Court File and Parties

Ontario Court of Justice

Date: 2017-10-25

Court File No.: Durham Region 998 16 35746

Between:

Her Majesty the Queen

— and —

James Holtby

Before: Justice J. De Filippis

Heard on: September 11, 2017

Reasons for Judgment released on: October 25, 2017

Counsel

Mr. I. Skelton — counsel for the Crown

Mr. R. Greenway — counsel for the defendant

Judgment

De Filippis, J.:

The Charge and Issues

[1] The defendant was charged with having care or control of a motor vehicle with a blood alcohol level that exceeded the legal limit ("over 80"). He asserted that the breath test results were obtained in a manner that violated his rights as guaranteed by sections 8 and 10(b) of the Charter. Otherwise, there is no dispute about the integrity of the evidence proving that the defendant is guilty.

[2] Section 8 protects a person against unreasonable search and seizure. The argument presented relates to the approved screening device (ASD) used at the roadside. For oral reasons given at trial, I dismissed this motion. These reasons deal with the only remaining issue, section 10(b). The defendant claims that he was not told and did not understand that he could obtain free legal advice at the roadside, before he provided samples of his breath into the ASD. I have focused on the evidence relevant to this issue.

Facts

[3] On July 15, 2016 at 1:34 AM P.C. Gibbs was driving a police cruiser southbound on Simcoe Street in the Township of Scugog and observed a motor vehicle approach in the opposite direction. He determined that the vehicle was travelling at 111 km/per hour in posted 80 km/per hour. The officer made a quick U-turn and stopped the vehicle. The defendant was the driver and lone occupant. In explaining that he had been stopped for speeding, the officer detected a "moderate odour" of alcohol. When asked if he had consumed alcohol, the defendant admitted to "one beer". When pressed on the point, he said "two beers", and then "three or four at most". The officer noted that the defendant's eyes were slightly bloodshot but that his speech was fine and, when asked to exit the vehicle, the defendant walked without difficulty.

[4] By 1:42 AM, P.C. Gibbs formed the opinion that the defendant had operated a motor vehicle with alcohol in his system and radioed for an ASD to be brought to the scene. The officer testified that he read the standard ASD demand and right to counsel from the back of his notebook. With respect to the latter, he stated as follows:

It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a Legal Aid lawyer. If you are charged with an offence you may apply to the Ontario Legal Aid Plan for assistance. 1-800-265-0451 is a toll-free number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice right now. Do you understand?

[5] According to the officer, the defendant said he understood and when asked if he wished to contact counsel replied "Ah, no". At 1:49 AM, another officer arrived with the ASD; identified as the Dragger Alcotest 6810. The defendant provided a suitable sample of his breath into this device and registered a "fail". On this basis, at 1:52 AM, he was arrested for the offence before the court and, again, advised of his right to counsel. The defendant said he understood and when asked if he wished to contact counsel, replied, "it's probably smart, sure". At 2 AM, the officer read the standard breath demand to the defendant.

[6] P.C Gibbs testified that he believed the defendant possessed a cell phone. He added that had the latter wished to call a lawyer from the roadside, he could have done so; that is, the officer would not have prevented that.

[7] The defendant was transported to the nearest police station and arrived at 2:08 AM. I have the benefit of a video record of the booking process. When asked by the Sergeant if he knew he "could call a lawyer", the defendant paused and the arresting officer intervened to say that while being transported to the station, the defendant had asked to speak to duty counsel. The Sergeant said the police would "call a lawyer for you, do you have one" and the defendant replied, "I'm not a trouble maker, I don't have one". At 2:15, another officer placed a call to duty counsel.

[8] P.C Robertson confirmed the chronology of events as described by P.C Gibbs. She testified that the latter read the right to counsel to the defendant from the back of his notebook on both occasions at the roadside, before and after the ASD tests. She added that she was the officer who placed the call to duty counsel at the station at 2:15 AM. That call was returned three minutes later and the defendant spoke to the person in private for five minutes.

[9] P.C. Bowers is a qualified intoxilyzer technician. There is no issue about the integrity of the approved instrument or the test results. This witness obtained two suitable samples of the defendant's breath at 2:42 and 3:05 AM with truncated readings of 120; that is, over the legal limit.

Defendant's Evidence

[10] The defendant is 50 years old. He is married, with two children and employed as a millwright. For the most part, his evidence is consistent with that of the Crown. The only significant difference is with respect to his understanding of the availability of immediate free legal advice. Specifically, he testified that after being subjected to the ASD demand and informed of this right to counsel, he did not know "it could be free legal advice on the spot". In this regard, he stated that while he could not recall the exact words spoken by the officer, he "thought it had to be 'my lawyer'" and that he "did not hear 1-800 number part". A little later in testimony he clarified that the "1-800 number…was definitely not said". According to the defendant, he had a cell phone in his possession and would have spoken to duty counsel at the roadside, because he "wanted any advice I could get".

