OSHAWA COURT FILE NO.: CR-18-14895-00
DATE: 20191216
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
NICHOLAS DOOBAY
Appellant/Defendant
D.R. Parke, for the Respondent/Crown
A.D. Gold and L.J. Metcalfe, for the Appellant/Defendant
HEARD: July 24 and September 10, 2019
DAWE J.
I. Overview
[1] The Appellant Nicholas Doobay was tried in the Ontario Court of Justice in Oshawa on a single count of refusing to comply with a demand to provide a breath sample, contrary to s. 254(5) of the Criminal Code, on which the Crown had elected to proceed summarily. On October 9, 2018 the trial judge, Mr. Justice M. Block, found him guilty as charged. The Appellant appeals to this court against his conviction only.
[2] I only find it necessary to address one of the Appellant’s three grounds of appeal. The police arrested the Appellant shortly after 4:30 a.m. on a Saturday morning and made a breath demand. The Appellant invoked his s. 10(b) Charter rights and asked to speak to a particular lawyer who had represented him previously. The police left several voice mail messages on this lawyer’s office phone and also sent him an email, but did not check to see if the lawyer or his firm had a website with an after-hours or cell phone number.
[3] When the Appellant asked how long he would be allowed to wait for his counsel of choice to call back, he was told that he could wait a “reasonable time”. However, an hour and a half after his arrest he was taken to the breath room and told that he had to provide a breath sample immediately. He said he would not do so without first talking to his lawyer and was ultimately charged with the refuse offence.
[4] The trial judge found no violation of the Appellant’s s. 10(b) Charter rights. For the reasons that follow, I have concluded that he erred in his analysis and that the Appellant’s s. 10(b) right to counsel was infringed when the police required him to provide a breath sample:
(i) Without having first made reasonable efforts to find after-hours contact information for his counsel of choice;
(ii) Without clearly advising him in advance that they were placing a time limit on his ability to wait to speak to his counsel of choice, after which they meant to compel him to provide a breath sample whether or not he had obtained legal advice; and
(iii) Without advising the Appellant of the means that could be made available to him to find the names of other private counsel.
As I will explain, in these circumstances I do not think it can properly be concluded that the Appellant was not reasonably diligent in exercising his right to counsel because he did not attempt to speak to a different lawyer from his preferred counsel. In my view, his s. 10(b) rights were breached when the police purported to compel him to provide a breath sample without his having first spoken to counsel.
[5] I am also satisfied that the circumstances of this breach are such that the Appellant cannot properly be found to have committed the essential elements of the refusal offence. If it were necessary to do so, I would also have excluded the evidence of the Appellant’s refusal under s. 24(2) of the Charter. I am accordingly allowing the Appellant’s appeal, quashing his conviction on the refusal offence and entering an acquittal.
II. The facts
A. The Appellant’s arrest and the initial breath demand
[6] Early in the morning on Saturday, March 17, 2018, at around 4:25 a.m., Durham Regional Police Constable Nicholas Cronin and his partner PC Chris Delaney were on patrol in Pickering in a marked police vehicle when they noticed the Appellant’s car as it made a turn from a cross street. They followed it for a short distance as it made several more turns and eventually pulled into the parking lot of a commercial plaza. PC Cronin activated his emergency lights before getting out of his vehicle and approaching the Appellant’s car. He knocked on the driver’s door, and when the Appellant opened it he smelled an “overpowering” odour of alcohol.
[7] PC Cronin told the Appellant he had stopped him because he had “observed erratic driving”, and the Appellant replied: “I saw you and I was trying to get away”. PC Cronin then asked if the Appellant had been drinking and the Appellant replied that he had had “[a] few sips”. PC Cronin directed the Appellant to get out of his vehicle and told him he was under investigation for impaired driving. When face to face with the Appellant PC Cronin could smell the odour of alcohol on his breath, and noticed that he was slurring his words and that his eyes were watery and bloodshot. He also stumbled as he looked for his wallet inside the car to get out his driver’s licence. At this point PC Cronin decided that he had grounds to arrest the Appellant for impaired driving and he proceeded to make the arrest. It was now approximately 4:35 a.m.
[8] PC Cronin proceeded to advise the Appellant of his right to counsel by reading from the printed form in his notebook. The Appellant initially said he did not understand, so PC Cronin “did his best to explain [it] to him in plain English”. Among other things, he told the Appellant that if he didn’t “have a lawyer of his own choosing, then we can put him contact with … free duty counsel for advice”. The Appellant confirmed that he now understood, adding that he “wasn’t trying to be difficult”. When PC Cronin asked the Appellant if he wanted to call a lawyer now the Appellant replied: “Yes”, but when PC Cronin asked which lawyer the Appellant wanted him to contact, the Appellant did not reply. PC Cronin then made a breath demand, which the Appellant said he did not understand until the officer explained it to him “in plain English”, at which point he said that he now understood. PC Cronin then drove the Appellant to the West Division police station on Kingston Road, arriving at 4:51 a.m. The Appellant’s cell phone was seized from him after his arrest and was not returned to him until several hours later when he was released from custody.
B. The Appellant’s arrival at the police station
[9] At the station the Appellant was paraded before the desk officer, Sgt. MacMillan, who explained that “as a Canadian citizen” the Appellant had the right to “speak with a lawyer before anything else”. Sgt. MacMillan then asked the Appellant if he had a lawyer and the Appellant indicated that he wanted to speak to Joseph Neuberger.[^1] The Appellant asked what would happen if Mr. Neuberger didn’t call back, and Sgt. MacMillan explained that there were “some time stringencies we have to abide by but we are not going to infringe your rights”. When the Appellant asked: “What are those stringencies?”, Sgt. MacMillan explained that the Appellant had been:
… brought to the station in custody to provide two suitable samples to a breath tech, OK? OK, so you have to do that within two hours. Ideally. We will contact your lawyer of choice. However, if that lawyer does not call back in a reasonable amount of time, you do have the right to speak with duty counsel which will call back and they are free lawyers provided to people who have been brought in custody to the police station.
The Appellant asked if he could have access to his cell phone, but Sgt. MacMillan said he could not.
[10] Over the next 45 minutes, starting at 5:18 a.m., PC Cronin left three voice mail messages for Mr. Neuberger at his business phone number, which PC Cronin looked up in a paper lawyer’s directory kept at the station. PC Cronin also used the Internet to check the Law Society’s website to verify that Mr. Neuberger was still a practicing lawyer, and to send Mr. Neuberger an email. However, he did not check if Mr. Neuberger had a law firm website that listed any other after-hours contact numbers.
C. Events in the breath room
[11] At 6:02 a.m., approximately an hour and a half after the Appellant was first arrested and 45 minutes after the first voice mail message had been left for Mr. Neuberger, PC Cronin advised the Appellant that he had tried to contact Mr. Neuberger three times but that the lawyer had not called back. PC Cronin testified that the Appellant:
…repeatedly asked me how much time he has, and if he could wait until he calls back, and how many – basically, how many hours does he have.
