COURT OF APPEAL FOR ONTARIO
O’CONNOR A.C.J.O., WEILER and ABELLA JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Anthony Rein,
for the appellant
Respondent
Leanne Salel,
- and -
for the respondent
DAVID RICHFIELD
Appellant
Heard: July 4, 2003
On appeal from the decision of Justice Clair Marchand of the Summary Conviction Appeal Court dated July 22, 2002, setting aside the acquittal entered by Justice Jon‑Jo Douglas dated December 3, 2001.
WEILER J.A.:
1We dismissed this appeal at the conclusion of the argument and indicated that the reasons would follow. These are the reasons.
2The issues in this case are whether the right of the appellant, Mr. Richfield, to counsel under the Canadian Charter of Rights and Freedoms s. 10(b) was breached and whether the evidence obtained as a result of that breach ought to be excluded pursuant to s. 24(2) of the Charter.
A. The Background
3The underlying facts are succinctly summarized in the Crown’s factum at paras. 4, 5 and 6, as follows:
On April 16, 2001, at 1:00 a.m., the appellant was arrested by Constable McCrea after failing a roadside breath screening test. At 1:07 a.m., the appellant was advised of his right to retain and instruct counsel without delay and he indicated that he understood that right. He then stated that he wished to speak with a particular lawyer (Lonnie Mark). At 1:09 a.m., the officer read him the caution and the breath sample demand.
Constable McCrea then transported the appellant to Barrie Police Service in order to facilitate the breathalyser demand, arriving at 1:35 a.m. At 1:42 a.m., after the appellant was paraded before the duty sergeant, Constable McCrea placed a phone call for Mr. Mark, having located a phone number from the Lawyers’ Handbook. He received the answering service for Mr. Mark which was staffed by a live person. Constable McCrea left a message with that person with the information of the appellant’s arrest. Anticipating a quick call back from the answering service or Mr. Mark, Constable McCrea placed the appellant in the print room, next to the booking room. After waiting 20 to 30 minutes, Constable McCrea placed the appellant in a cell and attended to the administrative duties of the case.
Constable McCrea retrieved the appellant from the cell at 2:44 a.m. At that point, one hour and 45 minutes had lapsed from the time of the arrest and there had been no call back from Mr. Mark or the answering service in the hour since the call had been placed. Constable McCrea advised the appellant that his lawyer had not called back and he asked if he would like to speak to duty counsel. The appellant stated that he did not want to speak to duty counsel; he only wanted to speak to Mr. Mark. Constable McCrea advised the appellant that a demand was going to be made shortly to provide samples of his breath and if he was going to get advice from counsel that he should do so now prior to the demand. He further explained that duty counsel is a lawyer that is provided by the government free of charge, that they can be contacted 24 hours a day, and it is specifically set up for people in his situation to get advice before they make decisions that may affect him. The appellant disregarded that advice. Conscious of the two hour period within which a breath sample had to be taken in order for the prosecution to be able to rely on the evidentiary presumption in section 258(1)(d) of the Criminal Code, R.S.C. 1985, c. C-46, and in the face of these refusals, he handed the appellant over to Constable Middleton, the breath technician. At Constable Middleton’s request, the appellant agreed to provide the breath samples. When Constable Middleton handed the appellant back, counsel still had not phoned.
4The trial judge found that there was a breach of the appellant’s right to counsel of his choice and held that the breathalyzer results should be excluded under s. 24(2) because the admission of the results would be contrary to R. v. Stillman (1997), 1997 384 (SCC), 113 C.C.C. (3d) 321 (S.C.C.). As a result of the evidence being excluded, the appellant was acquitted.
5On the Crown’s appeal from the appellant’s acquittal, the summary conviction appeal judge upheld the trial judge’s finding that the appellant’s right to counsel had been breached. Although he did not specifically say that the trial judge erred in principle in relation to his s. 24(2) analysis, it was implicit in his conclusion that he considered that the trial judge had done so. The summary conviction appeal judge considered the three factors applicable to a s. 24(2) analysis, namely: (i) the fairness of the trial; (ii) the seriousness of the Charter violation, and, as he put it, (iii) the possibility that the administration of justice could be brought into disrepute by excluding the evidence even though it was obtained in violation of the Charter. He held that the evidence should be admitted and directed a new trial. The appellant appealed.
