R. v. Bray, 2012 ABQB 41

Court of Queen ’ s Bench of Alberta Citation: R. v. Bray, 2012 ABQB 41 Date: 20120117 Action: 090723925S1 Registry: Calgary Between: Her Majesty the Queen Respondent - and - Jeffrey Gordon Bray Appellant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C.L. Kenny _______________________________________________________ [ 1 ] Mr. Bray appeals his conviction, after trial, under section 253(1) (

b) of the Criminal Code . [ 2 ] At trial, counsel agreed to a voir dire wherein the court would determine whether Mr. Bray’s

section 10(

b) rights under the Charter had been breached. Mr. Bray alleges that he was not given a reasonable opportunity to retain and instruct counsel when he was taken into custody. It was agreed that all evidence from the voir dire would be admitted into the trial proper. [ 3 ] Mr. Bray raises three grounds of appeal: 1) The trial judge erred by finding that the appellant had received a reasonable opportunity to retain and instruct counsel. 2) The trial judge erred by rendering a verdict that is unreasonable and cannot be supported by the evidence.

3) The trial judge erred by failing to provide sufficient reasons for his decision. Relevant Facts on grounds: 1) The trial judge erred by finding that the appellant had received a reasonable opportunity to retain and instruct counsel. 2) The trial judge erred by rendering a verdict that is unreasonable and cannot be supported by the evidence.

A) Evidence from the police officer [ 4 ] Mr. Bray was placed under arrest and read the standard charter and caution. He responded “yes” that he understood and wanted to call a lawyer. [ 5 ] He was taken to the police bus and placed in the phone booth at 2:25 a.m. The use of the phone, phone books, toll number and 411 were explained to him and he was told to knock when he was finished. [ 6 ] The officer observed Mr. Bray on the video monitor to be using the phone and talking. Mr. Bray then stood up and stood in front of the door. The officer recorded he was off the phone at 2:34 a.m.

The officer opened the door and 2 minutes later Mr. Bray provided his breath sample. [ 7 ] On cross examination, the officer was asked “no conversation with respect to the nature of advice he received or the quality of advice he received or any conversation at all about the type of advice he received? The officer answered - No, I never ask.

B) Evidence from Mr. Bray [ 8 ] Mr. Bray testified to the following as it relates to the grounds of appeal: Page 18, Line 40 to Page 19, Line 15: A. ...The officer provided me with a laminated piece of paper with some toll free numbers on it, as well as Yellow Pages. He then closed the door behind me. I tried one of the numbers on the laminated piece of paper as I didn’t think that there would be very people answering their phones at 2:30 in the morning. The first call I made, I didn’t receive an answer so I tried another one of the number – 1- 800 numbers on the – on the laminated piece of paper.

I got an answer and I told the person on the other end of the phone what had happened. He proceeded to respond to what I said to him, but I was having extreme difficult hearing – difficulty hearing what he was saying to me. He was using a lot of legal words and the volume in the receiver was very low. I tried to tell him that I couldn’t hear him and that I couldn’t understand what he was saying to me. He told me to shut the fuck up and that he was going to hang up on me if I kept trying to talk to him so I stayed on the phone. I let him talk for a while. I was not understanding what he was saying.

I still couldn’t hear him. I had the – my one ear plugged, trying to hear better. I still could not hear very well what he was saying and I tried once again to tell him that I wasn’t understanding what he was saying. He again -- Page 19, Lines 21 to 28: A. ... so, then he again responded in the same manner and told me that I need to shut up or he was going to hang up the phone and so I just – I just listened to him as best I could and when the conversation was over I basically was just told to cooperate with the police and that was the end of the conversation.

Q. ... estimate how long you think you were on the phone for – with him for? A. ... estimate above five – five minutes or so. Page 20, Lines 2 to 14: Q. ... just give the court a bit more detail in terms of why were you having a difficult time either hearing or understanding... A. ... the – the receiver was extremely quiet. The – just his voice in general. I couldn’t hear what he was saying to me and then the little bit that I could hear, that he was saying, he was using a lot of large – like, legal words that I don’t understand or don’t know the definition for them and that.

