Ontario Court of Justice
Central West Region Brampton, Ontario
Between:
HER MAJESTY THE QUEEN
-and-
KEVIN WILSON
REASONS FOR JUDGMENT
Duncan J.
Facts
[1] The defendant is charged with exceed 80, offence date November 8, 2013. He contends that his right to counsel was infringed or denied and that the incriminating breath tests results should therefore be excluded.
[2] The essential facts are as follows: The defendant was stopped by P.C. Edward Nicholson at a one-man RIDE checkpoint shortly after 3 am. He failed the ASD, was arrested and read rights to counsel. He said he wanted to call a named lawyer – Pat Pemberton. Once at the station it was discovered that there was no lawyer by that name in the lawyer's book or revealed by a computer search, though there was a Shauna Pemberton listed on the Law Society web site. The defendant acknowledged that he had been wrong about the name and that it was Shauna Pemberton that he wanted. A call was placed by the arresting officer to the only number available. A recorded greeting confirmed that it was Ms. Pemberton's office and invited the caller to leave a message. There was no forwarding or after hours number given. In the presence of the defendant, PC Nicholson left a message. It was then just after 4 am.
[3] Nicholson conducted a further computer search for a number for Ms. Pemberton and came up with the same number that he had already called. At 4:12 he placed a "cautionary call" to duty counsel. He turned the defendant over to the Qualified Technician, P.C. Haramis, who began the preliminary steps in the breath testing procedure including receiving grounds, reading cautions and reading the breath demand. Meanwhile Nicholson did a computer search on Canada 411 for "Shauna Pemberton in Brampton" and received a list of eight listings for "S. Pemberton" with area codes all over Ontario, none in 416 and only two in 905. He called none of them, explaining that he was not about to call people at 4 am based solely on their having a surname in common with the requested lawyer. He did call the same Pemberton office number again two more times. He put one of these calls on speaker so the defendant could hear the Pemberton office greeting. He did not leave a new message, feeling that it would be redundant to the message already left.
[4] During these calls and procedures the defendant complained that he had not personally been given use of the phone to call and leave the message. When PC Haramis went over his rights to counsel again the following exchanges took place:
HARAMIS: You have the right to telephone any lawyer you wish and have a conversation in private with that lawyer. Do you understand?
WILSON: I didn't have that right to conversate with anybody, but okay.
HARAMIS: Okay, and you understand that right?
WILSON: I really don't 'cause I didn't get the chance to leave a message or conversate with anybody, so no, I don't….Sorry, that was left on my behalf…By an officer….I was not given that right. It was taken.
HARAMIS: Do you wish to call a lawyer now?
WILSON: Probably not gonna get that right, so guess not.
HARAMIS: How are you not getting that right?
WILSON: I didn't get to do it the first time so we'll leave it as is
OFFICER [1]: (Speaking from outside of the room.) So Kevin, I don't know why, I, I keep hearing you complain about the fact I left a message because I was on the phone. Would it-would you feel better if we call back and …
WILSON: So don't word it as th-….
OFFICER: …you can-, do you wanna, do you wanna phone? No, but sir?
WILSON: NO, it's okay.
OFFICER: (Speaking from outside of the room.) Do you wanna leave a message? Do you want us…
WILSON: You said what you had to say.
OFFICER: …to call back and you leave a message? I did,sir.
WILSON: I'm annoying you and it is what it is…
OFFICER: (Speaking from outside of the room.) You were under arrest…
WILSON: …and you used the f-word…
OFFICER: …sir, and I told them exactly what it was.
WILSON: …and you've said what you needed to say…
OFFICER: (Speaking from outside the room.) I told them exactly…
WILSON: …so it is what it is.
OFFICER: …you're under arrest, sir. Yes.
WILSON: Yeah.
OFFICER: (Speaking from outside the room.) You're right, I did.
[5] At about 4:27 duty counsel returned the call. P.C. Nicholson entered the breath room and told the defendant that he had called Ms. Pemberton again and had received the same message. He went on to say…
OFFICER: …Obviously she's not gonna return the call. Duty counsel has called back. His name is Gary Johnson. He's now on the phone. He's been given your details and he awaits you in the room if you wish to speak to him. You're being given the opportunity to speak to him.
