R. v. Chahal, 2022 ONCJ 26

CITATION: R. v. Chahal , 2022 ONCJ 26 COURT FILE No.: 0611-998-19-1274 DATE: January 21, 2022 ONTARIO COURT OF JUSTICE Central West Region BETWEEN: HER MAJESTY THE QUEEN — AND — gurinderpreet chahal Heard Before Mr. Justice Richard H.K. Schwarzl at Orangeville on November 18 and December 2, 2021 Reasons released on January 21, 2022 Mr. Chris Presswood ........................................................................................... for the Crown Mr.

Harmanjeet Singh Bal.............................................................................. for the Defendant SCHWARZL, J.: REASONS FOR JUDGMENT 1.0: INTRODUCTION [ 1 .] On November 3, 2019 the Defendant, Gurinderpreet Chahal, was driving a car in a parking lot when he was stopped by the police. As a result of that encounter, the defendant was charged with a single count of driving with excess blood alcohol, contrary to

section 320.14(1) (

b) of the Criminal Code . There is no dispute that the defendant’s blood alcohol concentration at the time of testing was 120 milligrams of alcohol per one hundred millilitres of blood. [ 2 .] If the defendant persuades me that it was more likely than not that his rights pursuant to sections 9 or 10 of the Canadian Charter of Rights and Freedoms were violated by the police, he submits that the breath test results should be excluded, resulting in the charge being dismissed.

If I dismiss both Charter claims, I would not exclude the breath test results and I would find him guilty. 2.0: WAS THE DEFENDANT ARBITRARILY DETAINED? 2.1: Relevant Facts Regarding the Stop [ 3 .] At around 2:00 a.m. on November 3, 2019 P.C. Chambers was dispatched to a disturbance at a local country club. The complaint was that two South Asian men, one of whom was wearing a suit and a turban, were arguing with a DJ. [ 4 .] On his arrival, the officer saw a yellow Corvette occupied by two South Asian men heading out of the parking lot.

At that time, the officer did not see any other cars, but later learned more were parked behind the venue. P.C. Chambers flashed his rooftop lights as a signal for the car to halt. He stopped the car because it was leaving proximate in both time and place to the complaint. The officer wanted to learn if the occupants were involved in, were witnesses to, or otherwise had information about, the disturbance complaint. At the time, P.C. Chambers had no reason to believe the occupants had committed any offence.

[5.] When asked if he stopped the car on a hunch, P.C. Chambers stated, “Hunch is not the right word. I believed the occupantscould help me in my investigation of the alleged disturbance.” P.C. Chambers agreed that the occupants were not free to leave until hespoke to them and that he had detained them pursuant to his investigation. [6.] P.C. Chambers spoke to the driver who was the defendant. Neither the defendant nor his passenger was wearing a suit or aturban. The officer advised the defendant that he was there responding to a disturbance complaint.

The officer did not remember thedefendant’s exact response but recalled the defendant confirmed that there was a disruption at the venue and that he and his passengerwere just leaving. [7.] While speaking with the defendant, the officer noticed the smell of alcohol on the defendant’s breath. The defendant admittedto recent alcohol consumption. The officer then made a screening demand. The defendant complied and failed the test, leading to hisarrest for the offence before the court. 2.2: Positions of the Parties [8.] The defendant submits that P.C. Chambers was not acting lawfully when the officer stopped him.

The officer was respondingto a complaint involving two South Asian men. The defendant and his passenger are South Asian, but beyond that neither of themmatched the description of the people involved in the complaint. The defendant submits that he was detained within the meaning ofsections 9 and 10 of the Charter. [9.] The Crown submits that the officer was acting lawfully when he stopped the defendant’s car because he had a legitimatepurpose to see if the occupants were involved in the disturbance or had any relevant information to assist his investigation into thecomplaint.

