



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Duerksen,









2018 BCCA 46




Date: 20180206

Docket:
CA43816

Between:

Regina

Respondent

And

Christopher John
Duerksen

Appellant




Before:



The Honourable Chief Justice Bauman

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Hunter




On appeal from:  An
order of the Supreme Court of British Columbia, dated
June 16, 2016 (
R. v. Duerksen
, 2016 BCSC 1771, Chilliwack Docket 63977).




Counsel for the Appellant:



C.L. Bauman





Counsel for the Respondent:



M.A. Street





Place and Date of Hearing:



Vancouver, British
  Columbia

September 7, 2017





Place and Date of Judgment:



Vancouver, British
  Columbia

February 6, 2018









Written Reasons by:





The Honourable Chief Justice Bauman





Concurred in by:





The Honourable Madam Justice Newbury

The Honourable Mr. Justice Hunter




















Summary:

The police arrested the
accused on charges of kidnapping and robbery. The police also informed the
accused of the right to counsel, but he did not identify a specific lawyer to
contact because he was unsure of who to call. The accused had previously
indicated he did not want to rely on Legal Aid counsel. The accused later spoke
with Legal Aid counsel prior to giving statements to police. The accused argued
that the statements should be inadmissible because he was not provided with a
reasonable opportunity to access counsel of choice as required by s. 10(b)
of the Charter. The trial judge held that the evidence was insufficient to
determine how the police came to contact Legal Aid counsel, and therefore the
accused had not met his burden to show that he was not afforded a reasonable
opportunity to contact counsel of choice. Held: Appeal dismissed. The burden to
prove that the police failed to provide an accused with a reasonable
opportunity to contact counsel lay with the accused. The trial judge did not
err in finding that the evidence was insufficient to show that the police
pre-empted the accuseds choice of counsel or that they otherwise did not
provide the accused with a reasonable opportunity to access counsel of choice.
The accused also clearly waived his right to contact counsel again after being
charged with robbery since he requested to speak to police.

Reasons
for Judgment of the Honourable Chief Justice Bauman:

Introduction

[1]

This appeal arises out of a
voir dire
ruling consequent upon an
accused persons allegation that on his arrest, the police breached his rights
under s. 10(b) of the
Charter
, to retain and instruct counsel
without delay and to be informed of that right. For reasons that follow, I
would dismiss the appeal from the trial judges decision dismissing the
application.

Facts

[2]

On 20 June 2014, Christopher John Duerksen and his co‑accused,
Stuart Forrest, cornered the complainant, Kevin Regehr, in a shed on Mr. Regehrs
family property. Mr. Duerksen planned to tie Mr. Regehr up, take him
for a drive in his truck and scare him into having his family pay a
multi-million dollar ransom. However, after Mr. Duerksen took Mr. Regehrs
wallet and keys and had him write a ransom note, Mr. Regehr attempted to
escape. Mr. Forrest reacted by striking Mr. Regehr in the head
several times, causing his head to hit the cement. Mr. Forrest also kicked
him in the groin. The men then placed Mr. Regehr in Mr. Duerksens
truck, brought him into a nearby park, tied him up against a tree and left.

[3]

With the help of a police dog, the police located Mr. Regehr several
hours later. Mr. Regehr had suffered a severe head injury, multiple facial
fractures, blurred vision, severe scalp lacerations, soft tissue injuries, a
groin injury and psychological trauma.

[4]

In the early morning hours of 21 June 2014, Mr. Duerksen called the
Abbotsford Police Department and told Detective Demers he would turn himself
into the detachment in the morning in connection with the Regehr matter after
he consulted with a lawyer. Det. Demers sought to dispel Mr. Duerksens
concerns that the police would arrest him before Mr. Duerksen came in
voluntarily and suggested that Mr. Duerksen come down to the police
station where counsel might then be provided. Mr. Duerksen emphasized his
desire to contact a lawyer before turning himself in and that he did not want
to come in and then have to be given [counsel].