WILSON: Sure. Why not?
OFFICER: Okay. Come out sir.
[6] The defendant then spoke to duty counsel, finishing at 4:29. Before he had that consultation, he had told the QT that he would not provide breath samples. After speaking to duty counsel he expressed no dissatisfaction nor did he request to call Ms Pemberton again or to call any other lawyer. He testified that he was actually anxious to get it over with because he had to get ready to go to work later that morning. He provided samples at 4:37 and 4:59 am registering readings of 106 and 101 respectively.
Counsel of Choice
[7] The Charter application asserts that the defendant was denied access to counsel of choice – Ms. Pemberton.
[8] There have been many cases involving similar fact situations and a large body of case law has developed. While each case turns on its particular circumstances (R. v. Wilding, 2007 ONCA 853, at para 2), I am of course bound by the principles and directions set by the appellate courts in indistinguishable cases. In particular I am of the view that this case is governed by the Court of Appeal decision in R. v. Littleford.
[9] In Littleford the defendant was arrested at around one am. He asked to speak to a specific lawyer – Mr Cohen. Police called Cohen's office and left a message, then immediately put in call to duty counsel but did nothing else. The defendant was initially reluctant to speak to duty counsel but eventually did so. He made no complaint re his consultation with duty counsel or any further request.
7 The appellant argues that his s. 10(b) rights were violated because he expressed the wish to speak to his own lawyer, and was not given a reasonable opportunity to do so. The basis for this submission is his assertion that after a perfunctory attempt was made by the officer to reach that lawyer, the officer immediately contacted and put the appellant in touch with duty counsel, contrary to his wishes and therefore contrary to his rights.
8 On a Charter motion, the onus is on the accused person to prove a breach of his or her Charter rights on a balance of probabilities. The difficulty with the appellant's position in this case is that he did speak to duty counsel before taking the breathalyzer test. He neither raised any concern at the time, nor did he testify on the voir dire to suggest that he misunderstood his rights at the time or that the conduct of the police officer affected his ability to assert those rights. The Trial Judge made a finding that speaking to duty counsel "seemed to satisfy him at the time." There is no basis on the record to disturb that finding.
[10] Accordingly, even where the police make only a "perfunctory attempt" to contact counsel of choice and then "immediately" put the detainee in touch with duty counsel, if he speaks with duty counsel and expresses no dissatisfaction, there is no breach of his right to counsel.
[11] The only distinctions between the present case and Littleford go against the defendant. His case is weaker in that, as discussed below, it is my view the attempts to contact counsel of choice here were more than perfunctory and the police waited a reasonable length of time for counsel to respond before offering duty counsel. In light of Littleford the defendant cannot succeed in his argument.
Were Reasonable Efforts Made?
[12] Alternatively, if I am wrong in the above conclusion, I will deal with the defence submission that the police efforts to contact counsel of choice were inadequate to satisfy their implementation duties under the Charter.
[13] The defence argues that the police should have done more to track down a home number for Ms. Pemberton; they should have called the numbers returned by the Canada 411 computer search; they should have located and searched phone books and other paper directories; they should have let the defendant personally do some or all of the above. I will deal with each of these points below but remind myself that the question is not whether police could have done more but whether what they did do was reasonable: R. v. Blackett; see Kenkel: Impaired Driving in Canada: the Charter cases 2nd ed P 192.
1. House Calls
[14] Counsel for the defendant cross-examined at length and made submissions to the effect that the police should have done more to find another phone number for Ms. Pemberton. In the context of this case where they had already reached her office and left a message, the submission amounts to a contention that they should have tried to call her at home. This included but was not limited to calling some most or all of the numbers for S Pemberton disclosed in the 411 computer search.
[15] I acknowledge that in many reported cases it seems to be assumed that if they are unable connect with counsel through his office or business number, police should make some effort to find a number and call requested counsel at home. In Richfield para 11, it is included as one of the things that could have been done. At least one case has held that even where local counsel had made it known to the police that he did not want to take after-hours calls, the police should attempt such contact anyway: R. v. Tonello, 2005 O.J. 5731 (CJ). With respect I disagree.
