Court File and Parties

Ontario Court of Justice

Date: 2018-08-01

Court File No.: Central East – Newmarket 4911-998-17-02521-00

Between:

Her Majesty the Queen

— and —

Sixto Reyes

Before: Justice A.A. Ghosh

Heard on: June 4th and 5th, and July 4th, 2018

Reasons for Ruling on Charter Application and Judgment released on: August 1st, 2018

Counsel:

• R. De Chellis, for the Crown
• A. Little, for the defendant Sixto Reyes

Ghosh J.:

Overview

[1] Mr. Sixto Reyes was tried before me for operating a motor vehicle while having an excess blood alcohol concentration, contrary to section 253(1)(b) of the Criminal Code. The defendant was stopped by the police during a mobile RIDE investigation and failed an approved screening test. Upon arrest, the investigating officer read the right to counsel to Mr. Reyes. After initially expressing a desire to speak to a specific counsel that he could not identify, the applicant consulted duty counsel before the breath testing procedure.

[2] The applicant submits that the police violated his s. 10(b) Charter right to counsel in multiple ways. It is submitted that the officer violated the right to counsel of choice by first presenting the "binary option" between identified counsel of choice and duty counsel and then "steering" him to duty counsel. Additionally, it is submitted the police failed to provide sufficient tools to choose a lawyer. Accordingly, the defence applies to exclude the breath readings pursuant to section 24(2) of the Charter.

Summary of the Arrest

[3] Two officers were seated in an unmarked cruiser conducting mobile RIDE investigations into drivers leaving the Pro Café, a well-known liquor licenced establishment in Vaughan. It approached one o'clock in the morning. The officers observed a male leaving the area of the front entrance of the club and then entering a parked vehicle.

[4] The vehicle was driven out of the lot and onto the roadway. The police stopped it. Mr. Reyes was the driver. The police informed him that they were conducting a sobriety check.

[5] Constable Vitale, the investigating officer, detected alcohol on the breath of Mr. Reyes. Upon inquiry, the defendant eventually admitted he had consumed some alcohol earlier. Constable Vitale issued an approved screening demand. Mr. Reyes failed the test and was arrested for operating a vehicle with an excess blood alcohol concentration.

Summary of the Evidence Regarding the Right to Counsel

[6] The investigating officer read to the applicant the standard police-issued language for the right to counsel from the back of his notebook. Constable Vitale asked if Mr. Reyes had his own lawyer or if he would wish to consult duty counsel. The applicant replied that he would consult his own lawyer who he had recently retained to review an employment contract. Mr. Reyes did not provide any means by which the officer could identify and contact this lawyer.

[7] Constable Vitale asked the applicant, given the absence of any means to identify and contact counsel, whether or not he wished to consult duty counsel. Mr. Reyes indicated that he would consult duty counsel. The defendant was taken to a nearby RIDE truck for the conduct of the breath tests. Before the tests were taken, he spoke privately to duty counsel.

[8] Mr. Reyes testified on the application. He provided evidence that he had the contact information of his counsel of choice on his phone, but the phone had been drained of power earlier in the evening. The applicant testified that he understood his only option was to speak to his own lawyer or to duty counsel.

[9] Had the officer provided him with access to the internet, he would have searched for counsel with experience in defending drinking and driving offences. Had the officer informed him that he could contact friends or family to obtain contact information for counsel, he would have contacted his sister. She had assisted him in the past with the consultation of counsel.

Analysis

[10] The following issues require determination:

i. Right to counsel - Identified counsel of choice: Did the police violate the applicant's right to counsel of choice by failing to make sufficient inquiries or offer tools by which to contact an identified counsel of choice?

ii. Right to counsel – Unidentified counsel of choice: Did the police violate the applicant's right to consult "any" counsel he wished by presenting the binary option between an identified counsel and duty counsel? Should he have been provided tools to assist in the search for counsel of choice? Was he inappropriately steered to duty counsel?

iii. Charter remedy: If the applicant's s. 10(b) Charter right to counsel was violated, should the breath readings be excluded pursuant to s. 24(2)?

Positions of the Parties

[11] The applicant submits that the police violated his right to counsel in multiple and interconnected ways. Firstly, by presenting a "binary choice" to consult either an identified counsel of choice or duty counsel, the police failed to explain and implement the applicant's right to consult "any" counsel he wished. Secondly, the officer further failed to implement the right to counsel of choice by not providing access to the internet, a phone directory or persons known in order to search for and select a lawyer. Finally, in failing to implement the right to counsel of choice, the officer then unconstitutionally "steered" the applicant to duty counsel. Accordingly, the readings should be excluded.

