Reasons for Judgment of the Honourable Mr. Justice Donald:

[1]                George Roswell Osmond appeals from a conviction of first degree murder recorded after a trial before Mr. Justice Bernard without a jury.  The judge give his reasons for conviction orally:  (13 December 2005), Campbell River No. 30441-2 (B.C.S.C.). 

[2]                The evidence against the appellant includes a confession and DNA.  The judge relied on the confession as the primary basis for the conviction. 

[3]                The appellant seeks an order substituting a verdict of acquittal or a lesser offence, or, in the alternative, a new trial on various grounds, including a denial of his Charter rights under s. 10(b) to retain and instruct counsel without delay.

[4]                In my opinion, the DNA evidence linking him to the scene of the crime and to the victim puts a substituted verdict out of the question. 

[5]                Mr. Mulligan, counsel for the appellant, argued for a right to have a lawyer present while under police interrogation.  In the course of arguing for that right, Mr. Mulligan pointed out the deficiencies in the Brydges duty counsel 24 hour toll-free line [R. v. Brydges, [1990] 1 S.C.R. 190], and submitted that it fell short of providing any meaningful access to a lawyer in this case.  Since the police made no effort beyond arranging the Brydges call in facilitating the appellant's access to legal counsel, there was, in all the circumstances, according to Mr. Mulligan, a denial of the appellant's s. 10(b) rights. 

[6]                I would not embark upon a determination of the asserted right to the presence of counsel under custodial interrogation for two reasons.  First, the declaration of such a right would reverse clear authority to the contrary:  see, for example, R. v. Ekman (No. 1), 2000 BCCA 414, 146 C.C.C. (3d) 346, and would have to be considered by a five-member division of the Court.  Second, the appeal can be allowed on a ground that does not depend on the right to have counsel present.

[7]                I refer to the allegation that in all the circumstances – the age and level of sophistication of the appellant, the inadequacy of the Brydges process, the unhelpfulness of the police in providing access to local counsel, the refusal to permit the appellant to speak to his father, all considered in light of the seriousness of the offence under investigation – the appellant was denied the effective right to counsel to which he was entitled under s. 10(b).  I think that allegation has been made out and I would accordingly order a new trial. 

FACTS

[8]                The judge's overview of the facts in his reasons for conviction is most helpful: 

 [1]  On April 27th, 2004, the body of 13-year-old [K.J.] was found in a shallow grave in the wooded area directly behind her home in the small community ....  She was naked below the waist, and she had sustained significant bodily injury.  Scrap lumber and greenery had been thrown over her in an effort to conceal her.

[2]  [K.] had been last seen heading to her home around midnight of April 25th, and her absence was noted in the morning of the 26th.  It was apparent that she had been killed sometime in the night.

[3]  On the night in question, [K.] was home alone and sleeping in her [sister's] bedroom.  The front door to the mobile home was not locked.

[4]  The RCMP began investigating the homicide.  The forensic pathologist who performed the autopsy determined that [K.'s] death was caused by blows to the head, strangulation, and stab wounds.  Also, the pathologist noted an acute laceration and contusions to the vagina.

[5]  During the autopsy, fingernail clippings were taken from [K's] body and forwarded to the RCMP forensic laboratory for analysis.

[6]  In the days immediately following the homicide, many people observed a long white scratch down the front of the neck of George Osmond, a 21-year-old man who lived nearby.

[7]  By May 10th, the results of the DNA analysis of [K.'s] fingernail clippings were known.  At trial, a DNA expert testified that a mixed DNA sample was obtained and that the DNA of the major donor matched the known sample of Mr. Osmond with an estimated probability of selecting an unrelated individual from the Canadian Caucasian population with the same profile calculated to be one in 16 trillion.

[8]  On May 14th, 2004, the police arrested George Osmond for the first degree murder of [K.J.].  Shortly after his arrest, Mr. Osmond spoke to the police and in the course of two lengthy interviews he confessed to killing [K.] and disposing of her body in the woods behind her residence.  

[9]                On the evening of Friday, 14 May 2004, the appellant confessed to having beaten the victim to death.  The questioning continued the next morning, when the police interrogator sought and obtained an admission that the appellant also inflicted knife wounds on the victim. 

[10]            The admissibility of the confessions was challenged, primarily on the basis of their voluntariness and s. 10(b) compliance, and considered in two voir dires.  The appellant testified on the Charter voir dire but not on the voluntariness voir dire.  The judge found against the appellant's arguments on a comprehensive ruling delivered orally:  (14 November 2005), Campbell River No. 30441-2 (B.C.S.C.), and admitted the statements.

[11]            To avoid repetition, I will defer a detailed discussion of the facts relevant to the s. 10(b) question until I have analyzed the legal framework bearing on the topic.

ISSUES: 

1.         Was there a denial of rights under s. 10(b) of the Charter?

2.         Should the confessions have been excluded?

3.         What is the appropriate disposition in this Court?

DISCUSSION

Was the Appellant denied the right to retain and instruct counsel without delay?

