Prosper Warning: Part 2. R. v. Weeseekase(2007) 1. By Gino Arcaro B.Sc., M.Ed. I. Executive Summary

Transcription

1 Prosper Warning: Part 2 R. v. Weeseekase(2007) 1 By Gino Arcaro B.Sc., M.Ed. I. Executive Summary This is the second of a two-part series on the application of the Prosper Warning in cases where an arrested person invokes the right to counsel and then changes his mind. In other words, it applies when the arrested person makes two decisions: invokes and then waives the right to counsel. Part 1 explained R. v. Basko (2007), a significant decision that made the Prosper Warning contextual, i.e., it applies only within the context of certain, but not all, circumstances. 2 Part 2 deals with how the Basko decision was applied in R. v. Weeseekase (2007). In the Weeseekase case, the accused initially invoked her right to counsel. She then changed her mind and waived it prior to interrogation during which she made inculpatory statements. The trial judge excluded the statements because the investigating officer failed to follow the Prosper rules, specifically the failure to delay or hold off the interrogation. By the time of the interrogation (conducted nine days after the accused s arrest) the accused had already appeared twice in court, had been represented both times by Legal Aid counsel, and had been remanded in custody both times, by consent. On the day before the interrogation, while she was in custody waiting for a bail hearing, the officer asked the accused about making a statement. She wanted to speak to her lawyer first. The officer asked the staff at the remand facility to arrange it. Within a half hour, the staff phoned the officer informing him that the accused wanted to give a statement. The officer postponed the interrogation until the next day. When he started the questioning, he asked the accused if she had contacted her counsel. She said she left a message, her lawyer had not called her back, but she still wanted to give a statement. After her rights to counsel were communicated once again. The accused declined the opportunity to call a lawyer, saying she would speak to her lawyer in court later that morning. The trial judge applied the Prosper rules: (i) a questioning delay, and (ii) an instruction and concluded that the accused had not waived her right [to counsel] but was merely holding them in abeyance temporarily. 1 R. v. Weeseekase (2007), SKCA 115 (CanLII). 2 R. v. Basko (2007), SKCA 111 (CanLII).

2 The following are the Prosper rules verbatim: If a detained person initially asserts his or her right to counsel and is duly diligent in exercising it, (having been afforded a reasonable opportunity to exercise it), then has a change of mind and no longer wants to consult counsel, s. 10(b) imposes on the police an obligation to hold off attempts to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach a lawyer. From that flows an additional informational obligation (the Prosper warning ) to tell the detainee of (a) his or her right to a reasonable opportunity to contact a lawyer, and (b) the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. 3 II. Offence: Circumstances Robbery sec. 344(b) C.C. Evidence: The accused person was arrested and charged for robbing an acquaintance of alcohol, cigarettes, a watch, some drugs, and about $210 in cash. The victim and offender were familiar with each other. Their relationship included visits and the offender borrowing money from the victim. On the day of the offence, the accused went to the complainant s apartment. The accused was accompanied by two men, including her common-law partner who was armed with a gun. The victim allowed the accused to enter, believing the accused was alone. The accused left the door open so that her two companions could enter the apartment. The accused searched the victim s bedroom for drugs. As a result of encouragement from the accused, the victim was punched twice in the ribs. The accused s common-law partner held a gun to the victim s head, demanding to know where the victim stored his valuables. The victim gave them money from his wallet. They stole other items. They placed duct tape on the victim s mouth and ran out of the door. Eighteen days later, the accused surrendered. She turned herself in on other matters. On the following day, she was charged with the robbery in Provincial Court. The court record disclosed that she was represented by a Legal Aid lawyer. Her lawyer waived reading of the charge, and the Crown elected to proceed by indictment. The accused was remanded in custody by consent for 3 days for the purpose of a bail hearing. The accused then appeared in Provincial Court, again represented by the same Legal Aid counsel, and was remanded in custody, by consent, for another week, again for the purpose of a bail hearing. The investigating officer knew the date of the bail hearing and tried to obtain a statement from the accused somewhere between 4:00 and 4:30 p.m. on day before. Before the 3 R. v. Prosper (1994) CanLII 65 (S.C.C.), 3 S.C.R. 236.

