Court File and Parties

Court File No.: 11 2105

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Michael Sacilotto

Before: Justice Lloyd Dean

Section 10(b) Voir Dire heard on: June 27, 2012

Counsel:

• Scott Pratt, for the Crown
• Brian Ducharme, for the Accused

Ruling on S. 10(b) Voir Dire

Introduction

[1] The accused is charged with having care or control of a motor vehicle while his blood alcohol level exceeded 80 mg/100 ml of blood contrary to section 253(1)(b) of the Criminal Code.

[2] Defence counsel has brought an application for an order granting relief under section 24(2) of the Canadian Charter of Rights and Freedoms ("Charter") for the exclusion of evidence obtained as a result of a violation of section 10(b) of the Charter.

Facts

[3] Following is an overview of the facts relevant to this voir dire.

[4] On September 17, 2011 in the City of Windsor the accused, who is 26 years old, was arrested for impaired driving.

Evidence of the Accused (Direct)

[5] After he was arrested he was transported to the Windsor police service headquarters and given a list of lawyers by the police. From that list he chose a lawyer by the name of Lakin Afolabi. In his affidavit the accused states that he chose Mr. Afolabi because he recognized him as a person he went to high school with and therefore he had confidence in his advice. The officer called the number for Mr. Afolabi. There was no answer and the officer hung up the phone. The evidence of the accused is that the officer immediately told him to choose another lawyer and he complied with that order (as he described in his affidavit filed as an exhibit). There was no answer on that second phone call. He was told to choose another lawyer so he chose a third lawyer. He indicates in his affidavit that he spoke briefly to this lawyer and also indicated in his affidavit he was not satisfied with the advice from this lawyer who he did not know. The accused never disclosed to the officer that he was not satisfied with the advice he received. He says he did not disclose that because after everything that had happened he knew he just wanted to comply with the officers, so he didn't want to come out and say he wasn't satisfied and wanted another lawyer or anything like that. He stated after she (referring to the third lawyer) had given him the advice he just left it at that. He went on to state that he did not know how it worked as it was his first time being arrested. He thought it was just custom to move on to another lawyer; he wasn't sure.

[6] With respect to the call to Mr. Afolabi the accused testified the officer did not tell him he had a right to refuse to contact another lawyer and wait a reasonable time for Mr. Afolabi to become available. The accused said he recognized the officer who had given him his rights to counsel and who was handling the phone, as the officer was also someone with whom he went to high school. (The officer's last name is Bagnirol.) The accused did not know if the officer called Mr. Afolabi's home, office or cell phone. The officer never offered a phone book to him to find another number for Mr. Afolabi, nor did the officer offer the phone to the accused to dial it himself.

Evidence of the Accused (Cross-Examination)

[7] The accused acknowledged the calls that were made to the three lawyers was at approximately 12:30 AM. The accused was aware that he had a right to speak to a lawyer. The accused observed the officer make the phone call to Mr. Afolabi. He observed Officer Bagnirol to have the phone up to his ear for about a minute and then hang up and say there was no answer. The accused agreed the officer suggested he find another lawyer. The accused said he looked at the list provided by the officer for an Italian lawyer, as he was of Italian descent himself. The accused acknowledged that the officer was friendly throughout their dealings, that the officer was not aggressive or mean-spirited towards him. He also acknowledged that the officer definitely recognized him (referring to their attendance at the same high school). The accused believes he called three other lawyers after the call to Mr. Afolabi before he was able to speak to someone.

[8] The accused does remember having to sign a book after the phone calls were made. A photocopy of the page of the book that pertains to this case was shown to the accused. He acknowledged his signatures in the book. This photocopy was entered as an exhibit in the voir dire. It suggests that three lawyers were called for the accused, the last one being Lisa Carnelos. It suggests that the accused spoke with Ms. Carnelos for five minutes. The accused agrees that after getting off the phone with Ms. Carnelos he never told Officer Bagnirol that he was not satisfied with the phone call. He further acknowledged that when he was with the breathalyzer technician, the breathalyzer technician read-out and told him all about his rights to counsel, and it came out that the accused had already spoken to a lawyer. The accused later seemed to move away from that statement and stated he does not recall what was said during the conversation with the breath technician. He does acknowledge that he does not recall saying or doing anything to indicate to the breathalyzer technician that he was not satisfied. The accused restated that the first lawyer he chose from the list was someone he went to high school with and so he would have trusted that advice over the other lawyers he randomly chose.

[9] The Crown called no evidence on the voir dire.

