R. v. Zornes Date:, 2011 BCPC 83

Citation: R. v. Zornes Date: 20110411 2011 BCPC 0083 File No: 24367 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DARIN ALLEN ZORNES RULING ON VOIR DIRE OF THE HONOURABLE JUDGE R.D. MORGAN Counsel for the Crown: J. Johnston Counsel for the Defendant: D. Espeut-Post Place of Hearing: Quesnel , B.C. Dates of Hearing: October 22, 2010, February 9, 2011 Date of Judgment: April 11, 2011 [ 1 ] Mr. Zornes is charged with operating a motor vehicle while impaired and while having an illegal blood-alcohol level. A voir dire was held to determine whether Mr. Zornes' right to consult counsel pursuant to s. 10(

b) of the Charter was violated on the basis of not being given a reasonable opportunity to consult counsel, and as a result of not having been given privacy during the process of attempting to contact counsel. The Facts: [ 2 ] Const. Vrolyk was driving her marked police cruiser within the city limits of Quesnel, BC, when she noticed the accused's vehicle approach her. She believed that the accused's vehicle may have traveled over the centerline and into her lane. The time was approximately 3:35 AM on November 15, 2009. She did a U-turn and followed the accused's vehicle.

The accused was driving well below the posted speed limit. The Const. also noticed inconsistent positioning within the driving lane. Const. Vrolyk was concerned the accused may be impaired. She turned on her emergency lights and the accused quickly pulled over. [ 3 ] Upon reaching the drivers window, the Const. noted a very strong odour of liquor. After speaking with the accused she noted the odour was emanating from his breath. She also noted he had bloodshot eyes, slurred speech and difficulty finding his drivers license in his open wallet even though it was in plain view.

The officer described the accused's efforts at locating his driver’s license as "very clumsy", and it was her opinion the accused's motor skills were "sloppy". When she asked for his insurance and registration he produced an expired copy. She decided to not make him search for the current copy. [ 4 ] At 3:40 AM she formed her opinion the accused's ability to drive was impaired by alcohol. She asked the accused to get out of his car. When he did she noticed he was unsteady, staggering and having difficulty with his balance when he walked to the back of his vehicle. Mr.

Zornes was placed in the back of the police cruiser and was read the breath demand. The Const. also read to the accused his s.10 (

a) and (

b) rights from a prepared card that included the required information regarding his right to choice of counsel and the availability of a legal aid lawyer at no charge. The accused indicated he understood and said he wanted to call a lawyer. The time was 3:44 AM.

[ 5 ] They arrived at the police detachment at 3:53 AM. He was taken to an open counter and asked whether he had a particular lawyer he wanted to talk to. He said no. Const. Vrolyk provided the accused with a copy of the Quesnel phonebook and opened it to the lawyer section. She told him he could call or she could call on his behalf. After looking at the phonebook, Mr. Zornes said he wanted to call the firm of Chudiak Schmit & Co. The Const. called the number and left a message on the answering machine indicating who she had in custody, what the charge was, the time of the call, and the call-back number. Mr.

Zornes was close enough to hear her do this. Nevertheless the officer advised him that she had left a message and said they could wait for a call back or, if he wanted to call another lawyer she could assist him with that. [ 6 ] Mr. Zornes nodded indicating he understood and began looking again at the phonebook, choosing the firm of Coffey & Bernath. The officer called that number and it is her recollection she left a message on that answering machine also.

She also called, at the request of the accused, the firms of Dick Byl Law, Hope Heinrich, Gary Lilienweiss, Tony Zipp, Edward Bowles and Heather Sadler Jenkins. She also called David Morrison, discovering that the number was the same number as for Chudiak Schmit. The Const. left messages on any of the numbers that had an answering machine. [ 7 ] Const. Vrolyk advised the accused that he had the right of counsel of choice, but also that he had the option of contacting legal aid at no charge. She also provided him with a 2008 Lawyers Legal Directory, so he could search for other lawyers.

