R. v. Marcantognini

Court Information

Court: Ontario Court of Justice

Date: 2014-12-19

Court File No.: Sudbury 99813 and 99913

Before: Justice Randall W. Lalande

Heard: December 2, 2014

Reasons for Judgment Released: December 19, 2014

Parties and Counsel

Between:

Her Majesty the Queen

— AND —

Angela Marcantognini

Counsel:

• Philip Zylberberg, for the Crown
• Michael Venturi, for the defendant Angela Marcantognini

RULING ON CHARTER MOTION

1: INTRODUCTION

[1] Ms. Marcantognini entered a plea of not guilty to a single count information alleging on June 4, 2013, she committed the offence of over 80 contrary to Section 253(1)(b) of the Criminal Code.

[2] At the commencement of the trial, counsel representing Ms. Marcantognini proceeded to argue an application brought on notice pursuant to section 10(b) and 24(2) of the Canadian Charter of Rights and Freedoms (the "Charter").

[3] Ms. Marcantognini maintains firstly that she was not afforded contact with counsel of her choice and secondly upon speaking with counsel (who was not her first or second counsel of choice) she was not provided with advice "or adequate advice".

[4] Crown counsel opposes the application and takes the position that Ms. Marcantognini was given a reasonable opportunity to select counsel of choice. Moreover she exercised her rights and actually spoke to counsel (who was one of the counsel she had selected) for approximately eight minutes.

[5] Crown counsel also highlighted that an accused's discussion with counsel is private and privileged and that the Charter does not require police to monitor the content or the quality of that discussion.

[6] At issue is the following:

• Was Ms. Marcantognini afforded a reasonable opportunity to speak with counsel of her choice?
• Did she diligently and reasonably indicate that the advice she received was inadequate. If so, taking into account all relevant circumstances, what, if any further steps or measures were police reasonably required to take?

2: BACKGROUND

[7] Officer Cameron Kidder arrested Ms. Marcantognini at 1:08 a.m. on June 4, 2013. She had provided a sample of her breath suitable for analysis in an approved screening device. The device registered a fail.

[8] Ms. Marcantognini was given her right to counsel at 1:15 a.m. At 1:17 a.m. she requested to speak to a lawyer. She was transported to the Sudbury Detachment and arrived at 1:28 a.m. A list containing names of available lawyers and telephone numbers was made available. At 1:30 a.m. she selected Mr. Donald Kuyek as her counsel of choice from the list.

[9] Two numbers were listed for Mr. Kuyek, one of which was his office number and the other his home. Officer Kidder called Mr. Kuyek's home telephone number. There was no answer. He did not leave a message nor according to his recollection did Ms. Marcantognini request that a message be left.

[10] Ms. Marcantognini's next choice of counsel from the list was Mr. Berk Keaney. He was called at 1:48 a.m. There were three available contact numbers on the list. According to the officer, one number was for his office, the other his cell phone and a third marked "other". Officer Kidder dialed Mr. Keaney's cell telephone number and the other available number. There was no answer at either. Ms. Marcantognini, according to the officer's recollection, did not ask that a message be left.

[11] According to the affidavit of Sharon Burton sworn November 3, 2014 and filed in support of the application, the first number dialed by the officer was Mr. Keaney's cell number and the second number was his direct office line.

[12] Ms. Marcantognini's third choice of counsel was Mr. Edmond Paquette. His number was called at 1:51 a.m. Ms. Marcantognini did speak with Mr. Paquette privately from 1:52 a.m. to 2:00 a.m. Her discussion with Mr. Paquette lasted approximately eight minutes.

[13] Officer Kidder indicated that absent receiving an answer in attempting to contact a person's counsel of choice his practice is to ask the person detained if he or she wishes to leave a message or try other counsel. According to the officer he did not recall Ms. Marcantognini requesting that a message be left for either Mr. Kuyek or Mr. Keaney. She instead chose a third lawyer namely Mr. Paquette. All known listed phone numbers relative to Mr. Kuyek and Mr. Keaney (except office telephone numbers) were tried.

