WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2019-11-12

Court File No.: Guelph 998/18/Y175 & 999/18/409

Between:

Her Majesty the Queen

— AND —

C.B.M.

Before: Justice M.K. Wendl

Heard on: July 16, July 24, 2019 & October 3, 2019

Released on: November 12, 2019

Counsel

M. Dolby — Counsel for the Crown

B. Cummins — Counsel for the Defendant C.B.M.

Decision

WENDL J.:

Charges

[1] C.B.M. is charged with operating a motor vehicle while his blood alcohol level is over 80 milligrams of alcohol in 100 milliliters of blood. He is also charged with having a blood alcohol concentration above zero, as both a novice and young driver, contrary to sections 44.1(3) and 44.1(5) of the Highway Traffic Act.

Issues

[2] This court needs to determine whether C.B.M.'s right to counsel was breached. The defendant alleges he was funneled to duty counsel. Second, if there is a breach of the right to counsel the Court will need to determine whether the breath samples should be excluded from trial.

Facts

[3] Constable Ali detained C.B.M. on October 28th, 2018 for a traffic stop. Constable Ali formed grounds and made a valid ASD demand. C.B.M. failed. Upon arrest C.B.M. was read the standard caution. He was told he could speak to any lawyer he wished. He did not have a lawyer, as a result, Constable Ali suggested he speak to duty counsel. Constable Ali did not provide him, or suggest to him, any tools to find his own lawyer. C.B.M. spoke to duty counsel and when asked by the breath technician whether he spoke to a lawyer, he replied: "well the free lawyer because I don't really have a lawyer", and that he was satisfied with that conversation.

[4] Also, upon arrest C.B.M. was asked if he wanted to call a parent. C.B.M. did want to call a parent and was told he could do so at the station. A parent was not called until after he spoke to duty counsel and provided his breath samples.

Funneling to Duty Counsel and Section 146 of the YCJA

[5] The applicant is a youth. Counsel spent extensive time arguing section 146 of the Youth Criminal Justice Act. Section 146 of the YCJA essentially requires the police to comply with certain requirements before a statement can be admitted into evidence. The Crown conceded that section 146 of the YCJA was not complied with, they are not relying on any statements provided by the accused.

[6] It is unclear to me, given the concession by the Crown, what impact a breach of section 146 of the YCJA has in this context. A breath sample is not a statement pursuant to section 146 of the YCJA (nor was that argued in front of me).[1] Nor is compliance with section 146 a requirement for the purposes of section 10(b) of the Charter.[2] Furthermore, I note that the YCJA has a specific section that deals with the right to counsel for youths, section 25.

[7] To assert that C.B.M. was not adequately informed of his right to counsel a lack of compliance with section 146 of the YCJA will not suffice. The accused must point to circumstances or a positive indication at the time he was informed of the right to counsel that he did not understand it.[3] The statement by the accused in the breath room that he did not "really have a lawyer" does not support the proposition that he did not understand his right to counsel. It supports the fact he understood his right to call a lawyer but that he did not know a lawyer.[4]

[8] C.B.M. was provided with the standard right to counsel from the standard card issued to police for that purpose. He was advised that he could speak to "any lawyer" he wished. The arresting officer testified that he felt C.B.M. understood what was going on and, in my view, was not seriously challenged on this point. The standard caution satisfies the informational component of the right to counsel.[5]

[9] The arresting officer did not note down the specific answers of C.B.M. to the right to counsel,[6] and while I believe this is not an acceptable practice, I can infer that he offered C.B.M. duty counsel after C.B.M. indicated that he did not have a lawyer. I make this finding based on C.B.M.'s response in the breath room to being asked if spoke to a lawyer, he stated: "Well, the free lawyer because I don't really have a lawyer".

[10] When an accused indicates that they do not have a lawyer upon receiving their right to counsel, it is permissible for the police to suggest duty counsel. As the summary conviction appeal court in Ruscica stated:

However, where a detainee simply tells the police that he has no specific lawyer that he wants to contact and further responds affirmatively when asked if he wants to call duty counsel, there is no basis to interfere with a trial judge's conclusion that the requirements of s. 10(b) of the Charter have been met.[7]

[11] Furthermore, in those circumstances, the police are under no obligation to provide resources to identify a possible lawyer.[8]

[12] Finally, counsel argues that had C.B.M.'s mother been contacted she would have attended the station to assist with a search for counsel of choice. Accepting that as true, C.B.M. did not state that he wished to contact his mother to help him search for counsel of choice. As such, I am bound by the summary conviction appeal ruling in Mumtaz.[9] Again, this argument appears to conflate section 146 of the YCJA, a section that deals with the admissibility of statements made by youths, with a constitutional imperative under section 10(b). While it is an advisable practice to call parents when a youth is being arrested, and not calling a parent and allowing them to consult with their child will likely render statements against interest inadmissible, it is not a constitutional requirement.

[13] In addition to that, section 25 of the YCJA, which supplements the understanding of the right to counsel for youths, does not make it a statutory requirement to consult with a parent to assist with the exercise of finding counsel.

Conclusion

[14] I find no breach of section 10(b) of the Charter. C.B.M. is convicted on all three counts. I stay the charge under section 44.1(5) of the Highway Traffic Act pursuant to the principle in Kienapple.

Released: November 12th, 2019

Signed: Justice M.K. Wendl

Footnotes

[1] R. v. D.J.L., [1995] S.J. 679 at 27; R. v. B.V.R., [2007] O.J. No. 2992 (ONSC) at 25

[2] R. v. Bartle, [1994] 3 S.C.R. 173 at 17

[3] R. v. Evans, [1991] 1 SCR 869 at 45

[4] Although the Crown conceded that section 146 of the YCJA was not complied with and that the Crown cannot rely on the statements at trial, defense counsel relies on some of the accused's statements for the purposes of the voir dire. Defense counsel did not argue that non-compliance with section 146 of the YCJA renders the statements inadmissible for the purposes of the voir dire. Without ruling on the issue since it was not argued, I find support for the proposition that the statements are admissible for the voir dire in R. v. P.D., [2009] O.J. No. 1594, R. v. B.V.R., supra at 33, R. v. J. (J.), 2010 ONSC 735, and R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202. In addition to that, I note that the purpose of section 146 of the YCJA, as outlined in R. v. N.B., 2018 ONCA 556, is to prevent false confessions. Allowing the statements in for the purpose of a voir dire on section 10(b) does not infringe on that purpose.

[5] R. v. Mumtaz, 2019 ONSC 468 at 45; R. v. Raaneyi, 2018 ONCJ 154

[6] This is the second case in front of me in recent months where a police officer chose not to note down the accused's response to the caution for counsel of choice. See my comments in R. v. Dickson, 2019 ONCJ 522 at 31-32.

[7] R. v. Ruscica, [2019] O.J. No. 2021 at 38 (ONSC)

[8] Ibid at 47

[9] Mumtaz, supra at 38