Court File and Parties
COURT FILE NO.: CR-22-10000026-00AP DATE: 20231011
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING Respondent – and – CAN IMER Appellant
COUNSEL: Joseph Hanna, for the Respondent Adam Little, for the Appellant
HEARD: May 31, 2023 and in writing
PINTO J.
Reasons for Decision (Summary Conviction Appeal)
Overview
[1] The appellant, Can Imer, appeals from the July 26, 2022 decision of Newton-Smith J. of the Ontario Court of Justice (OCJ). In the trial below, the Crown called three officers who testified on a blended trial/Charter voir dire. The trial judge found no breaches of s. 10(b) of the Charter, acquitted Mr. Imer of the impaired driving charge, but convicted him of “80 and over.”
[2] The appellant now appeals against his conviction and advances three grounds of appeal:
The trial judge erred in concluding that the officers’ failure to immediately ask the appellant whether he would like to contact counsel was not a breach of s.10(b);
The trial judge erred in concluding that the officers satisfied their implementational obligations under s. 10(b); and
The appellant’s breath samples should have been excluded under s. 24(2).
[3] For the reasons that follow, I find that the appeal should be dismissed.
Facts
[4] The parties agree on the facts.
[5] On June 24, 2021, at approximately 1:00 a.m., the appellant’s car collided with an ambulance. There is no evidence as to how the collision occurred and there were no injuries. At 1:12 a.m., Officer Almond and Officer Burks arrived on the scene. Shortly after, Officer Almond made an Approved Screening Device (“ASD”) demand, which resulted in the appellant blowing a “fail.” After the appellant was arrested, Officer Almond began to read the appellant his “right to counsel” from the back of her memo book.
[6] While Officer Almond was reading the right to counsel, the appellant interrupted several times, asking the officer, in effect, not to arrest him. When the officer eventually asked whether he understood his rights, the appellant responded, “[i]f you care about my future, you won’t do this.” Officer Almond tried several more times to confirm that the appellant understood, at which point Officer Burks interjected, “she’s asking if you understand.” At that point, the appellant nodded, prompting Officer Almond to state, “you’re nodding, so I’m assuming that’s a yes”, to which the appellant responded, “I do.”
[7] After reading the appellant his right to counsel, Officer Almond did not ask the appellant whether he wished to contact a lawyer, or ask the appellant the question: “do you wish to call a lawyer now?”
[8] During the ride to the police station, the appellant asked to speak with a lawyer, Adam Weisberg. After the appellant was paraded at the station, one of the officers called Adam Weisberg’s office at 2:36 a.m. Shortly before 3:17 a.m., Officer Almond informed the appellant that his lawyer had not called back, and then called duty counsel. The appellant spoke with duty counsel until 3:28 a.m. Neither officer could recall whether there was a conversation with the appellant about duty counsel, but they testified that it was standard practice when counsel did not call back to ask the arrestee whether they wanted to speak to duty counsel.
[9] After speaking to duty counsel, the appellant entered the breath room where the following conversation took place between the appellant and Officer Sanders, who was the Qualified Technician (“QT”):
QT: When the officers read you your rights to counsel and cautioned you, you indicated there was a particular lawyer you wished to speak to. They have called the lawyer’s number and they checked the internet and there’s only one way to get a hold of this gentleman. There’s no messages or anything that refer to another number, and they’ve left a message about an hour ago. Keeping in mind it’s Thursday morning at 3:30 a.m. approximately, and nobody’s called back, in the interim, you’ve had an opportunity to speak with duty counsel, the free lawyer, on the telephone, and you’ve indicated you understand after that conversation that you have to give the breath samples, is that all correct, sir?
Imer: What choice do I have, sir?
QT: Well, you don’t have any choice, sir. By law you have to do two tests.
Imer: Okay. There it is.
[10] The QT subsequently had the appellant provide two samples of his breath. The first was at 3:36 a.m., which measured 135 mg%. The second was at 3:58 a.m. and measured 130 mg%.
[11] Two affidavits from Samiyyah Ganga and Maya Sengupta-Murray, who were both associates at Weisberg Law in June 2021, were filed at trial which say inter alia:
- That on the date of the arrest, if someone called the firm and no one answered, they would hear a message that stated “… To speak to Adam Weisberg, press ‘1’; to speak to Samiyyah Ganga, press ‘2’; to speak to Maya Sengupta-[Murray], press ‘3’; or press ‘0’ for general inquiries or urgent matters. Thank you.”
- That pressing 1-3 would direct the call to the desk phone and cellphone of the respective lawyer, and if the lawyer did not answer, the caller could leave a message. If the caller left a voicemail message, a recording of that message would be sent more or less immediately as an attachment to an email to the lawyer’s email address.
- That, if the caller pressed ‘0’, the call was redirected to the desk and cellphones of all 3 lawyers. If no one answered, the caller could leave a message for all 3 lawyers. That message would then be sent more or less immediately as an attachment to an email to all 3 lawyers.
- That both Samiyyah Ganga and Maya Sengupta-Murray were required to answer calls for legal advice at all times. If someone had called either their number or the urgent number late at night, they would have been woken by the cellphone ringing, and would have answered. They would then have either provided legal advice to the caller, if that is what the caller wanted, or attempted to get in contact with Mr. Weisberg;
- That neither lawyer received a call on June 24, 2021.
The Trial Decision
[12] After reviewing the facts, the trial judge described the Defence’s description of the violations of Mr. Imer’s 10(b) rights as threefold:
Firstly, when Officer Almond read Mr. Imer his rights to counsel roadside upon arrest, she failed to ask him, “Do you want to call a lawyer now?” Secondly, that by failing to do more than leave one message for Mr. Imer’s counsel of choice, Adam Weisberg, the police did not provide Mr. Imer with a reasonable opportunity to consult with his counsel of choice. Thirdly, that when no callback was received from Mr. Imer’s counsel of choice, Mr. Imer was funneled to duty counsel.
[13] On the first point, the trial judge found:
There is no evidence that Officer Almond asked Mr. Imer immediately after he was arrested, and when she was first reading him his rights to counsel, “Do you wish to call a lawyer now?”
…by the time that they arrived at the station, both officers were aware that Mr. Imer wished to speak with counsel Adam Weisberg. Clearly Mr. Imer understood his rights to counsel because at some point after he was placed in the cruiser, and prior to their arrival at the station, he had invoked the right and named his counsel of choice.
…the officers attempted to contact [Adam Weisberg]. If the failure of Officer Almond to immediately ask the question, “Do you want to call a lawyer now?”, was a violation of Mr. Imer’s section 10(b) rights, it was fleeting and had been rectified before such time as the right could feasibly be implemented.
[14] On the alleged failure to take further steps after leaving once voicemail message, the trial judge found:
Neither Officer Burks nor Officer Almond had a specific recollection of contacting Mr. Weisberg’s office, although it is clear that one of them did. … There was no evidence before me to suggest that there were any alternative numbers for Mr. Weisberg other than the one that was called. A message was left for Mr. Weisberg. [Emphasis added.]
