R v Paisley, 2016 ABQB 152

Court of Queen ’ s Bench of Alberta Citation: R v Paisley, 2016 ABQB 152 Date: 20160314 Docket: 130938343S1 Registry: Calgary Between: Janice Marie Paisley Appellant - and - Her Majesty the Queen Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice A.D. Macleod _______________________________________________________ [ 1 ] On August 8, 2013, the Appellant, Ms.

Paisley, was stopped at a roadside Checkstop in Calgary where Constable Hamm formed the suspicion that she had alcohol in her body and demanded that she perform a roadside screening test which she failed. She was then taken to a Checkstop bus. There, she was given the opportunity to contact counsel and did so in a phone booth provided to her on the bus. For almost an hour she made attempts to obtain legal advice. [ 2 ] At trial Constable Hamm testified that when he observed her hanging up the phone he opened the door to the phone booth

and asked if she had spoken to counsel. When the Appellant replied in the affirmative he then took her to give the breathalyzer test which she ultimately failed, but only by a slight margin. [ 3 ] Based on the evidence before him, the learned trial judge convicted the Appellant of having too much alcohol in her blood under s 253(1)(

b) of the Criminal Code , but acquitted her of impaired driving under s 253(1)(

a) of the Code . Based on the evidence before him, it is common ground that in doing so the trial judge committed no error. [ 4 ] Nevertheless, the Appellant appeals on the basis that her agent, who was a law student, did not raise the issue that she now relies upon; i.e. that she was not afforded a reasonable opportunity to consult counsel prior to the breathalyser test. [ 5 ] In support, she swore an Affidavit in which she states inter alia at paragraph 7: At the trial, Constable Hamm gave evidence that to my recollection was incomplete.

When Constable Hamm came into the phone room after observing that I finally spoke to someone on the phone, I told him that I was not satisfied with the legal advice I got and that I wanted to continue attempting to contact a lawyer. [ 6 ] At paragraph 8, she further states: Once I heard the evidence of Constable Hamm at trial, I told [my agent] that I wanted to give evidence to challenge the evidence of Constable Hamm and to provide further evidence about the poor quality of the legal advice I had obtained, and evidence about my statement to Constable Hamm that I wanted to talk to another lawyer, his response to which was to grab the phone book from my hands and direct me to the breath testing area of the bus. [ 7 ] The agent also filed an Affidavit in response.

Although she denies that she prevented the Appellant from taking the stand and makes a number of other statements about her role as a law student and agent, she does not make any comment or statement that would serve to deny the basic submission of the Appellant that she told Constable Hamm that she was not satisfied with the legal advice that she had received and she wanted to make another call. [ 8 ] Furthermore, this is not a case where Constable Hamm, in his evidence, denied that this took place.

His evidence was that once he was satisfied that she had spoken to a lawyer that was all he was interested in as a condition of administering the breath test. He was not cross-examined on the matter. The Appellant’s version of what happened was never put to Constable Hamm. Nor was the Appellant’s evidence in her Affidavit that the lawyer would not tell her his full name or where he was located. She swore that she did not really trust the legal advice the lawyer gave her and that she wanted to seek other advice from another lawyer.

As such, I do not agree with the Crown that it is simply a case of Constable Hamm saying one thing and the Appellant saying another or that the Court is left in the position of not knowing who to believe as a result of conflicting evidence. The fact is the Appellant’s version was never put to Constable Hamm at trial. Issue [ 9 ] The main issue before this Court is whether the agent’s conduct, combined with other events, produced a miscarriage of justice. Analysis 1. Standard of Review [ 10 ] Under s 686(1)(a)(iii) of the Criminal Code , there is a right of appeal from

summary conviction offences if there is a miscarriage of justice: 686

(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal (

a) may allow the appeal where it is of the opinion that [...] (iii) on any ground there was a miscarriage of justice; See s 822 of the Criminal Code . [ 11 ] The Appellant’s arguments amount to the following: the conviction of the Appellant should be set aside because there was a miscarriage of justice. 2. Positions of the Parties [ 12 ] The Appellant submits that her agent was incompetent in representing her in the following respects. First, the Appellant submits that she failed to follow the Appellant’s instructions to call evidence to support the Appellant’s contentions regarding the breaching of her rights pursuant to s 10(

b) of the Charter . Specifically, she argues that the agent did not competently elicit evidence from the Appellant about the alleged s 10(

b) Charter breach, did not competently cross-examine Constable Hamm on the matter of his breaching of or facilitation of the Appellant’s s 10(

b) Charter rights, and that the agent did not make argument to support a finding of that alleged breach to support the exclusion of the certificate of analysis. The Appellant also submits that the agent demonstrated

unfamiliarity with the laws of evidence and procedure such that the fairness of the Appellant’s trial was called into question, and that noarguments were made in support of acquittal of the Appellant. [13] The Crown submits that the Appellant has not established, on a balance of probabilities, the facts underlying her claim that heragent’s conduct was ineffective and that the agent’s errors deprived the court below of evidence that could reasonably have led to asuccessful Charter application.