The Crown argues that the detention, if any, was not of such a quality as to engage the defendant’s constitutional rights. 2.3: Applicable Legal Principles [10.] For

section 9 of the Charter, “detention” requires significant deprivation of physical or psychological liberty. For

section 10 ofthe Charter, “detention” exists when the deprivation of liberty may have legal consequences. This context requires exclusion of policestops where the subject's rights are not seriously in issue: R. v. Therens (1985), (SCC), 18 C.C.C. (3d) 481 (S.C.C.) at p.503; R. v. Grant, 2009 SCC 32 , [2009] S.C.J. No. 32 (S.C.C.) at ¶ 29; R. v. Suberu (2009), 2009 SCC 33 , 245 C.C.C.(3d) 112 (S.C.C.) at ¶ 21-22; R. v.

Le, 2019 SCC 34 , [2019] 2 S.C.R. 692 (S.C.C.) at ¶ 25 and 26. [11.] “Significant physical or psychological restraint" is a gateway to rights under sections 9 and 10 of the Charter because it strikesan important balance between ensuring that individuals are protected from unjustified state interference, while at the same time makingsure that the societal interest in effective policing is not threatened.

A failure to consider whether the police-citizen interaction involvesa "significant deprivation of liberty" may result in both overshooting the very purpose of the Charter provision and undervaluing thepublic's interest in effective policing. The purpose of s. 9 is not to make individuals immune from state contact, but to ensure that, wherea state agent detains an individual within the legal meaning of that term, the detention can be justified upon appropriate grounds: R. v.Reid, [2019] O.J. No. 288 (C.A.) at ¶ 24 – 26; R. v.

Le, ¶ 27. [12.] Examples of where sections 9 and 10 are not engaged include situations where the police are acting in a non-adversarial role andassisting members of the public in circumstances commonly accepted as lacking the essential character of a detention. In many commonsituations, reasonable people understand that the police are not constraining individual choices, but rather helping people or gatheringinformation. For instance, the reasonable person would understand that a police officer who attends at a medical emergency on a 911 callis not detaining the individuals he or she encounters.

This is so even if the police in taking control of the situation, effectively interferewith an individual's freedom of movement. Such deprivations of liberty will not be significant enough to attract Charter scrutiny becausethey do not attract legal consequences for the concerned individuals: R. v Grant, ¶ 36. [13.] Another example is where police approach citizens to seek information to assist the them in legitimate investigations.

Section 9of the Charter does not require the police to abstain from interacting with members of the public until they have specific grounds toconnect the individual to the commission of a crime. Nor does s. 10 require that the police advise everyone at the outset of any encounterthat they have no obligation to speak to them and are entitled to legal counsel: R. v. Grant, ¶ 37 – 39; R. v Calder, [ (ON CA), 2004] O.J. No. 451(C.A.). 2.4: Analysis

[ 14 .] In the case at bar there is no doubt that the defendant was detained in the sense of being delayed and his movements were restricted by the officer. However, for reasons I will explain, I find that the defendant has failed to establish on a balance of probabilities that his rights under

section 9 and 10 of the Charter were engaged prior to his arrest. [ 15 .] First, P.C. Chambers was acting in the lawful execution of his duties. He had an obligation to make inquiries to assist him in his investigation of the disturbance complaint including stopping cars or pedestrians he encountered. P.C. Chambers was not targeting the defendant. He was not acting on a mere hunch but reasonably felt the occupants of the car could have relevant information about the complaint given that the car was proximate to the time and place of the disturbance.

Since it was the only car visible at the time, it was reasonable for the officer to think that the occupants may have relevant information about the events complained of. [ 16 .] Second, the officer told the defendant why he was stopped, namely the disturbance complaint. His inquiry was brief and unobtrusive and did not place the defendant in a position where he would be forced to compromise his choices in the face of police direction or demands regarding the disturbance. [ 17 .] Third, the interaction happened in an area open to the public and was not the private property of the defendant.

The officer had as much right to be there as the defendant. [ 18 .] Fourth, P.C. Chambers was not forceful, coercive, intimidating, or adversarial with the defendant. To the contrary, he always appears to have been professional at all times. [ 19 .] Fifth, given the defendant’s answer that there was a confrontation inside the venue and he was just leaving, it is likely that his encounter with the officer would have been very brief but for the subsequent smell of alcohol on the defendant’s breath that led to a criminal investigation of the defendant.

