Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Mendo Kolevski
Before: Justice Lloyd Dean
Section 10(b) Voir Dire heard on: May 29, 2012 and June 6, 2012
Counsel:
- Russ Cornett for the Crown
- Brian Ducharme for the Accused
Ruling on S. 10(b) Voir Dire
Introduction
1The accused is charged with impaired operation of a motor vehicle contrary to section 253(1)(a) of the Criminal Code of Canada ("Code") and exceed contrary to section 253(1)(b) of the Code.
2Defence counsel has brought an application for an order granting relief under section 24(2) of the Canadian Charter of Rights and Freedoms ("Charter") for the exclusion of evidence obtained as a result of a violation of section 10(b) of the Charter.
Facts
3Following is a brief overview of the facts relevant to this voir dire.
4At approximately 9:22 PM on May 8, 2011 the motor vehicle the accused was operating was stopped, as a result of observations made, by a member of the LaSalle Police Service (Officer Goy). While discussing his observations with the accused the Officer detected the accused to have slurred speech and the odour of alcohol on his breath. Once the accused exited his motor vehicle the Officer observed the accused to be unsteady on his feet.
Defence Evidence Relevant to the S. 10(b) Issue
Evidence of the Accused
5The accused is 55 years old and works as a truck driver for Daimler Chrysler. He testified Officer Goy told him he had the right to telephone any lawyer he wished. When asked why he said okay to Officer Goy when Officer Goy advised he would call duty counsel for him, the accused said he was scared and didn't know any better, he did not know his rights. In his affidavit which was filed as an exhibit on the voir dire the accused stated at paragraph six that he talked to the lawyer chosen by the police in order to cooperate with the police. During the voir dire he testified he was handed a cordless phone. He is 99% sure it was in a hallway and the police officer was around so he did not feel as though he had any privacy. The accused stated he was not at all satisfied with the advice he received. He didn't know if he was talking to a lawyer. As far as he was concerned he could have been talking to the police dispatcher. He stated he didn't know what he was doing; he was scared because he had never dealt with the police officers before. He had never been arrested, so he didn't know what to do and did not know any of his rights. He testified he did not recognize the book the officer took out of the drawer as a phonebook and he says the book was never offered to him.
6A relevant portion of the evidence transcript is found at p. 14 of the May 29th transcript ("transcript"). Defence Counsel is questioning the accused:
Q. Now, I'm going back to the video that we saw at the police station. You heard Officer Goy say words to the effect, "I can't tell you whether it is or isn't, I just have to let you know it is your right to call a lawyer. If you don't have a lawyer I can call the free number for you and you can talk to somebody about how to proceed, okay? So when we get this taken care of I'll call and I'll have you speak to them, okay?" and you said, "okay"?
A. Yes.
Q. Why did you say that?
A. I didn't know any better. I was scared. I don't know what to expect. That's why I asked the officer if this was better, like what I want me to do like, you know.
Q. All right. Did you understand at that point that you could telephone any lawyer you wished?
A. No, I didn't know.
Q. All right. Then later I take it you were told by another officer to take the phone, right?
A. Yes.
Q. Okay, and tell us what happened then?
A. I was given a cell phone, I mean not a cell phone, a cordless phone, to talk to this person and, and I think, I'm not a hundred percent sure, but 99 percent was in the hallway and the police officer was there around so I didn't have like privacy or stuff so I didn't know like. I didn't know what I was doing, like I was scared because I never deal with the police officers before. I never been arrested, so I didn't know what to do, like I didn't know my rights.
Q. So did you speak to the duty counsel that they told you to speak to, did you?
A. Yes I did.
Q. And were you satisfied with the advice that you got?
A. Not at all. Long as I'm concerned that maybe I was speaking to the dispatcher, I don't know.
7During cross examination the accused repeated much of the evidence he gave during his direct examination. A relevant portion of his cross-examination can be found at page 21 of the transcript:
Q. …So was the topic of choice of counsel discussed?
A. No.
Q. You said in your affidavit at paragraph 6, "I talked to the lawyer chosen by the police in order to cooperate with the police"?
A. Yes.
Q. Is that true?
A. Yes.
Q. Why did you want to cooperate with the police?
A. I have to cooperate. I don't, I mean I just have to cooperate.
Q. Or did you think there was some sort of advantage there for you if you cooperated?
A. I didn't really know if it was advantage, just I know I have to cooperate.
Q. Well you are saying that the police said to you basically you have to talk to this lawyer and you did so, that's all that happened?
