



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4     (1)
Subject to subsection (2), the presiding judge
    or justice may make an order directing that any information that could identify
    the complainant or a witness shall not be published in any document or
    broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)   an offence under section 151, 152,
    153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173,
    210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    346 or 347,

(ii) an offence under section 144
    (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156
    (indecent assault on male) or 245 (common assault) or subsection 246(1)
    (assault with intent) of the
Criminal Code
, chapter C-34 of the Revised
    Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in any of subparagraphs (a)(i) to (iii).

(2)
In proceedings in respect of the offences referred
    to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)  at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the
    complainant of the right to make an application for the order; and

(b)  on application made by the
    complainant, the prosecutor or any such witness, make the order.

(3)
In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)
An order made under this section does not apply in
    respect of the disclosure of information in the course of the administration of
    justice when it is not the purpose of the disclosure to make the information
    known in the community. 2005, c. 32, s. 15, c. 43, s. 8;2010, c. 3, s. 5;2012,
    c. 1, s. 29.

486.6     (1)
Every person who fails to comply with an order
    made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an
    offence punishable on summary conviction.

(2)
For greater certainty, an order referred to in subsection
    (1) applies to prohibit, in relation to proceedings taken against any person
    who fails to comply with the order, the publication in any document or the
    broadcasting or transmission in any way of information that could identify a
    victim, witness or justice system participant whose identity is protected by
    the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Blake, 2015 ONCA 684

DATE: 20151007

DOCKET: C58677

Feldman, MacPherson and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jomo Blake

Appellant

Amy Ohler and Lynda Morgan, for the appellant

Lorna Bolton, for the respondent

Heard: September 11, 2015

On appeal from the conviction entered on April 26, 2013
    by Justice Guy P. Di Tomaso of the Superior Court of Justice, sitting with a
    jury.

MacPherson J.A.:

A.

Introduction

[1]

The appellant, Jomo Blake, was convicted of one count of sexual
    interference relating to a 15-year old complainant following a jury trial
    presided over by Di Tomaso J. of the Superior Court of Justice. During the
    trial, the trial judge made a ruling relating to the voluntariness of the
    appellants statements to police and the sufficiency of police compliance with
    their obligation to inform the appellant of his right to counsel. The appellant
    appealed this ruling. At the conclusion of the hearing, the panel indicated
    that the appeal would be dismissed, with reasons to follow. These are the
    reasons.

B.

Facts

(1)

The parties and events

[2]

The complainant reported that she had been sexually assaulted by the
    appellant, a family friend. She said that the appellant began touching her
    sexually when she was 13 or 14 years old. Sometimes she would babysit at the
    appellants home; on a few occasions she slept over. The complainant told the
    police that she and the appellant had sexual intercourse during these overnight
    visits.

[3]

Shortly after the complainant made her statement to the police, the
    police arrested the appellant at his workplace. When he was arrested, the
    appellant said I know what this is about. He stated that he understood his
    right to counsel and said that he wanted to contact his wife so that she could
    call a lawyer.

[4]

During the car ride to the police station, the appellant asked again to
    speak to his wife to arrange for a lawyer. Detective Constable Jason Stamp
    testified that his partner Detective Kevin McLean asked if the appellant or his
    wife had a lawyer. When the appellant said No, Detective McLean told the
    appellant that he could contact duty counsel at the police station.

[5]

Detective McLean did not recall that conversation but said that the
    appellant made a spontaneous statement in which he said: I heard Im not the
    first one. I heard her father did it to her.

[6]

Detective McLean stated that, once they arrived at the station, the
    appellant wanted to consult with duty counsel. The booking officer noted that
    the appellant wished to speak to duty counsel. The appellant arrived at the
    station at 1:25 p.m. and was placed in a cell. At 2:35 p.m., he was taken to a
    private area to speak, by telephone, to duty counsel. The conversation lasted
    until 2:47 p.m.

[7]

Before the appellants police interview began, the appellants wife
    arrived at the police stations front desk. The appellant was told that she had
    arrived and he asked Detective McLean to ask his wife to contact a lawyer.
    Detective McLean testified that he relayed this request and, when the wife said
    that she didnt know any lawyers, he told her that duty counsel was available.

[8]

The appellant was interviewed by Detective McLean from 4:31 p.m. to 6:17
    p.m. The appellant agreed that he had been given an opportunity to speak to
    duty counsel. He said that he knew of the allegation against him and denied
    ever touching the complainant sexually.

