R. v. Bateyko, 2011 ABQB 657

Court of Queen ’ s Bench of Alberta Citation: R. v. Bateyko, 2011 ABQB 657 Date: 20111028 Docket: 090295916S2 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Dustin Paul Bateyko Appellant/Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice T.D. Clackson _______________________________________________________ Appeal from the Conviction by The Honourable Judge T.J. Matchett Dated the 28 th day of April, 2011 (Docket: 090295916P1) [ 1 ] At the hearing of this

summary conviction appeal I dismissed the ground of appeal relating to service of the Certificate of Analysis with oral reasons. I reserved decision on the remaining ground of appeal stated in the Appellant ’ s Memorandum of Argument as follows:

Whether the accused ’ s ability to exercise his right to counsel of choice was impeded and therefore caused a breach of s. 10(

b) of the Charter . Circumstances [ 2 ] The appellant was the subject of an impaired driving investigation and had been properly advised of his right to counsel. The appellant wished to exercise that right. The evidence on what happened in the course of doing so was heard in a voir dire at the trial, because the appellant challenged the constitutionality of the breath sample search which followed the counsel access period. The appellant had the onus of establishing that his right to counsel had been breached. [ 3 ] The evidence on the subject was as follows: Constable McNalley A.

Direct Examination A Okay, so the Charter is: (as read) You have the right to retain and instruct counsel without delay. This means that before we proceed with our investigation you may call any lawyer you wish or a lawyer from a free legal advice service immediately. If you want to call a lawyer from a free legal advice service we will provide you with a telephone and you can call a toll-free number for immediate legal advice. If you wish to contact any other lawyer, a telephone and telephone books will be provided to you. If you are charged with an offence you may apply to Legal Aid for assistance.

Do you understand and do you want to call a free lawyer or any other lawyer? Q MS. LEE: And what were the accused ’ s responses to those questions? A He indicated he understood and that he did want to contact a lawyer. Q All right. And please continue. What happened? A We returned to the station at 5:10 hours; brought him into the station. He was searched, placed into a phone room at 5:17. I made sure to check the phone.

The dial tone was working; indicated to him there was phone books there plus the toll-free number for free -- free legal advice which is on the wall, told him that he had an opportunity to speak to a lawyer and I left the room. Q All right. Now, you indicated he was searched. Did you search him? A No.

Q Do you know who did search him? A Yeah, Constable Evans. Q All right, and please continue. What happened? A And at that point I left him alone in the room. We have a video camera with obviously no sound in the typing room so I monitored that to see if he was using the phone and if he was off the phone to monitor ‘ cause we wanted to do the -- the breath test. Finally, at -- I just saw him sitting there looking through the phone books meticulously page by page by page and it wasn ’ t until 5:41 that I went into the room to ask him if he was finished.

He indicated that he wasn ’ t finished and he was trying to find his lawyer ’ s number. In my opinion, I think it was his personal lawyer ’ s number that he couldn ’ t find. I once again indicated to him that he had an opportunity to speak to “ a ” lawyer, not necessarily his particular lawyer if he wasn ’ t able to find the phone number, plus it was really early in the morning; I ’ m not sure if he was calling the home number and whatnot. THE COURT: I am sorry, would you go back and repeat what you just said? A Sure.

THE COURT: I am sorry, I was writing something down and I did not catch it in terms of whether his was calling his lawyer or a particular lawyer. Just -- A Sure. THE COURT: -- to the best of your recollection. A Sure, I went in at 05:41 hours. I asked him if he was finished using the phone. He indicated that he was not. He was trying to find the number to his lawyer.

I indicated to him that he had the opportunity to speak to a lawyer, not necessarily his own personal lawyer if he wasn ’ t able to find the phone number and in my opinion, I think he was trying to find the home number if I recall correctly of his personal lawyer. THE COURT: Sorry, Officer, you keep referring to your opinion. A Yeah. THE COURT: You have not been declared an expert so – A Sorry, yeah. THE COURT: -- you are not --

A Sorry. I don ’ t recall 100% if he said the home number for his personal lawyer. I vaguely remember, if I can check my notebook, if that ’ s -- if I can check that if that ’ s important (INDISCERNIBLE)? THE COURT: Sure, go ahead. Go ahead and do that. A No, sorry, I don ’ t have it in my notebook; it must have been in -- in my report, so I ’ ll just -- I ’ ll just say he was looking for the -- for -- for the phone number for a lawyer. I indicated to him that once again he had the opportunity to speak to “ a ’ lawyer, not necessarily his personal lawyer if he wasn ’ t able to find the number.

I told him that I ’ d come back in 10 minutes; hopefully he had the opportunity to speak to “ a ” lawyer within 10 minutes. Once again I went into the typing room and made sure -- to see if he was going to use the phone. Ten minutes later he hadn ’ t used the phone yet; he was still looking through the phone book. At 5:51, went back into the room once again to reiterate to him once again that he had the opportunity to speak to a lawyer; once again told him the -- showed him the numbers on the wall for the free legal aid.

