R. v. D.M.R.

2014 BCSC 63 R. v. D.M.R. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. D.M.R., 2014 BCSC 63 Date: 20140117 Docket: X076625 Registry: New Westminster Regina v. D.M.R. Restriction on Publication: Pursuant to s. 486.4 of the Criminal Code, there is a ban on publication, broadcast or transmission of the name of the complainant and any other information that may identify the complainant. These reasons for judgment comply with this publication ban. Corrected Judgment: The text of this judgment was corrected at paragraphs 66 and 67 where changes were made on January 23, 2014. Before: The Honourable Mr. Justice S.R. Romilly Ruling on a Voir Dire Counsel for the Crown: David K. Simpkin Counsel for the Accused: Janet Winteringham, Q.C. Tam C. Boyar Place and Date of Hearing: New Westminster, B.C. December 2-6, 9, 2013 and January 15, 2014 Place and Date of Judgment: New Westminster, B.C. January 17, 2014 I. NATURE OF APPLICATION [1] This is an application by the Crown for a ruling that the statements by the accused to persons in authority following her arrest were voluntarily made. [2] There is also an application by the defence that the impugned statements were made in breach of the accused's s. 7 and s. 10(b) rights and should be excluded pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms. Those sections provide as follows: Life, liberty and security of person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Arrest or detention 10. Everyone has the right on arrest or detention (b) to retain and instruct counsel without delay and to be informed of that right; Exclusion of evidence bringing administration of justice into disrepute 24. (2) Where a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [3] The defence submits that the statements were obtained in breach of the accused's right to silence under s. 7, including: (a) Failing to properly advise her of her right to silence; (b) Ignoring her repeated assertions of her right to silence such that she could not make a free and informed choice to talk to the police; (c) Frustrating the effective exercise of her right to silence by intentionally interrupting her when she tried to invoke that right; and (d) Subject to the evidence elicited on the voir dire, such further and other particulars as may be provided. [4] The defence submits the particulars of the breach of the accused's rights under s. 10(b) include: (a) Failing to properly advise the accused of her right to counsel; (b) Failing to give the accused access to counsel without delay, and in particular: (i) Failing to facilitate access to counsel immediately after her arrest; (ii) Failing to facilitate access to counsel immediately after her arrival at the RCMP Detachment; (iii) Failing to facilitate access to counsel until after she had been booked and searched; and (iv) Failing to take any steps to facilitate access to counsel for forty minutes after her arrest. (c) Failing to clear up the accused's confusion about her right to counsel, including, without limitation, the fact that her lawyer would not be attending at the RCMP Detachment; (d) Failing to cease the interview in circumstances where the accused's ability to participate in a police interview was impaired by prescription medication and Cpl. McCauley and Cst. Zacour knew that she had ingested prescription medication; (e) Failing to give the accused a subsequent opportunity to consult with a lawyer in circumstances where she was obviously confused about her right to counsel; and (f) Subject to the evidence elicited on the voir dire, such further and other particulars as may be provided. [5] Defence counsel submits that the impugned statements should be excluded under s. 24(2) of the Charter on the following grounds: (a) The Impugned Statements are conscriptive and were obtained in violation of her rights under ss. 10(b) of the Canadian Charter of Rights and Freedoms, the particulars of which are set out above; (b) The Impugned Statements were obtained in violation of her rights under s. 7 of the Canadian Charter of Rights and Freedoms, and in particular, her right to silence, the particulars of which are set out above; (c) The Impugned Statements, if admitted into evidence, would bring the administration of justice into disrepute; and (d) Subject to the evidence elicited on the voir dire, such further and other grounds as may be provided. [6] For the reasons that follow, I find the Crown has proven beyond a reasonable doubt that the impugned statements of the accused were made freely and voluntarily. I also find the accused has failed to prove on a balance of probabilities that the impugned statements were made in breach of her rights under s. 7 and s. 10(b) of the Charter. Accordingly, the statements will be admissible as evidence at trial. II. BACKGROUND [7] At approximately 8:30 p.m. on November 9, 2011, Cpl. McCauley and Cst. Stevens, of the Royal Canadian Mounted Police ("RCMP"), arrested the accused at her residence with respect to allegations that she committed sexual offences between 1998 and 2001 against the complainant, D.S., contrary to ss. 151 and 271 of the Criminal Code. [8] The arrest occurred after the complainant attended at the Langley Detachment of the RCMP on November 8, 2011, and reported incidents of sexual misconduct by the accused alleged to have occurred approximately ten years earlier. The accused was his former elementary school teacher. [9] The accused was arrested the day following the complainant's report. The circumstances of her arrest were as follows: (a) On November 9, 2011 at approximately 8:30 p.m., Cpl. McCauley and Cst. Stevens attended at the accused's residence; (d) The accused presented herself at the door and Cpl. McCauley read out an arrest script to her; (e) The arrest and events thereafter were audio-recorded; (f) Cpl. McCauley advised the accused that she had the right to retain and instruct counsel in this way: Q: Okay. So do you wanna call a lawyer? Typically we do that back at the station just so you know but do you wanna call a lawyer? And again we can, we'll set you up in a private room and you can call any lawyer you want but there is a free Legal Aid service which is available 24/7 which is, which is also an option for you? A: I don't know a lawyer. Q: Okay well there's a A: But Q: We do have a large list of lawyers that we can we can show you and you can look through that list of phone numbers and stuff or again there's a 24-hour hour Legal Aid service which can be utilized which is free of charge and they give free legal advice so A: Yes. Q: Would you like to call a lawyer? A: I don't get this. Q: Okay, we can go back to that after (g) The accused was not permitted to speak to a lawyer at that time. [10] Before departing the residence, the accused changed from her pajamas into street clothing. Cpl. McCauley noticed that there was a hospital bed in the accused's bedroom and consequently asked her if she was taking any medication. Upon being advised by her that she had to take prescription medication, he requested that she take it before they left for the detachment. [11] When the accused and Cpl. McCauley left the residence, the accused was handcuffed and placed in the back of a police vehicle. During the drive to the Langley RCMP Detachment, Cpl. McCauley and the accused spoke about the injuries she suffered in a motor vehicle accident. He did not discuss any of the circumstances surrounding the incidents for which the accused was arrested. [12] When the accused arrived at the detachment, she was booked and searched by Cst. Zacour. Before the videotaped statement was made, Cpl. McCauley again reminded the accused of her right to counsel. The following exchange occurred: Q: So as we discussed you have the right to speak to a lawyer. Would you like to speak to a lawyer? A: I don't know, should I? Q: I can't give you that advice ma'am it's completely your choice, I mean they are serious charges, serious allegations, so I can tell you that most people in your situation would speak to a lawyer but I can't give you advice or not on whether you should speak to one or not. As I mentioned there's a phone book that we can sit down and you can look through the phone book, the lawyer phone book, of all the lawyers in B.C. or there's the 24-hour Legal Aid service which is a free legal service that provides advice to people in custody, okay and they are a 24-hour service so I could call them right away if you wanted or I can get you a phone book or you can choose not to speak to a lawyer. It's completely your choice. A: What do most people do? Q: Like I said, it's, they are serious charges. A: [indecipherable] Q: Sorry? A: Just if I look in the book do I just sort of pick one? Q: Well yeah you A: How do you do that? Q: There's it says whether they're criminal lawyers or not, the thing is this time of night to be honest with you it might be difficult to get a hold of one. A: Oh. Q: That's why the 24-hour service is A: Okay. Q: I'm not pushing you there [13] This exchange continued and Cpl. McCauley ultimately telephoned the Legal Aid office after placing the accused in the telephone room. At 9:12 p.m., the accused commenced a phone discussion with Legal Aid counsel. The call concluded at 9:15 p.m. [14] Cpl. McCauley then