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

95 O.R. (3d) 721

Court of Appeal for Ontario,

Doherty, R.P. Armstrong and Juriansz JJ.A.

June 12, 2009

Charter of Rights and Freedoms -- Right to counsel -- Informational component -- Officer stopping accused after observing erratic driving and then observing signs of impairment -- Arresting officer informing accused at roadside of right to counsel including right to free legal advice from duty counsel "right now" and asking if accused wished to call lawyer "now" -- Accused saying "no" and officer not giving further advice about right to counsel when they arrived at police station -- Accused's right to counsel not infringed -- Use of word "now" in roadside s. 10(b) caution not implying that detainee has to speak to counsel at roadside -- "Now" properly conveying detainee's right to speak to counsel "without delay" -- Officer not required to inform detainee that contact with counsel will occur at police station -- Although not necessarily required to re-advise accused of s. 10(b) at police station it would be preferable practice -- Canadian Charter of Rights and Freedoms, s. 10(b).

The accused was charged with driving "over 80". In advising the accused of her right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms at the roadside, the arresting officer told her of the availability of free legal advice from duty counsel "right now" and asked her if she wished to call a lawyer "now". The accused replied, "No". The officer did not provide any further information about her right to counsel when they arrived at the police station. At trial, the accused testified that she wasn't given her right to counsel at any point and sought to exclude the breathalyzer results pursuant to s. 24(1) of the Charter based on this alleged breach of her s. 10 right. The trial judge found that the accused's right to counsel was not infringed. The accused was convicted. The summary conviction appeal court judge allowed her appeal, holding that the arresting officer was required to expressly advise the accused that contact with counsel would be made at the police station and not at the roadside. The Crown appealed.

Held, the appeal should be allowed.

This was an appropriate case in which to grant leave from the summary conviction appeal as this issue will affect hundreds of other cases, there were conflicting lower court decisions and there was no appellate authority directly on point.

Compliance with s. 10(b) of the Charter does not necessarily require the officer to inform the detainee that, should she choose to contact counsel, contact will occur when she is taken to the police station. The use of the word "now" in the context of the administration of the s. 10(b) caution at the roadside is not misleading. A detainee has a constitutional right to consult counsel "without delay". The language used by the police suggests that the right to speak with a lawyer only arises at some point later on in the detention. Should a roadside detainee wish to speak with a lawyer "without delay", she must be afforded an opportunity to do so. Depending on the circumstances, consultation with counsel "without delay" may require a telephone call at the roadside, at the police station or, perhaps in very unusual cases, somewhere else, but those issues pertain to the [page722] implementational requirements of s. 10(b) and this case turned in the courts below solely on the informational component of the right. The key point to be conveyed regarding s. 10(b) is the detainee's right to get immediate access to a lawyer, including through the toll-free number to immediate free Legal Aid. There is value in the use of a standardized s. 10(b) caution which complies with the informational requirements established in the Supreme Court of Canada jurisprudence and it is fruitless to attempt to find some formulation that will never be found to have misled someone.

Where a detainee has been properly cautioned at the roadside and has indicated that she does not wish to speak with a lawyer, failure to re-advise her of her right to counsel at the police station does not necessarily constitute a breach of s. 10(b). However, it would be a much better practice for the police to reiterate the right to counsel upon arrival at the police station.

APPEAL from the order of Lalonde J. of the Superior Court of Justice dated November 13, 2008 allowing an appeal from conviction for driving over 80.

