COURT FILE NO.: CR-19-30000083-00AP
DATE: 20200608
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SURESH PERSAUD
M. Giovinazzo, for the Crown
J. Marchand, for Mr. Persaud
HEARD: 30 April 2020
S.A.Q. Akhtar J.
[1] On appeal from the conviction entered on 9 October 2019 by Justice Philip Downes of the Ontario Court of Justice.
FACTUAL BACKGROUND AND OVERVIEW
Background Facts
[2] On 24 June 2018, the appellant was seen driving his vehicle at speeds between 140 and 160 kilometres an hour on Highway 401. After leaving the highway using the Markham Road exit, he was stopped by police who detected a strong odour of alcohol inside the vehicle. As there was a passenger also situated in the car, police asked the appellant to step outside to identify the source of the smell. When he did so, the detaining officer, Constable Ryan Stone, smelt alcohol on his breath. When questioned, the appellant indicated he had consumed alcohol three hours earlier.
[3] As a result, PC Stone demanded a breath sample into an approved screening device. The appellant failed the test and was arrested. At the police station, a breath technician recorded two samples of 110 milligrammes of alcohol in 100 millilitres of blood. The appellant was accordingly charged with driving with over 80 milligrammes of alcohol in 100 millilitres of blood (“Over 80”) in addition to stunt driving pursuant to s. 172(1) of the Highway Traffic Act.
[4] At trial, the appellant brought an application to exclude the breath readings claiming a violation of his ss. 8 and 10(b) Charter rights. On the voir dire, the Crown called the two arresting officers. The appellant testified but only as a witness on the voir dire.
[5] The trial judge dismissed the application and admitted the breath readings, ultimately convicting the appellant of both charges.
Grounds of Appeal
[6] On appeal, the appellant alleges the following three errors made by the trial judge:
The trial judge applied uneven scrutiny to his analysis of the evidence;
The trial judge erroneously relied on repealed legislation to establish guilt;
The trial judge erred in dismissing the s. 10(b) Charter application.
[7] For the following reasons, the appeal is dismissed.
I. DID THE JUDGE APPLY UNEVEN SCRUTINY TO THE EVIDENCE?
The Legal Principles
[8] The appellant argues that there was an uneven approach in the trial judge’s analysis which resulted in an unreasonable finding against the appellant yet offered no meaningful analysis of the police evidence. More specifically, the appellant complains that the judge failed to address defence concerns about police note taking, the wording of the right to counsel, and the general credibility of the police witnesses.
[9] The argument of uneven scrutiny is a difficult one to make. In R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59, the court described this ground of appeal in the following way:
This argument or some variation on it is common on appeals from conviction in judge alone trials where the evidence pits the word of the complainant against the denial of the accused and the result turns on the trial judge’s credibility assessments. This is a difficult argument to make successfully. It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.
[10] This ground of appeal does not offer an opportunity to retry the case and revisit the judge’s credibility findings: R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at para. 23. An appellate court may only interfere with a judge’s determination of the facts in the event of palpable and overriding error: R. v. George, 2016 ONCA 464, 349 O.A.C. 347, at para. 35; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20.
Did the Judge Apply Uneven Scrutiny?
[11] In this case, the only defence evidence was the appellant’s testimony in the Charter voir dire. Unlike the verdict in a trial, the appellant bore the burden of proving the Charter breach on a balance of probabilities. It therefore made sense that the trial judge would focus on his evidence to determine whether the application would succeed. The judge found that the appellant was fully aware of his s. 10(b) rights and that he was content to speak to duty counsel.
[12] The judge also accepted, as true, the appellant’s evidence that he was satisfied after his conversation with duty counsel and rejected the appellant’s evidence that he was confused or misled by the police. The judge also found the appellant’s testimony that he did not realise that duty counsel was a lawyer to be incredible. The judge’s credibility findings were based not only on the appellant’s assertions but also the video evidence adduced. As the appellant candidly admits in his factum, the judge was entitled to make the findings that he did.
[13] It is also noteworthy that the appellant confirmed much of the police evidence regarding the right to counsel.
[14] I find that the appellant has failed to identify anything in the judge’s reasons that indicate uneven scrutiny of the evidence.
[15] This ground of appeal is therefore dismissed.
II. DID THE JUDGE ERRONEOUSLY RELY ON REPEALED LEGISLATION?
Introduction
[16] The appellant argues that the trial judge convicted him on the basis of legislation that had been repealed and was no longer in effect at the time of his trial; namely, the evidentiary presumption contained in the former s. 258(1)(c) of the Code.
[17] This argument arises from the decision of R. v. Shaikh, 2019 ONCJ 157, 49 M.V.R. (7th) 130, where Burstein J. held that the “presumption of identity” in impaired cases did not apply to charges with an offence date prior to 18 December 2018 if the trial commenced after that date (“transition cases”). In Burstein J.’s view, the Parliamentary repeal of the statutory sections creating the presumption meant that this evidentiary tool was no longer available to the Crown when seeking to discharge its onus of proof. Accordingly, Burstein J. held that, absent defence concession, the Crown was required to call toxicological evidence to prove an accused charged with an “Over 80” offence was over the legal limit at the time of driving.
[18] The appellant argues that by failing to call such evidence in his case, the trial judge was obliged to acquit of that charge.
[19] The Shaikh decision has been the subject of much litigation spawning a cottage industry of cases dealing with the issue, nearly all of them rejecting the decision and finding that the presumption applied to transition cases.
[20] There have been appellate cases from other provinces which have declined to follow Shaikh: see R v Cameron, 2020 NSSC 58; R v McManus, 2019 ABQB 829, 55 M.V.R. (7th) 31, leave to appeal to Alta. C.A. granted, 2020 ABCA 84 (leave granted on a different issue). However, I am advised by counsel that there have been no appellate cases in Ontario.
[21] For the reasons set out below, I find that Shaikh was wrongly decided and should not be followed.
The Amendments
[22] The appellant was charged with the offence of driving a motor vehicle having consumed alcohol such that the concentration in his blood exceeded 80 milligrammes of alcohol in 100 millilitres of blood contrary to s. 253(1)(b) of the Criminal Code.
[23] In 1969, Parliament created an evidentiary mechanism allowing the Crown to tender evidence of breath readings traced back to the time of driving: a statutory presumption contained in s. 258(1)(c) of the Code provided that readings taken by a qualified technician not later than two hours after the offence was alleged to have been committed were proof of the readings at the time of driving (“the presumption of identity”). A second statutory presumption could be found in s. 258(1)(g) and specified that the readings taken at the time of the breath testing were accurate (“the presumption of accuracy”).
[24] In 2018, Parliament introduced Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts (the “Amendment Act”), which repealed the impaired driving offences contained in ss. 249 to 261 of the Code and replaced them with a new set to be found in ss. 320.11 to 320.4 of the Code. In effect, a new impaired driving regime was in existence.