A. I don't understand your question.
Q. Well you have a choice whether you talk to a lawyer at all or not?
A. I asked the police Officer which was better for me, for me to talk to the lawyer or not talk to him.
Q. He said he couldn't help you with that, it was a choice you have to make, right?
A. Then he said, "I give you one for free." I says, "Okay."
Q. He said he'd contact duty counsel a free one 800 number and you could talk to that person if you wanted, right? You still had a choice?
A. I didn't know I have a choice.
Note: Continuing onto page 22, after an attempt by me to make sure the accused understood the suggestion by Crown counsel, the accused responded:
A. Okay. But I didn't know what my other choice is, so.
Mr. Cornett: Q. Well your choice was to talk to no lawyer.
A. I didn't know that.
Q. Well, well the officer told you there, you said, "I don't know whether I should talk to a lawyer or not" and he said "I couldn't tell you that."
A. No, he said "he will give you one for free."
Q. You're talking about on the video, is that right?
A. Yes.
8During his cross-examination the accused seem to acknowledge what Officer Goy took out of the drawer was a phonebook.
9When questioned about his phone call with duty counsel he did acknowledge he thought it was a duty counsel, but he wasn't sure. He acknowledged the person told him her name and he couldn't remember if she said she was duty counsel. A relevant portion of that testimony is found at page 24 of the transcript:
Q. So after you spoke to this duty counsel that you weren't satisfied about, what did you think the purpose of putting you in contact with duty counsel was?
A. I don't know.
Q. Just someone to talk to?
A. I guess.
Q. Just for the fun of it? Well, what did you think…
A. To give me legal advice.
Q. Right. And you certainly needed legal advice about whether you should cooperate with the police, right?
A. Yes.
Q. Because you didn't know what you should or shouldn't do, right?
A. Yes.
Q. And after that you provided breath samples?
A. Yes.
10With respect to his satisfaction with the conversation he had with duty counsel, a relevant portion of the evidence be found at page 28 of the transcript:
Q. …And you say you weren't satisfied with this duty counsel's advice, right?
A. Yes.
Q. You didn't say anything like that to the police, right?
A. They didn't ask me.
Q. Right, but you didn't say, look you put me in contact with the duty counsel, I'm not satisfied. You didn't give them a chance to sort of help you out a bit there did you?
A. Sir, if they ask me if I'm satisfied I was going to tell them no, but they didn't ask me.
Q. Yeah, why should they ask you? You're 56 years old, you work as a truck driver, you can be assertive when you want to be, why then, why didn't you speak up?
A. I don't have any, any experience of the police or the law, I never break the law before so I don't know what to expect. I don't know what to say, I don't know what to do.
Q. But you know you had a choice of, a speaking to a lawyer or not, right?
A. Not at that time.
Q. So you're expecting the police to make all your decisions for you, is that what you're saying?
A. Yes.
Q. But they told you specifically they're not going to make a choice for you to decide whether you want to speak to a lawyer or not, or who to speak to?
A. Sir, they also told me the other police Officer told me if it was me on duty I wasn't going to arrest you, you're a nice guy.
Crown Evidence Relevant to the S. 10(b) Issue
Evidence of Officer Goy
11As a result of all of the observations made by Officer Goy he placed the accused under arrest for impaired driving at 9:28 PM. At 9:30 PM he read the accused his right to counsel and Legal Aid and cautioned him. He read the right to counsel and Legal Aid directly from his officer's notebook while standing at the rear door of his police cruiser as the accused sat in the back seat. A copy of what the officer read was provided to the court and to counsel. Officer Goy asked the accused if he understood his right to counsel. In direct examination the officer indicated the accused said yes to that question and gave no indication he did not understand; otherwise he would have explained it to him. He also testified he asked the accused if he wished to call a lawyer now. Following is an excerpt from the transcript (p. 47) of the evidence given during direct examination:
Q. And then it says "Do you wish to call a lawyer now?" What was the response to that?
A. He wished to speak to Legal Aid.
Q. All right, and do you, do you have a recollection of how he expressed that, or is that the gist of what he said, or?
A. I don't have what he said verbatim, but he expressed that he would like to speak to the Legal Aid.
Q. Okay, and after you got that information what was your intention, what was your intention with respect to how to proceed with the issue of contact of counsel?
