Court File and Parties

Court File No.: 17-PO23106 Date: 2018-06-01

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Christopher Manuel

Before: Justice Paul Burstein

Heard on: March 14 and 15, 2018

Oral decision released: May 29, 2018

Reasons for Judgment released: June 1, 2018

Counsel:

• I. Skelton, for the Crown
• E. Chan, for the defendant Manuel

Judgment

BURSTEIN J.:

Introduction

[1] Sometimes less is more. It has also been said that sometimes there are things which "we don't know we don't know". Even a few misplaced words can unintentionally alter the intended meaning of what someone is saying. The resulting confusion may be even greater when the intended audience is unfamiliar with the subject matter. The issue in this case is whether the sum total of the words spoken by the arresting officer to Mr. Manuel about his s. 10(b) rights properly informed him of the options constitutionally available to him for exercising those important rights.

[2] Mr. Manuel stands charged with operating a vehicle while his blood alcohol concentration exceeded the legal limit. He is also charged with one count of "distracted driving", contrary to s. 78.1 of the Highway Traffic Act, relating to the arresting officer's claim that Mr. Manuel was using his cell phone as he drove past her. Indeed, that was the reason the arresting officer stopped Mr. Manuel's vehicle in the first place. Mr. Manuel is not charged with impaired driving. None of the officers involved in this case formed an opinion that his ability to drive was impaired by alcohol.

[3] There was no contest that Mr. Manuel was operating a motor vehicle at the time he was stopped, nor that an analysis of two breath samples which he later provided at the police station showed his blood alcohol concentration to be over the legal limit. Rather, Mr. Manuel's defence in this case focused on whether, prior to obtaining those breath samples, the police had violated his s. 10(b) Charter rights. Mr. Manuel submits that, as a result of that s. 10(b) violation, evidence of the breath test results must be excluded. He further submits that the Crown has failed to prove the Highway Traffic Act charge because any alleged use of his cell phone was excused by virtue of the fact that the device was mounted on the dashboard at the time and, thus, was in "hand-free mode".

Evidence at the Blended Trial and Voir Dire

[4] On the afternoon of Thursday, February 9, 2017, Cst. Liard, a 16-year member of the Durham Regional Police Service, was sitting in her police cruiser parked in a lot on the west side of Thickson Road in the Town of Whitby. She was part of a team of officers who had taken up various observation posts in the area on the lookout for drivers who were using their cell phones while driving.

[5] At approximately 12:21 p.m., Cst. Liard observed Mr. Manuel's black Ford pick-up truck pass by right in front of where she was parked. From no more than 20 metres away, she witnessed Mr. Manuel leaning on his centre console with his head looking down towards where he was holding his cell phone in one hand. Believing Mr. Manuel to have committed an offence under s. 78.1 of the Highway Traffic Act, Cst. Liard turned out on to Thickson Road and signaled Mr. Manuel to pull over. He stopped his vehicle almost immediately without incident.

[6] After having a brief discussion with Mr. Manuel about her reason for stopping him, Cst. Liard formed the belief that he had alcohol present in his body. At 12:27 p.m., she made a s. 254(2) demand for roadside screening sample. Mr. Manuel registered a "fail" on the approved screening device.

[7] At 12:28 p.m., Cst. Liard arrested Mr. Manuel for care or control "over 80". According to Cst. Liard, the following exchange then occurred (at 12:32 p.m.):

Liard: I am arresting you for exceed 80 mgs. of alcohol. 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 number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now. Do you understand?

Manuel: Yes.

Liard: Do you wish to call a lawyer now?

[8] At this point in her narrative, Cst. Liard's testimony became less clear and, in my view, less reliable. Her notes of what was said both to and by Mr. Manuel at the roadside about rights to counsel were decidedly unhelpful. Her memory of what was said in that regard was even more vague and inconsistent. In chief, she first testified that her notes indicated that when asked if he "wish[ed] to call a lawyer", Mr. Manuel had specifically said that he wished to call duty counsel (an answer which I find he did not actually give). When asked a second time in chief about this same exchange, Cst. Liard testified that Mr. Manuel had actually only said "yes" in response to the standard question about wishing to call a lawyer. After Mr. Manuel had indicated that he did wish to call a lawyer, Cst. Liard followed her usual practice of asking if a detainee had "a lawyer in mind". In light of Mr. Manuel's negative response to that follow up question, Cst. Liard then asked if he would like to call duty counsel. To that specific question, Mr. Manuel responded affirmatively. Having considered all of the evidence, I find that this was the exchange which led Cst. Liard to conclude that Mr. Manuel wished to call duty counsel.

[9] After completing the arrest at the roadside, Cst. Liard transported Mr. Manuel to the police station. At 12:49 p.m., Mr. Manuel was paraded before Sgt. Woolley. Sgt. Woolley confirmed that Mr. Manuel wanted to exercise his s. 10(b) rights. Like Cst. Liard, Sgt. Woolley posed a similar sequence of questions which elicited a similar positive response from Mr. Manuel when he was offered a chance to consult with duty counsel:

Woolley: Have you been advised of your right to call a lawyer?

Manuel: Yes.

Woolley: Do you wish to make a telephone call to a lawyer?

Manuel: Yes.

Woolley: Do you have a lawyer in mind?

Manuel: No.

Woolley: So there is duty counsel … free legal advice for you…

Manuel: Perfect.

Woolley: That's who you'd like?

Manuel: Yes.

Woolley: That's your choice?

Manuel: Yes.