He had indicated to myself and Constable Evans that he would phone the toll-free number so we left him in the room. I believe I ’ d said five minutes I ’ d come back, but by 6:03 I ’ d seen him on the phone so I obviously let him speak to whoever he was speaking to. At 6:22 is when I saw him hang up from whoever he was speaking to, went back into the room – THE COURT: Sorry, what time was this? A 6:22. THE COURT: Just slow down just a little bit.

A Sure, yes. 6:23 was when I read the second demand and then brought him towards the Intoxilyzer for the breath tech. 6:25 was when I read the -- or, 6:25 is when he took the first sample. Q MS. LEE: Okay. I ’ ll just stop you there. A Sure. Q You indicated 6:22 you noticed that the accused was off the phone. A Mm-hmm. Q What happened from that point? A I went into the room and then I would have asked him if he was finished and he indicated that he was. B. Cross Examination

Q All right. Now, if I understand correctly, when Mr. Bateyko was put into a phone room -- A Mmhmm. Q -- you ’ re able to observe him through a camera; is that correct? A That ’ s correct. Q And so you are in effect able to watch what he ’ s doing but not hear what he ’ s doing; is that right? A That ’ s correct. Q Okay. And I think we can agree that when he was put into a phone room he did pick up and start looking through a phone book; is that correct? A That ’ s correct. Q You watched him look through the phone book for a period of time before entering the room? A Yeah.

Q And then you entered the room and he told you that he was looking for his lawyer ’ s number; is that the idea? A That ’ s correct. Q So at that point in time you were aware that he had a lawyer, his lawyer in mind -- A Mm-hmm. Q -- is that fair to say? A Fair to say, yeah. Q All right. It ’ s true that he told you he was looking for his lawyer ’ s number; that ’ s true, isn ’ t it? A That ’ s true.

Q All right. I think we can agree that you didn ’ t ask him who his lawyer was, the name of his lawyer, did you? A No. Q May that be why it ’ s not recorded in your notebook which lawyer he was looking for? A No, I wouldn ’ t have asked him who -- who his lawyer was. Q Right, and therefore the lawyer that he was looking for wouldn ’ t be noted in your notebook because you made no -- you conducted no inquiry as to which lawyer he was looking for or who his lawyer was; that ’ s true, isn ’ t it? A No, it wouldn ’ t have been a question that I would have needed to ask him, his particular lawyer ’ s name, no.

Q Fair enough. And I guess it goes from that given that we don ’ t know which lawyer he ’ s looking for, you yourself made no effort to contact that lawyer? A No, it ’ s not -- it ’ s not something that we would have done. We don ’ t contact his lawyer for him; he needs to contact his own lawyer. Q Fair enough. So I think we can agree that you never looked up the lawyer that he was looking for or assisted him in trying to find the lawyer that he was selecting; that ’ s true, isn ’ t it? A No, I wouldn ’ t have assisted him in that regard. Q Okay.

A I did assist him in regards to he had the ability to contact a lawyer. Q Right. A That ’ s what the Charter says, yeah. Q And that notion that he has the right to contact “ a ” lawyer -- A Mm-hmm. Q — not his lawyer, that ’ s contained in your report or notes, isn ’ t it? A In my particular notes?

Q Right. A I don ’ t recall if I wrote that specific thing down. Q Fair enough, but you do recall telling him specifically you don ’ t enjoy the right to contact your lawyer; you enjoy the right to contact “ a ” lawyer; that was -- that information was communicated to him clearly, wasn ’ t it? A I -- I did specifically say that if he cannot contact his particular lawyer that he has the ability to contact “ a ” lawyer. Q Thank you. And further to that, am I right that you went to the extent of going back and watching him again on the closed-circuit camera? That ’ s right, is it?

A Yeah, I -- I wouldn ’ t have sat there and meticulously watched him, but yeah, we keep an eye on our prisoners at all times. Q No, no, no. I ’ m not alleging -- A Yeah. Q -- that you meticulously watched him -- A Yeah. Q -- but you went back and you looked at the camera screen? A Yeah, because I -- I make sure that he ’ s using the phone. Q Sure, sure. A And when he ’ s finished using the phone is when I go in, yeah. Q And when you went back you observed him, right? A Mm-hmm. Q And you observed him continue to look through or work through the phone book; that ’ s correct, isn ’ t it? A That ’ s correct, yeah.

