R. v. Alfardo-Delgardo 2014 ONCJ 33 – this case is yet another example of the dilemma faced by police in determining “how long is long enough” to wait for counsel of choice to call back versus the investigative necessity to obtain evidence for the offence. This case involved the arrest of the accused for impaired operation and a subsequent demand pursuant to s. 254(3)(a) of the Code.
I will fast forward to the issue of concern as the judge found no breaches of the accused’s rights under either ss. 8 and 9 of the Charter in that the detention at the roadside and his arrest was lawful. The accused was arrested at 1:16 a.m. At 2:02 a.m., the accused, in response to his rights to counsel given earlier, had asked to speak to counsel of choice. At 2:08 a.m., the breath technician placed a call to the lawyer’s office and left a voice mail message on behalf of the accused. The arresting officer testified that shortly after the message was left, he advised the accused that he could contact duty counsel or any other lawyer for the accused, but the accused declined this offer. By approximately 2:17 a.m. when no phone call had been returned by the lawyer of choice, the arresting officer took the accused to the breath room so that samples could be obtained from him. At 2:19 a.m., the breath technician advised the accused of the earlier attempt he had made to contact his lawyer of choice. The breath technician asked the accused if he was satisfied with efforts made and the accused responded “yes”. The arresting officer then reiterated that he had asked the accused if he wished to speak with duty counsel or any other lawyer and the accused declined. The accused responded with words to the effect that he knew that particular lawyer and that lawyer always dealt with his cases, which was why he was asking for him for anything that had to do with this matter. Neither officer acknowledged, questioned, or responded to the applicant’s statement.
The breath technician then asked the accused some health-related questions and provided the accused with instructions on how to provide a breath sample. At 2:29 a.m., the accused provided his first breath sample. After cautioning the accused, the breath technician questioned the accused about his alcohol consumption. The accused admitted that he had consumed 5 beers and 6 shots of Sambuca starting at about 7 p.m. At 2:52 a.m., the accused provided the second sample of his breath into the approved device. Readings were obtained of 160 miligrams of alcohol in 100 millilitres of blood in respect of both samples taken from the accused. By the time the samples were obtained, the lawyer of choice had not called back, nor did he call at any time while the accused was in police custody.
In this case, the arresting officer waited approximately 9 minutes for the accused’s counsel of choice to call back before requiring the accused to attend the breath room to provide samples of his breath. There was no evidence that counsel’s messaging centre or voice mail was not receiving calls or that counsel was not available or out of town. The extent of the implementation efforts on the part of the police in this case in addition to the 9 minute wait was an offer to contact duty counsel or another lawyer for the applicant.
The judge relied upon several cases in reaching the courts decision. R. v. Prosper (1994), 92 C.C.C. (3d) 353 (S.C.C.):
Section 10(b) of the Charter provides that everyone has the right upon detention or arrest to retain and instruct counsel without delay and to be informed of that right. The duties imposed on the State include both an information component to inform the detainee of the existence of the right, and an implementation component, to provide the detainee with a reasonable opportunity to exercise the right, and to refrain from eliciting evidence from the detainee until he or she had had that reasonable opportunity except in exigent circumstances. What constitutes a reasonable opportunity will depend on the surrounding circumstances.
In R. v. Willier,  S.C.J. No. 37, the Supreme Court of Canada considered the issue of whether the police had violated the defendant’s reasonable opportunity to consult his counsel of choice. The Supreme Court held that the police did not in any way interfere with Mr. Willier’s right to a reasonable opportunity to consult counsel of choice by reminding him of the immediate availability of free Legal Aid and advising him that his counsel of choice would not likely return his call quickly given that it was Sunday. The police held off commencing their investigative interview for approximately 50 minutes and began their interview with an open-ended invitation to Mr. Willier to contact counsel at any point. The police made this offer even though the accused had spoken with duty counsel twice while he waited for his counsel of choice to call back.
In R. v. Anderson,  O.J. No. 6186, although just 22 minutes had passed between the officer’s first phone call to the defendant’s counsel and the defendant’s attendance at the breath room, the officer made multiple phone calls to the mobile cell number provided by the accused. In addition, the officer did the following: asked the accused if he had any other way of getting hold of his lawyer; conducted all sorts of computer checks to locate the accused’s counsel; and initiated the process to call duty counsel without foreclosing this as the accused’s only option. It was clear given the officer’s efforts that there was no reliable contact information for the person the defendant wished to contact. The court in Anderson, at para.115, in finding no breach of the defendant’s s.10(b) rights, held that the officer’s efforts to reach the accused’s counsel of choice was a textbook example of how things should be done.
In R. v. Wilding,  O.J. No. 4776, the court found that even though the defendant did not speak to counsel of choice before providing a breath sample, the police did all they could to facilitate contacting counsel including calling a friend of the accused, looking up the lawyers name in a lawyer’s directory, and contacting the number of someone with the same name as counsel, only to find the number to be out of service.
Here, in this case although the accused did not complain at the time, the minimal steps taken to contact his counsel were insufficient according to the judge to satisfy the implementation component of the accused’s s. 10(b) right. The judge said the police should have held off requiring that the accused provide samples of his breath for a reasonable length of time given the time of day counsel was being contacted. Expecting a return call in that brief time frame at that time in the morning was patently unreasonable said the judge. In addition, following the accused ‘s comments to the officers that the particular lawyer did all his work which is why he wanted to speak with him, either the arresting officer or the breath technician should have asked the accused if he wanted them to place a second call to the lawyer or wait a little longer to see if the message was returned. Although, said the judge, not much was required of the police to meet the implementation component of the applicant’s s. 10(b) right, the judge found that the failure to take these steps had resulted in a breach.
The judge found that as the accused’s attendance to give breath samples was well within the legislated two hour requirement which would allow the State to rely on the certificates of analysis, there was simply no urgency which would justify the limited amount of time the police waited for a call back in this case. The rushed nature of the implementation component of the accused’s s. 10(b) right was a significant violation and as such, the breath tests and the statements made by the accused were excluded.