R. v. Finbow, 2017 NSSC 291

SUPREME COURT OF Nova Scotia Citation: R. v. Finbow , 2017 NSSC 291 Date: 2017-09-15 Docket: CRH , No. 456321 Registry: Halifax Between: Her Majesty the Queen v. Darren Smalley, Simon Radford, and Joshua Finbow Decision – Voir Dire #1 Restriction on Publication: s. 486.4 Editorial Notice: Identifying information has been removed from this electronic version of the judgment. Judge: The Honourable Justice Patrick J.

Duncan Heard: February 27, 28, March 1, 2, April 19, 25, May 1, 17, June 2, 13, and September 15, 2017, in Halifax, Nova Scotia Counsel: Eric Taylor and Scott Morrison, for Her Majesty the Queen Ian Hutchison, for the Defence (Darren Smalley) Mark Knox Q.C. and Michael Potter, for Defence (Joshua Finbow) David Bright Q.C. and Geoff Newton for Defence (Simon Radford) Order restricting publication — sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or

(

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). By the Court: Introduction [ 1 ] Joshua Finbow is a member of the British Navy. He was a member of that service’s hockey team when it participated in a naval hockey tournament in Halifax, in April 2015. L. A. complained to the Halifax Regional Police that she was sexually assaulted by Mr. Finbow, among others. The investigation was re-assigned to the Canadian Forces National Investigative Service (CFNIS). [ 2 ] On April 16, 2015, Mr.

Finbow was arrested and transported to the offices of the Canadian Forces National Investigative Service located on Hollis Street in Halifax. He was interviewed by, and provided a statement to, CFNIS investigator Master Corporal James Biso. The Crown seeks to admit the statement into evidence at trial. The accused objects and submits that it should be excluded from evidence. The Charges [ 3 ] Mr.

Finbow is charged jointly with Darren Smalley and Simon Radford that they did on or about the 10 th day of April 2015, at or near Shearwater, in the County of Halifax, in the Province of Nova Scotia commit a sexual assault causing bodily harm upon L. A., contrary to section 272(2) (

b) of the Criminal Code ; and further that they did commit a sexual assault upon L. A. with one or more persons, contrary to section 272(2)(

b) of the Code . Issues Issue 1: Were the accused’s rights guaranteed by

section 10(

b) of the Canadian Charter of Rights and Freedoms violated? In particular, were any or all of the following rights violated: (

a) The right to consult counsel without delay (

b) The right to consult counsel in private (

c) The right to counsel of choice (

d) The right to counsel and failure to comply with

section 36 of the Vienna Convention on Consular Relations Issue 2: Was the accused’s right to silence guaranteed by

section 7 of the Charter of Rights violated? Issue 3: If a violation of the accused’s Charter Rights is found then what is the appropriate remedy under

section 24 of the Charter ? Issue 4: Was the accused’s statement to police voluntary? Issue 1(a): The right to consult counsel “without delay” [ 4 ] The accused submits that the police failed in their obligation under

section 10(

b) of the Charter to provide him with his right to counsel “without delay”.

Facts [ 5 ] On the morning of April 16, 2015, a team of police officers was tasked to go to CFB Shearwater, Warrior Block residence, in Dartmouth, to arrest four British nationals in relation to an allegation of sexual assault. The operational plan called for the officers to arrive on scene and wait for a “Feeney Warrant” to be issued that would permit them to enter the premises occupied by the suspects. Those suspects included the three co-accused in this matter, Mssrs. Finbow, Smalley and Radford. [ 6 ] MCpl.

Derek Chase is a member of the Canadian Forces National Investigative Service (NIS) and he was assigned with then Sergeant, now Warrant Officer, Darren Carter to arrest Joshua Finbow. These officers left the NIS office on Hollis Street in Halifax at 9:05 a.m. and arrived at Warrior Block at approximately 09:20 a.m. [ 7 ] Mr. Finbow, and the other suspects, exited the residence building before the Feeney Warrant arrived. MCpl. Chase testified that at 9:37 a.m. he approached and arrested Mr. Finbow for “sexual assault”. He handcuffed the accused and placed him in the back seat of an unmarked police vehicle.

Once in the car, WO Carter read Mr. Finbow “his rights to counsel and caution”, from a “fold up card”. Mr. Finbow indicated that he did want to consult counsel, although MCpl. Chase could not recall Mr. Finbow’s exact response. He believed the accused “understood what was being read to him”. [ 8 ] WO Carter testified to providing the right to counsel: Q. Okay. So what happens once he's placed in the vehicle? A. Once he's placed in the vehicle, I sat in the front passenger seat and I turned to the left and I read from my caution-rights to counsel card. Q. Okay. A. To Mr. Finbow. Q. Okay.

And do you have that same card with you here in Court today? A. Yes, I do. Q. Okay. I'm going to ask you to produce it and to read to us slowly and exactly what you read to Mr. Finbow, and where possible if you could describe to us his responses to anything that you may have read to him. Just take your time, okay? A. Okay. So I read the right to counsel Criminal Code offences only. The wording here says, "I am arresting you," but I replaced it with: "You're being arrested ..." ... because Corporal Chase was the arresting officer ... "... for sexual assault.

It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a Legal Aid lawyer. If you are charged with an offence, you may also apply to the provincial Legal Aid plan for assistance." And I provided the number 1-902-420-6583 or 1-800-777-6583 as a toll-free number ... "... that will put you in touch with provincial Legal Aid duty counsel for free legal advice right now. Do you understand?" Q. Okay. A. And he indicated he understood. Q. Okay. So are you saying that Mr.

Finbow indicated that he understood? A. Yes. And, "Do you wish to call a lawyer now?" And when I explained that to him, "Do you wish to call a lawyer now," I advised him that our CFNIS office is located at ... Q. Okay. So you read from the card. A. Yes. Q. Did he respond to you after you read from the card? A. He said yes. He said he'd like to talk to a lawyer.

Q. Okay. Was there any more reading from the card that happened at that time? A. I basically explained the now part first, and then I also read him the police caution. Q. Okay. So sorry, just to make ... A. Sorry. Q. Is there anything else on the card that you read to him? A. Yes. Q. Okay. Let's keep going with the card. A. I also read him a caution that basically read: "Before you say anything relating to any charge which has been or may be preferred against you, you're advised that you're not obliged to say anything.

But anything you say may be taken down in writing or recorded by other means or both, and may be used as evidence. Do you fully understand this warning?" And he indicated that he understood ... (inaudible). Q. Okay. Any more reading from the card or responses? A. No. Q. Was there anything that you said at that time additional to what is written on the card? A. Yes. As I was saying with the ... when I mentioned "Do you want to call a lawyer now? -" I explained the process that was going to have to take forward, that basically we're going to be ... our office is located at 1310 Hollis Street in Halifax.

We're going to be driving to that building. Once we get to that building, we're going to enter the Duty Counsel Room so you can be afforded privacy and a full list of lawyers if you wish to talk to counsel. Q. Okay. And did Mr. Finbow say anything to you after you said those words? A. No. Q. And again, sorry, what was his response when you were asking him if he wished to call a lawyer? A. He indicated he wanted to talk to a lawyer. Q. Okay. Now did Mr. Finbow appear to understand what you had read to him and said to him? A. Yes. Q.

Did he do anything to raise some concerns to you that he didn't understand what had been said to him? A. No. Q. Okay. Did you give any consideration to allowing him access to a lawyer in the van? A. No, I didn't. [ 9 ] In cross-examination WO Carter expanded upon this testimony: Q. I just wanted to make sure that I heard that correctly. "Right now," that's part of the card, and that's what you would have told Mr. Finbow. A. That's correct. That's what ... (inaudible) Q. And then you would have explained to him that that's not really exactly what it means. A.

I explained to him that after the arrest that we're going to be driving back to the CFNIS building or police station, I guess if you will. Q. Uh-huh. A. And there, he would be provided the full list of duty numbers and the privacy and a phone to call a lawyer. Q. Uh-huh. Did you tell him that it would be about an hour and a half before he spoke to duty counsel, or to a lawyer or ... A. No, I didn't. Q. No.