PC Cronin responded by:
… advis[ing] him that he will be afforded a reasonable opportunity to speak with counsel. …[I]t was indicated to him that … he could contact another lawyer or he could contact free duty counsel.
However, PC Cronin did not tell the Appellant that he could consult any reference sources to find the names of other private lawyers. He explained in cross-examination that the Appellant “didn’t want anyone else” and that he had never heard of detainees being given access to the internet, although he knew that “other officers have given the directory to people”.
[12] PC Cronin then turned the Appellant over to the breath technician, PC Mike Fong. Before PC Fong took the Appellant into the breath room he told him that:
… we were trying to get a hold of his lawyer, but he hadn’t called the station back. … And that we would continue making attempts to call his lawyer, but at that time I had also given the opportunity, if he had another lawyer of choice to contact, or the option to contact duty counsel was given to him, as well.
PC Fong testified that the Appellant’s response was that he “only wanted to speak to Joseph Neuberger”.
[13] Five minutes later, at 6:07 a.m., PC Fong brought the Appellant into the breath room. From this point onward their interaction was video- and audio-recorded. PC Fong told the Appellant:
We’ve contact[ed] your lawyer three times, it’s been almost an hour. I’ve given you, my partner’s given you the option to speak to any other lawyer you wish or to duty counsel. We cannot get into contact with your lawyer and I gave you the option. Is there another lawyer you’d like to speak to or to duty counsel, yes or no?
A lengthy exchange ensued in which the Appellant repeatedly said that he wanted to speak to Mr. Neuberger and asked: “What options do I have while I’m waiting for him?”. PC Fong and PC Cronin agreed to call Mr. Neuberger again “on the hour” – i.e., at 6:18 a.m., one hour after PC Cronin had left his first voice mail message – but PC Fong added that “in the meantime, we’re going to proceed with this test”. The Appellant asked if he could “keep waiting”, to which PC Fong replied:
No, we can’t. Within reason, we’ve made four attempts, well, we’re going to make four attempts, okay. That is reasonable, okay.
[14] PC Fong proceeded to read the Appellant a standard caution. The Appellant replied: “I actually don’t feel comfortable until my lawyer comes”, and asked:
Can you guys not wait until 8 o’clock, a reasonable time, for like, you know, for people to wake up?
PC Fong replied that they could not wait, and that his “other options” were “to speak to another lawyer of your choice or duty counsel”.
[15] PC Fong proceeded to read the Appellant the secondary caution and then read him the breath demand. The Appellant again asked: “Can we not just wait until my lawyer comes?” PC Fong replied: “No”, explaining further:
We’re going to contact your lawyer in about two minutes because we told you, we’re going to call him a fourth time at 6:18 a.m. That will be on the hour that we made four attempts. …[W]hile you’re in my custody I will, we will, continue to call, okay? … But in the meantime, we have to continue and do this test.
The Appellant repeated that he “want[ed] his lawyer here” and “want[ed] to talk to him before [he did] anything”. PC Fong responded:
Okay, as I have explained to you though, he’s not available, okay? So, you can sit here and not say a word, okay, but you are compelled by law, you have to provide samples …
The Appellant then asked if he could wait for his lawyer and PC Fong replied: “No”. When the Appellant asked “how long is the law? Like, till I have to provide this?”, PC Fong answered: “Forthwith” and explained that if he did not he would be charged with refusal. This led to the following exchange:
Mr. Doobay: No, like I’m asking you …
PC Fong: No, don’t. I know what you’re asking: you want to speak to your lawyer before you, you do this test.
Mr. Doobay: I need someone to explain this to me. I need someone of law to explain it to me before I actually take your word for this. I need somebody of law, uh, lawyer …
At this point PC Cronin interjected that he had put in a fourth call to Mr. Neuberger. The Appellant then said: “Can’t we just wait for him?”, to which PC Fong replied:
No, we cannot. So, Nicholas, we’re going to initiate this test. I’m going to do it right now, okay?
[16] A further discussion then ensued in which the Appellant asked what would happen if he refused to provide a breath sample and PC Fong explained the consequences. He then handed the Appellant the breathalyser mouthpiece and asked him to remove it from its plastic wrapper, at which point the Appellant again asked: “And I can’t wait for my lawyer”, to which PC Fong again responded: “No, no.” This led to the following exchange:
Mr. Doobay: Why you making me, why you forcing me to put something in my mouth right now?
PC Fong: Because you’re required by law to do so.
Mr. Doobay: Okay then I can’t have any option to wait at all till my next lawyer comes?
PC Fong: Joseph has been called four times.
Mr. Doobay: And I can’t call another lawyer after that?
PC Fong: Well, I’ve already asked if you wanted to.
Mr. Doobay: Can I, can I get my … another lawyer and wait until you guys call him?
PC Fong: We can try. Do you have another lawyer in mind?
Mr. Doobay: Yeah, Joseph Neuberger without an “e”.
A further discussion ensued in which the Appellant initially claimed that the second “Joseph Nuberger” was the cousin of his counsel of choice, Joseph Neuberger, and was also a lawyer. However, the Appellant eventually admitted that this was untrue, stating:
Yeah, there’s no other Joseph Neuberger, I’m asking for the same Joseph Neuberger. … I’m asking for the same Joseph Neuberger again, I just want, I just want you guys to call him.
He apologized for lying to the officers, explaining:
There was no Joseph Neuberger without an “e”, because you were intimidating me and I was scared and I’m sorry I said that.
[17] The Appellant then began repeatedly asking questions along the lines of: “How many times do I contact the same lawyer until I take the test?” to which PC Fong responded that he didn’t “have a particular number” and that the Appellant had to take the mouthpiece and “start this process”. The Appellant eventually said:
I’m not taking the test. I’m not taking the test. Until I talk to that same lawyer I’m asking for, I’m not taking the test until you answer me at least. I’m not giving you an answer if you’re not giving me my lawyer.
PC Fong responded that the police were trying to reach Mr. Neuberger, to which the Appellant replied: “Okay, then I will wait until he answers the phone”, before adding:
I’m definitely not taking the mouthpiece until you answer my question or I can wait until my, my attorney. Seriously. … I can wait until my attorney or until you answer my question. You’re not answering my question, that’s the seventh time I asked you.
PC Fong reminded the Appellant that PC Cronin had “made every effort to contact” Mr. Neuberger, to which the Appellant replied:
And I’ve, I’ve asked how many time and you don’t answer me, how many times can you contact him and you haven’t answered me to tell me you’ve answered me. How many time can you contact him?
[18] PC Fong told the Appellant he was “going to be charged with refuse”, which led to the following exchange:
Mr. Doobay: You’re not providing me with my attorney and you’re not, and you’re not answering my questions. I’m not understanding anything because you’re not, you’re not providing an attorney to clarify that with me, number one, so I don’t understand that. And number two ..
PC Fong: Okay, can I ask you one question?
Mr. Doobay: I need to understand it, I need to get my attorney here.
