OSHAWA COURT FILE NO.: CR-19-15165-00AP
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JAMES WAYNE SIKORA
Appellant
David Parke, for the Crown
Adam Little, for the Appellant
HEARD: August 13, 2021
REASONS FOR DECISION
On Appeal from the Judgment of Justice Wakefield of the Ontario Court of Justice on July 29, 2019, R. v. Sikora, 2019 ONCJ 570.
Issues on Appeal
1The Appellant was convicted on July 29, 2019 of the charge of operation of a motor vehicle with blood alcohol exceeding 80 milligrams/100 millitres of blood contrary to s. 253(1)(b) of the Criminal Code.
2This Appeal raises three issues:
a) That the trial judge erred in law in concluding that the Appellant’s breath samples were taken “as soon as practicable” after the time of the offence as required by s. 258(1)(c) (ii) of the Criminal Code.
b) That the trial judge erred in law by finding that the Crown could rely on the “presumption of identity” in s. 258 (1)(c) of the Criminal Code to establish what the Appellant’s blood alcohol concentration was at the time of the offence.
c) That the trial judge erred in failing to find that the Appellant’s rights to counsel under Charter s. 10(b) was violated and in failing to exclude the evidence pursuant to s. 24(2) of the Charter.
3For the reasons set out below the appeal is dismissed.
Facts
4The Appellant was charged with one count each of impaired care or control of a motor vehicle and driving with a blood alcohol level exceeding 80 milligrams/100 millitres of blood on February 16, 2018.
5The Appellant was suspected of poor driving on Highway 401 resulting from several civilian complaints. A police officer was dispatched to investigate. He observed the Appellant’s vehicle weaving and going over the demarcation line, confirmed that the licence plate was the same as the subject of the civilian complaints, and executed a traffic stop.
6The officer concluded reasonable and probable grounds that the Appellant was impaired, and effected a formal arrest. The Appellant was read his right to counsel and taken to the police station. At the station the Appellant was put in touch with Duty Counsel. I will return to these facts in greater detail when I address the Appellant’s s. 10(b) ground of appeal.
7The Appellant was turned over to the breath technician for testing. The first breath test was conducted approximately 66 minutes after the Appellant was stopped on the highway, and approximately 50 minutes after the Appellant’s arrival at the police station. The second test was conducted 22 minutes later. I will return to the facts relating to the timing of the breath tests when I address the Appellant’s “as soon as practicable” ground of appeal.
8The trial judge accepted the blood alcohol content readings into evidence. The Appellant’s blood alcohol readings were 152 and 149.
9The trial judge acquitted the Appellant of impaired driving, but convicted the Appellant of driving with a blood alcohol level exceeding 80, and imposed the minimum fine of $1,000.
Issue #1: Was the Appellant’s Breath Sample Taken “As Soon as Practicable”?
10Section 258(1)(c) (ii) of the Criminal Code, which was in force when the Appellant was arrested1, required breath samples to be taken “as soon as practicable”. The section provided:
258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),
(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if
(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,
11The trial judge found that the Crown had proved that the breath sample was taken as soon as practicable. He stated:
The breath test did not occur until 07:23 in the afternoon due to the instrument having been turned off prior to the breath tech’s shift, requiring a cold start, as well as the officer choosing to equip himself before checking the instrument and finding out that it had indeed been turned off. However, I do note that the first test was completed within 50 minutes of the defendant’s arrival at the station and being uncuffed. Overall, the tests were not overly delayed, and conducted within a reasonable amount of time, satisfying the as soon as practical (sic) requirement.
12The Appellant contends that this passage demonstrates that the trial judge considered only the time after the Appellant arrived at the station, not the time after the offence was alleged to have been committed, as required by ss. 254(3). He argues that the trial judge erred in law by focusing on the delay after the arrival at the station, and he then compounded this error by misapprehending the evidence and failing to consider that there was an unexplained delay of at least 31 minutes.
