



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Richards, 2017 ONCA 424

DATE: 20170525

DOCKET: C59006

Watt, Lauwers and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Theodore Wellington Richards

Appellant

Carlos Rippell and Marianne Salih, for the appellant

Jeremy Streeter, for the respondent

Heard: October 17, 2016

On appeal from the conviction entered on May 7, 2014 by
    Justice Norman S. Douglas of the Ontario Court of Justice.

Watt J.A.:

[1]

Sometimes, houses get a
    reputation. And it is not always good. Take, for example, 34 Verney Street in
    Guelph. Drugs available. There and delivered elsewhere. At least according to
    confidential informants.

[2]

Police surveillance over three
    days in July 2012 disclosed activity consistent with traffic in drugs. Short
    visits to the house. Short visits by an occupant to other houses. And an
    apparent hand-to-hand transaction on a front porch.

[3]

Theodore Richards lived at 34
    Verney Street. So did his daughter. And two of his sons. Each had their own
    room.

[4]

The police wanted to search 34
    Verney Street for drugs and drug paraphernalia. They got a telewarrant to
    authorize their search. Then they arrested Theodore Richards at a local
    convenience store. He said he wanted to talk to a lawyer.  A specific lawyer.
    But the police had other ideas. They wanted to search 34 Verney Street before
    allowing Theodore Richards to speak to his lawyer of choice. And that is what
    they did.

[5]

Before Theodore Richards was
    allowed to speak to his lawyer of choice, a police officer spoke with him about
    the offences with which Richards was charged. Their conversation was not
    recorded. The officer made no notes.

[6]

After Theodore Richards spoke to
    his lawyer of choice, then another lawyer, another officer interviewed him
    about the offences charged. This interview was audio and video recorded.

[7]

Theodore Richards was charged
    jointly with his sons with possession of marijuana for the purpose of
    trafficking, and production of marijuana. He was charged alone with possession
    of cannabis resin for the purpose of trafficking.

[8]

After a joint trial in the Ontario
    Court of Justice, Theodore Richards, who was self-represented, was found guilty
    of possession of marijuana for the purpose of trafficking and of possession of
    cannabis resin. He was found not guilty of production of marijuana.

[9]

Theodore Richards appeals his
    convictions. He says that his trial was unfair; that the trial judge wrongly
    admitted his video recorded police interview; and failed to conduct an inquiry
    into a breach of his right to counsel under s. 10(b) of the
Charter
.

[10]

As I will explain, I would allow
    the appeal, set aside the convictions entered at trial and order a new trial.

THE BACKGROUND FACTS

[11]

Some additional background, much of it procedural, will provide the
    setting essential to an understanding of the grounds of appeal advanced.

The Confidential Informants

[12]

Police received information from confidential informants that drugs were
    being sold out of the house at 34 Verney Street in Guelph. The materials filed
    on the appeal do not contain the information to obtain (ITO), the telewarrant
    or any further details about the substance of the information provided or the
    reliability of the informants.

The Surveillance of 34 Verney

[13]

The police conducted physical surveillance of 34 Verney and Theodore
    Richards vehicle over a three-day period in July 2012, shortly before seeking
    a warrant to search the premises. Among other things, they saw:

·

Theodore Richards make brief visits to several other residences;

·

several persons make brief visits to 34 Verney; and

·

an apparent hand-to-hand sale or transfer from Richards to a
    woman on the porch of a house.

The Search Warrant

[14]

A police officer prepared an ITO for submission to a justice of the
    peace to obtain a warrant to search the house at 34 Verney. When the officer
    attended at the courthouse in Guelph, no justice of the peace was available to
    decide whether a warrant should issue. The officer then submitted the ITO to
    the telewarrant centre for consideration. The warrant was issued for execution
    on July 19, 2012.

The Arrest of Theodore Richards

[15]

An officer arrested Theodore Richards shortly after 3:00 p.m. on July
    19, 2012. He cautioned Richards, advising him of his right to say nothing and
    of the consequences of his choosing to speak. The officer then informed
    Richards of his right to counsel. Richards said that he would like to call a
    lawyer. The officer did not facilitate a call at the place of arrest (a local
    convenience store), but told Richards that he could make the call when they
    arrived at the police station.

The Search Incident to Arrest

[16]

The arresting officer searched Theodore Richards incident to the arrest
    before putting him in the back seat of a police cruiser. During the search, the
    officer found some marijuana and a wad of Canadian currency.

The Police Station

[17]

The arresting officer turned Theodore Richards over to another officer
    at the police station. The second officer repeated the right to counsel advice
    to Richards, who repeated his request to speak to a lawyer. However, this time,
    Richards identified a specific lawyer to whom he wished to speak.

[18]

Concerned that other officers had not yet begun to execute the search
    warrant, the officer declined to facilitate Richards request to speak to the
    lawyer of his choice. Instead, the officer offered to call Duty Counsel on
    Richards behalf. Richards declined the offer of Duty Counsel and reiterated
    his request to speak to his counsel of choice.

[19]

The officer and Theodore Richards remained in each others company for
    about thirty minutes. Nothing that may have been said by one to the other was
    recorded. The officer made no notes of any conversation that may have occurred.

[20]

In cross-examination of the officer, Theodore Richards suggested that he
    (Richards) told the officer where everything could be found in the house. He
    did so because he did not want the house destroyed during the search or his
    sons and daughter charged. The officer could not recall the suggested
    conversation, but acknowledged that it could have occurred.

The Video Statement

[21]

Execution of the search warrant began at 4:39 p.m. on July 19, 2012,
    about one and one-half hours after Theodore Richards arrest. Police seized
    drugs and drug paraphernalia from the residence. About ten minutes later, the
    officer permitted Richards to call his counsel of choice. The call was brief.
    Counsel of choice could not provide advice due to a conflict of interest.
    Richards then had another, equally brief, conversation with a second lawyer.