In other words, the interference with the defendant’s liberty was not significant until he was arrested at which point he received his rights. [ 20 .] The situation in this case falls squarely into those examples described by the Supreme Court in Grant , supra, wherein there was no detention within the meaning of sections 9 or 10 of the Charter because there was no significant deprivation of his physical or psychological liberty. [ 21 .] The defendant’s Charter application regarding his interaction with police in the parking lot is therefore dismissed. 3.0: WAS THE DEFENDANT’S RIGHT TO COUNSEL VIOLATED POST ARREST? 3.1: Relevant Facts [ 22 .] Just prior to the defendant being stopped by P.C.

Chambers, the clocks fell back at 2:00 a.m. by one hour reflecting the change from Daylight Saving Time to Eastern Standard Time. To be consistent, when I refer to times in my reasons, they are expressed in Daylight Saving Time as if the change had not occurred. [ 23 .] When speaking with the defendant in the parking lot, P.C. Chambers noted the defendant’s breath smelled of alcohol.

The defendant also admitted to consuming alcohol a few hours earlier. [ 24 .] At 2:06 a.m. the defendant failed a screening test and was promptly arrested for the offence at bar. [ 25 .] At 2:08 a.m. the defendant was read his rights to counsel from the police-issued card. When asked if he understood, the defendant first replied, “Can we talk about it at the side?” before acknowledging he understood his right to counsel. When asked if he wanted to speak with a lawyer now, he said “I have to call my brother and see.

I want to talk to my family first, then a lawyer.” Within moments, the passenger provided the phone number and name of a lawyer, Mr. Hendrick. The defendant changed his mind and said he wanted to speak with Mr. Hendrick. [ 26 .] Shortly thereafter, the defendant was driven directly to the police station where he was booked and lodged beginning at 2:31

a.m. Following the booking process, P.C. Chambers called Mr. Hendrick at 2:57 a.m. after finding the lawyer’s website and confirming the telephone number. An answering machine received the call. The officer left a message for Mr. Hendrick that the defendant wanted to speak with him at the Caledon police station by calling the number the officer provided. P.C. Chambers advised the defendant that he tried the lawyer but had to leave a message. [ 27 .] P.C. Chambers did not ask the defendant if he had an alternate number for Mr. Hendrick . P.C.

Chambers did not ask the defendant if he want to call a different lawyer nor did he ask the defendant if he wanted to call a third party to get access to a private lawyer. P.C. Chambers did, however, tell the defendant that if he wanted, he could speak with duty counsel. The defendant responded in the negative because, “They work for you.” P.C. Chambers explained that duty counsel does not work for the police and explained their role in detail to the defendant by telling him that duty counsel were free lawyers that any person involved in a criminal case could speak to. P.C.

Chambers felt that the defendant understood that duty counsel were not police lawyers and no evidence was led to the contrary. [ 28 .] At 3:05 a.m., P.C. Chambers delivered the defendant to P.C. Bucsis, who was the on-duty qualified technician. Moments later at 3:06 a.m. P.C. Chambers called Mr. Hendrick again, being eight minutes after the first call. Once again, the call rang through to an answering machine whereupon the officer left a similar message to the one he had given earlier. P.C.

Chambers believed that calling again inside of ten minutes after the first call was reasonable because he wanted to get hold of the lawyer right away. At no time did P.C. Chambers inform the defendant or the breath technician of the second call or its details because he did not want to interrupt the breath test procedures. [ 29 .] The time spent by the defendant with P.C. Bucsis was recorded on video. A DVD and a transcript of the interactions relevant to the Charter application were made trial exhibits. [ 30 .] The following excerpts of the conversation between P.C.

Bucsis and the defendant are relevant to the Charter application: Q: Have you spoken to a lawyer in private? A: No. Q: Okay. Do you want to speak with a lawyer in private? A: Well, he asked for [inaudible] pick me up at this time so I just want to go home. Q: Now we can wait, we can wait to see if the lawyer’s going to call back. I mean, it’s two in the morning. A: That’s why I know they’re not going to call me back. Q: Okay. Do you want to talk to duty counsel? A: I don’t want to talk to duty counsel. I want to talk to a lawyer. Q: You want to talk to a lawyer? A: Only, yeah.

