Citation: R.v. Rhyno, 2012 NSSC 357
Date: 20121015
Docket: CRH 357546
Registry: Halifax
Between:
Her Majesty the Queen
v.
Michelle Florence Rhyno and Michael Raymond Rhyno
Judge: The Honourable Justice Arthur W.D. Pickup
Heard: October 9, 2012, in Halifax, Nova Scotia (Decision on Voir Dire)
Counsel: Richard B. Miller, for the Crown
Robert Sutherland, for the defendant (Michelle Rhyno)
Brian Church, for the defendant (Michael Rhyno - Watching Brief)
By the Court:
[1] Michelle Florence Rhyno is jointly charged with Michael Raymond Rhyno with two counts of robbery contrary to s. 344 of the Criminal Code.
[2] This is a voir dire decision on the application of Michelle Florence Rhyno who alleges a breach of her s. 10(b) Charter right to instruct and retain counsel without delay. She seeks to exclude the evidence of her video statement given to police on June 5, 2011.
[3] The facts pertinent to this Charter challenge arise from a custodial interrogation that was conducted on June 5, 2011 after the accused, Michelle Rhyno was arrested for home invasion, robbery and possession of a weapon (a knife). She was interviewed that same day by Detective/Constable Fairbairn (D/Cst. Fairbairn) of the Halifax Regional Police Service and the interview was audio- video recorded.
[4] During the interview, D/Cst. Fairbarn read Ms. Rhyno a police caution and notified her of her right to consult with counsel. She indicated that she “absolutely” wanted to speak to a lawyer. After signing the police caution, D/Cst. Fairbairn asked, “is there anything you want to talk about or do you want me to get a phone first or what do you want to do?”. In response, the accused said “yeah, I’ll talk to a lawyer.”
[5] The exact exchange between the parties is found at the transcript of the video statement taken June 5, 2011
[6] At pg. 6, line 15 - 21:
Q. You understand that you can call a lawyer, right?
A. Okay. Yes, I do understand that.
Q. Yeah, okay. Do you wish to call a lawyer?
A. Yes.
Q. Yes. Okay.
A. Absolutely.
[7] Further at p. 7, line 22 - 25:
Q. Right there by the X, yeah. Sorry, pen is sticking. All right. Is there anything you want to talk about or do you want me to get a phone first or what do want to do.
[8] Immediately following this exchange, the conversation between Ms. Rhyno and D/Cst. Fairbairn continued with no further mention of a lawyer or of using the telephone. The officer talked about his role in the interrogation and about how nothing would be misconstrued because it was being recorded. He then proceeded to bring up the weapons charge, saying, “so it’s up to you whatever you want to tell me, like, you jumped all over me about the knife and you said you had no knife, that’s fair”. The accused responded to this statement and eventually said, “well, I may as well talk to you about it. You’re gonna fucking put me in cells anyway, right?” The officer verified what Ms. Rhyno wanted to do at this point. She reiterated her intention to speak. At p. 9, line 25:
A. I’ll talk to you.
[9] Following this, she made a number of inculpatory statements that the defence now seeks to exclude.
[10] Ms. Rhyno did not consult with counsel during her interview.
[11] In R. v. Luong, 2000 ABCA 301, the Alberta Court of Appeal provided a helpful summary of the issues on a 10(b) application:
12 For the assistance of trial judges charged with the onerous task of adjudicating such issues, we offer the following guidance:
1. The onus is upon the person asserting a violation of his or her Charter right to establish that the right as guaranteed by the Charter has been infringed or denied.
2. Section 10(b) imposes both informational and implementational duties on state authorities who arrest or detain a person.
3. The informational duty is 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.
4. The implementational duties are two‑fold and arise upon the detainee indicating a desire to exercise his or her right to counsel.
5. The first implementational duty is "to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances)". R. v. Bartle (1994), 92 C.C.C. (3d) 289 (S.C.C.) at 301.
6. The second implementational duty is "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)". R. v. Bartle, supra, at 301.
7. A trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with a reasonable opportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the right to counsel was provided with a reasonable opportunity to exercise the right.
