Her Majesty the Queen v. Pea [Indexed as: R. v. Pea]

93 O.R. (3d) 67

Court of Appeal for Ontario,

Gillese J.A. (In Chambers)

September 22, 2008

Criminal law -- Defences -- Officially induced error -- Accused following advice of duty counsel not to give breath samples following accused's arrest for impaired driving -- Duty counsel not government official -- Defence of officially induced error not available to accused who relied on erroneous legal advice from duty counsel -- Leave to appeal denied from decision of summary conviction appeal court affirming conviction for refusing to comply with breathalyzer demand.

The accused was arrested for impaired driving and a breathalyzer demand was made. He spoke with duty counsel, who told him not to provide any breath samples. He followed that advice and was charged with refusing to comply with a breathalyzer demand. At trial, he sought a stay of proceedings based on the defence of officially induced error. The trial judge found that the defence was not available to the accused because duty counsel was not a government official. The accused was convicted, and his conviction was affirmed by the summary conviction appeal court. The accused applied for leave to appeal.

Held, the application should be dismissed.

The merits of the proposed ground of appeal in this case were weak. A government official, for the purpose of officially induced error, is an authorized representative of the state -- that is, a person with the power to speak on behalf of the government. In providing legal advice protected by solicitor- client privilege, duty counsel does not speak on behalf of the government or give official approval to conduct. Duty counsel does not become a government official simply as a result of being paid by public money or because police are obligated to facilitate a detainee's contact with duty counsel. Nor is it sufficient that the accused may have believed that duty counsel was a government official. Finally, if reliance on advice from duty counsel could constitute officially induced error, then detainees who speak to duty counsel will have available a defence that is unavailable to those who speak to privately retained lawyers. As a matter of criminal law policy, it cannot be right that some persons could avoid conviction simply because they received erroneous advice from duty counsel instead of a privately retained lawyer.

APPLICATION for leave to appeal judgment of summary conviction appeal court dismissing an appeal from conviction for refusing to comply with a breathalyzer demand.

Cases referred to R. v. R. (R.) (2008), 90 O.R. (3d) 641, [2008] O.J. No. 2468, 2008 ONCA 497, 238 O.A.C. 242, 234 C.C.C. (3d) 463, 78 W.C.B. (2d) 606, apld [page 68] Other cases referred to Lévis (City) v. Tétrault, [2006] 1 S.C.R. 420, [2006] S.C.J. No. 12, 2006 SCC 12, 266 D.L.R. (4th) 165, 346 N.R. 331, J.E. 2006-818, 207 C.C.C. (3d) 1, 36 C.R. (6th) 215, 31 M.V.R. (5th) 1, 68 W.C.B. (2d) 832; R. v. Dalley, 1957 394 (ON CA), [1957] O.J. No. 686, 8 D.L.R. (2d) 179, [1957] O.W.N. 123, 118 C.C.C. 116, 25 C.R. 269 (C.A.); R. v. Dunning, [1995] O.J. No. 646, 26 W.C.B. (2d) 494 (C.J. (Prov. Div.)); R. v. Giroux, 1981 3197 (QC CA), [1981] J.Q. no 147, J.E. 81-885, 63 C.C.C. (2d) 555, 24 C.R. (3d) 101, 12 M.V.R. 103 (C.A.), affg 1979 3035 (QC CS), [1979] J.Q. no 196, 12 C.R. (3d) 289, 55 C.C.C. (2d) 375, [1979] C.S. 1059, 5 M.V.R. 62 (S.C.) [Leave to appeal to S.C.C. refused [1981] C.S.C.R. no 58, 40 N.R. 142n, 63 C.C.C. (2d) 555n]; R. v. Jorgensen, 1995 85 (SCC), [1995] 4 S.C.R. 55, [1995] S.C.J. No. 92, 129 D.L.R. (4th) 510, 189 N.R. 1, 87 O.A.C. 1, 102 C.C.C. (3d) 97, 43 C.R. (4th) 137, 32 C.R.R. (2d) 189, 28 W.C.B. (2d) 534; R. v. Kotch, 1990 ABCA 348, [1990] A.J. No. 1029, 114 A.R. 11, 61 C.C.C. (3d) 132, 11 W.C.B. (2d) 271 (C.A.); R. v. LaChappelle, [2007] O.J. No. 3613, 2007 ONCA 655, 229 O.A.C. 206, 226 C.C.C. (3d) 518, 52 C.R. (6th) 175, 52 M.V.R. (5th) 56, 162 C.R.R. (2d) 45 Statutes referred to Canadian Charter of Rights and Freedoms, s. 10(b) Criminal Code, R.S.C. 1985, c. C-46, ss. 19, 254(5) [as am.], 839 [as am.]

