Decision Content
R. v. Sabourine, 2022 NWTTC 02
Date: 2022 02 18
File: T-1-CR-2020-001674
IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES
BETWEEN:
HER MAJESTY THE QUEEN
- and -
WAYNE PATRICK SABOURINE
REASONS FOR DECISION
of the
HONOURABLE JUDGE GARTH MALAKOE
| Heard at: |
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Behchokǫ̀ and Yellowknife, Northwest Territories |
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| Date of Decision: |
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February 18, 2022 |
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| Date of Hearing: |
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April 30, 2021 and February 16, 2022 |
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| Counsel for the Accused: |
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Lyndon Stanzell |
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| Counsel for the Crown: |
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Andreas Kuntz, Madison Walls |
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[Sections 9 and 10(b) Charter Application]
R. v. Sabourine, 2022 NWTTC 02
Date: 2022 02 18
File: T-1-CR-2020-001674
IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES
BETWEEN:
HER MAJESTY THE QUEEN
- and -
WAYNE PATRICK SABOURINE
A. INTRODUCTION
A.1 Introduction
[1] Wayne Sabourine is charged with assaulting his intimate partner. He claims that after his arrest, his Charter rights to consult with a lawyer and not to be arbitrarily detained were breached. As a result of the breaches, he seeks that the evidence of the assault be excluded from the trial. This decision is in response to Mr. Sabourine’s application.
A.2 Background
[2] At approximately 03h33 on Sunday, August 16, 2020, Cst. Patrick Carriere of the Behchokǫ RCMP arrested the accused, Wayne Sabourine. The accused was arrested after Cst. Carriere observed what he believed to be an assault by Mr. Sabourine on his intimate partner near the front steps to the couple’s residence in Behchokǫ, NT.
[3] Cst. Carriere read Mr. Sabourine his section 10(a) and 10(b) Charter rights. Mr. Sabourine expressed his desire to speak to a lawyer. Mr. Sabourine was lodged in cells at approximately 04h00.
[4] No attempt was made to contact a lawyer for Mr. Sabourine until 07h48. By this time, Cst. Carriere was off shift and had gone home. Cst. Sean Thomson came on shift at 07h15. At 07h48, Cst. Thomson made three attempts to contact legal aid. These attempts were unsuccessful. At 09h02, Cst. Thomson made an additional two unsuccessful attempts to contact legal aid for the accused.
[5] Cst. Carriere had gone off shift at approximately 07h15 and came back on shift at 18h00. He obtained an audio recorded statement from the complainant at 18h25. At 19h18, Cst. Carriere returned to the Behchokǫ RCMP detachment and rearrested the accused for an additional charge. Cst. Carriere asked the accused if he wished to speak to a lawyer. The accused responded, “Ya, sure”. Cst. Carriere made unsuccessful attempts to contact legal aid at 19h20 and 19h34. At 19h42, the accused was released on a police undertaking with conditions.
[6] Mr. Sabourine was held in cells on August 16, 2020 from 04h00 to 19h42, close to 16 hours. After he was arrested at 03h33, no attempt was made to contact a lawyer for him until 07h48, four hours later. After the further attempts at 09h02, no additional attempts were made during the following 10 hours.
[7] Section 10(b) of the Charter states:
10. Everyone has the right on arrest or detention
(b) to retain and instruct counsel without delay and to be informed of that right
[8] Section 9 of the Charter states:
9. Everyone has the right not to be arbitrarily detained or imprisoned.
[9] The accused asserts that he was not given the opportunity to contact a lawyer without delay as required under section 10(b) of the Charter and that he was arbitrarily detained when he was held for 16 hours. He claims that the Court should direct a stay of proceedings or exclude the evidence of Cst. Carriere regarding the alleged assault.
