Court Information

Ontario Court of Justice

Date: June 13, 2019

Court File No.: Niagara Region 998 F1037

Parties

Between:

Her Majesty the Queen

— And —

Melissa Does

Judicial Officer and Counsel

Before: Justice J. De Filippis

Heard on: April 9, 15 & May 3, 2019

Reasons for Judgment released on: June 13, 2019

Counsel:

• Mr. H. Limheng — counsel for the Crown
• Mr. B. Starkman — for the defendant

Introduction

[1] The defendant was charged with operating a motor vehicle with a blood alcohol level that exceeded the legal limit ("over 80"). At the conclusion of the Crown's case, the defendant raised an issue with respect to recent amendments to the relevant Criminal Code provisions. Since the success of this argument would be fatal to the Crown's case, it was agreed that I would rule on that issue first. I dismissed the Defence argument; see R. v. Does, [2019] O.J. No. 1924.

[2] This decision concerns the remaining issue: A Defence challenge to the admissibility of evidence because of alleged violations of her right to counsel, as guaranteed by section 10(b) of the Charter of Rights and Freedoms. The section provides that "Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right". I have concluded that this argument should also be dismissed. These are my reasons.

Facts

[3] As noted in my previous ruling, the following facts are not in dispute: On March 17, 2018 at 8:50 pm the defendant arrived at the primary inspection booth at the Peace Bridge in Fort Erie, Ontario. She was the driver of a motor vehicle, with New York plates, that contained several passengers. Her attire might be seen as representing St. Patrick's Day festivities. The defendant told Border Security Officer McNulty that she had made a wrong turn and did not intend to cross into Canada. The officer saw an open beer can in the back seat and noted that the passengers were belligerent and appeared to be intoxicated. He detected the strong odour of alcohol emanating from the defendant's breath. BSO McNulty is also designated as a peace officer. He subjected the defendant to an approved screening device demand. She failed the test and was arrested for the present offence. She was taken to a nearby police station to comply with a breath demand. PC Choy is the officer who obtained the defendant's breath samples. He is qualified to do so and used an approved instrument to obtain two suitable samples of the defendant's breath. The test results show that the defendant's blood alcohol was 193 and 187 – well over the legal limit.

Evidence Relevant to the Charter Motion

[4] BSO McNulty testified that he arrested the defendant after she failed the roadside test and immediately advised her that she had the right to speak to a lawyer of her choosing or duty counsel. With respect to the latter, the officer explained there was no cost for the advice received from duty counsel as it was paid for by the Ontario Legal Aid program. He also informed her of the telephone number for this program. When asked if she understood, the defendant answered, "yes". After the defendant was taken to the police station, she was placed in a cell to await the breath tests. At this time, BSO McNulty contacted duty counsel and left a message that the defendant wished to obtain legal advice. When duty counsel returned that call, the defendant had a private conversation with this lawyer.

[5] It was suggested that the BSO McNulty inappropriately "steered" the defendant to duty counsel, rather than allowing her to speak to a private lawyer of her choice. The officer testified that he always encourages detainees to speak to their own lawyer. However, in this case, he interpreted the defendant's answer – "yes", without mentioning the name of a lawyer, or the desire to speak to a private one – as a request to speak to duty counsel. He acted upon that understanding and put her in contact with that lawyer.

[6] After the defendant obtained legal advice, she was escorted to an office occupied by PC Choy for the purpose of complying with the breath demand. Before PC Choy conducted the breath tests, he told the defendant that he understood she had spoken to duty counsel. The defendant confirmed this fact. Defence counsel asked the officer if he had also confirmed that the defendant was "satisfied" with the advice given by duty counsel. He replied that he did not do so.

[7] Ms. Does testified that she is a resident of New York State and employed as a nurse. She agreed that she was properly advised of the right to counsel and had answered "yes" when asked if she understood. She testified that she never asked to speak to duty counsel and did so because that is who the officer put her in contact with. The defendant said she would have preferred to speak to "a private lawyer who specializes in this area [of law]". She added that if the police had asked if she was satisfied with duty counsel, she would have asked for another lawyer. When asked if she was satisfied with her conversation with duty counsel, the defendant replied, "I'm not a lawyer and can't really say, I would have preferred a private lawyer". When pressed on this matter by Crown counsel, she conceded that when told she had the right to speak to a private lawyer or duty counsel, she understood these were her options. She also admitted that she did not know the name of a private lawyer and did not mention a name or ask the police to search for one.

Analysis

[8] The Supreme Court of Canada has described the purpose of s. 10(b) as ensuring "that a suspect is able to make a choice to speak to the police investigators that is both free and informed." (R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310). This purpose is accomplished "by ensuring that detainees have an opportunity to be informed of their rights and obligations under the law and to obtain advice on how to exercise those rights and perform those obligations." (R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429). In general, this means that s. 10(b) imposes certain duties on the police:

1. To inform the detainee of his/her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel;

2. If the detainee has expressed a desire to exercise this right, to provide the person with a reasonable opportunity to exercise the right;

3. To refrain from eliciting evidence from the detainee until the person has had that opportunity.

[9] The aforementioned principles are established ones. They were reflected in a prior decision by the Court of Appeal for Ontario in R. v. Richfield, [2003] O.J. No. 3230. In that case, it was also clarified that a detainee must be reasonably diligent in exercising his/her right to counsel.

