SARNIA COURT FILE NO.: 1937/17-AP

DATE: 20190208

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

STEVEN WALSH

Appellant

Krista L. Leszczynski, for the Crown

Jennifer A. Comand, for the Appellant

HEARD: June 7, 2018

REASONS ON APPEAL

HOWARD J.:

Overview

[1] This is an appeal pursuant to s. 813(a)(i) of the Criminal Code[^1] by Mr. Steven Walsh against his conviction by D.V. Austin J. of the Ontario Court of Justice on May 15, 2017, in Sarnia, Ontario, for operating a motor vehicle while the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(b) of the Code.

[2] The events giving rise to the charges took place in the early evening of November 29, 2015, in Sarnia, Ontario. On that evening, a police officer was otherwise engaged in his duties, when his attention was drawn to something unusual, that is, a pickup truck rolling in motion in a parking lot apparently without a driver or anyone in the cab. A male person then entered the cab by the driver’s door, took control of the vehicle, and drove off. The police officer followed the vehicle and initiated a traffic stop. In speaking with the driver at the roadside, the officer noted the presence of indicia of impairment. He then arrested the driver for impaired driving, informed him of his right to counsel, and transported him to the police station, where he ultimately provided two breath samples after having spoken with a lawyer.

[3] In a two-count information, Mr. Walsh was charged with the following offences:

a. operating a motor vehicle while his ability to do so was impaired by alcohol, contrary to s. 253(1)(a) of the Code; and

b. operating a motor vehicle, having consumed alcohol in such a quantity that the concentration of alcohol in this blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(b) of the Code.

[4] In the course of her 11-page reasons for judgment, delivered orally on May 15, 2017, Austin J. dismissed the defence’s application that the police officers had violated Mr. Walsh’s rights under ss. 10(a) and (b) of the Canadian Charter of Rights and Freedoms[^2] and, in particular, his right to counsel.

[5] In the result, the trial judge convicted Mr. Walsh of only the second count on the information, i.e., the “over 80” charge.[^3] The trial judge acquitted Mr. Walsh of the charge of impaired driving on the first count of the information.

[6] By notice of appeal dated June 15, 2017, Mr. Walsh appealed from his conviction on the second count.

[7] For the reasons that follow, I have concluded that Mr. Walsh’s appeal must be dismissed.

Factual Background and Decision of the Trial Judge

[8] The parties are in agreement as to the essential facts of the case.

[9] On Sunday, November 29, 2015, Police Constable Marijan Sapeta of the Sarnia Police Service was dispatched to the vicinity of 179 Mitton Street in Sarnia regarding an unrelated report of two female persons fighting. He arrived there at around 6:30 p.m.

[10] In the course of his investigation of the unrelated incident, P.C. Sapeta was travelling northbound on Mitton Street when he observed a white two-door Chevrolet Silverado truck rolling forward in the parking lot of a Shoppers Drug Mart store on Mitton Street.

[11] P.C. Sapeta observed that the vehicle was in motion but he did not observe any operator in the driver’s seat or anyone inside the vehicle at all. He saw that the driver’s side door was open, and there was a male person who appeared to be trying to get into the driver’s side of vehicle while it was still in motion. He observed the male person succeed in getting into the vehicle and stopping it.

[12] It is common ground that the male person observed by P.C. Sapeta was Mr. Walsh.

[13] P.C. Sapeta observed the vehicle, now in control of the driver, reverse and exit the parking lot onto Stuart Street, and then ultimately proceed eastbound on Wellington Street. P.C. Sapeta followed the vehicle for a period of time before activating the emergency lights on his police cruiser and initiating a traffic stop, at 6:33 p.m.

[14] The evidence of P.C. Sapeta was that as the subject vehicle came to a stop, the male driver and lone occupant exited the vehicle and approached his police cruiser on the driver’s side, which gave rise to a concern for officer safety. P.C. Sapeta observed that Mr. Walsh was unsteady on his feet.

[15] P.C. Sapeta directed Mr. Walsh to return to his vehicle, and Mr. Walsh complied. P.C. Sapeta then approached the driver’s side of the vehicle and questioned Mr. Walsh about his vehicle being in motion and him trying to get the vehicle stopped while not occupying the driver’s area.

[16] In speaking with Mr. Walsh at the roadside, P.C. Sapeta noted the presence of indicia of impairment. In particular, the evidence of P.C. Sapeta was that Mr. Walsh had glassy eyes, his speech was extremely slurred, and he “reeked of alcohol.”[^4] P.C. Sapeta also questioned Mr. Walsh about his alcohol consumption, and Mr. Walsh acknowledged that he had consumed alcohol, stating that he had consumed three beers about an hour before the traffic stop.

[17] Ultimately, P.C. Sapeta placed Mr. Walsh under arrest for impaired driving. The notation in P.C. Sapeta’s duty book was that the arrest was made at “18:47 hours.”

[18] The evidence of P.C. Sapeta at trial was that he read Mr. Walsh his right to counsel from the back of his duty book, and the constable then proceeded to read into the trial record the text of the right to counsel as set out in his duty book, which included the statement that “[y]ou have the right to […] free advice from a Legal Aid lawyer. If you are charged with an offence you may apply to the Ontario Legal Aid Plan for assistance. It’s 1-800-265-0451, is a number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice right now.” The notation in P.C. Sapeta’s duty book was that he read Mr. Walsh his right to counsel at “18:54 hours.”