[9]

At 5:06 p.m., the appellant again asked to call his wife to get a
    lawyer. Detective McLean said that the appellant could call a lawyer again if
    he wanted to, but also told the appellant that new information had come to
    light (from the complainants family) regarding assaults on the appellants children.
    This line of questioning lasted for about five minutes, at which point
    Detective McLean said that the Childrens Aid Society would be investigating
    the allegations the next day.

[10]

Detective
    McLean then suggested to the appellant that this sexual contact with the
    complainant had been consensual. He stated: if you had consent, then you had
    consent and Im going home. At the
voir dire
, Detective McLean
    acknowledged that this statement was not true. After this line of questioning,
    and as Detective McLean was ending the interview, the appellant said that he
    wanted to go home to his wife and children and confessed to having sexual
    intercourse with the complainant on one occasion:

DCM: Would that  did you have consensual sex?

JB:     Yes we have consensual sex.

DCM: On Saturday night.

JB:     Yes.

(2)

The trial judges ruling

[11]

At
    the trial, a blended
voir dire
was held to consider whether the
    appellants statements to the police were voluntary and whether his rights
    pursuant to ss. 7, 10(a) and 10(b) of the
Charter of Rights and Freedoms
were violated. The trial judge ruled that the appellants statement was
    voluntary and that he had not been deprived of his right to counsel.

[12]

The
    appellant appeals these rulings.

C.

Issues

[13]

The
    appellant raises three issues on the appeal:

(1)

Did the trial judge err by
    concluding that the appellant was not denied his right to counsel of choice
    under s. 10(b) of the
Charter
?

(2)

Did the trial judge err by
    concluding that the appellants s. 10(b) right to counsel was not violated when
    Detective McLean introduced allegations of potential child abuse into the
    interview with the appellant?

(3)

Did the trial judge err by finding
    that the confession was voluntary?

D.

Analysis

(1)

Right to counsel

[14]

The
    purpose of the right to counsel is to provide the accused with legal advice and
    to ensure that the accused understands his or her right to silence: see
R.
    v. Sinclair
, 2010 SCC 35, [2010] 2 S.C.R. 310, at paras. 24-26;
R. v.
    Willier
, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 38. Police have a duty
    to facilitate access to a lawyer immediately and that includes the right to
    contact counsel of choice as well as the right to contact a third party to
    facilitate access to counsel: see
R. v. Taylor
, 2014 SCC 50, [2014] 2
    S.C.R. 495, at para. 24;
R. v. K.W.J.
, 2012 NWTCA 3, at paras. 32-33.

[15]

The
    appellant contends that the police officers did not facilitate his wish to
    contact his wife so that she could obtain a lawyer for him.

[16]

I
    do not accept this submission. This issue was not raised at trial. The trial
    judge found as fact that the appellant wished to speak to duty counsel and did
    so before his interview with the police. The appellant made no complaint about
    the advice he received and he clearly understood his right to silence.

[17]

In
    any event, it was appropriate for Detective McLean to ask the appellant if he
    or his wife had a lawyer; this would be required information if the officer was
    going to assist the appellant in contacting a specific lawyer.

[18]

Finally,
    I do not think that Detective McLean attempted to deflect the appellants
    attention away from the retention of a private lawyer and towards consultation
    with duty counsel. He was simply trying to obtain sufficient information to be
    able to comply with his constitutional obligation to assist the appellant in
    his desire to obtain legal advice. The detectives references to the duty
    counsel option were consistent with this goal: see
R. v. McCrimmon
,
    2010 SCC 36, [2010] 2 S.C.R. 402, at para. 19.

(2)

New jeopardy

[19]

The
    appellant contends that a second s. 10 (b)
Charter
breach occurred when
    the appellant was not afforded an opportunity to re-consult with counsel after
    Detective McLean informed him that there might be an allegation that he had
    abused his own children.

[20]

Section
    10(b) of the
Charter
affords an accused a single consultation with
    counsel. However, in some instances, a further opportunity to consult with
    counsel may be required where a change in circumstances necessitates a second
    consultation to fulfil the purposes of s. 10(b). One of the main instances in
    which an opportunity of a second consultation is required is where the accused
    faces a change in jeopardy. As explained by McLachlin C.J. and Charron J. in
Sinclair
,
    at para. 51:

The detainee is advised upon detention of the reasons for the
    detention: s. 10(a). The s. 10(b) advice and opportunity to consult counsel
    follows this. The advice given will be tailored to the situation as the
    detainee and his lawyer then understand it.  If the investigation takes a new
    and more serious turn as events unfold, that advice may no longer be adequate
    to the actual situation, or jeopardy, the detainee faces. In order to fulfill
    the purpose of s. 10(b), the detainee must be given a further opportunity to
    consult with counsel and obtain advice on the new situation.

