



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fountain, 2017 ONCA 596

DATE: 20170712

DOCKET:
C62255


Rouleau, Trotter and
    Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Howard Fountain

Appellant

Delmar Doucette, for the appellant

Rachel Young, for the respondent

Heard: May 18, 2017

On appeal from the conviction entered on October 22, 2015
    by Justice Ferhan Javed of the Ontario Court of Justice.

Paciocco J.A.:

A.

OVERVIEW

[1]

Jason Fountain (Mr. Fountain) was convicted after trial by judge alone
    on four counts of armed robbery contrary to s. 344(1) of the
Criminal Code
;
    four counts of forcible confinement contrary to s. 279(2) of the
Criminal
    Code
; and breaking and entering a dwelling house to commit an indictable
    offence therein contrary to s. 348(1)(b) of the
Criminal Code
. These convictions are based on a finding by the
    trial judge that Mr. Fountain
was a party to a home invasion
    robbery that occurred on September 25, 2014 in which drugs and electronics were
    stolen, and the four occupants were threatened with a gun and tied up. Mr.
    Fountain
was sentenced to
four
    years in prison, minus time served.

[2]

Mr. Fountain appeals these convictions. He urges 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.
    Specifically, Mr. Fountain claims that the investigating officer, Detective
    Paolo Dellipizzi (Det. Dellipizzi) should have given him a 
Prosper
warning
    when he opted to wait until the next day to speak to his lawyer after his
    lawyer could not be contacted the day of his arrest, despite repeated efforts.
    A
Prosper
warning, developed in
R. v. Prosper
, [1994] 3
    S.C.R. 236, is meant to ensure that detainees understand what they are giving
    up when they abandon their attempt to get legal advice without delay. Mr.
    Fountain claims that, given the circumstances of this case, in the absence of a
Prosper
warning his statements must be excluded.

[3]

I agree with Mr. Fountain that a
Prosper
warning was required,
    and that the trial judge erred in rejecting Mr. Fountains s. 10(b)
Charter
challenge.

[4]

Specifically, the trial judge erred in finding that Mr. Fountain lost
    entitlement to a
Prosper
warning because he was not reasonably
    diligent in seeking legal advice. This finding ignores the context. When Mr.
    Fountain declined the offer to call a legal aid lawyer and chose to wait until
    the next day to speak to his own counsel, he was accepting an option that Det.
    Dellipizzi held out. Mr. Fountain had no reason to believe that he was
    compromising his constitutional rights by making that choice.

[5]

The trial judge also erred when he held that Mr. Fountain did not
    qualify for a
Prosper
warning because he did not expressly indicate
    that he had changed his mind about speaking to a lawyer. In fact, a
Prosper
warning is triggered even by an
apparent
change of mind, and it was apparent that Mr. Fountain was no longer seeking to
    speak to a lawyer without delay when he chose to wait until the next day.
    Certainly that is how Det. Dellipizzi saw it. That being so, Det. Dellipizzi
    should have given him a
Prosper
warning.

[6]

The trial judges finding that Mr. Fountain waived his right to consult
    counsel without delay is also in error. Without a
Prosper
warning
    having been given there is no basis for inferring that Mr. Fountain understood
    what he was giving up when he chose to wait until the next day.

[7]

It was also an error for the trial judge to find that if a
Prosper
warning
    was required, a police caution is an adequate substitute for that

warning.
    It is not. A proper
Prosper
warning requires more than knowledge of
    the right to remain silent.

[8]

Mr. Fountains s. 10(b) rights were therefore violated. In all of the
    circumstances, the statements he made before consulting counsel require
    exclusion under s. 24(2) of the
Charter
.

[9]

These statements were the lynch-pin of the Crowns case, which was built
    primarily on Mr. Fountains admissions that he drove the two intruders to the
    invasion, and that he had been to the address where he is seen on the
    surveillance tape with the other two suspects on the day of the invasion. The
    Crown required the latter admission to date the surveillance tape since, at
    trial, there proved to be no objectively reliable way of confirming when the
    video was taken.

