COURT FILE NO.: CR-20-10000039-00AP
DATE: 20210305
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
VANESSA LUIS
D. Guttman, for the Crown
R. Singh Bal, for Ms. Luis
HEARD: 22 February 2021
s.a.Q. akhtar j.
On appeal from the conviction entered on 6 February 2020 by Justice Mara Greene of the Ontario Court of Justice.
OVERVIEW
Factual Background
[1] The appellant was convicted of driving with a blood alcohol concentration of over 80 milligrams of alcohol in 100 millilitres of blood.
[2] On 17 February 2019, at approximately 12:45 a.m., police observed the appellant speeding whilst driving on Lakeshore Boulevard West in Toronto. She was stopped and provided a screening breath sample which registered a "fail". As a result, the appellant was arrested before being taken to a nearby R.I.D.E. spot check truck to provide breath samples.
[3] The arresting officer read the appellant her rights to counsel and placed the appellant in a private booth to communicate with duty counsel. A white noise machine was activated inside the booth upon entry to ensure the appellant had privacy, by preventing any conversation being overheard outside the booth. However, exterior traffic noise could still be heard inside the booth.
[4] The appellant spoke with duty counsel for several minutes before providing breath samples. Between the two samples, the appellant informed the officer that the audio conditions inside the booth were far from perfect. The breath samples provided readings of 159 and 168 milligrams of alcohol in 100 millilitres of blood.
[5] At trial, the appellant brought a Charter application alleging that her s. 10(b) rights had been infringed because she had been unable to meaningfully communicate with counsel.
[6] The trial judge dismissed the application.
[7] The judge found that although the appellant had been very upset by her arrest, the detaining officer made best efforts to calm her. The judge also held that the officer properly explained the appellant's right to counsel using easily understood language. A video capturing the interaction showed the appellant understood those rights.
[8] The judge also found that although the appellant had complained of the noise in the privacy booth, the officer responded appropriately and asked the appellant if "she was okay with advice", and the appellant replied in the affirmative. When testifying, the appellant explained that she had lied to the officer because she wished to leave the R.I.D.E. truck and thought that if she pressed her complaints, she would be delayed.
[9] The judge found that if the appellant's evidence was true, she had failed to pursue her Charter rights diligently as required by cases such as R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429. The judge concluded that the appellant had no desire for further advice and simply wished to leave. The judge also found that if the appellant was having a panic attack, as she testified to, no one observing her would have known. Accordingly, the officers would have had no reason to go further in explaining or implementing her right to counsel.
Grounds of Appeal
[10] The appellant advances two grounds of appeal.
[11] First, she argues that in dismissing her Charter application, the trial judge misapplied the test by focusing on the quality of legal advice given rather than the ability to communicate effectively with duty counsel.
[12] Secondly, she claims that the trial judge misapprehended her position regarding the s. 10(b) argument and erroneously used irrelevant factors in deciding the Charter issue.
ANALYSIS
Were the Police Obliged to Re-advise of the Right to Counsel?
[13] In the absence of "special circumstances", and where there is nothing to suggest an issue with comprehension, the officer is entitled to infer that the individual understands the rights being read to her. The concept of "special circumstances" usually arises where there is evidence that an accused's language difficulties raised a barrier to comprehending the right to counsel caution: see for example: R. v. Vanstaceghem (1987), 1987 CanLII 6795 (ON CA), 36 C.C.C. (3d) 142 (Ont. C.A.); R. v. Lukavecki, [1992] O.J. No. 2123 (Gen. Div.); R. v. Bassi, 2015 ONCJ 340, at para. 7.
[14] "Special circumstances" can also exist in circumstances where it is apparent to the police that an accused does not understand their rights because of their mental state. In these circumstances, the police are obliged to re-advise the accused of their rights and, if requested, provide her with another opportunity to contact counsel.
[15] Here, the appellant argues that "special circumstances" existed. However, she further submits that the trial judge misapprehended her argument. At trial, the appellant submitted that her inability to effectively communicate with duty counsel meant that the police were obliged to re-read her right to counsel and provide her with a second call if she wanted one. Instead, claims the appellant, the judge focused on the quality of advice given by duty counsel.
[16] I disagree. The judge's extensive reasons dealt with the appellant's ability to hear inside the booth. The judge made explicit findings that the appellant told the police that despite any difficulties she properly communicated with counsel. As the judge observed, if the appellant lied to the police to facilitate a quick exit from the R.I.D.E. truck, it is hard to understand how the police could be faulted. The judge correctly concluded it was incumbent upon the appellant to diligently pursue her rights and, if she felt that she could not properly converse with duty counsel, she should have communicated that fact to the police.
[17] I agree with the Crown that this case is very similar to the situation in R. v. McNeill, 2019 ONSC 487, where the court found that special circumstances did not exist because the appellant told the police that she understood the right to counsel instruction given.
[18] Here, as noted, the judge found that not only did the appellant fail to indicate a lack of comprehension, she did the opposite: telling the officer that she was able to understand duty counsel. As the judge correctly observed, police are not "mind readers" and in light of the information provided by the appellant, there police were not obliged to take further steps.
The Judge's Comments on Prior Complaints
[19] The appellant also complains about the following additional comments made by the trial judge regarding the noise issues in the privacy booth:
My decision on s.10(b) may very well have been different had there been a different evidentiary backdrop. The fact that a privacy booth provides inadequate space and hearing so that a person can meaningfully engage with Duty Counsel is a problem. Had there been evidence that this was a more consistent problem, had there been evidence that there had been other complaints about this privacy booth that the officers knew that it was inadequate, in my view we would be in a different place.
[20] The appellant submits that this approach was wrong in law and injected irrelevant factors into the trial judge's analysis.
[21] The appellant argues that whilst evidence of a systemic problem would be of some relevance in the s. 24(2) analysis, it had no place in deciding whether her Charter rights were breached. Absence of complaints, says the appellant, would not mean her rights had not been breached just as evidence of complaints could not, of themselves, lead to a finding that there had been a breach.
[22] The appellant submits that by approaching the Charter issue in this way, the trial judge erroneously placed a burden on her to call evidence of prior complaints.
[23] The Crown agrees with the appellant that the comments were both wrong in law and unnecessary. However, the Crown further submits that the judge did not use them to decide the Charter issue.
[24] Having reviewed the judge's comments, I agree that the issue of "other complaints" played no part in the judge's analysis. The judge had already concluded that the appellant's Charter rights had not been breached because she had been able to effectively communicate with duty counsel or had not diligently pursued her right to counsel. Having made that finding, the comments concerning "other complaints" were extraneous to her conclusion.
[25] I agree with the appellant that the judge's view that if there had been evidence of prior complaints "we would be in a different place" is problematic. However, a reading of the judge's reasons as a whole shows that these comments were obiter and made as a helpful suggestion to police that by addressing noise issues they could avoid future allegations of Charter infringements.
[26] For these reasons, the appeal is dismissed.
S.A.Q. Akhtar J.
Released: 5 March 2021
COURT FILE NO.: CR-20-10000039-00AP
DATE: 20210305
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
VANESSA LUIS
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.