[5]

Coincidentally, Mr. Duerksen was arrested a short time later by
another officer, Sergeant Sansalone, when Mr. Duerksen was found near the
truck that had been used to commit the kidnapping. He was arrested and charged
with kidnapping and aggravated assault. In response to being read his s. 10(b)
Charter
rights, Mr. Duerksen said he wished to call a lawyer.
Another officer, Constable Walker, then transported Mr. Duerksen to
Abbotsford police cells. He knew Mr. Duerksen had asked to speak to
counsel and he left a message for Legal Aid. When Legal Aid returned the call, Mr. Duerksen
spoke to a lawyer in his cell from 2:46 to 2:48 a.m.

[6]

Detective Murray then became involved when he re-read Mr. Duerksen
his
Charter
rights after he was also charged with robbery. When Det.
Murray asked if he wished to speak to a lawyer, Mr. Duerksen replied No,
the first time was pointless. He then asked Det. Murray when someone would
speak to him. Det. Murray expressed surprise that Mr. Duerksen wanted to
speak at that late hour. Nevertheless, he took Mr. Duerksen into an
interview room and conducted an interview.

[7]

The interview began at 3:40 a.m. and lasted for just over 3 hours
and 40 minutes. Throughout, Mr. Duerksen was hesitant to discuss the
offence, but eventually relented and gave further details when prompted by Det. Murray.
Det. Murray used a number of ways to prompt Mr. Duerksen to give him
information:  he expressed sympathy for Mr. Regehrs family, concern for Mr. Regehrs
safety (at that time police did not know the identity of Mr. Duerksens co‑perpetrator),
and urged Mr. Duerksen to be a good person and have a conscience. Mr. Duerksen
expressed his wish to consult a lawyer a number of times during the interview.
It is apparent from the transcript that Mr. Duerksen believed he could
have a lawyer in the interview room with him. At one point, Mr. Duerksen
asked if the police had somethingbetter than the Legal Aid. In response,
Det. Murray referred to a list of counsel kept in a book in the detachment, but
said private lawyers would not answer at that early hour. He then said that did
not mean there would not be someone available later in the morning. The
interview continued and Mr. Duerksen provided evidence incriminating
himself.

[8]

Later that day, just after 5:00 p.m., Detective Wheatley and
another officer spoke to Mr. Duerksen and informed him they would be
speaking with his father to see if his father wished to arrange a lawyer for Mr. Duerksen.
Det. Wheatley told the father that the fathers lawyer could communicate
with Mr. Duerksen to provide advice.

[9]

Mr. Duerksen had another call with counsel at 9:28 a.m. on 22 June
2014. Detective Brown-John then conducted a follow-up interview at 11:36 a.m.
When the detective asked him for further details, Mr. Duerksen again said
he wished to speak to a lawyer. When Det. Brown-John responded that Mr. Duerksen
had already had the opportunity to speak to his lawyer, the interview continued
and Mr. Duerksen provided a number of additional details. He admitted to having
planned the kidnapping and to his involvement in the offence.

[10]

At trial, the key issue was the admissibility of Mr. Duerksens various
statements to police. Mr. Duerksen did not testify at the
voir dire
on
that issue. Following the trial judges ruling admitting Mr. Duerksens
statements, the accused through his counsel invited the trial judge to impose
convictions on counts 1, 3 and 5 of the indictment, without prejudice to his
right to appeal the
voir dire
ruling.

Decision Under Appeal:
voir
dire
ruling

[11]

The trial judge found that Mr. Duerksen had failed to establish a
breach of his rights under s. 10(b) of the
Charter
. In his ruling,
the trial judge set out all portions of the police interview transcripts of the
telephone conversations between Mr. Duerksen and Det. Demers, as well
as the formal interviews at the Abbotsford police detachment in which Mr. Duerksen
expressed his wish to consult a lawyer, and his frustration as a result of having
admitted certain facts. The trial judge also set out the positions of the
defence and Crown, and highlighted the Crowns emphasis on the insufficiency of
evidence in support of an actual breach of s. 10(b) in the absence of
testimony from Mr. Duerksen as to how he wished to exercise his right to
counsel. The trial judge also found that Mr. Duerksens statements to Det.
Demers could support an inference as to Mr. Duerksens intentions to
contact counsel if he had been asked (para. 41).

