Right to Counsel

Il guasti gridano fuori per vendetta

On April 13, 2001, Robert Badgerow was convicted of the first-degree murder of Diane Werendowicz.

Ms. Werendowicz’s body was found in a ravine in Stoney Creek on June 20, 1981. She was lying face down in a creek with a tire over her head and her purse strap wrapped around her neck. Pathologists confirmed the cause of her death as strangulation and drowning. Forensic testing revealed the presence of semen on her jeans and in her vagina. This was a brutal sexual assault murder.

Ms. Werendowicz’s murder remained unsolved for many years. In 1997, a police task force was formed to investigate a number of unsolved crimes that had taken place in the same ravine. As a result of scientific advances, DNA profiling was then available and the Centre for Forensic Sciences was able to extract a DNA profile from the semen found at the scene of the murder. The police sought DNA samples from several suspects, including Mr. Badgerow; he refused.

Forensic testing on something Mr. Badgerow used and threw away confirmed that his DNA matched the DNA profile of the semen found on Ms. Werendowicz’s body.

Mr. Badgerow was arrested for the murder of Ms. Werendowicz.

Following his arrest, he gave a videotaped statement to the police in which he denied knowing or recognizing the deceased or having any involvement in her murder. On being informed that the police had a DNA match, Mr. Badgerow said he did not have an explanation and it would be up to his lawyer to answer any more questions.

At trial, the Crown alleged that the appellant sexually assaulted Ms. Werendowicz in the ravine, strangled her with her purse, and drowned her in the creek. Among other things, the Crown relied on the DNA evidence, an audiotape of a 911 call made two days after the murder in which the caller provided details of the murder that were not widely known, the evidence of several witnesses who identified Mr. Badgerow’s voice as that of the 911 caller, and his statement to the police in which he denied any relationship with the deceased, an apparent fabrication.

Today’s decision of the Court of Appeal in R. v. Badgerow, 2008 ONCA 605 sets aside the conviction on the basis that Mr. Badgerow was not given a sufficient opportunity to talk to his lawyer before being questioned by the police.

The Court summarizes the facts regarding speaking to counsel as follows:

[10] Following his arrest, the appellant asked to speak to a specific lawyer, Neil Jones. When he was unable to reach Mr. Jones, he attempted to contact two other lawyers and eventually spoke to one of Mr. Jones’s partners. After a brief telephone conversation with the partner, the appellant told the arresting officer that he had instructed the partner to keep trying to get in touch with Mr. Jones. On being asked by the arresting officer if he was satisfied he had spoken to counsel, the appellant said yes, but asked if he could make another call. The arresting officer refused and proceeded to interview the appellant.

The Court ruled, as set out below, that the right to counsel was breached and there must be a new trial, presumably without the statements made to the police being adduced at trial.

[44] It is well established that the police have both informational and implementation duties in relation to s. 10(b) of the Charter. Where an accused asks to speak to a particular lawyer on arrest or detention, the police are obliged to give the accused a reasonable opportunity to exercise his or her right to counsel of choice and to hold off in questioning the accused so long as the accused is reasonably diligent in exercising the right: see, for example, R v. Bartle (1994), 92 C.C.C. (3d) 289 (S.C.C.); R. v. Manninen (1987), 34 C.C.C. (3d) 385 (S.C.C.).

[45] As the trial judge noted, there is also ample authority that what the police are required to say and do in a particular case to fulfill their duties under s. 10(b) will depend on what the accused says and does and what the police could reasonably surmise in the circumstances: see, for example, R. v. Ross (1989), 46 C.C.C. (3d) 129 (S.C.C.); R. v. Tremblay (1987), 37 C.C.C. (3d) 565 (S.C.C.); R. v. Top (1989), 48 C.C.C. (3d) 493 (Alta. C.A.).

[46] Although the police cannot be expected to be mind readers, they are not entitled to ignore statements by an accused that raise a reasonable prospect that the accused has not exercised his or her s. 10(b) rights. Rather, where an accused makes such a statement, the police must be diligent in ensuring that an accused has a reasonable opportunity to exercise his or her rights, and may not rely on answers to ambiguous questions as a basis for assuming that an accused has exercised his or her rights.

…

[56] Because the appellant was not afforded a reasonable opportunity to consult with counsel of his choice prior to making a statement to the police, he was deprived of the opportunity to obtain proper advice that would have allowed him to make an informed choice about whether to speak to the police. This is not a case in which it is obvious that the appellant was intent on making a statement; nor is it a case in which the reliability of the conscriptive evidence somehow obviates the impact on trial fairness of admitting the statement.

Some might wonder if the constitutional right to counsel was intended to apply so strictly and if so, whether in light of the nature of the evidence and the police officer’s good faith (as found by the trial judge), the administration of justice could be brought into disrepute by the evidence being admitted.