So, the little bit that I could hear I wasn’t fully understanding what he was saying to me and then with – when I tried to explain that to him the response I got was – I was worried that he wasn’t going even help me at all if I kept telling him I couldn’t – that I couldn’t understand him or hear him. Page 20, Lines 31 to 41: Q. Okay. So, when you – how would you characterize the legal advice that you received ... A. I would say it was not any advice at all. Q. Okay After you were done on the phone, can you tell the court what happened then? A.

I hung up the phone and I faced the door and started to look around for the officer and when he showed up he let me out of the – out of the booth and proceeded to take me to the breath – Breathalyzer machine. Page 21, Lines 1 to 23: Q. ... You never said to him at all – did you have any discussions with respect to, you know, your – your dealings in – in the phone room with that lawyer? A. No. No -- ... A. – not that I recall. Q. Did he ask you whether you were able to get a hold of someone or whether you got legal advice?

A. I believe he asked him if I got a hold of anybody, which I said, yes. And I believe I told him that it was – I wasn’t too satisfied, but he proceeded anyways. Q. Okay. Why wouldn’t you have – have told the officer that – you know, expressed your displeasure in terms of hey, I didn’t receive – I mean, this guy was no help at all and, you know, let the officer know as to the issue in the phone room? A. I didn’t – didn’t realize that it would make any difference. I thought that once I had talked to somebody that was all was avail – all that was available for me. So – yeah. Q. ... why would you think that? A. ...

I don’t know. Just from what I’ve seen on TV – television and stuff I’ve always assumed you get one phone call, one piece of advice. I’ve never really been in that situation before. Cross-Examination Page 22, Lines 29 to 36: Q. ... from what you’ve been saying I – I can tell that you could understand some of what was being said to you, correct? A. I could hear some of what he was saying to me. A lot of it I didn’t understand. He was – he as using a lot of legal – legal language that I didn’t – I wasn’t understanding what it meant.

Like, he was using words that I’ve never heard before, basically, talking about like Charter of Rights and things like that, that I didn’t – just didn’t understand and couldn’t hear well enough to know if what I was hearing was even correct. Page 25, Lines 24 to 38: Q. So, you know there’s other ways – even when you’re in that phone room, other ways to try and get in touch with a lawyer, right? A. No, I’ve never needed to get in touch with a lawyer for -- Q. But, you have a – you have a phone book there -- A. Yes. Q. – that you can look at? A. Yes. Q. And there’s also the – the 24-hour phone number, right? A.

Which I believe was on that sheet they gave me, was the 24-hour phone number.

Page 26, Lines 4 to 19: Q. ... the officer didn’t come into the room and say, okay, your time’s up or anything like that? A. No. Q. So, you’re – you’re sitting there. You’ve got this no advice at all and did it not occur to you to just dial a different lawyer? A. I didn’t think I would be allowed to. I figured -- Q. Well, who’s going to stop you? You’re in the room, the police are outside, why not just make another call? A. Now that you mention it, I probably should’ve, but I – at – at the time I didn’t think I would be allowed to. Q.

Or, for that matter, why not just say to the police, look, do you mind me making another call, I couldn’t hear what that guy was saying? A. I don’t – didn’t think – didn’t think like that at all. Page 26, Line 38 to Page 27, Line 2: Q. Okay. No one ever told you that you couldn’t call again? A. No. Not – not that I recall, no. Q. And in fact, you were in the room perfectly able to call again if you had only thought of it really, is that correct? A. Yes. If I – if I thought I was allowed to then, yes, I – I could’ve made another call. [ 9 ] In

summary, Mr. Bray was given the opportunity to contact legal counsel and he did contact and speak with a lawyer. He says he could not hear everything the lawyer said and he did not understand all the words the lawyer used as it was a lot of legal language. He estimates he spoke to the lawyer for about 5 minutes. He was told by the lawyer to cooperate with the police and that was the end of the conversation. [ 10 ] He then went to the door, the officer let him out of the room and he provided a breath sample. The officer does not recall any conversation about the quality of the advice Mr.

