COURT FILE NO.: CR-19-00001565 DATE: 2020 01 23 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN Respondent P. Quilty, for the Respondent

- and -

SUHARSHANI WIJESURIYA Appellant C. Rudnicki, for the Appellant

HEARD: January 10, 2020

REASONS FOR JUDGMENT [On appeal from the Judgment of Jaffe J. dated April 29, 2019]

RICCHETTI J.

OVERVIEW

1This is an appeal by Ms. Wijesuriya from the conviction by Justice Jaffe on April 29, 2019 for refusing to provide a breath sample.

2At the conclusion of the appeal, this court advised counsel that the appeal was dismissed with reasons to follow. These are those reasons.

THE APPEAL

3The Defence raises the following two alleged errors of law:

a) The trial judge erred in dismissing the Appellant’s s. 10(b) Charter application; and

b) The trial judge erred in failing to deal with, in her Reasons for Judgment, evidence regarding the proper operation of the breathalyzer machine.

4The Defence does not challenge on appeal any of the trial judge’s findings of fact.

5The trial took place on October 15 and 16, 2018, and February 14, 2019 and April 17, 2019.

6The trial judge released her Reasons for Judgment on April 29, 2019, acquitting Ms. Wijesuriya of the charge of care and control of a vehicle while impaired and finding Ms. Wijesuriya guilty of refusing to provide a breath sample.

THE FACTS

7The police received a call from a member of the public in the early morning of July 24, 2017. The caller advised that a vehicle was stopped in the curb lane of traffic on Countryside Drive. The vehicle's engine was running. Its lights were on.

8At approximately 1:39 a.m., the police officers arrived at Countryside Drive. The police found a black Honda vehicle at the curb lane. The vehicle was running. The vehicle's lights were on.

9The vehicle’s driver’s door was slightly open. Ms. Wijesuriya was in the driver’s seat, slouched over. She was asleep.

10The police officers woke Ms. Wijesuriya but she was disoriented and had the smell of alcohol on her breath. Ms. Wijesuriya's speech was slurred or stuttering. She could not answer questions clearly. She was not sure how long she had been there. When she got out of the car, she used the car to hold onto for balance.

11At 1:42 a.m., Officer Delgado arrested Ms. Wijesuriya for having care and control of a vehicle while being impaired.

12At 1:48 a.m., Officer Delgado made a demand for a sample of Ms. Wijesuriya’s breath.

13Officer Delgado provided Ms. Wijesuriya with her Charter rights including her rights to counsel. Ms. Wijesuriya told Officer Delgado she wanted to speak with her counsel, Mr. Angelini. Ms. Wijesuriya gave Officer Delgado the telephone number for Mr. Angelini.

14At 2:02 a.m., the police officers and Ms. Wijesuriya arrived at the police station.

15At 2:10 a.m., Officer Delgado placed a call to Mr. Angelini. It was Mr. Angelini's office or cell phone number. No one answered. However, the message on that phone line described, and gave, an “emergency number” for Mr. Angelini.

16Officer Delgado called the emergency number. However, when attempting to leave a message on the emergency line, the emergency line would disconnect Officer Delgado's call. Officer Delgado tried “multiple” times with the same result. He kept trying.

17Ms. Wijesuriya, realizing that Officer Delgado had not left a message, asked Officer Delgado to try the first telephone number again. At 2:16 a.m., Officer Delgado again called Mr. Angelini's first telephone number.

18At 2:17 a.m., Officer Delgado again called Mr. Angelini’s emergency number but was disconnected before he could leave a message on the emergency line.

19At 2:20 a.m., given the difficulties Officer Delgado had trying to connect with Mr. Angelini, Officer Delgado asked if Ms. Wijesuriya wished to speak with duty counsel. Ms. Wijesuriya replied she did not want to speak with duty counsel – she wanted to speak with Mr. Angelini.

20Given this response, Officer Delgado again called Mr. Angelini’s emergency number but was met with the same disconnection problem.

21At 2:22 a.m., given the difficulties with the emergency line, Officer Delgado called Mr. Angelini’s first telephone number and left a message on that line.

22Between 2:25 a.m. and 2:27 a.m., Officer Delgado repeatedly called Mr. Angelini’s emergency line but with the same disconnection problem.

23Undeterred, Officer Delgado continued trying to leave a message on Mr. Angelini’s emergency line. At 2:29 a.m., Officer Delgado was finally able to leave a message on Mr. Angelini’s emergency line.

24Ms. Wijesuriya was aware of the many efforts made by Officer Delgado (as she was sitting 3-4 feet away) to contact Mr. Angelini and Officer Delgado told her of his difficulties. Ms. Wijesuriya acknowledged, at trial, of the numerous efforts Officer Delgado made to contact Mr. Angelini.

25No response was received from Mr. Angelini.

