R. v. MacGregor, 2019 ONCJ 80

ONTARIO COURT OF JUSTICE CITATION: R. v. MacGregor , 2019 ONCJ 80 DATE: 2019 01 25 COURT FILE No.: 170417 BETWEEN: HER MAJESTY THE QUEEN — AND — MICHAEL RYAN MacGREGOR Before Justice Pieter Joubert Heard on March 1, 2018 Reasons for Judgment released on January 25, 2019 Tara Schuck......................................................................................... counsel for the Crown Laura Metcalfe.............................. counsel for the defendant Michael Ryan MacGregor JOUBERT J.: 1.

Introduction and Overview [ 1 ] The defendant Michael Ryan MacGregor is charged with one count each of impaired operation of a motor vehicle and operating a motor vehicle with a blood alcohol concentration of over 80 milligrams of alcohol in one hundred milliliters of blood, contrary to sections 253(1) (

a) and (

b) of the Criminal Code of Canada (hereinafter, “ Criminal Code ”). The offences are alleged to have occurred in Dryden, Ontario, on May 20, 2017. [ 2 ] The trial proceeded before me on March 1, 2018, at which time the impaired operation count was withdrawn at the request of the Crown. The defence had filed an application alleging violations of Mr. MacGregor’s right to counsel as guaranteed by

section 10(

b) of the Charter of Rights and Freedoms (hereinafter, “ Charter ”). The trial proceeded on a blended basis. On consent, the Crown tendered into evidence the Certificate of a Qualified Technician (Exhibit 1). The Crown then called the arresting officer, Police Constable Olson, who was also the breath technician in the case. During the testimony the Crown tendered the breath room video (Exhibit 2). The defence then called its evidence.

On consent, defence counsel tendered an affidavit sworn by the defendant’s brother Andrew MacGregor (Exhibit 3) and an affidavit sworn by Ottawa defence counsel Bruce Engel (Exhibit 4). The defendant then took the stand and testified on his own behalf. [ 3 ] It is agreed that if the breath evidence is not excluded then the Crown has proven its case beyond a reasonable doubt. The defence contends, however, that the evidence establishes several violations of the defendant’s right to counsel and that admitting the breath evidence would bring the administration of justice into disrepute.

I am asked to exclude that evidence in accordance with s. 24(2) of the Charter and to enter an acquittal. The Crown contends that police did not violate the s. 10(

b) right to counsel. Should this Court disagree the Crown submits that the s. 24(2) does not favour exclusion of the evidence. Either way, the evidence ought to be admitted, and the defendant convicted. After receiving the submissions of counsel, I reserved my decision and subsequently provided brief oral reasons with written reasons to follow. [ 4 ] These are my written reasons for decision.

2. Findings of Credibility and Reliability [5] Before setting out my findings of fact, I shall first address the issues of credibility and reliability that have been raised in thiscase. [6] I would note that most of the facts in this case are not strongly contested. In fact, the Crown takes the position that there is littleor no conflict in the evidence. In respect of the viva voce evidence, the Crown submits that there are no material discrepancies betweenPC Olson’s testimony and that of the defendant. The two witnesses should be seen as equally credible.

In relation to the defence affidavitevidence, I observe that when the evidence was tendered by the defence the Crown expressed a concern about the relevance of thatevidence to the issues before this Court. The Crown did not raise an issue of the admissibility of the affidavit evidence. Neither partyrequired that either Andrew MacGregor or Bruce Engel attend for examination. No issue was raised about the credibility or the reliabilityof either deponent.

As I understand it, the Crown contests not the contents but the relevance of that evidence. [7] The defence submits that while the testimony of PC Olson and Michael MacGregor is largely not in conflict, discrepancies doexist.

Some of these discrepancies pertain to factual issues that are important to decide the issues raised in the Charter application.Defence counsel also submits that material differences exist between the officer’s testimony at the trial and what was recorded in thepolice notes prepared by him on or about May 20, 2017 and in a Will-State statement that he prepared at the Crown’s request on July 7,2017. These discrepancies are submitted to raise concern about the credibility and reliability of PC Olson’s evidence.

Where the officer’stestimony at trial differs in any material way from the defendant’s version of events, I am asked to accept the defendant’s account andfind the facts in his favour. [8] I observe that neither party raises any concern about the two exhibits filed by the Crown. I have no difficulty accepting thatevidence to be credible and reliable. In respect of the defence affidavit evidence, the fact that the evidence was not challenged does notrender the contents, per se, reliable. As an example see Zhou v.

Canada (Minister of Citizenship and Immigration), 2013 FC 313, [2013] A.C.F. no 350 (F.C.J.) at para. 35. I consider the contents of both defence affidavits in relation to the evidence beforeme and I find both exhibits to be credible and reliable. I shall take the contents of all four exhibits into account in making my findings offact. [9] Turning to the viva voce evidence, I find that discrepancies do exist between the account of PC Olson and the account of thedefendant.

I also do find there to be discrepancies between the officer’s account and what he acknowledged in testimony he had (and hadnot) recorded in the police notes and the Will State statement. I find that some of these discrepancies are material. They pertain to factualissues that I must decide. I shall make specific reference to some of those discrepancies when setting out my findings of fact in the nextsection and when explaining my reasons for decision later on.

At this juncture, I make the following general findings of credibility andreliability for each witness beginning with defendant. [10] I had an opportunity to observe Michael MacGregor in testimony. I find that he presented as a sincere witness and that theevidence he gave was believable. I did not perceive him to testify in any manner that would suggest an attempt to spin the truth orexaggerate. He appeared forthright in his testimony and thoughtful in his responses. I find his evidence to be credible.

In terms of thereliability of the evidence, I find that the testimony was largely both internally consistent and consistent with the other evidenceincluding the events as captured on the breath room video, the affidavit evidence of Andrew MacGregor and Bruce Engel and with someexceptions (addressed shortly) the testimony of PC Olson. [11] There were moments where the specifics were lacking. As an example, Mr. MacGregor was unable to recall the precise wordsspoken by PC Olson at the roadside. I accept that the defendant is not someone with prior involvement in the criminal justice system.

He did not testify in a professional capacity and he was under no duty at the time (nor was he trained) to collect evidence. I do not viewthe lack of recall in these instances to render the account provided by him to be unreliable. I do perceive, however, that care is meritedfor those instances in which the recall of the witness is not clear. I shall take this into account in making my findings of fact but generallyspeaking find that the witness was able to observe, process, interpret, retain and recall the events in issue.

His evidence, generallyspeaking, is considered to be reliable. [12] I also had an opportunity to observe PC Olson and to consider his testimony. In terms of credibility, I find that his testimonyappeared for the most part to be sincere and believable. That being said, I did get the impression that PC Olson was less patient with theapplicant on May 20, 2017 than he would have this Court believe. I have taken into consideration the submissions of Crown and defencecounsel.

I make the general observation that some of the answers provided by the officer, the officer’s tone as captured on the breathroom video, the comments he made to the defendant when denying him a drink of water, and the officer’s behavior as described by thedefendant in testimony suggest, together, a level of frustration and impatience that goes beyond what is suggested in the officer’stestimony. I also had the impression that, although PC Olson appeared to remember many of the details of May 20, 2017, his memorywas at times less clear on the specifics than what his testimony suggested.

I did not perceive this to be due to insincerity so much as astruggle, at times, to recall details in circumstances where he had not made a record of particulars in his force issued notebook. As I shallexplain, this had an impact on the believability of the evidence.

So did some of the responses provided by PC Olson, most notably, hisposition on the purpose in making police notes which I shall discuss momentarily. [13] Respecting the reliability of PC Olson’s evidence, I have no difficulty whatsoever in accepting those parts of the officer’stestimony that are consistent with what the evidence reflects had been recorded by the officer in his notes.

I also have no difficulty inaccepting that PC Olson had an independent recollection of many of the specific events that occurred on May 20, 2017 although, again,the impression that this Court had was that the officer’s memory was, at times, less clear than what was being suggested. But the defencecross-examination established that the notes relied upon by the officer to refresh his memory were far from complete and omitted crucialdetails of what did, or did not, happen on May 20, 2017.

