Ontario Court of Justice

Date: August 14, 2019

Central East Region (Oshawa)

Between:

HER MAJESTY THE QUEEN

— AND —

TOM (DONG) NO

Before: Justice F. Javed

Heard on: June 17, 20, 2019

Reasons on Charter Applications released on: August 14, 2019

Counsel:

• M. Gillen, counsel for the Crown
• J. Dos Santos, counsel for the Applicant

F. Javed J.:

I. INTRODUCTION

1This is a ruling on an application seeking relief under the Charter of Rights and Freedoms ("Charter").

2On September 28, 2017, the Applicant, Tom (Dong) No, was charged with the criminal offences of being in care or control of a motor vehicle while impaired by alcohol and while his blood-alcohol concentration (BAC) exceeded 80 mgs of alcohol in 100 mls of blood, contrary to s.253(1)(a) and (b) of the Criminal Code.

3The Crown alleges Mr. No was operating a motor vehicle that collided into a concrete pillar resulting in significant damage. Upon being investigated outside the motor vehicle, the police suspected Mr. No was impaired by alcohol. He failed a roadside test and was arrested. He later provided two samples of his breath, which exceeded the legal limit.

4At trial, the Crown seeks to rely on evidence derived from his roadside conversation with the investigating officer, PC Darryl Sabourin which formed part of his grounds to make a breath demand under s.254(3) of the Criminal Code. This included Mr. No's admission of driving and alcohol consumption. The roadside conversation along with other evidence formed part of the grounds to make a breath demand which ultimately resulted in securing two samples of his breath.

5Mr. No seeks to exclude the evidence collected from his roadside conversation with the police as well as his breath samples arguing his Charter rights were violated. Specifically, Mr. No advanced the following Charter complaints:

(i) He was compelled by statute to incriminate himself in violation of s.7 of the Charter by reporting details of the accident to PC Sabourin; and

(ii) His right to retain and instruct counsel without delay under s.10(b) was violated in two ways:

(a) By the failure of PC Sabourin to provide the rights forthwith; and

(b) By improperly "steering" him to duty counsel.

6As a remedy for the alleged violations, Mr. No seeks to exclude the evidence of his breath samples under s.24(2) of the Charter. If the s.7 argument is successful it would result in an exclusion of the incriminating evidence under s.24(1) of the Charter.

7On June 17, 2019, the trial commenced before me and continued on June 20, 2019. I heard submissions on the Charter issues and given the time of day, reserved to consider the cases relied on by the parties. Unfortunately, this case has a tortured and long history which I do not need to review as Mr. No is not advancing a breach of his rights under s.11(b) of the Charter. The trial is set to continue on September 6, 2019. I indicated to the parties I would deliver a ruling to them prior to proceeding with the trial.

8The Crown called the investigating officers, PC Sabourin and PC Jeffrey Tyler as well as a Qualified Breath Technician ("QBT"), PC Ryan Sheridan. The Crown also called a civilian witness, Robert Oldman who called 911 and filed various exhibits including a Certificate of a Qualified Breath Technician (COQBT) as Exhibit 1 on the voir dire, a Certificate of an Analyst (Exhibit 3) and an expert opinion from a toxicologist, Dr. Daryl Mayers from the Centre of Forensic Sciences as Exhibit 4.

9Mr. No testified on the Charter voir dire.

10The parties agreed to blend the evidence of the Crown's witnesses on the voir dire and trial issues.

11Mr. No carries the onus of proving on a balance of probabilities that his Charter rights were violated and to the extent there's a s.10(b) breach, he's entitled to a remedy under s.24(2): R. v. Singh, 2007 SCC 48 at para. 8.

12There are some factual differences between the parties about some events. In a Charter voir dire, the reasonable doubt standard developed in R. v. W.D., [1991] 1 S.C.R. 742, does not apply where the Applicant bears the burden of proof on a balance of probabilities: R. v. Poole, 2015 BCCA 464, 330 CCC (3d) 281 at para. 51. Similarly the introduction of hearsay is permitted because a Charter voir dire is designed to establish "the state actor's mind and conduct, not the ultimate reliability of the evidence in determining the guilt of the accused": R. v. Paterson, 2017 SCC 15 at para. 20. I have kept these principles in mind while wading through the evidence.

13I will start with some background facts before turning to the specific Charter complaints.