Cases referred to R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, [1994] S.C.J. No. 74, 118 D.L.R. (4th) 83, 172 N.R. 1, J.E. 94-1528, 74 O.A.C. 161, 92 C.C.C. (3d) 289, 33 C.R. (4th) 1, 23 C.R.R. (2d) 193, 6 M.V.R. (3d) 1, 24 W.C.B. (2d) 539; R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190, [1990] S.C.J. No. 8, 103 N.R. 282, [1990] 2 W.W.R. 220, J.E. 90-315, 71 Alta. L.R. (2d) 145, 104 A.R. 124, 53 C.C.C. (3d) 330, 74 C.R. (3d) 129, 46 C.R.R. 236, 9 W.C.B. (2d) 233; R. v. Galbraith, 2005 CanLII 8691 (ON SC), [2005] O.J. No. 1120, [2005] O.T.C. 210, 129 C.R.R. (2d) 169, 64 W.C.B. (2d) 405 (S.C.J.); R. v. Leedahl, [2002] S.J. No. 14, 2002 SKCA 5, 213 Sask. R. 235, 24 M.V.R. (4th) 188, 52 W.C.B. (2d) 435, consd Other cases referred to R. v. Baig, 1987 CanLII 40 (SCC), [1987] 2 S.C.R. 537, [1987] S.C.J. No. 77, 45 D.L.R. (4th) 106, 81 N.R. 87, J.E. 88-7, 25 O.A.C. 81, 37 C.C.C. (3d) 181, 61 C.R. (3d) 97, 32 C.R.R. 355, 3 W.C.B. (2d) 135; R. v. Dean, [2008] O.J. No. 5498, 2008 ONCJ 702; R. v. Kennedy, 1995 CanLII 9863 (NL CA), [1995] N.J. No. 340, 135 Nfld. & P.E.I.R. 271, 103 C.C.C. (3d) 161, 19 M.V.R. (3d) 24, 29 W.C.B. (2d) 241 (C.A.); R. v. Phonprasith, [2006] O.J. No. 5293 (C.J.); R. v. R. (R.) (2008), 90 O.R. (3d) 641, [2008] O.J. No. 2468, 2008 ONCA 497, 238 O.A.C. 242, 59 C.R. (6th) 258, 234 C.C.C. (3d) 463, 78 W.C.B. (2d) 606; R. v. S. (C.J.), [2006] O.J. No. 2117 (C.J.); R. v. Sihanath, [2007] O.J. No. 5335, 2007 ONCJ 665, 76 W.C.B. (2d) 423; R. v. Woldegzi, [2006] O.J. No. 4302, 2006 ONCJ 392, 39 M.V.R. (5th) 256, 71 W.C.B. (2d) 659 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 10(b), 24(2)

Jennifer Woollcombe, for applicant (appellant). Ian Carter, for respondent.

The judgment of the court was delivered by

DOHERTY J.A.: -- [page723] I. The Issue

[1] This appeal concerns the informational component of the right to counsel as described in s. 10(b) of the Canadian Charter of Rights and Freedoms. The parties have framed the issue in this way:

Is a police officer who arrests an individual at the roadside on an impaired driving charge required, when advising that person of the right to counsel, to tell the detainee that should he or she choose to consult counsel, that consultation will occur at the police station and not at the roadside?

[2] For the reasons that follow, I would hold that compliance with s. 10(b) does not necessarily require the officer to inform the detainee that should he or she choose to contact counsel, that contact will occur when the detainee is taken to the police station. II. Overview and Facts

[3] The respondent was convicted on one count of "blowing over" and one count of impaired driving. The latter charge was stayed. On appeal, the summary conviction appeal court allowed the appeal and ordered a new trial on both counts. The Crown seeks leave to appeal to this court and, if leave is granted, seeks an order restoring the conviction.

[4] A police officer observed the respondent driving somewhat erratically. He pulled her over and immediately noticed several indicia of impairment. The police officer arrested the respondent and advised her of her right to counsel under s. 10(b) of the Charter. I will return to the exact words he used later in these reasons. The officer testified that the respondent said that she did not want to call a lawyer. The police officer gave the respondent a secondary caution advising her of the charge and affording her the opportunity to make a statement. He then made a breath demand. The officer took the respondent to the local OPP detachment. She was not given any further advice about her right to counsel. Two breathalyzer tests produced readings of .160.

