Court File and Parties

Court File No.: 13-1829 Date: 2014-02-10 Ontario Court of Justice

Between: Her Majesty the Queen — and — Edgar Fonseca

Before: Justice S. R. Clark

Charge: Over 80

Trial held on: December 13, 2013 and January 2, 2014

Judgment released on: February 10, 2014

Counsel:

• Ms. R. Prihar for the Crown
• Mr. T. Edmund Chan for the defendant Edgar Fonseca

Introduction

[1] The defendant is charged with the offence of over 80 on February 1, 2013.

[2] This case deals with the issue of the responsibility of the police to facilitate a detainee speaking to someone other than duty counsel even if no private counsel is requested.

[3] Just before midnight, he was stopped and investigated after driving out of the parking lot of a licenced premises known as "Pure Gold". He provided a roadside breath sample to the investigating officer and registered an "F" for fail. He was subsequently charged with excess alcohol and advised of his rights to counsel, was cautioned and issued a breath demand. He was taken to the police division, and after speaking with duty counsel, subsequently provided two suitable breath samples, registering 160 and 150 milligrams of alcohol in 100 millilitres of blood respectively.

[4] The defence contends that the police, at no time, tried to facilitate him speaking with or locating private counsel, but merely directed him only to duty counsel, thereby violating his right to counsel of choice.

[5] The Crown, on the other hand, submits that the police discharged their responsibilities, and accordingly, there has been no s.10(b) Charter breach. In any event, the evidence should be saved under a s.24(2) analysis.

The Issues

[6] The issues are as follows:

1. The sole Charter issue is whether the police discharged their responsibilities to provide both informational and implementational rights to counsel, as required by s.10(b).

2. The sole substantive issue is whether the breath samples were obtained as soon as practicable, and whether the Crown is entitled to rely on the presumption of identify set out in s.258 of the Criminal Code.

Summary of the Evidence

3.1 The Crown

3.1.1 Cst. Tim Weatherley

He has been a police officer since January 2010. He was on duty on February 1st, 2013, involved in proactive enforcement, with particular emphasis on licenced establishments. The initiative at the time was known as the "Last Drink Program". Police compiled statistics showing the "top 10" bars where impaired drivers may be coming from. He has been involved directly in 4 previous drinking-driving incidents from this location. He parked across the street. At 11:36 p.m. he observed a silver Honda Civic coming out of the parking lot and then going westbound on Royal Windsor Drive. The right tires came close to the dotted lines separating the lanes. He drove behind the subject vehicle and turned on his emergency lights. There was no response for a period of 3 to 4 seconds. He thought this was "uncommon", as most people respond right away. The vehicle then "jerked" and moved over to the right shoulder of the road. The driver (the defendant) was asked about alcohol consumption. The response was, "Three beers". He said he had been at the Pure Gold establishment since 5 p.m. for a work-related function. He also told the officer his last drink was 30 minutes prior to leaving. The officer detected the smell of an alcoholic beverage on his breath. He also observed the white inner portion of his left eye to be bloodshot. He formed the suspicion the defendant had alcohol in his system. After asking for his driving documents, he read the approved screening device (ASD) demand from his memo book. The defendant provided a suitable sample which registered an "F", for fail. He was subsequently arrested for excess alcohol at 11:42 p.m. He described the defendant as being "talkative". He was given his rights to counsel at 11:44 p.m. The officer read the standard 6 questions from his memo book. In response to the question, "Do you want to call a lawyer now", the defendant responded, "I will have to". At 11:47, the officer posed the question, "Is there a specific lawyer you want to contact?" The answer was, "No". He told the defendant about duty counsel. He then read the defendant the breath demand. There was some difficulty about which police division was available. Eventually he was taken to 22 division. A message was left for duty counsel at 12:28 a.m. Duty counsel called back at 12:40. The defendant was placed in a private room. The conversation was brief. The call ended at 12:42. At 12:56 the officer briefed the qualified breath technician (QBT), Cst. Genoe, and at 1:02 a.m. turned the defendant over to him. The defendant was returned to him at 1:43 a.m. He served documents at 2:05 including the certificate of analysis setting out the breath readings. At no time did the defendant ever tell him he was dissatisfied with the advice he had received from duty counsel, or that he wanted to speak to another lawyer.