[10] The Crown concedes that there was a breach of Mr. Sabourine’s right to counsel. The Crown denies that there was an arbitrary detention. The Crown submits that there is no justification to exclude evidence or to direct a stay of proceedings. If a remedy is necessary, according to the Crown, Mr. Sabourine’s sentence can be reduced if he is found guilty of the assault.
[11] For the reasons stated below in this Decision, I find that Mr. Sabourine’s rights under ss. 9 and 10(b) of the Charter were breached. Pursuant to s. 24(2) of the Charter, the evidence of Cst. Carriere regarding the alleged assault is excluded.
A.3 Conduct of the Trial
[12] At the beginning of the trial in Behchokǫ on April 30, 2021, it was agreed that the trial would proceed by way of a blended voir dire. The two police officers, Cst. Patrick Carriere and Cst. Sean Thomson would testify. The Crown would close its case on the voir dire. The defence would decide whether or not to call evidence on the voir dire. Defence and Crown would make submissions on the voir dire. The Court would make a decision with respect to the Charter breaches and remedy. If the trial continued, the Crown and defence agreed to have the evidence adduced at the voir dire applied to the trial and defence would have the option of calling evidence.
[13] We finished the evidence of Cst. Carriere on April 30, 2021 in Behchokǫ. As a result of disruptions caused by the Covid-19 pandemic, the trial did not resume until February 16, 2022 in Yellowknife. Cst. Thomson testified and the voir dire was concluded without the accused calling evidence.
A.4 The Issues
[14] For the purposes of the voir dire, the Court must decide the following:
(a) Was there a breach of section 10(b)?
(b) Was there a breach of section 9?
(c) If there was one or two Charter breaches, what is the appropriate remedy?
[15] In this decision, any reference to a section number in the absence of the name of the legislation is a reference to the Criminal Code, R.S.C. 1985, c. C-46, as amended.
B. SECTION 10(b) CHARTER
B.1 Evidence
[16] Cst. Carriere arrested the accused around 03h30; spoke to the complainant for about 10 to 20 minutes; and read Mr. Sabourine his rights to counsel and police caution at 03h55. In response to whether he wanted to contact a lawyer, Mr. Sabourine said, “Yes sir.” Cst. Carriere then asked Mr. Sabourine who he wanted to talk to. The accused responded that he wanted to talk to “any lawyer they talk to in the community.”
[17] When asked during his testimony, what the words “without delay” mean in the context of section 10(b) of the Charter, Cst. Carriere responded “as soon as practicable.”
[18] Cst. Carriere testified that between 04h00, when he returned to the detachment with Mr. Sabourine and lodged him in cells and 07h15, when he went off shift, he was occupied with preparing documents for two show cause hearings that were to be held later in the morning.
[19] Cst. Thomson testified that the RCMP in Behchokǫ have two telephone numbers for legal aid. The main number is a toll free number; the other is an alternate number with an area code of 250. In all of his attempts to contact legal aid, he heard a recording and then a busy signal. Cst. Thomson also testified that, in the telephone room at the detachment, there was a list of lawyers in the Northwest Territories with their office number and in some cases, a cell phone number. He did not try any of these telephone numbers because it was his experience that there would be no answer at the office numbers outside of business hours and the lawyers would not answer their cell phones.
[20] Cst Thomson also testified that after his attempts to contact legal aid at 09h02, he made no further attempts because he was too busy with his other policing duties. He did not consider calling in another officer to assist until Cst. Olafson was called in at 15h30, in advance of Cst. Olafson’s normal shift start time of 18h00.
B.2 Analysis
[21] If a detained accused expresses his desire to speak to counsel, the accused must be provided with that opportunity immediately. As stated in R. v. Rover, [2018] O.J. No. 4646:
24 Section 10(b) of the Charter guarantees to anyone arrested or detained the right “to retain and instruct counsel without delay and to be informed of that right” (emphasis added).
25 Section 10(b) obliges the police to advise a detained person of the right to speak with counsel without delay and, if the detained person exercises that right, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 38, 42; R. v. Bartle, [1994] 3 S.C.R. 173, at pp. 191-92.