[10]

The prosecution against Mr. Fountain cannot survive the exclusion of
    these statements. I would therefore allow Mr. Fountains appeal, quash the
    convictions and enter acquittals.

B.

FACTS RELEVANT TO THE RIGHT TO COUNSEL

[11]

Events leading to Mr. Fountains impugned statement began at 1:31 p.m.
    on October 14, 2014, when Det. Dellipizzi arrested Mr. Fountain and advised him
    of his right to counsel. Mr. Fountain asked Det. Dellipizzi to have his
    girlfriend, who was present at the time of arrest, call his lawyer.

[12]

Another officer transported Mr. Fountain to the station at 1:45 p.m.
    Det. Dellipizzi remained at the scene to search Mr. Fountains car and speak
    with his girlfriend.

[13]

When Mr. Fountain arrived at the station at 2:10 p.m., he confirmed that
    he was advised of his right to counsel and told the booking officer that he
    wished to contact a lawyer. He identified Richard Aitken (Mr. Aitken) as his
    lawyer and provided his phone number.
[1]


[14]

At 2:13 p.m., Det. Dellipizzi spoke to Mr. Fountains girlfriend who
    provided him with a phone number for Mr. Fountains lawyer, which matched the
    number Mr. Fountain had furnished at the station.

[15]

Det. Dellipizzi first attempted to reach Mr. Aitken at 2:35 p.m. on his
    way to the station after searching Mr. Fountains car. He reached Mr. Aitkens
    Oshawa office and spoke to someone there who said that Mr. Aitken was in
    Peterborough but would call him back. Based on what he was told, Det.
    Dellipizzi assumed that Mr. Aitken was in Peterborough on another case.

[16]

At 5:03 p.m. Det. Dellipizzi visited Mr. Fountain at his cell and
    advised him that Mr. Aitken was out of town on another matter.

[17]

At 6:16 p.m. Det. Dellipizzi called Mr. Aitkens Oshawa office again,
    leaving a message for Mr. Aitken to call.

[18]

At 6:57 p.m. Det. Dellipizzi called Mr. Fountains girlfriend, who
    advised that Mr. Aitkens office had said that a lawyer would be there in the
    morning.

[19]

It was not until 8:13 p.m. that Mr. Fountain was brought to an interview
    room. After advising Mr. Fountain generally about why he was in custody, Det.
    Dellipizzi raised the right to counsel issue. The following exchange occurred
    after Det. Dellipizzi told Mr. Fountain that he had tried to reach Mr. Aitken
    twice:

Fountain: I havent  I havent been able to.

Dellipizzi: Yeah, thats why Im here to explain it to you. I
    did call twice. Um, I spoke to a receptionist or whatever they are there. Uh,
    Tanya [your girlfriend], I talked to her



Dellipizzi:  But she told me she talked to some lady at the
    law office, who said theres going to be a lawyer there. Okay?

Fountain: Okay.



Dellipizzi:  for whatever reason uh, Mr. Aitkens office
    hasnt called here. I dont know why.

Fountain: Mmm-hmm.

Dellipizzi: Uh, do you want to call another lawyer or free
    Legal Aid uh, and talk to one of the uh, lawyers in regards to uh, these
    charges? Any lawyer you want or we can call free Legal Aid.

Fountain: Ill just  Ill just wait till tomorrow, I guess, if
    theyre going to have someone there tomorrow cuz its already late now, isnt
    it?

Dellipizzi: No, theyre open. Legal  Legal Aid is open 24
    hours.

Fountain: No, I know.

Dellipizzi: And other lawyers.

Fountain: What time is it?

Dellipizzi: Its uh, eight-twenty.

Fountain: Yeah?

Dellipizzi: Um, okay. So, you  what do you want to do? You
    want to just wait till the morning or

Fountain: Yes.

Dellipizzi:  do you want somebody called? Okay.

[20]

At that point, Det. Dellipizzi cautioned Mr. Fountain. He gave both the
    primary caution about the right to silence and the secondary caution warning
    Mr. Fountain to disregard any prior influences to speak that may have come from
    other officers. Det. Dellipizzi then began to question Mr. Fountain.

