HER MAJESTY THE QUEEN — v. —, 2019 ONCJ 437

ONTARIO COURT OF JUSTICE CITATION : R. v. Henry , 2019 ONCJ 437 DATE : June 19, 2019 Scarborough - Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — CHARLES HENRY ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) For the Crown J. Smith For the Defendant D. Butt Heard: April 25 - 26, 2019 REASONS for JUDGMENT RUSSELL SILVERSTEIN, J.: A. INTRODUCTION [ 1 ] Charles Henry is charged with impaired driving and operation of a motor vehicle with a blood alcohol concentration over 80 milligrams in 100 milliliters of his blood. [ 2 ] At approximately 2:11 am on May 17, 2018 police observed Mr. Henry driving his car in an erratic manner.

When they pulled him over he exhibited what they believed were further signs of impairment. They arrested him for impaired driving and made a breath demand pursuant to s. 254 (3) of the Criminal Code . [ 3 ] Two samples of Mr. Henry’s breath were taken at 3:22 am and 3:43 am, well within two hours of Mr. Henry’s driving. His readings were 140 mg/100 ml of blood and 130 mg/100 ml of blood. [ 4 ] Mr. Butt, counsel for Mr. Henry, brought several Charter applications and the trial and Charter voir dires proceeded in a blended fashion. [ 5 ] The Crown called two witnesses: P.C. Greto and P.C.

Armstrong, both of whom were involved in the arrest, transport and

parading of the accused at the police station. The documents generated by the breath technician were filed with the consent of the defense, with an agreement that I can treat them as admissible for the truth of the statements made by the breath technician set out in those documents. Video and audio of the encounter between the police and the accused at the roadside as well as audio of the accused in the back of the police car on way to the station was filed.

Video and audio recordings of the accused’s dealings with the breath tech officer were also filed on consent. [ 6 ] The issues to be decided are: (1) has the Crown proven beyond a reasonable doubt that Mr. Henry’s ability to operate his motor vehicle was impaired by alcohol at the time of his driving, and (2) did the police breach Mr. Henry’s s. 10(

a) and 10(

b) Charter rights, and if so, are the results of the breath tests inadmissible pursuant to s. 24(2) of the Charter . B. THE EVIDENCE (

a) The circumstances of Mr. Henry’s driving [ 7 ] On March 17, 2018 officers Greto and Armstrong were patrolling in a marked police car when they received a “hot shot” call on their radio. Someone had reported to 911 that they had seen a grey Toyota Corolla being driven erratically with three occupants. The licence plate number was also broadcast, as was the name of the registered owner. [ 8 ] The officers decided to look for the Toyota and succeeded in finding it at 2:11 am. It was heading east on Eglinton Avenue coming towards them at approximately 100 km/hour.

The officers executed a U-turn and followed the car. They caught up to it as it was stopped at a red light at the intersection of Eglinton and Birchmount. The driver of the Toyota initiated a conversation with a pedestrian who was crossing the street in front of the car. [ 9 ] The driver of the Toyota quickly sped away when the light turned green. His tires squealed and he swerved somewhat such that both officers feared he would hit the median. He reached a speed of approximately 110 km/hour as he approached the intersection of Ionview and Eglinton.

At that intersection the driver abruptly turned left onto Ionview from the centre lane at high speed. [ 10 ] The officers activated their emergency lights and siren and signalled to the driver of the Toyota to pull over, which he promptly did. [ 11 ] When officer Greto approached the driver’s window he saw the accused in the driver’s seat with the window down. He asked the accused why he was driving “like that”. The accused had his wallet on his lap.

There were two other occupants in the car. [ 12 ] Officer Greto immediately detected a strong odour of alcohol emanating from the accused and he noticed that the accused had glassy and bloodshot eyes. Officer Greto asked the accused if he’d been drinking. At first the accused said that the other occupants of the car had been drinking and then admitted to having “had a couple”. [ 13 ] When asked for his driving documents the accused reached for them in the glove compartment.

According to officer Greto the accused’s movements were jerky and he fumbled with the documents before succeeding in presenting them. [ 14 ] Officer Greto formed the opinion that the accused’s ability to operate a motor vehicle was impaired by the consumption of alcohol.

