Monthly Archives: September 2016

Was the defendant’s right to consult counsel of choice violated?

R. v. Maciel 2016 ONCJ 563 – this impaired driving (refusal) case involved several issues, but this post will focus on one – the issue of consulting counsel of choice. Following the arrest, the officer informed Maciel of his right to counsel. He responded by indicating he wanted to call a lawyer. When asked if he had a specific lawyer that he wanted to contact, Maciel said “David Locke”. Rights to counsel were completed by 2:45 p.m. At that point, the officer read the primary caution to Maciel, followed by the breath demand. They arrived at the station at 3:05 p.m. Once at the division, he was subject to the ordinary booking procedures. At 3:09 p.m., the officer placed a call to Mr. Locke’s office phone number. The officer then placed a call to a second phone number that he believed to be Mr. Locke’s cellular phone number. There was no answer at either number, and the officer left a voice mail message at both requesting a call back. The officer did not note, nor did he recollect, where he obtained either of the numbers that he telephoned.

After leaving voice mail messages, the officer waited a few minutes for Mr. Locke to return his calls. At 3:12 p.m., he offered Maciel the opportunity to call duty counsel instead of Mr. Locke. Maciel declined, indicating that he wanted to speak with Mr. Locke. The officer testified that he thought it sensible to wait 20 or 30 minutes to receive a call back before making further efforts to contact counsel. The officer called the same two phone numbers again at 3:32 p.m. and 3:34 p.m. respectively. There was no answer at either number and he left further voice mail messages. At 3:35 p.m., the officer once more offered Maciel an opportunity to call duty counsel, which he again declined, still maintaining his desire to speak with Mr. Locke.

At 3:38 p.m. Maciel was moved into the breath room, where the breath tech took custody of him. The breath tech explained to Maciel the efforts that had been made to get a hold of Mr. Locke. He then offered Maciel the opportunity to call duty counsel. Once again, Maciel declined, indicating that he wanted to speak with his own lawyer. The breath tech then proceeded to read the formal breath demand to Maciel. He responded by indicating that he would prefer to wait for his lawyer. At that point, the breath tech explained the consequences of failing to provide a breath sample and told Maciel that waiting to speak to his lawyer was not a reasonable excuse given that the police had already waited a reasonable amount of time for counsel to call back. The officer again reiterated the demand, and Maciel again refused, citing his desire to speak with his lawyer first. They went back and forth like this a number of times, with Maciel saying at one point: “I understand that, you guys have been trying as much as you can, I would want to speak to my lawyer first; if you were in my shoes, you’d want to speak with your lawyer first too.” Finally, after clearly warning Maciel that he was being given one last chance, and Maciel responding, “I need to speak with my lawyer,” the breath tech indicated that he was interpreting his response as a refusal to provide a breath sample and informed him that he would be charged accordingly.

The Honourable Justice James Stribopoulos said it appeared from the evidence heard at trial that the practice of the Peel Regional Police is to make telephone calls to counsel on behalf of a person in custody who has asked to speak with either duty counsel or a specific lawyer. Those in police custody are not provided with a phone book, access to the Internet, and the use of a phone to contact counsel of their choosing. Rather, it is the police who make these efforts on behalf of persons in their custody. The Judge said this is in contrast to the practice elsewhere in the country, where the police discharge their duty to provide persons in custody with a reasonable opportunity to contact counsel by providing them with the means to do so. For example, in Alberta, those who assert their right to counsel are given access to a telephone, a lawyer’s directory, phone books and are even provided with access to the Internet. In contrast, the Peel Regional Police have assumed the responsibility of consulting such resources on behalf of persons in their custody who assert their right to consult a lawyer of their choosing.

Quite obviously, said the Judge, it was not his role to second-guess police operational procedures. And, to be clear, he did not believe there was anything constitutionally objectionable with the police assuming the responsibility of contacting counsel on behalf of those in their custody. That said, it is very much the function of the courts to assess the adequacy of police efforts in the discharge of their constitutional obligations. It follows, said the Judge, that if the police assume the responsibility of contacting counsel of choice on behalf of a person who is in their custody, then it is for the courts to assess the adequacy of those efforts. Of course, this begged the question as to what standard should be used in evaluating the adequacy of police efforts.

If the police do not assume this responsibility, those in detention would be expected to exercise reasonable diligence in contacting their lawyer of choice. Where the police take on this function on behalf of the detainee, it seemed eminently sensible to the court to subject their efforts to the same standard. Anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing. As Justice Horkins noted in R. v. Panigas [2014] O.J. No. 1244 at para. 52:

When the police, as an institution, decide to take control of the accused’s means of accessing counsel of choice, they also assume the obligation to pursue that constitutional right with all the same effort and diligence that the accused himself would apply.

In this case, the officer used the Internet to look up Mr. Locke’s office number on the Law Society of Upper Canada’s website. In addition, he conducted what he described as a “Google search” and managed to locate a second number for Mr. Locke (which turned out to be a home phone number). Messages were left at both of these phone numbers, first at around 3:10 p.m., and then again about twenty minutes later. Unfortunately, the officer did not actually look at the website maintained by Mr. Locke’s law firm. He had no explanation for failing to do so. If he had, he would have noted that like most business websites, it included a “Contact Us” link. Had he clicked on that link, he would have obtained both Mr. Locke’s e-mail address and his cell phone number, said the Judge.

