Court File and Parties
COURT FILE NO.: SCA(P) 110/22 DATE: 2023 03 02
ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL
BETWEEN:
HIS MAJESTY THE KING Appellant – and – SYED RIZVI Respondent
Counsel: Patrick Quilty, for the Crown / Appellant Y. Obouhov, for the Respondent
HEARD: October 26, 2022
Reasons for Judgment
[On Appeal from the Judgment of Justice D. McLeod, dated March 9, 2022]
J.M. WOOLLCOMBE J.
Introduction
[1] The Crown appeals the March 9, 2022 decision of Justice D. McLeod acquitting the respondent, Syed Rizvi, of one count of excess blood alcohol, contrary to s. 430.14(1) of the Criminal Code. It is the Crown’s position that the trial judge erred in law in finding that the respondent’s right to counsel under s. 10(b) of the Charter had been breached. In the alternative, the Crown submits that if there was a s. 10(b) breach, the trial judge erred in excluding the breath sample under s. 24(2) of the Charter. The Crown seeks an order setting aside the acquittal and entering a finding of guilt.
[2] The Crown also urges the Court to identify precisely how long a detainee is entitled to wait for counsel of choice in impaired driving cases. It is the Crown’s position that there should be a “bright line rule” set by the Court respecting how much time the police must wait between leaving a message with counsel of choice and insisting that a detainee either speak to duty counsel or provide a first breath sample.
[3] The respondent’s position is that the trial judge made no error in finding a s. 10(b) breach and that the breath samples were properly excluded under s. 24(2). The respondent submits that the appeal should be dismissed.
Summary of Relevant Facts
[4] The relevant facts are not in dispute. At trial, the defence conceded that the Crown had proven all elements of the over 80 charge. The only issue was the claim of a s. 10(b) Charter violation and the remedy if there was a breach.
[5] It was alleged that in the early morning of November 17, 2019 (between 1:00 and 1:45 a.m.), the respondent drove his vehicle “extremely fast” southbound on Erin Mills Parkway. He hit another vehicle, mounted the curb and kept going, almost hitting a lamppost before coming to a stop. The driver of the other vehicle made a 911 call within 10 minutes of the collision and testified that the officer arrived between 15 and 30 minutes after the collision.
[6] Peel Regional Police Constable Co was dispatched to the scene at 1:55 a.m. and arrived at 2:02 a.m. At 2:05 a.m., he arrested the respondent for “over 80”. At 2:07 a.m., Constable Nichols arrived on the scene and took custody of the respondent. He placed the respondent in the rear of his cruiser and read him his rights to counsel, starting at 2:10 a.m.
[7] When the respondent was asked if he wished to call a lawyer “now”, he responded, at 2:12 a.m., “I want to call Legal Aid right now”. Constable Nichols asked if he had a specific lawyer to contact and he said “no”. The respondent was then cautioned and a breath demand was made. At 2:14 a.m., the respondent changed his mind and told Constable Nichols that he wished to speak to a personal lawyer.
[8] They arrived at the Airport Division at 2:42 a.m. At 2:46 a.m., the respondent advised Constable Nichols that he wanted to speak to his personal lawyer, Randy, and gave the officer Randy’s telephone number. At 2:49 a.m., Constable Nichols called the number. There was no answer. He left a voicemail message, providing his name, and indicating that he had a client in custody for impaired and asked him to call back.
[9] Constable Nichols could not recall what, if anything, he told the respondent about how long he would give Randy to call back.
[10] At 2:56 a.m., 7 minutes after the message had been left for Randy, when asked by the officer if there was any other lawyer that he wanted police to contact, the respondent provided the name of another lawyer, Maurizio, and his phone number. The officer called Maurizio and left a message for him at 2:58 a.m.