Q: Well, that’s what duty counsel is. Duty counsel are lawyers. A: Duty counsel is your guys’ lawyers. Q: No, they’re not. Why would they by our guys? A: Um, I don’t know. To be honest, I don’t know anything about duty counsel. Q: Oh, okay. So let me read something to you. Actually, it’s right there [pointing to the wall inside the breath room]. So, you have right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer.

If you’re charged with an offence, you may apply to the Ontario Legal Aid Plan for assistance. 1-800- [inaudible] is a number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice right now. Do you understand that? A: Yeah. Q: Okay. So, duty counsel are free counsel lawyers who provide advice to people when they get arrested who don’t have their own lawyers. Not everyone has their own lawyers. A: Yeah. Q: We call this…there’s people on standby in the province who give advice to people over different things that they’re arrested for. So, they don’t work for us.

That’s a conflict of interest if they worked for us. How would that make sense?

A: Yeah. Q: Right? That wouldn’t make, that wouldn’t work out if they’re on our side. So, you can talk to a duty counsel lawyer and get free legal advice from them. You can wait to see if your lawyer’s going to call back, though you’ve indicated they’re most likely not going to call back because it’s, well, I say 2:00, but because of the time change it’s really 3:00. So, it’s even later than what it is, right? A: Well, say if I were to talk to either or, like do I still get time ‘til the morning or something? I don’t know. Q: Do you still what? A: Get time for the, ‘til the morning? Q: Time ‘til the morning?

What does that mean? A: Like, ‘til the morning, say if my lawyer calls back in the morning, like say if I were to talk to either or, say if my guy… Q: You can talk to your lawyer like, later, if you want. A: No. I’m saying my guy doesn’t call back right now… Q: Yeah? A: …and I don’t want to talk to duty counsel… Q: Yeah? A: …like I have to stay here until some… Q: No. We got to do the tests. A: Okay. Q: The tests have to happen… A: Okay. Q: …in a reasonable time. A: Yeah. Q: Right? We can’t wait… A: Yeah, yeah. Q: …twelve hours until he wakes up. A: No.

I’m saying even if the, like, after the, like do I have stay here, like, do I have to stay here, like, until something happens or do I still get released or something? Like, after the test. Q: So, after the test you’re going to go home regardless. You, you’re not staying here tonight. A: Okay. Q: Yeah, after the tests you’re going home, so there’s no reason to hold you here at the police station. You’re going home…. …. Q: Okay. So you can talk to duty counsel for free legal advice. A: Yes, sir. Q: You don’t want to? [defendant shakes head] Okay. A: No.

Q: Well, if you change you mind at any time, tell me or tell another officer, okay? Otherwise, I’m going to proceed with doing the tests, okay? [ 31 .] P.C. Bucsis then took two breath samples from the defendant. The first was at 3:19 a.m. being twenty-two minutes after the first call to Mr. Hendrick, and thirteen minutes after the second call to Mr. Hendrick. P.C. Bucsis did not ask the defendant if he wanted to call another private lawyer nor did he ask the defendant if he wanted to call a third party to access one.

[32.] At no time did Mr. Hendrick call the police station. P.C. Bucsis agreed that sometimes lawyers call back in the very early hours. [33.] At no time did the defendant ask to speak to another private lawyer nor did he ask to speak with a third party to access a privatelawyer. [34.] The defendant offered no evidence on the Charter application. 3.2: Positions of the Parties [35.] The defendant submits that his right to counsel was violated by the police failing to adequately assist him in implementing thoserights. They submit that P.C.

Chambers made two calls in rapid succession within only ten minutes between calls. They submit P.C.Chambers’ failure to tell the defendant about the second call to counsel deprived him of adequate information upon which to make adecision regarding his rights. They submit the police should have waited longer for Mr. Hendrick before proceeding with the breathtests. They submit the police should have given the defendant an opportunity to call another lawyer or a third party.

Lastly, they submitthe defendant’s rights were violated by the police improperly steering him to duty counsel. [36.] The Crown submits that even if P.C. Chambers should have told the defendant about the second call to Mr. Hendrick, the policeacted with reasonable diligence to facilitate his rights in the circumstances. They submit the police took a series of reasonable steps in atimely way and that the police never ignored their duties towards the defendant. They submit that the evidence demonstrates that thedefendant believed it was unlikely that Mr.

