COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fountain, 2017 ONCA 596

DATE: 20170712

DOCKET:
C62255

Rouleau, Trotter and
    Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Howard Fountain

Appellant

Delmar Doucette, for the appellant

Rachel Young, for the respondent

Heard: May 18, 2017

On appeal from the conviction entered on October 22, 2015
    by Justice Ferhan Javed of the Ontario Court of Justice.

Paciocco J.A.:

A.

OVERVIEW

[1]

Jason Fountain (Mr. Fountain) was convicted after trial by judge alone
    on four counts of armed robbery contrary to s. 344(1) of the
Criminal Code
;
    four counts of forcible confinement contrary to s. 279(2) of the
Criminal
    Code
; and breaking and entering a dwelling house to commit an indictable
    offence therein contrary to s. 348(1)(b) of the
Criminal Code
. These convictions are based on a finding by the
    trial judge that Mr. Fountain
was a party to a home invasion
    robbery that occurred on September 25, 2014 in which drugs and electronics were
    stolen, and the four occupants were threatened with a gun and tied up. Mr.
    Fountain
was sentenced to
four
    years in prison, minus time served.

[2]

Mr. Fountain appeals these convictions. He urges that the trial judge
    erred in finding that his right to counsel was not breached after his arrest,
    and in not excluding statements he made before speaking to a lawyer.
    Specifically, Mr. Fountain claims that the investigating officer, Detective
    Paolo Dellipizzi (Det. Dellipizzi) should have given him a
Prosper
warning
    when he opted to wait until the next day to speak to his lawyer after his
    lawyer could not be contacted the day of his arrest, despite repeated efforts.
    A
Prosper
warning, developed in
R. v. Prosper
, [1994] 3
    S.C.R. 236, is meant to ensure that detainees understand what they are giving
    up when they abandon their attempt to get legal advice without delay. Mr.
    Fountain claims that, given the circumstances of this case, in the absence of a
Prosper
warning his statements must be excluded.

[3]

I agree with Mr. Fountain that a
Prosper
warning was required,
    and that the trial judge erred in rejecting Mr. Fountains s. 10(b)
Charter
challenge.

[4]

Specifically, the trial judge erred in finding that Mr. Fountain lost
    entitlement to a
Prosper
warning because he was not reasonably
    diligent in seeking legal advice. This finding ignores the context. When Mr.
    Fountain declined the offer to call a legal aid lawyer and chose to wait until
    the next day to speak to his own counsel, he was accepting an option that Det.
    Dellipizzi held out. Mr. Fountain had no reason to believe that he was
    compromising his constitutional rights by making that choice.

[5]

The trial judge also erred when he held that Mr. Fountain did not
    qualify for a
Prosper
warning because he did not expressly indicate
    that he had changed his mind about speaking to a lawyer. In fact, a
Prosper
warning is triggered even by an
apparent
change of mind, and it was apparent that Mr. Fountain was no longer seeking to
    speak to a lawyer without delay when he chose to wait until the next day.
    Certainly that is how Det. Dellipizzi saw it. That being so, Det. Dellipizzi
    should have given him a
Prosper
warning.

[6]

The trial judges finding that Mr. Fountain waived his right to consult
    counsel without delay is also in error. Without a
Prosper
warning
    having been given there is no basis for inferring that Mr. Fountain understood
    what he was giving up when he chose to wait until the next day.

[7]

It was also an error for the trial judge to find that if a
Prosper
warning
    was required, a police caution is an adequate substitute for that

warning.
    It is not. A proper
Prosper
warning requires more than knowledge of
    the right to remain silent.

[8]

Mr. Fountains s. 10(b) rights were therefore violated. In all of the
    circumstances, the statements he made before consulting counsel require
    exclusion under s. 24(2) of the
Charter
.

[9]

These statements were the lynch-pin of the Crowns case, which was built
    primarily on Mr. Fountains admissions that he drove the two intruders to the
    invasion, and that he had been to the address where he is seen on the
    surveillance tape with the other two suspects on the day of the invasion. The
    Crown required the latter admission to date the surveillance tape since, at
    trial, there proved to be no objectively reliable way of confirming when the
    video was taken.

[10]

The prosecution against Mr. Fountain cannot survive the exclusion of
    these statements. I would therefore allow Mr. Fountains appeal, quash the
    convictions and enter acquittals.

B.

FACTS RELEVANT TO THE RIGHT TO COUNSEL

[11]

Events leading to Mr. Fountains impugned statement began at 1:31 p.m.
    on October 14, 2014, when Det. Dellipizzi arrested Mr. Fountain and advised him
    of his right to counsel. Mr. Fountain asked Det. Dellipizzi to have his
    girlfriend, who was present at the time of arrest, call his lawyer.

[12]

Another officer transported Mr. Fountain to the station at 1:45 p.m.
    Det. Dellipizzi remained at the scene to search Mr. Fountains car and speak
    with his girlfriend.

[13]

When Mr. Fountain arrived at the station at 2:10 p.m., he confirmed that
    he was advised of his right to counsel and told the booking officer that he
    wished to contact a lawyer. He identified Richard Aitken (Mr. Aitken) as his
    lawyer and provided his phone number.
[1]

[14]

At 2:13 p.m., Det. Dellipizzi spoke to Mr. Fountains girlfriend who
    provided him with a phone number for Mr. Fountains lawyer, which matched the
    number Mr. Fountain had furnished at the station.

[15]

Det. Dellipizzi first attempted to reach Mr. Aitken at 2:35 p.m. on his
    way to the station after searching Mr. Fountains car. He reached Mr. Aitkens
    Oshawa office and spoke to someone there who said that Mr. Aitken was in
    Peterborough but would call him back. Based on what he was told, Det.
    Dellipizzi assumed that Mr. Aitken was in Peterborough on another case.

[16]

At 5:03 p.m. Det. Dellipizzi visited Mr. Fountain at his cell and
    advised him that Mr. Aitken was out of town on another matter.

[17]

At 6:16 p.m. Det. Dellipizzi called Mr. Aitkens Oshawa office again,
    leaving a message for Mr. Aitken to call.

[18]

At 6:57 p.m. Det. Dellipizzi called Mr. Fountains girlfriend, who
    advised that Mr. Aitkens office had said that a lawyer would be there in the
    morning.

[19]

It was not until 8:13 p.m. that Mr. Fountain was brought to an interview
    room. After advising Mr. Fountain generally about why he was in custody, Det.
    Dellipizzi raised the right to counsel issue. The following exchange occurred
    after Det. Dellipizzi told Mr. Fountain that he had tried to reach Mr. Aitken
    twice:

Fountain: I havent  I havent been able to.

Dellipizzi: Yeah, thats why Im here to explain it to you. I
    did call twice. Um, I spoke to a receptionist or whatever they are there. Uh,
    Tanya [your girlfriend], I talked to her

Dellipizzi:  But she told me she talked to some lady at the
    law office, who said theres going to be a lawyer there. Okay?

Fountain: Okay.

Dellipizzi:  for whatever reason uh, Mr. Aitkens office
    hasnt called here. I dont know why.

