citation: "R. v Touzin, 2017 ONSC 3027" parties: "Her Majesty the Queen v. Gaetan Touzin" party_moving: "Her Majesty the Queen" party_responding: "Gaetan Touzin" court: "Superior Court of Justice" court_abbreviation: "ONSC" jurisdiction: "Ontario" case_type: "appeal" date_judgement: "2017-05-16" date_heard: "2017-04-24" applicant:

• "Her Majesty the Queen" applicant_counsel:
• "J. Rumleskie" respondent:
• "Gaetan Touzin" respondent_counsel:
• "T. Tichinoff" judge:
• "J. A. S. Wilcox" summary: > The Crown appealed the acquittal of the respondent on a charge of operating a motor vehicle with more than 80 milligrams of alcohol per 100 millilitres of blood. The trial judge had found a breach of the respondent's s. 10(b) Charter rights, specifically regarding the implementation of the right to counsel, leading to the exclusion of incriminating statements and subsequent acquittal. The appeal court found that the trial judge erred in law by imposing an obligation on police to implement rights to counsel before the detainee expresses a desire to contact counsel, and by excluding statements that were not elicited through questioning but blurted out. The appeal was allowed, the acquittal set aside, and a conviction entered, with the matter adjourned for sentencing. interesting_citations_summary: > This decision clarifies the scope of police duties under s. 10(b) of the Charter, particularly distinguishing between the informational and implementational components of the right to counsel. It reaffirms that police are not obliged to proactively ask a detainee if they wish to speak to counsel, nor to cease questioning until a waiver is obtained, unless the detainee expresses a desire to consult counsel. The court emphasizes that the onus is on the detainee to assert their right to counsel after being informed, absent constitutional deficiencies in understanding or physical incapacity. The ruling relies on Supreme Court of Canada jurisprudence, including R. v. Taylor, R. v. Manninen, and R. v. Woods, and distinguishes from R. v. Knoblauch. final_judgement: The appeal is allowed, the acquittal on the "over 80" charge is set aside, and a conviction is entered. The matter is adjourned to set a date for sentencing. winning_degree_applicant: 1 winning_degree_respondent: 5 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2017 decision_number: 3027 file_number: "CR-15-00000033-AP" source: "https://www.canlii.org/en/on/onsc/doc/2017/2017onsc3027/2017onsc3027.html" keywords:
• Charter of Rights
• Right to Counsel
• Section 10(b)
• Impaired Driving
• Over 80
• Breath Samples
• Exclusion of Evidence
• Psychological Detention
• Informational Rights
• Implementational Rights
• Waiver
• Criminal Code areas_of_law:
• Criminal Law
• Constitutional Law
• Evidence cited_cases: legislation:
  • title: "Criminal Code" sections:
    • "253(1)(b)"
    • "254(2)"
    • "258"
  • title: "Canadian Charter of Rights and Freedoms" sections:
    • "8"
    • "10(a)"
    • "10(b)"
    • "24(2)"

case_law: - title: "R. v. Woods, 1989 ONCA 7192" url: "https://www.canlii.org/en/on/onca/doc/1989/1989canlii7192/1989canlii7192.html" - title: "R. v. Taylor, 2014 SCC 50" url: "https://www.minicounsel.ca/scc/2014/50" - title: "R. v. Suberu, 2009 SCC 33" url: "https://www.minicounsel.ca/scc/2009/33" - title: "R. v. Sinclair, 2010 SCC 35" url: "https://www.minicounsel.ca/scc/2010/35" - title: "R. v. Bartle, 1994 SCC 64" url: "https://www.minicounsel.ca/scc/1994/64" - title: "R. v. Evans, 1991 SCC 98" url: "https://www.minicounsel.ca/scc/1991/98" - title: "R. v. Brydges, 1990 SCC 123" url: "https://www.minicounsel.ca/scc/1990/123" - title: "R. v. Luong, 2000 ABCA 301" url: "https://www.canlii.org/en/ab/abca/doc/2000/2000abca301/2000abca301.html" - title: "Brownridge v. The Queen, 1972 SCC 17" url: "https://www.canlii.org/en/ca/scc/doc/1972/1972scc17/1972scc17.html" - title: "R. v. Ross, 1989 SCC 134" url: "https://www.minicounsel.ca/scc/1989/134" - title: "R. v. Prosper, 1994 SCC 65" url: "https://www.minicounsel.ca/scc/1994/65" - title: "R. v. Willier, 2010 SCC 37" url: "https://www.minicounsel.ca/scc/2010/37" - title: "R. v. Hollis, [1992] B.C.J. No. 266" - title: "R. v. Elgie, 1987 BCCA 2817" url: "https://www.canlii.org/en/bc/bcca/doc/1987/1987canlii2817/1987canlii2817.html" - title: "R. v. Dewhirst, unreported, September 6, 1990, Vancouver Registry No. CA009219" - title: "R. v. Cabrera, [2002] O.J. No. 5832" - title: "R. v. Baig, 1987 SCC 40" url: "https://www.minicounsel.ca/scc/1987/40" - title: "R. v. Manninen, 1987 SCC 67" url: "https://www.minicounsel.ca/scc/1987/67" - title: "R. v. Knoblauch, [2017] S.J. No. 15" - title: "R. v. Papadopoulos" url: "https://www.canlii.org/en/on/onsc/doc/2006/2006canlii49053/2006canlii49053.html"

