Her Majesty the Queen v. Fitzsimmons [Indexed as: R. v. Fitzsimmons]

84 O.R. (3d) 266

Court of Appeal for Ontario,

Labrosse, Weiler and Sharpe JJ.A.

December 21, 2006

Charter of Rights and Freedoms -- Right to counsel -- Counsel questioning breathalyzer technician about why accused was stopped -- Technician refusing to discuss investigation with counsel -- Technician being under no obligation to answer counsel's questions before counsel spoke to accused -- Defence not establishing that there was any information necessary to giving of legal advice that could not have been obtained by other means such as asking accused -- Accused's right to counsel not being unduly limited by technician's refusal to answer questions -- Crown appeal from summary conviction -- Appeal allowed.

The accused was charged with driving over 80 and impaired driving. When the arresting officer was unable to reach the accused's counsel of choice, the accused declined an offer to consult another lawyer and was handed over to a breathalyzer technician. At the accused's request, the technician made further attempts to reach the accused's counsel of choice and did so. Counsel asked the technician questions about the investigation, including why the accused had been stopped and whether there was an accident. The technician refused to discuss the investigation with him. The accused then consulted with counsel, answering questions about the circumstances of his arrest. The trial judge found that the accused's right to counsel was not violated by the technician's refusal to answer counsel's questions. The accused was convicted of driving over 80 and the impaired driving charge was stayed. The summary conviction appeal judge allowed the accused's appeal, holding that the information sought by counsel from the technician did not impose an onerous burden and the decision to withhold the information unduly limited the accused's right to counsel. The Crown appealed.

Held, the appeal should be allowed.

Counsel's obligation was to first consult with his client and to ask him what he needed to know in order to advise him. He did not do so. The technician was under no obligation to answer counsel's questions before counsel spoke to the [page267] accused. To place such an obligation on a breathalyzer technician is impractical and could seriously interfere with the officer's ability to carry out his duties. The burden was on the accused to prove on a balance of probabilities that he had not been able to exercise his s. 10(b) rights in a meaningful manner. It was not established that there was any information necessary to the giving of legal advice that counsel could not have obtained by other means such as by asking his client.

APPEAL from the judgment of Roccamo J., 2005 46091 (ON SC), [2005] O.J. No. 5335, 140 C.R.R. (2d) 48 (S.C.J.), allowing an appeal from a conviction for driving over 80.

Cases referred to R. v. Stenset, 1999 ABCA 109, [1999] A.J. No. 375, 70 Alta. L.R. (3d) 45, [1999] 10 W.W.R. 350, 135 C.C.C. (3d) 112, 45 M.V.R. (3d) 153 (C.A.), consd Other cases referred to R. v. Fitzsimmons, 2005 46091 (ON SC), [2005] O.J. No. 5335, 140 C.R.R. (2d) 48, 29 M.V.R. (5th) 132 (S.C.J.); R. v. Sherwood, [1991] B.C.J. No. 4041, 29 M.V.R. (2d) 21 (S.C.) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 10(b), 24(2) Criminal Code, R.S.C. 1985, c. C-46, s. 253(b)

Philip Perlmutter, for appellant. Clayton Fitzsimmons, respondent in person.

The judgment of the court was delivered by

WEILER J.A.: --

Nature of the Appeal

[1] The Attorney General of Ontario applies for leave to appeal, and if leave is granted, appeals the order of the summary conviction appeal judge allowing the respondent Clayton Fitzsimmons's appeal and quashing his conviction on the charge of driving over 80 pursuant to s. 253(b) of the Criminal Code, R.S.C. 1985, c. C-46. The summary conviction appeal judge also entered an acquittal with respect to a charge of impaired driving arising out of the same factual situation that had been stayed by the trial judge.

[2] The Crown seeks to have the conviction restored and raises two issues. The substantive issue is whether counsel for an accused person, who is being detained for a breathalyzer test, has the right to interrogate and receive answers from the breathalyzer technician, prior to giving his client advice. The second issue concerns the difference between conditional and judicially imposed stays.

Facts

[3] At approximately 10:52 p.m. on June 17, 2003, Officer Wyers of the Ottawa Police Service was dispatched to locate a [page268] possibly intoxicated driver. He was provided with a licence plate number and attended at the registered owner's address. He saw a vehicle approach the address, making a wide turn into oncoming traffic and swerving before entering the driveway. The vehicle struck a decorative rock as it came to a stop.

[4] Wyers approached the driver (Fitzsimmons) and noticed that his breath smelled of alcohol, he was unsteady on his feet, he had glassy eyes and he had slurred speech. Fitzsimmons denied having consumed any alcohol.