Fountain: Mmm-hmm.

Dellipizzi: Uh, do you want to call another lawyer or free
    Legal Aid uh, and talk to one of the uh, lawyers in regards to uh, these
    charges? Any lawyer you want or we can call free Legal Aid.

Fountain: Ill just  Ill just wait till tomorrow, I guess, if
    theyre going to have someone there tomorrow cuz its already late now, isnt
    it?

Dellipizzi: No, theyre open. Legal  Legal Aid is open 24
    hours.

Fountain: No, I know.

Dellipizzi: And other lawyers.

Fountain: What time is it?

Dellipizzi: Its uh, eight-twenty.

Fountain: Yeah?

Dellipizzi: Um, okay. So, you  what do you want to do? You
    want to just wait till the morning or

Fountain: Yes.

Dellipizzi:  do you want somebody called? Okay.

[20]

At that point, Det. Dellipizzi cautioned Mr. Fountain. He gave both the
    primary caution about the right to silence and the secondary caution warning
    Mr. Fountain to disregard any prior influences to speak that may have come from
    other officers. Det. Dellipizzi then began to question Mr. Fountain.

[21]

After an exchange that took some 30 pages to transcribe, the following
    conversation occurred:

Fountain: Like you keep asking me the same questions. Like Ive
    asked to speak to my lawyer, like

Dellipizzi: Okay. Well, yeah, you can.

Fountain: Well....

Dellipizzi: The only thing is, she [sic] hasnt called. Thats
    why I said if you want, you can call another lawyer

Fountain: Well, the thing is

Dellipizzi: or free Legal Aid.

Fountain: Like this is an illegal interrogation without me
    speaking to a lawyer, is it not?

Dellipizzi: Its up to you, man. Youre the one that dictates
    to me what you want done.

Fountain: Well, youre  you keep pushing and pushing. I  I.

[22]

Det. Dellipizzi recommenced questioning Mr. Fountain. Shortly thereafter
    this exchange took place:

Fountain: Like honestly, I dont know why you keep asking me
    this if you already know everything. I keep saying I want to talk to my lawyer.

Dellipizzi: Like I said, if you want, I.

Fountain: I said.

Dellipizzi: Unfortunately, Mr. Atkins  Mr. Atkins isnt
    returning the calls. But if you want, you tell me what lawyer if theres a
    second lawyer that you want to call or a third, whatever, we can call him, or I
    can call Legal Aid. But I cant force him to call here. I dont know why hes
    not called.

Fountain: Then call Legal Aid, then.

Fountain: I dont know what my rights are, like.

[23]

Mr. Fountain spoke to a Legal Aid lawyer at 9:34 p.m. After that, he
    made no comments of substance and was returned to his cell at 9:51 p.m.

C.

Decision Below

[24]

The trial judge dismissed Mr. Fountains
Charter
application.
    He concluded that the evidence obtained from Mr. Fountains interrogation was
    not obtained in a manner that violated his right to counsel under s. 10(b) of
    the
Charter
.

[25]

The trial judge found that Det. Dellipizzi complied with the
    informational component of s. 10(b) by informing Mr. Fountain of his right to
    counsel, and with the implementation component by trying to contact Mr.
    Fountains lawyer on two occasions. However, the trial judge found that Mr.
    Fountain did not act in a reasonably diligent manner by waiting until the
    following day to speak to his lawyer rather than speaking to another lawyer
    immediately. He held that a
Prosper
warning to advise Mr. Fountain of
    the rights he was giving up was not required, both because of the absence of
    reasonable diligence, and because Mr. Fountain had not expressly said he did
    not want to contact counsel. The trial judge then held that, if he was wrong,
    Mr. Fountain waived his right to counsel and the caution given to Mr. Fountain
    was an effective substitute for a
Prosper
warning.

[26]

The trial judge went on to hold that, if he was wrong in his assessment
    of the
Charter
violation, he would not have excluded Mr. Fountains
    statement under s. 24(2) of the
Charter
.

D.

ANALYSIS

(1)

The
Prosper
Warning

[27]

The
Prosper
warning is meant to equip detainees with the
    information required to know what they are giving up if they waive their right
    to counsel. A
Prosper
warning is not required in all cases. It is
    needed only if a detainee has asserted the right [to counsel] and then
    apparently change[s] his mind after reasonable efforts to contact counsel have
    been frustrated:
R. v. Smith
(1999), 44 O.R. (3d) 373 (C.A.), at p. 384.
    In such circumstances, the burden of establishing a waiver of those rights is
    on the Crown and is a high one, requiring proof of a clear, free and voluntary
    change of mind made by someone who knew what they were giving up:
Smith
,
    at p. 382;
Prosper
, at pp. 274-275. A proper
Prosper
warning
    is therefore significant in enabling the Crown to prove waiver of the right to
    counsel in such cases.

[28]

It is helpful in understanding the
Prosper
warning to
    appreciate the rights that are stake when a detainee waives their right to
    counsel. Specifically, when a detainee asserts their desire to exercise the
    right to counsel, either expressly or by not waiving their right to counsel,
    the police are obliged to cease questioning and are under a duty to facilitate
    the exercise of that right:
Smith
, at p. 380. The temporary
    obligation to cease questioning also extends to other efforts to elicit
    evidence from the detainee, and is often referred to as the obligation or duty
    to hold off, since there is no problem in properly using the detainee as a
    source of evidence after they have exercised or relinquished their right to
    counsel:
Prosper
, at p. 269.

[29]

In
Prosper
,

at p. 274,

Lamer C.J. described
    the required
Prosper
warning and its legal triggers in this way:

I find that an additional informational obligation on police
    will be triggered once a detainee, who has previously asserted the right to
    counsel, indicates that he or she has changed his or her mind and no longer
    wants legal advice. At this point, the police are required to tell the detainee
    of his right to a reasonable opportunity to contact a lawyer and of the
    obligation on the part of the police during this time not to take any
    statements or require the detainee to participate in any potentially
    incriminating process until he or she has had that reasonable opportunity.

[30]

If the detainee is not reasonably diligent in exercising the right to
    counsel, the duty to hold off will be suspended and the police may question the
    detainee:
R. v. Bartle
, [1994] 3 S.C.R. 173, at p. 192;
R. v.
    Brydges
, [1990] 1 S.C.R. 190, at p. 204. The obligation on the police to
    make efforts to facilitate contact with counsel will also be suspended
: R.
    v. Willier
, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 43-44. The right
    to receive a
Prosper
warning at the time will also be lost. After all,
    there is no need to advise a detainee of what they will lose if they waive
    their right to consult counsel without delay, where the detainee has already
    forfeited that right by not being reasonably diligent in exercising it.

[31]

The Crown argues that the trial judge applied this law correctly and was
    entitled to hold, on the evidence, that a
Prosper
warning was not
    required. I disagree.