A. I had no ... I didn't know how long it was going to take at that time. [ 10 ] Mr. Finbow was asked to exit the vehicle, which he did, and was then searched by MCpl. Chase. [ 11 ] The officers left Warrior Block, with Mr. Finbow in custody, at approximately 9:43 a.m. according to MCpl. Chase, (WO Carter estimated the time to be 9:40 a.m.). There was little conversation with Mr. Finbow en route to the office.

They drove directly to the underground parking garage at the NIS Regional office at 1310 Hollis Street in Halifax, arriving at approximately 10:05 a.m. [ 12 ] The accused was taken by elevator up to the NIS offices where Mr. Finbow was placed in Interview Room B at 10:13 a.m. He sat in that room while waiting to contact legal counsel. [ 13 ] MCpl. Chase entered Room B at 10:48 a.m., followed shortly after by MCpl. Gouthro. MCpl. Chase provided Mr. Finbow with the number of the Nova Scotia Legal Aid duty counsel, and a list of lawyers provided by the British High Commission.

Here is the exchange: MCpl Derek Chase: [10:48:15] All right, Josh, I’m just going to let you know, we’ve got a number here for a lawyer in Nova Scotia, Legal Aid. They’re just duty counsel. They can help you out. You can choose to talk to those people or this is a list of lawyers prepared by the British High Commission. Basically, we’ve been in contact with them. These are the lawyers that they’ve -- MCpl Darryl Gouthro: [10:48:38] In Nova Scotia is in the back.

They’re not guaranteeing -- that these -- that they’re going to be covering these people but these are people that have already made arrangements apparently to -- MCpl Derek Chase: So it’s up to you. You can contact one of these ones or the local duty counsel so -- Joshua Finbow: [10:48:54] I’ll just go with duty counsel. MCpl Derek Chase: Yeah? Joshua Finbow: Yeah. MCpl Derek Chase: Okay. Good enough. MCpl Darryl Gouthro: So the DLT talked to you about this already -- did he? Joshua Finbow: [10:49:04] Ah, not really.

He said that we’d get a list of lawyers that have been – ‘cause they would have been recommended by our [inaudible word]. MCpl Darryl Gouthro: Yeah. Joshua Finbow: Yeah, he said whatever really. MCpl Darryl Gouthro: Whatever one you want, okay. Joshua Finbow: [10:49:18] I’m happy with a duty lawyer. MCpl Darryl Gouthro: Okay. [ 14 ] At 10:53 a.m., MCpl. Chase escorted Mr. Finbow to the Duty Counsel Room, across the hallway from Room B. The officer initiated a phone call to Duty Counsel, Roger Burrill, and then left Mr. Finbow to consult privately with the lawyer. Mr.

Burrill requested to speak to the investigating officer and Mr. Finbow conveyed this to MCpl. Chase. [ 15 ] At approximately 11:00 a.m. MCpl. Chase spoke privately with Mr. Burrill at Mr. Burrill’s request and then arranged for WO Seymour to speak by phone with Mr. Burrill. While this was taking place WO Carter “watched” Mr. Finbow, returning him to Room B for a few minutes at around 11:03 a.m. At 11:07, MCpl. Chase returned to Room B and moved Mr. Finbow back into the Duty Counsel Room to speak with Mr. Burrill. At 11:26 a.m. Mr.

Finbow exited the Duty Counsel Room, having completed his call with counsel. [ 16 ] Mr. Finbow submits that the approximately 1 hour and 20-minute period between his arrest at 09:37 and his first conversation with counsel, at approximately 11:00 a.m., was excessive and infringed his right to counsel without delay. Legal Principles [ 17 ]

Section 10 of the Canadian Charter of Rights and Freedoms states that:

10. Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefore; (

b) to retain and instruct counsel without delay and to be informed of that right; and (

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. [ 18 ] The Court-prepared

summary of its decision in R. v. Taylor 2014 SCC 50 , concisely sets out the fundamental legal principles underpinning the

section 10(

b) Charter right:

Section 10(

b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. The purpose of the s. 10(

b) Charter right is to allow an arrested or detained individual not only to be informed of his other rights and obligations under the law but also to obtain advice as to how to exercise those rights. Access to legal advice ensures that an individual who is under control of the state and in a situation of legal jeopardy is able to make a free and informed choice whether to cooperate with the police.

The duty to inform a detained person of his or her right to counsel arises immediately upon arrest or detention 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 reasonably available opportunity. Until the requested access to counsel is provided, it is uncontroversial that there is an obligation on the police to refrain from taking further investigative steps to elicit evidence.

While the police are under no legal duty to provide their own cell phone to an arrested or detained individual, they nonetheless have a duty both to provide phone access at the first reasonable opportunity to avoid self-incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated. While s. 10(

b) of the Charter does not create a right to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right to counsel. The burden is on the Crown to show that a given delay was reasonable in the circumstances. …. Constitutional rights cannot be displaced by assumptions of impracticality.

Barriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel. (emphasis added) [ 19 ] Applied to the facts of that case the Court held: An individual who enters a hospital to receive medical treatment is not in a Charter - free zone. Where the individual has requested access to counsel and is in custody at the hospital, the police have an obligation under s. 10(

b) to take steps to ascertain whether private access to a phone is in fact available. In this case, one of the police officers admitted that at the hospital, he made a mistake and that he would have and could have given the accused the requested access if he had remembered to do so. Once at the hospital, it was 20 to 30 minutes before the hospital took any blood from the accused, more than enough time for the police to make inquiries as to whether a phone was available or a phone call medically feasible. At no point did the police even turn their minds to the obligation to provide access.

This is a case not so much about delay in facilitating access, but about its complete denial. This ongoing failure cannot be characterized as reasonable. [ 20 ] The burden that rests with the Crown was summarized this way: 28 But the police nonetheless have both a duty to provide phone access as soon as practicable to reduce the possibility of accidental self-incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated. While s. 10(

b) does not create a "right" to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right to counsel at the first reasonable opportunity. (emphasis added) [ 21 ] The application of this test can be contentious and depends upon the identification of, and weight to attach to, that evidence which is relevant to determining the reasonableness of the delay. A review of the caselaw shows that it is a fact driven analysis in which the actual time that passed is only one factor to be considered. [ 22 ] In R. v.

Suberu 2009 SCC 33 at para. 42 , the Court addressed the challenge: 42 To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(

b) creates an ill- defined and unworkable test of the application of the s. 10(

b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b).

Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter , the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. (emphasis added) Sub-Issues 1. Did the police inform the accused of his right to counsel without delay?

2. Did the police implement the accused’s right to counsel without delay? 3. If not, was the delay reasonable in the circumstances? 4. If a violation of the

section 10(

b) right is proven, then what is the appropriate remedy? Analysis Sub-Issue 1: Did the police inform the accused of his right to counsel without delay? [ 23 ] Based on the evidence, I conclude that the obligation of the police to inform the accused of his right to retain and instruct counsel without delay was satisfied. Sub-Issue 2: Did the police implement the accused’s right to counsel without delay? [ 24 ] I am not satisfied that the accused’s right to counsel was implemented without delay. A 1 hour and 20-minute delay is not “immediate”.

Sub-Issue 3: If not, was the delay reasonable in the circumstances? [ 25 ] The timeline of the delay in contacting counsel is not controversial: 09:37- 09:43 a.m.: Mr. Finbow was arrested, informed of his right to counsel and searched, all in Dartmouth; 09:43-10:05 a.m.: Mr. Finbow was transported to the NIS office parking garage; 10:05-10:13 a.m.: Mr. Finbow was escorted to the NIS Office and apparently had to wait while Craig Stoner, PO2 Clowe and MCpl. Darren Gouthro cleared from Interview Room B, after which Mr. Finbow entered Room B. The length of that wait is not in evidence; 10:13-11:00 a.m.: Mr.