[22] The jurisprudence allows for specific circumstances which can justify some delay in providing a detainee access to counsel. These circumstances relate to police safety, public safety or the preservation of evidence. These circumstances were not present in the situation of Mr. Sabourine.
[23] An accused who is detained and especially one who is put in cells is completely under the control of the state. A conversation with a lawyer may be the only way that person knows what to expect as far as how he will be treated by the police and what his legal rights are. To deny him the opportunity to speak to a lawyer is to leave him in a state of anxiety and uncertainty.
[24] As stated in R. v. Bartle, [1994] 3 S.C.R. 173:
16 The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfil those obligations: R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-43. This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself. Accordingly, a person who is “detained” within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty: Brydges, at p. 206; R. v. Hebert, [1990] 2 S.C.R. 151, at pp. 176-77; and Prosper. Under s. 10(b), a detainee is entitled as of right to seek such legal advice “without delay” and upon request. As this Court suggested in Clarkson v. The Queen, [1986] 1 S.C.R. 383, at p. 394, the right to counsel protected by s. 10(b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process.
[25] During the 16 hours that he was in custody, the accused’s right to have contact with a lawyer was in the exclusive control of Cst. Patrick Carriere and Cst. Sean Thomson. But for the two sets of attempts by Cst. Thomson at 07h48 and 09h02 and the one set of attempts by Cst. Carriere at around 19h20, the officers made the decision that their other policing duties took precedence over having the accused speak to a lawyer. For over three hours prior to 07h15, Cst. Carriere worked on documents for two show cause hearings that would occur during the day shift. For 10 hours after 09h02, Cst. Thomson was occupied with the show cause hearings and then some serious criminal incidents which required police intervention or investigation.
[26] During their testimony, neither Cst. Carriere, nor Cst. Thomson gave the impression that the accused’s right to counsel was foremost in their minds. Rather, attempts to connect him with a lawyer seemed to be something that would be done only after other more important policing duties were completed. Although there might be an argument that being called to investigate an aggravated assault or a sexual assault could displace the right to counsel as being foremost in the officers’ minds, it is difficult to accept that such a fundamental right as the right to counsel can be displaced by the need to prepare documents for or participate in show cause hearings.
[27] If the right to counsel had been properly foremost in the officers’ minds, even in the event of emergent policing requirements, they would have sought assistance from others to implement the right to counsel. This was not done. If the right to counsel had been properly foremost in the officers’ mind, they would not have been so easily thwarted by a problem with the two legal aid telephone numbers. They would have tried alternate numbers for lawyers.
[28] By way of analogy, if the RCMP detachment building had caught on fire, I cannot imagine that Cst. Carriere would have not called the fire department or if he called them and received a busy signal, that he would not have tried alternate contact methods.
[29] The police officers’ approach to Mr. Sabourine’s section 10(b) Charter right can be characterized as an attitude of, “We will get around to it when we have nothing more important to do and if the two phone numbers do not work, we will try them again when we get a chance.” In my view, this demonstrates at best, casual indifference. At worse, if there were ongoing problems with the telephone numbers, which the officers were aware of and which they considered to an impediment to contacting counsel, then there was a systemic issue which seems to have been accepted and not addressed.
[30] Mr. Sabourine’s section 10(b) Charter right was breached in a significant way.
C. SECTION 9 CHARTER
C.1 Evidence
[31] At no time did Cst. Carriere testify that he intended to bring Mr. Sabourine before a Justice of the Peace for a release hearing. Rather, it appears that he always intended to release Mr. Sabourine on a police undertaking. Cst. Carriere stated that he did not release Mr. Sabourine before going off shift at 07h15 because he was concerned for the safety of the complainant; that the complainant was not in an emotional state to give a statement and that the accused needed some time to cool off.