In considering all of the evidence before me, it seems most likely that the officer who called the number for Weisberg Law listened to the voicemail message and chose the option of pressing one to speak to Mr. Weisberg. Had the officer waited until the end of the message and chosen option zero, for general inquiries or urgent matters, or option two or three for an associate of Mr. Weisberg, then the call would have been directed to someone who would, at least in theory, have responded despite the early morning hour. Whichever option the caller chose, a message was left that was not responded to. [Emphasis added.]
This was a drinking and driving situation where time was of the essence. The officers waited close to an hour. It was the middle of the night. If Mr. Weisberg had not called back by 3:15 a.m., there would have been no reason to think that the call would be returned before the next morning.
Mr. Imer was offered the opportunity to speak to duty counsel and he took it. He did not express dissatisfaction with the advice he received, nor did he make any further request to speak with counsel. This is not a situation where Mr. Imer declined the offer of duty counsel and was taken for breath tests without having spoken with counsel, as was the case in R. v. O’Shea, 2019 ONSC 1514. Nor is it a case like R. v. Traicheff, 2010 ONCA 851 where the police simply called duty counsel without first speaking with the accused.
I am not prepared to find that in these circumstances the officers were constitutionally obligated to take further steps. By the time that Mr. Imer was taken for the breath tests, he had consulted with counsel and expressed no dissatisfaction or desire to contact another counsel. I am not satisfied that his Section 10(b) rights were breached in the circumstances.
[15] On the third point, about whether the appellant was funneled to duty counsel:
There is nothing in the circumstances of this case, on the evidence before me, to suggest that Mr. Imer meant anything other than that he understood that he was legally obligated to provide breath samples. There is no evidentiary basis for the assertion that Mr. Imer was funneled to duty counsel.
[16] On the trial of the actual charges, the trial judge found insufficient evidence of impairment to ground a conviction for impaired driving. However, the appellant was convicted on the charge of blowing over 80.
The Appellant’s position on the alleged Charter breach
(a) Informational component to right to counsel
[17] The appellant submits that the informational component of the right to counsel under s. 10(b) was violated by the officers’ failure to ask the appellant immediately after he was read his rights to counsel whether he would like to contact counsel, or whether he would like to contact counsel now (“the Question”).
[18] The applicant submits that asking the Question fills in the gap between the general right to retain and instruct counsel, and the immediate entitlement to speak to a lawyer.
[19] The applicant relies on the comments of Doherty J.A. in R. v. Devries, 2009 ONCA 477, 95 O.R. (3d) 721, at para. 29 (“Devries”): “[t]he use of the word “now” conveys the requisite immediacy of the right to speak with a lawyer.” The applicant submits that, to the extent that R. v. Antoninas, 2014 ONSC 4220, 323 C.R.R. (2d) 1 (“Antoninas”), a decision of Durno J., stands for the proposition that the Question is not part of the information component, Antoninas was wrongly decided and at odds with Devries.
[20] The appellant argues that, with respect to the informational component of the s. 10(b) right to counsel, it is unclear what the trial judge concluded. On the one hand, the trial judge stated:
The question, “Do you wish to call a lawyer now?”, is asked so that officers can implement the detainees’ [s]ection 10 rights if invoked. As such, it is obviously an essential part of the rights to counsel. Officer Almond should have asked the question when she initially read Mr. Imer his rights to counsel.
[21] On the other hand, the trial judge went on to state, “if the failure…was a violation of [the Appellant’s] [s]ection 10(b) rights, it was fleeting and had been rectified before such time as the right could feasibly be implemented.”
[22] Ultimately, the appellant’s position is that, if the trial judge held that a breach of the informational component occurred but was not sufficiently serious on its own to warrant excluding the evidence, the appellant agrees. However, by failing to ask the Question, a breach of the informational component of the s. 10(b) right to counsel occurred, and this breach should be considered alongside the others. 10(b) breach at the s. 24(2) stage of the Charter analysis.
(b) Implementational component to right to counsel
[23] The appellant submits that the trial judge erred in concluding that the officers satisfied their implementational obligations under s. 10(b) of the Charter. Here, the appellant argues that the failure of the police to take additional steps to contact Mr. Weisberg or to inform the appellant of his right to contact alternative counsel was a clear violation of his right to counsel of choice.
[24] The appellant submits that this was a case where the police assumed the responsibility of making first contact rather than providing the detainee with direct access to a phone or internet connection. The law in this area requires that the police must be taken to have “assumed the obligation to pursue [the detainee’s] constitutional right to [access counsel] as diligently as [the detainee] would have”: R. v. Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, at para. 43 (“Jarrett”), quoting R. v. O’Shea, 2019 ONSC 1514, 372 C.C.C. (3d) 352, at para. 42 (“O'Shea”). See also R. v. Doobay, 2019 ONSC 7272, 61 M.V.R. (7th) 225, at paras. 29-33; R. v. Jhite, 2021 ONSC 3036, 405 C.C.C. (3d) 381, at para. 29-31 (“Jhite”); and R. v. Edwards, 2022 ONSC 3684, at para. 74.
[25] The appellant complains that beyond calling Mr. Weisberg’s office and leaving one message on Mr. Weisberg’s voicemail, the officers did nothing. The police did not try calling Mr. Weisberg’s office again and pressing a number for another lawyer, or pressing “0” – the number for “general inquiries or urgent matters” – which would have directed the call to the telephones of all 3 lawyers (Weisberg, Ganga, and Sengupta-Murray), with any voicemail left being forwarded to all the lawyers’ emails.
[26] Further, the appellant contends that, when Mr. Weisberg did not call back, the officers did not ask the appellant whether he had an alternate number or method of contacting Mr. Weisberg or if there was another lawyer he wanted to speak to. The appellant submits that it cannot be the case that placing a single phone call to counsel of choice in the span of an hour satisfies the implementational aspect of s. 10(b) right to counsel, and certainly that cannot be enough in the circumstances of this case. The trial judge’s finding of no Charter breach was an error of law.
[27] The appellant also submits that the trial judge’s reasoning was infected by two errors: The first error was the trial judge holding that, since this was an impaired driving case, “time was of the essence. The officers waited close to an hour” and, therefore, given the time of night, there was “no reason to think that the call would be returned before the next morning.” The second error was the trial judge holding that the police conduct was acceptable given that, when the appellant was offered the opportunity to contact duty counsel, he took it and did not voice any dissatisfaction with the advice received.
[28] The appellant describes the trial judge’s reasoning as erroneous since, per R. v. Vernon, 2015 ONSC 3943, “there is no positive obligation on a detainee to express dissatisfaction with the advice of duty counsel or to continue to request an opportunity to speak with counsel of choice in order to establish a breach” and “the onus is on the Crown to establish a valid waiver” of the detainee’s right to seek advice from his counsel of choice: R. v. Vernon, 2015 ONSC 3943, 340 C.R.R. (2d) 213, at para. 44, leave to appeal denied, 2016 ONCA 211.