[11] Constable Nichols testified that in his experience, when the time passes 2:00 or 3:00 a.m., the chances of detainees reaching personal lawyers becomes low. As a result, the officer asked the respondent if he wished the police to contact duty counsel for him. The respondent was told that this did not remove his right to speak to his own lawyer if they called back. Under cross-examination, Constable Nichols explained that he told the respondent that they had called both his personal lawyers and that they wanted him to be able to speak with counsel, but that because of the time, the lawyers might not call back and that duty counsel would call back for sure. He was clear to the respondent that if his personal lawyer called, he would be able to speak to him.
[12] At 3:01 a.m., Constable Nichols left a message for duty counsel.
[13] Between 3:01 and 3:08 a.m., Constable Nichols spoke to the breath tech, Constable Halfyard. Constable Halfyard understood that the respondent had said he wanted to speak to counsel and had provided two names. Both had been called: Randy at 2:49 a.m. and Maurizio at 2:58 a.m.
[14] Constable Halfyard testified that as the breath tech, when a detainee has expressed an interest in speaking with counsel, he allows a reasonable period for counsel to return a call before proceeding any further.
[15] At 3:15 a.m., Constable Nichols left a second message for Randy.
[16] At 3:17 a.m., duty counsel called back and the respondent spoke to him until 3:24 a.m.
[17] At 3:20 a.m., while the respondent was speaking to duty counsel, the Constable left a second message for Maurizio.
[18] At 3:25, a.m., after his call with duty counsel, the respondent was transferred to the custody of the breath tech, Constable Halfyard.
[19] Constable Nichols was asked why, after the respondent had spoken to duty counsel, the police did not wait longer for one of the lawyers to call back before turning him over to the breath tech. He initially responded, “I don’t have a reason why”. He then explained that he had contacted two separate lawyers, twice, and that the respondent had spoken to duty counsel, so he believed that he could be transferred to the breath tech.
[20] Constable Halfyard was asked whether there is a specific length of time he considers reasonable to wait for counsel of choice to call back. It was his evidence that he usually waits 30 minutes from the time the first call is made until the first breath sample is collected. He explained his reasoning. He said that there is a requirement to collect samples in a timely manner and that he understands that the CFS says that a person eliminate between 10 and 20 milligrams of alcohol each hour.
[21] Constable Halfyard said that once the respondent was brought into the breath room, he “went through his rights to counsel” with him. By this, he testified that he explained to him the attempts that had been made to contact his two counsel of choice and that two calls had been made to each of Randy and Maurizio and the times of those calls. He made clear that if either called back at any point in the testing process, the respondent would be able to speak with them in private. He also reviewed with the respondent that he had spoken with duty counsel and that he understood the advice he had been given. At 3:28 a.m. Constable Halfyard read the breath demand.
[22] The respondent provided a first breath sample at 3:33 a.m. and a second at 3:55 a.m.
[23] At 4:05 a.m., while they were in the breath room, Maurizio called back to speak to the respondent. The respondent spoke to him between 4:07 and 4:13 a.m.
The Reasons of the Trial Judge
[24] In his oral reasons for judgment, the trial judge carefully and accurately reviewed the evidence that was relevant to the respondent’s s. 10(b) argument. He then repeated, verbatim (but with the citations excluded) the decision of Stribopoulos J. in R. v. Jhite, 2021 ONSC 3036 at paras. 21-25, 28, 32, and 34. These are the passages in Jhite in which Stribopoulos J. summarized the duties imposed on the police by s. 10(b), the right to counsel of choice, the duty on police to hold off and the law applicable to situations in which counsel of choice is not immediately available. In repeating these passages from Jhite, the trial judge fairly summarized the governing legal principles.
[25] The trial judge was satisfied that there was no breach of the informational component of s. 10(b).
[26] In terms of implementation, the trial judge recognized that the respondent had asserted his right to speak to counsel and had provided the police with names of counsel. He accepted that the officers had made bone fide attempts to reach them both by leaving messages enabling them to call back.
