R. v. Lambert, 2018 NLCA 39

Her Majesty the Queen (appellant) v. Bradley Lambert(respondent) (17/02) Indexed As: R. v. Lambert 2018 NLCA 39 3 C.A.N.L.R. 89 Court of Appeal of Newfoundland and Labrador Welsh, Harrington and O’Brien JJ.A. July 11, 2018

Summary: A car Mr. Lambert was driving was involved in a single-vehicle accident. Mr. Lambert was ejected from the vehicle and his passengerwas injured. He admitted to responding police officers several times that he was impaired and told them he did not wish to speak to alawyer. A neurologist testified that Mr. Lambert had suffered a concussion and that, as a result, he exercised poor judgment in resistingmedical attention and in responding to police officers. The trial judge excluded Mr. Lambert’s statements to officers for not beingvoluntary and determined that Mr. Lambert’s right to counsel under

section 10(

b) of the Charter had been infringed because no steps hadbeen taken to facilitate consultation with counsel. Mr. Lambert was acquitted of impaired driving causing bodily harm and driving with ablood alcohol content exceeding 0.08 mg/100 ml. The Crown appealed arguing the trial judge erred in excluding statements made by Mr.Lambert to police on the grounds that they were not voluntary as he lacked the necessary operating mind and determining that theyshould be excluded due to a violation of

section 10(

b) of the Charter. Held: Appeal allowed, new trial ordered. Welsh J.A (Harrington and O'Brien JJ.A. concurring): A statement given to a police officer will be admissible in court only if it satisfiesthe requirement of voluntariness. In determining the requisite capacity to make an active choice, the relevant test is: Did the accusedpossess an operating mind? An operating mind includes a limited mental component which requires that the accused have sufficientcognitive capacity to understand what he or she is saying and what is said.

It is not necessary that the accused possess analytical ability.The trial judge found that the statements were not “rational” and suggested “impractical reasoning”. The trial judge failed to apply theappropriate test which excludes consideration of whether the accused is capable of making a good, wise or rational choice. Thestatements were admissible. Mr. Lambert conceded that he was informed of the right to retain and instruct counsel without delay. Mr. Lambert indicated he did notwish to speak to a lawyer. He submitted that he did not have the necessary mental capacity to make an informed decision.

However, theoperating mind test at common law fully answers the mental capacity requirement for an effective waiver of the right to counsel and themental capacity necessary to make an active choice with respect to the right to silence. Mr. Lambert had the operating mind and therefore his rights under

section 10(

b) of the Charter werenot infringed. The errors by the trial judge clearly had a material bearing on the acquittal. A new trial should be ordered. Cases cited: R. v. Oickle, 2000 SCC 38 , [2000] 2 S.C.R. 3 R. v. Whittle, (SCC), [1994] 2 SCR 914 R. v. Bartle, (SCC), [1994] 3 S.C.R. 173

R. v. Singh, 2007 SCC 48 , [2007] 3 S.C.R. 405 R. v. Graveline, 2006 SCC 16 , [2006] 1 S.C.R. 609 Counsel: Iain Hollett, for the appellant; Derek Hogan, for the respondent. This appeal was heard on May 10, 2018 before Welsh, Harrington and O’Brien JJ.A.

The following judgment was delivered on July 11, 2018 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [1] Bradley Lambert was acquitted of charges of impaired driving causing bodily harm and operating a motor vehicle with a blood-alcohol content exceeding .08, contrary to sections 255(2) and 255(2.1) of the Criminal Code. Issues raised in the appeal by the Crownrelate to the voluntariness of statements made by Mr. Lambert and the application of

section 10(

b) of the Canadian Charter of Rights andFreedoms. BACKGROUND [2] On September 17, 2011, Mr. Lambert was driving a car that was involved in a single-vehicle accident in which he was ejectedfrom the vehicle and the passenger was injured. Sgt. Thistle, the senior police officer on the scene, spoke to Mr. Lambert in theambulance. He introduced himself and asked Mr. Lambert how he was doing. Mr. Lambert responded: “I am drinking and driving. Give me the ticket and let me go, boy.” The officer noted a strong smell of alcohol in the ambulance and that Mr. Lambert’s speech wasslurred.

After speaking to the man in the other ambulance and determining that Mr. Lambert had been driving, the officer returned to thefirst ambulance and advised Mr. Lambert that he believed that he had been operating a motor vehicle while impaired by alcohol, and readhim his rights and caution. Mr. Lambert said that he understood and that he did not want a lawyer. Mr. Lambert then repeated: “I wasdrinking and driving; I told you, give me the ticket.” He was then taken to the emergency room at the hospital. [3] At the hospital, Sgt. Thistle again advised Mr.

