R v Roberts, 2022 ABKB 748

Court of King’s Bench of Alberta Citation: R v Roberts, 2022 ABKB 748 Date: 20221110 Docket: 210374583Q1 Registry: Calgary Between: His Majesty the King Crown - and - Jesse Lane Roberts Accused Restriction on Publication Preliminary Inquiry – See the Criminal Code ,

section 539 . By Court Order, this decision and the evidence given in the preliminary inquiry shall not be published, broadcast, or transmitted in any way. NOTE: This decision is available from the court file. It may be published after the accused is discharged after a preliminary inquiry or, if the accused is ordered to stand trial, after the end of the trial. Trial information in Absence of Jury – See the Criminal Code , section 648(1) .

Permission having been given to the jurors to separate, information regarding any portion of the trial at which the jury is not present shall not be published, broadcast, or transmitted in any way. NOTE: This decision is available from the court file. It may be published after the jury retires to consider its verdict.

_______________________________________________________ Ruling on Voir Dire of the Honourable Mr. Justice W.P. Sullivan _______________________________________________________ Table of Contents 1. Introduction . 4 a. Findings . 5 2. Background . 6 a. The arrest and detention . 6 b. Legal framework for the right to counsel 7 3. Issue 1: Whether the firearm can be excluded absent a Garofoli application . 8 a. Facts . 8 b. Analysis . 9 4. Issue 2: Whether the Accused’s 10(

b) rights were violated during the delay between phone calls with duty counsel and his counsel of choice . 9 a. Facts . 9 b. Was the collection of gunshot residue a lawful search incident to arrest? . 10 c. Did the delay itself constitute a breach of 10(b)? . 11 i. The right to counsel of choice . 11 ii. Mr. Roberts’ situation of vulnerability . 13 iii. Effect of the 14.5-hour delay . 14 5. Issue 3: Whether the cautioned statements were elicited in violation of

section 10(

b) of the Charter 14 a. Did the Accused understand his 10(

b) advice? . 15 i. The “objectively observable” standard of a detainee’s lack of understanding . 15 ii. The detainee’s “capacity to understand” . 16 iii. Mr. Roberts’ capacity to understand and assert his 10(

b) advice . 17 iv. Indications of Mr. Roberts’ actual understanding . 18 v. Police understood Mr. Roberts was vulnerable . 21 vi. The breaches of 10(b) 22 b. Did police undermine the Accused’s 10(

b) advice? . 24 i. Legal framework . 24 ii. Examples from the cautioned interview .. 26 iii. Police effectively undermined Mr. Roberts’ legal advice . 28 6. Issue 4: Whether the statements should be excluded under section 24(2) of the Charter . 29 a. Seriousness of the Charter -infringing conduct 30 b. Impact of the breaches on the Charter -protected interests of the Accused . 33 c. Society’s interest in adjudicating the case on its merits . 34

d. Admission of the statements would bring disrepute upon the administration of justice . 35 7. Issue 5: Whether the cautioned statements were voluntary . 35 a. Legal framework . 36 b. Analysis . 36 i. Threats or promises . 36 ii. Oppression . 37 iii. Operating mind . 40 iv. Police trickery . 41 v. The right to silence . 42 vi. Mr. Roberts’ will was overborne . 44 8. Conclusion . 45 1. Introduction [ 1 ] As the designate of Chief Justice Moreau, Justice de Wit appointed me as the Case Management Judge for this pre-trial Application pursuant to

section 551.1 of the Criminal Code . [ 2 ] This Application raises the interrelated issues of a vulnerable detainee’s right to consultation with a lawyer under

section 10(b) [“10(b)”] of the Canadian Charter of Rights and Freedoms [ Charter ], as well as the right to silence under

section 7 of the Charter and the common law confessions rule ( i.e. , voluntariness). The Accused seeks the exclusion of the following from evidence: 1. a rifle seized by police pursuant to a warrant that was informed by a statement made by the Accused upon arrest, the elicitation of which the Crown concedes violated the Accused’s 10(

b) rights; 2. the results of a gunshot residue kit administered by police; and 3. certain inculpatory statements the Accused made to police while in custody. [ 3 ] The Accused is charged with striking and driving over SV with a vehicle, striking SV with a rifle stock, and discharging a .22 calibre rifle into BP on July 29, 2020, thereby committing: (1) one count of discharging a firearm with intent to wound, maim, disfigure or endanger the life of BP contrary to section 244(1) of the Criminal Code ; (2) one count of aggravated assault with a weapon against BP contrary to section 268(1) of the Criminal Code ; (3) operating a conveyance in a manner that was dangerous to the public, resulting in bodily harm to SV contrary to

section 320.12(2) of the Criminal Code ; (4) one count of aggravated assault with a weapon against SV contrary to section 268(1) of the Criminal Code ; and (5) one count of assault with a weapon against SV contrary to

section 267(

A) of the Criminal Code . [ 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. [ 5 ] The Accused was arrested and detained by members of the Royal Canadian Mounted Police (“RCMP”) at his parents’ rural property where an arresting officer elicited the whereabouts of a rifle in violation of his 10(

b) rights. After speaking with duty counsel at the RCMP detachment that evening, the Accused was subjected to a gunshot residue kit. He was not given an opportunity to speak with his counsel of choice until next morning. That conversation lasted approximately 15 minutes, following which the Accused was escorted to the hospital for an assessment after defecating blood and vomiting in his cell earlier that morning. Upon returning to the police detachment, the Accused was interrogated by four members of the RCMP interview team for approximately 3.5 hours.

At various points throughout his detention and interrogation, the Accused made numerous inculpatory statements to police. [ 6 ] The Accused argues that the whereabouts of the rifle, the results of the gunshot residue kit, and his cautioned statements were elicited by police in violation of his 10(

b) rights and should be excluded from evidence in his trial pursuant to section 24(2) of the Charter . In the alternative, the Accused seeks a ruling that the inculpatory statements be excluded from evidence on the basis that they were involuntary. [ 7 ] The issues before the Court are as follows: 1: Whether the firearm can be excluded absent a Garofoli application.

2: Whether the Accused’s 10(

b) rights were violated during the delay between phone calls with duty counsel and his counsel of choice. (

i) Was the collection of gunshot residue a lawful search incident to arrest? (ii) Did the delay itself constitute a breach of 10(b)? 3: Whether the cautioned statements were elicited in violation of the Accused’s 10(

b) rights. (

i) Did the Accused understand his 10(

b) advice? (ii) Did police undermine the Accused’s 10(

b) advice? 4: Whether the statements should be excluded under section 24(2) of the Charter . 5: Whether the cautioned statements were voluntary. a. Findings [ 8 ] I find the application for the exclusion of the rifle under section 24(2) of the Charter is premature considering the presumptive validity of the judicially authorized search through which the rifle was discovered. The onus is on the Applicant to establish the warrant was not valid, absent which they cannot seek the back-door exclusion of the evidence obtained through section 24(2) of the Charter .

Further, I find that the gunshot residue was extraneous evidence on the Accused’s person, and that it was collected lawfully in a non-conscriptive manner as a search incident to arrest. [ 9 ] The 14.5-hour delay in the Accused’s access to his counsel of choice nevertheless constituted a breach of his 10(

b) rights, and police further violated those rights in their elicitation of his cautioned statements after his contact with his counsel of choice. I find the administration of justice demands all statements made by the Accused while in police custody on July 29 and July 30, 2020 be excluded from evidence at trial pursuant to section 24(2) of the Charter . [ 10 ] I also find the final portion of the cautioned statement inadmissible based on finding reasonable doubt that it was made voluntarily.

This reflects the Accused’s will being overborne by the aggregate effect of the oppressive conditions of the detention; his repeated unsuccessful attempts to assert his right to silence; the personal characteristics that rendered him vulnerable and suggestible; police undermining his legal advice; and the inducements employed by interrogators. 2. Background a. The arrest and detention [ 11 ] On July 29, 2020, Csts. Leclair and Crockett arrested Mr. Roberts outside his parents’ rural property in Wheatland County, Alberta. Upon entering the front gates of the property, the officers encountered Mr.

Roberts proned-out on his stomach facing them on the lawn beside the driveway leading to the house. Cst. Crockett commanded Mr. Roberts to put his hands out to the side, which he complied with immediately. Cst. Crockett then told him to turn himself around while remaining on his stomach, which Mr. Roberts did immediately before placing his hands behind his back. Cst. Crockett again directed Mr. Roberts to put his hands out to the side and to raise them so he and Cst. Leclair could see them, to which Mr. Roberts immediately complied. [ 12 ] Cst. Leclair advised Mr. Roberts of his right to counsel upon arrest. Mr.