8. If the trial judge concludes that the first implementation duty was breached, an infringement is made out.
9. If the trial judge is persuaded that the first implementation duty has been satisfied, only then will the trial judge consider whether the detainee, who has invoked the right to counsel, has been reasonably diligent in exercising it; the detainee has the burden of establishing that he was reasonably diligent in the exercise of his rights. R. v. Smith, (1989), 50 C.C.C. (3d) 308 (S.C.C.) at 315‑16 and 323.
10. If the detainee, who has invoked the right to counsel, is found not to have been reasonably diligent in exercising it, the implementation duties either do not arise in the first place or will be suspended. R. v. Tremblay (1987), 37 C.C.C. (3d) 565 (S.C.C.) at 568; R. v. Ross (1989), 46 C.C.C. (3d) 129 (S.C.C.) at 135; R. v. Black (1989), 50 C.C.C. (3d) 1 (S.C.C.) at 13; R. v. Smith, supra, at 314; R. v. Bartle, supra, at 301 and R. v. Prosper (1994), 92 C.C.C. (3d) 353 (S.C.C.) at 375‑381 and 400‑401. In such circumstances, no infringement is made out.
11. Once a detainee asserts his or her right to counsel and is duly diligent in exercising it, (having been afforded a reasonable opportunity to exercise it), if the detainee indicates that he or she has changed his or her mind and no longer wants legal advice, the Crown is required to prove a valid waiver of the right to counsel. In such a case, state authorities have an additional informational obligation to "tell the detainee of his or her 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" (sometimes referred to as a "Prosper warning"). R. v. Prosper, supra, at 378‑79. Absent such a warning, an infringement is made out.
[12] Section 10(b) of the Canadian Charter of Rights and Freedoms reads:
Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.
[13] In summary, the content of s. 10(b) can be broken down into two constituent parts: an informational component and implementational component. These two components impose certain duties on police officers to do the following:
1. Informational component
a. Inform the detainee that he or she may contact his or her counsel of choice; and
b. Inform the detainee of the availability of legal aid or duty counsel.
2. Implementational component
a. Provide the detainee with a reasonable opportunity to exercise his or her right to retain and instruct counsel, and facilitate contact between the detainee and counsel; and
b. Cease questioning or otherwise attempting to elicit evidence from the detainee until the detainee has consulted or been given the reasonable opportunity to do so.
[14] It is not in dispute and I am satisfied that D/Cst. Fairbairn satisfied his duty to inform Ms. Rhyno of her rights and of the availability of legal aid. However, as Ms. Rhyno clearly indicated that she wished to call a lawyer, the implemental component of s. 10(b) was triggered.
[15] It is evident from the case law provided by the parties that compliance by the police with the implementational duties arising on the right to counsel can be suspended in some circumstances:
i cases of urgency;
ii. where the detainee is not reasonably diligent in the exercise of the right to counsel; and
iii. where the detainee waives his right to counsel.
[16] In this instance there is no urgency so only the latter two circumstances are applicable.
Issues:
Did D/Cst. Fairbairn satisfy his implementational duties under s. 10(b)?
i. Did D/Cst. Fairbairn provide Ms. Rhyno with a reasonable opportunity to consult with counsel and did he assist her in contacting counsel?
ii. Was Ms. Rhyno reasonably diligent in the exercise of the right to counsel?
iii. Should D/Cst. Fairbairn have ceased attempting to elicit evidence from Ms. Rhyno upon hearing that Ms. Rhyno wanted to exercise her rights under s. 10(b).
iv. Did Ms. Rhyno waive her right to counsel?
v. If there was a violation of the accused’s s. 10(b) rights can her statement still be admitted as evidence under s. 24(2) of the Charter?
Analysis:
Did D/Cst. Fairbairn satisfy his implementational duties under s. 10(b)?
i. Did D/Cst. Fairbairn provide Ms. Rhyno with a reasonable opportunity to consult with counsel and did he assist her in contacting counsel?