II. THE BACKGROUND FACTS

14On September 28, 2017, at approximately 12:56 am, PC Sabourin and PC Tyler were dispatched to a 911 call about a motor vehicle accident at the Manresa Retreat Centre, a Jesuit church on Liverpool Rd. and Rigby Dr. in Pickering in the Durham region.

15Mr. Oldman resides in a home that backs onto the church. He explained that the church is located on the dead end of Liverpool Rd. and has been the subject of traffic accidents in the past. The city of Pickering recently changed their signage due to this reason. It was a quiet summer evening and he was watching television in his living room when he felt the concussive force of some impact. He went to his back deck off his kitchen and while standing on his deck, saw a white Honda minivan that had collided with the eastern portion of the church's gate. He explained that the church is fenced with white concrete pillars and a rod iron gate. He saw a male get out of the driver's seat of the van and walk around it.

16Mr. Oldman was on the eastern portion of his deck and from a distance of about 40-60 feet asked if the male was okay. The male stopped walking and responded "yeah, I got it". Mr. Oldman said the male was "stumbling and staggering a bit" and had a slurred speech. Not surprisingly, he assumed it was due to the accident. After determining nobody else was in the van, he returned inside and called 911.

17Mr. Oldman said there was a delay of about 3-4 minutes between the crash and the call to 911 and 7-8 minutes before the police arrived. He stayed on the phone with the 911 operator until the police arrived. He did not go back outside on his deck and did not see the police interaction with the male.

18PC Sabourin and PC Tyler arrived on scene at 1:01 am. Ultimately, PC Sabourin had a conversation with Mr. No at the roadside, which lead him to form grounds to make an approved screening device (ASD) demand. Mr. No failed the roadside test leading to his arrest. Mr. No was read his rights to counsel ("RTC") but claims PC Sabourin improperly informed him of his RTC and never asked him about his counsel of choice. He spoke with duty counsel and subsequently provided two samples of his breath.

19I will now turn to the Charter arguments.

III. THE CHARTER ARGUMENTS

A. Section 7

(i) The Positions of the Parties

20Mr. Dos Santos advanced two Charter arguments. First, he argued Mr. No only spoke with PC Sabourin because he was compelled to make a "report" by the Highway Traffic Act R.S.O. 1990, c. H.8, ("HTA"), in violation of s.7 of the Charter. Consequently, any compelled statements, including identifying himself to the police and his comment "I fucked up" are not admissible for any purposes. He relies on the Court of Appeal's decisions in R. v. White, [1999] 2 S.C.R. 417, and R. v. Soules, 2011 ONCA 429, 105 O.R. (3d) 561, leave to appeal refused, [2011] S.C.C.A. No. 375.

21Mr. Gillen argues there was no s.7 violation because Mr. No's comments were not a "report" within the meaning of s.199 of the HTA and therefore not captured by rule in Soules and White.

(ii) The Applicable Principles

22Section 199(1) of the HTA provides:

199(1) Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall, if the accident results in personal injuries or damage to property apparently exceeding the amount prescribed by regulation, report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3).

23Mr. No has the burden of establishing on a balance of probabilities, that he "reported" the accident on the basis of an honest and reasonably held belief that he was required by law to report the accident to PC Sabourin: White at para. 75. See also R. v. Roberts, 2018 ONCA 411; R. v. Tim, [2019] OJ No. 1369 (Ont. Sup. Ct.); R. v. Parol, 2011 ONCJ 292 at para. 7. In Tim, supra, Justice Speyer framed the operative issue as requiring a court to make a finding of fact as to whether or not Mr. No participated in the conversation with PC Sabourin because he was statutorily compelled to do so.

(iii) Evidence and Findings

24Mr. No is 38 years old and resides in Toronto. He is employed at Turtle Jack's in the Muskoka region. He does not have a criminal record. This matter was his first involvement with the police although as I will explain below, not his first contact with the police after a motor vehicle accident.

25Mr. No testified he worked a 14 hour shift and dropped off a friend in Scarborough before going home. He did not drink any alcohol at work but after work, he went out with his boss where he had 5 shots of Oban whiskey. He said his friend gave him verbal directions to get home in Toronto but he must have got lost and ended up on Liverpool Rd. in Pickering. He was unfamiliar with the area and got involved in a "significant collision".

