Court Information

Court File No.: Toronto Region Ontario Court of Justice

Between: Her Majesty the Queen G. Karding, for the Crown

— And —

Richard Fagon D. Rombis, for the accused

Heard: December 13, 2013, January 13, 2014

Before: Feldman J.

Introduction

[1] Richard Fagon entered a not guilty plea to Operation Over 80. It is alleged that following a RIDE Check investigation, he was found to have been driving his motor vehicle with more than the legal limit of alcohol in his blood system.

[2] The defence did not call evidence. It has brought a s. 24(2) application under the Charter of Rights and Freedoms to have Mr. Fagon's breath readings excluded on the basis that the police placed an unreasonable time limit on the defendant's ability to exercise his rights to counsel contrary to s. 10(b).

The Evidence

[3] On December 19, 2012, P.C. Laurent Bellion was conducting a RIDE Check operation on Meadowvale Rd. near Shephard Ave. in Scarborough. He was watching the northbound lanes. At 9:51 p.m., the officer's attention was drawn to the accused, who initially stopped his vehicle in front of the RIDE Check sign, then moved to the curb lane and again came to a stop 15 metres in front of the sign. The defendant complied with the officer's direction to pull over.

[4] P.C. Bellion leaned into the driver's window and smelled the odour of alcohol from inside the vehicle. When asked how much alcohol he had consumed, the accused muttered to himself, "this is not good" and then admitted to a couple of beers. He said he had his last drink around 8 p.m. The officer could now smell alcohol on the defendant's breath. Asked to provide his identifying documents, Mr. Fagon, according to the officer, had difficulty finding his driver's license.

[5] In the circumstances, P.C. Bellion felt there was a reasonable suspicion the driver had alcohol in his system. At 9:53 p.m., he made a demand for a roadside sample of the accused's breath. Mr. Fagon asked if he could refuse at the same time as he was leaning back away from the open window. He was advised of the consequences of refusing to provide a sample of his breath. At 9:54 p.m., the defendant agreed to accompany the officer for a roadside breath test.

[6] At the nearby police trailer, P.C. Bellion had the accused provide a sample of his breath into an Alcotest instrument [ASD]. Mr. Fagon registered a Fail, which provided the reasonable and probable grounds for his arrest at 9:56 p.m.

[7] The defendant was given his rights to counsel a minute later. He asked for a moment to think about it. He used his own cell phone to call his wife in order to get his lawyer's London-area phone number. When he called there was no answer. The officer asked him to call again and leave a message, but was informed there was no such option. In the circumstances, P.C. Bellion made an offer to call duty counsel, one accepted by the defendant.

[8] At 10:02 p.m., the officer read the accused a breathalyser demand. He then placed a call at 10:05 p.m. to duty counsel who phoned back 8 minutes later. Mr. Fagon spoke to duty counsel in private until 10:17 p.m. According to the officer, the defendant advised him that he was satisfied with the advice he had received.

[9] Mr. Fagon then asked to speak to his present counsel and provided his phone number. It is apparent he had access to his own phone and was seen to be texting freely. He called Mr. Rombis at 10:18 p.m. but received no answer. The officer had him call back and leave a message that included the phone number to the RIDE truck.

[10] At 10:20 p.m., P.C. Bellion told the accused he would wait 15 minutes for a call back from counsel after which he would turn him over to a breathalyzer technician for testing, although he said he would interrupt the process if the lawyer returned his call. P.C. Bellion felt that 15 minutes was reasonable in the circumstances given the access to duty counsel and the likelihood that private counsel was not yet in bed for the night.

[11] It is helpful to view this time limit in its statutory context. Under Code s. 258(1)(c)(ii), it is mandatory that the first breath test be taken within two hours of the demand, that is, in this case, by 12:02 a.m., although the police need be mindful that the tests are to be taken as soon as practicable in the circumstances on a reasonableness standard: R. v. Vanderbruggen (2006), 206 C.C.C. (3d) 489 (Ont. C.A.).

[12] The accused was placed in the custody of the breathalyser operator at 10:35 p.m. The first sample was completed at 10:45 p.m. with the result being one over the legal limit. Counsel had still not called back. Mr. Fagon was returned to the report room and brought back for his second breath test at 11:04 p.m. The process was finished at 11:11 p.m. There was still no call from counsel either on the defendant's blackberry or to the RIDE truck.

[13] The results of the two tests were 169 mgs. and 176 mgs., respectively. Mr. Fagon left the truck at 11:37 p.m. His family was waiting there to pick him up. There was still no call from counsel at the point the officer signed off duty at 3 a.m.

Positions of the Parties

[14] Mr. Rombis, for the accused, submits that given the 2-hour frame available for the breath tests and the lack of investigative urgency, the officer placed an unreasonable time limit on the defendant's ability to exercise his rights to counsel, breaching his s. 10(b) Charter rights. He says that the officer did not act in good faith and that in the circumstances, the breath readings should, following a Grant analysis, be excluded under s. 24(2): see R. v. Grant, 2009 SCC 32.

