Court File and Parties

Court File No.: 13-1156 County: Renfrew Date: 2014-05-01 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Lucas Dekking

Before: Justice R.G. Selkirk

Heard: March 17, 2014

Reasons for Judgment Released: May 1, 2014

Counsel:

• Sam Humphrey, for the Crown
• Will Murray, for the accused Lucas Dekking

Judgment

SELKIRK, J.:

[1] Mr. Dekking is charged with one count of Impaired Driving and one count of Over 80 arising out of an incident on the 14th of September, 2013.

[2] The defence alleges violations of sections 8, 9 and 10(b) and seeks exclusion of the evidence under s.24(2) of the Charter.

[3] In its factum, however, the defence concedes that if the s.10(b) argument is not successful in excluding the evidence of the breath tests then a conviction will follow. (See page 2, para. 2, dated April 1st, 2014).

[4] I agree and thank counsel for the professional presentation of this case. The narrowing of issues to the truly germane is of great assistance to the court.

Facts Regarding Section 10(b) Breach Allegation

[5] The facts surrounding the allegation of s.10(b) breach are as follows:

a) The officers observed the accused driving away from a popular bar.

b) The officers wished to check upon the sobriety of the driver and to that end followed and then stopped the driver.

c) Upon noting the odour of alcohol and some minor indicia of impairment, an approved screening device demand was made.

d) A "fail" result was obtained and the accused was arrested. He was read his rights to counsel and a caution.

e) When asked if he understood his rights to counsel, he replied, "Yes". When asked if he wished to speak with counsel he replied "Yes". He said he wished to speak with duty counsel.

f) At the detachment the accused was asked if he wished to call any lawyer in particular or duty counsel and the accused responded, "duty counsel".

g) The accused was not given the opportunity to consult the yellow pages, a list of criminal lawyers or access to the internet in order to find a lawyer. Nor did he ask for any of these things. At no time did the accused indicate that he wished to contact private counsel but did not know how. No suggestion was made by the accused that he wanted anything other than duty counsel.

h) Duty counsel was contacted and called back. After a twenty-five minute conversation with duty counsel the accused announced that duty counsel had, "hung up on him and he did not know why." He wished to continue to speak to duty counsel so the officers called duty counsel back and arranged for a different duty counsel to speak with the accused. The accused then spoke with this duty counsel for a further twelve minutes. No concerns were expressed by the accused with the conversation or advice received from this duty counsel.

i) He was then turned over to the Breath Technician and provided two suitable samples for analysis in a properly working approved instrument.

j) By the time of the tests the two hour limit had been exceeded. The Crown, without objection from the defence, filed a report from a toxicologist at the Forensic Centre of Sciences which read back the readings to the time of driving.

k) In cross-examination the arresting Officer testified further as to a conversation with the accused while waiting for duty counsel to call back which was to the effect that the accused wanted a non-military duty counsel and he wanted a free consultation as he was concerned as to costs.

Defence Argument

[6] In these circumstances the defence argues that the informational duties of the police were not met. By not offering him the yellow pages, or a list of lawyers or internet access, the accused who did not know the name of a specific lawyer or how to get in touch with such a lawyer, is then left with no other option but duty counsel.

[7] The defence cited two cases in support. In Oakley, 2012 BCPC 98, the facts and ruling are captured in paragraphs 43 to 45 which read:

[43] In the present case, Mr. Oakley was given the usual statement of his rights under s. 10(b) at the scene and in a prompt manner. He said he wished to consult counsel. He did not waive his right to counsel, nor to counsel of choice. No other step was taken from that point on by Cst. Kumar to determine whether he wished to consult a lawyer of his choice or legal aid duty counsel.

[44] Mr. Oakley did not ask to consult a lawyer of his choice, but that option was never further raised or materials such as a list of lawyers or a directory provided on the basis of which substance might be given to that right. It was simply never raised again. Mr. Oakley was placed in a holding room. Eighteen minutes passed, during which no steps were taken to implement the right to counsel.

[45] The offered explanation, although perhaps made in good faith by a relatively inexperienced officer, does not comply with the expectations the courts have set for implementation of the right to counsel. The failure to implement access to counsel promptly on arrival at the police station with the facility to do so readily available, the failure to provide an opportunity to consider the option of calling legal counsel other than legal aid, and the arbitrary dialling of the legal aid number and then handing the phone over to Mr. Oakley all amount to breaches of his right under s. 10(b) of the Charter.

[8] In McKay, 2013 ABPC 13, the police did offer telephone books and a list of lawyers but did not offer internet access to Google. At paragraph 21 the court wrote, "In the year 2013 it is the Court's view that all police stations must be equipped with internet access and detainees must have the same opportunities to access the internet to find a lawyer as they do to access the telephone book to find a lawyer." The Court found a breach of s.10(b).