Hendrick would call back and that he was not diligent in pursuing his rights, in particular bynot asking to call another lawyer or third party or accessing duty counsel when the police made it clear that duty counsel was not a policeagent. 3.3: Applicable Legal Principles [37.] Where the police assist the detainee, or control the means of exercising his rights to counsel, the police must be reasonablydiligent, which is the same standard to which the detainee is held if he was implementing his rights on his own: R. v. Wilding, 2007ONCA 853 , [2007] O.J. No. 4776 (C.A.); R. v. Vernon, 2015 ONSC 3943 , [2015] O.J.

No. 4157 (S.C.J.), leave toappeal refused 2016 ONCA 211; R. v. O’Shea, [2019] O.J. No. 1178 (S.C.J.). [38.] While the police must be reasonably diligent in assisting the detainee in exercising his rights to counsel, they are not required toexhaust all reasonable means for the detainee to speak with a lawyer: R. v. Winterfield, 2010 ONSC 1288 , [2010] O.J. No. 952(S.C.J.) ¶ 46 – 67; R. v. Sharma, [2004] O.J. No. 2991 (S.C.J.); R. v. Canavan, [2019] O.J.

No. 3491 (C.A.). [39.] Having consideration for the circumstances of each case, the test is not whether the police could or should have done more, butrather whether the police provided the detainee with the necessary information and assistance to allow him to properly exercise hisrights: R. v. Gentile, [2008] O.J. No. 3664 (S.C.J.) at ¶ 24; R. v. Blackett, [2006] O.J. No. 2999 (S.C.J.) at ¶ 23 – 24, and 29; R. v.Antoninas, 2014 ONSC 4220 , [2014] O.J. No. 5226 (S.C.J.) at ¶ 93; R. v. Vernon, supra; R. v. Wijesuriya, [2020] O.J. No. 855(S.C.J.); R. v. Persaud, [2020] O.J.

No. 2619 (S.C.J.). [40.] A detainee is required to be reasonably diligent in the pursuit of his rights: R. v. Leclair and Ross (1989), (SCC), 46 C.C.C. (3d) 129 (S.C.C.) at p. 135; R. v. Littleford, (ON CA), [2001] O.J. No. 2437 (C.A.); R. v. Richfield(2003), (ON CA), 178 C.C.C. (3d) 23 (Ont. C.A.); R. v. Clarke, (ON CA), [2005] O.J. No. 1825(C.A.) at ¶ 31-33; R. v. Van Binnendyk, [2007] O.J. No. 2899 (C.A.); R. v.

Willier, 2010 SCC 37 , [2010] 2 S.C.R. 429 (S.C.C.)at ¶ 35. [41.] Where a detainee wants to call a specific lawyer or a third party to access counsel, he has a duty to tell the police who he wantsto call and why: R. v. Williams, [2014] O.J. No. 2559 (C.A.) at ¶ 39; R. v. Johnston (2004), 2004 BCCA 148 , 183 C.C.C. (3d)157 (B.C.C.A.); R. v. Antoninas, 2014 ONSC 4220 , [2014] O.J. No. 5226 (S.C.J.); R. v. Cheema, 2018 ONSC 229 ,[2018] O.J. No. 121 (S.C.J.) at ¶ 31; R. v. Mumtaz, [2019] O.J.

No. 229 (S.C.J.) at ¶ 25 – 28. [42.] Where counsel of choice is not immediately available, a detainee is entitled to wait a "reasonable amount of time" for theircounsel of choice to respond: R. v. Willier at ¶ 35; R. v. McCrimmon, 2010 SCC 36 , [2010] 2 S.C.R. 402 at ¶17-18. What is a

reasonable amount of time to wait depends on the circumstances of the case as a whole and may include factors such as the availabilityof duty counsel, the seriousness of the charge and the urgency of the investigation: R. v. Willier at ¶ 35. In some instances, a reasonableperiod of time may stretch hours or overnight, whereas in other instances, it will be much shorter, even minutes. The requirement to waita reasonable time for counsel of choice to respond results in a holding off period.