A. As in all cases, I don't have a phone available to me at the side of the road, so upon arrival at the station and the completing of the booking procedures I make a contact to the lawyer that they had wished or the duty counsel.
Q. Did you, actually put it into contact with duty counsel, I mean, how was the, was duty counsel contacted?
A. Yes it was.
Q. Well how was duty counsel contacted?
A. At 9:57 PM I placed a call to duty counsel through the 1-800 number which is a voice messaging system. I followed the prompts as required and that was how I made my call to duty counsel.
12Then on page 49 the transcript:
Q. The, so we have you on the video dealing with Mr. Kolevski and you, you, you take a telephone book out of the, of the cupboard. What were you doing?
A. I was taking the telephone book to refer to a lawyer's phone number if he had a lawyer that he wished to contact.
Q. What do he say to you?
A. He said that he did not have a lawyer. I can't recall precisely what he said, it was on the video that we viewed this morning, but it was to the effect of he didn't know a lawyer and he didn't have a lawyer.
Q. Okay, and where, what, what was your approach there? What were you trying to do in terms with your dealings in the booking room?
A. I was trying to ensure that he understood that his right was to contact a lawyer or legal counsel. I advised him that I couldn't give him counsel on what his choice should be, only that it is his right to contact a lawyer or counsel.
Q. Okay.
A. And as he had said previously he would like to speak to duty counsel I suggested that I could call for free legal advice to duty counsel if he so wished.
13As indicated above in the excerpt from p. 47 of the transcript, Officer Goy placed a call to duty counsel.
14During cross-examination Officer Goy acknowledged in his notebook he had not recorded the accused answer to the question "do you understand" with respect to his right to counsel/Legal Aid and whether he wished to call a lawyer now. In his notebook he only wrote that the accused "requests counsel through Legal Aid". He was asked by defence counsel if that was exactly what the accused had said. The relevant portion of the evidence is found at page 59 of the transcript:
Q. Now "request counsel through Legal Aid" is that what he said?
A. No.
Q. What did he say? What do you know, or can you remember?
A. I don't recall.
Q. Okay, you don't recall what he said, okay. But if in fact he had requested counsel through Legal Aid, wouldn't that call for some type of clarification? For example, do you want to apply for a lawyer of your choice through Legal Aid, or something like that? Isn't that a bit of a strange request to request counsel through Legal Aid?
A. No I don't believe it is.
Q. Okay, fair enough. And what is a request of counsel through Legal Aid mean to you?
A. The request of counsel through Legal Aid was words that I put down to explain what his response was. I didn't recall what his exact response was, and what it means to me is that he did not have a lawyer as stated on the video and he wished to speak to Legal Aid through the 1-800 number.
Q. But he did want a lawyer?
A. Correct.
Q. He did want to speak to a lawyer, that's what it meant to you?
A. That he wanted to speak to some form of counsel, whether it be duty counsel or lawyer.
Q. Oh it meant that he wanted to speak to a duty counsel or lawyer, meaning what, a lawyer of his choice?
A. No.
Q. No. Well what does it mean?
A. He indicated to me that he wished to speak to duty counsel Legal Aid. I don't recall his exact words, what I wrote down and his response to do you wish to call a lawyer now, was requested counsel through Legal Aid.
Q. That's what you wrote down?
A. Correct.
Q. Later at the police station?
A. No.
Q. Where did you, where were you when you wrote that down?
A. At the side of the road, at the rear of the police vehicle while he was seated inside.
15Then further at page 61 of the transcript:
Q. Well if he had indicated to you that he wanted to call a lawyer through Legal Aid at the scene, why is it, why would your first question to him at the police station that we saw in the video, why would you say, "so do you wish to contact the lawyer sir" when you already knew apparently that he wanted to contact a lawyer? Why would you say that at the police station?
A. Because it's his right to do so.
Q. No, no, but I mean you claim that you already knew at the scene that he wanted to call, well that he requested, that he requested counsel through Legal Aid, requested counsel through Legal Aid. So you say you already knew that, and yet the first question at the police station is, "so do you wish to contact a lawyer Sir?" You'll agree that was your first questions, wasn't it?
A. Yes.
Q. Okay. Why did you ask that when you already knew he had requested a lawyer through Legal Aid? Why wouldn't you just dial Legal Aid?