[16] I am firmly of the view that, as a general rule, where contact has been made with a lawyer's office and no after-hours or emergency number is provided by that office, the police need not – in fact should not – attempt to find and contact a home number. By not providing such number on the office message the lawyer has made it clear that he or she does not want after-hours calls – as clear as if he had explicitly said so. The police should not ignore that clear message nor, arguably, should they permit the detainee to do so.
[17] In considering the question of home calls it is useful to keep in mind that the law on counsel of choice in this situation does not distinguish between cases where there is a pre-existing solicitor-client or personal relationship and those where the detainee enjoys no such relationship but just pulls the name out of his memory or the air. "I wanna call uh.. er.. what's his name…oh yeah.. {insert famous lawyer's name here}" I cannot accept that the law should require the police to find numbers and place calls at 4 am to the home of counsel – famous or otherwise - just because a detainee gives that name and is persistent in his demand. The detainee's interest is not the only one to be considered. This is particularly so having regard to the fact that counsel of choice in this situation is far less important than at trial: R. v. Wilding, at para 13, the legal issues involved are relatively straightforward and where duty counsel – provided at public expense specifically for this purpose - is available. Some regard must be had for the privacy of counsel and the interests of the police to not be put in the position of having to encroach upon that privacy.
[18] In my view, having reached a current office number for the requested lawyer with no further number provided, the police fulfilled their duty by leaving a message and waiting a reasonable time for a return call.
[19] Even if I am wrong re the above, it would make no difference in this case because the police did attempt to find a home number but did not succeed. However, counsel for the defendant submits that, in order to meet the standard of reasonableness, the police were obliged to call the numbers for S. Pemberton (or at least some of them) that were returned by the Canada 411 search. I reject that submission. Far from being required, it would clearly be unreasonable for police to engage in such shot-in-the-dark intrusive calling at 4 am.
2. Telephone Books and Directories
[20] It is argued that police should have sought out and searched telephone books and paper legal directories or provided same to the defendant to do so himself.
[21] Statements found in some cases to the effect that police should provide telephone books to the detainee or search such books themselves have to be read with regard to the city or location in which those cases arose and the era in which those decisions were rendered. As for location, unlike most places, there has never been a single telephone book for the Greater Toronto Area, a heavily populated area divided into many different municipalities. Each has (or had) its own telephone book(s). A lawyer who appears in our local Brampton court could live in any of these municipalities (or elsewhere) or have an office in any of the others (or elsewhere). Police could not be expected to have, much less search, all of the possible phone books for the GTA. Even in former times, resort to a phone book to find anyone in the GTA was very much a hit and miss proposition.
[22] Further, this is the computer era, not the phone book era. Much has changed in the past few years and phone books are now largely obsolete, rarely used or even seen. Comments about phone books in cases decided only a couple of years ago must now be considered passé. In this case both officers were uncertain whether there were any phone books at the station but if so, according to Nicholson, they would be out of date and in his opinion, computer searches of the Law Society, Google and Canada 411 were the best sources with the most up to date information. This seems obvious. In my view police who have done a computer check of the most relevant and current sources are not required to look for or through paper phone books or other paper directories - "because it's 2015!" - to borrow a phrase.
3. Wait Time and Discouragement
[23] It is argued that the police should have told the defendant that he had the right to wait a reasonable time for Ms. Pemberton to call back: R. v. Prosper. However, the fact is that the police waited 29 minutes after leaving the first message before suggesting that she wasn't going to be calling and that duty counsel should be considered. In my view that period – almost half an hour - was a reasonable time to wait. There was no point telling the defendant that he had a right to wait a reasonable time if a reasonable time had already passed.
[24] It is also argued that police suggesting that Ms Pemberton would not be calling back was inappropriate in that it discouraged the defendant from waiting longer and pushed him into accepting duty counsel. I disagree. He did not have the right to wait any longer. Due diligence required him to pursue other possible options at that point. I see nothing wrong with police telling him bluntly that which was pretty obvious – that Ms. Pemberton would not be calling: R. v. Willier, 2010 SCC 37. The defendant agreed in cross-examination that he had come to the same conclusion himself.
