Court File and Parties

COURT FILE NO.: CR-12-30000090-00AP DATE: 20160419

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – ARTURO SURHOFF Appellant

Counsel: Darren Hogan, for the Respondent Christine Wadsworth, for the Appellant

HEARD: March 24, 2016

M.A. CODE J.

REASONS FOR JUDGEMENT

A. INTRODUCTION

[1] The Appellant Arturo Surhoff was charged in a four count Information with impaired driving, assault with intent to resist arrest (with respect to Cst. McCarthy), refusal to comply with a breath sample demand, and assault police (with respect to Cst. Mohr). The Crown proceeded summarily before O’Donnell J. The trial was unusually long as numerous issues were raised. It commenced on September 13, 2011 and proceeded intermittently over seven days. At the end of the trial, on May 11, 2012, O’Donnell J. reserved judgement for about two weeks.

[2] On May 28, 2012, the trial judge released lengthy written reasons finding Mr. Surhoff guilty on three of the four offences charged, namely, impaired driving, assault resist arrest, and refusal to comply. He acquitted Mr. Surhoff on the assault police count.

[3] On June 12, 2012, O’Donnell J. sentenced Mr. Surhoff to a fine of $1000 and an 18 month license suspension on the impaired driving count, to a suspended sentence with two years probation and 240 hours community service on the assault resist arrest count, and to a fine of $1000 on the refusal to comply count.

[4] Mr. Surhoff appealed to this Court against both conviction and sentence. The appeal has been delayed because Mr. Surhoff did not have counsel and he did not have sufficient funds to pay for the lengthy trial transcripts. Judges of this Court repeatedly allowed Mr. Surhoff time to raise the money to pay for the transcripts. In addition, University of Toronto law students at Downtown Legal Services (D.L.S.) assisted Mr. Surhoff in preparing his appeal, with Ms. Wadsworth and the McCarthy Tetrault law firm over-seeing the law students’ work and preparing the Appellant’s factum. After more than three years in this Court, the appeal was perfected and was scheduled to proceed to a hearing. The fines and probation order had been stayed for various periods of time pending the appeal but the license suspension was not stayed.

[5] I heard the appeal on March 24, 2016. Ms. Wadsworth made forceful and able submissions on behalf of the Appellant. I am grateful to her, and to the D.L.S. students, for their pro bono assistance to Mr. Surhoff. At the end of the hearing I reserved judgement. These are my reasons for judgement.

B. FACTS

[6] In brief summary, the facts of the case are that two off-duty police officers were working on what is known as “paid duty” at an LCBO store in Toronto on May 8, 2010. They were alerted by a member of the public to a possible impaired driver in the store parking lot. It was about 11:00 pm and the store was closing.

[7] Upon attending at the parking lot, Cst. McCarthy found Mr. Surhoff driving his car into a parking space. Another member of the public, Mr. Permaul, was present. He alleged that Mr. Surhoff had been involved in a minor collision with Mr. Permaul’s car. Mr. Surhoff was protesting with words to the effect, “I’m not driving, I’m not drunk”. He appeared intoxicated, indeed Mr. Permaul described him as “very drunk”. The “paid duty” officers arrested Mr. Surhoff for impaired driving, Mr. Surhoff vigorously resisted arrest, and considerable force was used by Cst. McCarthy in order to carry out the arrest. In particular, Cst. McCarthy used knee strikes to Mr. Surhoff’s legs in order to bring him to the ground. When Mr. Surhoff continued to struggle and resist on the ground, Cst. McCarthy used further knee strikes to the area of Mr. Surhoff’s ribs and he used his baton to strike the back of Mr. Surhoff’s arm until he was successfully handcuffed. This admitted use of force by Cst. McCarthy caused a number of injuries to Mr. Surhoff, including two broken ribs, a nose bleed, a black eye, facial swelling, and numerous superficial abrasions. Perhaps most significantly, once Mr. Surhoff was subdued and handcuffed, he stopped breathing briefly and began to turn purple before he resumed breathing on his own.

[8] An ambulance was called and Mr. Surhoff was taken to the hospital. He remained agitated and belligerent and hospital restraints were used to secure him to the gurney, both in the ambulance and at the hospital. A breath sample demand was made in the ambulance by two “on-duty” police officers, who had taken over the investigation from the two off-duty or “paid duty” officers at the LCBO. Cst. Mohr was one of these new officers. At the hospital, Mr. Surhoff’s agitation and belligerence continued. He refused to participate in breath sample testing, after an Intoxilyzer was brought to the hospital. After Mr. Surhoff was charged with the further offence of refusal to comply, he began to repeatedly spit at the officers and at the Intoxilyzer, according to the police version of events. This included spitting blood at Cst. Mohr, which led to the final charge of assault police. Further use of force by the police ensued, in order to control and prevent Mr. Surhoff’s spitting. In the end, the police released Mr. Surhoff from the hospital on a “Form 9” appearance notice.

[9] Mr. Surhoff’s evidence, in relation to various Charter of Rights issues raised at trial, can be briefly summarized as follows: he had been drinking but he was not severely intoxicated when he drove to the LCBO; he denied having a minor collision with Mr. Permaul’s car; he denied driving his car into a parking space when Cst. McCarthy arrived on scene in the LCBO parking lot; he was trying to get an explanation from Cst. McCarthy when he was thrown to the ground; when he was flailing about on the ground, he was simply trying to get away from Cst. McCarthy’s blows; at the hospital, he was upset and was screaming for help, Cst. Mohr put on a black glove and gratuitously gave him two punches to the face and one punch in the stomach; Mr. Surhoff admitted that, at this point, he spat at Cst. Mohr but it was only once and with no blood; he denied any other spitting at the officers or at the Intoxilyzer; no other officers were present when Cst. Mohr gratuitously struck Mr. Surhoff three times but two hospital security guards were present.

[10] I will refer to some additional aspects of the evidence below, as necessary, when discussing the various grounds of appeal.

C. THE CHARTER OF RIGHTS ISSUES AT TRIAL AND THE GROUNDS OF APPEAL

[11] A number of Charter of Rights Motions were brought at trial. They raised s.9 issues relating both to Mr. Surhoff’s arrest in the LCBO parking lot and his detention at the hospital, s.10(b) issues relating both to delays in advising him and failures to facilitate his right to counsel, ss.7 and 12 issues relating to police use of force (both at the time of his arrest in the parking lot and later at the hospital), and s.11(b) issues concerning alleged delay of the trial. Mr. Surhoff called evidence solely in relation to the Charter issues. The Crown called its evidence in relation to both the trial issues and the Charter issues. At the end of the trial, Mr. Surhoff called some evidence solely in relation to the trial issues.

[12] O’Donnell J. ruled on both the Charter issues and on the trial issues in his May 28, 2012 written reasons. He dismissed all of the Charter Motions, prior to convicting Mr. Surhoff on three counts and acquitting him on one count, as summarized above. O’Donnell J.’s written reasons clearly delineate, by the use of headings and by the subject matter, as to when he is ruling on the Charter issues and when he is ruling on the trial issues. This distinction became important on the appeal, as will be seen below, because of the differing burdens and degrees of proof on the trial and on the Charter Motions.

[13] On the appeal from conviction, Ms. Wadsworth pursued only two of the numerous Charter issues raised at trial. She submitted that the trial judge erred in dismissing the ss.7 and 12 Motion relating to use of excessive force by the police and that he erred in dismissing the s.10(b) Motion relating to the right to counsel. In relation to the merits of the case, Ms. Wadsworth raised only one issue, namely, whether the trial judge erred in convicting Mr. Surhoff of assault resisting arrest (in relation to Cst. McCarthy). In other words, there are three grounds of appeal.

[14] The merits of the two convictions for impaired driving and refusal to provide a breath sample were not challenged on appeal. In addition, the sentence appeal was not pursued. Mr. Surhoff has now served his license suspension and the stay of the fines and the probation order has expired.