[10] Like Cst. Liard, Sgt. Woolley said nothing to Mr. Manuel about the police giving him an opportunity to access a telephone book for the purpose of choosing his own lawyer nor to a telephone for the purpose of contacting a third party to help find a lawyer. Indeed, when Mr. Manuel indicated that he would like to call his brother, Sgt. Woolley confirmed that the purpose of such a call would be so that Mr. Manuel could arrange for someone to come pick him up.

[11] At 12:57 p.m., following the completion of the parade, Cst. Liard called duty counsel. She was able to reach a lawyer right away. She then placed Mr. Manuel in a room where he was able to speak on the phone privately with that duty counsel until 1:27 p.m.

[12] After having spoken with a duty counsel lawyer, Mr. Manuel was then escorted into the breath room and turned over to Cst. Stinson, the breath technician. Before commencing the breath testing process, Cst. Stinson asked Mr. Manuel if he had been given an opportunity to consult with counsel. Mr. Manuel confirmed that he had. There was no further discussion between Cst. Stinson and Mr. Manuel about speaking to a lawyer.

[13] The testing proceeded with Mr. Manuel's two breath samples being measured as having a blood-alcohol concentration of 140 mgs. of alcohol in 100 ml. of blood.

[14] Mr. Manuel also testified on the voir dire portion of the blended hearing. In essence, he testified that he believed his only options for contacting counsel were to have the police call a lawyer he already "had in mind" or to speak with a duty counsel lawyer. He did not know that he could ask for a telephone book as no one ever told him that was an option. If he had been given that option, he would have looked for a lawyer who specializes in drinking and driving cases, as that is how he found the lawyer who he ultimately retained to defend him at trial. I found Mr. Manuel to be a credible witness. His answers were reasonable and not plagued by any apparent inconsistencies. I accept Mr. Manuel's evidence about what happened during the arrest and booking process. More importantly, I accept Mr. Manuel's evidence about his state of mind during that time. He did not appreciate that he had a right to choose counsel with whom to consult.

Did the Police Violate Mr. Manuel's s. 10(b) Charter Rights?

a) The Informational and Implementational Obligations Under s. 10(b) of the Charter When a Detainee Has Already Expressed a Desire to Consult Counsel

[15] In R. v. Bartle, the Supreme Court characterized the obligations imposed upon the police by s. 10(b) of the Charter as "informational" and "implementational":

This Court has said on numerous previous occasions that s. 10(b) of the Charter imposes the following duties on state authorities who arrest or detain a person:

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

(See, for example, Manninen, at pp. 1241-42; R. v. Evans, [1991] 1 S.C.R. 869, at p. 890; and Brydges, at pp. 203-4.) The first duty is an informational one which is directly in issue here. The second and third duties are more in the nature of implementation duties and are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel.

[16] In Bartle, the Supreme Court recognized that once a detainee has expressed an interest in exercising their s. 10(b) rights, there are additional obligations imposed upon the police to facilitate the detainee's ability to exercise those rights. The collection of rights guaranteed by s. 10(b) of the Charter includes the right to consult with counsel of choice. In its most recent decision on the scope of s. 10(b)'s right to counsel of choice, the Supreme Court of Canada in R. v. Willier confirmed that, as part of that package, a detainee has the right to choose the lawyer with whom to consult:

...the right to choose counsel is certainly one facet of the guarantee under s. 10(b)....

As a "facet of the guarantee under s. 10(b)", if a detainee has asked to speak with counsel, the police have certain obligations to facilitate a detainee's ability to choose a lawyer and to contact the lawyer they have chosen.

[17] Relying on other decisions from this Court, such as R. v. Panigas, R. v. Maciel, R. v. Lim, R. v. McFadden, R. v. Klotz and R. v. Sakharevych, the defence in this case contends that the police "channeled" Mr. Manuel towards duty counsel rather than facilitating his ability to choose between consulting private counsel or duty counsel. In some of the cases relied upon by the defence, the allegation of unconstitutional "channeling" was considered in terms of whether the police had violated their s. 10(b) implementational obligations. In other cases, the issue of "channeling" was determined by an examination of whether there was a violation of s. 10(b)'s informational obligations. In this case, I find that the unconstitutional channeling of Mr. Manuel to duty counsel occurred primarily as a result of the misinformation and lack of information which the police provided to Mr. Manuel about his s. 10(b) rights. While I have also found that the police did not fully comply with their implementational obligations, it was only because of the earlier informational failings that the implementational shortcomings contributed to Mr. Manuel's mistaken belief that he had no choice but to consult duty counsel.

b) The Police Did Not Comply With Their s. 10(b) Informational Obligations

[18] At no point did Cst. Liard ever inform Mr. Manuel that a telephone and telephone book would be made available to him so that Mr. Manuel could find a lawyer to call. I recognize that, in R. v. Devries, the Ontario Court of Appeal rejected the suggestion that, as part of the standard s. 10(b) warning at the roadside, the police must inform every detainee of a telephone later being made available at the station – that is, before the detainee has even asked to call a lawyer. Unlike the accused in Devries, however, Mr. Manuel did ask to call a lawyer. In the face of that clear assertion of his s. 10(b) rights, I must decide (1) whether Cst. Liard's recitation of the standard s. 10(b) warning left a residual misunderstanding of the options available to Mr. Manuel once he had asserted his s. 10(b) rights, and (2) whether the police discharged any additional informational obligations which arose as a consequence of Mr. Manuel having asserted his s. 10(b) rights.

i) The Misleading Nature of Cst. Liard's Initial Information About Mr. Manuel's s. 10(b) Charter Rights

[19] The initial information which Cst. Liard conveyed to Mr. Manuel about his rights included not just the wording of the standard s. 10(b) warning contained in her police notebook but also two supplementary questions which she posed immediately after – questions which effectively misled Mr. Manuel about the choices available to him once he had asserted his s. 10(b) rights. The police are obviously prohibited from directly telling a detainee that, unless they already know the name of a lawyer, the detainee would have no choice but to contact duty counsel. In my view, however, Cst. Liard's phrasing of s. 10(b)'s initial informational component indirectly created that same misapprehension.