[19] P.C. Sapeta asked Mr. Walsh if he understood his right to counsel, and Mr. Walsh indicated that he did. P.C. Sapeta made a notation in his duty book that Mr. Walsh understood his rights.

[20] P.C. Sapeta then asked Mr. Walsh if he wished to call a lawyer at that point, and Mr. Walsh replied, “I don’t know who.” The evidence of P.C. Sapeta was that his practice was that he does not “provide advice as to who people can call or why they should call or if they need to call.”[^5] P.C. Sapeta understood that Mr. Walsh would be given a list of local lawyers at the police station or a telephone book, or he could come up with a name of someone else, but Mr. Walsh made no election at the time of the roadside arrest as to who he wanted to call.

[21] P.C. Sapeta then gave Mr. Walsh his caution and made a demand for a breath sample. Ultimately, he transported Mr. Walsh to the Sarnia Police Service station for the purpose of obtaining the breath samples, arriving at the station at 7:01 p.m.

[22] Once at the station, Mr. Walsh was booked in by Sergeant Paul Mullins, who provided Mr. Walsh with a laminated list of lawyers. Mr. Walsh indicated that he did not know who to call. Sgt. Mullins indicated that Mr. (Robert) McFadden would answer a call placed to his phone. Mr. Walsh indicated to Sgt. Mullins that he would then like to speak with Mr. McFadden, and that call was then facilitated. P.C. Sapeta testified that he escorted Mr. Walsh to the private “lawyers’ room” at 7:23 p.m., and he placed the call to Mr. McFadden; he passed the telephone to Mr. Walsh and then exited the lawyers’ room so that Mr. Walsh “could have a conversation in private with counsel.”[^6]

[23] The evidence of P.C. Sapeta was that the conversation of Mr. Walsh with legal counsel was completed at 7:30 p.m., and that upon completion of that conversation, “the accused was given an opportunity to contact – or to make another telephone call to a lawyer of Legal Aid. It was declined, and he was then escorted to the breath tech room at the Sarnia Police.”[^7]

[24] Mr. Walsh was then turned over to P.C. Jason Brown, a qualified breath technician, and provided two suitable breath samples into an approved device.

[25] The evidence of P.C. Brown was that while Mr. Walsh was in his care or custody, he observed his physical conditions and noted that Mr. Walsh “had glassy eyes, his pupils were dilated, his eyelids were very heavy, he had a very slurred speech and an odour of an alcoholic beverage on his breath.”[^8] Further, P.C. Brown observed Mr. Walsh while he was being booked in, and the constable noted that he appeared to be unsteady and swaying on his feet in the booking-in areas, as well as when he was entering the breath room.

[26] Prior to providing a sample of his breath. Mr. Walsh was again read his right to counsel by P.C. Brown, who, like P.C. Sapeta, read the standard statement from his duty book, which included references to the 1-800 Legal Aid phone number and duty counsel. P.C. Brown testified that he could not remember the specific words used by Mr. Walsh in response to P.C. Brown having read him his right to counsel, “but he indicated to me that he understood and that he’d already contacted a lawyer and he was satisfied with that call.”[^9]

[27] The trial judge found that at 7:49 p.m., Mr. Walsh registered a first reading of 214 milligrams of alcohol in 100 millilitres of blood.[^10]

[28] After Mr. Walsh provided his first breath sample, P.C. Brown charged him with the “over 80” offence and again provided Mr. Walsh with his right to counsel, albeit he paraphrased the right to counsel rather than reading them again directly from his duty book. P.C. Brown testified that he asked Mr. Walsh if he understood his rights, advised him that he had the right to call a lawyer or Legal Aid for free legal advice, and asked him if he wished to do so. The evidence of P.C. Brown was that Mr. Walsh declined to speak with a lawyer at that time.

[29] The trial judge found that at 8:12 p.m., Mr. Walsh registered a second reading of 204 milligrams of alcohol in 100 millilitres of blood.[^11]

[30] At trial, defence counsel argued that the police did not properly inform Mr. Walsh of his right to counsel or make him aware of all the important options available to him.

[31] P.C. Sapeta was specifically cross-examined on whether the statement by Mr. Walsh that he did not know who to call would not have meant that he had some questions about his right to counsel. P.C. Sapeta replied that he disagreed with counsel’s suggestion and stated:

What that means to me from his response was that he acknowledges that he has an opportunity to contact a lawyer. He’s accepted that opportunity to contact a lawyer, and his response was, when asked, Who? His answer was, I don’t know who. So that would’ve been immediately after given the opportunity to call a lawyer, his response was, I don’t know who. So it, it brought no, no question in my mind that number one, he didn’t understand or any part of his rights to counsel or the opportunity to call. … He simply just didn’t know who. That was his answer.[^12]

[32] In re-examination, P.C. Sapeta was asked whether Mr. Walsh expressed any confusion to the officer about his right to counsel at the roadside. The constable replied in the negative, testifying that:

I was very satisfied that the accused understood the readings that I had put to him as it relates to his rights to counsel and caution. He was cooperative. It was not a – well, he, he was just simply cooperative. It was read to him in the fashion that he understood, and I was – he answered questions put to him. I found that he was of an operating mind and I had no concerns that he didn’t understand what I was telling him.[^13]

[33] For his part, Mr. Walsh testified that while he recalled certain words that P.C. Sapeta used when informing him of his right to counsel, he could not remember all of them.