[25] The new regime meant that the Crown no longer needed to demonstrate the actual alcohol content in a driver’s blood at the time of driving. The new focus of the offences was whether a driver had an “80 or Over”[^1] blood-alcohol concentration within two hours of having operated a conveyance. Since the actual reading at the time of driving was no longer material, the presumption of identity was redundant and omitted from the new sections. However, the presumption of accuracy, still required as proof of the readings taken by a technician, was preserved in the new s. 320.31(1) of the Criminal Code.
[26] Recognising that there would be cases which would pre-date 18 December 2018 but come to trial afterwards, s. 32(2) of the Amendment Act stated that the presumption of accuracy continued to apply to any trial that commenced after 18 December 2018 if the “sample or samples to which the trial relates were taken before that day”. However, there was no equivalent transitionary section which referred to the presumption of identity.
The Decision in Shaikh
[27] Shaikh was a transition case: the offence was allegedly committed on 16 February 2018 but the trial did not commence until 23 January 2019, months after the repeal date.
[28] Burstein J. scrutinised the amending legislation and noted that, unlike the presumption of accuracy, Parliament had failed to statutorily preserve the presumption of identity. Although Burstein J. recognised Parliament’s intention to simplify the prosecution of impaired and Over 80 offences, he held that legislative intent could not override the plain meaning of a legislative provision, citing Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, as authority.
[29] Burstein J. reasoned that since s. 14 of the Amendment Act had explicitly repealed sections 249 to 261 of the Criminal Code and s. 52 of the Amendment Act proclaimed that the new sections were to come into force 180 days after royal assent, there was no ambiguity in these words: s. 258 of the Criminal Code, which created the presumption of identity, was no longer law on 18 December 2018.
[30] In making this finding, Burstein J. also observed that his ruling would not prevent the prosecution of “Over 80” offences committed prior to the repeal date as the Crown could call toxicological evidence to confirm the readings obtained by the breath technician.
[31] Burstein J. rejected the Crown’s argument that the court should read in the retention of the presumption of identity to accord with the amending legislation’s objective. He found that Parliament had expressly turned its mind to what exemptions should be created by extending the presumption of accuracy. Burstein J. also concluded that since there was no ambiguity in the phrasing of ss. 14 and 52 of the Amendment Act, the court had no power to declare what the Amendment Act “should have said to best achieve its legislative objective of ‘simplifying’ trials of existing ‘Over 80’ charges”: Shaikh, at para. 27 (emphasis omitted).
[32] As described, the decision in Shaikh has been rejected on numerous occasions in the Ontario Court of Justice. In R. v. Porchetta, 2019 ONCJ 244, 54 C.R. (7th) 211, for example, Rose J. held that the new legislation clearly intended to “simplify the manner of proof” in cases where an accused was driving with excess alcohol. Rose J. also found, in direct contrast to Burstein J., that cases such as R. v. Ali, 1979 174 (SCC), [1980] 1 S.C.R. 221 and R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272, stood for the proposition that any changes to substantive law were prospective and not retrospective. Accordingly, since the repeal of the old Over 80 sections were clearly substantive, the new legislation only applied to offences that were committed after the repeal date of 18 December 2018. Similar viewpoints were expressed in cases such as R. v. Fram, [2019] O.J. No. 2276 (C.J.); R. v. McRae, 2019 ONCJ 310; and R. v. Yip-Chuck, 2019 ONCJ 367, 52 M.V.R. (7th) 315.
Applicable Sections of the Interpretation Act
[33] Sections 12 and 13 of the Interpretation Act, R.S.C., 1985, c. I-21 (the “IA”) state:
12 Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.
13 The preamble of an enactment shall be read as a part of the enactment intended to assist in explaining its purport and object.
[34] Sections 43 and 44 of the IA add the following:
43 Where an enactment is repealed in whole or in part, the repeal does not:
(a) revive any enactment or anything not in force or existing at the time when the repeal takes effect,
(b) affect the previous operation of the enactment so repealed or anything duly done or suffered thereunder,
(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed,
(d) affect any offence committed against or contravention of the provisions of the enactment so repealed, or any punishment, penalty or forfeiture incurred under the enactment so repealed, or
(e) affect any investigation, legal proceeding or remedy in respect of any right, privilege, obligation or liability referred to in paragraph (c) or in respect of any punishment, penalty or forfeiture referred to in paragraph (d),
and an investigation, legal proceeding or remedy as described in paragraph (e) may be instituted, continued or enforced, and the punishment, penalty or forfeiture may be imposed as if the enactment had not been so repealed.
44 Where an enactment, in this section called the “former enactment”, is repealed and another enactment, in this section called the “new enactment”, is substituted therefor,
(c) every proceeding taken under the former enactment shall be taken up and continued under and in conformity with the new enactment in so far as it may be done consistently with the new enactment;
(d) the procedure established by the new enactment shall be followed as far as it can be adapted thereto
(i) in the recovery or enforcement of fines, penalties and forfeitures imposed under the former enactment,
(ii) in the enforcement of rights, existing or accruing under the former enactment, and
(iii) in a proceeding in relation to matters that have happened before the repeal;
(e) when any punishment, penalty or forfeiture is reduced or mitigated by the new enactment, the punishment, penalty or forfeiture if imposed or adjudged after the repeal shall be reduced or mitigated accordingly;
(f) except to the extent that the provisions of the new enactment are not in substance the same as those of the former enactment, the new enactment shall not be held to operate as new law, but shall be construed and have effect as a consolidation and as declaratory of the law as contained in the former enactment;
(h) any reference in an unrepealed enactment to the former enactment shall, with respect to a subsequent transaction, matter or thing, be read and construed as a reference to the provisions of the new enactment relating to the same subject-matter as the former enactment, but where there are no provisions in the new enactment relating to the same subject-matter, the former enactment shall be read as unrepealed in so far as is necessary to maintain or give effect to the unrepealed enactment.
Was Shaikh Correctly Decided?
[35] There is no dispute about the objectives of the Amendment Act amendments. The preamble to the Act clearly stated that “it is important to simplify the law relating to the proof of blood alcohol concentration” and “protect the public from the dangers posed by consuming large quantities of alcohol immediately before driving”.
[36] The question of whether the presumption of identity’s omission from the Amendment Act meant that Parliament intended to abolish the presumption of identity in transitional cases must be determined in light of the principles of statutory interpretation contained in the IA and the Preamble.
[37] In Shaikh, the court acknowledged these principles but reasoned that Bell ExpressVu directed that interpretative aids and legislative intent were only relevant in cases where there was a legislative ambiguity. By following this route, Burstein J. fell into error.
[38] I come to this view for the following reasons.
