CITATION: R. v. Blair, 2017 ONSC 5979

COURT FILE NO.: CR-17-0011

DATE: 2017 Oct 11

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

GRAHAM BLAIR

Appellant

A. Zegouras, for the Crown

L. Adler, for the Appellant

HEARD at Belleville: September 27, 2017

Tranmer J.

DECISION ON SUMMARY CONVICTION APPEAL

1Mr. Blair was convicted of driving “over 80” following a trial in the Ontario Court of Justice.

2His appeal raises two issues. Firstly, he submits that his right to counsel under section 10(b) of the Charter was breached by the police and that the evidence of the breath test results should have been excluded under section 24(2) of the Charter. Secondly, he argues that the trial judge erred in his questioning of the key Crown witness, resulting in an unfair trial and further in permitting the breathalyzer technician to give opinion evidence beyond his limited role as a technician.

3Counsel agreed to argue the first issue and await the reserved decision of the court. Counsel agreed that the second issue could be argued at a later date to be agreed upon as necessary.

Section 10(b) of the Charter Issue

The Facts

4The accused was stopped by Police Officer Sears at 4:42 PM.

5At 4:50 p.m., he provided a breath sample into the roadside screening device, which registered a fail.

6At 4:54 p.m., the officer informed Mr. Blair of the reason for arrest, namely having over the legal limit of alcohol in the blood, and read from his card the right to retain and instruct counsel without delay. When asked if he understood, the accused responded, “no, not really”.

7The officer then, “explained to him that he could call a lawyer and if he didn't know one that we could contact duty counsel”. The accused responded that he did understand and wanted to contact a lawyer. (Transcript, p.10, line 25 to 30). The officer understood this to mean that the accused wanted to call his own lawyer. (Transcript, p. 23, line 0 – 10).

8At 4:54 p.m., the officer read the demand to provide a breath sample.

9The officer then made arrangements for the accused’s vehicle to be towed and requested that another officer attend with the vehicle.

10At 5:01 p.m., the officer left the scene with the accused to travel to the police detachment. On the way, he stopped to speak with another police officer and to provide her with the keys to the accused’s vehicle.

11The officer and the accused arrived at the detachment at 5:36 p.m.

12Once at the detachment, the officer again asked the accused if he wanted to speak to a lawyer. He responded that he did not. The officer said that this was the practice of his to make sure that someone in custody has the opportunity to exercise his rights to a lawyer. The accused responded, “no”. The officer asked him if he would like to contact duty counsel. He responded that he would like to do that.

13The accused was lodged in a cell.

14The officer placed the call to duty counsel at 5:41 p.m.

15Duty counsel returned the call at 5:52 p.m. The officer went to get the accused from the cell and bring him to the telephone so he could speak to duty counsel. The call ended at 5:56 p.m. The officer testified that it was really a very short period of time that the accused would have actually been on the phone with duty counsel.

The Law

16In R. v. Manninen, 1987 CanLII 67 (SCC), [1987], 1 S.C.R. 1233, at p. 1241, the Supreme Court of Canada made it clear that,

21 … s. 10(b) imposes at least two duties on the police in addition to the duty to inform the detainee of his rights. First, the police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay. The detainee is in the control of the police and he cannot exercise his right to counsel unless the police provide him with a reasonable opportunity to do so. This aspect of the right to counsel was recognized in Canadian law well before the advent of the Charter. …

The duty to facilitate contact with counsel has been consistently acknowledged under s. 10(b) of the Charter… In Dombrowski, the Court held that, where a telephone is available at an earlier occasion, there is no justification for delaying the opportunity to contact counsel until arrival at the police station.

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

23 Further, s. 10(b) imposes on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel. The purpose of the right to counsel 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.

17The appellant also refers to R. v. George, 2004 CanLII 6210 (ON CA), [2004] O.J. No. 3287 (OCA), where police did not inform the respondent of his right to counsel, at any point during the wait for the screening device. The officer was not aware that the accused had a cell phone and the accused did not tell the officer that he had a cell phone and he did not ask to call anyone. The accused testified on the voir dire that if the officer had given him the opportunity to call a lawyer, he would have done so”. The court stated at para. 42:

In the instant case, the officer was aware that there would likely be a delay of fifteen to twenty minutes before the screening device arrived. In the face of that information, it was incumbent upon the officer to take reasonable steps to facilitate the respondent detainee's right to consult counsel. Such steps would involve asking the detainee whether he had a cellular telephone. In this case, the evidence is that the respondent would have used his cellular telephone and called his lawyer. …

The Court of Appeal confirmed that this accused’s section 10 (b) rights had been breached.

18The appellant cites R. v. Maciel, 2016 ONCJ 563, as an example of what a police officer should do when an accused says he wishes to speak to a lawyer. The officer asked the accused if he had a specific lawyer that he wanted to call.

19Similarly, in R. v. Mand, 2016 ONCJ 765, when given his rights to counsel, including the right to duty counsel, the accused responded, “I'm going to call my lawyer”. The officer asked if he had a lawyer to which the accused responded yes. The accused said he would have to call his wife which led the officer to understand that he would have to call his wife to get the name or number of his lawyer.

20The decision of the Supreme Court of Canada in R. v. Smith, 1989 CanLII 27 (SCC), [1989] 2 SCR 368 stands for the proposition put forward by the Crown in Mr. Blair’s case that there is an onus of due diligence on the part of the accused in connection with exercising his right to counsel. If an accused does not exercise such due diligence, the police officers’ duties in that regard are suspended. In that case, upon his arrival at the police station, the accused expressed his intention to communicate with his lawyer. The police gave him a telephone book and gave him access to a telephone. This is a further example of steps taken by police officers in the exercise of their due diligence as required under section 10(b).