The accused spent 10 min. flipping through the directory without making a single call. The officer told him that just looking at the directory was not getting him any closer to contacting counsel. Mr. Zornes said he could not find a Quesnel lawyer in the directory. The Const. told him the directory listed BC lawyers alphabetically. She also advised that he will have to make some attempt to contact counsel because the officer would have to proceed with the investigation. [ 8 ] At one point the Const. told the accused that the "clock is ticking" and that he could not take all night to contact counsel.

The accused said he would take the maximum amount of time allowed. The Const. told the accused that attempts to contact counsel could not be used as a stall tactic in the investigation. She also reminded him again of the availability of legal aid. [ 9 ] The Const. decided to turn her audio recorder on. The accused continued to look at the directory. Const. Vrolyk told him he had spent a lot of time and was not making a single phone call. She discussed with her supervisor how long she should allow the accused to continue searching for a lawyer.

It was decided that they would allow the accused one hour from the time of the first attempt. The Const. continued to watch the accused, noting he had not made a single phone call, nor did he request that she make any further phone calls on his behalf. He was advised that at the one hour mark the police would be proceeding with taking breath samples. The accused was again reminded of the availability of legal aid.

The breath technician also engaged him in this discussion. [ 10 ] The accused was given a supplemental Charter warning and was told that he had been flipping through the Lawyers Directory for more than a half-hour and had not made a single call. He was asked again whether he wanted to contact a lawyer and said yes. He was asked if he had the name of a lawyer and said he did not. He was asked if he wanted to contact legal aid. He said no. [ 11 ] Mr.

Zorn testified that his reluctance to call the 24-hour legal aid number was because he saw a poster on the wall at the police detachment that left him with the impression that it was not a sure thing that a lawyer would return his call. In his direct testimony he said his concern from the wording of the poster was that he may or may not be talking to a lawyer if he called the 24-hour legal aid number.

However, on cross examination, and after refreshing his memory by being referred to a copy of the poster, he said his concern was not that he may receive a return call from someone who was not a lawyer, but his concern was that he may not receive a return call at all. [ 12 ] The poster includes the following information: You have the right to talk to a lawyer before you talk to the police..... Free service... 24 hours a day.... Interpreters available. You can call your own lawyer - or call one of the numbers above to speak to a lawyer. If you cannot speak English well, you can ask for an interpreter.

You may hear a recording instead of a person when you call. If so, leave a message with this information: your name, where you are, the phone number where you are now, the time of your call, the name of your language if you need an interpreter. A lawyer should call back within half an hour. [ 13 ] On cross-examination Mr. Zornes agreed that there was nothing on the poster that suggested that any person other than a lawyer would be calling back. He also agreed that the worst-case scenario based on the wording of the poster is that a lawyer would not initially answer the call.

He also stated he had no concerns about the quality of legal advice he could expect to receive. He also confirmed that he understood it was a free service and was available 24 hours a day. [ 14 ] He confirmed his sole concern was that the wording on the poster indicating that a lawyer "should" call back within ½ hour. This he says was not very reassuring to him that a lawyer would in fact call back at all. [ 15 ] At 5:04 AM the first observation period began. The investigation continued in the usual fashion resulting in two valid samples being recorded on the Certificate.

Argument: [ 16 ] The accused says his rights under

section 10(

b) of the Charter were breached in two ways. The first was that he was not afforded any privacy during his attempts to contact counsel. The second breach is alleged to have occurred when the police failed to hold off on their investigation to allow him a reasonable opportunity to contact counsel. Privacy Issue:

[17] The accused argues that the accused was afforded no privacy during his attempts to contact counsel. All of the attempts tocontact counsel, and his efforts at locating the names of counsel to call, occurred at an open counter. The accused says this lack ofprivacy made him nervous and affected his ability to locate the names and numbers of additional private bar counsel to call. The accusedargues that it is irrelevant that he did not request privacy or that he was only in the process of trying to seek counsel. [18] Counsel for Mr. Zornes refers me to the well known Supreme Court of Canada decision of Bartle v.