PC Fong: Nicholas, Nicholas, can I ask you one question before we conclude this, this, our um, interaction? Can I ask you one question?
Mr. Doobay: I don’t have an attorney, so no.
PC Fong: Well, you can listen, okay. I’m giving you the option to contact any other lawyer you wish or to speak to duty counsel. Is that something you would like to do?
Mr. Doobay: I want Joseph Neuberger and I’m going to wait until he comes here and he advises me on what to do because I feel so much under pressure now that you’re not even answering any of my questions and I’ve been pressured to take a shit when I didn’t even be able to take a shit at all. Um, yeah, like I feel super under pressure. …
[19] PC Fong told PC Cronin to “[c]ontact one last time and then we’re going to end this … interaction here”, to which PC Cronin responded: “Joseph Newbower or berger?” This led the Appellant to question whether PC Cronin had actually been trying to reach the right lawyer for the past hour if “he wasn’t even sure the whole time” what the lawyer’s name was. The Appellant said that he no longer trusted the officers, which led to the following exchange:
PC Fong: I’ve explained the consequences to you that if you do not do the test now, you’re going to be charged with refusal. Okay? That holds a criminal offence.
Mr. Doobay: Sir, I don’t understand it until I talk to Joseph Neuberger cause you aren’t explaining anything to me.
PC Fong: I’ve given you the option to speak with a lawyer.
Mr. Doobay: I don’t understand. I don’t understand
PC Fong: Okay.
Mr. Doobay: I need to talk to Joseph Neuberger. That’s the only person I need to talk to. I need him to explain it to me, that’s the only thing I want to do.
PC Fong: Well I can get you into contact with any other duty counsel lawyer or another lawyer and he’ll give you, he or she can give you advice …
Mr. Doobay: [unintelligible] he will probably wake up pretty soon. I can just go back into that room and he’ll probably wake up and he’ll come back here, so, so, um …
PC Fong: I’m giving you the option. Any other lawyer of your choice. Duty counsel, for free legal aid.
Mr. Doobay: Sir, I’m not taking under pressurly [sic] and I’m not taking that wilfully and, um, honestly I just need a lawyer. I’m not going to do that.
PC Fong: But it is …
Mr. Doobay: No, uh, Joseph Neubary [sic] needs to be here and he needs to explain it to me on what’s happening.
[20] PC Fong then tried to explain to the Appellant that it was in his interests to take the breath test because refusing would have “the same consequences”, while the Appellant continued to insist that he had to speak to Joseph Neuberger. PC Cronin then returned and advised: “He’s been contacted for a fifth time”. PC Fong then asked: “Okay, is there anything I can do or say to get you to do this test right now?”, to which the Appellant replied: “I just need my lawyer to explain it to me because you guys are forcing me …”. At this point PC Fong asked PC Cronin to take custody of the Appellant and told the Appellant he would be charged with refusing to provide a breath sample.[^2] The time was now 6:33 a.m.
D. The Appellant’s evidence
[21] The Appellant gave evidence on the Charter voir dire only. He testified that he did not trust duty counsel, and had insisted on speaking to Joseph Neuberger because he was the only lawyer whom he knew. If the police had told him that they would provide him with reference materials to find other private counsel he would have taken them up on this and tried to find another lawyer. Moreover, if he had been allowed to use his own cell phone, he would have called a friend who had previously dealt with a drinking and driving charge to obtain a referral, which is what he actually did as soon as he was released from custody and the police returned his phone to him. However, the trial judge found the Appellant to be a wholly untrustworthy witness and entirely rejected his evidence.
III. Analysis
[22] Mr. Gold and Ms. Metcalfe raised three grounds of appeal on the Appellant’s behalf. First, while they acknowledge that the trial judge was entitled as the trier of fact to find the Appellant to be an incredible witness, they argue that he erred by drawing this conclusion in part based on factors that had not been relied on by the Crown or fairly put to the Appellant when testifying. Second, they argue that the trial judge erred by finding no breach of the Appellant’s s. 10(b) Charter rights, and argue further that the evidence of his refusal to provide a breath sample ought to have been excluded under s. 24(2). Third, they argue that the trial judge’s reasons for finding the Appellant guilty of the refuse offence are deficient insofar as they do not address the critical issue of mens rea.
[23] As I will explain, I consider the s. 10(b) Charter ground to be sufficient to dispose of this appeal, making it unnecessary for me to address the Appellant’s other grounds. For the purpose of my s. 10(b) analysis I will assume that the trial judge was entitled to entirely reject the Appellant’s testimony in the manner as he did. However, it must be emphasized that the trial judge’s rejection of the Appellant’s evidence that he would have tried to contact other private counsel if he had been given the means to do so does not affirmatively establish that the opposite of what he testified to is true. Rather, it simply makes the situation the same as it would have been if the Appellant had not testified on the voir dire.[^3]
A. General principles re s. 10(b) of the Charter and detainees’ right to seek advice from their counsel of choice
[24] It is well-settled that once a police detainee has asked to speak to counsel, “the police are obliged to “‘hold off’ from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel”.[^4] Detainees also “have a have a right to choose their counsel and it is only if the lawyer chosen cannot be available within a reasonable time that the detainee or the accused should be expected to exercise the right to counsel by calling another lawyer”.[^5] The police must “afford detainees not only a reasonable opportunity to contact counsel of their choice but as well to facilitate that contact”.[^6] At the same time, detainees must be “reasonably diligent in the exercise of [their] rights”.[^7]
[25] The length of time that will be considered “reasonable” for a detainee to wait for his or her counsel of choice rather than trying to obtain advice from a different lawyer – including duty counsel – is highly fact-dependant. As McLachlin C.J.C. and Charron J. explained in R. v. Willier, 2010 SCC 37, [2010] 2 SCR 429 at para. 35:
Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation: [R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 SCR 138]. If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended: R. v. Ross [supra]; and Black. As Lamer J. emphasized in Ross, diligence must also accompany a detainee's exercise of the right to counsel of choice …
[26] In many situations where people are arrested at night and their counsel of choice is not immediately available, it will be entirely reasonable for them to wait until daytime, when their lawyer is likely to wake up and check his or her messages. This is so even if the police would prefer to avoid this delay. For instance, in Ross, supra, where the two accused had been arrested shortly after midnight, Lamer J. held that they ought to have been allowed to wait to speak to their lawyers the next morning rather than being asked to participate in an identification lineup at 3:00 a.m. He explained (at p. 13):
While it may be desirable to hold a line-up as soon as possible, this concern must generally yield to the right of the suspect to retain counsel, which right must, of course, be exercised with reasonable diligence. Here, the line-up was held with utmost, indeed highly unusual dispatch. There is nothing to suggest that the line-up could not have been held a few hours later, after the appellants had again attempted to contact their lawyers during normal business hours.