Finbow waited in Interview Room B for the Duty Counsel Room to become available. [ 26 ] The investigators were alert to the obligation to provide the right to counsel. It was a matter that was discussed in the process of developing an operational plan for the arrest and detention of the suspects. While formulating the plan, WO Elton Seymour determined that the NIS offices could not accommodate all four suspects intended to be arrested, and so it was decided that two (Mssrs. Stoner and Finbow) would be brought to NIS offices and the other two would be taken to the Military Police Unit at Windsor Park, in Halifax.

WO Seymour explained his reasoning: Q. Okay. What was the rationale for splitting the locations? A. The reason for splitting that is I initially ... I had made contact with the RCMP and with Halifax Regional Police to try and facilitate having four arrested in one location. Q. Uh-huh. A. But that ... it could not be accommodated.

So the next best thing was to divide the four members into two separate locations so that they could have access to Legal Aid as soon as possible or legal advice as soon as possible. [ 27 ] WO Seymour testified that the RCMP and the Halifax Regional Police could not assist due to “logistics and manpower”. At that point the NIS team had sufficient members to manage four suspects so I infer that it was an issue that concerned the HRP and RCMP. He continued: Q. Okay. What about ensuring that right to counsel is provided in a timely fashion? Any consideration given to that? A. Yes, there was.

And that was why we ... that's why I initially made the attempts with the RCMP and HRP or Halifax Regional Police. But because that couldn't be facilitated, that's when the plan was to divvy them up so that at most, while one is speaking to legal counsel in either location, the other one will hopefully not have to wait too long again to speak to them. Q. Okay. So for the accused persons who were brought to the Hollis Street location, what was the plan, at the arrest briefing at least, in terms of facilitating their access to a lawyer? A.

One at a time they would be escorted in, given the rights to speak to legal counsel in private.

Q. Uh-huh. A. And upon completing that conversation, they would be escorted back to the foyer and the next person would be afforded the opportunity. (emphasis added) [ 28 ] WO Seymour sought to ensure what he felt was an appropriate facility for the exercise of the right to counsel. In doing this, he decided upon the Duty Counsel Room (DCR) as the solution, to the exclusion of any other: Q. Okay. Had there been any consideration in terms of the right to privacy in terms of facilitating someone accessing a lawyer in some location other than the Duty Counsel Room at Hollis Street? A. No.

In our facilities, we have one room that is designated as a client-solicitor room. It is equipped with internet computer. It has the Yellow Pages. It has a telephone there. And it is set up ... and that room is sanitized and designed for rights to counsel for the person that needs to apply and use these services. Q. Okay. Is there any other location in the Hollis Street location where you could have facilitated access to counsel? A. No, there is not, sir. [ 29 ] WO Seymour was asked about using other rooms at the NIS offices. He had not turned his mind to that possibility.

For example, when he was asked about the ability to monitor someone in Room B, he responded: Q. Okay. And again, I don't want you to guess at these questions if you don't know the answer, or any questions. Is it possible to leave the video on but turn the audio off? A. I'm not sure, sir. [ 30 ] Similarly, WO Carter and MCpl. Chase only considered the use of the DCR as the place in which Mr. Finbow would speak to counsel. MCpl. Chase was asked what “…the rationale was for that plan” and he replied: “Just for safety reasons, officer safety….

As well as it's just where we talked about in the morning brief where we would handle that situation, that part of the process.” He was asked whether he gave “any thought” to providing Mr. Finbow access to counsel in the vehicle. MCpl. Chase replied “No” and that “It's just common practice for the police to do it behind closed doors.” [ 31 ] Later he testified: Q. Did you ever consider whether or not to provide Mr. Finbow with access to a lawyer in another part of that facility? A. No. Q. You didn't consider it? A. I did not. Q. Okay. Did you have any concerns about the time frame in which Mr.

Finbow would have access to a lawyer? A. No. [ 32 ] WO Carter testified: Q. Okay. Now once you arrive, what was going to be done with respect to Mr. Finbow's right to counsel? A. There was ... the Duty Counsel Room was there. Another individual that was arrested at Shearwater was already in the counsel room. Q. Uh-huh. A. So the plan was to keep him in that interview room until the first individual was finished, and then he would be provided an opportunity to talk to a lawyer. [ 33 ] WO Carter was asked to specifically address the implementation question: Q.

Did you have any concerns about the timeframe in which Mr. Finbow was going to speak to his lawyer? A. No. Q. Would it be possible that headquarters at the Hollis Street location to provide someone with access to a lawyer in another part of the office? A. No. Where the interview rooms were, it was all audio-video-recorded and the Interview Room B was recorded. There's no other offices in that area. And the rest of the office is pretty much an operation zone. So there's no other dedicated place for ... to talk to a lawyer.

[ 34 ] Three principle reasons were offered as to why the officers believed that Mr. Finbow could only consult with counsel while in the Duty Counsel Room: (

i) Officer safety; (ii) The DCR was designated for this purpose in the plan developed by WO Seymour prior to the arrest. It had the computer for an internet based search of lawyers, a land based phone line, a phone book, and a window in the door to monitor Mr. Finbow while he was in the room. It was also thought to be sound proof. (iii) There was no other place in the NIS offices that was suitable for this purpose. Officer Safety [ 35 ] Officer safety is sometimes relied upon to justify the delay in implementing the right to counsel. On this issue, WO Seymour said: Q.

When the officers were facilitating the arrests, were there concerns about officer safety? A. Yes. During my initial brief, that is always my concern. I am personally ... I'm a use of force instructor. And every briefing I give regardless of the nationality of the person or who's involved, officer safety is always a primary concern. The vehicles used to transport, again there is no silent partner so that's always a concern. But officer safety is a number one concern, yes, that I would have. Q. What information did you have about members of the Royal Navy hockey team for effecting the arrests? A.

We didn't have any specific background information. All we knew is that they were members of the British military. So based on that alone, we knew they would have some kind of ... well, we could I wouldn't say assume, but we could make a good guess that they would have some kind of training if I compare their training to what a basic soldier would get in the Canadian Armed Forces. [ 36 ] MCpl. Chase testified that the only safety concerns he had were at the point of arrest, and that related to the number of people who were present at the time of the arrest. He stated that on arrest Mr.

Finbow was “very compliant, had a calm demeanour” and was “sober”. [ 37 ] WO Carter testified that Mr. Finbow showed little or no emotion on his arrest. He expressed no concerns about officer safety in relation to Mr. Finbow’s detention. [ 38 ] The evidence that officer safety issues constituted a reasonable barrier to the delay in implementation of Mr. Finbow’s right to counsel is wholly inadequate. It was evident immediately upon his arrest that he was compliant and non-confrontational.

It is reasonable that the officers did not want to leave him alone in a van, that had no silent partner, to make a phone call to counsel. However, once at the NIS offices the differences in the ability to control Mr. Finbow at any place in that office were negligible. Throughout his time at the NIS offices there was no perceived or actual threat from Mr. Finbow. [ 39 ] The officers were as capable of ensuring their safety whether Mr. Finbow was in Interview Rooms A, B, the Board Room, or the Duty Counsel Room, being the most likely alternative locations for a consultation with counsel.

The issue of monitoring him during a phone call is dealt with separately. A suitable space [ 40 ] There was a singular focus on access to counsel being effected according to WO Seymour’s plan. While the delay from arrest to arrival at NIS offices was reasonable, the added time of waiting in the office rendered the entirety of the delay in access to counsel unreasonable. It is evident that none of WO Seymour, MCpl. Chase or WO Carter had the necessary appreciation of the significance of the obligation to provide “immediate” access to legal counsel. [ 41 ] The logic of the plan also shows its flaw.

WO Seymour and the other officers saw it as a choice between immediate access to counsel and the implementation of the right to counsel in a pre-determined location, even if it resulted in delay. The plan opted to place a priority on location over immediacy. [ 42 ] WO Seymour presupposed that there would be a delay in implementing the right to counsel and that such delay was acceptable. His testimony signals this attitude when he said: “…while one is speaking to legal counsel in either location, the other one will hopefully not have to wait too long again to speak to them.”