[10] Defence counsel urges me to be wary of the testimony of BSO McNulty because his notes do not record that the defendant asked to speak to duty counsel. Counsel points out that although the defendant testified she understood her options with respect to the right to counsel, she added that these options were not discussed with her by the officer. It is the position of the Defence that I must conclude that the defendant was steered to duty counsel without the opportunity to consult with counsel of her choice. This, it is said, is made manifest by the failure of the authorities to ask the defendant if she was satisfied with the advice given to her by duty counsel.

[11] The Crown suggests that the defendant's evidence is an after the fact fabrication designed to advance a Charter claim. I would not go so far. It may be that after the fact the defendant came to believe it would have been preferable to speak to a private lawyer. If so, this does not create a Charter breach where none existed before.

[12] This much is clear: The defendant did not know a private lawyer. She did not say she wanted to speak with one. She did not ask for assistance in finding one. This silence is significant because there is no reason to doubt the sincerity of BSO McNulty's testimony that he understood that the defendant wished to speak to duty counsel. In this regard, I note that before providing breath samples, she confirmed for PC Choy that she had spoken to duty counsel and made no further comment. Moreover, at no time did she express concern about her conversation with duty counsel. The Defence argues that, in any event, the Charter claim succeeds because the police had a duty to do more in presenting the options to the defendant.

[13] Defence counsel places considerable emphasis on R. v. Manuel, 2018 ONCJ 381, in which one of my colleagues sets out the obligations upon police with respect to section 10(b). The court held that this includes the duty to go beyond a positive answer by a detainee that she understands her rights; the police must ask supplementary questions to determine how she wishes to exercise her options:

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.

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, [1989] 1 S.C.R. 3 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...

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.

[14] There is no question that the police must do more than simply recite the right to counsel. It is incumbent upon them to ensure a detainee understands that right. If it appears the person does not comprehend, the police must take reasonable steps to provide additional information so that it is explained. In this regard, the police must appreciate that counsel of choice is a fundamental right and that they have no business interfering in a decision by a person about that choice. Manuel recognizes these important principles. However, I cannot follow the decision to the extent that it imposes additional obligations on the police where, as in the case before me, the defendant appears to have understood her rights and remains silent. This ignores the responsibility on the defendant to be diligent in exercising the right to counsel. It can also cause mischief by inviting the police to speculate about the defendant's intentions.

[15] Quite apart from my reservations about Manuel, it has arguably been overruled. In R. v. Ruscica, 2019 ONSC 2442, the appellant relied on Manuel in asserting that the trial judge erred in not finding a breach of the right to counsel. The summary conviction appeal court concluded as follows:

In my view, what is being proposed by the appellant represents a significant expansion of the Charter rights under s. 10(b). The proposed expansion is inconsistent with binding appellate authority. It also raises real practical questions as to what information needs to be given to a detainee. If the information is required by a response received to the s. 10(b) advice from a detainee, the circumstances will dictate what information needs to be provided. This is consistent with established case law and courts are able to assess the adequacy of the police response. However, in a vacuum, where there is no issue raised by a detainee, there would appear to be practical difficulties in determining what information will be required.

[16] It is clear that Ms. Does understood her right to counsel, including the options available to her in exercising this right. This is her testimony before me. As such, she had a responsibility to say something to the police. Had she done so, in a manner consistent with her additional trial testimony that she preferred a private lawyer, it would have corrected the belief by BSO McNulty that she was content with duty counsel.

[17] Defence counsel asserts that the police should have asked the defendant if she was satisfied with duty counsel. This, it is said, would have alerted them to her desire to speak to a private lawyer or, at least, encourage her to think about that option in the event that she was not satisfied. I reject this submission: First, it puts the cart before the horse; to repeat, if it is clear a detainee understands the right to counsel, the person bears some responsibility in exercising that right. Second, the police have no business inquiring into the sufficiency of advice given by a lawyer and are in no position to evaluate it. Third, as already stated, where it appears a detainee understands the right to counsel, the police have no role in a decision about what option the person should choose.

[18] In coming to my conclusion, I take comfort in the comments made by the Court of Appeal for Ontario in R. v. Clarke, [2005] O.J. No. 1825. The facts in this case are similar to the present one:

Officer Boyd advised the respondent of his right to counsel using the standard formula that included an explicit statement that the respondent had the right to call any lawyer he wished. The respondent gave no indication that he did not understand his right and made no complaint when invited to speak to duty counsel. For evidence of his desire to speak to a particular lawyer, he could rely only on his statement to P.C. Tallon: "I am not telling you anything until I speak to my lawyer" and his assertion on the voir dire in response to a question from own counsel that had he understood that he could speak to any lawyer, he would have called him. It was plainly open, on this evidence, for the trial judge to find that the respondent understood his right to counsel and that he failed to assert his wish to speak to a specific lawyer with reasonable diligence….

Conclusion

[19] The defendant has not discharged the burden upon her of showing that it is more likely than not that the police violated her right to counsel. The application to exclude is dismissed. The defendant is found guilty.

Released: June 13, 2019

Signed: Justice J. De Filippis