[21]

In
    my view, the conversation between the appellant and Detective McLean during the
    interview did not rise to a level that required a second s. 10(b) offer to the
    appellant.

[22]

A
    leading case on the duty of police to re-advise detainees of their rights
    during an interview/statement scenario is this courts decision in
R. v.
    Sawatsky
(1997), 35 O.R. (3d) 767. In that case, this court held that the
    police must reiterate the right to counsel if they ask questions that go beyond
    an exploratory stage in connection with a related but significantly more
    serious offence or a different or unrelated offence. See also
R. v. D.T.
,
    2013 ONCA 166, 305 O.A.C. 58, at para. 28.

[23]

Detective
    McLeans conduct in his interview with the appellant does not come close to
    crossing the line drawn in
Sawatsky
and
D.T.
On this point, I
    explicitly endorse the trial judges reasoning in his
voir dire
ruling:

During Mr. Blakes interview, Detective McLean raised the issue
    of a separate investigation that police and the Childrens Aid Society were
    going to be jointly looking into regarding Mr. Blakes children. On behalf of
    Mr. Blake it is submitted that he was effectively threatened with other
    charges in relation to the abuse of his child or children for which he faced
    new jeopardy and regarding which he should have been advised of his rights once
    more to speak to counsel. I do not agree.

I do not accept that there is an evidentiary foundation upon
    which to find that this reference to a separate investigation involving the
    Childrens Aid Society and Mr. Blakes children was in any way a threat in
    relation to the allegations currently before the court. Detective McLean did
    not in any way threaten Mr. Blake with separate charges if he did not confess
    to the allegations before the court. Mr. Blake was never told that he would be
    facing any further charges. Quite to the contrary, at that point in time, the
    investigation had not even commenced.

I do not accept that Mr. Blake faced an inquiry or elevated
    jeopardy in respect of the Childrens Aid Society investigation which could
    cause him to feel threatened in respect of very different charges before this
    court. There was no 
quid pro quo
 on the evidentiary record before
    this court that would in any way suggest that if Mr. Blake did not confess to
    the offences for which he had been charged involving [the complainant], then,
    he would face an entirely new and separate set of charges involving the abuse
    of his children.

(3)

Voluntariness

[24]

The
    appellant submits that by raising child abuse allegations, Detective McLean created an atmosphere of oppression.  The appellant also submits that the trial judge erred by failing to conclude that the appellant's confession was unreliable because it flowed from Detective McLean's disingenuous description of the legal consequences of consensual sex with a minor.

[25]

I
    do not accept that raising a child abuse allegation created an atmosphere of
    oppression. That line of questioning lasted for less than five minutes. It did
    not create oppressive conditions or cause him to confess. His will was not
    overborne.

[26]

There
    is no doubt that Detective McLean introduced, and even pressed, the issue of
    consensual sex during his interview with the appellant:

DCM: So thats what Im talking about, consent, you understand
    all that. And  that explains a lot to me if that is the case.



DCM: Im saying if you  had consent then you had consent and
    Im going home.



DCM: But my whole thing is if this is consent

JB:     Yeah.

DCM:  its consent and that would explain everything, then I
    can go back and talk to them.

JB:     You know what?

DCM: And Ill be back and let them know my update.

[27]

In
    my view, this line of questioning did not cross the line into improper police
    inducement. Detective McLean testified, and the trial judge accepted in his
    ruling, that his intention in adopting this approach was to reduce the moral
    blameworthiness of the appellants acts, making it easier for him to tell the
    truth about what had happened.

[28]

Importantly,
    Detective McLean did not tell the appellant that the charges would be dropped
    if the sex with the complainant was consensual. Indeed, when the appellant
    asked him a question about consensual sex, Detective McLean replied: When two
    people, two adults have consensual sex theres no charge.

[29]

Finally,
    I note that the appellant testified at his trial. During cross-examination,
    this exchange occurred:

Q.      Im going to suggest to you that you admitted that you
    did it when you thought it wasnt a crime.

A.      No.

Q.      Thats the only reason you broke down

A.      No.

Q.      because you believed that it wasnt illegal to have
    sex with a 15 year old so you thought you were off the hook.

A.
I know its illegal to have sex with a 15 year old
and I never had sex with a 15 year old.                                                                               [Emphasis
    added.]

[30]

In
    summary, I do not think that Detective McLeans language during the consent
    component of the interview amounted to an improper inducement.

E.

Disposition

[31]

I
    would dismiss the appeal.

Released: October 7, 2015 (K.F.)

J.C. MacPherson J.A.

I agree. K. Feldman J.A.

I agree. B.W. Miller J.A.