[39] The Supreme Court of Canada in Bell ExpressVu made clear, at para. 27, in any case where a court engages in statutory interpretation, the intention of the statute provides the basis for determining questions that arise. That intent requires consideration from the outset and must be applied throughout the analysis. It is only if there is an ambiguity in a provision that strict construction of the statutes is to be applied: Bell ExpressVu, at para. 28.
[40] I agree with the Crown that Shaikh proceeded with a “reverse analysis” approach. Instead of beginning with legislative intent and the larger statutory scheme, Burstein J. did the opposite by initially focusing on whether there was an ambiguity in the language of the sections. After finding that there was not, he proceeded to work backwards, deciding legislative intent to be immaterial due to the lack of ambiguity.
[41] This was the wrong approach. As explained in Bell ExpressVu, the Amendment Act had to be considered in its entirety starting with its objectives and the historical context of excess alcohol offences. This statutory principle was not contingent on the existence of an ambiguity in the provisions. The other principles of interpretation in para. 28 of Bell ExpressVu were to be applied only if the intent was not clear with respect to a particular provision: Bell ExpressVu, at para. 62; R. v. Stipo, 2019 ONCA 3, 144 O.R. (3d) 145, at paras. 175-178.
[42] The starting point, therefore, is to determine Parliamentary intent, an issue that is not in dispute: to simplify the prosecution of excess alcohol and impaired driving offences. The entire repeal of s. 258 did not evince an intention to retrospectively repeal the presumption of identity. The amendments created a new evidentiary regime to be applied to Over 80 offences after 18 December 2018. If Parliament had intended to retrospectively repeal all of the sections the appellant could not have been tried for the offences of which he was convicted.
[43] Section 43 of the IA means that repealed offences may be “instituted, continued or enforced” after the repeal date “as if the enactment was not so repealed”. Section 44 complements this direction by stating that where provisions are repealed and replaced, the proceeding shall be adapted where necessary and be treated as a consolidation of the old and the new law to be consistent with the intent of the legislation unless “the provisions of the new enactment are not in substance the same as those of the former enactment”.
[44] It is clear that Parliament intended for offences committed before repeal to be prosecuted after the coming into force of the new regime. Once it is assumed that these offences were still triable after the repeal date, it must also make sense that the corresponding methods of proof such as the presumption of identity also subsisted. It would be illogical to have the old regime of offences continue to be prosecuted without the accompanying presumptions.
[45] Nor does the fact that Parliament expressly provided for a transitionary period for the presumption of accuracy assist the appellant. The transitional provision was necessary because there was a new presumption of accuracy created for the new statutory framework and that presumption differed from the old presumption by providing additional safeguards for an accused. The transitional provision was a means of extending those safeguards and additional benefits to those accused charged before the repeal date.
[46] There was no reason to do the same for the presumption of identity because, as described previously, it was no longer necessary as it only applied to offences committed before the repeal date: McManus, at paras. 82-86.
[47] In other words, ss. 43 and 44 of the IA direct that any part of the old regime not specifically or in substance overruled by the new regime still applies.
[48] Two cases are instructive on the use of ss. 43 and 44 on previous amendments to the presumption of identity, and in my view, settle the issue.
[49] In R. v. Ali, the Supreme Court of Canada ruled upon amendments to the impaired driving provisions which increased the amount of breath samples that the police were entitled to request from a suspect from one to two. The driver had been arrested and charged shortly before the amendments were proclaimed into law but tried afterwards. The court held that the amendment (for two samples) could not operate retrospectively and that the driver was subject to the pre-amendment law. If it was otherwise, the Crown would not be able to rely on the presumption of identity because, as per the pre-existing law, only one sample had been taken from the driver.
[50] In R. v. Copley (1988), 1988 7068 (ON CA), 43 C.C.C. (3d) 396 (Ont. C.A.), the court considered the impact of Parliament’s alteration of the requirement that both breath samples had to be collected within two hours of the alleged offence. Post-amendment only one sample had to be obtained within the two-hour period. The appellant argued that the law prior to the amendments had been repealed and the new law could not apply. The Court of Appeal rejected that argument holding that the pre-amendment law continued to apply to offences committed prior to the change.
[51] Although Shaikh sought to distinguish these cases, I find that they are almost identical to the issues in the case at bar and govern its outcome. As stated by the Court in Ali, at p. 239:
I have no reason to believe that Parliament intended, when passing the Amendment Act to allow for an interval during which the prosecution of offences already committed would be frustrated because the rules contained in ss. 235 and 237 would not be available for the enforcement of s. 236
[52] The comments in Copley, at p. 400, are equally apposite with respect to Parliament’s silence on the transitionary period:
I do not believe that Parliament had any such intention which would create a hiatus for proof of blood alcohol level for a very limited period and for a very limited number of persons charged, i.e., those alleged to have committed an offence prior to December 4, 1985, and who have been tried subsequently. I concede however, as I must, that however unpalatable that conclusion might be it must be reached if the statutory form of the enactment leaves no other choice. In my opinion, s. 207 clearly shows an intention to preserve the evidentiary values of the certificate made in accordance with the former subsection. While there is no clear intention to preserve the presumption, there is certainly no clear intention to abolish it, even for a limited period. The certificates would be much less valuable without the presumption. [Emphasis added.]
[53] In the absence of a “clear intention”, the court fell back on the application of what are now ss. 43 and 44 of the IA as well as the principles set out in Ali. It concluded that the pre-amendment law applied.
[54] By passing the amendments contained in the Amendment Act, Parliament could not have intended to “simplify” procedure by making it more difficult for the Crown to prove 80 or Over cases: Porchetta, at para. 30; Yip-Chuck, at para. 8; McManus, at para. 99.
[55] As in Copley, in the absence of a clear intent to abolish the presumption of identity in the amendments, the presumption must be held to operate in cases where the allegation pre-dates the amendments.
[56] Before leaving the topic, I make a final comment on the court’s reasons in Shaikh regarding the lack of difficulty faced by the Crown if it could no longer rely on the presumption of identity. There, the court held there was little prejudice as the Crown could simply call toxicological evidence to establish the breath reading at the time of driving. On this point, I concur with Latimer J.’s comments in R. v. McAlorum, 2019 ONCJ 259, 49 M.V.R. (7th) 292, at para. 17:
While I acknowledge the theoretical availability of a section 657.3 affidavit, experience teaches that live witnesses – often scientists from the Centre of Forensic Sciences – are almost always required to attend in person, either to testify, consult, or explain their report. Ontario is a big province, and ‘Over 80’ cases occur daily in every region, city and town. It is not in the public interest to adopt an approach that requires scientists to attend court on a daily basis, nor is it consistent with the principles of fairness and efficiency that have animated the last sixty years of drinking and driving legislation.