advised the accused that Cst. Zacour was going to "sit down and have a chat with you and explain all this to you". The following exchange took place between Cpl. McCauley and the accused: Q: Have you been drinking at all tonight or anything? A: No, it's just how I get by the end of the night. Q: Yeah 'cause you're in a lot of pain right. A: I'm just ah yeah. Q: So I apologize for that A: That's okay. Q: Like I obviously didn't know you were you had these injuries and stuff. We'll try and keep things relatively quickly, I'll just ask that 'cause we wanna explain a couple of things to you and to be honest we want get your version of the your side of the story right because they are serious allegations and you know we do believe there's two sides to every story and we're you know fair police officers and we just wanna get to the bottom of it. Are you okay with that? A: [nothing heard] Q: Okay? A: Yes. Q: How are you feeling right now? A: That fellow said I shouldn't talk to the police. [15] The accused was then placed in an interview room. Cst. Zacour commenced the interview and Cpl. McCauley took over later. The videotaped interview lasted for 3 hours and 33 minutes: it commenced at 9:18 p.m. and concluded at 12:51 a.m. [16] Throughout the interview, the accused repeatedly asserted or attempted to assert her right to silence. These assertions include the following statements: (a) I think I'm not supposed to say anything. (b) I don't have anything else to say. (c) I don't know what else to say I just don't want to talk about it. (d) I think I shouldn't answer. That's what the man said. (e) If I answer that guy said I shouldn't talk. Why does he tell me that? I don't know, are you gonna ask me again when he's here? (f) I'm gonna wait until I don't know what I wait till but that I'm not gonna answer questions right now because I said well should I answer questions and he says no it's better off if you just remain silent So I'm just listening to this guy who was supposed to have been giving me some advice. (g) And that's across the board all I have to say. (h) I don't want to talk anymore. (i) I'm not going to talk about it anymore. III. VOLUNTARINESS AND CHARTER ISSUES ON THE SAME VOIR DIRE [17] The practice has been to deal with issues of voluntariness and alleged breaches of Charter rights on the same voir dire, in that order. In R. v. Nguyen, 2006 BCCA 397 at para. 12, Levine J.A., for the Court, wrote: [12] This case may provide a useful reminder to counsel and trial judges of the basic legal principles surrounding the admissibility of statements made by an accused to a person in authority. In my opinion, it also serves to point out the difficulties that could arise if an attempt were made to combine a voir dire on Charter issues with a voir dire on voluntariness. The onus and standards of proof on the issues are different: the accused has the onus to prove infringements of Charter rights on the balance of probabilities, while the Crown must prove the voluntariness of statements beyond a reasonable doubt. The sensible approach would be to determine the admissibility of statements first, followed by the examination of the Charter issues. [Emphasis added.] [18] The Supreme Court of Canada also held that the voluntariness inquiry should be dealt with first, followed by the alleged Charter breaches. In R. v. Grant, 2009 SCC 32 at para. 90, the Court wrote: [90] This case concerns s. 24(2). However, it is important to note at the outset that the common law confessions rule, quite apart from s. 24(2), provides a significant safeguard against the improper use of a statement against its maker. Where a statement is made to a recognized person in authority, regardless of whether its maker is detained at the time, it is inadmissible unless the Crown can establish beyond a reasonable doubt that it was made voluntarily. Only if such a statement survives scrutiny under the confessions rule and is found to be voluntary, does the s. 24(2) remedy of exclusion arise. Most commonly, this will occur because of added protections under s. 10(b) of the Charter. [Emphasis added.] [19] On this application, I will first deal with the voluntariness of the accused's statement, followed by an analysis of the alleged Charter breaches. IV. VOLUNTARINESS OF THE ACCUSED'S STATEMENT A. Modern Confessions Rule [20] In R. v. Oickle, 2000 SCC 38, the Supreme Court of Canada discussed the law relating to the voluntariness of confessions. At para. 47, Iacobucci J., for the majority, held that while the overriding concern of the confessions rule is with voluntariness, that concept overlaps with reliability in that an involuntary confession will often be unreliable. Thus, the application of the confessions rule is by necessity contextual. A trial judge must consider all the relevant factors when reviewing a confession, including: the existence of threats or promises; an atmosphere of oppression; whether the accused had an operating mind; and the existence of other police trickery. The presence of such factors can operate to render a confession involuntary and therefore inadmissible. [21] Defence counsel submits that in the accused's weakened, physical and emotional state, Cpl. McCauley's refusal to accede to her right to remain silent on 40 occasions resulted in an atmosphere of oppression. Defence counsel further submits that the accused did not have an operating mind at the time of her interview, rendering the impugned statements involuntary. [22] The modern-day confessions rule was recently articulated by Hill J. in R. v. Godday, 2013 ONSC 1298 at paras. 46-67: [46] An accused person's statement to a person in authority, whether inculpatory or exculpatory or a combination, is presumptively inadmissible. "Voluntariness is the touchstone of the confessions rule": R. v. Oickle (2000), 147 C.C.C. (3d) 321 (S.C.C.), at para. 69. The prosecution must establish beyond a reasonable doubt that the statement was made voluntarily: R. v. Spencer (2007), 217 C.C.C. (3d) 353 (S.C.C.), at para. 11. "The onus on the Crown is a heavy one". R. v. Sabri (2000), 166 C.C.C. (3d) 179 (Ont. C.A.), at para. 14. [47] Over time, the confession rule has developed, as its underlying rationale, concerns as to the reliability of the accused's statement in terms of its truthfulness, fairness to the accused including the right to freely choose whether to speak to the authorities or not, and the repute or integrity of the criminal justice system itself. While all these aspects of the voluntariness rule often overlap and fall to be assessed on the facts in any particular case, the concern for reliability remains the "primary reason" for the confessions rule: R. v. Singh (2007), 225 C.C.C. (3d) 103 (S.C.C.), at paras. 29-30; ; R. v. McIntosh (1999), 141 C.C.C. (3d) 97 (Ont. C.A.), at para. 20. The admissibility rule effectively maintains a balance between individual and societal interests. [48] Applying the voluntariness test of admissibility is essentially a question of fact: Oickle, at paras. 23, 71; Singh, at para. 53; McIntosh, at para. 21. In assessing voluntariness, the court must be sensitive to the particularities of the individual suspect including his or her state of mind during police questioning: Oickle, at para. 42; Singh, at para. 36. In effect, the application of the confession rule "will by necessity be contextual": Oickle, at paras. 47, 71. All relevant circumstances, the "entire context", must be examined: Spencer, at para. 17; Oickle, at paras. 54, 71, 88. [53] The concept of oppression focuses on conduct of the police improperly overbearing or undermining the free will of an arrestee to choose whether or not to speak to the police: [citations omitted]. The "absence of oppression is important not only in its own right, but also because it affects the overall voluntariness analysis": Oickle, at para. 87. [54] Depending on the facts of the specific case, the court may be compelled to determine whether the accused's statement to a person in authority was the result of an inducement on the part of the police - a promise or hope of advantage, or fear of prejudice. An inducement to elicit a confession may be express or implicit. Not every inducement by a police interviewer is necessarily fatal to a finding of voluntariness - police actions become "improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne": Oickle, at para. 57. The same paragraph continues: "The most important consideration in all cases is to look for a quid quo pro offer by interrogators, regardless of whether it comes in the form of a threat or a promise". There must be actions of the police, verbal or otherwise, which operate to induce the making of a statement through fear or hope of advantage. In other words, "In some cases the hope may be self-generated. If so, it is irrelevant": Oickle, at para. 57; R. v. Hobbins (1982), 66 C.C.C. (2d) 289 (S.C.C.) at 292. [55] As discussed in Spencer, at paras. 