[5] The respondent raised only one defence at trial. She argued that she was not given her right to counsel as required by s. 10(b) of the Charter and that the evidence of the breathalyzer results should be excluded pursuant to s. 24(2) of the Charter. The trial judge rejected this argument finding that the officer had complied with s. 10(b) and that the respondent had made an informed decision not to consult with counsel.

[6] The summary conviction appeal court judge (the "Appeal Judge") took a different view of the scope of an officer's obligation [page724] under s. 10(b) when informing a person detained at the roadside of his or her right to counsel. The Appeal Judge concluded that the officer was required to advise the respondent of all legal services or information available to her at the police station and to expressly advise the respondent that contact with counsel would be made at the police station and not at the roadside. The Appeal Judge said, at para. 20 of his reasons:

The informational component of section 10(b) was not met in the case at bar. The appellant was also asked if she wanted to speak to counsel on a non-existing phone at the roadside. The appellant should have been told in no uncertain terms at the roadside that upon arrival at the police station a phone and a list of callers would have been made available to her if she so chose. This was not done and the police breached her s. 10(b) rights to call counsel before taking the breath test. (Emphasis added)

[7] The Appeal Judge's reference to "a list of callers" was a reference to a list of lawyers' phone numbers that may have been available at the police detachment to which the respondent was taken. The evidence as to the availability of this list and its currency was somewhat unclear. It is unnecessary to go into that evidence as counsel for the respondent, correctly in my view, does not contend that on this record he can argue that the police officer was obliged under s. 10(b) to advise the respondent that a list of lawyers' telephone numbers could be made available to her at the police station. The only issue before this court is whether the Appeal Judge correctly held that the police officer was obliged, when informing the respondent of her s. 10(b) rights, to tell the respondent that should she choose to speak with a lawyer, that consultation would take place at the police station and not at the roadside. III. Should Leave to Appeal be Granted?

[8] This court's approach to applications for leave to appeal in summary conviction matters is set out in R. v. R. (R.) (2008), 2008 ONCA 497, 90 O.R. (3d) 641, [2008] O.J. No. 2468 (C.A.). The question of law raised on this application concerns the nature of the information a police officer must provide a detainee to comply with s. 10(b) of the Charter where the police officer arrests the detainee at the roadside and proposes to return him or her to the police station before providing the detainee with an opportunity to speak with counsel. The legal issue goes to the proper interpretation of a constitutional entitlement. The fact situation in which the issue arises is a very common one that will occur in hundreds of cases. A decision by this court on the proper meaning of s. 10(b) in this factual context could impact [page725] on many other cases. There are conflicting decisions in the lower courts [See Note 1 below] and there is no appellate authority directly on point. [See Note 2 below]

[9] Counsel for the respondent does not argue that this is an inappropriate case in which to grant leave to appeal. I am satisfied that the resolution of the issue raised on this application is important to the administration of justice, and that there is sufficient merit in the Crown's argument to warrant granting leave to appeal. I would do so. IV. The Evidence Relating to s. 10(b) of the Charter

[10] The arresting officer, Constable Large, testified that after he stopped the respondent, he quickly formed the opinion that she was impaired. He handcuffed her and put her in the rear of his vehicle advising her that she was under arrest for impaired driving. He decided not to search the respondent until a female officer arrived.

[11] At 1:14 a.m., he read the respondent her s. 10(b) rights as set out in his notebook. The officer told her:

I'm arresting you for impaired driving. It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a Legal Aid lawyer. If you are charged with an offence you may apply to the Ontario Legal Aid Plan for assistance. 1-800-265-0451 is a toll-free number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice right now. Do you understand? (Emphasis added) [page726]

[12] Constable Large indicated that the respondent replied, "Yeah". He then asked her:

Do you wish to call a lawyer now? (Emphasis added)

[13] The respondent replied, "No".

[14] Constable Large arrived back at the detachment with the respondent at 1:36 a.m., about 20 minutes after advising her of her s. 10(b) rights. He explained that since the respondent had said she did not want to consult with counsel, there was no further discussion about counsel once they arrived back at the station.

