ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. Glenfield, 2015 ONSC 1636

COURT FILE NO.: CJ 7681

DATE: 2015-03-12

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Jeremy Glenfield

D. Russell, for the Crown

P. Burstein, for the Defendant

HEARD: September 22, 23, 24, 29, 30, October 1, 2, 6, 7, 8, 9, 10, 14, 2014 and February 17, 19, 20, 23, 24, 25, 2015

THE HONOURABLE MR P.B. HAMBLY

Index

A. Overview

B. The Voir Dires

C. The Facts

1. The Accident

2. The Statement To Foster At The Accident Scene

3. Proceedings At The Police Station

4. Statement To Paramedic Speers

D. Analysis

1. Admissibility of Statement To Foster At The Accident Scene

2. Denial Of Right To Counsel At The Police Station

(i) The Use Of A Telephone And The 1-800 Duty Counsel Number

(ii) Right To Counsel Means Right To Counsel Of Choice

(iii) Police Must Permit An Accused To Contact A Third Party To Assist In Retaining Counsel

(iv) Duty Counsel Is Not An Adequate Substitute For Private Counsel: Panigas and Soomal

(v) Conclusion On Denial Of Right To Counsel Of Choice

3. Admissibility Of Statement To Paramedic Speers

E. Conclusion

Judgment

After hearing argument I gave an oral judgment in which I dismissed the application of the accused. I reserved my right to provide written reasons. These are my reasons.

A. Overview

[1] Jeremy Glenfield (Glenfield) is charged with impaired driving causing death, dangerous driving causing death and refusing to provide a breath sample without reasonable excuse knowing that his operation of a motor vehicle caused an accident resulting in bodily harm to another person whose death ensued. These charges arise out of a motor vehicle accident on December 22, 2011 at the intersection of Nafziger Road and Gerber Road immediately south of the Town of Wellesley in the Regional Municipality of Waterloo. Glenfield has brought an application to exclude from evidence a statement that he made to Constable Foster at the scene of the accident that he had not been drinking, an audio-video that the police made of his actions and statements at the police station including his not providing a sample of his breath to Constable Ogram, the evidence of his not providing a sample of his breath and a statement that he had not been drinking which he made to a paramedic in the ambulance that took him to hospital after he left the police station. He submits that in receiving this evidence the police violated his rights guaranteed by sections 7 and 10(b) of the Charter and that the evidence should be excluded from the trial pursuant to section 24(2) of the Charter. In my view he has not established that the police violated any of his Charter rights. I am also of the opinion that his statements to Cst. Foster at the scene and to the paramedic in the ambulance on the way to the hospital must be admitted into evidence.

B. The Voir Dires

[2] Glenfield elected to be tried by a court composed of a judge and jury and to proceed with a preliminary hearing. He was committed for trial. At the outset of the trial in Superior Court, Glenfield, with the consent of the crown, re-elected to be tried by me sitting as a Superior Court judge without a jury. He proceeded with voir dires on two Charter applications that he brought, including this one. Evidence counsel wished called on the voir dires was also relevant to issues on the trial. Counsel agreed that the crown could call evidence that would be strictly relevant only on the trial as well as evidence on the voir dires. Glenfield could call evidence that would be relevant only on the voir dires if he wished. Regardless of the outcome of the voir dires, the evidence called by the crown would apply on the trial. After hearing all the evidence that counsel wished to put before the court on the voir dires and by the crown on the trial sufficient to put the voir dires in context, I directed that counsel deliver written submissions according to a time table. I also set a date for oral submissions on the voir dires.

C. The Facts

1. The Accident

[3] Glenfield drove a 2012 Grand Cherokee Jeep SUV west on Gerber Road. Kevin Huber drove his 2007 Dodge van south on Nafziger Road. At its intersection with Gerber, Nafziger is a through road and there are stop signs for the traffic on Gerber. Glenfield did not stop for the stop sign for westbound traffic on Gerber Road. In the van beside Kevin Huber was his wife, Erna Huber. In the back seat were their sons Derek Huber behind his mother and Jeremy Huber behind his father. The Jeep struck the van on the passenger door immediately behind the driver. Jeremy Huber was killed as a result of injuries that he suffered in the accident. He was 11 years of age.

[4] There is a woodworking shop in a parking lot on the southwest corner of the intersection. The impact of the collision caused the Huber vehicle to spin counter clockwise in a full circle. It came to rest in the parking lot facing southwest. The Glenfield vehicle proceeded through the intersection. The impact of the collision caused it to spin counter clockwise in a full circle. It came to rest facing east against the supporting wire of a hydro pole on the south shoulder of Gerber west of Nafziger. Erna Huber exited her vehicle. She was shaken but not injured. Glenfield also exited his vehicle. He sustained a sprain to his right ankle. It was apparent that Jeremy Huber was seriously injured.

[5] Four people including Will Klassen who were working in the woodworking shop heard the sound of the collision. They immediately came outside. In relation to Jeremy Huber Glenfield said that “if that guy (or kid) doesn’t make it, I am gonna kill myself”. Erna Huber said, “do not do that God loves you.” Glenfield’s attitude quickly changed from one of guilt and remorse to one of self-preservation. Erna Huber asked Glenfield why he had hit them. He responded that they had hit him. Will Klassen said, “of course you hit them.” He smelled alcohol on Glenfield’s breath. Numerous police officers, two paramedics and other civilians were quickly on the scene.

2. The Statement To Foster At The Scene

[6] The accident took place at 9:12 p.m. Constable Foster arrived at the scene at 9:22 p.m. Will Klassen said to Foster that he smelled alcohol on Glenfield and that believed that Glenfield was drunk. He said that Foster should give him a breathalyzer test. Foster asked Glenfield if he was the driver of the Jeep. Glenfield said that he was. Foster asked him for his driver’s licence and the ownership and insurance slip for the vehicle. Glenfield retrieved his driver’s licence from his pocket and gave it to Foster. He returned to the Jeep, retrieved the ownership and insurance documents from the vehicle and gave them to Foster. Glenfield was limping. It was apparent that he had suffered an injury to his right ankle. While speaking with Glenfield Foster noticed a smell of alcohol on his breath. He asked Glenfield if he had been drinking. Glenfield said “no”. This is the statement that Glenfield seeks to exclude.

[7] At 9:35 p.m. Foster demanded of Glenfield that he provide a sample of his breath. Glenfield placed the tube leading into the breathalyzer in his mouth. On two occasions he blew out the sides of his mouth. On a third occasion he sucked on the tube. Foster warned him that he would be charged with refusing to provide a suitable sample of his breath if he did not blow properly into the machine. On the fourth occasions he did provide a suitable sample. He failed the test. Foster arrested Glenfield for over 80.

[8] At 9:39 p.m. Foster read to Glenfield from his police notebook the following:

The Charge and Right to Silence

You are being charged with driving a motor vehicle with more than 80 mg. of alcohol in 100 ml. of your blood. Do you wish to say anything in answer to that charge? You are not obliged to say anything unless you wish to do so, but whatever you say may be given as evidence. Do you understand that?

Right to Counsel

It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for legal assistance. 1-800-265-0451 is a toll free number that will put you in contact with a legal aid duty counsel lawyer for free legal advice.

[9] At 9:42 p.m., Foster asked Glenfield, “Do you wish to call a lawyer?” He responded, “for sure”. Foster asked, “Who would you like to speak to?” Glenfiield replied, “I’ll think about that.” Foster then asked, “Can you clarify that you want to think about the lawyer?” Glenfield said “Yeah, it’s not like I have one in place.” Foster then told Glenfield that he could always call duty counsel as well. Foster handcuffed Glenfield from the rear and placed him in the back of his police cruiser. Foster instructed him to place his legs on top of the back seat as this would relieve to some degree the discomfort that he appeared to be having from an injury to his right ankle. Contrary to this suggestion Glenfield placed his feet under the front seat.

3. Proceedings at the Police Station

[10] Foster departed from the scene of the accident in his police cruiser with Glenfield at 9:58 p.m. They arrived at the police station in Kitchener 25 minutes later and 1 hour and 11 minutes after the accident at 10:23 p.m. Foster removed Glenfield from his police cruiser. He escorted him down a ramp and into the booking area of the police station.

[11] Present were Constable Ogram, who was the breath technician, and Sergeant Clements, who was in charge of booking prisoners. Clements was behind the counter. She took identifying information from Glenfield which she recorded on a booking form. Foster removed the handcuffs from Glenfield. He placed Glenfield’s right hand on the counter. He told Glenfield to leave it there. Glenfield let his hand drop to his side. Foster placed Glenfiled’s left hand on the counter and told him to leave it there. Glenfield let his left hand drop to his side. Glenfield asked 3 times for permission to contact his mother for the purpose of her getting a lawyer for him. The police refused to permit him to do this. He then asked to contact Andrew Spire whom he said was a lawyer. He did not have his telephone number. The police handed him a directory of lawyers in Ontario listed alphabetically with their telephone numbers. Glenfield was unable to locate Andrew Spire in the directory. Later he told the police that Andrew Spire was not a lawyer but a paralegal. He said that his name would not be in the book of lawyers in Ontario. The police noted that he was looking in the m’s.

[12] At 10:46 p.m. Foster took Glenfield to interview room number 2. He started an audio video recorder. Later the police took him into the breathalyzer room where an audio recorder was also started. Counsel provided to me transcripts of what was recorded on the audio recorders. Computer discs were entered as exhibits of the recordings. A transcript of the recording made in the interview room is attached hereto and marked Exhibit A. A transcript of the recording made in the breathalyzer room is attached hereto and marked Exhibit B.

[13] Foster left Glenfield alone in the interview room. Foster re-entered the interview room at 10:51 p.m. Ogram also came into the interview room. Foster arrested Glenfield on a charge of Impaired Driving. He read to him again from his notebook the right to counsel advice set out above.

[14] At 10:57 p.m. Foster told Glenfield that he would call his mother. Foster and Glenfield had arrived at the police station at 10:23 p.m. Allowing four minutes for Foster to take Glenfield to the booking desk and for some preliminary conversation this was about 30 minutes after Glenfield had first asked the police to permit him to call his mother for the purpose of having her assist him in getting a lawyer. At 11:00 p.m. Donna Glenfield received a telephone call at home from Foster. He told her that her son was under arrest at the police station and that he wanted her to contact a lawyer who would speak to him.

[15] At 11:13 p.m. paramedics Lea Williams and Lindsey Haack arrived. They came into the interview room and spoke with Glenfield about the injury to his right ankle. There was discussion about his going to hospital. At 11:24 p.m. Glenfield, the paramedics, Foster and Ogram moved out of the interview room and into a hallway.

[16] The paramedics had a mobile stretcher. The voices on the audio recording cannot be identified with certainty. There were three police officers present – Foster, Ogram and Clements. One officer asks Glenfield for the name of his lawyer. There was further discussion about Glenfield going to hospital. Foster got on the stretcher and then he got off it. A male officer who would appear to be Ogram asked Glenfield for the name of his lawyer. Glenfield responded: “... you know what I’ve never had a lawyer... Like I said, can I get a hold of my mother?” A male officer who would appear to be Ogram responded that he needed to stay at the police station “for a little bit” until the question of his speaking with a lawyer was resolved. Glenfield said “...I just need to talk to my mom”. An officer who appeared to be Ogram said “... you can’t talk to mom, we’ve covered that”. Glenfield asks if he could talk to his father or his girlfriend. A female officer who would appear to be Clements said in a mocking tone “loy-yer” (ph). Glenfield said that he does not deal with lawyers. He asked Foster if he had spoken with his mother. It would appear that Foster told him that he had. A male officer is heard to say “She said you’re a big boy...” Glenfield said you are a “fucking liar”.

[17] At 11:26 p.m. Foster contacted Duty Counsel. At 11:37 p.m. Duty Counsel called back. Glenfield was placed in a small room alone with a phone that could receive incoming calls only. He spoke with Duty Counsel for about one minute.

[18] At 11:38 p.m. he was returned from this telephone room to the interview room. The paramedics left the police station while Glenfield was talking to Duty Counsel.