13 and 15, while the existence of a quid quo pro may not be "an exclusive factor, or one determinative of voluntariness", it is nevertheless an "important factor in establishing the existence of a threat or promise". Even then, "while a quid quo pro may establish the existence of a threat or promise, it is the strength of the alleged inducement that must be considered in the overall contextual inquiry of voluntariness": Spencer, at para. 19. [67] Under the common law voluntariness rule of admissibility, the Crown must prove voluntariness beyond a reasonable doubt. A violation of the voluntariness confessions rule, unlike the discretionary grant of a remedy pursuant to section 24(2) of the Charter, "always warrants exclusion": Singh, at para. 38. B. "Operating Mind" [23] The "operating mind" doctrine requires courts to ensure that the person making a confession possesses a sufficient degree of awareness to know what he is saying and that he is saying it to police officers who can use it to his detriment: R. v. Whittle, [1994] 2 S.C.R. 914 at 936. The Court in Whittle phrased the test for determining whether the accused possessed an operating mind as follows: The operating mind test, therefore, requires that the accused possess a limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused. Indeed it would be hard to imagine what an operating mind is if it does not possess this limited amount of cognitive ability. In determining the requisite capacity to make an active choice, the relevant test is: Did the accused possess an operating mind? It goes no further and no inquiry is necessary as to whether the accused is capable of making a good or wise choice or one that is in his or her interest. [Emphasis added.] [24] In R. v. R.D.D., 2005 ABQB 252, Watson J. (as he then was), analyzed the Whittle decision: [163] The question of operating mind is for this specific screening purpose somewhat separated conceptually from the state of mind of voluntariness, and from the state of awareness associated with sufficient understanding of the rights that an individual has - particularly when dealing with state agents and particularly under ss. 7, 10(a) and 10(b) of the Charter. [164] The basis level of understanding required for 'operating mind' can be met even if the person's mental state is afflicted by intoxicants, mental disorder, intimidation or ignorance though such factors are not irrelevant. The existence of such factors may be, moreover, relevant to the issues of voluntariness and the level of awareness associated with sufficient understanding of the individual's rights under the Charter. [25] In Oickle at para. 63, Iacobucci J. described the operating mind requirement as an aspect of the confessions rule. He reiterated the holding from Whittle that the operating mind requirement "does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment". Iacobucci J. also clarified that the operating mind doctrine is an aspect of the confessions rule and should not be understood as a discrete inquiry. [26] In R. v. Hebert, [1990] 2 S.C.R. 151 at 177, McLachlin J. (as she then was) stressed the following: I should not be taken as suggesting that the right to make an informed choice whether to speak to the authorities or to remain silent necessitates a particular state of knowledge on the suspect's part over and above the basic requirement that he possess an operating mind. 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 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 suggest 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? [Emphasis added.] [27] In other words, the mental element required by an accused before a confession will be accepted as voluntary is that of an "operating mind": the Horvath v. The Queen, [1979] 2 S.C.R. 376, and Ward v. The Queen, [1979] 2 S.C.R. 30, test. The test is essentially an objective one with a limited subjective element. C. Atmosphere of Oppression [28] At para. 58 of Oickle, Iacobucci J. pointed out that oppression has the potential to produce false confessions. He stated at para. 60: [60] Under these circumstances, it is no surprise that the Court of Appeal concluded the statement was involuntary. Under inhumane conditions, one can hardly be surprised if a suspect confesses purely out of a desire to escape those conditions. Such a confession is not voluntary. For similar examples of oppressive circumstances, see R. v. Owen (1983), 4 C.C.C. (3d) 538 (N.S.S.C., App. Div.); R. v. Serack, [1974] 2 W.W.R. 377 (B.C.S.C.). Without trying to indicate all the factors that can create an atmosphere of oppression, such factors include depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time. [29] In resolving the issues raised on this voir dire, the following quotation from Hebert at 180 is apposite: 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. [30] I also find the following statement by Neilson J. (as she then was) in R. v. Baidwan (No. 2) (11 March 2002), Vancouver CC001678A at para. 76 (B.C.S.C.) to be relevant: I do not dismiss the notion that a failure to allow further consultation with counsel, in the face of repeated requests, may be a relevant factor to consider in the context of oppression. However, as Mr. Justice Chipman states in R. v. Wood at paragraph 115, the right must be asserted within reasonable limits and cannot be used simply as a ploy to stop an interview. In this case, I do not believe Corporal Bishop's failure to accede to Mr. Baidwan's requests for counsel ever approached a level of oppression, or a denial of his right of choice, or deprived him of an operating mind. D. Right to Silence Under Section 7 of the Charter [31] A person suspected of or charged with a crime has a right to silence that she or he can exercise during the investigation: R. v. Chambers, [1990] 2 S.C.R. 1293 at 1315. This right to silence is a basic tenet of our legal system and falls within the ambit of s. 7 of the Charter: Chambers at 1316; Hebert at 161. [32] In R. v. Singh, 2007 SCC 48, the accused was arrested, properly cautioned, advised of his right to counsel, and privately consulted with a lawyer. The accused was subsequently interviewed twice by a police officer while in detention. During these interviews, the accused stated on numerous occasions that he did not want to talk about the incident, that he knew nothing about it, and that he wished to return to his cell. On each occasion, the officer persisted in questioning the accused and confronting him with incriminating evidence. The officer testified that he intended to put the police case before the accused in an attempt to elicit a confession, no matter what. [33] During the first interview, the accused did not confess but made incriminating statements, including admitting that he had been in the pub on the night of the shooting and identifying himself in pictures taken from video surveillance. The accused asserted his right to silence 18 times before making these admissions. He challenged the admission of these statements on the basis that his s. 7 right to silence was violated by the continued police questioning in the face of his assertions. [34] A 5-4 majority of the Supreme Court of Canada held that there is considerable overlap between the common law confessions rule and the pre-trial right to silence under s. 7 of the Charter. According to the majority, in the context of a police interrogation where the detainee knows that he or she is speaking to a person in authority, the two tests are functionally equivalent. Accordingly, where a statement to a uniformed police officer survives a thorough voluntariness inquiry, the accused's Charter application alleging that the statement was obtained in violation of the pre-trial right to silence under s. 7 cannot succeed. Conversely, if circumstances are such that the accused can show, on a balance of probabilities, that the statement was obtained in violation of the constitutional right to remain silent, the Crown will be unable to prove voluntariness beyond a reasonable doubt. Thus, Charron J., writing for the majority, held that the confessions rule effectively subsumes the constitutional right to silence when an obvious person in authority interrogates a detainee. [35] The majority also held that the notion of voluntariness within the confessions rule includes the common law principle that a person is not obliged to give information to police or answer questions. With respect to any alleged breach of s. 7 based on the right to silence, the focus is on the conduct of the police and its effect on the suspect's ability to exercise his or her own free will. The voluntariness inquiry requires courts to scrutinize whether the accused was denied the right to silence. Therefore, a finding of voluntariness will determine the s. 7 issue. [36] According to Charron J., s. 7 does not oblige police to stop questioning a suspect who clearly asserts the right to silence. Police may use legitimate means of persuasion to try to obtain a statement from a detainee who has asserted a choice to remain silent. However, the police may not ignore the detainee's freedom to choose whether to speak. Police persistence in continuing the interview, despite repeated assertions by the detainee that he wishes to remain silent, may well raise a strong argument that any subsequently obtained statement was not the product of a free will to speak to the authorities. The ultimate question is whether the accused exercised free will when choosing to make a statement. [37] In R. v. Rybak, 2008 ONCA 354, Watt J.A. dealt with the issue of whether an accused's right to silence was infringed when