COURT FILE No.: Kitchener 1705/11

DATE: 2012·01·30

Citation: R. v. Treliving, 2012 ONCJ 75

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

STEPHEN J. TRELIVING

Before Justice G. F. Hearn

Heard on November 17, 2011

Reasons for Judgment released on January 30, 2012

A. Warne ................................................................................................................... for the Crown

B. Smart .................................................................................. for the accused Stephen J. Treliving

HEARN J.:

BACKGROUND:

[1] Mr. Treliving came before the court on November 17, 2011 and at that time entered pleas of not guilty to two counts arising out of events on April 3, 2011. The charges before the court are impaired operation and over 80.

[2] Prior to the trial counsel for Mr. Treliving had filed and served a notice of application alleging breaches of Mr. Treliving’s rights under s. 7, s. 8, s. 10(b) of the Charter. A response was filed on behalf of the Crown and at the commencement of trial both the Crown and the defence agreed to proceed by way of a blended hearing. The Crown called evidence on both the application and trial matters. The defence has called evidence on the application only at this point.

[3] The evidence of the Crown was completed and the evidence on the application finalized on November 17, 2011. The matter was then adjourned for written submissions. Those submissions have now been received from both counsel and the matter has been ultimately adjourned to today’s date for ruling on the application.

EVIDENCE OF THE CROWN:

Evidence of Mehdi Dehghan:

[4] Mr. Dehghan was on his way to work in the morning hours of April 3, 2011. He was operating his motor vehicle at about 6:05 a.m. on that day when he pulled onto the on-ramp to Highway 8 from Fairway Road. At that time he noticed a motor vehicle coming to rest on its roof with the headlights pointing upward off the embankment on that particular ramp.

[5] He pulled his car over immediately and noticed two individuals crawling out of the vehicle. He noted a black male to be exiting through the passenger front window of the vehicle and a white male to come out of the driver’s window. He noted the two males to be looking dazed. He approached them and asked them if they were both okay and if they needed his help.

[6] Mr. Dehghan was asked by the white male if he had seen a “Dodge Ram that had driven them off the road”. Mr. Dehghan advised that he had seen no such thing. There was no other discussion and he proceeded to call 911 on his cell phone.

[7] As he was placing that call a police officer pulled up onto the ramp.

[8] Mr. Dehghan stated that he had seen “zero traffic on the ramp” as he approached the vehicle and had not seen a car going in either direction. He estimated the time from the time he first saw the vehicle until the two individuals exited to be less than a minute. He estimated the officer to arrive within three minutes thereafter.

[9] In cross-examination he indicated there had been no request by either male for the police to be called and acknowledged that he was not in a position to see how the vehicle actually had got into the position it was when he first observed it. He also confirmed it was his view that the individuals would not have been aware he was calling the police as he did so at his vehicle and the police arrived quickly.

Evidence of Constable Richard Adams:

[10] Constable Adams is the officer that completed the traffic report in this matter ultimately. He was at Central Division when he heard over the radio what he thought was a crash and then being advised that officers were on the scene of an accident. He offered his services to complete the accident report and travelled to the scene, arriving at 6:27 a.m. He found Constable Hill present on the scene and an individual who described himself as the passenger in the vehicle. That individual was a young black male who appeared to be under the influence of alcohol. Observations were noted including signs of intoxication and the upset of the male.

[11] This officer had no contact with the accused and completed the accident report. The report as well as a series of photographs have been marked as exhibits. The officer described the roads as dry, traffic very light and the temperature at the time as about minus four degrees Centigrade.

[12] He described the area where the accident had occurred and indicated that he had heard the initial loud noise over the radio at about 6:13 a.m. and within two minutes thereafter heard further that other officers had arrived on the scene.

[13] His involvement seems to have been dealing primarily with the preparation of the report, although he did have some contact with the black male who he stated he later dropped off at a local motel. He had no contact with Mr. Treliving during the course of the preparation of the accident report.

Evidence of Constable Tyler Valcanoff:

[14] Constable Valcanoff is a member of the Waterloo Regional Police Service and is the lead officer in this matter. He was situated in a police cruiser with another officer, who I gather was in a separate cruiser, at a parking lot in the area of Fairway Road and Highway 8 on April 3, 2011. At approximately 6:13 a.m. the two officers were in the lot, he had his window down and stated that he heard a motor vehicle accelerating, followed by the screeching of tires and then a loud “dramatic crash”. It sounded serious, he looked around the area and observed at that point a motor vehicle on the ramp to Highway 8 from Fairway Road with its four-way flashers on.

[15] He travelled in his cruiser, as did Constable Hill (the other officer), to the area, arriving within one minute, parked his cruiser behind the other vehicle and radioed to dispatch to send an ambulance.

[16] He noted a motor vehicle on its roof down a rock embankment some twelve to fifteen feet below the ramp. He also observed an individual by the vehicle at the top of the ramp, presumably Mr. Dehghan. He walked past Mr. Dehghan, had no discussion that he can recall with him and then walked down the embankment.

[17] He observed debris scattered, the trunk open with the vehicle on its roof and two males arguing behind the trunk of the vehicle. They appeared to be oblivious to his presence and he noted a black male to be raising his voice, yelling and appearing to be angry at the other male.

[18] He approached the males and asked if everything was okay and they indicated they were fine. At that point he cancelled the ambulance that he had requested be dispatched. He then asked the males which one was driving and at that point the accused who was the white male indicated he had been operating the vehicle.

[19] The officer observed no injuries on either of the individuals. Once the accused had identified himself as the operator he asked the accused for identification which was produced. Constable Hill had arrived on scene at some point and Constable Valcanoff believed that he asked Constable Hill to deal with the other male. This officer had no further contact with that male, nor did Constable Hill have contact with the accused.

[20] The officer then had a conversation with the accused regarding the events that had taken place. The accused indicated that there had been another motor vehicle in the area that had cut him off causing his vehicle to slide over the embankment. He described the other vehicle as a pickup truck. The officer looked around and did not see evidence of the truck. During the conversation with the accused he noted a strong odour of an alcoholic beverage from the accused’s breath. He also had to ask him to repeat several times his statements as the accused’s speech was so slurred it was difficult to understand him. He further noted the accused to have red, glossy eyes. The accused acknowledged that he had consumed an alcoholic beverage the night before. The officer also noted that the accused stumbled a couple of times, almost falling over.

