R. v. Bernesky 2014 ABPC 98 – yet another case out of the Alberta Provincial Court has examined the time limits to contact counsel and whether or not we have to give them access to the Internet to do so. Graham James Bernesky (‘Bernesky’) was arrested for impaired driving and taken to the police station to provide breath samples. Over more than 1 1/2 hours, he attempted to contact a lawyer, without success. Police eventually decided that he had taken enough time and directed him to provide breath samples immediately. He refused to do so. This case involved consideration of the right to counsel and what has become known as the ‘first implementational duty’. How long can a detainee take when attempting to contact counsel? Must the police give him access to the Internet in order to assist him in doing so?
The issues at the Charter hearing were whether or not the accused was afforded a reasonable opportunity to exercise his right to counsel? Did the police infringe or deny his right to counsel by: (a) directing him to contact Legal Aid after approximately an hour and 40 minutes; (b) seizing his cell phone and thereby preventing him from accessing the Internet; and/or (c) peremptorily terminating his efforts to contact counsel?
The implementational duty to afford detainees a ‘reasonable opportunity to consult counsel’ has been the subject matter of considerable litigation. That obligation, as an incident of a detainee’s right to counsel, was first described by the Supreme Court in the seminal case of R. v. Therens,  1 S.C.R. 613, where Lamer J. stated (at para.21):
“In my view, s. 10(b) requires at least that the authorities inform the detainee of his rights, not prevent him in any way from exercising them and, where a detainee is required to provide evidence which may be incriminating and refusal to comply is punishable as a criminal offence, as is the case under s. 235 of the Code, s. 10(b) also imposes a duty not to call upon the detainee to provide that evidence without first informing him of his s. 10(b) rights and providing him with a reasonable opportunity and time to retain and instruct counsel.”
As Wilson J. stated in R. v. Jacoy,  2 S.C.R. 548 (at para.29):
“Going through the mechanics of informing persons under arrest or detention of their right to retain and instruct counsel without delay and then denying them the right to do so does not meet the requirements of s. 10(b).”
Determination of whether a detainee’s opportunity to consult counsel was reasonable is a finding of fact. See: R. v. Smith,  2 S.C.R. 368 (‘Smith’), per L’Heureux-Dube J. The proper approach to making that determination was described by the court in Smith in the following terms:
“What is a reasonable opportunity is determined by reference to all the circumstances of the case, including the action of the accused. Whether an opportunity is reasonable must be judged in part in light of the diligence with which the accused seeks to avail himself or herself of the right.”
This formulation was reiterated and expanded upon in R. v. McCrimmon, 2010 SCC 36, where the court stated (at para.18):
“What amounts to a reasonable period of time depends on the circumstances as a whole, including factors such as the seriousness of the charge and the urgency of the investigation. It is also informed by the purpose of the guarantee. The right to counsel upon arrest or detention is intended to provide detainees with immediate legal advice on his or her rights and obligations under the law, mainly regarding the right to remain silent.”
It was inevitable that courts would be called upon to consider limitations on or qualifications to a detainee’s ‘reasonable opportunity to consult counsel’. At least 4 limitations or qualifications, operating alone or in conjunction with each other, have now been recognized by the Supreme Court. These are: (1) situations where the detainee fails to pursue his or her right to counsel with due diligence; (2) ‘compelling’ situations of urgency; (3) situations where delay would lead to the loss or destruction of evidence; and (4) situations involving danger. According to the ABPC in this case, the first 3 of these qualifications or limitations had application to this case.
In R. v. Prosper,  3 S.C.R. 236, the court acknowledged that a requirement for police to hold off on obtaining breath samples until a detainee was able to contact counsel could prevent the prosecution from relying upon the ‘presumption of identity’ in s.258(1)(c) C.C. Nevertheless, Lamer J. ruled that,
” … in the context of impaired driving cases, I am satisfied that the existence of the two-hour evidentiary presumption available to the Crown under s. 258(1)(c)(ii) of the Code does not, by itself, constitute such a compelling or urgent circumstance.”
And further that,
“A detainee’s Charter-guaranteed right to counsel must take precedence over the statutory right afforded to the Crown which allows it to rely on an evidentiary presumption about what a breathalyser reading would have been at the time of care and control of a vehicle.”