[5] When asked to produce his licence, ownership and insurance, Fitzsimmons searched the front of his vehicle, the glove box and the trunk, before eventually locating his wallet in a golf bag. While looking for his licence, he almost fell on the asphalt.

[6] At 10:58 p.m., Wyers demanded a sample for an approved screening device. The sample registered a fail at 11:02 p.m. Wyers then arrested Fitzsimmons for impaired driving, read him his rights, cautioned him and gave a breath demand at 11:08, 11:12, 11:14, 11:15 and 11:16 p.m. respectively.

[7] En route to the police station Fitzsimmons told Wyers he had consumed two beers.

[8] Wyers and Fitzsimmons arrived at the police station at 11:29 p.m. At 11:49 p.m., Wyers tried to contact the lawyer Fitzsimmons requested but had to leave a message. Fitzsimmons declined an offer to consult another lawyer and signed a right to counsel waiver form. Wyers handed him over to a qualified technician, Constable Ritchie, at 12:15 a.m. Between 12:16 and 12:19 a.m., Ritchie reiterated the breath demand, cautions and right to counsel.

[9] At Fitzsimmons's request, Ritchie made two more attempts to contact Fitzsimmons's first choice of lawyer before reaching Lawrence Greenspon, his second choice, at 12:28 a.m. Greenspon asked Ritchie questions about the investigation, including why Fitzsimmons had been stopped and whether there had been an accident.

[10] Ritchie refused to discuss the investigation with him and told Greenspon he was not the arresting officer. Greenspon told Ritchie that he could not give Fitzsimmons proper advice unless he was given the reasons for the stop and the grounds for it. He noted Ritchie's refusal to answer his questions.

[11] Fitzsimmons then consulted with Greenspon over the phone in private until 12:36 a.m., answering Greenspon's questions the best he could regarding the circumstances of the arrest.

[12] At trial, Fitzsimmons applied for an order pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms excluding all evidence obtained from him following alleged breaches of [page269] his ss. 7 and 10(b) rights: (1) the failure of the police to facilitate Fitzsimmons's right to retain and instruct counsel by not assisting Greenspon; (2) the failure to cease questioning Fitzsimmons until after he had an opportunity to consult counsel of his choice; (3) the failure of the police to advise Fitzsimmons of their duty to hold off questioning.

[13] Greenspon testified that his advice to Fitzsimmons was based on what Fitzsimmons told him, as opposed to information Greenspon wished to obtain about what was in the mind of the arresting officer. Greenspon also said the time of the incident was important to the advice he had to give and that he had not been given this information by the police. Fitzsimmons testified at trial that he could not recall Greenspon asking him about the time or how long he had been at the police station. Greenspon confirmed he did not ask Fitzsimmons the time of the incident. Greenspon's evidence was that the detainee's evidence in this regard is often unreliable. In the result, Fitzsimmons testified that he did not feel that he had received complete advice from Greenspon, especially on the question of whether or not he had to give a breath sample.

[14] The trial judge denied the applications, holding that Ritchie was not obliged to answer counsel's questions before speaking to Fitzsimmons and that Fitzsimmons had failed to establish on a balance of probabilities that his rights were violated.

[15] After the evidence was deemed admissible, the defence called no evidence, at which time the trial judge convicted Fitzsimmons of driving over 80 but stayed the impaired driving charge on the grounds that he could not find him guilty of both offences.

[16] On Summary Conviction Appeal, the summary conviction appeal judge concluded that the information sought from Ritchie by Greenspon did not impose an onerous burden and the decision to withhold the information unduly limited Fitzsimmons's right to counsel. She ordered a new trial. With regard to the impaired driving charge, the summary conviction appeal judge held that the trial judge had never found Fitzsimmons guilty of that charge and that the trial judge therefore did not have jurisdiction to impose a conditional stay. The summary conviction appeal judge concluded that the judicial stay of proceedings amounted to an acquittal and she declined to remit the stayed charge back for a new trial.

Analysis

[17] Upon arrest the police have an obligation to provide the detainee with the reason for his arrest, advise him of the right to [page270] counsel, and to provide him with an opportunity to exercise that right. In this case, instead of consulting with his client, counsel for the detainee insisted on speaking to the breathalyzer technician first and the technician's refusal to answer counsel's questions formed the basis of the alleged infringement of Fitzsimmons Charter rights. Further, although counsel claimed that he needed the information from the breathalyzer technician in order to properly advise his client, he did not seek to obtain this same information from his client.