[17] Once a detained person expresses a desire to retain and instruct counsel, a correlative duty to facilitate that contact falls upon the police. A detainee, however, must provide some guidance to the police in terms of who to call and how best to call. Ms. Rhyno did not expressly request access to a telephone in order to call a lawyer. After she signed the police caution statement, D/Cst. Fairbairn asked, “is there anything you want to talk about or do you want me to get a phone first or what do you want to do?”. She replied that she wanted to talk to a lawyer, but then proceeded to converse with D/Cst. Fairbairn about how police officers can often “turn things around” during interrogations. At that point D/Cst. Fairbairn explains that there is no way that he could do that since the interview room was monitored by audio and video. He reiterated once again that it was up to Ms. Rhyno and asked her what it is she wants him to do. After stating that she “may as well talk”, D/Cst. Fairbairn then told her twice that the decision was up to her. Of relevance is the transcript of the video statement, namely line 7 through 12, found at p. 9:
Q. Yeah, okay. Do you want to talk to me about ... tell me about this incident or what do you want to do?
A. Well, I may as well talk to you about it. You’re gonna fucking put me in cells anyway, right?
Q. Tell me what went on then, it’s up to you.
[18] Further at p. 9, line 22 - 25 the following exchange took place between D/Cst. Fairbairn and Ms. Rhyno:
Q. So it’s up to you. So ...
A. Yeah
Q. ... do you want to talk to me about it?
A. I’ll talk to you.
[19] The Crown submits that D/Cst. Fairbairn gave Ms. Rhyno a reasonable opportunity to consult counsel by asking her on more than one occasion if she wanted a phone and what she wanted him to do. The Crown’s submission is that once police reminded her that they could not “turn things around” she voluntarily made up her mind to co-operate with the police without speaking to counsel first.
[20] It appears that Ms. Rhyno changed her mind about contacting counsel within a very short time-frame. It appears from a reading of the transcript that only minutes had passed between being read her rights and deciding to proceed with the police interview in the absence of counsel. I am satisfied that D/Cst. Fairbairn made her rights known when he read her the police caution, and during the “conversational period” he continued to remind her that it was up to her whether she wanted to speak and what she wanted to do. I am not satisfied that the words and conduct of D/Cst. Fairbairn dissuaded Ms. Rhyno from seeking counsel, or that he acted in any improper way.
[21] While D/Cst. Fairbairn could have used more rights based language in his conversation, and advise her of her right to silence, I am not satisfied there is a positive obligation upon a police officer to continue to inform an accused of his or her rights once it can be established that the accused understands what his or her rights are.
[22] I am satisfied from a review of pp. 1 - 10 of the transcript of the video statement that Ms. Rhyno understood her rights. On cross-examination she acknowledged being detained on several prior occasions. In some instances she requested and spoke to counsel. In other instances she did not.
[23] D/Cst. Fairbairn tried on a number of occasions to find out what she wanted and she finally said she would talk to the police.
[24] R. v. Smith (1999), 44 OR (3d) 373, 134 CCC (3d) 453(CA) is a somewhat analogous case. In Smith, the accused was arrested on charges of first degree murder in the United States and was later interviewed by two members of the Toronto police. The admissibility of the accused’s statements to the Toronto police was challenged on the grounds that his s. 10(b) rights were violated; the accused invoked his right to counsel, but before he spoke to counsel he changed his mind and indicated that he just wanted to proceed with the interview. The alleged violations were framed as follows:
i. in the face of an unequivocal request for counsel, the officer did nothing to facilitate the request;
ii. reasonably viewed, the words and conduct of the police officer could have dissuaded Smith from seeking counsel; and
iii. when the appellant appeared to change his mind, the police officer failed to inform Smith that he had an obligation to hold off any further questioning if Smith wanted to contact counsel and to provide Smith with a reasonable opportunity to contact counsel.
[25] Rosenburg, J.A. speaking for the court held that there was no violation of any component of the accused’s 10(b) rights. First, he notes that the police can no longer be under a duty to facilitate contact with a lawyer once the accused changes his mind and subsequently waives his right to counsel. Second, he notes that the accused did not change his mind because of any improper conduct on the part of the police (which was a finding of fact). Third, he looked at the time period between when the accused was informed of his rights and when he changed his mind; this was a matter of seconds and, therefore, was held not to require an additional Prosper warning.