A. I can't answer that.
Q. Okay, okay. I'm going to suggest to you it's because he had not requested a lawyer at the roadside, possible?
A. No.
Q. Okay, okay. I'm going to suggest to you that when you put him in the backseat of the police car you shut the door and went around to the front and sat behind the wheel in the front?
A. No.
Q. Then with respect to your notes, I'm going to finish with the notes now I think, well maybe I'm not, you've got, one, two, three, four, five, six lines, I've already read them, "our RTCLA and caution, request caution through Legal Aid, breath demand read from notebook, advised understood." What does that refer to, "advised understood"? What does that refer to?
A. The breath demand.
Q. Oh that refers to the breath demand, okay. Well if it occurred to you to make a note that he understood the breath demand, why then wouldn't you make a note that he understood the right to counsel?
A. I can't answer that.
Q. Okay. But you didn't make a note that he understood the right to counsel, correct?
A. Correct, and the reason for that was because anytime I make notes, if there is something that requires further elaboration in my notebook because it becomes something that's out of the ordinary I will make a note of it. In this case because the replies were standard and there was nothing complicated to them I did not notate the exact response.
Q. Have you been trained that way, or have you been trained to make notes about important…
A. With respect to training on the notes, they are my notes, they're written down by me and the way I fashion to write them. We're not given a specific template on what is to be recorded. It's to refresh our memory of an incident and therefore I write what I feel is important the time of the occurrence.
16In his typed occurrence report Officer Goy had recorded that Mr. Kolevski acknowledged he understood his right to counsel/Legal Aid and requested to speak to duty counsel, although he could not remember what was exactly said.
17Another relevant portion of the evidence is found at pages 64 to 67:
Q. Even though you didn't make notes of what he said or what you said and you can't now remember what he said about understanding, can you?
A. No.
Q. Then let's go back to the video - and at the roadside then if you read the right to counsel from the card as you say, which essentially says you have the right to telephone any lawyer you wish. If you do not have a lawyer you can call the Legal Aid 1-800 number. That implies a choice does it not? Either a lawyer of your own choice, any lawyer you wish, or Legal Aid duty counsel, correct?
A. Yes.
Q. That implies a choice?
A. Yes.
Q. Did you ask Mr. Kolevski at the roadside what his choice was, Legal Aid duty counsel or a lawyer of your own choice? Did you ask him that specifically?
A. I asked him exactly what it says in the back of my notebook.
Q. All right, so you'll agree with me, you didn't ask him?
A. Well yes I did, it said, "do you wish to call a lawyer now?"
Q. And you can't recall his response verbatim?
A. No.
Q. Okay.
A. Only that he requested, he did not have a specific lawyer that he...
Q. Did he say that at the roadside too?
A. No. Mr. Ducharme, I'm attempting to explain. He did not provide a specific lawyer. He understood what was read to him and wished, or I, he understood what was read to him and wished to speak to Legal Aid Plan for Assistance.
Q. He did not provide, did you ask him for the name of a specific lawyer...
A. No.
Q. ...at the roadside?
A. No.
Q. So you didn't ask him to make a choice?
A. No.
Q. And didn't ask him for the name of a specific lawyer at the roadside? Yes or no?
A. No.
Q. So then if we go to the police station, to the booking room where we saw the video your first question is, "So you wish to contact a lawyer sir", correct?
A. From what I can recall from the video, yes.
Q. Okay. "I don't have any lawyer sir, I don't know any lawyers." And then you say, "okay, what I can do is make a 1-800 number phone call and you will talk to a lawyer for free and they'll give you the advice for free, do you want to do that?" And he says, "Okay. What do you think is better for me to do?" Are you with me?
A. Um hum.
Q. All right.
THE COURT: Yes?
A. Yes, sorry Your Honour.
THE COURT: Okay.
MR. DUCHARME: Q. Doesn't a question like that, "Okay, what do you think is better for me to do", doesn't that imply some equivocation on his part, some lack of understanding on his part when he's asking you what it is he should do? Wouldn't you agree?
A. No.
Q. No? So, so when he says "Okay, what do you think is better for me to do" you go on then to clarify don't you after that?
A. Yes.
Q. Okay. Okay, and you say "I can't tell you whether it is or isn't, I just have to let you know it is your right to call a lawyer. If you don't have a lawyer I can call the free number for you and you can talk to somebody about how to proceed, okay? So when we get this taken care of I'll call and I'll have you speak to them, okay?" That's what you said basically, right?
