R v Campbell, 2021 ABQB 792

Court of Queen’s Bench of Alberta Citation: R v Campbell, 2021 ABQB 792 Date: 20211001 Docket: 200334548S1 Registry: Hinton Between: Steven Anthony Campbell Appellant - and - Her Majesty the Queen Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice M.

David Gates _______________________________________________________ Introduction and Overview [ 1 ] Steven Anthony Campbell, the Appellant, appeals his conviction by the Honourable Judge Higgerty of the Provincial Court of Alberta, dated January 26, 2021, for the offence of having a blood alcohol level exceeding 80 milligrams of alcohol in 100 ml of blood within two hours of operating a motor vehicle, contrary to s. 320.14 (

b) of the Criminal Code . Following his conviction, the Appellant received a fine of $1500, and a victim fine surcharge of $450. In addition, he was prohibited from operating a motor vehicle for a period of one year. Judge Higgerty directed, however, that the Appellant be immediately eligible for the provincial interlock program. [ 2 ] At trial, the Appellant unsuccessfully alleged a breach of s. 10(

b) of the Canadian Charter of Rights and Freedoms . [ 3 ] This appeal was heard on July 20, 2021. At the conclusion of oral submissions, I reserved my decision. These are my reasons for decision.

Facts [ 4 ] The trial of this matter commenced on October 27, 2020, in Hinton. The Appellant was represented by counsel, though not the same counsel appearing on his behalf in this appeal. The case proceeded by way of a Charter voir dire to consider the Appellant’s challenge to the admissibility of the Certificate of Analysis. [ 5 ] The Crown called one witness on the voir dire , Cst. David McKenna, a member of the Royal Canadian Mounted Police, stationed in Edson, and assigned to Traffic Services at the time of the offence.

He had 13 years of service as of the date of the trial, having served eight years with Traffic Services in Edson. [ 6 ] On the evening of March 15, 2020, Cst. McKenna was on routine patrol in Edson, and driving an unmarked police vehicle. A vehicle driven by the Appellant turned south on 52 nd Street from 4 th Avenue as Cst. McKenna was stopped at the same intersection, but facing north on 52 nd Street. Constable McKenna’s attention was drawn to the Appellant’s vehicle as it accelerated quickly after it made the turn. Constable McKenna turned his police vehicle around and pursued the Appellant’s vehicle.

The Appellant did not immediately stop his vehicle when Cst. McKenna activated the lights and siren on his police vehicle, though ultimately stopped after entering the parking lot of the Sundowner Inn at approximately 10:47 p.m. When the Appellant finally stopped the vehicle, Cst. McKenna performed a traffic stop. The Appellant produced his driver’s license, registration and insurance as requested, but with some difficulty. [ 7 ] During his interactions with the Appellant, Cst. McKenna detected an odour of alcohol on the Appellant’s breath. He detained him for a breath test.

At 10:56 pm, he read the demand to provide a breath sample for an approved roadside screening device, and accompanied the Appellant to his police vehicle for that purpose. At 11:07 p.m., the Appellant registered a fail after providing a breath sample. At 11:09 p.m., he was arrested for impaired operation of a motor vehicle and driving with a blood alcohol level in excess of 80 milligrams percent. He was advised of his Charter rights, given a second breath demand and returned to the RCMP detachment, arriving shortly after 11:20 p.m.

The Appellant responded in the affirmative when asked if he understood that he had the right to contact counsel and if he wished to exercise that right. [ 8 ] Constable McKenna escorted the Appellant to the telephone room after they arrived at the RCMP detachment. He confirmed that the telephone numbers for local lawyers, as well as the Legal Aid phone number, were posted on the wall of the room. He also confirmed that the telephone was working by calling his personal cellphone. Cst. McKenna then left the room to afford privacy to the Appellant. In his direct evidence, Cst.

McKenna described what took place: I then gave him privacy. He – – he was asking me questions which essentially would have elicited legal advice, which I – – I can’t give. I can only tell them he has the opportunity to seek legal counsel. So I gave him the privacy and the phone room by – – by just shutting the door. Before I did that, I let them know, when you’re finished, just knock on the door, something like that. Closed the door, gave him his privacy. A short time later, I heard him knock on the door.