[20] After reading Mr. Manuel the standardized s. 10(b) warning from the back of her police notebook, Cst. Liard asked Mr. Manuel if he wished to call a lawyer. He responded "yes". Cst. Liard did not end the s. 10(b) discussion there and simply transport Mr. Manuel to the police station where his s. 10(b) rights could be facilitated. Instead, Cst. Liard went on to ask Mr. Manuel to immediately make a choice about how he wanted to later exercise his s. 10(b) rights. She asked Mr. Manuel two further questions (as she "always" does): (1) if he had "a lawyer in mind" (to which he responded "no") and (2) if he would like to contact duty counsel (to which he responded "yes").

[21] The misleading effect of the supplementary questions posed by Cst. Liard can be illustrated by the following incremental variations to the standard s. 10(b) warning which Cst. Liard read from her police notebook:

1. You have the right to telephone any lawyer you wish but only if you know the name of a particular lawyer. If not, you also have the right to free advice from a legal aid lawyer and 1-800-265-0451 is a number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now. Do you understand? Do you wish to call a lawyer now? Would you like to speak with duty counsel?

2. You have the right to telephone any lawyer you wish if you know the name of a particular lawyer. If not, you also have the right to free advice from a legal aid lawyer and 1-800-265-0451 is a number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now. Do you understand? Do you wish to call a lawyer now? Would you like to speak with duty counsel?

3. You have the right to telephone any lawyer you wish. Do you know the name of a particular lawyer? If not, you also have the right to free advice from a legal aid lawyer and 1-800-265-0451 is a number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now. Do you understand? Do you wish to call a lawyer now? Would you like to speak with duty counsel?

4. You have the right to telephone any lawyer you wish. If not, you also have the right to free advice from a legal aid lawyer and 1-800-265-0451 is a number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now. Do you understand? Do you wish to call a lawyer now? Do you have the name of a particular lawyer? Would you like to speak with duty counsel?

5. 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 number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now. Do you understand? Do you wish to call a lawyer now? Do you have a lawyer in mind? Would you like to speak with duty counsel?

[22] In my view, the subtle connotative differences in these various phrasings are only matters of degree. The first two of the above variations would expressly mislead all detainees about their s. 10(b) rights; namely, that a detainee's right to choose counsel is available only to those detainees who already have a lawyer in mind. However, for many detainees, the latter phrasings would still produce the same misleading effect. Indeed, in the fifth example (which is what Cst. Liard said to Mr. Manuel), asking the last three questions in sequence fosters the misleading impression that a detainee must immediately decide between the options of trying to come up with the name of lawyer (i.e., "a lawyer in mind") or accepting the offer to speak with a duty counsel lawyer:

"Do you wish to call a lawyer now?"

"Do you [now] have a lawyer in mind?"

"Would you like to [now decide to] speak with duty counsel?"

It is of no constitutional significance that Cst. Liard did not intend to mislead Mr. Manuel in this way. For the purposes of deciding whether Mr. Manuel's s. 10(b) rights were violated, it is enough that Cst. Liard's articulation of the standard s. 10(b) warning was reasonably misunderstood by Mr. Manuel.

[23] While not all detainees would necessarily draw the incorrect inference from this sequence of questions, the fact that Cst. Liard's supplement to the standard s. 10(b) warning has the potential to mislead some reasonably-minded detainees (including Mr. Manuel) is enough to render it constitutionally invalid. When it comes to the phrasing of standardized Charter warnings, the Supreme Court of Canada has recognized that adding even just a few misplaced words can reasonably mislead some detainees into a misunderstanding of their s. 10(b) rights. Very recently, in R. v. G.T.D., a six-word question regularly posed by the Edmonton Police Service ("EPS") after having read the standard Charter warning produced the unintended effect of misleading some detainees about the s. 10(b) rights they may have just asserted. The potential to mislead some detainees was enough to render the EPS's supplement to the standard Charter warning constitutionally invalid.

[24] In this case, I accept Mr. Manuel's evidence that what he was told by the police led him to believe that his only choice was to speak with duty counsel.

ii) The Lack of "Additional Information" About His s. 10(b) Rights Compounded Mr. Manuel's Misunderstanding of the Choices Constitutionally Available to Him

[25] Although the focus of Lamer C.J.C.'s decision in Bartle was the information constitutionally required for a detainee to decide if they even want to call a lawyer, the broader purpose of s. 10(b)'s informational component was also discussed at length. In determining what information must be provided to detainees about their s. 10(b) rights, Lamer C.J.C. (for the majority) emphasized that the informational requirements of s. 10(b) are intended to ensure that detainees can "make informed choices and decisions" about whether to exercise any facet of the guarantee under s. 10(b). Lamer C.J.C. continued on:

To conclude, because the purpose of the right to counsel under s. 10(b) is about providing detainees with meaningful choices, it follows that a detainee should be fully advised of available services before being expected to assert that right, particularly given that subsequent duties on the state are not triggered unless and until a detainee expresses a desire to contact counsel …. [Emphasis added.]