[27] The trial judge then identified what he viewed as the issue:
The issue this court must contend with, however is what information was conveyed to Mr. Rizvi in the event that the other names he provided the officers had not returned their inquiries. In other words, did the police advise Ms. Rizvi of his rights in the event that names he suggested had not returned his phone call? This court finds that this was an integral step that was not done by the officers and, in turn, did not afford Mr. Rizvi with the requisite knowledge to provide an informed waiver. The law is very clear to note that the totality of each circumstance must be taken into account. Within the criminal context, things are generally very dynamic and, for the most part, are not uniform in their application. Mr. Rizvi provided three names, two of which were provided subsequent to him receiving his rights to counsel. The court finds that in this particular circumstance Mr. Rizvi should have been advised that once he had received and accepted the call from duty counsel, the officer would have considered that as satisfaction of his right to counsel. This court finds that if Mr. Rizvi had not provided a series of names and had, in fact, only spoken to duty counsel, the outcome of this portion of the application would have been much different. However, the circumstances of this – as they present in the matter before me – would necessitate a further explanation and/or refinement of the available options to Mr. Rizvi in order for him to provide an informed waiver.
[28] As I understand the judge’s view, it was because the police did not explain to the respondent before he spoke to duty counsel that this would be an alternative to speaking with counsel of choice, that he did not have the knowledge he needed to make an “informed waiver” of the right to counsel of choice.
[29] The trial judge then addressed the issue of whether 30 minutes is a reasonable time for the police to “hold off” the breath test while waiting for counsel of choice to call back. This analysis likely flowed from Constable Halfyard’s evidence that he thought 30 minutes was a reasonable time for counsel of choice to call back. The trial judge concluded:
Although P.C. Halfyard provided the court with a rationale for the 30-minute wait time, this court is of the opinion that in light of the new provisions as articulated above, the parameters are reasonable to not have to be so rigid in their application and is not necessary in the matter before me.
[30] The trial judge then conducted a s. 24(2) analysis. I will not summarize it. In short, he found that the breach was serious and that while the second and third Grant factors favoured admission, the trial judge breath samples should be excluded. The charge was dismissed.
Analysis
Should the Court accede to the Crown’s request that it set clear time limits respecting how long the police must wait for counsel of choice to call back in impaired driving cases?
[31] When a detainee asks to speak with counsel of choice, the police are obligated to take reasonable steps to facilitate the exercise of that right. Police must afford the detainee a reasonable opportunity to consult with counsel of choice. The question, submits the Crown, is how long is reasonable for the police to wait for a return call from counsel of choice when a person has been detained for a drinking and driving offence. Counsel urges me to set out a “bright line rule” for how long police must wait for counsel of choice to call back before administering breath tests. The Crown invites the court to draw a firm line because, counsel says, police “need to know” how long they are required to wait.
[32] In my view there are compelling reasons not to accede to the Crown request for a “bright line rule”.
[33] I begin from the Supreme Court of Canada guidance that police are required to inform a 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. They are also required, if the detainee indicates a desire to exercise that right, to provide the detainee with a “reasonable opportunity” to exercise the right and to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity: R. v. Bartle, [1994] 3 S.C.R. 173 at p. 192; R v. Willier, 2010 SCC 37 at para. 33; R. v. Taylor, 2014 SCC 50 at para. 23.
[34] In Willier, McLachlin C.J.C. and Charron J. specifically addressed the situation in which a detainee wishes to speak with a specific lawyer and that lawyer is unavailable at para. 35:
[35] Should 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: R. v. Ross, [1989] 1 S.C.R. 3; and Black. As Lamer J. emphasized in Ross, diligence must also accompany a detainee’s exercise of the right to counsel of choice, at pp. 10-11:
Although an accused or detained person has the right to choose counsel, it must be noted that, as this Court said in R. v. Tremblay, [1987] 2 S.C.R. 435, a detainee must be reasonably diligent in the exercise of these rights and if he is not, the correlative duties imposed on the police and set out in Manninen are suspended. Reasonable diligence in the exercise of the right to choose one’s counsel depends upon the context facing the accused or detained person. On being arrested, for example, the detained person is faced with an immediate need for legal advice and must exercise reasonable diligence accordingly. By contrast, when seeking the best lawyer to conduct a trial, the accused person faces no such immediacy. Nevertheless, accused or detained persons have a right to choose their counsel and it is only if the lawyer chosen cannot be available within a reasonable time that the detainee or the accused should be expected to exercise the right to counsel by calling another lawyer.