[29] The appellant submits that the police breached the Charter since the officers assumed responsibility for contacting counsel of choice but did almost nothing to do so. Further, the police error was compounded by the QT misleading the appellant by telling him that the officers “have called the lawyer’s number and they checked the internet and there’s only one way to get a hold of this gentleman [and] there’s no message or anything that refer to another number, and they’ve left a message about an hour ago.”
The Crown’s position on the alleged Charter Breach
(a) Informational component to right to counsel
[30] The Crown submits that there was no breach of the informational component of s. 10(b). The appellant was advised of his right to retain and instruct counsel without delay and advised of the existence and means of accessing duty counsel. The appellant understood this information: there was no evidence to the contrary.
[31] The Crown argues that R. v. Devries, 2009 ONCA 477 did not create a requirement that an officer ask a detainee if he or she “wishes to call a lawyer now.” Rather, the court in Devries stated that an officer’s informational obligations consist of advising a detainee of the right to instruct counsel without delay, and of the existence and means of contacting duty counsel. Compliance with this obligation should be measured by whether the “essential character” of this right was conveyed to the detainee. This approach was recently endorsed by the Court of Appeal in R. v. Jonat, 2023 ONCA 162, at para. 12 (“Jonat”).
(b) Implementational component to right to counsel
[32] The Crown submits that the trial judge did not err when she found that there was no violation of the implementational component of s. 10(b). The police’s efforts must be considered in context. It was the middle of the night and there was investigative urgency given the nature of the evidence being sought. There was no evidence that the appellant was diligent in the exercise of his right to choose counsel. Nor did the appellant complain about speaking with duty counsel. In these circumstances, a s. 10(b) infringement was not established.
The Standard of Review
[33] In R. v. Rizvi, 2023 ONSC 1443 (“Rizvi”), Woollcombe J. succinctly laid out the standard of review on a summary conviction appeal:
[40] On an appeal from a trial judge’s finding of a Charter violation, the trial judge’s factual findings, which grounded his decision, are entitled to deference, absent palpable and overriding error. His legal conclusion respecting whether there was a Charter breach is reviewable on a standard of correctness: R. v. Le, 2019 SCC 34 at para. 23; R. v. Shepherd, 2009 SCC 35 at para. 18.
Discussion
[34] Counsel provided me with numerous authorities concerning the s. 10(b) right to counsel, particularly with respect to drinking and driving offences. I find that the law in this area was comprehensively described by Stribopoulos J. in R. v. Jhite, 2021 ONSC 3036. Like the case at bar, Jhite was an appeal from a summary conviction where the focus was on whether police violated Mr. Jhite’s right to consult his counsel of choice after he failed an ASD test. Stribopoulos J. allowed the appeal, finding that the police failed to give Mr. Jhite a reasonable opportunity to consult with his lawyer of choice. As both the law and the facts in Jhite are instructive, I have quoted extensively from the decision, beginning with the section on the duties section 10(b) imposes on the police:
[25] In [[R. v. Bartle, [1994] 3 S.C.R. 173]](https://www.canlii.org/en/ca/scc/doc/1994/1994canlii64/1994canlii64.html), the Supreme Court of Canada concisely summarized the duties s. 10(b) of the Charter imposes upon the police when they detain or arrest an individual. These include:
(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).
Bartle, at p. 191-92; see also Manninen, at pp. 1241-42; Brydges, at pp. 203-204; R. v. Evans, [1991] 1 S.C.R. 869, at p. 890; Taylor, at para. 23. The first duty is informational. The second and third duties are implementational and only engaged if the detainee asserts their right by asking to speak with a lawyer: Bartle, at p. 192.
(c) The obligation on detainees to be reasonably diligent and the duty on police to hold off
[26] Detainees must be “reasonably diligent” in exercising their right to counsel, failing which the police duty to hold off on questioning or otherwise eliciting evidence will be suspended: see R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 35; R. v. Ross, [1989] 1 S.C.R. 3, at pp. 10-11; R. v. Black, [1989] 2 S.C.R. 138, at pp. 154-55.
[27] This limitation aims to prevent the person under detention or arrest from needlessly frustrating the police investigation, which could, in some cases, result in “an essential piece of evidence to be lost, destroyed or rendered impossible to obtain”: R. v. Smith, [1989] 2 S.C.R. 368, at p. 385. In the context of drinking and driving investigations, this means that, if the detainee is not reasonably diligent, the police duty to hold off will be suspended and provide no “bar to [police] continuing their investigation and calling upon him to give a sample of his breath”: R. v. Tremblay, [1987] 2 S.C.R. 435, at p. 439.
(d) The right to counsel of choice and the duty on police to hold off
[28] The Supreme Court of Canada has recognized that s. 10(b) of the Charter entitles an accused to consult a lawyer of his or her choice: Ross, at pp. 11-12; Black, at p. 155; Willier, at paras. 24, 35. An invocation of that right triggers an obligation on the police to afford the detainee a reasonable opportunity to consult with their lawyer of choice and, in the interim, to hold off on questioning or otherwise attempting to elicit evidence from the detainee: Ross, at p. 12; Black, at p. 154; Willier, at para. 33.
(e) The obligation on police if they control the means for contacting counsel of choice
[29] In some jurisdictions, including Peel Region, the police do not provide detainees with the means to contact counsel of choice. For example, police do not provide detainees with access to a phone and the Internet or a lawyers' directory. Instead, the police have assumed responsibility for locating the lawyer’s phone number and calling them. Detainees only have access to the telephone once the lawyer is on the line. In jurisdictions where police take that approach, a detainee’s ability to exercise their right to counsel of choice and do so with reasonable diligence mostly depends on the police.
[30] Where police assume control over the means for contacting counsel of choice, their efforts must reflect the same reasonable diligence expected of detainees: R. v. O’Shea, 2019 ONSC 1514, 372 C.C.C. (3d) 352, at para. 42; R. v. Doobay, 2019 ONSC 7272, 61 M.V.R. (7th) 225, at paras. 30-31; R. v. Maciel, 2016 ONCJ 563, 32 C.R. (7th) 174, at para. 43; R. v. Panigas, 2014 ONCJ 797, 305 C.R.R. (2d) 18, at para. 52 (however, see also R. v. Wijesuriya, 2020 ONSC 253, 459 C.R.R. (2d) 235, at paras. 64-79). Requiring anything less would risk encouraging only token efforts by the police and imperilling the right to counsel of choice: Maciel, at para. 43.
[31] Expecting the police to exercise the same reasonable diligence the law demands of a detainee does not mean, as Schreck J. observed in O’Shea, “that the police are obliged to take every step an accused would take at the exact times that she would take them”: at para. 22. Instead, as he explained, the question “is whether the police took all steps that were reasonable in the circumstances”: at para. 22; see also Wijesuriya, at para. 72; R. v. Ruscica, 2019 ONSC 2442, 50 M.V.R. (7th) 121, at para. 38; R. v. Ali, 2018 ONCJ 203, 29 M.V.R. (7th) 143, at para. 59.