Roberts indicated that he wished to contact counsel. However, before he was placed in the police vehicle, Cst. Crockett asked Mr. Roberts where the firearm and knife were. Mr. Roberts replied that he put the firearm back into his gun safe and denied knowing where the knife was or having it on him at the time of the alleged offence. [ 13 ] Once in the police vehicle, Cst. Leclair proceeded with Mr. Roberts’ Charter caution: CST LECLAIR: So, listen, you have the right to retain and instruct a lawyer without delay.

This means that before we proceed with our investigation, you may call any lawyer you wish, or a lawyer from a free legal advice service immediately. If you want to call a lawyer for free legal advice service, we will provide you with a telephone. You can call a toll-free number for immediate legal advice. If you wish to contact any other lawyer, a telephone and a telephone book will be provided to you. If you are charged with an offence, you may apply to legal aid for assistance. Do you understand that? MR. ROBERTS: Yes, sir. CST. LECLAIR: And do you want to call a free lawyer or any other lawyer? MR.

ROBERTS: Ahh, free lawyer.

CST. LECLAIR: Okay, so, right now you’re being charged with dangerous operation, assault with a weapon, careless use of a firearm.You’re not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you understand that? MR. ROBERTS: Yes sir... [14] Upon arriving at the Strathmore RCMP detachment Mr. Roberts was placed in the phone room and spoke with duty counsel.He then phoned his father to obtain the phone number of a different lawyer.

Before he was able to contact a different lawyer, he wasprocessed for gunshot residue and placed in a holding cell overnight. [15] The following morning Mr. Roberts was re-arrested by Sgt. Climenhaga on upgraded charges before speaking with hiscounsel of choice for approximately 15 minutes. He was then escorted to the hospital by Cst. Leclair and Sgt. Climenhaga for anassessment as he had been vomiting and defecated blood that morning. [16] Upon returning to the Strathmore RCMP detachment, Mr. Roberts was interrogated for approximately 3.5 hours by Cst. St.Onge, Cpl. Girard, Sgt. Reister, and Sgt. Climenhaga. b.

Legal framework for the right to counsel [17]

Section 10(

b) of the Charter provides that “everyone has the right on arrest or detention ... to retain and instruct counselwithout delay and to be informed of that right.” [18] The purpose of the right to counsel is “to allow the detainee not only to be informed of [their] rights and obligations under thelaw but, equally if not more important, to obtain advice as to how to exercise those rights” (R v Manninen, (SCC),[1987] 1 SCR 1233 at 1242–43).

The right to counsel also serves to redress a detainee’s “situation of vulnerability relative to the state”– which arises at the outset of an arrest or detention –– by helping them “regain their liberty, and guard again the risk of involuntary self-incrimination” (R v Suberu, 2009 SCC 33 at paras 41 and 40 [Suberu]). [19] Vulnerability to police coercion and the risk of involuntary self-incrimination is especially acute in the case of detainees withno prior experience with law enforcement and those with cognitive deficiencies that may impact their capacity to understand or asserttheir rights (R v Evans, (SCC), [1991] 1 SCR 869 at 875 [Evans]; R v Lafrance, 2022 SCC 32 at para 79 [Lafrance]).In such circumstances, it is incumbent on police to be scrupulous in ensuring that detainees are informed of their right to counsel and thattheir rights are respected (Evans at 875). [20] Police obligations arising from 10(

b) begin with informing detainees of their “right to retain and instruct counsel withoutdelay and of the existence and availability of legal aid and duty counsel” (R v Willier, 2010 SCC 37 at para 29 [Willier], citing R vBartle, (SCC), [1994] 3 SCR 173 at 192 [Bartle]). Once a detainee expresses a desire to speak with a lawyer, police areunder a duty to facilitate their contact with counsel “at the first reasonably available opportunity” (R v Taylor, 2014 SCC 33 at para 24[Taylor]).

With the exception of urgent or dangerous situations, police are obligated “to refrain from eliciting evidence from the detaineeuntil [they’ve] had that reasonable opportunity” (Willier at para 29, citing Bartle at 192). [21] If, after speaking with duty counsel, a detainee expresses dissatisfaction with their legal advice or a desire to contact a differentlawyer, police are under a continuing duty to facilitate their contact with their counsel of choice.

In most circumstances, however, “[o]ncea detainee has had a reasonable opportunity to speak with [their] counsel of choice, police are no longer obligated to ‘hold off’ and mayinterrogate the detainee” (R v Keror, 2017 ABCA 273 at para 41 [Keror], citing R v Sinclair, 2010 SCC 35 at para 53 [Sinclair]; R vMcCrimmon, 2010 SCC 36 at paras 17–19 [McCrimmon]; Willier at para 42). [22] The right to supplemental consultation with counsel may nevertheless arise after a detainee has spoken with duty counsel ortheir counsel of choice when there is “a material change in the detainee’s situation after the initial consultation” (Sinclair at para 43).

TheSinclair Court identified three non-exhaustive categories of changed circumstances requiring supplemental consultation with a lawyer atparas 50–52: 1. new, non-routine procedures involving the detainee that generally will not have been contemplated by the advising lawyer duringthe initial consultation, such as “participation in a line-up or submitting to a polygraph”; 2. a change in the detainee’s jeopardy arising from developments in the investigation; and 3. events that indicate “the detainee may not have understood the initial s. 10(

b) advice of his right to counsel” or if police nullify,distort, or otherwise undermine the legal advice provided to the detainee. [23] Where the right to supplemental consultation arises, police have a corollary duty to “hold off further questioning until thatconsultation has taken place or a reasonable opportunity for it to occur has been provided” (Sinclair at para 58). [24] The Sinclair Court also recognized that the categories of changed circumstances requiring supplemental access to legal adviceare not closed; the operative question is whether further consultation “is necessary to fulfill s. 10(b)’s purpose of providing the detaineewith advice in the new or emergent situation” (Sinclair at para 54).

Such new or emergent situations will not arise where the detaineemerely asserts they were “confused or needed help”; rather, the situation must be “objectively observable” (Sinclair at para 55). In otherwords, supplemental consultation is required “when it becomes clear ... that the initial advice, viewed contextually, is no longer sufficientor correct” (Sinclair at para 57). [25] With respect to this contextual lens, Justice Brown, for the majority in Lafrance, emphasized that the “the inquiry [intowhether a detainee understood their initial 10(

b) advice] is into circumstances, stated broadly. This connotes an examination not merelyof whether the detainee consulted legal counsel, but of the entire context in which the police-detainee interaction occurred” (at para 75,emphasis in original). It follows that in “circumstances where the detainee may not understand his or her [right to counsel], the police

must take steps to facilitate that understanding [including] giving consideration to the detainee’s understanding and capacity tounderstand” (Lafrance at para 74, emphasis in original, quoting R v Hunt, 2020 ONCJ 627 at para 51 [Hunt]). 3. Issue 1: Whether the firearm can be excluded absent aGarofoli application a. Facts [26] Cst. Leclair informed Mr. Roberts of his right to counsel upon arrest, to which Mr. Roberts indicated that he wished to contacta lawyer. Before being placed in the police vehicle, however, Cst. Crockett asked Mr. Roberts where the firearm and the knife were.

Mr.Roberts responded that he put the firearm back into his gun safe in the garage of his residence and denied knowing where the knife wasor having a knife in his possession at the time of the offence. That information was later relayed by Cst. Crockett to members of theGeneral Investigations

Section of the RCMP, who were preparing a search warrant. [27] A rifle was ultimately seized from the gun safe in the garage of Mr. Roberts’ residence pursuant to the search warrant thatwas informed by the information Cst. Crockett relayed to the General Investigations Section. [28] Mr. Roberts submits that the elicitation of the firearm’s whereabouts before he had an opportunity to consult with counselviolated his 10(

b) rights. He seeks the exclusion of the rifle pursuant to section 24(2) of the Charter. [29] The Crown concedes that the elicitation of the rifle’s whereabouts and Mr. Roberts’ comments about the knife violated his10(

b) rights and does not seek the admission of those statements at trial. However, the Crown opposes the exclusion of the rifle fromevidence absent further argument on the appropriateness of a section 24(2) remedy and the validity of the warrant. b. Analysis [30] Notwithstanding the Charter breach in the elicitation of the whereabouts of the firearm, the search conducted to obtain therifle was authorized by a presumptively valid court order (R v Morton, 2020 ABCA 250 at para 22 [Morton]; R v Tran, 2019 ABQB244 at para 13; R v Campbell, 2010 ONCA 588 at para 45, aff’d 2011 SCC 32). Mr.

