R. v. Williams, 2016 ONCJ 838

CITATION: R. v. Williams , 2016 ONCJ 838 DATE: July 27, 2016 Information No: 15-1171 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. DONALD WILLIAMS REASONS FOR JUDGMENT BEFORE THE HONOURABLE JUSTICE K.L. McKERLIE on April 27, May 10, May 17, June 16, July 27, 2016 at LISTOWEL and STRATFORD, Ontario

APPEARANCES : N. Dietrich Counsel for the Crown R. Ellis Counsel for Donald Williams R E A S O N S F O R J U D G M E N T MCKERLIE, J. (Orally): Donald Williams is charged with the November 26th, 2015 offence of operating a motor vehicle with more than 80 milligrams of alcohol in 100 millimetres of his blood, contrary to section 253(1) (

b) of the Criminal Code of Canada . Pursuant to a Notice of Application dated March 15th, 2016, Mr. Williams seeks an order excluding evidence pursuant to sections 10(

b) and 24(2) of the Canadian Charter of Rights and Freedoms . At the request of counsel, this matter proceeded by way of a blended Charter voir dire and trial. Mr. Williams testified on the voir dire but not the trial. The defence submits that although Mr. Williams spoke to duty counsel at the detachment, he was not given the opportunity to do so in private. Mr. Williams was in a concrete holding cell with a solid door when he spoke to duty counsel. The phone receiver was attached to a long phone cord, which was passed through a small window or hatch in the cell door. Mr.

Williams testified that while speaking with duty counsel, he could hear other voices in the detachment and was concerned that his conversation with duty counsel could be overheard. The Crown's case consisted of the testimony of the arresting officer, Ontario Provincial Police Constable Kuzyshyn and the Certificate of Qualified Technician filed as Exhibit 2. On the date in question, Constable Kuzyshyn was dispatched to investigate a complaint by a concerned citizen respecting a possible impaired driver. As a result of the information he received, the officer conducted a traffic stop at 3:42 p.m. Mr.

Williams was the driver and the lone occupant of the vehicle in question. Constable Kuzyshyn detected the odour of alcohol coming from the vehicle and also detected the odour of alcohol coming from Mr. Williams’ breath. Mr. Williams admitted that he had consumed alcohol. Constable Kuzyshyn formed the requisite reasonable suspicion for an approved screening device demand and read the demand to Mr. Williams. Mr. Williams provided a sample of his breath into the approved screening device which registered a fail. The officer then had reasonable and probable grounds to arrest Mr. Williams for the "over 80" offence.

At 4:00 p.m., Mr. Williams was arrested for the "over 80" offence, handcuffed, searched, and given his rights to counsel, caution and the breath demand. Mr. Williams confirmed that he understood the rights to counsel. When asked if he wished to call a lawyer now, Mr. Williams replied “No.” Constable Kuzyshyn told him that he would have an opportunity to talk to a free lawyer at the station. Mr. Williams replied

"Okay." Constable Kuzyshyn then transported Mr. Williams to the Listowel Ontario Provincial Police Detachment. The officer took Mr. Williams into the booking area, removed his handcuffs and lodged him in a cell. The officer then called duty counsel. Duty counsel returned the call at 4:34 p.m. When duty counsel returned the call, Constable Kuzyshyn answered the phone in the office and then transferred the call to the booking area where another officer answered the phone and handed the phone receiver to Mr. Williams through the hatch opening in the cell door.

Constable Kuzyshyn explained that the phone has a long cord which enables an accused person in the cell to speak to duty counsel in privacy and without compromising safety. As evidenced by the cell video, the area is subject to video surveillance. Constable Kuzyshyn waited for Mr. Williams to finish his call with duty counsel. When another officer in the office told him that Mr. Williams had finished his call, Constable Kuzyshyn walked down the hallway to the cell area, took the phone, spoke briefly to duty counsel to make sure Mr.