[11] After being told he had failed the ASD test and arrested for the present offence, the officer again advised him of his right to counsel. The defendant testified that this was the same version as before – without reference to immediate and free legal advice and that he replied "it would be a good idea to talk to a lawyer". He acknowledged the video record at the station in which he told the sergeant that "I'm not a trouble maker, I don't have a lawyer" but testified that he did not know about "a free lawyer". The defendant confirmed that he spoke to duty counsel and added that he did not understand much of what was said as "it sounded like the person was reading off a page". In this regard, the video record from the breath testing room shows that when asked by P.C. Bowers if he "had spoken to a lawyer", the defendant replied, "yeah, for whatever that was worth".

[12] The defendant conceded that P.C. Gibbs appeared to read from the back of a notebook when advising him of the right to counsel and that, on both occasions, he responded that he understood. He testified that "I guess I understood wrong" and insisted that he was never advised about "duty counsel" until he arrived at the police station. When reminded that during the booking process, P.C. Gibbs advised the sergeant that they had discussed this in the cruiser en route to the station, the defendant confirmed the conversation and added, in trial testimony, "But what is duty counsel? At no time was I made aware it was free legal advice".

[13] The defendant testified that he was "very nervous" at being pulled over by the police and felt "overwhelmed" at being subjected to breath demands and the arrest.

Legal Analysis

Section 10(b) of the Charter

[14] Section 10(b) provides that, "Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right". This has been interpreted to impose three duties on the police when a person is arrested or detained: (1) Inform the person of the right to counsel; (2) Provide a reasonable opportunity to exercise this right if counsel is desired, and (3) Curtail questioning and compulsion to make a decision or participate in a process that could ultimately have an adverse effect at an eventual trial, until that reasonable opportunity has been exercised.

Defence Submissions

[15] The Defence argues that P.C. Gibbs had a duty to afford him these rights because the defendant was not in a position to make the ASD demand "forthwith" as provided by statute. Moreover, it is submitted that the police must ensure that the defendant understands his rights. In this regard, counsel relies on the defendant's testimony that the police did not tell him about free and immediate legal advice or the 1-800 number. It is also said that the "booking room video supports his [claim of] confusion".

Crown Submissions and Court's Analysis

[16] The Crown argues that the Charter claim must fail because P.C. Gibbs had no duty to advise the defendant of his right to counsel. That right was suspended because given the limited time between forming his opinion and the arrival of the ASD, the demand was made "forthwith". The leading case on point is R. v. Quansah, (2012) ONCA 123. On this basis, I accept the Defence argument and reject that of the Crown. Indeed, P.C. Gibbs' testimony undermines the Crown position as he admitted he did not know when the device would arrive and that is why he provided the defendant his rights to counsel. However, I agree with the Crown's second submission that the defendant has failed to discharge his onus to show, on a balance of probabilities, that his rights were breached.

Credibility and Evidence

[17] The two officers at the roadside and the defendant agree with respect to much of what transpired at that scene. In particular, all three confirm that P.C. Gibbs read the right to counsel from the back of his notebook. Other than the defendant's testimony, there is no basis for me to conclude that the officer failed to read the entire passage. Moreover, other evidence supports the police testimony that the option of free and immediate legal advice was not omitted. It is clear that duty counsel was discussed with the defendant in the cruiser. It may be, as the defendant now claims, that he did not appreciate that duty counsel meant free and immediate legal advice and, in this regard, I accept that he felt nervous and overwhelmed on the night in question. However, I am confident that any confusion on his part was not apparent to the officers, in particular, at the roadside. The defendant, at that scene, did not say or do anything to suggest confusion on his part. Indeed, when asked if understood his rights the defendant said – twice – that he did.

Legal Principles on Right to Counsel

[18] A person detained or arrested must be reasonably diligent in exercising his/her right to counsel. See: R. v. Richfield, [2003] O.J. No. 3230 (Ont. C.A.). The information provided by the police must be conveyed in a manner comprehensible to the person. In the absence of something indicating that the detainee does not understand, recitation of the usual 10(b) information package concerning the right coupled with information about legal aid and duty counsel is sufficient. If there is a basis to doubt comprehension, the police have an obligation to reasonably ascertain that the rights are understood and, if not, to take steps to ensure comprehension. See: R. v. Vanstaceghem (1987), 36 C.C.C. (3d) 142 (Ont. C.A.) and R. v. Baig (1987), 37 C.C.C. (3d) 181 (S.C.C.).

Conclusion

[19] I find police fully complied with the informational component of s. 10(b). As already stated, any confusion on the part of the defendant about the availability of free and immediate legal advice was not conveyed by him to the police at the roadside. On the contrary, he expressed understanding of what was said to him. The Charter motion must fail.

[20] The defendant is found guilty.

Released: October 25, 2017

Signed: Justice J. De Filippis