ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-02043
DATE: 20121018

BETWEEN:

HER MAJESTY THE QUEEN – and – CHRISTIAN GADSDEN Respondent

B. Juriansz, for the Crown
T. Kaye, for the Respondent

HEARD: September 14, 2012

ON APPEAL FROM THE JUDGMENT OF JUSTICE P. TETLEY OF THE ONTARIO COURT OF JUSTICE DATED APRIL 20, 2011.

McCARTHY J.:

[ 1 ] Her Majesty the Queen (the Crown) appeals from the decision of Tetley J. of the Ontario Court of Justice given on April 20, 2011. The Crown appeals from the Respondent’s acquittal in respect of the “Over 80” count only, specifically in relation to the trial judge’s ruling on a s.10 (b) Charter application brought by the Respondent.

[ 2 ] This appeal centres on the circumstances in which an accused in custody (detainee) is entitled to re-consult with counsel. The issue on the s.10(b) application involved the Respondent, while a detainee, reiterating his request to speak to his own counsel of choice after having spoken to duty counsel, and whether the breath technician was obliged to halt the breath test procedure and attempt to put the Respondent back in touch with duty counsel for another consultation.

[ 3 ] Two breath samples were taken from the Respondent. They revealed 195 mg of alcohol in 100 ml of blood and 190 mg of alcohol in 100mg of blood respectively.

THE FACTS

[ 4 ] The Respondent was operating a motor vehicle in the early morning hours of February 16, 2010, when he was stopped by the police. Police noted some of the usual indicators of the consumption of alcohol. The Respondent was arrested for impaired operation of a motor vehicle, cautioned, and provided with his right to counsel. He requested to speak with his lawyer, Barry Fox. When the breath sample demand was read, the Respondent reiterated his request to speak with counsel.

[ 5 ] Numerous attempts were made by police to put the Respondent in contact with his counsel of choice, without success. The trial judge found that the police had complied with both the information and implementation components of s. 10 (b) of the Charter.

[ 6 ] The Respondent spoke to duty counsel in private. He was then turned over to the breath technician, at which time he reiterated several times his desire to speak to counsel of his choice. The breath technician was aware that the Respondent had already spoken to duty counsel. The technician did not interrupt the testing procedure in order to afford the Respondent a further opportunity to speak with counsel.

THE TRIAL JUDGE’S FINDINGS

[ 7 ] The trial judge made the following key findings:

a) The Respondent repeatedly asked for Mr. Fox (his lawyer);

b) The Respondent spoke with duty counsel for a very short period of time;

c) After speaking with duty counsel, the Respondent immediately requested the opportunity to speak with Mr. Fox; and

d) There was no evidence that the Respondent ever expressed any degree of satisfaction with the advice received.

[ 8 ] The trial judge found that the Respondent’s s. 10 (b) rights were breached as a result of his not being afforded the opportunity to re-consult counsel during the breath testing procedure. Pursuant to s. 24(2) of the Charter, the trial judge excluded the breath test results from the evidence.

ISSUES AND LAW

[ 9 ] Did the trial judge err in concluding that the Respondent’s s. 10 (b) Charter rights were violated? If not, did the trial judge err in concluding that the evidence of the breath test results should be excluded pursuant to s. 24(2) of the Charter?

THE RIGHT TO RECONSULT COUNSEL

[ 10 ] The obligation on a police officer to suspend the breath testing procedure to afford to the Respondent an opportunity to re-consult with counsel is governed by the Supreme Court of Canada decisions in R v. Sinclair, 2011 SCC 40, R v. McCrimmon, 2010 SCC 36, and R v. Willier, 2010 SCC 37. For the purposes of this appeal, the above cases are referred to as the “trilogy”.

[ 11 ] In Sinclair, the Court began by acknowledging that normally s. 10 (b) affords the detainee a single consultation with a lawyer. However, in some instances, a further opportunity to consult a lawyer may be constitutionally required. These generally involve a material change in the detainee’s situation (circumstances) after the initial consultation.

[ 12 ] The Supreme Court went on to identify three instances that could represent a change in the detainee’s situation that would warrant a renewed consultation with counsel:

a) Where there are new procedures involving the detainee;

b) Where there is a change in the detainee’s jeopardy;

c) Where there is reason to question the detainee’s understanding of his s. 10 (b) rights.