(a)

Reasonable Diligence

[32]

The trial judges primary basis for ruling that a
Prosper
warning
    was not needed was his finding that Mr. Fountain had not been reasonably
    diligent in exercising his right to counsel by requesting to wait until morning
    to call Mr. Aitken instead of consulting duty counsel immediately. The trial
    judge explained that despite Det. Dellipizzi telling Mr. Fountain that Legal
    Aid is open 24 hours and rectifying any misconceptions Mr. Fountain had
    regarding the availability of counsel, Mr. Fountain persisted in his request
    to wait until the following day, not availing himself of duty counsel [T]his
    was not acting reasonably diligently.

[33]

This finding by the trial judge that Mr. Fountain was not reasonably
    diligent because he chose to wait until the following day to speak to his
    lawyer is wrong. It fails to take into account the context of Mr. Fountains
    decision to delay speaking to counsel.

[34]

Understood in context, Mr. Fountain was not being obstinate. He was not
    trying to impede the investigation. Nor was he signalling by his conduct that
    he was not serious about wanting to speak to a lawyer without delay. He was simply
    taking up an option that had been presented to him by Det. Dellipizzi, as if it
    was a benign choice that Mr. Fountain was entitled to make.

[35]

Specifically, after Mr. Fountain had been waiting in custody for
    approximately six and a half hours, Det. Dellipizzi took Mr. Fountain to the
    interview room. Det. Dellipizzi then explained that efforts to reach Mr. Aitken
    had failed but that a lawyer would be present the next day at Mr. Fountains bail
    hearing. Mr. Fountain suggested he would wait until morning. Without in any way
    indicating that it would be problematic for Mr. Fountain to wait to speak to
    his lawyer, Det. Dellipizzi offered Mr. Fountain the following options:

Dellipizzi: Um, okay. So, you  what do you want to do? You
    want to just wait till the morning or

Fountain: Yes.

Dellipizzi:  do you want somebody called? Okay.

[36]

When Mr. Fountain was offered the binary option of calling a legal aid
    lawyer now or waiting until the next day to speak to his own lawyer he would
    have had no reason to suspect that he would be forfeiting the hold off
    protection he had been enjoying, should he chose the latter option. Mr.
    Fountain was entitled to proceed as though either choice was reasonable. In
    this context, there was therefore nothing unreasonable in Mr. Fountain opting
    to wait until the next day.

[37]

Indeed, rather than demonstrating a lack of reasonable diligence on the
    part of Mr. Fountain, the way in which Mr. Fountain came to choose to speak to
    his lawyer the next morning reinforces the importance of a
Prosper
warning.
    As explained, the purpose of a
Prosper
warning is to ensure that
    detainees know what they are giving up when they abandon their efforts to speak
    to counsel without delay. If a detainee is not advised that they will lose a
    constitutional protection if they choose an offered option, that offer can
    operate as a trap. If Det. Dellipizzi was going to treat an option he was
    offering Mr. Fountain as authority to begin using Mr. Fountain as a source of
    evidence before he had spoken to a lawyer, Det. Dellipizzi should have told Mr.
    Fountain this. Yet he did not do so.

[38]

In these circumstances, Mr. Fountains decision to decline duty counsel
    and wait until the next day cannot fairly be taken as exhibiting an absence of
    reasonable diligence, and the trial judge erred by treating it as such

(b)

Change of mind

[39]

Another reason offered by the trial judge as disqualifying Mr.
    Fountains right to a
Prosper
warning was that Mr. Fountain had not
    declined the opportunity to consult with counsel. Specifically, the trial judge
    said:

In this case, I am of the view that a
Prosper
warning
    was not warranted, because a warning is only required where a detainee is
    diligent, but unsuccessful in contacting a lawyer, and subsequently declined
    any opportunity to consult with counsel. That is not what happened here. The
    detainee was not diligent, and, in any event, never expressly said he did not
    want to consult with counsel.

[40]

Picking up on this, the Crown contends that since Mr. Fountain wanted to
    speak to his lawyer the next day, he did not change his mind about wanting to
    speak to his lawyer  a necessary trigger for a
Prosper
warning  and
    therefore he does not qualify for a
Prosper
warning.

[41]

Before turning to the trial judges conception of what declining an
    opportunity to consult counsel entails, I will begin with the Crowns
    submission. If the Crowns point is that in order to trigger a
Prosper
warning,
    a detainee must decline the opportunity to consult a lawyer now and in the
    future, the focus is wrong.
Prosper
is not about waiver of the right
    to counsel in its entirety. It is about the waiver of the immediate right to
    counsel without delay. The fact that Mr. Fountain wanted to speak to a lawyer
    at some point in the future does not bear on whether he declined the
    opportunity to consult counsel without delay.

[42]

If the Crowns point is that, subjectively, Mr. Fountain did not decline
    the opportunity to consult counsel without delay because he wanted to speak to
    his lawyer at the first available opportunity, which happened to be the next
    day, it is also unhelpful. Had this been so, Mr. Fountains rights would still
    have been violated. The law knows of but two ways that the constitutional right
    of a detainee to consult counsel without delay can be lost  through a lack of
    reasonable diligence in exercising that right and through waiver. I have
    already addressed the reasonable diligence point, and
ex hypothesi
,
    someone who still wants to speak to counsel without delay has not waived that
    right.

[43]

Turning to the trial judges reasoning, I would note in passing that the
    submission that Mr. Fountain did not change his mind about wanting to speak to
    counsel is difficult to square with the trial judges alternative finding that
    Mr. Fountain waived his right to counsel without delay by saying that he would
    wait to speak to his lawyer in the morning. After all, a waiver of the right to
    counsel by someone who has previously and continuously asked to speak to
    counsel necessarily entails a change of mind about wanting counsel without delay.

[44]

There is, however, a more pressing problem with the trial judges
    treatment of the
Prosper
prerequisite that a detainee must decline the
    opportunity to consult counsel. As a matter of law, Mr. Fountain did not have
    to expressly say that he changed his mind about wanting to speak to counsel
    without delay in order to trigger entitlement to a
Prosper
warning.
    Just as a waiver can be implicit, so too can a change of mind about getting the
    kind of immediate legal advice that s. 10(b) is meant to protect:
Bartle
,

at pp. 191-192. Accordingly, if it is
apparent

that a detainee has changed his mind about wanting to speak to counsel
    without delay, and no other legal impediments to the right to a
Prosper
warning
    are operating, that warning must be given.

[45]

As Rosenberg J.A. makes clear in
Smith
,

at p. 384, the
    obligation is placed on the police to give a
Prosper
warning where
    the detainee has asserted the right [to counsel] and then
apparently
change[s] his mind (emphasis added). This is
    so because the purpose of the
Prosper
warning is to ensure that an
    apparent waiver of the detainees rights under s. 10(b) is a real waiver  made
    clearly and unequivocally, with full knowledge of the detainees s. 10(b)
    rights:
Prosper
, at pp. 274-275;
Smith
, at pp. 382-383.

[46]

While Lamer C.J. does refer in
Prosper
, at p. 274, to a
    detainee that indicates that he or she has changed his or her mind, when he
    summarized the rules developed in
Prosper
,

at p. 278, he
    said:

Upon the detainee
doing something which
    suggests he or she has changed his or her mind or no longer wishes to speak to
    a lawyer
, police will be required to advise the detainee of his or her
    right to a reasonable opportunity to contact counsel and of their obligation
    during this time not to elicit incriminating evidence from the detainee.
    [Emphasis added].