26At approximately, 2:45 a.m., being almost one hour after the initial demand was made, Officer Delgado decided he would “give her the opportunity to speak with somebody, because she wanted counsel, but for whatever reason we weren’t able to get in contact with her lawyer”. Officer Delgado testified that he said something to the effect of “would you like to speak with duty counsel so you can get some type of advice.” He did not recall any response by Ms. Wijesuriya. Officer Delgado contacted duty counsel. Ms. Wijesuriya agreed that duty counsel was offered, and she accepted speaking with duty counsel:

Q. Right. And then they offered duty counsel and you accepted?

A. Yes, ‘cause I felt like I – there was – I didn’t have a chance to – I’m not gonna have a chance to speak to anybody else, so I was – basically that’s the only person I can speak to.

Q. Well, nobody forced duty counsel on you. My question was they offered and you accepted and you said yes, right?

A. Correct.

27Ms. Wijesuriya spoke with him/her until 2:56 a.m. Ms. Wijesuriya knew, at the time, that she was speaking to duty counsel rather than Mr. Angelini.

28Officer Delgado explained he did not look for other telephone numbers for Mr. Angelini, since he had the right telephone number and the right emergency number for Mr. Angelini.

29At approximately, 2:56 a.m., Ms. Wijesuriya was turned over to a qualified breath technician, Officer Bowes. The video of what occurred in the breathalyser room was a trial exhibit.

30Ms. Wijesuriya told Officer Bowes that she had not been given her Charter rights to counsel (which was false). Out of an abundance of caution, Officer Bowes again provided Ms. Wijesuriya her Charter rights including her rights to counsel. Officer Bowes explained to Ms. Wijesuriya that Officer Delgado had attempted to contact Mr. Angelini without success and confirmed Ms. Wijesuriya had spoken to duty counsel. Ms. Wijesuriya said that she understood. Ms. Wijesuriya did not express any dissatisfaction with the legal advice she received from duty counsel. Ms. Wijesuriya did not express a desire to speak with Mr. Angelini.

31Officer Bowes told Ms. Wijesuriya that, if Mr. Angelini called at any time, he would put her in touch with Mr. Angelini. Again, Ms. Wijesuriya expressed no dissatisfaction with this process.

32Officer Bowes asked Ms. Wijesuriya to provide a breath sample into the breathalyzer at 3.09 a.m., one hour and twenty-one minutes after the initial demand for a breath sample and almost one and a half hours after the arrest.

33Over a considerable period of time, Officer Bowes attempted numerous times to obtain a breath sample from Ms. Wijesuriya but was unable to obtain a breath sample.

34At no time that morning did Mr. Angelini call the police station.

SECTION 10(B) CHARTER APPLICATION

Trial Judge’s Reasons

35I am satisfied that the trial judge correctly identified the law: the police are obliged to provide a detainee with a “reasonable opportunity” to speak with counsel of choice.

36The trial judge concluded that, in all the circumstances, Officer Delgado have provided Ms. Wijesuriya with a reasonable opportunity to contact Mr. Angelini, stating as follows:

27…In this case, it not just on Mr. Angelini’s cell phone that P.C. Delgado left his message but on his designated emergency number. Surely police are entitled to assume that leaving a message on a lawyer’s emergency line would be the most expeditious means by which to contact counsel.

28Having left a message on counsel of choice’s emergency line, P.C. Delgado acted reasonably in waiting 16 minutes before offering Ms. Wijesuriya another opportunity to consult with duty counsel. I also accept P.C. Delgado’s evidence that he would have persisted with his attempts to contact counsel of choice had Ms. Wijesuriya refused his second invitation to contact duty counsel. But Ms. Wijesuriya did speak to duty counsel, expressed no dissatisfaction with their conversation and made no further requests for her counsel of choice. …

The Position of the Appellant/Defence

37The Defence submits that Officer Delgado failed to take the necessary steps required at law to facilitate a reasonable opportunity for Ms. Wijesuriya to speak with Mr. Angelini. In particular, the Defence alleges the following errors of law on this appeal:

a) The learned trial judge erred as to the police obligations to facilitate a reasonable opportunity to Ms. Wijesuriya to speak with Mr. Angelini;

b) The learned judge erred in failing to find that Officer Delgado defaulted to duty counsel rather than compliance with Ms. Wijesuriya’s Charter right to speak with Mr. Angelini;

c) The learned judge erred in relying on Ms. Wijesuriya’s failure to express dissatisfaction with her consultation with duty counsel; and

d) The learned judge erred in failing to find that Officer Delgado did not wait long enough before asking Ms. Wijesuriya to provide a breath sample.

Overview

38At the heart of the Defence's appeal is the extent of the police obligation to comply with a detainee's s. 10(b) Charter rights.

39The Defence submits that, for there to be s. 10(b) Charter compliance, the police must take "all available means"; make "all efforts the detainee would have made"; and take the additional "minimum" steps described in R. v. Maciel, 2016 ONCJ 563, to contact the detainee’s counsel of choice.

40I conclude that the detainee's s. 10(b) Charter right requires the police to take reasonable steps to provide the detainee with a "reasonable opportunity” to contact counsel of choice. This is the applicable standard against which the police efforts to facilitate contact with counsel of choice must be measured in each case, including where the police decide to facilitate contact with counsel by undertaking to initiate a call on behalf of the detainee.