[12]            A brief sketch of the circumstances surrounding the appellant's contact with counsel will give context to the consideration of the relevant legal principles.

[13]            The record indicates that at the material time the Brydges line was contracted by the government to an Ontario company.  It was not part of the legal aid scheme operated by the Legal Services Society of British Columbia.  In this case, the police placed a toll-free call to an answering service which then paged the lawyer on call.  The lawyer returned the call.  The officer relayed the call to the room where the appellant was seated alone.

[14]            As will be discussed more fully later, the call was quickly handled by the lawyer in a routine fashion according to a protocol that applied whether the offence was minor or, as in this case, most serious.  The lawyer advised silence but not how, in the light of the allegations (no effort to obtain particulars was made) and the personality of the "client", the right to silence is to be effectively exercised.

[15]            The Brydges lawyer did not recommend local lawyers who could promptly attend the client before questioning.  The Brydges lawyer who dealt with the appellant did not know any criminal lawyers in the Courtenay area.

[16]            The appellant had no access to a phone book or a list of legal aid lawyers.  The police made no effort to assist him in contacting his former lawyer.  He was not permitted to visit with his father or girlfriend who could have arranged a lawyer for him.  He was isolated.  He faced interrogation after a two-minute phone call from a remote stranger with no local knowledge.

[17]            Before evaluating the adequacy of the s. 10(b) opportunity given the appellant, I will review the legal principles bearing on such an analysis.

[18]            The common law privilege against self-incrimination is incorporated within s. 7 of the Charter as a fundamental justice principle and is closely linked to the right to silence and the right to retain and instruct counsel under s. 10(b).  The relationship was explained by Madam Justice McLachlin, as she then was, in R. v. Hebert, [1990] 2 S.C.R. 151 at 176-177:

            The first Charter right of importance in defining the scope of the right to silence under s. 7 of the Charter at the pre-trial stage is the right to counsel under s. 10(b) of the Charter.

            The scheme under the Charter to protect the accused's pre-trial right to silence may be described as follows.  Section 7 confers on the detained person the right to choose whether to speak to the authorities or to remain silent.  Section 10(b) requires that he be advised of his right to consult counsel and permitted to do so without delay.

            The most important function of legal advice upon detention is to ensure that the accused understands his rights, chief among which is his right to silence.  The detained suspect, potentially at a disadvantage in relation to the informed and sophisticated powers at the disposal of the state, is entitled to rectify the disadvantage by speaking to legal counsel at the outset, so that he is aware of his right not to speak to the police and obtains appropriate advice with respect to the choice he faces.  Read together, ss. 7 and 10(b) confirm the right to silence in s. 7 and shed light on its nature.

            The guarantee of the right to consult counsel confirms that the essence of the right is the accused's freedom to choose whether to make a statement or not.  The state is not obliged to protect the suspect against making a statement; indeed it is open to the state to use legitimate means of persuasion to encourage the suspect to do so.  The state is, however, obliged to allow the suspect to make an informed choice about whether or not he will speak to the authorities.  To assist in that choice, the suspect is given the right to counsel.

            This suggests that the drafters of the Charter viewed the ambit of the right to silence embodied in s. 7 as extending beyond the narrow formulation of the confessions rule, comprehending not only the negative right to be free of coercion induced by threats, promises or violence, but a positive right to make a free choice as to whether to remain silent or speak to the authorities.

[Emphasis added.]

[19]            Fair treatment of an accused requires the police to facilitate contact with counsel as an incident to s. 10(b) and imposes the duties described by Mr. Justice Lamer (as he then was) in R. v. Brydges, at 202-203: 

This Court has on numerous occasions stated that the proper approach to interpreting the meaning of the rights and freedoms guaranteed by the Charter is to adopt a purposive analysis:  Hunter v. Southam Inc., [1984] 2 S.C.R. 145, and R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295.  In respect of s. 10 of the Charter, this Court has made clear that the right to counsel is, to cite the words of Wilson J. in Clarkson, supra, at p. 394, aimed "at fostering the principles of adjudicative fairness", one of which is "the concern for fair treatment of an accused person".  It is of note that the right to counsel is triggered "on arrest or detention".  Fair treatment of an accused person who has been arrested or detained necessarily implies that he be given a reasonable opportunity to exercise the right to counsel because the detainee is in the control of the police, and as such is not at liberty to exercise the privileges that he otherwise would be free to pursue.  There is a duty then, on the police to facilitate contact with counsel because, as I stated in R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-43:

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. ...  For the right to counsel to be effective, the detainee must have access to this advice before he is questioned or otherwise required to provide evidence.

