Constitutional law — Canadian Charter of Rights and Freedoms — Legal rights — Right to retain and instruct counsel without delay — Waiver of — Remedies for denial of rights — Specific remedies — Exclusion of evidence — Where administration of justice brought into disrepute — Accused was informed of his right to counsel when charged with one robbery offence and waived it — Police violated right to counsel because they did not restate the right once they investigated accused for multiple robberies — Inculpatory videotaped statement was inadmissible as its admission would bring administration of justice into disrepute.

Criminal law — Evidence — Admissibility — Prejudicial evidence — Confessions and statements by the accused — Voluntariness — Crown failed to prove beyond a reasonable doubt that inculpatory statement given by accused admitting to eight robberies was given voluntarily where there was evidence that a promise was made to obtain it.

Application by the accused Badwah to exclude his videotaped statement made to police — Badwah was arrested for one count of robbery — Prior to his arrival at the station he was advised of his rights — He did not want to speak to a lawyer — When Badwah arrived at the station he was led past a monitor that showed his girlfriend — He was told it was not an accident that she was there — Badwah was confronted with 11 robbery files — Badwah agreed to tell the police what he did but added that his girlfriend was not involved — He was placed in a room where he was interviewed — Interview was not recorded — Badwah claimed the police offered to release his girlfriend if he cooperated — He was subsequently placed in another room and gave the videotaped statement in which he admitted to eight robberies — Badwah felt sick to his stomach while he gave the statement since his girlfriend was being interrogated in another room — Officer claimed he did not make any promises or threats to Badwah — Right to counsel was not repeated to Badwah at the station — Badwah was charged with eight counts of robbery — HELD: Application allowed — Court was not convinced beyond a reasonable doubt that statements were given voluntarily — Badwah's right to counsel was violated — Badwah's jeopardy increased when he arrived at the station because he found he was being investigated for multiple offences — Once the investigation changed police were obligated to restate his right to counsel and could not proceed on the basis that his initial waiver of the right to counsel applied — Statement could not be admitted as it would bring the administration of justice into disrepute.

Statutes, Regulations and Rules Cited:

Canadian Charter of Rights and Freedoms, 1982, s. 10(a), s. 10(b), s. 24(2)

Criminal Code, s. 344(b)

Counsel:

Ms. C. Gzik Counsel for the Crown

Mr. L. O'Connor Counsel for Robin Badwah

¶ 1      M.H. TULLOCH J. (orally):— The accused stands charged in an eight count indictment alleging that he committed the offence of robberies contrary to s. 344(b) of the Criminal Code of Canada.

¶ 2      The alleged offences occurred on different days starting May 5th, 2002, and ending on or about July the 23rd, 2002.

¶ 3      Prior to the commencement of the trial a pretrial inquiry was conducted into the admissibility of statements alleged to have been made by Mr. Badwah. The scope of the inquiry included common law confessional concerns and examination of compliance by the police with the accused's s. 10(a) and s. 10(b) Charter rights to counsel.

¶ 4      From a procedural perspective both counsel were content to conduct a blended voir dire in which all relevant issues were addressed. Throughout I have attempted to bear in mind that in cases such as this wherein there is a contemporaneous examination of voluntariness and s. 10(a) and (b) Charter issues that it is essential that the two be decided separately in form as well as in substance.

Facts

¶ 5      The factual circumstances are as follows. The arrest of Mr. Badwah was as a result of an investigation which commenced some time in May 2002, and concluded in August 2002. His name came to the attention of the police as a result of his association with a Ms. Angela Guerra, who at the time was Mr. Badwah's girlfriend.

¶ 6      In July 2002 while at the scene of a robbery a vehicle was seen driven by a white female and registered to a business which was owned by Ms. Guerra's father. Investigation revealed that at the time in question the vehicle was being driven by Ms. Guerra. Ms. Guerra was investigated and she subsequently led the investigators to Mr. Badwah.

¶ 7      On August the 7th, 2002, Officers Frape and Vander Wier, from the Peel Police Robbery Bureau, became involved in this investigation. On that date at about 8:00 p.m. both officers attended at the front door of Mr. Badwah's residence.

¶ 8      They knocked on the door and Mr. Badwah answered. They identified themselves as police officers. They were allowed into the residence. Mr. Badwah indicated that he was washing dishes at the time and he was at home alone.

