HIS MAJESTY THE KING, – v. –, 2023 NBKB 168

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON His Majesty the King v. Sean Patrick Patterson & Henry Alexander Joseph Pottie 2023 NBKB 168 MCR/15/2021 BETWEEN: HIS MAJESTY THE KING, – and – SEAN PATRICK PATTERSON & HENRY ALEXANDER JOSEPH POTTIE DECISION Charter Application by Sean Patrick Patterson pursuant to s. 10(

b) of the Charter BEFORE: Justice Robert M. Dysart AT: Moncton, New Brunswick DATES OF HEARING: February 6 to 14, 2023 DATE OF DECISION: March 28, 2023 APPEARANCES: Maurice Blanchard & Guillaume Rigucci, for the Crown Jason Dempsey & Daniel Gallant, for Mr. Patterson Vincent Dubuc, for Mr. Pottie

DYSART, J. INTRODUCTION [ 1 ] Sean Patrick Patterson and Henry Alexander Joseph Pottie are charged with first degree murder in the death of James Frank Leard on or about May 25 th , 2021, in Upper Cape, New Brunswick. [ 2 ] Their trial by judge and jury is scheduled to commence on April 17, 2023, in Moncton. [ 3 ] Mr. Patterson, who gave a series of statements to police over the course of the investigation and following his arrest, filed an Application seeking a declaration that his right to retain and instruct legal counsel, as guaranteed in s. 10(

b) of the Charter of Rights and Freedoms , was breached by police. He seeks to exclude the warned caution statement he gave to police on June 5, 2021 from the evidence at trial. [ 4 ] The matter was heard by way of a blended voir dire from February 6 through 14, 2023. [ 5 ] On February 17, 2023, the Court issued its decision, dismissing the Application, with reasons to follow. These are those reasons. [ 6 ] Mr. Patterson filed a Notice of Application and two affidavits in support, both of which were admitted into evidence – one sworn by Mr. Patterson and one sworn by his stepfather, Shawn White.

The Court also heard viva voce testimony from two RCMP officers – Cst. William Hachey and Cst. Carl Champagne – and both Mr. Patterson and Mr. White were cross-examined on their affidavits. NOTICE OF APPLICATION [ 7 ] In his Notice of Application, Mr.

Patterson alleges a number of violations of his right to retain and instruct counsel, including: • That police did not provide him with an opportunity to speak to counsel immediately following his arrest; • That police refused to allow him to speak directly with his parents, and instead acted as a go-between for those communications; • That police improperly required him to sign a waiver, allowing them to disclose to his parents the nature of the charge against him; • That police improperly disclosed to his stepfather that Mr.

Patterson had, prior to the call to the stepfather, already consulted with a lawyer provided through Legal Aid; • That police failed to correctly convey or communicate to Mr. Patterson what was said to, and what was said by his stepfather in the discussions with police; and • That police failed to facilitate further access to legal counsel, over and above Legal Aid, before questioning Mr. Patterson. [ 8 ] Mr. Patterson argues that he was confused at the time of his arrest and did not know whether to speak with a lawyer provided by Legal Aid, or whether he should speak to a private lawyer.

He says the police constable he dealt with was abrupt and rude and gave him the impression that he had no time to make his decision. Mr. Patterson states that he did not know the name of his stepfather’s lawyer and wanted the lawyer’s name and phone number, and he argues that he should have been allowed to speak to his parents directly. [ 9 ] Mr. Patterson argues that he is unsophisticated and relied on police, and he further argues that the police took control of the communications with his stepfather and, in so doing, failed to properly communicate Mr. Patterson’s situation. Mr.

Patterson argues that he was steered by police to Legal Aid.

Affidavit of Sean Patrick Patterson sworn January 4, 2023 [ 10 ] Mr. Patterson attaches as Exhibit A to his affidavit a copy of the transcript of the audio recording of his interactions with police from the time of his arrest until he is made available to the Major Crimes Unit (MCU) for questioning. It should be noted that the Court also received into evidence the audio recording and listened to it during the voir dire. [ 11 ] Mr. Patterson indicates that he was arrested on June 5, 2021 at approximately 11:50 AM by Cst. Carl Champagne at 2039 Upper Aboujagane Road, near Sackville, New Brunswick.

He was arrested in relation to the death of Jamie Leard. [ 12 ] He indicates that at the time of his arrest, he had just been released from hospital the previous day, having sustained injuries (including head injuries) as a result of a collision between a motor vehicle and an all-terrain vehicle. He describes it as a hit-and-run. [ 13 ] Mr. Patterson indicates that he had never been held by police prior to that day. After his arrest, he was transported by Cst. Champagne to the RCMP detachment in Shediac, New Brunswick.

He indicates in his affidavit that he was having a difficult time understanding what was happening to him. He was confused about why he was being arrested for murder. [ 14 ] Upon arrival at the detachment, Mr. Patterson states that he was placed in an interview room and was told by Cst. Champagne that he could contact a lawyer. He described Cst. Champagne as “abrupt and impatient.” He says that as a native of Nova Scotia, he was not accustomed to Cst. Champagne’s “accent and manner of speaking” - presumably, he was referring to the fact that Cst.

Champagne’s first language is French, and he speaks English with an accent. [ 15 ] Mr. Patterson states in his affidavit: “Cst. Champagne’s offer of access to a legal aid lawyer did not feel like a choice between options. I had questions but felt anxious and had a hard time maintaining my train of thought. He suggested that I had a right to call another lawyer of my choosing, but it was like I had to make the choice without time to think. It didn't feel like my answer would have made any difference to the result.” [ 16 ] Mr. Patterson indicates that he was flustered and that Cst.

Champagne’s “physical demeanor and way he was speaking” made Mr. Patterson feel rushed, and that he had to go along with what Cst. Champagne wanted. “I felt like me talking to legal aid was in his interests, not mine.” [ 17 ] Mr. Patterson acknowledges that he spoke to a lawyer provided through Legal Aid for approximately 20 minutes.

That said, he states that he was not able to understand what the lawyer told him, and that the information was not “sinking in.” He indicates in his affidavit that he was worried that he had not had an opportunity to ask whether he needed a Nova Scotia lawyer, since he was originally from that province. He also notes that it was a Saturday afternoon, and he had no money. [ 18 ] Mr. Patterson indicates that he wanted to speak to a lawyer who could explain things in plain language. He indicates that his parents were the only people he could think of to help him find such a lawyer. He told Cst.

Champagne that he wanted to speak to his parents but was told that he was not allowed. He states that he was aware that his parents had gone to a lawyer before, and that he told Cst. Champagne that he wanted to speak to his parents in order to get the name of their lawyer. This was refused. “I just wanted them to know I needed help with a lawyer.” [ 19 ] He states that Cst. Champagne eventually agreed to call his stepfather for him, but first made him sign a document authorizing Cst. Champagne to share information with his stepfather. Cst. Champagne indicated that he would only disclose the charge Mr.