[19] Glenfield was alone in the interview room between 11:38 p.m. and 11:49 p.m. when Foster entered the interview room. He told Glenfield that he was charged with four counts of Impaired Driving causing bodily harm and four counts of driving over 80 causing bodily harm. He read him his right to counsel again.

[20] Donna Glenfield made many phone calls in an attempt to find a lawyer who would agree to provide legal advice to her son. At 11:50 p.m. she spoke with Bruce Ritter. He is a criminal defence lawyer who practices in Kitchener. He said that he would contact her son at the police station and provide legal advice to him. At 12:00 p.m. Donna Glenfield phoned the police station. This was 1 hour after Foster had called her and 1 ½ hours after Glenfield first asked the police to permit him to call her. She spoke with Constable Loschman. She asked to speak with Foster. She said that she had retained Bruce Ritter to represent her son and that he would be phoning the police station to speak with him. Foster was in the breath room explaining to Ogram his grounds for making a demand on Glenfield that he provide a sample of his breath. Loschman told Donna Glenfield that Foster was not available. Foster did not know that Donna Glenfield had called until after the breath test procedure was over when he received a post it note with the names Donna Glenfield and John Ritter.

[21] At 12:06 a.m. Foster went into the interview room and told Glenfield that he was charged with four counts of Dangerous Driving Causing Bodily Harm. He read to him his right to counsel again.

[22] Glenfield was taken out of the interview room and into the telephone room where he again spoke with Duty Counsel between 12:10 a.m. and 12:15 a.m. This was after Donna Glenfield had called the police station and told Constable Loschman that she had retained Bruce Ritter to represent her son and that he would be calling the police station to speak with him. At 12:15 a.m. Foster took Glenfield into the breath room where Ogram was located. Ogram advised Glenfield of his right to remain silent. He made a demand that he provide a sample of his breath. He explained to him how to do this. Ogram explained the breath test procedure to him.

[23] After Glenfield failed approximately eight times to provide a breath sample, Ogram charged him with failure to provide a breath sample at 12:28 a.m. Foster then returned Glenfield to the interview room.

[24] Mr. Ritter called the police station at 12:17 a.m. He spoke with Sergeant Clemens. He told her that he had been retained to represent Glenfield. Sergeant Clemens told Mr. Ritter that Glenfield was in the breath room. She declined to let Mr. Ritter speak with Glenfield. She told Mr. Ritter that Glenfield had already spoken with Duty Counsel twice. She agreed to tell Glenfield that Mr. Ritter had called as soon as he was finished in the breath room.

[25] As soon as Glenfield exited the breath room he was given an opportunity to speak with Mr. Ritter. He spoke with him from 12:38 a.m. to 12:48 a.m. Mr. Ritter represented him in court in the morning.

4. Statement To Paramedic Speers

[26] As the result of a phone call that Clements made, two paramedics arrived at the police station while Glenfield was speaking with Mr. Ritter. As soon as he was finished speaking with Mr. Ritter they made arrangements to take him to hospital for treatment to his ankle injury. Foster accompanied paramedic Holly Speers and Glenfield in the back of the ambulance. Paramedic Speers filed a report in which she noted that Glenfield said that “he was T-boned in an intersection” and that he “denied any alcohol consumption”. Glenfield made these statements in response to a question from paramedic Speers as to what happened. This is the statement that Glenfield seeks to exclude. She also stated in her report that Foster said that Glenfield had been drinking and that it was his vehicle which T boned another vehicle in an intersection.

D. Analysis

1. Admissibilty of Statement To Foster At The Accident Scene That He Had Not Been Drinking

[27] The crown will not want to use the denial of Glenfield that he had been drinking as evidence of its truth. It could be of use to the crown in challenging Glenfield’s credibility if he chooses to testify. Glenfield submits through Mr. Burstein that his statement to Foster at the scene that he had not been drinking must be excluded from evidence for three reasons – it was a statutorily compelled statement in reporting an accident and giving his statement to the police violates his right to remain silent which is guaranteed by s. 7 of the Charter, that it was a statement to Foster made in response to a question by him to give him grounds to make a roadside demand to Glenfield to provide a sample of his breath at the roadside which can only be used for that limited purpose and cannot be used at trial and that it is a statement to a person in authority which the crown has not proved Glenfield made voluntarily. I reject all these grounds.

Statutorily Compelled Statement

[28] In R. v. White, 1999 689 (SCC), [1999] 2 S.C.R. 417, the Supreme Court of Canada held that a statement by an accused that she was the driver of the vehicle in an accident was inadmissible at her trial. This was because she gave the statement pursuant to an “honest and reasonably held belief that … she was required by law to report the accident to the person to whom the report was given" (para. 109). She had gone home after the accident without reporting it. She then reported it later because she believed rightly that she had a duty to report it.

[29] Here Glenfield admitted that he was the driver of the Jeep at the scene. There were witnesses at the scene who identified Glenfield as the driver of the jeep. He gave Foster his driver’s licence which was in his pocket and the ownership and insurance papers for the vehicle which he retrieved from the glove compartment. In my view, Glenfield could not be said to have made the statement pursuant to “an honest and reasonably held belief” belief that he was required by law to report whether or not he had been drinking. Obviously, he had been drinking. Will Klassen smelt alcohol on him. There was evidence from Michael Muschamps and Olivia Toth that he had been drinking at their residence not long before the accident. I appreciate that their credibility is at issue. I have not heard submissions on their evidence at this point in the trial. An officer found an open bottle of liquor in Glenfield’s vehicle. It could not be seriously argued that he had not been drinking before the accident. His denial that he had been drinking is an obvious lie.

Grounds For A Roadside Breath Demand

[30] In R. v. Milne, 1996 508 (ON CA), [1996] O.J. No. 1728, the Court of Appeal in the judgment of Justice Moldaver held that physical coordination tests performed by an accused at the request of an investigating officer for the purpose of determining whether there were grounds for the officer to make a demand that he provide a sample of his breath at the roadside were not admissible at his trial. Justice Moldaver stated the following:

[46] The unfairness arises in part from the fact that the motorist has been conscripted against himself or herself when, at the behest of the police, he or she is required to undertake co- ordination tests designed to establish or disprove impairment. The use of that evidence, which could not have been obtained but for the participation of the motorist in its construction, would tend to render the trial process unfair. Moreover, the use of the test results to prove impairment at trial constitutes an impermissible broadening of the scope and purpose of the testing procedures contemplated by s. 48(1) of the HTA. Since the tests were not meant to provide the police with a means of gathering evidence to incriminate the motorist at trial, surely it would render the trial unfair if the state could use them for that purpose.

[47] The test results should not be admitted to prove impairment. Instead, their use should be limited to the purpose set out in s. 48(1) of the HTA: to justify the officer in making a demand under s. 254 of the Criminal Code.

[31] In R. v. Coutts, 1999 3742 (ON CA), [1999] O.J. No. 2013, the Court of Appeal in the judgment of Justice Moldaver held that the results of a roadside breathalyser test could not be used to challenge “evidence to the contrary” that an accused introduced at trial to challenge the presumption that his blood alcohol content when he was driving was the same as it was when he took the breathalyser test. Justice Moldaver stated the following:

[29] To the extent, however, that the Crown seeks to use the roadside test results at trial to impeach "evidence to the contrary," I am of the view that the principles in Milne, supra, apply, such that the use of the evidence for that purpose would render the trial unfair. The unfairness arises because the motorist has been compelled, at the behest of the state, to provide evidence that would not have been obtained but for the motorist's participation in its construction and the evidence is being tendered for a purpose beyond that contemplated by s. 254(2) of the Code.

[32] In R. v. Morrison, 2006 12722 (ON SC), [2006] O.J. No. 1606 (approved by the Court of Appeal in R. v. Rivera, 2011 ONCA 225, [2011] O.J. No. 1233), at issue was whether the crown could use statements of an accused made at the roadside to challenge her explanation as to why she had not provided a sample of her breath. On appeal, Justice Molloy stated the following:

[35] It is not the case, as suggested by the Crown, that refusal to blow cases cannot ever be prosecuted if Milne and Coutts apply. Roadside utterances made without the right to counsel are not inadmissible for all purposes. Such statements are relevant and admissible to prove the reasonable basis for the officer's demand for a breath sample: R. v. Milne; R. v. Coutts. Further, statements that are part of the actus reus of an offence are always admissible: R. v. Stapleton (1982), 1982 3331 (ON CA), 66 C.C.C. (2d) 231 (Ont.C.A.); R. v. Pincock, [2003] O.J. No. 5459, (S.C.J.). Therefore, any statements made by Ms. Morrison as to the process of attempting to give the breath sample are admissible to demonstrate whether she was really trying or whether there was some valid basis for her not being able to comply. However, her statements as to what she had to drink, and when, have no bearing on whether she properly complied with the demand for a breath sample. They are relevant only to credibility. If Ms. Morrison had taken the breathalyzer test and then been charged with impaired driving, her statements at the roadside as to her drinking would not be admissible to attack her credibility: R. v. Coutts. I see no principled basis for treating those statements differently in the situation before me than would be the case if Ms. Morrison had been charged with impaired driving. Accordingly, in my view, using the roadside statements to undermine her credibility was an impermissible use of that evidence and a breach of her Charter rights.

[33] At the time at the scene when Foster asked Glenfield if he had been drinking, Will Klassen had already told Foster that he had smelled alcohol on Glenfield and that the thought that he was drunk. Foster smelled alcohol on him. He did not need further evidence to form a reasonable belief that he had been driving a motor vehicle with alcohol in his body. He had ample grounds to make a demand on him to provide a sample of his breath.

Voluntariness

[34] The cases that hold that the driver of a motor vehicle which the police stop is detained triggering the driver’s right to be advised of his right to counsel under s. 10(b) of the Charter do not apply to these facts. When Foster asked Glenfield if he had been drinking Foster was in the very early stages of his investigation in a chaotic scene. Glenfield could be classified as a witness or at most as a person of interest on the question as to whether a crime had been committed. Foster was making a statement to a uniformed police officer conducting a criminal investigation and hence a person in authority. The Crown must prove that Glenfield made the statement voluntarily in the sense that he had a right to choose as to whether to make the statement (Hebert and Singh). Given that Glenfield obviously lied I find that he must have realized this.

Conclusion

[35] Glenfield’s statement to Foster denying that he had been drinking is admissible at the trial.

2. Alleged Denial of Right To Counsel At The Police Station

[36] The Charter states the following:

10. Everyone has the right on arrest or detention. . .

(b) to retain and instruct counsel without delay and to be informed of that right;...

[37] Foster told Glenfield at the scene and repeated to him at the police station at least four times in the interview room initially when they entered and after he advised him of further charges against him from a printed form on the inside of his police notebook the following:

It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for legal assistance. 1-800-265-0451 is a toll free number that will put you in contact with a legal aid duty counsel lawyer for free legal advice.

While the police advice does not say so explicitly there would seem to be an implication that the accused will be provided with a telephone that he can use to contact a lawyer of his choice or to contact duty counsel at the number stated.

[38] When Foster first entered the interview room at 10:51 p.m. after placing Glenfield there at 10:46 p.m. he advised him of the additional charge of impaired driving and read to him the police advice of his right to counsel. Glenfield asked to make a phone call. Foster asked him if he wanted to speak to duty counsel. Glenfield stated no and repeated that he wanted to make a phone call. This was an extension of his request to call his mother that he had made at the booking desk for the purpose of her calling a lawyer for him. Foster said that he would call a lawyer on his behalf. Glenfield said that he did not care what Foster wanted to do. Foster responded “It’s not what I want to do. It’s what’s going to happen”. In my view, what Foster was telling Glenfield was that regardless of Foster’s personal wishes he would apply the policy of the Waterloo Regional Police put in place by his superiors. That policy, as Foster understood it at the time, was not to permit an accused to contact a third party for the purpose of the third party retaining a lawyer for him. It was also not to permit him to use a phone for that purpose. The police officer would contact a lawyer for him by the officer making the telephone call once the accused had told him whom to call. Glenfield would not be permitted the use of a telephone for the purpose of contacting either a private lawyer of his choice or a government lawyer free of charge in the form of duty counsel.

