Court File and Parties
Ontario Court of Justice
Date: February 13, 2020
Court File No.: Simcoe 190682
Between:
Her Majesty the Queen
— and —
James Lizmore
Before: Justice A.D. Hilliard
Heard on: February 6 and 13, 2020
Reasons for Judgment released on: February 13, 2020
Counsel:
- S. Hickenbottom, counsel for the Crown
- J. Marchand, counsel for the applicant James Lizmore
Judgment
Hilliard J.:
Overview
[1] This is an application brought by the defendant in these proceedings, James Lizmore, seeking a finding that his Charter rights under s. 10(b) were violated and seeking a remedy of exclusion of evidence pursuant to s. 24(2).
[2] Mr. Lizmore is charged that he did, within two hours after ceasing to operate a conveyance, have a blood alcohol concentration that was equal to or exceeded 80 mg of alcohol in 100 ml of blood, contrary to section 320.14(1)(b) of the Criminal Code.
[3] The trial proceeded before me by way of a blended voir dire wherein three witnesses gave evidence: PC Rooney, PC Faria, and Mr. Lizmore.
[4] For the reasons that follow, I find that there was no breach of Mr. Lizmore's rights under section 10(b) of the Charter.
Facts
[5] On Saturday, July 13, 2019, Provincial Constables (PC) Rooney and Faria were conducting marine patrols on Lake Erie near Pottahawk in Norfolk County.
[6] At approximately 9:00 p.m. the officers observed a small inflatable boat on the water nearby. The marine vessel being operated by PC Faria was navigated towards the small inflatable boat to allow PC Rooney to conduct a safety inspection.
[7] During the safety inspection, PC Rooney detected an odour of alcohol coming from the occupants on the vessel and made a demand of the operator that he provide a sample of his breath into an approved screening device.
[8] Mr. Lizmore was removed from his vessel and boarded the police vessel in order to comply with the approved screening device demand. Mr. Lizmore's breath sample resulted in a "Fail" reading on the approved screening device which provided PC Rooney reasonable grounds to arrest Mr. Lizmore.
[9] PC Rooney testified that he read his standard police issue right to counsel card to Mr. Lizmore and asked Mr. Lizmore if he understood. Mr. Lizmore told PC Rooney that he did not understand. PC Rooney then re-read the standard right to counsel and again asked Mr. Lizmore if he understood. Mr. Lizmore responded, "yeah" but then indicated that he did not have his cell phone with him. PC Rooney stated that a phone would be available to Mr. Lizmore once they arrived at the mobile command post in Port Rowan.
[10] Once at the command post, PC Rooney asked Mr. Lizmore if he wished to speak with a lawyer. Mr. Lizmore responded by asking PC Rooney a series of questions about whether he was going to be released that night and what penalties he may be facing. PC Rooney answered Mr. Lizmore's questions based upon the information available to him at that time.
[11] After having his questions answered Mr. Lizmore advised the officer that he did not wish to speak with a lawyer.
[12] PC Rooney's evidence was that he specifically advised Mr. Lizmore that if he changed his mind and wanted to call a lawyer to simply let him or PC Faria know and his request would be accommodated.
[13] At no time did Mr. Lizmore request to speak with a lawyer, nor did he ask about the availability of a telephone to make a call.
[14] Mr. Lizmore was handed over to PC Faria for the purpose of taking samples of his breath after indicating to PC Rooney that he did not wish to speak with a lawyer.
[15] PC Faria explained the process of how to provide a breath sample into the machine and two suitable samples of breath were ultimately obtained from Mr. Lizmore.
Analysis
[16] Counsel for Mr. Lizmore initially argued that PC Rooney failed to provide Mr. Lizmore with sufficient information to satisfy the informational component of s. 10(b). Specifically it was submitted that the failure of PC Rooney to specifically tell Mr. Lizmore of the availability of a phone when back at the command post and/or failure to provide Mr. Lizmore with a mobile phone with which he could have contacted a lawyer amounted to a breach of the right to counsel.
[17] It was further argued that PC Rooney ought to have realized that the questions being asked by Mr. Lizmore about the jeopardy he was facing were legal questions best answered by a lawyer. PC Rooney, it is argued, should have stopped Mr. Lizmore when he was asking his questions and told him that he needs to speak with a lawyer.
[18] On the second day of submissions, counsel for Mr. Lizmore clarified that the issue to be determined by the court is whether, given Mr. Lizmore's evidence on the voir dire that he did not understand the standard right to counsel read by PC Rooney, the information provided by the officer was insufficient to allow Mr. Lizmore to understand his right to counsel. It was argued that the court should find that the right to counsel provided in the standard police issued form is insufficient, and without further explanation or expansion, resulted in a tacit steering away from counsel by police due to a lack of information.