He told the accused to exit his vehicle and immediately arrested him accordingly. [ 15 ] Once the accused was out of the car officer Greto told the accused he was arresting him for impaired driving and told him that he had the right to speak to a lawyer, and that if he didn’t have one the police would put him in touch with a free legal aid lawyer. [ 16 ] The accused responded to this by telling officer Greto that his wife was on duty and that he would call her and “let her know”.

Officer Greto then asked the accused if he wanted to use his wife as a lawyer, to which the accused responded to the effect that she was a police officer currently on duty at 33 Division. Officer Greto asked the accused again if he understood his rights to counsel and the accused said he did. The officer asked the accused if he had a lawyer he would like to talk to and the accused replied “no”. [ 17 ] The accused was then placed in the back of the police car. Officer Greto reminded the accused that he had the right to speak to a lawyer and the accused repeated that he wanted to speak to his wife.

The officer assured the accused that once back at the station he could speak to whomever he wished. A breath demand was made shortly thereafter. [ 18 ] Throughout all that I have just described, the accused was extremely cooperative and polite. (

b) The evidence of what occurred between the arrest of the accused and his arrival at the police station [ 19 ] The accused was left in the back of the car alone while officers Greto and Armstrong made arrangements for the disposition of Mr. Henry’s car. [ 20 ] After telling officer Greto that it was okay for his friends to go to Mr. Henry’s house Mr. Henry began to mutter and sing to himself. [ 21 ] Approximately three minutes later the accused became irritated at the handcuffs and his irritation soon evolved into the use of hostile and vulgar language directed at the police.

He shouted the name “Derrick” and continued to swear intermittently. He soon calmed down and was then transported to the station.

[22] The accused remained quiet and calm during the brief trip to the police station and while waiting to enter the booking hall,which was somewhat delayed. He can be heard on the in-car audio praising the police. [23] Just before being escorted into the booking hall the accused was asked for a phone number and provided one, but it is unclearwhose number he provided. (

c) The evidence of what occurred at the police station [24] Once before the booking sergeant the accused was told he will be given reasonable access to the phone. The booking sergeantthen told the accused that he had a right to speak to a lawyer of his choice, or free duty counsel if he doesn’t have one. When asked if heunderstood the accused said “yeah, I’ll wait”. After some further routine questioning he was subjected to a level 2 search. [25] Before being taken to the breath room Mr. Henry asked to speak to his wife “Leslie” and supplied P.C. Greto with a phonenumber.

The officer got her on the line and allowed them to converse. After the conversation the accused made no mention of a lawyerand spoke to duty counsel. The evidence is not clear as to how the subject of duty counsel came up at this juncture. After Mr. Henry'sconversation with duty counsel he made no complaints about the advice he’d received and he did not ask to speak to any other lawyers. [26] In the breath room the accused continued to be polite and cooperative. P.C. Clifford, the breath technician, smelled alcohol onhis breath and noted that his eyes were slightly bloodshot and watery. Mr.

Henry’s speech was normal. P.C. Clifford, given the choice ofnoting the accused to be (a) “has been drinking”, (b) “ability impaired” or (c) “intoxicated” ticked the box beside “has been drinking”. Areview of the breath room video shows that the accused was well-coordinated. C. THE IMPAIRED DRIVING CHARGE (

a) The alleged 10(

a) violation [27] Mr. Butt began his argument with a submission that P.C. Greto failed to inform the accused in a timely manner of the reasonfor his detention. The remedy he sought was a ruling against the admissibility of Mr. Henry’s admission to P.C. Greto at the roadsidethat he had been drinking. When it became apparent that Mr. Smith was only relying on this admission as it may inform the officer’sreasonable and probable grounds for the arrest and demand, Mr. Butt abandoned the 10(

a) ground, since he does not contest the officer’sgrounds for the arrest and the breath demand. (

b) Analysis of the evidence relevant to impairment [28] It is incumbent on the Crown to prove beyond a reasonable doubt that the accused’s ability to operate a motor vehicle wasimpaired, even if only slightly, by the consumption of alcohol. R. v. Stellato (1993), (ON CA), 12 O.R. (3d) 90(C.A.), aff'd (SCC), [1994] 2 S.C.R. 478. [29] As Durno J, sitting ad hoc in the Court of Appeal, put it in R. v.