From the answers provided by PC Olson it appears that for critical points in theevening what was recorded may best be described as the bare-bones. It is clear that for this reason the Crown requested the further WillState statement from the officer and that this further record also turned out to omit details that are relevant to the issues that are raised inthe defence Charter application. [14] Such a state of affairs presents a real challenge to this Court. On the one hand, I readily appreciate that a great deal of what the

officer describes is not internally inconsistent and is supported by other evidence. On the other hand, care must be taken in decidingwhether to accept the version provided by PC Olson at trial where that version differs materially from the accounts provided by otherwitnesses (Michael MacGregor, Andrew MacGregor, or Bruce Engel) or from the record or records of events made by police in thiscase. The situation is made all the more difficult by the position that PC Olson took when questioned by defence counsel regarding theduty to make notes.

The officer was provided with more than one opportunity to explain what is required of police. He repeatedlytestified that for him the purpose in making notes is to refresh memory. He would not agree with the defence that there was any otherreason. The position taken by the officer was defended by the Crown in its closing submissions. The Crown submitted that policeofficers frequently find themselves in dynamic situations and that the notes of PC Olson were sufficient to perform the task of refreshingmemory.

The Crown submitted that police cannot be expected to anticipate every type of question that will be asked at a trial. As Crowncounsel put it, “We are playing Monday night quarterback here in court”. [15] With due respect, I cannot agree. Undoubtedly, police officers can find themselves in situations where it is impractical or evenimpossible to make a record of the events as they are unfolding. But nowhere did the officer testify that he found himself in such asituation. There is no evidence before me that such was the case.

If anything, the evidence before me suggests there was ample time forthe officer to comply with the note-taking duty. That duty has been summarized by several courts, most notably in Ontario by the Courtof Appeal for Ontario in Schaeffer v. Ontario, 2011 ONCA 716 , [2011] O.J. No. 5033 (C.A.) at paras. 66-78, and by theSupreme Court of Canada in Wood v. Schaeffer, 2013 SCC 71 , [2013] S.C.J. No. 71 (S.C.C.) at paras. 65-68.

I shall notreproduce those paragraphs here but simply note that the duty upon PC Olson went well beyond merely recording whatever he felt mightassist him to refresh his own memory at some later date. Police are duty-bound to make a clear, concise and comprehensive record of allparticulars material to the investigation. [16] In recording only what he felt might be needed to refresh his own memory, PC Olson did not comply with the duty as describedin Schaeffer and in Wood.

As I shall explain in the findings of fact and contrary to what is suggested by the Crown, the failure of PCOlson to comply with the note-taking duty resulted in testimony that calls into question the reliability of the officer’s recollection ofcrucial moments in the evening. The testimony also calls into question the sincerity of the officer. This is because the duty described inSchaeffer and in Wood is not new.

As Moldaver J. put it at para. 68 of Wood: “None of this, of course, comes as news to police officers”.On the date of the trial, PC Olson had a collective fourteen years of experience with the Ontario Provincial Police and the Dryden PoliceService. It would be surprising, to say the least, if the officer had never been trained in a manner that would bring home the nature andscope of the note-taking duty.

I have had the opportunity to observe the officer in his evidence and I find myself unable to accept that hewas not aware at the time of trial that his obligations extended well beyond recording what he felt would be required to refresh hismemory. I find that the officer was aware more was required and was not being fully candid with the Court on that point. [17] In my view, the present case illustrates what the decision in Schaeffer and in Wood concerning police note taking seeks toavoid. The failure to record clearly all particulars on the record before me led the Crown to request further information.

It may well be,as the submissions of the Crown appear to suggest, that the officer was at that point engaged in some form of ex post facto guesswork inan effort to determine which details about the incident that had not be included at first instance might be relevant to issues that might beraised by the parties at trial. But the submission that police cannot be expected to anticipate every question respectfully misstates theissue. The role is to collect and preserve all of the relevant particulars, period.

As I shall illustrate in the next section, the result at trialwas testimony which at many points appeared to be reliable but which at other junctures appeared considerably less so. The trier of factis in the unenviable position of having to engage in a very careful consideration of what was, and was not, recorded by the officer and ofwhat this means in light of the other evidence. I shall do so in my findings of fact and note at this juncture that while I am certainlyprepared to accept much of the officer’s testimony I do not accept all of it.

I shall exercise care where the evidence was not clear andwhere it diverges in material ways from the other evidence before this Court or differs from what the evidence indicates was recorded inthe police notes and the Will State statement. 3. Findings of Fact [18] I make the following findings of fact. 3.1. At the Scene [19] On the date of the incident, May 20, 2017, the defendant was working in Dryden, Ontario. [20] At approximately 12:30 AM, PC Olson was on general patrol in a marked police vehicle travelling westbound on Highway 17in Dryden near the intersection of Airport Road.

PC Olson observed a vehicle travelling eastbound at what he perceived to be a high rateof speed. He activated his radar unit which indicated that the subject vehicle was travelling at 115 kilometers per hour in a 90 kilometersper hour zone. The officer turned the police vehicle around and pursued the subject vehicle effecting a traffic stop shortly thereafter in aprivate driveway off Meadows Road. [21] PC Olson exited the police vehicle and approached the subject vehicle. The lone occupant and driver, Michael MacGregor,exited the subject vehicle.

On the basis of observations conceded by the defence to form the basis for lawful grounds to make anapproved screening device demand, PC Olson made a roadside demand at 12:34 AM. The demand made by the officer, reading from therear of his force issued notebook. The defendant indicated that he understood. [22] At 12:40 AM, a suitable breath sample was obtained from the defendant which registered a fail.

PC Olson showed the results tothe defendant at 12:43 AM and arrested him for operating a motor vehicle having consumed alcohol in such a quantity that theconcentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood. PC Olson provided thedefendant his right to counsel and secondary cautions, reading from the rear of his force issued notebook. The defendant in testimonywas not clear as to the words used.

I accept the wording that the officer read in Court from the back of his notebook: It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone anylawyer you wish. You also have the right to free advice from a Legal Aid Lawyer. If you are charged with an offence you may apply tothe Ontario Legal Aid Plan for assistance, 1-800-265-0451 is the number that will put in contact with a Legal Aid Duty Counsel Lawyer

for free legal advice right now. Do you understand? Do you wish to call a lawyer now? [ 23 ] The defendant indicated that he understood. He asked to speak with his brother Andrew MacGregor. I find that Andrew MacGregor was not, in fact, a lawyer. The defendant was asked in testimony why he would have asked to speak with his brother and he testified that Andrew MacGregor had studied law in university and that he did not know in what direction to go at that time. I accept the explanation provided by Mr.

MacGregor and I also accept the affidavit evidence of Andrew MacGregor that on the date in question he held a Bachelor of Arts degree in Law and Philosophy and had a record of employment that included employment with two criminal law firms. One of those firms was Engel & Associates Professional Corporation, located in the Ottawa area. Andrew MacGregor had worked there in 2013 as a student intern. I also accept the evidence of the defendant that he had no prior experience with the criminal law. The wording from the force issued card (above) includes the words “counsel” and “lawyer”.

I find it not unreasonable for the defendant as someone unexperienced with the criminal justice system to name his brother, for the reasons he provided in Court. [ 24 ] I would observe that the explanation provided by the defendant at trial is reflected in the comments that he made in the breath room which PC Olson agreed were as follows: “yeah it turns out he’s not a lawyer, that he’s not able to be my legal counsel” (referring to Andrew MacGregor). I accept the evidence of PC Olson that identifying someone who is not actually a lawyer is not unusual.

He testified that it is not uncommon for accused persons to name parents, aunts or uncles when asked if they wish to speak with a lawyer. In all of the circumstances, I find that the defendant, while clearly incorrect in identifying Andrew MacGregor as a lawyer or legal counsel at the scene, was seeking to assert his desire to speak with someone whom he believed could assist him in understanding the legal dilemma that he faced. [ 25 ] The defendant could not recall the telephone number for Andrew MacGregor. He asked PC Olson to obtain his brother’s contact information.

