COURT FILE NO.: SCA(P) 928/18
DATE: 20190118
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ZUBAIR MUMTAZ
Respondent
Patrick Quilty, for the Crown Appellant
Jordan Gold, for the Respondent
HEARD: December 7, 2018
REASONS FOR JUDGMENT
WOOLLCOMBE J.
Introduction
[1] This is an appeal by the Attorney General for Ontario against the February 27, 2018 acquittal of the respondent for the offence of “over 80”. The acquittal followed the ruling of the trial judge excluding from evidence, pursuant to s. 24(2) of the Charter, the breath samples taken from the respondent after his arrest.
[2] It was the defence position at trial that there were violations of the respondent’s ss. 7, 8, 9 and 10(b) Charter rights. The trial judge rejected the respondent’s argument that there were violations of ss. 7, 8 and 9. However, he concluded that there had been two violations of s. 10(b) of the Charter.
[3] On appeal, the Crown makes three arguments. First, the Crown submits that the trial judge erred in finding that the officer’s refusal to permit the respondent “to call someone to possibly obtain the name of a lawyer he could consult” breached his s. 10(b) rights. Second, the Crown says that the trial judge erred in concluding that the officer’s statement to the respondent that he could call his own lawyer, duty counsel or no lawyer misinformed the respondent and breached his s. 10(b) Charter rights. Finally, the Crown argues that the trial judge erred in excluding the breath samples under s. 24(2) of the Charter.
Brief Factual Background
[4] Some brief factual background is needed to consider these grounds of appeal.
[5] The respondent crashed his car into the back of a tractor trailer while driving at the speed limit on Highway 401 in Mississauga. He was investigated at the roadside and given a roadside screening demand. He registered a fail and was arrested. On his arrest, he was read his rights to counsel from the pre-printed card in the officer’s notebook. This includes the following:
It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free legal advice from a Legal Aid lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid plan for assistance. 1-800-265-0451 is a number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice now.
[6] In response, the respondent asked to speak with a friend, Constable Bhargava. Constable Kokot testified that when the respondent asked to speak with this individual, whom Constable Kokot knew was an OPP officer, he explained to the respondent his options for counsel of choice. He told the respondent that the police could assist him in obtaining his own lawyer, or if he did not have his own lawyer, they could facilitate a call with duty counsel. Or he could choose not to speak with a lawyer at all.
[7] Under cross-examination, it was Constable Kokot’s evidence that what he had said was “You choose – you can have your own lawyer of choice. You can have duty counsel, which is a service that I or Officer Sikora would facilitate for them, which is free of charge, and private and confidential. Or the choice not to speak with any lawyer is okay as well”. It was Constable Kokot’s evidence that he did not believe that this had communicated the idea that the respondent had to have a lawyer he had used in the past.
[8] The respondent asked to speak with duty counsel.
[9] The respondent never told the police why he wanted to speak with his police officer friend. Constable Kokot said that had the respondent said that he wished to obtain assistance in identifying or contacting counsel, that that would have been something that the police would have been open to facilitating.
[10] Constable Kokot testified that he never considered whether the reason that the respondent wanted to speak with Constable Bhargava was to facilitate obtaining assistance from counsel. He never asked the respondent why he wished to speak to Constable Bhargava.
[11] It was the respondent’s evidence at trial that he thought his friend Constable Bhargava would be able to provide him with the names of a couple of lawyers. He testified that while he never told the police that he wanted to speak to a lawyer after obtaining the name of a lawyer from Constable Bhargava, he felt shut down by police and did not understand that this was an option for him, given what the police did tell him about his right to call his own lawyer or duty counsel or no lawyer.
[12] After a demand was made for the respondent to provide a breath sample, he was taken to the police station. At the police station, the respondent spoke to duty counsel before providing breath samples. He made no complaint about that conversation. He then provided two breath samples, which had readings of 155 and 164 milligrams of alcohol in 100 millilitres of blood.
Did the trial judge err in finding that the officer’s failure to permit the respondent to call a friend violated s. 10(b) of the Charter?
[13] The trial judge found that the respondent was uncertain what to do and had no particular lawyer’s name in mind, but reasonably believed that a police officer friend would likely know several lawyers with whom he could speak.
[14] The trial judge appears to have rejected Constable Kokot’s explanation that it never occurred to him that the respondent wished to speak to Constable Bhargava to facilitate the right to counsel. He said:
First, the context of the request, during the explanation of the rights to counsel, was a clue as to why the defendant wanted to speak to Constable Bhargava. Second, Constable Kokot initially said that he did not think that this was anything more than a chance to seek some assistance, but said during cross-examination this request was also seen as a “bargaining chip” and “something to buy him good faith with us.” Third, if there was any doubt as to what the Applicant meant, the officer was in a good position to clear that up, by simply asking why the Applicant wanted to contact Constable Bhargava, but this simple step was never taken.