[57] Latimer J.’s comments mirror the Supreme Court of Canada’s ruling in R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967, where the interpretation of the presumptions of identity and accuracy were contested in the context of the pre-conditions required for operation. Once again, Parliament’s intention to simplify proceedings played a central role in deciding whether a “lawful demand” for a breath sample was required to permit the Crown to rely on the presumptions.
[58] At para. 12, Moldaver J., writing for the majority of the court, declared that if the court found a lawful demand was a necessary precursor to reliance on the presumptions, the Crown would be forced to call the breath technician and toxicologist in every case where the issue was raised. At para. 12, he wrote:
The singular effect of concluding otherwise [a lawful demand was needed] would be to require two additional witnesses to attend court to give evidence on matters which have no connection to the lawfulness of the breath demand – and only serve to add to the costs and delays in an already overburdened criminal justice system. No one gains under this approach – but society as a whole loses out as precious court time and resources are squandered. The evidentiary shortcuts were designed by Parliament to simplify and streamline drinking and driving proceedings. A lawful demand requirement does not further Parliament’s intent; rather, it serves to frustrate it.
[59] He added, at para. 45:
In some cases, practical or resourcing limitations may prevent the Crown from being able to produce these two witnesses – and this could result in the case being lost. In my view, we should avoid an interpretation that forces the Crown to call unnecessary witnesses and promotes an outcome not based on the merits, but rather on the limitations of an overburdened criminal justice system. Indeed, such an approach would be antithetical to this Court’s recent jurisprudence emphasizing the importance of participants in the criminal justice system working together to achieve fair and timely justice: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at paras. 2-3 and 19-28
[60] From the foregoing reasons, it follows that I find that Shaikh was wrongly decided and should not be followed.
[61] This ground of appeal is dismissed.
III. WAS THE APPELLANT’S RIGHT TO COUNSEL VIOLATED BY THE POLICE?
1. OVERVIEW
Factual Background
[62] In determining this ground of appeal, it is worth recounting the facts relating to the appellant’s arrival at the station and the interaction with the police.
[63] When arrested, PC Stone informed the appellant of his right to counsel in the following words:
It is my duty to inform you that you have the right to retain and instruct counsel without delay. You the right to telephone any lawyer you wish. You also 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. 1-800-265-0451 is the number that will put you in contact with the legal aid duty counsel lawyer for free legal advice right now. Do you understand?
[64] When the appellant was first read his s. 10(b) right, he responded by saying that he did not want to speak to counsel “right now but I would like to later”. PC Stone testified that en route to the station he asked the appellant whether he had a specific lawyer. The appellant replied that he did not have his own lawyer but did wish to speak to one. PC Stone indicated that the reason for the inquiry was to ensure the appellant could properly exercise his rights. The appellant also told PC Stone that he would like to speak to duty counsel.
[65] The police arrived at the station at approximately 5:10 AM and at 5:20 AM the officer left a message with duty counsel. At 5:43 AM duty counsel returned the call and spoke to the appellant for approximately three minutes. PC Stone asked the appellant if he was satisfied with the conversation and the appellant replied that he was.
[66] Shortly afterwards, the appellant provided two breath samples, the first of which was calculated as 111 milligrammes of alcohol in 100 millilitres of blood and the second as 110 milligrammes of alcohol in 100 millilitres of blood.
[67] The appellant agreed that he had been read his right to counsel. However, he understood the caution to be an inquiry about whether he had a lawyer. He agreed that he told the police that he had no lawyer of his own but further testified that when he had done so, they had responded by informing him that they would provide him with duty counsel. The appellant also agreed that he told the police that he understood the right to counsel but said he thought it meant that he had only two options: call his own lawyer or seek the services of duty counsel. He agreed that he had never asked for a phone book but claimed that he did not know that he was allowed to do so.
[68] He further testified that he believed there was no other option but to speak with duty counsel. He indicated that he had not been advised of or given any materials that would have allowed him to search for a lawyer. The appellant said that had the police given him a phone book or lawyers list, he would have used them to decide if he could find a lawyer.
[69] The appellant confirmed telling PC Stone that he was “satisfied” with his conversation with duty counsel. He did not raise any further concerns because he wanted to be compliant and did not know that he could make any further queries. In cross-examination, he could not explain why a further request would make him seem non-compliant. The appellant also agreed that the person he was speaking to was “counsel” but he also claimed that he did not know that the duty counsel was a lawyer.
The Trial Judge’s Reasons
[70] In dismissing the appellant’s Charter application, the trial judge rejected the argument that the police had an obligation to inform the appellant that he had a right to contact a third party or provide materials that would permit him to search for one.
[71] He found that the appellant made no request for a specific lawyer and responded affirmatively when asked if he wanted to call duty counsel. The judge relied on R. v. Ruscica, 2019 ONSC 2442, 50 M.V.R. (7th) 121, to hold that when a detainee indicates they have no specific lawyer and accepts the services of duty counsel the police have no obligation to locate third-party counsel unless the detainee specifically requests them to do so.
[72] In this case, the trial judge found the appellant made no such request and rejected the appellant’s evidence that he did not properly understand the right to counsel. The judge held that it was incumbent upon the appellant to convey his desire to contact or search for private counsel, something that he failed to do.
[73] The trial judge also found the appellant to be untruthful when he said that he did not realise that duty counsel was a lawyer.
[74] Accordingly, he dismissed the application.
The Positions
[75] The appellant argues that the police failed to properly fulfil their informational and implementational duties in ensuring that he had a meaningful right to counsel.
[76] Relying heavily on R. v. Doobay, 2019 ONSC 7272, as well as other like-minded decisions from the Ontario Court of Justice, the appellant submits that there is an expanded duty upon the police when dealing with a detainee who either has no counsel or whose counsel has not responded to calls made by the police.
[77] The appellant argues that PC Stone’s right to counsel caution left him with the impression that he had only two choices: his own lawyer or “free” duty counsel. The appellant argues that the reference to “free” advice effectively steered him towards using duty counsel rather than giving him the opportunity to search for another lawyer. This was a failure of the informational aspect of the right to counsel.
[78] Moreover, the appellant claims that the police also fell short in their implementational duties by failing to provide materials and assist him in searching for a private counsel as well as giving him the option of duty counsel.
[79] The appellant argues that these implementational duties exist even when a detainee has not requested the opportunity to find private counsel.
[80] In response, the Crown submits that this ground should be dismissed on the basis of established and binding jurisprudence. The Crown argues that not only does Doobay have no applicability to the facts at hand, but also that it was wrongly decided and should not be followed.
The Arguments
[81] The appellant’s arguments can be grouped into three segments:
The police have an expanded s. 10(b) duty which, in cases where they take on the task of calling counsel, means that they must act as the detainee would have done.