[22]

A couple of hours after the telephone calls to the lawyers, another
    officer began an interview of Theodore Richards. This interview was audio and
    video recorded and monitored by a second officer. The Crown tendered it for
    admission at trial.

The Evidentiary Issues at Trial

[23]

Theodore Richards was jointly tried with his sons, William Richards and
    Wayne Church. Theodore Richards and William Richards were self-represented.
    Wayne Church had counsel appearing on his behalf.

[24]

Counsel for Wayne Church sought leave to cross-examine the author of the
    ITO on the basis of which the telewarrant was issued. The trial judge dismissed
    the application.

[25]

The Crown tendered the video interviews of Theodore Richards and William
    Richards as evidence. On the
voir dire
to determine voluntariness,
    Theodore Richards testified as the only defence witness. The trial judge was
    satisfied that both statements were voluntary and admitted them as evidence on
    the trial.

[26]

No one suggested at trial that a
voir dire
should be conducted
    to determine whether the video statement of Theodore Richards should be
    excluded as evidence because it had been obtained in a manner that infringed
    his rights under s. 10(b) of the
Charter
.

THE GROUNDS OF APPEAL

[27]

Theodore Richards (the appellant) advances three grounds of appeal
    against conviction. As I would paraphrase them, they are:

i.

that the conduct of the trial judge gave rise to a reasonable
    apprehension of bias, thus the trial was unfair and constituted a miscarriage
    of justice;

ii.

that the trial judge erred in concluding that the videotaped interview
    was voluntary and thus admissible as evidence at trial; and

iii.

that the trial judge erred in failing to embark upon an admissibility
    inquiry when the uncontradicted evidence at trial revealed an infringement of
    the implementation component of the appellants right to counsel under s. 10(b)
    of the
Charter
.


Ground #1: Reasonable Apprehension of Bias

[28]

The evidentiary basis of this claim rests on a portion of the trial
    judges reasons for sentence in another completely unrelated proceeding that
    took place when the appellant was in court waiting for his trial to begin. To
    situate this claim in its proper setting, it is helpful to begin with the trial
    judges remarks and then describe what use the appellant, who was then
    self-represented, sought to make of them at trial.

The Remarks of the Trial Judge

[29]

While the appellant was in the courtroom waiting for his trial to begin,
    the trial judge gave oral reasons for sentence in an unrelated case. The
    accused in that case had been convicted of an offence involving a breach of
    trust that had apparently taken place over an extended time. She advanced an
    addiction to gambling as the basis for her behaviour that was otherwise out of
    character. The trial judge began his reasons for sentence in this way:

This accused has, from the material in front of me and from
    listening to her counsel, an addiction. Her addiction is to gambling. I say is,
    not was, because every addict knows that it is a lifelong battle, a day at a
    time, until the end of your life to beat an addiction. Like every addict,
    whether it be drugs, or alcohol, or whatever it is; every addict that I have
    ever met and I have met thousands, and thousands and thousands of them; are
    liars, cheaters, and thieves, every one. That is what their life is all about.
    They have a mask that they wear for some people, but down deep they know that
    in order to wear that mask they have to lie and they have to cheat and they
    have to steal, and that is exactly what she has done for many years.

The Recusal Motions

[30]

Twice during the trial, the appellant made submissions about the impact
    of these remarks on the fairness of his trial.

[31]

The appellant said nothing about these remarks until after the trial
    judge had ruled that the video interviews, in which he and William participated
    after their arrests, were voluntary and thus admissible in proof of guilt. He
    invited the trial judge to recuse himself because of his earlier remarks:

When I heard that in the courtroom, Your Honour, I felt I
    didnt wanna come in front of you no more, okay? I felt if you know thousands
    and thousands of people, and theyre all liars and thieves, there must be
    hundreds of thousands and millions all throughout North America, and I didnt
    figure I was going to fair  get a fair trial from this court because of it.

I never said anything until now because I honestly thought that
    this would be thrown out.

[32]

While the trial judge addressed the other issues raised by the appellant,
    he made no formal ruling on the recusal motion. Rather, he simply continued
    with the trial.

[33]

The appellant repeated his reference to the earlier sentencing
    proceedings in his final submissions:

I spoke with you yesterday, and I talked about what was said in
    court by you with regards to another  another individual. The Crown was that
    girls lawyer, okay, and that girl got 90 days from you, and whether  whether
    you didnt mean it to come out the way you said that day, he said,

I, I  I have seen alcoholics and drug addicts, and each
    and every one of them, all of them, are liars, thieves.

I know people in this town that are  smoke a joint, but that
    doesnt mean theyre a liar, or a thief because they smoke joints every day, or
    a cheater.

You know, so I didnt want to come in front of this court
    because I felt that everything that I have done to this point, and the reason
    why were here was twisted around  by this  it didnt matter what  if I said
    it was black, it was white, you know. Like even today, again, you know, thats
    how I feel, whether  all aside, Im guilty of what Ive done.

He then added:

I just feel that everybody else involved should step up to the
    plate and take responsibility for their actions, okay. Thats all I have to
    say, Your Honour.

[34]

After oral argument had concluded, the trial judge adjourned
    proceedings. Later the same day, the judge gave oral reasons convicting the
    appellant of possession of marijuana for the purpose of trafficking and
    possession of cannabis resin. He acquitted the appellant of production of
    marijuana.