the police continued to question him, notwithstanding his many assertions of the right to remain silent. He wrote: [189] In this case, the trial judge concluded that police conduct did not compromise the appellant's right of choice. Investigators repeatedly told the appellant that it was his choice whether to speak with them, and nothing the questioners did or said could take away from that statement. Nowhere did any officer tell the appellant that his (the appellant's) silence could be used against him. Any implicit message to a similar effect did not compromise the appellant's freedom to choose. The common law recognizes an individual's right to remain silent, but the right to remain silent does not include or extend to the right not to be spoken to by state authorities (R. v. Singh, [2007] 3 S.C.R. 405, [2007] S.C.J. No. 48, 2007 SCC 48, at para. 39). Likewise, the right to silence contained within the s. 7 Charter guarantee does not prohibit police from questioning a detainee. Police persuasion, which falls short of denying the detainee the right to choose or of depriving him or her of an operating mind, does not breach the right to silence (Singh, at para. 46; and R. v. Hebert, [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64, at p. 184 S.C.R.). [190] A lengthy interview, coupled with repeated refusals to answer some questions without first speaking to a lawyer, mandate close judicial scrutiny of the admissibility of the record of interview (R. v. Roy, [2003] O.J. No. 4252, 180 C.C.C. (3d) 298 (C.A.), at pp. 303-04 C.C.C.). In the end, what must be decided is whether the conduct of the state authorities denied the appellant the right to choose speech or silence, or deprived him of an operating mind (Hebert, at p. 184 S.C.R.; Singh, at para. 46). [Emphasis added.] [38] In Godday, Hill J. also dealt with the accused's right to choose to remain silent in the face of persistent police questioning: [49] An arrestee who is in custody cannot simply walk away from police questioning. There is undoubtedly a vulnerability for the accused who undergoes custodial interrogation and a greater risk of abuse of power by the police: Singh, at paras. 32, 45; R. v. Hebert (1990), 57 C.C.C. (3d) 1 (S.C.C.), at para. 52. Accordingly, close scrutiny of the police interviewer's actions is necessary in the context of the specific detainee and his or her personal circumstances. [50] That said, there exists no right for an arrestee not to be spoken to by the authorities and "[t]he importance of police questioning in the fulfilment of their investigative role cannot be doubted": Singh, at para. 28; The authorities are entitled to use legitimate means of persuasion to have a suspect provide a statement: Hebert, at paras. 53, 73; Oickle, at para. 33; Singh, at para. 47; [51] An in-custody arrestee has the right to choose to remain silent. The common law voluntariness and section 7 Charter tests for determining whether there was constitutional compliance with an accused's right to choose whether or not to remain silent are functionally equivalent: Singh, at paras. 25, 37, 39, 49. [52] The right of an arrestee to choose to speak to a person in authority, and knowledge of that right on his or her part, "is reflected in the usual police caution given to a suspect and the importance attached (even before the advent of the Charter) to the presence of a caution as a factor in determining the voluntariness of a person under arrest or detention": Singh, at para. 31; see also R. v. E.B. (2011), 269 C.C.C. (3d) 227 (Ont. C.A.), at paras. 86-8; The "right" has at least two components - the fact of a choice whether or not to say anything to the police and that if the choice is to speak the consequence is that whatever is said may be used as evidence in court if the arrestee is charged: E.B., at para. 91. [53] Although by no means the exclusive circumstances of oppressive actions, the courts often look to the presence of distasteful custodial conditions, inhumane conditions, confrontation with fabricated or non-existent evidence, unfair trickery, or "excessively aggressive, intimidating questions": Oickle, at paras. 58-60. That is not to say that questioning cannot be "persistent and accusatorial" and "firmly" administered: Oickle, at paras. 2, 57. Assessment is made, however, as to whether responses to police questioning were the result of improperly unfair pressures or conduct of the authorities effectively overcoming the exercise of the choice to speak. The police cannot simply ignore an accused's right to silence by resort to any means to elicit confessional statements. E. Discussion and Analysis [39] The accused in the case at bar is a highly educated person. She has been a primary school teacher for 25 years. On this voir dire, I have had the opportunity to listen to the audio and watch the video of the interactions between the accused and the police. It is clear that after she consulted counsel, she understood her right to silence. In fact, she asserted that right on numerous occasions. I am not satisfied that the right was overborne by the continued questioning by the police in the face of the accused's repeated assertions. Under these circumstances, it is clear that the accused was in a position to make an informed choice to speak after she was given the right to consult counsel. In my view, the accused only began to make admissions to the police after the tearful interview of the complainant was played. [40] As well, I specifically reject the accused's version of the prescription medication she consumed prior to the interview. On the evidence, I find that these medications were for anxiety and depression. In the audio recording of the conversation between Cpl. McCauley and the accused about her medication, there is no mention of the accused taking a sleeping pill and the only reference to oxycodone ("Oxy") is a reference to the fact that she used to take it for pain and that she had run out. There is no reference to the fact that she had taken Oxy and/or a sleeping pill that day. I reject her testimony that she took a sleeping pill and/or Oxy before leaving her residence for the detachment with Cpl. McCauley. [41] On the issue of whether the accused had an operating mind, defence counsel elicited evidence from Dr. Jeffries, a qualified expert in psychopharmacology and psychopathology. However, I attach no weight whatsoever to his testimony. The doctor never interviewed the accused in order to ascertain her normal manner of speaking. He simply relied on the audio and video of the interactions between the police and the accused. I note that in R. v. Boucher, 2005 SCC 72, the Court agreed that no weight can be given to expert evidence which is based upon disbelieved evidence, i.e. the medication the accused consumed that evening. [42] After reviewing the audio and video recordings entered into evidence on this voir dire, there can be no doubt that the accused had an operating mind when she spoke to the interrogating police officers. The medication that the accused consumed before the interview did not seem to have any effect on her ability to give responsive answers to questions from the police. At one stage in the interview she remarked, "I am not dumb." In fact, the only effect that the medication taken by the accused before the interview seemed to have on her was making her mouth dry. [43] In the case at bar, I do not believe that Cpl. McCauley's failure to accede to the accused's requests to remain silent ever approached a level of oppression, a denial of her right to choose to remain silent, or a deprivation of her operating mind. In my view, Cpl. McCauley did not do anything to override the accused's will and negate her choice to speak to him or remain silent. [44] The evidence does not disclose the existence of threats, an atmosphere of oppression, or other police trickery which could have induced the accused into making the impugned statements. There was no quid pro quo, promise of hope or advantage, or fear of prejudice such as to render the accused's statements involuntary. F. Decision on Voluntariness [45] On the basis of the foregoing, I am satisfied that the Crown has proven beyond a reasonable doubt that the statements by the accused to Cpl. McCauley and Cst. Zacour were made freely and voluntarily. Accordingly, the accused's Charter application alleging that the impugned statements were obtained in violation of her pre-trial right to silence under s. 7 cannot succeed. V. RIGHT TO COUNSEL UNDER SECTION 10(b) OF THE CHARTER A. Purpose of s. 10(b) of the Charter [46] The purpose of s. 10(b) is to ensure that a detainee is not only aware that he or she is not obliged to speak with police or cooperate with their investigation, but is also aware of how to exercise those rights. This was reiterated by McLachlin C.J.C. and Charron J., writing for the majority, in R. v. Sinclair, 2010 SCC 35: [26] The purpose of the right to counsel 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 pp. 1242-43. The emphasis, therefore, is on assuring that the detainee's decision to cooperate with the investigation or decline to do so is free and informed. Section 10(b) does not guarantee that the detainee's decision is wise; nor does it guard against subjective factors that may