Officer Breached the Accused’s s. 10(b) of Charter Right Where Officer Undertook to Make Phone Calls for the Accused, but Refused to Leave Voicemail Messages at the Numbers Called and Evidence of ‘Refusal’ Excluded

R. v. O’Connor 2013 SKQB 292 – a constable observed the accused leaving a bar in a vehicle and noted an unusual route and difficulty steering. When stopped, the accused admitted to having several drinks, there was an odour of alcohol, he had glassy eyes, was speaking slowly, and also seemed to have difficulty understanding ASD directions and controlling his breathing. The accused requested a lawyer, and at the detachment asked to call his father to obtain information on a lawyer. The constable attempted to call the accused’s family, but received no answer. The accused continued to insist on contacting his father. The accused subsequently failed to provide a sufficient breath sample. The accused argued he was arbitrarily detained, as the arresting officer did not have reasonable and probable grounds for his arrest, flowing from this the requirement to provide a breath sample was a breach of s. 8 of the Charter, and he had also been denied his s 10(b) right in not being permitted to contact his parents to obtain information for the family lawyer. The accused further submitted there was not sufficient evidence to prove he was driving while impaired and he had a reasonable excuse for failing to provide a breath sample. The accused submitted he was unfamiliar with the vehicle he was driving, which was having steering problems, and was speaking deliberately to avoid inappropriate language.

The Saskatchewan Provincial Court acquitted the accused on the charge of impaired operation, but convicted him on a charge of failure to comply with a breath demand without reasonable excuse. The factors relied on by the constable were satisfactory that he had a subjective belief the accused had committed the offence and that this belief was objectively reasonable. The constable had grounds to make the arrest and there were no breaches of ss. 8 or 9 of the Charter. With regard to the alleged breach of s. 10(b), the constable had fulfilled his obligation to attempt to contact the accused’s father. That the constable did not leave a telephone message did not breach the accused’s rights. Even if the constable’s efforts were deficient, the accused was not diligent in exercising his right to counsel, as he had not contacted other counsel when informed his family could not be reached. On the issue of impairment, there were concerns with the credibility of the accused’s evidence of alcohol consumption, which was not accepted, or the expert evidence based on that consumption. However, there was a reasonable doubt as to the accused’s impairment. The indicia were consistent with alcohol consumption, but signs of impairment were lacking: the accused’s evidence was accepted as to driving and speaking irregularities, he had stopped his vehicle safely and had no difficulty with balance. The accused had not raised a valid excuse for his refusal to provide a breath sample. As there had been no violation of the accused’s s. 10(b) rights, the argument that the breach of such resulted in his failure to comply with the breath demand could not be advanced. The accused was guilty of failure to comply with a breath demand, but acquitted on the charge of impaired operation.

The accused appealed his convictions to the SKQB.  The Judge ruled that the accused’s S. 10(b) Charter rights were breached because the officer undertook to make phone calls for the accused drinking driver, but refused to leave voicemail messages at the numbers called and evidence of ‘refusal’ were excluded.  Quoting the Judge: “… First, the evidence “as to why these matters transpired as they did” was clear: what transpired took place because the investigating police officer took it upon himself to take control of the contact process. Second, the conclusions did not take into account the reality that Mr. O’Connor himself would surely have left a message for his parents to return the call. Third, the conclusion that “no return phone call was reasonably anticipated” ignored the reality that there could be no return phone call from the parents unless the police officer left a message for them to call. It also ignored the reality that the parents were themselves trying to contact Mr. O’Connor, and were being turned away from the police detachment by being told, wrongly, that their son was not there.

On the hearing of this appeal, both counsel referred to suggestions at trial that the constable did not leave a message for Mr. O’Connor’s parents because he had “privacy concerns”. I will not attempt to assess, on appeal, whether those concerns were genuinely held. From an objective perspective, however, I find that they were not reasonable. A few of the reasons for that finding are that (1) The constable, having decided to place the calls, could have easily dealt with any privacy concern by asking Mr. O’Connor if he wished to have a message left for his parents; (2) a simple request to call back with a telephone number would not have breached any privacy issues; and (3) if privacy was an issue, it was an issue of the officer’s own making: all he had to do to resolve it was to allow the appellant to place his own phone call.  For all of these reasons I find that the appellant was denied the right to consult with his counsel of choice in breach of s. 10(b) of the Charter.”

“Although the case for excluding the evidence of refusal is not overpowering, given the need to underline the importance of ensuring that accused persons are afforded their right to counsel the exclusion of the evidence of refusal under s. 24(2) of the Charter would be in the best interests of the administration of justice. It would also be in keeping with a Grant analysis and consistent with the ultimate conclusions reached by the majority of the Supreme Court of Canada in Bartle.  Accordingly, I find that the evidence of refusal must be excluded pursuant to s. 24(2) of the Charter.”

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Filed under Impaired Driving, Recent Case Law, Section 10 Charter

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