[ 43 ] The advantages of the designated DCR in the mind of WO Seymour, were that it had a computer for an internet based search of lawyers, a land based phone line, a phone book, and a window in the door to monitor Mr. Finbow while he was in the room. It was also thought to be sound proof.

He felt that there was no other place in the NIS offices that was suitable for this purpose. [ 44 ] As Suberu, supra , reminds us: Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter the police have … a duty to facilitate that right immediately upon detention. [ 45 ] The question is whether, on the circumstances in this case, the evidence supports a conclusion that the barriers to the use of other spaces, were limitations that justified the delay. [ 46 ] I accept that it would be unreasonable to place a suspect in an active working space containing sensitive and personal information.

I do not accept that the evidence establishes that there were reasonable barriers to the use of the Board Room #2008, Interview Rooms A or B as places for Mr. Finbow to have made a phone call to counsel. [ 47 ] The officers candidly acknowledged that they never considered these areas as possibilities at the time. Their testimony offered an after the fact justification for ruling out these areas. [ 48 ] The evidence does not rule out the availability of the Board Room during the period of 10:10 a.m. to 11:00 a.m. (while Mr. Finbow was waiting to access the DCR). Interview Room A was unoccupied while Mr.

Stoner spoke to counsel in the DCR, being approximately 10:10 a.m. to 10:51 a.m. Interview Room B was already in use by Mr. Finbow and so available as a place to make a phone call. [ 49 ] There was no barrier to Mr. Stoner’s and Mr. Finbow’s ability speak to duty counsel concurrently. Megan Longley, of Nova Scotia Legal Aid explained that in cases of multiple accused seeking counsel simultaneously the policy is: A.

So during business hours, it would typically be different lawyers usually from different offices, although not always, providing advice to multiple accused. [ 50 ] The essential things needed to enable Mr.

Finbow to consult counsel were a phone, access to phone numbers for counsel, privacy, and security (for the officers and the suspect). [ 51 ] While access to a computer and the internet is an added resource, access to a phone book and phone numbers is traditionally sufficient to contact counsel and they are not location dependent. [ 52 ] The ability to find the contact information for counsel was not dependent on the use of the DCR. Once the question of implementation was engaged, Mr. Finbow stated his intention to speak to Duty Counsel, whose phone number was known to the police and which number(

s) were posted on a sign in Room B. (In fact, MCpl. Chase placed the initial call to counsel for Mr. Finbow.) The phone book could also have been provided to him. Thus, the DCR was not necessary to the ability to locate counsel. [ 53 ] What evidence is there with respect to the lack of phone access in rooms other than the DCR? [ 54 ] There were no land based phones in Room A or Room B, but the evidence does not eliminate the possibility that these rooms were wired for one. [ 55 ] Board Room #2008 was described by MCpl. Chase (118-9): Q. And in terms of whether or not there's a telephone in this particular room. A. Yes, there is. Q. Okay. Can you describe that telephone to us?

A. Yeah, it's a conference phone. It's not a typical phone. It has a speaker on it. You can't have, like, a receiver up to your ear and talk to anybody in private. It would be out loud so that everybody in the room could hear. [ 56 ] If there was a telephone jack for a conference phone and that phone was not considered to be a reasonable choice for access to counsel then an alternative, not discussed, was to switch phones to a standard phone. [ 57 ] Portable or cell phones were not explored as possible options for use in any of the three rooms. The evidence shows that cell phones were available.

WO Seymour indicated that MCpl. Chase spoke with Duty Counsel Burrill on a cell phone which was handed to WO Seymour for their discussion about Mr. Finbow’s case. A cell phone was seized from Mr. Finbow during the search of his person at Warrior Block. Whether it would have been appropriate to allow him to use that phone was not canvassed in evidence. [ 58 ] It is not at all clear that a phone could not have been provided to Mr.

Finbow for his use in one of those three rooms. [ 59 ] As will be discussed in relation to the “right to privacy” argument, there were significant issues of sound transmission among Interview Rooms A and B and the DCR, to the point that none of the rooms were beyond criticism. To the extent that one room could be preferable to another for its soundproofing PO2 Kimberly Clowe testified, in relation to the use of Room B: Q. Is there something more soundproof that you know of about Room B than the Duty Counsel Room? A.

Not that I'm aware of, sir. [ 60 ] Therefore, the DCR was not the only private location to make a phone call. [ 61 ] The DCR was preferred because it has a window that could be used to intermittently view the accused during his phone call. The evidence is that only the DCR permits a view into the room. [ 62 ] PO2 Clowe was part of the team that arrested Craig Stoner. Her testimony, given in relation to Room B summarizes the concerns: Q. Could someone ... aside from using duty counsel, could someone use Room B to contact counsel? Would there be anything wrong with using that room? A.

I think there is a problem with that, sir, because that is also video and audio-recorded. Q. Right. You know, though, having been in the monitor room, you can shut that down. You can shut down a camera. You can shut down a microphone in that room. A. Yes, you can, sir, yeah. Q. All right. So that takes care of that problem. What other problem would there be about using that room? A. The door itself doesn't have a window like the Duty Counsel Room does so that at any time we could monitor to make sure of the safety of the suspect that's inside, we can make sure that they're still ... everything is okay. Q.

You're concerned about that person harming themselves? Is that what it would be? A. Well, at any ... yes, sir. Q. All right. They've been searched, but nonetheless they could use something. We all know that they could use something to harm themselves, is that correct? A. Yes, sir. Q. Yes, okay. But that could be monitored through the camera, couldn't it? Couldn't you watch from the monitor room on that camera, turn off the microphone, and keep an eye on that person? A. Yes, sir, I guess, yeah, it can be used. [ 63 ] As discussed previously, the officers had no basis for, nor actual, concerns about Mr.

Finbow’s compliance. There was no apparent threat. He was searched and so did not have access to a weapon. [ 64 ] There was no evidence to show why these rooms could not have been “sanitized” for use by Mr. Finbow to make a phone call. Interview Room A is shown and described in the evidence – it is sparsely furnished. Interview Room B has two tables and a lamp that

could easily have been removed and two much larger pieces of furniture unlikely to be useful as a “weapon.” There are no photos and minimal evidence as to what was in the Board Room that would render it unsuitable from a “safety” perspective. [ 65 ] Allowing that a visual monitoring of the suspect was necessary the evidence does not eliminate the possibilities that it could be conducted in rooms other than the DCR. PO2 Clowe testified that one could monitor Interview Room B and turn off the microphone. If that is accurate then presumably the same equipment would have the capacity to do that in Interview Room A.

There is conflicting evidence as to whether the audio could be turned down and the recording stopped. [ 66 ] Sgt. Tyler Bruce-Hayes testified: Q. I just want to ask you about your experience with using the monitor room and the audiovisual equipment in the monitor room. When the equipment in the monitor room is on so that you can see video on the monitor from the camera in Interview Room B, can you watch that video without listening to the sound in that room? A. Yes. The only way you can do that is by turning down the volume on the TV, so ... Q. Okay.

And are you able to ... while the monitor room is monitoring the camera in that room, are you able to turn off the recording equipment ... the microphone recording? A. No. Q. You can turn down the volume but you cannot turn off the microphone? A. That's correct [ 67 ] The conflict as to whether the microphone could be turned off, or if the recording could be turned off is, in my view, unsettled. There is no question that the audio would have to be turned down so that the conversation would not be heard, and that any recording of a privileged conversation would have to be erased immediately.

I believe that the officers would understand and do that if it was necessary. The problem is that no one considered these possibilities prior to or at the time of the detention of Mr. Finbow. [ 68 ] Board Room #2008 was described by MCpl. Chase (118-9): Q. Are there any AV capabilities for the meeting room? A. Pardon me? Q. Any audiovisual capabilities in the meeting room? A. Yes. Actually, we have a TV in that room that's also connected to Interview Room A and B, and you're able to listen in and watch the interviews taking place. Q. Okay.

So if you're in 2008, there's technology that would allow you to hear what's going on in ... A. Yes. Q. ... in the interview rooms? A. Interview Room A and B. [ 69 ] The evidence does not indicate whether it is possible to use the audio-visual equipment to monitor inside the Board Room. The possibility was neither ruled in or out. [ 70 ] At a minimum, there is evidence that the officers could visually monitor the accused in Interview Rooms A or B by use of the video equipment.