[15] After quoting a passage from para. 25 of Durno J.’s decision in R. v. Kumarasamy, [2002] O.J. No. 303, the trial judge stated that he was satisfied on a balance of probabilities that the officer’s refusal to permit the respondent “to call someone to possibly obtain the name of a lawyer he could consult” breached the respondent’s s. 10(b) right.
[16] The Crown submits that the trial judge erred in law in concluding that the officer should have inferred from the respondent’s request to call his police officer friend that he wanted to do so to facilitate contact with counsel. The Crown says that unless a detainee actually indicates that he wishes to contact a non-lawyer to help him reach counsel, the police are not legally obligated to accommodate contact with someone other than counsel.
[17] The respondent submits that the trial judge found as a fact that the officer did infer the reason for the detainee’s request to speak with his friend. Once the officer was aware that the respondent wanted to contact his friend to facilitate contact with counsel, the respondent says that the officer was required to assist in facilitating that contact and that the failure to do so resulted in a s. 10(b) breach.
[18] The defence further submits that even if the trial judge did not find that the officer subjectively recognized the reason for the respondent’s request to call his friend, the trial judge still found that the respondent gave sufficient indication of the reason he wanted to contact his friend to trigger a police obligation to facilitate contact.
[19] Finally, the defence says that the trial judge’s determination as to whether the right to counsel was invoked is a question of fact and that the trial judge’s findings are subject to deference, absent palpable and over-riding error.
[20] Whenever the police arrest or detain an individual, they are required to comply with s. 10(b) of the Charter. As Lamer C.J. summarized in R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at para. 18, s.10(b) requires that the police:
(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).
[21] These principles were more recently affirmed by Abella J., on behalf of the Court, in R. v. Taylor, 2014 SCC 50 at paras. 22-23.
[22] The first of these three rights is informational and relatively straightforward. The duty includes an obligation on the police, if a detainee indicates that he or she does not understand the right, to facilitate an understanding.
[23] The second and third duties are implementational. They are not triggered unless the detainee indicates a desire to exercise his or her right to counsel.
[24] When a detainee expresses a desire to contact counsel, the police are required to facilitate this. As Durno J. held in R. v. Kumarasamy at paras. 25-26:
25 This obligation includes facilitating contact with counsel of choice where a request has been made to speak to a specific counsel. This is so whether the person has counsel's number available or not. It also includes permitting a phone call to a friend or relative to obtain the name of counsel of choice.
26 This is not to say that a detainee is always entitled to make one or a series of calls to friends or relatives. The determination must be made on a case by case basis…
[25] When a detainee makes a request to speak to a third party in order to make contact with a specific counsel, the police are required to provide that detainee with a reasonable opportunity to consult with counsel of choice. However, as Barnes J. recently observed in R. v. Cheema, 2018 ONSC 229 at para. 31, “when a detainee does not tell the police the reason why he or she wishes to speak to a third party, there is no obligation on the police to determine why the police made such a request”.
[26] The decision in Cheema is consistent with a number of earlier appellate authorities. For instance, in R. v. Adams, 1989 CanLII 7161 (ON CA), [1989] O.J. No. 747, Court of Appeal considered whether there had been a s. 10(b) violation by the police refusal to grant the detainee permission to call his mother after his repeated requests to do so. In rejecting the defence position that there was a s. 10(b) violation, Larcourcière J.A., for the Court, held at paras. 23-24:
23 In his ruling on the voir dire, Judge Zalev found that the appellant had been cautioned and advised of his right to counsel after being charged with attempted murder. The trial judge noted that the appellant asked to call his mother while in the police cruiser on route to police headquarters and that the request was repeated later at the police station. The staff sergeant who was on duty at the time, informed the appellant that his call would be arranged as soon as possible. He asked the appellant if the call was urgent, and the appellant replied that it was not and that it could wait. The learned trial judge found that the subsequent written statement given by the appellant to the police was made voluntarily. He also specifically found that in Waltz's request to call his mother, the word "lawyer" was never mentioned.
24 There were no special circumstances in this case which required the police to seek a clarification as to the reason why Waltz, who was sober at the time of the arrest and subsequent interview by police, wished to contact his mother: see Baig. v. The Queen (1987), 1987 CanLII 40 (SCC), 37 C.C.C. (3d) 181 (S.C.C.) and R. v. Manninen (1987), 1987 CanLII 67 (SCC), 34 C.C.C. (3d) 385 (S.C.C.).
