance to an interview room at the back of the police station that was behind two sets of locked doors; • The police left Mr.

Lafrance in the interview room for at least 17 minutes, having closed the door behind them, and did not inform him that the doors were unlocked; and • The police told Mr. Lafrance that he was in a secure environment, controlled his access to the outside of the interview room, and kept him under surveillance during the course of the interview, including escorting him to the bathroom. [ 96 ] It was also key to the majority decision that, when Mr.

Lafrance was interviewed on April 7, 2015, there were clear objective signs the legal advice he obtained was incorrect, or he did not understand how his right to get legal advice applied to his current circumstances: [84] Sgt. Eros then questioned Mr. Lafrance about his conversation with Legal Aid. While Mr. Lafrance acknowledged that he was told that he did not have to say anything, there were also clear signs that either the legal advice he obtained was incorrect, or he did not understand how his s. 10(

b) rights applied to his current circumstances. Mr. Lafrance explained to Sgt. Eros that the advice he obtained from Legal Aid was to “get a lawyer before [he] continue talking” and get “someone that can come down and sit with [him]” (A.R., vol. V, at p. 139) — indicating either that Mr. Lafrance had incorrectly interpreted the advice he received or, as Sgt. Eros hinted at, that he had received “bad advice”. [86] There was ample reason here to question Mr. Lafrance’s understanding of his s. 10(

b) right, bringing his circumstances within the third Sinclair category. … a “changed circumstance” can arise “[w]hen there is reason to question the detainee’s understanding of his s. 10(

b) right” (para. 172). That is this case. His confusion was an “objective indicat[or] that renewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so” ( Sinclair , at para. 55 ). And this is because the information to which he had a right under s. 10(

b) had not been conveyed, either at all or in a manner he understood (para. 52). [Emphasis added.] [ 97 ] In discussing the purpose of s. 10 (

b) of the Charter and the Sinclair framework, the majority in Lafrance confirmed that a single consultation with a lawyer can be constitutionally sufficient, absent a change in circumstances where new developments significantly alter the advice given: ibid. at para. 69. [ 98 ] Also underlying the purpose of s.10 (

b) is the intention to mitigate the imbalance where the police understand an accused’s right to choose whether to speak to them, but the accused may lack that understanding.

To level the playing field, it is important that the legal advice provided ensures that a detainee understands their rights, “ chief among which is [the] right to silence ”: ibid. at para. 71 [Emphasis added]. [ 99 ] The Sinclair framework establishes that if there is a change in circumstance or a new development, including the arising of a reason to question a detainee’s understanding of their rights to counsel, such change in circumstance or new development may amount to an exceptional circumstance requiring the police to pause the investigation and take further steps to comply with s. 10 (b): ibid. at paras. 72 and 73. [ 100 ] Ultimately, in applying s. 24 (2) of the Charter , the majority in Lafrance noted the unique vulnerabilities specific to Mr.

Lafrance that justified exclusion of the evidence obtained on March 19, 2015 and April 7, 2015. [ 101 ] Roberts involved a case where Mr. Roberts had a variety of unique vulnerabilities that clearly established an imbalance in his relationship with the police. [ 102 ] Mr. Roberts was charged with a series of criminal offences, including discharging a firearm with the intent to wound, and aggravated assault with a weapon. [ 103 ] Mr. Roberts implicated himself during the course of an interview with the police.

He sought the exclusion of certain evidence, submitting that his right to consult with counsel of choice and his right to silence pursuant to ss. 10(

b) and 7 of the Charter had been breached. [ 104 ] The Court described the nature of Mr. Roberts’ vulnerabilities: [4] The Accused was 24 years old at the time of the alleged offences and had no prior experience with law enforcement. He had a high school education, where he attended Special Needs classes to accommodate his disabilities. He presents with cognitive deficiencies and attention deficit/hyperactivity disorder (“ADHD”). Though he worked for his family’s vacuum truck business, the Accused was on Assured Income for the Severely Handicapped (“AISH”).

He and his girlfriend lived with his adoptive parents, to whom he paid a nominal monthly amount for rent and other bills. [ 105 ] The Court found the police were presented with objective indicia that Mr. Roberts was a vulnerable individual who might have difficulty understanding and asserting his Charter rights, and who might be susceptible to involuntary self-incrimination: ibid. at para. 79.

[ 106 ] The Court also found that, between the Mr.

Roberts’ telephone call with counsel of his choice and his cautioned interview, the police were presented with numerous objectively observable indicia that he had cognitive deficiencies that could impact his capacity to understand his lawyer’s advice, including the unsophisticated manner in which he spoke, his expressed desire to become a peace officer and be friends with the investigating police officer, his excessive expressions of wanting to cooperate with the police, and his lack of basic awareness of the criminal process: ibid. at para. 80. [ 107 ] The Court found that it was significant that the police were aware that Mr.