During this time, it is impermissible for the police toengage the detainee in evidence gathering techniques such as participating in an interview or the taking of breath samples: R. v. Willier,at ¶ 33. [43.] Where a detainee who is unable to reach counsel of choice waives the right to counsel entirely and elects to simply proceed withthe evidence gathering technique, the police are required to give an additional caution prior to proceeding: R. v. Prosper, (SCC), [1994] 3 S.C.R. 236 (S.C.C.) and R. v. Fountain, 2017 ONCA 596 , [2017] O.J. No. 3664 (C.A.), at ¶ 27 to 30.

Thisadditional caution involves advising the detainee that he or she has the right to a reasonable opportunity to contact counsel of choice, andthat the police will hold off on obtaining evidence until the detainee has had a reasonable opportunity to do so. The aim of the caution isto ensure that the detainee's decision to forgo the right to counsel and participate in evidence gathering is not related to the immediateunavailability of a lawyer: R. v. Willier, at ¶ 32.

In other words, the caution is aimed at ensuring that the detainee understands thatdetainees are aware that his right to counsel is not exhausted by unsuccessful attempts to contact a lawyer. This additional informationalsafeguard is warranted when a detainee indicates an intent to forego s. 10(b)'s protections in their entirety, ensuring that any choice to doso is fully informed: R. v. Willier, at ¶ 38. [44.] If the detainee is not reasonably diligent in exercising the right to counsel, the duty to hold off will be suspended and the policemay attempt to elicit evidence from the detainee: R. v.

Bartle, (SCC), [1994] 3 S.C.R. 173, at p. 192; R. v. Brydges, (SCC), [1990] 1 S.C.R. 190, at p. 204. The obligation on the police to make efforts to facilitate contact with counsel will alsobe suspended in these circumstances: R. v. Willier, at ¶ 43-44. The right to receive a Prosper warning at the time will also be lost becausethere is no need to advise a detainee of what they will lose if they waive their right to consult counsel without delay where the detaineehas already forfeited that right by not being reasonably diligent in exercising it. [45.] The burden of proof in establishing a breach of one’s 10(

b) Charter rights rests with the defendant on a balance of probabilitiesbecause the police are deemed to have honoured those rights. The defendant is not obligated to testify, but failure to do so deprives theCourt of direct evidence of how the defendant perceived, or understood, their rights: R. v. Littleford, at ¶ 8; R. v.

Ibrahim, [2016] O.J.No. 1199 (S.C.J.). 3.4: Analysis [46.] For the following reasons, I find that the defendant has failed to establish that his right to counsel was probably breached by thepolice following his arrest. [47.] First, the police were reasonably diligent in implementing the defendant’s right to counsel. On confirming the lawyer’s phonenumber, P.C. Chambers called and left a message for the lawyer shortly before 3:00 a.m. The officer made a second call eight minuteslater because he wanted to try to facilitate contact as soon as possible.

While it would have been preferable that the defendant was toldabout the second call, it is moot in this case given what happened in the breath room. There is no doubt that P.C. Chambers made goodfaith efforts to connect the defendant to Mr. Hendrick, even if those efforts took place over a short time. [48.] Second, inside the breath room P.C. Bucsis told the defendant that a message had been left for his lawyer and they could wait tosee if the lawyer would call back.

The reference to the hour by the officer was not said to override the need to wait a reasonable time, butwas instead was a statement of the obvious which was that given the time of day it was unlikely the lawyer was going to call. Eventhough P.C. Bucsis agreed lawyers sometimes do call back in the middle of the night, the reasonable corollary of this is that they usuallydon’t. The defendant acknowledged to the officer it was unlikely that the lawyer would return the call due to the time of day. Giventhese circumstances, it was reasonable that the defendant should have considered an alternative to Mr. Hendrick.

The police advised thatduty counsel was free and immediately available to him. [49.] Third, as in Willier, the defendant was not told that he could not wait to hear back from Mr. Hendrick, or that Legal Aid was hisonly recourse. There is no indication that a suggestion to call duty counsel was the product of coercion or “channelling” by the police.The police complied with their duty to make sure that the defendant was aware of the availability of duty counsel and their compliancewith that duty did not interfere with his right to a reasonable opportunity to contact counsel of choice. Like Mr.