He indicated that his brother’s number could be found within his cellular telephone and that the telephone was located in his vehicle. PC Olson retrieved the defendant’s telephone. He then then provided the keys to the defendant’s vehicle to another police officer who had arrived on scene. 3.2. The Telephone Call to Andrew MacGregor [ 26 ] At 12:53 AM , PC Olson transported the defendant to the Dryden Police Services detachment arriving at 1:04 AM . The officer escorted the defendant to an interview room located in the lodging area.

He removed the defendant’s handcuffs and permitted him to retrieve his brother’s telephone number from his cellular telephone. PC Olson did not permit the defendant to dial his brother’s number or to retain the telephone. The defendant was also not permitted to place any telephone calls, on his own, using a telephone located within the interview room. [ 27 ] At 1:09 AM , using the interview room telephone PC Olson placed a call to Andrew MacGregor. Mr. MacGregor told the officer that he was not a lawyer but that he wished to speak with the defendant.

The officer permitted him to do so and then went on to conduct diagnostic tests in relation to the Breathalyzer which he completed by 1:11 AM . PC Olson then waited for the call with Andrew MacGregor to conclude. [ 28 ] The telephone conversation between the defendant and Andrew MacGregor lasted until 1:38 AM . During that time, Andrew MacGregor told the defendant that he needed to contact counsel, Bruce Engel, and helped him to locate a telephone number for Mr. Engel. I have considered the explanation given by the defendant why the conversation with Andrew MacGregor took the time that it did.

I am prepared to accept his explanation, which is that Andrew MacGregor was not at home when he received the telephone call. It was a Friday evening and the defendant’s brother was at a bar. His cellular telephone did not have a data plan. He therefore kept the defendant on the telephone while searching for, and ultimately locating, a friend in a nearby establishment whose cellular telephone he could use to locate a number for Mr. Engel. The Crown does not raise as an issue the veracity of the defendant’s account but has raised the issue of his diligence.

I do not find that the time spent on the telephone was due to any intentional delay or to any lack in diligence on the defendant’s part. [ 29 ] I make these findings mindful of the testimony of PC Olson. The officer testified that the length of the defendant’s telephone call to his brother was not typical. He testified that in his experience a conversation with a lawyer in an impaired case generally does not take more than five or ten minutes. He testified that a call as lengthy as the one here would normally suggest a delay tactic.

PC Olson acknowledged encountering situations where the conversation between detainees and their lawyers continued beyond five or ten minutes. He testified that in some cases the discussion becomes, in his perception, “a little long-winded”. In those situations, he knocks on the door to let them know it is getting on in time and to conclude their telephone conversation as soon as they can.

I do not view the testimony of PC Olson to militate against the simple conclusion that in this case the delay is simply a function of the fact that it took the time that it did for Andrew MacGregor to assist the defendant in the manner described. [ 30 ] In the moments preceding 1:38 AM , PC Olson knocked on the interview room door. He pointed to his watch. In response, the defendant told his brother to hurry in helping him to find a telephone number. As the evidence of both witnesses supports, the defendant was not provided a means to note down the telephone number that his brother had located.

He therefore motioned to PC Olson, who wrote down the number provided to him verbally by the defendant. 3.3. The Attempt to Reach Counsel of Choice [ 31 ] At 1:39 AM in the presence of the defendant, PC Olson dialed the telephone number that Andrew MacGregor had provided using the interview room telephone. The number dialed was the cellular telephone number of Bruce Engel. The call went to voicemail and PC Olson left a voice message identifying himself and indicating that he had an accused person in custody.

I accept the evidence of PC Olson that there was no after-hours or alternative telephone number indicated on the voice messaging system. I accept the affidavit evidence of Mr. Engel that the voice message left by the officer did not indicate the name of the accused.

[ 32 ] PC Olson had access to the Internet at the Dryden Police Station and he could doubtless have attempted to search for an alternate telephone number for Bruce Engel using a search provider. I accept the testimony of the officer that he did not do so. I accept the affidavit evidence of Bruce Engel that the search provider Canada 411 at the time in question listed the home telephone number for Mr. Engel and that this is the best way to reach him after hours. I also accept his evidence that the search provider Legacy 411 provides five telephone numbers for Engel and Associates.

From the evidence tendered I infer that, had PC Olson chosen to do so, he could have engaged in internet searches which would have yielded other telephone numbers for Mr. Engel and his law firm. I find that one the numbers readily available by such a search was the home telephone number for Mr. Engel. I accept the affidavit evidence of Mr.

Engel that, had the officer dialed his home telephone number on the evening in question, he would have either answered immediately or called back shortly thereafter. [ 33 ] I accept the evidence of PC Olson that the Dryden Police Service does not have in place any policies or practices respecting use of the Internet to search for alternate telephone numbers for counsel.

I do not accept the officer’s testimony that he chose not to engage in an internet search in this case because he felt the defendant had spent enough time on the telephone with Andrew MacGregor and because he felt that the call to Bruce Engel was sufficient. It did not ring true and the impression that I had in the testimony was that the idea simply did not cross the officer’s mind. 3.4. The Discussion Surrounding and Call to Duty Counsel [ 34 ] The evidence of PC Olson and the defendant diverges as to what happened after the voice message had been left. [ 35 ] PC Olson’s version is as follows.

He told the defendant that the lawyer dialed had not answered. He indicated that the time in Ottawa was 2:39 AM. He indicated that it was a Saturday. He then “asked for further direction”. PC Olson testified that he told the defendant that “[he’d] be happy to connect him with Mr. Engel in the event he called back but if he wanted to provide an alternative, to do so”. He testified: A. I indicate that there’s a phone book and he was told that in the other room too. There’s a phone book, there’s yellow pages that include a lot of names of lawyers, I’ll contact whoever you want. Q. Okay. A.

So I was just looking for further direction on what he wanted to do. Q. Okay. And how did Mr. MacGregor reply to that? A. He requested that I contact duty counsel. [ 36 ] Mr. MacGregor’s version is as follows. PC Olson left the interview room and returned with a telephone book. He placed the telephone book on a desk beside Mr. MacGregor. The officer then told him that his lawyer had not picked up the telephone and he could not get in touch with him. He told the defendant that it was 2:30 AM in Ottawa. He said that he could call a lawyer from the phone book or call duty counsel. Mr.

MacGregor testified that he requested duty counsel. [ 37 ] In deciding what the defendant was told I observe that the officer’s notebook entry is of little or no assistance. In cross- examination, PC Olson agreed that he had recorded only the following: 0139. Attempt to contact lawyer Bruce, 613-282-6324, left message. And at 0142 [the officer’s next note] is contact duty counsel 1-800- 265-0451, Murphy There is no reference to Bruce Engel, or to a telephone book or its location, or to local lawyers, or to seeking further direction. There is no notation about the nature of the discussion concerning duty counsel.

Indeed, there is no record of a conversation at all. [ 38 ] I also observe the following in relation to the testimony as the direct examination continued: Q. Okay. And when he requested that, did he specify what kind of duty counsel or how did he indicate to you that he wanted duty counsel? A. That was one of the options that I made him aware. I said you know , the phone book, you can contact any lawyer you want, there’s duty counsel; they’re 24 hours, you know you can talk to somebody right now type deal . He said yeah, contact duty counsel . (emphasis mine) The answer given is troubling. It is decidedly vague.

I had an opportunity to observe and to hear the witness in testimony. The very clear impression that I had was that PC Olson was having difficulty remembering the details. From the cross-examination, it became clear that the Will State statement made no reference to the officer having indicated he would place the defendant in contact with Mr. Engel if counsel of choice were to call back. [ 39 ] The above instance illustrates the challenge that I have encountered as trier of fact in considering the evidence of PC Olson. I need not review each and every instance of vagueness.