As a result, s. 10(b) of the Charter imposes at least two duties on the police in addition to the duty to inform the detainee of his rights.  First the police must give the accused or detained person a reasonable opportunity to exercise the right to retain and instruct counsel, and second, the police must refrain from questioning or attempting to elicit evidence from the detainee until the detainee has had that reasonable opportunity.  The second duty includes a bar on the police from compelling the detainee to make a decision or participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until the person has had a reasonable opportunity to exercise the right to counsel:  R. v. Ross, [1989] 1 S.C.R. 3, at p. 12.

[Emphasis added.]

[20]            The court in Brydges, at 206, emphasized the importance of obtaining immediate legal advice, i.e. before police interrogation:

A detainee is advised of the right to retain and instruct counsel without delay because it is upon arrest or detention that an accused is in immediate need of legal advice.  As I stated in Manninen, supra, at p. 1243, one of the main functions of counsel at this early stage of detention is to confirm the existence of the right to remain silent and to advise the detainee about how to exercise that right.  It is not always the case that immediately upon detention an accused will be concerned about retaining the lawyer that will eventually represent him at a trial, if there is one.  Rather, one of the important reasons for retaining legal advice without delay upon being detained is linked to the protection of the right against self-incrimination.  This is precisely the reason that there is a duty on the police to cease questioning the detainee until he has had a reasonable opportunity to retain and instruct counsel. 

[Underlining in original; emphasis in italics added.]

[21]            This passage speaks of two elements in the consultation:

1.         confirmation of the right to silence; and

2.         advice on how to exercise that right.

As I will develop later, the Brydges scheme in this Province, at least as practised in this case, addressed the former element but not the latter. 

[22]            Chief Justice Lamer repeats the two elements in R. v. Prosper, [1994] 3 S.C.R. 236 at 259:

            That being said, I would like to stress that in jurisdictions where "Brydges duty counsel" is in fact present, I believe that the interests of all participants in the criminal justice system are served in the fullest, simplest and most direct manner and, therefore, that it is a service which governments and the bar are well advised to implement and maintain.  As the extrinsic evidence shows, requiring police to advise detainees of the existence of a universally available, 24-hour duty counsel service increases the likelihood that detainees will seek legal advice and thereby be informed of their rights and obligations under the law and how these should be exercised:  e.g., see [R. v. Bartle, [1994] 3 S.C.R. 173], at p. 200. In other words, the existence of such a service reduces the likelihood of detainees being left with the mistaken impression that legal assistance is not available to them due to the expense of hiring a lawyer, or to the fact that it is outside regular business hours.  In addition, provision of duty counsel would seem to offer concrete benefits to law enforcement authorities and to the courts.  That is, not only does ensuring that legal advice is available at the outset save time and allow police to proceed more quickly with their investigatory work and with laying charges, but also it is likely to facilitate the admission into evidence of various statements made to police by detained persons.  "Brydges duty counsel" is also likely, at least in the long run, to be cost efficient.  It would decrease the overtime costs associated with having police "hold off" to provide the necessary "reasonable opportunity" to contact counsel and, by reducing the number of motions which centre around ss. 10(b) and 24(2) of the Charter, would help to save on court resources. 

[Underlining in original; emphasis in italics added.]

[23]            The concurring reasons of McLachlin J., as she then was, in Prosper at 298 are apposite:

            By its express wording, s. 10(b) has two components: (1) an informational component, and (2) an implementational component.  The informational component entitles the detainee to information as to the nature of his or her right to retain and instruct counsel.  Having been informed of his or her right to counsel and having been provided with the information necessary to the effective exercise of that right, the accused has a further right to be given an opportunity in fact to retain and instruct counsel, whether by use of the telephone or other means.  If either the informational or implementational requirements are not satisfied, a breach of s. 10(b) may occur.  Any evidence taken before the breach is remedied may be rendered inadmissible under s. 24(2) of the Charter.  The answers to the questions posed on this appeal flow from these simple propositions. 

[Emphasis added.]

[24]            Prosper endorsed the 24 hour toll-free telephone advice system, generally known as "the Brydges line", as a measure likely to satisfy s. 10(b) requirements.  But, in my opinion, the endorsement assumes that the advice contains both elements.

[25]            Returning to Brydges, the police are obliged not only to inform the accused of the right to retain and instruct counsel without delay but also to inform him of duty counsel and legal aid.  Mr. Justice Lamer said, at 211-212: 

            Although my reasons thus far are sufficient to dispose of this appeal in favour of the appellant, I feel compelled to make certain comments on the broader question raised by Watt J. in Parks, supra, namely whether it should be part of the information component of the constitutional guarantee under s. 10(b) that accused persons should be told as a matter of routine in all cases of arrest or detention of the existence and availability of duty counsel and Legal Aid plans.  In my view, it is consistent with the purpose underlying s. 10(b) of the Charter to impose that duty on the police in all cases of detention. ...  In my view then, these policy concerns in respect of making police officers' duties under the Charter clear and of ensuring that all detainees are made aware of the existence of duty counsel and Legal Aid, complement each other, and support the view that information about the existence and availability of duty counsel and Legal Aid plans should be part of the standard s. 10(b) caution upon arrest or detention. 