(f) Where counsel of choice is not immediately available
[32] The Supreme Court of Canada has recognized that, if counsel of choice 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”: Willier, at para. 35; see also Ross, at p. 11; R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, at para. 17. There are no fixed time limits. Instead, “[w]hat 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”: Willier, at para. 35; see also Ross, at pp. 12-13.
[33] In Ross, for example, the Supreme Court’s first decision recognizing that s. 10(b) includes the right to consult a specific lawyer, two detainees could not contact their lawyers at 2:00 a.m. Before they could call their lawyers’ offices in the morning, police placed them in an identification line-up. By doing so, the police violated their 10(b) Charter rights, the Supreme Court held, because the line-up could have easily been held “a few hours later”: at pp. 7, 12-13.
[34] Drinking and driving investigations undoubtedly give rise to unique time constraints. Nevertheless, the Supreme Court of Canada has explained that urgency does not automatically arise just because a detainee’s blood alcohol concentration dissipates over time: R. v. Prosper, [1994] 3 S.C.R. 236, at p. 275. “Urgency” is not the same as “mere investigatory and evidentiary expediency”: Prosper, at p. 275. The Crown will have the option of calling expert evidence “to relate later and lower test results back to the blood-alcohol level at the time of the offence”: Prosper, at p. 276. (The Crown no longer needs to resort to this option because of the statutory read back now provided by s. 320.31(4) of the Criminal Code.)
[35] After a reasonable period, if counsel of choice is still not available, “detainees are expected to exercise their right to counsel by calling another lawyer”: Willier, at para. 35; see also Ross, at pp. 10-11; Brydges, at pp. 215-16. In such circumstances, in keeping with their duty to facilitate contact with counsel (Willier, at para. 41), the Court of Appeal for Ontario has recognized that police should ask the detainee if they would like to call a different lawyer: R. v. Traicheff, 2010 ONCA 851, at para. 2.
[36] In assessing whether police afforded a detainee a reasonable amount of time to speak with their chosen lawyer and whether a detainee has been reasonably diligent in their efforts to do so, the availability of duty counsel is also a relevant and important consideration. In Brydges, the Supreme Court refrained from imposing time limits on how long the police must wait for counsel of choice to become available. However, it noted that “[w]aiting for eight to ten hours for counsel of the detainee’s choice to become available may not be justified … when duty counsel has been available all along”: at p. 216; see also R. v. Richfield (2003), 178 C.C.C. (3d) 23 (Ont. C.A.), at paras. 8-9.
[37] For example, in Richfield, the Court of Appeal concluded that the police did not violate the right to counsel of choice where they waited just slightly more than an hour for the appellant’s preferred lawyer to call back. Given the delay and police concerns about the window closing on the presumption of identity (what was then s. 258(1)(c)(ii) of the Criminal Code), police offered the appellant the chance to call duty counsel. He refused. The court held that by declining duty counsel at that point, the appellant was not reasonably diligent in exercising his right to counsel: at para. 12. Accordingly, the police duty to hold off lapsed and they were entitled to proceed with collecting breath samples.
(g) Foregoing the right to counsel of choice in favour of duty counsel
[38] A detainee who asserts their right to counsel of choice by asking to speak with a specific lawyer may – before being afforded a reasonable opportunity to contact that lawyer – choose to forego doing so and instead exercise their right to counsel by speaking with duty counsel.
[39] In Willier, following the accused’s arrest for murder, the police informed him of his right to retain and instruct counsel. Soon afterward, he had a brief conversation with duty counsel. The next day he was offered a further opportunity to contact counsel, and he made an unsuccessful attempt to reach a specific lawyer. He left a message for that lawyer. The police then asked if he wanted to call another lawyer; Mr. Willier declined, indicating he would prefer to wait for the lawyer to call back. At that point, the officer informed Mr. Willier that the lawyer’s office was closed (it was the weekend) and cautioned him that unless the lawyer checks his messages, he might not call back until the next day.
[40] The officer then reminded Mr. Willier of the availability of duty counsel. Mr. Willier responded by asking to call duty counsel. Following his brief conversation with duty counsel, the police commenced an investigative interview with Mr. Willier. At the outset of that interview, Mr. Willier confirmed that he was satisfied with the advice he had received from duty counsel. Before commencing questioning, the police reminded Mr. Willier of his right to counsel and invited him to stop the interrogation at any time if he wanted to speak with a lawyer again. In these circumstances, the Supreme Court of Canada in Willier concluded that the police did not violate the right to counsel of choice.
[41] The Supreme Court held that a valid waiver of that right did not require that the police tell Mr. Willier he was entitled to have a reasonable opportunity to consult counsel of choice and of their obligation to refrain from questioning him until he had such an opportunity. That additional information, which would parallel what police must tell a detainee who initially asserts their right to counsel but then attempts to waive it (Prosper, at p. 274), was unnecessary because Mr. Willier was not choosing to forego speaking with counsel entirely. Instead, after being unsuccessful in contacting a specific lawyer, he was merely opting to call another: Willier, at paras. 38-39. The Court also concluded that the police did not interfere with Mr. Willier’s right to consult counsel of his choice, explaining, at para. 43:
… In no way did the police interfere with Mr. Willier’s right to a reasonable opportunity to consult with counsel of choice by simply reminding him of the immediate availability of free Legal Aid after his unsuccessful attempt to call Mr. Royal. When Mr. Willier stated his preference to wait, Cst. Lahaie reasonably informed him that it was unlikely that Mr. Royal would be quick to return his call given that it was a Sunday, and reminded him of the immediate availability of duty counsel. Mr. Willier was not told that he could not wait to hear back from Mr. Royal, or that Legal Aid was his only recourse. There is no indication that his choice to call duty counsel was the product of coercion. The police had an informational duty to ensure that Mr. Willier was aware of the availability of Legal Aid, and compliance with that duty did not interfere with his right to a reasonable opportunity to contact counsel of choice. Mr. Willier was properly presented with another route by which to obtain legal advice, an option he voluntarily chose to exercise.
In McCrimmon, a companion decision to Willier, the Supreme Court of Canada also concluded that the police did not violate s. 10(b). In that case, after leaving a message for private counsel, the police offered Mr. McCrimmon the opportunity to call duty counsel, an offer he accepted: McCrimmon, at para. 19. After he spoke with duty counsel, Mr. McCrimmon confirmed that he was satisfied with the consultation and that he understood the advice provided by duty counsel: McCrimmon, at para. 7.
[42] Willier establishes that, after a detainee asserts their right to consult a specific lawyer, even before police afford them a reasonable opportunity to do so, the detainee may choose to forego counsel of choice in favour of exercising their right to counsel by speaking with duty counsel. Although the police are free to offer the detainee the option of contacting duty counsel, they are not permitted to “interfere with [the detainee’s] right to a reasonable opportunity to contact counsel of choice”: at para. 43.
