Court File and Parties
Court File No.: CR-16-5514-00AP Date: 2019-04-18 Ontario Superior Court of Justice
Between: Her Majesty The Queen And: Matthew Ruscica, Appellant
Counsel: Brian McCallion, for the Crown Alan D. Gold and Alex I. Palamarek, for the Appellant
Heard: October 5, 2018
Reasons for Judgment on Summary Conviction Appeal
MCKELVEY J.:
Introduction
[1] On July 17, 2016 in the early morning hours, the police, acting on information from another driver, stopped the appellant’s vehicle at a McDonald’s drive thru restaurant. Mr. Ruscica subsequently failed an approved screening device test. Subsequent testing revealed blood alcohol levels of 150 and 130 mg/100 ml of blood. On December 11, 2017, Mr. Ruscica was convicted of operating a motor vehicle with a blood alcohol concentration exceeding 80 mg, contrary to s. 253(1) (b) of the Criminal Code.
[2] At trial, the Crown called two witnesses; the arresting officer, PC John Oliva and a breath technician, PC Eon Lam. The defence called no witnesses.
[3] The trial proceeded as a blended voir dire with the defence bringing an application that the appellant’s rights under ss. 8, 9 and 10(b) of the Charter were breached, and therefore that the breath samples and all observations of the appellant ought to be excluded at trial pursuant to s. 24(2) of the Charter. The defence argued at trial that: (1) the appellant’s rights to counsel were breached when he was not provided with an opportunity to speak with a lawyer at the roadside; (2) the appellant’s rights to counsel were breached when he was steered towards duty counsel following his arrest and he was not provided an opportunity to search for counsel of choice; and (3) the appellant was unnecessarily held without justification at the police station for an additional 3 hours and 30 minutes after providing his last breath sample, thus breaching his right not to arbitrarily detained as guaranteed under s. 9 of the Charter.
[4] The trial judge found that the appellant’s Charter rights were not violated and, in the alternative, that exclusion of the breath samples and observations made of the appellant was not warranted.
[5] The appellant has appealed against his conviction based on the trial judge’s dismissal of his application for Charter relief. At the commencement of argument on the appeal, the appellant’s counsel confirmed that he was not taking any issue with respect to the alleged breach of s. 8 of the Charter. The appellant’s counsel also confirmed that he was not pursuing any issue with respect to the initial informal advice about counsel which was given by PC Oliva after the appellant was detained for possible impaired driving. This leaves the following two issues to be addressed on this appeal:
- The appellant argues that there was a violation of his s. 10(b) Charter rights after he was arrested, having registered a fail on the approved screening device.
- The appellant also argues that his s. 9 rights were breached when he was kept at the police station following blood alcohol testing.
[6] For the reasons which follow, I have found there is no basis to interfere with the trial judge’s decision to convict the appellant.
The Applicable Standard of Review
[7] The scope of appellate review on findings of fact made by a trial judge is very narrow. Findings of fact are not to be reversed unless it can be established that the trial judge made a “palpable and overriding error”. See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235. The standard of review on a question of law is correctness.
[8] In R. v. Grosse (1996), 1996 6643 (ON CA), 29 O.R. (3d) 785, the Ontario Court of Appeal noted that the jurisdiction of a summary conviction appeal judge to review the findings as to the sufficiency of evidence is limited. A summary conviction appeals court is not entitled to retry the case, but to determine whether the verdict is unreasonable. This requires the appeal court judge to determine whether the trial judge could reasonably reach the conclusion that the accused was guilty beyond a reasonable doubt. The test, therefore, is not whether the summary conviction appeal judge would have reached the same decision, but rather whether the trial judge’s decision was reasonable. Where evidence exists to support a factual inference, an appellate court would be hard pressed to find a palpable and overriding error. As noted by the Supreme Court of Canada in the Housen decision, it is open to an appellate court to find an inference of fact made by a trial judge is clearly wrong. However, deference is owed to a trial judge when it comes to assessing and weighing the evidence and making factual inferences. It is not the role of the appellate court to second guess the weight to be assigned to various items of evidence. If there is no palpable or overriding error with respect to the underlying facts that the trial judge relies on to draw the inferences, then it is only where the inference drawing process is palpably in error that an appellate court can interfere with a factual conclusion.