[Emphasis in original.]

[26]            In the present case, the investigating officer told the appellant about the Brydges line, which involved a kind of duty counsel, but neither he nor the lawyer on the Brydges line explained anything about legal aid.

The importance of the early assistance of counsel

[27]            The authorities to which I have referred identify the right to silence and the privilege against self-incrimination as fundamental criminal law principles.  Early access to counsel is guaranteed by the Charter – early in the sense that an accused can get advice before police questioning. 

[28]            Effective legal assistance prior to police attempts to secure a confession is compelled by the simple logic that the accused's position can seldom be retrieved after a confession.  There is little point in devoting many resources in the defence of an accused (the total expenses of a legal aid defence, prosecution services, court services, and the like can be enormous) to ensure that an accused has a fair trial with all the protection the system provides, if the accused is left unprotected from the interrogation techniques of the police and is persuaded, often after many hours of questioning, to make damaging admissions. 

[29]            This is the logic that lies behind these observations in Hebert at 174:

            From a practical point of view, the relationship between the privilege against self-incrimination and the right to silence at the investigatorial phase is equally clear.  The protection conferred by a legal system which grants the accused immunity from incriminating himself at trial but offers no protection with respect to pre-trial statements would be illusory.  As Ratushny writes (Self-Incrimination in the Canadian Criminal Process (1979), at p. 253):

            Furthermore, our system meticulously provides for a public trial only after a specific accusation and where the accused is protected by detailed procedures and strict evidentiary rules.  Ordinarily he is represented by a lawyer to ensure that he in fact receives all of the protections to which he is entitled.  The accused is under no legal or practical obligation to respond to the accusation until there is an evidentiary case to meet.  There is a hypocrisy to a system which provides such protections but allows them all to be ignored at the pre-trial stage where interrogation frequently occurs in secret, after counsel has been denied, with no rules at all and often where the suspect or accused is deliberately misled about the evidence against him.

[30]            At the beginning of these reasons, I expressed a disinclination to entertain the appellant's arguments that s. 10(b) mandates the presence of counsel during custodial interrogation, at least for the most serious offences.  For present purposes, I find that those arguments reinforce the requirement of effective legal assistance at the investigative stage.

[31]            The first point in this connection is that most common law countries provide for the presence of counsel during custodial interrogation under rules which postulate the right to effective legal assistance at the early stage:  in England and Wales, the Judges' Rules once provided the right now covered by Code C of the Police and Criminal Evidence Act 1984 (U.K.), c. 60; for Jamaica, which retains the Judges' Rules, the Privy Council gave effect to the right in Shabadine Peart v. The Queen, [2006] UKPC 5; in Australia, Part 1C of the Crimes Act 1914 (Cth.), s. 23G; and in the United States of America, Miranda v. Arizona, 384 U.S. 436 (1966).  New Zealand has a provision not unlike Canada's s. 10(b) in the New Zealand Bill of Rights Act 1990, (N.Z.), 1990/109, s. 23.

[32]            Although we do not have the full context of these provisions, which would be necessary to appreciate more fully the influence that should be accorded them in Canadian law, for present purposes they serve as examples of the importance of the requirement of effective legal assistance at the investigative stage.

[33]            The second point underscoring the importance of early effective legal assistance is the provision in the Rome Statute of the International Criminal Court, Article 55, s. 2, <http://www.icc-cpi.int/library/about/officialjournal/ Rome_Statute_120704-EN.pdf>, which reads: 

2.         Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned:

(a)  To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court;

(b)  To remain silent, without such silence being a consideration in the determination of guilt or innocence;

(c)  To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and

(d)  To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.

[Emphasis added.]

[34]            Again, these provisions operate in a different context from Canadian domestic prosecutions, but they nevertheless underscore the importance of early assistance.

[35]            Canada was a leading proponent of the Rome Statute and has adhered to the international instruments creating the International Criminal Court (ICC).  Ms. Dewitt-Van Oosten cogently adverted to the fact that in enacting the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, consequent upon the creation of the ICC, Parliament did not provide for a right to the presence of counsel for a prosecution in Canada.  That omission may affect the entitlement to the presence of counsel – I do not need to express an opinion about that – but I do not think it undermines the postulation that early effective assistance is a necessary thing.  In deciding what is the content of s. 10(b), it is legitimate to refer to and to take guidance from our international obligations and to construe domestic law in conformity with those obligations.  I derive that proposition from the majority reasons of Mr. Justice LeBel in R. v. Hape, 2007 SCC 26:

53  One final general principle bears on the resolution of the legal issues in this appeal.  It is a well-established principle of statutory interpretation that legislation will be presumed to conform to international law.  The presumption of conformity is based on the rule of judicial policy that, as a matter of law, courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations, unless the wording of the statute clearly compels that result. R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 422, explains that the presumption has two aspects.  First, the legislature is presumed to act in compliance with Canada's obligations as a signatory of international treaties and as a member of the international community. In deciding between possible interpretations, courts will avoid a construction that would place Canada in breach of those obligations.  The second aspect is that the legislature is presumed to comply with the values and principles of customary and conventional international law.  Those values and principles form part of the context in which statutes are enacted, and courts will therefore prefer a construction that reflects them.  The presumption is rebuttable, however.  Parliamentary sovereignty requires courts to give effect to a statute that demonstrates an unequivocal legislative intent to default on an international obligation.  See also P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at pp. 367-68.