[emphasis added]
[35] The Supreme Court of Canada’s unambiguous direction is that what amounts to a reasonable opportunity for a detainee to contact counsel of choice is fact and context specific and so must be flexible, in accordance with the particular circumstances. It is reasonableness, rather than rigidity, that grounds the analysis. In my view, it is antithetical to this approach for the Court to attempt set out precise timelines that would be reasonable in all circumstances of detentions for drinking and driving offences. The Crown’s request for me to do so flies in the face of clear Supreme Court of Canada direction. If specific timelines are to be rigidly set, it falls to Parliament. Certainly, in my opinion, it is not for the summary conviction appeal court to do so, particularly when this specific issue was never litigated at trial.
[36] I observe that when tasked with determining whether a detainee had a reasonable opportunity to speak with counsel of choice, other courts have recognized the wisdom of a flexible standard of reasonableness. Particularly noteworthy is R. v. Wijesuriya, 2020 ONSC 253, a summary conviction appeal court decision in which Ricchetti J. concluded, at para.79:
In 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.
[37] Ricchetti J. emphasized, at para. 76, that the court must apply “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”. He recognized, at para. 75, that relevant factors could include:
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.
[38] See also: R. v. Persaud, 2020 ONSC 3413 at para. 95; Jhite, at para. 68. These cases reinforce that it would be ill-advised to set a fixed time period for what is reasonable in all circumstances. In summary, there are compelling reasons not to draw the bright line rule sought by the Crown and I decline to do so.
What is the standard of review?
[39] Under s. 813(b)(i) of the Criminal Code, the Crown may appeal from an order that dismisses an information. Section 822 of the Code, gives the summary conviction appeal court the same powers as those in s. 686(4).
[40] On an appeal from a trial judge’s finding of a Charter violation, the trial judge’s factual findings, which grounded his decision, are entitled to deference, absent palpable and overriding error. His legal conclusion respecting whether there was a Charter breach is reviewable on a standard of correctness: R. v. Le, 2019 SCC 34 at para. 23; R. v. Shepherd, 2009 SCC 35 at para. 18.
Did the trial judge err in finding a s. 10(b) breach in this case?
[41] I turn now to whether the trial judge erred in concluding that the respondent’s s. 10(b) rights had been breached. In my view, he did.
[42] I begin from the analysis of the Supreme Court of Canada in Willier, which, while not an impaired driving case, is the leading authority. Mr. Willier was arrested for murder. Police informed him of his right to counsel and facilitated a brief call with Legal Aid. The next day, he was offered another opportunity to speak with counsel and left a message for a specific lawyer. Asked if he wanted to speak with another lawyer, he said that he wanted to wait to hear back from his counsel of choice. However, when told that his counsel of choice was unlikely to call back before his office re-opened the next day. Reminded of the availability of duty counsel, Mr. Willier opted to speak to duty counsel a second time.
[43] In rejecting Mr. Willier’s position that his s. 10(b) right had been violated, the Court noted that this was a case in which having been unsuccessful in contacting one lawyer, Mr. Willier exercised his right to counsel by opting to speak with Legal Aid. Indeed, at para. 43, the Court held:
[43]…In no way did the police interfere with Mr. Willier’s right to a reasonable opportunity to consult with counsel of choice by simply reminding him of the immediate availability of free Legal Aid after his unsuccessful attempt to call Mr. Royal. When Mr. Willier stated his preference to wait, Constable Lahaie reasonably informed him that it was unlikely that Mr. Royal would be quick to return his call given that it was a Sunday, and reminded him of the immediate availability of duty counsel. Mr. Willier was not told that he could not wait to hear back from Mr. Royal, or that Legal Aid was his only recourse. There is no indication that his choice to call duty counsel was the product of coercion. The police had an informational duty to ensure that Mr. Willier was aware of the availability of Legal Aid, and compliance with that duty did not interfere with his right to a reasonable opportunity to contact counsel of choice. Mr. Willier was properly presented with another route by which to obtain legal advice, an option he voluntarily chose to exercise.