David North, for applicant. David Friesen, for respondent.

[1] GILLESE J.A.: -- This is an application for leave to appeal, pursuant to s. 839 of the Criminal Code, R.S.C. 1985, c. C-46, and for a stay of a driving prohibition. If leave is granted, the appeal would decide whether duty counsel is a government official for the purpose of the defence of "officially induced error". Background

[2] In the early morning hours of February 19, 2006, the applicant was stopped at a RIDE spot cheek in Newmarket. He had alcohol on his breath and admitted to having consumed two drinks. The police read an approved screening device demand and the applicant blew into a roadside screening device. The result was a "fail". He was arrested for "over 80" and escorted to the RIDE truck, where he was cautioned, advised of his rights to counsel and read a formal breath demand.

[3] The applicant spoke privately with duty counsel who told him not to give any breath samples and "to reject the police request to do anything". The applicant then refused to give any further breath samples despite repeated requests by the police. He was charged with refusing to provide a breath sample contrary to s. 254(5) of the Criminal Code. [page 68 ]

[4] At trial, the applicant pleaded not guilty and testified in his own defence. He sought a stay of proceedings based on the defence of officially induced error.

[5] The trial judge accepted the applicant's evidence that he was advised by duty counsel not to provide a breath sample. She then considered whether the applicant had met the burden of proving, on a balance of probabilities, that there had been an officially induced error on his part. Relying on R. v. Jorgensen, 1995 85 (SCC), [1995] 4 S.C.R. 55, [1995] S.C.J. No. 92, 102 C.C.C. (3d) 97 and Lévis (City) v. Tétreault, 2006 SCC 12, [2006] 1 S.C.R. 420, [2006] S.C.J. No. 12, 207 C.C.C. (3d) 1, she identified five elements that the applicant had to prove for the defence to be available: (1) he must have considered the legal consequences of his actions and sought legal advice; (2) the legal advice must have been obtained from appropriate government officials who were involved in the administration of the law in question; (3) the legal advice must have been erroneous; (4) he must have relied on the advice; and (5) his reliance must have been reasonable. [See Note 1 below]

[6] The trial judge was satisfied that the first, third, fourth and fifth elements had been established. She explained:

The defendant sought legal advice, the legal advice provided by duty counsel was erroneous; the defendant clearly relied on this advice because he quoted it to Constable Marsh. And, finally, his reliance on the advice I find was reasonable given the fact that he is not a lawyer and was not familiar with the law.

[7] However, she concluded that the second element had not been made out because she was not satisfied that duty counsel was a government official.

[8] Although no evidence was called at trial about how the duty counsel system is organized and funded, the trial judge took judicial notice of several basic facts, including that no fee is charged to individuals who contact duty counsel.

[9] The trial judge viewed the relationship between the applicant and duty counsel to be much the same as the relationship [page 70 ]between any defendant and a privately retained or Legal Aid funded lawyer. In her view, neither the fact that police are obliged to facilitate access to duty counsel nor that duty counsel is paid by public money caused duty counsel to become a government official.

[10] The trial judge found the applicant guilty and sentenced him to pay a fine of $750. A one-year driving prohibition was also imposed.

[11] The applicant brought a summary conviction appeal. The appeal judge dismissed the appeal for reasons similar to those of the trial judge.