The "available service" which the police in Bartle had failed to identify was free advice from duty counsel. Given the facts of that case, the decision in Bartle did not need to address what the police must tell a detainee about the "available services" relevant to the detainee's ability to make other "meaningful choices" about their s. 10(b) rights, like whether to find private counsel or just accept the offer of duty counsel.

[26] The issue of what additional information must be provided to a detainee who has asked to a call a lawyer was considered in Bartle's companion case of R. v. Prosper. In Prosper, a detainee who had initially asserted his s. 10(b) rights at the roadside later appeared to have chosen to forego exercising those rights. In order to ensure that the detainee's implied waiver of his s. 10(b) rights had been constitutionally valid, Lamer C.J.C. held that "additional information" should have been provided to the detainee. This additional information would have needed to make clear to the detainee the full scope of the s. 10(b) rights he was apparently choosing to forego.

[27] In Mr. Manuel's situation, he should have been provided with "additional information" that the s. 10(b) rights he had asserted included not just the right to call a lawyer but also the related right to a reasonable opportunity to choose the lawyer with whom to consult. Given the animating purpose of the informational component of s. 10(b) as set out in Bartle, having asserted his s. 10(b) rights, Mr. Manuel was entitled to additional information making clear to him that the reasonable opportunity to choose counsel would include an opportunity to access "available services" for doing so, namely, a telephone and a telephone book. Mr. Manuel was entitled to that important additional information before Cst. Liard put him in a position of having to make the choice between "a lawyer in mind" and duty counsel. Without that additional information, Mr. Manuel's putative "choice" of calling duty counsel was not constitutionally meaningful.

[28] In my view, informing a detainee who wants to call a lawyer of the s. 10(b) right to access a telephone and telephone book is the type of "additional information" which Prosper requires before the police may confront the detainee with a choice about how to exercise the s. 10(b) rights being asserted. In that regard, I agree with what Horkins J. said in R. v. Panigas:

… Because the police have taken it on themselves to be the exclusive conduit to legal advice, it is essential in my mind that they explain very carefully that the accused has options at this point in the process. It must be carefully explained that speaking to the provided duty counsel is not their only choice….

I also adopt Parry J.'s similar comments in R. v. Sakharevych:

It had to be patently clear to the police officer in this case that the accused did not have a lawyer and did not know one. When asked to assert his right, the accused was standing at the roadside. There was no phone book. There was no legal directory. Indeed, there was no phone yet. Upon arrival at the police station, the police officer made the phone call on behalf of the accused. He controlled 100% of the means by which the accused was put in contact with counsel. The accused did not even have the opportunity to dial the toll free number previously recited by the police officer. Contrary to the assertion made in the pre-written right to counsel, the accused did not have the power to "telephone any lawyer" he wished. Without a phone book and free use of a phone, that power was illusory – falsely advertised.

The difficulty with the approach taken by Cst. Schnarr, and with the policy he purported to follow, is that the police largely remove from the accused the ways and means by which he can employ any informed reasonable diligence in the exercise of his right. By removing these ways and means, they curtail the accused's ability to assert his free will or to even know its full scope.

The choices the accused does make are done in a near vacuum. That near vacuum effectively whittles down the options: call no lawyer, call the one provided by the police, or take a more combative stance with the armed uniformed officer who holds him in custody and demand rights many would not know exist.

[29] As cases like Panigas and Sakharevych have recognized, this additional informational obligation does not depend upon whether the detainee who has already asked to call a lawyer also asks the police for help in locating or contacting a lawyer. As Doherty J.A. explained in Devries:

…Nor, given the dynamics at play in a detention situation, should the onus be on the detainee to make inquiries as to how he or she might exercise the constitutional right to counsel.

Despite him having clearly asked to call a lawyer, Cst. Liard provided no additional information to Mr. Manuel "as to how he … might exercise the constitutional right to counsel", especially how he might be able to choose the lawyer with whom to consult.

[30] The courts in Alberta have held that, as part of the standard s. 10(b) warning, all detainees must be provided information about the availability of a telephone and telephone book should they want to call a lawyer. Alberta's version of the standard s. 10(b) warning reads as follows:

You have the right to retain and instruct your lawyer without delay. This means that before we proceed with our investigation you may call any lawyer you wish or a lawyer from a free legal advice service immediately. If you want to call a lawyer from a free legal advice service, we will provide you with a telephone and you can call a toll free number for immediate legal advice. If you wish to contact any other lawyer, a telephone and telephone books will be provided to you. If you are charged with an offence you may apply to Legal Aid for assistance.

Regardless of whether Ontario appellate courts have agreed that there is a constitutional obligation on police to similarly include this information as part of their standard s. 10(b) warning, the Alberta jurisprudence confirms that this additional information is important to detainees and that providing it will not impose an onerous obligation on the police.

[31] In this case, the constitutional significance of the lack of any such "additional information" must be measured in light of the misleading effect of Cst. Liard's initial recitation of the standard s. 10(b) warning. While her recitation of the s. 10(b) warning properly conveyed to Mr. Manuel his overall right to call a lawyer – a right which he then asserted – Cst. Liard's approach to the standard s. 10(b) warning left a misleading impression about Mr. Manuel's right to choose the lawyer with whom to consult. That initial misleading impression was never corrected by any "additional information" provided by Cst. Liard. Nor was that misleading impression cured by what was said and done by the police once Mr. Manuel was brought to the police station. When Mr. Manuel was paraded before Sgt. Woolley, Mr. Manuel was not informed about his right to access a telephone and telephone book so that he could choose a lawyer with whom to consult. Instead, like Cst. Liard at the roadside, Sgt. Woolley began by asking Mr. Manuel if he had "a lawyer in mind". When Mr. Manuel responded "no", Sgt. Woolley then suggested duty counsel. Not only did the parade process at the station fail to cure the informational problems originally created by Cst. Liard, it exacerbated them.