The Arguments on Appeal

[35]

The appellant acknowledges that our analysis must begin from a
    presumption of integrity of judicial decision-makers, a presumption that the
    appellant accepts he must discharge by the introduction of cogent evidence. To
    do so, he says, he does not have to establish actual bias. A reasonable
    apprehension of bias will suffice. This standard includes two objective
    elements. The person who considers the alleged bias must be reasonable. And the
    apprehension of bias must also be reasonable.

[36]

The appellant submits that the trial judges comments in the earlier
    sentencing proceedings constitute cogent evidence to rebut the presumption of
    integrity and to establish a reasonable apprehension of bias. The comments
    amount to stereotyping of addicts, whatever their addiction, as liars, cheats
    and thieves. Although there is no direct evidence that the appellant was an
    addict, there is evidence that he was a long-time and current drug user who had
    previously been addicted to cocaine. Thus, he was a member of the liars, cheats
    and thieves group described by the trial judge.

[37]

According to the appellant, this reasonable apprehension of bias
    resulted in a loss of jurisdiction that requires a new trial, irrespective of
    the correctness of the trial judges ultimate determination.

[38]

Like the appellant, the respondent invokes the presumption of integrity
    as the starting point for our analysis. He emphasizes that rebuttal can only be
    accomplished by
cogent
evidence. And it is there, the respondent says,
    where the appellants claim fails.

[39]

The respondent points out that the sole evidentiary support for the
    appellants claim comes from remarks made by the trial judge in sentencing a
    convicted offender in entirely unrelated proceedings. We have no information
    about the circumstances which gave rise to the comment. Nor is there any
    evidence that links the comment to the appellants case or his circumstances.

[40]

An allegation of bias, whether actual or reasonably apprehended, demands
    a case-specific inquiry. It cannot be transposed from a single instance in an
    unrelated case to an entirely different set of circumstances. The appellant can
    point to nothing that the trial judge said or did at his (the appellants)
    trial that could fund a claim of bias. The appellant did not testify at trial.
    The trial judges rejection of the appellants evidence on the voluntariness
voir
    dire
was not rooted in stereotypical attitudes. Indeed, credibility was
    not seriously an issue on the
voir dire
. The trial judge considered
    all the circumstances and found no evidence that raised a reasonable doubt
    about the voluntariness of the statement.

[41]

Finally, the respondent contends that the timing of the appellants
    complaint of bias is telling. The appellant did not raise his concerns until
    after his videotaped statement was admitted into evidence. The timing suggests
    the recusal request was nothing more than a veiled attempt by the appellant to try
    his luck in front of another judge on another occasion.

The Governing Principles

[42]

No serious dispute arises about the principles that control our decision
    in this case. A brief reminder will suffice.

[43]

First, there is a presumption of judicial integrity, that is to say,
    that judges will carry out their oath of office:
R. v. S. (R.D.)
, [1997]
    3 S.C.R. 484, at para. 117. This presumption is one of the fundamental reasons
    why the threshold for a successful allegation of actual or apprehended judicial
    bias is high:
S. (R.D.)
, at para. 117.

[44]

Second, this presumption of judicial integrity does
not
relieve
    a judge from their sworn duty to be impartial:
S. (R.D.)
, at para.
    117.

[45]

Third, although the threshold for a successful claim of actual or
    apprehended bias is high, it is not insurmountable. The presumption of judicial
    integrity can be displaced by cogent evidence that demonstrates that something
    the judge did or said gives rise to a reasonable apprehension of bias:
S. (R.D.)
,
    at para. 117.

[46]

Fourth, in accordance with general principle, the onus of rebutting the
    presumption of integrity, or put another way, of demonstrating bias, rests upon
    the party who alleges it, in this case, the appellant:
S. (R.D.)
, at
    para. 114.

[47]

Fifth, allegations of reasonable apprehension of bias, thus inquiries
    into whether such a claim has been made out, are entirely fact-specific. It
    follows that it is simply not possible to examine another case and conclude
    that the determination of the presence or absence of bias in that case must
    apply to and control the disposition of the case under consideration:
S. (R.D.)
,
    at para. 136.

[48]

Sixth, the apprehension of bias must be a reasonable one, held by
    reasonable and right-minded persons, applying themselves to the question and
    obtaining the required information about it. The test is What would an
    informed person, viewing the matter realistically and practically  and having
    thought the matter through  conclude:
Committee for Justice and Liberty
    v. National Energy Board
, [1978] 1 S.C.R. 369, at p. 394.

[49]

Inherent in this test is a two-fold objective element. The person
    considering the alleged bias must be reasonable. And the apprehension of bias
    must also be reasonable in all the circumstances of the case. The reasonable
    person must be informed, impressed with the knowledge of all the circumstances,
    including the traditions of integrity and impartiality that form a part of the
    background and cognizant of the fact that impartiality is one of the duties
    judges swear to uphold:
S. (R.D.)
, at para. 111.

[50]

Finally, stereotypical reasoning may give rise to a reasonable
    apprehension of bias:
S. (R.D.)
, at para. 6, Major J. dissenting.

The Principles Applied

[51]

For several reasons, I would not give effect to this ground of appeal.

[52]

To assess the merits of the appellants claim that the trial proceedings
    were fatally flawed by a reasonable apprehension of bias, it is essential to
    begin with a firm understanding of the nature of bias and the standard the
    appellant must meet in order to succeed on this ground.

[53]

Bias denotes a state of mind, one that is in some way predisposed to a
    particular result, or that is closed with regard to a particular issue or
    issues. Bias represents a predisposition to decide an issue or cause in a
    certain way which does not leave the judicial mind perfectly open to
    conviction.

[54]

The apprehension of bias must be reasonable in two respects. The person
    considering the alleged bias must be reasonable. The apprehension of bias
    itself must be reasonable in the circumstances of the case. The reasonable
    person is an informed person, with knowledge of all relevant circumstances including,
    but not limited to, the traditions of integrity and impartiality that form a
    part of the background and apprised also of the fact that impartiality is a
    duty judges swear to uphold.