3 interrogation, the officer informed the accused of her right to counsel. The accused invoked the right, asking to speak to her lawyer first. The officer informed the staff at the remand facility of the accused s request to speak to her lawyer and asked them to arrange it. The officer then left because as it was approaching the end of his scheduled shift. About half an hour later he received a call from staff at the remand facility, stating that the accused now wished to speak with him and give him a statement. The officer informed the staff he would attend the next day and they suggested a time of 8:00 a.m. The next day, the officer arrived at the remand facility. He started the interrogation at 8:24 a.m. The interview was videotaped. The following are relevant verbatim excerpts: Okay. Yesterday I came to see you. Yes. And I talked to you about, I told you what I was interested in was getting a statement from you if you were willing to provide one but at that time told you. Yeah I know. And you said you wanted to speak to a lawyer which is absolutely the right decision and, and I assume by now that you ve, you ve spoken with your lawyer, is that correct? (inaudible) You haven t? No. I thought you were calling your lawyer yesterday when I left here at four thirty. They said they couldn t get a hold of him and I waited for his call and he didn t call back. Oh. And since I m getting already, since I m already charged I might as well give a statement. Okay, are you sure about that? Yes I m sure. Okay, and I m gonna read you something important and this is what I gave you in lay terms basically um this is not a new charge this is an offence you ve already been charged with but you do have the right to retain and instruct counsel without dele, delay, you may call any lawyer you wish and Legal Aid duty counsel is available to provide you with immediate legal advice free of charge, and can explain the Legal Aid plan to you. I can provide you with a number and you can call free of charge. Do you understand your, your option or your right to call? Yes.

4 Okay. Do you wanna call a lawyer now? No, I ll talk to my lawyer this morning at court. Okay. Secondly, I m gonna warn you about what I told you yesterday again, you don t have to speak to me right? Yes. You need not say anything, you have nothing to hope from any promise of favour and nothing to fear from any threat whether or not you do say anything, anything you do say may be used as evidence, do you understand that? Yes. So you re not compelled to speak to me. Yes and I understand. Okay. What you re saying. The accused then gave her account of the events of the robbery, including admissions that: she and her common-law partner wanted drugs the common-law partner suggested they should rob the complainant she was the one who gained entrance to the apartment, and left the door open for the two males to enter she went to the victim s bedroom looking for drugs she heard some punching, and later a gun shot she ran out in fear when she heard the shot, and finally her male companions came out later and split a small amount of cash and a few morphine pills amongst the three of them. She kept a mickey for herself she was aware that her boyfriend had a gun in his possession when they went to the victim s apartment III. Trial & VOIR DIRE The trial judge excluded the accused s statements. The accused was acquitted. The reasons were as follows: The only evidence introduced at the voir dire was the officer s testimony. The accused s lawyer argued that a sec. 10(b) Charter violation occurred because the officer failed to follow the Prosper Rules, by failing to give a Prosper Warning and failing to hold off attempts to elicit incriminatory evidence until the accused had a reasonable opportunity to reach a lawyer. The Crown argued that the Prosper rules did not apply. The trial judge ruled that the officer did not do enough to foster her consultation with counsel before engaging in a quest for incriminating information. From the transcript, he stated at paragraph. 21:

5 The following morning, however, when he spoke with the accused in preparation for taking the warned statement, he was surprised to hear that his efforts to connect her with legal aid duty counsel had not been successful, so obviously she had not had the benefit of legal advice as to whether or not it would be appropriate to participate in the statement process. It was not apparent that she was abandoning the notion of speaking to a lawyer, but merely delaying it until her appearance in court that morning. She had not waived her rights, but was merely holding them in abeyance temporarily. In those circumstances, Sergeant Officer had the obligation of delaying the questioning process until she had that opportunity, in order to give greater assurance that her rights to counsel were properly executed. If she chose thereafter to provide a warned statement the court would have greater confidence that she did so being fully apprised of her legal rights. IV. Saskatchewan Court of Appeal The Crown successfully appealed the acquittal. The Sask. C.A. set aside the acquittal and ordered a new trial. The reasons are explained in case law below. In R.v. Hebert (1990) 4, the SCC explained the interaction between sec. 7 (the right to remain silent) and sec. 10(b) (the right to counsel) after an accused has consulted counsel: [T]here is nothing in the rule to prohibit the police from questioning the accused in the absence of counsel after the accused has retained counsel. Presumably, counsel will inform the accused of the right to remain silent. If the police are not posing as undercover officers and the accused chooses to volunteer information, there will be no violation of the Charter. Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence. The right to silence conferred by s. 7 reflects these values. The suspect, although placed in the superior power of the state upon detention, retains the right to choose whether or not he will make a statement to the police. To this end, the Charter requires that the suspect be informed of his or her right to counsel and be permitted to consult counsel without delay. If the suspect chooses to make a statement, the suspect may do so. But if the suspect chooses not to, the state is not entitled to use its superior power to override the suspect s will and negate his or her choice. In other words, after a lawyer tells a client not to talk to the police, the police are allowed to: (i) interrogate, and (ii) try to change the suspect s decision about remaining silent. The extent of the persuasion is the accused s ability to make meaningful decisions. 4 R. v. Hebert (1990) 57 C.C.C. (3d), (S.C.C.).