Q And then you went back in and told him about the 1-866 number; that ’ s right, isn ’ t it? A The toll-free numbers, yes, mm-hmm. Q Right. So just to be clear, instead of helping him find his lawyer you directed him to call duty counsel; that ’ s fair to say, isn ’ t it? A I directed him to contact “ a ” lawyer, yes. Q Right. A I -- I wouldn ’ t have given him my opinion. Q And when you directed him to contact “ a ’ lawyer -- A Mm-hmm. Q -- you pointed to the number on the wall; that was the number for duty counsel? A I would have indicated the number on the wall; that ’ s correct, yes.

Q Fair enough, by pointing to it? A I can ’ t recall if I would have particularly pointed to it. Q But you identified it -- A Yeah. Q -- if I understood your evidence in chief? A For sure. Q Okay. Okay. A I would have identified it, yeah. Q So you know he wants to contact his lawyer --

A Mm-hmm. Q -- but instead you point to the duty counsel number; that ’ s fair to say, isn ’ t it? A I would have shown him all the options. I would have given him the phone book which is what I did and -- Q All right. A -- I would have indicated the number; that ’ s correct. Q You showed him all of the options; is that what you said, ma ’ am? A Well, his -- sorry, the options he has when he ’ s in there -- the phone book or the duty-free numbers on the wall. Q You showed him all of the options except for the lawyer that he was looking for, right? A I wouldn ’ t have had access to his lawyer, sir.

Q But you made no inquiry as to which lawyer he ’ s looking for? A No, we wouldn ’ t have done that, no. Q Right, but you know he ’ s looking for a specific lawyer? A Sure. Constable Evans A. Direct Examination Q All right, and please continue. What happened - - what was your involvement from then on?

A My direct involvement in the actual investigation was - - was secondary, minimal, but I do recall that the accused was - - was taking quite a bit of time to - - to contact a lawyer and after approximately 45 minutes Constable Cornelson went to the cell and I was with her and asked him if he was able to contact a lawyer. And he - - he was flipping through the phone book saying that he couldn ’ t get a hold of his lawyer.

And then I -- I believe Constable Cornelson made reference to the -- the fact that it was, you know, after 5:00 in the morning and after 45 minutes of him not being able to contact his lawyer he might want to consider contacting an available lawyer at that time of the morning.

Q All right, and did you have any conversations with the accused yourself? A Not that I recall. B. Cross Examination Q Sorry. And if I understand correctly, you were present when your partner spoke to Mr. Bateyko about getting a hold of a lawyer? You were present when that conversation at the cell occurred; is that right? A I was present for -- for the conversation. I didn ’ t document. Q You were there and you were able to hear; that ’ s the point, correct? A Yes. Q All right. You weren ’ t involved in that conversation; you just listened, right? A I don ’ t specifically recall. Q Fair enough.

A I haven ’ t made any notations of. Q You heard Mr. Bateyko indicate that be wanted to get a hold of his lawyer; that ’ s true, isn ’ t it? A Yes, that he was attempting to contact his lawyer. Q You ’ d made no inquiry as to the name of his lawyer, did you? A No. Q All right. You made no effort to contact his lawyer or his law firm as the case may be? A No, I didn ’ t. Q You made no effort to find out who that lawyer was to help him get a hold of that person; that ’ s true, isn ’ t it?

A That’s true, I did not. Q All right. You didn’t tell him that he has as much time as he needs provided that he’s diligent in getting a hold of his lawyer, didyou? A I wouldn’t have said that, no. Q You wouldn’t have said that? All right. Did you make a note of telling him that he could phone 411?

A No, from my recollection of -- of that conversation the -- the gist of it was after 45 minutes had elapsed he hadn’t got a hold of alawyer and Constable Cornelson pointed out to your intoxicated client that it was 5:00 in the morning and realistically, not all lawyersare going to be awake at that time. [4] The appellant argued that Constable McNalley should have assisted the appellant in contacting the lawyer he had in mind.Failure to do so amounted to violating the appellant’s 10(

b) right. The appellant also argued that the constable, in promoting legal aidcounsel, interfered with the appellant’s exercise of his right to counsel of his own choosing. 1. Applicable Principles [5] From the authority binding upon me, the following principles relevant to this appeal can be distilled: (

a) The police are obliged to advise the detainee of his right to retain and instruct counsel without delay. This is part of the duty toinform: R. v. Propser (SCC), 1994 CarswellNS 25 (S.C.C.); R. v. Bartel (SCC), 1994 CarswellOnt 100(S.C.C.). (

b) In so doing, the police are required to advise the detainee of the availability of legal aid and duty counsel. Again, this is part ofthe duty to inform: R. v. Propser; R. v. Bartel. (

c) If the detainee wishes to exercise his right, the police must provide him with a reasonable opportunity to do so. This is part of theimplementational duty imposed on police: R. v. Propser; R. v. Bartel. (

d) If the detainee chooses to exercise his right and chooses to contact a specific lawyer, the police have to give him a reasonableamount of time to make that contact; R. v. Willier 2008 ABCA 126 affirmed with reasons 2010 SCC 37 , 2010 2 S.C.R. 429. (

e) Police may be involved or assist the detainee in contacting counsel; R. v. Wolbeck 2010 ABCA 65. (

f) Police may not interfere with the detainee’s efforts to contact counsel: R. v. Wolbeck. (

g) The determination of whether the conduct of the police amounted to interference or assistance is best left to the trier of fact as itwill be highly dependent on the circumstances of the case; R. v. Wolbeck. (

h) What the police must do or what must not do, will depend on what the detainee says and does: R. v. Top, 1989 ABCA 98, [1989] A.J. 351 (C.A.).