[26] In the circumstances of this case I find that there was no improper conduct on the part of the D/Cst. Fairbairn such that would lead to Ms. Rhyno changing her mind. Moreover, from the time that Ms. Rhyno was read her rights to the time she decided to speak to police was approximately two minutes long which I would characterize as a very short time period. Once Ms. Rhyno so decided, D/Cst. Fairbairn was no longer under a duty to facilitate contact with a lawyer and effectively waived her right her counsel.
[27] The onus is on the Crown to prove that the police provided Ms. Rhyno with a reasonable opportunity to contact counsel. Taking into consideration the whole of the evidence, I am satisfied that the police officer took the steps necessary to facilitate contact asking Ms. Rhyno if she wanted a phone. It was not unreasonable in the circumstances for the police officer to have not provided a phone or phone book as he was responding to Ms. Rhyno’s concerns immediately following her change of mind.
[28] Having been satisfied that D/Cst. Fairbairn satisfied the first implementational duty, the question then becomes whether Ms. Rhyno has been reasonably diligent in exercising her right to counsel.
ii. Was Ms. Rhyno reasonably diligent in the exercise of the right to counsel?
[29] If a detainee is not being reasonably diligent in the exercise of her rights, the correlative duties set out by the Supreme Court of Canada in R. v. Manninen, [1987] 1 S.C.R. 1233, imposed on the police where a detainee has requested counsel are suspended and are not a bar to continuing the investigation.
[30] The Supreme Court of Canada in R. v. Manninen, supra, discussed the scope and content of s. 10(b) and confirmed the correlative duty placed on police officers to facilitate contact between an accused and her counsel once the accused has invoked the right to counsel. At para. 21 the court noted:
21 In my view, s. 10(b) imposes at least two duties on the police in addition to the duty to inform the detainee of his rights. First, the police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay. The detainee is in the control of the police and he cannot exercise his right to counsel unless the police provide him with a reasonable opportunity to do so...
[31] The focus of the reasonable diligence inquiry is on the actions of the detainee, not those of the police.
[32] The Crown has provided R. v. Kvemshagen, [2011] A.J. No. 987 (Alta. Prov. Ct.), wherein the court provided a useful discussion on the meaning of “reasonable diligence” in the exercise of the right to counsel and the consequences to an accused who is not reasonably diligent.
[33] Relevant paras. are 46 and 63 as follows:
46 Compliance by the police with the implementational duties attendant upon the right to counsel can be suspended in some circumstances. Those circumstances include situations of urgency, cases where the detainee is not reasonably diligent in the exercise of the right to counsel and cases where the detainee waives his right to counsel. Duties that have been suspended in this fashion may also be 'reactivated' in circumstances where the limitations no longer apply.
...
63 The legal principles relating to the reasonable diligence inquiry may be summarized as follows:
1. Once police have complied with their implementational duties, it falls to the detainee to exercise reasonable diligence in contacting counsel;
2. To be diligent, a detainee must demonstrate persistence, unremitting application and perseverance in his efforts to contact counsel;
3. The reasonable diligence inquiry focusses on efforts made by the detainee to contact counsel, not on any failure by the police to question the detainee about the success or failure of his efforts, the quality of any advice given or the need for more time or other assistance;
4. Since Alberta has a 24 hour Legal Aid free legal advice system, the detainee has the burden of demonstrating that the system was inoperative at the time he was seeking to obtain free and immediate, preliminary legal advice. In the event that the system was inoperative, the amount of time accorded to the diligent detainee to contact counsel must be extended.
[34] Further in R. v. Therrien, 2006 BCSC 1739, the British Columbia Supreme Court describes the issued of “reasonable diligence” as follows:
46 The onus is also on the accused to be reasonably diligent in asserting his rights and following up with any complaints if those rights are not provided in a particular way: R. v. Smith, [1989] 2 S.C.R. 368, 61 D.L.R. (4th) 462; R. v. Richfield (2003), 175 O.A.C. 54, 178 C.C.C. (3d) 23 (Ont. C.A.).