[15] Ms. Karding, for the prosecution, submits that the officer acted reasonably in the circumstances and in good faith. She points out that the defendant expressed satisfaction with the advice of duty counsel (although he subsequently sought to speak with private counsel), that he had use of his cell phone throughout, that the breathalyzer process would be interrupted in the event counsel called back and that the police had to find a balance as between reasonable opportunity to speak with counsel and completing the tests as soon as practicable given the challenge to the integrity of the results in the event of undue delay. She submits that the defence has not met its onus in Grant of establishing a Charter breach warranting exclusion of the evidence.

Analysis

[16] It is an accepted principle that the law requires a person who is detained by the police be afforded a reasonable opportunity to seek legal advice: R. v. Richfield, [2003] O.J. No. 3230 (Ont. C.A.). This applies in particular to counsel of choice: R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429. This constitutional right is a paramount right: R. v. Boyce, [2005] O.J. No. 2351 (Ont. S.C.).

[17] In determining whether there was a violation of the defendant's s. 10(b) rights in the case at bar, it is necessary to consider a number of questions that are fact specific and informed by principles set out in the authorities. These include whether or not the accused was fully informed of the extent of this right and the officer aware of the full extent of his obligation in this regard, whether in this case the officer waited a reasonable time for the defendant's lawyer to call back and whether, assuming a violation, it was more than trivial or inadvertent: see R. v. Zaidi, [2007] O.J. No. 4105 (Ont. C.J.); R. v. Samatar, [2011] O.J. No. 4613 (Ont. C.J.); R. v. Markovic, 2013 ONCJ 300, [2013] O.J. No. 2549 (Ont. C.J.); R. v. Alfardo-Delgardo, 2014 ONCJ 33.

[18] One significant fact in this case is that when it was apparent that the London-area lawyer had no voicemail, P.C. Bellion did not offer the accused an opportunity to contact another more local counsel, in my view, failing in his duty to meet the informational component of his detainee's rights to counsel. Instead, he suggested contact with duty counsel, a common police default position. This was accepted by the defendant and facilitated by the officer. In this regard, however, I attribute no bad faith to the police, rather, a lack of awareness of the full extent of his obligation.

[19] When asked, the accused told the officer he was satisfied with this advice, qualified in the evidence by the fact that he asked for another opportunity to speak with counsel of choice and provided Mr. Rombis's phone number.

[20] While there was no answer on counsel's line, P.C. Bellion made sure that the defendant left both his cell phone number and that at the RIDE trailer. But he told the accused that he would wait only 15 minutes for a call back. The officer told the court he reasoned that Mr. Fagon had already spoken to duty counsel and he felt, as well, that since the lawyer was not yet in bed he should be able to return the call within a reasonably prompt time.

[21] The time was 10:20 p.m. No call back was received by 10:35 p.m., at which point the officer placed Mr. Fagon in the custody of the breathalyser technician, although, as noted earlier, the first test only had to be completed before 12:02 a.m. in order to comply with the statutory 2-hour requirement. While the officer had to be mindful that the tests be taken as soon as practicable, there was in the circumstances no apparent investigative or administrative urgency that would justify such an arbitrary and seemingly stingy time frame, one that might have the effect of rendering meaningless the requirement that he provide a reasonable opportunity for his detainee to consult counsel of choice.

[22] As well, it does not assist the officer to rely on the accused having spoken with duty counsel. In this regard, in R. v. Kumarasamy, [2002] O.J. No. 303 (Ont. S.C.), Justice Durno was of the view, one with which I agree, that access to duty counsel "cannot be used to trump a detainee's right to counsel of choice". Langdon J. put it differently in Zaidi. He said that while calling duty counsel may assist an accused in the exercise of his right to counsel, it does not facilitate his right to communicate with his lawyer of choice.

[23] A review of some of the authorities is helpful in understanding, what, depending on the circumstances, represents a reasonable opportunity to consult counsel of choice. In Zaidi, the accused had a pager number for counsel and left the phone number for the mobile breath unit. After one minute, when no response was received, the arresting officer called duty counsel and offered the defendant an opportunity to speak to him, one that was accepted. Mr. Zaidi was not satisfied with the advice he received from duty counsel and again asked to speak to his lawyer, but the officer felt there was little benefit to continue to leave calls on the pager number. He turned the accused over to a qualified technician in just under an hour after his arrest.

[24] Justice Langdon was of the view that both officers failed in their duty to make reasonable efforts to facilitate the defendant's right to communicate with counsel of choice. The test results were excluded under s. 24(2).