¶ 9      Officer Frape advised Mr. Badwah that his name had come up in a robbery investigation and advised him they would like him to accompany them to the station. The defendant agreed and asked to put his shoes on. Mr. Badwah complied and appeared unconcerned.

¶ 10      Mr. Badwah was not handcuffed and walked to the police car with the officers and was then placed in the rear of the unmarked police vehicle. While in the car Mr. Badwah was placed under arrest for a robbery.

¶ 11      He was told words to the effect: "Right now you're under arrest for robbery, regardless of whether you say you did it or not". The details of the robbery were not specified.

¶ 12      The officer also agreed that when arresting the accused he stated "it" in reference to the charge of robbery and not "them", which would be in reference to a series of robberies or more than one count of robbery.

¶ 13      Following the arrest in the police vehicle the accused's rights to counsel were given. Officer Frape testified and indicted that although he believed that the accused understood his rights and indicated: "Yes, I do, yes", as answer to a series of questions, he did not specifically recall the accused's exact response as he was not the note taker.

¶ 14      The accused at that time indicated that he did not wish to call a lawyer. He replied: "There is no need". The accused was then cautioned.

¶ 15      The ride to the station was mostly in silence except when Officer Frape stated: "Feel like a weight is off your shoulders?", to which the accused replied: "The last month has not been fun. Fuck, I knew this would happen". Officer Frape indicated that the silent treatment was an investigative technique used to throw the accused off balance.

¶ 16       Upon entering the station the defendant was led past a monitor showing his girlfriend, Ms. Angela Guerra. Upon seeing her he did a double take and swallowed hard. Officer Frape advised him it was not by accident that she was there.

¶ 17      Mr. Badwah then was placed in a room, after which Officer Frape advised the accused that he had eleven robbery files with him and stated: "You may not be responsible for all of them but we know you are for some of them, isn't that right, Robin?" The defendant replied: "I don't think I did eleven. I'll tell you what I did but Angela had no part of it".

¶ 18      The room in which he was placed is an interview room. The officer testified that he chose to place the accused in a room so that he could be out of sight, so that he could be away from other people. While in this room Officer Frape conducted a brief interview with the accused.

¶ 19      In this room there was no audio or video equipment set up to record this interview. The officer agreed that there were no emergencies or exigent circumstances that warranted him proceeding without recording devices. Also, Mr. Badwah's rights to counsel were not reiterated to him nor was he cautioned once the officer confronted him with the eleven robberies.

¶ 20      The room becomes an issue of contention as it is alleged by counsel for the accused that while in this room Mr. Badwah was induced to make a statement about the offences by which Officer Frape had charged him and indicated that he had given an inculpatory statement.

¶ 21      It was indicated in the evidence that the only two people that were in the room was the accused and Officer Frape. It is clear that there were no recording devices in this particular room. The accused also alleges that Officer Frape promised to release his girlfriend if he cooperates with the police.

¶ 22      The accused testified and he stated that there was no one else in the room, that he was told by the officer that his girlfriend, Angela Guerra, was in another room being asked questions about him.

¶ 23      He testified that he was told by the officer that they believed that his girlfriend was involved in the robberies with him, that if he wanted his girlfriend to get out of here you will have to cooperate with me, meaning Officer Frape.

¶ 24      He testified that he told the officer that his girlfriend was pregnant, and at that point the officer said: "How do you feel having a pregnant girlfriend in the interrogation room? You should feel sick to your stomach". Mr. Badwah said he was told that he could get her out of this if he will admit to the robberies.

¶ 25      After this two to four minute period in the room with Officer Frape Mr. Badwah was placed in another interview room in which he gave an inculpatory video tape statement admitting to eight counts of robbery. Mr. Badwah testified that while on the video tape he felt extremely broken and sick to his stomach, especially since his girlfriend was in another room being interrogated.

¶ 26      Officer Frape testified and denied making any promises, threats or inducements to Mr. Badwah while in this room. He does acknowledge, however, that by not recording that initial interview that he had in effect set up a credibility battle that needed not take place had there been audio or video tape equipment set up in the room.

Legal Analysis

¶ 27      As set out at the beginning of these reasons I am asked to determine two separate issues, namely, the voluntariness of statements made by Mr. Badwah and whether he had been afforded the protections and guarantees as provided by the Charter. I will accordingly and as I am required deal with each issue separately.

¶ 28      With respect to the issue of voluntariness, the principles that govern the issue of the voluntariness of statements made by an accused are well established. The Crown is required to prove to this court beyond a reasonable doubt that any statements made by Mr. Badwah were made voluntarily. Failure to do so, the statements will not be admitted into evidence against Mr. Badwah at his trial.