Bray received and says he never asks about the quality of advise received. [ 11 ] Mr. Bray says he finished his conversation with the lawyer, got up and walked to the door. He recalls the officer asking if he got hold of anybody and he said yes- he believes he told him that he wasn’t too satisfied. He did not call another lawyer and he says he did not ask the officer if he could contact another lawyer. He simply assumed he could not do so from what he has seen on television.

1) The trial judge erred by finding that the appellant had received a reasonable opportunity to retain and instruct counsel. [12] The substance of the Defence argument is that the quality of the legal advice received by Mr. Bray was so bad that itamounted to no advice at all and certainly not the opportunity to retain and instruct counsel. This was because Mr. Bray was havingtrouble hearing the lawyer and trouble understanding what he was saying to him because of the legal language used. Defence counselsays there was an onus on the officer when Mr.

Bray came out and said he contacted legal counsel but wasn’t too satisfied, to either givehim another chance to use the phone or ask him if he wanted to waive his

section 10(

b) rights. [13] Defence argues it is a question of fairness. Here there was a young person who had never had contact with the legal systembefore. He is given a list, on a wall, of lawyers to call for advice. It is the so called “state” giving him this information that this is who hecan call for help. He does that and does not get the help he requires. He does not know that he can call another lawyer because of whathe has seen on television.

He tells the officer he is not satisfied but the officer does not inquire further as to what he is not satisfied aboutor offer him the opportunity to contact another lawyer. [14] Crown counsel argues that Mr. Bray had every opportunity to contact and speak with counsel. He confirmed he spoke withcounsel. He was not interrupted or hurried. He could have called other counsel had he chosen to. He did not, he said, because he thoughthe could only talk to one lawyer. He did not request of the officer the opportunity to speak to another lawyer. He did not tell the officerthat he received no advice from the lawyer.

He said he wasn’t satisfied but for all the officer knew, that could mean that he didn’t likethe advice he got from the lawyer. As to the issue of fairness, the Crown says that it was not the state that did not treat Mr. Bray as theymust and should, rather it was an individual lawyer who did. The remedy for that is a complaint to the Law Society, not the exclusion ofevidence at trial. [15] The

interpretation of the Charter is a question of law and the standard of review is correctness. If the trial judge did notcorrectly interpret the

section 10(

b) right to retain counsel, this court can substitute it’s opinion for that of the trial judge. [16] The trial judge found that Mr. Bray’s

section 10(

b) rights had not been violated. He found that he did have the reasonableopportunity to retain and instruct counsel. [17] There is no question that Mr. Bray had the reasonable opportunity to contact and speak with counsel. Not only did he have theopportunity but he called one lawyer and got no answer. He then called another and had at least a five minute conversation with him. Hewas not hampered in making another call if he wanted to. He did not ask to do so. He got up, and went to the door to wait for the officer,a signal he was finished.

The officer asked if he had a chance to talk to anybody and he said yes. [18] To answer the Defence argument that the quality of the advice the accused received was so deficient as to amount to no adviceat all, the Crown points to R v. Willier ,2010 SCC 37. At para. 41 of that decision, the court said, and I paraphrase, that 10(

b) requires anopportunity to contact counsel and to facilitate that contact. It does not require that the police monitor the quality of the advice given.That is not their duty or their role. The police may assume the individual is satisfied with their contact with counsel unless they diligentlyand reasonably indicate that the advice received is inadequate. [19] There are three primary decisions that counsel for the Defence relies on. The first one is R. v. Luong, 2000 ABCA 301, [2000] A.J. 1310. In this decision, the Alberta Court of Appeal set out a guideline for trial judges when faced with the issue ofsection 10(

b) of the Charter. The following steps must be considered: 12. For the assistance of trial judges charged with the onerous task of adjudicating such issues, we offer the following guidance: 1. The onus is upon the person asserting a violation of his or her Charter right to establish that the right as guaranteed by the Charterhas been infringed or denied.

Section 10(

b) imposes both informational and implementational duties on state authorities who arrest or detain a person. 3. The informational duty is to inform the detainee of his or her right to retain and instruct counsel without delay and of theexistence and availability of Legal Aid and duty counsel. 4. The implementational duties are two-fold and arise upon the detainee indicating a desire to exercise his or her right to counsel. 5. The first implementational duty is "to provide the detainee with a reasonable opportunity to exercise the right (except inurgent and dangerous circumstances)". R. v.