13In this case the police stopped the Appellant at 6:14 p.m. At 6:18 the arresting officer left the scene with the Appellant and arrived at the police station at 6:30 p.m. The Appellant spoke to duty counsel from 6:41 to 6:44 p.m., and was lodged in a cell until he was turned over to the technician at 7:15 p.m.
14The technician began the “cold start” of the breathalyzer at 6:14 p.m., which was soon after he began his shift. The technician testified that the breathalyzer would be out of the cold start by 6:34 p.m., but there could be another 5 minute delay before the instrument was ready. The technician began a diagnostic check at 6:54 p.m., which took one or two minutes, and then conducted a calibration check from 7:10 to 7:11 p.m. At 7:13 the technician notified the arresting officer that he was ready for the Appellant who provided two samples at 7:23 p.m. and 7:45 p.m.
15The Appellant argues that there was a significant 34 minute delay from 6:39 to 7:13 p.m., for which the Crown could only account for the approximately three minutes for the diagnostic and calibration checks. This leaves 31 minutes, which the Appellant argues is “totally unexplained”. The delay referenced by the trial judge – from 6:15 to 6:39 – related only to the cold start, and, the Appellant argues “had nothing to do with the unexplained delay from 6:39 to 7:13 p.m.”
16The Appellant argues that the Crown failed to prove the “as soon as practicable” requirement, and the trial judge erred in concluding otherwise.
Analysis
17The meaning of “as soon as practicable” in s. 258 (1) (c) (ii) of the Criminal Code was set out by the Court of Appeal in R. v. Vanderbruggen, 2006 CanLII 9039 (ON CA), at paras. 12-13 (citations omitted):
That leaves the question that is at the heart of this appeal—the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances… There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably…
In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The “as soon as practicable” requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that—in all the circumstances—the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. [Emphasis added.]
18The Court of Appeal concluded, at para. 16: “[T]hese provisions, which are designed to expedite trials and aid in proof of the suspect’s blood alcohol level, should not be interpreted so as to require an exact accounting of every moment in the chronology”.
19Whether the samples were taken as soon as practicable is an issue of fact for the trial judge (Vanderbruggen, at para. 14). The Crown must prove beyond a reasonable doubt that the police took the breath samples as soon as practicable. Whether the Crown has called enough evidence to meet that burden is a question of fact: R. v. Beharry, 2014 ONSC 848, at paras. 17-18; R. v. Cargill, 2014 ONSC 3897, at para. 11.
20In my view, considering the reasons for judgment delivered by the trial judge against the complete evidentiary background of this case, there was sufficient evidence upon which the trial judge could conclude that the samples were taken as soon as practicable, and his analysis does not disclose any legal error.
21The trial judge focused on the “50 minutes of the defendant’s arrival at the station”, because there was no argument that the preceding 16 minutes from the stopping of the Appellant at 6:14 p.m. to his arrival at the police station at 6:30 p.m. was anything but reasonable. The trial judge’s reasons are not required to detail “an exact accounting of every moment in the chronology”, and he made no error in law by focusing his analysis on the time period starting from the Appellant’s arrival at the police station.
22Contrary to the Appellant’s assertion, there is no 31 minute period of unexplained delay. The chronology in this case was as follows:
Appellant stopped by the police: 6:14 p.m.
Appellant taken to the police station: 6:18 p.m.
Cold start: 6:14 – 6:34 p.m.
Appellant arrives at the police station: 6:30 p.m.
Duty Counsel called: 6:35 p.m.
Appellant spoke to Duty Counsel: 6:41 – 6:44 p.m.
Diagnostic check: 6:54 – 6:56 p.m.
Calibration check: 7:10 - 7:11 p.m.
Technician notified arresting officer he was ready: 7:13 p.m.
Appellant brought into the room for testing: 7:15 p.m.
First sample: 7:23 p.m.