[19] The Supreme Court of Canada set out the requirements that must be met in order for a trial court to find that the police have met their obligations pursuant to s. 10(b) of the Charter:
(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; [the informational component]
(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); [the implementational component] 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).[1]
[20] Justice McKelvey, sitting as a summary conviction appeal court, in discussing the rights of an accused under s. 10(b) explained:
it is also significant to note that the right to counsel under s. 10(b) is not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it, the duty on the police to provide a reasonable opportunity to obtain legal advice will either not arise in the first place or will be suspended.[2] (emphasis added)
[21] Justice Gordon, also sitting as a summary conviction appeal court, confirmed that the choice to consult counsel or duty counsel, or to waive the right to counsel must be an informed one. He went on to find that, "police officers may have additional duties at the informational and implementational stage. But such only arise if the facts of the case so warrant."[3] (emphasis added)
[22] Justice Wendl in R. v. Blacklock correctly stated the test to be applied by the court in cases of a waiver of counsel:
The Crown bears the onus of proving the unequivocal and fully informed waiver of the right to counsel. 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. 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.[4]
[23] PC Rooney twice read the standard right to counsel police issued card to Mr. Lizmore. When PC Rooney first recited the rights to counsel, Mr. Lizmore was not too afraid to indicate that he did not understand. After the second recitation, Mr. Lizmore's indication that he did not have his cell phone is indicative of understanding, particularly when considered in light of the affirmative indication that he understood which preceded that comment.
[24] PC Rooney testified that he asked Mr. Lizmore again upon reaching the command post whether he wished to speak with a lawyer. He has a note in his police issued notebook about the time of this question. Mr. Lizmore, in his evidence, did not recall that the question as to whether he wished to speak with a lawyer was ever put to him at the command post. I accept PC Rooney's testimony on this point. PC Rooney had a clear recollection of asking Mr. Lizmore whether he wished to call a lawyer and made a note that he had asked that question in his notebook, including the time the question was asked.
[25] At no time in his evidence on the voir dire did Mr. Lizmore indicate that he had wanted to contact counsel but was prevented from doing so by a lack of understanding of his rights. His evidence was that he was confused about whether he was able to call a lawyer because he was not offered or provided with a phone at the command post.
[26] Mr. Lizmore provided no evidence that he suffers from any intellectual deficits or that he is incapable of understanding the words spoken by PC Rooney when the right to counsel caution card was read.
[27] There is no evidence before me that at any point Mr. Lizmore told either PC Rooney or PC Faria that he wished to call a lawyer or speak with duty counsel. Mr. Lizmore has therefore not demonstrated on the evidence before me that he asserted his right to counsel at any time.
[28] Being flustered and scared at the time that the right to counsel was provided by the police does not equate with an inability to understand.
[29] There was no point at which Mr. Lizmore was even equivocal about whether he wanted to speak with a lawyer. At no point did he make any statements such as, "I guess so" or "I don't know." None of the questions asked by Mr. Lizmore of PC Rooney were about whether or not he should speak with a lawyer, such as "do you think I should call a lawyer?" or "do I need to call a lawyer?" Had any such statements been made or questions asked, it may have been that more information needed to be provided by PC Rooney to Mr. Lizmore.
[30] I find that Mr. Lizmore's evidence on the voir dire as to his lack of understanding of his right to counsel is not credible in light of all of the other evidence of the events of the night of July 13, 2019. I do not accept Mr. Lizmore's evidence on the voir dire that he did not understand his rights. I also do not accept Mr. Lizmore's evidence that he was too afraid to ask the officer for a telephone or further clarification about his rights to consult with a lawyer.
[31] I reject the argument made by counsel for Mr. Lizmore that the questions asked by Mr. Lizmore should have signalled to PC Rooney that a call to a lawyer or duty counsel was required or that Mr. Lizmore's questions should have indicated to the officer a lack of understanding of his rights.
[32] Mr. Lizmore's evidence on the voir dire was that he was mostly concerned about whether he would be held in police custody or able to return to his boat that night. His testimony accords with the officer's in that regard. I do not find that the questions Mr. Lizmore asked ought to have alerted PC Rooney that Mr. Lizmore should be put in touch with counsel or duty counsel.
[33] I do not find that on these facts PC Rooney's words and actions implicitly funnelled Mr. Lizmore away from speaking with a lawyer. There is nothing on the facts that I accept that required any further information to be provided by PC Rooney to Mr. Lizmore about his right to counsel.
[34] I find that this is not one of the cases referred to by Justice Gordon in Fisk where the facts give rise to a requirement for PC Rooney to have provided Mr. Lizmore with additional information to satisfy the informational component of 10(b).
[35] It is not a requirement of s. 10(b) that police insist that a detainee speak with counsel to ensure that they are in compliance with the Charter. Reading into the informational component a requirement that police must provide more information to a detainee than is currently incorporated in the standard issue police right to counsel card in circumstances where a detainee has not asked to speak with a lawyer would amount to a significant expansion of the current requirements that is not supported by the jurisprudence.
[36] I find that Mr. Lizmore was provided sufficient and adequate information about his right to contact a lawyer. Mr. Lizmore, having had his questions answered about whether he would be released or held in custody the night of the arrest, and his questions about the types of penalties he was facing, clearly and unequivocally waived his right to counsel, and I find that his waiver was an informed one.
Conclusion
[37] There was no breach of Mr. Lizmore's rights under s. 10(b) of the Charter and the application shall therefore be dismissed.
Released: February 13, 2020
Signed: Justice A.D. Hilliard
Footnotes
[1] R. v. Bartle, [1994] S.C.J. No. 74
[2] R. v. Ruscica, [2019] O.J. No. 2021 (SCJ), para. 33