On cross-examination, he acknowledged he did not give the defendant a lawyers' directory or phone book. He hastened to add, however, had the defendant asked him he would have provided it. He has used a directory previously, but only when a detainee made a request to speak to a particular lawyer. He explained when placing a call to duty counsel for a detainee, there are two streams. If a message is left regarding a drinking-driving incident, a return call is often expedited. A portion of the video/DVD of the defendant in the private room speaking with duty counsel was played. Counsel suggested the defendant was only on the phone for a maximum of 90 seconds. Although the officer did not time it, he did not disagree. The defendant never complained to him, however, about speaking to duty counsel. Counsel asked him whether, based on this silence, he felt he had no further obligation to tell the defendant anything more. He responded he did not make any decisions based on the defendant's silence. He was satisfied that once he had asked the defendant at the roadside if he wanted to speak to duty counsel he felt he did not need to raise it again. He maintained had the defendant said anything after the phone call about not being satisfied with the advice he received, he would have had no problem trying again, or allowing him to speak to some other duty counsel. Counsel asked if it ever crossed his mind to give the defendant a list of lawyers from a directory. He responded if he thought this would have been helpful he would have. Counsel also asked if it was his understanding that a detainee must ask for a specific lawyer or a directory of lawyers and if not, then duty counsel is automatically called. The officer disagreed with this proposition and stated if a person said anything at all about wanting to speak to a specific lawyer, or having a lawyer in mind, or even just the address of a lawyer, he would follow up and attempt to facilitate this. Based on his experience, however, duty counsel are on call 24 hours a day, 7 days a week, and will often call back quickly. On the other hand, private lawyers may not call back until the next morning.

Counsel asked if it was his practice to ask a detainee if he was satisfied with the advice he received. He replied this is his usual practice, however, he did not have this noted for some reason in this particular case, nor does it seem to be captured anywhere on the video/DVD. If the defendant had left him with the impression that somehow he thought he was only listening to a recorded voice or a machine, the officer would have called duty counsel office back to make sure he was speaking to a "live" person.

3.1.2 Cst. Genoe

He is the qualified breath technician (QBT). He was involved with another drinking-driving suspect at the time the defendant was brought to the police station. The defendant was turned over to him at 1:02 a.m. He was provided with the grounds for arrest.

That part of the video/DVD showing the interaction with the defendant was played. The Court made the following observations. The officer was professional and businesslike. He confirmed the defendant had spoken to duty counsel. The defendant told him, "Yes, I thought it was a recording, but yes I did". The officer then asked him, "And you understood the conversation?" The defendant responded, "Yes, I did". He was aware Cst. Weatherley had provided the defendant with an opportunity to speak to duty counsel. Nonetheless he explained he asks all detainees just before they provide breath samples if they wish to speak to duty counsel as a matter of practice. He does this for two reasons. First, it confirms that the right to counsel was addressed as a matter of public record on the video. Second, it addresses any concerns about whether the right was facilitated or not. He stated he is careful in choosing his words and asks individuals if they are satisfied with the conversation. He explained had the defendant expressed any dissatisfaction, he would have questioned him further. The officer asked the defendant if he had any questions. The defendant answered, "No".

On cross-examination, counsel asked him why he didn't ask the defendant what he meant when he said he thought it was a recording, when speaking to duty counsel? Counsel also suggested that he never asked the defendant specifically, "Are you satisfied with the advice from duty counsel?" He responded that it is part of his practice to do so, although this is primarily the function of the arresting officer. He satisfied himself that Cst. Weatherley had asked this question. He explained further he may not specifically use the word "satisfied", but he would ask the individual if everything is good. Therefore, when the defendant told him he thought it was a recording, he did not think to inquire further, because the defendant told him he understood the conversation.

3.2 The Defence

3.2.1 The Defendant

He testified only on the Charter application. He is 52 years of age. He lives with his wife and children. He is a purchasing manager for an automotive company in Hamilton. He has no previous criminal record. He attended the Pure Gold establishment at approximately 5 p.m. He went there for business-related meetings. He left just before midnight and was in the process of driving home. After being stopped by the officer, providing a breath sample which registered a fail, and after being arrested for excess alcohol, when asked if he wanted to speak to a lawyer now, his response was, "I will have to". He explained what he meant by this is he would have to call a lawyer at the conclusion of the investigation. He did not know a specific lawyer at that time. He also did not know what a duty counsel was. He acknowledged he actually spoke to someone whom he understood was duty counsel, but no one explained to him who the person was. The conversation was extremely brief. He stated he couldn't understand what the person was telling him. Duty counsel's tone of voice was almost like a recorded voice at the other end. He testified he was actually not satisfied with the advice he had received. When asked why he did not say anything to Cst. Weatherley about this, he explained he has never been in this type of situation before. He thought this is what the process was. He did not know he had the right to speak to another duty counsel. He did not recall the officer ever asking if he was satisfied with the conversation he had with duty counsel. When asked why he did not tell Cst. Genoe he was not satisfied, he again explained he had no previous experience in situations like this. No one ever offered him the option of referring to a lawyer's phone book. Once he was ultimately released from the police station, he made inquiries to retain his own lawyer through the internet. He explained he did not know he had the right to choose a lawyer while at the police station the same way he did after the event. He was never provided with this as an option, and had no idea he could have asked for this. Similarly, he did not know he could have made a phone call to any lawyer of his choice. He did not think he had any entitlement to any phone calls after he spoke with duty counsel.