23There are ten-minute periods that are not accounted for in this chronology, but, looking at the entire chain of events, there is, in my view, sufficient evidence and detail to permit the trial judge to conclude, as he did, that the police acted reasonably in the circumstances and the samples were taken within a reasonably prompt time. The trial judge did not have to engage in a minute by minute analysis to reach the conclusion that the “as soon a practicable” test was met in this case.
Issue # 2: Can the Crown rely on the “presumption of identity” in s. 258 (1) (c) of the Criminal Code?
Introduction
24The Appellant was charged with the offence of operation of a motor vehicle with blood alcohol exceeding 80 milligrams/100 millitres of blood contrary to s. 253(1)(b) of the Criminal Code. By the time his trial commenced in March 2019, Parliament had enacted new impaired driving legislation: Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances and to make consequential amendments to other Acts, S.C. 2018, c. 21 (Bill C-46), which came into effect on December 18, 2018.
25The legislative regime that existed immediately prior to Bill C-46 (the pre-Bill C-46 regime) required the Crown to prove the alcohol content in a driver’s blood at the time of driving. The statutory regime in s. 258 (1) provided two evidentiary mechanisms by which the Crown could prove its case: the presumption of accuracy and the presumption of identity.
26The Supreme Court of Canada defined these terms in R. v. St‑Onge Lamoureux, 2012 SCC 57, at para. 6:
According to the presumption of accuracy, the certificate of the technician responsible for the analyses is presumed to provide an accurate determination of the person’s blood alcohol level at the time the breath samples were taken. According to the first presumption of identity, a person’s blood alcohol level as shown by the test is presumed to be the same as his or her blood alcohol level at the time of the alleged offence.
27Bill C-46 repealed the impaired driving offences contained in ss. 249 to 261 of the Code and replaced them with a new impaired driving regime found in ss. 320.11 to 320.4 of the Code.
28The focus of the new offence is whether a driver had blood alcohol concentration that is “equal to or exceeds 80 mg of alcohol in 100 mL of blood” within two hours of operating a motor vehicle. The blood alcohol level at the time of driving no longer matters. This change meant that the Crown no longer needed to demonstrate the actual alcohol content in a driver’s blood at the time of driving. Since the actual reading at the time of driving is no longer material, the presumption of identity was redundant and omitted from the new sections.
29The presumption of accuracy, however, is still required as proof of the readings taken by a technician, and is preserved in the new s. 320.31(1) of the Criminal Code.
30Recognising that there would be alleged offences (like the case at hand) committed prior to December 18, 2018 that would come to trial afterwards, s. 32(2) of the Amendment Act states that the presumption of accuracy continues to apply to any trial that commenced after December 18, 2018 if the “sample or samples to which the trial relates were taken before that day”. However, there is no equivalent transitionary section which referred to the presumption of identity.
Position of the Appellant
31Since Bill C-46 repealed the presumption of identity in s. 258(1)(c) but did not preserve it as it did with the presumption of accuracy, the Appellant argues that the presumption of identity did not survive the amendments. Without the presumption of identity there is no evidence that the Appellant’s blood alcohol at the time of testing (7:23 p.m. and 7:45 p.m.) was the same as his blood alcohol at the time of the offence (6:14 p.m.), and he must be found not guilty.
32Moreover, the Appellant argues that in St‑Onge Lamoureux the Supreme Court of Canada held that the presumptions of accuracy and identity in s. 258 (1)(c) only survived constitutional scrutiny because they could both be rebutted by showing the breathalyzer was malfunctioning or operated improperly. The new legislation removes the ability to rebut the presumption of accuracy in this manner, and therefore, he argues, it must also remove the ability to rebut the presumption of identity in this manner. The old regime is, therefore, not compatible with the new regime, and cannot be saved by the transitional provisions. The Appellant states that he is not challenging the constitutional validity of s. 258(1) (c), but argues instead that the putative unconstitutional effect means that the provision cannot survive the transitional provisions as a matter of statutory interpretation.
33The Appellant argues that this does not have the effect of creating a legislative lacuna because the Crown is still able to prove its case by calling expert evidence without relying on the now repealed presumption of identity.