The Crown submits that no miscarriage of justice occurred. [14] For the following reasons, I find that a retrial is required due to a miscarriage of justice. 3. Representation by Agent [15] These submissions call into play the legal principles regarding representation by an agent. The Crown submits, and theAppellant agrees, that the Appellant is not constitutionally guaranteed a level of advocacy skill that a reasonable lawyer might provide. Itwas her choice to opt for the less expensive service of an agent offered through Student Legal Assistance.

I agree with this submission. [16] The Nova Scotia Court of Appeal in R v Wolkins, 2005 NSCA 2 at para 65, following the judgment of the Court of Appeal forOntario in R v Romanowicz (2000), (ON CA), 45 OR (3d) 506, 178 DLR (4th) 466 (CA), held that there are fourprinciples which apply to situations where there is representation by an agent: ... First, an accused has the right to choose how he or she will defend a charge. Second, an accused who chooses to be represented by anagent waives the right to effective assistance of counsel.

Third, the fact that an agent is not a competent lawyer is not a ground of appeal.Fourth, the presiding judge has certain duties to an accused represented by agent which are similar to the duties owed to a self-represented person. [17] The Court went on, at para 71, to note that, “there is no constitutional right to effective assistance by an agent.

The choice tobe represented by an agent, therefore carries with it no reasonable expectation of competent representation such as exists in the case ofrepresentation by a lawyer.” Therefore, the accused has to live with the consequences of his or her choice to be represented by an agent. [18] While not meeting the standard of competence expected of counsel does not, on its own support an appeal, the Appellant isnonetheless entitled to raise on appeal the ground that the agent’s incompetence resulted in a miscarriage of justice.

In such a situation,the burden is on the Appellant to demonstrate that the agent’s conduct, perhaps when combined with other events, produced amiscarriage of justice. The question is not just whether steps were or should have been taken by the agent, but whether any failure to takethem has given rise to a miscarriage of justice. If the accused was deprived of a fair trial and it can be demonstrated that there was amiscarriage of justice, an appeal of the conviction may be allowed. 3.

What is a Miscarriage of Justice? [19] As the court noted at para 84 in Wolkins, there are two general headings that a miscarriage of justice can be grouped under: The first is concerned with whether the trial was fair in fact. A conviction entered after an unfair trial is in general a miscarriage ofjustice: Fanjoy supra; R. v. Morrissey (1995), C.C.C. (3d) 193 (Ont. C.A.) at 220 - 221. The second is concerned with the integrity ofthe administration of justice.

A miscarriage of justice may be found where anything happens in the course of a trial, including theappearance of unfairness, which is so serious that it shakes public confidence in the administration of justice: R. v. Cameron (1991), (ON CA), 64 C.C.C. (3d) 96 (Ont.

C.A.) at 102; leave to appeal ref’d [1991] 3 S.C.R. x. [20] I agree with the Crown that it is not sufficient for the Appellant to show that she did not receive a certain minimum level ofcompetency without demonstrating that it may have resulted in a conviction which may not have been obtained had the Court been madeaware of the facts to which she now swears. In other words, while the trial judge was aware that the Appellant was alleging that herCharter rights had been denied, there was no evidence before him other than that the Appellant had asked to speak to a lawyer and thatshe did so.

The burden is on the Appellant to demonstrate that, had the trial judge had evidence before him that she had told the officershe was dissatisfied with the legal advice she received, the outcome might reasonably have been different and that the reliability of thejudgment is compromised: see R v Ricci (2004), (ON CA), 190 OAC 375, 63 WCB (2d) 410 (CA) at para 9, leave toappeal to SCC refused, 30684 (24 March, 2005), R v GDB, 2000 SCC 22 , [2000] 1 SCR 520 at 537, and R v Bilinski, 2013ONSC 2824 at para 83, in the context of representation by a paralegal.

If this is demonstrated, the result at trial may be renderedunreliable and a miscarriage of justice might have occurred. [21] The Appellant does not have to show on a balance of probabilities that the result was affected by the agent’s errors.

