Ontario Court of Justice

Date: 2022-04-04 Court File No.: Hamilton #20-8930

Parties

Between: Her Majesty the Queen And: Jason Kovacevic

Before: Justice M.K. Wendl

Heard: March 25, 2022

Counsel: J. McKenzie, for the Provincial Crown J. Kovacevic, Self-Represented

Endorsement

[1] Jason Kovacevic is charged with operating a conveyance while impaired by a drug. He is self-represented. During the testimony of Mackenzie Fraser, the arresting officer, the Court felt an obvious and clear 10(b) issue arose. As a result, the Court notified the parties and embarked on a voir dire relating to a breach of Mr. Kovacevic’s right to counsel.

Overview

[2] After being notified of a possible impaired driver at Rymal Road and Sulmona Road in Hamilton, Officer Fraser attended the scene. He found Mr. Kovacevic unconscious in his motor vehicle with sufficient indicia of impairment to place him under arrest. During his testimony in chief, Officer Fraser advised that he read Mr. Kovacevic the right to counsel from his police issued notebook but did not specifically relay the words he used at the time. In response to the Crown’s question as to whether the accused wished to speak to a specific lawyer, Officer Fraser indicated he had no recollection. At the station Mr. Kovacevic spoke with duty counsel. In the breath room, at the beginning of the Drug Recognition Expert (DRE) exam, the DRE officer asked him if he wished to speak to a lawyer, Mr. Kovacevic indicated that he had already spoken to duty counsel. Mr. Kovacevic, again, unrepresented, did not cross-examine on this issue.

[3] Since there was no evidence that Officer Fraser asked the accused if there was a lawyer he wanted speak to, no evidence that Mr. Kovacevic did or did not request a lawyer, and the specific wording of the right to counsel was not related to the Court, the Court asked a few clarifying questions on this issue. For the sake of accuracy, I will cite the entire exchange:

THE COURT: Okay. You gave him his right to counsel? A. Yes. THE COURT: You didn’t think it was important to write down his answer? A. I did in my notebook, sir – or Your Honour. THE COURT: You indicated… A. I wrote, “Yes.” THE COURT: …that you didn’t write – sorry? A. I wrote, “Yes.” THE COURT: Okay, and when you – did you offer him a right to counsel of choice? A. I believe so. I don’t recall. THE COURT: You don’t recall if you offered him a right to counsel of choice? A. I – no, I don’t recall exactly what I said to him. THE COURT: Alright. A. I read him – I read him the demand – or the rights to counsel from my notebook. THE COURT: That’s fine. You don’t know if you gave him right to counsel of choice. And when he wanted to speak to someone, you didn’t note down who he wanted to speak to? A. I do not recall that. THE COURT: So, you don’t know if he asked to speak to Michael Smith? A. I don’t recall.

[4] After this interaction, the Crown re-examined Officer Fraser and asked him to read into the record the contents of the police right to counsel card in his notebook.

Judicial Obligation to Assist Self-Represented Accused

[5] On account of Officer Fraser’s evidence, specifically that he could not recall whether a name of counsel of choice was given to him, coupled with the apparent lack of understanding of what he was reading to the accused from the card, i.e. the right to counsel of choice, the Court chose to embark on a voir dire in relation to a possible s. 10(b) Charter breach.

[6] It is difficult for the Court to determine if it should raise a Charter issue on its own motion. Moreover, when to raise the issue is also difficult. Should it be raised during the evidence when the issue arises to give the Crown sufficient notice and call further evidence, or should the Court wait until the end of evidence because further evidence could address the concern of the Court? Complicating the issue is that the self-represented person will need to be educated on their right to testify on the voir dire but not on the trial proper or vice versa. Ultimately, if the issue is raised after trial, the Court may not have heard vital evidence as it relates to a potential breach if the accused was not given the opportunity to testify solely during the voir dire. What does seem clear is that once the issue is raised, the Court has an obligation to enter into an inquiry:

The onus extends, at least can extend, to an obligation on the trial judge to raise Charter issues on the judge’s own motion where the accused is self-represented: R. v. Travers, 2001 NSCA 71, 154 C.C.C. (3d) 426, at para. 36. This is not to say, however, that this specific obligation becomes engaged on the mere scent or intimation of a possible Charter infringement: Travers, at para. 40. But where there is admissible uncontradicted evidence of a relevant Charter breach, the trial judge has an obligation to raise the issue, invite submissions and enter upon an inquiry into the infringement and its consequences: Travers, at paras. 36, 40; R. v. Arbour (1990), 4 C.R.R. (2d) 369 (Ont. C.A.), at p. 372.

[7] On the facts of this case, after hearing the evidence of Officer Fraser, the Court felt that it was important to raise the issue quickly. First, it put the Crown on notice; second, relevant evidence had yet to be called; third, it allowed the Court to change the first day of trial into a voir dire on the issue; and, finally, it also put Mr. Kovacevic on notice and allowed the Court to explain to him his option to testify solely on the voir dire, although, in this case, Mr. Kovacevic chose not to testify. In the end, I found that there was an objective basis to trigger the inquiry and the timing made sense in the context of where we were in the trial. As the Ontario Court of Appeal stated in Sabir:

On this record, there was an objective basis upon which to trigger the trial judge's obligation to conduct an inquiry into voluntariness and Charter issues. The trial judge erred in failing to do so.