[21]

After an exchange that took some 30 pages to transcribe, the following
    conversation occurred:

Fountain: Like you keep asking me the same questions. Like Ive
    asked to speak to my lawyer, like

Dellipizzi: Okay. Well, yeah, you can.

Fountain: Well....

Dellipizzi: The only thing is, she [sic] hasnt called. Thats
    why I said if you want, you can call another lawyer

Fountain: Well, the thing is

Dellipizzi: or free Legal Aid.

Fountain: Like this is an illegal interrogation without me
    speaking to a lawyer, is it not?

Dellipizzi: Its up to you, man. Youre the one that dictates
    to me what you want done.

Fountain: Well, youre  you keep pushing and pushing. I  I.

[22]

Det. Dellipizzi recommenced questioning Mr. Fountain. Shortly thereafter
    this exchange took place:

Fountain: Like honestly, I dont know why you keep asking me
    this if you already know everything. I keep saying I want to talk to my lawyer.

Dellipizzi: Like I said, if you want, I.

Fountain: I said.

Dellipizzi: Unfortunately, Mr. Atkins  Mr. Atkins isnt
    returning the calls. But if you want, you tell me what lawyer if theres a
    second lawyer that you want to call or a third, whatever, we can call him, or I
    can call Legal Aid. But I cant force him to call here. I dont know why hes
    not called.

Fountain: Then call Legal Aid, then.



Fountain: I dont know what my rights are, like.

[23]

Mr. Fountain spoke to a Legal Aid lawyer at 9:34 p.m. After that, he
    made no comments of substance and was returned to his cell at 9:51 p.m.

C.

Decision Below

[24]

The trial judge dismissed Mr. Fountains
Charter
application.
    He concluded that the evidence obtained from Mr. Fountains interrogation was
    not obtained in a manner that violated his right to counsel under s. 10(b) of
    the
Charter
.

[25]

The trial judge found that Det. Dellipizzi complied with the
    informational component of s. 10(b) by informing Mr. Fountain of his right to
    counsel, and with the implementation component by trying to contact Mr.
    Fountains lawyer on two occasions. However, the trial judge found that Mr.
    Fountain did not act in a reasonably diligent manner by waiting until the
    following day to speak to his lawyer rather than speaking to another lawyer
    immediately. He held that a
Prosper
warning to advise Mr. Fountain of
    the rights he was giving up was not required, both because of the absence of
    reasonable diligence, and because Mr. Fountain had not expressly said he did
    not want to contact counsel. The trial judge then held that, if he was wrong,
    Mr. Fountain waived his right to counsel and the caution given to Mr. Fountain
    was an effective substitute for a
Prosper
warning.

[26]

The trial judge went on to hold that, if he was wrong in his assessment
    of the
Charter
violation, he would not have excluded Mr. Fountains
    statement under s. 24(2) of the
Charter
.

D.

ANALYSIS

(1)

The
Prosper
Warning

[27]

The 
Prosper
warning is meant to equip detainees with the
    information required to know what they are giving up if they waive their right
    to counsel. A
Prosper
warning is not required in all cases. It is
    needed only if a detainee has asserted the right [to counsel] and then
    apparently change[s] his mind after reasonable efforts to contact counsel have
    been frustrated:
R. v. Smith
(1999), 44 O.R. (3d) 373 (C.A.), at p. 384.
    In such circumstances, the burden of establishing a waiver of those rights is
    on the Crown and is a high one, requiring proof of a clear, free and voluntary
    change of mind made by someone who knew what they were giving up:
Smith
,
    at p. 382;
Prosper
, at pp. 274-275. A proper
Prosper
warning
    is therefore significant in enabling the Crown to prove waiver of the right to
    counsel in such cases.

[28]

It is helpful in understanding the
Prosper
warning to
    appreciate the rights that are stake when a detainee waives their right to
    counsel. Specifically, when a detainee asserts their desire to exercise the
    right to counsel, either expressly or by not waiving their right to counsel,
    the police are obliged to cease questioning and are under a duty to facilitate
    the exercise of that right:
Smith
, at p. 380. The temporary
    obligation to cease questioning also extends to other efforts to elicit
    evidence from the detainee, and is often referred to as the obligation or duty
    to hold off, since there is no problem in properly using the detainee as a
    source of evidence after they have exercised or relinquished their right to
    counsel:
Prosper
, at p. 269.

