Surprisingly, I am still getting questions regarding the “Prosper Warning” from experienced officers in the field when this has been law and practice since 1994. I am not sure if there has been an issue with training in previous years during recruit training or agency training, or misinformation circulating due to the practice of not even having the “Supplemental-Warning” on the pre-printed Charter/Caution cards given to us by some of our agencies and officers not taking it upon themselves to ensure they have one. Whatever the issue, in my role, I can only assist with the educational, training, and informational aspect of it, and I have no control over the latter (warning not included in the pre-printed cards). In the end, as officers, we are ultimately responsible for our legal knowledge and ensuring we have this “Supplemental-Warning”, for example, to use. After-all, we are the ones on the witness-stand testifying, having to articulate and justify our actions on a daily basis, and being scrutinized by the courts in the process. It’s not easy by no means, so if I can help IN ANY WAY, I will do my best when asked.
Hopefully, no one has been offended by my statements above, but I feel passionate about educating officers on such issues so that we don’t lose cases on cross-examination (or appeal) when a good defence counsel calls us on our actions, or non-actions, when maybe it could of been avoided if we had the training and information given to us to draw upon…..that’s now within my role and hopefully I can live up to the expectations. On to the case that coincidentally was decided just as I’ve been getting questions about this issue that will hopefully reaffirm why I feel this information needs to get out there to each of us. This is by no means meant to make anyone look bad or offend anyone, but rather for educational purposes and information like all my blog posts.
R. v. Deleersnyder 2014 ONSC 3207 – in this summary conviction appeal, the appellant appealed his conviction on a charge of having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood while operating a motor vehicle, contrary to s. 253(1)(b) of the Criminal Code, made by the Ontario Court of Justice.
On February 19, 2009 at 2:28 a.m. the appellant was stopped by an officer with the Sarnia Police Services. The appellant at the time was operating his motor vehicle. As a result of information received by the officer from the appellant, a demand was made pursuant to which the appellant provided a sample of his breath into an approved screening device. The analysis of the sample registered as a “failure” and at 2:35 a.m., and the officer arrested the appellant for operating a motor vehicle while the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. Following his arrest, the appellant was advised of his rights to counsel at 2:37 a.m. The appellant indicated that he understood the rights given and that he did not wish to contact a lawyer. The arresting officer made a demand for samples of the appellant’s breath for the purposes of analysis and the appellant was taken to the Sarnia Police Headquarters at 2:43 a.m., arriving at 2:49 a.m.
On his arrival at the police station, the appellant was paraded by the arresting officer before the supervisor, a Staff Sergeant, at 2:55 a.m. The arresting officer advised the Staff Sergeant as to the time and reason for the appellant’s arrest, that the appellant had been given his rights to counsel, and that the appellant had declined a lawyer. The arresting officer conceded during cross-examination that he had heard the Staff Sergeant ask the appellant if the appellant wished to call a lawyer, to which both officers heard the appellant’s response of “not yet”. Neither officer asked the appellant anything about contacting a lawyer or to clarify the words spoken by the appellant in response to the question from the Staff Sergeant, nor did either officer advise the appellant that the police were required to hold off attempting to obtain evidence from the appellant until the appellant had had an opportunity of contacting counsel (Prosper-Warning).
The arresting officer turned the appellant over to the breath technician at 3:04 a.m. The arresting officer advised the breath technician in the presence of the appellant as to the time and reasons for the appellant’s arrest and that the appellant had been given his rights to counsel and that the appellant had declined a lawyer. The arresting officer did not advise the breath technician that the appellant had replied “not yet” to the Staff Sergeant’s question about contacting a lawyer.
It was the Staff Sergeant’s evidence that in accordance with the usual procedure, he advised the appellant of his rights to counsel and he asked the appellant if he understood his rights to counsel to which the appellant answered that he did. He asked the appellant if he wished to contact a lawyer and the appellant replied “not yet” to him. It was the Staff Sergeant’s evidence that he took this to mean that the appellant did not want to speak to a lawyer, but perhaps he did later. The Staff Sergeant did not seek any clarification from the appellant as to the words “not yet”. Further, the Staff Sergeant did not discuss the appellant’s response “not yet” with the arresting officer, who was present. Further still, the Staff Sergeant did not relay this response to the breath technician. The Staff Sergeant admitted that the appellant’s answer “not yet”, was something that should be given to the technician who was doing the breath test. Having admitted that he should have advised the technician about the appellant’s answer, the Staff Sergeant did not explain why he did not inform the breath technician about the appellant’s answer “not yet”.
