Court Information
Ontario Court of Justice
Date: June 18, 2018
Central West Region Brampton, Ontario
Parties
Between:
Her Majesty the Queen
-and-
Jeffrey Solomon
Reasons for Judgment
Before: Duncan J.
Counsel:
- N Schachter for the defendant
- P Quilty for the Crown
Facts
[1] The defendant is charged with exceed 80, offence date July 29, 2017.
[2] A police officer saw the defendant's car leaving from a back exit of a drinking establishment at about 2:40 am. She stopped it to check for driver sobriety. The defendant driver and his passenger were smoking cigarettes and creating a lot of smoke, she suspected, to mask other smells. The defendant had difficulty producing his driver's licence instead twice offering his Health card. His speech was slurred. The officer could smell alcohol coming from the interior of the car. Though the defendant denied drinking, the officer suspected that he had been and gave him an ASD demand. The defendant said that he had just rinsed with mouthwash so they waited for 15 minutes.
[3] The defendant then made 20 to 30 (!) "attempts" to provide a sample. He was warned that he could be charged with refusal and ultimately, at 2:59 am, gave a suitable sample that registered a "fail". He was arrested and given his rights to counsel. He wanted to call a particular lawyer though he could not remember the lawyer's name. It was eventually determined to be Gary Batasar.[1]
[4] Once at the police station, at 3:35 am, a call was placed to Mr. Batasar and a message was left. No after-hours or alternate number was provided in Batasar's phone message. The officer told the defendant that at that hour it was unlikely that Batasar would call, that free duty counsel was immediately available and that he could still speak to Batasar if he should happen to call back. The defendant agreed, and a call was placed to duty counsel. (see Willier infra)
[5] At 3:52 duty counsel called back and the defendant spoke to him/her. After he was finished that consultation he made no further request.
[6] At 4:08 the defendant was taken before the qualified technician who confirmed with the defendant that he had spoken to duty counsel and that he understood the conversation and the advice he had received. He told the defendant that if his lawyer (Batasar) called at any time that he could speak to him. Batasar did not call back.
[7] At 4:13 the QT made a demand. After a few attempts, suitable samples were obtained at 4:27 and 4:50 betraying BAC of 210 and 200 respectively. Note that when the first sample was taken, almost an hour had passed since the message had been left for Batasar.
[8] The defendant testified that after the officer left her message for Batasar she told him that they would wait a few minutes but then he would have to speak to duty counsel. He claimed that he spoke to duty counsel only because he felt that he had no choice. I do not accept this characterization of what occurred to the extent that it suggests that the officer deprived him of any choice. Rather it was the circumstances – it was 4 in the morning; his lawyer could not be reached and was unlikely to call – that left him with such limited options.
[9] The defendant also testified that a couple of days after his arrest and release, he looked up Mr. Batasar's web page. He produced a print-out from October 2017 – over two months after the offence – showing both the number called by the officer and a cell phone number. Another search done by the Crown on the day of trial, May 16 2018, showed that there was no second number at that time. If the cell number had been there in October, it had been removed from the web page by the time of trial.
No Reasonable Grounds for ASD?
[10] It is first argued that the officer did not have grounds to make the ASD demand. Specifically, it is argued that the officer could not rely on the smell of alcohol because it could not be determined that the smell was coming from the defendant as opposed to another source within the car, such as the passenger.[2]
[11] I dealt with and rejected this argument in R. v. Mason, [2013] O.J. No. 2822. To very briefly summarize what I said in that case: where there is an odour of alcohol coming from a car with more than one occupant, that odour is sufficient to support a suspicion with respect to any of the occupants. (see pars 6-16).
In short, suspicion is a belief in a mere possibility of criminal activity; a reasonable suspicion is one that has some objective facts to support it, as opposed to some purely subjective hunch or gut feeling.
[12] That a smell of alcohol coming from a confined space that includes the driver could be attributable to the passenger (or spilled alcohol, or an open bottle) does not deprive it of its ability to support a suspicion related to the driver. If it could be the driver or it could be the passenger, in my view there is a reasonable suspicion in respect of each of them.
[13] To require the elimination of other possibilities in my view is to misconstrue the meaning of "suspicion" and to effectively equate it with a standard of "reasonable grounds to believe" -- or higher. In fact it approaches the old rule in Hodges case, applicable to proof beyond a reasonable doubt on circumstantial evidence -- consistent with guilt and inconsistent with any other rational alternative conclusion.