The evidence does not satisfy me that the need to monitor the accused was a reasonable barrier to implementing his right to counsel “without delay”. Conclusion [ 71 ] I conclude that Mr. Finbow’s

section 10(

b) right to consult counsel without delay was violated. There was a 1 hour and 20- minute delay in implementing his right to counsel, thus it was not provided immediately, as is the constitutional right of an accused. [ 72 ] The onus of proving that the delay was reasonable is on the prosecution. I find that the explanations do not justify the delay in implementing Mr. Finbow’s right to consult counsel. As stated in Taylor “Barriers to access must be proven, not assumed, and proactive

steps are required to turn the right to counsel into access to counsel.” In my view, the officers made errors in judgement which caused the delay. They: 1. Did not appreciate the legal significance of the need for immediacy; 2. Failed to consider the total time elapsed from the point of detention until the implementation of the access to counsel; 3. Developed a plan that presumed a delay in at least one suspect being able to access counsel without considering other viable alternatives; and 4. Did not consider viable alternatives even when it should have been evident that it was taking too long to implement Mr.

Finbow’s right to consult with counsel. Remedy [ 73 ] I will address the appropriate remedy as part of my overall assessment of the alleged Charter violations in the arrest and detention of Mr. Finbow. Issue 1(b): “The right to consult counsel in private” Introduction [ 74 ] Attached as “Appendix A” to this decision is a copy of Exhibit VD1-1, being a floor plan of the National Investigative Services (“NIS”) offices where the accused was detained and interviewed. [ 75 ] The Duty Counsel Room (2018) (“DCR”) was designated for Mr. Finbow’s phone call to consult legal counsel.

Interview Room A (2017) was reserved by the officers for suspect interviews - the so-called “hard interview room”. It shares a common wall with the DCR. Room A and the DCR are relatively small rooms. Interview Room B (2015), the “soft interview room”, is generally used to conduct interviews of complainants and other witnesses. It is directly across the hall from the DCR. [ 76 ] Both Rooms A and B are equipped for audio and visual recording of interviews. The proceedings can be monitored from room 2013 which is designated for that purpose.

The monitor can listen to the interviews through headphones or over a speaker. There is also a capability to monitor the interviews from the “Meeting Room” (also referred to as the Board Room or the Conference Room) -(2008). [ 77 ] Audio-visual recordings made in Interview Rooms A and B during the time that Mr. Finbow was in custody at the NIS offices have been admitted into evidence in this voir dire . Those recordings demonstrate that voices and other noises from the DCR, Interview Room A and the hallway outside these rooms could be heard in Interview Room B, while Mr.

Finbow waited to consult with legal counsel in the DCR. There is also testimony that sound was transmitted between Interview Room A and the DCR during the time that Mr. Stoner and Mr. Finbow were detained in those areas. From time to time it is possible to hear the exact words being spoken in adjoining areas. [ 78 ] The accused alleges that the evidence supports the conclusion that he lacked privacy when consulting legal counsel and that therefore his

section 10(

b) Charter right to privacy was violated. Law [ 79 ] In R. v. MacKinnon 2013 NSSC 356 , Wood J. was called upon in a

summary conviction appeal to consider the principles applicable to an argument based on a lack of privacy. He wrote: 11 A party, such as Mr. MacKinnon, who alleges a violation of his right to counsel must prove that breach on a balance of probabilities . If a breach is established, the court must then consider whether there ought to be an exclusion of evidence pursuant to s. 24(2) of the Charter . This exercise involves the weighing of a number of competing factors.

12 The courts have recognized that the right to consult with counsel includes the right to do so in private. The Ontario Court ofAppeal in R. v. Playford, (ON CA), [1987] O.J. No. 1107 stated as follows: 31 In my opinion, the right to retain and instruct counsel without delay carries with it the right to do so in privacy. It would defycommon sense to expect an accused person to instruct counsel properly when his instructions can be overheard by other persons and inparticular by police officers. Such lack of privacy might even seriously prejudice his ability to retain counsel.

Retention of counselusually requires some explanation by the accused of the circumstances which have led to his arrest. ... 13 The Court in Playford, supra, also recognized that even in the absence of evidence that the conversation was heard, there wouldbe a violation of the right to counsel if the accused reasonably believed that his discussions could be overheard by police.

This isillustrated by the following passage from the decision: 38 It seems clear that, so far as circumstances permit, an accused should not be questioned by police until he has had the right toretain and instruct counsel and that right is one that is to be afforded to him without delay in so far as circumstances permit. Privacy is amatter which is inherent in that right. In my opinion, proof that an accused could instruct and consult counsel in private only bywhispering or by some other unusual device does not meet the test of privacy.

An accused who believes that his conversation will beoverheard by the police will of course be substantially prejudiced in making use of his right to retain and instruct counsel. That does notmean, of course, that every accused who has such belief no matter how unreasonable, can assert that his right to retain and instructcounsel has been infringed.

Where the circumstances are such that an accused would reasonably believe that his conversation to retain orinstruct counsel could be overheard by police, it cannot be said that his right to privacy has not been infringed unless it can be shown thathe was in fact able to retain and instruct counsel privately. (emphasis added) [80] Justice Wood reviewed examples of cases where a lack of privacy was put in issue and then considered the impact, if any, of anaccused’s failure to object or make their concerns known to the police in determining the reasonableness of the accused’s belief that theycould not retain and instruct counsel in private.

See, at paras. 18 to 21, and citation from the cases of R. v. Burley, (ON CA), [2004] O.J. No. 319, and R. v. Ogbaldet, [2010] O.J. No. 4487. [81] Justice Wood summarized the applicable law in this way: 22 Based upon these authorities, I believe the test to be applied in assessing an alleged breach of s. 10(

b) of the Charter is whetherthe accused believes that their privacy has been infringed and whether this belief is reasonable in the situation. The use of the term"reasonable" carries with it an element of objectiveness. Subjective belief alone is not sufficient.

Whether the accused has made anobjection or expressed concerns about the privacy of their consultation with legal counsel is simply one of the circumstances to consider.Without other objective evidence to substantiate the claim, one can see where the absence of a complaint would be significant inassessing the reasonableness of the belief. 23 Where there is other objective evidence to support the belief that there is no privacy, the absence of a complaint is lesssignificant. For example, in Ogbaldet, supra, the accused could hear voices from outside of the room. This was also the situation withMr. Carroll.

With Ms. Burns, there was no evidence that she had been told that the prisoner in the next cell had been moved. In all threeof these cases there was a breach of the accused's s. 10(

b) rights, even though there was no complaint or objection made at the time. 24 I have been referred to no cases which state that the failure to object and request privacy is always fatal to an allegation of breachof the right to consult legal counsel in private. I am satisfied that there is no such proposition in law. (emphasis added) Sub-Issues 1. Did Mr. Finbow, subjectively, believe that his right to privacy when consulting with counsel was infringed? 2. If so, is there objective evidence to support the belief that the consultation was not private? 3.

If the accused establishes, on the balance of probabilities, that his right was infringed then what is the appropriate remedy? Analysis Sub-issue 1: Did Mr. Finbow, subjectively, believe that his right to privacy when consulting with counsel was infringed? [82] Mr. Finbow was subject to direct and cross-examination as to what he saw and heard from the point of his initial arrival inRoom B until the commencement of his interview by MCpl. Biso in Room A. He also spoke to the impact of what he heard on his senseof privacy in consulting counsel and on his decision making when deciding to give a statement.

[ 83 ] In cross-examination, Mr. Finbow described at some length that: • while he was in Room B he could hear voices from the Duty Counsel Room during that time when Mr. Stoner was in that room; • while he was in the Duty Counsel Room, between his conversations with Mr. Burrill and before they moved him back to Room B, he “could get the gist of what was happening within the Interview Room” between MCpl. Biso and Mr. Stoner; • while he was in Room B, after speaking to Mr. Burrill, he could hear portions of MCpl. Biso’s interview of Mr. Stoner, especially the comments and tone of MCpl.