Willier, the defendantwas properly presented with another route by which to obtain immediate legal advice, an option he chose to decline. [50.] Fourth, the first breath test was taken at 3:19 a.m., more than twenty minutes after the first call to Mr. Hendrick and well afterthe defendant declined to wait for Mr. Hendrick or to speak with duty counsel. This interval did not deprive him of a reasonableopportunity to contact counsel of choice. After repeatedly declining to speak with a lawyer, the defendant was reminded that he could

change his mind at any time, which was an open-ended offer he never accepted. [ 51 .] Fifth, if the defendant continued to want to speak with Mr. Hendrick or wait for him to call back, he was not diligent in exercising that right, especially when he said he told the police he did not believe the lawyer would call the station. Given that the defendant did not testify, the only reasonable inference on the evidence is that he did not want to press his right to speak to a particular lawyer. [ 52 .] Sixth, by refusing to speak to duty counsel the defendant was not reasonably diligent.

Both officers clearly explained that duty counsel was not a state agent but was a lawyer dedicated to giving arrested persons immediate legal advice. Indeed, the defendant was given the full rights to counsel twice: first at the roadside, and again inside the breath room. On each occasion he was told that he could speak to any lawyer he wished. No limit as to time or type of lawyer was placed on him by the police. On each occasion he was told he could speak to a free lawyer immediately. The police were reasonable in explaining that duty counsel was not a police lawyer.

On the evidentiary record, it appears that the defendant came around to understand this. If he did not, then there was little more the police could have done to explain or persuade him of the truth about duty counsel. [ 53 .] Seventh, the defendant never raised a concern about accessing a lawyer after he stated that it was unlikely Mr. Hendrick was going to call. There was no persuasive evidence that he probably did not understand his rights.

There was no evidence or reasonable inference that police conduct adversely affected the defendant’s ability to assert his rights. [ 54 .] Eighth, the defendant had a duty to tell the police he wanted to speak with a different lawyer or call a third party to access one. He did neither.

In the totality of the circumstances, including his clear desire to leave the station as soon as possible, there was no need for the police to pursue these alternatives with the defendant. [ 55 .] Ninth, given that the defendant was not reasonably diligent in pursuing his right to counsel, it was unnecessary for the police to provide him with a Prosper warning. In any event, P.C.

Bucsis made it clear that they would take the breath tests within a reasonable time after the defendant had an opportunity to access and receive legal advice, and that they would wait to see if the lawyer called back or he spoke to duty counsel if he wished before taking the breath samples. [ 56 .] My finding that the defendant was not reasonably diligent is supported by the following binding appellate decisions. In R. v.

Richfield , supra at ¶ 12 , the Ontario Court of Appeal concluded that: The appellant, upon being informed that the lawyer that he had asked the police to call had not called back, did not ask to make a further call to his counsel of choice or to another counsel. When asked if he wished the assistance of duty counsel, the appellant indicated that he did not. The appellant was not reasonably diligent in exercising his right to counsel in the circumstances.

The fact that the police could have made greater efforts earlier does not detract from the appellant's own lack of diligence at a later stage in exercising his right to counsel. [ 57 .] As well, in R. v. Blackett , [2006] O.J. 2999 (S.C.J.) at ¶ 25 , the

summary conviction appeal judge stated that: It seems inescapable that the appellate courts have decided that, where duty counsel is available, the scope of the police duty to facilitate contact with counsel of choice is minimal. It would appear from the decision in Richfield that a good faith perfunctory effort by the police to locate counsel of choice is sufficient to "suspend the correlative duties on the police" if it is followed by an offering of access to duty counsel and the failure by the accused to take advantage of duty counsel. [ 58 .] The defendant’s

section 10(

b) Charter application is therefore dismissed. 4.0: CONCLUSIONS AND VERDICT [ 59 .] Given that I have dismissed the defendant’s Charter applications, there is no basis upon which to exclude the breath test results. Therefore, I find the defendant guilty beyond a reasonable doubt of the offence of driving with excess blood alcohol.

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice