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The Constitutionality of the Dangerous Offender Provisions of the Criminal Code of Canada upheld by the Supreme Court of Canada.

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Under the Criminal Code of Canada (the “Code”), a “dangerous offender” designation carries serious criminal law consequences.  Generally, it is reserved for the most violent and sexual predators.  The designation carries an automatic sentence of imprisonment for an indeterminate period, with no chance of parole for seven years.   The constitutionality of those provisions of the Code were recently challenged in the Supreme Court of Canada in a case called R. v. Boutilier, 2017 SCC 64 (“Boutilier”).   The majority of the Court upheld the constitutionality of the two (2) sections of the regime that was amended in 2008.  Currently, Section 753(1) of the Code sets out this two-stage test: the designation stage and the penalty stage.  It requires the lower Court, tasked with the adjudication, at the designation stage, if a sentencing judge is satisfied that the statutory criteria under s. 753(1) have been met, the designation as a dangerous offender must follow. At the penalty stage, under s. 753(4.1), a sentencing judge must impose an indeterminate sentence on a designated individual (an ordinary sentence followed by a long-term supervision order, or only an ordinary sentence) unless he or she is satisfied that there is a reasonable expectation that a lesser measure will adequately protect the public.   In this case, the sentencing judge granted B’s application in part, finding only that s. 753(1) is unconstitutionally overbroad. Nevertheless, the sentencing judge held that B was a dangerous offender and sentenced him to an indeterminate detention. The Court of Appeal held that the sentencing judge had erred in finding s. 753(1) to be overbroad but agreed with the sentencing judge that s. 753(4.1) did not violate ss. 7 and 12 of the Charter. The Court of Appeal dismissed B’s appeal of his dangerous offender designation and indeterminate sentence.  The matter was further appealed to the Supreme Court of Canada.
The Supreme Court stated the following in relevant part:   Continue reading The Constitutionality of the Dangerous Offender Provisions of the Criminal Code of Canada upheld by the Supreme Court of Canada. →

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The Use of Identification Evidence from Eyewitnesses and Video Evidence

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Gun Charges, Weapons Offence, Eye Witness and Video Evidence.            

The Ontario Court of Appeal recently considered and reaffirmed the rules and principles governing the use of eye witness identification.   In Regina v. M.B., 2017 ONCA 653, the Court of Appeal reversed a trial judge’s decision in convicting a young offender based on the following facts.  Please note that this case has a publication ban on the identity of the accused person(s).

The Facts 

A group of men congregated at or near a bar in Hamilton Ontario. A person approach the group; and shots were fired at close range, resulting in three (3) injured persons.  The aforesaid incident was recorded on video surveillance but quality of the video was questionable.   Critical to the determination of guilt at trial was whether the accused before the Court was the person depicted on the video.   The evidence before the Court consisted of three (3) civilian witnesses who did not see what occurred relative to the shooting but watched the video, after the fact, and claimed to have recognize the accused as the shooter.   The shooter’s facial features were not visible on any of the videos. Two (2)  of the identifying witnesses were police officers who had interacted with the appellant in the past. The third (3rd) witness worked at the bar/restaurant; and had served the accused, in the past, as a customer. There was no other evidence connecting the appellant to the shooting or even showing he was in the vicinity at the time. The accused, in this case, did not testify.

In reversing the conviction, the Court of Appeal rendered the following rulings, which are considered in turn.

The General Rules Governing Eye Witness and Video Evidence

First, since the quality of the video was poor and the only evidence tying the accused to the shooting was the recognition evidence of the three witnesses, the trial judge was required to “exercise the utmost caution in assessing the identification evidence”

Second, the trial judge was wrong to interpret Regina v. Berhe,2012 ONCA 716, 113 O.R.(3d) 137 as minimizing the importance of unique identifiable features in assessing the weight of recognition evidence. Here, the witnesses’ inability to identify any special characteristic of the accused’s movement that supported the recognition was important and should have been given appropriate weight. The Court stated the following in relevant part at paragraphs 46 to 47 of the decision:

[46]        The issue in Berhe was the threshold admissibility of the recognition evidence. Berhe also confirmed the continued importance of unique identifiable features in determining the ultimate reliability of the evidence. The importance of unique identifiable features varies with how well the witness knows the person he or she identifies. The court made this clear by endorsing the following comment by Holmes J. in R. v. Panghali, [2010] B.C.J. No. 2729 at para. 42:

Common experience teaches that people have vastly different abilities to identify and articulate the particular features of the people in their lives that they know, recognize, and distinguish on a regular basis. Where a witness has but little acquaintanceship with the accused, his or her recognition evidence may be of little value unless the witness can explain its basis in some considerable detail. But at the other end of the spectrum, the bare conclusory recognition evidence of a person long and closely familiar with the accused may have substantial value, even where the witness does not articulate the particular features or idiosyncrasies that underlie the recognition.