[39] About ½ hour later, Foster changed his position on calling Glenfield’s mother. Foster did call his mother. He told her that her son was under arrest for over 80, that he was at the police station and that he was requesting that she find a lawyer for him. She said that she would attempt to do so and that she would call back. Foster gave her the number to call.

(i) The Use Of A Telephone And The 1-800 Duty Counsel Number

[40] In R. v. Manninen 1987 67 (SCC), [1987] 1 S.C.R. 1233, the accused was arrested by the police in a business office. They charged him with armed robbery. They advised him of his right to counsel. The following took place:

[6] The respondent made a flippant remark at the reading of the caution and the right to counsel to the effect that "It sounds like an American T.V. program". Train re-read the whole card to the respondent and, at that time, the respondent said:

Prove it. I ain't saying anything until I see my lawyer. I want to see my lawyer.

The police continued to question him. He made incriminating remarks. The Supreme Court of Canada held in the judgment of Justice Lamer that the police had denied to him his right to counsel. He was convicted at trial. The Supreme Court upheld the Ontario Court of Appeal in ordering a new trial.

Justice Lamer stated the following:

[21] In my view, s. 10(b) imposes at least two duties on the police in addition to the duty to inform the detainee of his rights. First, the police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay. The detainee is in the control of the police and he cannot exercise his right to counsel unless the police provide him with a reasonable opportunity to do so. …

[22] In my view, this aspect of the right to counsel was clearly infringed in this case. The respondent clearly asserted his right to remain silent and his desire to consult his lawyer. There was a telephone immediately at hand in the office, which the officers used for their own purposes. It was not necessary for the respondent to make an express request to use the telephone. The duty to facilitate contact with counsel included the duty to offer the respondent the use of the telephone. Of course, there may be circumstances in which it is particularly urgent that the police continue with an investigation before it is possible to facilitate a detainee's communication with counsel. There was no urgency in the circumstances surrounding the offences in this case. (emphasis added)

[41] In R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, the accused was arrested for impaired driving. A police officer took him to the police station. The officer advised him of his right to counsel and of the availability of free legal advice through duty counsel. He was not advised of how he could contact duty counsel immediately by phoning a 1-800 number that the officer had recorded in his notebook. He told the officer that he had had 5 or 6 beers after playing baseball. He took breathalyser tests at the police station which he failed by a significant margin. He was convicted at trial of impaired driving. He was acquitted by the summary conviction appeal court which was overturned by the Court of Appeal. The Supreme Court of Canada held that the police had denied his right to counsel guaranteed by s. 10(b) of the Charter. It held that the accused’s statement and the breathalyzer test results should be excluded from evidence pursuant to s. 24(2) of the Charter. It acquitted the accused.

[42] In his judgment Chief Justice Lamer held that it was part of the informational and implementation duties of the police which s. 10(b) required to inform the accused of the availability of Duty Counsel through a 1-800 telephone number and to give the accused an opportunity to contact duty counsel through this number by providing him with a telephone for this purpose. Chief Justice Lamer stated the following:

(a) The Purpose of Section 10(b)

[16] 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 67 (SCC), [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 118 (SCC), [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 61 (SCC), [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.

(b) The Duties Under Section 10(b)

[17] This Court has said on numerous previous occasions that s. 10(b) of the Charter imposes the following duties on state authorities who arrest or detain a person:

(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;

(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); 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).

(See, for example, Manninen, at pp. 1241-42; R. v. Evans, 1991 98 (SCC), [1991] 1 S.C.R. 869, at p. 890; and Brydges, at pp. 203-4.) The first duty is an informational one which is directly in issue here. The second and third duties are more in the nature of implementation duties and are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel.

[18] Importantly, 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 correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended: R. v. Tremblay, 1987 28 (SCC), [1987] 2 S.C.R. 435, at p. 439, and R. v. Black, 1989 75 (SCC), [1989] 2 S.C.R. 138, at pp. 154-55. (emphasis added)

[21] To conclude, because the purpose of the right to counsel under s. 10(b) is about providing detainees with meaningful choices, it follows that a detainee should be fully advised of available services before being expected to assert that right, particularly given that subsequent duties on the state are not triggered unless and until a detainee expresses a desire to contact counsel. In my opinion, the purpose of the right to counsel would be defeated if police were only required to advise detainees of the existence and availability of Legal Aid and duty counsel after some triggering assertion of the right by the detainee. Accordingly, I am unable to agree with the trial judge and the Court of Appeal below that information about duty counsel and how to access it need only be provided to detainees when they express some concern about affordability or availability of counsel. Indeed, in putting forward such a position, I can only conclude with respect that both the trial judge and the Court of Appeal erred in their interpretation and application of Brydges. It is, therefore, to a consideration of Brydges that I must now turn.

[28] … Brydges stands for the proposition that police authorities are required to inform detainees about Legal Aid and duty counsel services which are in existence and available in the jurisdiction at the time of detention. In case there is any doubt, I would add here that basic information about how to access available services which provide free, preliminary legal advice should be included in the standard s. 10(b) caution. This need consist of no more than telling a detainee in plain language that he or she will be provided with a phone number should he or she wish to contact a lawyer right away. Failure to provide such information is, in the absence of a valid waiver (which, as I explain infra, will be a rarity) a breach of s. 10(b) of the Charter.

[43] The senior management of the Waterloo Regional Police has adopted a procedure which the front line officers who arrest people are required to follow. The arresting officer advises the arrestee that he has a right to telephone any lawyer that he wishes or in the alternative he may phone duty counsel at a 1- 800 number which the officer provides. This procedure is consistent with Bartle and obviously modelled after it. This is not what happens in practice. The arresting officer does not permit the arrestee to make any phone calls. If the arrestee is able to provide the arresting officer with the name and telephone number of a lawyer whom he wishes to call the officer will call the lawyer. If the arrestee is not able to do this and he indicates a desire to speak with duty counsel the officer will call duty counsel. Whether it be a private lawyer or duty counsel with whom the arrestee wishes to speak the officer phones the lawyer. The officer then connects the accused to the lawyer through a phone that accepts incoming calls only in a phone booth where the officer places the arrestee. The arrestee speaks with the lawyer. The lawyer advises him as to what he should do.

[44] Mr. Burstein put forth an eloquent argument that the police were violating the procedure mandated by the Supreme Court of Canada in not permitting Glenfield to actually dial calls to counsel. Respectfully, I disagree. The object is to put the accused in contact with counsel. Whether that is accomplished by the police dialling a phone number either to private counsel or duty counsel or the accused doing it himself seems to me to be irrelevant.

[45] Mr. Burstein argues that in R. v. Woolbeck 2010 ABCA 65, [2010] A.J. No. 508, the Alberta Court of Appeal decided that the duty of the police under s. 10(b) requires "at a minimum, the police offer detainees the use of a telephone" (para. 60 of Factum). In this case the accused was convicted of impaired and over 80 based on breath samples that he provided at the police station. While he was in handcuffs at the police station a police officer dialed the number for duty counsel whom the accused then consulted in private. The Alberta Court of Appeal held that there was no obligation on the police to permit the accused to dial the number himself. The court stated the following:

[21] There is no suggestion the respondent was not advised of his right to counsel, and of the availability of Legal Aid. That discharged the informational duty. The respondent was placed in a room with a telephone, a telephone book, and information about Legal Aid, and he was given an opportunity to consult counsel in private. That prima facie discharged the relevant implementational duty of providing a reasonable opportunity to exercise the right.

[22] Once the police have discharged their informational and implementational duties they are entitled to take a passive role with respect to the accused's right to counsel. But merely because the police go further than their bare duties does not automatically mean that there is an infringement of the accused's right to counsel. Further involvement by the police, or gratuitous assistance rendered to the accused in exercising the right to counsel, does not equate to a breach of the Charter right. "Assistance" or "involvement" are not the same thing as "interference" or "infringement". The determination of whether the involvement of the police is "interference" or "assistance" is one best left to the trier of fact as it will be highly dependent on the circumstances in each case.

[23] Even though the police only have the informational and implementational duties mentioned, it does not follow that they must desist from providing any assistance to the accused in his or her attempts to contact counsel. ... There is no Charter prohibition on the police assisting an accused in contacting counsel, only a prohibition on the police interfering with the right to contact counsel. That the police provided some assistance (whether requested or not) is a neutral factor unless there is evidence of interference in the right to contact counsel. There is no such evidence on this record. Specifically, there is no evidence that the police contrived in some way to make the respondent consult Legal Aid rather than some other counsel. Indeed there is no evidence that the respondent ever had any intention to consult anyone other than Legal Aid.

This case does not seem to stand for the proposition cited by Mr. Burstein.

(ii) Right to Counsel Means Right to Counsel of Choice

[46] In R. v. Ross, 1989 134 (SCC), [1989] 1 S.C.R. 3, two accused were charged with Break and Enter. The police arrested them and took them to the police station late at night. The police advised them of their right to counsel and gave them access to a telephone to permit them to do so. Each attempted to contact his lawyer but no one answered the telephone. The police asked one of he wished to attempt to contact another lawyer and he declined. The police then proceeded to conduct a line up. There was no legal obligation for the arrested persons to participate in the lineup. The accused sought to have the line up evidence excluded at trail pursuant to s. 24(2) of the Charter based on an allegation that the police had violated their right to counsel guaranteed by s. 10(b) by failing to give them a reasonable opportunity to retain their counsel of choice. The trial judge dismissed their application. They were convicted. The Court of Appeal upheld the conviction. The Supreme Court of Canada in the judgment of Chief Justice Lamer held that the evidence ought to have been excluded and ordered a new trial. Chief Justice Lamer stated the following:

[13]…. The mere fact that he did not want to call another lawyer cannot fairly be viewed as a waiver of his right to retain counsel. Quite the contrary, he merely asserted his right to counsel and to counsel of his choice. Although an accused or detained person has the right to choose counsel, it must be noted that, as this Court said in R. v. Tremblay, 1987 28 (SCC), [1987] 2 S.C.R. 435, a detainee must be reasonably diligent in the exercise of these rights and if he is not, the correlative duties imposed on the police and set out in Manninen are suspended. Reasonable diligence in the exercise of the right to choose one's counsel depends upon the context facing the accused or detained person. On being arrested, for example, the detained person is faced with an immediate need for legal advice and must exercise reasonable diligence accordingly. By contrast, when seeking the best lawyer to conduct a trial, the accused person faces no such immediacy. Nevertheless, accused or detained persons have a right to choose their counsel and it is only if the lawyer chosen cannot be available within a reasonable time that the detainee or the accused should be expected to exercise the right to counsel by calling another lawyer.

[14] Moreover, once the appellant asserted his right to instruct counsel, and absent a clear indication that he had changed his mind, it was unreasonable for the police to proceed as if Leclair had waived his right to counsel. As a majority of this court held in Clarkson v. The Queen, 1986 61 (SCC), [1986] 1 S.C.R. 383, at pp. 394-95:

Given the concern for fair treatment of an accused person which underlies such constitutional civil liberties as the right to counsel in s. 10(b) of the Charter, it is evident that any alleged waiver of this right by an accused must be carefully considered and that the accused's awareness of the consequences of what he or she was saying is crucial. Indeed, this Court stated with respect to the waiver of statutory procedural guarantees in Korponay v. Attorney General of Canada, 1982 12 (SCC), [1982] 1 S.C.R. 41, at p. 49, that any waiver "... is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process" (emphasis in original).

Since the evidence reveals that Leclair asserted his right to counsel, the burden of establishing an unequivocal waiver is on the Crown. Here, the Crown has failed to discharge the onus.

[15] In the case of the appellant Ross, there is no evidence that the police even asked whether he wanted to call another lawyer. Once Ross had tried and failed to reach his lawyer, it would appear that the police assumed their obligation to provide a reasonable opportunity to retain counsel was at an end. One can reasonably infer that they also misconstrued the nature of their obligation as concerned the appellant Leclair. Obviously, there was no urgency or other reason justifying that the police proceed forthwith and it cannot be said that the appellants had a real opportunity to retain and instruct counsel. This therefore leads us to consider the second duty.