[43] Consequently, the police cannot mislead the detainee by suggesting that they do not have the option of waiting for their preferred lawyer or that their only option is speaking with duty counsel: Willier, at para. 43. Further, the police must refrain from pressuring the detainee to forego consulting their lawyer of choice in favour of speaking instead with duty counsel: at para. 43. In other words, the decision to forego the detainee’s preferred counsel for duty counsel must result from the detainee’s choice. The decisions of Ontario courts both before and after Willier are consistent with the approach it endorsed.
[44] For example, the Court of Appeal has rejected claims that police violated s. 10(b) where detainees, after asserting their right to speak to a specific lawyer, chose to instead speak with duty counsel: see R. v. Eakin (2000), 74 C.R.R. (2d) 307 (Ont. C.A.), at para. 8; R. v. Littleford (2000), 15 M.V.R. (4th) 191 (Ont. C.A.), at paras. 7-8.
[45] In contrast, courts have invariably found violations of s. 10(b) where detainees asserted their right to counsel of choice but then instead spoke with duty counsel because police steered them in that direction and effectively left them with the erroneous impression that they had no other option: see R. v. Singh, 2020 ONSC 1342, at para. 17; R. v. Lewis, 2019 ONSC 5919, 451 C.R.R. (2d) 190, at paras. 44-45; R. v. Vernon, 2015 ONSC 3943, 88 M.V.R. (6th) 84, at paras. 32-33, leave to appeal refused 2016 ONCA 211; R. v. Michael, 2017 ONSC 4579, 17 M.V.R. (7th) 308, at paras. 24-25; R. v. Zaidi (2007), 164 C.R.R. (2d) 271 (Ont. S.C.), at para. 77; [R. v. Kumarasamy (2002), 22 M.V.R. (4th) 234 (Ont. S.C.)].
[46] The leading case remains Kumarasamy. In that decision, Durno J. held that police cannot “go directly to duty counsel when a detainee wants to contact his or her counsel of choice” cautioning that duty counsel “cannot be used to trump a detainee’s right to counsel of choice”: at para. 21. Although Kumarasamy pre-dates Willier, it is entirely consistent with it. In short, the police cannot foist duty counsel on a detainee who wants to speak with their lawyer of choice. If it were otherwise, the right to counsel of choice would be little more than a “right” in theory but not in practice.
Discussion
[35] With the evidence, the trial judge’s ruling, the parties’ positions, and the law now summarized, I turn to whether the trial judge erred in ruling that the police did not violate the appellant’s s. 10(b) Charter right to consult counsel of his choice.
Did the trial judge err in finding no breach of the informational component of Mr. Imer’s right to counsel?
[36] The informational component of the s. 10(b) right to counsel requires the police to inform a detainee of: (i) their right to retain and instruct counsel without delay, and (ii) the existence and availability of legal aid and duty counsel: R. v. Bartle, [1994] 3 S.C.R. 173, at pp. 191-192 S.C.R. The first part of the informational component is apparent in the language of the s. 10(b), while the second is a product of the jurisprudence: Devries, at para. 22. The police will have complied with this obligation when they have conveyed the “essential character” of the s. 10(b) rights to the detainee: Jonat, at para. 12.
[37] I disagree with the appellant that the informational component contains an additional obligation, which is to ask the detainee immediately if he would like to contact counsel, or whether he would like to contact counsel now.
[38] I find that the court in Devries did not create such a requirement. The court simply clarified that, on the facts of that case, asking the detainee if he wished to call counsel now was not misleading. In Antoninas, Durno J. held that the arresting officer was not required to ask the detainee if he or she wished to contact a lawyer: at paras. 76-81. As well, in R. v. Papadopoulos, Dawson J. found no breach of s.10(b) despite the detainee not being asked if he “wished to call a lawyer now” following his arrest: at paras. 30-31.
[39] In R. v. Knoblauch, 2018 SKCA 15, 20 M.V.R. (7th) 203, a decision of the Saskatchewan Court of Appeal, the court explained that:
[31] First, s. 10(b) deals with the granting of certain rights. An individual arrested or detained has the right to retain and instruct counsel and to be advised of those rights, all without delay. A police officer’s obligation to impart knowledge of a right and facilitate its exercise if asserted is not synonymous with an obligation to ascertain whether a detainee wishes to exercise such right. In my view, such an obligation is not mandated by the purpose or wording of s. 10(b) and, while asking such a question may well assist in establishing that a detainee has not been denied an opportunity to ask for his or her right to counsel, it may also, in certain circumstances, defeat the right. I say that because posing the question “Do you wish to call a lawyer now” may be viewed as pressuring the detainee to make a choice whether or not to exercise the right to counsel before a detainee is ready to do so. Arrest and detention are traumatic events and individuals often require time to process what is occurring before they can make an informed decision. Moreover, posing such a question does not guarantee a clear “yes” or “no” response will be given. Silence may ensue or a detainee may give an equivocal answer, such as “maybe later” or say that he or she cannot afford a lawyer (see, for example, Brydges). In short, posing the question suggested by the appeal judge would not unequivocally inform a police officer of the next step he or she should take. [Emphasis added.]
[40] In the appellant’s case, the officers fulfilled their informational responsibilities when they advised the appellant of his right to retain and instruct counsel without delay. Ultimately, the appellant was asked by Officer Burks whether he understood the information that he had just been given by Officer Almond, and the appellant nodded. Officer Almond said, “you’re nodding, so I’m assuming that’s a yes”, to which the appellant responded, “yes”.
[41] There is no evidence that the appellant did not understand his right to counsel, a right that he clearly exercised by advising the officers of his desire to contact a lawyer, Adam Weisberg.
[42] I consider the trial judge’s reference to “if the failure of Officer Almond to immediately ask [the Question] was a violation ... it was fleeting and had been rectified”, to be a finding made in the alternative, and not a determination that the s. 10(b) right had been breached.
Did the trial judge err in finding no breach of the implementational component of Mr. Imer’s right to counsel?
[43] There is no evidence that the appellant was dissatisfied with the advice he received from duty counsel. This case is unlike Jhite, where after a call with duty counsel and before providing a breath sample, the detainee stated that he still wanted to speak with his counsel of choice.
[44] Here, the appellant provided his first breath sample in the breath room at 3:36 a.m., which is exactly one hour after the police called Mr. Weisberg. No one from Mr. Weisberg’s office had called back by that point. The second breath sample was provided at 3:58 a.m., which is 1 hour and 22 minutes after the call to Mr. Weisberg. Again, no one from Mr. Weisberg’s office had called back.