COURT FILE NO.: CR-15-00000033-AP DATE: 20170516 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – GAETAN TOUZIN Respondent

COUNSEL: J. Rumleskie, for the Crown T. Tichinoff, for the Respondent

HEARD: April 24, 2017

DECISION ON APPEAL

WILCOX, J

INTRODUCTION

1The Crown appealed against the acquittal of the respondent, Gaetan Touzin, by Her Honour Justice M. Rocheleau of the charge of operating a motor vehicle with more than 80 milligrams of alcohol per 100 millilitres of blood, contrary to section 253(1)(b) of the Criminal Code. The grounds for appeal as stated in the Notice of Appeal are:

1. The Honourable Trial Judge erred in law by finding that the accused's rights under section 10(b) of the Charter of Rights and Freedom were breached.
2. The Honourable Trial Judge misapprehended the facts by finding that the accused was not asked if he wished to speak to a lawyer and by finding that Police Constable Graeme Ettles believed he did not have grounds to make an approved screening device demand without the accused's admissions;
3. The Honourable Trial Judge erred in law by effectively imposing an obligation of the police to give rights to counsel before a failed approved screening device test was undertaken.
4. The Honourable Trial Judge erred in law by excluding statements of the accused that were introduced as grounds to make an approved screening device demand.
5. The Honourable Trial Judge erred in law by finding that Police Constable Graeme Ettles had no authority and no grounds to make an Approved Screening Device demand.
6. The Honourable Trial Judge erred in law by failing to do a section 24(2) of Charter of Rights and Freedoms analysis before excluding the Approved Screening Device breath results and the Intoxilyzer 8000c breath results.

2However, the Crown withdrew ground number 5 at the outset of the hearing.

OVERVIEW

3Gaetan Touzin was charged with impaired driving and over 80 arising out of an incident which took place on July 8, 2013. Trial took place July 21, 2014 and May 25, 2015. The decision was reserved and was delivered on November 9, 2015. The trial judge acquitted Touzin of the impaired driving charged. The appellant takes no issue with Her Honour’s finding on that charge. At trial, defence counsel brought a Charter application asking for the breath samples collected to be excluded under s. 8, 10(a) and 10(b). In relation to the over 80 charge, the trial judge dismissed the s. 8 and s. 10(a) arguments, but found a breach under s. 10(b) of the Charter. In particular, the trial judge found that there was a s. 10(b) breach of Touzin’s rights to counsel because police failed to implement his rights to counsel. As a result, Touzin’s statements to police prior to the approved screening device (ASD) demand could not be used by the officer to inform his reasonable suspicion. Without these admissions, the police no longer had grounds to make an ASD demand. Without the ASD result, the police no longer had grounds for the respondent’s arrest. For the same reason the Crown was unable to rely on the statutory presumption found in section 258. No s. 24(2) Grant analysis was performed. The respondent was ultimately acquitted on the over 80 charge.

