In a recent wiretap trial I concluded in Edmonton Justice Brian R. Burrows of the Court of Queen’s Bench decided a trilogy of motions excluding voice identification evidence obtained by the police in breach of the defendant’s right to counsel and right to timely disclosure.

In the first ruling reported as R. v. Aldaba, 2014 ABQB 291 the prosecution sought to introduce the testimony of a police officer who was present when the defendant was arrested at his place of employment in Richmond, B.C. The police officer had worked in the wire room during the investigation. The voice identification evidence was obtained after the arrest during a drive to the RCMP detachment. It was thus obtained in breach of the defendant’s right to counsel under Charter s. 10(b). The Crown Attorney conceded that the police have a duty to “hold off” eliciting evidence from detained persons until they have an opportunity to talk to a lawyer.

The difficult question was whether a discussion between the police officer and the defendant following consultation with counsel was part of the same transaction. We argued that the breach of the defendant’s right to counsel near the beginning of the interaction with the police infected the entire transaction. Justice Burrows agreed. He concluded, at para. 28, that the voice identification evidence was temporally, contextually and to some extent causally linked to the breach of the right to counsel.

In a second ruling reported as R. v. Aldaba, 2014 ABQB 293 the state sought to call testimony from the same police officer who was present at a subsequent arrest of the defendant at his residence in Richmond, B.C. The police officer was within ear shot of the defendant when he was arrested by another police officer who advised him of his right to counsel. The exchange began when the arresting constable served the defendant with a warrant to search his house. The defendant said: “I would like to speak to a lawyer though first.” Conversation then followed about members of the defendant’s family who would be returning home later. Justice Burrows concluded, at para. 13, that the obligation not to elicit evidence began at the moment of arrest. Therefore all of the police officer’s exposure to the defendant’s voice occurred during the hold off period. The evidence was excluded.

In the third ruling reported as R. v. Aldaba, 2014 ABQB 320 the prosecution provided late disclosure of voice identification evidence from a detective with the Vancouver Police Department who was present when the defendant was interviewed as a victim in an unrelated assault two years previously. We argued that the defendant’s disclosure rights under Charter s. 7 were breached. Although this evidence raised compelling questions about the right against self-incrimination and abuse of process we sought exclusion under Charter s. 24(1) as the preferred remedy. Justice Burrows ruled, at para. 33, that it would have serious implications for the integrity of the justice system if the trial was adjourned to accommodate the late evidence. The motion was granted.

The first two of these rulings reaffirm the principle in R. v. Rendon, [1997] O.J. No. 5505 (Ont. Gen. Div.) that the process of providing information to detained persons about their constitutional rights cannot be used by the police as an investigative technique.