Biso. [ 84 ] In direct examination, Mr. Finbow stated that while he was in Room B, he could see and hear Mr. Stoner, when the latter was in the DCR with the door open. Mr. Finbow said that once the DCR door was closed he could still hear conversation coming from the DCR. In addition, he knew that officers were in the corridor between Room B and the DCR during this time: A. So I knew Craig was in there because I heard him getting a brief off of Officer Gouthro.

The general chatter outside in the corridor was officers explaining where ... or what he's doing on the phone or who ... or what he's about to do on the phone. There was officers talking about certain lawyers, I believe. [ 85 ] On the same issue, he later said: Q. You indicated that you were taken to the soft room. You stayed on the sofa in that room. You knew Craig, Mr. Stoner, was in the duty-counsel room because you'd seen him. A. Yes. Q. And you'd also heard him, I believe, as well. A. Yeah. Q. You heard him getting a brief from Gouthro. A. Yes. Q. And that was a brief concerning what? A.

Duty counsel, I believe. I didn't know if it was Gouthro or Biso. But I'd assume Gouthro because he was the arresting officer and ... but I believe it was the duty-counsel brief on “this is the computer”, “there's the phone”. Q. All right. And it's your view that fairly soon after you go into interview room B, you're hearing that brief from one of the officers to ... A. Yes. Q. ... Mr. Stoner speaking about duty counsel. A. I believe so, yes. [ 86 ] In cross-examination, he agreed that the door to the DCR may have been open when he heard MCpl.

Gouthro speaking and that sounds were muffled when the door was closed. He also acknowledged that he could not hear Mr. Stoner speaking to legal counsel. [ 87 ] Mr. Finbow was in the DCR on two occasions. The first was from approximately 10:53 a.m. to 11:03 am., and the second was from approximately 11:07 a.m. to 11:26 a.m. He testified that during the first of these he could hear part of the interview of Mr. Stoner: Q. Okay. And did you know where Craig was? Did you know what was going on with Craig? A. Yeah, so I got moved away from the duty-counsel room because I could hear Craig going in ...

Craig's interview going on. I heard Biso talking. And I believe it was Officer Chase again moved me into the soft room again, B. Q. Uh-huh, okay. Do you remember when you first heard Craig's interview? Were you in Room B before you went to duty- counsel, or were you in duty-counsel or ... A. I believe I was in Room B when I heard Biso go into the room and introduce himself to Craig as the polygraph examiner. Q. Uh-huh. You think you recall hearing that? A. I recall hearing that, yeah. Q. I see, okay, all right.

And then you told His Lordship that when you're in duty-counsel room, I believe before you're removed, I thought I heard you say you could hear the interview as well.

A. Yeah. I would have been about in real terms four yards, four or five yards away from Officer Biso himself. So I could hear his deep voice going through the first part of the interview. [ 88 ] He testified that while in the DCR he could also hear the officers in the corridor outside the door to the DCR, and the effect it had on his consultation with counsel: Q. I know I'm jumping around a little bit. When you're in duty-counsel room, what could you hear? A. So I could hear the muffled sounds coming from next door in interview room A. I could hear ...

I believe it was Clowe at the door of the duty-counsel room talking to another officer, but I wasn't aware who that is, I believe, so in interview room A and the corridor. Q. In the corridor. A. Yes. Q. And is your duty-counsel room door, is it open or closed? A. It would have been closed at that point with the sliding window open, the shutter. Q. Okay. Do you know why you didn't express to Mr. Burrill these things that you were thinking about? A. I believe it was because I didn't have that rapport with him, and I didn't find trust that I was talking to an independent source as such.

And I personally thought ... remembering back to the time there, I thought that hearing Clowe would have an adverse effect and she could hear me as well. So, I didn't want to ... I didn't want to say what had happened on ... or say what I'd been through on the phone in that duty-counsel room. [ 89 ] He continued, describing what he heard when he returned to Room B after consulting counsel: Q. Uh-huh, all right. And can you ... you talked about things earlier that you could hear.

What are you hearing when you, you know, return to Room B before you go back to duty-counsel room, and what are you hearing when you're done with duty counsel completely and you go back to the waiting room? A. So I'm definitely hearing Craig's interview going on. However, it's through the walls itself or I'm pretty sure it came through the monitoring room on speakers. But I could hear and make out Biso talking to Craig in his interview. Q. Uh-huh. And how would you describe what you could hear? A. It started off as a normal volume.

And obviously towards the end, it was pretty ... you could hear pretty clear what he was saying due to the raised levels in his voice. [ 90 ] On the matter of where the sound was originating he said: Q. And when you told His Lordship that some of which you heard might have been coming from I think you said a speaker in the monitor room ... A. Yes. Q. ... why did you say that? What caused you to get that impression? A. You can just tell through the feedback of the voice as well. It sounded like it was coming from a speaker.

And the only ones around us was in the monitoring room. [ 91 ] Prior to entering into the interview with MCpl. Biso, Mr. Finbow heard this conversation taking place outside Room B: A. Apart from one when I was getting shown that list. I was told that Craig was spilling the beans at the end of ... at the end of Gouthro's involvement in that. And apart from that, that was the only thing that ... that caused concern for that, that interview. Q. Yeah. Why did that cause concern to you? A. Because I knew the pressure that Craig was being applied with in the interview room.

And I thought if he's spilling the beans with that, then I'm definitely just going to go in and try and have as calm an interview as possible. [ 92 ] He then discussed the interview and his thought process: Q. Do you recall going in for your interview with James Biso? A. Yes. Q. And had your thoughts about speaking to him, about speaking to the interviewer, had they changed at all between coming out of duty-counsel, going back into Room B having spoken to Mr. Burrill, and from that point waiting in that room before you go in to talk to Biso? A. No. I'd say they were ...

I'd kept the same thought of what I was going to do pretty much all the way through. I didn't take on much information at all from my duty-counsel talk.

Q. All right. Did you experience, encounter, hear anything while ... before you go to Room A? Did anything come to you that impacted your decision to speak to Biso? A. I'd say the whole of Craig's interview. Q. The whole what? A. Of Craig's interview. Q. Craig's interview. A. Or Stoner's. Q. Okay, all right. And what could you hear? Could you hear Biso and Craig, or could you hear both of them in other words or one of them or ... A. Yeah, I could hear both of them. I could hear Biso. I could make out what Biso was saying. But I could hear Craig's tone of voice. I couldn't understand what he was saying.

I knew when Biso stopped talking, I heard another voice that would have been Craig's, but it obviously didn't go on for long between Biso shouting ... Q. Uh-huh. A. ... and talking [ 93 ] Mr. Finbow’s testimony, in some respects, does not conform to the recorded evidence. e.g . during cross-examination, he corrected the timing as to when he received the list of lawyers provided by the British government. He acknowledged his error without hesitation.

There are other issues in the sequencing of events. [ 94 ] The Crown points out that despite the sensitivity of the microphone in Room B it did not record some of the conversations that Mr. Finbow says that he heard when in that room. The inference is that Mr. Finbow could not have heard some of the things that he said that he heard. [ 95 ] These matters raise legitimate challenges to Mr. Finbow’s reliability, and possibly to his credibility. On the whole, I find that Mr. Finbow presented as trying to honestly convey the circumstances of his arrest, detention and the taking of his statement. Sub-Issue 2.

If so, is there objective evidence to support the belief that the consultation was not private? [ 96 ] Any concerns that I may have had with Mr. Finbow’s recollections have been mitigated by the substantial objective evidence of a highly inappropriate atmosphere that seriously compromised any expectation that he would have for privacy when consulting counsel. [ 97 ] The video evidence speaks for itself.

It is clear that conversations, that took place outside of Interview Room B, could be heard to varying degrees in Room B. [ 98 ] There is other evidence that describes the issues of sound transmission throughout the areas where Mr. Finbow was held. [ 99 ] Craig Stoner testified to what he could hear when in the Duty Counsel Room: Q. Uh-huh, okay. And during your ... you did have a call with a lawyer, is that correct? A. Yes. Q. All right. And can you tell His Lordship what if any noises, what if anything was going on around you outside of that room? A. I could hear people moving around.