FACTS

4The Crown in its appellant’s factum provided a “brief review of the evidence at trial” which was largely accepted by the respondent, subject to comments which will be addressed in due course. The Crown’s overview is as follows, using its paragraph numbering:

8. A number of civilian witnesses testified at trial. Broadly stated, their evidence was that at approximately 5:15p.m. they observed Mr. Touzin enter the business known as Pete's Small Engine's (sic) located on Highway 65E in the City of Temiskaming Shores. The witnesses believed that Mr. Touzin was impaired by alcohol and driving his vehicle. As a result of their observations of the civilian witnesses contacted police to make a report.
9. At approximately 17:30 police receive the impaired driving complaint.
10. Cst. Ettles immediately departs the New Liskeard detachment in an attempt to intercept the suspect vehicle. As Cst. Ettles leaves the detachment he is met by a third party who advises that Mr. Touzin was just at Pete small Engine (sic) and reeked of booze.
11. Cst Ettles locates the suspect vehicle at Mr. Touzin's address at 17:36. Cst. Pouliot arrives at the residence at approximately the same time.
12. As police approach the residence, both officers make observations of the suspect vehicle which is consistent with it being recently operated
13. Police were greeted by a male who answered the door later identified as Mr. Touzin. After a brief conversation, they were invited inside.
14. Cst. Ettles told Mr. Touzin: that he was investigating a driving complaint that may involve him and, depending on the interview, he could be charged with impaired driving or over 80.
15. Cst. Ettles also provided informational rights to counsel. Cst. Ettles told Mr. Touzin that he can speak to a lawyer, including a free lawyer, that they would stop the interview and get a hold of a lawyer for him. The toll free number was not expressly provided to Mr. Touzin, however Mr. Touzin was made aware that he could call a lawyer for free.
16. A conversation takes place, where Mr Touzin admits to coming back from Pete's Small Engines. Based on the admission, Cst. Ettles makes an ASD demand where a Fail result is obtained.
17. Mr. Touzin also testified at trial. His testimony differed in terms of what transpired at his residence when police arrived.

Trial Judge's Decision

18. The Trial Judge began by summarizing her findings of fact in the case over the course of 7 pages. For the purpose of this appeal, the Trial Judge accepted the following facts
    1. Ms. Miron reported to police that the accused drove away from Pete's Small Engine and that he had alcohol on his breath
    2. After receiving the report from Cst. Plante, Cst. Ettles tried to intercept the vehicle between New Liskeard and Haileybury or go to the accused's residence in order to investigate the potential impaired driving
    3. While on route, Cst. Ettles was stopped by Mr. Cook who advised Mr. Touzin left Pete's Small Engine with his truck and that he had a strong odour of alcohol on his breath
    4. While on route, Cst. Ettles received the the suspect's name, address and description of the motor vehicle over the radio
    5. The suspect vehicle was not intercepted on route and Cst. Ettles arrived at Mr. Touzin's residence in Haileybury at 5:36p.m.
    6. The suspect motor vehicle was located in the driveway of Mr. Touzin's residence. As the officer walked by the vehicle towards the door, he noticed wet tire tracks behind the tires, tingling sound from the exhaust and heat coming from the engine. All of these observations led the officer to believe the suspect vehicle was recently driven
    7. Cst. Ettles knocked on the door. A male identifying himself as Gaetan Touzin answered
    8. Cst. Ettles advised Mr. Touzin that he was investigating a complaint
    9. Mr. Touzin told the officers he needed to go to the bathroom, closed the door and came back within a minute or so
    10. When Mr. Touzin returned, he invited the officer's (sic) inside
    11. Once inside Cst. Ettles explained that he was investigating a charge of impaired or over 80. The officer cautioned Mr. Touzin about providing a statement and gave rights to counsel. The officer did not read this information from the standard card. Mr. Touzin said he understood. Mr. Touzin did not say whether or not he wanted to speak to counsel
    12. Cst. Ettles told Mr. Touzin the complaint he received from Pete Small Engines, observations the officer of the vehicle in the driveway and the odour of alcohol the Cst. Ettles detected coming from Mr. Touzin's breath
    13. Cst. Ettles wanted to rule out other possibilities regarding the identity of the driver, prior to forming his grounds and making an ASD demand
    14. Mr. Touzin admitted that he had one beer and that he was at Pete's Small Engine
    15. Based on these admissions, Cst. Ettles made an ASD demand
    16. Mr. Touzin complied with the ASD demand and registered a fail
    17. Rights to counsel, caution and breath demand were read to Mr. Touzin at that time
    18. Mr. Touzin was transported back the the detachment where he spoke with duty counsel and ultimately provided 2 samples of his breath
    19. The Section 10(b) analysis focused on Mr. Touzin's two admissions that (i) he drank a beer and (ii) he had just drove from Pete's Small Engine.
    20. However the Trial Judge recognized that there was other information available to the officer to suspect Mr. Touzin had alcohol in his body, aside from the admission. Therefore, the main issue in the case was Mr. Touzin's statement that he "just came from Pete's Small Engine."
    21. Notwithstanding Mr. Touzin invited the officers inside his residence, the Trial Judge accepted Mr. Touzin's testimony that he thought he was psychologically detained at the time he made those admissions: It was based on this admission that the officer made the demand for the screening device and, requested that the accused accompany him to the cruiser to complete the breath test. It is at this point that the officer felt that the accused was detained. He may have been detained from the onset, but when he was advised of the reason for the detention or the reason why the police were there and that long two times explanation and the Cautions and the explanation of the Rights to Counsel, to me, would have given the accused the impression that he was, in fact, detained at that point in time.
    22. Later on in the decision the Trial Judge re-iterates her earlier finding However, there are other breaches that have been raised and with respect to detention, as I indicated, I find that at the time the police officers told the accused about the circumstances, why they were there, and got into the the whole Rights to Counsel and Cautions and all of that with him, that of course at that time he was detained
    23. Based on this finding of investigative detention, the Trial Judge held that police were obliged not only to provide the informational component to Rights to Counsel, but also to implement those rights prior to obtaining evidence from Mr. Touzin: As I indicated, there was no evidence that the implementation part of the rights to Counsel was ever offered to the accused, and there was certainly no indication that the accused ever waived his right to speak to counsel at that point
    24. This led the Trial Judge to conclude that there had been a section 10(b) breach: The allegation, however, that there was a breach of section 10(b), which is the Rights to counsel section, I find that it has been breached by the officer. The Right to Counsel is not only the right to be informed that you have the Right to counsel, there is also an implementation aspect to it, and in this case there was no evidence whatsoever that after going through that whole explanation with the accused twice to make sure he understood, that the officer ever took the next step to ask the accused if he wished to contact counsel. There is no evidence that the accused waived his Right to Counsel. There is no evidence that the officer did anything to give him an opportunity to reach counsel before he continued questioning. I think the law is clear that until there is waiver, police must stop asking questions and getting statements from the accused. This was not established here and therefore, I find that the statements that were made after the Right to Counsel was not fully implemented or the implementation part was not followed by the officer, that those statements are excluded. They include his acknowledgement that he had one beer, and his acknowledgement that he had been to Pete’s and had driven.
    25. Without Mr. Touzin's admission that he had been driving, the Trial Judge found that the officer did not have grounds to make a valid ASD demand under section 254(2). As a result, Cst Ettles was precluded from relying on the "fail" result in forming his grounds to arrest the Respondent. The resulting breath samples obtained were then ruled inadmissible under section 24(2).
    26. No section 24(2) Grant analysis was performed by the Trial Judge.