It was the arresting officer’s evidence that the testing procedure conducted by the breath technician took until 3:31 a.m. During this time, the arresting officer remained in the breath room, within earshot of the appellant and the breath technician, and during that time the arresting officer did not hear anything from the appellant about contacting a lawyer.
It was the breath technician’s evidence that after he took custody of the appellant, he gave the appellant his rights to counsel. The appellant stated that he understood the rights given to him and that in response to a question from the breath technician as to whether he wished to call a lawyer, the appellant stated that he did not wish to call a lawyer. It was also his evidence that at no time while the appellant was in his custody did the appellant ask for a lawyer. Although the breath technician conceded that he did not have a note as to the precise words spoken by the appellant in response to the question as to whether the appellant wished to speak to counsel, he was clear that the appellant would have been given an opportunity to contact counsel had the appellant requested to do so.
It was the appellant’s evidence that he was reasonably confident that he had told the breath technician that he did not have a lawyer rather than telling the breath techncian that he did not wish to call a lawyer. The evidence of the breath technician contradicted the appellant; it was the breath technician’s evidence that the appellant had indicated that he did not wish to call a lawyer. Further, it was the appellant’s evidence that he had not been told by the breath technician that there was a 1-800 number available to call duty counsel. In his evidence, the appellant conceded that he had not asked the police to assist him in contacting counsel. The appellant testified that he had been treated decently throughout this process. The appellant agreed that he could have had a private call to a lawyer if he wished to contact somebody, but that he had refrained from doing so because he was nervous and upset and he did not want to say anything because he did not know what to do.
The certificate of analysis as to the appellant’s breath samples, as completed by the breath technician, indicated results of 120 milligrams of alcohol in 100 millilitres of blood for both breath samples.
The main issue on appeal related to the first of the Grant factors: the seriousness of the Charter – infringing state conduct. The central argument advanced by the appellant was that both the Staff Sergeant and the arresting officer were aware of the appellant’s “not yet” response given to the Staff Sergeant in response to the question as to whether the appellant wished to contact a lawyer now. The appellant submits that the “not yet” response did not constitute a waiver by the appellant of his rights to counsel, and created an obligation on both officers to “hold off” on the process of obtaining breath samples until the appellant had an opportunity to contact a lawyer. Further, the appellant submits that neither officer informed the breath technician as to the “not yet” response; but rather the arresting officer had indicated instead that the appellant had waived his right to counsel (referring to the appellant’s response while at the roadside).
In relation to credibility, the trial judge concluded that the appellant’s evidence on the voir dire was vague, lacking in detail and not reliable. The trial judge found that the evidence of all three police officers was consistent and the trial judge accepted their evidence. The ONSC ruled there was no basis in this appeal to disturb those findings. The trial judge found that the appellant’s response of “not yet” to the Staff Sergeant’s question as to whether he wished to contact a lawyer now, was ambiguous and did not constitute a waiver by the appellant as to his s. 10(b) right to counsel. This led to the trial judge’s further findings that: the Staff Sergeant ought to have cleared up the ambiguity and he did not; that although the primary responsibility to clean up this ambiguity fell to the Staff Sergeant, that the arresting officer should have cleared up the ambiguity and he did not do so. The trial judge accepted what the arresting officer told the breath technician about the appellant’s arrest, including him advising the breath technician that the appellant had declined his right to counsel at the roadside. In examining the fact that although the breath technician was not made aware of the “not yet” response by the appellant to the Staff Sergeant, the trial judge considered the fact that the breath technician independently advised the appellant of his right to counsel and that the appellant declined. Specifically, the trial judge considered whether the appellant’s response to the breath technician constituted a waiver of his right to counsel. The trial judge concluded that there was no waiver by the appellant stating as follows:
… While in other circumstances Mr. Deleersnyder’s response to [the breath technician] would constitute a waiver of the right to counsel, it cannot here. [The arresting officer and the Staff Sargent] had an obligation to advise the accused of their obligation to hold off on the next step in the investigation. This is the law according to Regina v. Prosper, a decision of the Supreme Court of Canada which creates three duties on the police:
(a) the duty to inform of the right of counsel,
(b) the duty to give a reasonable opportunity to consult counsel, and
(c) the duty to hold off in eliciting further evidence from an accused who has expressed a desire to consult counsel until such times as they have had that opportunity.
