Published On: Jul 23,2017
July 23, 2017 What are the obligations imposed on the police to “hold-off” on collecting evidence against an accused person? This was recently considered by the Ontario Court of Appeal in R. v. Fountain, 2017 ONCA 596
In general terms, the right to counsel is protected under Section 10(b) of the Canadian Charter of Rights and Freedoms (the “Charter”). While there have been granular developments in the breadth and scope of the jurisprudence defining that section, there are three (3) duties that are imposed on the police to ensure that one’s fundamental rights that are guaranteed under that section. Those duties require the police to:
The Ontario Court of Appeal in Regina v. Fountain, 2017 ONCA 596 focused on the scope of the third (3rd) duty: the requirement to “hold off” collecting (or the legal parlance, conscripting) evidence against an person detained in police custody. Confusion often arises when a person is unclear relative to whether counsel ought to be consulted immediately or at a later juncture.
At that critical moment, the Police/State is obligated to warn the detainee. This is called a Propser warning. The purpose of that Prosper warning is meant to alert a detainee to the fact that the “hold off” period in using him as a source of evidence is suspended upon his change of mind (implicitly or explicitly) with respect to wanting to speak to counsel without delay. What’s more, that warning is intended to communicate to the detainee that, should he or shewish to seek legal advice, now that he is better informed, a reasonable opportunity to do so is required, under s. 10(b) of the Charter, to be afforded to him without delay. This applies even if the detainee has changed of mind about wanting to speak to counsel.This is the essence of the Propsper warner and it was articulated by the late Justice Lamer in these terms:
“I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, the police are required to tell the detainee of his right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity.”
This was not done in Regina v. Fountain; and Mr. Fountain’s rights to counsel were breached by a detective in Ontario. The recitation of the facts by the Court are:
[35] Specifically, after Mr. Fountain had been waiting in custody for approximately six and a half hours, Det. Dellipizzi took Mr. Fountain to the interview room. Det. Dellipizzi then explained that efforts to reach Mr. Aitken had failed but that a lawyer would be present the next day at Mr. Fountain’s bail hearing. Mr. Fountain suggested he would wait until morning. Without in any way indicating that it would be problematic for Mr. Fountain to wait to speak to his lawyer, Det. Dellipizzi offered Mr. Fountain the following options:
Dellipizzi: Um, okay. So, you – what do you want to do? You want to just wait till the morning or…
Fountain: Yes.
Dellipizzi: … do you want somebody called? Okay.
[36] When Mr. Fountain was offered the binary option of calling a legal aid lawyer now or waiting until the next day to speak to his own lawyer he would have had no reason to suspect that he would be forfeiting the “hold off” protection he had been enjoying, should he chose the latter option. Mr. Fountain was entitled to proceed as though either choice was reasonable. In this context, there was therefore nothing unreasonable in Mr. Fountain opting to wait until the next day.
[37] Indeed, rather than demonstrating a lack of reasonable diligence on the part of Mr. Fountain, the way in which Mr. Fountain came to choose to speak to his lawyer the next morning reinforces the importance of a Prosper warning. As explained, the purpose of a Prosper warning is to ensure that detainees know what they are giving up when they abandon their efforts to speak to counsel without delay. If a detainee is not advised that they will lose a constitutional protection if they choose an offered option, that offer can operate as a trap. If Det. Dellipizzi was going to treat an option he was offering Mr. Fountain as authority to begin using Mr. Fountain as a source of evidence before he had spoken to a lawyer, Det. Dellipizzi should have told Mr. Fountain this. Yet he did not do so.
[38] In these circumstances, Mr. Fountain’s decision to decline duty counsel and wait until the next day cannot fairly be taken as exhibiting an absence of reasonable diligence, and the trial judge erred by treating it as such
When obtained in violation of the right to counsel, statements will generally be excluded pursuant to a Section 24(2) analysis that stems from Regina v. Grant, 2009 SCC 32, at paras. 95 and 96. However, the Court noted, by way of general legal principles, that if a detainee is not reasonably diligent in exercising the right to counsel, the right to receive a Prosper warning at the time will also be lost. This means that the police would not be encumbered with the requirement to advise a detainee of what he will lose, if he waives his right to consult counsel without delay where the detainee has already forfeited that right by not being reasonably diligent in exercising it. The Court found that Mr. Fountain was reasonablu diligent; and it entered an acquittal, by allowing his appeal against his conviction on four (4) counts of armed robbery, four (4) counts of forcible confinement and breaking and entering. After a judge alone trial, the accused was found to be a party to a home invasion robbery during which drugs and electronics were stolen and the four occupants were tied up and threatened with a gun. He was sentenced to four years’ imprisonment.
Importantly, the Court found that when the accused said that he wanted to wait until the next day to speak to a lawyer, this ought to have telegraphed (signaled) a change of mind to the Detective, from his earlier insistence on speaking with a lawyer at that time. That officer should have provided the detainee with a Prosper warning before delving into his questioning. Mr. Fountain did not know what he would be giving up. Thus, it could not be inferred that he waived his right to consult counsel without delay. Further, by choosing to wait to speak with his lawyer the following day, he was not attempting to impede the investigation or signal that he was not serious about wanting to consult counsel without delay. He was simply selecting one of two (2) options that were put to him. Given these circumstances, his decision to decline duty counsel and wait until the next day could not fairly be taken as exhibiting an absence of reasonable diligence, and the trial judge erred by making that finding. The evidence targeted for exclusion was crucial to the Crown’s were the statements made by the detainee prior to his consultation with duty counsel were the core feature of the Crown’s case. Without it, the prosecution fails. Given the seriousness of the breach, the impact on Mr. Fountain, and the effect on the administration of justice, the statements should have been excluded according to the Court of Appeal. It averred tat the Prosper case has been the law since 1994. If the officer was aware of the law, he should have followed it. If he was not aware of the law pertaining to a core Charter duty, he should have been. At paragraphs 64-65, Court emphasized the scope of the Police’s obligations to be aware of the law:
[63] While Det. Dellipizzi presented as being careful to ensure that he did not violate Mr. Fountain’s right to counsel, and attempted to facilitate that right on more than one occasion, good faith involves much more than good intentions. Prosper has been the law since 1994. It is not an obscure decision addressing a rare event. It is a long-standing precedent governing not only a ubiquitous investigative technique – the police interview – but every case where the police use a detained suspect as a source of evidence.
[64] As Rosenberg J.A. pointed out in Smith, at para. 384, “Prosper instructs the courts to be sensitive to the rights of an accused who it is alleged has waived his rights.” The same instruction has been given by the Supreme Court to police officers, who are expected to be educated about their core Charter duties. Where an officer aware of this body of law is presented with someone who has been insisting on their right to counsel and the officer concludes that they have apparently changed their mind after efforts to reach counsel have been frustrated, the officer should take the necessary steps to ensure that the waiver was real and informed. That did not happen. If Det. Dellipizzi was aware of the law, he should have followed it. If he was not aware of the law, he should have been.
This case is critical in factual circumstances that are imbued with Section 10(b) considerations because it tills the jurisprudence one step further that crystalizing the remedy available to detainees when the police and crown evidence demonstrates a lack of knowledge, either explicitly or inferentially, on a core right under the Charter.