The Section 10(b) Charter right to retain and instruct counsel includes the ability to do so in private without being overheard by police

R. v. McLean 2014 ABPC 231 – although a decision at the Provincial Court level, the principles discussed are worthy of education. The accused was pulled over for speeding near Cold Lake, Alberta, and charged with an offence. Subsequent to the Traffic Safety Act offence, police also began an impaired driving investigation and subsequently charged the accused with ss. 253(1)(a) and(b) of the Code. 

Upon arrival at the Cold Lake detachment, the accused was provided with a second opportunity to exercise his s. 10(b) rights and placed in a small room (“the telephone room”) which was equipped with a telephone, a yellow page telephone directory, a counter and a chair. The arresting officer continually monitored the accused by looking through the small window in the door of the telephone room to ensure that the accused was not “messing around.” He explained that on the basis of past experience in impaired driving investigations, some accused persons “messed around” by eating pages from the telephone directory, by vomiting, and/or by sleeping rather than making earnest efforts to contact legal counsel.

In the course of monitoring the accused while he spoke with legal counsel, the officer overheard the words “Cold Lake” and “driving under the influence” through the shut door of the telephone room. In this regard, the officer took two to three steps away from the closed door to the telephone room to avoid hearing any more of the conversation. The officer recorded the words “Cold Lake” and “driving under the influence” in his duty note book. Aside from these utterances, the officer did not overhear any other words spoken by the accused while in the telephone room.

The accused testified that while speaking with legal counsel, he acknowledged that while the officer did not make any statements to him through the closed door, he could overhear conversations taking place outside the room when he was on the phone with legal counsel. Although he could not hear exactly what was being said, he was able to identify the voices of two investigating officers outside his door. He agreed that the officers were not yelling. Nonetheless, the accused was unsure as to what the officers themselves could hear from inside the room during his conversation with counsel. As a result, the accused concluded that his conversation was not private. This in turn made him reluctant to explore certain topics of legal inquiry with counsel. The accused’s primary concern was that he might be overheard. He testified: “I felt uncomfortable…I was nervous…the charges were serious…I was worried about them hearing what I had to say on the phone…even though I spoke quietly, the officer was continually coming up to the window.”

The accused admitted he did not then voice his privacy concerns to the officer because he wanted to appear cooperative and thought that it would not benefit his cause to do so. He assumed that he could subsequently “sort it out with counsel”. The accused also noted that it was nearing four in the morning and given that he had to report to work within a few hours, he did not feel there was anything to gain by raising these issues. He made it clear, however, that he would have preferred additional legal advice at that time in order to help him understand the criminal process he was facing.

Provincial Court Judge R.M. Saccomani said the s.10(b) Charter right to retain and instruct counsel includes the ability to do so in private without being overheard by police; R. v. Dowell, 2010 ABPC 389; R. v. Rudolph (1986), 32 C.C.C. (3d) 179 (Alta. Q.B.); R. v. Playford (1987), 40 C.C.C. (3d) 142 (Ont. C.A.). An accused person must be able to freely and candidly communicate with counsel in a manner consistent with the expectation of confidentiality — a hallmark of the solicitor-client relationship. It would defy common sense to expect an accused to properly instruct counsel if the conversation can be overheard; R. v. Edgar, 2013 ABPC 238 at para. 64; R. v. Playford, supra at para. 31. Conversations between a detainee and counsel typically require the provision of details or an explanation of the circumstances which led to the arrest. If such communications were overheard, they may be armed with the potential to seriously prejudice an accused in the exercise of legal rights; R. v. Playford, supra at para. 31; R. v. Burley, 2004 CanLII 9437 (ONCA). Police therefore have a duty to provide privacy to a detainee during his or her consultation with counsel. An actual lack of privacy in these circumstances is a breach of an accused’s s. 10(b) Charter rights; R. v. Hume, 2013 ONCJ 380 (Ont. C.J.) at para. 30; R. v. Carroll (2002), 2002 CarswellOnt 987 (Ont. S.C); R. v. Playford, supra at para. 40. Pure speculation or unreasonable assumptions on the part of an accused that communications could be overheard, however, would not be sufficient. On a balance of probabilities, there must be proof of a real or substantial possibility that a conversation was overheard; R. v. Stacey, 280 Nfld & P.E.I.R. 27 (Nfld. Prov. Ct.) at para. 25; R. v. Luong, 2000 ABCA 301.

The applicable legal test in the circumstances is the ‘reasonable apprehension test’. In the absence of a proven privacy invasion there may nevertheless be a s.10(b) infringement where an accused establishes: 1) a subjective belief that he/she could not retain and instruct counsel in private; and that 2) said belief was objectively reasonable in the circumstances; R. v. Dowell, supra; R. v. Edgar, supra; R. v. Watamaniuk, 2012 ABPC 266; R. v. Veness, 2007 ABQB 283; R. v. Cairns, [2004] O.J. No. 210 (Ont. C.A.); R. v. Miller, 1990 CanLII 6490 (NL CA). In applying the test, the court must consider unique contextual factors including the actual location where the accused was offered the opportunity to speak with counsel and events surrounding the alleged breach; R. v. Stacey, 2008 Nfld & P.E.I.R. 27 (Nfld. Prov. Ct.). There is no legal burden on an accused to advise police of privacy concerns at the time they arise. The presence or absence of a complaint is simply one of the contextual factors to be considered within the analysis of the totality of the circumstances; R. v. MacKinnon, 2013 NSSC 356 (N.S.S.C.) at para. 29; R. v. Hume, supra at para. 33.

Judge R.M. Saccomani examined a number of cases in which a s. 10(b) Charter breach was not found, and others where a s. 10(b) Charter breach was found. Applying all these principles to the case at hand, Judge Saccomani said the accused stated he was uncomfortable, nervous, and felt constrained to speak freely with counsel because he feared he might be overheard by officers. The accused concluded that his conversation was not private because he could hear police voices outside the telephone room while he remained inside on the phone. Throughout his conversation with counsel, he observed that he was being continually watched through the small window fitted in the door by the investigating officer. Resultantly, the accused curbed his legal inquiries which he would have otherwise preferred to explore. The officer similarly presented as a credible witness whose testimony did not have any material inconsistencies. The officer admitted that he overheard words spoken by the accused while he stood outside the room. As he was aware that the accused was entitled to privacy, he immediately backed away from the door and recorded what he heard in his duty book. The officer acted in good faith and tried to ensure compliance with the accused’s s.10(b) Charter rights.

Judge Saccomani said the police telephone room, its construction, the manner in which it was utilized, or potentially a combination of these factors, created a space which failed to satisfy one of its primary functions [i.e.] a private space for the accused to communicate freely and candidly with counsel. Although the precise reason the room failed was not the focus of inquiry at trial, evidence nevertheless established that the accused heard conversations outside the room and that he too was overheard talking to legal counsel while inside the room. In the circumstances of this case, the breach in question seriously undermined the accused’s s.10(b) Charter right to retain and instruct counsel. In the Judge’s view, the intrusion was significant. Following the Grant Test, the Judge excluded the Certificate of Analysis from the evidence.

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