Court File and Parties

Ontario Court of Justice

Date: 2019-12-04

Court File No.: Guelph #18/2267

Between:

Her Majesty the Queen

— and —

Daryn Blacklock

Before: Justice M.K. Wendl

Heard on: October 17 and December 4, 2019

Reasons for Judgment released on: December 4, 2019

Counsel

T. Meehan — counsel for the Crown

D. Doney — counsel for the defendant Daryn Blacklock

Judgment

WENDL J.:

Facts

[1] Daryn Blacklock is charged with operating a motor vehicle while his blood alcohol level was over 80 mg of alcohol in 100 ml of blood (over 80). The facts are straightforward: a traffic stop, the smell of alcohol, an Approved Screening Device (ASD) demand, an ASD fail, a breath demand and a breath sample of over 80 mg of alcohol in 100 ml of blood. None of this is in contention.

[2] The issue in this matter is compliance with section 10(b) of the Charter, the right to counsel.

[3] Upon arrest, Mr. Blacklock was given his right to counsel, in response he stated he did not have a lawyer, when advised he could speak to duty counsel he stated, "I guess so". The arresting officer took "I guess so" to be an equivocal statement and asked Mr. Blacklock if he wanted to speak to counsel, again, at the station. Mr. Blacklock then responded, "Never been through this before, not sure what to do." The arresting officer told him it was his choice and that duty counsel was free. The arresting officer felt that Mr. Blacklock understood. Mr. Blacklock then declined to speak to counsel.

[4] Based on the above facts the applicant argues that his right to counsel was breached. The applicant argues that the waiver was equivocal, and the police should have taken further steps to explain the right to counsel to him.

[5] The presumption of accuracy, identity and the admissibility of the breath certificate, subject to the Charter challenge, are not an issue in this trial.

Waiver of Right to Counsel

[6] The Crown bears the onus of proving the unequivocal and fully informed waiver of the right to counsel.[1] The standard for a waiver of a Charter right is high and is premised on a true appreciation of the consequences of giving up that right.[2] However, before the burden shifts to the Crown to prove that the waiver was unequivocal, the accused must demonstrate the assertion of their right to counsel.[3]

[7] It is trite law to state that the Applicant bears the burden to prove a breach of the Charter on the balance of probabilities. In this instance, the onus on the applicant to prove the assertion of the right to counsel must also be on the balance of probabilities. Given the nature of this application to suggest a higher burden would ultimately lead to a higher burden on the Charter Application as a whole.

[8] I find that "I guess so" is a positive assertion of the right to counsel by the applicant, on the balance of probabilities. Therefore, the onus is on the Crown to show that the waiver of the right to counsel was informed and unequivocal.

[9] First, this is not a case where the Prosper warning applies. A Prosper warning applies when there has been an assertion of the right to counsel, diligence in attempting to contact counsel and then a waiver. There was no diligence by Mr. Blacklock in attempting to contact counsel.

[10] In [Prosper][4], the accused was arrested for impaired operation of a motor vehicle and driving over the legal limit. A section 10(b) Charter caution was read to him from a card, advising of the right to apply for free Legal Aid. The appellant indicated that he wanted to speak with a lawyer. The police provided him with a list of Legal Aid lawyers and, when this search proved unsuccessful, gave him a telephone book to continue his search. Mr. Prosper made 15 calls in total. He did not reach a lawyer.

[11] The police did not at first realize that all but one of the lawyers on the list were currently unavailable outside regular office hours, but they informed the appellant of this fact upon learning of this situation. The appellant declined to call lawyers in private practice because he could not afford their services. He then agreed to take the breathalyzer.

[12] Lamer C.J. found that under these circumstances, where the accused was diligent in attempting to contact counsel, he did not have a reasonable opportunity to contact counsel. Therefore, the Prosper warning was necessary.

[13] In the case at bar, Mr. Blacklock made no attempt to contact counsel. He was asked a second time, at the station, if he wanted to contact counsel and he declined. He was advised by the arresting officer of the availability of free duty counsel and his right to counsel immediately prior to declining his right.