The point is that I am concerned about the ability of the officer to accurately recall the discussion that took place between him and the defendant between 1:39 AM and 1:42 AM and at other points in his evidence as well. This is as unfortunate as it was avoidable for at least two reasons. First, as I have already indicated PC Olson was in a position where an accurate and complete record could easily have been made by him. All he needed be do was comply with the note-taking duty. I see no pressures that would have prevented him from doing so.

Second, PC Olson testified that the interview room in question was outfitted with a surveillance video camera which he indicated would have created a video recording of the discussion. The video recording was not preserved by police and was automatically taped over. [ 40 ] I understand from the evidence adduced in cross-examination of PC Olson that the Dryden Police Service utilizes a system that

stores for each surveillance camera a maximum number of incidents. Once the maximum is reached the incidents are recorded over insequence. The retention period varies per camera. For the interview room surveillance camera the period is short. The video recordings,unlike breath room video recordings, are not automatically disclosed. Police require that a request be made by the defence. The requestis forwarded by the Crown to police through the Court officer. The testimony is unclear whether a policy is in place to that effect.

Whenasked, PC Olson responded that the “practice” of the Dryden Police Service is to not request that the administrator obtain the footagebeyond the breath room video unless a request is made. Once received, he testified that the police “try to collect the video …. if thatadditional disclosure came in, we would try and accommodate”. I do not find that the testimony clearly indicates to what extent PCOlson was involved in a search to locate and preserve the video in the present case. The testimony in-chief, “upon receiving the requestfor that video, it had already been kicked over”, was in the passive voice.

In cross-examination when shown a copy of the defencedisclosure request dated July 15, 2017, the officer could not recall having previously reviewed the document. [41] The defence asks that I take the loss of the video into consideration in making my findings of fact respecting the interview roomdiscussion. The defence does not bring a lost evidence application. However, it is submitted that the issues turn on what the officer saidto the defendant. Relying on R. v.

Nikolovski, (SCC), [1996] 3 S.C.R. 1197 (S.C.C.), defence counsel argues that videoevidence is the most important evidence this Court could have and that the loss of such evidence should be considered when assessingthe credibility and reliability of PC Olson. The Crown interprets the defence to argue that the failure of the officer to retrieve the videogoes to his credibility.

In response, the Crown submits that the date of the Will State statement of July 7, 2017 confirms that the officerwas “already looking into the issue” prior to the request for the additional disclosure and that there are reasons that the police in Drydenwait for additional disclosure requests. The Crown also submits that it ought also to be considered “that this was taking place in aninterview room, where Mr. MacGregor was mostly speaking with his counsel”.

It is submitted that “PC Olson made the right decision innot automatically retrieving that video when it would have been potentially recording the conversation that he’d had in relation to hiscounsel” (emphasis mine). [42] If it is the case that the police in Dryden are utilizing a video recording system that automatically records the telephonediscussions between detainees and their counsel or duty counsel, then this issue must be addressed immediately. I would refer to thedecision of Rose J. in R. v. Gautam, [2017] O.J.

No. 4418 (C.J.), in confirming that detainees have a reasonable expectation of privacywhen being recorded in custodial settings, and in confirming that “[t] he space in which an arrestee speaks to a lawyer has the highestlevel of privacy. In that space the state may not intrude”. It would be most impermissible for a surveillance video recording system to beindiscriminately recording everything including solicitor-client privileged conversations. [43] On the record before me, I cannot determine if this is the case or not. PC Olson testified, “I am the furthest thing from the I.T.guy at the Dryden Police”.

No information technology representative was called to give evidence. The evidence is silent on such crucialissues as whether the recording system remains engaged when the room’s telephone system is accessed. The evidence is simply that avideo surveillance system of some sort records what occurs in the interview room and then retains it for a comparatively brief period oftime before the video record is automatically recorded over.

The evidence is that the video surveillance system was engaged on theevening in question and I can infer that it would have made a video record of the interaction between PC Olson and Mr. MacGregor. Theevidence is not clear what specifically was done by the officer to preserve a copy of the video but it is clear that a request for it was madeby the defence within 60 days of the event and that video record was not preserved. [44] I find that the appropriate treatment of the defence request is to consider whether or not an adverse ought to be drawn.

Clearly,the failure or refusal of a party in litigation to provide relevant evidence, or the destruction of that evidence, can be grounds upon which aCourt may draw such inference. See R. v. Solomon, (ON SC), [2002] O.J. No. 5128 (S.C.J.), and R. v. Heikel (1990),110 A.R. 161 (Alta. Q.B.), citing at para. 132 Wigmore on Evidence, Volume II, at p. 228. See also R. v. Tanner, [2010] N.S.J. No. 114(N.S.S.C.), both decisions.

I see no reason why a negative inference cannot be drawn in an appropriate case in which videotaperecordings created and maintained by police is lost or destroyed as a consequence of either the actions of individual officers or thepolicies or practices governing preservation and retention or both. [45] In deciding whether to draw an adverse inference in the present case, I observe the following. The lost evidence was created bythe state while the accused was detained. It was made using a recording system under the exclusive control of police.

The defendant hadno choice in participation and had no direct means by which to access or preserve the video evidence. I agree with Murray J. in Heikel atpara. 130 that if the accused has a right to discover relevant or material evidence (there documents, here a video) then the accusedlikewise has the right to require that the Crown preserve the information. I also observe that the lost evidence was of obviousimportance. It recorded one of the central moments in the events of May 20, 2017.

It was also a video record and I agree with thecomments of defence counsel on the importance of video evidence as was stressed in Nikolovski. Its loss leaves the party that owes theburden of persuasion without evidence that would be capable of confirming facts central to the Charter application.

The onlycontemporaneous substitute to the information is a notebook entry which fails to meet the standard required by Schaeffer and Wood.From what is before me in evidence, I do not observe that either the Dryden Police Service, through its practices, or the officer in thepresent case, took sufficient steps to preserve the evidence in question which may have been destroyed as soon as within 60 days of itscreation. [46] This case is in my view an appropriate one in which to draw an adverse inference. I decline to do so, however, because I view itunnecessary in light of my finding that the s. 10(

b) Charter right of the defendant was violated. An adverse inference even if it weredrawn would simply not affect the outcome of this case. I am faced with testimony from an officer whom I find was attemptingreconstruct the events in question from what was undoubtedly a vague recollection of what was said between him and the defendant. Inthe circumstances, while I am prepared to accept that the time recorded in the notes of the officer accurately reflects the time of thetelephone call to Bruce Engel, I am prepared to accept the version of events provided by Mr.

MacGregor as to what the officer told him. [47] I find that PC Olson told the defendant that his lawyer had not picked up the telephone and that PC Olson could not get in touchwith him. I am not prepared in all the circumstances to rule out the possibility that the time reported by PC Olson to Mr. MacGregormay have been rounded down (i.e. “0130”) as opposed to precise (i.e. “0139”). Regardless, I find that PC Olson told the defendant thathe could call a lawyer from the phone book or call duty counsel and that as a result the defendant opted to have a call placed to dutycounsel.

I accept the defendant’s evidence that he believed that the only options at the time were to either call a lawyer from thetelephone book or speak with duty counsel. This is consistent with his general level of understanding about the legal system. I accept his

evidence that he felt hurried and therefore immediately chose to call duty counsel. I accept his testimony that he was not told that hecould wait for Mr. Engel to call back and that he would have done so had he been given that opportunity. I accept the reason given byhim why he did not ask the officer to wait for Mr. Engel to call back which was that the officer had put the question to him very franklyand that he did not realize he had that option available. I accept that he did not ask to call his brother back for the same reason.

I havealready found as a fact that PC Olson had gestured to him to end the call with Andrew MacGregor and I find, on the whole of theevidence available to me, that the officer was conveying an air of impatience. 3.5 Events in the Breath Room [48] The defendant spoke with duty counsel from 1:42 AM until 1:53 AM. He was then escorted by PC Olson to the breath room. PC Olson is a qualified breath technician. A brief discussion ensued on video involving the review that I have already discussed.