[32] If detainees are left in the dark about their right to access the tools needed to immediately choose and contact their own lawyer, detainees wishing to consult a lawyer will be left to believe that they have no choice but to accept the police offer of duty counsel. The combined effect of the misleading impression created by Cst. Liard's supplements to the standard s. 10(b) warning and the lack of additional information about the right to access the tools needed for choosing counsel, created a material deficiency in Mr. Manuel's ability to understand that there really was an alternative to consulting duty counsel.

iii) The Decision in R. v. Zoghaib is Limited to Its Narrow Factual Underpinnings and Does Not Apply to the Circumstances of This Case

[33] I do not agree with the Crown's contention that the appeal decision in R. v. Zoghaib stands for the broad proposition that, absent an express request to speak with a particular lawyer, there is nothing constitutionally wrong with the police offering duty counsel. Unlike this case, there was no issue in Zoghaib about the adequacy of the informational component. The arresting officer in that case had "read the standard rights to counsel at the roadside" and, according to the evidence of that officer (which was accepted at trial and on appeal), he had not said or asked anything about duty counsel. Indeed, after being read the standard s. 10(b) warning at the roadside, the accused in Zoghaib had told the officer that she did not wish to call a lawyer. It was only once she was back at the police station that she changed her mind. Accordingly, the summary conviction appeal decision in Zoghaib focused only on whether the police had complied with their s. 10(b) implementational obligations back at the police station. The appeal court made clear that such a determination "depends on the circumstances of each case". In Zoghaib, those circumstances included the fact that "[a]t the detachment [the accused] was seated in an interview room containing a phone and a telephone book" when she was again asked about calling a lawyer. In other words, the accused in Zoghaib was "informed" of the availability of a telephone and telephone book by virtue of the fact that they were actually made available to her. In light of those "circumstances", the appeal court in Zoghaib concluded that there were no informational or implementational shortcomings. As these Reasons make clear, I have found that the "circumstances" of Mr. Manuel's case are materially different from what was found to have happened in Zoghaib.

[34] In contrast to Zoghaib, more recent decisions from this Court have held that, in the face of s. 10(b) informational (or implementational) failings, a detainee may be able to demonstrate that their mistaken belief about duty counsel having been the only choice was attributable to the actions or inaction of the police. Of course, where an accused fails to testify or their testimony has been rejected, that accused is unlikely to meet their burden of demonstrating a s. 10(b) violation. In this case, however, I have accepted Mr. Manuel's evidence that, based upon what was said to him by Cst. Liard and by Sgt. Woolley, he mistakenly believed that there was no choice other than to speak with duty counsel. Both Cst. Liard and Sgt. Woolley implied that Mr. Manuel needed to have "a lawyer in mind" if he wished to call a lawyer of his choosing. Both Cst. Liard and Sgt. Woolley implied that if Mr. Manuel did not already have "a lawyer in mind", his only other option was to consult with a duty counsel lawyer. Neither Cst. Liard nor Sgt. Woolley ever corrected those mistaken impressions by expressly informing Mr. Manuel of his right to access a telephone and telephone book for the purpose of choosing counsel with whom to consult. I find that Mr. Manuel's misapprehension of his rights was attributable to the police failure to comply with the informational obligations in s. 10(b).

c) The Police Failed to Discharge Their Implementational Obligations Once Mr. Manuel Had Expressed a Desire to Consult With Counsel

[35] This is not a case where the detainee declined the initial offer of an opportunity to consult with counsel following the reading of the standard Charter warning. If Mr. Manuel would have responded "no" to Cst. Liard's "do you wish to call a lawyer" question following the standard Charter warning, the police would have been under no further informational or implementational obligations. Once they have fully complied with s. 10(b)'s informational requirements, the police are entitled to act upon the detainee's "no" response as a constitutionally valid waiver of the detainee's s. 10(b) rights. That, however, is not this case.

[36] There is no dispute in this case that when Cst. Liard asked him if he wished to call a lawyer, Mr. Manuel responded "yes". In the face of that express assertion of his s. 10(b) rights, the police were obligated to facilitate the exercise of Mr. Manuel's rights. As the Supreme Court of Canada recently emphasized in R. v. Taylor, "proactive steps are required to turn the right to counsel into access to counsel". Those proactive steps required the police to provide Mr. Manuel with access to a real telephone and to a telephone book once he arrived at the police station. Appellate courts have made clear that, having expressed a desire to exercise his s. 10(b) rights, it was not Mr. Manuel's obligation to also ask the police to facilitate the exercise of those rights.

[37] The police in this case did not provide Mr. Manuel with access to a real telephone and telephone book for the purpose of choosing a lawyer with whom to consult. Offering to place a telephone call to duty counsel on Mr. Manuel's behalf does not, in the circumstances of this case, amount to compliance with their s. 10(b) implementational obligations. Absent evidence that a detainee knowingly waived the right to access the tools which the police are obliged to provide, the police are not constitutionally permitted to take the shortcut to duty counsel. Nor is it enough for the police to say that the police station is set up in a way which did not allow them to provide Mr. Manuel (or any other detainee) with access to a real telephone or to a searchable database of lawyers. In Taylor, the Supreme Court held that "[c]onstitutional rights cannot be displaced by assumptions of impracticality".