Roberts bears the onus of establishing that thewarrant was invalid on a balance of probabilities (R v Clow, 2012 ABQB 656 at para 15, citing Quebec (Attorney General) v Laroche,2002 SCC 72 at para 68; R v Sadikov, 2014 ONCA 72 at para 83; Morton at para 22). He has not argued that in this Application. [31] To consider the exclusion of the firearm pursuant to section 24(2) of the Charter would undermine the presumptive validity ofthe judicially authorized search. I therefore decline to consider the admissibility of the rifle absent argument on the validity of thewarrant. It was and continues to be Mr.

Roberts’ prerogative to apply for a Garofoli review of the warrant’s validity in light of anyunderlying Charter breaches (R v Garofoli, (SCC), [1990] 2 SCR 1421 at 1451–1452). 4. Issue 2: Whether the Accused’s 10(

b) rights were violatedduring the delay between phone calls with duty counsel and hiscounsel of choice a. Facts [32] Upon arriving at the Strathmore RCMP detachment, Cst. Leclair advised the staff to prepare a dry cell for Mr. Roberts so thathe could not wash off any evidence that investigators might seek to obtain. [33] Mr. Roberts then spoke to duty counsel at approximately 7:10 PM. At 7:31 PM, he advised Cst. Leclair that he “wanted to callhis dad, next, because his dad might have a number for a different lawyer.” Cst. Leclair provided Mr.

Roberts with a pen and paper so hecould write down the phone number of a lawyer his dad might give him. [34] Mr. Roberts then spent an additional 18 minutes in the phone room, during which time Corporal Kuehn requested that policeat the Strathmore detachment process Mr. Roberts for gunshot residue. [35] Cst. Leclair then re-entered the phone room and asked Mr. Roberts whether he had spoken to a lawyer, to which Mr. Robertsreplied, “yeah, just Legal Aid.” At this point, Cst. Leclair presumed Mr. Roberts had received sufficient legal advice despite knowing thathe wanted to speak with a different lawyer.

He did not make any further enquiries as to whether Mr. Roberts was satisfied with theadvice he had received from duty counsel or if he wanted to speak with a specific lawyer. [36] Mr. Roberts was subsequently subjected to the gunshot residue kit administered by Cst. O’Connell. No conversation tookplace between Mr. Roberts and Cst. O’Connell during the approximately 8 minutes it took to complete the kit. [37] Mr. Roberts was then placed in a cell, at which point Cst. Leclair informed him that he would be facing many more chargesand that another officer would come back to speak with him that night.

Aside from brief exchanges with the guard on duty that nightthrough the slot in his cell door, no officer came to speak with Mr. Roberts that evening.

[38] Though Cst. Leclair acknowledged that Mr. Roberts had a right to speak to a lawyer of his choice and wrote in his notes thatMr. Roberts indeed “wanted to speak with a specific lawyer”, he considered the implementation of Mr. Roberts’ 10(

b) rights at that pointto be complete. Cst. Leclair finished his report and went home. Mr. Roberts remained in his cell overnight for approximately 14.5 hoursand was not provided a further opportunity to contact his counsel of choice until 10:41 AM the next day. [39] Mr. Roberts submits that the collection of gunshot residue after speaking with duty counsel, but before being given the chanceto consult with his counsel of choice, violated his 10(

b) right to counsel. He seeks the exclusion of the gunshot residue kit results undersection 24(2) of the Charter. Mr. Roberts also submits that the delay between his conversation with duty counsel and his counsel ofchoice formed an independent breach of his 10(

b) rights. [40] The Crown submits that the collection of gunshot residue from Mr. Roberts’ person did not constitute a change incircumstances re-triggering the right to counsel because it was performed incidental to a lawful arrest. Though Mr. Roberts didn’t speakwith his counsel of choice until the morning after his arrest, the Crown submits that Mr. Roberts did not assert his right to speak with aspecific lawyer on the evening of his arrest, implying that the delay could not have violated his 10(

b) right to speak with his counsel ofchoice. b. Was the collection of gunshot residue a lawful search incident to arrest? [41] As described by the Sinclair majority at para 50: “[t]he initial advice of legal counsel will be geared to the expectation thatthe police will seek to question the detainee. Non-routine procedures, like participation in a line-up or submitting to a polygraph, will notgenerally fall within the expectation of the advising lawyer at the time of the initial consultation.” [42] Mr.

Roberts may or may not have been advised by duty counsel of whether to cooperate with a gunshot residue kit and thepotential ramifications of doing so. However, the germane question is whether Mr. Roberts actually had a choice to cooperate with thecollection of gunshot residue such that legal advice on that point was relevant. In other words, did the collection of gunshot residueconstitute a “non-routine procedure” that the detainee was entitled to make an informed decision to cooperate with, or were policeotherwise lawfully entitled to collect gunshot residue from Mr.

Roberts’ person absent his consent? [43] Whether a gunshot residue kit constitutes a “non-routine procedure” giving rise to the right to supplemental consultation withcounsel has not been considered in the case law. A tempting analogy might be found in the collection of a detainee’s DNA. For example,in R v Briscoe, 2015 ABCA 2, the Alberta Court of Appeal confirmed that a DNA test does constitute a non-routine procedure on thebasis that it “is no different from a polygraph in the sense that it is a procedure capable of producing new evidence regarding thedetainee’s possible involvement in a crime.

It is also similar to the polygraph in that it is a procedure where the detainee’s participation isessential and the police must first secure the detainee’s consent” (at para 90). [44] However, swabbing a detainee’s person to obtain time-sensitive evidence such as gunshot residue is not akin to the collectionof the detainee’s own DNA.

Whereas the latter involves the use of a detainee’s body as evidence (i.e., conscriptive evidence) and isgoverned by “the procedure for seizing the accused’s own bodily materials” (R v Saeed, 2016 SCC 24 at para 67 [Saeed], citing R vStillman, (SCC), [1997] 1 SCR 607 [Stillman]), the former is more appropriately characterized as the collection ofextraneous, non-conscriptive evidence from the Accused’s person (Stillman at para 74; R v Backhouse, (ONCA) atparas 147–152, [2005] OJ No 754 (QL) [Backhouse]). [45] Like blood visible on the skin of a detainee accused of murder (e.g., R v Smythe, , [2006] OJ No 5527(QL)) or the suspected presence of a complainant’s DNA on the genitalia of a detainee accused of sexual assault (e.g., Saeed), where anaccused has been detained for the commission of an offence involving the discharge of a firearm, police may be entitled to swab orotherwise collect extraneous evidence such as gunshot residue from the detainee’s skin as a search incident to a lawful arrest (Saeed atpara 68, citing Backhouse at paras 141–143). [46] Given the time-sensitive nature of collecting both gunshot residue (Backhouse at paras 139, 142, 154) and extraneous DNAevidence from an accused’s skin, the Alberta Court of Appeal’s words respecting DNA apply equally to the gunshot residue here (R vSaeed, 2014 ABCA 238 at para 36, aff’d 2016 SCC 24): It would be an affront to one’s sense of justice for the police in this case to be required to stand idly by while highly relevant but timesensitive DNA evidence disappeared forever.

Again it must be emphasized that this is potential DNA evidence of the complainantlocated on the appellant’s body surface and not the appellant’s own DNA. The latter situation is governed by R v Stillman. [47] No argument was advanced to suggest that Mr. Roberts’ arrest was unlawful. I find the common law power of search incidentto arrest was justifiable based on the urgency of preserving relevant evidence that was at risk of being lost with the passing hours anddiscovering evidence relevant to the firearm-related offences for which Mr.

Roberts was lawfully arrested (R v Caslake, (SCC), [1998] 1 SCR 51 at para 25; Backhouse at para 142). Police were thus entitled to obtain the extraneous gunshot residue fromMr. Roberts’ hands as a search incident to his lawful arrest, regardless of whether he was adequately advised by duty counsel or had anopportunity to consult with his counsel of choice. Accordingly, the collection of gunshot residue from Mr. Roberts’ person did notviolate his 10(

b) rights. c. Did the delay itself constitute a breach of 10(b)? i. The right to counsel of choice [48] The present case is distinguishable from situations where a detainee expresses a desire to contact their preferred choice ofcounsel and, when that lawyer is unavailable, the detainee voluntarily chooses to speak with duty counsel instead (e.g., Keror at para 42;Willier at para 43; McCrimmon at paras 17–19). Here, Mr. Roberts spoke with duty counsel then indicated he wished to speak with hisfather to obtain the number of a specific lawyer. Cst. Leclair understood Mr. Roberts wanted to speak with a specific lawyer, but

neglected to ask whether Mr. Roberts had spoken to that lawyer or if he had an opportunity to do so. He merely confirmed that Mr.Roberts had spoken to a lawyer, being duty counsel. [49] The present case is also distinguishable from situations where a detainee waives their right to speak with their counsel ofchoice by failing to diligently voice their dissatisfaction with the advice of duty counsel or request to speak with another lawyer (e.g.,Keror at paras 41, 43; Willier at para 42). Here, Mr. Roberts indicated he wanted to speak with a different lawyer after speaking withduty counsel.