[ 13 ] In identifying these situations in which a second consultation with counsel was required, the Supreme Court sought to provide guidance to investigating police officers. However, the Court added that the categories were not closed and enunciated a general principle underlying the circumstances discussed:

...where a detainee has already retained legal advice, the implementational duty on the police under s. 10 (b) includes an obligation to provide the detainee with a reasonable opportunity to consult counsel again where a change of circumstances makes this necessary to fulfill the purpose of s. 10 (b) of the Charter of providing the detainee with legal advice on his choice of whether to cooperate with the police investigation or decline to do so.

[ 14 ] The Court added that this change of circumstances had to be objectively observable:

The change of circumstances...must be objectively observable in order to trigger additional implementational duties for the police. It is not enough for the accused to assert, after the fact, that he was confused or needed help, absent objective indicators that renewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so.

[ 15 ] In addition, the objectively observable changed circumstances must have compromised the sufficiency or usefulness of the initial exercise of the s. 10 (b) rights:

The failure to provide an additional opportunity to consult counsel will constitute a breach of s. 10 (b) only when it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewed contextually, is no longer sufficient or correct. This is consistent with the purpose of s. 10 (b) to ensure that the detainee’s decision to cooperate with the police or not is informed as well as free.

THE TRIAL JUDGE’S REASONING

[ 16 ] The trial judge applied the criteria in Sinclair and McCrimmon and concluded that both the second and third situations indentified in Sinclair were present in the case at bar: the Respondent’s jeopardy had changed, and there was reason to question the detainee’s understanding of his s.10 (b) rights. The Respondent had been deprived of his s.10 (b) rights, having not been afforded a further opportunity to consult counsel.

[ 17 ] As a starting point, the trial judge referenced the direction provided by Chief Justice McLaughlin in McCrimmon:

A principled and purposeful interpretation of the section 10 (b) right to counsel....requires detainees should be accorded a renewed right to consult in circumstances where a new procedure is involved, a change of jeopardy arises, or there is reason to believe the initial advice received may have been deficient.

CHANGE IN JEOPARDY

[ 18 ] The trial judge gave the following reasons for why he found that the accused faced a change in jeopardy during his arrest, the ensuing investigation, and his interaction with the breath technician:

Clearly the defendant could have chosen not to comply with the breath demand. I conclude he may well have been under the impression such a choice was not available to him. As the qualified technician cannot indicate with certainty that the prospect of a new charge relating to the potential consequences of noncompliance with the officer’s breath demand may have arisen during his interaction with the defendant I am unable to conclude the defendant may not have been facing a change in jeopardy or that the initial advice received was sufficient.

[ 19 ] It is useful to excerpt from the Supreme Court of Canada judgment in Sinclair the entire passage on what constitutes a “change in jeopardy” for the purposes of a renewed right to seek counsel:

The detainee is advised upon detention of the reasons for the detention: s. 10(a). The s. 10(b) advice and opportunity to consult counsel follows this. The advice given will be tailored to the situation as the detainee and his lawyer then understand it. If the investigation takes a new and more serious turn as events unfold, that advice may no longer be adequate to the actual situation, or jeopardy, the detainee faces. In order to fulfill the purpose of s. 10 (b), the detainee must be given a further opportunity to consult and obtain advice on the new situation.

[ 20 ] The Appellant argued that, in the case at bar, the Respondent’s jeopardy did not change during the course of the investigation. He was arrested for impaired driving and was issued a breath demand prior to his consultation with duty counsel. Thereafter, he had the choice to comply with the breath demand or face a criminal charge of refusing to provide a sample of his breath. His legal jeopardy never changed.

(i) Change in Jeopardy: the findings of fact

[ 21 ] In my view, both the reasoning and the application of the law to the facts by the trial judge on this issue are troubling. He emphasized that the defendant could have chosen not to comply with the breath demand. He then concluded that the defendant “may well have been under the impression such a choice was not available to him.” The breath technician could not indicate with certainty that the prospect of a new charge relating to the failure to provide a breath sample had arisen during his interaction with the Respondent. In the absence of such evidence, the trial judge found that he was “unable to conclude the defendant may not have been facing a change in jeopardy or that the initial advice received was sufficient.”