I opened the door and he seemed a little frustrated that he – – he couldn’t – – couldn’t get an answer from some of the numbers that he called. I did let him know that the Legal Aid Alberta is 24 hours a day, seven days a week, and then gave him some more privacy and some time to – – to try some other numbers, which he did. He knocked on the door again. I asked him if he’d spoken to a lawyer and he said yes. Then we went from the – – the phone room down to the little interview room, where he waited for Sgt.

Shiels, who was the breath tech, to come in and introduce himself and explain how you provide a breath sample into the Intox EC/IR II, which he did: Trial Transcript, p. 18, l 28-41. [ 9 ] Constable McKenna elaborated on the questions posed by the Appellant at this time: He was -- he was –essentially wanted to know who to call, you know, which – which lawyer he should call. I can’t be specific over any – any particular lawyer or – or what he should do. It happens often - - and I just – I just told him, you know, make a phone call and you can get some of that legal advice or speak to a lawyer.

I –I can’t give legal advice and I’m certainly not going to point out any particular lawyer that - - that I would suggest - - the he called and I - - I certainly did not: Transcript, p. 19, l. 23-28. [ 10 ] According to Cst. McKenna, the Appellant knocked on the door to the telephone room at 11:42 pm. He reported that he had only been able to get answering services. At that point, Cst. McKenna advised that Legal Aid Alberta was available 24 hours a day, 7 days a week, and that he would not get an answering service.

Constable McKenna also pointed out to the Appellant telephone numbers posted on the wall from lawyers who had previously provided their 24-hour telephone numbers, as well as the telephone numbers for Legal Aid. The Appellant appeared to Cst. McKenna to be very frustrated. He testified: “he verbally expressed how frustrated - - how frustrated he was, not being able to get an answer. And - - and, of course, a little - - I can’t remember the exact - - the exact terms, but just frustrated with the process that we were going through, of course”: Transcript, p. 20, l. 28-31. [ 11 ] The Appellant thanked Cst.

McKenna and asked for, and was granted, more time to try and obtain legal advice. The Appellant knocked on the door a second time at 11:49 p.m. Constable McKenna asked if he had spoken to a lawyer and the Appellant responded in the affirmative. [ 12 ] After listening to an audio recording of what transpired in the RCMP detachment, Cst. McKenna provided additional detail regarding his conversation with the Appellant after he knocked on the door to the telephone room the second time. He testified: ...I asked if he’d spoken to a lawyer.

He had, but he - - he didn’t like the advice and that’s where you heard me say that that’s between you and them. But I just had to make sure that, if he wanted more time, then he had more time and I asked him that and, again, noted in my notebook, I asked if he did speak to a lawyer and he said, Yes, I did: Transcript, p 38, l 39- p 39, l 2. [ 13 ] Cst. McKenna elaborated further:

McKenna: [H]e actually said that he - - he didn’t agree with the advice he was just give, as you heard on the video there, and - - I told him that’s - - that’s between you and them. That’s - - that’s got nothing to do with me, but that’s - - that’s what he told me, that he didn’t like the advice, essentially. Crown: And then as I heard the video, you offered him more time to speak with a lawyer. McKenna: Yes Crown: Why did you do that?

McKenna: Well, at that point, he hadn’t actually said that he’s spoken to a lawyer, more that the person – the guy that he’s spoken to, he – he wasn’t satisfied with the information he received. So did you need more time, did you want more time, did you want to call somebody else? And, essentially, he said no. And I said, well, did you speak to a lawyer? And he said, yes, I did: Transcript, p. 39, l 39 – p. 40, l 11. [ 14 ] In cross-examination, Cst. McKenna agreed that the Appellant initially responded “I talked to a guy. I don’t know” when first asked if he had spoken to a lawyer.

Constable McKenna went on to explain that this response was what prompted him to confirm that it was actually a lawyer that the Appellant had spoken to. Constable McKenna then added “[T]hat’s very important”: Transcript, p 56, l. 31. [ 15 ] Cst. McKenna acknowledged that he could not recall what the Appellant said after that, though stated that the Appellant never raised the issue of speaking to a lawyer again.