5The respondent accepted as substantially correct the facts set out in paragraphs 8 to 12 and 16 to 26 of the appellant’s factum. However, the respondent disputed the facts set in out in paragraphs 13 to 15 of that factum, saying the interaction is not as simple as Mr. Touzin attending the door, having a brief conversation with police and inviting them in to his home.

6Instead, the Respondent favoured the facts as the Trial Judge has accepted them in Paragraph 18 of the Applicant's factum. Mr. Touzin answered the door to police officers who advised that they were investigating a traffic complaint. Mr. Touzin attended the bathroom while leaving the officers outside. When Mr. Touzin returned, he invited the officers inside to prevent insects from getting in the house.

7Also, the Respondent indicated that paragraphs 14 and 15 of the Applicant's factum and its corresponding evidence in Paragraph 18: 11-13 of the Applicant's factum, exclude Mr. Touzin's initial failure to comprehend his rights as explained to him. When Cst. Ettles explained to Mr. Touzin why they were there, and explained his rights to him (not off a standard card), he had to re-explain all of this information as Mr. Touzin, who has a cognitive condition called central apnea, failed to comprehend it in the first instance.

8The Respondent also relied upon the following facts for the purposes of adding context to the issues raised. Facts as accepted by the Trial judge include that there was no evidence as to whether or not Mr. Touzin indicated in one way or another if he wanted to call a lawyer at that point when he was deemed to have understood the explanation by the officer. Mr. Touzin was not asked if he wanted to call a lawyer. Therefore there was no evidence that he waived calling a lawyer and also no evidence that he wished to implement this right. There is no evidence that he was in fact given an opportunity to implement this right.