[29]

In
Prosper
,

at p. 274,

Lamer C.J. described
    the required
Prosper
warning and its legal triggers in this way:

I find that an additional informational obligation on police
    will be triggered once a detainee, who has previously asserted the right to
    counsel, indicates that he or she has changed his or her mind and no longer
    wants legal advice. At this point, the police are required to tell the detainee
    of his right to a reasonable opportunity to contact a lawyer and of the
    obligation on the part of the police during this time not to take any
    statements or require the detainee to participate in any potentially
    incriminating process until he or she has had that reasonable opportunity.

[30]

If the detainee is not reasonably diligent in exercising the right to
    counsel, the duty to hold off will be suspended and the police may question the
    detainee:
R. v. Bartle
, [1994] 3 S.C.R. 173, at p. 192;
R. v.
    Brydges
, [1990] 1 S.C.R. 190, at p. 204. The obligation on the police to
    make efforts to facilitate contact with counsel will also be suspended
: R.
    v. Willier
, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 43-44. The right
    to receive a
Prosper
warning at the time will also be lost. After all,
    there is no need to advise a detainee of what they will lose if they waive
    their right to consult counsel without delay, where the detainee has already
    forfeited that right by not being reasonably diligent in exercising it.

[31]

The Crown argues that the trial judge applied this law correctly and was
    entitled to hold, on the evidence, that a
Prosper
warning was not
    required. I disagree.

(a)

Reasonable Diligence

[32]

The trial judges primary basis for ruling that a
Prosper
warning
    was not needed was his finding that Mr. Fountain had not been reasonably
    diligent in exercising his right to counsel by requesting to wait until morning
    to call Mr. Aitken instead of consulting duty counsel immediately. The trial
    judge explained that despite Det. Dellipizzi telling Mr. Fountain that Legal
    Aid is open 24 hours and rectifying any misconceptions Mr. Fountain had
    regarding the availability of counsel, Mr. Fountain persisted in his request
    to wait until the following day, not availing himself of duty counsel [T]his
    was not acting reasonably diligently.

[33]

This finding by the trial judge that Mr. Fountain was not reasonably
    diligent because he chose to wait until the following day to speak to his
    lawyer is wrong. It fails to take into account the context of Mr. Fountains
    decision to delay speaking to counsel.

[34]

Understood in context, Mr. Fountain was not being obstinate. He was not
    trying to impede the investigation. Nor was he signalling by his conduct that
    he was not serious about wanting to speak to a lawyer without delay. He was simply
    taking up an option that had been presented to him by Det. Dellipizzi, as if it
    was a benign choice that Mr. Fountain was entitled to make.

[35]

Specifically, after Mr. Fountain had been waiting in custody for
    approximately six and a half hours, Det. Dellipizzi took Mr. Fountain to the
    interview room. Det. Dellipizzi then explained that efforts to reach Mr. Aitken
    had failed but that a lawyer would be present the next day at Mr. Fountains bail
    hearing. Mr. Fountain suggested he would wait until morning. Without in any way
    indicating that it would be problematic for Mr. Fountain to wait to speak to
    his lawyer, Det. Dellipizzi offered Mr. Fountain the following options:

Dellipizzi: Um, okay. So, you  what do you want to do? You
    want to just wait till the morning or

Fountain: Yes.

Dellipizzi:  do you want somebody called? Okay.

[36]

When Mr. Fountain was offered the binary option of calling a legal aid
    lawyer now or waiting until the next day to speak to his own lawyer he would
    have had no reason to suspect that he would be forfeiting the hold off
    protection he had been enjoying, should he chose the latter option. Mr.
    Fountain was entitled to proceed as though either choice was reasonable. In
    this context, there was therefore nothing unreasonable in Mr. Fountain opting
    to wait until the next day.