34Finally, the Appellant argues that the presumption of identity is not saved by s. 43 of the Interpretation Act, R.S.C. 1985, c. I-21, because s. 43 is modified by s. 44 of the Act, which applies in circumstances such as this one. The relevant parts of sections 43 and 44 provide:
43 Where an enactment is repealed in whole or in part, the repeal does not
(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;
35The Appellant argues that the combined effect of ss. 43 and 44 is that new substantive law does not apply to offences that pre-date the amendment, but the new procedural law does apply, so long as the requirement set out in s. 44 (c) and (d) can be met: if the former enactment can be applied consistently with the new procedure and the new procedure can be adapted. In the present case, he argues, the presumption of identity cannot be applied in conformity with the new legislation, and this implies that Parliament did not intend for the two schemes to operate in conjunction.
Position of the Crown
36The Crown takes the position that this issue has already been determined by several courts, which have (with one early exception) rejected the Appellant’s argument. The Crown argues that this issue was settled by the Ontario Superior Court in the decision of Akhtar J. in R. v. Persaud, 2020 ONSC 3413.
37The Crown argues that it is a well accepted principle of statutory interpretation, confirmed by the Interpretation Act, that subject to express language to the contrary, those who commit an offence prior to the repeal of the offence provision may still be prosecuted under the offence as it was written.
38The Crown argues that, as a matter of statutory interpretation and consistent with ss. 43 and 44 of the Interpretation Act, the presumption of identity continues for pre-Bill C-46 cases, and the Appellant could have led evidence to rebut the presumption of identity exactly as he could have done prior to the enactment of Bill C-46. The Appellant did not seek to introduce any such rebuttal evidence at trial, and he cannot complain on appeal that the legislation should be interpreted as prohibiting him from adducing evidence that he did not seek to introduce at trial.
Decision at Trial
39The Appellant raised this issue at trial, but defence counsel (not the same counsel as on this appeal) advised the trial judge that he was aware that the trial judge had already rejected the same argument in another case and accepted that the result would be the same as the other case. Defence counsel reserved the right to raise the issue on appeal.
Analysis
40The Appellant contends that the argument that he is advancing is not the same as the argument rejected by this Court in Persaud. I find this unpersuasive.
41In Persaud, Akhtar J. reviewed the relevant sections of Bill C-46 and the Interpretation Act (IA). He stated the issue before him at para. 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.
42That, in a nutshell, is the issue raised by the Appellant in this appeal. The substance of the argument is the same, and I agree with and adopt the analysis and conclusion of Akhtar J. in Persaud.
43So as not to re-invent the wheel, I adopt the following analysis from Persaud at paras. 42-47:
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.
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”.
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.
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.
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.
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.
44The Court concluded, at para. 55: “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”.
45I note that the analysis and conclusion in Persaud has been adopted in the following cases: R. v. Hanna, 2021 ABQB 68, at para. 87; R. v. Pawson, 2021 BCCA 22, at para. 29; R. v. Sumon, 2020 ONCJ 331, at paras. 89-91.
46The same conclusion was reached in other provinces prior to Persaud: R. v. Cameron, 2020 NSSC 58, at para. 39; R. v. McManus, 2019 ABQB 829, at para. 91.
47I also reject the Appellant’s argument that this interpretation would lead to an unconstitutional result because the presumption of identity would continue but the accused would be denied the ability to rebut the presumption by leading evidence showing the breathalyzer was malfunctioning or operated improperly. The Appellant did not attempt to proffer any such rebuttal evidence at trial, so this is something of a hypothetical question in this case. Whether such evidence is admissible for offences committed after December 2018 is irrelevant to its admissibility for offences committed pre-Bill C-46. The continuation of the presumption of identity in transitional cases is a package deal, and the “corresponding methods of proof” (Persaud, para. 44), apply to both the Crown and the defence. Properly interpreted, the appellant was free to lead evidence to rebut the presumption of identity exactly as he could have done prior to the enactment of Bill C-46. This interpretation is also consistent with the Charter of Rights and Freedoms.