Bartle (1994), (SCC), 92 C.C.C. (3d) 289 (S.C.C.) at 301. 6. The second implementational duty is "to refrain from eliciting evidence from the detainee until he or she has had that reasonableopportunity (again, except in cases of urgency or danger)". R. v. Bartle, supra, at 301. 7.

A trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with a reasonableopportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the right to counselwas provided with a reasonable opportunity to exercise the right. (emphasis added) 8. If the trial judge concludes that the first implementation duty was breached, an infringement is made out. 9.

If the trial judge is persuaded that the first implementation duty has been satisfied, only then will the trial judge considerwhether the detainee, who has invoked the right to counsel, has been reasonably diligent in exercising it; the detainee has the burden ofestablishing that he was reasonably diligent in the exercise of his rights. ...(emphasis added) 10.

If the detainee, who has invoked the right to counsel, is found not to have been reasonably diligent in exercising it, theimplementation duties either do not arise in the first place or will be suspended....In such circumstances, no infringement is made out.(emphasis added) 11. Once a detainee asserts his or her right to counsel and is duly diligent in exercising it, (having been afforded a reasonableopportunity to exercise it), if the detainee indicates that he or she has changed his or her mind and no longer wants legal advice, theCrown is required to prove a valid waiver of the right to counsel.

In such a case, state authorities have an additional informationalobligation to "tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of thepolice during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he orshe has had that reasonable opportunity" (sometimes referred to as a "Prosper warning"). R. v. Prosper, supra, at 378-79. Absent such awarning, an infringement is made out. [20] In R v.

Whitford, 1997 ABCA 85 , 196 A.R. 97, the Alberta Court of appeal was dealing with a situation where adetainee had contacted counsel but then indicated to the officer when asked about speaking with the police that no, he did not want tospeak to the police until he talked to Legal Aid. He was not given that opportunity. In that decision, the court referred to the decision in Rv. Top (1989) 1989 ABCA 98 , 95 A.R. 195 (C.A.) where the court said a detainee: need not reveal the content of any legal advice given, or (probably) the fact that none was given.

But if he expects the police to help himreach 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 telephone, a recorded message, or some relative or employee of the lawyer.What police must do or not do depends in part on what the detainee says and does............The police are not there to play ‘TwentyQuestions”.

Therefore, this appeal must turn on what the police knew or would readily surmise, not hidden facts ( emphasis added). [21] In that case, the Court said it was clear from the words of the detainee that he wanted to talk to legal aid, that he had not

obtained meaningful legal advice and that he still wished to pursue his s. 10(

b) rights before he spoke to police. The Court said it does notfollow that because an accused has contacted a law office, he has exhausted his s 10(

b) rights. [22] At para. 14: .... An accused who wishes to make two or three successive phone calls in the exercise and pursuit of his right to retain and instructcounsel must be permitted to do so unfettered by police questioning. The relevant questioning after an initial phone call to a law office isnot simply whether the accused did or did not speak to a lawyer. After all, the lawyer might tell the accused that he is too busy, tooexpensive, or simply not interested in acting for and advising the accused.

He might even recommend that the accused contact Legal Aid.An accused is entitled to a reasonable opportunity to have meaningful contact with and advice from counsel. I decline to approve policequestioning after completion of a first telephone call to a law office when the accused has clearly said that he does not wish to speak tothe police until he has also spoken with Legal Aid. [23] The difficulty that faces me from this decision is that the court said “ the relevant questioning after an initial phone call to alaw office is not simply whether the accused did or did not speak to a lawyer”.

The Court does not go on to say what the appropriatequestion is. We know from that decision that the accused was diligent in exercising his rights as he indicated he wanted to speak to LegalAid. On those facts, it makes sense that he should have been able to do that and the Court said that. Going back to the earlier commentsin Top however, the police are not required to conduct 20 questions; they need help from the accused. The accused needs to give them“logistical information”; he needs to ask for more time or to make another call.