47 What is reasonably diligent depends on the circumstances. The police are not required to read a detainee's mind. Unless a detainee communicates a specific wish, particularly when it has been offered, he has not been reasonably diligent in asserting his rights. A review of the video recordings of Mr. Therrien's dealings with the police on October 3, 2003 demonstrates that Mr. Therrien had no difficulty asserting himself. On numerous occasions he asked for what he wanted. For example, he asked Cpl. Gobeil to specify a leather bag as part of his belongings, and for permission to call his girlfriend. He also asked S/Sgt. Doran if he could go to the washroom, speak "off camera", have time alone, write his letter of confession, call his girlfriend, see "Ben," and have his shoes.
[35] D/Cst. Fairbairn asked Ms. Rhyno what she wanted him to do. He told her at one point it was up to her. She at no time asserted her right, but rather began to provide a statement.
[36] I am not satisfied on the circumstances before me that Ms. Rhyno exercised reasonable diligence.
[37] From the time she was advised of her rights until she agreed to speak with police was a very short period. She did not mention her desire to speak to counsel after D/Cst. Fairbairn told her about the room being audio/video equipped to record what transpired.
[38] It must be remembered that Ms. Rhyno on cross-examination agreed that after being detained on a number of occasions, she only spoke to legal counsel in some of those instances. I am satisfied because of her prior experience and, after reviewing the taped interview, that Ms. Rhyno was well aware of her rights but made no effort to attempt to contact counsel. I am satisfied that the police provided Ms. Rhyno with a reasonable opportunity to consult counsel, but Ms. Rhyno has not exercised due diligence in doing so.
iii. Should D/Cst. Fairbairn have ceased attempting to elicit evidence from Ms. Rhyno upon hearing that Ms. Rhyno wanted to exercise her rights under s. 10(b)?
[39] It is clear that police may continue questioning a suspect where he or she has not been reasonably diligent in contacting counsel. In R. v. Smith, [1989] 2 SCR 368 No. 89 (S.C.C.), the Supreme Court of Canada stated:
32 The police officers, in these circumstances, were justified to continue their questioning and to act as they did. This Court, in R. v. Tremblay, [1987] 2 S.C.R. 435, clearly indicated, at p. 439, that the duties imposed on the police as stated in Manninen, supra, were suspended when the arrested or detained person is not reasonably diligent in the exercise of his rights.
Generally speaking, if a detainee is not being reasonably diligent in the exercise of his rights, the correlative duties set out in this Court's decision in R. v. Manninen, [1987] 1 S.C.R. 1233, imposed on the police in a situation where a detainee has requested the assistance of counsel are suspended and are not a bar to their continuing their investigation and calling upon him to give a sample of his breath.
33 This limit on the rights of an arrested or detained person is essential because without it, it would be possible to delay needlessly and with impunity an investigation and even, in certain cases, to allow for an essential piece of evidence to be lost, destroyed or rendered impossible to obtain. The rights set out in the Charter, and in particular the right to retain and instruct counsel, are not absolute and unlimited rights. They must be exercised in a way that is reconcilable with the needs of society. An arrested or detained person cannot be permitted to hinder the work of the police by acting in a manner such that the police cannot adequately carry out their tasks.
[40] In R. v. Dupe, 2010 ONSC 6594 at paras. 24 - 25, the Ontario Superior Court of Justice provides some instruction on the duty of police officers to stop eliciting evidence from an accused:
24 But it seems clear that Lamer J. did not intend, in Manninen, to oblige the authorities to stop all questioning of the accused while he or she is given the opportunity to consult counsel. The use of the words "cease questioning or otherwise attempting to elicit evidence" to describe the requirement to hold off sheds light on the sort of questioning that is prohibited ‑ questioning intended to elicit evidence, sometimes referred to as investigative questioning. Questioning to assist the accused to exercise his rights, preserve his property, provide care for his family, or protect his health and safety or the health and safety of others, just to name the most obvious examples, are not prohibited by the language in Manninen. Nor should they be. Prohibiting such questions would not enhance the purpose of s. 10(b). An accused does not require the advice of counsel to assist him or her in determining how to answer such questions, while the best interests of not only the accused but those around him demand that they be asked. An accused only requires the advice of counsel to assist him or her in determining how to answer questions designed to elicit incriminatory evidence, or at least to elicit evidence relating to the offence under investigation.