[55]

Second, the onus imposed on an appellant to defeat the well-established
    presumption of impartiality is significant. What is required is
cogent
evidence that something said or done, or for that matter, left unsaid or undone
    in the proceedings, gives rise to a reasonable apprehension of bias.

[56]

In this case, the appellant can point to nothing in the trial
    proceedings themselves to fund his claim of reasonably apprehended bias.
    Nothing said. Nothing done. Instead, he relies on comments made in sentencing
    an offender convicted of an offence involving a breach of trust as revealing a
    stereotypical attitude that foredoomed the appellants fair trial. While I do
    not gainsay that in some instances judicial comments in prior unrelated
    proceedings may be of service in subsequent cases, those comments cannot be
    shorn of their context and pressed into service to supply an essential
    ingredient not apparent in the impugned proceedings themselves.

[57]

Third, the characterization invoked as evidencing bias related to the
    honesty of those addicted. The appellant did not testify at trial, thus any
    stereotypical characterization of addicts as dishonest, thus testimonially
    unreliable, played no part in the trial judges conclusion that the evidence
    established the appellants guilt. Nor did the trial judges decision on the
    voluntariness
voir dire
turn on the testimonial unreliability of the
    appellant. Rather, the trial judge simply concluded, from the evidence taken as
    whole, that the appellant spoke to investigators for his own purposes, namely,
    to accept responsibility so that his children would not be charged.

[58]

Fourth, claims of actual or apprehended bias are case and fact-specific.
    They require a thorough canvass of the proceedings in their entirety. It is
    telling that the appellant can point to nothing in the proceedings under review
    to support his claim. The earlier comments formed no part of the ruling on
    voluntariness, likewise of the finding of guilt. The impugned remarks, made in
    unrelated proceedings after guilt had already been determined, is incapable of
    demonstrating any sound basis for perceiving that any decision made at trial
    was grounded in prejudice, generalizations or stereotypical reasoning. In
    coming to this conclusion, I in no way condone the word choice employed by the
    trial judge in the unrelated proceedings. At issue here is the lack of nexus
    between the impugned remarks and the appellants trial.

[59]

Fifth, with due allowance for the fact that the appellant was
    self-represented at trial, the claim of bias was only advanced after the trial
    judge had ruled on the voluntariness, hence admissibility of the police
    utterances made by both the appellant and William Richards, about eight months
    after the remarks said to evidence bias were made.

[60]

The mere fact that the ruling was adverse to the appellant does not
    itself reflect bias, nor can the prior remarks be inserted into the ruling to
    artificially colour it with stereotypical considerations.

Ground #2: The Admissibility of the Police Interview

[61]

The second ground of appeal questions, on three discrete bases, the
    correctness of the trial judges decision to admit as voluntary the videotaped
    post-arrest interview of the appellant. The specific claims of error are these:

i.

overemphasis on the veracity of the statement as the primary determinant
    of voluntariness;

ii.

failure to intervene during the cross-examination of the appellant on
    the
voir dire
about the truthfulness of certain of his comments during
    the interview; and

iii.

misapprehension of the appellants evidence about his motivation to
    provide a statement.

[62]

A brief reference to what occurred during the
voir dire
followed
    by a short excerpt from the trial judges ruling will provide a suitable
    backdrop for the discussion that follows.

The Conduct of the
Voir Dire

[63]

The Crown tendered the video interviews of the appellant and William
    Richards as voluntary statements made to a person in authority. A single
voir
    dire
was conducted. The appellant cross-examined various police officers
    called by the Crown to prove voluntariness. William Richards, who was also
    self-represented, asked no questions. Counsel for the third co-accused, Wayne
    Church, also participated in the
voir dire
.

[64]

The appellant testified on the
voir dire
. He explained why he
    participated in the video interview, despite having been advised by counsel to
    say nothing to the police. He had already admitted to a police officer (Cst.
    Hunt) where those searching his home would find drugs and other paraphernalia
    and that those items belonged to him. He did so because he did not want the
    police destroying his home during the search, and wished any charges against
    his children dropped. He acknowledged that what he told the police was
    voluntary.

[65]

Counsel for Wayne Church cross-examined the appellant on the
voir
    dire
, securing his agreement that what he had told police about Churchs
    lack of knowledge and involvement was true. The Crown cross-examined the
    appellant on his motive for providing a statement and the fact that he had
    spoken to a lawyer before participating in the video interview.

The Ruling of the Trial Judge

[66]

The trial judge was satisfied that the video interview of the appellant
    (as well as that of William Richards) was voluntary, thus admissible at trial.
    He noted the appellants acknowledgment that what he told the police was
    truthful. The appellant was motivated by a desire to accept responsibility,
    tell the police the truth and persuade investigators not to proceed against his
    children.

[67]

In his oral reasons delivered at the conclusion of the
voir dire
,
    the trial judge made these critical findings:

Well, thats his version of it, thats his belief, but when he goes
    on to say that he told them the truth anyway, and while I am satisfied that
    there is no evidence other than his say-so that the police tricked him or
    promised him something, its obvious to me that from the get-go, from the
    get-go, as soon as they caught him, he was wanting to tell them the truth about
    what he knew. He was wanting to take responsibility for the marijuana that was
    found in his home, and he, he was the one who was most interested in persuading
    the police not to proceed with charges against anybody else, that was his
    stance from the very beginning. And so while I appreciate that he believes that
    Constable Hunt didnt tell the whole truth with regard to the conversation that
    he might have had with him, its immaterial to me on the issue of whether or
    not what he said to the police was voluntarily, and I dont believe, and I
    dont accept what he says when he says,

