ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: SCA (P) 411/13
DATE: 20140306
B E T W E E N:
HER MAJESTY THE QUEEN
Shazin Karim, for the Crown
Respondent
- and -
ELEYAS HUSMAN
Ian J. Collins, for the Appellant
Appellant
HEARD: February 18, 2014
REASONS FOR JUDGMENT
[On appeal from the judgment of Cowan, J. dated June 17, 2013]
MacKenzie, J.
[1] This is a summary conviction appeal under s. 813 (1)(a) of the Criminal Code against the conviction for “impaired care or control” and “over 80 milligrams care or control” on or about June 17, 2013 and the sentence imposed by the Ontario Court of Justice (Cowan, J.) on the last mentioned date.
[2] The grounds for appeal as stated in the Notice of Appeal are as follows:
That His Honour erred in facts and law by concluding that the appellant’s right to counsel under s. 10(b) of the Charter of Rights and Freedoms was not violated.
That His Honour erred in facts and law by admitting evidence obtained after the s. 10(b) Charter violation.
That His Honour erred in facts and law by concluding that the Crown proved beyond a reasonable doubt that the accused had care or control of the vehicle while he was impaired by alcohol.
Such further grounds as transcripts may reveal, counsel may advise and His honourable court may permit.
[3] The following facts are not in contention in this appeal.
[4] On June 14, 2012, at 5 p.m., Constable S. Welfare attended the back parking lot of a bar located at Dixie Road and Britannia Road in Mississauga. She there observed the appellant asleep in the driver’s seat of his motor vehicle. His vehicle had its motor running, its headlights were on, the driver’s door was open, and the appellant’s feet were down by the gas and brake pedals.
[5] Constable Welfare woke the appellant up and assisted him out of the vehicle. She observed that the appellant had a strong smell of alcohol, slurred speech, and was unsteady on his feet. She formed the opinion that the appellant was impaired by alcohol. She arrested the appellant for impaired care and control at 5:22 a.m. on the day in question, and read his rights to counsel at 5:27 a.m.
[6] At trial, she testified in chief that the appellant responded at 5:27 a.m. to her addressing him on the rights to counsel in the following manner:
“I asked, do you wish to call a lawyer now? He said, ‘Uhh, I don’t know, uhh, yes.’”
“I asked if he had a specific lawyer he would like to contact, and he said, ‘Bobbie Ronka.’”
“I asked him for his phone number. He said, ‘I don’t know his phone number.’”
[7] Constable Welfare read the demand for a breath sample to the appellant at 5:30 a.m. and then transported him back to 12 Division, Peel Regional Police, arriving at 5:38 a.m.
[8] Constable Welfare took no steps to contact the appellant’s chosen lawyer, named Bobbie Ronka.
[9] After brief processing with a cells officer, Constable Welfare took the appellant into the breath room at 5:57 a.m. and turned him over to the breath technician, Constable Darcy. She remained in the room with the appellant and Constable Darcy for the full breath test procedure. Constable Welfare told Constable Darcy that she had read the rights to counsel but she said nothing to the cells officer and said nothing to Constable Darcy regarding the appellant’s request to speak to his lawyer, Bobbie Ronka.
[10] Constable Darcy, with Constable Welfare in attendance in earshot, said to the appellant, “Outside you declined to speak to a lawyer.” Constable Welfare said nothing and the appellant did not respond to this. At trial, Constable Darcy testified that he did not know where he got the information that the appellant declined to speak to a lawyer.
[11] Constable Darcy testified that he did not read the full rights to counsel to the appellant, but asked him, “Do you wish to call a lawyer now”, to which the appellant replied, “Not right now.”
[12] Constable Darcy further testified “And then I further explained to him that if he changed his mind, if he wanted to speak to a lawyer, we would make that happen.”
[13] The appellant testified at trial that he did want to speak to Mr. Ronka and that he did not repeat the request in the breathroom to Constable Darcy because he had previously made his request to Constable Welfare, who was also present in the breathroom when the appellant was talking with Constable Darcy. He further added that, “Maybe I was startled at the time, what I was going through.” He testified also that he thought he would get a chance to speak to his counsel, Mr. Ronka “Whenever they decided to let me.”
[14] The appellant’s readings upon completing the breath test were 201 milligrams and 199 milligrams.
[15] The position of the Crown on the appeal is that it accepts the above recital of facts propounded by the appellant, but indicates that the appellant never told Constable Darcy that he had not declined to talk to a lawyer in response to Constable Darcy’s putting such a proposition to him. The appellant had never asked Constable Darcy what was happening with Bobbie Ronka or if anyone had called Bobbie Ronka for him because he had spoken to Constable Welfare previously on this point, and that he was not bewildered or confused while in the breath room, and understood what was said and what was going on.
[16] At trial, Justice Cowan ruled that the appellant’s right to counsel under s. 10 of the Charter of Rights and Freedoms, although it had been breached, was nonetheless saved under s. 24(2) of the Charter, and that the Crown on the evidence had proven beyond a reasonable doubt that the appellant was in “impaired care or control” and was over 80 care or control of his motor vehicle.
[17] The issues raised on the appeal are set out in the appellant’s factum as follows:
a. The trial judge erred in law by finding there had been a breach of s. 10(b) of the appellant’s Charter right to counsel, but that the breach had been saved under s. 24(2) of the Charter, by the lack of diligence on the part of the appellant in bringing to the attention of Constable Darcy his previous request to Constable Welfare to speak to his counsel, Bobbie Ronka; and
b. the trial judge misapprehended the evidence in finding that the appellant had been read his full rights to counsel a second time by Constable Darcy as breath technician.