[15] On cross-examination, Constable Large testified that he was aware that the respondent had a cellphone with her in the car. He testified, however, that there was no cellphone reception at the location where he stopped the respondent. Had she wanted to consult with counsel, he would have made that opportunity available to her when they got back to the detachment. In his mind, making a phone available at the detachment would have complied with the requirements of s. 10(b). He did not tell the respondent that any consultation with a lawyer would occur back at the police station and not at the roadside.

[16] Constable Large's evidence became somewhat confusing on cross-examination. He conceded that the respondent did not initially understand some of the information he gave her and that he had to repeat it for her.

[17] The respondent testified that Constable Large did not advise her of her right to counsel. She testified that he asked her if there was anyone she wanted to call and that she replied that she would like to call her roommate, Amanda. The following exchange occurred during the respondent's examination-in-chief: Q. What about, "Do you want to call a lawyer right now." Do you ever recall him saying, or did you hear him say that to you? A. I did not hear that. Q. Right. If you had heard that what would you have said? A. I would have liked to call a lawyer. V. The Reasons Below

[18] In his ruling, the trial judge found that Constable Large advised the respondent of her right to counsel, that he asked her if she wanted to contact a lawyer and that the respondent told Constable Large that she did not want to consult with counsel. The trial judge concluded that the officer had no obligation to further advise the respondent of her right to counsel once they [page727] arrived at the police station in light of her indication at the roadside that she did not wish to speak with a lawyer.

[19] The Appeal Judge did not take issue with the trial judge's findings of fact. Relying on Galbraith, the Appeal Judge held that Constable Large's offer to permit the respondent to contact counsel "right now" was meaningless, if not misleading, in that the officer would not have afforded the respondent the opportunity to contact counsel until they arrived back at the police detachment. The Appeal Judge found that in order for the respondent to make an informed decision as to whether to consult with counsel, it was essential that Constable Large tell her that the opportunity to consult with counsel would be afforded at the detachment and not at the roadside where she was advised of her right to counsel. The Appeal Judge concluded that the information provided to the respondent could have misled her into believing that if she wanted to speak with a lawyer, she had to do so at the roadside in the police cruiser. VI. Analysis

[20] Section 10(b) of the Charter provides:

10. Everyone has the right on arrest or detention . . . . . (b) to retain and instruct counsel without delay and to be informed of that right;

[21] Section 10(b) contains two distinct rights. First, it obligates the police to inform a detainee of his or her right to speak with a lawyer without delay. Second, it guarantees the right of a detainee to retain and instruct counsel. If a detainee chooses to exercise that right, the police must provide the detainee with a reasonable opportunity to do so and must refrain from further questioning the detainee or otherwise eliciting evidence from the detainee until he or she has had a reasonable opportunity to consult with counsel: R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, [1994] S.C.J. No. 74, at pp. 191-92 S.C.R. This appeal involves the first of the requirements outlined above, commonly known as the informational component of s. 10(b). As indicated above, it places the burden on the police to inform the detainee of the right to counsel guaranteed to the detainee by s. 10(b).

[22] The informational component of s. 10(b) has two parts. The first is apparent in the language of the section, while the second is a product of the jurisprudence. Section 10(b) expressly requires that the detainee be told of his or her right to retain and instruct counsel without delay. In [page728] R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190, [1990] S.C.J. No. 8, at p. 206 S.C.R., the Supreme Court of Canada extended the informational component of s. 10(b) to include the requirement that the detainee must be informed of the existence and availability of duty counsel and Legal Aid. In Bartle, at p. 198 S.C.R., the court explained that Brydges must be read as requiring the authorities to inform detainees about the availability of counsel through Legal Aid and the availability of immediate free legal advice to everyone through duty counsel services, assuming those services exist in the jurisdiction. In reference to the right to access immediate free legal advice, Lamer C.J.C. said, at p. 198 S.C.R.:

. . . I would add here that basic information about how to access available services which provide free, preliminary legal advice should be included in the standard s. 10(b) caution. This need consist of no more than telling a detainee in plain language that he or she will be provided with a phone number should he or she wish to contact a lawyer right away.

