Court File and Parties

COURT FILE NO.: 13-1654 DATE: 20170413 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Bothwell

BEFORE: J.C. Corkery

COUNSEL: Christopher O’Connor, Counsel, for the Defendant/Appellant Amanda Kok, Counsel, for the Crown/Respondent

HEARD: August 15, September 30, 2016

Appeal ENDORSEMENT

[1] On August 19, 2014, Peter Bothwell was convicted by Cameron J. of operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood pursuant to s. 253(1)(b) of the Criminal Code, R.S.C., 1985, c. C-46. At trial, in a blended voir dire, Mr. Bothwell claimed that the police had violated his rights to retain and instruct counsel as protected by s. 10(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (“Charter”). The trial judge rejected this argument. In this appeal, Mr. Bothwell submits that the trial judge erred in law in dismissing his Charter motion.

A. The Facts

[2] On August 15, 2013, Mr. Bothwell was driving when his vehicle was stopped by the police. The police officer who stopped Mr. Bothwell, Officer MacArthur, believed he had been drinking and demanded Mr. Bothwell complete an approved screening device test. Mr. Bothwell complied and failed the test. The officer cautioned Mr. Bothwell and made a demand for a sample of his breath. Mr. Bothwell asked to speak to a friend, someone Mr. Bothwell believed had paralegal training.

[3] Officer MacArthur transported Mr. Bothwell to the Havelock Community Police Office where he would meet the breath technician, Officer Eberhardt. The Havelock Community Police Office is a small office with only three rooms: a main room, a computer/testing room where the Intoxilyzer is located, and a bathroom.

[4] As the Havelock Office did not have a separate phone booth, the officers initially decided to allow Mr. Bothwell to use his cell phone in the bathroom to contact his friend for legal advice, as they did not want to leave him alone in the room with the Intoxilyzer. Mr. Bothwell attempted to speak with his friend in the bathroom, but his cell phone kept disconnecting. While in the bathroom, with the door closed, he could hear the officers talking outside the bathroom. He whispered when speaking on his cell phone.

[5] Mr. Bothwell informed the officers that he was unable to complete his conversation with his friend due to his cell phone disconnecting. He requested to speak with duty counsel.

[6] As the only landline telephone in the office was in the computer room, he was allowed to use this room to call duty counsel. When asked, “You were given privacy? They left the room?”, Mr. Bothwell replied “Yeah.” He agreed that he was not interrupted, that no officer ended the call early, and that the call came to a mutual end between him and duty counsel.

[7] When the call with duty counsel ended, Mr. Bothwell’s friend called back. He was permitted to speak with his friend in the computer room using his cell phone first and then the land line.

[8] Mr. Bothwell was left alone in the computer room and told to knock on the door when he was finished. He testified that, in the computer room with the door closed, he could still hear the officers speaking to each other and he was concerned that his conversation with counsel could be heard. He testified that he lowered his voice when speaking with his friend. However, he knew that the officers were not listening to him because he could hear the officers talking. He acknowledged that he had to knock on the door when he was finished.

[9] Mr. Bothwell never made any complaint about his privacy to either officer or expressed any concern that he could be overheard. Mr. Bothwell overheard the officers discussing where they could best provide him with privacy for his calls with counsel. Officer Eberhardt testified that they knew someone was speaking when Mr.Bothwell was on the telephone in the computer room. However, at no time did either officer overhear any conversation Mr. Bothwell was having.

[10] The trial judge found that Mr. Bothwell did not express a concern about privacy to the officer. She found that the officers did not hear what Mr. Bothwell was saying and that there was no evidence that they were actively listening. She concluded that she could not say on a balance of probabilities that Mr. Bothwell’s ability to get advice was inhibited by a lack of privacy. The trial judge recognized and considered the “far from ideal” situation of the Havelock Community Police Office.

After having difficulty actually speaking with his friend, because of dropped cell calls, Mr. Bothwell spoke with duty counsel for legal advice and then spoke further with his friend after the call to duty counsel. Mr. Bothwell felt that because he could hear the officers speaking outside the room he was in they might be able to hear him. This made him uncomfortable and he lowered his voice as a result, talking in a low voice or whisper at times because he did not want to be overheard. There is no evidence that Mr. Boswell’s ability to get advice from a lawyer, the duty counsel or even from his friend was affected by the auditory proximity of the officers.

[11] The trial judge recognized Mr. Bothwell had reasonable concerns about his privacy. However, she concluded that these concerns appeared to have been remedied by him keeping his voice down:

I accept that it was reasonable for Mr. Bothwell to have concerns about the privacy of his call to counsel; duty counsel and to his friend, but on the evidence his concerns appear to have been remedied by him lowering his voice. [Emphasis added.]

B. Issue

[12] The right to counsel under s. 10(b) of the Charter includes the right to consultative privacy. Mr. Bothwell was entitled to privacy when exercising his right to counsel. In this case, the trial judge found that he received the privacy he was entitled to by lowering his voice. The issue is whether she erred in doing so.

C. Analysis

[13] Conversation with a friend is not protected by s. 10(b), unless perhaps it is for the purpose of retaining counsel (R. v. Crossman; R. v. Underhill (1992), 10 O.R. (3d) 625 (Ct. J. (Gen. Div.))).

[14] Mr. Bothwell’s conversation with duty counsel was conducted in private. The finding of the trial judge that the officers did not hear that conversation is not challenged. However, Mr. Bothwell may still establish a breach of s. 10(b) were he to establish, on a balance of probabilities, that he believed that his conversation with counsel was not private and that such a belief was reasonably held in the circumstances (R. v. Cairns, at para. 10). Mr. Bothwell must prove such a breach on a balance of probabilities.

[15] The appellant submits that the trial judge’s finding that Mr. Bothwell received the privacy he was entitled to by lowering his voice is an error of law. The Crown submits that although the issue of whether or not an accused person was provided with a reasonable opportunity to exercise his or her right to counsel appears to be a mixed question of fact and law, the Court of Appeal has characterized it as “essentially a finding of fact” (R. v. Burley, at para 18). For this appeal to succeed, I must therefore be satisfied that the finding of the trial judge that Mr. Bothwell received the privacy he was entitled to by lowering his voice was a palpable and overriding error.

[16] In R. v. Playford (1987), 63 O.R. (2d) 289 (C.A.), at para. 47, Goodman J.A. stated that, in his opinion, privacy is not protected when it can only be preserved by whispering. However, he went on to explain that it is still necessary to determine whether “the circumstances are such that an accused would reasonably believe that his conversation to retain or instruct counsel could be overheard by police” (at para. 47). The particular circumstances of each case must be considered. This is consistent with the Court of Appeal’s decision in Cairns.

[17] In the circumstances of this case, it was open to the trial judge to find that by lowering his voice, Mr. Bothwell was able to remedy his reasonably held concern and conduct his conversation with duty counsel in private. It was not a palpable and overriding error for the trial judge to conclude that Mr. Bothwell had not met the burden of proving a breach of s. 10(b) on a balance of probabilities.

[18] The appeal is dismissed.

J.C. Corkery J.

Date: April 13, 2017