[14] That being said, even though the Prosper warning is not necessary in this case, there was still an assertion of the right to counsel prior to a waiver. The onus is on the Crown. Therefore, the question becomes what facts must the Crown demonstrate or point to in a situation short of a Prosper warning to assert that the waiver by the accused was fully informed and unequivocal?

[15] The case of [Smith][5] is illustrative. In Smith the accused was arrested for murder. Upon arrest he was given his right to counsel and invoked it, however, almost immediately afterward he changed his mind. On appeal, the applicant argued that the trial judge erred in not finding a breach of 10(b) because no Prosper warning was read.

[16] The Court of Appeal found that it was not necessary to read a Prosper warning in the context of that case, and they did not accede to that ground of appeal. Rosenberg J.A. found that the Prosper warning should be understood in the context of that case. In Prosper, the accused had attempted and had been unsuccessful in his attempts to exercise his right to counsel. A substantial period had elapsed between being informed of his rights and the waiver, while in Smith Rosenberg J.A. noted:

The facts of this case are different. The appellant had not attempted to reach counsel and been unsuccessful. Only a very short period, perhaps seconds, intervened between the time the appellant was fully informed of his right to counsel and when he changed his mind. The information about the right to counsel included the information that he had the right to telephone any lawyer he wished or obtain free advice from a legal aid lawyer "right now". The appellant was also repeatedly informed of the obligation on the police to cease the interview if he wanted to speak to a lawyer.[6]

[17] Rosenberg J.A. found, in Smith, that the police had adequately complied with their informational obligation since the informational component of the right to counsel was provided immediately prior to Smith giving up his right to counsel. This ensured that Smith knew what he was giving up. The court went on to comment that the interpretation of 10(b) rights need not be wholly mechanistic and artificial.[7]

[18] In relation to the case at bar, the accused argues that the waiver was equivocal because he stated, "I'm not sure what to do" and that he testified that he was scared and flustered. The answer "I'm not sure what to do" was in relation to the second time the arresting officer asked him if he wanted to speak to counsel. Clearly, in the context of that exchange it meant that he was not sure if he should talk to counsel or not. The arresting officer responded appropriately. He told the accused that speaking to a lawyer was his choice and that there was an option for duty counsel which he did not have to pay for and, most importantly, he re-iterated his right to speak to counsel.

[19] Also, while he may have been scared and flustered at the time he was given his right to counsel, I do not find that this undermined his ability to understand it or made his answer equivocal. His responses throughout the interaction with the arresting officer were appropriate within their context. When first advised of his right to counsel he said he understood it. He also advised that he did not have a lawyer. When told about duty counsel he said, "I guess so". When asked at the station if he wanted a lawyer, he was not sure what to do and said so. There is nothing in these exchanges that lead me to believe that Mr. Blacklock did not understand his options or that being scared and flustered made his responses equivocal.

[20] Therefore, I find that Mr. Blacklock was adequately informed of his right to counsel prior to waiving it and that the waiver was unequivocal. Again, he had been informed of his right to contact counsel for a second time immediately prior to declining his right. Additionally, he was informed of the availability of duty counsel and the fact that it was free, again, prior to declining his right. Finally, the waiver was in clear terms.

[21] In the context of this case the Crown has satisfied the high burden of a fully informed and unequivocal waiver.

Conclusion

[22] Since I find no breach and the certificate is otherwise admissible, I find the accused guilty of driving while his blood alcohol level was over 80 mg of alcohol in 100 ml of blood.

Released: December 4, 2019

Signed: Justice M.K. Wendl

Footnotes

[1] R. v. Prosper, [1994] 3 SCR 236

[2] R. v. L.T.H., 2008 SCC 49, [2008] 2 SCR 739 at paras. 41-43

[3] R. v. Owens, 2015 ONCA 652 at para. 24

[4] Supra note 1

[5] R. v. Smith, [1999] O.J. 969

[6] Ibid at para. 25

[7] Ibid at para. 26