[21] As a result of the observations made, at 6:14 a.m. the officer believed he had reasonable and probable grounds to arrest the accused for impaired operation and did so. He indicated he believed that the accused’s ability to operate a motor vehicle was impaired by alcohol.

[22] At 6:19 a.m. the officer read rights to counsel from his notebook to the accused. He asked the accused if he understood and then asked the accused if he wished to call a lawyer. The accused responded at that point, “Can I call my parents? I don’t know what to say.”.

[23] The officer did not respond to that particular inquiry but following it explained the options available to the accused, being that he could phone a lawyer and a phone book would be provided, or duty counsel could be arranged and he reminded Mr. Treliving of the “free telephone number”. There was no further discussion with respect to the issue and no response by Mr. Treliving to the “options provided”.

[24] At 6:20 a.m. a caution was read to Mr. Treliving. He was asked if he understood and responded, “Yes, I made a mistake, I fucked up.”. The officer asked him what he meant and Mr. Treliving then went on to state that he made the mistake by driving, that he had been awakened by the passenger who had been involved in a domestic dispute with his girlfriend and had been asked by the passenger to drive him home as the passenger was “too drunk to drive”.

[25] At 6:23 a.m. a breath demand was read. No issue was taken with the wording of that demand nor the rights to counsel or caution. When asked if he understood the breath demand Mr. Treliving responded, “Yes, I do. I can tell you what I drank.”. The officer asked him to elaborate and the accused then went on to provide the particulars of having drank alcohol at a local bar, going to a hotel, crashing and then being awakened by his passenger as noted. All of these conversations took place in the cruiser.

[26] At 6:25 a.m. Constable Valcanoff and the accused left the scene in the cruiser, arriving at the detachment at 6:33 a.m. The officer described Mr. Treliving’s demeanour as very pleasant and sociable. During the trip Mr. Treliving had requested to stop for a coffee and while listening to a song on the radio indicated that he “loved this song”. There was no other discussion and the odour of alcohol in the cruiser was quite strong to the point where the officer had rolled his window partially down.

[27] The officer described the grounds for the arrest as the observations of the collision, the acceleration heard prior to the collision, the identification of Mr. Treliving as the driver, the odour of alcohol, the slurred speech, the red and glossy eyes, the unsteadiness on his feet and the admissions as to consumption the night before.

[28] The officer also testified that he had turned his mind to the time when the accident had happened and tied it in with the screeching of the tires and the acceleration and the crash he had heard earlier. He estimated that the accident had happened within a minute of him hearing those sounds and then proceeding to the scene. He also testified that there were softball size rocks on the ramp which indicated to him the vehicle had just left the roadway as well.

[29] The officer was questioned by the Crown with respect to the circumstances leading up to the accused admitting that he was the driver. He testified he never advised either male that they were required to answer the question as to who was driving and that the accused had simply “opened up” and told him that. The officer candidly stated that if nothing had been forthcoming with respect to that issue he would have had to continue his investigation. He also indicated that at no time at the scene had he indicated to Mr. Treliving that he had to make a report to himself or to any other officer. The first inquiry he had made of the two males was whether or not they were injured and it was within seconds after asking that that he had asked who the driver was. The officer indicated the only determination of who the driver was at the roadside prior to making the arrest of Mr. Treliving was Mr. Treliving’s own admission in that regard.

[30] The officer described his approach to the two individuals when he initially attended at the location. He stated it was friendly and he in fact was a little shocked that neither of the individuals had been injured. He further confirmed that prior to the arrest he had made no reference whatsoever to the provisions of the Highway Traffic Act.

[31] The officer was questioned again with respect to the rights to counsel at the roadside and re-stated the following:

(1) Mr. Treliving at no point at the roadside had made a request to speak to a lawyer or duty counsel.

(2) At no time at the roadside other than the initial request to call his parents had there been a further reference by Mr. Treliving to his parents and he did not at any time elaborate on why he wished to call his parents.

(3) The officer in his own mind thought the request to call the parents was so Mr. Treliving could tell them he was okay as the officer stated if he was involved in any accident he would want to let his parents know that he was okay.

(4) Notwithstanding the timing of the request to call his parents the officer never linked the request to talk to the parents to rights to counsel.

(5) As a result of the accused indicating he did not know what to say the officer reiterated the options that he had.

(6) The officer had no concerns about the ability of the accused to understand or comprehend what was being said.

(7) With respect to the options being repeated, the officer did not use his notebook in that regard and gave the options as he was of the view that the accused did not know where to “go from here” and did not know what to do. After the options were again given there was no further response by the accused with respect to the issue of counsel or with regard to calling his parents at the scene nor en route to the detachment.

[32] The officer testified that he left the scene and arrived at the detachment at 6:33 a.m. Mr. Treliving was then processed and at 6:36 a.m. was placed in an interview room subject to video and audio recording. Mr. Treliving had apparently asked for something to read prior to going into the interview room as he was “bored”. The officer stated that once in the interview room he asked again whether or not Mr. Treliving wished to call counsel. The officer testified he does that as a usual practice when, as he put it, there is a decline for counsel previously. At that time there was no request to speak to counsel nor a request to call his parents by Mr. Treliving. The officer again explained the options to Mr. Treliving without reference to his notebook and again Mr. Treliving declined the options.

[33] Constable Valcanoff then finished the detain sheet and provided grounds to Constable Adams, the breath technician. He did not have a time when those grounds were provided. Mr. Treliving was escorted to the breath room at 7:11 a.m. where the first test was conducted and then escorted back to the interview room. Again, the officer had no time as to when Mr .Treliving was returned to the interview room after the first test but at 7:51 a.m. Mr. Treliving was back to the breath room where the second test was completed. The officer indicated that he had not done anything to continue the investigation during the time between the samples.

[34] Mr. Treliving was back in his custody at 8:03 a.m. and documentation was served on Mr. Treliving including copies of the certificate of the qualified technician and notice of intention to produce.

[35] During the evidence of Constable Valcanoff a video was played showing the interaction between the officer and Mr. Treliving as well as Mr. Treliving on his own while in the interview room. That DVD has been marked as Exhibit #3. Upon showing that video the court has had the opportunity to observe the demeanour of Mr. Treliving as well as his interaction with Constable Valcanoff. Relevant to the application the following was noted:

(1) He was placed in the interview room at 6:36 a.m. and the officer is noted to be obtaining information from Mr. Treliving with respect to the detain sheet. Mr. Treliving appears to be responsive to the officer’s questioning with respect to that issue.