I wouldnt have said anything if Constable Hunt hadnt said
    to me what he said to me,

because in my understanding of the evidence, it was at his
    instance, from the very beginning, that he wanted the charges dropped against
    the other people, and so that was no inducement to him. I find, therefore, that
    his evidence is voluntary, and therefore is admissible as evidence against him

The Arguments on Appeal

[68]

The appellant says that the primary rationale underpinning the confessions
    rule is the protection of the principle against self-incrimination. The focus
    of the inquiry into admissibility is on the voluntariness of the statement, not
    its truthfulness or falsity. When, as here, the focus is on veracity, according
    to the appellant, the principle against self-incrimination is contravened in
    two ways. The misplaced focus on veracity encourages abusive police conduct in
    obtaining confessions by promoting the notion that, if the statement is true,
    it will be admitted as evidence, no matter how it was obtained. He adds that a
    focus on veracity also compels an accused who testifies on the
voir dire
to respond to incriminating questions, which has a corresponding chilling
    effect on those accused of crimes taking the stand during a
voir dire
. This
    further encourages improper police conduct.

[69]

The appellant contends that the trial judge applied the wrong test in
    determining the voluntariness of the appellants police interview. The judge
    fastened upon reliability, thus the veracity of the statement, as the primary
    consideration in the inquiry into voluntariness. The veracity of the statement
    has no bearing on the issue of voluntariness, and little relevance on the
    assessment of the appellants credibility as a witness on the
voir dire
.

[70]

In addition, the appellant continues, the trial judge made two errors
    when he failed to intervene in counsel for the co-accuseds cross-examination
    of the appellant on the
voir dire
on voluntariness. Counsel for the
    co-accused, Wayne Church, lacked standing to cross-examine the appellant on the
voir dire
. The appellants statement was not and could not become
    evidence either for or against Church. Not only did the trial judge err in
    permitting counsel for the co-accused to cross-examine the appellant on the
voir
    dire
, but the judge also used the answers to the impermissible questioning
    on veracity as the primary basis upon which to ground his finding of
    voluntariness.

[71]

The appellant also submits that the trial judge misapprehended the
    evidence of the appellant about his motivation to participate in the police
    interview. It was clear from the early stages of the police investigation that
    the appellant wanted to take responsibility for the drugs in order to get his
    children off their charges. But this desire had nothing to do with whether the
    police had in fact offered him an inducement to speak, much less whether such
    an inducement, offered before police executed the search warrant, arrested his
    children and gave the appellant the opportunity to speak to counsel, lured him
    into making the statement.

[72]

The respondent rejects any suggestion that the trial judge erred in
    ruling that the police interview of the appellant was voluntary, thus
    admissible as evidence at trial. The trial judge demonstrated his awareness of the
    legal standard of admissibility and the rationale on which it was grounded. He
    examined all the circumstances surrounding the interview and concluded, as he
    was entitled to do, that the Crown had established voluntariness beyond a
    reasonable doubt.

[73]

The respondent says that the trial judge rightly concluded that from the
    outset of the investigation, the appellant was motivated to take responsibility
    for the drugs and related items he knew the police would find in a search of
    his home. He made this decision on his own. By admitting sole responsibility,
    he hoped that the police would not charge his children. The only evidence of
    any inducement by the police was what the appellant attributed to Cst. Hunt
    before the video interview began. But the trial judge was satisfied that
    nothing Cst. Hunt may have said induced the appellant to speak when he would
    not have otherwise done so. These findings were well-grounded in the evidence
    adduced on the
voir dire
, including the appellants own testimony that
    he told Cst. Hunt as soon as he (Hunt) entered the room at the station where
    everything could be found at his home.

The Governing Principles

[74]

The confessions rule is concerned with voluntariness, broadly defined. A
    predominant reason for this concern is that involuntary confessions are
    considered more likely to be unreliable. While the overriding concern of the
    confessions rule is with voluntariness, hence its place as a condition
    precedent to admissibility, voluntariness overlaps with reliability:
R. v.
    Oickle
, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 32, 47.

[75]

In each case, the application of the confessions rule is contextual. The
    trial judge is required to conduct an inquiry of all the relevant circumstances
    and factors to determine whether the Crown has proven voluntariness beyond a
    reasonable doubt:
Oickle
, at para. 47.

[76]

Where what is said to negate voluntariness is an inducement offered by a
    person in authority, a trial judge should examine the evidence for a
quid
    pro quo
offer by investigators. This offer raises the possibility that an
    accused is confessing, not because of any inherent desire to do so, but because
    of an appetite for the benefit offered. The mere offer of an inducement is not
    improper. An inducement only becomes improper when, on its own or in
    combination with other factors, the inducement is strong enough to raise a
    reasonable doubt about whether the accuseds will has been overborne:
Oickle
,
    at paras. 56, 57;
R. v. Spencer
, 2007 SCC 11, [2007] 1 S.C.R. 500, at
    para. 15.

[77]

Sometimes, perhaps often, the motives of an accused to admit
    responsibility for an offence are mixed. Some hope that an early admission may
    yield something they seek. Early release. A lenient sentence. Favourable
    treatment of another. Where the hope is self-generated, it can scarcely be
    contended that its origins are moored in anything said or done by a person in
    authority. The essential
quid pro quo
falls away in such cases, even
    if something said or done by a person in authority amounts to an inducement.
    For there, there is no nexus:
Oickle
, at para. 57;
R. v. Rennie
(1981), 74 Cr. App. R. 207 (C.A.), at p. 212.

[78]

Something should be said about two features of the
voir dire
as
    it unfolded before the trial judge.

[79]

The first has to do with the right of counsel for a co-accused to
    participate in the
voir dire
.