He also testified that the Appellant never indicated that he wanted more time to obtain legal advice. [ 16 ] After being given an opportunity to contact counsel, the Appellant provide two samples of his breath, both resulting in readings of 120 milligrams of alcohol in 100 millilitres of blood. He was served with various documents by Cst. McKenna, including a copy of the Certificate of Analysis, an Appearance Notice, and a Notice of Suspension, and released from police custody at 1:08 am on March 16, 2020. Constable McKenna gave the Appellant a ride to his hotel in Edson. According to Cst.

McKenna, the Appellant was pleasant and cooperative throughout, notwithstanding that the situation was an uncomfortable one. This was the reason for his departure from his usual practice and offered the Appellant a ride back to his hotel. [ 17 ] Constable McKenna acknowledged in cross-examination that, after the Appellant confirmed that he had spoken to a lawyer, he was not satisfied or did not agree with the advice that he had been provided. Constable McKenna then told him “It’s your right. It’s not about whether you think it’s good or bad advice. This is about you, not about me”.

Thereafter, the following exchange took place between Cst. McKenna and counsel for the Appellant: Q Right, but when you said, it doesn’t matter if you got good or bad advice - - but wouldn’t it matter to the accused if he got good or bad advice? A It probably would to them but that’s - - Q Right A - - that’s not - - it’s whether or not he contacts a lawyer. That’s what he has to do. Q That’s my whole point. That the only thing you want to confirm is that he contacted a lawyer. That’s all you need to confirm. A That’s the important thing, that he spoke to a lawyer and got some advice. Q Right.

But in this case, the accused said to you, essentially, I don’t like the advice I got. A Yes, he did. Transcript, p. 57, 1.22-35. [ 18 ] After listening again to the audio recording, Cst. McKenna acknowledged that he then said to the Appellant: “Okay, Did you want more time to...”, followed by “Do you need more time? It’s your legal right so we can’t mess around.

So that’s why I need to know if you talked to a lawyer.” At that point, the Appellant confirmed that he had spoken to a lawyer: Transcript, p 59, l 12-32. [ 19 ] Constable McKenna acknowledged that he never asked the Appellant if he wanted to speak to a different lawyer after learning the Appellant was not happy with the legal advice he received. Constable McKenna never considered asking the Appellant if he was waiving his right to contact counsel as he had already spoken to counsel. According to Cst.

McKenna, he “had no reason to read a Prosper or waiver”: Transcript, p. 60, l. 3. [ 20 ] At the conclusion of Cst. McKenna’s testimony, the Crown called no further evidence on the voir dire . The Appellant did not testify. [ 21 ] The trial was adjourned to December 1, 2020, following oral submissions by counsel for the Appellant. Counsel for both the Appellant and the Respondent agreed to file written submissions at agreed upon dates in November 2020. [ 22 ] The Learned Trial Judge delivered very brief oral reasons dismissing the Appellant’s Charter argument on January 26, 2021.

He found that the Appellant was not “befuddled by alcohol” at the time of the traffic stop, though was “upset and frustrated” with his predicament of being stopped very close to the parking lot of his hotel. The Trial Judge made repeated references in his reasons to this general state of frustration. Higgerty PCJ also found that Cst.

McKenna was “excruciatingly methodical” in administrating the approved screening device and explaining the Appellant’s right to counsel, but that this was necessary in order to get the Appellant “to focus”. [ 23 ] The Learned Trial Judge found that the Appellant was “quite frustrated” as a result of his inability to reach a lawyer during his first attempt to do so. Higgerty PCJ found that this first period in the telephone room lasted approximately nine minutes. He also found that the Appellant was “less in frustration” after the second period of time in the telephone room when he was able to speak to a lawyer.

[ 24 ] Higgerty PCJ found as a fact that Cst. McKenna offered the Appellant more time to exercise his right to counsel after he had confirmed that the Appellant had reached counsel but “wasn’t very happy with the advice”. He concluded that there was no breach of s 10(

b) of the Charter , relying on the decisions in R v Willier , 2010 SCC 37 ; R v Bray , 2012 ABQB 41 ; and R v Flight , 2014 ABCA 185 . Specifically, he held that Cst. McKenna was justified in the circumstances in “shutting down the further inquiry into a lawyer or further advice...”: Transcript, January 26, 2012, p 5, l 21-23. [ 25 ] After applying the evidence from the voir dire to the trial proper, the Learned Trial Judge convicted the Appellant of operating a motor vehicle with a blood alcohol level in excess of 80 milligrams per 100 millilitres of blood. Grounds of Appeal [ 26 ] Did the Learned Trial Judge err in applying an incorrect legal test to the issue of whether the Appellant’s

