Court File and Parties
COURT FILE NO.: CR-15-2334 DATE: 20170405
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – SIU KWAN WONG Appellant
Counsel: Bradley Juriansz, for the Crown Maleeka Mohamed, for the Appellant
HEARD: March 10, 2017
Reasons on Summary Conviction Appeal
On Appeal from the Judgment of Justice J.F. Kenkel of the Ontario Court of Justice on March 3, 2016
Charney J.:
Introduction
[1] The issue in this appeal is whether the trial judge erred in finding that the appellant, Mr. Wong, waived his right to counsel prior to providing breath samples. The appellant contends that the trial judge erred in law and misapprehended the evidence when he ruled that the accused was given an opportunity to speak with a lawyer and declined to do so at the station. The appellant also contends that the trial judge erred in concluding that, in the circumstances of this case, it was not necessary for the police to give the accused a Prosper warning to ensure that his decision to waive the right to counsel was fully informed and voluntary.
Background
[2] On March 7, 2015 Mr. Wong was stopped at a R.I.D.E. drinking and driving spot check. The officer who spoke to him smelled alcohol on Mr. Wong’s breath. Mr. Wong provided a breath sample into an Approved Screening Device which registered a “fail” indicating a blood alcohol level over the legal limit. Mr. Wong was arrested by Officer Molodyko.
[3] Officer Molodyko testified that at 10:36 p.m. he provided Mr. Wong with his rights to counsel from the back of his memo book. He asked Mr. Wong if he understood, to which Mr. Wong replied “yes”. He asked him “do you wish to call a lawyer now” to which Mr. Wong replied “I would like to”. Officer Molodyko had no further conversation with Mr. Wong with respect to counsel.
[4] Officer Molodyko then read the caution and breath demand. At 10:41 p.m. Mr. Wong was turned over to Officer Lasseter for transport to the police station where he would be tested on an approved breath-testing instrument (an Intoxilyzer 8000C). Officer Molodyko went to the police station separately to set up the instrument at the station.
[5] Officer Lasseter left the scene with Mr. Wong at 10:42 p.m. and arrived at the police station at 11:00 p.m. Officer Molodyko was not present when Mr. Wong was booked. Officer Lasseter testified that Mr. Wong was asked if he was read his rights to counsel, and noted that Mr. Wong declined his rights to counsel. Officer Lasseter testified that the booking sergeant would have either asked the accused to read the sign on the wall in the booking area containing the rights to counsel or would have read it to him. He did not recall which was done in this case. Then the booking sergeant would give the accused a chance to respond whether they would like to speak to a lawyer or duty counsel. Officer Lasseter could not recall whether or not Mr. Wong indicated that he understood his rights to counsel. Officer Lasseter did not know the responses given by Mr. Wong to Officer Molodyko at the scene.
[6] Officer Lasseter testified that during the transport to the station he spoke to the accused about the process at the station and advised Mr. Wong that if he wanted to speak to a lawyer the police would provide that opportunity for him. He told Mr. Wong that duty counsel could be contacted at the station. Officer Lasseter agreed that the first time Mr. Wong declined counsel was at the station.
[7] At that point Mr. Wong was turned over to the custody of the breath technician (Officer Molodyko) for testing. Officer Lasseter testified that he did not arrange for Mr. Wong to speak to counsel before turning him over to Officer Molodyko because Mr. Wong had declined to speak to counsel. Officer Molodyko testified that he did not review the right to counsel again with Mr. Wong after receiving custody of him at the station because the information he received from Officer Lasseter was that Mr. Wong had decided not to talk to a lawyer.
[8] The trial judge dismissed the defence motion alleging a breach of s. 10(b) of the Charter and therefore did not exclude the breath tests as evidence under Charter s. 24(2). He found the accused guilty of driving over 80 contrary to s. 253(1)(b) of the Criminal Code. The accused was sentenced to a fine of $1,200 and one year driving prohibition. The driving prohibition was stayed by court order dated March 21, 2016 pending the hearing of this appeal.
Analysis
[9] The trial judge concluded that at the time of his arrest Mr. Wong was advised of his right to speak with a lawyer. This point is not contested in this appeal.