26Mr. No said the force of the collision caused all his airbags to be deployed. He exited his minivan and immediately called his wife. He later felt sharp chest pains and felt dizzy, nauseous and very tired. It was unclear if he had a concussion.

27Mr. No recalled having a brief conversation with a male, who asked him if he was okay. I find this was Mr. Oldman. While on the phone, he saw a police cruiser arrive.

28Mr. No said he was 10 feet away from his minivan when PC Sabourin arrived. PC Sabourin had been a police officer for 4 years at the time. According to Mr. No, PC Sabourin remained in his cruiser, which was parked about 20 feet away, for a short while and then approached him. PC Sabourin confirmed he remained in his cruiser for 1.5 minutes and saw Mr. No on the phone about 10-15 feet away from the minivan. There was nobody else around. He testified that he wasn't sure if Mr. No was the driver or the 911 caller.

29There is a factual difference in the sequence of the events that followed. PC Sabourin testified he walked past Mr. No and asked "Are you okay". Mr. No responded "Yeah". He noticed that the driver side of the minivan was open and the airbags were deployed. A concrete barrier had tipped over suggesting a serious motor vehicle collision. In his mind, he began to investigate the accident. PC Sabourin said he looked for documents, ostensibly by entering the motor vehicle, but didn't find anything. He then approached Mr. No who was no longer on the phone and asked him for his vehicle documents. Mr. No went into the driver's side of the van and produced an insurance slip, wallet and ownership. The documents listed Mr. No as the owner of the minivan. PC Sabourin said they were standing at arms-length and he began to detect an odor of alcohol. At this point he began to go "in a different mode", as "this was more than just an accident".

30PC Sabourin asked Mr. No "what happened". Mr. No responded: "I fucked up". At this point, he smelled an odor of alcohol on his breath. PC Sabourin asked him if he was driving and if he was the only person in the minivan. Mr. No responded "yes" and "he was with his boss and was on his way home". PC Sabourin said Mr. No's speech was slurred which he explained as trailing off, lazy and not direct. He continued to smell an odor of alcohol on his breath. PC Sabourin said he asked for a roadside device to be transported to the scene as he had been involved in a previous accident at this location where there was a motor vehicle collision and a death. He escorted Mr. No to the back of his cruiser and explained to him that he had to wait. Mr. No complied. He continued to have a conversation with him asking if he knew where he was. Mr. No said "Weston Rd." He corrected him that he was in Pickering. He then asked if he had anything to drink. He responded he was "out with his boss 2 hours ago".

31At 1:10 am, PC Sabourin cautioned Mr. No for the first time that he was investigating him "for an impaired". He told him that an officer was arriving with a roadside but could have said "machine" as he didn't jot it down in his notes. Shortly thereafter, another officer brought an ASD to the scene and placed it on the trunk of his cruiser. At 1:11 am, he read him an ASD demand. Mr. No said "he was not a bad guy and was going to try to help out". Mr. No added "he only had a couple of drinks".

32Mr. No did not have a good recollection of the sequence of events at the roadside. He recalled PC Sabourin asking him if he was okay but this was after he "probably" asked him for his vehicle documents. I don't accept Mr. No's recollection on this point. I accept PC Sabourin's evidence he first asked if he was okay which is sensible before asking for documents. In cross-examination, Mr. No also admitted stating "I fucked up because I ran into a pillar" but said this was before he was asked if he was okay. I don't accept this either. Again, it makes sense the above comment would be responsive to a question of what happened.

33In cross-examination, PC Sabourin admitted he did not tell Mr. No he was investigating him for a criminal offence when he first smelled alcohol, which on his own evidence was before he asked him "what happened", generating the answer "I fucked up". I find PC Sabourin was investigating Mr. No for possible involvement in a criminal offence and developing grounds for a roadside device, which he had determined was necessary.

34Mr. No testified he responded to PC Sabourin's questions about who was driving and what happened because he felt he had to report details of the accident. He explained in 2007, he was involved in a serious 11 vehicle collision on Hwy 427/Hwy 401 which I know is in Ontario and therefore subject to the HTA. He could not recall all the events in great detail but remembered that he was hospitalized. He learned from his family that a police officer attended at the hospital and told him he "needed a statement".

35In cross-examination, Mr. No added that the officer in 2007 told him in the hospital he was investigating an accident and it required him to provide details as it was the law. When asked if he recalled the specific question asked by the officer, which lead him to believe he had to provide a statement, he could not recall as he was seriously injured.