Factual Background
[9] With respect to the alleged s. 10(b) breach, the trial judge in her reasons summarized her finding on this issue as follows:
[12] After receiving the fail reading on the ASD, at 2:26 a.m. PC Oliva placed the applicant under arrest for operating a motor vehicle while over the legal limit and searched him incident to arrest. He agreed that searching the applicant “took about a minute”. He placed the applicant in the rear of his police cruiser and at 2:30 a.m. he told him that he was being arrested for operating a motor vehicle with a blood alcohol content over 80 mg/100 ml of blood. He read the applicant the rights to counsel from the back of his notebook as follows:
I am arresting you for impaired driving over 80. It is my duty to inform you that 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 a number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now. Do you understand? Do you wish to call a lawyer now?
[13] When he asked the applicant if he understood, Mr. Ruscica confirmed that he did and when he asked the applicant if he wanted to call a lawyer now, he asked if he could just go home. He then indicated that he did want to call a lawyer. PC Oliva asked the applicant if he had a specific lawyer or wanted to call duty counsel. The applicant indicated he did not have a specific lawyer and that he wanted to call duty counsel.
[10] Having reviewed the transcripts from trial, I am satisfied that there is no basis to interfere with the above noted findings made by the trial judge with respect to the s. 10(b) advice Mr. Ruscica was given. The evidence with respect to Mr. Ruscica agreeing to speak to duty counsel is reflected in the following evidence given on cross-examination at pp. 98-99 of the trial transcript:
MR. GOLD: Question: And later on still at the scene before you left:
OFFICER OLIVA: Do you have a specific lawyer, or do you want us to call duty counsel for you for free legal advice?
MR. RUSCICA: No, I don’t have a specific lawyer.
OFFICER OLIVA: Do you want duty counsel?
MR. RUSCICA: Yeah. Come on, man. I just want to go home. I haven’t done anything here.
And then there’s an unrelated radio call. Do you remember that little episode towards the end of the events at the scene?
Answer: I don’t recall the exact conversation, but that sounds familiar.
[11] With respect to the events at the police station, the trial judge summarized her findings as follows:
[15] At 2:34 a.m. PC Oliva left the scene and drove the applicant to the police station in Richmond Hill. He arrived at 2:40 a.m. At 2:43 a.m. the applicant was paraded and booked by acting Staff Sergeant Reid. PC Oliva testified that during the booking process the applicant requested to speak to duty counsel. In cross-examination, PC Oliva agreed that he could not recall the details of the conversation with the applicant about contacting a lawyer, and could not recall whether the Staff Sergeant explored contacting a private lawyer with the applicant. However, he agreed that generally if an individual does not have a specific lawyer the individual will be put in contact with duty counsel.
[16] After the booking process was completed at 2:56 a.m. the applicant was placed in the cells, and at 2:57 a.m. PC Oliva called duty counsel and left a message.
[17] At 3:06 a.m. duty counsel returned the phone call. At 3:08 a.m. the applicant spoke with duty counsel. The call with duty counsel ended at 3:10 a.m. and PC Oliva turned the applicant over to the qualified breath technician, PC Lam.
[18] PC Lam arrived at 2 District at 2:39 a.m. and prepared the approved instrument. At 3:03 a.m. PC Oliva relayed the grounds for the arrest and breath demand to him. At 3:11 a.m., after the applicant was turned over to him, PC Lam read the applicant the s. 254(3) demand.
[19] PC Lam noted that a strong smell of alcohol was coming from the applicant’s breath. He noted that his face was red. He saw that his eyes were red rimmed and blood shot. At 3:22 a.m. the applicant provided the first sample of his breath into the approved instrument and a reading of 150 mg/100 ml of blood was obtained. At 3:45 a.m. a second reading of 130 mg/100 ml of blood was obtained.
[20] Following the completion of the breath tests, at 3:49 a.m. PC Oliva returned the applicant to the cells. His last contact with the applicant was at 5:05 a.m. when he served the applicant with the certificate of analysis and other documents.
[21] PC Oliva was not responsible for the release of the applicant. He expected that the applicant would be released by the Staff Sergeant once it was safe to do so. In cross-examination he agreed that the applicant was generally “not too bad”. He believed that the applicant was cautious in his movements but was not sloppy. There was a shift change at 5:00 a.m., and PC Oliva believed that the Staff Sergeant that came on duty would be the officer responsible for the applicant’s release. PC Oliva could not recall if he spoke with the Staff Sergeant that came on duty at 5:00 a.m. about the applicant’s condition.
[22] The officer who released the applicant did not testify. However, the Promise to Appear indicates that the applicant was released at 8:16 a.m.