We must ask what the police might know or reasonablysurmise from the conduct and comments of the accused. [24] In this case, the Defence argues that when the accused said he wasn’t too satisfied, the onus was then on the police to inquirefurther. But what is the inquiry to be which does not infringe on the solicitor client relationship as referred to in Willier? In that decision,the Court said the police are entitled to proceed unless the accused, reasonably and diligently, indicates the advice they received wasinadequate. [25] Here the accused simply said he contacted someone and he was not satisfied.

We know from the trial evidence that theaccused spoke for about 5 minutes with a lawyer. Is the officer to ask what he is not satisfied about? It may be that he simply does notlike the advice given by counsel. Is the officer obligated then, without any request by the accused , to ask if he wants to contact someoneelse? [26] In a perfect world, the accused would know to tell the officer the problems he had in hearing the advice and understanding itand that he didn’t think he got any advice at all. That would prompt the officer to ask if he wanted to talk to someone else. But the officercannot be a mind reader.

We have to look at what the officer knew or could reasonably surmise from the comments and the actions ofthe accused. What the officer knew was that the accused had the opportunity and all the phone numbers to contact legal counsel. Theofficer saw him on the phone talking to someone for about 5 minutes. The accused got up and went to the door looking for the officer.He did not continue to use the phone to make other calls. The officer recalls no discussion after but the accused said the officer asked ifhe contacted someone and he said yes but he wasn’t too satisfied.

He made no other comments and went with the officer to give a sampleof his breath. Without any further comment, it is not unreasonable for the officer to assume he talked to counsel and maybe he did notlike the advice he got. He cannot inquire , in my view, into what the accused is not satisfied with, without risking interfering with asolicitor and client relationship. [27] The Defence points to the decision of R.v. Anderson 2003 ABQB 964 , 350 A.R. 135. In that case, an accused, whenprovided the opportunity to call counsel, actually called the mother of a friend to get the number of a lawyer he wanted to call.

Theofficer re-entered the room and asked how he made out. The accused responded “O.K.” The officer then asked “ Are you satisfied withthe advice that you received?” and the accused answered “ya”. The officer assumed he had spoken to legal counsel. The appeal justicefound that the officer’s assumption that he had spoken to legal counsel was not enough. He found the officer should have asked one ortwo unambiguous questions in order to meet the onus of ensuring the accused had the reasonable opportunity to contact counsel.

Theappeal judge did indicate however that if the accused had in fact spoken with counsel, there would be no argument on the appeal. [28] In this case the accused spoke with counsel. I am sympathetic to the argument of counsel for the Defence that this was ayoung man who had never been involved with the law before and did not know he could call another counsel. He assumed that given alist of lawyers by the “state”, that was the quality of the legal advice he was entitled to. There is a question about the quality of theadvice he received but that is not the issue here.

The issue is whether he was given the opportunity to exercise his right to counsel whichI find he was and whether he was diligent in doing so which I find he was. I find the officer had no duty to go further in asking questionsor soliciting further information from the accused about his opportunity to talk to counsel.

[ 29 ] I am satisfied that the trial judge was correct when he found that the accused’s sec 10(

b) rights had not been infringed. This ground of appeal is dismissed. 2) The trial judge erred by rendering a verdict that is unreasonable and cannot be supported by the evidence. [ 30 ] The second ground of appeal deals with an unreasonable verdict. On the evidence before the trial judge and as accepted by him, the verdict was not unreasonable. It is supported by the evidence. This ground of appeal is dismissed 3) The trial judge erred by failing to provide sufficient reasons for his decision. [ 31 ] The third ground of appeal is that the trial judge did not provide sufficient reasons for his decision.

The trial was very short. I have read the transcript of the evidence and argument. As pointed out by the Crown, the trial judge asked several questions or made points during the argument that indicated what his concerns were. His reasons, while brief, deal with the issues with which he was faced, and set out why he made the decision he did. The evidence was not extensive. I do not find the reasons to be deficient. This ground of appeal is also dismissed. Heard on the 13 th day of January, 2012. Dated at the City of Calgary, Alberta this 16th day of January, 2012. C.L. Kenny J.C.Q.B.A.

Appearances: Andrew Barg for the Respondent Gregory R. Dunn for the Appellant