



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Abdullah, 2013 ONCA 372

DATE: 20130605

DOCKET: C55511

Doherty, Simmons and Rouleau JJ.A.

Her Majesty the Queen

Appellant

and

Sayeed Abdullah

Respondent

J. Sandy Tse, for the appellant

R. Sheppard, for the respondent

Heard and released orally:  May 22, 2013

On appeal from the acquittals entered by Justice J. Morissette
    of the Superior Court of Justice, dated April 26, 2012.

ENDORSEMENT

[1]

The respondent was charged with several offences arising out of the
    search of his home by the police.  The charges included a charge of possession
    of a handgun.  At trial, the admissibility of a statement made by the
    respondent to another prisoner while both were in the cells was at issue.  The
    trial judge ruled that the statement was taken in contravention of the
    respondents rights under s. 10(b) of the
Charter
.  She ruled that the
    statement should be excluded under s. 24(2).  The trial judge acquitted the
    respondent and the Crown appeals challenging the
Charter
ruling made
    at trial.

[2]

The part of the narrative relevant to the appeal begins after the
    respondents arrest.  He was in the cells and was advised of his right to
    counsel by the investigating detective.  The respondent indicated that he
    wished to speak to his lawyer and identified his lawyer by name.

[3]

Within seconds of the respondent asserting his right to counsel and as
    the detective was leaving the cellblock to make the necessary arrangements for
    the respondent to speak to his lawyer, the respondent began a conversation with
    the person in the next cell.  The detective stopped, listened and made notes of
    the very brief conversation.  In the context of the evidence ultimately adduced
    at trial, and particularly the defence advanced at trial, the statement was
    potentially inculpatory.

[4]

After listening to and recording the statement, the detective
    interviewed another person involved in the same investigation.  He began his
    efforts to locate the respondents lawyer about 20 to 25 minutes after the
    respondent asserted his s. 10(b) right.  Those efforts failed.  The detective
    then spoke to the respondent again and offered to try to arrange for the
    respondent to speak to another lawyer.  Eventually, the respondent waived his
    right to counsel and provided a videotaped statement to the police.  The trial
    judge ultimately ruled that statement admissible.

[5]

In excluding the evidence of the statement made to the other prisoner,
    the trial judge said:

My opinion, the delay by Officer Pavoni to afford that
    opportunity to exercise his right to counsel cannot be viewed as reasonable. 
    The opportunity to allow him to exercise his right to counsel was delayed for
    no valid reason.

Accordingly, Mr. Abdullahs right under section 10(b) was
    breached.

Under section 24(2) we know Grant rules.  Officer Pavoni when,
    instead of doing what he should have done, and do what is necessary to find
    counsel for the accused, he made a conscious decision to delay the
    implementation of the right to counsel for the purposes of doing other things,
    interviewing a third party and, of course, also eavesdropping to obtain
    incriminating evidence.

[6]

With respect, we cannot agree with the trial judges s. 10(b) analysis. 
    The police have three obligations under s. 10(b).  The relevant obligation in
    this case is described in
R. v. Smith
,
2008 ONCA 127 at para. 26:

The police must provide the detainee with a reasonable
    opportunity to exercise the right to retain and instruct counsel without delay.

[7]

The question was whether the detective breached that obligation in
    listening to and recording notes of the brief conversation between the
    respondent and the other prisoner before he left the cell area.  The statement
    was made by the respondent to the other prisoner before the detective had any
    possible opportunity to comply with the request for counsel.  Even if the brief
    20-25 minute delay after the officer left the cell area could engage s. 10(b)
    concerns, that time period is irrelevant to whether there was a breach at the
    time the officer listened to and made notes of the statement.  There was no
    breach of s. 10(b) at that point in time.

[8]

We also accept the Crowns submission that there could be no suggestion
    that the statement was in any way elicited by the detective.  The statement
    came as a surprise to the detective.

[9]

In summary, it could not be said that at the point in time when the
    statement was overheard by the police officer there had been any failure to
    provide a reasonable opportunity to consult with counsel.  The respondents
    belief that his statement to the other prisoner was not being overheard by the
    police had no relevance to whether the police had complied with their
    obligation under s. 10(b).  This case is controlled by the analysis in
R.
    v. Yaeck
(1991), 68 C.C.C. (3d) 545 (Ont. C.A.) leave to appeal refused
    [1992] S.C.C.A. No. 36.

[10]

We
    are satisfied that had the statement been admitted, the result may have been
    different.  The Crown is entitled to a new trial on the counts on which the
    respondent was acquitted, save the count with respect to which the Crown
    acknowledged at trial that it had no evidence (possession of a firearm obtained
    by the commission of an indictable offence).  The acquittals are quashed and
    new trials ordered on those counts.

Doherty
    J.A.

Janet
    Simmons J.A.

Paul
    Rouleau J.A.