[80]

It is fundamental that in nearly all cases, a statement made to a person
    in authority by one accused is not admissible in relation to another co-accused
    in a joint trial, even if the statement refers to something said or done by the
    other accused:
R. v. Zvolensky,
2017 ONCA 273, at para. 25. The
    co-conspirators exception to hearsay is an exception to this general rule: see,
R. v. Baron
(1976), 31 C.C.C. (2d) 525 (Ont. C.A.), at p. 533. It
    follows that, at least as a general rule, a co-accused has no direct interest
    in a
voir dire
held to determine the admissibility of another
    co-accuseds statement, thus no unqualified right to participate in a
voir
    dire
to determine the admissibility of that statement:
R. v. McLeod
(1983), 6 C.C.C. (3d) 29 (Ont. C.A.), at p. 36, affirmed [1986] 1 S.C.R. 703.

[81]

The second concerns the propriety of questions of an accused who
    testifies on a voluntariness
voir dire
about the truthfulness of the
    statement or selected parts of it.

[82]

In
R. v. DeClercq,
[1968] S.C.R. 902, the Supreme Court of
    Canada held that the truth or falsity of a statement to a person in authority
    is not irrelevant to an inquiry into the voluntariness of the statement. In
    giving evidence on the
voir dire
on voluntariness, an accused may be
    asked whether the statement is true:
DeClercq
, at pp. 907-8 and 911.
    Until the Supreme Court of Canada says otherwise,
DeClercq
remains
    binding precedent despite its reliance on
R. v. Hammond
(1943), 28 Cr.
    App. R. 84 (C.C.A.), a decision subsequently overruled by the Privy Council in
R.
    v. Wong Kam-Ming
(1979), 69 Cr. App. R. 47.

The Principles Applied

[83]

As I will explain, I would not give effect to this ground of appeal.
    Neither individually, nor in combination, do the discrete claims of error
    advanced by the appellant persuade me that the trial judge was wrong in finding
    the video interview of the appellant voluntary and thus admissible in evidence
    at trial.

[84]

First, the pre-occupation with and dispositive influence of the
    truthfulness of the statement.

[85]

The trial judge accurately described the principles that govern the
    determination of voluntariness. Nothing he later said revealed anything other
    than his fidelity to those governing principles. Read as whole, the trial
    judges reasons do not sustain the appellants characterization of truthfulness
    as the determinative factor in the voluntariness decision. The reasons reveal a
    finding of voluntariness based on a consideration of all the circumstances.

[86]

The single factor advanced by the appellant to raise a reasonable doubt
    about voluntariness was an alleged inducement offered by Cst. Hunt. But the
    trial judge found, as he was entitled to find on the evidence, that the
    appellants motivation to speak was self-generated and preceded anything that
    may have been said by Cst. Hunt. Even accepting the appellants version of his
    interaction with Cst. Hunt, any inducement offered by the officer, on its own
    or in combination with other factors, is incapable of generating a reasonable
    doubt about whether the appellants will was overborne. This self-generated
    motivation puts paid to any credible assertion of involuntariness.

[87]

Second, the participation of counsel for the co-accused Church in the
voir
    dire
on voluntariness.

[88]

In the circumstances of this case, the trial judge erred in permitting
    counsel for the co-accused Church to participate in the
voir dire
to
    determine the voluntariness, thus admissibility of the police interviews of the
    appellant and William Richards. This was not a case in which either statement
    was admissible to assist in determining the adequacy of the Crowns case
    against Wayne Church.

[89]

To permit counsel for the co-accused to participate in the
voir dire
to determine the voluntariness, thus admissibility of the police interviews of
    the appellant and William Richards was a procedural irregularity. However, it
    did not cause the trial judge to lose jurisdiction over the class of offence on
    which the appellant was being tried. Nor did the appellant suffer any prejudice
    as a result of counsels participation in the
voir dire
. If need be, I
    would apply the curative proviso in s. 686(1)(b)(iv) to sustain the
voir
    dire
result, despite this procedural irregularity.

[90]

Absent later jurisprudence from the Supreme Court of Canada overruling
DeClercq
and holding that an accused who testifies on a
voir dir
e
into
    the voluntariness of a statement to persons in authority cannot be asked about
    the truthfulness of the statement or parts of it, I am unable to conclude that
    the cross-examination was improper. I have already rejected as unsupported by
    the reasons read as a whole the claim that the trial judge treated the admitted
    truthfulness of parts of the statement as dispositive of its voluntariness.

[91]

The submission that a focus on veracity encourages abuse of police
    conduct in questioning an accused and discourages an accused from testifying on
    the
voir dire
is without merit.

[92]

The voluntariness rule, as well its accompanying burden and standard of
    proof, constitute a significant barrier to abusive police questioning, apart
    altogether from any constitutional restrictions that may apply.

[93]

The complaint that responses to questions on a
voir dire
may
    incriminate an accused moves no freight. The discrete nature of
voir dire
proceedings ensures that the answers given there do not form part of the
    evidence at trial on the basis of which the guilt of an accused will be
    determined. That an accused testifies on the
voir dire
imposes no obligation
    on him or her to testify at trial. Further, the fact that a cross-examiners
    questions may elicit incriminating responses proves too much. That an accused
    who testifies may be compelled to give incriminating responses is not confined
    to cross-examination on a
voir dire
. It extends equally to the trial
    itself. So far as I am aware, such a prospect has not been advanced as having a
    chilling effect on the decision of an accused to testify or decline to give
    evidence.

[94]

Third, misapprehension of evidence.

[95]

After a careful review of the trial judges reasons on the
voir dire
,
    I am unable to find any misapprehension of the substance of the appellants
    evidence, much less one that plays an essential part in the reasoning process
    that resulted in the admission of the interview as a voluntary statement to a
    person in authority.