[12]

The judge then turned to an analysis of the chain of events leading to Mr. Duerksens
inculpatory statements. The judge accepted that the law requires police to
offer the means to a detainee to choose their own counsel, and that the police cannot
pre-empt that choice by calling Legal Aid on a detainees behalf without
direction from the detainee. However, the trial judge found that the defence
had failed to establish that Cst. Walker pre‑empted the choice of
counsel by calling Legal Aid on his own initiative (para. 43). The
evidence did not demonstrate to any reliable degree what Mr. Duerksen said
in response to being informed of his rights or how Cst. Walker came to
dial Legal Aid.

[13]

The trial judge also addressed the interview conducted by Det. Murray.
He found that Mr. Duerksen had rejected Det. Murrays offer of
alternative contact with counsel and highlighted that Mr. Duerksen had in
fact asked to speak with police (at para. 45). The trial judge found that
the police had no duty at that point to persuade him to speak to a second
lawyer and that their duty to hold off on interviewing Mr. Duerksen was at
an end. The judge acknowledged that Det. Murray may have been incorrect in
advising Mr. Duerksen that contact with lawyers other than Legal Aid
likely could not be made at that time of night, but found that Det. Murray
conveyed this misinformation in the context of a gratuitous offer, thus it was
not found to constitute a breach of s. 10(b). The judge noted that many of
Mr. Duerksens comments about having a lawyer appeared to be rooted in his
mistaken belief that he could have a lawyer present for the interview 
something Det. Murray correctly advised was not a component of the
Charter
right.
In the end, the judge concluded there was no breach of Mr. Duerksens
s. 10(b) right.

Submissions


[14]

The sole issue on appeal is whether the trial judge erred in holding
that the Abbotsford Police satisfied their implementational duty to provide Mr. Duerksen
with a reasonable opportunity to exercise his right to counsel.

[15]

Mr. Duerksen submits that the trial judge erred in placing the
persuasive burden on him, not just with respect to proving a breach, but with
respect to every factual finding made in analysing whether a
Charter
breach had been established. Mr. Duerksen cites a decision of the Alberta
Court of Appeal,
R. v. Luong
, 2000 ABCA 301, for the proposition that a
s. 10(b)
Charter
breach is subject to a shifting persuasive burden
since police must preserve evidence of their interactions with an accused
person. According to Mr. Duerksen, the question was not whether Cst. Walker
pre‑empted Mr. Duerksen from exercising his right to counsel by
calling Legal Aid when he did, but rather whether the police, after having become
aware of Mr. Duerksens wish to contact counsel, discharged their duty to
facilitate reasonable access to counsel of choice.

[16]

Mr. Duerksen further submits that the judge failed to consider the
evidence of Cst. Walkers conduct in facilitating access to counsel and Det.
Murrays subsequent advice that it was doubtful a lawyer could be reached at
that time. In particular, Mr. Duerksen points to the failure to take into
account the context of him clearly advising Cst. Walker that he wished to speak
with counsel of choice and later expressing dissatisfaction with the Legal Aid
Brydges line. Had the judge done so, then he would have concluded that Mr. Duerksen
had met his onus of proof.

[17]

If this Court determines that the police, through Cst. Walker, did
not fulfill their implementational duty, Mr. Duerksen says the next
question is whether he subsequently waived his right to speak to counsel when
he was again advised of his s. 10(b)
Charter
rights by Det. Murray.
He says the trial judge erred in resolving this matter by finding implicitly a
waiver when he responded in the negative to Det. Murrays question as to whether
he would like to speak to a lawyer. In this regard he says the trial judge made
a factual error in finding that Mr. Duerksen said No, the first
one
was pointless when in fact, the record shows that he said No, the first
time
was pointless. He says, properly understood, this statement did not constitute
a waiver, but was an expression of his dissatisfaction with the advice he
received.