D. THE CHARTER MOTION CONCERNING USE OF EXCESSIVE FORCE

[15] The Appellant seeks a s.24(1) remedy of a stay of all proceedings for alleged violations of ss.7 and 12 of the Charter of Rights. He relies on well-known authorities concerning police misconduct, including improper use of force, such as R. v. Babos and Piccirilli (2014), 2014 SCC 16, 308 C.C.C. (3d) 445 (S.C.C.), R. v. Bellusci (2012), 2012 SCC 44, 293 C.C.C. (3d) 565 (S.C.C.), and R. v. Tran et al. (2010), 2010 ONCA 471, 257 C.C.C. (3d) 18 (Ont. C.A.). He submits that the trial judge erred by misapprehending certain important evidence relating to the ss.7 and 12 Charter Motion. I will summarize the trial judge’s reasons for dismissing this Charter Motion and will then explain the ground of appeal in greater detail.

[16] The trial judge dismissed all of the Charter Motions. He began this part of his reasons with a lengthy recitation of the relevant evidence (at paras. 24-79). He then made general findings concerning the credibility and reliability of the Crown and defence witnesses (at paras. 80-88). He found that Mr. Surhoff was generally not a reliable witness because he was evasive and inconsistent and because he was contradicted by both Mr. Permaul and Cst. McCarthy concerning events in the parking lot. On the other hand, he found Mr. Permaul and Cst. McCarthy (and his “paid duty” partner, Cst. Mills) to be generally reliable. He gave careful and detailed reasons in support of these findings. He concluded that Mr. Surhoff’s account of the initial events in the parking lot was “largely fantastical” and that “his behaviour that night was confrontational, unreasonable and belligerent and persistently so.”

[17] In relation to the “on duty” police officers, who took over the investigation from Cst. McCarthy and Cst. Mills and who took Mr. Surhoff to the hospital, the trial judge was not so impressed. He found that parts of Cst. Mohr’s evidence “rang entirely true”, such as the sensation of Mr. Surhoff’s bloody spit landing in his mouth and his subsequent unpleasant course of treatment concerning possible HIV infection. However, he found that other parts of Cst. Mohr’s evidence were “less compelling”. He was also critical of certain aspects of the police evidence concerning events at the hospital, in particular, the decision to release Mr. Surhoff from the hospital on an appearance notice. He concluded that Cst. Mohr was “a generally reliable narrator of events” and that the police evidence concerning events at the hospital “is more probably true than that of Mr. Surhoff, both because of the concerns I have with respect to his testimony and because of the general, albeit not absolute confidence I have in theirs.” He identified the precise point in the narrative of events at the hospital when his confidence in the police accounts diminished, namely, “when it is alleged, depending on whose version one accepts, that Mr.hoff spat on Cst. Mohr and was further ‘restrained’ or that Cst. Mohr struck Mr. Surhoff gratuitously and got a mouth full of blood for his troubles.”

[18] Having made these findings relating to the witnesses’ general credibility and reliability, O’Donnell J. instructed himself correctly on the burden of proof in relation to the Charter issues (at paras. 89-90). He then proceeded to address each one of the various Charter Motions.

[19] After finding that Mr. Surhoff’s arrest and detention in the LCBO parking lot was lawful, a finding that is not challenged on appeal, the trial judge turned to the issue of whether Cst. McCarthy used excessive force in carrying out the arrest. The Appellant concedes that O’Donnell J. instructed himself correctly, pursuant to s.25 of the Criminal Code, that “a police officer making an arrest is entitled to use as much force as is reasonably necessary for that purpose.” The trial judge then concluded as follows, in relation to this initial police use of force in the parking lot at the time of the arrest (at paras. 97-8):

In light of the evidence of Cst. McCarthy, Cst. Mills and Mr. Permaul, I am satisfied that Cst. McCarthy was faced with unlawful resistance to his attempt to arrest and handcuff Mr. Surhoff and that he progressed appropriately up the ladder of use of force options having regard to the degree and persistence of resistance, the size of Mr. Surhoff, the fact that Cst. McCarthy was alone for the first part of the struggle and the fact that even when taken to ground Mr. Surhoff refused to surrender both his hands. The notion submitted to me that Cst. McCarthy should have backed off when Mr. Surhoff resisted the arrest is not reasonable. The suggestion that the police should have told Mr. Surhoff that they were going to take him to ground makes no sense at all. I am satisfied that the degree of force used by Cst. McCarthy and Cst. Mills in subduing Mr. Surhoff was reasonable in the circumstances. This was a lawful arrest conducted appropriately.

[20] When the trial judge turned to the further issue of police use of force at the hospital, he reached somewhat different conclusions. He found that Mr. Surhoff was lawfully detained pursuant to Criminal Code powers, as he was under arrest and was being held for breath sample testing. He noted three main considerations that made it difficult to resolve the factual disputes between the police and Mr. Surhoff as to what actually happened at the hospital (at paras. 105-107): first, the burden of proof was on Mr. Surhoff and the trial judge had “general difficulty with Mr. Surhoff’s testimony”, mainly because he “understated his own responsibility”; second, Mr.hoff’s “narrative of precisely what happened and in what order was more than a little imprecise and unclear”; and third, “the police version of events also has a less than clear and consistent story line” and was characterized by “fairly rampant inconsistency on some major issues.” The first two factors were “militating against Mr. Surhoff’s success on this part of his application” whereas the third factor “lends some support to Mr. Surhoff’s argument on the alleged unlawful assault in the hospital room” [emphasis of O’Donnell J.]. The trial judge then concluded (at para. 108):

When I consider all of the evidence with respect to what happened in the hospital room after the Intoxilyzer process, both with respect to precisely what happened and in what sequence, I do have some concerns about the reliability of the police version of events. However, on an application on which Mr. Surhoff bears the burden of proof on a balance of probabilities, given the major probabilities [sic problems?] with Mr. Surhoff’s own evidence I am not satisfied that he has met that burden.

[21] On appeal, Ms. Wadsworth made the fair and realistic concession that the trial judge was entitled to reject or simply not be persuaded by Mr. Surhoff’s evidence, based on the findings of credibility and reliability summarized above. However, she submitted that the ss.7 and 12 Charter violations properly arose from the Crown’s own evidence and that it was a failure to give “proper effect” to certain aspects of that Crown evidence which led O’Donnell J. to arrive at an unreasonable conclusion concerning the police use of force in this case.

[22] It is settled law that misapprehension of evidence, as a ground of appeal, can only succeed where there is “a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence,” and where “those errors play an essential part in the reasoning process resulting in a conviction,” per Doherty J.A. in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 at paras. 83 and 93 (Ont. C.A.). This test “describes a stringent standard” because the alleged misapprehension of evidence must “go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge.” In addition, the errors “must play an essential part not just in the narrative of the judgement but ‘in the reasoning process resulting in a conviction’”, per Binnie J. in R. v. Lohrer (2004), 2004 SCC 80, 193 C.C.C. (3d) 1 (S.C.C.).

[23] Ms. Wadsworth divided her submissions on this point between the events at the time of arrest and the later events at the hospital. In relation to the former time period, she submitted that the trial judge failed to give proper effect to the evidence of Mr. Permaul and to the evidence of Cst. Gonsalves.

