SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

REINER BARTZ

R E A S O N S F O R J U D G M E N T

BEFORE THE HONOURABLE JUSTICE R.D. CORNELL

On April 23, 2013 at PARRY SOUND, Ontario

APPEARANCES:

W. Beatty Counsel for the Crown

D. Burke Counsel for R. Bartz

TUESDAY, APRIL 23, 2013

R. v. Reiner Bartz [2013] ONSC 2420

THE COURT: Good morning.

MR. BEATTY: Good morning. For record, Your Honour, my name is Beatty...

THE COURT: Yes...

MR. BEATTY: ...first initial, W. I’m....

THE COURT: ...Mr. Beatty, we’ve had the pleasure.

MR. BURKE: Yes, Your Honour, my name is Burke. That’s BURKE, first initial D., from Mr. Barry’s office.

THE COURT: Is there a counsel slip?

COURTROOM CLERK: No, Your Honour.

THE COURT: Sorry, Burke, and your initial, sir?

MR. BURKE: Is “D”, as in David, Your Honour.

THE COURT: “D” for David. All right. Thank you, Mr. Burke. All right. Are we ready to proceed?

MR. BEATTY: Yes, Your Honour.

...SUBMISSIONS BY COUNSEL.

R E A S O N S F O R J U D G M E N T

CORNELL, J. (Orally):

This is summary conviction appeal by the Crown from a finding by the trial judge that there was a contravention of Mr. Bartz's Section 10(b) Charter rights. There is a further appeal from the decision of the trial judge whereby such evidence was excluded as a result of the finding of the Section 10(b) violation.

For the reasons which follow the appeal is allowed and the matter remitted for trial before a different judge.

The Facts:

On May 22nd, 2011, Mr. Bartz was stopped in a RIDE program. This occurred at approximately 6:05 p.m. on Saturday. That particular weekend was the May long weekend.

After detecting the odour of an alcoholic beverage, a request for a roadside screening was made. Mr. Bartz failed this screening. He was then arrested and taken to the police station where a breathalyzer test was to be administered. He was asked if he wished to speak to a lawyer. Mr. Bartz indicated that he wanted to speak to his brother’s lawyer. In an effort to facilitate this arrangement, the investigating officer was required to contact a friend of Mr. Bartz’s brother who provided contact information. The officer was then able to speak to Mr. Bartz’s brother, who indicated that he would call back to provide a telephone number along with the name of the lawyer.

While waiting for this return call, the investigating officer conducted a 4-1-1 telephone residential search of the Toronto area. She was able to find two listings. One listing for a Randal Barrs and a second listing for a R. Barrs.

Mr. Bartz’s brother returned the call and provided two additional telephone numbers for Randall Barrs. The first number was an office number, the second number was said to be an after-hours number. The investigating officer provided this information to Mr. Bartz.

When providing her evidence on this subject the officer gave the following evidence:

Answer: “I did get two. I got one Randall Barrs and one R. Barrs listed in the personal listings. But I wasn’t sure in regards to which Barrs it was. I did wait for Mr. Gord Bartz to call back, which he did at 7:27 p.m., and given the - giving the following number for Mr. Randall Barrs. He actually gave me two numbers; one, the first number was 416 485 6466, which was an after-hours number, and the second number was 416-366-6466.”

Question: “Yes.”

Answer: “At 7:29 p.m. I did call the after-hours number. There was no answer, but there was an answering service, which I left a voice message on. At 7:33 p.m. I did advise Mr. Bartz, Mr. Rainer Bartz, that I had spoken to his brother and received - been given the after-hours numbers and that I had tried the after-hours number and left a message. I then asked, explained, duty counsel to Mr. Bartz again, and asked if he wished to contact legal duty counsel. Mr. Bartz replied, ‘All right. Let’s give a few minutes for his lawyer.’ I asked if it would be all right if I contacted duty counsel as well for Mr. Bartz, who - and see who he could speak to first, whoever contacted - called back first to speak to him.”

Question: “And what, if any, response did Mr. Bartz make to that proposal?”

Answer: “He agreed to it at that time.”

Duty counsel did call back first. Mr. Bartz spoke with duty counsel in a private setting.

A concern was raised by the investigating officer that the fact that her inability to contact the - contact Randall Barrs should be made known to the duty counsel lawyer. When she attempted to do this she discovered that duty counsel had hung up.

Following his telephone conversation with duty counsel, Mr. Bartz indicated to the officer that he didn’t like the guy, that he was a government lawyer. He went on to say that he wanted to now speak with his brother’s lawyer. At that juncture, Mr. Bartz was taken into the breath sample room where he provided breath samples.