[23] The requirement that all detainees must be told of the existence and means of accessing duty counsel and Legal Aid gives the constitutional right to counsel found in s. 10(b) real meaning. The right would be hollow for those unaware of how they might obtain immediate legal assistance if they were given no information by the authorities as to how to access legal assistance. Nor, given the dynamics at play in a detention situation, should the onus be on the detainee to make inquiries as to how he or she might exercise the constitutional right to counsel. Brydges and Bartle ensure that all detainees have sufficient information to make an informed decision as to whether to speak with counsel before submitting to police interrogation or testing.

[24] Constable Large complied with the specific requirements of the informational component of s. 10(b) described in Brydges and Bartle. He told the respondent that -- she could retain and instruct counsel without delay; -- she could telephone any lawyer she wanted to telephone; -- she had the right to access immediate free legal advice via the toll-free number given to her by Constable Large; and -- if charged with an offence, she could apply through the Legal Aid Plan for legal assistance in defending against the charge.

[25] Counsel for the respondent, in his able argument, submits that Bartle offers direct support for his contention that in addition to the information summarized in the immediately preceding paragraph, the respondent should have been told that she [page729] would be allowed to contact counsel at the police detachment and not at the roadside should she choose to exercise her right to counsel. Counsel for the respondent relies on two passages from the reasons of the Chief Justice, at pp. 202-203 S.C.R.:

In my opinion, the s. 10(b) caution that the appellant received, both at the roadside and at the police station, failed to convey the necessary sense of immediacy and universal availability of legal assistance. First, when the appellant was arrested at the roadside, he was not told of the existence of the 1-800 number for duty counsel and that he would be allowed to call a lawyer as soon as he arrived at the police station where there were telephones. Although it was subsequently made clear upon arrival at the station that he could call "now", the appellant had, in the intervening period between detention at the roadside and arrival at the station, made a self-incriminating statement. . . .

The 1-800 number, or at least the existence of a toll-free telephone number, should have been conveyed to the appellant upon his arrest at the roadside even though there were no telephones available. Indeed, the police should have explained to the appellant that, as soon as they reached the police station, he would be permitted to use a telephone for the purpose of calling a lawyer, including duty counsel which was available to give him immediate, free legal advice. (Emphasis added)

[26] These passages must be understood in the context of the facts of Bartle and the deficiencies in the s. 10(b) caution given by the police officer in that case. In Bartle, the arresting officer at the roadside did not tell the detainee of the availability of immediate legal advice through the 24-hour toll-free Legal Aid number. He also did not ask the detainee if he wished to call a lawyer "now". Nor did the officer use any other language that would indicate to the detainee that he could access free legal advice without delay. In fact, the officer explained in his testimony that he did not ask the detainee if he wanted to contact a lawyer "now" because there was no telephone at the roadside where the officer gave the detainee his rights under s. 10(b).

[27] Chief Justice Lamer, for the majority, concluded that the combined effect of the failure to tell the detainee about the availability of immediate free legal advice through the toll-free number and the failure to make it clear to the detainee that he would not have to wait a significant period of time to contact counsel resulted in a failure "to convey the necessary sense of immediacy and universal availability of legal assistance": p. 202 S.C.R. In making his point, the Chief Justice noted that the detention occurred in the very early morning hours when the detainee, without an appropriate s. 10(b) caution, could reasonably think that legal advice would not be available until several hours later. [page730]

[28] Bartle identifies two key components of the informational requirement embedded in s. 10(b). First, the detainee must be told of the immediacy of the availability of legal assistance and second, the detainee must be told of the means by which he or she can access that legal advice. Bartle holds that had the officer told the detainee that he could contact counsel from the police station, that information, combined with further information about the availability of immediate legal advice, would have been sufficient to convey to the detainee that he had a right to speak with a lawyer "without delay".

