R. v. G.
Ontario Court of Justice (General Division)
Brampton, Ontario
O’Connor J.
March 5, 1999.
The Charter of Rights and Freedoms gives us the right to decide if we want to say anything to a charge or whether we want to remain silent and require the Crown to prove whatever it is they are claiming against us. If the police have claimed to have gotten a statement from you in violation of this right, take heart from this decision.
Application by Gordon for exclusion of evidence pursuant to section 7 of the Canadian Charter of Rights and Freedoms on the ground that the police had obtained voice identification evidence from him in violation of his right to remain silent. At the pre-trial, an officer had approached Gordon and engaged him in conversation regarding the disclosure of documents. Gordon argued that the officer had done so purely as a pretext, so as to be able to hear the accused’s speaking voice for purposes of making a comparison with a voice on a wiretap recording. Gordon argued that he was under detention at the hearing, and that he had not been given an informed choice as to whether or not to speak with the officer.
HELD: Application allowed. The voice identification evidence was excluded. Gordon’s right to remain silent was violated by the use of the trick by the police. If Gordon had not attended the pre-trial, he could have been charged. Thus, he was compelled to be there, and was in a state of detention at the time. Although he had been given his section 10(b) Charter right to counsel when he was originally arrested, that had occurred months ago and the police were not representing that they wished to speak to Gordon or ask him questions about the offences with which he had been charged. The actions of the police were designed to lull Gordon into providing evidence against himself without realizing that he was doing so. Although the police were permitted to engage in subterfuge in investigations, here they had not ensured that Gordon’s rights were respected. The evidence was conscriptive in nature and had to be excluded under section 24(2) of the Charter.
Statutes, Regulations and Rules Cited:
Canadian Charter of Rights and Freedoms, 1982, ss. 7, 10(b), 24(1), 24(2).
Counsel:
C. Michaelson and C. Welsch, for the Crown/respondent.
Reid D. Rusonik, for the applicant.
1 O’CONNOR J.:– Barrington Gordon is charged with attempting to possess cocaine, conspiracy to possess cocaine for the purposes of trafficking and with conspiracy to import cocaine. At his trial the Crown intends to introduce numerous intercepted private communications. The Crown alleges one of the voices on the wiretaps is that of Mr. Gordon. In this application Mr. Gordon seeks to exclude evidence the Crown wishes to use to prove the identity of his voice on some of the wiretaps.
2 The issue is whether the voice identification evidence was obtained in violation of Mr. Gordon’s s. 7 Charter of Rights and Freedoms right to remain silent or in breach of any other of his Charter rights.
3 The parties have agreed the facts surrounding the obtaining of the disputed evidence are as follows:
Upon learning that he was wanted by the police on the predecessors of the charges he is facing in this trial, the Applicant by counsel, surrendered himself to the police and maintained his right to remain silent.
The Applicant has never expressly waived his right to remain silent in the face of questioning by the police…
On May 31st, 1996, the Applicant was compelled to attend a judicial pre-trial meeting in regard to the charges against him in courtroom #11 of the Brampton Provincial Division Courthouse.
The Applicant was required to be present for 2:30 pm. He was required to remain outside of the courtroom while counsel and the pre-trial judge met inside and to be ready to enter the courtroom whenever summoned to do so.
At approximately 3:30 pm on May 31st, 1996, during this time when the Applicant was compelled to remain on standby in the hallway outside of courtroom #11, RCMP Constable M. Durocher, who was accompanied by a civilian RCMP employee, Fitzroy Gilzene, approached the Applicant.
Solely as a pretext to get him to speak in front of Gilzene, Durocher asked the Applicant if certain documents his lawyer had asked for, which had been served upon the Applicant’s counsel on an earlier occasion, were clear. Gilzene claims that overhearing the conversation about the documents between Durocher and the Applicant enabled him to identify the Applicant’s voice as being that of an individual he had monitored through intercepted private communications.
The Applicant had no idea who Gilzene was and Gilzene did not introduce himself. Durocher did not introduce him either, or even refer to his presence by word or gesture.
Constable Durocher did not advise the Applicant of his rights under Section 10(b) before questioning him.
The Applicant was not provided with an opportunity to consult with counsel by Constable Durocher before questioning him.
The Applicant was not asked if he waived any right to silence…
Applicant’s Position
5 Mr. Gordon says the evidence obtained by the police in the manner described should be excluded at his trial because:
a) He should not be required to trade a Charter right (silence) in return for another right (disclosure).
b) It violates his s. 7 Charter right to remain silent…
a) The Requirement to Trade One Right for Another.