[34] In particular, Mr. Walsh testified that he did not recall P.C. Sapeta, Sgt. Mullins, or P.C. Brown referring to the terms “Legal Aid” or “duty counsel” when they provided him with his right to counsel.

[35] It is fair to say that, as is clear from the evidence of Mr. Walsh given in his examination-in-chief and cross-examination, he did not have a clear recollection of the details of the night of his arrest. For example, Mr. Walsh was asked about his recollection of the questions that he was asked by Sgt. Mullins during his booking-in. He testified as follows:

Q. Okay. Do you recall what questions he asked you?

A. Basically when I was talking to Mr. Mullin, or Officer Mullin, it was about the lawyers.

Q. It was about the lawyers?

A. Yes.

Q. Do you remember him asking you questions about anything else?

A. No, no.

Q. So if I were to suggest to you, if I were to suggest to you that he in fact asked you if at the time you were suffering from any illnesses. Do you agree that he may have asked you that?

A. I don’t recall him asking me that.

Q. Do you recall him asking you if you had taken any medication?

A. I remember Officer Sapeta asked me if I took medication.

Q. Okay. Do you remember whether Sergeant Mullins asked you that?

A. No.

Q. Do you recall Sergeant Mullins indicating, or asking you if you had any injuries at the time?

A. No.

Q. And do you believe it’s possible that those questions may have been asked of you but you just don’t recall them?

A. It’s been 15 months.

Q. So it’s possible?

A. Everything’s possible.[^14]

[36] At trial, the central issue on the section 10(b) issue was whether the police authorities violated the informational component of the section 10(b) right by failing to advise Mr. Walsh of the availability of Legal Aid and duty counsel, including the 1-800 number to access this free legal advice from a duty counsel lawyer immediately.[^15] Defence counsel argued that this led to Mr. Walsh not being afforded the opportunity to speak with a lawyer of his choice. It was said that Mr. Walsh would have called duty counsel had he known he could do so.

[37] Defence counsel further argued that, even if the trial judge should find that the police did provide Mr. Walsh with the 1-800 number, the officers failed to ensure that Mr. Walsh understood that free and immediate legal advice was available to him through a duty counsel lawyer.

[38] The central issue being factual, the trial judge proceeded to conduct a credibility analysis. The trial judge reviewed and assessed the evidence of P.C. Sapeta as follows:

In assessing that credibility, first of all, I found the evidence of Officer Sapeta to be firm, fair, detailed and in my view, credible. There was much focus by defence counsel on the lack of detail in Officer Sapeta’s notes, therefore, arguably reflecting adversely on his credibility and the reliability of his evidence. While that issue is important, and while in some circumstances that may well be the case, in this particular case, in my view, the officer’s notes were well correlated to the evidence that he provided. It was not unreasonable for the officer’s notes to use short-forms for traffic stop, for example. As it was also clear that his notes referred to ‘questioned re: alcohol and rolling motor vehicle.’ The words ‘RTC’, reflecting rights to counsel also provided, without specifically mentioning the 1-800 number, a reflection that he had met his obligation and really referred to what is fully outline on the card that is contained in his notebook.[^16]

[39] The trial judge also reviewed the evidence of Mr. Walsh at considerable length, accepting some of his explanations and noting, among other things, that:

Mr. Walsh, himself testified and while he admitted consuming some alcohol, he testified that it had no effect and caused no impairment in his view, and he denied the physical symptoms and effects of alcohol upon him that were described by the officers in the case. …

Mr. Walsh denied the officer’s evidence to the effect that the reason for the stop was discussed with him or that the officer read the portion of his rights relating to the availability of the 1-800 number from the standard cards and testified that he did not know about that number and would have obviously utilized that had he known.[^17]

[40] The trial judge noted the contrast between the evidence of Mr. Walsh and that of the three police witnesses, and expressed some concern for the reliability of Mr. Walsh’s evidence, as follows:

The evidence of Officers Brown and Mullins in this case was consistent with that of Officer Sapeta about observations of the effects of alcohol upon Mr. Walsh, and in my view, that was important in this case. With respect to Mr. Walsh’s credibility in the face of the evidence of those three officers, his self-assessment about his physical condition relating to the effects of alcohol and then leading to a specific recollection of never being told about the 1-800 number and the reasons for his detention, in my view, stand in stark contrast to the evidence, not only of Officer Sapeta but also of the breathalyzer technician, about Mr. Walsh’s condition and about the advice he was given about his right to counsel. And this is highly relevant, in my view, to the reliability of Mr. Walsh’s evidence overall and in large measure is the foundation for my consideration that his evidence on these points were [sic] not reliable.[^18]

[41] Attempting to reconcile the evidence of Mr. Walsh with that of the police witnesses, the trial judge suggested that it was Mr. Walsh’s condition at the time of the traffic stop that might explain why he did not remember the 1-800 number being provided; but she made a specific finding that his lack of memory was not a result of any failure of the officers to provide the requisite information to him, as follows:

In my view, it is not surprising to the Court that Mr. Walsh might have forgotten hearing a number, like a 1-800 number being read out loud or may not have digested it, given the stressful situation he was in when the words were being uttered to him. But in my view, it was not as a result of the failure of officers to provide the basic information to him, and I was satisfied that each of them did testify accurately about providing the rights to counsel. I did not accept that the officers omitted this portion of the standard rights to counsel, either accidentally or deliberately, and that the accused was not informed of this option.[^19]