Position of the Parties

Defence

[10] The defence argues the police failed to provide the accused his s. 10(b) rights by failing to inform him of his right to refuse to contact another lawyer and that they have to wait a reasonable amount of time for his lawyer to become available. In support of its position the defence relies on several cases, including R. v. McCrimmon, 2010 SCC 36, and the wording of s. 10(b) of the Charter.

[11] The defence further argues there was no evidence called by the Crown as to what number was called by the officer; was it Mr. Afolabi's home number, cell number or office number. The defence argues there was no evidence that the officer offered to call the home or the cell phone, given the time of the day (12:30 AM).

[12] In his submission defence counsel spoke about the accused not being satisfied with the advice he received from Ms. Carnelos. During the submission on that point defence counsel acknowledges the accused did not tell the police he was not satisfied, but asks the court, "Where does it say he has to tell the police?"

Crown

[13] The Crown argues, bearing in mind the defence has the burden to prove the Charter breach, that there is no evidence before the court that the police had more than one number to call for the accused's counsel of choice. The Crown also argues that the police acted in good faith and took steps to facilitate the s. 10(b) right. The accused ultimately spoke to a lawyer whom he chose and afterwards expressed no dissatisfaction. The Crown argues there was a lack of diligence on behalf of the accused.

[14] Further, the Crown submits defence counsel is trying to create new law by suggesting there is a duty on the police to inform the accused he has a right to refuse to speak to another counsel and that the police have a duty to wait a reasonable amount of time for the accused's counsel of choice to become available.

[15] The Crown relies on several cases to support its position and not surprisingly argues the cases relied on by the defence either do not support the arguments of the defence or are distinguishable.

The Purpose of S. 10(b)

[16] The onus of proving a Charter breach is on the person alleging the breach to prove on a balance of probabilities that a breach has occurred.

[17] Section 10(b) of the Canadian Charter of Rights and Freedoms states as follows:

Everyone has the right on arrest or detention,

(b) to retain and instruct counsel without delay and to be informed of that right.

[18] In the case of R. v. Bartle, (1994), 92 C.C.C. (3d) 289 (S.C.C.), Justice Lamer stated there are three duties imposed on the police upon arresting or detaining an accused:

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and the existence and availability of Legal Aid and duty counsel;

(2) if a detainee has indicated a desire to exercise his right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and,

(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

[19] In R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, the Supreme Court explained the purpose of section 10(b) is to provide detainees with immediate legal advice on his or her obligations under the law, mainly the right to remain silent, important in protecting one's right against self-incrimination, but as well to assist in regaining one's liberty. The s. 10(b) right allows a detainee to become conversant not only with his or her rights and obligations under the law but also to obtain advice as to how to exercise those rights: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310 (S.C.C.). It is designed to ensure that detainees "have an opportunity to be informed of their rights and obligations under the law and to obtain advice on how to exercise those rights and perform those obligations.": R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429 (S.C.C.). The ultimate goal of s. 10(b) is to ensure that those detained or arrested are treated fairly.

[20] The Supreme Court has identified two components of the right to counsel that are protected by s. 10(b). First is the informational component; the police must tell the detainee about his right to consult counsel. The second component of the s. 10(b) right to counsel is the implementation component. The police are required to give the detainee an opportunity to exercise his right to counsel. The courts have held that this second component implies that there is a duty on the police to hold off questioning until the detainee has had a reasonable opportunity to consult with counsel. (see R. v. Sinclair, supra, R. v. Willier, supra; and R. v. McCrimmon, supra.)

Analysis

Was the Accused Denied His Counsel of Choice?

[21] In McCrimmon, supra, the Supreme Court at paragraph 17 stated:

"Where the detainee opts to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles him or her a reasonable opportunity to contact chosen counsel. If the chosen lawyer is not immediately available, the detainee has the right to refuse to contact another counsel and wait a reasonable amount of time for counsel of choice to become available. Provided the detainee exercises reasonable diligence in the exercise of these rights, the police have a duty to hold off questioning or otherwise attempting to elicit evidence from the detainee until he or she has had the opportunity to consult with counsel of choice. If the chosen lawyer cannot be available within a reasonable period of time, the detainee is expected to exercise his or her right to counsel by calling another lawyer, or the police duty to hold off will be suspended: R. v. Ross, [1989] 1 S.C.R. 3; R. v. Black, [1989] 2 S.C.R. 138.

