Court Information

Ontario Court of Justice Central West Region Brampton, Ontario

Between:

Her Majesty the Queen

-and-

Fernand Pelletier

Reasons for Judgment

Judge: Duncan J.

Facts

[1] The defendant is charged with exceed 80, offence date November 30, 2011. He has defended the case on Charter grounds, arguing that he was subjected to unreasonable search and seizure (section 8) and that his right to counsel was infringed or denied (10b).

[2] The defendant was stopped at a RIDE check stop just after 9 pm. When asked about drinking he said "I had a couple of glasses of wine with dinner" and that his last drink was about half an hour earlier. The investigating officer, PC Frenzel, said that he formed the suspicion that the driver "had been drinking alcohol" and intended to give him a roadside screening test. He then read a demand – but the demand given was in the words of the Intoxilizer demand, not the screening test demand. The defendant was then presented with the ASD and blew a "fail". He was then arrested at 9:09 pm and given a second demand in identical terms to the first.

[3] Upon arrest the defendant was read his rights to counsel. When asked, he said he did want to call a lawyer. Initially at the scene he said that he did not have a specific lawyer that he wanted to call. On arrival at the police station, the officer placed a call to duty counsel at 9:44 and left a message. The defendant also asked to look through a lawyer's directory to find any lawyers he might wish to call, chose one called Ott Legal Services and another one, Lapid, whose name he may have retrieved from his smart phone. Calls were placed by the officer and a message left at 9:50 for Ott and at 9:53 for Lapid. At 9:51 duty counsel called back and spoke to the defendant until 9:56. The police waited for call-back from the other counsel for 30 minutes and then had him provide samples at 10:23 and 10:45, disclosing BAC of 112 and 102 respectively. Neither lawyer called back at any time.

Section 8: Unreasonable Search

[4] Counsel for the defendant, in a very thorough presentation, argues that there was a violation of section 8 in that the ultimate breath samples were demanded and obtained as a direct consequence of a flawed, and therefore unlawful, roadside screening procedure. He argues that the officer formed the wrong suspicion and gave the wrong demand.

[5] The argument is correct in a narrow sense but not in substance, in my view. While it is true that a suspicion that the defendant "had been drinking alcohol" is not always the equivalent of a suspicion that he "has alcohol in his body", the difference disappears when there is evidence, as here, that the alcohol had been recently consumed. While his suspicion was poorly and imprecisely stated, with the evidence available to him, the officer would necessarily have had the suspicion that the defendant may have had alcohol in his body. As for the wrong demand being read, that too is a matter of no substance. The demand that was given, though wrong, unambiguously conveyed that a breath sample was being demanded. The defendant complied and the appropriate screening test was then conducted.

[6] Even if these investigative anomalies can be considered illegalities and even if those illegalities can be inflated into constitutional breaches, the breaches come nowhere close to justifying exclusion. They are not serious and the impact on the defendant's Charter rights is non-existent. The defendant was legally eligible to be subjected to the procedures that took place. He was not affected, much less prejudiced, by what occurred.

Section 10(b): Right to Counsel

[7] It is further argued that the defendant's right to counsel was breached. It is said that the half hour that the police waited for lawyer call-back was insufficient. Before dealing with this specific argument, I think there is a more basic question - whether the defendant, having spoken to one lawyer, was entitled to that second consultation at all.

[8] The law on access to counsel of choice in the breathalyzer context is fully described in R v Blackett [2006] OJ No 2999 (Ont S.C) and R v Kumarasamy [2002] O.J. No 303 (Ont SC). Most of these cases deal with an initial request to speak to named counsel that goes unfulfilled with either a default consultation with duty counsel or an offer of same, which is refused.