section 10(

b) Charter right was breached in the circumstances? Standard of Review [ 27 ] The parties take different positions as to the applicable standard of review in this instance. The Appellant urges the court to find that the standard of review is correctness on the basis that this appeal involves a question of pure law. According to the Appellant, the issue to be determined is whether or not the Learned Trial Judge applied an incorrect test in considering whether there had been a breach of the Appellant’s s. 10(

b) Charter rights. [ 28 ] The Respondent, on the other hand, says that the determination of whether an applicant has discharged the onus resting on them to demonstrate a breach of their s. 10 (

b) rights is one of mixed fact and law. [ 29 ] The Respondent relies on a series of decisions in this regard, including Housen v Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235 , R v Urban , 2017, ABCA 436 , R v Whitford , 1997 ABCA 85 , and R v Bourgeault , 2014 ABQB 654 . [ 30 ] In R v Urban , 2017 ABCA 436 , the Court of Appeal held (at para 13) that: A decision as to whether the Charter has been breached in a particular case is one of mixed fact and law, reviewable on a standard of palpable and overriding error, although extricable questions of law are reviewable for correctness: R c Côté, 2011 SCC 46 , [2011] 3 SCR 215 (SCC) [ 31 ] I agree with the Respondent’s contention that the application of the Charter in any given situation is largely fact-driven.

In R v Whitford , 1997 ABCA 85 , at para 9 , Berger JA held: What constitutes a reasonable opportunity to retain and instruct counsel, or reasonable diligence in contacting counsel, will vary from case to case. Courts must always consider the factual context in deciding whether the state has infringed upon a detainee’s right to counsel. R v Wood (1994), 94 CCC (3d) at 225 (NSCA), leave to appeal to SCC refused (1995), SCC Bulletin 1352. [ 32 ] In R v Bourgeault , 2014 ABQB 654 , Pentelechuk J (as she then was) offered (at paras 37-39) the following guidance relative to the standard of review applicable to a

summary conviction appeal: A

summary conviction appeal court may set aside a conviction where the verdict was unreasonable, unsupported by the evidence, or wrong on a question of law: ss 686(1)(a)(

i) and (ii). On findings of fact, the standard is palpable and overriding error. The trial judge is entitled to deference on findings of fact and factual inferences. To be interfered with on appeal, they must be clearly wrong, unreasonable or unsupported by the evidence: R v Clark, 2005 SCC 2 at para 9 , [2005] 1 SCR 6. On questions of law, the standard of review is correctness: Housen v Nikolaisen, 2002 SCC 33 , [2002] 2 SCR 235. [ 33 ] In my view, there is nothing inherently inconsistent in the respective positions of the parties on the issue of standard of review.

In approaching the issue from a somewhat different perspective, they are, I suggest, both correct. What I take from the various authorities cited by the parties is that a trial judge’s findings of fact are entitled to deference and, as such, only reviewable on the basis of palpable and overriding error.

However, the question of whether a particular set of circumstances amount to the breach of a Charter - protected right is a question of law and, as such, reviewable on a correctness standard. [ 34 ] On this appeal, I am satisfied that neither party seriously challenges any of the findings of fact made by the trial judge in this instance.

Rather, the Appellant challenges the decision on the basis that the trial Judge applied the wrong test as to his finding of fact, and thereby erred in law in concluding that no breach of the Charter had been established in the circumstances. [ 35 ] For the reasons that follow, I am not persuaded that the Learned Trial Judge erred in finding that a breach of the Charter had not been established in these circumstances.