6 In R. v. Wood (1994) 5, the suspect consulted with counsel before the police interviewed him. He attempted to interrupt the interview by asking for permission to contact his lawyer again. Concluding that the police did not violate the suspect s right to counsel by continuing the interview, the Nova Scotia Court of Appeal stated, at pp : Charter jurisprudence has imposed on the police the duty to cease questioning the detainee until he has had a reasonable opportunity of exercising the right to counsel. Otherwise, the detainee might incriminate himself, unaware of his right of choice not to do so. The position of the police in the interrogation of a person who has already received his right to counsel is, I believe, generally different. The police have now complied with the informational and implementational components of s. 10(b) of the Charter. Presumably, such a detained person has now been advised of the right to choose whether to talk or remain silent. The pressing need to stop questioning until counsel s advice has been obtained on this and other matters is no longer there. Circumstances, however, will always govern in every case. So in Black, supra, where the status of the detainee had changed and in R. (P.L.), supra, where the police had undertaken to secure counsel upon request, it was held that the police must cease questioning until counsel had been consulted. Other situations can readily be imagined, as for example, where it is obvious that the detainee does not understand his rights and is seeking further explanation of them. Thus, the right to counsel can, in certain circumstances, be reactivated. Subject to such situations, however, the advised detainee does not enjoy the automatic right of cessation of the interview merely upon indicating that he would like to speak to counsel. He who knows of his right to choose participates further in the interrogation at his peril.a detainee always has a right to a reasonable opportunity to consult counsel. However, once he is informed, he cannot, without more, stop an interrogation or investigation merely by purporting to exercise his right to counsel again. He can, of course, stop the interview by exercising his right to remain silent and, thus, withdraw further participation in it. However, the right to counsel is not something that can be asserted without reasonable limit. Police pressure, short of denying the right of choice or of depriving the detainee of an operating mind does not breach the right of silence once the detainee has been advised. In both Hebert and Woods, there is a presumption that a lawyer, once contacted, will have informed the accused of the right to remain silent. The Crown does not have the onus to prove that the accused was actually given that advice or that the accused understood the lawyer s consultation. This was emphasized in Hebert at p. 177: The Charter does not place on the authorities and the courts the impossible task of subjectively gauging whether the suspect appreciates the situation and the alternatives. Rather, it seeks to ensure that the 5 R. v. Wood (1994), CanLII 3976 (NS C.A.)

7 suspect is in a position to make an informed choice by giving him the right to counsel. The guarantee of the right to counsel in the Charter suggests that the suspect must have the right to choose whether to speak to the police or not, but it equally suggests that the test for whether that choice has been violated is essentially objective. Was the suspect accorded his or her right to consult counsel? By extension, was there other police conduct which effectively deprived the suspect of the right to choose to remain silent, thus negating the purpose of the right to counsel? In R. v. MacKay (2002) 6, the principles from Hebert and Wood were applied. In the Mackay case, the accused requested permission to make a second call to his lawyer during a police interrogation, after the accused had already talked to his lawyer. The acuused had been given the opportunity to consult with counsel at the time of his arrest, and had exercised that right prior to the interrogation. When he asked to speak with his lawyer once again during the interrogation, the police denied the request and continued the questioning, stating that he would see his lawyer later, in court. The Sask. C.A, ruled that the police denial did not constitute a sec. 10(b) Charter violation, stating: As counsel for the Crown correctly pointed out the right to counsel need not necessarily precede every encounter with the police; the true question is whether the accused has been advised of his rights and particularly the right to silence. It is clear from the course of the interrogation that when the examination resumed the appellant was aware of his right to remain silent and said that he would make no comment until a lawyer was present. This right, as counsel conceded in this court, is the most fundamental and most important at this early stage of the proceeding. In the circumstances the trial judge did not err in concluding that there had been no violation of his Charter rights. In R. v. Officerford (2001) 7, the accused person was detained for suspicion of impaired driving, was informed of his rights, invoked the right, and was given an opportunity to call a lawyer. The police officer left a message on the answering machine of the detainee s lawyer of choice but took no other steps to facilitate contact with that lawyer. The police officer then phoned duty counsel despite the accused s specific objection to speaking with duty counsel. Despite the objections, the accused did speak to duty counsel. The Ontario Court of Appeal stated that: as the accused had spoken to counsel, even though it was not counsel of choice, he had failed to meet the onus of proving a breach of his Charter rights on a balance of probabilities, adding that he had not testified on the voir dire that the police conduct impeded the assertion of those rights, or that he in any way misunderstood his rights at the time. 6 R. v. MacKay (2002), SKQB 122 (CanLII) 7 R. v. Officerford (2001), O.J. No (Ont. C.A.).