Impaired driving cases involve situations where important evidence may disappear over time. That is to say that alcohol is metabolized by the human body over time. In the vast majority of cases, delay in taking and analyzing breath samples will result in the test subject’s blood/alcohol level being higher at the time of driving than it is when tested. This dynamic was also considered by the court in Prosper in the context of how much time should be allotted a detainee of whom breath samples are demanded:
“It may be that on some occasions a detainee’s reasonable opportunity to contact counsel, and the corresponding holding-off period, will extend to the point at which it is no longer possible to obtain breathalyser readings that can be accurately extrapolated backwards to provide information about the accused blood alcohol level at the time of the alleged offence. The question of whether or not the imminent loss of the chance to obtain any meaningful breathalyser data might constitute an “urgent circumstance” sufficient to curtail the holding-off period does not arise on facts of this appeal. In the case at bar, breathalyser readings were obtained roughly an hour after the appellant was detained, well before any sense of urgency connected to the loss of the opportunity to obtain useful breathalyser data would have developed. It is, therefore, unnecessary to decide in this case whether, under different circumstances, the prospect of the loss of all opportunity to obtain breathalyser data might justify abridging the holding-off period. Moreover, this question could not, in my view, be decided without considering the statutory provisions upon which the police’s ability to obtain breathalyser data rests. As I noted in Bartle, at p. 213, breathalyser evidence in impaired driving cases is often characterized as “statutorily compellable” by virtue of the fact that refusing to provide a breath sample in these circumstances is itself a criminal offence under s. 254(5) of the Code. The results of a breathalyser test are self-incriminatory evidence (Bartle, at pp. 213-14), and were it not for s. 254(5), a detainee would be free to choose not to assist the state’s investigation by providing a breath sample. In my view, any consideration of the question of whether the state’s interest in obtaining breathalyser readings was sufficiently pressing to constitute an “urgent circumstance” warranting the curtailment of a detainee’s s. 10(b) rights would, by inference, require an examination of the constitutionality of s. 254(5), an issue that was not raised directly on this appeal. For these reasons, I prefer not to decide this question at this time.”
In the hearing at hand, the Hounourable B.D. Rosborough said, without more, the court was satisfied that Bernesky not only had the right to select a particular lawyer, but he had the right to exclude a particular lawyer (or group of lawyers) from those he might otherwise retain and instruct. Bernesky testified that, based upon a previous experience involving duty counsel, he believed that he would not receive appropriate legal advice. His view was apparently supported by counsel privately retained by him. There was no evidence contradicting these assertions and the court accepted them.
Judge Rosborough said it was significant that Bernesky did not, at any relevant time, request the use of either his cell phone or another device capable of accessing the Internet. He was frustrated with his attempts to contact counsel by using the materials provided by the police, but was intent on continuing to do so. Police do not have to guess whether a detainee wishes to use another method of contacting counsel, so therefore in this case, the police did not infringe or deny the Applicant’s right to counsel by failing to afford him access to the Internet or otherwise provide him with his cell phone.
Further, it would appear from these authorities that there is no set limit on the amount of time a detainee may take when making bona fide efforts to contact counsel. Indeed, said the Judge, at least one court has expressly declined an invitation to provide such a ‘time limit’ in an impaired driving case. See: R. v. Dunnett, 62 C.C.C. (3d) 14 (N.B.C.A.). It would be reversible error to conclude that 30 minutes, or 1 hour, or 2 hours, or 10 hours constitutes an immutable time limit in that regard. Indeed, Wilson J. saw nothing unreasonable about an 8 hour ‘hold off’ period in a case where the accused was charged with murder and there was no urgency in pursuing the investigation.
Judge Rosborough said courts have steadfastly rejected the propositions that: (a) loss of the statutory presumption in s. 258(1)(c) C.C.; or (b) dissipation of alcohol from the blood of a suspected impaired driver render those investigations ‘urgent and compelling’. Rather, the availability of expert opinion evidence to extrapolate blood/alcohol concentrations and resort to the offence of ‘impaired driving’ (s. 253(1)(a) C.C.) have been suggested as adequate safeguards in the circumstances. It was also worthy of note, said the Judge, that the offence of ‘refusal’ (s. 254(5) C.C.) is not conditioned on compliance with a peace officer’s demand within a given period of time. Legal compulsion to provide breath samples continues indefinitely.
Given the foregoing analysis, Judge Rosborough was satisfied that the Applicant had proven on a balance of probabilities that his right to counsel was infringed or denied by the police and that the admission of any evidence (including the Applicant’s refusal to comply with Belanger’s demand) would bring the administration of justice into disrepute.