[37]

Indeed, rather than demonstrating a lack of reasonable diligence on the
    part of Mr. Fountain, the way in which Mr. Fountain came to choose to speak to
    his lawyer the next morning reinforces the importance of a
Prosper
warning.
    As explained, the purpose of a
Prosper
warning is to ensure that
    detainees know what they are giving up when they abandon their efforts to speak
    to counsel without delay. If a detainee is not advised that they will lose a
    constitutional protection if they choose an offered option, that offer can
    operate as a trap. If Det. Dellipizzi was going to treat an option he was
    offering Mr. Fountain as authority to begin using Mr. Fountain as a source of
    evidence before he had spoken to a lawyer, Det. Dellipizzi should have told Mr.
    Fountain this. Yet he did not do so.

[38]

In these circumstances, Mr. Fountains decision to decline duty counsel
    and wait until the next day cannot fairly be taken as exhibiting an absence of
    reasonable diligence, and the trial judge erred by treating it as such

(b)

Change of mind

[39]

Another reason offered by the trial judge as disqualifying Mr.
    Fountains right to a
Prosper
warning was that Mr. Fountain had not
    declined the opportunity to consult with counsel. Specifically, the trial judge
    said:

In this case, I am of the view that a
Prosper
warning
    was not warranted, because a warning is only required where a detainee is
    diligent, but unsuccessful in contacting a lawyer, and subsequently declined
    any opportunity to consult with counsel. That is not what happened here. The
    detainee was not diligent, and, in any event, never expressly said he did not
    want to consult with counsel.

[40]

Picking up on this, the Crown contends that since Mr. Fountain wanted to
    speak to his lawyer the next day, he did not change his mind about wanting to
    speak to his lawyer  a necessary trigger for a
Prosper
warning  and
    therefore he does not qualify for a
Prosper
warning.

[41]

Before turning to the trial judges conception of what declining an
    opportunity to consult counsel entails, I will begin with the Crowns
    submission. If the Crowns point is that in order to trigger a
Prosper
warning,
    a detainee must decline the opportunity to consult a lawyer now and in the
    future, the focus is wrong.
Prosper
is not about waiver of the right
    to counsel in its entirety. It is about the waiver of the immediate right to
    counsel without delay. The fact that Mr. Fountain wanted to speak to a lawyer
    at some point in the future does not bear on whether he declined the
    opportunity to consult counsel without delay.

[42]

If the Crowns point is that, subjectively, Mr. Fountain did not decline
    the opportunity to consult counsel without delay because he wanted to speak to
    his lawyer at the first available opportunity, which happened to be the next
    day, it is also unhelpful. Had this been so, Mr. Fountains rights would still
    have been violated. The law knows of but two ways that the constitutional right
    of a detainee to consult counsel without delay can be lost  through a lack of
    reasonable diligence in exercising that right and through waiver. I have
    already addressed the reasonable diligence point, and
ex hypothesi
,
    someone who still wants to speak to counsel without delay has not waived that
    right.

[43]

Turning to the trial judges reasoning, I would note in passing that the
    submission that Mr. Fountain did not change his mind about wanting to speak to
    counsel is difficult to square with the trial judges alternative finding that
    Mr. Fountain waived his right to counsel without delay by saying that he would
    wait to speak to his lawyer in the morning. After all, a waiver of the right to
    counsel by someone who has previously and continuously asked to speak to
    counsel necessarily entails a change of mind about wanting counsel without delay.

[44]

There is, however, a more pressing problem with the trial judges
    treatment of the
Prosper
prerequisite that a detainee must decline the
    opportunity to consult counsel. As a matter of law, Mr. Fountain did not have
    to expressly say that he changed his mind about wanting to speak to counsel
    without delay in order to trigger entitlement to a
Prosper
warning.
    Just as a waiver can be implicit, so too can a change of mind about getting the
    kind of immediate legal advice that s. 10(b) is meant to protect:
Bartle
,

at pp. 191-192. Accordingly, if it is
apparent

that a detainee has changed his mind about wanting to speak to counsel
    without delay, and no other legal impediments to the right to a
Prosper
warning
    are operating, that warning must be given.