[12] The applicant now seeks leave to appeal to this court. For the reasons that follow, I would refuse to grant leave to appeal. Analysis

[13] Section 839 of the Criminal Code governs the availability of appeals to the Court of Appeal in summary conviction matters. [See Note 2 below] It limits such appeals to cases where a question of law alone is raised and leave is granted.

[14] In R. v. R. (R.) (2008), 2008 ONCA 497, 90 O.R. (3d) 641, [2008] O.J. No. 2468 (C.A.), this court recently considered the scope of s. 839. Justice Doherty, writing on behalf of the court, explains that access to this court on such appeals should be limited to cases in which the applicant can demonstrate some exceptional circumstance justifying a further appeal. At para. 26 of R. (R.), he writes:

There is no sensible criminal law policy that would justify more extensive rights of appeal in relatively minor criminal matters than those available in the most serious criminal cases. As the relevant provisions of the Criminal Code indicate, this court's role in the appellate process in summary conviction proceedings is similar to the role played by the Supreme Court of Canada in appellate proceedings in indictable matters. Both the parallel statutory provisions and policy dictate that this court should, in exercising its discretion to grant a second appeal in a summary conviction proceeding, adopt a similar approach to that taken by the Supreme Court of Canada on applications for leave to appeal in indictable offences. Furthermore, summary proceedings are intended to be expeditions. Routinely granting a second full appeal on the merits from the trial decision hardly furthers that goal.

[15] The applicant has raised a question of law on the proposed appeal -- namely, whether duty counsel is a government official [page 71 ]for the purpose of the defence of officially induced error. Thus, the question becomes: should leave be granted? In R. (R.), at para. 37, Doherty J.A. explained that two considerations inform this matter -- the significance of the legal issue raised to the general administration of criminal justice and the merits of the proposed grounds of appeal.

[16] The issue raised has significance beyond this specific case. However, as I explain below, the weakness of the merits of the proposed ground of appeal causes me to conclude that leave ought not to be granted.

[17] The principle that ignorance of the law is no defence has been firmly and consistently applied by the courts. [See Note 3 below] Even those who commit offences in good faith while relying on the mistaken advice of their legal counsel may not defend on the basis of ignorance of the law: see, for example, R. v. Dalley, 1957 394 (ON CA), [1957] O.J. No. 686, 118 C.C.C. 116 (C.A.), at pp. 123-24 C.C.C.; R. v. Giroux, 1981 3197 (QC CA), [1981] J.Q. no 147, 63 C.C.C. (2d) 555 (C.A.), at p. 561 C.C.C., leave to appeal to S.C.C. refused [1981] C.S.C.R. No. 58, 63 C.C.C. (2d) 555n; R. v. Kotch, 1990 ABCA 348, [1990] A.J. No. 1029, 61 C.C.C. (3d) 132 (C.A.), at p. 138 C.C.C.

[18] The inflexibility of this rule causes concern, however, when a person acts as a result of an error of an "authorized representative of the state" and the state then demands that the criminal law he applied strictly to punish the person for his or her conduct. [See Note 4 below] In such a case, the fundamental fairness of the criminal process would appear to be compromised. Consequently, the law has recognized the defence of officially induced error which, if proved by the accused on a balance of probabilities, entitles the accused to a stay of the charges. [See Note 5 below]

[19] Like the trial judge and the summary conviction appeal judge, I see the solicitor-client relationship between duty counsel and a detainee to be very similar to the relationship between a privately retained lawyer and a detainee. In that regard, I agree with the emphasis that the judges below placed on the fact that a detainee's conversation with duty counsel is protected by the same solicitor-client privilege as that which governs other solicitor-client relationships.

[20] In Lévis [at para. 22], the Supreme Court described a government official, for the purpose of officially induced error, as "an [page 72 ]authorized representative of the state" -- that is, a person with the power to speak on behalf of the government. In providing legal advice protected by solicitor- client privilege, duty counsel does not speak on behalf of the government or give official approval to conduct. Rather, duty counsel offers the detainee legal options and advice based on the available information. Far from being "an authorized representative of the state", duty counsel is an independent source of legal assistance in the detainee's confrontation against the state. Even the physical requirements emphasize this differentiation in that a detainee's consultation with duty counsel must be confidential and take place in private, away from the eyes and ears of the police.