6 The applicant says the police were purporting to assist him by providing him with continuing disclosure of the case against him, pursuant to their obligations under s. 603 of the Criminal Code and R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1. He should not be required to forego another right, that of silence or to be free from a requirement to give evidence against himself, as protected by s. 7 of the Charter. An accused person should not be concerned that the exercise of one Charter right should cost him the protection of another. Mr. Rusonik described the tactic as “prosecutorial candy”. That an accused should not be required to give up or trade one right to enjoy another has been established by the courts in several cases…
b) The Right to Remain Silent
12 Mr. Gordon argues he was under detention when the police officer and monitor approached him. The purpose of their speaking to him was to obtain incriminating evidence to be used at his trial. He was unaware of this purpose and thus inadvertently gave them the evidence they required. In these circumstances, he argues, they should have cautioned him about speaking to them and provided him with his s. 10(b) rights to counsel. In failing to do so they violated his s. 7 Charter right to silence. He was deprived by their subterfuge of the right to choose to speak to the police or not. Choice, after having been given the opportunity to receive legal advice, is a fundamental component of the right to remain silent. See R. v. Hebert (1990), 57 C.C.C. (3d) 1 (S.C.C.).
13 An examination of this issue must begin with a determination of whether Mr. Gordon was detained when confronted be the police. The Crown says he was not under detention. The protection of s. 7 is triggered by and afforded only to persons under detention or arrest. He had been detained upon his arrest but then released pending trial. The detention discontinued upon his release, argues the Crown.
14 In R. v. Therens (1985), 18 C.C.C. (3d) 481 (S.C.C.), the court considered the components of detention. In R. v. Thomsen (1988), 40 C.C.C. (3d) 411 (S.C.C.) Le Dain J. summarizes the court’s earlier analysis of detention in Therens at page 417, as follows:
I venture to restate what I perceive to be the essentials of those reasons, as they appear in my judgment in Therens, as follows:
1. In its use of the word “detention”, s. 10 of the Charter is directed to a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel but might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee.
2. In addition to the case of deprivation of liberty by physical constraint, there is a detention within s. 10 of the Charter, when a police officer or other agent of the state assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel.
3. The necessary element of compulsion or coercion to constitute a detention may arise from criminal liability for refusal to comply with a demand or direction, or from a reasonable belief that one does not have a choice as to whether or not to comply.
4. Section 10 of the Charter applies to a great variety of detentions or varying duration and is not confined to those of such duration as to make the effective use of habeus corpus possible. (Italics added)
15 Here, Mr. Gordon was present in the hallway outside a courtroom while his counsel was attending a judicial pre-trial inside. He had been remanded for the hearing to that date and place by a Provincial Court judge. If he had not attended that day or walked away while waiting outside the court he could have been charged with the criminal offence of fail to appear.
16 In the words of Le Dain J. in Thomsen, supra, Mr. Gordon was there because an “… agent of the state assume[d] control over the movement of a person by a demand or direction …”. His attendance at court was not voluntary. It was mandated by an order of the state. Although he was not under the control of the police officer in the sense of the accused in Therens, supra and Thomsen, supra, his presence was governed by a form of state compulsion, as contemplated by the Supreme Court in these cases. Further, he was clearly in a situation “… in which a person may reasonably require the assistance of counsel …”. He was lead to believe the police officer was availing him of his right to disclosure. Mr. Gordon’s counsel, had he been present, could have advised him disclosure was not necessary as it had already been provided. He could also have advised him that speaking to the police, in the presence of the monitor, could result in providing evidence against his interests, which he is not obliged to do. I find Mr. Gordon was under detention on this occasion, which gave rise to his s. 10(b) Charter rights to counsel…
17 The Crown argues, even if he was under detention, Mr. Gordon had long before, at the time of his arrest, been given his s. 10(b) rights. He had consulted with and retained counsel and was therefore presumably aware of his right to remain silent. The police may continue to question or speak to an accused after he has exercised his right to counsel. He may choose to speak to them he may choose to remain silent…
19 Although Mr. Gordon had been afforded his s. 10(b) rights upon his arrest many months before this incident, the police were not representing they wished to speak to him or ask him questions about the offences. To have indicated this may well have prompted his reliance on his right to silence, about which he had no doubt been advised by his counsel. Instead they were apparently according him a right which they well knew, in the absence of his counsel or legal advice, he would not likely know was superfluous, unnecessary and part of a ruse. Their actions were duplicitous, designed to lull him into providing evidence against himself without realizing he was doing so. They were not permitting him to make an “… informed choice whether or not he will speak to the authorities”. They were employing “… tricks which would effectively deprive the suspect of this choice.” See Hebert, supra…
21 Where the accused is under a form of detention, “… the state takes control and assumes the responsibility of ensuring that the detainee’s rights are respected …” Hebert, supra, page 41. Here, the police did not ensure Mr. Gordon’s rights were respected. They effectively overrode his right to choose to either remain silent and refrain from giving evidence against himself or to speak to them. They did so by leading him to believe they were fulfilling their obligation under the Charter to give him disclosure, an obligation they knew they did not have because they had previously fulfilled it. They breached his s. 7 right to remain silent.
Section 24(2) of the Charter
22 The Crown concedes if the conduct of the authorities constituted a breach of Mr. Gordon’s Charter rights, the evidence obtained was conscriptive and should be excluded under s. 24(2) of the Charter. That is, it meets the first test under R. v. Collins (1987), 33 C.C.C. (3d) 1 in that it’s admission would render the trial unfair.
23 Thus any evidence gathered by the officer or Mr. Gilzene during their attendance on Mr. Gordon on May 31, 1996 will be excluded at the trial.