Breath sample evidence excluded for s. 10(b) Charter violation occasioned by failure to give “Prosper Warning”

R. v. Delaney 2014 ONCJ 83 – following the A.S.D. demand and subsequent test, a “F” reading resulted and a demand was made for breath samples and rights to counsel were provided. Initially, the accused made no response to the usual questions about counsel, but prior to arriving at the police station he had advised that he wished to consult a lawyer and at the station he advised he wanted to speak to a specific lawyer and gave the officer the name. The officer proceeded to make an online search of the name and determined that the lawyer requested was an estate lawyer. The officer gave evidence that he advised the accused that the lawyer he had chosen was not a criminal lawyer and asked “how he would like to proceed with contacting counsel”. The accused indicated that he wished to call the lawyer he requested and the officer stated he called the number listed on the website and left a call back message at 1:45 a.m. He then called the emergency number, which was not answered. He did have not any notes as to whether he left a message on the emergency line. At 1:48, he advised the accused that there was no answer at either number and that he had left a voicemail. The officer then asked if he wished to speak to any other counsel “and the indication was that he did not”. He stated he again asked, “You do not wish to talk any other lawyer?” — to which the accused indicated that was “Correct”. No return call was received from the lawyer by the time the officer reported off duty at 7:00 a.m.

At 2:00 a.m., the accused was taken into the breath room and at 2:08 the first breath test was completed. The officer testified that after the first breath test, he again offered the accused the opportunity to speak with a “lawyer or someone else” to which there was no response, after which “he fell asleep immediately”. Under cross-examination, the officer agreed that he waited 14 minutes between 1:46 and 2:00 a.m. for counsel to return the call before ushering the accused into the breath technician’s office. He also agreed that he was not aware of the “Prosper” [1994] 3 S.C.R. 236 obligation to hold off from trying to obtain incriminating evidence while an accused person is waiting for an opportunity to contact counsel. As well, the officer agreed that he had not given the accused the “Prosper caution” — in other words, informed him that the police have the obligation to give him a reasonable opportunity to speak with counsel of choice and they should hold off eliciting evidence until such time as “you have an opportunity to consult with your counsel”. The officer gave evidence that he did not know “that legal privilege”.

Defence asserted that the accused’s 10(b) rights were violated as a result of the officer’s failure to give a “Prosper warning” and establish an unequivocal waiver of his right to counsel. The Crown took the position that the defendant was not being reasonably diligent in the exercise of his right to counsel having turned down the offer to contact another lawyer when his lawyer of choice could not be reached, and accordingly, the correlative duties of the police were suspended and there was no impediment to the continuation of the investigation and the request for a breath sample.

The Judge said that one very troubling feature of this case was the fact that the officer candidly admitted that he did not know it was the law in Canada that he was under an obligation to provide a “Prosper warning” or obtain an informed, unequivocal waiver of the right to counsel before taking the next investigative step:

Q. An additional informational obligation on police is triggered once a detainee who has previously asserted the right to counsel indicates a change of mind and no longer wants legal advice. The police must at that point tell the detainee of the right to a reasonable opportunity to contact counsel and that the obligation on the part of the police to hold off during that period. Any indication of a change of mind must be clear and the burden of establishing an unequivocal waiver is on the Crown.

Were you aware that was the status of the law on December sixth, 2013?

A. Not specifically, no.

The Judge said applying the facts to all of the evidence, it was clear that the accused indicated that he wished to consult with counsel of choice and he was as diligent as he could be in doing so. He requested a named counsel and did what was expected by waiting from the time a message was left at 1:46 a.m. It was clear, according to the Judge, that the officer intended to terminate the waiting at 2:00 a.m., fourteen minutes later and offer the accused an alternative opportunity to consult with counsel, but in the absence of any note-taking (another issue brought up by the Judge) as to the questions asked, it was impossible to know precisely what the defendant responses meant or what he elected to do. The officer was of the belief that the accused was declining the offer to “speak to duty counsel or any other counsel.” There was no alternative but to accept the officer’s version of what transpired, but it was clear that he did not think the questions and answers regarding rights to counsel were important enough to memorialize in his notebook said the Judge.

The point is — that if, as the officer says the defendant in fact declined an offer to speak with duty counsel or any other counsel, the logic of the two bedrock decisions noted above (Prosper and R. v. Brydges [1990] 1 S.C.R. 190) is that when the police cannot reach counsel of choice, and the defendant indicates he has changed his mind and no longer wants legal advice, the “Prosper duties” must be complied with and an unequivocal waiver obtained — and only then will a defendant’s failure to avail himself of duty counsel amount to a failure to exercise reasonable diligence. In my view, ‘reasonable diligence’ on the part of the defendant never comes into play in this case.

The only way that Prosper and all the ‘reasonable diligence’ cases can be reconciled is by giving effect to the case authorities noted above and placing the police duties and the accused’s right to counsel obligations in their natural order. When counsel of choice cannot be reached after a reasonable waiting period, and an accused wishes to speak with alternate counsel, or duty counsel, an accused has to pursue that choice with reasonable diligence. Where an accused indicates that he or she has changed his or her mind and no longer wants legal advice, police must provide constitutionally sufficient information (the Prosper caution) in order to allow him or her to make a fully informed decision. This “additional informational requirement” on police “ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up,” according to R. v. Prosper.

The casual institutional disregard for an individual’s section 10(b) rights in this case suggests a systemic deficiency and a major gap in police training. …

At para. 44, the Judge said:

I can well imagine the pressure to rush through what might seem to be a meaningless ritual to police in order to procure the first breath sample ‘as soon as practicable’ and within the two-hour evidentiary presumption available to the Crown under s. 258(1)(c)(ii) of the Code. The fact is Mr. Delaney was arrested at 1:13 a.m. and at 2:00 a.m. he was taken into the breath technician’s office. The first breath sample was obtained by 2:08 a.m. With more than one hour remaining on the “clock” and the overriding Prosper principle that an accused’s rights to counsel trump the two-hour evidentiary presumption, there was no justification for such a thoughtless, mechanical and hurried response to the defendant’s change of mind about contacting counsel. The significance of an individual’s right to counsel on arrest or detention must be communicated to policing agencies: it is one key feature that differentiates constitutional democracies from regimes in which individuals are detained and held incommunicado for lengthy periods while state agents attempt to procure incriminating evidence.

Accordingly, the breath sample evidence and any statements obtained following the breach of the defendant’s section 10(b) rights were excluded pursuant to section 24(2) of the Charter.

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