36To begin, no evidence was lead about the extent of the damage resulting from the crash into the pillar, which might trigger the provisions of s.199 of the HTA. That said, I can reasonably infer from PC Sabourin's evidence that the collision was "significant" and the damage would exceed the amount prescribed in the statute making the provisions of s.199(1) of the HTA applicable.

37Mr. Gillen argued Mr. No didn't make a "report" when he admitted he was driving and by stating "I fucked up". Respectfully, I disagree.

38I simply have no basis to reject Mr. No's evidence about the events in 2007, which influenced his conduct on this occasion. In 2007, Mr. No recalled asking the officer if he had to provide a statement and was told yes. I accept this evidence which speaks to the honesty of his belief as it relates to his conduct at the roadside.

39In cases where a Soules issue is raised, each case will turn on its own facts. For example, in R. v. Moussavi, 2016 ONCA 924, Mr. Moussavi was involved in a rear end collision with another vehicle causing his vehicle to flip. When the police arrived, the trial judge held that he approached the police on his own accord intending to offer an exculpatory explanation of the accident. The police later asked if he was driving followed with questions related to alcohol consumption. The trial judge accepted that Mr. Moussavi had a "generalized, non-specific duty to report an accident under the HTA" but found that he volunteered the information without being prompted.

40This case is different because the record establishes that PC Sabourin asked specific questions related to the collision and Mr. No's involvement in it. The questions were not just about his safety, except for the first one"are you okay". However, the questions about what happened, who was driving, whether anybody else was in the car all in the context of smelling alcohol, were all related to an accident but also a criminal investigation.

41In Moussavi, the Court of Appeal held at paras. 29-30:

[29] Whether a roadside statement made by an accused to a police officer after an accident is statutorily compelled is a question of fact to be determined based on the particular circumstances of each case. There will be instances where the accused will in fact be speaking based on a subjective and reasonably held belief that he or she must do so. But there will be other cases where the accused responds freely, entirely unmotivated by any statutory duty. In the latter case, the statements are not protected by the use immunity provided by s. 7 of the Charter.

[30] The proper balance is struck in White, at para. 76:

[C]ompulsion, by definition, implies an absence of consent. If a declarant gives an accident report freely, without believing or being influenced by the fact that he or she is required by law to do so, then it cannot be said that the statute is the cause of the declarant's statements. The declarant would then be speaking to police on the basis of motivating factors other than s. 61 of the Motor Vehicle Act.

42In my view, only the answer "Yeah" to the question if he was okay, was motivated without compulsion but details of the circumstances of the collision in response to questions asked by the police were not. Another case will illustrate this point. In Tim, supra, the police responded to a 'busy and active' accident scene where a vehicle with several occupants had flipped over. Upon arrival, the police tried to determine the safety of the occupants and Mr. Tim told a police officer he was the driver and that his friend was hurt. Mr. Tim argued at trial that this utterance was compelled by statute. Justice Speyer disagreed ruling that Mr. Tim spoke to the police to render assistance to them [his injured passengers] and to manage the possible consequences of his own conduct. In other words, he spoke freely, not under compulsion.

43In this case, the evidence establishes on a balance of probabilities that Mr. No participated in the roadside conversation because he felt compelled to do so as a result of being influenced by his earlier compelled report in 2007. In cross-examination, he was not shaken on this point. I cannot be satisfied that he gave his answers freely to PC Sabourin because he was asked pointed questions. He wasn't just volunteering information as in Moussavi or offering assistance as in Tim. Even if PC Sabourin's intention was motivated by bona fides in getting at the bottom of the collision, the issue in Soules requires an assessment from the perspective of the person claiming relief under the Charter.

44For this reason, Mr. No's s.7 Charter application succeeds and his compelled utterances, which included his identification to the police, comments about his driving pattern and consumption of alcohol are automatically excluded under s.24(1) of the Charter. According to Soules, they cannot be used for any purpose including establishing grounds for an arrest. However, PC Sabourin's observations of Mr. No as a lawfully detained suspect are not impacted because they are not conscriptive evidence obtained through a subject's participation: R. v. Luchtmedial, 2011 ONCA 585, at para. 5; R. v. Germain, 2012 ONSC 3928 at para. 36.