[38] I agree with my judicial colleagues that it is not the role of the courts to second-guess police operational decisions, such as how to structure their facilities. However, where those operational decisions prevent the police from being able to comply with the most fundamental aspect of their s. 10(b) implementational obligation – providing access to a real telephone and to database of criminal lawyers (such a yellow pages telephone book) – the Crown will have no choice but to accept responsibility for trying to justify the resulting constitutional violations. By providing those who have expressed a desire to exercise their s. 10(b) rights with access to a real telephone and a list of lawyers (along with the toll free number for duty counsel), the police in Alberta afford a "reasonable opportunity" for detainees to exercise their s. 10(b) rights. Unless a detainee in Alberta expresses some timely concern about their ability to use those tools (e.g., the telephone was not working properly), the Crown in Alberta invariably has a "Taylor-made" basis for discharging its burden of showing that the police properly facilitated the exercise of the detainee's s. 10(b) rights.

d) Has the Crown Proven That Mr. Manuel Waived His 10(b) Right to Consult With Counsel of Choice?

[39] In response to the defence claim that the police violated Mr. Manuel's s. 10(b) rights by "channeling" him towards duty counsel, the Crown submits that the police were simply following the direction provided to them by Mr. Manuel. The Crown points to the fact that Mr. Manuel said "perfect" when asked by the police if he wanted to call duty counsel and said that he was satisfied with the "conversation" he had with duty counsel at the police station (when asked by the breath technician). Put differently, the Crown submits that the police were not constitutionally obliged to provide Mr. Manuel with the tools required to choose other counsel because Mr. Manuel expressly waived that right when he accepted the offer for him to consult with duty counsel.

[40] The Supreme Court of Canada has repeatedly held that when the Crown claims an accused has waived a Charter right the Crown assumes a burden of demonstrating that any such waiver was constitutionally valid. In the context of an alleged waiver of s. 10(b) rights, Lamer C.J.C. said in Prosper:

Given the importance of the right to counsel, I would also say with respect to waiver that once a detainee asserts the right there must be a clear indication that he or she has changed his or her mind, and the burden of establishing an unequivocal waiver will be on the Crown: Ross, at pp. 11-12. Further, the waiver must be free and voluntary and it must not be the product of either direct or indirect compulsion. This Court has indicated on numerous occasions that the standard required for an effective waiver of the right to counsel is very high: Clarkson v. The Queen, [1986] 1 S.C.R. 383, Manninen, and Evans, [1991] 1 S.C.R. 869. As I said in Bartle, at pp. 192-94 and 206, a person who waives a right must know what he or she is giving up if the waiver is to be valid... [Emphasis added.]

[41] In this case, the Crown has not met its "very high" burden of showing that Mr. Manuel knowingly waived his right to choose counsel when he acquiesced to the police offer to consult duty counsel. For the reasons set out above, I find that the police did not provide Mr. Manuel with the information required for him to have made a meaningful decision about giving up the right to choose counsel in favour of consulting duty counsel. I accept Mr. Manuel's evidence that he did not know he had a right to insist upon being given access to the tools required for choosing private counsel. To paraphrase what Lamer C.J.C. said in Bartle, the purpose of the right to counsel would be defeated if police were only required to advise detainees of the availability of a telephone and telephone book after some triggering request by the detainee. I find that it was because of what the police did and did not say (nor do) that Mr. Manuel was made to feel like he had no choice but to opt for duty counsel; that is, Mr. Manuel was indirectly compelled to forego his s. 10(b) right to consult with counsel of his choosing.

[42] In keeping with the reasons of the summary conviction appeal decision in R. v. Vernon, I am not persuaded that Mr. Manuel's failure to express dissatisfaction with the advice of duty counsel is sufficient for the Crown to prove that he waived his s. 10(b) right to consult with counsel of his choosing:

…[T]here is no positive obligation on a detainee to express dissatisfaction with the advice of duty counsel or to continue to request an opportunity to speak with counsel of choice in order to establish a breach of that right under s. 10(b). Indeed, in my view, it would be improper to impose such an obligation where, as here, the validity of any waiver of the right is in issue. Absent the type of circumstances that were present in Willier, where it was held that the detainee had simply chosen to speak to another lawyer rather than waive his right to counsel of choice, the onus is on the Crown to establish a valid waiver. To impose the obligation urged upon the court by the Crown would be to reverse that onus. Instead, evidence that a detainee failed to complain, seemed satisfied or no longer asked to speak to counsel of choice after speaking with duty counsel is simply evidence to be considered on the issue of waiver, where that issue arises.

As in Vernon, Mr. Manuel's failure to complain after speaking with duty counsel is explained by the fact that, faced with a lack of information about any alternative, Mr. Manuel would not have known that there was any purpose in complaining.

[43] I am satisfied from Mr. Manuel's evidence that, if given the choice, he would have opted to consult private counsel who specialized in drinking and driving cases. Given Mr. Manuel's belief that he was "okay" to drive when first stopped by Cst. Liard (because he had not consumed any alcohol since the night before), it is understandable that he would have wanted expert legal advice about his legal obligations. Mr. Manuel was constitutionally entitled to a reasonable opportunity to find and contact the criminal law specialist he desired. Rather than facilitate that opportunity, the actions of the police "channeled" Mr. Manuel towards accepting an offer he felt he could not refuse. There was no free and informed waiver by Mr. Manuel of his Charter right to consult with counsel of his choosing, just acceptance of the sole source of legal advice the police made available to him.

Should the Breath Test Evidence Obtained Following the Violation of Mr. Manuel's s. 10(b) Charter Rights Be Excluded Pursuant to s. 24(2)?