[45]

As Rosenberg J.A. makes clear in
Smith
,

at p. 384, the
    obligation is placed on the police to give a
Prosper
warning where
    the detainee has asserted the right [to counsel] and then
apparently
change[s] his mind (emphasis added). This is
    so because the purpose of the
Prosper
warning is to ensure that an
    apparent waiver of the detainees rights under s. 10(b) is a real waiver  made
    clearly and unequivocally, with full knowledge of the detainees s. 10(b)
    rights:
Prosper
, at pp. 274-275;
Smith
, at pp. 382-383.

[46]

While Lamer C.J. does refer in
Prosper
, at p. 274, to a
    detainee that indicates that he or she has changed his or her mind, when he
    summarized the rules developed in
Prosper
,

at p. 278, he
    said:

Upon the detainee
doing something which
    suggests he or she has changed his or her mind or no longer wishes to speak to
    a lawyer
, police will be required to advise the detainee of his or her
    right to a reasonable opportunity to contact counsel and of their obligation
    during this time not to elicit incriminating evidence from the detainee.
    [Emphasis added].

[47]

In
Prosper
, Mr. Prosper did not express a change of mind about
    speaking to a lawyer. His change of mind was inferred because, after learning
    that free duty counsel services were not available, Mr. Prosper commented that
    he could not afford a lawyer when asked if he wanted to call one.

[48]

In this case, Mr. Fountain clearly had an apparent change of mind from
    his earlier insistence on speaking to a lawyer now, when he said he wanted to
    wait until the next day to speak to a lawyer. Without question, Det. Dellipizzi
    believed it to be apparent that Mr. Fountain was declining his s. 10(b) right
    to consult without delay. After all, once Mr. Fountain said he would wait to
    speak to his lawyer, Det. Dellipizzi believed he no longer had to hold off in
    questioning him. Det. Dellipizzi should have provided Mr. Fountain with a
Prosper
warning before doing so.

(c)

Waiver

[49]

I do not accept the Crowns submission that the trial judge was correct
    in finding that even if a
Prosper
warning was required Mr. Fountain
    waived his right to consult counsel without delay by choosing to wait until the
    next morning to call his lawyer. In
Prosper
, at p. 275, Lamer C.J.
    affirmed that a person who waives a right must know what he or she is giving
    up if the waiver is to be valid. He explained that the additional
Prosper
informational
    requirement ensures that a detainee who persists in wanting to waive the right
    to counsel [that they had been trying to enjoy] will know what it is that he or
    she is actually giving up:
Prosper
, at p. 274.

[50]

In this case, absent a
Prosper
warning, it is not possible for
    the Crown to meet its burden of showing that Mr. Fountains apparent change of
    mind about consulting counsel without delay was a knowing and effective waiver.
    There is nothing on the record to show that he knew what he would be giving up.
    Indeed, Mr. Fountain protested the continued interrogation because he did not
    know what his rights were.

[51]

The
Prosper
warning should have been given, and if Mr. Fountain
    then persisted in declining duty counsel and waiting until the next day to
    speak to his lawyer, the Crown would have been in a position to demonstrate a
    proper waiver. Since the
Prosper
warning was not provided, the waiver
    finding made by the trial judge was wrong. A waiver finding could not
    reasonably have been made on this factual record.

(d)

Standard Caution Versus a
Prosper
Warning

[52]

I disagree with the Crowns final contention that the trial judge was
    correct to hold, in the alternative, that even if a
Prosper
warning
    was required, Mr. Fountain was given enough information to satisfy the law. The
    only warnings given to Mr. Fountain were through police cautions about his
    right to remain silent. The function of a
Prosper
warning is not to
    alert the detainee of their right to silence. It is meant to ensure that a
    waiver of the right to counsel has integrity.