The s. 10(b) informational component requires that from the outset the police must provide a detainee who indicates that he has no lawyer with a phone book or internet access to search for counsel.
The s. 10(b) right as explained by the police “channelled” or “steered” the appellant toward duty counsel rather than giving him the meaningful option of choosing his own lawyer.
[82] I deal with each in turn.
2. DO THE POLICE HAVE AN EXPANDED DUTY WHEN THEY CONTACT COUNSEL?
[83] The appellant argues that in this case the police should have done more to ensure that his right to counsel was properly implemented by taking greater steps to assist him in locating private counsel.
[84] This argument is based on a series of cases which first arose at the Ontario Court of Justice: R. v. Panigas, 2014 ONCJ 797, 305 C.R.R. (2d) 18, at para. 52; R. v. Maciel, 2016 ONCJ 563, 32 C.R. (7th) 174, at para. 43; R. v. Ali, 2018 ONCJ 203, at para. 59; R. v. Middleton, 2018 ONCJ 387, 411 C.R.R. (2d) 223, at para. 61.
[85] These cases impose an expanded level of obligation on the part of the police to facilitate access to counsel also referred to in some cases as a “minimum standard”.
[86] This expanded obligation appears to impose a standard of scrutiny which would be determined by asking what a reasonable detainee would have done to contact counsel if the police had asked them to do so: see Ali, at para. 59; Maciel, at para. 43; Panigas, at para. 52.
[87] In R. v. O’Shea, 2019 ONSC 1514, 372 C.C.C. (3d) 352, Schreck J. sitting as a Summary Conviction Appeal court, approved the reasons of the courts in Maciel and Panigas stating that once the police decided to take control of the detainee’s means of accessing counsel by making the call on their behalf, they assumed the obligation to pursue the right to counsel “as diligently as she would have”. Later on in his reasons, however, Schreck J. qualified those comments by stating that he did not mean “that the police are obliged to take every step an accused would take at the exact times that she would take them”, but that “[t]he standard . . . is whether the police took all steps that were reasonable in the circumstances”: at para. 22.
[88] In Doobay, at para. 30, Dawe J. approved the comments in Panigas suggesting that when the police took responsibility for contacting counsel their actions must be subject to the level of how a detainee would act. At para. 30, he wrote: “[i]f 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.”
[89] With great respect, and for the following reasons, I cannot agree with the expanded level of obligation described in these cases.
[90] First, it is hard to understand how this would work in practice. How are the police to know what a “reasonable” detainee would have done? How can the court assess what a particular detainee would have done to compare the police action and decide whether it was exercised as “diligently” as the detainee would have performed it? What is the standard of the reasonable detainee?
[91] For example, in Maciel, the judge found that even after leaving messages for the accused’s counsel at home and work, the police had failed its constitutional obligations because they had not checked counsel’s website to find out if an alternative after-hours number existed. The judge found that had they done so and clicked on a particular web link they would have obtained counsel’s cell number and email address.
[92] Applying the test prescribed in cases such as Doobay or Panigas one might ask: what would the reasonable detainee do if they had called counsel’s work and home number without answer? Would they continue to counsel’s website? Or would they assume that if counsel had an after-hours number it would have been left on his business line as an alternative number at which to contact them? In my view, it is equally if not more likely to assume that a reasonable detainee would do the latter and decide that counsel do not wish to be disturbed after hours: R. v. Shariq, 2018 ONCJ 340, at para. 13.
[93] On this point, I agree with the comments of Duncan J. in R. v. Solomon, 2018 ONCJ 891, 35 M.V.R. (7th) 341, at para. 15, that Maciel should be read as providing helpful suggestions rather than mandatory procedure.
[94] Second, I find nothing in the language of binding appellate authority that suggests that the police are to act as if they were in the same position as the detainee. The Supreme Court of Canada has framed the duty as requiring the police “to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioning the detainee until that reasonable opportunity is provided”: R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 33; R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, at p. 192; R. v. Richfield (2003), 2003 52164 (ON CA), 178 C.C.C. (3d) 23 (Ont. C.A.), at para. 6.
[95] I agree with Ricchetti J. in R. v. Wijesuriya, 2020 ONSC 253, at para. 73, that when evaluating police conduct in a s. 10(b) context “the focus should be whether the police took reasonable steps in the circumstances to facilitate a reasonable opportunity for the detainee the right to speak with their counsel of choice”. As pointed out, at para. 59:
The Supreme Court has not established one standard of police conduct if the detainee is given direct access to a phone (including the detainee’s phone) and/or computer to use as they see fit and a different standard if the police take steps to facilitate the detainee’s Charter right when the police choose to locate/dial the lawyer’s telephone number on a police telephone. What constitutes reasonable steps by the police in the two situations will no doubt differ, but the standard remains that the police must take reasonable steps to provide the detainee a reasonable opportunity to speak with counsel of choice.
[96] Third, the weight of appellate authority on this issue does not seem to suggest that the police have expanded duties as argued by the appellant and set out in the above cases.
[97] In R. v. Littleford (2001), 2001 8559 (ON CA), 147 O.A.C. 123 (C.A.), the police left a message on counsel’s office voicemail and subsequently called duty counsel. The Court of Appeal held that there was no breach of the appellant’s s. 10(b) rights. There was no mention of the police being obliged to take further steps. In Willier, the police facilitated a conversation with duty counsel and offered a second opportunity for the accused to speak to his own lawyer. When the accused was unable to reach his counsel, the police informed him that the lawyer was unlikely to call back until the next day and reminded him of the duty counsel option. The accused spoke to them a second time. The Supreme Court of Canada held that there was no breach of s. 10(b).
[98] It is also noteworthy that the “minimum standard” argument has been rejected at the Summary Conviction Appeal level in various cases: see R. v. Blackett (2006), 36 M.V.R. (5th) 223 (Ont. S.C.), at paras. 19-24; R. v. Casselman, 2005 3399 (ON SC), [2005] O.J. No. 548 (S.C.), at para. 16; R. v. Jurewicz (2001), 13 M.V.R. (4th) 275 (Ont. S.C.), at para. 23.
[99] There is no suggestion that the police are obliged to take every single step that is possible to seek out counsel. What is imperative is that the police make reasonable efforts to contact counsel of choice and, if that is not possible, ensure that the detainee knows that the option of duty counsel is available. Although, as we shall see, it is somewhat ironic that the appellant complains that informing him of this option led to the violation of his s. 10(b) rights.
[100] Fourth, as noted by Ricchetti J. in Wijesuriya, at paras. 66-7, imposing this type of standard leads to a speculative hindsight approach which puts a trial court in the position of asking what the police might have done rather than assess what they did do. Ricchetti J. considered and rejected the reasoning in Doobay and Maciel on this point.