B. Section 10(b): Rights to Counsel

(i) The Positions of the Parties

45Mr. Dos Santos's next argument is that the police violated Mr. No's s.10(b) rights by failing to provide his rights forthwith and by failing to provide sufficient information and assistance in exercising his right to counsel ("RTC"). In particular, it's alleged the police never told him he could call a lawyer of his choosing and didn't assist him in this endeavor. In support of this argument, Mr. Dos Santos relied on the decisions of R. v. Ali, 2018 ONCJ 203, [2018] O.J. No. 1662; R. v. Manuel, [2018] OJ No. 2955 and R. v. Sakharevych, 2017 ONCJ 669, from the Ontario Court of Justice.

46Mr. Gillen argues there was no s.10(b) violation as PC Sabourin complied with his informational duties by providing Mr. No his complete RTC. Mr. No chose to speak with duty counsel and never complained about his advice. In these circumstances, the police were not obligated to provide him with the "tools" and assistance to contact his counsel of choice. He relied on the summary conviction appeal decision in R. v. Ruscica, 2019 ONSC 2442, which did not adopt the reasoning in Ali and Manuel.

(ii) The Applicable Principles

47Section 10(b) of the Charter provides that everyone has a right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. Section 10(b) imposes certain duties on the police and the detainee. The Supreme Court summarized the obligations on the police in R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 29:

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

(2) if a detainee has indicated a desire to exercise this 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).

48The first duty requires the police to provide sufficient information to the detainee whereas the other two duties require the police to assist the detainee if she decides to exercise her RTC. Cases have referred to these as the "informational" and "implementational" duties. In 2010, in a trilogy of cases, the Supreme Court recognized that the two duties often overlap. In other words, the scope of the information and assistance required will depend on the circumstances of the case: Willier, supra, R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310 and R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402.

(iii) The Forthwith Argument

49Mr. Dos Santos argued PC Sabourin didn't afford RTC forthwith. This argument was plead in the Applicant's Form 1 Notice of Application but not pursued in oral submissions. Indeed, neither party addressed it in oral submissions. Out of an abundance of caution, I will consider the argument which was framed as a s.10(b) not s.8 violation. For reasons that I will explain, neither argument has merit.

50Section 254(2) of the Criminal Code addresses the forthwith requirement and has two aspects. The first requires peace officers to make the demand "promptly once she forms the reasonable suspicion the driver has alcohol in her body" and second, the driver must provide the sample "forthwith" which means immediately or without delay, although as cases have held, there is some flexibility where a "short delay" is "reasonably necessary": R. v. Quansah (2012), 2012 ONCA 123, 286 CCC (3d) 307 (Ont. C.A.).

51For purposes of s.10(b), in R. v. Thomsen (1998), 40 C.C.C. (3d) 411 (SCC), the Supreme Court noted that while a driver is detained when held following an approved screening device ("ASD") demand, delaying the provision of RTC is a reasonable limit which is prescribed by law and justified by s.1 of the Charter.

52In this case, the first aspect of the forthwith requirement was met. PC Sabourin arrived on scene at 1:01 am and made the ASD demand around 1:11 am, some 10 minutes later. In my view, this 10 minute window was justified given the circumstances of this case as PC Sabourin was responding to a dynamic scene with a serious collision and attempting to ensure the safety of the driver. He was still investigating the matter and forming reasonable suspicion during this window. He had no prior grounds to know why the vehicle collided with the concrete pillar. The investigation properly started as a motor vehicle collision and naturally morphed into a drinking and driving investigation. An appropriate and reasonable amount of time was taken for this to naturally occur.

53The second forthwith requirement was also met in this case. The evidence establishes Mr. No provided his sample into the roadside device at 1:13 am. This was only 2 minutes after reasonable suspicion was formed and the breath demand. This was entirely reasonable: Quansah, supra at para. 48. PC Sabourin was diligent and mindful of the time exigencies by ordering the ASD and administering the test forthwith. As explained by Justice Code in R. v. Walsh, [2019] OJ No. 1859 at paras. 25-26, an officer does not have to carry their own ASD in their cruiser and the law permits an officer to call for an ASD to be brought promptly to their location. That's what happened here. This occurred within 2 minutes which in the circumstances, was reasonable. I would find no violation of s.8 on this basis.