[27] However, in drinking and driving cases the interest of the police in obtaining a forensically useful breath sample will be a significant factor that affects how long it will be considered reasonable for a detainee to wait to speak to counsel of choice rather than trying to obtain legal advice from a different lawyer, either private counsel or duty counsel. Other relevant factors will include the time of the day or night that the detainee was arrested and the nature of the contact information that is available for counsel of choice – for example, whether the detainee knows or can readily obtain the lawyer’s home or cell phone number, and whether the lawyer has a cell phone number or 24-hour hotline listed on his or her website.
[28] The prosecution’s interest in being able to rely on the statutory presumption that breath test results taken within two hours of the alleged offence also establish the defendant’s blood alcohol level at the time of the offence – which at the relevant time was found in s. 258(1)(c)(ii) of the Criminal Code[^8] – is also a relevant consideration. However, the existence of the presumption does not automatically make it unreasonable in every case for a detainee who has been arrested for a drinking and driving offence to choose to wait more than two hours to speak to his or her counsel of choice. The existence of the statutory presumption is a “relevant factor in the diligence calculus”,[^9] but is one that must be considered along with all the other relevant circumstances.
B. Were the police duly diligent in attempting to contact the Appellant’s counsel of choice?
[29] After the Appellant told the police he wished to speak to Mr. Neuberger, who had previously represented him, PC Cronin looked up Mr. Neuberger’s office phone number in a paper lawyer’s directory and proceeded to leave a series of voice mail messages for him at this number. He also went on the Internet to confirm on the Law Society website that Mr. Neuberger was still practicing and to send him an email. However, he made no attempt to go see if Mr. Neuberger had a firm website that provided other ways of contacting him outside ordinary business hours.
[30] In R. v. Maciel, 2016 ONCJ 563, Stribopoulos J., then a judge of the Ontario Court of Justice, noted that the police in many Ontario jurisdictions have adopted a practice of not giving detainees direct access to the means by which they can find and contact private counsel, such as a telephone and a phone directory or access to the Internet. These resources are regularly made available to detainees in many other parts of Canada. Stribopoulos J. (at paras. 42-43):
Quite obviously, it is not my role to second-guess police operational procedures. And, to be clear, I do not believe there is anything constitutionally objectionable with the police assuming the responsibility of contacting counsel on behalf of those in their custody. That said, it is very much the function of the courts to assess the adequacy of police efforts in the discharge of their constitutional obligations. It follows that if the police assume the responsibility of contacting counsel of choice on behalf of a person who is in their custody, then it is for the courts to assess the adequacy of those efforts. Of course, this begs the question as to what standard should be used in evaluating the adequacy of police efforts.
If the police did not assume this responsibility, those in detention would be expected to exercise reasonable diligence in contacting their lawyer of choice. Where the police take on this function on behalf of the detainee, it seems eminently sensible to subject their efforts to the same standard. Anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing. In that regard, I completely agree with the comments of Justice Horkins in R. v. Panigas, [2014 ONCJ 797](https://www.minicounsel.ca/oncj/2014/797) at para. [52]], who noted:
When the police, as an institution, decide to take control of the accused's means of accessing counsel of choice, they also assume the obligation to pursue that constitutional right with all the same effort and diligence that the accused himself would apply.
I believe this standard is in keeping with the duty upon the police to facilitate contact with a detainee’s counsel of choice. I therefore intend to apply it in assessing the adequacy of the police efforts in this case.
[31] Although Stribopoulos J. was a judge of the Ontario Court of Justice when he decided Maciel, he is now one of my colleagues on the Superior Court of Justice bench. In addition, his comments in Maciel were recently endorsed by my colleague Schreck J., who stated in R. v. O’Shea, 2019 ONSC 1514 at para. 42:
Panigas, Maciel and the other cases cited earlier are instructive on this issue. Once the police decided to take control of the respondent’s means of accessing counsel, they assumed the obligation to pursue her constitutional right to do so as diligently as she would have.
Schreck J. noted that this does not mean “that the police are obliged to take every step an accused would take at the exact times that she would take them”, explaining that “[t]he standard …is whether the police took all steps that were reasonable in the circumstances” (at para. 22). To the same effect, in R. v. Ruscica, 2019 ONSC 2442, my colleague McKelvey J. adopted Burstein J.’s statement in R. v. Ali, 2018 ONCJ 203 at para. 59, in which he had endorsed Stribopoulos J.’s analysis in Maciel. McKelvey J. stated (at para. 38):
I fully agree with the proposition that when the police choose to maintain control over the tools necessary for a detainee to exercise their s. 10(b) rights, the police thereby assume constitutional responsibility for using those tools in the same manner as any reasonable detainee facing an urgent need to contact counsel.
I agree with Stribopoulos J., Schreck J. and McKelvey J. on these points and adopt their analyses.
[32] In Maciel, Stribopoulos J. also held that it has now become reasonable to expect anyone who is trying to contact a lawyer after hours to look at the lawyer’s firm’s website. In Maciel the investigating officer had used the Internet to find a lawyer’s office number from the Law Society website and had also found his home phone number by performing a Google search, and had left voice mail messages at both numbers. However, Stribopoulos J. noted (at paras. 44-45):
[The officer] did not actually look at the website maintained by [counsel’s] law firm. He had no explanation for failing to do so. If he had, he would have noted that like most business websites, it includes a “Contact Us” link. Had he clicked on that link, he would have obtained both [counsel’s] e-mail address and his cell phone number.
In my view, in an era when practically every lawyer and law firm has a website, that would be the most sensible starting point for anyone trying to get in touch with a particular lawyer. This is where a lawyer is most likely to share information with prospective clients about how to go about contacting them. As is the case with [counsel in Maciel], a criminal lawyer’s website will often note his or her cell phone number or e-mail address, which are both ideal ways to get a hold of a criminal lawyer, especially outside of ordinary business hours.
After setting out a list of steps that could routinely be taken by the police when trying to contact counsel of choice on a detainee’s behalf, Stribopoulos J. concluded (at para. 48):
[I]n this day and age, these are the sorts of very basic steps that any reasonably diligent individual who was attempting to contact a lawyer would undertake. These are entirely in keeping with the Supreme Court’s direction that the police are required to take proactive steps to turn the right to counsel into access to counsel. Further, given the obligation upon the police to be reasonably diligent in contacting counsel of choice, it would make good sense for them to properly memorialize the steps that they undertake as they endeavour to discharge their constitutional obligations.
[33] I agree with Stribopoulos J.’s comments and analysis. While the steps the police actually took in Maciel and in the case at bar may at one time have been considered adequate, the standard of reasonableness cannot be treated as static, but must evolve to reflect changing circumstances. Steps that may have been reasonable when there were no better alternatives will not remain reasonable once new and better options have become readily available. As Burstein J. put it in R. v. Ali, supra at para. 59:
In deciding what efforts are “reasonable”, a court must not lose sight of the fact that the methods available today for locating counsel of choice are undoubtedly different today than what was available to a detainee in the past. Accordingly, the standard of care required of the police today must not be defined by what may have seemed reasonable ten years ago.
