



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Burnett, 2021 ONCA 856

DATE: 20211202

DOCKET: C63048

Watt, Benotto and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Burnett

Appellant

Mark C. Halfyard and Christopher S.
    Rudnicki
, for the appellant

Tracy Kozlowski
,
    for the respondent

Heard: September 21, 2021 by video conference

On appeal from the
    conviction entered by Justice Anne M. Molloy of the Superior Court of Justice,
    sitting with a jury, on April 2, 2015.

Watt J.A.:


[1]

Four people were together in an elevator. J.B., her
    jealous lover, Cory Campbell (the deceased), and J.B.s friends, the
    appellant and Jeramy Henry. Everyone had the same destination in mind  J.B.s
    apartment.

[2]

The deceased was armed. He had a knife he had
    recently picked up tucked into the waistband at the back of his pants. The
    appellant was armed as well. He had a loaded handgun because he always carried
    a handgun.

[3]

As the elevator ascended towards J.B.s
    apartment, the appellant and deceased got into a confrontation. J.B. tried to
    intercede. The elevator doors opened. Jeramy Henry left. The appellant drew his
    gun. He shot the deceased once in the chest. The shot killed the deceased.

[4]

The appellant and Jeramy Henry were jointly
    charged and tried on a count of first degree murder. The Crown alleged that the
    murder was planned and deliberate. The appellant said it was self-defence.

[5]

The jury concluded that the appellant did not
    shoot the deceased in lawful self-defence. But the jury was equally not
    satisfied that the unlawful killing was planned and deliberate first degree
    murder. They found the appellant guilty of second degree murder and Jeramy
    Henry guilty of manslaughter.

[6]

The appellant challenges his conviction on two
    unrelated grounds. These reasons respond to his claims of error and explain why
    I have concluded that his appeal should be dismissed.

The Background Facts

[7]

The circumstances surrounding the death of the
    deceased are confined to a single day. An overview of them will suffice to put
    the grounds of appeal in perspective.

The Principals and Their Relationship

[8]

J.B. and the deceased dated for about eight
    months. Various witnesses
[1]
described their relationship as turbulent and chaotic. They fought constantly.
    Each accused the other of infidelity. The deceased tried to control J.B.s
    activities. With whom she associated. How she dressed. Her social activities.
    He was intensely jealous and controlling.

[9]

J.B. wanted to end her relationship with the
    deceased. But the deceased was contrary-minded. He harassed her endlessly. With
    telephone calls. And text messages. And unannounced visits to her apartment.

[10]

J.B. knew the appellant and the co-accused Henry
    from their common involvement in different aspects of the music business.

[11]

Prior to the evening of the deceaseds death, he
    and the appellant had never met. The co-accused Henry had met the deceased before,
    but the men were not well acquainted.

The Suspicion Intensifies

[12]

Sometime prior to his death, the deceaseds
    general jealousy and suspected infidelity of J.B. focused on her friendship
    with the appellant. The deceased believed that J.B. was sleeping with the
    appellant. He bombarded her with accusatory telephone calls, texts, and
    voicemails. In one text message, the deceased threatened to kill J.B.s
    paramour.

The Afternoon Visit

[13]

Earlier on the day of the shooting, J.B. called
    the appellant. She told the appellant that she was going through some troubles and
    wanted to see him. They had not spoken for some time. The appellant agreed to
    see J.B. He called the co-accused to arrange for a ride to J.B.s apartment
    where they would hang out until the appellants previously arranged recording
    session later that day.

[14]

The appellant and Henry arrived at J.B.s
    apartment building shortly after 3:00 p.m. J.B. greeted the men and escorted
    them upstairs to her apartment. They sat around, drank, and smoked some
    marijuana. J.B. took a shower. She explained that she was afraid to do so when
    alone in the apartment for fear that the deceased would break into the
    apartment when she was in the shower.

[15]

As the appellant recalled it, J.B. explained
    that she and the deceased were fighting constantly. He manhandled her and, on
    one occasion, choked her. J.B. showed the appellant a notebook. In it was a
    letter she had written to him. J.B. proposed to sleep with the appellant to
    get over the deceased. The appellant thought that she wrote him the letter to
    avoid disclosing its contents to Henry who was in the apartment with them. He
    texted her back when?.

[16]

For the balance of the afternoon, the deceased
    repeatedly called J.B. on her cellphone. He told her that he could hear male
    voices in the background. He wanted to know who the men were. J.B. put the
    deceased on speaker phone. The calls continued. The deceased said that he was
    on his way to J.B.s apartment.

[17]

The appellant and Henry left J.B.s apartment and
    drove to the recording studio where the appellant had his appointment.

The Friends Apartment

[18]

Around 9:00 p.m. or 9:30 p.m. that evening, J.B.
    took her children to a friends apartment on another floor of the building
    where J.B. lived. She asked her friend to babysit the children because she
    (J.B.) was embroiled in another argument with the deceased. A short time later,
    J.B. returned to her friends apartment. She asked to use the friends phone
    because the deceased had taken hers. J.B. said she feared for her life. She
    expected that the deceased was going to attack her. She used her friends phone
    to call the appellant.

[19]

The deceased arrived at the friends apartment.
    He pounded on the door. He claimed that he wanted to return J.B.s cellphone. When
    J.B.s friend allowed the deceased to come into the apartment, J.B. and the
    deceased continued to argue. The deceased accused J.B. of infidelity with the
    appellant. They called each other names. The deceased paced around the
    apartment. He armed himself with a knife. He said, I am going to die tonight
    and Im not going to go like a sucker. He called members of his family.

[20]

J.B. made another telephone call from her
    friends apartment, then left the apartment. Shortly thereafter, the deceased
    left the apartment.

The Appellant Returns

[21]

While the appellant was at the recording studio,
    Henry received two phone calls from J.B. She was crying, angry, and upset. She
    and the deceased were fighting yet again. Henry offered to return to J.B.s
    apartment to check up on her. The appellant then tried to call J.B. multiple
    times. The deceased intercepted one of the appellants calls to J.B. He accused
    the appellant of having an affair with J.B. The men argued. The appellant and
    Henry decided to return to J.B.s apartment.

[22]

The appellant was armed with a handgun as he and
    Henry made their way back to J.B.s apartment. In 2011, the appellants best
    friend was shot to death on the doorstep of the appellants home. The appellant
    may have been the shooters intended target. Since that time, the appellant had
    always carried a gun. On three previous occasions, someone had shot at him. On
    another occasion, he had been hit by a stray bullet that left him with a
    permanent limp.

The Shooting

[23]

The appellant and Jeramy Henry arrived at J.B.s
    apartment building at about 11:00 p.m. The elevator door opened in the lobby.
    J.B. and the deceased were inside. The appellant and deceased exchanged words.
    Once again, the appellant denied sleeping with J.B. He got into the elevator
    with J.B. The deceased followed them into the elevator. The deceased continued
    to confront the appellant. J.B. stepped between them. Jeramy Henry walked into
    the elevator as it headed towards J.B.s apartment.

