R. v. Ferris,  S.J. No. 142 – Ferris was charged with operating a motor vehicle while impaired by alcohol and while over the legal limit of .08. This case focused on the issue of lawful grounds for the arrest and breath demand, but the other issue with respect to s. 10(b) of the Charter will be the focus of this post. Section 10(b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.
At the time of arrest, when asked whether he wished to call a lawyer, Mr. Ferris said “yes I would”. The officer stated that, at the detachment, Mr. Ferris, when asked if he had decided on a lawyer to contact, said he had not. The officer claimed he told Mr. Ferris that he could provide him with a phone book or call a lawyer or call Legal Aid. He said Mr. Ferris chose to call Legal Aid. He then contacted the toll-free number for Legal Aid, gave the phone to Mr. Ferris, and left the room. He said Mr. Ferris spoke to Legal Aid duty counsel for five minutes. On cross-examination, the officer was asked whether, at the roadside, Mr. Ferris wanted to talk to his mother about getting a lawyer. The officer responded Mr. Ferris could have said this. The officer said he refused to allow Mr. Ferris to speak to his mother before the samples were taken as he was an adult person and the only person he was allowed to call was a lawyer. The officer said he was trained to only allow an arrested person to phone a lawyer as there was no way of knowing who the person would otherwise phone.
Mr. Ferris said he asked the officer numerous times whether he could phone his mother. He said, when in the interview room in the detachment, the officer asked him if he wanted to speak to a lawyer and asked him whether he knew any. Mr. Ferris responded he wanted to speak to his mother to get the name of the family lawyer. The officer then said he would call Legal Aid for him. On cross-examination, Mr. Ferris said he didn’t want to speak to a Legal Aid lawyer, but admitted he did not tell the police officer this. When asked why he did not, he said he didn’t know any other lawyers and he just wanted to speak to his mother about this. He said, when the officer asked him whether or not he had made up his mind yet about which lawyer to call, he told the officer he just wanted to call his mother. When asked what effort he put into finding a lawyer, he said he did not know how to do this. He maintained that he told the officer why he wanted to call his mother, and that it was his mother that knew of a lawyer that she had dealt with in the past. He thought his call to Legal Aid was his only option, but admitted that he didn’t express any dissatisfaction to the police officer after he spoke to that lawyer.
Honourable Judge Ross Green said that he was satisfied that: (1) Mr. Ferris asked the officer a number of times whether he could call his mother to get the name of the family’s lawyer and the officer refused, saying he could only allow him to speak to a lawyer; and (2) Mr. Ferris then spoke to Legal Aid counsel, after the officer suggested this, and said nothing further to the officer about his rights to counsel before he blew into the breath machine. Taken together, the judge said he was satisfied that Mr. Ferris was reasonably diligent in attempting to contact a lawyer – which he wanted to do with the help of his mother. As well, said the judge, even with his silence after he spoke to Legal Aid counsel, he was not satisfied he waived his right to speak to a lawyer of his choosing, given his repeated requests to get the name of his family’s lawyer from his mother.
Ultimately, said Judge Green, the issue becomes whether the officer’s refusal to let Mr. Ferris call his mother, for the stated reason, violated his rights under s. 10(b) of the Charter. Judge Green applied R. v. Laplante, (1987), 40 C.C.C. (3d) 63 (Sask. C.A.), in which the accused asked on three occasions, while in the police cell block, to call his wife to find out if she had retained a lawyer for him. These requests were refused. In finding that this constituted a breach of Mr. Laplante’s s. 10(b) rights, Justice Vancise said:
The detainee has the right to consult counsel and by requesting to call someone in connection with that right is asserting the desire to exercise that right. Here the person in charge of the lockup, the commissionaire, did not make the necessary arrangements to enable the appellant to call his wife for the purpose of retaining and instructing counsel. He was not afforded the opportunity to consult with a lawyer.
Judge Green also applied R. v. O’Connor 2013 SKQB 292, where Ball J. found the refusal of a police officer to allow a detained person the opportunity to contact his father by telephone, for help in getting the number of their family’s lawyer, to constitute a violation of Mr. O’Connor’s right to consult with a lawyer of his choice as guaranteed by s. 10(b).
Judge Green said that similar to those cases, here he was satisfied that Mr. Ferris, when he asked to contact his mother, was asserting his right to contact a lawyer through her. Because he was denied this opportunity, he was satisfied that the officer did not act diligently in facilitating Mr. Ferris’ right to consult a lawyer of his choosing, and that, as a result, his rights under s. 10(b) were infringed.
Following the Grant Test, Judge Green said in this case, in addition to a s. 10(b) breach, breaches of ss. 8 and 9 as well occurred. While there may have been grounds for a suspicion that Mr. Ferris had alcohol in his body, and hence for an ASD demand under s. 254(2), the judge did not accept that the officer’s subjective belief that Mr. Ferris had been driving while impaired in the previous three hours was reasonable (points that I did not discuss in this post). In summary, he found: (1) the officer acted too quickly in arresting Mr. Ferris and in demanding that he provide a sample of his breath under s. 254(3); and (2) likely through an institutional mistake in training – although that is not certain – the officer denied Mr. Ferris the right to contact a lawyer of his choosing by refusing to allow him to contact his mother to get the name of a lawyer. As well, the judge was not satisfied that the Crown had shown “that the accused would not have acted any differently had there been no s. 10(b) violation”.
As a result, Judge Green excluded (1) any evidence of the breath tests, including the Certificate of Analyses, and (2) any evidence of Mr. Ferris’ condition, behaviour or demeanour after he was arrested.