On cross-examination he acknowledged he was arrested at 11:42 p.m. and 2 minutes later his rights to counsel were read to him by Cst. Weatherley. The Crown suggested the officer distinctly asked him, "Do you have a specific lawyer", and that he said, no. He acknowledged he said he wanted to speak to duty counsel when the officer asked him. He thought duty counsel was a law practitioner, or perhaps a "rookie" lawyer. Counsel suggested the video/DVD depicts him actually speaking to someone, in which case this was not a one-sided conversation, and could not, therefore, have been a recording. He acknowledged this, but explained duty counsel was speaking extremely fast. He made a point to tell him to slow down but he did not. He acknowledged he received some advice, although he explained it was more like a paragraph being read to him. He was not understanding what duty counsel was saying, however. The Crown asked him why he would not have told Cst. Weatherley all this. He explained he was not thinking this way at the time. He agreed with the Crown's suggestion, however, that the officers should not be expected to read his mind, and all the police can go on is on the basis of what he may have said to them. On the video he was asked by Cst. Genoe if he understood the conversation with duty counsel. He said he did. However, in his testimony at trial, he said he did not. He did not explain this inconsistency directly, but indicated he did tell duty counsel to slow down. He then said duty counsel hung up on him first. The Crown suggested this is the first time he had mentioned this. He did not disagree.

The Positions of the Parties

4.1 The Defence

4.1.1 S.10(b) – Rights to Counsel

[7] Based on the case of R. v. Srokosz, [2009] O.J. No. 4953, a decision of Justice O'Dea of the Ontario Court of Justice, counsel asks the Court to consider the following points:

1. In Srokosz, the defendant was investigated by the police for suspected impairment. After failing the roadside test he was arrested and placed in the back seat of the police cruiser. He was read his rights to counsel. He could not hear all of what was said because the police communications radio was on. He advised the officer he wished to contact a lawyer but did not know who to call. At the station the officer contacted duty counsel and left a message. He subsequently spoke to duty counsel. Although he was dissatisfied with the conversation he did not indicate this to the police. He brought a Charter application alleging a violation of his ss.8, 9 and 10(b) rights, seeking to exclude the breathalyzer results, on the basis his right to counsel was breached due to the incomplete informational component and his inability to make a choice about which lawyer to speak with. The Court held the officer's failure to allow him to choose his counsel was a serious breach. However, on a s.24(2) analysis, the evidence was saved because there was no meaningful disadvantage flowing from the breach of the informational component, and his right to choose was only minimally undermined. In its analysis, the Court addressed five factors:

   • Failure in the informational component.
   • Failure to accommodate counsel of choice.
   • Failure to explain the role of duty counsel.
   • Soliciting incriminating evidence.
   • Advice from duty counsel.

2. Regarding the failure in the informational component, in the present case, Cst. Weatherley read the rights to counsel once from his book at 11:44 p.m. It is important to consider the surrounding circumstances at the time. The defendant was in a police cruiser for the first time ever. He was handcuffed in the back. Communication was through a window partition between the front and back seat. The length of the exchange was only between 2 and 3 minutes. Counsel submits that two of the questions in particular, "do you have a specific lawyer" and "do you want to call a lawyer now", seemed to be part of a policy of the Peel Police Service which creates a two-tiered system. If an accused has no specific lawyer, he is immediately "funnelled" to duty counsel right away.

3. Regarding the failure to accommodate counsel of choice, Cst. Weatherley testified that he saw no reason why it was necessary to provide the defendant with a directory of lawyers. He testified he had done so approximately 10 times previously, but only if he received a particular request or piece of information from the defendant. Otherwise it was not his practice to do so as he did not see the benefit of it. Furthermore, the evidence of Cst. Genoe suggests the use of duty counsel is not secondary but primary. He testified he never offers a lawyer's phone book to prisoners. If they do not say anything to him about a specific lawyer he just calls duty counsel. Counsel submits, therefore, the defendant was never given a real right to choose a lawyer.