[14] Officer Kidder advised that a list of criminal lawyers is kept in the booking area of headquarters. To his understanding, the list is up-dated whenever a lawyer calls in to be added (or deleted) from the list or to edit their contact information. It was this very list that was used on the night in question.

[15] At 2:04 a.m. Constable Kidder turned Ms. Marcantognini over to Constable Adam Groleau. Officer Groleau is a qualified breath technician.

[16] At 2:13 a.m. Constable Groleau provided Ms. Marcantognini with her Charter rights to counsel although he was aware that she had already earlier spoken with Mr. Paquette. At 2:18 a.m. he read the breathalyser demand. At 2:27 a.m. a suitable sample of Ms. Marcantognini's breath was analyzed in the Intoxilizer 8000C and a result obtained. A second suitable sample was taken at 3:02 a.m. It was successfully analyzed and a result was obtained.

[17] The entirety of Officer Groleau's dealings with Ms. Marcantognini was recorded on video. It took approximately 55 minutes to play the full video recording in open court. It was obvious in my observation of Ms. Marcantognini that she was at the time intoxicated.

[18] Ms. Marcantognini's speech was slurred. She lacked physical composure and she was emotionally volatile as evidenced by her frequent and unpredictable bouts of crying or whimpering. For the most part, she was overly talkative and incessantly repetitious. Generally Ms. Marcantognini was functionally coherent although she had much difficulty in controlling herself from ranting. At times she could be seen to slovenly lean on top of Officer Groleau's desk. Although she maintained proper boundaries, her antics when considered in total fostered classic and telling signs of obvious impairment.

[19] Constable Groleau indicated to have made the following observations:

I further observed the female to be unstable and uncontrollably crying, repeating herself, stating that she did not want to go to jail…police explained several times that she would not be doing so.

[20] While speaking with Officer Groleau, Ms. Marcantognini made comments about having spoken with Mr. Paquette. She said that he had hung up on her and that she was not satisfied with the conversation she had had with him. She stated that Mr. Paquette was rude and acted as if he did not want to hear anything she had to say. She described Mr. Paquette as a "prissy little person" who told her "I'm not getting paid for this". She also at one point had told Officer Groleau that she felt that she had received no advice.

[21] When questioned by Officer Groleau, Ms. Marcantognini did indicate that she had been told not to provide answers. She said the lawyer told her "don't answer their questions". At another point she also said to have been advised by counsel as follows: "…I can't speak to you and he told me not to trust anybody".

3: ANALYSIS

3.1 Reasonable Opportunity – Counsel of Choice

[22] Section 10 of the Charter provides that persons arrested or detained by the police have the right to be informed of the reasons for detention and have the right to obtain advice from a lawyer without delay and be informed of that right.

[23] The purpose of section 10(b) of the Charter is to insure that individuals know of their right to speak with a lawyer and know how they might exercise that right. Section 10(b) places three duties upon the police:

1. The duty to inform detainees of the right to counsel;
2. The duty to provide those persons with a reasonable opportunity to exercise that right; and
3. The duty to refrain from taking investigative steps in relation to the accused until he or she has had the opportunity to speak with a lawyer if they so choose.

[24] Where an accused person asks to speak with a particular lawyer, the police must take reasonable steps to implement that request. On these facts, Officer Kidder attempted to contact Ms. Marcantognini first counsel of choice namely Mr. Kuyek. He did not call Mr. Kuyek's office number. He assumed that the office would be closed. He did call the only other number for Mr. Kuyek on the list. This was his residence. There was no answer. The officer does not recall Ms. Marcantognini requesting that he leave a message for Mr. Kuyek. Instead he went on to try to make contact with the next counsel of choice namely Mr. Keaney.

[25] Likewise, the officer did not place a call to Mr. Keaney's office. He called Mr. Keaney's cell phone number. There was no answer. He called another number left on the list by Mr. Keaney. This in fact turned out to be Mr. Keaney's private line at the office. There was no answer. Ms. Marcantognini did not, to his recollection request that a message be left. In consequence Officer Kidder placed a call to Mr. Paquette who was the next counsel of choice. He was successfully contacted. Ms. Marcantognini spoke to him for approximately eight minutes.