41I find that the trial judge applied the correct legal test to her findings of fact.

42The balance of the Defence alleged errors of law are, in reality, a challenge to trial judge’s factual findings. Since the Defence agreed at the commencement of the appeal that the Defence does NOT allege the trial judge made any palpable and overriding findings of fact, the challenge to the trial judge’s factual determination that Officer Delgado complied with the police obligations by providing Ms. Wijesuriya a reasonable opportunity to speak with her counsel, are not appealable errors in the trial judge's dismissal of the s. 10(b) Charter application.

1. What are the Police Obligations under s. 10(b)?

43The Defence submits that, when a detainee requests to speak with a specific counsel, the police are obligated to:

a) Take “all available means”; or

b) Do “what the detainee would do”; and

c) Take the “minimum steps” described in Maciel to contact the detainee's counsel of choice,

failing which there is a breach of the police’s implementational obligation under s. 10(b) of the Charter.

Analysis

Police Obligations under s. 10(b)

44If a detainee makes a request to the police to speak to a specific counsel, the police are required to take reasonable steps to provide the detainee a reasonable opportunity to retain and consult with counsel of choice.

45A detainee’s rights to counsel and caution upon detention were described in R. v. Bartle, [1994] 3 S.C.R. 173, at p. 192. Section 10(b) of the Charter requires that the police:

a) 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;

b) 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

c) 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).

46The Supreme Court in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 38, also described the police’s s. 10(b) obligation as a "reasonable opportunity" to retain and instruct counsel.

47The Supreme Court in R. v. Willier, 2010 SCC 37 reiterated the same standard:

33Detainees who choose to exercise their s. 10(b) right by contacting a lawyer trigger the implementational duties of the police. These duties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioning the detainee until that reasonable opportunity is provided. However, these obligations are contingent upon a detainee’s reasonable diligence in attempting to contact counsel: R. v. Tremblay, [1987] 2 S.C.R. 435; R. v. Black, [1989] 2 S.C.R. 138; R. v. Smith, [1989] 2 S.C.R. 368. What constitutes reasonable diligence in the exercise of the right to contact counsel will depend on the context of the particular circumstances as a whole....

34Such a limit on the rights of a detainee are necessary, as Lamer J., as he then was, noted in Smith, “because without it, it would be possible to delay needlessly and with impunity an investigation and even, in certain cases, to allow for an essential piece of evidence to be lost, destroyed or rendered impossible to obtain. The rights set out in the Charter, and in particular the right to retain and instruct counsel, are not absolute and unlimited rights. They must be exercised in a way that is reconcilable with the needs of society” (p. 385).

35Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole and may include factors such as the seriousness of the charge and the urgency of the investigation: Black. If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended ......

(emphasis added)

48This police obligation to provide a detainee a "reasonable opportunity" to speak with counsel of choice was recently repeated by the Supreme Court in R. v. Taylor, 2014 SCC 50 at paras. 22-23.

49I am satisfied that the Supreme Court has consistently stated that the police must take reasonable steps to provide a detainee with a “reasonable opportunity”, in all the circumstances, to retain and consult with the detainee’s counsel of choice. That is the applicable law and standard to be applied.

50When a detention occurs at night, the most obvious manner for a detainee to retain and instruct counsel of choice is by phone. I note in the authorities provided, as in this case, the police do not simply give the detainee a phone to use and call whomever they please.

51During a detention, sometimes the detainee gives the police a lawyer’s telephone number. In other cases, the detainee gives the police a lawyer’s name which requires the police are to make reasonable efforts to locate a telephone number for that lawyer. Generally, once a telephone number has been located for the lawyer, the practice in this jurisdiction is that the police provide the detainee a phone on which the officer already has the lawyer on the line. The steps and efforts taken by the police, to locate a telephone number for a lawyer and/or to contact the lawyer, vary from case to case but must be reasonable. What constitutes reasonable steps depends on the circumstances.

52Nothing can be made of the fact that the police facilitate contact with counsel of choice on police phones rather than the detainee’s phone. The Supreme Court has made it clear that the detainee has no right to use their own phone - it is only access to a phone that is required to exercise their right to counsel. See R. v. Taylor, 2014 SCC 50

28But the police nonetheless have both a duty to provide phone access as soon as practicable to reduce the possibility of accidental self-incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated. While s. 10(b) does not create a “right” to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right to counsel at the first reasonable opportunity.

53The Defence relies heavily on what the learned judge in Maciel described as the police’s Charter obligation to comply with a detainee’s right to consult with counsel of choice, when the police use their own phone.

54The Defence also relies on R. v. Doobay, [2019] O.J. No. 6387. Doobay relies heavily on the police’s Charter obligations set out in Maciel. See para. 30.

55The Defence submits that the police are required to take the additional or enhanced steps/actions described in Maciel and Doobay to fulfill their obligation to provide the detainee with a “reasonable opportunity” to contact counsel of choice, including, taking the “minimum” steps described in Maciel.

Enhanced or Additional Obligation?