[101] Finally, in R. v. Canavan, 2019 ONCA 567, 46 M.V.R. (7th) 181, the appellant was convicted of impaired operation of a motor vehicle causing death and other related charges after being involved in a motor collision and taken to hospital. The police called the appellant’s lawyer and left a message on his voicemail. The voicemail greeting provided a cell number to which a text message could be sent. The police accordingly texted the number but received no reply, after which they informed the appellant of the services of duty counsel. The appellant insisted that he wished to speak to his own lawyer. There was no phone book or internet access provided to look for another lawyer. The trial judge held there was no breach of the appellant’s s. 10(b) rights and the Court of Appeal affirmed this conclusion. Under Maciel and Doobay, the police would have been expected to, at a “minimum” look for an after-hours number or provide a phone book to permit the appellant to find another lawyer, something that the court in Canavan held was not necessary.
[102] In this case, of course, the appellant told the police he had no lawyer.
[103] The appellant argues that because of those cases expanding the role of the police, the police should have told him that he had the right to search for a private lawyer and provided him with a phone book or internet access to facilitate a search. This was identified in Doobay as being a significant factor in the s. 10(b) analysis.
[104] I turn to these arguments next.
3. MUST THE POLICE PROVIDE SEARCH TOOLS AND MATERIALS?
[105] As I have noted, the appellant argues that along with the expanded role in locating counsel, the police had additional commitments: when the appellant told them he did not have a lawyer, the police were obliged to (1) inform him that he had the right to search for a private lawyer and (2) provide him with the means of doing so by providing legal directories and internet access.
[106] He submits that in this case the police hold these responsibilities even if a detainee makes no such request. Again, he relies on cases such as R. v. Manuel, 2018 ONCJ 381, 48 C.R. (7th) 49, at para. 38; R. v. Sakharevych, 2017 ONCJ 669, 18 M.V.R. (7th) 316, at para. 71; Middleton, at para. 61. In his factum, the appellant also cites reliance on Doobay “for all applicable points of objective analysis relating to the assessment of the evidence set forth in that decision”.
[107] I start from the view there is no dispute that if a detainee has a lawyer and requests a phone book to locate the number, they must be provided with a means of finding the number. Alternatively, the police themselves must make best efforts to do so. This duty falls within the reasonable opportunity principle described above.
[108] I also agree that if a detainee does not have a lawyer but requests the opportunity to find one, they should be given the chance and means to do so either through a phone directory or internet access.
[109] The question posed by this appeal is whether the police are obliged to provide a phone book or internet access to a detainee who does not have a private lawyer and makes no request to search for one.
[110] From a practical viewpoint, it is difficult to understand how providing a phone book or internet access will actually assist a detainee in finding a suitable lawyer that, at that moment, is unknown to him. How is the detainee to know which lawyer to choose? How is the detainee to know whether a particular lawyer deals with or specialises in the offence with which they have been charged? Are the police to provide information on particular lawyers? One might assume that if they did, they would be subject to the same accusation made in this case: that they “channelled” the detainee to a particular counsel.
[111] Secondly, the authorities suggest there is no obligation on the police to provide phone books in the absence of a request. In Canavan, the appellant was convicted of impaired operation of a motor vehicle causing death and other related charges after being involved in a motor collision and taken to hospital. After the police made unsuccessful attempts to contact his lawyer, they offered to call duty counsel but were told by the appellant that he wanted to speak only to his lawyer. On appeal, the appellant argued that the police breached his right to counsel by failing to provide a phone book to search for a new lawyer. The trial judge held that there was no violation of the right to counsel. The Court of Appeal upheld that ruling.
[112] Nor can the context of this argument ignore another vital component of the s. 10(b) analysis: the requirement of reasonable diligence on the part of a detainee to assert their rights. This principle is well entrenched in the jurisprudence: R. v. Tremblay, 1987 28 (SCC), [1987] 2 S.C.R. 435; R. v. Brydges, 1990 123 (SCC), [1990] 1 S.C.R. 190; Richfield, at paras. 7-12; Willier, at para. 33; R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, at para. 18.
[113] This rule places an imposition on the detainee who wishes to search for a lawyer to make that request: R. v. Zoghaib, [2005] O.J. No. 5947 (S.C.), aff’d [2006] O.J. No. 1023 (C.A.); Solomon, at para. 23. In coming to this conclusion, I disagree with the comments made by Dawe J. in Doobay, at paras. 51-53, that a failure to tell a detainee that they may have a phone book to search for a lawyer is a factor in deciding whether they have exercised reasonable diligence. This would make no sense if the detainee had never made a request to look for a lawyer in the first place.
[114] In R. v. Van Binnendyk, 2007 ONCA 537, 49 M.V.R. (5th) 178, a case factually very similar to Doobay, the police unsuccessfully attempted to contact the accused’s lawyer and offered to call a new lawyer but were met with refusals by the accused who insisted on only talking to his lawyer. The Court of Appeal held, at para. 13, that the appellant had “not prove[n] that he acted with reasonable diligence or that his s. 10(b) Charter rights had been violated”.
[115] I also find support for this view in Zoghaib, where the defence argued that it behove the police to ask the accused whether she wanted a phone book prior to calling duty counsel: their failure to do so violated the accused’s right to counsel. The trial judge agreed and after excluding the breath readings entered an acquittal. The Crown appealed and Fragomeni J., sitting as a Summary Conviction Appeal court reversed, holding that there was no duty to provide a phone book in the absence of a request to speak to private counsel. As the accused had not exercised her right to counsel diligently, there could be no breach. The Court of Appeal upheld Fragomeni J. in a short endorsement expressed in the following paragraph:
We are in substantial agreement with the analysis of the Summary Conviction Appeal Court. The appellant was fully advised of her right to counsel at the roadside and understood those rights. On the finding of fact made by the trial judge, any subsequent misapprehension by the appellant of her right to contact her own lawyer as opposed to duty counsel was a product of her own thought processes, none of which were conveyed to or known by the officer. The Summary Conviction Appeal Court correctly held that as a matter of law the appellant’s unexpressed desire to speak to her own lawyer could not result in a breach of s. 10(b) of the Charter. [Emphasis added.]
[116] See also Richfield, at para. 12; Shariq, at para. 17.
[117] For these reasons, I find that there is no obligation on the police to provide a phone book, internet access or other search materials in the absence of a request from the detainee.
4. DID THE POLICE STEER THE APPELLANT TOWARD DUTY COUNSEL?
[118] The appellant further argues that by providing the right to counsel information in the manner that he did, PC Stone “steered” him toward using the services of duty counsel rather than meaningfully facilitating his right to choose private counsel instead.