Roberts had cognitive disabilities. As a result, he faced a number of risks in obtaining adequate legal advice, understanding his legal jeopardy, and understanding his lawyer’s advice regarding his rights, including his right to silence and how to assert it: ibid. at para. 109. [ 108 ] Further, the police were aware of his ADHD diagnosis, but did not know if he had access to his medication before he spoke to his lawyer and gave his statement: ibid. at para. 110. [ 109 ] The Court found this to be an objectively observable risk, obliging the police to suspend the interview until they were satisfied that Mr.

Roberts understood and had the “ capacity to understand ” the legal advice he received. The failure to make that inquiry and confirm that understanding constituted a breach under s. 10(

b) of the Charter : ibid . at para. 228 [Emphasis added]. [ 110 ] Ultimately, the Court ordered that Mr. Roberts’ statement to the police be excluded pursuant to s. 24(2) of the Charter : ibid. at para. 227. [ 111 ] In this case, the Applicant was arrested at the Richmond residence by Constable Hobbs, in the company of Constable Pool. I accept the evidence of Constable Hobbs that the Applicant was sleeping in the living room when the police attended. I also accept his evidence that it took a period of time to awaken the Applicant. [ 112 ] Once the Applicant awoke, Constable Hobbs helped him stand up.

He did not apply any force to lift the Applicant to his feet. [ 113 ] He described the Applicant as being “a little unsteady on his feet” and “a little bit groggy”. After a few minutes, the Applicant appeared “quite groggy and kind of out of it and like unsteady on his feet”. As a result of these observations, Constable Hobbs formed a belief that the Applicant’s behaviour may have been impaired by alcohol or drugs. [ 114 ] Based on his experience as a police officer, he did not believe the Applicant was grossly intoxicated.

He described the Applicant as comprehending questions put to him in relation to the Charter and providing coherent answers in English. [ 115 ] At 4:30 a.m., from his Charter card, he advised the Applicant verbatim and then explained in plain English that he was under arrest for failing to remain at the scene of an accident, and for mischief.

When asked if he understood, after a short period of time the Applicant answered, “yeah”. [ 116 ] Constable Hobbs then read from his Charter card verbatim and then explained in plain English the Applicant’s right to retain and instruct counsel, including the availability of access to Legal Aid. When the Applicant was asked if he understood, he said, “yes”. When he was asked when he would like to talk to a lawyer he responded, “I will call in the -- I will in the morning”. [ 117 ] Constable Hobbs then read the Official Warning in relation to the Applicant’s right to silence.

When he was asked if he understood, he nodded his head up and down. [ 118 ] I find that the Applicant’s affirmative responses to being asked whether he understood the reasons for his arrest and his right to access legal counsel, and the nodding of his head up and down in response to the Official Warning, demonstrate his understanding of the reasons for his arrest, his right to legal counsel and his right to silence. [ 119 ] At 4:47 a.m., after further information was received, Constable Hobbs arrested the Applicant for prohibited driving.

He followed the same procedure in advising the Applicant of his rights pursuant to s. 10 of the Charter and giving the Official Warning in relation to his right to remain silent. When asked if he understood his rights, the Applicant answered “yeah” on each occasion.

It was Constable Hobbs’ opinion the Applicant did not require any additional explanation, as he appeared to have a “better understanding of what was going on”, as demonstrated by his prompt reply of “yeah” to the questions put to him. [ 120 ] After approximately thirty minutes at the Richmond residence, the Applicant was escorted by Constable Hobbs from the residence and down the stairs to the outside. Other than being held by the arm, the Applicant did not require any assistance in walking or negotiating the stairs.

The Applicant did not require any assistance in entering the police wagon. [ 121 ] Constable Hobbs was forthright in his evidence. His evidence was not undermined or shaken in cross-examination. I accept his evidence as both credible and reliable with respect to his interactions with the Applicant at the Richmond residence. [ 122 ] Constable Brien testified that part of his duties as a jail guard included ensuring that individuals in custody have access to legal counsel.

He also completed portions of the JAR. [ 123 ] While the JAR does not include a reference to the Applicant’s arrest for mischief, it does note that he was arrested and chartered at 4:47 a.m. for “Fail to Remain at Scene” and “Drive While Prohibited”. [ 124 ] There is no notation in the JAR that the Applicant was under the influence of alcohol or drugs, or that any force was required during the course of the arrest. [ 125 ] There is no notation in the JAR that the Applicant was unable to access legal counsel because he was too intoxicated or aggressive.

Nor is there any notation in the observations box indicating any concerns in relation to the Applicant’s access to legal counsel.