56In Maciel, the court found an enhanced obligation upon the police because the Peel police failed to permit a detainee the use of a phone or computer to locate and contact counsel directly:

41For reasons that went unexplained before me, the evidence at trial made clear that the Peel Regional Police have assumed the responsibility of contacting counsel on behalf of those who are in police custody. This is in contrast to the practice elsewhere in the country, where the police discharge their duty to provide persons in custody with a reasonable opportunity to contact counsel by providing them with the means to do so. For example, it would appear that in Alberta, those who assert their right to counsel are given access to a telephone, a lawyer’s directory, phone books and are even provided with access to the Internet. [24] In contrast, the Peel Regional Police have assumed the responsibility of consulting such resources on behalf of persons in their custody who assert their right to consult a lawyer of their choosing.

42Quite obviously, it is not my role to second-guess police operational procedures. [25] And, to be clear, I do not believe there is anything constitutionally objectionable with the police assuming the responsibility of contacting counsel on behalf of those in their custody. That said, it is very much the function of the courts to assess the adequacy of police efforts in the discharge of their constitutional obligations. It follows that if the police assume the responsibility of contacting counsel of choice on behalf of a person who is in their custody, then it is for the courts to assess the adequacy of those efforts. Of course, this begs the question as to what standard should be used in evaluating the adequacy of police efforts.

(emphasis added)

57The court in Maciel then proceeded to describe this higher police "standard" when a detainee is not provided access to a phone or computer to use directly:

47In a jurisdiction like Peel, where the police have assumed the responsibility to contact counsel of choice, I think it sensible to outline the sort of steps that should be undertaken to obtain counsel’s contact details in order to satisfy the reasonable diligence standard. In my view, common sense suggests that at a minimum this should include:

• Asking the person in custody if they have a telephone number, or know anyone who has a telephone number, for the lawyer they want to contact;

• Giving the person in custody access to their cellular phone or smart phone, where they advise that they have the lawyer’s number stored on such a device;

• Conducting an Internet search to determine if the lawyer has a website and consulting any such website to locate a cellular phone number or e-mail address for the lawyer, and calling, texting, and/or e-mailing these;

• Using the Internet to search any available online directories, for example Canada 411, CanadianLawList, or the Law Society of Upper Canada’s Paralegal and Lawyer Directory.

• Using any available conventional paper based directories, both for lawyers and for phone numbers more generally (i.e. The White or Yellow Pages).

48In my view, in this day and age, these are the sorts of very basic steps that any reasonably diligent individual who was attempting to contact a lawyer would undertake. These are entirely in keeping with the Supreme Court’s direction that the police are required to take proactive steps to turn the right to counsel into access to counsel. Further, given the obligation upon the police to be reasonably diligent in contacting counsel of choice, it would make good sense for them to properly memorialize the steps that they undertake as they endeavour to discharge their constitutional obligations.

58In my view, the authorities, including the Supreme Court authorities referred to above, make it clear that the detainee has no right to use of their own phone. Where the police seek to discharge their implementational obligation to the detainee by finding a telephone number for the lawyer or dialing the lawyer’s telephone number on a police phone (as opposed to allowing the detainee to call on her/his own phone), the court’s have, in such situations, consistently required the police to take reasonable steps to provide the detainee with a “reasonable opportunity” to speak with their counsel of choice.

59The Supreme Court has not established one standard of police conduct if the detainee is given direct access to a phone (including the detainee’s phone) and/or computer to use as they see fit and a different standard if the police take steps to facilitate the detainee’s Charter right when the police choose to locate/dial the lawyer’s telephone number on a police telephone. What constitutes reasonable steps by the police in the two situations will no doubt differ, but the standard remains that the police must take reasonable steps to provide the detainee a reasonable opportunity to speak with counsel of choice.

60It would appear to me that, if the police give the detainee a phone and computer to use as they see fit over a reasonable period of time, this would likely constitute a "reasonable opportunity" to facilitate contact with their counsel of choice. If the police assume the responsibility to locate and/or contact counsel of choice on a police phone, the court considers whether the steps and actions taken by and available to the police, in the circumstances, amounted to a "reasonable opportunity" to facilitate the detainee’s contact with counsel of choice. In other words, did the police take reasonable steps, in the circumstances, to contact the detainee’s counsel of choice?

61I am not persuaded that, where the police are obliged to take steps to locate a lawyer’s telephone number or contact counsel of choice, there is an enhanced obligation on the police. The police must take reasonable steps to provide the detainee a reasonable opportunity to contact counsel of choice given all the circumstances.

62There is no evidence before me as to what occurs in other jurisdictions with respect to a detainee's direct and unrestricted access to a phone or a computer. No doubt, there are many situations where it is or may be highly inappropriate or even dangerous to provide a detainee with unlimited phone or computer access including putting at risk the investigation. In any event, it is not for this court to question the policy of provincial, regional or municipal policies on this issue but rather to ensure a detainee’s Charter rights are complied with.