I heard the police officers talking to one another, and that was it. [ 100 ] MCpl. Biso is an experienced statement taker who interviewed both Mr. Stoner and Mr. Finbow. The recording in Room B was played for him in its entirety. He was able, from time to time, to identify voices of officers who are off camera. In some instances, he could relate what the officer’s words were. [ 101 ] He agreed that this situation was not “ideal”. He said:

Well, in the general aspects of it. It's not a desirable spot to have arrested people waiting. It's not built or designed for that. So the answer to your question is if I'm picked up in any way talking, yelling, or whatever, that is not ideal at all, in my opinion [ 102 ] He confirmed that the Room B recording picked up his conversation in Room A: Q. Okay. So we're listening to the ... I guess the microphone from Room B. And what you're explaining is you're in Room A and you're doing the

preamble. And Mr. Finbow ... perhaps you can hear it in Room B in this scenario in the courtroom. He can hear what you're saying in Room A. Right? A. Yes. Q. Okay. Is that something that you, before April 16th, were aware of? A. No. Q. And is knowing now that this occurred, he could hear you going through your

preamble ... and it's not just one ... your

preamble is not just one sentence. It's maybe a paragraph ... a thick paragraph? A. Yes. Q. Yes. All right. Is that something you want someone who's going to be interviewed to hear? A. No. [ 103 ] MCpl. Biso acknowledged “yelling” at Mr. Stoner during his interview, but that the sound transmission problem was greater than that issue: Q. And no one, until today, until you experienced it yourself, no one from the suite of offices that day told you that they've heard this. A. Not this specific. I did hear that my voice was heard, but my understanding it was probably the part where you call I was yelling that must have been what was picked up. I didn't realize that it was the

preamble when I was talking like I'm normally talking. Q. So how could that ... I mean how could that happen that the door is closed in Room A and you're not yelling? You're not yelling the

preamble. There's nobody in there to be confrontational with. Correct? A. Yes. Q. Am I correct? A. Yes. Q. Does it make sense that someone in Room B could hear that? A. Well, we're hearing it from our own ears, so it is happening. Is that ideal? No. I'm not sure what answer you're looking for, but it has to make sense because we do hear. Q. Yeah. Well, doesn't it show how unsoundproofed this police office is? A. Yes. It's there. And, of course, being an interviewer, that is not ideal at all. Q. Okay. So you wouldn't be surprised if Mr. Finbow, when you are I'm going to say coming aboard Mr.

Stoner, again in his interview, you wouldn't be surprised, if he's in Room B, that he could hear that too. A. Yes. Q. Because he ... A. I wouldn't be surprised. [ 104 ] MCpl. Chase also testified to the sound transmission problems from Room A to the DCR: MR. KNOX: Okay. Had you to do this over again, you would, I assume, have checked Duty Counsel Room to see what could be heard in that room from what was going on in Room A. A. At that moment, I believe that ... again, I could hear some ambient noise. However, I also wanted to afford Josh the opportunity to speak with a lawyer. That's our counsel room.

That's where all the numbers are. That's where I just previously provided Roger Burrill the contact number. So he was the one who would be calling Josh in that room. I guess my main concern with this whole process is that I do wish that our ... our rooms were more sound-proofed. However, the ambient noise I don't think would have distracted him to be able to concentrate on what duty counsel was offering him. [ 105 ] According to MCpl. Chase at least some of the officers were aware of the problem at the time: Q. Yeah.

Did you tell Carter, you know, I just noticed or I've noticed since 11 o'clock this morning that there is an issue about noise travelling, either ambient noise through the walls and the ceiling ...

A. Mm-hmm. Q. ... or noise coming from the speaker in the monitor room. A. I didn't say that to him, no. Q. Did you apprise him to anything about that topic? A. No, I ... I think that it was general knowledge that there was ambient noise in the area. Q. Mm-hmm. Why do you think that? A. Because I could hear it. Q. Yeah, I see. Okay, but you didn't converse with anybody else there - Clowe, Carter, Tyler Bruce-Harris (sic), Seymour, Gouthro - about this topic? A. I don't believe I did. Q. You'll agree it was pretty noteworthy when earlier you went in to do the sound check and you closed the door. A. Correct.

Conclusion [ 106 ] The objective evidence corroborating Mr. Finbow’s concerns with respect to the ready transference of sounds throughout the area of Rooms A, B and the DCR is incontestable. [ 107 ] The degree to which Mr.

Finbow could or could not make out the words spoken by various persons may mitigate to some degree what those words did to influence him, but it does not negate the fact that he could reasonably believe that his consultation with legal counsel was not “private”. [ 108 ] I conclude that it is more probable than not that officers standing immediately outside the DCR could hear the accused when he was speaking to counsel. That they did not seek to do so, or that they did not do so, does not impact on his reasonably held belief that they could do so. [ 109 ] Mr.

Finbow has met the burden of proving on the balance of probabilities that his

section 10(

b) Charter right to privacy was violated. Remedy [ 110 ] I will address the appropriate remedy as part of my overall assessment of the Charter violations in the arrest and detention of Mr. Finbow. Issue 1(c): The right to consult counsel of choice [ 111 ] The accused submits that the police infringed his right to counsel of choice and thereby violated his right guaranteed by

section 10(

b) of the Charter . [ 112 ] WO Chase informed Mr. Finbow of his right to counsel at the time of the arrest. He testified that he told Mr. Finbow: It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish . You also have the right to free advice from a Legal Aid lawyer. If you are charged with an offence, you may also apply to the provincial Legal Aid plan for assistance."

(emphasis added) [ 113 ] I am satisfied that Mr. Finbow understood that advisory which told him that he had a choice of counsel. [ 114 ] MCPL Chase discussed this with Mr. Finbow again, just before the accused went into the Duty Counsel Room: MCpl Derek Chase : [10:48:15] All right, Josh, I’m just going to let you know, we’ve got a number here for a lawyer in Nova Scotia, Legal Aid. They’re just duty counsel. They can help you out. You can choose to talk to those people or this is a list of lawyers prepared by the British High Commission . Basically, we’ve been in contact with them.

These are the lawyers that they’ve -- MCpl Darryl Gouthro: [10:48:38] In Nova Scotia is in the back. They’re not guaranteeing -- that these -- that they’re going to be covering these people but these are people that have already made arrangements apparently to -- MCpl Derek Chase: So it’s up to you. You can contact one of these ones or the local duty counsel so -- Joshua Finbow: [10:48:54] I’ll just go with duty counsel. [ 115 ] Taken by itself, it seemed to make Mr. Finbow’s choice a binary one: duty counsel or one of the lawyers listed by the British High Commission.

Other than this exchange, there is no evidence that a police officer suggested, directly or indirectly, that there were conditions or limitations attached to Mr. Finbow’s right to contact counsel of his choice. [ 116 ] Mr. Finbow made his choice quickly and before MCpl Chase had finished his last sentence. There is nothing I observed in Mr. Finbow’s language or demeanour to suggest that when he made that decision he did so because he believed that he lacked a genuine choice. [ 117 ] I am satisfied that Mr.

Finbow was aware that he had the choice of counsel, and that he could use the computer, the phone book, or the list of lawyers provided by the British High Commission to locate a lawyer. He declined or did not exercise those options . Instead, he elected to consult with duty counsel. At one point, prior to consulting counsel, Mr. Finbow said “I’m happy with a duty lawyer” (see para 13 of this decision). [ 118 ] There was another reference that Mr. Finbow was “happy” with the choice of duty counsel. The recording shows that when Mr. Finbow exited the Duty Counsel Room after speaking with Mr.