[21] Further, like the judges below, I do not accept that the duty counsel becomes a "government official" simply as a result of being paid by public money or because police are obligated to facilitate a detainee's contact with duty counsel. Those factors do not diminish the fundamental nature of the relationship that exists between the detainee and duty counsel.

[22] Nor do I think it is sufficient that the accused may have believed that duty counsel was a government official. Assuming that a mistaken belief that a person has the power to speak on behalf of the state may suffice, that mistake must be reasonable in all of the circumstances. That is, it is not sufficient to conduct a purely subjective analysis when determining whether the elements of the defence have been made out. In para. 27 of Lévis, the Supreme Court states that it is necessary to establish the objective reasonableness of the advice and reliance on the advice. Similarly, in my view, when assessing the position and role of the person who gave the information or advice to decide whether that person was an "authorized representative of the state", it is not sufficient to take a purely subjective approach. That assessment must also be considered from the perspective of a reasonable person in a situation similar to that of the accused. In the circumstances of this case, I do not see a reasonable person in the applicant's position as viewing the duty counsel as an authorized representative of the government. Even a naive detainee should recognize that duty counsel is not speaking on behalf of the state.

[23] A further consideration is significant. If reliance on advice from duty counsel could constitute officially induced error, then detainees who speak to duty counsel will have available a defence that is unavailable to those who speak to privately retained lawyers. If mistake of law is not a valid defence for those who rely on the erroneous advice of privately retained lawyers, it does not make sense that those who receive the same advice from [page 73 ]duty counsel should be afforded an exception to the rule that ignorance of the law is no defence. As a matter of criminal law policy, it cannot be right that some persons could avoid conviction simply because they received erroneous advice from duty counsel instead of a privately retained lawyer.

[24] I note, as well, that other courts have considered and expressly rejected the proposition that duty counsel might be a government official for the purposes of the defence: see, for example, R. v. Dunning, [1995] O.J. No. 646, 26 W.C.B. (2d) 494 (C.J. (Prov. Div.)), at para. 57, and R. v. Giroux, 1979 3035 (QC CS), [1979] J.Q. no 196, 55 C.C.C. (2d) 375 (S.C.), at p. 383 C.C.C., [affd (Que. C.A.), leave to appeal to S.C.C. refused, supra].

[25] Finally, while this court has indicated that it is an open question whether a detainee's s. 10(b) [of the Canadian Charter of Rights and Freedoms] right to counsel is violated if he or she is not given competent advice by a duty counsel, [See Note 6 below] as the Crown points out, such an issue cannot properly be raised on appeal. As it was not raised at trial, no adequate evidentiary record exists on which to decide the issue.

[26] In light of these considerations and Doherty J.A.'s clear statement on behalf of the court that "a second appeal in summary conviction proceedings should be the exception and not the rule", I decline to grant leave. Disposition

[27] Accordingly, the applications for leave to appeal and a stay of the driving prohibition are dismissed.

Application dismissed.

Notes

Note 1: The elements were described somewhat differently in Lévis, at para. 26. No issue has been taken with the trial judge's formulation, however, which tailored the elements to the case before her.

Note 2: Section 839(1) reads in part as follows: "[A]n appeal to the court of appeal as defined in section 673 may, with leave of that court or a judge thereof, be taken on any ground that involves a question of law alone . . ."

Note 3: Section 19 of the Criminal Code states, "Ignorance of the law by a person who commits an offence is not an excuse for committing that offence."

Note 4: Lévis, at para. 22.

Note 5: Lévis, at paras. 22, 25.

Note 6: R. v. LaChappelle, 2007 ONCA 655, [2007] O.J. No. 3613, 226 C.C.C. (3d) 518 (C.A.), at para 44.