Bush, 2010 ONCA 554 at para. 47: “slight impairment to driverelates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision,reaction or response time, judgment, and regard for the rules of the road”. [30] Before turning to the observations of Mr. Henry’s driving I note that the Crown called no evidence seeking to correlate thebreath test results with levels of consumption or impairment.

The breath test results, while powerful evidence on the “over 80”, shouldthey be admitted (see below), do not assist the Crown in proof of impairment, apart from that they do prove that the accused hadconsumed alcohol, a fact that is amply borne out by other evidence in the case, that being the strong odour of alcohol emanating from hisbreath along with his bloodshot and glassy eyes, as observed by the police at the roadside. [31] Mr. Henry’s driving, as witnessed by the police and recorded on their dashboard camera, was high-speed, careless andsomewhat uncontrolled. Mr.

Henry couldn’t keep his car moving in a straight line when he accelerated away at a green light. It must besaid, however, that this swerving might simply have been as a result of the accused choosing to accelerate quickly. Be that as it may, hischoice to drive recklessly at high speed is itself a possible indication of impaired judgment. [32] The accused demonstrated some difficulty with his fine motor skills as observed by P.C. Greto after he asked the accused toproduce his driving documents. On the other hand there was no evidence of slurred speech or lack of balance. [33] Mr.

Smith argues that the intemperate and “odd” behaviour of the accused in the back of the police car supports a conclusionthat he was intoxicated. While intoxication is one possible explanation for this behaviour I find that it is also quite possibly attributable toMr. Henry’s personality and the anger that he likely felt at being arrested and handcuffed in the back of the car for what must haveappeared as an inordinately long time. [34] Mr. Butt argues that the evidence of the behaviour and appearance of Mr. Henry at the station, both in the booking hall and inthe breath room, undermines the case for impairment.

Mr. Smith reminds me that these observations are well after the critical time ofMr. Henry’s driving. [35] This is a circumstantial case, and I must consider all of the observations and the testimony I heard and determine whether thetotality of the evidence “is rationally inconsistent with any other conclusion than guilt” (at least slight impairment). Put another way Imust ask myself if there is a reasonable, innocent (i.e. not impaired) explanation for it all. If so I must acquit. R. v.

Villaroman, 2016SCC 33 at para. 13 [36] After considering all the evidence relevant to the issue of impairment, I conclude that while Mr. Henry’s ability to operate amotor vehicle was probably impaired by alcohol consumption that night, it is nonetheless reasonably possible that while he had indeed

consumed some alcohol, his driving and his behaviour are explained by the fact that he is a speeding, reckless driver with a bit of atemper, who became somewhat flustered when initially confronted by the police. [37] The impaired driving charge is dismissed. D. THE “OVER 80” CHARGE (

a) Introduction [38] Mr. Butt concedes that if the breath results are admitted the Crown’s case on the “over 80” is made out. He argues that theyshould be excluded as a result of a breach of Mr. Henry’s 10(

b) rights under the Charter. (

b) The alleged 10(

b) violation [39] Mr. Butt’s argument distills down to the following proposition:

section 10(

b) requires the police to immediately inform everyarrestee that he can contact any lawyer he wishes, and that if he doesn’t have a lawyer in mind he can either consult a directory, orconduct a Google search to find one, or speak to duty counsel. Should the arrestee ask to resort to Google, the police must provide himwith access to a computer to do so. [40] Mr. Butt’s proposition has recently found favour with several of my fellow Ontario Court judges, e.g. Parry J. in R. v.Sakharevych, 2017 ONCJ 669 and R. v. Middleton, 2018 ONCJ 387; Boivin J. in R. v. Della-Vedova [2018] O.J. No. 1596; Burstein J. inR. v.

Ali, 2018 ONCJ 203; Konyer J. in R. v. Ferose, 2018 ONCJ 305; Band J. in R. v. McFadden, 2016 ONCJ 777; Colvin J. in R. vVlasic, [2016] O.J. No.6892. [41] In Alberta, Lamoureux J. in R. v. McKay, [2013] A.J. No. 61, found a breach of 10(

b) where police did not offer the accusedaccess to the Internet. It is also noteworthy that in Alberta the standard police incantation of 10(

b) rights includes an offer of access to atelephone book. See R. v. Ali, supra at para. 49. [42] Effectively, in Ontario, police routinely inform an arrestee that he may either contact a lawyer he can identify, or speak to dutycounsel. Unless the arrestee names a lawyer, or asks to phone someone for the express purpose of helping him find a lawyer, he must useduty counsel if he wants legal advice.