48Accordingly, I find that the Crown could rely on the presumption of identity and the trial judge made no legal error in this regard.
Issue #3 – Were the Appellant’s rights to counsel under Charter s. 10(b) violated?
49The Appellant argues that the trial judge erred in finding that the Appellant’s s. 10(b) right to counsel was not violated.
Facts
50The Appellant was read his right to counsel upon arrest. The arresting officer asked him if he wished to speak to a lawyer now, and the Appellant said yes. The Appellant was asked “Do you have a lawyer of choice or do you wish to speak to duty counsel”, and the Appellant answered, “Duty counsel, yes”. At the station the Officer called the Duty Counsel at 6:35 p.m. The Duty Counsel was not immediately available but called back at 6:41 p.m. and the Appellant spoke to Duty Counsel.
51At the trial the Appellant confirmed that at the time he understood that the right to counsel includes an opportunity to consult with a lawyer of your choice or duty counsel. The trial judge stated that the Appellant “was forthright in considering [conceding?] he initially did agree to talk to Duty Counsel”. The trial judge also found that “Afterwards there is no explicit complaint by the defendant regarding advice given to him prior to the breath test.”
52When the Appellant was brought to the breath room for the second sample, he asked the technician, Officer Sauve, if he got a second phone call. Trial counsel produced an agreed transcript of the Appellant’s conversation with Officer Sauve:
Applicant: Do I get a second call?
Officer: No, you only get the one call.
Applicant: Oh really.
Officer: Yep.
Applicant: But I never called anybody, Duty Counsel called me.
Officer: Ya, but the officer asked if you wanted to call…
Applicant: No he didn’t ask me if I wanted to call anyone.
Officer: That’s something you can talk about with your lawyer then, ok.
Applicant: Ok, that’s fine, no worries.
Officer: I wasn’t there, so ya, I’m not sure the type of conversation you had with the arresting officer, but he was, from his perspective, he was instructed to call duty counsel ok, that’s all.
Applicant: Yep, that’s fair.
Officer: Do you have your own lawyer?
Applicant: ummhmm (nods in the affirmative)
Officer: Ok, well you can talk to him after you leave here.
Applicant: Ok.
53At trial the Appellant testified that he agreed to speak to Duty Counsel because he “felt rushed” in the back of the police cruiser and “felt rushed” during his three-minute conversation with Duty Counsel at the police station.
54In his testimony at trial, the Appellant testified that he was unhappy with Duty Counsel and wanted to call his own lawyer.
55In his Reasons, the trial judge summarized the Appellant’s testimony at the voir dire:
While waiting for the breath tests after the Duty Counsel call, he (the Appellant) describes himself as being unhappy with Duty Counsel and wanted to call Mr. Isenstein whom he had known for 25 years as a family friend and who’s contact numbers he actually had in his cell phone which was with him at the OPP station in his property. He felt, quite understandably, that the police officers had all of the control over him.
In cross-examination, the defendant again asserted a dissatisfaction with Duty Counsel, he felt rushed. He felt uncomfortable with Duty Counsel. He felt uncomfortable talking to a stranger.
56The Appellant relies on the next passages from the trial judge’s Reasons as the grounds for his appeal:
However, and fatal to this application, the defendant also said that while he did not understand everything the Duty Counsel said, and the defendant conceded he did not have any issue with the advice given by Duty Counsel and that his main concern was his feeling uncomfortable speaking with a stranger. In my view, discomfort with a stranger is not the basis for a breach of a detainee’s Charter section 10 (b) right.
I need not review the copious caselaw filed on this application and referenced in submissions as in my view, the Charter application is resolved in the simple factual finding. In the absence of that concession, however, by the defendant, I would certainly have come to a different conclusion. The breath tech [Officer Sauve] knew of the defendant’s desire to speak to the defendant’s own lawyer. The officer conceded it would be for legal advice. That, by itself, would be an indicator of dissatisfaction with the Duty Counsel from my perspective. I accept the defendant’s description of the officer ‘shutting him down’ on the issue of his own lawyer as being consistent, albeit in a different perspective, from the officer’s testimony about moving the matter forward in an efficient manner.