Patterson was facing. “Constable Champagne took control of the process. I had no access to the call and depended on Constable Champagne to conduct himself in good faith.” [ 20 ] His affidavit goes on: “When the constable came back from speaking to my stepfather, he told me I was on my own. He didn't tell me if a lawyer had been recommended. He didn't tell me what he had told my stepfather and he didn't provide any context for their conversation. […]

Based upon the representations made by Constable Champagne I believed that I had no further rights to a lawyer.” Affidavit of Shawn White [ 21 ] Mr. White indicates that on June 5th, 2021 at approximately 2:45 PM, he received a telephone call from Cst. Champagne, advising that his stepson, Sean Patrick Patterson, had been arrested. His affidavit reads: “Constable Champagne said he was calling to see if I would hire a lawyer for Sean. When I asked to speak to Sean the constable refused. He also refused to give me information with regards to the arrest.” [ 22 ] Mr. White indicates that he told Cst.

Champagne that he needed time to discuss the matter with his spouse, i.e. Mr. Patterson’s mother. He states he confided to Cst. Champagne that he was concerned about spending money on a lawyer without being provided adequate information as to “what Sean needed.” [ 23 ] Mr. White indicates that he then called Cst. Champagne and had a 7-minute conversation. He states in his affidavit: “On the second call, the constable assured me that Sean had already spoken to a lawyer.

Absent any further details or the opportunity to speak to Sean myself, I concluded that Sean had been provided with counsel and was satisfied with the legal advice he was getting.” [ 24 ] Mr. White indicates that Cst. Champagne failed to disclose that Mr. Patterson’s request to speak to him about retaining a lawyer occurred after Mr. Patterson had already spoken with a lawyer provided through Legal Aid. “Constable Champagne did not disclose that Sean had expressed a wish to retain private counsel after his telephone call with legal aid.

It was my honest belief after speaking with Constable Champagne that Sean had spoken to a lawyer and was satisfied with the advice he was given before being submitted to questioning” VIVA VOCE EVIDENCE Cst. William Hachey [ 25 ] Cst. Hachey testified that he has been a member of the RCMP for approximately the last 4 ½ years. [ 26 ] On June 5, 2021, he was tasked with assisting the MCU by transporting Mr. Patterson following his arrest, bringing him to the RCMP detachment in Shediac, New Brunswick. He testified that he attended a morning briefing and was instructed as to his role. [ 27 ] Cst.

Hachey testified that he was instructed to proceed with Cst. Champagne to a church located on the Upper Aboujagane Road, near Sackville, New Brunswick, and to wait until they received instructions to proceed to the residence where the arrest would take place. [ 28 ] He testified that when they arrived at that residence, also located on the Upper Aboujagane Road, Mr. Patterson had already been arrested and had already been placed in handcuffs, to the best of his recollection. He testified that there were approximately 10 or more officers on scene. Mr.

Patterson was transferred to his custody, and he personally brought Mr. Patterson to his police vehicle and placed him in the rear seat. [ 29 ] Cst. Hachey testified that Cst. Champagne then entered the vehicle in order to read Mr. Patterson his rights from a script which had been prepared by the MCU, and which was circulated to officers at the morning briefing. He testified that he was not in the vehicle at the time, and he did not hear Cst. Champagne read Mr. Patterson his rights, but he observed him through the window and saw that he had the script in his hands. [ 30 ] Cst.

Hachey testified that they left the location at 11:58 AM. He was driving, while Cst. Champagne was in the front seat. Mr. Patterson remained in the rear seat. They arrived at the Shediac detachment at 12:32PM, and he then removed Mr. Patterson from the vehicle and transferred him to a member of the MCU, he believes.

[ 31 ] Cst. Hachey did not have any conversations with Mr. Patterson. He testified that everything that occurred with Mr. Patterson was audio recorded, and he recalls observing an audio recorder in Cst. Champagne’s hand at all times. [ 32 ] On cross-examination, Cst. Hachey confirmed that Mr. Patterson had some visible injuries at the time of his arrest. Cst. Hachey had been aware of a previous hit-and-run incident, and he knew that Mr. Patterson had been hospitalized as a result of that accident. He testified that he was the officer who responded to that call on the Upper Cape Road in Upper Cape, New Brunswick.

Cst. Carl Champagne [ 33 ] Cst. Champagne testified that he is currently with the Provincial Crime Prevention Unit in Richibucto, New Brunswick. In 2021, at the time of Mr. Patterson’s arrest, he was with the Crime Prevention Unit at the Shediac detachment. [ 34 ] Cst. Champagne testified that on June 5, 2021, he was tasked with assisting the MCU with the arrest of Sean Patterson. He testified that he attended a morning briefing, and he understood that Mr. Patterson and other individuals were at a residence on the Upper Aboujagane Road near Sackville.

He testified that they made their way to that residence once they received a call from the MCU. [ 35 ] Upon arrival, Cst. Champagne testified that he assisted in the arrest of Mr. Pottie, who was in a trailer at the back of the home. Mr. Pottie was then turned over to another officer. Cst. Champagne testified that, in the meantime, Mr. Patterson, who had already been arrested, was turned over to Cst. Hachey. Cst. Champagne did not witness Mr. Patterson’s arrest. He testified that Cst. Hachey searched Mr. Patterson and then placed him in the rear of their police vehicle. [ 36 ] Cst.

Champagne testified that he then got into the front passenger seat of the police vehicle and spoke with Mr. Patterson. He testified that he advised Mr. Patterson that he was being arrested for the homicide of Jamie Leard. He testified that Mr. Patterson initially seemed confused as to why he was being arrested for a homicide. [ 37 ] After confirming Mr. Patterson’s choice language, he testified that he then read Mr. Patterson his rights from a script that had been prepared by the MCU and which had been given to him at the morning briefing. He read it to Mr. Patterson and then recorded Mr.

Patterson’s answers in writing. He confirmed that all of his interactions with Mr. Patterson were recorded on an audio recorder. That audio recording was entered as an exhibit at the voir dire and was played in the courtroom. Below are the key excerpts from the audio recording. [Note: the Court relied on the transcript except where, in the Court’s view, the transcript did not accurately reflect the recording – which governs.] [ 38 ] The recording commences at the scene of the arrest, at the residence on Upper Aboujagane Road in the police vehicle: CHAMPAGNE: `Kay.

See Sean PATTERSON, I'm arresting you, by the way I'm, uh, Constable Carl CHAMPAGNE, okay? Sean PATTERSON, I'm arresting you for the murder of Jamie LEARD, on, or about, the 25th of May, 2021, at, or near, Upper Cape, in the County of Westmorland and Province of New Brunswick, contrary to

Section 235 of the Criminal Code of Canada . Do you understand? Do you understand? PATTERSON: Yeah, I guess so. CHAMPAGNE: Yes, or no sir? PATTERSON: I just don't understand why I'm being charged with murder. CHAMPAGNE: But do you understand what I read to you? PATTERSON: Yes, I understand what you read to me.