In Middleton, supra, Parry J. expressed his concerns with the prevailing approach as follows atparas. 63-64: In addition to the initial denial of the right to counsel of choice, I am concerned about the approach taken by Maclean and his colleaguesat the police station. I am concerned for two reasons: first, collectively, the officers appear to have presented an incomplete set ofchoices to Mr. Middleton [a false dichotomy]; second, they ignored repeated statements that Mr. Middleton did not understand his legaladvice. As Mr. Middleton bounced from officer to officer, they collectively presented Mr.

Middleton with a false dichotomy of choices: (1) ifyou have a lawyer, you can call that one; and (2) if you do not have a lawyer, you can call duty counsel. This approach is evident in theevidence of Sgt. Karavelus, Constable Maclean, and Constable Oliver. Sgt. Karavelus told Mr. Middleton that if he did not have alawyer, the police would call duty counsel. Similarly, Constable Maclean indicated that if an arrestee tells him that he does not have alawyer, he puts the arrestee in touch with duty counsel. Constable Oliver told Mr.

Middleton: "your option is that we have to offer you alawyer and if you want to speak to one that's your choice..." At the time of his arrest, Mr. Middleton did not have a lawyer. He had neverbeen in trouble with the law before. He had no reason to "have" a criminal lawyer. This did not mean, however, that he was requiredautomatically to resort to duty counsel. Mr. Middleton, had the right to the opportunity to search for and choose a lawyer. SergeantKaravelus recognized this principle, but he did not communicate it to Mr. Middleton. The police in this case controlled completely themeans by which Mr.

Middleton exercised his right to counsel. They separated the accused from his phone. They did not present him witha lawyers list, a phone book, access to the internet, or any means by which to search for and find a lawyer of his choosing. They also didnot advise him of his right use any of these resources to choose a lawyer. In addition, they did not allow him to place the call himself.They simply allowed him to receive a call from someone they had called on his behalf. They acted as the exclusive conduit to legaladvice, without providing the necessary information and tools to Mr.

Middleton to empower him to assert his rights. Consequently, Mr.Middleton was inexorably steered toward duty counsel. This practice is constitutionally suspect. Unfortunately, a growing body of caselaw suggests, it is not a practice unique to the Guelph Police Service. [see for example, R. v. Ali, 2018 ONCJ 203 , [2018] O.J.No. 1662; R. v. McFadden, [2016] O.J. No. 6932 (C.J.); R. v. Vlasic, [2016] O.J. No. 6892 (C.J.); R. v. Ricardo Morales [unreported](December 5, 2016); R. v. Maciel, 2016 ONCJ 563 (C.J.); R. v. Panigas, [2014] O.J. No. 2058 (C.J.); R. v. Pita, [2013] O.J.

No. 5974] [43] Parry J. had earlier expressed his concerns in Sakharevych at paras 69-71: In Mr. Sakharevych's case, Cst. Schnarr was dealing with a 19 year old first offender. This first offender asserted a desire to speak tocounsel. In doing so, he plainly communicated that he did not know of any lawyers. In those circumstances, a reasonable person wouldconclude that this young person lacks the information necessary to choose a lawyer. In short, in asserting his right Mr. Sakharevych alsoasserted an informational deficit.

Any reasonable member of the public and the legal community would consider it entirely inappropriate for a police officer to steer eacharrestee to a particular member of the defence bar. A police officer who carried a stack of cards from a single lawyer's office and handedthem out at each arrest, would no doubt face a stinging rebuke from this court. What is improper about this conduct? The answer is clear:the officer is steering all arrestees to a single counsel. In doing so, the officer is subverting the freedom to make informed decisions by

restricting the information available to the accused. The subversion is exacerbated if the detainees are not told of the right to search forany other counsel; further exacerbated if the accused is not provided any other means by which to search for a different counsel; andfurther exacerbated if the officer completely controls the actual physical process of contacting counsel on the phone. Now, I ask, how isthis behaviour made acceptable when the only counsel specifically named or provided by the officer is duty counsel? In my view, it isnot.