The Queen (1994) (SCC), 92 C.C.C. (3d) 289, where at pages 7 and 8, Lamer C.J.C. sets out the purpose of s.10(

b) and a police officer's dutiesunder that section. Those duties include the duty to provide a detainee with a reasonable opportunity to exercise the right to retain andinstruct counsel and also to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity. It isalso noted the right to counsel under

section 10(

b) is not absolute and that unless a detainee is reasonably diligent in exercising the rightthe correlative duty on the police to refrain from eliciting evidence will be suspended. [19] Mr. Zornes argues he was diligent in exercising that right, and was trying to find a local private bar lawyer in the directory butwas unable to, partly because of the lack of privacy during his search. [20] Mr. Zornes relies on the Ontario Court of Appeal decision in R. v. Playford (ON CA), [1987] O.J. No. 1107.

In that case, the accused was taken to the police detachment and after indicating he wanted to make a telephone call was given atelephone in the general office. The accused was told there was not a proper private office for him to use to make the call. The accusedtelephoned a friend, testifying he did so because it was Sunday night and he did not know his lawyer's residence telephone number. Apolice officer overheard the conversation and made notes of it. The following morning he was provided with the use of a telephone forthe express purpose of calling his lawyer.

That call was made from the breathalyser office with the door left open. The police officeroverheard the conversation and made notes of it. The accused in that case did not make a specific request for privacy and acknowledgedif he wanted more privacy he could have turned from the doorway and spoken in a lower voice. The Court of Appeal found the lack ofprivacy for both phone calls violated the accused's s. 10(

b) rights. Regarding the importance of privacy in exercising the right to retainand instruct counsel, Goodman J.A. for the Court said, at paragraph 38: It seems clear that, so far as circumstances permit, and accused should not be questioned by police until he has had the right to retain andinstruct counsel and that right is one that is to be afforded to him without delay in so far as circumstances permit. Privacy is a matterwhich is inherent in that right.

In my opinion, proof that an accused could instruct and consult counsel in private only by whispering orby some other unusual device does not meet the test of privacy. An accused who believes that his conversation will be overheard by thepolice will of course be substantially prejudiced in making use of his right to retain and instruct counsel.... [21] Regarding the first phone call made by Mr. Playford, the Ontario Court of Appeal determined that, in the circumstances of thatcase, it did not matter that the first phone call did not involve retaining and instructing counsel.

At paragraph 39 Goodman J.A. held asfollows: It is my view the learned trial judge, in considering the matter of privacy erred when he in fact disregarded the facts surrounding theappellant's first telephone call. He said: "No Charter complaint, in any event, is justified with respect to the first call, because it hadnothing to do with retaining and instructing counsel." That statement is not accurate. The first telephone call was made as a result of apolice officer asking the appellant whether he wished to make a telephone call.

This occurred a short time after his arrest and almostimmediately after his arrival at the O.P.P. Wiarton detachment office. The availability and the use of the telephone in private by theappellant at this time would comply with the requirements of s.10 (b), that he have the right to retain and instruct counsel without delay.The police did not know that the accused felt that he would be unable to locate his counsel on that night and it was their duty to enablehim to retain and instruct without delay in so far as circumstances permitted. [22] Mr.

Zorn argues that this finding in Playford supports his position that it is irrelevant that the lack of privacy occurred when hewas only in the process of contacting counsel. [23] Crown counsel submits that the British Columbia Court of Appeal decision in R. v. Standish [1988] B.C.J. No. 381 is directly onpoint and makes clear that the right to privacy does not arise with the attempt to contact a lawyer. In that case the accused was allowed touse a telephone to contact a lawyer. The police officer remained in the room while he did so. The accused was only able to leave amessage on an answering machine.

Nemetz C.J.B.C. for the court, in allowing Crowns appeal of the accused's acquittal, considered andreferred to the Playford decision, before holding, at the last full paragraph of page 3, as follows: ... The right to privacy established under the Charter does not necessarily start by the attempt to reach a lawyer. It starts after the accusedreaches his lawyer to seek his advice. The right an accused has was as Laskin CJC put it: "a right to have the consultation in private, sofar as circumstances permit". Decision on the Privacy Issue: [24] I find the Standish decision is directly on point with Mr.

