Court Information

Ontario Court of Justice

Date: 2014-11-04

Information No.: SUDBURY 998-13-2928,9

Parties

Between:

Her Majesty the Queen

— AND —

Michael Mahaffy

Before the Court

Justice: A.L. Guay

Heard: October 21, 2014

Decision on: Charter Application re: Section 10(b)

Counsel

Philip Zylberberg — counsel for the Crown

P. Berk Keaney — counsel for the applicant Michael Mahaffy

Decision

GUAY J.:

Facts

[1] On August 20, 2013 the accused, Michael Mahaffy, was stopped by the Sudbury Regional Police one block from his home in the south end of Sudbury following a complaint from a local gas bar employee. The complaint was received by Constable Young who was seated in a police cruiser located in a parking lot not far from the gas bar. The complainant indicated that there was possibly an impaired driver who had left the gas bar driving a red Jeep Cherokee. When Constable Young noticed a vehicle which fit that description pass by her parked cruiser at a high rate of speed, she pursued the vehicle. It would turn out that the vehicle was being driven by the accused, Michael Mahaffy.

[2] When the officer asked the accused to produce his driver's licence, he was unable to do so. While she did not initially detect the odour of alcohol emanating from the vehicle when the driver side window was lowered, she did so when she put her face closer to the driver side window as she was reviewing the accused's documents. It was not long before the officer noticed, with respect to the accused, some of what are often recognized as indicia of heavy alcohol consumption.

[3] Within two or three minutes after initially spotting the accused in his vehicle, Constable Young formed the belief that he may have been drinking to excess and demanded that he provide a sample into a roadside screening device pursuant to section 254(2) of the Criminal Code. This demand was made at 2:53 a.m. Not having a roadside screening device in her vehicle, Constable Young called headquarters asking that a roadside screening device be delivered to her location. A few minutes later, this device was brought to her vehicle.

[4] Within two minutes of the delivery of the device, the accused provided to Constable Young a breath sample which caused the device to register a "fail". It was at this point that Constable Young formed the belief that the accused's ability to drive was impaired by alcohol whereupon she arrested the accused for having more than 80 mg. of alcohol in 100 mL of blood, contrary to section 253(1)(b) of the Criminal Code. She arrested the accused at 3:06 a.m. Having done so, Constable Young then read the accused his rights to counsel and the usual caution.

[5] When asked whether he understood what she was saying to him, the accused indicated that he did and that he wanted to speak with his lawyer, Berk Keaney. The process of informing the accused of his right to counsel and cautioning him about the use that could be made of any statements he made took place at 3:07 a.m., as did the formal demand to provide a breath sample for analysis into an approved Intoxilyzer machine.

[6] The accused was then taken to police headquarters and arrived there at 3:23 a.m. The officer who assisted in bringing the accused to the appropriate locale in the police station, Staff Sgt. Somerset, asked the accused if he wanted to speak to a lawyer. The accused, Michael Mahaffy, told him that he wanted to speak to Mr. Keaney. In the time between his arrival at the police station at 3:23 a.m. and 3:40 a.m., Sgt. Somerset made two attempts to contact the accused's lawyer using two telephone numbers available to him. In each case, after a number of rings, messages were left for the accused's lawyer, Berk Keaney.

[7] At 3:40 a.m., the accused was turned over to Constable Young, the investigating police officer, who also happened to be the qualified breath technician charged with obtaining and carrying out an analysis of the accused's breath. Again, Constable Young gave the accused his rights to counsel. In due course, the accused provided to her the two required breath samples.

Section 10(b) of the Charter

[8] The accused, Michael Mahaffy, argues that his section 10(b) Charter rights and specifically his right to retain and instruct counsel without delay and his right to be informed of that right were violated on three occasions by the Greater Sudbury Police on the occasion of his arrest for driving with more than 80 mg. of alcohol in 100 mL of blood contrary to section 253(1)(b) of the Criminal Code.

[9] The accused maintains that in the 9 minutes or so between the time at which he was stopped by Constable Young and the time a roadside screening device was brought to the point of detention, he was not afforded a realistic opportunity to contact his lawyer. While he was not asked whether he had a cell phone permitting him to do so, there is no evidence suggesting that a cell phone was available to him. The accused led evidence that once an accused person is in custody at police headquarters, necessary legal advice can be provided in approximately 7 minutes. He therefore argued that had he had or been provided with an opportunity to consult with his lawyer on the occasion in question, there would have been time for him to do so and be advised of his rights.

[10] While there is debate about what amount of time must elapse before an accused person is said to have a realistic opportunity of consulting with his or her lawyer, this seems to depend on the particular circumstances of each case. In the leading case on this matter, R. v. George, a 2004 decision of the Ontario Court of Appeal, there was an 18 minute roadside delay between the time of the accused's detention and his providing a breath sample into a roadside screening device. In that case, the accused had a cell phone and testified that he would have called his lawyer had he been given an opportunity to do so. The Court of Appeal found that the arresting police officer could have asked the accused whether he had a cell phone but did not do so. The Court also found that contact by the accused with counsel could have been accommodated by the use of the accused's cell phone or by allowing the accused to call his counsel at a nearby police station. As a result, the Court found that the accused's section 10(b) Charter rights had been violated in that he was denied an opportunity to be advised by his counsel when there was a realistic opportunity for him to have done so.

