Court Information

Ontario Court of Justice

Date: April 28, 2018

Central West Region Brampton, Ontario

Parties

Between:

Her Majesty the Queen

-and-

Anhum Shariq

Reasons for Judgment

Before: Duncan J.

Counsel:

• A. Berg for the Crown
• D. Gomes for the Defendant

Facts

[1] The defendant is charged with impaired and over 80. The case is defended solely on Charter grounds.

[2] On April 7, 2017, at around 2:50 am, the defendant was seen driving a small car on a road within a CN railroad yard. An employee investigated because it was not usual, and somewhat dangerous, to have a passenger vehicle within the yard where there can be moving trains and to which access is controlled by a lifting gate. The employee spoke to the defendant and believed him to be under the influence. He had the police called. The police officer who responded, Cst. Jennifer Long, also formed the opinion that the defendant was impaired. He was arrested and read his rights to counsel. He said he wanted to speak to David Gomes.

[3] On arrival at the police station Cst. Long placed a call to a number (361) for Mr. Gomes and left a message on an answering machine. It was agreed at trial that this was Mr. Gomes' office number. The recorded greeting on that number referred callers to a second number (820) – Mr. Gomes' cell phone. That number referred the caller back to the 361. It did not take messages. The officer again called 361 and left a second message. It was then 3:52 am.

[4] Fifteen minutes later, at 4:07 am, Cst. Long asked the defendant if he wanted to speak to duty counsel. He declined. She then asked "Do you not want to speak to your lawyer?" to which the defendant replied "Fuck you".

[5] In her evidence Cst. Long was not terribly clear as to where she got the 361 number that she first called. She had no note but suggested that she conducted a search in a lawyer's directory as well as a Google search. It was agreed at trial that on the date of the offence, as now, a Google search would have returned as a first item, the link to Mr. Gomes' web site that prominently featured a 24 hour contact number (647) staffed by a live monitor. Calling that number would have provided the best chance for reaching Mr. Gomes at 4 am. However this phone number was not discovered and called by the officer. The defence suggests that the only explanation is that there was no Google search conducted and further suggests that the 361 office number was provided by the defendant. [1] Given the lack of note, the uncertainty of the officer's recollection on the point and failure to find the 647 number I am satisfied that either no Google search was done or that if done, it was not done in competent or thorough manner.

[6] It should be noted that the 647 24 hour contact number was not provided in the greeting message on either Mr. Gomes' office or cell phone lines.

[7] At 4:12 the defendant was taken to the breath room and turned over to the qualified technician, Cst. Caplan, who almost immediately asked the defendant whether he wanted to speak to a lawyer. The defendant said that he "had no reason to". He was argumentative and interruptive, demanding to know how the officer could have arrested him for drinking and driving when she had not seen him driving. Caplan read the rights to counsel again. The following exchange took place: [2]

• Q: You have the right to retain and instruct counsel without delay do you understand?
• A: If I don't find my lawyer what does that mean
• Q: We will get back to that. You have the right to speak to a free legal aid lawyer right away. Do you understand?
• A: Yes
• Q: You can call any lawyer you want and have a conversation in private with that lawyer. Understand?
• A: I understand
• Q: 1-800 (etc) is a number you can call right now for free legal advice. Understand?
• A: No comment
• Q: Do u wish to call lawyer now?
• A: No comment
• Q: Primary caution read
• A: No comment
• Q: Secondary caution read
• A: No comment (plus an inaudible statement)
• Q: Breath demand read
• A: I am ready for the test
• Q: Getting back to the lawyer – its 4 am. I understand that you provided a number for a lawyer to Cst. Long and messages were left. It is 4 in the morning and they haven't called back - do you want to call a free lawyer?
• A: [at this point the defendant launched into a lengthy soliloquy. It was hard to follow but involved a mix of events that happened years before and the events of the evening of the present offence].

[8] At 4:29 the defendant provided his first sample, betraying blood alcohol content of 180 Mgs%. The second sample at 4:50 similarly produced a reading of 180.