25 My understanding of the purpose of s. 10(b) is reinforced by the view expressed by Professor Stuart in Charter Justice in Canadian Criminal Law (5th ed.), (Toronto: Carswell, 2010), at p. 360, where he looks to Bartle, supra, to say that concerns about "protect[ing] the disadvantaged from the risk of self‑incrimination" are at the core of s. 10(b), as an individual needs to be knowledgeable about how to exercise his or her legal rights. The fact that the answer to an innocuous question asked for a different purpose may prove to be useful to the Crown does not change the character of the questioning.
[41] Did D/Cst Fairbairn “elicit” evidence from Ms. Rhyno?
[42] In the 2002 case of R. v. McKenzie, 167 C.C.C. (3d) 530, 96 C.R.R. (2d) 108, the Ontario Court of Appeal considered the meaning of the term “elicit” in the context of police questioning and s. 10(b). Moldaver J.A. (as he then was) described the proper test to apply in this type of situation at para. 4:
...I am of the view that the test to be applied is one which concentrates on the interchange between the police and the detainee with a view to determining whether, in all of the circumstances, there is a causal link between the conduct of the police and the making of the statement by the detainee.
[43] Further, Moldaver J.A. looked to jurisprudence on s. 7 for guidance in the meaning of “elicitation”. He considered the Supreme Court of Canada’s decision in R. v. Broyles [1991], 3 SCR 595, [1991] SCJ No. 95 to be instructive. Broyles, supra, identifies two sets of factors that can be used to determine if information was elicited. First, the court should examine the nature of the exchange between the accused and the state agent and ask whether the relevant parts of the conversation were the functional equivalent of an interrogation. Second, the court must examine the nature of the relationship between the state agent, and the accused, and ask whether the state agent manipulated the accused to bring about a mental state in which the accused would be more likely to talk.
[44] In McKenzie, supra, the accused invoked his right to counsel and left a telephone message for his lawyer. When he was taken back to the video room the police officers revealed some of the results of the undercover operation they had conducted against the accused, including playing excerpts from the taped confession the accused had unknowingly made to an undercover officer. This prompted the accused to confess before he had an opportunity to talk to his lawyer and constituted a serious breach of s. 10(b).
[45] The facts of McKenzie, supra, can be distinguished from the case at bar in that the police officers in McKenzie, supra, presented hard evidence to the accused and used this as bait to get a confession before he could consult with counsel. In the present case, D/Cst. Fairbairn did not present any hard evidence; he did explain that the accused was under arrest for a weapons offence (knife), and the accused stated that she “never had no knife”. D/Cst. Fairbairn brought up the knife once more when he said, “so it’s up to you whatever you want to tell me, like, you jumped all over about the knife and you said you had no knife, that’s fair” which prompted Ms. Rhyno to respond with, “I think you know who had the knife”.
[46] Was there causation between the police conduct and her incriminatory statement? The defence suggests D/Cst. Fairbairn’s conduct could be considered manipulative because he steered the accused towards talking, especially by bringing up the knife and failing to explicitly remind the accused of her various Charter rights. I am not satisfied there is evidence of improper conduct. D/Cst. Fairbairn was smooth in the way he engaged in conversation with Ms. Rhyno, but this is not fatal to the analysis. He made no promises or inducements, and when he brought up the knife he brought it up as an example of what Ms. Rhyno could choose to discuss. He did not bring it up in a substantive context and she did not make a statement at this point that had the effect of being self-incriminatory. After this exchange about the knife, he again asked her what she wants to do and “it’s up to [her]” whether she wants to tell him about the incident.