Williams had exercised his rights to counsel, and then placed the phone receiver back on handset. Constable Kuzyshyn confirmed that Mr. Williams was the only person in the cell area. There were no other prisoners and there were no police officers in the cell area or booking area while Mr. Williams was exercising his rights to counsel. The officer confirmed that at no point could he hear Mr. Williams while he was speaking to duty counsel. After he hung up the phone, the officer asked Mr. Williams if he wished to speak to another lawyer. Mr. Williams indicated that he did not. Mr.

Williams did not raise any issue respecting the exercise of his rights to counsel. Mr. Williams was then turned over to the qualified breath technician for the breath tests. As shown in the Certificate of Qualified Technician, Exhibit 2, Mr. Williams provided two samples of his breath into the approved instrument, an Intoxilyzer 8000C. The first breath sample at 4:39 p.m. produced a reading of 160 milligrams of alcohol in 100 millilitres of his blood. The second sample at 5:01 p.m. produced a reading of 150 milligrams of alcohol in 100 millilitres of blood.

Under cross-examination, Constable Kuzyshyn confirmed that another officer handed the phone to Mr. Williams at the start of the call and he took the phone receiver from Mr. Williams after the call. Constable Kuzyshyn testified that he is stationed at another detachment and this was the first time he had facilitated rights to counsel at the Listowel Detachment. I now turn to the defence evidence. Mr.

Williams testified that after he was given his rights to counsel at the roadside, the officer asked him if he understood and he replied "yes." When asked to recount the events that occurred after he arrived at the detachment, Mr. Williams testified that he was taken into the back of the station and into a room where the breathalyzer was located. He remained in the room while they set up the machine and then he provided a breath sample and a second sample. He was then placed in a cell and the officer asked if he wanted to speak to duty counsel.

He said "yes." The officer dialled the phone and then put the phone through the opening in the door of the cell. The officer told him to leave the phone on the hatch when he was done with the call. Mr. Williams testified that he spoke to duty counsel and set the phone receiver on the hatch when he finished the call. The officer then came back, took the receiver and hung up the phone. Mr. Williams then waited in the cell until the paperwork was completed and he was released. When his lawyer asked him what he could hear in the detachment when he was on the phone, Mr.

Williams replied that he could hear people talking in the room adjacent to the cell. He assumed they were police officers and did not see any other prisoners at the detachment.

Mr. Williams testified that he did not feel comfortable speaking with duty counsel because he could hear people talking outside the celland there was a loud echo in the cell. He testified that he was uncomfortable asking duty counsel questions while people could possiblyhear what he was saying. When asked if he heard any specific words or phrases, Mr. Williams replied that he was not concentrating on that. At one point he didrecall someone saying, “Hi, how are you?” He did not see any officers through the window when he was on the phone.

The officercame back about a half a minute after he set the phone on the hatch. When asked if there was anything else respecting what he heard or saw in the cells that would be important, Mr. Williams replied,"Basically, I figured I would speak with a lawyer after, instead of speaking to duty counsel." Under cross examination, Mr. Williams confirmed that the order of the events was as follows: He provided two samples of his breath,he was then placed in a cell and he then spoke to duty counsel. When asked if it was possible that the order was reversed, Mr.

Williamsreplied "yes," and admitted that his memory was not 100 percent. Mr. Williams identified himself on the video footage of the cell area. He agreed that the door to the cell is a solid steel door with a smallwindow or hatch at eye level. Mr. Williams agreed that when he was speaking on the phone, there was no one in the adjacent area andthat he was standing facing the small window which looked out onto the breathalyzer area. Mr. Williams confirmed that he spoke toduty counsel from 4:35 p.m. to 4:38 p.m. Mr.

Williams indicated that he was concerned he could be overheard because his voice was echoing in the cell. He admitted that despitehis concern of being overheard, he continued to talk to duty counsel for three minutes and did not cover the mouthpiece or turn his bodyaway so his back would be toward the small window or hatch. Mr. Williams testified that he was concerned because he heard voices thewhole time he was in the cell. Mr. Williams did not recall the officer asking him if he wanted to speak to another lawyer. When it was put to him that at no time did helet the officer know about his privacy concerns, Mr.