CHAMPAGNE: Okay. (pause) And I'll repeat, Sean PATTERSON, I'm arresting you for the murder of Jamie LEARD, on, or about, of, uh, May 25th, 2021, at, or near, Upper Cape, in the County of Westmorland, in Province of New Brunswick, contrary to

Section 235 of the, uh, Criminal Code of Canada . 'Kay sir, before you say anything, it is my duty to inform you that you have the right to retain, and instruct, legal counsel without delay. Do you understand? … Yes, or no sir? PATTERSON: Yes. CHAMPAGNE: Just speak louder please. PATTERSON: I'm sorry, I’m a little sore. CHAMPAGNE: Okay. PATTERSON: But, yes I understand. CHAMPAGNE: Yes, you understand. PATTERSON: Can I ask something? CHAMPAGNE: Just a moment, uh, we'll go over ev- -- over this, it's very important for you. It's your right, and we'll finish that first, okay?

You have the right to telephone the, the lawyer of your choice. You also have the right to free advice from a Legal Aid lawyer. If you are later charged with an offense, you may apply to Legal Aid for assistance. You have the right to speak to a lawyer in private. If you wish to speak to a lawyer, you can call a lawyer of your choice, or you can call duty counsel, at no cost to you for free legal advice. Do you understand? PATTERSON: Yes. CHAMPAGNE: Huh? PATTERSON: Yes, sir. CHAMPAGNE: Y-, -- yes? PATTERSON: Yes, sorry. CHAMPAGNE: `Kay. Thank you. What do you want to do about your right to contact a lawyer?

PATTERSON: I don't have a lawyer. CHAMPAGNE: `Kay. Like I said, you can speak with Legal Aid, or we can offer you the the phone book, and you can pick a lawyer in the phone book.

PATTERSON: Uh, Legal A-, probably Legal Aid, I guess. CHAMPAGNE: `Kay. PATTERSON: I-, I don't know. CHAMPAGNE: `Kay, like I said sir, you'll have the choice to call Legal Aid, or you have the choice to speak to a lawyer of your choice. What I'll do, I'll provide you a list, of lawyer-, of lawyer in the -- on the phone book? And you can pick one, or we can call duty counsel for free advice. Okay? You understand that? 'Kay. You need not say anything, you have nothing to hope from any promise, or favor, and nothing to fear from any threat, whether or not you say anything. Anything you say may be given in evidence.

Do you understand? PATTERSON: [inaudible] CHAMPAGNE: Sorry? PATTERSON: Yeah. CHAMPAGNE: You understand that one? You have the right to remain silence? `Kay. Do you want to speak with a lawyer right now? Or you want to wait to be at the office? PATTERSON: I can wait till the office. […] CHAMPAGNE: Okay, like, uh, I'll j-, I'll, I'll just ask again, do you want to speak to a lawyer, right now, in the car? I'll give you private room, you can do the call, or you want to wait for the office? Because we have at least forty minutes of road to do ahead of us.

PATTERSON: I've got no reason to talk to one right now, like I ... CHAMPAGNE: 'Kay. PATTERSON: ... I got nobody to contact. CHAMPAGNE: Like I said sir, I'm not here to ask you any question, all -- the only thing I'm giving you it's your right, then I'll be silent, okay? PATTERSON: Yeah. CHAMPAGNE: And you want to wait for the office? PATTERSON: I think I can wait for the office.

[ 39 ] Cst. Champagne testified that Mr. Patterson was then transported to the Shediac detachment, where he was placed in an interview room. Cst. Champagne’s interaction with Mr. Patterson continued: CHAMPAGNE: […] 'Kay just want to make sure with you, uh, Sean you re-, you requested to speak a-, a lawyer, you said Legal Aid, uh, and you said I don't know, okay? PATTERSON: I don't-, don't know how it-, how it works, I've never been ... CHAMPAGNE: Okay. PATTERSON: ... in this situation. CHAMPAGNE: I'll explain that a little bit more to you, as we are at the office.

Legal Aid is, uh, a free lawyer that it's available 24 hours, 7 days a week, okay? We just call to, uh, an office, then they will call your lawyer. The lawyer will call back here ... PATTERSON: Okay. CHAMPAGNE: ... then I'll-, I'll explain to him what are the charge. And then you'll have a private conversation with him here, at the -- at the phone. PATTERSON: 'Kay. CHAMPAGNE: And this is all free. But if you want, we can take the Yellow Pages? PATTERSON: Alright, I can't afford a lawyer myself. CHAMPAGNE: Yeah. PATTERSON: I do- ...

CHAMPAGNE: Or the-, the -- we have a list here, a lawyer -- a lawyer phone list, and you can go through them, and then call them, okay? And-, what is your choice? PATTERSON: The -- if I need one, it'll be Legal Aid. CHAMPAGNE: It will be -- this is only my opinion, but with the charge that you are facing … PATTERSON: I don’t even …

CHAMPAGNE: … it will be your best interest to speak with one. […] CHAMPAGNE: ( ) What do you choose, you want to look at the list, or you want to call Legal Aid? PATTERSON: I-, I really don't know. Like I said, like I've just -- I've been hoping the guy would come home, I don't know ... CHAMPAGNE: Yeah, but I don't want to, I don't want to go in that discussion with you, okay? I'll let the other guys deal with it. But like I say, my point here it's to get you to speak with a lawyer, or you deny to speak with a lawyer. PATTERSON: Well it'll be Legal Aid, I guess. CHAMPAGNE: Legal Aid?

Okay, I'll call Legal Aid for you. [ 40 ] According to Cst. Champagne’s testimony and what is captured on the recording, he contacted Legal Aid on behalf of Mr. Patterson, advising that Mr. Patterson was charged with murder. A short time later, a lawyer with Legal Aid contacted the detachment, but that lawyer refused to accept the retainer as she had apparently already spoken with another individual who had been arrested with respect to Mr. Leard’s death. As a result, Cst. Champagne had to wait until he received a call from a second lawyer, Marco Godbout, who eventually accepted the retainer. [ 41 ] Cst.

Champagne testified that the call from Mr. Godbout was forwarded to the interview room, where Mr. Patterson was left alone, in private, to speak with Mr. Godbout. Cst. Champagne testified that he remained in the hallway outside the interview room. He could see into the room (through a window in the door) but he could not hear anything coming from the interview room. He recorded in his notes that the call between Mr. Patterson and Mr. Godbout began at 1:53PM and ended at 2:13PM. [ 42 ] Following his call with Mr. Godbout, Mr. Patterson expressed to Cst.

Champagne that he wanted to speak to his parents about hiring a private lawyer to assist him. This led to the following exchange between Cst. Champagne and Mr. Patterson: CHAMPAGNE: `Kay, Sean. Were you satisfied with your conversation with, uh, Mr. Godbout — don't-, don't need to tell what-, what we were talking about, but were you satisfied of it? Yes? Okay. Uh, what I'll do, I'll ask you to provide me the phone number of your father, then we'll call him and ask who would be the lawyer for the- -- that they will refer to you. PATTERSON: I'd have no idea who it would be. Um, uh, his name's Sh- Shawn WHITE.

