COURT FILE NO.: 29/19
DATE: 20210924
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
TOM MEEHAN, for the Respondent/Crown
Respondent
- and -
WARREN DICKSON
MARK HALFYARD, for the Appellant
Appellant
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable Wendl, dated July 18, 2020 and reported at 2019 ONCJ 522]
DURNO J
[1] A police officer saw the appellant standing up from the driver’s door of his car in the parking lot of a pizza parlour. The car radio was playing loudly. The keys were in the ignition but the engine was not running. When the officer spoke with the appellant and detected an odour of alcohol on his breath, he made an Approved Screening Device (ASD) demand, the appellant provided a ‘fail’ reading and was arrested for care or control having consumed excess alcohol.
[2] He was given his rights to counsel and said he understood. When asked if he wanted to speak to a lawyer, the appellant relied, “Sure. I’m not impaired.” At the detachment, he provided breath samples that analyzed at 95 and 102 milligrams of alcohol in 100 millilitres of blood.
[3] At his trial for having the care or control of a motor vehicle having consumed excess alcohol, the appellant testified he had started drinking from a bottle of schnapps after he placed his take-out order. He was going to leave his car in the parking lot and walk the three or four minutes to where he was going to spend the night. In rejecting the appellant’s evidence about his plan, the trial judge relied upon the appellant’s statement that he was not impaired, concluding if he was not impaired there was no reason to leave his car in the parking lot.
[4] The appellant also testified that while in the parking lot he told the officer there was a lawyer he wanted to contact but did not recall his name. He did not know how to contact him. The appellant testified that the officer gave him two choices, his own lawyer or duty counsel. That was how he understood the rights. The officer denied the appellant mentioned a lawyer he wanted to call. The trial judge made no finding of fact whether there was a discussion about a lawyer with whom the appellant wanted to speak.
[5] The appellant argued the arresting officer steered him to duty counsel when he wanted to call the lawyer and failed with regards to the implementational duties under s. 10(b) of the Charter. The trial judge found there was no breach of s. 10(b), finding a second reading of the rights at the detachment cured any defect in what the appellant was told in the parking lot. He convicted the appellant.
[6] The appellant appeals contending the trial judge erred:
(a) in regards to the finding of care or control by improperly using his roadside statements that he was not impaired as substantive evidence to reject his testimony that he was not going to drive after he got his food, and
(b) in regards to the “over 80” by finding his s. 10(b) rights were not violated and failing to exclude the blood alcohol readings.
[7] Mr. Halfyard contended that if the appeal was allowed on the care or control issue only, the result would be a new trial. If the appeal was allowed on a Charter issue, the result would be an acquittal because the readings should be excluded under s. 24(2) of the Charter.
[8] In oral submissions, Mr. Meehan did not contest that the trial judge erred in relying on the appellant’s comment to the officer in the parking lot but submitted the error was harmless. Further, the Crown submits the trial judge made no errors with regard to the rights to counsel.
[9] For the following reasons, the appeal is allowed and a new trial ordered.
The Evidence
The Crown’s Evidence
[10] Constable Wing, an Ontario Provincial Police officer, was dispatched to a pizza parlour regarding “an impaired person.” Upon arrival, he saw the appellant in the parking lot by the open driver’s door of a vehicle. The car was not running although its radio was playing loudly.
[11] The officer watched the appellant walk into the restaurant and lean on the counter. He went inside and had the appellant accompany him into the parking lot by his car. The officer spoke to the appellant, noted an odour of alcohol on his breath, and made an ASD demand. The appellant admitted he had been drinking and gestured to a reusable canteen in the car’s center console. The appellant provided a breath sample that resulted in a ‘fail’ reading, was arrested and given his rights to counsel.
[12] Upon searching the appellant’s car, the officer found a reusable canteen containing peppermint schnapps in the cup holder.
The Rights to Counsel in the Parking Lot
[13] With regard to the initial rights to counsel, the officer testified he told the appellant:
A. … I am arresting you for care and control over 80 milligrams. It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have 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 a number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice right now.” And then the question, “Do you understand?” and then, “Do you wish to call a lawyer now?”
MR. MEEHAN: Q. And did he answer, “Do you understand?”
A. He … answered, “Absolutely.”
Q. And to the question, “Do you wish to call a lawyer now?”
A. He said, “Sure, I’m not impaired.”
Q. And were you able to facilitate his rights to counsel at that location?
A. Yes. I facilitated his rights to counsel. Did I call a lawyer right from there?
Q. Right.
A. We did not, no.
Q. What did you do exactly?
A. I – after that, it was ambiguous onto what lawyer he wanted, so I would have had a discussion with him and asked him, “Do you want a lawyer or do you want duty counsel?” to which he indicated, “Duty counsel,” because I have no notes otherwise. And I never have ever written notes other than that if it’s just duty counsel… I do not write notes if the accused indicates they want duty counsel…
[14] Before the trial, because the officer’s notes were less than fulsome, the Crown asked Constable Wing to prepare a supplementary statement regarding the discussions about the rights to counsel and how duty counsel was contacted. The officer was cross-examined about the supplementary statements as follows:
Q. … And is it your evidence, then, that you would have told him that he could choose his own lawyer, search for his own lawyer, or use duty counsel?
A. I would have used plain language to indicate that, yes. I don’t know the exact phrases I would have used, but I would have indicated to him that, ‘You can have whatever lawyer you choose, or duty counsel.’
Q. Okay. Now, in your supplementary witness statement …, you write as follows, “As a standard operating procedure when giving arrested persons their rights to counsel and indicated they want to speak to a lawyer, I ask if they have their own lawyer or I will call duty counsel I spoke about.” That’s correct?
A. That’s what I wrote, yes.
Q. Well, is it correct that that’s also what you did?
A. I would not confine them to having their own lawyer. It would be whatever lawyer they wish … or duty counsel.
Q. … you were specifically asked to illuminate the process by which the duty counsel was contacted. You provided this in specific answer to that question. In this additional statement you say that you ask if they have their own lawyer, or, ‘I will call duty counsel.’ And now is it your evidence that that’s not what you mean?
A. I would ask them if they wanted to choose a lawyer. Obviously, that was miswritten. It’s not if you have your own lawyer or not. It’s whatever lawyer you would choose.
The Rights to Counsel at the Detachment
[15] Constable Wing testified that at the detachment he again gave the rights to counsel by reading verbatim from a laminated sheet on the wall. His examination-in-chief continued:
MR. MEEHAN: Q. … did you ask him, understand?”
A. I did, and I don’t have a note that he even answered me at all. He was very agitated about his handcuffs and that seemed to be his focus. I do recall him holding his hands up to the camera and… which is right there.
