Counsel right not re-triggered by confession video

Mike Novakowski
February 24, 2011
By Mike Novakowski
Playing a video clip from an undercover sting to an arrestee did not re-trigger the right to counsel, nor was it a new (non-routine) procedure such that a further consultation with a lawyer was required. In R. v. Ashmore, 2011 BCCA 18 police obtained a wiretap authorization and began an undercover operation following a murder. An undercover officer befriended Ashmore in a “Mr. Big” style operation. Ashmore told him how he strangled the victim, killing him at the request of the victim’s common law spouse.

Playing a video clip from an undercover sting to an arrestee did not re-trigger the right to counsel, nor was it a new (non-routine) procedure such that a further consultation with a lawyer was required.

In R. v. Ashmore, 2011 BCCA 18 police obtained a wiretap authorization and began an undercover operation following a murder. An undercover officer befriended Ashmore in a “Mr. Big” style operation. Ashmore told him how he strangled the victim, killing him at the request of the victim’s common law spouse.

Ashmore and three others were arrested at about 3 pm on a Friday. He was told that first degree murder carried the possibility of life imprisonment, informed of his right to remain silent, retain and instruct counsel in private without delay and that he could call any lawyer he chose. He was also told of a a 24-hour telephone number he could call to speak to a legal aid duty counsel in private and that he may be monitored by audio-video surveillance while in custody, except while speaking with counsel in private.

Ashmore told officers he didn’t have a lawyer and asked to speak with a legal aid duty counsel. He was taken to police headquarters, processed and booked in to the cellblock area, then taken to a private telephone room. An officer confirmed he wanted counsel, called the 24-hour number and left a message asking for a return call.

A lawyer returned the call, was told Ashmore had been arrested for first degree murder and spoke to him privately for about three minutes. Ashmore indicated he was satisfied. He was held overnight and participated Saturday morning in a teleconference hearing before a judicial justice of the peace, who ordered him detained in custody (in accordance with s. 515(11) of the Criminal Code) and to be conveyed “to a prison in the Province of British Columbia being either a federal institution, a provincial institution or a police lockup.” Ashmore was to appear before a provincial court judge on Monday.

Following the hearing, Ashmore was returned to his cell and was interviewed for two hours at 1:15 PM that day. Police played a video clip of him admitting to the undercover officer that he participated in the murder. Ashmore then confessed his involvement, describing in detail his role and that of the other parties. At the end of the interview, he agreed to participate in a reenactment and was returned to his cell.

About three hours later, Ashmore was taken to a different interview room for a re-enactment. He was advised that participating was up to him and that he had the right to consult with a lawyer. He asked to speak with his girlfriend’s lawyer and was told those arrangements could be made.

“Let’s just do the re-enactment,” he said. The officer again advised that his participation was “strictly voluntary,” confirming he was “sure” he did not want to speak with a lawyer. He also made sure Ashmore knew he had a right to consult a lawyer before participating, wasn’t obliged to say anything and anything he did say may be given in evidence.

Using a drawing of the apartment, Ashmore described how events unfolded. Further reenactments then proceeded in three stages: (1) furniture at another police station was arranged to replicate the room in the apartment where the murder occurred. Ashmore demonstrated how the victim was killed and his body removed from the apartment; (2) at the apartment building where the murder occurred Ashmore demonstrated how the body was taken down a stairwell and placed in a vehicle; and (3) where the body was dumped Ashmore demonstrated how he disposed of it.

On the way back to police headquarters the officer suggested Ashmore call his mother, which he did the following day (Mother’s Day). Ashmore admitted his involvement in the murder during the conversation, which was recorded.

At trial in BC Supreme Court a jury convicted Ashmore of first degree murder. He did not deny participating but argued it wasn’t planned and deliberate. His statements and re-enactments were admitted. He appealed to the BC Court of Appeal, challenging their admissibility.