[44] The Court specifically held that this was not a case in which Mr. Willier had decided to forgo speaking with counsel entirely. He had not waived his s. 10(b) right. Instead, he had opted to speak with another counsel: Willier, at para. 38.
[45] The Supreme Court of Canada companion case in R. v. McCrimmon, 2010 SCC 36 is also instructive. Arrested for offences against five different women, the accused was advised of his right to call any lawyer he wished and that he had a right to contact a Legal Aid lawyer. He said he wished to call a specific lawyer. Police called that lawyer’s office and, unable to reach him, left a message. The accused said he did not know if he would hear back from that lawyer, and the officer asked if he wanted to call a Legal Aid lawyer. The accused said he would, but that he preferred his own counsel. He spoke with duty counsel and told the officer that he understood the advice he had received.
[46] The majority of the Court summarized the applicable legal principles in this manner at paras. 17-18:
[17] As explained in Willier, the right to choose counsel is one facet of the guarantee under s. 10(b) of the Charter. Where the detainee opts to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles him or her to a reasonable opportunity to contact chosen counsel. If the chosen lawyer is not immediately available, the detainee has the right to refuse to contact another counsel and wait a reasonable amount of time for counsel of choice to become available. Provided the detainee exercises reasonable diligence in the exercise of these rights, the police have a duty to hold off questioning or otherwise attempting to elicit evidence from the detainee until he or she has had the opportunity to consult with counsel of choice. If the chosen lawyer cannot be available within a reasonable period of time, the detainee is expected to exercise his or her right to counsel by calling another lawyer, or the police duty to hold off will be suspended: R. v. Ross, [1989] 1 S.C.R. 3; R. v. Black, [1989] 2 S.C.R. 138.
[18] What amounts to a reasonable period of time depends on the circumstances as a whole, including factors such as the seriousness of the charge and the urgency of the investigation. It is also informed by the purpose of the guarantee. The right to counsel upon arrest or detention is intended to provide detainees with immediate legal advice on his or her rights and obligations under the law, mainly regarding the right to remain silent. As Lamer J. (as he then was) aptly noted in R. v. Brydges, [1990] 1 S.C.R. 190, at p. 206:
It is not always the case that immediately upon detention an accused will be concerned about retaining the lawyer that will eventually represent him at a trial, if there is one. Rather, one of the important reasons for retaining legal advice without delay upon being detained is linked to the protection of the right against self‑incrimination. This is precisely the reason that there is a duty on the police to cease questioning the detainee until he has had a reasonable opportunity to retain and instruct counsel.
It is also because of this immediate need to consult counsel that information about the existence and availability of duty counsel and Legal Aid plans must be part of the standard s. 10(b) caution upon arrest or detention (Brydges). In turn, the detained person, faced with this immediate need for legal advice, must exercise reasonable diligence accordingly (Ross, at pp. 10-11).
[47] Again, at para. 19 of McCrimmon, the majority of the Court concluded that although the accused expressed a preference to speak with counsel of choice, “the police rightly inquired whether he wanted to contact Legal Aid when Mr. Cheevers was not immediately available, Mr. McCrimmon agreed”. In these circumstances, there was no obligation to hold off the interrogation until such time as Mr. Cheevers became available and no s. 10(b) breach.