[47]

In
Prosper
, Mr. Prosper did not express a change of mind about
    speaking to a lawyer. His change of mind was inferred because, after learning
    that free duty counsel services were not available, Mr. Prosper commented that
    he could not afford a lawyer when asked if he wanted to call one.

[48]

In this case, Mr. Fountain clearly had an apparent change of mind from
    his earlier insistence on speaking to a lawyer now, when he said he wanted to
    wait until the next day to speak to a lawyer. Without question, Det. Dellipizzi
    believed it to be apparent that Mr. Fountain was declining his s. 10(b) right
    to consult without delay. After all, once Mr. Fountain said he would wait to
    speak to his lawyer, Det. Dellipizzi believed he no longer had to hold off in
    questioning him. Det. Dellipizzi should have provided Mr. Fountain with a
Prosper
warning before doing so.

(c)

Waiver

[49]

I do not accept the Crowns submission that the trial judge was correct
    in finding that even if a
Prosper
warning was required Mr. Fountain
    waived his right to consult counsel without delay by choosing to wait until the
    next morning to call his lawyer. In
Prosper
, at p. 275, Lamer C.J.
    affirmed that a person who waives a right must know what he or she is giving
    up if the waiver is to be valid. He explained that the additional
Prosper
informational
    requirement ensures that a detainee who persists in wanting to waive the right
    to counsel [that they had been trying to enjoy] will know what it is that he or
    she is actually giving up:
Prosper
, at p. 274.

[50]

In this case, absent a
Prosper
warning, it is not possible for
    the Crown to meet its burden of showing that Mr. Fountains apparent change of
    mind about consulting counsel without delay was a knowing and effective waiver.
    There is nothing on the record to show that he knew what he would be giving up.
    Indeed, Mr. Fountain protested the continued interrogation because he did not
    know what his rights were.

[51]

The
Prosper
warning should have been given, and if Mr. Fountain
    then persisted in declining duty counsel and waiting until the next day to
    speak to his lawyer, the Crown would have been in a position to demonstrate a
    proper waiver. Since the
Prosper
warning was not provided, the waiver
    finding made by the trial judge was wrong. A waiver finding could not
    reasonably have been made on this factual record.

(d)

Standard Caution Versus a
Prosper
Warning

[52]

I disagree with the Crowns final contention that the trial judge was
    correct to hold, in the alternative, that even if a
Prosper
warning
    was required, Mr. Fountain was given enough information to satisfy the law. The
    only warnings given to Mr. Fountain were through police cautions about his
    right to remain silent. The function of a
Prosper
warning is not to
    alert the detainee of their right to silence. It is meant to ensure that a
    waiver of the right to counsel has integrity.

[53]

As is clear from the content of the warning designed by the Supreme
    Court in
Prosper
, a proper
Prosper
warning is meant to alert
    the detainee to the fact that, when they change their mind about wanting
    counsel, the hold off period in using them as a source of evidence is
    suspended. It is also meant to communicate to the detainee that if they want to
    speak to counsel now that they are better informed they will be given a
    reasonable opportunity to do so, even though they may have already signalled
    that they have changed their mind about wanting to speak to counsel. None of
    this information is communicated to the detainee by saying that they have a
    right to silence.

[54]

This case exemplifies the point. After being cautioned about his right
    to silence, Mr. Fountain expressed doubt about whether he was being interviewed
    legally because he had not exercised his right to counsel. He had no idea what
    he was giving up by choosing to wait until the next day to speak to his lawyer.

[55]

The trial judge was therefore wrong to hold that the [police] caution
    given to the defendant was an effective substitute for the required
Prosper
warning, given its temporal nexus to the circumstances of the
    interrogation.  It was not.

(e)

Conclusion on the Section 10(b) Breach

[56]

The trial judge therefore erred in law in several respects on the
Prosper
warning issue. In the factual context of this case there was no basis for
    a finding that Mr. Fountain was not reasonably diligent in exercising his right
    to counsel; it was an error to require an expressed statement by Mr. Fountain
    that he did not want to consult counsel; there was no factual basis for finding
    Mr. Fountain knowingly waived the right to consult counsel without delay; and
    the cautions were not an adequate substitute for a
Prosper
warning. A
Prosper
warning should have been given on the uncontested evidence.

(2)

The Section 24(2)
Charter
Remedy

[57]

Section 24(2) of the
Charter
directs that evidence obtained in
    a manner that infringes a
Charter
right shall be excluded if it is
    established that, having regard to the circumstances, the admission of it in
    the proceeding would bring the administration of justice into disrepute. In
R.
    v. Grant
, 2009 SCC 32,

[2009] 2 S.C.R. 353, the Supreme Court set
    out a three-part test for determining the admissibility of evidence under s.
    24(2): (i) the seriousness of the
Charter
-infringing state conduct; (ii)
    the impact of the breach on the accuseds
Charter
-protected interests;
    and (iii) societys interest in the adjudication on the merits.

[58]

The three-part
Grant
test is applied to determine whether
    evidence should be excluded based on the impact of admission on the repute of
    the administration of justice.

[59]

In this case the trial judge engaged in what he described as the somewhat
    artificial analysis of whether s. 24(2) would have required exclusion, had he
    found a breach. This is not a case, however, where considerable deference is
    required in considering his conclusion:
R. v. MacMillan
, 2013 ONCA
    109, 114 O.R. (3d) 506. His s. 24(2) findings were tainted by the material
    errors he made.

[60]

First, the trial judge considered that any
Prosper
violation
    would be at the minor end of the seriousness spectrum because Mr. Fountain had
    been advised of his right to counsel, and offered the services of duty counsel.
    Second, he concluded that the effect of the breach on Mr. Fountain was attenuated
    because he had clearly been told that what he said could be used against him.
    Both of these conclusions are tainted by the trial judges failure to
    appreciate that the
Prosper
warning is intended to ensure that waivers
    of the right to counsel are integral and informed.

[61]

This court must therefore reconsider anew whether s. 24(2) requires
    exclusion of the evidence. Although there are no fixed rules that apply, writing
    for the majority in
Grant
, McLachlin C.J. and Charron J. state, at paras.
    95 and 96, that the admission of statements, particularly when obtained in
    violation of the right to counsel, will generally be excluded. That, of course,
    is what is at stake here.

[62]

Approaching the matter more specifically using the components of the
Grant
test, the
Charter
breach in this case falls towards the more serious
    end of the good faith/bad faith continuum.

[63]

While Det. Dellipizzi presented as being careful to ensure that he did not
    violate Mr. Fountains right to counsel, and attempted to facilitate that right
    on more than one occasion, good faith involves much more than good intentions.
Prosper
has been the law since 1994. It is not an obscure decision addressing a rare
    event. It is a long-standing precedent governing not only a ubiquitous
    investigative technique  the police interview  but every case where the
    police use a detained suspect as a source of evidence.