Q. Did you ask him, “Do you wish to call a lawyer now?”
A. Yes.
Q. And what did he respond?
A. I don’t have a note that he responded at all.
Q. And you’ve already told the court that you did place a call to duty counsel?
A. Correct.
Q. Why did you place a call to duty counsel?
A. Because at the scene when I read him the rights to counsel the first time, he had indicated that he wanted duty counsel.
[16] The officer denied the appellant had ever mentioned having a lawyer he wished to contact although he could not remember his name. Had he wanted access to his cell phone to find a lawyer, it would have been returned to him.
[17] The officer acknowledged that there was a lawyers’ directory at the detachment for anyone who asked to look for their lawyer. He had no recollection of telling the appellant of any technique or facilities that he could use to assist him in finding his lawyer. He had told him he could choose a lawyer or if he had one he could contact them or attempt to contact them.
The Appellant’s Evidence
[18] The appellant testified he was 60 years old and worked as a quality systems auditor. While he lived in Brampton, he had purchased 80 acres just north of Mount Forest on Highway 6 as well as a small home, a three to four-minute walk from the pizza parlour.
[19] He had spent two days clearing brush from the 80 acres and was physically exhausted. Earlier in the day, he learned his cousin had died. As a result, he was quite out of sorts, angry, disappointed, depressed and frustrated.
[20] The appellant left the property about 9:30 pm and drove to Mount Forest where he was going to stay the night. He was originally going to go straight to his Mount Forest residence. Despite not being hungry, he stopped at the pizza restaurant because he liked wings. He also needed to talk to some people as there was no one at his residence. Upon arrival, he placed his order and was told it would take 20 to 25 minutes.
[21] The appellant admitted offering to give the waitress an extra $20 if she could get his order in 15 minutes.[^1] He testified the offer spoke to his generosity. He agreed parts of his conduct could be described as “a little bit of erratic,” acknowledging he told the cashier that another customer who had just left loved him and that he offered to pay for another customer’s meal. That customer told the appellant to leave him alone, appearing to be offended by his offer. This may have been because the appellant looked disheveled and dirty after working all day on the property. The appellant explained his conduct on the basis he was “beyond generous to a fault” and had an odd sense of humour.
[22] Mr. Dickson said he had nothing to drink before arriving at the pizza parlour parking lot. While waiting for his pizza and wings, he ate bagels and chips that were on the car’s floor and started to drink from a bottle of peppermint schnapps. It had been in the trunk until he got to the parlour. He took it out, sipped from it several times and put it in the cup holder. He went back and forth between his car and the parlour at least five times and consumed roughly seven ounces of schnapps before the officer arrived.
[23] In examination-in-chief, the appellant was asked what his plan was when he went to the pizza parlour. He explained in detail why he went to get food and what he wanted. He was not asked what would happen after he got the food nor did he address whether he would be driving to his residence after he got his food.
[24] In cross-examination, the following exchange occurred:
Q. …do you agree with me that you had accessible alcohol in a resalable container and you opened it up and drank it, knowing that you had to drive home.
A. Oh, no, I didn’t have to drive home. As I’ve said, I’m only a couple-minute walk from home; I did not have to drive home. Nor would I….
Q. Sorry, where was your home?
A. If I can clarify what I said also before, I’ve never heard of this charge before, but I fully understand about in Canada it’s called driving while intoxicated, DWI, I fully understand that and that would not take place.
Q. Sir, your plan was to get your food and get back in your car and drive wherever you were going?
A. No, no, you’re insinuating that. As I said, sir, I’ve been around for, driving, for 40-some years. I can count on my hand, on one hand the number of times I’ve had a drink with a client in a 30-year career.
Q. Why did you leave the keys in the ignition?
A. For the music.
Q. It wasn’t to re-start the car…
A. No…
Q. …once you got your food?
A. …I didn’t – no. Sir, I would not be drinking and driving, period. End of story. I would not be doing that.
THE COURT: The schnapps is in the centre console. So you’re getting into the car, sitting down, drinking, and then getting out again?
A. Just leaning in, usually. Like, I didn’t have to get in. It’s the console, you can just grab it, it’s not far. It’s not a big car or anything.
MR. MEEHAN: Q. What does leaning? Door open?
A: yes
THE COURT: Why are you drinking out of your car? Why aren’t you just drinking the peppermint schnapps in the restaurant or on the sidewalk?
A. Oh, well, ‘cause I wouldn’t take alcohol into the parlour. So, and then when I was going in and out, I would just put it back on the console.
MR. MEEHAN: Q. And this is Main Street; so you’re going to park overnight on Main Street?
A. I could leave my car there, yes.
Q. And get a ticket?
A. Oh, it wasn’t on Main, like, right on the road.
[25] Later, the appellant said that he might have spent the evening walking around downtown as he really had no desire to go home. While he did not know if he would have been permitted to leave his car in the parking lot, he did not think it would have been an issue. Had he received a parking ticket for doing so, he would not have had an issue with that.
[26] With regard to the rights to counsel, the appellant testified that when asked if he wanted to contact counsel he told the officer:
A. … “I do have somebody that I can call, but I’m not quite sure how to get a hold of him.”
Q. Okay, and what did [the officer] say?
A. Something to the effect of, “Who is it?” I said, “The name will slip me because I’m (sic) not someone that I’m personally acquainted with, but I know of,” and he says, “Well,” he says, “You have a right to duty counsel.” And I said, “Okay.” I’ve seen that in a hundred movies …
A. … Because I’m not talking about any lawyer. So I kind of specified; I do know one, but I wouldn’t know how to get a hold of him.
Q. Okay. And do you recall what the officer’s response to that was?
A. Something to the effect of, ‘Well, we can provide duty counsel.’ And I said that would be, you know, fine. I didn’t know any different, that I could say no or anything else. I don’t know, all I can go by is what I see in movies, and that’s what they always say is, ‘If you can’t afford,’ or, ‘You can’t provide,’ or something to that effect, ‘then a lawyer will be provided,’ I think. That’s all I’ve ever seen. That’s all I really knew. And I wasn’t thinking the, you know, absolute straightest, either.
[27] Since the appellant was never questioned about what he was asked or what occurred after he was read the rights at the detachment, the only evidence about that exchange came from the officer.
[28] The appellant testified he did not understand that if he did not have the name of a lawyer that he would be able to look up his own lawyer. The officer went right to duty counsel, telling him he could be provided with duty counsel. The appellant told the officer that was fine.
[29] Speaking to duty counsel was not the appellant’s preference, because he did not know who duty counsel was and had no “affiliation” with that lawyer. He would have preferred to speak to Mr. Dos Santos whose name had come up when the appellant was speaking to a friend whose son had been charged with drinking and driving. He knew it was a Toronto based lawyer with a “weird” name, it was not a Caucasian name, like Dickson or Wing or something, like, just normal.”