57The Appellant argues that Officer Sauve had an obligation to make further inquiries of the Appellant to find out if he was dissatisfied with the advice provided by Duty Counsel. He argues that the trial judge erred in principle by incorrectly applying the legal standard because he failed to recognize that these were circumstances where the police were constitutionally required to take steps to implement further contact with counsel. He also argues that the right to counsel includes the right to counsel of choice, and therefore the trial judge was wrong to find that “discomfort with a stranger” cannot be a basis for implementing a right to a further consultation with counsel.
Legal Principles
58The right to a second or further consultation with counsel was considered in the Supreme Court of Canada’s trilogy of right to counsel cases: R. v. Sinclair, 2010 SCC 35; R. v. Willier, 2010 SCC 37 and R. v. McCrimmon, 2010 SCC 36.
59In Sinclair the Supreme Court affirmed (at para. 64) that the s. 10(b) right to counsel “is essentially a one-time matter with few recognized exceptions” and that (at para. 65) a request, without more, is not sufficient to “retrigger” the s. 10(b) right to counsel. While the Supreme Court recognized (at para. 49) that the “police are…at liberty to facilitate any number of further consultations with counsel”, it concluded that a second consultation will be required only when there is a change of circumstances. The Court gave three examples of such a change: (i) the use of non-routine procedures like participation in a line-up or submitting to a polygraph, (ii) a change in jeopardy if new charges are added or the investigation takes a new or more serious turn, or (iii) there is reason to believe that a detainee who waived his right to counsel did not understand his initial rights. The Court noted that the categories are not closed, but that “additions to them should be developed only where necessary to ensure that s. 10(b) has achieved its purpose.”
60The Court concluded (at para. 55):
The change of circumstances… must be objectively observable in order to trigger additional implementational duties for the police. It is not enough for the accused to assert, after the fact, that he was confused or needed help, absent objective indicators that renewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so.
61Significantly, the majority of the Court rejected Binnie J.’s position that would give a right to further consultation with counsel (at para. 56) “to include all situations where the detainee reasonably requests this in the course of a custodial interview”. The majority rejected this approach “which would require that questioning be suspended pending a reasonable opportunity to consult further with counsel” because it was not “sufficiently connected to the purpose of ensuring that the detainee remains properly advised about how to exercise his or her rights.”
62In Willier the Supreme Court of Canada considered (para. 24) “the right to counsel of choice under s. 10(b) of the Charter and the corresponding obligations on the police to facilitate that choice”. The Court stated (at para. 33):
Detainees who choose to exercise their s. 10(b) right by contacting a lawyer trigger the implementational duties of the police. These duties require 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. However, these obligations are contingent upon a detainee’s reasonable diligence in attempting to contact counsel… What constitutes reasonable diligence in the exercise of the right to contact counsel will depend on the context of the particular circumstances as a whole.
63The Court explained what would happen if the applicant’s “counsel of choice” was not available within a reasonable amount of time (at para. 34):
Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation… If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended…As Lamer J. emphasized in Ross, diligence must also accompany a detainee’s exercise of the right to counsel of choice…
64In Willier the appellant was unsuccessful in contacting his counsel of choice. The Court concluded (at para. 39) that the appellant had “exercised his right to counsel by opting to speak with Legal Aid”. Significantly for the purposes of the present appeal, the Court rejected the appellant’s claim that his consultation with duty counsel was inadequate and did not amount to a “meaningful exercise” of his s. 10(b) right. The Court stated (at paras. 40 – 41):
Effectively, his argument implies that the police must ensure that a detainee’s legal advice meets a particular qualitative standard before they are entitled to commence with an investigative interview.