The Second Duty: Refraining from Taking Further Steps

[16] Having seen that the appellants got no answer to their phone calls, the police officers placed them in police cells and a few minutes later, the appellants were told to participate in a line-up, which they did.

[17] The police were mistaken to follow such a procedure. As this Court held in Manninen, the police have, at least, a duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel. In my view, the right to counsel also means that, once an accused or detained person has asserted that right, the police cannot, in any way, compel the detainee or accused person to make a decision or participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until that person has had a reasonable opportunity to exercise that right. In the case at bar, it cannot be said that the appellants had a real opportunity to retain and instruct counsel before the line-up was held. Nor can it be said that there was any urgency or other compelling reason which justified proceeding with the line-up so precipitously.

[18] The Crown urged upon us that it was necessary to hold the line-up immediately, while the memories of the witnesses were fresh and undisturbed. I cannot accept this submission. While it may be desirable to hold a line-up as soon as possible, this concern must generally yield to the right of the suspect to retain counsel, which right must, of course, be exercised with reasonable diligence. Here, the line-up was held with utmost, indeed highly unusual dispatch. There is nothing to suggest that the line-up could not have been held a few hours later, after the appellants had again attempted to contact their lawyers during normal business hours.

[47] The facts in Ross are to be contrasted with the facts of this case where there was urgency in the police obtaining the breath test before alcohol disappeared from Glenfield’s body by natural processes. (See also the Kumarasamy , paras. 20-22)

(iii) Police Must Permit An Accused To Contact A Third Party To Assist In Retaining Counsel

[48] In R. v. Kumarasamy, [2002] O.J. No. 303 the facts are summarized in the headnote as follows:

Appeal by Kumarasamy from his conviction for refusing to provide a breath sample. Kumarasamy was detained after he showed symptoms of impaired driving. He asked several times to call a friend to get the number for his personal lawyer. Instead, the police had him speak to duty counsel.

The breath test officer was of the opinion that he did not make a sincere effort to provide a sample of his breath and charged him with failure to provide a sample of his breath. Justice Durno held that the breath test results ought to have been excluded from evidence on the grounds of breach by the police of the accused’s right to counsel of choice. He stated the following;

[23] Is there a breach of s. 10(b) if the police do not permit the detainee to contact a friend or relative to facilitate contact with counsel? In R. v. Tremblay (1987), 1987 28 (SCC), 60 C.R. (3d) 59 (S.C.C.), the accused was permitted to contact his wife and asked her to call back when she had reached his lawyer. The Court found a breach of s. 10(b), when the officers did not wait for the return call before asking the accused to provide a breath sample. Had the right to counsel not included the right to do so through the assistance of a third party, there would have been no violation of s. 10(b).

[24] Relying on Tremblay, supra, Borins J. concluded in R. v. McNeilly (1988), 10 M.V.R. (2d) 142 (Y.T.S.C.), the right to retain and instruct counsel includes the right to contact others to obtain counsel. Similar conclusions were reached in R. v. Oester [1989] A.J. No. 648 (Alta. Q.B.), R. v. LaPlante (1987), 1987 209 (SK CA), 40 C.C.C. (3d) 63 (Sask. C.A.), and R. v. Goodine [1989] A.J. No. 220 (Alta. C.A.).

[25] In the vast majority of cases, once the detainee has expressed a desire to contact counsel, police must facilitate the detainee's efforts to do so: R. v. Brydges (1990), 1990 123 (SCC), 53 C.C.C. (3d) 330 S.C.C. This obligation includes facilitating contact with counsel of choice where a request has been made to speak to a specific counsel. This is so whether the person has counsel's number available or not. It also includes permitting a phone call to a friend or relative to obtain the name of counsel of choice.

[26] This is not to say that a detainee is always entitled to make one or a series of calls to friends or relatives. The determination must be made on a case by case basis. No doubt there will be rare cases where a call to a friend or relative in private could jeopardize an ongoing investigation. For example, if the detainee has accomplices who had not been arrested, or if persons or property could be placed in jeopardy by permitting a call to someone other than a lawyer, a delay might be justified. That is not the case here.

[49] Glenfield asked to call his mother in order for her to retain a lawyer for him. The police initially refused this request. However they soon realized that they needed to relay this request to his mother. Foster at about 11:00 p.m. put in a call to Mrs. Glenfield and told her that her son needed a lawyer. He must have impressed upon her the seriousness of the situation. She was watching the news when he called. She immediately went to work although it was late in the evening in attempting successfully after about 50 minutes in obtaining an experienced criminal defence lawyer in the person of Mr. Bruce Ritter to provide immediate advice to her son.

[50] In R. v. Tremblay 1987 28 (SCC), [1987] 2 S.C.R. 435 (affirming [1995] O.J. No. 1865) is the foundation case for the proposition that the police in the context of an over 80 case in their implementation duty under s. 10(b) must permit an accused to contact a third party for the purpose of assisting him in retaining counsel, that they must wait a reasonable time to permit him to do this before proceeding with their investigation by questioning him or asking him to provide breath samples and that he must show reasonable diligence in exercising his right to counsel. The Supreme Court of Canada in the judgment of Justice Lamer (as he then was) found that the police did violate the accused's right to counsel by not waiting a sufficient amount of time for counsel for the accused retained by his wife to call the police station before having the accused provide breath samples. Nevertheless Justice Lamer held that the breath tests were properly admissible under s. 24(2) because of the accused's lack of diligence in retaining counsel. The case for the crown relied upon the results of the breath tests. The trial court held that the tests should be admitted, the District Court judge held that they should have been excluded, the Ontario Court of Appeal held that the breath tests should have been admitted and the Supreme Court of Canada held that the breath tests should have been admitted.

Justice Lamer stated the following:

[7] In this case the accused was promptly informed of his right to counsel, asked for a lawyer, was given a phone and placed a call to his wife. It appears, though the evidence on this point is not all that clear, that she was to call a lawyer for him. Right after that call, the police officers requested that the accused give his first sample of breath, a request he complied with. When that request was made, there remained ample time to comply with the requirements set down in the Criminal Code as regards the time limits for the taking of breath samples; there was thus no urgency to proceed, and to do so right after his first call was what, in my opinion, triggered the violation of this accused's rights.

[8] From the moment the accused was intercepted on the road to the moment he was asked to give the first sample of his breath his behaviour was violent, vulgar, and obnoxious. A reading of the record and the findings of fact below satisfy me that, while the police, following the request for counsel, did not, as they must, afford the accused a reasonable opportunity to contact a lawyer through his wife before calling upon him to give a breath sample, their haste in the matter was provoked by the accused's behaviour. Indeed, throughout this encounter with the police, the accused, as was found by the trial judge as a matter of fact, "was deliberately attempting to make the investigation difficult" and "was actively obstructing it". As testified to by a police officer, it appeared to the police that the accused was stalling when he was given the phone to contact a lawyer.

[9] Generally speaking, if a detainee is not being reasonably diligent in the exercise of his rights, the correlative duties set out in this Court's decision in R. v. Manninen, 1987 67 (SCC), [1987] 1 S.C.R. 1233, imposed on the police in a situation where a detainee has requested the assistance of counsel are suspended and are not a bar to their continuing their investigation and calling upon him to give a sample of his breath. While this is not the case here, the accused's conduct was, to some degree, misleading in that regard. While the police's hastiness does not change the fact that the detainee's right to counsel was violated, the reasons therefor make it understandable and are relevant when one addresses the s. 24(2) issue. In my view the admission of the evidence obtained would not, having regard to all of the circumstances, bring the administration of justice into disrepute.

[10] For these reasons, I would dismiss the appeal.

[51] The conduct of the accused which caused the Ontario Court of Appeal and the Supreme Court of Canada to admit the breath tests into evidence sounds remarkably similar to the conduct of Glenfield in this case. Further details of that conduct are provided by District Court Judge Cusson as follows:

[11] In this case there is no question that the accused initially joked about his being stopped by police and did not take things too seriously until the arresting officer called for a tow-truck. The accused immediately indicated that he wanted to call his lawyer.

[12] As well within minutes of the accused reaching the detachment office, he was on the phone to his wife asking her to call back once she had contacted a lawyer. From the time the accused realized that the matter was not a joking one, he became somewhat obnoxious. He used abusive language towards one officer, indicated to another that he would be violent if the handcuffs he was wearing were removed, and called out numbers in an apparent attempt to confuse radio communications between the arresting officer and dispatch. But none of this detracts from the accused's fundamental rights guaranteed by the Charter.

[52] In Hunter v. Southin Inc. 1984 33 (SCC), 1984 2 S.C.R. 145;1984 33 the Supreme Court of Canada in the judgment of Justice Dickson (as he then was) stated the following:

[19] I begin with the obvious. The Canadian Charter of Rights and Freedoms is a purposive document. Its purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for governmental action.

[53] Tremblay and Hunter are cases decided by the Supreme Court of Canada soon after the Charter was passed. The jurisprudence in interpreting the Charter has progressed greatly since then. The Supreme Court of Canada made it clear from the outset that the purpose of the Charter is to protect rights. The Charter must not be trivialized. It must not be used to protect self-indulgent behavior meant to obstruct legitimate law enforcement. I take this to be the message intended to be sent by Tremblay.

[54] As I will explain later Glenfield demonstrated that he was not really interested in contacting a lawyer to get advice on what he should do. What he was doing was obstructing and delaying.

(iv) Duty Counsel Is Not An Adequate Substitute For Private Counsel: Panigas and Soomal

[55] In R. v. Panigas, 2014 ONCJ 797, [2014] O.J. No. 1244 a police officer stopped an accused in a RIDE program while he was driving his motor vehicle. The officer smelled alcohol on his breath. The accused participated in the roadside test which he failed. The officer then made a formal breath demand that he provide a sample of his breath. He advised him of his right to counsel and the availability of duty counsel through a 1-800 number. The accused gave the officer the name of a man whom he thought was a lawyer. It later was determined that he was a paralegal. As in the Region of Waterloo it is the practice of the Toronto police not to give an accused person access to a phone to contact counsel but for the police to do this. The officer was unable to contact the person whose name the accused gave him. He then contacted duty counsel to whom the accused spoke. The accused then took the breath tests which he failed. Justice Horkins found that the police had not satisfied their implementation duties to put the accused in touch with counsel of his choice pursuant to s. 10(b) of the Charter. He sought further submissions from counsel as to whether the results of the breath tests should be excluded from evidence pursuant to s. 24(2) of the Charter. He stated the following:

[16] In a jurisdiction, such as Toronto, where there is a sophisticated Legal Aid duty counsel system in place an accused will be expected to resort to that service when counsel of choice is not reasonably available. However, it is absolutely wrong for the police to stream suspects to duty counsel without diligently facilitating every opportunity to access private counsel of choice.

[36] The evidence in this application is that the police in this jurisdiction have, in fact, structured the process in a way that they take full control and responsibility for making efforts to contact counsel for the accused. The accused is not given any means of pursuing contact with counsel on their own. The submission that this protocol is flawed is illustrated with case law from other jurisdictions, where the standard practice is to facilitate access to counsel by putting the task into the hands of the detainee to pursue contact with private counsel directly and on their own.

[42] I conclude that PC Acorn's efforts were honest but inadequate. Negligent is far too harsh a characterization because that would connote that the officer was entirely at fault. The greater fault in this case lies with a system, or protocol that has become institutionalized in this jurisdiction. This system puts the obligation to facilitate access to counsel of choice on the shoulders of the frontline officer, but fails to provide him with the proper facilities or resources to fulfill that heavy responsibility.

[52] When the police, as an institution, decide to take control of the accused's means of accessing counsel of choice, they also assume the obligation to pursue that constitutional right with all the same effort and diligence that the accused himself would apply. That did not occur in this case.