[24]

As the elevator ascended, the deceased and
    appellant continued their verbal altercation. When the elevator reached the
    floor where J.B. lived, the deceased said, as soon as we leave the elevator,
    you guys are dead. The elevator doors opened. Henry ran out into the hall. The
    appellant followed. The deceased grabbed the appellant by the hoodie and pulled
    him back. The appellant turned. He saw the deceased reach for a black handle in
    the waistband of his pants. The appellant believed the black handle was a gun.
    He pulled his own firearm and shot the deceased in the chest. The appellant
    fled. He followed Henry to his car. Henry drove them both away.

[25]

When police responded, they found a large,
    black-handled kitchen knife tucked into the deceaseds waistband.

The Arrest

[26]

Police arrested the appellant two days later.
    They seized his cellphone. Several hours after he was arrested, the appellant
    was interviewed by the lead investigator. The admissibility of the video
    recorded interview was challenged at trial. The challenge is repeated here.

The Grounds of Appeal

[27]

The appellant advances two grounds of appeal. He
    says that the trial judge erred:


i.

in conducting discussions about the contents of
    the charge to the jury by email in the absence of the appellant, rather than in
    court, on the record, in the presence of the appellant; and


ii.

in failing to find a violation of the
    implementational component of section 10(b) of the
Charter
and to
    exclude the record of the interview as evidence under section 24(2) of the
Charter
.

Ground #1: The Violation of Section 650(1) of the
Criminal Code

[28]

A first ground of appeal alleges a violation of
    the appellants statutory right and constitutional entitlement to be present throughout
    the whole of his trial. The asserted breach arises in connection with
    pre-charge conferences authorized by section 650.1 of the
Criminal Code
,

R.S.C., 1985, c. C-46,

to discuss the matters
    that should be explained to the jury and with respect to the choice of
    instructions to the jury.

[29]

Some further detail is necessary to colour in
    the background of the alleged breaches.

The Essential Background

[30]

The trial judge began drafting her charge and
    seeking the assistance of counsel about its contents before the defence case
    was completed. She indicated that she would provide drafts of her proposed
    instructions and obtain counsels assistance as the evidence continued in the
    presence of the jury. Prior to March break, the trial judge told counsel that
    she would email them her first draft for review. She indicated that counsel
    need not comment on the draft, but could do so if they wished.

[31]

During March break, the trial judge sent two
    draft charges to counsel. She made it clear that comment was not necessary, but
    permissible. Defence counsel indicated that he preferred to make the few
    comments he had on the record.

[32]

When proceedings resumed with the jury, the defence
    case continued to its conclusion. The parties prepared their closing addresses.
    They exchanged emails with the trial judge. Scheduling. Further draft charges.
    Their respective positions. Comments on each others positions.

[33]

In large measure, the pre-charge conferences
    were conducted in open court, on the record, and in the presence of the
    appellant. During one in-court pre-charge conference, the trial judge asked
    whether the statutory partial defence of provocation should be left to the jury
    for their consideration. The parties agreed that provocation was available on
    the evidence and should be left to the jury.

[34]

The parties continued to correspond by email
    about the charge to the jury. In the early evening of the day before the
    parties were to give their closing addresses, the trial judge expressed her
    concern about the availability of, hence the need to instruct the jury on,
    provocation. In an email she asked the parties about their positions on the
    issue: I would appreciate hearing from you by email asap. The judge invited
    defence counsel to respond first. Ten minutes later, defence counsel answered
    with a reversal of the position he had taken in the courtroom two days earlier.
    He wrote that there was no evidence of an act or insult of sufficient proximity
    to constitute provocation.

[35]

One night later, the trial judge invited
    immediate email responses on another subject: the appellants pre-trial
    custody. Later that evening, she circulated another draft charge with the now
    familiar request of an as soon as possible response. Counsel on both sides
    responded with submissions on manslaughter and self-defence.

[36]

Jury deliberations began. As they continued, the
    trial judge emailed the parties. She sought submissions about one aspect of the
    charge on self-defence. The trial judge asked whether she should further
    instruct the jury that, if on the evidence there could be more than one purpose
    to the appellants shooting of the deceased, they must find self-defence to be
    the sole purpose. The parties made significant submissions by email on whether
    further instructions were required. Defence counsel declined a re-charge on the
    basis that there was no evidence that the appellant shot the deceased for any
    other purpose than self-defence.

The Arguments on Appeal

[37]

The appellant contends that the email exchanges
    with the trial judge about what should be included in or omitted from the
    charge to the jury were procedural errors that caused a miscarriage of justice
    in this case.

[38]

The appellant has a statutory right and a constitutional
    entitlement to be present throughout the whole of his trial. The whole of his
    trial includes any incident of the trial process that affects the vital
    interests of an accused. And it is well established that discussions about the
    legal principles in accordance with which an accuseds guilt will be determined
    affect an accuseds vital interests. It follows, according to the appellant, that
    any discussions about the availability of a defence, or what should be said
    about an available defence, must take place in open court, in his presence, and
    on the record. Failure to do so is a procedural error.

[39]

Once a procedural error has been identified, the
    inquiry focuses on the impact of that error. More specifically, the question
    becomes whether that error has caused a miscarriage of justice. A miscarriage
    of justice occurs when the procedural error creates an appearance of unfairness
    in the trial proceedings. Actual prejudice is not required.

[40]

Some procedural errors, the appellant
    acknowledges, may not compromise the actual or apparent fairness of a trial. In
    those cases, the respondent may be able to persuade the reviewing court that
    the appellant suffered no prejudice from the error. But that is simply not this
    case.

[41]

In addition to the appearance of unfairness
    inherent in all
in absentia
discussions, actual prejudice occurred
    here. Until the
in absentia
exchange, the parties agreed that the
    statutory partial defence of provocation would be left to the jury. If
    successful, this would result in a conviction of manslaughter. But a pre-charge
    conference held off the record, outside the courtroom, and in the appellants
    absence took away provocation, as well as the possibility of a verdict based on
    provocation.

[42]

The appellant says that in their email
    discussions the trial judge and the parties appear to have concluded that to
    reach provocation the jury would necessarily have rejected self-defence. Since
    the evidence relied upon was the same for both self-defence and provocation,
    this left no air of reality for the statutory partial defence of provocation.

[43]

To reject the availability of provocation on
    this basis, the appellant submits, was simply wrong. The partial statutory
    defence of provocation and the justification of self-defence are not
    inconsistent or mutually exclusive. A person can fear imminent bodily harm and
    seek to prevent it (self-defence), but at the same time lose self-control in
    the face of the impending risk of bodily harm (provocation).

[44]

In this case, the jury was entitled to be
    selective about the appellants testimony. They could have disbelieved his
    claim of a confrontation in the hallway, but accepted that the deceased
    threatened him in the elevator. This threat would satisfy the objective element
    of provocation. Or the jury could have rejected the appellants evidence, but
    accepted the testimony of the co-accused to the same effect. This finding would
    also have satisfied the objective test for provocation.

[45]

The appellant argues further that the jury could
    have rejected self-defence on the basis that shooting the deceased was
    disproportionate to the deceaseds conduct of reaching for the waistband of his
    pants and grabbing the appellants hoodie. Were this the case, the statutory
    partial defence of provocation was available and could have served to reduce what
    otherwise would have been murder to manslaughter.

[46]

The appellant accepts that the bulk of the
    pre-charge conference was conducted as it should have been: in court, on the
    record, in the presence of the appellant. However, critical substantive and
    vital issues were discussed and resolved by email. The statutory partial
    defence of provocation was taken off the table the evening before closing
    addresses and the charge. The appellant was not present. The issue was not revisited
    in open court, on the record, in the appellants presence. This procedural
    error cannot be salvaged by the proviso in section 686(1)(b)(iv).

[47]

The respondent begins with a submission that any
    email communications occurred within permissible limits. For the most part, the
    email exchanges involved providing counsel with successive drafts of the
    proposed instructions, pointing out changes made and explaining that each
    version would serve as the working copy for their in-court discussions. The
    preliminary nature of these discussions did not offend section 650(1) of the
Criminal
    Code
and, in any event, did not cause or contribute to a miscarriage of
    justice.

[48]

The email discussion about the potential
    unavailability of provocation was preceded by a question in open court from the
    trial judge:

Is there provocation? Its never been raised.

The response of the Crown, yes,
    should not be taken as an acknowledgment that there was an air of reality to
    the defence or that it should be put to the jury. The response of defence
    counsel was that manslaughter was available on the basis that the appellant did
    not intend to kill the deceased. Defence counsel submitted that if manslaughter
    based on lack of intent were left then provocation needs to be included. It
    doesnt need to be detailed but just,  what was said in the elevator or the
    utterances that were made before, which would reduce his state of mind from
    intentionality to manslaughter.

[49]

As the record reveals, the respondent accepts
    that the trial judge, while putting together Draft 6 of her proposed jury
    instructions the day before closing addresses were to be given, invited counsel
    to respond by email to her inquiry about the availability of provocation as a
    defence. She sought an immediate response because the answers of counsel
    affected the completion of the charge and the closing addresses scheduled for
    the next day. Defence counsel responded. He explained why provocation should
    not be included in the charge to the jury.

[50]

After defence counsel responded to the trial
    judges question about provocation, the trial judge provided a further draft of
    her proposed charge. The draft omitted any reference to provocation. The judge
    invited submissions the following day before closing addresses. Defence counsel
    made no submissions.

[51]

In any event, the respondent continues, there
    was no air of reality to the statutory partial defence of provocation in this
    case. What was missing was evidence of a wrongful act or insult and of a sudden
    response that could ground the defence. Neither the deceaseds comment to the
    appellant and Henry that they would both be dead when the elevator doors
    opened, nor the deceaseds grab of the appellants hoodie could qualify. The
    shooting did not happen suddenly. Nor was the shooting in response to the
    threat. As the appellant made clear, he shot because he feared for his life: It
    was a life or death situation.

[52]

In the alternative, the respondent says, any
    procedural error that may have occurred because of the appellants exclusion is
    saved harmless by the proviso of section 686(1)(b)(iv).

[53]

The respondent submits that the exclusion was
    brief. The request for comment did not prompt an objection from defence
    counsel. The availability of provocation had already been canvassed in open
    court. A further draft charge was provided. Counsel were invited to discuss it
    prior to their closing addresses the following day. Defence counsel made no
    objection either to the removal of provocation as a defence or to the emailed
    discussion about it the previous evening. Not before and not after the charge
    was delivered. Indeed, defence counsel made it clear that the sole catalyst for
    the shooting was in defence of the appellants own life. The discussion by
    email did not cause any actual or apparent unfairness to the trial process.

The Governing Principles

[54]

Little controversy exists about the principles
    that inform our decision on this ground of appeal. However, the parties are at
    odds about the result that should follow from the application of those
    principles to the circumstances of this case.

[55]

The appellant was statutorily required to be
    present for the whole of his trial under section 650(1) of the
Criminal
    Code
, absent any applicable exception under section 650(2). No statutory
    exception permitting or requiring the appellants exclusion applies:
R. v.
    Simon
, 2010 ONCA 754, 104 O.R. (3d) 340, at para. 114, leave to appeal
    refused, [2010] S.C.C.A. No. 459.

[56]

Whether an aspect or procedural incident of or
    associated with a criminal trial is part of the trial depends upon whether: what
    occurred involved or affected the vital interests of the accused; or whether
    any decision made had a bearing on the substantive conduct of the trial. See
Simon
,
    at para. 116;
R. v. Hertrich, Stewart and Skinner
(1982), 67 C.C.C.
    (2d) 510 (Ont. C.A.), at p. 539, leave to appeal refused, [1982] S.C.C.A. No.
    124;
R. v. Hassanzada
, 2016 ONCA 284, 130 O.R. (3d) 81, at para. 128.

[57]

A pre-charge conference, authorized but not
    required under section 650.1, is held to discuss the matters that should be
    explained to the jury and the choice of instructions to the jury. The
    subject-matter discussed at the pre-charge conference involves and affects the
    vital interests of the accused. It follows that the pre-charge conference is
    part of the accuseds trial:
Hassanzada
, at para. 129;
R. v. E.
    (F.E.)
, 2011 ONCA 783, 108 O.R. (3d) 337, at para. 46. And it also
    follows, subject to the exceptions in section 650(2), that the accused is not
    only entitled, but required to be present during the conference:
Hassanzada
,
    at para. 129;
E. (F.E.)
, at paras. 46-47.

[58]

Since pre-charge conferences are part of an
    accused persons trial at which they are required by section 650(1) of the
Criminal
    Code
to be present, those conferences are
required
to be held:


i.

in the courtroom;


ii.

on the record;


iii.

in the presence of the accused.

See
Simon
, at para. 137;
Hassanzada
,
    at para. 131.

[59]

This is not the first case in which an appellant
    has challenged the use of email to conduct substantive discussions about the
    contents of the charge to the jury. In prior decisions we have indicated that
    the use of email to provide counsel with copies of proposed jury instructions
    does not offend section 650(1) of the
Criminal Code
. In those same
    decisions, we have made it equally clear that discussions about the content of
    those draft instructions are not to take place by email. These discussions,
    whether they solicit or offer submissions about charge content, affect and
    involve the vital interests of the accused and must take place in the actual
    presence of the accused. Section 650(1) requires it:
Simon
, at para. 137;
Hassanzada
, at paras. 130-131.

[60]

Few words are required to explain the combined
    effect of sections 650(1) and 650.1 of the
Criminal Code
. In court. On
    the record. In the presence of the accused. No more is required. Nothing less
    will do. Section 650(2) contains no email exception to the shall be present in
    court during the whole of his or her trial requirement of section 650(1):
Simon
,
    at para. 137;
Hassanzada
, at para. 131.

[61]

Where substantive pre-charge conference
    discussions take place outside the courtroom and in the absence of the accused,
    whether they are conducted in judicial chambers or elsewhere or by email, a
    procedural error has occurred. There is a violation of 650(1) of the
Criminal
    Code
. The result will be a new trial unless what occurred can be saved by
    the proviso in section 686(1)(b)(iv) of the
Criminal Code
:
E. (F.E.)
,
    at para. 29;
Simon
, at paras. 119, 122.

[62]

The discretion to dismiss an appeal under
    section 686(1)(b)(iv) is engaged when three conditions are met:


i.

a procedural irregularity occurred at trial;


ii.

the trial court had jurisdiction over the class
    of offence of which the appellant was convicted; and


iii.

the court of appeal is of the opinion that the
    appellant suffered no prejudice because of the procedural irregularity.

See,
E. (F.E.)
, at para. 30.
    Provided the conditions precedent to the operation of the section have been
    met, the section may save harmless a breach of section 650(1) of the
Criminal
    Code
:
Simon
, at para. 122;
E. (F.E.)
, at para. 31. See
    also,
R. v. Cloutier
(1988), 43 C.C.C. (3d) 35 (Ont. C.A.), at p. 49,
    leave to appeal refused, [1989] S.C.C.A. No. 194.

[63]

The phrase jurisdiction over the class of
    offence in section 686(1)(b)(iv) refers to the classes of offences described
    in sections 468, 469, and 785 of the
Criminal Code
. The offence with
    which we are concerned here  murder  is an offence listed in section 469 of
    the
Criminal Code
. It is an offence within the exclusive trial
    jurisdiction of the superior court of criminal jurisdiction:
R. v.
    Esseghaier
, 2021 SCC 9, at paras. 42, 47, 48.

[64]

If a reviewing court is satisfied that what
    occurred was a procedural error and that the trial court had jurisdiction over
    the offence of which the appellant was convicted, the proviso inquiry turns its
    focus to the issue of whether the appellant suffered no prejudice:
Esseghaier
,
    at para. 50. The precise reach of the proviso in section 686(1)(b)(iv) is
    without clear definition:
Esseghaier
, at
    paras. 51-53. However, it has been held that the term prejudice encompasses
    at least:


i.

prejudice to the ability of an accused to
    properly respond to the case for the Crown and to receive a fair trial; and


ii.

prejudice to the appearance of the due
    administration of justice.

See,
E. (F.E.)
, at para. 33.
    Whether section 686(1)(b)(iv) will hold harmless the procedural irregularity
    requires a close examination of all the circumstances including but not only
    the factors listed in
Simon
, at para. 123;
E. (F.E.)
, at
    para. 36.

[65]

The standard we are to apply to determine the
    result of the prejudice inquiry under section 686(1)(b)(iv) has not yet been authoritatively
    settled:
Esseghaier
,
at
    para. 52.
However, an appellant is not
    required positively to demonstrate prejudice to foreclose the application of
    the proviso. If the Crown satisfies the appellate court that the procedural
    error caused the appellant no prejudice, the proviso is available to dismiss
    the appeal.

The Principles Applied

[66]

After a careful consideration of all the
    circumstances, I am not persuaded that this ground of appeal can prevail. This
    despite the trial judges failure to follow binding precedent in favour of a
    course that put at risk the integrity of the trial process.

[67]

First, the procedural error.

[68]

The pre-charge conference affects the vital
    interests of an accused. As a result of what is said there, decisions are made
    about the content of the final instructions to the jury. What will be said and
    how it will be said. And what will not be included. Such as defences. Like
    provocation. Justifications, like self-defence. And excuses.

[69]

Procedural incidents of the trial process, such
    as pre-charge conferences, are part of an accuseds trial. It follows from the statutory
    requirement of section 650(1) of the
Criminal Code
, as well as every
    accused persons constitutional entitlement to be present at their trial, that
    the appellant was entitled to be present for the pre-charge conference. The
    entire pre-charge conference when the availability of the statutory partial
    defence of provocation was discussed. No statutory exception permitted his exclusion
    when the subject of the availability of provocation was discussed and decided.
    Exclusion of the appellant from this discussion contravened section 650(1) of
    the
Criminal Code
.

[70]

Likewise, the discussion about further
    instructions on self-defence while the jury was deliberating. Self-defence was
    the principal defence advanced at trial. Any discussions about its availability
    and about what would be said or not said about it affected the appellants
    vital interests. They were part of his trial. He was statutorily required and
    constitutionally entitled to be there. His absence, the product of a judicial
    decision to discuss the issue by email, breached section 650(1). No exception
    applied.

[71]

These were unforced, needless errors, heedless
    of the statutory requirement and constitutional entitlement of an accuseds
    presence during the whole of his or her trial.

[72]

The appellant acknowledges that for the most
    part, the pre-charge conferences were held in open court, on the record, and in
    his presence. This included the initial discussion about the statutory partial
    defence of provocation.

[73]

The trial judge raised the issue of provocation.
    She pointed out that no one had raised it thus far in their discussions about
    the charge. Defence counsel pointed out that since the included offence of
    manslaughter was being left to the jury, provocation should be included as well
    because it (provocation) reduced the state of mind of the shooter. This is not
    so. Manslaughter committed under provocation is voluntary manslaughter,
    sometimes called mitigated murder. As the introductory language of section 232(1)
    of the
Criminal Code
provides  Culpable homicide that otherwise
    would be murder  the statutory partial defence of provocation has nothing to
    do with the fault element of murder. And whether voluntary manslaughter should
    be left to a jury depends on whether there is an air of reality to the defence
    which is unrelated to whether involuntary manslaughter  an unlawful killing
    unaccompanied by the fault element required for murder  should be included in
    the charge.

[74]

When the trial judge first raised the issue of provocation,
    pointing out that no one had said anything about it earlier, the trial Crown
    simply responded yes. In the absence of any further affirmation that provocation
    would be left to the jury, I am not prepared to conclude that her single word
    response meant that she thought there was a basis for submitting provocation to
    the jury.

[75]

The exclusion of the appellant from the
    discussion on provocation came about early in the evening before counsel were
    to address the jury.

[76]

The trial judge sent an email to counsel. She
    asked whether there was an air of reality to provocation. She appeared to be of
    the view that provocation should not be included in the charge since
    provocation was based on the same evidence as self-defence and self-defence was
    being left to the jury . She asked counsel to respond, the defence first, asap.

[77]

The defence of provocation and the justification
    of self-defence are not mutually exclusive. The same evidence may support, said
    otherwise, provide an air of reality for each. Provided the evidence satisfied
    the air of reality standard for each, then each should be left to the jury.

[78]

In a similar way, most discussions about
    self-defence were held in court, in the appellants presence and on the record.
    But once again, while the jury was deliberating, the trial judge began and
    continued an email exchange with counsel about further instructions on self-defence.
    She directed counsel to respond asap by email. In the end, no further
    instructions were provided.