A. Yes.
Q. Okay. You'll agree with me that in that attempt at clarifying, you don't say "You have the right to telephone any lawyer you wish" do you?
A. No.
Q. No okay. I'm going to suggest to you that what you're really doing here is attempting to get him in touch with duty counsel or a Legal Aid lawyer, that's really what you're trying to do here, isn't that it, by what you're saying? Is that fair?
A. I'm attempting to insure that he exercises his right under the Charter to speak to, to have legal advice.
Q. And that legal advice includes the right to telephone any lawyer you wish, correct?
A. That's correct.
Q. But you didn't say that did you?
A. I did on the road.
Q. Oh but you didn't say it there...
A. No.
Q. ...When you're attempting to clarify it, okay. And you'll agree with me that at no point do you offer the phone book to Mr. Kolevski and say here's a phone book you can use it if you wish. You don't offer that to him do you?
A. No.
Q. But you had a phone book didn't you?
A. Yes.
Q. Okay. And at no time do you put him in front of a phone himself and say here's a telephone, call anybody you want, or use the phone, or anything like that?
A. No.
Evidence of Sgt. Boniferro (Breath Tech)
18Sgt. Boniferro testified he did not have any discussions with the accused about his right to counsel. During the first and second breath tests the officer indicated that he advised the accused there were a series of questions he was going to ask and the accused was not obligated to answer them, but if he provides him with a response he will mark it down. Sgt. Boniferro gave evidence that he stopped asking the questions when the accused told him to stop.
Evidence of Sgt. Beaudoin
19Sgt. Beaudoin was the Officer In Charge that evening. He testified there is a private telephone booth for the accused to have contact with legal counsel in privacy. There are no cordless phones in the station other than cell phones. All phones have a cord. He became involved in the investigation at 9:47 PM, in the booking room. At no time did he observe the accused speaking on a cell phone or a cordless phone. After arriving at the booking room he observed Constable Goy go through the procedure with the property envelope. He recalls a discussion taking place about a lawyer. He did not make a record of the conversation but recalls it from reviewing the video. He recalls the accused saying he did not know a lawyer and Officer Goy offering to call a duty-free lawyer. The observations of Sgt. Beaudoin are captured by the video which has been made an exhibit. Sgt. Beaudoin indicates a call was made by Officer Goy to duty counsel at 9:57 PM. At 10:08 PM duty counsel had returned the call. The name of duty counsel was Janet Ruderman. Officer Beaudoin had a conversation with Ms. Ruderman on the phone in the privacy booth. After completing his conversation with her he put her on hold, went to the cell where the accused was being held and brought him to the privacy booth to speak with duty counsel. At 10:15 PM he observed the accused emerge from the privacy booth. He asked him if he was done and the accused stated he was. The accused was brought back to his cell. Sgt. Beaudoin did not ask him if he was satisfied and does not believe he has ever asked that question of an accused. He further testified that the accused did not indicate he wanted to speak to another lawyer after speaking to duty counsel.
20During cross-examination Sgt. Beaudoin agreed that the right to counsel include the duty of the police to inform the accused that he has the right to contact any lawyer he chooses or Legal Aid. He also agreed that normally an officer would be expected to write down the accused response to the question "do you understand" after the right to counsel are read. Sgt. Beaudoin testified there is a list of lawyers on the wall in the booking area. He also testified they usually provide the accused with the list of lawyers or the phonebook. He further testified that if an accused person said they didn't have a lawyer he would provide that person with a list of names.
Position of the Parties
The Defence Position
21Defence counsel argues that the Lasalle Police officers failed to meet the informational component of the right to counsel requirement because Mr. Kolevski was not informed of his right to choose his own lawyer and they failed to facilitate his right to choose his own lawyer because he wasn't given an opportunity to choose. Defence counsel argues that Officer Goy steered the accused towards duty counsel. He argues the mere availability of duty counsel does not obviate the need for the police to inform the accused of his right to counsel of choice and to give the accused the opportunity to choose a lawyer. He further submits that Officer Goy's evidence is unreliable. He supports that submission by pointing out the officer made no note of the specific words the accused spoke to answer the question "Do you understand?" Defence counsel argues the accused clearly remembers the events and his evidence cannot be rejected. He submits the evidence should be excluded pursuant to s. 24(2) of the Charter. He provided several cases to support his submissions.