Constable Schnarr may not have handed out a lawyer's business card, but he effectively read from one when he read from thestandard right to counsel warning in his notebook. It had to be patently clear to the police officer in this case that the accused did not have a lawyer and did not know one. When asked toassert his right, the accused was standing at the roadside. There was no phone book. There was no legal directory. Indeed, there was nophone yet. Upon arrival at the police station, the police officer made the phone call on behalf of the accused.

He controlled 100% of themeans by which the accused was put in contact with counsel. The accused did not even have the opportunity to dial the toll free numberpreviously recited by the police officer. Contrary to the assertion made in the pre-written right to counsel, the accused did not have thepower to "telephone any lawyer" he wished. Without a phone book and free use of a phone, that power was illusory -- falsely advertised. [44] The right to counsel of choice first finds expression as a term of art in the Supreme Court of Canada in R. v. Conway, (SCC), [1989] S.C.J.

No. 70, albeit in the context of choice of trial counsel. It sees its first Supreme Court expression in thecontext of 10(

b) in R. v. Ross, (SCC), [1989] S.C.J. 2. It is now an entrenched aspect of the right to counsel in s. 10(b)of the Charter. See R. v. Willier, 2010 SCC 37. [45] I agree with Parry J. The right of an arrestee to “retain and instruct” counsel of choice without delay ought to include the rightto consult the internet with a view to choosing a lawyer.

To appreciate this, one need only consider the dilemma of a young, naïve andunsophisticated arrestee who has never had any dealings with the criminal law and finds himself charged with a serious criminal offence.Telling him that he may either consult a lawyer of his choosing, or duty counsel, without offering him the opportunity to consult theInternet, is essentially to force him into the hands of duty counsel should he wish legal advice. [46] Duty counsel is quite adept at providing advice to a detainee as concerns his immediate needs.

But, she is nonetheless, from theperspective of the arrestee, a lawyer chosen for him by the police, usually phoned by the police. Moreover, duty counsel is not in aposition to enter into a retainer, or a longer term solicitor-client relationship with the arrestee. Duty counsel is not in a position to offerher services at the bail hearing, nor to embark on preparation for a bail hearing. [47] In my view, “counsel of choice” at the arrest stage must include the right to access resources that would enable the arrestee tochoose a lawyer, and an obligation on the police to offer this resource.

This is the modern application of the duty on the police to informan arrestee of his right to counsel of choice coupled with the implementation duties imposed by s. 10(

b) summarized recently by theSupreme Court in R. v. Taylor, 2014 SCC 50. [48] The question I must then answer is whether, notwithstanding my personal views, as supported by many of my colleagues, therules of stare decisis forbid me from finding a breach of s. 10(

b) in this case. Are there binding authorities in Ontario, both from theSuperior Court and the Court of Appeal that reject this

interpretation of the rights afforded by s. 10(b)? [49] The Crown submits that the following judgments are such binding authorities: R. v. Richfield, (ON CA),[2003] O.J. No. 3230 (C.A.); R. v. Zoghaib, [2006] O.J. No. 1023 (C.A.); R. v. Antoninas, 2014 ONSC 4220; R. v Kumarasamy, [2002]O.J. No. 303 (S.C.J.); R. v. Ferose, [2014] O.J. No. 845 (S.C. J.) and R. v. Ruscica, 2019 ONSC 2442. [50] I do not find Richfield to be dispositive of the issue. In Richfield the accused had asked to speak to a particular lawyer.

Policefound that lawyer’s phone number and placed a call to him, leaving a message with the answering service. One hour and 45 minutes laterthe lawyer of choice had still not called back. Police offered the accused access to duty counsel and the accused said he did not want tospeak to duty counsel. He wanted to speak to his lawyer of choice. An officer explained to the accused just who duty counsel was and therole he plays, and so much as advised him to speak to duty counsel. The accused disregarded that advice.

The police then subjected theaccused to the breath procedure. [51] The Court of Appeal ruled that there had been no Charter breach since the accused had not acted diligently in securing legaladvice. The Court reasoned that the existence of duty counsel was an important factor to be taken into account when determiningwhether the accused had been diligent. The issue before me was not raised or discussed in Richfield. [52] In Zoghaib the accused had been stopped at a R.I.D.E. program.