Williams replied, "I didn't know what to do at that point. I didn't want to yell oranything." Mr. Williams admitted that at no time did he tell the police of his concern about being overheard or the echoing in the cell. He also confirmed that he was not raising his voice when he spoke to duty counsel. Mr. Williams indicated that his concern was not that he was speaking loudly, but that he could hear other people speaking. He could notsee where those voices were coming from. He confirmed that after the phone call, he did not raise a concern with the officer and did notask to speak to another lawyer.

He also confirmed that he did not see a police officer in the adjacent room when he was speaking to dutycounsel. Sergeant Bentley was also called as a defence witness. He has been the Sergeant at the Listowel Detachment since 2009. He confirmedthat there is a phone in the breathalyzer area outside cell one and the phone cord can be extended into the cells. There is also a phone inthe detachment’s interview room. The officer confirmed that there is both audio and video recording in the interview room, but the audio cannot be turned off withoutturning off the video as well.

Therefore, if an officer wished to implement rights to counsel in the interview room, the only way wouldbe to turn off both the recording systems and there would be no way to ensure the individual's safety, other than looking through thewindow into the interview room. As set out in the defence factum, Mr. Williams submits that his right to speak with counsel in private was breached because he couldhear the conversations of others and believed that officers and anyone else near his cell could overhear his conversation with dutycounsel.

It is well established that an accused is entitled to privacy while exercising his right to counsel and it is not necessary for the accused torequest privacy: R. v. Playford, (ON CA), [1987] O.J. No. 1107, at paras. 40 and 47. The right to privacy is inherent in the right to retain and instruct counsel under

section 10(b). Even to obtain minimal advice by means ofa telephone, an accused must be free to discuss the circumstances of his case with counsel without fear of making admissions in the

presence of police: R. v. LePage, [1986] N.S.J. No. 371, N.S.S.C (Appeal Division) at para 17. An accused telephoning a lawyer while in police custody is entitled to privacy and is not under any obligation to request privacy orgreater privacy than what is provided: R. v. McKane (ON CA), [1987], O.J. No. 557 (Ont. C.A.) at paras 8 and 9). The Crown submits that Mr. Williams was, in fact, afforded privacy while exercising his rights to counsel as guaranteed by

section 10(b)of the Charter. The Crown emphasizes that Mr. Williams was the only person in the cell and the only person in the cell block andbooking area at the time he exercised his rights to counsel. The cell is self-contained. It does not have open bars. It has a solid door witha small window and an even smaller hatch or slot through which the phone receiver was passed into the cell. The cell and the areaoutside the cell was monitored by video cameras for safety reasons. There is no audio recording. The video shows when a prisonercompletes the call with his counsel. The Crown also emphasizes that after Mr.

Williams finished speaking to duty counsel, Constable Kuzyshyn asked him if he wished tospeak to another lawyer and Mr. Williams replied "no." At no time did Mr. Williams raise with any officer a concern that hisconversation with counsel was not in private or that he was inhibited in any way while speaking to duty counsel. In Playford, the accused called his lawyer from the breathalyzer office, the door to which led to the general office area and was leftopen. A police officer was seated at a desk from which he could watch and hear the accused.

The officer overheard the conversationand made notes during the conversation. At paragraph 47, the Court of Appeal held that: ...Proof that an accused could instruct and consult counsel in private only by whispering or by some other unusual device does not meetthe test of privacy. An accused who believes that his conversation will be overheard by the police will of course be substantiallyprejudiced in making use of his right to retain and instruct counsel.

That does not mean, of course, that every accused who has such abelief, no matter how unreasonable, can assert that his right to retain and instruct counsel has been infringed. Where the circumstancesare such that an accused would reasonably believe that his conversation to retain or instruct counsel could be overheard by the police, itcannot be said that his right to privacy has not been infringed unless it can be shown that he was in fact able to retain and instruct counselprivately. In Playford, the Court found that the two telephone calls were not made in private.