(2) The officer again asked Mr. Treliving if he wished to speak to a lawyer and again he provided options to Mr. Treliving including the availability of a telephone book as well as the contact option concerning duty counsel. The officer indicated that he could provide a telephone book or “whatever you want” or Mr. Treliving could call duty counsel.

(3) Upon being advised again Mr. Treliving asked the officer what he would suggest and the officer made it clear that he could not suggest anything and again advised him that he had the right to speak to counsel and that he would “leave it up to you”. Failing a lawyer the officer indicated that he could “hook up” Mr. Treliving with duty counsel for free. As it appeared Mr. Treliving was uncertain as to what to do the officer told him that he would give him a minute or two to think about it and he would “come back”. He then left the room at 6:48 a.m.

(4) The officer returned at 6:53 a.m. and asked Mr. Treliving if he wished to call counsel to which Mr. Treliving replied that he still did not know what to do. The officer confirmed with Mr. Treliving that he had not been in trouble before and then gratuitously provided Mr. Treliving with information concerning the standard fine, the loss of licence and whether or not the matter would proceed depending on the results of the breath tests. The officer indicated to Mr. Treliving before giving this information that he could say what would happen. Mr. Treliving seemed to be content with the information provided and told the officer that as far as the breath tests were concerned he “wasn’t going to be over”. Mr. Treliving then indicated that he did not wish to speak to a lawyer and he would “go do the tests”.

(5) Even following that, the officer indicated to Mr. Treliving before the officer left the room that if he changed his mind about a lawyer he was to let the officer know.

(6) During this exchange in the interview room there is no mention of Mr. Treliving’s parents and Constable Valcanoff did give Mr. Treliving a further chance to call a lawyer even after he had provided him with the information as to the possible disposition.

(7) The tests were then conducted and a questionnaire was completed with Mr. Treliving during which he provided further information to the officer concerning the events of the evening before. Prior to the interview taking place Constable Valcanoff indicated to Mr. Treliving that there was no obligation to answer the questions and Mr. Treliving could “tell me to screw off if you like”.

[36] Finally, in-chief the officer confirmed that there had been no other discussions with respect to right to counsel other than that he had testified to and as were shown on the video. He further testified that there was no documentation or report completed nor any written statements provided by Mr. Treliving at the scene relating to the accident.

[37] In cross-examination the officer confirmed that upon hearing what he thought was an accident he attended at the scene to investigate that matter. He acknowledged that when he saw the vehicle on its roof he was conducting an investigation at that point under the Highway Traffic Act and possibly dangerous driving.

[38] In examination-in-chief he had indicated that Mr. Treliving had responded to an inquiry as to who was the driver. In the officer’s will state he had noted that upon approaching the two males he noted them to be arguing and a male had “instantly” identified himself as the driver of the motor vehicle within seconds of the conversation. His will state did not make any mention of an inquiry but the officer stated he had an independent recollection of making that inquiry notwithstanding the absence of that in his Will State. He also noted that “everything was not word for word in the will state”.

[39] In cross-examination as well the officer confirmed that when he attends an accident he expects the driver to identify himself or herself and that is his experience “most of the time”. He acknowledged his understanding that the driver was obligated under the Highway Traffic Act to identify himself or herself and was obligated to provide details of an accident.

[40] He confirmed again that following Mr. Treliving acknowledging that he was the driver Mr. Treliving provided documentation and gave the explanation with respect to the unknown truck or, as counsel specifically addressed in his questioning of the officer, provided “details of the accident as he was required to do under the Highway Traffic Act”. The officer acknowledged that that was correct.

[41] With respect to the issue of rights to counsel, the officer was questioned thoroughly in that regard and his evidence expanded somewhat from what he had indicated in-chief. After reading rights to counsel at 6:19 a.m. and receiving an affirmative reply with respect to the understanding of those rights, the response by the accused had been “Can I call my parents? I don’t know what to say”.

[42] The evidence of the officer in cross-examination then gets somewhat confusing as to what exactly he thought that meant. In-chief he had indicated he assumed that Mr. Treliving wanted to call his parents to tell them he was okay as that would have been something he would have done himself. He did not indicate in-chief that he connected that comment to the desire to speak to counsel and did not take that as a wish to speak to counsel.

[43] In-chief he had said nothing about the response to that but in cross-examination he testified that when someone wishes to call a third party, as he usually does every time and indicated he did so here, he advised Mr. Treliving “he cannot call his parents, he is an adult and he can call a lawyer and the lawyer can call the parents if he wished”. Defence counsel put it to the officer that this effectively combined the rights to counsel with the call to the parents but the officer did not agree.

[44] The officer was consistent in his evidence that Mr. Treliving did not indicate why he wished to call his parents and, if Mr. Treliving had indicated to the officer that he wished to call his parents to assist him in retaining counsel or seeking legal assistance and they had a number or something to that effect, a call would have been permitted. The call however due to apparent Waterloo Regional Police policy to the third party would not have been made by the accused but would have been made by the officer to the parents to obtain the information required to assist the accused in contacting a lawyer.

[45] Although not adopting counsel’s comments concerning “the magical words” with respect to contacting a third party, it is clear from the officer’s evidence that the contact of the third party would have had to have been in some way associated with legal assistance and the request as well as the reason for the request would have had to in some way been conveyed by Mr. Treliving to the officer before the parents would be contacted.

[46] The officer testified that following his indication to Mr. Treliving that he could not call his parents he provided options again with respect to the contacting of a lawyer to Mr. Treliving. He did agree, consistent with his evidence in-chief, that there was no response to this but in cross-examination he indicated that Mr. Treliving “ignored him” and he took that as a no and effectively a declining of the opportunity to call counsel. That waiver effectively at that time as perceived by the officer caused him to take the steps that he did at the station and as noted on the video.

[47] After the discussion at the scene with respect to counsel, the officer agreed that he followed up on the issue of the accident and particularly the comment made by Mr. Treliving that he had “fucked up”. He denied that he was attempting to elicit evidence against Mr. Treliving as suggested by counsel and indicated the follow-up was to assist him in understanding during the course of the investigation if there had been some issues leading to the accident such as a domestic matter and he was simply trying to “figure out what happened”.

[48] It is clear from the officer’s evidence in cross-examination that he felt by the time they arrived at the station at 6:33 a.m. Mr. Treliving had declined an opportunity to speak to counsel up to that point.