[47]        In my view, the trial judge was wrong to interpret Berhe as minimizing the importance of unique identifiable features in determining the weight of recognition evidence. Here, none of the witnesses had a “long and closely familiar” relationship with the appellant. Constable Howard had seen the appellant in the neighbourhood and had spoken to him once for minutes at the end of August. T.C. had served the appellant an unspecified number of times in the restaurant and had seen him there, had spoken to him only when taking his order and did not know his name. Constable Kay had the greatest acquaintance with the appellant – having observed him 10 to 15 times as an undercover officer and having spoken with him on one occasion for 35-40 minutes. This was a case in which the inability to “articulate the particular features or idiosyncrasies that underlie the recognition” was important and should have been weighted appropriately.

Additional errors also were cited by the Court appeal relative to the shooter’s movement as the basis for identification. In this connection, the trial judge did not differentiate among the three (3) witnesses in this regard. In fact, only one (1) witness relied on the way the accused moved in her identification. That witness said she had seen him walk and run before and that played a part in her identification of him. She could not, however, point to anything distinctive about the way the appellant ran. She also said she knew the way the appellant held his hand on his pants. She agreed that looking at the video one could not tell if the shooter had hair in cornrows, or had regular afro hair, or hair that was braided. With respect to the other two witnesses, the trial judge appeared to have speculated that they must have relied on the shooter’s movement to identify him. The Court of Appeal held that it was an error to surmise a basis for identification that the witnesses themselves did not claim.

What is more, trial judge also failed to keep in mind his initial caution about the fallacy of mistaking certainty for accuracy. In his analysis, he emphasized how certain each recognition witness was in his or her identification.   In relying on the witnesses’ certainty, there is no echo in the trial judge’s reasons of his initial recitation of the caution of the Supreme Court in Hibbertthat the danger of identification evidence is that “it is deceptively credible largely because it is honest and sincere.” The mechanism by which honest and sincere identification testimony is unreliable is explained in The Law Reform Commission Report on Eyewitness Testimony (at p. 10) endorsed in Miaponoose:

The details people add to their actual perception of an event are largely governed by past experience and personal expectations. Thus the final recreation of the event in the observer’s mind may be quite different from reality

Finally, the trial judge did not consider that: “The important point is that each of three witnesses’ identification was flawed. The trial judge did not consider the possibility that the same mechanism accounted for the weakness of each identification. Each of the witnesses’ confident identifications might have been mistaken because each of them unintentionally “filled-in” details of a person familiar to them when looking at a fuzzy image of someone in fact unknown. Independent flawed identification evidence from three witnesses is no more persuasive than if from one.”

While there are subtle differences in the law  of evidence and eye witness identification; and as the reader may observe, the law is constantly changing to adapt to technological advances. The result in this case might have been different had the quality of the video feed been of suitable quality.

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Proper legal advice ought to be sought at the onset of these charges to permit an professional review the details and the facts of each case to determine how they square with the prevailing law at the time. The principles in this case may change from time to time and this Blog post should not be relied on as a complete and fulsome survey of the law.    The procedural and legal issues involved with the assessment of ID evidence often fluctuates in subtle ways as the law in this area evolves.

It is important to seek legal advice on what the Crown is permitted to enter into evidence and what must be opposed.  Such strategic  decisions may be critical to the outcome of your case.

Call J.S. Patel, Criminal Lawyer in Calgary or Toronto at 403-585-1960 or 1-888-695-2211 or via email at jpatel@defence-law.com

 

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Planning and Deliberation for First Degree Murder and the Use of Bad Character Evidence in a Criminal Trial. Regina v. Robinson, 2017 ONCA 645

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Planning and deliberation are critical elements of an offence of First Degree Murder. Post offense conduct can be used as a yard stick to either support or negative an inference of planning and deliberation.  This was considered in  Regina v. Robinson, 2017 ONCA 645 . The Ontario Court of Appeal described the facts of that case in the following terms.

  The Facts  

Mr. Robison, the appellant, and Amy Gilbert lived together in an apartment in Woodstock, Ontario.  Both were alcoholics and suffered from significant mental illness.  They loved each other, but their relationship was a turbulent one.  They often argued and the appellant had abused Ms. Gilbert, including an assault that led to his conviction in 2007.

