Court File and Parties
Ontario Court of Justice
Date: February 13, 2018
Court File No.: Brampton 16-1046
Between:
Her Majesty the Queen
— and —
Julia Hurst
Before: Justice S. Caponecchia
Heard on: January 23, 2018
Reasons for Judgment released on: February 13, 2018
Counsel
Greg Hendry — counsel for the Crown
Anthony Andreopouplos — counsel for the defendant Julia Hurst
CAPONECCHIA J.:
Contents
- INTRODUCTION
- I. EVIDENCE ON THE VOIR DIRE
- A. POLICE EVIDENCE
- B. THE APPLICANT'S EVIDENCE
- II. DEFENCE POSITION
- III. CROWN POSITION
- IV. ANALYSIS
- CONCLUSION
INTRODUCTION
[1] Ms. Hurst is charged with "Over 80." She was investigated on January 24, 2016 at 1:40 p.m. She was stopped as she was driving out of a LCBO. She was arrested after she failed a roadside screening device. Both her breath sample readings were 271 mg of alcohol per 100/ml of blood. They were taken at 3:42 p.m. and 4:06 p.m.
[2] The defence does not dispute that Ms. Hurst was operating a motor vehicle with a blood alcohol concentration in excess of the legal limit. The only issue is whether her 10(b) rights were infringed, and if so, whether her readings should be excluded.
I. EVIDENCE ON THE VOIR DIRE
[3] A very focused voir dire was conducted on January 23, 2018. The Crown called PC Wood and PC Halfyard. Ms. Hurst testified. Much of the evidence is not in dispute.
A. POLICE EVIDENCE
[4] PC Wood testified that following Ms. Hurst's arrest, at 2:05 p.m., he began to read her rights to counsel. She indicated she understood her rights. When asked whether she wished to speak to a lawyer now, Ms. Hurst said "yes" and identified a specific lawyer – Karl Toews. She did not have any contact information for him. When she was asked if she understood that she could be put in touch with a free legal aid Duty Counsel using a 1-800 number, she responded "of course I understand."
[5] Upon arriving at the police station PC Wood made numerous efforts to contact her lawyer of choice and subsequently made the following 6 attempts to reach Karl Toews:
At 2:39 p.m. PC Wood looked up Mr. Toews' number in the 2016 legal directory. He could not find it. He accessed the Law Society Website and located a 519 number and left a message.
At 2:56 p.m. he called a 1-800 for Mr. Toews. The number was located on the internet. It is an answering service. He left a message with a person named Sandy.
At 3:24 p.m. PC Wood called the 519 number again and left another voicemail for Mr. Toews.
At 3:35 p.m. PC Wood called the 1-800 again and left another message with a person named Sandy.
At 3:41 p.m. he called both the 519 number and 1-800 again, with no success.
[6] On video at 3:25 p.m., the breath technician, PC Halfyard, can be seen preparing the Breathalyzer Instrument. At 3:27 p.m. an officer can be heard outside the breath room saying "let's start," following which PC Halfyard entered the breath room and PC Wood and Ms. Hurst follow. Some introductory explanations are provided to Ms. Hurst by PC Halfyard and at 3:29 p.m. PC Wood exits the room. PC Halfyard proceeded to have the following exchange with Ms. Hurst:
OFFICER: So I understand that there is a lawyer that you wish to speak with, Karl Toews, is that correct?
HURST: Correct.
OFFICER: Okay and is that your counsel that I guess you have dealt with before?
HURST: Correct.
OFFICER: So what we have done so far is we have tried to a few numbers that we have located from him, the first one being an officer number for his office out in London. 519-649-6666 that I found on the Upper Law Society of Canada and we were unable to reach him at that number.
I did another google search and I was able to find a 1-800 number, 1-800-699-0806 we have tried that a, we haven't been able to reach him. So we tried him about 30 minutes ago, both those numbers, so far no luck. If at any point in time he does call back we will get you on the phone with him.