Rather, asthe court cited in R v Joanisse, (ON CA), 85 OAC 186 at para 79, 28 WCB (2d) 471, leave to appeal to SCC refused,25430 (30 January, 1997), the standard to be applied where unfairness is said to flow from incompetence, was developed by O’Connor Jin Strickland v Washington 104 S Ct 2052 (1984) at 2068, and it has been adopted in Canada: The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedingswould have been different.

A reasonable probability is a probability sufficient to undermine confidence in the outcome. [22] Use of the term “reasonable probability” is curious given that likely and probable are synonymous terms, but the Court inJoanisse has stated, at para 114, that, “[a] reasonable probability is more than a mere possibility, but less than a likelihood.” Apparently,the phrases “reasonable probability” and “reasonable possibility” are also interchangeable, which I also find curious.

As the BritishColumbia Court of Appeal stated in R v Aulakh, 2012 BCCA 340 at para 42: A miscarriage of justice will occur where there is a reasonable probability or reasonable possibility (the terms are used interchangeablyin the jurisprudence) that “but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonableprobability is a probability sufficient to undermine confidence in the outcome”: Strickland v. Washington, 466 U.S. 668 (1984) perO’Connor J. at 2068, cited in Joanisse at 64.

[23] But in any event, the test, as the court set it out as follows in Joanisse at para 114: While it is impossible to say whether the jury would have acquitted had they heard that version of events it can confidently be said thatthe jury could have acquitted [...] [H]ad the jury heard the appellant’s version of events, there is a reasonable probability that the resultmay have been different. (emphasis added) Where the verdict cannot be taken to be a reliable assessment of culpability, confidence in the outcome of the trial is undermined and theresult is a miscarriage of justice.

Even though this standard was set out in the context of incompetent representation by counsel, it hasbeen applied where the accused is represented by a non-lawyer, such as in Bilinski, where the Appellant was represented by a paralegal. [24] The Appellant submits that, had her agent followed her instructions to call evidence that she informed Constable Hamm thatshe was unhappy with the legal advice she had received and was denied any further calls to support her s 10(

b) application, there was areasonable possibility that the application would have been successful and the evidence would have been excluded under s 24(2), therebyaffecting the verdict. i. Should the agent have cross-examined Constable Hamm on the Appellant’s version of events? [25] The Appellant contends that, as a result of her agent not cross-examining Constable Hamm on the breach of or facilitation ofthe s 10(

b) rights, the Appellant’s defence was not properly placed before the trial judge and had it been, the verdict could have beendifferent. In order to make this determination, it is necessary to consider whether the Appellant’s version of events, if put before the trialjudge, could have led to a finding of a Charter breach that would have required the exclusion of the certificate of analysis and resulted inan acquittal.

Namely, whether the Appellant should have been afforded another opportunity to contact counsel if she did raise herdissatisfaction with the first call with Constable Hamm. [26] In R v Luong, 2000 ABCA 301 at para 12, the Alberta Court of Appeal summarized the law respecting the exercise of s 10(b)rights and the elements of the right to counsel, which was most recently cited in R v Obodzinski, 2015 ABQB 778 at para 28. While alleleven points articulated by the Court of Appeal should be considered in their entirety, I have reproduced only those which are at issuewithin this matter:

Section 10(

b) imposes both informational and implementational duties on state authorities who arrest or detain a person. [...] 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 in urgent anddangerous circumstances)”. [...] 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)”. [...] 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. 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 consider whetherthe 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. [...] 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. [...] [citations omitted] [27] In this case, the Appellant has no complaint about whether the informational duty was fulfilled, but does complain about abreach of the implementational component. The Appellant submits that she did not exhaust her s 10(

b) rights merely because shecontacted a law office and that she ought not to be restricted to one phone call in exercise of this right. She further submits that thedetainee has to be given a reasonable opportunity and time to retain and instruct counsel, and doing so may require more than one phonecall. [28] Indeed, in R v Whitford, 1997 ABCA 85, leave to appeal to SCC refused, 25981 (2 October, 1997), the Court held, at para 15,that “[i]t does not follow that because an accused has contacted a law office, he has exhausted his s. 10(

b) rights.” If the Appellant stillwishes to pursue his or her s 10(

b) rights before speaking to the police, or in the case of impaired driving, providing a sample, the policemay be required to provide an opportunity for them to contact counsel so long as the detainee continues to be reasonably diligent inexercising their rights.