He argued, among other grounds, that he should have been given further s. 10(b) advice before being shown the video clip of his statement and again before being asked to participate in the re-enactment. As well, he contended that after the JJP hearing he was in the custody of the court and police could no longer interview him without again giving him s. 10(b) rights.

h2. Right to counsel

The BC Court of Appeal concluded police were not required to give Ashmore another opportunity to contact counsel before confronting him with the video or asking him to participate in the re-enactment. Neither event re-triggered the informational and implementational components of s. 10(b) because they were not new (nonroutine) procedures. When the officer played the video he “did no more than accurately disclose evidence the police had already gathered,” said Justice Frankel. “The police practice of disclosing information, be it true or false, to encourage a detainee to talk does not, without more, re-trigger s. 10(b) rights.”

As for the re-enactment, Ashmore was re-advised of his counsel right. Even if he hadn’t been, a re-enactment is not “a new (non-routine) procedure that falls outside of the expectations of counsel advising a detainee.

“A re-enactment is nothing more than a statement by conduct. It involves a person demonstrating, rather than simply recounting, how events unfolded. It can hardly be said, for example, that (Ashmore’s) response to ‘Tell me how you strangled Mr. Sabine’ is of a different character than his response to ‘Show me how you strangled Mr. Sabine’.”

Furthermore, “even if a re-enactment could be considered to be a new procedure, a request to participate in one wasn’t a matter on which (the accused) required further legal advice,” the court said. “Although (the accused’s lawyer) did not specifically use the word ‘re-enactment’, he did counsel (the accused) against participating in a line-up or a lie detector test and to be aware that the police might ask him to participate in some form of ‘test’ as a ruse to get him to talk.

Given that advice and the strong general admonition (the accused) received with respect to providing police information, he was in a position to be able to make a meaningful choice about whether to participate in the re-enactment.”

Ashmore also submitted that once an arrestee is remanded to the custody and supervision of the court and detained, police must re-advise him of his rights in accordance with s. 10(b) of the Charter before interviewing him. The court rejected this argument, finding that a remand order did not have the effect of shielding an accused from otherwise lawful investigative action.

“A remand order, by itself, neither confers new constitutional rights on a detainee nor imposes limitations on what lawful investigative techniques may be used by the police,” said Frankel, adding:

(W)hen (the accused) was interviewed at police headquarters... he was lawfully detained, as the warrant of committal authorized his detention at “a police lockup.” The fact that (the accused) was questioned in interview rooms rather than in a cell is, in my opinion, of no consequence. In the circumstances of this case, it would be drawing too fine a distinction to say that the lawfulness of a detention is vitiated because a detainee is interviewed in another part of the building in which he is being lawfully held or, to use the other example... participates in an identification parade (i.e., a line-up) that takes place outside the cellblock area of a lockup or provincial jail.

As (the accused’s) position vis-à-vis the investigation was the same before and after the remand order was made, the police were not required to re-advise him of his rights under s. 10(b) of the Charter (paras. 104-105).

There was no material change in the accused’s situation after his consultation with a lawyer such that a new s. 10(b) warning be given.

h2. Arbitrary detention during re-enactments

The court found police did breach the accused’s s. 9 right to be free from arbitrary detention when he was moved from police headquarters and participated in the re-enactments.

Even though it was okay for police to move him from cells to another part of the same building for an interview, moving him to the other locations was problematic:

The warrant of committal authorized the police to convey (the accused) to “a prison in the Province of British Columbia being either a federal institution, a provincial institution or a police lockup and deliver him/her to the keeper thereof.” It did not give the police the unilateral right to remove (the accused) from one of those places and keep him in their custody elsewhere for investigative purposes.

The Crown hasn’t referred to anything that would validate their actions. Accordingly, when (the accused) was taken from police headquarters solely for the purposes of the re-enactment, he was being unlawfully detained. Such a detention is constitutionally “arbitrary” (para. 106).

Although there was a temporal and tactical connection between Ashmore’s arbitrary detention and his participation in the re-enactment, the evidence was admitted nonetheless under s. 24(2), as was Ashmore’s telephone conversation with his mother, which was also temporally and tactically connected to his participation in the re-enactment. The admission would best serve the long-term interests of the administration of justice, the court ruled.

Despite these warnings, the accused still confessed.

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