While s. 10(b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does not require them to monitor the quality of the advice once contact is made. The solicitor-client relationship is one of confidence, premised upon privileged communication. Respect for the integrity of this relationship makes it untenable for the police to be responsible, as arbiters, for monitoring the quality of legal advice received by a detainee. To impose such a duty on the police would be incompatible with the privileged nature of the relationship. The police cannot be required to mandate a particular qualitative standard of advice, nor are they entitled to inquire into the content of the advice provided.
…[U]nless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview. In this case, despite the brevity of Mr. Willier’s conversations with Legal Aid, Mr. Willier gave no indication that these consultations were inadequate. Quite the contrary, he expressed his satisfaction with the legal advice to the interviewing officer, prior to questioning. [Emphasis added.]
65In McCrimmon the Supreme Court applied the principles stated in Sinclair and Willier. While the appellant had expressed a preference for speaking with his own lawyer, he opted to speak to a legal aid lawyer when his own lawyer was not immediately available, and expressed satisfaction with the consultation. The Court concluded (at para. 19) that in these circumstances there was no further obligation on the police to hold off the interrogation until the appellant’s own lawyer became available. The Court also concluded (at para. 25) that there were no changed circumstances during the course of the interrogation that required renewed consultation with a lawyer.
66It is apparent from this trilogy of cases, and in particular the above quoted passages from para. 41 of Willier, and para. 55 of Sinclair, that the focus of the analysis must be on what was said by the accused at the police station, not what the accused later testifies he or she was thinking but did not say.
Analysis
67Most of the cases dealing with the further consultation issue are similar to Willier and McCrimmon in that duty counsel is the second choice: the detainee initially asks to speak to his own counsel, but after being unsuccessful, settles instead for duty counsel (see also, for example, R. v. Markovic, 2013 ONCJ 300). In the present appeal, the evidence is that Duty Counsel was the choice communicated by the Appellant to the arresting officer. The Appellant understood his right to counsel and chose to speak to duty counsel. It was not incumbent on the police to question that choice. Indeed, the police are not permitted to do anything to undermine that choice: R v. Hamasaki, 2020 ONSC 2579. The Appellant’s reason given at the voir dire for choosing duty counsel – that he felt rushed – was not known to the police at the time and is not relevant to the Charter s. 10 (b) analysis.
68Unless the Appellant’s consultation with duty counsel was somehow deficient, the Appellant’s request to speak to a different counsel did not “retrigger” his s. 10(b) right to counsel and he was not denied the right to counsel or the right to counsel of choice. He was denied the right to an additional consultation; a right that the Supreme Court of Canada has held applies only when there has been a change of circumstances.
69While I agree with the trial judge’s conclusion on this issue, I do not agree with some of his analysis.
70In my view, the trial judge’s analysis placed too much emphasis on the Appellant’s unexpressed thoughts that were disclosed for the first time on the voir dire. The focus of the analysis should have been on what the Appellant actually said to Officer Sauve at the time. The trial judge’s approach was inconsistent with the direction given in Willier, at para. 41, that:
[U]nless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview.
71The trial judge’s approach was also inconsistent with para. 55 of Sinclair, where the Court stated:
The change of circumstances… must be objectively observable in order to trigger additional implementational duties for the police. It is not enough for the accused to assert, after the fact, that he was confused or needed help, absent objective indicators that renewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so.
72Reviewing the transcript of the brief conversation between the Appellant and Officer Sauve, the Appellant does not at all indicate that the advice the he received from Duty Counsel was inadequate. He simply asks whether he gets a second call, and, consistent with the Supreme Court of Canada’s decision in Sinclair/Willier/McCrimmon, is told that he only gets one call. A request, without more, is not sufficient to retrigger the s. 10(b) right to counsel and be advised thereof. The Appellant’s complaint to Officer Sauve is that he never called anybody because duty counsel called him. That is not one of the three circumstances enumerated by the Supreme Court in which a second consultation is required. It is clear from Sinclair and Willier that the police are not obliged to solicit complaints from detainees about the quality of legal advice provided.