After the arrest of the accused the police read to her what Iunderstand to be the standard notebook “right to counsel” incantation in Ontario: I'm arresting you for having excess 80 milligrams in 100 millilitres of blood while operating a motor vehicle. It's my duty to inform youthat you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also havethe right to free legal advice from a legal aid lawyer.

If you are charged with an offence you may apply to the Ontario Legal Aid Plan forassistance. 1-800-265-0451 is a toll-free number that will put you in contact with a legal aid duty counsel lawyer for free legal adviceright now. Do you understand? [53] The accused said she understood and when asked if she “wanted to call a lawyer now” she said she did not. Once back at thestation the accused was again asked if she wished to call a lawyer and she said “okay” but did not provide the police with the name of alawyer or the name of someone to contact.

The officer in charge then called duty counsel and the accused spoke to him for six minutes,after which she expressed no discomfort with her duty counsel encounter.

[ 54 ] There was a dispute in the evidence as to whether the accused had told the police en route to the station that she wanted to call her parents. The trial judge found it unnecessary to make a finding in this regard since it was clear that even if she had made that request it was never indicated to the police that she wished to speak to her parents in order to secure counsel, and the request to speak to her parents was not reiterated at the station when she was again asked if she wanted to speak to a lawyer. [ 55 ] The trial judge, Forsyth J., found that the police had breached the accused’s 10(

b) rights by telling the accused that they would call duty counsel, and then indeed calling duty counsel. He said: …. I find that it was incumbent upon P.C. Henry, when she decided to only put the out of context portion of the rights to counsel that she did to Ms. Zoghaib by confining herself to the single question of "Do you want to call a lawyer?", to explore what Ms. Zoghaib meant by her response of "okay". I find that P.C. Henry, under those particular circumstances present in this case, should have then asked Ms.

Zoghaib if she wished to call her own lawyer or did she mean that she was willing to talk to duty counsel, It is a simple enough question, and remembering that it is not a level playing field between police and the detainee, in my view, it is not too much to ask of P.C. Henry to be clear and unambiguous about what choice she was asking Ms. Zoghaib to make. R. v. Zoghaib , [2005] O.J. No. 5946 at para. 67 [ 56 ] Forsyth J. went on to exclude the breath results. [ 57 ] The Crown successfully appealed. See R. v. Zoghaib, [2005] O.J. No. 5947 (S.C.J.) .

Fragomeni J. ruled that the police had properly complied with their informational obligations at the roadside. [ 58 ] As for what transpired at the station is concerned, Fragomeni J. points out at paragraph 41 that appellant’s counsel had argued before him (although it does not seem to have been argued at trial) that: P.C. Henry was obligated to ask Ms. Zoghaib if she wanted a phonebook to look up the name of a lawyer prior to immediately going to call Duty Counsel.

By going directly to Duty Counsel without giving her an opportunity to look up the name of a lawyer did not mean she was waiving her right to counsel of choice. The defence argues that this sequence of events, and in light of Ms. Zoghaib's evidence that she felt that she should simply "follow the lead of P.C. Henry," resulted in an uninformed waiver of her right to counsel of choice . [ 59 ] Without ever expressly addressing this argument, he then ruled at paragraphs 47 – 49 as follows: The learned trial judge's conclusion that the question by P.C.

Henry at the station "Do you wish to call a lawyer" was an incomplete and ambiguous delivery of the informational component of the

section 10(

b) rights to counsel is in error. He concludes that in proceeding to call Duty Counsel and telling Ms. Zoghaib that she would be calling Duty Counsel, this had the effect upon Ms. Zoghaib of unintentionally inducing her to accept duty counsel as her manner of exercising her right to counsel as opposed to bringing up the idea of calling her parents to seek their assistance in contacting Mr. Katz or some other lawyer. In arriving at this conclusion, the learned trial judge erred in law. The informational component of the

section 10(

b) rights were satisfied at the scene of the arrest . At the station Ms. Zoghaib did not request to speak to a private lawyer nor did she advise P.C. Henry that she wanted to speak to her parents about contacting Mr. Howard Katz. (emphasis added) [ 60 ] The Court of Appeal upheld the decision of the