63Any extension of the police's Charter obligation, beyond requiring tht police to take reasonable steps to provide the detainee with a "reasonable opportunity" to facilitate contact with counsel of choice, assessed in all the circumstances, is neither required, necessary nor appropriate.

What the detainee would have done?

64The Defence in the present case submits that the standard for police conduct is “what the detainee would have done.” The Defence relies on the following from Maciel to support this submission:

43If the police did not assume this responsibility, those in detention would be expected to exercise reasonable diligence in contacting their lawyer of choice. Where the police take on this function on behalf of the detainee, it seems eminently sensible to subject their efforts to the same standard. Anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing. In that regard, I completely agree with the comments of Justice Horkins, who noted:

When the police, as an institution, decide to take control of the accused's means of accessing counsel of choice, they also assume the obligation to pursue that constitutional right with all the same effort and diligence that the accused himself would apply. [26]

I believe this standard is in keeping with the duty upon the police to facilitate contact with a detainee’s counsel of choice. I therefore intend to apply it in assessing the adequacy of the police efforts in this case.

(emphasis added)

(See also para. 48 in Maciel)

65In my view, applying such a standard is inappropriate for several reasons.

66The first problem is that this requires a “hindsight” analysis of what a detainee would have done. This will often leave the court to speculate on what might have been done. Hindsight at a voir dire, months or years later, would likely raise other possibilities of what might or could have been done which were neither contemplated, reasonable nor would necessarily have assisted to contact counsel. And then there is what to make of this speculative hindsight approach.

67A danger of this type of speculative hindsight approach can be seen in Doobay, where the court speculated what might have been found if the police officer had searched a website and what might have been discovered:

34In my view, the steps PC Cronin took to try to contact Mr. Neuberger fell short of what ought to now be considered reasonable. Leaving multiple voice mails on a lawyer’s office phone at a time of day when the office is obviously closed should no longer be seen as sufficient, when – as here – the officer has Internet access and can very easily check the lawyer’s website for an after-hours or personal cell phone number. While there is no evidence in the trial record as to exactly what PC Cronin would have learned if he had done this in March 2017, there is at least a reasonable possibility that he would have discovered a different and more effective method of contacting Mr. Neuberger early on a Saturday morning.

(emphasis added)

68In my view, it is inappropriate to speculate that a “different and more effective method of contacting” counsel of choice might have been available rather than focusing on what steps the police had actually taken in the circumstances of the case and whether the steps taken by the police were reasonable in the circumstances to provide the detainee a reasonable opportunity to speak with counsel of choice.

69For example, if the telephone number provided by the detainee for their counsel of choice is the wrong number, did the police make reasonable efforts to find an alternate telephone number for the counsel of choice? Similarly, if the detainee wants to contact a third party (i.e. his/her mother) to obtain the name/number for the detainee’s lawyer, did the police take reasonable efforts to obtain the information for the detainee’s lawyer from the third party or elsewhere? What the police must reasonably do to comply with the detainee’s Charter obligation is a highly factually intense analysis.

70The trial judge in the present case was cognizant of the fact that there was no evidence as to what other potential enquiries suggested by Defence in closing submissions, would or would not have discovered other contact methods for Mr. Angelini. See page 239 of the transcript.

71The second problem is that this “what the detainee would do” obligation would engage a subjective analysis. The police would be faced with an amorphous obligation that could not be assessed and implemented with certainty during the detention. Detainees differ. What individual detainees would do will no doubt differ. It makes little sense that Charter compliance for a particular detainee will depend on such matters as a detainee’s technical proficiencies with the telephone and internet.

72I agree with the comments made by Schreck J. in R. v. O’Shea, 2019 ONSC 1514 where he stated that once the police undertake to contact the detainee’s counsel of choice, their reasonable efforts must be assessed with this in mind. However, as Schreck J. noted, that this does not mean “the police are obliged to take every step an accused would take at the exact times that she would take them”, explaining that “[t]he standard …is whether the police took all steps that were reasonable in the circumstances” (at para. 22).

73I reject that the police obligation to facilitate the detainee’s right to contact counsel of choice is dependent on what the detainee would have done. In assessing whether the police discharged their obligation to the detainee’s s. 10(b) Charter right, the focus should be whether the police took reasonable steps in the circumstances to facilitate a reasonable opportunity for the detainee the right to speak with their counsel of choice.

Minimum Obligations?

74The Defence points to the “minimum” obligations of the police, as described in Maciel, to satisfy their s. 10(b) Charter obligation:

47In a jurisdiction like Peel, where the police have assumed the responsibility to contact counsel of choice, I think it sensible to outline the sort of steps that should be undertaken to obtain counsel’s contact details in order to satisfy the reasonable diligence standard. In my view, common sense suggests that at a minimum this should include:

• Asking the person in custody if they have a telephone number, or know anyone who has a telephone number, for the lawyer they want to contact;

• Giving the person in custody access to their cellular phone or smart phone, where they `advise that they have the lawyer’s number stored on such a device;

• Conducting an Internet search to determine if the lawyer has a website and consulting any such website to locate a cellular phone number or e-mail address for the lawyer, and calling, texting, and/or e-mailing these;

• Using the Internet to search any available online directories, for example Canada 411, CanadianLawList, or the Law Society of Upper Canada’s Paralegal and Lawyer Directory.