[12] The appellant places significant emphasis on the evidence of PC Oliva where he gave the following evidence starting at p. 99 of the transcript for October 30, 2017:
Question: Have you ever seen a desk sergeant -- and by ever -- let’s just talk around the time of these events…
Answer: Yes.
Question: …okay? Have you ever seen a sergeant say to an accused, “Well, you don’t know any lawyers, but you have the right to – to speak to a private lawyer? We’ll put you in a room with a phonebook or a computer. You can look for – through the private bar, maybe Law Society.” Did you ever see a sergeant give an accused, in this situation, the option of their personally searching the private bar for a lawyer when they didn’t have a private lawyer?
Answer: No, my experience is that the officer in charge normally asks if they have a lawyer. And if the response is “no” then they offer them duty counsel.
Question: They’re effectively steered to duty counsel?
Answer: If they don’t have a specific lawyer…
Question: Yeah.
Answer: …that they can name.
Question: Unless they can name a lawyer from the get-go, they’re steered to duty counsel?
Answer: Correct.
Issues Raised by the Appellant
[13] The first issue raised by the appellant is whether there was a breach of his s. 10(b) rights. The appellant asserts that the police officer failed to satisfy the informational component of s. 10(b) of the Charter by not informing him of his right to counsel of choice, thereby eliminating the appellant’s ability to make an informed and valid choice of counsel. It is suggested in particular that when the police officer asked the two follow up questions, it effectively narrowed the appellant’s options to either: (1) a counsel that the appellant already had; or (2) duty counsel. The appellant notes that he confirmed he did wish to speak with a lawyer. However, when he advised that he did not have a criminal lawyer, the police officer then only asked if he wanted to speak with duty counsel, despite previously telling the appellant that he could speak with any lawyer he wished. The appellant argued that with only one option in front of him he said “yes”.
[14] As set out in the appellant’s reply factum to the further written submissions of the respondent, the appellant argues as follows,
The Appellant respectfully submits, that he was not properly informed of his right to counsel of choice, and therefore in agreeing to speak with duty counsel after advising that he did not have a lawyer, as the officer testified to at trial, the appellant was steered towards duty counsel. The appellant was not afforded the opportunity to speak with any lawyer he wished, and he was not allowed to speak with counsel of his choosing; he was only allowed to speak with the counsel chosen for him by police. His right to counsel of choice guaranteed under s. 10(b) of the Charter was therefore breached.
[15] With respect to the alleged s. 9 breach of the Charter, the appellant argues that the evidence establishes that he was held for an additional 3 hours and 11 minutes after receiving the certificate of analysis and related documents before being released. The appellant argues that there was no evidence before the court of any reason as to why the appellant was detained for this additional period of time. The appellant therefore argues that the trial judge erred in holding that a prima facie case of arbitrary detention had not been made out which shifted the evidential burden to the Crown to provide an explanation for the delay.
Did the trial judge err in dismissing the appellant’s application for Charter relief pursuant to s. 10(b)?
[16] In addressing this issue the trial judge commented as follows,
[52] Where an individual is in police custody and has identified a lawyer that he or she wishes to contact, because the police control an accused’s ability to take steps to contact the lawyer of his choice, the police are obligated to pursue that constitutional right with all the same effort and diligence that the accused himself would apply were he or she not in custody.
[53] However, this is not a case where the applicant identified or requested to speak to a specific lawyer. He did not have a “counsel of choice”. Nonetheless, the applicant submits that even though the applicant did not know or request a specific lawyer, and agreed to speak with duty counsel, that the police breached his right to counsel because they directed or “steered” him to duty counsel.
[54] I disagree. The police did not breach the applicant’s right to counsel of choice. The police did not violate his rights by directing him to duty counsel when he did not or could not identify a specific lawyer.
[55] In circumstances where a detainee has not identified a specific lawyer, or requested the opportunity to locate a private lawyer and has agreed to speak with duty counsel, the right to counsel of choice does not require the police to suggest or provide the means by which the applicant might locate a private lawyer. The requirement for the police to take reasonable steps to enable a detainee to reach the lawyer of their choice is triggered by the indication by the detainee that they want to speak with a specific lawyer, or at the very least pursue identifying private counsel.