[32] Cst. Carriere described Mr. Sabourine’s demeanour on arrest as “cooperative”. He said that there was some frustration in Mr. Sabourine’s voice. At the time of the incident, according to Cst. Carriere, the complainant was very emotional and had been drinking.
[33] Cst. Carriere did not give any instructions to anyone on the day shift to consider releasing Mr. Sabourine. To the contrary, he testified that he knew that no one would release Mr. Sabourine during the day shift and that Mr. Sabourine would only be released after Cst. Carriere came back on shift at 18h00 and after Cst. Carriere took a statement from the complainant.
C.2 Analysis
[34] Section 498 states:
498 (1) Subject to subsection (1.1), if a person has been arrested without warrant for an offence, other than one listed in section 469, and has not been taken before a justice or released from custody under any other provision of this Part, a peace officer shall, as soon as practicable, release the person, if,
(a) the peace officer intends to compel the person’s appearance by way of summons;
(b) the peace officer issues an appearance notice to the person; or
(c) the person gives an undertaking to the peace officer.
498 (1.1) The peace officer shall not release the person if the peace officer believes, on reasonable grounds,
(a) that is necessary in the public interest that the person be detained in custody or that the matter of their release form custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to:
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence,
(iii) prevent the continuation or repetition of the offence or the commission of anther offence, or
(iv) ensure the safety and security of any victim of or witness to the offence; or
(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.
[35] The jurisprudence describes a number of situations where detention can be considered arbitrary; however, it is clear that in the specific situation where the detention is subject to s. 498 but does not comply with the provisions of s. 498, it is arbitrary. As stated in R. v Kavanaugh, 2017 ONSC 637, at para. 31:
It is common ground that keeping a person in custody contrary to s. 498 constitutes arbitrary detention, and a breach of s. 9 of the Charter.
[36] It appears that Cst. Carriere was concerned with the possibility of the commission of a further offence, the security of the victim and the preservation of evidence. Hence, Mr. Sabourine needed time to cool down and the witness needed to sober up to give a statement. Cst. Carriere testified that when he left the detachment, he was physically and mentally exhausted. He did not give instructions to anyone to get a statement from the victim. He made no inquiries of Mr. Sabourine if, once released, he had anywhere to go besides the family home.
[37] Cst. Carriere’s concerns were initially valid. He was in the best position to determine whether Mr. Sabourine needed time to cool down or that the complainant needed time to sober up. It is reasonable that someone should have taken a statement from her so that evidence could be preserved. However, given that the offence occurred at 03h30, it is highly unlikely that Mr. Sabourine needed 16 hours to cool down; or that the complainant needed 16 hours to sober up. These are the types of evaluations under s. 498(1.1) that should be made by the police on an ongoing and continual basis. The failure to make ongoing and continual evaluations as to whether the accused is releasable under s. 498(1.) means that the accused will not be released as soon as practicable. These ongoing evaluations were not done in this case. Instead, Cst. Carriere left the detachment at 07h15 knowing that there was no possibility that Mr. Sabourine would be released until Cst. Carriere returned. He knew that Mr. Sabourine would sit in the cell until at least 18h00 when Cst. Carriere went back on shift.
[38] This cannot be reconciled with the requirement to release the accused “as soon as practicable” unless there is a concern with a requirement enumerated in s. 498(1.1). Mr. Sabourine’s detention was arbitrary because the length of detention was not the result of any ongoing objective evaluation on the part of Cst. Carriere or any other officer, but rather was tied to when Cst. Carriere was scheduled to be back on duty.
[39] This was explained in R. v. Al-Adhami, [2020] O.J. No. 4552:
52 This second aspect of arbitrary detention is a detention or arrest which, although originally lawful, continues on past the point it can be justified.
. . .