9These additional facts were not controversial, and served to round out the factual situation.

ISSUES TO BE DECIDED

10The Crown’s factum distilled two main grounds of appeal:

1. The Crown submits that the trial judge erred in law by finding that police had a duty to implement rights to counsel prior to Touzin invoking those rights, and
2. In the alternative, should the appellant court find that there was a breach under s. 10(b), the Crown would submit that the trial judge erred in failing to perform a s. 24(2) Grant inquiry and / providing sufficient reasons for her decision to exclude the evidence under s. 24(2) of the Charter.

RESPONDENT’S POSITION

11The respondent submitted that:

1. The trial judge did not err in law by finding that police had a duty to give the accused the opportunity to implement his right to counsel prior to continuing questioning.
2. The trial judge did not err in finding that the s. 10(b) rights were infringed.
3. Had the judge applied s. 24(2) Grant inquiry, the results would have been substantially the same.

DID THE TRIAL JUDGE ERR IN LAW IN FINDING THAT THERE WAS A BREACH OF MR. TOUZIN’S S. 10(b) IMPLEMENTATIONAL RIGHTS?

12The Crown submits that the Trial Judge erred in law by holding that police have an obligation to implement rights to counsel before an accused invokes his/her rights to counsel.

13The Crown noted that rights to counsel consists of two parts: one informational, the other is implementational. The Trial Judge accepted that Cst. Ettles gave Mr. Touzin the informational component of the Rights to Counsel. However the Trial Judge went further and found that police failed to implement those rights. In particular the Trial Judge found:

He told him that he could be facing a charge of impaired or over 80. He indicated that he cautioned him and advised him of his rights to counsel. He asked the accused if he understood, but the accused did not fully understand so he repeated the entire information, the reason why he was there. He re-explained the caution and the Right to counsel and advised him he did not have to say anything but if he did it could be used as evidence. He did not read this information from the standard card. I believe he indicated at that at that point the accused appeared to understand. However there was no evidence as to whether or not the accused indicated one way or the other if he wanted to call a lawyer at that point. There is no evidence that he waived calling a lawyer and also no evidence that he wished to do so.

14Most important in the Crown’s estimation is that the Trial Judge found there is no evidence that Mr. Touzin wanted to speak to counsel upon being informed of his rights to counsel.

15The Crown submitted that Police are only obliged to provide informational rights to counsel upon detention - there is no obligation on police to implement rights to counsel until the detainee expresses a desire to contact counsel.

RESPONDENT’S POSITION

16In support of its position, the respondent submitted that the Police gave and repeated to the respondent a rambling explanation of why they were there, the potential charges and their consequences, and the respondent’s Charter rights, which was not clear. The respondent said he understood, but respondent’s counsel questioned what it was out of the police’s explanation that the respondent understood. Then, there was allegedly no opportunity given for the respondent to express his desire to speak to counsel before the police continued their questioning of him. The respondent was not asked if he wanted to, so it was unknown whether he waived his rights to counsel.

17The respondent’s counsel also pointed to the evidence that the respondent gave at trial about his condition, central sleep apnea. He had testified that, as a result of this condition, his cognition skills had been diminished and he had been off work as a teacher since about four years prior, on disability. In addition, he had been arrested earlier that day on an unrelated theft matter and had allegedly consumed alcohol before the police arrived. This, respondent’s counsel submitted, was indicative of the respondent’s state of mind when the police arrived.

18With regard to the respondent’s counsel’s submissions about the respondent’s state of mind, and the implication, as I understand it, that the respondent therefore had a reduced capacity to understand his rights to counsel, I note the following. The evidence about the condition and its effects was scanty. It was not used in argument at trial by the defence. There was nothing said about it in the examination or cross-examination of Cst. Plante who had dealt with the accused earlier in the day on the theft matter. The Crown had asked at trial a series of questions of Cst. Ettles about the level of the accused’s understanding throughout the police’s interaction with him from points of view including language ability, the influence of alcohol, and mental health. The officer indicated that he had asked the accused repeatedly if he understood, that the accused had indicated he did, and that the officer was satisfied that the accused had an operating mind. The only qualification was to note that it was a bit odd that the accused had returned to Pete’s that day (from which business the accused had been charged for allegedly stealing a lawnmower that day. The present case had arisen when the accused had returned to there and the smell of alcohol was noted on him.) Cst. Ettles was not cross-examined on this point beyond being asked if the accused had given any indication that he understood, to which Ettles respondent that the accused said he understood, referring to “all of it”.