[24] In relation to Mr. Permaul, his testimony corroborated Cst. McCarthy on a number of points. He described Mr. Surhoff as being “very drunk”, as persistently “resisting” the police attempts to carry out a custodial arrest by handcuffing him, as “still struggling” when on the ground, and as “not giving his hands.” In addition, Ms. Permaul testified that no blows were struck by the arresting officers after they had succeeded in handcuffing Mr. Surhoff, contrary to Mr. Surhoff’s evidence. Ms. Wadsworth stressed two other aspects of Mr. Permaul’s evidence that were perhaps less helpful to the Crown: first, he did not describe Mr. Surhoff actually landing any blows, although he was “struggling” and “resisting”, whereas Cst. McCarthy described Mr. Surhoff trying “to push me to get away” and “striking out with his legs”, although Cst. McCarthy also agreed that the kicks did not actually strike him; and second, Mr. Permaul testified that his “general impression” was that Cst. McCarthy “did his job, but he took it a little too far with the knees. Like to me, that was uncalled for. He [Mr. Surhoff] was already on the floor. Like he had him controlled, but I wasn’t the officer in that position … he didn’t have him in handcuffs. He just had him on the floor with his knee on top of him.”

[25] The trial judge found Mr. Permaul to be “an honest and generally reliable witness.” However, he also noted that Cst. McCarthy “was closer to the events than Mr. Permaul and had the benefit of notes to assist his recollection” whereas Mr. Permaul was “interviewed only in relation to the collision” and his “statement to the police did not record any of his other observations for future refreshing of memory.” In these circumstances, the trial judge concluded that “Cst. McCarthy’s recollection is more reliable at a trial more than a year after the fact” (at paras. 82 and 93).

[26] In my view, the trial judge did not misapprehend Mr. Permaul’s evidence in the Morrissey and Lohrer sense. His evidence was largely favourable to the Crown’s position, the variations between his account and Cst. McCarthy’s account were on matters of detail and not substance, and the trial judge gave cogent reasons for somewhat preferring Cst. McCarthy’s account.

[27] As to the evidence of Cst. Gonsalves, he was Cst. Mohr’s partner. They were the two “on duty” officers who arrived at the scene and took custody of Mr. Surhoff from the two “paid duty” officers who had arrested Mr. Surhoff in the LCBO parking lot. Cst. Mohr’s evidence was that they did not arrive on scene until about 11:15 pm, that is, about 15 minutes after Cst. McCarthy went out to the parking lot, and that Mr. Surhoff was already in handcuffs at this point. Cst. Gonsalves’ evidence could be read as somewhat inconsistent with Cst. Mohr and with the two arresting officers, as he testified or implied that the two “on duty” officers were involved in subduing Mr. Surhoff. Ms. Wadsworth submitted that Cst. Gonsalves’ evidence was important to the Charter Motion concerning excessive force as it could be taken to mean that four officers were available to subdue and handcuff Mr. Surhoff and that the force used by Cst. McCarthy was, therefore, unnecessary. The trial judge found that Cst. Gonsalves’ evidence “was somewhat unclear” and that there was no “significance to this divergence” with the other officers.

[28] In my view, the trial judge did not misapprehend Cst. Gonsalves’ evidence in the Morrissey and Lohrer sense. The preponderance of the evidence was to the effect that Cst. McCarthy went out to the LCBO parking at about 11:00 pm, that he was initially alone in arresting Mr. Surhoff, that Cst. Mills joined him in the parking lot, and that the two officers eventually succeeded in subduing Mr. Surhoff and handcuffing him. The two “on-duty” officers (Cst. Mohr and Cst. Gonsalves) then arrived at about 11:15 pm and there was a further struggle in getting Mr. Surhoff into the ambulance. It was more likely this further struggle with Mr. Surhoff that Cst. Gonsalves was involved with, as opposed to the earlier struggle at the time of the arrest, and that Cst. Gonsalves has simply conflated or confused the two events. The trial judge’s treatment of Cst. Gonsalves’ evidence was entirely appropriate in my view.

[29] In relation to the later time period at the hospital, Ms. Wadsworth submitted that gratuitous violence by the police officers at this later stage of events, even standing alone, could justify the s.24(1) remedy of a stay of proceedings. I agree with this proposition, as a matter of legal principle.

[30] As summarized above, the police account of their further use of force at the hospital was that it was in response to repeated assaults by Mr. Surhoff who was spitting blood at them. In particular, on one occasion Mr. Surhoff spat blood and it landed in Cst. Mohr’s mouth. This led to a lengthy and unpleasant course of medical treatment in order to test Cst. Mohr for, and to prevent, communicable diseases like HIV. The senior officer at the hospital, Cst. Wynia, testified that Mr. Surhoff spat at least a dozen times, including spitting blood at Cst. Mohr’s face. The breathalyzer technician, Cst. Hodkin, testified that Mr. Surhoff was loud and aggressive, had a strong smell of alcohol, refused to provide a breath sample, and then bit his lip and spat blood on the wall, on the officers, and then on the Intoxilyzer. Cst. Gonsalves testified that Mr. Surhoff spat blood two or three times, including at Cst. Mohr’s face. Mr. Surhoff’s contrary account, as summarized above, was that Cst. Mohr put on a black glove and gratuitously punched him three times. It was at this point that Mr. Surhoff admitted that he responded by spitting once, with no blood, at a time when no other police officers were present but when two security guards were present.

[31] Ms. Wadsworth relies heavily on the fact that Mr. Surhoff was restrained to some degree, with rubberized hospital restraints on his wrists and ankles, and so his movement was partially restricted. She then relies on the fact that Cst. Mohr admitted that he pushed Mr. Surhoff back down on the bed after Mr. Surhoff had become agitated and “sat up and lunged forward at me.” Cst. Mohr also admitted that, after the spitting began, he slapped Mr. Surhoff once in the face with an open hand as a “distractionary strike…just to get him to stop spitting.” The police tried to put a face mask on Mr. Surhoff, to prevent him from spitting, but he “ripped it off his face.” Finally, the police used a sheet to prevent the spitting. There were various descriptions in the police evidence as to exactly how the sheet was used.

[32] Ms. Wadsworth’s submission in relation to excessive use of force by the police, during this later time period at the hospital, is that there were two related misapprehensions of evidence: first, the trial judge failed to give proper effect to Cst. Mohr’s admitted use of force against a partially restrained prisoner in a hospital bed; and second, that the trial judge found the Appellant not guilty of assaulting Cst. Mohr, later in his Reasons and on the basis of reasonable doubt, but that his reasoning in this regard was also sufficient to find proof on a balance of probabilities of the Charter violation concerning excessive use of force by the police officers at the hospital. In effect, the second submission is that there is an inconsistency between the acquittal on the assault police count and the dismissal of the ss.7 and 12 Charter Motion.

[33] I cannot accept either of these submissions. As to the first submission, which assumes acceptance of Cst. Mohr’s description of events, the admitted push and slap followed by the use of a face mask and a sheet, were all escalating and proportionate responses to an angry, agitated, intoxicated prisoner who was spitting blood at the officers, according to the police version of events. Furthermore, the relevance of the rubberized hospital restraints is diminished by the fact that they had no impact on Mr. Surhoff’s ability to spit at the officers, with or without blood, based on both Mr. Surhoff’s own account and the police officers’ accounts. The admitted use of a push, a slap, a face mask, and a sheet, in these circumstances, bears no resemblance to “the gratuitous beating” described in Tran, supra or to the facts in Bellusci, supra, where the accused “was attacked by an agent of the state while chained, handcuffed, shackled and confined to his cell” in circumstances “that would shock the public.” In Tran, supra at para. 94, Epstein J.A. stated that, “This was not a case of excessive police force in the discharge of their duties … No degree of force was warranted.” In the present case, Cst. Mohr’s admitted push and slap of Mr. Surhoff, at its very highest, represented a minor instance of excessive force in response to spitting by a very difficult prisoner. It could not possibly have provided the basis for a stay of proceedings.