[53]

As is clear from the content of the warning designed by the Supreme
    Court in
Prosper
, a proper
Prosper
warning is meant to alert
    the detainee to the fact that, when they change their mind about wanting
    counsel, the hold off period in using them as a source of evidence is
    suspended. It is also meant to communicate to the detainee that if they want to
    speak to counsel now that they are better informed they will be given a
    reasonable opportunity to do so, even though they may have already signalled
    that they have changed their mind about wanting to speak to counsel. None of
    this information is communicated to the detainee by saying that they have a
    right to silence.

[54]

This case exemplifies the point. After being cautioned about his right
    to silence, Mr. Fountain expressed doubt about whether he was being interviewed
    legally because he had not exercised his right to counsel. He had no idea what
    he was giving up by choosing to wait until the next day to speak to his lawyer.

[55]

The trial judge was therefore wrong to hold that the [police] caution
    given to the defendant was an effective substitute for the required
Prosper
warning, given its temporal nexus to the circumstances of the
    interrogation.  It was not.

(e)

Conclusion on the Section 10(b) Breach

[56]

The trial judge therefore erred in law in several respects on the
Prosper
warning issue. In the factual context of this case there was no basis for
    a finding that Mr. Fountain was not reasonably diligent in exercising his right
    to counsel; it was an error to require an expressed statement by Mr. Fountain
    that he did not want to consult counsel; there was no factual basis for finding
    Mr. Fountain knowingly waived the right to consult counsel without delay; and
    the cautions were not an adequate substitute for a
Prosper
warning. A
Prosper
warning should have been given on the uncontested evidence.

(2)

The Section 24(2)
Charter
Remedy

[57]

Section 24(2) of the
Charter
directs that evidence obtained in
    a manner that infringes a
Charter
right shall be excluded if it is
    established that, having regard to the circumstances, the admission of it in
    the proceeding would bring the administration of justice into disrepute. In
R.
    v. Grant
, 2009 SCC 32,

[2009] 2 S.C.R. 353, the Supreme Court set
    out a three-part test for determining the admissibility of evidence under s.
    24(2): (i) the seriousness of the
Charter
-infringing state conduct; (ii)
    the impact of the breach on the accuseds
Charter
-protected interests;
    and (iii) societys interest in the adjudication on the merits.

[58]

The three-part
Grant
test is applied to determine whether
    evidence should be excluded based on the impact of admission on the repute of
    the administration of justice.

[59]

In this case the trial judge engaged in what he described as the somewhat
    artificial analysis of whether s. 24(2) would have required exclusion, had he
    found a breach. This is not a case, however, where considerable deference is
    required in considering his conclusion:
R. v. MacMillan
, 2013 ONCA
    109, 114 O.R. (3d) 506. His s. 24(2) findings were tainted by the material
    errors he made.

[60]

First, the trial judge considered that any
Prosper
violation
    would be at the minor end of the seriousness spectrum because Mr. Fountain had
    been advised of his right to counsel, and offered the services of duty counsel.
    Second, he concluded that the effect of the breach on Mr. Fountain was attenuated
    because he had clearly been told that what he said could be used against him.
    Both of these conclusions are tainted by the trial judges failure to
    appreciate that the
Prosper
warning is intended to ensure that waivers
    of the right to counsel are integral and informed.

[61]

This court must therefore reconsider anew whether s. 24(2) requires
    exclusion of the evidence. Although there are no fixed rules that apply, writing
    for the majority in
Grant
, McLachlin C.J. and Charron J. state, at paras.
    95 and 96, that the admission of statements, particularly when obtained in
    violation of the right to counsel, will generally be excluded. That, of course,
    is what is at stake here.

[62]

Approaching the matter more specifically using the components of the
Grant
test, the
Charter
breach in this case falls towards the more serious
    end of the good faith/bad faith continuum.

[63]

While Det. Dellipizzi presented as being careful to ensure that he did not
    violate Mr. Fountains right to counsel, and attempted to facilitate that right
    on more than one occasion, good faith involves much more than good intentions.
Prosper
has been the law since 1994. It is not an obscure decision addressing a rare
    event. It is a long-standing precedent governing not only a ubiquitous
    investigative technique  the police interview  but every case where the
    police use a detained suspect as a source of evidence.

