Court of Appeal for Ontario

Date: 2004-02-10 Docket: C39484

Between:

Her Majesty the Queen

Appellant

• and -

David Burley

Respondent

Before: McMURTRY C.J.O., ABELLA and BLAIR JJ.A.

Counsel: Feroza Bhabha, for the appellant David M. Humphrey, for the respondent

Heard: January 16, 2004

On appeal from the acquittal by Justice Hubert J. Campbell of the Ontario Court of Justice dated January 8, 2003.

Reasons for Decision

McMURTRY C.J.O.:

[1] The respondent, David Burley, was charged with one count of impaired driving causing bodily harm and one count of driving "over eighty". He pleaded not guilty.

[2] At trial, the defence brought a successful application to exclude the results of breath samples under s. 24(2) of the Charter on the basis that his right to counsel under s. 10(b) had been infringed. The trial judge found that the respondent's Charter rights had been breached and accordingly made an order, under s. 24(2) of the Charter, excluding all evidence which followed the breach, which included the breath sample readings taken from the respondent. As a result, the respondent was acquitted on both counts.

[3] The central issue on the Charter application was whether the respondent was able to effectively exercise his right to counsel given the level of privacy he was afforded in the particular hospital setting.

[4] For the reasons outlined below, I am of the view that the appeal should be allowed.

THE FACTS

[5] The respondent was involved in an automobile accident in which he lost control of the vehicle he was driving, causing it to turn over in a ditch. The other occupants of the car were his seven year old son and the eight year old daughter of a family friend. The young boy was the most severely injured of the three occupants and had to be transported to the Hospital for Sick Children. The respondent complained of back pain and was taken to the hospital by the arresting officer as he did not want to ride in the ambulance.

[6] A police officer and a civilian at the scene both testified that there was a strong odour of alcohol on the respondent's breath and other signs of inebriation. The respondent admitted to having consumed alcohol before the accident. The respondent was arrested and read his rights. The arresting officer asked whether the respondent would like to call a lawyer or legal aid, to which the respondent responded in the affirmative. The respondent was taken to the hospital where he was given an opportunity to contact legal aid counsel.

[7] In order to make a phone call to counsel, the respondent was taken into a small ambulance attendant room which had a desk and two chairs. There was a telephone in the room. There was conflicting evidence as to whether there was a door to the room but the respondent testified that he did recall a door.

[8] The respondent contacted duty counsel at 7:00 p.m. and at 7:08 p.m. duty counsel called back. He was left alone in the room, and was told that the call would be private and that the officer would not be within earshot. The officer stood approximately 20 feet away down the hallway. The officer testified that he maintained a line of sight to the doorway of the room but could not see or hear the respondent.

[9] The respondent testified that he was not comfortable while speaking to duty counsel as he saw an elbow in the doorway, clothed in a blue or black jacket and that he thought it was a police officer. As a result, he felt uncomfortable, constantly moving the phone away from his ear to check the location of the police officer. As a result, the respondent did not believe that he had had an adequate consultation with duty counsel.

[10] The respondent remained in the room for nine minutes and he spoke with counsel for five to six minutes. A breath sample was taken after his conversation with duty counsel. At no time did the respondent make any complaint that he was unable to effectively consult with counsel because of his worry that his call could be overhead by the police officer. The respondent also testified that both of the officers he had contact with treated him in a courteous manner and that the breathalyser officer was "super".

[11] The respondent testified that he gave the breath sample because he knew that he was required by law to do so but declined to answer questions because he knew his legal rights in that regard.

RULING OF TRIAL JUDGE

[12] The trial judge found that the arresting officer had acted in a "commendable fashion" in bringing the respondent to the hospital and that there was "absolutely no fault" with what the officer did in the circumstances. He accepted the officer's evidence that he was not within earshot of the respondent and that he had told the respondent that his conversation with duty counsel would be made in private. The trial judge further stated that "I don't know what else he [the officer] could have done".

[13] The trial judge, however, found that the hospital hallway was busy and stated:

[The respondent] was of the view that the police were directly behind him. In any event it is hard to conceive how anyone could feel that he was having a conversation in private with his counsel. There was nothing private about the situation. It would be like consulting a lawyer in the hallways of the Oshawa Centre.

[14] There was, however, no evidence before the trial judge to support his comparison with the Oshawa Centre and the respondent did not suggest in his evidence that the traffic in the hospital corridor in any way interfered with his ability to communicate with counsel, other than the appearance of the elbow in the doorway.

[15] The trial judge concluded that the respondent was not afforded the opportunity to have a private conversation with counsel and that his s. 10(b) rights were infringed as a result.