Evidence of Constable Tim Evans:

[49] Constable Evans was the qualified intoxilyzer technician. There is no issue taken with his qualifications. He was at another detachment of the Waterloo Regional Police in Cambridge when he received his dispatch at 6:31 a.m. to attend the Frederick Street division for the purpose of conducting breath tests. He arrived at the detachment at 6:43 a.m. and took the necessary steps to activate the Intoxilyzer 8000-C.

[50] He conducted the appropriate diagnostic tests and a printout from the instrument is marked as Exhibit #4 in this matter.

[51] At 7:02 a.m. he received the grounds from Constable Valcanoff and those grounds were consistent with those provided by Constable Valcanoff during his evidence.

[52] Mr. Treliving was received by this officer at 7:11 a.m. and at 7:12 a.m. the caution was again read by Constable Evans to Mr. Treliving. Mr. Treliving had indicated he did not “quite understand” and there was a re-reading of the caution which the accused then understood. A breath demand was read and when asked if he understood the breath demand, the accused indicated “Yes, I do. I remember going to sleep at 11:00 and I thought I had slept eight hours”.

[53] Two samples were provided with the breath sample on the second test being shorter than the first but both resulting in suitable samples. The readings were truncated to 140 milligrams of alcohol in 100 millilitres of blood from an actual reading of 147 milligrams of alcohol in 100 millilitres of blood and 120 milligrams of alcohol in 100 millilitres of blood from an actual reading of 128 milligrams of alcohol in 100 millilitres of blood.

[54] The first test had been completed at 7:22 a.m., Mr. Treliving had exited the breath room at 7:20 a.m. and returned at 7:45 a.m., with the second sample being completed at 7:51 a.m. Mr. Treliving then exited the room and this officer had no further dealings with him.

[55] During the time the officer was with Mr. Treliving there had been no request to speak to a lawyer or duty counsel nor any request to speak to his parents by Mr. Treliving or any request to clarify rights to counsel.

[56] The officer made some observations of Mr. Treliving while in his presence including an odour of an alcoholic beverage on his breath. He appeared to be co-operative, carefree, his speech was slurred, and his walking was slightly off balance. Further, he noted Mr. Treliving’s eyes to be bloodshot and watery, his clothing a mess and his complexion appearing to be pale.

[57] In cross-examination the officer indicated that Mr. Treliving had been able to follow instructions, had provided suitable samples, did everything he was told to do and could “do the tasks”. He was acknowledged by the officer to be responsive, co-operative and to also present in court with a pale complexion. Further, the balance was noted as being slightly off and the officer agreed with defence counsel that when Mr. Treliving had walked into the room he had not “bumped into anything”. This was the first occasion that Constable Evans had met Mr. Treliving.

EVIDENCE OF THE DEFENCE ON APPLICATION:

Evidence of Stephen Treliving:

[58] Mr. Treliving testified that on April 3, 2011 he was involved in a motor vehicle accident. At that time he was the driver of the vehicle which he described as “Brandon’s car”. He acknowledged the car rolled off the roadway and upon coming to rest he crawled out of the driver’s window. He stated the first thing he did was to check to see if Brandon was okay. He did not call the police at that time as he was more worried about Brandon being injured.

[59] The officer pulled up almost right away and Mr. Treliving saw the officer walking towards them. He testified he approached the officer to let him know “I was okay and told him I was driving”. He stated he did that as he had been taught in drivers’ education he had to let the officer know who was driving if there had been an accident and it was his responsibility to tell the officer it was “your fault”.

[60] He believed he was taught there was a legal requirement to do that and by speaking to the officer he was following that requirement. He was also doing the same thing when he spoke to the officer about the particulars of the accident as “that goes along with the law” and was apparently another thing he had been taught at drivers’ education.

[61] He acknowledged being arrested and read his rights to counsel. He acknowledged being asked if he understood and indicating that he did. When asked if he wished to contact a lawyer he had indicated that he had requested to make a call to his parents as he did not know what to say.

[62] He stated his parents knew a lawyer who had helped them in the past and he thought that that lawyer would be able to provide the name of a lawyer he could call. He could not recall Constable Valcanoff’s response but did recall the rights being re-read and he stated he took that re-reading as an indication he was not allowed to call his parents. If he had been permitted to call his parents, he would have done so. He never made the request again as he had been told no once and he “accepted that”.

[63] In cross-examination Mr. Treliving confirmed that following the request to call his parents the officer re-read the rights and said the same thing that he had previously said with respect to contact. He did not know the name of a lawyer and wanted to get a “good lawyer that his parents approved of”. He did know that his parents had one, although he did not know specifically who it was, and when asked why he wanted to call his parents to find out the name he indicated he had no idea who a good lawyer was and he did not want to call a lawyer and waste the lawyer’s time as he would not know what to say to the lawyer. Again, he wanted a lawyer that his parents approved of.

[64] Mr. Treliving candidly acknowledged that the officer was respectful and he felt comfortable or at least he respected the officer. He never told the officer that he wanted to call his parents for the purposes of getting a lawyer because he was “shook up from the crash”. He also indicated that one of the reasons why he did not tell him specifically why he wanted to call his parents was because he assumed it was a “common thing raised by young people who were living with their parents”.

[65] Mr. Treliving had had his licence at the time for about three or four months and testified his training involved the requirement that if he was in an accident he had to point out he was the driver. He agreed that at the scene he had not seen the officer until the officer arrived. He did not call for the police and did not know the police had been called.

[66] He agreed the officer asked about injuries and then asked who was driving, and he had no issue responding to that. He was cross-examined thoroughly with respect to the “requirement” that he had referred to and agreed with the Crown that he wanted to be sure the officer knew his version of the events, particularly as he had ended up in this situation because of some other driver and it made sense that he would want the officer to know what happened. When that was put to him by the Crown he agreed.

[67] He indicated he had not called his parents at the detachment nor requested to call even though he felt comfortable with the officer and in fact asked the officer for advice about calling a lawyer. He had in his mind been turned down once and assumed that was the end of the call to his parents effectively. He did not specifically want to tell his parents about the accident but knew he had to.

[68] Finally, the Crown questioned Mr. Treliving in an attempt to get him to acknowledge that, notwithstanding his feeling there was a requirement he provide confirmation he was the driver to the officer, even if he was not required to do so he would have done so in any event. He agreed that he had no problem informing the officer and his goal was to be as helpful as possible and give as much information as possible to the officer. The following exchange then took place with the Crown and Mr. Treliving:

“Question: So my question is, Mr. Treliving, even if you didn’t have a lawful requirement to report you would have gone ahead and provided that information to Officer Valcanoff because that’s the kind of person you are?