Lambert that he could be charged and read him his rights and caution. Again,Mr. Lambert said he did not want a lawyer. The officer then read Mr. Lambert the demand for a blood sample, to which Mr. Lambertresponded, “If it’s needed, you know I’m impaired.” The evidence of the Crown’s expert was that Mr. Lambert’s blood-alcohol level atthe approximate time of the accident would have been between 119 and 143 milligrams of alcohol in 100 millilitres of blood. [4] At the voir dire to determine the admissibility of the above statements, Mr.

Lambert testified that he could not recall thecollision, the ambulance, or any interaction with the police or medical personnel. A neurologist, Dr. Goodridge, was called by Mr.Lambert to give expert evidence regarding concussion, which was described as a mild traumatic brain injury. It was Dr. Goodridge’sopinion that Mr. Lambert had suffered a concussion and that, as a result, he exercised poor judgment in resisting medical attention and inresponding to the police officer in the ambulance. I note that Dr. Goodridge did not examine Mr. Lambert.

His opinion was based onmedical notes and reports and a subsequent interview with Mr. Lambert. [5] The trial judge, having determined that Mr. Lambert’s statements were not voluntary, excluded the statements and the bloodsample evidence. He found that Mr. Lambert’s right to counsel under

section 10(

b) of the Charter had been infringed because no stepshad been taken to facilitate consultation with counsel. With the exclusion of the evidence and Mr. Lambert’s statements, the Crownconceded that there was insufficient evidence to prove the charges. [6] I note in passing that, while the event leading to the charges took place in September 2011, the trial did not proceed for severalyears, commencing in December 2015 and continuing at intervals during 2016, with the judge giving an oral decision on October 14,2016. Mr. Lambert was represented by counsel at trial and did not make an application under

section 11(

b) of the Charter based on thedelay. In the circumstances, the question of delay is not engaged on the appeal. ISSUES [7] At issue in the appeal is whether the trial judge erred (1) in concluding that the statements were not voluntary because Mr.Lambert lacked the necessary operating mind, and (2) in ruling that the blood sample evidence was inadmissible based on aninfringement of

section 10(

b) of the Charter. ANALYSIS Voluntariness of Mr. Lambert’s Statements

[8] A statement given to a police officer will be admissible in court only if it satisfies the requirement of voluntariness. In R. v.Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, Iacobucci J., for the majority, addressed the principle of an operating mind as a component ofvoluntariness: [63] This Court recently addressed this aspect of the confessions rule in Whittle [ (SCC), [1994] 2 S.C.R. 914], and Ineed not repeat that exercise here.

Briefly stated, Sopinka J. explained that the operating mind requirement “does not imply a higherdegree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to hisdetriment” (p. 936). … (Emphasis added.) [9] In Whittle, Sopinka J., for the Court, emphasized the “limited degree of cognitive ability” required to satisfy the test forvoluntariness, and explained, at page 939: The operating mind test, therefore, requires that the accused possess a limited degree of cognitive ability to understand what he or she issaying and to comprehend that the evidence may be used in proceedings against the accused.

Indeed it would be hard to imagine what anoperating mind is if it does not possess this limited amount of cognitive ability. In determining the requisite capacity to make an activechoice, the relevant test is: Did the accused possess an operating mind?

It goes no further and no inquiry is necessary as to whether theaccused is capable of making a good or wise choice or one that is in his or her interest. (Emphasis added.) Sopinka J. reiterated, at page 941, that an operating mind “includes a limited mental component which requires that the accused havesufficient cognitive capacity to understand what he or she is saying and what is said”, and at page 942, that it is “not necessary that theaccused possess analytical ability”. [10] For convenience, I repeat the three statements in issue in this case: 1. “I am drinking and driving.

Give me the ticket and let me go, boy.” (Response to the officer initially asking how Mr. Lambert wasdoing.) 2. “I was drinking and driving; I told you, give me the ticket.” (Response after the officer returned to the ambulance and advised Mr.Lambert of his rights.) 3. “If it’s needed, you know I’m impaired.” (Response when the officer demanded a blood sample at the hospital.) [11] In assessing the voluntariness of the statements made to the police officer while Mr.

Lambert was in the ambulance, the trialjudge found that the statements could not be taken as “rational”, that they suggest “impractical reasoning”, and that the third statement“appears less irrational” (transcript of oral decision, at paragraphs 57, 56 and 59, respectively).

This language indicates a failure by thetrial judge to apply the appropriate test which, as set out in Oickle and Whittle, excludes consideration of whether the accused is capableof making a good, wise or rational choice as long as he has the “limited degree of cognitive ability to understand what he or she is sayingand to comprehend that the evidence may be used in proceedings against [him]” (paragraph 8, above). [12] In determining that Mr. Lambert did not have the necessary operating mind, the judge relied on the nature of the accident,including that Mr.

Lambert was thrown from the vehicle and apparently hit his head; “the irrational aspects of the utterances andresponse to the demand”; Mr. Lambert’s conduct when he refused to be still in the ambulance until his injuries could be assessed; andDr. Goodridge’s “opinion that the information he reviewed disclosed to him clearly a concussion and cognitive impairment” (transcriptof oral decision, at paragraph 60). [13] The trial judge concluded: [60] … I have then a real concern that this accused had the benefit of an operating mind at the times of his utterances and the demand for theblood sample.