[119] The appellant again relies upon cases such as Manuel and Sakharevych which have found a violation based on this type of police conduct when a detainee indicates that they have no lawyer. In Sakharevych, the police read the right to counsel in terms almost identical to that in the instant case, telling the accused that he had the right to choose “any lawyer you wish” and also the right to “free legal advice from a Legal Aid lawyer”. The trial judge made the following comments at paras. 69-70:
In Mr. Sakharevych’s case, Cst. Schnarr was dealing with a 19 year old first offender. This first offender asserted a desire to speak to counsel. In doing so, he plainly communicated that he did not know of any lawyers. In those circumstances, a reasonable person would conclude that this young person lacks the information necessary to choose a lawyer. In short, in asserting his right Mr. Sakharevych also asserted an informational deficit.
Any reasonable member of the public and the legal community would consider it entirely inappropriate for a police officer to steer each arrestee to a particular member of the defence bar. A police officer who carried a stack of cards from a single lawyer’s office and handed them out at each arrest, would no doubt face a stinging rebuke from this court. What is improper about this conduct? The answer is clear: the officer is steering all arrestees to a single counsel. In doing so, the officer is subverting the freedom to make informed decisions by restricting the information available to the accused. The subversion is exacerbated if the detainees are not told of the right to search for any other counsel; further exacerbated if the accused is not provided any other means by which to search for a different counsel; and further exacerbated if the officer completely controls the actual physical process of contacting counsel on the phone. Now, I ask, how is this behaviour made acceptable when the only counsel specifically named or provided by the officer is duty counsel? In my view, it is not. Constable Schnarr may not have handed out a lawyer’s business card, but he effectively read from one when he read from the standard right to counsel warning in his notebook. [Emphasis omitted.]
[120] With great respect, I cannot see how the right to counsel caution could be described in such terms.
[121] In law, the police are bound to inform a detainee that they have the right to be advised of “free” legal advice from duty counsel: R. v. Bartle, at p. 201.
[122] In Richfield, at para. 8, the court made clear that when considering the question of a detainee’s diligence in exercising his s. 10(b) right, the availability of duty counsel was “crucial”.
[123] The incorporation of this right alongside the right to call a lawyer was summarised in R. v. Devries, 2009 ONCA 477, 244 C.C.C. (3d) 354, at paras. 22 and 28:
The informational component of s. 10(b) has two parts. The first is apparent in the language of the section, while the second is a product of the jurisprudence. Section 10(b) expressly requires that the detainee be told of his or her right to retain and instruct counsel without delay. In R. v. Brydges, 1990 123 (SCC), [1990] 1 S.C.R. 190, at p. 206, the Supreme Court of Canada extended the informational component of s. 10(b) to include the requirement that the detainee must be informed of the existence and availability of duty counsel and Legal Aid. In Bartle at p. 198, the court explained that Brydges must be read as requiring the authorities to inform detainees about the availability of counsel through Legal Aid, and the availability of immediate free legal advice to everyone through duty counsel services assuming those services exist in the jurisdiction. In reference to the right to access immediate free legal advice, Lamer C.J.C. said at p. 198:
I would add here that basic information about how to access available services which provide free, preliminary legal advice should be included in the standard s. 10(b) caution. This need consist of no more than telling a detainee in plain language that he or she will be provided with a phone number should he or she wish to contact a lawyer right away.
Bartle identifies two key components of the informational requirement embedded in s. 10(b). First, the detainee must be told of the immediacy of the availability of legal assistance and second, the detainee must be told of the means by which he or she can access that legal advice. Bartle holds that had the officer told the detainee that he could contact counsel from the police station, that information, combined with further information about the availability of immediate legal advice, would have been sufficient to convey to the detainee that he had a right to speak with a lawyer “without delay”.
[124] I agree this is not meant to be an exhaustive list. However, one would imagine that if the unrepresented detainee’s right to search for a new lawyer was a constitutional right it is hard to see why the court did not even mention it. Like my colleague, McKelvey J. in R. v. Ruscica, at para. 42, I take this to be further support for the fact that there is no such obligation.
[125] It is somewhat ironic that the appellant in this case, as well those in Manuel and Sakharevych, now complain of “steering” toward free legal advice because the police have complied with the legal obligations originally sought by the defence and mandated as constitutionally necessary in Bartle.
[126] Dawe J. in Doobay, at paras. 55-56, sought to distinguish Devries and Bartle as cases that were confined to their particular facts and arguments. I cannot agree. There is nothing in the judgments that speak to these comments as being applicable only to the factual matrices of those cases. Bartle, Brydges and Devries lay down fundamental instructions to be followed in every case. That is not to say that a detainee without a specific counsel has no right to request the opportunity to look for one: Richfield, at para. 12. However, the detainee must make that request.
[127] I find, therefore, that cases such as Manuel and Sakharevych were wrongly decided and I decline to follow them.
[128] It is clear from the plain meaning of the right to counsel that a detainee may contact any lawyer that they wish or choose. They are also given information that they “also” have the right to obtain free legal advice from a Legal Aid lawyer if they choose to do so. I find nothing ambiguous about the information. I fail to see how telling a detainee that they have the right to contact any counsel they choose or obtain free legal advice from a state-provided lawyer steers them toward the latter.
[129] Secondly, as I have already noted, cases such as Manuel and Sakharevych run contrary to established case law. This was acknowledged by the judge in Manuel who sought to distinguish Zoghaib, a binding appellate decision, on the basis that there the accused was “informed” of the availability of a phone book and phone because she was seated in an interview room in which they were present. With respect, I see nothing in Zoghaib that determines the case on this basis. On the contrary, at the Summary Conviction Appeal hearing, the defence argued that a phone book should have been given to the accused and the failure to do so constituted a Charter breach.
[130] Other recent cases have followed the Zoghaib rather than the Doobay route.
[131] In R. v. Ordonio, 2019 ONSC 1804, Baltman J. also rejected the “steering” argument where the accused told police en route to the station that he did not have a lawyer but “would like to get one”. When offered duty counsel, the accused accepted. At the station, the police confirmed that the accused wanted to call duty counsel and he agreed. The police followed up by enquiring if the accused had a specific lawyer to contact. The accused replied that he did not. Following Zoghaib, the judge found that there had been no violation of the accused’s s. 10(b) rights.
[132] In R. v. Raaneyi, 2018 ONCJ 154, at para. 21, Kenkel J. held that once the police cautioned the accused regarding his right to counsel, the police were not “required to add further scenarios to the standard advice. What happens next after the standard advice is given depends upon the detainee’s response”. See also: R. v. Reyes, 2018 ONCJ 561, 39 M.V.R. (7th) 146, at paras. 36-7; R. v. So, 2019 ONCJ 44, at para. 37.
[133] In Devries, Doherty J.A. emphasised the dual nature of the informational component of the s. 10(b) right: telling the detainee of the right to counsel and also the availability of duty counsel. In Manuel, the judge cited para. 23 of the Devries judgment, which observed that the right to counsel “would be hollow for those unaware of how they might obtain immediate legal assistance if they were given no information by the authorities as to how to access legal assistance”, as apparent justification for finding that the police should have provided informational tools to search for a lawyer to a detainee who had no counsel.