54For similar reasons, there is no s.10(b) violation because the ASD demand was made forthwith after reasonable suspicion was formed and Mr. No provided a sample of his breath forthwith after the timely demand. I find it wasn't reasonable or practical for Mr. No to exercise his RTC in this short time frame as PC Sabourin knew the ASD was going to arrive within minutes, and it did. See R. v. Torsney (2007), 2007 ONCA 67, 217 CCC (3d) 571 (Ont. CA) at para. 12; R. v. Latour (1997), 34 O.R. (3d) 150 (Ont. C.A.). Stated otherwise, I conclude that the breath sample was provided within the relevant forthwith window. If it was just outside this window, it was still "forthwith" for purposes of the law as there was with no real opportunity to exercise one's RTC.

55Similarly, Mr. No was given his RTC without delay, that is, immediately in compliance with the direction in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460. The forthwith argument, however construed, fails.

(iv) The Informational and Implementational Arguments

56The next argument concerns both the scope of the informational and implementational duties on the police to facilitate RTC. Mr. Dos Santos urges the court to find as a fact that what PC Sabourin told Mr. No was inadequate. Specifically, he never asked Mr. No if he had had his own lawyer, he could call a lawyer of his choosing and Mr. No never requested duty counsel who was foisted on him without his consent. Further, he urges a finding that PC Sabourin was obligated to assist Mr. No in implementing his RTC of choice by providing with him the tools to do so and failed in this duty.

57Respectfully, I disagree with the defence position. On this record, I find as a fact that Mr. No was adequately informed about his RTC and how to exercise his RTC including that he had the choice but didn't have to, speak with duty counsel. I find Mr. No knew he could speak to a lawyer of his choosing and never asked for a specific lawyer. Further, he never complained about his advice from duty counsel.

58Mr. Dos Santos relied on the cases of Ali and Manuel to advance the proposition that where a detainee does not have a specific lawyer, the police have a duty to provide the detainee with both the knowledge and use of tools, such as a telephone book, to find his own lawyer before referring him to duty counsel. There are some cases that have held that a failure by the police to do this is called "steering" or "funneling" to duty counsel and is unconstitutional. In R. v. Henry, [2019] O.J. No. 3347, Justice Silverstein considered a similar argument and took an inventory of the cases from the Ontario Court of Justice (apart from Ali and Manuel) that have supported this interpretation: R. v. Sakharevych, 2017 ONCJ 669; R. v. Middleton, 2018 ONCJ 387; R. v. Della-Vedova, [2018] O.J. No. 1596; R. v. Ferose, 2018 ONCJ 305; R. v. McFadden, 2016 ONCJ 777 and R. v Vlasic, [2016] O.J. No. 6892.

59In response, Mr. Gillen relied on the summary conviction appeal decision in Ruscica which is appellate authority that did not adopt the reasoning in Ali and Manuel. Mr. Gillen also pointed to the appellate authority in R. v. Zoghaib, [2005] OJ No. 5947, aff'd [2006] OJ No. 123 (CA) as being dispositive.

60I find the reasoning and broad propositions advanced in the above cases persuasive but like Silverstein J. in Henry, applying the principle of stare decisis, I cannot find a s.10(b) violation on this record. In R. v. Sivalingam, [2019] OJ No. 1975 (Ont. Ct. J.), Schwarzl J. reviewed the binding authority on point and stated as follows:

46 In the summary conviction appeal of R. v. Ferose, 2019 ONSC 1052, [2019] O.J. No. 845 (S.C.J.) at ¶ 73 the Court provided a helpful digest on this issue:

In accordance with the reasoning of the Court of Appeal for Ontario in R. v. Richfield, 178 C.C.C. (3d) 23 (Ont. C.A.), R. v. Littleford, 86 C.R.R. (2d) 148 (Ont. C.A.), and the decisions of Charney J. in R. v. Hudson, 2016 ONSC 5582, Fragomeni J. in R. v. Zoghaib, 69 W.C.B. (2d) 166, affirmed [2006] O.J. No. 1023 (Ont. C.A.) and Durno J. in R. v. Antoninas, 2014 ONSC 4220, 323 C.R.R. (2d) 1, where a detainee:

a) does not request specific counsel and/or such specific counsel is unavailable;

b) is afforded an opportunity to speak to specific counsel and/or duty counsel (if specific counsel not requested and/or not available) in a private setting;

c) does not express any complaint or raise any issue as to the advice provided either after speaking to counsel or at any later date including the voir dire;

and

d) does not claim any harm/prejudice as a result of the advice provided,

it is unlikely that any breach of the detainee's s. 10(b) interests will be found, and if any such breach is found, the impact of such breach will be minimal.