[42] The trial judge made a specific credibility finding that she accepted the evidence of P.C. Sapeta where it conflicted with that of Mr. Walsh in relation to what the officer said to him, and rejected the evidence of Mr. Walsh where it differed on these points.[^20]

[43] At trial, defence counsel relied on the Supreme Court of Canada’s decision in R. v. Evans[^21] for, essentially, the proposition that the purpose of s. 10(b) is to require the police to communicate the right to counsel to the detainee and, in certain circumstances, they must take steps to facilitate that understanding. The trial judge rejected the submission that R. v. Evans was applicable to the facts before her, as follows:

In my view, the facts in this case are quite different from the case of R. v. Evans, which was relied upon by defence. Officer Sapeta testified that he read Mr. Walsh his complete rights to counsel including Legal Aid and caution and then the cautioning, and Mr. Walsh clearly did say he wanted to contact a lawyer at the police station, he just did not know who. Mr. Walsh was then transported to the station in a timely way and at the station he was shown a list of lawyers, and it was the booking in officer, Sergeant Mullins, with whom he had a brief discussion. The booking officer was asked by him who he thought he should call. In response, the officer said it was his experience that Mr. McFadden generally answered his phone and was usually accessible, and it was in response to that question that the suggestion was made.[^22]

[44] The trial judge also made a specific finding that, Mr. Walsh having exercised his right to counsel and having spoken with Mr. McFadden, it was reasonable for the police to conclude that he was satisfied with his conversation with Mr. McFadden, as follows:

Mr. Walsh did exercise his right to counsel and confirmed to police at the time that he completed his telephone consultation and in these circumstances, in my view, it was reasonable for the police to conclude that he had been satisfied with that and was not looking for any other alternatives. Whether he was satisfied or not in hindsight is not the relevant issue here.[^23]

[45] In the result, the trial judge concluded that there was no violation of Mr. Walsh’s Charter rights by the manner in which the Sarnia Police dealt with him in this matter.[^24] Accordingly, the Charter application was dismissed, and the trial judge found that the Crown had met its burden in relation to the “over 80” charge in count two.

Issue

[46] The appellant raises the following issues on this appeal:

a. Did the trial judge misapprehend the evidence by failing to consider whether the police violated Mr. Walsh’s right to counsel by failing to ensure that he understood those rights?

b. Did the trial judge misapprehend the evidence regarding Mr. Walsh’s election to contact Mr. McFadden?

c. Did the trial judge err in admitting into evidence the results of the analysis of Mr. Walsh’s breath samples pursuant to s. 24(2) of the Charter?

Standard of Review

[47] The limited powers of a summary conviction appeal court are set out in s. 822(1) of the Code, which incorporates by reference the powers of the Court of Appeal as set out in s. 686 of the Code. As such, on an appeal against conviction, a summary conviction appeal court may allow the appeal only where:

a. the verdict is unreasonable or cannot be supported by the evidence;

b. the trial judge erred on a question of law; or

c. there was a miscarriage of justice on any ground.

[48] The limited jurisdiction of a summary conviction appeal judge was described by the Ontario Court of Appeal in R. v. Smits, where the Court held that:

Under s. 686(1)(a)(i) and s. 822(1) of the Criminal Code, the jurisdiction of the summary conviction appeal judge to review the finding as to sufficiency of the evidence is limited. A summary conviction appeal judge is not entitled to retry the case or to substitute his or her own view of the evidence for that of the trial judge. A summary conviction appeal judge has no basis upon which to interfere with a trial judge’s findings unless they are unreasonable or unsupported by the evidence[.][^25]

[49] Our Court of Appeal has said that the function of a summary conviction appeal judge is to determine whether the trial judge could reasonably have reached the conclusion that the appellant was guilty beyond a reasonable doubt.[^26]

[50] To the same effect is the recent reiteration by our Court of Appeal in R. v. Polanco, released May 11, 2018, where Nordheimer J.A. said on behalf of the unanimous court that:

The jurisdiction of a summary conviction appeal judge is limited. A summary conviction appeal judge is not entitled to retry the case or to substitute his or her own view of the evidence for that of the trial judge. A summary conviction appeal judge is also not entitled to interfere with a trial judge’s findings unless they are unreasonable or unsupported by the evidence[.][^27]

Analysis

Did the trial judge misapprehend the evidence by failing to consider whether the police violated Mr. Walsh’s right to counsel by failing to ensure that he understood those rights?

[51] This ground of appeal very much turns on the exchange between P.C. Sapeta and Mr. Walsh at the roadside at the time of the traffic stop.

[52] It will be remembered that the evidence of P.C. Sapeta was that he read Mr. Walsh his right to counsel using the standard language from the back of his duty book. He then asked Mr. Walsh if he understood his right to counsel, and Mr. Walsh indicated that he did. P.C. Sapeta made a notation in his duty book that Mr. Walsh understood his rights. P.C. Sapeta then asked Mr. Walsh if he wished to call a lawyer at that point, and Mr. Walsh replied, “I don’t know who.”

[53] The position of the appellant – and it is fundamental to this ground of appeal – is that the fact that Mr. Walsh indicated that he did not know what lawyer to call immediately after having been read his right to counsel ought to have alerted P.C. Sapeta to the fact that Mr. Walsh did not understand his right to counsel, and ought to have engaged some further duty on the part of P.C. Sapeta to facilitate Mr. Walsh’s understanding of his right to counsel, consistent with the principle in R. v. Evans.