¶ 29      Several tests, albeit not an exhaustive list, have to this stage of our jurisprudence been established. I have attempted to summarize them as follows:

That is Ibrahim v. The King, [1914] A.C. 599.

¶ 30

The authority for that is Boudreau v. The King, 1949, 94 C.C.C. 1, page 88.

¶ 31

That is also from Boudreau.

¶ 32

The authority there is R. v. Patrenik (1995), 101 C.C.C. (3d) 452, Alberta Court of Appeal.

¶ 33      The underlying and controlling question is: Was the statement freely and voluntarily made by a person with an operating mind? As indicated, the Crown is legally obliged to overcome the presumption of confessional involuntariness by clear and credible evidence. The evidence must establish voluntariness beyond a reasonable doubt.

¶ 34      The defence has submitted that Mr. Badwah was subjected to improper threats and inducements while in the custody of the police authorities which resulted in the eliciting of the inculpatory statements.

¶ 35      Further, the defence has submitted that beyond the alleged threats or inducements, that the conduct of the police officers created circumstances of oppression which sapped the will of Mr. Badwah leaving him with no real option but to speak.

¶ 36      On the totality of the evidence I am not convinced beyond a reasonable doubt that the statements attributable to the accused were not the product of any threat, promise or inducements.

¶ 37      The accused testified on the voir dire. I found that he gave his evidence in a straightforward, frank, non-argumentative and credible manner.

¶ 38      The police witnesses also testified. They were professional, frank and straightforward. Some of their evidence is problematic, however, there is no explanation why there was a need to pre-interview the accused without video or audio taping equipment. There is no explanation why only one officer was in the room with the accused.

¶ 39      That two minute period I find to be crucial, especially when there is an allegation the part of the accused that there was inducements and promises made to him.

¶ 40      I must bear in mind the instructions from the case of Regina v. W.(D.), [1991] S.C.J. 26, wherein I am reminded that, one, if I believe the evidence of the accused then I must find that the Crown has not discharged her onus.

¶ 41      Two, if I do not believe the testimony of the accused but I am still left in reasonable doubt by it then I must find in favour of the accused, and

¶ 42      Three, even if I am not left in doubt by the accused I must ask myself whether on the basis of the evidence, which I do accept, am I convinced beyond a reasonable doubt that his statement was voluntary.

¶ 43      The failure of the police to tape record the initial interview or to have a second officer in the room while eliciting information from Mr. Badwah disadvantages the trier of fact in instances such as this to the extent that the court is forced to credibility findings unassisted by independent and objective evidence.

¶ 44      In addition, the accused is disadvantaged by the lack of balance in a voir dire as a result of an absence of contemporaneous note taking of his own.

¶ 45      In the instant case I am not satisfied that the officer followed force or institutional policy in proceeding as they did.

¶ 46      At the time of the interview of Mr. Badwah the Peel Police interview rooms were equipped with video capability, and such technology should have been utilized throughout the interview process. In the circumstances of this case the absence of this sensible use of technology has prevented the court from making the requisite findings of credibility and fact. I therefore find that the Crown has not proved beyond a reasonable doubt that the statement was voluntary, as such it will not be admitted into evidence.

¶ 47      Now, I must turn to the issue of the infringement or the allegations of the infringement of Mr. Badwah's s. 10(a) and s. 10(b) rights or his Charter violation.

¶ 48      The issue in this particular case, as I understand it, with respect to the Charter motion that was brought by counsel for the defence is that the jeopardy that Mr. Badwah faced after his initial arrest by the police officer in the car was increased once he got to the station when it came to the attention of the police that Mr. Badwah was being investigated for eight robberies as opposed to the one that he was charged for.

¶ 49      I find as a fact that the initial arrest was for a charge of robbery. The officer testified in his evidence that he meant that he was being investigated for a series of robberies, but there is no evidence before the court to find that there was an understanding that it was a series of robberies.

¶ 50      That finding is also reiterated by the fact that the comment was made to Mr. Badwah that whether or not he cooperates he would still be charged for "it", as opposed to "them", meant one charge.

¶ 51      There is no doubt that Mr. Badwah was given his rights to counsel while he was in the police vehicle, but there was an onus on the police officer once they entered into the investigation of more than one charge of robbery to reiterate the accused's rights. Once the jeopardy of Mr. Badwah was increased they should have restated his rights to counsel.