19Cst. Pouliot, who had been with Cst. Ettles as the latter dealt with the respondent at the Touzin residence testified that he was in close proximity to the respondent there. He noted that there might have been slight signs of impairment, but did not observe anything other than glossy eyes. The respondent did not appear to him to be confused.

20The breath technician that dealt with the respondent later that day, Cst. Adams, testified that the respondent’s eyes appeared watery and blood shot and his face was flushed and red. The respondent was read and understood the caution, secondary caution and breath demand. In answer to the questions for the alcohol influence report the respondent indicated that he had consumed only 1 or 2 beers. (This contrasts with the respondent’s testimony that he also consumed vodka shortly before Cst, Ettles and Pouliot arrived at his residence). In response to questions about his personal health, nothing was said about any cognition difficulties. Cst. Adams did form the opinion that the respondent was impaired by the consumption of alcohol.

21Defence counsel’s examination-in-chief of Ms. Touzin at trial did not touch on any cognitive difficulties. The Crown in cross-examination asked her about the respondent’s central sleep apnea. She answer that “it causes him to be temporarily confused, maybe”, and that it might affect him more in a stressful situation.

22The only comment about central sleep apnea by the trial judge in her decision was in dealing with the impaired charge in which she only mentioned it. It does not appear to have been much of a factor, if any, in her decision to find the respondent not guilty of impaired driving. Rather, she found and the Crown conceded that the evidence of impairment was too weak to convict on.

23In view of the evidence on point, I find no basis for the implication that the respondent had cognitive difficulties that somehow affected his ability to understand what the police were telling him to any extent that should be taken into account here. There is no evidence of the extent or effect of any cognitive difficulties. Mr. Touzin appears to be able to function in normal daily activities, apart from the bald indication that he is off work because of a disability. His evidence and that of his wife is not very illuminating. The various police officers that dealt with him through the day did not notice and were not made aware of any such difficulties.

24Furthermore in this regard, I note again that the respondent had been arrested and processed by Cst. Plante only a few hours earlier on a theft charge. Cst. Plante testified about that in this case. Although the evidence on point is quite cryptic, it appears that the respondent was given his rights to counsel then and refused them. It follows that he was somewhat knowledgeable about the rights to counsel when this matter arose. It is apparent from R v. Woods, 1989 ONCA 7192, [1989] O.J. No. 532, that such experience may be taken into account in assessing an accused’s understanding of his rights to counsel.

DETENTION

25Neither the appellant nor the respondent took issue with the trial judge’s finding that Touzin was psychologically detained. On this point, the trial judge stated:

I find that at the time the police officers told the accused about the circumstances, why they were there, and got into the whole rights to counsel and cautions and all of that with him, that of course at that time he was detained.

26The Crown acknowledged that s. 10(b) of the Charter applied upon the respondent’s detention, and that this was not a road side stop of the respondent’s motor vehicle in which the police would be permitted to detain a motorist and administer the ASD test without providing rights to counsel under s. 10(b).

CHARTER S. 10(b)

27The law with respect to s. 10(b) was reviewed by the Supreme Court of Canada in R. v. Taylor, 2014 SCC 50, [2014] S.C.J. No. 50, paragraphs 20 to 26 as follows:

20Section 10 of the Charter states:

10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; and (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

This appeal engages s. 10(b). The issue is whether the police complied with the duty to facilitate Mr. Taylor’s request to speak to counsel “without delay”.

21The purpose of the s. 10(b) right is “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights”: Manninen, at pp. 1242-43. The right to retain and instruct counsel is also “meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination”: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 40. Access to legal advice ensures that an individual who is under control of the state and in a situation of legal jeopardy “is able to make a choice to speak to the police investigators that is both free and informed”: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 25.

22In R. v. Bartle, 1994 SCC 64, [1994] 3 S.C.R. 173, Lamer C.J. explained why the right to counsel must be facilitated “without delay”:

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 . . . . Under s. 10(b), a detainee is entitled as of right to seek such legal advice “without delay” and upon request. . . . [T]he 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. [Emphasis added; p. 191.]

23He also confirmed the three corresponding duties set out in Manninen which are imposed on police who arrest or detain an individual:

(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).

(Bartle, at p. 192, citing Manninen, at pp. 1241-42; R. v. Evans, 1991 SCC 98, [1991] 1 S.C.R. 869, at p. 890; and R. v. Brydges, 1990 SCC 123, [1990] 1 S.C.R. 190, at pp. 203-4.)