[47] It is important to remember the comments of McLachlin, J. (as she then was) in R. v. Hebert, [1990] 2 S.C.R. 151, 77 CR (3d) 145, where she explained the relationship between the right to counsel and the right to remain silent at para. 29:
The state is not obliged to protect the suspect against making a statement; indeed, it is open to the state to use legitimate means of persuasion to encourage the suspect to do so. The state is, however obliged to allow the suspect to make in informed choice about whether or not he will speak to the authorities.
[48] I am satisfied that D/Cst. Fairbairn made no attempt to elicit evidence from Ms. Rhyno until such time as she indicated she wished to proceed with the interview.
[49] In these circumstances I am not satisfied that there was an obligation on D/Cst. Fairbairn to “hold off” questioning Ms. Rhyno once she indicated that she wished to proceed with the interview. Prior to that time, D/Cst. Fairbairn had, in fact, held off questioning of Ms. Rhyno.
iv. Did Ms. Rhyno waive her right to counsel?
[50] If a detainee asserts her right to counsel and is duly diligent in exercising it, the Crown is required to prove a valid waiver of her right to counsel if she has changed her mind.
[51] Having found that Ms. Rhyno was not diligent in exercising her right to counsel, it is not necessary to determine this issue. However, in the event that I am wrong in my determination that she was not diligent in exercising her right to counsel, I will go on determine whether on the facts she waived her right to counsel. For the reasons which follow I am satisfied she did.
[52] Did Ms. Rhyno make an informed choice in deciding to speak to the authorities? This requires consideration of whether she properly waived her right to counsel before giving her statement.
[53] In R. v. Prosper, [1994] 3 S.C.R. 236, [1994] S.C.J. No. 72, Lamer C.J. states that “courts must ensure that the Charter protected right to counsel is not too easily waived.” He goes on to say:
...Indeed, 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, police will be required to tell the detainee of his or her 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 additional informational requirement on police ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up.
[54] The court goes on to establish that the burden is on the Crown to prove unequivocal waiver, and that the waiver must be free, voluntary and not the product of either direct or indirect compulsion.
[55] I agree with the Crown that a Prosper warning is not required on the facts of this case, in part, because of the close time-frame between the time the accused was informed of her rights, and the time she decided to change her mind and speak. This does not, however, suggest that waiver is not an issue because Ms. Rhyno did initially indicate that she wished to speak to a lawyer.
[56] I am satisfied that the words spoken by Ms. Rhyno “well, I may as well talk to you about it” and “I’ll talk to you” are sufficient to establish an implicit waiver of her rights. The waiver appears to be free and voluntary in the sense that Ms. Rhyno brought it up on her own. While D/Cst. Fairbairn gave her the choice of what to do, that is, call her lawyer or speak, he did not tell her that she had an obligation to talk (in fact, he told her the opposite during the police caution). I am not satisfied that there was any compulsion by D/Cst. Fairbairn as he did not make any promises or inducements, and did not respond to her comment about going into the cells. He said he was going to look at the totality of the evidence and he left the ultimate decision to her.
v. If there was a violation of the accused’s 10(b) rights, can her statement be still be admitted as evidence under s. 24(2) of the Charter?
[57] If I am wrong in my determination and there is, in fact, a violation of Ms. Rhyno’s Charter rights, I will go on to determine whether her statement can still be admitted despite the breach.
[58] For the reasons which follow, I would admit her statement as evidence under s. 24(2) of the Charter.
[59] The Supreme Court of Canada lays out the applicable test for s. 24(2) in R. v. Grant, 2009 S.C.C. 32 at para. 71:
When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter‑infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter‑protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute...
Seriousness of the Charter-infringing state conduct
[60] In Grant, supra, the court notes that state conduct can range from violations that are inadvertent or minor to violations that are in wilful or reckless disregard of the Charter. In Grant the court said in para. 72:
72 The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.
[61] The court continues in paras. 73 and 74:
73 This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led to the breach. The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter.
74 State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.
[62] In the present case, the defence describes D/Cst. Fairbairn’s conduct as “wilful or reckless” and “not inadvertent or minor”. They say there were no extenuating circumstances that would justify proceeding in violation of s. 10(b). Further, the defence suggests that D/Cst. Fairbairn was not acting in good faith, perhaps because he did not facilitate Ms. Rhyno’s original request to talk to counsel, or perhaps because he may have manipulated Ms. Rhyno into speaking immediately without the benefit of counsel.