[ 22 ] In my view, the trial judge’s findings do not constitute factual findings upon which a court could properly conclude that the detainee was the subject of a change in jeopardy required under the second facet of Sinclair. Evidentiary findings must be made explicitly. Charter applications should be no exception. Such applications do not require the Crown to prove anything beyond a reasonable doubt. Indeed, as in any evidentiary contest, the burden of proof lies on the party seeking to establish the alleged fact to satisfy the court on a balance of probabilities. A court of law is required to make positive findings sufficient to move the issue to the next level of analysis. The above quoted passages do not represent proper findings of fact. Nor do they constitute inferences which could be reasonably drawn from other established facts. At most, they are suppositions.

[ 23 ] I find that the trial judge, having failed to make positive findings of fact, erred in then moving on to apply the law of change of jeopardy to an unfounded factual scenario. There was no underlying factual basis for the trial judge’s analysis of change in jeopardy. In failing to make positive findings that would justify this analysis before it started, he committed a palpable and overriding error.

(ii) Change of Jeopardy: a question of mixed fact and law

[ 24 ] I also agree with the Appellant that the trial judge erred in determining that the there was a change in jeopardy arising from the prospect of a new charge being brought against the Respondent. On a question of mixed law and fact, the standard of review should lie along a spectrum, and a certain amount of deference should be afforded to the trial judge. The second facet of the Sinclair test of when a detainee should be afforded a further right to consult with counsel developed out of a number of decisions of the Supreme Court, including R v. Evans, 1991 98 (SCC), [1991] 1 S.C.R. 869. In that case, the court found that the police had a duty to advise the accused of his or her right to counsel a second time when new circumstances arose indicating that the accused was a suspect for a different, more serious crime than was the case at the time of the first warning.

[ 25 ] In the case at bar, the investigation never took on a new or more serious turn as events unfolded. The accused was not a suspect in a different, more serious crime or incident. The breath demand was issued prior to his consultation with duty counsel. The respondent had a choice: either comply with the demand or face a criminal charge of refusing to provide a breath sample. While a refusal to provide a breath sample is a separate offence under the Criminal Code, it carries with it the same penalty as the charges that the Respondent was facing when the breath sample was demanded. Moreover, there was no evidence that the accused refused to provide a breath sample, or even that he raised that as a possibility to the breath technician. There were no charges pending or even contemplated by the police at the time the respondent requested a re-consultation with counsel. PC Scott conceded that it was possible that he told the Respondent that not providing a breath sample was a criminal offence. PC Scott was quite rightly unable to state what the Respondent may have been thinking at the time. The fact that the Respondent provided the sample after stating, “I will provide...because I have to” does not amount to a change in jeopardy. From any reasonably objective standpoint, the accused faced no change in jeopardy. The trial judge erred in his application of the principles set out by the Supreme Court in Sinclair, Willier and McCrimmon to the facts of the case at bar. That error was sufficiently serious that it cannot survive a reasonable affording of deference on this question of mixed fact and law.

THE DETAINEE’S UNDERSTANDING OF HIS SECTION 10(b) RIGHTS

(i) The trial judge’s findings

[ 26 ] The third change in circumstances that may give rise to a detainee’s renewed right to consult with counsel is described at paragraph 52 of Sinclair:

If events indicate that a detainee who has waived his right to counsel may not have understood his right, the police should reiterate his right to consult counsel, to ensure that the purpose of s. 10 (b) is fulfilled. More broadly, this may be taken to suggest that circumstances indicating that the detainee may not have understood the initial s. 10 (b) advice of his right to counsel impose on the police a duty to give him a further opportunity to talk with a lawyer.

[ 27 ] The law is clear that the police are not required to monitor the quality of the legal advice provided to detainees or to ensure that detainees are wise in their choices of what to do with the legal advice received. The advice received from counsel is privileged. It is assumed to be sufficient and correct in relation to how the detainee should exercise his rights (see Willier at paras. 40-41; Sinclair at paras. 26 and 57). Thus, the trial judge’s finding that there was no evidence duty counsel addressed the issue of declining a breath demand should not have entered into his Sinclair analysis.

[ 28 ] The trial judge again exhibited an unwillingness to make clear findings of fact sufficient to warrant the Sinclair analysis. At page 12 of the transcript, he stated as follows:

Given the defendant’s continuing request to have a further opportunity to speak to duty counsel and evidence that suggests he was under the mistaken impression that he must comply with the officer’s breath demand, I conclude a change in circumstances may well have arisen creating a situation where a further opportunity to consult counsel, on whether to cooperate with the police investigation or to decline to do so, was warranted in order to fulfill the purpose of section 10 (b). [Emphasis added.]