[27] Similarly, in R. v. Zoghaib, [2006] O.J. No. 1023, affirming [2005] O.J. No. 5947 (ONSC) the Court of Appeal held:
1 We are in substantial agreement with the analysis of the Summary Conviction Appeal Court. The appellant was fully advised of her right to counsel at the roadside and understood those rights. On the finding of fact made by the trial judge, any subsequent misapprehension by the appellant of her right to contact her own lawyer as opposed to duty counsel was a product of her own thought processes, none of which were conveyed to or known by the officer. The Summary Conviction Appeal Court correctly held that as a matter of law the appellant's unexpressed desire to speak to her own lawyer could not result in a breach of s. 10(b) of the Charter.
[28] In my view, the trial judge fell into legal error in finding a s. 10(b) breach because the police did not permit the respondent to contact Constable Bhargava.
[29] While the question of whether a detainee asserted a desire to consult with counsel is a question of fact and that such a finding is entitled to deference, absent palpable and overriding error (R. v. Owens 2015 ONCA 652 at para. 28), this appeal does not turn on whether or not the respondent asserted a desire to consult with counsel. Plainly, he did indicate such a desire, and was afforded an opportunity to speak with duty counsel.
[30] The real issue is whether in the particular factual circumstances, as the trial judge found them to be, there was a legal obligation on Constable Kokot to facilitate the respondent contacting of Constable Bhargava. This requires consideration of both whether the trial judge found that Constable Kokot knew the reason why the respondent wished to contact his friend and, if such a factual finding was not made, whether in the circumstances that he found did exist, there was such a legal obligation.
[31] The respondent says that the trial judge made a factual finding that Constable Kokot knew that he wished to call his friend Constable Bhargava in order to contact counsel.
[32] The trial judge clearly rejected Constable Kokot’s evidence that it never occurred to him that the reason that the respondent wanted to contact his friend was to facilitate a call to counsel. But, I do not accept the submission that, along with rejecting the officer’s evidence on this point, that there was a positive finding that the officer knew why the respondent wished to contact his friend. Such a factual finding is, in my opinion, absent from the reasons for judgment. If the officer had been aware that the reason that the respondent wished to contact his friend was to facilitate counsel, Constable Kokot would have been required to facilitate communication with Constable Bhargava. But, I see no factual finding that the officer had that awareness.
[33] The respondent submits that even if the trial judge did not make the factual finding that the officer knew why he wished to call Constable Bhargava, the words he used were a sufficient indication of his reason for wanting to call his friend that the police had an obligation to permit him to make the call. Accordingly, it is argued that the trial judge made no error in finding a breach of s. 10(b). The Crown says that in the circumstances, there was no legal obligation on the officer to make inquiries as to the reason the respondent wanted to call Constable Bhargava or to facilitate contact with him.
[34] The trial judge noted that the context in which the respondent told Constable Kokot that he wanted to speak to Constable Bhargava was “a clue” as to why he wanted to speak with him. The trial judge also found that if he had any doubt as to why the respondent wanted to speak with Constable Bhargava, Constable Kokot was well positioned to ask.
[35] In my view, the trial judge erred in law in finding an obligation on the police to facilitate a call with Constable Bhargava in this situation.
[36] While the respondent said he wished to speak with Constable Bhargava in the context of being advised of his right to counsel, he acknowledged that he never advised Constable Kokot why he wished to speak with his friend.
[37] The law is clear that when a detainee makes a request to contact a third party in order to facilitate contact with counsel, the police must facilitate this.
[38] But, when a detainee does not indicate to the police the reason why he or she wishes to contact a third person, there is no legal obligation on the police to permit contact with that third party or to make further inquiries as to the reason the detainee wishes to make contact. No authority was provided suggesting that a request to speak to a third party that is made in the context of a discussion about the right to counsel requires an officer to facilitate contact. Nor was any authority provided to support a position that the police are required to ask why the detainee wants to speak to the third party.
[39] To the contrary, even when requests to speak to third parties were made in the same context as occurred here, as took place in the cases of Cheema, Adams and Zoghaib, courts have not imposed on the police an obligation to ask why the detainee wishes to speak to the third party. Nor have they imposed on the police an obligation to facilitate contact with the third party. Rather, in keeping with the requirement that it is for the detainee to assert a desire to speak with counsel of choice before the police are required to facilitate the implementation of that right, the obligation has been, consistently, on the detainee to explain to police why he or she wishes to speak to a third party.