[34] As to the second argument, the trial judge was clearly troubled by certain aspects of the police account of the final events at the hospital. He had a reasonable suspicion that there might have been an unlawful use of force by the police and so he acquitted Mr. Surhoff on the count alleging an assault on Cst. Mohr at the hospital. This is a far cry from being persuaded, on a balance of probabilities on the Charter Motion, that the gratuitous assaults alleged by Mr. Surhoff had been proved. The trial judge referred to “some red flags” arising from events at the hospital and to the “cynical possibility” that the police released Mr. Surhoff from the hospital so as not to have to account for their use of force “through the booking process” at the station (at para. 121). He then stated the following as the basis for acquitting Mr. Surhoff on the assault police count (at paras. 122, 127-8, 133, and 135):

This is not a case in which I can say with absolute certainty, what did or did not happen when Cst. Mohr says he was gratuitously spat upon and Mr. Surhoff says he was unlawfully assaulted. I was not there. The officers are not on trial; Mr. Surhoff is on trial. However, the burden of proof is omnipresent in a criminal trial and it lies on the Crown to prove its case on each individual count beyond a reasonable doubt.

There is obviously no doubt that Mr. Surhoff spat at Cst. Mohr since he has admitted doing so, but there is less certainty about the extent of the spitting and the circumstances under which it occurred. The Crown suggests that reasonable doubt can only exist here either by undue cynicism or by an unreasonable quest for a perfect structure in the evidence. The Crown also denigrates the notion of a grand conspiracy among the officers here. The Crown says that Mr. Surhoff is an unreliable and untrustworthy narrator.

From what I have said before it should be clear that I agree with the Crown on the last point; I have significant difficulties accepting everything that Mr. Surhoff says as the unvarnished truth. I have no doubt whatsoever that he started off on a confrontational footing and became progressively more enraged as Cst. McCarthy tried to arrest him and when Cst. McCarthy used progressive degrees of force when faced with Mr. Surhoff’s significant resistance to that arrest. His injuries did not improve Mr. Surhoff’s mood or attitude and he felt much aggrieved by a chain of events he had set in motion. I have no doubt that he significantly understates his belligerence and fault.

It must be kept in mind that the question I have to decide at this stage of the process is not whether I find the police version or Mr. Surhoff’s version more plausible. That was the test at an earlier stage [on the Charter Motions] but no longer. The question here is whether I am satisfied beyond a reasonable doubt of the essential facts and elements. If I have a reasonable doubt about whether or not Mr. Surhoff was unlawfully assaulted before spitting at Cst. Mohr, then the Crown has failed to prove the charge. This would not mean that I conclude that the police did in fact unlawfully assault Mr. Surhoff and try to cover it up, or even that it is more likely than not that they did, only that there is a reasonable doubt on that issue.

On all evidence, I am left with a reasonable doubt about the sequence of events leading up to Mr. Surhoff spitting at Cst. Mohr and as a result I am not satisfied that the Crown has proved the assault police charge involving Cst. Mohr beyond a reasonable doubt. [Emphasis added].

[35] The trial judge’s footnotes in this part of his Reasons are also important as he expressly stated that his finding of reasonable doubt, in relation to the Crown’s failure to prove Mr. Surhoff guilty of assaulting Cst. Mohr, was not inconsistent with his earlier finding that the ss.7 and 12 Charter Motion had not been proved by Mr. Surhoff on a balance of probabilities. Footnotes 17, 18, and 19 are as follows:

17 On the charge of assault police, an unlawful assault such as this would mean that Cst. Mohr was not engaged in the execution of his duty. On the included charge of common assault, the spitting, while perhaps not the most sensible response, would fall within the reasonable bounds of self-defence for a person who was bound hand and foot.

18 I have already held, on the Charter application, that based on the record before me I am not satisfied that the alleged assault by the police was proved on the balance of probabilities.

19 The factors I set out in these reasons combine to create reasonable doubt in my mind that I have received a full and truthful account of what happened in that hospital room between Cst. Mohr and Mr. Surhoff after the Intoxilyzer refusal. It is as if I am being shown that particular portion “through a glass darkly”. When I analyze the possible reasons for the problems with the evidence relating to that time period, the most obvious possible explanation is that there may have been an unlawful use of force and that the peculiarities in the evidence reflect an attempt to gloss over that. When I consider the impact of my concern about that portion of the evidence in relation to the rest of the police evidence in terms of trustworthiness, I am satisfied that the balance of the police evidence does not suffer from any similar frailties. [Italics of O’Donnell J., under-lining added].

[36] Ms. Wadsworth relied heavily on footnote 19 and submitted that, in effect, it meant that the trial judge drew an inference that there had been “unlawful use of force” at the hospital. Accordingly, he should also have found that the ss.7 and 12 Charter breach had been proved on a balance of probabilities. She submits that it was unreasonable to dismiss the ss.7 and 12 Charter Motion, after “scrutinizing the logic of the judge’s findings of fact or inferences drawn from the evidence”, as explained in R. v. Beaudry (2007), 2007 SCC 5, 216 C.C.C. (3d) 353 (S.C.C.) and R. v. Sinclair (2011), 2011 SCC 40, 270 C.C.C. (3d) 421 at paras. 15 and 45 (S.C.C.).

[37] In my view, this submission conflates the two different degrees and burdens of proof. It is settled law that “reasonable possibilities”, which O’Donnell J. found in this case in relation to the assault police count, can form the basis for reasonable doubt. Proof of “probabilities” in favour of the defence was not necessary in order to acquit of assault police at the end of a criminal trial. In R. v. Finlay and Grellette (1985), 23 C.C.C. (3d) 48 at 58 (Ont. C.A.), Martin J.A. referred to the leading authorities on this point and stated:

…the direction [in the charge to the jury] was apt to convey to the jury the impression that possibilities could not give rise to a reasonable doubt. This Court has held on a number of occasions that reasonable possibilities in favour of the accused may give rise to reasonable doubt and that it is an error to exclude reasonable possibilities from the concept of reasonable doubt by directing the jury that reasonable doubt must be based on probabilities, not possibilities: see R. v. Lachance, [1963] 2 C.C.C. 14 at p. 17 (Ont. C.A.); R. v. Campbell (1978), 38 C.C.C. (2d) 6 at pp. 22-3 (Ont. C.A.); R. v. Figueira (1982), 63 C.C.C. (2d) 409 at pp. 410-1 (Ont. C.A.).

[38] Proof on a balance of probabilities, which was the relevant standard on the ss.7 and 12 Charter Motion, requires far more than a “reasonable suspicion” or a “reasonable possibility.” In the Charter context, it has often been said that the latter standard is a lower standard than “reasonable probability” or “reasonable and probable grounds.” See: R. v. Jacques (1996), 110 C.C.C. (3d) 1 at paras. 14 and 50-52 (S.C.C.); R. v. Kang-Brown (2008), 2008 SCC 18, 230 C.C.C. (3d) 289 at paras. 75-6 (S.C.C.); Hunter et al. v. Southam Inc. (1984), 14 C.C.C. (3d) 97 at pp.114-115 (S.C.C.). The leading authority describing the burden and degree of proof on a Charter Motion remains R. v. Collins (1987), 33 C.C.C. (3d) 1 at pp. 13-14 (S.C.C.) where Lamer J., as he then was, stated:

The appellant, in my view, bears the burden of persuading the court that her Charter rights or freedoms have been infringed or denied. That appears from the wording of s. 24(1) and (2), and most courts which have considered the issue have come to that conclusion: see R. v. Lundrigan (1985), 19 C.C.C. (3d) 499 (Man. C.A.), and the cases cited therein, and Gibson, The Law of the Charter: General Principles (1986), p. 278. The appellant also bears the initial burden of presenting evidence. The standard of persuasion required is only the civil standard of the balance of probabilities and, because of this, the allocation of the burden of persuasion means only that, in a case where the evidence does not establish whether or not the appellant's rights were infringed, the court must conclude that they were not. [Emphasis added].

