Section 10(b) Charter – Rights to Counsel – the Implementational Facet

Two cases out of the Ontario Courts have again examined whether the police complied with the implementational facet of s. 10(b) of the Charter:

R. v. Anikhovskiy 2014 ONCJ 664 – following a “Fail” of the ASD, the accused was arrested for driving while his ability to do so was impaired by alcohol. The officer read him his rights to counsel, which he understood, and advised “No” to wanting to speak with a lawyer. The officer in charge effectively repeated the defendant’s right to counsel. For the first time, the defendant indicated that he wished to speak to a lawyer. The defendant told the officer of a “friend” who he thought was a lawyer; he seemed uncertain. The officer retrieved the defendant’s cell phone from his jacket and wrote the number and the friend’s name, “Harvey”, in her notebook when the defendant located it. She stepped out of the interview room and dialed the number. She reached a generic voicemail message, in a male voice, advising that she had reached the dialed number and inviting her to leave a message. The recorded message did not identify a law firm or provide an alternative or referral number. To the officer, it seemed more like a personal than a business voicemail. She left a message explaining that the defendant was at Traffic Services, along with the station’s front desk phone number.

The officer then returned to the interview room. In direct examination, she indicated that she briefed the defendant about what had occurred and informed him that she would put him in touch with “Harvey” if he called back. Within the same 1-2 minutes, she asked the defendant if he would like her to call duty counsel; he did. The officer immediately placed the call. Duty counsel called back and engaged in a private conversation with the defendant for about 4 minutes. The officer then escorted the defendant to the breath room. The defendant did not express any dissatisfaction with his conversation with duty counsel. The officer did not recall the defendant subsequently asking about or otherwise referring to “Harvey”. She never advised the defendant that he could not speak to anyone else because he had spoken to duty counsel. The defendant provided two suitable samples of breath and failed.

Persons detained by the police must be informed forthwith of their right to consult a lawyer and, if they elect to do so, promptly afforded such opportunity (R. v. Willier, [2010] 2 S.C.R. 429). As cited in R. v. Kumarasamy (2002), 22 M.V.R. (4th) 234 (Ont. S.C.J.), at para. 25:

In the vast majority of cases, once the detainee has expressed a desire to contact counsel, police must facilitate the detainee’s efforts to do so: R. v. Brydges (1990), 53 C.C.C. (3d) 330 (S.C.C.). This obligation includes facilitating contact with counsel of choice where a request has been made to speak to a specific counsel. This is so whether the person has counsel’s number available or not. It also includes permitting a phone call to a friend or relative to obtain the name of counsel of choice.

Justice Melvyn Green excluded the defendant’s breath test readings following the Grant test, citing that the officer tried too hard to back-fill the increasingly apparent gaps in a narrative of compliance with s. 10(b)-implementational obligations. At paras 18-19:

What remains is [the officer] telling the defendant she left a callback number on Harvey’s voicemail and, within the same minute, asking the defendant if he wished to call duty counsel, an offer he accepted. There was nothing urgent about the circumstances, yet [the officer] made no inquiry as to whether the defendant wished to try and contact someone else. She did not convey her doubts about whether the number he provided connected to a lawyer. She made no effort to confirm that she had recorded the number accurately. She did not endeavour to reverse-search the number. She did not place or even offer to place a second call. She did not positively inform the defendant that he had a right to a reasonable opportunity for the callback or to a further out-call, to Harvey or someone else. She could not even recall if the defendant had requested waiting for a callback from Harvey before she proposed contacting duty counsel. In short, the defendant, dependent on [the officer] to facilitate his access to counsel of choice, was deprived of the knowledge he required to make an informed decision whether to continue to pursue his effort to reach personal counsel or accept the public alternative.