24The duty to inform a detained person of his or her right to counsel arises “immediately” upon arrest or detention (Suberu, at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee’s request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000), 2000 ABCA 301, 271 A.R. 368, at para. 12 (C.A.)). Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.

25This means that to give effect to the right to counsel, the police must inform detainees of their s.10(b) rights and facilitate access to those rights where requested, both without delay. This includes “allowing [the detainee] upon his request to use the telephone for that purpose if one is available” (Manninen, at p. 1242). And all this because the detainee is in the control of the police and cannot exercise his right to counsel unless the police give him a reasonable opportunity to do so (see Brownridge v. The Queen, 1972 SCC 17, [1972] S.C.R. 926, at pp. 952-53).

26Until the requested access to counsel is provided, it is uncontroversial that there is an obligation on the police to refrain from taking further investigative steps to elicit evidence (R. v. Ross, 1989 SCC 134, [1989] 1 S.C.R. 3, at p. 12; R. v. Prosper, 1994 SCC 65, [1994] 3 S.C.R. 236, at p. 269).

28With respect to paragraph 23 of Taylor, above, the first duty in an informational one, while the second and third duties are implementational. R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, para. 30.

29In R. v. Woods, 1989 ONCA 7192, [1989] O.J. No. 532, the Ontario Court of Appeal stated that:

It is fundamental that once the detainee has been informed of his right to counsel, some reasonable time should be allowed to permit him to consider his rights before any further questioning begins, if for no other reason than to be satisfied that the detainee fully understands his rights.

30In R. v. Hollis (BCCA), [1992] B.C.J. No. 266, the British Columbia Court of Appeal dealt with the failure to assert the rights to counsel as follows:

(iii) The failure to assert the right

Most of the jurisprudence on s. 10(b) has been developed in the context of the issues of informed decision making or the exercise of the right itself once it has been asserted. But it will be apparent that lying between these two operational phases of the right to counsel is a third, namely the process involving the making of the decision whether to exercise the right and the assertion of that decision. It is important, when discussing the rights under s. 10(b), not to include this process as part of the "exercise" of the right to counsel, since as a result of the decisions in such cases as Baig, Tremblay, and Smith (1989), that expression has come to mean the efforts made by a detainee to contact and speak with counsel once the right has been asserted and the opportunity to "exercise" the right has been provided.

With respect to the making of the decision, I would adopt the conclusion of the Ontario Court of Appeal in R. v. Woods which recognized a duty on the part of the police to provide the detainee with a reasonable time within which to decide whether to exercise the right. In the absence of any circumstances suggesting a constitutionally deficient understanding of the right, one would necessarily expect that decision to be made reasonably quickly. What is a reasonable time within which to make such a decision will depend upon the circumstances of the case in which the issue arises, but it will not in any event be a long time.

Since it cannot be asserted until the decision to exercise it has been made, it follows that the principle in the Woods case applies equally to the assertion by a detainee of the right to counsel. But what are the legal consequences of a failure to communicate the decision either to waive or to exercise the right? That, of course, was the precise situation which prevailed in this case. And it was the very situation addressed in Anderson and Baig, and as well by this court in R. v. Elgie (1987), 1987 BCCA 2817, 48 M.VR. 103 (B.C.C.A.), and R. v. Dewhirst, unreported, September 6, 1990, Vancouver Registry No. CA009219 [summarized 10 W.C.B. (2d) 607].

A detainee, who has been adequately informed of his or her right to counsel under s. 10(b) of the Charter, is not obliged to exercise the right to retain and instruct counsel. Indeed, it is the very essence of a "right" that its exercise must be the result of free choice. It therefore follows that the police are not obliged to assume that the detainee will exercise the right to counsel, nor can they be expected to guess whether a decision has been made to exercise or to waive it.

In the absence of any evidence from which it could reasonably be inferred either that the detainee does not have a constitutionally sufficient understanding of the right, or that he is physically incapable of asserting it, it is completely consistent with a purposive interpretation of s. 10(b) to put the onus on the detainee to assert the right to counsel before any duty to facilitate its exercise is imposed on the police. Thus, in the absence of any communication on the subject from the detainee, the police are entitled to proceed with their investigation in the same manner as they would be if the right had been waived.