4. Self-Help
[25] It is argued that the police should have let the defendant call and leave his own message for Ms. Pemberton and should have let him do his own searches.
[26] A number of cases, mainly in Alberta, declared a rather hard and fast rule that, unless the detainee is incapable of doing so, he should be left solely in control of making contact with counsel; the police role should be limited to doing no more than providing the phone and the phone books: see R. v. Akot, 2000 ABPC 100; R. v. McLinden, 2004 ABPC 7. The Alberta Court of Appeal has now rejected this notion: R. v. Wolbeck, 2010 ABCA 65. In any event, no such firm rule has ever gained traction in Ontario where again the question is seen as turning on all of the circumstances of the particular case: see R. v. Ghaznavi, 2011 ONSC 5686.
[27] In this case the defendant did not ask to do any searches on his own. His main and persistent complaint was that he had not been permitted to leave the message for Ms Pemberton himself. It is difficult to understand why this mattered so much to the defendant since he was present when the message was left. When he persisted, he was given an opportunity to leave his own message and declined. Accordingly, whatever be the scope of a detainee's right to self help there was no denial of that right in this case since he was offered all that he asked for – but then declined.
Conclusion re Counsel of Choice
[28] For the reasons given above, I conclude that there was no infringement of the defendant's right to counsel. His counsel of choice was unavailable. He was offered and accepted duty counsel and was satisfied. On the more in depth analysis, the police took reasonable steps to facilitate contact with counsel of choice. She was unavailable. After waiting a reasonable time an alternative was offered and accepted.
Another Lawyer?
[29] At the end of the defendant's evidence, in answer to a question from the Court the defendant said that he would have liked to have done a computer search himself, not for Ms. Pemberton but "for other lawyers in the GTA who do DUI's". He said he did not ask to do so because he didn't know that he could ask to look for another lawyer. To that point, the focus of the application and the questioning was all directed to the issue of the quest for Ms. Pemberton.
[30] It may be unfair to the Crown to have this late breaking issue considered by the Court but it would also be unfortunate for the defendant to leave it unresolved. I will deal with it.
[31] The Court of Appeal in R. v. Traicheff, 2010 O.J. No. 5355 adopted this comment made by the trial judge in that case:
Appropriately the police should advise the detainee after waiting a reasonable period of time for his lawyer to return the call that no call has come in from his lawyer and ask him if he would like to consult another lawyer. Alternatively the police should ask the detainee whether he has another telephone number where his counsel of choice could be reached or give him a telephone directory to see if he could find his lawyer's name and another telephone number where he could be reached.
[32] In the present case, the defendant was not asked if he would like to consult another lawyer after attempts to reach Ms Pemberton dead-ended. It is submitted by the Crown that the general statement made in the reading of rights both on arrest and again in the breath room that he was entitled to "call any lawyer you wish" covered the point. However I don't think that it did. It does not clearly convey the idea that he could try another lawyer if he is unsuccessful in reaching his first choice – nor do I think that would be obvious to him or to anyone else.
[33] In the result we have a situation where the Court of Appeal says he should have been given the "other lawyer" advice but he was not, and the defendant saying he would have pursued that option if he had been told that he could.
[34] Is the above passage from the Court of Appeal a direction or a suggestion? I think it is the latter. No mandatory language such as "must" is used. Moreover mandating any particular step would be inconsistent with the Court's flexible approach that turns on the circumstances of the particular case. If it is merely a suggestion, failure to adhere to it does not constitute a Charter violation, provided that the other steps taken by the police to facilitate contact with counsel were reasonable – and I have concluded above that they were.