Position of the Parties [ 36 ] The Appellant says that the Learned Trial Judge failed to consider whether the Appellant received satisfactory legal advice in circumstances in which he had clearly expressed to the arresting officer his dissatisfaction with the legal advice received. According to the Appellant, Cst. McKenna was aware that the Appellant was not satisfied with the legal advice that he had received and, as such, had

not had a meaningful opportunity to consult with counsel. Further, the Appellant maintains that he never waived his right to counsel aswas required in the circumstances before the police could proceed to obtain breath samples. The Appellant maintains that the LearnedTrial Judge erred in law in finding no breach of s 10(

b) of the Charter in such circumstances. [37] The Respondent, on the other hand urges the Court to uphold the Trial Judge’s decision finding no breach of the Appellant’sright to counsel. The Respondent maintains that the Appellant failed to show reasonable diligence in refusing Cst. McKenna’s offer offurther time to speak to a lawyer after receiving legal advice that he did not like. Further, the Respondent maintains that there was littlemore that the police could do in the circumstances other than to afford him a further opportunity to contact legal counsel. Finally, theRespondent contends that Cst.

McKenna properly discouraged any discussion with the Appellant regarding the content of the advicereceived. Analysis [38] This appeal raises important issues relating to the scope of the police’s s 10(

b) implementation responsibilities and thecorresponding obligations resting on a detainee to diligently exercise such rights. [39] An applicant bears the burden of proof of establishing a breach of her or his Charter rights: R v Whipple, 2016 ABCA 232,para 19, citing R v Cornell, 2010 SCC 31, at paras 17 and 25. [40]

Section 10(

b) of the Charter provides that “[e]veryone has the right on arrest or detention to retain and instruct counselwithout delay and to be informed of that right.” The purpose of s 10(

b) is to mitigate the legal disadvantage of an individual whenfacing the significant power of the state. This is accomplished by providing “detainees with an opportunity to contact counsel incircumstances where they are deprived of liberty and in the control of the state, and thus vulnerable to the exercise of its power and in aposition of legal jeopardy”: R v Willier, 2010 SCC 37, at para 28. [41] The underlying facts in Willier are important to a fulsome understanding of the Supreme Court’s decision. Willier wasarrested for murder.

He was advised of his right to counsel following his arrest and had a brief telephone conversation with duty counsel.The next day, he was given an opportunity to speak to counsel again. He left a message when he was unsuccessful in attempting to reacha specific lawyer, leaving a message for that lawyer. The police then asked him if he wished to speak to another lawyer. He advised thathe preferred to wait to hear back from his counsel of choice. The police then advised Willier that his counsel of choice would not likelybe available until the following day given that his office was closed.

The police then advised that Legal Aid counsel would be availableat any time. Willier then elected to speak to duty counsel a second time and had a brief conversation with the Legal Aid duty counsel. [42] The police opted to interview Willier less than an hour after his second telephone call with Legal Aid duty counsel. At theoutset of the interview, the police provided him with another opportunity to contact counsel before continuing with the interview.However, Willier indicated that he was satisfied with the advice he had received from the Legal Aid lawyer.

The police advised him thathe could call a lawyer at any time during the course of the interview and that he simply had to indicate that he wanted to stop theinterview to make a telephone call to counsel. Willier then provided a lengthy statement to the police describing his involvement in thedeath of the victim. [43] The statement was excluded at trial on the basis that the police had breached Willier’s s. 10(

b) Charter rights. The trialjudge concluded that the police had actively discouraged Willier from waiting for a call back from his counsel of choice. The trial judgealso found that, given the absence of investigative urgency, the failure of the police to hold off in conducting an interview until Willierhad an opportunity to speak to his counsel of choice amounted to a breach of s. 10(b). The trial judge held that the two brief telephoneconversations with Legal Aid duty counsel were insufficient to provide a meaningful opportunity to retain and instruct counsel.

Onappeal, a majority of the Alberta Court of Appeal allowed the appeal, reversed the acquittal and directed a new trial. A further appeal tothe Supreme Court was dismissed. [44] The Supreme Court made a number of findings that are relevant to the within matter. First, the majority decision of McLachlinCJ and Charron J clarified the circumstances in which a Prosper warning is required. At para 38, the majority held: The circumstances prompting this Court to articulate the additional informational duty in Prosper [R v Prosper , (SCC),[1994] 3 SCR 236] are fundamentally different from those in the case at hand.