[22] It is important to note in the case before me the facts are not that a message was left on an answering service or device of the accused's first counsel of choice. The evidence before me is that the officer called the phone number for the accused's first counsel of choice and received no answer. There was no evidence before me the officer reached an answering device and failed to leave a message. Nor was there any evidence produced to support a finding the number called had an answering device or service attached to it which provided an alternate number for the person trying to be reached. At the time of submissions I expressed some concern to Crown counsel about the fact that I had no evidence as to what number the officer called for Mr. Afolabi or whether or not there was only one number listed for him. After reviewing the evidence I note the accused testified he was given a list of lawyers by the officer and the name chosen was selected by the accused. Was there more than one number for the lawyer listed? If there was, I am left wondering why the accused did not ask the officer to dial the other number listed. The accused acknowledged he observed the officer have the phone to his ear for about a minute and then indicate to him there was no answer. There is no evidentiary foundation to support the police officer had in their possession more than one number for that counsel and failed to call the other number or numbers. I certainly cannot take judicial notice there would have been more than one number listed for him. Bearing in mind the accused has an obligation to be reasonably diligent in exercising his right to counsel and that the burden rests on the accused to prove the breach, I am not persuaded the accused's s. 10(b) rights were violated as a result of only one number having been called.

[23] As stated, the accused was presented with a list of lawyers. From that list he picked a name of someone he recognized from high school. After that number was called and there was no answer he picked another name from the list, Julie Santarossa. An exhibit entered during the voir dire is a photocopy of the entries made in a log by an officer. Recorded next to the phone number for Ms. Santarossa are the words "no voice mail left". I am not sure what that means. Does that mean there was no opportunity to leave a message or that the officer chose not to leave a message? That was never canvassed by defence counsel. It is always available for the defence to call any evidence it wishes to call, including police officers, to assist them in meeting its burden to prove a Charter breach.

[24] At paragraph 35 of Willier, supra, the court stated:

[35] Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation: Black. If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended: R. v. Ross, [1989] 1 S.C.R. 3; and Black. As Lamer J. emphasized in Ross, diligence must also accompany a detainee's exercise of the right to counsel of choice, at pp. 10-11:

Although an accused or detained person has the right to choose counsel, it must be noted that, as this Court said in R. v. Tremblay, [1987] 2 S.C.R. 435, a detainee must be reasonably diligent in the exercise of these rights and if he is not, the correlative duties imposed on the police and set out in Manninen are suspended. Reasonable diligence in the exercise of the right to choose one's counsel depends upon the context facing the accused or detained person. On being arrested, for example, the detained person is faced with an immediate need for legal advice and must exercise reasonable diligence accordingly. By contrast, when seeking the best lawyer to conduct a trial, the accused person faces no such immediacy. Nevertheless, accused or detained persons have a right to choose their counsel and it is only if the lawyer chosen cannot be available within a reasonable time that the detainee or the accused should be expected to exercise the right to counsel by calling another lawyer.

[25] And at paragraphs 38 and 39 of Willier, the court stated:

[38] The circumstances prompting this Court to articulate the additional informational duty in Prosper are fundamentally different from those in the case at hand. As noted above, a Prosper warning is warranted in circumstances where a detainee is diligent but unsuccessful in contacting a lawyer and subsequently declines any opportunity to consult with counsel. Section 10(b)'s provision of a reasonable opportunity to consult with counsel is a fundamental guarantee aimed at mitigating a detainee's legal vulnerability while under state control. It affords detainees the chance to access information relevant to their self-incrimination and liberty interests: Bartle. The Prosper warning ensures that detainees are aware that their right to counsel is not exhausted by their unsuccessful attempts to contact a lawyer. This additional informational safeguard is warranted when a detainee indicates an intent to forego s. 10(b)'s protections in their entirety, ensuring that any choice to do so is fully informed. In Prosper, the detainee ceded any opportunity to mitigate his legal disadvantage and benefit from the protections afforded by s. 10(b), triggering the additional informational warning.

[39] The circumstances of this case are not analogous. The concerns animating the provision of a Prosper warning do not arise when a detainee is unsuccessful in contacting a specific lawyer and simply opts to speak with another. In no way did Mr. Willier attempt to relinquish his right to counsel and thus any opportunity to mitigate his legal disadvantage. He made no attempt to waive his s. 10(b) right. Instead, unsuccessful in contacting Mr. Royal, he exercised his right to counsel by opting to speak with Legal Aid. As such, the police were under no obligation to provide him with a Prosper warning, and its absence fails to establish a Charter breach.

[Emphasis added.]