[17] On this issue, the appellant argues that the current s. 10(b) advice used in Ontario does not adequately fulfill the information requirement. It is suggested that, “Ontario falls behind the other provinces in protecting the Charter right to retain and instruct counsel of choice”. The appellant has referred to a number of Ontario Court of Justice cases which raise this as an issue. For example in R. v. Ali, 2018 ONCJ 203, [2018] O.J. No. 1662, Justice Burstein refers at para. 49 to the standard s. 10(b) Charter warning read by police in Alberta which states,
You have the right to retain and instruct your lawyer without delay. This means that before we proceed with our investigation you may call any lawyer you wish or a lawyer from a free legal advice service immediately. If you want to call a lawyer from a free legal advice service, we will provide you with a telephone and you can call a toll free number for immediate legal advice. If you wish to contact any other lawyer, a telephone and telephone books will be provided to you. If you are charged with an offence you may apply to Legal Aid for assistance. [Emphasis added.]
[18] Justice Burstein states in his decision that many Ontario detainees are denied access to the basic tools required to facilitate contact with their counsel of choice. He states, at para. 51,
Rather than allowing the detainee to “telephone any lawyer [they] wish”, it seems that police agencies in Ontario merely afford the detainee the right to receive a telephone call from someone who the police have called on the detainee’s behalf. The practice currently in place in Ontario seems constitutionally suspect. [Emphasis in original.]
[19] Justice Burstein comments subsequently that in considering whether police have discharged their duty to facilitate contact with a detainee’s counsel of choice, the result should be determined by what a reasonable detainee would likely have done to contact counsel had the police provided with the tools for doing so.
[20] In R. v. Ferose, [2018] O.J. No. 2431, (affirmed at 2019 ONSC 1052, [2019] O.J. No. 845 with respect to the s. 24(2) analysis only), Justice Konyer goes further. At para. 31 he states,
The problem with the conduct of the police in Mr. Ferose’s case is that when he expressed a desire to contact counsel but did not have lawyer in mind, he was only informed of one available tool: free duty counsel. He was not informed that he had a right to make reasonable efforts (or that the police would make reasonable efforts on his behalf) to use other readily available tools, like phone books, lawyer’s lists, the Law Society database, or internet searches. These are all tools that an informed person in today’s era could reasonably be expected to utilize if presented with an urgent need for legal advice. If the police insist on maintaining control over a detainee’s ability to access counsel, then in my view they have an obligation to ensure that the detainee is fully informed about his or her options. A detainee ought not to be convinced by the very officer who has arrested him to accept the most convenient option for the police – the toll-free duty counsel number.
[21] In R. v. Middleton, 2018 ONCJ 387, Justice Parry suggests that police officers who fail to allow an accused person to access secondary sources, such as phone books to contact a lawyer, present an incomplete set of choices to an accused which he describes as, “a false dichotomy”. The trial judge comments at para. 64,
As Mr. Middleton bounced from officer to officer, they collectively presented Mr. Middleton with a false dichotomy of choices: (1) if you have a lawyer, you can call that one; and (2) if you do not have a lawyer, you can call duty counsel.
[22] Justice Parry goes on to state that with police acting as the exclusive conduit to legal advice, without providing the necessary information and tools to the accused to empower him to assert his rights, Mr. Middleton was inexorably steered towards duty counsel. He describes this practice as “constitutionally suspect”.
[23] In assessing the adequacy of the s. 10(b) advice given to the appellant in this case, it is important to review the basic principles as set out in the leading Supreme Court of Canada case in R. v. Bartle, 1994 64 (SCC), [1994] SCJ No. 74. In that decision it is significant to note that the Supreme Court dealt with the adequacy of the Ontario caution which was used at the time. The court found that the Ontario caution was defective in that it did not advise of the existence and availability of any “duty counsel” service nor did it provide a toll free number by which the service could be accessed. That issue has, of course, been addressed by the standard Ontario caution. I therefore conclude that despite the differences between Ontario and Alberta, the standard wording used in Ontario does meet the requirements of s. 10(b) of the Charter and is consistent with the requirements set out in Bartle.
[24] In Bartle, the Supreme Court sets out the duties which state authorities must comply with when they arrest or detain a person. These requirements are as follows:
- 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;
- 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
- 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).
[25] The first duty listed is an informational one and which, as noted above, I have concluded was adequate in light of the Supreme Court’s decision in Bartle. This conclusions is further supported by the comments of Justice Doherty in the Ontario Court of Appeal decision R. v. Devries, 2009 ONCA 477, where at para. 22 he states,
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 [page 728] R. v. Brydges, 1990 123 (SCC), [1990] 1 S.C.R. 190, [1990] S.C.J. No. 8, at p. 206 S.C.R., 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.