• Using any available conventional paper based directories, both for lawyers and for phone numbers more generally (i.e. The White or Yellow Pages).

48In my view, in this day and age, these are the sorts of very basic steps that any reasonably diligent individual who was attempting to contact a lawyer would undertake. These are entirely in keeping with the Supreme Court’s direction that the police are required to take proactive steps to turn the right to counsel into access to counsel. Further, given the obligation upon the police to be reasonably diligent in contacting counsel of choice, it would make good sense for them to properly memorialize the steps that they undertake as they endeavour to discharge their constitutional obligations.

(emphasis added)

75The facts and circumstances of each case are unique. The factors at play in what constitutes reasonable efforts in the circumstances to provide the detainee a “reasonable opportunity” to facilitate contact counsel of choice will require and be dependent on a consideration of all relevant circumstances including:

a) The time of the detention;

b) The type of day of the detention;

c) The status and next steps of the investigation;

d) The information provided by the detainee;

e) The efforts of the police made to contact counsel of choice;

f) The results of the police efforts; and

g) The elapsed time since the detention.

76The court applies a contextual analysis of all the relevant facts and circumstances against the steps reasonably available and taken by the police to facilitate the detainee with a “reasonable opportunity” to contact counsel of choice.

77An example where “minimum” requirements would be inappropriate is the present case. In this case, the detainee provided Officer Delgado with Mr. Angelini’s telephone line (possibly his cell phone as described by the trial judge). Officer Delgado called that telephone number. It was the right number for Mr. Angelini. The message on that telephone number provided an “emergency number” to contact Mr. Angelini. Officer Delgado called that emergency number. Officer Delgado left a message at both telephone numbers.

78The Defence points to further and other searches on the internet or a Legal Directory which Officer Delgado could have undertaken taken, and which might have uncovered other contact information for Mr. Angelini. I reject this submission. In these circumstances, complying with the “minimum” requirements described in Maciel, such as an internet search to find a website for Mr. Angelini which might have discovered another telephone number for him, makes little sense, and was not reasonable, given that the police already had a contact for the counsel of choice’s telephone and counsel’s emergency line.

79In my view, there is good reason the law requires the police to take reasonable steps to afford the detainee a “reasonable opportunity” to speak with counsel of choice without specifying exactly or setting minimum standards of what police steps and conduct satisfied a “reasonable opportunity” in any particular case. The standard described by the Supreme Court of “reasonable opportunity” provides the much-needed flexibility in any particular case.

Conclusion

80In my view, the law requires the police, in the context of all the relevant circumstances, to take reasonable steps to provide a detainee with a “reasonable opportunity” to implement the detainee’s s. 10(b)’s Charter right.

Application to this case

81The trial judge concluded that, in these circumstances, Officer Delgado had provided Ms. Wijesuriya a “reasonable opportunity” to consult with counsel of choice. The trial judge applied the correct legal test.

82As stated above, this judicial determination of what constitutes “reasonable opportunity” is a highly factual determination. In this case, the police did contact Mr. Angelini’s telephone number given by Ms. Wijesuriya. The police listened to the message on that line which provided an emergency contact number. The police followed up. The police contacted Mr. Angelini’s emergency number on multiple occasions. After numerous efforts and considerable delay, messages were left on both of Mr. Angelini’s first telephone line and emergency line.

83The delay in contacting Mr. Angelini does not lie with Officer Delgado or minimize his efforts to contact Mr. Angelini.

84In my view, there was no obligation on Officer Delgado or the need to search the internet or ask Ms. Wijesuriya of another method to contact Mr. Angelini. This was not a reasonable step for the police to take in the circumstances. Contact with Ms. Wijesuriya’s counsel of choice had been achieved. The police now simply needed to wait a reasonable time for a call from Mr. Angelini.

85The Defence submission would have this court embark upon speculation that there may have been something else, somewhere else which might have expedited communication with Mr. Angelini better than leaving a message on his emergency line. I agree with the trial judge’s conclusion that “surely police are entitled to assume that leaving a message on a lawyer’s emergency line would be the most expeditious means by which to contact counsel”.

86However, in this case, there are further factors the trial judge was entitled to consider on the s. 10(b) Charter application. Ms. Wijesuriya’s decision to “accept” to speak with duty counsel and, when again provided with her Charter right to counsel, not to repeat her request to speak with Mr. Angelini or express any dissatisfaction with duty counsel. These facts are relevant to the Charter application and were available to the trial judge to consider.

2. The Failure to Wait Longer

87The Defence submits that the police should have waited longer for Mr. Angelini’s response to the messages Officer Delgado left on the two telephone lines. This is essentially a factual attack on the trial judge's finding that Officer Delgado provided a reasonable opportunity to Ms. Wijesuriya’s request to speak with Mr. Angelini. I am not persuaded the trial judge made a palpable and overriding error in this regard.