B. The Right to Counsel
6A person detained by the police must be provided with a reasonable opportunity to exercise the right to counsel, and, except in cases of urgency or danger, the police must refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity. The detained or arrested person who is offered the opportunity to contact counsel and asserts his right to a “particular counsel” must, however, exercise the right diligently. R. v. Bartle (1994), 1994 64 (SCC), 92 C.C.C. (3d) 289 (S.C.C.) per Lamer C.J.C. at 301; R. v. Brydges (1990), 1990 123 (SCC), 53 C.C.C. (3d) 330 (S.C.C.) per Lamer J. at 341; R. v. Smith (1989), 1989 27 (SCC), 50 C.C.C. (3d) 308 (S.C.C.) per Lamer J. at 313; R. v. Black (1989), 1989 75 (SCC), 50 C.C.C. (3d) 1 (S.C.C.) per Wilson J. at 13-14.
7Whether legal advice has been sought diligently by the detained person depends on the context of the situation. The element of reasonableness in furnishing a detainee with the opportunity to retain and instruct counsel necessarily excludes the concept of an absolute right to counsel of choice. As Lamer J. (as he then was) noted in R. v. Ross (1989), 1989 134 (SCC), 46 C.C.C. (3d) 129 (S.C.C.) at 135:
Although an accused or detained person has the right to choose counsel, it must be noted that, as this court said in R. v. Tremblay (1987), 1987 28 (SCC), 37 C.C.C. (3d) 565 (S.C.C.), a detainee must be reasonably diligent in the exercise of these rights, and if he is not, the correlative duties imposed on the police and set out in Mannien (1987), 1987 67 (SCC), 34 C.C.C. (3d) 385 (S.C.C.), are suspended. Reasonable diligence in the exercise of the right to choose one's counsel depends upon the context facing the accused or detained person. On being arrested, for example, the detained person is faced with an immediate need for legal advice and must exercise reasonable diligence accordingly. By contrast, when seeking the best lawyer to conduct a trial, the accused person faces no such immediacy. Nevertheless, accused or detained persons have a right to choose their counsel and it is only if the lawyer chosen cannot be available within a reasonable time that the detainee or the accused should be expected to exercise the right to counsel by calling another lawyer.
8In considering whether the appellant has been given a reasonable opportunity to exercise the right to counsel and has acted exercised this right with reasonable diligence, the existence of 24 hour duty counsel services is a crucial factor that must be considered. In R. v. Brydges, supra at 350-351, the Supreme Court of Canada recognized that the existence of a duty counsel system may affect what constitutes “reasonable diligence”:
Indeed, if the purpose of s.10(b) is to assist initially persons upon their being detained as regards their rights and as regards their exercise thereof, we might well have to put time‑limits, not on access to counsel, but on access to counsel of one's choice. It may be that it is unreasonable not to seek the advice of available counsel when the only one available is either duty counsel or a Legal Aid Lawyer. We must not, as a court, lose sight of the realities of crime investigation and the functioning of modern police forces of varying sizes, with shifts, labour agreements and limitations put on overtime for financial considerations of course, but also, if not more important because police officers have a right to a personal and family life. Waiting for eight to ten hours for counsel of the detainee's choice to become available may not be justified in a purposive approach when duty counsel has been available all along... [A]s a corollary to the obligation imposed on the police to inform detainees of the existence and availability of duty counsel services and Legal Aid plans, there may have to be an adjustment to the meaning of “reasonable diligence” [ emphasis added].
9Similarly in R. v. Prosper (1994), 1994 65 (SCC), 92 C.C.C. (3d) 353 (S.C.C.) at 367 and 375, Chief Justice Lamer, for the majority, held:
In addition, provision of duty counsel would seem to offer concrete benefits to law enforcement authorities and to the courts. That is, not only does ensuring that legal advice is available at the outset save time and allow police to proceed more quickly with their investigatory work and with laying charges, but also it is likely to facilitate the admission into evidence of various statements made to police by detained persons. “Brydges duty counsel” is also likely, at least in the long run, to be cost efficient. It would decrease the overtime costs associated with having police “hold off” to provide the necessary "reasonable opportunity" to contact counsel and, by reducing the number of motions which centre around ss.10(b) and 24(2) of the Charter, would help to save on court resources.
In my view, what constitutes a “reasonable opportunity” will depend on all the surrounding circumstances. These circumstances will include the availability of duty counsel services in the jurisdiction where the detention takes place. As the majority in Brydges suggested (at p.350), the existence of duty counsel services may affect what constitutes “reasonable diligence” of a detainee in pursuing the right to counsel, which will in turn affect the length of the period during which the state authorities' s.10(b) implementational duties will require them to “hold off” from trying to elicit incriminatory evidence from the detainee [emphasis added].
[10] The trial judge in this case failed to appreciate the significance of the availability of duty counsel as a factor in determining whether the appellant exercised his right to counsel with reasonable diligence in making his ruling that there was a breach of the appellant’s s. 10(b) Charter rights. In so doing, the trial judge committed a palpable and overriding error and the summary conviction appeal judge erred in upholding his decision.