[48] These cases demonstrate an obvious point: that when a detainee asserts a desire to speak to a specific counsel, the detainee must be afforded a reasonable opportunity to do so. But, they also highlight that if counsel of choice is unavailable, there is nothing preventing police from offering the option of speaking with duty counsel. If a detainee decides to forego speaking with counsel of choice in favour of speaking with duty counsel, that person’s s. 10(b) rights have not been violated. In such a situation, the Court declined to impose on police any requirement to explain to the detainee the consequences of choosing to speak to duty counsel, rather than continuing to wait for counsel of choice to call back. That is because choosing to speak to duty counsel is not a waiver of the right to counsel, it is a decision to exercise the right to counsel by speaking to duty counsel.
[49] This point was made expressly in Willier, in which the Court discussed what has come to be known as a Prosper warning. A Prosper warning, of course, must be given in “specific, narrowly defined circumstances” when a detainee is diligent, but unsuccessful in contacting counsel, changes his or her mind “and decides not to pursue contact with a lawyer”. In these circumstances, the police are required to explicitly inform the detainee of the right to a reasonable opportunity to contact counsel and of the police obligation to hold off until then. Underscoring this obligation is the need to ensure both that the right to counsel is not too easily waived and that the detainee knows what is actually being given up: R v. Prosper, [1994] 3 S.C.R. 235; Willier at paras. 31-32.
[50] The jurisprudence also makes clear that what the police may not do is to “steer” the detainee in the direction of duty counsel and create for them the impression that that they do not have a choice other than to speak with duty counsel As Stribopoulos J. put it in Jhite at paras. 45-46:
[45] In contrast, courts have invariably found violations of s. 10(b) where detainees asserted their right to counsel of choice but then instead spoke with duty counsel because police steered them in that direction and effectively left them with the erroneous impression that they had no other option: see R. v. Singh, 2020 ONSC 1342, at para. 17; R. v. Lewis, 2019 ONSC 5919, 451 C.R.R. (2d) 190, at paras. 44-45; R. v. Vernon, 2015 ONSC 3943, 88 M.V.R. (6th) 84, at paras. 32-33, leave to appeal refused 2016 ONCA 211; R. v. Michael, 2017 ONSC 4579, 17 M.V.R. (7th) 308, at paras. 24-25; R. v. Zaidi (2007), 164 C.R.R. (2d) 271 (Ont. S.C.), at para. 77; R. v. Kumarasamy (2002), 22 M.V.R. (4th) 234 (Ont. S.C.), at para. 29.
[46] The leading case remains Kumarasamy. In that decision, Durno J. held that police cannot “go directly to duty counsel when a detainee wants to contact his or her counsel of choice” cautioning that duty counsel “cannot be used to trump a detainee’s right to counsel of choice”: at para. 21. Although Kumarasamy pre-dates Willier, it is entirely consistent with it. In short, the police cannot foist duty counsel on a detainee who wants to speak with their lawyer of choice. If it were otherwise, the right to counsel of choice would be little more than a “right” in theory but not in practice.
[51] In the respondent’s case, before proceeding to take the breath samples, the police took steps that were reasonable, in the circumstances of this case, to contact counsel of choice: Wijesuriya, at para. 73; Persaud, at para. 95. When the respondent identified the name of counsel as Randy, Constable Nichols placed a call to Randy and left a message at 2:49 a.m. Ten minutes later, when the call to Randy had not been returned, the police sought and obtained from the respondent the name of a specific second counsel of choice, Maurizio. He was called and a message left at 2:58 a.m. This was reasonable and appropriate: R. v. Traicheff, 2010 ONCA 851 at para. 2.
[52] Constable Nichols spoke to the respondent about the fact that counsel of choice had not called back and asked if he wished to speak to duty counsel. While the precise conversation between them was poorly recorded, there is no evidence that the officer told the respondent that he had to speak to duty counsel. This is not a “steering” case (in contrast, for example, with a case like R. v. Vernon, 2015 ONSC 3943; leave to appeal refused, 2016 ONCA 211, upon which the respondent relies). To the contrary, Constable Nichols made clear that counsel of choice had been called, had not returned the calls and that the police wanted the respondent to be able to speak to counsel. He was also clear with the respondent that if counsel of choice called back, the respondent could speak to that lawyer. Duty counsel was then called at 3:01 a.m. and a message left.