[26] And at paragraphs 41 and 42:

[41] While s. 10(b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does not require them to monitor the quality of the advice once contact is made. The solicitor-client relationship is one of confidence, premised upon privileged communication. Respect for the integrity of this relationship makes it untenable for the police to be responsible, as arbiters, for monitoring the quality of legal advice received by a detainee. To impose such a duty on the police would be incompatible with the privileged nature of the relationship. The police cannot be required to mandate a particular qualitative standard of advice, nor are they entitled to inquire into the content of the advice provided. Further, even if such a duty were warranted, the applicable standard of adequacy is unclear. As this Court recognized in R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27, there is a "wide range of reasonable professional assistance", and as such what is considered reasonable, sufficient, or adequate advice is ill defined and highly variable.

[42] As noted, s. 10(b) aims to ensure detainees the opportunity to be informed of their rights and obligations, and how to exercise them. However, unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview…

[Emphasis added.]

[27] In my opinion the issue in this case with respect to whether Mr. Sacilotto was provided with his counsel of choice is answered by the Supreme Court in Willier: "The concerns animating the provision of a Prosper warning do not arise when a detainee is unsuccessful in contacting a specific lawyer and simply opts to speak with another." The accused did not refuse to speak to any other lawyer when his first lawyer of choice was not available, which he had a right to do. Therefore the concerns animating the provision of a Prosper warning do not arise.

[28] I disagree with defence counsel's position that the police have a duty to inform the accused that he has the right to refuse to contact a lawyer. As I understand the Supreme Court's ruling in Willier, the accused has the right to refuse to contact another lawyer, not that the police have a duty to inform the person they have the right to refuse. In my view that is consistent with the Supreme Court's statement in Willier and other rulings that the accused has a duty to be reasonably diligent in exercising their right to counsel.

[29] The third lawyer selected was an experienced (over 15 years), well known defence counsel to the court, Lisa Carnelos. This court is aware that Ms. Carnelos has experience in this area of the law. The accused spent approximately five minutes talking with her and then afterwards provided breath samples. As noted earlier, the accused in his affidavit described his conversation with Ms. Carnelos as brief and he was not satisfied with the advice from Ms. Carnelos whom he did not know.

[30] I recognize the facts of the case before me are not on all fours with the case of Willier. Nonetheless it is my opinion that the reasoning and statement of law made in paragraphs 38 and 39 of that decision are applicable. I am mindful of the fact Mr. Sacilotto indicated he was ordered to immediately choose another lawyer. But other than make that claim he gave no details during the voir dire as to why he felt the officer was ordering him to choose another lawyer. He simply states the officer told him to select another lawyer immediately and he complied with that order. No details were given by the accused as to the tone of voice the officer used that causes him to say he was ordered by the officer to choose another lawyer. The other evidence he gave during the voir dire does not support a finding that he was "ordered" to choose another lawyer. During cross-examination he agreed Officer Bagnirol, who he attended high school with, was friendly throughout the incident. When the prosecutor put to the accused in cross-examination that the officer "suggested" he find another lawyer, the accused agreed. He did not correct Crown counsel and re-state that he was ordered to pick another lawyer. He agreed with Crown counsel the officer was not aggressive or mean spirited in any way. What was the officer to do when the first call he made went unanswered but give the accused an opportunity to call another lawyer? Further, the accused did not say anything to the officer at the time, who he said he recognized as someone he went to high school with, about his dissatisfaction with what was happening. I am mindful his evidence was this was the first time he had been arrested and he did not know what his options were and he just decided to comply with the officer. In other words, he chose to remain silent at the police station about not wanting to pick another lawyer, silent about his lack of understanding or appreciation of what his rights were and silent about his dissatisfaction with the legal advice he received. The police officers were entitled to assume the accused was satisfied with the exercised right to counsel.

[31] As stated earlier, the onus is on the party raising a Charter breach to prove on the balance of probabilities that the alleged breach has occurred. The evidence I have heard in this case does not persuade me the accused's right to counsel of choice was violated.

[32] The cases relied on by the defence are either distinguishable on the facts and/or are neither binding nor persuasive. Some were decided before the Supreme Court's ruling in Willier, so the trial judge did not have the benefit of that ruling. And some although decided post-Willier, make no mention of it.

Conclusion

[33] On the evidence before me the accused has not satisfied me on the balance of probabilities that his s. 10(b) rights have been violated.

Dated: September 27, 2012

Judge Lloyd Dean

Ontario Court of Justice