 

Mr. Robinson, the appellant, and Ms. Gilbert drank together almost every day.  On September 27, 2008, the appellant arrived home from work around 5:00 p.m.  Following their usual practice, the appellant and Ms. Gilbert started drinking beer.

 

The deceased, Mr. Clifford Fair, showed up unexpectedly at the apartment around 9:00 p.m.  He was a casual friend of Ms. Gilbert and he knew the appellant.  The appellant believed that Mr. Fair and Ms. Gilbert had a sexual relationship before he and Ms. Gilbert became a couple.  Mr. Fair, who appeared to have been drinking when he arrived, was also an alcoholic.  The three drank beer together for an hour or two.  According to the appellant, he had consumed six beers before Mr. Fair arrived, and had another six with Mr. Fair.  The appellant was also taking anti-depressant medication.  Mr. Fair had five or six beers after he arrived. At first, everyone got along.  However, as the evening wore on, the tone changed.  The appellant became concerned that Mr. Fair was drinking a great deal of the beer that he and Ms. Gilbert had intended would last the evening.  Mr. Fair began making demeaning comments about the appellant’s size and his job.  The appellant also sensed that Ms. Gilbert was becoming angry with Mr. Fair.  He apparently owed her some money.  Ms. Gilbert recalled asking Mr. Fair about a $20 debt, but denied that she was ever angry with him.  Mr. Robinson testified that he eventually decided Mr. Fair should leave.  He worried that Ms. Gilbert would start a fight with Mr. Fair over the debt and that both would become violent.  The appellant suggested to Mr. Fair that he should leave so that the appellant and Ms. Gilbert could be alone together.  He also told Mr. Fair that he wanted to go to bed as he had to go to work the next day.

 

Finally, the appellant told Mr. Fair that he must leave the apartment when he finished the beer he was drinking.  Mr. Fair, who was much bigger than the appellant, dismissed the appellant’s comments, indicating they were having a party.

 

Ms. Gilbert recalled conversations about the jobs of the appellant and Mr. Fair.  On her recollection, everyone was laughing and enjoying themselves, although the appellant was acting a little jealously.  Ms. Gilbert recalled that the appellant got up and left the room.  She thought he was going to the washroom.

 

The appellant testified that he decided he had to do something to get Mr. Fair out of the apartment.  He went to the furnace room looking for something he could use as a weapon to confront Mr. Fair with and force him to leave.  As the appellant put it, he was looking for something to help him “shoo” Mr. Fair from the apartment.  The appellant did not think Mr. Fair would go voluntarily and he knew that he would not do well in a physical confrontation with Mr. Fair.  He had seen Mr. Fair fight on a previous occasion.

 

The appellant found a hollow aluminum pipe, about 16 inches long, in the furnace room.  He wrapped a towel around one end of the pipe and secured the towel with duct tape.

 

As the appellant was looking for the duct tape to put around the towel, he noticed Mr. Fair’s partially opened backpack on the floor.  The appellant looked into the backpack and saw his camera and other property belonging to him.  The appellant quickly concluded that Mr. Fair had stolen the items and might be planning to steal more items from the appellant if the appellant became very drunk and passed out.  After the appellant saw the stolen items, he described himself as “quite a bit agitated … I was pissed off, I felt like victimized”.

 

The appellant testified that he went back into the living room armed with the aluminum pipe.  He approached Mr. Fair from behind and yelled at him.  As Mr. Fair turned around, the appellant struck him on the head with the padded end of the aluminum pipe.  According to Ms. Gilbert, the appellant walked up behind Mr. Fair, smiled at her and swung the pipe with both hands like a baseball bat, striking Mr. Fair on the head.  The appellant insisted he used only about 50 per cent of his force when he swung the pipe.

 

The appellant testified that Mr. Fair started to get up after the first blow landed and made a threatening remark to him.  The appellant swung the pipe a second time, striking Mr. Fair in the head and shoulder area, again with the padded end.  Ms. Gilbert testified that Mr. Fair started to get up after the first blow, but was immediately felled by the second.  She did not hear Mr. Fair say anything.

 

According to the appellant, Mr. Fair continued to move toward him after the second blow.  The appellant pushed Mr. Fair, who fell backward into the wall, possibly striking his head.  He then fell face first onto the floor.  Mr. Fair was unconscious and bleeding profusely from his nose and mouth.  He died within moments.