[64]

As Rosenberg J.A. pointed out in
Smith
,

at para. 384,

Prosper
instructs the courts to be sensitive to the rights of an
    accused who it is alleged has waived his rights. The same instruction has been
    given by the Supreme Court to police officers, who are expected to be educated
    about their core
Charter
duties. Where an officer aware of this body
    of law is presented with someone who has been insisting on their right to
    counsel and the officer concludes that they have apparently changed their mind
    after efforts to reach counsel have been frustrated, the officer should take
    the necessary steps to ensure that the waiver was real and informed. That did
    not happen. If Det. Dellipizzi was aware of the law, he should have followed
    it. If he was not aware of the law, he should have been.

[65]

Second, the impact of the breach on Mr. Fountains rights was
    significant. It resulted in Mr. Fountain giving incriminating evidence to
    police after being interviewed without knowing his rights.

[66]

In saying this, I accept the Crowns argument that the nature of the s. 10(b)
    violation has an important bearing on the impact of the breach:
Grant
,
    at para. 96. What I do not accept is the Crowns contention that Mr. Fountains
    case falls within one of the illustrations offered by the
Grant
majority
    of when statements can be admitted in spite of a
Charter
violation.

[67]

Specifically, this was not a technical violation. The
Prosper
warning
    is meant to ensure that individuals who have been frustrated in their attempts
    to enjoy their right to counsel do not give up the right to consult counsel
    without delay without a complete understanding of what is at stake. The
Prosper
warning

is a substantial protection designed to preserve the
    integrity of a centrally important
Charter
right to secure legal
    advice when detained.

[68]

This case illustrates how substantial this kind of breach can be. Once
    it became clear to Mr. Fountain that Det. Dellipizzi was claiming the legal
    authority to interview him even though he had not spoken to counsel, Mr.
    Fountain decided to speak to duty counsel immediately, and then became a much
    less fruitful source of information.

[69]

Based on the relative seriousness of the breach and the impact it had on
    Mr. Fountain, this case benefits from the guidance offered in this courts
    decision in
R. v. McGuffie
, 2016 ONCA 365, 131 O.R. (3d) 643, at
    paras. 62-63. Given the strength of the first and second
Grant
inquiries,
    this is a strong case for exclusion, unlikely to be tipped back by the third
    inquiry  societys interest in the adjudication on the merits.

[70]

To be sure, the evidence targeted for exclusion was crucial to the Crowns
    case. Without it, the prosecution fails. And while statements obtained during
    interrogations are not generally considered to be a particularly reliable form
    of evidence, I agree with the Crown that there are fewer reasons to be
    suspicious about Mr. Fountains statements in this case given that Det.
    Dellipizzis approach to questioning was not oppressive or overbearing, and given
    the voluntariness finding of the trial judge.

[71]

Still, the
Charter
right at stake here exists, in part, to
    ensure detainees have reasonable access to legal advice in order to rectify the
    disadvantage they have in preserving the right to silence, and so that they can
    learn about their legal rights relating to their detention. It enables
    detainees to get beyond learning they have a right to silence, to receiving
    advice on how to exercise that right. In my view, condoning the failure by the
    police to respect this well-entrenched
Charter
right
by admitting Mr. Fountains
    statements would do more harm to the long-term repute of the administration of
    justice than the exclusion of his statements.

[72]

The statements made by Mr. Fountain prior to his consultation with duty counsel
    should therefore be excluded pursuant to s. 24(2) of the
Charter
.

E.

Disposition

[73]

For the foregoing reasons, I would allow the appeal.

[74]

The Crown did not contest Mr. Fountains claim that his prosecution
    cannot survive the loss of this evidence and, on the record before us that is
    certainly true. The appropriate outcome, in my view, is therefore to substitute
    an acquittal for the conviction of the trial judge.

Released: RJS JUL 12 2017

David M. Paciocco
    J.A.

I agree. Paul Rouleau
    J.A.

I agree. G.T. Trotter
    J.A.

[1]
The evidentiary record is unclear as to whether any effort was made at the time
    to contact Mr. Aitken. However, Mr. Fountain alleges no breach at this stage.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Husbands, 2017 ONCA 607

DATE: 20170721

DOCKET: C61867

LaForme, Watt and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Husbands

Appellant

Dirk Derstine and Stephanie DiGiuseppe, for the
    appellant

Alexander Alvaro, for the respondent

Heard: June 9, 2017

On appeal from the conviction entered on December 17, 2014, and
    the sentence imposed on April 16, 2015, by Justice Eugene Ewaschuk of the Superior
    Court of Justice, sitting with a jury.

Watt J.A.:

[1]

One day in early June, about five years ago, Christopher Husbands went
    to the Food Court at the Eaton Centre. There, he shot seven people. Two died.
    Five suffered serious injuries, but survived.

[2]

At his trial, Christopher Husbands challenged each prospective juror for
    cause on the ground of racial bias.

[3]

Christopher Husbands wanted his challenges for cause tried in a
    particular way. He asked the trial judge to exercise his inherent jurisdiction
    to exclude all prospective jurors from the courtroom during the selection
    procedure, except for the individual prospective juror whose impartiality was
    being tested, and he wanted the truth of the challenge to be tried by rotating
    triers.

[4]

The trial judge rejected the submission that he had inherent
    jurisdiction to grant the order sought. Instead, he treated the request as an
    application under s. 640(2.1) of the
Criminal Code
and acceded to the defence
    request under that authority.  He ordered that prospective jurors be excluded
    from the courtroom as each individual challenge was being heard and decided.
    But, contrary to Husbands wish, the trial judge directed that the same two
    triers would determine the truth of every challenge for cause. And that is what
    happened at trial.

[5]

The jury found Christopher Husbands guilty of two counts of second
    degree murder, five counts of aggravated assault and individual counts of criminal
    negligence causing bodily harm and reckless discharge of a firearm.

[6]

Christopher Husbands appeals his convictions. He raises a single ground
    of appeal.
[1]
He says that the jury selection procedure followed by the trial judge deprived
    the court of jurisdiction to try him. The court, he claims, was never properly
    constituted. A miscarriage of justice occurred. A new trial is required.

[7]

The reasons that follow explain why I agree that the manner in which the
    trial judge directed that the truth of the challenges for cause be tried was
    fatally flawed. And so it is that I would allow the appeal, set aside the
    convictions and order a new trial on each offence of which Christopher Husbands
    was convicted.

THE BACKGROUND FACTS

[8]

The ground of appeal advanced requires no reference to the circumstances
    in which the offences occurred. What is necessary, however, is an examination
    of what occurred once the parties had settled the basis upon which prospective
    jurors could be challenged for cause.

The Initial Query

[9]

The trial judge asked defence counsel (who was also counsel on appeal)
    whether he wanted the jury panel excluded during the jury selection process.
    The judge said nothing about exclusion of sworn jurors and did not distinguish between
    sworn and unsworn jurors.