The Crown's Position
22The Crown asked the court to look at the entire evidence in context. The Crown submits that Officer Goy was not steering Mr. Kolevski towards duty counsel but trying to accommodate his right to counsel based on what the accused was saying. He submits on the video the court is able to see and hear how the implementation of the right to counsel is played out. The Crown submitted several reasons why the cases defence counsel used to support his argument can be distinguished. He then went on to argue that the accused still had the benefit of legal advice and if the court found a breach of s. 10(b) the evidence should not be excluded as doing so would bring the administration of justice into disrepute.
Analysis
23The onus of proving a Charter breach is on the person alleging the breach to prove on a balance of probabilities that a breach has occurred.
24Section 10(b) of the Charter states as follows:
"Everyone has the right on arrest or detention,
(b) to retain and instruct counsel without delay and to be informed of that right."
25As set out in R v. Bartle, 1994 CanLII 64 (SCC), 92 C.C.C. (3d) 289 (S.C.C.), by Justice Lamer, there are three duties imposed on the police upon arresting or detaining an accused:
(1) to inform the detainee of his or her right to retain and instruct counsel without delay and the existence and availability of Legal Aid and duty counsel;
(2) if a detainee has indicated a desire to exercise his right to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and,
(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).
26The s. 10(b) right to counsel is intimately concerned with an individual's right against self-incrimination - a detainee facing significant legal jeopardy is in immediate need of legal advice - the s. 10(b) right allows a detainee to become conversant not only with his or her rights and obligations under the law but also to obtain advice as to how to exercise those rights: R. v. Sinclair, 2010 SCC 35 (CanLII), [2010] 2 S.C.R. 310 (S.C.C.). It is designed to ensure that detainees "have an opportunity to be informed of their rights and obligations under the law and to obtain advice on how to exercise those rights and perform those obligations.": R. v. Willier, 2010 SCC 37 (CanLII), [2010] 2 S.C.R. 429 (S.C.C.)
27In R. v. McCrimmon, 2010 SCC 36 (CanLII), [2010] 2 S.C.R. 402, the court explained that the purpose of section 10(b) is to provide detainees with immediate legal advice on his or her obligations under the law.
28The Supreme Court of Canada has identified two components of the right to counsel that are protected by s. 10(b). First, is the informational component; the cases establish what the police must tell the detainee about his right to consult counsel. The second component of the s. 10(b) right to counsel is the implementation component. This second component requires the police to give the detainee an opportunity to exercise his right to counsel. The courts have held that this second component implies that there is a duty on the police to hold off questioning until the detainee has had a reasonable opportunity to consult with counsel. (see R. v. Sinclair, 2010 SCC 35 (CanLII), [2010] 2 S.C.R. 310; R. v. Willier, supra; and R. v. McCrimmon, supra.)
29On the evidence before me the accused has not satisfied me on the balance of probabilities that Officer Goy did not inform him of his right to counsel at the roadside. I accept the officer's evidence that he read the right to counsel from the card at the back of his notebook. I have concluded the accused was made aware by the police that he had a choice between duty counsel and a lawyer of choice. Viewing the recording of the booking room and considering the viva voce evidence on the voir dire I have concluded the accused was fully aware of his right to choose between duty counsel and a lawyer of his choice but was not sure which he should choose. The court said in R. v. Willier, supra, at para. 31, "should a detainee positively indicate that he or she does not understand his or her right to counsel, the police cannot rely on a mechanical recitation of that right and must facilitate that understanding". That is not this case. The accused response to the officer that he did not know any lawyers or have a lawyer was not an indication that he didn't understand he had a choice, but rather he did not know what to do with the choice. That's why he asked Officer Goy what he should do. I am satisfied the informational component was satisfied.
30With respect to the implementation component, I am somewhat troubled by the fact that Officer Goy did not record exactly what the accused said to the questions that were asked as part of the right to counsel, namely "do you understand and do you wish to call a lawyer now". It should be clear to all police officers by now that any response given to those two questions are important and should be recorded. I would expect officers to record the answers to such critical questions verbatim, either immediately or if circumstances are such that it would not be possible or prudent to record the responses verbatim, as soon thereafter as possible. As a result of not recording the answers verbatim, coupled with what is observed on the video of the booking room I am left with a degree of uncertainty as to whether the accused indicated clearly at the roadside that he wished to speak to duty counsel as Officer Goy suggested in his testimony.