As noted above, a Prosper warning is warranted incircumstances where a detainee is diligent but unsuccessful in contacting a lawyer and subsequently declined any opportunity to consultwith counsel.… The Prosper warning ensures that detainees are aware that their right to counsel is not exhausted by their unsuccessfulattempts to contact a lawyer. [45] One of the arguments advanced in the within appeal is that the Appellant never waived his right to counsel prior to beingrequired to provide samples of his breath pursuant to the demand previously made by the arresting officer.

As such, the Appellantappears to be suggesting that the circumstances required the police to provide a Prosper warning. Further, the Appellant suggests thatdissatisfaction with the content of the legal advice received is the factual equivalent of a situation involving unsuccessful attempts toreach a lawyer. In both instances, the Appellant urges the Court to find that the police, absent a valid waiver, are required to refrain fromeliciting evidence from the detainee until he or she receives satisfactory legal advice.

For the reasons that follow, I am not persuaded thatthe two scenarios are factually equivalent and, moreover, that the duties resting on the police are the same in both situations. [46] The majority in Willier addressed the obligations resting on the police to monitor the “quality” of the legal advice received bya detainee. At para 41-42, they held: 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 relation makes it untenable for the police to be responsible, as arbiters,for monitoring the quality of legal advice received by a detainee. To impose such a duty on the police would be incompatible with the

privileged nature of the relationship. The police cannot be required to mandate a particular qualitative standard of advice, nor are theyentitled 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 G.D.B, 2000 SCC 22, [2000] 1 SCR 520, at para 27, there is a “wide range ofreasonable professional assistance”, and as such what is considered reasonable, sufficient, or adequate advice is ill-defined and highlyvariable. As noted, s 10(

b) aims to ensure detainees the opportunity to be informed of their rights and obligations, and how to exercise them.However, unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assumethat the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview. In this case,despite the brevity of Mr. Willier’s conversations with Legal Aid, Mr. Willier gave no indication that these consultations wereinadequate.

Quite the contrary, he expressed his satisfaction with the legal advice to the interviewing officer, prior to questioning. Mr.Willier is not entitled to express that satisfaction, remain silent in the face of offers from the police for further contact with counsel,remain silent in the voir dire as to the alleged inadequacies of the actual legal advice received, and then seek a finding that the advicewas inadequate because of its brevity. A s. 10(

b) Charter breach cannot be founded upon an assertion of the inadequacy of Mr. Willier’slegal advice. [47] As outlined above, the trial judge in this instance made a finding of fact that the Appellant was not satisfied with the legaladvice that he received in that he did not like the advice. This was not a situation in which a detainee had been unable to reach counsel toobtain legal advice so as to give rise to the possible need for a Prosper warning. [48] The factual construct in this case is, in my view, also very different from that facts before the Supreme Court in Willier.

Thedecision is, nonetheless, instructive in terms of the decision’s directions to the police regarding their role in monitoring the adequacy ofthe advice received from counsel. In my view, the decision makes it very clear that the police are not permitted to inquire into the contentof the legal advice received. Likewise, they are not required to monitor the quality of the advice provided to a detainee. A detainee whois dissatisfied, for whatever reason, with the quality or content of the legal advice received cannot look to the police for guidance oradvice in such circumstances.

The legal advice received is privileged communication. As such, the responsibility for how to implementthat advice rests entirely with the detainee. [49] In R v Luong, 2000 ABCA 301, the Court of Appeal provided directions to trial courts in Alberta on the proper approach tothe analysis and assessment of an alleged breach of s 10(

b) of the Charter. While the 11 key points articulated by the Court of Appealshould, in my view, be considered in their entirety, I reproduce only those which directly apply to the facts of the within matter. At para12, Berger JA, for the Court, set out the following principles relative to the determination of whether or not the state has met its dutyunder 10(b):

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 the existenceand 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 in urgent anddangerous 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. 8.

If the trial judge concludes that the first implementational duty was breached, an infringement is made out. [50] The Crown has the burden of proving that the Appellant had a reasonable opportunity to exercise the right to counsel. If theCrown satisfies this requirement, the burden shifts to the Appellant to establish that he was reasonably diligent in exercising his rights:Luong at para 12. [51] In this case, the fulfilment of the state’s informational duties is not at issue. When Cst.