[ 29 ] The trial judge erred in failing to make a finding which would entitle him to apply the principles in Sinclair. This failure constitutes an overriding and palpable error.

(ii) Application of the trilogy principles

[ 30 ] The trial judge then went on to summarize his factual findings and to apply the principles from the trilogy to the case at bar:

In view of the defendant’s continuous request to speak to counsel following his consultation with duty counsel I conclude a principled and purposeful approach to section 10(b), in these unusual circumstances, required the qualified technician to accord a renewed right to consult counsel to the defendant. He simply could not ignore the repeated request. I appreciate counsel of choice was not likely to be reached, but a further consultation with duty counsel could have alleviated any of the uncertainty with respect to the choice confronting the defendant and the potential legal consequences of non compliance with the officer’s demand for samples of the defendant’s breath. The mere fact the defendant indicated a willingness to comply with the demand does not relieve the officer, once the detainee has invoked his right to speak to a lawyer, of the obligation to ensure that the decision has been made on an informed basis. The defendant’s repeated assertions of a further request to speak to a lawyer, albeit one that was not readily available ought to have cast some doubt on that issue.

[ 31 ] The trial judge found that the Respondent made repeated requests to consult with counsel. On the evidentiary record, he was entitled to make that finding and did so in a positive fashion.

[ 32 ] The only question the trial judge should have considered at that point, if he was properly considering the third situation envisaged by Sinclair, was whether that series of requests constituted an event or circumstance objectively indicating that the detainee may not have understood the initial s. 10 (b) advice of his right to counsel.

[ 33 ] The right to advice from counsel must not be confused with the quality of advice received from counsel. It is assumed that the initial legal advice received was sufficient and correct in relation to how the detainee should exercise his right in the context of police investigation (see Sinclair, at para. 57). In Willier, the Supreme Court elaborated on what is required of a detainee in order to alert the police to a lack of satisfaction with the exercised right to counsel, “...unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative.” Accordingly, the trial judge’s finding that there was no evidence that duty counsel addressed with the detainee the issue of a failure to comply and the possible consequences of not doing should have been afforded no weight.

[ 34 ] It is not up to the Crown to establish what advice the detainee did or did not receive. What matters is whether there were any objectively observable circumstances or events to indicate that the detainee may not have understood his rights. The trial judge failed to identify any objectively observable signs of misunderstanding.

[ 35 ] The trial judge did not find that the Respondent had expressed any dissatisfaction to the police in spite of the brevity of his consultation with defence counsel. Nor did the trial judge make a finding that the detainee was exhibiting objective signs of confusion or dissatisfaction. Instead, the trial judge was only prepared to conclude that there was evidence that, “...suggests he [the detainee] was under the mistaken impression that he must comply with the officer’s breath demand.”

[ 36 ] In my view, the trial judge failed to consider an essential component of the trilogy test: whether there were objective indicators that the renewed legal consultation was required in order that the accused would be capable of making a meaningful choice as to whether to cooperate with the police investigation or refuse to do so. It is not enough for the accused to assert, after the fact, that he was confused or needed help (see Sinclair, at para. 55). In his own testimony, the accused conceded that he had not conveyed any level of dissatisfaction or confusion arising from his consultation with duty counsel. The following exchange from the cross-examination of the accused emphasizes the point:

Mr. Juriancz : And what I want to understand is whether or not you told the police, ‘look, I’m dissatisfied with that phone call that I just had. I didn’t understand what I was told’ or ‘hey, I still want to speak with Mr. Fox?

Mr. Gadsden (Accused ): Oh, I would’ve been implying both of those.

[ 37 ] This was not a situation where the accused, at any stage of the interview, gave the police reason to doubt that he misunderstood, or was uncertain about the role of, duty counsel at the time of the exercise of his initial s. 10 (b) rights. In Her Majesty the Queen v. Edward Taylor, 2012 ONSC 4340, the court found that the evidence established on an objective standard that the accused may not have understood that he was actually speaking with a lawyer. That mistaken belief was made abundantly clear to the interviewing officer who conceded that, at the time of the interview, she believed that the detainee had misunderstood the role of duty counsel. The court found that the third situation envisaged in Sinclair had arisen and that the detainee should have been afforded a right to re-consult with counsel.