56 Since the events at issue in this case, Parliament has merged the imperatives of police release with that of judicial release. The police obligation to release is now all the more emphatic. Section 493.1 of the Criminal Code reads:
493.1 Principle of restraint
In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) or 515(10), as the case may be. (Emphasis Added)
[40] To be clear, this cannot be described as a situation where the exigencies of the policing duties of Cst. Thomson and the dayshift took priority over dealing with Mr. Sabourine. There certainly will be situations where the immediate intervention in a sexual assault or an aggravated assault take priority over releasing an accused “as soon as practicable.” That is not what happened with Mr. Sabourine. When Cst. Carriere left the detachment at 07h15, he did not know how busy the day shift was going to be. He did not tell another officer to release Mr. Sabourine “as soon as practicable.” Instead, he left at 07h15 knowing that no one would make any efforts to release Mr. Sabourine until he came back after 18h00. Had Cst. Carriere given the instructions to release Mr. Sabourine as soon as practicable and had Mr. Sabourine’s release been delayed by urgent policing requirements, my analysis of whether this detention was arbitrary could very well have been different.
D. REMEDY
[41] Given the breaches of ss. 9 and 10(b) of the Charter, there are three possible remedies:
(a) A reduction in sentence, if Mr. Sabourine is convicted after trial;
(b) An exclusion of the evidence of Cst. Carriere regarding his observation of the alleged assault pursuant to section 24(2) of the Charter; or
(c) A stay of proceedings pursuant to section 24(1) of the Charter.
[42] The failure to implement Mr. Sabourine’s right to counsel and the arbitrariness of his period of detention indicate either a lack of understanding by the two officers of the importance and the substance of these two Charter rights; or alternatively, an indifference to them. Whatever the reasons for these breaches, the Court has to send a message that the lack of understanding or indifference cannot continue. In my view, a reduction in Mr. Sabourine’s sentence, should one be imposed, does not carry that denunciatory message.
[43] The only appropriate remedy is an exclusion of evidence or a stay of proceedings. Although, either would be appropriate in this situation, I have chosen to exclude the evidence of Cst. Carriere. Given that the Crown has closed its case, this would exclude the only evidence of the alleged assault.
[44] Section 24 of the Charter states:
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[45] In order to consider that the evidence of Cst. Carriere regarding the alleged assault can be excluded, s. 24(2) requires that this be evidence that was “obtained in a manner that infringed or denied” Mr. Sabourine’s section 9 and 10(b) Charter rights. The evidence of Cst. Carriere consists of his observations of the interaction of the accused and his intimate partner around 03h30. It is obvious that these observations occurred before Mr. Sabourine’s arrest and the subsequent denial of his right to counsel and his arbitrary detention. This is not a situation where the denial of a Charter right results in the obtaining of evidence, such as, for example, in an illegal search.
[46] The Ontario Court of Appeal in R. v. Edwards (appeal by Pino), [2016] O.J. No. 2656 gave the following direction:
72 Based on the case law, the following considerations should guide a court’s approach to the “obtained in a manner” requirement in s. 24(2):
• The approach should be generous, consistent with the purpose of s. 24(2).
• The court should consider the entire “chain of events” between the accused and the police.
• The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct.
• The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.
• But the connection cannot be either too tenuous or too remote.
[47] The connection between the evidence and Cst. Carriere is as follows. It was Cst. Carriere who arrested the accused as a result of Cst. Carriere’s observations of the interaction between the accused and his intimate partner. It was Cst. Carriere who read Mr. Sabourine his Charter rights. It was Cst. Carriere who denied Mr. Sabourine his right to counsel until he went off shift at 07h15. It was Cst. Carriere who ensured that Mr. Sabourine was held in cells until he was released at 19h42.
[48] Evidence that has a casual, temporal or contextual relation to the Charter breaches is considered to be “obtained in a manner” that breaches the Charter. In this instance, there is both a temporal and contextual relationship. The Charter breaches both occurred during the same continuous period of time, beginning with Cst. Carriere’s observations and ending with Mr. Sabourine’s release 16 hours later. In addition to the temporal connection, this transaction also establishes the contextual connection given Cst. Carriere’s participation in all aspects.