[30] The appellant testified he would have searched a directory. He was also pretty internet savvy so that given time, he would have located the name. He acknowledged he had not asked anyone to help him look up Mr. Dos Santos’ number and agreed with the trial judge’s question that it would be difficult for him to have found Mr. Dos Santos’ name on the internet. The appellant said he could try but whether he would succeed was a “whole different ball game.”
[31] After speaking to duty counsel, he had no concerns. He assumed that some other legal advice would have been provided if he had not been satisfied with duty counsel.
[32] In cross-examination, he agreed that his rights were read to him twice and he understood them both times. What he understood the rights meant was that if he could not provide a lawyer’s name that he would be given duty counsel.
[33] Before providing his breath samples at the detachment, the appellant told the breath technician that he had spoken to duty counsel and was satisfied with the conversation. He did not tell him he had counsel he wished to contact. The breath technician testified he heard a vague conversation between Constable Wing and the appellant about counsel of choice at the station but could not recall the details.
The Grounds of Appeal
The Care or Control Issue
Reasons for Judgment on Care or Control
[34] In finding the appellant was in care or control of the vehicle, the trial judge found:
Mr. Dickson admitted that he offered to buy a pizza for a stranger who entered the parlour. He also said something to the effect that he loved one of the patrons. His state of mind was upset and angry because of the passing of his cousin.
Although I sympathize with the passing of Mr. Dickson’s cousin, his behaviour at the pizza parlour, through his own evidence, can be characterized as capricious, impulsive and even erratic.
Mr. Dickson testified that he was not going to drive home after drinking the schnapps because he does not drink and drive. He was going to leave his car at the pizza joint.
If Mr. Dickson was such a conscientious driver as he states, he repeated numerous times, emphatically, that he never drinks and drives, I find it odd that he would stop at the pizza parlour three minutes from his house and start drinking, rather than leave the car at his house and walk back to the pizza parlour. Furthermore, there is absolutely no evidence that he put any thought into the parking situation. He did not determine if he could park his car overnight and did not turn his attention to any possible ticketing or towing of his vehicle.
This belies any notion of a plan. Furthermore, upon arrest, he told Constable Wing that he was not impaired. If he did not believe he was impaired why would he not drive home? [emphasis added]
Finally, as stated above, his behavior was capricious, impulsive and erratic.
I reject his evidence that he had a plan to walk home and leave his car behind and it does not raise a reasonable doubt.
I find that Mr. Dickson was going to drive home or at the very least there was a realistic risk he was going to do so. The facts in this case are similar to Cadieux. As Justice Rutherford stated, sitting as a Summary Conviction Appeal Court, in Cadieux:
8 A finding of "care and control" in these cases where, at the time of apprehension, the accused is not actually driving and may not even be behind the wheel often involves, if not conjecture, at least an assessment of what, in all the particular circumstances, may occur in the not too distant future.
- To reiterate my view: I reject Mr. Dickson's evidence and it does not raise a reasonable doubt. Mr. Dickson's behaviour was capricious and impulsive from the moment he left his property to go to the Pizza Parlour. He went to get food even though he wasn't hungry, he offered to buy pizza for a stranger and told someone in the store "Oh, she loves me" about a patron who just left. Instead of going home, leaving his car there, and walking back to the pizza parlour, he chose to stop three minutes from his house to buy pizza, wings and drink. He had no idea whether he could park in the spot overnight. He was upset and angry by the death of his cousin and his mood was affected by it. This is not the mindset or the actions of a man who had a plan. Moreover, by his own admission upon arrest he did not think he was impaired. Again, if he did not believe he was impaired why then would he leave his car behind? [emphasis added]
15 Leaving that aside, the keys were still in the vehicle. He would need to enter the vehicle after drinking to remove the keys from the vehicle if he wanted to walk home. The radio in his vehicle was on. This indicated an intentional course of conduct associated with a motor vehicle, causing a realistic risk, leaving aside his intention to walk home.
- Finally, the plan posited by Mr. Dickson about not driving was vague and hazy at best. As the Supreme Court stated in Boudreault, for the plan to have an impact on the court’s risk assessment it must be concrete and reliable.
Did the Trial Judge err in using the Appellant’s Parking Lot Statement in Assessing his Credibility?
The Positions of Counsel
[35] The appellant submitted the trial judge erred in relying on the appellant’s comment to the arresting officer in the course of being given his rights to counsel when rejecting his evidence. In his factum, the appellant suggested that it was not clear whether the utterance was before or after he was arrested. If it was before, the case law was clear that the statement could not be used for any reason other than the grounds for arrest. If it was after his arrest, he had indicated a desire to speak to counsel so that it was during the “hold-off’ period before he had an opportunity to contact counsel and could not be used.
[36] In his factum, the Crown wrote that if the trial judge erred in relying on the utterance, the error was harmless. When pressed during submissions, Mr. Meehan submitted that he could not articulate a legal basis upon which the trial judge could rely upon the statement.
[37] It appeared that the only outstanding issue in this area was whether the proviso applied and the draft reasons were prepared accordingly. On the last proofing before the release of the reasons, a potential flaw in the analysis emerged. The Court of Appeal had clearly indicated that detainee’s roadside statements before the rights to counsel were given were substantively inadmissible. The Supreme Court of Canada had made it clear that once a detainee indicates a desire to exercise the rights to counsel, the police must ‘hold off’ questioning the detainee.
[38] However, neither scenario applied here. The comment was made while the officer was providing the rights to counsel after the arrest and not during the ‘hold off’ period. Arguably, the impugned comment was not responsive to a question.
[39] Counsel were contacted, referred to R. v. Guenter, 2016 ONCA 572, at paras. 61-2 and R. v. Miller, 2018 ONCA 942, at para. 14, and asked for further submissions.
[40] The Crown submitted the statement was admissible relying on Guenter and Miller.
[41] The appellant noted he was unable to find a similar case where the issue was a statement made in the course of the rights to counsel. Mr. Halfyard noted the Supreme Court of Canada had found an additional question, “do you wish to say anything?” at the end of the rights violated the ‘hold off’ period as the question elicited the statement: R. v. G.T.D., 2018 SCC 7.
[42] Further, it would be a snare on the part of the state to give a detainee a constitutional right to be advised of the right to consult counsel without delay and let an utterance made responding to the officer’s question be used to impeach him when he said he wanted to speak to a lawyer before he could understand his jeopardy at the time of the utterance. Unlike the evidence in Guenter and Miller, Mr. Dickson’s comment was in direct response to the officer’s question. It was not a spontaneous utterance.
[43] Mr. Halfyard provided the following example of the unfairness in using the statement to impeach. When asked if he wished to speak to a lawyer, a detainee said he does but he does not know which lawyer to call. Could the Crown show that the detainee had used the same lawyer multiple times in the past and had provided the contact information previously?