Zornes' privacy argument. At no point did Mr. Zornes ever actuallyconsult counsel. Constable Vrolyk was assisting him in attempting to exercise his right to consult counsel. Unfortunately, he wasunsuccessful in contacting a private bar lawyer, and had elected not to call the 24 hour Brydges Line to contact a legal aid lawyer. Thefact that Mr. Zornes' unsuccessful attempts to reach a lawyer were not made in a private setting does not constitute a breach of his rightpursuant to s.10(

b) to consult a lawyer in private. [25] In the decision of R. v. Bohn 2000 Carswell BC 910, although a factually unrelated case, the BC Court of Appeal - at page 12 infootnote number 3 - references both the Playford and Standish decisions in regards to the principle that privacy – even if not requested -is inherent in the right to consult counsel. This shows two things: firstly, that the Standish decision is still the law in BC, and secondly,that the BC Court of Appeal does not see the Playford decision as being at odds with it. This is consistent with C.J.B.C Nemetz's

reference to Playford in the Standish decision itself. [26] Notwithstanding any speculative concerns I have as to whether or not Mr. Zornes would have been immediately placed in aprivate room had he in fact contacted counsel while sitting at the open counter, the fact is he never got past only being in the process ofattempting to contact a lawyer. Consequently, I am bound by the reasoning in the Standish decision, and find there was no breach ofMr. Zornes’ rights under s. 10(

b) on the privacy ground. Reasonable Opportunity Issue: [27] The accused argues he was not provided a reasonable opportunity to consult counsel. The first telephone message left on behalfof the accused was at 3:57 AM. Const. Vrolyk continued to leave messages for the other lawyers chosen by the accused until 4:18 AM. After this she gave the Lawyers Directory to the accused so he could find a lawyer. The accused says that when Const.

Vrolyk took thedirectory away from him at 5 AM and resumed the impaired driving investigation, she had not yet afforded him with what could beconsidered a reasonable opportunity to retain and instruct counsel. Counsel for the accused submits that the Const. could have waitedlonger for possible return calls, and she could have provided Mr. Zornes with the telephone white pages to assist in his search. [28] She also argues it cannot be said Mr.

Zornes was not acting with due diligence given he had chosen several names from thephone book and had also chosen two names from the directory, notwithstanding those chosen from the directory were names of lawyerswho had already been called. [29] Mr. Zornes relies on the well-known Supreme Court of Canada decision in R. v. Prosper (SCC), [1994] S.C.J.No. 72. In that case, Lamer C.J. for the majority, discusses the obligation of the police to hold off on the investigation to provide theaccused with a reasonable opportunity to exercise his right to counsel. He states at par. 34: 34.

As this court has stated on a number of occasions, s.10 (

b) imposes both informational and implementational duties on stateauthorities who arrest or detain a person...[cases and citations omitted]. Once a detainee has indicated a desire to exercise his or her rightto counsel, the state is required to provide him or her with a reasonable opportunity in which to do so. In addition, state agents mustrefrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel. As themajority indicated in R. v.

Ross, (SCC), [1989] 1 S.C.R. 3 at p.12, once a detainee asserts his or her right to counsel,the police cannot in any way compel him or her to make a decision or participate in a process which would ultimately have an adverseaffect in the conduct of an eventual trial until that person has had a reasonable opportunity to exercise that right.

In other words, thepolice are obliged to "hold off" from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonableopportunity to reach counsel. [30] The court in Prosper determined that there may be urgent circumstances justifying the police to continue with their investigationnot withstanding the detainee has been unable to contact counsel.

However the court went on to say that the existence of the two-hourevidentiary presumption available to crown in impaired driving cases does not constitute such a compelling urgent circumstance. (Seeparagraph 45) [31] Crown submits that given the number of calls made to lawyers offices on the accused's behalf and at his request, and the amountof time he was given to find other lawyers to call, and especially given the accused's unexplained and unreasonable refusal to availhimself of the legal aid duty counsel system, it can not be said the accused has satisfied the onus of proving he was not afforded areasonable opportunity to consult counsel. [32] Crown counsel also submits that the accused's concern about possibly not receiving a call back from legal aid not only was anunreasonable concern given the wording of the poster and the other information he had received when read his s.10(

b) rights, but was amisapprehension that was not communicated to the police officer. Decision on the Reasonable Opportunity Issue: [33] In Prosper (above) Lamer C.J. considered the impact the existence of a 24 hour legal aid duty counsel system may have on thedetermination of what constitutes a “reasonable opportunity” to consult counsel. He stated at par. 35: 35. In my view, what constitutes a "reasonable opportunity" will depend on all the surrounding circumstances. The circumstances willinclude the availability of duty counsel services in the jurisdiction where the detention takes place.