Answer: He’s an officer. I’m supposed to.

Question: Even if you didn’t have to, if you weren’t supposed to you would have gone ahead and offered it anyhow because that’s who you are? That’s the kind of person you are?

Answer: Not necessarily.

Question: Okay. Explain that.

Answer: If it was a different circumstance?

Question: I’m talking about the exact same circumstance.

Answer: Yeah, I’d probably end up still.

Question: You would probably end up still, what?

Answer: Telling him what exactly happened.”

ISSUES TO BE DETERMINED:

[69] Initially the issues to be determined relate to the application with respect to the alleged Charter violations and involve:

(1) The determination of whether or not the utterance made by Mr. Treliving to Constable Valcanoff that he was the driver of the vehicle can form part of the basis for the officer’s grounds for arrest. This requires a determination of whether or not the utterance was made as a result of statutory compulsion.

(2) The determination of whether or not Mr. Treliving’s right to retain and instruct counsel pursuant to s. 10(b) was violated as a result of the officer’s failure to permit Mr. Treliving to call his parents.

(3) The Crown concedes that if the court finds there has in fact been a s. 7 breach there were no further grounds Constable Valcanoff could have relied upon that Mr. Treliving was the driver of the vehicle. The Crown reasonably submits that absent that admission the officer did not have the reasonable and probable grounds necessary to effect an arrest nor make a demand.

(4) If the court finds there has been a breach or breaches what remedy, if any, is available under s. 24(1) and/or s. 24(2) of the Charter.

ANALYSIS OF LAW AND FACTS:

[70] Dealing with the Charter issues where an individual such as Mr. Treliving alleges that a right guaranteed by the Charter has been violated the onus is on that party to prove the violation complained of on a balance of probabilities.

[71] As noted in Regina v. Collins, 1987 CanLII 84 (SCC), 1 S.C.R. 265 at page 277:

“The appellant, in my view, bears the burden of persuading the court that her Charter rights or freedoms have been infringed or denied. That appears from the wording of s. 24(1) and (2), and most courts which have considered the issue have come to that conclusion. The appellant also bears the initial burden of presenting evidence. The standard of persuasion required is only the civil standard of the balance of probabilities and, because of this, the allocation of the burden of persuasion means only that, in a case where the evidence does not establish whether or not the appellant's rights were infringed, the court must conclude that they were not.”

[72] The burden of proof then in this matter lies initially with Mr. Treliving on the balance of probabilities which is the degree of proof required in civil actions. The standard of balance of probabilities has also been referred to as “proof of a preponderance of probabilities” or a “proof on a preponderance of evidence”. This onus is different than the onus resting on the Crown to prove the guilt of an accused beyond a reasonable doubt which has been acknowledged in numerous cases to be a higher standard of proof.

[73] With respect to the degree of probability required to discharge the burden of proof on Mr. Treliving, the test to be applied has been articulated as a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say “we think it is more probable than not” then the burden is discharged, but if the probabilities are equal it is not. For the purposes of dealing with the burden, the standard of proof is not beyond a reasonable doubt and it is clear from the case law that the analysis set out in W.(D.) is not applicable.

(a) Is the utterance of Mr. Treliving to the officer initially that he was the driver of the vehicle admissible for the purpose of forming grounds for the arrest?

[74] The determination of this particular issue requires the court to determine whether or not the admission that Mr. Treliving was the driver of the vehicle was one that was compelled by statute. Defence takes the position that in fact that utterance was compelled by statute and therefore cannot be relied upon by Constable Valcanoff in the formation of his grounds to arrest the accused for the offences before the court. Absent the necessary grounds to conclude that Mr. Treliving was the driver of the vehicle the defence submits that s. 7 and s. 8 and s. 9 have effectively been violated, the accused was arbitrarily detained and any statements made by Mr. Treliving thereafter as well as the results of the breath tests should be excluded pursuant to s. 24(1), or alternatively, s. 24(2) of the Charter.

[75] The principles with respect to admissions compelled by statute have been reviewed recently by the Ontario Court of Appeal in Regina v. Soules, 2011 ONCA 429, [2011] O.J. No. 2500. That decision has also been considered in Regina v. Parol, 2011 ONCJ 292, [2011] O.J. No. 2641. Previously, the Supreme Court of Canada has dealt with such admissions or statements in Regina v. White, 1999 CanLII 689 (SCC), 2 S.C.R. 417, a decision considered and followed in Regina v. Powers, 2006 BCCA 454, 213 C.C.C. (3d) 351.

[76] In Regina v. White, supra, the Supreme Court of Canada dealt with the impact of an accused providing statements under compulsion in a highway traffic report required under provincial legislation. There, the legislation was provincial legislation from British Columbia which contained similar provisions to s. 199 and s. 200 of the Ontario Highway Traffic Act. The issue there specifically was the admissibility of such statements in ensuing criminal proceedings.

[77] In Regina v. White the accused had been involved in a motor vehicle accident where the victim had been struck and killed and the accused had left the scene of the accident in her motor vehicle. The next day the accused reported the accident to the police and the police had attended at the home of the accused who provided her version of the events to the police. The accused provided a series of three separate statements to the police purportedly as a result of her statutory duty to do so. The statements were alleged to be admissible by the Crown in subsequent criminal proceedings whereas the defendant argued that to admit such statutorily compelled utterances would offend the principles of self-incrimination as set out in s. 7 of the Charter.

[78] The trial judge agreed with that argument and excluded the evidence. Those decisions were upheld on appeal and ultimately a Crown appeal was dismissed by the Supreme Court of Canada.

[79] The Supreme Court found that the statements had been made under compulsion and that to admit such statements in a criminal trial would violate s. 7 of the Charter. During the course of the reasoning in that particular case the Supreme Court indicated the test for compulsion under the relevant provincial statute was whether at the time the accident was reported by the driver the driver gave the report on the basis of an honest and reasonably held belief that he or she was required by law to report the accident to the person to whom the report was given. The basis of subjective belief exists because compulsion implies an absence of consent and the requirement that that belief be reasonably held relates to the meaning of compulsion. The court also indicated that the Crown does not bear the onus of establishing that an accident report was not made pursuant to the statutory duty to report, rather the onus rests on an accused raising the Charter challenge to establish an infringement of his or her rights on a balance of probabilities. The court noted that if an accident report is given freely without believing or being influenced by the fact that he or she was required by law to do so then it cannot be said that the statute is the cause of the statements being made.

