DATE: 20010622
DOCKET: C35277

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) - and - JAMES HARRY LITTLEFORD (Appellant)

BEFORE: FELDMAN, MacPHERSON and SHARPE JJ.A.

COUNSEL: Richard N. Stern
For the appellant

Beverly A. Brown
For the respondent

HEARD: JUNE 7, 2001

On appeal from the summary conviction appeal by Justice Archie Campbell on October 11, 2000 dismissing an appeal from the conviction on December 8, 1999 imposed by Justice Gordon Hachborn.

E N D O R S E M E N T

[1] The appellant appeals his conviction for driving with a blood/alcohol level which exceeded 80 milligrams of alcohol in 100 millilitres of blood. The sole ground of appeal is the assertion that the appellant was denied his right to counsel in accordance with s. 10(b) of the Canadian Charter of Rights and Freedoms before he gave his breath samples which formed the basis of the conviction.

[2] The trial proceeded by defence counsel delineating for the judge three issues to be decided including the s. 10(b) issue. The Crown then called the arresting officer as the first witness. After the officer's evidence was completed, counsel informed the judge that they were prepared to proceed with submissions on the s. 10(b) issue. Although the appellant testified in his defence, he did not testify during the s. 10(b) Charter voir dire nor did he give any evidence addressing that issue.

[3] The officer testified that when he placed the appellant under arrest for impaired driving, he advised him of his right to counsel and asked him if he understood. The appellant indicated that he did and that he had his own lawyer, Mr. Cohen. At the station, the appellant was taken to the "report room" to contact his lawyer. However, the officer was the one who called the number which the appellant gave him, which was an office number. The time was 12:53 a.m. Understandably, there was no answer, and the officer left a message on what he referred to as "Mr. Cohen's service", which he later clarified as his machine. He immediately then called and left a message for duty counsel, and received a return call shortly thereafter. He explained to duty counsel that the appellant did not wish to speak with duty counsel as he believed they were only students. He also told the duty counsel that the appellant had been unable to contact his own personal lawyer.

[4] He then indicated to the appellant that duty counsel was on the phone for him, and took the appellant into the booth where he spoke with duty counsel for a little while. The appellant made no further requests to contact his own counsel and did not complain after speaking to duty counsel, but voluntarily gave the breath samples at 1:29 a.m.

[5] In cross-examination the officer agreed that beyond leaving the message on the answering machine at Mr. Cohen's office, he took no other steps to assist the appellant to try to contact Mr. Cohen. He agreed that he did not, for example, offer to look up the lawyer’s home number or provide to the appellant a room with a telephone and a telephone book in it. The officer also agreed that he placed the call to duty counsel in the face of the appellant's specific objection to speaking to duty counsel, although the appellant was misinformed about the nature of the qualifications of duty counsel.

[6] The crux of the decision by the trial judge to dismiss the appellant’s Charter application is the following finding:

I’ve been referred to some case law, which would indicate that a reasonable opportunity must be given to an accused person to retain and instruct counsel, or at least speak to a lawyer. And the cases vary because of circumstances.

And in the circumstances here, I find that Mr. Littleford was not denied his right pursuant to s. 10(b) of the Charter. He did get advice from a lawyer that was a Legal Aid duty counsel. And that seemed to satisfy him at the time.

An appeal to the summary conviction appeal court was dismissed.

[7] The appellant argues that his s. 10(b) rights were violated because he expressed the wish to speak to his own lawyer, and was not given a reasonable opportunity to do so. The basis for this submission is his assertion that after a perfunctory attempt was made by the officer to reach that lawyer, the officer immediately contacted and put the appellant in touch with duty counsel, contrary to his wishes and therefore contrary to his rights.

[8] On a Charter motion, the onus is on the accused person to prove a breach of his or her Charter rights on a balance of probabilities. The difficulty with the appellant’s position in this case is that he did speak to duty counsel before taking the breathalyzer test. He neither raised any concern at the time, nor did he testify on the voir dire to suggest that he misunderstood his rights at the time or that the conduct of the police officer affected his ability to assert those rights. The trial judge made a finding that speaking to duty counsel “seemed to satisfy him at the time.” There is no basis on the record to disturb that finding.

[9] In those circumstances, the appellant has not met the onus of proving a breach of s. 10(b) of the Charter. Leave to appeal is granted but the appeal is dismissed.

Signed: "K. Feldman J.A."

"J.C. MacPherson J.A."

"Robert J. Sharpe J.A."