[25] In Samatar, the accused obtained the phone number of his lawyer from a friend. The officer left a message on that line. Five minutes later she put a call into duty counsel because in her experience, lawyers often do not call back. She informed her detainee that should counsel respond he would have an opportunity to speak to him. The defendant then spoke to duty counsel after which he was placed in the custody of a breathalyzer technician. Mr. Samatar repeatedly asked to speak to his lawyer. The technician felt there was nothing more the police could do for him and was both distinctly unhelpful, as well as sarcastic in response. He required that the defendant submit to his first test 10 minutes after a second message was left with counsel of choice.

[26] In the circumstances, Knazan J. concluded that the police failed in their duty to provide a reasonable opportunity for the accused to exercise his right to counsel of choice. In a Grant analysis to exclude the results of the breath tests, he found this violation to be serious in light of the technician's attitude and unhelpfulness and felt there was a need for the court to disassociate itself from the conduct.

[27] Justice Knazan was also troubled by the offer of counsel and then its denial. He was of the view that the same factors that made the breach serious were significant in assessing the impact on the Charter-protected interests of the accused. Finally, he held that the longer-term repute of the justice system could be affected negatively by the admission of the test results in those circumstances. The results were excluded.

[28] In Markovic, the arresting officer left a message with the accused's lawyer but called duty counsel because he did not believe the lawyer would call back given the early morning hours. The defendant then obtained counsel's cell phone number through his wife and left a message. When duty counsel called back, the officer had the accused speak to him. The defendant was then turned over to a qualified technician who required that he provide breath samples.

[29] Mr. Markovic told the court that he did not find the information he received from duty counsel to be useful but did not complain because he had the impression he would not be offered another opportunity to speak with his counsel, nor was he told he could try to contact a different lawyer.

[30] In the circumstances, M. Greene J. inferred that the defendant was not fully informed of the extent of his rights to counsel and that in the circumstances the police had violated his s. 10(b) rights in failing to wait a reasonable time for counsel to call back.

[31] Using a Grant analysis, Justice Greene found the breach serious in that the officer did not understand the extent of his obligations under s. 10(b) to inform the accused of his right to wait a reasonable amount of time for counsel to call back or to facilitate contact with additional counsel of choice. In relation to impact on the accused's Charter-protected interests, she emphasized the practical importance of this right for the accused to have a full and frank conversation with someone he trusts and was of the view that its breach was more than minimal. Finally, she determined that on balance these violations were more than trivial and while impaired drivers are a menace to society, the statutory powers of the police to intrude on constitutional rights in their investigations required that the authorities be held to a high level of compliance. She excluded the results.

[32] Similarly, in R. v. Alfardo-Delgardo, where the officer waited only 9 minutes for a call back, Bacchus J was of the view that expecting a return call in that brief period in the early hours of the morning was patently unreasonable. She concluded that the officer did not fully appreciate the extent of his s. 10(b) obligations and that his inadequate effort in that regard did not constitute providing the detainee a meaningful exercise of his Charter right.

[33] Finally, in R. v. Jamieson, [2003] O.J. No. 5964 (Ont. C.J.), the police waited only 15 minutes for a call back from counsel during which period the accused continued to request an opportunity to speak to his lawyer and where 45 minutes remained in the statutory time frame. Counsel did not call back during that time period. Justice Wilkie was of the view that in proceeding with the test without waiting a reasonable time impacted adversely on the accused's ability to assert his right to counsel of choice and that the lack of actual prejudice was not determinative of the issue.

Application to this Case

[34] When it became apparent to P.C. Bellion that the defendant would be unable to reach out-of-town counsel, he defaulted to duty counsel. When Mr. Fagon demonstrated diligence in providing a phone number for his own lawyer after speaking with duty counsel, the officer ought to have inferred that the accused was not satisfied with the advice he had received. In relying on the accused having received advice from duty counsel, he diminished his right to counsel of choice. Finally, in setting a short and arbitrary time frame on a call back from counsel where there was over an hour before the statutory time limit for testing expired, the officer demonstrated a lack of awareness of his obligation to fully inform his detainee of his rights to counsel and to provide a reasonable and meaningful opportunity for him to exercise that right.

[35] Given the paramount nature of this constitutional right, the ultimate failure of counsel to return the call, while a factor, is not determinative in relation to a breach of this fundamental right. It is not for this court to speculate about the practical value of the advice that might be received from a trusted lawyer.

[36] In the circumstances, I conclude that the officer did not fulfill his duty to provide a reasonable opportunity for Mr. Fagon to consult his counsel of choice, violating the defendant's s. 10(b) rights. As articulated in the authorities upon which I rely, the breach of this important right was, for the reasons provided, more than trivial, its impact on the Charter-protected interests of the accused adverse and its potential impact on the longer-term repute of the justice system negative. The breath test results will be excluded under s. 24(2).

[37] In the circumstances, the charge is dismissed.

Released: June 11, 2014

Signed: "Justice L. Feldman"