Summary Conviction Appeal Court. See R. v. Zoghaib, [2006] O.J. No. 1023 . The endorsement reads as follows: We are in substantial agreement with the analysis of the

Summary Conviction Appeal Court. The appellant was fully advised of her right to counsel at the roadside and understood those rights . On the finding of fact made by the trial judge, any subsequent misapprehension by the appellant of her right to contact her own lawyer as opposed to duty counsel was a product of her own thought processes, none of which were conveyed to or known by the officer. The

Summary Conviction Appeal Court correctly held that as a matter of law the appellant's unexpressed desire to speak to her own lawyer could not result in a breach of s. 10(

b) of the Charter. (emphasis added) The appeal is dismissed. [ 61 ] While the argument made before me by Mr. Butt was made before the

Summary Conviction Appeal judge, it was not the argument made at trial and did not figure in the trial ruling. As such, I do not feel that the fact that the appeal judge did not accede to the novel argument precludes me from ruling on the issue in accordance with the views I expressed above.

[ 62 ] What then is to be done with the fact that the Fragomeni J. does say in his ruling that “the informational component of the

section 10(

b) rights were satisfied at the scene of the arrest”? Am I, and every other provincial court judge in Ontario, bound to conclude that the rights to counsel as read to the accused in Zoghaib are Charter compliant? [ 63 ] In my view, the answer is yes, unless circumstances arise that require the police to augment the information provided to the accused. In other words, the law in Ontario is that the police, when they first arrest an accused , satisfy their informational Charter obligations if they tell the accused exactly what the police told the accused in Zoghaib .

Put another way, there is no obligation to inform an arrestee, when first arrested , that he has the right to access resources to help him choose counsel. However, an obligation to provide this latter information may nonetheless arise over the course of their dealings with the arrestee thereafter. [ 64 ] The further cases cited by Mr. Smith do not, in my opinion, go any further than Zoghaib , as concerns the issue before me. Each presents a different set of circumstances than those in the case at bar and none of them stands for the proposition that the information Mr.

Butt argues ought to have been supplied to Mr. Henry will never be required. [ 65 ] The issue before me then is: did circumstances arise in officers Greto and Armstrong’s dealings with the Mr. Henry that gave rise to this obligation? [ 66 ] In my view, the answer is “no”. Unlike in the several cases referred to above where circumstances arose which led my Ontario Court of Justice colleagues to find a Charter breach, no circumstances arose in the case at bar that created an obligation on the police to inform Mr. Henry that he had the right to consult a phonebook, or the Internet to find a lawyer. [ 67 ] Mr.

Henry understood his rights when they were first explained to him. When asked if he wanted to speak to a lawyer he said he did not. When asked again at the station he said he would wait. When he asked to speak to his wife he was allowed to do so. After his discussion with his wife he still made no mention of wanting to speak to any particular lawyer, nor did he ask for an opportunity to find one. Rather, he opted to speak to duty counsel, did so, and never complained about his encounter with duty counsel. [ 68 ] According to the law in Ontario, Mr. Henry’s 10(

b) Charter rights were not violated. (c) Section 24(2) [ 69 ] If I am wrong about there being no 10(

b) violation, I would nonetheless admit the breath readings. Applying the test set out in R. v. Grant , 2009 SCC 32 , I am of the view that any 10(

b) violation that might have occurred here was not particularly serious. Throughout their dealings with him, the police treated Mr. Henry with dignity and respect. If there was a breach it is a breach based on a rather novel

interpretation of the law which officers Greto and Armstrong likely knew nothing about. Moreover, I would have found that the impact of this breach on the accused was minimal. After all, he never asked for an opportunity to consult anyone, or anything for the purpose of choosing counsel, and he did get legal advice from duty counsel which he appeared to have been satisfied with. [ 70 ] The breath results are admissible and, based on Mr. Butt’s concession that if they are admissible the Crown’s case on the “over 80” is made out, I find that the “over 80” offence has been proven beyond a reasonable doubt. E.

CONCLUSION [ 71 ] I find Mr. Henry not guilty of impaired operation (count 1 on the information). I find him guilty of operating a motor vehicle with a blood alcohol concentration over 80 milligrams in 100 milliliters of his blood (count 2 on the information) . Released on June 19, 2019 __________________________ Justice Russell Silverstein