CITATION: R. v. Van Binnendyk, 2007 ONCA 537

DATE: 20070725

DOCKET: C46445

COURT OF APPEAL FOR ONTARIO

WEILER, GILLESE and LAFORME JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

And

DAVID VAN BINNENDYK

Appellant

Paul Burstein for the appellant

Andrew Cappell for the respondent

Heard: July 23, 2007

On appeal from the summary conviction appeal decision of Justice Thomas A. Heeney dismissing the appeal against conviction entered on April 30, 2004, by Justice Eleanor M. Schnall of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant was charged with driving while impaired and driving “over 80”. At the time of his arrest for drinking and driving offences, and again at his booking, the police informed the appellant of his right to counsel and to free and immediate legal advice through the Legal Aid service. On both occasions, the appellant told the police that his lawyer was Anthony Bryant and that he was “not accepting anyone else”. He had no telephone number for Mr. Bryant.

[2] The police searched for and obtained an office telephone number for Mr. Bryant. They called the number and, when no one answered, left a message advising that the London Police Services was calling, that the appellant was in custody awaiting a breath sample and wished to speak to Mr. Bryant before doing so. A number was left for Mr. Bryant to call back.

[3] After waiting approximately an hour and receiving no return call from Mr. Bryant, the police brought the appellant back into the cell area and told him that no return call had been received. They asked the appellant whether he wished to call another lawyer. He declined again saying “Tony Bryant is my lawyer”. The appellant was then told that if he changed his mind and wanted another lawyer he had only to let the police know and it would be arranged.

[4] Two breath tests were taken shortly thereafter during which the appellant never made any mention of wanting to speak with a lawyer. Both readings were over 80.

[5] At trial, the appellant sought to have the results of the breathalyzer tests excluded on the basis that the police had violated his s. 10(b) Charter rights. The trial judge dismissed the application and convicted the appellant of driving “over 80”.

[6] In so doing, the trial judge referred to the appellant’s evidence that he did want any lawyer other than his lawyer of choice, and that “under no circumstances would any other service have been appropriate”. Given that, the trial judge concluded that there would have been no point in the police handing him a telephone book or directing him to the Legal Aid list. In these circumstances, the trial judge found that the appellant had not been reasonably diligent in exercising his right to counsel and thus no breach of his Charter rights had occurred.

[7] The appellant appealed. The three-year prohibition was stayed pending the hearing of the appeal. The summary conviction appeal judge dismissed the appeal.

[8] The appellant seeks leave for a further appeal to this court. He submits that the courts below erred in the analytical approach taken to the question of whether the appellant’s s. 10(b) Charter rights had been violated. We disagree.

[9] Like both courts below, we are of the view that this case is very similar to R. v. Richfield (2003), 2003 52164 (ON CA), 178 C.C.C. (3d) 23 (Ont. C.A.). Again, like the courts below, we rely on the reasoning in Richfield, particularly at para. 6: a person detained by the police must be provided with a reasonable opportunity to exercise the right to counsel and, except in cases of urgency or danger, the police must refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity. The detained or arrested person who is offered the opportunity to contact counsel and asserts his right to a “particular counsel” must, however, exercise that right diligently.

[10] While an accused person has a right to his or her counsel of choice, that right is not absolute. If the lawyer chosen is not available within a reasonable amount of time, the accused person will be expected to exercise the right to counsel by calling a different lawyer: Richfield, para. 7.

[11] The appellant had the onus of proving on a balance of probabilities that his s. 10(b) Charter rights had been violated. The appellant’s onus was to prove that his right to retain and instruct counsel without delay, and to be informed of that right, was breached. In discharging that onus, the appellant had to prove as well that he acted with reasonable diligence in the exercise of his right to choose counsel.

[12] The findings of the trial judge, as confirmed by the summary conviction appeal judge, are solidly grounded in the evidence: the appellant did not make reasonably diligent efforts in exercising his right to counsel.

[13] Here, the police informed the appellant about Legal Aid duty counsel, they attempted to contact his counsel of choice and they repeatedly offered to contact a different lawyer if he changed his mind. The appellant refused all these efforts insisting that he would only speak with his counsel of choice. In this context, including the findings of the trial judge that the police discharged their duty, the appellant did not prove that he acted with reasonable diligence or that his s. 10(b) Charter rights had been violated.

[14] In the circumstances of this case and in view of the findings of the trial judge, the discrete issue of waiver of the appellant’s Charter rights does not arise. We also observe that the issue of waiver was never raised at trial or on the summary conviction appeal. It was raised for the first time on this appeal.

[15] In light of our conclusion on the issue of reasonable diligence, it is unnecessary to address s. 24 (2) of the Charter.

[16] The courts below committed no error. Accordingly, while leave to appeal is granted, the appeal is dismissed.

“K. M. Weiler J.A.”

“E. E. Gillese J.A.”

“H. S. LaForme J.A.”