As the majority in Brydges suggested(at p.216), the existence of duty counsel services may affect what constitutes "reasonable diligence" of a detainee in pursuing the right tocounsel, which will in turn affect the length the period during which the state authorities' s.10(

b) implementational duties will requirethem to "hold off" from trying to elicit incriminatory evidence from the detainee. The nonexistence of such services will also affect thedetermination of what, under the circumstances, is a "reasonable opportunity" to consult counsel. The absence of duty counsel in ajurisdiction does not give persons detained there more rights under s. 10(

b) than those who are detained in jurisdictions which have dutycounsel. It does, however, serve to extend the period in which a detainee will have been found to have been duly diligent in exercising hisor her right to counsel.

Similarly, if duty counsel exists but is simply unavailable at the time of detention, the "reasonable opportunity"given to detainees to contact counsel will have to reflect this fact. [34] I am cognizant of the Supreme Court of Canada's comments in Prosper (above) regarding the determination that the two-hourtime limit for the presumption to apply in impaired driving investigations does not amount to urgent circumstances justifying thetruncating of a detainee's reasonable opportunity to consult counsel.

However, I also note that the Court's comments in Prosper weremade in the context of the absence of a duty counsel system. At the approximate midpoint of paragraph 45 in Prosper Lamer C.J.states:

45. ...

A detainee's Charter-guaranteed right to counsel must take precedence over the statutory right afforded to the Crown which allowsit to rely on an evidentiary presumption about what a breathalyser reading would have been at the time of care and control of the vehicle.Loss of the benefit of this presumption is simply one of the prices which has to be paid by governments which refuse to ensure that asystem of "Brydges duty counsel" is available to give detainees free, preliminary legal advice on an on-call, 24-hour basis. [35] In my view, the corollary is that if a 24 hour duty counsel system is in place, there would, in most circumstances, not be the lossof the presumption, given that one would expect an accused would have had – in the usual case - the opportunity to consult counselwithin 2 hours. [36] The Ontario Court of Appeal in the case of R. v.

Richfield (2003) (ON CA), 178 C.C.C. (3d) 23 dealt withfacts similar to those of Mr. Zornes’ case. Richfield was an impaired driving case where there was a 24-hour duty counsel system inplace. In that case the accused indicated he understood his

section 10(

b) rights and requested a particular lawyer. At 1:42 AM a call wasplaced to that lawyer and a message was left with the person acting as the answering service. At 2:44 AM there still had not been areturn call from the lawyer. The investigating officer asked the accused if he would like to speak to duty counsel. The accused declinedspeaking with duty counsel saying he only wanted to speak with his lawyer of choice. The accused was warned that the investigation wasgoing to continue shortly and that if he was going to get advice from legal counsel he should do so right away.

He was again advised ofthe availability of free 24-hour legal advice, however the accused again declined to access duty counsel. The investigating officer wasconscious of the two-hour time limit relating to the evidentiary presumption under

section 258, and proceeded with the investigation. [37] Weiler, J.A. for the court, held at paragraph 10: 10. The trial judge in this case failed to appreciate the significance of the availability of duty counsel as a factor in determining whetherthe appellant exercised his right to counsel with reasonable diligence in making his ruling that there was a breach of the appellant's s.10(

b) Charter rights. In so doing, the trial judge committed a palpable and overriding error and the

summary conviction appeal judgeerred in upholding his decision. [38] Earlier in the decision, at paragraph 8, the court commented on the concept of 'reasonable opportunity to consult counsel' giventhe existence of a 24-hour duty counsel system, as follows: 8. In considering whether the appellant has been given a reasonable opportunity to exercise the right to counsel and has exercised thisright with reasonable diligence, the existence of 24-hour duty counsel services is a crucial factor that must be considered.