CHAMPAGNE: Who? Your father? PATTERSON: My father's Shawn WHITE. CHAMPAGNE: Just a moment, I'll take some notes here. PATTERSON: So how come you guys have to call him? Why can't I just call him? CHAMPAGNE: If you call him, that conversation won't be private, because it's not a call with a lawyer. Okay? I will have to stay here with you. All the-, all the way then you were talking to your father. If I call your father, ask is there any lawyer that you refer to your son? I-, I won't tell him any detail why. And then if give me a name, and a phone number? Then we'll call that lawyer.

[ 43 ] Mr. Patterson then asked why he could not speak directly with his stepfather, Mr. White, so he could explain to them what was happening. It is barely audible on the recording, but Mr. Patterson states that Mr. Godbout had explained that he could call his parents in order to get the name and phone number of a lawyer. [ 44 ] Cst. Champagne told Mr. Patterson that, while he had a Charter right to speak to a lawyer, he did not have a right to speak to his parents. This, of course, is not entirely correct.

As will be discussed later in these reasons, the implementational obligations on police may afford a detainee the right to call a third party in order to obtain assistance regarding the retention of legal counsel. [ 45 ] After considering the possibility allowing Mr. Patterson to call his parents with Cst. Champagne listening-in, police ultimately refused that request. According to Cst. Champagne, it was a decision made by the MCU “command triangle” – i.e. those leading the investigation. He testified that it was a matter of protecting the integrity of the investigation. It was determined that Cst.

Champagne would call Mr. White on Mr. Patterson’s behalf. [ 46 ] Cst. Champagne reminded Mr. Patterson that he had previously indicated his preference to speak with a lawyer through Legal Aid, but then offered to make a call to his stepfather for the name of a private lawyer.

The following exchange took place: CHAMPAGNE: …you said “yes I understand”, at the first, “yes” at the second, and said “Probably get a Legal Aid, I don't know” this was at the scene, where you were arrested, and then at the office you said, uh, decid- -- you decided to s- -- you-, you made the choice to-, to speak with uh, a Legal Aid lawyer, okay? I don't mind that you speak to another lawyer, I don't mind that at all. PATTERSON: Yeah. CHAMPAGNE: Okay? It's just, you want to go by your father, I don't mind that too, but all ...

PATTERSON: I jus-, I just don't even know if, like, I ju- I know he has a lawyer, but I don't know if he has a lawyer that's willing to cover me, or however you'd put it. CHAMPAGNE: Okay, I'll ask your father that you, -- that you wanted to speak to the family lawyer, right? That your f-, f-, father is hiring, or whatever it is, and I'll ask for his name, phone number, then I'll hang up with your father, I won't tell him why you're here, or nothing. PATTERSON: Uh, no, please, please ... CHAMPAGNE: And then ... PATTERSON: ... let them know, so my mother's up ...

CHAMPAGNE: No, I-, I don't have the right to do that, okay? PATTERSON: I -- what if I give you the right to do that? CHAMPAGNE: No. I-, I-, I won't do that, but what I'll do ... PATTERSON: I need to let my ...

CHAMPAGNE: ... it's ... PATTERSON: ... mother know, 'cause she needs to hear from me every day, and I haven't talked to her yet today. CHAMPAGNE: I'll tell her that you are with us, and you're-, you're good. Okay? She won't worry. PATTERSON: No, yeah she will. (Laughs) You don't know my ... CHAMPAGNE: But ... PATTERSON: ... mother. CHAMPAGNE: ... I'll ask her, or him, for your lawyer, and phone number? PATTERSON: Okay. CHAMPAGNE: If they want to c- -- do you want your parents to cover the fee? It's -- is it what ... PATTERSON: I-, I-, I’d end up having to pay them back, so yeah it's – CHAMPAGNE: Okay, or ...

PATTERSON: But, I mean, just-, just- got to get a hold of him, see if even has a lawyer that's willing to … speak on my behalf, I guess. Is that what you'd call -- I don't know. [ 47 ] Cst. Champagne then asked Mr. Patterson what he wanted him to say to his father and reviewed with Mr. Patterson what he intended to tell him: CHAMPAGNE: ‘Kay, can I get the name, and phone number, for your father, sir? PATTERSON: Shawn WHITE. CHAMPAGNE: Is it Sean like you, or S- PATTERSON: No. CHAMPAGNE: H-? PATTERSON: S-H-A-W-N.

CHAMPAGNE: ‘Kay. Shawn? PATTERSON: WHITE. CHAMPAGNE: WHITE? Like the colour? PATTERSON: Yeah. CHAMPAGNE: Okay. Phone number, sir? PATTERSON: Uh, 902? CHAMPAGNE: Yes. PATTERSON: 664-[X-X-X-X]. CHAMPAGNE: [X-X-X-X]. Okay, and what is your official request to him? PATTERSON: I’m just wondering if he has a lawyer that’s -- can work with me, on this. CHAMPAGNE: Okay. (pause) CHAMPAGNE: 'Kay. Sean PATTERSON wants to ask his father if he has a lawyer, that wants to work -- I said with him, because you’re the third person, but with me on this, right? This is your request?

Let me do a phone call to your, uh, father, and if he suggest-, suggest to me a-, a name, and, uh, phone number, I'll make sure he is a lawyer, that person. PATTERSON: I imagine, uh, he'll, uh, want to talk to his lawyer first, to see if he will. So he's going to want to know the charge. To let his lawyer know. It's just the way he- ... CHAMPAGNE: Just ... PATTERSON: ... he's really good with his words, and stuff, it's-, it's how he works. CHAMPAGNE: It's okay, but he can, uh, I'll give h-, give him a phone number, that he can call here back, then I'll speak directly with the lawyer. PATTERSON: `Kay.

[ 48 ] Cst. Champagne then left the interview room and placed a call to Mr. White at the number provided by Mr. Patterson. Cst. Champagne’s call was recorded, but it obviously does not include what was said by Mr. White. The call was made at 2:27PM: CHAMPAGNE: Hi, can I speak to Shawn WHITE? Hi Shawn, Constable CHAMPAGNE with the RCMP, in Shediac, New Brunswick. How are you? Yes. Uh, just to let you know, I'm calling on behalf of your, uh, son. Okay. He want to know if you have a lawyer to suggest to him, and he would like to have his, uh, name and phone number that we can call him.

This is the best information I can give you, I can't go in why and what, but, uh, this is what, uh, your step-, stepson is asking. (Pause) … Yeah. But do -- do you have any -- I guess he-, he was, kind of saying that you have already a lawyer, for yourself? Or you were – you’re used to deal with a lawyer, in particular, and he wanted to speak with that one, maybe? Okay. (Pause) No, I can't sir, because it's -- he -- it has to -- yeah. Yes. … Yeah.