[12] The Crown responds that the police properly informed the applicant of his right to consult any lawyer he wished, which included counsel of choice and duty counsel. The officer made reasonable inquiries in order to ascertain the identity of the counsel mentioned by the applicant. Mr. Reyes was not diligent in exercising his right to counsel. Ultimately the applicant consulted duty counsel and at the time failed to express any dissatisfaction with the advice received. The readings should be admitted.

[13] I have considered all of the jurisprudence presented. I understand that there is no specific appellate direction regarding the "binary choice" and "search tools" submissions. There is sufficient appellate direction regarding the scope of the right to counsel to guide the determination of these issues.

The Right to Counsel – General Principles

[14] The police have a duty to inform a detained or arrested party of the right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel. This is the informational component of the right to counsel: R. v. Bartle, [1994] 3 S.C.R. 173 at para. 17.

[15] The police are specifically required to inform the detainee of the right to access free duty counsel for preliminary legal advice, but this "need consist of no more than telling a detainee in plain language that he or she will be provided with a phone number should he or she wish to contact a lawyer right away.": Bartle, supra, para. 28.

[16] In R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, the Supreme Court observed that "there are specific, narrowly defined circumstances in which s. 10(b) prescribes an additional informational obligation upon the police. In R. v. Prosper, [1994] 3 S.C.R. 236, Lamer C.J. described this additional informational duty, and the circumstances that trigger it…": para. 31.

[17] The now well-known Prosper warning only arises where the detainee is diligent but unsuccessful in contacting counsel and then changes his or her mind and decides not to pursue legal advice. In such a circumstance, the police must inform the detainee both of the right to a reasonable opportunity to contact counsel and of the police duty to "hold off" eliciting evidence while that opportunity is provided. No other examples of "specific, narrowly defined circumstances" warranting additional informational obligations on the police were identified in Willier.

[18] The police have two further duties regarding the right to counsel that are implementational in nature. Firstly, if a detainee has expressed a desire to exercise the right to counsel, the police must provide a reasonable opportunity to exercise the right. Secondly, during the time this reasonable opportunity is afforded, the police must refrain from eliciting evidence from the detainee. R. v. Bartle, para. 18.

Counsel of Choice – General Principles

[19] The right to select and consult one's own counsel is a facet of the right to counsel. Once a detainee expresses a desire to consult a specific lawyer, the police must afford a reasonable opportunity for consultation with the identified counsel and to hold off eliciting evidence until that opportunity has been provided: Willier, supra, para. 35.

[20] If the identified counsel is not immediately available, the detainee has the right to refuse to consult other counsel and to wait a "reasonable amount of time" for counsel of choice to respond. If the chosen lawyer is not available within a reasonable amount of time, the detainee is expected to exercise the right to counsel by consulting another lawyer and the police duty to "hold off" will be suspended: Willier, supra, para. 35.

[21] The right to consult counsel of choice is not absolute: Bartle, supra, para. 19 and Willier, supra, para. 24. This is particularly resonant at the initial investigative stage: Willier, supra, para. 24. The correlative duties on the police to facilitate consultation with selected counsel and to refrain from eliciting evidence are contingent on the detainee's reasonable diligence in attempting to contact counsel: Willier, supra, para. 33. In the absence of reasonable diligence, these duties on the police are either unengaged or suspended.

The Recorded Exchange – Right to Counsel

[22] The in-cruiser camera recording captured the relevant discussion regarding the right to counsel. The following exchange occurred upon arrest between Constable Vitale (PC) and the applicant (SR):

PC: So right now you are under arrest for operating a motor vehicle with over 80 milligrams of alcohol. It's my duty to inform you - you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you are charged with an offence you may apply to the Ontario Legal Aid Plan for assistance. 1-800-265-0451 is the number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now. Do you understand?

A: (inaudible)

PC: Do you wish to call a lawyer right now?

A: Yes I do.

PC: Do you have your own one, or do you want to call duty counsel, the free Legal Aid lawyer?

SR: I'm going to have my own counsel. Am I going to jail, sir?

PC: No. So, I'm going to explain to you what's going to happen. So what's your – what's your own counsel's name?

SR: I have a retainer right now and I'm sorry, at this point I'm actually not sure about her name, but I do have a counselor…

[23] An exchange ensued regarding the provision of the standard caution and approved instrument demand. Constable Vitale then returned to the right to counsel:

PC: Now you said that you have your own counsel, but you don't know their name?