It appears that with the concussion likely unresolved for a period of 24 hours this accused’s awareness, perception,capacity to assess information and operate logically is impaired.

The medical evidence and the surrounding circumstances of thecollision and the accused’s actions as I have just described them, combine to establish the cognitive diminishment compromising theCrown’s ability to establish the operating mind of the accused sufficient to support the voluntariness of the accused’s utterances and hisresponse to the demand for a sample of his blood. [61] In my view, the minimum cognitive capacity contemplated in Whittle and Oickle is not made out in this case. I have a reasonabledoubt that this accused had the cognitive ability to comprehend what was said to him and to process: (

a) the right of which he is advised; (

b) the true jeopardy that he faced at the time; and (

c) the ability to consider, understand or process both in context. [62] Further, in this context his responses as noted have to be viewed as induced at least in part by his physical circumstances of painand restraint. [63] In my view, these responses are not voluntary as (sic) to allow their admission into evidence. Their admission and the sample ofblood following are denied.

[14] It is clear from this language that the trial judge failed to apply the correct test, that is, whether Mr. Lambert knew what he wassaying and that he was saying it to a police officer who could use it to his detriment. The officer was in uniform. Mr. Lambert’sstatements regarding his intoxication were appropriate, if not wise, when considered in context. That is, the statements indicate that Mr.Lambert knew that he had been driving, that he had been drinking, that there would be a legal consequence, and that he was making thestatements to an officer of the law.

He admitted that he was impaired and assumed the officer would issue him a ticket. While he clearlywas in error regarding the consequence, he knew what he was saying and that he was saying it to a police officer who could use it to hisdetriment. There is no evidence that Mr. Lambert made similar statements to anyone other than a police officer.

He made the statementsthree times, with an interval in between, the last two being made after he had been given his rights by the police officer. [15] In determining that the three statements were involuntary, the judge failed to apply the test for an operating mind as set out inOickle and Whittle. Rather, he appears to have adopted the language used by Dr. Goodridge regarding the possible effect of concussion. I am satisfied that, applying the legal test for an operating mind, Mr. Lambert’s statements were voluntary and admissible.

Section 10(

b) of the Charter [16]

Section 10(

b) of the Charter provides: Everyone has the right on arrest or detention … (

b) to retain and instruct counsel without delay and to be informed of that right; … The right at issue in this case is the right “to retain and instruct counsel without delay”. Mr. Lambert concedes that he was informed ofthat right. [17] The requirements imposed on police officers under

section 10(

b) of the Charter were summarized by Lamer C.J.C., for themajority, in R. v. Bartle, (SCC), [1994] 3 S.C.R. 173, at pages 191 to 192: This Court has said on numerous previous occasions that s. 10(

b) of the Charter imposes the following duties on state authorities whoarrest or detain a person: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aidand duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right(except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger). [18] In this case, Mr.

Lambert offered the statements; they were not elicited by the police. Upon being advised of his right to counsel,Mr. Lambert indicated he did not wish to speak to a lawyer. However, he submits that he did not have the necessary mental capacity tomake an informed decision. That submission is not persuasive. [19] In R. v.

Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, Charron J., for the majority, in the context of addressing the operation ofsection 7 of the Charter, discussed the relationship among Charter rights that are concerned with the right to silence: [25] … (The symmetry between the confessions rule and related Charter rights in so far as the requisite mental capacity is concernedwas previously recognized in R. v.

Whittle, (SCC), [1994] 2 S.C.R. 914, where the Court held that the operating mindtest at common law fully answers the mental capacity requirement for an effective waiver of the right to counsel and the mental capacitynecessary to make an active choice with respect to the right to silence.) … [20] Mr. Lambert indicated that he did not wish to speak to a lawyer. The statements he made were voluntary. He had the requisiteoperating mind. There is no basis on which to conclude that his rights under

section 10(

b) of the Charter were infringed. [21] Finally, because this is an appeal by the Crown against Mr. Lambert’s acquittal, the onus on the Crown, set out in R. v.Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, applies: [14] … It is the duty of the Crown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judgemight reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal.

The AttorneyGeneral is not required, however, to persuade us that the verdict would necessarily have been different. [22] In this case, the Crown has satisfied that onus. At trial, when the statements and blood sample evidence were ruled inadmissible,the Crown conceded that there was insufficient evidence to proceed. I have concluded that the statements and blood sample analysis areadmissible. The errors by the trial judge clearly had a material bearing on the acquittal. [23] Accordingly, I would allow the appeal and order a new trial.

SUMMARY AND DISPOSITION [24] The trial judge erred in his application of the operating mind test. The three statements in issue and the blood sample analysis areadmissible evidence. [25] Accordingly, I would allow the appeal and order a new trial.

Appeal allowed.