[12] Mason was cited with approval and applied by Durno J. in R. v. Doyle, 2017 ONSC 1826, a binding decision. This argument must be rejected.
Violation of Right to Counsel?
[13] It is next argued that there was a violation of the defendant's right to counsel in two related respects: First, that the police should have done more to find an alternate phone number for Mr. Batasar and secondly, that the police should have reminded the defendant that he could call any lawyer he wished[3] and before offering duty counsel should have specifically asked if he wanted to call another private lawyer.
[14] As it happens, I recently dealt with these issues in R. v. Shariq, [2018] O.J. No. 2691, and adopt, without repeating, what I said in that case.
1. Sufficiency of Police Efforts to Facilitate
[15] Where a detainee has indicated his desire to speak to counsel, the police have a duty to assist him by providing the information necessary for him to attempt to contact counsel and making reasonable efforts to facilitate his doing so. In cases of counsel of choice where attempts to contact such counsel have been unsuccessful, the sufficiency of police efforts must be assessed. However, the test is not whether police could have done more; the test is whether what they did provided a reasonable opportunity to the detainee to contact counsel: R. v. Willier infra para 33; R. v. Shoker, [2016] O.J. No. 4563 (Sup Crt) pars 50-62). There are no hard and fast rules as to what is required. Each case is fact specific: R. v. Wilding, 2007 ONCA 853, [2007] O.J. No. 4776 (CA). Cases such as R. v. Maciel, [2016] O.J. No. 4788, that provide helpful suggestions as to steps that can be taken by police should not be read as mandating those steps in every case.
[16] In this case the defendant wanted to speak to a lawyer that he had in mind but did not know that lawyer's name or number. The officer called the defendant's father who only knew a first name and a very limited description. The officer deduced that it may be Batasar. She searched for and obtained a phone number, called and left a message. No after-hours number was provided on Batasar's recording.
[17] The defendant's argument that the officer should have done an internet search (or a more thorough one) for Batasar's web site to possibly find an after-hours or alternate number amounts to a contention only that she could have done more – which is not the test.[4] As in Shariq, it would be a reasonable assumption that if no alternate phone number is provided by the lawyer's answering service or message – that there is none; that the lawyer has some alternate system by which he is alerted when a message is left on the office line; or that the lawyer simply does not want to be bothered after hours: R. v. Wilson, [2016] O.J. No. 183. In my view the steps taken by the officer in this case were reasonable and demonstrated a sincere effort to assist the defendant.
[18] Duty Counsel: Even if the police efforts fell short of being reasonable, the defendant's acceptance of duty counsel either negates a finding of breach or mitigates the seriousness of it thereby tending to favour admission of the evidence. The following are some authoritative decisions on point:
Littleford – , [2001] OJ 2437 (CA) – left message on counsel's answering machine at 1 am – did nothing else such as look for home number – efforts called "perfunctory" – immediately called duty counsel – accused spoke to duty counsel and made no complaint or further request – provided samples – trial judge found accused seemed to be satisfied – Court of Appeal held no 10b breach.
Richfield – , [2003] OJ 3230 (CA) – named counsel called and message left with live monitor at 1:40 am – hour wait – defendant then offered duty counsel – declined – not offered other lawyer (see second argument below) – Court of Appeal held that police could have done more but defendant was not diligent – no breach.
Wilding – 2007 ONCA 853, [2007] OJ 4776 (CA) – police made reasonable efforts as found by trial judge but could have done more such as internet search – couldn't find a number – accused spoke to dc and was content – C of A doubtful that there was any breach but dealt with case under 24(2) – said that provision of duty counsel was particularly significant and attenuated the seriousness of any breach – that if there was a breach it was inconsequential and minor – no evidence of any likelihood of contacting or reaching lawyer at 3 am even if a phone number had been found.