[18]

Mr. Duerksen also submits that Det. Murray actively misled him
and discouraged him from attempting to seek alternate counsel when the officer
told him it was possible to call counsel from a book of lawyers, but that none
of those lawyers could be reached at that time.

[19]

The Crown submits that the trial judge did not err in respect of the
persuasive burden. That burden only shifts to the Crown if there is a delay in providing
or facilitating the right to counsel, or if the Crown asserts waiver. Here, the
Crown asserted waiver only with respect to the right to counsel offered to Mr. Duerksen
following his arrest for robbery. Mr. Duerksen still bore the burden of
establishing that police had failed to provide him with a reasonable
opportunity to contact counsel after arresting him for aggravated assault and
kidnapping.

[20]

The Crown argues that Mr. Duerksen failed to meet this burden. He
was entitled to try to meet the burden of proof through cross-examination
rather than testifying himself, but he had to live with the consequences of
doing so. He adduced no evidence upon which the trial judge could have found a breach.
Mr. Duerksen did not ask Cst. Walker about his knowledge of the
different ways a detainee may wish to exercise his or her right to counsel, nor
his practice when a detainee wants counsel other than Legal Aid, but does not
know who to contact. There was no direct evidence as to how Mr. Duerksen intended
to exercise his right to counsel.

[21]

With respect to waiver, the Crown argues that while the trial judge did
not explicitly reference the legal test for waiver, the court is presumed to
know the law. The record makes it clear that the trial judge did not err in
finding Mr. Duerksen had waived his right to counsel. He had sufficient
information to have validly waived the right. Although the trial judge
misstated Mr. Duerksens response to Det. Murray, he was merely
paraphrasing a statement he had correctly reproduced earlier in his ruling, and
in any event, the misstatement had no effect on the judges reasoning. The
critical word in the sentence was pointless, which was ambiguous and did not
indicate that Mr. Duerksen had not been given advice, or that he somehow
did not understand the advice he had received.

[22]

The Crown submits that Mr. Duerksens ambiguous comments did not
give Det. Murray reason to believe the advice Mr. Duerksen had received
was deficient. At best, his remarks suggested that he disliked the lawyer with
whom he spoke. Police are not required to monitor the quality of legal advice
provided once a detainee has contacted counsel. Had Mr. Duerksen not
understood the advice he had received or felt it was deficient, he ought to
have said so. He demonstrated an ability to voice his concerns or ask for
things on a number of occasions during the interview with Det. Murray. Although
Mr. Duerksen made comments indicating a wish to contact a lawyer during
the interrogation with Det. Murray, he made those comments as a result of the
mistaken assumption that he had the right to have a lawyer present during
questioning.

[23]

In response to the argument that Det. Murray allegedly actively
misled or discouraged Mr. Duerksen from using a lawyer, the Crown submits
that the defence has pointed to nothing in Det. Murrays conduct that
would support such an inference. Det. Murray was never challenged on the
sincerity of his belief that Mr. Duerksen would not have been able to
connect with a lawyer at the time of the interview. In any event, Det. Murrays
misunderstanding concerning the availability of a lawyer was inconsequential as
Mr. Duerksen had already exercised his right to counsel.

