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EVIDENCE - Admissibility - Prejudicial evidence - Confessions and statements by the accused

Thursday, April 15, 2021 @ 6:32 AM  

Lexis Advance® Quicklaw®
Application by the accused, charged with sexual assault, to exclude his statement to police. The accused unexpectedly appeared at a police station. He was arrested for sexual assault and advised of his right to counsel. The interviewing officer told the accused he could not call his father to obtain a lawyer’s name. She offered the accused a phone book or Legal Aid. The accused spoke with duty counsel. He told the officer duty counsel advised him not to speak. The officer indicated the interview was his chance to provide his side of the story. She then left the accused alone in the interview room for over two hours before obtaining a video recorded statement from him. In response to several questions, the accused indicated he was unsure of what to say, and questioned whether he should wait for counsel, because of the advice he had received. The officer told the accused lawyers only told guilty people not to talk.

HELD: Application allowed. The accused was denied the opportunity to select counsel of his choice when the officer refused to allow him to call his father. The officer further breached the accused’s s. 10(b) Canadian Charter of Rights and Freedoms (Charter) rights when she encouraged him to disregard counsel’s advice rather than offering him another opportunity to speak with counsel to clarify the advice he received. The Charter-infringing conduct was serious as was its impact on the accused’s Charter-protected rights. Admission of the statement would bring the administration of justice into disrepute. Given the lack of criminal justice system experience by the accused, the undermining of counsel’s advice and the failure to offer him further contact with counsel when it was obvious he was confused about the advice given, there was a reasonable doubt as to the voluntariness of the statement.

R. v. Soriano, [2021] M.J. No. 58, Manitoba Provincial Court, H.R. Pullan Prov. Ct. J., February 17, 2021. Digest No. TLD-April122021008