[44] Further, the appellant submitted that in order to trigger the implementational component the detainee has to answer when asked if he wants to speak to counsel. The response cannot be turned from a shield into a sword.
[45] The appellant’s comment was part of his response to a direct question by the officer. As part of that response the utterance should not be an admissible exception to the holding-off period.
[46] Finally, the appellant submits the issue is where to draw the line. Mr. Halfyard submits the line cannot include a response in exercising his 10(b) rights. That should never be admissible.
Analysis
[47] Throughout the over 130 pages of oral submissions, neither counsel nor the trial judge mentioned the statement so that the use to which it could be put was never discussed. His Honour referenced the statement twice within five paragraphs, using the appellant’s assertion to the officer that he was not impaired in assessing his credibility.
[48] First, with regard to a statement made before a detainee has been given the rights to counsel the appellant relied upon R. v. Rivera, 2011 ONCA 225. Ms. Rivera was stopped at a RIDE program and given an ASD demand. During her 18 attempts to provide suitable samples she made numerous inconsistent statements, including falsely telling the officer she was employed by the O.P.P. She made no mention of having a panic attack. At trial, she testified that during her first 18 and an additional 3 failed attempts to provide a suitable sample she was undergoing a panic attack. In rejecting her evidence, the trial judge relied on her inconsistent statements while attempting to provide a suitable sample and that she had not told the officer at that time that she was experiencing a panic attack.
[49] In ordering a new trial, the Court of Appeal held:
[97] The Elias/Milne/Coutts line of authority establish that it would be unfair to give broad incriminatory scope to evidence obtained from a motorist who is detained at a roadside stop and whose s. 10(b) rights are suspended. As stated, at p. 298 O.R. of Coutts: "The unfairness arises because the motorist has been compelled, at the behest of the state, to provide evidence that would not have been obtained but for the motorist's participation in its construction and the evidence is being tendered for a purpose beyond that contemplated by s. 254(2) of the Code". See, also, R. v. Smith (1996), 1996 CanLII 1074 (ON CA), 28 O.R. (3d) 75, [1996] O.J. No. 372 (C.A.), at p. 87 O.R.
[107] In my view, the appellant's roadside statements were not admissible as part of the Crown's case for incrimination or impeachment purposes. I agree with Molloy J.'s conclusion in Morrison that roadside statements, whether made in direct response to an inquiry by an officer, or made in the context of the officer's overall inquiry while the motorist is detained, are not admissible for purposes of attacking the accused's credibility at a trial for failure or refusal to provide a breath sample. The admission of any roadside utterances as part of the Crown's case is forbidden other than on the basis of establishing grounds for the demand or the actus reus of the offence.
[50] A critical component of this analysis is that the evidence is obtained while the detainee’s 10(b) rights are abridged while he or she is detained for roadside screening and has not been arrested: R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 59. The limitation on the use of pre-rights to counsel evidence applies to evidence obtained from the compelled participation by the motorist in roadside tests and the police questioning about alcohol consumption: Orbanski, at para. 58
[51] Similarly, the law is clear that when a detainee has been given the rights to counsel and tells the officer he or she wants to exercise their right to counsel, that the officers must ‘hold off’ questioning the detainee: R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233; R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236.
[52] However, the utterance here does not clearly fall into either category. The appellant had been arrested. He was in the midst of being given his rights to counsel, was asked if he wanted to speak to counsel and said he did, adding that he was not impaired.
[53] The Court of Appeal has held that where a detainee has been informed of his or her rights and immediately makes a spontaneous and unprompted response there is no breach of s. 10(b): R. v. Miller, 2018 ONCA 942 at para. 14 and R. v. Guenter, 2016 ONCA 572. Both cases involve spontaneous comments by detainees after they were given their rights, asked if they wanted to speak to counsel and answered the question.
[54] In Guenter, before he was detained the appellant made statements that were admitted. He made further statements after he was detained and had been given his rights to counsel. The statements were not made in response to any question. Rather, as one of the officer’s testified, he was all over the place. He was rambling or possibly speaking to himself. That is not this case.
[55] The Court rejected the appellant’s argument that Rivera expanded Milne/Orbanski line of cases to protect all statements made “at the roadside,” all Brown J.A. referenced Moldaver J.A.’s (as he then was) comments in Milne that the case applied only to “the evidence obtained from compelled direct participation by the motorist in roadside tests authorized by s. 48(1) of the HTA, specifically designed to determine impairment or a blood-alcohol level exceeding 80 mg.” Further, Milne held “the limitation applies only to evidence obtained from the compelled direct participation by the motorist in roadside tests and in our case, police questioning about alcohol consumption.
[56] In Miller, the appellant was given his rights to counsel twice and declined to exercise his right. Later, he was being given his 10(b) rights for a third time, interrupted the officer and started to speak. The officer told him to wait until the rights were completed. The appellant said he wanted to speak to counsel and the officer completed reading the rights. As soon as the rights were given and without questioning or prompting he made a damaging admission to knowing the cocaine was in his truck. While the appellant testified he did not make the statement he was alleged to have made and had made another comment, the statement was admissible because it was not in response to a question and he understood his rights, having been given them three times. That is not this case.
[57] I agree with Mr. Halfyard that the question is where to draw the line but I disagree with his submission where that line should be. The prohibition does not relate to all “roadside statements.” The caselaw upon which the appellant relied dealt with pre-arrest statements or statements elicited by the officers during the ‘hold off’ period. This appellant had been arrested.
[58] The appellant was asked if he wanted to speak to a lawyer. He gave a direct affirmative response to the question that completed the standard exchange. For reasons best known to the appellant, he added, “I’m not impaired.” It was either not responsive to the question or perhaps an explanation for his decision. It certainly was not prompted by the police. I find the comment was not covered within the prohibited use period before his arrest nor excluded because it was evidence elicited during the “hold off” period.
[59] The two Court of Appeal cases dealt with unsolicited statements some unspecified but short period of time after the rights to counsel were completed. I find the same analysis applies to the comment. It was admissible in assessing his credibility. The weight to be attached to it was for the trial judge.
The Trial Judge’s s. 10(b) Findings and funnelling
[60] The trial judge identified three issues raised by the appellant:
i) the police need to provide the accused with tools so that he can find a possible lawyer,
ii) Constable Wing’s notes were porous with regard to the appellant’s responses to the questions at the end of the rights to counsel and the officer’s plain language explanation in the parking lot gave the appellant a binary choice, his lawyer or duty counsel. That would have contaminated the rights read at the detachment, and
iii) there was a further conversation at the detachment where the officer again gave the appellant a binary choice based on Constable Martin’s evidence.