[Emphasis added.]

54  The presumption of conformity has been accepted and applied by this Court on numerous occasions.  In Daniels v. White, [1968] S.C.R. 517, at p. 541, Pigeon J. stated:

[T]his is a case for the application of the rule of construction that Parliament is not presumed to legislate in breach of a treaty or in any manner inconsistent with the comity of nations and the established rules of international law. ... [I]f a statute is unambiguous, its provisions must be followed even if they are contrary to international law.  [Emphasis of LeBel J.]

See also [Zingre v. The Queen, [1981] 2 S.C.R. 392], at pp. 409-10; Ordon Estate v. Grail, [1998] 3 S.C.R. 437, at para. 137; Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269, 2002 SCC 62, at para. 50. The presumption applies equally to customary international law and treaty obligations.

55  This Court has also looked to international law to assist it in interpreting the Charter.  Whenever possible, it has sought to ensure consistency between its interpretation of the Charter, on the one hand, and Canada's international obligations and the relevant principles of international law, on the other.  For example, in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1056, Dickson C.J., writing for the majority, quoted the following passage from his dissenting reasons in Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at p. 349:

The content of Canada's international human rights obligations is, in my view, an important indicia of the meaning of the "full benefit of the Charter's protection". I believe that the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.

Dickson C.J. then stated that Canada's international obligations should also inform the interpretation of pressing and substantial objectives under s. 1 of the Charter.  (See also Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 503; Suresh; United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 2004 SCC 4).

[Emphasis added.]

56  In interpreting the scope of application of the Charter, the courts should seek to ensure compliance with Canada's binding obligations under international law where the express words are capable of supporting such a construction.  In light of the foregoing principles – the direct application of international custom, territorial sovereignty and non-intervention as customary rules, and comity and the presumption of conformity as tools of construction – I will now turn to the point that is directly in issue in this appeal: the interpretation of s. 32 of the Charter and the application of the Charter to searches and seizures outside Canada. 

[Emphasis added.]

[36]            Having explored the practical and theoretical reasons for importing into s. 10(b) the necessity for effective early assistance, I turn now to look at the help that the appellant actually received in the context of the surrounding circumstances.

The exercise of s. 10(b) in this case

[37]            It is apparent that the investigating officer thought that he would fully discharge his informational and implementational duties by putting the appellant on the Brydges line and that the appellant's rights were exhausted by the telephone call.  The judge seemed to be of the same view:  as long as the Brydges lawyer told the appellant he had the right to remain silent and not to speak to the police or anyone in cells, that was enough.  A surface reading of Prosper might have created that impression.  But, as I have pointed out, in Manninen, Brydges and Prosper, Chief Justice Lamer made it clear that the advice must include direction on how to exercise the right to silence. 

[38]            In this case, the Brydges call was entirely inadequate.  Consider, first, the appellant, who was 21 years old at the time of interrogation, had not completed high school, worked as a labourer, came from a remote, tiny, resource-based community on the west coast of Vancouver Island, and was obviously unsophisticated.  The judge said he was intelligent.  He evidently had an operating mind, but the transcript reveals an immature and over-confident individual who foolishly thought he could talk his way out of a very bad predicament.  He did not have the savoir faire to know that he was hopelessly outmatched by a trained R.C.M.P. officer from the Serious Crimes Unit.

[39]            Consider, also, the isolation of the appellant.  Having been arrested in the late afternoon on a Friday, his access to a lawyer was problematic.  He wanted to speak to his father and girlfriend.  That was denied until after the police interrogation.  The Brydges call was to a lawyer outside Courtenay (it was Abbotsford, but it could have been anywhere, including an offshore call centre) and the lawyer told him that he would be in custody all weekend and would probably see a duty counsel on a first court appearance on the Monday.  In the meantime, the lawyer told him to be quiet.  In other words, he was on his own through the weekend. 

[40]            The Friday arrest meant the appellant remained in police cells, permitting ready access to him by the police, under their control, an advantage that the investigating officer acknowledged in the voir dire, rather than at a remand centre where he could receive visits from his father. 

[41]            Upon arrival at the detachment office, he was asked if he knew a lawyer.  He mentioned a lawyer, one Seamore (which was incorrect), who represented him on a Youth Court problem several years previously, but at that point he was uncertain whether he needed a lawyer.  One of the officers involved in the arrest knew who the appellant was referring to, the lawyer's proper name and where he practised, but did nothing to help locate him for the appellant. 