He then spoke with his dad to obtain the phone number of a different lawyer but was not able to contact a different lawyerbecause he was immediately subjected to the gunshot residue kit then placed in his cell. He was not able to diligently voice hisdissatisfaction with his legal advice or request a phone call with his lawyer of choice because, despite Cst. Leclair making it abundantlyclear that another officer would come to speak with him that evening, no one came. [50] Whether or not Cst. Leclair subjectively believed Mr. Roberts’ 10(

b) rights had been sufficiently implemented, the onlyreasonable

interpretation of the series of events after Mr. Roberts spoke with duty counsel is that he was in the process of trying tocontact a different lawyer (see e.g., R v Whitford, 1997 ABCA 85 at paras 13–15). Further, whether leaving Mr. Roberts in limbo in hiscell overnight was intentional or a mere oversight, the fact remains: after expressing a desire to speak with a lawyer of his choice, Mr.Roberts was not given an opportunity to do so for 14.5 hours. In other words, police did not facilitate Mr. Roberts’ contact with hiscounsel of choice “at the first reasonably available opportunity” (Taylor at para 24). Mr.

Roberts’ confusion with the delay and desire tospeak with a lawyer was evident the next morning when Sgt. Climenhaga, dressed in plain clothes, entered his cell and introducedherself, to which Mr. Roberts replied, “Tiffany. Are you Legal Aid?” [51] The delay itself cannot be taken lightly.

The right to counsel is an essential outlet for detainees to obtain advice about theirrights and guidance “on such questions as how long the detention is apt to last, and what can or should be done to regain their liberty” (Rv Noel, 2019 ONCA 860 at para 26 [Noel], citing Debot v R, (SCC), [1989] SCR 1140 at 1144 and Suberu at para 41).The importance of a detainee’s timely access to legal advice was succinctly stated by Doherty JA in R v Rover, 2018 ONCA 745 at para45: The right to counsel is a lifeline for detained persons.

Through that lifeline, detained persons obtain, not only legal advice and guidanceabout the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police whiledetained. The psychological value of access to counsel without delay should not be underestimated. [52] The psychological pressure inflicted by the 14.5-hour delay was undoubtedly amplified by the conditions of Mr. Roberts’detention.

The cell block was sweltering and he had not been able to shower after having been dripping with sweat, the lights were lefton overnight such that he was forced to use his shirt to cover his eyes to get what little sleep he could, and Mr. Roberts defecated bloodand threw up in his cell on the morning of July 30. I find the 14.5-hour delay in the facilitation of Mr. Roberts’ contact with his counselof choice constituted a breach of his 10(

b) rights. For the reasons that follow, I find the psychological value and need for timely access tocounsel of choice was especially important for Mr. Roberts given his objectively observable vulnerabilities. ii. Mr. Roberts’ situation of vulnerability [53] From the outset of Mr. Roberts’ arrest and detention, there were objective indications that police were dealing with avulnerable individual who might have difficulty understanding and asserting both his right to counsel and his lawyer’s 10(

b) advice, andwho might be susceptible to involuntary self-incrimination. [54] For example, after providing his name and birthdate to Cst. Leclair while in the back of the police vehicle, Mr. Roberts asked,“is my cooperation good?”, to which Cst. Leclair did not reply. Shortly thereafter, Cst. Leclair informed Mr. Roberts of the offences hewas being arrested for and explained his right to counsel, to which Mr. Roberts’ confirmed his understanding.

However, his purportedunderstanding belied a lack of appreciation for his presumption of innocence, his right to silence, and his right to counsel, which wasrevealed immediately after Cst. Leclair read the charges when Mr. Roberts asked, “how many years am I in there for?” Cst. Leclairresponded, “I have no idea”, following which Mr. Roberts asked, “ten, fifteen, twenty?” [55] Mr. Roberts was so preoccupied with cooperating with police that he asked Cst. Leclair twice more about his cooperation asthey left his parents’ property: “is my cooperation doing well with you, sir?”; “is my cooperation going well?” Mr.

Roberts alsoapologized to Cst. Leclair for his “hands” –– a reference to when Cst. Crockett told him to put his hands out to the side and raise themwhen Mr. Roberts had placed his hands behind his back while proned-out waiting to be arrested. [56] These exchanges reflect Mr. Roberts’ lack of experience with law enforcement or the criminal justice system, which wouldhave been known to police when they ran a background check prior to arresting him. They also reveal his overriding desire to cooperatewith and please police. The risk of Mr. Roberts’ naivete was manifest in his inculpatory response to Cst.

Crockett’s question of where thefirearm was and his questions about how long his sentence would be upon being arrested. [57] Those inculpatory statements demonstrated Mr. Roberts’ objectively observable propensity to indirectly incriminate himself,which I find exacerbated his “situation of vulnerability relative to the state” and his urgent need for legal advice to “guard against the riskof involuntary self-incrimination” (Suberu, see para [18]). The latter being one of the primary purposes of the right to counsel, it wasincumbent upon Cst. Leclair to ensure that Mr.

Roberts was provided a timely opportunity to consult with his counsel of choice. [58] While Mr. Roberts did not express any dissatisfaction with duty counsel’s advice and had not yet named the specific lawyerthat he wanted to speak with, I find Cst. Leclair was nevertheless obligated to confirm whether he was satisfied with the advice of dutycounsel and if he needed further opportunity to contact a specific lawyer. This is in keeping with the Supreme Court’s direction inLafrance regarding the duty of police to ensure detainees understand their 10(

b) advice when they have objectively perceivablevulnerabilities that might impact their understanding and capacity to understand that advice (at paras 37, 74). As stated in Keror at para45, “[a] police officer’s duties under s 10(

b) depend upon what the detainee says and does, and what the officer should reasonably inferfrom the surrounding circumstances” (emphasis added).

[ 59 ] The surrounding circumstances included the foregoing objectively observable indications that Mr. Roberts was more vulnerable than the average detainee. In particular, his complete lack of exposure to the right to counsel and his eagerness to cooperate with police rendered him manifestly vulnerable to involuntary self-incrimination and may have diminished his ability to comprehend and assert his Charter rights. [ 60 ] In addition to the erroneous belief that the implementation of Mr. Roberts’ 10(

b) rights was complete following his phone call with duty counsel, I find Cst. Leclair failed to discharge his initial implementational duties when he neglected to confirm Mr. Roberts’ understanding of his 10(

b) advice or ensure he was satisfied with the advice he had received. This exacerbated the breach associated with the 14.5-hour delay before Mr. Roberts was able to speak with his counsel of choice. iii. Effect of the 14.5-hour delay [ 61 ] Investigators acknowledged the 10(

b) breach associated with the 14.5-hour delay the following morning when they appended a Wittwer warning to the re-arrest script ( R v Wittwer , 2008 SCC 33 ). A Wittwer warning enables investigators to insulate a subsequent statement by a detainee from inadmissible statements that were previously elicited in breach of their Charter rights (see e.g. , R v Tang , 2015 BCSC 1643 at paras 190 , 192). Though Sgt. Climenhaga did not attempt to elicit evidence from Mr. Roberts pursuant to her duty to hold off, the impact of the 10(

b) breach was immediately evident when Mr. Roberts repeatedly inculpated himself as Sgt. Climenhaga attempted to re-arrest him and read him the Wittwer warning. [ 62 ] Upon hearing the upgraded charges of attempted murder, Mr. Roberts interjected: “may I ask you officer, is it...gona be in for life?” After Sgt. Climenhaga replied that she couldn’t talk to him about sentencing, Mr. Roberts said, “I know it’s totally apart but I would love to know my sentence.... this is my first offence.” [ 63 ] Mr. Roberts later started to explain what happened the day prior, to which Sgt.

Climenhaga cautioned, “sweetie, until you know your rights it’s not safe for you to talk to me about your offence, okay? So I have to read this off to you.” Mr. Roberts proceeded to express concern that his side of the story had not been heard, and eventually admitted that he had “fucked up”. [ 64 ] When Sgt. Climenhaga was finally able to get to the upgraded charge of attempted murder of BP and asked if Mr.