Police constables were in full view of and close to theaccused and overheard and made notes of what he said during the telephone conversations. In LePage, the accused was permitted to telephone a lawyer from his own home. The officer stood five or six feet away during the call. It was clear to the accused that he could exercise his right only in the presence of the officer. In McKane, the accused and the officer were in a small consultation office. The accused asked the officer for privacy.

Instead of leavingthe room, the officer moved some eight feet away within the small room, which did not permit the accused to consult counseluninhibited by the presence of the officer. The Court emphasized that the accused is not required to make a request for privacy. Theright to privacy is inherent in the right to retain and instruct counsel. In the more recent Ontario Court of Appeal decision in R. v. Cairns, (ON CA), [2004] O.J. No. 210, the accusedwas given a phone to speak to duty counsel while she was in the holding cell.

The holding cell was equipped with a video camera whichhad no audio monitoring capability. The accused was not told about the camera and did not say anything to the police or act in a mannerso as to indicate that he had any concern about the video camera. There was no evidence that the accused had discussed her concernwith duty counsel during their conversation. In Cairns, the Court of Appeal emphasized that the right to retain and instruct counsel includes the right to do so in private. The Courtfound that the accused did, in fact, speak to duty counsel in private.

The police could not and did not overhear her conversation with dutycounsel. The Court held that in cases where there is no actual invasion of privacy, there may still be a breach of

section 10(

b) where theaccused establishes that he believed that he could not retain and instruct counsel in private and further, that such a belief was reasonablein the circumstances.

The Court noted that the accused spoke to duty counsel for several minutes and gave no indication to the officer of any concern that her conversation was not in private, made no inquiry of the officer, did not suggest that her conversation was inhibited and duty counsel did not complain. The Court held that based on the totality of those circumstances, it was open to the trial judge to conclude that the accused had not established on a balance of probabilities that she had a reasonable belief that the officers were able to overhear her conversation.

The burden is on the accused to establish on a balance of probabilities that his right to counsel has been violated. In the present case, the police could not and did not overhear Mr. Williams’ telephone conversation with duty counsel. He was alone in the cellblock and the booking area and was being monitored only by video. I find that Mr. Williams did, in fact, speak to duty counsel in private. As held by the Court of Appeal in Cairns , where there is no actual invasion of privacy, there may still be a s. 10 (

b) breach where the accused establishes that he believed that he could not retain and instruct counsel in private and that such a belief was reasonable in the circumstances. In the present case, Mr. Williams spoke to duty counsel for three minutes. He gave no indication to the officer of any concern that his conversation was not in private, not even when the officer asked him if he would like to speak to another lawyer. He did not act in any manner so as to indicate that he had any concern about privacy or his conversation being overheard.

There was no evidence that he discussed his concern with duty counsel, nor did duty counsel raise any concern with the officer when the officer spoke to duty counsel after the call. Mr. Williams did not make any inquiry of the officer. Mr. Williams is not required to request privacy. In circumstances where he was, in fact, afforded privacy, he is required to establish on a balance of probabilities that he believed he could not retain and instruct counsel in private and that such a belief was reasonable. Mr. Williams admitted that his recollection of events was not 100 percent.

He was completely wrong about the sequence of events. His testimony did not have indicia of reliability. His testimony that he heard voices did not have any context, and he did not say or do anything at the time that would suggest his conversation with duty counsel was inhibited in any way. He did not make any inquiry of the officer. Mr.

Williams' after-the-fact bare assertion that he believed his conversation could be overheard is not sufficient to establish on a balance of probabilities that, at the time he was exercising his rights to counsel, he reasonably believed that he could not retain and instruct counsel in private. Mr. Williams did not have a reasonable belief that the police or anyone was able to overhear his conversation with duty counsel. On the totality of the evidence on the voir dire , Mr. Williams has not established on a balance of probabilities a breach of his rights as guaranteed by

section 10(

b) of the Charter . The Charter Application is dismissed. The Crown has proven beyond a reasonable doubt all the essential elements of the offence. Accordingly, Mr. Williams, I find you guilty of the November 26th, 2015 offence of operating your motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of your blood, contrary to section 253(1) (

b) of the Criminal Code . J U D G M E N T C O N C L U D E D