Okay, well, what I'll be looking at, I'll, uh, I'll check with, uh, with my supervisor if I can get him to call you, and he can explain why, and then we'll make the call. 'Kay? Okay. But, uh, if we do that, the phone call won't be private, between you and him. Because you are not a legal-, you are not a legal counsel. Right? You understand that? Okay. Okay, and he has right to a private call with a lawyer, but with the parents, it's not considered like a lawyer. Okay? Okay sir, thank you. Bye. [ 49 ] According to Cst. Champagne, Mr. White wanted more information about the charge against Mr. Patterson.

He asked to speak directly with Mr. Patterson, but that was refused. In the end, Cst. Champagne agreed to inquire about his ability to share the charge with Mr. White. He returned to the interview room and reported to Mr. Patterson: CHAMPAGNE: `Kay, Sean. I just spoke with my, uh, supervisor. Do you want me to tell your stepfather why you're here? PATTERSON: Yes, did he-, did he say anything about a lawyer? CHAMPAGNE: What-, what he said-, he said -- I sugg- uh, I'll suggest that he go through Legal Aid, and then later, when we'll s-, -- because I can't tell him the charge, okay? PATTERSON: Okay.

CHAMPAGNE: I can't, because I'm breaching the Privacy Act. Okay, I can't do that. But, he said maybe along the road, when I'll know the charge, and everything and how much it could cost, maybe, we'll get a lawyer appointed, or, uh, he'll keep going with a Legal Aid, and he will have to make a request to have a Legal Aid lawyer appointed, and blah, blah, blah. But he said I don't know the charge, I don-, -- I suggest that he goes through Legal Aid, but ... PATTERSON: Then I want him to know the charge. CHAMPAGNE: Okay. You want him to know the charge.

I'll put in my notebooks, it's recorded too, but I'll put in my notebooks, that Sean PATTERSON gave me the right to tell his stepfather, Shawn WHITE, the reason why he is here. PATTERSON: Yes. [ 50 ] After securing Mr. Patterson’s waiver to share the nature of the charge with Mr. White, he placed a second call to Mr. White at 2:24PM: CHAMPAGNE: Hi, Mr. WHITE? Constable CHAMPAGNE, again. Okay, Sean give me the permission to tell you why he was arrested. And then you can make a decision, and call me back, as soon as you can, to -- if you want him to have a lawyer, or not. He has already speak with, uh, Legal Aid.

But, uh, he wanted me to reach out to you. Okay? He's been arrested for murder. And it's the only thing I'm saying sir, he's been arrested for murder, and is reaching to you to find, or if you have any suggestion for a -- do you want a phone number to call me back? 'Kay. Uh, the only information I'm giving you, sir, it's he's been arrested for murder. Okay. My phone number is, uh, 506 - I'll give you -- 506- 533-5155. No, it's 533-5155 … 55, the last two one. No, it's, uh, it's, uh, 506-533-5155. Yeah. Constable CHAMPAGNE, like the drink. Yeah.

But, just to let you know he-, he had already spoken to, uh, a Legal Aid lawyer over here. Okay? Just call me back. Okay sir, thank you. 'Kay, bye. [ 51 ] After that call, Cst. Champagne reported to Mr. Patterson as follows: CHAMPAGNE: Your stepfather asked to give him an hour. That he will talk with your mother, and then try to find, uh, maybe a lawyer, or maybe call back and say keep going with the Legal Aid like you-, you had.

[ 52 ] At 3:03 PM, Mr. White called the detachment. CHAMPAGNE: Hello? Good, is it Mr. WHITE? Okay. Yeah. Yeah. Yeah. 'Kay. Yeah. 'Kay. As he did. 'Kay. Maybe-, maybe I'll let you tell him what you told me. Maybe I'll, uh, s-, speak with my supervisor, then, uh, I'll let you know. You don't want to tell him? 'Kay. 'Kay. Yeah. Okay. Okay. Yeah. 'Kay, that's good. 'Kay. I-, I do understand, sir. And I'll-, I'll pass your words direct-, directly to him. Kay. 'Kay. Okay. 'Kay sir, thanks. Okay sir, thanks-, thanks for your help. 'Kay sir, you too. Bye-bye. [ 53 ] Cst. Champagne testified that Mr.

White had spoken with his wife, and they were concerned that Mr. Patterson was involved in drugs. They assumed his charge related to his roommate, “Jamie”, and they decided not to give any assistance in terms of a lawyer until they learned more about the case. Once became aware of the evidence against their son, they would meet with Mr. Patterson “face to face” and decide whether to hire a lawyer for him. Cst. Champagne testified that Mr. White said Mr. Patterson needed to face the reality of what he had done and that his parents would not always be there to help. He testified that Mr.

White did not want to tell that to Mr. Patterson himself. [ 54 ] Cst. Champagne then returned to the interview room and reported to Mr. Patterson as follows: CHAMPAGNE: `Kay Sean. Just hang up with your, uh, stepfather. It won't be exactly his word, but same meaning. 'Kay? He spoke with your mother. The only thing he said to me is, I think, he said, he's been on the new wave drug, since a while. We told him to get out of this because he was going to get in a mess somewhere. He said it's not I don't want to support him, or not support him, he said I think I know what happened, or related to.

Then he ment-, he mention the name of Jamie roommate, but he did not go further down than-, than there, I-, I did not go pa- -- down-, down-, down that way. He said I want to see him face to face, later on, when he will get a little bit more disclosure, and then I'll see if you are truthful or not. Okay? And he will see in the f- in the disclosure he will see the evidence that police have also against you, or not. PATTERSON: Okay. CHAMPAGNE: Okay? He said then, from there, I'll make a decision if I'm going to hire another lawyer, or not.

Uh, but he said like you, right now, you're-, you're already through Legal Aid lawyer, and he said you'll have to figure that one out, for a bit. Alone. Okay? Meaning, you'll have to apply for Legal Aid, then you'll-, you'll get disclosure from us, and then from there, he will want to talk to you, face to face, he would-, he would-, he would want to see the disclosure, and then he will make the call if he's paying, or supporting you in -- with another lawyer, than Legal Aid. He-, he did not want to talk to you and, uh, he did-, he-, he-, he do no-, he-, he do not want us to talk to your mother too.

And because I think you have an uncle that is, uh, sick right now, or her brother I don't know. PATTERSON: Yeah. CHAMPAGNE: And she has enough on her plate right now, and with that news that they just learned, I think she kind of, uh, fall off her chair. PATTESON: Yeah, we just lost our grandfather too, so. [ 55 ] Cst. Champagne then once again raised the issue of speaking with another lawyer, in the event Mr. Patterson was not satisfied with the discussion he had had with Mr. Godbout: CHAMPAGNE: […] Another thing I'm asking, are you still satisfied with the phone call you had with Mr. Marco Godbout?

PATTERSON: Yeah, he told me everything I could know, I guess. CHAMPAGNE: Okay. And-, and I don't want to know what he told you, this is all private, okay? PATTERSON: Yeah.