HURST: Ok.
OFFICER: Okay do you have a contact number at all for him?
HURST: No, no.
OFFICER: Ok, do you have another lawyer that you would like to speak with?
HURST: No.
OFFICER: Would you like to speak with duty counsel, which is free legal aid service?
HURST: No.
OFFICER: No, so if at any point in time you change your mind and you decide you want to have a conversation with another counsel let us know and we'll make some phone calls – if its duty counsel we can give them a call. If at any point in time during the process you change your mind just let me know. Obviously if at any point in time your counsel of choice calls back we'll get you on the phone with him. We will keep making attempts to see if we can reach him.
HURST: Ok.
OFFICER: But if we are not able to reach him unfortunately we cannot delay the process, I do have to take the breath test from you.
HURST: Right.
OFFICER: Umm, so that's kind of where we are right now.
[7] At 3:42 p.m., PC Halfyard proceeded to read Ms. Hurst a standard primary and secondary caution and a breath demand, he told her the only thing she must do is give him two breath samples. He tells her that she doesn't have to answer any questions. After a few unsuccessful attempts, at 3:47 p.m. Ms. Hurst provided her first suitable breath sample. While waiting to take a second sample, police told Ms. Hurst that they tried again to reach her counsel of choice but were unsuccessful. Ms. Hurst is asked again if she would like to contact anyone else, she declines.
[8] PC Halfyard was asked if he thought he was required to give Ms. Hurst a "Prosper warning." The officer testified that in this case he understood he had to wait a reasonable amount of time for counsel to call back, he had an obligation to let Ms. Hurst know what efforts police had been made and to caution her that she did not have to say anything to him. Once a reasonable amount of time had passed and after Duty Counsel was declined, PC Halfyard did not believe he had any other obligations to fulfill with respect to 10(b).
[9] Both officers took the position that they waited a reasonable amount of time for the lawyer to call back. The amount of time they wait varies from case to case.
B. THE APPLICANT'S EVIDENCE
[10] Ms. Hurst agreed that she asked to speak with Karl Toews and that she did not have any contact information for him. She does not dispute that the officers informed her of their efforts to contact her counsel of choice or that they offered to call any other lawyer or Duty Counsel for her.
[11] She explained that she declined to contact any other numbers because she didn't have any names or numbers of lawyers. She took the position in examination in chief that she declined legal aid Duty Counsel because she had never heard of that term before, it was a foreign concept and she had no idea what it meant. She said she knew she was in trouble and needed a bona fide lawyer to give her proper advice. She felt the onus was on her to give the police a name.
[12] In cross examination, she accepted that she was informed of her rights at the road side and that she was aware that a legal aid Duty Counsel is a lawyer that could give her free legal advice. She testified that if she was given a list or a book she would have selected someone but admitted she did not have anyone specific in mind as she did not know any other criminal lawyers. She agreed that she did not ask the police to 'google' any other lawyers for her.
[13] She testified that she spoke with Karl Toews before she left the station, at approximately 8:08 p.m.
II. DEFENCE POSITION
[14] The defence position is that Ms. Hurst:
a) Did not waive her right to counsel of choice and the onus is on the Crown to demonstrate she did, and,
b) If Ms. Hurst changed her mind and decided to proceed without counsel, a Prosper warning was required before proceeding to provide a sample. The absence of a Prosper warning amounts to a breach of the informational requirements of 10(b) and the readings should be excluded.