SR: Yes sir.

PC: Can you explain, because, ah, we're going to have to call them.

SR: I actually retained a counselor because the fact that I'm having my contract for work reviewed.

PC: Okay, 'cause this is a criminal matter, right?

SR: I understand that sir, ah, so this is going to f--- me up.

PC: Okay Sixto, so –

SR: Yes, sir… This is going to f--- me up. I'm going to lose my job.

PC: Okay, Sixto, so you have to decide if you don't know their name or you don't know a number to call them, do you want to speak to duty counsel which is free legal aid?

SR: Would that allow me to actually have the option of contacting my lawyer after or – ?

PC: You can do, sure you can call your lawyer after, but I'm saying before you do your breath tests, like, if you can tell me a lawyer's name or give me a phone number to call them or some way to look them up, but if you don't know their name and you don't have any way to get a hold of them would you like to speak to duty counsel?

SR: At this point, I might have to actually, um, go with a duty counselor sir.

PC: Okay.

SR: And then I have to actually get the contact information because I recently just retained them for contract reasons for my work.

PC: Okay. So you understand that we are going to be doing two more breath tests at the RIDE truck?

SR: Understood sir.

Application to the Facts: Right to Consult an Identified Counsel of Choice

[24] The applicant expressed initially that he wished to consult his own lawyer. The officer asked for the name of the lawyer more than once. The applicant could not provide the name of the lawyer.

[25] The officer raised with the applicant whether or not there was "some way to look them up," or "any way to get a hold of them." At the time, the applicant did not indicate any means by which the officer could identify and contact his counsel of choice.

[26] Mr. Reyes testified that the name and phone number of this counsel could have been located on his cell phone at the time, but the phone had lost power earlier in the evening. He also testified that had the officer offered an opportunity to contact a friend or family member, he would have called his sister who had assisted him in the past with contacting a lawyer.

[27] I recognize the power imbalance between the police and detained parties and how it informs the assertion and exercise of Charter rights. The police, however, cannot read minds. The applicant's failure to mention any means by which to contact counsel of choice must be viewed through the lens of the officer's specific request for any information that could assist in facilitating contact with counsel. Constable Vitale testified that had he been informed of information in the cell phone or in the hands of a family member he would have pursued those avenues in order to facilitate consultation with counsel of choice.

[28] I find that the applicant failed to exercise any diligence in pursuing contact with identified counsel of choice. The applicant ultimately consulted duty counsel before submitting to the breath testing procedure. In the circumstances, the police duty to refrain from eliciting evidence was suspended.

Application to the Facts: Unidentified Counsel of Choice and the "Binary Option" of Identified Counsel or Duty Counsel

[29] In the absence of any demonstrated diligence in the pursuit of identified counsel of choice, the officer was not obligated to inquire about friends or family who might have information or to provide access to the internet or a directory. The applicant's position regarding the scope of the right to counsel of choice, however, goes beyond the facilitation of contact with any identified counsel.

[30] What if the detainee does not have a counsel of choice in mind, but would like to search for one? Does the applicant not have the right to search for his counsel of choice? Are the police Charter-bound to offer and provide a detainee with the tools to search for and ascertain counsel of choice?

[31] The police controlled the applicant's access to the outside world. Constable Vitale made the phone call to duty counsel. Mr. Reyes was unable to make outgoing calls and only had access to a telephone receiver in order to privately consult counsel. He was not offered access to the internet or a phone directory in order to search for a counsel of choice.

[32] As noted, the right to counsel of choice, particularly at the investigative stage, is not absolute. The detainee must be reasonably diligent in exercising the right to counsel of choice. Firstly, I disagree that Mr. Reyes was presented with a binary choice between identified counsel of choice and duty counsel. Constable Vitale informed the applicant of his right to consult "any" lawyer he wished, including duty counsel.

[33] Secondly, Mr. Reyes did not express to the officer any desire to search for a lawyer in order to obtain preliminary legal advice. There was an absence of diligence on this front as well. I have earlier set out the limited informational obligations on the police regarding the right to counsel.

[34] The Charter does not require the police to inform the detainee of any "right" to search for a lawyer for preliminary advice. In circumstances where there is no diligence demonstrated in the search for counsel, the Charter does not require the police to offer access to the internet, friends and family, or a phone directory.