[42]            The appellant was warned and given an appropriate s. 10(b) advisory.  But, as he later explained in the Charter voir dire, he thought he would find out what the police had on him so that he could discuss that information with a lawyer after the weekend.  He had to be urged to make the Brydges call. 

[43]            He was arrested by a constable (who lead the investigation and did the questioning) and by a corporal (who knew who the appellant's former lawyer was).  On the drive to the Courtenay detachment office, a tape recorder was running and captured this exchange between the appellant and the corporal:

A:         ... so can you tell me what's going on?

Q2:      Well essentially George you're under arrest for the murder

A:         ...well yeah I understand

Q2:      ...of [K.J.] and ah

A:         well I, yeah I understand like I took law twelve.

Q2:      Yeah and you, right at this point in time you have the right to ah retain and instruct counsel

A:         ...remain silent and I

Q2:      no

A:         I know it all

Q2:      okay

A:         but

Q2:      you have the right to call a lawyer

A:         just, just tell me come on ah owe, can you just tell me?

Q2:      Well we're gonna talk to you back at the office. 

The appellant did not pass the Law 12 course. 

[44]            On arrival, the appellant tried to get particulars before deciding whether to call a lawyer.  Quoting again from the transcript of the tape recording of the exchange with both the constable and the corporal:

Q:        Just in a second okay I just got to ah so like I explained to you about calling a lawyer okay is there a particular lawyer you'd want to call or legal aid or?

A:         Well I want to talk to you kind of about this like

Q:        hmmhmm

A:         I don't need a lawyer like

Q:        well I realize that but I mean

A:         ...I'd like a lawyer if I need one

Q:        you know

A:         I

Q:        Well you have to, you have to think about what we've just done here we've arrested

A:         ...well yeah I know

Q:        you know we've arrested you for

A:         yeah

Q:        you know a murder

A:         yeah

Q:        okay the murder of [K.J.]

A:         yeah well I, I haven't done anything so

Q:        okay so

A:         so I'm kind of a little

Q:        it's, it's that's why you're here

A:         yeah

Q:        so, you know that's

A:         I'm a little you know a little bit confused

Q:        that's ah what

A:         I don't know if I really need one but

Q:        right well I think anybody who's ah gets arrested for murder

A:         yeah

Q:        probably ah should talk

A:         would need a lawyer, like um yeah

Q:        hmm

A:         but I don't know so I'd like to talk to you.

Q:        Okay well just hang tough there for a sec I'll get a key to take those off.  Time is now 1836 and George is in the ah phone room ah just...so yeah I'm just getting those handcuffs off you and they're not the most comfortable things I know.

* * *

Q:        Okay so what ah, ah what's gonna happen is ah you're gonna have the opportunity now to call a lawyer if you want and ah like we discussed I mean that's ah

A:         ...well like I kinda want to know

Q:        ...that's your right

A:         ...what's like going on I mean obviously I've been accused or arrested for the murder but

Q:        ...that's right and, and these are your rights and these things need to be taken care of before we sit down and talk.

A:         So should I get a lawyer to come before I sit down

Q:        ...well it's not

A:         ...and talk to you?

Q:        That's not the, that's not the advice I can give you that's the advice that a lawyer gives you like I’m not, you know.

A:         Well

Q:        ...like I’m not in a position to give you that advice that's why you have the right to call a lawyer.

A:         Well yeah I understand that.

Q:        They give you the advice.

A:         But like

Q:        I mean

A:         I'd like to know a little bit more of the facts before I just jump in oh yeah I want to buy a lawyer.

Q:        Right, well it's not I mean that's and that, and that again is advice that a lawyer can give you that's, that's, that's not the, that's not advice I can I mean I'm not a lawyer and

A:         ...well I don't know any lawyers like I really don't I know oh and ah the guy from Port Hardy that or Port McNeill

Q:        right

A:         I forget his name though Seamore like Seamore

Q:        right

A:         his name was

Q:        well that's what legal aid is for you know like I mean legal aid is there to provide...

A:         are they open?

Q:        ...yeah they're twenty four hours a day just a twenty four hour telephone service for

A:         oh okay

Q:        where and they provide advice free of charge.

Q2:      But the facts right now George

A:         Yeah.

Q2:      Is you're under arrest for first degree murder and you're going to be charged with first degree murder and you have the right to call a lawyer okay.

Q:        ...and get advice based on that

Q2:      Get advice.

A:         And that's it, that's all you guys will tell me right now.

Q2:      That's the facts right now, okay.

A:         Okay.

Q2:      That's your exclusive right to call a lawyer.

A:         Well...I guess I can't ah defend myself eh?

Q:        Well that's a decision you, you have to make that ah and that's probably another question for a lawyer not for me.

A:         Well

Q:        Right?