Ground #3: Inadequate Assistance to the Self-represented Accused

[96]

The final ground of appeal fixes on the obligations of a trial judge to
    assist a self-represented litigant in trial proceedings. More narrowly, it
    targets the failure of the trial judge to assist the appellant when evidence
    was given which revealed a breach of the implementation component of the right
    to counsel under s. 10(b) of the
Charter
.

[97]

The evidence that supplies the foundation for the alleged infringement
    is uncontroversial. For current purposes, a brief summary of it will suffice.

The Arrest, Caution and
Charter
Advice

[98]

An officer arrested the appellant without warrant at a local convenience
    store. He cautioned the appellant and provided him with the advice required by
    ss. 10(a) and (b) of the
Charter
. The appellant responded with a
    request to speak with a lawyer. The officer told him that he could speak to a
    lawyer when they got to the police station. En route to the station, the
    officer did not try to elicit any information from the appellant.

[99]

At the station, the arresting officer did not facilitate any contact
    between the appellant and a lawyer. Instead, he turned the appellant over to
    another police officer who reiterated the police caution and
Charter
advice. This time, the appellant responded to the
Charter
advice by
    asking to speak to a specific lawyer whose name he provided. The officer did
    not facilitate his request, apparently because execution of the telewarrant at
    the appellants home had not yet begun. Instead, the officer offered to contact
    Duty Counsel to speak with the appellant, an offer the appellant declined.

[100]

The second officer remained with the appellant for about half an hour.
    They talked. Their discussion was not recorded. The officer took no notes and
    claimed little, if any, recollection of what they had talked about. Shortly
    after execution of the telewarrant began, the officer permitted the appellant
    to speak to his counsel of choice. Then to a second lawyer, because counsel of
    choice had a conflict of interest. These conversations were brief and occurred
    about one and one-half hours after the appellants arrest.

[101]

Shortly after the appellants brief discussion with the lawyers, the
    interview admitted in evidence began, with yet another officer asking the
    questions.

The Response of the Trial Judge

[102]

Evidence that the police twice failed to facilitate the appellants
    contact with counsel did not prompt the trial judge to advise the appellant of
    the polices obligation to do so or of his right to challenge the admissibility
    of the video interview as evidence obtained in a manner that infringed his
    right to counsel.

[103]

The judge provided the appellant with no materials to assist him in
    understanding the issue or in pursuing exclusion. Neither did he make any
    inquiry of the Crown.

The Arguments on Appeal

[104]

The appellant says that the uncontradicted evidence disclosed an
    infringement, arguably two infringements, of the implementation component of s.
    10(b) of the
Charter
. This required the trial judge to undertake an
    inquiry to determine:

i.

the nature and extent of the infringement;

ii.

whether there was a sufficient nexus between the infringement and the
    subsequent interview such that the evidence of the interview fell within the
    reach of s. 24(2) of the
Charter
; and

iii.

in the event s. 24(2) applied, whether the evidence should be excluded
    under
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353.

[105]

The appellant says that had the trial judge followed these steps, the video
    interview would have been excluded as evidence against him.

[106]

The respondent acknowledges that it would have been preferable that the
    police put the appellant in contact with counsel immediately. In the end,
    however, the appellant did speak with counsel of his choosing prior to the
    police interview, was advised that he need not speak to investigators, but went
    ahead anyway and did so. In these circumstances, the respondent submits, had an
    admissibility inquiry been conducted, the evidence would have been admitted.

[107]

The respondent says that the earlier failure to provide timely access to
    the advice of counsel would only be of consequence to the issue of
    admissibility if Cst. Hunt had interrogated or otherwise elicited evidence from
    the appellant while they were in each others company. But Cst. Hunt did not do
    this, rather confined his few queries to information required for the booking
    process. The appellants own evidence made it clear that it was he who
    volunteered the information, taking responsibility for what would be found on
    the search to avoid damage to his home during the search and to exculpate his
    children.

The Governing Principles

[108]

The principles that govern our decision on this ground of appeal are
    those that describe the obligation imposed on a trial judge to assist a
    self-represented accused; those that delineate the duty on the police when a detainee
    invokes their right to speak with a lawyer; and those that define the scope of
    the phrase evidenceobtained in a manner in s. 24(2) of the
Charter
.

[109]

First, the obligation imposed on a trial judge where an accused is
    self-represented.

[110]

Where an accused is self-represented, a trial judge has a duty to
    ensure that the accused has a fair trial. To fulfill this duty, the trial judge
    must provide guidance to the accused to the extent the circumstances of the
    case and accused may require. Within reason, the trial judge must provide
    assistance to aid the accused in the proper conduct of his defence and to guide
    him as the trial unfolds in such a way that the defence is brought out with its
    full force and effect:
R. v. Chemama
, 2016 ONCA 579, 351 O.A.C. 381, at
    para.
13;
R. v. Tran
(2001), 156 C.C.C. (3d) 1 (Ont. C.A.),
    at para. 22;
R. v. McGibbon
(1988), 45 C.C.C. (3d) 334 (Ont. C.A.), at
    p. 347.

[111]

The duty owed by trial judges to self-represented litigants is
    circumscribed by a standard of reasonableness. The trial judge is not, and must
    not become, counsel for the accused. The judge is not entitled, indeed
    prohibited, from providing the assistance of the kind counsel would furnish
    when retained to do so:
Chemama
, at para. 14;
R. v. Taubler
(1987), 20 O.A.C. 64 (C.A.), at para. 30;
R. v. Turlon
(1989), 49
    C.C.C. (3d) 186 (Ont. C.A.), at p. 191;
McGibbon
, at p. 349. A standard
    of reasonableness accommodates a range of options to ensure the necessary
    degree of assistance and eschews a single exclusive response.

