Court File and Parties

COURT FILE NO.: 22-8818- AP DATE: 2024/01/31

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – Michelle Langstaff Respondent

COUNSEL: Carl Lem, for the Appellant James Foord, for the Respondent

HEARD: January 24, 2024

Reasons for Decision on Summary Conviction Appeal

CARTER J.

[1] The Respondent was acquitted of impaired driving and “over 80” (s. 320.14(b)) after a one-day trial in the Ontario Court of Justice. The Crown appealed the acquittal on the over 80 count, but not with respect to the impaired driving count. The appeal was heard on January 24, 2024, at which time I ordered a new trial, indicating that brief written reasons would follow. These are the reasons.

[2] In light of the fact that the Respondent conceded that the trial judge erred, only a brief recitation of the facts is required.

[3] On April 1, 2022, the Respondent was pulled over by the police as a result of erratic driving. Cst. Cousineau made an approved screening device demand. The Respondent subsequently registered a fail and was arrested.

[4] At 11:46 pm, Cst. Cousineau read the Respondent her rights to counsel. When asked if she wanted to speak to a lawyer, the Respondent answered, “No, sir”.

[5] They arrived in the cellblock at 12:13 am. After the Respondent was paraded and searched, Cst. Cousineau brought her to the lawyer booth. He did not recall that the Respondent had changed her mind and now wanted to speak to a lawyer, but it was his standard practice to do everything in his power to get his arrestees to speak with a lawyer, even if they had declined. It was part of his standard practice.

[6] In her evidence on the voir dire, the Respondent agreed that she said nothing about her right to counsel, other than declining it initially, until Cst. Cousineau brought her to the lawyer booth. The Respondent testified that it was at that point that she asked to call her mother two to three times. Her evidence was that she wanted to speak to her mother so that she could help find a lawyer she could trust but admitted in cross-examination that she did not elaborate or explain the reason for the request, positing that it was “obvious”. Cst. Cousineau denied her request and said that she had to choose a lawyer from the list on the wall in the booth. The Respondent felt like she had no choice but to pick a random lawyer from the list.

[7] Cst. Cousineau did not recall the Respondent asking to call her mother. However, he did describe his general practice of making a phone call to a third party, if the purpose of the call is to obtain information about a lawyer. He had done that before.

[8] The Respondent eventually spoke to a lawyer she chose from a list of local counsel and expressed to the breath technician that she was satisfied with her lawyer call. There was no mention of speaking with her mother.

[9] At 1:24 am and 1:47 am, the Respondent provided samples of her breath into the Intoxilyzer. The readings were both 166 mg of alcohol/100mL of blood.

[10] The trial judge held that the Respondent’s s. 10(b) Charter rights were breached and excluded the breath results pursuant to s. 24(2). Fraser J. made the following critical findings:

She testified that it was obvious, or should have been obvious, that the only reason she wished to call her mother was to get help with performing the tasks that she was apparently being asked to carry out, the task of selecting a lawyer of her choosing. In this case, it was reasonable for the applicant to want to speak to her mother in order to have her assist with choosing a lawyer, as she put it, “a lawyer that she could depend on”.

I accept her testimony that she asked at least three times whether she could call her mother, and was denied that right each time. I find that the applicant has met her onus. Her Charter right under s.10(b) has been breached.

[11] The police are required to permit a detainee to contact a third party for the purposes of facilitating their right to counsel, however, a detainee must first articulate that they wish to contact a third party in order to facilitate that right. In R v Jandu, 2023 ONSC 4139, Justice Rahman reviewed three leading cases on this issue noting:

The authorities from this court make it clear that a detainee who wants to call a third party for help in contacting private counsel has an obligation to tell the police why they want to make that call. All of the following decisions are decisions of this court sitting as a summary conviction appeal court:

R. v. Antoninas, 2014 ONSC 4220: The defendant asked to use his phone to make a call. The officer told the defendant he could not and that the officer would make any calls he wanted to make for him. The defendant claimed at trial that he had wanted to call his sister to get the name of a lawyer. Durno J. held (at para. 94) that the defendant (who did not even tell police who he wanted to call) had the "'unique ability and indeed obligation' to tell the officers who he wanted to call and why."

R. v. Cheema, 2018 ONSC 229: This is a case with facts almost identical to the case at bar. The defendant asked an officer during the rights to counsel recitation whether he could call a friend who was a police officer. The officer told the defendant that he could not call friends. The officer did not ask why the defendant wanted to call his friend. The defendant then asked to speak to duty counsel. Barnes J. held (at para. 31) that "when a detainee does not tell the police the reason why he or she wishes to speak to a third party, there is no obligation on the police to determine why the detainee made such a request.

R. v. Mumtaz, 2019 ONSC 468: The defendant asked to contact a police officer who was a friend of his. He did not say why he wanted to contact his friend. The trial judge found that, in the context of the defendant's request, there was "a clue" as to why he wanted to speak to his friend. The trial judge also held that if there was any doubt why the defendant wanted to speak to his friend, the police should have asked the defendant why he wanted to call his friend. In overturning the trial judge's decision excluding the evidence because of a s. 10(b) breach, Woollcombe J. concluded (at para. 38) that "when a detainee does not indicate to the police the reason why he or she wishes to contact a third person, there is no legal obligation on the police to permit contact with that third party or to make further inquiries as to the reason the detainee wishes to make contact." Woollcombe J. further held (at para. 39) that, since a detainee must assert a request to speak to counsel of choice, "before the police are required to facilitate the implementation of that right, the obligation has been, consistently, on the detainee to explain to police why he or she wishes to speak to a third party."

The foregoing authorities make clear that the appellant was obliged to tell the police why she wanted to call her husband. The police were not obliged to ask her why she wanted to make the call.

Further, regarding the appellant's argument that it was obvious why she was asking to call her husband, like the trial judge, I consider it far from obvious. I agree with the trial judge's analysis that, in the context of the interaction, the appellant did not communicate why she wanted to call her husband. Indeed, the second time she asked to call her husband, it was in response to the final question in the Charter rights recitation - "Do you wish to call a lawyer now?" The appellant's response - "I don't know. I want to talk to my husband first" - implied that she wanted to talk to her husband to determine whether she should call a lawyer. The appellant's response expressed uncertainty and implied the need to call her husband for advice to clear up this uncertainty. The trial judge's analysis at para. 27 of his reasons (set out above) is cogent. Nothing about her responses clearly suggested why she wanted to call her husband. Without clearly telling the officers why she wanted to make the call, the authorities make clear they were not obliged to allow her to make that call.

[12] In R. v. Antoninas, 2014 ONSC 4220, Durno J. has suggested that a breach of s. 10(b) is still possible despite the fact that a detainee did not directly communicate the reason for wishing to speak to a third party where an officer “knew” or “assumed” the call was related to contacting private counsel (paras. 95 and 96). A new trial was ordered because the trial judge had failed to make that critical factual finding.

[13] As in Antoninas, the trial judge here did not make the necessary factual finding that Cst. Cousineau actually knew or assumed that the Respondent wished to call her mother with respect to the facilitation of counsel. Absent that factual finding, a finding that the Respondent’s Charter rights had been breached was not possible. In that regard, the trial judge erred.

[14] Having not heard the evidence or seen the witnesses testify, this Court is not in a position to make a finding one way or another on this issue on appeal. Given the trial judge accepted the Respondent’s evidence that the reason for the request was “obvious”, there was at least some evidence upon which such a finding could be made. As a result, the appropriate remedy is to order a new trial with respect to the charge under s. 320.14(b).

Carter J.

Released: January 31, 2024