[58] Channeling an accused away from contacting outside counsel and creating the misleading impression that "it's duty counsel or nothing," is a gross violation of the rights of an accused who is being held incommunicado. (see the decision of Justice Stribopoulos in R. v. Soomal, 2014 ONCJ 220 to the same effect)

(v) Conclusion On Denial Of Right To Counsel Of Choice

[56] Mr. Burstein submits that the police denied Glenfiled’s right to counsel of choice guaranteed by s. 10(b) of the Charter by failing in their implementation duties in many ways. In summary these ways are as follows:

1. By not permitting Glenfieild the use of a telephone notwithstanding their many promises to do so.

2. By not permitting him to contact his mother for the purpose of her getting a lawyer for him.

3. By not waiting a reasonable time after Mrs. Glenfield advised the police that she had found a lawyer for him who would be calling the police station.

4. By “channelling” him to duty counsel.

5. By not telling Glenfield that his mother had called the police station and said that she had retained a lawyer for him who would soon be calling the police station.

6. By not waiting a reasonable time after Mrs. Glenfield called to say that she had found a lawyer for Glenfield who would be calling the police station.

7. By not permitting Glenfield to speak with Mr. Ritter when Glenfield was in the breath room.

[57] With respect I disagree. Glenfield knew from the moment that he exited his vehicle after he had struck the Huber vehicle that he was in serious trouble. He expressed an intention to commit suicide if Jeremy Huber died. Later at the police station he stated that “I have blood on my fucking hands”

[58] The accident took place at 9:12 p.m. As I noted in my recitation of the facts Glenfield’s attitude quickly changed from one of guilt and remorse to one of self-preservation. At 9:35 p.m. Foster made a demand on Glenfield at the roadside that he provide a sample of his breath. On 3 occasions – twice blowing out the side of his mouth and a 3rd time sucking on the breath tube – it would appear that Glenfield was evading providing a breath sample. He only provided a proper sample on the 4th time of placing the breath tube in his mouth after Foster had warned him that he would be charged with failing to provide a breath sample if he continued to be evasive.

[59] At 9:42 a.m., some ½ hour after the accident in response to Foster’s question of whether he wanted to speak to a lawyer, after Foster had arrested him on a charge of “over 80” and had advised him of his right to do so, he stated that he did. When Foster asked him who he wanted to contact he said that he would think about that. He said that it was not as if he had a lawyer in place. This was inaccurate. As he said at the police station he did have a “residential” lawyer. This is not surprising. He was the sales manager of a car dealership. When the accident happened he was on his way home from a meeting with a client in which they were discussing his buying a new vehicle from the dealership. They were having difficulty arriving at an agreement on the amount of the credit that the client would get for a motorcycle as a trade in on the vehicle that he wished to purchase. Clearly he was very close to his mother who ran a Recreational Vehicle Camping Resort. Involvement in these business activities would naturally lead to contact with residential lawyers.

[60] It may be that his residential lawyer could have provided him with some advice on what he should do being in custody on an a charge of impaired driving and being asked to provide a sample of his breath – namely, provide the sample and do not make any statements to the police or participate in any sobriety testing. If the residential lawyer felt that he was not competent to provide this advice he would be very likely able to recommend someone who could. Residential lawyers often practice with criminal lawyers either in the same firm or in a space sharing arrangement. This is because their practises complement each other. Glenfield never gave the police the name of his residential lawyer or asked that they contact the lawyer on his behalf.

[61] Glenfield did suffer an ankle injury but it was greatly overblown. He himself said to the paramedics when they were examining his ankle that it was “no biggy”. When they were discussing with him whether he should go to the hospital he flirted with them and said in reference to one of the female paramedics that “I think she’s kinda sweet”. In my view Glenfield’s interaction with the paramedics and his ambivalence as to whether he wanted them to take him to the hospital was a delay tactic on Foster’s part.

[62] Glenfield called Foster an idiot and a dumb fuck. He told him that he hated him and that he should fuck himself sideways. He told him to fuck off. When the police were leading him back into the interview room he said “This is fucking great times eh, great times”. He told Ogram that he was a fucking liar. After he came out of the breath room Foster told him that John Ritter who is a lawyer was on the phone and wanted to speak to him. Glenfield at least at first did not seem interested in talking to Mr. Ritter. Foster almost has to plead with him to speak to Mr. Ritter before Glenfield agrees. A dialogue took place as follows :

Q. Okay, your mom called back. She got a hold of John Ritter, who’s a lawyer. Do you want to speak to him?

A. What do you think? Do you think I want to speak to you?

Q. No, probably not.

A. Go fuck yourself, sideways, really. I hate you. Foster, get the fuck out of here.

Q. Okay.

A. I (unintelligible) your house.

Q. Please, just tell me, do you want to speak to John Ritter or not?

A. Of course.

Q. Of course, okay. No problem.

[63] Glenfield was rude, profane, insulting, aggressive, flippant and angry in his exchanges with the police at the police station. I agree with Mr. Russell that he was not at least intimidated by them. A computer search of the word “fuck” in the passages from the transcript of the proceedings in the cell block shows that Glenfield used this word or derivatives of it 55 times in his interaction with the police in the cell block area of the police station. With minor exceptions the police were at all times calm, professional and appropriate.

[64] When Foster was in the cell block area of the police station – first at the booking desk, then in the interview room, then outside in the hallway, back in the interview room and then in the breath room – he frequently asked to speak to his mother. Sometimes he asked to speak to his mother in the context of her getting a lawyer for him. At other times it seems that he simply wanted to speak with her. Glenfield said that he did not deal with lawyers and that his mother was his lawyer. He also asked to speak to his father and his girlfriend. The police made it very clear that they were not going to give him access to a phone to speak to anyone and in particular his mother – rightly in my view. This was not a social occasion. They were investigating a very serious criminal offence.

[65] If Glenfield had cooperated with the police, given them the name of his residential lawyer and asked to be put in touch with that lawyer he could well have obtained the advice that he needed from that lawyer or from a lawyer to whom he could have referred him. Because of the late hour if this was unsuccessful he could have contacted duty counsel. Because of the frequency that duty counsel will be contacted late at night to advise detainees under investigation for drinking and driving offences they can be expected to be very competent at giving that advice. If an accused does not wish to contact duty counsel he is obliged to use “reasonable diligence” in contacting another lawyer. The police are obliged to assist him in doing this. The police are not required to hold off in conducting their investigation indefinitely and have a duty to proceed with their investigation where it is urgent that they do so. There was urgency here in that alcohol was disappearing from Glenfield’s body.

[66] The police should probably, in the execution of their police duties, have taken Glenfield into the breath room well before 12:15 a.m. when they did so. The accident took place at 9:12 p.m. There is a presumption in the Criminal Code that the amount of alcohol in an accused’s body that is revealed by breath tests is the same as it was when he was driving his motor vehicle if at least one of two breath tests is taken within two hours of when he was driving. They lost the two hour presumption at 11:12 p.m. Glenfield arrived at the police station at 10:23 p.m. Foster took him to the interview room at 10:43 p.m. When Glenfield was looking through the m’s in the Ontario lawyers’ directory and at least early in the dialogue in the interview room when he conceded that Andrew Spire was a paralegal and not a lawyer, it should have been obvious that Glenfield was not acting in good faith in saying that he wanted to speak to a lawyer. Shortly after the police took Glenfield into the interview room a dialogue took place as follows:

FOSTER: Who is, who is your other lawyer then?

A: He’s a residential lawyer so he might have to call someone else. Who do you think I have a fucking lawyer that deals with your shit?

FOSTER: No that’s what duty council’s for.

A: Get the fuck out of here man.

This is hardly the conduct and words of a person detained by the police being reasonably diligent in retaining a lawyer.

[67] Glenfield was obstructing the police and delaying throughout his interaction with the police from the moment that he failed the roadside breath test. He did so in order to waste enough time that the alcohol would disappear from his system. It might be argued how could Glenfield know that he would be asked to provide a further sample of his breath at the police station given that on the evidence that this had not happened to him before. He would know because he was told at the roadside by Cst. Foster at which time he gave an inappropriate response. The evidence of Cst. Foster is as follows:

I demand that you provide samples of your breath which in the opinion of a qualified technician is suitable to enable an analysis to be made in order to determine the concentration, if any, of alcohol in your blood and that you accompany me for the purpose of enabling these samples to be taken. I then asked do you understand. Mr. Glenfield responded, yeah, I think this is great. (October7 transcript p. 98-99)

[68] Glenfield said to Foster at the scene, in answer to Foster’s question as to what lawyer that he would like to talk to, that he would “think about that”. What he thought about from that point forward was how he could use the pretext that he wanted to speak to a lawyer to delay the proceedings long enough that the alcohol would disappear from his system. The police told him repeatedly of his right to retain and instruct a lawyer. Clearly the lawyer came first and then the breath tests. The last thing that Glenfieild wanted was to contact a lawyer be it a private lawyer or duty counsel. That would have the effect of accelerating the process towards his being asked to provide a sample of his breath. This he wanted to avoid as long as possible. Mr. Russell submits that the police were acting in good faith, that Glenfield was not and that the police “fell for it”. I agree with this submission. This is exactly what happened. Genfield was putting on a show. As he himself said he was having a “great time”.

[69] When advised of his right to counsel, Glenfield did not exercise reasonable diligence in obtaining counsel. He has not demonstrated that the police violated his right to counsel and hence there is no need to do an analysis as to whether evidence should be excluded under s. 24(2) of the Charter. The audio-video tapes and all of Glenfield’s actions and statements recorded on them and observed and recorded at the police station will be admitted into evidence.

3. Admissibility of Statements Made To Paramedic Speers

[70] There can be no question that Glenfield knew that paramedic Speers was not a person in authority. Earlier at the police station when paramedics Williams and Haack were interacting with Glenfield and the police a dialogue took place as follows:

Paramedic: Jeremy we’re concerned about your medical health okay?

Glenfield: I know. I am too. Im just so upset with him right now.

Paramedic: Yeah but don’t let that affect your working relationship with us right?

Glenfield: I won’t

[71] Clearly Glenfield knew that the paramedics were medical people and not the police. Foster was in the ambulance when this conversation took place. Foster asked no questions of Glenfield. The statement is admissible as a voluntary relevant statement made by an accused to a civilian.

E. Conclusion

[72] I have found no violations by the police of the Charter rights of Glenfield’s rights. His application is dismissed.

P. B. Hambly, J.

Released: March 12, 2015

Exhibit A

THURSDAY, DECEMBER 22, 2011

JEREMY GLENFIELD:

INTERVIEW CONDUCTED BY CONSTABLE J FOSTER:

(22:51:25)

CONSTABLE FOSTER: Q. Okay Jeremy, I’m gonna read you something else, ‘kay? So, in addition to the over 80, you’re also going be under arrest for impaired operation. It’s my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a Legal Aid lawyer. If you’re charged with an offence, you may apply to the Ontario Legal Aid Plan for all legal assistance. 1-800-265-0451 is a toll free number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice. Do you understand that? It’s an additional charge. Do you understand that?

A. No, can I make a phone call now?

Q. Do you want to speak to duty counsel?

A. No, I wanna make a phone call.

Q. No, I will call a lawyer on your behalf...

A. I don’t give a shit...

Q. ...okay?

A. ...about what you want to do.

Q. It’s not what I want to do, it’s what’s going to happen. You tell me which lawyer, okay? You’ve already taken a look through a lawyer’s directory.

A. I don’t just call lawyers and look for – through a fucking directory. You fucking kidding me?

Q. Well you gave me a name that...

A. Fuck off.

Q. ...wasn’t in there, so....

A. Whatever. Do what you want man. I ain’t....

Q. Tell me the name....

A. I ain’t fucking dealing dealing with your shit.

Q. Just tell me the name of a lawyer...

A. No.

Q. ...you want to call.

A. No. Andrew fucking Spiral(ph), he might be not be a lawyer in your case, I’m gonna deal with my mother, she can call my other lawyer if you want, okay? But she’s gonna call him, I don’t call him.

Q. Who is....

A. Got it?

Q. Who is your other lawyer then?

A. Well he’s a – a residential lawyer, so he might have to call someone else. Who do you think I have a fucking lawyer that deals with your shit?