8 In R. v. Basko (2007) 8, (as explained in Part 1 of this series) the Sask. C.A, ruled that the Prosper rules are not mandatory and do not apply in every case. In this case, R. v. Weeseekase, the accused: had been in remand custody for nine days. had not one, but two, court appearances where she was represented by legal counsel. was presumed to have been given the essential advice regarding her right to remain silent. after asserting her desire to consult her counsel prior to giving a statement, then deciding against it, she in any event received the benefit of an additional overnight period to exercise the desired right. She was given another opportunity to contact counsel prior to the taking of the statement. We agree that in these circumstances different considerations apply, and the principles in Prosper are inapplicable. The court stated the following: It must be emphasized that the protections guaranteed by s. 10 of the Charter apply upon arrest or detention. There has been some confusion in analysis on the respondent s part, in approaching the central issue as though it were a s. 10(b) Charter issue. The Supreme Court of Canada s decision in the case of R. v. Oickle, 9 which was the Court s first discussion of the confessions rule subsequent to the introduction of the Charter, demonstrates how that confusion can be avoided. In Hebert, supra, McLachlin J. interpreted the right to silence in light of existing common law protections, such as the confessions rule. However, given the focus of that decision on defining constitutional rights, it did not decide the inverse question: namely, the scope of the common law rules in light of the Charter. One possible view is that the Charter subsumes the common law rules. But I do not believe that this view is correct, for several reasons. First, the confessions rule has a broader scope than the Charter. For example, the protections of s. 10 only apply on arrest or detention. By contrast, the confessions rule applies whenever a person in authority questions a suspect. Second, the Charter applies a different burden and standard of proof from that under the confessions rule. Under the former, the burden is on the accused to show, on a balance of probabilities, a violation of constitutional rights. Under the latter, the burden is on the prosecution to show beyond a reasonable doubt that the confession was voluntary. Finally, the remedies are different. The Charter excludes evidence obtained in violation of its provisions under s. 24(2) only if admitting the evidence would bring the administration of justice into disrepute: see R. v. Stillman (1997) 10 and R. v. Collins (1987) 11 and the 8 9 R. v. Basko (2007), SKCA 111 (CanLII). R. v. Oickle (2000), 2 S.C.R. 3 (S.C.C.) 10 R. v. Stillman (1997) CanLII 384 (S.C.C.), 1 S.C.R. 607.

9 related jurisprudence. By contrast, a violation of the confessions rule always warrants exclusion. [Emphasis added] From the transcript, the Sask. C.A. stated: The Oickle decision deals, in summary, with the inadmissibility of confessions where there is reasonable doubt as to voluntariness. If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it. Between these two extremes, oppressive conditions (which can include denial of access to counsel) and inducements by police interrogators can operate together to exclude confessions. If the trial judge properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for some palpable and overriding error which affected the trial judges assessment of the facts. V. Conclusions When an arrested person invokes the right to counsel and then changes his mind by waiving the right, the accused has made contradicting decisions. Although the Prosper rules are not mandatory in Saskatchewan in every case: 1. Ask for the reason why he changed his decision. a. inform him, in simple language, what the waiver means, i.e., the accused won t have the benefit of a lawyer s consultation. b. caution him again and emphasize his right to remain silent. c. electronically record both decisions. 2. If the arrested person is a young offender, the waiver must be in writing and the Prosper rules must be followed. 3. If the accused has talked to a lawyer, you can presume that the accused received proper consultation. You can t ask what the advice was because the lawyer-client conversation is private, protected, and privileged. 4. After an accused has talked to a lawyer once, he does not have the right to more consultations even if he asks. 11 R. v. Collins (1987) CanLII 84 (S.C.C.), 1 S.C.R. 265.