88Ms. Wijesuriya was arrested at 1:42 a.m. Officer Delgado escorted Ms. Wijesuriya to the breathalyzer technician shortly after 2:56 p.m. A breath sample was demanded by Officer Bowes at 3:09 a.m. This is almost one and a half hours after Ms. Wijesuriya’s arrest and 59 minutes after the first call the Mr. Angelini's telephone number. This is also 47 minutes after the police officer left the first message on Mr. Angelini’s first telephone line. This demand was made 40 minutes after the police officer left a message on Mr. Angelini’s emergency line.

89In addition, one of the circumstances the trial judge was entitled to consider and did consider in assessing the Charter application is that a breath sample must be taken “as soon as practical” – that is “within a reasonably prompt time under the circumstances” (see R. v. Vanderbruggen, [2006] 208 OAC 379 (C.A.)).

90The trial judge found that, in all the circumstances leading up to the 3:09 a.m. breath demand by the breathalyzer technician, Officer Delgado’s efforts had provided Ms. Wijesuriya with a reasonable opportunity to speak with Mr. Angelini.

91This finding was available to the trial judge on the evidence. The trial judge made no palpable and overriding error.

3. Circumventing S. 10(b)

92The Defence submits that the trial judge failed to find that Officer Delgado circumvented Ms. Wijesuriya's right to counsel of choice by calling duty counsel and relied too heavily on Ms. Wijesuriya's failure to express dissatisfaction with her consultation with duty counsel.

93Although argued in submissions, the trial judge did not find that Officer Delgado "circumvented" Ms. Wijesuriya's right to speak with counsel of choice. The trial judge fully canvassed the facts relating to the call to duty counsel and Ms. Wijesuriya's subsequent acceptance to speak with duty counsel and lack of further request to speak with Mr. Angelini to arrive at the dismissal of the Charter application. The trial judge was entitled to come to the findings of fact and applied them to the correct legal test.

94The Defence relies on R. v. Traicheff, 2010 ONCA 851. Traicheff does not assist the Defence in this case. In Traicheff, the detainee was arrested at 12:38 a.m. The one call to the detainee’s counsel of choice was made at 12:57 am. The police officer did nothing else. At 1:20 a.m., with no response from counsel of choice, the officer called duty counsel, the detainee spoke to duty counsel but gave evidence at the voir dire that he was not satisfied with the advice from duty counsel. The circumstances are entirely different than this case.

95Similarly, the Defence reliance on R. v. Vernon, 2015 ONSC 3943, [2015] O.J. No. 4157 is misplaced. The detainee was arrested, within 3 minutes a call was made to counsel of choice, within a minute later the police officer called duty counsel. In these circumstances the police officer took little or no steps to facilitate the detainee’s right to speak with counsel of choice.

96In this case, Ms. Wijesuriya, when first asked whether she wanted to speak to duty counsel, Ms. Wijesuriya said no – she wanted to speak with Mr. Angelini. The police made efforts to contact Mr. Angelini. After being unable to contact Mr. Angelini, she was again asked if she wanted to speak with duty counsel, she repeated her request to speak with Mr. Angelini. Again, the police attempted to contact Mr. Angelini. After being unable to contact Mr. Angelini the second time and when "offered" again to speak to duty counsel, she expressed no refusal or a repeat of her request to speak with Mr. Angelini. She agreed she “accepted” to speak with duty counsel but offered an explanation. Her explanation was that she felt she had no choice. This explanation is inconsistent with her two earlier refusals to speak with duty counsel and expressions to speak with Mr. Angelini. There was no further objection or concern expressed by Ms. Wijesuriya. The trial judge was entitled to reject this explanation.

97Further, the trial judge found as a fact that, if Ms. Wijesuriya had expressed any concern regarding speaking with duty counsel or repeated her desire to speak with Mr. Angelini, Officer Delgado would have continued to try to contact Mr. Angelini (as he had done the first time, he suggested she speak with duty counsel). The trial judge was entitled to make this finding and rely on this fact.

98The relevant circumstances do not end there. Subsequently, there was a further right to counsel provided to Ms. Wijesuriya by Officer Bowes. Again, Ms. Wijesuriya understood her right to speak to Mr. Angelini but made no mention to Officer Bowes that she continued to want to speak to Mr. Angelini.

99In these circumstances, I am not persuaded that the police conduct “circumvented” Ms. Wijesuriya’s right to speak with counsel of choice or that too much weight was placed on Ms. Wijesuriya’s failure to again request to speak with Mr. Angelini.

100I see no error with the trial judge's conclusion.

4. Failure to advise Ms. Wijesuriya she could speak with alternate counsel

101I agree, it is a factor the police officer did not tell Ms. Wijesuriya that, if they did not get a hold of Mr. Angelini before the expiry of a reasonable time, such as within 2 hours of her arrest, she would be required to produce a breath sample. This might have given Ms. Wijesuriya an opportunity to select another counsel to consult or decide whether to speak with duty counsel.