[49] The Supreme Court of Canada in R. v. Grant, 2009 SCC 32, set out the three factors which must be considered in determining whether or not the admission of evidence in the proceedings would bring the administration of justice into disrepute. These factors are:
(a) The seriousness of the Charter-infringing state conduct;
(b) The impact of the Charter breach on the Charter-protected interests of the individual; and
(c) Society’s interest in adjudication of the case on its merits.
[50] With respect to the seriousness of the Charter breach, I have already described the importance of the right to counsel and the right not to be arbitrarily detained. It is acknowledged that both of the police officers who testified were very busy on August 16, 2020. At one level, they should be commended for the hours that they worked doing difficult tasks to the point of physical and mental exhaustion. It cannot be forgotten, however, that these same two officers had the responsibility for ensuring that Mr. Sabourine was given his right to speak to a lawyer “without delay” and that he was released “as soon as practicable.” To put it simply, these rights were put aside while the officers attended to other policing tasks. As a result of this putting aside of Mr. Sabourine’s rights, no one attempted to connect Mr. Sabourine with a lawyer until over three hours after his arrest and he never did speak to a lawyer while he was detained. As a result of this putting aside of Mr. Sabourine’s rights, he was held in custody for a period of time which arbitrarily corresponded to the work shift of Cst. Carriere.
[51] With respect to the impact of the Charter breaches, it is trite to say that both the s. 10(b) and the s. 9 Charter rights are fundamental rights. Mr. Sabourine was not given a chance to speak to a lawyer to find out what his legal rights were, how to interact with the police and to find out how long he would be held. During the 10¾ hours from 07h15 to 18h00, he was held in cells at the mercy of Cst. Carriere’s work schedule since no one else was in a position to release him.
[52] With respect to the evidence that is sought to be excluded, it is not real evidence, the value of which cannot be disputed. It is the testimony of Cst. Carriere, who observed the interaction from 50 metres away. This evidence is not corroborated in any manner; however, it is the only evidence provided by the Crown of an assault. Clearly, society has an interest in having the adjudication of an offence as serious as intimate partner violence.
[53] Having balanced these factors, I am of the view that, having regard to all the circumstances, the admission of the evidence of Cst. Carriere regarding the assault would bring the administration of justice into dispute and therefore, this evidence is excluded.
[54] As I stated earlier, had I not excluded this evidence under section 24(2) of the Charter, I would have directed a stay of proceedings under section 24(1) of the Charter. In my view, the three part test for a stay of proceedings as set out in R. v. Babos, 2014 SCC 16 has been satisfied. My choice as between these two remedies is based primarily on the fact that the evidence of Cst. Carriere is the only evidence of an assault and was obtained in a manner that breached Mr. Sabourine’s Charter rights as indicated above. I recognize that both of these remedies determine the outcome of the charge against Mr. Sabourine; however, it is the long-term repute of the administration of justice that must be preserved.
E. CONCLUSION
[55] For the reasons stated, I find that Mr. Sabourine’s rights under ss. 9 and 10(b) of the Charter were breached. As a result, the evidence consisting of Cst. Carriere’s observations of the alleged assault is excluded.
[56] The Crown has indicated that it will call no further evidence. If the defence calls no evidence, the Court will be prepared to enter an acquittal.
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Garth Malakoe T.C.J. |
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| Dated at Yellowknife, Northwest Territories, this 18th day of February, 2022. |
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R. v. Sabourine, 2022 NWTTC 02
Date: 2022 02 18
File: T-1-CR-2020-001674
IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES
BETWEEN:
HER MAJESTY THE QUEEN
- and -
WAYNE PATRICK SABOURINE
REASONS FOR DECISION
of the
HONOURABLE JUDGE GARTH MALAKOE
[Sections 9 and 10(b) Charter Application]