Court's Analysis

[9] During submissions, I indicated to the defence that I had been aware for a number of years of the expanded duties on the police in the western provinces to provide telephone books, list of lawyers and now internet access to a detained person but that I was not aware of any caselaw from Ontario that imposed the same duties. The case was then adjourned for counsel to research this concern.

[10] In his thorough factum the defence recognizes that Blackett, 2006 O.J. 2999, "…does an excellent job of summarising the lay of the land in Ontario regarding right to counsel of choice cases. It discusses the Court of Appeal cases in Richfield, Littleford and Eakin which constrained this avenue of defence in Ontario." (Para. 23 of written submissions, dated April 1st, 2014).

[11] The defence suggests that these leading cases can be distinguished on the basis that they deal with the implementation aspect of the accused's s.10(b) rights and the case at bar deals with the informational aspect in that the police provided no assistance to the accused to speak to anyone other than duty counsel.

[12] It is recognized by the defence that there is a requirement that the detained person act diligently in the pursuit of counsel of choice but it is submitted that one must be aware of the options available in order to be diligent in exercising them.

[13] The defence then cites six Ontario cases in support of his position. The difficulty is that in each of those cases the s.10(b) exercise starts with a request for a specific lawyer. The complaint then becomes that the police did not do enough to contact that lawyer. Here, when offered a lawyer of choice or duty counsel the accused on two occasions chose duty counsel. He was concerned that any consultation be free of cost. He specifically asked for and received non-military duty counsel. It is extremely speculative that he would have made any different request if provided with a phone book or list of lawyers. The accused did not testify.

[14] In my view, there was a clear indication of an informed waiver of his rights to counsel of choice. Twice he was told he can choose private counsel or duty counsel. Twice he chose duty counsel. If he had had any interest in private counsel it is not unreasonable to require him to make some indication of that desire. Even if it was just a show of confusion or a question about how to contact a lawyer would probably be sufficient to negate waiver. But here there is nothing but the stated desire for free services.

[15] I must also find that although there is an attraction to the positions stated in Oakley and McKay that this is not a supported position in Ontario. If I followed McKay it would impose an as yet unprecedented requirement for police. I appreciate that growth in the law has to start somewhere but I do not believe that this is the case to start this growth.

[16] While every case must be decided on its own facts, I find Blackett does apply to the case at bar and I dismiss the Charter application as it relates to s.10(b).

Other Arguments

[17] I can quickly deal with the other arguments as the defence concedes that without a violation of s.10(b) they would not be likely to succeed.

[18] S. 48 of the Highway Traffic Act and Hufsky, [1988] 1 SCR 621 is the authority for the stop. It need be based on nothing more than a genuine desire to check the driver's sobriety.

[19] The search of the accused's vehicle subsequent to the arrest, including even that of the glove box is allowed pursuant to police powers to search incidentally. The search was for evidence to support the offences for which the accused was arrested.

[20] Bolus drinking can create a reasonable doubt, but such a doubt has not been established here. All that can be said is that the accused left a bar and that he was stopped within minutes. The officer waited for mouth alcohol to clear so that is not an issue. This evidence without anything more does not displace the common sense inference in Hall or Grosse or Evans, all from the Ontario Court of Appeal, that people do not consume large amounts of alcohol shortly before driving. This is especially true where the readings are almost 100 mgs. of alcohol over the limit.

Impaired Driving Conviction

[21] On the Impaired count, the evidence establishes beyond a reasonable doubt that the accused had the odour of alcohol on his breath; that his eyes were red; that he was a little unsteady on his feet; that his movements were slow; that he pulled his vehicle into an oncoming lane of traffic and caused the officer to take action to avoid him; that he displayed some confusion throughout the incident and did not seem to understand requests made of him without explanations for the requests or questioning the requests.

[22] I agree taken individually that the above can be explained. I agree that that there was no bad driving except in the pulling out of the bar. I agree the officers' notes about slurred speech left a lot to be desired.

[23] Also, I do not give much weight to the accused almost falling off his chair in the breath room. This was a lengthy period of time after the driving and I cannot exclude the possibility that the effects of alcohol were increasing in nature, or in other words he was more drunk at the detachment than he was on the road.

[24] Nonetheless, taking all of the indicia together and applying Stellato that any degree of impairment of the ability to drive is sufficient for conviction then I find although not an overwhelming case, it is a case sufficient to establish impairment beyond a reasonable doubt and I would convict on the Impaired as well.

Final Disposition

[25] I will judicially stay the Impaired count and enter a conviction on the Over 80.

Released: May 1st, 2014

The Honourable Mr. Justice Robert G. Selkirk