I acceptthat the officer [49] PC Olson then provided instructions and demonstrated how to provide a breath sample into the Intoxilyzer 8000C approvedinstrument. During the discussion, Mr. MacGregor requested a drink of water. He indicated he had not had an opportunity to do so. PCOlson denied his request. The defendant persisted and PC Olson told him that he had put himself in a position where he now had to takethe breath test. [50] The first breath sample was obtained at 2:07 AM. The result was 118 milligrams of alcohol in 100 milliliters of blood.

Thedefendant asked for the result but PC Olson would not provide it. I accept the evidence of the defendant that he requested the resultbecause he wanted to know what kind of a situation, he was in. He was not sure that he would be over the limit and did not know wherehe stood and whether he was going to be charged or not. I also accept the evidence of the defendant that, had he learned that was over 80,he “probably would have asked [PC Olson] if there’s any way that I can you know speak to somebody about how I proceed from there”.

The defendant did not pursue his request any further and a second suitable sample was obtained at 2:30 AM. The result was 107milligrams of alcohol in 100 milliliters of blood. Following the second sample, the defendant was provided the results of both samples. He was subsequently charged and released on a Promise to Appear. [51] At approximately 4:45 AM, Bruce Engel telephoned police seeking to speak with the defendant. I find that Mr. Engel was toldthat the defendant had provided two suitable samples and was in the process of being released, and that he no longer needed to speakwith Mr. Engel.

I find that the defendant was not released until 5:15 AM. 4. The Issues and the Positions of the Parties [52] As I have already indicated, the issues in this case are whether the evidence in establishes that the defendant’s right to counselunder

section 10(

b) of the Charter was violated and, if so, whether admitting the breath evidence would bring the administration ofjustice into disrepute thereby warranting exclusion under s. 24(2) of the Charter. [53] The defence submits that the

section 10(

b) Charter right was violated in four ways. First, PC Olson failed to properly informthe defendant of the obligations of police including the obligation to wait a reasonable period of time following an unsuccessful attemptto contact choice of counsel. The defence submits that the right to counsel was not waived. Second, the officer failed to wait areasonable period of time (here, only three minutes) before contacting duty counsel. Third, PC Olson did not do enough to facilitatecontact with counsel of choice, Bruce Engel (here, leaving only one voicemail).

Lastly, the officer failed to provide the defendant withhis breath result after the first sample was taken. The defence submits that the test set out by the Supreme Court of Canada in R. v.Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 (S.C.C.), favours exclusion of the breath evidence. While conceding that the breathevidence is reliable, the defence submits that the Charter-infringing state conduct here was serious, that the impact on theCharter-protected interests of the defendant is significant, and that the samples ought therefore to be excluded. [54] The Crown submits that the defendant’s s. 10(

b) Charter right was not violated and that the breath sample should not beexcluded. The Crown submits that the defendant was provided with his rights to counsel at the roadside and again in the breath room. Iunderstand the Crown’s position to be that this was sufficient to discharge the s. 10(

b) Charter right. The Crown also submits that policeonly need to wait a reasonable period of time before contacting duty counsel and that they only need to do so when the detainee is beingreasonably diligent in exercising the right to counsel. It is the Crown’s position that the defendant here did not exercise reasonablediligence. The Crown also submits that in facilitating contact with a detainee’s lawyer of choice police only need to exercise reasonablediligence. In its submission, PC Olson acted diligently.

Lastly, the Crown submits that the officer was obligated to provide the result ofthe first breath sample to the defendant. The Crown submits that if this Court should disagree then on a balancing of the factors in Grantthe breath evidence should not be excluded pursuant to s. 24(2) of the Charter. It is submitted that the state conduct were not serious,that the impact on the Charter-protected interests of the defendant are not serious, and that society’s interest in adjudication on the meritssupport inclusion. 5. Did Police Violate the S. 10(

b) Charter Right of the Defendant? 5.1. Did Police Properly Inform the Defendant of the Right to Counsel? [55] The defence submits that PC Olson failed to sufficiently inform the defendant of the obligations placed upon police. Bynaming Bruce Engel in the interview room the defendant invoked counsel of choice at which point the officer was obligated not only totry to contact Mr. Engel. Having been unsuccessful, the officer was obligated to inform the defendant of the obligation imposed uponpolice to wait a reasonable time before continuing.

Defence counsel acknowledges that the right to counsel may be waived by thedefendant but submits that the evidence here cannot support a finding of waiver. In failing to inform the defendant of the policeobligation to wait, a violation of the s. 10(

b) right is said to have occurred. [56] The Crown submits that PC Olson discharged his duty when he read the defendant his rights at the roadside from the force-issued police notebook. Those rights were later repeated by PC Olson in the breath room. It is submitted that police are only obligatedto act in good faith and in a diligent manner and the officer acted in a way that adequately discharged his obligations. The Crown did notdirectly address the issue of waiver nor was it specifically addressed whether the officer, having been unable to reach Mr. Engel, was

duty-bound to inform the defendant of the police obligation to wait. But the Crown’s submissions are clear in advancing that the officeracting diligently and acting in good faith and that his actions were sufficient.

The Crown also submits that detainees must exercise theright to counsel with reasonable diligence and that the defendant failed to do so and that, if anything, he is responsible in that he told PCOlson that he understood the right at the roadside and he did not communicate any confusion or lack of understanding that he may havehad. [57] What underlies the disagreement is a question of who is responsible for informing whom about what. [58] A proper starting point is the decision of the Supreme Court of Canada in R. v. Bartle, (SCC), [1994] 3 S.C.R.173 (S.C.C.). I would refer to paras. 17-20.

Lamer C.J.C. describes the duties that are imposed upon state authorities in relation to s.10(

b) of the Charter. They include an informational duty, to inform detainees promptly of their right to retain and instruct counselwithout delay and of the existence and availability of legal aid and duty counsel. [59] At the heart of Bartle is the concern that detainees are given sufficient information to ensure that an informed decision can bemade by them about whether to exercise that right. This was recently underscored by Burstein J. in R. v. Manuel, [2018] O.J. No. 2955(C.J.).

At para. 25, Burstein J. held as follows: [a]lthough the focus of Lamer C.J.C.'s decision in Bartle was the information constitutionally required for a detainee to decide if theyeven want to call a lawyer, the broader purpose of s. 10(b)'s informational component was also discussed at length. In determining whatinformation must be provided to detainees about their s. 10(

b) rights, Lamer C.J.C. (for the majority) emphasized that the informationalrequirements of s. 10(

b) are intended to ensure that detainees can "make informed choices and decisions" about whether to exercise anyfacet of the guarantee under s. 10(b) (citing Bartle, para. 19). (Emphasis mine.) [60] Ensuring that the “broader purpose of s. 10(b)’s informational component” is met is vital. As Bartle makes clear, the right tocounsel is not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it the correlative duty upon police toprovide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended.

LamerC.J.C. held at para. 19 in Bartle: Under these circumstances, it is critical that the information component of the right to counsel be comprehensive in scope and that it bepresented by police authorities in a "timely and comprehensible" manner: R. v. Dubois, (QC CA), [1990] R.J.Q. 681(C.A.), (1990), 54 C.C.C. (3d) 166, at pp. 697 and 196 respectively.