Steering to Duty Counsel

[35] The applicant's submission that he was steered by the officer to duty counsel must be assessed within the context that duty counsel was later raised. In the initial recitation of the right to counsel, again, Mr. Reyes was informed of his right to consult "any" lawyer he wished. Constable Vitale made repeated inquiries for any information that would assist in contacting counsel of choice. As it became apparent that this pursuit would be fruitless, the officer simply asked the applicant whether or not he would like to consult duty counsel. Mr. Reyes agreed to consult duty counsel and did so.

[36] The Supreme Court addressed a similar "steering" submission at paragraph 43 of Willier, supra. Mr. Willier had attempted to contact counsel of choice and expressed to the officer a desire to wait for a return call. The officer "reasonably" informed the defendant that it was unlikely that counsel of choice would respond in a timely way on a Sunday and reminded him of the immediate availability of duty counsel.

[37] The Court noted: "In no way did the police interfere with Mr. Willier's right to a reasonable opportunity to consult with counsel of choice by simply reminding him of the immediate availability of free Legal Aid after his unsuccessful attempt to call" counsel of choice.

[38] While the facts of this case are different, the analysis in Willier on the issue of "steering" resonates. Constable Vitale had repeatedly expressed an intention to facilitate contact with counsel of choice, even in the absence of any diligence displayed by Mr. Reyes. In raising again the option of duty counsel the officer was not steering the applicant. He was facilitating the obtaining of legal advice before the breath tests. I find no violation of the applicant's s. 10(b) Charter right to counsel.

Section 24(2) of the Charter and Balancing the Grant Factors

[39] In the event that I have erred in my determination of the Charter application, I would not exclude the readings. In determining whether or not to exclude the breath samples pursuant to s. 24(2) of the Charter, I am required to assess the effect of admission of the evidence on societal confidence in our justice system. In conducting this analysis, I am required to balance the seriousness of the state-infringing conduct, the impact of the breaches on Charter-protected interests of the accused, and the societal interest in adjudication on the merits.

R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32

Seriousness of the Violations

[40] While a violation of the right to counsel is generally serious, I would not find any breach here to be serious. The applicant exercised no diligence in pursuing counsel of choice. He readily consulted duty counsel and expressed no dissatisfaction at the time with the advice received. His testimony that he was dissatisfied with the advice does not undermine this fact. I will return to this.

[41] The police control over a detainee's access to the outside world and its institutionalized failure to offer tools to search for counsel of choice are certainly systemic in nature. However, there is no evidence of a Charter-deficient systemic approach to facilitating the right to counsel of choice when the detainee is reasonably diligent. As the officer observed, had he been asked, there was a host of avenues he would have pursued to implement the right to counsel of choice.

Impact of any Breaches on Charter-Protected Interests

[42] Our Court of Appeal recently addressed the scope of this factor in R. v. Jennings, 2018 ONCA 260, [2018] O.J. No. 1460. The applicant submits that the analysis in Jennings is restricted to section 8 violations. I need not resolve this.

[43] It is submitted that the applicant's testimony that he was dissatisfied with the legal advice received heightens the impact of the violation on his Charter-protected interests. Mr. Reyes offered a reason why he said nothing to the police at the time. His expressed dissatisfaction with the legal advice was informed by his belief that the police and duty counsel were all employed by the government and, thus, duty counsel would not have been invested in his best interests.

[44] This erroneous perception does not have any objective support. Duty counsel, while government funded, have the same duty of fidelity to their clients as any other counsel. The impact of any breach on the applicant's Charter-protected interests would have been marginal, supporting the admission of the breath tests.

Societal Interest in Adjudication on the Merits

[45] There is a well-established and compelling societal interest in determining drinking and driving cases on their merits. The readings are highly reliable evidence and are crucial to the Crown case. While not a determinative consideration, it is a gross understatement to observe that we have a drinking and driving problem in York Region.

Balancing the Grant Factors

[46] In weighing the Grant factors, the reduced seriousness of any violation and the lack of any meaningful impact on Charter-protected interests tips the analysis in favour of admission. The applicant failed to exercise any diligence and received legal advice before providing samples of breath pursuant to a lawful demand. The compelling societal interest in adjudication on the merits supports the admission of the readings. In balancing the application of the Grant factors, the readings must be admitted.

[47] The Charter application is denied. Mr. Reyes was operating a motor vehicle with a blood alcohol concentration exceeding the legal limit. I find the defendant guilty. My thanks to counsel.

Released: August 1st, 2018

Signed: "Justice A.A. Ghosh"