This limit of “reasonable diligence” on the rights of a detainee is necessary, for, as Lamer J, as he then was, notedin R v Smith, (SCC), [1989] 2 SCR 368, “the right to retain and instruct counsel are not absolute and unlimited rights.They must be exercised in a way that is reconcilable with the needs of society,” at 385. [29] In many situations, once the detainee has contacted counsel the police may then be able to continue their investigation. Unlessthe detainee has been diligent in indicating that the advice they received was inadequate or that they wish to continue to exercise their

right, the police can assume that the detainee is satisfied with the exercised 10(

b) right to counsel and are entitled to commenceinvestigative steps: see R v Willier, 2010 SCC 37 at para 42.

In cases where the detainee has been given a reasonable opportunity toconsult counsel, the police are only constitutionally required to provide the detainee with another opportunity to re-consult counselwhere, as the Supreme Court of Canada noted in R v Sinclair, 2010 SCC 35 at para 2, developments in the course of investigationnecessitate it: We further conclude that in most cases, an initial warning, coupled with a reasonable opportunity to consult counsel when the detaineeinvokes the right, satisfies s. 10(b).

However, the police must give the detainee an additional opportunity to receive advice from counselwhere developments in the course of the investigation make this necessary to serve the purpose underlying s. 10(

b) of providing thedetainee with legal advice relevant to his right to choose whether to cooperate with the police investigation or not. To date, this principlehas led to the recognition of the right to a second consultation with a lawyer where changed circumstances result from: new proceduresinvolving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the first information provided wasdeficient.

The categories are not closed. [30] However, where the detainee has made it clear to the police officer that they are dissatisfied with their advice from counsel orthat they wish to continue pursuing their right to counsel, the police should allow them to do so where it is reasonable.

Police officers arerequired to provide a detainee with opportunities to consult with counsel where it is necessary to serve the purpose underlying s 10(b),which was laid out in Sinclair at para 26: The purpose of the right to counsel is “to allow the detainee not only to be informed of his rights and obligations under the law, butequally if not more important, to obtain advice as to how to exercise those rights”: R. v. Manninen, (SCC), [1987] 1S.C.R. 1233 (S.C.C.), at pp. 1242-43.

The emphasis, therefore, is on assuring that the detainee’s decision to cooperate with theinvestigation or decline to do so is free and informed.

Section 10(

b) does not guarantee that the detainee’s decision is wise; nor does itguard against subjective factors that may influence the decision. Its purpose is simply to give detainees the opportunity to access legaladvice relevant to that choice. What amounts to a reasonable opportunity depends on the circumstances as a whole, and may include factors such as the seriousness ofthe charge and the urgency of the investigation: see Willier at para 5, R v McCrimmon, 2010 SCC 36 at para 18 and R v Smith, (SCC), [1989] 2 SCR 368 at 376.

If the Appellant was not provided with a reasonable opportunity to exercise her right tocounsel, there might reasonably have been a Charter breach. If the detainee expresses dissatisfaction with the consultation and does notfeel as if he or she has received advice on how to exercise their rights, then, depending on the circumstances of the case, it may benecessary to allow them to continue to contact counsel. [31] In this case, the Appellant was given a phone, phonebook, information on Legal Aid and privacy. She then attempted tocontact counsel for over an hour, making multiple calls.

In her Affidavit, she notes that she did speak to a lawyer who told her thatrefusing to provide a breath sample was a criminal offence and would not give her advice beyond that she should give a breath sample.She says he also would not tell her his full name, or where he was located.

She stated, at para 11 of her Affidavit, that she “really didn’ttrust the advice he gave [her], and [she] wanted to seek better advice from another lawyer.” Based on her Affidavit, the Appellant saysshe was diligent in asserting her right to counsel and when her call was complete she says she was quick to inform Constable Hamm thatshe was not satisfied with the legal advice. [32] In the circumstances of this case, the evidence in the Appellant’s Affidavit, which was not denied in the agent’s Affidavit orat the appeal, is that the Appellant was reasonably diligent in exercising her right.

There also does not appear to be any evidence that atime imperative existed that would have barred or made an additional attempt to contact counsel unreasonable. Nor was there evidence ofa valid waiver of her right to counsel, even though she complained about the legal advice she received but gave a sample anyways, asthere was no evidence put before the Court that she was provided with a Prosper warning from police: R v Prosper, (SCC), [1994] 3 SCR 236. [33] The Crown argued at the

summary conviction appeal that the Appellant had a reasonable opportunity to contact counsel andthat she received advice. Further, while it is uncontradicted that she did inform Constable Hamm that she was dissatisfied with the legaladvice she received, her not liking the advice she received is distinct from her not being able to establish contact or not getting anyadvice. [34] Of course police are not responsible for probing into the sufficiency of a detainee’s legal advice before providing them withany further calls to counsel.

