R. v. MacLachlan, 2012 ONCJ 709

COURT FILE No.: 11 11893 Citation: R. v. MacLachlan , 2012 ONCJ 709 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — REID MACLACHLAN Justice Lloyd Dean

Section 10 (

b) Voir Dire heard on September 10, 2012 SCOTT PRATT ................................................................................................... for the Crown BRIAN DUCHARME ........................................................................................ for the Accused RULING ON S. 10 (

b) VOIR DIRE Introduction 1 The accused is charged with impaired operation of a motor vehicle contrary to section 253 (1) (

a) of the Criminal Code of Canada (“Code”) and exceed contrary to section 253 (1)(

b) of the Code. 2 Defence counsel has brought an application for an order granting relief under section 24 (2) of the Canadian Charter of Rights and Freedoms (“Charter”) for the exclusion of evidence obtained as a result of a violation of

section 10 (

b) of the Charter. Facts 3 The accused was stopped while operating his motor vehicle as a result of observations made of his driving by Officer David Bohdal of the Amherstburg Police Service. The officer ultimately arrested the accused for impaired driving. The officer properly informed the accused of his right to counsel by reading it directly from his notebook. He asked the accused if he understood. The accused replied he understood. The officer then asked the accused if he wished to call a lawyer now.

The accused answered “at this point no”. 4 Officer Bohdal was asked, at the end of his examination in chief, after the accused responded “at this point no” if he ever broached that subject again. The officer stated it is his common practice to advise everyone he arrest they have the right to call any lawyer they want or words to that effect and if they don’t have a lawyer, or can’t think of a name, they can be provided with a phone book or there is a 1 800 number that can put them into contact with a lawyer over the phone for free legal advice.

The officer recalls doing that in this particular case after the accused said “at this point no” and the accused responding he understood. The officer acknowledged in cross examination that he does not recall the exact words he used to explain further to the accused his right to counsel but it would have been words to the effect he had indicated during his direct examination. The officer further stated in cross examination to the accused words of “at this point no” he would have told the accused that if he changes his mind to let him or another officer know and he could call a lawyer at any time.

The officer acknowledged he did not make a note of what he said but that’s what he would have said to the accused because that has been his common practice for many years. Officer Bohdal was further asked during his cross examination if he agreed the accused response was equivocal. The officer stated “it wasn’t definite that’s for sure”. 5 During his cross examination the officer testified he does not recall whether or not he discussed with the accused his right to counsel after arriving at the police station. He does not believe he did. The conversation he had testified to during his examination in

chief occurred in his police cruiser before arriving at the police detachment. Further on during his cross examination he indicated he does not have any notes as to what he said to the breath technician, Officer Chapman, with respect to rights to counsel but he believes he would have told him the accused was given his rights to counsel and the accused understood and said he didn’t want to call at that time.

The officer is not sure if he used the words “at this point no” when speaking to Officer Chapman. 6 Officer Chapman testified Officer Bohdal told him the accused had said “no” when asked if he wanted to call a lawyer. After escorting the accused to the breath room Officer Chapman told the accused he had been left with the impression that the accused did not wish to speak to a lawyer at that time. He asked the accused to confirm if that was still his wish. And he also asked if he would like to speak to a lawyer. The accused answer was no.

After the breath tech procedure was explained the accused asked what if any repercussions would occur if he chose not to provide the breath samples. 7 During his cross examination the officer confirmed his will say statement was made a day after the offence. The will say stated the officer asked the accused if he still did not want to speak to legal counsel (The accused answered no.). He admitted that was a poor choice of phrasing on his part. He testified he would not ask any person the question in that way when in the breath room.

It was his evidence that when he receives information from the arresting officer he repeats to the offender what was delivered to him and then asks the offender if they would like to speak to a lawyer at that point. He testified he always ends that discussion by asking if they would like to speak to a lawyer now. The officer testified the accused was made aware that he could speak to a lawyer if he wished to and the officer repeated that he did not phrase the question in the way it is stated in the will say. 8 The accused testified when read his right to counsel at the time of arrest he understood.

When asked if he would like to call a lawyer he said “not at this time” because at that time he did not realize the extent of the trouble he was in and didn’t feel like he had done anything wrong. The evidence of the accused is that Officer Bohdal did not give any more detail about rights to counsel in the cruiser. The accused went on to state even at the station he did not realize the extent of the trouble he was in. He had never been in that situation before. He testified the breath tech’s question about whether he wanted to call a lawyer was in the form of a double negative, so his no meant yes.

He complied with the breath test because he didn’t want to face criminal charges for not providing samples, as the officer had explained to him would be the case if he didn’t provide samples. 9 In cross examination, when asked about whether a lawyer was offered to him at the station, the accused started his answer with “not until”, stopped, and then said “it was never offered”. After being questioned by the Crown as to why he started his answer with the words “not until”, the accused went on to say the offer to call a lawyer was “not technically offered”.

The accused asserted throughout the entire dealings with the police, at the scene of arrest and at the police station, he did not realize the trouble he was in or the extent of it. At different times at the police station he wanted to speak to a lawyer. He was asked why he didn’t tell anyone and his answer was “I don’t know”. And then later in the cross examination he once again returned to the theme that he did not realize the extent of the trouble he was in.

Position of the Parties Defence position 10 The defence argues the accused response to Officer Bohdal was equivocal and it was incumbent on the police to, at some point before the breath test, clarify the wishes of the accused as to whether or not he wished to call a lawyer. He argues Officer Bohdal was careless and negligent on his part to not clarify the equivocal response. He also submits Officer Bohdal left the breath tech misinformed by not telling him the exact words said by the accused in response to whether or not he wished to call a lawyer.