influence the decision. Its purpose is simply to give detainees the opportunity to access legal advice relevant to that choice. [29] The s. 10(b) right to consult and retain counsel and to be advised of that right supports the broader s. 7 right to silence. However, it is not to be confused with the right to silence. An important purpose of legal advice is to inform the accused about his right to choose whether to cooperate with the police investigation and how to exercise it. Section 10(b) is a specific right directed at one aspect of protecting the right to silence -- the opportunity to secure legal assistance. [32] We conclude that in the context of a custodial interrogation, the purpose of s. 10(b) is to support the detainee's right to choose whether to cooperate with the police investigation or not, by giving him access to legal advice on the situation he is facing. This is achieved by requiring that he be informed of the right to consult counsel and, if he so requests, be given an opportunity to consult counsel. [47] In R. v. Willier, 2010 SCC 37 at para. 29, the Court stated: [29] The purposes of s. 10(b) serve to underpin and define the rights and obligations triggered by the guarantee. In Bartle, Lamer C.J. summarized these rights and obligations in terms of the duties imposed upon state authorities who make an arrest or effect a detention (p. 192). Section 10(b) requires the police (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger). [48] The first of the requirements is referred to as the informational duty. The second and third are components of what has been called the implementational duty. [49] In R. v. Manchulenko, 2013 ONCA 543, Watt J.A., for the Court, summarized these duties when a suspect is detained: [64] Section 10(b) of the Charter has two components. The first, the informational component, requires and ensures that the detainee is advised of his or her rights to counsel. The second, the implementational component, requires that the detainee be given a reasonable opportunity to exercise his or her right to counsel, should she or he decide to do so. Implicit in the implementational component is a duty on the police to hold off questioning or requiring the detainee to participate in investigative procedures, or eliciting evidence until the detainee has a reasonable opportunity to consult counsel: Sinclair, at para. 27. [65] The duties of the police under the implementational component of s. 10(b), however, are not absolute. Unless the detainee invokes the right to counsel and is reasonably diligent in exercising it, the correlative duties of the police to provide a reasonable opportunity for the detainee to exercise the right, and to refrain from eliciting evidence, will either not arise in the first place or will be suspended: Sinclair, at para. 27; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 33; R. v. Tremblay, [1987] 2 S.C.R. 435, at p. 439; and R. v. Black, [1989] 2 S.C.R. 138, at pp. 154-155. [66] When a detainee, diligent but unsuccessful in contacting counsel, changes his or her mind and decides not to pursue contact with a lawyer, s. 10(b) requires the police to explicitly inform the detainee of his or her right to a reasonable opportunity to contact counsel and of the police obligation to hold off in their questioning or otherwise eliciting evidence until then: Willier, at para. 32; Prosper, at p. 274. What amounts to reasonable diligence in the exercise of the right to contact counsel depends on the context, and requires a fact-specific inquiry into all the circumstances: Willier, at para. 33. [50] In Godday, Hill J. wrote: [57] As a general rule, the right to counsel must be provided immediately at the outset of a detention: R. v. Suberu, [2009] 2 S.C.R. 460, at paras. 2, 37-42; R. v. Grant, [2009] 2 S.C.R. 353, at para. 58. [59] The second and third duties are not triggered until an arrestee, knowledgeable of his or her right to consult counsel, "indicate[s] a desire to exercise" the right to counsel: Willier, at para. 30; Fuller, 2012 ONCA 565, at paras. 31-2. B. "Without Delay" [51] In my view, this area of the law is quite confusing. Some of this confusion is due to the fact that in R. v. Suberu, 2009 SCC 33, the Supreme Court of Canada stated that the words "without delay" in s. 10(b) mean "immediately". At para. 42, McLachlin C.J.C and Charron J. wrote: [42] To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill-defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. [52] The right to consult counsel immediately, however, must be considered in concert with the right to consult counsel in private. In R. v. Brydges, [1990] 1 S.C.R. 190 at 215, Lamer J. (as he then was) observed: All of this is to reinforce the view that the right to retain and instruct counsel, in modern Canadian society, has come to mean more than the right to retain a lawyer privately. It now also means the right to have access to immediate, although temporary, advice from duty counsel irrespective of financial status. These considerations, therefore, lead me to the conclusion that as part of the information component of s. 10(b) of the Charter, a detainee should be informed of the existence and availability of the applicable systems of duty counsel and Legal Aid in the jurisdiction, in order to give the detainee a full understanding of the right to retain and instruct counsel. [53] A right to consultative privacy inheres in the right to counsel under s. 10(b) and should be respected. There is no obligation on the part of the detainee to request or inquire as to the right to consult counsel in private. When exercising the right to access counsel, a detainee is entitled to privacy: R. v. McKane (1987), 35 C.C.C. (3d) 481 at 486 (Ont. C.A.), per Martin J.A.; R. v. Playford (1987), 40 C.C.C. (3d) 142 at 155-61 (Ont. C.A.), per Goodman J.A.; R. v. Jackson (1993), 86 C.C.C. (3d) 233 at 239-41 (Ont. C.A.), per Goodman J.A.; R . v. Gilbert (1988), 40 C.C.C. (3d) 423 at 423 (Ont. C.A.), per Blair J.A.; R. v. O'Donnell, 2004 NBCA 26; R. v. Cairns (2004), 182 O.A.C. 181; and R. v. Luu, 2006 BCCA 73. Failure to advise the accused of their right to instruct counsel in private does not, however, amount to a breach of a right of an accused: R. v. Haudegand (1989), 77 Sask.R. 280 at 280-82 (Q.B.); and R. v. Rudolph (1986), 32 C.C.C. (3d) 179 at 182-84 (Alta. Q.B.). [54] The privacy requirement complicates the provision of the opportunity to consult counsel "without delay" where the arrest or detention takes place on premises occupied by and known to the suspect. To prevent the arresting officers from overhearing the conversation, it often seems necessary for the suspect to be allowed in a room alone. This presents safety concerns for the officers and may enable the suspect to abscond. However, delaying consultation with a lawyer until after transfer to the police station is often held to make it untimely. In my view, the solution seems to be that if the suspect wishes to consult counsel and transportation to the detachment is not immediate or will potentially be lengthy, he or she should be offered it at the scene but without privacy. The Court of Appeal held that the failure of an officer to provide the accused the option of contacting counsel without privacy amounted to a breach of s. 10(b) in R. v. Bui, 2005 BCCA 482. [55] In any event, an analysis of an alleged breach of the right to consult counsel without delay is entirely dependent on the facts of each specific case. C. Informational Component [56] The question of whether the detainee is properly informed of his or her right to counsel should not be assessed simply by looking at the precise wording of the formal statement/arrest script which the police read upon arrival. The informational component of s. 10(b) is not simply concerned with a ritualistic incantation, but with whether the substance of the right was adequately communicated. Thus, as the Court said in R. v. Latimer, [1997] 1 S.C.R. 217 at 236, the question of whether the police have complied with the informational duty "must always be determined with regard to all the circumstances of [the] case". What must be considered is whether "the essence" of the right was "adequately communicated" to the detainee: R. v. Bartle, [1994] 3 S.C.R. 173 at 202. Failure to properly advise the detainee is, in itself, a breach of s. 10 of the Charter. A failure on the part of the detainee to exercise the right to counsel diligently after such a breach is irrelevant: Bartle at 198. This, of course, is consistent with common sense: a person who is not told about the right to counsel cannot be expected to exercise it diligently: R. v. Evans, [1991] 1 S.C.R. 869 at 891. [57] I mean no disrespect when I say that the submissions in the case at bar seem to conflate the informational and implementational duties under s. 10(b) of the Charter. Nevertheless, there is no allegation of a breach of the informational duty in this case. The accused was told of her right to obtain counsel immediately upon arrest. [58] While defence counsel's argument implies that the police could have informed the accused of the right to use her own telephone or the arresting officer's cell phone to access counsel at the residence, that obligation might only have to be