Burrill, he said: MP Sgt. Darren Carter: [11:27:01] Were you happy with your advice or -- Joshua Finbow: [11:27:04] Kinda, yeah. I’m happy, yeah. MP Sgt. Darren Carter: What’s that? Joshua Finbow: Yeah. MP Sgt. Darren Carter: You’re happy. You didn’t want to talk to anybody else? Joshua Finbow: [No response heard] [ 119 ] His answer did not denote an unequivocal affirmation of his satisfaction with the “advice” he received. However, that does not speak to the choices of counsel that he was offered before the consultation. Significantly, WO Carter, after the consultation, asked Mr.

Finbow whether he wanted to “talk to anybody else”. Mr. Finbow did not take up the officer’s offer and so passed on this opportunity to choose someone else for further consultation. [ 120 ] The evidence satisfies me that while the police conduct during Mr. Finbow’s detention at the NIS offices triggered issues in relation to implementation of the right to consult counsel without delay and in private, I find that there was no violation of the accused’s right to counsel of choice. Objectively speaking, there is no basis upon which to conclude that his choice of counsel right was infringed.

Issue 1(d): The Right to Counsel and

Section 36 of the Vienna Convention on Consular Relations [ 121 ] Captain Kirsten Pilotte testified that consular access to the accused was permitted after he was arrested and processed. This has not been challenged.

[122] The Crown takes the position that even if Mr. Finbow had been denied consular access there is no 10(

b) Charter right flowingfrom such conduct. In post hearing submissions, counsel for Mr. Finbow conceded this point and acknowledged that Mr. Finbow is nolonger seeking a remedy based on the provisions of the Vienna Convention. Issue 2: Was the accused’s right to silence guaranteed by

Section 7 of the Charter of Rights and Freedoms violated? [123] Mr. Finbow has submitted that his right to silence is encompassed in

section 7 of the Charter of Rights and Freedoms and thatthe right was violated. [124]

Section 7 of the Charter states: Everyone has the right to life, liberty and the security of the person and not to be deprived thereof except in accordance with theprinciples of fundamental justice. [125] The rights that

section 7 speaks to were discussed by McLachlin J. (as she then was) in the case of R. v. Hebert [1990] SCR 151: 14 The appellant's liberty is at stake. Under

section 7 of the Charter, he can only be deprived of that liberty in accordance with theprinciples of fundamental justice. The question is whether the manner in which the police obtained a statement from him violates thatright. The answer to this question lies in an exploration of the underlying legal principles of our system of justice relevant to a detainedperson's right to silence. As Lamer J. stated in Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, at p. 503: ... the principles of fundamental justice are to be found in the basic tenets of our legal system. …. (

d) Conclusion on the Scope of the Right to Silence 68 The common law rules related to the right to silence suggest that the scope of the right in the pre-trial detention period must bebased on the fundamental concept of the suspect's right to choose whether to speak to the authorities or remain silent. Any doubt on thequestion is resolved by consideration of related rights protected by the Charter, by the Charter's approach to the question of improperlyobtained evidence, and by the fundamental purpose of the right to silence and related procedural guarantees.

In keeping with theapproach inaugurated by the Charter, our courts must adopt an approach to pre-trial interrogation which emphasizes the right of thedetained person to make a meaningful choice and permits the rejection of statements which have been obtained unfairly in circumstancesthat violate that right of choice. 69 The right to choose whether or not to speak to the authorities is defined objectively rather than subjectively. The basicrequirement that the suspect possess an operating mind has a subjective element.

But this established, the focus under the Charter shiftsto the conduct of the authorities vis-à-vis the suspect. Was the suspect accorded the right to consult counsel?

Was there other policeconduct which effectively and unfairly deprived the suspect of the right to choose whether to speak to the authorities or not? … 72 …the approach I advocate retains the objective approach to confessions which has always prevailed in our law and would permitthe rule to be subject to the following limits. 73 First, there is nothing in the rule to prohibit the police from questioning the accused in the absence of counsel after the accusedhas retained counsel. Presumably, counsel will inform the accused of the right to remain silent.

If the police are not posing as undercoverofficers and the accused chooses to volunteer information, there will be no violation of the Charter. Police persuasion, short of denyingthe suspect the right to choose or depriving him of an operating mind, does not breach the right to silence. … 79 Moreover, even where a violation of the detainee's rights is established the evidence may, where appropriate, be admitted. Only ifthe court is satisfied that its reception would be likely to bring the administration of justice into disrepute can the evidence be rejected: s.24(2).

Where the police have acted with due care for the accused's rights, it is unlikely that the statements they obtain will be heldinadmissible. (emphasis added) [126] Justice Charron, writing on behalf of the majority in R. v. Singh 2007 SCC 48, discussed the scope of

section 7: 36. On the question of voluntariness, as under any distinct review based on an alleged breach of the right to silence, the focus is on theconduct of the police and its effect on the suspect’s ability to exercise his or her free will. The test is an objective one. However, theindividual characteristics of the accused are obviously relevant considerations in applying this objective test. 37. Therefore, voluntariness, as it is understood today, requires that the court scrutinize whether the accused was denied his or her rightto silence. The right to silence is defined in accordance with constitutional principles. A finding of voluntariness will therefore be

determinative of the s. 7 issue. In other words, if the Crown proves voluntariness beyond a reasonable doubt, there can be no finding of a Charter violation of the right to silence in respect of the same statement. The converse holds true as well.

If the circumstances are such that an accused is able to show on a balance of probabilities a breach of his or her right to silence, the Crown will not be in a position to meet the voluntariness test. (emphasis added) [ 127 ] Justice Charron adopted the statement of Hackett J. in distinguishing as between the right to counsel and the right to silence: 43 …Under the Charter , the right to counsel, including an informational and implementational component, is provided for expressly. No such provision appears in respect of the right to silence.

Hackett J. explained the reason for the difference quite well as follows: Although the right to counsel and right to silence are equally important rights, it does not follow that they will be protected in the same way as suggested in Guimond . The right to silence, by its very nature, is exercised differently than the right to counsel and in this respect, the right to silence and right to counsel are not the same.

The exercise of the right to silence is within the control of an accused who has an operating mind and is fully informed of his or her rights, provided the conduct of the authorities do not take away his or her ability to choose. In contrast, the exercise of the right to counsel is not within the control of an accused in detention. Rather, it is dependant upon the police facilitating the exercise of that right. Consequently, it is clear that the police cannot continue to question an accused who asserts his or her right to counsel until they have helped him or her exercise that right.

The "holding off" requirement in the case of the right to counsel is therefore not necessary in the case of the right to silence because the law recognizes an accused's free will and the ability of an accused to change his or her mind about whether or not to speak to the police. This change of mind can occur either as a result of personal reasons, or police persuasion that does not violate principles of fundamental justice or deprive the accused of choice . ( R. v. C.G ., [2004] O.J.

No. 229 (QL) (C.J.), at para. 93 ) (emphasis added) [ 128 ] The position advocated by counsel for the accused relies largely on evidence of the atmosphere in the NIS offices during the time that Mr. Finbow was waiting to be interviewed. [ 129 ] In my consideration of Issue 4, I respond to the accused’s argument that Mr. Finbow’s statement was not given voluntarily. I have concluded for the reasons stated therein that the Crown has proven that the statement was given voluntarily, which effectively ends any argument that a

section 7 Charter violation occurred, that is based upon the same evidence. I am not satisfied that the accused was deprived of his right to silence. Issue 3: Having concluded then that the rights of the accused as secured by

section 10(

b) of the Charter were denied, what is the appropriate remedy under section 24(2) of the Charter ? Introduction [ 130 ] The appropriate remedy must reflect the cumulative effect of the two ways in which Mr. Finbow’s

Section 10(

b) right to counsel were violated. In my view, one violation compounds the other. [ 131 ] The accused seeks the exclusion of his statement from evidence in the trial. The Crown disagrees. Law [ 132 ]

Section 24 of the Charter provides:

(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 133 ] The framework for exclusion has been articulated by the Supreme Court of Canada in the case of R. v. Grant , 2009 SCC 32 .

The inquiry is objective and asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute. The focus is not only long term but also prospective.

[ 134 ] Section 24(2) begins with the proposition that a violation of a Charter protected Right causes damage to the administration of justice and so the remedy is intended to ensure that evidence ob

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