R. v. Mujku, 2011 ONCA 64, released this week on-line, suggests that it is not always incorrect for police to urge detainees not to follow their lawyer’s advice. This is a somewhat surprising position – some might suggest that police ought not to be allowed to act so and, if they do, and justice allows, the conviction could be upheld through the curative provision. In any event, the Court holds :
[27] During the October 10 interview, the police officer encouraged Chak to “tell the truth” by advising him that offering his side of the story would be “safer than just waiting and relying on what these guys said” and explaining that it would be “better”, “much better” and “the best thing” to talk. The police officer also said that he would answer Chak’s questions about the investigation if he told the truth about his involvement.
[28] In response to Chak’s statement that his lawyer told him not to say anything, the police officer stated: “[A]ll lawyers tell every person don’t say anything. Just don’t say anything. But your lawyer is at his house having his dinner, watching his TV with his family and you’re here.” The officer also commented that Chak was “18 years old” and “intelligent” and that the other suspects had also been advised by their lawyers to say nothing.
[29] Chak admitted to hitting Daly in the body twice and burning and disposing of the bat he used to do so in a dumpster. He made these admissions immediately after the police officer showed him pictures of the burned baseball bat and the dumpster in which it had been found and told Chak that “[t]his whole thing is over. The case is solved, the people are arrested. We have our statements.... and it’s got to be painfully clear to you now.”
[30] The trial judge found that the interviewing officer had induced Chak to make a statement and that the inducements were a “major motivating factor in Chak’s decision to make certain damaging admissions” but concluded that most of these were not “improper inducement(s)”. The trial judge found that the police officer did “[cross] the Rubicon” when he told the appellant he would be “safer” if he made a statement, as this suggested there was a danger in remaining silent. The trial judge concluded, however, that this improper inducement was not an operative factor in Chak’s decision to make his admissions and ruled the statement voluntary.
[31] The trial judge rejected the submission that the police officer’s comment that all lawyers tell their clients not to say anything undermined Chak’s s.10(b) rights. However, the trial judge did find that Chak’s s.10(b) Charter rights were violated later in the interview when the police ignored his numerous requests to speak to his lawyer and excluded the admissions made after that point.
[32] Chak submits that the trial judge erred in failing to exclude all of his October 10, 2001 statement on the grounds that:
(a) the Crown failed to prove that it was voluntary; and
(b) it was obtained in breach of the Chak’s s.10(b) Charter right to counsel.
(a) Voluntariness
[33] With respect to voluntariness, Chak identifies several problematic aspects of the interview:
· the police officer’s suggestion that it would be the “best thing”, “better for you” and “much better for you” to make a statement;
· the police officer’s suggestion that Chak would benefit from providing his own account as he would not have to rely on that of the others;
· the police officer’s offer of information about the investigation in exchange for a statement; and
· the police officer’s suggestion that Chak would be “safer” if he provided a statement.
[34] Chak submits that the trial judge erred by failing to consider all of these facts together and by isolating the pictures of the charred bat as the factor that pushed Chak over the edge and led him to make incriminating admissions.
[35] We do not accept this ground of appeal. The trial judge’s careful and detailed ruling demonstrates that he was fully aware that there were some troublesome elements of this interrogation, and indeed, he found that at one point, the police officer had crossed the line. However, the trial judge found as a fact that it was the picture of the charred bat, rather than any improper inducement, that caused Chak to make the incriminating statements. That finding was open to the trial judge on this record, which includes a video recording of the interview that the trail judge reviewed several times before reaching a decision. Those findings are entitled to deference on appeal and Chak has failed to persuade us that there is any basis for appellate intervention.
(b) Charter, s. 10(b)
[36] The police tread on dangerous ground when they comment on the legal advice tendered to detainees. In our view, however, the trial judge did not err in finding that the impugned comment made by the police officer did not violate, or undermine to the point of breach, Chak’s s.10(b) right to counsel. It was open to the trial judge to find that the police officer simply made the point that it was up to Chak, not his lawyer, to decide whether or not to make a statement. The circumstances here are distinguishable from R. v. Burlingham, [1995] 2 S.C.R. 206, at para. 14, where the court held that “s.10(b) specifically prohibits the police, as they did in this case, from belittling an accused
__________ Information from ESET Smart Security, version of virus signature database 5813 (20110124) __________
The message was checked by ESET Smart Security.
http://www.eset.com
No comments:
Post a Comment