CHAMPAGNE: But, us now we have to move on on the investigation. I'll give you another opportunity, do you want to speak to another lawyer? Or you want to keep on going with what you have already? PATTERSON: Uh, he didn't really say he was my lawyer, he just was read- ... CHAMPAGNE: It-, it-, it's -- this is Legal Aid, when you call at the Legal Aid number, there is a lawyer paid in the province, 24 hours, 7 days a week, to answer the first juridic question, or advice that somebody could have. PATTERSON: Yeah. CHAMPAGNE: Prior to talk to the police, and stuff like that. PATTERSON: `Kay ( ). CHAMPAGNE: Okay?

And, uh, then, later on, you'll have the chance to apply for Legal Aid or you might have the chance to have the support or might -- you might have the funding, then you can hire a lawyer, and then go from there. But it, the only thing I want to make sure with you, because you wanted to speak you-, you-, you are satisfied, but at the same time you would like to have the -- I think maybe the opinion of a another lawyer, I just want to clarify -- that now, that if you want to speak to another lawyer. PATTERSON: I-, I'll stick with Legal Aid, for now ... CHAMPAGNE: Y-, you'll stick with Legal Aid, okay.

PATTERSON: And then if the option provide itself, down the road, that I can afford a lawyer, I will. CHAMPAGNE: 'Kay. [ 56 ] At that stage, Mr. Patterson was turned over to a member of the MCU for questioning. Cst. Champagne’s involvement with Mr. Patterson ended at 3:21PM. [ 57 ] Cst. Champagne confirmed that during the entire time in Shediac, Mr. Patterson remained in the interview room. No other member of the police had contact with Mr. Patterson once they arrived in Shediac. [ 58 ] On cross-examination, Cst. Champagne acknowledged that Mr.

Patterson initially seemed confused about why he was being arrested for murder, but he denied that the accused seemed generally confused by what was happening. He was confident that Mr. Patterson understood what he was being told and he gave answers that were recorded. [ 59 ] Cst. Champagne acknowledged that Mr. Patterson had signs of injuries and he knew from the morning briefing that Mr. Patterson had been released from hospital the previous day. He agreed that Mr. Patterson appeared to be in some pain, but he felt Mr.

Patterson understood everything in terms of his rights. [ 60 ] With respect to discussions about whether to allow Mr. Patterson to speak to his parents, Cst. Champagne testified that he initially raised the issue with Cst. Andy Paynter, who would later conduct the questioning. Cst. Paynter was Cst. Champagne’s access to the command triangle. He testified that the only member of the command triangle he recalls speaking to that day was Cst. Robert

Chiasson. [ 61 ] It was suggested to Cst. Champagne that Mr. Patterson was interrupting him during the reading of his rights. It was suggested that Cst. Champagne was ignoring what Mr. Patterson was trying to say. Cst. Champagne agreed that Mr. Patterson asked for a cigarette a few times and asked about why he was being arrested for murder. He testified that his role was limited to reading Mr. Patterson his rights and ensuring that those rights were respected. He wanted to ensure that Mr.

Patterson spoke to counsel before going for a cigarette or getting into the facts surrounding his arrest in order to avoid delays. [ 62 ] Cst. Champagne denied that he was “steering” Mr. Patterson towards Legal Aid. He felt that he gave the accused a clear and fair choice of what to do about his right to speak with counsel. [ 63 ] He confirmed that it was the command triangle which determined that any calls to Mr. White would have to be made by Cst. Champagne. He acknowledged that he had control over what was communicated to and from both Mr. White and Mr.

Patterson. [ 64 ] He acknowledged that he initially refused to divulge the charge to Mr. White, stating that he was not allowed to without a waiver from Mr. Patterson. He acknowledged that Mr. Patterson wanted Mr. White to know the charge. [ 65 ] Cst. Champagne was also questioned about his call with Marco Godbout, the second lawyer to call from Legal Aid. It was suggested to Cst. Champagne that there was some dispute or argument between him and Mr. Godbout. Cst. Champagne agreed that there was an issue with Mr. Godbout as to whether the accused had the right to speak to yet another lawyer, i.e. Mr.

Godbout and someone else. Cst. Champagne testified that he simply wanted Mr. Godbout to confirm whether he was or was not a lawyer. Mr Godbout confirmed that he was, and so Cst. Champagne said he would transfer the call to the accused. [ 66 ] It was suggested to Cst. Champagne that he never advised Mr. White that Mr. Patterson’s desire to get the name of a private lawyer was expressed after he had spoken to Legal Aid. The recording would suggest otherwise. It was also suggested to Cst. Champagne that he did not tell Mr. White that Sean Patterson was not satisfied with call with the Legal Aid lawyer, and Cst.

Champagne answered that Mr. Patterson never expressed dissatisfaction with the call. He simply expressed an ongoing desire to obtain the name of a lawyer from his stepfather, Mr. White. Cross-Examination of Shawn White [ 67 ] As noted, Mr. White was made available for cross-examination by the Crown. [ 68 ] He acknowledged that he had three telephone discussions with Cst. Champagne on June 5, 2021 – two calls he received from Cst. Champagne, and one call which he initiated to the Shediac Detachment. [ 69 ] With respect to the first call from Cst.

Champagne, he agreed that he told the officer that he was concerned about the cost of a lawyer and he wanted to speak to Mr. Patterson’s mother before making any commitment. He agreed that he was specifically told that Mr. Patterson was looking to have Mr. White retain his usual lawyer for him. Mr. White confirmed that he has a friend who is a lawyer and he agreed that he did not provide the name of that lawyer to Cst. Champagne. [ 70 ] Initially, he did not know the nature of the charge, but he agreed that Cst. Champagne called a second time and confirmed that it was murder. He also confirmed that Cst.

Champagne confirmed on that second call that Mr. Patterson was looking for the name of that lawyer and that he had already spoken with the Legal Aid lawyer. [ 71 ] With respect to the statement in his affidavit that he had understood that Mr. Patterson was satisfied with his conversation with the lawyer appointed by Legal Aid, he agreed on cross-examination that he made that assumption and that it was not something told to him by Cst. Champagne.

[72] With respect to the third call, which Mr. White initiated, he admitted that he told Cst. Champagne that Mr. Patterson shouldspeak with Legal Aid and that he did not give the name and number of his friend, the lawyer. Cross-examination of Sean Patrick Patterson [73] The accused was likewise made available for cross-examination on his affidavit. [74] Mr. Patterson agreed that he was told at the time of his arrest that he had the right to call a lawyer of his choosing or that hecould speak to a lawyer through Legal Aid, at no cost. He was played a clip from the recording, and he also agreed that Cst.