McKenna arrested the Appellant, heread him the standard police warning and informed him of his right to retain and instruct counsel without delay and of the existence ofLegal Aid. Rather, the Appellant argues that Cst. McKenna did not satisfy his implementational duties by refusing to give the Appellanta further opportunity to speak with counsel after clearly stating his dissatisfaction with the legal advice received. [52] An accused’s right to contact counsel of choice plays an important role in determining the reasonableness of an accused’sopportunity to contact and retain counsel upon arrest.

In R v Ross, (SCC), [1989] 1 SCR 3 the Supreme Court held thatan accused has a right to speak to counsel of his or her choice. However, recent jurisprudence confirms that this right is not withoutlimitation. In Willier, the Supreme Court held: 24 As indicated at the outset, the focal point in this appeal is the right to counsel of choice under s 10(

b) of the Charter and thecorresponding obligations on the police to facilitate that choice. While the right to choose counsel is certainly one facet of the guaranteeunder s 10(b), the Charter does not guarantee detainees an absolute right to retain and instruct a particular counsel at the initialinvestigative stage regardless of the circumstances. What the right to counsel of choice entails must be understood having regard to thepurpose of the guarantee. 35 Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s 10(

b) entitles them to a reasonable

opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees havethe right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amountsto a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the chargeand the urgency of the investigation: Black.

If the chosen lawyer cannot be available within a reasonable period of time, detainees areexpected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended: R v Ross, (SCC), [1989] 1 S.C.R. 3 and Black. [53] Barring any urgency, danger or unequivocal waiver, a detainee is entitled to as much time as was required in order to have areasonable opportunity to speak to his counsel of choice. In this instance, both parties agree that the investigation was not so urgent as topostpone the Appellant’s right to consult counsel.

The Appellant had not been detained for a long period of time and, as such, there wasno immediate risk to the gathering of evidence. [54] While the various cases which discuss s 10(

b) in the context of a detainee seeking to consult counsel of choice are instructive,they are not determinative of the within matter. In this instance, the Appellant never asked to consult a particular counsel. Rather, heexpressed dissatisfaction or disagreement with the content of the advice he received from the counsel he was ultimately able to reachfollowing an earlier unsuccessful attempt to make contact with a lawyer. [55] The Appellant’s expression of displeasure or a lack of agreement with the content of the advice received did not render thatlegal advice inadequate.

As Kenny J stated in R v Bray, 2012 ABQB 41, “[i]t may be that he simply does not like the advice given bycounsel”: at para 25. Indeed, in this instance, Cst. McKenna testified that the Appellant expressed his dislike for the legal advicereceived. [56] There was no evidence before the Learned Trial Judge of any deficiency in the legal advice received by the Appellant or hisunderstanding of his legal options.

He simply did not agree with the advice, or was unhappy with the content of that advice. [57] The decision to accept and follow the legal advice received is a matter that lies entirely in the hands of the suspect or detainee.The police have no role to play whatsoever in this process. If a detainee expresses dissatisfaction with the advice received, this does notcreate an obligation on the police to ascertain the detainee’s satisfaction with the advice received. The Respondent correctly points outthat such questioning invites a discussion on the substance of that advice.

As the SCC held in Willier, the police are not required tomonitor the quality of the legal advice once contact has been made: at para 41. [58] In my view, there is an important difference between dissatisfaction with the opportunity afforded to a detained person by thepolice to consult with legal counsel and dissatisfaction with the substance of the legal advice received.

The role of the police is, I suggest,clear in the first instance and involves a continuing implementational duty to afford the detainee with an opportunity to consult counsel.The dissatisfaction in such circumstances relates to making effective contact with a lawyer in order to obtain legal advice. [59] Circumstances involving dissatisfaction with the substance of legal advice received, as evidenced in this matter, may or maynot impose additional implementational obligations on the part of the police.

It is not, strictly speaking, necessary for me to decide thescope, if any, of the implementational duty resting on the police in the face of a detainee expressing dissatisfaction with the content of thelegal advice she or he has received. In this instance, Cst. McKenna offered the Appellant a further opportunity to try and contact anotherlawyer upon learning of the Appellant’s discontent with the advice he had received.

While doubtless good police practice, whether or notthe police were required to make such an offer under the circumstances is an issue to be resolved in another case. [60] The trial Judge made a finding of fact that Cst. McKenna immediately offered the Appellant more time to try and exercise hisright to counsel after he learned of the Appellant’s dissatisfaction with the advice he had received. The trial judge also found that theAppellant had at no time expressed any desire to take up this opportunity.