Analysis

Right to Counsel

[9] It is first argued that the defendant's right to counsel of choice was infringed by an insufficiently diligent search by Cst. Long for a contact number for Mr. Gomes. Where the police undertake to contact counsel on behalf of a detainee they must be reasonably diligent in doing so: see R v Maciel, 2016 ONCJ 563, where Stribopoulos J suggested a list of steps that the police should follow to fulfill their obligation.

[10] While I tend to agree with this view, I am not sure that the Court of Appeal does: see R v Littleford and R v Richfield. Both of these cases involved perfunctory attempts by police to reach counsel of choice. In Littleford, after leaving a message on the lawyer's office line late at night the police almost immediately offered duty counsel. The accused accepted, spoke and made no complaint or further request; in Richfield the police waited almost an hour for the lawyer to call and then offered duty counsel. He declined. In both cases the Court of Appeal found no breach of the Charter and affirmed the conviction. In Richfield the Court concluded (para 12):

The appellant, upon being informed that the lawyer that he had asked the police to call had not called back, 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. The appellant was not reasonably diligent in exercising his right to counsel in the circumstances. The fact that the police could have made greater efforts earlier does not detract from the appellant's own lack of diligence at a later stage in exercising his right to counsel.

[11] This then raises the question of whether the police in this case waited a sufficient length of time. This has relevance both to whether this case is distinguishable from Richfield and in its own right to whether the police held off as they were required to do.

[12] To recap the evidence: A message for Mr. Gomes was left at 3:49 and again at 3:52. Fifteen minutes later, at 4:07, duty counsel was offered and declined. An attempt to find out if the defendant still wanted to talk to Mr. Gomes was met with a rude "Fuck you". Twenty minutes after the first message was left the defendant entered the breath room and rights to counsel were repeated. The reality of the situation re the likelihood of Gomes calling was explained and duty counsel offered and declined. The first sample was taken at 4:29 – 40 minutes after the message was left, with no response.

[13] Was this a reasonable length of time? I think that it was. I agree with Cst. Caplan's reasoning that at that time of day, counsel will either call back in a short period of time or not at all. It is not as if they are in court or dealing with clients. They are very likely sleeping and, if available and set up to take late night calls will respond quickly. If they do not, it is a fair inference that they are not available at all or are not taking such calls.

[14] In the circumstances of this case, it is my view that the police held off for a reasonable and sufficient length of time. On this finding, Richfield is indistinguishable in principle. It follows that, as in that case, the fact that the police might have done more in attempting to reach counsel is overtaken and negated by the defendant's lack of diligence in exercising his 10b right and accordingly there was no infringement of that right. [3]

[15] Having said that, as mentioned above, I tend to agree with my colleague in Maciel and if I was not otherwise directed by the Court of Appeal, I would find that the efforts made by the police to facilitate contact with counsel were insufficient and amounted to a 10b breach. In the event that I have misconstrued or misapplied the Court of Appeal judgments, I will consider this alternative under 24(2) below.

[16] Finally, it is argued that there was a breach of 10b in the failure of the police to advise the accused, where counsel of choice could not be reached, of the right to call another private lawyer apart from duty counsel. I am not convinced that this is a legal requirement in the informational component of section 10b duties. The argument has its genesis in words used by the SCC in Prosper – but that was before the duty counsel system became ubiquitous. I am not aware of any authoritative decision that affirms such an additional informational duty where duty counsel is immediately available, and the detainee is so informed.

[17] To be clear, I am not suggesting that a detainee who is unable to reach counsel of choice cannot make a second choice. The passage from Richfield above affirms that he can – but that it is up to him to make the request. As in Richfield, in this case there is no suggestion that the defendant had another lawyer or any wish to look for one.

[18] Accordingly, in my view there was no deficiency in the information provided to the defendant and no breach of 10b. But again, in the event that this conclusion is wrong, I will deal with the question of exclusion under 24(2).