In Henry, Justice Silverstein did not have the benefit of Sivalingam but having read his reasons as a whole, they are not incongruent. At para. 63, Justice Silverstein wrote:

In other words, the law in Ontario is that the police, when they first arrest an accused, satisfy their informational Charter obligations if they tell the accused exactly what the police told the accused in Zoghaib. Put another way, there is no obligation to inform an arrestee, when first arrested, that he has the right to access resources to help him choose counsel. However, an obligation to provide this latter information may nonetheless arise over the course of their dealings with the arrestee thereafter. (emphasis in original)

(v) Evidence and Findings

61Turning to the application of the above principles to this case. Mr. No was arrested at 1:13 am. PC Sabourin testified he read Mr. No RTC from the back of his notebook, which contains pre-printed information about the content of RTC. PC Sabourin was not asked to read this into the record as he was employed with the DRPS at the time and later moved to the Toronto Police Service and was required to return his notebooks to the DRPS. PC Sabourin summarized what he told Mr. No:

"I asked Mr. No if he understood the charge. He said yes. I told him he has the right to telephone any lawyer he wishes and if he doesn't have a lawyer and would like a legal aid lawyer, a number would be provided for him and he would be put in contact with a legal aid lawyer".

62The Crown also called PC Tyler who was partnered with PC Sabourin and he was asked to read the content of the RTC from the pre-printed part of his notebook into the record. It contains the full gamut of RTC including information about choosing one's lawyer of choice and the provision of duty counsel for free. There's nothing to suggest that his notebook would have been any different than PC Sabourin's at the time of this investigation as both were members of the DRPS at the time. I'm satisfied PC Tyler's evidence along with PC Sabourin's evidence and Mr. No's acknowledgement of receiving "full" RTC at the roadside is sufficient evidence that PC Sabourin complied with his informational duties. Importantly, it was intimated to Mr. No that he had the right to call any lawyer of his choosing as well as a "legal aid lawyer". I find the information to be adequate in light of the Court of Appeal's decision in R. v. Devries, 2009 ONCA 477 at para. 22 where Doherty J.A stated:

The informational component of s. 10(b) has two parts. The first is apparent in the language of the section, while the second is a product of the jurisprudence. Section 10(b) expressly requires that the detainee be told of his or her right to retain and instruct counsel without delay. In R. v. Brydges, [1990] 1 S.C.R. 190, the Supreme Court of Canada extended the informational component of s. 10(b) to include the requirement that the detainee must be informed of the existence and availability of duty counsel and Legal Aid.

63In cross-examination, Mr. No admitted he was given "full" RTC. He was asked if he heard what PC Tyler read into the record and whether it was the same as what PC Sabourin told him. He said "[I] believe he did". However, he also said he didn't understand his RTC when they were read to him but never told PC Sabourin or any police officer for that matter, his alleged lack of comprehension. Instead, his answer was "I just said yes". Mr. No also added he understood that he had a right to a lawyer as he had grown up with his friend, Simon Park, who was a lawyer. Mr. No said he never asked for "duty counsel" but instead told PC Sabourin he had a lawyer but never told him it was Mr. Park because PC Sabourin never asked. He agreed to speak with duty counsel because he wasn't aware he could speak to a lawyer of his choosing and was never given an option of contacting Mr. Park. The following day, he spoke to Mr. Park on his own accord and found out he wasn't practicing law anymore but he would have put him in touch with Mr. Dos Santos.

64Mr. Park didn't testify thus I do not know what he would have told him as a non-practicing lawyer. I'm prepared to assume that he would have acted as a conduit to put him in touch with Mr. Dos Santos who does practice law. However, the critical point is Mr. No admitted in his evidence that he didn't tell anybody about Mr. Park at any point in his dealings with the police. Nor did he voice any lack of comprehension issues to the police at any point. This is not a case where the detainee asked for a specific lawyer or even a third party to assist him in getting in touch with his private lawyer. Mr. No chose duty counsel as his lawyer of choice. PC Sabourin had no obligation to probe the sincerity of his decision.