[18] Counsel's obligation was to first consult with his client, the detainee, and to ask him what he needed to know in order to advise him. This he did not do. In R. v. Stenset, 1999 ABCA 109, [1999] A.J. No. 375, 135 C.C.C. (3d) 112 (C.A.), a decision with which we agree, the court stated, at paras. 10-13:

Counsel for the accused appellant postulates that a lawyer consulted has a broad right to question the constable who telephones, about all the grounds which the constable thinks give him reasonable and probable grounds to demand a breath sample. As he argued it, such right would not be conditioned upon any lack of knowledge [by the client]. Nor would it be confined to a recital of specific facts.

There is no such evidence here, [that the appellant driver lacked any relevant information or that he was incapable of telling his lawyer what he knew] so I need not reach a conclusion on the law applicable in such different fact situations. But it is at least arguable that the police have no duty to tell the lawyer what he already knows, nor what he could easily learn by simply asking the driver who is consulting him. For example, suppose that a driver knows that he has been drinking very recently, has driven thereafter, has blown into a roadside breath test device operated by the police, and that the machine has registered a "fail". And suppose that he knows (as did this appellant) that he is being arrested for impaired driving. Then it is highly likely that there are reasonable and probable grounds to demand a breath sample, given that case law. (The chance that the police were using a type of roadside device then not approved seems remote.) A lawyer experienced in this area, like the one in question here, could see a picture from a few of these facts, all known to the driver phoning him.

Under those circumstances, it seems to me that it is arguable that trying to learn whether the constable had any additional grounds (such as inability to walk straight) is not necessary to give advice whether to blow into the machine.

Having an early, test cross-examination of the constable may be useful for the lawyer's later conduct of the defence at trial (or preliminary inquiry). But that is not the purpose of consulting counsel on the scene before charges are laid in respect of the breathalyser, indeed before the driver decides whether to blow into it or not.

[19] The Alberta Court of Appeal disapproved of the decision in R. v. Sherwood, [1991] B.C.J. No. 4041, 29 M.V.R. (2d) 21 (S.C.), on which the respondent relies, on the basis that that decision did not consider whether the lawyer had, or could have gotten, [page271] the facts another way and relied on cases where the right to counsel had been denied. R. v. Stenset further held, at paras. 17-18, that while the questions asked by counsel concerning the grounds of arrest might appear at first blush to be factual questions, in reality they were questions of mixed fact and law. By analogy to cases where someone questioned by the police need only be told in broad and general terms of the charge, not the precise charge, still less the precise facts, the court concluded there had been no violation of the accused appellant's rights.

[20] In the case before us, the summary conviction appeal judge [R. v. Fitzsimmons, 2005 46091 (ON SC), [2005] O.J. No. 5335, 140 C.R.R. (2d) 48 (S.C.J.), at para. 17] purported to distinguish Stenset, on the basis that:

The facts at trial do not establish that Mr. Fitzsimmons possessed all the necessary facts to permit Mr. Greenspon to assess whether [the] police had reasonable and probable grounds to demand a breath sample. Further, the facts at trial do not establish that Mr. Greenspon turned to Constable Ritchie for assistance in interpretation of a "compendious question of mixed law and fact".

[21] We disagree with the summary conviction appeal judge's conclusion that Greenspon was not seeking information involving an issue of mixed fact and law when asking questions of Ritchie concerning the grounds of arrest or that Stenset was distinguishable on that basis.

[22] The summary conviction appeal judge further erred by placing a burden of proof on the Crown when she concluded [at para. 19]:

It cannot and should not be assumed, without the proper factual foundation, that Mr. Fitzsimmons had all of the information required by legal counsel to provide him with the necessary advice.

[23] The burden was not on the Crown. It was on Fitzsimmons to prove on a balance of probabilities that he had not been able to exercise his s. 10(b) rights in a meaningful manner.

[24] The fundamental purpose of s. 10(b) is to ensure that detainees are sufficiently informed of their jeopardy and their right to counsel and are given a reasonable opportunity to exercise that right. Ritchie was under no obligation to answer Greenspon's questions before Greenspon spoke to Fitzsimmons. Indeed to place such an obligation on a breathalyzer operator is impractical and could seriously interfere with the officer's ability to carry out his duties not only with respect to this detainee but others as well. We are not satisfied that there was any information necessary to the giving of legal advice that counsel could not have obtained by other means such as by asking his client. [page272]

[25] In the circumstances we need not address the question of whether s. 10(b) gives rise to any obligation on the part of the police to provide to counsel with information that counsel cannot obtain from the detainee.

[26] In view of our disposition on the substantive ground of appeal, we need not address the issue of the stay.

[27] For the reasons given, leave to appeal is granted, the appeal is allowed, the order of the summary conviction appeal judge is set aside and the conviction on the count of driving over 80 is restored.

Appeal allowed.