[34] In my view, the steps PC Cronin took to try to contact Mr. Neuberger fell short of what ought to now be considered reasonable. Leaving multiple voice mails on a lawyer’s office phone at a time of day when the office is obviously closed should no longer be seen as sufficient, when – as here – the officer has Internet access and can very easily check the lawyer’s website for an after-hours or personal cell phone number. While there is no evidence in the trial record as to exactly what PC Cronin would have learned if he had done this in March 2017, there is at least a reasonable possibility that he would have discovered a different and more effective method of contacting Mr. Neuberger early on a Saturday morning.
[35] I agree with Mr. Gold – who was also the Appellant’s trial counsel – that it was an error for the trial judge not to address this aspect of the Appellant’s s. 10(b) argument in his reasons for judgment. In fairness I should note that the trial judge did not have the benefit of the recent decisions of Schreck J. in O’Shea, supra and McKelvey J. in R. v. Ruscica, supra endorsing Stribopoulos J.’s reasoning in Maciel.
[36] The trial judge instead focused his attention entirely on what he considered to be deficiencies in the Appellant’s response after the police told him shortly after 6:00 a.m. that they had been unable to reach Mr. Neuberger. In my view, the question of whether the Appellant acted with reasonable diligence at this point cannot be decoupled from the question of whether the police had themselves made reasonably diligent efforts to reach Mr. Neuberger in the first place. If the police had obtained a cell phone or after-hours number for Mr. Neuberger they might very well have been able to reach him, in which case the Appellant would never have been put in the position of having to consider alternative sources of legal advice.
C. Did the Appellant fail to exercise reasonable diligence?
[37] The trial judge noted that “[t]here is persuasive authority that a finite waiting period for a return call from preferred counsel is reasonable in drink drive cases”. His reasons reveal that he treated this “finite waiting period” as essentially co-extensive with the two hour statutory presumption of identity in s. 258(1)(c)(ii) of the Code. He rejected the defence suggestion that it would have been reasonable for the police to let the Appellant wait until morning, when Mr. Neuberger was likely to wake up and check his messages, stating:
There is no absolute right to delay the provision of breath samples until a particular counsel-of-choice is available. Reasonable delay is appropriate in these circumstances. In cross-examination it was suggested to PC Fong that he could have waited to 8:00 am, if necessary, for Mr. Neuberger to call back. [The Appellant] made the same suggestion to the police. With great respect to learned counsel, the suggestion is manifestly unreasonable in the context of a demand for breath samples. As time marches on the blood alcohol content of the subject diminishes. At some point the evidence of blood alcohol disappears entirely. The police are not obliged to risk the disappearance of the evidence. In the circumstances of this case, the police were not obliged to wait until the presumption of identity became unavailable to a potential prosecution.
[38] While the fact that blood alcohol levels diminish with the passage time is indisputable, the trial judge had no evidence before him as to exactly how much time could pass before a forensic toxicologist would no longer be able to give “read-back” evidence establishing the Appellant’s blood alcohol level at the time of the alleged offence. The Appellant had been arrested at around 4:35 a.m., so waiting until 8:00 a.m. for Mr. Neuberger to wake up would have meant a delay of only 3½ hours since the Appellant was last behind the wheel. While Mr. Parke – counsel for the Respondent Crown on this appeal – submitted that a delay of this order would be “way too long”, he could not point to any cases that have reached this conclusion on the basis of actual evidence. In my view, it is noteworthy that at the relevant time police officers were authorized to make breath demands from persons they believed had committed drinking and driving offences “within the preceding three hours”.[^10] In light of Parliament’s evident conclusion that breath samples taken within three hours of a defendant’s last driving will still be forensically useful, I do not think the trial judge was correct to dismiss out of hand as “manifestly unreasonable” the possibility that the police could have waited 3½ hours to obtain breath samples from the Appellant.
[39] That said, I do not think the trial judge was wrong to conclude that the police were not obliged to give the Appellant this much time to wait for Mr. Neuberger to call back. I agree that it would have been reasonable for the police to insist that the Appellant pursue other options for getting legal advice once it became clear that Mr. Neuberger was probably not going to call back before the two hour statutory presumption of identity expired. Although in Prosper, supra Lamer C.J.C. held that the police interest in preserving the statutory presumption of identity does not create a situation of “urgency” that justifies compelling a detainee to give breath samples before having any reasonable opportunity to consult with any lawyer, he expressly noted that the situation would change if duty counsel was available. As he explained (at pp. 269-70 S.C.R.):
In my view, what constitutes a “reasonable opportunity” will depend on all the surrounding circumstances. These circumstances will include the availability of duty counsel services in the jurisdiction where the detention takes place. As the majority in Brydges [R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190] suggested (at p. 216), the existence of duty counsel services may affect what constitutes “reasonable diligence” of a detainee in pursuing the right to counsel, which will in turn affect the length the period during which the state authorities' s. 10 (b) implementational duties will require them to “hold off” from trying to elicit incriminatory evidence from the detainee. The non-existence of such services will also affect the determination of what, under the circumstances, is a “reasonable opportunity” to consult counsel. The absence of duty counsel in a jurisdiction does not give persons detained there more rights under s. 10 (b) than those who are detained in jurisdictions which have duty counsel. It does, however, serve to extend the period in which a detainee will have been found to have been duly diligent in exercising his or her right to counsel.
[40] Accordingly, even though I am not satisfied on the evidential record in this case that the police could not realistically have waited until late enough in the morning for it to be reasonably likely that Mr. Neuberger would wake up and call back, I agree with the trial judge that they were not obliged to wait this long, provided that they themselves took reasonable steps in the meantime to contact Mr. Neuberger on the Appellant’s behalf.
[41] However, as I have discussed above, I do not consider the steps the police actually took in this case to have been sufficient. Moreover, the officers also failed to make it clear to the Appellant in advance that they meant to compel him to provide a breath sample before the two hour mark was reached, whether or not he had spoken to a lawyer by this time. While the Appellant was told that he could try to contact a different lawyer or speak to duty counsel, he was not told that these would be his only options for obtaining legal advice if Mr. Neuberger did not call back before 6:30 a.m. In these circumstances, the Appellant cannot in my view be said to have failed to exercise “reasonable diligence” by not pursuing these other options.
[42] It is important to note that in many situations there will be nothing in the least bit unreasonable about a detainee who has been arrested during the night choosing to wait until daytime to get legal advice from his or her counsel of choice. For instance, as noted above, in R. v. Ross, supra, the Supreme Court of Canada found that it would have been entirely reasonable for the detainees, who had been arrested shortly after midnight, to choose to wait until “normal office opening hours” to speak to their counsel of choice. As O’Connor J.A. explained in his judgment for the Ontario Court of Appeal in R. v. McCallen (1999), 1999 CanLII 3685 (ON CA), 131 C.C.C. (3d) 518 at paras. 34, 36:
The solicitor-client relationship is anchored on the premise that clients should be able to have complete trust and confidence in the counsel who represent their interests. …
The reasons why clients may choose one lawyer rather than another may vary widely and will often turn on personal preferences or other factors that do not lend themselves to objective measurement. Professional reputation and competence will no doubt be important factors in the choice of counsel, but it would understate the full nature of the relationship to suggest that the choice be limited to those considerations. The very nature of the right is that the subjective choice of the client must be respected and protected.