[26] The second and third duties under s. 10(b) are implementational duties that are triggered when a detainee indicates a desire to exercise his or her right to counsel.
[27] The issue which arises in the present case is under what circumstances are police obliged to advise a detainee about sources of information which a detainee might access in order to make a decision to contact counsel.
[28] In R. v. Zoghaib, [2005] O.J. No. 5947, Justice Fragomeni dealt with a summary conviction appeal where the adequacy of the s. 10(b) advice was in issue. Initially the detainee in that case declined the offer to speak to a lawyer. However, subsequently she was asked again if she wished to call a lawyer to which she responded “okay”, but did not provide the name of a lawyer to contact. She was subsequently put in touch with duty counsel. The defence position was that the police officer was obliged to ask the detainee if she wanted a phone book to look up the name of a lawyer prior to calling duty counsel. It was suggested that by proceeding to call duty counsel, the effect upon the detainee was to unintentionally induce her to accept duty counsel as her manner of exercising her right to counsel. Justice Fragomeni concluded that the trial judge erred in law in finding that the detainee’s s. 10(b) right had been breached.
[29] That decision was further considered by the Court of Appeal on appeal at 2006 8025 (ONCA). In a short endorsement, the Court of Appeal stated that they were in agreement with the analysis of the summary conviction appeal court. The court noted that the appellant was fully advised of her right to counsel at the roadside and understood those rights. Based on the findings of fact made by the trial judge, the court notes that 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 by the officer.
[30] R. v. Caissie, 2012 NBQB 344, is a New Brunswick summary conviction appeal decision by Justice Rideout. In that decision, the court held there was no positive duty on the police to provide an accused with the telephone book in circumstances where he confirmed that he did not know any specific lawyers to call and accepted duty counsel without voicing any reservation. At para. 15 Justice Rideout comments,
It may well be other circumstances which require the presentation of a phone book or a list of lawyers. When a person clearly indicates he wants a lawyer or he has a particular person in mind or has an idea as to who that lawyer might be then a phone book or list may be warranted. It will depend on the individual circumstances. However, when the person indicates that he does not know a lawyer, wants to call his father who also does not know a lawyer, is offered duty counsel if he wishes to talk to a lawyer and he gives an affirmative response, this, in my view, satisfies his section 10(b) Charter Rights.
[31] In R. v. Antoninas, 2014 ONSC 4220, Justice Durno dealt with a summary conviction appeal. After giving the s. 10(b) advice in the usual form, the police officer asked the accused, “do you wish to call duty counsel when we get back to the detachment?”, the respondent replied, “probably”. The officer testified that after the appellant spoke to duty counsel for seven minutes he said nothing to indicate that he was in any way dissatisfied with the advice he received. It was acknowledged that the police officer ought to have asked “do you wish to speak to counsel?” not just duty counsel.
[32] In his decision, Justice Durno agreed that the manner in which the question was asked had the potential to be misleading. He noted there was the potential that the appellant may have felt the only means by which he could access counsel at the station was through duty counsel. However, while the potential existed for the appellant to be misled, Justice Durno concluded that applying the trial judge’s findings of fact in relation to the rights to counsel and the appellant’s evidence, he was not persuaded that the potential became a reality in that case. At para. 86 Justice Durno refers to the fact that contrary to the appellant’s testimony, but as his trial counsel conceded, the appellant was told that he had the right to contact any lawyer he wanted and he said that he understood all of his rights before being asked the last question by the arresting officer.
[33] As noted in the Bartle decision, it is also significant to note that the right to counsel under s. 10(b) is not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it, the duty on the police to provide a reasonable opportunity to obtain legal advice will either not arise in the first place or will be suspended. This underlines the critical importance of the informational component of the right to counsel. As noted by the Supreme Court at para. 19 in the Bartle decision,
Unless they are clearly and fully informed of their rights at the outset, detainees cannot be expected to make informed choices and decisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as their right to silence.
[34] I have concluded that there is no basis to interfere with the trial judge’s conclusion that the appellant failed to establish on a balance of probabilities that there was a violation of his right to counsel of choice under s. 10(b) of the Charter.
[35] It is apparent from the reasons of the trial judge that she found that the appellant was given s. 10(b) rights advice which clearly stated his right to telephone, “any lawyer you wish”. At the relevant time, the appellant confirmed he understood the advice he was given and it is significant in my view that there was no evidence at trial to cast any doubt about this.