[54] It is further argued that the trial judge erred in failing to engage in any meaningful analysis into whether Mr. Walsh’s response of “I don’t know who” could reasonably be viewed as a positive indication that Mr. Walsh did not under understand his right to counsel.

[55] I find no merit in this submission.

[56] It is clear from the evidence before the trial judge that the police officers did not accept the fundamental point of the defence that the statement by Mr. Walsh that he did not know what lawyer to call could reasonably be regarded as some indication that he did not understand his right to counsel. It is apparent that the trial judge was of the same view.

[57] As set out in paras. 15-16 of the appellant’s factum, P.C. Sapeta was specifically cross-examined on whether the “I don’t know who” statement by Mr. Walsh would not have meant that he had some questions about his right to counsel. P.C. Sapeta replied, “I disagree with that.” As referenced above, P.C. Sapeta disagreed with counsel’s suggestion and stated:

What that means to me from his response was that he acknowledges that he has an opportunity to contact a lawyer. He’s accepted that opportunity to contact a lawyer, and his response was, when asked, Who? His answer was, I don’t know who. So that would’ve been immediately after given the opportunity to call a lawyer, his response was, I don’t know who. So it, it brought no, no question in my mind that number one, he didn’t understand or any part of his rights to counsel or the opportunity to call. … He simply just didn’t know who. That was his answer. [Emphasis added.]

[58] The fact that P.C. Sapeta gave that particular immediate response is telling, in my view. It is essentially a reflection of the point later made by Crown counsel on appeal before me that, far from the “I don’t know who” statement indicating that Mr. Walsh may not have fully understood his right to counsel, that statement actually corroborates his understanding of his s. 10(b) rights. As P.C. Sapeta put it, by raising that question, Mr. Walsh was acknowledging that he understood he had the right to be given an opportunity to contact a lawyer. That response indicates that having been read his right to counsel, he understood his right, he had generalized the information, and he then asked the next logical question: who?

[59] In short, that response shows that Mr. Walsh understood his right to counsel.

[60] That evidence is consistent with the other evidence of P.C. Sapeta that he was satisfied that Mr. Walsh understood his right to counsel, all of which evidence was before the trial judge. Again, the evidence of P.C. Sapeta was that:

I was very satisfied that the accused understood the readings that I had put to him as it relates to his rights to counsel and caution. He was cooperative. … It was read to him in the fashion that he understood, and I was – he answered questions put to him. I found that he was of an operating mind and I had no concerns that he didn’t understand what I was telling him.

[61] As I have said, the trial judge made specific findings of credibility. The trial judge found the evidence of P.C. Sapeta to be “firm, fair, detailed and in my view, credible.” Again, the trial judge made a specific credibility finding that she accepted the evidence of P.C. Sapeta where it conflicted with that of Mr. Walsh in relation to what the officer said to him, and rejected the evidence of Mr. Walsh where it differed on these points.

[62] Moreover, there was no evidence before the trial judge, including from Mr. Walsh, that he did not understand what was said to him. Specifically, Mr. Walsh never testified that he did not understand what was said to him. Indeed, he testified that when P.C. Sapeta asked Mr. Walsh if he understood what the officer had read to him, Mr. Walsh answered “yes.”[^28] The gist of Mr. Walsh’s evidence was not that he did not understand his rights; it was that he did not remember certain portions being read to him.

[63] Thus, it will be seen that the evidentiary record before the trial judge in the instant case was materially and vastly different than the circumstances in R. v. Evans, upon which both trial counsel and appellate counsel before me relied.

[64] In Evans, the accused was convicted of first degree murder in the brutal killings of two women. He was 21 years of age at the time of his arrest. When he was a boy of only nine years, he had been struck by a truck at a cross-walk and suffered brain injuries. The Supreme Court of Canada characterized him as “a youth of subnormal mental capacity.”[^29] Initially, the police thought his brother had committed the murders, and arrested Evans on a marijuana charge in the hope that he would be able to provide evidence against his brother. The police informed Evans of his right to counsel, but when asked if he understood his rights, he replied “no.”

[65] It was against that factual background that the Supreme Court went on to hold that there had been a breach of Evans’ right to counsel under s. 10(b) of the Charter, as follows:

Dealing first with the initial arrest, I am satisfied that the police did not comply with s. 10(b). It is true that they informed the appellant of his right to counsel. But they did not explain that right when he indicated that he did not understand it. A person who does not understand his or her right cannot be expected to assert it. The purpose of s. 10(b) is to require the police to communicate the right to counsel to the detainee. In most cases one can infer from the circumstances that the accused understands what he has been told. In such cases, the police are required to go no further (unless the detainee indicates a desire to retain counsel, in which case they must comply with the second and third duties set out above.) But where, as here, there is a positive indication that the accused does not understand his right to counsel, the police cannot rely on their mechanical recitation of the right to the accused; they must take steps to facilitate that understanding.[^30] [Underlined emphasis in original; italicized emphasis added.]

[66] The instant case most certainly did not involve an accused of diminished mental capacity caused by catastrophic brain injury. It did not involve an accused who, when asked if he understood his right to counsel, immediately replied “no.” On the contrary, this is a case of the exact opposite; when Mr. Walsh was asked if he understood his rights by P.C. Sapeta, he replied, “yes.” In my view, this is precisely one of the many cases where, as the court contemplated in Evans, “one can infer from the circumstances that the accused understands what he has been told.” As such, according to the Supreme Court of Canada, the police were required to go no further.