65In R. v. Owens, 2015 ONCA 652, the Ontario Court of Appeal stated that the obligations on the police to assist a detainee in implementing their RTC are not absolute. Absent invocation of the right to counsel and reasonable diligence by the detainee, police duties to provide a reasonable opportunity to consult counsel and to refrain from soliciting evidence will either not arise or will be suspended: Sinclair, supra at para. 27. To repeat, Mr. No invoked his RTC, which included speaking with duty counsel. This right was fulfilled as he spoke to duty counsel A. Murphy from 1:55 am to 1:58 am. Further, he never complained about his advice.

66I reject Mr. No's evidence that he didn't understand he could speak to a lawyer of his choosing because it's inconsistent with his evidence that he was given "full" RTC which includes information that he could speak to a lawyer of his choosing or a legal aid lawyer (duty counsel). If Mr. No was confused, it was incumbent on him to raise the issue when it did not manifest on its own during his dealings with the police. For example, there were no language issues and Mr. No had declined medical attention suggesting he wasn't injured. The only issue that existed was Mr. No getting sick at the police station, which could speak to impairment or other issues but not cognitive deficits. This is not a case of "special circumstances" which require the police to take other steps to make sure the detainee understands their RTC. There's also nothing on the record to suggest Mr. No didn't understand his RTC at the time he exercised it or any other circumstances triggering any additional obligations as per Henry. See also R. v. Vanstaceghem (1987), 36 C.C.C. (3d) 142 (Ont. C.A.). In Zoghaib, the Court of Appeal held in their endorsement at para. 1 the following which applies here:

On the findings of fact made by the trial judge, any subsequent misapprehension by the appellant of her right to contact her own lawyer as opposed to duty counsel was a product of her own thought processes, none of which were conveyed to or known to the officer. The Summary Conviction Appeal Court correctly held that as a matter of law the appellant's unexpressed desire to speak to her own lawyer could not result in a breach of s.10(b) of the Charter.

67Moreover, despite PC Sabourin not recording Mr. No's answer that he wanted to speak with duty counsel in his notebook, I accept his evidence that his arrest report, which was completed later, is a more reliable record. PC Sabourin did record his answer of duty counsel in his report. In any event, he recalled Mr. No asking for duty counsel while testifying and I accept his evidence.

68The parties did not call evidence of Mr. No's booking procedure. After being taken to the police station, Mr. No was sick and had to use the washroom. At 1:40 am, he was paraded which lasted 6 minutes. He had to vomit again before he spoke with duty counsel at 1:55 am. He was able to speak with duty counsel in private and never voiced any concerns. When viewed as a whole, PC Sabourin was attuned to the importance of RTC of choice and did not shirk his constitutional duties when approaching this issue with Mr. No. I was impressed with his evidence that if Mr. No had asked, he would have given him the option to look in a phone book or make multiple calls to third parties, within reason, to implement his RTC. Even though not all of his specific steps involving RTC were recorded in his notes, he was confident that he followed his usual practice of making sure the detainee was fully given his RTC and fully permitted to exercise the right depending on what was asked. There's nothing on this record that causes me to question he deviated from his usual best practice.

69In sum, Mr. No's evidence was not reliable on the core issues impacting RTC. In the end, he testified he couldn't recall what if anything the police told him about speaking to a specific lawyer. I find he was told the correct and fulsome information about his RTC and chose duty counsel.

70In Ruscica, the detainee didn't ask for a specific lawyer and unlike this case, didn't specifically request duty counsel. The trial judge found no s.10(b) violation which was upheld on appeal, where it was concluded he was not improperly steered to duty counsel. In this case, Mr. No also didn't ask to speak to a specific lawyer but did ask to speak with duty counsel. There was no steering towards duty counsel.

71Consequently, there was no s.10(b) violation.

72Given my conclusion on the s.10(b) application, I need not consider s.24(2).

73However, if for some reason, I have erred in my assessment, I would not be inclined to exclude the evidence because Mr. No was able to get legal advice and did not complain about it at the time. His complaint in hindsight does not shift what would have been a minimal impact on his Charter protected rights. On balance, I would have included the evidence.

IV. CONCLUSION

74For the above reasons, the application under s.7 succeeds and all of Mr. No's compelled utterances are excluded under s.24(1). However, the application under s.10(b) fails.

75As requested, a copy of this ruling will be delivered to the parties prior to the return date on September 6, 2019 and attached to the information as the next Exhibit on the blended hearing.