From the Kingston Whig-Standard Website:
Sisters charged in the summer of 2007 with the knife-point robbery of a Modern Taxi driver have had the charges against them withdrawn by the Crown.
The turnaround happened after defence lawyer Lawrence Silver convinced a judge of the Ontario Court of Justice that Jennifer Deano's constitutional right to legal counsel was violated when she was interviewed in July 2007, by Kingston Police Det. Brian J. Pete. Justice Judith Beaman ordered the exclusion of a statement Deano made during that interview which connected her to the locale where the cabby picked up his assailants.
Beaman was told that the Modern cab driver was dispatched to a call at Gordon Grocery, a store on the corner of Macauley and Montreal streets, around 5 a.m. on Dec. 22. There, he picked up two women bundled in parkas and drove them to the rear of 87 Compton St., where one of them pulled a knife, held it to his throat and demanded his cash.
The cab driver, in the statement he gave to police immediately afterwards, said he handed over about $70 from his pocket and the other female then reached across the front seat and helped herself to his loonies and toonies before they both fled.
A neighbour in the area, who owned a scanner and happened to be looking out a window at the time, saw two people in parkas run to the front of 87 Compton, where they appeared to try to buzz someone in the building. When they weren't successful, they took off running. At the same time, the man learned from his scanner that a taxi driver had run into trouble in the area.
Beaman was told that the neighbourhood man later gave a statement to police in which he described the two individuals, but thought the taller one might have been a male. The smaller one, he told police, was wearing a tighter jacket and he thought it might have been fur trimmed.
Pete testified that Kingston Police received an anonymous tip in January 2007, that the robbers were Jennifer Deano, 28, and her younger sister, Jessica Deano, 26.
He also testified that he put together photo lineups containing images of the sisters, but the witness didn't pick either woman out of the lineups. The detective didn't show the photo arrays to the taxi driver, he said, because the man never actually saw the faces of his assailants.
Pete said he wasn't able to secure any security footage from 87 Compton, which might have disclosed the identities of the robbers.
The detective admitted that he had no grounds to arrest either woman, based only on an anonymous tip. However, "it would have been neglectful to not follow that up," he testified and consequently, he was interested in talking to them. He just wasn't able to locate them, he told the judge.
In July 2007, however, he learned there was a warrant out for the elder sister on an unrelated matter and told the court he put a note on her file, directing that when she was picked up, he wanted to speak to her before she attended court.
Beaman learned that his opportunity had arrived after Deano was arrested July 16, 2007, not in relation to the warrant but as a result of concerns about her mental health. The warrant was subsequently brought into play, but, through a misunderstanding, Deano was taken for her bail hearing first and then brought back to the police station to be interviewed by Pete.
The judge was shown a video tape of their conversation, which captured Jennifer Deano asking Pete, "Shouldn't I have a lawyer or something?" almost immediately after he broached the subject of the robbery,
Pete told her, "You can speak to a lawyer whenever you want," but didn't immediately describe her legal options. Instead, he went on to tell her that he intended to talk to her about the robbery, which he believed she and her sister had committed. He told her that she didn't have to speak to him and cautioned her that if she did, anything she said could be used as evidence.
Eventually, Deano responded to one of his questions and spoke of a call for a taxi made from a pay phone near Gordon Grocery.
Immediately after that, Pete told her, "Jennifer, right now I'm going to arrest you for robbery," and explained her lawyer options. She told him she didn't have a lawyer of her own, but wanted to speak to duty counsel.
The video shows that she left the room after that and when she returned, Pete attempted to revisit her earlier comment about calling a cab from Gordon Grocery.
"I'm not supposed to say anything until I talk to my duty counsel tomorrow," she responded.
The video shows that Pete tried a couple of additional approaches, but Deano rebuffed his attempts to draw her into conversation. "I think I'll want to talk to duty counsel tomorrow," she told him. "I don't really understand all of this."
Silver argued that Pete should have stopped questioning his client and provided her with the means to exercise her right to talk to a lawyer immediately after she asked. He told Beaman "it's a hollow offer," when police tell someone they can talk to a lawyer and then delay providing the opportunity until some incriminating statement has been elicited.
Beaman found that Deano's rights were violated when the officer delayed facilitating her request for legal counsel. At the point where Pete began to question her, "it's my opinion her status had gone beyond that of a person of interest to that of a suspect," the judge said and, consequently, Deano should have been cautioned about her liability and afforded an opportunity to seek legal advice.
"I find Ms. Deano did assert her right to counsel," the judge said, adding that she wasn't afforded a timely opportunity to exercise that right.
She then excluded Deano's statement about calling a cab, leaving the Crown with no evidence to connect her - and by extension her sister - to the robbery that night.