[45] The case at bar differs from Jhite in other ways too. When the arresting officer in Jhite asked the detainee if he wanted to speak to duty counsel, the detainee declined that offer because he wanted to consult with the lawyer recommended by his brother. The detainee testified that he agreed to take the call with duty counsel only because an officer in the booking area told him there would be no harm in doing so and said that he should. Stribopoulos J. found that while police have a duty to provide information, they must refrain from counselling a detainee on the choice they should make. Furnishing information is required, giving advice is impermissible. In Mr. Imer’s case, the police simply informed the appellant of his right to counsel of choice and later put him in touch with duty counsel. The trial judge found no evidence that the police advised the appellant that he should speak to duty counsel even though he wished to speak to Mr. Weisberg.
[46] In Jhite, after the detainee spoke to duty counsel and before he gave his first breath sample, he asked if his lawyer of choice had called back and requested that the police call that lawyer again. Stribopoulos J. held that while it is not the function of police to monitor the quality of advice that a detainee receives from counsel, police are not entitled to ignore statements by an accused that raise a reasonable prospect that the accused has not exercise his or her s. 10(b) rights: Jhite, at para. 81, citing R. v. Badgerow, 2008 ONCA 605, 240 O.A.C. 216, at para. 46. By contrast, there is no evidence that Mr. Imer was dissatisfied with his call with duty counsel.
[47] The case at bar is aligned with R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429 (“Willier”) and R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402 (“McCrimmon”), cases where the Supreme Court found that the police did not interfere with the detainee’s right to a reasonable opportunity to contact counsel of choice. In Willier, the Supreme Court noted that the detainee was not told that he could not wait to hear back from his counsel of choice, or that Legal Aid was his only recourse. The same is true of Mr. Imer. The trial judge found that Mr. Imer spoke to duty counsel and expressed no dissatisfaction after having done so.
[48] The present case is also aligned with the circumstances in R. v. Littleford (2001), 147 O.A.C. 123 (“Littleford”), where the appellant unsuccessfully appealed his conviction for driving with an illegal blood/alcohol concentration on the basis of a s. 10(b) Charter violation. In that case, the officer testified that when he placed the appellant under arrest for impaired driving, he advised the appellant of his right to counsel and asked him if he understood. The appellant indicated that he did and that he had his own lawyer. The officer was the one who called the lawyer’s number. The time was 12:53 a.m. and there was no answer, so the officer left a message on the answering service. The officer then called duty counsel and received a return call shortly thereafter. Subsequently, the appellant spoke to duty counsel and made no further requests to contact his own lawyer and did not complain after speaking with duty counsel. The appellant then gave his breath sample.
[49] The appeal court in Littleford held:
[7] The appellant argues that his s. 10(b) rights were violated because he expressed the wish to speak to his own lawyer, and was not given a reasonable opportunity to do so. The basis for this submission is his assertion that after a perfunctory attempt was made by the officer to reach that lawyer, the officer immediately contacted and put the appellant in touch with duty counsel, contrary to his wishes and therefore contrary to his rights.
[8] On a Charter motion, the onus is on the accused person to prove a breach of his or her Charter rights on a balance of probabilities. The difficulty with the appellant’s position in this case is that he did speak to duty counsel before taking the breathalyzer test. He neither raised any concern at the time, nor did he testify on the voir dire to suggest that he misunderstood his rights at the time or that the conduct of the police officer affected his ability to assert those rights. The Trial Judge made a finding that speaking to duty counsel “seemed to satisfy him at the time.” There is no basis on the record to disturb that finding.
[50] The appellant in this case submits that courts have repeatedly held that calling and leaving a message is insufficient to fulfill the implementational component of s. 10(b). I find that although there are a number of cases where the police’s failure to make another attempt to contact counsel of choice was held to be unconstitutional, the law does not mandate that police must always make a second effort to contact the detainee’s counsel of choice. I would distinguish the cases that the appellant relies upon from the case at bar.
[51] In R. v. Hicks, 2023 ONCJ 64 (“Hicks”), although the trial judge described the one call made to counsel of choice as insufficient, the detainee in that case told the officer that he did not want to speak to duty counsel and insisted on speaking to his lawyer of choice. Despite this, the police called duty counsel and the detainee then spoke to that lawyer. The detainee told the breath technician that he was not satisfied with his call to duty counsel and that he wanted to speak to his counsel of choice. The trial judge found that the police ignored this request and that one officer responded with impatience and open hostility. I find that Hicks is not comparable to the present case. In the case at bar, the appellant never stated that he did not want to speak to duty counsel and, after doing so, never expressed any dissatisfaction.
[52] The appellant also cited R. v. Lewis, 2019 ONSC 5919, 451 C.R.R. (2d) 190, at para. 43. But in that case, the court found that the police made insufficient efforts to contact the detainee’s counsel of choice because the detainee made it abundantly clear that he wished to speak to his lawyer of choice, a family lawyer. The court found that the police made insufficient efforts to contact the detainee’s lawyer as it appeared that the officer had made his own decision about the unsuitability of the detainee’s lawyer when he heard that he was a civil litigator. Once again, the case is not comparable to the within appeal.
[53] In R. v. Edwards, 2022 ONSC 3684 (“Edwards”), the detainee was found asleep in his car at a light on a Highway 401 off-ramp. He was convicted in the Ontario Court of Justice of impaired care and control and “over 80.” After Edwards was given his rights to counsel, he stated that he wished to speak with his own lawyer. He was allowed to use his phone and sent a text message to his counsel of choice at 6:37 a.m. An officer then called counsel’s number and left a voicemail. The officer asked Edwards if duty counsel would be okay if they could not reach his lawyer and he indicated yes. Twelve minutes later, the office called duty counsel. Edwards spoke with duty counsel from 6:56 a.m. to 7:05 a.m. The officer conceded in cross-examination that she did not ask Edwards whether he wished to wait longer for his lawyer to call back. The officer also did not advise Edwards that he had the right to wait a reasonable time to speak to his counsel of choice. After speaking with duty counsel, Edwards was brought into the breath room and asked by another officer whether he had spoken to duty counsel and was satisfied. He answered that he had spoken to duty counsel but did not get a chance to call his own lawyer back. This officer testified that it was her impression that Edwards was not satisfied with his conversation with duty counsel and that he wanted to speak with his counsel of choice. Edwards was then removed from the breath room and an officer called Edward’s counsel again and left another voicemail. Twelve minutes later, at 7:26 a.m., Edwards was escorted to the breath room where he blew two breath samples. Edwards testified on the s. 10(b) application that he agreed to speak with duty counsel only because he felt it was his only option.
[54] Spies J. granted the appeal on the s. 10(b) issue. She held that “when the officers asked for permission to call duty counsel in advance, and then waited just 12 minutes for counsel of choice to call back before contacting duty counsel, the police effectively steered Mr. Edwards to duty counsel.” She also held that it was unreasonable for the police to have left two voicemails in quick succession with Edward’s counsel of choice and ended their efforts there, particularly given how early it was in the morning. Edward was brought back into the breath room for formal testing only 49 minutes after the police first called his counsel of choice. Spies J. found that this did not amount to a reasonable period of time to wait for counsel of choice to call back. She concluded that Edwards engaged with duty counsel only because the police officers failed to wait.