[79]

As we have already seen, our authority to
    dismiss an appeal despite a procedural irregularity at trial requires that the
    trial court has jurisdiction over the class of offence with which the appellant
    was charged and that we be of the opinion that the appellant suffered no
    prejudice as a result of the error. Since no issue arises about the
    jurisdiction of the superior court of criminal jurisdiction over the offence
    with which the appellant was charged  murder  our analysis must focus on the
    nature and extent of any prejudice caused by the irregularity.

[80]

Several factors taken together persuade me that
    the appellant was not prejudiced by the procedural irregularities that occurred
    here.

[81]

First, the nature and extent of the exclusions.

[82]

Each exclusion was initiated by the trial judge
    to discuss issues about the contents of the charge to the jury. The first was
    prior to the delivery of the charge. It was followed by a further draft of the
    charge. Counsel had an in-court opportunity before their closing addresses to
    make submissions about the exclusion of provocation. Defence counsel did not do
    so. This is not a case, as in
E. (F.E.)
, where the entirety of the
    pre-charge conference was conducted in chambers. In this case, there was also a
    record of what occurred. The exclusions do not appear to have been lengthy.

[83]

The second exclusion occurred while the jury was
    deliberating, again initiated by the trial judge. Counsel responded by email as
    the trial judge requested with submissions about further instructions on
    self-defence. No further instructions were given to the jury. This exchange
    should not have taken place over email. The jury is deliberating. They are in
    the courthouse. Likewise, the accused, and the trial judge. Counsel are
    reachable. Notify counsel. Re-assemble the court in the absence of the jury.
    Discuss the issue. Decide what to do.

[84]

The email communications and requests by the
    trial judge would seem to have been a deliberate choice of a method of
    communication other than that required by section 650(1) of the
Criminal
    Code
. Perhaps the trial judge was concerned about ensuring adherence to a
    schedule provided to the jury about the concluding aspects of the trial.
    Certainty is desirable. The progress of a trial in its waning moments should
    not be unduly delayed. But the solution is not to ignore mandatory statutory
    requirements such as section 650(1) of the
Criminal Code
. There is no
    email exception.

[85]

Second, the position of counsel at trial.

[86]

Prior to the instances to which objection is
    taken, defence counsel did reject a request by the trial judge to respond to an
    issue raised by the trial judge by email. Defence counsel then stated his preference
    to respond in the courtroom. However, in neither instance to which objection is
    taken did he, despite his years of experience, object to the method of response
    requested, express any concerns about it in open court, or make any further
    submissions about either provocation or self-defence.

[87]

Third, the impact on trial fairness.

[88]

Neither the substance nor the timing of the
    email discussions compromised the appellants right to make full answer and
    defence. Neither discussion related to a tactical decision the defence was
    required to make. The initial discussion occurred after prior in-court
    conferences about the substance of the charge to the jury as the defence case
    was being led. The appellant had already decided to testify. The discussion
    about the availability of provocation took place after the evidence had been
    completed. All that remained were the addresses of counsel and the charge.
    Neither had anything to do with the substantive contents of the appellants
    primary defence  self-defence.

[89]

Further, the subject matter of the discussions.
    In each case, the discussion involved jury instructions. Whether the statutory
    partial defence of provocation should be left for consideration by the jury.
    Whether the instructions on self-defence required further elaboration. Each
    related to a subject about which it was unrealistic to conclude the appellant
    could have assisted counsel had he been present.

[90]

Moreover, there was no air of reality to the
    partial statutory defence of provocation. The appellants evidence failed to
    provide a basis upon which the jury could find or have a reasonable doubt that
    he lost self-control and acted on the sudden. The appellant testified he acted
    out of
fear
upon seeing a black object in the back of the deceaseds
    pants. He never suggested he acted out of anger or rage, let alone to the point
    that he lost self-control  both precursors to provocation. While the jury
    could have rejected the parts of the appellants testimony inconsistent with
    provocation, the remaining evidence was insufficient to ground a coherent
    narrative of provocation. As such, the omission of provocation in the jury
    instruction did not prejudice the appellant. Neither does the appellant advance
    such an error as a separate ground of appeal.

[91]

Meanwhile, under the defence of self-defence,
    there was no evidence that there was more than one purpose for which the
    appellant shot the deceased. The absence of any recharge on this point did not prejudice
    the appellant.

[92]

For these reasons, I would reject this ground of
    appeal.

[93]

This is not the first time a trial judge has
    conducted part of the pre-charge conference in the absence of the accused. Nor
    is it the first time that an accused has been excluded from some other aspect
    of the trial process where their vital interests are involved. When they occur
    and are raised on appeal, the integrity of the jurys verdict is in jeopardy.
    And unnecessarily so. These errors are unforced.

[94]

As we have said in the past and reiterate today,
    no breach of section 650(1) of the
Criminal Code
occurs by email
    transmission to counsel of drafts of proposed jury instructions. But as we have
    also said in the past and repeat today with emphasis, initiating and receiving
    by email submissions about the subject-matter contained in or omitted from
    final instructions does offend section 650(1) of the
Criminal Code
.
    The reason is simple. Pre-charge conferences under section 650.1 of the
Criminal
    Code
, indeed any discussions about what should be explained to the jury
    and the choice of instructions to be given, affect an accuseds vital
    interests, thus are part of the accuseds trial. Section 650(1) is engaged. The
    accused must be present unless an applicable exception applies. Use of email is
    not an exception. The message is in the medium. Open court. On the record. In
    the presence of the accused.

[95]

The circumstances of this case illustrate the
    comparative facility with which the issues raised by the trial judge could have
    been resolved without offending section 650(1) of the
Criminal Code
.

[96]

The trial judge became concerned about the
    inclusion of an instruction on provocation early in the evening before counsel
    were to address the jury. Schedule discussion of the issue prior to the jurys
    return the following day. If the jury cannot be advised in advance of their
    return to attend later than scheduled, arrange for refreshments for them at the
    time they are scheduled to return. In the meantime, sort out the provocation
    issue and the timing of the balance of the days events with counsel (and the
    jury if necessary) and proceed accordingly.

[97]

The self-defence issue arose while the jury was
    deliberating. It was a simple matter to notify counsel that an issue had arisen
    that required their attendance in the courtroom. With all participants in the
    trial present in the courtroom, except the jury, the self-defence issue could
    be raised, discussed, and decided. If necessary, the jury could be recalled for
    further instructions.

Ground #2: The Implementational Infringement of Section
    10(b)

[98]

The second ground of appeal challenges the trial
    judges ruling admitting as evidence a video recorded interview of the
    appellant by the lead investigator, D/Sgt. Idsinga.

[99]

At trial, the appellant challenged the
    admissibility of the interview on both voluntariness and section 10(b) grounds.
    At the conclusion of a blended
voir dire
, counsel abandoned the
    voluntariness challenge, but pursued the claim based on an alleged infringement
    of the implementational component of section 10(b).