Roberts knew what she meant, he replied, “I attempted to hurt him, bodily harm him in a way that could put me in for a life sentence.” When asked if he understood what she meant about the attempted murder of SV, Mr. Roberts replied, “not really, no. I don’t understand that one. Ah, that one was an accident...Ah, they -- well, I ah, hit them.” [ 65 ] Before he was able to speak with his lawyer, Mr. Roberts made several more self-incriminating comments throughout the re- arrest and Wittwer warning, all of which could have been avoided had his contact with his counsel of choice been facilitated the night prior. 5.

Issue 3: Whether the cautioned statements were elicited in violation of

section 10(

b) of the Charter [ 66 ] Mr. Roberts submits that the elicitation of his cautioned statement on July 30, 2020 violated his 10(

b) rights because he was not provided an additional opportunity to consult with his lawyer when there were objectively observable indications that

a) he didn’t understand his lawyer’s advice and,

b) investigators had undermined that advice. [ 67 ] The Crown submits that Mr. Roberts’ consultation with duty counsel and his lawyer of choice were sufficient to discharge the right to counsel, and that the right to an additional consultation was not triggered. This is based on the Crown’s position that Mr. Roberts spoke freely and voluntarily with investigators and did not diligently voice any concerns about the adequacy of his phone call with his lawyer. a. Did the Accused understand his 10(

b) advice? [ 68 ] As noted in Lafrance , the third Sinclair category of changed circumstances –– a detainee’s potential lack of understanding of their initial 10(

b) advice –– “raises the question of how such circumstances are to be identified –– that is, what it means for a detainee to not understand ‘the initial s. 10(

b) advice’ such that a second legal consultation is necessary” (at para 73). This acknowledges that a detainee’s right to further consultation with counsel is not limited to circumstances where they explicitly express dissatisfaction with their previous advice, but includes broader circumstances that indicate they may not have understood that advice ( R v Azonwanna , 2020 ONSC 5416 at para 151 [ Azonwanna ]; Sinclair at para 52 ; Lafrance at para 75 ).

Viewed in light of those broader circumstances and what a detainee says and does, if a detainee’s potential lack of understanding is “objectively observable”, police are obligated to facilitate their understanding by providing a reasonable opportunity to re-consult counsel ( Sinclair at para 55 ). i.

The “objectively observable” standard of a detainee’s lack of understanding [ 69 ] What constitutes an “objectively observable” potential lack of understanding was partly addressed in the case law following Sinclair and prior to Lafrance . [ 70 ] For example, an incoherent detainee nodding in and out of consciousness as a result of intoxication would manifestly lack the requisite understanding of their 10(

b) advice, triggering the police duty to hold off questioning ( Hunt at paras 51–53 ). Police do not, however, “have an obligation to respond to a detainee's misunderstanding of his rights or how to implement them if that misunderstanding is not communicated to the police or if there are no other indicators suggestive of a lack of comprehension []. These indicators viewed objectively must signal confusion or misunderstanding” ( R v Dunford , 2017 SKCA 1 at para 27 [citations omitted]).

Nevertheless, statements by a detainee need only “raise a reasonable prospect that the accused has not exercised his or her s. 10(

b) rights”to trigger the duty to hold off (R v Zekarias, 2018 ONSC 4753 at para 36). [71] A lack of understanding that is objectively observable has also been described as that which can be “reasonably surmise[d] inthe circumstances” (Zekarias at para 35, citing R v Badgerow, 2008 ONCA 605 at para 45 [Badgerow]), which in turn depends on “whatthe detainee says and does, and what the officer should reasonably infer from the surrounding circumstances” (Keror at para 45).

The“objectively observable” standard is thus a contextually specific and fact-dependent inquiry. [72] The Lafrance majority observed that the prior case law implementing Sinclair generally fell into two categories ofapproaches to assessing a detainee’s understanding of their 10(

b) advice (at para 74, emphasis added): The first –– narrower, relative to the second –– tends to focus on the fact of the earlier consultation or, where applicable, on a detainee’sassertion of his or her right to silence (see, e.g., R. v. Pagé, 2018 QCCS 5553, at paras. 20-21 ; R. v. Smith, 2015 ABQB 624, atparas. 66-68 ; R. v. Ejigu, 2012 BCSC 1673, at para. 58 ; and R. v. Jongbloets, 2017 BCSC 740, at paras. 109-10 and113 ). The second approach inquires into “the overall context”, or “the situation ‘on the ground’” (R. v.

A.R.M., 2011 ABCA 98,599 A.R. 343, at paras. 25 and 40) that properly inform the reasonable perceptions of police of whether detainees understand their rightto silence and how to exercise it (see, e.g., R. v. Laquette, 2021 MBQB 177, at para. 93 . [73] The Lafrance decision added important context to the second category with respect to an individual detainee’s personalcharacteristics that may give rise to the need for supplemental consultation. ii.

The detainee’s “capacity to understand” [74] Lafrance expanded upon the Sinclair framework by emphasizing the importance of the police inquiry into the personalcharacteristics of detainees that bear on their “understanding and capacity to understand” their 10(

b) advice (at para 74, citing Hunt atpara 51 and R v Fedoseev, 2014 ABPC 192 at paras 55–63). This derives from the majority’s stated purpose of

section 10(b), which is tomitigate the imbalance of power between police and the detainee (Lafrance, paras 77-78). [75] The procedural guarantees required to level the playing field are particular to each individual and their capacity to understandtheir advice regarding how to exercise their rights (Lafrance at para 79). Such understanding is particularly crucial with respect to theright to silence, “which itself includes ‘the benefits and drawbacks of cooperating’ and ‘strategies to resist cooperation’ where that is thedetainee’s choice” (Lafrance at para 75 citing the Court of Appeal: 2021 ABCA 51 at para 48).

As McLachlin J (as she then was) wrotein R v Herbert, , [1990] 2 SCR at 162, “the right of a detained person to remain silent and the right to counsel [are]intertwined.” [76] A narrow inquiry into whether a detainee was advised of their rights is insufficient to discharge the implementationalcomponent of

section 10(b); rather, police must be satisfied that the detainee understood their legal advice (Lafrance at para 75). This isespecially true of detainees with cognitive deficiencies that might impair their ability to understand their 10(

b) advice. Well before theSinclair trilogy, the Supreme Court recognized that evidence of a detainee’s “subnormal mental capacity” weighs in favour of thepolice’s duty to further explain their Charter rights to them (Evans at 875). [77] In Lafrance, the majority described the individual personal characteristics that can exacerbate the imbalance of power andinfluence the course of custodial interviews as “vulnerabilities”.

The Court cautioned the following (at para 79): Investigating officers and reviewing courts must be alive to the possibility that these vulnerabilities, which may relate to gender, youth,age, race, mental health, language comprehension, cognitive capacity or other considerations, coupled with developments that may occurin the course of police interrogation, will have rendered a detainee’s initial legal advice inadequate, impairing his or her ability to makean informed choice about whether to cooperate with the police.

In such situations, Sinclair requires that an accused is entitled to anadditional consultation to even the playing field. [78] With that in mind, an assessment of whether Mr. Roberts “may not have understood the initial s. 10(

b) advice of his right tocounsel” must begin with what officers could reasonably infer about Mr. Roberts’ capacity to understand his 10(

b) advice from hisobjectively perceivable vulnerabilities. Those inferences further inform the inquiry into whether there were objective indications that heactually may not have understood that advice. iii. Mr. Roberts’ capacity to understand and assert his 10(

b) advice [79] Throughout his initial arrest and detention on July 29 and re-arrest on the morning of July 30, Cst. Leclair and Sgt.Climenhaga were presented with objective indications that Mr. Roberts was a vulnerable individual who might have difficultyunderstanding and asserting his Charter rights, and who might be susceptible to involuntary self-incrimination (see paragraphs [53]–[65]). [80] I also find that, between his phone call with his counsel of choice and his cautioned interview, police were presented withnumerous objectively observable indications that Mr.

Roberts had cognitive deficiencies that could impact his capacity to understand hislawyer’s advice. In general, this is based on the frequent and sometimes lengthy pauses Mr. Roberts took before answering questions, theunsophisticated manner in which he spoke, his idealised expressions of becoming a police officer and friends with Cst. Leclair, hisexcessive expressions of wanting to cooperate with police, and his lack of basic awareness of the criminal process. The followingspecific examples provide context for how Mr. Roberts’ cognitive disabilities and potential lack of understanding of his 10(

b) advicewere otherwise objectively observable. Indications of cognitive disabilities [81] In transit to the hospital, Sgt. Climenhaga asked Mr. Roberts if he worked, to which he replied, “not now. Ah, not really.”

When asked why he wasn’t working, he responded “I’m -- I have a learning disability so I’m on AISH.” Mr. Roberts further explained that he attended Special Needs classes and required assistance reading and writing in school. When asked if his disability was presently an issue for him, Mr. Roberts replied, “ahh, I can read -- I gotta have someone help me read and read with them and then I understand everything.” [ 82 ] Sgt. Climenhaga then asked whether Mr. Roberts was capable of living on his own, to which he hesitated and said, “mmmm - - yeah”. However, he later told Cst.