[80] The court further commented that the requirement the driver have an honest belief reasonably held does not mean the driver must have had as a strict matter of law a statutory duty to report the accident. The Supreme Court agreed with the trial court that it may be reasonable for a driver to believe that he or she is required to report an accident even where the damage caused by the accident is not sufficient to trigger the report under the provincial legislation.

[81] In Regina v. Powers, again a decision from British Columbia, the court there followed the reasoning in White and excluded utterances made by an accused to an attending officer after a collision including a statement that he had been the driver of the vehicle. The Court of Appeal upheld the trial decision there where the evidence of the accused had been accepted that he had identified himself as the driver because he felt he was required to do so.

[82] In Regina v. Soules, during an accident investigation the respondent identified himself as the driver and admitted having consumed alcohol. He subsequently failed an approved screening device test and was charged with over 80. At trial the accused testified that he remained on scene and answered the officer’s questions because he understood he was required to do so by law as when in an accident you should always remain until one or more police officers have come and completed their investigations. The trial court, upheld on appeal, found that those admissions were compelled by statute, and excluded the results of the approved screening device and the breath results as there was no reasonable suspicion then to make the demand absent the admissions.

[83] The Court of Appeal effectively followed the reasoning in White and Powers and indicated the statutorily compelled admission from Mr. Soules that he was the operator of the vehicle was not admissible for the purpose of establishing grounds for either making the approved screening device demand nor the breath demand.

[84] In Soules as well the court addressed the Crown’s argument that given the interpretation of the law flowing from White and Powers there is the “potential to cripple the investigation of drinking and driving offences where a collision has occurred”. The Court of Appeal referred to White where it was accepted the provisions might create a logistical difficulty for the police and the court there in fact had gone on at some length to indicate other ways in which police might investigate so as to obtain information independently of the accident report which is the subject of the immunity. The Supreme Court had suggested an officer could inform a driver that they intend to secure details for the accident report from sources other than the driver, thereby terminating the statutory duty to report, or they could advise the driver that they would postpone the taking of an accident report until they have completed their questioning otherwise.

[85] In Regina v. Parol the court provided its analysis of the principles set out in Soules and White and the principle of statutory compulsion. The court also addressed the distinction between one believing that they should co-operate with the police and such compulsion.

[86] In Regina v. Parol the court properly indicated that the applicant must establish on a balance of probabilities that the admission he was the driver was “compelled by statute” and made under that belief. That includes:

(1) That he was in fact compelled by statute to provide a report.

(2) That the statements he made were a “report” within the meaning of the compelling statute.

(3) That he gave his report with the honest and reasonable belief he was compelled by the statute to do so.

The court there felt if the report could not reasonably be considered to be an “accident report” a claim by an applicant that he thought he was compelled to make it because of an accident reporting statute would not be reasonable nor credible.

[87] In Parol there had been a minor single motor vehicle accident and the police arrived on the scene. The defendant had not called the police to “report the accident” and had no plan to do so, although he believed someone else had called the police. There was some language issue at the scene but there was a brief exchange between the officer and the accused wherein the defendant had indicated that he had been driving the vehicle and had been drinking, all of which was used ultimately to compel breath tests which exceeded the legal limit.

[88] In analyzing the required items to be established, the court there found that exchange did not amount to an accident report and noted it would be “absurd to think that the street exchange described above amounted to the making of an accident report”. The court also found there was no compulsion to provide a statement under the legislation because of the absence of evidence as to quantum of damage and the fact that there had not been an injury. Finally, the court found the accused did not have an honest and reasonable belief that he felt he was compelled and the evidence fell short of satisfying the onus on the accused. The court made the finding based on the facts it had before it and noted, quite appropriately, that the decisions in both White and Powers had resulted from credibility-based findings of fact made at trial level. The trial courts there had found that the applicants in those cases had established on a balance of probabilities that the statements made were made pursuant to compulsion of a provincial statute, i.e., they were accident reports and believed to be so at the time the utterances were made. The reasoning in Parol makes very good sense when the court states as follows:

“It seems to me that it would be a stretch beyond the breaking point to consider this exchange as the making of a report within the meaning of the statute. It does not fit the ordinary meaning of the word or the concept of reporting. The Court in White made the distinction between the making of a report pursuant to statute and ‘ordinary police investigation’. Nothing could be more ordinary and natural than a police officer arriving at the scene of an accident and asking who was driving. If the exchange in issue here is considered a ‘report’ then the ‘dividing line’ drawn by the Court in White would be completely obliterated.”

[89] For the determination of this issue I find the facts to be as follows:

(1) A motor vehicle accident occurred on April 3, 2011 at approximately 6:13 a.m. on a ramp leading from Fairway Road to Highway 8 in the City of Kitchener.

(2) The motor vehicle found by the police rolled over, coming to rest down an embankment on its roof.

(3) There were two occupants of the vehicle, a white male identified as Mr. Treliving and a black male who were observed by a civilian who had stopped to assist. A brief conversation took place between that civilian and Mr. Treliving at which time no injuries were reported, nor was a request made to call police. The civilian went back to his vehicle, placed a call to the police without any request by Mr. Treliving nor to the knowledge of Mr. Treliving.

(4) The police arrived at or about the time of that call and Constable Valcanoff observed the motor vehicle down the embankment and called for an ambulance. He approached Mr. Treliving and the other male after going down the embankment and asked if there were any injuries and when there were not he called off the ambulance. He then asked who was driving the motor vehicle and Mr. Treliving responded that he was.

(5) I find that there were no other questions leading to the question involving who was the driver of the vehicle other than the inquiry with respect to injuries. I also find that nothing was said by Constable Valcanoff to indicate to Mr. Treliving or to anyone that he was in fact embarking on the preparation of a report concerning the accident. Nor was anything said by the officer to indicate to Mr. Treliving that he was required to respond to the questions asked.

(6) Specifically, I do not find that Mr. Treliving approached the officer and volunteered the information that he was the driver as suggested in the application and I find it was the officer who approached and the admission as to who was driving was only made after the officer asked the question.

(7) I find that when the officer approached Mr. Treliving and the other male were engaged in a verbal argument and did not seem to be aware of his presence initially.

(8) I find that the observations and further information received from Mr. Treliving following the admission as to the fact that he was the driver of the vehicle ultimately led to the arrest of Mr. Treliving at or about 6:14 a.m.

(9) I find that at no time did Constable Valcanoff complete an “accident report” and the only “accident report” completed in this matter was that completed by Constable Adams who arrived at the scene at 6:27 a.m. and who had no contact with Mr. Treliving.