[44] The determination of whether a Charter violation ought to result in the exclusion of evidence must be made according to the framework set out by the Supreme Court of Canada in R. v. Grant. The three sets of factors to be balanced in deciding whether to exclude evidence pursuant to s. 24(2) are:

1. The seriousness of the Charter violation;
2. The significance of the impact of the Charter violation; and
3. The societal interest in having the case adjudicated on its merits.

In R. v. Harrison, the companion case to Grant, the Supreme Court cautioned courts that "[t]he balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision".

[45] Because this balancing exercise is a "qualitative one", I am not persuaded that the recent decision of the Ontario Court of Appeal in R. v. Jennings has any relevance to the s. 24(2) determination in this case. The Charter violation at issue in Jennings was a (marginal) violation of the defendant's s. 8 rights. Unlike the interests protected by s. 10(b) of the Charter, appellate courts have held that the s. 8 interests engaged by the breath testing process are "minimal". The judicial determinations in Jennings of the seriousness of that s. 8 violation and the significance of its impact are of no assistance to me in determining the seriousness and impact of the s. 10(b) violations in Mr. Manuel's case. The Court of Appeal in R. v. McGuffie said that "[t]he strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant". It is therefore hard to conceive how the Court's comments in Jennings about those "first two [Grant] inquiries" in a case involving a s. 8 breach, could somehow influence the s. 24(2) determination for a case involving a s. 10(b) breach. That math does not add up.

1) Seriousness of the Violation

[46] The seriousness of a Charter violation may increase either because the individual actions of the police officers responsible for the constitutional misconduct evidenced a reckless disregard for the Charter or because there were institutional failings which contributed to the officers' Charter-infringing behavior. In this case, I find that both elements are present.

[47] I accept that the violation of Mr. Manuel's s. 10(b) rights was not the product of any wilful disregard by any of the officers involved in this case. To be clear, however, the s. 10(b) violations in this case were most certainly not a result of any "good faith" belief in a state of the law which has since been overturned. The constitutional obligation to provide a detainee with meaningful access to a telephone and telephone books dates back over 30 years. The importance of facilitating access, rather than imposing barriers, to s. 10(b) rights was re-affirmed by the Supreme Court of Canada in 2014. A detainee's right to choose counsel with whom to consult also dates back almost 30 years. That too has been more recently re-affirmed by the Supreme Court of Canada. The fact that the police officers involved in this case may have (wrongly) believed that they were doing nothing unconstitutional does not change the fact that both they, and the police service responsible for training them, have exhibited a reckless disregard for the constitutional obligations imposed by s. 10(b) of the Charter.

[48] The apparently systemic nature of the s. 10(b) Charter violation in this case substantially increases the seriousness of that violation. The evidence shows that Cst. Liard is not the only DRPS officer who has developed a practice of supplementing the standard s. 10(b) warning with questions that serve to undermine a detainee's understanding of the full scope of their s. 10(b) rights. Cst. Stinson testified that after he asks the "do you understand" question at the end of the standard s. 10(b) warning, he too would follow that up by asking the detainee whether they already have their own lawyer or whether they want to speak with duty counsel. For Cst. Stinson, like Cst. Liard, either a detainee already knows of a lawyer or they will simply consult with duty counsel. Like Cst. Liard, Cst. Stinson expressed no appreciation for his constitutional obligation to afford detainees a meaningful opportunity to choose the lawyer with whom to consult.

[49] Similarly, the booking sergeant in this case appears to share that same unconstitutionally narrow view of the s. 10(b) right. When Mr. Manuel was paraded upon his arrival at the police station, Sgt. Woolley asked him if he had "a lawyer in mind". Sgt. Woolley did not ask Mr. Manuel "who" he may like to call, nor did Sgt. Woolley say anything to Mr. Manuel about having a right to access a telephone and telephone book in order to decide who to call. Instead, like Csts. Liard and Stinson, Sgt. Woolley confronted Mr. Manuel with that same unconstitutional choice: if he already knew the name of a lawyer the police would help contact that lawyer; if not, then Mr. Manuel had the option – and the only option – of speaking with duty counsel.

[50] As Horkins J. observed in R. v. Panigas, there is reason to be concerned that police indifference to s. 10(b)'s right to choose counsel is motivated by administrative expediency:

The dynamic of a drinking and driving investigation creates a certain amount of pressure to get the testing done within the two-hour evidentiary presumption timeframe. Prosecutions are tremendously assisted when a certificate can be relied upon for presumptive proof of blood alcohol concentration. Getting past the stage of the process where advice from counsel is required is very easy if the suspect just takes the offer of duty counsel and "gets on with the program". It is therefore a persuasive suggestion that the police might be very attracted to that significantly more direct route to the breath room. It is understandable then that the police might be motivated to steer suspects to duty counsel rather than spend the time and effort involved in contacting private counsel especially when they have very limited resources available themselves to try and find a particular lawyer's contact information.

While the concern for expediency may be understandable, it is constitutionally unacceptable.

[51] I find that the s. 10(b) violation in this case was on the serious end of the spectrum and therefore weighs in favour of exclusion.

2) Significance of the Impact on Mr. Manuel's Charter Rights

[52] At the second stage of the Grant analysis a court must assess the seriousness of the infringement from the perspective of the accused. Did the breach seriously compromise the interests underlying the rights infringed? Or was the breach merely transient or trivial in its impact?

[53] The Crown argues that the impact of any alleged breach of Mr. Manuel's s. 10(b) right to counsel of choice is lessened because Mr. Manuel was able to consult with duty counsel. According to Cst. Liard, Mr. Manuel spoke with duty counsel for almost 30 minutes. Mr. Manuel raised no complaint about his consultation with duty counsel and in fact told Cst. Stinson that he was satisfied with that "conversation".