[10] The trial judge also accepted Officer Lasseter’s evidence that during the booking process the booking sergeant reviewed the right to counsel with the accused by using the sign on the wall where the advice is printed. The defence contends that there was no evidence as to what was written on the sign, but this is incorrect. At p. 67 of the transcript defence counsel asked Officer Lasseter:
Defence: “Now you indicated that there was a sign on the wall… Officer: Yeah Defence: … and that those are the rights to counsel? Officer: “Yes, it does”.
[11] The “rights to counsel” has a specific meaning in Canadian law, and in my view this question and answer leaves no doubt as to the contents of the sign.
[12] The appellant takes particular issue with this statement from the trial judge’s recitation of facts in his oral reasons (at p. 85):
He [Officer Lasseter] could not remember whether the accused read the sign or the Staff Sergeant read it for him, but he recalled that the Staff Sergeant confirmed the accused’s understanding. When asked by the Staff Sergeant whether he wished to speak to a lawyer the accused declined saying he did not wish to speak to counsel.
[13] The appellant points out that while there was evidence to support most of that paragraph, there was no evidence to support the statement “he recalled that the Staff Sergeant confirmed the accused’s understanding”. In his testimony Officer Lasseter stated that while he believed that the Staff Sergeant asked Mr. Wong if he understood his rights to counsel, he could not recall whether or not Mr. Wong indicated that he did understand those rights (transcript, p. 61).
[14] I appreciate that the trial judge’s oral reasons at this point are subject to two different interpretations. The first, proposed by the Crown, is that the word “confirmed” simply meant “asked” or “checked”. The second interpretation, proposed by the defence, is that “confirmed” suggests that the Staff Sergeant obtained a positive affirmation from Mr. Wong. The former interpretation is consistent with the evidence, the latter is not.
[15] The statement must, however, be placed in the context of the trial judge’s reasons as a whole. As the Supreme Court of Canada stated in R. v. Villaroman, 2016 SCC 33, at para. 15:
[I]t is important to remember that a trial judge’s reasons for judgment should not be “read or analyzed as if they were an instruction to a jury”: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 525. Rather, the reasons must be “read as a whole, in the context of the evidence, the issues and the arguments at trial, together with ‘an appreciation of the purposes or functions for which they are delivered’”: R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at para. 16, citing R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16; see also R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 11.
[16] The evidence of Officer Molodyko was that the appellant understood his rights to counsel when he was read them upon arrest. The trial judge makes specific reference to this evidence at the outset of his reasons relating to the informational component of s. 10(b) where he states (at p. 86):
The accused was properly advised of his s. 10(b) rights in detail by Constable Molodyko. He understood that advice. The police complied with the informational component of s. 10(b).
[17] Accordingly, even if the trial judge misapprehended Officer Lasseter’s evidence on this point, it was Officer Molodyko’s evidence that was the basis for the trial judge’s determination that the informational component of s. 10(b) had been met. In addition, it is a reasonable inference that if the accused understood his rights to counsel when read them by Officer Molodyko at 10:36 p.m. he continued to understand the same rights when read them a second time by the Staff Sergeant approximately 30 minutes later.
[18] Since the claimed misapprehension of evidence was not, in any event, material to the trial judge’s decision on this point I would not give effect to this ground of appeal.
[19] The trial judge accepted Officer Lasseter’s evidence “that the accused was given the opportunity to speak with a lawyer and declined” (Reasons for Judgment, p. 81). The appellant argues that the evidence indicates that he declined to speak to “duty counsel”, but there is no evidence that he declined to speak to a counsel generally. The appellant argues that this submission was made to the trial judge but was not dealt with by the trial judge in his reasons.
[20] My reading of the transcript does not support the appellant’s contention on this issue. While the officer’s notes simply state “Wong refused Duty Counsel” the officer’s testimony (at p. 61) was that Mr. Wong declined to speak to “a lawyer or Duty Counsel”. It is clear from the trial judge’s reasons that he accepted the officer’s testimony that the appellant declined to speak to counsel generally. He says this explicitly at p. 87: “I accept his testimony that Mr. Wong was advised again at the station of his right to speak with a lawyer including the right to access duty counsel if required and that Mr. Wong declined to speak to a lawyer when given the opportunity to do so.” That factual finding, which was available to the trial judge on the officer’s testimony, made it unnecessary for the trial judge to address an argument premised on the court making a different factual finding.