[29] Bartle does not hold that it would have been misleading for the officer to tell the detainee that he could speak with counsel "now" when advising him of the right to counsel at the roadside. Nor does it follow from the analysis in Bartle that the officer would have failed to comply with s. 10(b) had he told the detainee at the roadside that he could speak with a lawyer "now". The use of the word "now" conveys the requisite immediacy of the right to speak with a lawyer. Used with the information that the detainee could get immediate free legal assistance on the phone, the use of the word "now" would also convey the nature of the s. 10(b) right and, in particular, the detainee's right to speak to a lawyer "without delay".

[30] With respect to the contrary view, I do not think that the use of the word "now" in the context of the administration of the s. 10(b) caution at the roadside implies that the detainee can speak with a lawyer instantly upon the officer's completion of the s. 10(b) caution. Most police officers are not standing with a telephone in their outstretched hand as they complete the s. 10(b) caution. The officer's statement to a detainee at the roadside that he or she may speak with a lawyer "now" would necessarily convey that the right to speak with a lawyer was contingent on the availability of a telephone that was useable in circumstances that would permit the detainee to speak with a lawyer for the purpose of obtaining legal advice.

[31] It is important to distinguish between the nature of the rights guaranteed by s. 10(b) and the further question of whether the police have properly complied with a detainee's right to consult with counsel in any given case. The constitutional right is the right to speak with a lawyer "without delay". All detainees are entitled to that right and must be so advised by the police. The language used by the police cannot suggest that the right to speak with a lawyer only arises at some point later on in the detention. If the detainee, having been told he or she has a right to speak with a lawyer "without delay", chooses to exercise that right, the police must then afford him or her a [page731] reasonable opportunity to do so. Whether the steps taken by the police to make a telephone available to a detainee, in circumstances where he or she can speak with counsel, comply with the implementational requirements of s. 10(b) turns on the facts of the specific case and not on whether the police properly informed the detainee of his or her right to speak with counsel without delay.

[32] In cases involving a roadside detention and a breathalyzer demand, all detainees must be told that they have the right to speak with a lawyer "without delay". They must also be told that they can access immediate free legal advice using the toll-free number. Should a detainee choose to speak with counsel "without delay", the police must afford him or her the opportunity to do so. Depending on the circumstances, consultation with counsel "without delay" may require a telephone call at the roadside, at the police station where the breathalyzer test will be administered or, perhaps in very unusual cases, somewhere else. It will all depend on the facts of the particular case. Questions of where and when consultation with counsel will occur are properly considered as part of the implementational phase of the rights guaranteed by s. 10(b).

[33] There are insurmountable practical problems associated with incorporating into the s. 10(b) caution the requirement that the officer tell the detained person where the communication with counsel will occur should the detained person choose to speak with counsel. Police officers, when advising a detained person of his or her right to counsel under s. 10(b), will often not know all of the facts that may be relevant to where and when access to counsel must be provided to comply with the implementational component of s. 10(b) should the detainee elect to consult with counsel. For example, the arresting officer may believe that the consultation with counsel must occur at the police station because the arresting officer does not know that the detainee has a cellphone that works in the location where the arrest occurs. In that case, an indication to the detainee that any contact with counsel might be made at the station might well misinform the detainee as to the nature of his or her s. 10(b) rights should the detainee elect to contact counsel. It may be that the implementational requirements of s. 10(b) would require that the detainee be allowed to make the call from the roadside.