[55] While Edwards may suggest that the implementational aspect of the present appeal was mishandled, I find there are enough differences between the two cases that warrant different outcomes. First, I see Edwards as a case where the police breached the Charter by steering Edwards towards duty counsel. I cannot say that about the present case as I have no similar evidence of steering. Second, here there is no evidence from an officer that the appellant appeared dissatisfied with his conversation with duty counsel. Third, unlike Edwards, the appellant did not testify at trial that he felt he had no option but to speak to duty counsel.
[56] When the appellant does not testify at trial, the court is placed in a position that was described in R. v. Ibrahim, 2016 ONSC 485, at para. 117:
[117] This is not a case like R. v. Vernon, 2015 ONSC 3943, [2015] O.J. No. 4157 (S.C.J.), where the appellant testified at trial that he felt he had no choice but to speak to duty counsel. Mr. Ibrahim chose not to testify on this voir dire. While that was certainly his right, his failure to testify leaves the court with no direct evidence as to how he felt and the circumstantial evidence does not come close to persuading me that he felt that he had no other option but to consult with duty counsel.
[57] In Jarrett, the Court of Appeal upheld the trial court’s finding that the detainee’s s. 10(b) right to counsel was breached when the appellant had contact with counsel only some 30 hours after his arrest. The police had left a voicemail message with Jarret’s counsel of choice an hour and a half after his arrest. But the police did not advise Jarrett of this or follow up when the call to counsel was not returned. Nor did the police make any further efforts to facilitate contact with counsel for the entire time that Jarrett was in hospital, until Jarret moved back to the police station from hospital some 30 hours after his arrest.
[58] I find it overly simplistic to suggest that Jarrett stands for the proposition that a single attempt to contact counsel of choice is insufficient. Certainly, in the circumstances of that case it was. But Jarrett did not involve providing the detainee with the option of speaking to duty counsel, which option was pursued in the present case without coercion. Accordingly, I would distinguish Jarrett as well.
[59] In my view, the case that comes closest to providing appellate direction that a single attempt to contact counsel of choice is insufficient is R. v. Traicheff, 2010 ONCA 851 (“Traicheff”). In O’Shea, Schreck J. summarized Traicheff as follows:
[31] Counsel for the respondent relies on R. v. Traicheff, 2010 ONCA 851, aff’g [2008] O.J. No. 4361 (S.C.J.), aff’g 2007 ONCJ 564. In that case the accused was arrested for a drinking and driving offence and upon being advised of his right to counsel, identified a lawyer he wished to speak to. The police left a message for that lawyer. After not hearing back from the lawyer for 23 minutes, without asking the accused, the police placed a call to duty counsel. Duty counsel spoke to the accused, who did not express any dissatisfaction with the advice he received. He went on to provide breath samples. The Ontario Court of Appeal stated the following, at para. 2:
In finding a breach of s. 10(b) of the Charter, the trial judge said at para. 27 of his reasons:
Appropriately the police should advise the detainee after waiting a reasonable period of time for his lawyer to return the call that no call has come in from his lawyer and ask him if he would like to consult another lawyer. Alternatively the police should ask the detainee whether he has another telephone number where his counsel of choice could be reached or give him a telephone directory to see if he could find his lawyer’s name and another telephone number where he could be reached.
We agree with these observations. Indeed, they reflect the Supreme Court of Canada’s decision in R. v. Willier, 2010 SCC 37 (S.C.C.) where at para. 41 McLachlin C.J.C. and Charron J. wrote that s. 10(b) requires the police to afford detainees not only a reasonable opportunity to contact counsel of their choice but as well to facilitate that contact.
[60] In O’Shea, Schreck J. also commented on the Court of Appeal’s earlier decision in R. v. Richfield (2003), 178 C.C.C. (3d) 23 (Ont. C.A.) (“Richfield”). In Richfield, the Court of Appeal concluded that there was no s. 10(b) breach when counsel of choice did not call back after an hour, and the police did not make a further call to that counsel but offered to call duty counsel. Schreck J. suggested that Traicheff and Richfield could be reconciled on the basis that they deal with different aspects of the implementational components of s. 10(b). In Richfield, the court focused on whether the accused had been reasonably diligent in exercising his right to counsel. Richfield did not make a further request to speak to his lawyer or another lawyer after he was told that his lawyer had not called back. The court concluded that this amounted to a lack of reasonable diligence. However, in Traicheff, the issue was whether the police had taken sufficient steps to implement the accused’s request to speak to his counsel of choice. Schreck J. noted that unlike in Richfield, the accused’s diligence was not an issue in Traicheff, so s. 10(b) continued to impose implementational duties on the police.
[61] I find that it cannot be said that a single attempt to contact counsel of choice is always insufficient and therefore unconstitutional. Rather, the standard continues to be whether the police took all steps that were reasonable in the circumstances: Jhite, at para. 31; O’Shea, at para. 22; Willier, at paras. 33–35. Also see R. v. Gardner, 2021 ONSC 3469, 85 M.V.R. (7th) 138, at paras. 49 to 51 (“Gardner”), which agrees that this is the standard.
[62] In Gardner, Aitken J. clarified, correctly in my view, that:
[51] …. the assertion that police officers are obliged to meet some elevated standard of conduct when they are the ones controlling the telephone, initiating the calls to counsel, and possibly leaving messages with call centres or on answering machines, is contrary to jurisprudence from the Supreme Court of Canada and the Ontario Court of Appeal: see Willier, at paras. 24, 28, 33-35; R. v. Bartle, [1994] 3 S.C.R. 173, 23 C.R.R. (2d) 193, at p. 192; R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, at paras. 17-19; R. v. Canavan, 2019 ONCA 567, 46 M.V.R. (7th) 181, at paras. 16-17; R. v. Richfield (2003), 175 O.A.C. 54, 178 C.C.C. (3d) 23 (C.A.), at para. 6; and R. v. Littleford (2001), 147 O.A.C. 123, 86 C.R.R. (2d) 148 (C.A.), at para. 8.
[63] In R. v. Bukin, 2021 ONSC 3347, 83 M.V.R. (7th) 323, at para. 66 (“Bukin”), Di Luca J. also noted that there is no “fixed period of time” during which the police must wait for counsel of choice to respond:
The courts have long recognized that where counsel of choice is not immediately available, a detainee is entitled to wait a “reasonable amount of time” for their counsel of choice to respond, see Willier, at para. 35 and McCrimmon, at paras. 17-18. There is no fixed period of time. What is reasonable depends on the circumstances of the case as a whole and may include factors such as the availability of duty counsel, the seriousness of the charge and the urgency of the investigation, see Willier, at para. 35. In some instances, a reasonable period of time may stretch hours or overnight, see Ross, at p. 11. In other instances, it will be much shorter, see R. v. Richfield (2003), 178 C.C.C. (3d) 23 (Ont. C.A.).