[61] With regard to the last submission, His Honour found Constable Martin’s evidence of no assistance on the issue of a subsequent discussion at the detachment. He concluded there was no reliable evidence of a second conversation. Having read Constable Martin’s evidence, I agree.
[62] His Honour continued:
28 … I find that the second reading of the right to counsel, immediately prior to Mr. Dickson's excising his right to counsel, would have cured any defects in Constable Wing's plain language explanation of the right to counsel.
[63] With regard to the officer having steered or funnelled the appellant to duty counsel when he wanted his own counsel, the trial judge held:
29 In relation to the funneling issue, I follow Justice Woollcombe's reasoning in Mumtaz and Justice Kenkle's reasoning in Raaneyi and find no breach. Constable Wing read, not once, but twice, from the standard rights caution. Twice, he said to Mr. Dickson that he had the right to contact any lawyer he wished. Significantly, and uncontroverted by cross-examination, Constable Wing read the rights to counsel from the placard on the wall in the booking room area prior to Mr. Dickson's phone call with duty counsel.
30 Finally, I find that the police are under no obligation to provide resources to identify a possible lawyer.
[64] With regard to Constable Wing facilitating contact with counsel, the trial judge found:
33 The second right to counsel issue is more accurately characterized as an implementation one. Again, on either version of events, that of Mr. Dickson or that of Constable Wing, I find no breach. This issue turns on whether Constable Wing had a duty to facilitate contact of counsel of choice.
34 The crux of Mr. Dickson's evidence was that he knew a lawyer but did not know how to get a hold of him. He testified that the lawyer he was thinking about did not have a "Caucasian" or "Canadian" name and that he was from the Toronto region. He testified that he was internet savvy and he would have been able to find his counsel. I find that assertion doubtful. He did not know Mr. Dos Santos' name, and he did not know how to get a hold of him. He had no real parameters through which he could locate Mr. Dos Santos. Significantly he did not testify that any third party would have been able to facilitate the contact with the lawyer who did not have a "Caucasian" or "Canadian" name.
35 The police have an obligation to facilitate access to counsel of choice when a specific counsel is named. That is not the case on the evidence of Mr. Dickson. On his evidence he said he knew of a counsel and when Constable Wing asked who, he testified "the name will slip me because it's not someone that I am personally acquainted with but that I know of" at which point Constable Wing advised him of his right to speak to duty counsel again.
36 I digress to note that Constable Wing denies this exchange taking place and that Mr. Dickson's evidence was slightly different on this point further on in-chief. However, the first version of Mr. Dickson's evidence is consistent with his other testimony that he did not have a name of counsel or any contact information for him.
37 The police have a duty to facilitate access to counsel when a specific counsel is named, not when there is a vague expression about contacting a lawyer whose name the accused does not know nor can provide any guidance about how to get a hold of him or her.
38 Furthermore, any ambiguity about a potential issue regarding counsel of choice is laid to rest because Constable Wing specifically advised Mr. Dickson of his right to contact any counsel he wished immediately prior to his conversation with duty counsel. Also, Mr. Dickson testified that he was satisfied with the advice from duty counsel and had he not been he would have been provided with a chance to speak to someone else.
The Rights to Counsel
[65] The right to counsel is a “lifeline for detained persons” to obtain legal advice and guidance while detained and to avoid the detainee being entirely at the mercy of the police:” R. v. Rover, 2018 ONCA 745.
[66] In R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at para. 18, Lamer C.J. found s. 10(b) requires the police:
(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).
Informational and implementational components
[67] While the informational duty is “relatively straightforward”, there are “specific, narrowly defined circumstances” where additional information is required. If a detainee positively indicates that he or she does not understand his or her rights, the police cannot rely upon a mechanical recitation of the right and must facilitate the detainee’s understanding: R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 31.
[68] Where an accused challenges the admissibility of evidence relying on breaches of s. 10(b) of the Charter, the onus is on the applicant on a balance of probabilities.
[69] Whether there has been a s. 10(b) violation is a fact-specific determination in each case: R. v. Wilding (2007), 2007 ONCA 853, 229 C.C.C. (3d) 507 (S.C.C.)
[70] The implementational component is triggered by the detainee indicating that he or she understands and wishes to exercise their right to counsel: R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190. Once the detainee indicates an intention to exercise the rights, the officer is required to facilitate implementation: Willier, at para. 24. A measure of diligence is required of the detainee: R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3.
[71] Upon detention and being given the rights to counsel, a detainee has five choices:
i) contacting a specific lawyer whose name is known to the detainee by telling the officer the lawyer’s name and/or contact information or by being given access to a phone or the internet to contact counsel;
ii) locating a lawyer’s name and/or contact information whether or not they have a specific lawyer in mind by:
a. exercising their right to contact a third party to access counsel of choice[^2], or
b. exercising their right to locate a lawyer of their choice by accessing a lawyers’ directly, phone book, internet or elsewhere;
iii) speaking to duty counsel, or
iv) providing a clear and informed waiver of their right to consult with counsel.
[72] When a detainee indicates a desire to contact private counsel, in Ontario it is generally the officer who attempts to contact lawyer when a name and/or contact information is given. The same applies if the detainee wants to speak to duty counsel. The detainee is then given the phone to speak to counsel. It is only if the detainee gives the officer a name and/or contact information for a named lawyer or indicates that he or she wants to speak to duty counsel, that the officer can facilitate contact.
[73] But that is not the only means of contacting counsel. The detainee also has the right to find a lawyer whether they know the name of a lawyer or not. That can be done by contacting a relative or friend to get the name and/or contact information or looking in a lawyers’ directory, lists of lawyers or on the internet.
[74] In Ontario, at times officers quickly default to duty counsel by placing a call to duty counsel or directing the detainee to duty counsel. Duty counsel are on call 24-7 so a response is guaranteed and generally in short order. It’s easier for the officers. However, it cannot be ignored that detainees also have the right to a reasonable time within which to find a lawyer on their own.
[75] There are conflicting decisions on the implementational duties s. 10(b) imposes on police officers. Some focus on the most common situation in Ontario where the police are given the name and/or contact information of private counsel and take on the task of contacting that lawyer but are unsuccessful in doing so: R. v. Maciel, 2016 ONCJ 563; R. v. Doobay, 2019 ONSC 7272; R. v. O’Shea, 2019 ONSC 1514; R. v. Jhite, 2021 ONSC 3036. These cases suggest steps the officers should take to be Charter-compliant while acknowledging that each case is fact-specific.
[76] Others cases with the same scenario (lawyers name given but the officer unable to contact the named counsel) find that absent a request by the detainee to personally look for a lawyer, there is no requirement to offer the detainee the option of finding their own lawyer by accessing a phone book, lawyers’ directory or the internet: R. v. Wijesuriya, 2020 ONSC 253, R. v. Persaud, 2020 ONSC 3413; R. v. Ruscica, 2019 ONSC 2442.