[53] In light of the governing authorities, the officer’s call to duty counsel was reasonable and appropriate. Messages had been left for two specific counsel identified by the respondent. It was around 3:00 a.m. Given the time, it was hardly surprising that police would be unsure whether the lawyers would call back. There was also some importance, given the reason for the arrest, for the officers to take additional steps to try to ensure that the respondent had the opportunity to speak to counsel before providing breath samples.
[54] A second message was left for Randy at 3:15 a.m.
[55] Duty counsel returned the call that had been made by police at 3:17 a.m. and spoke to the respondent. During that call, a second message was left for Maurizio by the Constable.
[56] In my view, the only inference to draw from the totality of evidence adduced at trial is that respondent chose, when offered the opportunity to do so, to speak to duty counsel. He did so knowing that if his counsel called back, he would be able to speak to him.
[57] The trial judge focused his analysis not on whether the respondent had chosen to speak to duty counsel, and thus exercised his right to counsel, but, instead, on whether the Constable was required to tell the respondent that once he had spoke to duty counsel, “the Constable would have considered that as satisfaction of his right to counsel”. The difficulty is that this does not accord with the officer’s evidence. The police were clear that even after speaking with duty counsel, the respondent would have been afforded the opportunity to speak to counsel of choice if either counsel called back.
[58] Further, the trial judge was in error to find, as he appears to have, that the there was a “waiver” of the right to counsel by the respondent in the absence of information that he was entitled to before making that waiver. I reach that view because this is not a case in which the respondent waived the right to counsel. Speaking to duty counsel was his choice, and not a waiver of counsel. The respondent was not giving up his right to speak to counsel. As a result, this is not a case in which there was a requirement for the police to provide an additional warning or further specific information, like a Prosper warning. The only evidence is that the respondent was satisfied after speaking to duty counsel. In these circumstances, the trial judge was in error in finding that there was an obligation on the police to provide more information to the respondent. It follows that he was in error in finding a violation of s. 10(b): R. v. Littleford, [2001] O.J. No 2437 (C.A.).
[59] This is sufficient to end the analysis and to allow the appeal.
[60] However, because the trial judge made comments about whether the police waited long enough for counsel of choice to call back, and in the event that I am wrong about the respondent’s choice to speak with duty counsel, I will address this issue as well.
[61] By the end of the respondent’s call with duty counsel at 3:24 a.m., 35 minutes had elapsed since the first call to Randy at 2:49. Prior to the first breath sample being taken, at 3:33 a.m., a total of 44 minutes had elapsed from the first call to Randy.
[62] Any analysis as to whether the respondent was afforded a reasonable opportunity to speak to counsel requires consideration of all of the circumstances. Mr. Livera, the civilian whose vehicle was hit by the respondent, initially said that he thought the collision was between 1:00 and 1:45 a.m. He also said that he made his 911 call within 10 minutes of the collision and the officer arrived between 15 and 30 minutes after the collision. The officer was dispatched at 1:55 a.m. and arrived at 2:02 a.m. This would put the collision between 1:32 and 1:47 a.m.
[63] Thus, by the time the police were preparing to take the first breath sample, more than two hours had elapsed since the respondent had been driving, which, of course, could have ended as early as 1:00 a.m. As Constable Halfyard recognized, there was a requirement to collect breath samples in a timely manner. Indeed, s. 320.28(1) of the Criminal Code, requires a detainee to provide a breath sample “as soon as practicable”. There can be no question that the police interest in obtaining an accurate breath sample is a “significant factor that affects how long it will be considered reasonable for a detainee to wait to speak to counsel of choice”: R. v. Doobay, 2019 ONSC 7272 at para. 27.