11It may be that initially the police were not as diligent as they could have been in facilitating the appellant’s access to counsel of his choice after calling the lawyer’s number and getting the answering service. They could have called the lawyer’s number again or tried to find his home telephone number in the phone book. However, the police waited for over an hour for the lawyer to call back and during that time the police refrained from making any further demands upon the appellant. More importantly, the police followed up in trying to make counsel available to the appellant. When the lawyer had not phoned back, the police offered the appellant the assistance of duty counsel.
12The appellant, upon being informed that the lawyer that he had asked the police to call had not called back, did not ask to make a further call to his counsel of choice or to another counsel. When asked if he wished the assistance of duty counsel, the appellant indicated that he did not. The appellant was not reasonably diligent in exercising his right to counsel in the circumstances. The fact that the police could have made greater efforts earlier does not detract from the appellant’s own lack of diligence at a later stage in exercising his right to counsel.
13At trial, the officer was asked what he would have done had the appellant indicated that he wanted to speak to duty counsel, that is, whether the officer would have waited before making a demand that the appellant give a sample of his breath. This question called for speculation on the part of the officer and the answer has no bearing on this appeal.
C. Section 24(2)
[14] Because of our decision that there was ultimately no breach of the appellant’s s. 10(b) Charter right, it is unnecessary to decide whether the evidence should have been excluded pursuant to s. 24(2) of the Charter. We note, however, that in giving his reasons why the evidence should not be excluded pursuant to s. 24(2), the summary conviction appeal judge observed that the appellant did not really have much choice about providing a breath sample because even if he had contacted a lawyer, he would have been given the advice to submit to a breathalyzer. This was not a proper consideration and ought not to have formed part of his s. 24(2) analysis: R. v. Bartle, supra, at 319-320.
15On the other hand, in considering whether to admit the evidence under s. 24(2), the summary conviction appeal judge considered and balanced the three factors that normally form part of the s. 24(2) analysis. The trial judge did not go through the analysis of the three groups of factors because he considered that he was compelled by Stillman to automatically exclude the evidence.
16In Stillman, Cory J., writing for the majority, said that the compelled provision of bodily substances in breach of Charter rights for purposes of self-incrimination will generally result in an unfair trial and, therefore, the evidence should be excluded. However, Cory J. pointed out at p. 356 of Stillman that some procedures, such as fingerprinting and breath samples, are so unintrusive and so routinely performed that, even when performed as a result of a Charter violation, they may be an exception to the general exclusionary rule for conscripted evidence. This is because the Criminal Code provisions pertaining to breath samples are “both minimally intrusive and essential to the control of the tragic chaos caused by drinking and driving.”
17The summary conviction appeal judge specifically referred to the passage in Stillman in which Cory J. addressed the minimally intrusive nature of the provision of breath samples. It is apparent that the summary conviction appeal judge concluded that the breach of the appellant’s Charter right was minor and that the intrusion upon the appellant’s dignity and privacy was minimal.
[18] The general rule that conscripted evidence obtained in violation of an accused’s s. 10(b) Charter rights should automatically be excluded because it impacts on trial fairness has the advantage of predictability. This general rule may, however, provide a disproportionate remedy when the resulting Charter violation is minimal. See D.M. Paciocco, “Stillman, Disproportion and the Fair Trial Dichotomy under Section 24(2)” (1997) 2 Can. Crim. L.R. 163. In Stillman, Cory J. also commented, at p. 351, that although the admission of conscriptive evidence would generally render a trial unfair, “[t]hat general rule, like all rules, may be subject to rare exceptions.” Other obiter comments by the Supreme Court, in R. v. Fliss (2002), 2002 SCC 16, 161 C.C.C. (3d) 225 at 247-8 and R. v. Law (2002), 2002 SCC 10, 160 C.C.C. (3d) 449 at 465, suggest that the Supreme Court may be prepared to modify its approach to the automatic exclusion of conscriptive evidence obtained through a minor breach of Charter rights. See also P. Cory, “General Principles of Charter Exclusion (Exclusion of Conscriptive and Non-Conscriptive Evidence)” (1998) 47 U.N.B.L.J. 229 at 236. That said, as we have indicated, it is unnecessary for us to decide whether the summary conviction appeal judge’s conclusion that the trial judge erred in excluding the evidence under s. 24(2) was correct and we do not do so.
D. Disposition
[19] Having concluded that the appellant’s s. 10 (b) Charter rights were not breached, I would therefore dismiss the appeal.
RELEASED: Aug 19, 2003 Signed: “Karen M. Weiler J.A.”
“KMW” “I agree Dennis O’Connor A.C.J.O.”
“I agree R. S. Abella J.A.”