Section 24(2) Analysis

[19] With respect to the last point re failure to inform of a third alternative, if there was a breach in this regard, it was not serious. The over-all conduct of the police cannot be criticized. The defendant was provided – twice – with the multipart information re rights to counsel as dictated in the well-established standard "warning" which included the advice that he could call any lawyer he wanted. The police followed the book and were patient and professional with a somewhat difficult, interruptive and vulgar defendant. The informational defect, if there was one, was with respect to a debatable and, at highest, nuanced and subtle point. It is understandable that the police might not be familiar with it. The impact on the defendant's Charter 10b right of the alleged omission was non-existent. There is no suggestion in the evidence that the defendant, who bears the burden on 24(2) would have wanted to call any other private lawyer.

[20] With respect to the failure of Cst. Long to do a computer search or a sufficiently thorough one, again it is my view that that this cannot be considered serious in the context of the circumstances of this case. As per the discussion above, the case law does not mandate such a search in every case. At highest what is required will vary depending on the circumstances. In situations like the present one an officer might reasonably believe that there was no other number to look for since neither office nor cell phone recorded greetings referred to one. Further, it should be kept in mind that any additional search that might have been done by Cst. Long was effectively cut short by the defendant himself when, after messages had been left and 15 minute wait, the officer's next inquiry of the defendant was met with a hardy "Fuck you!".

[21] As for impact, the Court of Appeal has recently confirmed that, in general, the taking of breath samples is minimally intrusive and therefore the impact on Charter interests is minimal: R v Jennings, 2018 ONCA 260. Further, the impact at issue in this case relates only to counsel of choice. In the breath test situation, the practical impact of lost opportunity to consult with counsel of choice is near non-existent where duty counsel, trained and specialized in exactly this area, is available: see R v Wilding, 2007 ONCA 853. The approach of the Court of Appeal in the cases cited reflects this reality. Finally, in this case the police officer's shortcomings were no more responsible for the defendant not reaching his chosen counsel than counsel's own failure to link his office and cell phone number with the after-hours number. If the officer is faulted for, over a span of 15 minutes, not thinking to do something that might have assisted in facilitating client-solicitor contact, what should be said about a lawyer who would maintain a phone messaging system for months or years that similarly failed to do the same? In my view the impact – the failure to reach counsel of choice – resulted from circumstances for which the police, defence counsel and the defendant himself share responsibility. In sum, the total impact related to counsel of choice was minimal; the state contribution to that impact was even less.

[22] All three Grant factors favour admission of the breath test results.

[23] There are no other issues raised on the exceed 80 charge [4]. The defendant is found guilty.

Impaired Driving

[24] The defendant drove through and damaged the lift gate into the railroad yard, a place where he had no right or reason to be. He declared himself lost to the CN employee who quickly formed the impression that the defendant was impaired, an opinion shared by the attending police officer.

[25] In transport and at the station the defendant displayed a lack of civility – demanding to see a male officer, swearing at the female officer. Such traits are hardly the exclusive property of the inebriated but they do have a tendency to come out when inhibitions are suppressed by alcohol. I have had the opportunity to watch the defendant in the breath room on DVD. He comes across as the drunk at the end of the bar; mood swings, shaking hands at one moment and argumentative and difficult the next, fixated on silly points ("how can she arrest me when she didn't see me driving"), rambling shaggy dog stories, and not-so-clever cleverness ("No Comment").

[26] I am satisfied beyond a reasonable doubt that the defendant's ability to drive was impaired by alcohol. He is found guilty on that charge as well.

Disposition

The defendant is found guilty on both charges: impaired driving and driving with a blood alcohol content over 80 mg%.

Released: April 28, 2018

B Duncan J.

Footnotes

[1] This was the understanding of the QT Cst. Caplan as per the exchange set out in para 7.

[2] Taken from my notes. Not guaranteed verbatim.

[3] The finding also answers another argument – that the police failed to provide a Prosper warning – that is, tell the defendant that he had a right to wait a reasonable time for his counsel to call back. I have held in the past and see no reason to hold otherwise now, that there is no point in telling a detainee that he is entitled to wait a reasonable time if that reasonable time has already expired: R v Wilson, [2016] O.J. No. 183.

[4] An argument was put forward that there were no reasonable grounds for arrest and demand. This issue was not included in the defendant's Charter application and was shy on merit anyway.