[36] From the perspective of the police and the court hearing this application, therefore, there was no reason to believe that the appellant was under any misunderstanding about his s. 10(b) rights. They were clearly set out in the s. 10(b) rights he was given, consistent with the Charter itself and the appellate decisions such as Bartle. To the extent that the appellant had any misunderstanding as to whether he could call a lawyer other than duty counsel, it is my view that this misunderstanding flowed only from his failure to convey his own thought processes to the officer. In the present case the trial judge made a specific finding at para. 53 that the appellant did not have a “counsel of choice”.
[37] The officer did not “steer” the appellant to duty counsel by simply choosing duty counsel without any consultation with the appellant. As noted above, detained persons have a duty to exercise due diligence in pursuit of their choice with respect to counsel. Had the appellant responded “no” to the follow up question of whether he wanted to speak to duty counsel, the officer would have been placed in the position of having to clarify the appellant’s intentions about counsel and to provide further assistance to the appellant to locate counsel he was satisfied with. Further, the trial judge found that the appellant gave no indication that he was not satisfied with his opportunity to contact counsel (para. 65). On the contrary, according to the evidence of PC Oliva, after the call to duty counsel ended, the appellant said he was satisfied with duty counsel.
[38] I agree with the reasoning of the New Brunswick summary conviction appeal court decision in R. v. Caissie. Circumstances matter. There may well be cases based on what an accused says to the police which make it mandatory for the police to offer resources such as a phone book to assist someone who is looking for private counsel. This is reflected in at least one of the Ontario Court of Justice decisions which were relied upon by the appellant in argument. For example, in the R. v. Ali case, Justice Burstein was dealing with a situation where the detained person asked for a specific lawyer, but the police officer did not copy down the correct telephone number for this lawyer. Justice Burstein goes on to find that the efforts of the police officer to facilitate contact with the accused’s chosen counsel were, “grossly inadequate”. I agree with Justice Burstein when he states,
I fully agree with the proposition that when the police choose to maintain control over the tools necessary for a detainee to exercise their s. 10(b) rights, the police thereby assume constitutional responsibility for using those tools in the same manner as any reasonable detainee facing an urgent need to contact counsel.
However, where a detainee simply tells the police that he has no specific lawyer that he wants to contact and further responds affirmatively when asked if he wants to call duty counsel, there is no basis to interfere with a trial judge’s conclusion that the requirements of s. 10(b) of the Charter have been met. This view is supported by the New Brunswick summary conviction appeal decision in R. v. Caissie, as well as the Ontario Court of Appeal decision in R. v. Zoghaib. This conclusion is further supported by the comments of Justice Doherty, although obiter, in the Devries decision at para. 7 where he states,
The Appeal Judge’s reference to “a list of callers” was a reference to a list of lawyers' phone numbers that may have been available at the police detachment to which the respondent was taken. The evidence as to the availability of this list and its currency was somewhat unclear. It is unnecessary to go into that evidence as counsel for the respondent, correctly in my view, does not contend that on this record he can argue that the police officer was obliged under s. 10(b) to advise the respondent that a list of lawyers’ telephone numbers could be made available to her at the police station.
[39] The comments noted above were considered by Justice Burstein subsequently in his decision R. v. Manuel, [2018] O.J. No. 2955. In that decision Justice Burstein distinguishes the comments made by Justice Doherty on the basis that in the Devries case, the defendant told police that she did not want to call a lawyer, where as in the Manuel case, the accused did ask to call a lawyer. In his decision, Justice Burstein suggests that additional information must be provided to a detainee who has asked to call a lawyer. At para. 27 of his decision he states,
In Mr. Manuel’s situation, he should have been provided with “additional information” that the s. 10(b) rights he had asserted included not just the right to call a lawyer but also the related right to a reasonable opportunity to choose the lawyer with whom to consult. Given the animating purpose of the informational component of s. 10(b) as set out in Bartle, having asserted his s. 10(b) rights, Mr. Manuel was entitled to additional information making clear to him that the reasonable opportunity to choose counsel would include an opportunity to access “available services” for doing so, namely, a telephone and a telephone book. Mr. Manuel was entitled to that important additional information before Cst. Liard put him in a position of having to make the choice between "a lawyer in mind" and duty counsel. Without that additional information, Mr. Manuel’s putative “choice” of calling duty counsel was not constitutionally meaningful.