Such a requirement was specifically negated by the Supreme Court of Canada in Willier at para 41, wherethe court held that police officers are not to be the arbiters of what is sufficient advice to satisfy s 10(b): While s. 10(

b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does notrequire them to monitor the quality of the advice once contact is made. The solicitor-client relationship is one of confidence, premisedupon privileged communication. Respect for the integrity of this relationship makes it untenable for the police to be responsible, asarbiters, for monitoring the quality of legal advice received by a detainee. To impose such a duty on the police would be incompatiblewith the privileged nature of the relationship.

The police cannot be required to mandate a particular qualitative standard of advice, nor arethey entitled to inquire into the content of the advice provided. Further, even if such a duty were warranted, the applicable standard ofadequacy is unclear. As this Court recognized in R. v. B. (G.D.), 2000 SCC 22, [2000] 1 S.C.R. 520 (S.C.C.), at para. 27, there is a "widerange of reasonable professional assistance", and as such what is considered reasonable, sufficient, or adequate advice is ill defined andhighly variable.

On the facts before me, it appears as though there was good reason for the Appellant not to feel confident in the advice she received, andthere was no evidence that her request to call different counsel was a form of delay for the purpose of forestalling of the investigation.There is no reason in evidence why it would not have been reasonable for her to have made an additional call. [35] Unless there was evidence that the Appellant was not diligently pursuing her right and frustrating the investigation throughdelay tactics and stalling, the police investigation should have been suspended: see R v Tremblay, (SCC), [1987] 2 SCR

435 at 439. I agree with the finding of the Court of Appeal in Whitford, at paras 16 and 17, that where the accused, or in this case,detainee, has asserted her s 10(

b) rights, has contacted a law office, and immediately thereafter expresses displeasure with the advice theyreceived and requests to call different counsel, the police are obliged from eliciting evidence until the detainee has been provided with areasonable opportunity to contact counsel. [36] While it is unclear what Constable Hamm remembers and whether his version of events will differ from the Appellant’s, Ifind that there is enough evidence to demonstrate a reasonable possibility that the Appellant’s s 10(

b) rights were breached. Therefore, ifthe evidence were placed before the trial judge, it is reasonably probable that the trial judge would have found a breach, and it wouldhave been one that significantly undermined the Appellant’s right to counsel such that the breath samples would have been properlyexcluded under s 24(2) of the Charter as capable of bringing the administration of justice into disrepute. Without the certificate ofanalysis included as evidence, there would be no basis for the charges against the Appellant and an acquittal would necessarily haveresulted with respect to s 253(1)(b). ii.

Should the Appellant have testified? [37] As I have already determined that the agent’s conduct resulted in a miscarriage of justice, it is not necessary to address thesubmission that the agent failed to competently elicit evidence from the Appellant about the s 10(

b) Charter breach by refusing to callher to give evidence. However, I will note that in R v Archer (2005), (ON CA), 203 OAC 56 (CA), the court held, atpara 139, that: While counsel owes an obligation to advise his client as to whether he or she should testify, the ultimate determination must be made bythe client: B. (G.D.), supra, at p. 300; M. Proulx & D. Layton, Ethics and Canadian Criminal Law (Toronto: Irwin Law, 2001) at pp.114-30. The onus is on the Appellant to demonstrate on a balance of probabilities that counsel, and not the Appellant, decided that the Appellantwould not testify.

If that is demonstrated, and if the Appellant proves that she would have testified had she known it was her choice, andthat her testimony could have affected the result, that is enough to establish that a miscarriage of justice occurred. [38] Although it is not necessary to decide on this issue, I would have found that the Appellant has not met this onus. In hertestimony at the appeal, the Appellant stated that while her agent expressed that she had not prepared questions for her if she did chooseto testify, her agent did not bar her from doing so.

While the Appellant’s agent laid out the pros and cons of testifying, in the end it wasclear that the ultimate decision was left with the Appellant as to whether she would take the stand. Conclusion [39] I find that the Appellant’s agent failed to cross-examine Constable Hamm as to whether the Appellant expresseddissatisfaction with her phone call with counsel. Had the Appellant’s version of events been put before the trial judge there is areasonable possibility that the trial result would have been different, undermining confidence in the outcome.

Therefore, I find that amiscarriage of justice occurred and the appeal from the conviction should be allowed and a new trial ordered. Heard on the 19th day of June, 2015. Dated at the City of Calgary, Alberta this 14th day of March, 2016. A.D. Macleod J.C.Q.B.A. Appearances: Mr. Scott Wilson for the Crown Prosecutor

Mr. Derek Lovatt for the Defence