considered if she asserted her right to counsel at that time. On the facts of this case, the accused did not assert her right to counsel until she arrived at the Langley RCMP Detachment. D. Implementational Component [59] I now turn to whether the accused has established, on a balance of probabilities, that the police did not provide her access to counsel "without delay". [60] As discussed, Suberu stands for the proposition that "without delay" means "immediately". There has been confusion over what this standard entails in cases where a telephone is not readily available or where practical circumstances make the implementational duty of s. 10(b) difficult or impossible. In R. v. Luu, 2006 BCCA 73 at para. 30, K. Smith J.A., for the Court, wrote: [30] In my view, the trial judge erred in rejecting this submission on the basis that the delay at the scene was very short and was not unreasonable in the circumstances. In R. v. Strachan, [1988] 2 S.C.R. 980, Dickson C.J.C. observed, at p. 999, that once police have the arrest scene under control, there is no reason not to allow the person arrested to telephone a lawyer and that the denial of the s. 10(b) right to counsel begins at that point. Chief Justice Lamer, speaking for the court in R. v. Manninen, [1987] 1 S.C.R. 1233 at 1242, stated that, where a telephone is available, it is the duty of the police to offer the use of it to facilitate contact with counsel, at least in the absence of urgency. There was no urgency here and there were telephones available to be used in the residence where the appellants were arrested. Moreover, that Constable Canning believed he could not offer the appellants privacy is no answer to his failure to do his duty. In R. v. Bui, 2005 BCCA 482, this Court upheld the decision of a trial judge that the failure to give the appellants in that case the option of contacting counsel without privacy amounted to an infringement of their s. 10(b) rights. [61] A more recent case on point with defence counsel's argument is R. v. Taylor, 2013 ABCA 342, 302 C.C.C. (3d) 181. In that case, the accused asserted his right to counsel as soon as he was informed of it; however, the police did not facilitate that right and denied the accused cell phone access at both the accident scene and hospital. Berger and O'Brien JJ.A., for the majority, found that s. 10(b) was violated. They wrote: [12] We acknowledge that there may be situations where it is impractical (including the hypothetical examples cited by Slatter J.A.) to provide access to a telephone from an accident scene or a hospital corridor. This is not one of those situations. Here, none of the practical limitations set out in para. 26 of our colleague's reasons were applicable - the detainee did not need urgent medical care and was capable of, and wanting to speak to counsel. There is no suggestion that providing telephone access would have disrupted the scene or interfered with police investigations. Nor was the detainee uncooperative or otherwise difficult to control. He was not handcuffed and was permitted to walk to the ambulance. [13] We do not accept the supposed lack of privacy as an excuse for failing to provide cell phone access at the hospital. The officers could surely have withdrawn a sufficient distance to provide an adequate measure of privacy while at the same time keeping the Respondent under observation. Once again, with great respect, our colleague relies upon a hypothetical scenario to create impracticability. Constable MacGillivray did not rely upon any such impracticability - he admitted that the failure to provide a cell phone was his fault. [14] In R. v. Manninen at para. 22, the Court held that the duty to facilitate "included the duty to offer the respondent the use of the telephone" if one was available before transporting a detainee to the police station. In R. v. George (2004), 187 C.C.C. (3d) 289, Gillese J.A., on behalf of the Ontario Court of Appeal, stated that "the ready availability of a telephone is a relevant factor for the court to consider in determining whether a detainee had a reasonable opportunity to consult counsel during the period of time between the issuance of the demand and the time at which the demand could actually be carried out" (para. 34). In R. v. Edwards, 2009 NLTD 167, Handrigan J. of the Newfoundland & Labrador Supreme Court concluded that a police officer was required to make her personal cell phone available to a detainee when she was otherwise making use of that phone in carrying out her duties as a police officer. [62] In my view, Slatter J.A. was correct when he stated at para. 77, in dissent: [77] Read in context, Suberu stands for the proposition that once a "reasonable opportunity" arises, the police must facilitate the detainee's ability to contact counsel "immediately". "That right", referred to in the phrase "a duty to facilitate that right immediately upon detention", is the right to take advantage of the "reasonable opportunity" immediately upon it arising, not the right to do something before it is practically possible. [63] In fact, I find his reasoning so compelling that I will repeat it in its entirety. He held at paras. 73-79: [73] Section 10(b) of the Charter gives a detained person the right to consult with counsel "without delay". The case law, including R. v Prosper, [1994] 3 SCR 236 and R. v Bartle, [1994] 3 SCR 173 at p. 192, has identified three duties the police have upon arresting or detaining an accused: (a) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel; (b) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and (c) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger). (Emphasis added) The first duty is the "informational" duty, and the last two are "implementational" duties that are triggered if the detained person wants to contact counsel. [74] A recent case on the topic is R. v Suberu, 2009 SCC 33, [2009] 2 SCR 460 where the Court considered the words "without delay" in the context of "investigative detention". The majority stated at para. 42: In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. (Emphasis added) The wide wording of this passage causes problems in implementation: see Jennifer Woollcombe, "Grant, Suberu and Harrison: Detention, the Right to Counsel and a New Analysis under Section 24(2): Some Practical Impacts" (2010), 51 SCLR (2d) 479 at pp. 491-3. Did the Supreme Court mean literally that the police have to facilitate the right to consult counsel "immediately upon detention"? Does that mean that the police have to hold a cell telephone to the ear of an injured detainee immediately upon their arrival at the scene? That seems improbable. If nothing else, any contact with counsel that occurred in such situations is unlikely to be even slightly effective. [75] This passage in Suberu only admits on its face to two exceptions to the "immediate" facilitation of the right to counsel: (a) concerns for officer or public safety, and (b) such limitations as prescribed by law and justified under s. 1 of the Charter. There is no stated exception for the practical exigencies of the situation, although the courts have read them in in s. 10(b) cases, and related "forthwith" cases: (a) The need of the detainee to receive medical care: R. v Willier, 2008 ABCA 126 at para. 58, 89 Alta LR (4th) 22, 429 AR 135 affm'd 2010 SCC 37, [2010] 2 SCR 429; (b) Delays caused by proceeding to the police station to have private access to a telephone, or waiting for the availability of a telephone: R. v Montgomery, 2009 BCCA 41 at para. 36, 241 CCC (3d) 469, approved in R. v Ashby, 2013 BCCA 334 at para. 71; R. v Devries, 2009 ONCA 477 at paras. 30-32, 95 OR (3d) 721; R. v Nelson, 2010 ABCA 349 at paras. 17-19, 490 AR 271; R. v K.W.J., 2012 NWTCA 3 at paras. 28-30, 524 AR 75; (c) Time needed to control the scene, and conduct reasonable investigations at the scene of the arrest: R. v Harding, 2010 ABCA 180 at paras. 17, 35, 482 AR 262; R. v Cunha, 2010 ONSC 4072, 214 CRR (2d) 32 applying R. v Bernshaw, [1995] 1 SCR 254 and R. v Orbanski, 2005 SCC 37, [2005] 2 SCR 3; Montgomery at para. 35; Ashby at para. 70; (d) Time needed to deal with the personal property and affairs of the detained person: Nelson at paras. 