102However, given Ms. Wijesuriya’s acceptance to speak with duty counsel and her lack of objection or dissatisfaction with duty counsel or repeating her request to speak with Mr. Angelini, the significance of this factor is far less important in the overall finding in this case.

103The trial judge was entitled to consider and did consider all the facts and circumstances of that morning to dismiss the Charter application. The trial judge committed no appealable error.

Conclusion

104Having disposed of the applicable standard by which the police conduct requires them to provide a "reasonable opportunity" to facilitate a detainee speaking with counsel of choice, the remaining issues challenge the factual determinations of the trial judge.

105In R. v. Canavan, 2019 ONCA 567, the court stated, and it is equally applicable to this case:

15 The appellant does not submit that the trial judge committed any error in principle in arriving at her conclusion. Instead, the appellant contends the trial judge erred by failing to find that in the circumstances the police were not reasonably diligent in facilitating the appellant's ability to contact counsel. The appellant contends that the police should have done more to facilitate putting him in touch with his counsel of choice. Specifically, he contends that the police should have phoned counsel's cell phone number, and not simply sent a text.

16 Absent palpable and overriding error, the trial judge's findings on this issue are entitled to deference. The appellant has not demonstrated any such error. As to the appellant's contention that police efforts were insufficient because an officer did not follow up a text to the counsel of choice with a call to the lawyer's cell phone number, the evidence from Sgts. Houser and Porterfield, taken together, was that the message played on the lawyer's office phone directed that a text be sent to the specified number. The police followed the preferred method of communication identified by the counsel of choice.

17 Accordingly, we see no basis to interfere with the trial judge's conclusion that the police showed reasonable diligence in the circumstances to facilitate the appellant's exercise of his s. 10(b) rights. We do not give effect to this ground of appeal.

(emphasis added)

106On the same basis, the appeal on these grounds is dismissed.

SECTION 24(2)

107I agree with the trial judge that there was no s. 10(b) Charter breach. However, since it was addressed during submissions, let me deal with s. 24(2).

108Essentially, the Defence relies on systemic failings by the police to facilitate a detainee’s right to speak with counsel of choice. The Defence points to legal authorities as proof of this systemic failing by the police in Peel.

109The difficulty with this submission is that, even if there is a systemic failure, it is not evident on the record in this case. Officer Delgado went through extensive efforts to contact Mr. Angelini. A great deal of time elapsed, not because of the police officer’s lack of diligence or ignoring Ms. Wijesuriya’s Charter rights. The efforts by the police officer in this case were extensive and demonstrable of a substantial effort to facilitate Ms. Wijesuriya’s Charter right to speak with Mr. Angelini.

110The analytical framework in R. v. Grant, requires this court to assess and balance the effect of admitting or excluding the evidence by considering the following factors: 1) the seriousness of the Charter infringing state conduct; 2) the impact of the breach on Ms. Wijesuriya’s Charter protected interests; and 3) society’s interest in the adjudication of the case on its merits. Thereafter, the court, considering and balancing these factors and all the circumstances, determine whether the admission or the exclusion of the evidence would bring the administration of justice into disrepute.

111In this case, the police acted in good faith. There is no evidence of any systemic issue at play in these circumstances. The first factor favours admission. The Criminal Code requires that a person comply with a demand for a breath sample. There is no choice to a detainee to refuse otherwise, they face a charge of refusing to provide the breath sample. At best the second factor is neutral. The final factor clearly favours admission.

112Balancing these factors, in the circumstances of this case, the evidence is admissible.

INADEQUATE REASONS

113The Defence submits that, at trial, an issue was raised regarding the breathalyzer equipment working properly. The Defence submits this fact, if so found by the trial judge, might raise a reasonable doubt that Ms. Wijesuriya refused to provide a breath sample.

114There are several applicable principles to be noted. Trial judges do not have to review or deal with all pieces of the trial evidence in their reasons. The reasons must be sufficient to permit appellate review. Questions asked by counsel are not evidence, only the witness’ answers are evidence.

115During the trial, the Defence suggested that the breathalyzer equipment was making a tone sound, which it was not supposed to make when there was no air blown into it. The Defence showed the breathalyser technician segments of the breathalyser video and suggested that the machine was making the tone sound when no air being blown into the receiver, thereby suggesting that the breathalyser machine was not working properly. In each case, the breathalyser technician disagreed with the suggestion and explained why. Officer Bowes testified that the breathalyser worked properly that morning.

116The trial judge found the breathalyzer machine was working properly.

117The trial judge did not or need to refer to the Defence suggestions in his questions since Officer Bowes disagreed with them. A trial judge need not set out in his/her reasons why every Defence suggestion is rejected by the court. The trial judge was entitled to accept Officer Bowes evidence that the breathalyzer equipment was working properly.

118As a result, contrary to the submission of the Defence in this appeal, there was no failure by the trial judge to resolve crucial evidence.

119I am not persuaded that the trial judge’s reasons for decision are deficient. The trial judge's reasons dealt with the trial issues in this case and are sufficient to permit appellate review.

120This submission has no merit.

CONCLUSION

121The appeal is dismissed.

Ricchetti J.