Analysis

[24]

The purpose of section 10(b) is to allow the detainee not only to
be informed of his rights and obligations under the law but, equally if not
more important, to obtain advice as to how to exercise those rights:
R. v.
Manninen
, [1987] 1 S.C.R. 1233 at 1242-1243. The police must provide a
detainee with a reasonable opportunity to exercise their right to counsel:
R.
v. Fan
, 2017 BCCA 99;
R. v. Taylor
, 2014 SCC 50 at para. 23.
For example, it is incumbent upon the police to offer a telephone to contact
counsel, regardless of whether a detainee requests one:
Manninen
at 1242.
Similarly, where it is reasonable to provide private phone access in a hospital
ward, it must be provided:
Taylor
at para. 34. However,
s. 10(b) does not create positive substantive obligations on the
government to provide duty counsel, nor does it require that counsel be present
during interrogation:
R. v. Prosper
, [1994] 3 S.C.R. 236 at 267-268;
R.
v. Sinclair
, 2010 SCC 35 at para. 2. A detainee must also be
reasonably diligent in the exercise of the right to counsel:
R. v.
Bartle
[1994] 3 S.C.R. 173 at 192.

[25]

The overall burden to prove a
Charter
infringement lies on the
claimant, including infringements of s. 10(b):
R. v. Collins
, [1987]
1 S.C.R. 265 at 277;
R. v. Rindero
, 2001 BCCA 336. However, the burden
lies on the Crown to show that any delay in affording a detainee an opportunity
to access counsel was reasonable in the circumstances:
Taylor
at para. 24.
The burden also lies on the Crown to prove that the detainee waived their right
to counsel:
Prosper
at 275.

[26]

The application before the trial judge turned on the sufficiency of the
evidence of a breach of Mr. Duerksens rights under s. 10(b). In
particular, it centered on whether he had shown on a balance of probabilities
that the police breached their implementational duty under s. 10(b) to
provide Mr. Duerksen with a reasonable opportunity to exercise his right
to counsel.

[27]

The crux of the trial judges reasoning in concluding that Mr. Duerksen
had not met his evidentiary burden is found in paras. 42 to 44 of his
reasons:

[42]      The first component of the alleged breach here is
that Cst. Walker simply facilitated contact with Legal Aid in the absence
of a request for a specific lawyer, ignoring the intermediate step, which I
accept is required by the authorities that have been cited, of also offering
the means to choose his own counsel. The critical evidence in support of this
are his earlier statements of intention to obtain a lawyer,
Sgt. Sansalone's agreement with the suggestion that he would have
considered a statement that Mr. Duerksen could not afford a lawyer or did
not have one to be important and would have noted it, and Cst. Walker's
apparent position that he would have noted and facilitated access to a specific
requested lawyer.

[43]      However, even taken at its highest I find the
current evidence insufficient to establish on a balance of probabilities that
Cst. Walker actually pre-empted the choice of counsel by calling Legal Aid
of his own initiative.

[44]      It is the accused's
burden in this
voir dire
and we simply do not know to any reliable
degree what he said in response to receiving his rights from
Sgt. Sansalone, beyond the mere affirmations that are noted, or how
Cst. Walker came to dial Legal Aid for him. As the cases emphasize, a
great deal of the implementational duties on the police are influenced by what
the detainee says and does in response to the required advice. This is not a
situation like
Kiloh
where there is clear evidence that the officer
regarded contact with a lawyer and with Legal Aid as the same thing and imposed
that misunderstanding on the detainee. Cst. Walker's reference in his
evidence to hunting down lawyers was in the context of a request for a specific
lawyer, but we do not know what his evidence would have been if he had been
asked what he does for detainees who want a lawyer other than Legal Aid, but do
not have a name.

[28]

Mr. Duerksen complains that the trial judge asked himself the wrong
question in para. 43 and focused too narrowly on whether Cst. Walker
pre-empted his choice of counsel; that the correct question, on the contrary,
was more generally whether the police, after having been made aware of Mr. Duerksens
wish to contact counsel, discharged their duty to facilitate reasonable access
to counsel of his choice. I disagree. The judge was clearly alive to the
generality of the issue before him. He was simply responding to the central
submission advanced by Mr. Duerksen in arguing that the implementational
duty had been breached when police choose counsel for a detainee based on the
reasoning in cases like
R. v. Kiloh
, 2003 BCSC 209.

