Court Information

Ontario Court of Justice

Date: January 25, 2017

Court File No.: Newmarket 15 Ch03220

Parties

Between:

Her Majesty the Queen

— and —

Christopher Blackwood

Before the Court

Justice: David S. Rose

Heard: January 24, 2017

Reasons for Judgment Released: January 25, 2017

Counsel

For the Crown: Mr. Costain

For the Defendant Christopher Blackwood: Mr. Mota

Judgment

David Rose, J.:

Facts

[1] Mr. Blackwood is charged with one count of Over 80 operation from April 17, 2015.

[2] Mr. Mota made concessions during argument which have the effect of reducing the trial issue to whether or not Mr. Blackwood's rights under s. 10(b) have been breached, and if so whether evidence in the form of breath test analyses should be excluded. Because the issues have been so narrowed, my review of the evidence is narrowed accordingly.

[3] On April 17, 2015 at about 10:04 pm, PC Duchesne was on patrol north bound on Jane Street when she stopped two motorcycles at Langstaff. One of them pulled over, but the second one did not, even after being told by Duchesne to pull over. The traffic stop was initiated because the police had received information about two motorcyclists leaving a bar in an impaired condition. The second motorcycle was ultimately stopped by Detective Gay at Jane and Rutherford Road at 10:09. He noted indicia of impairment. PC Racco arrived on scene. She spoke with Mr. Blackwood, developed a reasonable suspicion that he had alcohol in his body and read him an ASD Demand. Mr. Blackwood failed the ensuing test and was arrested. PC Racco's car had inoperative video recording that night, so a third officer on scene PC Salmon took over the custody of Mr. Blackwood, at 10:15. PC Salmon read Mr. Blackwood rights to counsel and the breath demand at 10:20. The Defence took no issue with the wording of the breath demand or rights to counsel. He requested Duty Counsel.

[4] When Mr. Blackwood arrived at 2 district for breath testing he asked to speak with a lawyer Carol Cameron. After Mr. Blackwood was booked into the station Cst. Salmon called Carol Cameron. That was at 10:58 pm. He testified that he got the phone number from a Google search. No one answered that call and Salmon left a message. At 11:19 he left a second message because there was still no response. After the second message Salmon went to the cell block to see Mr. Blackwood. He said that he could not reach Ms. Cameron and did he want him to leave another message or call duty counsel? Mr. Blackwood declined. Cst. Salmon could not remember the conversation verbatim, but testified that he told him of the two attempts to reach his lawyer. Salmon was cross examined on the number he called. He wasn't sure if it was a cell phone or other phone, or whether Ms. Cameron was part of a firm or not. He testified that he called the number twice because he knew it was a number for the lawyer Carol Cameron. Exhibit 3 showed the Law Society of Upper Canada listing for the lawyer Carol Cameron with the phone number (416) 564-1410. PC Salmon is sure that that was the number he called for Mr. Blackwood, namely, but wasn't sure which search terms he used to get it that night.

[5] Cst. Paterson testified that he was the Breath Technician who administered Breath testing on Mr. Blackwood that night. Exhibit 2 is a Certificate of Qualified Breath Technician completed by PC Paterson, and served on Mr. Blackwood after he gave two samples. Mr. Blackwood's readings were 130 mg % and 120 mg at 23:37 and 23:59 on 17 April 2015.

[6] The defence called no evidence.

Issues

[7] In argument Mr. Mota abandoned the s. 8 argument. This was a fair concession. He argues that Mr. Blackwood's rights under s. 10(b) of the Charter were violated because PC Salmon should have gone beyond getting the number for Ms. Cameron, and calling twice. Additional efforts should have been made. Mr. Costain resists, arguing that Cst. Salmon waited a reasonable period of time before calling a second time and going back to Mr. Blackwood. He concedes that there was a constitutional violation, but of a technical nature, one which is not serious. He says that the evidence should not be excluded if the test under s. 24(2) of the Charter is properly applied.

[8] When the arrestee asserts a desire to speak with counsel, but later changes their mind, there is an additional obligation on the police. It is sometimes called the Prosper caution, from the Supreme Court of Canada decision R. v. Prosper where Lamer CJC said, at par. 51:

… once a detainee asserts his or her right to counsel and is duly diligent in exercising it, thereby triggering the obligation on the police to hold off, the standard required to constitute effective waiver of this right will be high. Upon the detainee doing something which suggests he or she has changed his or her mind and no longer wishes to speak to a lawyer, police will be required to advise the detainee of his or her right to a reasonable opportunity to contact counsel and of their obligation during this time not to elicit incriminating evidence from the detainee.