Post-Offence Conduct 

The post-offense conduct of Mr. Robsinon was considered as a relevant factor in this case.  He became very upset; checked the pulse of the deceased; stated that he had not meant to hurt him; and expressed his disbelief he could be dead. His partner, Ms. Gilbert, assisted Mr. Robinson to burying Mr. Fair’s body in his backyard. Mr. Robinson later dug up and re-buried the body on two occasions, the second time after dismembering it. The Crown expert witnesses in this case were unable to identify the medical cause of death.  They testified that there were no fatal brain injuries or skull fractures. The Crown poisted the theory there was planning and deliberation that occurred during the time the accused took to retrieve and assemble his weapon. This was rejected by the Court of Appeal.

 

The Court held that a reasonable jury could conclude the accused intended to make a pre-emptive, disabling attack, and could infer the accused intended to cause bodily harm he knew was likely to result in death and was reckless as to whether death ensued. This was sufficient to convict the accused of second degree murder.  However, this was insufficient to meet the legal burden for First Degree Murder. The Court of Appeal held that a reasonable jury could not find that Mr. Robinson had planned and deliberated upon the murder for Mr. Fair. This is because the accused’s panicked conduct immediately after striking the deceased, attested to by both the accused and his partner.  His conduct belied any inference that he had planned an attack on Mr. Fair knowing that he would probably kill Mr. Fair and that he deliberated upon his plan before executing the attack. What is more, there was no other evidence capable of supporting a finding of planning and deliberation.  The medical evidence and the timeframe of the retrieval of the weapon did not support planning and deliberation. The court entered an acquittal on first degree murder.

 

With respect to the issue of second degree murder, the Court of Appeal held that the trial judge erred in instructing the jury on the issue of Mr. Robinson’s  post-offence conduct.   The Trial Judge made the following comments in his/her isntructions:

Other evidence of post-offence conduct is the burial, the dismemberment.  You may use that evidence, together with the other evidence of the letters, to help you decide if Mr. Robinson is guilty of culpable homicide, and I’ll tell you what that is shortly…  [Emphasis added.]

  The trial judge went on to explain the inferences necessary before after-the-fact conduct could be used as evidence of guilt:

If you conclude that he actually did say what he has alleged to have said, or did do what he is alleged to have done after the offence was committed, you go on to consider the next question, whether this was because Mr. Robinson was conscious, was culpable of having committed the offence of culpable homicide, or for some other reason.  Alright, so two steps, did he actually do it, did he say it and then the second step is did he do it or say it because it’s evidence of culpability?

  The trial judge’s only reference to the definition of “culpable homicide” appears in her instructions on manslaughter.  She told the jury:

“Manslaughter is defined as culpable homicide that’s not murder.  In other words, when someone kills another person unintentionally, without the intent.  To determine John Robinson’s state of mind, what he meant to do, you should consider all of the evidence, what he did or did not do, how he did or did not do it, what he said or did not say.  You look at Mr. Robinson’s words and conduct before, at the time, and after the unlawful act that caused Mr. Fair’s death.  All of these things, and the circumstances in which they happened, may shed light on Mr. Robinson’s state of mind.  They may help you decide what he meant or didn’t mean to do.  [Emphasis added.]”

 

In this case, the conduct was only relevant to the issue of whether the accused unlawfully killed the deceased.  This means that it could not assist the jury in deciding whether the accused had the mens rea for manslaughter or murder.

While there are subtle differences in the law between the first and second degree murder are not complex, proper legal advice ought to be sought at the onset of these charges to permit an professional review the details and the facts of each case to determine how they square with the prevailing law at the time.  The procedural and legal issues involved with the assessment of evidence, such as bad character and post-offensive conduct, are complete and often fluctuates in subtle ways as the law in this area evolves. It is important to seek legal advice on what the Crown is permitted to enter into evidence and what must be opposed.

Call J.S. Patel, Criminal Lawyer in Calgary or Toronto at 403-585-1960 or 1-888-695-2211 or via email at jpatel@defence-law.com

Criminal Defence Lawyers Calgary and Toronto

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Whether a criminal defence lawyer may make an application to record to the testimony of a Crown witness, an Ontario Police officer, to further an expert spectrographic voice identification analysis to support an application to exclude all improperly obtained evidence under Section 8 of the Canadian Charter of Rights and Freedoms.