Q. No, that’s what duty counsel's for.

A. Get the fuck out of here, man.

Q. So, that would be a criminal defence lawyer that you could speak to.

A. You wanna try and charge me with something else, fine. I’m just trying – trying to tell you right now that I need proper legal representation ‘cause I blundered my fucking hands, I can’t move my fucking ankle and all you keep fucking carin’ about...

Q. I asked you if you wanted to see a paramedic....

A. ...is what you want to push.

Q. I asked you if you wanted to see a paramedic already, you said no...

A. Whatta you think man...

Q. ...they were already at the accident...

A. ...are you that dumb?

Q. ...at the accident....

A. Are you that fucking dumb?

Q. At the accident, you spoke with...

A. You’re dumb.

Q. ...a paramedic, okay? So, you’ve already spoken to a paramedic at the scene. You were asked here again if you wanted to speak to a paramedic. We can have...

A. Paramedic.

Q. ...paramedics come here and look you out.

A. Oh, you – would you stop putting that fucking pen underneath your chin? Are you that fucking dumb? Of course I want to see a paramedic. Of course I want to talk to a legal representative. Are you fucking kidding me? You’re a fucking retard.

Q. Sit down.

A. You’re that fucking dumb.

Q. Then just tell me a lawyer and I will call him for you. And if you want to speak to a paramedic now, then I will get a paramedic for you.

UNIDENTIFIED FEMALE OFFICER: And you better bring it down there, sir.

Q. You’re also going to be charged with impaired operation, do you wish to say anything in answer to the charge? You’re not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you understand that?

A. You already said it.

Q. I know, this is the second time.

A. Oh, my God.

Q. You just tell me who to call and I will call.

A. I just told you....

Q. You wanted – you want, I will call paramedics for you right now.

A. Just call...

Q. That’s what you want?

A. ...call my mom and she’ll....

Q. I’m not calling your mom, we’ve gone over this I don’t know how many times.

A. Why not?

Q. Because.

A. Why?

Q. It’s a lawyer. You want to speak...

A. She’s my lawyer.

Q. ...with a lawyer. She’s not a lawyer.

A. She is.

Q. What’s her name?

A. Donna Glenfield.

Q. Okay, so she’ll be in the directory, right?

A. No, she’s not in your little orange book man, sorry.

Q. Okay, all right, do you want a paramedic?

A. Well, you know, paramedic not – might not be so bad to look at my fucking ankle and shit, eh?

Q. Okay.

A. Whatta you think?

Q. I think you turned one down at the accident.

A. Whatta you think?

Q. Okay.

A. You’re an idiot.

(22:55:49)

...Constable Russell exits interview room

(22:57:28)

A. Dumb fucks. Oh my lord, thunderin' Jesus by.

(22:57:40)

(22:57:47)

Q. Okay, called the paramedics for you, so your mom, I’ll give her a call and ask her to call a lawyer for ya.

A. 519-662-1475.

Q. 519-662...

A. 1475.

Q. ...1475. Donna Glenfield, okay. Now if she’s not around?

A. I need to give you my cell phone number for my girlfriend.

Q. Well your cell phone's not here. I don’t know where your cell phone is. Somewhere in the truck, all right? So, does she know someone to call?

A. Does she know someone to call?

Q. Yeah, your mom knows somebody to call.

A. Yeah.

Q. Okay, and if I can’t get a hold of her?

A. Huh?

Q. Like do you know if she’s in town, she’s at home, or....

A. She’s definitely in town. You can....

Q. Okay.

A. You can check Holiday Beach Resort man.

Q. Okay, and no problem. If I can’t get in touch with her, is there someone else?

A. Or there’s Tom Glenfield.

Q. Okay, do they live together? Like I would assume that they’d be out together probably.

A. Yeah – yeah, no, they’re not out together, they’re at home.

Q. Okay, then I’ll give ‘em a call, okay?

(22:58:52)

...Constable Russell exits interview room

(22:59:22)

A. Fuck me.

(22:59:23)

(23:01:07)

A. Fuck.

(23:01:08)

(23:13:26)

Q. Hey Jim, paramedics are here.

PARAMEDIC 1: Hey.

A. Hey.

PARAMEDIC 1: What’s going on?

A. I don’t know; foot hurts.

PARAMEDIC 1: Your foot hurts.

A. Knees hurt.

PARAMEDIC 1: ‘Kay, you been in an accident before?

A. No.

PARAMEDIC 1: No? It’s pretty typical after an accident, stiff bones....

A. Fair enough.

PARAMEDIC 1: Yep, can you pull your pant legs up?

A. Yep.

PARAMEDIC 1: Left one? Right one?

A. Knees – knees are bruised a little bit, feel kinda okay...

PARAMEDIC 1: Little bit.

A. ...just maybe sprained I think.

PARAMEDIC 1: Wiggle your toes. Good and what – is it pain in both ankles or just the one?

A. Just the what?

PARAMEDIC 1: Pain in both ankles or just the one?

A. No, just the one, right one.

PARAMEDIC 1: Good, good. You guess?

A. Yeah.

PARAMEDIC 1: Okay, all right, I’ll take your sock off and have a look. The pain is specifically on the outside there?

A. Specifically.

PARAMEDIC 1: Okay, okay, can you move your foot? Flex your foot up and down. Okay, all right. All right, you can relax, put your foot down. I don’t see any swelling on your knees. You have a little bit of swelling on the outside of your ankle there. But you got good movement on it. Have you been up and walking on that? Yeah? Any medical history?

A. Not really.

PARAMEDIC 1: No, you on any medications?

A. Fish oil, this that and I dunno.

PARAMEDIC 1: Any prescription medications?

A. Not really.

PARAMEDIC 1: Yes or no.

A. No, I don’t think so.

PARAMEDIC 1: You don’t think you’re on any prescription medications?

A. No – no prescription that my doctor's done, no.

PARAMEDIC 1: Okay.

A. No.

PARAMEDIC 1: All right, okay. Well, it looks like your ankle might need a - a bit of an ice pack. You know, could be a sprain, could be a fracture...

A. It could be a few things eh, I know.

PARAMEDIC 1: Could be, yeah.

UNIDENTIFIED MALE OFFICER: I’ll just check that inventory, we have had some – one of the ice packs, so I’ll just go have a look.

PARAMEDIC 1: Oh, okay, sure.

A. It’s no biggy.

PARAMEDIC 1: Okay.

A. Thank you.

PARAMEDIC 1: Any allergies to anything?

A. Demerol, any kind of trees, pollen.

PARAMEDIC 1: Okay.

A. Anything like that.

PARAMEDIC 1: Demerol’s the only medication?

A. That’s the one I’m allergic to when they fed it to me...

PARAMEDIC 1: Got it.

A. ...in the hospital.

PARAMEDIC 1: Okay. So, what would you like to do this evening? Are you – do you feel you need to go to an emergency room?

A. Um, well it hurts, quite a bit.

PARAMEDIC 2: Okay.

PARAMEDIC 1: Thank you. I usually just stomp on these. There you go. Okay, sorry about that.

UNIDENTIFIED MALE OFFICER: That’s all right.

PARAMEDIC 1: Different worlds.

UNIDENTIFIED MALE OFFICER: I just kinda help myself.

PARAMEDIC 1: Yeah...

UNIDENTIFIED MALE OFFICER: It’s a....

PARAMEDIC 1: ...yeah – yeah, I get it.

UNIDENTIFIED MALE OFFICER: Now, is this one we can strap him up with, or....

PARAMEDIC 2: Yeah, tape – tape works fine. Tape where we can put some cling on it, just to hold it there.

UNIDENTIFIED MALE SPEAKER: Yeah, that’d be great.

PARAMEDIC 2: Sure, okay.

UNIDENTIFIED MALE SPEAKER: I don’t think he wants to sit in that position all night.

PARAMEDIC 1: If you can, you can elevate it...

UNIDENTIED MALE OFFICER: Yeah.

PARAMEDIC 1: ...I would try and maybe get it up a little bit.

A. Is this a joke?

PARAMEDIC 1: What?

A. Whatta ya want me to do?

PARAMEDIC 1: You can – I’m just saying with the swelling in your foot, like if you were to sit on the floor and elevate your foot...

A. No.

PARAMEDIC 1: ...or elevate your foot kinda higher than where it is, that will reduce swelling. Does that – I’m not sure – I’m not sure what you’re asking me.

UNIDENTIED MALE OFFICER: She’s just going to....

A. What, you want me to lean against the wall and kinda lean my....

UNIDENTIED MALE OFFICER: No, she’s just giving you advice. We’re just getting something to adhere it, so you don’t have to lean over. Okay, so we’re just gonna get it so you can put it there, you can sit up.

A. That’s great, some kind of care would be great.

UNIDENTIED MALE OFFICER: I’m not into staring contests buddy...

A. I’m not either, really.

UNIDENTIED MALE OFFICER: ...so – so just don’t try and stare me down because...

A. Really, I like....

UNIDENTIED MALE OFFICER: ...I don’t do it.

A. I’m not either.

CONSTABLE FOSTER: Q. Called your mom for ya.

A. And?

Q. She has no idea about a lawyer for ya, okay?

A. Yeah.

Q. So, she’s gonna make some phone calls and call back.

A. I bet.

Q. Okay?

A. Yeah.

Q. I have some more questions for ya, just to fill out this form.

PARAMEDIC 2: Just waiting...

Q. So....

PARAMEDIC 2: ...she’s gone to get some cling so that we can secure that...

UNIDENTIED MALE OFFICER: From the - from the vehicle...

PARAMEDIC 2: ...there.

UNIDENTIED MALE OFFICER: ...or from the....

PARAMEDIC 2: I’m not sure.

UNIDENTIED MALE OFFICER: Oh just - ‘cause if she needs to go out....

PARAMEDIC 2: Sure. Oh, nope, right there.

PARAMEDIC 1: Okay, stick your leg up here. Yep.

A. Thank you.

PARAMEDIC 1: Allow me.

PARAMEDIC 2: Can you cut down the middle?

PARAMEDIC 1: Sure.

PARAMEDIC 2: When it gets really cold, take it off, okay?

A. Mm-hmm, thank you.

PARAMEDIC 2: No worries. Most likely it will just cool down before you need to take it off anyways.

PARAMEDIC 1: Okay, what is your name?

A. Jeremy.

PARAMEDIC 1: Last name?

A. Glenfield.

PARAMEDIC 1: Sorry?

A. G-L-E-N-F-I-E-L-D.

PARAMEDIC 1: Thank you, and - and your home address?

A. 1652 Puddicombe Road, P-U-D-D-I-C-O-M-B-E.

(23:19:52)

PARAMEDIC 1: Thank you. And that is Kitchener or what?

A. New Hamburg.

PARAMEDIC 1: New Hamburg. And your date of birth.

A. October 13th, 1978.

PARAMEDIC 1: Okay. So this form just says that we were here, that we’ve had a look at you. We discussed about your ankle...

A. Thank you.

PARAMEDIC 1: ...but if it continues to swell (unintelligible)...

A. Yeah, for sure.

PARAMEDIC 2: ...you have to follow up with your family physician, an x-ray might be a good idea.

A. Thanks.

PARAMEDIC 1: ‘Kay?

A. Thanks for your help.

PARAMEDIC 1: You’re welcome. Just need a signature from you. This line here, is that....

PARAMEDIC 2: No worries.

PARAMEDIC 1: Just sign here.

A. Okay, give me a second.

PARAMEDIC 1: Pardon me?

A. Give me a second.

PARAMEDIC 1: Give you a second?

A. Yeah.

PARAMEDIC 1: Okay, why is that?

A. Well, because I just read that.

PARAMEDIC 1: Yeah, and....

A. And once I talk to a couple of people, maybe it'll make my mind feel rest assured with how I’m being dealt with.

PARAMEDIC 2: Would you like to come to the hospital?

A. Um, I’m sure that wouldn’t be a bad thing.

PARAMEDIC 2: Okay, we’ll...

A. But I’d rather...

PARAMEDIC 2: ...take you out then.