[63] I am not satisfied that defence counsel’s description of D/Cst. Fairbairn’s actions are warranted. The key exchange between he and Ms. Rhyno lasted less than two minutes. There was no trickery or pressure applied. The officer kept reiterating that Ms. Rhyno had the choice to speak or not .
[64] I am satisfied that D/Cst. Fairbairn did not manipulate Ms. Rhyno into speaking. She did not seem extraordinarily reluctant to speak, nor did she continue to reassert her desire to speak to counsel. D/Cst. Fairbairn’s behaviour was not malicious and he did not tell Ms. Rhyno that she was under some sort of obligation to speak. He explained her rights to her and asked her if she wanted to use a phone.
Impact on the Charter protected interests of the accused:
[65] Under this head, the court must determine which interests were engaged by the infringement and the extent to which those interests were breached. In the case of a statement to authorities obtained in breach of the Charter, several rights are engaged: the right to counsel, the right to silence and the right to protect against self-incrimination.
[66] In Grant, supra, the Supreme Court of Canada said in paras. 76 and 77:
76 This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter‑protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high‑sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.
77 To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. For example, the interests engaged in the case of a statement to the authorities obtained in breach of the Charter include the s. 7 right to silence, or to choose whether or not to speak to authorities (Hebert) ‑ all stemming from the principle against self‑incrimination: R. v. White, [1999] 2 S.C.R. 417, at para. 44. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.
[67] Defence counsel submits that the right to counsel is part and parcel of a much bigger right against self-incrimination, and together these two rights form the cornerstone of the criminal law.
[68] In this case, Ms. Rhyno did give a statement that was self-incriminating and had the effect of implicating her, at least as a party, in the home invasion and robbery. If found guilty on such charges because of her statement, her greater liberty interests would also be engaged which leads to the conclusion that the impact on her Charter protected interests was quite high.
Adjudication on the Merits:
[69] The third factor is society’s interest in an adjudication on the merits. In Grant, supra, the Supreme Court of Canada said in para. 79:
79 Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth‑seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society's "collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law": R. v. Askov, [1990] 2 S.C.R. 1199, at pp. 1219‑20. Thus the Court suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence
[70] The court must consider whether the truth-seeking function is better served by excluding the evidence or admitting it. The court must consider the effect of both. The Supreme Court also said in para. 80 of Grant, supra:
80 The concern for truth‑seeking is only one of the considerations under a s. 24(2) application. The view that reliable evidence is admissible regardless of how it was obtained (see R. v. Wray, [1971] S.C.R. 272) is inconsistent with the Charter's affirmation of rights. More specifically, it is inconsistent with the wording of s. 24(2), which mandates a broad inquiry into all the circumstances, not just the reliability of the evidence.
[71] The defence concedes that Grant, supra, made it more flexible for the Crown to seek the admission of certain types of evidence obtained by Charter violation. When considering society’s interest the court often looks to the truth-seeking value of the trial and, a statement when voluntariness is not contested, normally has some reliability to it. But the defence says that this must be balanced with society’s interest in the integrity of the justice system, which will be at stake if the police can get away with not honouring the expression of a desire to contact counsel.
[72] In this case, it is difficult to determine the reliability of the statement. Indeed, this is not physical evidence, but is instead one perspective on the offence that may or may not be truthful. But it does appear that the prosecution has additional evidence, such as eyewitness accounts, to connect the accused to the offence other than her statement to the police.
[73] These factors must be balanced to determine whether admission of the statement would bring the administration of justice into disrepute. On balance I conclude that to admit the evidence would not erode society’s confidence in the justice system. If there was a breach it was minor as the conduct of the police officer was not wilful or reckless as the defence suggests. While the impact on Ms. Rhyno’s Charter protected interests was high, I am satisfied that the truth-seeking function is better served by admitting this evidence. I would, therefore, admit the evidence pursuant to s. 24(2) of the Charter.
Pickup, J.