For this post, I won’t get into alot of details surrounding the cases because the cases simply reaffirm existing case law in this area. The post is meant as a reminder to us, and to help instruct this year’s Police Squads 107 & 108.
R. v. Owens 2014 ONSC 7471 – Owens was convicted December 20, 2013 of, on November 10, 2012 operating a motor vehicle with blood alcohol in excess of the legal limit. The sole issue at trial and on this appeal was the admissibility of the breath samples. Owens submitted that the breath samples should have been ruled inadmissible as his s.10 (b) Charter rights were violated. Upon being arrested, Owens was advised by police of his rights to counsel. There was no issue that police complied with the informational components of that advice. Upon doing so, the arresting officer asked Owens “Do you wish to call a lawyer now?” Owens replied “No, not right now.” Owens was then transported to the police station where he was asked to and did provide samples into an approved instrument. Only after providing those samples was Owens asked again whether he wished to contact counsel. His reply at that time was “No, I have nothing to hide.”
The Honourable Gisele M. Miller said that the right to counsel is not absolute; a person detained by police must invoke the right and be reasonably diligent in exercising it: R. v. Bartle,  3 S.C.R. 173 at para. 18. However, the standard for waiver of a detained person’s 10(b) rights is very high: R. v. Prosper  3 S.C.R. 236; R. v. Clarkson  1 S.C.R. 383. Such a waiver must be clear and unequivocal and it must be given with full knowledge of both the rights being waived and the consequences of the waiver: Clarkson, Supra. Owens’ response to the question “Do you wish to call a lawyer now?” did not amount to a clear and unequivocal waiver. “Not right now” is not the same as an unequivocal “No.” Rather, it logically implies a future exercise of the right.”
As recently affirmed in R. v. Taylor 2014 SCC 50 at paragraph 31 “a police officer’s implementational duties under s. 10(b) are necessarily limited in urgent or dangerous circumstances” but it has also been clear since R. v. Prosper  S.C.J. No. 72 that in the context of impaired driving cases, 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. In this case, where the waiver is not obvious and unequivocal, it is incumbent upon us to explore the matter further to seek clarification of the response and give the Prosper warning. The other option would of been a “permissible fresh start” and effectively sever subsequent interactions from the earlier breach by the officer by asking Owens again if he wished to contact a lawyer upon their arrival at the police station, and before the taking of the breath samples; the latter option is a case-specific inquiry however.
In the end, Justice Miller excluded the breath test results from the evidence and Owens was acquitted.
The next case in this post is R. v. Briscoe 2015 ABCA 2 – the accused challenged his convictions for kidnapping, sexual assault, and first degree murder of a 13 year old girl; the events occurred in April, 2005. I will focus on the second ground of appeal – the admission into evidence of statements of the accused to the investigators. The accused argued that when the officer raised the possibility of providing a DNA sample and raised the possibility of whether he might consent to taking a polygraph test, he had his right to retain and instruct counsel re-engaged. This argument assumed there was then at least a prospect of a “non-routine procedure” taking place. Significantly, neither form of “non-routine procedure” actually took place. The officer asked if the accused would consent to these things, but nothing came of it. To reiterate R. v. Sinclair, 2010 SCC 35,  2 S.C.R. 310: “the right to counsel is essentially a one-time matter with few recognized exceptions” (para. 64); “it is helpful to indicate situations in which it appears clear that a second consultation with counsel is so required” (para. 49); (a) a new and non-routine procedure which involves the detainee such as participation in a lineup or submitting to a polygraph (para. 50); (b) a change in jeopardy (para. 51); (c) a reason to question the detainee’s understanding of their Charter s. 10(b) right (para. 52).”
One judge in the 3-panel decision said if the accused had, in his initial legal consultation, received advice against participating in a re-enactment or a lineup or against providing samples or against taking a polygraph examination, further advice from counsel would not have been required to assure his legal balance. In this case, the dealing between the police and the accused was an interview; no “new” procedure actually became involved. The other two judges, however, decided that if the requests, both to participate in a polygraph test, and to provide a DNA sample, are non-routine procedures, the police must first secure a detainee’s permission before proceeding, and it is at this point that he needs legal advice to make a meaningful choice as to whether or not to cooperate in these procedures. It is at the time the request is made that the right to counsel arises. Notwithstanding this breach of the accused’s Charter rights, however, the evidence was not excluded following the s. 24(2) analysis.