[21] The appellant contends that the trial judge erred in not finding that the police had a duty to give the accused a “Prosper warning” given the accused’s initial statement to Officer Molodyko that he would like to speak with a lawyer.
[22] The trial judge noted that in R. v. Prosper, [1994] 3 S.C.R. 236, the accused made numerous calls to lawyers over an extended time in an effort to obtain legal advice. He concluded that a Prosper warning is warranted in such circumstances so as to ensure that a detainee is informed that their unsuccessful attempts to reach counsel did not exhaust the s. 10(b) right.
[23] He stated (at p. 88):
In this case the implementation duty upon the police did not arise as the accused declined to speak with a lawyer when given the opportunity at the station. A Prosper warning would not have made any sense in this context as the accused did not want to speak with a lawyer and had not been frustrated in any attempt to reach counsel…[W]here the detainee declines to speak with a lawyer at the station no Prosper or other warning is required.
[24] The Crown asserts that the trial judge was correct in concluding that Prosper decides that the police must provide further information to a detainee who makes diligent but unsuccessful attempts to contact counsel. The purpose of the Prosper warning is to ensure that a detainee in such circumstances understands that diligent but unsuccessful attempts to contact counsel do not extinguish the right to an opportunity to consult counsel. The Crown argues that the key to triggering the Prosper warning is the requirement of “diligent but unsuccessful attempts” to contact counsel. In this case the trial judge accepted the police testimony that the accused declined to make any attempts to contact counsel, including duty counsel.
[25] The following paragraph from Prosper is apposite (at para. 43):
In circumstances where a detainee has asserted his or her right to counsel and has been reasonably diligent in exercising it, yet has been unable to reach a lawyer because duty counsel is unavailable at the time of detention, courts must ensure that the Charter-protected right to counsel is not too easily waived. Indeed, I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. This additional informational requirement on police ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up.
[26] The underlined sentence quoted above, read in isolation, appears to support the appellant’s position in this case. However, that sentence has to be read in the context of the rest of the paragraph and indeed, the rest of the decision. Read in context, I agree with the trial judge that Prosper applies in circumstances where the accused has made diligent but unsuccessful attempts to contact counsel. If they cannot contact their own counsel they must be advised of the availability of duty counsel.
[27] It was reasonable for the trial judge to infer from the note “refused Duty Counsel” that the accused in this case was told that duty counsel was available if he did not have his own lawyer. The decision in Prosper provides that a Prosper warning must be provided (at para. 50) “once a detainee asserts his or her right to counsel and is duly diligent in exercising it” and (at para. 49) “in jurisdictions where a duty counsel service does exist but is unavailable at the precise time of detention”. Neither of those conditions existed in this case.
[28] This interpretation is confirmed by the Supreme Court’s decision in R. v. Willier, 2010 SCC 37, where the Court refers to the “specific, narrowly defined circumstances in which s. 10(b) prescribes an additional informational obligation upon the police” (para. 31). The Court again emphasizes that the police duty to give a Prosper warning applies:
[W]hen a detainee, diligent but unsuccessful in contacting counsel, changes his or her mind and decides not to pursue contact with a lawyer, s. 10(b) mandates that the police explicitly inform the detainee of his or her right to a reasonable opportunity to contact counsel and of the police obligation to hold off in their questioning until then. (emphasis added)
[29] The Supreme Court reiterated the “diligent but unsuccessful” requirement at para. 38:
As noted above, 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. (emphasis added)
[30] In my view the trial judge did not err in law in declining to extend Prosper to circumstances such as the present in which the detainee changes his mind but has not made any effort to contact counsel before doing so.
Conclusion
[31] Accordingly, the appeal is dismissed. The stay of prohibition from driving is vacated and the driving prohibition is reinstated.
Justice R.E. Charney
Released: April 5, 2017
ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – SIU KWAN WONG Appellant REASONS on summary conviction appeal Justice R.E. Charney
Released: April 5, 2017