[64]

As Rosenberg J.A. pointed out in
Smith
,

at para. 384,
    
Prosper
instructs the courts to be sensitive to the rights of an
    accused who it is alleged has waived his rights. The same instruction has been
    given by the Supreme Court to police officers, who are expected to be educated
    about their core
Charter
duties. Where an officer aware of this body
    of law is presented with someone who has been insisting on their right to
    counsel and the officer concludes that they have apparently changed their mind
    after efforts to reach counsel have been frustrated, the officer should take
    the necessary steps to ensure that the waiver was real and informed. That did
    not happen. If Det. Dellipizzi was aware of the law, he should have followed
    it. If he was not aware of the law, he should have been.

[65]

Second, the impact of the breach on Mr. Fountains rights was
    significant. It resulted in Mr. Fountain giving incriminating evidence to
    police after being interviewed without knowing his rights.

[66]

In saying this, I accept the Crowns argument that the nature of the s. 10(b)
    violation has an important bearing on the impact of the breach:
Grant
,
    at para. 96. What I do not accept is the Crowns contention that Mr. Fountains
    case falls within one of the illustrations offered by the
Grant
majority
    of when statements can be admitted in spite of a
Charter
violation.

[67]

Specifically, this was not a technical violation. The
Prosper
warning
    is meant to ensure that individuals who have been frustrated in their attempts
    to enjoy their right to counsel do not give up the right to consult counsel
    without delay without a complete understanding of what is at stake. The
Prosper
warning

is a substantial protection designed to preserve the
    integrity of a centrally important
Charter
right to secure legal
    advice when detained.

[68]

This case illustrates how substantial this kind of breach can be. Once
    it became clear to Mr. Fountain that Det. Dellipizzi was claiming the legal
    authority to interview him even though he had not spoken to counsel, Mr.
    Fountain decided to speak to duty counsel immediately, and then became a much
    less fruitful source of information.

[69]

Based on the relative seriousness of the breach and the impact it had on
    Mr. Fountain, this case benefits from the guidance offered in this courts
    decision in
R. v. McGuffie
, 2016 ONCA 365, 131 O.R. (3d) 643, at
    paras. 62-63. Given the strength of the first and second
Grant
inquiries,
    this is a strong case for exclusion, unlikely to be tipped back by the third
    inquiry  societys interest in the adjudication on the merits.

[70]

To be sure, the evidence targeted for exclusion was crucial to the Crowns
    case. Without it, the prosecution fails. And while statements obtained during
    interrogations are not generally considered to be a particularly reliable form
    of evidence, I agree with the Crown that there are fewer reasons to be
    suspicious about Mr. Fountains statements in this case given that Det.
    Dellipizzis approach to questioning was not oppressive or overbearing, and given
    the voluntariness finding of the trial judge.

[71]

Still, the
Charter
right at stake here exists, in part, to
    ensure detainees have reasonable access to legal advice in order to rectify the
    disadvantage they have in preserving the right to silence, and so that they can
    learn about their legal rights relating to their detention. It enables
    detainees to get beyond learning they have a right to silence, to receiving
    advice on how to exercise that right. In my view, condoning the failure by the
    police to respect this well-entrenched
Charter
right
by admitting Mr. Fountains
    statements would do more harm to the long-term repute of the administration of
    justice than the exclusion of his statements.

[72]

The statements made by Mr. Fountain prior to his consultation with duty counsel
    should therefore be excluded pursuant to s. 24(2) of the
Charter
.

E.

Disposition

[73]

For the foregoing reasons, I would allow the appeal.

[74]

The Crown did not contest Mr. Fountains claim that his prosecution
    cannot survive the loss of this evidence and, on the record before us that is
    certainly true. The appropriate outcome, in my view, is therefore to substitute
    an acquittal for the conviction of the trial judge.

Released: RJS JUL 12 2017

David M. Paciocco
    J.A.

I agree. Paul Rouleau
    J.A.

I agree. G.T. Trotter
    J.A.





[1]
The evidentiary record is unclear as to whether any effort was made at the time
    to contact Mr. Aitken. However, Mr. Fountain alleges no breach at this stage.