[64] In Rizvi, Woollcombe J. made the important point that choosing to speak to duty counsel is not a waiver of right to counsel:
[48] These cases [Willier and McCrimmon] demonstrate an obvious point: that when a detainee asserts a desire to speak to a specific counsel, the detainee must be afforded a reasonable opportunity to do so. But, they also highlight that if counsel of choice is unavailable, there is nothing preventing police from offering the option of speaking with duty counsel. If a detainee decides to forego speaking with counsel of choice in favour of speaking with duty counsel, that person’s s. 10(b) rights have not been violated. In such a situation, the Court declined to impose on police any requirement to explain to the detainee the consequences of choosing to speak to duty counsel, rather than continuing to wait for counsel of choice to call back. That is because choosing to speak to duty counsel is not a waiver of the right to counsel, it is a decision to exercise the right to counsel by speaking to duty counsel.
[65] Ultimately, the appellant emphasizes that the police called Mr. Weisberg’s office only once in the middle of the night before directing the appellant to duty counsel. They submit that this was not reasonable in the circumstances of this case and was therefore unconstitutional.
[66] I disagree.
[67] The critical question is whether the police were required to do more, not simply whether the police could have done more.
[68] The trial judge made a finding of fact that the officer who called the number for Weisberg Law listened to the voicemail message, chose the option of pressing one to speak to Mr. Weisberg, and then left a message. While the opening voicemail suggested that the caller could press “0” for “general inquiries or urgent matters”, it seems entirely reasonable for the officer to have pressed “1” for Mr. Weisberg, just as the appellant directed.
[69] Interestingly, the trial judge used the words, “had the officer waited until the end of the message and chosen option zero …, or option two or three for an associate of Mr. Weisberg, then the call would have been directed to someone who would, at least in theory, have responded despite the early morning hour” (emphasis added). Logically, this leads to two possibilities: one, that as soon as the officer heard “1” for Mr. Weisberg, the officer pressed that option and did not hear the rest of the message; or two, the officer heard some or all of the remaining voicemail message and then pressed “1”. In the first scenario, the officer would not have heard the rest of the options, which included pressing “0” for general inquiries and urgent matters. In the second scenario, the officer would have heard some or all of the other options, but still pressed “1”.
[70] Since it would have been physically impossible for the officer to have simultaneously chosen more than one option via a single phone call, the appellant’s argument necessarily rests on the proposition that, in the circumstances of this case, the officers were unreasonable in not calling the Weisberg office again. As discussed earlier, I find no authority to suggest that it is always constitutionally necessary for a second call to be made. However, the appellant’s alternative argument is that, in the particular circumstances of this case, it was unreasonable for the officers to have not done more than leaving just one message.
[71] Looking at the specific circumstances of this case against the backdrop of the considerable case law, I do not find the police conduct to be unreasonable.
[72] The police waited 41 minutes after placing a call to Mr. Weisberg’s office before contacting duty counsel. This was not the 23 minutes in Traicheff. There is no evidence that police advised the appellant that he should speak to duty counsel instead of Mr. Weisberg. I do not find that the police steered the appellant towards duty counsel. There is no evidence that the appellant stated that he did not wish to speak with duty counsel. The appellant spoke with duty counsel for 11 minutes. There is no evidence that, after he spoke to duty counsel, the appellant had some misgivings about doing so, or was still waiting to speak with his counsel of choice. The appellant provided his first breath sample at 3:36 a.m., one hour after police placed their one call to Mr. Weisberg’s office. The second breath sample was provided at 3:58 a.m., one hour and 22 minutes after the call to Mr. Weisberg.
[73] It was not an error of law for the trial judge to take into account as contextual factors that this was a drinking and driving situation, that the officers had waited close to an hour after leaving a message with Mr. Weisberg’s office before administering the first breath test, and that the QT had gone over the circumstances with the appellant before administering the breath test at 3:36 a.m. In my view, the trial judge interpreted the appellant’s comment, “[w]hat choice do I have, sir?”, as the appellant acknowledging that he had exercised his right to counsel, he understood his legal rights about providing a breath sample, and he believed that there was really only one direction in which to proceed. Put another way, the trial judge did not interpret the appellant’s comments as indicative of him being coerced.
[74] In sum, I find no error of law in the trial judge’s determination that the implementational aspect of the appellant’s s. 10(b) right to counsel was not infringed, and I would uphold that ruling.
Charter s. 24(2)
[75] I find no error in the trial judge’s conclusion that the appellant’s s. 10(b) Charter rights were not violated. However, if I am wrong, I would find that that the evidence should still be admitted under the three-factor s. 24(2) test in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 71 to 86 (“Grant”).
[76] I find that the Charter-infringing state conduct would have arisen from the police falling slightly short of either or both of their informational and implementational obligations under s. 10(b) of the Charter. I agree with the Crown’s submission that, if the officer(s) did make a mistake on the informational aspect, this was likely an inadvertent error that occurred when the appellant repeatedly interrupted the officer and pleaded that he not be charged. On the implementational aspect, I find that the law in this area is complex about whether and when an officer must continue to make efforts to contact counsel of choice despite the availability of duty counsel. In the circumstances of this case, I would consider the seriousness of the state misconduct as moderate.
[77] The second Grant factor considers that impact of the Charter breach on the accused’s Charter-protected interests. On the informational aspect, I agree with the trial judge that the breach would have been fleeting and was quickly rectified. On the implementational component, the appellant provided breath samples after receiving legal advice from duty counsel as opposed to his counsel of choice. There is no evidence that he was dissatisfied with that advice. The impact on the appellant’s rights was low and this factor moderately favours inclusion.
[78] Finally, the third Grant factor – whether the truth-seeking function of the criminal trial process would be better served by the admission or exclusion of the evidence – strongly favours admission. In R. v. McColman, 2023 SCC 8, 478 D.L.R. (4th) 577, at para. 72, the Supreme Court of Canada reiterated “that society has a vital interest in combatting drinking and driving.”
[79] I find that the evidence should be admitted notwithstanding any s. 10(b) Charter breach. The evidence is reliable; the appellant did receive legal advice (albeit from duty counsel) before providing the samples; there is no evidence that he was dissatisfied with that advice; and there is no evidence that the police steered him towards duty counsel. Bearing in mind society’s vital interest in combatting drinking and driving, in these circumstances, excluding the evidence because the appellant did not speak to his counsel of choice would bring the administration of justice into disrepute.
[80] I note that the Court of Appeal in Traicheff and the Superior Court in Bukin reached the same conclusion in similar circumstances, namely, the appellant’s s. 10(b) Charter rights were breached, but the breathalyzer readings were still held to be admissible under s. 24(2).
Conclusion
[81] I find no errors in the trial judge’s conclusion that the appellant’s s. 10(b) rights were not breached. In the alternative, even if they were, I would not exclude the evidence pursuant to s. 24(2) of the Charter. As a result, the appeal is dismissed and the conviction for the “over 80” offence stands.
Pinto J.