[100]

The trial judge concluded that there had been no breach of the
    implementational component of section 10(b). This permitted the Crown to
    cross-examine the appellant on the interview as a prior inconsistent statement
    should the appellant testify in a contrary way. The trial judge then admitted
    the statement as evidence of after-the-fact conduct. This permitted the Crown
    to adduce it as part of her case in-chief.

The Essential Background

[101]

Some further background about what happened between the appellants
    arrest and his interview by D/Sgt. Idsinga will provide the background
    necessary to evaluate the claim of error advanced here.

The Arrest

[102]

The appellant was arrested at 7:30 p.m. on September 10, 2012, two
    days after he shot the deceased to death. Police seized his cellphone incident
    to arrest. The arresting officers, who were not involved in the murder
    investigation, advised the appellant of the reason for his arrest and explained
    his right to counsel. The appellant was told that he had the right to call a
    lawyer and also the right to free legal advice from duty counsel associated
    with Legal Aid. When asked whether he wished to call a lawyer then, the
    appellant said Im telling you. I dont understand. Whats going on?. He did
    not respond directly to the question whether he wished to call a lawyer at that
    time. The appellant appeared shocked when the officer read the police caution.
    The arresting officer was involved with the appellant for about two to three
    minutes. At the conclusion of the process of arrest, the officer said he didnt
    know what the appellant wanted to do about speaking to a lawyer or duty
    counsel. The officers uncertainty arose from the appellants failure to answer
    the officers question about calling a lawyer or duty counsel.

Transportation to 55 Division

[103]

The arresting officer turned the appellant over to other officers
    who were in the area on another call. These officers were advised of the
    reasons for the appellants arrest and assigned the task of transporting the
    appellant to 55 Division, the precinct in which the shooting occurred. One of
    the officers, P.C. Hewitt, re-advised the appellant of his right to counsel.
    The appellant kept asking what this was all about. P.C. Hewitt could offer no
    assistance on this issue. He was not involved in the investigation and had
    received no information about it beyond being advised that the allegation was
    one of murder.

[104]

The transporting officers seated the appellant, who was handcuffed,
    in the back of a police cruiser. P.C. Hewitt, in explaining to the appellant
    his right to counsel, asked Do you wish to call a lawyer now?. The appellant
    responded, I might as well, I dont even know whats going on, but obviously a
    lawyer is gonna have to deal with this matter. The appellant explained that he
    did not have a particular lawyer that he wished to call because he did not know
    a lawyer. The officer asked about duty counsel. The appellant agreed that he
    would have to speak with duty counsel.

[105]

P.C. Hewitt advised the appellant that he (the appellant) would have
    a chance to speak to a lawyer after they arrived at the police station. The
    officer was aware of his obligation to hold off asking any questions of the
    appellant because of the appellants wish to speak with a lawyer. P.C. Hewitt was
    unaware of the details of the investigation so he could not explain them to the
    appellant or ask him any questions about it.

The Booking Procedure

[106]

More than an hour later, the transporting officers and the appellant
    arrived at 55 Division. The booker was unaware of the appellants request to
    speak to a lawyer. He told the appellant that he could use the telephone. If he
    wished to do so, the appellant was to speak with one of the transporting
    officers because it was their responsibility, not that of the booker, to
    facilitate exercise of the right to counsel. The appellant did not ask to use
    the telephone in the booking area.

The Interview Room

[107]

After the booking process had been completed, P.C. Hewitt escorted
    the appellant to the interview room. The officer advised the lead investigator,
    D/Sgt. Idsinga, of what had occurred thus far. This included the appellants
    response when advised of his right to counsel. D/Sgt. Idsinga, aware of the
    appellants wish to speak with counsel but that he had not yet done so, told
    P.C. Hewitt that he (Idsinga) would take it from there.

The Interview with Detective Sergeant Idsinga

[108]

Shortly before 10:00 p.m. on the day of his arrest, the appellant
    was in an interview room at 55 Division. He had been left there by transporting
    officers to await the arrival of investigators from Homicide, D/Sgt. Idsinga
    and Det. Ogg.

[109]

When D/Sgt. Idsinga entered the interview room, he introduced
    himself and explained that he wanted to complete some paperwork concerning the
    arrest and to get the appellant in contact with a lawyer if the appellant
    wished to talk to a lawyer.

[110]

D/Sgt. Idsinga then continued:

Idsinga: Okay? Its my duty to inform you that
    you have the right to retain and instruct counsel without delay. You have the
    right to telephone any lawyer you wish. You also have the right to free advice
    from a legal aid lawyer. If you are charged with an offence, which youre going
    to be, you may apply to the Ontario Legal Aid Plan for assistance. 1-800-265-0451
    is a toll free number that will put you in contact with a legal aid duty
    counsel lawyer for free legal advice right now. Do you understand that?

Burnett: Yes sir.

Idsinga: Do you wish to call a lawyer right
    now?

Burnett: I guess so. Like I dont know whats
    going on.

Idsinga: Okay. Well  I can explain to you
    whats going [on] but if you want to talk to a lawyer first you can talk to a
    lawyer first.

Burnett: I dont like I said you might as well
    explain to me but I really dont know whats going on.

[111]

Over the next few minutes, D/Sgt. Idsinga read the primary and
    secondary police cautions to the appellant and explained that the appellant
    need not answer any questions the officer might ask him. The appellant repeated
    his lack of understanding about what was going on. He was prepared to listen to
    what the officer had to say. D/Sgt. Idsinga continued the discussion:

Idsinga: The decision is y-yours Andrew. I
    can take you to the other room; we have a video camera in there. Ill sit down
    and show you some things  and explain to you whats going on.

Burnett: Furth-um ---

Idsinga: Or we can call a lawyer first. Or we
    can call a lawyer afterwards at any point in time if you wanna (sic) call a
    lawyer we can call a lawyer.

Burnett: Ah can I see what youre talking
    about and then like, I just wanna (sic) understand whats going on so

Idsinga: Okay.

Burnett: --- if you could help me understand
    then I could help you with whatever you need. I just dont understand what go
    on  whats going on.

Idsinga: So, do you wanna (sic) see what Im
    talking about ---

Burnett: Please and thank you.

Idsinga: --- or  we call a lawyer?

Burnett: Please and thank you.

[112]

The officers and the appellant left the interview room and entered a
    video suite. There, D/Sgt. Idsinga repeated what he had earlier said about the
    right to counsel and asked the appellant whether he wanted to call a lawyer at
    that time. The appellant said that he didnt have a lawyer on file and
    wondered whether it would be possible for a lawyer to come to the police
    station. D/Sgt. Idsinga explained that lawyers did not come to the police
    station. The officer offered to put the appellant in contact with a lawyer at
    that very moment. The appellant said that he wanted to hear first whats going
    on before talking to a lawyer. The colloquy concluded:

Idsinga: You have to understand that you dont
    have to say anything to me. You dont have to answer any of my questions. And
    you can  call a lawyer  a free lawyer for l - free legal advice any time you
    want.

Burnett: Okay.

Idsinga: Including right now.

Burnett: Okay.

Idsinga: Okay? You understand all that?

Burnett: Yes sir.

