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CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Protection against self-incrimination, right to silence - Right to retain and instruct counsel without delay

Tuesday, March 21, 2017 @ 7:43 AM  

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Appeal by the accused, Hamilton, from conviction for offences related to a robbery. The accused was arrested shortly after the robbery of a Rogers Wireless store. He was placed in a police cruiser and read his rights. The accused indicated a desire to speak to duty counsel. The officer continued to question the accused. The accused's first statement gave an exculpatory explanation regarding his whereabouts just prior to the robbery. He stated he was on a bus with a woman named Sasha. At the detachment, the accused had a brief conversation with duty counsel. Approximately 90 minutes later, police interviewed the accused and advised him of his right to silence, but did not mention that any prior statement should not affect his decision to speak with police. The accused's second statement gave the same exculpatory explanation for his whereabouts. A pre-trial voir dire resulted in admission of the second statement to police. The accused testified at trial, advancing an alibi consistent with his second statement. However, the accused's testimony named his wife as the person he was with prior to the robbery, whereas his statement to police mentioned a woman named Sasha. The accused was convicted by a judge sitting with a jury. He appealed on the basis the trial judge erred in admitting the second statement to police.

HELD: Appeal allowed. The trial judge failed to consider whether the accused's second statement to police was tainted by a breach of his right to counsel in respect of the first statement by failing to consider the temporal or contextual connections between the two statements. The initial failure to cease questioning until the accused spoke with counsel breached his s. 10(b) rights. The temporal and contextual connections between the two statements supported a conclusion the second statement was tainted by the Charter breach associated with the first statement. Despite conferring with duty counsel, there was no fresh start from the previous interrogation, as police failed to give a full secondary caution and the accused noted several times during the second interview that he was repeating what he had already told police. All three of the Grant factors favoured exclusion of the accused's second statement. The curative proviso was not available to save the conviction. The conviction was quashed and a new trial was ordered.

R. v. Hamilton, [2017] O.J. No. 1062, Ontario Court of Appeal, K.N. Feldman, E.E. Gillese and S.E. Pepall JJ.A., March 2, 2017. Digest No. 3643-003