[112]

The onus on the trial judge to assist the self-represented accused is a
    heavy one. This characterization means that it is not enough that the verdict
    at the end of the trial is or appears correct. What matters is whether the
    trial has been fair to the self-represented accused:
Tran
, at para. 31;
R. v. Dimmock
(1996), 47 C.R. (4th) 120 (B.C. C.A.), at para. 20.

[113]

The onus extends, at least can extend, to an obligation on the
    trial judge to raise
Charter
issues on the judges own motion where
    the accused is self-represented:
R. v. Travers
, 2001 NSCA 71, 154
    C.C.C. (3d) 426, at para. 36. This is not to say, however, that this specific
    obligation becomes engaged on the mere scent or intimation of a possible
Charter
infringement:
Travers
, at para. 40. But where there is admissible
    uncontradicted evidence of a relevant
Charter
breach, the trial judge
    has an obligation to raise the issue, invite submissions and enter upon an
    inquiry into the infringement and its consequences:
Travers
, at paras.
36, 40;
R. v. Arbour
(1990), 4 C.R.R. (2d) 369 (Ont.
    C.A.), at p. 372.

[114]

Second, the implementation component in s. 10(b) of the
Charter
.

[115]

The implementation component in s. 10(b) becomes engaged when an accused
    or detainee invokes the right to speak to a lawyer. Invocation of the right
    imposes a duty on police to afford the detainee a reasonable opportunity to
    exercise the consultative aspect of the right and to refrain from attempting to
    elicit evidence or otherwise using the accused as a source of information until
    she has had a reasonable opportunity to consult with counsel:
R. v. Evans
,
    [1991] 1 S.C.R. 869, at p. 890;
R. v. Smith
, [1989] 2 S.C.R. 368, at
    pp. 384, 391.

[116]

Where compelling and urgent circumstances exist, police need not hold
    off in their attempts to elicit incriminating evidence from an accused. But
    urgency is not created by mere investigatory and evidentiary expediency:
R.
    v. Prosper
, [1994] 3 S.C.R. 236, at p. 275. Once police are clearly in
    control of the situation, they are required to permit a detainee to contact a
    lawyer:
R. v. Strachan
, [1988] 2 S.C.R. 980, at pp. 998-999.

[117]

Third, the scope of the phrase evidenceobtained in a manner in s.
    24(2) of the
Charter
.

[118]

The admissibility rule for which s. 24(2) provides may only be invoked
    in connection with evidenceobtained in a manner that infringed or denied any
Charter
guaranteed right or freedom.

[119]

Where the evidence to which s. 24(2) is said to apply is a statement
    allegedly tainted by an earlier
Charter
breach, courts have adopted a
    purposive and generous approach. The party seeking exclusion need not establish
    a strict causal relationship between the breach and the later statement. The
    later statement will be tainted if the breach and the statement can be said to
    be part of the same transaction or course of conduct:
Strachan
, at p.
    1005. A trial judge is required to consider all the circumstances to determine
    whether the evidence establishes, singly or in combination, a temporal,
    contextual or causal connection between the breach and the statement to engage
    the admissibility rule of s. 24(2):
R. v. Wittwer
, 2008 SCC 33, [2008]
    2 S.C.R. 235, at para.
21;
R. v. Plaha
(2004), 188
    C.C.C. (3d) 289 (Ont. C.A.), at para.
45.  A temporal connection between
    the breach and the statement is usually enough to bring the statement within
    the reach of s. 24(2):
Plaha
, at para. 48. A remote or tenuous
    connection will not suffice:
Wittwer
, at para. 21;
Plaha
, at
    para. 45;
R. v. Goldhart
, [1996] 2 S.C.R. 463, at para. 40.

The Principles Applied

[120]

As I will briefly explain, I would give effect to this ground of appeal.

[121]

The evidence adduced on the inquiry into voluntariness indicated that, on
    two occasions when the appellant invoked his right to speak to a lawyer,
    including one occasion when he asked to speak to a specific lawyer, the
    arresting officer and a second officer failed to provide him with a reasonable
    opportunity to do so. The appellant was clearly in the control of the police,
    going nowhere and doing nothing to interfere with their investigation. There
    was no urgency. And none was created by mere investigative expediency. The
    request was to call a lawyer, ultimately a specific lawyer, not to call home to
    alert his children to an imminent search of the house.

[122]

Second, the evidence on the
voir dire
also provided a
    foundation for a finding that there was a sufficient temporal, contextual or
    causal connection between the infringements and the police interview with the
    appellant. This nexus was capable of providing an entrée to the admissibility
    rule of s. 24(2).

[123]

Third, the circumstances I have just described imposed an obligation on
    the trial judge to assist the self-represented appellant on this issue; to
    inquire into the circumstances to determine whether the interview tendered for
    admission was the product of constitutional infringement; and, if so, whether
    it should be excluded under s. 24(2) of the
Charter
.

[124]

Fourth, the failure of the trial judge to assist the appellant and
    undertake the necessary inquiry amounted to a failure to provide the appropriate
    degree of assistance to a self-represented litigant against whom the police
    interview was the most significant piece of evidence. In these circumstances,
    the correctness or otherwise of the findings of guilt is beside the point. The
    appellants trial was unfair, a consequence that cannot be made whole by the
    application of either s. 686(1)(b)(iii) or s. 686(1)(b)(iv).

CONCLUSION

[125]

In the result, I would allow the appeal, set aside the convictions and
    order a new trial on the two offences of which the appellant was convicted at
    trial.

Released: DW May 25,
    2017

David Watt J.A.

I agree. P. Lauwers J.A.

I agree. M.L. Benotto J.A.