Champagneoffered him the Yellow Pages to find a lawyer and a list of lawyers. [75] He agreed that several options were given to him, and he agreed that he told Cst. Champagne that he would stick with Legal Aid. [76] Mr. Patterson also agreed that he told Cst. Champagne that he wanted to call his parents for two reasons – 1) to tell his motherwhere he was and 2) to ask his stepfather if he had a lawyer he could recommend. [77] That was the evidence on the voir dire. LAW AND ANALYSIS [78] With respect to the obligations on police pursuant to s. 10(

b) of the Charter, this Court can do no better than cite the late JusticeWalsh of this Court in HMQ v. C. Gallagher, 2020 NBQB 181 , where he wrote: [58] This Charter right reads: Everyone has the right on arrest or detention … (

b) to retain and instruct counsel without delay and to be informed of that right. [59] The right given by

Section 10 (

b) imposes upon the police two positive obligations on arresting or detaining a person. They arereferred to as the “informational” and “implementational” components. Absent narrow exceptions, the police have a duty without delayto inform the suspect of the right to consult counsel and, if requested, the corresponding duty to facilitate access to counsel. There is athird obligation cast upon the police. If the suspect asks to speak to counsel, the police are required to hold off attempting to elicitevidence from that person until that has happened. (R v.

Manninen (SCC), [1987] 1 S.C.R. 1233). [79] That is consistent with the Supreme Court’s pronouncement in R. v. Bartle, (SCC), where Chief Justice Lamerwrote: This Court has said on numerous previous occasions that s. 10(

b) of the Charter imposes the following duties on state authorities whoarrest or detain a person: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aidand duty counsel;

(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right(except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger). [80] In this case, Mr. Patterson does not seem to take issue with the first component – the informational component. The evidencesatisfies the Court that Cst. Champagne notified Mr.

Patterson on several occasions that: 1) he had the right to retain and instruct alawyer, 2) he could call any lawyer he wanted, and 3) if he could not afford a lawyer, he could speak to a lawyer through Legal Aid at nocost to him. Mr. Patterson confirmed that during his cross-examination, that he understood those rights, notwithstanding what he statedin his affidavit. [81] The Court observed nothing from the audio recording to suggest that Mr. Patterson was suffering from any injury which mighthave affected his ability to understand what was told to him.

He knew he had the right to speak to a private lawyer of his choosing or to alawyer through Legal Aid. [82] There was no breach of the informational component in this case. [83] In his Notice of Application, Mr. Patterson alleges that police failed to allow him to speak to a lawyer immediately upon hisarrest and required him to wait until they reached the RCMP detachment. That is incorrect. The recording confirms that Cst.Champagne offered Mr. Patterson the opportunity to call a lawyer from the location of his arrest near Sackville, and Mr.

Pattersonindicated his preference to wait until they arrived at the “office.” [84] Mr. Patterson indicated his desire to exercise his right to speak with counsel. He initially indicated that his choice was to speakwith a lawyer provided by Legal Aid, but he later indicated that he wanted to consult his parents to obtain the name of their lawyer. Thequestion is whether Cst. Champagne complied with his implementational duties in that respect. Specifically, Mr. Patterson alleges thatCst.

Champagne hindered his efforts to obtain the name of a lawyer from his parents by refusing to allow him to call them himself. [85] Counsel for Mr. Patterson cites a number of cases which outline the obligations on police and, in counsel’s view, the ways inwhich Cst. Champagne failed to comply with those obligations. The best

summary of the state of the law would seem to be R. v. Ector,2018 SKCA 46 , from the Court of Appeal of Saskatchewan cited by Mr. Patterson: [44] The police duty to facilitate access to a lawyer arises immediately upon the detainee’s request to speak with counsel. At thisstage of their interaction with the police, detainees are under the complete control of the police and cannot exercise their right to counselunless the police provide the detainee with a reasonable opportunity to do so.

Thus, the right to retain and instruct counsel without delayonly makes meaningful sense if the police exercise their correlative duty to facilitate contact with counsel (R v Manninen, (SCC), [1987] 1 SCR 1233), a point that was reinforced by the Supreme Court in R v Taylor, 2014 SCC 50, [2014] 2 SCR 495[Taylor]. The Court in Taylor began its analysis by reaffirming long-standing legal principles concerning this aspect of the s. 10(

b) right: [24] The duty to inform a detained person of his or her right to counsel arises “immediately” upon arrest or detention (Suberu, atparas. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee’s request to speak to counsel.The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonablyavailable opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000),2000 ABCA 301 , 271 A.R. 368, at para. 12 (C.A.)).

Whether a delay in facilitating access to counsel is reasonable is a factualinquiry. [25] This means that to give effect to the right to counsel, the police must inform detainees of their s. 10(

b) rights and facilitate accessto those rights where requested, both without delay. This includes “allowing [the detainee] upon his request to use the telephone for thatpurpose if one is available” (Manninen, at p. 1242). And all this because the detainee is in the control of the police and cannot exercisehis right to counsel unless the police give him a reasonable opportunity to do so (see Brownridge v. The Queen, (SCC),[1972] S.C.R. 926, at pp. 952-53). [45] Taylor reminds us that “proactive steps are required to turn the right to counsel into access to counsel” (at para 33, emphasis

in original). Importantly, the Supreme Court went on to observe that, as a result of the officers’ failure to even turn their minds to howthe accused’s right to access counsel could have been facilitated in the unique circumstances of that case, the trial judge was unable toeven assess the reasonableness of the police action (para 35). […] [48] To be clear, the s. 10(

b) right embraces the right to speak with legal counsel and not to a non-lawyer. That said, the law alsorecognizes that the right to retain and instruct counsel includes the right to contact third parties for the purpose of obtaining counsel.Thus, where the detainee expresses a desire to speak with a third party for purposes of obtaining the name of legal counsel, and there areno investigative concerns arising from that request, denial of the right to access the third party may constitute a s. 10(

b) breach(Tremblay; R v LaPlante (1987), (SK CA), 40 CCC (3d) 63 (Sask CA); R v Menard, 2010 BCSC 1416 at para 46, 11BCLR (5th) 162; R v Blake, 2015 ONCA 684 at para 14; R v Ferris, 2014 SKPC 6 at paras 27–31 [Ferris]). [49] The right to speak with a third party to obtain the name of counsel is not absolute and it, too, is fact dependent. This point wasexplained in R v Kumarasamy, [2002] OJ No 303 (QL) (Sup Ct): [26] This is not to say that a detainee is always entitled to make one or a series of calls to friends or relatives. The determination mustbe made on a case by case basis.

No doubt there will be rare cases where a call to a friend or relative in private could jeopardize anongoing investigation. For example, if the detainee has accomplices who had not been arrested, or if persons or property could be placedin jeopardy by permitting a call to someone other than a lawyer, a delay might be justified. That is not the case here. [50] An additional layer of complexity to the s. 10(

b) analysis arises where the police act as an intermediary in the process byassuming control over the telephone to contact legal counsel, or by contacting a third party to obtain contact information about a lawyerof choice. […] [52] To be clear, the police are not obliged to take control over the telephone as part of their duty to facilitate access to counsel.That is their choice.