[40] In my view, the trial judge erred in interpreting the law as requiring the police, in circumstances where the respondent gave no indication as to why he wished to contact Constable Bhargava, to facilitate that contact.
Did the trial judge err in concluding that the officer’s statement to the respondent that he could call “his own lawyer, duty counsel or no lawyer” did not satisfy the informational component of the s. 10(b) right to counsel?
[41] The trial judge found a further s. 10(b) breach in the manner in which Constable Kokot complied with the informational duties imposed under s. 10(b) of the Charter. More specifically, the trial judge found that because the officer told the respondent that he could contact his own lawyer, duty counsel or no lawyer, “the explanation of the right to counsel over-simplified the right and missed a significant component”. This was because the respondent “was entitled to know that even if he did not have his own lawyer, he did not then have to choose between duty counsel and no lawyer” and had the right to know that he could contact any lawyer that he wished.
[42] The Crown submits that the trial judge erred in law in finding a s. 10(b) breach in these circumstances because the officer’s statement was not incorrect and could not have misled the respondent when it is viewed in its proper context.
[43] The defence submits that the respondent was critically mis-informed and mis-led about his right to counsel and that he should have been told that he could call “any lawyer”, as opposed to only his own lawyer.
[44] In my view, the trial judge erred in finding a s. 10(b) breach in the circumstances.
[45] First, the trial judge does not appear to have considered the information from Constable Kokot in the context of the information that had already been provided to the respondent. That information included what was said to the respondent by Constable Sikora upon his arrest. At that time, the officer read the standard caution. This included expressly telling the respondent that he had the right to retain and instruct counsel and had the right to contact “any lawyer” that he wished.
[46] Second, and more importantly, the trial judge seems, in my view, to have parsed the words used by Constable Kokot, rather than considering whether the officer communicated the essential components of the s. 10(b) right to the respondent. As Doherty J.A. explained in R. v. Devries, 2009 ONCA 477 at para. 36:
…compliance with s. 10(b) must be measured by its ability to convey the essential character of the s. 10(b) rights to the detainee – the right to immediate access to a lawyer, including access through the toll-free number to immediate free legal advice.
[47] The respondent was initially told that he could contact any lawyer. When he said he wanted to contact a friend, the officer clarified that he had the right to speak with a lawyer and elaborated that this could be “his lawyer”, or duty counsel. I cannot agree with the trial judge that, when viewed as a whole, the information provided to the respondent either mis-informed the respondent or that he could have mis-understood it. In my view, the totality of the information provided could not have led the respondent to believing that he could not call a lawyer unless he had one already.
[48] If the respondent had any misunderstanding as to whether he could call someone in order to obtain the name of a lawyer, in the circumstances of this case, it is my view that misunderstanding flowed only from his failure to convey his own thought processes to the officer.
[49] In my view, when there was nothing objectively misleading about the totality of the information provided by the police, and there was an absence of any attempt on the part of the respondent to clarify whether he could contact a third party in order to contact counsel if he did not already have the name of a lawyer with whom he wished to speak, there can be no violation of s. 10(b) of the Charter. In finding a breach, the trial judge fell into error: Zoghaib.
Did the trial judge err in excluding the breath samples as a remedy under s. 24(2) of Charter?
[50] Given my conclusion that there was no s. 10(b) breach, it is not necessary to engage in an analysis as to whether the trial judge’s s. 24(2) analysis contained error. The breath samples should have been admitted.
Remedy
[51] When an appeal court concludes that the trial judge erred in finding a Charter breach, and finds that there was no breach, that court may substitute a finding of guilt. Before doing so, the Crown must demonstrate that the respondent would have been found guilty but for the error of law.
[52] In this case, I have concluded that the breath samples should have been admitted. The Crown submits that given that the trial judge dismissed the other Charter arguments, there should be a conviction entered.
[53] The respondent, in his factum, fairly acknowledges that trial counsel submitted that the Charter decision was dispositive of the case. In these circumstances, counsel concedes that if the breath samples are admitted as a result of this appeal, a finding of guilty should be entered.
[54] Accordingly, I allow the appeal, set aside the acquittal, and enter a conviction for one count of drive over 80. The matter is to be remanded to the trial judge for the imposition of sentence. Counsel are to arrange with the trial coordinator a date on which the matter should return to courtroom 104 at 9:00 am so that it can be scheduled to return before the trial judge for sentencing.
Woollcombe J.
Date: January 18, 2019
COURT FILE NO.: SCA(P) 928/18
DATE: 20190118
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ZUBAIR MUMTAZ
reasons for judgment
Woollcombe J.
Released: January 18, 2019