[34] The practical difficulties that would be created by requiring arresting officers to tell detainees where and when they can exercise their s. 10(b) rights as part of the informational component of s. 10(b) is not limited to the roadside arrest/breathalyzer demand situation. In most arrest situations, the arresting officer [page732] will not be in a position to hand the detained person a telephone immediately upon completing the s. 10(b) caution. In these situations, there will inevitably be some gap in time and place between the detained person's assertion of his or her wish to speak with counsel and the availability of the means of effecting that communication with counsel. If the reasoning of the Appeal Judge is correct, an arresting officer, unless he or she has the phone immediately at hand, will mislead the detainee if the officer tells the detainee that he or she may speak with counsel "now". On the approach of the Appeal Judge, the arresting officer must, in the heat of the arresting moment, make an assessment, often a very uninformed one, of where and when the detainee would be allowed to speak with counsel should he or she elect to do so. The Appeal Judge would require that this information, often misleading, be incorporated into the s. 10(b) caution. Imposing this kind of requirement on an arresting officer is not only impractical, but undermines the need to make it clear to all detained persons that they have the right to speak with a lawyer "without delay".

[35] I am also not moved by the contention that the use of the word "now" in advising a detainee of his or her right to counsel may be misleading to some detainees in some situations. Virtually any word in the English language has some ambiguity and is capable of taking on different meanings to different people. Any word or combination of words has the potential to mislead somebody at some time. For example, had the officer used the language required by the Appeal Judge, a detainee might well have believed that he or she could contact their lawyer at the police station, but only after the breathalyzer was administered. That detainee would have been misled by the language that the Appeal Judge would require the police to use.

[36] It is fruitless to search for phrasing that does not have any potential to mislead anybody in any given situation. Rather than pursuing the hopeless task of finding absolutely unambiguous language, compliance with s. 10(b) must be measured by its ability to convey the essential character of the s. 10(b) rights to the detainee -- the right to immediate access to a lawyer, including access through the toll-free number to immediate free legal advice.

[37] There is value in the use of a standardized s. 10(b) caution which complies with the informational requirements established in the Supreme Court of Canada jurisprudence. Attempts to graft onto the standardized caution fact-specific information as to where and when the detainee can exercise the right to counsel, if he or she chooses to do so, is more calculated to create [page733] litigation than to advance the purposes of the constitutional right protected by s. 10(b).

[38] I, of course, do not suggest that the police are never obligated to go beyond the information required to comply with the informational component of s. 10(b). Questions or comments made by a detainee or other circumstances at the time the s. 10(b) caution is given may indicate a misunderstanding by the detainee of the nature of the s. 10(b) rights. In those circumstances, the arresting officer will have to provide a further explanation of the rights: R. v. Kennedy, 1995 CanLII 9863 (NL CA), [1995] N.J. No. 340, 103 C.C.C. (3d) 161 (C.A.), at pp. 181-82 C.C.C.; Bartle, at pp. 192-93 S.C.R.; R. v. Baig, 1987 CanLII 40 (SCC), [1987] 2 S.C.R. 537, [1987] S.C.J. No. 77, at p. 540 S.C.R.; and Leedahl, at paras. 13-14. It is noteworthy that Galbraith, the case relied on by the Appeal Judge, and the other trial decisions to the same effect (Dean and S. (C.J.)), were cases in which the court found, based on the circumstances in which the s. 10(b) caution was given and the responses of the detainees, that the detainees did not understand the nature of their s. 10(b) rights. Consequently, the results in these cases can be justified without requiring the arresting officer to go beyond the informational component of s. 10(b) as set down in Brydges and Bartle.

[39] In her testimony, the respondent did not suggest that she did not understand what she was told about the right to counsel or that she was misled into believing that her only choice was to contact counsel from the back of the police cruiser at the roadside. The respondent testified that she did not hear the officer say anything about her right to speak with a lawyer and that had she been aware of that right, she would have asked to speak with a lawyer. The trial judge rejected her evidence. He accepted Constable Large's testimony that the respondent was invited to consult with counsel "now" and unequivocally declined that opportunity. The Appeal Judge found that the officer's language misled the respondent into thinking that she could only contact counsel immediately from the roadside. There is nothing in the evidence to support this finding which runs contrary to the finding of the trial judge and the appellant's own evidence. The Appeal Judge was not entitled to substitute his factual finding for that of the trial judge.