¶ 52      The case of Regina v. Sawatsky, [1997] O.J. No. 3561, Court of Appeal, is the defining case on this particular issue.

¶ 53      Just before I get to the analysis of that case, what is also clear in the facts of this particular case is that Mr. Badwah was charged for a robbery but the charge was not specified as to which robbery that he was charged with. So it leaves the court in a difficult situation without any kind of specification as to the time or the date of the particular offence that he was charged with. That even if he gave a statement implicating himself on one particular robbery charge, not knowing which charge it is, and then his jeopardy has subsequently increased when he is then arrested or charged with a number of other robberies. The court has no option but to deal with all of them in the same way.

¶ 54      The Ontario Court of Appeal in R. v. Sawatsky is the most recent authority dealing with an accused person's s. 10(b) Charter rights in a similar situation as this before this court.

¶ 55      In Sawatsky the accused was arrested for arson which had occurred in the City of Peterborough. In the course of an interview with the Peterborough Police following her arrest the accused made incriminating statements concerning another arson committed in the City of Kingston from seventeen months earlier.

¶ 56      The court held that the accused, although properly advised of her s. 10(b) rights by the Peterborough Police at the outset of the interview, when the police questions turned from the Peterborough fire to the Kingston fire the police were required to advise her again of her s. 10(b) rights.

¶ 57      At page seven of that particular decision Justice Doherty found that the two offences were completely different and arose out of two discreet events which occurred seventeen months apart in two different cities. The fact that both events gave rise to the same generic offence was irrelevant to the question of whether the appellant's risk of self-incrimination changed when the interview turned to the Kingston fire.

¶ 58      Now, the Crown submits that the principle in Sawatsky must be considered with the language of other decisions such as R. v. Smith, 63 C.C.C. (3d) 313, and R. v. Evans, [1991] 1 S.C.R. 869. Although she did not cite this particular case, but it is the same reasoning in R. v. Young, 73 C.C.C. (3d) 289 (O.C.A.), where it is stated that it cannot be a waiver of the right to counsel on some matter which is entirely different in character or has significantly more serious consequences. The detainee is entitled to expect that the question by the persons in authority will be with respect to the incident giving rise to the charge.

¶ 59      Accordingly, whereas in Evans the focus of the questioning changes to a different matter altogether, police are not entitled to continue their investigation on the assumption that the accused's waiver of the right to counsel is still operative.

¶ 60      The detained person must be re-chartered, to use the police expression. His right to counsel must be explained to him again in the context of this new exposure.

¶ 61      With respect, I do not accept that the principle of law stated in Sawatsky only operates where the subject of the secondary questioning, as I will call it, is in respect of a crime that is more serious with significantly more serious consequences.

¶ 62      In my opinion, Sawatsky is very clear and makes no such distinction or requirement. In my view, all that is required is that where there is a fundamental and discreet change in the purpose of the investigation as stated in Evans, the police must restate the accused's rights to counsel.

¶ 63      I find that in this particular case there was a fundamental and discreet change in the purpose of the investigation and as a result the jeopardy was increased, and as such Mr. Badwah's Charter rights were violated.

¶ 64      Now, based on my findings there needs to be a s. 24(2) analysis. If there was a breach should the evidence be excluded under s. 24(2)? My answer is, yes, if the accused can demonstrate on a balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute.

¶ 65      The factors to consider include the effect of the admission of the evidence on the fairness of the trial. Generally it is unfair to admit conscripted evidence obtained in violation of a Charter right. The statement is the sole evidence that was against the accused in this particular case, there was nothing else.

¶ 66      The seriousness of the Charter violation. The facts to be considered are, did the police already suspect the accused of other offences at the time they questioned him on the one offence? There is no evidence that they did. As a matter of fact, there is no evidence that they had anything against this accused but the fact that he was associated with his girlfriend who owned this vehicle or who was associated with the owner of the vehicle.

¶ 67      Now, the effect of exclusion of the evidence on the repute of the administration of justice. Here I have to consider the seriousness of the offence, the necessity of the evidence and so on.

¶ 68      The offence is serious, but I find that weighing the seriousness against the rights of the accused in this particular instant it would bring the administration of justice into disrepute should I admit this evidence.

¶ 69      On the issue of voluntariness I find in favour of the accused, and with respect to the Charter violation I also find in favour of the accused.

QL UPDATE:  20051025
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