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CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Legal rights - Right to retain and instruct counsel without delay - Remedies for denial of rights

Monday, August 28, 2017 @ 12:44 PM  


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Appeal by the accused from convictions on four counts of armed robbery, four counts of forcible confinement and breaking and entering a dwelling house to commit an indictable offence. Intruders invaded a home and stole drugs and electronics. The four occupants were threatened with a gun and tied up. After his arrest and being advised of his right to counsel, the accused asked to have his girlfriend phone his lawyer. Once at the station, the accused confirmed that he had been advised of his right to counsel and that he wished to speak to a lawyer. His lawyer was contacted, but was unavailable. Hours later, without having spoken to his lawyer, the accused was interviewed. When asked if he would like to speak to legal aid or wait until the morning, the accused chose to wait. The officer then cautioned the accused. He gave both the primary caution about the right to silence and the secondary caution warning Fountain to disregard any prior influences to speak that may have come from other officers. The officer then began to question Fountain. The accused admitted that he drove the two intruders to the invasion, and that he had been at the address where he was seen on the surveillance tape with the other two suspects on the day of the invasion. On at least two occasions during the interview, the accused reiterated that he had asked to speak to his lawyer. He then spoke to legal aid and thereafter made no comments of substance before being returned to his cell. The trial judge dismissed the accused’s Charter application, finding that the evidence obtained during the accused’s interrogation was not obtained in a manner that violated his right to counsel. He found that the officer complied with his obligations under s. 10(b) of the Charter, but that the accused was not reasonably diligent in exercising his right to counsel by waiting until the following day to speak to his lawyer rather than speaking to another lawyer immediately. He found that no Prosper warning was required because the accused was not reasonably diligent and did not expressly say that he did not want to contact counsel. The trial judge also held that, if he was wrong, Fountain waived his right to counsel and the caution given to Fountain was an effective substitute for a Prosper warning. In addition, he determined that if he was wrong in his assessment of the Charter violation, he would not have excluded Fountain's statement under s. 24(2) of the Charter. Ultimately, the trial judge convicted the accused, finding that he was a party to the home invasion robbery. The accused appealed his convictions on the grounds that the trial judge erred in finding that his right to counsel was not breached after his arrest and in not excluding statements he made before speaking to a lawyer.

HELD: Appeal allowed. A Prosper warning, which was meant to ensure that detainees understood what they were giving up when they abandoned their attempt to get legal rights without delay, was required. The trial judge erred when he found there was no breach of the accused’s s. 10(b) Charter rights. Specifically, the judge erred in finding that the accused lost entitlement to a Prosper warning because he was not reasonably diligent in seeking legal advice. When the accused declined the offer to call a legal aid lawyer and chose to wait until the next day to speak to his own lawyer, he was accepting an option that the office held out. The accused had no reason to believe that he was compromising his constitutional rights by making that choice. The trial judge also erred when he held that the accused did not qualify for a Prosper warning because he did not expressly indicate that he had changed his mind about speaking to a lawyer. A Prosper warning was triggered even by an apparent change of mind, and it was apparent that the accused was no longer seeking to speak to a lawyer without delay when he chose to wait until the next day. The judge’s finding that the accused waived his right to consult counsel without delay was also in error. Without a Prosper warning having been given, there was no basis for inferring that the accused understood what he was giving up when he chose to wait until the next day. It was also an error for the trial judge to find that if a Prosper warning was required, a police caution was an adequate substitute for that warning. A proper Prosper warning required more than knowledge of the right to remain silent. The accused’s s. 10(b) rights were violated and the statements he made before consulting counsel required exclusion. The prosecution against the accused could not survive without those statements. Accordingly, the convictions were quashed and acquittals were entered.

R. v. Fountain, [2017] O.J. No. 3664, Ontario Court of Appeal, P.S. Rouleau, G.T. Trotter and D. Paciocco JJ.A., July 12, 2017. Digest No. TLD-August282017003