Traicheff – [2007] OJ 4600 (trial) [2010] OJ 5355 (CA) – one call and left message on office answering machine around 1 am – trial judge found many other steps could have done including asking if there was another lawyer he wanted to call – 23 minutes after leaving message officer called duty counsel without asking if defendant wanted that – defendant spoke to dc and did not complain to police or mention his named lawyer again but did at trial where he testified that he did not know who duty counsel was and that he was far from satisfied – trial judge found a breach but no exclusion even under the more exclusion oriented pre-Grant regime – Court of Appeal affirmed
Willier – 2010 SCC 37, [2010] SCJ 37 – murder case – defendant spoke to duty counsel at time of arrest – next day attempted to call specific lawyer and left message – police almost immediately pointed out that his lawyer unlikely to call back until his office opened next day and pointed out immediate availability of duty counsel – defendant spoke briefly to duty counsel and expressed satisfaction – then interviewed and gave inculpatory statement – trial judge found breach – Court of Appeal and SCC reversed – no breach. Note that Court said that it was not open to a detainee to claim at trial that he was not satisfied with duty counsel when he raised no objection at the time.
[19] In my view, these authorities compel the conclusion that in this case there was either no breach of the right to counsel or, if there was, it is not a case where the evidence should be excluded under section 24(2). On the latter point, I find that the officer acted in good faith and went some distance to try to locate counsel for the defendant. Initially he didn't even know the counsel's name. The officer could have taken the position that without a name there was nothing she could do – but instead she went the extra mile.
2. Another Private Lawyer?
[20] With respect to the other 10b argument – that the defendant should have been asked if there was another private lawyer that he wanted to call – I repeat what I wrote in Shariq:
16 Finally, it is argued that there was a breach of 10b in the failure of the police to advise the accused, where counsel of choice could not be reached, of the right to call another private lawyer apart from duty counsel. I am not convinced that this is a legal requirement in the informational component of section 10b duties. The argument has its genesis in words used by the SCC in Prosper -- but that was before the duty counsel system became ubiquitous. I am not aware of any authoritative decision that affirms such an additional informational duty where duty counsel is immediately available, and the detainee is so informed.
17 To be clear, I am not suggesting that a detainee who is unable to reach counsel of choice cannot make a second choice. The passage from Richfield above affirms that he can -- but that it is up to him to make the request. As in Richfield, in this case there is no suggestion that the defendant had another lawyer or any wish to look for one.
[21] To clarify and expand briefly on my comments above: I refer in these passages to this point as concerning the informational component of the 10b duties imposed on police. More properly I think it should be viewed as involving both informational and implementational components, though the exact characterization does not really matter. The question is whether the police are always obliged to take this step.
[22] The authority that is usually cited in support of this argument is R. v. Traicheff supra. I discussed that decision in Wilson supra and concluded that the Court was not mandating that the "other private lawyer" advice and query take place in every case. Certainly there was no suggestion of that in Richfield or any of the other Court of Appeal cases referred to above. Rather in my view the Court in Traicheff was adopting the trial judge's suggestion of additional steps that might be "appropriate" in these situations:
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.
[23] As mentioned above, the issue of what is appropriate and reasonable on the part of police must be dealt with on a case by case basis. Here the defendant, having earlier been told that he could call any lawyer he wished, made no such request. Richfield suggests that it was up to him to do so. There is no evidence or suggestion in this case that the defendant may have had another lawyer that he wanted to call or the desire to search for one.[5] He didn't even know the name of the first lawyer that he wanted to consult. In my view in the circumstances of this case it cannot be said that the defendant was deprived of any information that he required or that the police failed to take reasonable steps to facilitate his exercise of his right to counsel. There was no violation of the defendant's right to counsel.
Conclusion
[24] There was no Charter infringement in this case. The evidence is all admissible and proves the charge beyond a reasonable doubt.
June 18, 2018
B. Duncan J.
Footnotes
[1] The defendant couldn't remember the name. The officer called the defendant's father who recalled it was an "Indian fellow named Gary". The officer was apparently familiar with Batasar and believed it might be him. The defendant confirmed it. There was some evidence that the defendant also found a piece of paper with Batasar's name in his wallet. I don't think it matters exactly how the name was determined but once it was, a number was found by either a directory or computer search.
[2] This argument is somewhat academic in that there was other evidence in this case to support the requisite suspicion, besides the smell of alcohol.
[3] The standard right to counsel advice read on arrest includes the statement that "You have the right to call any lawyer you wish".
[4] Specifically, with respect to failure to do any or a thorough internet search see Wilding infra.
[5] The suggestion sometimes made that a detainee who can't reach first counsel of choice and does not have a second choice should then be set loose to search and pick a random name out of the phone book or from a computer search seems to me to be a very dubious proposition – particularly when free duty counsel is immediately available. But it is not necessary in this case to deal with this issue.