Idsinga: Okay. Do you wanna (sic) call a
    lawyer right now?

Burnett: No, not as right now sir.

The Ruling of the Trial Judge

[113]

The trial judge gave written reasons for her conclusion that the
    video recorded interview had not been obtained in breach of the implementational
    component of section 10(b) of the
Charter
. The appellant had been
    advised on five separate occasions of his right to counsel. He had been read
    the primary and secondary caution and told that he was under no obligation to
    speak to the police. He was aware of the nature and extent of his jeopardy and of
    his right to speak to a lawyer, including duty counsel. He spoke freely to
    investigators. He waived his right to retain and instruct counsel without delay
    because he wanted to find out the case against him.

[114]

The trial judge was satisfied that the implementational requirement
    in section 10(b) did not arise at all until the appellant arrived at 55 Division.
    It was not appropriate for the transporting officers to turn off the in-car
    recording devices to permit the appellant to call counsel from the backseat of
    a police cruiser. Nor was it appropriate for either transporting officer to
    give the appellant his (the officers) own cellphone to make the call.

[115]

During the booking procedure, the appellant was told that he could
    make reasonable use of the telephone in a room adjacent to the booking hall. To
    do so, the appellant only needed to ask the transporting officers. He made no
    such request.

[116]

At the outset of his discussions with D/Sgt. Idsinga, the appellant
    said he would call a lawyer because he did not know what was going on. But he
    later changed his mind because he wanted to find out what the officer would
    tell him about the case first. D/Sgt. Idsinga made it clear to the appellant
    that he could call a lawyer anytime he wished. But the appellant never did so
    and never asked that he be permitted to do so.

[117]

The trial judge was satisfied that the appellant waived his right to
    counsel before he spoke to police. From the outset, the appellant repeatedly
    sought information from the police. D/Sgt. Idsinga made it clear that he would
    provide the appellant with information. But at the same time, he asked the
    appellant whether he wished to speak with a lawyer before hearing what the
    officer had to say. The appellant clearly and unequivocally declined the
    opportunity. The appellants choice was free, voluntary, and fully informed.

The Arguments on Appeal

[118]

The appellant contends that at trial the parties accepted that the
    appellant expressed his desire to speak to counsel shortly after his arrest at
    7:30 p.m. At the station, he was paraded and booked in an area where there was
    private access to a telephone. Yet no one made any attempt to put him in
    contact with a lawyer in compliance with his earlier express request. Instead,
    he was shunted off to an interview room to await the arrival of investigators
    from Homicide.

[119]

When D/Sgt. Idsinga entered the interview room, he knew that the
    appellant had asked to speak to a lawyer and that he had not been provided with
    that opportunity. Yet, D/Sgt. Idsinga did nothing to implement the appellants
    request. Instead, the officer simply repeated the
Charter
advice and
    cautions already administered and asked questions the appellant had already
    answered.

[120]

When an accused or detainee invokes their right to speak to a
    lawyer, the appellant says, the police are required to take steps to assist
    them in doing so without delay. It is only where compelling circumstances
    exist, such as concerns about officer or public safety, that a delay can be
    justified. This exception cannot be invoked, as a matter of routine, rather can
    only be established on a case-specific consideration of the circumstances of
    the case. None of those circumstances existed here.

[121]

In this case, the appellant continues, the transporting officers
    could have facilitated his request by calling Legal Aid, turning off the
    recording devices in their cruiser, and allowing him to speak with duty
    counsel. And at the police station, 90 minutes later, facilities were available
    to give effect to the appellants request, but nobody facilitated the call.
    Instead, he was simply taken to an interview room to await investigators. No
    telephone was ever provided.

[122]

When D/Sgt. Idsinga arrived at the interview room, he was well aware
    of the appellants request to speak to a lawyer and that the request had not
    been implemented. Yet, the senior investigator did nothing to facilitate the
    unfulfilled request. Instead, D/Sgt. Idsinga simply engaged in a back-and-forth
    with the appellant about disclosure of the police investigation, on the one
    hand, and the right to speak to a lawyer, on the other. These serial breaches
    warranted exclusion of the interview as evidence.

[123]

The respondent resists the appellants claim of constitutional infringement.
    No breach of the implementational component of section 10(b) occurred here. The
    police were not required to facilitate a telephone call the appellant was not
    interested in making. His purpose was in finding out the case against him, not
    in speaking to duty counsel or any other lawyer.

[124]

The appellant was repeatedly advised of the reasons for his arrest
    and his right to counsel, cautioned that he need not speak to the police, and
    told about the evidentiary consequences of doing so. This occurred on arrest,
    when transported to the station, and when he was booked at 55 Division. He
    indicated to the transporting officers that he might as well speak to a
    lawyer and I guess Im gonna have to speak to duty counsel since he didnt
    know any lawyers. He suggested that he could do so when they got to the police
    station.

[125]

At 55 Division, the Acting Sergeant reiterated the appellants
    section 10(b) rights and explained that he was entitled to reasonable use of
    the telephone. All the appellant had to do, the officer said, was to tell one
    of the transporting officers or the investigating officer that he (the
    appellant) wanted to use the phone. The appellants only request was to speak
    with his mother. An officer facilitated that call. At no time did the appellant
    ask anyone at the booking desk or one of the transporting officers for use of
    the phone to call a lawyer or duty counsel.

[126]

When D/Sgt. Idsinga appeared in the interview room and later in the
    video suite, he was aware of the appellants prior request to speak to a lawyer
    or duty counsel. He reiterated the appellants rights under section 10(b) and
    inquired about his previous request to call a lawyer. The appellant persisted
    in his claim that he was unaware about what was going on. Despite D/Sgt.
    Idsingas offer to call a lawyer or duty counsel, the appellant demurred. He
    wanted to find out the details of the police investigation first before he
    spoke to a lawyer.

[127]

The respondent accepts that when a detainee invokes their right to
    obtain legal advice from a lawyer or duty counsel under section 10(b), the
    police are required to facilitate that request at the first reasonable
    opportunity and to hold off taking any further investigative steps to elicit evidence
    from the detainee until the request has been fulfilled.

[128]

In this case, the respondent points out, it was never suggested at
    trial that the appellant should have been permitted access to an officers own cellphone
    to call duty counsel from the police cruiser with the video and audio recording
    equipment in the cruiser disengaged. Likewise, the appellants own cellphone
    could not be used because he had removed the SIM card from it. At trial,
    counsel conceded that the first reasonable opportunity was at 55 Division.

The Governing Principles

[129]

This ground of appeal involves one aspect of the right to counsel
    guaranteed by section 10(b) of the
Charter
. No issue arises about the
    adequacy of the information provided to the appellant about the reasons for his
    arrest as required by section 10(a) of the
Charter
. Nor is there any
    complaint about the adequacy of the advice offered to the appellant about his
    right to retain and instruct counsel without delay as mandated by section 10(b)
    of the
Charter
. The failure asserted here has to do with the
    implementational component in section 10(b), the duty settled on police to
    ensure that arrested persons are given a reasonable opportunity to exercise
    their right to retain and instruct counsel without delay.