[64] At the same time, the existence of s. 320.31(4) of the Criminal Code, the statutory read back provision must be considered. This section allows that if the first breath sample is taken more than two hours after the person ceased to operate the conveyance, and the reading is at least 20 mg alcohol in 100 mL of blood, blood alcohol concentration at the time of driving may be calculated by adding 5 mg of alcohol in 100 mL of blood for each interval of 30 minutes in excess of the two hours.
[65] The trial judge focused this part of his analysis on Constable Halfyard’s evidence that his usual practice was to wait 30 minutes from the first call to counsel until the first breath sample was taken. The trial judge seems to have found that this was unreasonable. With respect, in my view, the trial judge asked the wrong question. The issue was not what Constable Halfyard’s usual practice was. It was whether in the circumstances of this case, the police had afforded to the respondent a reasonable opportunity speak to counsel of choice.
[66] The onus was on the respondent to establish a violation of his Charter right. In my view, the trial judge’s finding of a s. 10(b) breach because the police did not wait longer for counsel of choice to call back was in error. I reach this view because:
- The police had attempted to contact not one, but two different counsel of choice, neither of whom had returned the call;
- These events took place during the night, between 2:49 and 3:33 a.m.;
- The respondent was told that if counsel of choice returned the call, he would be afforded an opportunity to speak with them;
- When counsel of choice had not called back between 2:49 a.m. when the first call was made, and 3:17 a.m. when duty counsel called back (28 minutes later), the respondent accepted the offer made by the police to speak to duty counsel. He had a conversation with duty counsel and indicated that he understood the advice he received;
- There is no evidence that the respondent was pressured or coerced in any way to speak to duty counsel. The only evidence is that he decided to speak to duty counsel after a reasonable and practical suggestion was made by the police that his counsel might not call back. He did not testify and so there is no evidence that he subjectively felt like he had no option but to speak to duty counsel: R. v. Bukin 2021 ONSC 3347 at paras. 72-73. Nor does the record support such a finding in this case, an important factor that distinguishes the circumstances here from those in other cases such cases as R. v. Vernon, at para. 56; R. v. Doherty, 2022 ONSC 5546 at paras. 33-40;
- A total of 44 minutes passed from the time the first call was placed to counsel of choice until the first breath sample was taken: Wijesuriya, at para. 88; R. v. Wilson, 2016 ONCJ 25; Bukin at paras. 9-14;
- There is a statutory obligation on the police to take the breath sample “as soon as practicable”, which means “within a reasonably prompt time under the circumstances”: R. v. Vanderbruggen, [2006] OAC 379 (C.A.) at para. 12; Wijesuriya, at para. 89;
- By the time the first sample was taken at 3:33 a.m., the police were already at the point where waiting longer might jeopardize the Crown’s case. The evidence suggested that the collision might have been as early as 1:00 a.m. Any fair assessment of the evidence meant that the Crown could prove only that the driving was more than two hours earlier. Over the more than two hours that had elapsed since the respondent had been driving, his blood alcohol concentration was declining. While the prosecution had available to it the statutory read back provisions in s. 320.31(4), and could prosecute the case without a toxicologist, the passage of more than two hours since the driving could be proven had to be considered and the impact of the read-back provision was highly relevant.
Conclusion
[67] Given my finding that the trial judge erred in finding a s. 10(b) breach, both because the respondent made the choice to speak to duty counsel and because the respondent was afforded a reasonable opportunity to speak to counsel of choice, I need not address the issue of s. 24(2) of the Charter.
[68] The trial judge observed in his reasons that counsel for the respondent conceded “all aspects of the Crown’s case with respect to the charge of impaired and over 80”, subject to the s. 10(b) Charter application. I assume that this was a slip of the tongue, as the respondent was charged and arraigned only on one count: operating a conveyance with a blood alcohol concentration over 80 mg in 100 mL of blood. Given the respondent’s concession, it is appropriate for the order dismissing his charge to be set aside and for a conviction to be entered on this count.
[69] The respondent must be sentenced. The parties should arrange to appear before me for sentencing.
Woollcombe J. Released: March 2, 2023