[16] The Crown submits that in assessing whether or not there had been a s. 10(b) violation in this case, the trial judge misapplied the legal test by placing undue weight on the respondent's subjective and unreasonable belief that the call was not in private. The case law does not require the police to facilitate communication with counsel in ideal conditions. Instead, the duty is to provide an opportunity to contact a lawyer within a reasonable time, with the privacy that a detainee would reasonably require in order to consult with a lawyer.

[17] The Crown also submits the police have the additional duty of maintaining control over someone suspected of a criminal offence. In the circumstances of this case, and given the situation that evening, objectively viewed, the Crown asserts that privacy afforded to the respondent was more than adequate and the respondent's right to counsel was therefore not infringed.

[18] The respondent, on the other hand, submits that the trial judge reasonably concluded that, on the facts found by him, there had been an infringement of the respondent's right to consult counsel in private. This was essentially a finding of fact and there is no basis for appellate interference with that finding as it does not reflect "any palpable or overriding error".

ANALYSIS

[19] In R. v. Playford (1987), 40 C.C.C. (3d) 142, Goodman J.A. stated as follows at p.158:

An accused person who believes that his conversation will be overheard by the police, will, of course, be substantially prejudiced in making use of his right to retain and instruct counsel. That does not mean, of course, that every accused who has such belief no matter how unreasonable, can assert that his right to retain and instruct counsel has been infringed.

[20] The issue of adequate privacy in a hospital context was considered by O'Connor J. in R. v. Turiff (1998) 82 O.T.C. 180. In that case, the police arrested the accused for impaired driving causing bodily harm. After indicating that he wished to speak to counsel, he was taken to a hospital and left in a wheelchair at a telephone in a hospital hallway. Two arresting officers were present and they retreated some 30 feet down the hall. The accused spoke with duty counsel for approximately nine minutes while medical staff and others made use of the hallway. The trial judge also noted that at no time did the accused wave the officers away or in any way indicate to them that his privacy was violated.

[21] The finding of the trial judge in Turiff that the s. 10(b) Charter rights of the accused had not been proven was upheld by this court. O'Connor J. also quite properly noted that the individual factual context must be considered in each case. However, his conclusion suggests that in considering the reasonableness of an accused's concern about a lack of privacy in the particular circumstances an accused should be reasonably expected to make his concerns known to any police officer present.

[22] The issue as to whether a degree of diligence on the part of an accused should be expected in relation to consulting counsel was discussed in the Supreme Court of Canada decision of Bartle v. The Queen, 92 C.C.C. (3d) 289. This decision decided that the accused's s. 10(b) rights had been infringed when he was not advised of the availability of legal aid duty counsel. However, Lamer C.J.C. states as follows at p. 301:

Importantly, the right to counsel under s. 10(b) is not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended. [emphasis added]

[23] The requirement of at least a reasonable degree of diligence on the part of an accused was also referred to by this court in R. v. Richfield, 178 C.C.C. (3d) 23 where Weiler J.A. stated at para 7:

Whether legal advice has been sought diligently by the detained person depends on the situation.

At para. 8, she again refers to the expectation that the accused will exercise reasonable diligence in exercising the right to counsel.

[24] In my view, in considering whether there has been a s. 10(b) breach related to the absence of reasonable privacy in consulting counsel, one must examine the totality of the circumstances.

[25] In this case, the respondent was informed of his right to counsel and he did speak to duty counsel while alone in a room. He had a good rapport with the only officer present during the call and was told by that officer that he would not be standing within earshot. The respondent spoke to counsel for five to six minutes. At no time did he suggest to the officer present that he was concerned about his privacy. He did not ask that the door be closed or that he be given an opportunity to make a second call.

[26] The facts in this appeal are similar to the facts of this court in R. v. Cairns, [2004] O.J. No. 210 which was released on January 28, 2004. In Cairns, the appellant was informed of her right to counsel and was provided the opportunity of speaking alone with duty counsel in a room. She spoke with duty counsel for several minutes and gave no indication that her conversation was not private or that her conversation with duty counsel was inhibited.

[27] In Cairns, the trial judge did not find any breach of s. 10(b) of the Charter. In dismissing the appeal, the court at para. 10 stated as follows:

It is the appellant who bears the burden of establishing on the balance of probabilities that her Charter right has been violated. In cases where there is no actual invasion of privacy, there may still be a breach of s. 10(b) where the accused establishes that he or she believed that he or she could not retain and instruct counsel in private and further, that such a belief was reasonably held in the circumstances.

CONCLUSION

[28] In my view, the evidence before the trial judge was not capable of supporting the trial judge's conclusion that there had been a s. 10(b) Charter breach. The belief of the respondent that he could not retain and instruct counsel in private was not reasonable in the circumstances.

[29] In the result, the appeal is allowed and a new trial ordered.

RELEASED: Feb. 10, 2004 "RRM"

"R. Roy McMurtry C.J.O."

"I agree. R. S. Abella J.A."

"I agree. R. A. Blair J.A."