[77] In Wijesuriya, the accused gave the police the name and number of counsel. The officers left messages but counsel did not call back. The officer asked her if she wanted to speak to duty counsel so that she could receive some sort of advice. The officer had no recollection of her responses but put her in contact with duty counsel. On Summary Conviction Appeal (SCA), Ricchetti J. rejected the notion that the police have an obligation to do what the detainee would have done and found no breach.
[78] In Persaud, the accused said he wanted to speak to counsel later. The officer asked if he had a specific lawyer in mind and was told that he did not and wanted to speak to duty counsel. He testified at trial that he thought he had a binary choice and was not permitted to find his own lawyer. On SCA, Akhtar J. rejected that there was an enhanced duty of the police where they undertook to contact counsel.
[79] In Ruscica, the accused said he wanted to speak to a lawyer, if he had a specific lawyer or wanted to speak to duty counsel. He said he did not have a specific lawyer and wanted to call duty counsel.
[80] The issue of what police officers are required to do when a detainee does not have counsel was raised in a case relied upon by the Crown, R. v. Ghotra, 2020 ONCA 373. At trial, it was suggested the police were required to provide detainees with access to the internet, phone books etc. before speaking to duty counsel. There was also a period of close to one hour after Ghotra spoke to duty counsel when he was left alone in an interview room. At trial, Ghotra testified that duty counsel gave him legal advice and told him he could find his own counsel. It was argued that he should have been given access to other sources from which to select counsel during that time.
[81] In the trial judgment (2016 ONSC 5675), I found that in the circumstances of that case, the police were not required to provide that information. On appeal (2020 ONCA 373), the Court of Appeal held:
41 The appellant did not request access to a directory or phone book in which to search for counsel. In the circumstances, as he had already spoken to duty counsel and understood that he was free to find a lawyer of his choosing, I am not persuaded that the police breached the appellant's rights in not offering him a directory.
[82] The majority dismissed the appeal on an entrapment issue (2021 SCC 12). With a dissent on that issue, Mr. Ghotra unsuccessfully appealed to the Supreme Court of Canada. While he applied for leave to appeal the s. 10(b) issue, leave was refused ([2020] S.C.C.A. No. 187).
The Positions of Counsel
[83] The appellant raises two issues. First, he contends Constable Wing’s summary of the rights to counsel steered him to duty counsel instead of providing him with the option of locating a private lawyer on his own. While Constable Wing may have read the rights twice, when he attempted to comply with his implementational duties, he gave the appellant a binary choice – his own lawyer or duty counsel. When given an opportunity to expand on his inadequate notes about the rights, the officer re-iterated the binary choice. In the result, the officer steered the appellant to duty counsel and failed in his implementational obligations, breaching the appellant’s s. 10(b) rights.
[84] Further, to the extent the trial judge found the reading of the rights from the wall sign in the detachment cured any defect with the summary of the rights, the appellant submits that His Honour’s finding reflects a palpable and overriding error. It is impossible to view the second recitation as curing any defects when the officer had neither notes nor any recollection of the appellant answering at all when asked if he understood and whether he wanted to speak to a lawyer at the detachment. The appellant contends a less than fulsome account of the second recitation and answers to critical questions posed while he was upset about how tight his handcuffs were cannot cure any defect with the first non-Charter compliant recitation. This is particularly so when the officer said the reason he called duty counsel from the detachment was the appellant’s answer after being given the defective rights in the parking lot.
[85] While the appellant testified that he understood the rights both times they were read, it was clear that his understanding was there was a binary choice – his counsel or duty counsel. He did not understand that he could attempt to find counsel on his own. Had he known of his options; he would have tried to locate Mr. Dos Santos’ contact information and called him.
[86] On appeal, he contends that on the facts of this case where he told the officer about a private counsel, he should have been offered access to the internet or other resources that would have at least given the appellant the opportunity to locate counsel’s contact information.
[87] Finally, as a result of the breach, the breath readings should be excluded under s. 24(2) of the Charter and an acquittal entered.
[88] The Crown submits the officer’s evidence cannot be taken out of context. The appellant testified he understood his rights to counsel both times they were provided. He was told twice that he could contact any lawyer and made no requests for assistance in finding Mr. Dos Santos. Indeed, he knew at least one person who knew counsel’s name and never asked to contact that person as he would be entitled to do. Any defect with the rights to counsel in the parking lot was cured by the reading at the detachment. The trial judge’s analysis reveals no errors. The Crown did not raise the proviso in relation to this issue.
Analysis
[89] I agree with Mr. Halfyard that the 10(b) issues are inter-related with common features and can be examined together.
[90] As the s. 10(b) caselaw makes clear, the determination of whether there has been a s. 10(b) breach is fact-specific. This case does not fit nicely into the category of cases just reviewed. The appellant had not given the officer a specific name to contact so Constable Wing could not undertake to contact named private counsel for Mr. Dickson.
[91] While the officer said the appellant never mentioned the unnamed lawyer, there was evidence the appellant told him there was a lawyer he could call, he had heard the name but could not recall it and was not quite sure how to get a hold of him. If that comment was made the facts are distinguishable from the above referenced cases. If it was made, the 60 year old appellant had just been arrested and while standing in a restaurant parking lot or seated in the rear of a police car was told that he could call a lawyer. The officer asked the lawyer’s name and was told the name slipped the appellant’s mind; he was not personally acquainted with him, knew of him but was not quite sure how to get a hold of him. The officer immediately said the appellant had a right to duty counsel.
[92] Whether there was a s. 10(b) breach would have to be determined in all of the circumstances, including the events at the detachment. It would have to be determined whether the officer had complied with the informational and implementational components of s. 10 (b) of the Charter.
[93] In all the circumstances, I am persuaded the trial judge erred in his s. 10(b) analysis for the following reasons. First, in Ontario officers providing the standard rights to counsel are not required in every case to include that the detainee can have access to lawyer directories, lists of lawyers or the internet to locate a lawyer.
[94] The trial judge concluded at para. 30 that “the police are under no obligation to provide resources to identify a possible lawyer” referencing para. 47 of R. v. Ruscica, 2019 ONSC 2442. Later in the reasons, His Honour twice held that “police have an obligation to facilitate counsel of choice when a specific counsel is named” but not where there is vague expression about contacting a lawyer whose name was not known.
[95] While it is not clear that single sentence in paragraph 30 only deals with what must be included in the standard rights to counsel, given the reference to Ruscica it appears that it relates to the standard rights only. If that is correct, I agree with the conclusion .