Leclair that he and his girlfriend were living with his parents at the time. Sgt. Climenhaga then asked whether he is able to understand everything being said to him, to which Mr. Roberts replied that he could, but was worried about police tricking him and using things he said against him. [ 83 ] At this point, Sgt. Climenhaga clearly understood Mr. Roberts had some cognitive deficiencies, as she proceeded to ask, “have you been diagnosed with what -- what you have Jesse?” Mr. Roberts replied, “well, ADHD.

I was born with it.” She then confirmed that meant “Attention Deficit Disorder” and asked what else he’d been diagnosed with, to which Mr. Roberts replied, “that’s pretty much it.” Sgt. Climenhaga then confirmed with Mr. Roberts: “that’s it? And then just some -- some learning disabilities?” Mr. Roberts replied, “yes”. [ 84 ] Sgt. Climenhaga testified that at the time, she understood AISH to be “a form of disability with the Alberta Government”. She had heard of AISH in the context of law enforcement, but didn’t exactly know what it was or how it worked.

At that point, however, they were pulling into the hospital parking lot and the enquiry into Mr. Roberts’ disabilities ended. [ 85 ] On cross-examination, Sgt. Climenhaga admitted that she didn’t know whether or how Mr. Roberts’ cognition was affected by his ADHD or any other disabilities. She also admitted she didn’t know whether he had taken any medication for his disabilities prior to his phone call with his lawyer that morning. Sgt. Climenhaga remained in the car for a significant portion of the hospital visit, including when Mr. Roberts was asked by a nurse whether he was on any medications.

He confirmed that he took Ritalin and another medication for his ADHD, the name of which he couldn’t remember. Cst. Leclair was present for this exchange and knew about Mr. Roberts’ medications, but neglected to inform Sgt. Climenhaga of as much when they reconvened in the car. [ 86 ] At one point during the cautioned interview, Cpl. Girard presented Mr. Roberts with a video of his girlfriend’s interview with police in which she was describing the interactions with BP and SV prior to the altercation that led to Mr. Roberts’ arrest. She can clearly be heard saying that they called Mr.

Roberts “autistic” and “a retard”, to which Cst. St. Onge said to Mr. Roberts, “is that true? This-- what was this chic saying to you?” While these out-of-court statements are not to be taken for the truth of their contents, investigators already knew Mr. Roberts had certain cognitive disabilities and was on AISH. The comments about him being called “autistic” and “a retard” were obtained prior to his cautioned interview and should have further reinforced the inference that Mr. Roberts might have significant cognitive disabilities that could impair his ability to understand and exercise his 10(

b) advice. iv. Indications of Mr. Roberts’ actual understanding Before the cautioned interview [ 87 ] Upon retrieving Mr. Roberts from his cell after his 15-minute phone call with his lawyer, Sgt. Climenhaga said: “okay, Jesse. You satisfied with your lawyer call?” Roberts replied, “yes”. In the car on the way to the hospital, Sgt. Climenhaga then asked, “how are you feeling, bud? Do you feel better now you talked to your lawyer?” Mr. Roberts replied, “a lot better”. [ 88 ] However, Sgt. Climenhaga and Cst. Leclair also had multiple interactions with Mr.

Roberts prior to his formal cautioned interview that indicated he had difficulty understanding basic questions and legal instructions. [ 89 ] For example, as Sgt. Climenhaga was re-arresting Mr. Roberts, she asked him whether he understood that he was being arrested for the attempted murder of BP, to which Mr. Roberts confirmed he understood. Yet, when asked whether he understood that he was also being arrested for the attempted murder of SV, Mr. Roberts replied, “not really, no.

I don’t understand that one.” He then proceeded to explain “that one” was an accident, as opposed to answering the question of whether he understood that he was being arrested for the charge of attempted murder. [ 90 ] Sgt. Climenhaga again asked whether he understood what he had been arrested for, to which Mr. Roberts said, “yeah, I understand.” When asked what the charges meant to him, however, he replied, “that means to me is I’m in trouble, big, big shit.” Again, Sgt. Climenhaga asked what the offences were that he’d been arrested for, to which Mr. Roberts replied, “some things....

Ah, the guy and the girl.” They continued to go back and forth several more times until Mr. Roberts was finally able to articulate the charges of “attempted murder and attempted murder”. [ 91 ] After the belaboured confirmation of Mr. Roberts’ understanding of the upgraded charges, Sgt. Climenhaga read Mr. Roberts the Wittwer warning. She then asked what it meant to him, to which he responded, “ah, it means -- means a lot.” Sgt. Climenhaga proceeded to explain that anything he’d said previously to officers following his arrest could be disregarded and he’d have a “fresh start” with her. At that point, Mr.

Roberts confirmed he understood. Importantly, however, the Wittwer warning did not refer to the previous breach of his 10(

b) rights, and Mr. Roberts did not confirm that he understood why his previous statements to police might be distinguished from subsequent statements. [ 92 ] While on the way to the hospital in the police vehicle, Sgt. Climenhaga began asking Mr. Roberts benign questions about where he was from, if he graduated high school, whether he had lots of friends and family etc. He initially answered the questions freely, but when asked if he had any post-secondary schooling, Mr. Roberts replied, “my lawyer told me not to say anything very much”.

In addition to the obvious inaccuracy in his recitation of his lawyer’s advice, Mr. Roberts’ attempt to assert his right to silence at that point — when he had already answered similarly benign questions and would continue to do so — indicated his potential misunderstanding of his lawyer’s advice regarding how and when to assert his right to silence. [ 93 ] During the hospital visit, Mr. Roberts demonstrated a persistent lack of appreciation for the investigative stage of the criminal

process after speaking with his lawyer. He told Cst. Leclair that he was “nervous with what the judge says...you know, I’m not the judge and the judge could put me in for -- like some people go in for life; some people don’t.” While this would suggest he had some understanding of the gravity of the situation, other comments betrayed a lack of appreciation for the jeopardy he faced. At one point, Cst. Leclair commended Mr. Roberts for being “a pretty honest guy”, to which Mr. Roberts replied, “like I said, I’d always wanted to be a police officer but I kinda ruined myself.

But then again take some time or something until this stuff is done and maybe I could try out.” He later confided in Cst. Leclair that he didn’t have many friends, and that he “wouldn’t mind having a friend that’s an officer.” [ 94 ] Later, after the hospital visit and before the cautioned interview, Sgt. Climenhaga attempted to confirm that no police officers had threatened Mr. Roberts or made him any promises, to which he replied, “there’s been threats -- from them two...the ones that were charging me for what I did.” Sgt.

Climenhaga confirmed she was talking about “the people that you got in your altercation with” and clarified that she was only asking if he had received any threats or promises from “police officers, nurses, or anyone who was in charge of you.” Mr. Roberts immediately replied, “ah, my baker.... Like my -- actually my baker my baker...The guy actually whipped out a knife on me and put it up to my jaw.” Sgt. Climenhaga further clarified that she was talking about threats “since the police started dealing with [him]”, at which point Mr. Roberts finally confirmed he hadn’t received any threats or promises from police.

During the cautioned interview [ 95 ] At the beginning of the interview, Cst. St. Onge again attempted to advise Mr. Roberts that police officers weren’t allowed to threaten or promise him anything. Mr. Roberts interjected, saying “I love cooperating with the officers.... ‘Cause then happy officers, happy life. Mad officers, no’ -- not a happy life.” [ 96 ] Shortly after, Mr. Roberts said, “let me tell you the story.... ‘Cause I’m telling my lawyer the exact same thing I’m telling you guys.

So, and then there’s no -- gonna be a backwash, so you guys can’t turn it -- around and -- get me in trouble in a way, because I’m -- tell you the -- truth.” This statement betrayed Mr. Roberts’ belief that, as long as he told police and his lawyer the same story, those statements couldn’t be used against him, regardless of whether they inculpated him. Not only did this reveal that Mr.

Roberts may have misunderstood the role of his lawyer and the confidential nature of their conversations, it also revealed that he wanted to talk to his lawyer about what had happened before telling his story to police. [ 97 ] The potential that his consultation with his lawyer was inadequate was further cemented by Mr. Roberts’ comments about his side of the story minutes later when he said, “some officers can turn it around and go against me.... I -- do not want that to happen. That’s why -- I demand speaking to my lawyer -- before I do all this.” From this statement, it was reasonably inferable that Mr.

