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Sex assault case highlights right to counsel

|Written By Robert Todd

The Ontario Court of Appeal has issued a succinct review of an accused’s right to counsel in a decision involving a disturbing series of sexual assaults on developmentally handicapped persons.

The Aug. 10 decision in R v. J.W.C. flows from a conviction in the Ontario Superior Court for 14 sexual offences against eight complainants. The accused was a residential counselor at group homes for individuals with special needs, and suffered from clinical depression.

The case was “unusual,” in the words of appeal court Justice Marc Rosenberg, as the accused was never the target of complaints regarding his behaviour — the prosecution’s case relied upon a statement J.W.C., then 33 years old, offered to police after contacting them. He and his lawyers claimed that his right to counsel under s. 10(b) of the Charter had been violated, as the trial judge should have considered his mental condition before admitting his statement to police.

The appeal court noted that the trial judge’s approach to the right to counsel focused on whether J.W.C. was afforded enough time to decide whether to exercise his right to counsel, which was determined in the affirmative. The judge noted that police read him his right to counsel on the way to the police station, and that he had 12 minutes between his first and second cautions. Also, the police interview began with open-ended questions, and “the appellant was not immediately confronted in a manner that would have inhibited him from exercising his right to counsel,” wrote Rosenberg.

“I am not satisfied that the appellant has shown that the trial judge’s conclusion was unreasonable,” he later added.

Yet J.W.C.’s appeal counsel Timothy Breen argued at the appeal court that his client’s response, “I don’t know,” meant that police were required to secure a clear waiver from the appellant. It was also emphasized that J.W.C. was suffering from depression and had just voluntarily removed himself from a psychiatric facility.

The appeal court pointed to recent Supreme Court of Canada jurisprudence on the right to counsel, namely the Sinclair trilogy of cases. Those cases, noted the Ontario Court of Appeal, highlight two considerations. The first is an informational component, which determines what police must communicate to the detainee about the right to consult counsel. This aspect was not at issue in J.W.C.

The second component relates to implementation. It calls for police to offer the detainee a chance to exercise the right to counsel. “The courts have held that this second component implies that there is a duty on the police to hold off questioning until the detainee has had a reasonable opportunity to consult with counsel,” wrote Rosenberg. While this was a point of contention in J.W.C., the appeal court opted against interfering with the trial judge’s ruling.

The court also canvassed the obligation for police to issue a second invitation for a detainee to consult counsel. When J.W.C. was offered this opportunity, he replied, “Ah, I don’t know.” An officer responded by clarifying that he understood his right to consult counsel.

“Even taking into account the appellant’s psychiatric condition as was appropriate, there is nothing to indicate that the appellant did not understand that he had the right to immediately consult counsel,” wrote Rosenberg.


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