The right to obtain advice from their preferred lawyer is not something detainees should be expected to discard lightly. Indeed, the reasonableness of a detainee not giving up this right too quickly is underscored by the fact that s. 10(b) right on detention to consult with counsel has been interpreted as “essentially a one-time matter with few recognized exceptions”: R. v. Sinclair, 2010 SCC 35 at para. 64. Once a detainee opts to speak to a different lawyer or to duty counsel, he or she may not get a second chance later on to obtain advice from his or her counsel of choice.
[43] It is well-recognized that drinking and driving cases present some special considerations, and that detainees being held for breath tests will sometimes be expected to make choices they would not reasonably be expected to make in other contexts. In my view, however, a detainee can only be expected to give up the option of speaking to his or her counsel of choice and start looking for advice from a different source if the detainee knows that the police will not wait indefinitely before the detainee is compelled to provide a breath sample. For instance, in R. v. Richfield, 2003 CanLII 52164 (Ont. C.A.), the Ontario Court of Appeal found that a detainee had not acted with reasonable diligence when he declined the option of speaking to duty counsel when his counsel of choice had not returned a message left with his 24-hour answering service after an hour and forty-five minutes. In that case, however, the police had specifically “advised [the detainee] that a demand was going to be made shortly to provide samples of his breath and if he was going to get advice from counsel that he should do so now prior to the demand.”
[44] The Appellant was never told anything like this. During the booking, Sgt. MacMillan told him there were “some time stringencies” and that police would “[i]deally” like to take the breath sample within two hours. However, it was not explained to him that the police would be treating the two-hour window as a firm time limit. Later, when PC Cronin told the Appellant at 6:02 a.m. that Mr. Neuberger had not yet called back, the Appellant expressly “asked … how much time he has, and if he could wait until [Mr. Neuberger] calls back”. PC Cronin’s unhelpful response was that the Appellant would “be afforded a reasonable opportunity to speak with counsel”. When PC Fong then spoke to the Appellant a few minutes later before taking him to the breath room, he merely told the Appellant that the police “would continue making attempts to call his lawyer”. Although both officers also reminded the Appellant that he had the option of trying to contact a different lawyer, including duty counsel, neither made it clear that if the Appellant did not pursue this option in the very near future he would be compelled to provide breath samples without first getting legal advice from anyone.
[45] It was only when the Appellant was taken to the breath room at 6:07 a.m. that PC Fong lowered the boom and told the Appellant that the police were now “going to proceed with the test”. Although PC Fong did also say the officers would keep trying to call Mr. Neuberger, he explained that “in the meantime, we have to continue and do this test”. The Appellant was also told that he was required by law to provide a breath sample “forthwith” and that he would be charged with refuse if he did not do so. When the Appellant repeatedly asked whether he could wait to speak to Mr. Neuberger, he was told that he could not wait any longer, and that PC Fong was “going to initiate this test … right now”.
[46] Although the possibility of the Appellant obtaining advice from a different lawyer was also raised during the breath room discussion, I do not think it would have been clear to a reasonable person in the Appellant’s position that the police were offering to delay the breath test while the necessary calls to arrange such a consultation were made. Since the police were expressly telling the Appellant that they would not delay the breath test while PC Cronin made further calls to Mr. Neuberger, it would be reasonable for him to conclude that they would also be unwilling to delay the test in order to call some different lawyer. Indeed, much of this discussion took place after PC Fong had handed the Appellant the breathalyser mouthpiece and repeatedly told the Appellant to unwrap it and put it into his mouth in order to “start this process”. In my view, a person in the Appellant’s position would not have understood that he was being given the option of delaying the breath test for the length of time that would have been reasonably necessary to contact another private lawyer, or even duty counsel, at the eleventh hour.
[47] Essentially, what happened in this case is that the Appellant, having earlier been told that he would be allowed to wait for his counsel of choice for an undefined “reasonable” amount of time, and after having had his requests for clarification of what this actually meant rebuffed, was suddenly told that the waiting time had now expired. As Crown counsel on the appeal put it in his oral submissions, the police response to the Appellant’s questions about how long he could wait was to “use the word ‘reasonable’ or various versions of that a number of times, and then start saying ‘no, now it’s been too long.’” What was entirely missing was the middle step – which in my view was critical – of the police telling the Appellant, before announcing that the test could not be delayed any longer, that if he did not pursue other options he would lose the chance to get any legal advice from anyone. In these circumstances, I do not think the Appellant can properly be criticized as not acting with reasonable diligence when he did not take steps to try to get advice from a different lawyer.
[48] The Appellant’s insistence that he only wanted advice from Mr. Neuberger must also be considered in this context. While the Appellant may have known “that the police placed importance on the provision of a breath sample within two hours”, as the trial judge found, the Appellant would not necessarily have understood from this that he was going to be legally obliged to accommodate the police wishes. After the Appellant was brought to the breath room, a reasonable person in his position might well have understood that what was now on offer was merely the option of speaking to a different lawyer after the breath test.
[49] The trial judge stated in his reasons for judgment:
There is no requirement in law that the police inform the detainee of the number of minutes they will be permitted to wait for counsel’s response prior to being required to supply a sample or any other investigative consideration. There is no legal obligation on P.C. Fong to define “reasonable time”. That said, it would have been no error to inform [the Appellant], in the starkest terms possible, of the time remaining before a first sample was required.
The trial judge was correct in the narrow sense that the police failure to tell the Appellant how long he could wait to speak to counsel before he was compelled to take the breath test did not in itself violate his s. 10(b) rights, as would have been the case if they had failed to advise him of his right to counsel at all, or had not told him that duty counsel was available.[^11] However, their failure to give him this information even after he specifically asked for is in my view highly germane to the question of whether the Appellant failed to make reasonably diligent efforts to exercise his right to counsel. Likewise, while I agree with the trial judge that it would have been “no error” for the police to tell the Appellant how long he would be permitted to wait to speak to Mr. Neuberger, I would go much further and say that it was necessary for them to give him this information if they wanted to be able compel him to provide a breath sample before his lawyer called back.
[50] Mr. Parke argued that the police cannot be faulted for giving the Appellant only vague answers to his questions about how long he would be allowed to wait for Mr. Neuberger, since the standard of reasonableness is necessarily imprecise. As Mr. Parke put it in his factum, “the law unhelpfully tells the police that they must wait a reasonable amount of time”. I agree that the standard of reasonableness is often difficult to translate ahead of time into a precise time limit since it depends so much on case-specific circumstances. However, the police in the case at bar had evidently decided in their own minds at some point – certainly by 6:07 a.m., if not sooner – that they did not think it would be reasonable to let the Appellant wait past the two hour mark to speak to his counsel of choice. In my view, once the police reached this conclusion – whether rightly or wrongly – it became incumbent on them to communicate it to the Appellant in a timely way if they hoped to then compel him to submit to the breath test before the two hour mark passed.