[29]

This brings the discussion to the merits of Mr. Duerksens
submission: as between him and the police authorities, who does bear the burden
of establishing that the police discharged their duty to facilitate Mr. Duerksens
reasonable access to counsel? The facts include these:

(1) Based on his telephone
conversations with Det. Demers, Mr. Duerksen apparently wanted to be
advised (indeed accompanied) by counsel of his choice.

(2) Mr. Duerksen
reiterated his wish to call a lawyer upon being initially advised of his
s. 10(b) rights by Sgt. Sansalone. Being advised of the right to
retain and instruct counsel implicitly informs the detainee that they have the
right to hire a lawyer of their choice:
R. v. Grouse
, 2004 NSCA 108 per
Cromwell J.A., as he then was, at para. 24. So there is no doubt that
the informational duty was met in this regard.

(3) Mr. Duerksen
spoke to a Legal Aid lawyer from 2:46 to 2:48 a.m. when Cst. Walkers call
to Legal Aid was returned. No evidence was adduced on the
voir dire
to
the effect that Mr. Duerksen at that time objected to receiving advice
from a Legal Aid lawyer.

(4) After he was charged
with robbery, Det. Murray reread Mr. Duerksen his
Charter
rights. Mr. Duerksen
said, when asked, that he did not wish to speak to a lawyer, that  the first
time was pointless. Shortly thereafter, he said that he wanted to speak to the
police.

(5) At 3:40 a.m. Mr. Duerksen
was in the police interview room with Det. Murray and Cst. Baker. The
transcript discloses this exchange (CD is Mr. Duerksen and KM is Det.
Murray):

KM:      Okay; so Im gonna leave this audio recorder on
even though its gonna be audio and videoed okay? Just in case theres a screw
up with that machine; at least, at least I have this. Okay? So Im just gonna
make a note here that were in here at uh three-forty-four. Alright now, before
we begin, I know that you were already provided with your Charter Rights.

CD:      Are you gonna read that again?

KM:      I am not going to read it again.

CD:      Thank you.

KM:      I have to read a different part of it. Alright?

CD:      Okay.

KM:      So its called the Secondary Warning. Okay?



KM:      Alright. So I mean, my friend, I dont know
where you want to start. So, I, could I 

CD:      Well I was to 

KM:      -- could I 

((U/I) conversation)

KM:      -- ask.

CD:      I was told by um, Detective 

KM:      Tony?

CD:      Tony.

KM:      Yeah.

CD:      That he want to talk.

KM:      Uh 

CD:      So I wa 

KM:      -- we do.

CD:      So I assumed that you guys had a bunch of
questions.

KM:      I totally do. I just didnt know if you wanted
to st  initiate or start with an opening comment or something. Which you are
totally free to do.

CD:      St  start asking 

KM:      Start? Okay.

CD:      Start asking
questions.

[30]

The essential facts before the judge on the
voir dire
then
distill to this essential scenario: Mr. Duerksen initially appeared to
want counsel of his own choice and must be taken to have known this was his
right. The police contacted Legal Aid. There is no evidence as to why this
happened. The Legal Aid lawyer responded to the call and Mr. Duerksen took
advice from that lawyer. Mr. Duerksen declined the opportunity to contact
a lawyer a second time. He said the first time was pointless. He expressed a
willingness to talk with police. He said he was thankful that he was not
advised of his right to counsel a third time. He assumed the police had a
bunch of questions and he invited police to Start asking questions.

[31]

Mr. Duerksen relies on
Luong
to argue that the Crown has the
burden of establishing that a detainee who has invoked a right to counsel is provided
with a reasonable opportunity to exercise that right. In
Luong,
the
Alberta Court of Appeal summarized the various stages in the s. 10(b)
analysis and in particular commented on the Crowns burden as follows:

[12]      For the assistance of trial judges charged with the
onerous task of adjudicating such issues, we offer the following guidance:

...

7.         A trial judge must first determine whether
or not, in all of the circumstances, the police provided the detainee with a
reasonable opportunity to exercise the right to counsel; the Crown has the
burden of establishing that the detainee who invoked the right to counsel was
provided with a reasonable opportunity to exercise the right.