[15] Mr. Andreopoulos relies on the decision in R. v. Fountain, 2017 ONCA 596. He also asserts that the following cases support his position:
- R. v. Willier, 2010 SCC 37
- R. v. Bartle
- R. v. Manchulenko, 2012 ONSC 2558
- R. v. Manchulenko, 2013 ONCA 543
- R. v. Vernon, [2015] ONSC 3943
- R. v. Vernon, [2016] ONCA 211
III. CROWN POSITION
[16] The Crown's position is:
a) The Applicant has not established a breach of 10(b) on a balance of probabilities. The Police complied with their informational and implementation obligations, they made diligent efforts to contact Ms. Hurst's counsel of choice and waited a reasonable amount of time for her counsel of choice to call back. They waited for over 45 minutes after the first message was left for her lawyer during business hours before proceeding to take breath samples, and,
b) The Applicant was not duly diligent in exercising her rights as evidenced by her refusal to use the services of legal aid Duty Counsel when her lawyer did not call back;
c) A Prosper warning was not required because Ms. Hurst never changed her mind about speaking to Mr. Toews.
[17] The Crown relies mainly on the following cases in support of their position:
IV. ANALYSIS
[18] A long line of authority from the Supreme Court has placed the primary obligations concerning s.10 (b) rights on the police. The initial informational duty – advising the detainee of s.10 (b) rights – rests solely on the police. The subsequent implementation duties – providing a reasonable opportunity to exercise s.10 (b) rights and refraining from eliciting evidence – also rest solely on the police.
[19] However, there are two aspects of the s.10 (b) framework of rights and duties, where obligations are placed on the detainee. Furthermore, they are both essential obligations. In their absence, the police implementation duties are either not triggered or they are suspended.
[20] First, the detainee must assert, invoke, or trigger the right in some fashion.
[21] Second, a detainee must also be reasonably diligent in exercising s.10 (b) rights.
[22] The second obligation of the detainee was first developed in R. v. Tremblay (1987), 37 C.C.C. (3d) 565 (S.C.C.). It was a drinking and driving case and the accused was "violent, vulgar, and obnoxious" in response to a breath sample demand, and he was "stalling when he was given the telephone to contact a lawyer." Lamer J. stated a general s.10 (b) principle: "if a detainee is not being reasonably diligent in the exercise of his rights, the correlative duties ... imposed on the police ... are suspended and are not a bar to their continuing their investigation and calling upon him to give a sample of his breath."
[23] This "reasonable diligence" requirement has been repeatedly re-stated in the case law.
[24] In certain circumstances, an additional informational component is imposed upon the Police, commonly referred to as Prosper warning. In Prosper, at p. 274, Lamer C.J. described the required Prosper warning and its legal triggers in this way:
I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, the Police are required to tell the detainee of his right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the Police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. This additional informational requirement on police ensures that a detainee who persists in wanting to waive the right to counsel will know what it is he or she is actually giving up.
[25] In the more recent case of Fountain, the Ontario Court of Appeal stated that the police obligation to implement rights to counsel, hold off their investigation and provide a Prosper warning can be lost. In the case of a Prosper warning, there is no need to advise a detainee of what they will lose if they waive their right to consult counsel where the detainee has already forfeited that right by not being reasonably diligent in exercising it.
a) R. v. Prosper
[26] An appreciation of the facts in Prosper is important to a determination as to whether a Prosper warning was required in Ms. Hurst's case.
[27] In Prosper, the accused asserted his right to counsel after being arrested for drinking and driving. Over a 37 minute period, he placed 15 calls to a list of 12 Legal Aid lawyers. None of the lawyers responded to Mr. Prosper's calls because a Legal Aid job action that was occurring at the time. Mr. Prosper could not afford a private lawyer and therefore agreed to provide a breath sample without first speaking to counsel.
[28] In these circumstances, Lamer C.J.C. gave a judgment that has come to be known as the "Prosper warning" point of law. Lamer C.J.C. stated (at para. 44):
In circumstances where a detainee has asserted his or her right to counsel and has been reasonably diligent in exercising it, yet has been unable to reach a lawyer because duty counsel is unavailable at the time of detention, courts must ensure that the Charter-protected right to counsel is not too easily waived. Indeed, I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the Police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. This additional informational requirement on police ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up. [Emphasis added].