Unless they are clearly and fully informed of their rights at theoutset, detainees cannot be expected to make informed choices and decisions about whether or not to contact counsel and, in turn,whether to exercise other rights, such as their right to silence: Hebert. Moreover, in light of the rule that, absent special circumstancesindicating that a detainee may not understand the s. 10(

b) caution, such as language difficulties or a known or obvious mental disability,police are not required to assure themselves that a detainee fully understands the s. 10(

b) caution, it is important that the standard cautiongiven to detainees be as instructive and clear as possible: R. v. Baig, (SCC), [1987] 2 S.C.R. 537, at p. 540, and Evans, atp. 891. (Emphasis mine.) [61] Referring to the decision in R. v. Evans, (SCC), [1991] 1 S.C.R. 869 (S.C.C.), Lamer C.J.C. continued at para.20 of Bartle: Indeed, the pivotal function of the initial information component under s. 10(

b) has already been recognized by this Court. For instance,in Evans, McLachlin J., for the majority, stated at p. 891 that a "person who does not understand his or her right cannot be expected toassert it". In that case, it was held that, in circumstances which suggest that a particular detainee may not understand the informationbeing communicated to him or her by state authorities, a mere recitation of the right to counsel will not suffice. Authorities will have totake additional steps to ensure that the detainee comprehends his or her s. 10(

b) rights. (Emphasis mine.) [62] Not surprisingly, the concept of “waiver” was approached in a similar way in Bartle. At para. 18, Lamer C.J.C. held that “thestandard for waiver will be high, especially in circumstances where the alleged waiver has been implicit”. At para. 20, he held: [T]his Court has stressed on previous occasions that, before an accused can be said to have waived his or her right to counsel, he or shemust be possessed of sufficient information to allow him or her to make an informed choice as regards exercising the right: R. v.

Smith(Norman MacPherson), (SCC), [1991] 1 S.C.R. 714, at pp. 724-29, and Brydges, at p. 205. (Emphasis mine.) [63] Bartle was heard by the Supreme Court of Canada together with four other cases: R. v. Matheson, (SCC),[1994] 3 S.C.R. 328 (S.C.C.), R. v. Prosper, (SCC), [1994] 3 S.C.R. 236 (S.C.C.), R. v. Pozniak, (SCC),[1994] 3 S.C.R. 310 (S.C.C.), and R. v. Harper, (SCC), [1994] 3 S.C.R. 343 (S.C.C.). Each case raised questions aboutthe scope of the state’s obligations with respect to duty counsel services under

section 10(

b) of the Charter. In my view, the companioncases reinforce the importance placed by the Supreme Court of Canada upon the broader purpose of the informational component. Thepoint is illustrated with reference to Prosper. At para. 43, Lamer C.J.C. held as follows: In circumstances where a detainee has asserted his or her right to counsel and has been reasonably diligent in exercising it, yet has beenunable to reach a lawyer because duty counsel is unavailable at the time of detention, courts must ensure that the Charter-protected rightto counsel is not too easily waived.

Indeed, I find that an additional informational obligation on police will be triggered once a detainee,who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice.At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of theobligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentiallyincriminating process until he or she has had that reasonable opportunity.

This additional informational requirement on police ensuresthat a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up. (Emphasismine.) At para. 44, Lamer C.J. held: Given the importance of the right to counsel, I would also say with respect to waiver that once a detainee asserts the right there must be a

clear indication that he or she has changed his or her mind, and the burden of establishing an unequivocal waiver will be on the Crown:Ross, at pp. 11-12. Further, the waiver must be free and voluntary and it must not be the product of either direct or indirect compulsion.This Court has indicated on numerous occasions that the standard required for an effective waiver of the right to counsel is very high:Clarkson v. The Queen, (SCC), [1986] 1 S.C.R. 383, Manninen, and Evans. As I said in Bartle, at pp. 192-94 and 206, aperson who waives a right must know what he or she is giving up if the waiver is to be valid.

That being said, it stands to reason that theright to counsel guaranteed under s. 10(

b) must not be turned into an obligation on detainees to seek the advice of a lawyer. (Emphasismine.) [64] In the present case, the Crown submits that police are only obligated to act in good faith and with reasonable diligence, and thatthey are only required to do so to the extent that the detainee is reasonably diligent in exercising the right to counsel. For support, theCrown refers to the decision of the Supreme Court of Canada in R. v. Willier, 2010 SCC 37 , [2010] S.C.J. No. 37 (S.C.C.) atpara. 35: Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(

b) entitles them to a reasonable opportunityto contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right torefuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to areasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and theurgency of the investigation: Black.

If the chosen lawyer cannot be available within a reasonable period of time, detainees are expectedto 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. As Lamer J. emphasized in Ross, diligence must also accompany a detainee's exercise of the rightto counsel of choice (pp. 10-11): Although an accused or detained person has the right to choose counsel, it must be noted that, as this Court said in R. v.

Tremblay, (SCC), [1987] 2 S.C.R. 435, a detainee must be reasonably diligent in the exercise of these rights and if he is not, thecorrelative duties imposed on the police and set out in Manninen ( (SCC), [1987] 1 S.C.R. 1233) are suspended. […][Emphasis: Crown.] [65] I do not agree.

The authorities that I have referred to make it clear that as a condition precedent to the expectations placed upondetainees (at whichever stage in the detention process that may be under scrutiny) police must discharge the informational duty in a waythat ensures that the detainee has sufficient information to permit a meaningful choice to be made about whether to exercise the s. 10(b)right. To interpret s. 10(

b) in the manner that is being proposed by the Crown would be to permit the right to counsel to be reversed inthose cases where the “good faith” and “diligence” of police may fall short of meeting the informational duty. The same point is made inManuel where Burstein J. highlights in bold and underline font the phrases “meaningful choices” and “a detainee should be fully advisedof available services” in the following passage from the Bartle decision (para. 21, cited in Manuel, para. 25): To conclude, because the purpose of the right to counsel under s. 10(

b) is about providing detainees with meaningful choices, it followsthat a detainee should be fully advised of available services before being expected to assert that right, particularly given thatsubsequent duties on the state are not triggered unless and until a detainee expresses a desire to contact counsel ... [Emphasis Burstein J.] [66] That the right to counsel was read at the roadside (or later in the breath room) does not, in this case, discharge the informationalduty. Not when the officer, clearly, became alive to the fact that the person named was not a lawyer or counsel within the meaning of s.10(b).

PC Olson in testimony was clear that Andrew MacGregor told him this. Further, the officer testified: “I’ve had people in the past who identified their parents and aunts and uncles as their lawyer and if that’s who they want to be theirlawyer, then that’s not for me to decide”. I am concerned by the position taken by PC Olson. It dismisses a real possibility that (here manifest) that the detainee might notunderstand what is meant by concepts such as counsel of choice.

Nor can it be appropriate for police to rely upon the conversationbetween a detainee and someone who identifies themselves as a non-lawyer to clarify for the detainee the nature of the s. 10(

b) right. Ifind that the defendant cannot be taken to have understood the nature of the right to counsel and that PC Olson cannot be taken to havebeen diligent in discharging the informational duty by assuming that the non-lawyer would fill in the defendant about what the right tocounsel entails. That the defendant had a right to choose which lawyer to use did not absolve the officer, in circumstances which suggestthat the defendant may well not have understood an essential component of the information being communicated to him, to go beyondthe mere recitation at the roadside and take additional steps.

In any event, I do not find that the Crown has met the very high test forwaiver and find that PC Olson, having been unable to reach Bruce Engel by telephone, was duty-bound to inform him of the obligationof police wait a reasonable period before proceeding further. [67] I refer in this regard to the decision in R. v. Vernon, 2015 ONSC 3943 , 2015 O.J. No. 4157 (S.C.J.). The accused wasarrested at 6:45 pm on a Sunday evening. He was advised of his right to retain and instruct counsel including the right to telephone anylawyer that he wished, as well as the right to free advice from a Legal Aid lawyer.

He indicated he wished to do so and indicated hislawyer was John Carruthers. The accused was brought to the station arriving at 7:23 pm. At 7:30 pm, the police officer called Mr.Carruthers’ office and left a message on the answering service. A minute later, at 7:31 pm, the officer called duty counsel and left amessage. Duty counsel called back at 7:45 pm. The accused was then advised by the officer that his lawyer had not called back and wasoffered an opportunity to speak with duty counsel, who was on the phone. The respondent accepted the offer and spoke with dutycounsel from 7:45 pm to 7:57 pm.