In the Judge’s view, in an era when practically every lawyer and law firm has a website, that would be the most sensible starting point for anyone trying to get in touch with a particular lawyer. This is where a lawyer is most likely to share information with prospective clients about how to go about contacting them. As was the case with Mr. Locke, a criminal lawyer’s website will often note his or her cell phone number or e-mail address, which are both ideal ways to get a hold of a criminal lawyer, especially outside of ordinary business hours.

Where the police have assumed the responsibility to contact counsel of choice, the Judge thought it sensible to outline the sort of steps that should be undertaken to obtain counsel’s contact details in order to satisfy the reasonable diligence standard. In the Judge’s view, common sense suggests that at a minimum, this should include:

  • Asking the person in custody if they have a telephone number, or know anyone who has a telephone number, for the lawyer they want to contact;
  • Giving the person in custody access to their cellular phone or smart phone, where they advise that they have the lawyer’s number stored on such a device;
  • Conducting an Internet search to determine if the lawyer has a website and consulting any such website to locate a cellular phone number or e-mail address for the lawyer, and calling, texting, and/or e-mailing these;
  • Using the Internet to search any available online directories, for example Canada 411, CanadianLawList, or the Law Society of Upper Canada’s Paralegal and Lawyer Directory;
  • Using any available conventional paper based directories, both for lawyers and for phone numbers more generally (i.e. The White or Yellow Pages).

In this case, after considering the serious nature of the violation and the impact on Maciel’s constitutionally protected interests, while also remembering society’s interest in having the case adjudicated on its merits, the Judge believed that exclusion of the evidence would better serve the long-term repute of the administration of justice.

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The Importance of Making Notes

Every so often, a new case highlights the importance of notebooks and reminds us of the pitfalls and consequences of failing to make notes during an investigation (call). This latest case is not posted to serve as “case law” or precedent, but rather as a reminder to officers.

R. v. Fewer, [2016] N.J. No. 312 – Fewer was released on an undertaking given to a peace officer. The undertaking included a condition prohibiting Fewer from the “possession and consumption…of alcohol.” Subsequent contact with the police led to Fewer being charged with the offence of breach of undertaking, contrary to section 145(5.1) of the Criminal Code. At Fewer’s trial, a police officer testified that he had contact with Fewer and another individual. The officer testified that he smelled alcohol coming from Fewer’s breath. However, in the notes this officer made in relation to what occurred, there was no reference to Fewer being present, let alone any smell of alcohol being detected from him. Fewer argued that the absence of any reference to him in those notes should cause the court to doubt the reliability of the officer’s evidence.

Provincial Court Judge W. Gorman cited Wood v. Schaeffer, [2013] 3 S.C.R. 1053, where the the Supreme Court of Canada said police officers taking detailed notes should not be underestimated, indicating that it had “little difficulty” in concluding that police officers “have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation” (at paragraph 67).  He also cited R. v. Seguin, [2016] O.J. No. 3813 (C.J.), where it was noted that the “failure to contemporaneously record important information may result in the court being unable to accept the viva voce evidence in that regard” (at paragraph 41).

At trial, the officer testified that on the day in question, he was assisting a fellow officer and he heard someone “screaming” from inside the other officer’s police vehicle. He indicated that he opened the back door of the vehicle to see what this person “wanted” and to “see what was wrong.” He testified that he could “smell alcohol on [this person’s] breath” and that he was “upset.” The officer did not describe whether the smell was a strong or weak one. He did not indicate how close he came to Fewer, whether he spoke to Fewer, or whether Fewer spoke to him.

On cross-examination, the officer was referred to the notes he made concerning this incident. The notes referred to Mr. C; to Mr. C being advised of his right to contact counsel; a smell of alcohol coming from Mr. C; and Mr. C being arrested. However, the notes contained not a single word in relation Fewer. Judge Gorman was concerned about the lack of reference to Fewer in the officer’s notes. The officer took the time to make notes concerning his contact with Mr. C, but as pointed out earlier there was not one word spared for Fewer. As a result, the officer had to rely entirely on his memory. The entirety of the officer’s evidence left the Judge with a reasonable doubt as to whether he smelled alcohol coming from Fewer. The charge laid against Fewer was dismissed.

If interested, other cases such as R. v. Zack, [1999] O.J. No. 5747 (C.J.), R. v. Makhota, [2004] O.J. No. 5415 (C.J.) and R. v. Bailey, [2005] A.J. No. 790 had similar findings that evidence “not contained in officer’s notes may be suspect or given less weight”. This does not mean that every time an officer’s notes are found wanting that that officer’s evidence will be suspect (see R. v. Gill, 2015 ONSC 7872, at paragraph 45 and R. v. Broxterman, 2016 ONCJ 285, at paragraph 17), but why risk it…

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