[29] Integral to the decision in Prosper was a finding that the accused had been duly diligent in exercising his rights prior to submitting to a breath test. As a result, the failure of the police to provide Mr. Prosper with the additional information resulted in the breath samples being excluded because a valid waiver had not been established.
b) R. v. Fountain, 2017 ONCA 596
[30] The Fountain case relied upon by the defence is not a drinking and driving case. The police arrested and cautioned the accused and he invoked his right to counsel. The Police tried to contact his lawyer, but the lawyer was out of town. The Police then gave the accused a choice – they told him that he could either wait until morning to try again or call Duty Counsel immediately. After he chose the former option, the officers began interrogating him without first giving him a Prosper warning.
[31] The Ontario Court of Appeal took issue with the manner in which the police presented Mr. Fountain with his two options -- as if it was a benign choice that Mr. Fountain was entitled to make. In the context of the case and the way in which the options were presented to the accused, the accused's decision to wait until the next day met the due diligence standard that gave rise to a Prosper warning. Since the police failed to provide a warning after the accused was found to have been duly diligent in exercising his rights, a Charter breach was made out because the Crown was unable to establish a valid waiver.
c) R. v. Richfield
[32] Unlike in Prosper and Fountain, the Ontario Court of Appeal in Richfield found that the accused had not been duly diligent in exercising his rights.
[33] In Richfield the police placed only one call to the detainee's counsel of choice and waited for over an hour for the lawyer to call back. During that time, the police refrained from making any further demands upon the appellant. More importantly, when the lawyer of choice had not called back, the police offered the appellant the assistance of Duty Counsel.
[34] Upon being informed that the lawyer he wanted had not called back, Mr. Richfield did not ask to make a further call to his counsel of choice or to another counsel. When asked if he wished the assistance of Duty Counsel, the appellant indicated that he did not. In these circumstances, the Court of Appeal held that Mr. Richfield was not reasonably diligent in exercising his right to counsel and no 10(b) breach was established. Moreover, the fact that the police could have made greater efforts earlier did not detract from the appellant's own lack of diligence in exercising his right to counsel.
[35] In another case, similar to Richfield, the accused asked to speak to a specific lawyer and stated he was "not accepting anyone else." In Van Binnendyk, the police located a phone number for the lawyer and left a message. After waiting one hour and no return call, they informed the accused of the result and asked him if he wanted another lawyer, he declined. He was told to let the police know if he changed his mind. Two breath samples were provided and no other requests to speak with a lawyer were made. The accused was found to have not been duly diligent in exercising his right to counsel and the 10(b) application was dismissed.
[36] More importantly, the Ontario Court of Appeal in Van Binnendyk held that in view of the findings of the trial judge, the discrete issue of waiver did not arise in the circumstances of this case. The court also reiterated the holding in Richfield:
That while an accused person has a right to his or her counsel of choice that right is not absolute. If the lawyer chosen in not available within a reasonable amount of time, the accused person will be expected to exercise the right to counsel by calling a different lawyer.
d) This Case
[37] In this case, I am satisfied that the police complied with their initial duty to inform Ms. Hurst of her right to counsel at the road side and they did so again on video in the breath room.
[38] I am also satisfied that they made efforts to implement her rights by making six attempts to reach her counsel of choice over a 45 minutes period prior to proceeding with the taking of two breath samples.
[39] I am also satisfied that the police waited a reasonable amount of time in the circumstances of this case. They left three messages on a business line during regular business hours when one could reasonably expect messages to be picked up. They also spoke with a live person and left three messages with an answering service, also during regular business hours when one would expect the messages to be passed on immediately. When they received no response, the police offered Ms. Hurst the option of calling another lawyer and Duty Counsel before proceeding with the tests, she declined both.