10(b) Rights to Counsel

[8] It is useful to begin this analysis with a reminder of the purpose section 10(b) of the Charter:

The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfil those obligations: R. v. Manninen, 1987 SCC 67, [1987] 1 S.C.R. 1233, at pp. 1242-43. This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself. Accordingly, a person who is "detained" within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty: Brydges, at p. 206; R. v. Hebert, 1990 SCC 118, [1990] 2 S.C.R. 151, at pp. 176-77; and Prosper. Under s. 10(b), a detainee is entitled as of right to seek such legal advice "without delay" and upon request. As this Court suggested in Clarkson v. The Queen, 1986 SCC 61, [1986] 1 S.C.R. 383, at p. 394, the right to counsel protected by s. 10(b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process.

[9] The police have both an informational and implementational duty once 10(b) is engaged:

Once engaged, s. 10(b) imposes both informational and implementational duties on the police. The informational duty requires that the detainee be informed of the right to retain and instruct counsel without delay. The implementational obligation imposed on the police under s. 10(b), requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel. This obligation also requires the police to refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach a lawyer, or the detainee has unequivocally waived the right to do so.

[10] The accused, once detained, can choose to speak to any lawyer he wishes. He has a right to choose the lawyer from whom he obtains advice. However, the accused must act with diligence in the exercise of that right, and if the accused does, it is only if that lawyer is not available within a reasonable time that the accused should be expected to call another lawyer. Finally s. 10(b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact.

[11] On a Charter application, even if the application is raised by the Court, the accused bears the burden to establish a breach of the right to counsel. Here, the evidence stems from Officer Fraser’s lack of notes, inability to recall if Mr. Kovacevic asked for a specific lawyer, his apparent lack of understanding of his obligation toward informing Mr. Kovacevic of his counsel of choice and no evidence from Officer Fraser that he asked Mr. Kovacevic if he wanted to speak to a particular lawyer.

[12] While poor note taking in and of itself is not necessarily a Charter violation, the concern here, connected with the lack of notes, is that Officer Fraser, in response to my clarifying questions, seemed not to understand what he was reading to Mr. Kovacevic when he read the “rights” out of his notebook. He did not seem to comprehend his informational duty nor his implementational duty, which includes informing a detained person of his right to counsel of choice and then implementing the right to counsel of choice if asserted.

[13] Ultimately, Officer Fraser did not know if he asked Mr. Kovacevic who or if he even wanted to speak to counsel of choice, and he did not recall if a name was provided to him. I have no confidence that Officer Fraser understood his obligation, both implementational and informational, toward Mr. Kovacevic. Therefore, I find that Officer Fraser could not have complied with Charter obligations towards the accused and that the absence of notes in this area reflects that he did not inquire as to counsel of choice nor take any steps to implement it. I find that Officer Fraser simply put Mr. Kovacevic in contact with duty counsel. I also find that the question by the DRE officer “do you want to speak to a lawyer?” insufficient to cure the breach.

[14] The question by the DRE does not cure the breach because the DRE did not ask Mr. Kovacevic if there was a lawyer he wanted to speak to. The question in itself does not inform him that he can speak with counsel of choice. On the facts of this case, I found that Officer Fraser did nothing to inquire about counsel of choice. The question put to Mr. Kovacevic by the DRE did nothing to fill that informational gap.

[15] On these facts, simply reading from the card is not sufficient, especially when one does not understand what they are reading. The reality is that after reading the rights to counsel from the “card” for Officer Fraser to effectively implement the choice offered Mr. Kovacevic in the standard caution, that he can speak to any lawyer he wishes, he must ask him if there is anyone he wants to speak to.

[16] As the Supreme Court stated in Grant, “[c]onstitutional guarantees such as ss. 9 and 10 should be interpreted in a "generous rather than ... legalistic [way], aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection". As Justice Doherty stated in Rover, the right to counsel is a “lifeline for detained persons” to obtain legal advice and guidance while detained and to avoid the detainee being entirely at the mercy of the police. Mechanistically reading from the right to counsel card in the police notebook, not understanding that those words are offering an accused the right to counsel of choice, not inquiring with the accused, who is in a position of vulnerability to the state, who he wants to speak to, cannot be viewed by this Court, adopting a generous and purposive approach to Charter rights, as Officer Fraser complying with his Charter obligations under section 10(b).

[17] As a result, I find that it has been established on the balance of probabilities that a breach of the right to counsel occurred.

24(2) What Should I Exclude?

[18] I decline to enter upon the 24(2) analysis until after I have heard all of the evidence. First, this issue was raised by the Court itself and I do not know what all of the evidence is. I do not know what evidence could be intimately connected to the breach or what evidence may be remote. It would be arbitrary and unfair, at this point in the trial, to simply pick something to exclude. Moreover, as the Crown has noted, Mr. Kovacevic has not testified. He spoke to duty counsel, and I have no evidence from him as to how the breach impacted him, if at all, or if he was dissatisfied with the advice he received from duty counsel. There may be something in the further evidence called in the trial that may shed light on the impact, or lack thereof, on Mr. Kovacevic, which could play a significant role in the 24(2) analysis.

Signed: Justice M.K. Wendl