The Defence Position

[10]

Defence counsel made it clear that he was
not
bringing an
    application under s. 640(2.1) of the
Criminal Code
. The trial judge
    responded immediately. He advised counsel that in the absence of an application
    under s. 640(2.1), the jury panel would remain in the courtroom during jury
    selection, and the trial of the truth of each challenge would be decided by
    rotating triers:

THE COURT: Okay. Okay. If youre not [making an application
    under s. 640(2.1)] thats the end of the matter and Ill let the jury panel
    theyll be in court, well do rotating and  but theyll be present in court.

[11]

Defence counsel then expressly asked the trial judge, a request he would
    repeat several times, to exercise his discretion, founded on his inherent
    jurisdiction to control the jury selection process, to:

i.

exclude prospective jurors from the courtroom while the challenge of
    each individual prospective juror proceeded; and

ii.

have the truth of each challenge for cause determined by rotating
    triers.

[12]

On one occasion, defence counsel pointed out that the procedure he
    sought to have followed was on consent.

The Position of the Crown

[13]

Despite the on consent reference by defence counsel during his
    submissions, the trial judge never asked the trial Crown (not Mr. Alvaro) for
    any submissions on the issue. The trial Crown said nothing during the entire
    discussion about how the challenge for cause would be carried out.

The Initial Ruling

[14]

The trial judge concluded that the enactment of s. 640(2.1) of the
Criminal
    Code
had displaced the common law discretion of trial judges to exclude
    prospective jurors from the courtroom when the truth of the challenges for
    cause was tried by rotating triers. The judge said:

THE COURT: The accused, Christopher Husbands has applied to exclude
    the jury panel during the selection process. Defence counsel reports [
sic
]
    to apply to do so pursuant to my common-in-law [
sic
] inherent
    discretion. I find that the statutory provision in s. 640(2.1) has displaced
    that common-in-law [
sic
] discretion. I therefore rule that the accused
    has applied under s. 640(2.1) for an order excluding the jurors during the
    selection process and I so order.

The Renewed Application

[15]

Defence counsel persisted. He reiterated his request for rotating
    triers, explaining that the
Criminal Code
did not provide any procedure
    to ensure that static triers were themselves impartial before their selection
    as triers of the challenge for cause.

The Final Ruling

[16]

After defence counsel had concluded his submissions, the trial judge
    ruled:

THE COURT: All right, thank you. I rule that the selection
    process will be conducted by two static jurors pursuant to s. 640(2.2) of the
Criminal
    Code
.

THE GROUND OF APPEAL

[17]

Christopher Husbands (the appellant) advances a single ground of appeal.
    As I would paraphrase it, he says that the trial judge erred in requiring the
    truth of the challenge for cause to be decided by static triers in the absence
    of an application for the exclusion of sworn and unsworn jurors under s.
    640(2.1) of the
Criminal Code
.

Ground #1: Alleged Error in Requiring Static Triers

[18]

No further background need be added to what has already been described
    to settle the environment in which this issue arises for decision in this case.

The Arguments on Appeal

[19]

The appellant begins with a reference to s. 640 as the statutory
    provision that governs the determination of the method used to decide the truth
    of each challenge for cause. Section 640(2) creates a general or default rule
    that requires rotating triers as the adjudicative body. But the general rule
    has an exception, which when properly engaged, permits another method to
    determine the truth of the challenge for cause.

[20]

The single exception to the rotating triers procedure arises from the
    combined operation of ss. 640(2.1) and (2.2). But this alternative adjudicative
    forum is not for the asking. And it is not for both parties. What is required
    is an application by the accused and a determination by the presiding judge
    that the exclusion of all jurors  sworn and unsworn  is necessary to preserve
    the impartiality of the jurors. Provided these requirements have been met, the
    presiding judge has a discretion to order that every challenge for cause be
    decided by the same two triers, so long as the selection process continues.

[21]

The appellant emphasizes that absent an application by the accused, the
    truth of the challenge for cause cannot be decided by static triers. A trial
    judge who unilaterally appoints static triers, without an application by the
    accused, commits jurisdictional error by preventing a properly constituted
    court from coming into existence.

[22]

The appellant says that the amendments to ss. 640(2.1) and (2.2) do not
    remove a trial judges inherent jurisdiction to exclude unsworn, but not sworn,
    jurors from the courtroom, with rotating triers deciding the truth of each
    challenge for cause. Nor do the amendments confer on a trial judge any inherent
    authority to designate static triers to determine the truth of each challenge
    without compliance with the provisions of those amendments.

[23]

In this case, the appellant contends, the trial judge made four discrete
    but related errors. He erred in holding that the amendments removed his
    well-established authority at common law to exclude unsworn jurors from the
    courtroom when using rotating triers. He was mistaken in concluding that he
    could unilaterally order static triers because a request to exclude unsworn
    jurors triggered the operation of ss. 640(2.1) and (2.2). He wrongly determined
    that ss. 640(2.1) and (2.2) permitted the use of rotating triers and further erred
    when he determined that the common law permitted him to choose static triers
    over rotating triers.

[24]

In conclusion, according to the appellant, the trial judges direction
    that the challenge for cause be tried by static triers deprived the court of
    jurisdiction to try him. Such an error exceeds the grasp of the provisos in s.
    686(1)(b) of the
Criminal Code
and requires a new trial.

[25]

The respondent characterizes the application of defence counsel as an
    application to exclude
all
jurors, sworn and unsworn, during the
    challenge for cause procedure. Defence counsel never once limited his request
    for exclusion to
unsworn
jurors. Nevertheless, the trial judge believed
    that he had inherent jurisdiction to order rotating triers where he had
    excluded all the jurors. But he properly ordered static triers in the
    circumstances. In the end, the respondent says, any error that may have
    occurred caused no prejudice to the appellant and did not cause a miscarriage
    of justice.

[26]

The respondent says that the scope of exclusion sought by defence
    counsel determines whether the adjudicative body will be static or rotating
    triers. Provided an accused does not seek exclusion of all jurors  sworn and
    unsworn  rotating jurors may decide the truth of the challenge. That said,
    where the request seeks exclusion of only unsworn jurors, an accused has no
    automatic right to rotating triers. The order is discretionary, not mandatory.
    But where exclusion of all, both sworn and unsworn, is what an accused seeks,
    such a request is governed by ss. 640(2.1) and (2.2), thus rotating triers are
    not available.

[27]

In this case, according to the respondent, what occurred was an
    application by the appellant, developed in two stages, to exclude
all
jurors, sworn and unsworn, but to have the truth of the challenge tried by
    rotating triers. Defence counsel never properly emphasized or confined his
    request for exclusion to the exclusion of
unsworn
jurors or, put another
    way, never said he did not want sworn jurors excluded. In the end, the
    respondent says, counsel agreed to have the application treated as an
    application under s. 640(2.1). In the result, this meant all jurors would be
    excluded and the truth of the challenge for cause would be decided by static
    triers.

[28]

The respondent advances two alternative arguments. The first is that
    despite his direction that static triers would determine the truth of each
    individual challenge, thus that all jurors  sworn and unsworn  would be
    excluded during the challenges for cause, the trial judge left open the use of
    rotating triers. But defence counsel failed to advance any argument that would
    engage the discretion. And the second is that any error or irregularity that
    occurred can be saved harmless by s. 686(1)(b)(iv) in the absence of any
    prejudice or a miscarriage of justice.