The officer went on to indicate that she did not receive a call back from Randall Barrs that day. She did receive a message from him when she returned to work the following Wednesday, but she was unable to indicate when that message had actually been left for her.

The trial took place on January 27th, 2012, before Klein, J. At the opening of trial, counsel for the accused indicated that he was making an application for a finding that Mr. Bartz’s Section 10(b) Charter rights had been violated. The trial judge conducted a voir dire. Constable Wilson was the only witness to testify. The accused did not testify and offered no evidence.

The Law:

The onus is on the accused in these circumstances to show that there has been a violation of his Section 10(b) rights.

Analysis:

The trial judge begins by asking the question, "Were reasonable steps taken to satisfy Mr. Bartz's request that he speak to Randall Barrs?” The trial judge goes on to answer this question by holding that reasonable steps had not been taken.

In making this determination, the trial judge makes a specific finding that the arresting officer did not take reasonable steps to assist the accused person to speak with the lawyer of his choice.

The trial judge found that the investigating officer satisfied the informational component imposed on her, but failed to satisfy the implementation obligations which exist.

The position taken by Crown counsel on this appeal is that trial judge made many assumptions, or engaged in a certain amount of conjecture in order to reach the conclusions that he did. In making this submission, Crown counsel points to the fact that the trial judge indicated at page 103 of his reasons that,

"Even an after-hours number on the Saturday evening of that long weekend was not likely to be a procedure that would be fraught with success.”

The trial judge goes on to say at page 105,

"She should have known that placing a call to the after-hours number of Mr. Barrs on a Saturday evening of a long weekend was destined to failure.”

There was simply no evidence before the trial judge to support these conclusions.

Counsel for respondent took the position that the implementation component fell short because the officer, firstly, could have waited longer; secondly, could have called the 4-1-1 residential numbers, and thirdly, could have placed a second telephone call to the after-hours number.

The difficulty with this approach, and the difficulty with the findings of trial judge, is that the facts do not support such an approach.

In this particular case, the accused indicated that he would speak with whichever lawyer called back first. There is no dispute in the evidence about this fact.

Mr. Bartz did not diligently pursue his choice of counsel by saying to the investigating officer that he did not wish to speak to duty counsel until some additional time had passed to see if Mr. Barrs might call. It was only after speaking to duty counsel that Mr. Bartz changed his position and indicated that he wanted to speak to his brother’s lawyer because he didn’t like the duty counsel lawyer and he was a “government lawyer.”

To the best of my knowledge, there is no obligation on a police officer to conduct a

4-1-1 residential search for a lawyer’s home telephone number. In this particular case, the investigating officer took that exercise upon her. The search, as I have mentioned, resulted in two possible telephone numbers for the lawyer in question. However, there was no evidence led on the voir dire to confirm, or indicate, that the numbers that the officer obtained were, in fact, the residential numbers of lawyer, Randall Barrs.

The further difficulty with this approach lies in the fact that an unmanageable burden may be imposed on an investigating officer if they are required to conduct 4-1-1 residential telephone listing inquiries. In this particular case, only two possible telephone numbers were generated. However, if the lawyer's name had been John Jones or Sam Smith, a 4-1-1 inquiry would likely have generated hundreds of possibilities. No one could expect a police officer in those circumstances to conduct such an inquiry.

In this case, the issue of the residential inquiry became academic after the after-hours number was provided and after Mr. Bartz agreed to speak to whichever lawyer first called.

The trial judge makes the following comment at page 106,

“At no time in this analysis, and in the facts that were before me, did Mr. Bartz specifically waive his rights to counsel of his choice.”

This finding is not supported by the evidence and is contrary to the evidence of the investigating officer who testified that Mr. Bartz specifically did agree to speak to the first lawyer who returned the call.

The trial judge goes on to find on page 104 that Mr. Bartz's agreement was given "reluctantly". This is repeated on page 105 at line 31 where the trial judge, once again, finds that Mr. Bartz “reluctantly agreed” to proceed on a dual track basis. There is nothing in the trial evidence to suggest that Mr. Bartz's agreement was reluctant in any fashion whatsoever.

Having spoken to duty counsel, it was incumbent on the accused to raise legal concerns about the advice he had received, or to testify that he misunderstood his rights after speaking to duty counsel. Mr. Bartz did not do that. In the absence of such evidence, there is no basis to find, on the facts of this case, that Mr. Bartz's Section 10(b) Charter rights had been infringed. See R. v. Littleford 2001 8559 (ON CA), [2001] OJ No. 2437.