Indeed, the obligation to “facilitate” a reasonable opportunity to contact counsel is often satisfied by placing thedetainee in a room with a telephone, telephone book and information about Legal Aid (see: R v Wolbeck, 2010 ABCA 65, 474 AR 331). [53] Several lower court decisions from this jurisdiction have held that when the police interject themselves into the process ofcontacting counsel (including dialing the telephone number), they must do as much as the accused would have done to contact theaccused’s lawyer of choice […]. [54] An even further refinement arises where the police assume control over the contact process but pass along incorrectinformation to the detainee.

In R v Neff, [2012] SJ No 846 (QL) (Prov Ct), aff’d on appeal, 2013 SKQB 237, for instance, the officermisunderstood the name of the lawyer the accused had mentioned and had used the incorrect name in a 4-1-1 search. The trial judgefound responsibility for the error rested with the officer as he had taken control over the process. The trial judge had little difficultyfinding a s. 10(

b) breach because no opportunity had been provided. [86] In this case, the rationale for refusing Mr. Patterson’s request to speak directly with his stepfather was apparently to protect theintegrity of the investigation.

That rationale was not meaningfully challenged by the accused. [87] So, the law would seem to provide that, on a case-by-case basis, the police may assume control of telephone calls made to thirdparties for the purpose of obtaining the name of a lawyer; but in doing so, they bear the obligation of accurately passing along theinformation, both to the third party and to the accused. [88] Counsel for Mr. Patterson argued that Cst. Champagne did not provide Mr. Patterson with any opportunity to explain what hewanted, and that Cst. Champagne decided on his own what to tell Mr. White. That is simply not correct.

The evidence confirms thatCst. Champagne asked Mr Patterson what he wanted from Mr. White and then reviewed with Mr. Patterson what he would tell Mr.

White in order to accurately convey the message, which was that Mr. Patterson has charged with murder and he wanted his stepfather’s recommendation for a lawyer. There is no support for the accused’s allegation that Cst. Champagne decided on his own what to tell Mr. White. [ 89 ] Mr. Patterson also argues that when Cst. Champagne contacted Mr. White, he did not make it clear that Mr. Patterson still wanted the name of a lawyer after he had already spoken to a lawyer provided by Legal Aid (see paragraph 27 of the Applicant’s Brief on Law). [ 90 ] In his affidavit, Mr.

White seems to support that notion. [ 91 ] But the difficulty is that the recording is totally at odds with that contention. The recording makes it clear that Cst. Champagne informed Mr. White that, even after speaking with Legal Aid, Mr. Patterson still wanted the name of his lawyer. Mr. White admitted on cross-examination that is what was told to him by Cst. Champagne. [ 92 ] In my view, the obligation on Cst. Champagne is not to report, verbatim, what was said. He need not provide a transcription of the conversation.

Rather, the obligation requires police, if they elect to assume control of the call to a third party for the purpose of obtaining the name of a lawyer, to accurately convey to the accused and to the third party the gist of the communications so that the accused’s effort to retain counsel of his or her choice is facilitated and not impeded. [ 93 ] Here, Mr. White knew that Mr. Patterson wanted the name of a lawyer even after speaking with Legal Aid. Mr. White knew the charge – murder. He knew the stakes involved and he decided, after consulting with Mr.

Patterson’s mother, not to provide the name of his lawyer to Mr. Patterson. That is uncontroverted. [ 94 ] So, what exactly is the alleged miscommunication? What information was not communicated or was miscommunicated? [ 95 ] Counsel for the accused was not able to identify any miscommunication. There is no evidence that Cst. Champagne misrepresented the situation to Mr. White, nor that he misrepresented Mr. White’s response when he spoke to Mr. Patterson. [ 96 ] Mr.

White, knowing that his stepson was charged with murder, knowing that his stepson had spoken to Legal Aid and knowing that his stepson nonetheless wanted the name of a lawyer, chose not to provide a name or a phone number. Those are the facts, and that is what was communicated to Mr. Patterson. [ 97 ] Mr. Patterson also argues that Cst. Champagne directed or “steered” him towards using Legal Aid rather than retaining a lawyer of his choice. That argument, in the face of the totality of the evidence in this case, is without merit. In fact, Cst. Champagne offered Mr.

Patterson the choice of calling private counsel on numerous occasions. He offered the Yellow Pages more than once. He offered a list of lawyers, again more than once. He called Mr. White to obtain the name of the family’s lawyer. And, when Mr. White refused to provide the name of a lawyer, Cst. Champagne again offered Mr. Patterson the opportunity to consult the Yellow Pages and that list of lawyers. What more could Cst. Champagne have done? [ 98 ] There is no merit to the argument that Cst. Champagne directed or “steered” Mr.

Patterson toward Legal Aid and away from retaining a private lawyer of his own choice. [ 99 ] Cst. Champagne offered Mr. Patterson numerous choices. Mr. Patterson chose, after being assisted to a reasonable and acceptable degree, not to call anyone else. He spoke to Mr. Godbout through Legal Aid, and he decided that was sufficient. [ 100 ] Mr. Patterson also complains that he was required to give a waiver for Cst. Champagne to disclose the nature of the charge to Mr. White, while at the same time complaining that Cst. Champagne improperly disclosed that Mr.

Patterson had already spoken to a lawyer through Legal Aid. Counsel for Mr. Patterson spent some time arguing that these were somehow “improper” conduct by police, and that his client should not have had to “jump through hoops” in order to implement his right to counsel. But the arguments are, in my view, both contradictory in nature and disconnected from the right to counsel. They are contradictory because Mr. Patterson seems to be saying that it was wrong to ask him to authorize the disclosure of some information, but that it was a breach of his privacy (presumably)

to disclose other information. And it is doubly confusing, since Mr. Patterson was arguing that Cst. Champagne breached s. 10(

b) by failing to disclose that Mr. Patterson wanted the name of a lawyer even after he had spoken to Legal Aid . [ 101 ] Mr. Patterson cannot have it both ways. His position is nonsensical. [ 102 ] Finally, Mr. Patterson argues that Cst. Champagne was rude and abrupt with him. The Court heard no evidence of rudeness or abruptness that would in any way affect Mr. Patterson’s’ Charter rights. Cst. Champagne was business-like and, in my view, completely respectful. Mr. Patterson argues that he felt rushed to make a decision. But it is noteworthy that Mr.

Patterson arrived at the Shediac Detachment at 12:32 PM, and Cst. Champagne turned him over to the MCU at 3:21PM, nearly three hours later. He was not rushed and it did not affect his right to retain and instruct counsel of his choice. DISPOSITION [ 103 ] The Court is satisfied that Cst. Champagne complied with his informational and implementational obligations under s 10(

b) of the Charter . [ 104 ] There was no breach of Mr. Patterson’s s. 10(

b) right to retain and instruct counsel. [ 105 ] The Application is therefore dismissed. DATED at Moncton, New Brunswick this 28 th day of March, 2023. _____________________________________ Robert M. Dysart, Judge of the Court of King’s Bench of New Brunswick