[9] More recent decisions from senior appellate courts have added gloss to this idea. In R. v. Willier 2010 SCC 37 the Court explained at par. 38 the nature of the Prosper caution this way:

…a Prosper warning is warranted in circumstances where a detainee is diligent but unsuccessful in contacting a lawyer and subsequently declines any opportunity to consult with counsel. Section 10(b)'s provision of a reasonable opportunity to consult with counsel is a fundamental guarantee aimed at mitigating a detainee's legal vulnerability while under state control. It affords detainees the chance to access information relevant to their self-incrimination and liberty interests: Bartle. The Prosper warning ensures that detainees are aware that their right to counsel is not exhausted by their unsuccessful attempts to contact a lawyer. This additional informational safeguard is warranted when a detainee indicates an intent to forego s. 10(b)'s protections in their entirety, ensuring that any choice to do so is fully informed.

[10] In the context of impaired driving four Ontario Court of Appeal decisions bear mentioning. In R. v. Richfield 2003 CarswellOnt 3114 the Appellant was arrested for impaired driving and given a Breathalyser demand. He asked to speak to a particular lawyer, and the officer duly called the lawyer's number. There was no answer and he left a message. After one hour he was told that his lawyer had not called back and asked if he wanted to speak with Duty Counsel for free legal advice. The Appellant declined this opportunity. The trial judge found this to be a breach of the Appellant's rights under s. 10(b) of the Charter. The Court of Appeal disagreed. By failing to consider the offer and availability of Duty Counsel once counsel of choice had not called back the trial judge fell into error. The Court of Appeal found that there was no violation of s. 10(b). R. v. Littleford is similarly decided.

[11] R. v. Traicheff 2010 ONCA 851 was another case factually similar to the case at Bar. There the Appellant asked for counsel of choice. The officer called the lawyer and got no reply. After 23 minutes the officer called Duty Counsel, who spoke to the Appellant. The trial judge found a Charter breach but admitted the evidence. The Court of Appeal agreed with the trial judge's comment that:

Appropriately the police should advise the detainee after waiting a reasonable period of time for his lawyer to return the call that no call has come in from his lawyer and ask him if he would like to consult another lawyer. Alternatively the police should ask the detainee whether he has another telephone number where his counsel of choice could be reached or give him a telephone directory to see if he could find his lawyer's name and another telephone number where he could be reached.

[12] Lastly, in R. v. Vernon 2015 ONSC 3943 (leave to Appeal refused at 2016 ONCA 211), the Respondent was arrested at 6:45 pm, read a Breath Demand and Rights to Counsel at 6:56pm. He asked to speak to a specific lawyer. At 7:30pm the officer placed a call to that lawyer and left a message. One minute later the officer called Duty Counsel, who spoke with the Respondent. The trial judge found that the police violated the Respondent's rights by 1) failing to inform him of his right to wait a reasonable amount of time for counsel of choice to call back; 2) failing to wait a reasonable amount of time for counsel of choice to call back and 3) not taking all reasonable steps necessary to contact counsel of choice. The breath evidence was excluded under s. 24(2). This finding was upheld by the Summary Conviction Appeal Judge.

[13] Applying this to the facts before me, I find that Cst. Salmon could have done more once he was of the view that Ms. Cameron did not call back. He could have asked Mr. Blackwood if he wanted to pursue alternative means to reach his lawyer and he could have asked him if he wanted to speak to another lawyer of choice. The traffic stop happened at 10:09 pm, and PC Salmon's belief that Counsel of Choice was not responding to his two voice mail messages was formed about one hour and 10 minutes later. The police still had approximately another half hour (if I include time to then speak to counsel) to pursue alternative counsel of choice options for Mr. Blackwood before the two hour period came up for the first test. The failure to take further steps in the case at Bar amounts to a s. 10(b) violation under the Charter.

Admissibility

[14] I would situate this violation at the less serious end of the scale. Cst. Salmon did make efforts to contact counsel of choice. Making two calls over 21 minutes was a genuine attempt by Cst. Salmon to put Mr. Blackwood in touch with his lawyer. This was not a pro forma exercise as was the case in Vernon (supra). I also take into account that Cst. Salmon asked Mr. Blackwood if he wanted him to make a third call, or to speak with Duty Counsel. The first factor of admissibility favours admission.

[15] I find that the impact of the Charter breach on the Accused is minimal. It is now axiomatic that the breath testing regime is minimally intrusive. I also take into account that Mr. Blackwood was offered Duty Counsel after PC Salmon advised him of the failure of Ms. Cameron to call back and he declined. The second factor favours admission.

[16] Lastly, Society always has an interest in the adjudication of cases on their merits. The question is by how much. In this case that interest is very high. The Breath Tests are reliable evidence and there is a serious problem with impaired driving in York Region.

[17] Balancing the factors, I would not exclude the Breath Test evidence in this case under s. 24(2) of the Charter.

[18] No other issues regarding the admissibility of the Breath Tests have been argued, and I find that the Crown has proven this case beyond a reasonable doubt. Mr. Blackwood is convicted.

Released: January 25, 2017

Signed: Justice David S. Rose