31In my view, the police made insufficient efforts to implement the accused right to counsel. In the circumstances of this case Officer Goy should have provided the accused with a list of lawyers or the phone book. Given how the accused responded to Officer Goy, saying he did not know a lawyer and asking what he should do, Officer Goy should have provided the accused with a list of lawyers and/or the phone book, unless there had been a more clear indication from the accused that his choice was clearly duty counsel. I appreciate this area of the law is somewhat difficult for police officers. It is a close call, but given the evidence of Sgt. Beaudoin, on a balance of probabilities I am satisfied the accused has made out a breach. Sgt. Beaudoin testified they (the police) usually provide the accused with the list of lawyers or the phone book and if an accused person said they don't have a lawyer he would provide them with a list of names. That is what the accused told officer Goy, that he did not have a lawyer and did not know a lawyer. Therefore the accused has satisfied the court on a balance of probabilities that there was a breach of his section 10(b) right to counsel.
32Having found a section 10(b) breach, I am next required to determine whether the breath sample evidence should be excluded pursuant to section 24(2) of the Charter. Would the admission of this evidence bring the administration of justice into disrepute?
33The court is required to apply the test set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32 (CanLII), [2009] S.C.J. No. 32. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct, (2) the impact of the breach on the Charter-protected interests of the accused and (3) society's interest in the adjudication of the case on its merits.
34This breach of the implementation component of section 10(b) was not a serious one, and I would describe it as inadvertent or minor. The police acted in good faith. The actions of the police fully addressed the need to ensure the accused received immediate legal advice and the breach caused no prejudice to the accused. In my view, having spoken to duty counsel the detainee had the information he needed to make a meaningful choice as to whether to cooperate with the investigation or decline to do so. The repute of the administration of justice would suffer it reliable evidence was excluded for a relatively minor breach by an officer who in my view was trying to be respectful of the accused rights. While the breath samples were conscriptive evidence, they were minimally intrusive, reliable and essential to control the societal problem of drinking and driving.
35As stated in R. v. Grant, supra, at paragraph 111:
111 While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive.
[Emphasis added.]
Conclusion
36After weighing all of the Grant factors, I am of the view that the breath sample evidence should not be excluded.
Other Conclusions
37The accused mentioned during his testimony that he was given a cordless phone in a hallway to speak to duty counsel. He did not feel he had any privacy. The police evidence was that the accused was given privacy to talk to duty counsel in a privacy booth. The issue of privacy was not referred to by defence counsel during submissions. Nonetheless, I have considered that evidence and accept Sgt. Beaudoin's evidence on that point. The accused has not satisfied me on the balance of probabilities that his right to privacy was violated.
38As well, the accused was asked during his testimony whether he was satisfied with the advice he received and he indicated no. Defence counsel did not raise this issue in his submissions but I will address this issue as well.
39Although the accused said he was not satisfied with the advice he did not indicate his dissatisfaction to the officers. The accused stated if the officers would have asked him he would have told them he was dissatisfied. The Supreme Court addressed this issue in R. v. Willier, supra, at paragraph 41 and 42 which read:
41 While s. 10(b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does not require them to monitor the quality of the advice once contact is made. The solicitor-client relationship is one of confidence, premised upon privileged communication. Respect for the integrity of this relationship makes it untenable for the police to be responsible, as arbiters, for monitoring the quality of legal advice received by a detainee. To impose such a duty on the police would be incompatible with the privileged nature of the relationship. The police cannot be required to mandate a particular qualitative standard of advice, nor are they entitled to inquire into the content of the advice provided. Further, even if such a duty were warranted, the applicable standard of adequacy is unclear. As this Court recognized in R. v. G.D.B., 2000 SCC 22 (CanLII), [2000] 1 S.C.R. 520, at para. 27, there is a "wide range of reasonable professional assistance", and as such what is considered reasonable, sufficient, or adequate advice is ill defined and highly variable.
42 As noted, s. 10(b) aims to ensure detainees the opportunity to be informed of their rights and obligations, and how to exercise them. However, unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview.
40In the case at bar the police officers were entitled to assume that the accused was satisfied with the exercised right to counsel.
41No evidence will be excluded pursuant to s. 24(2) of the Charter.
Dated: July 26, 2012
________________________
Judge Lloyd Dean
Ontario Court of Justice