Case: R. v. Fountain, 2017 ONCA 596 (CanLII)

Keywords: Right to Counsel Without Delay; Prosper Warning; Exclusion of Evidence


General Overview

The Appellant, Mr. Jason Fountain appeals against his convictions for armed robbery, forcible confinement, and breaking/entering to commit an indictable offence. His grounds of appeal include arguments that the investigating officer should have given him a “Prosper warning”, that the Trial Judge erred in finding his s. 10(b) rights were not breached, and that the Trial Judge erred in failing to exclude statements he made prior to speaking with a lawyer.

The Court of Appeal agrees Mr. Fountain’s s. 10(b) rights were violated by the investigating officer. Paciocco J.A. finds that a “Prosper warning” is required, that the Trial Judge erred in finding Mr. Fountain had waived his right to consult counsel without delay, and that the Trial Judge erred in finding a police caution would be an adequate substitute for the warning. On the 24(2) analysis, the Court of Appeal determines Mr. Fountain’s statements, the “lynch-pin” of the Crown’s case, must be excluded. The Court of Appeal therefore quashes Mr. Fountain’s convictions and enters acquittals.

Facts Relevant to the Court of Appeal’s s. 10(b) Analysis

Mr. Fountain is arrested by Detective Paolo Dellipizzi at 1:31PM. After being read his rights to counsel, he immediately asks his girlfriend to call his lawyer. At 2:10PM, Mr. Fountain arrives at the police station, identifies Mr. Richard Aitken as his lawyer, and provides a phone number to assist Detective Dellipizzi in facilitating his right to counsel.

Detective Dellipizzi first attempts to reach Mr. Aitken by at 2:35PM, but is told Mr. Aitken is in Peterborough. At 5:03PM Detective Dellipizzi visits Mr. Fountain in his cell to inform him Mr. Aitken was out of town on another matter. At 6:16PM Detective Dellipizzi calls Mr. Aitken’s Oshawa office and leaves a message for Mr. Aitken to call. At 6:57PM Detective Dellipizzi calls Mr. Fountain’s girlfriend, who advises him a lawyer would “be there in the morning”.

At 8:13PM (nearly 6.5 hours after his arrest), Mr. Fountain is brought to an interview room. Detective Dellipizzi explains efforts to reach Mr. Aitken have failed but that a lawyer would be present the next day at Mr. Fountain’s bail hearing. Without “in any way indicating that it would be problematic for Mr. Fountain to wait to speak to his lawyer” (see at para. 35), Detective Dellipizzi offers Mr. Fountain a binary choice between waiting or having someone called through Legal Aid. Mr. Fountain first suggests he will wait until morning to speak with counsel, but following persistent pressure from the Detective, he requests a call with Legal Aid. (A detailed summary of the exchange between Detective Dellipizzi and Mr. Fountain is provided at paras. 19-23).


The Prosper warning, developed in R. v. Prosper, 1994 CanLII 65 (SCC) and R. v. Smith, 1999 CanLII 3713 (ON CA), is meant to ensure detainees understand precisely what they are giving up when abandoning an attempt to get legal advice without delay. In Prosper, at p. 274, Lamer C.J. described the required Prosper warning and its legal triggers as follows:

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.

The Court of Appeal noted that, while the warning is not required in all cases, it is required in circumstances where ‘“a detainee has asserted the right [to counsel] and then apparently change[s] his mind’ after reasonable efforts to contact counsel have been frustrated”. The significance of the Prosper warning becomes more apparent when considering that the burden of establishing waiver of the detainee’s s. 10(b) rights is always on the Crown. The requirement is to prove “clear, free and voluntary change of mind made by someone who knew what they were giving up”. (See para. 27).

For the Court of Appeal, whenever 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”. (See para. 28).

On the other hand, where a detainee is not reasonably diligent in exercising the right to counsel, the duty to hold off may be suspended and the police may question the detainee (see R. v. Bartle, 1994 CanLII 64 (SCC) at p. 192; R. v. Brydges, 1990 CanLII 123 (SCC), at p. 204). The obligation on the police to make efforts to facilitate contact with counsel may also be suspended in the absence of reasonable diligence (R. v. Willier, 2010 SCC 37 (CanLII) at paras. 43-44). For the Court of Appeal, 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.” (See para. 30).

In the circumstances of the present case, however, the Court of Appeal found Mr. Fountain had been reasonably diligent. The exchange between Detective Dellipizzi and Mr. Fountain (including the use of a “standard caution” during the interview) was insufficient. The evidence of the conversation demonstrated Mr. Fountain really had “…no idea what he was giving up by choosing to wait until the next day to speak to his lawyer”. (See para. 54). As such, the Crown could not meet its burden to show Mr. Fountain was not reasonably diligent and had waived his rights.

On the s. 24(2) analysis, the Court of Appeal justified its decision to exclude the evidence obtained by Detective Dellipizzi as follows:

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. Fountain’s statements would do more harm to the long-term repute of the administration of justice than the exclusion of his statements. (See para. 71).

Counsel for the Appellant: Delmar Doucette (Doucette Santoro Furgiuele, Toronto)

Counsel for the Respondent: Rachel Young (Ministry of the Attorney General, Toronto)

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