The accused expressed no concerns following his conversation with duty counsel, and breath sampleswere provided at 8:01 and 8:30 pm. [68] At trial, the accused testified that he would have liked to have spoken to his own lawyer. Relying on the decisions in R. v.Vizzari, 2012 ONCJ 394 (C.J.), and R. v. Ho, [2011] O.J. No. 3524 (C.J.), the trial judge held at paras. 67-69 (cited at para. 10 of theappellate decision): What is very similar [in] these two decisions of the Ontario Court of Justice, which obviously I'm not bound by, to our case at bar is thefact that the informational component of

section 10(

b) of the [Charter] has not been met. It is unrealistic to expect that someone who has

had no prior involvement in the criminal justice system to know [sic] that he must express some dissatisfaction about the advice he received from duty counsel or to know that he can insist on waiting to speak to a lawyer of his choice. In the case at bar, I find that ... Constable Catcher failed to properly inform Mr. Vernon that he had a right to wait a reasonable amount of time for his counsel of choice to call before providing the breath sample. He further failed to wait a reasonable amount of time for counsel of choice to call back before contacting duty counsel.

Finally, the police did not take all reasonable steps necessary to attempt to contact the counsel of choice. Constable Catcher specifically said that he was not expecting a reply from his message at the lawyer of choice's office as this was Sunday night of a long weekend. The police did not attempt to find or provide Mr. Vernon the opportunity to try to find the lawyer['s] residential phone number or to find other ways of contacting the lawyer of his choice.

In reviewing the totality of the circumstances of this case and by applying the ratios of the jurisprudence noted above, I am satisfied that the defendant, Matthew Vernon, was not given a reasonable time to consult his counsel choice and that the defence has established a breach of

section 10(

b) of the [ Charter ] on a balance of probabilities. [ 69 ] The Crown appealed the decision arguing in part that trial judge was wrong to conclude that the officer had failed to properly inform Mr. Vernon of the right to wait for counsel of choice to call back. The Crown relied on Willier . Ellies J. disagreed. At para. 25, Ellies J. held: In my view, Willier is not applicable in this case. The court in Willier distinguished Prosper on the basis that there was no issue of waiver in Willier , as there was in Prosper . This is entirely understandable, given the facts in Willier .

In that case, following his arrest, the police informed the accused of his right to counsel and facilitated a brief telephone conversation with duty counsel. The next day, the accused was offered another opportunity to contact counsel and left a message on the lawyer's answering machine. Afterwards, the police offered him an opportunity to contact another lawyer, which he declined. The police then advised the accused that it was unlikely his lawyer would be available until the next day and offered to contact Legal Aid, which offer the accused accepted.

The police waited approximately 50 minutes after the accused spoke with the Legal Aid lawyer before initiating an investigative interview. At the beginning of the interview, the police confirmed Mr. Willier's prior consultations with Legal Aid, re-informed him of his right to retain and instruct counsel, and offered him another opportunity to contact a lawyer before continuing with the interview, which he declined. [ 70 ] Ellies J. observed that the Court in Willier recognized the facts before it to differ considerably from those in Prosper .

Ellies J. wrote as follows at para. 26: After referring to the decision in Prosper , McLachlin C.J.C. and Charron J., on behalf of the majority in Willier wrote, at para. 39 : The circumstances of this case are not analogous. The concerns animating the provision of a Prosper warning do not arise when a detainee is unsuccessful in contacting a specific lawyer and simply opts to speak with another. In no way did Mr. Willier attempt to relinquish his right to counsel and thus any opportunity to mitigate his legal disadvantage. He made no attempt to waive his s. 10(

b) right. Instead, unsuccessful in contacting Mr. Royal, he exercised his right to counsel by opting to speak with Legal Aid. As such, the police were under no obligation to provide him with a Prosper warning, and its absence fails to establish a Charter breach. [Emphasis added.] At para. 32, Ellies J. held: This is a very different case than Willier . Here, immediately after leaving a message for the respondent's lawyer, the arresting officer contacted duty counsel.

Within 15 minutes of leaving that message, the respondent was provided with what seemed to him to be the only reasonable chance that he would get to speak to a lawyer. Although the officer testified that he would have allowed the respondent to speak to his lawyer of choice, had he called, the trial judge held that it was not clear whether this was explained to the respondent (para. 64). [ 71 ] The Crown subsequently sought leave to appeal arguing that the case raised questions about a detainee's obligation of diligence in a s. 10(

b) Charter application. The application was dismissed. The three member panel held as follows: In our view, this case does not raise those questions. On the findings of the trial judge -- ratified by the

summary conviction appeal judge -- the police officer failed to satisfy his obligations to afford Mr. Vernon (the detainee) not only a reasonable opportunity to contact counsel of his choice but also to facilitate that contact: see Traicheff , 2010 ONCA 851 , at paras. 2-3 . The decision of Ellies J. in Vernon , as it relates to the informational component, has since been followed in R. v. Duong , [2016] O.J. No. 5266 (C.J.) at para. 28 and in Manuel , and it may be noted that a similar conclusion was reached without reference being made to Vernon in R. v. Gopalapillai , [2017] O.J.

No. 1846 (C.J.) at para. 17 . [ 72 ] I find the facts in Vernon to be similar to the present case. I follow the decision at trial in finding it unrealistic to expect someone with no prior involvement in the criminal justice system to know that he or she can insist on waiting to speak to counsel of his or her choice. I find it equally unrealistic to expect that a non-lawyer with whom the detainee is permitted to speak can somehow be expected to advise him of that right. I find as in the Vernon decision that the officer failed to properly inform the defendant of that right.

I follow the appellate decision in Vernon before Ellies J. in finding that the facts in this case are safely distinguished from the facts in Willier . Here, almost immediately after leaving a message for Mr. Engel, the officer presented the defendant with options that effectively focused the defendant away from the option of waiting for Mr. Engel to return the call. Within minutes, duty counsel was contacted. I do not accept the testimony that the officer told the defendant that if his lawyer were to call back, he would be permitted to speak with the defendant.

I accept the testimony of the defendant that, had he been told that he could wait for Mr. Engel to call back, he would have waited.

I also accept his testimony that, had he been given the opportunity, he would have called his brother back for a different lawyer. [ 73 ] In reaching this conclusion I have considered all of the evidence including the context which includes, among other things, the knocking on the glass by PC Olson, his pointing to his watch, his reference to the time of morning and that it was a Saturday, and other behavior which in my view cannot but reasonably have been perceived, especially by someone unfamiliar with the criminal process, to mean that the detainee must move along.

I have also considered whether the defendant exercised reasonable diligence or waived the

right. I find again that to the extent that he understood the right to counsel, the defendant did as best he knew how and within theparameters of freedom that he had to obtain what assistance he could. He did so promptly at the roadside and in the interview room forthe reasons previously given. He did not waive the right to counsel. The informational component is breached. 5.2. Did Police Fail to Wait a Reasonable Period of Time? [74] The next two complaints advanced by the defence raise a question of whether PC Olson breached duties relating to theimplementation of the right to counsel.

Those duties are the duty to cease questioning or otherwise attempting to elicit evidence until thedetainee has been given that opportunity to wait for counsel to call back – in other words a duty to wait – and duty to provide the detaineewith a reasonable opportunity to exercise the right to speak to a lawyer – in other words a duty to facilitate. I would refer to the decisionof Ellies J. in Vernon at paras. 35-36, referring to R. v.

Manninen, (SCC), [1987] 1 S.C.R. 1233 (S.C.C.) at pp. 1241-1243 and Willier at paras. 29-30 and 35. [75] Turning first to the duty to wait a reasonable period of time, the disagreement between the parties is whether the officer neededto wait longer than the three minutes that elapsed between the voice message he left for Mr. Engel and the telephone call he placed toduty counsel.

The Crown grounds its position that the officer did not need to wait any longer than this in its submission that thedefendant sufficient information to understand the right to counsel and that the defendant had a positive obligation to continue to expressthat right. The Crown contends that instead of doing so, the defendant made the free choice to speak with duty counsel. I note that theposition of the Crown is based on the view that Mr. MacGregor was not exercising reasonable diligence. I understand the submission tobe that Mr.