[54] I am not prepared to find that, merely because Mr. Manuel spoke with duty counsel, the impact of being denied an opportunity to choose counsel was mitigated. The evidence establishes that Mr. Manuel only accepted the opportunity to speak with duty counsel because the police had failed to inform him of his right to access the tools needed to choose counsel. The fact that Mr. Manuel raised no complaint after his consultation with duty counsel falls short of discharging the Crown's burden of proving that he would have done nothing different had he been able to consult with counsel of choice. I have accepted Mr. Manuel's evidence that he was made to feel that speaking with duty counsel was his only option and that he would have chosen a private lawyer had he known he could.

[55] I echo on my own comments in R. v. Ali about the significant impact of being denied the opportunity to consult with counsel of choice in an "over 80" case, especially when a detainee may have had reason to believe they were not impaired:

While there may be less of a need to consult with a particular lawyer at the time of arrest, the reasoning of the Court of Appeal in R. v. McCallen speaks to the importance of a detainee being able to at least choose a type of lawyer with whom to consult at the time of arrest:

There are sound reasons why this right was considered to be a fundamental component of the criminal justice system well before the enactment of the Charter and why it was recognized as a right deserving of constitutional protection in the Charter. The solicitor-client relationship is anchored on the premise that clients should be able to have complete trust and confidence in the counsel who represent their interests. Clients must feel free to disclose the most personal, intimate and sometimes damaging information to their counsel, secure in the understanding that the information will be treated in confidence and will be used or not used, within the boundaries of counsels' ethical constraints, in the clients' best interests. The law recognizes the uniqueness of this confidential relationship by providing special protection from compelled disclosure of information that is exchanged between clients and their counsel.

As O'Connor J.A.'s comments in McCallen make clear, a detainee seeking legal advice when under arrest must believe that they can trust that legal assistance for it to have any value. For example, it would not be unreasonable for a detainee to lack trust in the free advice offered by a lawyer who had only ever practiced admiralty law or in the free advice offered by a lawyer working in the prosecutor's office. The opportunity to control the choice of legal advisor fosters trust in the advice received by the detainee. If a detainee lacks trust in the lawyer with whom they were allowed to consult, that detainee may not trust what that lawyer tells them about their rights and obligations, the very purpose of the rights enshrined in s. 10(b) of the Charter. It is not unreasonable that some drinking and driving detainees may be suspicious of the "duty counsel" lawyer suggested by the police who then tells the detainee that they must cooperate with the police. In the context of a drinking and driving investigation, a detainee's misperception of the scope of their right against self-incrimination could lead to a criminal charge should the detainee mistakenly believe that they have a right to refuse the breath demand.

In this case, Mr. Ali clearly wanted to consult with his own lawyer prior to being compelled to participate in the investigation. For someone like Mr. Ali who has never before been under arrest, the denial of an opportunity to consult with a lawyer in whom you trust is a significant deprivation of the rights to counsel enshrined in s. 10(b)….

[56] As in Ali, the second set of Grant factors also favours exclusion in this case.

3) Societal Interest in Adjudication on the Merits

[57] At the third stage, a court is to consider factors such as the reliability of the evidence and its importance to the Crown's case. Little more need be said than the nature of the breath sample evidence in this case weighs in favour of admission and, thus, against exclusion.

4) The Final Balancing

[58] While the breath test results in this case are reliable evidence, because I have found that the s. 10(b) violation was serious and had a significant impact on Mr. Manuel's Charter rights, they must be excluded. But for the institutional practice of denying detainees access to an actual telephone and to a telephone book, the misleading impact of Cst. Liard's added questions about "having a lawyer in mind" and about calling duty counsel would have been negligible.

[59] It is also unsettling to hear that some DRPS officers have taken it upon themselves to add those supplementary questions to the standard s. 10(b) warning that originated with the Supreme Court's decision in R. v. Bartle. For the reasons set out above, when combined with the implementational problems created by an institutional denial of access to a telephone and telephone books, those supplementary elements are capable of misleading detainees into believing that their only option for exercising their s. 10(b) rights is to consult with duty counsel. As the Supreme Court has already recognized, s. 10(b) of the Charter affords detainees much more than that. Section 10(b) includes the right for detainees to choose counsel with whom to consult. The need to impose a s. 24(2) exclusionary remedy is even more compelling when it would serve to deter police practices which risk consistently undermining the scope of a Charter right. This is just such a case.

[60] The results of Mr. Manuel's breath tests must be excluded. Consequently, the Crown has failed to prove the drive "over 80" charge. That charge is dismissed.

The s. 78.1 Highway Traffic Act Charge

[61] I accept the evidence of Cst. Liard that she observed Mr. Manuel leaning on the centre console of his vehicle with his cell phone in one hand while he "swiped" with the thumb of his other hand. I do not agree with Mr. Chan's argument that it is fatal to the Crown's case on this charge that Cst. Liard failed to examine the interior of Mr. Manuel's vehicle to determine if there was a hands-free mount for the cell phone on the dashboard. Even if there was such a mount, that would only exempt Mr. Manuel from liability under s. 78.1 of the Highway Traffic Act if he was "using a device … in hands-free mode". The availability of hands-free mode alone is not enough. Given that I am satisfied beyond a reasonable doubt that Mr. Manuel was using at least one of his hands to manipulate the device as he passed by Cst. Liard, he must be found guilty of this offence.

Released: June 1, 2018

Signed: Justice Paul Burstein