A:         Like what do you guys got on me like my story doesn't make sense or

Q:        that's all stuff that we'll, we'll discus but we need to deal with these things first okay?

A:         So what's the one eight hundred number here?

Q:        Well what we'll do is ah they call it, we'll go in the other room here, I'll close the door give you privacy okay, we'll go in the other room we'll call legal aid, we'll tell them who you are and what you've been arrested for and then this phone, then they phone back, cause it's just an answering service.

A:         hmmhmm

Q:        and then when this phone rings you pick it up but don't pick it up until it rings.

A:         Okay.

Q:        And then it'll be a lawyer from legal aid calling back.

A:         Sure.

Q:        Okay?

A:         It works.

[45]            This is a young man who had to be told that he could not defend himself on a charge of first degree murder.  He may have had an operating mind but, with respect, he was not very smart. 

[46]            The telephone call took two minutes.  The lawyer was on call from 5:00 p.m. to 1:00 a.m.  He was the only lawyer on call for the whole of British Columbia.  He spoke to the appellant from his home in Abbotsford.  In giving his testimony on the voir dire, the lawyer had no independent recollection of the call.  It was only one of an average of 44 calls per shift. 

[47]            His memory was assisted by a form on which he made notes while his pager sounded for other incoming calls.  To him, his mandate was simple:  ascertain whether the person was likely to remain in custody over the weekend, advise him of his right to silence, and tell him, several times, not to say anything to the police or to anyone in cells.  He said he receives calls from many locations throughout the Province, including department stores and police stations, and to him the basic advice is the same whether the charge is shoplifting or murder.  He testified in cross-examination:

Q         I see.  Good for you.  Now, with respect to this interview, though.  I take it that you want to impress upon these people that they shouldn't speak to the police?

A          That's right.

Q         And you want to impress upon them firmly that they shouldn't speak to anybody in cells?

A          That's right.

Q         And it's fair to say that you want to impress upon these people that if they have any hope of getting out of the mess they're in, don't speak to the police?

A          Yes.  I don't say "mess you're in" but --

Q         I know.  But you try to communicate that thought to these people?

A          That's right.  Short and simple. 

Q         Yes.  And you'd agree, it's not rocket science we're dealing with here?

A          No.  It's quite simple.  And in one sense, there's no difference between murder and shoplifting. 

[48]            The lawyer said he was not concerned with any of the details of the case and so his calls take no more than two to four minutes.  

Q         And in the normal course during the time of the conversation we're speaking about today, that is May 14th, 2004, was it your practice to explain what you just told the court about who you actually are and what your connection is to any organisation that may have retained you and so on?

A          No.  I try to -- to not sound too complicated.  Simplicity is the key here.  And the main things are, first determine whether the accused is going to be released, whether there's going to be a hearing with the JJP.  And secondly, and most important, always repeated three and four times, stay silent, don't say anything.  And in particular where there's a serious offence, don't speak to any of the other prisoners either, because the other prisoners could be police in undercover.  So don't talk to anybody except a lawyer until next week.  Lie low.  Keep quiet.

Q         The length of the call in this case you've told us about.  Was that a typical length of a Brydges line call?

A          Generally they're between, say, two and four minutes.  In the exceptional case of accused who are very, very chatty.  Some accused really want to talk your ear off.  They want to complain about the police.  Others are very, very quiet.  It's just a Yes, No, Yes, No.  And in this case it looks as though, from the length of the conversation, that it -- that there wasn't much being said by the accused.  So I come straight to the point.  First deal with the bail status.  You aren't going anywhere.  You're not likely to get released by the JJP.  And most important, stay silent.  I ask whether he's given a statement.  He said, "Yes, I have been speaking to the police".  Then I'd urge him not to say anything further to them or to anybody else who's in the jail with you because that could be somebody sort of undercover.  So there wasn't really a great deal to really cover, surprisingly.  Because I'm not going to involve myself with the details of the case.  I don't deal with them.  I don't have the report to Crown counsel.  So the main thing is just to advise the accused of his constitutional rights and say it three times.

[Emphasis added.]

[49]            The lawyer did not refer the appellant to any local lawyer who could attend to him.  After explaining that he was not employed by legal aid, the lawyer went on to explain that making a local referral was not part of his job:

Q         What about the possibility of contacting local counsel?  That is counsel in the Vancouver Island, particularly Courtenay, area in a case like this?  Did you ever do such a thing?

A          No.  I literally don't know many of the lawyers over there.  I know of only two criminal lawyers on Vancouver Island.  That's the Green brothers, Richard and John, who have been practising out of Victoria.  But it was never our instruction to try to chase down lawyers.  One thing, wouldn't literally know who to call.  And there's no way to kind of follow it up, of getting a phone message back the following day or two days later and so on.  My shift would be over.  So there was no provision for chasing down lawyers and I wouldn't even really know which direction to go chasing anyway.  I literally don't know many lawyers on the island.