As an aspect of this latter duty, there is an additional component where an accused asserts the right to counsel and then indicates the change in that position. As stated by Mr. Justice Lamer in Prosper, and I quote:
At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity.
The trial judge then considered the failure of the police to hold off on further investigation, as follows:
… After advising Mr. Deleersnyder of his right to counsel, [the breath technician] received what appeared to him to be a clear waiver of the right to counsel. Since there was no clear waiver in response to the [Staff Sergeant’s] question, Mr. Deleersnyder should have been told by [the breath technician], or by someone, of the obligation on the police to hold off in the next step of the investigation. …
The trial judge found that the failure of the police to notify the appellant of this additional obligation to hold off was a violation of the appellant’s s. 10(b) right based on R. v. Prosper,  3 S.C.R. 236 (S.C.C.). Having found a violation of the appellant’s s. 10(b) right to counsel, the trial judge relied on the fact that the appellant waived his right to counsel at the roadside, and that the police had therefore complied with the appellant’s Charter-protected right to counsel. The trial judge reached this conclusion by finding that the Staff Sergeant, and also the breath technician, had no obligation to advise the appellant as to his right to counsel. The trial judge viewed the steps taken by the Staff Sergeant in advising the appellant of his right to counsel only “as a precautionary measure”. The trial judge reasoned that this step was indicative of a respect for the Charter-protected right of the appellant. The trial judge characterized the failure of the Staff Sergeant and the arresting officer to clarify what the appellant meant by “not yet”, as more indicative of inadvertence rather than an act showing “flagrant disregard” for the appellant’s rights.
The ONSC said with respect to a detainee’s waiver, once a detainee asserts a right to counsel, there must be a clear indication that the detainee has changed his or her mind and the Crown bears the burden of establishing an unequivocal waiver: R. v. Prosper, at para.45. With respect, Justice V. Mitrow J. of the ONSC found that the trial judge’s conclusion that the police conduct was inadvertent and on the lower end of the spectrum of seriousness to be unreasonable. According to Justice Mitrow, the trial judge focused on the informational aspect of the state’s obligation towards the appellant’s s. 10(b) right to counsel. This occurred when the trial judge considered that after declining his right to counsel at the roadside, the appellant was later advised of that same right by both the Staff Sergeant and the breath technician even though there was no obligation to do so. The trial judge, in effect, found that this conduct mitigated the failure of the police to properly respond to the “not yet” statement by the appellant, leading the trial judge to find that the police conduct was inadvertent. The trial judge, in emphasising the informational component of the appellant’s right to counsel, gave insufficient or no consideration to the breach of the state’s obligation regarding the implementational component of the appellant’s s. 10(b) right.
Justice Mitrow said the trial judge’s finding “… that there was no need for any further advice by the police with respect to the Charter of Rights” was unreasonable given the failure of the Staff Sergeant and the arresting officer to properly respond to the appellant’s “not yet” response, and their failure to tell the appellant of the police obligation to “hold off”. In R. v. Grant,  S.C.J. No. 32 , at para. 74, it was noted that state conduct resulting in Charter violations varies in seriousness from “inadvertent or minor violations” at one end of the spectrum to wilful or reckless disregard of Charter rights at the other end of the spectrum. Justice Mitrow said the totality of the aforementioned conduct, at least on the part of the Staff Sergeant and the arresting officer, was far more indicative as a minimum of negligence, not mere inadvertence. The trial judge’s reasons, as a whole, suggested that the police were viewed as acting in good faith, which Justice Mitrow found to be unreasonable based on the record and the trial judge’s findings of fact. Ignorance of Charter standards must not be rewarded, or encouraged, and negligence or wilful blindness cannot be equated with good faith: R. v. Grant, supra at para.75.
In view of the conclusion reached on the ground of appeal in relation to the seriousness of the police conduct, Justice Mitrow found that the appeal should be allowed and the conviction quashed, and a new trial was ordered before a different judge in the Ontario Court of Justice at Sarnia.