[51] The information the officers gave the Appellant was also in my view deficient in another respect. Although they told him several times that he had the option of trying to contact another private lawyer, they did not offer to give him the tools he would need to actually find one – for instance, a legal directory, access to the internet, or an opportunity to call a third party. To the contrary, they asked him if he had “another lawyer in mind”, which implied that the onus was on him to identify another lawyer by name who the police would then to try to contact, and refused to allow him to have his cell phone. In my view, the Appellant’s failure to pursue the option of trying to find a different private counsel cannot be branded unreasonable or insufficiently diligent when he was never told that he could have the reference materials he would actually have needed to pursue this option.
[52] In my view, the Appellant’s insistence that he only wanted to speak to Mr. Neuberger does not change this analysis. While I am prepared to assume for the purpose of my analysis that the trial judge did not err by rejecting the Appellant’s testimony that he would have tried to contact another lawyer or call a friend who could refer him to another lawyer – as he actually did once released – if he had known that he could have the means to do so, rejecting the Appellant’s testimony on these points does not affirmatively establish that the opposite of what he said was true. In my view, it is reasonably possible that the Appellant would have changed his position if he had known in advance: (i) that the time the police would let him wait to speak to Mr. Neuberger would be severely limited; and (ii) that he could have access to the means necessary to identify and contact a different lawyer.
[53] It is unnecessary in this case for me to consider the contentious question of whether the police s. 10(b) informational duties should be expanded to require them to tell all detainees that they will be given access to tools for finding private counsel, as a number of recent Ontario Court of Justice decisions have suggested.[^12] In R. v. Ruscica, supra, my colleague McKelvey J. rejected the argument that the police s. 10(b) informational duties should be expanded in this way, although he agreed that such an obligation could arise in a particular case “based on a request from the detainee which reasonably requires the police to assist in this regard.”[^13] For the purposes of this appeal I need not decide whether the police failure to inform the Appellant of the means by which he could have identified and contacted other private lawyers in and of itself triggered a breach of his s. 10(b) Charter rights. Rather, it is sufficient to approach this issue as I have done and treat the police failure to provide this information as a significant factor when assessing whether the Appellant was reasonably diligent in exercising his s. 10(b) rights. If he was reasonably diligent in the circumstances, his s. 10(b) rights were infringed at the point that the police sought to compel him to provide a breath sample despite his not having yet spoken to counsel.
[54] However, the Crown forcefully argued that not only should I decline to expand the police s. 10(b) informational duties, but that I am bound by appellate authority not to do so. Essentially, Mr. Parke’s argument was that since various appellate decisions have itemized the police informational duties without mentioning any obligation to tell detainees about the available means by which they can identify and contact private counsel, trial and intermediate appellate courts must find that no such obligation exists. My colleague McKelvey J. accepted this argument in Ruscica, supra, concluding “if there is to be a further informational obligation imposed on the police, it would need to come from appellate jurisprudence”, because no such informational duty was recognized by the Ontario Court of Appeal in R. v. Devries, 2009 ONCA 477 or by the Supreme Court of Canada in R. v. Bartle, supra.
[55] With respect, I disagree with this conclusion. Appellate decisions decide what they decide, but no more. In my view, the fact that an appellate court’s decision does not give effect to an argument that was not raised before it does not bar the argument from being raised in a lower court in a future case. As McLachlin C.J.C. explained in Canada (Attorney General) v. Bedford, 2013 SCC 72 at para. 44:
[A] lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach. In my view, as discussed above, this threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence. This balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role.
In Devries, supra, Doherty J.A. expressly noted that the defendant in that case:
[C]ounsel for the respondent, correctly in my view, does not contend that on this record he can argue that the police officer was obliged under s. 10(b) to advise the respondent that a list of lawyers' telephone numbers could be made available to her at the police station. The only issue before this court is whether the Appeal Judge correctly held that the police officer was obliged, when informing the respondent of her s. 10(b) rights, to tell the respondent that should she choose to speak with a lawyer, that consultation would take place at the police station and not at the roadside.
In my view, Devries cannot be understood as a binding decision on a point of law that was expressly not raised in the Court of Appeal and was recognized as not being before the court. Likewise, in Bartle, supra the only issue that was squarely before the Supreme Court of Canada was framed by Lamer C.J.C. as follows (at p. 190 S.C.R.):
Does the information component of s. 10(b) of the Charter require that the police routinely refer to the existence and availability of a 24-hour duty counsel service which provides free, preliminary legal advice and can be reached by dialling a 1-800 (toll-free) telephone number?
The Court answered this question in the affirmative. However, I do not think Bartle can properly be taken to have fixed the content of the police s. 10(b) informational duties for all time and decided by inference that no additional information will ever be required, nor do I think that arguments about expanding the scope of these police duties can from now on only be raised and addressed by the Supreme Court.
[56] As a matter of policy there are good reasons to allow trial courts to consider and decide novel legal arguments. While it is ultimately for the Court of Appeal and the Supreme Court of Canada to decide whether or how the law should develop, appellate courts benefit when new arguments are first litigated in the courts below, and only rarely allow them to be raised for the first time on appeal. Moreover, on some issues trial judges are especially well-positioned to recognize problems with how the law is working in practice and to identify possible solutions. Ontario Court of Justice judges, in particular, see far more impaired driving charges than judges in any other court in this province, and are likely to be the first to identify problems with existing police practices. Accordingly, I would not foreclose the possibility of a trial court deciding that the informational duties s. 10(b) of the Charter places on the police should be expanded. However, it is unnecessary for me to delve further into this question here.
E. Conclusions on s. 10(b)
[57] For the above reasons, I am satisfied that the police in this case failed to adequately carry out their implementational duties under s. 10(b), in two ways. First, they did not take reasonable steps at the outset to contact the Appellant’s counsel of choice because they made no attempt to see if he had a website that listed an after-hours or cell phone number. In my view, this should now be considered an essential step whenever a detainee requests to speak to a particular lawyer, if the police continue to follow the practice of not giving detainees direct access to the Internet and a telephone. Second, as discussed above, I do not think it can be properly concluded in the circumstances here that the Appellant was not reasonably diligent in his exercise of his right to counsel because he did not take steps to speak to a different lawyer after the police told him his counsel of choice had not called back. He was not told that he would only be given a very short time to speak to counsel before he was compelled to take the breath test, nor was he told that he would be given the tools he would reasonably need to identify and contact another lawyer. As a result, the police s. 10(b) implementational duties – including their duty to “hold off” from taking further steps to have the Appellant produce self-incriminatory evidence – did not lapse. It follows that the Appellant’s s. 10(b) rights were infringed at the point that the police brought him into the breath room, sought to compel him to provide a breath sample, and charged him when he refused because he wanted to speak to his lawyer.