21The Smith case and the others that stand for the proposition that the Charter duties imposed on the police are suspended if the accused fails to exercise his rights to counsel with due diligence, do not contradict or derogate from the duties imposed initially upon arrest or detention upon the police officer under s. 10(b).

22In my view, the initial inquiry by the court must be as to whether the police fulfilled or were in the course of fulfilling the requirements imposed upon them by law under section 10(b). It is only if such is the case that an accused can make an informed decision as to exercising his rights to counsel and only then is he in a position to take steps to fulfill the due diligence obligation on him to exercise those rights or not.

23In R. v. Taylor, 2014 SCC 50, [2014] 2 SCR 495, the police officer testified that he did not think about giving the accused access to a phone at the scene and it was his fault that it did not happen at the scene. He said it was not a practice that they normally did. The court stated that the duty to inform a detained person of his right to counsel arises immediately upon arrest or detention 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. Whether a delay in facilitating access to counsel is reasonable is a factual inquiry”. (para. 24). The court said that the duty imposed upon the police to inform and facilitate rights to counsel includes “allowing the detainee upon his request to use the telephone for that purpose if one is available”. (para. 25). The court held that the rights guaranteed that the individual will have access to a phone to exercise his right to counsel at the first reasonable opportunity, the earliest practical opportunity. “To suggest, as the trial judge did, that it is presumptively reasonable to delay the implementation of the right to counsel for the entire duration of an accused time waiting for and receiving medical treatment in a hospital emergency ward, without any evidence of the particular circumstances, undermines the constitutional requirement of access to counsel “without delay” ”.

The decision of the trial judge

24The decision of the trial judge in this case on this issue is set out at pages 47 and 48 of the transcript.

25I would note firstly, that the learned justice erred at line 5, page 47, when he said that Mr. Blair made it quite clear that he was “not” read the rights to counsel at the scene. The transcript at paragraph 15, page 40 is the testimony of the accused acknowledging that he was read his right to counsel. That was not an issue at trial.

26I would note secondly, that the learned trial judge at paragraph 15, page 47 indicates that there was a statement made “which possibly could be interpreted to mean he meant a private lawyer”. This is not supported by the transcript evidence either. The officer testified at page 10 line 25 that “I explained to him that he could call a lawyer and “if he didn't know one” that we could contact duty counsel”. The accused responded that he wanted to contact a lawyer. This reply to the question asked by the officer clearly indicated that he knew a lawyer. In cross-examination, the officer acknowledged that he understood that the accused wanted to call his own lawyer when at the scene. (Page 23, line 0 to 5).

Decision on Appeal

27With respect, the learned trial judge did not address or adjudicate upon the initial inquiry in issue, namely whether the police fulfilled their duty as imposed upon them by s. 10(b), in particular, the implementation duty. His reasons appear to indicate that the only issue he adjudicated upon in this regard was whether or not the accused exercised due diligence in exercising his right to counsel. At page 47, line 20 to 25, he states, “I am satisfied that Mr. Blair was in a position, had he wished to do so, that he could have easily indicated that he wanted to speak to Mr. Plater, who was a local real estate lawyer, and who he now says he had in mind.” He then goes on at page 48 to state, “At no time did Mr. Blair ever indicate, number 1. that he wished to speak to a specific lawyer; number 2. that he was not satisfied with the legal advice that he had gotten; and number 3. at no time did he indicate that he had a cell phone on his presence and wished to be able to communicate with the personal lawyer at any time”.

28As I have indicated, it is my opinion that the initial inquiry must be in respect of whether or not the police officers have fulfilled or were in the course of fulfilling the obligations imposed upon them by law under s. 10(b). That issue was squarely before the learned trial judge, and there was no finding in fact or in law in that regard. The question of suspension of fulfilling that obligation in the face of the failure of the accused to exercise diligence can only arise if there has been a determination that the police fulfilled or were in the course of fulfilling their s. 10(b) legal obligations.

29The learned trial judge did not address, in fact or in law, the evidence of the arresting police officer which included that he did not ask the accused for the name of the lawyer that he wished to call, he did not ask the accused if he had his own cell phone on his person, he did not provide the accused with the opportunity to contact his lawyer while at the scene (although there was time for the officer to take the steps that he described, while at the scene), and he did not ask the accused when back at the detachment why he then wished to speak to duty counsel rather than his own lawyer or whether he was satisfied with the telephone call, which was admitted to be very brief, with duty counsel. Furthermore, the learned trial judge did not consider in his reasons, the police officer’s evidence as to why he asked the accused, once back at the police detachment if he wanted to speak to a lawyer, when the officer already knew from the scene that in fact the accused did wish to speak to a lawyer that he knew.

30At the bottom of page 48, the learned trial justice states, “The issue of whether he was properly informed of his rights or the reasons for his arrest…” in fact just addresses the reasons for arrest, and does not add to his rights to counsel reasons.

31In my view, this is an error on the part of the learned trial judge which necessitates a new trial on the section 10(b) the issue and, as necessary, a consideration under section 24(2) of the Charter.

32The appeal is allowed on this issue and a new trial is ordered.

33If counsel wish to argue the second issue raised in the appeal, they may schedule same in consultation with the trial coordinator.

Honourable Mr. Justice Gary W. Tranmer