[11] The Court of Appeal revisited this issue of the right to retain counsel in 2007 in R. v. Torsney. On the issue of the accused's section 10(b) Charter rights, the Court found that the police had properly obtained and used the roadside screening device and made the demand for a breath sample pursuant to it under section 254(2) of the Criminal Code before there was any realistic opportunity for the accused to consult counsel. The Court found that the trial judge had erred in equating a realistic opportunity to consult counsel with the mere chance of placing a call to his lawyer. The former he was entitled to, providing the time of detention, from the moment it began, until a roadside screening device was produced and the sample taken, permitted it to take place. The test was not whether the accused could actually make telephone contact with his lawyer but whether he could, in the available time, consult and be advised by his lawyer prior to a sample being provided into the roadside screening device.

[12] Taking into consideration the subsequent comments of the accused about his counsel not taking phone calls at night and the two attempts by Sgt. Somerset to contact the accused's counsel in the period between the time he arrived at the police station at 3:23 a.m. and the time he was delivered to Constable Young in her capacity as a breathalyzer technician who would administer to him the Intoxilyzer analysis, it is my conclusion that there was indeed no realistic opportunity on the part of the accused to consult with his lawyer during the time which elapsed between his detention and the arrival of the roadside screening device at the point of his detention.

[13] As noted earlier, the accused also alleged that his section 10(b) Charter rights were violated during the course of his detention at the police station. He maintains that he told the police, including Constable Young and Sgt. Somerset, that he wanted to speak to his lawyer, Berk Keaney. He told Sgt. Somerset that his lawyer was "the best" and asked that he be contacted. This Sgt. Somerset tried to do at the two telephone numbers available to him. One of these numbers was allegedly his lawyer's cell phone number. When these numbers were called, the phone was allowed to ring a number of times before separate messages were left on the answering service attached to each number.

[14] Constable Young, in her capacity as the breathalyzer technician in this matter, asked the accused whether he wanted to speak to a lawyer. He indicated that he wanted to speak to Berk Keaney, admitting that he did not believe his lawyer answered his phone at night. On more than one occasion, the accused was provided with an opportunity to speak to a legal aid lawyer, he being informed of the number and possibility for doing so. He did not wish to do so and indicated in so many words that he did not wish to do so.

[15] In reviewing the will state of Constable Young, it is quite clear that the accused was fully cognizant of the process which was taking place with respect to his arrest and his detention for the purpose of obtaining breath samples for analysis of the alcohol present in his body. When he entered the breathalyzer room at 3:41 a.m., he was asked if he understood why he was there. He indicated he did. Constable Young also told him that while he had already been given his rights to counsel and cautioned by her earlier, she was going to give them to him again. Again, she reminded him that he had left a message for his lawyer and that he still had an opportunity to contact any lawyer he wished to speak to. He indicated he understood and his rights were read to him again. He was provided with a 1-800 number, being the number for obtaining free legal advice with respect to his rights. He indicated he understood what was being said. At this point, he refused to call another lawyer, stating that he had left a message for his lawyer earlier. At 3:48 a.m., he was read the demand to provide breath samples and indicated he understood what was being asked of him.

[16] While not able to speak to his counsel, then, he, in answering a number of questions, indicated the difference between what his lawyer might have advised him to say, which was "nothing", and what he was prepared to say, which was a little more than nothing. Asked if he understood what was being told to him by Constable Young, he indicated that he did, even if he did not specifically use the words "Yes, I understand what you are telling me". I did not find any of his answers to questions put to him about the choice he was making ambivalent but rather that these comments indicated he was resigned to what was happening in the realization that the lawyer of his choice in whom he had, it would appear, total confidence, would not get back to him during the course of the night.

[17] The case law makes it clear that once an accused is in police custody and the police take on the duty of explaining an accused's legal rights to him or her and attempt to put him or her in touch with a lawyer of his or her choice, they must take these obligations seriously and not content themselves with a pro forma or technical approach to the matter. They must, in fact, do all that is reasonable to help the accused contact his or her counsel or, in the alternative, be provided with the legal assistance made available by the Legal Aid Plan of Ontario. While it is incumbent on the police to act fairly with an accused person under detention, the law does not require them to go to extraordinary efforts to ensure that accused persons both know and have means of exercising their rights. In all of the circumstances in this case, as in many similar cases unfolding during the middle of the night, it will usually be difficult for an accused to contact a lawyer of his or her choice, albeit that the accused has very strong confidence in that person. That is why legal aid assistance is given, so as to provide a minimum level of legal rights to any person facing incrimination. It may be that some accused persons do not have confidence in unknown lawyers or in lawyers provided by the Legal Aid Plan of Ontario, but their refusal to avail themselves of this assistance cannot be an argument in favor of establishing that they have been denied their section 10(b) Charter rights.

[18] The accused application for exclusion of the evidence which is the subject of this application is therefore denied. In light of this conclusion, then, I will therefore not address the issue raised by section 24(2) of the Charter.

Released: November 4, 2014

Justice A.L. Guay