[96] The trial judge then twice indicates that there is an obligation where a specific counsel is named but that did not occur on these facts. If par. 30 and/or the later findings are blanket statements that officers are not obligated to provide resources or advise detainees of the resources available at the detachment or station unless the detainee can provide the name of a lawyer, I disagree based on the caselaw referenced earlier.
[97] Ruscica also includes comments with regard to the content of the informational component depending on the detainee’s answers and other comments after the standard rights to counsel. Those comments can trigger the duty to provide that information. McKelvey J. held:
46 In my view, Justice Fragomeni's decision in the Zoghaib case together with the subsequent Court of Appeal Endorsement dismissing the appeal does support a conclusion that advice regarding resources available to identify and connect with private counsel is not routinely required. On the contrary, this duty only arises where individual circumstances require it in order to comply with the implementational responsibilities under s. 10(b). [emphasis added]
[98] Earlier, the SCA judge held:
38 I agree with the reasoning of the New Brunswick summary conviction appeal court decision in R. v. Caissie. Circumstances matter. There may well be cases based on what an accused says to the police which make it mandatory for the police to offer resources such as a phone book to assist someone who is looking for private counsel. [emphasis added]
[99] There are circumstances where the duty arises regardless of whether the detainee can provide a name for counsel. For example, a detainee has the right to call a friend to find a lawyer. In other circumstances a duty arises to tell the detainee of the resources available to locate a lawyer of their choice even when they do not have the name of a lawyer in mind.
[100] Second, His Honour relied on two further judgements in concluding Constable Wing was not required to provide further information to the appellant. Both are distinguishable. In Mumtaz, the detainee asked to call a friend who was an OPP officer. While Mumtaz did not tell the arresting officer that he wanted to speak to the other officer to get the name of a lawyer, his trial testimony was that that was the reason he wanted to speak to his friend.
[101] The officer told Mumtaz that if he did not have his own lawyer he could call duty counsel. Woollcombe J. found that there was no duty to tell Mumtaz that he could look for his own lawyer. That case did not involve thee detainee speaking of a lawyer whose name he did not recall.
[102] In Raaney, the detainee was asked if he wanted to call a lawyer and said he did not have one. The officer asked if he would like to speak to a free lawyer the government provided. Later, at the detachment he was given the formal rights to counsel that included he could contact any lawyer. Kenkel J. rejected the defence argument that the officer was required to include in the standard rights to counsel that the detainee had the right to access the internet, phone book or his cell phone to contact a lawyer in that context. His Honour noted that depending on what the detainee said the officer might be required to provide more information that was given in the standard caution: at para. 19. Again, there was no indication the detainee had a lawyer he wished to contact but did not remember his name.
[103] With respect, I am unable to conclude either case supports the trial judge’s conclusion regarding the rights to counsel with regards to this case.
[104] Detainees have the right to attempt to search for a lawyer of their choice whether they have a name in mind or not. It is not a binary choice. While there may be the benefits to officers in having the detainee contact duty counsel, it cannot become a binary choice. That applies in drinking and driving cases, despite the Criminal Code provision of the two hour evidentiary presumption in s. 320.31(4): R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, at p. 275.
[105] It is not necessary on these facts to resolve the conflicting authorities on the implementational components where the detainee provides the name of a lawyer who cannot be contacted. Here, there was evidence the appellant told the officer about a lawyer whose name he could not recall and was given no information about the resources that were available at the detachment so that he would have the opportunity to locate the lawyer. Instead, the officer directed the discussion back to the appellant’s right to speak to duty counsel.
[106] Third, absent unusual circumstances, police are required to facilitate access to a lawyer immediately by providing the detainee with an opportunity to consult with counsel. In finding no Charter breach, the trial judge concluded it was doubtful the appellant could have located Mr. Dos Santos’ name on the internet. That may be so. But the caselaw establishes that the detainee is to be given a reasonable opportunity to contact counsel, not a guaranteed or probable route to contacting counsel. While it may be the unlikelihood of contacting counsel might be a relevant fact on a s. 24(2) analysis, it is not relevant in determining if there was a s. 10(b) breach.
[107] Finally, another basis upon which the trial judge concluded there was no breach was the officer having read the appellant the rights at the detachment cured any defects in the officer’s plain language explanation of the rights. I agree with Mr. Halfyard that the trial judge’s finding that the second recitation of the rights “cured” any defect with the first reflects a palpable and overriding error.
[108] As Stribopolous J. held in R. v. Jhite, 2021 ONSC 3036, at para. 56:
56 To qualify as a "palpable and overriding error," an error must be "plainly seen": Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 6. And it must also be "shown to have affected the result": H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 55
[109] His Honour referenced the rights being read at the detachment four times in the sixteen paragraphs dealing with the rights. Clearly the finding affected the result.
[110] There was no dispute that the officer read the rights from a placard on the detachment wall including that the appellant had the right to telephone any lawyer he wished. There are several problems with that evidence that plainly reveal the error in finding any defects were cured.
[111] First, the officer had neither notes nor recollection of the appellant answering when the officer asked if he understood or wanted to contact counsel. Similarly, he had no note of the appellant’s answers to those questions while at the restaurant. No notes meant the detainee chose duty counsel. However, that was not the officer’s explanation for calling duty counsel from the detachment. He called duty counsel, not because the appellant must have said he wanted to speak to duty counsel but because that is what he must have said in the parking lot.
[112] Second, the officer admitted that when he read the rights off of the placard, the appellant was agitated because the handcuffs were too tight. The appellant was “very agitated about the handcuffs and that seemed to be his focus.”
[113] The trial judge never made a finding what occurred in the parking lot given the conflicts within Constable Wing’s evidence and between his evidence and the appellant’s. Nor was there a finding that if the plain language explanation was given there was a breach. While the trial judge never found the explanation of the rights provided in the parking lot established a breach, I tend to agree with Mr. Halfyard that it appears he did without providing details.
[114] If the parking lot recitation of the rights resulted in an ambiguous answer and the rights were improperly explained by the officer as a binary choice, it is most difficult to see how reading the same words that precipitated an ambiguous response could cure the problem when the officer’s explanation of the rights was defective. It had been explained to the appellant as a binary choice.
[115] The first time further submissions were requested to deal with this issue, Mr. Meehan referred to two “fresh start” cases where appellate courts discussed cases where initial Charter breaches did not taint subsequent statements or the admissibility of other evidence where the officers gave the rights to counsel a second time and permitted access to counsel before the evidence was obtained: R. v. Manchulenko, 2013 ONCA 543, at paras. 67-69 and R. v. Wittwer, 2008 SCC 33, at paras. 3-4.
[116] While those cases identify the availability of a “fresh start,” it is not automatic: R. v. Plaha (2004), 188 C.C.C. (3d) 280 (Ont.C.A.). The cases upon which the Crown relied are consistent with the Court of Appeal’s approach in Plaha. All the circumstances must be considered and the second rights to counsel cannot be viewed in isolation.