4. Regarding the failure to explain the role of duty counsel, counsel concedes the defendant knew he was speaking to a lawyer, however, several aspects of the police evidence are troubling. No effort was made by the officers to explain the difference. Most individuals wouldn't know unless they were told. The defendant thought duty counsel was a "rookie lawyer".

5. Regarding the police soliciting incriminating evidence before the defendant had the chance to speak with duty counsel, counsel concedes this point is not applicable.

6. Regarding the advice from duty counsel, counsel is not challenging the quality of the advice given. However, he is challenging the lack of meaningful communication due to the brevity of the call. The defendant testified the call was so quick it was like a recording.

7. Accordingly, counsel submits there has been a breach.

[8] On a s.24(2) analysis, the breach was serious, given the conduct of the police. Both officers testified it was their practice to ask a detainee if he/she was satisfied with the advice received, however both officers had not noted this. This constitutes negligence. The Court should dissociate itself from this type of police practice. Nothing will change unless there is a strong judicial statement made. The impact of the breach on the defendant was significant. Although the societal interest in hearing these cases on their merits favours inclusion of the evidence, when balancing all of these factors, the Court should find this systemic malaise cannot be countenanced.

[9] Alternatively, counsel submits that the Court can still grant a remedy under s.24(1) and disallow the Crown from relying on the presumption of identity set out in s.258(1)(c).

4.1.2 As Soon as Practicable

[10] There are two significant time frames. The first is the 12 minute gap from 11:51 p.m., after the defendant had been arrested, read the breath demand and in the process of being transported to the police station and ultimate arrival at 11 division at 12:03 a.m. There does not appear to be any real reason for this time delay other than lack of communication as to which division could accommodate the matter and which qualified breath technician would be available. The second timeframe of 18 minutes is from 12:06 a.m., the time of arrival at the police station until 12:24 when the defendant was finally taken from the sallyport into the building itself. The overall total delay is 30 minutes. This is an inordinate period of time, given the entire investigation took 1½ hours.

4.2 The Crown

4.2.1 S.10(b) Rights to Counsel

[11] The Crown asks the Court to consider the following points:

1. Regarding any failure to in the informational component, the officer is only required to read the rights to counsel once. What is important is the police cannot rely on the mechanical recitation of that right and must facilitate its understanding. (R. v. Willier, 2010 SCC 37, [2010] S.C.J. No. 37). The defendant never said he did not understand. In fact, quite the contrary. Accordingly, this is the full extent of the police obligation. There were no special circumstances requiring any further follow-up. His responses to the officer's questions all made sense.

2. Regarding any failure to accommodate counsel of choice, there was no need to offer a lawyers' directory or phonebook. Cst. Weatherley asked whether the defendant had a specific lawyer he wished to contact, and the response was clearly no. The follow-up question was to the effect, "I can call duty counsel if you wish". The defendant agreed. There was nothing that suggests a systemic or negligent approach to this part of the investigation. It was entirely appropriate for the officer to make a determination that if the defendant did not know a lawyer, being offered a list of names was not going to be entirely helpful. The officer facilitated this right in a meaningful way by calling duty counsel.

3. Regarding any failure to explain the role of duty counsel, this is not applicable in the present case. Whereas in Srokosz, the defendant said he was unaware he was speaking to a lawyer, this is not the situation in the present case.

4. Regarding any advice obtained from duty counsel, the Willier case, at paragraphs 41 and 42, in particular, stands for the proposition that there is no requirement for the police to monitor the quality of legal advice received. In any event, although the defendant told the QBT it sounded like a recording, Cst. Genoe asked him specifically if he understood that conversation. He replied he did. The officer went further and said if there is anything he did not understand to let him know. He then asked the defendant if he had any questions, which he did not. Furthermore, the defendant said nothing about being dissatisfied with the legal advice received.

5. Regarding s.24(2), there is no systemic negligence. Both officers made good-faith efforts based on the responses and request made by the defendant. Unlike the situation in Srokosz where the defendant never said he wanted to speak to duty counsel, this is not the situation in the present case. There is no impact of any breach, whatsoever, on the defendant. He did not make any inculpatory statements. He did receive legal advice and subsequently provided two breath samples as he was required to do. There was no sufficient link, therefore, between any breach and the evidence obtained.