[40] Justice Burstein also distinguishes the Zoghaib decision on the basis that in that case there is reference to the fact that the accused was seated in an interview room which contained a phone and a telephone book.
[41] Justice Burstein makes a persuasive argument that detained persons should be advised about the availability of resources to locate and identify legal counsel other than duty counsel if desired. With great respect to Justice Burstein, however, I am not able to agree with this conclusion.
[42] In his decision in R. v. Ali, Justice Burstein makes reference to the Alberta caution noted above. In the Manuel decision he qualifies the additional information as being applicable only to someone who is detained and who has asked to call a lawyer. He appears to suggest at para. 25 of the Manuel decision, however, that the obligation to advise someone with additional information is inherent in the s. 10(b) rights advice. However, in the Devries decision, the Ontario Court of Appeal specifically sets out the informational component of s. 10(b) which is referred to at para. 25 in this decision. The Ontario Court of Appeal limits the informational component of s. 10(b) to the obligation to inform the detainee of his right to retain and instruct counsel without delay as well as the existence and availability of duty counsel and legal aid. There is no reference to any obligation to inform a detainee about access to telephone books or other resources as are apparently contained in the Alberta standard caution. I conclude in these circumstances that if there is to be a further informational obligation imposed on the police, it would need to come from appellate jurisprudence. I consider myself to be bound by the Supreme Court’s decision in Bartle as well as the Ontario Court of Appeal decision in Devries.
[43] I have considered whether there could be an implementational duty to assist a detainee to identify and locate private counsel once they have advised police that they wish to speak to a lawyer. However, in my view, such an obligation must be based on a request from the detainee which reasonably requires the police to assist in this regard. If there is to be an obligation to advise detainees about resources that will be made available to locate and identify private counsel, I have difficulty understanding why such an obligation would be limited to only those detainees who express an interest in speaking to counsel. Arguably, if one follows the Alberta example, this information might be relevant to a person’s decision as to whether or not they wish to exercise their s. 10(b) rights.
[44] In my view, what is being proposed by the appellant represents a significant expansion of the Charter rights under s. 10(b). The proposed expansion is inconsistent with binding appellate authority. It also raises real practical questions as to what information needs to be given to a detainee. If the information is required by a response received to the s. 10(b) advice from a detainee, the circumstances will dictate what information needs to be provided. This is consistent with established case law and courts are able to assess the adequacy of the police response. However, in a vacuum, where there is no issue raised by a detainee, there would appear to be practical difficulties in determining what information will be required. The information in the Alberta caution apparently references the availability of telephone books which appears somewhat outdated in a digital age. The reference in the Devries decision is to a “list of callers”. However, as noted by Justice Doherty, the availability of this list as well as its currency was somewhat unclear. Also unclear is how such a list would be prepared, as well as who would be responsible for preparing and updating it in a constitutionally acceptable manner. If access to the internet is being contemplated, consideration would need to be given to the potential risks and on what basis access could be denied.
[45] With respect to Justice Burstein’s reference to the Zoghaib case, he correctly notes that at para. 13 of the decision of Justice Fragomeni, there is reference to the presence of a telephone book in the interview room. However, this does not detract from the issue which was addressed. This is set out at para. 41 of the decision as follows:
The defence submits that P.C. Henry was obligated to ask Ms. Zoghaib if she wanted a phone book to look up a name of a lawyer prior to immediately going to call duty counsel. By going directly to duty counsel without giving her an opportunity to look up the name of a lawyer did not mean she was waiving her right to counsel of choice. The defence argues that this sequence of events and in light of Ms. Zoghaib’s evidence that she felt that she should simply “follow the lead of P.C. Henry,” resulted in an uninformed waiver of her right to counsel of choice.
[46] In my view, Justice Fragomeni’s decision in the Zoghaib case together with the subsequent Court of Appeal Endorsement dismissing the appeal does support a conclusion that advice regarding resources available to identify and connect with private counsel is not routinely required. On the contrary, this duty only arises where individual circumstances require it in order to comply with the implementational responsibilities under s. 10(b).
[47] In summary, I conclude that the existing s. 10(b) rights advice meets the required Charter standard. Detainees will clearly understand their right to consult with any lawyer they wish. The trial judge correctly held that on the facts of this case there was no requirement for the police to suggest available resources to identify a private lawyer.
Did the trial judge err in dismissing the appellant’s application for Charter relief pursuant to s. 9?