The Applicable Law
The Standard of Review
[18] The Crown submits that the summary conviction appeal court has no basis on which to interfere with the trial judge’s finding of fact unless they are clearly wrong, unreasonable or unsupported by the evidence. In essence, the trial judge’s findings of fact must demonstrate a palpable and overriding error and accordingly, a reviewing court is not entitled to review the case and substitute its own view of the evidence for that of the trial judge.
[19] In relation to questions of law, the standard of review is correctness; the court must clearly identify the error and show how the error likely affected the result and that this standard applies to facts underlying a ruling respecting Charter relief.
Analysis
[20] The ground of appeal which must be addressed by this court relates to the s. 10(b) Charter rights issue, rather than the findings of fact by the trial court that the appellant had at the material time breathalyser readings of over 80 and impaired while having the care or control of a motor vehicle.
The s. 10(b) Charter Right Issues
[21] Section 10(b) of the Charter provides:
- Everyone has the right on arrest or detention:
b. to retain and instruct counsel without delay and to be informed of that right.
[22] This right has been interpreted to include not only the right to retain counsel but the right to retain counsel of the accused’s choice: R. v. McCallen, 1999 3685 (ON CA), [1999] 131 C.C.C. (3d) 518, (OCA) para 34-40.
[23] Counsel for the appellant submits there will be a breach of the s. 10(b) right of the accused to retain and instruct counsel of choice if the police make no effort to facilitate contact with named counsel of choice: see R. v. Blackett, [2006] O.J. No. 2999, SCJ.
[24] Counsel refers to the decision in Blackett setting out a three-stage analysis to be utilized in determining compliance with s. 10(b). The court in Blackett sets out the three stages to be utilized in determining compliance with the s. 10(b) Charter right, making specific reference to exercising the s. 10(b) right to counsel of choice in the following terms:
Did the police fulfill their duty to act diligently in facilitating the rights of the accused to consult counsel of choice? If the trial judge finds they fulfilled their duty, then there is no breach of s. 10(b).
If the police did not fulfill their duty, then there are two possibilities:
i. If the police breached their duty because they took no step to facilitate the right to counsel, then a breach of s. 10(b) is established: R. v. Kumarasamy, [2002] O.J. No. 303.
ii. If the police breached their duty because they made some effort but it is found not to constitute “reasonable diligence,” the trial judge must decide whether the accused fulfilled his/her duty to act diligently to exercise the right to counsel. If the answer is yes, then s. 10(b) breach is made out. If the answer is no, then this trumps the breach of duty by the police and there is no breach of s. 10(b): R. v. Brydges, 1990 123 (SCC), [1990] 1 S.C.R. 190 and R. v. Richfield, 2003 52164 (ON CA), [2003] O.J. No. 3230 (OCA).
- If a breach of s. 10(b) is established, then the court must go on to consider whether or not to exclude the consequent evidence under s.24(2) of the Charter. The conduct of the accused is a factor which the court can consider: R. v. Tremblay (1987), 1987 28 (SCC), 60 C.R. (3d) 59 S.C.C. and Richfield. The court in Richfield suggested that the threshold for exclusion is higher in breathalyser cases, referred to in paragraph 18, page 5.
[25] Counsel for the appellant submits a court will only assess the diligence of the accused after that court finds that the police have made some effort to facilitate contact by the accused with counsel of his/her choice. Counsel gives as an example a situation where an accused refuses to speak to duty counsel after perfunctory efforts to reach his counsel of choice had failed. In this regard, counsel refers to the police making a phone call to designated counsel of choice by an accused which reaches an afterhours answering service and no response to the telephone call message is received in a reasonable time and police then offer the accused the opportunity to speak to duty counsel on a 24/7 basis.
[26] Counsel emphasizes that no effort was made by the police in these circumstances and that on whatever grounds, Constable Darcy was under the misapprehension of fact that the accused had declined the services of a lawyer and that Constable Welfare who was present at the time Constable Darcy made this observation to the accused did not correct Constable Darcy’s misapprehension.
[27] In contrast, the position of the Crown as set out in the Crown’s factum is that the trial judge did not misapprehend the evidence at trial relating to the s. 10(b) issues and that the accused’s s. 10(b) Charter right was not breached inasmuch as Constable Darcy read the accused his rights to counsel a second time and that Constable Darcy’s reading of the rights to counsel in the breathroom saved the breach by Constable Welfare in failing to make any efforts to have the accused contact his named counsel of choice, Bobby Ronka.
[28] I disagree with this reasoning. In effect, Constable Darcy’s misapprehension that the accused had declined to speak to a lawyer cannot justify the failure by Constable Welfare to make some effort to contact appellant counsel of choice. In like manner, Constable Darcy’s administration of the right to counsel cannot save the breach of the appellant’s right to counsel of choice under s. 24(2) of the Charter.
[29] In sum, the trial court in finding that the breach of the appellant’s s. 10(b) right to counsel by Constable Welfare was saved by Constable Darcy’s administration of the s. 10(b) right to counsel is an error of law having regard to the case law cited above: Brydges, Richfield and Blackett. In these circumstances, the appeal must be allowed.
[30] In the result, the conviction shall be set aside and an acquittal of the appellant on the charges shall be entered.
MacKenzie J.
Released: March 6, 2014
COURT FILE NO.: SCA (P) 411/13
DATE: 20140306
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
ELEYAS HUSMAN
REASONS FOR JUDGMENT
MacKenzie J.
Released: March 6, 2014