Accused referred to duty counsel minutes after call to counsel of choice’s office went to voicemail.

R. v. Losier 2016 NBQB 213 – Losier, a former police officer, had been found guilty of having the care or control of a motor vehicle; he appealed his conviction. The accused had clearly expressed his desire to speak with the lawyer of his choice, so an officer called the lawyer’s office at the number which appeared in the yellow pages of the telephone directory. Not surprisingly, given that it was past midnight, the call went to his voice mailbox. One or two minutes later, the officer called the number for Legal Aid and left a message. Four minutes later, a lawyer from Legal Aid returned her call and Losier was able to speak with a lawyer.

The court said calling a lawyer’s office at night and reaching his voice mailbox is not sufficient to show that a reasonable effort has been made. The police officer could have tried, among other things, to find [the lawyer’s] home phone number or asked Losier if he knew of a way to reach the lawyer of his choice. Between the time the call was placed by the officer to the lawyer of choice’s office and the end of Losier’s conversation with the Legal Aid lawyer, only eight minutes elapsed. This was a short lapse of time for Losier to clearly waive his right under s. 10(b) of the Charter, said the court. Approximately one minute elapsed between the time the call was placed to the lawyer of choice’s office, which went unanswered, and the initial call was placed to Legal Aid. The accused did not have a long time to think about his right and the police officer did not offer him another opportunity to contact him or another lawyer of his choice. She did not even advise him that this was a possibility. Moreover, it was clear from her testimony, in which she stated that she had never called a lawyer in the middle of the night before, that it was not her intention to do so that night either.  The trial judge found:

To simply place a call to a lawyer’s office in the middle of the night, on a weekend no less, a call that went to the voice mailbox, and less than a minute later to offer a lawyer, another lawyer that was not the lawyer of his choice, such a scenario is very far from being reasonable and logical. Nothing constituted compelling or urgent circumstances. Jurisprudence has correctly held that the right to counsel, including the right to consult with the lawyer of one’s choice, takes precedence over the Crown’s right to rely on […] the presumption of identity under s. 258(1)(c) of the Criminal Code of Canada. Moreover, the two-hour limit to take advantage of this presumption had far from expired. […] In this case, therefore, the accused did not have a reasonable opportunity to reach the lawyer of his choice.

Nonetheless, the trial judge did not find that the accused’s right under s. 10(b) of the Charter had been breached:

The issue now is to determine if the accused in this case waived his right to consult with the lawyer of his choice by agreeing to speak with a lawyer from Legal Aid and by informing the officer that he was satisfied with their conversation. Regardless of the fact that the accused had been a police officer, even if he had been a lawyer […] specializing in criminal law, particularly in the area of impaired driving, no one, in these circumstances, can be one’s own best legal advisor, especially given that there was a real possibility that his judgment was impaired as a result of having consumed drugs or alcohol. Everyone has the right to receive the advice of a lawyer, including the lawyer of one’s choice. However, one must take into account the version of the accused, who testified to having been a police officer. As per his experience as a police officer, the accused were given ample time to contact the lawyer of their choice, before it was suggested to them that they contact another lawyer, one from Legal Aid for example. In his own words, the accused testified that they did not ask him, that they politely suggested contacting Legal Aid, and he agreed to it, that he was not there to cause trouble for anyone, that nothing would be gained by insisting or arguing. Then, after speaking with the lawyer from Legal Aid, he frankly admitted that he had been satisfied with the consultation he had had with the lawyer that the officer had suggested to him. Given his experience and knowledge, and that his discussions with the police had been cordial and polite, something he himself admits, one could expect that he would have told them about his concern regarding the fact that he was not afforded a reasonable amount of time to contact [the lawyer of his choice]….

The NBQB disagreed, ruling Losier’s right to retain and instruct counsel without delay and to be informed of that right was breached. The court was also of the view that the judge erred in law when he concluded that the accused had waived his right to counsel. He also committed an error of law when he based his finding on the accused’s experience as a police officer as well as on the discussions between the accused and the police officers, which were cordial.

The qualified technician’s certificate was excluded from evidence and an acquittal entered on appeal.

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