16, 19. For example, it might be necessary for the police to arrange for a tow truck to remove the vehicle of the detained person. As noted by this court in Nelson at para. 17: "People are not always arrested in locations where it is possible for police to implement access to counsel. Immediacy does not mean instantaneous; practical considerations still play a role, particularly with respect to the police's obligation to implement an arrested person's contact with counsel." As a general rule, the "reasonable opportunity" to consult counsel will arise when the detained person has been transported to the police station. [76] The solution to this apparent problem is to read the decision in Suberu as a whole, in the context of the rest of the case law. Earlier in the reasons, the majority affirmed Bartel, quoted supra, para. 24, when Suberu stated: 38 Once engaged, s. 10(b) imposes both informational and implementational duties on the police. The informational duty requires that the detainee be informed of the right to retain and instruct counsel without delay. The implementational obligation imposed on the police under s. 10(b), requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel. This obligation also requires the police to refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach a lawyer, or the detainee has unequivocally waived the right to do so. (Emphasis added) The reference to a "reasonable opportunity" comes from cases like R. v Manninen, [1987] 1 SCR 1233 at pp. 1241-2, and Prosper, where the majority said at p. 269 "what constitutes a 'reasonable opportunity' will depend on all the surrounding circumstances". [77] Read in context, Suberu stands for the proposition that once a "reasonable opportunity" arises, the police must facilitate the detainee's ability to contact counsel "immediately". "That right", referred to in the phrase "a duty to facilitate that right immediately upon detention", is the right to take advantage of the "reasonable opportunity" immediately upon it arising, not the right to do something before it is practically possible. [78] The Court in Suberu held at para. 40 that the purpose of s. 10(b) is to assist detainees in regaining their liberty, and guard against the risk of involuntary self-incrimination. It is not inconsistent with these objectives to recognize that in some cases there may be practical limitations on affording the detainee a "reasonable opportunity" to contact counsel. That is because of the second part of the implementational duty, the duty to refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach a lawyer. The very existence of the second part of the implementational duty assumes that there will be cases where some time passes between when the informational duty has been discharged, and when the "reasonable opportunity" arises. If the opportunity to consult counsel invariably and literally must be facilitated "immediately", there would be no need for the second part of the duty. [79] Suberu was not primarily concerned with the implementational issue. It was mostly concerned with when "detention" occurs, and specifically whether detention can occur prior to arrest. The majority saw the issue as: 2 The specific issue raised in this case is whether the police duty to inform an individual of his or her s. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention Binnie J., dissenting, saw the issue as arising from: The suggestion by the Court of Appeal in this case that the wording of the Charter, construed purposefully, permits "a brief interlude between the commencement of an investigative detention and the advising of the detained person's right to counsel under s. 10(b) during which the officer makes a quick assessment of the situation" [as] a practical proposal designed to alleviate the "obvious tension between the requirement to inform detained persons of their right to counsel and the proper and effective use of brief investigative detentions". The focus of the Suberu decision being on the informational duty and "investigative detention", it should not be read as overruling prior cases like Bartel, Manninen and Prosper on the implementational duty through an overly literal reading of the words used. [64] A recent decision of our Court of Appeal also dealt with the phrase "without delay". In R. v. Ashby, 2013 BCCA 334 at paras. 70-73, Frankel J.A., for the Court, was of the view that "immediately" does not mean "instantaneously": [70] Section 10(b) of the Charter provides that a person who has been arrested or detained has the right "to retain and instruct counsel without delay and to be informed of that right". In R. v. Suberu, 2009 SCC 33 at para. 42, [2009] 2 S.C.R. 460, the Supreme Court of Canada interpreted the words "without delay" to mean "immediately". However, it accepted that concerns for officer and public safety could excuse immediate compliance. Years before, in R. v. Strachan, [1988] 2 S.C.R. 980 at 999, that Court accepted that the police can delay allowing a detainee access to a telephone until the situation was "under control". As well, in R. v. Debot, [1989] 2 S.C.R. 1140 at 1146, 1147, it held that, as a general rule, the police are not required to suspend a search incidental to arrest until the arrestee has had an opportunity to speak with a lawyer. [71] Delay by the police with respect to what is known as the implementational component of their duties under s. 10(b) of the Charter was an issue in R. v. Montgomery, 2009 BCCA 41, 241 C.C.C. (3d) 469. Mr. Montgomery was one of four persons arrested in a vehicle for possession of cocaine for the purpose of trafficking. He indicated that he wished to speak with a lawyer. However, as the police had a policy against allowing arrested persons to use cellular telephones at the scene of an alleged crime, he was not allowed to speak with a lawyer until he was taken to the detachment. Due to the number of persons that had been arrested, several hours passed before he spoke with a lawyer. In dismissing a conviction appeal, Mr. Justice Tysoe agreed with the trial judge that the delay in allowing access to counsel did not result in a breach of s. 10(b): [35] The trial judge concluded that it was neither reasonable nor practical to allow the appellant to use a cell phone at the scene of his arrest. I agree with him. The police considered the arrest to be one of high risk. The appellant was believed to be associated with an organization that used violence. It would have been difficult for the police to ensure that the call was not used for an improper purpose and to provide the appellant with privacy at the scene of his arrest while ensuring that he was secure. [36] The police station had only one private phone for conversations with lawyers, and the police had to deal with the three other men arrested with the appellant, as well as an unrelated matter. The trial judge made the finding of fact that the appellant was provided access to counsel as soon as was reasonably possible in all of the circumstances. I am not persuaded that the judge made a palpable error in making this finding. [Emphasis added.] [72] That the exigencies of an arrest situation can excuse immediate compliance with s. 10(b) was more recently discussed in R. v. Nelson, 2010 ABCA 349 at para. 17, 265 C.C.C. (3d) 273, wherein the Court stated: People are not always arrested in locations where it is possible for police to implement access to counsel. The delay that was involved in this case was, in the circumstances, minimal and the police refrained from questioning the appellant until after he had a chance to meet with counsel of his choice face to face. Immediacy does not mean instantaneous; practical considerations still play a role, particularly with respect to the police's obligation to implement an arrested person's contact with counsel. [Emphasis added.] [73] In the case at bar, it was neither reasonable nor practical for Constable Thompson to implement access to counsel at the roadside. He had just arrested Ms. Ashby for a drug-related offence and had reason to believe there were drugs in her vehicle. Until back-up arrived, he was solely responsible for maintaining control of both her and the vehicle. Once back-up (i.e., Sergeant Seib) arrived, Constable Thompson did a cursory search of the Hyundai and, upon finding marihuana, immediately drove Ms. Ashby to the detachment, five minutes away. The delay here was plainly minimal. [65] In R. v. Devries, 2009 ONCA 477 at para. 31, the Ontario Court of Appeal held that whether the steps taken by the police to permit a detainee to contact counsel comply with the implementational duty of s. 10(b) turns on the facts of each specific case. E. Police speaking to the accused before she spoke to counsel [66] Defence counsel submits that asking the accused if they could interview her husband about the charge she was facing and speaking to her about her injuries before she spoke to counsel was a breach of her right to counsel. In my view this does not amount to a breach of the accused's right to counsel. In R. v. Ralph, 2014 ONCA 3, Rosenberg J.A., for the Court, stated at para. 21: the fact that the officer engaged the appellant in conversation after he requested counsel does not automatically result in a Charter violation. As held in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 38, and a long line of earlier cases, the implementation obligation under s. 10(b) "requires the police to refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach a lawyer, or the detainee has unequivocally waived the right to do so" (emphasis added). [67] In my view these discussions between the police and the accused before she consulted counsel were certainly not incriminating in any way, shape or form. F. Failure to Provide an Opportunity to Re-Consult Counsel [68] I have also been asked to consider the issue of failing to provide the accused a subsequent opportunity to consult with a lawyer when it appeared she was confused about her right to counsel. [69] In Sinclair, the accused was arrested for murder. He was given an opportunity to speak with counsel, which he exercised by speaking with a lawyer for three minutes. He indicated that he was satisfied with the call. Three hours later, police contacted the same lawyer to find out if he intended to come to the police station. The