F. Effect of the breach on the essential elements of the refuse offence
[58] As Code J. noted in R. v. Mandryk, 2012 ONSC 3964 at para. 61, “[t]he actus reus of the offence of ‘fails or refuses to comply’ with a demand for breath samples … is silent as to how the Charter right to counsel is to be accommodated. After considering the jurisprudence on this point, including the Supreme Court of Canada’s pre-Charter decision in R. v. Jumanga (1977), 29 C.C.C. (2d) 269, 1976 CanLII 159 (S.C.C.), Code J. concluded (at para. 65) that these cases have:
… consistently interpreted the actus reus of the offence enacted in s. 254(5) in a flexible and fair manner, such that the element “fails or refuses to comply” is not applied in a way that would be inconsistent with the accused’s right to counsel. These cases hold that where the accused seeks access to counsel’s advice, either shortly before or shortly after an initial refusal to comply with the s. 254(3) demand, then the initial indication of the accused’s intentions is treated as provisional. It is only after access to counsel that the initial provisional indication becomes final. This is simply a matter of reasonable and fair construction of the statutory terms, consistent with the Charter of Rights and with the Bill of Rights, since the accused is detained and is required to make a decision with significant legal consequences and is seeking access to counsel’s advice.
[59] As discussed above, I have concluded that in view of the inadequacy of the police efforts to contact the Appellant’s counsel of choice and their failures to properly inform him about how long he could wait for his counsel of choice and how he could go about trying to find another lawyer, the Appellant cannot be said to have failed to exercise his s. 10(b) rights with reasonable diligence. Accordingly, he was still protected by his s. 10(b) rights at the point that the police purported to compel him to provide a breath sample. In these circumstances, his refusal to provide a sample – which was expressly framed as a conditional refusal not to provide a sample until he had spoken to his lawyer – cannot in my view constitute the actus reus of the refusal offence. Moreover, the Appellant cannot be said in these circumstances to have had the requisite mens rea, namely, an intention to refuse to provide a breath sample.[^14] Alternatively, his invocation of his right to counsel constituted a “reasonable excuse”.
G. Section 24(2)
[60] It is not strictly necessary to consider whether I would have excluded the evidence of the Appellant’s refusal under s. 24(2) of the Charter in light of my conclusion that the breach of his s. 10(b) rights precludes the conclusion that he committed the essential elements of the refusal offence. However, in the event that I am incorrect in this aspect of my analysis, I would in any event have excluded the evidence had it been necessary to do so.
[61] Although there is some dispute in the case law as to whether s. 24(2) can be invoked to exclude evidence that is itself the actus reus of the offence, I adopt my colleague Schreck J.’s analysis of this issue in O’Shea, supra (at paras. 49-51) and agree with his conclusion that s. 24(2) can properly be used to exclude evidence of a refusal to provide a breath sample.
[62] The exclusion of evidence under s. 24(2) is determined by balancing the three factors discussed by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. With respect to the seriousness of the Charter violation, I do not think the officers in this case set out to infringe the Appellant’s s. 10(b) rights on purpose, and I appreciate that the Appellant was in many respects a difficult person to deal with. However, their failure to appreciate that it is no longer reasonable for the police not to use the Internet to look for counsel’s after-hours contact number or understand the importance of letting detainees know about the information options available to them to, some eighteen months after Maciel made these points forcefully and after Stribopoulos J.’s decision had been followed in numerous other Ontario Court of Justice judgments, suggests an institutional failure on the part of the police. Moreover, I do not think it was reasonable for the officers in this case not to grasp how their failure to give a clear answer to the Appellant’s repeated questions about how long he could wait for his counsel of choice was simply confusing the situation and impeding the Appellant’s exercise of his s. 10(b) rights. While the seriousness of the violation in terms of the police conduct was not at the high end of the spectrum, this factor still in my view weighs in favour of exclusion.
[63] The second Grant factor – the impact of the breach on the Appellant’s Charter-protected interests – in my view strongly favours exclusion. The Appellant was badly in need of legal advice before he did anything that harmed his interests. Moreover, as Doherty J.A. observed in R. v. Rover, 2018 ONCA 745 at para. 45:
The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.
[64] The third set of Grant factors largely but do not entirely favour admission. On the one hand, excluding the evidence of the Appellant’s refusal to provide a breath sample dooms the Crown’s case against him on this charge. At the same time, the Crown could always have proceeded on the impaired driving charge, with which the Appellant was originally charged but which the Crown withdrew at the start of his trial. Moreover, to adopt Stribopoulos J.’s comment in Maciel, supra (at para. 58) “it is … worth noting here that the evidence of the refusal might not have come into existence had [the Appellant’s] right to counsel of his choosing been respected”.
[65] On balance, I believe the longer term integrity of the administration of justice would have been better served by the exclusion of the evidence. Excluding the evidence of the Appellant’s refusal would of course lead to the same conclusion I have reached by a different analytic route, as discussed above.
IV. Disposition
[66] In the result, the appeal is allowed, the Appellant’s conviction is quashed, and an acquittal entered.
The Honourable J. Dawe
Released: December 16, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
NICHOLAS DOOBAY
REASONS FOR JUDGMENT
Dawe J.
Released: December 16, 2019
[^1]: The Appellant explained in his voir dire testimony that Mr. Neuberger had previously represented him when he was a youth. [^2]: The Appellant was also charged with impaired driving and possession of a controlled substance, but the Crown withdrew these charges at the start of his trial and he was only prosecuted on the refuse charge. [^3]: See, e.g., R. v. Walker, 1994 CanLII 8725 (Ont. C.A.); R. v. Davison (1974), 1974 CanLII 787 (ON CA), 20 C.C.C. (2d) 424 (Ont. C.A.). [^4]: R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236 at p. 269. [^5]: R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3 at p. 11. [^6]: R. v. Traicheff, 2010 ONCA 851 at para. 2. [^7]: R. v. Ross, supra at p. 11. [^8]: The Code’s drinking and driving provisions have now been substantially overhauled, but a similar presumption is now created by s. 320.31(4). [^9]: R. v. Barrientos, 2014 ONSC 2862 at para. 66. [^10]: Criminal Code, s. 254(3). [^11]: See, e.g., R. v. Brydges, supra; R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 SCR 173. [^12]: See, e.g., R. v. Manuel, 2018 ONCJ 381, R. v. Middleton, 2018 ONCJ 387, R. v. Kowalchuk, 2018 ONCJ 688, R. v. McFadden, 2016 ONCJ 777; R. v. Lim, [2016] O.J. No. 6869 (C.J.); R. v. Klotz, 2017 ONCJ 543; R. v. Sakharevych, 2017 ONCJ 669. [^13]: R. v. Ruscica, supra at para. 43. [^14]: See the lengthy discussion by Paciocco J. (now Paciocco J.A. of the Ontario Court of Appeal) in R. v. Soucy, 2014 ONCJ 497 at paras. 27-55.