[ 38 ] Nor should a mere repeated request to speak to counsel, absent anything else, form the basis for an obligation on the police to advise a detainee of a right of re-consultation with counsel. As stated in Sinclair at para. 65 :

...the principles and case-law do not support the view that a request, without more, is sufficient to retrigger the s. 10 (b) right to counsel and to be advised thereof. What is required is a change in circumstances that suggests that the choice faced by the accused has been significantly altered, requiring further advice on the new situation...

[ 39 ] The trial judge misapplied the law to the facts of the case as it pertained to the third situation envisaged by the Supreme Court in the trilogy. He failed to consider whether the suggested confusion and misapprehension of the Respondent were objectively observable. He gave undue weight to the repeated requests of the detainee to consult further with counsel without regard to the caveat issued in Sinclair about that factor. He failed to appreciate the difference between the detainee’s understanding of his s.10 (b) rights and his understanding of the advice that he may have received from duty counsel during the exercise of his 10 (b) rights.

OTHER SITUATIONS GIVING RISE TO A “CHANGE IN CIRCUMSTANCES”

[ 40 ] In Sinclair, the Supreme Court made it clear that the categories of situations that could lead to findings of changed circumstances sufficient to warrant further s.10 (b) rights were not closed. At paragraph 54, the court noted:

Where the circumstances do not fall into a situation previously recognized, the question is whether a further opportunity to consult a lawyer is necessary to fulfill s. 10 (b)’s purpose of providing the detainee with the advice in the new or emergent situation.

[ 41 ] Having found that the trial judge erred in his application of the law in Sinclair in respect of the two identified situations of “change in jeopardy” and “understanding of rights”, it remains for this court to determine whether the trial judge has identified a type of situation where a change in circumstances would warrant the police affording further s. 10 (b) rights to a detainee.

[ 42 ] In doing so, I must bear in mind that a trial judge is entitled to a significant degree of deference. The trial judge sought to adhere to a principled and purposeful interpretation of s. 10 (b) rights which would require that detainees should be able to speak to a lawyer again during the course of a custodial interrogation where a change of circumstances makes this necessary. He sought to fulfill the purpose of s. 10 (b) of the Charter; that is, to provide the detainee with legal advice on his choice of whether to cooperate with the police investigation or decline to so. This approach is certainly in line with the approach taken the trilogy of cases.

[ 43 ] The trial judge cites “unusual circumstances” in the case at bar, sufficient to require the breath technician to accord a renewed right to consult counsel to the defendant. Yet, those “unusual circumstances” are not identified and do not appear to be present on the record. The record reveals that this was a relatively straightforward police investigation into a charge of impaired driving.

[ 44 ] In addition, the trial judge fell into reversible error when he failed to make a finding that there had been a change of circumstances. His only finding was that a change of circumstances “may well have arisen”. This was not a positive finding. In my view, what is required in order to invoke the trilogy principle is, at the very least, a positive factual finding of an objectively observable change in circumstances of some significance. Such a finding was clearly lacking in the case at bar.

[ 45 ] I conclude that the trial judge, having correctly stated the principle from the trilogy, then failed to properly apply it. The “change in circumstances” requirement remains a constant in any assessment of a when a renewed right to s.10 (b) rights should be afforded. That renewed right is not automatically triggered because a detainee requests further consultation with counsel. Nor are the police required to evaluate the accuracy or completeness of the advice from counsel received by the detainee. The change in circumstances must be objectively observable. The state of mind of the detainee is not relevant unless it manifests itself in some measurably objective fashion. The police are not expected to perform an exit interview on a detainee.

SECTION 24 (2)

[ 46 ] The trial judge, having found a violation of the respondent’s rights under s. 10 (b), then moved on to the analysis under s. 24 (2) and held that the evidence of the breath samples should be excluded. In my view, he properly conducted that analysis and applied the appropriate principles.

DISPOSITION

[ 47 ] The trial judge committed palpable and overriding errors in failing to make adequate factual findings which could serve as the basis for a Sinclair analysis.

[ 48 ] Having properly identified the law and principles from the trilogy, the trial judge nevertheless fell into reversible error by failing to apply them properly to the case at bar. While his decision is entitled to a certain amount of deference, I find that the errors were sufficiently serious as to warrant appellate intervention.

[ 49 ] I would therefore allow the appeal, set aside the judgement of the trial judge and order a new trial of the matter.

McCARTHY J.

Released: October 18, 2012