[9] The present case is somewhat different in that, in initially requesting counsel but not a specific counsel, the defendant was effectively requesting or making a choice for duty counsel. While waiting for duty counsel to call back he requested named counsel; while calls were being placed, he spoke to duty counsel. The most favourable characterization for the defendant of what occurred is that he made what amounted to a more or less simultaneous request to seek legal advice from two possible sources – duty counsel and named counsel. Both could be said to be counsel of his choice. Was he requesting both or either? If it was either, his request was clearly satisfied. There is no evidence that he expressed dissatisfaction with duty counsel or that, after speaking to duty counsel, he asked for further consultation with named counsel. However, I am again prepared to give him the most favourable interpretation of the evidence and consider that he was requesting both.

[10] This then brings up the neat question: Where a detainee for breath testing asks to speak to lawyers A and B, is he entitled to consult both, or, to put it another way, are the police obliged to "hold off" until he can have that second consultation? The relatively recent decision of the Supreme Court of Canada in R v Sinclair 2010 SCC 35 suggests not. While the facts there involved interrogation of a murder suspect and the second requested consultation was with the same lawyer, the Court's comments have some relevance in the present context:

43 The authorities suggest that normally, s. 10(b) affords the detainee a single consultation with a lawyer. However, they also recognize that in some circumstances, a further opportunity to consult a lawyer may be constitutionally required. These circumstances, as discussed more fully below, generally involve a material change in the detainee's situation after the initial consultation. (Par 43)

53 The general principle underlying the cases discussed above is this: where a detainee has already retained legal advice, the implementational duty on the police under s. 10(b) includes an obligation to provide the detainee with a reasonable opportunity to consult counsel again where a change of circumstances makes this necessary to fulfill the purpose of s. 10(b) of the Charter of providing the detainee with legal advice on his choice of whether to cooperate with the police investigation or decline to do so.

54 The cases thus far offer examples of situations where the right of another consultation arises. However, the categories are not closed. Where the circumstances do not fall into a situation previously recognized, the question is whether a further opportunity to consult a lawyer is necessary to fulfill s. 10(b)'s purpose of providing the detainee with advice in the new or emergent situation.

55 The change of circumstances, the cases suggest, must be objectively observable in order to trigger additional implementational duties for the police. It is not enough for the accused to assert, after the fact, that he was confused or needed help, absent objective indicators that renewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so.

[11] To this one might add; If the detainee has a right to consult both in a two lawyer scenario, why stop there? Why not all, if consultation with three or six or ten is requested? The issue always comes back to whether the detainee has been given a reasonable opportunity to retain and instruct counsel. It is his onus to establish that such opportunity was denied to him. Where he has spoken to one lawyer[^1] and there is nothing in the evidence to suggest otherwise, it must be concluded that there has been a reasonable opportunity and no infringement of his right to counsel, even if he has a further request.

[12] In my view, in the circumstances of this case, the police were not required to "hold off" at all.

[13] However, if I am wrong in this conclusion, it is my view that the police officers properly concluded that, after half an hour, they had waited a reasonable time. It is argued that there was still almost 40 minutes to go before the two hour mark was reached. But no case law that I am aware of supports the notion that police are obliged to wait until almost the last minute in the two hour period. While the two hour presumption time may be a consideration, it is not the only one. The samples must be taken as soon as practicable and, apart from that, there is intrinsic merit to taking samples that will more accurately represent the BAC at the time of driving. The very experienced qualified technician, PC Holmes, considered these points as well as the faint hope that the lawyer would call back. He might well have also considered that the defendant had already spoken to duty counsel and that police officers have other duties to attend to and should not be obliged to spend an inordinate length of time waiting idly for the phone to ring. The right to counsel argument is rejected.

Judgment

[14] The offence has been proven beyond a reasonable doubt. The defendant is found guilty.

March 18, 2013

B Duncan J.

Counsel:

• M. Montes for the defendant
• J Sone for the Crown

[^1] I make no distinction between situations where one of the lawyers is duty counsel as opposed to a private lawyer. Duty counsel is assumed to be competent. Indeed, given that the breath testing situation must undoubtedly be a large part of their duties, it would be safe to assume some expertise in this area.