Roberts may not have had an adequate opportunity to inform his lawyer of what had happened and receive advice regarding whether to cooperate with the investigation. It can further be inferred that Mr. Roberts may not have been equipped with the necessary advice to assert his right to silence. [ 98 ] Mr. Roberts’ belief that he would have an opportunity to speak with his lawyer again before being interviewed was revealed later when, faced with a question about the events the day before, he said, “I want my lawyer, man, for this. I wanna talk to my lawyer.” Cst. St.

Onge replied, “you’ve got an opportunity to talk with your lawyer already.... your -- lawyer’s not coming down here, Buddy. You know that.” Mr. Roberts then replied, “‘cause you guys are holding him up.... You guys don’t want him in.” Mr. Roberts’ understanding that his lawyer was coming to speak with him was reinforced later in the interview when, having provided numerous incriminating statements, he told Sgt. Climenhaga despondently, “I should let my dad call off the lawyer too.” [1] [ 99 ] On cross-examination, Cst. St. Onge admitted that Mr.

Roberts’ comments about police holding up his lawyer were concerning, and, in hindsight, he would have explained to Mr. Roberts that his lawyer wasn’t coming to speak with him. He also admitted that he would have asked Mr. Roberts whether his initial conversation with his lawyer was cut short because he thought he would have an additional opportunity to speak with him in person before being interviewed. [ 100 ] Near the end of the cautioned interview, after making a series of incriminating statements, Mr.

Roberts broke down crying and said “my lawyer didn’t -- my lawyer didn’t want me to have interviews...”, to which Sgt. Climenhaga said “you chose a different path”. On cross-examination, however, Sgt. Climenhaga admitted to knowing he didn’t have a choice of whether to interview, and that Mr. Roberts was mistaken in his understanding of his lawyer’s advice. Mr. Roberts’ surficial understanding [ 101 ] At this juncture, it is worth noting that the record demonstrates Mr. Roberts was able to repeat legal instructions provided by interrogators and his lawyer.

Indeed, he frequently parroted his lawyer’s advice that he should remain silent because what he said could be used against him. Viewed in isolation, these superficial indications that he understood his 10(

b) advice belied Mr. Roberts’ actual comprehension of his legal advice and his corollary ability to assert his rights. Given the totality of the circumstances, it is clear that Mr. Roberts possessed only a surficial understanding of his 10(

b) advice. This was evidenced in part by his frequent misstatements of his lawyer’s advice, his belief that his lawyer was coming down to speak with him prior to him being interviewed, and, ultimately, his inability to effectively assert his right to silence or follow his lawyer’s advice in the face of the initial mild police interrogative techniques. [ 102 ] The formalistic approach police took to the interrogation of Mr. Roberts and the implementation of his10(

b) rights neglected to account for his objectively perceivable vulnerabilities that diminished his ability to comprehend and assert his rights effectively. v. Police understood Mr. Roberts was vulnerable [ 103 ] In addition to the pointed questions about Mr. Roberts’ disabilities, several interactions betrayed Sgt. Climenhaga’s and Cst. Leclair’s actual understanding that Mr. Roberts was a vulnerable person. [ 104 ] For example, at one point after Mr. Roberts professed his intention to cooperate with police, Sgt. Climenhaga remarked, “it’s

surprising. I didn’t expect you to be what you are...I think I had a different idea of what I was gonna be dealing with today...In my worldbecause I deal with a lot of people who are involved in murders, like not attempt murders but like real murders, they’re usually no so like,-- ‘I’ll be cooperative, I’ll do this,’ or whatever.” [105] Sgt. Climenhaga and Cst. Leclair proceeded to comment on how it was not normal that Mr. Roberts was already proned-outwaiting to be arrested when Csts. Crockett and Leclair arrived at his parents’ property. [106] The tone and language with which Sgt. Climenhaga spoke to Mr.

Roberts was also particularly telling of her understanding thatMr. Roberts was vulnerable. Upon learning his age, Sgt. Climenhaga proceeded to tell Mr. Roberts her daughter is only a bit youngerthan him and that she “probably could have been [his] mom.” She frequently spoke to Mr.

Roberts as if he was a child, for example, bysaying “you and me kiddo” before leaving him to speak with his lawyer; by repeatedly calling him “sweetheart” (14x) or “sweetie” (6x)in his cautioned interview; telling him she was proud of him for not blaming anyone else; and suggesting there were two sides to thestory by saying “there’s more than one side to a pancake, right?” [107] On cross-examination, Cst. St. Onge also admitted he knew Mr. Roberts had cognitive disabilities. In answer to the question ofwhether there was anyone in law enforcement responsible for interviewing vulnerable individuals, Cst. St.

Onge cited the “ZebraCentre”, which he described as an organization they would use “for interviewing children or people with severe learning disabilities orvulnerabilities.” He then admitted that it would have been a good idea to call them for support with interviewing Mr. Roberts.Notwithstanding the fact that the Zebra Centre only supports children and youth, Cst. St. Onge’s responses indicate his subjectiveawareness of the fact that Mr. Roberts had cognitive deficiencies that may have warranted additional procedural protections in a policeinterview. [108] On re-examination, the Crown asked Cst. St.

Onge whether Mr. Roberts told him about his “diagnoses” or that he wasprescribed medication for ADHD, to which he confirmed Mr. Roberts did not. Whether investigators were individually informed of Mr.Roberts potential vulnerabilities is, however, irrelevant. I find the Supreme Court’s direction that police need to be alive to the personalcharacteristics of detainees that bear on their understanding and capacity to understand (Lafrance at para 79) necessitates the sharing ofsuch information between investigators based on their individual interactions with a detainee.

Only then can each individual officer beequipped with an understanding of the surrounding circumstances — including a detainee’s potential vulnerabilities — to adequatelyidentify indications that a detainee might not understand their 10(

b) advice. vi. The breaches of 10(b) [109] The significant difficulty Mr. Roberts had articulating the charges he faced and responding to other legal instructions raised anumber of risks to him obtaining adequate 10(

b) advice. For instance, Mr. Roberts may have lacked the ability to understand andcommunicate the facts surrounding his arrest and detention and the legal jeopardy he faced to his lawyer so that he could receiveadequate advice relevant to his situation. Further, Mr. Roberts may have lacked the capacity to understand his lawyers’ advice regardinghis rights, including his right to silence and how to assert it. [110] I find that police could reasonably infer from their interactions with Mr. Roberts prior to his phone call with his counsel ofchoice that those risks were real.

The risks were heightened by the fact that police didn’t know whether Mr. Roberts had access to hismedication for ADHD before his phone call with his lawyer and his cautioned interview. In view of these objectively observable risks, Ifind that police were obligated to confirm that Mr. Roberts understood his 10(

b) advice in addition to querying whether he was satisfiedwith his lawyer call. I find the failure to do so constituted a breach of Mr. Roberts’

section 10(

b) rights. [111] This should not be taken to suggest that police could have definitively discharged their implementational duties regardingsection 10(

b) merely by securing an affirmative answer to the question of whether Mr. Roberts understood his 10(

b) advice. Aware thatMr. Roberts may have lacked the capacity to adequately understand and assert his lawyer’s advice, police needed to be alive to anysubsequent indications that Mr. Roberts may not have understood his advice (Lafrance at para 79). [112] This is in keeping with Chief Justice Wagner’s reminder in R v CP, 2021 SCC 19 that “all accused must beaccorded adequate procedural safeguards against wrongful convictions or other miscarriages of justice in the criminal process” (at para132, emphasis in original). This principle of fundamental justice animates the context-specific requirements of

section 10(b), which “‘arenot immutable’, but ‘vary according to the context in which they are invoked’” (R v CP at para 132, citing R v Lyons, (SCC), [1987] 2 SCR 309 at 361). Just as the adequacy of procedural protections subsumed by the right to counsel are sensitive to thevulnerabilities of children and youth (R v CP at para 132), they must be sensitive to other potential areas of vulnerability, including race,mental health, language comprehension, and, in Mr. Roberts’ case, cognitive capacity (Lafrance at para 79). [113] The Crown relies on Willier (at para 42) for the proposition that police were entitled to assume Mr. Roberts understood his10(

b) advice because he didn’t explicitly express otherwise. For most detainees, it may very well be that

section 10(b)’s purpose isfulfilled through the opportunity to consult with counsel prior to speaking to police. Mature adults may be capable of making informedchoices based on the advice given to them in their initial consultation and, if they end up making an inculpatory statement, they maylikely have to live with the consequences.

To presume that this principle applies to all adults, however, would ignore the context-specificapproach the Supreme Court has directed for individuals who present with vulnerabilities (Lafrance at para 75) based on what officers“should reasonably infer from the surrounding circumstances” (Keror at para 45). [114] For good reason, the arrest script Sgt. Climenhaga used to re-arrest Mr.

