Case dealt with the Charter-protected right to obtain and instruct counsel without delay
The Ontario Court of Appeal overturned a man’s robbery and firearm convictions, finding the court should have excluded vital evidence because the police violated his Charter-protected right to obtain and instruct counsel without delay.
R. v. Whittaker, 2024 ONCA 182 was notable for the interplay between the importance of Charter rights and the impact of excluding evidence on the repute of the administration of justice, says Lance Beechener, counsel for Whittaker. He says crown counsel pointed out that the case raised significant public safety concerns because it concerned a robbery with a loaded shotgun in a busy area of Toronto.
“However, while the nature of the evidence in question is certainly relevant and worth considering, courts must also hold the line for the principle that Charter rights matter, particularly one as fundamental as the right to counsel, the exercise of which allows all the other rights and freedom to be most effectively asserted,” says Beechener, a partner at Posner Craig Stein LLP.
An Ontario court convicted the appellant, Dwight Whittaker, of robbery with a firearm, carrying a concealed weapon, possession of a loaded restricted firearm, unauthorized firearm possession, and possession of a firearm with an altered serial number.
Whittaker appealed his convictions, arguing that the trial judge erred in refusing to exclude from the evidence the firearm and ammunition seized during his arrest. The judge had found that police breached Whittaker’s rights under s. 10(b) of the Charter but opted not to exclude what the police had uncovered through the breach. Whittaker also argued that the judge erred in finding his arrest and two searches incident to his arrest lawful and admitting video surveillance footage into evidence without proper authentication.
Whittaker asked the appeal court to set aside his convictions or give him a new trial.
The Court of Appeal’s panel consisted of Justices Janet Simmons, Katherine van Rensburg, and Jonathon George. They allowed the appeal, finding the trial judge erred in her analysis under s. 24(2) of the Charter, which obliges the court to prevent improperly obtained evidence from being admitted if it would undermine trial fairness.
Writing the reasons for the panel, George said he would exclude the evidence and substitute acquittals on all counts.
The robbery occurred outside an LCBO store near Queen Street West and Dunn Avenue in Toronto. Two men approached the victim, and one pressed a shoulder bag against his side, telling him there was a gun inside. One of the men struck the victim in the face, took his wallet and necklace and threatened to shoot him.
LCBO staff told police that a person matching the description of one of the suspects had been in the store thrice that night. An officer watched the surveillance video footage and believed the person was involved in the robbery. The officer informed colleagues about the suspect, and another officer came across Whittaker, who was wearing a shoulder bag, and believed he matched the description of the man in the surveillance footage.
The officer arrested Whittaker, advised him of his right to counsel, and asked if he wished to speak to a lawyer. He said he did. Police then conducted two searches at the scene: one of him and one of his bag. The search of the bag revealed a loaded 12-gauge pump-action shotgun with its serial number removed. After finding the gun, the officer advised Whittaker of his right to counsel a second time but could not remember his response. Whittaker was ultimately denied access to counsel until the next day when he attended court.
The trial judge found police violated Whittaker’s s. 10(b) rights – the right to obtain and instruct counsel – but that the inclusion of the gun and ammunition in the evidence against him would not bring the administration of justice in repute.
While s. 10(b) guarantees that everyone arrested or detained has the right to retain and instruct counsel without delay, George said Whittaker asked to speak with counsel but was never given the opportunity to do so. That Whittaker’s s. 10(b) rights were violated was not in dispute in the appeal.
Under s. 24(2), judges analyze whether the inclusion of evidence obtained unconstitutionally will bring the administration of justice into disrepute. Following the process set out in R. v. Grant, they examine the seriousness of the Charter-infringing state conduct, its impact on the accused’s Charter-protected interests, and society’s interest in adjudicating the case on its merits.
George said the trial judge made two reversible errors in the assessment under the first two Grant factors. In an analysis of the seriousness of the Charter infringing conduct, the trial judge highlighted that the arrest was a “high-adrenaline” and “high-risk” situation, which contributed to the officer’s failure to facilitate Whittaker’s exercise of his right to retain and instruct counsel. The officer also said it was confusing when Whittaker had said something about sureties after being asked if he wished to speak to a lawyer at the police station. But George noted that Whittaker had already said he wanted a lawyer when asked at the arrest scene. Neither of these rationales persuaded the Court of Appeal, and this reasoning mischaracterized the breach as an honest mistake or an oversight.
George found the trial judge “improperly downplayed” the seriousness of the breach and erred by speculating why the police did not facilitate contact with counsel. The judge also erred by “treating the absence of a systemic problem” as a mitigating factor and “effectively equating inadvertence with good faith.” While not deliberate or part of a broader systemic problem, the police’s failure was “serious and inexcusable,” said George.
The trial judge also found that the second Grant factor – the impact on the Charter-protected rights – favoured exclusion of the evidence because the violation did not lead to Whittaker incriminating himself. George said the judge erred in focusing on the lack of incrimination while ignoring other relevant factors. Whittaker was deprived of the benefit of counsel’s advice on the procedure to which he was subject and what he could do to obtain release.
“The appellant’s access to counsel was not merely delayed – it was, whatever the reason, completely denied. It is difficult to imagine when, if ever, the complete denial of a Charter-protected right for such a prolonged period would lead to a finding that the second Grant factor favours admission,” said George.
The crucial question in a s. 24(2) case is how to cultivate long-term respect and public confidence in the rule of law, says Beechener.
“After all, why should the police (or the public for that matter) care about or respect the law, including the Constitution and Charter, if the courts tolerate and condone serious violations by allowing a person to be convicted based upon evidence connected to said violations?”