[ 126 ] In addition, there is no notation the Applicant advised that he had a personal lawyer, though the JAR does provide a place for that information. [ 127 ] I found Constable Brien to be a careful witness.

He made appropriate concessions in cross-examination, including that he had few actual recollections of his interactions with the Applicant, and was largely relying upon his practice as a jail guard and his notes contained in the JAR. [ 128 ] I accept the evidence of Constable Brien to be credible and reliable in establishing that there were no indicators that the Applicant was intoxicated during his interactions with Constable Brien, or that he did not have access to legal counsel, or that he was in some way not satisfied with the legal advice, or that he advised Constable Brien that he had his own personal lawyer. [ 129 ] I am satisfied that if any of those concerns had been observed and/or communicated, Constable Brien would have made a notation of those concerns in the JAR. [ 130 ] The Applicant was arrested at 4:30 a.m. on November 28, 2021.

He was interviewed by Constable Gnanaseelan at 8:00 a.m. that morning. [ 131 ] The interview took place in an interview room containing a table and two chairs. The door to the interview room remained open at all times. The Applicant had no observable difficulty in entering the interview room or in sitting down. [ 132 ] Throughout the interview the Applicant was coherent, articulate and responsive to questions put to him by Constable Gnanaseelan.

The Applicant’s voice was clear, and there was no indication of any slurring of words. [ 133 ] The Applicant was, at times, emotional, and he displayed significant empathy toward the young female that he allegedly struck with his automobile.

He asked on several occasions if she was going to be “okay”. [ 134 ] There were occasions when he became uncomfortable with the line of questioning, and expressed that discomfort by advising Constable Gnanaseelan he did not want to answer any more questions. [ 135 ] Other than the stale odour of liquor observed by Constable Gnanaseelan and the Applicant’s statement that he was tired, there was nothing objectively observable in the Applicant’s physical demeanour or ability to communicate to suggest that he was impaired in his ability to participate in the interview. [ 136 ] The Applicant submits that he expressed a “wish” to speak to his personal lawyer before the interview proceeded.

The Applicant is not entirely accurate in relation to that expression. The Applicant confirmed that he spoke a Legal Aid lawyer but not his “own personal lawyer”. [ 137 ] The Applicant never stated that he “wished” to speak to his own lawyer or that he was otherwise not satisfied with or did not understand the advice he received from the Legal Aid lawyer. [ 138 ] His connection to his “personal” lawyer was tenuous at best. He did not know the lawyer’s telephone number or name. Apparently the lawyer is known to his social worker. [ 139 ] I note the interview took place at 8:00 a.m. on a Sunday.

Constable Gnanaseelan told the Applicant his social worker would probably be asleep. The Applicant appeared to accept this reality when he answered, “Oh my God, yeah.” [ 140 ] I find it would have been impractical for Constable Gnanaseelan to suspend the interview and embark on a separate investigation to try to locate the lawyer for the Applicant through the Ministry of Children and Family Development (“MCFD”). It was 8:00 a.m. on a Sunday morning. I find locating an open MCFD office, let alone the Applicant’s social worker’s office, at that time would have been unlikely.

As well, privacy issues would have had to be resolved before information could have been released respecting a client of the MCFD. [ 141 ] All of this would have potentially taken a significant amount of time, possibly days, and was not necessary, given that the Applicant never complained to Constable Gnanaseelan that he did not receive proper legal advice or did not understand the advice he was given. [ 142 ] As is his right, the Applicant did not testify on the voir dire .

I do not find any evidence that would suggest any vulnerabilities unique to the Applicant, including his Indigenous status, to establish he lacked the capacity to understand the legal advice he may have received. There is no evidence the Applicant did not receive proper legal advice from the Legal Aid lawyer. [ 143 ] Throughout the interview, the Applicant appeared to understand and appreciate the right to remain silent. He even exercised that right on more than one occasion.

Other than stating that he was tired, he did not appear to be impaired or manifest any cognitive deficits. [ 144 ] I do not find that his statement that he did not speak to his “own personal lawyer” after speaking to the Legal Aid lawyer establishes, either implicitly or by inference, that he did not receive proper legal advice, or that he did not understand or did not have the capacity to comprehend the legal advice provided to him by the Legal Aid lawyer. [ 145 ] I do not find that his statement that he did not speak to his “own personal lawyer” in the context of his dealings with the police on November 28, 2021, amounts to an objectively observable circumstance or new development that would require Constable Gnanaseelan to suspend the interview and to then take supplemental steps to facilitate further legal advice for the Applicant.

VII. CONCLUSION

[ 146 ] I find the Applicant has failed to establish on a balance of probabilities that there has been a breach of his s. 10 Charter rights. [ 147 ] Accordingly, the application is dismissed. _____________________________ The Honourable Judge G.M. Rideout Provincial Court of British Columbia