A. ...talk to somebody first, but nobody wants to let me talk to anyone.

PARAMEDIC 2: We can take you up to the hospital, if you’d like.

A. Yeah.

PARAMEDIC 2: That’s why we’re here, right?

A. Whatta you think?

PARAMEDIC 2: But....

A. Can I talk to my mom? Am I allowed to do that?

Q. I told you that.

A. Yeah, I am?

Q. No.

A. Oh, no I’m not.

PARAMEDIC 2: What’s your name, sorry?

PARAMEDIC 1: Jeremy.

PARAMEDIC 2: Jeremy, we....

A. Maybe I should make embroideries on here, eh?

PARAMEDIC 2: Jeremy, we’re concerned about your medical health, okay?

A. Yeah, I know, I am too...

PARAMEDIC 2: So....

A. ... and I’m just so upset with him right now.

PARAMEDIC 2: Yeah, but don’t – don’t let that affect your working relationship with us, right?

A. I won’t.

PARAMEDIC 2: Okay, so we really need to know if you’d like to come with us, because we are very busy tonight, based on the weather, right, so....

A. Well I’m not exactly in the best condition.

PARAMEDIC 2: Okay, if you want to come, we can take you.

A. I think if you move my ankle side to side and up and down, you could make a pretty good decision of that...

PARAMEDIC 2: Yeah, okay let’s....

A. ...yourself.

PARAMEDIC 2: ...let’s go then.

A. See, I didn’t have to do that, did I?

PARAMEDIC 2: It’s up to you.

A. I think you made that decision. I think she’s kinda sweet.

PARAMEDIC 2: Are you going to come with us?

A. I’d rather get better.

PARAMEDIC 2: Okay.

Q. All right, go on.

A. Oh, sorry.

Q. You’re under – you’re under arrest.

A. Oh, of course.

Q. If you’re going up to the hospital....

PARAMEDIC 2: You can get walking okay? Would you like the stretcher, is what I’m asking.

Q. It’s not the same as going up to the hospital any other time. You’re still under arrest.

A. Okay.

PARAMEDIC 2: Would you like to sit on the stretcher?

Q. Do you understand?

A. Am I allowed to sit on the stretcher?

Q. Yeah, you can sit on the stretcher.

A. You’re sure?

Q. Yep.

PARAMEDIC 1: What’s going on?

Q. He wants to go up to the hospital, so....

PARAMEDIC 2: Sir, if you’d like to sit on the stretcher, I need to know, so I can set up a bed for you, okay? Yeah.

A. Yeah, I guess so.

PARAMEDIC 2: Okay, we’ll do that for ya.

A. Thank you.

PARAMEDIC 2: No problem.

(23:23:53)

...Detective Russell escorts interviewee from interview room with paramedics.

(23:25:07)

UNIDENTIFIED MALE OFFICER: Gerry Russell....

PARAMEDIC 1: Thank you.

Q. Yep, Jeremy, who’s your lawyer?

A. Um, you know what, I’ve never had a lawyer...

Q. Okay - okay, (unintelligible).

A. Like I said, can I get a hold of my mother?

Q. I can....

A. (Unintelligible).

Q. And I don’t see a reason why you will offer right now, okay?

A. Oh, you don’t?

Q. No, okay, so we’re going to sort this out, okay? We’re going to stay here for a little bit and then we’ll....

A. You don’t know anything about...

Q. (Unintelligible).

A. You don’t even know any better.

Q. I’ve got a job to do.

A. Thanks.

Q. You’re welcome. Okay, so, do you have a lawyer you’d like to speak with before you go to the hospital....

A. (Unintelligible).

Q. ...so we have a – we have a phone in here.

A. Are you talking....

Q. No, I’m telling you the facts.

A. (unintelligible)I just need to talk to my mom.

Q. Jeremy, we’re way past that.

A. You’re way past that.

Q. I’m sorry....

A. Not me man, I’m fucking hurt, I just want to talk to my mom. Do you think I deal with lawyers? Do you have a lawyer? What the fuck is your lawyer’s name? So, exactly, we didn’t have a lawyer. Okay, if you want to talk to one, fuck you.

Q. Okay, because you can’t talk to mom, we’ve covered that.

A. There’s no answer here. Can I speak with my mother?

UNIDENTIFIED FEMALE SPEAKER: No, you cannot.

A. Can I speak with my father? Can I speak with my girlfriend?

UNIDENTIFIED FEMALE SPEAKER: Lawyer.

A. I mean....

UNIDENTIFIED FEMALE SPEAKER: Duty counsel's....

A. When I said Andrew Spirals, that didn’t – that didn’t – that didn’t do anything for you? That’s paralegal, not a lawyer, but....

Q. Okay, paralegal.

A. I don’t deal with lawyers.

Q. Okay, (unintelligible).

A. She said you couldn’t get a hold of my mom.

Q. Oh, we talked to your mom.

A. Oh, you did. (Unintelligible).

Q. She said I don’t, I don’t know a lawyer....

A. She said I don’t know a lawyer and I don’t have a lawyer.

Q. Right.

A. Very good. There’s no problem with that. So what she gonna do? (Unintelligible).

Q. She said you’re a big boy....

A. (Unintelligible). You’re a fucking liar. Very good, have a nice fucking day.

Q. I will.

(23:30:00)

Q. (Unintelligible). Right here. (Unintelligible).

(23:38:15)

Q. Jeremy?

A. Ow, fuck. Which way we going?

Q. Right, that’s where you came from, right?

A. Yeah.

Q. You remember that?

A. Yeah, common man, it’s not like I know my way around here like you do.

Q. You just walked out of here.

A. Funny, fun for you. Fun for you.

Q. Yep, it’s still me, yep, still me.

A. Fun for you. I’m glad you had fun with us. This is fucking great times eh, great times oh Graham (ph).

(23:39:19)

...Constable Foster exits interview room

(23:40:50)

A. Fuck.

(23:41:43)

A. Fuck.

(23:42:43)

A. Oh, fuck.

(23:43:33)

A. Fuck.

(23:45:01)

B. Oh, for fuck sakes.

(23:49:07)

CONSTABLE FOSTER: Q. Okay, Jeremy, I got some – something else to read to you, ‘kay? So, you’re being re-arrested for impaired operation causing bodily harm, for four counts, okay? And four counts of operating a motor vehicle with more than 80 milligrams of alcohol and 100 millilitres of blood causing bodily harm, ‘kay? It’s my duty to inform you that you still have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a Legal Aid lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for all legal assistance. 1-800-265-0451 is a toll free number that will now put you in contact with a Legal Aid duty counsel lawyer for free legal advice. Do you understand that?

A. Yeah, I saw you read it.

Q. ‘Kay, any – so, because it’s changed, you’re more than welcome to speak to a lawyer again.

A. Of course.

Q. If you want to speak to duty counsel again, no problem.

A. Did ya actually call my mom?

Q. Yeah, I did.

A. Did ya?

Q. Yeah, I did, yeah.

A. And what, now I’m gonna talk to a lawyer again.

Q. If you want to.

A. Of course. Think I wanna....

Q. Of course what?

A. All you’ve been is just negative with me.

Q. Would you like to speak....

A. Of course I do.

Q. Okay – ‘kay, so you’re going to be charged with impaired operation motor vehicle causing bodily harm, four times, four counts. Along with four counts of operating a motor vehicle with more than 80 milligrams of alcohol and millilitres of blood, causing bodily harm. Do you understand that? Oh sorry, do you wish to say anything in answer to that charge? You’re not obliged to say anything unless you wish to do so...

A. Is there anything...

Q. ...but whatever you say may be given as evidence.

A. ...is there anything that I can do?

Q. Do you understand that?

A. Is there anything I can do to disrupt that? No, right?

Q. Do you understand? Do you understand the – the caution?

A. Yeah.

Q. Yeah.

A. Can I talk to someone please?

Q. Duty counsel.

A. Oh, my mother, duty counsel, you let me talk to my mom?

Q. Lawyer. No...

A. No.

Q. ...how many times do got to go over this? No.

A. No – no, of course not.

Q. No, I called your mom for ya...

A. Sure you did.

Q. ...do you want to talk to duty counsel again?

A. Sure you did. Sure you did.

Q. I did.

A. I believe you.

Q. Okay, do you want to talk to duty counsel again?

A. Of course.

Q. Okay.

(23:52:05)

...Constable Foster exits interview room

(23:52:31)

A. Fucking stupid.

(23:54:14)

A. Fuck me.

FRIDAY, DECEMBER 23, 2011

(00:02:39)

A. Oh, fuck.

(00:06:11)

CONSTABLE FOSTER: Q. Well Jeremy, I got another four charges that I’ve been advised of now. So, in addition to all the other charges, there’s also four counts of operating a motor vehicle, dangerous driving. Okay, or dangerous operation of a motor vehicle, causing bodily harm.

A. That’s with the intent to kill, right?

Q. No.

A. Yeah, that’s what dangerous driving is, no?

Q. Okay, so...

A. Oh.

Q. ...again, it’s my duty to inform you...

A. Right, of course...

Q. ...that you have a right...

A. ...yep, thanks very much.

Q. ...to retain instruction from counsel without delay...

A. Yep, yep.

Q. ...you have the right to phone any lawyer you wish...

A. Yep, yep.

Q. ...you also have the right to free legal advice...

A. Yep, okay, so can I get a phone, I’ll dial the number.

Q. ...from a Legal Aid lawyer...

A. Yep.

Q. ...or to call you...

A. For sure.

Q. ...if you are charged with an offence...

A. Yep.

Q. ...you may apply to an Ontario Legal Aid Plan for all legal assistance...

A. Yep.

Q. ...1-800-265...

A. Can I dial the number?

Q. ... 0451 is toll free number...

A. Can I dial the number?

Q. ...that will now put you in contact with Legal Aid duty counsel for free legal aid advice.

A. Can I dial the number?

Q. Do you understand that?

A. Yep, 519-662-4798.

Q. ‘Kay, so do you understand?

A. I’d like dial a number, before I understand anything. You just keep...

Q. It’s not going to happen.

A. ...coming back in here...

Q. Yeah.

A. ...telling me what’s what, thanks very much.

Q. ‘Kay, so, duty counsel's already been called, so you want to speak to them, right? Okay, so you’re being charged with four counts...

A. I know.

Q. ...of dangerous operation of a motor vehicle causing bodily harm.

A. Four of them, yep.

Q. Yep, do you wish to say anything in answer to the charge, you’re not obliged to say anything unless you wish to do so. Whatever you...

A. Love to call someone though, you won’t let me call...

Q. ...whatever you say...

A. Yeah.

Q. ...may be given in evidence.

A. Yeah.

Q. Do you understand?

A. Just let me know when I can call someone, okay? I believe I’m - I have that right.

Q. This isn't the United States. ‘Kay?

A. Okay.

(00:08:48)

...Constable Foster exits interview room

(00:10:36)

UNIDENTIFIED MALE OFFICER: Duty counsel's on the phone. They’ve called back. They’re ready for ya. If you want to come out this way, I’ll take ya to the booth where you can talk to them.

(11:10:58)

...Unidentified Male Officer escorts the accused from interview room.

(00:29:39)

A. It’s no good.

CONSTABLE FOSTER: Q. It’s still cold.

A. No, it’s not.

Q. Okay.

A. Thank you.

Q. You’re welcome.

(00:29:52)

...Constable Foster exits interview room

(00:30:59)

A. Oh, fuck. Ow.

Q. Jeremy.

UNIDENTIFIED FEMALE OFFICER: Jeremy, I’m gonna call the ambulance again for you now, okay?

A. Thank you.

UNIDENTIFIED FEMALE OFFICER: All right.

Q. Do you want another ice pack?

A. I’d love one.

Q. Okay, your mom called back. She got a hold of John Ritter, who’s a lawyer. Do you want to speak to him?

A. What do you think? Do you think I want to speak to you?

Q. No, probably not.

A. Go fuck yourself, sideways, really. I hate you. Foster, get the fuck out of here.

Q. Okay.

A. I (unintelligible) your house.

Q. Please, just tell me, do you want to speak to John Ritter or not?

A. Of course.

Q. Of course, okay. No problem.

(00:31:56)

...Constable Foster exits interview room

(00:32:00)

A. What a smile, eh? Fuck.

(00:35:11)

A. Fuck me.

(00:36:17)

CONSTABLE FOSTER: Q. Jeremy, pretty sure he's going to call back, or John(ph) Ritter, counsel.