[39] In Lederman, Bryant and Fuerst, The Law of Evidence in Canada, 4th Ed. 2014, at p.93, the authors describe the operation of the civil standard of proof in similar terms to those of Lamer J. in Collins, as follows:

In civil proceedings, the persuasive burden does not play a part in the decision-making process if the trier of fact can come to a determinate conclusion on the evidence. If, however, the evidence leaves the trier of fact in a state of uncertainty, the persuasive burden is applied to determine the outcome. In Robins v. National Trust Co., the Privy Council explained the operation of the legal burden in civil cases as follows:

But onus as a determining factor of the whole case can only arise if the tribunal finds the evidence pro and con so evenly balanced that it can come to no sure conclusion. Then the onus will determine the matter. But if the tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus has nothing to do with it, and need not be further considered. [Emphasis added].

[40] In this case, the trial judge was not satisfied that the Crown had proved that Mr. Surhoff unlawfully assaulted Cst. Mohr. However, this did not mean that the defence had proved the converse, namely, an unlawful assault by Cst. Mohr. This is not unlike a failure to prove an aggravating fact beyond reasonable doubt at a sentencing hearing, which does not mean that the opposite mitigating fact has been proved on a balance of probabilities, as the Court explained in R. v. Smickle (2013), 2013 ONCA 678, 304 C.C.C. (3d) 371 at para. 18 (Ont. C.A.):

If the Crown relies on a fact as aggravating on sentencing, and the fact is not admitted, the Crown must prove that fact beyond a reasonable doubt. However, the failure to prove an alleged aggravating fact beyond a reasonable doubt does not permit the trial judge to assume a version of facts most favourable to an accused. If the defence relies on mitigating facts and those facts are not conceded by the Crown, the accused must establish those facts on the balance of probabilities: Criminal Code, s. 724(3) R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 at para 18; and R. v. Holt (1983), 4 C.C.C. (3d) 32 (Ont. C.A.), at pp. 51-52, leave to appeal to S.C.C. refused: [1983] S.C.C.A. No. 474 (S.C.C.).

[41] Ms. Wadsworth’s second submission concerning police use of force at the hospital cannot succeed because the trial judge never drew the inference, on a balance of probabilities, that Cst. Mohr had unlawfully assaulted Mr. Surhoff. At most, he referred to it as a “cynical possibility” or a “possible reason” or “the most obvious possible explanation” for certain troubling features in the police evidence. These are findings that are properly associated with reasonable doubt but not with the civil standard of proof on a balance of probabilities. At the end of the ss.7 and 12 Charter Motion, the trial judge could not “come to a determinate conclusion” concerning the final events at the hospital that led to the spitting incident. Accordingly, he resolved the matter on the basis of “the allocation of the burden of persuasion”, in the manner described above in The Law of Evidence in Canada and in Collins.

[42] For all these reasons, I am not satisfied that the trial judge failed to give proper effect to any of the evidence heard on the ss.7 and 12 Charter Motion concerning use of excessive force by the police, either in the parking lot or at the hospital. In the result, this first ground of appeal cannot succeed.

E. THE CHARTER MOTION CONCERNING RIGHT TO COUNSEL

[43] The second ground of appeal alleges that the trial judge erred in dismissing the Charter Motion relating to the Appellant’s s.10(b) right to counsel. There was an initial issue raised at trial concerning delay in advising Mr. Surhoff of his s.10(b) rights. The police conceded that they did not carry out this informational aspect of s.10(b) until Mr. Surhoff was restrained in the ambulance, at about 11:31 pm. The trial judge found that this was the first reasonable opportunity to advise Mr. Surhoff of his s.10(b) rights, given his vigorous resistance to arrest and the medical emergency that ensued when he briefly stopped breathing. Police compliance with the initial informational component of s.10(b) rights is not challenged on appeal.

[44] The issue on appeal is whether the police complied with their implementation duties. Lamer C.J.C. described these duties in the following terms in R. v. Bartle (1994), 92 C.C.C. (3d) 289 at 301 (S.C.C.):

(b) 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

(c) 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).

[45] The trial judge held that Mr. Surhoff had not triggered the police implementation duties as he had not “indicated a desire to exercise this right”, as Lamer C.J.C. put it in Bartle. O’Donnell J. summarized the evidence on this s.10(b) point and reasoned as follows:

Mr. Surhoff says that he had his lawyer’s card and wanted to call him. I am not satisfied on the balance of probabilities that Mr. Surhoff communicated any such desire to the police. The evidence of the police with respect to Mr. Surhoff’s access to a telephone is quite divergent. For example, Constable Gonsalves says that a phone was brought to Mr. Surhoff and he was allowed to call his wife, after which he did not want to talk to a lawyer. However Constable Mohr, who insisted he was in the room at all times up to the spitting, when he left for his own medical treatment, had no recollection of that event. Constable Hodkin also had no recollection of that happening, although the evidence seems clear that he was in and out of the room as a result of the malfunction with the first Intoxilyzer so it could have happened in his absence; he never heard Mr. Surhoff ask for a lawyer but recalled that he was insistent about speaking to his wife. Obviously, Mr. Surhoff did get to telephone his wife: she and he testified to that fact. Overall, the police testimony, which I find somewhat more believable than Mr. Surhoff’s on this point, is that Mr. Surhoff at times said he wanted to speak to counsel and at times vehemently insisted he did not want to, in particular that after speaking with his wife he stridently rejected the suggestion that he call duty counsel and that his “final answer” was that he did not want to speak to counsel. Applying the balance of probabilities standard I am satisfied that the police notified Mr. Surhoff of his right to counsel including the right to call a lawyer of his own choosing or free duty counsel, that Mr. Surhoff was capable of understanding that information and that he made an informed choice not to exercise his right to counsel. If he genuinely wanted to speak with counsel, his back and forth on that issue is not consistent with him being duly diligent in exercising that right. [Emphasis added].

[46] It can be seen that the trial judge made three important findings on a somewhat complicated and inconsistent factual record: first, that Mr. Surhoff went “back and forth” as to whether he wanted to speak to a lawyer; second, that he wanted to speak to his wife and that a call to her was facilitated by the police; and third, that after speaking to his wife he firmly and finally declined any opportunity to call a lawyer.

[47] The argument on appeal begins with the premise that Mr. Surhoff admittedly asked to speak to counsel on some occasions. It is then argued, as a matter of law, that the police were required to give him a “Prosper warning” when subsequently, on other occasions, he would change his mind. See: R. v. Prosper (1994), 92 C.C.C. (3d) 353 (S.C.C.). The trial judge addressed this issue as follows:

I am not satisfied that these were circumstances in which the police were obliged to give Mr. Surhoff a Prosper warning. These are not circumstances in which Mr. Surhoff clearly expressed a desire to speak to counsel, made duly diligent efforts to exercise that right and then threw up his hands and gave up. In those circumstances, the additional caution of a Prosper warning is called for. The additional Prosper warning is not called for on the facts of this case where I am satisfied that Mr. Surhoff made no efforts to call counsel and did not want to. [Emphasis added].

[48] In effect, the trial judge held that Mr. Surhoff never invoked his right to counsel in the first place and, in any event, he was not duly diligent in exercising that right. It was, therefore, not a case like Prosper where the accused genuinely wanted to speak to counsel, made failed attempts to reach counsel, and then changed his mind after repeated good faith attempts.