He further argues there was no repair of Officer Bohdal’s failure to clear up the equivocal response by Officer Chapman. 11 Therefore the defence submits the accused s. 10 (

b) rights were violated and the breath test results should be excluded from being admitted as evidence. The defence relied on several cases to support its position. Crown position 12 The Crown agrees the accused words to Officer Bohdal were equivocal and if that was the only evidence the Crown would concede a breach. The Crown argues the other evidence the court heard should satisfy the court that ultimately the accused said no to wanting to call a lawyer. The Crown also argues the accused failed in his duty to be diligent in exercising his right to counsel.

13 Therefore the Crown submits there was no Charter breach. The Purpose of s. 10(b) 14 The onus of proving a Charter breach is on the person alleging the breach to prove on a balance of probabilities that a breach hasoccurred. 15

Section 10(

b) of the Charter states as follows: Everyone has the right on arrest or detention, (

b) to retain and instruct counsel without delay and to be informed of that right. 16 In the case of R v.

Bartle, (1994), (SCC), 92 C.C.C. (3d) 289, (S.C.C.), Justice Lamer stated there are three dutiesimposed on the police upon arresting or detaining an accused: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and the existence and availability of Legal Aidand duty counsel; (2) if a detainee has indicated a desire to exercise his 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). 17 In R. v.

McCrimmon, 2010 SCC 36 , [2010] 2 S.C.R. 402, the Supreme Court explained the purpose of

section 10(

b) isto provide detainees with immediate legal advice on his or her obligations under the law, mainly the right to remain silent, important inprotecting one’s right against self-incrimination, but as well to assist in regaining one’s liberty. The s. 10(

b) right allows a detainee tobecome conversant not only with his or her rights and obligations under the law but also to obtain advice as to how to exercise thoserights: R. v. Sinclair, 2010 SCC 35 , [2010] 2 S.C.R. 310 (S.C.C.). It is designed to ensure that detainees “have an opportunity tobe informed of their rights and obligations under the law and to obtain advice on how to exercise those rights and perform thoseobligations.": R. v. Willier, 2010 SCC 37 , [2010] 2 S.C.R. 429 (S.C.C.). 18 The ultimate goal of s. 10(

b) is to ensure that those detained or arrested are treated fairly. Analysis 19 There is no dispute the accused response to Officer Bohdal was equivocal. That required the police at some point beforeobtaining the breath samples to revisit the issue. 20 If I accept the accused evidence that the breath tech asked him “do you still not want a lawyer”, the accused would like me tobelieve that he simply answered “no” to that question and that his answer meant he did want to speak to a lawyer. 21 He had never been in that situation before, yet he doesn’t say more than “no”?

He made no statement at that time orsubsequently, prior to taking the test, that would have indicated he would like to speak to a lawyer. Does that make any sense,especially if he felt he did nothing wrong? If he wanted to convey that he wished to speak to a lawyer why wouldn’t he have said more,such as “no, I would like to speak to a lawyer”. He asked the breath tech what would happen if he didn’t provide samples but I do not

accept that has an indication that he would like to speak to a lawyer. When the Crown on the voir dire innocently asked using a double negative in much the same way as the accused suggested Officer Chapman did, the accused answered “no, I wanted to speak to a lawyer”. 22 The accused is 35 years old. He is employed. He spoke clearly and it was evident he had a sufficient level of intelligence to communicate clearly and understand what was going on. It is reasonable to assume, indeed to expect, that if he wanted to speak to a lawyer he would have spoke up and said such.

There is no dispute that he understood the right to counsel. Should I accept an argument that the accused was in an intimidating environment and unsure of what his options were? Absent evidence the police were in some way acting harshly or aggressively towards the accused I do not accept that being in police presence is in and of itself intimidating for a 35 year old man. Further, I do not accept the accused did not realize the extent of the trouble he was in. He was arrested for impaired driving.

In today’s environment of multi-media devices with numerous educational messages about the dangers and consequences of impaired driving that have been ongoing for years I cannot accept that a 35 year old man, living in Canada, upon being arrested for impaired driving would not be aware of the extent of the trouble he was in. He may not be aware of the exact consequences should he be convicted but he would no doubt in my mind have a general idea.

And certainly being brought to the police station, being booked and placed into a holding cell would have brought home the nature of the situation to the accused. 23 With respect to whether there was an offer of a lawyer at the station, why would he start his answer with “not until” and then later use the words “it wasn’t technically offered”? That type of language causes me to question the accused credibility. What does he mean “it wasn’t technically offered”? It is my opinion the accused was well aware of the fact he was being asked at that time if he wanted to call a lawyer.

On this point I prefer the evidence of Officer Chapman, despite what was written in his will say. His testimony in court surrounding the phrasing of the words at issue in his will say has at least satisfied me that it is more likely than not that the accused was asked by him if he wished to call a lawyer at that time and the accused answer was no. This meant he did not want to call a lawyer. On the evidence before me the accused has not met his burden on the Charter application. 24 The cases relied on by the defence are distinguishable on their facts.

As I have indicated, I accept, at least on the balance of probabilities, that the equivocal response given to Officer Bohdal was ultimately dealt with by Officer Chapman and the accused unequivocally declined to speak to a lawyer. 25 The Charter application is dismissed. Dated: October 29, 2012 ________________________ Judge Lloyd Dean Ontario Court of Justice