[130]

The purpose of the rights under section 10(b) is to allow a detainee
    or an arrested person not only to be informed of their rights and obligations
    under the law, but also, of equal and perhaps greater importance, to obtain
    advice about how to exercise those rights:
R. v. Taylor
, 2014 SCC 50,
    [2014] 2 S.C.R. 495, at para. 21, citing
R. v. Manninen
, [1987] 1
    S.C.R. 1233, at pp. 1242-1243. Access to legal advice ensures that an
    individual who is at once under control of the state and in legal jeopardy is
    able to make a choice whether to speak to police investigators that is both
    free and informed:
Taylor
, at para. 21, citing
R. v. Sinclair
,
    2010 SCC 35, [2010] 2 S.C.R. 310, at para. 25. And the right to retain and
    instruct counsel without delay is also meant to help detainees regain their
    liberty, as well as guard against the risk of involuntary or inadvertent self-crimination:
Taylor
, at para. 21, citing
R. v. Suberu
, 2009 SCC 33, [2009]
    2 S.C.R. 460, at para. 40.

[131]

The arrest or detention of the person imposes three corresponding
    duties on the police:


i.

An
informational
duty to inform the
    detainee of their right to retain and instruct counsel without delay and of the
    existence and availability of legal aid and duty counsel;


ii.

An
implementational
duty if the
    detainee has indicated a desire to exercise this right, to provide the detainee
    with a reasonable opportunity to exercise their right, absent urgent and
    dangerous circumstances; and


iii.

A duty to
hold off
from eliciting
    evidence from the detainee until they have had that reasonable opportunity,
    absent urgent or dangerous circumstances.

See,
Taylor
, at para. 23,
    citing
R. v. Bartle
, [1994] 3 S.C.R. 173, at p. 192;
Manninen
,
    at pp. 1241-1242.

[132]

The implementational duty  the duty to facilitate access  arises
    immediately upon the detainees request to speak to counsel. Arresting officers
    are constitutionally required to facilitate the access requested at the first
    reasonably available opportunity. Where delay has occurred, the burden is on
    the Crown to demonstrate in the specific circumstances of the case that the
    delay was reasonable:
Taylor
, at para. 24.

[133]

To facilitate access to counsel at the first reasonably available
    opportunity includes allowing the detainee on request to use a telephone for
    that purpose if one is reasonably available:
Taylor
, at para. 25,
    citing
Manninen
, at p. 1242.

[134]

This implementational duty does not create a corresponding right
    of the detainee to use a specific phone. Nor does it impose a legal duty on
    police to provide their own cellphone to a detainee. What this aspect of
    section 10(b) does is to guarantee that the detainee will have access to a
    phone to exercise their right to counsel at the first reasonable opportunity:
Taylor
at paras. 27-28.

[135]

As for the duty to hold off, until the requested access to counsel
    has been provided,

police are required to
    refrain from taking further investigative steps to elicit evidence from the
    detainee:
Taylor
, at para. 26;
R. v. Willier
, 2010 SCC 37,
    [2010] 2 S.C.R. 429, at para. 33. The implementational duty and the obligation
    to hold off are contingent on the detainees reasonable diligence in attempting
    to contact counsel. What constitutes reasonable diligence depends on the
    particular circumstances of each case:
Willier
, at paras. 30, 33;
Sinclair
,
    at para. 27;
R. v. Black
, [1989] 2 S.C.R. 138, at pp. 154-155.

The Principles Applied

[136]

I would not give effect to this ground of appeal. I am satisfied
    that the trial judges conclusion not to exclude the video recorded interview
    on the basis of an infringement of the implementational component of section
    10(b) does not reflect error.

[137]

The appellant was arrested at 7:30 p.m. by officers who were not
    involved in the homicide investigation. On arrest, a pat down search took
    place. The arresting officer seized the appellants cellphone. Apprised of the
    reason for his arrest and his right to counsel, the appellant insisted that he
    did not know what was going on or what the officers were talking about. This
    would become a constant refrain throughout the appellants dealings with
    police. It was admittedly false. The appellant did not tell the arresting
    officer that he wanted to speak to a lawyer.

[138]

Arresting officers turned the appellant over to other officers three
    minutes later. These officers, also uninvolved in the investigation, were
    assigned to transport the appellant to 55 Division. When the appellant denied
    that he had been advised of his right to counsel, an officer repeated the
    section 10(b)
Charter
advice. A discussion followed about speaking to
    a lawyer. The appellant indicated that I might as well speak to a lawyer
    since the lawyer would have to deal with the matter anyway. But the appellant
    didnt know a lawyer. Advised of the availability of free legal advice from duty
    counsel, the appellant said that he was gonna have to speak to duty counsel.
    He would do so, he said, at the police station.

[139]

The appellant did not suggest at trial, as he does here, that he
    should have been given access to his own cellphone and left in the police car
    with the recording equipment turned off so he could speak to a lawyer. The
    appellants cellphone did not work because he had thrown away the SIM card
    before he was arrested. And there was no obligation on either transporting
    officer to offer use of their own cellphone so that the appellant could speak
    to a lawyer. Trial counsel conceded that the first reasonably available
    opportunity to speak to a lawyer was at the police station.

[140]

When the appellant arrived in the booking room at 55 Division, the
    acting sergeant repeated the appellants right to retain and instruct counsel
    without delay. The officer told the appellant that he was entitled to make
    reasonable use of the telephone at the station. To do so, the appellant could
    ask either the officers who brought him to the station or the investigating
    officer. The appellant did ask to speak to his mother. An officer facilitated
    that call.

[141]

The appellant did not ask any of the booking officers or either
    transporting officer to use the phone to call for legal advice. The appellants
    approach to speaking to a lawyer was at best ambivalent, barren of any
    reasonable diligence. From the outset, he was more interested in knowing the
    case against him than in obtaining legal advice.

[142]

Prior to entering the interview room, D/Sgt. Idsinga had been
    advised by transporting officers that the appellant had received his section
    10(b)
Charter
advice and had indicated that he wished to speak to duty
    counsel.

[143]

In the interview room, shortly after they began to speak, D/Sgt. Idsinga
    asked the appellant whether he wished to call a lawyer right now. The
    appellant responded, as he had previously, I guess so. Like I dont know whats
    going on. The officer offered to explain to the appellant what was going on
    but told him that he (the appellant) could talk to a lawyer first. D/Sgt.
    Idsinga repeated the appellants right to call a lawyer on several more
    occasions, but the appellant declined the offer: no, not as right now sir.

[144]

In these circumstances, the trial judge was correct to find that the
    appellant had failed to establish a breach of the implementational component of
    section 10(b) of the
Charter
.

Disposition

[145]

For these reasons, I would dismiss the appeal.

Released: December 2, 2021 D.W.

David
    Watt J.A.

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

I
    agree. Gary Trotter J.A.





[1]
J.B. absconded before trial and was not called as a witness.