[49] Earlier in his Reasons, the trial judge had carefully reviewed the evidence relating to the right to counsel issue (at paras. 44-6, 54, 57, 64-5, 73 and 78). There is no suggestion that this review of the evidence was inaccurate or that the trial judge misapprehended evidence in relation to the s.10(b) issue. In summary, the trial judge’s review of the evidence was as follows:

• when Cst. Mohr advised Mr. Surhoff of his s.10(b) rights in the ambulance at 11:31 pm, Mr. Surhoff “did not respond other than to repeat that he would have the police officers’ jobs.” Cst. Mohr asked Mr.hoff “if he wanted to call a lawyer but he just yelled and swore”;
• at the hospital, according to Cst. Mohr, Mr. Surhoff calmed down and “he asked to speak to a lawyer and wanted to speak to his wife, but when the officers tried to talk to him, he would get angry all over again. They asked who his wife was and if he had a lawyer, but Mr. Surhoff just got more upset, at one time calling the officers fascists”;
• Cst. Gonsalves, who could understand some Spanish, testified that Mr. Surhoff “asked to speak to his wife” and gave Cst. Gonsalves his wife’s phone number. Cst. Gonsalves then called Mrs. Surhoff on a hospital telephone and let Mr. Surhoff speak to her “briefly in Spanish”;
• Cst. Wynia testified, that “Mr. Surhoff had said he had a lawyer and wanted to speak to a lawyer” and that a hospital phone was brought into his room. At this point, “Mr. Surhoff started yelling and screaming again, saying he did not need a lawyer, that he just wanted to speak to his wife and that his wife was his lawyer.” The police allowed Mr. Surhoff to speak to his wife “but not in privacy because he was so unstable.” Cst. Wynia explained that “Mr. Surhoff was violent and loosely restrained with possible weapons readily at hand” in his hospital room. Cst. Wynia testified that, “Mr. Surhoff was offered a chance to speak to duty counsel after talking to his wife, but yelled back that he only wanted to talk to his wife”;
• the breathalyzer technician, Cst. Hodkin, testified that Mr. Surhoff’s “principal concern” was his “desire to speak to his wife.” Cst. Hodkin “wanted to make sure that Mr. Surhoff had a chance to speak to counsel … but Mr. Surhoff said he did not want to speak to a lawyer”;
• Mr. Surhoff testified that he had “no recollection of having been given his rights to counsel” but that “he had a lawyer’s card in his pocket … he had asked for his wallet so he could get the lawyer’s card, although this was not put to the officers in cross-examination.”

[50] I am satisfied that the above review of the evidence by the trial judge was fair and accurate. Ms. Wadsworth’s starting premise for this ground of appeal, as noted previously, is that Mr. Surhoff did invoke or assert his right to counsel at some point, contrary to the trial judge’s ultimate findings. Ms. Wadsworth relies on the evidence of Cst. Mohr and Cst. Wynia on this point. I have reviewed the transcript of their evidence and I am satisfied that Ms. Wadsworth’s premise is not sound.

[51] Cst. Mohr’s evidence in-chief was that Mr. Surhoff would “sit up … twisting his arms, twisting his body … trying to get out of his hand restraints … a lot of incoherent yelling, swearing,” during the time period when he was restrained on a bed in his hospital room. On occasion, “when he would calm down … he talked of requesting a lawyer and wanted to speak to his wife. And when we tried to engage in conversation at that point he would get angry all over again, and then try to, again, get out of his restraints … we tried to converse with him to see exactly, to get some more information, who’s your wife? Do you have a lawyer? But these questions weren’t answered. Again, he just rose into an agitated state again before we could do anything like that.” In cross-examination, Cst. Mohr’s evidence was to similar effect: “when he started saying he would like to talk to a lawyer and to call his wife we attempted to converse with him to say, ‘Do you have a lawyer? What’s your wife’s name and number?’ At which point he just got angry. Immediately when we started asking him questions he just would get angry and try to get out of his restraints, telling us to fuck off or he’ll sue us, and then he would just continually repeat himself” [Emphasis added].

[52] Cst. Wynia’s evidence in-chief was that Mr. Surhoff “did demand a lawyer” but “when the nurse did bring the phone in, he just erupted, yelling and screaming at us, stating at that time he didn’t need a lawyer, he was just going to call his wife, and his wife was his lawyer.” The police allowed Mr. Surhoff to speak with his wife on the phone in Spanish for about five minutes. In cross-examination, Cst. Wynia returned to this topic. He agreed that Mr. Surhoff said “he would like to speak to a lawyer” and that “a phone was brought in for him to be able to speak to a lawyer” but then, “he indicated he did not want to talk to a lawyer, he wants to talk to his wife, and that she is his lawyer … We offered to call, he said no, I only want to talk to my wife.” After Mr. Surhoff was allowed to speak to his wife, Cst. Wynia “asked him if he wanted to make any more calls, if he wanted Duty Counsel now … He just yelled that … ‘I only wanted to talk to my wife’.” When cross-examined about whether he gave a “Prosper warning” at this final stage of his interaction with Mr. Surhoff, Cst. Wynia explained that he was not familiar with this legal term but that he had “offered to call a lawyer for him again. He yelled, ‘I only wanted to talk to my wife.’ At that, I ended it.” [Emphasis added].

[53] In my view, Cst. Mohr’s and Cst. Wynia’s evidence, as set out above, does not provide a proper basis for the submission that Mr. Surhoff asserted or invoked his right to counsel, as required by the s.10(b) case law. On the contrary, their evidence supports the trial judge’s conclusion that Mr. Surhoff “made an informed choice not to exercise his right to counsel” and that “his back and forth on that issue is not consistent with him being duly diligent in exercising that right.”

[54] A long line of authority from the Supreme Court has placed the primary obligations concerning s.10(b) rights on the police. The initial informational duty (advising the detainee of s.10(b) rights) rests solely on the police and the subsequent implementation duties (providing a reasonable opportunity to exercise s.10(b) rights and refraining from eliciting evidence) also rest solely on the police. See: R. v. Bartle, supra.

[55] However, there are two aspects of the s.10(b) framework of rights and duties, where obligations are placed on the detainee. Furthermore, they are both essential obligations. In their absence, the police implementation duties are either not triggered or they are suspended. The two obligations placed on a detainee are as follows:

• first, the detainee must assert, invoke, or trigger the right in some fashion. This requirement dates back to R. v. Manninen (1987), 34 C.C.C. (3d) 385 at 391-3 (S.C.C.). Lamer J., as he then was, gave the unanimous judgement of the Court and held that the accused in that case had “clearly asserted … his desire to consult his lawyer.” Lamer J. adopted the reasons of Laskin J., as he then was, in R. v. Brownridge (1972), 7 C.C.C. (2d) 417 at 436 (S.C.C.) to the effect that police implementation duties concerning a detainee’s right to counsel arise “upon his request to use the telephone for that purpose.” Lamer J. similarly adopted R. v. Esposito (1985), 24 C.C.C. (3d) 88 at 97 (Ont. C.A.) to the effect that it is the accused’s request that triggers the police implementation duties. In Esposito, Martin J.A. held as follows: “If the suspect states that he wishes to retain counsel all questioning must cease until he has been afforded the opportunity of consulting counsel.” Shortly after Manninen was decided, the Court returned to the topic of a detainee’s obligation to assert s.10(b) rights in R. v. Baig (1987), 37 C.C.C. 181 at 183 (S.C.C.). In a unanimous judgement, the Court held that “there are no correlative duties triggered and cast upon them [the police] until the accused, if he so chooses, has indicated his desire to exercise his right to counsel.” Two years later, in R. v. Ross and Leclair (1989), 46 C.C.C. (3d) 129 at 134-6 (S.C.C.), Lamer J. gave the majority judgement and further addressed this topic. He stated that police implementation duties arise in relation to a detainee “who so wishes a reasonable opportunity to exercise the right to retain and instruct counsel without delay.” Applying that principle to the facts of the case, Lamer J. stated: “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” with an identification line-up [Emphasis added]. When Bartle, supra was decided, some five years later, Lamer C.J.C. again stated on behalf of the majority that what triggers police implementation duties is where “a detainee has indicated a desire to exercise this right.” The subsequent case law has consistently affirmed this view, that the detainee must express “a desire to exercise this right” before any police implementation duties arise. See: R. v. Taylor (2014), 2014 SCC 50, 311 C.C.C. (3d) 285 at paras. 24-6 (S.C.C.); R. v. Backhouse (2005), 194 C.C.C. (3d) 1 at paras. 76-81 (Ont. C.A.); R. v. Owens, 2015 ONCA 652.
• second, a detainee must also be reasonably diligent in exercising s.10(b) rights. This further obligation of the detainee was first developed in R. v. Tremblay (1987), 37 C.C.C. (3d) 565 (S.C.C.). It was a drinking and driving case and the accused was “violent, vulgar, and obnoxious”, in response to a breath sample demand, and he was “stalling when he was given the telephone to contact a lawyer.” Lamer J. gave the unanimous judgement of the Court and decided the case on the basis of s.24(2). However, he went on to state a general s.10(b) principle, as follows: “if a detainee is not being reasonably diligent in the exercise of his rights, the correlative duties … imposed on the police … are suspended and are not a bar to their continuing their investigation and calling upon him to give a sample of his breath.” This “reasonable diligence” requirement has been repeatedly re-stated in the subsequent case law. In R. v. Black (1989), 50 C.C.C. (3d) 1 at 13 (S.C.C.), Wilson J. gave the unanimous judgement of the Court and described it as follows:

A rider is attached to these police obligations, namely, that the accused must be reasonably diligent in attempting to obtain counsel if he wishes to do so. If the accused person is not diligent in this regard, then the correlative duties imposed upon the police to refrain from questioning the accused are suspended.

The formulation of the principle that has emerged from Tremblay and Black is that the detainee must exercise “reasonable diligence in attempting to contact counsel” [Emphasis added]. See, e.g.: R. v. Evans (1991), 63 C.C.C. (3d) 289 at 305 (S.C.C.); R. v. Brydges (1990), 53 C.C.C. (3d) 330 at 341 (S.C.C.); R. v. Willier (2010), 2010 SCC 37, 259 C.C.C. (3d) 536 at 549 (S.C.C.). One Supreme Court case, where this obligation was directly in issue, was R. v. Smith (1989), 50 C.C.C. (3d) 308 at 314-315 (S.C.C.). Lamer J. gave the majority judgement in that case. The accused had been arrested in the evening for robbery and then declined to attempt any call to his lawyer because of the late hour. In these circumstances, the police continued to question him. Lamer J. held that there was no s.10(b) violation. He reasoned as follows:

The rights set out in the Charter, and in particular the right to retain and instruct counsel, are not absolute and unlimited rights. They must be exercised in a way that is reconcilable with the needs of society. An arrested or detained person cannot be permitted to hinder the work of the police by acting in a manner such that the police cannot adequately carry out their tasks.

The situation would be very different if, as in the case of R. v. Ross, supra, the appellant had tried to contact his lawyer but had failed in his attempt. The appellant, in these circumstances, would have been justified to ask for a delay until the opening of offices in the morning. However, his decision to not even try to contact his lawyer is fatal, in my view, and prevents him from establishing that he was reasonably diligent in the exercise of his rights. The burden of proving that it was impossible for him to communicate with his lawyer when the police offered him the opportunity to do so was on the appellant. [Emphasis added].

[56] As I read O’Donnell J.’s reasons in the present case, he found that Mr. Surhoff failed to establish compliance with both of the above two obligations. This was essentially a factual issue, in my view, and O’Donnell J.’s findings were reasonable on the record that was before him.

[57] As to the first obligation, the great weight of the evidence was to the effect that Mr. Surhoff’s main wish was to call his wife and, after speaking to her, he no longer wished to exercise what had been a more subordinate desire, namely, to call counsel. At best, the facts of the present case were addressed in Ross and Leclair, supra where Lamer J. described the obligation as one where the accused must “assert his right to instruct counsel” and must not revoke the assertion (“absent a clear indication that he had changed his mind”). In this case, the evidence was weak as to whether Mr. Surhoff ever asserted a desire to speak to counsel, independent of an over-riding desire to speak to his wife. Furthermore, the evidence was clear and unequivocal that he later “changed his mind”, assuming he did initially wish to speak to counsel.

[58] As to the second obligation, concerning reasonable diligence in exercising s.10(b) rights, there was strong evidence that Mr. Surhoff was aggressive and abusive, as in Tremblay, and that he made no effort to make a telephone call to his lawyer, as in Smith, for example, by giving the police his lawyer’s telephone number or by letting the police call duty counsel. In short, there was abundant evidence from which O’Donnell J. could infer a lack of reasonable diligence. See: R. v. Beuk, where Hill J. found a lack of reasonable diligence on somewhat similar facts to the present case. Also see: R. v. Richfield (2003), 178 C.C.C. (3d) 23 (Ont. C.A.) where the Court addressed refusals to speak to duty counsel in the context of drinking and driving cases.

[59] The final s.10(b) issue is whether the “additional informational obligation on the police”, described in R. v. Prosper, supra at para. 44, applies in this case. There is no serious dispute, on the facts of the case, that the police did not give a “Prosper warning” to Mr. Surhoff after he declined any further telephone calls.

[60] The Appellant’s argument on this point is that once a detainee asserts his right to counsel, and then subsequently changes his mind, the police must carry out the “additional informational requirement” set out in Prosper. In my view, this is an erroneous formulation of the rule in Prosper. It has always been the law, at least since Ross and Leclair, that a detainee can “change his mind” about wanting to speak to a lawyer. There was no suggestion in Ross and Leclair that some additional warning was required when a detainee changes his/her mind about asserting s.10(b) rights. Indeed, in R. v. Prosper, supra at para. 45, Lamer C.J.C. cited Ross and Leclair in relation to this common sense proposition, stating: “once a detainee asserts the right there must be a clear indication that he or she has changed his or her mind, and the burden of establishing an unequivocal waiver will be on the Crown: Ross, at pp. 135-6” [Emphasis added]. It is settled law that the issue of waiver is not reached, as this passage in Prosper suggests, unless the detainee has first invoked or asserted the s.10(b) right and has been reasonably diligent in exercising the right. See: R. v. Owens, supra at para. 22; R. v. Beuk, supra at paras. 75-7.

[61] What the rule in Prosper addresses is a much narrower situation than merely changing one’s mind about contacting counsel. In Prosper, the accused asserted his right to counsel after being arrested for drinking and driving. Over a 37 minute period, he placed 15 calls to a list of 12 Legal Aid lawyers. None of the lawyers responded to Prosper’s calls due to a Legal Aid job action that was occurring at the time. Prosper could not afford a private lawyer and so he agreed to provide a breath sample without first speaking to counsel. In these circumstances, Lamer C.J.C. gave the judgement of a four member plurality of the nine member court (one of the dissenting judges, Major J., agreed with “the principles expressed by the Chief Justice,” and so it appears to be a judgement of five members of the Court on the “Prosper warning” point of law). Lamer C.J.C. stated (at para. 44):

In circumstances where a detainee has asserted his or her right to counsel and has been reasonably diligent in exercising it, yet has been unable to reach a lawyer because duty counsel is unavailable at the time of detention, courts must ensure that the Charter-protected right to counsel is not too easily waived. Indeed, I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. This additional informational requirement on police ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up. [Emphasis added].

[62] The two phrases in Prosper, under-lined above, are somewhat inconsistent. The second phrase states a broader proposition than what is stated in the first phrase. Ms. Wadsworth presumably relies on the second under-lined phrase in support of her submission that Prosper applies whenever an accused asserts s.10(b) rights and then has a change of mind.

[63] The subsequent case law has clarified any ambiguity concerning the scope of the rule in Prosper. In two cases, both of which are binding, the Ontario Court of Appeal and the Supreme Court of Canada have limited the need for a “Prosper warning” to the particular facts of that case (which is essentially what Lamer C.J.C. stated in the first of the two phrases under-lined above).