[26] It appears that although counsel of choice number 1 and 2 left telephone numbers on the "list" no specific provision or directive was made for late night contact. It was not in the circumstances unreasonable for the officer to call available numbers other than office numbers on the theory that the office would be closed between 1:30 and 2:00 a.m.

[27] The officer was challenged for not having also called the office of Mr. Kuyek or Mr. Keaney on the theory that either office may have been equipped with some type of call forwarding system. There was no evidence that either office telephone system was geared to facilitate late night contact.

[28] There is no evidence of Ms. Marcantognini displaying any reluctance to go on to the next counsel of choice. This is not a case where police were refusing to wait for counsel to call back. According to the officer's recollection, no request was made to leave a message. As best may be ascertained from the evidence at hand, an attempt was made to contact the first and second counsel of choice. The officer did not avoid any directive regarding late night contact. It was reasonable for him to assume that there would be a better chance of contacting counsel by calling cell or residential numbers especially given the time of day. Because Mr. Keaney left two numbers as alternatives to his office, both numbers were unsuccessfully tried.

[29] Counsel for Ms. Marcantognini raises the contention that Officer Kidder failed to take an additional step to facilitate her section 10(b) right. In the court's view, whether Officer Kidder took another step or not is not the determinative factor. The determinative factor is whether he took good faith steps to facilitate contact with counsel of choice.

[30] In essence, the issue for the court to determine is not whether the police could have done more in the circumstances but rather whether what they did was reasonable. At no time did Officer Kidder ignore the right to counsel of choice. He provided a list of available lawyers with contact numbers. He made an effort to contact Ms. Marcantognini's first counsel of choice, second counsel of choice and ultimately third counsel of choice. In theory, he could have dialed all numbers including the office numbers. In his mind, he reasonably assumed it would be more productive to try to contact counsel on their cell or home telephone numbers because it was between 1:30 and 2:00 a.m.

[31] It strongly appears from the evidence at hand that Ms. Marcantognini simply made the decision to opt for another counsel of choice. This was accommodated by Officer Kidder. In cross-examination, he testified that after the numbers he dialed were not answered she verbally indicated that she wanted to move on.

[32] Ultimately Ms. Marcantognini did secure a private discussion with her third counsel of choice. I do not, as suggested by defence counsel, accept that Officer Kidder controlled the process and discerningly avoided calling the office numbers. In reality he facilitated Ms. Marcantognini's efforts to contact counsel. His assumption that counsel left back-up numbers so that they may be called after hours was not unreasonable. Further the evidence is consistent with Ms. Marcantognini's having simply picked another lawyer on the list without prompting.

[33] On a final note this is not a case where Officer Kidder in any way discouraged Ms. Marcantognini from attempting to speak to counsel of choice. In other words there is no evidence that he hurried her along and for some reason preferred that she jump to another name on the list. To the contrary, there is every reason to believe that Officer Kidder was mindful of Ms. Marcantognini's right to seek advice from counsel of choice and took reasonable steps to facilitate that right. Understandably it may, in some circumstances, depending upon the position taken by a person detained, be necessary for an officer to take further steps or measures. This is not one of those cases.

[34] His conduct in facilitating contact with counsel of choice in all of the circumstances was reasonable.

3.2 Inadequate Legal Advice

[35] Unless a person detained indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel. See R. v. Willier, 2010 SCC 37.

[36] Section 10(b) requires that police afford a person detained a reasonable opportunity to contact counsel and to facilitate that contact. It does not require police to monitor the quality of the advice once contact is made. It is well known that solicitor-client relationship is one of confidence, premised upon privileged communication.

[37] On a couple of occasions during her time spent with Constable Groleau, Ms. Marcantognini voiced displeasure respecting her telephone call with Mr. Paquette. Her dissatisfaction mostly stemmed from the fact that the conversation did not end well.

[38] She indicated to Officer Groleau that Mr. Paquette did not let her finish talking and hung up on her when she was in mid-sentence. In response to being asked whether she was satisfied with her conversation with Mr. Paquette, she stated the following:

"No I was not satisfied with that conversation, I was not at all satisfied with that conversation. I was not at all."