[90] Given the facts as set out I also note that in determining this issue I have considered the evidence carefully of Mr. Treliving with respect to the reason he stated he advised the officer he was the operator of the vehicle. In examination-in-chief he stated he had provided that information as he had been taught that if you are in an accident you must report you are the driver to a police officer. Apparently, this training took place during the course of driver education and that was the initial position of Mr. Treliving as to why he disclosed that fact. However, during the course of cross-examination it became apparent that that information would in fact have been disclosed in any event and that if Mr. Treliving had in fact an opportunity to revisit the entire evening he would have, as he put it, ended up “telling him what exactly happened”.

[91] It is difficult to accept Mr. Treliving’s position that he told the officer he was driving because he had been trained to do so given his waffling somewhat on that issue during the course of cross-examination and also considering the following:

(1) The exchange with the officer from the time of arrival to the time of arrest appears to be very short and indeed could be as little as a minute.

(2) Mr. Treliving’s main concern appeared to be extricating himself from the vehicle and arguing with or perhaps responding to the argument initiated by his colleague at the scene to the point where he did not seem to be aware of the officer until, on his own evidence even, the officer was coming down the embankment.

(3) There was never a request by Mr. Treliving to have the civilian call the police nor did he attempt to call the police himself. Indeed, the civilian was of the view that Mr. Treliving was not even aware that he was calling the police.

(4) Mr. Treliving was not asked to make a report and the utterance was not made in the context of a report being provided.

(5) The officer was friendly in his approach, concerned about any injuries and I find simply asked the question as to who driving because it would appear to be an obvious question to ask in the circumstances given the location of the vehicle and the extent of the apparent damage to the car. In fact, Mr. Treliving seemed quite anxious to convey his side of the story ultimately to Constable Valcanoff as to how the vehicle got where it was.

[92] Given all of the above and the entire set of circumstances there is little in the evidence to assist the court in finding that the utterance made by Mr. Treliving was based on a reasonable and honest belief that he had an obligation to do so and for no other reason. He might have felt he had an obligation but, in my view, given the rapidity within which the entire event took place and the circumstances under which the utterance was made it is a stretch to say Mr. Treliving had it foremost in his mind that he was to report to the police because he had been trained to do so.

[93] Further, the evidence here does not speak of actual compulsion. The case law deals with compelled statements. In White the individual had actually left the scene and called the next day to report the accident and subsequent accident reports were thereafter completed. In Soules the evidence accepted by the court was that of Mr. Soules who testified he had remained at the scene of the accident because he felt he had an obligation to report it. Here, the incident takes place so quickly and the police arrive so shortly thereafter that the circumstances do not speak of a report with respect to an accident but simply to the initial stages of an investigation to find out what happened.

[94] Here, the court does not find that the exchange between the officer and Mr. Treliving initially was a report at all. The exchange was in fact the very type of exchange the court referred to in Parol and not the type of report contemplated at all in either Soules or White. The accident report was in fact ultimately completed by another officer who had no contact with Mr. Treliving during the course of its preparation. The only information provided by Mr. Treliving to Constable Valcanoff up to the point of acknowledgement of he being the driver was that he was not injured. There is nothing else reported at all and there was nothing preceding nor thereafter that would indicate Constable Valcanoff was in the process of completing the report contemplated by the legislation.

[95] I find the utterance that he was the driver was not made as a report within the meaning of the compelling statute and, further, his utterance was not made with the honest and reasonable belief that he was compelled by statute to do so.

[96] As a result, I find that Mr. Treliving has not satisfied the onus to establish on a balance of probabilities that his s. 7 rights have been violated and as a result the application that relates to that issue will be dismissed.

(b) Were the applicant’s rights under s. 10(b) of the Charter violated?

[97] The determination of this particular issue evolves from the request of the applicant to speak to his parents. In this particular case, rights to counsel were given at the scene and at the detachment. The Crown concedes that the failure of the applicant to respond ultimately to the right to counsel at the scene does not constitute a waiver. The Crown does not seek to rely on any utterances regarding the accident made following the breath demand at the roadside nor any utterances that may have been made during the course of the stay at the scene nor during the trip to the detachment regarding the accident. The Crown, however, does take the position that following the arrival at the detachment and the further reading of rights to counsel there was an appropriate waiver that constituted a fulfillment of the obligation on the officer and any evidence obtained thereafter is admissible.

[98] Dealing with the “parent issue” at the scene, the Crown also reasonably and rightfully does not take issue with the fact that Mr. Treliving is entitled to contact a third party in order to facilitate his right to counsel. The Crown does take issue with respect to the diligence of the accused in exercising that right but acknowledges the case law clearly supports the principle that the right to retain and instruct counsel includes an ability by an accused to communicate with somebody other than a lawyer to assist in exercising that right.

[99] Here, the real issue is whether or not there is a breach of s. 10(b) where Mr. Treliving apparently asked to call a third party but does not explain, even on his own evidence, that the purpose of the call was related to the contacting of a lawyer.

[100] The police have both an informational and implementational duty in relation to the rights to counsel. If an accused indicates a desire to call counsel, a reasonable opportunity should be given until that right has been exercised. However, the case law also states that an accused must be reasonably diligent in exercising that right.

[101] In Regina v. Ross, 1989 CanLII 134 (SCC), 46 C.C.C. (3d) 129 (S.C.C.), at paragraph 135 the court indicated:

“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 CanLII 28 (SCC), 37 C.C.C. (3d) 565, 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, 1987 CanLII 67 (SCC), 34 C.C.C. (3d) 385, 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.”

[102] In looking at this particular issue the court has looked at the totality of the circumstances surrounding not only the rights to counsel but the circumstances involving the interaction of Mr. Treliving and Constable Valcanoff. It is pretty clear from the evidence of Mr. Treliving as well as Constable Valcanoff and after having had an opportunity of reviewing the video capturing their interaction at the detachment that Constable Valcanoff treated Mr. Treliving in a fair and reasonable manner. It is also clear that Mr. Treliving was quite comfortable in the presence of Constable Valcanoff and appears to have been open and candid during conversations with him, just as Constable Valcanoff was with Mr. Treliving.

[103] Mr. Treliving showed no signs of anxiety in his interaction with Constable Valcanoff. There is no evidence of any conduct on the part of Constable Valcanoff that would give Mr. Treliving rise to fear repercussions if he did not co-operate or that created an atmosphere of oppression.