[134] In fact, this sentence must be read in conjunction with the words that precede it:
The requirement that all detainees must be told of the existence and means of accessing duty counsel and Legal Aid gives the constitutional right to counsel found in s. 10(b) real meaning. The right would be hollow for those unaware of how they might obtain immediate legal assistance if they were given no information by the authorities as to how to access legal assistance.
[135] In other words, Doherty J.A.’s comments were about the importance of telling detainees of how they could access free legal advice and how that must be included in the s. 10(b) caution so that detainees knew of its existence rather than an independent search.
[136] In McCrimmon, the Supreme Court of Canada dealt with a situation similar to Doobay where the appellant expressed his wish to speak to his own lawyer but was unable to do so. At para. 19, the court observed:
In this case, we agree with the courts below in rejecting Mr. McCrimmon’s contention that he was denied the right to counsel of choice in a manner that contravened his rights under s. 10(b). While Mr. McCrimmon expressed a preference for speaking with Mr. Cheevers, the police rightly inquired whether he wanted to contact Legal Aid instead when Mr. Cheevers was not immediately available. Mr. McCrimmon agreed, exercised his right to counsel before the interview began, and expressed satisfaction with the consultation. He also indicated an awareness of his rights at the commencement of the interview. In these circumstances, there was no further obligation on the police to hold off the interrogation until such time as Mr. Cheevers became available. [Emphasis added.]
[137] The court itself indicated that when counsel of choice was unavailable, the police “rightly” followed up by asking whether the accused wished to speak to duty counsel. There was no suggestion by the court that this was somehow “steering” or “channelling” the accused toward duty counsel. Nor was there any reference to an obligation to provide a means of finding a third-party lawyer before going to duty counsel.
[138] Finally, in Willier, the Supreme Court of Canada dealt more directly with the steering argument. The accused had attempted to contact his chosen counsel and elected to wait for him to return the call. The officer advised the accused that it was unlikely that his lawyer would call back before his office reopened the next day and reminded him of the option of speaking to duty counsel if he so wished. On this point, at para. 43, the court remarked:
Considering the circumstances of this case as a whole, the majority of the Court of Appeal correctly found that Mr. Willier did not suffer a violation of his s. 10(b) right to counsel. In no way did the police interfere with Mr. Willier’s right to a reasonable opportunity to consult with counsel of choice by simply reminding him of the immediate availability of free Legal Aid after his unsuccessful attempt to call Mr. Royal.
The police had an informational duty to ensure that Mr. Willier was aware of the availability of Legal Aid, and compliance with that duty did not interfere with his right to a reasonable opportunity to contact counsel of choice. Mr. Willier was properly presented with another route by which to obtain legal advice, an option he voluntarily chose to exercise.
[139] For these reasons, I find there was no obligation to insert additional advice into the caution given in this case or that the appellant was in any way steered toward duty counsel.
5. APPLICATION TO THE CASE AT BAR
[140] For these reasons, I find that the appellant’s arguments that the police violated his rights due to their failure to carry out “minimum” duties and provide him with material to search for counsel when he never asked them to are without merit. Moreover, I reject the notion that the appellant was in any way “steered” toward duty counsel.
[141] As the trial judge in this case acknowledged, the decisive authority on this matter was Ruscica, a case with almost identical facts to the case at bar. There, the court rejected the argument advanced in this appeal. The accused was stopped for impaired driving and given rights to counsel in the same fashion as the appellant. When asked if he had a lawyer, he replied that he did not. He indicated, however, that he wished to speak with duty counsel and did so before providing breath samples. Upon appeal from conviction, the offender argued that he had been steered to duty counsel because the police had not provided him the opportunity to contact private counsel.
[142] After considering the Ali and Middleton line of cases, the court held that there was no breach of the right to counsel. The court specifically rejected Manuel in its ruling that the police were obliged to provide additional information concerning search resources for counsel. McKelvey J. also made the following comments, at para. 43, with which I agree:
I have considered whether there could be an implementational duty to assist a detainee to identify and locate private counsel once they have advised police that they wish to speak to a lawyer. However, in my view, such an obligation must be based on a request from the detainee which reasonably requires the police to assist in this regard.
[143] Here, the appellant was told by the police that he had the right to “call any lawyer you wish” as well as duty counsel. The police therefore complied with their obligations under Devries. When asked if he understood the caution, the appellant told the police that he did. In the voir dire, the appellant confirmed that he given such a confirmation to the police. When asked if he wanted to speak to duty counsel, he replied in the affirmative. He made no request to speak to a private counsel at any time. The trial judge found the appellant to be untruthful in his assertions that he did not understand that duty counsel was not a lawyer.
[144] There is no lacuna in the law, as the appellant argues, that even when a detainee has made no request to contact a private lawyer and is willing to talk to duty counsel that the police must inform a detainee of the right to a private lawyer and provide resources to locate one. It is part of the due diligence requirement that the detainee notify the police of his desire to do so before they embark on such a course of action: R. v. Tremblay, at p. 438; R. v. Mumtaz, 2019 ONSC 468, 47 M.V.R. (7th) 125, at para. 49; R. v. R., 2019 ONSC 4414, at para. 79; R. v. Cheema, 2018 ONSC 229, 22 M.V.R. (7th) 130, at para. 31.
[145] Here, the appellant made no such request and told the police he was satisfied with the advice given by duty counsel. He cannot now complain about the fact that he was not given the option of speaking to or searching for private counsel when he never made the request or ever expressed dissatisfaction with the advice that he received: Willier, at para. 42. Once the appellant indicated that he was agreeable to speaking with duty counsel there was no requirement for the police to delay that conversation or countermand the appellant’s wishes: R. v. Shoker, 2016 ONSC 5478, at para. 70.
[146] The judge found, on his review of the evidence, that at no time did the appellant ever communicate a desire to contact a particular lawyer or search for one to the police. The police could hardly be held to have failed in their s. 10(b) obligation in such circumstances. As the judge pointed out: “they are not mind readers”.
[147] For the foregoing reasons, the appeal is dismissed.
S.A.Q. Akhtar J.
Released: 8 June 2020
COURT FILE NO.: CR-19-30000083-00AP
DATE: 20200608
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SURESH PERSAUD
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.
[^1]: Bill C-46 made a minor change to the threshold level of blood alcohol concentration, criminalizing conveyance operators who have a blood alcohol concentration that is “equal to or exceeds 80 mg of alcohol in 100 mL of blood” as opposed to a blood alcohol concentration that merely “exceeds eighty milligrams of alcohol in one hundred millilitres of blood” (emphasis added).