The Governing Principles

[29]

The principles that inform our decision in this case have their origins
    in both the common law and the
Criminal Code
. First, the common law
    principles that describe the inherent authority of a judge presiding in a
    criminal trial to manage the trial process, including the selection of jurors.
    Next, the statutory provisions  in particular s. 640 of the
Criminal Code
 that prescribe the manner in which the truth of challenges for cause is to be
    determined. Then, the jurisprudence, largely the decisions of this court,
    interpreting those statutory provisions. And finally, the authority of
    appellate courts to uphold verdicts rendered at trial despite errors and
    irregularities in the conduct of the trial.

The Common Law Authority

[30]

At common law, a trial judge has the authority to supervise and control
    the trial process. Sometimes, this authority is characterized as a discretion,
    on other occasions, an inherent jurisdiction. The label is of no great
    moment. The limits of the authority are not precisely defined, but the
    authority to manage the conduct of a trial is beyond controversy:
R. v.
    Felderhof
(2003), 180 C.C.C. (3d) 498 (Ont. C.A.), at paras. 36-38, 40.

[31]

A specific incident of this common law discretion or inherent
    jurisdiction is the authority to control the jury selection process to make
    effective use of court resources and to ensure fairness to all participants:
R.
    v. Moore-McFarlane
(2001), 160 C.C.C. (3d) 493 (Ont. C.A.), at para. 85;
R.
    v. Noureddine
, 2015 ONCA 770, 332 C.C.C. (3d) 114, at para. 38;
R. v.
    Grant
, 2016 ONCA 639, 342 C.C.C. (3d) 514, at para. 11;
R. v. Murray
,
    2017 ONCA 393, at para. 47. This authority to control the jury selection
    process includes the discretion to exclude prospective (unsworn) jurors from
    the courtroom during the challenge for cause process to ensure the impartiality
    of the jurors selected to try the case:
Grant
, at para. 11;
Murray
,
    at para. 53;
R. v. Swite
, 2011 BCCA 54, 268 C.C.C. (3d) 184, at para.
    28.

[32]

Section 8(2) of the
Criminal Code
ensures that this discretion
    remains intact, despite the enactment of the
Criminal Code
, at least to
    the extent that it is not altered, varied, modified or affected by the
Criminal
    Code
or other federal enactment. But this discretion or inherent
    jurisdiction cannot be invoked as authority for any order that contravenes a
    specific
Criminal Code
requirement:
Noureddine
, at para. 38;
Murray
,
    at para. 47;
Swite
, at para. 28;
R. v. V. (W.),
2007 ONCA 546, at
    para. 22, leave to appeal refused, 386 N.R. 391 (note).

Challenges for Cause under the Criminal Code

[33]

Since the enactment of our first
Criminal
    Code
in 1892, rotating triers have determined the truth of challenges for
    cause advanced on the basis that prospective jurors are not indifferent between
    the parties:
Criminal Code
, 1892, 55-56 Vic., c. 29, s. 668;
Noureddine
,
    at para. 35. Rotating triers remained the exclusive method of trying challenges
    for cause based on lack of indifference until the current s. 640 was amended by
    the addition of subsections (2.1) and (2.2), which came into force on May 29,
    2008.

[34]

Sections 640(2.1) and (2.2) added another
    method of trying the truth of challenges for cause based on lack of
    indifference. But this new method has some strings attached. It is only
    available at the instance of an accused. It cannot be invoked by the Crown. It
    requires:

i.

an application by the accused for an
    order excluding from the courtroom all jurors, both sworn and unsworn, until
    the truth of the challenge for cause is determined; and

ii.

a finding by the presiding judge that the
    exclusion is necessary to preserve juror impartiality.

Further, even upon
    satisfaction of these conditions precedent, an order of exclusion does not
    issue as of right. The controlling language is the permissive may, not the
    compulsory shall:
Noureddine
, at para. 35;
Grant
, at para. 12;
Murray
,
    at paras. 43, 45-46.

The Operation of Sections 640(2.1) and (2.2)

[35]

The enactment of ss. 640(2.1) and (2.2) did not oust or circumscribe the
    common law discretion of a trial judge to exclude unsworn jurors from the trial
    of the truth of the challenge for cause in respect of individual prospective
    jurors by rotating triers. Put somewhat differently, the amendment explicitly
    provided trial judges with an
additional
discretionary authority to
    control the challenge for cause process and ensure a fair trial. What the
    amendments did
not
do, neither expressly nor by necessary implication,
    was to remove a trial judges pre-existing discretion to exclude unsworn jurors
    during the trial of the truth of challenges for cause by rotating triers:
Grant
,
    at paras. 18, 37, 41;
Murray
, at para. 53.

[36]

The enactment of ss. 640(2.1) and (2.2) did not alter the character of
    the pre-existing authority to exclude unsworn jurors during the trial of the
    truth of individual challenges for cause by rotating triers. An order for
    exclusion based on the exercise of the trial judges inherent jurisdiction does
    not issue as of right. Whether exclusion will be ordered involves the exercise
    of discretion by the presiding judge, a decision that will depend on the
    circumstances of each case:
Grant
, at para. 41;
Murray
, at para.
    53.

[37]

The amendments in ss. 640(2.1) and (2.2) do not authorize a trial judge
    simply to choose one method of trial of the truth of the challenges for cause
    rather than the other. Static triers may only be ordered upon the satisfaction
    of the requirements of s. 640(2.1) and (2.2). No application. No static triers.
    An unsuccessful application. No static triers. There is no inherent
    jurisdiction to choose or direct static triers. Default requires rotating
    triers:
Swite
, at paras. 28-30;
Noureddine
, at para. 38;
V.
    (W.)
, at para. 22.

[38]

An application by the accused is a necessary pre-condition to the
    operation of ss. 640(2.1) and (2.2). In assessing whether such an application
    has been brought, substance trumps form. The fact that the defence has not made
    a formal application under s. 640(2.1) is not determinative:
Grant
, at
    para. 51. A decision by the defence to choose static triers, in the face of a
    proposed dichotomy between static triers with the panel excluded and rotating
    triers with the panel included, has been held to amount to the functional
    equivalent of an application to exclude sworn and unsworn jurors under s.
    640(2.1):
Grant
, at paras. 50-51;
Murray
, at paras. 57-66.

[39]

Similarly, a desire to exclude prospective jurors during the challenge
    for cause process and satisfaction with properly-vetted static jurors has been
    found to satisfy the requirement that the accused bring an application:
R.
    v. Mansingh
, 2017 ONCA 68, at para. 12;
R. v. Kossyrine
, 2017 ONCA
    388, at paras. 19-21, 28.

The Effect of Errors in the Selection of Triers

[40]

Section 686(1)(b)(iv) permits appellate courts to dismiss appeals where
    procedural errors that lead to a loss of jurisdiction over the accused have
    occurred at trial, provided the Crown can demonstrate that the trial court had
    jurisdiction over the class of offence of which an appellant was convicted and
    that the error did not prejudice the appellant. Prejudice takes into account
    not only the impact of the error or irregularity on the verdict rendered at
    trial, but also its impact on the actual and apparent fairness of the trial
    process:
Noureddine
, at paras. 47-48, 62-64.