31The final two paragraphs quoted from Hollis were explicitly accepted and adopted by the Ontario S.C.J. in R. v. Cabrera, [2002] O.J. No. 5832.

32In summary, then, I understand the law to be as follows with respect to s. 10(b). Upon arrest or detention, the police are to provide the detainee with the informational component. The detainee is then to be given reasonable time to decide whether to exercise his rights to counsel, during which time the police are not to question him. Absent evidence that the detainee lacks a constitutionally sufficient understanding of his right, or that he is physically incapable of asserting it, the onus is on the detainee to assert the right. If he does not, the police may proceed with their questioning of him.

ANALYSIS

33The trial judge in various places in her reasons for finding that the respondent’s rights to counsel were not fully implemented by the police, leading to the exclusion of his statements, indicated:

1. There was no evidence one way or another of whether the respondent wanted to call a lawyer;
2. There was no evidence that the respondent was asked if he wanted to call a lawyer;
3. There was no evidence that the respondent waived calling a lawyer;
4. There was no evidence that the respondent was given the opportunity to contact counsel before the police continued questioning.

34Respondent’s counsel pressed the point that there was no evidence that the respondent had been asked if he wanted to consult a lawyer, as if this was part of the implementation portion. I have reviewed a chain of Supreme Court of Canada cases starting with R. v. Baig, 1987 SCC 40, [1987] 2 S.C.R. 537, to R. v. Taylor, 2014 SCC 50, [2014] S.C.J. 50 in which the rights to counsel, particularly with respect to implementation, have been dealt with and have not found any statement that that is a requirement. The closest to doing so was R. v. Manninen, 1987 SCC 67 par. 22, which indicated that, once the detainee indicated a desire to contact counsel the police should have offered him a phone to facilitate that contact. This issue is dealt with in R v. Knoblauch, [2017] S.J. No. 15, a decision of the Saskachewan Court of Queen’s Bench on an appeal. After noting that the issue had been considered in very few cases previously, it held that an arresting officer was obliged to ascertain a detainee’s wishes as to whether he wanted to call a lawyer, in order to ascertain whether the implementational duty was being triggered. In doing so, it reversed the trial court’s decision, which was based on an Ontario Superior Court of Justice decision in R. v. Papadopoulos. Although well-reasoned, the decision is not binding on me and varies from the Papadopoulos decision, so I decline to follow it. Therefore, to the extent that the trial judge relied on the police’s failure to ask if the respondent wanted to call lawyer, I find she was in error.

35Given that the law, as summarized above, allows the police to proceed with questioning if, once the informational component of the rights to counsel is given, the detainee has had time to decide whether to contact counsel, and the detainee has not indicated a wish to do so, I find that the trial judge was also in error in stating that the police must stop asking questions and getting statements from the respondent until he had waived his right to counsel.

36Perhaps the most important point arises from the requirement not question a detainee until the rights to counsel are fully implemented. That is, in this case, the statements in question were not made in response to questioning. They were blurted out by the respondent while Cst. Ettles was providing him with information about the investigation and the respondent’s rights. Even the respondent’s counsel conceded that there was no questioning involved, but he submitted that the statements resulted from a police technique involving providing the respondent with information in order to elicit a response. Although that might not be outside the realm of possibility in some cases, I see no evidence of it here.

37In this regard, I note that, in its decision in Knoblauch, the court framed the question more broadly than simply whether the police were required to ask a detainee of he wanted to call a lawyer, preferring a requirement that the police ascertain, in any manner, a detainee’s wishes as to whether he wanted to call a lawyer. It explained that there might be cases where asking the question is unnecessary, giving as an example the situation where a detainee advises of his decision without being asked. The relevance here is that, even if the police were required to ascertain Touzin’s wishes, his blurting out of the statements in question precluded that, in effect indicating his wishes.

38It follows that I find that it was error to exclude the statements.

39Once the statements were made, the police had what they believed they needed in order to make the ASD demand, and matters followed from there.

40Respondent’s counsel conceded at the outset that, if the statements are allowed into evidence, there are grounds for the ASD demand, and then for the breath sample demand, leading to conviction on the over 80 charge.

41Therefore, the acquittal on the over 80 charge is set aside and a conviction entered. The matter has been adjourned to the May 25, 2017 assignment court to set a date for sentencing.

42In view of this, it is not necessary to deal with the second ground of appeal involving the failure to perform a s. 24(2) Grant inquiry.

J. A. S. Wilcox