[40] I specifically do not accept the evidence Ms. Hurst gave in chief - that she didn't understand what legal aid Duty Counsel was, and this impacted her decision to decline it. I don't accept her evidence on this point for 3 reasons:
a) Firstly, I accept PC Wood's evidence that when he explained the option of free legal aid Duty Counsel at the roadside she was asked if she understood, she said "yes of course."
b) Two, in cross-examination she contradicted herself. She accepted that she was aware that a legal aid Duty Counsel is a lawyer that could give her free legal advice.
c) Three, the breath room video allows us to see the second time she was told about the option of speaking with another lawyer, this time by the breath technician. The words used by PC Halfyard made it obvious to her and anyone else that she was being offered the opportunity to speak with a free lawyer. I am referring specifically to the following exchange:
OFFICER: Ok, do you have another lawyer that you would like to speak with?
HURST: No.
OFFICER: Would you like to speak with duty counsel, which is free legal aid service?
HURST: No.
OFFICER: No, so if at any point in time you change your mind and you decide you want to have a conversation with another counsel let us know and we'll make some phone calls – if its duty counsel we can give them a call. If at any point in time during the process you change your mind just let me know. Obviously if at any point in time your counsel of choice calls back we'll get you on the phone with him. We will keep making attempts to see if we can reach him.
HURST: Ok.
[41] The use of the term "counsel" and "free legal aid" was an ample description provided to Ms. Hurst to bring home to her that it was an option for her to speak with a free lawyer after her lawyer did not call back. She expressed no confusion or hesitation when the option was laid out to her for a second time. She speaks fluent English and on video she displayed no signs of impairment, confusion or uncertainty about the information she was being provided.
[42] Given that, I am satisfied Ms. Hurst understood she had the option to access free legal advice and she chose to decline it after her own lawyer did not call back. I find her case is akin to the impaired driving cases of Richfield and Van Binnendyk, where no 10(b) breach was found.
[43] Like Ms. Hurst, the accused in Richfield and Van Binnendyk requested to speak to a specific lawyer and declined Duty Counsel after a reasonable amount of time had passed and their respective lawyers did not call back. In Richfield and Van Binnendyk, the accused failed to establish a 10(b) breach because they were found to have not been duly diligent in exercising their rights by failing to use Duty Counsel.
[44] Ms. Hurst's case is not analogous to the case of Prosper where the Supreme Court specifically found that Mr. Prosper had been duly diligent in exercising his rights after he called every Duty Counsel number provided to him by the Police and no one responded. Mr. Prosper ran out of options, such was not the case for Ms. Hurst.
[45] Unlike in Fountain, I don't believe the police in this case presented Ms. Hurst with a seemingly harmless option of waiting until the next day to speak to her lawyer. Quite the contrary, the breath technician made it very clear that he was proceeding with the taking of breath samples and before doing so asked her to consider speaking with a different lawyer or Duty Counsel. No officer suggested to Ms. Hurst that one option was to wait until the next day to speak with her own lawyer. They simply stated the obvious, that when and if her lawyer did call back, they would let her talk to him. In the context of the options presented to Ms. Hurst in this case, and the manner in which they were presented, I find that Ms. Hurst was not being duly diligent when she declined the option to speak to a free legal aid lawyer, approximately 45 minutes after the first message for her lawyer was left during business hours.
[46] I am satisfied that on the totality of the evidence, the police complied with their informational and implementation obligations and the responsibility fell upon Ms. Hurst to be diligent in the exercise of her rights. By failing to ask for another lawyer or use Duty Counsel after a reasonable amount of time had passed, she was not. Therefore, there was no requirement for the police to suspend the continuation of their investigation or provide her with a Prosper warning before proceeding to take breath samples.
CONCLUSION
[47] In the result, I am not satisfied on a balance of probabilities that a 10(b) breach has been established and the Charter application is dismissed.
[48] At the commencement of these proceedings, the Crown conceded that if the readings were excluded an acquittal would follow, and the defence agreed that if the breath sample were not excluded, a conviction would be the result.
[49] Accordingly, Ms. Hurst is found guilty of the one count she is charged with, driving her vehicle with in excess of the legal limit of alcohol in her body.
Released: February 13, 2018
Signed: Justice S. Caponecchia