As said in R. v. Taylor, supra, at para. 33, “Barriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel” (emphasis in original). Those “proactive steps” were not here taken. They were replaced by a perfunctory nod to the obligations imposed by s. 10(b). “The availability of duty counsel 24 hours a day cannot”, as put in R. v. Kumarasamy, supra, at para. 21, “be used to trump a detainee’s right to counsel of choice”. The defendant’s s. 10(b) rights were infringed.

In R. v. Swaine 2014 ONSC 7049, the Trial Judge convicted the driver of operating a motor vehicle having consumed alcohol in such quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(b) of the Criminal Code. He appealed that conviction on the basis that he did not give a clear and unequivocal waiver to counsel rights. The ONSC allowed the appeal and ordered a new trial.

The driver registered a “Fail” of the ASD and was subsequently arrested and taken back to the police station for breath tests.  The arresting officer testified that he had provided rights to counsel to the accused at the roadside after arresting him and that the accused indicated that he understood and did not wish to call a lawyer. The focus then turned to the officer’s dashpad notes. They had entries “RTC” and “lawyer”. Then, there was something scratched out, with “no” on top of it. The officer said that he had scratched out the word “no”. He had asked the driver if he wanted to speak to a lawyer, but could not explain why the original “no” was scratched out. The arresting officer turned the driver over to a qualified technician. Among other things, the arresting officer advised the tech that the driver did not wish to speak to duty counsel or a lawyer. Notwithstanding this, before beginning the breath testing, the tech addressed the driver’s rights to counsel again. The driver’s response, according to the tech, was, “(h)e began to say to me something about possibly wanting it and then he paused and said, and I quoted it, wrote it down immediately, he said, “You know what? … fuck it””. The tech indicated he took that to mean that the driver was initially “waffling” like he was unsure, but that it became clear that the driver did not want to speak to a lawyer. He proceeded with the breath tests.

The accused’s evidence was that he had wanted to speak to a lawyer and had made that known to police as soon as the arresting officer read him his rights. Specifically, he had wanted to call his wife, who was a lawyer, and did not need duty counsel. He was denied the use of his cell phone for this at the roadside and again later. After the tech had advised him of his rights to counsel and asked, the driver had indicated that he had better (make a call). However, the tech had continued with the test preparations. As the accused said, “… we just kept going on with the, you know, all the instructions and whatnot of the breathalyzer and I just, I was frustrated. I just, fuck it, you know? Nobody is paying attention to me here, obviously”. He testified that he had never told police that he did not want to talk to a lawyer.

“Once a detainee has indicated a desire to exercise his rights to counsel, the state is required to provide him with a reasonable opportunity in which to do so. In addition, state agents must refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel.” (R. v. Prosper, [1994] 3 S.C.R. 236, at paragraph 34. See also R. v. Willier, [2010] 2 S.C.R. 429). The standard for waiver of one’s right to counsel is very high. Furthermore, where a detainee has asserted right to counsel, but then indicates a change of mind, further information, known as a “Prosper warning” must be given by the police. The burden of proof of that change of mind and an unequivocal waiver is on the Crown (R. v. Prosper paragraphs 43 and 44, R. v. Willier paragraphs 29 through 35).

At para 19, Justice J.A.S. Wilcox stated:

The Crown submitted in the alternative that, if a waiver was in fact necessary, there was a clear and unequivocal one. Again, with respect, I disagree. Instead, I agree with the defence that the expression “fuck it” is equivocal and capable of supporting many interpretations. In the circumstances, and given the importance of the right at stake, I think it was incumbent on the police to explore the matter further to get clarification following the utterance of the impugned phrase and to give a Prosper warning. This would also follow, in theory, from the trial judge’s adverse inference against the Crown, but [the tech] would have had no way of knowing that at the time. With respect, I find that it was an error to find there was a waiver of the right to counsel prior to the breath tests being taken.

Justice Wilcox said the phrase was not an expression of waiver, but rather one of frustration, or even of resignation. The appeal was allowed and the matter was remitted to the Ontario Court of Justice for a new trial.

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Filed under Impaired Driving, Section 10 Charter

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