MacGregor was making an informed decision and in particular that he did not communicate to the officer any confusion thathe may have had about his right to counsel. [76] In considering whether the duty to wait was breached, I observe that a similar submission was advanced by the Crown inVernon. The Crown relied upon Willier in submitting that the trial judge had erred in finding a breach. It was argued that the defendanthad chosen to speak to duty counsel rather than to wait for his lawyer to call back. Ellies J. disagreed and held at para. 44: In

summary, I conclude that there is no positive obligation on a detainee to express dissatisfaction with the advice of duty counsel or tocontinue to request an opportunity to speak with counsel of choice in order to establish a breach of that right under s. 10(b). Indeed, in myview, it would be improper to impose such an obligation where, as here, the validity of any waiver of the right is in issue.

Absent thetype of circumstances that were present in Willier, where it was held that the detainee had simply chosen to speak to another lawyerrather than waive his right to counsel of choice, the onus is on the Crown to establish a valid waiver. To impose the obligation urgedupon the court by the Crown would be to reverse that onus. Instead, evidence that a detainee failed to complain, seemed satisfied or nolonger asked to speak to counsel of choice after speaking with duty counsel is simply evidence to be considered on the issue of waiver,where that issue arises. [77] I would apply Vernon to the facts before me.

I have already found that the informational duty was breached and that a validwaiver has not been established. I find that Mr. MacGregor did not make a free and informed choice in deciding whether to speak withduty counsel or to continue to request an opportunity to speak with counsel of choice. The evidence must be considered in context. Thedefendant was not informed police are obligated to wait a reasonable period of time. The comments and gestures made stronglysuggested that he needed to move on. The options provided to him left him feeling that there was no choice but to move forward.

ThePC Olson, within three minutes of placing the call to Bruce Engel, placed a call to duty counsel. I cannot find in these circumstances thatthere was choice any more than I can find that there was valid waiver. And to place the obligation upon the defendant would be toreverse the onus to establish waiver. [78] In reaching such a conclusion, I have considered decision of several Courts in Ontario where police waited only a brief period oftime before channeling the accused away from counsel of choice. These include the decisions in Duong and Manuel, referred to earlier,as well as the decision in R. v.

Maciel, 2016 ONCJ 563 , [2016] O.J. No. 4789 (C.J.). In my view, these decisions all support theconclusion reached here, and it may be observed that some of those decisions cite Vernon in support. I have also considered whether thepresent case is one in which there was any urgency required in taking the breath sample. I find on the evidence before me that there wasno urgency and I rely in this regard on the discussion in Vernon at para. 46, in Duong at para. 31, and in Maciel at paras. 37-38 and 49. Ifind that the duty to wait was violated. 5.3.

Did Police Fail to Facilitate Contact With Counsel of Choice? [79] I turn next to the duty to facilitate which the Crown argues does not require police to take all reasonable steps. I agree. Theduty is discussed by Ellies J. at paras. 47-48 in Vernon, a decision in which the Crown also argued that facilitation does not require thatall reasonable steps be taken. Ellies J. held at para. 48: It is true that the police do not need to exhaust all reasonable possibilities in fulfilment of the duty to facilitate contact with counsel: seeR. v. Winterfield, 2010 ONSC 1288, 93 M.V.R. (5th) 34, at para. 62.

However, I share the trial judge's view that they must do more thanthey did in this case. The police did nothing apart from leaving a message on the voice mail of the respondent's counsel of choice. Inessence, they "defaulted to duty counsel". That is not enough. [80] In deciding how much needs to be done by police to facilitate contact with counsel of choice, I would follow the decision in R.v. Panigas, 2014 ONCJ 797 , [2014] O.J. 1244 (O.C.J.).

Horkins J. writes at para. 52: When the police, as an institution, decide to take control of the accused's means of accessing counsel of choice, they also assume theobligation to pursue that constitutional right with all the same effort and diligence that the accused himself would apply. That did notoccur in this case. [81] Panigas was followed on precisely this point in Maciel. Stribopoulos J. held at para. 43: If the police did not assume this responsibility, those in detention would be expected to exercise reasonable diligence in contacting theirlawyer of choice.

Where the police take on this function on behalf of the detainee, it seems eminently sensible to subject their efforts to

the same standard. Anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing. In that regard, I completely agree with the comments of Justice Horkins, who noted: When the police, as an institution, decide to take control of the accused's means of accessing counsel of choice, they also assume the obligation to pursue that constitutional right with all the same effort and diligence that the accused himself would apply.

I believe this standard is in keeping with the duty upon the police to facilitate contact with a detainee's counsel of choice. I therefore intend to apply it in assessing the adequacy of the police efforts in this case. [ 82 ] In applying that standard to the immediate case Stribopoulos J. held as follows at paras. 44-45: I turn next to an assessment of the adequacy of police efforts in this case to put Mr. Maciel in touch with counsel of his choosing. It would appear that Constable Darcy used the Internet to look up Mr. Locke's office number on the Law Society of Upper Canada's website.

In addition, he conducted what he described as a "Google search" and managed to locate a second number for Mr. Locke (which turned out to be a home phone number). Messages were left at both of these phone numbers, first at around 3:10 p.m., and then again about twenty minutes later. Unfortunately, Constable Darcy did not actually look at the website maintained by Mr. Locke's law firm. He had no explanation for failing to do so. If he had, he would have noted that like most business websites, it includes a "Contact Us" link. Had he clicked on that link, he would have obtained both Mr.

Locke's e-mail address and his cell phone number. In my view, in an era when practically every lawyer and law firm has a website, that would be the most sensible starting point for anyone trying to get in touch with a particular lawyer. This is where a lawyer is most likely to share information with prospective clients about how to go about contacting them. As is the case with Mr.

Locke, a criminal lawyer's website will often note his or her cell phone number or e-mail address, which are both ideal ways to get a hold of a criminal lawyer, especially outside of ordinary business hours. [ 83 ] Both Panigas and Maciel were followed in R. v. Tyndall , [2017] O.J. No. 6857 (C.J.) .

Monahan J. held at paras. 35 and 48: Where the police take control over the accused's means of accessing counsel of choice, at least two of my colleagues in this Court have stated that when the right to counsel is invoked, the police must implement the right to counsel with the same effort and diligence the accused himself would apply: see Panigas at para 52 and Maciel at para 43 ). I agree with this proposition. …..

As noted above and as stated in Panigas and Maciel where the police take control of how counsel will be contacted, as was the case here, they must exercise the same diligence and effort that the accused person would himself or herself exercise were they to have been provided the resources directly. [ 84 ] I agree with the standard articulated in Panigas and I apply it to this case because, very clearly, police took control over how counsel could be contacted.

PC Olson testified that it is a practice of the Dryden Police Service not to permit detainees to have cellular telephones within the detachment or to dial using their cellular telephones. Nor are detainees given a means to independently dial out using the telephone that is located inside the interview room. Control over the process of dialing any telephone number is assumed by the police.

PC Olson also testified that the Dryden Police Service does not have policies in place to permit access by detainees to the Internet, to enable them directly or indirectly through police assistance to facilitate access to counsel of choice.

Detainees have made available to them a telephone book, and whatever assistance they can obtain through the arresting officer acting as an intermediary. [ 85 ] In assessing the adequacy of police efforts in this case, I fully accept that PC Olson permitted the defendant, with assistance, to retrieve a telephone number for Andrew MacGregor whom PC Olson understood at the time to be counsel of choice. I also accept that when the officer was told by Andrew MacGregor that he was not his brother’s lawyer, PC Olson provided him an opportunity to speak with the defendant.

This resulted in a limited form of a search for the name of a lawyer of choice and the contact information for that person. It was conducted through Andrew MacGregor who had no data service plan and had to find someone he knew upon whom he could rely for assistance because he was out for the evening. Andrew MacGregor located one number by the time that PC Olson knocked and signaled to the defendant that it was time to move along. At 1:39 AM, the number was dialed and a voice message was left on a voice messaging service that did not identify an after-hours number. PC Olson

[…]