A. You’re still talking to me.

Q. Yeah, you wanted to speak to a lawyer. I’ll give you a hand.

A. Don’t even touch me.

Q. Okay.

A. I don’t want nothing from you buddy.

Q. Ice pack.

A. Yeah, I’ll take that.

Q. Okay.

(00:36:48)

...Detective Foster escorts the accused from interview room.

Exhibit B

FOSTER: Yeah

OGRAM: Just have a seat there for me. Okay we’re going to enter some information in this instrument here. Okay. Easier here when it’s a lot quieter than out there with the guys yelling right? Okay, so Jeremy, my names Adam, you’ve met me already okay i’m a breath technician. Okay before we go on i’ve got some stuff to read you okay? First is a secondary caution, okay? If you have spoken to any police officer or anyone with authority or if any such person has spoken to you in connection with this case, I want it clearly understood that I do not want it to influence you in making any statement. Do you understand that? Understand that you have to talk to me? Okay. Another thing i’m going to read you is a breath demand. Okay so I read to you I demand that you provide suitable samples of your breath into an approved instrument to enable, to enable an analysis to further be made in concentration if any, of alcohol in your blood and that you accompanied me for the purposes of these samples. Do you understand that? Okay i’m just asking you to provide a sample in this instrument. Okay, open this up okay? It’ll be a clean mouthpiece take that other for me okay. Put your lips, perfect. Just sit down. Sit down. It’s okay. Just going to grab another one. Okay you put your lips around there, just like you were. Purse your lips around it, blow straight through alright? You do that on the roadside, pretty straight forward right? Okay. So we understand what we’re asking of you? We don’t need to have enough pressure to blow a house down okay? When you provide a sample, this instrument’s going to make a tone. All the tone means is that you’re blowing with enough force. Okay? Any tone that’s it. Okay? And we’ll get it done. Okay just hang on for a second. Let you know it’s ready. Just takes a while to go through things that’s all.

A: No worries man. You don’t want to be here and I don’t want to be here.

OGRAM: That’s my job to be here.

A: Oh yeah it is your job. I heard about that.

OGRAM: Listen we’re not going to argue right? We’re here to get the job done right. Do you work at… Dodge? Not sure if it was a, if you were just taking it for your test driving it or what, it’s a loner or

A: No

OGRAM: How’d you do it?

A: General sales manager

OGRAM: Yup. Where’s that one?

A: Did you actually call my mom?

OGRAM: Yeah.

A: Are you serious?

OGRAM: Yup. He did. Yeah. You wanted us to, we called your mom. Right?

A: Well

OGRAM: You asked.

A: Just wondering. Where do you think she is?

OGRAM: I’m not sure where she is. I don’t know

A: Where do you think she is?

OGRAM: Probably at home.

A: Do you think so?

OGRAM: Well I don’t know. I didn’t talk to him Jeremy so I don’t

A: Oh you didn’t talk to her.

OGRAM: I just told you that officer there did.

FOSTER: I talked to her Jeremy. She was at home. Just take a sec

A: Yeah? And what? What she going to know?

FOSTER: I have no idea what she’s going to know.

A: You don’t know?

FOSTER: No

A: So you didn’t talk to her.

FOSTER: How would I know what she’s doing -

OGRAM: Okay Jeremy

A: We’ll talk

OGRAM: Yup

A: Liar. Why?

OGRAM: Okay Jeremy. Jeremy. Jeremy okay.

A: Okay

OGRAM: Ready?

A: Yes.

OGRAM: We’re ready to put 5 samples in. Just slow steady breaths okay constant.

A: Okay

OGRAM: That’s it. No you’re not blowing okay enough. Okay Jeremy you have to purse your lips around there okay? You did it before okay. You’ve heard the tone it just made right?

A: Yeah

OGRAM: That means you’re blowing with enough force. I need you to do that okay?

A: Yeah

OGRAM: So i’m asking you to

A: What’s wrong with that?

OGRAM: Okay I need you to provide a sample, it’s not enough.

A: I need 4.

OGRAM: Okay? So go ahead and blow until, okay until I tell you. Just take

A: What’s wrong?

OGRAM: Just go ahead. Just take a breath. Go. Okay. You’re not blowing into it.

A: I am blowing into it.

OGRAM: No you’re not. Okay? It’s about half an inch away from your mouth. So I need you to put your lips around that tip. Blow with a steady flow. Okay I don’t need enough to blow a house down. okay? I need it in your lips though. Okay?

A: Appreciate the last time.

OGRAM: Just put your lips on it first.

A: Seriously?

OGRAM: Yeah. Okay. You’re not blowing.

A: I am blowing.

OGRAM: Well yes you are. But you’re not blowing into the instrument.

A: Man

OGRAM: Okay? Jeremy, I need you to provide a sample. Are you going to provide a sample?

A: You know what? You know how much I feel like listening to you right now?

OGRAM: Okay. You don’t have a choice. Okay.

A: And i’m trying to apply

OGRAM: Yup. Somewhat. Okay? Because you’re not putting that in your mouth. Like i’ve instructed you to do.

A: Come on I am.

OGRAM: No you’re not.

A: I am

OGRAM: Okay. Do it again and show me.

A: Do you know how dry my mouth is right now?

OGRAM: You’ve dranken a bunch of water all night.

A: A bunch?

OGRAM: Okay Jeremy.

A: A bunch?

OGRAM: Jeremy what I have here is a failure to provide a sample

A: I know how you guys work. You come into my room so many times

OGRAM: Okay

A: And read me so many things like come on.

OGRAM: Yup. Okay listen to me. This is for failure to provide breath samples

A: No. Oh my God again.

OGRAM: Okay?

A: Yup.

OGRAM: It carries the same penalties okay? You’re required by law to provide a sample.

A: Seriously?

OGRAM: Yes. Okay so

A: I am?

OGRAM: You’re not.

A: I’m trying. Do you want me to do it again?

OGRAM: Yes I do. Put your lips on and blow. No. You’re not blowing. You’ve got it halfway in your mouth and you’re just blowing around. Okay?

A: No I’m blowing

OGRAM: I need you to put your lips around

A: You’re beeping

OGRAM: Yeah you can.

A: That means

OGRAM: It’s not enough.

A: Blowing

OGRAM: It’s not enough.

A: I can hear it.

OGRAM: Okay exactly.

A: Oh, why?

OGRAM: So I understand, okay?

A: I know.

OGRAM: I’m the breath technician okay? You’re not blowing. Okay? I need you to put your lips around there, seal your lips and then exhale. It’s very simple.

A: Didn’t I already do that?

OGRAM: No you didn’t

A: Four times?

OGRAM: No. Do you want to do it again?

A: If you want me to do it again

OGRAM: Okay

A: I’ll do it again

OGRAM: I want you to put your lips around there. Seal your lips. Blow. Okay you just stopped. So

A: I just stopped? But

OGRAM: Okay

A: Write it down for me

OGRAM: It is now 12:24

A: I didn’t stop

OGRAM: This is an approved instrument and I demand that you provide samples of your breath which in the opinion of a qualified technician, are suitable to enable an analysis to be made in order to determine the concentration if any, of alcohol in your blood. Please provide a sample of your breath now. Okay. I need you to put the thing in your lips

A: I just did

OGRAM: And blow.

A: 5 times. 6 times.

OGRAM: Yup

A: Want me to do it again?

OGRAM: Okay what I want okay is to put your lips around there, seal your lips. Okay because there’s a lot of air coming out

A: You know what? Do you how much

OGRAM: I can feel it on my hand. Okay so you’re not blowing air into the mouthpiece. Okay? So then you stop okay?

A: My mouth is so dry right now.

OGRAM: It doesn’t have to be dry, you can still blow. You’re breathing.

A: You think this is a game, so you think this is a fucking game.

OGRAM: Yup

A: This ain’t no fucking game man.

OGRAM: Okay. Okay. It’s 12:25 Do you

A: I’m trying to comply

OGRAM: Okay Jeremy, do you understand that you’re failing to provide samples of your breath. I demand

A: I’m trying to comply.

OGRAM: Is a criminal offence and you will be charged with failure to provide breath samples.

A: I’ve been charged

OGRAM: Do you understand that?

A: I am trying to comply. Again?

OGRAM: You haven’t been complying. Okay.

A: It’s not like i’m breathing in your hand man.

OGRAM: Yes, I can feel it on my knuckles Jeremy. Okay it’s coming out you’re, you’re doing that.

A: I’m not

OGRAM: Okay I can feel it on my hand.

A: I’m seriously not doing that.

OGRAM: You are. You are doing that.

A: No i’m not.

OGRAM: Okay? Okay I again, am demanding that you provide samples of your breath directly into this approved instrument.

A: No problem man. Again.

OGRAM: It is a problem.

A: No you’re saying that you’re like blowing Jesus

OGRAM: Okay. There we go.

A: I have done it like 6 times.

OGRAM: Yup.

A: Am I not getting the, not getting what you want or?

OGRAM: You’re not doing what I want at all.

A: I am blowing.

OGRAM: No you’re not.

A: Yes I am. I’ll make sure I put my hand in front of your hand i’m not blowing on your hand.

OGRAM: Yeah

A: Or you know the thing put your hand in front of your hand

OGRAM: This instrument’s telling me you’re not blowing okay? Aside from what I can feel on my hand this instrument.

A: How much measure do you want?

OGRAM: I want steady breath. That’s it. Can you breathe, act it out for me. Real slow eh? So you can do that without problem even with your dry mouth right?

A: Yes.

OGRAM: Then you can do it with this. Okay? But you don’t want to.

A: I don’t want to, or it’s something I don’t want to.

OGRAM: Okay Jeremy. 12:27, why will you not provide a sample of your breath?

A: I will 100%. I’ve tried every time.

OGRAM: You have not tried.

A: I have.

OGRAM: Okay. And I’m demanding you provide a sample of your breath.

A: If you are pet my lips

OGRAM: No what I want you to do is put your lips right around the mouthpiece and blow into the instrument. Okay. Jeremy i’ve instructed you several times and you’re not doing it.

A: I have done

OGRAM: Okay. Then try it again.

A: Again. What’s this? 7?

OGRAM: 7. At least. Okay.

A: Tell me i’m blowing anywhere else but in the fucking mouth piece.

FOSTER: Keep blowing.

OGRAM: Yup

FOSTER: Until he tells you to stop

A: He doesn’t even need to tell me to stop I can by the look on his face and his face tells me.

OGRAM: Okay Jeremy. 12:28

FOSTER: Just listen to him. Just listen to him.

OGRAM: You are now going to be charged for failing to provide breath samples. Okay do you understand that?

A: No I do not understand that it because I have done it 8 times.

OGRAM: Right and all aren’t suitable samples. Okay?

A: Come on.

OGRAM: So you’re going to be charged with failing breath samples

A: What do you mean? What do I got to do to prove it to you?

OGRAM: Okay? Well provide a sample, right? You didn’t want to do that.

A: What do I need to do? Do you want

OGRAM: No okay. He can go back to the interview room.

A: I’m blowing into it.

OGRAM: No you’re not. Okay so Jeremy we’re done here. Our testing has concluded okay? You’ve made a decision here tonight and that’s it. Okay?

A: I’ve

OGRAM: So this officer’s going to escort you

A: I’m trying to blow in there

OGRAM: Jeremy this officer is going to escort you back to your interview room. Okay?

A: I just tried to blow in there.

OGRAM: Okay. I need you to get up and walk with this officer now please.

A: Some night for me eh?

CITATION: R. v. Glenfield, 2015 ONSC 1636

COURT FILE NO.: CJ 7681

DATE: 2015-03-

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Jeremy Glenfield

P.B. Hambly, J.

Released: March 12, 2015