Roberts on the morning of July 30 contained a promptfor her to confirm he understood his legal advice: “did you understand the advice given to you?” The inclusion of this question on thecontext-specific script suggests the interview team was aware Mr. Roberts might not comprehend his 10(

b) advice. Yet, Sgt. Climenhaganever asked Mr. Roberts that question. She only asked if he was “satisfied” with his lawyer call. [115] The arrest script contained several other questions that were never asked, including: “did your lawyer say he or she was comingdown?” and “are you on any medication?” At trial, Sgt. Climenhaga said she didn’t ask the foregoing questions because her priority wasto get Mr. Roberts to the hospital and, in any event, she believed they weren’t legally required. Upon obtaining his confirmation that he

was satisfied with his lawyer call, Sgt. Climenhaga believed Mr. Roberts’10(

b) rights had been sufficiently implemented. [ 116 ] When asked on cross-examination to enumerate circumstances that would trigger a detainee’s right to a supplemental consultation with a lawyer, Sgt. Climenhaga listed:

i) a call-back from the detainee’s lawyer suggesting there was something significant they needed to speak with them about; ii) a change in legal jeopardy; iii) if the detainee told her that they received poor legal advice and wanted to speak with another lawyer; and iv) if the detainee said they were unsatisfied with their advice. She concluded by saying “it could be a few different things like that that would trigger that request.” Noticeably missing from her account, however, was objective indications that a detainee may not have understood their lawyer’s advice. [ 117 ] Later, on cross-examination, Sgt.

Climenhaga stated that “a lot of people have different issues, addictions, disabilities, things like that...I’m not a doctor. I’m not a person who would choose whether somebody understood or not.” She proceeded to explain that she asked Mr. Roberts questions about his schooling, living situation, etc. to ascertain whether “he was able to understand what was happening around him.” She repeated that she’s not his doctor, however, and suggested a specialist would be required in response to the question of whether his ADHD and the fact that he was on AISH should have triggered her to inquire whether Mr.

Roberts understood his right to counsel. [ 118 ] Contrary to those statements, I find Sgt. Climenhaga was obligated to assess whether Mr. Roberts understood his 10(

b) advice and was obligated to account for his potential cognitive disabilities in that assessment. It is true that police are not required to make medical diagnoses of detainees’ disabilities; however, our society entrusts trained professionals like Sgt. Climenhaga with making reasonable inferences about detainees’ capacity to understand and actual understanding of their legal advice. When there are indications that a detainee has cognitive disabilities, it is incumbent upon investigators to make further enquiries as to the nature of those vulnerabilities so that they can be alive to any objective indications that the detainee may not have understood their 10(

b) advice. Only then can police scrupulously ensure detainees’ Charter rights are proactively respected during the investigative stage of the criminal process. [ 119 ] At this juncture, I find it necessary to re-emphasize that the third Sinclair category of changed circumstances triggering an additional consultation with counsel — indications that a detainee may not have understood their initial 10(

b) advice — must be assessed from the situation on the ground. This includes objective indicia that police were presented with during the investigation. It does not include an accused’s mannerisms in court or post-offence medical assessments tendered in evidence. The latter may be relevant to voluntariness or the reliability of statements admitted into evidence at trial, but are of no help to police when making real-time assessments of whether detainees understand their right to counsel and 10(

b) advice. Hence why it is so important for police to diligently gather information about a detainee’s potential vulnerabilities that bear on their capacity to understand legal instructions when those objective indicia arise ( Lafrance at para 79 ). [ 120 ] I find that police were aware they were dealing with an individual with cognitive disabilities and should have inferred that Mr. Roberts might have difficulty understanding and asserting his 10(

b) advice. It was thus incumbent on police to scrupulously ensure Mr. Roberts understood his 10(

b) advice ( Evans at 875). When the foregoing objective indications that he might not have understood his 10(

b) advice arose prior to and during his cautioned interview, police were obligated to provide him with a supplementary opportunity to consult with his lawyer. Their failure to do so also constituted a breach of Mr. Roberts’ 10(

b) rights. b. Did police undermine the Accused’s 10(

b) advice? i. Legal framework [ 121 ] The Supreme Court recently reaffirmed the Sinclair Court’s basis for invoking the right to a second consultation with counsel where police have undermined their lawyer’s advice in R v Dussault , 2022 SCC 16 at para 77 [ Dussault ]: Simply put, the purpose of s. 10(

b) is to provide the detainee with an opportunity to obtain legal advice relevant to their legal situation. As noted earlier, the legal advice is intended to ensure that “the detainee’s decision to cooperate with the investigation or decline to do so is free and informed”. The legal advice received by a detainee can fulfill this function only if the detainee regards it as legally correct and trustworthy. The purpose of s. 10(

b) will be frustrated by police conduct that causes the detainee to doubt the legal correctness of the advice they have received or the trustworthiness of the lawyer who provided it. Police conduct of this sort is properly said to “undermine” the legal advice that the detainee has received.

If there are objectively observable indicators that the legal advice provided to a detainee has been undermined, the right to a second consultation arises. [emphasis added] [ 122 ] As previously noted, the Lafrance majority also held that the purpose for ensuring a detainee is sufficiently informed of their right to silence and the benefits and drawbacks of cooperating with a police investigation is to mitigate the imbalance of power between police and detainees (at paras 77–78).

Justice Brown stressed that the legal disadvantage of a detainee relative to the state is not trivial ( Lafrance at para 77 ): This disadvantage is no small matter, particularly given that the police may employ tactics such as lying during an interrogation. It is only by ensuring that detainees obtain legal advice that accounts for the particular situation they face , conveyed in a manner they can understand , that s. 10(

b) can meaningfully redress the imbalance of power between the state (whose agents know the detainee’s rights) and the detainee (who may not). [emphasis in original] [ 123 ] It follows that where police undermine a detainee’s initial legal advice, they will have undermined the mitigating effect of that advice on the detainee’s legal disadvantage relative to the state. The right to supplementary consultation thus arises to further redress the imbalance of power between the detainee and the state. Police conduct that has the effect of “undermining legal advice” [ 124 ] The Sinclair Court did not elaborate on the type of conduct that might undermine a detainee’s legal advice except to cite the

case of R v Burlingham, (SCC), [1995] 2 SCR 206 [Burlingham] (Sinclair at para 52). In Burlingham, policebelittled the accused’s counsel by disparaging their “loyalty, commitment, availability, as well as the amount of his legal fees” (at para4).

This conduct had the effect of undermining the accused’s confidence in their counsel and, by extension, their advice. [125] Following Sinclair, there has been some ambiguity as to whether police conduct other than that which intentionally belittles anaccused’s lawyer can have the effect of undermining their legal advice such that the right to a supplementary consultation arises.

Forexample, some courts have narrowly considered police conduct that undermines an accused’s legal advice to only be that whichintentionally or egregiously undermines an accused’s confidence in or relationship with counsel (e.g., R v Smith, 2015 ABQB 624 atparas 72–75; R v Shannon, 2012 BCSC 1519 at paras 70–85). [126] The unanimous Dussault Court clarified that the analysis is not limited to whether police intended to undermine the accused’slegal advice or did so by expressly belittling their defence counsel; rather, the focus is on the effect of the police conduct and whether itdistorted, nullified, or otherwise undermined the accused’s legal advice (at paras 42–44).

Consequently, there can be conduct other thanthe express belittlement of defence counsel that undermines the accused’s legal advice (Dussault at para 44, citing Azonwanna at paras122, 148–149). [127] In Azonwanna, while explaining the primary police caution, a detective told the accused “that if he spoke, that evidence couldbe presented ‘in your own defence’” (at para 122). This was a legally erroneous proposition given that a defendant’s presentation of theirown exculpatory statement in their defence would amount to self-serving evidence.

The trial judge found that the foregoing statementundermined duty counsel’s advice regarding the right to silence by inducing the detainee to speak against their counsel’s advice (at paras148–149). Additionally, the detective undermined the advice of counsel by “repeatedly downplaying the seriousness of the allegationsthat [the accused] was facing” (at para 122). [128] Legally fallible or misleading propositions with the potential to undermine a detainee’s legal advice were also canvassed in R vSmith, 2011 BCSC 1695 at paras 149–150 [Smith]. These non-exhaustive propositions include

i) suggesting that a co-accused’sstatement will be admissible against the accused; ii) suggesting that an accused can correct another witness’ statement by telling theirside of the story; iii) suggesting that police need the accused’s version of events to direct the investigation in a manner favourable to theaccused, or otherwise suggesting that an accused can positively influence the course of the proceedings against them by speaking withpolice; and iv)

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