[40] For the reasons I have tried to explain, there is nothing inherently misleading in telling a detainee at the roadside that he or she can speak with a lawyer "now". In my view, that phraseology conveys the immediacy of the detainee's entitlement to speak with a lawyer. The further question of what the police must do to make good on that offer arises if and when the detainee chooses to exercise the right to speak with a lawyer "without delay". [page734]

[41] The language used by Constable Large conveyed to the respondent that she could speak with a lawyer without delay if she wanted to do so. Combined with the information he gave her concerning how she could access counsel immediately through the toll-free number, the respondent was armed with all the information she needed to make an informed decision as to whether she wanted to speak with a lawyer before submitting to the breathalyzer demand.

[42] I would add one further comment with respect to Constable Large's failure to re-advise the respondent of her right to counsel when he and the respondent arrived at the detachment. I agree with the holding in Leedahl in this regard. Where a detainee has been properly cautioned at the roadside and has indicated that he or she does not wish to speak with a lawyer, failure to re-advise the detainee of his or her right to counsel at the police station does not necessarily constitute a breach of s. 10(b). That said, however, I think that in cases such as this, it would be a much better practice for the police, upon arrival at the detachment, to reiterate the right to counsel. A simple repetition of the right to counsel and an invitation to a detainee to speak with counsel "now", if he or she wishes to do so, would serve two purposes. First, it would reinforce the fundamental importance of the right to counsel and the need for all participants in the justice system to recognize that fundamental importance. Second, it would effectively short-circuit any claim at trial by a detainee that he or she was misled at the roadside by the use of the universal s. 10(b) caution into believing that the right to counsel could only be exercised then and there. Given the right circumstances, and absent a reiteration of the right to counsel at the police station, that argument could succeed. VII. The Additional Issue Raised by the Respondent

[43] Counsel for the respondent argued that if the court accepted the Crown's position on the s. 10(b) issue, the Appeal Judge's order for a new trial could be sustained on another ground. Counsel argued before the Appeal Judge that the interventions of the trial judge were such as to render the appearance of the trial unfair and to necessitate a new trial. The Appeal Judge did not address this issue given his finding on the s. 10(b) issue. Counsel renewed the argument in his factum in this court.

[44] Counsel did not press this issue in oral argument. Having reviewed the transcript, I am satisfied that many of the trial judge's interventions, especially during the cross- examination of Constable Large, were helpful to an understanding of the evidence. [page735] The worst that could be said is that some of the interventions were unnecessary. None suggest any prejudgment, bias against the respondent or an attempt to buttress the Crown's case. There is no merit to this argument. VIII. Disposition

[45] I would grant leave to appeal, allow the appeal and restore the conviction entered at trial.

Appeal allowed.

Notes

Note 1: The court was referred to three cases going each way on this issue: R. v. Galbraith, 2005 CanLII 8691 (ON SC), [2005] O.J. No. 1120, 129 C.R.R. (2d) 169 (S.C.J.); R. v. Dean, [2008] O.J. No. 5498, 2008 ONCJ 702; and R. v. S. (C.J.), [2006] O.J. No. 2117 (C.J.) favour the position taken by the Appeal Judge. R. v. Sihanath, [2007] O.J. No. 5335, 2007 ONCJ 665; R. v. Woldegzi, [2006] O.J. No. 4302, 39 M.V.R. (5th) 256 (C.J.); and R. v. Phonprasith, [2006] O.J. No. 5293 (C.J.) favour the position advanced by the Crown on this appeal.

Note 2: R. v. Leedahl, 2002 SKCA 5, [2002] S.J. No 14, 24 M.V.R. 94th) 188 (C.A.) involves a fact situation which is virtually identical to this case. The issue raised, however, turned on whether s. 10(b) of the Charter required that a person who had been given his rights to counsel at the roadside and declined to exercise those rights must also be advised of his right to counsel upon arrival at the police station and prior to the administration of the breathalyzer. The court unanimously held that in the absence of any basis for finding that the accused did not understand his rights when advised of them at the roadside, there was no obligation to further advise an accused of his right to counsel upon arrival at the station.