4.2.2 As Soon as Practicable

[12] There is a reasonable explanation for every part of the passage of time in this investigation. It is important to recognize the police do not have unlimited resources. There are only a limited number of qualified breath technicians available. There was always ongoing communication to address this issue. The police were alive to it. This is why there was a change as to which division could accommodate the matter. Having to wait in the sallyport was reasonable in the circumstances and was easily explained. There were two other cruisers there. Cst. Genoe was engaged in another investigation at the same time. Therefore, the matter could not have been accommodated any sooner.

Analysis

5.1 Issue 1 – Did the police discharge their responsibilities to provide both informational and implementational rights to counsel, as required by S.10(b)?

[13] The informational duty requires the police to tell the defendant of his entitlement to counsel and to tell him what system is available for free and immediate preliminary legal advice. It is also necessary to tell how one can access such advice.

[14] Every defendant is also entitled to a choice regarding which lawyer he will speak with.

[15] It is not the right of the police to merely default to using duty counsel simply because one does not name or request a specific lawyer.

[16] At a minimum, an individual should be advised and given access to the tools available to make a choice. This should not be at all difficult since the police have access to directories and lawyers phone books at the police station obviously for this purpose.

[17] Justice O'Dea in Srokosz found a s.10(b) breach as a result of an incomplete informational component which created the inability of the defendant to make a choice which lawyer he would speak with.

[18] In the circumstances of the present case, however, the Court is not prepared to make this finding. Cst. Weatherley first asked the defendant if he had or knew a specific lawyer. The answer to that was clearly, no. In hindsight, it might have been more prudent for the officer to have followed up with another question asking if he wished to have access to a directory or phonebook when back at the police station. Instead, he then switched to the alternative to ask the defendant if he would like to speak with duty counsel. The defendant's response was clear and definite that he did.

[19] Accordingly, the Court finds there has been no Charter breach. The defendant has not demonstrated, on the required balance of probabilities, that his right to counsel was violated.

[20] In the alternative, if the Court is in error in this aspect of the analysis, having regard to s.24(2), the Court finds the evidence would be saved. Any Charter breach was not serious because there was really no evidence of any aggravating circumstances which were prejudicial to the defendant. Regarding any impact on him, he was able to speak to counsel and receive legal advice in any event. Although the right to choose precedes the right to public assistance through duty counsel in the continuum of the right, since the defendant had no specific lawyer in mind, there is no evidence he would have looked for a lawyer if he had been given access to a directory. Therefore, although he was not made aware of any list of local lawyers or told about the availability of a directory, he was certainly given more than a general understanding of the fact he had a choice. Therefore, the lack of choice was only minimally undermined. The evidence obtained is otherwise reliable and critical to the Crown's case.

[21] When balancing all of the factors set out in the Grant analysis, there is nothing that supports an exclusion of the evidence. Furthermore, there is nothing about the police conduct which supports the Court having to dissociate itself from their conduct. This is not a systemic malaise, or an egregious indifference to the rights of an individual demonstrated by officers in this jurisdiction.

[22] Although the police perhaps might wish to re-evaluate how quickly they default to calling duty counsel, and make more efforts to extend the right of choice to every detainee, it would be disproportionate to send that message to them by excluding the evidence in this case.

[23] Admission of the breath test would not shock society's confidence in the willingness of the courts to recognize the value of this Charter right.

[24] Accordingly, the Court finds admission would not bring the administration of justice into disrepute.

5.2 Issue 2 – Were the breath tests obtained as soon as practicable, and is the Crown entitled to rely on the presumption of identity set out in s.258 of the Criminal Code?

[25] It is important not to become fixated on discreet blocks of time. It is the overall delay that must be assessed in determining whether the tests were administered as soon as practicable.

[26] In the case of R. v. Vanderbruggen (2006), 206 C.C.C. (3d) 489, the Court determined the phrase means nothing more than tests must be taken within a reasonably prompt time, in the circumstances. There is no requirement they be taken as soon as possible. The touchstone is whether the police acted reasonably.

[27] There is no requirement the Crown provide a detailed explanation of what occurred every minute the defendant was in custody.

[28] In all of the circumstances, the delay has been properly accounted for.

[29] The Crown is entitled to rely on the presumption.

Conclusions

[30] The Court finds there has been no s.10(b) breach. In the alternative, the evidence is saved under a s.24(2) analysis.

[31] The Court is satisfied the breath tests were administered as soon as practicable.

[32] The Crown has otherwise proven the essential elements of the offence beyond a reasonable doubt.

[33] Accordingly, there will be a finding of guilt and a conviction registered.

Released: February 10, 2014

Justice S.R. Clark