[32]

Before us, the Crown submits that this is a dubious conclusion; that
Luong
has not been substantially considered in this regard by courts that have cited
it. I agree that this statement in
Luong
has not been critically
examined or expressly adopted. I do not accept the soundness of the Courts
comments in light of what this Court has said is trite law: the onus is on the
accused to establish on a balance of probabilities that the police have failed
to provide him with his rights under the
Charter
and, in particular, his
rights under s. 10(b):
Rindero
;
Collins
at 277;
R. v.
Baig
, [1987] 2 S.C.R. 537 at 540.

[33]

As already noted, the Crown submits that the persuasive burden shifts to
the Crown only if there is a delay in providing or facilitating the exercise of
a detainees right to counsel, or if the Crown asserted waiver of that right.
As to the former the Supreme Court of Canada did cite
Luong
with
apparent approval in
Taylor
at para. 24:

The duty to inform a detained
person of his or her right to counsel arises immediately upon arrest or
detention (
Suberu
, at paras. 41-42), and the duty to facilitate
access to a lawyer, in turn, arises immediately upon the detainees request to
speak to counsel. The arresting officer is therefore under a constitutional
obligation to facilitate the requested access to a lawyer at the first
reasonably available opportunity. The burden is on the Crown to show that a
given delay was reasonable in the circumstances (
R. v. Luong
(2000), 271
A.R. 368, at para. 12 (C.A.)). Whether a delay in facilitating access to
counsel is reasonable is a factual inquiry.

[34]

I do not read this reference, however, as adopting
Luong
s more
general statement that the Crown has the burden of establishing that the
detainee who invoked the right to counsel was provided with a reasonable
opportunity to exercise the right.

[35]

In
R. v. A.R.M.
, 2011 ABCA 98, leave to appeal refd [2012]
S.C.C.A. No. 84, the Alberta Court of Appeal extensively discussed the
burden of proof with respect to the infringement of s. 10(b). The Court
wrote that the burden of proof is on the
Charter
claimant, absent a
prima facie set of facts that triggers a presumption, such as facial
unreasonable trial delay in cases under s. 11(b) of the
Charter
or
facial warrantless search and seizure in cases under s. 8 of the
Charter
:
at para. 47. Notably, the Court did not discuss the burden shifting to the
Crown with respect to proving reasonable opportunity to exercise right to
counsel, even though it cited
Luong
only a few paragraphs earlier: see para. 43.

[36]

In
A.R.M.
, the Court went on to discuss how presumptions which
shift the burden of proof are motivated by specific policy choices:

[50]      The established onus on
a
Charter
claimant to prove the
Charter
claim does not defeat
justice. There [
sic
] presumptions as to prima facie breaches of certain
Charter
rights are policy choices under law for specific situations. The respondents
position would either create a new presumption, or would establish a broader
and more general rule which would make the existing presumptions redundant. We
are not persuaded that a new presumption should apply to this case.

[37]

Although
Taylor
creates a new presumption that effectively shifts
the burden of proof on the issue of reasonable delay, in my view the policy
rationale for that shift is not applicable in this case. Where there is a delay
in accessing right to counsel, it is likely only the police who would be in a
position to explain why the detainee was not able to contact counsel and
whether the delay was reasonable in the circumstances. On the broader question
of whether the detainee was provided a reasonable opportunity to exercise the
right to counsel, both sides are likely able to provide some explanation. As
the case at bar demonstrates, a central issue might be who the detainee wanted
to call, or when, which may be something to which the detainee is best
positioned to testify  if not the only one who is capable of doing so.