[64] The Ontario Court of Appeal addressed this issue in R. v. Smith and Stacey (1999), 134 C.C.C. (3d) 453 at paras. 15 and 21-7 (Ont. C.A.). The accused Smith was arrested for murder. He initially stated that “he wanted to call a lawyer” but he then “changed his mind and unequivocally stated that he did not wish to speak to a lawyer.” The police proceeded to take a statement from him. As in the present case, the argument was that the police violated s.10(b) by failing to give a “Prosper warning” after Smith had changed his mind. Rosenberg J.A. (Moldaver and Feldman JJ.A. concurring) disagreed and stated:

In my view, this represents too literal a reading of Prosper. The purpose of the additional informational obligations is to ensure that the apparent waiver is free and voluntary. A free and voluntary waiver must be an informed one. In the words of Lamer C.J.C., the additional informational requirement “ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up”. The informational obligations imposed by Prosper must be read in the context of that case. Prosper was arrested for impaired driving on a Saturday afternoon. He was then taken to the police station for a breathalyzer test. He indicated that he would take the test but first wanted to speak to a lawyer. Prosper was given access to a telephone and made approximately 15 calls in an unsuccessful attempt to contact counsel from a list that had been provided to the police. This took 37 minutes after which the arresting officer gave the appellant a telephone book with a list of lawyers in the area. At that point, the accused said that he could not afford legal fees and shortly thereafter, the accused indicated that he would take the test.

Thus, in Prosper, the detainee had attempted to exercise his right to counsel, had been unsuccessful, and a substantial period had elapsed since he had been informed of his rights. It was in that context, where, to quote Lamer C.J.C. at p. 274, the detainee “has asserted his right to counsel and has been reasonably diligent in exercising it, yet has been unable to reach a lawyer because duty counsel is unavailable at the time of detention” that the courts must ensure that the right to counsel is not too easily waived. Thus, the additional informational obligations are imposed.

Prosper instructs the courts to be sensitive to the rights of an accused who it is alleged has waived his rights. On the other hand, the courts are not required to adopt a wholly mechanistic and artificial approach to the s.10(b) rights. The circumstance of a detainee who has repeatedly attempted to access counsel and been frustrated in that attempt over a significant period is entirely different from this case. Here we have an accused who changed his mind without making any attempt to be reasonably diligent and whom the judge has found to be “eager to broadcast” [his] story. [Italics of Rosenberg J.A. in the original; under-lining added].

[65] In the subsequent case of R. v. Willier, supra at paras. 31-2 and 37-9, the Supreme Court refused to extend the need for a “Prosper warning” to a case where the accused was unable to reach counsel of choice but had agreed to speak to Legal Aid duty counsel. The Court held that Prosper was limited to its particular facts. McLachlin C.J.C. and Charron J. gave the judgement of five members of the Court (the two concurring judgements of the other four members of the Court did not disagree with the main judgement on the Prosper issue, so it appears to be a unanimous decision of the full Court on this point). After quoting para. 44 from Prosper, McLachlin C.J.C. and Charron J. stated the following:

Thus, when a detainee, diligent but unsuccessful in contacting counsel, changes his or her mind and decides not to pursue contact with a lawyer, s. 10(b) mandates that the police explicitly inform the detainee of his or her right to a reasonable opportunity to contact counsel and of the police obligation to hold off in their questioning until then. This additional informational obligation, referred to in this appeal as the duty to give a “Prosper warning”, is warranted in such circumstances so as to ensure that a detainee is informed that their unsuccessful attempts to reach counsel did not exhaust the s. 10(b) right, to ensure that any choice to speak with the police does not derive from such a misconception, and to ensure that a decision to waive the right to counsel is fully informed.

The circumstances prompting this Court to articulate the additional informational duty in Prosper are fundamentally different from those in the case at hand. As noted above, a Prosper warning is warranted in circumstances where a detainee is diligent but unsuccessful in contacting a lawyer and subsequently declines any opportunity to consult with counsel. Section 10(b)’s provision of a reasonable opportunity to consult with counsel is a fundamental guarantee aimed at mitigating a detainee’s legal vulnerability while under state control. It affords detainees the chance to access information relevant to their self-incrimination and liberty interests: Bartle. The Prosper warning ensures that detainees are aware that their right to counsel is not exhausted by their unsuccessful attempts to contact a lawyer. This additional informational safeguard is warranted when a detainee indicates an intent to forego s. 10(b)’s protections in their entirety, ensuring that any choice to do so is fully informed. In Prosper, the detainee ceded any opportunity to mitigate his legal disadvantage and benefit from the protections afforded by s. 10(b), triggering the additional informational warning. [Italics in the original; under-lining added]

[66] In light of the above clarification of Prosper, set out in Smith and Stacey and in Willier, I am satisfied that O’Donnell J. did not err in holding that Prosper had no application to the present case. Mr. Surhoff had not been “diligent but unsuccessful in contacting a lawyer” and so there was no need to caution him that “unsuccessful attempts to reach counsel did not exhaust the s.10(b) right.” In my view, the police were not obliged to comply with the “additional informational obligation” required by Prosper.

[67] For all these reasons, the second ground of appeal concerning Mr. Surhoff’s s.10(b) Charter rights cannot succeed.

F. THE CONVICTION FOR ASSAULT RESISTING ARREST

[68] The third ground of appeal alleges that the trial judge erred in convicting the Appellant on the count of assault resisting arrest. It will be recalled that this count related to events in the LCBO parking lot, when Cst. McCarthy arrested Mr. Surhoff. It was submitted in the Appellant’s Factum, but not pressed during oral argument, that the trial judge failed to address some of the essential elements of this Count Two offence.

[69] The argument in the Appellant’s Factum is that the trial judge failed to make a finding of intentional application of force by Mr. Surhoff, as required by the law of assault. In his testimony, Mr. Surhoff had admitted only reflexive resistance to the police, in self-defence, which may not amount to an assault.

[70] The Appellant is correct that the offence charged in Count Two was assault with intent to resist or prevent lawful arrest, contrary to s. 270(1)(b) of the Criminal Code. It requires proof of an actual “assault”, as defined in s.265 of the Criminal Code. The offence charged was not the less serious offence of resisting or obstructing a police officer, contrary to s.129 of the Criminal Code, which does not require proof of an assault.

[71] In R. v. Wolfe (1974), 20 C.C.C. (2d) 382 (Ont. C.A.) it was held that applying force as the result of “a reflex action” is not an assault because the element of intention is lacking. In R. v. Hickey, [2004] O.J. No. 199 (C.A.) it was further held that merely resisting, by “pulling his arm away” and “attempting to disengage from physical contact with the police”, is not an assault because there is no intentional application of force. Mr. Surhoff’s account of the altercation with Cst. McCarthy, arguably might have brought him within the ratio of these authorities.

[72] In my view, cases like Wolfe and Hickey do not assist the Appellant on this ground of appeal for two reasons. First, the trial judge clearly rejected Mr. Surhoff’s exculpatory account, and found that it did not raise a reasonable doubt, in relation to the events in the LCBO parking lot when he was arrested by Cst. McCarthy (at paras. 120 and 124). Second, the trial judge equally clearly accepted Cst. McCarthy’s evidence concerning these events and made specific findings that Mr. Surhoff “meant to resist the arrest that Cst. McCarthy was trying to make” and that Mr. Surhoff “was trying to push him off” (at paras. 82 and 124). These are the essential elements of an assault with the requisite intent.

[73] Accordingly, the trial judge made all of the essential findings concerning the offence of assault with intent to resist arrest. This third ground of appeal cannot succeed.

G. CONCLUSION

[74] In this result, the three grounds of appeal relating to the convictions entered at trial are all dismissed. The conviction appeal is, therefore, dismissed. The sentence appeal was not pursued and it too is dismissed.

[75] I would like to thank both counsel for their thorough and helpful submissions.

M.A. CODE J.

Released: April 19, 2016.

COURT FILE NO.: CR-12-30000090-00AP DATE: 20160419 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent -and- ARTURO SURHOFF Appellant REASONS FOR JUDGEMENT M.A. CODE J. Released: April 19, 2016.