(

i) Where, as here, the learned trial judge’s decision involves the application of a legal standard to facts found, I must give deferenceto the facts found by him. However, if his application of the standard was incorrect, I must intervene: R. v. Shepherd, 2009 SCC 35, 2009 S.C.C. 35, [2009] 2 S.C.R. 527. 2.

Was it necessary for Constable McNalley to assist the appellant in contacting counsel the appellant may have had inmind? [6] It seems to me that where an accused indicates a desire to exercise his right, is diligent in doing so and asks for assistance,then, the police are obliged to provide such reasonable assistance as may be required. That is implicit in Justice Côtè’s opinion in R. v.Top, where, at paragraph 9 he said: “...The detained driver need not reveal the content of any legal advice given, or (probably) the fact that none was given.

But if he expectsthe police to help him reach a lawyer, he should give them some logistical information. If he seeks such help or more time, he should say(for example) whether he received a busy signal, no answer, a disconnected phone, a recorded message, or some relative or employee ofthe lawyer. What the police must do or not do depends in part on what the detainee says and does: Tremblay v. R., (SCC), [1987] 2 S.C.R. 435, 37 C.C.C. (3d) 565, 568; R. v. Leclair and Ross, supra, at 88.

The police are not there to play 20 Questions.Therefore this appeal must turn on what the police knew or would readily surmise, not hidden facts.” [7] A right so integral to our notions of fairness and fundamental justice should not be lost because of ignorance, inability ormisunderstanding. Should assistance be dependent on the detainee actually asking for help? I do not think so. It is enough if a reasonableperson would in the circumstances conclude that the detainee was in obvious need of assistance. That should be sufficient to invoke anobligation to provide further assistance.

The need expands the implementation duty and requires provision of further assistance. Theexact nature of that assistance will turn, as Justice Côté opined, on what a reasonable person would see as necessary based upon what theaccused did and said. In this case, the evidence was that the appellant spent a long period looking through a phonebook, presumably, forhis lawyer’s number. When Constable McNalley went into the phone room at 5:41 a.m., the appellant said he was trying to find hislawyer’s number.

She told him that he was entitled to contact “a” lawyer not necessarily “his” lawyer if he wasn’t able to find the phonenumber and she would return in 10 minutes. Plainly the appellant had not asked for help and the circumstances do not compel theconclusion that the appellant wanted or needed assistance. When the constable returned 10 minutes later because the appellant had notused the phone up to that point, she again pointed out the free Legal Aid number which the appellant then said he would call.

There isnothing in that, that compels the conclusion that the appellant wanted help or needed help finding his lawyer. Of course, one could cometo that conclusion but it would be equally reasonable to conclude that the appellant had tried and failed and was prepared to accept thealternative pointed out to him. His actions and statements did not make it obvious that he wanted help or could be taken as wanting help.If that is what he needed or wanted, he had to make that clearer.

Or at least clear enough so that he could meet his onus of establishingthat his right to counsel had been violated. [8] Therefore I agree with the learned trial judge, for slightly different reasons, that there was no breach of the appellant’sCharter right to counsel by failing to assist him in finding his own counsel. 3.

Did Constable McNalley interfere with the appellant’s right to counsel? [9] The learned trial judge drew the unassailable inference that the appellant did receive legal advice between 5:51 a.m. and 6:22a.m. and accepted that the appellant, when asked, said he was finished. [10] The learned trial judge implicitly concluded that Constable McNalley had not forced the appellant to chose Legal Aid norprevented him from doing something else. Therefore, as a matter of fact, the constable did not interfere.

The issue remains however,whether as a matter of law, the constable’s actions amount to improper interference with the appellant’s 10(

b) right. In my view, they donot. Simply reminding a detainee of the opportunity for free legal advice does not amount to interference. That is all there is here. [11] Therefore, that ground of appeal must also fail. [12] In the result the appeal is dismissed.

Heard on the 15 th day of September, 2011. Dated at the City of Edmonton, Alberta this 27 th day of October, 2011. T.D. Clackson J.C.Q.B.A. Appearances: Julie Snowdon Alberta Justice for the Respondent Peter Shipanoff Knisely Shipanoff LLP for the Appellant/Accused