[38]

The Court of Appeal for New Brunswick also considered these issues in
MacDonald
Brown v. R
., 2009 NBCA 27 at paras. 22-23. In that case, the Court was
urged to follow
Luong
, but resisted compartmentalizing the obligations
that arise out of the implementation component of the s. 10(b) right. In
the Courts view the main governing principle in determining questions of
reasonable opportunity and due diligence is the need to examine the
totality of the circumstances. The trier of fact must look at the facts
globally and determine whether in all of the circumstances it can be said that
the detainee was not provided with a reasonable opportunity to exercise the
right to counsel.

[39]

While the Supreme Court of Canada in
Taylor
may have been willing
to acknowledge some shifting burdens in the s. 10(b) analysis, I still pay
heed to the cautionary note sounded by the Court in
MacDonald Brown
, and
would not adopt the analysis from
Luong
concerning the shifting of the
burden.

[40]

Mr. Duerksen, in part, supports the assignment of the burden to the
Crown on the basis that the police must preserve evidence of their interactions
with an accused person. Without a shift in the burden, the police have less
incentive to record completely their dealings with a detainee. That observation
is not particularly apt here. Mr. Duerksen knows very well whether he was
frustrated in his effort to contact counsel of his choice. The very heart of
his complaint was within his knowledge and he did not lead evidence on the
voir
dire
. And the ultimate burden was on him to prove a breach of his s. 10(b)
rights on a balance of probabilities.

[41]

As noted earlier, I do not accept the validity of the statement from
Luong
cited by Mr. Duerksen. He had the burden to establish that the police
failed to provide him with a reasonable opportunity to consult counsel. The
trial judge concluded that Mr. Duerksen had not met this burden. The judge
found as fact that we simply do not know to any reliable degreehow Cst.
Walker came to dial Legal Aid for him. Mr. Duerksen failed to meet his
burden of proof on his application.

[42]

I turn then to the issue of whether Mr. Duerksen waived his right
to counsel after he was subsequently charged with the additional offence of
robbery. When Mr. Duerksen again was informed of his right to counsel by
Det. Murray, Mr. Duerksen declined with the statement No. The first
time was pointless. The trial judge reasoned:

[45]      Once he was in Det. Murray's company there is
no question that Mr. Duerksen made some disparaging comments about the
Legal Aid lawyer he had dealt with. But as the Crown notes, his response to the
inquiry about whether he would like to speak to a lawyer put to him by
Det. Murray was negative, followed by the comment that the first one was
pointless. In other words, the context was the rejection of the offer of
alternative contact with counsel at that point prior to the first statement.
This is consistent with his request to speak to the police at that point, which
was certainly not being deterred by concerns about further lawyer contact.

[46]      I am unable to find that the police were required
to be such proactive guardians of his right at that point as to attempt to
persuade him, contrary to his rejection of the offer, that a second counsel
might be more fruitful. I also think that in light of what was, at the end of
the day a refusal to pursue other choices of counsel, their duty to hold off on
interviewing, if indeed it arose at all based on the second
Charter
warning for an additional offence, was at an end.

[47]      I appreciate that when
the subject of alternative choices of counsel came up later in the interview,
Det. Murray, perhaps inaccurately in light of counsel's own experience,
indicated that contact with lawyers other than Legal Aid likely could not be
made at that time of night, but this was at a stage after which alternate
counsel had been declined and I am not convinced that misinformation in the
context of a gratuitous offer, one unrelated to any change in the circumstances
giving rise to the need for the right guaranteed by s. 10(b), constituted
a breach at that point.

[43]

I conclude that nothing flows from the slight inaccuracy in the judges
recital of the evidence here, the first one rather than the first time. Further,
I agree with his conclusion that Mr. Duerksen declined to exercise his
right to counsel. Mr. Duerksen understood the extent of his jeopardy and
the consequences of waiving his right:
R. v. Mehan
, 2017 BCCA 21 at
paras. 65-69;
R. v. Smith
, [1991] 1 S.C.R. 714.

[44]

For these reasons I would dismiss the appeal.

The Honourable Chief Justice Bauman

I agree:

The Honourable Madam Justice
Newbury

I agree:

The Honourable Mr. Justice
Hunter