[67] Thus, while I agree with para. 17 of the appellant’s factum that the trial judge here “referred only briefly to the argument advanced by trial counsel” based on Evans, the trial judge did not err by giving short shrift to that argument. In my view, it was not deserving of more. The trial judge correctly concluded that the facts of the case before her were “quite different from the case of R. v. Evans.” Thus, I conclude that, contrary to para. 20 of the appellant’s factum, the trial judge did not err in law in her application of the principles enunciated in Evans to the circumstances of the instant case.

[68] I conclude that the trial judge did not misapprehend the evidence before her by failing to find that Mr. Walsh did not understand his s. 10(b) rights or “by failing to consider whether the police violated Mr. Walsh’s right to counsel by failing to ensure that he understood those rights.”

Did the trial judge misapprehend the evidence regarding Mr. Walsh’s election to contact Mr. McFadden?

[69] The appellant’s second ground of appeal involves the question of how Mr. Walsh came to be placed in contact with Mr. McFadden, the lawyer he spoke with on the evening of his arrest. In particular, it involves the interaction between Mr. Walsh and the booking-in officer, Sergeant Mullins, at the Sarnia Police Service station.

[70] In this regard, Ms. Comand submitted that Mr. Walsh was the only witness able to provide direct evidence as to any detail of that exchange at the station because when Sgt. Mullins was called to testify at trial, he very candidly said that he had no independent recollection of the events in question concerning Mr. Walsh that evening.

[71] The appellant challenges the trial judge’s treatment of the evidence of that exchange. Again, the trial judge found that:

… and Mr. Walsh clearly did say he wanted to contact a lawyer at the police station, he just did not know who. Mr. Walsh was then transported to the station in a timely way and at the station he was shown a list of lawyers, and it was the booking in officer, Sergeant Mullins, with whom he had a brief discussion. The booking officer was asked by him who he thought he should call. In response, the officer said it was his experience that Mr. McFadden generally answered his phone and was usually accessible, and it was in response to that question that the suggestion was made.

[72] The essence of the argument of the appellant on this ground is that, similar to the argument on the first ground that Mr. Walsh did not understand his right to counsel, Mr. Walsh did not know what his options were. It is said that the error of the trial judge was essentially finding that it was Mr. Walsh’s choice to contact the lawyer that he did, i.e., Mr. McFadden. The appellant submits that the evidence does not support the finding that Mr. Walsh elected on his own to call Mr. McFadden. The gravamen of the breach, the appellant submits, is that it was essentially the police directing Mr. Walsh as to what particular lawyer to call.

[73] I find no merit in those submissions.

[74] Counsel for the appellant submitted that while the trial judge seemed to find that it was Mr. Walsh who asked Sgt. Mullins whom he should call (i.e., the “booking officer was asked”, “in response to that question”), that was not the actual evidence before the court. Counsel submitted that at no point did Mr. Walsh testify that he asked Sgt. Mullins to provide him with advice as to which lawyer he should call.

[75] The evidence of Mr. Walsh was that when he was at the station and being booked-in by Sgt. Mullins, the Sergeant asked whether Mr. Walsh wanted to speak with a lawyer, and again, as he had done roadside with P.C. Sapeta, Mr. Walsh indicated that he did not know who to call.[^31]

[76] While I appreciate counsel’s point that the trial judge “seemed to find” that Mr. Walsh asked Sgt. Mullins who he should call, I place little if any weight on the point that there was no evidence before the trial judge that Mr. Walsh actually asked a question of Sgt. Mullins as to who he should call.

[77] I accept the point that a person’s statement to the effect of “I don’t know who to call” does not, grammatically speaking, constitute a question. However, within common parlance, most reasonable people would understand that by the statement “I don’t know who to call,” the speaker was raising a query. As I read the trial judge’s summary, she essentially found that Mr. Walsh, not knowing who to call, asked for assistance. That was a characterization that was open to her to make on the evidence before her.

[78] Indeed, that very same characterization would seem to have been accepted by defence counsel at trial. That is, at trial, defence counsel repeatedly put to P.C. Sapeta that Mr. Walsh’s “I don’t know who” statement meant that he had some “question” as to his understanding of his right to counsel. It is clear that defence counsel considered that the “I don’t know who to call” statement was a “question” that Mr. Walsh asked of the police officers, as is evident in the repeated references in the following exchange:

Q. But I’m suggesting that the, the question, and I don’t know what it was, but if he says, I don’t know who to contact, wouldn’t that – go ahead. Do you, do you want to look at your notes or?

A. No. No. I’m just waiting for the question.

Q. Okay. If he says, I don’t know who to contact or I don’t know who …?

A. “I don’t know who” would be what he said, yes.

Q. “I don’t know who”?

A. Right.

Q. Well doesn’t that, wouldn’t that mean that he’s got some questions about the rights to counsel? Wouldn’t that mean that to you, that he’s got some questions? I mean if he says: “I don’t know who”, that means he’s got some questions, doesn’t he?

A. I disagree with that.

Q. Okay. “I don’t know who” means no question at all to you, is that fair?

A. What that means to me from his response was that he acknowledges that he has an opportunity to contact a lawyers. … [Emphasis added.][^32]

[79] Accordingly, given that it is accepted that Mr. Walsh indicated to Sgt. Mullins that he did not know who to call, I attach no particular significance to the fact that the trial judge characterized that query – as did defence counsel at trial – as a “question” posed to Sgt. Mullins. Indeed, I regard the point as a bit of a semantic distinction, and the appeal should not turn on such points. The trial judge did not misapprehend the evidence when she stated in her summary of the exchange that Sgt. Mullins “was asked” by Mr. Walsh who to call.