[117] In Plaha, the Court found the analysis had to include an examination of the temporal, contextual and causal connection. While not determinative, other factor included whether it was the same officer or officers and whether at the time the second rights were provided if the officer attempted to severe the second reading by telling the detainee to disregard earlier comments.
[118] After reviewing the “fresh start” caselaw, I find the authorities support the appellant’s position that the detachment reading could not cure any defect in the plain language explanation of the rights in the parking lot. Whether based on the palpable or overriding error criteria noted earlier or a misapplication of the law as occurred in Plaha, the finding the defective explanation was cured is untenable.
[119] The “fresh start” cases refer to there being a sufficient break in time and basically everything starting over. Neither applies here. First, the temporal link is very short. Second, it is the same officer who gave the defective explanation for what the rights meant. Third, there was no effort to severe the defective rights if Constable Wing realized his explanation was defective. Fourth, and of greatest importance, it cannot be a fresh start when the only reason the officer called duty counsel was the appellant’s answer during the parking lot exchange. That creates a causal link, not severance. There is a clear connection between the two incidents. With respect, it is neither a fresh start nor a cure.
[120] The respondent correctly notes that in cross-examination the appellant said he understood the rights both times they were given. However, that answer cannot be taken out of context. First, he was not asked at that time what he understood the rights to mean. Second, his evidence elsewhere in his testimony was consistent that he did not understand he had the right to look for a lawyer. In part, his understanding was he had a binary choice was based on the officer’s comments and Constable Wing going right to duty counsel. The trial judge never rejected the appellant’s evidence nor found that he understood he could look for a lawyer.
[121] Having found errors in the trial judge’s s. 10(b) analysis, the next step was to determine whether Mr. Halfyard was correct that if there was a s. 10(b) breach the evidence should be excluded.
[122] The problem with the analysis presented in the appellant’s oral submissions and factum is that the trial judge made no findings of fact as to what occurred when the officer and the appellant spoke about the rights to counsel. The appellant said he mentioned the lawyer while the officer said that never happened.
[123] Counsel were contacted and given the opportunity to make further oral submissions or file written arguments with regard to if there was a finding the trial judge’s s. 10(b) analysis reflected errors, how it would be possible to determine if there was a s. 10(b) breach and is so how could a s. 24(2) analysis be completed when there were no findings of fact. They chose to file written submissions with specific filing dates over roughly six weeks.
[124] Mr. Halfyard argued that the officer’s failure to prepare accurate, detailed and comprehensive notes as mandated by the Supreme Court of Canada in Woods v. Schaeffer, 2013 SCC 71, at para. 67, should result in an adverse credibility finding against the officer. Further, while not expressly stated, the trial judge must have found the roadside rights were defective since he found the detachment recitation cured any defect.
[125] The appellant submitted that if this Court was unable to conclude what the trial judge found in relation to the appellant’s and the officer’s evidence, the result would be a new trial as appellate review would be frustrated, citing R. v. Vuradin, 2013 SCC 38, at paras. 9-15. If the disposition depends upon contested facts and the trial judge did not make the necessary findings to resolve the contest, an appellate court is unlikely to be in a position to do so, citing R. v. Pawliivsky, 2020 SKCA 75 at para. 25 and R. v. Dudhi, 2019 ONCA 665, at para. 88.
[126] Mr. Meehan reiterated his arguments that there was no breach stressing any problem with the parking lot explanation of the rights was cured when the rights were read at the detachment. Any contamination was removed and cited the two appellate authorities noted earlier.
[127] Mr. Meehan agreed that this court’s ability to independently assess whether or not there was a Charter breach and complete a s. 24(2) analysis are somewhat restricted by the limited findings of fact. He concedes the evidence was “obtained in a manner that, while hardly the product of an ideal investigation, was still ultimately in conformity with the standards required by the Charter.” He did not invoke the proviso.
[128] I find there must be a new trial for the following reasons. First, while I had initially focused on the s. 24(2) analysis, without any findings of fact I cannot proceed on the basis the appellant mentioned the lawyer to Constable Wing. It would be wrong to assume a Charter breach when the trial judge never found the comments were made.
[129] With regard to Mr. Halfyard’s submission that the officer’s evidence should be rejected, he contended the poor quality of the officer’s evidence should lead to a credibility finding against him, inferentially leaving only the appellant’s evidence. I am unable to make that finding of fact.
[130] There were very significant differences in the accounts of the officer and the appellant regarding the rights. That the officer’s notes were horrible was not contested. He does not read as an impressive witness. I agree with Mr. Meehan that the evidence was hardly the product of an ideal investigation. However, the appellant’s evidence was not without its challenges as the trial judge noted in regard to an inconsistency and the trial judge specifically rejected his evidence about having a plan.
[131] Further, when two witnesses give contradictory evidence, it is not necessarily choosing all of one witness’ evidence over the other. It may be part of one witness’ account might by accepted while others were rejected. For example, if the appellant made the comments to the officer whether Mr. Dickson was told that he could search for a lawyer might impact on the analysis. They are findings I am unable to make from the transcript.
[132] I am nor able to conduct a credibility analysis about evidence I did not hear or see. Depending on all of the findings of fact, when a detainee indicates he or she knows of a lawyer but cannot recall their name although they have some unspecific indicators regarding the name when they were given a binary choice and not told of the resources available to look for counsel, there would be a breach of the informational and/or implementational components. The officer would not have facilitated contact with counsel.
[133] Finally, while the trial judge considered other factors in finding that there was no breach including the appellant did not testify a third party would have been able to facilitate contact with Mr. Dos Santos and being satisfied with duty counsel’s advice and had he not been he would have been given a chance to talk to someone else, the above noted reasons played a significant role in the analysis. With regard to calling someone to get the contact information, if he was told it was a binary choice, there would be no reason to consider calling someone to assist.
[134] Further, having identified errors in the trial judge’s s. 10(b) analysis, I cannot apply the proviso and find that any error was harmless when the Crown has not argued the proviso should apply. R. v. P.G., 2017 ONCA 361.
Conclusion
[135] The appeal is allowed, the conviction quashed and a new trial ordered.
[136] Mr. Dickson is ordered to appear in the Guelph Ontario Court of Justice on Tuesday, October 5, 2021 at 9:00 a.m. to set a new trial date.
Durno J.
Released: September 24, 2021
COURT FILE NO.: 29/19
DATE: 20210924
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
WARREN DICKSON
Appellant
REASONS FOR JUDGMENT
Durno J.
Released: September 24, 2021
[^1]: The waitress was subpoenaed but did not attend the trial.
[^2]: R. v. Blake, 2015 ONCA 684, at para. 14; R. v. Pileggi, 2021 ONCA 4 at para. 86