[104] Mr. Treliving had an excellent rapport with Constable Valcanoff and Constable Valcanoff with him. The exchange that I have viewed on the video and heard in evidence from both Mr. Treliving and Constable Valcanoff confirms the nature of that interaction.

[105] Mr. Treliving was comfortable to the point where he made casual remarks concerning wanting to get a coffee on the way to the detachment, “loving that song” and wanting a book to read while in the interview room because he was bored. Constable Valcanoff was quite approachable and casual in his interaction with Mr. Treliving, even indicating at the point when asking questions with respect to the alcohol influence report that Mr. Treliving could tell him to “screw off” if he wanted to with respect to the answering of questions. Further, is it important to note that Constable Valcanoff provided information to Mr. Treliving when requested but it is equally clear that the ultimate decision by Mr. Treliving not to contact counsel was his own.

[106] The Crown has acknowledged that Mr. Treliving had a right to contact a third party to assist in exercising his rights to counsel. If there is a concern about Constable Valcanoff’s evidence at all it is surrounding this initial mention of parents during the course of reading rights to counsel. With respect to that, it would seem quite clear that the issue of contact with parents came up in the context of and during the course of the reading of rights to counsel and asking Mr. Treliving if he wished to contact counsel. It was not a statement made before rights to counsel or out of the blue. It was a statement made in the context of a discussion about contacting counsel. The logical inference which might have been drawn by Constable Valcanoff was that the request to call the parents might have had something to do with the issue of contacting counsel.

[107] However, an equally reasonable inference may in fact be, notwithstanding the placement of that request, the very inference that Constable Valcanoff stated under oath that he drew. That is, he would have thought of calling his own parents if he had been in that situation to indicate to them that he had been involved in an accident but was fine. That inference in my view is as reasonable as the inference the defence wishes the court to draw that the request to call his parents by Mr. Treliving could mean nothing else than contacting his parents to assist in him contacting counsel. I accept Constable Valcanoff’s view may not appear to be as reasonable when in cross-examination he indicated he told Mr. Treliving that he was an adult and could not call his parents, but that comment ultimately I find could be appropriate given his understanding of what Mr. Treliving might have meant notwithstanding when he said it, i.e. during the rights to counsel being provided.

[108] I note as well that Mr. Treliving never indicated at that time, or ever in fact, the reason for his request to call his parents. Indeed, his comments adjoining that request was he “didn’t know what to say”.

[109] Both Mr. Treliving and Constable Valcanoff talk about the officer re-entering into the options following the apparent comment. Mr. Treliving does not recall much of anything else being said, whereas the officer indicated in cross-examination he in fact advised Mr. Treliving that he could not call his parents because he was an adult. That particular exchange seems the more logical and if in fact that was said, as I find it was, then Mr. Treliving reasonably would have responded by telling the officer why he wished to call his parents but he did not.

[110] Whatever scenario was in place in any event, it is clear on the evidence that Mr. Treliving did not advise the officer as to the purpose of the call to his parents other then the general statement that he did not know what to say.

[111] The Crown acknowledges that there was no response to whether or not Mr. Treliving wished to call counsel or duty counsel at that time and there was no waiver at the scene notwithstanding the officer’s position at the detachment that he gave the second rights to counsel because of the previous declining of counsel. There was no previous declining and the Crown does not seek to rely on anything that took place after the rights to counsel at the scene and the arrival at the detachment.

[112] At the detachment it is a different story. Mr. Treliving was placed in an interview room, was re-read his rights to counsel and said nothing about his parents at that point. The officer does nothing to pressure Mr. Treliving, gave him the proper options and then even gave him an opportunity to consider the matter and left the room for approximately five minutes.

[113] It is upon his return to the room that Mr. Treliving has now considered the matter further, makes no mention again of his wish to call his parents to assist him in making that decision and then asks for advice which the officer indicates he cannot provide. The officer does indicate to Mr. Treliving what might be the usual situation depending on the readings, etc. Mr. Treliving considers that matter and then basically makes his mind up about counsel and says, “Let’s go do the tests” or words to that effect. At no time during the exchange at the detachment had Mr. Treliving re-visited the issue of parents.

[114] Mr. Treliving appears to be relaxed, comfortable and there is nothing effectively in his demeanour or his questioning that would reasonably cause Constable Valcanoff to inquire further about the call to his parents. There is no duty on the police to inquire as to the purpose of third party calls and Mr. Treliving did nothing to assist the officer in fully understanding why he wished to call his parents. Mr. Treliving stated he did not mention it again because he had already been told no, although he did not seem to recall exactly what the officer had said during the course of his evidence. But, even accepting that was his feeling, there is nothing in the evidence whatsoever to indicate that Constable Valcanoff would not have taken the necessary steps to contact the parents if Mr. Treliving had been more forthcoming in why that call should be placed.

[115] Constable Valcanoff, nor indeed any police officer, cannot be a mind-reader in these circumstances and the police are not required to play Twenty Questions. The contact with the officer had, after looking at all of the evidence and viewing the video, been relaxed, comfortable and helpful. Mr. Treliving did not provide any further information to the officer other than the initial request in circumstances which involve more than one reasonable inference and, as a result the court finds that he was not reasonably diligent in exercising his right to call a third party to assist him in exercising his right to counsel.

[116] Defence counsel takes the position that because of apparent Waterloo Regional Police policy third parties are not allowed to be contacted. The court does not believe the officer’s evidence went that far. The officer indicated that a supervisor had provided instructions and his understanding of the instructions were that if a request to contact a third party to assist in contacting counsel is made that contact to the third party is appropriate but the contact itself is made by the officer, not the individual requesting the contact. That contact is also related only to the issue of assisting in contacting counsel ultimately and that information is obtained by the officer from the third party and then relayed to an accused. I do not find the evidence establishes the defence position that contact with third parties is prohibited as a policy of the Waterloo Regional Police Services. If such a policy does exist, the matter should be certainly re-visited by the police but I find the evidence does not go that far here and, even if that is in fact the policy, for the purposes of this particular matter it is clear that Mr. Treliving was not diligent in advising Constable Valcanoff fully the reason for the contact to the third party.

[117] The re-visiting of the rights to counsel at the detachment was informative, helpful, provided without any pressure whatsoever and Mr. Treliving made an informed decision not to call counsel.

[118] Having so found, the applicant has not met the onus on this particular matter and the application as it relates to s. 10(b) will be dismissed.

Released: January 30, 2012

Signed: “Justice G. F. Hearn”