[80] The evidence before the trial judge does not support the contention that Mr. Walsh did not understand that he had options or that he did not know what his options were. The trial judge found on the evidence before her, after making findings of credibility and rejecting the evidence of Mr. Walsh on point, that the police officers told Mr. Walsh that one of his options was to apply to Legal Aid for assistance, to call the 1-800 number to be put in contact with a Legal Aid duty counsel lawyer for free legal advice, etc.

[81] Further, it is common ground that during the booking-in process, Sgt. Mullins provided Mr. Walsh with a laminated sheet setting out a list of lawyers. The evidence of Mr. Walsh himself is inconsistent with the suggestion that he did not appreciate that he had options. The following exchange took place during cross-examination:

Q. Now do you agree, sir, that when Sergeant Mullins showed you that laminated sheet with a list of lawyers, he indicated to you, Here’s a list of lawyers you could choose from?

A. He indicated three was a list of lawyers, yes.

Q. That you could choose from.

A. Yes.

Q. To call for advice …

A. Mm-hmm.

Q. … regarding your arrest?

A. Yes.

Q. And it’s not as though you looked at that sheet and said, I’d like to call this number or this person, and any officer said, no?

A. No.[^33]

[82] The trial judge did not find that Sgt. Mullins or any other police officer directed Mr. Walsh to choose Mr. McFadden. In her summary of the exchange during the booking-in process, the trial judge found that Mr. Walsh said to Sgt. Mullins he did not know who to call. That much is common ground. In response, Sgt. Mullins indicated it was his experience that Mr. McFadden generally answered his phone and was usually accessible. The trial judge characterized Sgt. Mullins’ response as a “suggestion.” Hence, the trial judge found that, “it was in response to that question [by Mr. Walsh] that the suggestion [by Sgt. Mullins] was made.”

[83] In my view, there was ample evidence before the trial judge to support the findings that she made.

[84] There was no evidence from Mr. Walsh that Sgt. Mullins told him he must call Mr. McFadden. Mr. Walsh did not attempt to put any such words in the mouth of Sgt. Mullins. Rather, what Mr. Walsh said Sgt. Mullins said was that Mr. McFadden would “answer his phone.” Mr. Walsh testified to that repeatedly. In examination-in-chief, Mr. Walsh said: “And then Officer Mullin[s], I said I wasn’t sure who to call and he’s – pointed to a Mr. McFadden on the list, said, Call him. He’ll answer his phone.”[^34]

[85] In the same vein, in cross-examination, Mr. Walsh testified that:

a. “He just showed me a list and then he – well I looked at it for a little bit and then he said, Well this guy, this one will answer his phone call, yeah.”[^35]

b. “And I was looking through the list and he indicated that Mr. McFadden would answer his call, yeah.”[^36]

c. “He just said that he will answer his phone.”[^37]

[86] Thus, there was ample evidence before the trial judge to support her finding that “the officer said it was his experience that Mr. McFadden generally answered his phone and was usually accessible.”

[87] The trial judge did not find that Sgt. Mullins directed or pressured Mr. Walsh into calling Mr. McFadden. Indeed, questions to that effect were put to Mr. Walsh, and he flatly denied it. The following exchange took place in cross-examination:

Q. Okay. And Sergeant Mullins certainly didn’t say, You must call Mr. McFadden, did he?

A. He just said that he will answer his phone.[^38]

[88] And then later in cross-examination, again, there was the following exchange:

Q. And it’s not as though you looked at that sheet and said, I’d like to call this number or this person, and any officer said, no?

A. No.[^39]

[89] The evidence before the trial judge simply does not support the appellant’s contention that it was essentially the police directing Mr. Walsh as to what particular lawyer to call.

[90] Indeed, there is some irony in that submission, in that, there was some criticism of P.C. Sapeta when he did not fully respond at the roadside when Mr. Walsh indicated that he did not know who to call; but then, when the very same statement is made to Sgt. Mullins, and he responds with a suggested name, then the argument is that the police were directing Mr. Walsh as to who to call.

[91] For all of these reasons, the second ground of appeal must fail as well.

Did the trial judge err in admitting into evidence the results of the analysis of Mr. Walsh’s breath samples pursuant to s. 24(2) of the Charter?

[92] The appellant submits that the trial judge erred in her application of the principles enunciated by the Supreme Court of Canada in its seminal decision in R. v. Grant[^40] in deciding to admit into evidence the results of the analysis of Mr. Walsh’s breath samples pursuant to s. 24(2) of the Charter.

[93] However, in argument before me, Ms. Comand quite fairly and correctly conceded that if I conclude that the trial judge did not err in finding that Mr. Walsh’s s. 10(b) rights had not been violated, then the third ground of appeal is moot.

[94] Accordingly, given my conclusions on the first two grounds, it is unnecessary to deal with the third ground.

Conclusion

[95] Having determined the issues on appeal, I echo the comments made by the trial judge at the conclusion of her trial judgment that the most troubling aspect of this outcome is the impact that an upheld conviction will have on Mr. Walsh’s occupation and livelihood. In this regard, I have reviewed the affidavit of Mr. Walsh sworn July 19, 2017, that was filed in support of his application for a stay of the suspension of his driver’s licence.[^41] I too wish that impact were otherwise. However, my task is to determine the issues on appeal without passion or prejudice.