Implicit in these findings is the trial judge’s conclusion that theAppellant was not reasonably diligent in exercising this further opportunity afforded him. Indeed, the trial judge’s findings make it clearthat the Appellant took no steps to pursue the offer of additional time extended by Cst. McKenna. [61] Constable McKenna had very limited options when the Appellant expressed disagreement or unhappiness with the legaladvice he had received. In his earlier experience with the Appellant, Cst.

McKenna declined to provide advice when requested to do so.In this instance, he demonstrated his awareness that he could not inquire into the content of privileged legal advice. [62] When a detainee fails to take an opportunity for further access to legal advice, he cannot demonstrate that he diligently andreasonable communicated the adequacy of the advice received. In such circumstances, the cases that have considered this matter haveconcluded that no breach of s. 10(

b) had been established. [63] The Appellant had no reason to believe that Cst. McKenna would not give him more time if he wanted more time. After heexpressed his frustration at not being able to reach counsel during his first session in the telephone room, Cst. McKenna providedadditional assistance and gave him more time. When he emerged the second time and expressed his unhappiness with the legal advice hehad received, Cst. McKenna again offered him additional time. In both instances, the Appellant knocked on the door of the telephoneroom signalling that he had completed his efforts to contact counsel.

After receiving the legal advice that he did not like, there wasnothing preventing the Appellant from remaining in the telephone room and continuing to reach out to other counsel if he had wished todo so. [64] The Appellant was diligent at the beginning but in advancing this alleged breach of s. 10(

b) he fails to show he wasreasonably diligent when he emerged from the telephone room the second time, expressed a lack of agreement with the advice hereceived, but did not follow up on the offer to return to the phone room. [65] Nothing prevented the Appellant from accepting the invitation to continue to seek the advice of counsel or making a request todo so. His silence shows either a grudging satisfaction with the advice received or a lack of diligence in exercising his right to counsel.The Respondent maintains that either would end the implementation window and the police duty to hold off in the pursuit of theirinvestigation.

[ 66 ] The Appellant places significant emphasis on the fact that in cross-examination Cst. McKenna appears to acknowledge that he shut down any further discussion about additional time to contact counsel once he confirmed that the Appellant had actually spoken to counsel. As such, Cst. McKenna testified that he was, up until posing this direct question, uncertain whether or not the Appellant had actually reached a lawyer. [ 67 ] The Appellant’s suggestion that Cst. McKenna breached the Appellant’s s 10(

b) rights when he shut down the implementational stage of the process ignores the trial Judge’s finding of fact that Cst. McKenna offered the Appellant more time immediately upon learning of the Appellant’s dissatisfaction with the advice he received. This was a critical finding of fact by the trial judge, amply supported by the evidence before him and not challenged in this appeal. I agree with the Respondent that Cst.

McKenna’s offer of more time is a critical fact in this case. [ 68 ] In my view, the learned trial Judge correctly concluded that there was no breach of the Appellant’s right to counsel in such circumstances. As such, he correctly concluded that once the Appellant failed to take Cst. McKenna up on his offer of additional time, Cst.

McKenna was justified in shutting down this part of the process, including discussion about the content of the legal advice received, and moving on to the collection of breath samples from the Appellant. [ 69 ] Counsel for the Appellant has referred me to a number of other decisions, including R v Strongman , 2007 ABQB 69 , R v Paisley , 2016 ABQB 152 , R v Jaswal , 2011 ABPC 207 , R v Lebada , 2019 ONCJ 834 and R v Girbav , 2012 ABPC 2019 . In my view, all of these decisions are distinguishable on their facts and do not provide much guidance in this instance.

Conclusion [ 70 ] For the reasons set out above, I am not persuaded that the Learned Trial Judge erred in law in finding that there was no breach of the Appellant’s s 10(

b) rights in this instance. The appeal is, accordingly, dismissed. Heard on the 13 th day of July 2021. Dated at the Town of Hinton, Alberta this 1 st day of October, 2021. M. David Gates J.C.Q.B.A. Appearances: J. Edgett for the Appellant A. Rankin for the Respondent