73I also disagree with the trial judge’s statement that “The breath tech [Officer Sauve] knew of the defendant’s desire to speak to the defendant’s own lawyer. The officer conceded it would be for legal advice. That, by itself, would be an indicator of dissatisfaction with the Duty Counsel from my perspective.”
74With respect, such an inference is inconsistent with the Supreme Court of Canada’s decisions in Sinclair and Willier. As indicated in Willier the police are not required to monitor the quality of legal advice and are not permitted to inquire into the content of the advice provided. There is a presumption, absent evidence to the contrary, that duty counsel provided proper legal advice (Sinclair, at para. 57; R. v. Tahmasebi, 2020 ONCA 47, at para. 29: “The appellant must accept the assumption that the legal advice he received was, in its context, sufficient and correct.”, and R. v. Winterfield, 2010 ONSC 1288, at para. 73).
75The fact that the Appellant responded to Officer Sauve’s question of “Do you have your own lawyer?” with “ummhmm” and nodded in the affirmative cannot be taken as meaning that he did not receive proper legal advice from Duty Counsel.
76I do, however, agree with the trial judge that “discomfort with strangers” is not one of the three circumstances enumerated by the Supreme Court in which a second consultation is required. Were it otherwise, the results in Willier and McCrimmon would have been different.
77The Appellant does not fall into any of the categories where thus far a right to re-consultation has been recognized:
The Appellant’s jeopardy remained the same throughout.
The police were not using non-routine procedures; the breath sample procedure was standard procedure for this charge and was “within the expectation of the advising lawyer at the time of the first consultation” (Sinclair, at para. 50; Tahmasebi, at para. 24).
Finally, there were no objective indicators that would lead the police to believe that the Appellant was confused or did not understand his rights. It is not enough for the accused to assert, after the fact, that he did not understand “everything”.
78The Court of Appeal in Tahmasebi stated, at para. 38:
Although Sinclair makes it clear that the categories of cases in which there is a right to re-consult counsel “are not closed”, a new category should only be developed where there is a change of circumstances that makes a second consultation necessary “to ensure that s. 10(b) has achieved its purpose”: at para. 49. Where the circumstances do not fall within one of the three previously recognized situations, the question is whether “a further opportunity to consult a lawyer is necessary to fulfill s. 10(b)’s purpose of providing the detainee with advice in the new or emergent situation” [Emphasis added.]: at para. 54.
79The Court of Appeal declined to create a new category of cases in Tahmasebi, at para. 39:
Because the demands are foreseeable and the initial advice would be expected to address them and their consequences, it would not be appropriate to create a new category of cases in which there is an entitlement to a second consultation with counsel to cover the circumstances in the case at bar.
80The police demand for two breath samples was foreseeable and the initial advice of Duty Counsel would be expected to address them and their consequences. There is, in my view, nothing in this case that would call for the creation of a new category of cases in which there is an entitlement to a second consultation. Expanding the right to a second consultation in the circumstances of this case would be directly contrary to the logic and conclusion of the Supreme Court of Canada in Sinclair/Willier/McCrimmon.
81Accordingly, I conclude that there was no breach of the Appellant’s s. 10(b) rights and reject this ground of appeal.
Charter s. 24(2)
82In light of my conclusion that no infringement of the Charter took place, it is unnecessary for me to consider whether, if there had been a breach, evidence should have been excluded under s. 24(2) of the Charter.
Conclusion
83For the foregoing reasons, the appeal is dismissed.
Justice R.E. Charney
Released: September 2, 2021
Footnotes
- These provisions were repealed in December 2018 as part of Bill C-46, Parliament’s reform of the Criminal Code offences related to impaired driving. The repeal of the former impaired driving provisions and their replacement by a new regime is the subject of the Appellant’s second ground of Appeal, that the Crown could not rely on the “presumption of identity” in s. 258 (1) (c) of the Criminal Code, and will be discussed in greater detail when I address that argument.