[48] The obligation to release a person from custody is set out in ss. 497 and 498 of the Criminal Code. Section 498 requires the officer in charge to release a person in custody as soon as practicable except in accordance with s. 498(1.1) which provides as follows:
(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds,
(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence,
(iii) prevent the continuation or repetition of the offence or the commission of another offence, or
(iv) ensure the safety and security of any victim of or witness to the offence; or
(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.
[49] In the present case, the appellant argues that the delay of 3 hours and 16 minutes after the police investigation concluded constitutes a violation of the appellant’s s. 9 Charter rights. The appellant summarized its argument on this point in his factum as follows,
- The Appellant respectfully submits that there was ample evidence before the Court that the Appellant was held for 3 hours and 16 minutes after the police investigation concluded. There was no evidence before the Court that the Appellant was impaired sufficient to preclude his release, and further, there was no evidence that any officer made any determination at any point as to whether the Appellant should continue to be held or released. Accordingly, because the trial judge’s reading of Kavanagh was erroneous, it was an error in law to find that the Appellant’s continued detention was justified. The trial judge therefore erred in holding that the Appellant was not arbitrarily detained or imprisoned contrary to section 9 of the Charter.
[50] In her decision, the trial judge noted that the appellant bore the legal burden of establishing an alleged s. 9 breach on a balance of probabilities. Although the legal burden was upon the appellant, the trial judge went on to note that where an accused presents a prima facie case of arbitrary detention, and the Crown seeks to justify the detention on the basis of ss. 497(1.1) or 498(1.1) an evidential burden may arise requiring the Crown to explain the reasons for the detention. The evidential burden arises because it is the police officers who have the exclusive knowledge of the reasons for the detention.
[51] In her decision, the trial judge concluded that she was not satisfied that a prima facie case of arbitrary detention had been made out by the appellant, such that the evidentiary burden shifted to the Crown to justify detention under s. 498(1.1). In this regard, the trial judge concluded at para. 91 as follows:
In the circumstances, I am not satisfied that the applicant has established that the delay of three hours and ten minutes from the time of service of the necessary paper work (or four and a half hours from the completion of the breath tests) establishes a prima facie case of arbitrary detention that requires explanation. The accused’s blood alcohol content was approaching twice the legal limit. It is a reasonable inference that some period of detention was required prior to his release for his own safety and that of the public.
[52] In my view, there is no basis to interfere with the judge’s conclusion that the evidence in this case was not sufficient to establish a prima facie case of arbitrary detention that would require an explanation.
[53] In the Court of Appeal decision in R. v. Iseler, 2004 34583 (ON CA), [2004] O.J. No. 4332, the Court of Appeal dealt with a situation where there was an unexplained delay in releasing the accused for a period of 11 hours. In their decision, however, the court refers to the judgment of Justice Cunningham in R. v. Burns, [2000] O.J. No. 1743. In the Burns case, the accused was held for five hours after undergoing a breathalyzer test. In that case the breathalyzer operator could not explain why the appellant was not released as soon as he was charged. The trial judge in that case concluded on the evidence before him that the accused was not arbitrarily detained. On the summary conviction appeal, Justice Cunningham agreed and commented that a five hour unexplained detention could not be considered arbitrary in the sense of it being capricious, despotic, tyrannical or autocratic. In the Iseler decision, the Court of Appeal distinguished the Burns case on the basis that a detention of 11 hours was in fact sufficient to establish a prima facie case of arbitrary detention. The inference I take from their reference to the Burns decision is that a delay of less than 5 hours, in the absence of an explanation for the continued detention, does not constitute sufficient evidence of an arbitrary detention. This is reflected at para. 22 of the Court of Appeal’s decision in the Burns case where the court states,
Burns is distinguishable both on the facts and on the burden of proof. In my view, there is a considerable difference between a detention of five hours and a detention of eleven hours in which the appellant was ignored for the entire period of time, except for a five-second interlude at the tenth hour.
[54] In my view, the case law supports the trial judge’s conclusion that a delay of just over three hours in releasing the appellant following the completion of the investigation did not constitute a prima facie case of arbitrary detention which required the Crown to justify the detention.
[55] Further, there is a reasonable basis to question whether simply pointing to the time on the promise to appear is sufficient to establish a breach of the appellant’s Charter rights. See R. v. Garrido-Hernandez, 2017 ONSC 2552, at para. 40.
Conclusion
[56] For the above reasons, this summary conviction appeal is dismissed.
Justice M. McKelvey
Released: April 18, 2019