[41]

It has been held that where a jury has been selected by a challenge for
    cause procedure disavowed by an accused, thus depriving him or her of the
    option to invoke the method of selecting the composition of triers, s.
    686(1)(b)(iv) cannot preserve the verdict rendered at trial:
Noureddine
,
    at paras. 57, 68;
Swite
, at para. 54;
V. (W.)
, at para. 26. This
    is so because the court  in particular the jury  has not been properly
    constituted. And this is so because the process used to determine the truth of
    the challenge for cause directly contravenes the provisions of the
Criminal
    Code
.

The Principles Applied

[42]

For several reasons, I would give effect to this ground of appeal, set
    aside the convictions entered at trial and order a new trial on each count of
    which the appellant was convicted.

[43]

First, as we have already seen, the general or default rule about the
    trial of the truth of the challenges for cause based on lack of indifference on
    the part of prospective jurors is that the issue is determined by rotating
    triers. This method of trial of the challenge includes a judicial discretion to
    exclude prospective (unsworn) jurors from the courtroom while individual
    challenges are being decided by the rotating triers, provided sufficient reason
    is advanced to do so. This authority remains despite the enactment of ss.
    640(2.1) and (2.2). The trial judge was wrong to hold otherwise.

[44]

Second, trial of the truth of the challenge for cause by static triers,
    the method directed by the trial judge in this case, is only available where
    the accused applies to exclude all jurors, both sworn and unsworn, from the
    courtroom while individual challenges for cause proceed, and where the
    presiding judge is satisfied that such an exclusionary order is necessary to
    preserve the impartiality of the jurors.

[45]

In this case, defence counsel repeatedly told the trial judge that he
    was
not
applying under or invoking s. 640(2.1) of the
Criminal Code
.
    It follows ineluctably from the absence of any application, that the provisions
    of ss. 640(2.1) and (2.2), which alone permit the use of static triers, never
    became engaged. It necessarily follows from the absence of an application under
    s. 640(2.1) that no order could be made under that subsection. The absence of
    an order under s. 640(2.1) engages s. 640(2) which required the trial of the
    challenge for cause to be determined by rotating jurors.

[46]

Third, this is not a case in which it can be said, as the Crown argues,
    that what happened here was the functional equivalent of an application under
    s. 640(2.1), thus legitimizing the directed use of static triers.

[47]

The language used by defence counsel simply does not bear the
    interpretation advanced by the Crown. In addition to the express denial of an
    application under s. 640(2.1), defence counsel sought exclusion of the panel,
    a term that refers to prospective or unsworn jurors. Sworn jurors cannot fairly
    be characterized as members of the panel. They cease panel membership when
    selected and sworn or affirmed as jurors to try the case. Further, defence
    counsel made it abundantly clear that he grounded his claim for the exclusion
    of the jury panel during the trial of the truth of the individual challenges on
    the inherent jurisdiction of the trial judge to make such an order.

[48]

Fourth, the direction that static triers determine the truth of the
    challenges for cause contravenes the specific provisions of ss. 640(2.1) and
    (2.2) of the
Criminal Code
. Absent satisfaction of the conditions
    precedent in s. 640(2.1), the trial judge had no authority to order static
    triers under s. 640(2.2).

[49]

Finally, in accordance with the current state of the law concerning the
    reach of the procedural proviso in s. 686(1)(b)(iv), what occurred here cannot
    be salvaged.

[50]

The trial judges order denied the appellant the benefits of having the
    truth of the challenges for cause determined by rotating triers. What is more,
    this denial occurred in the face of unequivocal statutory language that
    required, among other things, an application by the accused before static
    triers could be ordered. This was an application that defence counsel
    repeatedly said was
not
being advanced. Expressly and repeatedly,
    counsel wanted rotating triers. Yet the trial judge forged ahead, despite the
    entreaties of defence counsel, without any inquiries of the trial Crown about
    her position and seemingly oblivious to the confining language of the enabling
    legislation.

CONCLUSION

[51]

For these reasons, I would allow the appeal, set aside the convictions
    and order a new trial on each offence of which the appellant was convicted.
    Since there was no appeal of the acquittals of first degree murder, the new
    trial should be held on a redrafted indictment charging two counts of second
    degree murder with the remaining counts unchanged.

Released: DW July 21, 2017

David Watt J.A.

I agree. H.S. LaForme J.A.

I agree. G.T. Trotter J.A.

[1]

The hearing of the appeal was bifurcated as a result of
    directions given by the appeal management judge. The panel decided to follow
    the procedure proposed by the appeal management judge in light of the potential
    impact of the error alleged on the verdicts rendered at trial.


WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)    Subject to
    subsection (2), the presiding judge or justice may make an order directing that
    any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)      any of the
    following offences;

(i)       an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)      two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)   In proceedings in
    respect of the offences referred to in paragraph (1)(a) or (b), the presiding
    judge or justice shall

(a)      at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)      on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)   In proceedings in
    respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)   An order made under
    this section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss.
    22,48; 2015, c. 13, s. 18..

486.6(1)    Every person
    who fails to comply with an order made under subsection 486.4(1), (2) or (3) or
    486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)   For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in
    any way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ismail, 2017 ONCA 597

DATE: 20170711

DOCKET: C63121

Weiler, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abdikhalik Ismail

Appellant

Erika Chozik, for the appellant

Michael Fawcett, for the respondent

Heard and released orally: July 7, 2017

On appeal from the sentence
    imposed on July 18 2016 by Justice George S. Gage of the Ontario Court of
    Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant received an effective sentence of twelve months plus three
    years probation for arson. He seeks leave to appeal and, if leave is granted,
    appeals the custodial portion of his sentence.

[2]

It is well established that a sentencing judge is required to take into
    account any collateral immigration consequences in determining a fair and
    proportionate sentence.

[3]

At the time of sentencing no one, including the appellant himself, was
    aware that he was not a Canadian citizen. Accordingly, it falls this court to
    impose a fit sentence taking the personal circumstances of the appellant into
    account. The offence to which the appellant pled guilty, was setting a fire to
    a blanket in the group home where he was residing. There was minimal property
    damage and the group home has accepted him back and he has made great progress.

[4]

A sentence that would see this appellant  a young man of 19 at the time
    with special needs and his whole family and system of supports in Canada
    deported to a refugee camp in a country where he has no connection and no
    supports is in the circumstances unfit and warrants appellate intervention.

[5]

A sentence of six months less a day is a fit sentence having regard to
    the principles of sentencing, the moral blameworthiness of the offender and the
    seriousness of the offence. Accordingly for these reasons leave to appeal
    sentence is granted, the appeal is allowed, the sentence imposed is set aside
    and a sentence of six months less a day imposed. The appellant has already
    served that sentence.

K.M. Weiler J.A.

C.W. Hourigan J.A.

G. Pardu J.A.