[39] A little later, Officer Groleau asked whether she was not satisfied because of the fact that Mr. Paquette had hung up on her. To this inquiry she responded as follows:

"Because he was rude. And he was rude and acted like he didn't want to hear anything I had to say and acted like a prissy little person and said something like, well, I'm not getting paid for this."

A little further on in her interview, Ms. Marcantognini said that she felt that she received no advice.

[40] It was, however, obvious from other comments made by Ms. Marcantognini to Officer Groleau that she had in fact received advice from Mr. Paquette. After submitting to the first breathalyser sample she stated: "My lawyer said not to tell you anything, don't answer anything".

[41] A short time later, in make reference to having spoken to Mr. Paquette, she further indicated: "He said I don't have to do anything, he was angry with me and he hung up the phone and that all he kept stressing was don't answer their questions". She also added: "The lawyer guy said I can't speak to you and he told me not to trust anybody".

[42] The following factors are relevant to the issue of Ms. Marcantognini's contact with counsel:

• She had been provided with a current list of lawyers (and telephone numbers) to chose from;
• The officer did not participate or influence her in her choice of counsel from the list;
• Mr. Paquette is a well-known local lawyer with a number of years of experience;
• The discussion she had with him only ended after she had spoken to him for approximately eight minutes;
• The conversation she had with Mr. Paquette was held in private;
• It may be gleaned from Ms. Marcantognini's comments to Officer Groleau that advice had been given;
• There is no evidence of Ms. Marcantognini expressing concern to Officer Kidder about advice received. It was he who had facilitated the call to Mr. Paquette.

[43] The court must be cautious in dealing with the issue of "adequacy" of advice. In this situation it strongly appears that Ms. Marcantognini's discontentment resulted from how her conversation with Mr. Paquette ended as opposed to whether she had received advice.

[44] Ms. Marcantognini kept repeating herself and talking almost incessantly during her interview with Constable Groleau. This appeared to a large extent to be a manifestation of her lack of sobriety. She may have wanted to keep talking while Mr. Paquette wanted the conversation to end. He may have eventually chosen to hang up on her but that does not mean that he did not provide her with advice during the course of the approximate eight minute conversation. The utterances to Constable Groleau were consistent with her having received advice from Mr. Paquette.

[45] This is not one of those cases where a person detained indicates diligently and reasonably that the advice received was inadequate. Ms. Marcantognini's dissatisfaction related to words exchanged with Mr. Paquette relating to how the conversation ended. It would not be appropriate on these facts to jump to the conclusion on infer that she did not receive advice or adequate advice from Mr. Paquette. Officer Groleau was not expected on these facts to try to measure the quality of the advice she had received and he was entitled to proceed as he did.

[46] Defence counsel mentioned that it may not have been prudent for the Crown to have allowed Constable Kidder to review the affidavit in support of the application sworn to by Sharon Burton on November 3, 2014. In his submission, this may have given the officer an opportunity to fill in the gaps.

[47] In these circumstances I do not find that much turns on the fact that Officer Kidder reviewed the affidavit in order to better provide a response. Defence counsel had already been provided with full disclosure including Constable Kidder's notes and will-say statement. He was also provided with Constable Groleau's notes and will-say statement as well as a copy of the video statement taken during breath testing.

[48] Constable Kidder was thoroughly cross-examined. I found his evidence to be forthright and measured. Where his notes lacked detail, he simply told the court what his usual practice in similar circumstances might or would be. In measuring his evidence against the overall weight of the totality of the evidence, I do not find that the officer in any way attempted to formulate unreliable responses.

4: DECISION

[49] I do find in conclusion that Ms. Marcantognini was afforded a reasonable opportunity to speak with counsel of choice. She did not diligently and reasonably indicate that the advice she received was inadequate and no further measures were required to be taken by police.

[50] As applicant Ms. Marcantognini has failed to establish on a balance of probabilities that she suffered a violation of her section 10(b) Charter right to counsel. Accordingly the application shall be marked dismissed.

Released: December 19, 2014

Signed: "Justice Randall W. Lalande"