[96] I conclude that the appellant has failed to establish that the trial judge misapprehended the evidence or that her findings were unreasonable or unsupported by the evidence.

[97] Indeed, in my view, the trial judge’s conclusion that the police officers did not violate Mr. Walsh’s right to counsel under s. 10(b) of the Charter was reasonable and amply supported by the evidence before her. There is no basis for appellate intervention.

[98] Accordingly, the appeal must be dismissed.

Original signed by Justice J. Paul R. Howard

J. Paul R. Howard

Justice

Date: February 08, 2019

SARNIA COURT FILE NO.: 1937/17-AP

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

STEVEN WALSH

Appellant

REASONS ON APPEAL

Howard J.

Released: February 08, 2019

[^1]: Criminal Code, R.S.C. 1985, c. C-46.

[^2]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

[^3]: Transcript of the Reasons for Judgment in HMQ. v. Steven Walsh, of D.V. Austin J., Ontario Court of Justice, delivered May 15, 2017 [“Reasons for Judgment”].

[^4]: Transcript of the proceedings at trial, taken November 14, 2016, at p. 11, l. 11, examination-in-chief of P.C. Sapeta.

[^5]: Ibid., at p. 58, ll. 9-10, cross-examination of P.C. Sapeta.

[^6]: Ibid., at p. 18, ll. 19-20, examination-in-chief of P.C. Sapeta.

[^7]: Ibid., at p. 18, ll. 23-25, examination-in-chief of P.C. Sapeta.

[^8]: Ibid., at p. 90, ll. 24-29, examination-in-chief of P.C. Brown.

[^9]: Ibid., at p. 92, ll. 4-6, examination-in-chief of P.C. Brown.

[^10]: Reasons for Judgment, at p. 10, ll. 5-6.

[^11]: Reasons for Judgment, at p. 10, ll. 7-8.

[^12]: Transcript of the proceedings at trial, taken November 14, 2016, at p. 57, ll. 20-28 and p. 58, ll. 2-3, cross-examination of P.C. Sapeta.

[^13]: Ibid., at p. 75, ll. 25-32, re-examination of P.C. Sapeta.

[^14]: Transcript of the proceedings at trial, taken February 15, 2017, at p. 29, l. 14 to p. 30, l. 12, cross-examination of Mr. Walsh.

[^15]: Reasons for Judgment, at p. 4.

[^16]: Ibid., at pp. 4-5.

[^17]: Ibid., at pp. 5-6.

[^18]: Ibid., at pp. 6-7.

[^19]: Ibid., at p. 7.

[^20]: Ibid., at pp. 7-8.

[^21]: R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, 63 C.C.C. (3d) 289.

[^22]: Reasons for Judgment, at pp. 8-9.

[^23]: Ibid., at p. 7. See also the trial judge’s similar conclusion with respect to the exchange between Mr. Walsh and P.C. Brown, at pp. 9-10.

[^24]: Ibid., at p. 10.

[^25]: R. v. Smits, 2012 ONCA 524, 36 M.V.R. (6th) 217 (C.A.), at para. 67 [citations omitted], citing R. v. Grosse (1996), 1996 CanLII 6643 (ON CA), 29 O.R. (3d) 785, 107 C.C.C. (3d) 97 (C.A.), at pp. 791-792 [cited to O.R.].

[^26]: R. v. Grosse, at pp. 791-792, citing R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, 74 C.C.C. (3d) 134, at pp. 131-132 [cited to S.C.R.].

[^27]: R. v. Polanco, 2018 ONCA 444, at para. 20 [citations omitted], citing R. v. O’Meara, 2012 ONCA 420, 284 C.C.C. (3d) 567, at para. 36.

[^28]: Transcript of the proceedings at trial, taken February 15, 2017, p. 27, ll. 1-3, cross-examination of Mr. Walsh.

[^29]: R. v. Evans, at p. 876 per McLachlin J. (as she then was).

[^30]: Ibid., at p. 891 per McLachlin J.

[^31]: Transcript of the proceedings at trial, taken February 15, 2017, at p. 24, ll. 24-29, cross-examination of Mr. Walsh.

[^32]: Transcript of the proceedings at trial, taken November 14, 2016, p. 57, ll. 1-21, at examination-in-chief of P.C. Sapeta.

[^33]: Transcript of the proceedings at trial, taken February 15, 2017, at p. 27, l. 19 to p. 28, l. 1, cross-examination of Mr. Walsh.

[^34]: Ibid., at p. 12, ll. 23-25, examination-in-chief of Mr. Walsh.

[^35]: Ibid., at p. 25, ll.7-10, cross-examination of Mr. Walsh.

[^36]: Ibid., at p. 25, ll. 17-18, cross-examination of Mr. Walsh.

[^37]: Ibid., at p. 25, l. 21, cross-examination of Mr. Walsh.

[^38]: Ibid., at p. 25, ll.19-21, cross-examination of Mr. Walsh.

[^39]: Ibid., at p. 27, l. 30 to p. 28, l. 1, cross-examination of Mr. Walsh.

[^40]: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[^41]: Our Court of Appeal has held that a judge is entitled to take judicial notice of what is in the court file: Wallbridge v. Brunning, 2018 ONCA 363, 422 D.L.R. (4th) 305, at para. 18.