In R. v.Brydges, supra, at 350-351, the Supreme Court of Canada recognized that the existence of a duty counsel system may affect whatconstitutes "reasonable diligence": Indeed, if the purpose of s. 10(

b) is to assist initially persons upon their being detained as regards their rights and as regards their exercisethereof, we might well have to put time-limits, not on access to counsel, but on access to counsel of one's choice. It may be that it isunreasonable not to seek the advice of available counsel when the only one available is either duty counsel or a Legal Aid Lawyer.

Wemust not, as a court, lose sight of the realities of crime investigation and the functioning of modern police forces of varying sizes, withshifts, labour agreements and limitations put on overtime for financial considerations of course, but also, if not more important becausepolice officers have a right to a personal and family life.

Waiting for 8 to 10 hours for counsel of the detainee's choice to becomeavailable may not be justified in our purposive approach when duty counsel has been available all along... [A]s a corollary to theobligation imposed on the police to inform detainees of the existence and availability of duty counsel services and Legal Aid plans, theremay have to be an adjustment to the meaning of "reasonable diligence". 9. Similarly in R. v.

Prosper (1994), (SCC), 92 C.C.C. (3d) 353 (S.C.C.) at 369 and 375, Chief Justice Lamer, for themajority, held: .....In addition, provision of duty counsel would seem to offer concrete benefits to law enforcement authorities and to the courts. That is,not only does ensuring that legal advice is available at the outset save time and allow police to proceed more quickly with theinvestigatory work and with laying charges, but also it is likely to facilitate the admission into evidence of various statements made topolice by detained persons.

"Brydges duty counsel" is also likely, at least in the long run, to be cost-efficient. It would decrease theovertime costs associated with having police "hold off" to provide the necessary "reasonable opportunity" to contact counsel and, byreducing the number of motions which center around ss 10(

b) and 24(2) of the Charter, would help to save on court resources .... In myview, what constitutes a "reasonable opportunity" will depend on all the surrounding circumstances. The circumstances will include theavailability of duty counsel services in the jurisdiction where the detention takes place. As the majority in Brydges suggested (at p. 350),the existence of duty counsel services may affect what constitutes "reasonable diligence" of a detainee in pursuing the right to counsel,which will in turn affect the length of the period during which the state authorities' s. 10(

b) implementational duties will require them to"hold off" from trying to elicit incriminatory evidence from the detainee. [39] Mr. Zornes was assisted by Const. Vrolyk in making calls to nine different lawyers or law firms. Approximately 21 min. wasspent making these calls. Mr. Zornes was provided with another approximately 42 min. to find another private bar lawyer he would liketo talk to. He was provided with the 2008 British Columbia Lawyers Directory that lists at least a great many of the lawyers practicing inBritish Columbia.

In his search he came up with only two names, both of which he had already chosen and had been called. [40] Mr. Zorn's was repeatedly reminded of the availability of the free legal aid duty counsel system. He expressly declined to use thissystem without explaining why or what concerns he may have had. [41] Given the time of night, it is not surprising that none of the lawyers called returned those calls.

This is the precise problem thestate addressed through the implementation of a 24 hour free duty lawyer system. [42] The investigating officer may well have been cognizant of the 2 hour time limit for the evidentiary presumption. In thecircumstances of this case, that was not an unreasonable factor for her to have considered in determining whether Mr. Zornes had beenprovided with a reasonable opportunity to consult counsel.

[ 43 ] I find he was provided a reasonable opportunity to consult counsel. His decision not to avail himself of the 24 hour duty counsel system after many unsuccessful attempts and spending approximately an hour attempting to contact private bar lawyers, amounts to a lack of due diligence. [ 44 ] Mr. Zornes has not established that his s.10 (

b) right to consult counsel was breached by a failure on the officer’s part to provide him with a reasonable opportunity to do so. [ 45 ] The Crown evidence, including the Certificate, will become evidence on the trial proper. ________________________________ R.D. Morgan, Provincial Court Judge