Q         And was it the practice as of May 14th, 2004, to make any, let's say advance call to legal aid about this individual in Courtenay who's facing a serious charge and will be appearing in court on Monday sort of as a heads-up to them?  Or was it left to the individual to follow up in that respect?

A          It was left to the individual.  There's no -- I mean, if it's Friday night, there's no particular way of calling the Law Society of British Columbia.  That -- That legal aid.  They simply close down by Friday evening and they won't be open until Monday morning.  So there's no particular after-hours call.

Q         You're referring to the Legal Services Society of British Columbia?

A          That's right.  To the best of my knowledge, they didn't then and I don't think now have any particular means of taking those calls.  That's why I say wait until Monday, contact a lawyer on Monday.  Don't do anything other than -- Don't do anything between now and then.

[50]            The room in the detachment where the appellant received the call had a telephone without a dial or keypad; there was no telephone book made available to him or a list of lawyers who do legal aid in the community.  Mr. Mulligan filed the local directory as an exhibit in the voir dire.  It contained 20 yellow pages of lawyers' listings.

[51]            When the call was over, the interrogation began.  The appellant obviously did not appreciate his position.  He did not know that he needed to have a more detailed discussion about how to handle the interview so as to protect himself.  He carried on in an attempt to find out what the police had as evidence against him.  Had he discussed this approach with a lawyer with more time and interest in his case, he would have been told that he should not try to persuade the police that he is innocent, and that he should let a lawyer gather particulars from the police.

[52]            The appellant tried to argue his case with the police.  He took the line that if he committed the murder, why would he have volunteered a DNA sample, how could he have forgotten such a thing or behaved normally, as he did for the several intervening weeks?  He eventually gave in to the constable's stratagem that he needed to know what happened to assure the appellant's father, girlfriend, and his community that this was an unplanned event and that he was not a predator. 

[53]            Stepping back from these circumstances and assessing them from a fair treatment perspective, here is a young, unsophisticated accused in custody with the benefit of a two-minute phone call, put against a skilled interrogator lawfully entitled to persuade him to ignore the lawyer's advice and to employ a range of techniques within the generous ambit permitted by R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38, and more recently, R. v. Spencer, 217 C.C.C. (3d) 353, 2007 SCC 11.  If that is all that s. 10(b) provides in a case of first degree murder, the Charter protection is largely illusory. 

[54]            In my judgment, the appellant was denied his s. 10(b) right to counsel.  The judge was wrong to rule as he did. 

[55]            To summarize, a detainee under arrest has the right to remain silent.  This integrates with the privilege against self-incrimination:  s. 7.  He is entitled to timely and effective access to counsel prior to police interrogation:  s. 10(b).  Immediate advice of counsel addresses not only the right to remain silent but also how to exercise that right.  Police are obliged to facilitate access to counsel within reason – the implementational duty.

[56]            These rights serve the principle of fair treatment of an individual under the control of the state.  The Brydges line system failed in this case to meet the needs of the appellant's situation.  It did not constitute access to counsel and since the police did not implement access in any other form, the appellant's s. 10(b) rights were denied.

[57]            The statements were, of course, conscriptive and ought to have been excluded under s. 24(2) of the Charter.  There remains the issue as to the appropriate disposition of the appeal.

[58]            As mentioned, the Crown led DNA evidence as proof of identification.  Powerful as this evidence was, the judge did not rely on it as independent proof of guilt but rather used it as supporting the confessions which in his mind constituted the primary basis for conviction.  He said in his reasons:

[17]  The primary evidence of the identification of Mr. Osmond as [K.J.'s] killer comes from Mr. Osmond's videotaped statements to the police.  In these statements, a tearful and emotional Mr. Osmond tells the police that on the night in question he entered the [J.] trailer and slipped into the bed of [A.J.]; that he found [K.] there instead; that [K.] "freaked out" and started slapping and scratching him; that he hit her and stabbed her until she lost consciousness; that he dragged her outside, flipped her body over the back fence, and put her body in a hole and then covered it with scrap wood and salmonberry branches.

* * *

[22]  Most significantly, the results of the DNA analysis corroborate the truthfulness of his admission of homicide in addition to being independent circumstantial evidence that Mr. Osmond was [K.J.'s] killer.

[Emphasis added.]

[59]            The respondent did not invoke the curative proviso under s. 686(1)(b)(iii) of the Criminal Code in the event that we should find a Charter breach that excludes the confessions.  Given the emphasis that the judge placed on the confessions and the secondary role he assigned to the DNA evidence, I think the respondent was correct in not asserting that the appeal should be dismissed on the ground that the result would inevitably have been the same absent the error.

CONCLUSION

[60]            I would allow the appeal, set aside the verdict of guilty and order a new trial.

“The Honourable Mr. Justice Donald”

I agree:

“The Honourable Madam Justice Prowse”

I agree:

“The Honourable Mr. Justice Chiasson”