lawyer declined, but spoke to the accused again for about three minutes. The police continued to interview the accused who asserted his right to remain silent on a number of occasions and requested to speak to counsel again. The police advised the accused they were of the view that he had already exercised his right to counsel and that he did not have the right to have a lawyer present during questioning. The police then proceeded to reveal various pieces of evidence against the accused which led him to make incriminating statements. [70] The issue in Sinclair was whether s. 10(b) of the Charter mandated the presence of counsel throughout a police interrogation. In holding that it did not, McLachlin C.J.C. and Charron J., writing for the majority, took the opportunity to engage in a broad review of the jurisprudence dealing with the right to counsel. They found that, in most cases, an initial warning coupled with a reasonable opportunity to consult counsel once the detainee invokes the right satisfies s. 10(b) of the Charter (para. 47). Generally, a subsequent request to consult counsel, without more, is not sufficient to re-trigger the s. 10(b) right. However, the Court reinforced that police must give a detainee an additional opportunity to receive advice from counsel when developments in the course of the investigation make it necessary to serve the purpose underlying s. 10(b) (paras. 47-49). The purpose underlying s. 10(b) was described in the following way: [26] The purpose of the right to counsel 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 pp. 1242-43. The emphasis, therefore, is on assuring that the detainee's decision to cooperate with the investigation or decline to do so is free and informed. Section 10(b) does not guarantee that the detainee's decision is wise; nor does it guard against subjective factors that may influence the decision. Its purpose is simply to give detainees the opportunity to access legal advice relevant to that choice. [Emphasis added.] [71] At paras. 50-52, McLachlin C.J.C. and Charron J. provided examples of situations in which courts have found it necessary for police to provide an additional opportunity to consult counsel, such as: a) investigations where new or non-routine procedures involving the detainee are used: R. v. Ross, [1989] 1 S.C.R. 3; b) an investigation that takes a new and more serious turn as events unfold which may make the initial advice no longer adequate, such as when the nature of the charges change: Evans; and R. v. Black, [1989] 2 S.C.R. 138; and c) situations where there is evidence to indicate that a detainee who previously waived his right to counsel may not have understood the right: R. v. Burlingham, [1995] 2 S.C.R. 206. [72] While the majority acknowledged that the above categories were not closed, it held that in order to determine whether a further opportunity to consult counsel arises, the change in circumstances must be objectively observable and "necessary to fulfil s. 10(b)'s purpose of providing the detainee with advice in the new or emergent situation" (para. 54). [73] This issue was also addressed in a recent decision of our Court of Appeal in R. v. Bhander, 2012 BCCA 441. In considering when there will be a change in circumstances that triggers a right to re-consult counsel, Saunders J.A. conducted a thorough overview of the case law on the right to counsel and the right to silence. She concluded: [37] Taking this jurisprudence to the case before us, the issue is that addressed by the judge: was there a change in circumstances of a nature that required a further opportunity to consult with counsel? This reduces to four considerations: was there a change in jeopardy; were there new procedures involving the detainee; is there a reason to believe the first information provided by counsel to the detainee was deficient; and if none of these apply, is this the sort of case that engages the right to re-consult in any event - that is, does the case engage the purposes of s. 10(b) so as to justify a right to re-consult (i.e., a new category)? This issue is to be answered on an objective standard, and thus is a question of law. G. Discussion and Analysis [74] From the evidence elicited on this voir dire, it is clear that the police were dealing with a very delicate issue: the alleged historic sexual assault and/or interference of a young student by his teacher. The accused's husband was present at her home at the time of the arrest. The accused was understandably shocked by the allegations of incidents alleged to have occurred some nine to ten years earlier. The police were also concerned as to how much they should say about the alleged incidents in the presence of the accused's husband. Notwithstanding, the police promptly told the accused of the reason for her arrest, immediately advised her of her right to counsel, and sought her permission before speaking with her husband. [75] It is important to note that after being advised of her right to counsel, the accused did not assert her wish to call a lawyer. Under these circumstances, I find that the police officers complied with the informational component of s. 10(b) of the Charter when they arrived at the home of the accused and arrested her. [76] The accused was then transported to the police detachment where she was again advised of her right to counsel. The total distance between the residence and the detachment was recorded as eight kilometres. The drive took approximately ten minutes. She spoke to duty counsel before being interviewed about the alleged incident. As was stated by Hill J. in Godday: [59] The second and third duties are not triggered until an arrestee, knowledgeable of his or her right to consult counsel "indicate[s] a desire to exercise" the right to counsel: [77] As well, the Ashby case clearly covers this situation. I find that it was "neither reasonable nor practical" for Cpl. McCauley to facilitate access to counsel at the accused's home because she would not be able to exercise that right in private. It is also my view that the approximate 40-minute delay occasioned in bringing the accused to the detachment and booking and searching her before facilitating access to counsel was purely for officer safety and in order to provide the accused with privacy. It was at this time that the "reasonable opportunity" first arose for the accused to access counsel. [78] I accept the evidence of Cst. Stevens that the accused, who greeted the officers in her night clothes, was understandably surprised as to why they were there. After listening to the audio recording, I agree with Cst. Stevens' observation that any apparent confusion in the answers she gave about understanding her right to counsel were due to the shock of hearing the allegations and not a result of her being in a confused state at the time. [79] I have played and replayed the video and audio tapes of the interactions between the police and the accused on the night in question. It has not been established by the accused that she had a subsequent right to re-consult counsel after her initial consultation. I am unable to find any reason for the accused to have been afforded a right to re-consult counsel before or during her interview with the police. H. Decision on Right to Counsel [80] In the result, I find that the accused has not satisfied me on a balance of probabilities that her right to counsel under s. 10(b) of the Charter was infringed. VI. SECTION 24(2) ANALYSIS IN THE ALTERNATIVE [81] In R. v. D.L.W., 2012 BCSC 1700 at paras. 104-110, I discussed the futility of proceeding with an analysis under s. 24(2) in the alternative. However, I noted at para. 109: [109] It seems as though if no Charter breach is found, a trial judge's alternative analysis under s. 24(2) will not be considered by an appellate court. However, underlying factual findings will be respected. [82] Therefore, I will briefly state that even if I had found a Charter breach on these facts, I would still admit the evidence based on the analytical approach under s. 24(2) as set out in Grant. [83] In my view, the officers acted in good faith when dealing with the accused that night. I accept the evidence of Cpl. McCauley that he did not give the accused access to counsel at her home because he thought it would be difficult to afford her privacy. I also accept his testimony that he thought the police detachment was close enough to the accused's residence that it would be easier and more convenient for her to access counsel in private at the police station. [84] The manner in which the officers facilitated the accused's arrest and right to consult counsel minimized the harm as much as possible. Not admitting the evidence would harm the integrity of and public confidence in the justice system. In my view, upon balancing and considering all the circumstances in this case, the admission of the evidence would not bring the administration of justice into disrepute. VII. CONCLUSION [85] I am satisfied that the statements by the accused to the police officers following her arrest on the evening of November 9, 2011, were made voluntarily and not in violation of her rights under the Charter. The statements are therefore admissible and will be admitted into evidence at trial. "Romilly J."