Conclusion:

The investigating officer provided Mr. Bartz with an option. The option was to allow her to call duty counsel and to speak to the first lawyer who returned the call. Mr. Bartz chose to avail himself of that option and voluntarily agreed to that arrangement. He did not diligently pursue his right to speak to his counsel of choice.

There was no evidence offered as to why further legal advice might have been required. Mr. Bartz did not testify or offer any evidence on the voir dire that he misunderstood his legal situation after speaking to duty counsel. He did not call any evidence to show that the residential numbers which were obtained by the investigating officer were, in fact, a residential number for lawyer, Randall Barr. No evidence was called to show that even if those numbers had been lawyer Randall Barr’s number, whether he, in fact, would have been available on Saturday night of a holiday weekend.

When I take all facts into consideration, Mr. Bartz has failed to satisfy the onus which rests upon him. Accordingly, I find that there was no violation of Mr. Bartz’s Section 10(b) Charter rights.

Section 24(2) Analysis

In the event that I am incorrect in this finding, I will turn to consideration of Section 24(2) of Charter. Assuming that I had found that there had been a violation of Mr. Bartz’s Section 10(b) Charter rights, the court is required to conduct a Section 24(2) analysis.

The trial judge applied the analysis contained in R. v. Collins 1987 84 (SCC), [1987] 1 SCR 265. In so doing, he erred in that the analytical framework to be used when addressing a Section 24(2) application is now found in R. v. Grant 2009 SCC 32, [2009] 2 SCR 353. The following three factors are required when considering Section 24(2):

1. The seriousness of the Charter infringing State conduct;

2. The impact of the breach on the Charter protected interests of the accused; and

3. Society’s interest in the adjudication of the case on its merits.

These factors are to be assessed and balanced when conducting the Section 24(2) analysis.

Dealing with the first factor, I make the observation that case law has determined that this is an issue which lies upon a spectrum. That is to say, less serious to more serious Charter breaches. When considering this factor, the court must also take into account whether or not the police were acting in good faith. The trial judge makes two specific findings that the investigating officer was, in fact, operating in good faith. This is not a case of a systemic problem or police misconduct. In my opinion, if there was a Charter breach in this case, it lies towards the less serious end of the spectrum. Accordingly, this would be a factor which would suggest that the evidence should be admitted.

With respect to the impact of the Charter breach on the accused, I note that this is not a case where Mr. Bartz had no legal advice provided to him. The fact of the matter is that he did receive legal advice from duty counsel in accordance with the understanding or agreement that he had reached with the investigating officer. Accordingly, I find that the Charter breach would have little impact given the fact that legal advice was provided. This would also suggest that the evidence should be admitted.

The third factor deals with society’s interest in the adjudication of the case on its merits. This question necessarily invites a consideration of society’s interest in seeing the Charter rights and values are protected.

In this particular case, given the less serious nature of the Charter breach, if it occurred, and the fact that Mr. Bartz received legal advice from duty counsel, it is my opinion that societies’ interest in an adjudication on the merits outweighs any possible Charter breach.

Having assessed and balanced these various factors, it is my opinion that the admission of this evidence would not bring the administration of justice into disrepute. Accordingly, if there has been a Charter breach in this case, I would still permit the admission of the evidence.

Accordingly, the appeal is allowed and the matter is remitted to the Provincial court for trial on the merits before a different judge. Counsel, the procedure now is that the court will order a copy of my decision and once it has been prepared, it will be released in formal fashion. So, neither of you need concern yourself with the issue of ordering a transcript.

MR. BURKE: Thank you, Your Honour.

M A T T E R A D J O U R N E D

FORM 2

Certificate of Transcript

Evidence Act, subsection 5 (2)

I, Brenda Wakelin, certify that this document is a true and accurate transcript of the record R. v. Reiner Bartz in the Superior Court of Justice, 89 James Street, Parry Sound, Ontario taken from Recording No. 3011 Courtroom 1 20130423 094944, which has been certified in the Form 1 by T. Dixon.

(Date)

(Signature of authorized person(s))

Brenda Wakelin, B.Sc., B.Ed., OCT, CCR, ICDR Certified Court Reporter, CRAO

Internationally Certified Digital Reporter, IAPRT

PLEASE NOTE:

Any copies of this transcript are unauthorized and are in direct violation of Ontario Regulation 587/91, Courts of Justice Act, January 1, 1990. If additional copies are required, please contact the Records Management Clerk.

This transcript is a true certified copy bearing the original signature in blue ink.

Transcript Ordered: April 23, 2013

Transcript Completed: May 19, 2013

Notified Ordering Party: May 27, 2013

Legend

[sic] – Indicates preceding word has been reproduced verbatim and is not a transcription error.

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