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The accused person, in Regina v. Dunstan, was convicted of multiple counts of possession for the purpose of trafficking and one count of possession of the proceeds of crime after the police discovered significant amounts of various drugs and approximately $100,000 in cash after responding to an anonymous call reporting a break-in at his house.  At trial, his learned criminal lawyers sought to have the evidence of the drugs and cash excluded on the basis that the police had staged the break-in and placed the anonymous call in order to gain access to his house illegally, in breach of his rights under s. 8 of the Charter of Rights and Freedoms to be free from an unreasonable search and seizure.  During his application, his criminal defence lawyers requested an order permitting the defence to use a high-quality microphone to record the testimony of Staff Sergeant Cyril Gillis, the police officer Mr. Dunstan alleged was the maker of the anonymous call and instigator of the break-in, for the purpose of enabling the police officer’s voice to be subjected to expert spectrographic voice identification analysis.  That application was denied by the Superior Court of Justice in Ontario.

According, defence counsel appealed that decision to the Ontario Court of Appeal on the issue of whether a Superior Court judge has the authority to make such an order. His criminal lawyers posited the following issues.  He submitted, that the Superior Court judge erred in:

(a)     determining that he lacked the authority to permit the defence to record the evidence of Staff Sergeant Gillis with a high-quality microphone in order to subject his voice to a spectrographic voice identification analysis; and,

(b)     holding that he, the appellant, had the burden of proving the illegality of the warrantless entry onto his property.

The Ontario Court of Appeal found that Section 8 Charter rights of rights of an accused should not turn on the particular level of technology utilized by the court.  Justice Blair of the Court determine that if it is permissible for an expert to listen to the court recording of a witness’s testimony for purposes of subjecting it to a voice identification comparison with another voice on another recording, it should not become impermissible to do so simply because of a difference in the quality of the recording device used to record that testimony. To the extent the giving of testimony in these circumstances may amount to the provision of a bodily sample for the purposes of forensic testing, the sample is being provided in any event: Regina v.  Dunstan, 2017 ONCA 432, at para. 63:

[63]      The rights of an accused should not turn on the particular level of technology utilized by the court, in my view. If it is permissible for an expert to listen to the court recording of a witness’s testimony for purposes of subjecting it to a voice identification comparison with another voice on another recording – as the Crown acknowledges – it should not become impermissible to do so simply because of a difference in the quality of the recording device used to record that testimony.  To the extent the giving of testimony in these circumstances may amount to the provision of a bodily sample for the purposes of forensic testing – as the Crown puts it – the sample is being provided in any event.

Based on the above, the Court of Appeal granted the appeal against Mr. Dunstan’s convictions for multiple counts of possession for the purpose of trafficking and one count of possession of the proceeds of crime; and ordered a new trial. The court ordered a new trial.  The Appeal Court also stated that as a Superior Court judge, the pre-trial application judge had the discretionary authority to permit the staff sergeant’s testimony to be recorded on a high-quality microphone pursuant to s.136(3) of the Courts of Justice Act, but, if not, then pursuant to the Superior Court’s inherent jurisdiction at paras. 77 to 82.

Finally, the Court stated that:

[86]      The initial entry involving the break-in and the York Regional Police entry are inextricably intertwined in the circumstances.  The warrantless entry could not be justified (whatever the reasonable belief of the YRP officers and the circumstances confronting them on their arrival) if it had been triggered by an unlawful ruse carried out by state actors in the first place.  The Crown does not dispute this.  To hold otherwise – as the appellant points out – would be to permit the police to Charter-proof their conduct from constitutional scrutiny by the simple expedient of having one officer trick another into making a warrantless entry, on the theory that the blamelessness of the “dupe” officer would insulate the conduct from attack.  For this reason, in my opinion, the two entries – the allegedly fake break-in and subsequent anonymous phone call, and the responding entry by the York Regional Police – are part of a single integrated chain of events that should not be considered, in silo fashion, as two independent and separate events.

This case demonstrates the necessity of using an experienced criminal defence lawyer, who follows updates in the law, to ensure that all your defences are fully canvassed to obtain optimal results.

For a free initial-30 minute consultation regarding your charges, contact J.S. Patel at 403-585-1960 or 1-888-695-2211.

 

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Section 10(b) and the Rights to Counsel and the Police Obligations to _Hold Off_

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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
What obligations are imposed on the Police to have the requisite knowledge of the law regarding their core duties under Section 10(b) of the Charter (rights to counsel) when a person changes their mind or is ambiguous about speaking to counsel without delay?  There is an implicit requirement to “Hold off” in collecting evidence and a reasonable opportunity to speak to counsel must be afforded to a detainee, if they are reasonable diligent.  If section 10(b) of the Charter has been violated, should the evidence leading to the conviction have been excluded from the trial; and an acquittal entered. 

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:

  • to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel;
  • 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
  • to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

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.