[35] If I am wrong and the failure to advise re the right to consult another lawyer constitutes an infringement of the right to counsel then on the Grant analysis it must be said that infringement relates to a rather subtle and nuanced aspect of the rights to counsel. The infringement can hardly be viewed as serious. But for this blemish, the police complied with all of their obligations under the Charter and the defendant received legal advice before providing breath samples – the object of the 10(b) exercise. There is no suggestion that the defendant had a second lawyer in mind to call had he been asked. He testified that he was anxious to get out of there so he could regroup and be back in Toronto in time for work in the morning. The impact of the omission on his Charter protected rights was minimal if not non-existent. While the facts of the case put it at the low end of the spectrum, drink/drive offences are serious and the public interest in disposition on the merits is substantial.
[36] It is significant that the facts of the present case are almost identical to Traicheff and the evidence was not excluded at trial even under the more exclusion oriented pre-Grant 24(2) analysis, the Court of Appeal agreeing with that decision. See also Wilding where the evidence was also admitted under 24(2).
[37] There is nothing about this case that would justify exclusion of the breath results. They are admitted.
Endnote
[38] I feel obliged to comment on one further matter. The defendant testified that Nicholson was aggressive towards him saying he was "fucking annoying" when he made the mistake re Pemberton's name. He made much the same allegation while in the breath room, where it was captured on the recording. I have heard the defendant's complaint and I believe it. The exchange shows an attitude of hostility and abrasiveness that cannot be justified or tolerated, particularly when triggered merely by the innocuous and understandable error re a lawyer's name.
[39] It is a serious matter. Attitude can be infectious within any group including and maybe especially within a police force. It detracts from the appearance of professionalism and creates an aura of bullying and abuse of authority. It will often lead to a like response from the detained person, escalating tension, increasing the chances of non-co-operation or even violence. At a minimum it can become a distraction and create a barrier to the detainee exercising sound judgment in respect of his Charter rights while in police custody. One can see that very thing occurring in the defendant's initial defiant stance displayed on the breath room video.
[40] Having given the matter much anxious consideration I have been driven to the conclusion that what occurred, while unfortunate and inexcusable, ultimately had no material impact on the case – the exercise by the defendant of his Charter rights, his provision of breath samples, or the fairness of his trial. The conduct was not so serious as to justify a stay and, quite properly, none was sought. For these reasons, apart from recognizing the wrongfulness of the conduct and expressing disapproval, there is no further action or order that would be appropriate for the court to take in the circumstances of this case.
January 13, 2016
B Duncan J
R Baran for the defendant
R Lemke for the Crown
Footnotes
[1] PC Nicholson
[2] An example of the detainee in a similar situation to Littleford NOT agreeing to speak with duty counsel can be found in R. v. Richfield. In that case the police efforts were again minimal if not perfunctory but they waited well over an hour before insisting that the defendant speak to duty counsel. The defendant refused to speak to anyone other than his named counsel. The Court held that the defendant was not diligent in the exercise of his right to counsel and the fact that the police could have done more did not detract from the defendant's fatal lack of diligence. See extended discussion and summary of the principles to be derived from Littleford and Richfield in R. v. Blackett, 2006 O.J. No. 2999 (ON Sup Crt Ferguson J).
[3] R. v. Vernon, 2015 ONSC 3943 suggests that my interpretation of Littleford is not correct: see para 42 and 43. On the other hand Blackett (footnote 2 above) supports my interpretation. With respect I do not accept the distinction of Littleford made in Vernon. Accordingly I choose to follow Blackett.
[4] "Could" – not "should"
[5] There may be exceptions such as where there is some special relationship between the detainee and requested counsel, or where the situation is exceptionally serious or urgent.
[6] Whether the police should permit the detainee to personally make such a call if he insists is admittedly a more difficult question. Arguably he should be able to do anything that he could do if he was not detained. It need not be decided here since no home number was located in any event. Whatever his personal right to call may be, I am of the view for the same reasons as above that the police have no duty to make such enquiries or calls themselves or suggest or encourage the detainee to do so personally.
[7] On its own, the reference to "another lawyer" by the Court might be taken as including duty counsel. However on the facts of Traicheff the defendant was provided with duty counsel and the breach that was found by the trial judge was the failure to take a number of steps including inquiring if there was another lawyer he would like to call. In the context of those facts that reference is clearly to another private lawyer: see trial judgment [2007] O.J. 4600 at paras 7 and 21.
